Blanton v. City of Oklahoma City, M-77-81

• Decision Date: 12 August 1977
• Docket Number: No. M-77-81,M-77-81
• Citation: 568 P.2d 288
• Parties: Lloyd E. BLANTON, Appellant, v. The CITY OF OKLAHOMA CITY, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 288

568 P.2d 288

Lloyd E. BLANTON, Appellant, v. The CITY OF OKLAHOMA CITY, Appellee.

No. M-77-81.

Court of Criminal Appeals of Oklahoma.

Aug. 12, 1977.

An appeal from the Municipal Court of Record, Oklahoma City; Terry Pendell, Judge.

Bill Pipkin, Moore, for appellant.

Walter M. Powell, Municipal Counselor, Curtis L. Smith, Asst. Municipal Counselor, Oklahoma City, for appellee.

OPINION

PER CURIAM:

Appellant, Lloyd E. Blanton, hereinafter referred to as defendant, was charged, tried by jury and convicted of the offense of Driving Under the Influence of Alcohol, in violation of an Oklahoma City ordinance, in Oklahoma City Municipal Court of Record, Case No. 76-165736-1. Defendant was sentenced to ninety (90) days' imprisonment in the City jail, and assessed a fine of Three Hundred ($300.00) Dollars, and has perfected this timely appeal.

Briefly stated, the trial transcript shows that on July 23, 1976, at 9:40 p. m., Oklahoma City Police Officer Ed Smith, working with the Alcohol Action Safety Program, was driving south in the 7500 block of South Shields in Oklahoma City when up ahead he observed defendant's car traveling 35 miles per hour along the 55 miles per hour maximum four lane roadway. Defendant's car was straddling the broken line lane divider, weaving back and forth for several blocks and preventing cars behind defendant's car from passing. As defendant turned right, without signaling, Officer Smith turned on his emergency red lights. Defendant pulled into a private parking lot near a tavern and began to walk away from Officer Smith. When Smith approached him, he noticed a strong odor of alcohol on defendant's breath and about his person, said he was very unsteady on his feet and described his eyes as red and watery. Smith testified he had to physically help defendant into the patrol car so he would not fall down. Smith said he read the defendant his constitutional rights and his chemical test rights. Officer Smith described the defendant as, "Obviously intoxicated." On cross-examination Smith said the defendant told him he had a bad leg, but further testified, "It was my opinion that it was not only his bad leg that was causing his staggering."

Defendant tested 0.27% blood alcohol content on the breathalyzer, and the breathalyzer operator described the defendant as being very unsteady and sluggish, as having difficulty speaking, and as having a strong odor of alcohol about his person.

In his first assignment of error the defendant argues that the court erred when it twice failed to admonish the jury before two recesses were called, in violation of 22 O.S.1971, § 854. The first time occurred midway through the trial so a hearing could be held to determine the admissibility of the breathalyzer test results (Tr. 85). Defendant did not call the lack of admonishment to the court's attention, and offered no objection. The second time occurred after both sides rested, while the court and the attorneys met in chambers to discuss the instructions. Defendant did not object to the failure to admonish until court had reconvened, and then he asked for a mistrial. Defendant cites no case authority requiring reversal on this ground and no prejudicial conduct which might have resulted in an unfair trial. Therefore, we dismiss this assignment of error. Bryant v. State, Okl.Cr., 521 P.2d 402 (1974), and Lime v. State, Okl.Cr., 508 P.2d 710 (1973).

As his second assignment of error defendant argues that the prosecutor was improperly permitted to endorse and call a witness after the trial had commenced. He refers to calling an Oklahoma City planner who testified the incident in question occurred within the Oklahoma City city limits. Defendant did not ask for a continuance and made no claim of surprise or possible prejudice. See, Britt v. State, Okl.Cr., 285 P.2d 441 (1955), cited by defendant. In addition, defendant did not follow the rule as set out in Paschall v. State, 96 Okl.Cr. 198, 252 P.2d 175 (1952), in the second paragraph of the Syllabus:

"The trial court in the exercise of judicial discretion may permit the name of a witness to be endorsed upon the information even after the trial has commenced. If defendant's counsel is surprised at such action and such endorsement of an additional witness requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial and should file a motion for a postponement or a continuance in which he should set out the facts constituting such surprise, and the other evidence, if any, he could produce to rebut the testimony of such additional witness if the trial of the case was continued. Where he fails to do this the error, if any, is waived."

We therefore dismiss this assignment of error.

In his third assignment of error defendant contends that the trial court improperly admitted into evidence the city ordinances regarding the offense and punishment. He contends there was no evidence presented that the ordinance had not been modified, amended, or repealed; no evidence that the ordinances contained an enabling provision as directed by 11 O.S.1971, § 961.11; no evidence that the ordinances were passed by a majority of city counsel members; no evidence that the City Seal was affixed to the ordinances as directed by 12 O.S.1971, § 493; and other arguments relating to possible modification of the ordinances. Defendant does not argue that the above possibilities occurred; just that the prosecutor failed to prove that they did not occur. The main authority as cited by defendant, Johnson v. City of Tulsa, 97 Okl.Cr. 85, 258 P.2d 695 (1953), states in the third paragraph of the Syllabus as follows:

"In an appeal to this court where a consideration of a municipal ordinance is required, such ordinance must be reflected in the record, either by way of introduction in evidence in the trial court in accordance with and as provided by Tit. 12 O.S.1951, § 493, or set forth verbatim by the municipal court or court trying the case de novo, during trial, or in its findings, in judgment rendered, or the wording must have been agreed to by the parties and stipulation entered in the record during trial."

Typed copies of the two ordinances, each certified by the Assistant City Clerk, appear in the transcript (Tr. 153, 154), apparently as evidence of the originals which were introduced at trial (Tr. 18). It will be noted that when the ordinances were introduced at trial, defendant offered only a general objection. He did not complain then, and does not complain now, that his objections to the ordinances actually occurred. In light of defendant's general objection and lack of evidence of prejudice to him, we dismiss this assignment of error as harmless error, if error at all. Title 20 O.S.1971, § 3001. Thompson v. State, Okl.Cr., 453 P.2d 314 (1969).

In his fourth assignment of error defendant contends that the prosecutor failed to establish that the offense occurred within the city limits, by arguing that no maps, ordinances or testimony were transmitted to this Court to prove the venue question.

As authority he cites Goeppinger v. State, Okl.Cr., 414 P.2d 313 (1966), which says in Syllabus number four:

"Testimony of city police officers in municipal criminal court prosecution that offense of being in actual physical control of a motor vehicle while under influence of intoxicating liquor occurred on certain streets in the city of Tulsa, did not satisfy requirement that record reflect the offense occurred within corporate limits, for lack of proper showing of ordinance fixing limits. 12 Okl.St.Ann. § 493; 47 Okl.St.Ann. § 11-902."

However, Goeppinger goes on to cite with approval Sawyer v. State, Okl.Cr., 395 P.2d 589 (1964), which held that " . . . In order to sustain a conviction for a violation of Title 47 O.S. § 11-902, it is incumbent for the record to reflect that the offense occurred within the corporate limits of the City of Tulsa. The boundaries of the corporate limits of the City of Tulsa are fixed by the duly enacted ordinances of that City, and while it has been generally held that the trial Judge of a Municipality may take judicial notice of City Ordinances, it has also been uniformally held that the Court of Criminal Appeals will not take judicial notice of Municipal Ordinances; but that the Ordinance, or Ordinances, must be reflected in the record, either by way of introduction in evidence in the trial court in accordance with and as provided by Title 12 O.S.1951, § 493, or set forth verbatim by the Municipal Court or Court trying the case de novo, during trial, or in its findings, in judgment rendered, or the wording must have been agreed to by the parties and stipulation entered in the record during trial. . . . " (Citations omitted)

William Barthel, zoning technician for the city, was declared an expert witness and testified that the 7500-7800 blocks of South Shields are within the city limits, and the annexation ordinance (No. 6477) pertaining to that area was introduced in evidence. (Tr. 135)

Early in the trial the prosecutor offered into evidence "a certified copy of the City Annexation Ordinance making those areas in question within the corporate limits of the City of Oklahoma City." (Tr. 14) Defendant objected to said introduction, and the record reflects an off-the-record discussion, and then defendant's motion was overruled.

Officer Ed Smith testified that "the area in which the violation took place and where the subsequent arrest occurred is in the corporate limits of this City." (Tr. 16)

While the ordinance does not appear of record, it was properly introduced. This Court held in the recent case of Hanna v. State, Okl.Cr., 560 P.2d 985 (1977), that it is the duty of the appellant to see that the record filed is complete, and that where this is not done the assignment of error is dismissed. We therefore dismiss this assignment of error.

In his fifth assignment of error defendant contends that the...