An Appeal from the District
Court, Tulsa County; Jay D. Dalton, Judge.
RICHARD EUGENE HARRIS,
appellant, was convicted of the offense of
Second Degree Murder; was sentenced to not less
than ten (10) years nor more than life in the
penitentiary, and appeals. AFFIRMED.
Larry Derryberry, Atty. Gen.,
Givens L. Adams, Asst. Atty. Gen., for appellee.
James E. Frasier, Tulsa, for
CORNISH, Presiding Judge:
�1 Richard Eugene Harris has
appealed his conviction of Murder in the Second
Degree in the District Court, Tulsa County. His
sole assignment of error is that the evidence
presented by the State was not sufficient to
establish a prima facie case. After a careful
review of the evidence, however, we believe that
the evidence was sufficient to submit to the
�2 On June 12, 1975, Paul
Thomas Shead arrived at his residence in Tulsa
at approximately 6:30 p.m. He sat down to dinner
with his parents, who reside at the same address.
After eating, he began watching a television
program but was soon interrupted by a telephone
call. He conversed for a few minutes and then
resumed watching television. When the program
ended at 8:00 p.m., Mr. Shead left to take his
dog for a walk in Mohawk Park, which was about
five miles away. He was barefoot and was wearing
blue-and-white-striped cutoff shorts and a brown
T-shirt when he drove away in his 1975 Datsun
�3 Bob Gene Young
occasionally went to Mohawk Park in the evening
to enjoy a cool beer while his wife shopped. He
was so engaged when he encountered Paul Shead
and his dog at approximately 8:30 p.m. that
evening. Mr. Young had become somewhat
acquainted with Mr. Shead because he often saw
him in the park with his dog. On this particular
evening, Mr. Shead remained seated in his car as
he and Young entered into a brief conversation.
Mr. Young then left in order to pick up his wife
by 9:00 p.m. He said that Mr. Shead "really
never met a stranger," in that he would visit or
attempt to get acquainted with almost anyone he
met in the park. On cross-examination, Mr. Young
stated that he had never been propositioned by
Mr. Shead and that he did not know if Shead
propositioned others in the park. He also said
that he knew Richard Maurice Johnson and that he
had seen Mr. Shead and Mr. Johnson together.
�4 At approximately 1:00 a.m.
on the morning of June 13, 1975, Officer G.T.
McFadden of the Tulsa Police Department
discovered a brown Datsun which had gone off the
road into a ditch in the eastern portion of
Mohawk Park. When he approached the car, he saw
a white male in his late twenties in the
driver's seat with his head propped against the
doorpost and his mouth gaping open. The man was
wearing a brown T-shirt which had a small red
stain on the left portion of the chest. Officer
McFadden noticed that the light switch was
pulled out and that the car's battery was dead.
The officer checked the occupant of the car for
a pulse, but found none. He testified that the
deceased's left foot was on the clutch, that the
vehicle was in gear, and that the keys were in
the ignition and turned to the "on" position.
There was a pair of undershorts on the floor
between the feet of the victim. Skidmarks on the
road tracked right in behind the vehicle.
Officer McFadden radioed for a detective from
the Identification Division.
�5 Carl Gene Akins, a
detective for the Tulsa Police Department, was
assigned, at 1:10 a.m. on June 13, to
investigate the homicide at Mohawk Park. When he
arrived at the scene, he met Officer McFadden
and two security officers, who took care of the
dog that was inside the car. Akins took
measurements of the scene and was so engaged
when Investigator Brown arrived. Brown dusted
the car for fingerprints and took photographs of
the scene. He and Akins then began to inspect
the interior of the car. They discovered a
billfold lying on the front floorboard on the
passenger side, which contained items of
identification bearing the name of Richard E.
Harris, and a Radio Shack receipt with Paul
Shead's name and address on it. At approximately
4:00 a.m., Akins assisted in the removal of the
body from the automobile. He observed a bullet
hole in the left chest with a spot of blood
around the hole, approximately the size of a 50
cent piece. There was no exit wound. The body
was stiff when removed, and when the officers
attempted to put the body into a semiprone
position, blood began gushing out of the wound.
The arms and legs were cold to the touch and
stiff. The body was clothed in blue-and-white-striped
cutoff shorts and a brown polo shirt.
�6 Akins followed the body to
the Hillcrest emergency room, where Mr. Edmond
Shead, the victim's father, identified the
deceased as his son.
�7 At trial, Mr. Shead
identified the yellow Radio Shack receipt as one
which was probably given to his son when he
purchased an eight-track tape eraser. He said
that his son had a billfold, but that it was not
the one found in the automobile: The victim's
billfold was dark, smooth and considerably
thicker. He also stated that his son usually
kept $100.00 to $300.00 in his billfold and may
have been carrying more than that because they
had been planning to go on vacation. He further
testified that Paul Shead always had to carry a
pocketbook because he had to have his driver's
license, but that he had not seen his son's
billfold on the night of the murder, or since,
and that he did not know what had happened to it.
�8 At 9:15 a.m. on June 13,
1975, Dr. Leo Lowbeer, Chief Pathologist of
Hillcrest Medical Center, performed an autopsy
upon the body of Paul Thomas Shead. His external
examination revealed that there were no
undershorts, no shoes, and no stockings on the
victim, and that rigor mortis had completely
developed except in the neck muscles. A bullet
was located within the body and removed. Dr.
Lowbeer found the trajectory of the projectile
remarkable in that the bullet travelled downward
from right to left and from front to back. The
bullet, which entered the chest just left of the
midline, perforated the second rib on the left
side, both lobes of the left lung, the left
diaphragm, the spleen, the diaphragm again �
below the spleen, and then the 10th rib on the
left side. The cause of death was bleeding from
the perforation of the blood vessels of the left
lung. Although the amount of blood discovered
during the autopsy was massive, the perforation
was small, indicating that it would have taken
some time for death by bleeding to have
occurred. Dr. Lowbeer concluded that the victim
could have easily lived for 30 minutes after
receiving the gunshot wound and that he would
have been capable of driving a car during that
�9 The victim's stomach
contained a fair amount of moderately digested
food, indicating that the victim had eaten
approximately two to three hours prior to death.
Dr. Lowbeer placed the time of death between
9:00 and 10:00 p.m., and indicated that this
opinion would be consistent with the fact that
the deceased had last been seen alive at about
8:30 to 9:00 p.m. on June 12.
�10 Thomas Dean Jordan, a
firearms and tool mark examiner for the Oklahoma
State Bureau of Investigation, was asked to
determine the caliber of the projectile removed
from the body of Paul Shead and to make a
determination as to the type of weapon from
which the projectile was fired. He was also
given the shirt which had been removed from the
body of the deceased, requested to examine it
for gunpowder residue, and to determine how far
from the victim the murder weapon had been when
it had been fired.
�11 His examination revealed
that the bullet measured .357 of an inch,
indicating that it was a .38 caliber projectile.
An examination of the class characteristics, the
lands and grooves, as well as the direction of
the twist, established that the projectile had
six lands and grooves and a left-hand twist,
characteristic of a Colt revolver. Mr. Jordan
testified that to his knowledge Colt was the
only manufacturer producing a .38 caliber weapon
with a left-hand twist.
�12 The witness stated that
he had also conducted a Greiss examination upon
the shirt. This test consists of covering the
fabric with sulfanilic acid and
alphanaphthalamine, using acetic acid as a
transfer agent. By this method the residue left
on the shirt was transferred onto photo paper,
giving a density and a diameter pattern. Then
the examiner attempts by trial and error to
duplicate the original density and diameter
pattern. From this, a determination may be made
as to the distance from the weapon to the fabric
when the weapon was discharged.
�13 In this particular case,
the test was conducted with a .38 caliber Colt
diamondback six-shot revolver with a four-inch
barrel, as requested by the District Attorney.
Mr. Jordan found that the test weapon duplicated
the density and diameter pattern found on the
deceased's shirt when discharged from a distance
of 12 to 48 inches.
�14 On cross-examination, Mr.
Jordan testified that both a .357 and a .38
weapon are .38 caliber and that a .38 projectile
could be fired from a .357 magnum weapon, but
that a .357 magnum shell could not be fired from
a .38 weapon. He also said that the results of
the Greiss examination would vary with the type
of ammunition used and the length of the barrel
of the test weapon.
�15 At 4:30 p.m. on June 12,
1975, Robert Dewayne Gifford, Ray Ward and the
defendant were working together on a
construction job in Tulsa, Oklahoma. After work
that day the three men went to the Circle Plaza
Bar, at 51st Street and Peoria, about one block
from the construction site. Mr. Gifford
testified that he had several beers and was
intoxicated when the three men left the bar
somewhere between 9:00 p.m. and 9:15 p.m. that
evening. He stated that the defendant had bought
all the beer that night. He also said that it
usually took about 40 minutes to drive from the
construction site to his home in Mannford, and
that on this particular night he arrived home
before the 10:00 p.m. news. Shortly after 8:00
a.m., on June 13, Mr. Gifford talked with the
defendant at the job site. He recalled that the
defendant claimed to have left his billfold at
the Circle Plaza Bar the night before. After
hearing this, Mr. Gifford promised to call the
bar and ask whether the wallet was still there,
when the bar opened. As foreman, he was
permitted to make phone calls, whereas the
defendant, who worked under Mr. Gifford, could
not call for himself. However, Gifford never
made the call because the defendant was arrested
before the bar opened.
�16 Ray Ward's testimony
generally corroborated that of Gifford's.
However, he elaborated somewhat as to the amount
of beer consumed. He said that he had had in
excess of six bottles of beer, agreeing that the
defendant had paid for all of it. In addition,
he recalled that on one occasion he had seen a
.38 caliber Colt with a ribbed barrel in the
defendant's car. On a different occasion, he had
noticed a .38 caliber Smith and Wesson in the
defendant's car. Both these instances occurred
before June 12, 1975, although the witness was
unable to pin down the date with any degree of
�17 Mark Williams was
employed by Target Stores, Inc., as department
manager of the Sporting Goods Department. He
testified that on May 16, Maxine Harris
purchased a Colt diamondback .38 Special
revolver and that at that time she filled out a
City of Tulsa application for purchase of a
dangerous weapon. He recalled that sale with
particularity, because the gun sold to Mr.
Harris was a rare model. At trial, Mr. Williams
was at first unable to identify the purchaser of
the gun from those present in the courtroom.
However, when the defendant's wife was brought
into the room he immediately pointed to her as
the person who had bought the gun.
�18 The defendant was
arrested at the job site shortly after 9:00 a.m.
on June 13, 1975, by Officer Bill McCracken of
the Tulsa Police Department. He located the
defendant and asked him to walk to the police
car. The defendant was then seated in the rear
seat of the two-door vehicle, and Officer
McCracken sat in the front seat.
�19 Officer McCracken first
requested that the defendant produce his
identification, and when the defendant told him
that his billfold had been lost in a bar the
night before, the officer advised him of his
rights. The defendant then agreed to talk to
Officer McCracken and to the other officers who
had accompanied him. The defendant stated that
after work on the previous day he had gone to a
bar with two men with whom he worked. He had
discovered that his wallet was missing when he
arrived home that night. The defendant at first
said that he had not told anyone about the
wallet at that time. Later in his conversation
with the officers, however, he changed his story.
He said that he had told his wife of the missing
wallet and that they had started to go to the
bar to retrieve it, but had changed their minds
about going to the bar. Officer McCracken then
inquired as to whether the defendant owned any
guns. The defendant replied that he owned two
guns, a .38 Smith and Wesson and a .38 Colt.
However, he also related that his wife had lost
the Colt at Tenkiller Lake the previous weekend.
The defendant then gave the officers verbal
permission to search his automobile, which they
did. Afterwards, the defendant agreed to make a
statement, and he was transported downtown to
the police station where a statement was taken.
�20 The officer testified,
upon cross-examination, that he had periodically
worked on this case from June 13, 1975, until
September of 1976, when he left the police
department. He also stated that he did not feel
that this matter had been worked out until the
case was filed, and that it had been filed
sometime after he had left the department.
�21 At the conclusion of
Officer McCracken's testimony, the State rested,
and the defendant entered a demurrer to the
State's evidence, more properly termed a motion
for a directed verdict. See, 22 O.S. 1971 � 850
[22-850]. When that motion was overruled, the
defendant called Tom Lewallen to testify.
�22 Officer Lewallen of the
Tulsa Police Department had been presented as an
expert in firearms identification at the
preliminary hearing. The defense wished to call
him as a defense witness at trial, but since he
was unavailable to testify, the State consented
to the introduction of his prior testimony. This
testimony was largely consistent with that of Mr.
Jordan but Officer Lewallen differed in his
opinion as to the number of manufacturers who
make a .38 caliber weapon with six lands and
grooves and a left-hand twist. He stated that
six or eight companies manufacture such a weapon,
but that the Colt is the most popular. He said
that he did not know the names of the other
companies, but that they imported weapons into
this country. He further stated that they were
mostly companies which sold very few arms in the
United States. However, he also said that there
were many of the weapons around.
�23 The defendant cites a
number of cases for general propositions
relating to the sufficiency of the evidence. He
asserts that where the State relies entirely
upon circumstantial evidence, the facts and
circumstances must not only be consistent with �
and point toward � the guilt of the defendant,
they must also be inconsistent with his
innocence. He also argues that proof which
amounts only to a suspicion, or a mere
probability, is not sufficient to put before the
jury, and that the circumstances relied upon by
the State must exclude every reasonable
hypothesis except that of guilt.
�24 These statements are all
true. See, for instance, Klinekole v. State,
�25 In the instant case the
facts are admittedly weak, but we believe that a
prima facie case was established on the evidence
summarized above. For that reason, the judgment
and sentence from which the defendant appeals is