Cunningham v. State

Decision Date05 September 1979
Docket NumberNo. F-78-376,F-78-376
Citation600 P.2d 337
PartiesRichard CUNNINGHAM, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BRETT, Judge:

On November 28, 1977, the appellant, Richard Cunningham, was convicted by a jury of the offense of Conspiracy to Possess Marihuana With the Intent to Distribute. The trial was conducted in the District Court, Alfalfa County, Oklahoma, the Honorable Ray Dean Linder, Associate District Judge, presiding. On January 11, 1978, the appellant was sentenced to a term of seven (7) years' incarceration in the State penitentiary and fined Five Hundred Dollars ($500.00). The appellant is presently free on a $10,000.00 appeal bond. This Court affirms the judgment and sentence for the following reasons.

In the summer of 1976, Deputy Max Hazard, of the Alfalfa County Sheriff's Department, was assigned to work with an informant in relation to drug traffic in Alfalfa County. Specifically, Deputy Hazard was to keep surveillance on the informant who was to purchase narcotics and drugs from criminal elements in the county. On August 23, 1976, Deputy Hazard attached a recording device to a telephone in the informant's residence. The informant then made telephone calls to the appellant and one of the co-defendants in the case. This same procedure was followed on August 24, 1976. These recordings were played to the jury at trial over the objections of the appellant. The content of the conversations disclosed that the appellant frequently dealt in narcotics and drugs and obtained them through a supplier in El Paso, Texas. The conversation admitted into evidence at trial further revealed that the appellant agreed to examine and, if the quality was good, purchase 50 pounds of a 100 pound shipment of marihuana to be delivered from El Paso on a future date.

On September 10, 1976, the 100 pounds of marihuana was delivered to the home of one Jimmy K. Siler in Alfalfa County. From the evidence introduced at trial, it appears that the appellant examined the marihuana, smoked one sample cigarette, and then told other parties who were present to take one-half of the marihuana into the residence at that location. That evening, a search warrant was issued, ordering a search of the Siler house. This warrant was issued by the Honorable F. B. H. Spellman, who was appointed Associate District Judge of Alfalfa County on January 15, 1971, by the Chief Justice of the Oklahoma Supreme Court. Judge Spellman at the time of his appointment and since, has been a resident of Woods County. The warrant was issued in Woods County to be served in Alfalfa County. On September 11, 1976, at approximately 5:00 a. m. to 5:30 a. m., the search warrant was served and the marihuana was seized. The information was filed in the Alfalfa District Court on December 13, 1976.

A preliminary hearing was conducted on June 23, 1977, in the Alfalfa County District Court, Judge Spellman presiding. The appellant's first assignment of error is that Judge Spellman was not a properly appointed judge of the Alfalfa County District Court and, therefore, had no authority either to issue the search warrant or to preside at the preliminary hearing. The appellant states in his reply brief that a motion to disqualify Judge Spellman was filed prior to the preliminary hearing. Our examination of the record filed with this Court on July 11, 1978, and the court minutes, fails to substantiate this claim. It is the responsibility of the defense attorney to preserve grounds for reversal in the record and failure to do so will generally be fatal to an appeal. See Griffin v. State, Okl.Cr., 453 P.2d 278 (1969); West v. State, Okl.Cr., 433 P.2d 850 (1967); Fields v. State, Okl.Cr.,364 P.2d 723 (1961). This Court will not assume facts not in the record and must conclude that no such motion was filed, and that the issue is raised for the first time on appeal.

Whether or not the appellant's contention would have been valid if it had been timely raised, both this Court and the Oklahoma Supreme Court have held on numerous occasions that the acts of a de facto judge have the same status as the acts of a de jure judge. See Bennett v. State, Okl.Cr., 448 P.2d 253 (1968); Cox v. State, 89 Okl.Cr. 256, 206 P.2d 1005 (1949); Morgan v. State, 66 Okl.Cr. 205, 90 P.2d 683 (1939); Sheldon v. Green, 182 Okl. 208, 77 P.2d 114 (1938); Oklahoma Transp. Co. v. Lewis, 177 Okl. 106, 58 P.2d 128 (1936); Layne v. State, 23 Okl.Cr. 36, 212 P. 328 (1923). The appellant's first assignment of error is without merit since the issues presented were not timely raised in the court below.

The appellant's second assertion of error is that the search warrant was issued in Woods County to be served in Alfalfa County. The defendant contends that this is a violation of 22 O.S.1971, § 1225, which reads:

"If the magistrate be thereupon satisfied of the existence of grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him, with his name of office, to a peace officer In his county, commanding him forthwith to search the person or place named, for the property specified, and to bring it before the magistrate, and also to arrest the person in whose possession the same may be found, to be dealt with according to law." (Emphasis added)

The defendant cites Bohannon v. State, 66 Okl.Cr. 190, 90 P.2d 675 (1939), for the proposition that a retired judge of one county, who has been temporarily appointed to serve as an Associate District Judge in another county, is without authority to issue a search warrant for service outside the county where he resides even when said appointment was to serve in the county where the warrant was to be served. The defendant concedes in his reply brief, however, that the statute may as readily be construed to mean that a judge shall only issue search warrants for service in the county where he presides, not that in which he resides. We opt for that construction allowing any District Judge, Associate District Judge, or Special Judge, to issue search warrants to be served any place in the judicial district where such judge may be presiding at the time. This construction is consistent with the fact that a District Judge's authority to act as a magistrate is coextensive with the boundaries...

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4 cases
  • Hayes v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 28, 1987
    ...Judicial proceedings are clothed with a presumption of regularity, absent some specific showing to the contrary. See Cunningham v. State, 600 P.2d 337 (Okl.Cr.1979). This contention of error is Lastly in the supplemental brief, appellant contends that error was committed when the trial cour......
  • Wilson v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 27, 1988
    ...have been issued in Comanche County since Comanche and Oklahoma counties are not in the same judicial district. See Cunningham v. State, 600 P.2d 337, 339 (Okl.Cr.1979). The Comanche County Magistrate did not have jurisdiction to issue a search warrant to be served in Oklahoma County. We fi......
  • Foster v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • August 12, 1987
    ...issue a search warrant to be served any place in the judicial district where that judge may be presiding at the time. Cunningham v. State, 600 P.2d 337 (Okl.Cr.1979). Both Cleveland and McClain Counties are in District No. 21 (20 O.S.1981, § 92.22). Concerning the style of the affidavit and......
  • Fiddler v. State, M-84-61
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • November 6, 1985
    ...preserved in the record and properly raised on appeal will not sustain an assignment of error. This Court stated in Cunningham v. State, 600 P.2d 337, 339 (Okl.Cr.1979): It is the responsibility of the defense attorney to preserve grounds for reversal in the record and failure to do so will......

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