Reid v. State, A--15391

• Decision Date: 21 October 1970
• Docket Number: No. A--15391,A--15391
• Citation: 478 P.2d 988,1970 OK CR 149
• Parties: Charles Edwin REID, 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 988

478 P.2d 988

Charles Edwin REID, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15391.

Court of Criminal Appeals of Oklahoma.

Oct. 21, 1970.

Rehearing Denied Jan. 21, 1971.

Syllabus by the Court

1. To justify a continuance the burden is on movant claiming illness of self, a witness or attorney, to make a proper showing, and whether the continuance should be granted depends on the circumstances, the determination of which rests in the sound discretion of the trial court.

2. Evidence found to be insufficient to show that the trial judge abused his discretion in overruling Motion for Continuance.

3. Where no competent evidence was offered to show that defendant was under sedation to the extent that he could not aid in his defense, the trial court did not err in refusing to grant a continuance.

4. Record of voir dire examination examined and HELD voir dire conducted in conformity with Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770.

5. It is not error for the trial court to fail to give an instruction concerning a statement which was exculpatory as concerned defendant; especially when no such instruction was requested.

6. Even though defendant has appointed or retained counsel, he can still consent to be questioned in the absence of his counsel.

7. Where the evidence amply supports the verdict of the jury and the proof of guilt is overwhelming, and the record is free of any error which would justify modification or reversal, the judgment and sentence rendered in accordance with the verdict of the jury will be affirmed.

Appeal from the District Court of Kay County; Lester R. Maris, Judge.

Charles Edwin Reid was convicted of the crime of Murder, was sentenced to death in the electric chair, and appeals. Affirmed.

Leonard G. Geb and Jack N. Shears, Ponca City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Max A. Martin, Asst. Atty. Gen., for defendant in error.

BUSSEY, Judge.

Charles Edwin Reid, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Kay County for the crime of Murder; his punishment was assessed at death in the electric chair, and he appeals.

The record reflects that Ervin Clifford Sinclair, the deceased, was operating a Gulf Service Station located just off Interstate 35 near Braman, Oklahoma, on the morning of September 9, 1968. He was observed to be present in the station on that morning at 2:00 a.m. Witness Allen Lane entered the service station at approximately 2:45 on the morning of September 9, 1968 with David Morris, and found the body of the deceased and Morris summoned police to the station. All of the witnesses who viewed the deceased's body at the crime scene testified that his face was covered with blood and that they could not observe any specific wounds. The medical examiner testified that the deceased's body had six bullet holes in the head and that the wounds could have been made by a .22 caliber weapon. It was his opinion the victim died from multiple gunshot wounds of the head.

The evidence further disclosed that the sum of $130--$135 had been taken from the cash register between 2:00 a.m. and 2:45 a.m. on September 9, 1968. It was established that shell casings found at the scene were fired in the rifle identified as State's Exhibit 18, and that portions of a bullet found in the head of the victim were also fired from this rifle.

The defendant was arrested on September 10th at approximately 5:00 p.m. on the McGuire's father testified that he returned to his home on the morning of September 9, 1968 around 2:00 a.m. and that the rifle was not on the porch and that his son, Tommy, was asleep in the front room on the couch; that after he had retired he was alerted by a barking dog some time after 3:00 a.m. and that he observed a pickup truck leaving from the front of his house. Susan McGuire testified that she found the rifle (State's exhibit 18) on the front porch of the McGuire home around 8:15 on the morning of September 9, 1968.

basis of information provided by Darlene Hill. At the time of his arrest he was wearing shoes stained with blood which matched the blood type of the deceased. The State's evidence further established that on September 8th the defendant had in his possession a .22 caliber nylon rifle (State's exhibit 18), which he had borrowed from Tommy McGuire, and that during the day defendant, McGuire and others had target practiced; that defendant drove McGuire home after the target practice and left with the rifle in his pickup truck.

The evidence further disclosed that approximately five hours before the homicide occurred, the defendant was broke and borrowed $5.00 from a tavern owner, but that 45 minutes after the time of the homicide defendant went to the home of Darlene Hill and gave her $30.00 and that she observed a large amount of money left in his billfold. The defendant then asked to spend the remainder of the night in her home but she refused and he later drove to the apartment of Doris Fay Nichols and Gail Ann Moorman, and that they refused to allow him to spend the night.

The evidence further disclosed that at approximately 10:00 a.m. on the morning of the homicide, defendant paid $20.00 to Robert D. McGee; that defendant paid Mrs. L. E. Ellison $45.00 some time be tween 10:00 a.m. and 10:00 a.m. on that same date; and sales tickets found in defendant's pickup indicated purchases of $12.98 on September 9, 1968.

At the time of defendant's arrest he was advised of his constitutional rights; he was then taken before Judge Maris and advised of his constitutional rights by agents of the Oklahoma Bureau of Investigation and Sheriff Coffelt, and he gave a statement after stating that he had nothing to hide and he might as well give the statement.

The statement, in pertinent substance, was that the defendant had driven to the scene of the homicide where he observed 'a car zipping out of there real fast and some colored guys. Had one head light out. This had 4 head lights and one was out. Going up on the Interstate.' He entered the service station and observed that the cash register drawer had been opened. He remained at the service station several minutes during which time he found the body of the deceased lying in a pool of blood; he stated that he lifted the deceased's head and observed a bullet hole between the eyes; that he got the blood on his glove which was later found on the steering wheel of his pickup truck; and he accounted for the blood on his shoes by stating that he had stepped in a pool of blood at the scene of the homicide. He further stated that he drove at a high rate of speed to the home of Darlene Hill and paid her $30.00 which he had taken from her earlier. He denied committing the homicide and stated, 'I just hope you work as hard to prove I'm not guilty as you do to prove me guilty.'

The defendant did not testify in his own behalf but offered testimony of Marvin Looper and Joan Looper who testified, in substance, that the Loopers had given a birthday party for Marvin's sister, Rita Looper, on September 16, 1968, at which intoxicating beverages were drunk; that during the course of the evening Tommy McGuire had stated to them that he (McGuire) and not Reid, had committed the robbery and murder of Mr. Sinclair on the early morning of September 9th; that McGuire had changed clothes with the defendant and that was how the blood got on Thomas Key was called in rebuttal for the State. According to the Loopers, Tommy McGuire stated that he tried to wipe up some of the blood at the scene with a sheet he found in defendant's pickup. Mr. Key testified that the only sheet that was involved in the investigation was one which was found at the adjacent motel and which had only one small spot of blood on it. Also, according to the Loopers, Tommy McGuire stated that he fired one shot through the service station window. Mr. Key testified that none of the outside windows of the station had bullet holes in them.

defendant's clothing. Anthony Vitacolonna testified that on September 8, 1968, defendant entered his bar at about 11:10 p.m. and Darrell Landers testified that on September 8th he paid defendant's mother $60.00.

William Joe Thele was also called in rebuttal for the State. According to the Loopers, Tommy McGuire stated that he and defendant rode around together drinking on September 8th. William Joe Thele testified that he was with Tommy McGuire about 10:00 p.m. until 11:25 p.m. on that date and that they saw defendant at Al's Drive-in in Blackwell at about 10:00 p.m.; however, when they left Al's Drive-in, defendant was still there. He further testified that he took Tommy McGuire home at about 11:25 p.m.

Susan and Jackie Wayne McGuire both testified in rebuttal that their brother, Tommy, came home around 11:15 p.m. on September 8, 1968, and did not leave thereafter.

From the foregoing recital of facts it is readily apparent that the evidence on behalf of the State amply supports the verdict of the jury. We will, therefore, consider all of defendant's assignments of error urged on appeal, but not necessarily in the order in which they were presented in his brief.

It is first contended that the trial court abused his discretion in refusing to grant a continuance prior to trial. The proceedings on this application fully appear in the record at pages 3 and 4, as follows:

'MR. GEB: Comes now the defendant, Charles Edwin Reid, and moves for a continuance for the reason that he was brought to this jurisdiction only yesterday, approximately at six o'clock, and not made available for the defendant to prepare his case * * * brought here from Supply, Oklahoma; and for the further reason that after the defense attorney did talk to the defendant, that he observed defendant was in serious physical condition and under constant medication and because of ill health, unable to go to trial, to the prejudice of the defendant. And...