Escobedo v. State, F--75--154

• Decision Date: 06 January 1976
• Docket Number: No. F--75--154,F--75--154
• Citation: 545 P.2d 210
• Parties: Richard ESCOBEDO, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 210

545 P.2d 210

Richard ESCOBEDO, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--154.

Court of Criminal Appeals of Oklahoma.

Jan. 6, 1976.

Bill Sexton, Lawton, for appellant.

Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.

BLISS, Judge:

Appellant, Richard Escobedo, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Comanche County, Case No. CRF--73--605, for the offense of Unlawful Delivery of Marihuana in violation of 63 O.S.1971, § 2--401, B--2. His punishment was fixed at a term of three (3) years' imprisonment and a fine in the amount of Three Thousand ($3,000.00) Dollars was assessed. From this judgment and sentence, a timely appeal has been perfected to this Court.

The State's first witness at trial was Dean Nowe who testified that he was a detective with the Narcotics Division of the Lawton Police Department and that on the 21st of September, 1973, he participated in a drug investigation involving the defendant. He stated he was assisted by Detective Jim Ingram and one Burt Nash, an informer who had been utilized on previous occasions, but who had also been arrested for sale of marihuana and thereafter released. The witness recalled the events of September 21, 1973, and stated that on that day he received a telephone call from Nash at approximately 5:30 p.m. whereafter he and Detective Ingram met at 8:30 at McMahon Auditorium located at Seventh and Ferris Streets, in Lawton, Oklahoma, and proceeded to 1926 Cache Road, Apartment B, the residence of Nash. He testified that at this time he positioned a Magnavox cassette tape recorder under a stack of foam rubber padding in Nash's apartment and thereafter gave Nash instructions. Shortly thereafter, Nash received a telephone call to which the witness listened, and the witness heard a voice which was later identified to be that of the defendant. The conversation he heard was as follows:

'I only have four pounds, but I am waiting for someone to bring the two more. . . . If I get the other two pounds, I will bring six; if I don't, I will bring the four. . . .' (Tr. 6)

Defendant asked Nash if Nash's friend was at the apartment and Nash replied, 'No, I am going to make the deal myself for him.' Thereafter, the defendant stated, 'I will see you in about ten minutes.' He further testified that shortly thereafter there was another telephone call and he again listened to the conversation in the same manner and overheard the defendant say, 'I got the other two pounds, . . . Do you have the money.' Nash then replied, 'Yeah, $750.00; right?' and the defendant replied, 'Yeah. . . . I will see you in about twenty minutes.' He stated that he then gave eight $100.00 bills to Detective Ingram who recorded the serial numbers, thereafter giving them to Nash. At approximately 9:10 p.m. he instructed Detective Ingram to position himself outside the apartment for surveillance and then the witness entered a large cabinet type closet which was located on the north wall of the living room of Nash's apartment. He stated that the closet was about five feet from the sofa in the living room and that he left the cabinet door open one half inch enabling him to observe the entire living room. He further testified that at approximately 9:30 p.m. he heard a car drive up whereafter Nash arose from the sofa where he had been sitting, turned on the hidden tape recorder and answered the door. He thereafter observed the defendant enter the apartment carrying a large brown paper bag and what appeared to be a pillowcase. Thereafter he observed a drug transaction between Nash and the defendant wherein approximately six pounds of marihuana were exchanged for $750.00. After the sale was consummated and the defendant about to leave, the witness emerged from the cabinet and arrested defendant. He testified that he seized the evidence and upon being shown State's Exhibit No. 1, he identified same as a box in which Detective Ingram had placed the seized evidence. He stated that he had witnessed Detective Ingram place the Lawton Police Department evidence seal, bearing the number 0384, over the flap of the box. Upon being shown State's Exhibit No. 2, a brown paper sack, and State's Exhibit Nos. 3, 4 and 5, packages of marihuana, he identified same as having been seized at Nash's apartment on September 21, 1973. He was thereafter shown State's Exhibit No. 7 which he identified as the pillowcase he had observed on that same evening.

An in camera hearing was then held during which time the court heard testimony regarding introduction into evidence by the State of the taped conversation which had been made on September 21, 1973. The court ruled that the defendant's objection to the admissibility of the tape would be overruled.

After the in camera hearing Mr. Nowe continued to testify and upon being shown State's Exhibit No. 8 he identified same as being the cassette which he had placed in the tape recorded in Burt Nash's apartment on September 21, 1973, and which was played between 9:30 p.m. and 9:42 p.m. He thereafter gave testimony relating to the custody of State's Exhibit No. 8.

The State's next witness was Jim Ingram who testified he was a Lawton police officer assigned to the Narcotics Division and had been so employed on September 21, 1973, at which time he had been involved in a drug investigation, at Burt Nash's apartment along with Dean Nowe and Burt Nash. He stated that on that evening Dean Nowe gave him eight $100.00 bills and that he had recorded the serial numbers, thereafter giving them to Burt Nash who put them in his shirt pocket. He testified that he again saw the bills after entering Nash's apartment after the defendant had been arrested and had observed Dean Nowe take those same bills off the defendant, and thereafter had checked the serial numbers against the serial numbers which he had recorded earlier, noting that they corresponded. Prior to entering the apartment, he testified, he had been at a point of surveillance to the apartment and had observed a car arrive, driven by the defendant with a white female, Diane Wilkinson, sitting on the passenger side. Defendant got out of the car, took something out of the car and, thereafter, took a bag out of the truck which he then carried inside the apartment. He further testified that he subsequently saw the sacks inside the apartment after the arrest had been made. Upon being shown State's Exhibit No. 1, he identified it as a box in which he had placed the seized evidence for mailing. He thereafter was shown State's Exhibit Nos. 3, 4, 5 and 7, and testified that he observed those exhibits on that evening and that he placed said exhibits into the box, State's Exhibit No. 1, for mailing to the Oklahoma State Bureau of Investigation Crime Laboratory. Thereafter he was shown State's Exhibit No. 8 and identified it as a cartridge which was used in the cassette tape recorded placed in the living room of Burt Nash's apartment on that same evening, and gave testimony relating to the custody of said exhibit.

Don Flynt testified that he was a forensic chemist with the Oklahoma State Bureau of Investigation, whereupon the defendant stipulated to his qualifications as a chemist. The defendant further stipulated that the chemist's examination of State's Exhibit Nos. 3, 4, 5 and 7 revealed the substances to contain marihuana. The witness was thereafter shown State's Exhibit No. 1, and identified it as the box in which he had received State's Exhibit Nos. 3, 4, 5 and 7.

Dean Nowe was then recalled as a witness at which time State's Exhibit No. 8, the cassette tape recorded on the evening of September 21, 1973, was played to the jury and in substance corroborated the testimony of Dean Nowe who had observed the drug transaction between the defendant and Burt Nash on that evening. The State then rested.

The defendant then took the stand and testified in his own behalf stating that he was acquainted with Burt Nash and about one week prior to September 21, 1973, had seen Burt Nash in Lawton, Oklahoma, at which time Nash had come over to his car and asked him if he could get him ten pounds of marihuana. The defendant testified that he had told Nash he was not sure that he could, but that he would look around for it. He stated that this incident occurred on Tuesday afternoon and subsequently on Friday afternoon Nash called him. At this time, he testified, he had told Nash that some man whom he did not know very well had gotten the marihuana and that the price would be $750.00. He testified that he had received no money for obtaining the marihuana for Nash and that he was only just taking it over to Nash's house. On cross-examination he denied making the statement on the tape that 'This stuff is better than I have been getting before.' He also denied making the statement, 'I have already got thirteen one-ounce lids out of this,' and further denied making the statement, 'I will be getting some good stuff in a few days.'

The dedendant predicates this appeal upon 12 assignments of error and in the first assignment of error the defendant contends the trial court erred in overruling the defendant's motion to quash the jury panel. The defendant alleges that the irregularities upon which the motion was based include the drawing of the jury not having been 'in open court,' absence of the physical presence or direction of the District Judge, failure to draw the jury at the statutorily prescribed time, and failure to record the names of the prospective jurors at the time of the drawing. The defendant urges that such facts illustrate the improper manner in which the jury panel was selected and that such irregularities prejudiced the defendant.

The procedure by which a jury is selected must be in conformity with statutory provisions in 38 O.S.171, § 18 et seq. The actual drawing of the prospective jurors' names from the jury wheel is governed by 38 O.S.1971, § 21. ¹...