Glover v. State, F--76--278

Decision Date30 November 1976
Docket NumberNo. F--76--278,F--76--278
Citation557 P.2d 922
PartiesMichael Leroy GLOVER, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BLISS, Judge:

Appellant, Michael Leroy Glover, hereinafter referred to as defendant, was charged in the District Court, Osage County, Case No CRF--74--838, with the offense of Murder in the First Degree, in violation of 21 O.S.Supp.1973, § 701.1. He was tried by a jury and convicted of Manslaughter in the First Degree, with punishment being set at One Hundred One (101) years' imprisonment. From said judgment and sentence he has perfected his timely appeal to this Court.

The incidents out of which the charge arose took place in December, 1974. The defendant returned to Tulsa from a two-month business trip in Wisconsin on the 9th of December, 1974. On the 11th, he and Karen Sue Keene, with whom he was living, went out to do some Christmas shopping. They stopped at the home of Johnny and Ruby Glover, a brother and sister-in-law of the defendant, to visit for awhile and to leave their two children, Shawn Doyle Keene, 22 months old, and Michael Leroy Glover, Jr., three months old, to go shopping. By the time they had finished shopping, stopped at Johnny Glover's house for the children, and returned home it was dusk. The testimony as to what happened next is conflicting, but it is uncontradicted that at about 9:30 or 10:00 p.m. Karen Sue Keene called Johnny and Ruby and asked Ruby to come over, saying that 'something had happened to Shawn.' Then the defendant got on the phone and told Johnny to come over. When Johnny and Ruby got to the defendant's house, Johnny went inside and found Shawn lying on a pallet in the middle of the living room floor with a bluish cast to his skin and lips. He told Karen and the defendant to take the baby to a hospital. Several of the personnel at the Oklahoma Osteopathic Hospital of Tulsa, including Dr. Stanley E. Grogg who was on call at the emergency room, testified that Karen Sue Keene brought the baby into the hospital in a battered condition with bruises on the face, legs and trunk, an almost healed burn on the left hand and second degree burns on the buttocks. The child died December 16, and Dr. Robert Fogel, a pathologist, testified that in addition to the external injuries there was hemorrhaging on the lungs, a laceration of the pancreas which had led to pancreatitis, a fractured skull and hemorrhaging within the tissue of the brain.

Without going into sordid detail, Karen Sue Keene testified that the defendant became upset with Shawn and began striking him; and that he went on to inflict numerous injuries on the baby until he realized that the child was unconscious. Ms. Keene testified that at this point the defendant became frightened and the two of them began attempting to revive the baby. She wanted to go for help, but the defendant refused until finally he told her to call his brother, Johnny.

The defendant's version of the episode was markedly different. He testified that when they returned home from shopping he made a sandwich and sat down to watch television, but that he was tired from the drive back from Wisconsin only two days before and fell asleep. He was awakened later by Karen Sue Keene running into the living room with the inert Shawn, crying that the baby had fallen into the bathtub. After futile efforts to revive the baby he told Karen to call his brother, Johnny Glover.) He admitted that Johnny and Ruby Glover had to pass by the hospital on their way to his house, and when asked why he had not taken the baby to the hospital on his own initiative could only say that he was not thinking straight at the time. He also admitted that he did not go into the hospital with Karen Keene, but went to Johnny and Ruby's house instead and called the hospital from there. (He said that Karen told him not to go in, but Karen said he told her to go in by herself.) He also admitted that he did not call the hospital again, and that he left town and went to Joplin, Missouri, a few days later knowing that the baby was in critical condition.

Ms. Betty Johnson, a former acquaintance of the defendant and Karen Sue Keene when they had lived in Galena, Kansas, testified that she encountered the defendant on December 15, 1974, in Joplin, Missouri, and that he said at that time he had not seen Karen and Shawn in a long time and as far as he knew they were in California (from whence Ms. Keene had come). The Oklahoma officers who transported the defendant back to Oklahoma after his apprehension in Joplin, Missouri, Officer Bill Mitchell and Officer Larry Johnson, testified that the defendant at first denied knowing Karen and Shawn but that after a search of his car (to which he had consented in writing) had turned up receipts indicating that he and Ms. Keene lived at the same residence, he admitted that he knew her slightly--that he had mowed her lawn a couple of times. The officers admitted on cross-examination that while they had obtained signed consents for extradition and search of the car, they had not obtained a signed waiver of the Miranda rights. They testified that the defendant made the remarks voluntarily, but the defendant denied making any statements at all and claimed that he had repeatedly refused to say anything without his attorney present.

At first the defendant and Karen Sue Keene were both charged with the crime and while they were in jail she sent him a number of letters which tended to exculpate the defendant and inculpate Ms. Keene. The defendant gave these letters to his attorney, and they were not brought out at the trial of Ms. Keene, which came before that of the defendant.

The defendant's first assignment of error is that the prosecuting attorney was allowed to cross-examine the defendant as to his silence regarding these letters at the time of Karen Keene's trial. However, a reading of the full transcript shows that no reversible error was committed. The letters were first put in evidence by the prosecution while Ms. Keene was on the stand with the expressed consent of the defense. She read the letters into the record, and testified that they had not been brought out at her trial. Then, when the defendant began his case in chief, his attorney took the stand as the first witness and testified, among other things, that the defendant had given him the letters upon being released from jail, but that at the time he had been attorney for both the defendant and Ms. Keene, and he had deemed it necessary under attorney-client privilege to keep the letters and to not turn them over to the District Attorney when Ms. Keene was tried. Finally, when the defendant took the stand in his own behalf he made no mention of the letters whatsoever on direct testimony, but the District Attorney brought them up on cross-examination, and asked him why he had not given them to the District Attorney's Office before the trial of Ms. Keene. The defendant's answer was simply that he had turned them over to his attorney and that he did not know what the attorney had done with them; that he left all decisions concerning the case to his attorney. It is our opinion that it was not error to question the defendant as to the letters, since his attorney had as a witness raised the subject earlier in putting on the defendant's case in chief. However, even if it had been error it would not have been prejudicial to the defendant since he was able to give a rational explanation for his failure to mention the subject to the District Attorney before Karen Keene's trial.

The defendant's second assignment of error is that he was denied his constitutional right to a speedy trial due to the procrastination of the District Attorney during the preliminary hearing. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States...

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4 cases
  • Renfro v. State, F-77-332
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 21, 1980
    ...there may be sharp conflicts in the evidence. See, for instance, Sadler v. State, 84 Okl.Cr. 97, 179 P.2d 479 (1947), and Glover v. State, Okl.Cr., 557 P.2d 922 (1976). When the sufficiency of the evidence presented at trial is challenged on appeal, as it is here, the proper test is whether......
  • Simpson v. State, F-80-769
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • March 12, 1982
    ...last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. See, Glover v. State, 557 P.2d 922 (Okl.Cr.1976); Bauhaus v. State, 532 P.2d 434 (Okl.Cr.1975). Also, the Supreme Court emphasized that Barker v. Wingo does not require an affi......
  • Winrow v. State, F-81-382
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 8, 1982
    ...even though there may be sharp conflicts in the evidence. See, Sadler v. State, 84 Okl.Cr. 97, 179 P.2d 479 (1947); and Glover v. State, 557 P.2d 922 (Okl.Cr.1976).When the sufficiency of the evidence presented at trial is challenged on appeal, the proper test is whether a prima facie case ......
  • Sykes v. State, F-77-1
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 31, 1977
    ...a balancing test to be used in evaluating speedy trial claims. See Bauhaus v. State, Okl.Cr., 532 P.2d 434 (1975); and Glover v. State, Okl.Cr., 557 P.2d 922 (1976). The record establishes that the defendant was initially charged on May 16, 1975, and that his trial ultimately commenced on M......

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