Daniels v. State

• Decision Date: 13 August 1976
• Docket Number: No. F--76--60,F--76--60
• Citation: 554 P.2d 88
• Parties: Earnest Lee DANIELS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 88

554 P.2d 88

Earnest Lee DANIELS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--60.

Court of Criminal Appeals of Oklahoma.

Aug. 13, 1976.

Richard A. Hoffman, Public Defender, Tulsa County, for appellant.

Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge.

Appellant, Earnest Lee Daniels, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Tulsa County, Case No. CRF--74--1749, for the offense of Attempted Robbery With Firearms, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 801. The jury fixed his punishment at Twenty-five (25) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

The State called as its first witness Lee Ann Hicks, a teller at the First National Drive-In Bank in downtown Tulsa, Oklahoma. The witness testified that on the morning of July 24, 1974, at 8:52 a.m she was in her drive-in teller's booth when an older model white car pulled into her lane. The witness testified that she thought there were three black males in the automobile. However, due to her intense concentration on the driver of the automobile she testified that she could only be positive of the presence of two persons in the automobile, both of whom were in the front seat. The witness stated that she had $23,000 at her window and that the driver of the automobile pointed the gun at her and said 'this is a robbery,' and demanded that she give him all of her money. At this point the witness dropped to the floor and pulled her silent alarm at which time she heard a loud explosion and the shattering of glass. From her position on the floor she used the hotline phone to inform bank officials of the incident.

The State called as its next witness Ruth Ella Randles, a customer of the First National Bank. On the morning of July 24, 1974, the morning of the attempted armed robbery, the witness pulled in behind a white or off-white 1965 model Chevrolet which had a dent on the right back fender. The witness further testified that because of her habit of observing the prefixes on Oklahoma license plates she specifically recalled the prefix of CU on the automobile immediately in front of her. While the witness was waiting in line behind the 1965 Chevrolet, she heard a loud explosion, and immediately looked into the car in front of her. The witness testified that it was a very clear day and that she was practically bumper to bumper with the automobile in front of her, all of which tends to corroborate her final assertion that she had no difficulty seeing into the automobile ahead of her. When the witness looked into the vehicle, immediately after the explosion, she observed two black males. While she momentarily glanced into the car ahead of her the black male on the passenger side of the car turned around and directly faced her. At this point the witness laid herself down in the seat of her car to protect herself. In this testimony the witness positively identified the defendant, Earnest Lee Daniels, as the passenger in the automobile used in the attempted robbery of the First National Drive-In Bank.

On cross-examination the witness was asked if she had ever seen or known of the defendant prior to the attempted robbery. The witness testified that on various occasions, approximately ten years before, she had observed the defendant playing with other children on a playground in Tulsa. She also testified that he was known by the name of 'Earnest.' After further questioning into the matter the witness stated that even if she were mistaken as to the identity of the young man on the playground in Tulsa, she was nevertheless certain that this defendant was the man whom she had seen inside the car at the First National Drive-In Bank. Witness Randles also testified that she had seen the defendant earlier in the spring of 1974 coming out of a Git-N-Go store in Tulsa.

The State called as its next witness Detective Charles W. Sasser of the Tulsa Police Department who was assigned to investigate the attempted armed robbery of the First National Auto Drive-In Bank. Detective Sasser testified that on July 25, 1974, he and his partner, Bill McCracken, questioned Ruth Randles concerning the incident which had occurred the previous day. Detective Sasser testified that he knew of the defendant, who was also called 'Speedy' Daniels. Approximately two weeks before the attempted robbery, Detective Sasser had observed the defendant in an automobile which fit the description of the automobile described by Ruth Randles. Upon checking his notes, he discovered that the tag number which he had inscribed in his notes was ZU--1918. Detective Sasser, knowing where the defendant resided, drove to the Morning Star Apartments looking for the defendant's automobile. In the parking lot at the apartments he found what he thought to be the defendant's car, only it bore the license number CU--1918. At this point Detective Sasser and his partner, Bill McCracken, picked up Ruth Randles for the purpose of identifying the automobile. While en route to the Morning Star Apartments from Ruth Randles' place of employment, Detective Sasser showed Ruth Randles seven mug shots, from which she identified the defendant, Earnest Lee Daniels, as being the man who sat in the passenger seat of the automobile used in the attempted robbery. Then, upon arriving at the apartment parking lot, Ruth Randles pointed out the defendant's car as that car which had been used in the attempted robbery. After returning Ruth Randles to her place of employment, Detective Sasser and his partner returned to the Morning Star Apartments and arrested the defendant who, after being informed of his rights, admitted ownership of the car identified by Ruth Randles. Detective Sasser testified that at this point the defendant's car was hauled to the Al Storey Wrecker Shop and was there photographed. Later, on the evening of the 25th, Ruth Randles again picked the defendant out of a lineup at police headquarters.

Thereafter, the State rested its case.

The defendant called as his own witnesses Lee Ann Hicks and Detective Sasser. The testimony of Lee Ann Hicks established the fact that agents from the Federal Bureau of Investigation made an intensive inquiry into the attempted robbery of the bank. The testimony of Detective Sasser was in regard to the results of several tests which were executed by himself and his partner for the purpose of determining whether or not it was possible for the defendant to have participated in the attempted robbery at 8:52 a.m. and then to have arrived back at his place of employment, Chandler Material Company, by 9:00 a.m. Detective Sasser testified that these tests were run in an unmarked police vehicle and that on some runs all traffic signals were obeyed and on other runs they were not obeyed. The test results ranged from 6 minutes and 45 seconds to 8 minutes and 15 seconds.

The defendant also called Hill Diven, plant superintendent of Chandler Material Company, the defendant's place of employment. Diven testified that the defendant began work at Chandler Material Company on July 18, 1974. The witness testified that he was in charge of approximately 85 employees and that the method used for recording time was a time clock. Each employee was given a time card over a specified period and was required to punch in and out. Company rules prohibited employees from punching anyone's card except their own. However, Diven testified that he had observed from time to time employees clocking in for one another. From the defendant's time card, dated July 24, 1974, Diven testified that the defendant clocked in at 7:03 a.m. and clocked out at 4:58 p.m. However, Diven testified that he did not see the defendant punch the clock himself but Diven did testify that he specifically remembered seeing the defendant, accompanied by George Brice, at 7:30 on the morning of July 24, 1974. But, again the witness testified that he did not know the whereabouts of the defendant after 7:30 that morning. Diven also testified that there were no guards or check points which would effectively keep an employee from coming and going as he pleased.

The defendant also called two agents from the Federal Bureau of Investigation, Lawrence Fann and John Harrington. These agents testified that no federal charges had been filed against the defendant. Agent Harrington testified that he took samples of glass from the teller's booth for the purpose of comparing them with samples of glass which were found in the back seat of, and embedded in, the defendant's automobile. These glass particles were sent to Washington, D.C. to the F.B.I. laboratory where they were analyzed. Agent Harrington further testified that the results of the tests, which he received from the laboratory, determined that the particles of glass were not identical.

The defendant also called his mother, Velma Jennings, and his sister Shirley Palmer, as witnesses in his behalf. The testimony of these two persons was virtually identical. The obvious reason for the presentation of these two witnesses was to establish the residency of the defendant while he was purportedly observed by Ruth Randles playing on a school ground in Tulsa. The defendant, according to this testimony, grew up in Clinton, Oklahoma, and never resided in Tulsa until just prior to his arrest for the attempted armed robbery. His mother testified that he attended school in Clinton when he was 10, 11, 12, 13, and 14 years of age. However, on cross-examination the defendant's mother did testify that the defendant had, on various occasions, spent the night with relatives in Tulsa.

The defendant also called Shiela Williams, his girl friend, who also lived at the Morning Star Apartments. The witness testified that on the morning of July 24, 1974, the defendant, who was sleeping in her apartment, arose at...