Ross v. State

Citation717 P.2d 117,1986 OK CR 49
Decision Date04 April 1986
Docket NumberNo. F-83-780,F-83-780
PartiesBobby Lynn ROSS, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BUSSEY, Judge:

The appellant, Bobby Lynn Ross, was convicted in the District Court of Roger Mills County, Case No. CRF-83-27, after a change of venue had been granted from Beckham County, Case No. CRF-83-2, of Murder in the First Degree, and Robbery with a Firearm, for which he received sentences of death, and ninety years' imprisonment, respectively. From these judgments and sentences, he appeals.

The facts are that about 1:50 a.m. on January 5, 1983, the night clerk at the Los Cuartos Inn located in Elk City, Oklahoma was robbed by two black men, one of whom was later identified as being the appellant. After the first man left, and before the appellant could leave, a police officer, Sargeant Steven Mahan, pulled up in his vehicle on a routine check and was shot three times in the head by the appellant. Officer Mahan was pronounced dead about three and a half hours later at El Reno Hospital. The vehicle in which the appellant and two other men were riding was stopped at the intersection of Interstate 40 and Highway 83 south of Clinton about twenty-five minutes after the shooting by two Clinton police officers who observed that that vehicle had an unsafe windshield and a defective taillight. The suspects were subsequently arrested.

As the first assignment of error, the appellant alleges that his initial arrest was predicated on an unwarranted stop and frisk and that therefore the evidence secured as a result of that arrest should be excluded. The facts show that about 2:22 a.m. the police dispatcher at the Elk City Police Department broadcasted the description of the two suspects of the Los Cuartos Inn robbery, including race, height, and clothing of each of the suspects, one dressed in gray, the other in black. The information was received by the Clinton Police Department, and as a result, Officers Lumpkin and Dover positioned their vehicle on Highway 183 overpass above Interstate 40. About 2:26 a.m. they observed a vehicle with a broken taillight and a cracked windshield come from the west on I-40 and turn north onto Highway 183. The officers stopped the vehicle.

The first issue is whether or not the stop of the vehicle was lawful. Title 47 O.S.1981, § 12-101 provides that the operation of an unsafe vehicle on any highway is a misdemeanor. The statutes further provide that a peace officer may, without a warrant, arrest a person for a public offense committed in his presence [22 O.S.Supp.1985, § 196(1) ]. Observation by Officer Lumpkin of a vehicle being operated on a state highway with a defective taillight and unsafe windshield certainly justified the stop of the vehicle.

The second issue is whether or not the officers could lawfully frisk the appellant. Officer Lumpkin stated that he recognized the driver and the passenger in the back seat, both of whom he knew to have carried firearms in the past. This circumstance, together with the facts that the driver behaved suspiciously, by placing his hands on the hood in the position for a frisk search without being instructed to do so, two of the men fit the description of the Elk City robbery suspects, and arrived in Clinton within the time it would take to drive from Elk City, leads to the conclusion that the officers reasonably inferred from specific and articulable facts that the intrusion (the frisking of the three occupants of the vehicle) was justified. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The third issue is whether or not the pistol seized from the appellant was properly admitted in his prosecution. We conclude that it was. At the time the weapon was seized, Officer Lumpkin had reasonable grounds to believe that the appellant was armed and dangerous, and it was necessary "to take swift measures to discover the true facts and neutralize the threat of harm if it materialized." Terry, 392 U.S. at 30, 88 S.Ct. at 1884.

The final issue is whether or not the confession was the fruit of an illegal arrest and therefore should have been excluded on those grounds. As we have found that the search was legal, we find that the arrest was also legal as it followed the discovery of a concealed weapon, which act is unlawful. (21 O.S.1981, § 1289.8). The confession which followed cannot be said to be the fruit of an illegal arrest.

We therefore conclude that this assignment of error is without merit.

As his second assignment of error, the appellant complains that the trial court improperly excluded three jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), who had reservations concerning the death penalty and failed to exclude a juror who would automatically vote for the death penalty if the appellant was found guilty.

Upon the issue of excluding jurors, the rule is clear that a prospective juror who is irrevocably committed, prior to trial, to vote against the death penalty may be properly excluded. Dutton v. State, 674 P.2d 1134 (Okl.Cr.1984). Prospective juror Webb was asked if she felt there were no circumstances under which the death penalty would be allowed, and she answered "That's correct." Prospective juror Stacher was asked by defense counsel if it was a fair statement that under no circumstances would she ever give the death penalty, and she responded, "That is a fair statement." Prospective juror Sanve was asked if in a case where the law and evidence warranted, he could without doing violence to his conscience, recommend the death penalty, and he stated, "I couldn't." Almost an identical question was asked in Koonce v. State, 456 P.2d 549, 555 (Okl.Cr.1969), modified, 408 U.S. 934, 92 S.Ct. 2845, 33 L.Ed.2d 748 (1972), of a prospective juror as that asked Sanve, and we found that the jury was correctly selected. The questioning of these three jurors reveals that they could not have agreed in a proper case to even consider a verdict imposing the death penalty, and therefore this contention is without merit. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

Upon the issue of failure to exclude a juror who would automatically vote for the death penalty, the facts show that one prospective juror stated twice that he would automatically vote for the death penalty if he found the defendant guilty of murder. Once a defendant has been found guilty, the duty of the jurors is to hear and determine evidence in aggravation and in mitigation, and to consider whether the evidence in aggravation outweighs the mitigating circumstances or whether the mitigating circumstances outweigh the aggravating circumstances. 21 O.S.1981, § 701.11. The failure of the trial court to remove a prospective juror who unequivocally states that he is unwilling to follow the law during the penalty phase by considering a life sentence is error. See Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919), reh. denied, 251 U.S. 380, 40 S.Ct. 176, 64 L.Ed. 317 (1920). See also Alvord v. Wainwright, 564 F.Supp. 459 (1983), aff'd. in part, rev'd in part, 725 F.2d 1282 (1984), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). The record reflects that defense counsel challenged the prospective juror for cause, and when the court denied the challenge, defense counsel used a peremptory challenge. All of appellant's peremptory challenges were subsequently used; but as there is nothing in the record to show that any juror who sat on the trial was objectionable, we are unable to discover any grounds for reversal. See Stroud and Ferrell v. State, 475 P.2d 825 (Okl.Cr.1970). We therefore find this assignment of error to be without merit.

As his next assignment of error, the appellant cites two instances during the trial in which evidence of other crimes was injected and complains that these instances interfered with his right to a fair and impartial trial. In the first instance, Undersheriff Jameson testified that Mike Snow's part in the taped interrogation was on the subject of prior felony convictions. The trial court sustained an objection to that line of questions, but no request that the jury be admonished was made, so this issue is not properly preserved for appellate review. See Hickman v. State, 626 P.2d 873 (Okl.Cr.1981). In the second instance, during the playing of the recorded confession of the appellant in the jury's presence, the interrogating officer inquired concerning a rape charge which the appellant corrected as an "indecency of a child." After the tape concluded, defense counsel requested that the jury be admonished, but the court stated that a written instruction would be submitted to the jury on that subject. The appellant complains that the instruction allowed the jury to consider evidence on the issue of intent, knowledge or identity when the State had filed no notice under Burks v. State, 594 P.2d 771 (Okl.Cr.1979). But there was no objection to the instruction. Furthermore, the appellant's requested instruction was identical except it would have allowed the jury to consider the evidence on the issue of motive, intent and plan. As there is no significant difference between the two instructions, and the limiting instruction concerning other crimes evidence was properly given, the appellant has not been prejudiced, especially when the evidence of guilt was so overwhelming.

Appellant next urges that the evidence was insufficient to support his conviction for robbery with a dangerous weapon, and the trial court erred in failing to instruct on first degree robbery. The facts show that appellant's accomplice poked Ms. Sandefur in the back with what he said was a gun, and then...

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