Bennett v. State, F--75--356

• Decision Date: 18 February 1976
• Docket Number: No. F--75--356,F--75--356
• Citation: 546 P.2d 659
• Parties: Terry Eugene BENNETT, and James Lee Livingston, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 659

546 P.2d 659

Terry Eugene BENNETT, and James Lee Livingston, Appellants, v. The STATE of Oklahoma, Appellee.

No. F--75--356.

Court of Criminal Appeals of Oklahoma.

Feb. 18, 1976.

Don Anderson, Public Defender, for appellants.

Terry Eugene Bennett, pro se.

James Lee Livingston, pro se.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Joe Mark Elkouri, Legal Intern, for appellee.

OPINION

BLISS, Judge:

Appellants, Terry Eugene Bennett and James Lee Livingston, hereinafter referred to as defendants, were charged, tried before a jury and convicted in the District Court, Oklahoma County, Case No. CRF--74--3025, for the offense of Robbery With Firearms, in violation of 21 O.S., § 801. They were sentenced to a term of Two Hundred and Fifty (250) years each in the State penitentiary, and from said judgments and sentences a timely appeal has been perfected to this Court.

The first witness for the State was Juanita Dryden who testified that on September 4, 1974, she worked at Dryden's Grocery and Market at 1917 S. May in Oklahoma City. A few minutes before 6:00 that evening she was working in the store office when two Negro males, whom she identified as the defendants, entered. She testified that Livingston carried a sawed-off shotgun and threatened to 'blast her head off' if she moved. She further testified that Bennett pointed a pistol at her and demanded her money. She gave him about $250.00 from her cash drawer. At this point, she called out to her husband over the intercom and Bennett fired the pistol into the store office. She testified that as her husband and son came into the store from the rear, Bennett fired three more shots at them.

The next witness for the State was Michael Wayne Williams who testified that he was a former Oklahoma City Policeman and that he now worked for his mother-in-law and father-in-law, the Drydens. He said that at about 5:45 p.m. defendant Bennett entered the store, purchased a small item with food stamps, and left. He testified that shortly thereafter, both defendants entered the store, this time with defendant Bennett carrying a pistol and defendant Livingston carrying a sawed-off shotgun. There were a number of customers in the store. Williams stated that Livingston went to the cashier's cage and Bennett confronted Williams at the cash register. The men then changed positions and Bennett went to the store office. The witness stated he saw his mother-in-law hand something to Bennett who then fired into the cashier's cage. Bennett then returned to his original position in front of Williams and fired his pistol so closely to Williams that he felt the powder burn his face. As the witness' father-in-law and brother-in-law emerged from the rear of the store, Bennett fired two more shots at them.

The witness testified that as the men left the store he took a .30 caliber military carbine belonging to him and went outside where he saw defendant Bennett getting into the passenger side of a white Cadillac. He stated that Bennett fired once at him and that he then began shooting at the Cadillac. He suspected that he had hit the driver in the hand and as the car pulled out of the lot he shot about 15 more times, breaking out the rear glass. The car turned north on May Avenue and the witness then called the police. Williams discovered a sawed-off shotgun in the parking lot after the Cadillac left, but did not move it.

The State's next witness was Terry Lynn Dryden who testified he was working in his parents' store on September 4, 1974, at about 6:00 p.m. He stated he entered the front of the store where a man whom he identified as defendant Livingston held a shotgun on him and threatened to 'blow his head off.' He stated that he ducked behind a counter and heard shots fired but never got a good look at the other man in the store.

Officer Larry Wickline of the Oklahoma City Police Department testified that he responded to a call from the dispatcher at about 6:00 p.m. on September 4, 1974, and went to Dryden's Market. There he found a shotgun in the parking lot and empty .30 caliber carbine shells nearby. He also found two spent .22 caliber cartridges inside the store. He further testified that he observed powder burns on the face of Michael Williams.

George Johnson testified he was an officer with the Oklahoma City Police Department on September 4, 1974, when he heard a police radiocast concerning the robbery of Dryden's Market. He proceeded to May Avenue and I--40 where he observed a white Cadillac with bullet holes in the windshield turn onto I--40. He testified that he gave pursuit, stopped the car and arrested the occupants who he identified as defendants. He testified that a search of the car disclosed two double ought buck and 12 gauge shotgun shells on the person of defendant Livingston and that Livingston had a fresh wound in his hand. A search of defendant Bennett produced $243.00 in cash.

Gaylord Fisher testified he was employed by the Oklahoma City Police Department in its Crime Lab on September 4, 1974. He testified to taking numerous pictures of the Cadillac, the grocery store and the weapons found in various locations.

Lastly, Ray Lamberts testified he was employed by the Oklahoma Crime Bureau and that he was so employed in September of 1974. He stated that he had test-fired the shotgun and pistol and compared the firing pin markings with those of the spent cartridges found around the grocery store. In his opinion the spent cartridges were fired from the weapons which had been received into evidence.

No evidence was offered by either defendant.

The memorandum brief of the public defender appointed to represent defendants at trial in this case has been supplemented by four pro se documents. Of these, appellee has responded to three; the fourth document filed pro se by defendants is a reply to the appellee's response.

Defendant Livingston raised several points, some of which are moot. He first objected to the filing of the appeal without the transcript, which had not yet been completed by the court reporter. The transcript was subsequently filed and defendants had use of a copy for preparation of their appeal, therefore, this assignment of error is moot.

Defendant Livingston later objected to sharing a copy of the transcript with defendant Bennett, however, inasmuch as they have combined their appeal, were in the same prison, and have quoted extensively from the record in their documents we find no prejudice has resulted from the sharing of the record.

Additionally, defendant Livingston has alleged that he has been denied effective assistance of counsel on appeal. At the trial of this case both defendants were represented by an assistant public defender in Oklahoma County. Following their convictions he perfected an appeal to this Court; however, he petitioned the Court for leave to withdraw on the grounds that the appeal was frivolous. A memorandum brief raising two possible arguments accompanied the motion.

Defendant Livingston contends that under the holding of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), this procedure followed by counsel effectively denies him of counsel. We need only note that defendants' counsel has filed the memorandum brief required by Anders, raising two points and citing authority, and that in addition defendants have been allowed to file a number of pro se supplemental instruments. Accordingly, we find this contention to be without merit.

Defendants' counsel in his brief alleges insufficiency of evidence to support a verdict of guilty. The evidence against the defendants in this case is overwhelming. Even if it were not so great, this Court has often...