SHEFFIELD v. STATE

SHEFFIELD v. STATE
1971 OK CR 336
488 P.2d 1327
Case Number: A-15866
Decided: 09/10/1971
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Tulsa County; Fred Nelson, Judge.

Robert Elliot Sheffield was convicted of the crime of Robbery with Firearms. He was sentenced to a term of ten (10) years in the state penitentiary, and appeals. Affirmed.

Curtis A. Parks, Appellate Public Defender, Tulsa, for plaintiff in error.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., for defendant in error.

BUSSEY, Presiding Judge:

¶1 Robert Elliot Sheffield, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Tulsa County, Oklahoma of the offense of Robbery with Firearms. His punishment was fixed at a term of not less than ten (10) years, nor more than thirty (30) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

¶2 Briefly stated, the evidence at the trial adduced that Dorothy Jean Cooper was working for the T. Roy Barnes Pharmacy No. 3, located at 221 East 46 Street, North, in Tulsa, Oklahoma. She testified that at approximately 10:00 o'clock p.m., on July 22, 1969, the defendant, whom she identified in the court room, handed her a note which state, "Give me your class A narcotics, uppers and money." (Tr. 23) After being handed the note, she testified that she handed the note to the pharmacist who was on duty at that time. She testified that defendant had very short fingers, which seemed unusual to her. She testified that the pharmacist put the drugs in the bag, and handed it back to the defendant, who stated: "Where is the money?" They were then told to lie down on the floor, which they did. She testified that defendant had a gun in his hand.

¶3 William Dickerson testified that he was a pharmacist at the same store as the previous witness. He identified the defendant as the robber, and his testimony was substantially the same as that of the witness Cooper.

¶4 Officer Beard testified that on the 31st day of July, 1969, he had the occasion to go to the 3100 Block of East Fifth Street in Tulsa, and after knocking on the door of the residence, the defendant came to the door. He testified that he placed the defendant under arrest, and conducted a search of the one-room apartment, which was approximately 10 feet by 12 feet in measurement. The search of defendant's room revealed a .22 caliber revolver, and two bottles of capsules. The defendant did not testify, nor was any evidence offered in his behalf.

¶5 The sole proposition asserts that the trial court erred in refusing to allow an Evidentiary Hearing outside the presence of the jury with regard to an illegal search and seizure, which resulted in the admission into evidence of the .22 caliber revolver and the cartridges. Although this proposition is improperly before this Court in that the defendant did not support this proposition by both argument and citation of authority, we are of the opinion that the trial court properly refused the defendant's request for an Evidentiary Hearing. The Record reflects that the trial court, in overruling the request for an Evidentiary Hearing, took judicial notice of the fact that there was a companion case filed in the District Court of Tulsa County, Oklahoma, No. CRF-69-1207, which involved the identical search and seizure, and was tried by the same attorney. The Court, at that time, stated as follows:

"The same gun was offered in evidence in the other case and was admitted in evidence. Counsel have had an abundance of time within which to have requested an evidentiary hearing and to have filed a motion to suppress and none has been filed in this case and for the first time it was raised when the State put on their last witness in the trial of this case and while the jury was present in open court. I will rule that the motion to suppress is not timely and will be overruled." (Tr. 62)

¶6 In the recent case of Fischer v. State, Okl.Cr., 483 P.2d 1162, we cited Shirely 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 will rely thereon, and defendant failing to make timely objection waives right to be heard on such questions." (Emphasis ours.)"

We, therefore, are of the opinion that the trial court properly ruled that the Motion to Suppress and the request for an Evidentiary Hearing was not timely presented.

¶7 In conclusion, we observe that the Record is free of any error which would justify modification or require reversal. The judgment and sentence is, accordingly, affirmed.

BRETT and NIX, JJ., concur.