Daniel D. HOLLIDAY, Appellant, v. STATE of Oklahoma, Appellee.
No. F-85-544.
Court of Criminal Appeals of Oklahoma.
May 20, 1988.
755 P.2d 124
Robert H. Henry, Atty. Gen., M. Caroline Emerson, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
BUSSEY, Judge:
Thomas Jesse Ward was convicted in Pontotoc County District Court of Robbery with a Dangerous Weapon, Kidnapping, and Murder in the First Degree. He received sentences of twenty (20) years’ imprisonment, ten (10) years’ imprisonment, and the death penalty, respectively. Also tried and convicted was codefendant, Karl Fontenot. Fontenot v. State, 742 P.2d 31 (Okl.Cr.1987). As with Fontenot‘s convictions, we find Ward‘s convictions must be reversed and the case remanded for new trial.
At the joint trial of Ward and Fontenot, the pretrial confessions of each which inculpated the other were admitted though neither defendant testified at trial. The trial judge followed the plurality opinion of the United States Supreme Court in Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), which held that it was not error in admitting the confession of a codefendant which incriminates the defendant even though the codefendant did not testify if the defendant‘s “interlocking” confession is also admitted. The Supreme Court has since repudiated this rule in Cruz v. New York, — U.S. —, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). Because of the violation of the defendant‘s right to confront the witnesses against him, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), this Court reversed codefendant Fontenot‘s convictions. Fontenot, supra. Because this same error occurs in appellant‘s case, we hold that appellant‘s convictions must also be reversed. While the ban on the use of a codefendant‘s incriminating statements is not absolute, see Cruz, codefendant Fontenot‘s statement does not fall within an exception.
For the foregoing reasons, we reverse appellant‘s convictions and remand for new trial.
BRETT, P.J., and PARKS, J., concur.
Robert H. Henry, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
BUSSEY, Judge:
The appellant, Daniel D. Holliday, was convicted in the District Court of Comanche County Case No. CRF-84-518 of the crime of Second Degree Burglary of an Automobile as an Accessory after the fact in violation of
At approximately 4:00 p.m. on the afternoon of October 29, 1984, an employee of a Lawton grocery store who was leaving for his dinner break caught the appellant‘s codefendant, Ron Darling, in the act of Burglarizing his pickup. The employee wrestled with Darling in an effort to subdue him. Darling escaped by hitting the pickup owner over the head with a stereo speaker he had taken from the pickup.
Responding to the owner‘s cries for assistance, several other people gave chase as Darling ran away. Darling was followed by at least four people as he ran behind the neighboring houses, jumped fences and ran down alleyways, ending up in an area behind the grocery store where the appellant was waiting in his car.
One of Darlings pursuers saw him get into the appellant‘s car. Another pursuer, who had circled around the house behind the store and was coming from the oppo
The appellant dropped Darling off a short time after they left the alley. Later that day, while the appellant was driving in his car nearby with another friend, a police officer who recognized the appellant‘s license tag number pulled the pair over. He briefly detained them while other officers brought an eyewitness over for identification. Because the witness could not identify either as the person who burglarized the pickup, the appellant and his friend were allowed to leave. The appellant was not arrested until three days later.
As his first assignment of error, the appellant argues that his statement was obtained as a result of an unlawful warrantless arrest. In support of this argument, the appellant directs our attention to the fact that no copy of the alleged warrant appears in the record, despite the appellant‘s designation of “all other papers filed” in the case.
The settled law is that a suspect may not be apprehended, detained, and forced to go with the police to another location absent a warrant or probable cause. See Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). In the past, this Court has stated quite explicitly that failure to raise this issue prior to entering a plea waives its consideration for appellate review. See Rushing v. State, 676 P.2d 842, 849 (Okl.Cr.1984); Raymer v. City of Tulsa, 595 P.2d 810 (Okl.Cr.1979); Stone v. State, 461 P.2d 962 (Okl.Cr.1969). Therefore, if there was a question regarding the legality of appellant‘s arrest, any alleged error has been waived.
Next, the appellant states that it was reversible error for the trial court to admit his purported post-arrest statement into evidence. Even if we assume that his arrest was illegal, we are not convinced that his statement given the next day was tainted.
The appellant maintained at trial, and again on appeal, that the alleged statement was neither accurate nor voluntary. Significantly, this is the only evidence presented on this question. The appellant did admit signing the statement, though he claims never to have read it even though the officer who took the statement testified otherwise.
Testimony was offered that the appellant had received his Miranda warnings before he indicated his willingness to give a statement. There is no evidence of official misconduct, and no intervening circumstances are disclosed in the record which would bring the reliability of the statement into question. Because these factors all weigh in favor of the State, we can only conclude that the statement was voluntary and that the appellant‘s second assignment of error, as well as his after-the-fact disclaimer, is without merit. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Cooks v. State, 699 P.2d 653, 657 (Okl.Cr.1985); Williams v. State, 542 P.2d 554, 572 (Okl.Cr.1975).
The appellant‘s third assignment of error is that prosecutorial misconduct during closing argument denied him a fair trial. Specifically, appellant refers to a portion of the closing argument in which the prosecutor stressed the contradictions between appellant‘s statement and his testimony in court. The prosecutor concluded with the comments to the jury that, if the statement was true, appellant‘s in-court testimony “makes him a liar. If it makes him a liar, then I don‘t think you can believe anything that he‘s told you here today....”
The appellant cites Lewis v. State, 569 P.2d 486 (Okl.Cr.1977), for the proposition
Here, not only is the above passage the only instance of possibly questionable argumentation, but it passed without objection. See e.g. Williams v. State, 733 P.2d 22 (Okl.Cr.1987) and compare Lewis v. State, 569 P.2d at 490. Further, considering the discussion in context, we believe that the prosecutor‘s argumentation was well within the liberal constraints of free speech this Court has approved in the past. See e.g. Matricia v. State, 726 P.2d 900 (Okl.Cr.1986); McDonald v. State, 553 P.2d 171 (Okl.Cr.1976). It was only the prosecutor‘s choice of the word “liar” that was unfortunate. This assignment of error is without merit.
Next, the appellant argues that there was insufficient corroboration of the principal‘s testimony to support appellant‘s conviction as an accomplice. Here, too, we disagree.
Darling testified that the appellant drove through the parking lot where the pickup truck was parked, and that both the appellant and Darling agreed to burglarize the truck. This testimony is corroborated directly by the appellant‘s post-arrest statement. Further, the witnesses testified that the appellant‘s car was the getaway vehicle and that the appellant was driving. This testimony is uncontradicted. We have found this to be sufficient corroboration in similar cases, and do so here as well. See e.g. Glaze v. State, 565 P.2d 710 (Okl.Cr.1977); Hambrick v. State, 535 P.2d 703 (Okl.Cr.1975). This assignment also lacks merit.
Lastly, the appellant states that cumulative errors denied him a fair trial. In view of our conclusions in the preceding assignments, this last assignment is clearly without merit. Accordingly, the judgment must be AFFIRMED. However, in light of the holding in Swart v. State, 720 P.2d 1265 (Okl.Cr.1986), to which this writer dissented, in which this Court found the Oklahoma Nonviolent Intermediate Offender Act,
Accordingly, the judgment is AFFIRMED, but this matter is REMANDED for resentencing in a manner not inconsistent with this opinion.
BRETT, P.J., concurs.
PARKS, J., specially concurring.
PARKS, Judge, specially concurring:
I agree that appellant‘s conviction should be affirmed but choose to comment on the improper comments made by the prosecutor. The prosecutor stated that appellant‘s testimony made “him a liar.” Clearly, the comment was improper; however, no objection was made by defense counsel, therefore we may review only for fundamental error. Tart v. State, 634 P.2d 750 (Okla.Crim.App.1981).
This Court has repeatedly held that although the prosecutor may comment on the evidence and draw logical inferences therefrom, he cannot inject his personal opinion or beliefs by speculating as to the truthfulness of the defendant. Henderson v. State, 695 P.2d 879, 883 (Okla.Crim.App.1985); Lewis v. State, 569 P.2d 486, 489 (Okla.Crim.App.1977). While the comments made in the present case were improper, I cannot say that they rose to the level of fundamental error. Accordingly, I concur.