Miles v. State, F--76--307
| Decision Date | 20 September 1976 |
| Docket Number | No. F--76--307,F--76--307 |
| Citation | 554 P.2d 1200 |
| Parties | Steven Allen MILES, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, Steven Allen Miles, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Tulsa County, Case No. CRF--75--1813, for the offense of Shooting With Intent to Kill, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 652. His punishment was fixed at fifty-five (55) years' imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.
J. A. Eddington testified that at approximately 4:00 p.m., August 10, 1975, he observed a white Oldsmobile and a green and white van in the parking lot of Sequoyah Hills Baptist Church. The driver of the white Oldsmobile took some wigs from behind the seat, then got into the van. Both men put on the wigs and then left the parking lot in the van. Subsequently, witness called Officer Jerry Gaber and related the suspicious circumstances to him. At approximately 4:45 p.m. the two men returned in the van, transferred some things from the van to white Oldsmobile, then both men proceeded to leave the lot in the white Oldsmobile. At that point two patrol cars entered the lot and a chase ensued. Thereafter, witness heard some shots being fired.
Jesse James Simon testified that he was in the parking lot of Sequoyah Hills Baptist Church shortly before 5:00 p.m., August 10, 1975. His testimony substantiated that of J. A. Eddington.
Charles Lewis, police officer, testified that he entered the parking lot of the Sequoyah Hills Baptist Church and observed two men leaving a white and green van and entering a white Olds. The white car left the lot at a high rate of speed and witness gave pursuit. While in pursuit, witness observed one of the occupants climb into the back seat with what appeared to be a rifle. The occupant then leaned out the left hand rear window and pointed the gun toward the witness' car. After failing to negotiate a turn, defendant's car came to a rest near the intersection of Archer and Indianapolis. The defendant then fired the shotgun toward the witness, who subsequently returned fire. The witness then identified State's Exhibits No. 2 & 3, as the live shotgun shells which he removed from the defendant's pocket at the time of his arrest. The witness further identified the defendant as the person who fired the shotgun at him.
Gerald Bryan testified that he was a police officer, with the City of Tulsa, and that at approximately 4:30 p.m., August 10, 1975, he had an occasion to be in the parking lot of the Sequoyah Hills Baptist Church. J. A. Eddington had given the witness some information concerning two white males in their twenties, and the suspicious nature of what he had observed in the parking lot. The witness ran a vehicle check on the white Oldsmobile, then left the parking lot and joined up with Officer Lewis. Shortly, they returned to the lot where they observed the defendant and another man leaving a green and white van and entering the white Oldsmobile. The witness' testimony concerning the subsequent events substantiated the testimony of Officer Lewis. In addition witness identified the defendant as the one who fired the shotgun and identified State's Exhibit No. 1, as the sawed-off .12 gauge shotgun recovered at the scene of the shooting. State's Exhibit No. 4 was identified as the spent .12 gauge hull the witness removed from the defendant's shotgun at the scene of the crime.
Danny Edwards testified that he lived at 3318 East Archer and that on the 10th day of August, 1975, at approximately 4:20 p.m., the witness heard sirens near his home. The witness stepped out the front door and observed two police units near the intersection of Archer and Indianapolis Streets, and a white Oldsmobile Cutlass with a flat tire. He then saw someone in the white Oldsmobile point a shotgun in the direction of the police officers, who were standing near their respective units. At that point, the witness ran back inside the house, then heard the shooting start.
Steve Raiford, testified tht he was a police officer with the City of Tulsa, and that he was so employed on the 10th day of August, 1975. At 4:55 p.m., in response to a call, the witness proceeded to the area of Archer and Indianapolis. As he approached that intersection, he heard gun shots, observed the defendant running into an alley, intercepted the defendant and arrested him.
In his first assignment of error, the defendant asserts that the trial court erred in not granting the defendant's request for continuance. The motion was interposed to provide him with additional time to subpoena witnesses and have his court appointed attorney withdrawn.
It is elementary that motions for continuance are addressed to the sound discretion of the trial judge and rulings thereon will not be disturbed on appeal unless a clear abuse of that discretion is readily apparent. Brown v. State, Okl.Cr., 456 P.2d 604, 605 (1969). Further, in Colvard v. State, Okl.Cr., 453 P.2d 715 (1969) this Court stated in paragraph two of the syllabus:
'The rule is well settled that it is the duty of defendant to use all reasonable diligence in order to secure the attendance of witnesses in his behalf, and it must be made to appear from the application of continuance that he has used due diligence in procuring the attendance of his witnesses, and the application must set out facts fully which constitute due diligence.'
See also Maxey v. State, Okl.Cr., 526 P.2d 951 (1974).
In the present case, the defendant had forty-two days between arraignment and trial in which to subpoena witnesses. Nothing appears on record which would indicate that the defendant exercised due diligence in securing the witnesses now complained of. Further, his application clearly indicates that the expected testimony of said witnesses would lend no relevancy to the issues of the present case.
It was further indicated in the defendant's first...
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