England v. State, A--16863

• Decision Date: 08 March 1972
• Docket Number: No. A--16863,A--16863
• Citation: 496 P.2d 382
• Parties: Dennis Gene ENGLAND, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 382

496 P.2d 382

Dennis Gene ENGLAND, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--16863.

Court of Criminal Appeals of Oklahoma.

March 8, 1972.

Terry L. Meltzer, Tulsa, for plaintiff in error.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., Ray Parks, Legal Intern, for defendant in error.

BUSSEY, Presiding Judge:

Dennis Gene England, hereinafter referred to as defendant, and Connie Lee Curcie, hereinafter referred to as co-defendant Curcie, were charged, tried and convicted in the District Court of Tulsa County, Oklahoma, for the offense of Unlawful Possession of Marijuana; his punishment was fixed at a term of not less than two (2) nor more than seven (7) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the joint trial, Officer McDonald testified that he was assigned to the narcotics squad of the Tulsa Police Department and had been working in the capacity of an undercover agent for approximately a year and a half. On the evening of December 10, 1970, he, Officer Cartner, and two other officers went to the residence at 2752 South 96th East Avenue in the City of Tulsa, having previously obtained a search warrant for the premises. They knocked on the front door and the door was opened by co-defendant Curcie. They handed her the search warrant and entered the premises. Defendant and another subject named Rake were seated in the family room. They first searched the master bedroom of the residence and in doing so removed the mattress from the bed. Finding nothing, they started to put the mattress back on the bed whereupon co-defendant Curcie entered the bedroom and said, 'You might as well leave the mattress where it is. We have to tighten the bed up anyway.' (Tr. 12) Because of this request, the officers became suspicious, searched a heating vent hidden by the mattress and recovered eighteen packs of green vegetation. The eighteen packs marked State's Exhibit One, were introduced without objection.

Defendant, co-defendant Curcie and Rake were placed under arrest and advised of their constitutional rights. Officer McDonald advised co-defendant Curcie that, 'if there is any more stuff in the house you better tell me, because one bag is the same as twenty.' Co-defendant Curcie replied, 'there are some more--some stems in the kitchen were we manicure the stuff.' (Tr. 14) Officer McDonald and co-defendant Curcie went to the kitchen and she pointed to a bag under the sink. This bag, State's Exhibit Two, was introduced without objection. The defendant and co-defendant Curcie were allowed to get their coats prior to being transported to the police station. They both went into the master bedroom, took their coats and put them on. Upon arrival at the police station, defendant was taken to the Lieutenant's office to complete the routine booking procedure. While the Lieutenant was taking down the information, Officer McDonald had the two bags in his lap. He held one of them up and said to the defendant, 'What do you sell this for?' Defendant replied, '$15.00.' Officer McDonald stated, 'That is a little bit steep and it looks a little light.' Whereupon, the defendant replied that it is 'good stuff.' (Tr. 16--17)

The defendant stipulated that State's Exhibits One and Two were taken to the Tulsa City-County Health Department wherein samples from each sack were analyzed chemically and microscopically and in each case the sample was determined to be from the plant cannabis savita (marijuana).

Officer Cartner's testimony did not differ substantially from the testimony of Officer McDonald.

For the defense, co-defendant Curcie testified that she had lived at the address for approximately a year and a half. On the date in question, David and Tonda Hendricks, and Jay and Angel Felming were living with her and her children. She picked up her children at school and returned home at approximately 3:30 p.m., finding the other two couples had gone. She found stems in her sink and was afraid to put them down the disposal, so she put them in a bag and placed them in the garbage. Defendant arrived at about 8:30 p.m. and Rake about fifteen (15) minutes before the police arrived. She further testified that Jay and Angel were the last persons using the bedroom in which the marijuana was found. She denied telling the officer that 'we had manicured the stems.' She denied using marijuana or drugs and testified that she would not know marijuana if she saw it. Upon cross-examination, she testified that Officer McDonald had been in her home on three previous occasions saying that he had warrants for people she didn't know and had never heard of. She denied having conversations with Officer McDonald concerning drugs and narcotics previously. She testified that the defendant was 'living in the house' and stayed in the bedroom upstairs. She denied that she and the defendant got their coats from the master bedroom prior to going to the police department. She testified that she did not know how the marijuana got in the hearing vent.

The defendant did not testify nor was any further evidence offered in his behalf.

Officer McDonald was recalled in rebuttal and testified that in late February, 1970, he and an informer went to the residence attempting to buy narcotics. The co-defendant stated that 'We are out of LSD and weed.' The defendant was present during the conversation. The officer and informer asked the co-defendant where they could buy LSD or pot and was furnished the name of one Margo Weaver. They subsequently purchased LSD on two occasions from Mrs. Weaver. He further testified that in the latter part of August, 1970, they went to the address looking for a subject by the name of Adrian Moore, who was wanted on a federal fugitive warrant. They searched the entire house and found several persons who had previously been arrested for narcotics violations.

The first two propositions assert that the court erred in preventing the defendant from ascertaining the truth of the assertions contained in the affidavit for a search warrant, and, that the court committed reversible error in upholding the validity of the affidavit for search warrant. We need only to observe that the Record before this Court does not contain the search warrant or affidavit. The Transcript of Evidence taken at the Preliminary Hearing, which has been made a part of this Record, reflects that the copies of the warrant and affidavit were introduced into evidence, however, the same are not included in the Record. We have previously held that the burden is upon the defendant to ascertain the presence of exhibits, instruments, or other evidence, upon which he intends to rely before final submission of the Record for review. In King v. State, Okl.Cr., 456 P.2d 121, we stated:

'* * * Moreover, since the record does not reflect either the affidavit for the search warrant, or the search warrant itself, there is nothing preserved for review on appeal. In the first paragraph of the Syllabus of Winer v. State, 36 Okl.Cr. 316, 253 P. 1025, this Court held:

"Error is not presumed, but must be made to affirmatively appear in order to avail a defendant. Where a defendant contends that a search warrant is invalid, the burden is on him to establish the facts which render it invalid."

We further observe that the exhibits were introduced into evidence without objection by the defendant, thus preserving nothing for review by this Court. We, therefore, find these propositions to be without merit.

The next proposition contends that the court committed reversible error in overruling defendant's demurrer to the evidence at the...