Findlay v. City of Tulsa

• Decision Date: 17 March 1977
• Docket Number: No. M--76--674,M--76--674
• Citation: 561 P.2d 980
• Parties: Joseph Wilson FINDLAY, Jr., Appellant, v. The CITY OF TULSA, Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 980

561 P.2d 980

Joseph Wilson FINDLAY, Jr., Appellant, v. The CITY OF TULSA, Oklahoma, Appellee.

No. M--76--674.

Court of Criminal Appeals of Oklahoma.

March 17, 1977.

Thomas W. DeMond, Tulsa, for appellant.

Waldo F. Bales, City Atty., Edward J. Hicks, III, Asst. City Atty., City of Tulsa, for appellee.

OPINION

BUSSEY, Presiding Judge.

Appellant, Joseph Wilson Findlay, Jr., hereinafter referred to as defendant, was charged in the Municipal Court of Record for the City of Tulsa, Oklahoma, Case No. 211275, with the offense of Public Intoxication in violation of 27, Tulsa Revised Ordinances, § 171. He was tried and convicted, with punishment being set at a fine of Twenty-Five ($25.00) Dollars and costs. From said judgment and sentence, a timely appeal has been perfected.

The State's first witness was Dan Marshall, police officer for the City of Tulsa, who testified that he was called to the scene of the arrest at approximately 3:00 a.m. on the 8th of February, 1976. Officer Marshall observed the defendant leaning against a food counter in a convenience store eating Fritos with a can of dip opened beside him; he was staring with a dazed look on his face; his eyes were dilated and very bloodshot; his face was dirty; and, he had an odor of alcohol on his breath. Officer Marshall inquired if he was going to pay for the Fritos and dip, and upon his affirmation asked him to do so. Officer Marshall observed the defendant's slurred speech and staggered walk. After defendant paid for the items he was asked by the officer to accompany him to his police unit where he was placed under arrest and informed of his rights. When asked by Officer Marshall if he had a car at that location, defendant replied that he did not and that he knew better than to drive a car in his present condition--admitting that he was drunk.

The State's final witness was Martin Wayne Hudson, also a police officer for the City of Tulsa, whose testimony largely served to corroborate that of Officer Marshall. Subsequent to this testimony the State rested its case.

The first witness for the defense was Jeffrey Paul Steinborn, and employee at the Seven Eleven Store where the defendant was arrested. He testified that on the morning in question the defendant entered the store and began to eat Fritos without first paying for them. Observing that the defendant appeared to be drunk, this witness called the police. Steinborn stated that the defendant did not disturb the peace.

The defendant then took the stand in his own defense. He admitted to having consumed three double scotches between 11:00 p.m. and 2:30 a.m. in addition to three beers earlier in the evening. However, he interjected that at approximately 1:30 a.m. he took a prescription drug called Librax to control stomach pains, which he knew to make him 'kind of woozy'; however, he claimed to be completely uninformed as to the side effects of said drug.

The final witness for the defense was Lester David Sparks, a pharmacist, who testified as to the side effects of the drug Librax. He stated that there is a synergistic effect between alcohol and Librax; a phenomenon whereby one drug enhances the effect of the other and vice versa; and, that the drug Librax was known to sometimes produce a side effect called ataxia, or stupor, which could account for the stagger and slurred speech. At this point the defense rested its case.

The defendant's first assignment of error is the trial court's denial of defendant's motion for a trial by jury. Defendant contends that said denial of trial by jury violates his Fourteenth Amendment right to equal protection, based upon the proposition that the defendant was denied trial by jury solely on the basis of geography, that is, where and by whom he was arrested. The discrimination asserted by the defendant is that had he been charged and tried in a District Court of this State under 37 O.S.1971, § 8, for public intoxication he would have been entitled to a jury trial, since the penalty provided for therein includes incarceration for a period of not less than five (5) days nor more than thirty (30) days in addition to a fine of not less than Ten ($10.00) Dollars nor more than One Hundred ($100.00) Dollars; however, because he was charged and tried in a municipal court, under Title 27, Tulsa Revised Ordinances, § 174, he was denied a jury trial since the penalty is only a fine not in excess of Fifty ($50.00) Dollars. This is so because of statutory and constitutional provisions discussed Infra.

The defendant does not maintain that equal protection requires that the penalty assessed by the State and the City of Tulsa must be equal. Furthermore, this Court has previously held that where the penalty assessed by a municipal court is within the range of punishment provided by State statute, with reference to punishment for the offense in question, the defendant is in no position to claim lack of equal protection concerning punishment. Butler v. State, Okl.Cr., 502 P.2d 356 (1972). However, the defendant contends that regardless of the range of punishment to be assessed he should have been provided a trial by jury if such would have been provided for in the District Court, if charged for the same offense under the applicable statute.

While both the United States Constitution and Oklahoma State Constitution recognize a right to trial by jury, it is also recognized that this is a limited right. The Supreme Court of the United States, recognizing that the extent of potential criminal liability is a rational basis for limiting the right to jury trial, stated in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that:

'. . . It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. . . . But the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment. . . .' (Citations omitted) 391 U.S. at 159, 88 S.Ct. at 1453)

Likewise, the Constitution of the State of Oklahoma explicitly provides for trial by jury in criminal cases only when the punishment for the offense charged includes incarceration or when a fine may be assessed in excess of One Hundred ($100.00) Dollars. Oklahoma Constitution, Art. II, § 19.

Furthermore, certain municipal courts were established by the Legislature, 11 O.S.1971, § 781, to hear and to determine violations of municipal ordinances; and, as an apparent added protection in these circumstances maximum punishments were provided, and right to trial by jury was expressly provided for in cases where the potential penalty by fine was in excess of Fifty ($50.00) Dollars. Title 11 O.S.1971, § 782.

The defendant in this case had no right to a trial by jury because the potential punishment for the offense charged under the municipal ordinance did not reach the constitutional and statutory thresholds. In addition, this does not constitute a violation of the defendant's right to equal protection. The decision concerning the defendant's right to trial by jury was made with reference to the same rules governing right to trial by jury which are applied, without exception, throughout the entire State of Oklahoma. So, for the above and foregoing reasons this Court finds the defendant's first assignment of error to be without merit.

The defendant's second assignment of error is the trial court's denial of the defendant's motion to dismiss and/or quash for the reason that 27, Tulsa Revised Ordinances, § 171, is unconstitutional on its face. The defendant bases this contention on the proposition that said ordinance is vague and overbroad, and therefore violates the due process clause of the Fourteenth Amendment. Said ordinance provides as follows:

'It shall be an offense for any person to be drunk or in a state of intoxication in any street, avenue, alley, park or other place open to the public.'

In effect, the defendant contends that the term 'public intoxication' is too general and lacks sufficient definition in the State of Oklahoma. This Court in Synnott v. State, Okl.Cr., 515 P.2d 1154, 1157 (1973), stated:

'. . . The concept that a facially vague statute is unconstitutional rests upon the constitutional foundation of procedural due process which requires in the interest of fundamental fairness adequate notice of what conduct is proscribed and adequate standards for the adjudication of the offense by judge and jury. If this statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its application, it is unconstitutional. . . .' (Citations omitted)

However, this Court in Synnott v. State, supra, also reiterated that:

'(O)nly reasonable certainty is required (citation omitted) and it is elementary that the prohibited act may be characterized by a general term without definition if that term has a settled and commonly understood meaning which does not leave a person of ordinary intelligence in doubt. This is true although there may be in the definition of the term an element of degree as to which reasonable men might differ.' 515 P.2d at 1157.

The condition of being in a state of intoxication is a matter of general knowledge, the meaning of which is sufficiently 'settled and commonly understood' so that definite and sensible definition may be made of the words of the ordinance in question. This is true whether the term 'intoxication' is...