Parrott v. State

• Decision Date: 09 April 1974
• Docket Number: No. F--73--255,F--73--255
• Citation: 522 P.2d 628
• Parties: Larry PARROTT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 628

522 P.2d 628

Larry PARROTT, Appellant, v.The STATE of Oklahoma, Appellee.

No. F--73--255.

Court of Criminal Appeals of Oklahoma.

April 9, 1974.

Rehearing Denied May 28, 1974.

Burke Mordy, Ardmore, for appellant.

Larry Derryberry, Atty. Gen., Robert McDonald, Asst. Atty. Gen., William Thiebaut, Jr., Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Larry Parrott, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Carter County, Case No. CRF--70--161, for the offense of Burglary Second Degree; his punishment was fixed at three (3) years imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

At the trial, Chris Gers testified that on August 7, 1971, he was employed as the golf professional at Dornick Hills Golf and County Club which was located north of the City of Ardmore, Oklahoma.He indicated that his duties as golf pro included the operation of the golf shop which was a retail outlet for golf merchandise and other general athletic items.Mr. Gers testified that the building that housed the golf shop was secure when he left it on the evening of August 6, 1971.He further testified that he received a call early in the morning of August 7, 1971, notifying him that a window had been broken out of the golf shop.Upon going to the scene around 2:30 that same morning, he discovered that the window upstairs above the pro shop in the ladies locker room had been broken out and a glass pane had been knocked out of an interior door within the building.

Jimmy Stewart testified that on the night of August 6, 1971, he met the defendant at a bar in Ardmore.He indicated the two of them left in his 1965 Chevrolet, bearing license tag number CE--3910, and went to another bar where only the defendant went in and after a short period of time came back out to the car with Billy Ray Marr.The three of them then left the club together in Stewart's car, purchased some whiskey and cokes and then, while drinking, started driving to another club.While enroute, Stewart indicated that he turned off at Dornick Hills and drove past the country club.Stewart testified that Billy Ray Marr stated that the building at the club looked like it would be easy to get into.He further testified that he stopped his car and let the defendant and Billy Ray Marr out of the car.He then drove his car up to the parking lot and stayed in it.While he was sitting in the parking lot, Stewart indicated that Wayne Warthen, Criminal Investigator for the District Attorney's office, Twentieth Judicial District, came by and shined his spotlight on his license tag.Shortly thereafter, the defendant and Marr came back to the car and Marr stated, 'We got into the building.'As they were leaving, Stewart testified that the defendant stated, 'I've got to go back . . . we've got to go back and get out fingerprints off that glass.'Stewart also testified that as they were leaving they were pulled over by the police.

Ed West testified that he was a detective with the Ardmore Police Department, and that he was so employed on August 7, 1971.He testified that on that date he responded to a call concerning an alleged breakin at the Dornick Hills Golf and Country Club.His testimony was substantially the same as that of Chris Gers.He further testified that while he was at the scene he dusted the area for fingerprints.He indicated that he later had a conversation with the defendant at the county jail and at the time of that conversation he advised the defendant of his rights and also told him that he had dusted for and picked up some prints at the scene.

Wayne Warthen testified that he was a Criminal Investigator for the District Attorney's office.He stated that during the early morning hours of August 7, 1971, he was in the area of the Dornick Hills Country Club and that he observed a 1965 Chevrolet pass in front of him with three subjects in it.He further testified that as he drove toward the country club he met the same car again with the three subjects inside.He indicated that he next saw the car parked in the Dornick Hills Golf and Country Club parking lot about 75 yards from the pro shop.He then drove into said parking lot and copied the license number from the vehicle parked there and the number was verified as that of the vehicle owned by Jimmy Stewart.Warthen further testified that the defendant had asked him if Ed West and Dean Plank were qualified to lift fingerprints, and also stated that he(the defendant) did not think they were qualified and not being qualified they could not testify against him concerning any fingerprints.

Dale Phillips testified that he was a patrolman with the Ardmore Police Department on August 7, 1971.His testimony indicated that on the date in question he received a call to go to the Dornick Hills area to check on a suspicious vehicle bearing license tag number CE--3910.He indicated that as he proceeded to the area, he met the described vehicle.He turned around, caught the vehicle and pulled it over.He stated that there were three people in the automobile and Jimmy Stewart was identified as the driver.

Merle Salthouse testified that he was Deputy Sheriff of Carter County.He testified that he was with the defendant in January of 1973, and at that time he advised the defendant of his rights.He further testified that at the same time, the defendant indicated that he had previously been advised of his rights.Following a Jackson v. Denno hearing as to voluntariness, Salthouse testified that as he was bringing the defendant back from Love Field in Dallas, Texas, to the Carter County jail, the defendant stated, '. . . I'll probably get twenty-five years off of this.'He also indicated that the defendant said, 'I was in the building . . . I didn't take anything, they can't put a burglary charge on me for not taking anything.'

Joe Litchfield testified that he held a Deputy Sheriff's commission in Carter County and that he occasionally assisted the Sheriff's and District Attorney's offices in routine matters.The witness indicated that he, along with Wayne Warthen, picked up the defendant in Klamath Falls, Oregon.He further testified that Warthen asvised the defendant of his constitutional rights at Klamath Falls.Litchfield further testified that the defendant stated several times that he did not want to go to the penitentiary for breaking a two dollar window.He also stated, in response to a statement made by him, that he considered the defendant innocent until proven guilty, the defendant stated, 'Well, I'm guilty, I did break the two dollar window, but I didn't steal anything.I just couldn't get the door open.'The witness testified that at the time the defendant made these particular statements to him, they were on a commercial airliner and the defendant had had at least one, but not more than three, alcoholic beverages.Litchfield indicated that he did not feel that the defendant was intoxicated at any time during their return.

Joyce Hughes testified that on August 7, 1971, she was going with the defendant and that the defendant came to her home on the morning of August 7th.She testified that she had seen the defendant with Jimmy Stewart the night before, and that when the defendant came to her home on that morning that he was drunk.

Billy Ray Marr testified that he was presently in the custody of the Department of Corrections and that he had five previous convictions, plus a parole violation.His testimony reflected that of Jimmy Stewart.Marr indicated that at the country club he got out of the car and asked the defendant to come with him.Upon asking a second time, the defendant got out of the car and went with him.He further testified that he climbed up on the roof of the pro shop and broke out a window.He stated that the defendant was, at first, hesitant, but then agreed to enter the shop and he assisted the defendant up on the roof and the two of them entered the building.He then testified that the two of them went downstairs and he attempted to break in another door.He indicated that he was unable to break the second door and the defendant left the building and he followed.He also testified that he entered the building with the intention of stealing anything that he could find, although he actually did not take anything.Marr further testified that the defendant was drunk at the time they entered the building.

It is argued by defendant, in his first proposition of error, that the trial court erred in overruling his Motion for Mistrial made during the voir dire examination of prospective jurors.This Court notes that the burden of establishing that the prospective jurors' statements were prejudicial to his rights is placed upon the defendant.Rooks v. State, Okl.Cr., 417 P.2d 939(1966).This the defendant has failed to do.The trial record reflects numerous admonishments during voir dire and throughout the trial, to the jury to disregard any statements not in evidence.In McCormick v. State, Okl.Cr., 464 P.2d 942(1969), this Court stated:

'It is fundamental that in passing on a Motion for Mistrial the finding of the trial court will not be disturbed in the absence of evidence that it abused its discretion.'

We find no abuse of discretion by the trial court and accordingly, we find this assignment of error to be without merit.

Defendant urges, in his second proposition, that the trial court erred in permitting into evidence certain statements made by the defendant following consumption of alcoholic beverages.Defendant further urges that it was error for the law enforcement officer to fail to advise the defendant to discuss the matter with his attorney prior to making any statement.Prior to the admission of the testimony relating to statements made by the defendant, the trial court conducted a full hearing concerning the voluntariness of these statements, out of the presence of...