Pierce v. State

878 P.2d 369, 1994 WL 316903
CourtCourt of Criminal Appeals of Oklahoma
DecidedJuly 5, 1994
DocketF-92-793
StatusPublished
Cited by6 cases

This text of 878 P.2d 369 (Pierce 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
Pierce v. State, 878 P.2d 369, 1994 WL 316903 (Okla. Ct. App. 1994).

Opinions

OPINION

LANE, Judge:

Appellant, Carol Ann Pierce, was convicted of Conspiracy to Commit Murder and First Degree Murder, following a jury trial in the District Court of Pontotoc County, Case Number CRF-91-50, before the Honorable G.C. Mayhue. After returning a verdict of guilty, the jury recommended that Appellant be sentenced to ten (10) years for the Conspiracy and life in prison without possibility of parole for Murder. She has challenged her convictions and sentences raising three allegations of error: that the trial court erred in admitting her tape-recorded statement; that the prosecutor’s improper comments affected her right to a fair trial; and that the trial court erred in denying her demur to the evidence. We do not find that any error has occurred which requires relief from this Court. The judgment and sentence of the trial court is AFFIRMED.

Appellant’s husband, Preston Pierce (Preston) was murdered by Ronald Kellams (Kel-lams) and Tommie Rowland (Rowland). Appellant, her mother, Judy Harlin (Harlin), Kellams and Rowland were charged with the murder, and Kellams agreed to testify in exchange for a plea of life without parole.

Kellams was Harlin’s live-in boyfriend, and testified at trial he was contacted by Appellant to kill her husband. Appellant told Kel-lams her husband beat her and was cruel to her, and she wanted him killed. Kellams testified he talked to Appellant over a dozen times concerning the murder. Kellams then contacted his cousin, Rowland, to assist with the killing. Rowland agreed to do it for half of forty thousand dollars ($40,000.00) which Appellant agreed to pay to the two men. (Kellams was aware that Appellant and Preston had over ninety thousand dollars ($90,-000.00) in a joint account.)

Harlin gave Kellams one hundred dollars ($100.00), which she said came from Appellant. Appellant also gave Kellams a check for four hundred dollars ($400.00), which Harlin cashed after Kellams had difficulty cashing it. Harlin then gave the $400.00 to Kellams. Appellant and Harlin wanted the killing done quickly.

On November 2, 1990, Kellams talked to Preston about going to look at a hunting lease the next day. The day of the murder, Appellant called Kellams to tell him Preston had left the house and did not take a gun with him. Kellams then called Rowland, and was told by Rowland’s girlfriend that he was not there. Kellams attached a .22 automatic pistol to his leg with an Ace bandage and went to the lease with Preston. Rowland met the two at the lease. Kellams and Rowland pretended to hunt for a while and while Preston was looking away Kellams shot him twice. Rowland, worried Preston might still be alive, shot him under the chin. The men picked up the spent shells, threw the gun into a farm pond, buried Preston, drove his blazer away from the scene and ditched it. Kellams called Appellant and told her Preston was dead.

Sometime later, Kellams, Rowland, and Linton Pitts (Pitts) agreed to go into the marijuana-growing business. During one of their discussions, Kellams and Rowland began to talk about Preston’s murder in front of Pitts. Pitts informed the police, who dis[372]*372covered the body. Neither Kellams or Rowland ever received the promised $40,000.00 from Appellant.

Prior to her arrest, during an interview in her attorney’s office and in his presence, Appellant spoke with law enforcement personnel. She was advised of her Miranda rights by both her attorney and the law enforcement personnel although she had not been arrested at that time. Unbeknownst to Appellant or her attorney, the conversation was recorded by the officers. Neither Appellant nor her attorney inquired as to whether the conversation was being recorded, and they were not told of the recording. Likewise, the officers were unaware that Appellant’s attorney was also recording the conversation. Appellant denied participation in and/or any knowledge of her husband’s death, and told police she thought Preston was simply going to be kidnapped and beaten.

Appellant testified at trial and was convicted on both counts.

As her first allegation of error, Appellant claims the trial court erred in admitting her tape-recorded statement into evidence as the police used deception, fear, intimidation and coercion to elicit the statement, notwithstanding the presence of her attorney. We disagree.

The cases cited by Appellant all go to the voluntary and knowing waiver of Miranda rights when an accused has confessed. The State is correct in noting that there was no confession here, therefore the question of waiver, voluntariness, coercion, etc. is inappo-site. Both parties seem to miss the mark. The real inquiry here is whether there was some reasonable expectation on the Appellant’s part that the information provided to the officers would not be used against her in the event she was arrested and charged with the crime.

As we noted in Arnold v. State, 803 P.2d 1145, 1151 (Okl.Cr.1990) an individual has no constitutionally legitimate expectation that the person to whom he speaks will not relate the conversation to authorities either by repetition or by recording of the conversation. (Citing United States v. Caceres, 440 U.S. 741, 750-51, 99 S.Ct. 1465, 1170-71, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 749-51, 91 S.Ct. 1122, 1124-25, 28 L.Ed.2d 453 (1971).) Appellant’s claim now that she never expected the information given to officers during the interview in her attorney’s office to be used against her ignores the very nature of the interview process and the Miranda warnings given by both the officers and Appellant’s trial counsel. The real complaint here is that Appellant made the statement, and now wishes she hadn’t. That alone is insufficient to exclude it from evidence.

Unlike the Arnold case, there is no dispute here that the statement was voluntarily given. Trial testimony revealed the meeting with police was set up by Appellant’s counsel, Mr. Landrith (Tr.Vol. II, p. 353-54), and was actually done at Appellant’s request (Tr.Vol. III, p. 521). As Appellant agreed to talk to police, and especially since that conversation took place in her counsel’s office and presence, Appellant’s argument of coercion, intimidation, and fear is unsupported by the facts. Her claim of deception, wherein she claims the officers lied to her, is likewise irrelevant. Appellant cites no authority for the position that she has a right not to be lied to, and, on cross-examination, the officers in question admitted not only that they lied to Appellant but they were trained to do so (Tr.Vol. II, p. 424). Counsel’s identical objection and argument at trial was properly overruled. (Tr.Vol. II, p. 426) The trial court correctly found that counsel was present and able to advise Appellant had the interview deteriorated to threats and coercion. This argument is without merit.

Appellant next complains of prosecu-torial misconduct in the form of improper comments.

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DARITY v. State
2009 OK CR 27 (Court of Criminal Appeals of Oklahoma, 2009)
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1995 OK CR 80 (Court of Criminal Appeals of Oklahoma, 1995)
Applegate v. State
904 P.2d 130 (Court of Criminal Appeals of Oklahoma, 1995)
Pierce v. State
878 P.2d 369 (Court of Criminal Appeals of Oklahoma, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
878 P.2d 369, 1994 WL 316903, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-state-oklacrimapp-1994.