Hildebrandt v. State, A--17909

• Decision Date: 13 March 1973
• Docket Number: No. A--17909,A--17909
• Citation: 507 P.2d 1323
• Parties: Roman HILDERBRANDT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1323

507 P.2d 1323

Roman HILDERBRANDT, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17909.

Court of Criminal Appeals of Oklahoma.

March 13, 1973.

Don C. Davis, Lawton, for appellant.

Larry Derryberry, Atty. Gen., Jeff L. Hartmann, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Judge:

Appellant, Roman Hildebrandt, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Comanche County, Case No. CRF--72--58, for the offense of Illegal Distribution of Lysergic Acid Diethylamide. His punishment was fixed at five (5) years imprisonment and a fine of Five Hundred Dollars ($500.00). From said judgment and sentence, a timely appeal has been perfected to this Court.

Briefly stated, the evidence at the trial adduced that on January 21, 1972 William Tebbe was workign as an undercover narcotic agent assigned to the criminal investigation division at Ft. Sill, Oklahoma. He and Criminal Investigator Glenn Skaggs went to an apartment located at 314 Park Street in Lawton and purchased three (3) LSD tablets from the defendant at approximately 11:00 p.m., paying him Twelve Dollars ($12.00). The suspected LSD tablets were subsequently turned over to Detective Rutledge of the Lawton Police Department.

Detective Rutledge testified that he and Inspector Holt followed Tebbe and Skaggs to 314 Park Street in Lawton. He observed them go into the apartment and followed the two to the police station after they left the premises. He received four tablets from Tebbe which he subsequently mailed to the Oklahoma Bureau of Investigation for analysis.

Donald Flynt, a chemist for the Oklahoma Bureau of Investigation, testified that he conducted certain tests on State's Exhibit No. 3 and found that the same contained Lysergic Acid Diethylamide.

For the defense, Billy Jo Nieuwendaal testified that on January 21, 1972, she lived at 314 Park Street in Lawton. The defendant and several other persons resided at her house. On the evening of January 21, Agents Tebbe and Skaggs came to her house. Defendant 'either left before they got there or just after they got there.' (Tr. 99) The defendant did not return until after midnight.

The defendant testified that he left the apartment at approximately 7:30 on the evening in question and did not return until after midnight. He denied selling the LSD to Agent Tebbe.

The first proposition asserts that the military agents were incompetent as witnesses by virtue of a federal prohibition against them acting as a Posse comitatus. In dealing with a similar proposition in the recent case of Hubert v. State, Okl.Cr., 504 P.2d 1245, we stated:

'The defendant asserts two assignments of error, both dealing with the admissibility of the evidence. Defendant argues that the military CID agents were incompetent as witnesses by virtue of a federal prohibition against them acting as a Posse comitatus. Title 18 U.S.C., Section 1385, provides as follows:

'Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.'

'We are of the opinion that both propositions are without merit. Posse comitatus is defined in Black's Law Dictionary as follows:

'The power or force of the county. The entire population of a county above the age of fifteen, which a sheriff may summon to his assistance in certain cases; as to aid him in keeping the peace, in pursuing and arresting felons, etc.'

'The evidence adduced that the Lawton law enforcement authorities did not summon the military agents' assistance. To the contrary, Detective Rutledge was contacted by Agent Holt. The agents were investigating a soldier from Ft. Sill from whom they had previously purchased narcotics and proceeded to determine his source of supply. The soldier led the agents to a location outside the scope of their military jurisdiction, at which time the agents assumed no greater authority than that of a private citizen.

'We further observe that neither statutory provision concerning competency of witnesses, 22 O.S., § 702, nor 12 O.S., § 385, provides that military personnel are incompetent as witnesses.'

The second proposition contends that the defendant was entrapped. We need only to observe that there was no evidence introduced on behalf of the defendant to support his theory of entrapment. To the contrary, the defendant testified that he did not sell the LSD tablets. Defendant requested an entrapment instruction which was given by the trial court, without objection by the State. In Kite v. State, Okl.Cr., 490 P.2d 1402, we cited with approval Riddle v. State, Okl.Cr., 373 P.2d 832, wherein we stated:

"Whether a defendant has been entrapped is to be determined by the jury, unless it can be decided as a question of law upon undisputed facts sufficient to to (sic) establish entrapment."

We therefore, find this proposition to be without merit.

The third proposition asserts that the trial court erred in admitting into evidence a police photograph of the defendant. The photograph shows two frontal views of the defendant and a side view. The full length frontal view shows the defendant holding a sign captioned 'HILDERBRANDT R G POLICE 68 405 DEPT LAWTON 12 16 71 OKLA'.

Defendant first argues that the photograph was improperly identified in that the defendant denied that it was a faithful representation of him as it existed at the time of the controversy. We are of the opinion that the photograph was properly identified. The defendant testified that the photograph was his picture taken in December of 1971. He stated that the picture accurately represented his appearance on January 21, 1972 with the...