Haggy v. State, A--17838

• Decision Date: 02 May 1973
• Docket Number: No. A--17838,A--17838
• Citation: 509 P.2d 936
• Parties: Donald Edward HAGGY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 936

509 P.2d 936

Donald Edward HAGGY, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17838.

Court of Criminal Appeals of Oklahoma.

May 2, 1973.

Rehearing Denied May 23, 1973.

Valdhe F. Pitman, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., Kenneth L. Delashaw, Jr., Legal Intern, for appellee.

OPINION

BLISS, Presiding Judge:

In the District Court of Oklahoma County, Case No. CRF--71--2574, Appellant, Donald Edward Haggy, hereinafter referred to as defendant, is charged, tried, and convicted for the offense of Sale of a Controlled Dangerous Substance. His punishment was fixed at nine (9) years imprisonment and he was assessed a fine of thirty-five hundred dollars ($3500). From that judgment and sentence he has perfected his timely appeal to this Court.

At the trial, John J. Morgan, an undercover narcotics officer for the Federal Bureau of Narcotics and Dangerous Drugs, testified he was assigned to purchase a quantity of drugs from the defendant. On the 28th of October, 1971, Morgan and two agents, Tom Huey and Joe Cooley, drove to the defendant's residence, Route 1, Box 9, Wayne, Oklahoma. Morgan's testimony further revealed that at approximately 3:00 p.m. Cooley and Huey knocked at the defendant's residence door; that a woman answered; that they asked to speak with the defendant; and that the defendant then appeared at the door. Cooley and Huey generally conversed about a drug purchase with the defendant responding he had no drugs available. Morgan asked the defendant if he could talk with him and defendant responded by inviting the trio into his residence. Immediately, defendant inquired of Morgan what he desired to purchase. Morgan stated he wanted to purchase large quantities of mini-bennies. Defendant asked if he was interested in THC or LSD with Morgan responding he was only interested in mini-bennies or amphetamines. Thereafter, defendant placed a telephone call. The call was returned and during the telephone conversation, defendant inquired if the recipient of the phone call had 'squares' or 'tires' for sale further stating he could handle forty 'tires' and could make some quick money. At the conclusion of the conversation, defendant agreed to wait for another call. Defendant told Morgan he could sell amphetamines for approximately one hundred dollars per one thousand. In response to the defendant's inquiry of whether Morgan had sufficient money, Morgan showed defendant a large roll of bills. After a final phone call, defendant informed Morgan he would supply fifteen thousand to seventeen thousand amphetamines. Defendant and the trio left the residence, and defendant informed Morgan the distribution point would be the grocery store parking lot at southwest 20th and Portland, Oklahoma City, Oklahoma. At approximately 4:45 p.m. Morgan entered the passenger side of defendant's car at the above location. Morgan again showed his money, defendant removed a package from the console of his car and gave it to Morgan and immediately Morgan drew his weapon, showed defendant his identification, and placed the defendant under arrest for distribution of a controlled dangerous substance. An additional package containing amphetamines was removed from the defendant's coat pocket.

Agent Charles Ryan, of the Oklahoma Bureau of Investigation, testified on the above date he was assigned to provide surveillance of the Haggy residence near Wayne, Oklahoma. He testified he was accompanied by McClain County Sheriff Joe Huddleston and two other officers during this surveillance. Further he stated that with the use of binoculars he observed Agent Morgan accompanied by two other males arrive at the residence at approximately 3:10 p.m. that afternoon. He also observed the three exit the home at approximately 3:30 p.m.

Donald Allen Flint, Oklahoma State Bureau of Investigation Chemist testified he received the pills in question contained in an Oklahoma State Bureau of Investigation Evidence Envelope. This envelope contained sixteen brown paper bags with each containing numerous white tablets. Further he stated, that all tablets were the same size and of identical appearance. A representative random sample was taken from each of the bags and analyzed with the analysis revealing positive test results indicating the tablets contained amphetamine.

On behalf of the defense, the testimony of defendant and his wife, Mrs. Rita Haggy revealed defendant had been a truck driver for approximately eight to ten years and at the time of his arrest, was raising cattle and selling used cars at his farm near Wayne, Oklahoma. Further, defendant stated he was familiar with amphetamines, but never consumed them. On the above mentioned date three men met Mrs. Haggy at the door of the Haggy residence and upon their inquiry concerning defendant, she concluded they were interested in purchasing an automobile they were selling on their property. Defendant stated he approached the door thinking this trio was interested in purchasing this vehicle. The trio then informed him they were interested in purchasing a quantity of mini-bennies with defendant responding he did not deal with them. Mrs. Haggy stated Morgan asked defendant if he could be admitted inside of the premises, followed by the trio more or less pushing their way into the house. Defendant stated that Morgan informed him he was a dealer from Dallas and needed pills. Defendant stated, in an effort to get the individuals out of his house, he phoned an individual named 'Frog' at a truck stop. Defendant admitted receiving a telephone call in Morgan's presence, however he stated the telephone conversation was the subject of a purchase of used tires for the car he had for sale. Defendant stated 'Frog' later called and advised him he could supply pills. Defendant then agreed to deliver these pills to Morgan as he was afraid of Morgan's size and the possibility he might have 'syndicate' connections. Finally, defendant stated Frog was going to receive all money from the transaction, and he only made delivery as a favor to Morgan and to 'get him out of his house so he would leave him alone.'

The consideration of defendant's assignments of error will be in a different sequence than as presented in his trial brief. Considering defense counsel's second proposition; that a demurrer to the information should have been sustained, we first note the language of the information as amended. The body of the charge states as follows:

'On or about the 28 day of October A.D., 1971, in Oklahoma County, State of Oklahoma, Donald Edward Haggy whose more full and correct name is to your informant unknown, then and there being, did then and there wilfully, unlawfully and feloniously commit the crime of Unlawful Distribution of a Controlled Dangerous Substance (63 OSA 2--401) in the manner and form as follows, to-wit:

'That is to say, the said defendant, in the county and state aforesaid, and on the day and year aforesaid, then and there being, did then and there wilfully, unlawfully, wrongfully and feloniously distribute a controlled dangerous substance, to-wit: STIMULANT in the form of approximately 16,000 small white round double scored tablets, amphetamine tablets, by attempting to sell and distributing the same to one JOHN J. MORGAN for the sum of $1,500.00, good and lawful money of the United States of America.'

Title 63 O.S.1971 § 2--401, in pertinent part, states as follows:

'A. Except as authorized by this act, it shall be unlawful for any person:

'1. To manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or...