Burroughs v. State, F--74--248
| Decision Date | 19 November 1974 |
| Docket Number | No. F--74--248,F--74--248 |
| Citation | 528 P.2d 714 |
| Parties | Billy Ray BURROUGHS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Charles W. Stubbs of Stubbs & Stiner, Oklahoma City, for appellant.
Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.
Appellant, Billy Ray Burroughs, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRF--73--1716, for the offense of Carrying a Firearm, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1283. His punishment was fixed at a term of three (3) years imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.
The State's first witness, Michael O'Shea, a detective with the Vice Division of the Oklahoma City Police Department, testified that he and his partner, Detective Michael Hoover, had occasion to be at the Coachman Restaurant at approximately 12:35 on the morning of June 25, 1973. He stated that he went inside the restaurant while his partner remained in the detective cruiser. Shortly after being seated in the restaurant, he observed the defendant enter with three other people. As the defendant walked by Detective O'Shea, the detective observed that the defendant was wearing a pistol in a holster on his right side. (Tr. 10) After seeing this, Detective O'Shea got up and walked out to advise his partner of what he had seen. At this time they went back into the restaurant, located the defendant in a booth with the other three people, and walked up to him. Detective O'Shea walked up in front of the defendant, identified himself, showed defendant his credentials, and advised him to keep his hands on the table. Detective Hoover walked up behind the defendant, reached over his right shoulder down to his right side and removed the pistol the defendant was carrying. (Tr. 12) At this time, the defendant was arrested and removed to the police station. The remainder of Detective O'Shea's testimony on direct examination consisted of his identification of State's Exhibit 1 (the pistol), Exhibit 2 (the holster), and Exhibit 3 (five live rounds of .38 caliber ammunition).
On cross-examination, Detective O'Shea testified that the defendant had his left arm in a cast of some kind but could not remember if it was in a sling. He related that he left the restaurant before the defendant and the others actually got to the booth. He stated that he had heard that an older woman owned the restaurant and did not believe that defendant's wife owned it. He testified that he was not aware that the restaurant had been robbed prior to the morning of defendant's arrest. He finally testified that he had not made any investigation of any matter at the Coachman Inn Restaurant prior to June 25, 1973.
The State's next witness, Officer Don Acox, testified that he conducted a follow-up investigation of the defendant about 8:00 o'clock the morning of June 25, 1973. After advising the defendant of his rights, he was told by the defendant that he wished to remain silent. (Tr. 36)
The State's third witness, Dan Gray, Court Clerk, Oklahoma County, testified from the original records of Case No. CRF--70--2525, State versus Billy Ray Burroughs; following which a certified copy of same was introduced into evidence. He testified that there was judgment and sentence entered in the above case on a plea of guilty. It was entered on the 2nd day of November, 1970. The charge was Larceny of an Automobile, and the defendant was represented by counsel. There was no cross-examination of this witness. At this time the State rested its case.
The defendant called Hazel Burroughs as his first witness. She testified that she is the wife of the defendant and the owner of the Coachman Restaurant. On the night in question, she stated that she, her husband, and two friends went to the restaurant, arriving around 11:15, for the purpose of taking some change for the cashier. After entering the restaurant, she stopped at the cashier to give her the change. Upon opening her purse to get the change, she discovered that she also had a pistol with her. She identified State's Exhibit 1 as the pistol she took to the restaurant. She testified that she bought the pistol after being advised to do so by the police, for the protection of herself and her business. She identified defendant's Exhibit 1 as being the check with which she purchased the pistol from T.G. & Y. on June 16, 1973. Mrs. Burroughs stated that it was she, and not her husband, who took the pistol into the restaurant. After they were all seated in the booth, she took the pistol out of her purse and asked the defendant to take it and put it in the restaurant office. At this point the police officers walked up and arrested the defendant.
On cross-examination, she testified there was no way the defendant could have had the pistol in the parking lot before they entered the restaurant, as it was in her purse.
The defendant's next witness, Leroy McGowan, testified that he was with the defendant, Mrs. Burroughs, and June Whiteman on the night in question. Upon arriving at the restaurant in defendant's automobile, they all went in and were seated at a booth. He testified that he did not see whether the defendant had a pistol as they went into the restaurant and then stated that the defendant did not have a pistol on him. He stated that after they were all seated in the booth, Mrs. Burroughs took the pistol out of her purse and told the defendant, 'Look what I've got here.' (Tr. 95) At this point, the defendant grabbed the pistol and laid it back down on the table.
On cross-examination, he testified that the pistol was in a holster. He further stated that Mrs. Burroughs' statement upon taking the pistol out of her purse was, 'Look what I have done.' (Tr. 102) At this point, the defense rested.
Detective Michael O'Shea was recalled as a rebuttal witness. He testified that he did not lose sight of the defendant from the time defendant entered the restaurant until he saw the pistol in a holster on the defendant's belt. He stated that it was approximately five seconds from the time defendant entered until he saw the pistol. He stated that no one with the defendant stopped at the cashier when they entered.
The State's final rebuttal witness was Detective Michael Hoover, who testified that he was on duty with his partner, Detective O'Shea, on the night in question. While sitting in the detective cruiser, directly in front of the restaurant, he observed the defendant arrive with three other people. He testified that the lighting conditions were excellent, as the parking lot was well lighted and there were lights on the front of the restaurant. As the defendant walked past the cruiser, a gust of wind blew the defendant's jacket open, enabling him to observe that the defendant had a pistol in a holster on his right hip. (Tr. 126) At that point, he called headquarters and advised them that he would be out of the cruiser and the reason why. As he was preparing to get out, his partner walked out of the restaurant, at which time they determined what they were going to do. The remainder of his testimony substantially corroborated that of Detective O'Shea.
Defendant's first assignment of error alleges that there was insufficient evidence to show an identification of this defendant and the defendant in the prior conviction, in order to sustain a conviction. We cannot agree.
In Stanford v. State, Okl.Cr., 363 P.2d 515, it was determined that the conviction from the county where the accused resided, with the same name as that of defendant on file, is strong circumstantial evidence that the person is one and the same. We observe that no contradictory evidence was offered to show defendant was not the same person. This Court held in Williams v. State, Okl.Cr., 364 P.2d 702:
Likewise, there is no proper showing that said judgment and sentence was not a final order. Ther...
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Boltz v. State
...heard the information which the appellant complains was excluded and we find this assignment to be without merit. See Burroughs v. State, 528 P.2d 714 (Okl.Cr.1974). Appellant next contends that the trial court failed to instruct on heat of passion manslaughter as a lesser included offense ......
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Engram v. State, F--75--410
...reversible error. 2 Defendant maintains that this testimony violates the principle enunciated by this Court in Burroughs v. State, Okl.Cr., 528 P.2d 714 (1974), wherein it was held that a person has a right to remain silent when arrested, and the exercising of that right cannot be used agai......
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Burns v. State, F-76-978
...instruction on circumstantial evidence is not needed unless the State's case is wholly circumstantial. See inter alia, Burroughs v. State, Okl.Cr., 528 P.2d 714 (1974); McDaniels v. State, Okl.Cr., 520 P.2d 693 (1974); Hale v. State, Okl.Cr., 506 P.2d 924 (1973). Although the State never es......
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Myers v. State, F-80-810
..."wished to remain silent" in response to his Miranda rights has been held not so severe as to require reversal. See, Burroughs v. State, 528 P.2d 714 (Okl.Cr.1974). While we do not condone questioning which may intrude on a defendant's right to remain silent, we do not find that the stateme......