Brumbelow v. State, s. A--15231

• Decision Date: 09 September 1971
• Docket Number: Nos. A--15231,A--15236,s. A--15231
• Citation: 488 P.2d 1298
• Parties: David B. BRUMBELOW et al., Plaintiffs in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1298

488 P.2d 1298

David B. BRUMBELOW et al., Plaintiffs in Error, v.The STATE of Oklahoma, Defendant in Error.

Nos. A--15231, A--15236.

Court of Criminal Appeals of Oklahoma.

Sept. 9, 1971.

Carroll Samara, Don Anderson, Public Defender, Oklahoma City, for plaintiffs in error.

G. T. Blankenship, Atty. Gen., Duane Lobaugh, Asst. Atty. Gen., for defendant in error.

CONSOLIDATED OPINION

BRETT, Judge.

This decision consolidates the appeals of Lindell Wayne Hill and Wesley Shipp, No. A--15,236, and the appeal of David B. Brumbelow, No. A--15,231.

Plaintiffs in Error, Lindell Wayne Hill, age 19, David B. Brumbelow, age 20, and Wesley Shipp, age 21, hereinafter referred to as defendants, were tried jointly in the District Court of Oklahoma County on three Informations, at one trial with the same jury.InformationNo. 34486, charged the defendants conjointly with the crime of Kidnapping;InformationsNos. 34487and34488 charged the defendants jointly with separate acts of Rape in the First Degree.Motions for Severance were filed but were denied by the trial court.The trial commenced on September 24, 1968, and two days later, September 26th the jury returned verdicts against defendants for both kidnapping and rape.

Wesley Shipp was relieved of the kidnapping charge, by the court, but Brumbelow and Hill were found guilty of the crime of Kidnapping, and all three defendants were found guilty for the crime of First Degree Rape.Brumbelow and Hill were each sentenced to serve ten (10) years imprisonment on the kidnapping conviction; and the three defendants were each sentenced to serve twenty-five (25) years on the conviction for First Degree Rape.From these convictions Shipp and Hill perfected their appeal No. A--15,236, by privately retained counsel; and Brumbelow's appeal No. A--15,231, was perfected by the Oklahoma County Public Defender.Insofar as the three defendants stood trial at one trial; and since only one record was transmitted for the purpose of both appeals, this opinion consolidates both appeals for decision.

Defendants Shipp and Hill were represented at their trial by an attorney of their own choosing, Mr. Carroll Samara; whereas, defendant Brumbelow was represented by the Oklahoma County Public Defender.

I.

The facts as revealed to the jury, briefly stated are: On the evening of April 12 1968, Judy Ann Anderson, Barbara Herndon, Billy Joe Baker, John Frenier, Larry Stidman, and Deena Tucker, were riding in an automobile which had traveled to the vicinity of McCloud, Oklahoma, and was en route back to Midwest City, Oklahoma, when their automobile stalled about 10:00 p.m.All six of the young people were teen-agers who attended Carl Albert High School in Midwest City, Oklahoma.Larry Stidman and Billy Joe Baker, started out on foot to Midwest City, to obtain another car from Larry's father.

The witnesses testified that after the two boys left, a station-wagon containing three men stopped to inquire if they needed help.The four young people informed them that two of the boys had proceeded on to Midwest City on foot to obtain help.They asked the men to pick up the boys and take them to the telephone.The station-wagon departed and overtook Billy Joe Baker and Larry Stidman, picked them up and by a circuitous route, reached Midwest City within a few minutes.The two boys were let out of the station-wagon in front of the J & A Bar, next door to where Billy Joe Baker lived.

The four teen-agers testified that about 15 or 20 minutes after they left the three men in the station-wagon returned and stated they had taken the boys to a telephone.One girl expressed doubt about their having done so; and an argument ensued.The record reveals that all three men had been drinking, and that defendant Shipp seemed to be more intoxicated than the other two.The defendants had parked their station-wagon on the same side of the road, on which the teen-ager's car was stalled, and came to the passenger's side of the vehicle where the argument with the teen-agers ensued.

During the course of the argument, defendant Hill asked Judy Ann Anderson, who was 15 years old, to roll down the window; but when she declined to do so, Hill threatened to break the window out if she didn't.She testified that she opened the vent window on the door to her side of the car; and after she did so, defendant Brumbelow reached in and opened the car door.

The witnesses testified that defendant Brumbelow pulled Judy Ann Anderson out of the car, while John Frenier, her date, tried to keep her in the car by pulling on her left arm.Brumbelow took her to the station-wagon and put her in the back seat of the car, and held his hand over her mouth, according to Judy's testimony.She related further, that defendant Hill got into the car, in the driver's seat.Shipp was still standing beside the teen-ager's car, so Hill and Brumbelow insisted that Shipp get into the car with them, which he did.The evidence related that the three men drove east, on Southeast 29th Street, turned south on Henny Road, and shortly turned to the right again, and stopped the car.At that time, the first rape allegedly occurred.

Judy Ann Anderson testified that the first time the defendant's car stopped, Hill got in the back seat and started taking her clothes off, while Brumbelow held her.She testified that defendant Hill had intercourse with her; that she struggled a little and was in fear; she related how Shipp then got in the back seat and tried to 'rape' her, but couldn't because he was drunk; so they took her out of the car, and threw her on the ground.She said Hill and Brumbelow held her while Shipp had intercourse with her, after which Hill had intercourse with her the second time.She related that Shipp started to have relations with her again, but Hill told him to leave her alone.There was a great deal of cross-examination of this witness concerning, whether or not, and when all of her clothes were removed, but it did not seem to influence the jury.

Judy related that after the acts of sexual intercourse were completed, the three men gave her clothes back to her and returned her to the teen-ager's stalled car, still parked on the side of the road, where they left her alone.She denied giving her consent to engage in sexual relations with any of the defendants.

While Judy Ann Anderson was absent from the teen-ager's vehicle, the other three young people managed to catch a ride, into Midwest City, and were taken to the police-station.In the meantime, the two boys, who started out on foot, returned to the car with Larry's father, but before Judy had been taken back; finding no one at the car, they immediately went to the Midwest City Police Station, where they found the other teen-agers.

Officer Raymond Clark of the Oklahoma City Police Department testified that he had been dispatched to the area, after a general police alert was sounded; and at about 1:25 A.M., on the morning of April 13th, he arrived at the stalled vehicle, where he found Judy Ann Anderson.In describing her condition he said, 'She was very upset, she was extremely nervous, and she was trembling and she was hardly able to talk with me when I first arrived and I observed her.'The officer took her to the Midwest City Police Station, after which she was taken to the hospital for a medical examination.

Officer Anthony Pratt of the Midwest City Police Department testified that he arrested the three defendants at the intersection of Southeast 15th Street and Henny Road about 1:00 o'clock A.M., on the morning of April 13th.The doctor who examined Judy Ann Anderson testified that he found her 'pretty disleveled,' with a bruise on the upper part of the left arm, and one on the crest of the ilium on her left hip; he related that there was no laceration of her vagina, and the blood which was found in her vagina was menstrual blood.He related further however, that the microscopic examination revealed Spermatozoa to be present in her vagina at the time of the examination.This finding verified that the young girl had experienced sexual relations.

II.

Defendant Brumbelow did not testify.Defendant Shipp testified that he was with Hill and Brumbelow that evening but was drunk and did not really recall anything after the three were at a laundromat about 10:00 P.M. Defendant Hill testified that he was Shipp's brother-in-law and that on April 12, 1968, the two went to the Midway Tavern in the evening, where they met up with Brumbelow; that the three drank some beer, got some rum and visited several different taverns and drive-ins, and finally stopped at a laundromat where Brumbelow used a telephone.They then returned to the Midway Tavern and stayed there about 30 minues; then they drove west on Southeast 29th where he came upon two boys walking west; they picked them up, and at their request let them out at the J & A Bar.Hill denied ever stopping at the stalled car; and he denied any such incidents as testified to by Judy Ann Anderson, Deena Tucker, and Barbara Herndon.He said Brumbelow was with him and his brother-in-law throughout the evening.

III.

All three defendants filed separate Motions for Severance, and also filed special motions objecting to the trial being conducted on three separate Informations, alleging three separate offenses, to-wit: Kidnapping, and two charges of First Degree Rape.Defendants' motions assert this procedure violates their constitutional and statutory rights; and they assert gross abuse of discretion by the District Attorney, in filing separate Informations; and that the joinder of parties and actions caused prejudice to each of the defendants.

On the morning of September 24th, before the trial was commenced, the court conducted a hearing on the special Motions for Severance and objection to the Informations.After due and proper consideration, the court denied the motions.Mr. Samara, counsel for Hill and Shipp, then objected to the jury panel...