Hogan v. State

• Decision Date: 09 January 1975
• Docket Number: No. F--74--413,F--74--413
• Citation: 530 P.2d 1026
• Parties: Donald D. HOGAN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1026

530 P.2d 1026

Donald D. HOGAN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--74--413.

Court of Criminal Appeals of Oklahoma.

Jan. 9, 1975.

Rehearing Denied Jan. 27, 1975.

Roehm A. West, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Patrick H. Kernan, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

This is an appeal from the District Court, Ottawa County, Case No. CRF--72--688, where Donald Dee Hogan, hereinafter referred to as defendant, was charged, tried and convicted for the crime of Perjury, in violation of 21 O.S.1971, § 491. He was sentenced to serve a term of three (3) years imprisonment and a timely appeal has been perfected to this Court.

The State's first witness at trial was G. C. Freeman. Both parties stipulated that Mr. Freeman was a competent and qualified court reporter and that he took the notes and memos in the Ottawa County Grand Jury proceedings of November 28, 1972. Mr. Freeman identified certain transcript pages of the testimony before the Grand Jury on that date and he confirmed these pages were unaltered and were exactly as he had typed them. The trial court then read certain excerpts from these pages which contained testimony of the defendant before the Grand Jury on November 28, 1972, and Mr. Freeman identified the defendant as the same person who had given this testimony on that date.

Joe Chandler testified that he was the Foreman of the Ottawa County Grand Jury on November 28, 1972. He stated that on that date he swore in the defendant as a witness in the investigation of the alleged robbery of Billie Mendenhall and that he was present when the defendant was advised of his rights and warned against perjury. The defendant stipulated that Mr. Chandler could verify the fact that he was present when the defendant gave his testimony, which had been read from earlier by the trial court, before the Grand Jury.

Carl Craig testified that on or about August 21, 1972, he committed an armed robbery upon Billie Mendenhall. He stated that prior to the robbery he was employed as the defendant's bodyguard. He further stated that the defendant had helped him plan the robbery because the defendant had a grudge against Billie Mendenhall. He testified that after the robbery the defendant drove him to Oronogo, Missouri, whereafter he later went to Arkansas where he caught a plane for Los Angeles, California. He remained there until he was extradited to Oklahoma on December 27, 1972. He further testified that on September 1, 1972, he placed a long distance person-to-person collect call from Hollywood, California, to the defendant at the defendant's club in Miami, Oklahoma. He said he used the name of Billy Rambo in making the call and that both he and the defendant were familiar with the fact that he had called himself by that name in the past. He stated there was no doubt in his mind that the person with whom he talked that day was the defendant because having worked for the defendant, he was familiar with the defendant's voice. He related the conversation he had with the defendant and that a few days after this phone call he was arrested by the California authorities.

The State's next witness was Gary Golden. The defendant stipulated that Mr. Golden was employed at Southwestern Bell Telephone Company and that there were certain records under his complete custody and control. The witness identified the Xerox copy of the company toll ticket which indicated that on September 1, from a prefix number 446, a person- to-person collect call was made from a Billy Rambo to a party with the last name of Hogan, at the number 918--542--4168. He then identified a long distance phone statement which showed that on September 1, a call was made from a Los Angeles, California, prefix number 466 to 542--9150 in Miami, Oklahoma, and that this call was billed to 542--4168 in Miami, Oklahoma. He further testified that the call was made to the defendant's night club and that the number to which the call was billed was listed in the defendant's name.

The defendant then requested a 'Denno proceeding' ¹ which thereafter was had outside the presence of the jury on the admissibility of certain statements the defendant made during an interrogation session with the District Attorney's office. The trial court ruled that the rights of the defendant had not been violated and thus ordered the trial to proceed.

Robert S. Gee testified that he was the Acting District Attorney of Ottawa County from August 1972 until late March of 1973. He said that he was present in the Grand Jury proceedings on November 28, 1972, when the defendant testified and that he was the individual who examined the defendant at that time. He testified that the defendant was under oath and was advised of his rights. He further stated that while the defendant was under oath before the Grand Jury the defendant testified that he had not talked by telephone with Carl Craig. He further stated that he was present when the defendant was arrested and brought into the District Attorney's office on December 28, 1972, at approximately 8:00 P.M. He stated that before the defendant was interrogated he advised the defendant of his constitutional rights and that the defendant understood those rights. He testified to the conversation during the interrogation and that during this conversation the defendant admitted lying to the Grand Jury about not talking to Carl Craig and that the defendant stated he lied to the Grand Jury in order to protect Carl Craig.

Floyd Ingram testified that he was employed as a Deputy Sheriff of Ottawa County on December 27, 1972. He stated that he participated in the arrest of the defendant and that subsequent to the arrest, he was present in the District Attorney's office during the interrogation of the defendant. He testified to essentially the same facts relating to the interrogation as did the previous witness, Bob Gee.

The defense called Goldie Goodrich to testify. She stated that in August of 1972, she worked at the defendant's club. She further testified that on August 21, 1972, the day Billie Mendenhall was robbed, upon opening the defendant's club for business that day she discovered the back room looked as though someone had broken in through the ceiling. She said she called the defendant and he came over and worked on the ceiling. She further testified that while he was there he said something about going to Joplin, Missouri.

Travis McSpadden next testified he was employed as an inspector with the Oklahoma Tax Commission and had been for approximately the past nine years. He stated that on August 21, 1972, he visited with the defendant at a Fina Station on Highway 10. He stated that he had a short friendly conversation with the defendant and that he did not recall the defendant's car nor anyone being with the defendant.

Denver Miller testified he was employed at the defendant's club as a bartender and was so employed in August and September of 1972. He stated that his hours at the club during August and September of 1972 were from 7:00 P.M. until 2:00 A.M. He testified that on or about September 1, 1972, the defendant's club had two telephones, a pay phone and a private line in the office. He stated that in early September, 1972, while on duty at the defendant's club, he received a long distance call from California. He stated the operator said the call was for the defendant and he told the operator the defendant was not there; the operator asked if he would accept the call, to which he agreed, but he told the operator to charge the call to the office phone. He stated he charged the call to the office phone because otherwise he would have to take money out of the register and this would cause him to come up short. He further testified that at the time of the call the defendant was at the Elks Lodge. He said that subsequent to receiving the call, he called the Lodge and told a Carl Lacy to relay to the defendant that he had accepted the said call. He testified the defendant returned to the club approximately an hour later.

Carl Lacy testified he was the manager of the Miami Elks Lodge and had been for the past 13 years. He said that the Lodge had bingo games on the first Friday of every month and that on September 1, 1972, the defendant and defendant's wife attended the bingo game. He further testified that sometime that night he received a call from Denny (Denver Miller) who asked him to relay a message to the defendant that he (Denny) had accepted a call for the defendant at defendant's club.

The defendant testified in his own behalf. He stated that he was the owner of the Twilight Club in Miami, Oklahoma. He testified that some two weeks prior to August 21, 1972, he employed Carl Craig as his bodyguard because of threats of harm to his club and because he had been burned out twice before. He related the following facts which occurred on August 21, 1972. Carl Craig asked him if he could borrow a Volkswagon, to which the defendant agreed. At this time the defendant told Craig he was going to Joplin that day. Later, Goldie called him about the ceiling in the club and he went over to work on it. Later that day while on the way to Joplin to pick up some supplies with his wife he saw the tax man at the Fina station on Highway 10. In Joplin he called the Sheriff's office in Miami after having talked on the phone to Goldie, who was at the defendant's club, and she told the defendant that the authorities had been to the club looking for Carl Craig. He further testified regarding his being at Bob Gee's office in December after being arrested for armed robbery. He said that while in that office with Butch Garrette, Floyd Ingram, Bob Gee and Newman, there was a knock at the door. He said that he saw a Fred Phillips at the door and, thereafter, after having a certain conversation with Butch Garrette, he denied wanting Phillips as his lawyer. He further stated he never...