Coleman v. State, F-79-600

• Decision Date: 11 July 1983
• Docket Number: No. F-79-600,F-79-600
• Citation: 668 P.2d 1126
• Parties: 1983 OK CR 101 Charles Troy COLEMAN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1126

668 P.2d 1126

1983 OK CR 101

Charles Troy COLEMAN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-600.

Court of Criminal Appeals of Oklahoma.

July 11, 1983.

Rehearing Denied Sept. 19, 1983.

As Corrected Sept. 19, 1983.

An Appeal from the District Court of Muskogee County; Hardy Summers, District Judge.

Charles Troy Coleman, appellant, was convicted of the crime of Murder in the First Degree, in the District Court of Muskogee County, Case No. CRF-79-102. He was sentenced to death, and he appeals. AFFIRMED.

D.D. Hayes, Muskogee, for appellant.

Jan Eric Cartwright, Atty. Gen., Dena L. Bates, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Presiding Judge:

Charles Troy Coleman was convicted of Murder in the First Degree, in Muskogee County District Court, Case No. CRF-79-76. In the second stage of the trial, pursuant to 21 O.S.1981, § 701.10, the jury assessed the death penalty.

At approximately 4:15 p.m. on February 9, 1979, John Seward was found in the basement of his sister's home, dead as a result of a single shotgun wound to the back of his head. His wife, Roxie Seward, was found next to him, dead as a result of four shotgun wounds inflicted from only inches away. Determined to be missing from the home of Mr. and Mrs. B.L. Warren were the Seward's wallets, Mrs. Warren's turquoise watch, packages of frozen meat stamped "Hogle, Not for Sale," and various other food items.

Later that same day, shortly after 6:00 p.m., the defendant was stopped and arrested for traffic violations. A search of the camper pickup truck he was driving revealed the Seward's wallets, the packaged meat and other various food items, which were subsequently identified by Mrs. Warren at trial as being from her pantry.

I.

In his first assignment of error, the defendant alleges that the trial court erred in failing to suppress all evidence obtained as a result of the warrantless search of his pickup truck. Specifically, the defendant alleges the following: That the warrantless search was not justifiable as incident to an arrest for a traffic offense; that his vehicle was illegally impounded on private property; that the alleged inventory search was a subterfuge; and that there was no consent to search the vehicle.

At approximately 6:00 p.m. on the afternoon in question, Officer Ralph Rose, an off-duty dispatcher for the Wagoner County Sheriff's Department, motioned at the defendant for speeding and passing in a no passing zone, by shaking his finger at him as he passed. Officer Rose testified that Coleman pulled his pickup truck to the side of the road, and a conversation ensued which culminated when Coleman got back into his vehicle. As the defendant departed at a high rate of speed, Officer Rose testified that he observed the passenger in the defendant's truck drinking a beer. Rose turned on his red lights and pursued the defendant at speeds up to 100 miles per hour. With the assistance of Highway Patrol Trooper Glen Smithson and Wagoner County Sheriff Tommy Gilbert, Officer Rose stopped the defendant's vehicle and placed him under arrest for various traffic violations and possible driving under the influence of intoxicating liquor. Since Officer Rose observed the defendant speeding, passing in a no passing zone, attempting to elude an officer and exhibiting intoxicated behavior, he had probable cause to arrest Coleman, pursuant to 22 O.S.1981, § 196, for committing misdemeanors in his presence. Thus, Coleman's initial arrest was proper and valid.

The defendant relies upon Lee v. State, 628 P.2d 1172 (Okl.Cr.1981) and Kelly v. State, 607 P.2d 706 (Okl.Cr.1980), to support his argument that his vehicle was on private property and therefore the law enforcement officers were without authority to impound it without a request by the property owner. We are of the opinion that the facts in the instant case are distinguishable from the facts in Lee, supra, and Kelly, supra. In the instant case the vehicle in question was involved in a high speed, hot pursuit chase which ended only when the defendant pulled into a residential driveway and stopped.

Coleman initially contended that he lived at the residence; however, Sheriff Gilbert was personally acquainted with the people who owned the property, and knew that neither the defendant nor others whom he subsequently claimed to be visiting lived there. It was obvious to the officers that the defendant had merely driven his vehicle into the residential driveway to seek sanctuary. From Sheriff Gilbert's association with the actual residents and the presence of perishable foodstuffs in plain view in the truck's camper, it was apparent that the vehicle would have to be removed from the property. Coleman was in custody; his companion who had been observed drinking beer was properly forbidden to drive the vehicle; and, the defendant was unable to make other arrangements for the safekeeping of his belongings. We are of the opinion that the officers acted properly when they impounded the defendant's vehicle for the purpose of caretaking the defendant's property in accordance with South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Trooper Smithson testified that he handed an inventory sheet to Officer Rose and instructed him to inventory the truck while he and Sheriff Gilbert transported the Colemans to the Wagoner County Jail. Furthermore, the trooper stated that while taking the defendant into custody, he had observed, in plain view, open wallets in the truck's glove compartment bearing the names "Seward," and a box of frozen meat stamped "Hogle, Not for Sale," in the truck's camper, and that he routinely questioned Coleman about them. In route to Wagoner, his investigatory instincts having been aroused, Trooper Smithson radioed the scene of the ongoing homicide investigation in Muskogee County and inquired whether the victims' names were "Seward" and if meat stamped "Hogle, Not for Sale," had been taken. Upon receiving an affirmative reply, Trooper Smithson immediately stopped his cruiser, handcuffed Jeanette, read both Colemans their Miranda rights, turned his vehicle around and transported the Colemans to the Muskogee County Jail.

Officer Rose stated that pursuant to a radio communication from Trooper Smithson, informing him that the Colemans had been arrested as suspects in the Muskogee murders, he stopped his inventory, without having written anything on the inventory sheet, and waited for homicide investigators to arrive.

Both Officer Rose and Trooper Smithson testified that the inventory initiated at the time of the defendant and his passenger's arrest was pursuant to established departmental policy. As stated above, the wallets, the meat marked "Hogle, Not For Sale" and the other foodstuffs were all found during the initial stages of the inventory. The fact that neither Officer Rose nor the other officers had yet to reduce the findings of their inventory to writing is immaterial. The record discloses the good faith in which the inventory was initiated. It was only the sudden focus upon the defendant as a murder suspect which prevented completion of the list.

Although Agent Chrisco may have had time to arrange for a search warrant to be obtained while the pickup was being towed to Muskogee, we need not reach the issue of the appropriateness of his actions. The evidence complained of had previously been legally discovered, and was properly in police custody by virtue of the impoundment of the vehicle and the contents thereof. Swain v. State, 621 P.2d 1181 (Okl.Cr.1980); South Dakota v. Opperman, supra. ¹

Thus, we find that the arrest of the defendant and the subsequent impoundment and inventory of his vehicle were proper, and the evidence of which the defendant now complains was properly admitted. This assignment of error is without merit.

II.

In his second assignment of error, the defendant alleges that the trial court erred in failing to exclude statements made by him at the time of his arrest, because he did not immediately receive the Miranda warnings. Defendant complains of three separate incidents in which Officer Smithson testified that the defendant made inculpatory statements to questions regarding the wallets, groceries, and the defendant's reasons for stopping at the residence where he was arrested. ²

We initially note that the defendant failed to object to Trooper Smithson's testimony at the time it was offered at trial. This Court has consistently held that when no specific objections are made at trial to the admission of a defendant's inculpatory statements, such objections cannot later be made as assignments of error on appeal. Long v. State, 567 P.2d 110 (Okl.Cr.1977). See also, U.S. v. Holliday, 474 F.2d 320 (10th Cir.1973).

In addition, the defendant did not include this assignment of error in his motion for new trial nor in his petition in error, and has not properly preserved this assignment of error for review. Hawkins v. State, 569 P.2d 490 (Okl.Cr.1977); Chronister v. State, 538 P.2d 215 (Okl.Cr.1975).

Furthermore, even if the alleged error had been properly preserved for review, we are of the opinion, after having carefully reviewed the record before us, that the questions asked of the defendant were purely investigatory in nature, and were not accusatory. The law enforcement officer who asked the questions had no inkling that Coleman had been involved in a homicide, at the time the questions were asked; thus, it cannot be said that the purpose of the questioning was to elicit a confession. The defendant was arrested for traffic violations and possible D.U.I., and it was not until Trooper Smithson called the homicide scene, while in route to the Wagoner County Jail, that the defendant became the "focus" of a homicide investigation, and he was immediately read his Miranda rights warning at that time. See, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Thus, we are...