Asher v. State

• Decision Date: 08 March 1976
• Docket Number: No. M--75--447,M--75--447
• Citation: 546 P.2d 1343
• Parties: Jimmy ASHER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1343

546 P.2d 1343

Jimmy ASHER, Appellant, v. The STATE of Oklahoma, Appellee.

No. M--75--447.

Court of Criminal Appeals of Oklahoma.

March 8, 1976.

Rehearing Denied March 29, 1976.

Jack B. Sellers, and Allen B. Mitchell, Sapulpa, for appellant.

Larry Derryberry, Atty. Gen., Robert D. McDonald, Asst. Atty. Gen., Kenneth Lisle, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Jimmy Asher, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Creek County, Case No. CRM--73--616, for the offense of Unlawful Possession of Marihuana, in violation of 63 O.S.1971, § 2--402. The jury fixed his punishment at six (6) months' imprisonment in the County jail, and from said judgment and sentence a timely appeal has been perfected to this Court.

In the proceedings before trial, defendant's motion to suppress the evidence was denied.

Wilbur Ginn testified that at approximately 6:40 p.m. on November 11, 1973, while visiting relatives at the Cherry Hill Apartments, Apartment number 206, in Sapulpa, he heard loud music coming from a nearby apartment. He stated that he then looked out his door and observed the defendant standing in the open doorway of Apartment number 207. According to the witness, he also smelled the odor of burning marihuana at this time. The witness closed his door when defendant turned to leave. Several seconds later Mr. Ginn reopened his door and noticed that the door to the other apartment was closed and that the odor of marihuana was greatly diminished. Mr. Ginn then testified that he was familiar with the odor of burning marihuana and that he was employed by the Owasso Police Department on November 11, 1973. He further stated that he notified Detective Clark of the Sapulpa Department of his observations and signed the affidavit for a search warrant late that night.

Tom Clark, a Detective with the Sapulpa Police Department, testified that on November 11, 1973, he, Sergeant Joe Collins, Charles Williams and Lieutenant Johnny Moore arrived at defendant's apartment with a search warrant. He testified that no one answered when he knocked on the door and therefore a passkey was used to enter the apartment. The witness stated that the defendant arrived while the search was in progress and was then served a copy of the search warrant. He further testified that he found a greenish brown leafy substance in a cigar box in a kitchen cabinet and that he transmitted the evidence to Mr. Bill Warden of the Sapulpa Health Department for analysis.

On cross-examination, Detective Clark testified that the search warrant was not posted on the door of defendant's apartment when the search commenced. He stated that it remained on his clipboard until defendant entered the apartment, at which time it was served on the defendant.

Sergeant Joe Collins, a Detective with the Sapulpa Police Department, identified the defendant as the person who entered the apartment while the search was in progress.

Charles Williams of the Sapulpa Police Department identified State's Exhibit No. 2 as a 'smoker type pipe' which he found in the closet in the back bedroom of defendant's apartment.

On cross-examination Officer Williams testified that a cigarette would loosely fit in the holder of the smoker and that he did not know if the device worked.

Lieutenant Johnny Moore, a police officer with the Sapulpa Police Department, testified that he assisted in the search of defendant's apartment conducted at about 10:30 p.m. on November 11, 1973. He stated that after being read his Miranda rights, defendant said that the marihuana found in his kitchen was strong and that he had grown it himself. The witness identified State's Exhibit No. 2 as a water pipe and stated that such devices are used in the consumption of marihuana.

On cross-examination Lieutenant Moore stated that the marihuana had been found in an unlocked box in a kitchen cabinet that anyone having access to the apartment could have opened.

Bill Warden, a registered sanitarian with the Sapulpa Health Department, testified that State's Exhibit No. 3 was tested and found to be cannabis sativa, commonly known as marihuana. He stated that he had performed the Duquenois reagent test on the substance and made a microscopic examination of it. On cross-examination Mr. Warden testified that he knew of no substance other than marihuana which would produce a positive reaction to the Duquenois reagent test. He further testified that the substance had the odor of marihuana.

On re-direct examination, Detective Clark identified State's Exhibit No. 3 as the greenish-brown leafy substance which was found in defendant's apartment. Defendant objected to the admission into evidence of State's Exhibit No. 3. Thereafter, the State rested.

The first witness for the defense was Jimmy Asher, the defendant. He testified that he had been married for four years and had one 13-month-old child. He stated that he worked at the Bartlett Collins Glass Company in Sapulpa until he entered the Army in 1969. He further testified that he served in Viet Nam and was awarded the Purple Heart, the Bronze Star and an Army commendation medal. After discharge from the service he returned to work at the Bartlett Collins Glass Company in Sapulpa. On November 11, 1973, he was working at Liberty Glass Company.

The witness further testified that when he left his apartment at approximately 8:00 p.m. on November 11, three people remained in the apartment and he noticed a man in a nearby apartment looking out of his door. He stated that while eating supper in a local restaurant he saw the three people who had been in his apartment drive past. He further stated that he had no knowledge of a cigar box containing a leafy greenish-brown substance. He testified that his statement at the time of the search, that he had grown the marihuana, was untrue and was a 'smart aleck' remark.

On cross-examination defendant testified that Terry Williams, Jim White and Danny Cue had arrived at the apartment with him at about 6:30 p.m. He stated that he did not smell burning marihuana in his apartment that night but that he did burn some incense.

The final witness for the defense was Dr. Paul Mooney, an Assistant Professor of Biochemistry at the Osteopathic College in Tulsa, who testified that he had performed the Dequenois reagent test on several different spices and coffees supplied him by defense counsel. He stated that he obtained a positive reaction to some of the types of coffee. A defense request that Dr. Mooney be permitted to perform these tests in court was denied.

The defendant raises three assignments of error. In the first assignment of error he maintains that the trial court erred in failing to properly instruct the jury as to the legal requirements necessary to sustain a conviction for unlawful possession of marihuana as requested by the defendant. The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court, provided that the instructions given fairly and correctly state the applicable law. Barber v. State, Okl.Cr., 388 P.2d 320 (1963); Bradshaw v. State, Okl.Cr., 510 P.2d 972 (1973); Turman v. State, Okl.Cr., 522 P.2d 247 (1974). We find that the instructions given in the instant case fairly and correctly state the applicable law. Accordingly, we find the defendant's first assignment of error to be without merit.

The defendant's second assignment of error is that the search warrant under which the marihuana was seized was invalid because a proper affidavit was not made and because the warrant was not served as required by law.

...