Rumbaugh v. State

• Decision Date: 03 March 1982
• Docket Number: No. 67999,67999
• Parties: Charles RUMBAUGH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 747

629 S.W.2d 747

Charles RUMBAUGH, Appellant, v. The STATE of Texas, Appellee.

No. 67999.

Court of Criminal Appeals of Texas, En Banc.

March 3, 1982.

Rehearing Denied April 7, 1982.

Gene Storrs, Amarillo, for appellant.

Danny E. Hill, Dist. Atty., Ken Johnson and Phil Black, Asst. Dist. Attys., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death. ¹

The State's first witness, Gerald Bishop, testified that on the morning of April 4, 1975, when he went to the deceased's jewelry store, he found the door to the shop open and the body of Michael Fiorillo on the floor. Later that morning, Lieutenant Gerald Jacobs and his partners, Detective Gainer and Lieutenant Garner, went to an Amarillo address a block and a half from the jewelry store with a warrant for appellant's arrest. ² As the officers approached the residence, they saw the appellant and his sister, Tara Rumbaugh, leaving the building. The appellant identified himself to the officers as Rex Rumbaugh. The officers asked the appellant for identification and appellant told them it was upstairs. Jacobs followed the appellant up the stairs. About halfway up the stairs, the appellant turned around with a gun pointed at the Lieutenant and said "Freeze". Jacobs testified that he ducked down and drew his pistol. The appellant turned and the officer shot appellant in the hand.

The appellant's confession, which was introduced in evidence, stated in part:

"I came to Amarillo in the first week of April, 1975. On the morning of April the 5th, 1975, which was a Friday, just as it was getting light, I left my sister's apartment. There was no one else awake in the apartment when I left.

I walked around for awhile. I walked down Tenth Street and past a jewelry store named Michael's Jewelry. I looked inside, I saw an old man that had glasses on and a gray or blue suit. There was a key in the inside lock to the door.

I walked around the block. I came back. I walked into the door. Right in front of the door is a display case and an aisle leading to the back.

I walked around the display case and the old man came up from the back. He said, 'What can I do for you?' I pulled out a .25 caliber pistol from my coat pocket and I said, 'Just remember, your insurance can give you your money back, but they can't give you your life back.'

I then said, 'Bag up the money.' The old man said that the money was in the safe up front. I told him to open it up. He took a long time to open it. I put the pistol to his head and said, 'Hurry your ass up.'

He opened it and pulled a little metal box out. I told him to set it down. I looked in the safe and saw some watches and I told him to bring them out. He put them on the floor. I said, 'Okay, go back there,' indicating the shop area.

He walked through a doorway and reached to his left on top of a safe and there was a gun in a white money bag. He pulled it out, and when I saw this, I grabbed him and pulled him to the floor.

He dropped the pistol and he grabbed for it again. I put the gun near his head and shot. He fell down and I said, 'You dumb son-of-a-bitch.'

The old man started to get up again, and I shot him again. He fell again and I figured he was dead. I grabbed his pistol and stuck it back in the bag and stuck the bag under my arm. I walked up front and got the money out of the tray. I took only the bills and left the change.

I walked out the door and went back to the apartment. When I got back to the apartment, everyone was still asleep. I stashed everything and went into the living room and turned on the radio and I smoked some weed.

The rest of the house started to wake up. I sat there for awhile and didn't hear anything. I went and got the money bag and the pistol. The money bag had a box of shells and the pistol.

I took a pocket knife and cut the money bag up and put the pieces in a sack. I took the cardboard box with the shells in it and burned it. I took a piece of sandpaper and sanded off the inscription on the gun.

The inscription read 'To Mike, Clarence and Curly, December '58.'

I then changed clothes. I stuck the pistol that I had gotten from the old man in my pants. I put the gun up that I had used. I put my clothes in a sack."

Jacobs testified that he retrieved the gun from appellant, a .38 Smith and Wesson pistol. The inscription on the side plate read "To Mike", but the rest of the inscription had been sanded off. It was established by other witnesses that the deceased owned a gun which was inscribed, "To Mike" with the names of the persons that had given it to him.

Appellant contends in ground of error one that the trial court erred in denying his "Motion to Sequester Veniremen". The written motion which appears in the record requested that all prospective jurors be sequestered until excused from service by the court. The jury was selected after ten days of voir dire examination. Defense attorneys again requested that the selected jury be sequestered. The trial court stated that he shared defense counsel's concern about pre-trial and in-trial publicity; however, he stated that he would wait until the following Monday to decide whether or not to sequester the jurors.

On Monday, April 28, 1980 the jury was sworn and instructions were repeated. No mention was made concerning sequestration of the jury; however, as the judge was cautioning the jury before dismissing them for lunch, he stated, "Now, insofar as sequestering you at night is concerned, I have decided that that would not be necessary. I'm not concerned about the twelve of you all doing something out of line." There were no objections to the trial court's decision.

Art. 35.23, Vernon's Ann.C.C.P. provides that when jurors have been sworn in a felony case, it is within the trial court's discretion to permit jurors to separate until the court has given its charge to the jury.

The record reflects that the jurors were frequently admonished by the court. The record does not show any violation of these admonishments. Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975). No abuse of discretion has been shown. The contention is overruled.

In ground of error two, appellant contends that the trial court erred in failing to grant his motion to suppress evidentiary items seized as a result of an illegal search. A pre-trial hearing was held on the motion to suppress, wherein Captain Kenneth Kahnert testified that on April 4, 1975, he was dispatched to an Amarillo residence to investigate a shooting involving Lieutenant Jacobs. Fahnert testified that he searched the upper floor of the residence after he received permission to do so from appellant's sister Cynthia Rumbaugh, who had told him she rented the apartment. Fahnert stated that he requested permission to search the apartment because after investigating the shooting incident, he suspected the appellant of being a suspect in the instant offense. Fahnert stated that Cynthia Rumbaugh twice gave him permission to search the apartment, once in the presence of a reporter. However, Fahnert stated that he did not have a written consent form with him at the time.

Detective William Gainer testified that he heard "the girl" ³ tell Captain Fahnert, "You can go ahead and search the apartment, there's nothing in it." Gainer also stated that the apartment manager told him that the apartment was rented to Cynthia Rumbaugh. The detective stated that he observed in the apartment what appeared to be marihuana floating in the toilet and sandpaper that had some "metal or foreign matter in it."

Detective Shelby Vitatoe testified that he assisted in the search of Cynthia Rumbaugh's apartment. Vitatoe stated that he overheard Fahnert obtain permission from Cynthia Rumbaugh to search the apartment. Vitatoe recalled that a jewelry bag, two pistols, and a bank bag cut into small pieces were recovered in the search.

The appellant testified that there were two apartments upstairs in the building. He said his sisters lived in the apartments and that "Sometimes they would both stay in one; sometimes one would stay in one and one would stay in the other one." Neither sister testified at the hearing or at the trial.

It is the right of every citizen to be secure in his home from warrantless searches; however, one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Nastu v. State, 589 S.W.2d 434 (Tex.Cr.App.1979). Before consent can be effective, the prosecution must prove by clear and convincing evidence that the consent was given freely and voluntarily. Whether consent to search was voluntary is a question of fact to be determined from the totality of the circumstances. Brem v. State, 571 S.W.2d 314 (Tex.Cr.App.1978); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977). Under the circumstances, we conclude that consent by the occupant of the apartment was given freely and voluntarily. The contention is overruled.

Thirdly, appellant contends the trial court erred in failing to grant his motion to suppress the confession. Appellant argues that the State did not prove that appellant was given his Miranda warnings prior to interrogation or that the statement was given voluntarily. Lt. Gerald Jacobs testified that after the shooting, he took custody of the appellant, searched him for weapons and read him his rights. At that point, the ambulance arrived and Jacobs rode with appellant to the hospital. Jacobs stated that the next time he saw the appellant was April 6 at the police station. Jacobs said he just wanted to talk to him because "It was the first person I ever shot, and I wanted to carry on a conversation with him..." During their conversation the appellant wanted to talk to his brother, Rex, who was being held in City Jail. After the appellant spoke with his brother, h...