Opinion
No. F-82-706.
November 21, 1983.
An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.
Dennis Ray Simpson, appellant, was convicted of Robbery by Fear, Case No. CRF-81-4453, in Tulsa County District Court, punishment was set at five (5) years' imprisonment and he appeals. REVERSED and REMANDED for new trial.
Rebecca L. Adams, Sand Springs, Carol J. Russo, Tulsa, for appellant.
Michael C. Turpen, Atty. Gen., Alan B. Foster, Asst. Atty. Gen., Oklahoma City, for appellee.
MEMORANDUM OPINION
The appellant, Dennis Ray Simpson, was convicted in Tulsa County District Court, Case No. CRF-81-4453, of Robbery by Fear and was sentenced to five (5) years' imprisonment from which he appeals.
Since this case must be reversed and remanded, we will address only the appellant's last assignment of error in which, by overruling his motion to quash, suppress and strike his purported in-custodial confession, the trial court committed reversible error.
Briefly stated, the facts are that the appellant was arrested late on the night of December 18, 1981, by Officers Arrington and Day of the Tulsa Police Department. Simpson, intoxicated at the time of his arrest and during interrogation, signed a Certificate of Notification of Rights and then refused to speak, testifying, "I told them that I wouldn't give them any statements, I would like to have my attorney present and, um, they go mad, threw me — didn't throw me, but said — told me to get out of the room and I went to the next room." (Tr. 37) Upon moving to another room, the appellant's uncontroverted testimony is that at that time, he phoned his attorney. Later, knowing that Simpson had invoked his right to have counsel present during custodial interrogation, the detectives again subjected him to interrogation, whereupon he signed another waiver and a confession was obtained.
See Appendix.
In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), a similar fact situation as the present, the Supreme Court held that "an accused, . . . having expressed his desire to deal with the police only through his counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police." The record before us reflects the appellant did, in fact, request an attorney, the interrogation ceased and then he was called back again without first receiving counsel. In light of the foregoing, we REVERSE and REMAND for a new trial.
Corporal McSlarrow of the Tulsa Police Department testified as follows:
Q. You never heard him mention that he wanted an attorney present, is that your testimony?
A. That's my testimony, yes, ma'am.
Q. At any time during your questioning of him, did he mention an attorney?
A. Let me back up.
Q. Yes, sir.
A. Let me back up. Okay, I believe that at one point he did say that he wanted an attorney. I can't recall exactly.
Q. Yes, sir.
A. Okay, and I believe at that time I told him that if he, you know, this was all that there would be, only chance that he would have to give his side of the story.
Q. Yes, sir.
A. Okay, At this time, he withdrew even wanting to talk to an attorney at that time. (Tr. 22, 23)
CORNISH and BRETT, JJ., concur.