Parks v. State

• Decision Date: 09 July 1969
• Docket Number: No. A--14609,A--14609
• Citation: 457 P.2d 818
• Parties: William Frank PARKS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 818

457 P.2d 818

William Frank PARKS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14609.

Court of Criminal Appeals of Oklahoma.

July 9, 1969.

Syllabus by the Court

1. Evidence of other offenses is admissible to establish scheme, plan, or identity, and where the offenses are so closely related to each other that the proof of one tends to establish the other.

2. It is not necessary to declare a mistrial where the trial court sustains an objection to improper questioning and admonishes the jury to disregard same if it was not so flagrantly prejudicial as to deprive the defendant of a fair trial.

3. Where the trial court examines the jury and finds no basis to a report by defense counsel that he overheard a juror comment upon defendant's guilt during a recess, there is no error in failure to grant a mistrial, as defendant must prove misconduct of the jury.

4. In Oklahoma, a prosecution may be by indictment or information, and a prosecution by information does not violate the Fifth or Fourteenth Amendments of the United States Constitution.

5. Unsupported allegation of incompetent counsel is without merit where it appears that counsel was a duly licensed member of the bar and the record does not show that counsel made the proceedings against defendant a farce or mockery of justice, shocking to the conscience of the court.

Appeal from the District Court of Canadian County; Wm. L. Fogg, Judge.

William Frank Parks was convicted of the crime of Robbery With Firearms After Former Conviction of a Felony, was sentenced to serve fifteen years in the state penitentiary, and appeals.

Affirmed.

J. L. Pazoureck, Public Defender, for plaintiff in error.

Virgil R. Ball, Dist. Atty., George S. Turner, Asst. Dist. Atty., for defendant in error.

BUSSEY, Judge.

William Frank Parks, hereinafter referred to as defendant, was charged by Information in the District Court of Canadian County, with the crime of Robbery With Firearms After Former Conviction of a Felony. The case came on for trial on October 30th and 31st, 1967, and the jury returned a verdict finding the defendant guilty and assessing his punishment at a term of fifteen years imprisonment. Motion for New Trial was overruled and judgment and sentence was imposed in accordance with the verdict of the jury on November 6, 1967. From said judgment and sentence a timely appeal has been perfected to this court.

The State alleged that the defendant, acting conjointly with one Ronald Paul Maynard, did rob one Terry Kimsey, taking certain money and property of value, said robbery being accomplished by menacing Terry Kimsey with a chain and a .22 revolver.

The victim of the robbery, Terry Kimsey, testified that on the evening of November 19, 1966, about 10:15 or 10:30, he and Allen Travis were parked, with their dates, on a river road on the Canadian River, north of Lake Overholser in Canadian County. He testified they had been there only a short while when another car drove up and two males got out of the car and walked up to their car. Kimsey and Travis got out of their car and after a brief exchange, one of the men pulled a gun and ordered Kimsey and Travis to get up against their car and put their hands on the hood. Kimsey identified the man with the gun as the defendant, William F. Parks. The other man hit Travis on the back with a chain, and told him to get against the car. When they were against the car with their backs to the men, one of the men shot the gun over their heads. Parks then proceeded to take the billfolds from the back pockets of Kimsey and Travis. The other man opened the hood of Kimsey's car and removed some wiring. The defendant and his companion then drove off in their white-over-blue 1959 or 1960 Chevrolet. Kimsey and Travis got back in their car and tried to follow the defendant to obtain a license number. The defendant's car stopped, turned around, and passed Kimsey's car, when they shot at the victims with their revolver a second time. Kimsey testified that he could not identify Park's accomplice, and further testified that his billfold contained about $20.00, his driver's license, social security card, and some pictures.

Allen Travis testified substantially in accord with Kimsey's testimony, but he stated that he could not positively identify the man who had the gun. He testified that the men took his billfold which contained $16.00, and his identification cards.

Robert Schlittenhardt testified he was an employee of Chapman's Food Market in Oklahoma City and on November 21st or 22nd, 1966, the defendant cashed a $20.00 money order made payable to Terry Kimsey and that the defendant presented identification cards of the said Terry Kimsey.

Howard Cooper testified that he was a postal inspector working for the United States Post Office. He stated that in the course of his duties he came into possession of a $20.00 postal order cashed at Chapman's Food Market in Oklahoma City in November, 1966. He stated he sent the money order to Mr. George Vollertsen at the Postal Service Laboratory in Chicago, Illinois. The money order was later returned by Mr. Vollertsen to the witness. The witness identified the money order as being the one he had sent and received from Mr. Vollertsen.

Mr. Schlittenhardt, the employee of Chapman's Food Market, was recalled to testify and he stated that the money order identified by Mr. Cooper was the same that he had cashed on an earlier date.

Mr. George Vollertsen was called as a witness and testified that he was an examiner of questionable documents for the Postal Inspection Service in Chicago, Illinois. He testified that part of his duties involved the examination of documents for fingerprints. He stated he had previously examined the money order and found fingerprints of Paul Maynard (the person with whom the defendant was charged conjointly in committing the robbery). At this point the defendant objected to the testimony, which objection was sustained and the court instructed the jury to disregard the testimony of Mr. Vollertsen and to not consider it in any way.

The defense called two witnesses, Robert John Barnes and Bobby Woods, both of whom were working at the VFW Club at Tenth and North Blackwelder in Oklahoma City on November 19, 1966. Both witnesses testified that they saw the defendant along with Paul Maynard at the VFW Club on the night of November 19, 1966. Woods testified he saw the defendant around 10:00 p.m., and Barnes testified that he saw him sometime after 9:00 p.m.

On appeal we shall first consider the apparent challenge of the defendant to the propriety of the trial court in allowing the State to introduce the testimony of Robert Schlittenhardt regarding the defendant cashing a $20.00 postal money order made payable to the victim of the robbery, Terry Kimsey. Schlittenhardt testified that the defendant used two identification cards showing that he was Terry Kimsey. It seems readily apparent that the State introduced the evidence in question not to show that the defendant committed another offense, i.e. Forgery, but to show that defendant had in his possession a fruit of the crime, that being the identification cards of the victim. When the defendant cashed the money order and presented the victim's identification cards, this was, in essence, a culmination of his act of robbery, and evidence of that event. The fact that within two days of the robbery the accused had in his possession the identification cards bearing the victim's name, taken at the time of the robbery, would certainly go to corroborate his testimony and to identify the defendant.

In Grimes v. State, Okl.Cr., 365 P.2d 739 (1961), this Court held:

'It is firmly established in the law that evidence of...