Lamb v. State, F--76--622

Decision Date31 January 1977
Docket NumberNo. F--76--622,F--76--622
Citation560 P.2d 583
PartiesDanny Ray LAMB, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

BUSSEY, Judge:

Appellant, Danny Ray Lamb, hereinafter referred to as defendant, was charged in the District Court, Tulsa County, Case No. CRF--75--2329, with the offense of Robbery with Firearms, After Former Conviction of a Felony. Punishment was assessed at thirty (30) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

The State's first witness was Tulsa Police Officer Mike Higgins, who stated that at approximately 5:00 p.m. on September 30, 1975, he observed the defendant, Thomas Hamilton and John Lamb in a green early-fifties model Chevrolet panel truck. The witness identified the defendant as the same person he observed in the truck. Officer Higgins also identified several photographs of a truck as depicting the truck in which he had observed the defendant.

The State's second witness was Mike Freeland, proprietor of Freeland-Brown Pharmacy in Tulsa, Oklahoma. This witness stated that on the evening of September 30, 1975, he was working in the rear of the store when he heard a commotion in the front which caused him to glance up from what he was doing. He then saw two men approaching him wearing masks and one of the men was carrying a gun. Freeland and two other employees were ordered to lie on the floor. He then stated that one of the men then ordered him to collect the money and drugs and place them in plastic bags. Freeland was then ordered to lie down, once again, and not move for five minutes. He did so and the men departed. Freeland then stated that after he had been lying on the floor for about five seconds, he reached up to a telephone. While in the process of dialing zero, he heard gunfire which caused him to immediately lie down again. Several minutes later a policeman came to the store asking 'is there anyone in here.' The witness stood up, and lying a short distance away inside the pharmacy was one of the robbers. On cross-examination it was elicited that this witness had, at no time, observed the defendant in the pharmacy. The witness also identified a photograph as depicting the armed robber who had been shot inside the store.

Betty McGouldrick and Cindy Turney were the State's third and fourth witnesses. On the evening of September 30, 1975, they were both working in the Freeland-Brown Pharmacy in Tulsa, Oklahoma. Their testimony as to the occurrences on that evening corroborated that of Mike Freeland. They, too, were not able to place the defendant in the store at the time of the robbery.

Randy Corley was the State's fifth witness and testified that on September 30, 1975, he was 'cruising' in his automobile in the vicinity of the Freeland-Brown Pharmacy in Tulsa. As he passed the pharmacy he noticed a police cruiser pull up to it with the lights off. Thinking this was unusual, Corely testified that he stopped his own car and observed the policeman jump out of the cruiser and fire his weapon at a man wearing a ski mask, who came running out of the pharmacy. The man dropped a bag and ran around the corner of the pharmacy. The witness stated that he saw a green early-fifties model Chevrolet Van moving slowly in the parking lot behind the pharmacy. He then saw a man wave down the van and jump into it. Corley stated that he observed the driver of the van, who had long blonde hair. The van then drove out of his view. This witness identified photographs as being accurate representations of the van which he observed on that night.

Officer Walter LeNoir, Tulsa Police Department, was the State's sixth witness. He stated that at approximately 8:00 p.m. on September 30, 1975, he was on patrol duty in a police cruiser and that as he passed the Freeland-Brown Pharmacy, he noticed three individuals standing alongside the building. Considering this suspicious, since there were no cars in the parking lot, Officer LeNoir turned around, cut off his lights, and stopped in the parking lot just opposite the entrance to the pharmacy. At this time the officer noted some individuals entering the store, but he stated that he did not know if they were the same individuals whom he had seen at the side of the building. He then moved his car to where he could see directly into the store. At first he was unable to see anyone in the store, but after jockeying his car back and forth, he was able to see at least one person with a mask on, carrying a gun. He then radioed for help, got out of his car, drew his revolver and waited. At about that time another officer arrived. He, too, got out of his vehicle and drew his revolver. Almost simultaneously, two men with masks and, apparently, guns, started to exit. Shooting ensued. One man fell back into the store. The second officer pursued the other, who had run from the front in a hale of gunfire to the side of the building. The witness stated that he then entered the building and found one man lying on the floor with a wound in his back.

On cross-examination Officer LeNoir was unable to state with certainty that the three individuals whom he first observed at the side of the building were the same individuals who robbed the store. Likewise, he was unable to identify the defendant as one of the robbers, although he did state that one of the three individuals whom he first observed, had long blonde hair.

Robert Crow, Tulsa City Police Officer, next testified that he was the first officer to arrive in response to Officer LeNoir's 'robbery in progress' radio message. He pulled his car in front of the pharmacy, got out and drew his revolver and fired at the person exiting the pharmacy, who had a bag and a gun in his hands. The two men who were attempting to exit fell back into the store. One then came running out, dropping the bag and gun. The officer fired several more times, but was unable to stop the van, which drove away at a high rate of speed. Crow stated that he glimpsed a long hair blonde individual driving the van, but he was unable to identify the defendant as that driver. He was able to identify photographs of the van, however.

Kelley Watson next testified that she observed the events related by the officer as she was in the vicinity at the time in question. She related how she observed the green early-fifties model van leaving the scene. Seeing that no one was in pursuit, she followed it for a short distance. She then returned to the scene and told an officer what she had observed. She then met several friends and they proceeded in two cars to try and retrace the route the van had taken. After describing the route she traversed, she related how she observed the same van parked in front of a house with several individuals standing around it. She stated that Linda Cooper was one of her friends who had followed her. The witness further stated that she was unable to identify any of the persons whom she saw standing near the van, although she did identify the photographs of the van.

After this witness was excused, the jury was dismissed until the following morning. The State indicated a desire to read, at trial, the testimony of witness Linda Cooper, who had given identification testimony at the preliminary examination on this matter. In support of his contention that this identification testimony was tainted by an overly suggestive photograph lineup, the defendant introduced the testimony of three witnesses in an in camera hearing.

The first witness on this issue was Curtis Hanks, who stated that he was investigating the robbery in question and in this regard he contacted Linda Cooper on the day prior to the preliminary examination. The officer had reason to know that Linda Cooper had seen the events in question and might have relevant information. Officer Hanks stated that he did not personally show mug shots to Linda Cooper, but that he did have a telephone conversation relative thereto and at that time he may have indicated to her that she had 'picked our boy.' The witness stated that at no time during the conversation did Linda Cooper indicate to him any uncertainty in her identification.

The defendant's second witness in the hearing to suppress eyewitness identification was Assistant District Attorney Richard Johnson, who stated that on the day of the preliminary examination he had a conversation with Linda Cooper concerning her testimony. He denied coaching her at all, or telling her that the defendant's hair was longer or shorter than in a picture of the defendant which she had previously identified. The witness stated that he told Ms. Cooper only to be positive, if she could, in her identification.

The defendant's third witness in this hearing was Officer Frieberger of the Tulsa Police Department, who stated that he contacted Linda Cooper shortly before the preliminary examination in order to have her look over some mug shots, one of which was of the defendant. He stated that Ms. Cooper identified the defendant after looking over all of the photos, and that she expressed no hesitancy in making the identification. After this witness was excused, the defendant's motion to suppress the eyewitness' testimony, was denied. The jury was recalled and the trial resumed.

Tulsa Police Detective Curtis Hanks was the State's next witness at trial. He identified a photograph of the defendant...

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    ...P.2d 1130, 1132 (Okl.Cr.1982) (juvenile proceedings); Burks v. State, 594 P.2d 771, 772 (Okl.Cr.1979) (appellate level); Lamb v. State, 560 P.2d 583, 588 (Okl.Cr.1977) (continuance during trial). The same is true Concerning convenience: the substantive crimes here charged arose in Garvin, C......
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