Pickens v. State
Decision Date | 24 January 2001 |
Docket Number | No. F98-693.,F98-693. |
Citation | 2001 OK CR 3,19 P.3d 866 |
Parties | Darrin Lynn PICKENS, Appellant, v. STATE of Oklahoma, Appellee. |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Joe Robertson, Robert Stubblefield, Capital Trial Division, Indigent Defense System, Norman, OK, Attorneys For Defendant at trial.
Don I. Nelson, Assistant District Attorney, Creek County Courthouse, Sapulpa, OK, Attorney for the State at trial.
William H. Luker, Capital Direct Appeals, Indigent Defense System, Norman, OK, Attorney for Appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
¶ 1 Darrin Lynn Pickens was tried by jury in Creek County District Court, Case No. CF 90-66, before the Honorable Donald Thompson, District Judge, and convicted of Murder in the First Degree while in the commission of Robbery with a Dangerous Weapon, in violation of 21 O.S.Supp.1989, § 701.7 (Count 1) and Feloniously Carrying a Firearm, in violation of 21 O.S.Supp.1989, § 1283 (Count 2). The jury found the existence of three aggravating circumstances and set punishment at death on the murder conviction and at ten years imprisonment on Count 2.1 The trial court sentenced accordingly. From the Judgment and Sentences imposed, Appellant perfected this appeal.2 Appellant raises fifteen propositions of error.3 ¶ 2 In the early morning of February 4, 1990, Pickens robbed the Mr. Quick 21 convenience store in Sapulpa. He shot the store clerk, Tommy Lee Hayes, four times. A customer found Hayes' body between 2:00 and 3:00 a.m. Hayes died from two of the gunshot wounds to the chest and abdomen. Three .38 caliber unjacketed lead bullets were found at the scene, and two more were recovered from Hayes' body. The store manager determined $180.33 was missing, and the last sale shown on the cash register occurred at 2:06 a.m.
¶ 3 Pickens was arrested in Tulsa on February 9, 1990 on unrelated charges.4 Tulsa police officers found a .38 caliber F.I.E. Titan Tiger Six Shot revolver in his car. At the time of his arrest, Pickens asked officers if he was being arrested for the Creek County crimes. Ballistics tests connected the revolver found in Appellant's car to the Tulsa crimes but did not positively identify it as the weapon used in the Sapulpa robbery/murder. However, on March 9, 1990, Pickens confessed to the crimes when he was interviewed on the Sapulpa charges.
¶ 4 In Proposition I, Pickens claims his confession to the robbery and homicide was improperly admitted into evidence because it was the fruit of an illegal arrest based upon a lack of probable cause for issuance of the arrest warrant. Pickens moved to suppress all evidence obtained as a result of his arrest, alleging the averments in the arrest warrant contained misleading and incorrect information about the ballistics tests which were either intentionally false or involved omissions made in reckless disregard for the truth. The motion was overruled at preliminary hearing. (O.R. 495-496, 504) An evidentiary hearing was held on Pickens' post-arraignment motion to suppress and was overruled prior to trial.5 (O.R.651)
¶ 5 Where a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by an affiant in a warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).
In the event that at the hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
Id.; see also Gregg v. State, 1992 OK CR 82, ¶ 19, 844 P.2d 867, 875
.
He knew at the time he prepared the affidavit that the ballistics comparison of the projectiles from one of the Tulsa cases was a positive match to the gun found in Appellant's car. At the evidentiary hearing, he admitted he knew the projectiles recovered from the Sapulpa crime scene would be difficult to exactly match because they were mashed and mangled and were not jacketed bullets and, accordingly, said "similarities" rather than "exact weapon" and "exact bullet."
¶ 8 We have reviewed Elliott's testimony and the affidavit and find Appellant has not established by a preponderance of the evidence that Elliott's statements were made in reckless disregard of the truth or with an intent to mislead. In the affidavit, Elliott did not say the similarities were that the projectiles all had six lands, six grooves and a right hand twist; nor did he say that the results showed an exact match. At most, any ambiguity in Elliott's statements concerning the similarities noted on the projectiles arose from his own unfamiliarity with ballistics testing in general and not from an intent to willfully deceive or out of reckless disregard for the truth.
citing Stewart v. Donges, 915 F.2d 572, 582, n. 13 (10th Cir.1990). In either of these situations, we believe the magistrate was presented with facts sufficient to justify issuance of the warrant for Pickens' arrest.
¶ 10 "The existence of probable cause is a common sense standard requiring facts sufficient to warrant a man of reasonable caution in the belief that an offense has or is being committed." Mollett v. State, 1997 OK CR 28, ¶ 14, 939 P.2d 1, 7, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998), citing United States v. Wicks, 995 F.2d 964, 972 (10th Cir.1993)
. Here, Elliott's averments setting forth the similarities of the offenses committed by Pickens in Tulsa County within a matter of days from the Sapulpa homicide/robbery, the use of the same caliber weapon in those robberies/shootings, and that Pickens robbed a convenience store in the exact same location years earlier were sufficient to establish probable cause for Pickens' arrest. Even if Elliott had stated the results of the ballistics tests did not reveal a positive match to the exclusion of all other .38 caliber weapons, we believe such information would not have vitiated probable cause.
¶ 11 On review, this Court will determine whether the magistrate had a substantial basis for concluding probable cause existed to believe the defendant committed the crime, looking at the totality of the circumstances contained in the affidavit supporting the warrant. Hooper v. State, 1997 OK CR 64, ¶ 7, 947 P.2d 1090, 1097, cert....
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