LAY v. STATE

LAY v. STATE
1977 OK CR 237
568 P.2d 295
Case Number: F-77-184
Decided: 08/12/1977
Oklahoma Court of Criminal Appeals

An appeal from the District Court, Logan County; Ray Lee Wall, Judge.

Charles Lynn Lay, appellant, was convicted of the offense of Burglary in the Second Degree, After Former Conviction of a Felony; was sentenced to fifteen (15) years' imprisonment, and appeals. AFFIRMED.

Bob Ward, Guthrie, Charles Lynn Lay, pro se, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Catherine Gatchell Naifeh, Legal Intern, for appellee.

OPINION

PER CURIAM:

¶1 Appellant, Charles Lynn Lay, hereinafter referred to as defendant, was charged, tried by jury and convicted of the offense of Burglary in the Second Degree, After Former Conviction of a Felony, in Case No. CRF-75-27, in District Court, Logan County, Oklahoma. He was sentenced to fifteen (15) years' imprisonment and appeals.

[568 P.2d 296]

¶2 Briefly stated, the trial testimony indicates that two State Troopers stopped a light green Chevelle automobile driven by the defendant at 11:30 a.m., March 25, 1975, on a charge of reckless driving about three miles outside Guthrie.

¶3 Doug Allen testified he was driving past Pinebrook Apartments between 10:00 a.m. and 12:00 a.m. on the day in question when he noticed suspicious behavior from two persons standing near apartment No. 2 (Dr. Thomas' apartment). As they sped away in a light green Chevelle he wrote down their license number, XR-1110, the same as defendant's car, and then notified the police.

¶4 Alongside the highway near defendant's car, police found other items later identified as belonging to Dr. Thomas.

¶5 In his only assignment of error, defendant contends that the trial court erred in admitting the testimony of Trooper Tribble, because he questioned the defendant prior to reading him the Miranda rights. The defendant argues that the entirety of Trooper Tribble's testimony thus becomes inadmissible as "fruits of the poisonous tree." Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). We do not find this assignment of error to be supported by the facts of this case.

¶6 The defendant was arrested on a valid charge of reckless driving, and was issued a citation. The officers saw "in plain view" (State v. Baxter, Okl.Cr., 528 P.2d 347 [1974]) the altered 1975 Oklahoma license plate,

¶7 Defendant, in a separate pro se brief filed with this Court, argues that the United States Supreme Court's ruling in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), must apply. But Brown involved an unlawful arrest and incriminating statements by the defendant once he was in custody. Neither occurred in the case at bar.

¶8 For the above reasons we dismiss defendant's sole assignment of error and find that [568 P.2d 297] the judgment and sentence should be, and hereby is, AFFIRMED.

Footnotes:

1 The car was crossing the center line and traveling at a high rate of speed. "He liked to run over me," testified Trooper S.T. Boulding who was driving toward the defendant.

2 Altered in violation of 47 O.S. 1971 § 4-110 [47-4-110](2); the defendant's car already carried a valid 1975 tag.

3 According to Highway Patrol procedure.