Matthews v. State

• Decision Date: 08 January 1998
• Docket Number: No. F-95-687,F-95-687
• Citation: 953 P.2d 336,1998 OK CR 3
• Parties: 1998 OK CR 3 Jeffrey David MATTHEWS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 336

953 P.2d 336

1998 OK CR 3

Jeffrey David MATTHEWS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-95-687.

Court of Criminal Appeals of Oklahoma.

Jan. 8, 1998.

Jack Fisher, Edmond, for appellant at trial.

J. Tully McCoy, Purcell, for the State at trial.

Matthew D. Haire, Oklahoma Indigent Defense System, Norman, for appellant on appeal.

W.A. Drew Edmondson, Attorney General, William L. Humes, Assistant Attorney General, Oklahoma City, for appellee on appeal.

OPINION

STRUBHAR, Vice Presiding Judge:

¶1 Appellant, Jeffrey David Matthews, was charged with First Degree Murder (Count I), Assault and Battery With a Deadly Weapon (Count II), and Conspiracy to Commit a Felony (Count III), in the District Court of McClain County, Case No. CF-94-18. He was also charged in a separate Information with Unauthorized Use of a Motor Vehicle (Count IV), in the District Court of McClain County, Case No. CF-94-19. As to the First Degree Murder charge, the State filed a Bill of Particulars alleging four aggravating circumstances: (1) that Appellant created a great risk of death to more than one person, (2) that the murder was committed for the purpose of avoiding lawful arrest, (3) that the murder was committed while Appellant was serving a sentence of imprisonment, and (4) that Appellant constituted a continuing threat to society. Appellant filed a Motion for a Change of Venue which was granted. The above mentioned cases were consolidated and tried in the District Court of Cleveland County, Case No. CF-95-183, before the Honorable Tom A. Lucas. At the conclusion of the trial, the jury found Appellant guilty of all crimes charged. The jury assessed punishment at death on Count I ¹ and forty-five years imprisonment on each of Counts II, III and IV. The trial court sentenced Appellant in accordance with the jury's recommendation. It is from this Judgment and Sentence that Appellant has perfected his appeal to this Court. ²

FACTS

¶2 In the early morning hours of January 27, 1994, Minnie Short was awakened by a noise in the living room of her home located in a rural area east of Rosedale, Oklahoma. She thought that it was around 6:00 a.m. and decided to get up for the day. She got out of bed and went into the living room where she was attacked from behind by someone with a knife. As she struggled with her attacker he cut her throat. Her husband Earl came into the living room and was shot in the back of the head by another person. Earl fell to the floor beside Minnie. She was told to lie still and was asked several times where the money was hidden. After ransacking the house for almost two hours the two men left with approximately $500.00, a .32 caliber Smith & Wesson, and the Shorts' brown pickup. After the men were gone, Minnie Short dressed and went to the road to try to get help. A passing ambulance saw her and stopped. She told the paramedics that she had been cut and her husband had been shot. They bandaged the wound on her neck, which had stopped bleeding and was determined to be non life-threatening. The paramedics then went to the house where they determined that Earl Short was dead.

¶3 When the police talked with Minnie Short she could not describe her attacker or the man who shot her husband. She recalled, however, that her attacker wore a dark jacket with a large circular design and the other man wore tan loose-fitting clothes. She also remembered that the man who attacked her had made a telephone call from her kitchen shortly before they left. When the police traced this phone call they found that it had been made at 8:16 a.m. to Bill Guinn in Oklahoma City. Mr. Guinn confirmed that the call had been made by his nephew, Tracy Dyer, who had called to say that he would be late coming to work that morning because he was having trouble with his truck. At around 10:00 p.m. on January 27 the police went to Dyer's trailer where they found Tracy Dyer and his uncle, Harry Wayne Clary, who was visiting from Madill. Both Dyer and Clary were taken to the sheriff's office for questioning.

¶4 Although Dyer initially denied any involvement in the crime, he became more forthcoming when confronted with the telephone call which placed him in the Shorts' home. In his first statement Dyer said that he and Appellant had gone to the Shorts' house to look for money that they believed to be hidden there. Dyer blamed Appellant for the murder of Earl Short and the attack on Minnie Short but he admitted to looking for money. Dyer was arrested.

¶5 On January 28, 1994, a warrant was procured for Appellant's arrest. After his arrest on that same date, Appellant was interrogated by OSBI agents. A search warrant for Appellant's home was issued and executed soon after his arrest. Police seized a pair of brown coveralls, three $100.00 bills found in the freezer, some items of clothing and a prescription pill bottle for Xanax made out to Minnie Short found on a nightstand. The backyard was searched but nothing was found there. Later, in June of 1994, one of Appellant's neighbors found a .32 Smith & Wesson revolver buried in a field situated directly behind Appellant's house. This gun was identified as the gun taken from the Shorts' home by their attackers. The police went to the field with metal detectors and found another buried gun, a .45 Ruger pistol which was later determined to have been the gun used to kill Earl Short.

PROPOSITIONS

¶6 Although Appellant raised twenty-eight propositions of error in his Brief-in-Chief and Supplemental Brief, we address in this opinion only those propositions relating to the first stage of trial which require reversal and which raise errors to avoid on retrial.

¶7 Appellant was arrested in his home at approximately 2:30 a.m. on January 28, 1994. He filed a motion to quash the arrest and suppress all evidence obtained pursuant to it, claiming his arrest was illegal because the arrest warrant executed by the authorities was not based upon probable cause. A hearing was held on this motion in March of 1996. At this hearing it was established that at approximately 2:00 a.m. on January 28, 1994, OSBI Agent Dale Sparks went to the home of Judge Noah Ewing in order to secure a warrant for Appellant's arrest. Instead of taking an affidavit per se, Sparks showed Judge Ewing an Information charging Appellant with the crime of Unauthorized Use of a Motor Vehicle. ³ Judge Ewing testified at the suppression hearing that the Information was in an affidavit form. It thus served the dual purpose of being both an Information and probable cause affidavit. Judge Ewing testified that he placed Sparks under oath and asked him if the Information was true. Sparks responded that it was and elaborated to some degree on the facts stated therein. However, neither Judge Ewing nor Agent Sparks could remember or articulate any specific facts discussed other than those mentioned in the Information. Agent Sparks admitted at the hearing that the Information set forth no facts which would indicate why he believed Appellant had committed the crime alleged. Nor did Judge Ewing recall any other documents being presented to him by Sparks. Agent Sparks signed the Information as the affiant/complaining witness. Based upon the Information and what Agent Sparks told him under oath, Judge Ewing found probable cause and an arrest warrant was issued. At the close of the hearing on the motion to quash, the trial court denied Appellant's motion.

¶8 Appellant argues on appeal that this ruling was in error as there was no probable cause affidavit presented to Judge Ewing to support the issuance of the arrest warrant. This allegation while technically correct, is not so as a matter of practicality. As mentioned above, Judge Ewing testified that the Information presented to him served as an affidavit. It was couched in terms of an affidavit and sworn to by Agent Sparks, who acted as the affiant. There is nothing per se objectionable about the use of such a document to establish probable cause. Rather, the problem here, as Appellant also notes, is that there were no facts alleged in the Information indicating how Appellant was connected to the crime charged.

¶9 A similar situation was addressed by the United States Supreme Court in Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Whiteley arose when a county sheriff who was investigating the burglaries of certain business establishments, acting on a tip, signed a complaint charging the defendant and another with breaking and entering. ⁴ Based upon this complaint, the justice of the peace issued an arrest warrant. After the warrant was issued, the sheriff put out a state bulletin on the radio advising that an arrest warrant had been issued for these persons. In reliance upon this bulletin, a Laramie patrolman arrested Whiteley and his companion. Whiteley was tried for breaking and entering and evidence seized pursuant to his arrest was used against him at trial.

¶10 Whiteley claimed that his arrest was illegal and therefore, the evidence seized should have been suppressed. The Supreme Court first noted that "[t]he decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant." Id. 401 U.S. at 564, 91 S.Ct. at 1035. In Whiteley the parties had stipulated to the record which revealed that the arrest warrant was supported solely by the sheriff's complaint which consisted of nothing more than the conclusion that the individuals named had perpetrated the offense described. Although the actual basis for the Sheriff's conclusion was the informer's tip, that fact and all other operative facts were omitted from the complaint. Accordingly, the Court held "that document alone could not support the...