Gee v. State
| Decision Date | 09 July 1975 |
| Docket Number | No. F--75--8,F--75--8 |
| Citation | 538 P.2d 1102 |
| Parties | Marshall 'Bozo' GEE, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Marshall 'Bozo' Gee, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Comanche County, Case No. CRF--74--168, for the crime of Unlawful Delivery of Heroin. Defendant was sentenced on the 8th day of July, 1974, to serve a term of twenty (20) years in the State penitentiary and assessed fine in the amount of Five Thousand ($5,000.00) Dollars. From that judgment and sentence the defendant now appeals.
The State called as its first witness Sue Ann Lodgston. The witness testified that she was acquainted with Jim Ingram, a police officer in the Narcotics Division of the Lawton Police Department. She became acquainted with him when her husband was arrested for possession of narcotics. The witness stated that she had a conversation on the 8th day of March, 1974, with Officer Ingram. At this point she testified that she was acquainted with Marshall 'Bozo' Gee, the defendant, and that on the same evening she went to meet the defendant at the Northside Ice Dock. She asked the defendant whether he could get any marihuana or heroin. She stated that he replied that he could get her some of whatever she desired. After talking with the defendant she went to the police station. At that time she and her car were searched in order to ascertain whether drugs were present. Officer Livingston searched her car, and she was given a strip search by a policematron. She was then given $30.00 with which to make the buy. She proceeded to the ice dock, went inside, and told the defendant that she had money for two 15 cent papers of 'smack' (heroin). The defendant then went to a car and then returned to the witness' car and handed her some heroin. The witness then drove away in her car. After traveling a few blocks, the witness pulled over, Officer Ingram came to her car and she told him of her buy. When Officer Livingston arrived she handed him the packets of heroin. They arrived at the police station and she was again strip searched and told to go home.
Upon cross-examination she stated that she was not being paid to do this work for the police. She testified she felt it might make the police look more favorably toward her husband with regard to narcotic charges pending against him. She stated that a friend of hers who had helped the police received a lighter sentence, and that by helping the police she hoped that her husband would receive a lighter sentence. She further indicated that at no time were any promises made with regard to consideration for her husband. She testified that she had previously bought 'dope' and that was how she knew where to go in order to make the purchases. She stated that she only bought 'dope' from the defendant one time. On March 9, she bought what was purported to be 'dope' from the defendant but the substance was not 'dope.' She declared that on March 9 she gave the defendant $500.00 for what turned out to be 50 packets of baking soda. She stated at the time of the buy she thought the substance was 'dope,' but she was told at a later time that it was not. The witness further testified that the morning before the trial she read her testimony from the preliminary transcript. She stated that she read her testimony to refresh her memory as to what was said and asked. She stated that she received the information from Officer Livingston at the District Attorney's office.
The second witness for the State was Officer David Livingston. Officer Livingston testified that he was employed by the Lawton Police Department. On March 8, 1974, he stated that Sue Ann Lodgston met him and Officer Ingram at the police station. She was given a strip search by a policematron. The witness stated he searched her car and found it free of drugs. The witness testified he gave Mrs. Lodgston $30.00 with which to make a purchase of heroin from the defendant. The officer then testified that he proceeded to the ice dock and waited for Mrs. Lodgston to arrive. The witness stated that when Mrs. Lodgston arrived she went into a door and stayed for a few minutes. At this time the defendant walked to a car, stopped momentarily and then walked to Mrs. Lodgston's car. The witness testified that Mrs. Lodgston pulled away from the ice dock and he followed. When she stopped he pulled up beside her, walked over to the car and was handed two tinfoil packets containing what later was found to be heroin.
Upon cross-examination Officer Livingston stated that he was not present during the actual strip search of Mrs. Lodgston. He further stated that when Mrs. Lodgston left her car she was never out of his sight. The witness stated that the morning before the trial Mrs. Lodgston asked him several questions concerning the testimony. Further, the witness and Mrs. Lodgston discussed these questions with the District Attorney. A copy of the transcript was given to Mrs. Lodgston because she asked Officer Livingston if she could read it. Approximately 20 minutes later she returned the transcript to Officer Livingston.
The next witness for the State was Jim Ingram. The witness testified that he worked for the Narcotics Division of the Lawton Police Department. He indicated that on March 8, 1974, he and Officer Livingston had a meeting with Mrs. Lodgston to discuss the purchase from the defendant. He stated that a policematron was summoned to give a strip search of Mrs. Lodgston and her clothing. Also he testified that he observed Officer Livingston search Mrs. Lodgston's car. After Mrs. Lodgston returned from the search he stated that he kept her in direct surveillance at all times until she reached the ice dock on Second Street. When Mrs. Lodgston stopped at the ice dock he proceeded north past the ice dock and drove on. He stationed himself about one half block away where he could watch the vehicle. He observed a black male come to the driver's side of the car and then walk back. She stepped out of her car and walked to the entrance of the ice dock. He declared that a few seconds later he saw her come back, re-enter her car and another black male walked up to another vehicle parked in front of Mrs. Lodgston. The witness testified that the black male opened the door of her car, stayed there a few seconds and then left that car and proceeded to the passenger side of Mrs. Lodgston's car. The officer testified that the man stepped into the car with Mrs. Lodgston and stayed a few seconds. After he departed that vehicle, the Lodgston car traveled north on Second Street and stopped. The witness indicated that he walked to Mrs. Lodgston's car and she responded that she 'had the stuff.' When Officer Livingston arrived Mrs. Lodgston handed him what appeared to be two tinfoil packets. At that time she was instructed to go back to the police station.
Upon cross-examination the witness stated that he could not identify the individual who got into the Lodgston vehicle other than being a black male.
The fourth witness for the State was William Caveny. He stated he was a forensic chemist from the Oklahoma State Bureau of Investigation. He testified he received a parcel of evidence from Jim Ingram of the Lawton Police Department. The witness testified he assigned a laboratory number to the parcel and kept it in an evidence locker until his analysis on a later date. The analysis revealed that the substance was heroin.
Thereupon, both sides rested.
The defendant's first assignment of error asserts that the court erred in failing to give a cautionary instruction as to the testimony of an informant. Defendant cites numerous cases to support his argument; however, all may be distinguished on the facts. Special emphasis is put on Smith v. State, Okl.Cr., 485 P.2d 771 (1971). Defendant relies on Smith to support the assertion that it is a fundamental requirement that the court give a cautionary instruction when the testimony of an informant is used.
In Smith v. State, supra, an informer was promised return to former military work for effective work as an informant. This Court held that a cautionary instruction as to the testimony and credibility of the informant whose testimony alone placed the defendant at the scene of the crime was necessary. We cannot siphon from the language of Smith a fundamental requirement that a trial court give cautionary instructions when an informant is used and quoting from that case we stated:
'Surely, Under these facts, corroboration would seem essential, and at the very least, a cautionary instruction concerning the informer's testimony was required.' (Emphasis added)
The facts in the instant case are quite different. Although not necessary, the informant's testimony was corroborated by Officer Livingston in placing the defendant at the scene of the crime. Further, the record reveals that no promises were made to this informant.
Defendant cites Roquemore v. State, Okl.Cr., 513 P.2d 1318 (1973) as requiring a cautionary instruction even though defendant did not request one, and notwithstanding the fact that the informer's testimony was corroborated. In that case the court felt that there was some uncertainty as to the officer's visibility. Further, the informant in Roquemore had been promised that the police would not prosecute him for selling marijuana if he would make buys for the police. In the case at bar, the record reveals that Officer Livingston was directly across the street from the scene of the crime and had view of Mrs. Lodgston at all times. Also, in the present case, as we stated previously, the defendant had not been promised anything.
If the defendant had desired the use of cautionary instructions he had a...
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