Smith v. State
| Citation | 695 P.2d 864 |
| Decision Date | 07 February 1985 |
| Docket Number | No. F-83-297,F-83-297 |
| Parties | Lonnell Eugene SMITH, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Lonnell Eugene Smith was tried before a jury and convicted of Robbery with Firearms, After Former Conviction of a Felony, in violation of 21 O.S.1981, § 801. The case was heard in the District Court of Tulsa County, the Honorable Margaret Lamm, District Judge, presiding, and the defendant was represented by counsel. The jury set punishment at ten (10) years imprisonment. From the Judgment and Sentence entered on the verdict the defendant has perfected this appeal. We affirm.
On May 3, 1982, Lowell Harris was operating his gas station in Tulsa with his twelve-year-old nephew. He usually carried a .32 caliber revolver for his own protection, and he was carrying it in his pocket on that day. About 2:00 p.m. the defendant drove up and asked for five dollars worth of gas, for which he paid. Defendant began to complain about the price of the gas and Mr. Harris replied that he did not set the prices. Defendant pulled out a BB rifle, pointed it at Mr. Harris' head, and took Mr. Harris' pistol during the ensuing scuffle. Appellant then left the premises with the gun. At trial, appellant denied pointing his gun at Mr. Harris' head. He justified the taking of Harris' gun by saying he saw the gun in Harris' pocket and thought Harris was reaching for it.
Later that day police received a complaint of a shooting disturbance in front of the defendant's address. There was at that time an outstanding pick-up alert on the defendant for the robbery of Mr. Harris. Police entered the defendant's garage where he was arrested and removed via ambulance. A subsequent search of the garage uncovered the pistol lying on the rear axle of a car inside the garage and near where the defendant had been arrested. The pistol was seized.
After the jury had returned a verdict and set punishment, defense counsel asked for inquiry into the present competency of the defendant. Judge Lamm ordered him committed to the Eastern State Hospital for observation for 60 days. The staff doctors there decided he was dangerous and incompetent. Judge Lamm ordered him committed there for treatment until he could achieve competency to stand for sentencing. Proceedings were stayed until that time. During the defendant's commitment, defense counsel received a letter from one of the examining physicians stating that the defendant could not, in his opinion, have been competent during the trial. A Motion for New Trial, which was overruled, was prepared on the basis of this "newly discovered evidence." After appellant was restored to competency, he was sentenced on November 23, 1982.
In his first assignment of error the appellant alleges the trial court committed reversible error in sentencing him because he was incompetent at trial. He did not raise the issue of present competency until after the jury had returned a verdict but before formal sentencing. In Mitts v. State, 345 P.2d 913, 917 (Okl.Cr.1959), this court said, The appellant was in the full view of the judge and defense counsel with whom he had worked to prepare the case, and there was no evidence adduced at trial that would have raised a doubt in the mind of the judge. Having in effect waived the defense of present incompetence by waiting until after the verdict was rendered, he is not now entitled to raise the issue in a Motion for New Trial. Id.
Petitioner cites only Berwick v. State, 94 Okl.Cr. 5, 229 P.2d 604 (1951), in support of his contention that he should have been granted a new trial on the basis of his motion. He contends knowledge of the appellant's incompetence at that time should be imputed to the trial judge and that the right to a hearing on present competency cannot be waived by the defendant. Id. 229 P.2d at 609-611. That case is inapposite, however, because there was evidence in that case sufficient to raise a legal doubt of present competence prior to rendition of a verdict. The language of waiver therein merely means that once the doubt has been raised a hearing cannot be waived. There was no sufficient evidence in the present case to raise a legal doubt of competence until after the verdict had been rendered.
In his second assignment of error the appellant alleges that the trial court erroneously failed to quash his arrest and suppress the evidence gained as a fruit thereof.
First he contends that the entry of police into his garage without a warrant was illegal. We disagree. The warrantless entry was valid because of the existence of exigent circumstances. There was reason to believe that he was armed and dangerous. The officers were aware that he was wanted for an armed robbery committed earlier that day, that he had been involved in a shooting in front of his address, and was last seen running toward his garage with a gun. It was reasonable then to conclude that he might injure someone or flee if not immediately arrested. See Chaney v. State, 612 P.2d 269 (Okl.Cr.1980), modified on other grounds, sub nom. Chaney v. Brown, 730 F.2d 1334 (10th Cir.1984). The time it took to get a key to the building, i.e., about four minutes, was not an inordinate delay during which a warrant could have been obtained. See Lee v. State, 661 P.2d 1345 (Okl.Cr.1983). The exigent circumstances therefore justified the warrantless entry into appellant's garage in order to arrest him, and the trial court properly overruled the motion to quash the arrest.
The appellant further contends that it was reversible error to admit the stolen pistol into evidence because it was illegally seized by police. We do not agree. At trial Smith admitted he had taken Mr. Harris' gun from him. In Dennis v. State, 561 P.2d 88 (Okl.Cr.1977), this Court held that even if the seized weapon was improperly admitted at trial the error was harmless because it tended to prove only a fact conceded by the defendant. See also Cowles v. State, 636 P.2d 342 (Okl.Cr.1981); Wade v. State, 556 P.2d 275 (Okl.Cr.1976). This assignment of error is therefore without merit.
In his third assignment of error the appellant alleges that there was insufficient evidence to convict him of robbery with firearms under Title 21 O.S.1981, § 801. On the contrary, the State presented sufficient evidence on each element of the crime to establish a prima facie case. Renfro v. State, 607 P.2d 703 (Okl.Cr.1980). The prosecuting witness testified...
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