Humphreys v. State, A--17424

• Decision Date: 02 July 1973
• Docket Number: No. A--17424,A--17424
• Citation: 512 P.2d 197
• Parties: Oscar W. HUMPHREYS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 197

512 P.2d 197

Oscar W. HUMPHREYS, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17424.

Court of Criminal Appeals of Oklahoma.

July 2, 1973.

An appeal from the District Court of Caddo County; Sam W. Williams, judge.

Oscar W. Humphreys, Appellant, was convicted for the offense of Sale of a Stimulant; he was sentenced to two years imprisonment, and he appeals. The judgment and sentence is affirmed.

Virgil L. Upchurch, Anadarko, for appellant.

Larry Derryberry, Atty. Gen., Fred H. Anderson, Asst. Atty. Gen., Amy Hodgins, Legal Intern, for appellee.

OPINION

BLISS, Presiding Judge:

In the District Court of Caddo County, Case No. CRF--71--49, Appellant, Oscar W. Humphreys, hereinafter referred to as defendant, was charged, tried, and convicted for the offense of Sale of a Stimulant. His punishment was fixed at two (2) years imprisonment; and from that judgment and sentence, he has perfected a timely appeal to this Court.

Agent Samuel C. Sparks, of the Oklahoma State Bureau of Investigation, testified that at approximately 11:45 a.m. on April 16, 1971, he observed a meeting between the defendant and agent Charles Ryan. The meeting, located at the Tastee Freez, North First Street, Anadarko, Oklahoma, was recorded on Video tape with the alleged transaction taped on a recording received from a transmitter concealed on Ryan's person. After qualification of the evidence, the Video tape and tape recording were both introduced into evidence without objection of defense counsel.

Agent Charles Ryan, of the Oklahoma State Bureau of Investigation, testified that on the above date he met the defendant at the above drive-in at approximately 11:45 a.m. Ryan testified, without objection of defense counsel, on direct and cross-examination, that he was introduced to the defendant on April 12, 1971, by a Mr. Kirkley. On this day, Kirkley phoned the defendant in Ryan's presence and arranged a meeting at the above mentioned Tastee Freez. Ryan and Kirkley drove to the Tastee Freez in Kirkley's car. Upon arrival the defendant entered Kirkley's vehicle and Ryan negotiated for the purchase of a quantity of marijuana. The defendant refused to sell marijuana and after a further negotiation, the defendant sold Ryan approximately twenty-seven tablets, later identified as LSD, for the sum of thirty dollars ($30.00). On April 16, 1971, Ryan again met with the defendant at the same location. Upon the defendant's entry into Ryan's vehicle, Ryan asked the defendant if he had the 'stuff' with him. He replied he did not; that he would have to get it from another location. They agreed to meet again at the same location approximately twenty minutes later, the time the defendant stated it would take him to get some 'Mesc,' a combination tablet of mescaline and an amphetamine. After a lapse of approximately thirty minutes, the defendant returned to Ryan's car, entered the vehicle, and produced a cellophane 'baggy' from the inside of his shirt. The baggy contained approximately twenty-five tablets. They agreed on the price of one dollar ($1.00) per tablet, the defendant removed eleven tablets from the baggy and wrapped them in a gum wrapper. In exchange for these tablets, Ryan delivered to the defendant ten dollars ($10.00). Ryan testified he did not on any occasion purchase with, nor agree with the defendant to conjointly purchase contraband from a third person. (Tr. 117)

Mr. William J. Caveny, Oklahoma State Bureau of Investigation Chemist, testified that the tablets contained lysergic acid diethylamide. Thereafter, the state rested.

The defendant testified that he had been a user of stimulants since his service duty in the military. Further, he testified he was acquainted with Donald Kirkley and on prior occasions he and Kirkley 'pooled' their money to obtain stimulants from a third party, as a purchase in larger quantities enabled them to purchase at a lower purchase price. Purportedly, Kirkley approached him frequently requesting he sell stimulants to him, but he always refused.

On April 12, the defendant testified Kirkley phoned him wanting him to purchase some stimulants in the same manner as they had done on prior occasions. He met with Kirkley, and Ryan, at the Tastee Freez. On this date he refused to sell Kirkley and Ryan stimulants, but stated he would share with them the cost of a quantity purchase and obtain them. On April 16, he stated he was contacted by Ryan by telephone. Ryan stated he wanted to purchase some stimulants. The defendant replied that he did not have 'anything', however, he did agree to meet with Ryan. When he entered Ryan's car at the Tastee Freez, Ryan asked him if he had any 'weed.' He replied he didn't, but further stated he had tablets containing amphetamine and mescaline, but he did not have them with him at the time. The defendant and Ryan separated. The defendant obtained the tablets and met with him again at this same location approximately thirty minutes later, and delivered the tablets. He stated his understanding throughout the process was that he and Ryan were sharing the costs on the purchase of a large quantity of tablets. After April 16, Ryan recalled him requesting more stimulants. His testimony revealed he responded stating, 'No, I don't want anything to do with it anymore.' (Tr. 148) Finally, the defendant testified that on every occasion previously mentioned, all conversations and negotiations were initiated by Ryan. Thereafter, the defense rested.

In defense counsel's first proposition he submits Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), in support of his argument the defendant was entrapped into committing the instant offense. By implication counsel submits the rule in Sherman, supra, is applicable in the case at bar as this Court recited it as authority in Striplin v. State, Okl.Cr., 499 P.2d 446 (1972), an opinion discussing the issue of entrapment. Sherman, supra, is distinguishable from the instant case for the two following distinct reasons:

First, Striplin, supra, is not precedent in support of an issue of entrapment as there were only two participating judges in that opinion. One of the judges specially concurred in result only stating a different ground for the conclusion reached. Therefore, the issue of entrapment adopting Sherman, supra, was not a clear majority decision on this issue and stands only in its general result. No point of law is established by the decision and it cannot be precedent covered by the stare decisis rule. Therefore, since the decision in Sherman, supra, was rendered under the Supreme Court's supervisory jurisdiction over the lower federal courts, it is not a binding decision on this Court as it has not been construed through the Fourteenth Amendment applicable to State decisions on the subject.

Second, Sherman, supra, was decided upon on uncontroverted evidence of entrapment, removing the factual determination from the jury's province, and rendering the evidence of a legal character establishing entrapment as a matter of law. This is not the circumstance in the instant case.

In the case at bench the evidence is not uncontroverted. Coupling the facts as herein stated with a careful study of the tape recording introduced at trial without objection of counsel, we find sufficient evidence to submit a factual question of entrapment to the jury. The recording of the defendant's statements during the transaction revealed the following: The defendant was familiar with sources and problems encountered in distributing contraband. The defendant, in response to Ryan's request of permission to accompany him in meeting his distribution source in Lawton, refused stating he would transport marijuana to Ryan whenever he could get it. Further, the defendant asked Ryan if he would be willing to pay one hundred and thirty dollars ($130.00) for a pound of marijuana stating Ryan could probably make two to three hundred dollars profit in distributing it. All of the tape recorded conversation was interrelated with the instant transaction, part of the res gestae of the instant offense, and was proper evidence from which the jury could reasonably conclude: that this offense originated with the...