Nuckols v. State, No. F-83-153

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: BRETT; BUSSEY
• Citation: 690 P.2d 463
• Parties: Kenneth Franklin NUCKOLS, Appellant, v. The STATE of Oklahoma, Appellee.
• Decision Date: 19 October 1984
• Docket Number: No. F-83-153

Page 463

690 P.2d 463 Kenneth Franklin NUCKOLS, Appellant,
v.
The STATE of Oklahoma, Appellee. No. F-83-153. Court of Criminal Appeals of Oklahoma. Oct. 19, 1984.
Rehearing Denied Nov. 15, 1984.

Page 465

An appeal from the District Court, Pottawatomie County; Lloyd H. Henry, District Judge.

Kenneth Franklin Nuckols, appellant, was convicted of Murder in the First Degree, in the District Court of Pottawatomie County, in Case No. CRF-83-273, sentenced to death, and he appeals. Judgment and sentence is AFFIRMED.

E. Alvin Schay, Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Susan Brimer Agosta, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Kenneth Franklin Nuckols, the appellant herein, was charged, tried and convicted in the District Court of Pottawatomie County, Case No. CRF-82-273, for the offense of Murder in the First Degree. 21 O.S.1981, § 701.7(A). He was sentenced to death. We affirm the judgment and sentence.

Sometime in late July, 1982, the appellant and a friend, Greg Campbell, stopped on Interstate-40 east of Harrison, purportedly to give aid to a motorist. The motorist, Freddie Orville Howell, was having trouble with his car headlights, and Campbell repaired them.

Appellant and Campbell invited Howell to have a beer, and the three traveled in the Howell and Campbell autos to a nearby gas station. Eventually they drove to an area six miles west of Shawnee at County Road 114 and Highway 9A. They got out of the cars and began talking. When Howell stepped between Campbell and the appellant, the latter hit Howell in the head with a ball peen hammer obtained from the trunk of Campbell's car. Urged by Campbell to "keep hitting him", the appellant struck Howell three times with the hammer. Campbell took the hammer from appellant and joined him in hitting, kicking and stomping Howell. After taking Howell's money, the pair loaded his body into the backseat of his car. Appellant, driving Howell's car, followed Campbell to an area on Interstate-40 in Seminole County, where the auto was abandoned.

On August 1, 1982, Howell's partially decomposed body was found in the car. A subsequent autopsy revealed he died from multiple skull fractures, lacerations and injuries to the brain. He also suffered several fractured ribs, and injury to the genitals.

Page 466

I.

In his first assignment of error, the appellant contends two statements made by him regarding this case were obtained in an unconstitutional manner. He asserts the trial court erred in overruling his motion to suppress both statements.

On August 20, 1982, the appellant was taken into custody at about 11:00 p.m. by Pottawatomie County Sheriff Ruie Burks. He was read the so-called Miranda ¹ warnings and taken to the Pottawatomie County District Attorney's Office, where he was again read his rights and questioned about a homicide in Lincoln County.

At about 4:00 a.m. the following day, appellant confessed to the Lincoln County homicide. When appellant was asked about his involvement in the instant case, he asserted his right to a lawyer and all questioning ceased. Appellant was placed in a holding cell at the Pottawatomie County Jail.

That evening at about 10:00 p.m., the appellant asked to speak with Sheriff Burks concerning the Pottawatomie County case. After being read his Miranda warnings, he recounted his involvement in Howell's death. The following evening, again at his request and after a reading of Miranda warnings, he gave a more detailed statement to District Attorney's Investigator Robert Mayo.

The statement to Burks was audio-taped, and the second statement was recorded on video-tape. Both recordings were played to the jury at trial.

Appellant's constitutional attack is three-fold. First, he contends the statements regarding this case were the fruits of an unlawfully obtained confession to the Lincoln County murder, and thus were suppressible. Second, he contends the Pottawatomie County statements were obtained after he asserted his right to counsel. Third, he asserts the Pottawatomie County statements were obtained through coercive tactics by police. We reject all three contentions.

A.

Regarding appellant's first argument, it is clear "the exclusionary sanction applies to any 'fruits' of a constitutional violation--whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention." United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980). Were we to find the Lincoln County statement unconstitutional, the Pottawatomie County statements would be at least potentially unlawful. ²

However, we find no constitutional violation occurred regarding the Lincoln County confession. Appellant contends police reinstated interrogation, after he had requested that questioning cease. This was done, appellant contends, through the use of a false friend. The police disputed appellant's version of this weekend. We note that the facts relating to this issue are hotly disputed by the litigants. However, we have held when sufficient evidence exists in the record to support the trial court's ruling, that ruling will not be disturbed on appeal. Smith v. State, 674 P.2d 569 (Okl.Cr.1984). Because sufficient facts do emerge to support the trial court's ruling, we reject the appellant's argument.

B.

Appellant next asserts his request for an attorney before further interrogation was

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not honored by police, and the Pottawatomie County statements were thus improperly admitted.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court affirmed that once an accused has asserted his right to an attorney, he may not be subjected to further custodial interrogation. Id. at 485, 101 S.Ct. at 1885. Only when the suspect himself initiates subsequent interrogation is a waiver of the right to counsel possible. Id.

In this case, it is undisputed that after confessing to the Lincoln County homicide, the appellant refused to talk about the Pottawatomie County case, and asserted his right to counsel. It also is undisputed he was then immediately taken to the county jail and placed in a holding cell. Appellant testified at a hearing on his motion to suppress that Jailer Billy Ware thereafter expressed disbelief at appellant's predicament, urged him to confess, and finally inquired of appellant whether to call Sheriff Burks. Ware denied that he impelled appellant to confess or that he urged the appellant to call Burks. Although he admitted expressing surprise that appellant was in such a dilemma, he stated he had known appellant's family for some time and this was the basis for his comment. He also admitted engaging in small talk unrelated to the case.

We agree with Justice Powell in his concurring opinion in Edwards that our resolution of this issue focuses on two questions: "(i) was there in fact 'interrogation', see Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and (ii) did the police 'initiate' it." Edwards v. Arizona, supra, 451 U.S., at 490, 101 S.Ct. at 1887 (Powell, J. concurring). In short, did Ware's comments initiate a subsequent interrogation?

Our resolution of the factual dispute presented is of paramount importance to this question. Were we to agree with the appellant's version, we would hold that the interrogation was initiated by Jailer Ware. Agreement with the State's version would compel a contrary holding. However, the conflict in testimony was resolved by the trial court when it overruled the motion to suppress. In Lott v. State, 586 P.2d 70 (Okl.Cr.1978) we ruled that "[s]ince the defendant's motion to suppress the confession because of 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...." Id. at 72. Accord Smith v. State, supra. We believe that rule is applicable here, as sufficient evidence was presented to support the trial court's ruling.

Neither Ware's expression of disbelief at appellant's situation nor his discussion with appellant of collateral matters constituted a re-initiation of interrogation. In Rhode Island v. Innis, supra, the United States Supreme Court defined interrogation as "express questioning or its functional equivalent...." including "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are likely to elicit an incriminating response from the suspect." Id., 446 U.S., at 301, 100 S.Ct. at 1689-1690. We agree, again with Justice Powell, that "police do not impermissibly 'initiate' renewed interrogation by engaging in routine conversations with suspects about unrelated matters." Edwards v. Arizona, supra, 451 U.S., at 490, 101 S.Ct. at 1888 (Powell, J., concurring). Ware's conversations fit this category, and the appellant's claim of error is rejected.

C.

We now turn to appellant's argument that his statements were the product of coercion by police. He asserts that he was held incommunicado in a tiny holding cell, forcing him to involuntarily confess.

In determining the voluntariness of a confession, we have adopted the test articulated by the Supreme Court in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961):

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Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Id. at 602, 81 S.Ct. at 1879. We adopted this formulation in In Re Pate, 371 P.2d 500...