Fisher v. State
| Decision Date | 25 August 1983 |
| Docket Number | No. F-81-432,F-81-432 |
| Citation | 668 P.2d 1152 |
| Parties | Gary Eugene FISHER, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Gary Eugene Fisher was charged and tried in the District Court of Oklahoma County, Case No. CRF-80-2262, for Possession of a Controlled Dangerous Substance with Intent to Distribute, in violation of 63 O.S.1981, § 2-401. However, the jury convicted him of the lesser included offense of Possession of a Controlled Dangerous Substance, pursuant to 63 O.S.1981, § 2-401, and sentenced him to two (2) years' imprisonment.
Two police officers from the Oklahoma City Police Department testified that they observed a car traveling northbound on Interstate 35 at a speed estimated at 100 miles per hour. The police car, traveling southbound at the time of this observation, made a U-turn and followed the speeding car. The police observed that the suspect turned left onto Wilshire Boulevard, forcing one truck to brake heavily in order to avoid a collision, passed another truck in a no passing zone and ran a four-way stop sign at Eastern Avenue. The police then engaged their emergency lights, after which the suspect allegedly turned off his lights. Moments later, the police saw "a cloud of smoke", when the appellant collided with another car. The appellant was transported to University Hospital accompanied by one of the officers. While searching for the identification which appellant was either unable to give or refused to give, the accompanying officer found in the appellant's pocket a packet which contained cocaine. The officer who remained with the wreckage searched for identification in the appellant's car. He opened the glove box inside the car and a baggie containing manilla packets of cocaine fell out.
The appellant, who testified in his own behalf, admitted that he was speeding and that he was involved in an accident. However, he denied any knowledge of the police chasing him or ownership of the cocaine.
Initially, the appellant asserts that he was denied a fair trial as a result of accumulated errors stemming from the improper admission of testimony of other crimes and the conduct of the district attorney throughout the trial. Specifically, the appellant urges that the trial court erred in its Order in Limine, that its order was violated by the State; that there was no good cause shown for bifurcation of the preliminary hearing; that the State violated the court's Discovery Order by not notifying the defense in advance of any expert witnesses and then endorsing them at a later date; that the State failed to inform the appellant that one of the officers was present at an earlier incident involving the appellant, and that such failure again constituted a violation of the Discovery Order, which required the State to release evidence favorable or exculpatory to the accused; and that the State failed to properly preserve names of witnesses at the accident. Furthermore, the district attorney's conduct was allegedly improper during his closing remarks, which the appellant claims implied bad faith within his defense, prejudicing the jury.
We agree with the appellant that a defendant is to be convicted of the crime with which he is charged, without reference to other crimes. Atnip v. State, 564 P.2d 660 (Okl.Cr.1977). The appellant here believes he was convicted after reference to the fatal automobile accident. However, a review of the record reveals that there was no mention of the fatality. The trial court was correct in allowing the officers to testify about the appellant's speeding and collision, for such acts established the reasons they were pursuing the appellant and how they caught up with him. The trial court did, by its order, prohibit the State from mentioning the fatality and the State complied.
After the preliminary hearing had begun on August 5, 1980, it was continued until September 5, 1980, because one of the State's witnesses was unavailable to testify on August 5th and the assistant district attorney was leaving on vacation. Title 22 O.S.1971, § 254, requires the preliminary examination to be completed at one session unless the magistrate for good cause adjourn it. His decision is entirely discretionary. See, Harper v. District Court of Oklahoma County, 484 P.2d 891 (Okl.Cr.1971). Appellant has offered this Court no evidence of prejudice resulting from the continuance, and thus we conclude the magistrate did not abuse his discretion.
The appellant next claims witnesses at the trial were improperly endorsed. Specifically, the appellant objects to the endorsement of Dr. Neil Purdie, who analyzed the substances confiscated by the officers. The appellant contends the State failed to reveal the identity of its expert witness, thus violating both the Discovery Order set by the trial court and the statutes. 22 O.S.1981, § 303. However, this Court has consistently held that a trial court may use its discretion to permit endorsement of witnesses even after the trial commenced. If the opposing party is surprised or needs more time to prepare and meet the additional testimony, that party has the responsibility to move for a postponement or continuance in which to establish the need for additional time and anticipated new evidence. Failure to do this constitutes a waiver of any error. See Syllabus by the Court, Paschall v. State, 252 P.2d 175 (Okl.Cr.1952).
In the present case, the appellant neither objected to the introduction of Dr. Purdie as a witness nor did he ask for a continuance or postponement to meet Purdie's testimony. Accordingly, this Court does not need to determine whether error was made where...
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Mayes v. State
...a continuance." Diaz v. State, 728 P.2d 503, 513 (Okl.Cr.1986); Mason v. State, 560 P.2d 1048, 1050 (Okl.Cr.1977). See Fisher v. State, 668 P.2d 1152, 1155 (Okl.Cr.1983). Therefore, we review for fundamental error We have reviewed the list of witnesses endorsed after Appellant received his ......
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Diaz v. State
...his announcement of ready for trial and request a continuance." Mason v. State, 560 P.2d 1048, 1050 (Okl.Cr.1977). See Fisher v. State, 668 P.2d 1152, 1155 (Okl.Cr.1983). As noted in Riggle v. State, 585 P.2d 1382, 1389 [T]his Court has specified a definite procedure to follow where the def......
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Thomas v. State, F-87-802
...eve of trial; he must withdraw his announcement that he is ready for trial and request an immediate continuance. See also Fisher v. State, 668 P.2d 1152 (Okl.Cr.1983); Blanton v. City of Oklahoma City, 568 P.2d 288, 290 (Okl.Cr.1977); Mason v. State, 560 P.2d 1048 (Okl.Cr.1977). In Diaz, we......