Faubion v. State
| Decision Date | 29 September 1977 |
| Docket Number | Nos. F-77-260 and F-77-261,s. F-77-260 and F-77-261 |
| Citation | 1977 OK CR 302,569 P.2d 1022 |
| Parties | Billy Dale FAUBION and Joe Dean Brady, Appellants, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellants Billy Dale Faubion and Joe Dean Brady, hereinafter referred to as defendants, were charged in the District Court, Roger Mills County, Case No. CRF-76-6, with the offense of Larceny of Controlled Drugs, After Former Conviction of a Felony, and Larceny of Controlled Drugs, respectively, in violation of 63 O.S.1971, § 2-403. They were tried by a jury, convicted and sentenced to imprisonment in the State penitentiary for terms of fifty (50) years and ten (10) years respectively. The appeals of these defendants have been consolidated, and the defendants have perfected a timely appeal to this Court.
Briefly stated, the facts adduced at trial are as follows. On the afternoon of May 4, 1976, Eddie Tom Lakey, owner of the Cheyenne Professional Drug Store in Cheyenne, Oklahoma, locked his store at 5:30 p. m. When he returned the next morning at 8:30 a. m., he found the attic ladder down and a hole in the roof. Subsequent investigation determined that various drugs were missing. Also missing from the drugstore were a set of antique wooden scales used to measure out medicines and a pocket calculator.
On the morning of May 6, 1976, the defendants visited the home of Frances Louise Smith and her daughter Teresa Marie Hall at approximately 3:00 to 3:30 a. m. They had in their possession a plastic bag and a small black suitcase apparently containing various drugs. The defendants also had in their possession a set of scales and a pocket calculator. These drugs, as identified by Mrs. Smith, were of the same type as those reported missing from the Cheyenne Professional Drug Store. Defendant Faubion told them that he and defendant Brady had stolen the drugs from a drugstore in Cheyenne, Oklahoma, and requested her aid in selling said drugs. Mrs. Smith refused to aid in such an enterprise, and the defendants subsequently departed at 6:30 a. m. on the same morning.
On May 18, 1976, Ms. Hall accompanied the defendants to a motel where with the aid of a Physicians' Desk Reference, she helped the defendants identify various drugs purportedly belonging to defendant Brady, which she was later told by defendant Faubion were the same drugs which had been taken from the Cheyenne drugstore. Later, Ms. Hall accompanied defendant Faubion to an isolated location where various drugs were stashed. These drugs were later recovered and introduced at trial. The defendants were arrested on May 31, 1976.
On May 22, at the behest of agent Sid Cookerly of the OSBI, Mrs. Smith searched her home for possible evidence and found two bottles of pills which were subsequently introduced at trial. There was testimony at trial that both defendants had opportunity to leave the bottles in the location where they were found.
Due to the determinative nature of the defendants' fourth assignment of error, we need not address all of the assignments of error asserted by the defendants.
In their fourth assignment of error the defendants contend that various errors by the trial court prejudiced the defendants' right to a fair and impartial trial. The defendants contend that the trial court (1) allowed the question of relevancy and materiality of evidence to go to the jury; (2) defined reasonable doubt in terms which could be construed as preponderance of evidence; (3) constantly interjected oral instructions to the jury throughout the trial; and, (4) commented upon the right of the defendants not to take the stand.
A review of the record indicates that many of the errors asserted in this assignment of error were not properly preserved by timely objection. Furthermore, it would appear that the trial judge's comment on the defendant's right to remain silent was invited by questions concerning the same by a counsel for the defense during voir dire. However, in view of the cumulative effect of these errors we feel that the defendants' rights were prejudiced to such a degree that they were deprived of a fair trial and fundamental justice. See, Crow v. State, Okl.Cr., 551 P.2d 279 (1976), and Lowrey v. State, 87 Okl.Cr. 313, 197 P.2d 637 (1948). Also see, Warthen v. State, Okl.Cr., 559 P.2d 483 (1977).
In summary, upon retrial of this case we anticipate that (1) questions of law, such as relevance and materiality, will not be allowed to go to the jury but should be passed on by the court prior to submission to the jury; (2) the court will refrain from any appearance of defining reasonable doubt for the jury; (3) any instructions to the jury will be made in compliance with 22 O.S.1971, §§ 856 and 894; and, (4) the trial judge will make no comment or explanation of the defendants' right to decline to take the stand.
Also, defendant Faubion asserts that it was error for the court to instruct the jury under the Habitual Criminal Act rather under the specific enhancement provisions provided by the Uniform Controlled Substance Act. It is provided in 63 O.S.1971, § 2-403, that:
(Emphasis added)
Clearly, 63 O.S.1971, § 2-403, makes specific provision for enhancement of punishment and 21 O.S.1971, § 11, provides that specific provisions for punishment control over general provisions.
However, the State contends that the instant case would...
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