Howard v. State

• Decision Date: 04 March 1977
• Docket Number: Nos. F--76--508 and F--76--509,s. F--76--508 and F--76--509
• Citation: 561 P.2d 125
• Parties: Robert HOWARD and Carolyn Ann Roe, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 125

561 P.2d 125

Robert HOWARD and Carolyn Ann Roe, Appellants, v. The STATE of Oklahoma, Appellee.

Nos. F--76--508 and F--76--509.

Court of Criminal Appeals of Oklahoma.

March 4, 1977.

Rehearing Denied March 23, 1977.

Don Anderson, Public Defender, Oklahoma County, for appellant Howard.

Jack L. Freeman, Oklahoma City, for appellant Roe.

Larry Derryberry, Atty. Gen., Douglas L. Combs, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Judge:

Appellants, Robert Howard and Carolyn Ann Roe, hereinafter referred to as defendant Howard and defendant Roe, were jointly charged, tried and convicted in the District Court, Oklahoma County, Case No. CRF--75--1146, for the offense of Robbery With Firearms, in violation of 21 O.S.Supp.1974, § 801. The jury returned a verdict fixing the punishment of defendant Howard, who has two previous felony convictions, at fifty (50) years' imprisonment; and, the punishment of defendant Roe at ten (10) years' imprisonment. From said judgments and sentences each defendant has filed an appeal with this Court. Since the single assignment of error raised by defendant Howard is identical with one of the three assignments of error raised by defendant Roe, we have consolidated the two appeals for consideration here.

At trial the State introduced evidence to show that during the first week of March, 1975, Harold Hiawatha Stokes, who had a previous felony conviction for receiving stolen property, and an individual identified as Jim Cook (who was not a participant in the case at bar) discussed robbing several individuals, including William Strother. These discussions took place in the home of Johnny W. Ketchum, with whom they were living while in Oklahoma City and who was present during the discussions. The robbery plan involved the participation of a black man and a white woman, acquaintances of Stokes not present during the discussions, according to Ketchum's testimony.

On March 4, 1975, Stokes and Cook left Ketchum's house in the early evening. They drove to an address on Walker Avenue and picked up defendant Roe and a black man, identified by Stokes as defendant Howard. The group drove to the home of William Benjamin Strother, 125 S.W. 62nd Street, Oklahoma City, where Cook, defendant Roe and the black man got out of the car, at approximately 9:30 p.m.

Defendant Roe rang the doorbell while Cook and the black man put on ski masks and hid in the shadows by the porch. Mrs. Carol Ann Strother, who was inside with her nine-year-old son and two-week-old daughter, answered the door. Defendant Roe told Mrs. Strother that someone was trying to hurt her and asked if she could use the telephone. As defendant Roe entered the house, Cook and the black man shoved her to one side and rushed into the living room. Cook grabbed Mrs. Strother, pointed a gun at her, forced her to lie on the floor and told her she was being robbed. The black man held Mrs. Strother's son. Defendant Roe left the house and joined Stokes in the car.

Cook told Mrs. Strother they wanted the large sum of money and two diamond rings they knew she had in the house. With the black man holding her arm and that of her son, Mrs. Strother led the men into the kitchen where she gave them some money. After Cook demanded more, Mrs. Strother took the group upstairs where she gave them more money. When they returned downstairs, Cook demanded the two rings. Mrs. Strother gave him the ring from her finger. He demanded the second ring, but Mrs. Strother told him the second ring had been sold.

The men forced her and her son to lie on the floor. Mrs. Strother's hands and feet were bound behind her back with tape which the men had brought with them. Her son was bound to her with the tape. The black man, who also may have had a gun, took her purse. Cook told Mrs. Strother to remain tied for ten minutes and he would call the police.

Cook and the black man joined Stokes and defendant Roe in the car and they drove to Ketchum's house. Stokes told Ketchum to have his wife and children leave the room. Cook, defendant Roe and the black man came inside. The money, which was estimated to be $12,000 at trial, was divided into three shares in the presence of Ketchum. Stokes left with defendant Roe and the black man approximately five minutes after they arrived.

Ketchum accompanied Cook to a pond near the H. E. Bailey Turnpike where they hid Mrs. Strother's purse. The two men returned to Ketchum's house. Cook and Stokes each gave Ketchum $200.00 from the proceeds of the robbery. The trio went to Louisiana. On returning to Oklahoma, they retrieved the purse from the pond, took a ring from inside the purse and hit it again.

Ketchum was arrested on March 26, 1975, and was held in custody for five days, during which time he took Detective Dannie Cochran to the pond and helped recover Mrs. Strother's purse. Stokes, defendant Roe and defendant Howard were arrested March 28, 1975. Ketchum has never been charged in connection with the robbery. Stokes was granted immunity from prosecution for his part in the robbery in exchange for his testimony against defendant Roe and defendant Howard. The status of Jim Cook cannot be ascertained from the record.

Ketchum identified defendant Howard as the black man who received a portion of the robbery proceeds, but was unable to identify defendant Roe as the woman participant. Various State's exhibits--including photographs of the scene of the robbery, tape used to bind Mrs. Strother and her son, and marks on Mrs. Strother's wrists and ankles from the tape, plus the purse and some of its contents--were identified during the trial by the victim, Ketchum and Cochran.

At the conclusion of the State's case-in-chief, the defense's demurrer to the evidence was overruled by the trial court.

Defendant Roe testified that on March 4, 1975, she lived in an apartment at 524 N.W. 8th Street, Oklahoma City. She had the night off from her job as a waitress at the El Dorado Club, which was owned by defendant Howard and Ronnie Kirk. At approximately 8:30 p.m. she took a cab to the apartment of a friend on the south side of oklahoma City. Her friend was not home so she went to a nearby convenience store to call another cab.

While she was waiting for the cab, two men at the store offered to give her a ride home in their old model, dark blue car. The men drove defendant Roe around a nearby residential neighborhood for awhile and then asked to have sexual intercourse with her. A struggle ensued. The driver stopped the car and defendant Roe managed to open the passenger's door and escape.

Defendant Roe testified that she ran to a nearby house and rang the door bell. When Mrs. Strother opened the door, defendant Roe asked if she could use the telephone. As she was entering the house, two men pushed by her and grabbed Mrs. Strother. Defendant Roe fled the house, found a store with a telephone and called for a cab. She was frightened and decided not to call the police to report the incident because the men who had attacked her in the car knew her name and address. She testified that she could not identify the men who entered Mrs. Strother's house, did not know the two men in the car, and had not seen defendant Howard since the middle of February.

Defendant Howard admitted a 1962 federal conviction on an unspecified narcotics charge and a 1968 state conviction for receiving stolen property. He testified that on February 26, 1975, he packed his clothes in his car for a trip to visit relatives and friends in Canton, Ohio. In the late afternoon he went to the El Dorado Club, which he owned in partnership with Ronnie Kirk, and took $250.00 from the cash register. In accordance with a procedure he followed with Kirk, defendant Howard wrote an I.O.U. for the money on the back of a business card.

He identified defendant's exhibit number 1 as the I.O.U. for the $250.00, which he stated was repaid approximately one and a half weeks after he returned from his trip.

Defendant Howard, who discussed his trip plans with several persons at the club before departing, gave a detailed description of the route he followed on his drive to Canton, where he arrived in the late evening of February 27, 1975. Defendant Howard stayed at the home of his mother and his two brothers. Between February 28th and March 10th he visited with relatives and friends in the Canton area during the day, attended various sporting events with his brother, Enoch 'Booboo' Howard, on a few weekday evenings, and frequented local nightclubs on other evenings.

Defendant Howard also testified he talked with Canton police after the hubcaps were stolen from his car, and was present when the police investigated a burglary at the home of his cousin, Early Smith. He testified he left Canton and drove to Alderson, West Virginia, where he stayed at Eary's Motel from March 11th to the 15th. He identified defendant's exhibit number 2, which was not admitted into evidence, as being a record from the motel showing that an individual named 'Howard' had spent five days there beginning March 11, 1975. The purpose of his trip to Alderson was to visit Linda Sue Poole, an inmate at the federal reformatory for women. He left Alderson on the afternoon of March 15th and drove to Oklahoma City, arriving March 18th.

Defendant Howard was arrested on March 28, 1975, questioned about the robbery, charged in connection with unspecified traffic tickets, and released. On April 28, 1975, he was arrested and charged in connection with the robbery. At trial, he denied knowledge of, or participation in, the robbery of Mrs. Strother. He also denied knowing either Stokes or Ketchum.

Linda Sue Poole testified that defendant Howard had visited her at the Alderson facility for five consecutive days beginning March 11, 1975.

Ronnie Kirk, defendant Howard's business partner, testified that he and Howard discussed the planned trip to Canton at the El Dorado Club on February 26, 1975. Kirk gave Howard the $250.00...