Shepard v. State

Capital regulations, Corpo- sell nonaccrual loans to Farm Credit Administration addition, In power to: ration at fair market value. and includes the may Capital Corporation fore- initiate purchase “(16) fair market value ineligi- closure actions where the loans are institution, the re- any System other restructuring ble for assistance. The farm institution, (or inter- quest of such loans legislation moratory foreclosure neither im- loans) placed in ests in that have been pairs integrity mortgage (or interest indebt- nonaccrual status and assets nor assets) acquired edness alters the contract rate of inter- the account est. The properties; Federal Land Bank and its Asso-

ciations not pro- are left reasonable without security. tection their investment refinance, reamortize, “(20) guarantee, present substantially circumstances differ indebtedness, compromise or and other- in Waterfield, from those supra. Unlike assistance, provide adjustment wise debt today, remedy there was no federal avail- respect any with loan to a borrower of mortgagees to the nor able was the mora- System purchased institution under System Farm torium restricted to Credit (16) paragraph participated by or institutions. and, Capital Corporation, after a determi- I Corporation would therefore find that under the Capital nation authority Blaisdell, reasonably supra, the Act does the borrower could be anticipated servicing not federal to meet loan violate state and contract refinanced, reamortized, II, charges under a clauses and Article the Oklahoma § reasons, foregoing I or otherwise restructured loan under rea- For the Constitution. acceptable respectfully sonable terms and conditions dissent. Capital Corporation, liquidate any

to the loan,”22 such I am authorized to state that SUMMERS, JJ., LAVENDER and challenged legislation reasonably is expressed. concur the views herein limited to the Federal Land Bank of Wich- any ita and Federal Land Bank Association

inasmuch as the Federal Land Bank of

Wichita, Oklahoma, which serves is the

only system entity in Oklahoma that makes

long-term loans to farmers for real estate

purposes, non-system and other lenders do remedy requesting Cap-

not have the Corporation purchase ital their bad loans SHEPARD, Appellant, T. Booker By authorizing at fair market value. Corporation Capital to initiate a foreclosure explicitly provides action the Act for an Oklahoma, Appellee. STATE exception prohibition of initiation of F-85-116. No. during foreclosure actions the moratorium. view, Appeals my appro-

In of Oklahoma. the Act of character Court Criminal emergency priate to the economic May 1988. agricultural industry upon based conditions that afford safe- reasonable

guards protect the Federal Bank’s Land

interests.

I believe the farm foreclosure moratori- provides adequate pro-

um under the Act

tection for the Federal Land Bank of Wich-

ita and Land Bank Associations its Federal Bank

inasmuch as Federal Land 611.1142(i) (j). § See also 12 C.F.R. Gen., by the court. After denial motion Turpén, Atty. Jean M. dered Michael C. trial, appeal brought. Gen., new LeBlanc, City, for Atty. Oklahoma Asst. appellee. for proposition, asserts As first at trial was insufficient to that the evidence McCoy, Gloyd Appellate Public L. Asst. evidence, support a When the conviction. Defender, Norman, appellant. light most as viewed favorable jury prosecution, is such that a reasonable OPINION find of all essential elements the could BUSSEY, Judge: doubt, beyond charged crime a reasonable Shepard, T. appellant, Booker was The grounds reverse on then this Court will not of Okmul- in the District Court convicted insufficiency of evidence. of Jackson CRF-84-24, of the gee County, Case No. 61 Virginia, v. (cat- Larceny of of Domestic Animals crime (1979); Spuehler L.Ed.2d 560 v. tle) of Two or After Former Conviction (Okl.Cr.1985). P.2d fifty to He sentenced More Felonies. was One the elements of the crime of of brings (50) imprisonment this years and taking Larceny of Domestic Animals is appeal. although Appellant animals. contends that by The the record reveal facts disclosed possession there was of sale and evidence 7, 1984, February Montgom- that on M.C. County, in Tulsa there was no evidence farmer, pasture ery, a his where he went to appellant from had taken the cows kept gate He the lock on the cattle. found Okmulgee County. It is well established broken, leading loading tire tracks proved be circum that a criminal chute, chute, five broken boards in the and stantially, reasonable inferences drawn and He missing. his contacted the of cows probative effect therefrom have same Okmulgee County Department. Sheriff’s testimony. as direct Collins investigate, By deputy arrived to (Okl.Cr.1977). Circumstantial at the Tulsa two his cows were found cattle in this case included stolen by Stockyards. They had been checked by stockyards appel and sold at the found appellant. Appellant certain that all mon lant. made proceeds of sale representing ey following day, The a warrant was issued by naming him himself as directly to sent appellant’s Okmulgee County for the Testimony slips. on the drive-in owner Tulsa, appellant’s residence arrest. At had been that the cattle offered show leading ground was observed on blood trailer, and that with a truck and taken back door. from trailer a trailer to used truck and appellant County Deputy Moody served the Tulsa stockyards. Appel deliver cattle appellant arrest warrant on front story truck and man about another lant’s other door and went inside because voices the owner of the cattle claimed to be who inside the house. Prior to had been heard uncorroborated, wholly and inconsistent entering, head in the he observed a cow’s impeached appellant’s testimony was and Through open door sink view. during A reasonable cross-examination. kitchen, quarters of four beef appellant had from this that jury could find hanging be from rafters could seen cattle, the verdict will be and taken garage. Receipts for cattle from Tulsa sufficiency evi for lack reversed stockyards laying on a table in the Virginia, supra; dence. Jackson the Tulsa Appellant kitchen. was taken to Spuehler supra. Okmulgee County jail, transported following day. County on the his con Appellant next asserts that grounds on be reversed Larceny of viction should Appellant guilty was found prosecutor. We (cattle) by the jury. improper He conduct Animals Domestic raised con objection note no felony first stipulated three convictions. alleged most of the punish- temporaneously with agree jury could not misconduct, error was therefore ment, any subsequently ren- and sentence was showing presence waived absent a fundamental made outside the of the jury. (Okl. error. Roberts v. They concerning did not show bias Cr.1977). Furthermore, in the one instance case, merely outcome of the reflect objection raised, in which an it was judge along that the move wanted to so hearsay properly sustained exclude evi jury all morning would not wait request dence. No was made to have the before the began. judge’s trial A honest admonished, jury motion for mis efforts to expedite permissible the trial are trial or other relief was made. This Court long they so operate as do not prejudice requiring of authority is unaware reversal rights. Gamble v. defendant’s judge properly where the trial sustains an by defendant, objection we do not re urges also reversible mis assignment. verse on conduct interrupted when de asserts that reversal fense counsel’s cross-examination of a required because the form the verdicts State, In Lott v. State witness. 586 P.2d sentencing stage ambiguous at the (Okl.Cr.1978), judge we held that a trial give option did the jury not to assess may interrupt questioning clarify testi punishment finding without former convic mony Here, or halt examination. improper assignment tions. The is without merit. nothing the court than clarify. did more First, long this Court has held that in cases Furthermore, there was no error as the bar, such one at as the where the defend questions way in no demonstrated the prior convictions, ant has admitted his judge’s opinion appellant’s guilt, on the question jury “there is no factual for the State, Banks v. (Okl.Cr.1978), 578 P.2d 370 guilty whether a pri defendant is and all error not of a fundamental nature mary charged offense or the offense after objection was waived no when was raised. State, v. former convictions. Jones Lott, supra. State, (Okl.Cr.1974).” Hanson v. P.2d 169 Reading of the instructions bailiff also does not amount to reversible Second, appellant upon relies the bald error where it was a matter within trial jury assertion that the didn’t understand judge’s management discretion points nothing the form. He in the trial, Collums, supra. judge The showing any record on part confusion present any answer rule on matter jury, of the nor give specific, does he rele- arise, might of law that and defense not authority vant on which reversal is re- only object, specifically failed to quired. assent This Court will not search for au- giving ed to that manner of thority support instructions. appellant’s assignments assignment This of error must fail. of error. Next, appellant Finally, objection no asserts that certain was raised as to evi- Therefore, form dence suppressed of the verdicts. should have been error trial. argument that His relies primarily perceived have existed has been on waived. State, v. (Okl.Cr. Williams improprieties Appellant 542 P.2d 554 the arrest. does 1975). grounds seek reversal on the of an unlawful arrest. As we find evi- Appellant next asserts that funda lawfully dence was admissible as obtained mental error occurred because the trial under exception view judge against appellant was biased and al requirement, search warrant we address lowed the bailiff to read the instructions to improprieties only of the arrest insofar jury. We first management note that necessary as it is to show the officer’s is a trial matter for the sound discre right place to be in the where items Collums v. judge. tion of the trial were seen. (Okl.Cr.1985). Appellant 695 P.2d 872 ar gues (Okl. bias In Tucker v. that was demonstrated when the Cr.1980), trial criticized defense counsel’s this Court in a ac unanimous deci tions. note that requirements We these criticisms were sion set for out the he excep asserts that should be view fall within seized grounds immediately given new on that he 1) trial They it must be are: tion. process by due ineffective evidence of denied assist that the items are apparent prevail argu crime; 2) ance of counsel. To on this officer must have had ment, 1) being place he that: where must show counsel’s justification for 2) legal deficient, right performance that defi and have items were seen there; 3) prejudiced discovery ciency of the evi the defense. Strickland to be Washington, must been inadvertent. v. dence (1984). To show defi question in this case were a cow’s 80 L.Ed.2d 674 items ciencies, beef, appellant relies head, exclusively and some quarters four points stockyards. object at various slips from the Tulsa counsel’s failure “drive-in” hearing. sentencing these items would the trial and While question There is object may crime of Lar rise to the level of to be evidence failure appear counsel, Aycox offi Animals when the ineffective assistance ceny of Domestic (Okl.Cr.1985), make an arrest 702 P.2d 1057 such the location to cers often not be conclusive. See charge. failure will (Okl.Cr. Roberts contesting By certain features Strickland, 1977). The set forth in test arrest, appellant seems to contend that great so supra, is whether the errors were legal right to be in the officer had no results of the trial unrelia as to render the he the items. place saw trial conduct hold that counsel’s ble. We Title 22 O.S. contention is without merit. argues in appellant so as was not deficient 1981, authority peace for provides § objections the that have his Most of brief. officer serve an arrest warrant which raised in the brief would been been in part to him the State. delivered overruled, and that should properly those in this The fact that the warrant would have amounted have been sustained Okmulgee County judge by an issued ruling had the most to harmless error County deputy did not served a Tulsa was more The evidence been incorrect. deputy the arrest unlawful. render the con sufficient at trial sustain than only right duty to serve had not the viction, notion that sentence and the doing in so it appellant, and the warrant on spec less is mere imposed would have been appellant’s proper him to for be ulation, light in the confessed especially residence. crime on numerous of the same convictions opin past. are of We occasions door, appellant When answered the therefore, reliable; ion that result deputy see a head in the could cow’s is denied. this contention sink from outside house. kitchen house, he deputy went into the When assign Appellant raises several open through saw door also the beef severity of his sen concerning the ments slips garage, and the “drive-in” which First, argues under O.S. he that tence. open the kitchen laying in the were 1981, 51(B), prior convictions used § table. same trans out of the enhancement “arose or series events or occurrence action go deputy did the In none of these acts location....” closely related place right his in a from beyond be In point is Bicker on this clear. The law view. the items seized were (Okl.Cr. going residence was purpose in His staff 1983), stated: this Court arrest, for cows. not to look to make an case, appellant would question In the instant items in Observation of the if the convictions benefit inadvertent, receive a proper and seizure was ... purely transaction.... out the same arose As there under the view doctrine. this benefit items, cannot receive seizing Defendants impropriety was no offering whether suppress court without properly trial refused closely related. prior convictions them evidence. presented home, appellant they As the no such evi- at his only had a valid arrest ..., assignment dence this of error is warrant and not a search warrant. merit. without When the officers arrived at Appellant similarly put in this case failed to home, one went to the front door and the tending relationship on evidence to show a other went around to the back. The officer Moreover, between the crimes. the convic- knocked, at the back door tions came from different counties and the stepped quickly outside and shut the door informations were filed at different times. saw, behind him. The officer testified he Bickerstaff, supra, door, Even if did not resolve through open a cow’s head in the issue, argument patently find the thought we sink and he people there were two not consider it. frivolous and will Collums the house. He entered the house with- P.2d 872 permission out or a warrant to search for them. The officers did not serve the arrest argues Appellant further they warrant until after were both inside judge mitigating the trial failed to consider Appellant the house. testified that the of- give circumstances or to credit for time rooms, ficers searched all four as well as served, length of the sentence is garage, attic, and the basement. such as should shock the conscience of this They cabinets, looked inside the kitchen Court, and sentence should there deep freeze, under the bed and between the disagree. general, fore be reduced. We In mattress. Officer Russell confirmed this imposed when the sentence is within the testimony in his when he they testified limits, statutory reviewing court should box, “places even looked into a tool big it. Floyd, disturb See United States v. enough for a man to be in.” cert, (10th Cir.1973), denied, 477 F.2d 217 38 L.Ed.2d 336. why raises two claims the evi- practice While it is common for the trial dence found inside his home should have give served, 1) credit for time suppressed: there been because the arrest authority mandating executed, such illegally 2) credit or warrant was be- making give it abuse of discretion to fail to cause the justify State failed to the war- years it. A sentence of 50 does not shock rantless search of his home. I find the the conscience of this Court the evi where arrest warrant and the service of it was clearly appellant’s guilt, find, however, dence showed the valid. I do not the search limits, prescribed lawful; sentence was within the and seizure was the evidence was appellant and had been convicted of the not plain admissible under the view doc- same offense past. several times the trine as majority opinion. claimed in the

Finally, appellant Although seeks reversal due to the arrest warrant was not accumulation of errors. As we have found appellant handed over to until the officers case, no errors house, committed there is appellant were inside the legal was require ly accumulation which could step home, rever arrested on the back of his State, (Okl.Cr. sal. Lott v. with the door shut behind him. This Court 1978). previously approved has of the definition of 2, arrest found 6A C.J.S. Arrest which § Accordingly, judgment the and sentence taking, seizing, detaining is: or the “[T]he is AFFIRMED. person by touching, by another either or any act which indicates an intention to take BRETT, P.J., PARKS, J., and custody him subject person into the specially concur. arrested to the actual control and will of BRETT, Presiding Judge, specially arrest, person making the the ...” Castel concurring: 361, (Okl.Cr lano v. 585 P.2d 364 .1978). problem majority that, with the opinion’s We have also ruled a “[w]hen disposal assignment person cooperates fifth voluntarily po with the leave, error is that the record indicates that at the lice and is free to there is no arrest. appellant the officers went to If arrest there is no manual seizure or resist-

603 Brown, 730, In Texas v. very 460 anee, parties U.S. 103 are the intentions 1535, (1983) an intent to 75 L.Ed.2d 502 the There must be S.Ct. United important. understanding Supreme an Court in depth, officer and States addressed arrest the scope is the plain that submission neces by the arrestee the basis view 705, sary.” Devooght recognized 722 P.2d The Court doctrine. well- (Okl.Cr.1986). objects weapons that such as 708 settled rule public place may found a or contraband subjected to actual was police by the without a warrant. be seized investigator will of Russell control and 739, However, at 1541. Id. at 103 S.Ct. they appellant were he informed that when presented when situation different house. Russell’s testi- going go to into the private premises “situated on property is mony appellant's home for that he went to is not access otherwise available for arresting him and in fact purpose Leasing Corp. officer.” G.M. seizing appellant is suffi- who arrested one States, 338, v. United 429 U.S. 97 not proof appellant that free cient (1977). L.Ed.2d The Court con- P.2d leave. Holbird v. Brown excep- view cludes ar- appellant Because independent “an tion therefore ex- home, investigator of his rested outside Clause, ception simply to the Warrant not free to conduct deputy and the an extension of whatever ... warrant search of the home unless search justification for an officer’s ‘access to an issued, exigent circumstance had been Brown, at object’ may be.” appellant had existed or consented at 1541 103 S.Ct. warrantless search. recognizes, principles majority opinion Applying As there these instant excep- view three elements to the we find the arrest are home; requirement: his to the warrant outside of tion was made time, subject to the actual con- he became immediately apparent a. it must be subjectively crime, of the officers he trol of a the items are evidence Devooght, he not free to leave. knew prior justifi- must have a b. the officer on, 708. From that moment presence a lawful cation prior justification needed officers some and, right to be there appellant’s home and seize to enter the c. must be discovery including evidence viewed outside inadvertent. must The officers the cow’s head. (Okl.Cr. Tucker v. exigent warrant or an had either a search 1980). opinion misstates majority them allow which would circumstance requiring prior justi requirement second as search without war- the house and enter being place where the fication for York, 573, Payton v. New 445 U.S. rant. opinion then con items were seen. The 1381, 589, 1371, L.Ed.2d 639 100 63 S.Ct. the house cludes that inside evidence State, v. see also Teeman (1980); 664 P.2d doc view admissible under 1071 piece of one trine because the observation exceptions to the warrant rule of the One of from the outside of evidence was viewed may be conducted where a search is that house, legally place a the officer where of or a state emer exigent circumstances right United States Su had to The be. v. Fisher 668 P.2d gency exists. preme explained Court that “[t]he 1152, (Okl.Cr.1983). “The relevant 1156 illegal of view doctrine seizure authorizes is is not whether it in that situation test police evidentiary or to a offi items visible warrant, but wheth obtain a reasonable to object has some cer whose access to Id. at 1156. search was reasonable.” er the prior justification and Fourth Amendment to an amount Two situations suspect that the probable who has cause the offi are where exigent circumstance activity.” is criminal item connected with protective sweep to 765, 103 Andreas, must conduct a Illinois v. S.Ct. cers 463 U.S. danger there 3319, (1983). and where prevent immediate L.Ed.2d possibility immediate trier is rational of fact could have found destroyed. suspicion dan beyond will be the essential elements of the crime “[T]he light in Virginia, a reasonable doubt. Jackson v. ger be clear and reasonable must surrounding Officers of all circumstances. 61 L.Ed.2d 560 given (1979); Spuehler reign are not free to conduct v. the law pretense that a sweep searches on the dan (Okl.Cr.1985). Our examination might gerous situation be imminent.” presented facts reveals State suffi- Tabor, (10th States v. United 722 F.2d support in jury’s cient evidence of the ver- Cir.1983). protective sweep “A is not a dict and the admission of this evidence was thorough quick search. merely It is merely prejudice cumulative and did not viewing persons to check cursory for other guilt on the in jury setting issue of or might present Unit security risk.” who punishment. Owens, 146, 151 (10th v. ed States 782 F.2d Cir.1986). testimony The in this re PARKS, Judge, specially concurring: looking the search veals that included be I Again, express my disagreement must mattresses, deep freeze tween position regarding with Court’s a de box; apparent scope in a tool it is even prior admission fendant’s convictions. protective sweep greatly of a exceeded Han my separate As I opinion stated officers in it this case if was ever son v. (Okla.Crim. 716 P.2d legitimate the inception. at No one was App.1986), the decision of whether find found the search. appellant guilty of former convictions contraband removal or destruction province jury. within How grounded exception necessity. ever, compelled I am in the result concur specific nature situation must be reached as matter of stare decisis. Id. such that it is not for law feasible officers required to take a search secure urges also that he was entitled State, 575 P.2d warrant. Blackburn v. prior for the to credit time he served (Okl.Cr.1978). The State has the burden of Clearly, the practice trial. better is to cred- showing that the circumstances of the situ- it sentence with the time served excep- fell within specific ation one of the trial, although the trial is not Id., requirement. tions of warrant to do so. See required Hammons Blackburn, 642. In held the Court that no 463, 465 (Okla.Crim.App.1986). exigent circumstances existed which would permit search, the warrantless where the

property was not in “process of de- Id., likely nor destroyed.”

struction to be

at 643. analysis

An of the facts has law exigent

led me conclude that circum- existed at the stances time of the search of PHILLIPS, Reginald Appellant, L. appellant’s home. Items in this discovered head, quarters included a search cow’s four Oklahoma, Appellee. STATE beef, stockyard delivery and a receipt. consequence As a of this search unlawful No. F-86-514. seizure, all evidence from in- obtained Appeals Court of Criminal of Oklahoma. garage side house and trial, inadmissible and it was error for May 1988. the trial court to have admitted same. Rehearing Denied June Having found that this evidence should suppressed, inquiry been our last whether, viewing after

light most prosecution, favorable to the

Case Details

Case Name: Shepard v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: May 12, 1988

Citation: 756 P.2d 597

Docket Number: F-85-116

Court Abbreviation: Okla. Crim. App.