Duke v. State, s. F--75--724
| Decision Date | 31 March 1976 |
| Docket Number | Nos. F--75--724,F--75--730,s. F--75--724 |
| Citation | 548 P.2d 230 |
| Parties | James Monty DUKE et al., Appellants, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
This decision consolidates the appeal of James Monty Duke, No. F--75--724, and the appeal of Jackie Martin, Jr. and David Lee Walls, No. F--75--730.
Appellants, James Monty Duke, Jackie Martin, Jr. and David Lee Walls, hereinafter referred to as defendants, were jointly charged, tried and convicted in the District Court, Seminole County, Case No. CR--75--44, of the offense of Robbery With Firearms in violation of 21 O.S.1971, § 801. The jury fixed their punishments at terms of five (5), seven (7) and ten (10) years' imprisonment, respectively. From said judgments and sentences, a timely appeal has been perfected to this Court. Because the assignments of error raised by each defendant are identical, these appeals have been consolidated for the purpose of this opinion.
Briefly stated, the facts presented at trial revealed that on February 28, 1975, at about 3:00 p.m., Mrs. Nellie Ricketts and her husband, J. B. Ricketts, the owner of Ricketts Grocery Store in Cromwell, Oklahoma, were robbed at gunpoint by a person they identified as defendant Walls. Shortly before the robbery, Mrs. Cindy Broughton, the Ricketts' daughter, saw defendants Martin and Walls together in front of the store. She subsequently saw defendant Walls enter the store alone. Walls squatted down looking at some candy for several minutes until all the customers had left the store and then pointed a .38 caliber revolver at Mr. and Mrs. Ricketts, and forced Mrs. Ricketts to place the money from the cash register into a paper bag. The defendant also took a red Okemah National Bank bag containing additional money. He ran out the front door where he met defendant Martin who had been sitting on the front porch all this time. The two men fled on foot in a southwest direction.
The Ricketts Grocery Store is located at the intersection of Highway 56 and Highway 99-A, which runs east-west. Shortly after the robbery, a red and white Gremlin automobile with apparently only one occupant was seen on a dirt road at a location approximately one-half mile south and west of the Ricketts' store. The Gremlin traveled north on the dirt road and turned west onto Highway 99-A, headed toward Highway 99 and Seminole.
At about 3:15 p.m., Officer Terry Thomason of the Seminole Police Department received a police dispatch ordering him to proceed to Highway 99 north of Seminole, and to watch for a red Gremlin automobile which had been seen leaving the vicinity of an armed robbery in Cromwell. About 20 minutes later Officer Thomason stopped a red Gremlin being driven south on Highway 99 at a point about 18 miles southwest of Cromwell. He ordered the driver, defendant Duke, to get out of the car with his hands up. At this point he noticed movement in the rear of the car and ordered defendant Walls to get out of the car. Defendants Walls and Duke were then handcuffed and placed in the patrol car.
Officer Thomason then searched the car and found a box of .38 caliber shells, a .38 caliber revolver, a paper bag containing a number of bills and coins, a red Okemah National Bank money bag, and two knitted caps with eyeholes cut into them which were similar to ones worn by the robbers. Finally, defendant Martin was discovered lying, apparently unconscious, under a pile of clothing in the front passenger seat.
During the trial, a hearing was held out of the presence of the jury on the defendants' motion to suppress the evidence discovered during the search of the Gremlin, and the motion was overruled.
The defendants' first assignment of error urges that their arrest and the warrantless search of the automobile were without probable cause and, therefore, illegal, rendering any evidence discovered during the search inadmissible. The defendants further contend that the verdicts were not supported by properly admissible evidence.
According to 22 O.S.1971, § 196, a police officer may arrest a person without a warrant when he has reasonable cause to believe that the arrestee has committed a felony which has in fact been committed. There is no question here that a felony had in fact been committed. The arrest therefore could be invalid only if the officer had less than probable cause to believe that the defendants had committed that felony when he arrested them. The test of whether police officers have probable cause to make a warrantless arrest is:
'. . . whether at (the moment the arrest was made) the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that he (arrestee) had committed or was committing an offense. . . .'
Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Greene v. State, Okl.Cr., 508 P.2d 1095 (1973).
The record reveals that at about 3:15 p.m. Officer Terry Thomason received a police dispatch stating that a red Gremlin automobile was seen leaving the vicinity of an armed robbery in Cromwell, heading west on Highway 99-A towards Highway 99. About 15 minutes later he spotted a car of that description traveling in the reported direction on Highway 99 at a point about 19 miles southwest of Cromwell. He stopped the car and ordered the driver, who was apparently the sole occupant of the car, to get out. At this time Officer Thomason saw defendant Walls start to rise up in the back seat and then lie back down. He ordered defendant Walls, who fit the broadcasted description of one of the two robbers, to get out of the ...
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...test was set forth in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), as adopted by this state in Duke v. State, Okl.Cr., 548 P.2d 230 (1976): " . . . whether at (the moment the arrest was made) the facts and circumstances within their knowledge and of which they had reasona......
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