Gaines v. State, F-77-166
| Decision Date | 31 August 1977 |
| Docket Number | No. F-77-166,F-77-166 |
| Citation | 568 P.2d 1290 |
| Parties | William Alexander GAINES, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, William Alexander Gaines, hereinafter referred to as defendant, was charged in the District Court, Oklahoma County, Case No. CRF-76-1602, with the crime of Unlawful Distribution of a Controlled Dangerous Substance, After Former Conviction of a Felony, in violation of 63 O.S.Supp.1975, § 2-401. He was tried before a jury which returned a verdict of guilty and fixed punishment at imprisonment for a term of fifty (50) years, and a fine of Two Thousand Five Hundred ($2,500.00) Dollars. From said judgment and sentence the defendant has perfected his appeal to this Court.
The State's first witness was Robert Bemo, a police officer with the Oklahoma City Police Department, who on April 13, 1976, was assigned to the undercover unit of the police force. Bemo testified that pursuant to a prearranged plan to make a purchase of a controlled substance he met the defendant at Village South Apartments located at S.W. 77th Street and Western Avenue, in Oklahoma City. The witness stated he arrived in the parking lot of the apartment complex at approximately 8:00 p. m. Upon his arrival defendant walked to the car, stooped down and handed him a pack of cigarettes with two small tinfoil packets inside the cellophane wrapper. Defendant advised Bemo that he could choose either packet containing T.H.C. mixed with cocaine. The witness further testified he pulled one of the tinfoil packets from the cellophane and handed the cigarettes and $10.00 in cash back to the defendant. Bemo then proceeded to the police station where he tagged the item, which was subsequently transferred to the Oklahoma State Bureau of Investigation Laboratory.
The State then called Rodney Sherrer, State Chemist for the Oklahoma State Bureau of Investigation, who testified that an analysis of the substance submitted revealed it to be phencyclydine. The witness further stated that phencyclydine was an hallucinogenic compound and a Schedule Three substance under the Oklahoma Controlled Dangerous Substance Act.
The first and only witness for the defense was the defendant himself. Defendant testified he had previously been convicted of first degree manslaughter, second degree burglary, driving while intoxicated, and leaving the scene of an accident. Defendant stated that on the above mentioned evening he was at the Village South Apartments baby-sitting for Pam Madison, a girl with whom he attended classes at South Oklahoma City Junior College. Defendant specifically denied ever selling any controlled dangerous substance to Officer Bemo. Following the testimony of the defendant, both the State and the defense rested.
As his first assignment of error the defendant contends the trial court erred in answering a jury question concerning the amount of time which would need be served before a defendant would be eligible for parole. The trial court answered the jurors in the following manner:
"My answer is that those are not matters for their consideration, that those are matters for the parole board to determine."
No objection was taken to the above response, and as this Court stated in Choate v. State, Okl.Cr., 476 P.2d 384 (1970):
The defendant suggests that the trial court's statement is fundamentally erroneous in that it draws the jury's attention to parole policies. We find it apparent from the jury's question that they were already aware of the possibility of parole. The trial court did not define the parole process in general. The jury was merely informed that parole was not a matter for their concern, but was for the parole board to determine. The trial court's answer is in compliance with 22 O.S.1971, § 894, and is not error. See, Hair v. State, Okl.Cr., 532 P.2d 72 (1974).
As his second assignment of error, the defendant asserts comments made by the trial court to defense counsel in the presence of the jury over a recess sought by the defense to obtain a witness were prejudicial to the defendant. The trial court rebuked the defendant's counsel for inability to present a defense witness who was not under subpoena. The record reflects the following transpired:
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Trice v. State
...no error occurred where trial judge informed jury that pardon and parole was a matter for the Executive Branch); Gaines v. State, 568 P.2d 1290, 1292 (Okl.Cr.1977) (Noting defendant's lack of objection, no error occurred where trial judge responded that the jury was not to consider parole);......
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Irvin v. State
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Shultz v. State, F-89-416
...at trial, all but fundamental error review has been waived. Ashinsky v. State, 780 P.2d 201, 205 (Okl.Cr.1989); Gaines v. State, 568 P.2d 1290, 1293 (Okl.Cr.1977). Reviewing only the comments met with an objection, we do not find that these two comments, which addressed whether the child in......
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McDoulett v. State
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