Payne v. State

• Decision Date: 05 October 1987
• Docket Number: No. F-85-102,F-85-102
• Citation: 744 P.2d 196
• Parties: Robert PAYNE, Jerry Payne, and Jeff Payne, Appellants, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 196

744 P.2d 196

Robert PAYNE, Jerry Payne, and Jeff Payne, Appellants, v. STATE of Oklahoma, Appellee.

No. F-85-102.

Court of Criminal Appeals of Oklahoma.

Oct. 5, 1987.

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

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Timothy W. Ogilvie, Legal Intern, Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellants, Robert Payne and Jerry Payne, were convicted in the District Court of Adair County, Case No. CRF-81-31, of Knowingly Concealing Stolen Property, and were sentenced to four and three years' imprisonment, respectively. They appeal raising four assignments of error.

The appellant, Robert Payne, raises one assignment of error separately from Jerry Payne, and Jeff Payne, who was convicted in the same trial of the same crime, and was sentenced to 180 days' imprisonment, raises a single assignment of error, separate from those of Robert and Jerry Payne.

Briefly stated, the facts are that on May 2, 1981, law enforcement officers executed a search warrant on the farm of Robert Payne at Watts, Oklahoma and recovered ten of fourteen calves taken from the University of Arkansas Beef Farm at Savoy, Arkansas. The remaining four calves were discovered at a sale barn in Iowa. All fourteen calves had tattoos in their ears for identification. During the search the officers seized various other items, including a Kubota tractor, a logsplitter, and wire panels. At trial evidence was introduced to show that these items were also stolen.

The defense presented evidence to show that the calves belonged to Danny Hudson, son-in-law of Robert Payne, who brought the cattle to the Payne farm. Jerry Payne testified that he purchased four of the calves from Hudson to sell in Iowa, but that he did not know that they were stolen.

In their first assignment of error the appellants, Robert and Jerry Payne, allege that the search which resulted in the recovery of the stolen property was illegal. The appellants urge five subpropositions. First, they argue that the affidavit for the search wararant was deficient because it failed to show that either the affiant or the confidential informant had personal knowledge that property located on the Payne farm was stolen. The affidavit stated that a confidential informant who had proven reliable in the past had given the affiant the location of stolen calves belonging to the University of Arkansas, and a stolen horse trailer belonging to Charles H. Agee. The affidavit stated that the informant had on three occasions within the previous week given the location of stolen property, and that each time the information had proven reliable. It further stated that from a public road adjoining the Payne farm, the affiant had observed cattle and a trailer which fit the description of the stolen property. The proper standard in determining the validity of an affidavit for a search warrant is to examine the whole affidavit under the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). When viewed as a whole, the facts in the affidavit pertaining to the reliability of the informant, along with the affiant's personal observation of the stolen goods, were sufficient to determine there was probable cause to believe that stolen property was located on the Payne farm, and to meet the Gates test.

The appellants urge in their second subproposition that the search warrant was invalid by authorizing a search of buildings in which they allege the named property could not be found. The appellants complain that the residence was searched after ten of the calves and the trailer had been located, and that the other four calves could not have been in the residence. They conclude that because the warrant allowed a search of the residence, the warrant became a blanket search warrant. However, an examination of the search warrant reveals that it described with specificity the property to be seized, and therefore was not general. "The fact that articles outside the scope of the warrant were seized does not convert it into a general warrant." Caffey v. State, 661 P.2d 897, 901 (Okl.Cr.1983). Furthermore, it does not justify excluding the property seized which was specifically described.

In their third subproposition, the appellants assert that since ten of the calves were discovered immediately upon the arrival of the officers, the search warrant was exhausted. While we agree that officers may not continue to search and seize evidence after having found the items listed in the search warrant, see Phelps v. State, 598 P.2d 254 (Okl.Cr.1979), we disagree with the appellants' assertion that the warrant was exhausted. The warrant authorized the search and seizure of fourteen head of cattle, of which only ten were found. Therefore, the warrant was not exhausted, and the officers were justified in extending their search for the remaining four cattle.

Their fourth subproposition argues that the trial judge erred in allowing the admission of evidence seized during the search of the Payne farm, but which was not named in the search warrant. The trial court found that the items were in plain view, and were therefore admissible. The appellants claim that when the police officers executed the warrant for the calves and trailer, they were actually looking for other specific items of stolen property as well. They further claim that the items that the officers seized were not immediately identifiable as being stolen. They conclude that the seizure of the additional items failed to meet the "inadvertent" and "immediately apparent" requirements of the plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Concerning the "inadvertent" standard, Coolidge states that the police may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain view doctrine only as a pretense. Texas v. Brown, 460 U.S. 730, 743, 103 S.Ct. 1535, 1544, 75 L.Ed.2d 502 (1983), quoting Coolidge, 403 U.S., at 470, 91 S.Ct., at 2040. While one may infer from the record that the police officers present during the search suspicioned that certain stolen property would be found on the Payne farm, the appellants do not refer to any portion of the record where there is testimony that the officers knew in advance that the property was located at the farm, or even had probable cause to believe it was there. The property seized and admitted into evidence was within plain view of the cattle when the cattle were seized, and the officers were not obligated to close their eyes when their suspicions were confirmed. An examination of the record shows that where the officers extended their search into areas where the missing cattle could not be discovered, the evidence seized in those locations was excluded.

Concerning the "immediately apparent" requirement of Coolidge, the record clearly shows that the officers knew that certain items had been stolen, that they had become familiar with the descriptions of those items, and recognized them when they executed the warrant to seize the cattle. Brown states that the decisions of the Supreme Court "have come to reflect the rule that if, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately." 460 U.S., at 739, 103 S.Ct. at 1542. Brown further states that a police officer need not "know" that a certain item is evidence of a crime in order to seize it, but need only have probable cause to believe that it may be useful as evidence of a crime. As the police officers acted properly, this assignment of error is without merit.

In their second assignment of error the appellants contend that their Sixth Amendment right to confront witnesses was denied when accusations against them were introduced, but the accuser refused to testify. Danny Hudson, Robert Payne's son-in-law, and Jerry Payne's brother-in-law, was brought from prison by the State to testify concerning statements which he had made in May, October, and November 1981, which implicated the Paynes in the theft of the cattle. However, when called to the stand, he invoked the Fifth Amendment, and even after being granted immunity, he refused to testify. Subsequently, the prosecutor used hypotheticals, apparently based upon Hudson's statements, to cross-examine Jerry Payne.

The first subproposition of the appellants is that Hudson should not have been put on the stand before the jury to invoke his Fifth Amendment rights. The record reveals that the prosecutor's examination of Hudson was very brief, and only included two questions. The prosecutor asked Hudson his name, and then if he knew Robert Payne. To the latter question, Hudson stated he was "going to stand on the Fifth Amendment." The Supreme Court of the United States articulated two principles on which calling a witness to the stand who then invokes his Fifth Amendment privilege may constitute reversible error: first, "prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege"; and second, when "in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant." Namet v. United States, 373 U.S. 179, 186-187, 83 S.Ct. 1151, 1155-56, 10 L.Ed.2d 278 (1963). Concerning the first principle, we find nothing in the record to show that the prosecutor attempted to use Hudson's silence to build the State's case, as we do not find his silence mentioned elsewhere. Concerning the second principle, given the circumstances of this case, we do not believe that Hudson's refusal to answer added any weight to the prosecution's case, and therefore we find no...