Geary v. State, F-83-671
| Decision Date | 06 November 1985 |
| Docket Number | No. F-83-671,F-83-671 |
| Citation | 709 P.2d 690,1985 OK CR 141 |
| Parties | Tracy M. GEARY, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Tracy M. Geary, was charged, tried and convicted in the District Court of Okmulgee County, Oklahoma, Case No. CRF-83-3, for the offense of Driving Under the Influence of Intoxicating Liquor, Subsequent Offense. His sentence was fixed at a term of five (5) years imprisonment in the State Penitentiary. We affirm.
The uncontroverted testimony revealed that on the evening of January 1, 1983, Officers Mike Claver and Jim Lemay were on routine patrol in the city of Henryetta, Oklahoma. At approximately 9:45 p.m., the officers received a radio message advising them of a Citizen's Band (CB) Radio report of a vehicle traveling west on the eastbound lane of Interstate 40 between the two Henryetta exits. Officer Claver contacted a highway patrol officer by radio and advised him of the situation. The state trooper requested that the officers try to spot the automobile and that he would proceed there as soon as possible.
Responding to the request, Officers Claver and Lemay entered the expressway and proceeded west on the westbound lane. Upon spotting a vehicle traveling 50 to 55 miles per hour, traveling west on the eastbound lane, Officer Claver engaged his siren and red lights and directed a spot light on the appellant's vehicle. The appellant continued driving for two miles before finally stopping with his vehicle partially on the shoulder and on the highway.
As testified by both officers, the appellant, upon exiting his vehicle, was having difficulty walking, his clothes were in disarray, his eyes were bloodshot, his speech was slurred and sloppy, and he had the odor of alcohol on his breath. The appellant was asked to produce his driver's license but had difficulty in locating it, even though it was in plain sight. At this point, the appellant was handcuffed and placed under arrest.
Officer Claver placed the appellant in his patrol car and contacted the highway patrol officer on his radio. The state trooper, who was temporarily detained, requested that Officer Claver take the appellant to Henryetta. Upon an inventory of the appellant's car before leaving the scene, Officer Lemay recovered an open, half gallon container of whiskey under the front seat.
Officer Claver again contacted the highway patrol trooper after arriving in Henryetta. The trooper told Claver to advise the appellant of his chemical rights and to administer a breathalyzer test to the appellant if he wanted one. The appellant was advised of his rights and agreed to the test. The test result showed that there was 0.22 percent weight by volume blood alcohol concentration in the appellant's bloodstream.
In his first assignment of error, the appellant contends that the evidence at trial was the product of an illegal arrest, since the arresting officers were acting outside their jurisdiction. We disagree. We have previously held that a police officer's authority cannot extend beyond his jurisdiction, viz. the city of his employer. Graham v. State, 560 P.2d 200 (Okl.Cr.1977). Furthermore, outside a police officer's region of authority, he acts as a private citizen, absent the established exceptions of fresh pursuit or the pursuit of an escapee. Knowlton v. State, 574 P.2d 1059 (Okl.Cr.1978). However, other exceptions to this general rule may be authorized by statute. See, Graham, supra.
In Graham, supra at 203, this Court stated that "one municipality can request the assistance of another municipality's police officers pursuant to 11 O.S. 1971, § 20.6." Similar wording is found in the Highway Safety Code, 47 O.S.Supp.1982, § 2-117(2), to wit:
This section shall not limit a member of the Oklahoma Highway Patrol Division from requesting assistance from any other law enforcement agency nor limit officers of such agency from rendering the requested assistance. The officer and the law enforcement agency responding to the request of the member of the Oklahoma Highway Patrol Division or sheriff's department shall have the same rights and immunities as are possessed by the Oklahoma Highway Patrol Division.
Since a member of the State Highway Patrol has the "authority to arrest without a writ, rule, order or process any person detected by him in the act of violating any law of the state," 47 O.S.Supp.1982, § 2-117(2), it therefore follows that any officer acting upon the request of a State Highway Patrol officer has the same rights and immunities thereof. In the instant case, Officers Claver and Lemay were acting upon the direction and request of a State Highway Patrol officer and therefore derived the right to apprehend the appellant from the said officer. Accordingly, the appellant's first assignment of error is without merit.
In his second assignment of error, the appellant contends that the trial judge committed reversible error by allegedly commenting on the appellant's failure to testify. This assignment of error has been waived since the appellant did not object at trial to the comments of the trial judge which he now finds objectionable. This Court has previously held that failure to object to the trial court's remarks is fatal since the alleged error is not preserved for review on appeal. Stowe v. State, 590 P.2d 679 (Okl.Cr.1979). Furthermore, we find the appellant's contentions are without merit since a review of the record reveals that the comments by the trial judge were in no way prejudicial. This assignment of error is wholly without merit.
In his third assignment of error, the appellant asserts that the trial court erred by not delivering to the jury a special cautionary instruction concerning the appellant's failure to testify. We disagree. This Court held in Cole v. State, 645 P.2d 1025 (Okl.Cr.1982) that a trial court's failure to administer a cautionary instruction is not fundamental error when the defendant neglects to request such an instruction. See also Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). The appellant in this case did not request such an instruction; therefore, this assignment of error is without merit.
In his fourth assignment of error, the appellant contends that his right to a fair trial was prejudiced by irregularities in the trial court's jury instructions. This assignment is wholly without merit since the record does not show that the appellant objected to any of the trial court's instructions or submitted any requested instructions to the court. This Court has held that "where a defendant fails to object to instructions given and does not submit requested instructions, and where the instruction given adequately covered the subject matter of inquiry, any error was waived." Maghe v. State, 620 P.2d 433, 436 (Okl.Cr.1980). Since the instructions in the instant case adequately covered the subject matter of inquiry, and because of the waivers noted above, this assignment of error is wholly without merit.
In his fifth assignment of error, the appellant contends that his right to a fair trial and the length of his punishment were adversely affected by the admission of allegedly prejudicial evidence and improper comments by the prosecutor.
The appellant first contends that the admission of an opened, half-empty, half gallon container of whiskey found in the appellant's automobile on the night in question was prejudicial. He asserts that the officer's testimonial references to the bottle of liquor may have been admissible, but the bottle itself was erroneously admitted into evidence. This Court has previously held that a partially empty container of liquor is admissible, as circumstantial evidence, against the driver of the automobile in which the bottle was found, in a prosecution for driving under the influence of intoxicating liquor. Stone v. State, 461 P.2d 962 (Okl.Cr.1969). See also Moran v. State, 95 Okl.Cr. 6, 237 P.2d 920 (1951) and Willaford v. State, 97 Okl.Cr. 247, 261 P.2d 630 (1953). This contention is therefore without merit.
In his second contention, the appellant asserts that the prosecutor misstated the law, during his closing argument, by expressing an opinion on the legal effect of the appellant's breathalyzer test result. At page 67 of the transcript, the following appears:
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