Davis v. State
| Decision Date | 03 April 1990 |
| Docket Number | No. F-86-865,F-86-865 |
| Parties | Jerry Thane DAVIS, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant Jerry Thane Davis was tried by jury and convicted of Conspiracy to Distribute a Controlled Dangerous Substance (Cocaine) (Count I) in violation of 63 O.S.1981, § 2-408; Distribution of a Controlled Dangerous Substance (Cocaine) (Count II) in violation of 63 O.S.1981, § 2-401; Possession of a Controlled Dangerous Substance (Cocaine) (Count III) in violation of 63 O.S.1981, § 2-402; and Possession of a Weapon while Committing a Felony (Count IV) in violation of 21 O.S.1981, § 1287 in the District Court of Oklahoma County, Case No. CRF-85-5858. The Appellant was sentenced to five (5) years imprisonment and a five thousand ($5,000.00) dollar fine (Count I), five (5) years imprisonment and five thousand ($5,000.00) dollar fine, with fine suspended (Count II), two years imprisonment (Count III) to run concurrently with Counts I and II, three (3) years imprisonment (Count IV) to run concurrently with Counts I and II. From this judgment and sentence, Appellant has perfected this appeal. We affirm.
At approximately 10:30 p.m. on May 2, 1985, Oklahoma City Detectives James Cain and James Osborn met with two individuals named Rick Evans and Ron Roberts to purchase cocaine as part of an undercover narcotics investigation. Detective Osborn had previously arranged the meeting with Evans and Roberts in order to purchase one half ounce of cocaine. Meeting initially at an apartment complex on the south side of the city, Evans and Roberts urged the detectives to give them the money and wait at the apartment for them to return with the cocaine. Fearing that Evans and Roberts might steal the money, the detectives refused to wait and followed the men to the northwest side of town. Cain and Osborn then agreed to wait in the parking lot of an ice cream store on north MacArthur for Evans and Roberts to return with the drug. Arriving at the parking lot shortly before the store's 11:00 p.m. closing time, the detectives noticed the people in the store nervously looking out the windows at the two cars in the lot. Realizing that Evans and Roberts were becoming nervous about the situation, the detectives gave the men the money and agreed to wait for them at another restaurant across the street.
The operation was originally to have been a "buy/walk" with the detectives allowing Evans and Roberts to leave without arrest after the transaction. Therefore, the serial numbers of the money used in the transaction were not recorded. However, the twelve hundred ($1,200.00) dollars used to purchase the drug consisted of (12) twelve new one hundred dollar bills, folded over twice, with thousand dollar bundles stapled at one end, then paperclipped together. Detective Cain handed Roberts the $1,200.00 and Roberts was to return with a half ounce of cocaine in five minutes. Approximately 10 minutes later, Evans and Roberts returned with a plastic bag containing white powder which was later determined to be cocaine. Waiting for Evans and Roberts to leave the area, Cain and Osborn were contacted by a surveillance unit who had been monitoring the operation and informed the officers that a decision had been made to arrest Evans and Roberts. The men were subsequently arrested by another unit in the area.
A search of both men failed to yield the $1,200.00. Roberts agreed to cooperate with the officers and named Hugh Sprague as the individual from whom he had obtained the cocaine. Roberts provided directions to Sprague's residence. The officers obtained a search warrant for the Sprague residence and executed it immediately. Finding Hugh Sprague at home, the officers searched the house and questioned him about Evans and Roberts. Sprague admitted that Evans and Roberts had earlier obtained the cocaine from him, but the cocaine had been supplied to him by the Appellant. Sprague told the officers that the Appellant had delivered the cocaine earlier in the evening and returned later to pick up the money. He gave the officers a description of the Appellant and the car he was driving and possible locations where he could be found that night. Detective Cain radioed the information to Officer Yarborough and both officers proceeded to search for the Appellant.
Yarborough spotted Appellant's car in a parking lot of the club Faces. Relaying this information to Cain, Yarborough was directed to follow Appellant until Cain arrived. Appellant left the club for the nearby Denny's restaurant. Yarborough was then able to detain Appellant until Cain arrived. After Appellant identified himself he was placed under arrest for conspiracy to distribute cocaine. A search of Appellant yielded a small bottle containing white powder from his pocket and $1,400.00 cash, including the $1,200.00 used earlier by the detectives to purchase the cocaine. A search of his vehicle revealed a fully loaded .22 automatic pistol in the glove compartment. Discovered in the trunk was a blue gym bag containing scales, a sifter, a funnel, a plastic straw, a small bag of white powder later determined to be cocaine, and a larger bag of white powder later determined to be used as a cutting agent.
In his first and second assignments of error, Appellant argues that the information as to Counts I and III was fatally defective as it failed to set forth the elements of the charged offense and the acts committed by Appellant. We find that this issue is not properly before the Court. An objection to the sufficiency of the information cannot be raised for the first time on appeal unless some foundation was laid for the objection before the final judgment was rendered. Willis v. State, 64 Okl.Cr. 213, 78 P.2d 840, 841 (1938). Generally, when a defendant pleads to an information and proceeds to trial, he waives his right to attack the sufficiency of the information on appeal. Short v. State, 634 P.2d 755, 757 (Okl.Cr.1981). In the present case, after entering a plea of not guilty at the arraignment, Appellant filed a Motion to Quash Arrest, Dismiss, and Set Aside Information. (O.R. 17). The body of the motion alleges that the State failed to meet its burden of proof against Appellant by independent, competent evidence. The motion did not address whether the information contained the elements of the offense charged or whether the information correctly apprised the Appellant of what he must be prepared to meet. In substance it was a Motion to Quash for insufficient evidence rather than a defect on the face of the information. This Court remains committed to the general rule that a timely objection must be made on the record to preserve any alleged error for appellate review. Wood v. State, 748 P.2d 523, 525 (Okl.Cr.1987). A timely objection brings the alleged error to the attention of the trial court and provides an opportunity to correct the error at trial. Davis v. State, 753 P.2d 388, 392 (Okl.Cr.1988). Here, Appellant failed to properly demur to the information and has therefore waived review of this issue on appeal. Allen v. State, 734 P.2d 1304, 1306 (Okl.Cr.1987).
We have further reviewed the propositions for fundamental error and determine the test of the sufficiency of an information to be 1) whether it contains the elements of the offense charged and correctly apprises the defendant of what he must be prepared to meet, and 2) whether a conviction under the information would expose the defendant to the possibility of subsequently being put in jeopardy the second time for the same offense. Allen, 734 P.2d at 1306. This must be determined on the basis of practical rather than technical considerations; hair splitting is to be avoided. United States v. Moore, 556 F.2d 479, 483 (10th Cir.1977). Applying this reasoning, we hold that Appellant was adequately advised of the precise charges levied against him. Both Counts I and III clearly set forth the elements of the offenses of which the Appellant was charged in terms which would allow him to prepare an adequate defense. Further, a conviction for the offenses outlined in the information would be a bar to subsequent prosecutions for the same offenses. Therefore, we refuse to reverse on this allegation of error.
In his third assignment of error, Appellant contends that the evidence of conspiracy was insufficient to sustain the jury's verdict. He argues that the State failed to prove the existence of an agreement between the parties to commit an unlawful act and that he performed no overt act in furtherance of the object of the conspiracy. The statutory elements of a conspiracy are (1) an agreement to commit the crime...
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