Rosteck v. State
| Decision Date | 11 January 1988 |
| Docket Number | No. F-85-736,F-85-736 |
| Citation | 749 P.2d 556,1988 OK CR 11 |
| Parties | Robert Eugene ROSTECK, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Robert Eugene Rosteck, was tried by jury in Tulsa County District Court, Case No. CRF-84-4860, and convicted of Assault and Battery with Intent to Kill (21 O.S.1981, § 652) (Count 1); Attempted First Degree Rape (21 O.S.1981, §§ 42, 1114-1115) (Count 2); Forcible Sodomy (21 O.S.Supp.1982, § 888) (Count 3); Robbery with a Firearm (21 O.S.Supp.1982, § 801) (Count 4); and Kidnapping (21 O.S.1981, § 741) (Count 5). Appellant was charged with After Former Conviction of a Felony on each of the above five (5) counts (21 O.S.1981, § 51). Trial was held before the Honorable Donald C. Lane, District Judge. The jury set punishment respectively at one hundred (100) years, seventy-five (75) years, one hundred (100) years, fifty (50) years, and one hundred (100) years imprisonment. The trial court sentenced the appellant in accordance with the jury's verdict and ordered the times to be served consecutively. We affirm in part and reverse in part.
At approximately 10:30 a.m. on December 14, 1984, a man identified as appellant entered Robey's Laundromat to pick up some clothes he had left to be cleaned. He took the clothes to a car, then re-entered the laundromat and held a gun to the side of D.B., the victim, ordering her into a back room. He then told her to remove her clothing. She removed her sweater, then attempted to remove her jeans, but was unable to do so, as she could not pull them off over her boots. After appellant became aware that she could not remove her jeans, he ordered her to get on her knees, pulled out his penis and ordered her to lick it. After the oral sex act was completed, D.B. stood up, and was then stabbed in the neck and abdomen by appellant. D.B. fell backward, and appellant walked out of the room. D.B. heard the cash register open; then appellant returned, telling her to get dressed. He then pointed his gun at her, ordered her outside and ordered her into the trunk of his car, telling her he would take her to a hospital, then surrender himself to the police. As she walked by the cash register, D.B. noticed that the cash register drawer had been emptied, and that her billfold was missing. D.B. remained in the trunk for approximately two hours before appellant stopped driving. He started again, and drove for another two hours before stopping for some gasoline. D.B. pounded on the trunk in an attempt to get help. Appellant then drove for another hour. At this stop, D.B. again yelled for help, and thought she heard someone respond. The car was in motion, drove a few minutes, and then stopped. The trunk was opened, and then D.B. saw a Missouri state trooper. D.B. was taken to the hospital, where she remained for ten (10) days.
For his first assignment of error, appellant alleges that the trial court erred in overruling his motion to suppress a statement he made to Missouri law enforcement officials. The transcript reveals that appellant was read his Miranda rights when he was apprehended, before any questioning was begun, and he indicated he understood his rights. The Miranda rights were read to appellant again at the Missouri Highway Patrol zone office. Additionally, appellant himself read the rights at that time, and indicated he understood them. He did not indicate that he wanted to talk or that he wanted an attorney present, but he did sign a waiver form. Appellant was read his rights for a third time at the sheriff's office in LeClede County, Missouri. Appellant answered that he did not need an attorney, and would talk to a deputy. Several minutes later, appellant confessed to committing the acts.
When an accused has been fully advised of his constitutional rights and it appears that he has understood those rights, it can be assumed that any incriminating statements he makes thereafter constitute a waiver. Lee v. State, 560 P.2d 226, 233 (Okla.Crim.App.1977); Grigsby v. State, 496 P.2d 1188, 1193 (Okla.Crim.App.1972). The law does not require that an explicit statement of waiver is necessary to support the finding of a waiver. Browning v. State, 648 P.2d 1261, 1267 (Okla.Crim.App.1982). Inasmuch as the evidence is uncontradicted that appellant was advised of his rights and waived them, the response to questioning by law enforcement officers was properly admitted. This Court will not disturb the trial court's ruling permitting the introduction of a confession if it is supported by sufficient evidence that appellant knowingly and intelligently waived his rights and understood the consequences of his waiver. Chatham v. State, 712 P.2d 69, 71 (Okla.Crim.App.1986). This assignment of error is without merit.
Appellant also asserts that the trial court erred in the second stage by admitting a judgment and sentence containing a crime for which appellant was never convicted. The trial court allowed into evidence a certified copy of a judgment and sentence from Illinois reflecting that appellant had been convicted after pleading guilty to a charge of indecent liberties with a child. Contained in that judgment and sentence is a notation that a second count was dismissed. Nowhere is there a reference to the nature of the second charge, however, but only that is was dismissed.
The State may prove a defendant's prior conviction by introducing a certified copy of the judgment and sentence. Sanders v. State, 706 P.2d 909, 911 (Okla.Crim.App.1985). Regarding the unadjudicated charge, we note that the trial judge took great care to...
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Cargle v. State
...understood those rights, it can be assumed that any incriminating statements he makes thereafter constitute a waiver." Rosteck v. State, 749 P.2d 556, 558 (Okl.Cr.1988). Here, the detective testified Appellant's answer to his question was equivocal, and he continued the conversation to asce......
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...and thus admissable, that ruling will not be disturbed on appeal. McAdams v. State, 763 P.2d 391, 393 (Okl.Cr.1988); Rosteck v. State, 749 P.2d 556, 558 (Okl.Cr.1988). Accordingly, this assignment of error is denied. In his ninth assignment of error, Appellant contends that he was denied a ......
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