Davis v. State, F--76--820

• Decision Date: 02 March 1977
• Docket Number: No. F--76--820,F--76--820
• Citation: 560 P.2d 1051
• Parties: Jackie DAVIS and Nita Davis, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1051

560 P.2d 1051

Jackie DAVIS and Nita Davis, Appellants, v. The STATE of Oklahoma, Appellee.

No. F--76--820.

Court of Criminal Appeals of Oklahoma.

March 2, 1977.

Rehearing Denied March 16, 1977.

An appeal from the District Court, Washita County; Weldon Farris, judge.

Jackie Davis and Nita Davis, Appellants, were convicted of the offense of Unlawful

Possession of Barbiturates with Intent to Distribute; their punishment was assessed at a term of two (2) years in the custody and control of the Department of Corrections of the State of Oklahoma and a fine of $500.00 for each defendant, and from said judgments and sentences a timely appeal has been perfected to this Court. Judgments and sentences are hereby AFFIRMED

Steven V. Swanson, Oklahoma City, for appellants.

Larry Derryberry, Atty. Gen., Douglas L. Combs, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Judge.

The Appellants, Jackie Davis and Nita Davis, hereinafter referred to as defendants, were charged, jointly tried before a jury and convicted in the District Court of Washita County, Case No. CRF--76--3 of the crime of Unlawful Possession of Barbiturates with Intent to Distribute. Punishment was assessed at a term of two (2) years in the custody and control of the Department of Corrections of the State of Oklahoma and a fine of $500.00 for each defendant. From judgments and sentences in accordance with the verdict the defendants have perfected their timely appeal.

Briefly stated the evidence adduced at trial is as follows: Washita County Deputy Sheriff James Cookerly testified that at approximately 6:15 p.m. on January 11, 1976, he and numerous other officers converged upon the rural home of the defendants in Washita County to execute a search warrant. Upon arrival the witness with Officer Mazurek went to the back porch and knocked on the door with his pistol and announced he was a deputy sheriff with a search warrant. The defendants could be seen inside the house and when they did not respond the officers began to kick the door. The defendants then opened the door and were told to lie on the floor for their own portection. No pills were found on the defendants or in their near vicinity and Cookerly stated he saw no handcuffs on the defendants until after pills were found down in the cellar inside a chimney. The pills were in a brown leather case which contained no identification. Cookerly further stated that when he approached to execute the warrant he did not know what was going to happen inside the house nor did he know who was in it. He and Sheriff Cooper were the only ones carrying handguns, all other officers being armed with rifles or shotguns. Cookerly had been to the home on at least one prior occasion to see if there were any known drug users visiting the location and the results were negative. At approximately 3:45 a.m. on the morning before the raid he took a confidential informant, who he knew was facing criminal charges for distribution of drugs, to the defendants' home to purchase drugs. Prior to the informant going into the house the officer made a body search of informant and thoroughly searched the informant's car. The informant was under continuous surveillance except while in the home. When the informant came back approximately 5 to 7 minutes later he had a plastic baggie containing 10 pills which, upon a field test, were found to contain barbituric acid. Cookerly did not know how many times the informant had been in the Davis home and did not know whether he kept a supply of drugs there. He also had no way of knowing the informant's reliability from past experience and stated that the informant was not altogether a respectable citizen. Cookerly further related that his investigation of the defendants commenced some two or three weeks prior to the execution of the search warrant and that he had heard that a juvenile female had stayed at the defendants' home for a few nights. He was also aware that the juvenile female came to the District Attorney's office and stated that the drugs taken in the raid belonged to her.

Washita County Deputy Sheriff Ron Mazurek, then testified that on the date in question he went to the defendant's home to execute a search warrant with Officer Cookerly. As Mazurek pulled up Cookerly jumped out of the vehicle and ran up to the back porch. When Mazurek reached the porch he heard Cookerly yelling 'Sheriff's Office, search warrant'. Mazurek then proceeded onto the porch and also announced his authority and purpose. When he approached the porch he could see Jackie Davis standing in the kitchen and making no more towards the door. The officers then began to kick the door and Mr. Davis opened it. Entering the kitchen both defendants were ordered to lie on the floor. Cookerly went on through the house and Mazurek remained with the defendants, watching the hallway and bedrooms. The officer testified that it was normal procedure when serving a search warrant to try to get in the house as quickly as possible to keep persons from disposing of narcotics. Guns were usually drawn for psychological effect since it doesn't give the person time to think about what he wants to do, including drawing a gun and using it. After the defendants were secured all rooms were quickly gone through and no other persons were found in the house. The house was then searched and pills were found in a brown overnight shaving kit in a hollow brick column in the basement. A bank bag containing a roll of money was found in the overnight kit along with the pills. The evidence was subsequently sealed and transported to a laboratory for examination. The officer further testified that he did not know anybody held a gun on the defendants after they found out the defendants were not dangerous. He further stated that there were approximately 900 pills in the kit.

Washita County Sheriff Harold Cooper then testified that he went to the defendants' home to aid in the execution of the warrant. Upon arrival he went to the front door of the home, knocked and announced that he was the County Sheriff. He waited 30 to 45 seconds and then forced the door since there was no response. When he gained entrance he found the two defendants lying on the floor. They were then given their Miranda rights and placed under arrest for 'probable cause of dispensing drugs.' He then stated that Officer Mazurek searched the basement and found the kit. On cross-examination Cooper testified that a juvenile female had told him and the Assistant District Attorney that the drugs found were hers. He further stated that he knew the informant had numerous drug charges pending against him and that informants were often procured from arrests that they were involved in. He further stated that all officers who took part in the raid were in plain clothes but were wearing jackets marked 'Washita County Sheriff's Department.'

Although the transcript as presented on appeal does not reflect the testimony of State Chemist Albert Gray, it does reflect that the testimony of Officer Cookerly was interrupted so that Albert Gray could testify and that he was examined, cross-examined and excused. The defendant's brief recites that the chemist testified that the pills found in the basement were Schedule III substances containing barbituric acid derivatives.

Gary Banks then testified that he was the owner of the property in question and that he had rented the house to the defendants in October and they were still living in the house. The state then rested.

The only witness who testified for the defense was Assistant District Attorney Ralph Emerson who testified that subsequent to the arrest a sixteen year old girl came to his office with her mother and stated that the drugs found in the house were hers. Emerson at that point advised the girl of her constitutional rights and her mother stated that she no longer wished to make a statement. The defense then rested.

The defendants' first assignment of error urges that the trial court erred in overruling the defendants' motion to suppress after the evidence presented showed that the affidavit for search warrant contained material misrepresentations made with intent to deceive and that said erroneous statements were material to probable cause.

The affidavit which served as the basis for the search warrant reads as follows James Cookerly, of lawful age, being first duly sworn upon his oath, desposes and states:

1. That affiant is a Deputy-Sheriff of Washita County, Oklahoma, and has been employed as Deputy-Sheriff of Washita County for a period of 4 months and previously 2 1/2 years with Clinton Police Department and is very familiar with drug terminology and drug traffic.

2. That on or about the 10th day of December 1975, an informant reported to the Washita County Sheriff's Office that he knew where drugs were being kept and dispensed and that he described the house located at Range 19W, Township 9N, Section 33 on the Northwest quarter southside of the road, the only livable house in that quarter section, but at this time no action was taken and informant was told to report back to the Sheriff when he knew for certain that drugs had been recently dispensed and were being kept at the above location.

3....