Newton v. State, F-89-927

• Decision Date: 31 December 1991
• Docket Number: No. F-89-927,F-89-927
• Citation: 824 P.2d 391
• Parties: Edward Lemuel NEWTON, Jr., Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 391

824 P.2d 391

Edward Lemuel NEWTON, Jr., Appellant, v. STATE of Oklahoma, Appellee.

No. F-89-927.

Court of Criminal Appeals of Oklahoma.

Dec. 31, 1991.

Rehearing Denied Feb. 4, 1992.

An appeal from the District Court of Washington County; John G. Lanning, District Judge.

Edward Lemuel Newton, Jr., Appellant, was tried by a judge for the crime of Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute and Unlawful Possession of Drug Paraphernalia in Case No. CRF-87-251 and CRF-87-584 in the District Court of Washington County before the Honorable John G. Lanning, District Judge. The judge sentenced appellant to twenty (20) years imprisonment, with thirteen (13) years suspended and various fines totalling $12,104.00 for the Possession With Intent to Distribute charge. For the paraphernalia Bruce A. Peabody, Bartlesville, for appellant.

charge, appellant was fined a total of $1,104.00. From this judgment and sentence, appellant appeals. AFFIRMED.

Robert H. Henry, Atty. Gen. of Oklahoma and Diane L. Slayton, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Judge:

Edward Lemuel Newton, Jr., was tried by a judge for the crime of Unlawful Possession of a Controlled Dangerous Substance with Intent to Distribute and Unlawful Possession of Drug Paraphernalia in violation of 63 O.S.Supp.1987, §§ 2-401 and 2-405, respectively, in Case No. CRF-87-251 and CRF-87-584 in the District Court of Washington County before the Honorable John G. Lanning, District Judge. The judge sentenced appellant to twenty (20) years imprisonment, with thirteen (13) years suspended and various fines totalling $12,104.00 for the Possession With Intent to Distribute charge. For the paraphernalia charge, appellant was fined a total of $1,104.00. From this judgment and sentence, appellant appeals.

Appellant's first three propositions relate to the issuance of the search warrant. On August 7, 1987, Detective Gardella presented an affidavit to the magistrate in order to get a warrant issued for the search of appellant's residence and car. The facts and circumstances alleged in the affidavit were based on hearsay statements from Charles Jackson, a named informant. The judge found probable cause and issued the search warrant.

On November 24, 1987, following a hearing on appellant's Motion to Quash and Motion to Suppress, the examining magistrate determined that the affidavit for the search warrant stated no facts that supported probable cause and sustained appellant's motions. The State, pursuant to 22 O.S.Supp.1987, § 1089.1 et seq, appealed this decision. The reviewing judge, the Honorable J.R. Pearman, orally entered an order reversing the examining magistrate and remanded the matter for further preliminary examination. Subsequently, after this Court entered an order staying the proceedings until a written order was entered, Judge Pearman filed a written order on December 23, 1987.

As his first proposition, appellant asserts that the affidavit in which the search warrant was issued failed to show probable cause for issuance of the warrant. Specifically, appellant argues that the affidavit was missing sufficient information and circumstances about Charles Jackson's veracity and basis of knowledge because it did not state that he was a prior felon.

The standard for review for the validity of a search warrant is the totality of circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); accord Langham v. State, 787 P.2d 1279 (Okl.Cr.1990). Under the totality of the circumstances approach, the task of the issuing magistrate is to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Langham at 1281, quoting Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332-33, 76 L.Ed.2d at 548. The reviewing court's duty is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Id.

In the present case, the affidavit was totally based on hearsay from Charles Jackson, a disclosed informant. In the affidavit, Detective Gardella stated that Charles Jackson gave him the information in exchange for a favorable recommendation on his pending criminal charge. The affidavit revealed that Mr. Jackson had observed people asking appellant for cocaine and had seen the exchange of money between them. Further, he provided a detailed description of the residence with specific directions to appellant's bedroom. He also stated that the cocaine was generally kept in appellant's maroon bathrobe pocket.

The specificity of the details provided by the informant shows he had personal knowledge. Regarding the omission of the fact that the informant was a felon, appellant has not established by a preponderance of the evidence that the affiant knowingly and intentionally, or in a reckless disregard for the truth, made a false statement in the affidavit. Hines v. State, 684 P.2d 1202, 1204 (Okl.Cr.1984). The failure to disclose the fact that the informant had a record is not per se proof of unreliability. This, along with the fact that the Judge had knowledge that a charge was pending against the informant, leads us to find that there was a substantial basis for the issuance of the search warrant.

Additionally, in this proposition, appellant urges this court to reexamine our decision in Langham and reject the Gates standard. For the reasons articulated in Langham, we again accept the Gates rule. This assignment is without merit.

Because appellant's second and third propositions are so intertwined and confusing, the various discernable arguments will be addressed together. Appellant's arguments generally concern the interpretation and constitutionality of 22 O.S.Supp.1987, § 1089.1 et seq., and the difference between the requirements and procedure for appeals under the old Rule Six of our Court Rules versus its codified version in Section 1089.1 et seq. See Section VI, Rules of the Court of Criminal Appeals, 22 O.S.1981, Ch. 18, App.

First, appellant challenges the reviewing judge's jurisdiction over the examining magistrate. He claims the Oklahoma Constitution gives district courts unlimited original jurisdiction and does not give any other district judge greater or superintending jurisdiction. Okla. Const. art. 7, § 7. Rather, only this court has appellate jurisdiction over district courts. 20 O.S.1981, § 40. Thus, appellant claims 22 O.S.Supp.1987, § 1089.1 et seq., violates the Oklahoma Constitution and Judge Pearman did not have jurisdiction and was acting beyond his scope of authority.

The Oklahoma Constitution states that the district court shall have unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this article. Okla. Const. art. 7, § 7. (emphasis added) Article 7, § 1, recognizes that the Court of Criminal Appeals is established by the Constitution, but explicitly gives the legislature the power to change or abolish the court. Okla. Const. art. 7, § 1. Article 7, § 4 provides "... That the Court of Criminal Appeals shall have exclusive appellate jurisdiction until otherwise provided by statute...."

Thus, it is clear that the legislature was well within their authority in enacting 22 O.S.1981, § 1089.1 et seq., and giving a lower court review authority or jurisdiction. We find Section 1089.1 et seq. is not violative of the Oklahoma Constitution and the judge was not acting beyond the scope of his authority.

Next, appellant asserts that Judge Pearman's written order filed on December 23, 1987, was filed out of time. He states it was not filed within twenty (20) days from the filing of the State's application to appeal as mandatorily required by 22 O.S.Supp.1987, § 1089.2(C). Section 1089.2(C), in pertinent part, states:

The presiding judge shall assign the application to another district judge or associate district judge within the same judicial administrative district, and shall order the assigned judge to set said matter for hearing and decision within twenty (20) days from the filing of the written application to appeal. 22 O.S.Supp.1987, § 1089.2(C)

From the plain language of Section 1089.2(C), it is clear that there is no requirement that the decision must be in writing within twenty days. The State filed its written application to appeal on December 3, 1987. The judge announced his decision orally on December 9, 1987, well within the statutory time limit. This argument is without merit.

Third, appellant argues that the judge erred and his written order was jurisdictionally defective because in his order he failed to commit into writing the errors of law committed by the original magistrate. Rule 6.1(C) of our Court Rules requires the reviewing judge to execute a written order containing his findings of fact and conclusions of law along with directions as to the proper order to be issued by the magistrate. Section VI, Rules of the Court of Criminal Appeals, 22 O.S.Supp.1989, Ch. 18, App. Court rules have the same force and effect as a statute. 22 O.S.1981, § 1051(b). Thus, we agree that a reviewing judge must specifically set out his findings of fact and conclusions of law when he files his written order.

In this case, the judge did not specify his findings of fact and conclusions of law when he filed his written order on December 23, 1987. Judge Pearman orally stated his specific reasons for his decision and gave both the State and appellant notice that he was going to order the preliminary hearing to continue. (Tr. 42) The purpose behind requiring a written order is for this court's benefit on review so that we know the reasons for the ruling.

Next, appellant asserts that the judge exceeded his authorized scope of review by not giving deference to...