Berry v. State, F-89-118

• Decision Date: 25 June 1992
• Docket Number: No. F-89-118,F-89-118
• Parties: Bobby Merrill BERRY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1002

834 P.2d 1002

Bobby Merrill BERRY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-89-118.

Court of Criminal Appeals of Oklahoma.

June 25, 1992.

An Appeal From the District Court of Carter County; Lee Card, Associate District Judge.

Bobby Merrill Berry, Appellant, was tried by jury and convicted of Driving Under the Influence, Second and Subsequent Offense, in violation of 47 O.S.Supp.1986, § 11-902, in the District Court of Carter County, Case No. CRF 87-351. The jury recommended punishment of one (1) year imprisonment and a fine of two hundred dollars ($200.) The trial court sentenced accordingly. From these judgments and sentences, this appeal has been perfected. AFFIRMED.

James English, III, Ardmore, for appellant.

Robert H. Henry, Atty. Gen., Steven Spears Kerr, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LUMPKIN, Vice-Presiding Judge:

Appellant Bobby Merrill Berry was tried by jury and convicted of Driving Under the Influence of Intoxicating Liquor, Second Offense, in violation of 47 O.S.Supp.1986, § 11-902, in the District Court of Carter County, Case No. CRF-87-351. The jury recommended punishment of one (1) year imprisonment and a two hundred dollar ($200.00) fine. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

Appellant contends in his first assignment of error that the evidence was insufficient to sustain a conviction for driving under the influence. While admitting that the evidence is entirely circumstantial, the State responds that the evidence was sufficient to sustain a guilty verdict. The standard of review in a criminal case based entirely on circumstantial evidence is whether the State's evidence tends to exclude every reasonable hypothesis other than guilt. However, the circumstantial evidence need not exclude every possibility other than guilt. When implementing this standard, we must consider the evidence and its inferences in a light most favorable to the State. Rudd v. State, 649 P.2d 791, 794 (Okl.Cr.1982).

Mr. Dan Dvorak testified at trial that on October 24, 1987, at approximately 8:00 a.m., he was in bed when he heard a vehicle driving along the street which sounded like it was dragging something. As the noise passed his house, he heard a loud bump and the sound of the engine dying. Looking out his window he saw a white pickup which had jumped the curb and run up against a tree. He observed only one person in the vehicle and assumed that it was a man by the short length of hair visible. Mr. Dvorak stated that he immediately got dressed and, less than five minutes after having first seen the vehicle from his window, left his house. As he did so, he noticed that the front hood of the pickup was raised and that there was no longer anyone in the pickup. Walking around beside the vehicle, he encountered the Appellant. Appellant told Mr. Dvorak that something was wrong with his vehicle. Mr. Dvorak then talked with the Appellant for approximately ten minutes. During that time no cars drove by the pickup, nor did anyone else approach the pickup. Mr. Dvorak testified that when he put his head inside the pickup he smelled alcohol and observed a beer can on the front seat. Mr. Dvorak testified that he and Appellant were the only two people at the pickup until the police arrived.

Johnny Johnson, Ardmore Police Department, testified that he arrived to find a pickup up against a tree, approximately three (3) feet off the roadway. As the Appellant emitted a strong odor of alcohol, had bloodshot eyes, slurred speech and very poor balance, Officer Johnson arrested him for driving under the influence. At a subsequent breathalyzer test Appellant registered a .17.

Appellant testified at trial that his ex-wife had been driving the pickup when she hit the curb. Following in a car behind her, Appellant pulled the pickup off the road. While he attempted to repair the pickup, she drove off in his car. Although Appellant was not actually seen to have driven the pickup, we find the evidence and the logical inferences therefrom, to be inconsistent with any reasonable hypothesis other than the defendant's guilt. Finding sufficient evidence to support the jury's verdict, this assignment of error is denied.

In his second and third assignments of error, Appellant argues that the State failed to introduce evidence, at the preliminary hearing, to support the prior convictions alleged on the second page of the information. As a result of this failure of proof, Appellant asserts that he was effectively denied a preliminary hearing on the prior convictions.

The record reflects that Appellant was originally charged with Driving under the Influence of Intoxicating Liquor, Second and Subsequent Offense. At the preliminary hearing, Appellant's demurrer to the State's first stage evidence was sustained and Appellant was bound over for trial on the lesser offense of public intoxication. The State appealed this decision to the District Court, the order of the magistrate was overruled and the case was remanded back to the magistrate for "further proceedings binding the defendant over for the charge contained in the State's information". (O.R. 19) Appellant was subsequently formally arraigned, at which time he entered a plea of not guilty, and the case was set for trial. At no time during these proceedings were any objections to the information raised by Appellant. ¹

Appellant argues that Article 2, Section 17 of the Oklahoma Constitution and 21 O.S.1981, § 251, entitle a criminal defendant to a preliminary hearing on prior offenses to be used for enhancement. The State does not dispute this but responds that any error occurring by the absence of a preliminary hearing on the prior convictions was waived by Appellant's failure to object to the information combined with his entry of a plea to the charges. As authority for this argument the State has relied on Hall v. State, 698 P.2d 33 (Okl.Cr.1985), and Murray v. State, 562 P.2d 1157 (Okl.Cr.1977). In both of these cases, an initial charge of first degree murder was amended to a charge of second degree murder and the defendant was not given a preliminary hearing on the amended charge. This Court found that the defendant's failure to file a plea in abatement or a motion to quash the amended information waived his right to demand such a preliminary hearing. In Hall, the Court further stated that the defendant's entry of a plea to the amended information affirmatively demonstrated his waiver of a second preliminary hearing.

We agree that Appellant's entry of a plea at formal arraignment and proceeding to trial without raising any objections to the information waived any error occurring by the absence of a preliminary hearing on the prior convictions. In Starr v. State, 479 P.2d 628 (Okl.Cr.1971), relying on Rapp v. State, 413 P.2d 915 (Okl.Cr.1966) we determined that any error arising from the lack of a preliminary hearing on second and subsequent charges was waived by the defendant's entry of a plea to the information and his proceeding to trial without timely offering any objections to the information. In Hambrick v. State, 535 P.2d 703, 705 (Okl.Cr.1975), we held that when a defendant, upon arraignment, pleads to the merits and enters on trial, he waives his right to preliminary examination, or if one was held, any irregularities therein. See also Blake v. State, 375 P.2d 270 (Okl.Cr.1962); Muldrow v. State, 16 Okl.Cr. 549, 185 P. 332 (1919).

Relying on Gessman v. State, 500 P.2d 1092 (Okl.Cr.1972), Appellant argues that his conduct did not constitute a waiver and that the prior conviction must be established by the prosecution at the preliminary hearing. In Gessman, the magistrate took judicial notice of the prior conviction instead of requiring the State to present proof. The State argued that any error was waived by the defendant's entry of a plea at arraignment. This Court held the waiver argument invalid determining that a defendant's right to be informed that he must face a charge as a second and subsequent offense was a substantive matter and not merely one of procedure. Therefore, it was error for the magistrate to take judicial notice of a substantive matter and such an error cannot be waived by the defendant's conduct.

Gessman is not proper authority upon which to base a resolution of this issue. Initially the unique facts of Gessman distinguish it from the instant case as the defendant entered his plea only after a motion to quash the information and a demurrer to the information had been overruled. Further, the holding of Gessman that the defendant's plea at arraignment does not constitute a waiver of his right to a preliminary hearing on the prior convictions is contrary to the prevailing case authority. In fact, it is the only case finding a waiver invalid under such circumstances. The decision neither cites relevant authority for its holding nor does it purport to overturn existing case law. Therefore, Gessman is overruled to the extent that it is inconsistent with the prevailing case authority holding that a defendant who enters a plea to the merits and...