Harjo v. State, F-88-888

• Decision Date: 13 July 1994
• Docket Number: No. F-88-888,F-88-888
• Citation: 882 P.2d 1067,1994 OK CR 47
• Parties: Jerald Wayne HARJO, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1067

882 P.2d 1067

Jerald Wayne HARJO, Appellant, v. STATE of Oklahoma, Appellee.

No. F-88-888.

Court of Criminal Appeals of Oklahoma.

July 13, 1994.

Order Denying Rehearing

Oct. 25, 1994.

As Corrected Dec. 9, 1994.

An Appeal from the District Court of Seminole County Before Gordon R. Melson, District Judge.

JERALD WAYNE HARJO, Appellant, was tried by jury for the crimes of Murder in the First Degree, First Degree Burglary, Larceny of an Automobile, Burglary of an Automobile in Case Nos. CRF-88-7 and CRF-88-8 in the District Court of Seminole County before the Honorable Gordon R. Melson, District Judge. Appellant was sentenced to death, sixty (60) years, thirty (30) years and fifteen (15) years in the custody of the Oklahoma Department of Corrections and has perfected this appeal. Judgment and Sentence is for First Degree Burglary, Larceny of an Automobile and Burglary of an Automobile is AFFIRMED. Judgment of guilt for the crime of Murder in the First Degree is AFFIRMED; sentence of death is AFFIRMED.

Rob L. Pyron, Kursten Remer, Seminole, for appellant at trial.

William N. Peterson, Dist. Atty., Joseph F. Wilson, Asst. Dist. Atty., Wewoka, for appellee at trial.

Jamie D. Pybas, Asst. Appellate Public Defender, Norman, for appellant on appeal.

Susan B. Loving, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen., Oklahoma City, for appellee on appeal.

OPINION

PER CURIAM.

Jerald Wayne Harjo, Appellant, was tried by jury for Murder in the First Degree, in violation of 21 O.S.Supp.1982, § 701.7 (Count I); First Degree Burglary, in violation of 21 O.S.1981, § 1431 (Count II); Burglary of an Automobile, in violation of 21 O.S.1981, § 1435 (Count III); Rape, in violation of 21 O.S.Supp.1983, § 1111 (Count IV); and Larceny of an Automobile, in violation of 21 O.S.1981, § 1720 (Count V) in Seminole County District Court, Case Nos. CRF-88-7 and CRF-88-8. Each of the non-capital counts were charged after former conviction of a felony. See 21 O.S.1981, § 51.

The jury acquitted Appellant of rape and returned a verdict of guilty on each of the other counts. Following the second stage of trial the jury set punishment at sixty (60) years for Count II, thirty (30) years for Count III, and fifteen (15) years for Count V. For Count I, after finding both of the aggravating circumstances charged in the Bill of Particulars: that the murder was especially heinous, atrocious and cruel, and that the murder was committed to avoid lawful arrest or persecution, the jury recommended a sentence of death. The trial court imposed each sentence set by the jury. We affirm judgment and sentence.

Late Saturday night, January 16, 1988, after 24 hours of drinking beer and vodka, Appellant rode his nephew's bicycle in the rain past the home of sixty-four year old Ruth Porter. He abandoned the bike at the side of the road. Parked in Mrs. Porter's driveway, were a van and a 1972 Ford Mustang. Appellant took a screwdriver from the van. He then took two cinder blocks and piled them under a back bedroom window. After using the screwdriver to remove the screen, he entered Mrs. Porter's home.

He found a pillowcase and tore two eye holes in it with his teeth. Wearing the pillowcase he went into Mrs. Porter's bedroom. When she woke up the appellant got scared and put a pillow over her face. He also strangled her with his hands. At some point Appellant burned her pubic hair with a lighter. After killing Mrs. Porter, the appellant took the keys to her car, and drove it to his brother's home where it was found by the Wewoka Police Officer Blankenship that afternoon. The police were looking for Mrs. Porter's car, for her dead body had been discovered and reported by her son-in-law.

Officer Blankenship questioned the appellant at his brother's home after giving him the standard Miranda warning. Appellant told a second officer he didn't take the car, but he knew who did and would write their names on a piece of paper. Appellant wrote the names "Karen and David Harrod". A roadblock was set, but the Harrods were never located. County Sheriff Jerald Sisco arrived and took the Appellant to the sheriff's office for questioning as a material witness. At the sheriff's office Appellant was again given the standard Miranda warning and he signed a waiver of rights. Sheriff Sisco began questioning the appellant at about 1:00 p.m. Sunday and Appellant confessed to the crimes some four hours later.

PRETRIAL ISSUES

A suppression hearing was held following defense counsel's motion to suppress the confession. The trial court found Appellant's confession to be knowing and voluntary and thus admissible at trial. Appellant challenges this ruling on two grounds: (1) that the confession was coerced by the police; and (2) that the combined effects of alcohol consumption, low intelligence and the generally coercive atmosphere of the police station rendered the confession involuntary and unknowing.

In a suppression hearing the State bears the burden to show by a preponderance of the evidence a confession is knowing and voluntary. Hardin v. State, 649 P.2d 799 (Okl.Cr.1982); Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). On appeal the trial court ruling of admissibility will be upheld if the record as a whole supports it. Smith v. State, 736 P.2d 531 (Okl.Cr.1987).

The trial court had before it uncontroverted evidence to establish petitioner's mental state: (1) he had consumed considerable amounts of beer and vodka over the 48 hour period prior to his confession, and (2) his IQ placed him in the border between low intelligence and retardation. Uncontroverted evidence also established the appellant (1) had been given the Miranda warnings twice, (2) understood the questions asked of him, and (3) understood the importance of his answers. We have listened to the audio tape of the interview and confession which was reviewed by the trial court. We are satisfied the appellant responded rationally and with understanding to questions posed by the sheriff. The trial court did not err in finding the appellant's confession was knowing in spite of his consumption of alcohol and low intelligence. See Phillips v. State, 650 P.2d 910 (Okl.Cr.1982); Yeager v. State, 742 P.2d 575 (Okl.Cr.1987).

Having determined the confession was knowing, we must also determine whether it was voluntary. We have examined the record to determine whether the police engaged in coercive tactics; that is overreaching or exploitation of the appellant's mental state. Coercion is that which overcomes the will of the confessor, and necessarily includes police overreaching. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Appellant would have this Court hold the mere act of questioning at the sheriff's office is evidence of coercion. Such a holding is not tenable for it would strip the police of a necessary investigation tool, and it has been rejected by the United States Supreme Court. Colorado v. Connelly, 479 U.S. at 167-69, 107 S.Ct. at 522.

Overreaching has been found and condemned where the police exploit an accused's reduced mental state. Lee v. State, 700 P.2d 1017 (Okl.Cr.1985); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). However, no evidence of exploitation or overreaching is present in the record before us. We find the trial court did not err by finding Appellant's confession to be knowing and voluntary, and thus admissible. ¹

Appellant continues the challenge to admission of his confession by arguing his waiver of the right to silence is invalid due to his consumption of alcohol and his low intelligence. He contends he was not aware of "the nature of the right being abandoned or the consequences of the decision to abandon it". We look to the totality of the record to determine this question. See Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

As we have explained, the appellant used the opportunity to talk to the police to present his theory of defense: that David Harrod committed the murder. His elaborate fabrication indicates he was well aware of the consequences of talking to the police. Under the totality of these circumstances, we find the trial court correctly held the confession was knowing and voluntary and need not be suppressed.

Appellant filed a Motion in Limine to suppress introduction of his gym shoes into evidence. The size and tread of his shoes were a perfect match to footprints found in and around Mrs. Porter's home. The trial court overruled the Motion finding the officers had probable cause to seize the shoes, and the appellant consented to the seizure. Appellant argues on appeal the seizure was not voluntary and the mere existence of probable cause does not justify a warrantless seizure. The State proffers alternate grounds to support the warrantless seizure: inevitable discovery, and search incident to arrest.

This presents a very interesting question which requires a rather detailed understanding of the surrounding facts. An investigator at the crime scene called Sheriff Sisco to report a single set of footprints had been discovered in and around the Porter home. These footprints revealed the distinctive tread pattern of "Winner's Choice" gym shoes. After taking the call in another room, Sheriff Sisco returned to the appellant and said:

Sisco: Jerald let me see one of your shoes. Is those the shoes you had on last night?

Harjo: Huh-ah

Sisco: Just take it off. What kind of shoes did you have on last night?

Harjo: (inaudible) tennis shoes on.

Sisco: Where are they at?

Harjo: (inaudible)

Sisco: Up here Johnny Ray or down at Sasakwa?

Harjo: Yeah.

Sisco: Are they like these?

Harjo: No, huh-ah.

Sisco: What are they like?

Harjo: They're about, they are alot different from these right here.

Appellant then gave Sheriff Sisco his shoe.

The facts expose the weakness in the analysis of both parties. If, as the State suggests, the seizure of the appellant's shoe occurred...