Lung v. State

• Decision Date: 09 November 1966
• Docket Number: No. A--13894,A--13894
• Citation: 420 P.2d 158
• Parties: Victor Lowell LUNG, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 158

420 P.2d 158

Victor Lowell LUNG, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--13894.

Court of Criminal Appeals of Oklahoma.

Nov. 9, 1966.

Syllabus by the Court

1. It is the duty of counsel to raise at proper time, and in proper manner, all objections to the proceedings and save proper exceptions. When this is not done, they are treated as waived, and there are few exceptions to this rule.

2. Ordinarily, a party may not complain of an error which he himself has invited, or which he has waived either expressly or impliedly. This rule clearly applies to a case where one party resorts to incompetent evidence without objections, and where the opposite party relies with evidence of the same character. In such case, both are at fault and neither can complain in this Court of the admission or exclusion of the evidence by the court below.

3. An individual held for interrogation must be clearly informed that he has a right to consult with a lawyer and to have the lawyer with him during the interrogation. Along with the warning of the right to remain silent and that anything stated can be used in evidence against him, and this is an absolute prerequisite to interrogation.

4. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make.

5. Volunteered statements of any kind are not barred by the Fifth Amendment, nor their admissibility affected.

6. Any statement or confession obtained without coercion, including the unsolicited, spontaneous confession, given in the absence of the requirements of the accusatory stage, may be admitted into evidence.

Appeal from the District Court of Cleveland County; Elvin J. Brown, Judge.

Victor Lowell Lung was convicted of the crime of Unauthorized Use of a Motor Vehicle, and appeals under the Post-Conviction Appeal statute. Affirmed.

Luttrell, Luttrell & Pendarvis, Norman, for plaintiff in error.

Charles Nesbitt, Atty. Gen., Jeff Hartman, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

Victor Lowell Lung, hereinafter referred to as defendant, was charged by information in the District Court of Cleveland County with the crime of Unauthorized Use of a Motor Vehicle. He was tried before a jury, found guilty, and sentenced to Three Years in the penitentiary. The defendant appealed to this court out of time, but was allowed to file under the Post-Conviction Appeal statute. He alleges two assignments of error.

The record reveals, in substance, that John Fogle lived in Norman, Oklahoma, and returned to his residence from work at approximately 8:30 p.m. on July 30, 1965. He parked his car in front of his home, went in, and after dressing went outside to find his car missing. He reported this to the police. He testified he had given no one permission to use said car, including the defendant. Later that evening, at approximately 11:30, the defendant walked into the police station in Oklahoma City and approached an officer on duty and said, 'I have stolen a car'. He further stated the car was parked next to the police station. The car was observed and found to be the same vehicle taken from Mr. Fogle's home.

The defendant was then interrogated relative to the incident by two Oklahoma City police officers.

Though defendant was charged with the crime of 'Unauthorized Use of A Motor Vehicle'; during the course of the trial, the prosecuting attorney referred to the car as 'stolen'. Also, several state witnesses referred to the car as 'stolen'. At one point the county attorney was admonished by the trial judge as follows:

'BY THE COURT: I don't recall there being in evidence a stolen vehicle would counsel approach the bench, maybe you can refresh my recollection. Ladies and gentlemen of the jury, you are admonished that this is not a car theft case, as such. This is not a Larceny of an Automobile case, and when counsel uses the word stolen, it's inadvertence on his part and he won't do that any more. You may proceed.' (Emphasis supplied)

However, the term 'stolen' was used several times thereafter in making reference to the car in question.

Defendant now contends that the continued use of the word 'stolen' throughout the trial was prejudicial to him, and constitutes reversible error.

It is to be observed that not a single objection was offered by defense counsel to the usage of the word 'stolen'. This Court has consistently held that in order to preserve a question of law, the attorney must present objections and give the trial court an opportunity to pass upon the admissibility of evidence. In Hampton v. State, Okl.Cr., 407 P.2d 210, this Court said in the first syllabus:

'It is the duty of counsel to raise, at proper time and in proper manner, all objections to the proceedings and save proper exceptions. When this is not done, they are treated as waived, and there are few exceptions to this rule.'

This precludes attorney's from 'laying behind the log', and raising a question for the first time in this Court without first bringing it to the attention of the trial judge.

The record reflects that the term 'stolen' was likewise used by the defendant. An examination of his testimony reveals that he testified as follows:

'Q. Did you go to the Police Station?

A. Yes, sir, I did.

Q. And, did you turn the car in?

A. Yes sir, I did.

Q. And, did you talk then with the officers?

A. Yes sir, I did.

Q. What did you tell them?

A. Well, I told them that I had Stolen the car.

Q. Had you in truth and fact, Stolen the car? (Emp. ours)

A. No sir, I had not.

Q. Why did you turn yourself in and tell them?

A. Well, I wanted to get back out to the hospital out here.

Q. What hospital are you talking about?

A. The Central State Hospital.'

This Court stated in Williams v. State, Okl.Cr., 373 P.2d 85:

'The rule is well settled that, ordinarily, a party may not complain of an error which he himself has invited, or which he has waived, either expressly or impliedly. This rule clearly applies to a case where one party resorts to incompetent evidence without objections, and where the opposite party relies with evidence of the same character. In such case, both are at fault and neither can complain in this court of the admission or exclusion of the evidence by the court below.'

Since there were no objections to the term 'stolen' made, and no exceptions taken; and since the term was used freely by both the state and defendant, and since the trial court admonished the jury as to the usage of said term; it is the opinion of this Court that error was not committed.

The defendant next contends his constitutional rights were violated by the admission of the statement given to the Oklahoma City Policemen, over the objection of defense counsel.

Defendant's contention is that he was interrogated by said police, without being advised of his constitutional rights as set forth by recent decisions of the Supreme Court of the United States in the cases of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; also, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 726. These and other cases considered recently by the United States Supreme Court established rules to govern the admissibility of confessions. The nature of the rule, was in substance:

'Accordingly, we hold that an individual held for interrogation must be clearly informed that he has a right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warning of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.'

In the instant case, the evidence does not bring it within the scope of this rule. Defendant herein walked into the police station of Oklahoma City and volunteered the statement that he had stolen a car. Two officers were called to investigate his statement. He voluntarily took them outside and showed them where the car was parked. The officers called the Norman Police...