Atnip v. State
| Decision Date | 19 May 1977 |
| Docket Number | No. F--76--236,F--76--236 |
| Citation | 564 P.2d 660 |
| Parties | Donald ATNIP, and Margie Green Atnip, Appellants, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
James B. Bratton, McAlester, for appellants.
Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., James W. McCann, Legal Intern, for appellee.
Appellants, Donald Atnip and Margie Green Atnip, hereinafter referred to as defendants, were charged in the District Court, Pittsburg County, Case No. CRF--74--247, with the offense of Burglary, Second Degree, in violation of 21 O.S.1971, § 1435. They were tried by a jury, convicted and punishment was fixed for defendant Donald Atnip at a term of seven (7) years, and for defendant Margie Green Atnip at a term of two (2) years in the Oklahoma State Penitentiary. From these judgments and sentences a timely appeal has been perfected to this Court.
Briefly stated, the facts of this case are as follows. On the 11th day of December, 1974, the home of Jerome Amaranto was burglarized. On the same day Everett Stewart, Sheriff of Johnson County, and Doug Green, Sheriff of Atoka County, engaged in a search of the defendants' home pursuant to a search warrant after an investigation into various burglaries in Pittsburg County as well as other counties. While the search was in progress, the defendants returned home. Their car was searched, and various items belonging to Jerome Amaranto were found in said vehicle. The defendants were arrested. Furthermore, evidence was admitted concerning the investigation of other burglaries in Pittsburg County as well as other counties prior to the issuance of the above stated search warrant.
Clayton Wayne Atnip, step-nephew of the defendants, admitted taking part in the Amaranto burglary on December 11, 1974, and added that Margie Green Atnip drove the car to the scene of the burglary and waited while he and Donald Atnip burglarized the house. This witness also testified to taking part in approximately 15 other burglaries with the two defendants.
Donald Atnip took the stand in his own defense and admitted to taking part in the Amaranto burglary, but denied that his wife, Margie Green Atnip, participated. He stated that his wife was at a ballgame 'down the road' at the time of the burglary. Margie Green Atnip then took the stand and substantially corroborated the testimony of her husband, denying that she had participated in the Amaranto burglary or any other burglary.
The defendants assign as error the trial court's failure to grant their motion to dismiss on the ground that said defendants had been denied a speedy trial as required by Art. 2, § 20, of the Oklahoma Constitution. The information in this case was filed on December 16, 1974, and amended several times thereafter. Preliminary hearing was held on January 21, 1975, and arraignment was held on January 30, 1975; however, the trial was not commenced until September 16, 1975. The motion to dismiss was filed on September 8, 1975, and heard on September 15, 1975, wherein the State failed to advance any reason for the delay.
This Court has set forth four factors to be weighed in determining whether there has been an infringement of a defendant's right to a speedy trial, to wit: (1) whether or not the defendant affirmatively asserted the right, (2) length of delay, (3) reason for the delay and (4) prejudice to the defendant. Rodgers v. State, Okl.Cr. 551 P.2d 295 (1976). As noted above, the delay from the time the information was filed to the date of trial was approximately nine months and the State sets forth no reason for the delay. However, it is apparent that the defendants failed to assert their right to speedy trial until filing their motion to dismiss on September 8, 1976. Further, the defendants failed to show how they were prejudiced in view of the fact that it appears that Donald Atnip was incarcerated for another crime during much of the period of delay, and Margie Green Atnip was out on bail after April 11, 1975. Also, there was no assertion by the defendants that their defense was impaired by said delay.
Furthermore, in Bauhaus v. State, Okl.Cr., 532 P.2d 434 (1975), this Court cited the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972), for the proposition that "(F)ailure to assert the right (to a speedy trial) will make it difficult for defendant to prove that he was denied a speedy trial." Also, Brummit v. Higgins, 80 Okl.Cr. 183, 157 P.2d 922 (1945), concerning the proposition that 'if the defendant is not on bail, the law makes the demand (for new trial) for him,' is not...
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Hooker v. State
...where crimes are highly distinctive, almost like a signature, or where one crime depends upon and facilitates another); Atnip v. State, 564 P.2d 660, 663 (Okl.Cr.1977).13 See Duvall v. State, 825 P.2d 621, 626 (Okl.Cr.1991), cert. denied, 506 U.S. 878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992) ......
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Smith v. State
...Reply Brief at 13 (citing Hammon v. State, 1995 OK CR 33, ¶ 65, 898 P.2d 1287, 1302; Atnip v. State, 1977 OK CR 187, ¶ 10-11, 564 P.2d 660, 663)). Again, Smith confuses the question of admissibility of evidence with the separate question of whether multiple offenses should be joined togethe......
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Thomas v. State
...is inadmissible unless used to show motive, intent, absence of mistake or accident, identity or a common scheme or plan. Atnip v. State, Okl.Cr., 564 P.2d 660 (1977); Hawkins v. State, Okl.Cr., 419 P.2d 281 (1966); Roulston v. State, Okl.Cr., 307 P.2d 861 The State argues that the testimony......
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Burks v. State
...not connected with that for which one is on trial must be excluded. Smith v. State, 5 Okl.Cr. 67, 113 P. 204 (1911) and Atnip v. State, Okl.Cr., 564 P.2d 660 (1977). On the other hand, there are five generally accepted exceptions to this rule. Evidence of other offenses may be admissible wh......