Scott v. State

• Decision Date: 03 September 1980
• Docket Number: No. F-79-570,F-79-570
• Citation: 617 P.2d 240
• Parties: Kenneth Cedric SCOTT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 240

617 P.2d 240

Kenneth Cedric SCOTT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-570.

Court of Criminal Appeals of Oklahoma.

Sept. 3, 1980.

An appeal from the District Court, Tulsa County; Lowell Doggett, judge.

Kenneth Cedric Scott, appellant, was convicted of the offense of Robbery With Firearms, After Former Conviction of a Felony; was sentenced to thirteen (13) years' imprisonment, and appeals. AFFIRMED.

Ronald H. Mook, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Michael Jackson, Asst. Atty. Gen., F. K. Serfield, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Kenneth Cedric Scott, hereinafter referred to as the defendant, was charged, tried and convicted in the District Court of Tulsa County, Case No. CRF-78-1718, of the offense of Robbery With Firearms, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 801, and 21 O.S.1971, § 51. His punishment was fixed at thirteen (13) years' imprisonment.

The evidence at trial established that on the afternoon of July 5, 1978, "The Old, The New, The Different" store in Tulsa was robbed by two men, one of whom was armed with a pistol. Nancy Freeman, salesclerk at the store, testified that the defendant and another male came into the store and browsed. Shortly thereafter, the defendant left the store and the second man hid behind a clothes rack. The defendant came back and the second man jumped out from behind the clothes rack and stuck a gun in her face. Ms. Freeman and another clerk were escorted to the back of the store and ordered to lie down on the floor. Ms. Freeman's watch was removed from her arm and a cash box and a handgun were taken from the store.

During the investigation of the robbery, suspicion became focused on the defendant. Detective Eslick of the Tulsa Police Department left word at the defendant's residence for the defendant to contact the police. The defendant called Detective Eslick, who advised him that he was a suspect in a robbery, and Detective Eslick requested that he come to the police station to be in a lineup. The defendant complied with the request and executed waivers of his constitutional rights, including his right to an attorney at the lineup.

A lineup was conducted, and Ms. Freeman identified the defendant. The defendant made an oral statement, admitting that he had gone to the store with a companion for the purpose of "till tapping." On being advised that this account did not agree with the statements of the victims, the defendant denied any knowledge of the robbery.

The defendant asserts in his first assignment of error that the trial court erred in overruling his motion to quash his arrest and suppress the in-court identification and confession. The defendant argues that his compliance with the officer's request that he come to the police department constituted an arrest without probable cause. The defendant further argues that because the initial arrest was illegal the subsequent identification and confession should have been suppressed as "fruits of a poisonous tree." The defendant cites as authority Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We are of the opinion that this assignment of error is wholly without merit. In Castellano v. State, Okl.Cr., 585 P.2d 361 (1978), we adopted the definition of an arrest as that found in 6A C.J.S. Arrest, § 2, as follows:

"(T)he taking, seizing, or detaining the person of another either by touching, or by any act which indicates an intention to take him into custody and subject the person arrested to the actual control and will of the person making the arrest, or any deprivation of the liberty of one person by another or any detention of him, for however short a time, without his consent, and against his...