Lee v. State, F-80-34

Decision Date23 November 1981
Docket NumberNo. F-80-34,F-80-34
Citation637 P.2d 879
PartiesDale Roschille LEE, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BUSSEY, Judge:

The appellant, Dale Roschille Lee, was convicted in the District Court of Oklahoma County, Case No. CRF-79-670, of the crime of Murder in the First Degree, in violation of 21 O.S.Supp.1980, § 701.7. The jury assessed his punishment at life imprisonment, and from this judgment and sentence, a timely appeal to this Court has been filed.

In the early morning hours of February 20, 1979, the appellant and a friend, John Bolton, went to the house of Elvis Hodges, a bootlegger. After a short conversation on Hodges' porch, Hodges allowed them to enter the house where, according to the appellant, Hodges went into the bedroom to get a bottle of whiskey for Bolton. Through the open bedroom door, the appellant could see another man, Eugene Pierce, sitting on the bed.

As Hodges returned to the front room, he said "I thought so," grabbed Bolton, jerked him into the room and shut the door. In a few minutes, the appellant heard Bolton yell, "Help me, Dale. A man has hit me in the head with a hatchet and they are trying to kill me." The appellant asserts that at this point, and not before, he pulled out a gun given to him earlier by Bolton, snapped the gun twice with no explosion, went to the partially opened bedroom door, saw Bolton's bloody head, pointed the gun through the door, and told the man to hold it. The gun fired, killing Hodges. The defendant insists that someone fell against his arm, causing the gun to go off.

After Hodges was shot, Bolton and the appellant quickly searched the room, ostensibly for weapons which Pierce could use against them, then fled the house with a case of whiskey and a money sack containing seven dollars ($7.00). Police officers arrested the appellant the following evening, took him into custody and interrogated him for two (2) hours. The interrogation resulted in a signed confession in which the appellant admitted that he went to Hodges' house intending to rob him.

In his first assignment of error, the appellant contends that the trial court erred in denying the appellant's motion to quash the jury panel, alleging that the prosecutor used his peremptory challenges to systematically exclude blacks from the jury.

The prosecutor used three (3) of his five (5) peremptory challenges to exclude from the jury the only three (3) blacks who were called for duty. When the appellant moved to quash the panel, charging systematic exclusion of blacks and denial of due process and equal protection, the prosecuting attorney explained his reasons for the challenges, and the judge denied the motion to quash, strictly preserving the right of the State to exercise peremptory challenges without having to justify the exclusions.

Case law and statutory authority support the trial judge's decision. Traditionally, the motives for peremptory challenges of both the defense and the prosecution are immune from scrutiny, and purposeful discrimination cannot be assumed. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); 22 O.S.1971, § 654. In Swain, the U. S. Supreme Court, reviewing a case in which the appellant alleged a systematic exclusion of blacks, held that "(T)he presumption ... must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury .... The presumption is not overcome ... by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes." See also, Bennett v. State, 448 P.2d 253 (Okl.Cr.1968).

Although not insurmountable, the appellant's burden of proof in overcoming this presumption is substantial. Cases in this and other jurisdictions suggest that reversal is possible where an appellant shows proof of a studied systematic effort to exclude blacks. Carr v. State, 514 P.2d 413 (Okl.Cr.1973); Moore v. State, 461 P.2d 1017 (Okl.Cr.1969); Bennett v. State, supra; Dixon v. State, 89 Okl.Cr. 205, 206 P.2d 231 (1949). The U. S. Supreme Court did, in fact, reverse a conviction from this jurisdiction after the appellant showed that Negroes for a long period of time had been excluded from jury service in Okmulgee County, solely on account of their race. Hollins v. State of Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed. 1500 (1935). But other challenges, buttressed by equivocal statistics of the racial composition of juries over an extended period of time, have met with no success. United States v. Nelson, 529 F.2d 40 (8th Cir. 1976); United States v. Carter, 528 F.2d 844 (8th Cir. 1975); Swain v. Alabama, supra.

In the present case, the appellant's only evidence supporting his allegation of purposeful discrimination is the fact that the trial judge disagreed with the prosecutor's assessment of two (2) of the three (3) blacks. This disagreement alone is not enough to undermine the presumption in favor of the challenger. Where the appellant presents little more than an allegation unaccompanied by proof of systematic and intentional exclusion of blacks from the jury, the trial court does not err in denying a motion to quash the jury panel for such a cause. Hollins v. State, supra, see also, Holloway v. State, 550 P.2d 1352 (Okl.Cr.1976). To rule otherwise would significantly undermine the purpose of the peremptory challenge, which is to give to each side of a controversy a limited opportunity to exclude jurors who, because of bias, prejudice, or some other less definable trait, are not likely, in the litigant's opinion, to adjudge the proceeding fairly. See, 47 Am.Jur.2d, Jury, § 233 (1969).

The appellant next claims that the police lacked probable cause for his arrest, thereby making it error for the trial court to admit the appellant's confession. According to the appellant, his arrest was based only on information given to the police by John Bolton, the accomplice, and Anthony Quinn, to whose home the appellant and Bolton fled after the homicide; the appellant contends that neither Quinn nor Bolton were shown to be reliable sources of information, and that the arresting officer had neither a description or a full name of the suspect "Dale." Applying the test for a valid warrantless 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 warrant a prudent person in believing that the arrestee had committed an offense, and, therefore, that as fruit of the poisonuous tree, the confession should not have been admitted at trial.

The appellant has applied the appropriate test for the validity of a warrantless arrest, but, after a thorough examination of the record, we believe that the officer did have sufficient trustworthy information to warrant the arrest. The arresting officer had been advised by radiogram that the suspect "Dale," a black male, would possibly be wearing light-colored tennis shoes, a light print-colored shirt, a light blue quilted tie, and a light-weight jacket. Officers had obtained parts of this description from Eugene Pierce (an eyewitness) and John and Mary McNac (neighbors who viewed part of the incident from their home). Because Bolton and the appellant fled to Anthony Quinn's home immediately after the homicide, officers were able to glean additional information from Quinn, who described Bolton's head wound, the appellant's gun, the appellant's statements implicating him in the homicide, and the bar (The Boots and Saddles Club) where the appellant was expected to be at a certain time. Quinn's information led to Bolton's arrest, and Bolton was thereafter taken to the Boots and Saddles Club where he positively identified the appellant as his accomplice.

As this Court has stated many times, the grounds for the arrest need not be absolute or irrefutable. Reynolds v. State, 575 P.2d 628 (Okl.Cr.1978); Stidham v. State, 507 P.2d 1312 (Okl.Cr.1973); Welch v. State, 30 Okl.Cr. 330, 236 P. 68 (1925). A warrantless arrest is not unlawful if the arresting officer, from his own knowledge or from facts communicated to him by others, has reasonable grounds to believe that the person arrested has committed a felony. Tittle v. State, 539 P.2d 422 (Okl.Cr.1975); Darks v. State, 273 P.2d 880 (Okl.Cr.1954). Under the circumstances presented in this case, the arresting officer did have reasonable grounds to arrest the appellant, and the trial court correctly refused to exclude the resulting confession from the trial.

In his third assignment of error, the appellant contends that his will was overborne by police officers during interrogation. He presents his age (twenty-three), his inability to read, his lack of counsel, and his state of mind as factors giving rise to a vulnerability which the interrogators exploited, extracting from the appellant a confession containing a critical error in regard to his intent at the time of the homicide. Thus, he submits that the trial court committed prejudicial error in admitting the confession into evidence.

The issue to be reviewed on appeal is not the accuracy or truthfulness of the confession but voluntariness. See, United States v. LaVallee, 282 F.Supp. 718 (D.C.N.Y.1968). The appropriate approach to the issue of voluntariness, as stated in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), is...

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