Glidewell v. State, F-79-169

• Decision Date: 13 April 1981
• Docket Number: No. F-79-169,F-79-169
• Parties: Dennis Lee GLIDEWELL, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1351

626 P.2d 1351

Dennis Lee GLIDEWELL, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-169.

Court of Criminal Appeals of Oklahoma.

April 13, 1981.

An appeal from the District Court, Oklahoma County; Joe Cannon, judge.

Dennis Lee Glidewell, appellant, was convicted at a jury trial of First Degree Murder in Oklahoma County District Court Case No. CRF-78-521, was sentenced to life imprisonment and appeals. JUDGMENT AND SENTENCE AFFIRMED.

Demetri Anastasiadis, Asst. Public Defender, Oklahoma County, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., C. Elaine Alexander, Asst. Atty. Gen., of Oklahoma, Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

On September 12, 1978, the appellant was tried and convicted for Murder in the First Degree in violation of 21 O.S.Supp.1976, § 701.7, in Oklahoma County District Court Case No. CRF-78-521. He was found guilty and sentenced to life imprisonment.

It was established at trial that a robbery and murder were committed at Little Dee's Grocery Store in Oklahoma City on February 1, 1978. The appellant's involvement in the crime was disputed at trial. Since the four assignments of error are evidentiary, any facts needed to resolve the issues will be discussed with the particular proposition of error.

First, the appellant asserts that the trial court erred by allowing the prosecutor to argue, over objection, that the appellant had "masterminded" the crime. The portion of the closing argument objected to reads in pertinent part as follows:

But can there be any question of any kind, much less a reasonable doubt of it any question of any kind but what Dennis Glidewell planned this robbery.

You know, of the four he's the oldest. Could it be that under this evidence he is actually the mastermind of the whole thing and he's guiding and directing these younger fellows to do these things?

Other similar references were made by the prosecutor in his closing argument.

The appellant urges this Court to reverse the lower court's decision on the ground that the prosecutor's statements were totally unsupported by the evidence and unfairly prejudicial. However, reasonable inferences and deductions drawn from evidence presented at trial are generally permissible. Tharps v. State, 555 P.2d 1054 (Okl.Cr.1976); McDonald v. State, 553 P.2d 171 (Okl.Cr.1976). In the present case, the prosecuting attorney's remarks, implicating the appellant as the "mastermind" of the crime, were reasonably inferred from testimony that appellant was the one who surveyed the store and decided that the victim should die; from uncontroverted testimony that appellant drove the getaway car and took his share of the stolen money; from evidence showing that the appellant was with the others just hours before the crime and was the oldest of the group; and from evidence tending to establish that the appellant directed the others to remove the gun from his car. Since this evidence could reasonably lead one to the conclusion that the appellant had planned the murder, the prosecutor's remarks were not improper.

Furthermore, even if such remarks were improper, to constitute reversible error they must have adversely affected the appellant's rights. Raper v. State, 560 P.2d 978 (Okl.Cr.1977). In the recent case of Meggett v. State, 599 P.2d 1110 (Okl.Cr.1979), this Court modified a sentence after finding that the prosecutor's improper closing argument was prejudicial, but, because of the overwhelming evidence of guilt, reversal was not required. In the instant case, there was also overwhelming evidence of guilt in the corroborated testimony of his co-defendants. There was no prejudice in assessing appellant's punishment, as evidenced by the imposition of the minimum sentence. Therefore, the appellant's first assignment of error is without merit.

The appellant argues next that the trial court committed reversible error by admitting over objection State's Exhibit No. 1. The exhibit in question was a color photograph taken of the murder victim at the scene of the homicide. As correctly noted in the appellant's brief, the test for admissibility for allegedly gruesome pictures is whether the probative value of the evidence, as it relates to an issue in the case, outweighs the prejudicial effect. Vierrether v. State, 583 P.2d 1112 (Okl.Cr.1978); Clark v. State, 558 P.2d 674 (Okl.Cr.1977). According to Oxendine v. State, 335 P.2d 940 (Okl.Cr.1958), the principal case on admissibility of gruesome pictures, the evidence must be probative with respect to a fact in issue and that value must outweigh the danger of prejudice, in which event the evidence is admissible even if it is gruesome.

The photograph in the present case was used by the prosecution to show the point of entry of the wounds and position of the body. Specifically, the position of the shirttail, raised, was important in showing that the victim was in a prone position when the fifth bullet was fired, penetrating only the undershirt. This evidence was corroborative of testimony that a co-defendant returned, after being told in the presence of all co-defendants that the decedent was still alive, to administer the final shot. This evidence shows definitively that the intent was to kill and that all the co-defendants, including the appellant, were aware of this. It also tended to show that the crime was merciless and that the co-defendant returned to shoot a man already dying from four bullet wounds. See Hainta v. State, 596 P.2d 906 (Okl.Cr.1979), in which case photographs of an assault victim were held admissible to show the location and extent of the victim's injuries; Bills v. State, 585 P.2d 1366 (Okl.Cr.1978), where color photos of a murder victim were allowed in evidence to corroborate the findings of the pathologist; and Dennis v. State, 556 P.2d 617 (Okl.Cr.1976), in which two color photographs of the deceased were found to be admissible because they showed the point of entry of the bullet.

Furthermore, the admissibility of allegedly gruesome...