Holliday v. State, F-85-544

Decision Date20 May 1988
Docket NumberNo. F-85-544,F-85-544
Citation755 P.2d 124,1988 OK CR 105
PartiesDaniel D. HOLLIDAY, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Daniel D. Holliday, appellant, was convicted in the District Court of Comanche County, Case No. CRF-84-518, of Accessory After the Fact to Second Degree Burglary of an Automobile. He received a sentence to "Incarceration" for an unspecified term pursuant to the Nonviolent Intermediate Offender's Act, and he appeals. AFFIRMED, but REMANDED for resentencing in a manner not inconsistent with this opinion.

Terry J. Hull, Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Daniel D. Holliday, was convicted in the District Court of Comanche County Case No. CRF-84-518 of the crime of Second Degree Burglary of an Automobile as an Accessory after the fact in violation of 21 O.S.1981, § 1435. Pursuant to the Nonviolent Intermediate Offenders Act, 22 O.S.Supp.1986, § 995 et seq., he was sentenced to an unspecified term of incarceration. Appellant now appeals both the judgment and sentence.

At approximately 4:00 p.m. on the afternoon of October 29, 1984, an employee of a Lawton grocery store who was leaving for his dinner break caught the appellant's co-defendant, Ron Darling, in the act of Burglarizing his pickup. The employee wrestled with Darling in an effort to subdue him. Darling escaped by hitting the pickup owner over the head with a stereo speaker he had taken from the pickup.

Responding to the owner's cries for assistance, several other people gave chase as Darling ran away. Darling was followed by at least four people as he ran behind the neighboring houses, jumped fences and ran down alleyways, ending up in an area behind the grocery store where the appellant was waiting in his car.

One of Darlings pursuers saw him get into the appellant's car. Another pursuer, who had circled around the house behind the store and was coming from the opposite direction, saw the appellant's car start up and begin to drive away. The last witness testified that the car slowed and stopped briefly in response to his signal to do so. The driver, who was later identified as the appellant, rolled the heavily tinted window down slightly to ask what was going on. The witness, who realized his potential vulnerability at that point, then lied to the appellant, saying they were chasing a black man and allowed the appellant to leave. Still another witness saw the appellant's car leave the alley and enter the street. All witnesses who testified were able to positively identify the appellant, his car, or both.

The appellant dropped Darling off a short time after they left the alley. Later that day, while the appellant was driving in his car nearby with another friend, a police officer who recognized the appellant's license tag number pulled the pair over. He briefly detained them while other officers brought an eyewitness over for identification. Because the witness could not identify either as the person who burglarized the pickup, the appellant and his friend were allowed to leave. The appellant was not arrested until three days later.

As his first assignment of error, the appellant argues that his statement was obtained as a result of an unlawful warrantless arrest. In support of this argument, the appellant directs our attention to the fact that no copy of the alleged warrant appears in the record, despite the appellant's designation of "all other papers filed" in the case.

The settled law is that a suspect may not be apprehended, detained, and forced to go with the police to another location absent a warrant or probable cause. See Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). In the past, this Court has stated quite explicitly that failure to raise this issue prior to entering a plea waives its consideration for appellate review. See Rushing v. State, 676 P.2d 842, 849 (Okl.Cr.1984); Raymer v. City of Tulsa, 595 P.2d 810 (Okl.Cr.1979); Stone v. State, 461 P.2d 962 (Okl.Cr.1969). Therefore, if there was a question regarding the legality of appellant's arrest, any alleged error has been waived.

Next, the appellant states that it was reversible error for the trial court to admit his purported post-arrest statement into evidence. Even if we assume that his arrest was illegal, we are not convinced that his statement given the next day was tainted.

The appellant maintained at trial, and again on appeal, that the alleged statement was neither accurate nor voluntary. Significantly, this is the only evidence presented on this question. The appellant did admit signing the statement, though he claims never to have read it even though the officer who took the statement testified otherwise.

Testimony was offered that the appellant had received his Miranda warnings before he indicated his willingness to give a statement. There is no evidence of official misconduct, and no intervening circumstances are disclosed in the record which would bring the reliability of the statement into question. Because these factors all weigh in favor of the State, we can only conclude that the statement was voluntary and that the appellant's second assignment of error, as well as his after-the-fact disclaimer, is without merit. See Brown v. Illinois, 422 U.S. 590 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Cooks v. State, 699 P.2d 653, 657 (Okl.Cr.1985); Williams v. State, 542 P.2d 554, 572 (Okl.Cr.1975).

The appellant's third assignment of error is that prosecutorial misconduct during closing argument denied him a fair trial. Specifically, appellant refers to a portion of the closing argument in which the prosecutor stressed the contradictions between appellant's statement and his testimony in court. The prosecutor concluded with the comments to the jury that, if the statement was true, appellant's in-court testimony "makes him a liar. If it makes him a liar, then I don't think you can believe anything that he's told you here today...."

The appellant cites Lewis v. State, 569 P.2d 486 (Okl.Cr.1977), for the proposition that calling a defendant a liar during closing arguments is fundamental error. The...

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4 cases
  • Phillips v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 15, 1999
    ...Clayton v. State, 840 P.2d 18, 28 (Okl.Cr. 1992), cert. denied, 507 U.S. 1008, 113 S.Ct. 1655, 123 L.Ed.2d 275 (1993); Holliday v. State, 755 P.2d 124, 126 (Okl.Cr.1988). Consequently, we review only for plain s 40 Appellant was arrested the day after the murder, July 20, 1996, at his broth......
  • Clayton v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 24, 1992
    ...object to the legality of an arrest prior to entering a plea to the charges waives appellate review of the issue. Holliday v. State, 755 P.2d 124, 126 (Okl.Cr.1988); Carter v. State, 738 P.2d 562, 563 (Okl.Cr.1987). Consequently, we refuse to review this assignment of error Appellant's seco......
  • McCarty v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • November 6, 1998
    ...we find no error in the trial court's decision to restrict defense counsel from calling David Osborne a "liar". See Holliday v. State, 1988 OK CR 105, 755 P.2d 124, 126-127 ("It was only the prosecutor's choice of the word 'liar' that was unfortunate"). Proposition ten is ¶85 In his elevent......
  • Darks v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • February 12, 1998
    ...Clayton v. State, 840 P.2d 18, 28 (Okl.Cr.1992), cert. denied, 507 U.S. 1008, 113 S.Ct. 1655, 123 L.Ed.2d 275 (1993); Holliday v. State, 755 P.2d 124, 126 (Okl.Cr.1988); Carter v. State, 738 P.2d 562, 563 (Okl.Cr.1987); Miles v. State, 416 P.2d 964, 965 (Okl.Cr.1966). Accordingly, this subp......

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