*1 618 suspect’s entry into a home in order to
sual holding felony arrest. That make a routine there been no con- control here had would entry. The woman with police sent to the however, living, appellant whom the permission to en- gave arresting officer And, she did this know- dwelling. ter the ing identity purpose. his and Matlock, 164, 415 U.S. In United States 988, (1974), 39 L.Ed.2d S.Ct. permission Supreme held that Court party who had given by a third search premises was authority common over the justify a warrantless search. sufficient intru- holding dispositive That here. The to search and entries to siveness entries share a fundamental characteristic: arrest entrance to an individual’s the breach of the York, supra, Payton v. New at home. 589, 100 at 1381. It is reasonable U.S. S.Ct. recognize that when one co-habitates another, his he assumes the risk that with might permit such entries. co-inhabitant Matlock, supra, 415 United States Crane, Lawton, appellant. Warren H. 993, n.7, at at n.7. U.S. S.Ct. Gen., Cartwright, Atty. Jan Eric Susan sanctity therefore conclude that Talbot, Gen., City, for Atty. Asst. Oklahoma integrity of the in his resi- and appellee. unreasonably invaded where dence was not permission of his police entered with the MEMORANDUM OPINION was there- co-inhabitant. The confession CORNISH, Judge: Judgment fore incident to a lawful arrest. is AFFIRMED. sentence Robbery was convicted of Degree in the Second in Case No. CRF-79- J., BRETT, J., BUSSEY, concur. P. 311 in the District Court Comanche County. He was sentenced to three
years’ imprisonment. appellant’s
The sole issue is whether the to an ille- pursuant
confession was obtained
gal the rea- arrest. Its resolution turns on
sonableness of the warrantless arrest made HALL, Appellant, Eugene Edward appellant’s dwelling night. in the at stated, Supreme As the Court has Oklahoma, Appellee. The STATE species person “warrantless arrest of a is a required by of seizure Amend- [Fourth] No. F-79-99. Payton ment to be v. New reasonable.” Appeals of Criminal of Oklahoma. Court York, 445 U.S. 7, 1981. Oct. L.Ed.2d 639 Payton, Supreme Court held that prohibits police the Fourth Amendment making
from nonconsen- a warrantless and *2 Anastasiadis, De-
Demetri Asst. Public fender, appellant. for City, Oklahoma photographs were admitted Gen., Although the Cartwright, Atty. William Jan Eric defense, Gen., presentation of the prior to the Flanagan, Atty. Asst. Oklahoma S. claim. Fur- to refute that they did tend appellee. City, thermore, body of the victim’s the location of his wounds number and location and the OPINION by these exhibits. We are were established *3 CORNISH, Judge: was an abuse of unpersuaded that there Degree conviction and A Murder Second admitting by the trial court discretion (10) years ten sentence of an indeterminate photographs. the basis of this imprisonment form the to life homicide, the second this At the time of convict- Eugene Edward Hall was appeal. category a statute included degree murder 15, 1976, in Oklahoma ed on November Although this requiring specific intent.1 County Case No. CRF-76-3687. superseded repealed and statute has been urged sup- to points of error are Three in- clearly which eliminates by a statute alleging port appeal, tent,2 here with treat- we are concerned following: admis- prejudiced was the under the old ment of the intent element photographs, (2) sion of certain an unconsti- statute. intent, (3) com- tutional instruction on and was de- appellant contends that he regarding his exercise of the Fifth ments right process by due the court’s nied his to right remain silent. Amendment to jury. to the That instruc- fifth instruction tavern, in Oklahoma Charlie’s Sweet follows, tion, allegedly the relieved which on the County, was the scene of a homicide every prove to each and of its burden 7,1976. evening of June element of the crime: testi- at the scene of the crime and arrested design a to instructed that You are also he in self-defense. fied at trial that acted being a human is effect the death of killing until from the fact of the inferred admission, First, of certain a reasonable the circumstances raise at the photographs taken of the deceased design such existed. doubt whether alleged error. scene of the homicide is as ' 21 rule is that the admis is in accord with O.S. The well established This instruction 702, 1971, for the reads as follows: sibility photographs of is a matter which § court, whose decision discretion of the trial design death is inferred from A to effect See, showing absent a of abuse. will stand killing, the circum- the fact of unless State, Okl.Cr., (1977). 950 Noah v. 562 P.2d reasonable doubt whether stances raise a Although it is error receive into evidence to design existed. such gruesome photographs designed primarily appellant fails note that the We first emotions, jury’s negative appeal to objection was made to the to show that an when photographs legally such are relevant our search of the instruction at trial and they logically relevant to the issues are long objection. reveals no such Our record probative and their value before the court correction standing requirement is for the Row outweighs any danger prejudice. of relitigation be avoid at trial so can of error Okl.Cr., P.2d 610 542 botham State, Okl.Cr., P.2d 88 554 ed. Daniels (1975). that (1976). view of this Court It is the saved, noth there is exception Here, question at trial unless an primary is so funda- unless the error ing to review acted in self-defense. was whether Hall had mind, life, regardless law, depraved of human al- authority perpetrated of without 1. “When design any premeditated though ef- premeditated design to effect the and with a without See, O.S.Supp.1975, any particular person individual ...” a 21 death of ...” fect the death Sess., 1, 2, 701.2(1). § Exec. ch. § 1st Laws now, 24, 1976; O.S.Supp.3979, July effective imminently perpetrated by 701.8(1). 2. “When an act § evincing dangerous person and another mental in nature that it denied the defend- alter State’s ultimate of proving burden impartial beyond ant a fair and trial. each element of the crime Skinner reason (Okl.Cr.1968), able doubt. must we stated There be a rational con proved that: nection between the basic facts and presumed, “the ultimate fact and latter If counsel is dissatisfied with in- likely is ‘more not than to flow from’ the given, give structions or desires court to Allen, County former.” Ulster Court v. instruction, particular or definitely more U.S. L.Ed.2d 777 sufficiently any or propositions state em- instructions, duty braced in it is counsel’s to prepare present to the such court In accordance with the Oklahoma Evi- Code, request desired instruction it judge be dence the trial shall instruct given. jury take exceptions “may regard Counsel should to the that it basic facts any fact, failure the court to as sufficient presumed said re- evidence *4 O.S.1980, quested required instruction. but is not to do so.” 12 2304(C). Title Section 2304 of the § case, In this the instructions taken provides: Oklahoma Statutes as a fully whole jury informed the of the B. The court shall not the jury direct proof State’s of on question burden the presumed a against find fact the ac- appellant’s “design the to effect death.” may cused. The only court submit the The trial court that: instructed question presumed of the existence of the (1) An essential element the crime juror fact to the if a jury, reasonable proved beyond that must be a reasonable considering whole, the evidence as a in- prove doubt to murder in the de- second cluding facts, the evidence of the basic gree is the killing design that with a beyond could find presumed the fact a death; to effect reasonable doubt. you If find the under evidence and pre- C. Whenever the existence of a beyond a reasonable doubt that the de- against sumed fact the accused establish- ceased was killed under circumstances guilt es or is an element of the offense or amounting to in murder the de- second negatives a defense and is submitted to gree, premeditated which includes a de- jury, judge the the shall an instruc- sign death, you effect shall the find explaining jury may regard tion that the committed; crime has been basic the facts as sufficient evidence of (3) If you entertain a reasonable doubt presumed required but the fact is not guilt as to the of the mur- defendant of presumed do so. Where the estab- fact you der in second degree, the find should guilt, lishes is an element of the offense the guilty; defendant not defense, negatives judge or also (4) You must unanimously conclude jury shall instruct the that its existence proved has defendant proved beyond be must a reasonable guilty of such or charge of such lesser doubt. included offense beyond a reasonable argument final is that doubt, should you entertain a reason- case-in-chief, ques in improperly its doubt, you able must resolve that reason- police regarding appel tioned officer able in his acquit doubt favor and him. post-arrest challenged lant’s silence. The judge We that properly find the trial arresting testimony was elicited from the jury instructed the of the State’s burden prosecutor to have officer and seems proof on the issue of intent and that rebutting been aimed at a self-defense ar potentially harmful of the effect instruction although there no evi gument, had been complained of was fun- cured. find no presented by dence at that defendant damental error. in point the trial. There is a conflict re arrest, garding transpired a presumption We further note that what at the but utilized, may provided be that ad- that it does not two officers testified adverse significantly not add to the victim, did after killed the he had mitted that Subsequent to the to be drawn. arrested. inferences which he was of his Miranda being advised alleged er observe that We further homi- nothing regarding the rights, he said review, properly preserved ror was not in- he was silent was cide. The fact that ap not raised in the since the matter was following testimo- against him the ferred trial and there pellant’s motion for a new ny: com objection prosecutor’s to the was no I did ... At this time [By the Officer] argument. En during closing ments rights him of his constitutional advise (Okl.Cr.1976). grana v. his fully asked him if he understood is AF- judgment and sentence he did. rights and he advised FIRMED. his Did he reaffirm [By the Prosecutor] he had shot him? statement that BRETT, J.,P. dissents. No, sir. [Officer]
BUSSEY, J., concurs.
you
Did he tell
the de-
[Officer]
BRETT,
dissenting:
Presiding Judge,
gun
ceased had a
at that time?
decision for
respectfully dissent to this
I
Attorney] Objection, Your Hon-
[Defense
of the
the elements
the reason I believe
or.
proved beyond a reasonable
crime must be
Overruled.
[The Court]
prove the elements of a
doubt. Failure to
*5
again
was
re-
appellant’s
silence
That
fundamental error.
crime constitutes
closing argument
in
when the
ferred to
objected
whether
type error can be raised
prosecutor
arresting
officer
stated that
State, 3
trial or not. Rea v.
Okl.Cr.
to at
appel-
had
a statement” from the
“[taken]
Further,
I believe
P. 386
appellant had not men-
lant at which time
Supreme Court decision
the United States
carrying
tioned that
the deceased was
Montana,
442 U.S.
in Sandstrom
State,
gun.
Burroughs
528 P.2d
(1979),
applica
killing to officers at the scene. readily warnings. It is given
then Miranda was silent
apparent theory even before
about his self-defense given. There- warnings
the Miranda were
fore, question we hold that the remarks