Blackwood v. State, F--74--157

• Decision Date: 14 August 1974
• Docket Number: No. F--74--157,F--74--157
• Citation: 525 P.2d 1369
• Parties: Kenneth BLACKWOOD, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1369

525 P.2d 1369

Kenneth BLACKWOOD, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--74--157.

Court of Criminal Appeals of Oklahoma.

Aug. 14, 1974.

Henry, West & Sill, Shawnee, James D. Sill and Mike Adcock, Legal Interns, for appellant.

Larry Derryberry, Atty. Gen., Bill James, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellant, Kenneth Blackwood, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Pottawatomie County, Case No. CRF--73--25, for the offense of Robbery with Firearms After Prior Conviction of a Felony. His punishment was set at twenty (20) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

At the trial Brenda Neal testified that she was working at the Time Store, a convenience grocery in Shawnee, when it was robbed at 3:00 a.m., January 1, 1973. Recounting the incident, Ms. Neal said a young man walked into the store, looked around and left, and returned in a few minutes with a man whom she identified as the defendant and a third man. She said the defendant and the third man walked to the beer cooler, got three six-packs and brought them to the cash register. She testified that when she asked them if that was all they wanted, the defendant, holding a gun on the counter, said, 'No, we want all your money, too.' Ms. Neal said she gave him the money and that while the defendant led her to the rear of the store admonishing her not to seek help immediately, one of the other men ripped the phone from the wall. The cashier identified a gun tagged as State's Exhibit No. 2 as resembling the gun the defendant had used in the robbery and testified that following the hold-up her records showed that Two Hundred and Seventy Nine ($279.00) dollars was missing.

Lloyd Gribble, a detective with the Shawnee Police Department, identified State's Exhibit No. 2 as the gun he recovered in a warranted search of co-defendant Steve Gibson's grandmother's residence at 222 South Eden in Shawnee, January 18, 1973. Officer Gribble further testified that while in custody on January 17, after being given his Miranda rights, the defendant gave a tape-recorded statement setting forth his participation in, and knowledge of, the robbery. Officer Gribble stated that the defendant offered to make a statement if the District Attorney would agree on a five year sentence. He further stated that he called the District Attorney, in the presence of the defendant and his wife, and that the District Attorney said the agreement could not be made. He said that he told the defendant a five year sentence was not possible and the defendant said he would still make a statement.

In the taped confession introduced as State's Exhibit No. 1, the defendant told of a New Year's party he and the co-defendant had attended at the Holiday Inn in Shawnee. He said that some time after midnight when the group ran out of money and beer and their credit had been cut off at the motel club, he and two other men got a gun belonging to Steve Gibson's mother, which the defendant had hidden earlier in the evening in the motel bathroom, and they all left to go get some money. In the taped statement the defendant explained that although the gun was unloaded, he used it when they robbed the Time Store. After the robbery the defendant explained that they split the money, bought more beer and returned to the motel room where they had left a blonde woman named Betty. The defendant said that the day after the incident Steve Gibson was going to return the gun to his mother's house from which he had taken it without her knowledge.

Betty Wintz Taylor testified that she was at the party at the Holiday Inn on January 1, 1973, drinking with the defendant and some other men for several hours. She testified that at approximately 12:30 a.m., she saw the defendant and two other men doing something with the vent in the bathroom of the motel room but they shut the door and she could not see exactly what they were doing. Some moments later the three men left the motel saying, 'We need some money.' Betty Taylor said that to her knowledge no one at the party had any money at 12:30 a.m. because they had wanted to buy some beer and could not. They returned at approximately 4:00 a.m. with beer and money.

The defendant did not take the stand but testifying in his behalf was his ex-wife, Karen Fuller. Ms. Fuller said that she met the defendant in December, 1972, and they had discussed marrying. She went to the New Year's Eve party at the Holiday Inn and upon seeing Ms. Taylor there she became angry. She said she left the party at approximately 12:30 a.m. after an argument with the defendant. Ms. Fuller said she did not see the defendant again until January 3 and that on that date they went to Tulsa where they were married the following day, January 4. She explained that they were living in Tulsa when her husband was arrested on January 15, in connection with the robbery. On January 17 she had gone to see her husband who was in custody in Shawnee and was with him when, according to her testimony, Officer Gribble told her husband that if he would tell the authorities what happened they would try to get him a light sentence. She further testified that she did not hear Officer Gribble give the defendant any rights in the fifteen to twenty minutes she was with him immediately preceding his tape-recorded statement.

In the first proposition of error, the defendant contends that reversible error was committed by the trial court in refusing to grant a 48 hour continuance for the purpose of allowing the defendant to obtain a list of witnesses as provided by Article II, § 20 of the Oklahoma Constitution.

We agree with the defendant's contention that he is entitled to a list of witnesses to be called by the State but, although the State admitted before trial that a new list of witnesses was not provided the defendant prior to trial, it was also pointed out that all the witnesses to be called were endorsed on the original Information previously furnished the defendant. This Court has repeatedly held that service of a separate list of witnesses is not required if it can be shown that the names of the State's witnesses were furnished. Dealing with this same issue, this Court held in Born v. State, Okl.Cr., 397 P.2d 924 (1964), quoting from Manning v. State, 7 Okl.Cr. 367, 368, 123 P. 1029:

"The law does not prescribe the manner in which the names of witnesses in a capital case shall be furnished the defendant. If it be made to appear to the satisfaction of the trial court that such names were furnished the appellant at least two days before the case was called for trial, the manner in which the names were so furnished becomes immaterial." 397 P.2d at page 928.

Also, in his first proposition, the defendant contends that because the last name and address of one of the witnesses who testified had changed since the endorsement of the Information, the Information was insufficient to serve as a list of witnesses. The witness, Betty Taylor, was endorsed as Betty Wentz, 508 North Broadway, Shawnee, her last name being misspelled with her correct address on January 1, 1973. After April 3, 1973, the witness remarried, her name being Betty Wintz Taylor and she moved to 311 1/2 South Aydelotte, Shawnee.

Although this Court has not found a situation completely analogous to this, there is ample authority to indicate that the defendant was not prejudiced by the name and address change. Brock v. State, Okl.Cr., 349 P.2d 20 (1960) was based on a similar contention that the defendant claimed he was required to go to trial without a sufficient list of witnesses and addresses because only the town where the witnesses lived was listed on the Information. In regard to this allegation this Court held:

'No showing was made that the addresses given were incorrect or that during the three months prior to trial defense counsel had been unable on account of the addresses given, to contact the proposed witnesses. We are convinced that Henryetta is not of sufficient population but what slight inquiry would have enabled anyone desiring to contact the listed State's witnesses, to have done so, with the aid of the addresses given.' at page 25.

Certainly it can be assumed that the same reasoning would also apply in the instant case.

In Fairris v. State, Okl.Cr., 287 P.2d 708 (1955), one Bobbie Curtright was called as a witness at trial. The County Attorney stated that on the morning of trial he had discovered the witness' name was 'Bobbie' Curtright, although it had been endorsed on the Information as 'Jimmie' Curtright and leave was granted to amend the Information. After giving his testimony the witness also disclosed that although his address had been listed on the Information as 741 North Broadway in Shawnee, it was actually 641 North Broadway. In response to defendant's proposition that admission of this testimony was accordingly error, it was held:

'The purpose in furnishing the defendant with the names and addresses of the witnesses to be used by the State is to apprise him whom the...