Story v. State

• Decision Date: 26 March 1969
• Docket Number: No. A--14380,A--14380
• Citation: 452 P.2d 822
• Parties: Reed STORY, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 822

452 P.2d 822

Reed STORY, Jr., Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14380.

Court of Criminal Appeals of Oklahoma.

March 26, 1969.

Syllabus by the Court

1. Prior to any in-custody police questioning the accused must be warned in clear and unequivocal terms, (1) that he has a right to remain silent; (2) that any statements that he does make may be used as evidence against him; (3) that he has a right to consult with, and have present, prior to, and during interrogation, an attorney, either retained or appointed; and, (4) that if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires. Each of these four warnings must be given and it is not sufficient to give some, but not all, of the warnings. The result of any questioning which is not in compliance with these requirements would be inadmissible in a trial.

2. Ordinarily confessions of defendants 17 and 18 years of age, accused of burglary, are inadmissible in evidence where there is absence of parent or guardian, or counsel, since such defendants should be deemed incapable of waiving the constitutional and statutory safeguards provided by law in a criminal case, unless it appears beyond a reasonable doubt that the minor defendants fully understood the effect and the results growing out of such waiver.

3. It is error to admit a confession of a minor defendant of subnormal education who was not fully advised of his rights before an in-custody interrogation absent parent, guardian, or counsel; and, where there is nothing further to show beyond a reasonable doubt that the defendant fully understood the effect and results growing out of such a waiver.

4. Placing a saw-horse, or scaffold by the side of a home, looking through a window, and discovering a wrist watch purportedly taken in a burglary constitutes an illegal search where the police officers do not have a search warrant, are not acting in connection with an arrest, and have not secured the voluntary consent of the occupant.

5. A search, void in its inception, cannot be legalized by what it brings to light.

6. The right against illegal search and seizure is not waived by the actions of the occupants who do not demand a search warrant or resist entry by policemen, where an illegal search has already commenced in the absence of the occupants.

Appeal from the District Court of Oklahoma County; Jack R. Parr, Judge.

Reed Story, Jr., was convicted of Burglary First Degree, sentenced to eight years in the penitentiary, and appeals. Reversed and remanded.

Bay, Hamilton, & Renegar, Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

NIX, Judge.

Plaintiff in error, Reed Story, Jr., hereinafter referred to as the defendant, was charged by information in the District Court of Oklahoma County with the crime of Burglary First Degree. He was tried by a jury, found guilty and sentenced to eight years in the penitentiary. From that judgment and sentence he has appealed to this Court.

Defendant has alleged several assignments of error, but it will be necessary only to discuss two questions in order to dispose of this appeal. These questions concern the admissibility of defendant's confession; and the introduction of, and the testimony concerning one of the items taken in the burglary, to wit: a wrist watch.

Briefly stated, the evidence indicates that approximately seventeen days after commission of the burglary, the Del City Police Department was notified that the Ada Police Department had a boy in jail who had admitted getting into a house in Del City. In response to this information, two Del City Policemen, Officers Cain and Huff, went to Ada where they first interrogated another boy, and then the defendant. Officer Cain, after finding out the defendant was 17 years of age, testified as follows:

'I asked him if his parents knew where he was at and he said they didn't and I asked him if they wanted to call his parents and he said that he didn't want his parents to know where he was at. I said that he didn't have to tell us anything and anything that he did say may and could be used against him and he had a right to obtain a lawyer which he declined.'

The officer's testimony does not indicate any more detailed admonitions.

After this advising of rights and further questioning regarding the burglary, the defendant wrote out and signed a confession in the absence of parent, guardian, or attorney. This confession was admitted into evidence at defendant's trial over objection of defense counsel, Mr. Andrew Hamilton, who stated:

'Yes, Your Honor, we again object. On the basis that it's not a proper confession; that the man was not advised of his rights under the statutory and case decisions of Oklahoma and the United States of America and that the confession was not a voluntary confession and was illegally obtained from a minor 17 years of age without the presence of his parents or an attorney.'

The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that Prior to any in-custody police questioning, the accused must be warned in clear and unequivocal terms (1) that he has a right to remain silent; (2) that any statement that he does make may be used as evidence against him; (3) that he has a right to consult with, and have present prior to and during interrogation, an attorney, either retained or appointed; and, (4) that if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires.

Each of these four warnings, must be given and it is not sufficient to give some, but not all, of the warnings. The result of any questioning which is not in compliance with these requirements would be inadmissible in a trial. See, 10 A.L.R.3rd, at 1060. In particular, the Supreme Court said:

'In order fully to apprise a person interrogated rogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.' 384 U.S., at 473, 86 S.Ct. at 1627.

A search of the record in the instant case fails to reveal that the interrogating officers advised the defendant that if he could not afford an attorney, one would be appointed for him prior to any questioning, if he so desired. Not only did the interrogators fail to fully comply with the Miranda requirements in the instant case, but it appears somewhat doubtful that the defendant, who the record reveals was age 17 and had only completed the seventh grade in school, gave a knowing and intelligent waiver of his rights under Miranda. It is questionable that a 17 year old boy of sub-normal education could intelligently comprehend the effect of his waiver after the inadequate warning given herein in the absence of either a parent, guardian, or an attorney.

Prior to the Miranda decision, this Court had held in Olivera v. State, Okl.Cr., 354 P.2d 792 (1960) in the second syllabus, as follows:

'Ordinarily confession of defendants 17 and 18 years of age, accused of burglary, are inadmissible in evidence where there is absence of parent or guardian, or counsel, since such defendants should be deemed incapable of waiving the constitutional and statutory safeguards provided by law in a criminal case, unless it appears beyond a reasonable doubt that the minor defendants fully understood the effect and the results growing out of such waiver.'

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