Thompson v. State

• Decision Date: 23 May 1956
• Docket Number: No. A-12283,A-12283
• Citation: 298 P.2d 464
• Parties: Charles THOMPSON, 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 464

298 P.2d 464

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

No. A-12283.

Criminal Court of Appeals of Oklahoma.

May 23, 1956.

Syllabus by the Court.

1. A tape recording secretly made, without the knowledge or consent of defendant of conversation between defendant and another prisoner in adjoining cells, properly identified, is admissible in evidence.

2. Notwithstanding the introduction into evidence of a tape recording of two prisoners' conversation in adjoining cells, where the same is punctuated by obscenities, the officer who made the recording and heard the conversation may testify from memory concerning what he heard the prisoners say.

Appeal from Superior Court, Okmulgee County; Don Barnes, Judge.

Plaintiff in error, Charles Thompson, was charged with the crime of robbery with firearms; sentenced to fifteen years in the state penitentiary. Affirmed.

Harland A. Carter, Okmulgee, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

The plaintiff in error, Charles Thompson, defendant below, was charged in the Superior Court of Okmulgee County, Oklahoma, with the crime of robbery with firearms, 21 O.S.1951 § 801, in that he did through aid of a .25 caliber revolver and fear of bodily harm, feloniously take from the Arkansas Fruit Market, and particularly Mrs. Helen Rogers and Charles Coker, the sum of $354. The crime was committed on Paril 17, 1955, in the aforesaid county and state. The defendant was tried, convicted by a jury which fixed his punishment at fifteen years in the penitentiary; judgment and sentence were entered accordingly, from which the appeal has been perfected.

Briefly, the facts herein disclose that the defendant, Charles Thompson, and one Edward Anderson, robbed the Arkansas Fruit Market, in the city of Okmulgee, Oklahoma, on April 17, 1955. In the robbery, it appears that they took $354 at the point of a .25 caliber pistol. The record discloses that the defendant, Charles Thompson, furnished the get-away automobile and was waiting some short distance from the Arkansas Fruit Market while Anderson went into the market, drew the pistol, pointed it at Mrs. Helen Rogers and Charles Coker, and directed them to place the money in a sack, all of which they did. In making his retreat from the market, he observed Coker reaching down, as though to pick up a gun. Anderson said he fired through the window to frighten Coker. Affecting his escape from the scene, he got into the automobile with Charles Thompson, who drove him to Thompson's home and permitted him to hide in the attic. At Thompson's home they divided the money, each taking $177. Later Thompson removed Anderson from his home to the home of his sister, Mrs. Leo Franklin, out in the country, but her husband, Leo Franklin, would not permit him to stay there, but told him of a vacant house up the road, where he spent the night. Anderson later escaped to Beggs, Oklahoma, where he was apprehended and returned to Okmulgee. The defendant was arrested on May 5. On May 7, Anderson pled guilty to the charge herein, and was sentenced to fifteen years in the penitentiary. He and the defendant were placed in adjoining cells in the county jail. Before they were thus incarcerated, a tape recorder was secreted in an advantageous position where the conversation between the two could be heard and recorded by the officers stationed at the end of the cells and not be seen by the defendant. They could, however, see the defendant and Anderson at all times.

Officer Hunter overheard a conversation, and made a tape recording thereof, which lasted about fifty minutes. Subsequent thereto, on May 14, the defendant called the jailer, Howard Nunn, back to his cell, and said he had something that was bothering him. In the conversation, he voluntarily stated that he was only driving the car for this robbery. Prior thereto, he told the officer he had thrown the pistol in Okmulgee Lake, but he confessed to Howard Nunn that the pistol was at Peggy Massie's house and that he would call and identify Mr. Nunn and tell them Mr. Nunn would be by to pick up the pistol. Later Mr. Nunn and Deputy Sheriff Marvin Shoulders went by and picked up the pistol. In Edward Anderson's testimony, he identified the pistol as being the one used during the commission of the robbery.

It is not necessary to detail all the evidence herein involved. It is sufficient to say that the testimony of Edward Anderson, who testified for the state, is amply corroborated in many details by other witnesses, including the victims and Josephine and Leo Franklin, the defendant's sister and brother-in-law, as well as by the admissions made against interest by the defendant to Mr. Nunn. It is well to note that after telling Mr. Nunn that he only drove the car for the robbery, he said that he wished to plead guilty to the charge. The county attorney called and advised him that if he wished to make a statement, he would have to call his attorney, which was done. Upon calling his attorney, he changed his mind and entered a plea of not guilty.

The defendant urges two contentions: that the court erred in admitting incompetent evidence and in excluding competent evidence offered by the defendant. The defendant's principal contention is that the trial court erred in permitting Assistant Chief of Police Norman Hunter to testify concerning the conversation between Anderson and Thompson which he overheard while they were in adjoining cells in the Okmulgee County Jail, and in permitting the introduction of the tape recording made thereof for the reason that the same was made in violation of the defendant's constitutional rights and that it was done without his knowledge, permission, or consent. In this testimony, Officer Hunter related certain incriminating statements made by the defendant, among some of which are the following: In speaking to...