Faulkner v. State

• Decision Date: 11 June 1982
• Docket Number: No. F-80-259,F-80-259
• Citation: 646 P.2d 1304
• Parties: Ted Franklin FAULKNER and Stephen Ray Young, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1304

646 P.2d 1304

Ted Franklin FAULKNER and Stephen Ray Young, Appellants, v. The STATE of Oklahoma, Appellee.

No. F-80-259.

Court of Criminal Appeals of Oklahoma.

June 11, 1982.

An appeal from the District Court, Tulsa County; Margaret Lamm, District Judge.

Ted Franklin Faulkner and Stephen Ray Young, appellants, were convicted in Tulsa County District Court, Case No. CRF-78-3172, for the offense of Robbery with Firearms, After Former Conviction of a Felony, sentenced to ninety-nine (99) years and appeal. Judgments and sentences AFFIRMED.

Johnie R. O'Neal, Asst. Public Defender, Tulsa, for appellants.

Jan Eric Cartwright, Atty. Gen., Danny K. Shadid, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

Ted Franklin Faulkner and Stephen Ray Young, appellants, were found guilty, in Case No. CRF-78-3172 in the Tulsa County District Court, of Robbery with Firearms, in violation of 21 O.S.1981, § 801. The trial court assessed punishment, in accordance with the jury's verdict, at ninety-nine (99) years in custody of the State Department of Corrections. From this verdict and sentence the appellants have conjointly perfected this appeal.

In the early morning hours of December 4, 1978, Mr. Nunnelee was awakened by a loud banging noise. When he left his bedroom to investigate the unusual noise, he encountered a man wearing a mask with eye and mouth holes cut from it and holding a shotgun. He was instructed to go back to his bedroom or he would be killed. When Mr. Nunnelee returned to his bedroom he was instructed to lay down on the floor. He was then "hog-tied."

Mrs. Nunnelee and their four children were also tied up by the robbers. Several members of the family testified at trial that they heard the robbers use the name "Ted" while talking to each other. The robbers were in the Nunnelee's home for approximately twenty minutes. The robbers left through the back door when they apparently were surprised by the arrival of an unexpected police car.

The police car was driven by Officer Overton. She had been called to investigate a suspicious van parked near the Nunnelee's residence. Upon investigation, she discovered a woman sitting in the van. A bulletin concerning the Nunnelee robbery was soon broadcast over the police radio. Other officers arrived on the scene. From information gained there, the police went to an apartment building in search of the suspects.

The officers knocked on the apartment door, announced who they were and why they were there. After receiving no answer, the officers opened the unlocked door and entered the apartment. They searched the rooms and found them to be unoccupied. They saw a shotgun barrel in the kitchen and found pieces of fabric lying on the bed. Knowing that the robbers had used a shotgun and wore masks from which eye and mouth holes had been cut, the officers seized these items and left.

The appellants allege as their first assignment of error that the jury was improperly informed of the woman's name who was found sitting in a van near the Nunnelee's residence. A review of the record reveals that the prosecutor asked Officer Overton if she knew who the person was that was sitting in the van. She replied, "The young lady's name was Marilyn Rice. She has another name that she goes by, the name of Marilyn Pigeon." Officer Wortham later testified that he believed the woman's name was Marilyn Faulkner. A witness may testify on a matter of which he has personal knowledge. 12 O.S.1981, § 2602. These witnesses' responses accordingly were proper. This evidence then was properly before the jury. This is dispositive of the appellant's first contention.

The appellants next contend that once the jury had this information combined with the testimony that the officers left the scene of the robbery and went to a specific apartment in search of two suspects, a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) occurred. We find no merit in this argument as Bruton was addressed to the problems that arise when multiple co-defendants stand trial together and both have confessions in which they implicate the other. This situation is not present in the instant case as Marilyn Faulkner was not a codefendant and her statements were not introduced into evidence. We accordingly decline to apply Bruton to the instant case.

The appellants allege as their next assignment of error that their head hair samples were illegally seized. They contend that the Miranda warnings should have been given before they were requested to provide these samples and that the samples were seized in a manner contrary to this Court's holding in Cole v. Parr, 595 P.2d 1349 (Okl.Cr.1979). We do not agree.

The appellants in the instant case were approached while in custody by the Sheriff and given a hemostat clamp to remove hair samples from their heads. They cooperated with the Sheriff and personally removed their hair samples. We find that seizing head hair samples in this manner does not offend personal privacy and dignity and thus does not constitute an unwarranted intrusion by the State. United States v. Weir, 657 F.2d 1005 (8th Cir. 1981); United States v. D'Amico, 408 F.2d 331 (2nd Cir. 1969); State v. McCumber, 622 P.2d 353 (Utah 1980). The appellants thus were properly required to provide such samples, as one may properly be required to supply photographs, fingerprints and handwriting samples for identification purposes. See Garrett v. State, 525 P.2d 1238 (Okl.Cr.1974).

The appellants' argument concerning Cole v. Parr, supra, will not be accepted by this Court. In Cole, we dealt with the situation in which the State wishes to obtain blood, saliva, seminal fluid and pubic hairs from the defendant. These types of specimens go beyond the body's surface and involve a significant intrusion upon one's privacy and dignity. The guidelines in Cole were accordingly developed to strike a balance between the State's need to obtain such samples and the right to be protected from unwarranted intrusions. We do not feel it is necessary to apply these guidelines to the instant case. As was said in United States v. D'Amico, supra, "the clipping by the officer of the few strands of hair from appellant's head was so minor an imposition that the appellant suffered no true humiliation or affront to his dignity."

In the third proposition of error, appellants assert that the trial court committed error by failing to suppress evidence gained from a search of the apartment. The officers went to the apartment immediately after investigating the scene of the crime moments after the robbery had been committed. In view of the facts that the officers had probable cause to arrest the appellants for the felony that had just been committed; that the officers had been told that the suspects were armed; that evidence of the crime could have easily have been destroyed; and that the officers had acquired a reasonable belief that the suspects were likely to be at the locale, we find that an emergency situation existed which justified the attempted warrantless arrests under 22 O.S.1981, § 196. It was not feasible for the law enforcement officials to take the time required to secure an arrest warrant, as to do so might have resulted in the escape of the fleeing suspects or in the loss or destruction of evidence.

As the officers' presence in the apartment was justified by the need to determine the presence or absence of the suspects, the plain view doctrine was triggered. This Court has often held that an officer lawfully in a place may seize, without obtaining a search warrant, any item he inadvertently discovers in plain view as long as he has probable cause to believe that the item is evidence of a crime. Tucker v. State, 620 P.2d 1314 (Okl.Cr.1980).

It is clear from the record that the officers' discoveries were not the result of a thorough search through personal belongings, but rather were inadvertently made while going through the apartment looking for occupants. Additionally, the items found, the shotgun barrel and the fabric believed to be eyeholes cut from the masks, were clearly evidence incriminating the suspects. The items were thus properly seized under the plain view doctrine, and this assignment of error is without merit.

The fourth proposition of error argued by the appellants is that the trial court committed error by allowing the State to present the testimony of Douglas Kay. Kay apparently took the appellants to California...