Sanders v. State, F--75--431

• Decision Date: 03 November 1976
• Docket Number: No. F--75--431,F--75--431
• Citation: 556 P.2d 611
• Parties: Richmond SANDERS, a/k/a Richard Sanders, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 611

556 P.2d 611

Richmond SANDERS, a/k/a Richard Sanders, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--431.

Court of Criminal Appeals of Oklahoma.

Nov. 3, 1976.

Appeal from District Court, Oklahoma County; Raymond Naifeh, Judge.

Richmond Sanders, a/k/a, Richard Sanders, appellant, was convicted for the offense of Murder in the First Degree; was sentenced to death, and he appeals. Sentence MODIFIED TO LIFE IMPRISONMENT, and as MODIFIED the Judgment and Senence is AFFIRMED.

Stephen Jones, Jones & Gungoll, Enid, Sylvia Marks-Barnett, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Frank Muret, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Presiding Judge:

The appellant, Richard Sanders, hereinafter referred to as the defendant, was charged, tried and convicted by jury trial in the District Court, Oklahoma County, Case No. CRF--74--3170, with the offense of Murder in the First Degree in violation of 21 O.S.Supp.1973, § 701.1. His punishment was fixed at death. From said judgment and sentence and death warrant, an automatic appeal has been perfected to this Court.

The testimony as presented at trial was revealed that on the night of September 6, 1974, at approximately 11:15 p.m., the decedent, Bobby Joe Martin and his brother Jack Martin entered the Black Caesar's Club on North Walnut Street in Oklahoma City. They ordered a beer, and after playing a game of pool, sat down to drink the beer. The defendant approached the two men, pulled a pistol out of his coat pocket, pointed it at Bobby Joe Martin, and said 'I am going to kill you,' and 'I don't like white folks no way.' Mr. L. D. Pete, the manager of the club, rushed over to the three men. His wife, the owner of the club, came from the kitchen and said 'we ain't going to have that in here,' whereupon the defendant dropped the pistol to his side and started toward the door. As he went out, the defendant commented to the two Martin brothers 'I will get you when you come outside.' Neither Mr. Pete nor Mrs. Pete were concerned over the incident because they thought the defendant was probably drunk.

The Martin Brothers left Black Caesar's and walked across the street to the Jungle Club. After the two men drank some beer, they left the Jungle Club around 1:00 a.m. As they walked out of the club, they saw several men standing up against the outside wall of the establishment, one of whom Jack Martin recognized as the defendant by his maroon sport's jacket. The defendant approached them pointing a gun at them. Several men standing behind the Martins demanded their money. Upon refusing, Jack Martin was hit from behind, which caused him to wheel around. Several shots were fired and Bobby Joe Martin was hit in the neck by one bullet. The brothers were robbed of $32.00 and a gold watch, and Bobby Joe was fatally wounded.

On the afternoon of September 7, 1974, after receiving an anonymous tip at the Jungle Club, Officers Ronnie Conners and Shirley Cox, arrested the defendant on Northeast 8th Street, Oklahoma City. The defendant had a wine colored coat thrown over his shoulder at the time he was arrested, and he had $20.00 on his person. The arresting officers also took possession of a small gun loaded with six live rounds of ammunition.

On September 15, 1974, Bobby Joe Martin died at University Hospital in Oklahoma City. He had been kept alive since late evening of September 7, 1974, by artificial means. Dr. Thomas Howard III and Dr. Tommy Hewlett determined the cause of death to have been complication of the gunshot wound received in the incident on September 7, 1974.

Ray Lambert, a Firearms Expert, tested the bullet taken from the decedent's body and a bullet taken from the leg of a bu-stander to the incident, and compared them to the gun found on the defendant. Because of the imprecise design of the gun, his ballistics tests were inconclusive. However, the bullets examined were from the same caliber as the defendant's gun, and the two bullets had similar markings.

The defendant testified on his own behalf and denied the conversation with the Marin brothers. He did not see any fight, nor took part in any robbery or shooting on September 7, 1974. He also denied having a pistol in his possession on the night in question.

Because of the nature of the defendant's first five assignments of error, the sixth and seventh assignments of error will be considered first.

As his sixth assignment of error, the defendant contends that the evidence was insufficient to sustain a conviction of murder in the first degree.

The defendant was convicted of Murder in the First Degree under 21 O.S.Supp.1973, § 701.1. The essential elements of the crime charged are: (1) a homicide; (2) perpetrated without authority of law; (3) perpetrated with a premeditated design to effect the death of the person killed; (4) perpetrated during the commission of an armed robbery.

The defendant does not quarrel with the fact of the killing of Bobby Joe Martin, or with the fact that a robbery was committed. Indeed, the uncontradicted testimony of Jack Martin, the brother of the deceased, established that the killing took place during an armed robbery of their persons. The defendant does question whether there was sufficient proof of premeditation or whether there was sufficient evidence to link him to the offenses committed.

This Court has held on numerous occasions, that where there is a direct conflict in the evidence or it is such that different inferences may be properly drawn, the jury's determination will not be interfered with on the grounds that the evidence is insufficient to sustain the conviction. Moreover, this Court has held many times that where there is competent evidence in the record from which the jury might reasonably conclude that the defendant is guilty, the case will not be reversed because of the insufficiency of the evidence. See, Williams v. State, Okl.Cr., 373 P.2d 91 (1962); Brewer v. State, Okl.Cr., 452 P.2d 597 (1969), and Thompson v. State, Okl.Cr., 467 P.2d 523 (1970).

While much of the evidence in this case is circumstantial, this Court has often held that when circumstantial evidence is relied upon to prove the crime, it is not required that the circumstances proved shall exclude all possibility of innocence, but that reasonable inferences may be drawn therefrom with the same probative effect as direct testimony. See, Logan v. State, Okl.Cr., 493 P.2d 842 (1972), and Jones v. State, Okl.Cr., 523 P.2d 1126 (1974).

In the instant case, Jack Martin and the club manager testified to the threats at gun point made on the life of Bobby Joe Martin by the defendant. The eyewitness to the robbery, Jack Martin, testified that the defendant was present at the scene of the robbery and again pointed the gun at Bobby Joe Martin. Despite the fact that there is no direct evidence that the defendant pulled the trigger, there is sufficient circumstantial evidence to show that he had the only gun at the scene of the robbery and that Bobby Joe died as a result of a gunshot wound received in a struggle during the course of the robbery. While the defendant may not have actually taken property from the Martin brothers, one who aids or assists in the commission of a felony must be prosecuted and punished as the principal felon. See, 22 O.S.1971, § 432.

The question next becomes whether the evidence established premeditation. In 21 O.S.1971, § 703, we find that:

'A design to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is carried into execution.'

A companion statute, 21 O.S.1971, § 702 states:

'A design to effect death is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.'

The evidence reasonably proved that the defendant threatened the life of Bobby Joe Martin, that he had a gun in his possession, and that he pointed it at the decedent on two occasions, the last time being a moment before the shooting. Generally, a person is presumed to know and intend all the natural, probable, and usual consequences of his act. See, Schmitt v. State, 57 Okl.Cr. 102, 47 P.2d 199 (1935), and Andrews v. State, Okl.Cr., 455 P.2d 741 (1969).

We have carefully examined the record and for the reasons stated, find no merit in the defendant's contentions.

The defendant assigns as his seventh proposition, that it was error for the trial court to refuse to instruct the jury on the lesser included offenses, Murder in Second Degree, Manslaughter in the First Degree, and Manslaughter in the Second Degree.

Title 21 Oklahoma Statutes, Supp.1973, Section 701.3 states in part:

'In a jury trial for murder in the first degree, nothing in this section shall preclude the trial judge from instructing the jury regarding lesser and included offenses and lesser degrees of homicide if the evidence warrants such instructions; but in every instance where an instruction authorizes the jury to consider lesser and included offenses and lesser degrees of homicide, the judge shall state into the record his reasons for giving the instruction based upon the evidence adduced at trial.'

It is within the trial court's discretion and responsibility to consider the evidence and to determine whether other such evidence exists to warrant instructions of a lesser degree. See, Sharp v. State, Okl.Cr., 407 P.2d 593 (1965). Therefore, the question on appeal is whether the trial court abused its discretion.

The pertinent part of 21 O.S.Supp.1973, § 701.2 is as follows:

'Homicide is murder in the second degree in the following cases:

'1. When perpetrated without authority of law, and with a premeditated design to effect the death of a person, or of any other human being, but by an act not enumerated in the preceding section;

'* * *

'3. When perpetrated without any design to effect death by a person engaged in the commission of any felony other than the felonious acts set out in ...