Lumpkin v. State, F-83-181

• Decision Date: 18 June 1984
• Docket Number: No. F-83-181,F-83-181
• Citation: 683 P.2d 985
• Parties: Norma Jane LUMPKIN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 985

683 P.2d 985

Norma Jane LUMPKIN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-83-181.

Court of Criminal Appeals of Oklahoma.

June 18, 1984.

An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.

Norma Jane Lumpkin, appellant, was convicted in Tulsa County District Court, Case No. CRF-81-1315, of Murder in the First Degree and sentenced to life imprisonment. Judgment and sentence AFFIRMED.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Terry J. Jenks, Legal Intern, Oklahoma City, for appellee.

OPINION

PER CURIAM:

Norma Jane Lumpkin was charged with Murder in the First Degree for the killing of her husband, Gilbert Lumpkin. She was tried by a jury in Tulsa County District Court; and upon her conviction, her punishment was assessed as life imprisonment.

In the morning of April 7, 1981, the appellant's husband was beaten to death with a blunt object which the State theorized to be a baseball bat found in the Lumpkin residence.

It was normal for the decedent to carpool to work with his neighbor, Chester Schaeffer, who worked for the same company as decedent. Mr. Schaeffer testified that decedent had told him the day before the killing he was filing for a divorce from appellant, and that the two were experiencing considerable marital difficulties. At approximately 5:35 a.m. April 7, 1981, he saw appellant trying to push start the Lumpkin's Datsun. Next, he saw a different neighbor, Mark Lewis, come around the north side of the Lumpkin trailer home. At 6:30 a.m., Mrs. Lumpkin called Mr. Schaeffer's wife and said her husband was going in late to work as he had to take care of some things.

Once at work, Mr. Schaeffer received several phone calls from his wife and from his daughter, whose home adjoined the Schaeffers'. Mr. Schaeffer called the Tulsa County Sheriff's Office telling them that things were not right at the Lumpkin residence. Deputy Bloss went to the Lumpkin trailer and asked to speak to the decedent. He was informed by appellant that Mr. Lumpkin had gone fishing and she did not know when he'd be back.

Mr. Schaeffer again called the Sheriff's Office to inform them that his daughter had seen appellant load something into the trunk of appellant's blue Pontiac, which appeared to be a body. As Deputy Bloss drove to the Lumpkin residence, he passed Mark Lewis traveling in the opposite direction driving the Lumpkin truck, pulling their boat and trailer. He then saw appellant driving the blue Pontiac at an excessive rate of speed. He turned around and stopped appellant by turning on his overhead lights. Appellant approached his vehicle and acknowledged her high rate of speed. He asked her to come into his vehicle, which she did. He asked if she and decedent were having marital problems. She said they were. He then told her he had received several calls from her neighbors and that they had seen her loading something heavy and bundlesome into her trunk. She said it was just bed clothes. When Deputy Bloss asked if she'd mind if he took a look, she retrieved the trunk key from the ignition. About the time the trunk was being opened, she reportedly said "I guess I've been had." Seeing the body of decedent, Deputy Bloss put appellant under arrest.

Appellant first assigns as error the trial court's refusal to suppress evidence gained by reason of her assertedly illegal arrest. She claims that Deputy Bloss stopped her for speeding, and that this was a mere subterfuge as he was not qualified to, nor did he attempt to cite her for speeding. We find that apart from his stated reason for stopping her, that being excessive speed, that he had sufficient information to warrant the investigative stop.

Appellant relies upon our recent opinion in Revels v. State, 666 P.2d 1298 (Okl.Cr.1983), to say that the facts known to Deputy Bloss did not justify an investigative stop of appellant. In Revels, the defendant simply exited the office of a used car lot late in the evening. We held that the officer was not justified in making an investigative stop without specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion [citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]. The test applied to determine whether a stop is reasonable is:

[W]ould the facts available to the officer at the moment of seizure ... 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?

392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Deputy Bloss had received several calls to investigate the suspicious conditions prevailing at the Lumpkin household. His information was based on the neighbors' observations, but they would appear to be reliable sources. He had been informed that the Lumpkins were experiencing marital problems, including a potential divorce. He was also informed that appellant curiously loaded what appeared to be a body into the trunk of her vehicle. When he then observed appellant driving her vehicle at an excessive rate of speed just behind the Lumpkins' truck and boat which was being driven by Mark Lewis, he was justified in detaining appellant for investigative purposes. Probable cause to arrest her was not required. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); McAlpine v. State, 604 P.2d 1258 (Okl.Cr.1980); Woodruff v. State, 582 P.2d 1330 (Okl.Cr.1978).

We view the search as consensual, and not conducted pursuant to an illegal arrest as contended by appellant. McAlpine and Woodruff, supra. The evidence obtained was necessarily admissible at trial, and this assignment must fail.

Next, appellant claims her consent to Deputy Bloss' search of her trunk was not shown to have been voluntarily given by clear and convincing evidence. The test of voluntariness is that it is to be judged from the "totality of the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The State has the burden to prove the consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

As we previously stated, we believe the search was consensual and not the product of duress or coercion. Her behavior gave no hint of an...