Johnson v. State, F-84-638

• Decision Date: 30 December 1986
• Docket Number: No. F-84-638,F-84-638
• Citation: 731 P.2d 424
• Parties: Teresa Lynn JOHNSON, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 424

731 P.2d 424

Teresa Lynn JOHNSON, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-638.

Court of Criminal Appeals of Oklahoma.

Dec. 30, 1986.

Terry J. Hull, Asst. Appellant Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Jean M. LeBlanc, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge.

The appellant, Teresa Lynn Johnson, was charged, tried and convicted in the District Court of LeFlore County, Case No. CRF-83-68, for the offense of Unlawful Delivery of a Controlled Drug. Her punishment was fixed at a term of ten (10) years imprisonment. We affirm as hereinafter modified.

On February 7 or 8, 1983, Assistant Police Chief Bob Hendricks, of the Poteau Police Department, gave a confidential informant one-hundred dollars to purchase drugs from the appellant. The informant arrived at the appellant's residence and asked to buy some "crank." Testimony at trial was controverted as to the appellant's response. The appellant replied either that she did not currently have any drugs or that she did not deal in drugs. However, on February 10, 1983, the appellant telephoned the informant and informed him that she had six grams of "crank" valued at six-hundred dollars. The informant told the appellant to call him back.

The informant immediately called the police department. Later in the evening, the informant was wired with a transmitter and received some money for the drug purchase. The appellant arrived at the informant's place of employment for the sale. The informant only had one-hundred dollars, so he told the appellant to come back in a while. The appellant returned some time later that evening, after the informant had received the entire six-hundred dollars from the police. The informant went to the appellant's car and gave her the six-hundred dollars. The appellant stated that she would get the drugs and tape them to the fender of the informant's car. Later that evening, the appellant returned and informed the informant that the drugs were taped to a light pole outside the business. The informant left the business establishment and removed an envelope from the pole. The envelope was immediately turned over to Chief Hendricks.

Chief Hendricks performed a field test on the substance and determined it was an amphetamine salt. At trial, an OSBI chemist testified that the white powdery substance was, in his opinion, methamphetamine, a schedule II controlled dangerous substance. The appellant testified on her own behalf, and stated that her deceased husband was a drug dealer. She also stated that her husband's friends wanted her to continue his business, and that she had been receiving pressure from law enforcement officials. She further testified that an acquaintance forced her to deliver the drugs to the informant for the set price.

I.

In her first assignment of error, the appellant contends that the magistrate at preliminary hearing erred by not sustaining her demurrer, since the State had allegedly failed to present evidence sufficient to support a finding of probable cause as to one of the elements of the crime. We disagree. This Court held that at preliminary hearing, the State is not required to present evidence sufficient to convict. It is presumed that the State will strengthen its case at trial. Shriver v. State, 632 P.2d 420 (Okl.Cr.1980). Furthermore, the State has only the burden at preliminary hearing to show that an offense has been committed, and probable cause to believe that the defendant committed the offense. Baker v. State, 593 P.2d 100 (Okl.Cr.1978). We find in the instant case that "there is competent evidence in the record from which the magistrate, as trier of fact, could reasonable conclude that there was probable cause to believe a crime was committed and that the defendant committed it...." Shriver v. State, supra at 427. Therefore, we will not interfere with the determination of the magistrate. Accordingly, this assignment of error is without merit.

II.

In her second assignment of error, the appellant contends that the trial court erred in admitting the methamphetamine into evidence when the State allegedly failed to establish the chain of custody of the drug. We disagree. By a review of the record, we find that the chain of custody was sufficiently established, and no break in the chain of custody existed. This assignment of error is wholly without merit.

III.

In her third assignment of error, the appellant asserts that her Sixth Amendment right to confrontation was violated by the trial court's refusal to allow defense counsel to adequately cross-examine the informant. Defense counsel in the case at bar attempted to impeach the informant's credibility by a cross-examination into the informant's discharge from the Army. The trial judge permitted only an in-camera hearing to cross-examine the informant on this point. In the in-camera hearing, it was determined that the informant was dishonorably discharged from the Army. Defense counsel was not allowed to question the informant on these issues in the presence of the jury. We agree with the ruling of the trial court.

The Oklahoma Evidence Code, 12 O.S. 1981, § 2608(B), provides that:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime ..., may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness if they:

1. Concern his character for truthfulness or untruthfulness.... [Emphasis added.]

We hold that a dishonorable discharge from the military, for being A.W.O.L., is not probative to the issue of truthfulness and veracity of a witness. Therefore, the trial court did not abuse its discretion by denying the admission of such questioning on cross-examination. Thus, the appellant's Sixth Amendment right to confrontation was not violated. This assignment of error is also without merit.

IV.

In her next assignment of error, the appellant alleges the trial court violated her Sixth Amendment right to a jury determination of the facts since the court refused her proffered jury instruction on the defense of entrapment and failed to give any such instruction of its own. We disagree. It is well settled that evidence must be submitted in support of such an instruction before the trial court will consider a requested instruction. Green v. State, 611 P.2d 262 (Okl.Cr.1980). In the instant case, there was no such evidence which supported the requested instruction. Based on her own testimony, the appellant stated that she was coerced by her acquaintances, not the police, into selling the drugs on this occasion. Such testimony does not constitute entrapment as a matter of law. See Abbott v. State, 661 P.2d 914 (Okl.Cr.1983).

Therefore, the trial court did not abuse its discretion in denying the appellant's proffered instructions. Furthermore, the court's judgment will not be interfered with on appeal since the instructions fairly and accurately state the applicable law. Green v. State, supra. This assignment of error is without merit.

V.

In her fifth assignment of error, the appellant contends that the trial court erred in admitting prejudicial evidence of other crimes. We disagree. We first note that the State filed a Burks ¹ notice prior to trial, which permitted the appellant sufficient time to defend against the allegations of past crimes. The notice filed in the instant case states that evidence of other crimes will be used to prove "the Res Gestae of the crimes in question as well as the identity of the defendant, intent and motive of the defendant pursuant to 12 O.S. 2404."

As stated by statute, evidence of other crimes is generally inadmissible, except to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." 12 O.S. 1981, § 2404(B). The instant case clearly falls within the "intent" exception to rule. In construing the intent exception to rule 404(b) of the Federal Rules of Evidence, from which Oklahoma derived section 2404(B), supra, the Tenth Circuit stated that "the evidence [of other crimes] must have real probative value, not just possible worth, be close in time to the crime charged and be so related to the crime charged that it serves to establish intent." United States v. Johnson, 734 F.2d 503, 505 (10th Cir.1984). Cf. United States v. Rocha, 553 F.2d 615 (9th Cir.1977) and United States v. Marchildon, 519 F.2d 337 (8th Cir.1975). In Johnson, supra, the court held that evidence of other drug sales, which occurred up to seven months prior to the crime charged, was admissible to show intent to distribute.

In the instant case, evidence was introduced at trial that the appellant had sold drugs to a second informant on February 4, 1983, six days prior to the offense...