Hurt v. State

• Decision Date: 05 September 1956
• Docket Number: No. A-12259,A-12259
• Parties: Robert O. (Bob) HURT, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 476

303 P.2d 476

Robert O. (Bob) HURT, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12259.

Criminal Court of Appeals of Oklahoma.

Sept. 5, 1956.

Rehearing Denied Nov. 21, 1956.

Second Petition for Rehearing Denied Nov. 26, 1956.

Syllabus by the Court.

1. The statute which provides that an attorney shall not be compelled to testify 'concerning any communications made to him by his client, in that relation, or his advice thereon, without the client's consent,' is but declaratory of the common law, and should be fairly construed and applied according to the plain import of its terms; that statute is for the benefit of the client, not the attorney. 12 O.S.1951 § 385.

2. A communication to an attorney, not in his capacity as such, is without the privilege if made before the relation was entered into or after it was ended.

3. Where only a part of a communication between an attorney and client is privileged, if the privileged and unprivileged parts may be safely separated, the privileged matter only will be excluded. But if the separation is involved in difficulty, the whole will be excluded.

4. Where a party objects to the introduction of evidence on the ground that it involves a privileged communication between attorney and client, the burden is upon the one making the objection to show the relationship of attorney and client and other facts to bring the evidence within the terms of the statute pertaining to privileged communications.

5. Where it is contended that certain testimony involved a privileged communication between attorney and client, a question of fact is presented for the determination of the trial court and the finding of such court upon conflicting evidence is controlling on appeal.

6. A wire or tape recording of a conversation between accused and another is admissible in evidence against him when a proper foundation is laid by the proof with respect to the use of this method of reproducing the conversation of the accused.

7. A tape recording which represented conversation between accused and a witness which was traced from time of making original wire recording to reproduction on tape, and until admitted in evidence, and which, witness testified, contained voices of defendant and himself, was properly identified.

8. A tape recording which was made from original wire recording was admissible in evidence over objection that it was not best evidence.

Appeal from the District Court of Oklahoma County; William L. Fogg, Judge.

Robert O. (Bob) Hurt was convicted for the crime of robbery with firearms, and was sentenced to serve a term of 45 years in the penitentiary. Affirmed.

David Tant, William N. Mounger, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Granville Scanland, County Atty., John M. McPherren, Asst. County Atty., Marian P. Opala, Asst. County Atty., Oklahoma City, for defendant in error.

JONES, Presiding Judge.

The defendant, Robert O. (Bob) Hurt, was charged in the District Court of Oklahoma County together with Adrian Wayne Burns and Charles Edwin York with the crime of robbery with firearms; was tried, found guilty by verdict of the jury who left the punishment to be fixed by the court. Thereafter the defendant was sentenced to serve a term of 45 years imprisonment in the penitentiary and has appealed.

A few months preceding the trial of defendant Hurt, York was tried, convicted and sentenced to serve 45 years imprisonment in the penitentiary. On appeal the conviction was affirmed. York v. State, Okl.Cr., 281 P.2d 769; In re York, Okl.Cr., 283 P.2d 567. After the conviction of York, Burns gave a written confession to the county attorney in which he implicated the defendant and York in the commission of the crime. He had not been sentenced at the time he testified for the State against the accused, Hurt, but was later sentenced to serve a term of 7 years imprisonment in the penitentiary. Although York testified in his own trial that he was innocent of the crime, he later changed his story and testified against Hurt giving substantially the same testimony as that given by Burns. After York's appeal had become final and subsequent to the lodging of the appeal by Hurt in the instant case, York against changed his testimony and attempted to repudiate the evidence which he gave at the trial of Hurt.

Two assignments of error are presented: 1. The trial court erred in permitting attorney Frank Massad to testify concerning alleged confidential communications between Massad and the defendant. 2. Trial court committed error in permitting the State to play to the jury an edited tape recording of a conversation alleged to have occurred between Massad and defendant.

The proof of the State showed that Gurley B. Lenn was robbed at his home by two masked bandits in the early morning hours of August 25, 1953, in Oklahoma City. The robbers acted in a cruel and inhuman manner. When Mr. and Mrs. Lenn entered their home about 9:00 P.M. on August 24, they found two masked men on the inside of their house. These two men gagged Mr. and Mrs. Lenn and securely bound them with window sash cord. After that they began abusing the Lenns in an effort to force them to disclose the alleged hiding place of a large amount of money which the robbers claimed was hidden about the premises. For over 7 hours the robbers tortured Mr. Lenn by sticking a red-hot soldering iron or electric hair curler into the rectum of Lenn which caused severe pain and very great physical injury to Lenn. Lenn disclosed to the robbers the hiding place of $5,000 in currency and the robbers took that amount of money together with several diamonds, watches and guns and left the premises just before daylight on August 25.

Burns was a constable at Cordell and also operated a gambling game. The Lenns were manufacturers of gambling equipment and had sold to Burns a dice table by which the throw of the dice could be controlled. Burns was also well acquainted with Hurt, having visited in Hurt's home. The record also disclosed that Mr. and Mrs. Hurt and the Lenns had been intimate friends for several years, making frequent visits to each other's homes and on at least two occasions had made extended vacation trips together. The Lenns were possessed of a vicious watchdog named Sunday which would attack strangers. This dog was left at the home of the Lenns on the evening of August 24 when the Lenns went out to eat their evening meal. When they returned to their home the dog met them at the door and Mrs. Lenn put the dog out the back door into the enclosed back yard before she and Mr. Lenn were confronted by the two masked men.

Burns and York testified in substance that they committed the robbery at the suggestion of Hurt. Burns said that Hurt had asked him repeatedly over a period of several weeks to commit the robbery and told him that he knew that Lenn had several thousand dollars hidden or buried around his place. Burns procured York, whose home was in Tulare, California, but who had visited in Cordell where he worked temporarily for Burns, to assist in the robbery.

According to Burns and York, Hurt accompanied them to the Lenn residence where Hurt opened a window and entered the house so that he could control the vicious dog. Hurt stated that he had become well acquainted with the dog and could control him. After Hurt had entered the house he opened the back door for Burns and York to enter and then Hurt left the premises. After the robbery Burns delivered two one thousand dollar bills to Hurt together with some diamonds and a gun which Hurt had loaned to York for use in the robbery.

Roy Burns, brother of Wayne Burns, and Viola York, mother of Edwin York, corroborated a part of the testimony of Burns and York by relating conversations which they had with the defendant Hurt while the trial of York and Burns was pending. The most damaging evidence to defendant's cause, however, came from the testimony of Frank Massad, and attorney of Oklahoma City. Over the vigorous objection of counsel for the accused, Massad was permitted to detail conversation which he had with Hurt on many occasions. During one of these conversations Massad, unknown to Hurt, was equipped with a wire recorder which recorded incriminating statements made by Hurt. This recording was edited by the trial court in the absence of the jury and the edited version of the conversation was played to the jury over the objection of Hurt.

Hurt's defense was an alibi. He contended that at the time of the robbery he was playing pool in Jerry's Pool Hall in Oklahoma City with one Art Nugent. Several witnesses corroborated the defendant on his alibi. Defendant specifically denied any connection with the robbery but admitted knowing Burns and testified that he had been hired by attorney Tant to try to find some evidence to sustain an alibi for Burns to be introduced at the trial of Burns.

In connection with the first assignment of error, the record discloses that at the time objection was made to the testimony of Massad, the jury was execused and the court heard many witnesses on the question as to whether Massad was the attorney for Hurt. Massad denied that he was ever the attorney for Hurt but contended the conversations he had with Hurt were because of the relationship between Hurt and Burns and Hurt was attempting to help prepare for the trial of Burns by talking to Massad and Tant who were representing Burns. On the other hand, Hurt testified that the night that Burns was arrested and charged with the crime, Massad came to Hurt's home and informed Hurt that some of the policement were trying to implicate Hurt in the robbery and that on that occasion Hurt told Massad he wanted him for his attorney and Massad agreed. However, on cross-examination Hurt testified that Massad did not become his attorney until charges were filed against Hurt on May 13, 1954, and that when perjury charges were...