Hauschildt v. State, M--76--132

• Decision Date: 17 August 1976
• Docket Number: No. M--76--132,M--76--132
• Citation: 554 P.2d 77
• Parties: Darlene A. HAUSCHILDT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 77

554 P.2d 77

Darlene A. HAUSCHILDT, Appellant, v. The STATE of Oklahoma, Appellee.

No. M--76--132.

Court of Criminal Appeals of Oklahoma.

Aug. 17, 1976.

Stephen V. Swanson, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Joe Mark Elkouri, Legal Intern, for appellee.

OPINION

BRETT, Presiding Judge:

Appellant, Darlene A. Hauschildt, hereinafter referred to as defendant, was charged in Case No. CRF--75--44 of the District Court, Beckham County, with the offense of Unlawful Possession of a Controlled Dangerous Drug (Amphetamines) With the Intent to Distribute. After a trial by jury she was convicted of the lesser offense of Possession of Amphetamine, a misdemeanor. The jury assessed her punishment at one (1) years' confinement in the County jail. In accordance with the verdict, judgment and sentence was imposed on October 24, 1975, and from that judgment and sentence defendant has perfected this timely appeal.

On July 10, 1975, at approximately 11:00 p.m. the defendant was arrested by the Elk City Police and charged with an unrelated offense. When she was processed at the Police Station, an inventory was made of her personal belongings, including the contents of her purse. The police dispatcher, Sandy Nance, testified at defendant's trial that she routinely examined the personal belongings of those being booked into jail and recorded a written description of each item. In the defendant's purse she discovered three bags of pills, one of those bags had 94 white pills, which later proved to be amphetamines, and one bag had 19 1/2 pink pills which later proved to be Preludin. Defendant was subsequently charged with possession of amphetamines with intent to distribute. After the State rested its case against her, the defendant took the stand to admit her knowing possession of the pills in question, but to deny that she intended to distribute them. Her testimony was that she is a 35-year-old widow, the mother of four children, who works at a truck stop from midnight to 8:00 a.m. She offered the explanation that she had wanted the amphetamines to help her stay awake during her working hours, and that she had purchased 100 pills containing amphetamine from a truck driver for $25.00. She also testified that the same truck driver gave her the pink pills, telling her that they were diet pills.

Defendant's brief on appeal argues five propositions of law in this order:

'1. The verdict of the jury is excessive and appears to have been given under the influence of passion and prejudice.

'2. The stopping and arrest of defendant was without authority of law and evidence incidental thereto should be suppressed.

'3. The court erred in admitting documents and testimony during the trial which showed that the defendant was guilty of other separate offenses not part of the offense charged.

'4. The evidence of the illegal drugs should have been suppressed from the evidence because no proper chain of custody was presented during the trial to reasonably identify the evidence as being the same as that taken from the appellant.

'5. The court erred in instructing the jury to fix punishment absent the request of the defendant.'

We consider first defendant's contention that her arrest was unlawful and that, consequently, the evidence seized from her purse at the police station should have been suppressed. It is plain that the search of defendant's purse and the seizure of the quantity of contraband pills during the 'booking' process at the police station was permissible if her arrest and detention were lawful. See, United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); United States v. Jeffers, 524 F.2d 253 (7th Cir. 1975). Defendant contends, however, that the seizure must fail because the initial arrest in this case was not valid, but a subterfuge to search. See, Fields v. State, Okl.Cr., 463 P.2d 1000 (1970); Johnson v. State, 92 Okl.Cr. 63, 220 P.2d 469 (1950). This record does not support such a position. The police officers who made the arrest in this case testified that the defendant came to their attention when she drove onto the highway from the parking lot of the Onyx Bar. The officers testified that she moved rapidly out of the parking lot, spinning the automobile's tires, and causing it to sway erratically with a motion that one officer described as 'fishtailing.' Both police officers testified that at that time they made the decision to stop the defendant for negligent driving. She was not, however, cited for negligent driving, but was taken into custody and subsequently searched and jailed. Such circumstances might draw into question the officers' real motivation for making the initial stop. In this case, however, it is clear from the record on appeal that after the officers stopped the defendant they had reason to believe she was intoxicated, and took her into custody upon a charge, duly filed and prosecuted, of driving while intoxicated.

The defendant filed sometime prior to trial of this case a standard motion to suppress. The motion contains no allegation of an illegal arrest and, in fact, was never presented to the court and never ruled upon. The defendant did not request an evidentiary hearing outside the presence of the jury on the issue of the validity of her arrest at trial. The record before us now shows that the question of the legality of the arrest was not presented to the trial judge until the close of the State's case when the prosecutor again moved to introduce the pills into evidence. If the defendant had evidence of the constitutional invalidity of her arrest beyond that which was adduced by cross-examination of the arresting officers in the trial of this case, she should have requested an evidentiary hearing outside the presence of the jury and presented that evidence. The defendant neither moved for an evidentiary hearing, nor alleged that she had additional evidence to present to the question of the legality of her initial arrest. Upon the record before him the trial judge correctly overruled the defendant's objection to the introduction of evidence upon the grounds that the evidence was the product of an illegal arrest.

We turn now to defendant's contention that the evidence of her possession of illegal drugs should have been suppressed for the reason that no proper chain of custody of that evidence was shown at trial. The testimony at trial concerning the chain of custody of the pills was that after the dispatcher discovered them in defendant's purse, Officer Randy Smith conducted a field test for chemical content of the pills, counted them, tied the tops of the bags tightly and stored the pills overnight in his locker at the police station. Not until the following morning did the officer mark that evidence with his initials and seal it in an envelope to be mailed to the Oklahoma State Bureau of Investigation in Oklahoma City. Also, the defendant points out, the dispatcher testified that the number of pills found were distributed among three plastic bags, while Officer Smith, on cross-examination, remembered the original number of bags containing the pills to have numbered four. The defendant contends that these testimonial flaws in the establishment of the chain of custody so taint the...