Walker v. State

• Decision Date: 08 June 1976
• Docket Number: No. F--75--700,F--75--700
• Citation: 550 P.2d 1339
• Parties: Dwight Andrew WALKER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1339

550 P.2d 1339

Dwight Andrew WALKER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--700.

Court of Criminal Appeals of Oklahoma.

June 8, 1976.

Richard A. Hoffman, Public Defender, Tulsa County, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Doug Combs, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Dwight Andrew Walker, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Tulsa County, Case No. CRF--74--1942, for the offense of Shooting with Intent to Kill, in violation of 21 O.S.1971, § 652. Jury trial being waived, the trial court fixed his punishment at twenty (20) years' imprisonment, and from said judgment and sentence an appeal has been perfected to this Court.

Briefly stated, at the trial the State's evidence in chief established that defendant shot Officer C. L. Lewis of the Tulsa Police Department shortly before 9:00 p.m. on August 19, 1974, at a residence located at 1962 North Cincinnati in Tulsa County. Officer Lewis and two other police officers with that department had responded to a dispatch to contact a woman in the yard at that address with reference to a mental patient armed with a gun. As the officers approached two small children and defendant's mother in the front yard, defendant fired upon the officers with a pistol from the front porch and retreated into the house when officers returned gunfire. When Officer Lewis ran across the front yard to gain protective cover behind a tree, defendant shot him with a shotgun from a window of the residence. The shotgun blast was fired at a distance of about twelve to thirteen feet and struck the officer along the left side of the body, knocking him to the ground. Several pellets entered his body, including about five pellets in the side of the body, one pellet in each arm, one pellet in the left side of the neck and one pellet in the left leg. One pellet pierced the commission case carried in his left shirt pocket and another lodged in his handcuff case. Officer Lewis was, however, able to crawl behind the tree to where another officer had sought protection. Approximately fifteen to twenty police officers were soon upon the scene and continued to exchange gunfire with defendant for about an hour. During this period defendant barricaded himself within the house with furniture, and fired upon officers from behind a fireplace in the living room, where with relative protection he could shoot through either of two windows located at the front of the house. Several shots fired by defendant struck the tree behind which Officer Lewis had sought protection, as well as a car in the driveway to the residence behind which other officers had acquired protection. Officers placed roadblocks nearby to protect others from being injured, and shot out street lights around the residence to protect themselves from being silhouetted against the lighting. Electricity to the house was terminated and spotlights were trained upon the front windows but were of little assistance. An attempt was made to contact defendant and negotiate with him by telephone but the telephone receiver within the residence was apparently not in place. A bullhorn was repeatedly used in an attempt to persuade defendant to surrender himself, but defendant shouted obscenities and continued to fire upon the officers. Defendant's mother and the two children were rescued from the area in front of the residence by driving a police car between themselves and the house and having them crawl into the back seat of the vehicle. A heavy barrage of gunfire was employed in removing Officer Lewis to safety, and he was then taken to a hospital by ambulance. Teargas canisters were fired at a front window of the house, but several bounced off a chair used to partially barricade the window before officers were successful. The teargas then soon caused defendant to leave the house and walk out to the front porch. One of the officers then exposed himself from protective cover, and Officer Claude M. Graves shot defendant with a ten gauge shotgun from a distance of about twenty to twenty-five feet when defendant suddenly dropped his arms and began to turn, contrary to directions from the officers. A .22 caliber automatic pistol, or Luger, with one live shell in the firing chamber and eight rounds in the clip had not previously been observed upon the front porch but was discovered there after defendant toppled from the porch. Defendant was handcuffed and advised of his rights, and when then asked what he was trying to do, he replied, 'I'm just mixed up.' (Tr. 75) Defendant then kicked at officers as he was placed in an ambulance and removed to a hospital where he was reported to be in serious condition but refusing treatment. A twelve gauge shotgun with one live shell in the firing chamber and a fully loaded .22 caliber revolver were discovered in the living room of the house, along with numerous spent shotgun shells and .22 caliber cartridges and boxes of live ammunition.

Pauline Geneva Erby first testified for the defense that at the request of her sister, defendant's mother, she telephoned the police on August 19, 1975, and reported that she had a mentally ill nephew who had armed himself with a shotgun and pistol and stationed himself at a window.

Ozetta Minnie Walker, defendant's mother, then testified that she saw her son with a shotgun and pistol on August 19, 1974, and when she inquired about the guns defendant related that he was going to shoot squirrels. She also confirmed generally the previous testimony of witnesses testifying for the State. Her son was committed to Eastern State Hospital at Vinita for about four months in 1969 when he was seventeen years old. When released he was placed upon medication and treated as an out-patient at the Tulsa Psychiatric Center. At the time of the subject incident, defendant was not taking the medication.

Defendant next testified as the final witness in his behalf. He reiterated that he had been committed for mental treatment at Eastern State Hospital for a period of about three and one-half months when he was seventeen years of age in 1969. After being released he was treated as an out-patient at the Tulsa Psychiatric Center in 1969 and 1970. Two drugs had been prescribed for him, Thorozine and Phrenquil, and he continued to take the medication until he exhausted his supply about one month prior to August 19, 1974. (Tr. 115) With respect to the events of that evening, defendant acknowledged that he owned the guns recovered by police officers, and when asked what precipitated the shooting incident, he testified:

'Well, I was standing on the porch and I saw these two officers walk up in the yard. And I saw one snap his holster like he was about to draw his pistol, and it startled me. And I fired on him and then I ran in the house to prevent the shot from coming in my mother's direction. I fired two warning shots out of the window with a shotgun.' (Tr. 117)

Defendant then testified that he engaged in a gun battle with police officers for about forty-five minutes to an hour, and acknowledged shooting at the car in the driveway and the tree behind which officers had concealed themselves. He was not aware that he had shot a police officer, and further testified that he 'was not shooting to kill' and 'was basically trying to make noise.' (Tr. 124 and 126) He also acknowledged hearing the officers announce on a bullhorn that he would not be harmed if he would come out with his hands up, but explained that he did not then leave the house because he was fearful of being shot. He denied shouting profanity in response to the officers, and testified that he replied that he would come out in the morning. When he did leave the residence, defendant denied taking a pistol to the front porch and testified that he did not intentionally drop his hands but only stumbled. As a result of being shot in the left side with a shotgun, he was hospitalized for approximately one and one-half days. However, his treatment was principally limited to cleaning the wound, and he declined operative treatment because he 'didn't feel like it was necessary...