Myers v. State, F-80-810
| Decision Date | 30 November 1982 |
| Docket Number | No. F-80-810,F-80-810 |
| Parties | Lindon L. MYERS, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Lindon L. Myers, hereinafter referred to as the defendant, was charged, tried and convicted in the District Court of Comanche County, Case No. CRF-80-85, for the offense of Burglary in the Second Degree, After Former Conviction of a Felony, was sentenced to twenty (20) years' imprisonment, and he appeals.
On the night of February 9, 1980, a man later identified as the defendant was seen by police inside a building owned by Gibson's Meat Market. The officers ordered him outside and placed him under arrest. The owner of the building testified that all the doors and windows were shut and locked when he left.
Initially, the defendant asserts that the trial court erred in refusing to give instructions concerning a lesser included offense not amounting to burglary, covered by 21 O.S.1981, § 1438. This argument is based on the defendant's belief that the State failed to prove there was an actual breaking by him.
Testimony of the arresting officers revealed that there was more than one set of footprints in the snow near the door. There was evidence of scratch marks on the door, although the owner admitted that he had in the past pried the door open after occasionally forgetting his keys. However, the undisputed evidence is that the doors were closed at the end of the day, and that the defendant was later observed inside the building late at night near a desk with empty money bags and a screwdriver in his back pocket, and when ordered to do so he walked out of the door. Myers offered no explanation for his presence inside the building.
Although the evidence of breaking may have been circumstantial, we find that in light of the overwhelming evidence it was ample to support the verdict of the jury, with which we will not interfere. See, Smith v. State, 599 P.2d 413 (Okl.Cr.1977); and Beasley v. State, 635 P.2d 627 (Okl.Cr.1981). Furthermore, reasonable inferences drawn from circumstantial evidence need not exclude every hypothesis or negate any possibility other than guilt. Luker v. State, 552 P.2d 715 (Okl.Cr.1976). Accordingly, we dismiss this assignment of error as being without merit.
In his second assignment of error, the defendant asserts that the trial court erred in admitting evidence relating to his invocation of his right to remain silent. Specifically, the defendant points to the following exchange between the prosecutor and the arresting officer:
Q. You can't tell that. You can tell the jury anything that he said after you gave him his Miranda rights.
A. (Negative nod.) Mr. Myers didn't really say anything other than personal information that we needed to fill out the paper work on.
The defendant claims the above testimony "unmistakably" referred to the defendant invoking his Miranda rights.
This Court has consistently held that a person has the right to remain silent when arrested and that such silence cannot be used against him to establish the commission of a crime. However, even an officer's statement that the defendant "wished to remain silent" in response to his Miranda rights has been held not so severe as to require reversal. See, Burroughs v. State, 528 P.2d 714 (Okl.Cr.1974). While we do not condone questioning which may intrude on a defendant's right to remain silent, we do not find that the statement in the present case requires a reversal. Furthermore, such an error, if any, must be preserved by both an objection and motion for mistrial. Runnels v. State, 562 P.2d 932 (Okl.Cr.1977). The defendant has not properly preserved the issue for review on appeal. Accordingly, this assignment of error is dismissed.
Third, the defendant asserts the trial court erred by overruling his objection to the endorsement of additional witnesses. Specifically, he objects to the fact that the State, after the preliminary hearing and approximately two weeks before trial, was allowed to endorse two additional witnesses without notice to him. The defendant claims such an act violates 22 O.S.1981, § 303, the intent of which, he contends, is to...
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Martin v. State
...The statement in question drew no objection at trial and is therefore waived on appeal absent fundamental error. Myers v. State, 654 P.2d 1073, 1075 (Okl.Cr.1982); Boomershine v. State, 634 P.2d 1318, 1319 (Okl.Cr.1981). The remark surfaced during examination of one of the State's witnesses......
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Moss v. State, F-91-347
...I don't think it was a surprise or a so-called surprise that the State would call her ... This Court held in Myers v. State, 654 P.2d 1073 (Okl.Cr.1982), that if a defense counsel is surprised by such an endorsement and needs more time for preparation, he should withdraw his announcement of......
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Fabian v. State, M-83-603
...does not show an objection or a request for a continuance. It does show appellant announced ready and the trial proceeded. Myers v. State, 654 P.2d 1073 (Okl.Cr.1982). This was a proper exercise of judicial discretion particularly in light of appellant's failure to adequately preserve his o......
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Fitchen v. State, F-84-486
...made any response to the advising of his miranda rights, "No, he did not." This Court denied a similar complaint in Myers v. State, 654 P.2d 1073 (Okl.Cr.1982). This Court This Court has consistently held that a person has the right to remain silent when arrested and that such silence canno......