Rhyne v. State, A--18004

• Decision Date: 12 September 1973
• Docket Number: No. A--18004,A--18004
• Citation: 514 P.2d 407
• Parties: Sally Marie RHYNE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 407

514 P.2d 407

Sally Marie RHYNE, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--18004.

Court of Criminal Appeals of Oklahoma.

Sept. 12, 1973.

Charles V. Foor, McAlester, for appellant.

Larry Derryberry, Atty. Gen., Michael Cauthron, Asst. Atty. Gen., Daniel J. Gamino, Legal Intern, for appellee.

OPINION

BLISS, Presiding Judge:

The appellant, Sally Marie Rhyne, hereinafter referred to as defendant, was charged, tried and convicted along with her co-defendant, Hollis W. Justice, in the District Court of Pittsburg County, Case No. F--72--56, for the offense of Possession of Dangerous Drug in State Penal Institution, and her punishment was assessed at five (5) years imprisonment in the state penitentiary. From said judgment and sentence, a timely appeal has been perfected to this Court.

The conviction of co-defendant Justice was recently affirmed by this Court in 512 P.2d 1389 and the facts were therein adequately and correctly recited essentially as follows:

Gordon Wright, Chief Security Officer of the Oklahoma State Penitentiary, testified that on the 12th day of April 1972 at approximately 7:07 a.m. he entered the classification office of the penitentiary where the defendant Rhyne was employed as a civilian employee. He observed Rhyne hand a plastic bag to the co-defendant Justice. Rhyne's purse was open. Justice took the bag and placed it on the bottom shelf of a file cabinet, concealing it with a peanut can. Mr. Wright walked to the next office and directed Pete Douglas to come and retrieve whatever Justice had placed in the file cabinet. Douglas reached into the file cabinet and pulled out a plastic bag containing various pills. Rhyne said that she had to go to the bathroom and left, taking her purse with her. He then identified State's Exhibit 7 as the plastic bag handed him by Pete Douglas.

Peter Douglas, Classification Officer of the Oklahoma State Penitentiary, testified that on the morning in question he was sitting in the adjacent office having coffee when Mr. Wright called him to come to the middle of the classification office. At Wright's direction, he reached into a file cabinet and found a plastic bag containing a variety of pills. He testified that he had to move a peanut can in order to reach the plastic bag. Approximately thirty minutes later, he searched the restroom and found, in the wastepaper basket, a plastic bag containing two pills similar to those he found earlier.

The parties stipulated that the exhibits were subsequently delivered to Don Flynt, chemist with the Oklahoma State Bureau of Investigation.

Don Flynt testified that he performed a chemical analysis of the contents of the bags and found that they contained amphetamines, barbiturates and combinations thereof.

Don Wallach, an agent with the Oklahoma State Bureau of Investigation, testified that on April 13, 1972, he interrogated Rhyne at the Tulsa Police Department. He advised her of her constitutional rights and after ascertaining that she understood the same, took a signed statement from her. Miss Rhyne admitted that she took the pills into the penitentiary and gave them to the co-defendant.

Officer McMillan's testimony did not differ substantially from the testimony of Agent Wallach.

Defendant Rhyne testified in her own behalf. She denied bringing contraband pills into the penitentiary at any time. She testified that her purse was open on her desk because she had just taken a headache tablet. Defendant testified she just glanced up and saw Justice with pills in his hand. She stated she never held the pills in her hand. She also testified that she took large doses of prescribed medication the morning of her confession to calm her nerves. She said the medication affected her state of mind during the confession and that Mr. Wallach promised her help if she would confess.

Howard L. Ary, Correction Officer, Oklahoma State Penitentiary, testified that it was his job to search people coming in and out of the penitentiary. He testified that on April 12, 1972 he looked in defendant's purse when she entered the penitentiary and saw nothing suspicious. He also testified that there was nothing unusual about defendant's speech or conversation that morning.

Alvin Brock, Minister of the Trinity Baptist Church, McAlester, and J. B. Harring, operator of a local mobile home park and motel, both testified as to defendant's good character.

The defendant's first proposition asserts that the trial court ocmmitted reversible error in not granting a mistrial or severance in favor of the defendant after learning that co-defendant Justice had not been arraigned in the District Court nor had he been assisted by counsel until the morning of the trial. The defendant is actually contending that if the trial court lacks jurisdiction over a co-defendant then the trial court must grant a mistrial with respect to the other co-defendant, even though that defendant had been properly arraigned and is properly before the Court.

This Court, in the Justice case, supra, found that co-defendant Justice, with counsel, announced ready and proceeded to trial. We therefore held that where the defendant announces ready and proceeds to trial without objection, he thereby waives his right to an arraignment and plea, citing Hutchinson v. State, Okl.Cr., 278 P.2d 858. Therefore, if co-defendant Justice was...