Beeks v. State, F--76--680

• Decision Date: 26 April 1977
• Docket Number: No. F--76--680,F--76--680
• Citation: Beeks v. State, 563 P.2d 653 (Okla. Crim. App. 1977)
• Parties: John Edward BEEKS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 653

563 P.2d 653

John Edward BEEKS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--680.

Court of Criminal Appeals of Oklahoma.

April 26, 1977.

Richard A. Hoffman, Frank H. McCarthy, Legal Intern, Asst. Public Defenders, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Catherine Gatchell Naifeh, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, John Edward Beeks, hereinafter referred to as defendant, was charged in the District Court, Tulsa County, Case No. CRF--75--3082, with the offense of Robbery With Firearms, in violation of 21 O.S.Supp.1973, § 801. He was tried and convicted by a jury, and punishment was set at twenty (20) years in the custody of the Department of Corrections. From said judgment and sentence this timely appeal has been perfected.

Briefly stated, the facts in this case are as follows:

Two individuals identified by William Grebing as the defendant and co-defendant Robert Lee Williams (F--76--685), entered a Get-N-Go grocery store in Tulsa, Oklahoma on December 31, 1975, at approximately 4:00 a.m. and selected various grocery items. Instead of paying for the groceries, one of the men produced a gun and ordered the store manager, William Grebing, to open the cash register. They took all of the money and tied Grebing in the storeroom, and fled the scene; but Grebing managed to touch off a silent alarm and police officers were dispatched to the store. Officer Howard Hadley of the Tulsa Police Department testified that he was on his way to the store when he observed a car coming from that direction. The vehicle appeared to have one person in it, who was slumped down in the driver's seat and who turned his head away from the officer as he drove by. Since the car was the only one in the area, it was stopped and a search produced a sack of groceries, a smaller sack containing money, and .22 caliber handgun. The driver of the vehicle was identified as co-defendant Williams. After the vehicle was stopped a passenger was observed in the front seat, who had been previously out of sight. The passenger was identified as the defendant.

The defendant, John Edward Beeks, testifying in his own defense, stating that he and the co-defendant were riding around late at night after working on an automobile. They picked up a hitchhiker carrying a grocery sack and proceeded to take the hitchhiker to a residential area in east Tulsa. The hitchhiker got out of the car but was to return in a few minutes. After waiting several minutes and in the belief that the hitchhiker would not return the defendant and co-defendant drove off. The defendant further testified that they soon noticed the hitchhiker had left a grocery sack in the car and upon examination of the same found the .22 caliber pistol, mentioned above, in with some groceries. At this time the police officers arrived and made the arrest.

The defendant first assigns as error the court's refusal to grant his pre-trial motion for severance. The defendant, relying upon Fugett v. State, Okl.Cr., 461 P.2d 1002 (1969), contends that due to the antagonistic nature of his defense with respect to that of the co-defendant, Robert Lee Williams, his trial should have been severed from that of said co-defendant.

However, in Fugett v. State, supra, one public defender attempted to represent three co-defendants in a case wherein one co-defendant had confessed and implicated the other two defendants as the perpetrators while the confessor attempted to convince the jury that he was, in fact, an innocent bystander. In the instant case, a review of the record indicates no such conflict. The record reflects that this defendant took the stand and gave testimony in which he asserted an alibi for both himself and the co-defendant. The choice of the co-defendant to remain silent was in no way inconsistent with the above stated defense. Furthermore, in view of the fact that the defendants were represented by different attorneys, the possibility of conflict of interest was reduced.

We have consistently ruled that the decision to grant or deny a motion for severance is left to the sound discretion of the trial court and the Court of Criminal Appeals will not disturb such a ruling absent a showing of some prejudicial effect to defendant. Haynes v. State, Okl.Cr., 532 P.2d 1390 (1975). Therefore the first assignment of error is without merit.

The defendant's second assignment of error is the trial court erred in admitting evidence of the gun used by the defendant during the robbery and the tape and cord used to bind Mr. Grebing. The defendant contends that such evidence was without probative value and was introduced only to arouse the passion and prejudice of the jury.

We would first point out that this defendant's attorney made no objection when the trial court admitted the evidence in question. In fact, at page 57 of the trial record the defendant expressly declined to object:

'THE COURT: Any objection by defendant Beeks?

'MR. WOOD: No, Your Honor.'

We have consistently held that if no specific objection is made to the admission of evidence by the trial court, counsel will not be heard to raise such objection for the first time on appeal. Thompson v. State, Okl.Cr., 453 P.2d 314 (1969). Counsel has failed to perceive this assignment of error for review on appeal. Assuming that the alleged error had been properly preserved, we are of the opinion that it is without merit.

The tape and cord used to bind Mr. Grebing had probative value as evidence of the means of...