Wahlgreen v. State, A--15960

• Citation: 486 P.2d 753
• Decision Date: 16 June 1971
• Docket Number: No. A--15960,A--15960
• Parties: Bobby Lee WAHLGREEN, 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 753

486 P.2d 753

Bobby Lee WAHLGREEN, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15960.

Court of Criminal Appeals of Oklahoma.

June 16, 1971.

Don Anderson, Public Defender, Oklahoma County, for plaintiff in error.

Larry Derryberry, Atty. Gen., Jeff L. Hartmann, Ass't Atty. Gen., for defendant in error.

BUSSEY, Presiding Judge.

Bobby Lee Wahlgreen, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County of 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.

Briefly stated, the evidence at the trial adduced that Lawrence Pierce was shot to death at the defendant's bar in Oklahoma City on New Years Eve in 1969. Officer Hall testified that he arrived at the bar at approximately 1:45 a.m., on January 1, 1970, and after being admitted by Jewell Wahlgreen and Charles Walker, observed the body of Lawrence Pierce lying on his back with a bullet wound between his eyes.

Charles Walker, defendant's brother-in-law, testified that he was present at the New Years Party. Pierce became very drunk, and started annoying some of the women present. Walker hit Pierce, knocking him to the floor and dragged him outside of the club. He was in the restroom when he heard a commotion and learned someone had been shot. He testified that he loaned the defendant a .22 caliber pistol to keep at the bar. Some persons had previously attacked defendant at the bar with pool cues and the pistol was for protection.

Billie Jean Walker was in the bar with her husband. Pierce was drinking beer and started bothering the woman. She was sitting at the bar when she heard a shot and saw Pierce on the floor and the defendant on the bandstand with a gun in him hand.

Oscar Lee Lamb testified that he found the pistol, State's Exhibit No. I, in an alley about half a block from the defendant's bar.

Bob Phillips testified that he was in the bar, and heard a shot fired. He observed the defendant on the bandstand with a gun.

Ronnie Fountain testified that Pierce was in a sitting position, waving his hands before the shot. Pierce did not make any attack or assult against the defendant prior to the shot.

Albert Williams testified that he saw Pierce seated at the bar about 11:20. He next saw him lying on the floor, and someone dragged him outside the bar. After a few minutes, he observed Pierce lying down inside the bar about six feet from the door, and the defendant was attempting to revive Pierce. He was slapping him and poured something in his face. The defendant went behind the bar and got a gun. Pierce was sitting up on the floor, leaning forward. He saw the defendant return to the bandstand, pick the gun up from the floor, and get in a kneeling position, and fired the gun about three feet from Pierce.

Dr. Luke, the State Medical Examiner, performed an autopsy on Pierce. He found the cause of death to be a bullet wound in the brain from a .22 caliber bullet. He also found a broken left collar bone, sustained at relatively the same time as the bullet wound. Blood analysis showed a .38 grams percent of ethyl alcohol, which indicated Pierce was extremely intoxicated.

Leona Mae Cummings testified for the defense that she was the defendant's mother-in-law, and was present at the bar the night in question. Pierce tried to get her to go to a motel with him. She went to the restroom, and did not witness subsequent events.

Fred H. Lightsey testified that he was in the bar that evening and saw Pierce make advances to two women. The defendant asked Pierce to leave. He saw Walker take Pierce out of the bar. He left before the shooting. Everyone in the place was highly intoxicated.

Charles Johnson testified that he was at the bar that night, and about 9:00 p.m., it became a private party. Pierce started bothering the women and after he had words with Billie's mother, he knocked Pierce down. He denied telling the police that the defendant kicked Pierce while he was lying down outside the club.

Jewell Wahlgreen, the defendant's wife, testified that she was at the bar that evening. Her husband had kept a gun at the bar for the past three weeks for protection because he had been badly beaten. Pierce was disturbing the people in the bar. She left the club before the shooting, and as she returned, the defendant was leaving. He turned over the keys and appeared to be in a daze. She called the police and met them at the door.

Defendant testified that he operated the Joker Bar, and that in November, he was attacked by three people, and was severely injured. He borrowed the .22 caliber pistol from his brother-in-law for protection. Pierce was a customer at the bar, and had bothered people after a few beers. When defendant tried to talk to him, he would become belligerent, and threatened to whip him. He decided to close the bar to the public New Years Eve and have a private party. Pierce got into an argument with a customer, and when defendant remonstrated, he again threatened to whip defendant. He later saw Pierce by the bandstand, apparently unconscious, and tried to revive him by slapping and pouring water on his face. Someone helped Pierce out, and later he came back in, approaching defendant. He observed one of the persons that had attacked him earlier behind Pierce, and this prompted him to get the pistol. He asked Pierce to leave, but Pierce kept advancing, shaking his arms in his face. This scared him, and he shot the gun. He did not intend to shoot Pierce, thinking that he would scare him with the gun. After the shooting, he was in a daze; he left and threw the gun in an alley. He denied kicking Pierce while he was lying down outside the bar.

The first proposition asserts that the court erred in admitting improper prejudicial hearsay in rebuttal. Charles Johnson, a witness for the defendant, testified on cross-examination that he had not informed the police...