Breshers v. State, F-77-96

Decision Date02 December 1977
Docket NumberNo. F-77-96,F-77-96
Citation572 P.2d 561
PartiesCarey Lonnell BRESHERS, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BRETT, Judge:

Appellant, Carey Lonnell Breshers, Jr., hereinafter referred to as defendant, was charged, tried to a jury, and convicted in the District Court, Oklahoma County, Case No. CRF-76-1729, for the offense of Murder in the Second Degree, in violation of 21 O.S.Supp.1973, § 701.2. His sentence was fixed at an indeterminate sentence of from ten (10) years to life imprisonment pursuant to 21 O.S.Supp.1973, § 701.4. From said judgment and sentence the defendant has perfected his timely appeal to this Court.

The evidence adduced at trial revealed that on February 16, 1976, a young black male, whom Mrs. Reba King, wife of the deceased, identified in court as the defendant, came to the door of the King's rural home, two and a half miles west of Jones, Oklahoma, in Oklahoma County, at approximately 12:15 p. m. Defendant asked Mrs. King if her husband were home. Defendant told the Kings that he was looking for his runaway Holstein calf, and asked if they had seen one. The defendant then asked for a drink of water, and after receiving it, used the telephone and then walked out of the house. He proceeded north behind the barn, which was approximately 40 feet from the house. He thereafter returned to the house and told the Kings he had found his calf but needed rope to lead it back home. The deceased, Mr. Clyde King, told the defendant that he did not have any rope but that he could probably find something for him to use. Mr. King and the defendant then went to a shed where King gave the defendant a belt, identified by Mrs. King as State's Exhibit No. 1, with which to lead his calf. King stood by the shed as the defendant walked north to a fence row and then turned east. Defendant carried a rifle during this entire time, and Mrs. King identified State's Exhibit No. 3, a 30-30 lever action Winchester, as appearing to be similar to the gun which defendant had in his possession on that day.

From her front window, Mrs. King observed the defendant walk along the fence row for approximately 40 yards. When the defendant reached a point approximately 80 yards from where Mr. King was standing by the shed, Mrs. King observed the defendant whirl around to his left, bend over slightly and shoot in the direction of the deceased. Mrs. King testified that the defendant turned and shot simultaneously. Because the barn blocked her view of her husband, Mrs. King ran to a north window and saw her husband lying on the ground where he had been standing. She then ran outside to her husband, but upon seeing the defendant running toward the house, without the rifle, she went back into the house locking the door behind her, and called for help. The defendant got to the front porch door and yelled to Mrs. King that he needed to use the phone because he had shot his calf. Mrs. King replied that she had seen what he had done, that she had a gun and that she was calling the police. Mrs. King then observed the defendant run north from the house, and did not see him again that day. Following this testimony, Mrs. King made a blackboard diagram of the farm and explained the topography of the land.

On cross-examination Mrs. King stated that the defendant was polite, used no profanity, and that his demeanor and conduct were normal. She related that she heard one gunshot but did not see her husband fall. She also related that there was nothing taken from her husband's body, and no theft of personal property from the premises.

The parties then stipulated that Officer Ercanbrack of the Oklahoma City Police Department arrived at the scene and secured the area until various other units of the police department arrived.

Officer Bruce Knox, a photographic technician for the Oklahoma City Police Department, stated that he took photographs of the scene on February 16, and identified State's Exhibits Nos. 5 through 13 as those photographs. State's Exhibits Nos. 5 through 8, 12 and 13 were thereupon admitted into evidence.

Don Cravens, technical investigator for the Oklahoma City Police Department, testified that he attempted to take fingerprints at the scene of the crime but was unable to identify any of them because they were "smudged." He testified that the "entire top of his (the victim's) head had been blown off." He related that he also observed "a large portion of what (he) recognized as the brain tissue," about two feet from the body and several fragments of "skull bone and splatters of what appeared to be brain tissue," within a 30 foot radius of the body.

Jim Woodie, the arresting officer, testified that during the investigation of this incident he obtained a photograph of the defendant from the defendant's father. On February 17, the day after the homicide, Officer Woodie was summoned to a rural residence in Jones, Oklahoma, where he found the defendant asleep in a shed behind the house. The defendant was wearing clothes that fit the description given by Mrs. King on the previous day. After the defendant was arrested and transported to the Oklahoma City Police Headquarters, defendant's father, Carey Breshers, Sr., was summoned to police headquarters where defendant was to be questioned.

Mike Heath was the Oklahoma City Police Officer who questioned the defendant. He testified that after advising the defendant and his father of all their constitutional rights, he took a verbal statement from the defendant, which was later reduced to writing. This written statement, identified as State's Exhibit No. 1-A, was thereupon identified by Officer Heath as being the one which he took from the defendant, bearing the signatures of both the defendant and defendant's father, and was admitted into evidence. On that same day the witness took the defendant back to the scene of the homicide, and the defendant showed the officer where he had tied the belt, State's Exhibit No. 1, on a fence post and the farm pond where the defendant had thrown the 30-30 rifle. The belt was found at that time, and the rifle was retrieved from the pond one and a half miles north of the King residence the following day. The officer identified both items in court.

Dr. A. J. Chapman, chief medical examiner for the State of Oklahoma, testified that he performed an autopsy on the body of Clyde King on February 17. On examining the body, the witness observed that:

"(T)here was complete evulsion of the brain. That is the brain was completely torn out of the head across what we call the mid brain or just above the vital centers of the brain with the cerebellum or the center of the brain that is concerned in coordination left in the skull.

"So the cerebrum hemispheres were completely lacerated out of the skull and also lacerated by bullet fragments and/or bone fragments. The skull itself was multiply fractured. It involved all bones and extended into all areas and the scalp was torn massively.

"The greatest distance across the wound itself in the scalp itself being about nine and a half inches."

State's Exhibit No. 13, a photograph which was identified by the witness, graphically depicted these injuries. The witness determined the cause of death to be a gunshot wound to the head which entered approximately two and a half inches above the eyebrow, traveling slightly upward and to the right. Dr. Chapman testified that the person firing the projectile would have to have been very nearly in line with the victim's line of vision.

Following this evidence, the State rested its case and the defendant's demurrer to the evidence, more properly termed a motion for directed verdict of acquittal, was overruled. Other motions relating to suppression of certain evidence, the in court identification of defendant, and dismissal for lack of jurisdiction were also overruled.

In presenting the case for the defendant, Officer Jim Woodie, Jones Police Chief Raymond Kerr and Carey Breshers, Sr., defendant's father, were called to testify in an effort to establish the involuntariness of the defendant's statement, State's Exhibit No. 1-A. Both police officers stated that when the defendant was questioned at police headquarters he was awake, alert and knew what was going on around him.

The defendant's father testified that at no time was he or the defendant advised of their constitutional rights. Further, he related that even though both he and the defendant signed the waiver of rights reflected on the written statement taken at police headquarters, neither he nor the defendant read it or understood it.

Fay Lowe, the defendant's girl friend, was next called to testify. It was established that she was the first person to come into contact with the defendant following the homicide. She related that she saw the defendant at approximately 9:00 p. m. on February 16, 1976. When she saw him she asked if he "did it," and he answered "no." She asked the defendant why he did not surrender to the police, and he replied that they would not believe him. Ms. Lowe stated that she had the defendant call the police to ask what would happen if he turned himself over to the police. She testified that she did not hear the police dispatcher's conversation because the defendant hung up...

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    ...jury. State v. Sette, supra; Young v. State, 234 So.2d 341 (Fla.1970); State v. Clark, 218 Kan. 18, 542 P.2d 291 (1975); Breshers v. State, 572 P.2d 561 (Okl.Cr.1977); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 Photographs that show much gore and blood, or emphasize contorted facial......
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