*1 an oth- enough is not to invalidate dominion, control, knowledge of warrant State, factors erwise valid search. Micklick v. question. in Such the substance Okl.Cr., jury The case. present in the existed Bell about testimony Officer heard proposition urged by de- The final the resi- opening the door to the defendant fendant is that trial court erred the de- key, and how his own dence with overruling a directed ver- his motion for case found opened gray attache An examination of the record dict. jury also The the search. the course of presented sufficient flects that the State discovery of heard about prove prima facie case. Deer evidence to a drivers papers, photographs, personal defend- State, supra. Accordingly, the v. ad- In belonging to the defendant. license also sixth ant’s error that when dition, Bell testified Officer found to be without merit. the defend- nearly finished and search was above, forth it is For the reasons set warnings, Miranda his given had been ant opinion judgment of this Court any were if the defendant there he asked be, and appealed from should and sentence The officer residence. drugs
more hereby, the same affirmed. follows: as direct examination testified on concur, had, Offi- “Q. BRETT, BLISS, conversation J., J., What P. cer? about
“A. conversation We—the it was
key brief and where to the case about had conversation
located. We drugs in the any additional
there was
residence.
“Q. say What did he ? drugs “A. He said the resi- ASHER, Appellant, Jimmy particular dence were all in this one bed- v. room and the remainder of the house Oklahoma, Appellee. The STATE of was owned brother-in-law was clean.” [Tr. 92] M-75-447. In Deer Okl.Cr., 530 P.2d Appeals of Oklahoma. Court Criminal
at 569 we stated: March 1976. We have consistently held Rehearing Denied March 1976. that where is competent there in the record from jury which the could
reasonably conclude that guilty charged, as this Court will
not interfere with the verdict as it is the province
exclusive weigh
the evidence and determine the facts.
Turner v. proposition urged by second
the defendant is that the officers failed to
properly execute, serve and return the previously warrant. We have ad question
dressed the of execution and serv
ice of the only say warrant need
failure to make a return of a search *2 Mitchell, Sellers, and Allen B. B. Jack for
Sapulpa, appellant. Gen., Atty. Larry Robert D. Derryberry, Lisle, McDonald, Gen., Atty. Kenneth Asst. Intern, appellee. Legal OPINION BUSSEY, Judge: Asher, hereinafter Appellant, Jimmy defendant, charged, tried to as ferred Court, Creek District convicted in the CRM-73-616, the of- County, Case No. of Marihua- fense of Unlawful Possession O.S.1971, 2-402. na, in violation of § punishment cross-examination, (6) fixed his six Detective Clark imprisonment County jail, testified that the months’ search warrant was not posted apart- on judgment and from said and sentence the door of defendant’s perfected timely appeal to this ment when has commenced. He stated that it clipboard remained on his Court. un- *3 apartment, til defendant entered the trial, proceedings In the before defend- which time it was served on the defendant. suppress the was ant’s motion to Sergeant Collins, a denied. Detective with Joe Sapulpa Department, Police identified approxi- Wilbur testified that at Ginn person the defendant as the who entered 1973, p. 11, mately 6:40 on November m. apartment while the search was in visiting Cherry while relatives at the Hill progress. Apartments, Apartment number Sapulpa, coming Sapulpa he heard loud music Charles Williams of the Police nearby apartment. Department a stated he He identified State’s Exhibit No. type pipe” then looked out his door and observed the as a “smoker he found which standing open doorway defendant in the of closet in the back bedroom of de- Apartment According apartment. number fendant’s 207. witness, he also smelled the odor burn- On cross-examination Officer Williams ing at this marihuana time. witness cigarette loosely testified that a would fit closed his door when defendant turned to in the holder of the smoker and that he did leave. Several seconds later Mr. Ginn re- know the device worked. opened his door and noticed that door to Moore, Johnny police Lieutenant a offi- apartment the other was closed and that Department, with Sapulpa cer Police greatly diminish- the odor of marihuana testified that he assisted in the search of fa- ed. then testified that was Mr. Ginn he apartment defendant’s at about conducted burning miliar marihuana with odor p. 10:30 m. on November 1973. He employed by and that the Owasso he was being stated that Miranda after read his Department Police 1973. on November rights, defendant said that the marihuana He further stated that he notified Detec- found in his strong kitchen was Sapulpa Department tive Clark grown he had it The witness himself. signed the affidavit observations and identified Exhibit No. 2 as a water State’s night. for a search warrant late that pipe used and stated that such devices are Sapulpa Clark, Detective Tom a with consumption in of marihuana. Department, on Police that Novem- testified On cross-examination Lieutenant Moore Collins, 11, 1973, he, Sergeant ber Joe stated that the had marihuana been found Johnny Charles Williams Lieutenant in an unlocked box in a kitchen cabinet apartment defendant’s Moore arrived at anyone apartment having access to the with a search testified that warrant. He opened. could have no one answered when he knocked on the Warden, Bill registered a a sanitarian with passkey
door
therefore
was used
Sapulpa
apartment.
Department,
Health
stated
testified
enter the
The witness
that State’s Exhibit
the search
No. 3 was tested and
the defendant arrived while
sativa, commonly
found to be cannabis
progress
was in
and was then
served
copy
known as
of the search
He further
marihuana. He stated that he
warrant.
performed
reagent
had
greenish
Duquenois
testified that
brown
test
found
he
leafy
microscopic
on the
cigar
substance in a
in a
substance and made a
box
kitchen
examination of
cabinet and that
transmitted the evi-
it. On cross-examination
he
Sapulpa Mr. Warden
that he
dence to Mr. Bill
testified
knew no
Warden
Department
Health
substance other
than marihuana
analysis.
which
Osteopathic College
Biochemistry at the
reaction to
positive
produce a
per-
Tulsa,
that he had
who
testi-
He further
reagent test.
Duquenois
Duquenois reagent test on sev-
formed
the odor
substance
fied
spices
supplied
and coffees
different
eral
marihuana.
He stated that
counsel.
him defense
examination, Detective
re-direct
some of the
positive reaction to
obtained
3 as
Exhibit
identified State’s
Clark
request
A defense
types of coffee.
leafy
greenish-brown
substance
perform
permitted to
these
Mooney be
De-
apartment.
found in defendant’s
tests in court was denied.
into evi-
objected
the admission
Thereaf-
Exhibit No. 3.
dence of State’s
raises three as
The defendant
ter, the State rested.
assign
first
In the
signments of error.
that the trial
ment of error he maintains
witness for the defense was
The first
*4
properly instruct
failing
in
to
court erred
Asher,
Jimmy
defendant. He testified
the
neces
jury
requirements
legal
the
as to the
years
married for four
that he had been
for unlawful
sary to sustain a conviction
child. He stated
and had one 13-month-old
by
requested
possession of marihuana as
Collins
that he worked at
the Bartlett
The determination
the defendant.
Company Sapulpa until he entered
in
Glass
given to the
shall be
which instructions
Army
the
in
further testified
1969. He
the discretion
is a matter within
and
that he served in
Nam
Viet
instruc
court, provided
trial
that the
the
Heart,
Purple
the
Bronze Star
awarded
correctly
given
state
fairly
tions
and
After
Army
medal.
and an
commendation
State, Okl.Cr.,
applicable law. Barber v.
discharge
he returned
from the service
(1963); Bradshaw v.
fusal to has This Court held
experiment. exclusion
admission or resulted injury or could have judgment. reversal ground find, State, supra. See, We v. Garcia Appellant, SHELTON, John Fredrick therefore, error is that this without merit. Appellee. Oklahoma, The STATE of considering the record and briefs After No. F-75-688. finding this Court and no error before *6 Appeals of Court Criminal Oklahoma. reversal, justify modification or 8, 1976. March appealed sentence judgment and
accordingly, AFFIRMED.
BRETT, Presiding Judge (dissents). respectfully dissent to this decision be-
I I consider the affidavit for issuance
cause the search warrant be defective. printed alleges form affidavit consid- capable
erably more than the affiant was
of knowing, according to his' doubt, does, possess capa-
trial. He no smoke,
bility detecting marihuana but
beyond knowledge all he other-
wise asserts in the constitutes affidavit knowledge
bald He had conclusions.
whatsoever that “.
wilfully, feloniously unlawfully keeps marihuana, drugs,
the said bar- narcotic drugs
biturate and stimulate . .” nor . any knowledge have that “.