Roberts v. State

• Decision Date: 29 April 1977
• Docket Number: No. F-76-941,F-76-941
• Citation: 571 P.2d 129,1977 OK CR 166
• Parties: L. R. ROBERTS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 129

571 P.2d 129

L. R. ROBERTS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-76-941.

Court of Criminal Appeals of Oklahoma.

April 29, 1977.

Rehearing Denied Nov. 28, 1977.

Certiorari Denied Nov. 14, 1977.

See 98 S.Ct. 485.

An appeal from the District Court, Tulsa County; Margaret Lamm, Judge.

L. R. Roberts, appellant, was convicted of the offense of Attempted Robbery With Firearms, After Former Conviction of a Felony; was sentenced to sixty-five (65) years' imprisonment, and appeals.

AFFIRMED.

Clarke L. Randall, App. Public Defender, Tulsa County, for appellant.

Larry Derryberry, Atty. Gen., Michael P. Kane, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Judge:

Appellant, L. R. Roberts, hereinafter referred to as defendant, was charged by information in Case No. CRF-76-715 with the crime of Attempted Robbery With Firearms, After Former Conviction of a Felony, in the District Court, Tulsa County, in violation of 21 O.S.1971, § 801. Defendant was tried by jury and represented by counsel. The jury returned a verdict of guilty, assessing punishment at sixty-five (65) years' imprisonment in the State penitentiary. From said judgment and sentence a timely appeal has been perfected to this Court.

Although confusing, the facts are substantially as follows. The State's first witness, Larry Jackson, stated that on the 14th day of January, 1976, between 1:00 and 2:00 a.m., he, Wayne Rogers and Marion Rowe proceeded by car to the 4200 block of North Harvard, Tulsa, Oklahoma, in order to collect money owed by the defendant to Wayne Rogers. The defendant was not home so they left. Returning an hour later and still finding the defendant absent, they parked in his driveway. At this time Rogers was sitting behind the wheel and Jackson was sitting in the passenger seat in the front. Soon, another vehicle, containing the defendant among others, pulled into the driveway and parked directly behind the Rogers' car. Suddenly, two armed men exited this vehicle and approached the car in which Jackson, Rogers and Rowe were sitting. One of the men approached Rogers while the other man with shotgun in tow confronted Jackson, commanding him to "give him all his money." As Jackson attempted to comply with this demand the shotgun was discharged and he was wounded.

The State's second witness, Don Rodney McNeal, is a resident of the Oklahoma State Penitentiary. On the evening in question he was the driver of the vehicle containing Vickie McNeal, his sister, Jessie Campbell and the defendant. Approaching the defendant's house at about 12:30 p.m. he saw Rogers' car, containing three occupants, parked in defendant's driveway. McNeal turned into this driveway and parked directly behind the Rogers' car. Marion Rowe exited the front vehicle, walked back and conversed briefly with the defendant. After Rowe departed the defendant stated, "Well, are we gonna rob him?"

According to McNeal's testimony, the defendant repeatedly commanded his fellows to rob the Rogers' car occupants. Pursuant to defendant's persistent urgings, McNeal and Jessie Campbell exited their vehicle while defendant remained seated. McNeal approached the passenger side of the vehicle in front and pointed a shotgun at Jackson. Campbell stood on the driver's side and advised the occupants to give him their dope and money. Suddenly McNeal discharged his shotgun and wounded Jackson. McNeal and Campbell then returned to their car and drove away, dropping the defendant off at his house where he was heard to say that he "was going to go get the dope." McNeal next saw the defendant some 45 minutes later at the defendant's house. Soon driving around together again, this time with Michael Fox and Vanessa Sadler, the defendant told McNeal that "everything was cool and not to worry about anything."

The State's third witness was Vanessa Sadler, the common law wife of McNeal. While driving around with the defendant in the early morning hours of January 14, 1976, she overheard him tell McNeal to be cool, not to start talking and that everything will be okay. Also the witness heard the defendant respond "no" to a question propounded by McNeal as to whether he had obtained any dope or money from the three on the driveway.

The State's fourth witness, Vickie Lynn McNeal, testified she was in the car with the defendant, her brother, McNeal and Campbell, on the 14th day of January, 1976, when they observed a car already parked in the driveway as they approached defendant's house. After pulling into the driveway, Rowe, an occupant of the Rogers' car, came to their car and conversed with defendant. The defendant inquired of Rowe whether McNeal and Campbell could rob them and whether they had any guns. With Rowe returning to the other vehicle, the defendant continued to insist that McNeal and Campbell rob them. When asked why the defendant did not want to commit the act, the witness stated that the defendant was concerned that the occupants of the car knew him. She stated that Campbell and McNeal exited the vehicle with Campbell carrying a handgun and McNeal a shotgun. A minute later she heard a shot. As Campbell and McNeal hurriedly returned to the car, the defendant got out of the car with a gun in hand saying he was going to get the dope.

At this time the State rested.

The defendant demurred to the evidence, which was overruled, and the defense called as its first witness, Marion Rowe.

Rowe testified that he and defendant held no conversation during the early morning hours of January 14, 1976, concerning an attempted robbery of Wayne Rogers and Larry Jackson. On cross-examination Rowe testified that he had gone to the defendant's house to borrow money. He admitted having told Detective Charles Sasser of the Tulsa Police Department that he had gone to the defendant's house for a reason other than to borrow money. Rowe admitted convictions for burglary, armed robbery and possession of marihuana. Witness Rowe identified State's Exhibit C-3 as a statement he had given to the Tulsa Police Department, in which statement he had said that the defendant had discussed the robbery with him.

The second witness for the defense was Jessie Campbell, who, although charged as a co-defendant, had earlier pled guilty. He denied having received encouragement from the defendant to perpetuate the robbery. On cross-examination, Campbell denied the veracity of any contradictory statements given to the Tulsa Police admitting defendant's participation.

The State called Detective Charles Sasser of the Tulsa Police Department as a rebuttal witness. On the 14th day of January, 1976, he took a statement from Campbell implicating defendant's participation in the attempted robbery. He testified that Campbell appeared to be calm and did not seem to be under the influence of any narcotics or alcohol. He further testified that Campbell read the statement, alluded to by the State, before signing it.

As his first assignment of error, the defendant maintains that he was denied effective assistance of counsel because of the mail surveillance policy maintained by the Tulsa County Sheriff. We must disagree. In Goforth v. United States, 314 F.2d 868 (10th Cir. 1963), that court held that the constitutional guaranty of assistance of counsel means effective assistance as distinguished from bad faith, sham, pretense or want of opportunity for conference and preparation.

Apparently, defendant's proposition of error speaks to the notion that the sheriff's surveillance of correspondence between the defendant and one of his attorneys denied effective assistance of counsel. The defendant was represented at trial by two lawyers, Mr. Glen Rawdon and Mr. Caesar Latimer. Both attorneys represented defendant throughout the proceedings. The record clearly shows that the defendant's counsel argued strenuously on his behalf, made appropriate objections and conducted the trial in a professional, competent manner.

Further, the practice of allowing penal institutions to censor mail in the interest of safety or security, subject to certain restrictions, remains a viable one. 47 A.L.R.3d 1150. Mr. Rawdon, co-counsel for the defendant, advised the court that inspection of defendant's mail hampered him in his representation. However, the court advised Mr. Rawdon that his Tulsa based co-counsel, Mr. Latimer, had made numerous appearances in her court on the defendant's behalf. In Haas v. United States, 344 F.2d 56 (8th Cir. 1965), a similar proposition was rejected wherein the court, recognizing the legitimate interest of penal authorities in mail surveillance for security purposes, found that the defendant and his counsel had every opportunity for communication. Citing, Haas v. United States, supra, the Ninth Circuit rejected another similar proposition in Ramer v. United States, 411 F.2d 30 (1969). In that case the defendant contended that mail censorship by prison authorities effectively deprived him of the right to counsel as guaranteed by the Sixth Amendment. The court there found that the defendant's counsel and successor counsel had ample opportunity for private conferences with defendant so as to prepare both for trial and pre-trial motions. Likewise, the court found that since the defendant's attorney was aware of the mail surveillance policy no confidential matters were disclosed in the censored correspondence. In the instant case, Mr. Rawdon's naked assertion that the mail surveillance policy inconvenienced him will not rise to the level of constitutional violation, especially in view of his co-counsel's proximity to defendant showing ample opportunity for attorney-client communications.

The defendant was afforded effective and competent representation by counsel. Any mail surveillance which may have occurred did not hamper or interfere with his representation. Since defendant was afforded effective and competent counsel as guaranteed by 22 O.S.1971, § 464, the Constitution of the United States, and the Oklahoma...