Woods v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: BLISS; BRETT; BUSSEY; BRETT
• Citation: Woods v. State, 526 P.2d 944, 1974 OK CR 162 (Okla. Crim. App. 1974)
• Decision Date: 03 September 1974
• Docket Number: No. O--74--53,O--74--53
• Parties: Roy Lee WOODS, Appellant, v. The STATE of Oklahoma, Appellee.

Page 944

526 P.2d 944

Roy Lee WOODS, Appellant, v. The STATE of Oklahoma, Appellee.

No. O--74--53.

Court of Criminal Appeals of Oklahoma.

Sept. 3, 1974.

Roy Lee Wood, appellant, appeals from an order revoking his suspended sentence. The order revoking suspended sentence is affirmed.

Oyler & Smith, Oklahoma City, for appellant.

Larry Derryberry, Atty. Gen., Bill Bruce, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Presiding Judge:

In the District Court, Oklahoma County, Case No. CRF--71--2327, appellant, Roy Lee Woods, entered a plea of guilty for the offense of Rape in the Second Degree and on February 15, 1972, assessed a three (3) year suspended sentence. On May 3, 1973, an application to revoke said suspended sentence was filed and on July 24, 1973, at a hearing on the application defendant's sentence was revoked. From that revocation proceeding defendant has timely perfected an appeal to this Court.

The facts reveal that while defendant was on probation for the above mentioned three year suspended sentence, he was charged with the offense of Assault with a Deadly Weapon with Intent to Kill. This charge was filed on November 15, 1972. A jury trial was held on February 14, 1973, and was mistried for the reason the jury could not deliberate a verdict to a conclusion. On June 20, 1973, on retrial of the assault case this case was dismissed with prejudice as the State did not prove diligence in showing why they failed to present prosecuting witnesses. On April 29, 1973, the defendant was arrested for the offense of Public Intoxication. On April 30, 1973, in the Municipal Court of Oklahoma City, he entered a plea of guilty for the offense and paid a fine of twenty ($20.00) dollars.

At a hearing on revocation three witnesses from the Oklahoma City Police Department testified concerning the arrest of the defendant on April 29, 1973. Officer Duane Carruth testified that he arrested the defendant at approximately 1:00 a.m., April 29, 1973, outside of a local nightclub and that at the time of the arrest, defendant had a strong odor of alcohol about his person and could not stand without assistance. Upon taking defendant into custody, Carruth instructed defendant he was under arrest for public drunk. However, Carruth did not inform defendant of his constitutional rights.

Officer David McBride, also of the Oklahoma City Police Department, testified to a conversation he had with defendant at the police station prior to his booking on the public drunk charge. During this conversation defendant discussed his activities relating to the alleged assault incident on November 12, 1972. McBride stated that it was the defendant who initiated the conversation and since there was no interrogation involved he did not discuss constitutional rights with the defendant.

The third State's witness, Officer Harold P. Neal, testified that he accompanied Officer McBride during the conversation with the defendant, and that he did not explain to defendant his constitutional rights.

Defense counsel argues in his first proposition the evidence adduced at the revocation hearing is not legally sufficient to sustain the court's finding that probationer's suspended sentence should have been revoked. Counsel argues that; evidence adduced regarding an offense alleged in the revocation application violated the defendant's privilege against double jeopardy as defendant was acquitted for that offense; that evidence of irrelevant offenses, not alleged in the revocation application was improperly admitted; that the transcript of preliminary hearing on one offense alleged in the application was improperly admitted into evidence; that the application for revocation alleged a conviction for the offense of public intoxication and such an allegation was insufficient to give proper notice to defendant evidence would be taken for the offense of public intoxication rather than the mere admission of the judgment and sentence on conviction; and that admissions made by defendant to the arresting police officers were made without the predicate of proper Miranda admonitions.

Before considering each one of these arguments separately, it is first important to note that 22 O.S.1971, § 991b, specifically requires the revocation of probationary status be founded upon 'competent evidence.' It is important to further note, however, that from a constitutional standpoint, the requirement of due process is generally satisfied by a proceeding which is fundamentally a fair one. A probationer is not entitled to the full panoply of constitutional rights in a hearing of this nature. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). See also In re Collyar, Okl.Cr., 476 P.2d 354 (1973). It is with the above mentioned standard construed in light of the language of 22 O.S.1971, § 991b, that defendant's arguments must be analyzed. We, therefore, will conduct an analysis of each one of these arguments separately.

Defense counsel argues the evidence regarding the offense of Assault with a Deadly Weapon with Intent to Kill was inadmissible as the case was dismissed on its merits, with prejudice, for the reason the State, at the second trial, failed to show due diligence in obtaining State's witnesses. For the above reason the court suppressed the transcript of testimony adduced at the first trial. In substance counsel argues this Court is compelled to hold that upon an acquittal or dismissal of a case upon its merits, and in an instance where a revocation of probation is pending for that alleged offense, the trial court conducting the revocation proceeding is estopped from considering that evidence and that offense as a basis for revocation.

In the case of Marutzky v. State, Okl.Cr., 514 P.2d 430 (1973), this Court discussed the application of the rule of res judicata, estoppel, and its application to revocation proceedings. In Marutzky, supra, this Court entertained the issue of estoppel under circumstances where two revocation hearings were conducted for the same offense with the first revocation proceeding culminating with a dismissal of the revocation application upon its merits. The subsequent application was initiate in the same court requesting a revocation of probation for the same offense. However, at the second revocation proceeding a judgment and sentence, which had been entered subsequent to the former revocation proceeding, was introduced and this judgment and sentence was the sole basis for the revocation of probation. We held in Marutzky, supra, that the introduction of the judgment and sentence at the second hearing was sufficient to constitute a significant variation in the facts. Such a significant variation following the prior revocation proceeding was sufficient to provide new evidence upon which the revocation could be predicated. Consequently, the rule of estoppel was not applied in that case.

It then would appear that the rule of estoppel may be properly applied in revocation proceedings. However, such application would ordinarily be confined to multiple revocation hearings all predicated upon the same issues and evidence. The extension of the rule of estoppel barring the admission of evidence regarding a criminal offense for which probationer has been tried and acquitted cannot be considered in detail in this opinion. First of all we note, in the instant case the probationer was not acquitted of the offense upon a finding of fact by the trier of facts. The dismissal resulted as a matter of procedural defect. Consequently, in this instant case a trier of the facts did not exonerate probationer. It is this Court's opinion that if probationer is not acquitted by the trier of facts upon the issue of whether an offense was committed and he committed it, there can be no application of the rule of estoppel to a subsequent revocation proceeding conducted on the same evidence. Consequently, we find estoppel is not an issue in this case.

Defendant next alleges evidence of an offense not alleged in the application to revoke was improperly admitted. This evidence involved declarations made at the time defendant was arrested. These declarations tend to show defendant's state of intoxication at the time of arrest. For this reason they were admissible. We therefore find this proposition to be without merit.

Defense counsel next argues that the transcript of the preliminary hearing for the offense of Assault with a Dangerous Weapon with Intent to Kill was improperly admitted into evidence for the reason the State did not show diligence in obtaining this testimony by subpoenaing the witnesses and showing their unavailability. Counsel's assignment of error in this regard is well taken. In the case of Moore v. State, Okl.Cr., 507 P.2d 1290 (1973), this Court addressing itself to the same issue in a revocation hearing speaking through Judge Bussey stated as follows:

'The final proposition asserts that the trial court erred in admitting the transcript of Trooper Green's testimony. This proposition is well taken in that the State did not establish due diligence in attempting to obtain the presence of the Witness Green other than the issuance of a subpoena and that Green was on vacation. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.' at 1292

Even though the above transcript was improperly admitted, we note this is only cumulative evidence in that the evidence adduced at the hearing in addition to this evidence was sufficient to prove a violation of the terms of probation.

Defense counsel finally argues in his first proposition that violations within the application to revoke are insufficient to place defendant on notice he would be required to defend against evidence of the offense of Public Intoxication. In the amended application to revoke we note the allegations set forth the grounds for revocation and state as follows:

'Committed crime of ASSAULT WITH A DEADLY WEAPON WITH INTENT TO KILL on November 15, 1972 as alleged...