DeVooght v. State, F-84-214

• Decision Date: 25 June 1986
• Docket Number: No. F-84-214,F-84-214
• Citation: 1986 OK CR 100,722 P.2d 705
• Parties: John Edward DEVOOGHT, III, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 705

722 P.2d 705

John Edward DEVOOGHT, III, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-214.

Court of Criminal Appeals of Oklahoma.

June 25, 1986.

Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

Opio Toure, Rick Ault, Asst. Public Defenders, Oklahoma City, for appellant.

OPINION

BUSSEY, Judge:

John Edward DeVooght, III, was convicted in Oklahoma County District Court of Murder in the First Degree and punishment was assessed at life imprisonment.

Appellant was tried before a jury for the murder of six-year-old Patricia Carter who had been found raped, sodomized, and beaten to death in a field near her home on the morning of October 2, 1982. Appellant was fifteen, nearly sixteen, years old at the time. He and his mother, Linda Duke, had been staying at the victim's mother's home where Duke was responsible for the care of the three Carter children.

Kathie Carter returned home from work between 3:00 and 4:00 a.m., October 2, to find Patricia and appellant both gone. At 5:30 a.m., appellant was located at his grandmother's home some thirteen blocks away. In an attempt to find Patricia, the police asked him if he knew where she was. He did not know, and could not remember how he had gotten to his grandmother's house that morning because he had been drinking homemade beer the night before. The investigating officers thought that the child could have followed appellant when he left the Carter residence and told him they would like to jog his memory about the route he took to his grandmother's house. He accompanied the officers in the backseat of their cruiser while they toured the streets between the two residences. Nothing helped to restore his memory, and he was later taken to the police station so they could record his statement. All other adults involved were also to give their statements at the police station. Appellant continued to maintain his lack of memory.

The officers started to leave the station to return to the site of the investigation. At that time, they were informed the little girl had been found dead. Appellant was returned to the station. Later that same day, he and his mother were advised of their rights, appellant was interrogated, and he was arrested.

Appellant claims that he was actually arrested at 5:30 a.m. when the officers first spoke with him, and that his arrest was illegal because the police acted without probable cause to believe that he had committed a crime. Therefore, he argues, the statements he made and the evidence found as a result should have been suppressed.

During a hearing on appellant's motion to suppress, the investigating officers testified that appellant was not under arrest, was not suspected of a crime, and was free to leave prior to the time Patricia's dead body was found. Until then, they did not know a crime had been committed and their purpose was simply to locate a missing juvenile. Appellant never indicated he did not want to help the officers, and never asked to leave them. Additionally, he requested not to be returned to the Carter residence for fear of Mr. Carter who had earlier tried to assault him.

Arrest is the "taking, seizing, or detaining the person of another either by touching, or by any act which indicates an intention to take him into custody and subject the person arrested to the actual control and will of the person making the arrest...." Scott v. State, 617 P.2d 240 (Okl.Cr.1980). However, when a person voluntarily cooperates with the police and is free to leave, there is no arrest. Davis v. State, 620 P.2d 1346 (Okl.Cr.1982). If there is no manual seizure or any resistance, the intentions of the parties are very important. There must be an intent to arrest by the officer and an understanding by the arrestee that submission is necessary. Holmes v. State, 568 P.2d 317 (Okl.Cr.1977).

We find that appellant cooperated with the police voluntarily and that the officers did not intend to arrest him until Patricia was found dead. The only touching by the officers involved escorting appellant to their cruiser and putting him in the backseat after Gary Carter tried to assault him. Appellant's impression of whether he was under arrest is also pertinent. Holmes, supra. His request of the officers to not be taken back to the Carter residence where Gary Carter was located indicates his understanding that he was not under arrest.

At most, appellant could have been considered seized for investigative purposes. But because it was justified at its inception and reasonably related in scope to the circumstances, there was no violation of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The law enforcement purposes served justified the length of the stop and actions taken. United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). As discussed further in appellant's next assignment, the officers had some information that appellant was seen leaving the Carter home with the victim. Coupled with the fact that he could not remember his own path to his grandmother's house, it was reasonable for the police to ask his assistance in the search for the missing child.

Appellant also contends that his arrest was illegal because the police lacked probable cause to believe he had committed a crime when he was arrested. The trial judge found, as we do, that the officers intended to seize him at approximately 9:30 a.m. when they learned that Patricia was found dead. At that point, they had learned that appellant was the last person seen with the victim. Dena, Patricia's younger sister, had told her father, "I saw John take Patty out of the house. He had her by the arm and she was crying." Appellant and the victim were missing from their home and she was crying. The officers had learned that there had been a dispute on October 1, 1982, between appellant and the victim, appellant stepping on the victim's hand and his mother slapping him later as a result. Appellant reported to the officers that his intoxication had caused him to forget how he had even gotten to his grandmother's house from the Carter residence.

Probable cause exists if the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient to warrant a prudent man in believing that an offense had been or was being committed. 22 O.S.Supp.1982, § 196; Castleberry v. State, 678 P.2d 720 (Okl.Cr.1984). Appellant contends that since there was no direct evidence at the time of arrest to connect him to the crime, probable cause could not be established. Although direct evidence is sometimes cited in support thereof, it certainly is not required to prove probable cause. Similarly, circumstantial evidence may be used to prove guilt beyond a reasonable doubt. Luker v. State, 552 P.2d 715 (Okl.Cr.1976). We find no error.

As a subproposition of the previous assignments, appellant argues that his statements to the police and physical evidence obtained thereby were products of an illegal arrest and should have been suppressed at trial. Having previously found his arrest to have been legally made, this assignment is without merit.

Appellant next asserts that his inculpatory statements to the police and the evidence obtained therefrom should have been suppressed as being obtained in violation of due process and 10 O.S.1981, §§ 1107 and 1109. He complains that he was held for interrogation without being brought before a judge as required by 10 O.S.1981, § 1107. Appellant's assignment is not specific on this point, but the record does indicate that the day of the arrest was a Saturday. The officer who interrogated appellant testified that until after he spoke with DeVooght on Saturday between 3:00 and 4:00 p.m., he was only being held as a material witness.

A memorandum from the Presiding District Judge to the police department was introduced which gave directives for the handling of juveniles in police custody. These directives were in compliance with 10 O.S.1981, § 1107, and the police apparently attempted to follow them in appellant's case.

Being a Saturday, it appears that a district judge was difficult to contact. But, appellant was admitted to the Oklahoma County Juvenile Detention Home within the hour following being interviewed on the afternoon of October 2. The sequence of events is not well presented in the record. It appears, however, that he was not delayed from being admitted to the juvenile center for the purpose of interrogation and our review does not reveal a violation of the pertinent statute.

Title 10 O.S.1981, § 1109, prohibits admission of statements of children into evidence unless the questioning is done in the presence of the child's parent, guardian, or custodian and the child and parent are first advised of their rights. Appellant and his mother were given a rights waiver form which they each read and signed before interrogation. The form stated the Miranda¹ warnings. Appellant does not contend that he and his mother were unable to read and understand their rights, but instead that he did not have the "supportive presence" of his mother because she had a hangover and had been seen drinking beer during the day. M.D.G. v. State, 584 P.2d 1365 (Okl.Cr.1978). Appellant also complains that he had a hangover from drinking an alcoholic beverage the night before and was not sure if he understood his rights at the time he signed the waiver beause he was not feeling well.

We do not find a violation of the statute or due process. J.A.M. v. State, 598 P.2d 1207 (Okl.Cr.1979). The officers who interrogated appellant testified that both DeVooght and his mother appeared lucid; neither appeared intoxicated. Neither complained to the officers they could not understand the form. One officer told the pair that he could not discuss the case with them unless they signed it. The waiver form acknowledges that appellant and...