Foster v. State
| Decision Date | 12 August 1987 |
| Docket Number | No. F-85-126,F-85-126 |
| Citation | 742 P.2d 1131 |
| Parties | Henry C. FOSTER, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Henry C. Foster, a/k/a H.C. Foster, was convicted in the District Court of McClain County, Case No. CRF-83-202, of Knowingly Concealing Stolen Property after Former Conviction of Two or More Felonies, and sentenced to forty years' imprisonment. He appeals raising ten assignments of error.
On December 12, 1983, as a result of a tip from a confidential informant, a search warrant was issued for a location in McClain County, just south of Norman, Oklahoma. At that location were three barns containing automobile parts, and two pickup trucks which had been stolen, one on that day, and one two days before. Earlier the same day the location had been under surveillance in conjunction with the pickup theft investigation, and officer William N. Pollins testified he observed George Hanna and the appellant conversing. The evidence reveals that George Hanna had stolen the red and silver pickup earlier in the day and taken it to that location which was described by State Bureau of Investigation Agent Greg Shield as a "chop shop", where stolen vehicles are dismantled for the resale of the parts.
The location where the two pickups were found belonged to the appellant who presented evidence that the area had been leased to Jim Brown, that the appellant had nothing to do with the chop shop, and that he had not been present at the location on December 12, 1983.
In his first assignment of error, the appellant contends that the trial court improperly denied a request for a change of venue. The reporting of the voir dire examination was waived by all parties, and as a result, it is impossible to determine whether there was any impact on the panel of jurors regarding pretrial publicity. The appellant has a duty to insure that sufficient record is provided this Court to decide the issues raised. Martinez v. State, 569 P.2d 497 (Okl.Cr.1977). Moreover, a motion for a change of venue must be supported by at least three affidavits from credible county residents. 22 O.S.1981, § 561. These were not provided. For these reasons, we find this assignment of error to be without merit.
In his second assignment of error the appellant alleges that the search warrant which was issued to search his property was not based upon probable cause and therefore the trial court erred in refusing to suppress the evidence obtained by the search. The appellant argues that the affidavit for the search warrant did not state that the affiant personally observed a violation of the law or the possession of contraband upon the appellant's premises sufficient to support an arrest without a warrant, and that the affidavit is based on hearsay information. The appellant cites Leonard v. State, 453 P.2d 257 (Okl.Cr.1969) for the proposition that hearsay information is allowed if the affidavit sets forth in detail why the informant is deemed to be reliable and whether the informant himself observed a violation of the law or the presence of contraband on the described premises. The affidavit in the case at bar concerned the reliability of John Martin VanHoose, and there are no statements in the affidavit that VanHoose observed the presence of contraband upon the appellant's premises. The appellant complains that the statements of VanHoose were obtained from hearsay information, provided by George Hanna whose reliability was not mentioned in the affidavit. A reading of Leonard clearly reveals that the holding in that case was based upon the holdings of two opinions of the Supreme Court of the United States, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1954), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In the Leonard case we expressed our disapproval of the holding in Spinelli. Leonard at 259. Subsequently, a new test has been formulated by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) in which that Court abandoned the rigid "two-pronged test" (See Gates, note 4) under Aguilar and Spinelli for determining whether an informant's tip establishes probable cause for issuance of a warrant, and the "totality of the circumstances" approach has been substituted. The majority opinion in Gates stated that, "probable cause is a fluid concept turning on the assessment of probabilities in particular factual contexts, not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232, 103 S.Ct. at 2329. Having examined the affidavit in the case before us we find that under the totality of the circumstances the examining magistrate correctly determined that there was probable cause to issue a search warrant. Moreover, the test for probable cause as stated in Leonard is expressly abandoned. "[T]he traditional standard for review of an issuing magistrate's probable-cause determination has been that so long as the magistrate had a 'substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Gates, 462 U.S. at 236, 103 S.Ct. at 2331.
The appellant additionally alleges other irregularities existing in the execution of the affidavit and return of the search warrant. He first complains that the affidavit was styled "In the District Court of McClain County", when it was actually sworn to in Cleveland County before a Cleveland County Judge. He further complains that the warrant was executed in McClain County, returned to and filed in Cleveland County, and that the search warrant was issued to one officer and returned by another. We have held in construing 22 O.S.1981 § 1225 that any District Judge, Associate District Judge, or Special Judge may issue a search warrant to be served any place in the judicial district where that judge may be presiding at the time. Cunningham v. State, 600 P.2d 337 (Okl.Cr.1979). Both Cleveland and McClain Counties are in District No. 21 (20 O.S.1981, § 92.22). Concerning the style of the affidavit and the alleged irregularities about the return, we do not find any error which was prejudicial to the appellant, nor any which is fundamental. This assignment of error is without merit.
Next the appellant contends that the State's witness, John Martin VanHoose, a confidential police informant, was an accomplice, that his testimony was uncorroborated, and therefore the trial court erred in admitting it into evidence. We cannot agree with the appellant's contention that VanHoose was an accomplice. He did not participate in the stealing of the vehicles, although he was present when one of the vehicles was stolen. Neither does the record show that he aided, or was a principal with the appellant in concealing the stolen property for which the appellant was charged. We have previously held that a person who under the direction of the police, acts with the guilty party for the purpose of bringing the guilty to justice is not an accomplice whose testimony must be corroborated, because he lacks criminal intent. Kiddie v. State, 574 P.2d 1042 (Okl.Cr.1977).
The appellant next assigns as error the introduction of evidence of other crimes. He cites three instances in which he alleges that the jury's attention was improperly focused upon such evidence. In the first instance he complains that photographs of automobile parts were entered into evidence, and that even though a notice pursuant to the guidelines of Burks v. State, 594 P.2d 771 (Okl.Cr.1979) had been filed, the evidence did not meet the requirments under Burks. Although evidence was not presented that the automobile parts were stolen, the jury could reasonably have inferred that they were. The information charged the appellant with Knowingly Concealing Stolen Property, and lists two pickup trucks. Those pickups were found in the appellant's barns on his property. One of those pickups was partially dismantled. Evidence of other crimes is admissible provided that the evidence is offered for the purpose of showing proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. 12 O.S.1981, § 2404. The presence of other automobile parts, and the fact that one pickup was partially dismantled shows the intention to dismantle the stolen vehicles. A reasonable conclusion from that evidence is that the appellant intended to sell the parts. The presence of the automobile parts would tend to show that the receipt of the stolen pickups was a part of a plan to conceal, and dismantle and sell stolen vehicles, and that the vehicles were not there through mistake or accident. Therefore, the Burks requirement is more than adequately met.
The second instance of which the appellant complains occurred during the cross-examination of George Hanna. The prosecutor asked, "Now is it correct for me to state that on the case arising out of Cleveland County which you have previously testified, the conspiracy case, and which was involving H.C. Foster, is that correct?" (sic). Defense counsel moved for a mistrial, which the trial court denied, but the court instructed the prosecutor not to pursue the line of questioning. Defense counsel failed to request that the jury be admonished, and because this error could have been cured by an admonition to the jury, it has not been preserved for review. Wimberli v. State, 536 P.2d 945 (Okl.Cr.1975).
In the third instance, during rebuttal the State offered two tapes to impeach one of the appellant's witnesses. The State intended to play eight minutes of those tapes to impeach the defense witness, George...
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