Dodson v. State

• Decision Date: 06 April 1977
• Docket Number: No. F--76--579,F--76--579
• Citation: 562 P.2d 916
• Parties: Richard Eugene DODSON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 916

562 P.2d 916

Richard Eugene DODSON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--579.

Court of Criminal Appeals of Oklahoma.

April 6, 1977.

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

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., John J. Powers, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Richard Eugene Dodson, hereinafter referred to as defendant, was charged and tried in the District Court Tulsa County with the offenses of Murder in the First Degree in violation of 21 O.S.Supp.1973, § 701.1, and Shooting With Intent to Kill, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 652, and Robbery With Firearms, After Former Conviction of a Felony, in violation of 21 O.S.Supp.1973, § 801. He was acquitted of Murder in the First Degree, Case No. CRF--75--2181, and convicted and sentenced to One Hundred Ninety Nine (199) years for Shooting With Intent to Kill, After Former Conviction of a Felony, Case No. CRF--75--2182, and Fifty (50) years for Robbery With Firearms, After Former Conviction of a Felony, Case No. CRF--75--2183, and from said judgments and sentences, a timely appeal has been perfected to this Court.

At the trials, which were consolidated by agreement, Ina Louise Morris testified that on September 15, 1975, she was employed at the U-Tote-M Store at 5950 South 33rd West Avenue in Tulsa. At approximately 10:50 p.m. she and the night manager, Clayton Chandler, started making preparations to close the store. She was in the back of the store stocking the pop cooler when she observed a person, whom she identified in Court as the defendant, looking at her. The defendant pointed a pistol at her and ordered her to get down on her knees. She replied 'you've got to be kidding,' whereupon the defendant shot her in the right shoulder. The defendant closed the cooler door and told her if she looked up he would kill her. After several minutes, she raised her head and defendant started firing the pistol at her. Her body went numb and she lost consciousness. When she awakened she left the cooler and found Mr. Chandler lying on the floor. The safe and cash drawer were open. She was subsequently transported to St. Francis Hospital where she remained three days. She had wounds in her shoulder, head, face and neck.

Officer R. D. Morris, testified that on September 15, 1975, at approximately 10:55 p.m., he responded to an armed robbery call at the U-Tote-M Store at 5950 South 33rd West Avenue. He observed his wife, Ina, sitting in a chair with blood about her person. He checked Clayton Chandler and could not find any life signs.

The parties stipulated that if Dr. Lee Beamer were called to testify that he would testify that he performed an autopsy upon Clayton Chandler. In his opinion the cause of death of Mr. Chandler was multiple gunshot wounds of the thorax, abdomen and extremities.

Detective Charles Jordan testified that he arrived at the U-Tote-M Store at approximately 11:13 p.m. He assisted in the investigation and found several shell casings near the counter area of the store. He further identified numerous lead fragments and several slugs which were recovered from the scene.

An in camera hearing was held on motions of defendant and co-defendant, Michael Bascum Selsor, to suppress their alleged confessions. At the conclusion of the hearing the trial court ruled that the statements were voluntarily given and overruled the motions.

John James Evans testified that he was employed as a major Crime Investigator for the Santa Barbara, California Police Department. He was present on September 22, 1975, when defendant and co-defendant Selsor were arrested in a beach parking lot in Santa Barbara. He subsequently interrogated both defendants in the presence of Sgt. Williams. Each was advised of his Miranda rights and affirmatively acknowledged the waiver of the same. The defendant stated that he was with co-defendant Selsor on the evening of September 15, 1975. They passed by a U-Tote-M Store and noticed that traffic was light in the area. They were both armed and had a conversation concerning robbing the store. Prior to entering the store, defendant Selsor stated that they should kill the employees. He went to the back of the store and told the female employee to be still and lie down. She laughed at him and he fired a warning shot in her direction. He heard co-defendant Selsor tell the elderly gentleman by the cash register that this was a robbery. He next heard several shots coming from the area of the cash register. He stepped back and fired four or five shots through the glass window toward the female employee.

Defendant Selsor's statement was similar. He too, stated that they did not intend to have any witnesses around and planned on killing the employees after the robbery. He shot the elderly gentleman and defendant Dodson shot the female. Defendant Selsor stated that they only got $500.00 from the store.

Officer Evans identified State's Exhibit No. 17, as a .22 caliber pistol which was recovered from under the seat of defendant Selsor's automobile in Santa Barbara. The witness subsequently released the pistol to Officer D. A. Roberts, of the Tulsa Police Department.

On cross-examination, the witness testified that Dodson stated that after he heard shots he 'freaked out' and fired toward the girl. The witness further stated that Dodson said that he did not intent to his her.

D. A. Roberts testified that he was employed as a Homicide Investigator for the City of Tulsa. He went to Santa Barbara to pick up Dodson and Selsor and return them for trial. Both defendants were dressed in only bermuda shorts and so the witness went to the Santa Barbara Police automobile storage garage, where defendant's car was stored, in order to locate proper clothing for them to wear on their return trip. While getting the clothing from defendant Selsor's automobile, the witness recovered three live .22 caliber cartridges, identified as State's Exhibit No. 18. On the way back to Oklahoma, the witness advised both Dodson and Selsor of their Miranda rights. Dodson stated that he wanted to talk to the witness when they got back to Tulsa. The witness visited defendant Dodson in the Tulsa County Jail on September 30, 1975, and again advised him of his constitutional rights. Dodson stated that defendant Selsor had said prior to the robbery that 'we're going to take out the witnesses,' and that when he heard Selsor fire shots he commenced firing because he had to hold up his end of the bargain.

Tom Lewallen testified that he was the senior investigator in charge of the identification section of the Police Laboratory. He conducted certain tests on State's Exhibit No. 17, the .22 caliber revolver, and on the various projectiles and casings found at the scene, as well as the live shells recovered from the automobile in California.

The State then rested.

For the defense, Dr. Rustico Dizon Garcia testified that he was the chief forensic psychiatrist at the Eastern State Hospital in Vinita. Defendant was admitted to the hospital for observation and examination. He further stated that based upon the examination he was of the opinion that the defendant was not psychotic or legally insane. The defendant had told him that on September 15, 1975, he had consumed alcoholic beverages and used 'a gob of speed.' The witness further testified that an evidentiary hearing, was held outside the presence of the jury, that he did not have an opinion as to whether defendant was psychotic on the day which the crime was committed. The testimony of Dr. Garcia was subsequently suppressed.

In his first assignment of error, defendant Dodson asserts that his rights were prejudiced when the trial judge required both him and co-defendant Selsor to be represented by the same counsel. ¹ The assertion was made just prior to trial that Dodson was going to plead not guilty by reason of insanity, and Selsor was pleading simply not guilty; and that there were inconsistent defenses in that Dodson would have to admit his complicity while Selsor would seek to deny his own. Therefore, it is contended that counsel for both defendants were put in the ethically untenable position of having to decide which defendant he wished to defend with the most zeal. That is, if counsel elected to put Dodson on the stand in an attempt to establish insanity, then Selsor would necessarily be implicated by Dodson's testimony; and that if counsel did not put Dodson on from fear of implicating Selsor, then Dodson would be denied his right to present his own defense.

Assuming for the sake of argument that this theory is correct, nevertheless we are constrained to find defendant's assignment of error to be without merit. This is so, because defendant Dodson wholly failed to produce at trial any evidence which would lend credence to his defense of insanity. The only witness which defendant produced on this issue, Dr. Garcia, stated in response to questioning that he had no opinion as to defendant's psychological condition at the time the offense occurred. Due to the paucity of evidence on this matter, no instruction regarding insanity was requested or given. In light of this we hold that even if we assume it was error for the trial judge to refuse to appoint outside counsel, which issue we do not reach herein, such error was harmless, and we cannot reverse on this account. See, 20 O.S.1971, § 3001, Harmless Error.

The defendant's second assignment of error is that the trial court erred by suppressing the testimony of Dr. Garcia, regarding the defendant's mental condition. We again, must disagree. As discussed in the first assignment of error, Dr. Garcia testified in the evidentiary hearing that he had no opinion with medical certainty as to defendant's competency on September 15, 1975. He further testified that any opinion he might make would simply be a guess. We therefore agree with...