Payne v. State
744 P.2d 196
Okla. Crim. App.
1987
Check Treatment

*1 objection, trial court sel’s stated that is evidence.

argument Where de evidence, fails to offer

fendant prohibited stating is not against the defendant is

that the evidence and, having examined

uncontroverted

comments, they directly did not call the appellant’s

attention of the fail Tinney testify.

ure to See 65, (Okla.Crim.App.1985), 66-67 cert. — —,

denied, U.S. S.Ct. (1986). assignment

L.Ed.2d 668 This

without merit. foregoing

Accordingly, for all of the rea-

sons, judgment and sentence is AF-

FIRMED.

BRETT, P.J., BUSSEY, J.,

concur. PAYNE, Jerry Payne, and Jeff

Payne, Appellants, Oklahoma, Appellee.

STATE of

No. F-85-102. Appeals

Court of Criminal of Oklahoma.

Oct. 1987. *2 Intern, Ogilvie, Legal

W. City, Oklahoma appellee. for.

OPINION BUSSEY, Judge: appellants, *3 Payne, were in convicted the District Court of County, CRF-81-31, Adair No. Case of Knowingly Concealing Stolen Property, and were sentenced four and three years’ imprisonment, respectively. They appeal assignments raising four of error. appellant, Payne, Robert raises one assignment separately Jerry of error Payne, Payne, and Jeff who was convicted crime, in the same trial of the same and days’ imprisonment, was sentenced to 180 single error, assignment raises a of sepa- Jerry rate from Payne. those Robert stated, Briefly May the facts are that on 2, 1981, law enforcement officers executed a search warrant on the farm of Robert Watts, Payne at Oklahoma and recovered ten of taken fourteen calves from the Univ- ersity of Arkansas Beef Farm Savoy, at remaining Arkansas. The four calves were discovered at a sale barn in All Iowa. in fourteen calves had tattoos their ears for During the identification. search the offi- items, cers seized including various other a tractor, logsplitter, Kubota pan- and wire els. At trial evidence was introduced to show that were also stolen. items presented The defense evidence to show belonged Danny Hudson, the calves brought son-in-law of Robert who farm. Payne cattle to the purchased testified that he four of the Iowa, calves from to sell in but that he did not know stolen. assignment In their first of error appellants, Jerry Payne, allege that which the search resulted property illegal. recovery stolen appellants urge subpropositions. five First, argue that the affidavit for the Palmer, Deputy Appellate Patti Public search wararant deficient because it Norman, Defender, appellants. failed to the affiant or the show that either Gen., Turpén, Atty. personal Michael confidential had knowl C. Tomilou informant Gen., Liddell, edge Gentry Atty. Timothy located on the Asst. immediately upon stated that calves were discovered The affidavit farm was stolen. officers, proven had the arrival of the the search war- who confidential informant agree given the rant was exhausted. While we past had affiant reliable belonging may calves officers continue search and of stolen the location Arkansas, having seize evidence after found the items University of stolen warrant, Agee. Phelps H. listed the search belonging to Charles see horse trailer (Okl.Cr.1979), that the informant we dis- The affidavit stated previous agree appellants’ with the assertion that occasions within on three property, was exhausted. The warrant given the location week warrant had authorized the search and the information seizure four- and that each time cattle, only head which ten further stated that teen proven reliable. It Therefore, adjoining found. the warrant was not public road from a exhausted, farm, justified cattle and a officers were had observed the affiant extending remaining sto- their search for the description fit trailer which proper standard in de- four cattle. property. len *4 validity of an affidavit for a termining the argues subproposition fourth Their the is to examine whole search warrant allowing judge the in that trial erred the the totality of circum- affidavit under the during admission of evidence seized the 213, Gates, 462 U.S. stances. Illinois v. farm, of the but which was search 2317, (1983). 527 103 76 L.Ed.2d S.Ct. The named in the search warrant. trial not whole, facts in the as a the When viewed plain in that the items court found were reliability the pertaining to the of affidavit view, The and were therefore admissible. informant, along person- the affiant’s police offi appellants claim that when the goods, were of the stolen al observation the warrant for the calves cers executed probable to there was sufficient determine trailer, looking actually and property was that stolen cause to believe specific property items as other of farm, and to meet the located on the the items They further claim that well. Gates test. the officers seized were not immedi urge appellants in their second The being They ately as stolen. identifiable the search warrant was subproposition that the seizure of the additional conclude that buildings authorizing a invalid search meet the “inadvertent” and items failed to they allege property in which the named requirements apparent” “immediately The appellants be com could not found. Coolidge v. plain doctrine. See the view after plain that the residence was searched 443, 91 U.S. S.Ct. Hampshire, 403 New ten of calves and trailer had been 2022, (1971). Concerning 29 L.Ed.2d 564 located, four calves and that the other standard, Coolidgestates the “inadvertent” They have in the residence. could not been police may in advance not “know allowed conclude that because warrant and intend location of [certain] residence, be of the the warrant a search it,” plain relying view doc seize on to However, came search warrant. a blanket Brown, only pretense. as a Texas trine re the search warrant an examination of 1544, 730, 743, 1535, 75 103 S.Ct. 460 U.S. specificity the veals that it described with (1983), Coolidge, 403 quoting L.Ed.2d 502 seized, therefore was property to be and U.S., S.Ct., While one at at 2040. general. fact that articles outside not “The police may infer from the record that seized does scope of the warrant were suspi- present during the search officers general warrant.” it not convert into property would certain stolen cioned that (Okl.Cr. Caffey farm, found be on 1983). Furthermore, justify ex it does record portion to do refer spe property cluding the seized which testimony officers that the where there cifically described. property knew advance that farm, probable at or even had subproposition, the located In their third to it was there. since ten of the cause believe appellants assert seized and admitted into evidence with- his rights. invoke Fifth Amendment plain of the cattle view when the cattle record prosecutor’s reveals that the exami- seized, and the officers were not brief, obli- nation of very Hudson was only gated eyes suspi- close their to when their included questions. two cions An name, were confirmed. examination asked Hudson his and then if he where Payne. record shows that the officers knew Robert ques- To the latter tion, their search into areas extended where the “going stated he was to stand discovered, missing cattle could not be on the Fifth Supreme Amendment.” The evidence seized those locations was ex- Court the United States articulated two principles cluded. calling on which a witness to the stand who then invokes his Fifth Amend- “immediately apparent” privilege may ment constitute reversible Coolidge, requirement of clearly record first, “prosecutorial misconduct, error: shows the officers knew that certain when the Government makes conscious stolen, items had be flagrant attempt its build case out descriptions come familiar with arising of inferences from use of the testi- items, recognized those them when second, privilege”; monial when “in executed warrant seize the cat case, given of a circumstances inferenc- Brown tle. states that the decisions fromes a witness’ refusal to answer added Supreme Court “have come to reflect weight prosecution’s critical case in if, lawfully rule engaged while subject a form cross-examination, particular activity place, police in a officers unfairly prejudiced and thus the defend- perceive object, suspicious they may seize States, ant.” Namet v. United 373 U.S. U.S., 739, 103 immediately.” at S.Ct. *5 179, 186-187, 1151, 1155-56, 83 S.Ct. 1542. Brown further states at po that (1963). Concerning L.Ed.2d 278 the first lice need not “know” officer that a certain principle, nothing we find in the record to item is of a evidence crime order to seize prosecutor attempted show that the to use it, only probable but need have cause to case, Hudson’s to silence build the State’s may believe be useful as evidence as we do find not his silence mentioned police crime. As the prop officers acted Concerning princi- elsewhere. the second erly, assignment this of error is without given ple, case, the circumstances of this merit. dowe not believe that Hudson’s refusal to assignment their second of error the any weight answer added to the appellants contend their Sixth Amend- case, tion’s and therefore find preju- we no right ment to confront witnesses was de- dice. against nied when accusations were them appellants’ As the subpropo- second introduced, but the accuser refused to testi- sition, they argue hypothetical fy. Hudson, Danny Payne’s son-in- questions prosecutor which used in his law, brother-in-law, Payne’s Jerry Payne cross-examination was er brought prison from by testify the State to ror, and caused them to denied be their concerning which statements he had made right Sixth Amendment to confront the wit May, October, and November against nesses them. The Paynes which implicated the the theft following questions: asked However, the cattle. when to the called selling “If denied [Hudson] stand, Amendment, he invoked the Fifth you, to telling calves would he be being granted immunity, and even after he truth?” testify. pros- refused to Subsequently, the hypotheticals, ecutor used apparently upon statements,

based Hudson’s to cross- “If says he these calves came Jerry Payne. examine University you, of Arkansas Bob Payne participated, Jeff first subproposition ap telling is he not the truth?” pellants is that Hudson should not have put been on the jury stand before the Furthermore, that he Danny Hudson has said victed. evidence was

“If ad- calves, because, sell them own these didn’t missible as we have previously didn’t telling stated, he be the truth?” would in cases you, where a defendant charged concealing property, answer- questions, Payne To each of these “possession property by of other stolen might “no, Although have ed sir.” tends to defendant show the defendant’s state- Hudson made these inferred that guilty knowledge.” Taylor intent and ments, they that what had instructed (Okl.Cr.1982). evidence, say is not and such attorneys complaint that some of improper. would have been inference overwhelming against through was admitted hearsay evidence Given the ap- testimony, specifically do find that the appellants we that officers testi- pellants prejudiced by they knowledge this cross-ex- were fied that that certain assignment stolen, of error has amination. This property seized we need only no merit. reponses note that the record reveals these why property of the officers concerned appellants’ assignment third prove was seized and not offered to alleges denied due of error were the items were stolen. The true owners of subproposi process of law. As their first tractor, logsplitter, the wire tion, appellants claim evidence of concerning panels ownership testified their other was admitted in violation crimes and that their had been taken forth rules set Burks v. possession permis- from their their without (Okl.Cr.1979). complain that They P.2d 771 find this sion. We contention be merit- day given required ten less. notice, that the evidence is inadmissible required ex it does meet the

because subproposition In their un second admitting ceptions against the rule other error, assignment appellants der this evidence, evi crimes and that some of the prejudiced by contend that through improperly dence was admitted remark made an officer volunteered testimony. The which hearsay evidence of witness, implicated a Lois which defense complain appellants was seized at writing in the “hot crime as the calves. In each case the same time characterize this checks.” *6 charged Knowingly appellants were with harpoon. Al evidentiary an remark as Concealing re Property. Stolen Burks improper, may a remark it though such be quires day to use a ten notice order harpoon properly characterized as is not of other crimes. The record re concerning evidentiary the cases because the notice was filed on the tenth veals that at defend harpoons concern remarks aimed day copy trial and a was mailed before ants, witnesses. statements are not Such appellants attorneys. their But this and crimes, is of other which one not evidence always As we necessary. is not notice evidentiary harpoon, of the criteria of State, P.2d 163 in Melvin v. 706 stated that implication there is no the because (Okl.Cr.1985), part of offenses which are a Nelson v. appellants were involved. See offense the entire transaction of (Okl.Cr.1984). State, P.2d 744 closely so as to charged, and are related object reveals that defense counsel record surprise, which the element of eliminate remark, court sustained ed to the the trial prevent seeks could be Burks case objection, and the court instructed the proven As day the ten notice. without jury to consider We find that the it. charges of been for all these crimes had This conten cured instruction the error. went to year filed a before defendants is meritless. tion bar, trial case at and all of the stolen on the appellants subproposition, the In a third during the same property had been seized by the State argue testimony that elicited appellants not have period, time could son Payne, another charged All which revealed James surprised. been of the crimes time Payne, prison at the concurrently of Robert was were committed with trial, by the testimony introduced charge appellants for which the were con- of and concerning Payne’s Furthermore, State Robert activities not. judge the trial stated jail trial, awaiting question juror while he was was he would that in cham- value, probative preju- and without was Defense bers. counsel did not ask that a made, appellants. testimony dicial con- to the record be find and we none. There- cerning Payne’s complaint James incarceration was fore this properly has been during Jerry preserved. State, elicited cross-examination of Martinez v. objection (Okl.Cr.1977). Concerning over the defense coun- 497 the cheek speculate Appellants sel. that was prosecutor’s which left on the counsel imply being table, tor that wished to James was the trial court stated that the check something punished excluded, and therefore had been he did not see family rest of the now on trial must prejudiced. how could be guilty. speculation Such apparently also be does not There no testimony appellants’ showing concerning cheek, meet the burden agree and we with clearly judge that the trial court’s discretion prejudice was trial that no has been abused, preju- there was or that manifest This subproposition shown. is also without State, appellants. dice to the See Hall merit. (Okl.Cr.1985).

698 P.2d 33 Payne’s Robert assign- As last subproposition error, In appel- argue the same ment that the trial complain testimony lants the sheriff court failed to instruct on their rebutting testimony defense, theory of Lois that is that did not husband, her Robert ill. Al- guilty knowledge have the necessary to though they argue testimony They that the was warrant conviction. admit that no value, probative without requested. fail show instruction was A review of Hall, prejudice, see this sub- therefore Instruction No. 4 clearly reveals proposition law, meritless. the applicable is states therefore we State, do find error. See Tate v. subproposition, As their fourth (Okl.Cr.1983). assign- This appellants allege dur three events of error is clearly ment meritless. ing prejudicial the trial resulted in error. A separate assignment saddle which had been ruled inadmissible his brought courtroom, juror error, alleges into the insuffi witnesses, had lunch two State and a cient evidence was introduced convict check which ruled if inadmissible was him. test to determine the evidence left presented support out on State’s counsel one table where sufficient to the con juror stopped way Spuehler and looked at it on the is stated in viction saddle, (Okl.Cr.1985). out to reviewing deliberate. P.2d 202 After judge light trial saw the sheriff enter the evidence most favorable to saddle, caught courtroom with his at if trier a rational of fact could it, tention and motioned for him to remove have found the elements of the essential *7 situation, doubt, reviewing beyond which he did. In crime the evi reasonable judge considering posi support is stated dence sufficient to the convic sheriff, tion jurors of the and that of the he The essential of the crime tion. elements did jurors Concealing see Knowingly Property believe that could Stolen saddle, first, knowledge that defense counsel had failed to are that the stolen, timely objection, question second, make a and that the act of was conceal ing jurors ing improperly rightful would call atten some manner from its tion to the saddle. We find the trial owner. Bookman v. 661 P.2d 909 (Okl.Cr.1983). properly appel court Knowledge may acted and that the be inferred lants were prejudiced. from the facts and circumstances surround witnesses, juror lunch the had with ing part the two the case. of those this case both if prop witnesses called and asked circumstances was other stolen they had erty appellant’s property, discussed the case in manner found on juror, with guilty stated had which admissible to show knowl (Okl. hearing A second self-incrimination. edge. Taylor v. Danny jury’s presence. out of the Hud- Cr.1982). reveals that then held The evidence testify, his appellant’s residence son reiterated intention not at the arrived calves, appar despite immunity, with and was head of assurances fourteen with acquired contempt. Certainly, he ently explanation for how cited for no time, other stolen thought testify the same Hudson’s refusal them. Around tor ap case; otherwise, of the at the residence appeared help items the State’s he would time. unemployed at the pellant, who was not have called a witness that he would appellants were of the three ques- In fact none refuse to answer his knew would reveals holds, time. The record employed But, at the majority correctly as the tions. test, Spuehler evidence meets that the alone does not warrant reversal. assignment of error is this States, 179,186- and therefore Namet United 373 U.S. meritless. 1151, 1155-56, 10 L.Ed.2d 278 83 S.Ct. (1963). single assignment of er

hisAs ror, alleges that the evidence Jeff However, prosecutor did not let it him. to convict presented insufficient After Hudson refused to testi- rest there. given Spueh- considering the test When Drake, fy, called Gene ler, is also suffi the evidence we find that investigator, purpose the sole criminal juryA can appellant. cient to convict this asking him if he had obtained a confes- explanation of unsatisfactory consider regarding the cattle sion from Hudson by the defense. Lu offered possession incidentally, ap- charge, for which theft —a (Okl.Cr.1981). State, 626 P.2d 869 man v. being After Drake pellants were not tried. that she mother testified appellant’s This question, to answer the was not allowed of the boys presence her about asked testimony con- of Drake’s the remainder tractor, explanation, no but received concerning answering questions sisted question.” He all “evaded about the theft interview of Hudson trip parents and made lived with his items. various other father when four his brothers and trial, during cross-examina- Later This were sold Iowa. the stolen calves following appellants, tion of one of merit. assignment is also without dialogue place: took AF- are judgments and sentences to Iowa Q. hauled these calves ... You FIRMED. Now, Danny Hudson you sold them. you (Ob- selling these calves denies —

BRETT, P.J., in results. concurs denied) made and jections were PARKS, J., dissents. selling right here denies Q. If this man PARKS, dissenting: Judge, telling he be you, would calves to these the truth? majori- respectfully disagree with I pros- ty’s opinion that the comments No, A. sir. alleged testimo- regarding Hudson’s ecutor from calves came Q. says If he appellant. prejudicial to the ny you, and that University of Arkansas started, an in camera participated, Before the trial Bob and Jeff pos- regarding telling Hudson’s truth? hearing was held is he not testimony. admitted witness sible No, A. sir. Arkansas, but he extradition waived also by Hudson were made Statements *8 only to avoid the authorities he did so said in the same testi- jury later put before the uncooperative. claiming he was later mony: hearing, specifically stated During he this he has said Q. Danny If Hudson testify. refused to that he on two occasions calves, them didn’t sell these didn’t own announcement, prosecutor the Despite this telling truth? he be you, to would witness, immediately and he called him as a No, sir. right against A. claimed his Fifth Amendment 204 State, 44, (Okla.Crim. Danny you, Daney Hudson tells us that 370 P.2d

Q. If v. 45 and himself took Bob App.1962): University Ar- cattle from the grave duty prose- It is a breach of for a kansas, truth, telling he would be cuting attorney by to seek innuendo or he? wouldn’t procure by inject- artifice to a conviction ing into the case facts or conclusions not No, A. sir. upon the based evidence adduced at trial. essence, hypothetical questions In presentation especially prejudicial Such affirmatively posed by prosecutor light of the fact that it arose out of a alleged placed jury testimo- before privi- claim of the witness’s constitutional Hudson, who refused to ny of a witness lege against such, self-incrimination. As testify. right were denied the interpreted only as This conduct can be effective cross-examination and were left get attempts by prosecutor to blatant powerless to combat the inferences raised. testimony to the from a witness who reasons, For these I would reverse. occasions, separate three in two hear- on disagree majority’s I also with the use of testify. ings, refused to This Court cannot Gates, 213, Illinois v. U.S. S.Ct. flagrant of Section tolerate such violations 2317, (1983), determining 76 L.Ed.2d 527 3-5.7(e) of The ABA Crimi- Standards for validity ap of a search warrant. The Justice, Function, The Prosecution nal pellant challenges validity of the war (1980), which reads: rant on both state and federal constitution (c) prosecutor A should not call a wit- grounds. agreed al While this Court has prosecutor ness knows will claim who apply the test to federal constitution Gates privilege testify for not to valid challenges, “totality al of the circum impressing upon jury the purpose of adopted yet stances” test has not as In privilege. fact of the claim of some applicable standard for a state constitu instances, profes- as defined in codes of State, tional claim. Tosh 736 P.2d See doing responsibility, so will consti- sional (Brett, J., (Okla.Crim.App.1987) unprofessional conduct. tute Parks, J., result); concurring in both Fos improper prosecutor for the to build It is State, (Okla.Crim.App. ter 742 P.2d 1131 through his case the use of innuendo de- 1987). reason, this I For would continue privilege. claim of As rived from valid apply imposed the standards we have in the by present the record in the demonstrated past regards to state constitutional case, exactly strategy by used that was challenges. 645 P.2d See McGee v. prosecutor continued to insert when he 529, (Okla.Crim.App.1982); Luker v. “hypotheticals” the witness as to what (Okla.Crim.App. would have testified. 1973). present Under the standards fol distinguish The tactics used here this Court, was mini by lowed this the warrant Namet, case from Namet. there was no McGee, supra, 645 mally sufficient. See government attempted P.2d at 530-531. flagrant attempt make a “conscious and reasons, I For the above stated would arising from its case out of inferences build validity uphold the of the search warrant. Namet, privilege.” use of the testimonial However, my opinion, preju- the undue Nor supra, at 83 S.Ct. at 1154-1155. by prosecutor’s conduct dice caused present there the situation where appellant fair trial. On deprived the of a prosecutor or should have known knew foregoing, I dissent. the basis of the testify. would refuse to witness posed by hypotheticals being testimony tor amounted to his own

put jury, ques- he based his before the as proven

tions on facts not evidence. aptly

duty of the stated