Hays v. State

• Decision Date: 28 August 1980
• Docket Number: No. F-77-555,F-77-555
• Parties: Thomas Lee HAYS, a/k/a Sonny Hays, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 223

617 P.2d 223

Thomas Lee HAYS, a/k/a Sonny Hays, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-555.

Court of Criminal Appeals of Oklahoma.

Aug. 28, 1980.

Rehearing Denied Oct. 2, 1980.

An appeal from the District Court, Muskogee County; William H. Bliss, judge.

Thomas Lee Hays, also known as Sonny Hays, appellant, was convicted of the offense of Murder in the First Degree; was sentenced to death and appeals. AFFIRMED.

Bill Settle, Settle & Landrum, Muskogee, for appellant.

Larry Derryberry, Atty. Gen., Ross N. Lillard, III, Asst. Atty. Gen., Jan Eric Cartwright, Atty. Gen., David W. Lee, Asst. Atty. Gen., Susan M. Otto, Legal Intern, for appellee.

OPINION

CORNISH, Presiding Judge:

Thomas Lee Hays, also known as Sonny Hays, was convicted of the offense of Murder in the First Degree in Muskogee County District Court, Case No. CRF-77-91. In the second stage of the trial, pursuant to Laws 1976, 1st Ex.Sess., Ch. 1, § 7, now 21 O.S.Supp.1979, § 701.10, et seq., the jury assessed the death penalty.

Laws 1976, 1st Ex.Sess., Ch. 1, § 7, now 21 O.S.Supp.1979, § 701.13, requires a review of the propriety of each death sentence imposed in Oklahoma. Although this review is in addition to any direct appeal by the appellant sentenced to death, this Court has consolidated both. Section 701.13 also provides for oral argument and submission of briefs by both the appellant and the State. Oral argument was held on November 14, 1979. At that time, both parties were granted permission to file supplemental briefs which have now been filed and made a part of the record herein. We have also examined the report of the trial judge and the exceptions filed thereto.

All of the evidence presented at trial was introduced by the State. The appellant exercised his constitutional right to remain silent and presented no evidence in his behalf.

On March 9, 1977, the victim of this crime, Everett Leonard Vance, was operating his shoe store at 107 West Broadway in Muskogee, Oklahoma. During the afternoon, the victim's parents stopped by the shop, leaving at approximately 4:55 p. m. About 5:10 p. m., Everett Vance called his wife at home and told her that he was planning to work late.

At about the same time the victim was calling his wife, Faye Bramlett encountered the appellant at the nearby intersection of Cherokee and Broadway. Following a brief discussion with Ms. Bramlett, the appellant proceeded south on Cherokee. The testimony of Mary Ann Dodson and Virginia Smith placed the appellant at the entrance of the Brass Rail Club at approximately 5:15 p. m., where he was apparently denied admittance. The location of the Brass Rail Club is approximately 180 feet from Everett Vance's shoe store.

The State's evidence again placed the appellant at the intersection of Cherokee and Broadway at 5:30 p. m. Appearing to be intoxicated and carrying a brown paper sack, the appellant staggered across the intersection in front of a car. Some teenagers in a car verbally taunted the appellant as he crossed the street in front of them. He then reached into the sack, pulled out a revolver, and pointed it at the boys. In an effort to leave the scene, the boys' car ran a red light and sped away.

The appellant's actions aroused the suspicions of Officer Ron Garrett, so he followed the appellant as he left the intersection. As the officer was maneuvering his patrol unit in an effort to head off the appellant, the appellant crossed the lot along the north side of a service station owned by Robert Edge. Mr. Edge was watching out the window of his station as the appellant took a black object from the sack he was carrying, tossed it into the bed of a truck parked on the station lot, and continued on his way. Officer Garrett apprehended the appellant a short distance away and arrested him on a public drunk charge. When arrested, the appellant was in possession of a brown paper sack containing a pair of old cowboy boots and $110.00 in loose bills.

After viewing the appellant's arrest, Robert Edge approached Officer Garrett and his backup patrolman and told them what he had seen. When the officers searched the bed of the truck indicated by Mr. Edge, they recovered a .38 caliber Llama revolver in a black holster. In the pistol the officers found one empty chamber, two spent cartridges, and three live rounds.

The appellant was taken to jail and booked on a public drunk charge. When his personal property was inventoried at the jail, he had $12.41, two different packages of cigarettes and two lighters.

At 7:30 p. m. Mrs. Vance and her daughter went to the shoe store because Mr. Vance had not answered the telephone, nor had he turned off the lights in the front part of the store, as was usual when he closed the shop at 5:30 p. m. They entered through the unlocked door of the store and discovered him lying in a pool of blood. There were two bullet wounds in the victim's head. An autopsy performed on the deceased indicated that the fatal bullet had entered the right side of the victim's head below the ear and lodged inside the right side of the brain. A second bullet had entered the left side of the head just below the ear.

As a preliminary investigation at the murder scene progressed, suspicion focused on the appellant. Approximately one hour after the discovery of the murder, one of the officers returned to the scene of the appellant's arrest. In the top of a trash can located approximately 20 feet from the truck where the pistol was found, the officers discovered two more pairs of boots which still had price tags on them. As a result of this preliminary investigation, first degree murder charges were filed against the appellant the following day.

I

In the first of five allegations of error, the appellant asserts the trial court improperly admitted State's Exhibits No. 1, 2, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18, and 19. ¹ The basis of this contention is that the State did not properly establish a chain of custody for these exhibits. Consequently, the appellant argues there was a possibility for abuse and tampering with the evidence.

The record indicates that State's Exhibits No. 1, 5, 6, 7, 10, 11, 12 and 13 were either in the sack the appellant was carrying or on his person at the time of his arrest. When he was subsequently booked into jail on the misdemeanor charge, these items were taken from him and placed in envelopes for storage in the property room. Several hours later, when the appellant had become the focus of suspicion in the homicide case, the arresting officer returned to the station to inventory and mark these items as potential evidence in the homicide investigation. The items were then stored in the evidence room of the Muskogee Police Department.

Exhibits No. 2, 8 and 9 were removed from the bed of a truck which was parked on the lot of Robert Edge's service station. They were then given to Lieutenant Carter, who transported them to the police station, where he turned them over to Major Bounds. Because the evidence room was locked and the Major did not have access to it, he locked these exhibits in his office overnight. The next morning he checked the items into the evidence room. That same day, March 10, l977, Detective Summers took these exhibits to the Oklahoma State Bureau of Investigation for examination. These items were received by the OSBI firearms and toolmark examiner, Tom Jordan, who conducted ballistics comparisons on them. All of these exhibits remained in his custody until the preliminary hearing. No testimony was introduced concerning the transportation or storage of Exhibit No. 14.

Exhibits No. 18 and l9 were removed from the head of the homicide victim during autopsy at the Muskogee General Hospital by Dr. William P. Chamberlain, the attending pathologist. He personally marked the slugs, placed them in labeled containers, and gave them to Mr. Gary Sturm, an investigator for the District Attorney's Office. Mr. Sturm, who was present at the autopsy, then turned the containers over to Detective Summers, who took them to the OSBI Crime Laboratory for analysis. These exhibits, like Exhibits No. 2, 8, and 9, were also in the custody of Mr. Jordan until the time of the preliminary hearing.

In regard to establishing chain of custody, it is the general rule in this jurisdiction that the party who offers demonstrative evidence must show, to the satisfaction of the trial judge, that the circumstances of its custody provide reasonable certainty that there has been no alteration of or tampering with that evidence. Hauschildt v. State, Okl.Cr., 554 P.2d 77 (l976). However, we have made it clear that this burden does not require that all possibility of alteration, however slight, must be negated by the party offering the evidence. Trantham v. State, Okl.Cr., 508 P.2d 1104 (l973). Once it has been shown to the court that the evidence was preserved under circumstances reasonably certain to maintain its integrity, it is proper for the trial judge to admit the evidence and let what doubt there may be go to its weight. Hauschildt v. State, supra.

Admittedly, in this case, the prosecutors could have made a greater effort to elicit more complete testimony concerning the chain of custody of the exhibits in question. However, the State did establish that Exhibits No. 1, 5, 6, 7, 10, 11, 12 and 13 were taken from the possession of the appellant, placed in the jail property room, and then stored in the police evidence room. All of these exhibits were sufficiently labeled and/or identified by the persons dealing with them. Possession of Exhibits No. 2, 8 and 9 passed from the officer who found them to the officer who stored them overnight in his office and then to the detective who transported them to the crime laboratory for analysis. Exhibits No. 18 and l9 also came to the same crime laboratory after being removed from the deceased by the attending pathologist. He had given them to the investigator from the District...