Stout v. State

• Decision Date: 24 October 1984
• Docket Number: No. F-80-470,F-80-470
• Citation: 1984 OK CR 50,693 P.2d 617
• Parties: Billy Gene STOUT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 617

693 P.2d 617

Billy Gene STOUT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-470.

Court of Criminal Appeals of Oklahoma.

Oct. 24, 1984.

Rehearing Denied Jan. 22, 1985.

Amos E. Black, III, Anadarko, for appellant.

Michael C. Turpen, Atty. Gen., John O. Walton, Asst. Atty. Gen., Deputy Chief Crim. Div., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Appellant, Billy Gene Stout, was charged with, tried for, and convicted of two counts of Murder in the First Degree, pursuant to 21 O.S.1981, § 701.7(A), in Case No. CRF-77-156 in the District Court of Caddo County, State of Oklahoma. Upon recommendation of the jury, appellant was sentenced to death on each count. From said judgments and sentences, appellant has perfected this appeal. We affirm.

Although the brief submitted by counsel for the appellant is almost four times as long as permitted by Rule 3.5(C) of the Rules of the Court of Criminal Appeals, Title 22 O.S.1981, Ch. 18, App., we allowed it to be filed. We have carefully examined each argument presented in the brief but, due to its length, will not address the more frivolous subpropositions of error.

I.

Appellant's first assignment of error is two-fold. He contends that the evidence adduced at preliminary hearing was insufficient to bind him over for trial and that his motion for directed verdict should have been granted at the end of the State's case. As the record before us does not contain the transcript of the preliminary hearing, we are unable to consider his first contention. See Hanna v. State, 560 P.2d 985 (Okl.Cr.1977). In regard to his second contention, we cannot agree.

This court has consistently held that the trial court should overrule a demurrer when there is any competent evidence to support the allegations in the information. Renfro v. State, 607 P.2d 703 (Okl.Cr.1980). Furthermore, once the appellant presents evidence in his own defense, the demurrer is waived, and the question of sufficiency of the evidence is determined by an examination of the entire record viewing the evidence in the light most favorable to the State. Phillips v. State, 641 P.2d 556 (Okl.Cr.1982).

The following was adduced at trial. The victims in this case, Opal and Elmo Gandy, were appellant's sister and brother-in-law with whom he had previously lived. The Gandys were last seen alive by their son Lawdis Gandy and by a store clerk who sold them dog food at approximately 1:30 a.m. on July 18, 1979. A few hours later, the Gandys were beaten to death with a pipe-like instrument in the bedroom of their home in Anadarko. The time of death was estimated to be 5:00 a.m. Several neighbors testified that that was about the time that they had heard screams followed by a pounding noise.

A witness who had chatted with appellant at the bus station in Chickasha on July 17, 1979, testified that appellant told her he was taking the bus to Anadarko to visit the Gandys. Appellant was seen near the Gandy residence in the late afternoon and early evening hours of July 17, 1979. On the morning of the homicides, before the bodies were discovered, he was seen in the Gandys' yard at 8:30 a.m., according to one witness, and between 8:00 and 10:00 a.m., according to another. At approximately 9:00 a.m., appellant purchased a new pair of shoes at a store in Chickasha, which is eighteen miles from Anadarko. The car belonging to the Gandys but missing from their residence after the homicides was found abandoned in a parking lot one and one-half blocks from the shoe store and near the bus station where appellant bought a ticket to Oklahoma City.

When appellant was arrested in Ardmore on July 19, 1979, he told the police and O.S.B.I. agents that he could not remember where he had been or what he had done in the last three days. Accountings of the events he could remember varied from interview to interview. At first, appellant denied having been in Anadarko at all. In a subsequent interview he admitted that he had been in the Gandys' home the morning they were murdered, but at trial he denied making this admission. During one conversation, appellant remembered having heard a dog bark and remarked, "Oh, my God, that could of [sic] been George." "George" was the name of the Gandys' dog. An analysis of an ink pen appellant was carrying at the time of his arrest showed the presence of human blood.

A couple of witnesses testified that appellant harbored ill feelings toward his brother-in-law. Appellant had told one witness that had he not moved from Anadarko, he would have killed Elmo Gandy.

Although Elmo Gandy usually carried a large sum of cash, no money was found in the victims' home. When appellant was arrested, he was carrying over four hundred dollars in cash.

We find that this evidence was sufficient for the jury to conclude that appellant unlawfully and with malice aforethought caused the death of Opal and Elmo Gandy. Accordingly, the trial court did not err in overruling the motion for directed verdict, and the evidence was sufficient to justify a verdict of guilty.

II.

Appellant's next argument is that the trial court erred in failing to suppress admissions and physical evidence obtained as a result of a warrantless arrest that appellant believes was made without probable cause. He maintains that because the arrest was illegal, the fruits thereof should have been suppressed. We agree, however, with the trial court's ruling that appellant's arrest was supported by probable cause.

At the time of arrest--stipulated at the Jackson-Denno hearing to be when the Ardmore police officer took Stout to the police station for questioning--the investigating O.S.B.I. agent who requested that appellant be picked up knew that Opal and Elmo Gandy had been murdered in the early morning hours of July 18, 1979, that appellant had traveled to Anadarko on the seventeenth to see the victims, and that appellant had in fact been at or near the Gandy residence the afternoon before and the morning after the homicides. Further, the car missing from the victims' residence was recovered in Chickasha one and one-half blocks away from a shoe store where appellant purchased a new pair of shoes the morning of the homicide, and appellant bought a bus ticket to Oklahoma City at the Chickasha bus station that same morning. That appellant was Opal Gandy's brother and that appellant had not reported the murders to the police were also known.

If a police officer arrests a person without a warrant, the arrest is not unlawful if the officer, upon his own knowledge or upon facts communicated to him by others, has reasonable cause to believe the person has committed a felony. Satterlee v. State, 549 P.2d 104 (Okl.Cr.1976). We find that the facts within the knowledge of the officer were sufficient to warrant a prudent man in believing that the appellant had committed an offense. Thus, the officer had probable cause to make the arrest. See Greene v. State, 508 P.2d 1095 (Okl.Cr.1973).

Having determined that the arrest was not illegal, we now turn to appellant's assertion that he did not knowingly and intelligently waive his right to remain silent and his right to counsel. Appellant makes numerous allegations under this proposition of error in an attempt to show that his rights were violated. We have carefully examined the record and find no merit in any of his contentions. Appellant's own testimony elicited at trial by defense counsel showed the voluntary nature of his statements. Each time appellant was questioned by officers, he was advised of his Miranda rights. He stated on every occasion that he understood those rights and wished to talk to the officers. Appellant testified that he was advised that he had a right to a lawyer but that he did not want one, that he wanted to keep on talking. He also admitted that he knew he was being questioned as a suspect, but that he requested that the O.S.B.I. agents return "time and time again" to talk to him. We are unable to find any violation of appellant's rights in the record and conclude that his statements were voluntarily made and therefore properly admitted at trial.

III.

That the trial court erred in admitting appellant's uncorroborated confessions and statements is appellant's third assignment of error. Appellant relies on Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954) and Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) for the proposition that a defendant's confession must be corroborated in order to introduce the confession against the defendant and convict the defendant on the basis of that confession. Appellant argues that sufficient corroboration was lacking in the case at bar.

Initially we note that no confession was made or introduced in this case. Appellant did, however, make certain admissions which may have meant the difference between acquittal and conviction. An admission which assumes such importance should not go uncorroborated. See Smith, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192.

The corroboration rule originally required independent proof in serious crimes of violence that someone had indeed inflicted the violence, the so-called corpus delicti. Once the existence of the crime was established, however, the guilt of the accused could be based on his otherwise uncorroborated confession. Id. A somewhat relaxed version of this rule was pronounced in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 and adopted by this Court in Jones v. State, 555 P.2d 63 (Okl.Cr.1976). Our rule is that once substantial evidence of the corpus delicti is introduced, the confession of the defendant is admissible, provided that together they furnish the basis for a finding of the corpus delicti and the guilt of the defendant, both beyond a reasonable doubt. In the case before us, the existence of the crime and the defendant's guilt both were proved beyond a reasonable doubt by the evidence in conjunction with the extrajudicial...