Bennett v. State

• Decision Date: 12 October 1977
• Docket Number: No. F-77-136,F-77-136
• Citation: 570 P.2d 345,1977 OK CR 303
• Parties: James L. BENNETT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 345

570 P.2d 345

James L. BENNETT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-136.

Court of Criminal Appeals of Oklahoma.

Oct. 12, 1977.

Rehearing Denied Nov. 2, 1977.

An appeal from the District Court, Kay County; Lowell Doggett, Judge.

Jack Shears, Jr., Shears & Shears, Ponca City, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, James L. Bennett, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Kay County, Case No. CRF-75-176, for the crime of Unlawful Delivery of Controlled Drug, in violation of 63 O.S.Supp.1975, § 2-401. Punishment was assessed at not less than two (2) years nor more than five (5) years in the State Penitentiary and a fine of Five Hundred Dollars ($500.00). From said judgment and sentence the defendant has perfected this timely appeal.

The evidence at trial is as follows: Between the hours of 6:00 and 7:00 p. m. on October 26, 1975, Vondeen Hayhurst, an undercover agent for the Ponca City Police Department, went to the residence of Steve Gregory. Monty Hankla was already present when he arrived and Steve Gregory arrived shortly thereafter. After a brief discussion about the possible purchase of some amphetamines, these three proceeded to a house at the northwest corner of Fifth and England Streets in Ponca City.

Monty Hankla went to the residence and arranged the purchase with a large, white male, whom he identified as the defendant. Then Mr. Hankla and the defendant went to a green Pontiac which was parked in the driveway and an exchange occurred. Mr. Hankla returned to the car with a small plastic bag containing approximately 100 white tablets. Vondeen Hayhurst, Steve Gregory and Monty Hankla then returned to the Gregory residence.

At approximately 11:30 that same evening, Officer Hayhurst gave the plastic bag of pills to Detective Ham, who retained possession of the pills until he mailed them to the Oklahoma State Bureau of Investigation Crime Lab. Dennis Goodpasture, a forensic chemist for the O.S.B.I., received these pills and his testimony revealed that his analysis showed them to contain methamphetamines.

Following this testimony, the State rested its case. The defendant elected to stand on his demurrer and rested.

As his first assignment of error, defendant contends that the magistrate erred in continuing defendant's preliminary hearing on two different occasions without just cause, resulting in prejudice to defendant and a denial of his right to a speedy trial. Defendant was not afforded his right to preliminary hearing until some four months and ten days after the date the crime was allegedly committed.

The record indicates that the preliminary hearing was originally scheduled for January 5, 1976. On said date, the preliminary hearing was continued until February 6, 1976, at the State's request. Then on February 6, 1976, the State moved for a further continuance of preliminary hearing for the reason that a material witness was unavailable. The continuance was granted, over objection of the defendant, until March 5, 1976.

The first continuance granted on January 5, 1976, was not objected to by the defendant. In Constabile v. State, Okl.Cr., 513 P.2d 588 (1973), we held that a defendant on bail must resist the continuance of the case or the presumption is that the delay was made with the consent of the defendant. The first continuance was therefor consented to, and any objection was waived.

The second continuance, however, was properly objected to, and therefore properly places the issue of speedy trial before this Court. In State v. Durham, Okl.Cr., 545 P.2d 805 (1976), this Court stated the factors to be considered in determining whether a defendant has been deprived of his right to a speedy trial: the length of the delay, the reason for the delay, the defendant's assertion of his rights, and the prejudice to the defendant.

In applying these factors to the case at bar, we find no merit to the argument of the defendant. Although defendant properly asserted his rights, the length of the delay was relatively short and for good cause. Further, although defendant alleges the delay "worked to his extreme prejudice" (defendant's brief, P. 14), he does not set out any factual basis for such a conclusion; and after reviewing the record we are not able to determine in what way the defendant was prejudiced. This assignment of error is without merit.

As his second assignment of error, the defendant urges that the examining magistrate erred in binding defendant over for trial on the charges filed in the information and that the trial court erred in overruling the defendant's motion to quash and set aside the information. As his first proposition under this second assignment, defendant claims that there was no evidence, absent the testimony of an accomplice, independently tending to connect defendant with the offense charged.

This places before us a reconsideration of the first question raised in State v. Wofford, Okl.Cr., 549 P.2d 823 (1976); that is, when the State relies upon an accomplice's testimony at a preliminary hearing, must the accomplice's testimony be corroborated by independent evidence. In Wofford, supra, the requirements of 22 O.S.1971 § 742 ¹, were extended to the preliminary examination, although by its expressed terms the Statute is limited to a conviction on a trial for the commission of a crime. In relying on the persuasive argument of the Alabama Court in State v. Smith, 138 Ala. 111, 35 So. 42 (1903), I failed to consider prior decisions of this Court, wherein we have repeatedly held that the State is not required to present evidence at the preliminary hearing which would be sufficient to convict at trial, and that there is a presumption that the State will strengthen its evidence at trial. See, Morgan v. State, Okl.Cr., 569 P.2d 474 (1977). See also, Ex parte Roberts, 31 Okl.Cr. 314, 238 P. 867 (1925); McAllister v. State, 97 Okl.Cr. 167, 260 P.2d 454 (1953), and Turner v. State, Okl.Cr., 549 P.2d 1346 (1976). I am now persuaded that the better view was expressed by my colleague Judge Brett, in his dissent in Wofford, supra. And for the reasons set forth, and in accordance with the authorities cited, in that dissent, the decision in Wofford insofar as it extends the requirements of 22 O.S.1971, § 742, to the preliminary examination is expressly overruled. The provisions of Section 742 relate only to a criminal trial on its merits in which a conviction can result. We are of the opinion and so hold that it cannot and should not be extended to apply to any other proceeding.

In passing we observe that there was sufficient evidence to corroborate the testimony of the accomplice Monty Hankla. The testimony of Vondeen Hayhurst supported all the material facts of the testimony of Hankla, except to positively identify the...