Babek v. State

Decision Date21 December 1978
Docket NumberNo. F-77-874,F-77-874
PartiesRaymond John BABEK, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

CORNISH, Judge:

Raymond John Babek appeals his conviction of the offense of Forgery in the Second Degree, After Former Conviction of a Felony, and his sentence by an Oklahoma County jury of twelve (12) years' imprisonment in Case No. CRF-77-1185. We are of the opinion the sentence should be modified.

The pivotal issue on appeal concerns the voluntariness of a confession following a warrantless arrest. Defendant asserts the trial court erred in admitting into evidence the confession given within 24 hours after being taken into custody. He further argues the confession followed an unconstitutional arrest and was thus inadmissible as "fruit of the poisonous tree," Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), since the arresting officers had no probable cause to make an arrest.

At trial, an in camera hearing was conducted to determine the admissibility of defendant's confession. The facts presented show that on the morning of March 28 1977, Wanda Nicholson heard noises outside her Oklahoma City apartment and, upon looking out the bedroom window, saw a tow truck and three men, one of whom was the defendant, standing around her husband's 1969 Chevelle Super Sport automobile. When it appeared the men were going to remove the car from the parking lot, she was told by the defendant that the car was his and that he had sold it to one of the other men.

Mrs. Nicholson did not believe the defendant and threatened to call the police. She then observed the tow truck driver return the car title to the defendant, receive cash in return, and say to contact him when he got things straightened out. The two men then departed, leaving the defendant alone in the parking lot. Defendant then asked Mrs. Nicholson to wait before calling the police, as he wanted to talk to her. The defendant proceeded to her upstairs apartment, where he left the title in the front room. Mrs. Nicholson asked defendant where he lived. He said he resided in Apartment No. 21C and then left.

The car title was signed on the back with the forged signature of Mrs. Nicholson's husband, Gregory Nicholson, who later testified at trial the handwriting was not his, nor had he authorized anyone to sell his automobile.

When the police were notified by Mrs. Nicholson of the events which had transpired, the officers proceeded to defendant's apartment. After reading the Miranda warnings, the defendant was arrested for attempted larceny of an automobile.

Larry Gramling, Detective with the Oklahoma City Police Department, who investigated the alleged forgery of the car title belonging to Gregory Nicholson, stated he talked with the defendant in the City jail on March 29, 1977, after advising him of his rights, which defendant acknowledged he understood. When questioned regarding the title, defendant told Officer Gramling he had signed the title on the back, which he obtained from an unidentified white male he described as being in his late 20's, approximately 5'10 , and with dark hair. Officer Burrow also talked with the defendant while he was incarcerated and asked the defendant for a handwriting sample. Apparently referring to the car title, defendant replied, "That won't be necessary, I signed it."

In this appeal we must first determine the propriety of the warrantless arrest in the case at bar. This Court has recognized in State v. McLemore, Okl.Cr., 561 P.2d 1367 (1977), quoting from Greene v. State, Okl.Cr.,508 P.2d 1095 (1973), the following test to determine the existence of probable cause for a warrantless arrest:

" 'The test is "whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information was sufficient to warrant a prudent man in believing that the petitioner (arrestee) had committed or was committing an offense. " Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). . . .' " (Citations omitted, footnote omitted)

In determining whether there was probable cause in the instant case to arrest the defendant without a warrant, we think the State's case is buttressed by the language of this Court in Jones v. State, Okl.Cr., 555 P.2d 63 (1976), where we said when a police officer arrests an individual without a warrant he is not bound to show in his justification a felony actually committed to render such arrest lawful, but if the officer suspects on his own knowledge of the facts, or upon facts communicated to him by third parties, and has reasonable ground to believe the individual has been guilty of a felony, the arrest is not unlawful. See also Booze v. State, Okl.Cr., 390 P.2d 261 (1964); Darks v. State, Okl.Cr., 273 P.2d 880 (1954).

The facts in this case reveal the arresting officers, after receiving the call from Mrs. Nicholson, and being aware of the apparent plan to remove Mr. Nicholson's automobile from the parking lot of the apartment complex, were justified in believing some crime was intended. Therefore basing our decision on the totality of the circumstances, we cannot say the arresting officers did not have reasonable grounds to believe a felony had been committed. Furthermore, Mrs. Nicholson gave the officers a physical description of the defendant and said he told her he was living in Apartment 21C. It follows then at the time the arresting officers found the defendant at that location, they had reasonable grounds to believe the defendant had been the perpetrator, and properly placed him under arrest.

The fact that defendant was not tried on the charge of larceny of an automobile, for which he was arrested, is irrelevant since it is well established that the public prosecutor has the discretion to select the offense for which an accused will be charged. See Jenkins v. State, Okl.Cr., 508 P.2d 660 (1973). This is reviewed at the preliminary hearing and if the requisite probable cause is found the accused is bound over for trial. The case at bar presents no variance in this procedure, and we find no...

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10 cases
  • Cooks v. State, F-83-198
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 26 Abril 1985
    ...as to dissipate the taint. We therefore find the confessions purged of the taint of illegality, and thus admissible. Babek v. State, 587 P.2d 1375 (Okl.Cr.1978); J.D. v. State, 558 P.2d 402 Next, appellant alleges that evidence obtained from the search of the vehicle was the product of a pu......
  • Maxville v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 9 Junio 1981
    ...arguments in the past and we will continue to condemn them in the future. See Green v. State, 611 P.2d 262 (Okl.Cr.1980); Babek v. State, 587 P.2d 1375 (Okl.Cr.1978); Cooper v. State, 584 P.2d 234 (Okl.Cr.1978); Robinson v. State, 574 P.2d 1069 (Okl.Cr.1978). See also ABA Standards for Crim......
  • Lee v. State, F-80-34
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 23 Noviembre 1981
    ...arrest as expressed in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), and quoted with approval in Babek v. State, 587 P.2d 1375 (Okl.Cr.1978), the appellant insists that at the moment of arrest, the officer did not have reasonably trustworthy information sufficient to warra......
  • Hardin v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 10 Agosto 1982
    ...what charges will be filed against an accused lies in the discretion of the prosecutor, not the interrogating officers. Babek v. State, 587 P.2d 1375 (Okl.Cr.1978); Jenkins v. State, 508 P.2d 660 (Okl.Cr.1973). The police are not required to advise an accused of the specific charges to be f......
  • Request a trial to view additional results

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