Leigh v. State

• Decision Date: 21 December 1978
• Docket Number: No. F-77-201,F-77-201
• Citation: 587 P.2d 1379
• Parties: Quinion Ray LEIGH, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1379

587 P.2d 1379

Quinion Ray LEIGH, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-201.

Court of Criminal Appeals of Oklahoma.

Dec. 21, 1978.

An appeal from the District Court, Tulsa County; Raymond W. Graham, judge.

Quinion Ray Leigh, appellant, was convicted of the offense of Robbery With Firearms, After Former Conviction of a Felony; was sentenced to twenty-five (25) years' imprisonment, and appeals. REVERSED and REMANDED.

Clarke L. Randall, Appellate Public Defender, Tulsa County, for appellant.

Larry Derryberry, Atty. Gen., Givens L. Adams, Asst. Atty. Gen., for appellee.

OPINION

CORNISH, Judge:

Appellant, Quinion Ray Leigh, hereinafter referred to as defendant, was charged in the District Court, Tulsa County, Case No. CRF-76-87, with the crime of Robbery With Firearms, After Former Conviction of a Felony. He was convicted by a jury and sentenced to serve twenty-five (25) years in the Oklahoma State penitentiary. From said judgment and sentence, the defendant brings this appeal.

The State's evidence from the two prosecuting witnesses, David and Judith Hunsaker, established that at about 5:00 a. m. on January 13, 1976, two men forced their way into the Hunsaker apartment after inducing Mr. Hunsaker to open the door by identifying themselves as policemen. At the time they entered the apartment, they were wearing homemade ski masks over their faces with holes cut out for the eyes. One man was carrying a shotgun and the other man, later identified as the defendant, was carrying a pistol. After entering the apartment, the intruders lifted their masks, and David Hunsaker had about two minutes to look at them in the light coming from the outside security lights through the open venetian blind of the window. While the men were frisking Mr. Hunsaker, Mrs. Hunsaker came into the living room from the back bedroom and briefly glanced at the men before she turned her head and asked them to lower their masks, which they did. The men remained masked during the rest of the time they were in the apartment. Mr. Hunsaker was made to lie on the floor where he was watched by the defendant while the other man, identified as Wooten, sexually assaulted his wife in the back bedroom for approximately 15 to 20 minutes. During this time, Mr. Hunsaker testified, the defendant took his wallet from his pants pocket. He further testified that all he could see of the defendant at this time were his pants, shoes and the pistol. Following Wooten's sexual assault on Mrs. Hunsacker, the defendant sexually assaulted her for ten minutes while Wooten watched Mr. Hunsaker and then Wooten returned to assault Mrs. Hunsaker again for about 10 to 15 minutes. The lighting in the bedroom also came from the outside security lights through a window having a raised venetian blind. While Wooten was in the bedroom the second time, the police knocked upon the apartment door and the defendant exited the apartment through the master bedroom window and Wooten exited through the children's bedroom window. During the ensuing police investigation it was discovered that Mrs. Hunsaker's billfold was missing.

According to Sergeant Tucker, of the Tulsa Police Department, about 10 to 15 minutes after receiving the description of the men involved in the incident at the Hunsaker apartment, he saw the defendant, with whom he was familiar, standing on an exit ramp off the Broken Arrow Expressway about four or five blocks from the Hunsaker apartment. The Sergeant pulled over to question the defendant, and the defendant told Sergeant Tucker that he was hitchhiking to his mother's house and that his car had broken down in Wagoner, Oklahoma. Following a pat-down, which revealed no weapons, Sergeant Tucker told the defendant to get into his patrol unit. The sergeant told the defendant he would take him to his mother's house, but after he took him to the Hunsaker apartment because he fit the description, to which the defendant replied, "go ahead."

At the evidentiary hearing, in response to the question of whether he would have let the defendant leave after having stopped on the freeway, Sergeant Tucker replied that he would not.

Upon reaching the Hunsaker's apartment, the defendant was seated on the couch, and the Hunsakers subsequently identified the defendant as one of the men. From 10 to 30 minutes later the defendant was taken to the police station and booked.

Following an evidentiary hearing on the defendant's motion to quash the arrest, joined with a motion to suppress the evidence therefrom, and the in court identifications of both the Hunsakers, the trial court allowed all the evidence, including the in court identifications, to be admitted over the defendant's objection. Also admitted into evidence over the defendant's objections, were the wallet and billfold removed from the apartment that morning which the police recovered from the apartment manager's office of the Hunsaker's apartment complex on January 16. The manager had told the police that the wallets had been found by tenants' children, but the policemen who picked up the wallets never talked to the persons who found them.

Further evidence presented at trial over the defendant's objection was the testimony of an FBI agent as an expert witness on hair analysis. The police removed the sheets from Mrs. Hunsaker's bed and sent them, along with pubic hairs from the defendant and Wooten, to the FBI to determine if they matched. It was the agent's testimony that he had found one hair which could have come from the same source as the hair which was State's Exhibit No. 18, labeled as being the defendant's. He found none which could have come from Wooten. The agent further testified that hair analysis does not result in positive identification as do fingerprints, and that there could be other people with hair having the same characteristics as the defendant's.

Admitted into evidence for the defendant was defense exhibit number 2, a photo of the defendant taken on the afternoon of January 13, while being booked, and a stipulation as to the time recorded tape at the Tulsa Police Department on the morning of January 13, 1976, relating to the incident at the Hunsaker apartment. The pertinent parts of that exhibit are: 5:53 a. m. family fight or disturbance; 6:11 two armed men at Normandy Apartments; 6:23 white male red Ford Torino and used the name Bobby Townsend; 6:27 physical and clothing description as follows: two white males, one 6'2 , brown hair approximately 30 years old wearing Army fatigue jacket; second subject described as 6'1 , brown hair, approximately 30 years old; 6:30 (to Sergeant Tucker's unit) no wants or warrants on Quinion Leigh.

As his first assignment of error, the defendant argues that it was error for the trial court to allow the in court identification of the defendant by David and Judith Hunsaker. The defense contends that the initial arrest of the defendant by Sergeant Tucker was without probable cause, and being an invalid arrest, the subsequent show-up at the Hunsaker apartment and the in court identifications should have been suppressed as fruits of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The fact that an arrest did occur when Sergeant Tucker stopped on the freeway and told the defendant to get into his unit to be taken to the Normandy Apartments complex is admitted by the State in their brief. In an evidentiary hearing on the defendant's motion to quash the arrest and to suppress all evidence resulting therefrom, including the motion to suppress the in court identification as part of the evidence proceeding from the arrest, the trial court ruled that there was no probable cause. The trial court went on to rule that all the evidence was admissible on the basis of stop and frisk. The trial court, ruling that a show-up within a close proximity of time was permissible, allowed the in court identification.

At the evidentiary hearing, the trial court had presented before it Sergeant Tucker's testimony to the effect that on the morning of January 13, after leaving a restaurant, he heard three calls on his radio. The first call was a report of a disturbance, followed a few minutes later by a call reporting two armed men at the Normandy Apartments and a third call after that containing a general description of the men involved. He further testified that some 10 to 15 minutes following the description he saw the defendant standing on an exit ramp on the Broken Arrow Expressway. It was his testimony that he heard all of these calls while traveling at about 40 miles per hour in light traffic, without making any stops in a distance which was established as being one mile and eight or ten blocks. Obviously, the trial court, as does this Court, found it impossible to correlate the sergeant's testimony with that of the timed recordings, because it ruled that there was no probable cause. The sergeant's testimony would require the court to assume that a mile and eight to ten blocks at 40 miles per hour takes over half an hour to travel, since he stated he was in his car when he heard the 5:53 a. m. call and the description came at 6:27 a. m. However, at trial, the sergeant testified that he heard the disturbance call while in the restaurant and the call about the two armed men while in his car, from a distance of at most one mile and eight to ten blocks from where he stopped the defendant. This would mean it took as long as 16 minutes to travel the distance, assuming he saw the defendant at the same time he heard the description. But he said he had from ten to fifteen minutes after the description before seeing the defendant. The 6:23 a.m. call did not contain a description which would support a probable cause finding where it contained a description of a car and named a man other than the defendant. The sergeant, however, was unwavering in his testimony that the events occurred exactly as he described.

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