Padillow v. State, A--16375
| Decision Date | 27 September 1972 |
| Docket Number | No. A--16375,A--16375 |
| Citation | 501 P.2d 837 |
| Parties | Brazzyer PADILLOW, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Brazzyer Padillow, appellant, hereinafter referred to as the defendant, was charged with the crime of Murder in the District Court of Tulsa County. He was represented by counsel and received a jury trial. The jury found him guilty as charged and returned a verdict assessing the sentence of death in the electric chair. From said judgment and sentence this case is now on appeal. The judgment herein is affirmed, but sentence is modified to life imprisonment.
The facts reveal: On July 30, 1970, defendant went to the apartment of Vergia Robinson, armed with a pistol. Mary Frances Hearns, the deceased, was separated from her husband, Ira Hearns, and had been living with Vergia Robinson. During that separation defendant had been dating Mary Frances Hearns. Beside Vergia Robinson and Mary Frances Hearns, Clint Cox and John Pittman were at Vergia's apartment playing cards in the kitchen when defendant arrived. Clint Cox was Mary Frances Hearns' brother. Defendant knocked at the door, was invited inside and sat on the sofa. Mary Frances went into the living room to discuss her relationship with the defendant, as well as certain accusations he had made concerning her husband. Shortly thereafter Ira Hearns arrived, and a discussion ensued. Mary Frances went back into the kitchen to get a light for her cigarette, leaving defendant and her husband in the living room; she later returned to the living room, standing near the kitchen door.
Defendant and Ira Hearns became involved in a heated discussion concerning certain alleged accusations defendant had made about him. During that discussion Mary Frances Hearns returned to the living room. Mr. Hearns told the defendant he didn't want him threatening Mary Frances with a gun anymore, which defendant denied doing. Mr. Hearns turned to his wife, Mary Frances, and said: 'Well, Mary Frances, do you want him?' and she replied: 'No, I've already told him.' Mr. Hearns then said to defendant: Defendant replied: 'Okay, man, well, I'll leave.' The testimony showed that Mr. Hearns reached out his hand and said: 'Man, we can still be friends.' But defendant replied: According to the testimony of Pittman, defendant walked to the screen door, turned around and said something to Mr. Hearns like: At this point he commenced firing his pistol. Mr. Hearns grabbed at defendant and followed him out the door; Mary Frances Hearns fell on her face through the living room door into the kitchen, saying: 'Verg, I'm shot.' Clint Cox obtained a pistol from one of the dresser drawers in Vergia Robinson's apartment and pursued the defendant. Mary Frances Hearns died and her husband, Ira Hearns, was wounded. Defendant was apprehended by the police the next day.
The pathologist, Dr. Robert M. Fogel, testified that Mary Frances Hearns was shot three times, once in the chest, in the back of the forearm, and near the wrist; and that the cause of her death was extensive hemorrhage within both lungs and within the heart, caused by the bullet which entered her chest.
The other witnesses at Vergia Robinson's apartment testified to substantially the same facts. Testimony of other witnesses was offered concerning defendant's apprehension the following morning and the resulting investigation, which is not necessary to repeat herein.
Defendant testified in his own behalf and related that he acted in self-defense after Mr. Hearns jumped up, started for him, and 'made a run at his (Hearns') pocket.' He denied pulling a gun on Mr. Hearns and said he was afraid of what Hearns would do to him, which caused him to pull the gun and shoot. He admitted having the weapon on his person, but related that he purchased it after Clint Cox held a gun on him and two other persons assaulted him outside Vergia Robinson's apartment about July 20th, prior to the killing incident. He denied ever threatening Mary Frances Hearns and said he did not fire his weapon until after he left the house; that he had no idea how she was shot. He testified that Hearns followed him out the door with a .22 caliber pistol.
Ira Hearns, Clint Cox and Vergia Robinson were called as rebuttal witnesses. Hearns denied that he had a gun on the night in question; and Clint Cox explained the occasion when he confronted the defendant, which he asserted occurred some two months earlier; and resulted because defendant had earlier confronted his sister, Mary Frances Hearns, with a gun, once at the ball park and again at the 'Corner Bar.' Vergia Robinson's testimony substantially corroborated that of Clint Cox concerning the confrontations between defendant and Clint Cox. Defendant then testified as a rebuttal witness to render his version of the confrontations between him and Clint Cox.
After the jury was instructed, a verdict was returned finding defendant guilty of the crime of murder, and assessing his punishment at death by electrocution, from which this appeal was lodged.
Defendant's first proposition in his brief asserts the jury was qualified for the death penalty in violation of the United States Supreme Court's decision in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. Defendant's proposition offers a close question concerning the trial court's general question propounded to the jurors, but in view of the Honorable United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, 1972, this question becomes moot and we will therefore not discuss it further.
Defendant's second proposition asserts that error was committed when the trial court permitted the prosecution to go into collateral matters not brought out during direct examination of defendant, and that the rebuttal testimony was not properly admitted. Defendant cites the rebuttal testimony of Ira Hearns, Clint Cox and Vergia Robinson, and contends that the method of impeachment of defendant's testimony was improperly accomplished by these witnesses.
On direct examination defendant was asked why he bought the pistol. The prosecutor's objection was overruled and defendant was permitted to explain that about a month prior to July 30th, when this tragedy occurred, Clint Cox held a .25 automatic on him and two other men beat him up in front of Vergia's apartment. This series of questions and answers opened the door for the prosecution to inquire of the witnesses concerning that incident and others related to it, in order to show defendant's attitude and actions toward the deceased woman. The trial court ruled at one time, 'All the...
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