Glidewell v. State

• Citation: 663 P.2d 738
• Decision Date: 04 May 1983
• Docket Number: No. F-78-487,F-78-487
• Parties: Robert Earl 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 738

663 P.2d 738

Robert Earl GLIDEWELL, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-78-487.

Court of Criminal Appeals of Oklahoma.

May 4, 1983.

An Appeal from the District Court of Oklahoma County; William Saied, District Judge.

Robert Earl Glidewell, appellant, was convicted of Murder in the First Degree, in Oklahoma County District Court, Case No. CRF-78-521, was sentenced to death, and he appeals. The jury's verdict of guilty is AFFIRMED, and the sentence of death is MODIFIED to a term of life imprisonment, and as so MODIFIED, the judgment and sentence is AFFIRMED.

Robert A. Ravitz, Public Defender, Okl. County, Oklahoma City, for appellant.

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

OPINION

BUSSEY, Presiding Judge:

The appellant, Robert Earl Glidewell, was convicted of Murder in the First Degree, in violation of Laws 1976, 1st Ex.Sess., ch. 1, § 1, now 21 O.S.1981, § 701.7, in Oklahoma County District Court, Case No. CRF-78-521, pursuant to the verdict of the jury he was sentenced to death by a lethal injection, and he has appealed to this Court.

The evidence may be summarized as follows:

On February 1, 1978, a convenience store located at N.W. 27th Street and North Classen Blvd., in Oklahoma City, was robbed, and the clerk on duty, David Devol, was shot to death. Just before 3:00 a.m., that morning, Margaret Hinshaw, an acquaintance of the victim, called him on the telephone at the store. The victim told her that he was scared because Robert Glidewell was hanging around the store, and Dennis Glidewell was driving around the block. Hinshaw testified that the victim gasped over the telephone and a shot rang out. The witness rushed out of her apartment, located a half block from the store, to a vantage point from which she could see the grocery store. She saw a car belonging to Robert Glidewell, a tenant in her apartment complex, parked at the store. She and two other persons walked to the store where the victim's body was found behind the counter, the receiver of the telephone was on the floor near the body. Police were summoned.

Five .22 caliber shell casings and a .22 caliber slug were found near the counter. One cash register was standing open and had been emptied of currency, as was a safe under the counter. Two padlocks used to secure the safe were on the floor, opened and intact. The keys to the safe were on a ledge under the counter, a fact known to Robert Glidewell, who had been employed at the store until seven months prior to the killing.

The cause of death was determined to be gunshot wounds to the chest. Four bullet wounds caused massive hemorrhaging and loss of blood pressure. A fifth wound caused little hemorrhaging and was apparently inflicted while the wounded victim was dying on the floor behind the counter. Two slugs were removed from the body. Police were given the names of Robert Glidewell and Dennis Glidewell, and a description of Robert Glidewell's vehicle, by witness Hinshaw.

At about 5:00 a.m. the morning of the crime, a car matching the description received by the police was stopped by a patrolman near the intersection of N.W. 36th Street and May Avenue, in Oklahoma City. When the driver identified himself as Robert Glidewell, he was arrested, as was his passenger, Kenneth Boutwell. The car was impounded and the two men were transported to the police station.

At the police station, the car was searched: Two .22 caliber bullets were found on the console, registration papers identifying Robert Glidewell as the owner were found in the glove compartment, two hundred seventy-one dollars ($271.00) in cash was stuffed in the springs beneath the car seat on the driver's side, and a .22 caliber semi-automatic rifle was seized from the trunk. Ballistics tests later identified the rifle as the murder weapon. Two days later, two hundred thirty-four dollars ($234.00) in cash was found in the springs beneath the car seat on the passenger's side.

Robert Glidewell was interviewed after his arrest by detectives and gave a written statement. He stated that he, Dennis Glidewell, Charles Moseley and Kenneth Boutwell, decided to rob the store. Moseley warned that no witnesses should be left. Kenneth Boutwell agreed to do the shooting. While the appellant held the door of the store open, Boutwell shot the clerk. The appellant then opened the registers and safe and took the money, which was divided by the four at a drive-in restaurant. They then separated and left in two cars. Moseley and Dennis Glidewell were arrested later that day in Prague, Oklahoma.

Charles Moseley testified on behalf of the State that, after deciding to rob the store, Robert and Dennis Glidewell said that the victim, David Devol, would have to die, since he knew them. Robert Glidewell opened the door to the store, and Boutwell fired at the clerk. Robert went into the store to the counter then rushed out and told Boutwell that the victim was still alive and would have to be shot again. Boutwell returned to the store and shot the victim again as he lay behind the counter. Robert then took money from the cash registers. Moseley also testified as to how the money was divided.

The appellant took the stand in his own behalf and testified that he never expected the victim to be shot. However, he admitted that he discussed with the others the need to kill the victim and heard Boutwell volunteer. He also admitted that, when he saw the victim twitch after being shot, he told Boutwell that the victim was still alive, although he denied telling Boutwell to shoot the victim again.

I.

As his first assignment of error, the appellant contends that six veniremen were excluded for cause in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Four of the veniremen referred to by the appellant (Fields (V.T. 30); McIntire (V.T. 33 and 34); Hopkins (V.T. 95-96); and Crooks (V.T. 115-116)) clearly and unequivocally expressed their inability to impose the death penalty, and were properly excluded under Witherspoon. With respect to the fifth juror, Hare, the appellant argues that the juror did not make "unmistakably clear" his unfitness under Witherspoon. After testifying that he could not agree to a verdict of death without doing violence to his conscience, Mr. Hare was examined as follows:

THE COURT: Alright, if found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree, and if under the evidence, facts and circumstances of the case the law would permit you to consider a sentence of death, are your reservations about the death penalty such that regardless of the law, the facts and the circumstances of the case you would not inflict the death penalty?

MR. HARE: I don't believe in capital punishment, so I think that should cover the whole thing.

THE COURT: Alright, Mr. Hare, you may step down for cause. (V.T. 25).

Read in context, the venireman's position was "unmistakably clear", and he was properly excluded. As for the sixth juror, McNeely, the appellant argues that the prosecutor and trial court went too far in their questioning. The record demonstrates that the juror vacillated in his responses to the questioning, and the district attorney and judge pressed him for a "yes" or "no" answer. The juror finally indicated that he could not consider the death penalty. ¹ The continued inquiry was warranted in view of the juror's hesitant and ambiguous responses. This assignment of error is without merit.

II.

As his second assignment of error, the appellant contends that there is no basis in Oklahoma law for excluding veniremen from the jury whose views on capital punishment preclude them from considering the death penalty. He argues that 22 O.S.1981, § 660, ² authorizes challenge only where the ability to impartially decide guilt, as distinguished from ability to determine sentence, is affected. This Court, from as early as 1921, has held that this ground of challenge encompasses those whose beliefs prevent them from returning a verdict of guilty with the death penalty attached. See, Cardwell v. State, 20 Okl.Cr. 177, 201 P. 817 (1921), construing Section 5859 Revised Laws 1910, the forerunner of Section 660. See also, Gibson v. State, 501 P.2d 891 (Okl.Cr.1972). The Legislature has long acquiesced in this interpretation. This assignment of error is without merit.

III.

Next, the appellant argues that the trial court committed reversible error in admitting State's Exhibit No. 1, a color photograph of the victim lying dead on the floor of the convenience store. As we held in Glidewell v. State, 626 P.2d 1351 (Okl.Cr.1981), this photograph had probative value in that it showed that the victim was in a prone position when the fifth bullet was fired, and was properly admitted into evidence. This assignment of error is without merit. See, Glidewell, supra, and cases cited therein; and, Boutwell v. State, 659 P.2d 322, (Okl.Cr.1983).

IV.

Appellant urges, as his fourth assignment of error, that State's Exhibits No. 15, 18 and 26 were the fruits of an illegal search, and should have been suppressed. (Exhibits No. 15 and 26 are the cash found under the seat in appellant's car, and Exhibit No. 18 (referred to in appellant's brief as No. 29) is the .22 caliber automatic rifle found in the trunk of appellant's car.) He contends that the warrantless search was neither a valid inventory search nor a valid automobile search under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). We do not agree.

In the instant case, the arresting officer, Charles Brown, testified that at approximately 5:00 a.m. on February 1, 1978, he was patrolling near 50th and North May Avenue in Oklahoma City when he received a radio bulletin which directed officers to "be on the look-out" for a suspect or suspects in a 1969 Dodge Charger, brown with a light top, who were wanted in an armed robbery and murder...