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Blunt v. StateBlunt v. State

Court of Criminal Appeals of Oklahoma
Sep 21, 1987
No. F-85-614
Reporters:
, ,
Before:
Bussey

Lead Opinion

*147OPINION

BUSSEY, Judge:

Thе appellant, Sidney Clark Blunt, was tried and convicted in the District Court of Tulsa County of Delivery of a Controllеd Drug, Second Offense, After Two Prior Felony Convictions, Case No. CRF-84-3256, and Possession of Firearm After Two Prior Felоny Convictions, Case No. CRF-84-3262, and was sentenced to terms of imprisonment of thirty-five (35) years and seven (7) years, respectively, the terms to run consecutively.

In brief, the facts of the case are these. On July 16, 1984, an experienced informant of the Tulsa Police Department, George Dwinnels, obtained one-half gram of Methamphetamine and a .25 caliber pistol from the appellant in return for a cash paymеnt of $80.00. Shortly thereafter, Dwinells gave these items to a Tulsa Police officer in a grocery store рarking lot. An arrest warrant for appellant was issued on August 30, 1984.

Appellant has three assignments of error, all of which concern the instructions given to the jury. Specifically, appellant cites error in the instruсtion on enhancement of sentence given under 21 O.S.1981, § 51(B) instead of under 63 O.S.1981, § 2-401(C), in the trial court’s failure to more specifically define the elements of the crimes charged, and in the ‍‌‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌​​‌​‌​​‌​​‌‌​‌​​‌​​‌​​‌‌​‍trial court’s failure to give a cautionary instruсtion as to the credibility of the State’s informant.

Absent a showing of fundamental error, a defendant waives his right to raise issues concerning the instructions on appeal if he fails to object to the complained of instructions, or, alternatively, if he fails to request certain instructions which are not given. Nelson v. State, 709 P.2d 700 (Okl.Cr.1985); and Luckey v. State, 529 P.2d 994 (Okl.Cr.1974). Since aрpellant did fail to object to the relevant instructions which were given, and did not offer the instructions which hе complains were erroneously not given, he has waived review on all grounds other than that of fundamеntal error.

Appellant’s first assignment of error concerns the trial court’s use of the instruction on enhancement of sentence under 21 O.S.1981, § 51(B), “The Habitual Offenders Act,” instead of under 63 O.S. 1981, § 2-401(C), “The Uniform Controlled Substance Act.” This Court has repeatedly held that it is fundámental error to instruct on enhancement ‍‌‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌​​‌​‌​​‌​​‌‌​‌​​‌​​‌​​‌‌​‍of sentence under the Habitual Offenders Act when the provisions of the Uniform Controlled Substance Act clearly apply. Johnson v. State, 559 P.2d 1250 (Okl.Cr.1977); and Buff v. State, 538 P.2d 1117 (Okl.Cr.1975). However, the provisions of this act clеarly do not apply in this case.

Appellant’s two prior felony convictions which were used by the State for enhancement of sentence were for Grand Larceny and for Possession of a Contrоlled Drug. The provisions of 63 O.S.1981, § 2-401(C) are intended to apply only where all of the felonies are drug offences under the Uniform Controlled Substance Act. Where any of the felonies involved are not under this act, the provisions of the Habitual Offenders Act are intended to apply. Consequently, there is no error in the trial court’s instructions as to enhancement оf sentence.

Appellant‘s second assignment of error is that the instructions were flawed in that they failed to define “wilfully,” a material ‍‌‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌​​‌​‌​​‌​​‌‌​‌​​‌​​‌​​‌‌​‍element of both crimes charged, and “knowingly,” “possess,” and “pistol,” materiаl elements of the gun possession charge.

A trial judge’s failure to precisely define certain terms in his instructions is not error where the terms are in common usage and the appellant did not request a more precise definition of the terms. See Feil v. State, 81 Okl.Cr. 133, 161 P.2d 770 (1945); 23A C.J.S. Criminal Law § 1191 (1961); and Annot. 169 A.L.R. 315, 348 (1947). Here the terms in dispute are in common usage and there is nо fundamental error in the trial judge’s instructions as to the definition of the terms.

Appellant’s third assignment of error is that the trial judge committed fundamental error in that he did not give a *148cautionary instruction about the ‍‌‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌​​‌​‌​​‌​​‌‌​‌​​‌​​‌​​‌‌​‍credibility of an informant.

It is clear from the record, however, that the jury was made fully aware of any possible mоtives the informant might have in testifying against appellant. Furthermore, the trial court properly instructed thе jury that it had the responsibility of weighing the credibility of all of the witnesses in reaching its verdict. Consequently, there is no fundamental error involved in the trial judge’s failure to read the cautionary instruction. See Gee v. State, 538 P.2d 1102 (Okl.Cr.1975), and Frazier v. State, 706 P.2d 165 (Okl.Cr.1985).

Finding no error wаrranting reversal or modification, judgment and sentence is AFFIRMED.

BRETT, P.J., concurs. PARKS, J., specially concurring.





Concurrence Opinion

PARKS, Judge,

Specially Concurring:

Although I agree with the result in this case, I write separately on the question of the proper application of the punishment enhancement provisions of the Uniform Controlled Substance Act, 63 O.S.1981, § 2-401, and the Habitual Offender Act, 21 O.S.1981, § 51. The majority states that “The provisions of 63 O.S.1981, § 2-401(C) are intended to apply only where all of the felonies are drug offenses under ‍‌‌‌​​​‌‌​‌​‌​​‌‌‌​​​‌​‌​​‌​‌​​‌​​‌‌​‌​​‌​​‌​​‌‌​‍the Uniform Controllеd Substance Act.” Supra, at 147 (emphasis in original). I believe that language could be somewhat misleading because it implies that the State can never seek to enhance under the drug statute if the defendant has any non-drug convictions. As this Court indicated in Novey v. State, 709 P.2d 696 (Okl.Cr.1985) (Bussey, J., concurring in result; Brett, J., specially concurring), when a drug defendant hаs been previously convicted of both drug and non-drug crimes, the State may elect to seek enhancement under either statute. Therefore, if the State wishes to seek enhancement under the Controlled Substance Act, it may elect to do so by citing only the prior drug offenses for enhancement purpоses. Of course, the State may also elect to proceed under the Habitual Offender Act by citing bоth the drug and non-drug prior offenses. In this case, since the appellant had been previously convicted of both drug and non-drug crimes, the State could properly elect to proceed under the Habitual Offender Act.

Case Details

Case Name: Blunt v. State
Court Name: Court of Criminal Appeals of Oklahoma
Date Published: Sep 21, 1987
Citations: 743 P.2d 145; 1987 OK CR 201; 1987 Okla. Crim. App. LEXIS 484; No. F-85-614
Docket Number: No. F-85-614
Court Abbreviation: Okla. Crim. App.
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