Wilson v. State, F-77-89
| Decision Date | 08 September 1977 |
| Docket Number | No. F-77-89,F-77-89 |
| Citation | 568 P.2d 1315 |
| Parties | LaVan WILSON, Jr., Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Appellant, LaVan Wilson, Jr., hereinafter referred to as defendant, was charged in the District Court, Comanche County, Case No. CRF-75-927, with Delivery and Distribution of Marihuana, in violation of 63 O.S.1971, § 2-401, After Former Conviction of a Felony. Defendant was tried by a jury in a two stage proceeding and convicted of Delivery and Distribution of Marihuana, but not After Former Conviction of a Felony. Punishment was assessed at a term of ten (10) years in the penitentiary and a fine in the amount of One Hundred ($100.00) Dollars. From said judgment and sentence a timely appeal has been perfected to this Court.
Briefly stated the facts revealed the following. Richard Hunt, a member of the Comanche County Sheriff's Department Reserve, along with informer Bill Lacy and undercover officer Richard Briley conducted a drug investigation concerning the defendant. Supervising officer Bill Banks gave Hunt eight $20.00 bills which were to be used in purchasing marihuana from the defendant. Hunt, Lacy, and Briley went to the defendant's residence where Hunt inquired of the defendant about buying some marihuana. Defendant quoted him a price of $20.00 per lid. After receiving the money from Hunt, the defendant told them to follow him to another location. Conflicting testimony revealed that upon arriving at their destination, the defendant proceeded into the apartment of one Herbert Wilson without first knocking. Also contradictory was testimony stating that both the defendant and Wilson went into the bedroom from which Wilson returned carrying eighteen small plastic bags, each containing a green leafy substance. The money was counted out on the table and Hunt placed the bags in a grocery sack and left. The sack was given to Briley who identified and marked the bags with his initials and the date and locked them in a cabinet in his office. The next day on October 23, 1975, Briley went over the evidence and placed the bags in a standard O.S.B.I. envelope. He signed, sealed, stapled and dated the envelope. Further testimony indicated that the janitor used trustees to clean the offices, and that some trustees had been caught taking liquor and other items out of the Sheriff's Office.
On January 6, 1976, after receiving a subpoena for trial, Briley turned the envelope over to the O.S.B.I. Laboratory. Briley stated that the envelope appeared to be in the same condition in which he had left it. O.S.B.I. forensic chemist, Albert Gray identified the contents of the bags as cannabis sativa and after the preliminary hearing, he resealed the envelope with evidence tape.
In the subsequent search of the defendant's residence, Officer Banks found nine $20.00 bills, five of which matched the recorded serial numbers of the bills he had given to Hunt. Banks made photostatic copies of the bills which the court admitted into evidence as to the serial numbers only. Defendant stated that the money was in payment of a loan and not from the sale of marihuana.
The jury returned a verdict of guilty of Delivery and Distribution of Marihuana but in the second stage of the trial, the defendant was found not guilty of a prior felony conviction.
Defendant's first assignment of error is that the trial court erred in admitting the marihuana into evidence, which defendant contends was not properly preserved to secure its identity. Defendant complains that because the evidence was left in a file cabinet in a locked office for a period of 75 days, because there were three additional keys to the office, including one given to a janitor who used trustees to help clean the offices, and because Briley was not always in the office there was a lack of reasonable certainty that there had been no alteration or tampering with the evidence. In Hauschildt v. State, Okl.Cr., 554 P.2d 77, 80 (1976), we stated:
" . . . Once it is shown to the court that the evidence was preserved under the circumstances reasonably certain to maintain its integrity, it is proper for the trial judge to admit the evidence and let what doubt there may be go to its weight. . . . " (Citations omitted)
See, McKee v. State, Okl.Cr., 532 P.2d 472 (1975); Racy v. State, Okl.Cr., 520 P.2d 375 (1974); and, Trantham v. State, Okl.Cr., 508 P.2d 1104 (1973).
On carefully reviewing the record we find that there were circumstances which reasonably preserved the identity of the marihuana. Briley testified that after receiving the bags containing a leafy substance from Hunt he dated and initialed each of the plastic bags. The next day he inserted the bags into a standard OSBI Laboratory envelope and after signing, sealing and stapling it he placed the envelope back in the cabinet which was kept locked in his office. Seventy-five days later, Briley stated, the envelope appeared to be in the same condition as he had left it. There were no tears or other signs of tampering with the envelope, and the seals and staples were intact. Briley then took the envelope to the OSBI Laboratory for examination and identification. He explained the time lapse by stating that he had forgotten to take the envelope to the lab and did not remember until receiving a subpoena to come to trial. Although 75 days is a lengthy period of time, and during such time trustees had access to the office where the envelope was kept, we believe that it is highly unlikely and mere speculation that the envelope containing the marihuana was tampered with. We have held that the State is not under a burden of absolutely negating all possibility of substitution and/or tampering with evidence while the same is under the control and custody of law enforcement agencies. Clark v. State, Okl.Cr., 558 P.2d 674 (1977); Contu v. State, Okl.Cr., 533 P.2d 1000 (1975). The first assignment of error is without merit.
In his second assignment of error defendant asserts that the trial court erred in allowing into evidence...
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