BUTLER v. STATE

BUTLER v. STATE
1972 OK CR 151
497 P.2d 1100
Case Number: A-17334
Decided: 05/31/1972
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Tulsa County; Joe Jennings, Judge.

William Derek Butler was convicted of the offense of Robbery By Firearms, sentenced to a term of not less than forty (40) years nor more than one hundred (100) years imprisonment, and he appeals. Judgment and sentence modified to a term of twenty-five (25) years imprisonment and affirmed. Modified and affirmed.

Curtis A. Parks, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., Kay Karen Kennedy, Legal Intern, for appellee.

BUSSEY, Presiding Judge:

¶1 Appellant, William Derek Butler, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Tulsa County, Oklahoma, for the offense of Robbery By Firearms; his punishment was fixed at a term of not less than forty (40) years nor more than one hundred (100) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

¶2 At the trial, Charles Gates testified that he owned the Gates Pharmacy at 8519 East Eleventh Street in Tulsa. On the afternoon of May 29, 1971, he and his nephew were filling prescriptions when two men in their early twenties walked into the store. The shorter man, whom he identified in court as the defendant, pulled a revolver from his back pocket and said "I want all you Class A narcotics." The nephew was ordered to lie down behind the counter and Gates was directed to get nembutal and desoxyn. Defendant produced a garbage type bag from his pocket. Defendant stated, "I want it all," and proceeded to take drugs from the shelves himself. Defendant fired a shot which hit Gates in the arm and asked him where the safe was. They proceeded to the back room and Gates opened the safe. The defendant took rolls of quarters, nickels and dimes from the safe. Gates grabbed the shotgun and fired at the defendant. The defendant fired three shots at Gates, the last shot striking him in the arm. Defendant ran out of the store and Gates reloaded his shotgun. Gates ran outside and observed a tan Volkswagen pulling away and was able to obtain the tag number.

¶3 Steven Gates testified that he was working in the drug store on the afternoon in question. He testified that defendant came into the store followed by a taller man. Defendant said, "Sorry to bother you, sir, but give us all your Class A narcotics." He testified that he was ordered to lie down on the floor and the taller man tied his hands and feet with an adhesive tape. His uncle was directed to get the narcotics for the defendant. He could not see what was happening in the back room and heard several shots. The defendant and the taller man ran from the store. He further testified that he called the police and gave them a description of the Volkswagen.

¶4 Officer Duncan testified that at approximately 1:00 in the afternoon on the day in question, he received a radio report of a robbery at the Gates Pharmacy. He proceeded to the Sheridan entrance ramp of the crosstown expressway and set up an observation of the west bound traffic. He observed a Volkswagen matching the description and took pursuit. He radioed for assistance and was joined by a second police unit. They bottled the Volkswagen a short distance when it attempted to make a left hand turn and slid too far. The Volkswagen was blocked by the two police units. He further testified that he told the driver to get out of the vehicle and handcuffed him as the other officer walked up to the passenger side of the vehicle. The defendant, who was riding in the passenger side, jumped from the car and ran across Admiral. The other officer yelled at him to stop and when the defendant was approximately fifteen yards away, the officer fired. Defendant grabbed his left leg and continued running. Officer Duncan then fired his pistol and struck the defendant in the buttocks.

¶5 Officer Journeycake testified that he received a broadcast as to the armed robbery and proceeded to a location where the Volkswagen had been stopped. He testified that he searched the vehicle and found a pistol, a plastic bag, narcotics and rolls of money.

¶6 Defendant's mother testified that she and the defendant's father were divorced when the defendant was two years old. The defendant was "always a good boy." Defendant ran away from home when he was sixteen years old and after a couple of months, he returned and re-entered school.

¶7 The defendant testified that he was twenty years old and had been using drugs since he was fifteen. He testified that on the day in question he took some heroin and that he and his friend decided to rob the store because, "I had a habit and I was getting sick." (Tr. 87) He testified that he was sorry he did it and felt he should be punished.

¶8 Defendant's two assignments of error assert that the prosecuting attorney made improper comments in his closing argument and that the punishment is excessive. We are of the opinion that the defendant's contentions are well taken.

¶9 The judgment and sentence is accordingly modified to a term of twenty-five years and is so modified and affirmed. Modified and affirmed.