Lee v. State, F--76--264
| Decision Date | 11 February 1977 |
| Docket Number | No. F--76--264,F--76--424,F--76--264 |
| Citation | 560 P.2d 226 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
| Parties | Marvin Richard LEE, Appellant, v. The STATE of Oklahoma, Appellee. |
Appellant, Marvin Richard Lee, hereinafter referred to as defendant, was charged, tried and convicted in the Tulsa County District Court, Case No. CRF--75--683 for the offense of Robbery With Firearms, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 801. Pursuant thereto the jury fixed his punishment at a term of fifty (50) years' imprisonment. The defendant was also convicted upon pleas of guilty in the Tulsa County District Court, Case No. CRF--75--681, for the offense of Unlawful Possession of Marijuana, in violation of 63 O.S.1971, § 2--402B, 2, and in CRF--75--682, for the offense of Feloniously Carrying a Firearm, in violation of 21 O.S.1971, § 1283. His punishment was fixed by the trial court in CRF--75--681 at six (6) months' imprisonment, to run concurrently with CRF--75--683. From said judgments and sentences in the aforesaid cases the defendant has appealed to this Court and, consistent with the request of the defendant, all three cases were consolidated for appeal purposes by order of this Court.
We first note that the defendant's convictions in CRF--75--681 and CRF--75--682 were sustained upon pleas of guilty and thus any attempted appeal must comply with 22 O.S.1971, § 1051 and Rule 3 of the Rules of this Court. We need only observe that the purported appeal from these convictions has not been perfected within the statutory prescribed time for an appeal from a plea of guilty by certiorari and thus the instant appeal insofar as it pertains to these cases will be dismissed. Only the defendant's conviction in CRF--75--683 will be reviewed by this Court.
The State's first witness Terry Laird testified that he was employed as a clerk at Fast Eddy's Food Store in Tulsa, Oklahoma, that he was working at the store between the hours of 6:00 and 7:00 a.m. on March 27, 1975. He stated that at approximately 6:30 a.m. two men walked into the store, and one of the men carried a small automatic pistol in his hand. The witness also stated that he was the only employee on duty at that time and that the entire interior of the store was well-lighted. He then gave a general description of the two men, stating that they were both black men and wore leather jackets. He testified that the man with the gun grabbed him by the collar, stuck the gun to his eye and told him to open up the cash register. The witness opened the cash register, and the man took all of the bills out of the witness' hand and also took a considerable amount of quarters. The witness identified the two defendants in the courtroom as the same two persons who robbed him on March 27, 1975, one of which was the defendant, Marvin Lee. The witness identified State's Exhibit No. 2, as the coat similar to the one that defendant was wearing on the morning of March 27, 1975. He also identified State's Exhibit No. 3, as a weapon similar to the type used in the robbery, a dark automatic pistol.
Mr. Laird testified that he had seen the two persons who had committed the robbery in the store approximately one week prior to the robbery and that they had left in a white over red 1969 Chevrolet. He also stated that he was interviewed by Officer Charles Sasser, of the Tulsa Police Department, on the morning of March 28, 1975, concerning the robbery. Mr. Sasser showed Mr. Laird a group of photographs from which Mr. Laird selected a photograph of the defendant. The next day Mr. Laird identified the defendant in a line-up.
On cross-examination he testified that on the day after the robbery he went with Officer Sasser and identified a white over red automobile in front of Tulsa University Library, the same automobile that he had seen a week prior to the robbery.
The next witness called by the State was Mr. Charles Sasser, who stated that he was a police detective with the robbery/homicide division of the Tulsa Police Department. On March 28, 1975, he was notified of the armed robbery at Fast Eddy's Food Store and given information that indicated that the suspects were driving a white vinyl over red 1969 Chevrolet. He ran a computer check on vehicles that matched this description and found five vehicles owned by black men. One of these vehicles was registered in the name of the defendant, and it was discovered that he had lived in the area where the robbery occurred. Following a stake-out of the car, which was found parked at Tulsa University, detective Sasser arrested the defendant and searched the vehicle, finding a .25 caliber automatic pistol and several baggies of marijuana. He identified State's Exhibit No. 3, as the pistol which he found in the vehicle. He also identified State's Exhibit No. 2, as the black leather coat worn by the defendant when he was arrested.
Detective Sasser stated that he read the Miranda warnings to the defendant. He also stated that defendant did not ask to see an attorney. As the defendant was riding to the police station with detective Sasser he made several incriminating statements. According to the witness, defendant asked him how long he had been chasing him and denied carrying the gun into the store. The defendant stated that his partner was named Glenn or Lynn and also that he had been in the store a week before the robbery, driving a white over red Chevrolet.
The State rested.
The first witness for the defense was Beverly Lee, wife of the defendant, who testified that her husband was at home on the morning of March 27, 1975. Mrs. Lee stated that her children and Donald Rivers, a nephew, were also in the home on that date. Mrs. Lee stated that her husband did not leave home on March 27, 1975, until approximately 12:00 p.m., when he left with Donald Rivers.
The next witness for the defense was Sullivan Chaney, who stated that he was a friend of the defendant and lived immediately next door to him. He testified that he took his wife to work on the morning of March 27, 1975, and returned home at approximately 6:00. He also stated that approximately 10 or 15 minutes later he heard a car horn blowing. Mr. Chaney said that he noticed a car in front of the defendant's house, that he saw a man named Truman who owned the car, and that he saw the defendant's car.
On cross-examination the witness testified that he had been convicted of burglary in the second degree.
The next witness called on behalf of the defendant was Truman Davidson. Mr. Davidson stated that he was employed by the refuse department of the City of Tulsa. He testified that he had left his hard hat at the defendant's residence on the evening of March 26, 1975, and that he returned the next morning to retrieve the hat. He further testified that he found the defendant at his residence on that morning.
The next witness for the defense was Donald Rivers, who testified that the defendant was his uncle. He further testified that he spent the evening of March 26, 1975, at his uncle's house and that the defendant was there when he awoke in the morning. He testified that the defendant took him to school at approximately 12 noon.
On cross-examination Mr. Rivers testified that he awoke at approximately 10:00 a.m. on the morning of March 27, 1975.
The defendant's testimony established he had a previous conviction for unlawful possession of marijuana which was a felony at the time of his conviction. He stated that he did not rob Fast Eddy's Food Store, but that on the morning of March 27, 1975, he was at home with his wife, children and nephew. On cross-examination the defendant denied that he had any marijuana with him on the date of his arrest, and that the gun which Officer Sasser found in his car did not belong to him but belonged to Price Hamilton. He stated that he did not ask Officer Sasser how long he had been chasing him, he denied telling him who his partner was and he also denied making the other statements attributed to him by Officer Sasser.
The defense next called Price Hamilton. He testified that he was unemployed and that he left some marijuana and an automatic pistol in the defendant's car. When presented with the gun that was found in the defendant's car, he said that it was not the gun he had left in the car.
The witness stated on cross-examination that he did not leave the gun in the defendant's car which was found by Officer Sasser. He said that he had left some marijuana in the defendant's car at one time, but he was not sure of the date.
The defense rested.
The State then called Charles Sasser as a rebuttal witness. He testified that on March 28, 1975, at the time of the defendant's arrest he discovered a brown paper bag containing marijuana and a gun. He stated that he discovered one bag of marijuana in the defendant's coat pocket and another bag of marijuana where the defendant had been sitting in the police car.
Then the State rested.
The defendant stipulated that on May 28, 1971, he was convicted of the crime of unlawful possession of marijuana which was a felony at the time.
In his first assignment of error the defendant asserts that the jury trial in Case...
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