Nealy v. State

1981 OK CR 142, 636 P.2d 378, 1981 Okla. Crim. App. LEXIS 298
CourtCourt of Criminal Appeals of Oklahoma
DecidedNovember 10, 1981
DocketF-80-235
StatusPublished
Cited by56 cases

This text of 1981 OK CR 142 (Nealy v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nealy v. State, 1981 OK CR 142, 636 P.2d 378, 1981 Okla. Crim. App. LEXIS 298 (Okla. Ct. App. 1981).

Opinion

OPINION

BUSSEY, Judge:

The appellant, Joel Wesley Nealy, hereinafter referred to as the defendant, was convicted in the District Court of Cotton County, Case No. CRF-79-45, for the offense of Robbery with a Firearm, in violation of 21 O.S.Supp.1980, § 801. He was sentenced to ten (10) years’ imprisonment. At the same trial, the defendant was convicted in Case No. CRF-79-49 for the of *380 fense of Larceny of an Automobile, in violation of 21 O.S.1971, § 1720. He received a five (5) year term to run consecutively with the former ten (10) year sentence. The defendant was found innocent of a third charge: Assault and Battery, Case No. CRF — 79-51; in violation of 21 O.S.1971, § 642. From such judgments and sentences, the defendant brings this appeal.

On June 22, 1979, the defendant and Samuel Townsoner robbed a service station in Walters, Oklahoma. Through the use of a pistol, they were successful in forcing the station employees to ■ unlock the cash box and surrender two hundred seventy-three dollars ($273.00). After committing the robbery, Townsoner took the keys to the station’s truck, and, with the defendant driving the stolen vehicle, the two men soon arrived at the Texas-Oklahoma border. At the border the confederates were confronted by Texas police officers who had received notification, via radio bulletin, about the robbery. Since the vehicle matched the description given by the radio broadcast, the officers decided to investigate. As they moved toward the vehicle, officer Salyer testified that he saw an object being thrown from the driver’s side of the truck. The discarded object was retrieved and was identified as a luger-type gun. Having probable cause to believe the defendant and Townsoner were the robbers, Salyer took both men into custody. Prior to impounding the vehicle, two Texas officers searched the truck without a warrant and discovered a sack under the defendant’s truck seat which contained a quantity of currency and some .22 caliber shells. This evidence was admitted at trial.

For purposes of this appeal the defendant’s assignments of error will be considered in the order in which they actually occurred.

Initially the defendant argues that the district court’s instructions authorized conviction for a crime not charged in the information. It is alleged that the information only contains the elements necessary to convict the defendant of Robbery by Force or Fear, and that the judge gave instructions which allowed the jury to find the defendant guilty of Robbery with a Firearm. Customarily, if there is a defect in the information, it is the defendant’s responsibility to file a demurrer or motion to quash at the trial stage. Failure to do so waives any defect in the information except where the court has no jurisdiction over the subject matter. Wright v. State, 505 P.2d 507 (Okl.Cr.1973). Here the defendant’s motion to quash totally fails to attack the sufficiency of the information. The defendant also failed to properly preserve this issue in that it is not included in his motion for new trial or petition in error. Nonetheless, the information was sufficient to confer jurisdiction upon the trial court.

The tests in this state for the sufficiency of an information are: 1) Whether the defendant was in fact misled by the information; and, 2) Whether it would expose the defendant to the possibility of subsequently being put in jeopardy a second time for the same offense. Williams v. State, 579 P.2d 194 (Okl.Cr.1978). The record reflects that the defendant was well aware of the charges against which he had to defend. It is also certain that the information contained a sufficiently specific description of the crime charged so as to preclude the possibility of the defendant being placed in double jeopardy. See, Fish v. State, 505 P.2d 490 (Okl.Cr.1973). The test for the sufficiency of an information must be determined on the basis of practical rather than technical considerations; hairsplitting is to be avoided. United States v. Moore, 556 F.2d 479 (10th Cir.1977). Applying this reasoning, we hold that the defendant was adequately advised in the information of the precise charge levied against him.

The defendant next argues that the trial court committed reversible error in ruling that if he testified prior criminal conduct could be used to impeach his testimony.

Shortly before trial on the present charge, the defendant was found guilty of a felony; however, by the time the instant case came to trial, he had not yet appeared *381 before a judge for final judgment and sentencing. The defendant argues that 12 O.S. Supp.1980, § 2609, states that the testimony of a person can be impeached by admitting evidence which shows that the witness has been convicted of a crime. (Emphasis ours) Since his final judgment and sentencing had not occurred at the time of trial, the defendant claims that he was not yet “convicted” of a crime. Thus, he argues that his motion in limine, requesting the judge to disallow such questions in the event he decided to take the stand, should have been granted. The defendant’s motion was rejected, and he chose not to take the stand in his own defense.

This issue is not properly before this Court. The defendant not only failed to raise this issue in his motion for new trial or petition in error, but he failed to contest at trial the judge’s ruling on his motion in limine. If the defendant desired to contest the judge’s ruling, he should have taken the stand and objected when the State began to impeach his testimony by asking questions concerning past criminal conduct. The defendant’s decision to remain silent was a tactical choice that precluded the issue from being brought before this Court. A ruling on a motion in limine is merely advisory and not conclusive. To properly preserve the issue contained in such a motion, the proposition must be introduced at trial, and if overruled, objections should occur at that time. Teegarden v. State, 563 P.2d 660 (Okl.Cr.1977).

The defendant further argues that reversible error occurred when the judge failed to grant the defense counsel’s request to suppress evidence, which he claims was illegally obtained at the scene of an unlawful arrest.

The officers had probable cause to arrest the defendant and Townsoner in that they had received a radio bulletin which described in detail the robbery suspects and the stolen vehicle. It is well established that the basis for an officer’s belief that a suspect has committed a crime can come from outside sources, i.e., a radio bulletin. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Williams v. State, 561 P.2d 570 (Okl.Cr.1977); and, Bowen v. State, 606 P.2d 589 (Okl.Cr.1980).

In respect to the evidence derived from the arrest, the discarded gun is admissible under the abandonment doctrine of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), or the plain view doctrine. Coolidge v. New Hampshire,

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Bluebook (online)
1981 OK CR 142, 636 P.2d 378, 1981 Okla. Crim. App. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nealy-v-state-oklacrimapp-1981.