Fowler v. State

• Decision Date: 30 August 1989
• Docket Number: No. F-86-510,F-86-510
• Citation: 1989 OK CR 52,779 P.2d 580
• Parties: Mark Andrew FOWLER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 580

779 P.2d 580

Mark Andrew FOWLER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-510.

Court of Criminal Appeals of Oklahoma.

Aug. 30, 1989.

Rehearing Denied Oct. 2, 1989.

An Appeal from the District Court of Oklahoma County, David M. Cook, District Judge.

Mark Andrew Fowler, appellant, was convicted in Oklahoma County District Court in Case No. CRF-85-3343 of three counts of Murder in The First Degree in the commission of Robbery With a Dangerous Weapon. He was tried before a jury who set punishment at death on each

count. The trial court sentenced him accordingly. AFFIRMED

Mark Barrett, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Mark Andrew Fowler, appellant, was convicted in Oklahoma County District Court in Case No. CRF-85-3343 of three counts of Murder in the First Degree in the commission of Robbery With a Dangerous Weapon pursuant to the felony-murder doctrine codified at 21 O.S.1981, § 701.7(B). He was tried before a jury who set punishment at death on each count. The trial court sentenced him accordingly.

For a general statement of the facts, see Fox v. State, 779 P.2d 562 (Okla.Crim.App.1989).

I

Appellant first complains that the trial court erred in failing to order a change of venue based on extensive pretrial publicity. We have reviewed the extensive voir dire in this case, and for the reasons stated in Fox v. State, 779 P.2d 562 (Okl.Cr.1989), we find no error.

II

Appellant next contends that the trial court erred in not severing his trial from his codefendants because of their antagonistic defenses. We have reviewed appellant's argument and for the reasons stated in Fox v. State, 779 P.2d 562 (Okla.Crim.App.1989), we find this assignment to be without merit.

III

Appellant also asserts that the trial court erred by requiring the codefendants to join their nine peremptory challenges. For the reasons given in Fox v. State, 779 P.2d 562 (Okla.Crim.App.1989), we find this contention to be without merit.

IV

Appellant asserts that he was denied a fair trial through the systematic exclusion of "minorities" from the jury. We have reviewed the record, and for the reasons stated in Fox v. State, 779 P.2d 562 (Okla.Crim.App.1989), we find this assignment of error to be without merit.

V

Appellant next contends that he was denied a jury representing a fair cross section of the community because 38 O.S.1981, § 28(A), allows jurors seventy years of age or above to opt out of jury service. For the reasons given in Fox v. State, 779 P.2d 562 (Okla.Crim.App.1989), we find this assignment to be without merit.

VI

Appellant asserts that the trial court erred in denying his motion to suppress the statements he made after his arrest. Specifically, appellant complains that his warrantless arrest at his girlfriend's apartment violated his constitutional rights.

At approximately 8:00 p.m. on the evening of the robbery/murders, Detective Ferling of the Edmond police department received a telephone call from Roger Collins. Mr. Collins informed the detective that he knew who had committed the robbery and murders, and that he knew the location of the weapon that had been used. Detective Ferling arranged for Mr. Collins to be brought to the police station. During an interview, Mr. Collins mentioned Chris Glazner and Jimmie Collins as persons possibly having more information concerning the crimes. Later the same evening, these two gentlemen were also brought in and interviewed. At approximately 11:00 p.m., these three gentlemen revealed the names of Billy Fox and Mark Fowler as the perpetrators of the crimes.

The gentlemen also informed Detective Ferling that the appellant was possibly staying with his girlfriend at her apartment. In an attempt to confirm this, Detective Ferling called the apartment manager and learned that the appellant's girlfriend did rent an apartment there. The manager stated that she also believed a guy named Mark lived there. While the manager did not know if anyone was presently at the apartment, she could see that a light was on. Finally, the manager informed the detective that the occupants were supposed to be moving out soon, and that she had previously seen them moving property.

At approximately the same time, Detective Ferling received word that Billy Fox had been arrested as he was leaving his residence. Meanwhile, a district judge who was in the station, issued a warrant to take both suspects into custody. The detectives proceeded to the apartment, where they met two officers who had already arrived. After some planning, the officers approached the apartment. They knocked on the door and announced themselves as police officers. After receiving a response, the officers knocked again and asked if the appellant was present. The door then opened and the occupants came outside. The appellant was then placed under arrest.

A firmly established principle of constitutional law is that nonconsensual, warrantless instrusions into the dwelling are per se unreasonable. See Coolidge v. New Hampshire, 403 U.S. 443, 444, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). As the United States Supreme Court has repeatedly stated, "warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause and exigent circumstances." Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984). See also Payton v. New York, 445 U.S. 573, 583-590, 100 S.Ct. 1371, 1378-1382, 63 L.Ed.2d 639 (1980).

In the present case, during an in camera hearing at trial, the appellant conceded that probable cause existed for his arrest. Therefore, the only issue for us to consider is whether any exigent circumstances existed. Initially, we note that the Supreme Court has held that an important factor to be considered when determining whether any exigency exists is the gravity of the offense for which the arrest is being made. Welsh, 104 S.Ct. at 2099.

Thus, in light of that fact, and the fact that the police had probable cause to arrest the appellant, we find the following: the detectives knew where the appellant might be, although they did not know if in fact he was there; the detectives knew that the codefendant had been arrested while leaving his residence; the detectives did not know whether the codefendants had been in contact with each other; the detectives realized that if the appellant was not in the apartment he could have been fleeing; that there was a possibility that the appellant was armed; and, that there were other people in the apartment who could have been harmed or held hostage. We therefore find that sufficient exigencies existed to support the warrantless arrest under 22 O.S.1981, § 196, and hold that the trial court properly admitted the appellant's pretrial statement.

VII

In the next assignment of error, appellant complains that the trial court erred by failing to admit the entirety of his pretrial statement. Through the testimony of Detective Fairchild, the State introduced a limited portion of the statement. Appellant asserts that the jury was presented only with the portions which would tend to incriminate him and did not hear the remaining portions which tended to exculpate him.

In Williams v. State, 542 P.2d 554, 573 (Okla.Crim.App.1975), vacated on other grounds 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976), this Court stated that when a confession is admissible, the whole of what the accused said upon the subject at the time of making the confession is admissible and should be taken together; and if the prosecution fails to prove the whole statement, the accused is entitled to put in evidence all that was said to and by him at the time which bears upon the subject of controversy, including any exculpatory or self-serving declarations connected therewith.

Therefore, while the appellant was entitled to offer the whole statement into evidence, the record is bare of any attempt by him to do so. The State used the excised portion to place the appellant at the scene of the crimes. The appellant did not object. In fact, during the in camera hearing, the appellant helped dictate the questions to be put to Detective Fairchild concerning the statement. Moreover, the appellant used Detective Fairchild's testimony during his closing argument, arguing that the appellant was at the store, however, simply as a lookout. Thus, there being no objection raised by the appellant, any alleged error has been waived and this Court has no grounds upon which to base a ruling. Johnson v. State, 662 P.2d 687, 690 (Okla.Crim.App.1983).

VIII

In the next three assignments of error, appellant contends that three individuals who testified as expert witnesses at trial should not have been allowed to do so. We have reviewed the testimony given by each individual, and for the reasons stated in Fox v. State, 779 P.2d 562 (Okla.Crim.App.1989), we find no error.

IX

Appellant next contends that several prejudicial errors deprived him of a fair trial. First, appellant contends that certain photographs and a video tape were more prejudicial than probative and should not have been admitted into evidence. We have reviewed each photograph cited and the videotape, and for the reasons stated in Fox v. State, 779 P.2d 562 (Okla.Crim.App.1989), we find no error.

Appellant also complains that during closing argument, the prosecutor made various statements containing personal opinion as to the sufficiency of the evidence. We disagree. Not only were the comments not objected to, thus waiving all but fundamental error, Trissell v. State, 737 P.2d 1228, 1230 (Okla.Crim.App.1987), we find the comments to be reasonable inferences based upon the evidence. Lewis v. State, 732 P.2d 1, 3 (Okla.Crim.App.1987).

Appellant next asserts that the prosecutor misstated...