McKenzie v. State, A--17775

• Decision Date: 14 March 1973
• Docket Number: No. A--17775,A--17775
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Paul Dean McKENZIE and Bruce Ray Needham, Appellants, v. The STATE of Oklahoma, Appellee.

Page 1333

507 P.2d 1333

Paul Dean McKENZIE and Bruce Ray Needham, Appellants, v. The STATE of Oklahoma, Appellee.

No. A--17775.

Court of Criminal Appeals of Oklahoma.

March 14, 1973.

Don Anderson, Public Defender, and Jack E. Gray, Oklahoma County, for appellants.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., John C. Williams, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellants, Paul Dean McKenzie and Bruce Ray Needham, hereinafter referred to as Defendant McKenzie and Defendant Needham, were charged and tried in the District Court of Oklahoma County, Case No. CRF--72--56. Defendant Needham was convicted for the offense of Robbery with Firearms and Defendant McKenzie was convicted of the offense of Robbery with Firearms, After Former Conviction of a Felony. Punishment was fixed at thirty-two (32) years imprisonment for Defendant Needham and seventy-five (75) years imprisonment for Defendant McKenzie. From said judgments and sentences, a timely appeal has been perfected to this Court.

At the trial, Trannon Charles Burroughs testified that on January 7, 1972 he operated a tavern at 501 Hudson in Oklahoma City. Defendant Needham had worked for him as a bartender off and on for the past seven years and he had known Defendant McKenzie for a year or two. Both defendants had been in his bar earlier that evening, then left. They returned about 11:00 p.m. Defendant Needham walked directly to Burroughs, put a rifle in his stomach and said he was going to kill him. Defendant Needham fired several shots inside the bar. A customer, Jeannie Evans, stated, 'Don't kill Chuck' and Defendant Needham struck her in the mouth with the butt of the gun. He went to the cash register and removed a handful of money. He then tossed the gun to Defendant McKenzie, who had been standing by the front door. Defendant Needham stated that at 12:00 they were going to kill everyone present. The police officers came into the bar and Defendant McKenzie concealed the weapon under his coat and slipped out the door. The police officers asked if everything was alright and he replied that it was because he was afraid that they might get shot. The officers left and he ran outside and told them about the gun and robbery.

Charles Evans testified that he was in the bar on the evening in question with his wife. At approximately 11:00 p.m., Defendant Needham walked into the bar carrying a rifle followed by Defendant McKenzie. Defendant Needham walked up to Burroughs, stuck the rifle in his stomach and said he was going to kill him. Defendant McKenzie remained at the front door guarding it. Evans, sitting at the bar, started to get up whereupon Defendant Needham fired the rifle between his legs and a second shot over his head. His wife was talking to Chris, Burroughs' wife, at this point and Needham called them over to him and struck Mrs. Evans with the rifle butt, knocking her down. Defendant Needham fired several more shots, more or less at random, then tossed the rifle to McKenzie who concealed it under his top coat. Defendant Needham stated that at 12:00 'everybody was going to die.' (Tr. 66) Defendant Needham went behind the bar and got some bills out of the cash register. Defendant McKenzie remainded behind the door as the police entered and then slipped out.

Officer James testified that he investigated the scene about midnight. He identified various photographs showing cartridge cases and bullet holes.

Emogene Evans testified that she was with her husband, Charles, at the bar when the defendants came in about 11:00 p.m., Defendant Needham carrying a rifle. Defendant Needham put the rifle against Burroughs 'belly' and said he was going to kill him. He called her over and, as she tried to talk him out of shooting, he struck her with the rifle, knocking her down.

Officer Shaeffer testified that on the evening in question he and his partner, Officer Lewis, stopped at the Chuck and Chris Bar about 11:45 p.m. on a routing check. Upon entering, he noticed that no one was talking, no music was playing and everyone was facing the doorway. He asked if anything was wrong and, receiving no reply, repeated the question. Defendant Needham said that nothing was wrong. He noticed that Defendant McKenzie left the bar as they entered. The officers went back outside to contact Defendant McKenzie. As they were talking to Defendant McKenzie, a man came running out of the bar yelling that he had been robbed. Officer Lewis obtained the rifle, State's Exhibit No. 6, from a car parked just outside the tavern door. They found Seventy-nine Dollars ($79.00) on Defendant Needham's person and Sixty-five Dollars and Sixty-five Cents ($65.65) was found on Defendant McKenzie's person.

Officer Thompson testified that on January 8, 1972, he interrogated Defendant Needham, first giving the Miranda warning. Defendant Needham stated that he went to the bar to return the rifle he borrowed from Burroughs. At Burroughs request, he fired into the floor one time to demonstrate that the weapon was in working order. He denied robbing or threatening anyone. Thompson testified that he also interrogated Defendant McKenzie after first giving the Miranda warning. Defendant McKenzie stated that he went to the bar with Defendant Needham to return a borrowed rifle; that no shot was fired; and that no robbery occurred.

For the defense, Sam Ballard testified that he was the early shift bartender at the tavern and that on January 7, 1972, he loaned Defendant McKenzie Twenty Dollars ($20.00).

Earlene Gibson testified that around noon on January 7, 1972 she cashed a check and repaid Fifty-three Dollars ($53.00) to Defendant Needham.

Warren Leo Burroughs testified that he was the owner of the Chuck and Chris Bar and that his brother, Chuck, managed it. He was in the bar on the evening in question and did not see Defendant McKenzie make any threats against his brother, Chuck. However, he saw 'threatening gestures' made and saw Defendant Needham fire five or six shots with the rifle. Defendant Needham also took a handful of bills from the...