Lynn v. State

• Decision Date: 24 January 1973
• Docket Number: No. A--16645,A--16645
• Citation: 505 P.2d 1337
• Parties: Clarence LYNN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1337

505 P.2d 1337

Clarence LYNN, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--16645.

Court of Criminal Appeals of Oklahoma.

Jan. 24, 1973.

Larry M. Weber, Altus, for appellant.

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

DECISION AND OPINION

BRETT, Judge:

Appellant, Clarence Lynn, hereafter referred to as defendant as he appeared at trial, was represented by court appointed counsel and was convicted by a jury in the District Court of Jackson County, Oklahoma, Case No. CRF--70--124, for the offense of unlawful sale of a stimulant. He was sentenced to serve five (5) years imprisonment and appeals.

Defendant argues his appeal under five propositions. The first one asserts that the trial court committed error when defendant's motion to strike the case from the docket was denied. Defendant was afforded a preliminary examination on January 8, 1971, after which he was bound over to stand trial. On January 12, 1971, defendant, while being formally arraigned, requested his statutory time to plead, so the following day, January 13th, he appeared with counsel and entered a plea of not guilty; and at the same hearing, defendant filed his motion to obtain the transcript of the preliminary hearing forma pauperis, which motion was granted. Defendant's trial was set on the docket for January 15th at which time the transcript of preliminary examination was delivered to defense counsel.

On January 18th defendant filed his motion to strike the case from the docket for the reason he had not been allowed at least ten days from the date of arraignment to prepare for trial, arraignment having been on January 13th; and also because defense counsel had just been provided with the copy of the transcript of preliminary examination. Defendant's motion was denied and trial was commenced the following day, January 19th. The record reflects further that defendant served a subpoena upon one Arthur Parks, who failed to appear to testify; and on January 19th the trial court entered a bench warrant for his arrest.

In support of this proposition defendant relies on this Court's decision in Mitchell v. State, Okl.Cr., 395 P.2d 814 (1964), wherein it was stated:

'Although no definite time between time of arraignment and time of trial is fixed by law, ordinarily, felony cases should not be assigned for trial in less than 10 days after plea is entered.' At page 816. See also: Reynolds v. State, 60 Okl.Cr. 92, 61 P.2d 269 (1936).

The Attorney General argues in his brief that the defendant 'had actual notice of the charge . . . more than one month prior to trial'; and, 'The defense did not ask that a reasonable continuance be granted.' But neither argument answers the defendant's complaint. The transcript of preliminary examination was the tool with which defense counsel could properly cross-examine the State's witnesses; and notwithstanding the fact that 'defense counsel made extensive use of the preliminary transcript to cross-examine witnesses for the State.', as argued by the Attorney General, one day to study 139 pages of transcript is not reasonable. Also, whether to strike the case from the docket, or whether to reset it at the tail of the docket, was a decision for the trial court to make. Under the circumstances revealed by the record, the case should have been at least reset at the tail of the docket, which would have satisfied defendant's request, and would have more nearly met the reasonable time requirement. Were this a close case, this denial would no doubt constitute reversible error.

The facts in this case reveal that two undercover agents were being used by the Jackson County Sheriff, Mr. Jay Lowell, a specially hired agent, and Mr. Sid Cookerly, an agent with the Oklahoma Bureau of Investigation. Arthur Parks and Nancy Standerfer were both informers used by one of both of the agents. Nancy Standerfer received pay from Agent Cookerly, but Parks was not a paid informer. At one time defendant either offered, or was requested, to be an informer for Agent Cookerly. but because defendant did not provide the information desired, the agent became provoked at him and disavowed his services.

For some reason or another, ¹ Arthur Parks went to Weatherford, Oklahoma, on December 8, 1970, where he located the defendant and told defendant that he would assist defendant in 'hiding out,' because defendant was allegedly being sought by either the police or Agent Cookerly. So, on December 9th informer Parks took defendant to a house which Parks rented, at 1101 North Hudson in Altus, Oklahoma. That same evening Arthur Parks brought to the house at 1101 North Hudson, four packages of LSD containing twenty-five tablets each, and one package of mescaline containing twenty tablets. Parks testified that after he distributed the tablets to the various people at the house without any charge, he told them not to sell any of it; however, the other witnesses testified that he made no such admonition.

On December 10th the Sheriff of Jackson County called Agent Sid Cookerly to come to Altus to assist in a narcotics investigation. Cookerly notified Nancy Standerfer in Oklahoma City, who was his paid informer, to come to Altus to assist him; and she arrived at the Sheriff's office that evening. At a meeting in the Sheriff's office that evening, concerning how the 'buy' was to be accomplished, Nancy Standerfer was instructed to go to Thelma's Cafe--which local drug users frequented--and make a contact. Among those present at the meeting in the Sheriff's office, other than Nancy Standerfer, were: Arthur Parks, the other informer; Jay Lowell, the Special Agent; and Sid Cookerly, the Bureau Agent. The testimony indicated Arthur Parks was 'in and out' of the room, but the established fact was that he was there. At the conclusion of the meeting Nancy Standerfer went to the cafe, and Arthur Parks returned to 'his house' at 1101 North Hudson.

Soon after Parks arrived at 'his house,' Parks told the others that he was hungry and wanted some food from Thelma's, so it was decided someone would go to Thelma's Cafe and pick up an order of food. Gordon Spriggs went to the cafe to get the food. While Spriggs was there, Nancy Standerfer said to him, 'come over here, I want to talk to you.' Consequently, Spriggs and Nancy became acquainted. Having made her contact, both of them left the cafe together and went to 1101 North Hudson. While Nancy was at the house Gordon Spriggs gave her a tablet of LSD, which she put in her mouth and attempted to imbed it in her 'Bubble-gum,' to keep from becoming 'high' on LSD. But notwithstanding her efforts, some of The LSD entered her system. She testified she stayed awake all night, being attended by Agent Cookerly. The testimony revealed also that Arthur Parks had a room at the Sagmar Motel, where Nancy was staying, even though he rented the house at 1101 North Hudson.

On the morning of December 11th, at about 11:50 a.m., Nancy Standerfer and Arthur Parks left the motel together and went to the house at 1101 North Hudson. While they were there defendant asked Nancy Standerfer 'how she liked the LSD.' She replied that it was all right and said that 'she would like to have another one for later.' Nancy testified that defendant said, 'wait a minute'; and he went to where Gordon Spriggs was, for about a minute or two. She related that he returned and removed a plastic package from his pants pocket and gave her one LSD tablet, for which Nancy gave defendant two one-dollar bills; she said that defendant put the bills in his pocket. However, both Gordon Spriggs and defendant testified that Spriggs did not give defendant a package of LSD, but instead he gave defendant only one LSD tablet to defliver to Nancy Standerfer. Likewise, they both testified that defendant gave the two one-dollar bills to Spriggs. It was for that alleged sale of LSD defendant was later arrested, tried, and convicted.

On December 11th, when the arrests were made at 1101 North Hudson, defendant arrived while the arrests were in progress. Defendant was prevented from leaving by Jay Lowell, who frisked him for weapons and found none. When defendant was taken into the house he insisted that the police search him. Finally, one of the officers did search defendant, but not immediately upon demand. When defendant was searched no narcotics were found on him. Defendant was not arrested at that time, but instead he was instructed by Jay Lowell to report to the Sheriff's office. Defendant testified that at the Sheriffs' office, Jay Lowell took him to an investigation room and told defendant, 'I want you out of my town by tomorrow morning.' Defendant left and went back to Weatherford. Defendant was later arrested in Weatherford on the night of December 14, 1970, and was returned to the Jackson County Jail.

When Arthur Parks, the informer, testified he admitted that he had talked to Agent Cookerly before goint to Weatherford; that he went to Weatherford to find the defendant; and when he found the defendant, he told defendant he was in trouble; so, Parks offered and did take defendant to 'his house' in Altus. Parks admitted that he was involved in taking the LSD and mescaline tablets to 'his house' at 1101 North Hudson and distributed them among the people staying there. He also testified that he was at the Sheriff's office during the progress of the meeting with Nancy Standerfer, but he denied that he was a part of the meeting. He admitted to being an informer, but not a 'paid informer.' He testified that it was he who said he was hungry, 'and I wanted to get something to eat out at Thelma's.' Parks amitted being in the house when the alleged sale occurred, but said he did not see it being made.

It is not necessary to summarize the testimony of all the witnesses, because the validity, or invalidity, of this conviction revolves around the testimony of the informers. The tablet examined by the Oklahoma Bureau of...