Parks v. State, F-79-3

• Decision Date: 26 August 1982
• Docket Number: No. F-79-3,F-79-3
• Citation: 1982 OK CR 132,651 P.2d 686
• Parties: Robyn LeRoy PARKS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 686

651 P.2d 686

Robyn LeRoy PARKS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-3.

Court of Criminal Appeals of Oklahoma.

Aug. 26, 1982.

Rehearing Denied Sept. 28, 1982.

An appeal from the District Court, Oklahoma County; Joe Cannon, District Judge.

Robyn LeRoy Parks, appellant, was convicted of Murder in the First Degree in Oklahoma County District Court, Case No. CRF-77-3159. He was sentenced to death and appeals. AFFIRMED.

Robert A. Ravitz, Asst. Public Defender, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., State of Oklahoma, Susan Talbot, Asst. Atty. Gen., Chief, Appellate Criminal Division, Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

Robyn LeRoy Parks was found guilty of Murder in the First Degree pursuant to Laws 1976, ch. 1, § 1, now 21 O.S.1981, § 701.7 in the District Court of Oklahoma County, Case No. CRF-77-3159. Subsequent to a hearing on aggravating and mitigating circumstances, the jury voted to impose the death penalty.

At approximately 4:30 a. m. on August 17, 1977, the victim, Abdullah Ibrahim was found shot to death on the floor of the Gulf Service Station where he was employed. An unused charge slip bearing various notations on both the front and back, which was apparently used as a scratch pad to compute the customers' purchases and figure tax, was found at the scene of the homicide by an investigating police officer. This same charge slip also had a license tag number written across the front of it, XZ-5710. It was subsequently determined that the owner of the vehicle bearing that license tag number was Robyn LeRoy Parks.

On August 29 and 30, 1977, James Clegg, an informant, allowed representatives of the State to tape two phone conversations that Clegg had with the appellant who was then in San Pedro, California. During the course of the August 29th telephone conversation, Parks told Clegg that he shot Abdullah Ibrahim because Ibrahim had written down his tag number and Parks was afraid Ibrahim would call the police when he realized Parks' credit card was hot. During the August 30th phone conversation, Parks revealed the location of the gun that he used to shoot the victim. At that location, a .45 calibre pistol in a holster and a box of .45 calibre ammunition was found by Clegg who was accompanied by a police detective.

Robyn Parks testified in his own defense that the answers he gave on the two tapes were not true, that he had made the incriminating statements in order to protect his family from further harassment. He claimed that on an earlier day he had obtained gas at the station and because he did not have the money with which to pay, the attendant wrote down his license tag number. He returned the same night to pay for the gas. He further testified that on the night of the murder, he had stayed at the home of Elaine Sheets.

During the second stage of the trial, the State offered three aggravating circumstances to justify imposition of the death penalty. In mitigation, the State offered the testimony of Robyn Parks' father. The jury found one aggravating circumstance, that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.

Error is first alleged in the trial judge's refusal to allow an instruction on the offense of Murder in the Second Degree pursuant to Laws 1976, ch. 1, § 2, now 21 O.S.1981, § 701.8(2). The desired instruction would have allowed the jury to determine, based on the evidence, that the appellant murdered the victim while the appellant was committing the felony of using a fraudulent credit card in violation of Laws 1981, ch. 86, § 4, now 21 O.S.1981, § 1550.22.

Both parties agree that a defendant is entitled to have an instruction on a lesser included offense where the evidence warrants it. Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); 22 O.S.1971, § 916. The trial court determined as a matter of law that the evidence was insufficient in the present case to allow the jury to find that the appellant was using a fraudulent credit card, thus there could be no justification for a finding of second degree murder.

The sole evidence offered to the jury to support a finding that the appellant was using a fraudulent credit card was the appellant's own statement made during the tape recorded conversation with the informant, Clegg. Aside from that statement no other evidence was ever introduced to show credit card use, such as a credit card receipt for gasoline, or any evidence of a credit card or of missing gasoline.

We agree that the trial judge was correct in not allowing an instruction on second degree murder. Judge Cannon stated:

As a matter of fact, the defendant's own testimony was that he didn't even own a credit card. But even in the State's case there was no evidence of a credit card, except his statements and his statement alone does not prove the corpus delecti of the crime. There is no corpus delecti of any other felony having been committed .... There is no evidence of it and, consequently, it's Murder One or nothing. (Tr. 543)

See also, DeLaune v. State, 569 P.2d 463 (Okl.Cr.App.1977) quoting Hall v. State, 538 P.2d 1113, 117 (Okl.Cr.App.1975):

... The general rule is that in every criminal prosecution the burden rests on the State to prove the corpus delecti beyond a reasonable doubt. This must be proven by evidence other than a confession, the confession being admissible merely for the purpose of connecting the accused with the offense charged.

Because there was no evidence to support a lower degree of the crime charged or an included offense, it was not only unnecessary to instruct on second degree murder, but the court had no authority to ask the jury to consider the issue. Irvin v. State, 617 P.2d 588 (Okl.Cr.App.1980); Rogers v. State, 583 P.2d 1104 (Okl.Cr.App.1978).

In a supplemental brief, the appellant alleges that his conviction for first degree murder cannot be sustained for the reasons that his tape recorded statements were not corroborated by independent proof of the corpus delicti. We agree, as we have already stated, that the State must prove the corpus delecti beyond a reasonable doubt by evidence other than a confession. DeLaune v. State, supra. The appellant acknowledges that evidence introduced by the State established that a homicide was committed, but argues there was insufficient proof of the corpus delecti to corroborate his confession since no evidence was presented connecting him with the actual commission of the offense independent of his statements.

This contention misconstrues the definition of corpus delecti and the extent of the proof the State introduced to connect the appellant to the crime. The "corpus delecti" means the actual commission of a particular crime by someone. Bond v. State, 90 Okl.Cr.App. 110, 210 P.2d 784 (1949). The corpus delecti may be established without showing that the offense charged was committed by the accused. Webb v. State, 550 P.2d 1360 (1976).

In the present case, the testimony of the police and the medical examiner established that a homicide was committed, and the State therefore clearly established the corpus delecti by evidence independent of appellant's statements. Further evidence introduced by the State in the form of the credit card slip bearing the appellant's license tag number was sufficient to link the appellant to the corpus delecti of the crime. We therefore conclude that the evidence is sufficient to sustain the conviction and this proposition is without merit.

Secondly, the appellant contends that the trial court committed fundamental error by limiting the circumstantial evidence instruction to cover only the issue of malice aforethought. He argues that because there was a complete lack of any direct evidence to show he was connected to the crime, a general circumstantial evidence instruction should have been given. However, the tape-recorded conversations introduced at trial, in which the appellant admitted that he committed the crime, provided direct evidence linking the appellant to the crime.

Also, no objection was made at the time the instructions were given, nor was an alternative instruction offered. When the evidence is both direct and circumstantial, it is not error to fail to give a circumstantial evidence instruction when none is requested. Grimmett v. State, 572 P.2d 272 (Okl.Cr.App.1977). Therefore, the trial court did not commit error by failing to provide a general circumstantial evidence instruction.

The third and fourth propositions of error contend that the trial court violated the appellant's Sixth and Fourteenth Amendment rights by excusing six jurors for cause because of their opposition to the death penalty. It is first alleged that the trial court failed to fully inquire of these six jurors whether they could consider the death penalty as required by the juror's oath. The appellant argues that this failure to inquire violated the holding of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). There, the United States Supreme Court recognized that the State might not exclude jurors because of their views on the death penalty unless "... they could never vote to impose the death penalty or ... they would refuse even to consider its imposition in the case before them." 391 U.S. 510, at 512, 88 S.Ct. 1770 at 1772.

In the present case, the trial judge asked each juror the following question.

In a case where the law and evidence warrant, in a proper case, could you without doing violence to your conscience, agree to a verdict imposing the death penalty?

If a juror responded in the negative, the judge would then ask:

If you found beyond a reasonable doubt that the defendant was guilty of murder in the first degree and if under the evidence, facts and circumstances of the case, the law would permit you to consider a sentence of death, are your reservations about the death penalty such, that...