Breedlove v. State

• Decision Date: 25 July 1974
• Docket Number: No. F--73--135,F--73--135
• Citation: 525 P.2d 1254
• Parties: Lawrence Lee BREEDLOVE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1254

525 P.2d 1254

Lawrence Lee BREEDLOVE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--73--135.

Court of Criminal Appeals of Oklahoma.

July 25, 1974.

Stephen Jones, Mary E. Bane, Jones, Williams, Bane, Ray & Klingenberg, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Stan Chatman, Legal Intern, for appellee.

OPINION

BLISS, Presiding Judge:

Appellant, Lawrence Lee Breedlove, hereinafter referred to as defendant, was charged in the District Court, Oklahoma County, Case No. CRF--72--1881, with the offense of Murder. Ray Charles Carolina, Karrole Donnie Wayne Draper and Wayne T. Glover were charged conjointly with him. On December 11, 1972, defendants, Breedlove, Carolina and Draper were tried before a jury and found guilty of the murder of Howard Siler, with the jury imposing the death penalty on all three defendants. On March 14, 1973, this Court commuted all three sentences to life imprisonment in line with the recent decisions of the United States Supreme Court. From said judgment and sentence defendant Breedlove has perfected a timely appeal to this Court.

The essential facts as set out in the defendant's brief and approved as reasonably accurate by the State are as follows: James E. Turk testified that he owned a grocery store located in 3200 North Western in Oklahoma City, Oklahoma. At approximately 6:00 p.m. on August 4, 1972, he left the store, being relieved by Howard Siler who was accompanied by his wife and six year old son. Shortly before 11:00 p.m., Mr. Turk received a phone call telling him that his store had been robbed. He returned to the store and discovered One Hundred Eighty-two Dollars ($182.00) in cash was missing from his cash register. He then identified State's exhibit No. 1 as a bank bag like the one he kept at his store, but which was missing after the robbery.

Bruce Alan Cain, a 13 year old boy, testified he and his father were driving past Turk's grocery on the evening of August 4 and he saw a white man and two black men inside the store. The white man was standing with his arms out to his side. Bruce told his father he thought the store was being robbed and his father drove around the block. This time Bruce saw two black men push the white man through a rear door. Bruce and his father drove home and the police were called. Bruce could not identify any of the defendants as being the black men in the store.

Officer Fred Weed of the Oklahoma City Police Department testified that on August 4, 1972, at approximately 11:10 p.m. he was dispatched to Turk's store. Upon entering the store he observed three persons lying in a rear storeroom. He identified the three persons as Howard Siler, Judy Siler and Chris Siler. Each had a gunshot wound in the rear of the head. Judy Siler was still alive while Chris and Howard were both dead. He found three spent .22 caliber cartridge casings near the three bodies. He further observed that there was no money in the cash register or Howard Siler's wallet.

Officer Tom Bevel of the Technical Investigation Department of the Oklahoma City Police Department testified that on the evening of August 4, 1972, he arrived at Turk's grocery and took several pictures of the scene. He also searched for fingerprints but was unable to find any he could relate to any of the defendants.

Lieutenant Don Rogers testified he was in charge of the Crime Lab for the Oklahoma City Police Department. On August 4 at approximately 11:35 p.m., he arrived at Turk's Grocery and received three spent .22 caliber cartridge cases. He subsequently received three bullets which were removed from the victims at the morgue. He delivered all items to Ray Lambert of the Oklahoma Crime Bureau.

Officer Jimmy L. Woodie testified that on August 7 he arrested defendant Carolina on suspicion of murder. Carolina was advised of his constitutional rights and he stated he understood same. Carolina then told Officer Woodie that he was present at the store and knew the person who had done the shooting.

Officer Bill F. Snipes testified that on August 7 he interrogated Carolina, after giving him his Miranda warnings. Carolina related that he and three others robbed Turk's store. Carolina and the two others who entered the store with him were carrying guns. A man, woman and a small boy were shot during the robbery and Carolina advised the officer who fired the shots. After the robbery the four went to a woman's house and divided the money. Each of the men then gave the woman five dollars.

Officer Adam Knight testified that on August 7 he interrogated defendant Draper, after first advising him of his constitutional rights. Draper related four different versions of his whereabouts on the night of August 4, 1972. Draper, in his fourth version, related the following:

'A. He said that the suspects had come over to his girl friend's house and picked him up along with two other suspects and that this one suspect had plans already including a robbery up in the northwest part of town. He didn't know exactly where it was at. He said they drove up there and being in the area of 32nd and North Shartel the three of them, him and two other suspects walked into the store with him being the first one into the store. He said he walked up to the counter and asked the attendant for a pack of Winston cigarettes. He said that other suspect then walked around him towards the back of the store and pulled out a pistol and made a statement--I believe it was, 'This is a hold-up.' And, he was then told by the other suspect to take this woman and child into the back room, while the other suspect with the pistol, then walked behind the counter and started taking the money out of the register and placing it in a paper sack. He said the suspect told him to watch the people in the back room. He said while he was watching the people in the back room he was also watching the suspect behind the counter, with the pistol, getting the money out of the cash register. He said that that suspect then asked Mr. Siler, being behind the counter with him, where the rest of the money was. At which time he observed the suspect put what appeared to be a blue or a green bank sack or bank bag into a paper sack. He then said that he then got the--he then asked the lady that was in the back room where her purse was at. And, he said that the lady replied it was on the counter underneath, underneath the counter. He said, 'Well, forget about it.'

He said then, a suspect walked the --Mr. Siler back to the back room and upon Mr. Siler passing by him, he observed the suspect strike him on the head with the pistol. He said that he then observed the suspect make the other--the three victims lay on the floor. And, observed the suspect fire once over the woman's head, missing her, at which time he stated he then left, run out of the store and heard three shots as he was running out of the store.'

Officer Knight further testified that on the 7th of August he interrogated defendant Breedlove, after advising him of his Miranda warnings. Breedlove told Officer Knight that he and three other persons robbed Turk's grocery store. During the course of the robbery the Siler family was forced to go into a rear room of the store. Breedlove heard four shots as he was leaving the store. The four then drove to a girl's house where the money was divided. Thereafter, Breedlove took Officer Knight to his brother's residence where a .22 caliber pistol was recovered. Officer Knight then identified State's exhibit No. 17 as the .22 caliber pistol that was recovered.

Detective George A. 'Buddy' Burns next testified that he was taken to 1624 Northwest 35th Street, Oklahoma City, Oklahoma, by defendant Carolina, where State's exhibit No. 1, a bank bag, was recovered. Officer Burns then identified State's exhibit No. 1 as the bank bag he recovered. Officer Burns further testified that defendant Draper took him to his grandmother's residence where a .38 caliber pistol was recovered. Burns then identified State's exhibit No. 18 as the .38 caliber pistol he recovered at Draper's grandmother's residence.

Oscar Breedlove, defendant Breedlove's brother, testified his brother, defendant Breedlove, gave him a .22 caliber pistol on August 4, or August 5, 1972.

Calvin Murphy testified he was with defendant Breedlove and defendant Draper on the afternoon of August 4, 1972. At this time defendant Breedlove fired State's exhibit No. 18, and defendant Draper fired State's exhibit No. 19. Defendant Draper said he was going to pull a robbery.

The following day Murphy saw defendant Draper and Draper told him '. . . he pulled a robbery. He got clean away and was going to pull another one.'

Ray Lambert, Firearm's Examiner for the State Bureau of Investigation, testified he examined the State's exhibit No. 17, a .22 caliber pistol, State's exhibit Nos. 14, 15, and 16, three bullets removed from the Siler family's bodies, and three .22 caliber cartridge cases. In his opinion the cartridge cases were fired from State's exhibit No. 17.

Dr. Charles Marshall testified that he was a licensed medical doctor in the state of Oklahoma and a consultant pathologist with the Medical Examiner's Office for the State of Oklahoma and that he performed a postmortem examination on the body of William Howard Siler on August 5, 1972, and removed, a bullet from the head of the body. In Dr. Marshall's opinion the cause of death was the result of a gunshot wound to the head with death being close to instantaneous.

Edward Charles Ellis Hishaw testified that in the early morning hours of August 5, defendant Carolina came to his house, showed him some money and said he had robbed a store and some people had been shot. Hishaw further testified that defendant Draper arrived at his house shortly after defendant Carolina and was in possession of some money and a pistol. Draper subsequently told Hishaw that he took part in the robbery.

Berneice Marie Baley...