Kreijanovsky v. State, 706 P.2d 541

Kreijanovsky v. State

706 P.2d 541

Okla. Crim. App.

1985

Check Treatment

*1 Act, O.S.Supp.1984, fenders 995 et §

seq., for the crime of Second Bur- KREIJANOVSKY, Appellant, William glary, of After Former Conviction Two Fel- onies. Oklahoma, Appellee. STATE of assignments three raises No. F-83-221. error, however, of our decision the first Appeals Court Criminal Oklahoma. assignment dispositive of error of this appeal. Sept. 1985. complains the trial allowing

court im- erred State to peach credibility of the sole defense

witness, by asking questions that were not

probative of truthfulness or untruthful-

ness, O.S.1981, 2608(B), violation of prejudicial pro- were more

bative, in violation 12of 2403. agree. consistently

This Court has held that activity mere criminal accusations of or charges amounting arrest not con- victions are not available for introduction prosecution. Brown

P.2d 963 In this prosecution had no cause to

defense witness about involvement charge theft of television when no or against ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍conviction was had him. Since the prejudicial presented effect of the evidence

substantially outweighs probative val- had, may ue that it we are of the judgment and sentence be, appealed from should and thе same hereby is REVERSED REMANDED trial.

for a new J., P.J., BRETT, PARKS, concur. *2 Counsel, Barrett, Special Appel-

Mark H. Norman, Defender, for appel- late Public lant. Gen., Atty. Turpén,

Michael Robert W. C. Gen., Cole, Terry Jenks, Atty. J. Le- Asst. Intern, gal City, appellee. Oklahoma

OPINION

BRETT, Judge: Kreijanovsky William was convicted in Court, County Comanche District Case No. CRF-82-190, charges Degree of Second Arson, Burglary and First in viola- tion of 1435 and 1401. Thе §§ (6) years’ sentenced to six (15) years’ imprisonment, re- and fifteen spectively, consecutively. to be served property On was stolen March Phillips shortly from the home of Robert destroyed by fire. before his house was pickup similar to Several witnesses saw a Phillips’ neighbor- following Deputy comments from Sims on direct hood on the afternoon of the crimes. The examination: be- pickup circled Carol Marshall’s house Q. And what was the substance of the p.m. tween 2:15 and 2:30 Delores Given conversation? pickup parked Phillips’ at the home

saw A. We asked him about whether he had *3 p.m., 2:00 at one hour before she noticed area, in been out that and whеther he pickup the fire. was the observed at residence, had at been that and he said prior house less than ten minutes the to that he had taken the stuff from Mr. Ward, house, by neighbor Phillips’ fire Carl Roberts. Don and we to him talked on this asked and him the who lives one-half mile from Phil- where merchan- Robert at, dise was and he said it was still all lips, pickup, watched an identical loaded his residence Floyd, over on and furniture, we stop briefly with his front of him probably talked to twenty about min- experts house at p.m. 3:00 Fire testified this, utes on and then we when started that the fire was the result of arson asking anything fire, him the about he gasoline that was used to fuеl the blaze. lawyer. said he wanted a day following fire, the Crad- Ronald Q. During period your the of —course er, appellant’s, appel- a friend of the visited your conversation up to the time that Kreijanovsky’s lant home where he ob- requested he you did attorney, ask served “a lot of stuff whole that wasn’t questiоns ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍any him in regard to the fire? there After that explaining before.” first No, sir, A. not until talking we started sale, he had been garage appellant to a the to him. talked the burglary, about burglar- confessed to that he Crader had when talking then we started about Phillips’ ized Robert house. He denied fire, he the wouldn’t talk to us on that. stаrting the fire. wife, Pursuant to a call from Crader’s Q. that, Other were there oth- County Deputy Comanche Sheriff Harold er references to the fire? Kreijanovsky Sims arrested on March 31. of, A. None that I know no. station, appellant the signed At a Q. Okay. having After the conversa- burglary. waiver confessed to the him, you tion have testified to with what questioning When the two officers interro- you did do? gated regard Kreijanovsky to the arson Okay. 12:32, approximately A. At charge, appellant requested lawyer a 12:32, attorney, he asked for his so we speak. Immediately and refused to there- stopped questioning at time. sign after was asked to form authorizing consent-to-search search Q. requested attorney, he consent, After did signing

of his house. After you interrogate him any further? Sims, Kreijanovsky, and Banks went to appellant’s sir, No, home where fruits of the bur- pertaining A. not to the fire or can, along glary gas were seized with a anything. only physical was the link- evidence Tr. 131-33. ing the fire. to is improper prosecuting It for a purchased he the can on claimed March comment, attorney impeach even for carry fuel lawnmower he sto- for a had ment'purposes, on an accused’s failure to burglary. Kreijanovsky len in the denied give up the silent remain after he, way, started a fire at warnings. accused received Miranda Phillips. home of Robert Ohio, Doyle v.

Appellant’s assignment con- (1976); Neal, first of error 59 L.Ed.2d 91 State prosecutorial appel- cerns comments on the P.2d In instant During lant’s silent. appellant’s decision to remain evidence silence re prosеcutor peatedly during State’s case-in-chief elicited introduced State’s case-in-ehief, impeachment purposes not for at trial own whether he precautions on cross-examination. This makes the com- try took at the victim’s home to only pur- ments more offensive because the identity prevent discovery, to hide his or to prejudice pose served was to the defendant. he gloves answered that he had worn prosecutor wiped ceased after the first Had doorknob he had touched probably error would not have gloves. without the As testimo prejudicial. question- ny negated beеn His continued by demonstrating the defense however, error, ing, compounded faculties, caus- he was control of his mental ing prejudicial. instruct, it to be the court’s sponte, failure to sua voluntary intoxication was not error. State, Dungan comments in Similar (Okl. See Norman v. 648 P.2d 1243 (Okl.Cr.1982), 651 P.2d 1064 constituted Cr.1982). Dungan fundamental error. held that *4 tоtally such evidence was irrelevant and appellant contends that a Next questions proba- that since the were of no conviction for First Arson cannot value, prejudice their sole effect was to tive soundly be actually based when no one was appellant. during in the home the blaze. рrobative Due to the lack of value O.S.1981, 21 provides: 1401 § prejudicial of the evidence and its extreme Any person willfully who maliciously consequences, this Court is unable hold by sets fire to or or any burns the use of appellant’s post-arrest comment explosive destroys device or substance beyond silence was harmless a reasonable part, whole or in or causes to be burned charge. doubt as to the arson The arson aids, destroyed, or or pro- counsels or conviction must therefore be reversed. burning cures the or any destruction of beyond The comment was harmless a rea building thereof, or structure or contents doubt, however, as to the sonable occupied inhabited or by one or more charge light overwhelming of the evi persons, property whéther the of himself Thus, dence. that conviction does not war another, or guilty shall be of arson in the O.S.1981, rant reversal. Title 20 3001.1. § degree.;... added.) (Emphаsis first appellant alleges The also O.S.1981, 21 1402 reads as follows: § instruct, sponte, trial court’s failure to sua Any person willfully (vho maliciously voluntary on the issue of intoxication was sets fire to or burns or the use of error, fundamental because deyice explosive or destroys substance testimony that he had consumеd ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍five ¿art, whole or in or causes to be burned negated quarts specific of beer intent aids, destroyed, or pro- or or counsels charged. Initially element crimes burning cures the or destruction of specific we note that arson is not a intent unoccupied building uninhabited or or crime, voluntary intoxication is avail thereof, structure or contents whether as a defense able when the crime with another, property of himself or shall charged which the defendant is its as guilty of arson in the second de- specific mens rea element a _ criminal intent gree added.) (Emphasis special aor mental element. 21 O.S. See Jury The Oklahoma Uniform Instruction 1981, Boyd 1401 and 572 P.2d correctly Criminal 502 defines inhabited: (Okl.Cr.1977),respectively. 276 building “A or structure is deemed to be burglary, As to the any part normally evidence inhabited if itof is used presented in the regarding by any person instant case lodging.” Although for appellant’s intoxication dwelling present was insufficiеnt to case unoccu- was require According pied fire, instruction. to his at the time of certainly it was testimony, point own one place Phillips inhabited as the where the “decided” possessions family to load the victim’s lived. anWhen inhabited structure appellant’s pickup burned, into probability truck. When askеd is being someone very high. high inside is Due to such a voked his to counsel is tantamount to probability, persist firefighters risks interrogation and violative of his Miranda rescuers who people believe that are rights.

present. We hold that The safeguards Miranda come burning allows a conviction for the willful play into whenеver there exists both custo building of a presently or structure used dy and interrogation. Miranda v. Arizo lodging, notwithstanding for the absence of na, 16 L.Ed.2d occupants at the time of the fire. (1966). While in custody, appellant appellant complains signed waiver interroga and was prosecutor’s prejudiced cross-examination ted on the burglary charge. the outcome prosecutor at trial. The in requested counsel when the discussion quired whether the defendant telling turned to the charge. arson “If the indi the truth. query This culminated in the vidual states that he wants an attorney, the question, you expect “Now do jury interrogation must cease until an attorney you today you friend, believe if your lied to present. time, At that the individual Crader, day occurred, Ron after this must opportunity have an to confer with you got about where the stuff?” We find present and to him dur question acceptable impeachment ing any subsequent questioning.” Id. at purposes. 474, 86 S.Ct. at 1627. complains further After Kreijanovsky’s request, express *5 photographs that of the scene of the fire questioning However, did cease. “the term improperly were admitted and that evi ‘interrogation’ under Miranda refers not dence of other crimes was introduced with express to questioning, but also to following Statе, out the rules of Burks v. part words or actions on police the of the (Okl.Cr.1979). 594 P.2d 771 Neither issue police ... should know are reason- properly is before this photo Court. The ably likely incriminating to elicit an re- graphs were not included in the record for sponse suspect.” from the Rhode Island the duty Court’s review. It is the оf the 291, Innis, 301, 1682, v. presence to the ascertain of ex 1689, (1980). 64 L.Ed.2d 297 hibits, upon which rely, he intends to be fore submission of the record to this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Court. signature, itself, may While a in and of State, England (Okl.Cr. v. 496 P.2d 382 incriminating, not be resulting the action 1972). Because the object did not signature taken may on often lead to at trial to the admission of evidencе of incriminating response. an appel- Since the offenses, other the Burks issue was not already lant committing had confessed to properly preserved for Young review. See burglary, police good had reason to State, 531 P.2d 1403 know that a consent to search would be reasonably likely incriminаting to elicit the Finally appellant complains of the response produce. that it did in fact allegedly introduction of evidence seized items from gas and the can after alleges a Miranda violation. He . proved very to incriminating be at trial. given his consent to search was after he right had invоked his to counsel and that request A for consent to search is pursuant the evidence obtained to the inval- equivalent” express “functional of id consent search sup- should have been questioning under Rhode Island v. Innis. pressed. properly While this issue was not interrogation Such cannot occur after a preserved appeal, for on review we address right defendant has invoked the to counsel. this as it is likely a novel one to be Miranda, 436, 384 atU.S. 86 S.Ct. at 1602. charge. issue on retrial of the arson question presented request- is whether purpose warning of the Miranda is ing an accused in custody who is to execute to custody inform an individual in that he a may consent-to-search form after he in- interrogation has refuse further and ob-

546 objection gas no admission of the can rights. to his New to the advice as legal tain trial; thus,"the prohibited consti- defendant court ruled that it is highest York’s appeal by police asserting from this errоr for officers tutionally impermissible O.S.1981, 2104(A); instance, see also for to search after a defendant to seek consent (Okl.Cr. 303 P.2d 449 be- Thacker v. requested custody 1956). ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cause: rights no less at are

The defendant’s Furthermore, alleged if the had error of no less the advice counsel stake and preserved aрpellate re- properly been police relinquish- seek a if the important view, gas I am can of the right constitutional of defendant’s ment I suppressed, agree should as do not not be against to unreasonable be secure majority opinion’s interpretation with they a if seek and seizures seаrches application Supreme Court’s against privilege self in- his waiver of Innis, holding supra. in Rhode Island crimination. In that had the defendant been ar- Johnson, 565, N.Y.2d 423 N.Y. People v. shotgun rested near a school for mur- 936, (1979). N.E.2d S.2d a and the der of taxicab driver armed rob- knowledge bery of another. With ap Having asked for cоunsel the shotgun very possibly concealed in legal to as to his pellant was entitled advice proximity close to a school near loca- consequences rights as to the arrested, tion where the defendant was In appel this to the search. sense consent officers, police transporting Innis who were en Amendment were lant’s Fourth house, in a engaged to the station conver- warning. Fur compassed by the Miranda danger weapon regarding sation had Fifth both a thermore the posed Consequently, to the children. Innis and State constitutional Amendment responded request to return to the with provide coercion to free from gun get scene as out of he “wanted police tend evidence which would with way of the kids in the because area him. Okla. Const. art. incriminate found police the school.” The were to have 21. *6 engaged practice in a improperly conclude once аn individu they should have is rea- “know [or known] requests attorney, interro custody al in sonably incriminating likely to evoke must not seek further con officers gating However, response suspect.” in the from a admissions, whether form of sensual bar, case at I am of the search, confession, consent to or waiver of to search form signing mere of a consent privileges. other illgotten goods of his so that residence RE- Burglary AFFIRMED as to regained, expeditiously could be was not an to the Arson. as incriminating response prohibited VERSED Rhode Nothing in the record

Island v. Innis. PARKS, P.J., concurs. supports holding finding gas can the law was a result enforcement BUSSEY, J., part, in concurs dissents agents reasonably could or should part. known follow from defendant’s would BUSSEY, Judge, concurring part, dis- signing to search form. of the consent senting part: judgment

I sentence agree that conviction should af- however, firmed; agree I do not to the arson conviction insofar as reversal of the Innis, upon it was Rhode Island v. based supra. The record reveals that the defend- he had specifically

ant’s counsel stated that