Lott v. State

• Citation: 586 P.2d 70
• Decision Date: 30 October 1978
• Docket Number: No. F-76-699,F-76-699
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Bennie George LOTT, Appellant, v. The STATE of Oklahoma, Appellee.

Page 70

586 P.2d 70

Bennie George LOTT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-76-699.

Court of Criminal Appeals of Oklahoma.

Oct. 30, 1978.

An appeal from the District Court, Oklahoma County; Dick S. Jones, judge.

Bennie George Lott, appellant, was convicted of the offense of Second Degree Murder; was sentenced to a term of from ten (10) years to life imprisonment, and appeals. AFFIRMED.

John T. Elliott, Public Defender, Bert A. Richard, Jr., Asst. Public Defender, for appellant.

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

OPINION

CORNISH, Judge:

Appellant, Bennie George Lott, hereinafter referred to as the defendant, brings this appeal following a jury trial and conviction for Second Degree Murder in the Oklahoma County District Court, in the death of a railway employee, Raymond Davidson. Punishment was assessed at a mandatory term of ten (10) years to life imprisonment. Defendant was conjointly charged with co-defendant Gary Wayne Baker, and the cases were severed for trial.

The facts are that defendant and an accomplice, Gary Wayne Baker, ran out of gas in the early morning hours of August 5, 1975, and asked Davidson, who was repairing a malfunctioning signal light, for assistance. Upon his refusal, Davidson was hit in the head with a hammer and shot.

Subsequent investigation determined the railway truck driven by Davidson was missing from the crime scene, and an abandoned car, later determined to belong to the defendant, was found about 75 yards from the body. Later, the railway truck was found abandoned in Moore, Oklahoma.

Defendant was arrested while driving in south Oklahoma City about 5:00 p. m. on August 5 and was read the Miranda warnings. The police searched the car and found a .25 caliber pistol on the front floorboard of the passenger side. Ballistics tests showed that Davidson was killed by a bullet fired from this weapon.

Defendant was twice questioned and made statements to the police. The first interview took place at 4:00 p. m. on August 6, when defendant was again advised of his Miranda rights in detail but made only exculpatory statements. Prior to the second interview at 6:00 p. m. of the same day, Detective Thompson again advised the defendant that he still "had his rights," and the defendant acknowledged he understood. Thus, there was compliance with the directives of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When asked about the aforementioned crime, defendant confessed and related his participation therein.

The first assignment of error is that the trial court improperly admitted the defendant's oral confession at trial. Defendant relies on Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), in which the United States Supreme Court reversed a conviction because the police repeatedly denied the suspect's request to consult with counsel and intentionally and knowingly refused counsel an opportunity to see his client during the course of the entire interrogation. The United States Supreme Court held the accused had been denied assistance of counsel in violation of the Sixth Amendment, as made obligatory upon the states by the Fourteenth Amendment, and that no incriminating statements elicited during the interrogation could therefore be used against the accused at trial.

We find Escobedo, supra, distinguishable from the case at bar. Here, the evidence is conflicting as to whether the investigating officers knowingly refused counsel an opportunity to see his client. The State's evidence shows Detective Blair was not aware of the presence of defense counsel prior to or during the second interview. Nor was defense counsel ultimately denied the right to see his client once his presence was made known to the investigating officers. Furthermore, unlike the accused in Escobedo, supra, the defendant did not request to see an attorney, even though he was advised of his right to counsel.

At best, defense counsel's testimony shows he asked to see defendant but was told by a police sergeant, whom he failed to subpoena at trial, that defendant was being interviewed but he did not know where. Furthermore, defense counsel testified he did not know when defendant gave the incriminating statements and admitted defendant could have made the statements even before he arrived.

Since the defendant's motion to suppress the confession because of a denial of the right to counsel revolved around a factual question, determined adversely to the defendant by the trial court, it will not be disturbed on appeal where supported by sufficient evidence that the statement was voluntarily given. Warren v. State, Okl.Cr., 495 P.2d 837 (1972). We are of the opinion that there is sufficient evidence to support the ruling of the trial court in the instant case. We also observe that the issue of voluntariness was presented to the jury by adequate instructions, and the jury by its verdict found the admissions to have been voluntary. Therefore, we find the first assignment of error to be without merit.

The second assignment of error is that the trial court abused its discretion in allowing testimony by a State's witness, Detective Bob Thompson, regarding the defendant's pretrial silence. The transcript reflects that at the 4:00 p. m. questioning on August 6, defendant made several statements. He admitted his presence near the crime scene, his abandonment of the vehicle, and the means by which he left the scene. The following testimony was then elicited from Detective Thompson, which defendant contends is violative of his Fifth Amendment right to remain silent:

"A. (By Detective Thompson) And I asked him if he was involved in this homicide and he denied it. I take that back. He did not deny it or confirm it.

"Q. What did he do when you said

"MR. STUBBS: We object to that statement, Your Honor.

"THE COURT: What was the question?

"Q. (By Mr. Pierce) What did he do when you asked him that question?

"THE COURT: Objection's overruled.

"THE WITNESS: He just wouldn't look at me or answer me."

Defendant relies on Buchanan v. State, Okl.Cr., 523 P.2d 1134 (1974), to support his position that it was improper to use defendant's pretrial silence against him and to show that when asked an inculpatory question, he refused to answer. We note that the rule in Buchanan v. State, supra, was expanded in Burroughs v. State, Okl.Cr., 528 P.2d 714 (1974), and applied most recently in Roberts v. State, Okl.Cr., 568 P.2d 336 (1977),...