Hammons v. State

• Decision Date: 28 February 1977
• Docket Number: No. F--75--508,F--75--508
• Citation: 1977 OK CR 70,560 P.2d 1024
• Parties: William Yuvvine HAMMONS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1024

560 P.2d 1024

William Yuvvine HAMMONS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--508.

Court of Criminal Appeals of Oklahoma.

Feb. 28, 1977.

Rehearing Denied March 16, 1977.

Appeal from the District Court, Comanche County; James B. Martin, Judge.

William Yuvvine Hammons, appellant, was convicted of the offense of Murder in the First Degree; was sentenced to death John M. Johnston, Linn, Helms, Kirk & Burkett, Oklahoma City, for appellant.

and appeals. Judgment and sentence MODIFIED to Life imprisonment, and as so modified is AFFIRMED.

Larry Derryberry, Atty. Gen., Frank Muret, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Judge:

Appellant, William Yuvvine Hammons, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Pittsburg County, Case No. F--75--116, for the offense of Murder in the First Degree, in violation of 21 O.S.Supp.1973, § 701.1. His punishment was fixed at death by electrocution in accordance with the statute. From said judgment and sentence, an appeal has been filed with this Court.

From the testimony and evidence presented at trial, the State's case was as follows. The defendant, a slender black male approximately six feet tall, was living in Oklahoma City with Foye Reed and her four children in the early part of 1975. On one occasion in March, 1975, the defendant had driven Reed and her children to McAlester in his reddish-orange Dodge Charger to visit relatives of the defendant. During this visit the defendant had Reed drive him around McAlester so that he could check the security systems of various stores. The defendant also asked Reed to assist him in the robbery of a Safeway Store, but she refused. The defendant told her that when he committed a robbery he used Band-aids to cover the scars on his face.

After their return to Oklahoma City, the defendant had Reed buy .38 caliber bullets from a Gibson's store. Reed paid $7.07 for .38 shorts, even though the defendant had specified .38 longs. Reed did not see the defendant load the gun, a silver Smith and Wesson with a barrel approximately four inches long, which he frequently kept in the console of his car.

On May 13, 1975, Alice Lake, a clerk at the Grand Market Discount Grocery on Carl Albert Street in McAlester, saw the defendant with tape strips covering his face enter the store at approximately 8:40 p.m. Joye Darken, a customer in the store, was approaching a checkout stand when she heard loud footsteps behind her. She turned and saw the defendant. He passed her, went to the checkout stand and pulled a gun, matching the description of the Smith and Wesson which Reed had seen, on Lake and Pauline Harris, wife of the store manager. Upon defendant's demand, Mrs. Harris put the money from the cash register into a paper sack, which she gave to the defendant. After Mrs. Harris showed him that the other cash registers were empty, the defendant forced the three women, at gunpoint, to the store office at the rear of the store.

The defendant ordered Mrs. Harris to unlock the office door, but she told him she did not work at the store or have any keys to it. She suggested that the manager had the keys. The defendant told her, 'Lady, you are dead if you don't find me the keys.' The defendant had an unknown substance in his mouth, covering his teeth which kept slippig and made it difficult for the women to understand him. When Mrs. Darken pointed this out to the defendant, he pointed the gun at her and told her to 'cool it.' He told the women that he was going to take them to the store basement and kill them, that he had killed a man already and told them they were dead and he was going to kill them.

The women were forced by the defendant down into the basement, where they saw Leroy Harris, the store manager, lying in a pool of blood with his arms at his sides. According to the witness' testimony, Darken saw a bloody spot in the victim's shirt and a hole in the cloth. The defendant made Lake and Darken stand by the victim's head while he kept his gun on Mrs. Harris and ordered her to search her husband's body for the keys, which she found.

The group then returned upstairs to the office, but Mrs. Harris, nearly fainting, could not get the door unlocked. The defendant pointed the gun at her and said, '(You are) dead, I'll kill you.'

The defendant forced two male customers, whom he had noticed in the aisles of the store, and the three women back into the basement room. While Mrs. Harris searched her husband's body for more keys, the defendant felt the victim's neck and said, 'He is dead, I shot him, this man's dead.' He also took from the male customers the money in their billfolds.

On returning to the office upstairs, Kim Allen Sveiven, one of the male prisoners, took the second set of keys from Mrs. Harris and unlocked the door. While Mrs. Harris was attempting to find the key to unlock the office safe, the defendant ordered a third male customer and two children, a boy and a girl, into the office with his other prisoners. The boy offered the defendant a $5.00 bill, but the defendant refused it, saying that he did not kill children. The defendant pointed his weapon at each of the adults in the office. One male prisoner suggested that he try the keys on the safe because Mrs. Harris had nearly fainted. The defendant agreed, but when the safe still could not be opened, he demanded the keys, threatening to kill the group. Darken fell to her knees and began praying for the defendant, who pointed his gun at her and said, 'You do that, lady, you do that.' The defendant then fled the office, locking the prisoners inside.

Johnny Harden testified that he saw the defendant, wearing a stocking cap and carrying something, run from an alley near the grocery store, get into a white over orange Dodge Charger with a stripe around the rear section, and drive away at a high rate of speed, running a stop sign.

On Highway 270, approximately five miles west of McAlester, the defendant got stuck near the home of Freddie Sanders, who watched the defendant for a period of more than thirty minutes attempt to free his vehicle. Around midnight, the defendant went to the home of Homer Trout and asked to use Trout's telephone. Since Trout's telephone was out of order, he drove the defendant to the McAlester bus station.

The next morning defendant went to a salvage and wrecker service operated by Warner Scott, and together they went in search of defendant's car in Scott's wrecker truck. When they arrived at the location where the vehicle was stuck, the police arrested the defendant. The defendant subsequently gave the police permission to search his car. Among the items produced during the search was an end flap to an ammunition box, which read .38 S & W 146 grain lead and which had a price tag showing that it had come from Gibson's and had cost $7.07. The Oklahoma State Bureau of Investigation traced the flap to the Gibson's store in Oklahoma City and, eventually, to Foye Reed.

Dr. Merlin Bellamy, a physician specializing in pathology, examined the body of Leroy Harris, and determined the cause of death to have been a single gunshot wound from which he recovered the bullet. A firearms expert of the OSBI identified the bullet as a .38 S & W 146 grain lead bullet.

At trial, the defense established that the fatal shot was fired at close range, that a .38 pistol found at the home of the defendant's brother-in-law had not fired the fatal bullet, and that no test had been conducted to determine if the fatal shot could have been heard in the main portion of the store above the music system and other mechanical noises. In addition, a medical examination of the defendant's face and mouth revealed no traces of any foreign substances.

Defendant's first assignment of error is that the participation of a special prosecutor, employed by the widow of the victim, was prejudicial to the defendant's rights. James E. Gotcher, a McAlester attorney, had been the consulting attorney of Leroy and Pauline Harris for a number of years. During an in camera hearing prior to trial, Gotcher testified that he had been hired by Mrs. Harris, 'to prosecute this case, look after her interests in this case; and assist the District Attorney in the prosecution as Special Prosecutor.' He testified that his fee, which he had already been paid, was fixed and did not depend upon the outcome of the trial. The defense extensively examined Gotcher as to the insurance claims which other members of his firm were handling for Mrs. Harris, in relation to her husband's death. Gotcher stated that his firm was not handling the matter on a contingency basis and that regardless of the amount which Mrs. Harris received on the insurance policies she would be charged only a 'fee for mailing, for filling out applications for proceeds. If she gets $1.00 from an insurance company or gets one million dollars, it makes absolutely no difference what I charge her. . . . I am charging for office work and if this man is convicted, it will be the same fee. If he is acquitted, it will be the same fee; or if someone proves it was self-inflicted, it will be the same fee . . ..' (Tr. 21) Based upon testimony, the trial court determined that Gotcher did not have a pecuniary interest which would require his exclusion from the trial as a special prosecutor under this Court's holding in Born v. State, Okl.Cr., 397 P.2d 924 (1964).

Counsel for the defendant argues that the trial court failed to take into consideration the pecuniary interest of the special prosecutor's client. Instead of citing evidence to support his position, counsel poses a hypothetical situation which finds little support in the record before this Court. He asks this Court to assume that...