Diaz v. State

• Decision Date: 06 November 1986
• Docket Number: No. F-83-731,F-83-731
• Parties: Mario DIAZ, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 503

728 P.2d 503

Mario DIAZ, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-731.

Court of Criminal Appeals of Oklahoma.

Nov. 6, 1986.

Rehearing Denied Dec. 19, 1986.

Mark Barrett, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Mario Diaz, the appellant, was convicted of First Degree Murder in the commission of Robbery With A Dangerous Weapon pursuant to the felony-murder doctrine codified at 21 O.S.1981, § 701.7(B). Appellant was tried by jury in Cleveland County District Court, Case No. CRF-82-938, before the Honorable Alan Couch. The jury returned a sentence of life imprisonment.

On February 1, 1982, appellant boarded a plane in Tucson, Arizona, and flew to Oklahoma City to meet with Dr. Harold Wurst. Appellant was having financial problems and Dr. Wurst, a former co-worker, apparently agreed to loan the appellant $2,500.00. Appellant, accompanied by Vaughn Matthews, arrived at Wurst's home in Moore, Oklahoma, about dusk on February 2, 1982. The State introduced direct and circumstantial evidence that appellant pulled a butcher knife out of his coat sometime while he was in Wurst's home, that Wurst was tied up before appellant beat him with a pistol, that Wurst wrote one check for $1,000.00 and began writing a second check, that Wurst's home was searched, and that the appellant took Wurst's .22 Colt Woodsman pistol and two checks. Other items missing from Wurst's home included several rifles and a Visa credit card. Wurst's empty wallet and its miscellaneous contents were found scattered on the living room floor. The victim's checkbook was found in a pool of blood in the entryway. Dr. Wurst died as a result of receiving approximately twenty blows to the head with a blunt instrument.

Appellant testified that he became "irritated" when Wurst decided to loan him only $1,000.00, and that a heated argument ensued. According to Diaz and Matthews, Wurst became edgy and pulled a .22 Colt Woodsman pistol out from a coffee table and pointed it at Matthews. Appellant claimed that he wrestled the gun out of Wurst's hand, and then began beating Wurst with the pistol to prevent Wurst from regaining possession. Matthews admitted helping the appellant carry Wurst's body into the bathroom where it was discovered in the bathtub, and claimed that he took several rifles later at the appellant's request. Both appellant and Matthews denied taking the Visa card.

In his first assignment of error, appellant contends that the evidence was insufficient to establish that Wurst was killed while the appellant was in the commission of robbery with a dangerous weapon. See 21 O.S.1981, § 701.7(B). Due process requires a reviewing court to examine the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985).

Initially, appellant asserts that the homicide did not occur in the commission of a robbery because Wurst's property was taken as an "afterthought" following the struggle and fatal beating, and thus no intent to steal arose until after the homicide. At common law, an intent to steal at the time of the taking was necessary to constitute robbery. R. Perkins, Criminal Law 343 (3d ed. 1982). The applicable Oklahoma statutes, however, changed the common law so that the taking need only be "wrongful" or against the will of the victim. Id. at 343 n. 2. See 21 O.S.1981, § 791; OUJI-CR 486 and commission comment. See also Smith v. State, 695 P.2d 864, 867 (Okl.Cr.1985); Traxler v. State, 96 Okl.Cr. 231, 251 P.2d 815, 836 (1952). The requirement that the taking be "wrongful" was satisfied by appellant's testimony that he forcefully wrestled Wurst's handgun away from Wurst against his will. See Smith v. State, 695 P.2d 864, 867 (Okl.Cr.1985).

Appellant further contends that it is impossible to rob a dead man. First, we note that appellant forcefully took the victim's own pistol away from him during a struggle in which the victim was active. Second, even assuming that Wurst was dead at the time his other property was taken, the fact that a person robbed by force or fear is knocked unconscious by an instrument in the hands of the defendant, and the victim is unconscious while his property is taken, does not reduce the crime to larceny from the person. See Mitchell v. State, 408 P.2d 566, 568 (Okl.Cr.1965). Moreover, it is not necessary that a robbery victim see or hear the taking of his property. Lancaster v. State, 554 P.2d 32, 34 (Okl.Cr.1976).

Furthermore, we find that the precise sequence of events is unimportant. The killing may precede, coincide with or follow the robbery and still be done in the commission of robbery with a dangerous weapon under 21 O.S.1981, § 701.7(B). See Cloman v. State, 574 P.2d 410, 420-21 (Wyo.1978); Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275, 280-81 (1976); State v. Nelson, 65 N.M. 403, 338 P.2d 301, 306-07, cert. denied, 361 U.S. 877, 80 S.Ct. 142, 4 L.Ed.2d 115 (1959).

Appellant's admission that he forcefully took a pistol away from Wurst rebuts his contention on appeal that no force was used to accomplish a taking of Wurst's property. Appellant further testified that he beat Wurst with the pistol in order to prevent Wurst from regaining possession. "[I]f one snatches property from the hand of another and uses force or intimidation to prevent an immediate retaking by the other, this is all one transaction and constitutes robbery." R. Perkins, Criminal Law 349 (3d ed.1982) (footnote omitted). See Mangerich v. State, 93 Nev. 683, 572 P.2d 542, 543 (1977). The appellant thus used force to complete the wrongful taking of Wurst's property. See Smith v. State, 695 P.2d 864, 868 (Okl.Cr.1985).

Finally, appellant claims that the evidence was insufficient to establish a causal connection between the taking of Wurst's property and his death. Appellant correctly asserts that at the time of the homicide, the accused must be engaged in some act which is required to complete the underlying felony. See Franks v. State, 636 P.2d 361, 365 (Okl.Cr.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1729, 72 L.Ed.2d 147 (1982). The record contains competent evidence from which a reasonable jury could infer beyond a reasonable doubt that the appellant used force or fear against Wurst in order to obtain and retain possession of Wurst's property. In addition to appellant's admission to beating Wurst with a firearm to retain possession of such firearm, there was also sufficient circumstantial evidence from which the jury could infer that the appellant used a butcher knife to intimidate Wurst into parting with his property. The jury could reasonably infer that the appellant inflicted fatal injuries upon Wurst in order to overcome his resistance to the taking of his pistol and other property. Therefore, consistent with Franks, the force or fear used by the appellant was necessary to complete the underlying felony of robbery with a dangerous weapon. We find that there was a nexus between the death of Wurst and the underlying felony. See Wade v. State, 581 P.2d 914, 916 (Okl.Cr.1978).

Moreover, the record demonstrates that the homicide and robbery were committed during one continuous transaction, that such acts were so closely connected as to be inseparable in terms of time, place, and causal relation, and the actions tended to be explanatory of each other. Thus, the homicide was committed during the res gestae of the robbery and during its commission under 21 O.S.1981 § 701.7(B). See Clark v. State, 558 P.2d 674, 678 (Okl.Cr.1977). See also Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275, 280-81 (1976); People v. Jentry, 69 Cal.App.3d 615, 138 Cal.Rptr. 250, 258 (1977); State v. Connor, 241 N.W.2d 447, 460-64 (Iowa 1976).

In his second assignment of error, appellant argues that the robbery was not accomplished through the use of a dangerous weapon. We disagree. Robbery with a dangerous weapon is accomplished by using "any firearms or any other dangerous weapon" to complete a robbery. 21 O.S.1981, § 801. Almost any ordinary object, used in a manner which may cause death or great bodily harm, may be considered a dangerous weapon. Pitts v. State, 649 P.2d 788, 791 (Okl.Cr.1982). Appellant himself admitted beating the victim on the head with a firearm in order to prevent an immediate retaking of the weapon by the victim. The firearm was undeniably used in such a manner as to cause death or great bodily harm within the meaning of Pitts. Wurst in fact died as a result of being beaten unmercifully with his own handgun by the appellant.

Matthews testified that the appellant tied up Wurst before beating him with the handgun, and that at some point the appellant pulled a butcher knife out of his coat pocket. The State presented evidence that the home of Wurst had been thoroughly searched. On this record, we find that a reasonable jury could conclude that the appellant either used a firearm to beat the victim or a knife to intimidate him in order to obtain or retain the victim's property. See 21 O.S.1981, §§ 791, 792, 801. Although appellant claimed that his use of the handgun was not intended to enable him to take Wurst's property, the credibility of witnesses and the weight to be given their testimony was properly left to the jury. See Rounds v. State, 679 P.2d 283, 287 (Okl.Cr.1984); Renfro v. State, 607 P.2d 703, 706 (Okl.Cr.1980). Thus, a reasonable jury could conclude from the record that the appellant forcefully used a firearm to complete the actual taking of Wurst's property. See Smith v. State, 695 P.2d 864, 868 (Okl.Cr.1985).

Accordingly, we hold that the State presented sufficient evidence from which a rational trier of fact could conclude beyond a reasonable doubt that Wurst was killed while the appellant was in the commission of robbery...