Caskey v. State ( 1972 )

BUSSEY, Presiding Judge:

Gary Dale Caskey, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Oklahoma County, Oklahoma for the offense of Burglary in the Second Degree, After Former Conviction of a Felony. His punishment was fixed at ten (10) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, Edward Taylor testified that on April 23, 1969, his home in Del City was broken into, and that several items of personal property were taken, including portable color television set, a stereo set, some clothing, and a gold wedding ring. He identified a television set and a gold band, which were introduced into evidence without objection. Edward Taylor testified that he left his home at approximately 11:30 a. m., on April 23, and upon his return at about 12:30, he discovered that the glass in the back door had been broken out, and the door was unlocked. a

Captain Cain, of the Del City Police Department, testified that in the early morning hours of April 24, 1969, he and other officers went to Apartment 302, Lakeview Towers Apartments, “to locate a boy by the name of Michael White or Michael Sims.” In the apartment, the officers found Robert Michael White, a/k/a Robert Michael Sims, Douglas Zolper, an individual named Grove, two other boys, and a girl. The defendant was lying across the bed in the back bedroom. A stereo set was found in the living room, the television set was found in the first bedroom, and the gold ring was taken from the hand of Robert Michael White.

Bradley Douglas Zolper testified that on April 23, 1969, he, Sims, and the defendant, drove to the Taylor house, where Sims broke out the back window. All three entered the residence and at Sims’ direction, the defendant took the television set and placed it in Zolper’s car. Sims took the stereo, and the three took the items to the Lakeview Towers Apartments, Number 302, which Zolper rented with three other boys.

The defendant testified that he had spent several nights at the apartment, and that on the day in question, Sims asked him to> go with him and Zolper to pick up a stereo and a television set that Sims stated he had bought from some relatives. He testified that he did not know that Sims boke into the house, and he picked up the television set at Sims’ instruction; he admitted two prior convictions for burglary.

Two character witnesses testified that, in their opinions, the defendant had a good reputation for truth and veracity.

The first proposition asserts that the trial court erred in failing to sustain defendant’s demurrer to the State’s evidence, as there was no corroboration of the accomplice. We have carefully considered the testimony of all the witnesses, and conclude that Zolper’s testimony was, in fact, corroborated. Zolper testified that Sims broke into the residence, and that the defendant entered and carried the television set to Zolper’s car. The television set and the stereo set were then carried to Zolper’s apartment.

Police officers testified that the stereo and television sets were found in the apartment within fourteen hours from the time of the breaking and entering. In the recent case of Nation v. State, Okl.Cr., 478 P.2d 974, we stated:

“It is the law in this state that an accomplice’s testimony need not be corroborated as to every material point. If the accomplice is corroborated as to one material fact, or facts, by independent evidence tending to connect the defendant with the commission of the crime, the jury may from that infer that he speaks the truth as to all.”

We further observe that, disregarding the testimony of the accomplice Zolper, there was sufficient evidence to support the jury’s verdict. Defendant was found in a room in the same apartment where the recently stolen television and stereo sets were found by the police officers, thus being in constructive possession. The defendant elected to testify, and admitted being at the scene of the crime and carrying the television set to the accomplice’s car. The question as to the defendant’s intent to steal therein was a proper question for the jury. We, therefore, find this proposition to be without merit.

The final proposition contends that the trial court erred in overruling the defendant’s motion to suppress the evidence, in that said evidence was obtained in violation of defendant’s constitutional and statutory rights. We need only observe that the Record reflects that the television set and the gold ring were admitted into evidence without objection by the defendant. The defendant did not file a motion to suppress at the beginning of the trial, and did not raise the issue until the State had rested. In the recent case of Fischer v. State, Okl.Cr., 483 P.2d 1162, we cited the case of Shirey v. State, Okl.Cr., 321 P.2d 981, as follows:

“ ‘ “An objection to evidence obtained by illegal search and seizure must be interposed at first opportunity and should be made either at beginning of trial by motion to suppress evidence or in course of examination as soon as it becomes apparent that state mill rely thereon, and defendant failing to make timely objection waives right to be heard on such questions.” (Emphasis ours.)’”

Although this proposition is improperly before us, in that it was not timely raised, we are of the opinion that the proposition should be discussed. Defendant argues, however, that although he had no posses-sory interest in the apartment, he retained standing to challenge the legality of the search.

It has long been the law of this state that the right to question the validity of a search is personal to occupant of the premises searched. Chanosky v. State, 52 Okl. 476, 153 P. 131 (1915). This rule of law has been followed by this Court until the recent case of Lindsey v. State, Okl.Cr., 488 P.2d 935, wherein we stated:

“Thus, we expressly hold a possessory interest in the premises searched or object seized is not the final test of standing to question the reasonableness of a search and seizure. Rather, a person has standing to challenge the legality of a search where he is the victim of the search, one against whom the search was directed.”

Our holding in the case of Lindsey, supra, was based upon the United States Supreme Court decisions in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, and Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797. We have carefully considered these opinions in light of the later case of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176. In Alderman, supra, the Court held that co-conspirators or co-defendants who had no possessionary interest in the premises searched could not assert their standing to object to an illegal search unless they were persons against whom the search was directed. The Court stated:

“What petitioners appear to assert is an independent constitutional right of their own to exclude relevant and probative evidence because it was seized from another in violation of the Fourth Amendment. But we think there is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion.

“The necessity for that predicate was not eliminated by recognizing and acknowledging the deterrent aim of the rule. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Neither those cases nor any others hold that anything which deters illegal searches is thereby commanded by the Fourth Amendment. The deterrent values of preventing the “incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.”

The Court, in limiting the exclusionary rule, was thus of the following opinion:

“ * * * suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing.”

As this Court is bound by the constitutional decisions of the United States Supreme Court, the holding of this Court in Lindsey, supra, is modified to the extent that a person who does not hold a posses-sory interest in the premises searched or object seized does not have standing to challenge the legality of a search unless he was specifically the one against whom the search was directed.

In the instant case, the search was directed against Michael Sims, and the defendant, therefore, does not have standing to object. In conclusion, we observe that the Record is free of any error which would justify modification or require reversal. The judgment and sentence is affirmed.

SIMMS, J., specially concurring. BRETT, J., dissenting.