Roberts v. State, F-77-30

• Citation: 568 P.2d 336
• Decision Date: 23 August 1977
• Docket Number: No. F-77-30,F-77-30
• Parties: Daniel Richard 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 336

568 P.2d 336

Daniel Richard ROBERTS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-30.

Court of Criminal Appeals of Oklahoma.

Aug. 23, 1977.

An appeal from the District Court, Oklahoma County; Floyd L. Martin, judge.

John T. Elliott, Public Defender, John M. Stuart, Chief Appellate Div., Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Douglas L. Combs, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Daniel Richard Roberts, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRF-76-124, for the offense of Murder in the Second Degree, in violation of 21 O.S.Supp.1973, § 701.2. His punishment was fixed at a term of imprisonment of not less than ten (10) years nor more than life, and from said judgment and sentence a timely appeal has been perfected to this Court.

At the trial the evidence on behalf of the State established that in December, 1975, Myrtle Tipton lived at 3245 N.W. 15th Street in Oklahoma City, Oklahoma; that shortly prior to Christmas her son, Perry Paulding, and defendant, came to her home for a visit. They stayed until the Monday following Christmas at which time they planned to return to California. She went to work at 6:30 a. m. and when she returned at 4:00 p. m. her son and defendant were gone. She opened the door to Perry's bedroom and observed that the bedding was missing. The following Wednesday she went into the bedroom and discovered that the mattress, sheets, spread, quilts and pillows were also missing. She further observed small red spots on the wall and floor. She testified that she first learned of her son's death when she heard of an unidentified body, matching his description, which was found at Lake Overholser. The following night defendant called and reported that Perry had not arrived in California. The police were called after she heard the television report. They came to her home and investigated the scene. She testified that she kept a basketful of scrap macrame rope in Perry's bedroom.

Trooper Mike Grimes testified that on January 11, 1976, he received a call from his dispatcher to go to the south side of Lake Overholser. He observed a six-foot object wrapped in an olive-drab blanket, tied with manila rope at the neck, chest, waist and feet. He slightly opened the blanket and observed what appeared to be the head of a white male. He secured the scene until other officers arrived.

Edward Dean White testified that on December 29, 1975, he lived across the street from Myrtle Tipton. He observed defendant putting a rolled, tied-up mattress into the trunk of Perry Paulding's Monte Carlo.

Detective Ron Chambers testified that on January 11, 1976, he was dispatched to Lake Overholser. He made an investigation of the scene and helped unwrap the body from the blankets. The victim was only clothed in white boxer shorts and a white T-shirt. The name "D. W. Roberts" was stenciled on the shorts. The victim was lying on a purple sheet and pillow inside the blankets.

Dr. Fred B. Jordan testified that he performed an autopsy on the body of Perry Paulding. He found three stab wounds in the chest and blunt force injuries to either side of the head. It was his opinion that the cause of death was the stab wounds and the injuries to the head.

Detective John T. Boggs, of the Michigan State Police, testified that in January, 1976, he received a N.C.I.C. report to be on the lookout for a 1973 white Monte Carlo. He observed the vehicle on January 23, 1976, parked in the parking lot of a discount store. The car was kept under surveillance for approximately fourteen hours. The car was entered at approximately 2:00 a. m. the following morning, searched and impounded. Certain addresses were found within the car that subsequently led to the arrest of the defendant in a fraternity house in East Lansing.

Special Agent John Henry Campbell of the Federal Bureau of Investigation, testified that he interrogated the defendant on two occasions. The defendant was advised of his Miranda Rights and he acknowledged that he understood the same. During the first interrogation defendant stated that he was not aware that Paulding was deceased and declined to go into detail as to how he arrived in East Lansing. Defendant was later interrogated and, consented to make a statement. Defendant stated that he last saw Paulding at his mother's place and that Paulding had requested that he drive his car to California. He subsequently stated that he left Paulding at a shopping center where he met two individuals with a van. Paulding put the mattress he had removed from his mother's home into the van.

Richard E. Bisbing testified that he was a Laboratory Scientist with the Micro-Chemical Unit of the Michigan State Police; that on January 26, 1976, he processed the trunk of a 1973 Monte Carlo at the request of Detective Boggs. He found traces of Type "A" human blood in three locations within the trunk of the vehicle.

Officer John Loffi testified that he assisted in the investigation of the scene at Lake Overholser. He identified certain photographs taken at the scene and at the home of the victim's mother. He took possession of the physical evidence which was subsequently transported to the Oklahoma State Bureau of Investigation.

Melvin Hett, a Forensic Scientist at the Oklahoma State Bureau of Investigation, testified that he received State's Exhibit No. 1, containing an ironing board cover, a pink blanket and a lavender pillowcase from Officer Bruce Knox. He determined that the stains on each item were blood. He further testified that the stains on the floor tiles removed from the bedroom were also human blood. He compared the jute rope found wrapped around the body with samples of the rope removed from the bedroom and found that they had similar characteristics.

The testimony of Charles Duchain, taken at the preliminary hearing, was then read to the jury. Duchain testified that in December, 1975, he was the roommate of Perry Paulding in Encino, California; that on December 22, 1975, Paulding and defendant left California to visit Paulding's mother. Defendant called him from Albuquerque, New Mexico on December 29th and defendant arrived at the apartment in the early morning hours of December 31st. He helped defendant unload the car which contained both Paulding's and defendant's personal effects. Defendant informed him that Paulding was going to return to California with two people in a van. Paulding took a mattress from his mother's house and placed it in the van. He testified that defendant left California after he told him that someone was going to come by and pick up Paulding's car.

Ann Reed, a Forensic Chemist with the Oklahoma State Bureau of Investigation, testified that she received a blood sample of the victim from Dr. Jordan. She transported it to the laboratory, assigned it an identification number "76-417," and the sample was placed in a locked refrigerator.

Melvin Hett was recalled and testified that he examined the laboratory sample 76-417 and in his opinion the blood contained therein was group "A."

Larry Paulding, the victim's brother, testified that he went to Encino, California after the funeral to obtain Perry's effects. He identified State's Exhibit No. 54 as his brother's wallet.

Myrtle Tipton was recalled and identified the ironing board pad and the lavender pillowcase contained in State's Exhibit No. 1, as her personal property.

For the defense, defendant testified that he met Perry Paulding in the Los Angeles County Jail. He was being held on a parole violation and Paulding was being held on a drug charge. Paulding offered to find him a job and a place to stay when he was released. He was released from jail approximately a week later and started living with Paulding and his roommate, Charles Duchain. Paulding informed him that he was "gay" and he told Paulding that he would not engage in such activities. He accompanied Paulding to his mother's residence in Oklahoma City. They planned to return to California on the Sunday after Christmas. Paulding received a telephone call and decided to wait until the following day. Paulding told him that he was going to ride back to California "with some other dudes." He put the mattress in the car at Paulding's request. They drove to a shopping center where Paulding met the two males. Paulding placed the mattress in a dark-colored van. Paulding told him to drive the car back to California and wait for him. He had car trouble in Albuquerque and called Charlie Duchain. He advised Duchain that Paulding was going to ride back with two other persons. He drove to Encino and stayed there about a week and a half. When Paulding did not return as expected, he attempted to file a missing persons report with the police. He was advised that a report could not be filed if a person was over the age of eighteen years. He left California to go to Michigan because he did not want the bank to pick up Paulding's car. He left the car parked at the shopping center because of car trouble.

Defendant first asserts that the trial court erred in allowing the introduction into evidence the testimony of Myrtle Tipton relating the substance of a telephone conversation between her and Charles Duchain, which was hearsay. The testimony of which defendant now complains appears in the trial transcript, page 19, as follows:

"Q. (By Mr. Geb) Yes, just tell, Miss Tipton, only what you did to find your son?

"A. I didn't get that.

"Q. What did you do to try to find your son?

"A. Mr. Duchain called me. He was alarmed because Perry hadn't gotten out there and so we just kept the conversations going back and forth to see if anyone had any

"MR. TUDOR: Your Honor, I object to that. It is purely hearsay.

"THE COURT: Well, I haven't heard any conversations related so far. Overruled."

We are of the opinion that the witness' response does not fall within the...