Sitsler v. State, F-77-668

• Decision Date: 20 November 1979
• Docket Number: No. F-77-668,F-77-668
• Citation: 603 P.2d 1142
• Parties: Robert Eugene SITSLER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1142

603 P.2d 1142

Robert Eugene SITSLER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-668.

Court of Criminal Appeals of Oklahoma.

Nov. 20, 1979.

An appeal from the District Court, Mayes County; William J. Whistler, judge.

Robert Eugene Sitsler, appellant, was convicted of the offense of Robbery With Firearms, After Former Conviction of a Felony; was sentenced to twenty (20) years' imprisonment, and appeals. REVERSED and REMANDED for new trial.

John M. Crockett and Ernest R. Brown, Pryor, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Evan A. Douthit, Legal Intern, for appellee.

OPINION

BRETT, Judge:

The appellant, Robert Eugene Sitsler, was charged, tried and convicted in the District Court of Mayes County, Oklahoma, Case No. CRF-76-101, of the crime of Robbery With Firearms, After Former Conviction of a Felony, in violation of 21 O.S.Supp.1973, § 801. In a bifurcated proceeding, the jury returned a verdict of guilty and set the sentence at twenty (20) years.

At about midnight on the evening of May 29, 1976, a man and a woman broke into the cabin of Charles Jackson in Salina, Oklahoma, by tearing the screen door and breaking the door latch. The man was armed with a pistol. Awakened by the intrusion, Jackson confronted the pair, who demanded money from him. He told them he had no money, and they left with a pocket knife, a watch and a radio. Jackson testified that the appellant had robbed him and that the appellant's mother-in-law lived in the second cabin down the road from Jackson. Jackson also testified that he recognized the small orange car in which his assailants departed as one he had seen parked at the mother-in-law's cabin.

Because he did not have a telephone, Jackson did not contact authorities until the next morning, when he called from a nearby drugstore. Investigating the robbery, Mayes County Undersheriff Glen Weaver made a plaster cast of the tire tracks in Mr. Jackson's front yard, and based upon the information in Mr. Jackson's statement, Officer Tom Price of the Salina Police Department and another officer went to the appellant's home. There, they saw an orange Mazda with two bald tires in the driveway. The officers then went to the house and arrested the appellant. The appellant, his wife, and the officers left the residence, and the appellant was taken to the jail in Pryor, Oklahoma, 15 miles away. Officer Price remained in Salina and at Sheriff Weaver's request returned to the appellant's residence to meet the tow truck approximately 20 to 30 minutes after the initial arrest.

When the officer approached the automobile to impound it, he saw a rifle in the back seat and a knife in a cubbyhole in the dashboard. The knife resembled the one taken in the robbery, but the gun had no connection with the crime. Both weapons were taken from the car, and the Mazda was taken to Pryor. No pistol was found in the search.

The appellant's first assignment of error is that this "search" of his car was illegal and that the knife was not admissible as evidence. The State contends, on the other hand, that in the instant case there were sufficient exigent circumstances to justify a warrantless search, in that the search was of an automobile, officers were unavailable to guard the vehicle until a warrant could be obtained, and the appellant's wife, who was also implicated in the robbery, remained after the arrest at the residence where the vehicle was located.

The testimony at trial was that the appellant's wife did not remain at the house after the appellant's arrest. Nor is there anything in the record to indicate that a search incident to the arrest was made of the appellant's residence. Neither the...