Black v. State

• Decision Date: 01 February 1994
• Docket Number: No. F-89-1221,F-89-1221
• Parties: Elwood BLACK, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 35

871 P.2d 35

Elwood BLACK, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F-89-1221.

Court of Criminal Appeals of Oklahoma.

Feb. 1, 1994.

Rehearing Denied March 30, 1994.

An Appeal from the District Court of Oklahoma County; Thomas C. Smith, Jr., District Judge.

Elwood Black, Jr., Appellant, was tried by a jury in the District Court of Oklahoma County and convicted of First Degree Robbery (21 O.S.1981, §§ 791, 797). The jury recommended Appellant be sentenced to imprisonment for a term of five (5) years. The trial court sentenced accordingly. It is from Jo-Ann Askins, Oklahoma City, at trial, Lyn Entzeroth, Asst. Appellate Indigent Defender, Norman, on appeal, for appellant.

this judgment and sentence that Appellant appeals. AFFIRMED.

Emaline Miller, Asst. Dist. Atty., Oklahoma City, at trial, Susan Brimer Loving, Atty. Gen., Steven S. Kerr, Asst. Atty. Gen., Oklahoma City, on appeal, for the State.

OPINION

LUMPKIN, Presiding Judge:

Appellant Elwood Black, Jr., was tried by a jury in the District Court of Oklahoma County and convicted of First Degree Robbery (21 O.S.1981, §§ 791, 797). The jury recommended Appellant be sentenced to imprisonment for a term of five (5) years. The trial court sentenced accordingly. ¹ It is from this judgment and sentence that Appellant appeals. We affirm, and publish because the appeal presents two issues of first impression before this Court.

Victim Georganna Cotton was returning to her job at a Shepherd Mall department store after a late lunch on August 6, 1988. She was carrying a small white clutch purse under her left arm. In the parking lot, she felt an object brush against her left leg. She turned, and saw the object was a small brown car (Alan Wallace, who apparently pled guilty to the charge before this trial, owned a small brown car at the time of the robbery). As the car drove by, a man identified as Appellant reached out through the passenger window, grabbed her purse and pushed her down. Ms. Cotton required medical treatment for asphalt burns. She looked into Appellant's face, not more than 12 to 18 inches away, as the car drove by. She gave a complete description to Oklahoma City police officers, and identified him at the preliminary hearing, picking him out of a three-man "lineup" (Appellant was not seated at counsel table at that time). Appellant was apprehended in Del City at approximately 5:30-6:00 p.m. the day of the robbery, after being arrested on another unrelated robbery. He was not charged for the Del City offense, but was held for Oklahoma City authorities. The length of that detention is the subject of the first proposition of error.

In his first proposition of error, Appellant contends he was illegally detained in violation of state statutes and constitutional provisions. We hold Appellant was detained in violation of the Fourth Amendment to the United States Constitution. We also hold the illegal detention was harmless beyond a reasonable doubt.

Appellant argues both Due Process and Fourth Amendment grounds in urging reversal. He cites violation of state constitutional ² and statutory ³ provisions as a basis of his due process allegation of error. This Court has held that when a violation of the statutes directing prompt appearance before the magistrate ⁴ is alleged, the party complaining must show prejudice. See Johnson v. State, 731 P.2d 993, 1001 (Okl.Cr.1987), cert. denied, 484 U.S. 878, 108 S.Ct. 35, 98 L.Ed.2d 167 (1987) (Burden on the defendant to show that he was prejudiced by failure to be take before a magistrate immediately. The mere fact that he gave a statement before being taken before a magistrate does not warrant reversal per se ); Dutton v. State, 674 P.2d 1134, 1138 (Okl.Cr.1984), cert. denied, 467 U.S. 1256, 104 S.Ct. 3548, 82 L.Ed.2d 850 (1984) (Mere fact that a statement was taken from a defendant before he was taken before a magistrate does not warrant reversal; the defendant has the burden of proof to show that the delay caused him prejudice).

In support of his claim Fourth Amendment rights guaranteed by the U.S. Constitution were violated, Appellant cites Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) and County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Pugh states the Constitution requires a probable cause hearing within a reasonable time after a warrantless arrest. However, the case does not set forth remedies if the hearing is not held. McLaughlin held the "prompt" time requirement in Pugh to be 48 hours. Both are civil cases dealing with violations of constitutional rights. ⁵ As with Pugh, McLaughlin does not indicate a defendant's remedy if the procedure is not followed. However, Pugh does make it clear a violation of the prompt probable cause hearing requirement does not automatically necessitate reversal of a criminal conviction:

Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.

Pugh, 420 U.S. at 119, 95 S.Ct. at 865. The State uses this language to argue an appellant has no remedy in a criminal case if a prompt hearing is not held. We disagree. As noted in Pugh, the rationale behind the requirement for a prompt hearing is to prevent an onerous oppression, a situation where an inmate is unduly influenced by a coercive atmosphere. Faced with a pretrial confinement that may "imperil the suspect's job, interrupt his source of income, and impair his family relationships," Id. at 114, 95 S.Ct. at 863, he may be more pliable and more easily coerced. Because of this, an unlawful detention would not be cured by a Miranda warning. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

The Supreme Court in McLaughlin arbitrarily determined any delay longer than 48 hours in getting a defendant to a probable cause hearing is unreasonable. ⁶ However, we find Appellant is incorrect when he claims all evidence must be suppressed because he was not arraigned within 48 hours of arrest. As Pugh itself makes clear, a conviction will not be vacated simply because a defendant was held for more than 48 hours without a hearing. On the other hand, McLaughlin makes it clear being held longer than 48 hours without a determination can be a Fourth Amendment violation. It would be inconsistent to say the Fourth Amendment applies, yet also hold this to be the one situation in constitutional law where the Exclusionary Rule does not apply to Fourth Amendment violations. Nor do we believe an untimely probable cause hearing retroactively "cures" the time spent without such a hearing, any more than a bad search can later be justified if it proves fruitful. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (That heroin found does not cure wrongful arrest).

Rather, we interpret Pugh and McLaughlin to mean that if authorities in some fashion afford a defendant a probable cause hearing within 48 hours, this short delay is presumptively reasonable--but not automatically so. See McLaughlin, 500 U.S. at ----, 111 S.Ct. at 1670, 114 L.Ed.2d at 63. On the other hand, a delay of more than 48 hours is presumptively unreasonable. Id. We find the longer the time a defendant sits in jail without some form of probable cause hearing, the more likely the detention will become oppressive to him and the more likely he will be coerced into giving evidence he otherwise would not give, for the reasons stated above. ⁷ Therefore, we must presume any evidence gathered after the expiration of the 48-hour period is inadmissible, as the burden of proof shifts at that point and the State has made no effort to demonstrate "the existence of a bona fide emergency or other extraordinary circumstance," Id., to rebut the presumption of unreasonableness in this case.

Appellant complains of several instances of illegally seized evidence. We will address each one in turn.

Appellant was arrested by Del City Police Officer Rennie August 6 as a suspect in an unrelated robbery. At that time, police seized a cap he was wearing. He was not charged in the unrelated robbery (an eyewitness could not identify him, and Alan Wallace confessed to the robbery). On August 9 or 10, the Oklahoma City police put a hold on him. He was transferred to Oklahoma City on August 10. At this point, he had not been taken before a magistrate. A photograph was taken of Appellant after he was transferred to Oklahoma City. On August 11, the victim identified him from a photo line-up. That same morning, he was interviewed. He denied robbing the victim at Shepherd Mall, but admitted being with Alan Wallace all day (Wallace wrote out a statement admitting he drove the car while Appellant took the purse in the mall parking lot). On August 17, the prosecutor filed charges relating to the mall robbery and Appellant was taken before a magistrate.

Based on these facts, the cap was legally seized, as it was seized at the time of arrest. The photograph and statement are presumptively inadmissible: they were not obtained within the 48-hour period, and the prosecution gave no reason why they were not.

It is well settled that even constitutional violations need not necessitate reversal if it can be proved they were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). An analysis of the illegally obtained evidence becomes necessary.

The photograph that was taken was used in a pre-trial photo line-up. However, the only mention of the photo line-up during trial came on invitation from Appellant's counsel. ⁸ As such, it was clearly invited error in the trial. See Penn v. State, 684 P.2d 562, 564 ...