Glaze v. State, F-76-950

• Decision Date: 16 June 1977
• Docket Number: No. F-76-950,F-76-950
• Parties: Howard Lee GLAZE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 710

565 P.2d 710

Howard Lee GLAZE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-76-950.

Court of Criminal Appeals of Oklahoma.

June 16, 1977.

John T. Elliott, Public Defender, John M. Stuart, Asst. Public Defender, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Duane N. Rasmussen, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Howard Lee Glaze, hereinafter referred to as defendant, was convicted upon trial by jury in the District Court, Oklahoma County, Case No. CRF-75-3708, for the offense of Attempted Burglary in the Second Degree, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 42 and 21 O.S.1971, § 1435. The defendant was sentenced to serve a term of four (4) years in the custody of the Department of Corrections and from said judgment and sentence a timely appeal has been perfected to this Court.

In support of its case in chief the State called three witnesses, the first being Mr. George L. Hales. He testified that he was the owner and occupant of a mobile home in the vicinity of Jones, Oklahoma, in Oklahoma County; that on the night of September 26th, 1975, he arrived at his home at approximately 7:00 p. m. after going shopping. Upon arrival at his home, he observed a blue Cadillac sitting in the driveway. At first glance, it appeared the automobile was unoccupied; however, as he and his wife exited their car and approached the Cadillac, a man raised his head from the front seat of the automobile. Mr. Hales then questioned the man while his wife went in the mobile home. The man, whom he identified as Raford Lee Tuggle, told Mr. Hales that he was lost and looking for Hiwassee Road. At approximately that time Mrs. Hales yelled not to let anyone get away because something was wrong inside the house. At this time Mr. Hales observed the automobile in which Mr. Tuggle was sitting, pull away at a high rate of speed and strike a cattle guard-type apparatus as it fled the scene. However, Mr. Hales was able to obtain the tag number of the automobile as it drove away. He then described the condition of the mobile home before going shopping and its condition when he returned.

The next witness for the State was Rayford Lee Tuggle, who testified that he was a co-defendant in this case, having plead guilty to the offense of Attempted Burglary in the Second Degree. He stated that he met Mr. Glaze, the defendant, in the afternoon of September 26, 1976, at which time they both stated they needed some money. They then drove to the mobile home of Mr. Hales' and parked the blue 1966 or 1967 Cadillac where the defendant got out of the car and instructed Mr. Tuggle to honk the horn if anyone approached. Mr. Tuggle stated that he honked the horn on two occasions once when a car came but did not enter the driveway, and finally when Mr. Hales drove up. His testimony concerning the conversation with Mr. Hales was essentially the same as that witness.

Mr. Tuggle then testified that he was approached by the police and originally denied being at the scene, but later "confessed" and implicated the defendant herein for the reason he did not want to "take the rap alone."

Cross-examination of this witness concerned a promise by his attorney that if he plead guilty and "turned State's evidence" he would most probably obtain a suspended sentence.

The final witness for the State was Officer Bill Davis of the Jones Police Department. Officer Davis testified that he answered a call to go to the Hales' residence on the 26th of September, 1975, in the late evening hours. At that time he was given a description of Mr. Tuggle along with a description of a 1965 blue Cadillac and a tag number. He testified he then received a report that the automobile belonged to the defendant in this case and after further investigation, he arrested both the defendant and Mr. Tuggle.

On cross-examination, Officer Davis related that Mr. Tuggle at first denied his participation, but later admitted it and also implicated the defendant.

The State then rested and the defendant demurred and the same was overruled.

For his first assignment of error, the defendant urges that the trial court erred in failing to sustain his demurrer to the State's evidence in chief; more specifically, that there was insufficient evidence to corroborate the testimony of an accomplice, particularly regarding the defendant's participation in the offense.

As a safeguard for the purpose of protecting an accused, the Legislature long ago enacted 22 O.S.1971, § 742, which reads as follows:

"A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof."

Many states have a similar statute, the primary purpose of which is to assure that no person is convicted of a crime solely upon the testimony of an accomplice whose motives for testifying might be questionable.

The real question arises, then, concerning the strength of the corroborating evidence. This Court has long held with the view that such evidence need not be great, either in quantity or quality. In Calhoun v. State, Okl.Cr., 406 P.2d 701 (1965), we stated, in the 6th paragraph of the Syllabus:

"Each fact and circumstance relied upon to corroborate testimony of accomplice need not, standing alone, establish a connection between the defendant and crime, but it is sufficient if all facts and circumstances, when considered together, are consistent with each other and inconsistent with any other reasonable hypothesis but defendant's connection therewith."

And again in Hathcoat v. State, 71 Okl.Cr. 5, 107 P.2d 825 (1940), we stated:

"The law prescribes no standard for the strength of the corroborating evidence, and there is a failure to corroborate only if there be no evidence legitimately having that effect. Underwood v. State, 36 Okl.Cr. 21, 251 P. 507."

We have also held with the view that this Court may take the strongest view of the corroborating testimony that such testimony will warrant where the sufficiency of the corroborating evidence is challenged. Barber v. State, Okl.Cr., 388 P.2d 320 (1964); Barrett v. State, Okl.Cr., 357 P.2d 1020 (1960); Eaton v. State, Okl.Cr., 404 P.2d 50 (1965).

A careful review of the record indicates that there was independent evidence which tended to connect the defendant with the commission of the offense of "Attempted Burglary." While there is no doubt that the most damaging evidence against the defendant was given by his accomplice, there is evidence that defendant's automobile was used in the commission of the offense. (Tr. 26 and 27) There is also evidence from which the jury could find that the offense was committed by two or more persons. We have also held that corroborating evidence may be solely circumstantial. See Heartsill v. State, Okl.Cr., 341 P.2d 625 (1959).

In a fairly recent case, with very similar circumstances, this Court upheld such a conviction. In that case, concerning Burglary in the First Degree, a man and his wife were awaken in the middle of the night to see two individuals inside their home. After the owner of the premises attempted to fire on the defendants, one got away while the other remained at the scene. The remaining accomplice gave the initials of the defendant plus the make and color of the automobile in which he was riding. Some time later a local sheriff arrested the defendant for Driving While Intoxicated, while he was asleep in an automobile matching that description and learned that his initials were the same as those given by the accomplice. In that case ¹ the only corroborating evidence coming from independent sources was that there were two burglars and a make and color of the automobile. In Collier, we stated:

"We consider the circumstantial evidence that defendant was apprehended in a 1959 red and white Chevrolet automobile as being sufficient circumstantial evidence to corroborate the accomplice's testimony in the State's case. . . . This circumstance standing alone was sufficient to warrant the trial court's denial of defendant's demurrer and motion for directed verdict."

Therefore, we find as a matter of law, that there was sufficient evidence tending to corroborate the testimony of the accomplice to justify the trial court's overruling the demurrer and sending the issue to the jury. We also note that the trial court adequately instructed the jury regarding an accomplice and the evidence required to corroborate his testimony as well as an instruction concerning circumstantial evidence. It has been held by this Court that the sufficiency of the evidence tending to connect the defendant with the commission of the crime is for the jury. Scott v. State, 72 Okl.Cr. 305, 115 P.2d 763 (1941); Hathcoat v. State, supra, and Wilkins v. State, 70 Okl.Cr. 1, 104 P.2d 289 (1940).

Finally, we are very reluctant to overturn the verdict of a jury when there is some evidence tending to connect the defendant with the commission of the offense. Bond v. State, 54 Okl.Cr. 39, 14 P.2d 425 (1932); Brant v. State, 53 Okl.Cr. 216, 9 P.2d 963 (1932), and Brown v. State, 52 Okl.Cr. 110, 3 P.2d 237 (1931).

Therefore, we hold that while the corroborating...