Collins v. State, F--75--474

• Decision Date: 17 March 1977
• Docket Number: No. F--75--474,F--75--474
• Citation: 561 P.2d 1373
• Parties: Bobby Wayne COLLINS Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1373

561 P.2d 1373

Bobby Wayne COLLINS Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--474.

Court of Criminal Appeals of Oklahoma.

March 17, 1977.

Rehearing Denied April 5, 1977.

Stephen Jones, Enid, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge.

Appellant, Bobby Wayne Collins, hereinafter referred to as defendant, was charged in the District Court, Woodward County, Case No. CRF--74--53, for the offense of Murder in the First Degree, in violation of 21 O.S.Supp.1973, § 701.1, 8. After a change of venue to Garfield County, he was tried by a jury and convicted, and in accordance with 21 O.S.Supp.1973, § 701.3, he was sentenced to death. From said judgment and sentence a timely appeal has been perfected to this Court.

The crime out of which this case arose was indeed a terrible one. Four people--the entire Thrasher family of Woodward, Oklahoma--were shot and killed in their own home. The bodies were discovered by Bob Patee, a co-worker of Mervin Thrasher, who testified at the trial that on September 2, 1974, he had twice called Mr. Thrasher to come to work. The first time Patee called was at approximately 4:30 in the morning, at which time Thrasher went to work and helped Patee repair an engine. The second time, around 8:00 a.m., Thrasher told Patee that he could not come to work for a couple of hours, and then never did show up; but, since it was the Labor Day holiday and employees were not required to work overtime, Patee did not find this particularly unusual. However, when Thrasher did not come to work the next day and did not answer the telephone, Patee decided to stop by the Thrasher residence after work. He arrived at the house about 10:30 p.m. on September 3, 1974. The house was dark, but with the aid of a flashlight he began looking through the windows until he saw the body of Mrs. Thrasher lying on the floor.

Patee went immediately to the police, and when investigators entered the house they found both Mervin Thrasher, age 28, and his wife Sandra, age 27, lying face down on the bedroom floor. Mervin Thrasher's feet were tied together and his hands were bound behind his back. He had been shot in the head three times. Sandra Thrasher was tied in a similar fashion, but with her feet pulled up and tied to her hands. She had been shot in the head twice. The two Thrasher children were in bunk beds in the same room: 18-month-old Robert in the bottom bed, shot twice in the head, and 5-year-old Penelope in the upper bed, shot three times in the head.

Although the murder weapon was never recovered, investigation indicated that all four persons were shot with a .22 rifle belonging to Thrasher, since shell casings found in the bedroom matched casings found at the Thrasher's former residence in Guymon, Oklahoma. Mervin Thrasher had reported the rifle stolen a week before, when someone had entered the house during the day while no one was at home, and had taken the rifle and some other things. The defendant confessed to the burglary, but he maintained that there was a second person involved, and that he had not been in town on the day of the murders.

The defendant testified that on August 27--six days before the crime took place--he had borrowed a car from his cousin and had gone to Enid in a vain attempt to find a new job. The cousin, however, denied loaning his car to the defendant on that date. The defendant said that on the way back to Woodward he picked up a hitchhiker who said his name was Jerry. The defendant learned his last name to be Prowess by looking at the identification card on his backpack. The hitchhiker asked to spend the night, to which the defendant agreed. Defendant dropped Prowess off at his house, returned his cousin's car, and went to work at the 24-hour truck stop where he worked the night shift. The next morning when he returned home, Prowess was not there. Defendant went to sleep, but was awakened about noon by Prowess who wanted him to 'go look at a house.' The two of them walked to a rural residence just outside of town and entered through the back door, which was unlocked. They stole a number of items, including a rifle, and then started back to town. They hid the rifle so that they would not be seen walking through town with it. That evening Prowess left, taking some of the stolen items, and the defendant said that he never saw him again.

Defendant testified that on the day of the crime he got off work at 6:30 a.m. He had just bought a car three days before, and he immediately left town with the intention of visiting his brother in Canadian, Texas. However, being unfamiliar with northwestern Oklahoma, he took a wrong turn and wound up near the Kansas border. At this point he abandoned his intention of going to Texas, and returned to Woodward. When he got back--at about 9:15 a.m.--he went to Gibson's Discount Store and bought a pair of tennis shoes. Although the tread on the shoes matched prints found at the Thrasher home, the defendant introduced into evidence a price tag and cash register tape from Gibson's to show that he had bought the shoes after the murders were committed. The tape did not name specific items sold, but it did show a sale with the same price as his shoes from the Shoe Department. Since Gibson's did not open until 8:55 a.m., the purchase would not have been made until after the murders were thought to have been committed.

An agent from the Oklahoma State Bureau of Investigation assigned to the case testified that in the course of the investigation the defendant gave several inconsistent statements after having been fully informed of his rights in each instance. At first he did not admit to having participated in the burglary, saying only that Prowess had come back to his house on the 28th with cigarettes, a shaver and a rifle, and that Prowess had left on Sunday, September 1, 1974. Later, he admitted taking part in the burglary, and still later he told the agent that he had gone to the Thrasher home on the day of the murders, but had left the house before Prowess fired any shots. He said that Prowess threatened to kill him if he told anyone, and that he took Prowess to the edge of town and let him out of his car. The agent also testified that at one point the defendant made some incriminating statements, saying 'I see them in my sleep at night, . . . My God that little girl was still asleep,. . . the kids I can't get them out of my mind, that little boy just looked at the gun.' (Tr. 874--875) The defendant denied saying that the little girl was asleep, and said that the OSBI agent had previously stated to him that the boy must have been looking at the gun, and that when he became upset during questioning he had merely repeated it back. The prosecutor argued that the defendant's stories contained material which no one but the killer could know, but the defense contended that because of rumor and excessive media coverage everything the defendant had said had been in public circulation.

The defendant's first assignment of error is that the evidence was insufficient to sustain the conviction of murder in the first degree, either on his own or by aiding and abetting the alleged hitchhiker. Both parties argued the question at length, but the rule of this Court is clear with regard to the sufficiency of the evidence:

'While much of the evidence is circumstantial, this Court has often held a criminal case may be proved circumstantially and reasonable inferences drawn therefrom have the same probative effect as direct testimony. Young v. State, Okl.Cr., 373 P.2d 273. Additionally, circumstantial evidence need not exclude every hypothesis or negate any possibility other than guilt. Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969). And finally, it is the exclusive province of the jury to weigh the evidence and determine the facts. Jones v. State, Okl.Cr., 468 P.2d 805; and where there is competent evidence from which the jury might reasonably conclude the defendant is guilty, the case will not be reversed on appeal on a contention that the evidence is not sufficient. Brewer v. State, Okl.Cr., 452 P.2d 597.' Logan v. State, Okl.Cr., 493 P.2d 842, 846 (1972).

The defendant cites Staples v. State, Okl.Cr., 528 P.2d 1131 (1974), as holding that to convict on circumstantial evidence alone, every reasonable hypothesis except guilt must be excluded. But in that case involving possession of marihuana, we also said that such possession could be inferred if there were 'additional independent factors showing knowledge and control.' Among such factors we included incriminating statements or conduct on the part of the accused. In the instant case, the circumstantial evidence implicating the defendant taken together with the testimony of the OSBI agent as to the statements made by defendant was sufficient to support the verdict of guilty. The defendant also cites Cole v. State, Okl.Cr., 467 P.2d 511 (1970); however, the situation in that case was extreme, as the State failed to introduce evidence available to it which could have verified or negated the possibility that the victim in that case committed suicide rather than having been murdered. In the case at bar the record does not indicate any similar flagrant deficiency, and we do not find any grounds which would justify interfering with the jury's function.

The defendant next assigns as error that the trial court refused the defendant's requested instruction on murder in the second degree. Title 21 O.S.Supp.1973, § 701.2, defines murder in the second degree as follows:

'1. When perpetrated without authority of law, and with a premeditated design to effect the death of a person, or of any other human being, but by an act not enumerated in the preceding section;

'3. When perpetrated without any design to effect death by a person engaged in the commission of any felony other than the felonious acts set out in Section 1 of...