Schorr v. State
| Decision Date | 28 June 1972 |
| Docket Number | No. A--16213,A--16213 |
| Citation | 499 P.2d 450 |
| Parties | Kenneth B. SCHORR, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court
1. The hearsay rule applies as forcibly to statements in writing as it does to those verbally made.
2. The introduction into evidence of letters written by a third party, which contain inflammatory and prejudicial language, which was neither authored nor sanctioned by defendant, may constitute reversible error.
3. A consent to search, either written or oral, given by a defendant while in custody, must be preceded by a complete and proper 'Miranda' warning.
4. A consent to search premises for vehicles obtained when the defendant is not in custody, and not undergoing interrogation, need not be preceded by a complete and proper 'Miranda' warning.
5. For a non-custodial consent to search premises or vehicle to be valid, the defendant need only to be advised of his Fourth Amendment rights.
An Appeal from the District Court of Oklahoma County; Harry L. S. Halley, Judge.
Robert B. Schorr was convicted of the crime of Possession of Marijuana; sentenced to Six Years in the penitentiary and to pay a fine of $2,500.00; and appeals. Reversed and remanded with instructions to dismiss.
Eric J. Groves, Robert M. Jernigan, and Buck & Crabtree, Oklahoma City, for appellant.
Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., for appellee.
Appellant, Kenneth B. Schorr, was convicted of the crime of Possession of Marijuana in the District Court of Oklahoma County, Oklahoma, and sentenced to a term of six years in the pentitentiary and assessed a fine of $2,500.00, in accordance with the jury verdict. From the judgment and sentence in the case, appellant has perfected a timely appeal to this Court.
The facts, briefly stated, are that appellant was operating his Volkswagen bus in an easterly direction on N.W. 39th Street, also designated as U.S. Highway 66, within the city limits of Bethany, Oklahoma. As the Volkswagen passed to the east of the intersection of Council Road and N.W. 39th Street, the defendant negotiated a U-turn which was observed by Officer Joe Resneder of the Bethany Police Department.
Allegedly, appellant, in making the U-turn, did not have his vehicle fully in the lane marked for left hand turns.
Appellant operated his vehicle in a westerly direction back to the intersection of Council Road and N.W. 39th, where he made a right hand turn onto Council Road and headed North to a location where the vehicle was stopped by Officer Resneder. Upon ascertaining that appellant did not have a drivers license, Officer Resneder requested the appellant and the two passengers of the Volkswagen to follow the officer to the Bethany City Police Station. The appellant was permitted to drive his vehicle to the station.
After a relatively short time at the Bethany Police Station, defendant was separated from his two companions and asked to sign a 'rights waiver' and a 'search waiver.'
Under color of authority of the 'search waiver,' the officers searched the Volkswagen bus and found marijuana inside the bus. This search purportedly took place after 7 P.M. on the evening of the day of the arrest.
The defendant and his two companions were thereafter transported to the Oklahoma County Jail and at that jail, the following morning, the defendant was interrogated by Captain Sharp of the Bethany Police Department and Captain Sharp obtained a written statement from the appellant.
Appellant, in his brief, asserts numerous errors on the part of the trial court as grounds to reverse and remand, or, in the alternative, dismiss the case against him. However, it is but necessary to discuss two of the propositions asserted by appellant to determine this appeal.
Proposition Three, in appellant's brief, complains that the trial court erred in admitting into evidence, over defendant's objection, certain unidentified letters containing hearsay statements of an inflammatory and prejudicial nature.
Factually, during the search of the Volskwagen bus by the officers, there was discovered in the sack containing the marijuana, certain letters, one being attached to the bottom of the sack, the other inside the sack. One of the letters, according to the record, had been written to the defendant by his brother, and mailed from Barcelona, Spain.
The letter from Barcelona, Spain, was addressed to 'Kenny Schorr, Esq.,' and signed 'Boyd.'
The letter contained certain language which is necessary to be set out in this opinion. Within the letter there was written:
'I hope the shrink thing is going well and that you are staying out of trouble';
'Don't get stoned much';
'I really miss some good grass (all they have here is hash)';
'Been laid a couple of times';
'Save me a joint and some good records'.
Not only was the questioned letter introduced into evidence, but the prosecutor alluded to the letter and part of its contents in his final summation to the jury, thus emphasizing some of the language contained in the letter which the appellant had not authored. Unquestionably, the language set out in the questioned letter was prejudicial, and had a tendency to inflame the minds of the jurors as to the defendant even though he was not directly responsible for its contents.
Appellant concedes, however, that the fact that a letter addressed to the defendant was found in the same sack with the marijuana was properly admissible as part of the res gestae and might, in its best light, from the standpoint of the state, tend to connect the defendant with the marijuana. However, appellant re-emphasizes that the contents of the letter, as set out above, were introduced by the state for the sole purpose of prejudicing the appellant in the minds of the jury.
Neither the appellant nor the state cite, in their briefs, any case directly in point on the issue of the admissibility of letters under the circumstances as above set out. Appellant contends that this particular letter was the rankest hearsay imaginable and was written evidence in court of statements made out of court, offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out of court asserter.
A somewhat analogous fact situation may be found, however, in Goben v. State, 20 Okl.Cr. 220, 201 P. 812 (1921). In Goben, the state introduced into evidence a letter found in the bottom of a trunk, which letter bore the initials of the defendant. The letter was not signed, except by the name of 'Jack' and was not a statement in writing made by the defendant or his co-defendant. This Court held that the defendant's objections to the introduction of the letter should have been sustained and the letter excluded.
Also, in Shaw v. State, Okl.Cr., 134 P.2d 999 (1943), this Court reiterated the general rule that 'the hearsay rule applies as forcibly to statements in writing as it does to those verbally made.' Ferriman v. Turner, 99 Okl. 277, 227 P. 443, 446. In Shaw, supra, the state introduced into evidence, over the objection of defendant, certain books, pamphlets and other writings of which defendant was not the author, for the purpose of showing the principles of the communist party, allegedly advocated by defendant, where the books and writings were not properly authenticated. As well, in Shaw, supra, there is no evidence that the defendant sanctioned the matter set out in said writings.
Again, this Court pointedly held that to admit such evidence, neither authored nor sanctioned by the accused, was reversible error and does not come within any exceptions to the hearsay rule.
We next turn to appellant's proposition six which is 'the trial court erred in overruling defendant's motion to suppress the evidence illegally obtained by the alleged consent of the defendant.' He bases this proposition of error primarily upon the fact that the 'Miranda warning' given appellant by the officer before he, the appellant, signed the consent to search was substantially defective. The so-called 'Miranda warning' read to appellant and signed by appellant reads as follows:
(Emphasis added.)
By reason of Reese v. State, Okl.Cr., 462 P.2d 331 (1969), the rights warning given appellant in this case, on its face, is fatally defective. For in Reese, supra, this Court held in syllabus three:
'Where police officer testified that he advised defendant that he would be appointed an attorney in the event the case came to court, and subsequent testified to an admission or confession given by defendant during interrogation, Court of Criminal Appeals will reverse said cause for a new trial.'
Following the defective 'Miranda warning', appellant signed a consent to search, which reads as follows:
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