McDonald v. State

Decision Date30 July 1976
Docket NumberNo. F--74--772,F--74--772
Citation553 P.2d 171
PartiesAlbert McDONALD, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BLISS, Judge:

Appellant, Albert McDonald, hereinafter referred to as defendant, was charged in the Tulsa County District Court, and after a change of venue was tried and convicted in the District Court, Bryan County, Case No. CRF--73--33, for the crime of Murder, in violation of 21 O,.s.1971, § 701. The jury fixed his punishment at Life imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

In the instant case the defendant was tried and convicted for the murder of one Cleo Epps. The case presented by the State disclosed that at some time prior to August 25, 1970, Loda Bough, a neighbor of Cleo Epps, observed Epps and the defendant talking near a hole on Epps' property located approximately four miles northeast of Sapulpa, Oklahoma. As Epps was walking away, Mrs. Bough noticed that the defendant knelt down to the hole and afterwards walked away with something in his hands.

On August 25, 1970, Tulsa County District Judge Fred Nelson's automobile was bombed while he was in it. On August 26, 1970, Jack McKenzie, an investigator for the District Attorney's Office of Creek and Okfuskee Counties, observed Cleo Epps, Tom Lester Pugh and the defendant talking in front of Epps' home. Later that same day, McKenzie talked to Epps on the telephone. Following their conversation, he returned to the Epps home and examined the hole on her property. There he discovered a buried steel box which contained dynamite. After further inquiry by Investigator McKenzie and Frank Thurman of the Tulsa County Sheriff's Office, Cleo Epps eventually testified, during late September, 1970, before the grand jury investigating the bombing of Judge Nelson.

On November 12, 1970 Epps was having dinner with John and Loda Bough at the Bough's home which was located on Epps' property. Around 6:00 p.m., the defendant came to the Bough's house and asked to see Epps. Following a brief discussion in the kitchen, the defendant and Epps left the house. This was the last time the Boughs saw Cleo Epps alive.

On November 20, 1970, Epps' pickup truck was found in the parking lot of Union Square Shopping Center at 51st and Union Streets in Tulsa, Oklahoma. Police authorities inspected the vehicle and were unable to find any identifiable latent fingerprints.

Tommy Gilbert, Epps' nephew, began searching for Epps shortly after her disappearance. On February 24, 1971, Gilbert found indications that his aunt's body was in a remote area in the 6700 block on South Union, Tulsa, Oklahoma. The police were contacted and the body was discovered in a septic tank near an abandoned building at that location. The body was covered by several hundred pounds of rock and various cloth items were around the victim's head. Later, it was determined that one of the cloth items was a towel which had two small holes in it about one quarter of an inch in diameter.

It was stipulated at trial that the autopsy performed properly established that the body was that of Cleo Epps and that she was the victim of a murder, her death being caused by two bullet wounds in the head. A ballistics test further established that the bullets were compatible with that of a .22 caliber slug.

The State's case was concluded with the testimony of the chief witness, Rubie Charles Jenkins. Jenkins, convicted of murder in California on January 9, 1973, testified that he met the defendant during the spring of 1970. According to Jenkins, he and the defendant drove from Tulsa to Oklahoma City in late October, 1970. During the trip, they discussed the grand jury investigating the Nelson bombing and the defendant told Jenkins that he and Epps had dug up some dynamite which had been buried on Epps' property. He also related to Jenkins that the police had searched his car and had taken the floormat where the dynamite was placed. The defendant also told Jenkins that he suspected Epps was giving information to the police and the grand jury due to her friendship with Investigator McKenzie and her particular knowledge of the dynamite. The defendant further informed Jenkins that he had contacted Tom Lester Pugh to obtain assistance in the bombing of Judge Nelson.

Approximately two days after their first trip to Oklahoma City, Jenkins and the defendant went to Oklahoma City again. However, this time Tom Lester Pugh joined them. During the trip, the witness listened as the defendant and Pugh talked about the bombing of Judge Nelson and speculated as to what Epps could have told the grand jury.

On October 31, 1970, the three men drove together from Tulsa to McAlester. Jenkins disclosed that the same topics were discussed as before except that Pugh said to the defendant, 'we are going to have to do something to her, to--to Cleo Epps. If we don't she is going to send both of us to the penitentiary.' (Tr. 1019) In response to this statement the defendant added, 'that's right.' On November, 8, 1970, the men again drove to Oklahoma City from Tulsa and again the defendant and Pugh discussed the bombing of Judge Nelson and their concern with Cleo Epps.

Jenkins further testified that at some time around November 9, 1970, the three men met for coffee at the Holiday Inn located in west Tulsa. As they were leaving, Pugh said to the defendant, 'old buddy, we have got something that we've got to do in the next few days. If we don't, she is going to send us both to the penitentiary.' The defendant responded, 'I know that.' (Tr. 1022)

The witness stated that he learned of the death of Epps during a trip with Pugh and the defendant to Idabel, Oklahoma, on November 13, 1970. Jenkins was informed as to how the defendant got Epps out of the house and how Pugh and the defendant met her at the Union Square Shopping Center, where her pickup was later found on November 20, 1970. Pugh and the defendant related to Jenkins that at the shopping center Epps got into the front passenger seat of the car driven by the defendant and Pugh sat in the back. They then drove to either 71st or 81st and Union Streets where Pugh, using a towel to prevent blood from getting on the car, shot Epps in the back of the head with a .22 caliber pistol. When they reached the area where they planned to dispose of the body, Epps regained consciousness. Pugh then shot her again and the body was hidden.

The defense presented testimony at trial to establish that Cleo Epps was a well known bootlegger, police informer and 'fence' for stolen property. The defense attempted to connect Epps with a 1970 Dodge which had been involved in an insurance frand concerning Jenkins in Arizona. The car had been driven to Oklahoma by Jenkins' nephew during the summer of 1970. There was testimony given which established that a 1970 Dodge was on Epps' property in early November, 1970, and was later discovered on her brother's property near Wagoner, Oklahoma, on November 25, 1970, a short time after her disappearance.

The defense further offered testimony which sought to establish that Epps and Jenkins had made a deal whereby Epps was to 'fence' the 1970 Dodge and some jewelry. The testimony given attempted to indicate that Epps kept the car and jewelry and failed to pay Jenkins. Burns Trusty, a witness for the defendant, stated that Jenkins told him that he was mad at Epps and killed her with the aid of his wife. Also, the defense pointed out that Jenkins' home was located within one mile of the area in which Epps' body was eventually found.

The defense also presented the stipulation that there was no evidence obtained from the investigation of the defendant's floormat which could conclusively associate the defendant with the bombing of Judge Nelson. Furthermore, Tom Lester Pugh testified that the defendant was never present during any of the trips with Jenkins, and he further denied making any statements to Jenkins in reference to either the bombing of Nelson or the murder of Cleo Epps.

In rebuttal the State called two witnesses. Tom Bunting, an agent with the Oklahoma State Bureau of Investigation, testified that he transported Tom Lester Pugh to Durant on May 8, 1974, so that Pugh could testify in the instant case. During the drive Pugh said to Bunting, 'I could put it on him. But I have to use him in my trial.' (Tr. 1639) The second rebuttal witness, William L. Wise, stated that he was a rancher in Idabel, Oklahoma. Wise testified that on November 13, 1970, three people came to his home in Idabel. The witness identified the defendant as one of these people.

The defendant's first assignment of error asserts:

'Appellant was denied the fair and impartial trial guaranteed him by the constitutions of the United States and the State of Oklahoma by knowing failure of the prosecution to disclose the existence of exculpatory evidence previously requested by the appellant.'

The State's evidence revealed through the testimony of Rubie Charles Jenkins that he, Lester Pugh and the defendant went to Idabel, Oklahoma, on November 13 or 14, 1970. Jenkins related that during that trip the defendant and Pugh described to Jenkins how they had killed Cleo Epps and disposed of her body. To the contrary, the defense produced the testimony of Lester Pugh and Burns Trusty, Jr., that they had accompanied Rubie Charles Jenkins to Idabel, Oklahoma, and that the defendant was not present. Consequently, at the close of the defendant's case the State offered the rebuttal testimony of William L. Wise, who related that his home had been robbed on November 13, 1970, and he identified defendant as being one of the robbers. Mr. Wise also testified that he did not remember having been shown any pictures of Albert McDonald.

On the supplemental motion for new trial, defendant...

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