Morris v. State, F-75-554

• Decision Date: 06 December 1979
• Docket Number: No. F-75-554,F-75-554
• Citation: 603 P.2d 1157
• Parties: Richard Riley MORRIS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1157

603 P.2d 1157

Richard Riley MORRIS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-75-554.

Court of Criminal Appeals of Oklahoma.

Dec. 6, 1979.

An appeal from the District Court, Sequoyah County; Bill Ed Rogers, judge.

Richard Riley Morris, appellant, was convicted of the offense of Murder in the First Degree; was sentenced to death, and appeals. REVERSED and REMANDED for a new trial.

Harry G. Scoufos, III, Sallisaw, for appellant.

Larry Derryberry, Atty. Gen., Joe H. Enos, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Judge:

Richard Riley Morris was charged in Sequoyah County District Court Case No. CRF-75-55 with the crime of Murder in the First Degree, in violation of 21 O.S.Supp.1973, § 701.1(2). ¹ He was tried by a jury, found guilty, and sentenced to death.

The homicide occurred sometime between approximately 7:00 p. m. on April 4, 1975, and 7:45 a. m. on April 5. The defendant was taken into custody at approximately 10:30 a. m. on the morning of April 5, 1975, and at 12:40 p. m. the same day he signed a printed "waiver of rights" form. At the time he signed the waiver, he was interrogated by investigating officers. The results of this questioning were later incorporated into State's Exhibit No. 24, which was not dated, and which was never signed by the defendant.

Later the afternoon of April 5 the defendant was transported across the State line into Ft. Smith, Arkansas, where he was interrogated for three hours by Arkansas and Oklahoma police officials. He was then returned to the Sequoyah County jail, where he was interrogated again on April 6, 1975. On April 7, 1975, he was questioned again. On April 7, a relative of the defendant was present and urged the defendant to "go ahead and tell the truth."

The April 5, and the April 7 interrogations were taped and recorded in shorthand, but the April 6, interrogation was not recorded at all. The defense motion to produce the tapes of these interrogations was sustained, but all except the last portion of the recordings was erased as the reporter took another statement several days after the motion was sustained. However, the interrogations had been transcribed into one unsigned document, purporting to be the "statement of one Richard Morris."

The defendant, who was 18 at the time of trial, took the stand and indicated that he had reached the ninth grade before dropping out of school. He explained that he had a difficult time reading and studying and had made C's, D's and F's in school. He said he did not know what "waive" meant and that when he made the statements incorporated in State's Exhibit No. 24, he was scared and upset because Officer Gilliam had started talking about execution and because there were so many questions being asked at the same time. He denied killing Henry Ellis; denied ever having been to his house; denied helping anyone else kill him; and denied going to his house to rob him. Officer Gilliam denied threatening the defendant.

The defendant was brought before a magistrate without an attorney on April 8, 1975, when he was advised that one would be appointed for him. Arraignment was continued until April 10, when counsel was appointed.

Insofar as this conviction must be reversed, we need not discuss all the assignments of error raised by the defendant.

Title 21 O.S.Supp.1973, § 701.1, the statute under which the defendant was charged, was declared unconstitutional by the United States Supreme Court on July 6, 1976. Green v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Justus v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3216, 49 L.Ed.2d 1214 (1976); Lusty v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1214 (1976); Davis v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3217, 49 L.Ed.2d 1215 (1976); Rowbotham v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976); Williams v. Oklahoma, 428 U.S. 907, 96 S.Ct. 3218, 49 L.Ed.2d 1215 (1976). Therefore, the defendant contends that his conviction is void and the only punishment that can now be imposed is set out in 21 O.S.1971, § 9, the general felony punishment statute. However, this Court held in Riggs v. Branch, Okl.Cr., 554 P.2d 823 (1976), that life imprisonment was the proper penalty for conviction of first degree murder under the repealed statute.

The defendant next assigns as error the admission of various State's Exhibits. The defendant's jacket, boots and jeans either were removed from the defendant at the time of his arrest or taken from his home later.

The State concedes, that the items confiscated by means of the warrantless search of the defendant's residence were obtained in a " questionable" manner. The search was not only warrantless, it was conducted some hours after the defendant was arrested and was in violation of the Fourth Amendment to the United States Constitution and Art. II, § 30, of the Constitution of the State of Oklahoma.

The defendant complains that other pieces of real evidence were improperly admitted into evidence, as they were irrelevant, incompetent, and immaterial; had no causal connection to him; and were admitted only to bolster the State's case and surround the defendant with unjustified suspicion. The State concedes the immateriality of these exhibits, but argues that the defendant was not prejudiced by their admission, because they tended to be exculpatory rather than inculpatory in nature.

Here, the exhibits introduced did not place the defendant near the scene of the crime; nor did they in any way indicate the defendant's guilt. Therefore, we agree that the admission of these exhibits covered the defendant with an unwarranted veil of suspicion, and distracted the jury. For these reasons, they should have been excluded. See, Herren v. State, 75 Okl.Cr. 251, 130 P.2d 325 (1942), wherein we held that it was reversible error to have admitted evidence of merchants identifying articles found in defendant's brother's store as being stolen from them when there was no connection shown between the defendant and the stolen articles.

The defendant assigns as error the admission of the various " statements" and "waivers" procured from the defendant over the three day period of interrogation. The initial questioning took place in the custodially coercive atmosphere of the County courthouse. Under questioning by at least four police officers, the defendant stated only that he knew nothing about the homicide. Nevertheless, he was officially placed under full custodial arrest and transported to Ft. Smith, Arkansas, to take a polygraph test. The State contends that the trip to Arkansas and the defendant's conversation with his aunt's father were "intervening circumstances" sufficient to sever the taint from the confession ultimately obtained from the defendant. It is our opinion that the forced trip to Arkansas in the company of Oklahoma law enforcement officials compounded, rather than relieved, the illegality of the defendant's confession. Furthermore, the record indicates that the defendant's meeting with his aunt's father was arranged by the police, and was a secondary interrogative technique employed only after extensive questioning by police had failed to garner a statement.

After taking into account the abusive tactics and procedural irregularities hereinbefore discussed, the flagrancy of official misconduct in this case is apparent. Furthermore,...