Wood v. State, F--76--295

• Decision Date: 24 November 1976
• Docket Number: No. F--76--295,F--76--295
• Citation: 557 P.2d 436
• Parties: Phillip Hollis WOOD, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 436

557 P.2d 436

Phillip Hollis WOOD, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--295.

Court of Criminal Appeals of Oklahoma.

Nov. 24, 1976.

Rehearing Denied Dec. 15, 1976.

An appeal from the District Court, Tulsa County; Margaret Lamm, Judge.

Phillip Hollis Wood, Appellant, was convicted of the crime of Murder in the Second Degree, and sentenced to a term from ten (10) years to life imprisonment under the direction and control of the Department of Corrections of the State of Oklahoma, and appeals. Judgment and sentence AFFIRMED.

Ed Morrison, Lawrence D. Taylor, Tulsa, for appellant.

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

OPINION

BLISS, Judge:

The Appellant, Phillip Hollis Wood, hereinafter referred to as defendant, was charged, tried before a jury and convicted in the District Court of Tulsa County, Case No. CRF--75--1213, of the crime of Murder in the Second Degree. In accordance with the verdict the defendant was sentenced to serve a term of from fifty (50) years to life under the direction and control of the Department of Corrections of the State of Oklahoma. From said judgment and sentence the defendant has perfected his timely appeal. Subsequent to the filing of defendant's brief the trial court by order nunc pro tunc corrected its judgment and sentence to a term of from ten (10) years to life pursuant to 21 O.S.1975 Supp., § 701.4 and Layton v. State, Okl.Cr., 551 P.2d 270.

Briefly stated the evidence adduced at trial is as follows: Pathologist Dr. Leo Lowbeer testified that on June 5, 1975, he performed an autopsy upon the body of the deceased and discovered numerous lacerations and bruises evidencing a violent struggle and that the fatal wound was a stab wound to the right breast that severed the aorta. Referring to photographs admitted into evidence Dr. Lowbeer referred to certain wounds as defense wounds obtained when a victim attempts to defend himself against an assailant. He further testified that the blade of a paring knife admitted as state's Exhibit No. 5 fit perfectly into the stab wounds. On cross-examination Dr. Lowbeer related that the defendant's blood group was group O.

Louie C. Moore then testified that on June 4, 1974, he was employed as a food handler at the Tulsa Club and that shortly after 2:00 p.m. he sold some charity raffle tickets to the decedent in the presence of the defendant. Wesley T. Lindsay then testified that he was employed by the Tulsa Club as head pantry chef, that the decedent worked as his assistant and that the defendant worked as a sandwich man. He further related that he observed the raffle ticket transaction at approximately 1:30 p.m. and that at 1:45 p.m. the decedent left his station in the 7th floor kitchen and the defendant left approximately five minutes later. At approximately 2:20 p.m. he was called down to the 5th floor cook's dressing room where he observed the decedent lying on the floor and the defendant standing among other employees. The defendant was then without his cook's coat and it appeared that he had changed into a clean pair of cook's trousers.

Willie Hanner then testified that he was a busboy at the Tulsa Club on June 4, 1975, and that between 2:00 and 2:15 p.m. he was in the busboy's dressing room immediately adjacent to the cook's dressing room and overheard the sounds of a fight coming from the cook's dressing room. He did not investigate.

Larry Dawson then testified that on the date in question he was employed as head of the salad department on the 9th floor and that at approximately 2:20 p.m. the defendant rushed into the room wearing a clean uniform and stated, 'Oh wow, somebody has killed Poncho.' The defendant appeared excited and nervous. The witness took the elevator down to the 5th floor and there he met the defendant who had taken the back stairs. The defendant used his key to enter the cook's dressing room where Dawson observed the decedent covered with blood and lying in a commode stall. Shortly thereafter the manager and other employees arrived.

Ray Crussel a chef at the Tulsa Club related that between 2:00 and 2:30 p.m. on the 4th the defendant had come into the kitchen 'hollering' that someone had killed Poncho. Crussel described the decedent as being five feet nine inches tall and weighing approximately 130 pounds and the defendant as being approximately the same height and weighing approximately 300 pounds. He further stated that he went with other employees to the cook's dressing room and identified state's Exhibit No. 6 as the decedent's 'french knife' that he had observed lying on the floor along with a long tapered knife sharpener which also belonged to the decedent. He then identified a pocket knife as being like one the defendant had in his possession about a year before the incident and stated that he saw a watch lying on the floor about a foot from the french knife. Michael Crawshaw then testified that he was the general manager of the Tulsa Club, that at approximately 2:20 p.m. he was summoned to the cook's dressing room where he found the deceased face down in a tremendous pool of blood in a commode cubicle and that a few days later he discovered the pocket knife in the crawl space above the ceiling of the cook's dressing room.

Detective John Hickey then related that at about 3:00 p.m. he went to the Tulsa Club to assist in the investigation and observed a broken watch and a butcher knife on the floor of the dressing room. He further related that the following day he returned to the club and assisted in the recovery of a pocket knife and a broken butcher steel found in the crawl space over the dressing room ceiling. He further discovered two small pieces of the butcher's steel on the floor of the dressing room behind the lockers. He then identified state's Exhibit No. 12 as shoes he had obtained from the defendant's locker. Officer John McSherry then identified numerous photographs he took off the body at the hospital and further identified hair samples he had taken from the decedent and the defendant. Officer Frank Wincent then testified that he secured from the scene two pairs of cook's trousers and one cook's jacket belonging to the defendant, one watch with a broken wrist band, a broken latch of a lock, a butcher knife, a pocket knife and a butcher's steel with two broken pieces. He further stated that all but the watch and the knives were forwarded to the FBI laboratory in Washington along with four vials containing hair strands and other substances found at the scene and a pair of men's shoes belonging to the defendant.

John Hippard then testified that he was a special agent assigned to the FBI laboratory in Washington and that his primary function was to conduct microscopic comparison and examination of hairs, fibers and other related materials. He related that he made microscopic comparisons of hair samples of the decedent and hair recovered from the watchband, the cook's jacket, the cook's trousers, the shoes and the container in which the broken butcher steel had been delivered and that all hair strands matched the sample of the decedent's hair. He could not, however, testify positively that all of the hair came from one particular person to the exclusion of all others.

James Porter, Jr. then testified that he was assigned to the FBI laboratory in Washington, that his work involved examination of stains to determine the presence of blood and that he conducted laboratory tests on two pairs of cook's trousers, a cook's jacket, shoes and a butcher steel. Three stains on the trousers and jacket were identified as group O human blood. On cross-examination Porter stated that 45 percent of Americans have group O blood. The state then rested.

The defendant testifying in his own behalf then stated that he had been convicted of robbery in 1971 and that on June 4, 1975, he was employed by the Tulsa Club as a sandwich man in the 7th floor kitchen where he and the decedent worked side by side. On the 4th at approximately 2:00 p.m. he left the 7th floor kitchen to take his regular 30 minute break. Between 2:15 and 2:20 he went to the cook's dressing room on the 5th floor where he found the dressing room door unlocked and observed blood on the floor and a foot protruding from a commode stall. Rushing to investigate he opened the door to the stall, lost his balance and fell to the floor getting blood on his uniform. Due to his prior conviction and his fear of appearing suspicious and also in an effort not to frighten women employees he quickly changed into a clean uniform and then went to inform his supervisor. He further testified that he did not kill the decedent.

The defense then recalled Larry Dawson who stated that he had been convicted in 1967 of attempted burglary and that after the body had been removed by the ambulance crew he noticed other employees who had blood on their clothing.

The defendant's first assignment of error urges that the trial court erred in overruling the defendant's demurrer to the evidence. Under said assignment the defendant further argues that the evidence was wholly insufficient to support the judgment and sentence.

After a thorough reading of the transcript of the testimony it is obvious that the conviction is based upon circumstantial evidence. However, in Jones v. State, Okl.Cr., 523 P.2d 1126, we held that where circumstantial evidence is relied upon to prove a crime, it is not required that the circumstances proven shall exclude all possibility of innocence, but only that they shall be inconsistent with any reasonable hypothesis other than that of guilt. After reviewing the entire record we are of the opinion that the evidence was sufficient to support the jury's conclusion that the defendant was guilty of the crime charged. The credibility of the witnesses and the weight and value to be given their evidence is for the determination of the jury, and where the evidence...