Blades v. State

Decision Date10 December 1979
Docket NumberNo. F-78-677,F-78-677
Citation619 P.2d 875
PartiesJames BLADES, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

CORNISH, Presiding Judge:

The appellant, James Blades, was convicted in the District Court, Okmulgee County, Oklahoma, with the offense of Unlawful Delivery of LSD. Punishment was set at twenty (20) years' imprisonment and a fine of Five Thousand Dollars ($5,000.00).

The evidence showed that on March 4, 1973, Dennis Dill, a paid informant for the Oklahoma State Bureau of Investigation, went to a drive-in in Henryetta, where he was approached by the appellant to purchase some mescaline. Dill indicated he would have to get some money. He drove to the home of OSBI agent Jack Lay, with whom Dill had worked on various drug investigations. Lay conducted a search of Dill and his car and then gave Dill the money necessary for the purchase.

Followed in a separate car by agent Lay and Officer Paul Clark, Dill returned to the drive-in and parked his car. He and the appellant entered another automobile where the appellant gave Dill two pink capsules in exchange for four one dollar bills. Dill placed the capsules in the wrapper of an empty Kool cigarette package. Agent Lay was parked about half a block away but was unable to observe the actual transaction.

Dill then drove to Lay's house, followed by Lay and Clark, where he gave Lay the cigarette package containing the two capsules. Again, agent Lay conducted a search of Dill and his car. Thereafter, both Dill and Lay initialed the cigarette package, and the evidence was placed in the trunk of Lay's automobile, where it remained until it was delivered to the OSBI crime lab in Oklahoma City. Upon analysis at the crime lab, it was determined that the capsules contained LSD.

I

The appellant first alleges that he was denied his constitutional right to a speedy trial. In Bauhaus v. State, Okl.Cr., 532 P.2d 434 (1975), this Court dealt with the right to a speedy trial, citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We adopted a balancing test when determining whether a defendant has been deprived of this right. Among the factors to be considered are the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant arising out of the delay.

Applying the criteria of Barker to the facts of this case, we must first consider the length of delay: two years and nine months. There is no doubt that a delay of such length is substantial enough to constitute a deprivation of a right to a speedy trial if analysis of the other factors shows that such a delay was unwarranted. See State v. Durham, Okl.Cr., 545 P.2d 805 (1976). With respect to the length of delay, the United States Supreme Court in Barker stated:

"Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." (Footnote omitted, 407 U.S. at 530, 92 S.Ct. at 2192)

In this case, the record reveals that the delay from the initial filing of the information on May 13, 1973, to dismissal on January 24, 1974, was not due to any bad faith on the part of the prosecution. Nor is there any indication that the delay was due to any deliberate attempt by the prosecution to hamper the defense. The reasons for the delay were the State's inability to procure the testimony of a chemist and the failure of informant Dennis Dill to respond on three occasions to subpoenas.

Following dismissal, the case was refiled on January 29, 1974. A timely preliminary hearing was held on March 20, 1974, and trial was set for September 15, 1975. There is no explanation in the record to account for the gap in time between the preliminary hearing and the trial date. However, we find it significant that the appellant, who was out on bond, made no assertion of his right to a speedy trial. As stated in Barker, "We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial."

The delay from September 15, 1975, to January 26, 1976, was due to the appellant's motion on September 5, 1975, to continue the trial to the next term of court. In Barker the Supreme Court emphasized that the right to a speedy trial may be affirmatively waived, stating, "We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside."

We note that the appellant asserted his right to a speedy trial on only one occasion, that being when he objected to the State's motion for continuance granted on September 19, 1973. At all other times the appellant either acquiesced in the delay or was himself responsible for the delay. Under these circumstances, we find that this factor weighs heavily against the appellant.

The fourth factor in the balancing test is prejudice to the accused. As stated by the Supreme Court in Barker :

"... Prejudice, of course, should be assessed in the light of the interests of the defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration, (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past...." (Footnote omitted, 407 U.S. at 532, 92 S.Ct. at 2193.)

Here, the appellant was free on bond, therefore, there was no oppressive pretrial incarceration. Although he may have suffered some anxiety during the delay, it was not of such a degree as to cause him to assert his right to a speedy trial. Finally, there is no assertion that the defense was hampered or prejudiced in any way. This is not a case where witnesses died, became unavailable or were unable to remember the pertinent facts. The only witness called for the defense was the appellant himself, and his defense was a denial of the drug sale. The record does not indicate that the appellant was unable to recall the facts surrounding the transaction. Based on the foregoing, it is highly speculative that the delay hampered the defense. We hold the appellant was not denied the right to a speedy trial.

II

Introduction of evidence of other crimes over appellant's objections is next alleged as error. Specifically, the transcript reflects that in response to questions by the prosecutor, informant Dennis Dill stated that he had purchased other pink capsules from the appellant on two prior occasions. This testimony was admitted on the theory that it showed a common scheme or plan.

Mere similarity of crimes is not enough to admit evidence of other crimes. In Atnip v. State, Okl.Cr., 564 P.2d 660 (1977), we stated:

"The State would try to bring the evidence in question in this case under the fifth exception stated above, that is, common scheme or plan. However, this Court cannot agree. A common scheme or plan contemplates some relationship or connection between the crimes in question.... The word, 'common' implies that although there may be various crimes, all said crimes must come under one plan or scheme whereby the facts of one crime tend to establish the other such as where the commission of one crime depends upon or facilitates the commission of the other crime, or where each crime is merely a part of a greater overall plan. In such event, the crimes become connected or related transactions, and proof of one becomes relevant in proving the other. However, evidence of other offenses should never be admitted under this exception when it shows that the accused committed crimes wholly independent of that charged." (Citations omitted)

Subsequently, in Oliver v. State, Okl.Cr., 568 P.2d 1327 (1977), we applied this language in a narcotics case with facts similar to the present case.

We find the prior drug sales were independent from the crime charged here and their admissibility was error. However, due to the overwhelming evidence of guilt, admission of this evidence could not have contributed to the finding of guilt, but is grounds for modification of the judgment and sentence.

III

Next complained of on appeal are several comments made by the prosecutor during closing argument. The appellant argues the trial court erred in permitting the prosecutor, over objection, to define reasonable doubt by way of an example. The comments complained of are as follows:

"Now,...

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