Barnett v. State

• Decision Date: 18 February 1977
• Docket Number: No. F--75--377,F--75--377
• Citation: 560 P.2d 997
• Parties: Calvin BARNETT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 997

560 P.2d 997

Calvin BARNETT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--377.

Court of Criminal Appeals of Oklahoma.

Feb. 18, 1977.

An appeal from the District Court, Tulsa County; Raymond Graham, judge.

Calvin Barnett was convicted for the offense of First Degree Murder; was sentenced to death, and appeals. Sentence MODIFIED to Life Imprisonment, and as so Modified, the judgment and sentence is AFFIRMED.

Alvin L. Floyd and Steven J. Berg, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Calvin Barnett, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Tulsa County, Case No. CRF--74--187, for the offense of First Degree Murder, in violation of 21 O.S.Supp.1974, § 701.1, 2. In accordance with the provisions of 21 O.S.Supp.1974, § 701.3, the defendant was thereafter sentenced to suffer death, and from said judgment and sentence a timely appeal has been perfected to this Court.

The State's first witness was Officer Sam Cox, a Tulsa Police Officer who testified that at 9:24 a.m. on the 18th day of January, 1974, he received a call to go to an area near Pine and St. Louis Streets in the City of Tulsa, Tulsa County, Oklahoma. When he arrived at that location he was directed to a point approximately 300 feet east of the intersection of Pine Place and St. Louis Place where he found a white 1965 Chevrolet, partially backed off of Pine Place. In the front seat of the Chevrolet there was a Negro male, in his early to middle fifties, dressed in a white T-shirt, a brown coat and dark slacks, who appeared to be dead. Officer Cox testified that State's Exhibits Nos. 1 through 20 were photographs of the scene that he had just described, and that the photographs accurately and correctly depicted the scene as he remembered it being on January 18, 1974.

Officer Cox further testified that on January 21, 1974, he and several other officers of the Tulsa Police Department arrested the defendant at 1619 East Ute Street in the City of Tulsa; that he booked the defendant in at the Tulsa Police Station, and that two billfolds, one black and one brown, were removed from separate pockets of the defendant, along with other items. The witness identified State Exhibit No. 21, as the black billfold he had removed from separate pockets of the defendant at the booking. The witness then made a courtroom identification of the defendant as the person he had arrested.

The State then called Officer Paulette Kracht, a police officer for the City of Tulsa, who testified that she arrived at the scene after Officer Sam Cox; her testimony concerning the scene was essentially the same as that of Officer Cox. She further stated that there was much blood on the inside of the vehicle and on the person who was lying on the front seat of the automobile.

The State then called Dr. Leo Lowbeer, Chief Pathologist at Hillcrest Medical Center, to the stand. He testified that on January 19, 1974, at 9:00 a.m., he performed an autopsy on one Leroy Augustus Brewer and determined the cause of death was the perforation of the aorta by a knife or knife-like object, and that the deceased had an alcoholic level in the blood of .348 grams percent. On cross-examination, Dr. Lowbeer stated that there were ten stab wounds on the body, two on the fingers, one in the upper abdomen, and one beneath the left collar bone, and the remainder around the neck area of the body.

The State then called Officer Jess McCullough of the Homicide Detail, Tulsa Police Department, to the stand. Officer McCullough testified to essentially the same facts concerning the scene as did Officers Cox and Kracht. Additionally, Officer McCullough testified that the car at the scene, containing the body, checked to one Leroy Augustus Brewer. He stated that on January 21, 1974, he recovered a hunting knife, black tape-bound and scabbard from Brenda Atkinson, which he observed her remove from a closet in her apartment at 1619 East Ute in the City of Tulsa. He identified State Exhibit No. 25, as that knife.

The State read the testimony of Barbara Hill from the transcript of the preliminary hearing, after first showing that she was hot available for the trial. Her testimony was that on January 17, 1974, she resided at 1619 East Ute and that some time around midnight on that night, the defendant came doorbell incessantly. The defendant was had in his possession 'a long knife and it had a black handle wrapped in tape with a little black case.' She further testified that she saw the defendant with a black billfold, and that she believed that this was on Friday (January 22, 1974). On cross-examination, she stated that the defendant was looking at the wallet; that she went upstairs in the apartment; that when she came back down the defendant was in the kitchen and had been burning some papers in the sink.

Brenda Atkinson then took the stand and made a courtroom identification of the defendant. She stated that on the 17th of January, 1974, she was residing with her cousin Barbara Hill, and that shortly after midnight, Thursday, going into Friday morning, the defendant appeared at her apartment and knocked on the door. After entering, the defendant requested that if anyone asked, to say that he had been at her apartment all night. The defendant produced a wet knife which she identified as State Exhibit No. 25, and requested that she put it up for him. She put the knife in her closet on the top shelf. She further testified that some time thereafter she saw the police coming and she hid the knife in the furnace closet door. She informed the police that the defendant was not there. When the defendant came in through the back door she told him that the police had been there. The defendant left through the front door, and officers arrested him. Later, when detectives questioned Brenda about the knife, she initially lied, but finally showed them where she had hidden the knife.

Wilburn Phillips, defendant's cousin, testified that on January 17, 1974, the defendant wanted to go to his girlfriend's house on Greenwood, but Wilburn did not have enough gas. However, he agreed to take him as far as Pine and Peoria Streets where he let the defendant out of his car between 8:00 and 9:00 p.m. at the D X Station located there. Late that night, the defendant came to Phillips' home and rang his doorbell incessantly. The defendant was out of breath and was wearing a green army coat. He had blood all over his hands and possessed a bloody knife which was wrapped in black tape, which he identified as State Exhibit No. 25.

The defendant advised his cousin to tell anyone who might be looking for him that he had been there at his cousin's house. Upon asking what had happened, the defendant advised that some young punks had tried to get smart with him and that he stabbed them. The defendant went upstairs to wash his hands and the knife. Shortly thereafter, the defendant left for Brenda's house, which was close-by. The next day the defendant came back to his cousin's house where he cut out a newspaper article relating to Leroy Brewer, which stated that the victim had been stabbed four times. The defendant told his cousin that the article was 'a damn lie,' that he was stabbed two times.

On Sunday, that same weekend, while the defendant was in the home and presence of his cousin and his cousin's wife (Rhonda Phillips), the defendant produced the billfold identified as State Exhibit No. 21, and a D X credit card bearing the name of the homicide victim. The defendant threatened to cut their throats if they said anything about it. Wilburn stated that on one of the occasions when he was with the defendant during the weekend, he asked the defendant, '. . . what have you did and why did you do it for, and he just said something come over him.' (Tr. 303)

Subsequently, Wilburn Phillips called the police. Wilburn's wife, Rhonda, corroborated portions of her husband's testimony.

Cordelia Brewer testified that she was the wife of the victim, Leroy Brewer; that he carried a D X credit card and traded at the D X Station on Pine and Peoria. She stated that State Exhibit No. 21 was a billfold just like the one she had given to her husband just after Christmas, and that he had the billfold with him when he left the house on the 17th.

Testifying in his own behalf, the defendant stated that his cousin did not take him to Pine and Peoria Streets on the date of the murder, but that the trip had occurred on the previous Tuesday. He stated that he occasionally spent the night with Brenda and Barbara at their apartment and on other occasions had visited with them for several hours, playing dominoes. He testified that Wilburn Phillips was a pimp and that Barbara was a prostitute.

Essentially, the defendant's account was that the victim had appeared at the apartment and obtained the services of Barbara. When the victim did not pay, he was confronted by Wilburn. Although the victim offered to go home and return with the money, Wilburn insisted that he and Barbara accompany him in his car. Wilburn wanted the defendant to accompany them, but he declined. Wilburn then gave the defendant the keys to his car and requested that he follow him. The defendant testified that he followed them to St. Louis and Pine Place where Barbara stopped the car and Wilburn exited from the driver's side from the back seat. When Barbara jumped out the defendant backed up Wilburn's car and returned to the apartment. The stated reason that he did not go to the car and pick them up was because he knew something was going on and did not want to have a part in it. Later, Barbara came in alone and gave him a black billfold, which was empty. He had no conversation with her concerning the billfold, but accepted it because he had left his billfold in another guy's car.

He admitted the knife in question was his, but...