CUDJO v. STATE

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CUDJO v. STATE
1984 OK CR 38
676 P.2d 267
Case Number: F-81-623
Decided: 01/24/1984
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Seminole County; Gordon R. Melson, Judge.

The appellant, Alvin Cudjo, was convicted in the District Court of Seminole County, of two counts of Murder in the First Degree, Case Nos. CRF-80-181, CRF-80-182, was sentenced to two life sentences, and he appeals. AFFIRMED.

J. Mark Phelps, Seminole, for appellant.

Michael C. Turpen, Atty. Gen., Alan B. Foster, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Presiding Judge:

¶1 Alvin Cudjo, the appellant, was convicted in the District Court of Seminole County of two counts of Murder in the First Degree, Cases No. CRF-80-181 and No. CRF-80-182, was sentenced to two terms of life imprisonment, and he appeals.

¶2 The evidence presented at trial was as follows:

¶3 The decaying bodies of Arie Hardy and Dempsey Roberts were discovered in Hardy's Wewoka home on October 8, 1980. The two men were last seen alive on the evening of October 6th.

¶4 The State offered the testimony of numerous witnesses who placed the appellant at the crime scene during the evening of October 6th. The State also established that on the morning of October 6th, Dempsey Roberts received his social security check, which he cashed at the First National Bank. Arie Hardy also normally received government checks on the 1st and the 3rd day of each month.

¶5 Several witnesses testified that it was Mr. Hardy's habit to keep his money in a cloth tobacco pouch, and that Dempsey Roberts normally carried a billfold. During the investigation following the homicides, neither the pouch nor the billfold could be found.

¶6 The State medical examiner testified that Arie Hardy died as a result of three gunshot wounds to the head. He stated that Dempsey Roberts' death was caused by a single gunshot to the neck which severed the spinal cord. The trial court admitted into evidence the bullet removed from the body of Roberts and the bullet fragments recovered from Hardy. The medical examiner also testified that he found $24.55 and $2.58 in the respective clothing of Arie Hardy and Dempsey Roberts.

[676 P.2d 268]

¶7 Seminole County Sheriff Charles Sisco testified that when he went to the appellant's Oklahoma City duplex apartment he was told that the appellant was not home. The sheriff discovered that the appellant had been hiding in the attic when the appellant fell through the ceiling in the adjoining apartment. The appellant told the sheriff that he hid because he believed it was the Oklahoma City police serving traffic warrants.

¶8 Sheriff Sisco further testified that he found an expended bullet on the living room floor in Hardy's home. This bullet was also admitted into evidence. He recounted that when the appellant was arrested the appellant stated that he did not own a firearm. Sheriff Sisco then testified that when the appellant was confronted with a .22 caliber pistol found in his pick-up he stated that he had bought the pistol from a friend late in the evening of October 6th.

¶9 A neighbor of the appellant, Lavern Winters, testified that he had seen the pistol in the appellant's possession in September, 1980. Mr. Winters also related that on the morning of October 6th, the appellant stated that he was leaving home "to get some money."

¶10 Tom Jordan, an O.S.B.I. ballistics expert, testified that markings on the bullet found on the floor by Sheriff Sisco matched the barrel rifling of the appellant's pistol to the exclusion of all other firearms. He testified further that the bullet fragments recovered from the victims' bodies were too damaged to identify positively as coming exclusively from the appellant's handgun, but that they possessed sufficient characteristics so that he could not eliminate that possibility.

¶11 The appellant neither testified nor offered evidence in his own behalf.

¶12 The appellant's sole assignment of error is that the evidence presented by the State is insufficient to sustain his convictions. The appellant does not contend, however, that the State failed to establish that two homicides were committed. Moreover, evidence that one victim was shot three times in the head was sufficient to place before the jury the question of malice aforethought, an essential element of first degree murder. Ramseyer v. State, 654 P.2d 1079 (Okl.Cr. 1982). Essentially, the appellant's argument is that the evidence was insufficient to establish that he was the perpetrator of the homicides.

¶13 We are of the opinion that the evidence, although circumstantial, was more than ample to establish a prima facie case which was uncontroverted. The incriminatory statements made by the appellant prior to the homicides, his presence at the scene of the homicides on the date the victims were last seen alive, and his possession and ownership of the murder weapon were sufficient to support the verdict.

¶14 Accordingly, the judgments and sentences are AFFIRMED.

CORNISH and BRETT, JJ., concur.