Cavaness v. State

• Decision Date: 12 July 1978
• Docket Number: No. M-77-2,M-77-2
• Citation: 581 P.2d 475
• Parties: Gary Lee CAVANESS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 475

581 P.2d 475

Gary Lee CAVANESS, Appellant, v. The STATE of Oklahoma, Appellee.

No. M-77-2.

Court of Criminal Appeals of Oklahoma.

July 12, 1978.

As Corrected July 25, 1978.

Rehearing Denied July 31, 1978.

An appeal from the District Court, Washington County; Arthur J. Boose, judge.

GARY LEE CAVANESS, appellant, was convicted of the offense of Possession of Marihuana; was sentenced to sixty (60) days' imprisonment in the County Jail, and appeals. AFFIRMED.

Michael L. Fought, Bartlesville, Oklahoma NORML, amicus curiae by C. Rabon Martin, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., for appellee.

CORNISH, Judge:

Gary Lee Cavaness has appealed his conviction in the District Court, Washington County, of Possession of Marihuana. In his appeal he attacks the constitutionality of the statute under which he was convicted and raises several procedural errors. He also complains of the prosecutor's closing argument and alleges that he was denied a deferred or suspended sentence as punishment for asserting his right to a jury trial. The evidence presented at the trial showed that on May 1, 1976, the residence shared by the appellant and another person was burglarized and the appellant's roommate called the police. While in the residence, the police noticed signs of marihuana use. They completed their investigation at about 1:30 a. m. and left; but they returned at 8:00 a. m. with a search warrant. A small amount of marihuana was seized, along with some seeds and paraphernalia. The appellant and his roommate were arrested and charged with possession of marihuana. We affirm.

The appellant's first assignment of error is presented in a two-part argument. He asserts, first, that recent United States Supreme Court cases have firmly established that one has a constitutionally-protected right to privacy within one's home. He then argues that in order to justify a statute which violates that right the State must show a "compelling state interest." Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

The proposition that there is a constitutionally-protected right to privacy within one's home is supported by the United States Supreme Court's treatment of obscenity cases in the last few years. In Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), Justice Marshall, writing for a unanimous Court, cited with approval the following language from Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928):

". . . The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone the most comprehensive of rights and the right most valued by civilized man. . . ."

When Stanley was decided there was some question as to whether it was based on the right to privacy in one's home or on the First Amendment right to freedom of speech. But in subsequent cases, the Supreme Court made it clear that the First Amendment did not apply to obscenity. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973). Thus, Stanley can only rest on the constitutional right to privacy within one's home. United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973).

However, we do not find merit in the appellant's second proposition that is, that the State must show a compelling interest in order to justify a statute which invades the right to privacy. We believe that the protection of one's right to privacy in the home is best balanced against society's interest in the prevention of crime through strict adherence to the Fourth Amendment, rather than by separate inquiry into the justification of each criminal law.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." United States Constitution, Amendment Four.

In the instant case it is clear the the appellant and his roommate waived this protection of their right to privacy when the police were invited into their home. Once inside, the officers were not obliged to close their eyes to the obvious. We therefore find the first assignment of error to be without merit.

In his second assignment of error, the appellant asserts that the court improperly refused to permit him to introduce the preserved prior testimony of Dr. Dorothy Whipple, taken at the hearing on his motion to set aside the information. At that hearing, Dr. Whipple testified as an expert on marihuana and its effects upon the user and society. The appellant proposed to present Dr. Whipple's testimony to the jury "in mitigation of punishment." The trial court ruled that Dr. Whipple's testimony was irrelevant, and excluded it. Some argument was had concerning whether or not the appellant had exercised due diligence in attempting to locate Dr. Whipple; however, the court did not base its ruling upon that ground. A review of Dr. Whipple's testimony reveals that it in no way dealt with the use by the appellant.

We agree with the State that evidence of the effects of marihuana is not a proper subject for the jury's consideration, even in mitigation of punishment. Such evidence in our opinion would be an appropriate consideration for the legislature in its determination of what the range of punishment for possession of marihuana should be. But to allow the jury in a marihuana case to once again pass upon the issue after the legislature has done so would introduce elements of confusion and uncertainty. One jury in one case, after hearing such testimony, could decide that the danger is great and assess the maximum, while another jury, perhaps trying a co-defendant, could arrive at an opposite conclusion.

The cases cited by the appellant do not support his contention. Ex parte Tidwell, 95 Okl.Cr. 53, 239 P.2d 524 (1952), in not in point. In Dobbins v. State, 21 Okl.Cr. 403, 208 P. 1056 (1922), and Call v. State, 39 Okl.Cr. 264, 264 P. 643 (1928), the evidence sought to be introduced related directly to the defendants. In the instant case, the evidence is mere academic discussion, persuasive perhaps, but not an appropriate consideration for the jury.

The third assignment of error is that the appellant should have been permitted to call District Attorney John Lanning as a witness. The appellant sought to question him concerning the affidavit which was used to obtain the search warrant for the appellant's home.

In Brown v. State, Okl.Cr., 565 P.2d 697 (1977), we affirmed a long-standing rule that it is impermissible to go behind the face of an affidavit in an attempt to prove it erroneous. ¹ The appellant's allegations clearly reveal that this was his purpose in calling the District Attorney, and it was therefore not error to refuse to permit him to do so. The role of advocate and witness should be kept separated, and an advocate should be called as a witness only in circumstances of the utmost necessity. Brown v. State, Okl.Cr., 506 P.2d 1396 (1973). Because of the nature of the appellant's assertions, we find that the requisite necessity has not been demonstrated.

Fourth, the appellant contends that the trial court erred in granting the State's pretrial motion in limine, the purpose of which was to prevent the appellant from introducing evidence tending to show that the Bartlesville Police Department made no effort to investigate the burglary of the appellant's home after arresting the appellant on the marihuana charge.

It is, of course, obvious that whether or not the police investigated the burglary has no bearing upon the appellant's guilt or innocence; and, although that fact, if true, should be made publicly known, we are of the opinion that it is not a proper consideration for the jury, since it would be apt to arouse their sympathy and distract them from deciding the issues on the basis of the law and the facts of the case.

In Hopkins v. State, Okl.Cr., 506 P.2d 580 (1973), we stated that the question of the admissibility of evidence is one left to the discretion of the trial court. In that case, the question involved the introduction of allegedly gruesome photographs. Quoting Born v. State, Okl.Cr., 397 P.2d 924 (1964), we reiterated the rule that for inflammatory evidence to be admissible its probative value must outweigh its prejudicial effect. In the case before us, the evidence of the investigation or lack thereof of the burglary after the appellant's arrest has no probative value, and its prejudicial effect is clear. The trial court did not therefore abuse its discretion by denying admission of the proposed evidence of the appellant.

In his fifth assignment of error, the appellant complains of the admission of certain statements made by the appellant while being "processed" into jail. During the trial, Police Detective Nix identified State's Exhibit No. 26, which was never admitted into evidence, as the Police Department "master file" on Gary Lee Cavaness. This file contained a form bearing the appellant's name and address. Detective Nix testified that the address had been obtained by him directly from the appellant while at the jail. The address, 3117 Interurban Drive, Bartlesville, coincides with the place where the appellant was arrested and the marihuana discovered.

On direct examination, Detective Nix gave the...