Pickens v. State

• Decision Date: 24 January 2001
• Docket Number: No. F98-693.,F98-693.
• Citation: 2001 OK CR 3,19 P.3d 866
• Parties: Darrin Lynn PICKENS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

19 P.3d 866

2001 OK CR 3

Darrin Lynn PICKENS, Appellant, v. STATE of Oklahoma, Appellee.

No. F98-693.

Court of Criminal Appeals of Oklahoma.

January 24, 2001.

Joe Robertson, Robert Stubblefield, Capital Trial Division, Indigent Defense System, Norman, OK, Attorneys For Defendant at trial.

Don I. Nelson, Assistant District Attorney, Creek County Courthouse, Sapulpa, OK, Attorney for the State at trial.

William H. Luker, Capital Direct Appeals, Indigent Defense System, Norman, OK, Attorney for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

JOHNSON, Judge:

¶ 1 Darrin Lynn Pickens was tried by jury in Creek County District Court, Case No. CF 90-66, before the Honorable Donald Thompson, District Judge, and convicted of Murder in the First Degree while in the commission of Robbery with a Dangerous Weapon, in violation of 21 O.S.Supp.1989, § 701.7 (Count 1) and Feloniously Carrying a Firearm, in violation of 21 O.S.Supp.1989, § 1283 (Count 2). The jury found the existence of three aggravating circumstances and set punishment at death on the murder conviction and at ten years imprisonment on Count 2.¹ The trial court sentenced accordingly. From the Judgment and Sentences imposed, Appellant perfected this appeal.² Appellant raises fifteen propositions of error.³ ¶ 2 In the early morning of February 4, 1990, Pickens robbed the Mr. Quick 21 convenience store in Sapulpa. He shot the store clerk, Tommy Lee Hayes, four times. A customer found Hayes' body between 2:00 and 3:00 a.m. Hayes died from two of the gunshot wounds to the chest and abdomen. Three .38 caliber unjacketed lead bullets were found at the scene, and two more were recovered from Hayes' body. The store manager determined $180.33 was missing, and the last sale shown on the cash register occurred at 2:06 a.m.

¶ 3 Pickens was arrested in Tulsa on February 9, 1990 on unrelated charges.⁴ Tulsa police officers found a .38 caliber F.I.E. Titan Tiger Six Shot revolver in his car. At the time of his arrest, Pickens asked officers if he was being arrested for the Creek County crimes. Ballistics tests connected the revolver found in Appellant's car to the Tulsa crimes but did not positively identify it as the weapon used in the Sapulpa robbery/murder. However, on March 9, 1990, Pickens confessed to the crimes when he was interviewed on the Sapulpa charges.

¶ 4 In Proposition I, Pickens claims his confession to the robbery and homicide was improperly admitted into evidence because it was the fruit of an illegal arrest based upon a lack of probable cause for issuance of the arrest warrant. Pickens moved to suppress all evidence obtained as a result of his arrest, alleging the averments in the arrest warrant contained misleading and incorrect information about the ballistics tests which were either intentionally false or involved omissions made in reckless disregard for the truth. The motion was overruled at preliminary hearing. (O.R. 495-496, 504) An evidentiary hearing was held on Pickens' post-arraignment motion to suppress and was overruled prior to trial.⁵ (O.R.651)

¶ 5 Where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by an affiant in a warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).

In the event that at the hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id.; see also Gregg v. State, 1992 OK CR 82, ¶ 19, 844 P.2d 867, 875

.

¶ 6 Deputy Sheriff George Elliott's affidavit for the arrest of Darrin Lynn Pickens details the circumstances of the crime scene and includes the statement that the weapon used in the robbery/shooting was believed to be either a "38 or 357 caliber" weapon. It states information was received from Tulsa County that Pickens was arrested with a .38 caliber weapon following two similar armed robberies in the Tulsa area involving convenience store clerks. According to the affidavit, Tulsa County notified Creek County "because it appeared to be the same kind of weapon and incident that occurred in Creek County." The affidavit states Pickens was previously convicted of robbing a convenience store in the same location; in addition, and relevant to the issue raised, Deputy Elliott stated in the affidavit that the projectiles recovered from the Creek County shooting scene were sent to Tulsa for comparison with the projectiles recovered from the Tulsa robbery/shootings. He said

it was determined the riflings on the recovered projectiles were the same and some similarities noted from all projectiles fired from the suspect's gun. These are the same results as were determined from the projectiles recovered from both crime scenes and both victims shot in Tulsa which Darrin Pickens confessed to committing.⁶

¶ 7 At the evidentiary hearing on the motion to suppress, Deputy Elliott stated he knew at the time he prepared the affidavit that Appellant had been positively connected to two similar robbery/shootings at convenience stores in Tulsa through a positive ballistics match of the projectiles found at those crime scenes with the gun found in Appellant's car. For that reason, he sent the projectiles recovered from the Mr. Quick 21 store in Sapulpa to Tulsa County for comparison with the projectiles and gun recovered in Tulsa and related to the Tulsa homicide/robberies. Based upon those comparisons, he stated in his affidavit

the riflings on the recovered projectiles were the same and some similarities noted from all projectiles fired from the suspects (sic) gun. These are the same results as were determined (sic) from the projectiles recovered from both crime scenes and both victims shot in Tulsa which Darrin Pickens confessed to committing.

He knew at the time he prepared the affidavit that the ballistics comparison of the projectiles from one of the Tulsa cases was a positive match to the gun found in Appellant's car. At the evidentiary hearing, he admitted he knew the projectiles recovered from the Sapulpa crime scene would be difficult to exactly match because they were mashed and mangled and were not jacketed bullets and, accordingly, said "similarities" rather than "exact weapon" and "exact bullet."

¶ 8 We have reviewed Elliott's testimony and the affidavit and find Appellant has not established by a preponderance of the evidence that Elliott's statements were made in reckless disregard of the truth or with an intent to mislead. In the affidavit, Elliott did not say the similarities were that the projectiles all had six lands, six grooves and a right hand twist; nor did he say that the results showed an exact match. At most, any ambiguity in Elliott's statements concerning the similarities noted on the projectiles arose from his own unfamiliarity with ballistics testing in general and not from an intent to willfully deceive or out of reckless disregard for the truth.

¶ 9 However, even if this Court were to find Elliott's averments regarding the ballistics test were falsehoods or were made with reckless disregard for the truth, this would not render the arrest warrant void, if probable cause for the warrant was otherwise provided by the affidavit. Skelly v. State, 1994 OK CR 55, ¶ 22, 880 P.2d 401, 406; see also Franks, 438 U.S. at 158,

98 S.Ct. at 2677. In addition, if we were to find Elliott omitted material information-the specific statement that the tests revealed similarities but were not an exact match-we would still determine whether probable cause existed for the issuance of the arrest warrant "by examining the affidavit as if the omitted information had been included and inquiring if the affidavit would still have given rise to probable cause for the warrant." Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir.1996),

citing Stewart v. Donges, 915 F.2d 572, 582, n. 13 (10th Cir.1990). In either of these situations, we believe the magistrate was presented with facts sufficient to justify issuance of the warrant for Pickens' arrest.

¶ 10 "The existence of probable cause is a common sense standard requiring facts sufficient to warrant a man of reasonable caution in the belief that an offense has or is being committed." Mollett v. State, 1997 OK CR 28, ¶ 14, 939 P.2d 1, 7, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998), citing United States v. Wicks, 995 F.2d 964, 972 (10th Cir.1993)

. Here, Elliott's averments setting forth the similarities of the offenses committed by Pickens in Tulsa County within a matter of days from the Sapulpa homicide/robbery, the use of the same caliber weapon in those robberies/shootings, and that Pickens robbed a convenience store in the exact same location years earlier were sufficient to establish probable cause for Pickens' arrest. Even if Elliott had stated the results of the ballistics tests did not reveal a positive match to the exclusion of all other .38 caliber weapons, we believe such information would not have vitiated probable cause.

¶ 11 On review, this Court will determine whether the magistrate had a substantial basis for concluding probable cause existed to believe the defendant committed the crime, looking at the totality of the circumstances contained in the affidavit supporting the warrant. Hooper v. State, 1997 OK CR 64, ¶ 7, 947 P.2d 1090, 1097, cert....