Nunley v. State, F-80-508

• Citation: 660 P.2d 1052
• Decision Date: 21 March 1983
• Docket Number: No. F-80-508,F-80-508
• Parties: Paul Handy NUNLEY, Appellant, v. The STATE of Oklahoma.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1052

660 P.2d 1052

Paul Handy NUNLEY, Appellant, v. The STATE of Oklahoma.

No. F-80-508.

Court of Criminal Appeals of Oklahoma.

March 21, 1983.

An appeal from the District Court, Oklahoma County; Jack R. Parr, District Judge.

Paul Handy Nunley, appellant, was convicted of Murder in the Second Degree, in Oklahoma County District Court, Case No. CRF-79-2282, and was sentenced to life imprisonment, and he appeals.

AFFIRMED.

Jack D. Fisher, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Paul Handy Nunley was tried for the crime of Murder in the First Degree, in violation of 21 O.S.1981, § 701.7, in Case No. CRF-79-2282, in the District Court of Oklahoma County before the Honorable Jack R. Parr. The appellant was represented by counsel. The jury returned a verdict of guilty of Murder in the Second Degree, and set punishment at life imprisonment. The trial court sentenced the appellant in accordance with the verdict. From this judgment and sentence, the appellant has appealed to this Court.

On June 10, 1979, Mrs. Mauldin and her three children left their home at approximately 9:00 p.m. to visit a neighbor. The decedent, husband of Mrs. Mauldin, remained home playing solitaire in the kitchen. On the way to the neighbor's home, one of Mrs. Mauldin's children noticed a car in front of their house. At trial, the daughter identified the appellant as the man she saw in the car. At approximately 9:30 p.m., Mrs. Mauldin and her children returned home. The decedent's body was discovered on the kitchen floor in a prone position; the house had been ransacked. The coroner's report revealed that the cause of Mr. Mauldin's death was manual strangulation.

The following day, Oklahoma City Police Officers' Koonce and Harrison interviewed neighbors of the deceased, where it was learned that Mrs. Mauldin was having an affair with a neighbor, Lee McIntre. On June 12, 1979, Mrs. Mauldin went to the police station pursuant to a request by Officer Koonce and confessed to her part in the scheme to kill her husband. She also implicated her paramour, Lee McIntre and a black man. Mrs. Mauldin was able to give a description of the black man and the car that he drove, but she did not know his name.

Mrs. Mauldin told the police that she had wanted to kill her husband for a long time, and in fact, had tried to kill him twice. When those attempts failed, she contacted Mr. McIntre about finding someone to kill her husband for money. Mr. McIntre told the police in an unsigned confession that he contacted the appellant about the contract, and he gave the appellant Mrs. Mauldin's phone number.

In Mrs. Mauldin's confession, she stated that someone called her about the contract killing shortly before the homicide. She met with the caller, and they agreed that on Sunday, June 10, 1979, between 9:00 p.m. and 9:30 p.m., Mrs. Mauldin and her children would be gone from the house, so the caller could kill her husband. Two days after Mrs. Mauldin's confession, the appellant was arrested.

On appeal the appellant asserts several propositions of error concerning the warrantless search of the house where he was staying and the seizure of an address book which was used against him at trial. We have reviewed each of these assertions and have found no errors.

Officer Koonce testified that Zephyr Roblow gave her consent to search the house where the address book containing Deloris Mauldin's name and number was discovered. The testimony indicated that Ms. Roblow apparently paid the bills for the house and the appellant jointly occupied the house with her "off and on." The appellant was staying at the house at the time of the warrantless search and claims on appeal that the search was unreasonable and the officer's testimony regarding Ms. Roblow's consent was hearsay.

Initially, we will deal with the hearsay issue. It is the appellant's position that both the testimony that Ms. Roblow gave consent to search and the search waiver form constitute hearsay. The trial judge overruled the appellant's objection at trial and we agree with his decision.

The hearsay rule is only applicable when an out of court statement is offered to prove the truth of the matter asserted. When a statement is relevant simply because it was made, it is not hearsay and not excludable from testimony. In the case at bar, the officer merely testified to what he heard and observed when Ms. Roblow gave consent and signed the form. Both gave him authority to conduct a search. He was not seeking to prove the truth of her statements, and thus, his testimony was not hearsay.

Although the rule is that warrantless searches are per se unreasonable, an exception to that rule is when the search is preceded by free and voluntary consent. See Burkham v. State, 538 P.2d 1121 (Okl.Cr.1975). When two persons, in this case Ms. Roblow and the appellant, possess common authority over or other sufficient relationship to the premises or effects sought to be inspected, either of them is capable of consenting to the search. Smith v. State, 604 P.2d 139 (Okl.Cr.1979). Because Ms. Roblow consented, the warrantless search was not unreasonable. Also, we find no merit to the State's argument that the appellant had no standing to assert a fourth amendment violation. The evidence revealed that the appellant had a legitimate expectation of privacy in the area searched. See U.S. v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

The appellant urges the seizure of the address book was unlawful. We disagree. Once the officer was given Ms. Roblow's consent, he had a right to be in the bedroom where the address book was discovered in plain view. In Abbott v. State, 565 P.2d 691 (Okl.Cr.1977), this Court determined that the plain view rule applies when: (1) the initial intrusion which afforded the plain view was lawful; (2) the discovery of the evidence was inadvertent; and, (3) the incriminating nature of the object was immediately apparent. All these requirements were met in the case at bar. First, the intrusion was lawful and the officers were acting pursuant to a consent to search form. The second requirement, an inadvertent discovery, is also satisfied. The record indicates that the officers had no prior knowledge of the existence or location of the address book. The third requirement is supported by the evidence in that the record reveals that the officer was looking for a nexus...