Hines v. State

• Decision Date: 05 July 1984
• Docket Number: No. F-82-639,F-82-639
• Citation: 684 P.2d 1202
• Parties: David Lee HINES, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1202

684 P.2d 1202

David Lee HINES, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-82-639.

Court of Criminal Appeals of Oklahoma.

July 5, 1984.

An Appeal from the District Court of Washington County; James H. Laughlin, District Judge.

David Lee Hines, appellant, was convicted of Feloniously Controlling Firearms. The trial court sentenced the appellant to six (6) years' imprisonment and he appeals. Judgment is AFFIRMED and the sentence is MODIFIED to four (4) years' imprisonment.

Larry A. Gullekson, Frasier, Frasier & Gullekson, Tulsa, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

The appellant, David Lee Hines, was convicted of Feloniously Controlling Firearms, pursuant to 21 O.S.1981, § 1283, in the District Court of Washington County, Case No. CRF-81-354. Punishment was set at six (6) years' imprisonment.

Based on information that the appellant might have possession of a shotgun allegedly used in a murder, the Sheriff's department in Washington County obtained a warrant to search the appellant's residence and pickup. Between 7:00 P.M. and 7:30 P.M. on November 25, 1981, Washington County Sheriff's Department investigator Ron Revard, Sheriff Glenn Codding and a probation officer arrived at the appellant's house to serve the warrant. The object of the warrant was not found during the search; however, investigator Revard did observe a fully loaded .44 magnum revolver in a holster in the master bedroom. Upon seizing the weapon, Revard placed the appellant under arrest for feloniously possessing a firearm as he knew of the appellant's prior felony convictions. Sheriff Codding then advised the appellant of his Miranda rights. Two other pistols were also discovered in a dresser drawer located in the bedroom. The appellant stated, at the time, that the pistols belonged to a friend. At trial, the appellant testified that all three weapons belonged to his wife.

The appellant's first two assignments of error concern the validity of the search warrant. In his first assignment of error, the appellant contends that since the information contained within the affidavit supporting the search warrant was insufficient and stale, the trial court erred in failing to suppress the search warrant and all evidence obtained with that warrant. A careful review of the affidavit, however, reveals that sufficient information was given to support a finding of probable cause that the shotgun was located at the appellant's house and that the information was not so stale as to be unreliable. See Ellis v. State, 651 P.2d 1057 (Okl.Cr.1982); Bishop v. State, 605 P.2d 260 (Okl.Cr.1979).

The appellant also alleges that the affidavit contained false statements necessary to establish probable cause and, therefore, the search warrant should have been voided and the fruits of the search excluded. The record, however, reveals that the affiant put forth information which he had appropriately accepted as being true. Since the appellant failed to establish by a preponderance of the evidence that the affiant knowingly and intentionally, or in reckless disregard for the truth, made a false statement in the affidavit, this assignment of error is without merit. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

In his second assignment of error, the appellant argues that the trial court's failure to suppress the evidence obtained under the search warrant resulted in further error. The appellant contends that even if the warrant were valid, the search and seizure exceeded the authority of the warrant. As the warrant clearly authorized the officers to look for ammunition as well as the shotgun, the officers did not exceed the warrant's authority. Thus, there was no error.

The appellant further argues that the officers' testimony regarding oral statements made by the appellant at the time of the arrest should also have been suppressed. Since the warrant was valid, neither the physical evidence nor the oral evidence can be suppressed as tainted fruits of a defective warrant. See Gragg v. State, 66 Okl.Cr. 200, 90 P.2d 680 (1939). Furthermore, the statements were volunteered by the appellant after receiving a Miranda warning. Thus, the trial court did not err in allowing the officers to testify. See Davis v. State, 524 P.2d 46 (Okl.Cr.1974).

In his third assignment of error, the appellant asserts that the trial court erred by refusing to allow a bifurcated proceeding. Although a two-stage proceeding is generally required in a trial for controlling a firearm after having been convicted of a felony, we held in Marr v. State, 513 P.2d 324 (Okl.Cr.1973) that there is an exception to the rule. When the acts of the accused constitute no crime except by virtue of the fact that he has previously been convicted of a felony, the trial court cannot bifurcate the trial, asking the jury to find, in the first stage, the accused guilty of an act which is not in itself a crime. When the previous conviction of a felony is a necessary element of the crime charged, it should be pleaded and proved during the State's case in chief in a one-stage proceeding. In the instant case, a one-stage trial was mandated...