Burks v. State

• Decision Date: 23 January 1979
• Docket Number: Nos. F-77-50,F-77-67,s. F-77-50
• Citation: 1979 OK CR 10,594 P.2d 771
• Parties: Samuel Rayfael BURKS, Appellant, and Sam J. Agee, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 771

594 P.2d 771

Samuel Rayfael BURKS, Appellant and Sam J. Agee, Appellant, v. The STATE of Oklahoma, Appellee.

Nos. F-77-50, F-77-67.

Court of Criminal Appeals of Oklahoma.

Jan. 23, 1979.

Rehearing Denied May 15, 1979.

An appeal from the District Court, Washington County; Arthur J. Boose, Judge.

Samuel Rayfael Burks and Sam J. Agee, appellants, were convicted of offense of Robbery With Firearms; were sentenced each to fifteen (15) years' imprisonment, and appeal. AFFIRMED as to defendant Burks, REVERSED and REMANDED as to defendant Agee.

Samuel Rayfael Burks, appellant, The State of Oklahoma and The Oklahoma District Attorneys Association, amicus curiae, petition this Court to grant a rehearing. Denied.

Alan R. Carlson, Garrison, Brown & Carlson, Bartlesville, for appellant Burks.

Rebecca L. Adams and Stephen B. Riley, Harris & Riley, Bartlesville, for appellant Agee.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Duane N. Rasmussen, Legal Intern., Jan Eric Cartwright, Atty. Gen., David W. Lee, Asst. Atty. Gen., for appellee.

Richard L. Dugger, Elk City, President, Oklahoma Dist. Atty.'s Assoc., C. Rabon Martin, President Oklahoma Criminal Lawyers' Assoc., Tulsa, for amicus curiae.

OPINION

CORNISH, Presiding Judge:

Samuel Rayfael Burks and Sam J. Agee have appealed their convictions in the District Court, Washington County, of Robbery With Firearms. Although they were tried together, they were represented by separate counsel and have brought separate appeals. We have consolidated their appeals for the sake of convenience and judicial economy. At the trial, the State presented extensive testimony and evidence concerning a burglary and the larceny of an automobile committed the day after the robbery. Both appellants argue that it was error to introduce the commission of another crime into the trial and that their convictions should be reversed.

The general rule is that when one is put on trial, one is to be convicted if at all by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded. Smith v. State, 5 Okl.Cr. 67, 113 P. 204 (1911) and Atnip v. State, Okl.Cr., 564 P.2d 660 (1977). On the other hand, there are five generally accepted exceptions to this rule. Evidence of other offenses may be admissible where it tends to establish motive, intent, absence of mistake or accident, identity or a common scheme or plan which embraces the commission of two or more crimes so related to each other that proof of one tends to establish the other. Miller v. State, 13 Okl.Cr. 176, 163 P. 131 (1917), and Atnip, Supra. ¹

We first note that the burglary cannot be considered to be a part of the res gestae of the robbery. The robbery was committed on June 16, 1975. In the subsequent automobile chase, the robbers' automobile was wrecked, and after a brief gun battle the robbers escaped on foot. Later that evening two men were captured, but in spite of an intensive search operation no other suspects were discovered in the area. It would thus appear that at this point the remaining robbers had made good their escape, and the crime of robbery with firearms had come to an end.

On the afternoon of June 17, a house in the vicinity was burglarized. Later that day the appellants were arrested in Kansas. The car they were seen driving and the clothes they were wearing proved to have been taken in that burglary. At the robbery trial, a large portion of the State's case consisted of evidence of the burglary.

The burglary does not tend to establish a motive for the robbery. It does not tend to establish any intent for the robbery. Nor does it tend to establish the absence of mistake or accident relative to the commission of the robbery. The State contends that the evidence shows a common scheme or plan, arguing that when the appellants committed the robbery they had a scheme or plan to escape. But this is not a fact situation to which the "scheme or plan" exception applies.

Stated fully, the exception applies to evidence which tends to establish a "common scheme or plan embracing the commission of two or more crimes So related to each other that proof of one tends to establish the other." Atnip v. State, supra. (Emphasis added) As we stated in Hawkins v. State, Okl.Cr., 419 P.2d 281 (1966), evidence of a crime other than the one charged may be admissible if it tends to show that there was a plan or system which subtended both crimes:

". . . Such as where the crime is committed to prepare the way for another and the commission of the second crime is made to depend upon the perpetration of the first. In that event the second becomes connected and a related transaction and the proof of the commission of the first becomes relevant to show the motive for the perpetration of the second. . . ." (Citations omitted) 419 P.2d at 284.

In the instant case, it would be absurd to argue that the appellants committed the robbery to facilitate the commission of the burglary. Nor can it be said that proof of the burglary tends to establish the robbery.

The State also argues that evidence of the burglary should have been admitted as tending to establish the identity of the appellants as the persons who committed the crime with which they were charged. It is true that by introducing evidence pertaining to the burglary the State was able to construct a hypothetical account of the appellants' activities from the time of the gun battle until the time they were arrested in Kansas, but this alone does not render the evidence admissible.

We have previously stated that "for evidence of other offenses to be admissible, there must be a visible connection between the crimes." Roulston v. State, Okl.Cr., 307 P.2d 861 (1957), citing Pressley v. State, 71 Okl.Cr. 436, 112 P.2d 809 (1941); Nemecek v. State, 72 Okl.Cr. 195, 114 P.2d 492, 135 A.L.R. 1149 (1941); Herren v. State, 75 Okl.Cr. 251, 130 P.2d 325 (1942); Landon v. State, 77 Okl.Cr. 190, 140 P.2d 242 (1943); Byers v. State, 78 Okl.Cr. 267, 147 P.2d 185 (1944). This is but another way of stating that in order to be admissible the evidence must have probative value. In the instant case, we hold that the evidence of the burglary did not have probative value with regard to the robbery. No one saw the appellants at or around the house which was burglarized. A telephone repair person saw a car with one black person in it, but he did not know that the house had been burglarized, or that the car had come from the house; nor was he able to identify anyone as the driver of the car . Nevertheless, knowing of the armed robbery committed in Bartlesville the previous day by four blacks, he wrote down the tag number and gave it to the police. The car was later seen in Coffeyville, Kansas, and at that time the appellants were the driver and the passenger. In the car there were a basket of clothes and two weapons taken from the burglarized house. The evidence strongly incriminates the appellants with the burglary of the house and the larceny of the automobile, but we are unable to perceive a connection between the burglary/larceny and the armed robbery the previous day. We therefore hold that it was error to admit the evidence of the burglary in the robbery trial.

With regard to the defendant Agee, the error requires reversal. The evidence connecting him to the robbery was not great, and we cannot say that a jury would have returned a guilty verdict even had the evidence not been introduced. With regard to the defendant Burks, however, we hold that the erroneous admission of the evidence of the other crimes was harmless. The State's case against him was overwhelming, and we believe that the jury would have returned a verdict of guilty without the improper evidence.

Because of the nature of the issue, it is difficult to establish guidelines for determining whether an exception should be used in a particular case and, if so, which one, but we have become increasingly concerned with the number of cases in which error is committed in introducing evidence of the commission by a defendant of crimes other than the one for which the defendant is on trial. See, for instance, Hauschildt v. State, Okl.Cr., 554 P.2d 77 (1976); Atnip v. State, supra; Oliver v. State, Okl.Cr., 568 P.2d 1327 (1977); Chandler v. State, Okl.Cr., 572 P.2d 285 (1977); Breshers v. State, Okl.Cr., 572 P.2d 561 (1977); Galindo v. State, Okl.Cr., 573 P.2d 1217 (1978); and, Robinson v. State, Okl.Cr., 574 P.2d 1069 (1978). In addition, there have been a number of unpublished cases involving the same issue. The error has not necessitated reversal in all of these cases, but there has been error nonetheless. We are forced to conclude that some sort of guidelines are necessary in order to reduce the number of errors.

In State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967), the Minnesota Supreme Court found it necessary to establish such guidelines. In that state, when a prosecutor seeks to introduce evidence of other crimes committed by a defendant, the prosecutor must comply with procedures requiring advance notice to the defendant, specification of the exception on which the State relies, establishment of a connection between the crime charged and the other offenses sought to be proved, a need on the part of the State to prove the other offenses in order to carry its burden of proof, proof of the other crimes by clear and convincing evidence, and limiting instructions, given both at the time the evidence is admitted and in the final charge to the jury. Subsequent to the Minnesota Court's action, the Louisiana Supreme Court, in State v. Prieur, La., 277 So.2d 126 (1973), cited Billstrom and adopted a similar set of rules. After careful consideration, we believe that such guidelines are necessary for prosecutions in this state. We therefore hold that in all prosecutions commenced after this date the...