Nunley v. State, F-77-848

• Decision Date: 09 October 1979
• Docket Number: No. F-77-848,F-77-848
• Citation: 601 P.2d 459
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Calvin Joe NUNLEY, Appellant, v. The STATE of Oklahoma, Appellee.

Page 459

601 P.2d 459

Calvin Joe NUNLEY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-848.

Court of Criminal Appeals of Oklahoma.

Oct. 9, 1979.

An appeal from the District Court, Stephens County; Hegel Branch, Jr., judge.

Calvin Joe Nunley, appellant, was convicted of the offense of Burglary in the Second Degree, After Former Conviction of a Felony; was sentenced to twenty-five (25) years' imprisonment, and appeals. REVERSED and REMANDED.

Mary E. Bane, Oyler & Smith, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Jerry Earl Benson, Legal Intern, for appellee.

OPINION

CORNISH, Presiding Judge:

The appellant, Calvin Joe Nunley, was convicted in a bifurcated proceeding in the District Court, Stephens County, Case No. CRF-75-264, for the offense of Burglary in the Second Degree, After Former Conviction of a Felony. Punishment was fixed at twenty-five (25) years in the State penitentiary.

The question on appeal is whether the trial court erred in ruling as a matter of law that Roy Lee Black, who testified at trial, was a "feigned accomplice" whose testimony did not require corroboration.

The facts are that on August 14, 1975, the appellant and Roy Lee Black burglarized the home of Betty Fisher near Marlow, Oklahoma. At the trial Roy Lee Black testified that several months prior to August, 1975, he contacted the Stephens County undersheriff concerning the burglary problem in that area, and that four to five weeks before the burglary the appellant approached him about hauling some stolen merchandise in a hay truck he owned. Afterwards, Black said he again approached the authorities, and was instructed by the undersheriff to "keep in touch with him and then if something happened he would try to set it up where we could stop it." Roy Black further testified that at the time he "agreed to work for the Sheriff's Department" he had been granted immunity from prosecution.

Black's testimony placed the appellant and him in Rush Springs, Oklahoma, on August 14, 1975, where the pair went to look at a hay truck of Black's which the appellant had talked about purchasing. After looking at the truck, the appellant asked Black if he was in a hurry to return to Marlow, to which Black responded in the negative. They then proceeded to an area east of Duncan, Oklahoma. Black and the appellant did not discuss the subject of burglary at that time, because, according to Black, the subject had been broached several weeks earlier and, "it was pretty well already understood . . . that I was going to work with him." The two men stopped at various residences in the area, where Black went to the door and asked if a fictitious person lived nearby. Using this method, they found an unoccupied house, broke in, and took various items.

Black further testified that he tried unsuccessfully to contact the undersheriff that night but did report the burglary the following morning. According to the undersheriff, however, Black did not contact him until August 26. The stolen items were later recovered from the Farmer residence in Marlow, after Black provided the Sheriff's Department sufficient information for a search warrant. These items were introduced into evidence at trial.

Witness Black admitted that he lacked any specific agreement with the Sheriff's Department to burglarize the Fisher residence, but asserted that was due to the spontaneous nature of the act. Successful hearsay objections by defense counsel prevented the State from eliciting testimony from the undersheriff as to conversations he had had with Black prior to the burglary. He testified only that he had been contacted once by Black before the crime. Thus, Black's testimony was the primary evidence indicating that he was working under the auspices of the Sheriff's Department.

The only other evidence at trial consisted of Mrs. Fisher's testimony that her home had been burglarized and the testimony of another witness who identified Mr. Black as the man who came to her door on August 14 in search of another address. Other than the testimony of Roy Lee Black, the jury was presented with no evidence tying the appellant to the crime.

After testimony was completed, defense counsel submitted three requested instructions as follows:

"Defendant Calvin Joe Nunley's proposed Instruction No. 1.

"An 'accomplice' is one who, with criminal intent, is concerned with others in the commission of a crime, either by being present participating in it, or not being present, by aiding and abetting it, or by having advised and encouraged its commission, though not present when it is committed.

"A conviction cannot be had on the testimony of an accomplice unless the testimony of such witness be corroborated by other evidence.

"Evidence corroborative of an accomplice need not directly connect the defendant with the commission of the crime. It is sufficient if it tends to connect the defendant with its commission. This corroborating evidence, however, must show more than the mere commission of the offense or the circumstances thereof. Such evidence need not be direct, but may be circumstantial evidence only.

"It is not essential that the corroborating evidence, if any, shall cover every material point testified to by the accomplice, or be sufficient standing alone, to establish the fact of the commission of the crime charged. It is a sufficient corroboration if the jury, in their discretion find from the evidence beyond a reasonable doubt under the law, that the testimony of the accomplice is corroborated as to some material fact or facts by independent evidence tending to connect the defendant with the commission of the crime. If an accomplice is so corroborated, you may from that infer that the accomplice speaks the truth, and you shall give said testimony such weight and credit as you find the same is entitled to receive.

"Defendant Calvin Joe Nunley's Instruction No. 2.

"You are instructed that the witness Roy Lee Black is what is termed in law as an accomplice to the crime of which the defendant here stands charged, and for that reason you cannot convict the defendant upon the testimony of such witness unless you find that such testimony is corroborated as required in the foregoing instructions.

"Defendant Calvin Joe Nunley's Instruction No. 3.

"In determining the question as to whether or not the testimony...