Hawkins v. State, F-77-326

• Decision Date: 16 September 1977
• Docket Number: No. F-77-326,F-77-326
• Citation: 569 P.2d 490
• Parties: Fred Charles HAWKINS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 490

569 P.2d 490

Fred Charles HAWKINS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-326.

Court of Criminal Appeals of Oklahoma.

Sept. 16, 1977.

An appeal from the District Court, Muskogee County; Bill Ed Rogers, judge.

R. Jay Cook, Muskogee, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Jerry Earl Benson, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Fred Charles Hawkins, hereinafter referred to as defendant, was charged, tried by a jury, and convicted in the District Court, Muskogee County, Case No. CRF-76-204, for the offense of Robbery With Firearms, in violation of 21 O.S.1971, § 801. Punishment was fixed at five (5) years' imprisonment. From said judgment and sentence, the defendant has perfected his timely appeal to this Court.

In the State's case-in-chief, Jane Ray, a liquor store owner's wife, testified that on March 29, 1976, at approximately 6:00 p.m. she was tending the store for her husband. She noticed an older white car pull up in front of the store with two men inside. Approximately 5 minutes later one of the men came into the store and pointed to something on a shelf, and stated he would take that. When she turned to get the bottle from the shelf, the man pulled a large dark gun and told her to open the cash register. She did this and crouched on the floor behind the counter. After emptying the register, the assailant began cursing the witness, and jerking at her clothes. At this point, another man walked into the store and the assailant ordered him to lie on the floor also. The assailant then turned and ran from the store. On June 30, approximately three months after the robbery, the witness positively identified a photograph of the defendant as the assailant from approximately 10 to 15 other photographs. The witness also identified the defendant in court. However, the witness could not identify the white car or its other occupant.

Cleven Coleman, the individual who came into the store during the robbery was the next witness for the State. He testified that on March 29, he went to the liquor store in question to make a purchase. Upon entering, he encountered a man inside holding a gun who told him to lie on the floor or he would, "fill him full of holes." The witness identified State's Exhibit No. 1, as appearing to be like the gun the assailant held in his hand during the robbery. Following the robbery, the witness was shown several photos but could not positively identify any of them. However, approximately a month later, the witness did identify a photograph of the defendant as the robbery assailant. The witness also identified, but not positively, the defendant in court. This witness, as well as Ms. Ray, stated that the assailant was clean shaven and did not have very long hair at the time of the robbery.

Kelly Oliver, an undercover informant for the Muskogee County District Attorney's Office was then called to testify. She stated that she had continuous contact with the defendant during March and April of 1976, as he was an object of investigation. She identified the defendant in court as the person from whom she bought a Browning 9 m.m. automatic on April 5, 1976. This weapon, marked as State's Exhibit No. 1, was identified by the witness as the one she purchased from the defendant on that date. She paid the defendant $100.00 for the weapon. The witness related that she did not know where or when the defendant procured this weapon. She further stated that during March and early April, the defendant was clean shaven and had moderate length hair, which did not completely cover his ears.

Jay Clinton, Lieutenant for the Muskogee Police Department, testified that he conducted the photographic identification of the defendant by the victim, Ms. Ray. On June 30, he showed Ms. Ray several photographs and he observed her pick out the defendant as her assailant. Following this testimony, the State rested its case. Defendant's motion for directed verdict of acquittal and motion for a mistrial were overruled at that time.

The first witness for the defendant was John Garrett, an attorney in Muskogee. He testified that he was to defend the defendant on a Grand Larceny charge which came on for preliminary hearing on March 30th. On the prior evening, March 29th, at approximately 5:30 or 6:00 p.m., the defendant was at the witness' office in Muskogee to discuss the case for approximately 30 to 45 minutes. The witness stated that a Mr. Bob Tracy, the defendant's brother-in-law, picked the defendant up after the meeting on that evening. On cross-examination, Mr. Garrett testified that he knew the defendant to be driving an older white car during that period, but he was not driving it on the evening of the 29th when he arrived at his office. The witness also testified that on March 29th the defendant had a mustache and long bushy hair.

Lola Tracy, the defendant's sister, was next called to testify. She stated that on March 29th, the defendant called her to get a ride to Mr. Garrett's office at approximately 4:30. However, as she was busy at the time, she told him to call her husband for a ride. The witness, at no time on March 29th saw the defendant, nor did she know what had happened to his car. She also could not testify to whether he had a mustache or long hair on that date.

Robert Tracy, the defendant's brother-in-law, then testified that the defendant called him at approximately 5:00 p. m. on March 29th to get a ride to Mr. Garrett's office. The witness picked the defendant up and took him to the "co-op" where Mr. Tracy worked. Upon arrival, the witness saw the defendant walk across the street from the co-op to Mr. Garrett's office. After the witness had completed his work at approximately 6:30 or 7:00 p. m., he picked the defendant up at Mr. Garrett's office and took him to his mother's house. On cross-examination the witness stated that the defendant had...