Harris v. State, F--76--488
| Decision Date | 05 October 1976 |
| Docket Number | No. F--76--488,F--76--488 |
| Citation | 555 P.2d 76 |
| Parties | Thomas Leon HARRIS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Thomas Leon Harris, Jr., hereinafter referred to as the defendant, was charged in the District Court, Tulsa County, Case No. CRF--73--228, with the offense of Robbery With Firearms, in violation 21 O.S.1971, § 801. He was tried by jury, convicted and sentenced to serve a term of thirty (30) years in the custody of the State of Oklahoma Department of Corrections at McAlester, Oklahoma. The defendant was granted post-conviction relief, and a new judgment and sentence was issued. From said judgment and sentence, the defendant has perfected his timely appeal to this Court.
The case was called for trial, and at that time a hearing was held on the defendant's motion to dismiss on the grounds that the defendant had been previously convicted in CRF--73--227, of felony murder, arising out of the same allegations present at the case at bar, and that to proceed would violate the defendant's right not to be placed twice in jeopardy. The motion was overruled and the trial continued.
The State's first witness, Stephen Tolley, testified that he was familiar with the Quik-Trip store located at the 4600 block North Lewis in Tulsa, Oklahoma, in a predominantly black area, and that on July 21, 1971, between 2:00 and 3:00 a.m., he passed by the store on his way home from work. He stated that he observed a white automobile, with its motor running and its lights off, parked beside the Quik-Trip store, and saw a black man walking toward the store. Mr. Tolley was unable to identify the man, and he could not state with certainty whether there was any one else in the automobile.
The State's next witness was John Robert Scott, who testified that on July 21, 1971, he was the district supervisor for Quik-Trip stores in Tulsa. He testified that in the early morning hours of the 21st of July, 1971 he was summoned to the Quik-Trip store located at the 4600 block of North Lewis. Upon arriving at the store he saw an ambulance and police cars outside the store and found the interior of the store in a state of disarray. Mr. Scott further testified that he observed a red substance on the floor of the back room. The witness stated that he had audited the said Quik-Trip store subsequent to the 21st day of July, 1971, and had determined that $80.00 was missing from the cash register. Mr. Scott testified on cross-examination that the Quik-Trip Corporation had offered a $5,000.00 reward for information leading to the arrest or conviction of anyone connected with the incident, but was unable to state whether such money was ever paid.
The State called as its next witness Officer Roy Goodenough. The officer testified that he had been employed as a police officer for the City of Tulsa for 11 years and was assigned to the identification division. Officer Goodenough was offered as an expert witness in the area of recovering latent fingerprints, and was accepted without objection. The officer stated that on July 21, 1971, at about 3:30 a.m., he was called to process the scene of an armed robbery at the Quik-Trip store on North Lewis. He substantially corroborated the testimony of Mr. Scott as to the appearance of the store, and went on to explain that he had photographed the store (State's Exhibits 1--11) and had taken latent fingerprints from articles in the store, including the cash register (State's Exhibit 12).
Officer Roy Nuttall, also a police officer for the City of Tulsa, was the next witness called for the State. Officer Nuttall was also assigned to the identification division, and was offered to the court as an expert witness in the field of identifying known prints with unknown prints, and was accepted without objection. The officer then identified State's Exhibit No. 13, as a fingerprint card containing 10 rolled and 10 plain impressions of the defendant's fingerprints, and was able to further identify a thumb print made by the defendant which was recovered from the Quik-Trip store.
The State's next witness was Officer Robert Maras, another police officer for the City of Tulsa. The officer stated that he was dispatched to the Quik-Trip store on North Lewis at approximately 3:30 a.m. on July 21, 1971. Upon entering the store, the officer found the scene in disarray and found the employee Mr. Baker, gasping for air with a hole in the center of his forehead from which blood was flowing. Officer Maras further testified that subsequent to his arrival at the store, several other officers, including Officer Goodenough, arrived and proceeded to process the scene.
The next witness for the State was Debra Avance. She testified that she knew the defendant, and that on July 21, 1971 he was present at her house at approximately midnight or 12:30 a.m., along with her husband Reginald Avance, Floyd Harris, Michael Booker, Reginald Henderson, and Willie Horn. She stated that she overheard a conversation in which Floyd Harris said 'something about robbing a store,' and that he had a gun in his possession. She did not see a gun in the defendant's possession nor did the defendant say anything. Mrs. Avance testified that all the men, except her husband, left the house about 1:30 a.m. She stated that Thomas Harris, Michael Booker, Reginald Henderson, and Floyd Harris returned an hour or an hour and a half later, and proceeded to have another conversation with her husband. The witness stated that she heard Floyd Harris say that 'he had to shoot the man so he wouldn't identify him,' and Thomas Harris said that 'he turned the cash register over trying to get the money out and spilled the change all over the floor.' (Tr. 207, 208). Mrs. Avance stated that she had been convicted of tampering with United States mail and of two counts of forgery. She also stated that she was aware that a $5,000.00 reward had been offered in connection with the case.
The State next called her husband, Reginald Brook Avance, as a witness. He testified that he knew the defendant, and that they had been together on July 21, 1971, at his wife Debra's house, along with Willie Horn, Michael Booker, Reginald Henderson, Floyd Harris, and Debra Avance. Mr. Avance testified that the defendant first came up with the idea of robbing a store saying, 'he'd been by the store before and it was a bunch of money there.' The defendant also stated 'he thought it was a good idea to go rob it.' (Tr. 234, 235) The witness stated that all the men, except himself and Willie Horn, left the house about 1:30 a.m., and that Floyd Harris had a gun in his possession.
The witness further testified that the men returned to his house approximately an hour later and got him out of bed to tell him about a robbery they had committed. He stated that Floyd Harris admitted 'shooting the dude,' and that the defendant described opening the cash register.
Mr. Avance testified that he was in the State penitentiary serving time for robbery by force and fear, purse snatching, burglary, and forgery, when he first notified the Tulsa District Attorney in December of 1972, that he had information regarding July 21, 1971. The witness stated further that he had not been promised anything by the District Attorney's office in return for testifying in the case at bar, nor was he aware of the reward offered in connection with this case at the time he informed the District Attorney's office of his information. He was, however, made aware of the reward at the time of the defendant's arrest.
The next witness for the State was Michael Booker. He testified that he knew the defendant and had occasion to be with him on July 21, 1971, at the Avance residence. He stated further that he and the defendant along with Reginald Henderson and Floyd Harris, left the Avance residence at approximately 2:00 or 2:30 a.m. in a white automobile and went to 4600 and Lewis. The witness testified that when he parked the car leaving the motor running beside the store, Floyd Harris and the defendant got out and went into the store. He further testified that Floyd and the defendant were gone about 10 minutes and upon returning, Floyd stated 'I had to shoot the dude.' The four men then returned to the Avance residence. Mr. Booker stated that he was presently in jail for robbery but that he had not been granted immunity from prosecution for testifying in the case at bar, nor had the District Attorney's office promised him anything. He was aware of the reward offered in connection with this case but had not been promised any of the money in return for testifying.
The final witness for the State was Reginald Smith Henderson. He substantially corroborated the testimony of Michael Booker, regarding the details of the incident and stated that the defendant had said 'he had trouble getting the cash register open.'
The State rested its case.
The defense called as its first witness Charles Corey, who testified that he had gone to the Quick-Trip store on North Lewis on July 21, 1971, at approximately 3:00 a.m. and then again about 3:30 a.m. He stated that he had noticed nothing unusual about the store. He testified that the employee appeared to be in good health on both occasions.
The next witness for the defense was Carolyn Harvey. She testified that during the latter part of July, 1971, a party was held at her parent's house which the defendant attended. She stated that he did not leave the party until the morning of the next day.
The next witness called by the defense was Helen Louise Abraham. She substantially corroborated Carolyn Harvey's testimony concerning the party in the latter part of July 1971, at which the defendant was in attendance. Neither she nor Carolyn Harvey affirmatively stated...
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