Mathes v. State, F--75--515

• Decision Date: 14 July 1976
• Docket Number: No. F--75--515,F--75--515
• Citation: 552 P.2d 415
• Parties: David L. MATHES, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 415

552 P.2d 415

David L. MATHES, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--515.

Court of Criminal Appeals of Oklahoma.

July 14, 1976.

Clair W. Yon and Gary L. Brooks, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Mary Ann Karns, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, David L. Mathes, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRF--74--3114, for the offense of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, Second and Subsequent Offense, in violation of 47 O.S.1971, § 11--902. His punishment was fixed at a term of five (5) years' imprisonment and a fine in the amount of Seven Hundred and Fifty ($750.00) Dollars, and from said judgment and sentence a timely appeal has been perfected to this Court.

In the first stage of the trial, the first witness to testify for the State was Oklahoma Highway Patrolman Charles Robert Rumble, who testified that on the night of September 15, 1974, at approximately 10:00 p.m., he and Oklahoma County Deputy Sheriff Gordon Martin were on patrol duty near the intersection of Interstate Highways 240 and 35 in Oklahoma County. They had observed three vehicles parked on the shoulder of an access road to Interstate Highway 35 and went to investigate. The patrolmen parked the patrol vehicle on the shoulder of the access road in front of the three vehicles; the head and taillights were in operation as well as the emergency lights. As Rumble started to exit from the patrol vehicle, it was struck in the rear on the left side by another vehicle which caused the door post to strike the patrolman and throw him back in the car against the steering wheel. He sustained injuries to his left shoulder and leg, and remained in the patrol vehicle while Deputy Sheriff Martin went to check on the driver of the other vehicle.

Deputy Martin escorted the driver of the vehicle to the patrol car and placed him in the passenger seat. Patrolman Rumble testified that the driver, whom he identified in court as the defendant, sat in the seat holding his face with his hands. He stated that the defendant had blood around his nose, and that there was a strong odor of alcohol about the defendant's person. Approximately 15 minutes after the collision, Patrolman Rumble and the defendant were transported by ambulance to the South Community Hospital.

Deputy Sheriff Gordon Martin of Oklahoma County was the next witness to testify for the State. He testified that after the collision he walked over to the defendant's vehicle and saw the defendant slumped over the steering wheel. The defendant was bleeding from a laceration over his right eye. He also testified that when he spoke to the defendant, the defendant appeared to be uncertain of what was going on and there was a strong odor of alcohol on his breath. The defendant's speech was slurred and he required the assistance of the deputy to walk to the patrol car.

Deputy Martin further testified that based upon his experience as Oklahoma County jailer, in which capacity he had observed numerous persons whom he felt to be under the influence of intoxicating liquor, and his observations of the defendant, it was his opinion that the defendant was intoxicated at the time of the collision.

Deputy Martin also testified that prior to the collision he had observed the defendant's vehicle as it came off an exit ramp onto the access road where he and Patrolman Rumble were traveling on their way to investigate the three parked vehicles. The defendant failed to yield as he drove onto the access road and missed colliding with the patrol car by one or one and a half feet. It was only moments after this incident that the defendant's car collided with the patrol car.

Further testimony by the deputy revealed that it had been raining throughout the day and at the time of the collision a light rain was falling.

The last witness to testify for the State in the first stage of the proceeding was Oklahoma Highway Patrolman Mike LaPuzza. He testified that on the night in question he was called to investigate the collision between the defendant's vehicle and the patrol vehicle. Based upon the damage to the two vehicles, he estimated that the defendant's vehicle had been traveling at 35 to 40 miles an hour at the time of impact. He also indicated that the patrol vehicle had traveled approximately 15 feet after the impact.

Upon completion of his investigation at the accident scene, Patrolman LaPuzza went to the South Community Hospital where he talked with Patrolman Rumble and questioned him as to the circumstances surrounding the accident. He then went to the emergency room where the defendant was being treated and thereupon advised the defendant that he was under arrest for driving while under the influence of intoxicating liquor, read him his Miranda rights and informed him of the provisions of the implied consent law. He stated that the defendant refused to sumbit to a blood alcohol test.

The patrolman testified concerning the appearance of the defendant at the hospital and stated that he had an injury to his right eye, that his movemetns seemed to be slower than normal, his speech was slurred and there was an odor of alcohol about his person. In the patrolman's opinion the defendant was 'extremely intoxicated,' rather than behaving in an irregular manner because of the head injury.

Following the testimony of this witness, the State rested and the defendant did not present any evidence or himself testify.

In the second stage of the proceedings, two judgment and sentences were introduced into evidence showing that on two separate and previous occasions the defendant had been convicted of driving while under the influence of intoxicating liquor and driving while under the influence of intoxicating liquor after former conviction of driving while under the influence of intoxicating liquor. Docket sheets appurtenant to the two former convictions were also introduced into evidence, revealing that the defendant had been represented by counsel in the prior proceedings.

Ronald E. Mills of the Oklahoma City Police Department testified that he had arrested the defendant in the prior case that led to his conviction of driving while under the influence of intoxicating liquor, after former conviction of driving while under the influence of intoxicating liquor. He identified the defendant as the man he had arrested on such previous occasion. Following the instructions by the court and argument by counsel, the jury fixed the defendant's punishment at five (5) years' imprisonment and a fine of Seven Hundred and Fifty ($750.00) Dollars.

The defendant presents six assignments of error, and in the first it is contended that the District Court erred in summarily overruling defendant's motion to suppress, to quash, to reconsider, for continuance and demurrer without an opportunity to present evidence or legal argument. An examination of the record reveals that in the preliminary hearing the defendant demurred to the evidence of the State and moved to suppress the testimony of Patrolman LaPuzza, alleging that the arrest of the defendant was illegal. The demurrer and motion to suppress were overruled. Subsequent to the preliminary hearing, defendant filed a motion to quash and demur and a motion to suppress. In the motion to quash the defendant requested a hearing to offer evidence in support of such motion and demurrer. On the same day of the filing of these motions the District Judge, by memorandum, overruled all of the motions of the defendant. An entry in the docket sheet also reflects that all the defendant's motions were overruled. Subsequently, the defendant filed a motion to reconsider and requested oral argument on said motions. The docket sheet shows that the motion to reconsider was overruled. Next, the defendant filed a motion to dismiss. In the judge's chambers, prior to the trial, the motion to dismiss was argued and overruled. The defendant moved for a continuance and it was also denied. A motion to suppress was argued and it too was overruled.

From this lengthy presentation of the motions presented by the defendant, it is clear that he had ample opportunity to present his objections to the information, evidence against him, and the alleged illegal arrest by Patrolman LaPuzza.

Concerning the motion to quash being summarily overruled and denying the defendant an opportunity to present evidence, we do not consider this issue because the defendant did not comply with the verification requirements of 22 O.S.1971, § 494. The law is well established that if a motion to quash does not allege that the defendant is in good faith or if such motion is not verified, the Court has no alternative but to hold that the unverified motion is not properly before the Court. Mahan v. State, Okl.Cr., 508 P.2d 703 (1973), Nichols v. State, Okl.Cr., 418 P.2d 77 (1966).

In regard to the demurrer, we find no error in the District Court's action of overruling it. Title 22 O.S.1971, § 507, provides that if the Court sustains or overrules a demurrer, it must enter an order upon the minutes to that effect. As we noted above, the record shows that the District Court filed a memorandum overruling defendant's demurrer and there is an entry in the docket sheet to the same effect.

Considering all of the above, we find no prejudice to the rights of the defendant concerning his pretrial motions and, therefore, we find this assignment of error to be without merit.

In his second assignment of error, the defendant contends there is error in overruling the motion to suppress and to strike the testimony of Patrolman LaPuzza at the preliminary hearing and trial because the arrest of the defendant by said patrolman was illegal. The defendant contends that arrest was illegal because it was for a misdemeanor not committed in...