Sands v. State, F--74--816

Decision Date24 September 1975
Docket NumberNo. F--74--816,F--74--816
Citation542 P.2d 209
PartiesAlvin Daniel SANDS, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

BUSSEY, Judge:

Appellant, Alvin Daniel Sands, hereinafter referred to as defendant, was charged and tried conjointly with co-defendants Kenneth Dale Tiger, Charles St. Germaine, and Orlin Dale Webster, and was convicted in the District Court, Oklahoma County, Case No. CRF--73--3339, for the offense of Robbery with Firearms in violation of 21 O.S.1971, § 801. His punishment was fixed at fifteen (15) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

The State's first witness was Donald M. Whitton, the clerk of the Crestwood Liquor Store which was robbed on the evening of November 17, 1973. The witness testified that at approximately 8:05 p.m. one man entered the store and asked for tequila. The tequila was behind the clerk and when he turned around to point to the tequila, two other men, both carrying rifles, entered the store. The witness further testified that the first man who came in carrying a rifle, actually the second man through the door, pointed a gun at him and told him, 'This is a holdup.' According to the witness' testimony the man who told him it was a holdup held a gun on him while the other two men went through the cash register. The witness also testified that a Mrs. Maney, the wife of the owner of the liquor store, was present at the time of the robbery. She was in the back of the store cleaning and was unaware of the robbery which was taking place. The robbers did not realize that anyone else was in the store until Mrs. Maney moved some bottles which created noise heard by the robbers who were still out front. The witness told the men that the lady was in the back, at which time the men forced the clerk to the back part of the store. The clerk and Mrs. Maney remained in the back of the store until the robbers had finished cleaning out the register and departed from the premises.

The witness and Mrs. Maney did not see the car that the assailants used. However, Whitton, the clerk, was able to identify the first gunman, the one who told Whitton, 'This is a holdup,' as the defendant Alvin Daniel Sands. Whitton also stated while under direct examination, that the gun which Sands held on him was the same kind of gun he had become familiar with while in Viet Nam, and that he therefore had no trouble identifying a gun used in the robbery as the same kind of gun presented as evidence at the trial.

This witness further testified that all three robbers were Indians; that they took about $120.00; that the robbery lasted about two minutes; and that the men cut the telephone line before leaving the store.

In a lineup the following day, Whitton positively identified the defendant Sands as the armed robber who pointed the gun at him, informed him of the holdup, and forced him into the back room.

The State's next witness was Mrs. Josephine Maney, the wife of the owner of the liquor store, who was in the back of the store during the first part of the robbery. Mrs. Maney testified substantially the same as did Donald Whitton. She testified that: the defendant Sands was positively the man who forced Whitton to the back of the store and held the gun on them; the weapon marked as State's Exhibit No. 1 was similar to the one used by Sands; she could not tell how the defendants got away, whether by car or by foot.

The State presented as its third witness, Brent Gaylon, an officer with the Oklahoma City Police Department, who was on duty the night of November 17, 1973, into the morning hours of November 18, 1973. Officer Gaylon testified that earlier that evening, November 17th, he had investigated the robbery of the Crestwood Liquor Store. At approximately 12:20 a.m. on the morning of the 18th, he made a routine check of the Rouge Lounge. Officer Gaylon also testified that while making this routine investigation in the area, commonly known as the Indian ghetto, he was keeping in mind the description of the three armed robbers who had earlier that evening robbed the Crestwood Liquor Store. At the Rouge Lounge, Officer Gaylon observed the four co-defendants, though he did not know of their alleged involvement in the robbery at this time. Three of the men, Tiger, Sands and Webster, were in the lounge and St. Germaine, who Officer Gaylon had observed while walking through the parking lot of the Rouge Lounge, was passed out in the front seat of an automobile.

As Officer Gaylon was leaving the lounge, he placed St. Germaine under arrest for Public Drunk. After moving St. Germaine to the scout car, he returned to the vehicle and confiscated a liquor bottle which he observed in the front floorboard. At that time Officer Gaylon was confronted by defendant Sands and co-defendant Tiger and a third party, Dan Creepingbear (who is not a co-defendant herein). Sands asked officer Gaylon what he was going to do with St. Germaine, and when Officer Gaylon informed Sands that St. Germaine would be jailed for Public Drunk, Sands replied that no officer would arrest any of his people while he was around. At that point Officer Gaylon arrested Sands and was attempting to place him in the scout car with St. Germaine when a bystander yelled for Officer Gaylon to watch out because Tiger had pulled a gun. The bystander grabbed Tiger by the arms and Officer Gaylon shoved Sands into the scout car with St. Germaine. Officer Gaylon then returned to the bystander and assisted him with Tiger. The bystander informed Gaylon that Tiger had thrown the gun away but he was unable to see exactly where. Since the door of the co-defendant's car was standing open, Officer Gaylon cursorily searched the car thinking that Tiger might have tossed the gun into the open automobile. However, this search proved fruitless and after further searching the immediate vicinity, also to no avail, Officer Gaylon went back into the lounge and asked for the owner of the automobile. At this time co-defendant Webster stepped forward and said he was the owner of the vehicle. Officer Gaylon briefed Webster as to the preceding events, since Webster had been inside the lounge, and requested Webster's consent to search his car. After informing Webster that he did not have to sign a search waiver, Webster stated that he would sign it anyway. Upon obtaining Webster's consent, Officer Gaylon and another officer who had arrived at the scene made a search of Webster's car. While searching the automobile Gaylon testified he noted the back seat was out of position and there was a resulting gap in the seat where a weapon could easily have been tossed. On removing the bottom section of the back seat, the back panel fell off revealing the trunk of the automobile and the weapon which was labeled State's Exhibit No. 1.

The State called as its next witness, Detective Harold D. Neal of the Oklahoma City Police Department. Detective Neal testified that he was assigned to the investigation of the Crestwood Liquor Store robbery. Detective Neal first related to the jury his interrogation of co-defendant Webster who, after being informed of his constitutional rights, told Detective Neal that he had been involved in the Crestwood Liquor Store robbery with some other persons. Webster testified that he and the other involved persons had been at the Red Race Bar on the afternoon of November 17th and after leaving the Red Race Bar they went to an apartment and got an AK--47 (the weapon used in the robbery). Leaving the apartment, the party went to the Crestwood Liquor Store where Webster remained in the car and then drove from the scene of the crime after the robbery had been completed. Neal further testified that Webster told him that after the robbery he eventually went to the Rouge Lounge where he was arrested.

Neal also testified that he had interrogated defendant Sands. According to Neal, after he had informed the defendant of his constitutional rights, defendant Sands told Neal that he had taken part in the robbery and that he had been the one who pointed the AK--47 at the clerk, Donald M. Whitton. According to Detective Neal, after being apprised of their constitutional rights, co-defendants Tiger and St. Germaine admitted to being with defendant Sands all evening on the 17th of November, 1973.

Thereafter, the State rested.

As a witness for the defense, Susie Silverhorn was called to the stand and she testified that she was with the defendant, Alvin Daniel Sands, from 6:30 p.m. until 10:30 p.m. on the evening of November 17, 1973. She further testified that during that time neither she, nor the defendant, went to the Crestwood Liquor Store.

Other testimony was presented both on behalf of the State and the defendant. However, that testimony largely taken from in camera proceedings, bears particular relevance to one of the several assignments of error, and such testimony will herein be presented within the context of that assignment.

As a basis for the defendant's first assignment of error, the defendant points to the cross-examination of the defendant's witness, Susie Silverhorn, who was questioned by the prosecution as to her failure to come to the District Attorney's Office and offer an alibi for the defendant, Alvin Daniel Sands. Also within this context, the prosecution called in rebuttal Harold D. Neal, the detective who had earlier testified, that at no time during the confession of Sands did Sands refer to, or mention, anyone by the name of Susie Silverhorn.

The first assignment of error, as stated by the defendant, is as follows: 'The questioning of Detective Neal on rebuttal concerning the defendant's failure to advise the officer of his alibi after his...

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    ...for comment during closing argument of second stage. In Nobles v. State, 668 P.2d 1139, 1142 (Okl.Cr.1983), citing to Sands v. State, 542 P.2d 209 (Okl.Cr.1975), we stated that the determination of whether or not conduct or remarks of counsel will serve as a basis for reversal is contingent......
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