Blades v. State
Decision Date | 10 December 1979 |
Docket Number | No. F-78-677,F-78-677 |
Citation | 619 P.2d 875 |
Parties | James BLADES, Appellant, v. The STATE of Oklahoma, Appellee. |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
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.
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:
(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 :
"... (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.
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:
(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.
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:
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