“[A]t the least, a probability existed that the property sought [that included a revolver used in an assault with intent to kill] was indeed at the residence of the defendant.”
How later courts described this case
- “[A]t the least, a probability existed that the property sought [that included a revolver used in an assault with intent to kill] was indeed at the residence of the defendant.”
Written by the judges who cited it.
The opinion
OPINION UPON PETITION FOR REHEARING
BLISS, Judge:
On November 3, 1976, this Court affirmed the conviction of the Appellant, Phillip Bollinger, for the crime of Assault and Battery with a Deadly Weapon with Intent to Kill. From this affirmation the defendant has perfected to this Court a timely Petition for Rehearing.
The defendant contends that this Court erred when it held that there was sufficient probable cause to justify the issuance of a warrant directed at the residence of the defendant. Briefly, the evidence revealed that the defendant forced his way into the home of Toni Anderson and, after a struggle, shot her in the side. Ms. Anderson ran out the back of her home and went to a neighbor’s house, while the defendant, after firing two more shots, went to the front of Ms. Anderson’s home and got into a late model blue automobile with a white vinyl top and opera windows. Ms. Anderson also observed that the defendant was wearing a dark T-shirt with a pocket and green jean-type pants and was carrying a small caliber, long barreled pistol. Also, Detective Robert W. Thompson of the Oklahoma City Police Department testified that he went to,the home of the defendant, at the direction of the victim, and found a white over blue 1975 Grand Prix Pontiac with opera windows. At this point, Detective Thompson proceeded to obtain a search warrant for the residence of the defendant. The items listed in the search warrant consisted of a navy blue T-shirt with a single pocket, green pants, brown cotton gloves, a .22 caliber blue-steel long barreled revolver, and a box of .22 caliber long rifle cartridges. In holding that there was sufficient probable cause to believe that these items were on the described premises, we cited as authority, United States v. Rahn, 511 F.2d 290 (10th Cir. 1975) and, United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970). The defendant attacks this determination, contending that the cases on which this Court relied raised inferences much stronger than those raised by the circumstances in the instant case. However, neither of these cases professed to establish the minimum circumstances necessary for the issuance of a search warrant. Even so, in Lucarz, supra, it was determined that there was sufficient probable cause to believe that stolen property was in the residence of the defendant when consideration was given to the fact that the defendant had been absent from work for a period of time sufficient in length to have allowed him to hide the stolen property at his house and, when consideration was also given to the fact that the items were of a bulk and value which would require them to be hidden at a residence. We are of the opinion that the circumstances in the instant case are equally as strong as the inferences in Lucarz, supra. The defendant cites United States v. Bailey, 458 F.2d 408 (9th Cir. 1972) in support of his position that this Court erred in upholding the search warrant. However, a close reading of Bailey reveals that the reversal of the defendant’s conviction was predicated on a failure to demonstrate that the residence identified in the search warrant was, in fact, the residence of the defendant. The search warrant, among other things, sought clothing of the defendant described by persons who had observed the defendant during the robbery. FBI Agents had seen a codefendant at the residence described in the search warrant. However, the Court held that there was no probable cause to believe the clothing *1041 would be in that described residence in light of the fact that the FBI had failed to establish those premises as the residence of the defendant. In the instant case it was quite clearly established that the described premises was the residence of the defendant.
However, we are of the opinion that a determination of this issue is rendered moot when consideration is given to the fact that the clothing obtained in the search of the defendant’s premises was not necessary to sustain a conviction. The victim, Toni Anderson, positively identified the defendant as the person who entered her home and shot her. Thus, the admission of the clothing at trial was simply cumulative and, its admission, if erroneous, was certainly not prejudicial. Actually, in light of the fact that the defendant had been identified, the evidence of the clothing was relatively of no importance at all.
For the above and foregoing reasons the decision as previously rendered is hereby AFFIRMED and the Clerk of this Court is therefore directed to issue a Mandate Forthwith.
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA
HONORABLE CRESTON B. WILLIAMS, JUDGE
PHILLIP BOLLINGER, Appellant, was convicted of the crime of Assault and Battery with a Deadly Weapon with Intent to Kill; his punishment was assessed at a term of five (5) years imprisonment, and appeals. Judgment and sentence AFFIRMED.
TOM A. BOARDMAN DALLAS, TEXAS Attorney for Appellant LARRY DERRYBERRY, ATTORNEY GENERAL MICHAEL JACKSON, ASST. ATTY. GENERAL Attorneys for Appellee.
BRETT, P. J., and BUSSEY, J., concur.