Trowbridge v. State

• Decision Date: 11 October 1972
• Docket Number: No. A--17246,A--17246
• Citation: 502 P.2d 495
• Parties: Truman Reaul TROWBRIDGE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 495

502 P.2d 495

Truman Reaul TROWBRIDGE, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17246.

Court of Criminal Appeals of Oklahoma.

Oct. 11, 1972.

James C. Langley, Public Defender, Tulsa County, and Pat Malloy, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Raymond Naifeh, Asst. Atty. Gen., Charles F. Alden III, Legal Intern, for appellee.

OPINION

BUSSEY, Presiding Judge.

Appellant, Truman Reaul Trowbridge, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County, Oklahoma, for the offense of Murder; his punishment was fixed at life imprisonment and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, Jerry McMillen testified that he was a police officer and assigned to the Narcotics Division of the Tulsa Police Department. On the morning of April 2, 1971, he obtained a search warrant for the defendant's residence located at 4815 South 27th West Avenue, in Tulsa. He, there other police narcotics officers, to members of the District Attorney's staff, two agents of the A T & F unit of the United States Treasury Department and a probation officer, proceeded to a location near the defendant's house in three unmarked vehicles. By prearrangement, he and Officer McCullough, who were dressed in civilian clothing, dismounted from their vehicle and walked toward the defendant's house. He testified that he and Officer McCullough had beards and that their hair was somewhat longer than usual. As they proceeded across the yard to the porch of the residence, they observed that the inner wooden door of the residence, which had previously been open, was now partially closed. Officer McMillen knocked on the outer door and stated, "I'm a police officer, we have a search warrant." (Tr. 46) He testified that he had the search warrant in his left hand and that Officer McCullough was standing in front of the door, to his left, displaying his badge and credentials. He heard the scuffling of feet inside the house and then Officer McCullough opened the storm door. He pushed open the innner door with his left foot and both officers entered the house together with their guns drawn. He observed a male subject sitting in a chair directly to his left, a white female sitting on the divan and the defendant, who was moving in the center of the room toward the southeast corner. The defendant raised his right hand to hip high holding a small caliber pistol. He testified that they again identified themselves as police officers and the defendant raised the gun to shoulder level and fired a shot. Defendant ran into the kitchen and both officers pursued him. The defendant was next observed at the back door of the house and he again turned, as he was going through the door, and fired 'one or two more times.' (Tr. 51) At this point, both officers returned the fire. Defendant went out the back door, across the porch and disappeared behind the utility shed. As the officers ran down the steps, the defendant fired two more shots at them. He (McMillen) returned two shots as the defendant disappeared around the corner of the house. He heard several shots come from the south side of the house and heard Officer McCullough yell from inside the house. He went back into the house and observed that McCullough had the defendant's wife in custody. He heard 'quite a bit of commotion outside' and went back out the back door to the south side of the residence. He observed Officer Jones and Agent Larry Elkin scuffling with the defendant in the doorway of the garage. Someone yelled that Sergeant Spybuck had been hit and he proceeded to the front of the residence. Officer Spybuck was lying in front of the residence on his left side with his knees brought up under his chest. He went to his police unit and radioed for an ambulance. He, Agent Buford and Officer Jones returned inside the house to attempt to find the third subject. Upon searching the house, he found the third subject, Birdwell, lying on the floor behind the bed. He ordered Birdwell to keep his hands in sight and to get up slowly. As Birdwell started to get up, he made a motion with his left hand toward his side wherein Officer Jones fired one shot into the wall. After removing Birdwell from the bedroom, he went back out to Sergeant Spybuck and subsequently accompanied him in the ambulance.

Jess McCullough testified that he was an officer with the Tulsa Police Department assigned to the Narcotics Division. He testified that on the morning in question he and the other officers proceeded to the defendant's residence with a search warrant. He and Officer McMillen parked their vehicle in front of a schoolhouse and walked to the defendant's house. As they approached the house, he observed that the inner door of the house was suddently partially closed. Officer McMillen, who had his revolver in his right hand and the search warrant in his left hand, knocked on the door stating, "Police Officers, we have a search warrant." (Tr. 112) He (McCullough) held his weapon in his right hand pointing toward the ground and held his badge case and credentials in his left hand. After a short delay after the knock, he heard a shuffling of feet in the living room area. He opened the outer door and Officer McMillen kicked the wooden door open. They both entered the room simultaneously, he still having his weapon down to his leg and holding his badge case away from his body. He stated, "Police Officers." (Tr. 116) Defendant, who was standing near the kitchen exist, had a gun about hip high pointing directly at him. He heard a click and observed the defendant handling the weapon as though he were attempting to eject a spent cartridge. The defendant then fired a shot and ran into the kitchen area. He and Officer McMillen pursued him and the defendant fired two more shots at them. He and McMillen both returned the fire and the defendant ran outside. They followed him outside and the defendant fired two additional shots. McMillen pushed him back toward the porch. He then placed the defendant's wife under arrest. He took her outside and stationed her behind one of the police units and observed Sergeant Spybuck lying on the ground near the front porch. He subsequently discovered a .25-caliber automatic pistol lying on the ground at the south side of the house.

J. William Buford, a Special Investigator with the Alcohol, Tobacco and Firearms Division of the United States Treasury Department, testified that, pursuant to a prearranged plan, he and Agent Elkin proceeded in their unmarked unit in a northerly direction toward the defendant's residence as Officers McMillen and McCullough made their approach on foot. As they were parking in the driveway of the residence just north of defendant's house, he observed Officer McMillen knock on the door. Detective McCullough had his left hand raised holding his badge case. He observed both officers enter the residence with McCullough still holding his badge in front of him. Shortly thereafter, he heard gunfire inside the house and he and Detective Charley Jones ran to the rear of the house on the north side. He testified that he heard approximately four or five shots. Upon arriving at the rear of the house, he discovered that the back yard was fenced. He leaned over the fence and observed the defendant coming from the back of the house. Detectives McMillen and McCullough came out on the back porch and Detective McMillen jumped off the porch. He heard a shot fired and Detective McMillen jumped back upon the porch. McMillen returned a shot or two at the defendant and he (Buford) ran back to the front of the house and observed Sergeant Spybuck on one knee in the driveway. Spybuck stated, "He hit me." and attempted to crawl toward the porch. (Tr. 155) He assisted Spybuck to the edge of the front porch wherein Spybuck stated, "The son-of-a-bitch shot me." (Tr. 156) He proceeded around to the south side of the house and observed Agent Elkin and Detective Jones struggling with the defendant. He then went inside the house with Detectives McMillen and Jones and aided in apprehending Donald Birdwell.

Charley Jones testified that he was a Tulsa Police Officer assigned to the Narcotics Squad. He testified that on the morning in question, he and the other officers went to a residence at 4815 South 27th West Avenue in Tulsa to execute a search warrant. He testified that they went in three separate vehicles and that he was driving a car containing Sergeant Thurman Spybuck, Jim Heslet and Brad Williams of the Tulsa County District Attorney's office, and Jim Stewart, a Pardon and Parole Officer. As Officers McMillen and McCullough walked up to the front porch of the residence, he was pulling his unmarked police vehicle into the driveway on the south side of defendant's residence. He observed McCullough open the outer door holding his black commission case in front of him. He got out of his vehicle and was standing in front of his car as the two officers entered the house. He and Agent Buford ran to the north side of the house and he heard several shots from within the house. He testified that when he reached the fence at the rear of the house he observed the defendant jump off the back steps and run to the southeast corner of the house. Officer McMillen ran down the back steps and the defendant fired a shot in his direction. McMillen fired a shot in the direction of the defendant and he (Jones) ran around to the front of the house. He observed Sergeant Spybuck attempting to crawl from the side of the house to the front porch area. Spybuck stated, "Charley, he shot me." (Tr. 183) He heard Agent Elkin yelling in the driveway and proceeded around the side of the house and observed the defendant throw a small black weapon to the ground. Agent Elkin attempted to take hold of the defendant and the defendant jerked away from him. He grabbed the defendant, who was still struggling with Elkin. He...