Smith v. State, F--75--621

Decision Date13 February 1976
Docket NumberNo. F--75--621,F--75--621
Citation1976 OK CR 45,546 P.2d 267
PartiesMinor C. SMITH, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

BLISS, Judge:

Appellant, Minor C. Smith, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Kay County, Case No. CRF--74--65, for the offense of Unlawful Delivery of LSD, in violation of 63 O.S.1971, § 2--401, B 1. His punishment was fixed at a term of not less than fifteen (15) years or more than twenty (20) years in the State penitentiary with assessment of fine in the amount of One Hundred ($100.00) Dollars. From this judgment and sentence a timely appeal has been perfected to this Court.

The State's first witness was John McAuliff who testified that he was employed as Chief Chemist for the Oklahoma State Bureau of Investigation, and further that he had occasion to examine and perform chemical tests on a substance on a blotter paper which had allegedly been given to one Steven Deems by the defendant. As a result of the tests performed on the blotter paper, he concluded the substance contained lysergic acid diethylamide (LSD).

Regarding the events surrounding the alleged tranfer of the LSD by the defendant to Steven Deems, the State sought to introduce the testimony of one Bianca Sue Keesee who had previously testified at the preliminary hearing and who failed to appear at trial. Defendant objected, which objection was overruled after a hearing outside the presence of the jury. The testimony was essentially as follows: Ms. Keesee had lived in Arkansas City, Kansas, since approximately February, and prior to that time had lived in Bartlesville, Oklahoma. She said she was a janitor at the junior high school, was 26 years of age and further that on the 23rd day of June, 1974, she saw the defendant at another person's home in Newkirk, Oklahoma, Ken Bellmard's house. She testified that she had made arrangements with law enforcement officials to purchase some LSD, specifically that she had made a deal to purchase 2,000 hits of LSD. She made a telephone call to Newkirk and during that conversation she was informed by Karl Kuykendall, from whom she was to buy the LSD, that he didn't have 2,000 hits at that time but that he did have 53 hits which he could sell. She testified that she told him she would call him later because she wanted the 2,000 hits and would have to talk to her partner about purchasing the 53 hits. She further stated that she had previously bought some LSD from one Kenny Bellmard and one Karl Kuykendall at Bellmard's house of Magnolia Street on the preceding Friday and Saturday, defendant being present during that time. She stated that she made a second telephone call on Sunday afternoon from the Sheriff's Office in Newkirk and that she talked with the defendant personally. She had talked to him previously over the phone, had met him in June, had seen him on numerous occasions at her home, defendant having baby sat for her and, therefore, recognized his voice. She was told by the defendant that Karl and Kenny were not there but he would sell the 53 hits to her. After calling, she waited at ths Sheriff's Office for Steve Deems, a detective with the Wichita Sheriff's Department. She related that upon Deems' arrival they proceeded in an undercover car to the Bellmard house with her purpose being to go in, purchase the LSD and then come back out. She stated that upon arrival, she walked up to the door, went inside and met the defendant while Deems waited outside in the car. She said the defendant did not want to sell to Steve Deems because he did not know him and was scared of him, but that he would sell to her. She further related how the defendant retrieved a baggie out of a pan in a room away from the front room and she said that the baggie was laying on a 'buffet type deal.' She said she received a plastic baggie with a pink paper with big blots on it, and that after the defendant gave her the baggie they proceeded outside to the car where she gave the baggie to Deems who in turn gave her five $20.00 bills to give to the defendants, which she did. She stated that the purchase price was to be $90.00, but all they had were twenties and no one had change. Also when she walked outside to the car a man by the name of Tate walked out with them. She testified that the defendant put the money in his pocket and thereafter she got into the car with Deems, drove away from the house and Deems radioed other officers to move in. When the officers approached the house she saw the defendant run from the house with the officers in pursuit.

On cross-examination she testified that in her telephone conversation with defendant it was agreed that since Karl, the person with whom she had made the original agreement to buy LSD, was not there the defendant would sell it to her. She said that the actual delivery was made in a hallway inside the house.

The State's next witness was Steven Deems who said that on the day in question he was employed with the Sedgwick County Sheriff's Department and that primarily he was assigned to the narcotics unit. He said that prior to that time he had been employed with the Kansas State Attorney General's Office and other various law enforcement agencies. On the 23rd day of June, 1974, he was working on a narcotics case and he went with Bianca Sue Keesee to a house on Magnolia Street in Newkirk, Oklahoma. Upon arrival he noticed a blue Volkswagen in the driveway with out-of-state tags on it and also another car which had Kay County tags. He described the house and the position of the front door and further related that Ms. Keesee left the car and walked to the front door which was not more than 30 or 40 feet away from him. The defendant answered the door and after a brief conversation she returned to the automobile and told him that the defendant had 'dope.' Deems instructed Ms. Keesee to tell the defendant he would not make any purchase until he saw the product. While she was at the front door defendant handed her what appeared to be a baggie, and she then returned to the car with it. Deems testified he examined the contents and observed that it contained several pieces of lavender paper with moisture spots on each one of them. He then gave Ms. Keesee five $20.00 bills which she gave the defendant. He stated there was a conversation between Deems and the defendant regarding a discrepancy in the change. Thereafter, Deems and Ms. Keesee drove away, Deems radioed the other officers to move in, and the defendant was arrested. He testified as to the chain of custody regarding the baggie he had received.

The defendant testified in his own behalf and stated that he had become acquainted with the Bellmard family, having been Lou Bellmard's roommate at Southeastern State College in Durant. During the summer he visited Bellmard at his home on Magnolia Street in Newkirk, he became acquainted with Ms. Keesee. He testified that at no time had he transferred ay LSD to Ms. Keesee, but that Ms. Keesee had come to the Bellmard home on the day in question, had come into the house and walked around for awhile. He stated he became nervous about the way things were going and ran out the back door, whereafter he was apprehended by the police. He then stated that he had been previously convicted of possession of marihuana in Arkansas City.

Defendant first urges the trial court committed reversible error when it permitted the State to read into evidence the preliminary hearing transcript of the testimony given by the State's witness Bianca Sue Keesee, after she failed to appear at trial.

The Sixth Amendment of the United States Constitution provides in part:

'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; . . .'

In Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926 (1965), the Supreme Court held:

'(T)he Sixth Amendment's right of an accused to confront the witnesses against him is . . . a fundamental right and is made obligatory on the States by the Fourteenth Amendment.'

In Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934, 937 (1965), the Court stated:

'(O)ur cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination; an adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation. . . .'

The Court, citing Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1894), went on to say:

"The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits . . . being used against the prisoner in lieu of a personal examination and cross-examination of the witness . . ." (380 U.S. 415 at 418, 85 S.Ct. 1074, at 1076, 13 L.Ed.2d 934)

In Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), the Supreme Court reversed defendant Barber's conviction because his right of confrontation had been infringed upon as a result of the State's introduction of a transcript of witness Woods' testimony given at the preliminary hearing after the witness failed to appear at trial, being absent from the state in a federal prison in Texas. Construing Barber, this Court in In re Bishop, Okl.Cr., 443 P.2d 768 (1968), found the crux of the Barber decision to:

'(L)ie in the recognized fact that the State made no showing that any effort whatsoever was made to return the witness from the federal penitentiary to testify and the Court recites the existing provisions which permit the return of a federal prisoner to testify in a State trial upon a proper request being made. Instead, however, it appears that the State merely relied on the fact that the witness was outside the...

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