Stidham v. State

• Decision Date: 13 March 1973
• Docket Number: No. A--17114,A--17114
• Citation: Stidham v. State, 507 P.2d 1312 (Okla. Crim. App. 1973)
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: George Arwood STIDHAM, Appellant, v. The STATE of Oklahoma, Appellee.

Page 1312

507 P.2d 1312

George Arwood STIDHAM, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17114.

Court of Criminal Appeals of Oklahoma.

March 13, 1973.

Roger W. Griffith, Mattoon & Griffith, Norman, for appellant.

Larry Derryberry, Atty. Gen., Jeff L. Hartmann, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Presiding Judge.

Appellant, George A. Stidham, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Cleveland County, Case No. CRF--71--37, for the crime of Murder. He was sentenced to serve a term of life imprisonment in the state penitentiary in accordance with the verdict of the jury, and a timely appeal has been perfected to this Court.

The record discloses the following facts. Billy Bob and Connie Cunningham testified that Jackie Jo Unsell was living with them in Oklahoma City on January 29, 1971. At approximately 4:00 p.m. on that date, the defendant arrived at the Cunningham home with a 12-gauge shotgun in his possession. Mrs. Cunningham observed he shotgun being placed in defendant's car before he left a few minutes after 4:00 p.m. Defendant returned to the Cunningham home at approximately 5:00 p.m. and told Billy Bob that he would kill anyone before he went to the penitentiary for a hundred years and that he was not going to let anyone 'snitch' on him. To which Cunningham replied, 'No, me neither.'

The defendant then left the house in his automobile at approximately 5:30 p.m. with Jackie Jo Unsell, who was carrying an overnight case, a paper sack containing clothing, and a purse. They drove to the defendant's mother's home where they finally left at about 8:00 p.m., again in defendant's automobile.

The next time the defendant was seen that night was at approximately 11:15 p.m. at Lake Thunderbird in Cleveland County. Witness Songer testified that he recognized the defendant as the person he had helped to pull a car from the lake that night. The auto was located four to four and one-half miles east of the Franklin Store where the road runs into Lake Thunderbird, and was approximately 20 feet into the lake. Songer testified that the defendant's clothes were wet nearly to his waist.

Defense witness Rackley testified that the defendant visited his Oklahoma City home at approximately midnight on the night of January 29, 1971; and that defendant's clothing did not appear wet or muddy at that time.

The defendant's mother, Mrs. Marshall, testified that the defendant arrived at her home at about 12:15 a.m. on the 30th of January; that there was nothing unusual about his appearance or clothing; and that she did not observe any mud on defendant's automobile.

The body of a young woman, later identified as Jackie Jo Unsell, was discovered near the community of Franklin, in Cleveland County, Oklahoma, during the morning of January 30, 1971. The County Medical Examiner examined the body at the scene and was of the opinion that the cause of death was a gunshot wound in the right lower rib cage and that there was another wound in the right hip; that death occurred before midnight January 29, 1971, and probably twelve hours before his arrival at 9:00 a.m. on the 30th. During the autopsy, shotgun wadding, later identified as from a 12-gauge shotgun, was removed from the body of the victim as well as shotgun pellets, later identified as number four pellets.

The defendant was arrested without a warrant at approximately 9:00 p.m. January 30, 1971, in Oklahoma City and advised of his rights. Following arrest, the defendant was taken to the Cleveland County Jail and incarcerated. At 3:15 p.m. on Sunday, January 31, 1971, the defendant was interviewed by the Sheriff concerning the death of Jackie Jo Unsell after the defendant had executed a written advice of rights form. The defendant stated that he last saw Jackie Jo Unsell around 10:30 p.m. on the 29th when he let her out of his car in Oklahoma City where she had parked her auto.

The following morning (Monday, January 31), the defendant was arraigned and again advised of his rights. After acknowledging that he understood his rights, the defendant asked the Sheriff to tell him what evidence he had on the case. After the Sheriff complied the defendant replied, 'I won't take this alone. I took the victim out there, but I didn't shoot her. Billy Bob Cunningham shot her.' The defendant then directed the Sheriff to the death scene; the area where shotgun shells and a shotgun were thrown from the car; the place where the victim's overnight case, clothes and purse were disposed of; and the location where the defendant drove his car into the lake. The articles were later found by the police to be generally where the defendant had indicated. The gun found was identified as a 12-gauge shotgun which had fired the number four shells also found at the scene.

I

Defendant's first, second and third propositions may be discussed together since they concern defendant's motions to suppress evidence which were overruled by the magistrate and the trial court.

Defendant contends that the arresting officer did not have sufficient cause to arrest the defendant for murder; that the warrantless arrest was thus illegal; that the evidence obtained at the death scene was a fruit of defendant's statements made after his arrest; and that as fruits of the original unlawful arrest, they were, as a matter of law, inadmissible. After reviewing the record, we find that the motions to suppress evidence were correctly overruled.

Both the magistrate and the trial court found that there was probable cause for arrest under 22 O.S., § 196. Giving due weight to these findings, we think them amply justified by the facts in the record. Title 22 O.S.1971, § 196, provides in part:

'A peace officer may, without a warrant, arrest a person:

'3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.'

This Court set forth the standard by which facts allegedly constituting 'reasonable cause' are to be measured in Cudjo v. State, Okl.Cr., 489 P.2d 1101, 1105, as follows:

'* * * If the facts are such that a reasonably prudent man would have believed the accused guilty, and would have acted upon that belief, a police officer is justified in making an arrest without a warrant (for a felony). * * *'

See State v. Chronister, Okl.Cr., 353 P.2d 493. There need not be absolute, irrefutable cause. Welch v. State, Okl.Cr., 236 P. 68.

The record of the hearing conducted on defendant's motion to suppress reveals that the investigating officers knew that the victim Unsell had been shot by a shotgun. The victim was later identified and officers interviewed Billy Bob and Connie Cunningham in whose home the victim had been living. From them it was learned that the victim had been last seen with the defendant; that the defendant had had a shotgun in his possession at that time; and that the defendant had made threatening remarks about the victim. We find these facts to be sufficient for the magistrate and trial court to rule that probable cause for arrest was shown and the arrest was legal.

But even if the arrest were illegal, the evidence to which defendant objects does not come within the 'fruit of the poisoned tree's doctrine. The proper question in such a case is to determine whether the objected evidence has been obtained by exploitation of the original illegality or by means sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441. The relationship between an arrest and a statement given several hours later is obviously different from one in which the statements in question were made at or very near the time of arrest as was the case in Wong Sun. Collins v. Beto, 348 F.2d 823 (5th Cir., J. Friendly, concurring). An original taint may be removed by intervening circumstances. Walls v. State, Okl.Cr., 491 P.2d 320.

In the case at bar the defendant made the allegedly tainted statements 39 hours after his arrest. He had been warned of his rights at arrest and had signed a rights form prior to questioning. The record shows that the defendant voluntarily gave the information about the location of the evidence without force or inducement by the questioning officers. He did so after being confronted with the evidence against him which was the result of an independent investigation, completely apart from any statements by the defendant. These intervening factors taken together are sufficient to purge the later obtained evidence from any 'taint' from an allegedly illegal arrest.

The defendant's second point involving his motions to suppress is that there was an unreasonable delay in taking the defendant before a magistrate which in effect made his statements coerced. Defendant cites Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 in support. However, this ruling is based solely on the authority of Rule 5 of the Federal Rules of Criminal Procedure and thus does not apply to this state court. The right to come before a magistrate in reasonable time is not a federal constitutional requirement. Delaney v. Gladden, 397 F.2d 17, 20 (9th Cir. 1961), cert. denied, 393 U.S. 1040, 89 S.Ct. 660, 21 L.Ed.2d 585.

The established rule in this state is that the burden is on the defendant to demonstrate prejudice by reason of the delay in addition to the delay itself. Brown v. State, Okl.Cr., 384 P.2d 54. Dimsdle v. State, Okl.Cr., 456 P.2d 621. A delay of 33 days has been held not prejudicial on its facts. In re Dare, Okl.Cr., 370 P.2d 846.

The record before the court shows that defendant was arrested at 9:00 p.m. on Saturday and was arraigned at 10:00 a.m. the following Monday. Defendant has made no attempt to demonstrate prejudice by reason of this delay, if any. It is relevant that defendant knew he had been arrested on a murder charge, and was aware of his right to remain silent, and to have counsel p...