Nottingham v. State

• Decision Date: 24 January 1973
• Docket Number: No. A--16683,A--16683
• Citation: 505 P.2d 1345
• Parties: Dennis B. NOTTINGHAM, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1345

505 P.2d 1345

Dennis B. NOTTINGHAM, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--16683.

Court of Criminal Appeals of Oklahoma.

Jan. 24, 1973.

F. R. Courbois III, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Fred Anderson, Asst. Atty. Gen., Frank Muret, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Dennis B. Nottingham, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County for the offense of Possession of Marijuana; his punishment was fixed at seven (7) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, Officer Scott testified that on September 10, 1970 he and other officers went to 1705 N.W. 40th Street in Oklahoma City to execute a search warrant. Upon arriving, they were admitted into the house by two young women, one being the wife of the defendant. The defendant's wife stated that he was at work at American Optical Company. The officers found a clear plastic 'baggie' containing marijuana and a hand-rolled marijuana cigarette lying on the table in the dining room. On the buffet, they found a shoe box containing a marijuana substance and a brass smoking pipe. A pill bottle containing marijuana seeds was also found in the same room. In the southeast bedroom they found a ten-gallon drum containing approximately two pounds of marijuana and a plastic sack which contained several marijuana plant stems. In the back yard of the residence they pulled up approximately 25 marijuana plants growing in a flower bed.

John McAuliff, a chemist with the Oklahoma State Bureau of Investigation, testified that he received the items identified by Officer Scott. He made a chemical analysis of the items and was of the opinion that they were cannabis sativa, or commonly known as marijuana.

Officer Robertson testified that he assisted the other officers in executing the search warrant. He identified certain photographs he took at the residence and in the back yard.

The State rested and, prior to the introduction of the defendant's evidence, requested permission to reopen its case for additional evidence.

Over the objection of the defendant, Officer Legg testified that he assisted in the search of the residence at 1705 N.W. 40th Street in Oklahoma City. He testified that the defendant was not present at the time of the search.

Detective Don Schimmels testified that he placed the defendant under arrest on the 10th day of September at the American Optical Company where he was working. The defendant was transported to the police station and during the booking process, the defendant gave his address as 1705 N.W. 40th

For the defense, Margaret Webster, the defendant's mother, testified that he was twenty-four years old, married and had a three-month old child. She further testified that to her knowledge the defendant had not been in any 'criminal trouble,' and that his general character and reputation was good.

The first proposition asserts that the search of defendant's residence was unlawful in that the purported search warrant used to gain entry to the defendant's premises was invalid and defendant's motion to suppress should have been sustained. The record reflects that the search warrant was issued to the sheriff or any peace officer of Oklahoma County, Oklahoma directing them to search '1705 N.W. 40th, a one story brick and frame dwelling located in the northwest corner of the back yard.' The Court has previously held that the town where a search is intended to take place must be set out in the search warrant. Tucker v. State, 45 Okl.Cr. 68, 281 P. 818 (1929), Champion v. State, 50 Okl.Cr. 392, 298 P. 303 (1931), and Ward v. State, Okl.Cr., 293 P.2d 618 (1956).

Although this Court does not condone the sloppy preparation of the search warrant, we are of the opinion that because of the unusual circumstances in the instant case that the omission of the name of the city is not fatal. The Court of Criminal Appeals of Texas, in dealing with a similar proposition in Ex parte Flores, 452 S.W.2d 443 (1970), stated:

'* * * There is nothing in the records before us to show or suggest that premises such as described in the affidavit for issuance of the search warrant may be found in Nueces County other than in the City of Corpus Christi.

'All that is required is that the affidavit or search warrant describe the premises to be searched with sufficient definiteness to enable the officer executing the warrant to locate the property and distinguish it from other places in the community. Rhodes v. State, 134 Tex.Cr.R. 553, 116 S.W.2d 395.'

In the instant case, the affidavit for search warrant reflects that the affiant, Officer Legg, received information from an informer, who had given reliable information in the past, that there were approximately twenty-five marijuana plants growing in the back yard at 1705 N.W. 40th. Based upon this information, the affiant walked down the alley behind the state address and could easily observe the marijuana plants, which had been freshly watered, in the back yard. Officer Legg subsequently with the assistance of other officers, executed the search warrant. 79 C.J.S. Searches & Seizures, § 81, p. 891, 40.5, states:

'However, where the error in a description is at worst innocent and technical, and there is additional descriptive language in the warrant, personal knowledge of officer executing the warrant is an element to be considered in determining the sufficiency of the description.'

We thus conclude that the description of the premises in the search warrant combined with the knowledge of Officer Legg, who executed the search warrant, was sufficient to enable him to locate the property and distinguish it from other places in the community. We further observe there is nothing in the record before us to show that the premises, as described in the search warrant, may be found in Oklahoma County other than in the City of Oklahoma City. In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, the United States Supreme Court stated:

'* * * If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.'

The second proposition contends that the trial court abused its discretion in allowing the State to reopen its case after having once rested and after the defendant demurred to the State's evidence. In Jones v. State, Okl.Cr., 453 P.2d 319, we stated:

'It is next contended that the trial court erred in allowing the State to reopen the case after the defendant had interposed a Demurrer to the evidence in chief. We have repeatedly held that it is discretionary with the trial court to reopen a case for the purpose of introducing further evidence, and unless a clear abuse of such discretion appears, no question is presented for review on appeal. * * *'

In sustaining the State's motion to reopen, the trial court stated:

'Well, the Court has not ruled on the demurrer to the evidence and the motion to advise the Jury to acquit the defendant. We did hear argument on it. However, in view of the fact that the witness Legg was not here Monday and the Court denied a continuance and he--it appears that he is here today to testify, the Court will permit the State to reopen its case to offer further evidence and at the conclusion of the additional evidence offered will give the defendant an opportunity to restate his motions to the evidence of the State.' (Tr. 56)

Under said circumstances, we are of the opinion that the trial court did not abuse its discretion in allowing the State to reopen its case.

The final proposition asserts that 'the evidence is totally insufficient to convict the defendant of possession of marijuana and the defendant's demurrer should have been...