*1 evidentiary No void and unmodifiable. the cir- afforded to consider surrounding challenged the .
cumstances interests
agreements or their effect on the employee pub- employer, the deny A modification lic. decision to before
probing into the facts and circumstances all noncompetitive agree-
that bear error of law.15
ments’ restraints constitutes summary judgment reverse would hence and remand the cause for a
for Pickard inquiry.16 equitable
full-scale employer’s faith the
showing of the bad
agreements not invalidated but should modified; injunctive ought to
rather relief necessary to the extent
be fashioned
protect competing interests in suit. DUVALL, Appellant,
v. Oklahoma, Appellee.
The STATE of
No. F-88-578.
Criminal
Oklahoma.
10, 1989.
O’Connor,
law,
Mortgage
positive
Aspelund
15. In
Co. v.
as one
determination
Waterfield
673,
[1977],
question may
Ind.App.
concludes that the
rately
be more accu
361 N.E.2d
suit
question
characterized as a mixed
of law
employee's noncompetitive
to enforce an
cove
6-5,
so,
6.01, pg.
and fact.
n. 12. Even
it
nant, the court characterizes the ultimate deter
clearly appears that whether the issue is viewed
law, yet
summary
mination as one of
it holds
as one
law or fact the reasonableness
judgment
because the suit's resolu
enforceability
a restraint is measured
invariably
adequate
tion must
rest on
As
facts.
solely by
and circumstances
not
facts
1, 6.01,
6-4,
pelund, supra
pg.
note
n.
agreement.
the text
the written
repeating
a number of cases
the rubric that
reasonableness must turn on the circumstances
Industries,
Malady, supra
16. See Solari
Inc. v.
which,
observes,
and facts of each case
he
61;
Co.,
Distributing
note
264 A.2d at
Eastern
appear
dispositive
would
to make the
issue of
Flynn,
Inc.
Kan.
Vlerah,
[1977];
reasonableness one of fact. But because a num
supra note
Raimonde v. Van
expressly
ber of courts have
classified the dis-
Over a of several Garrison in Appellant contacted an effort to obtain drugs. 16, 1987, September Appellant On possession told Garrison he had a that of quantity of cocaine. Garrison contacted agents at the Oklahoma Bureau of Narcot- (OBNDD) Dangerous Drugs ics and and told them purchase he could make a from Appellant. September On Garrison ranged Appellant to meet at lot the car Appellant where worked. Garrison money wired with mike body given a and drug with buy drugs. which to The agents nearby waited in car a and recorded the transaction through as transmitted body Appellant mike. sold one Garrison gram of cocaine. arrange
Garrison to was able two other meetings Appellant. September with On 22, 1986, Appellant sold Garrison three and Zelbst, Lawton, P. appellant. John for grams addition, Ap- one-half In of cocaine. pellant offered sell to Garrison four one Atty. Gen., Henry, Robert H. Susan bags marijuana ounce for That $75.00. Dickerson, Gen., Atty. Stewart Asst. Lee S. Finally, offer was September refused. on Mclntire, Legal Intern, City, Oklahoma for 30, 1986, Appellant sold Garrison another appellee. gram meetings All cocaine. of these Appellant between Garrison and mon- OPINION itored OBNDD and were record- ed on tape. audio After the to LANE, third sale Judge: Vice Presiding Garrison, Appellant was arrested and Duvall, Appellant, was con- charges against current him filed. victed on two of three counts of Unlawful error, assignment Delivery of As his first Dangerous a Controlled Sub- (63 Appellant O.S.1981, 2-401(A)) that im stance claims trial court the Dis- properly testimony allowed County, trict of Jackson Case No. against “other crimes” to CRF-86-176. be admitted him. The recommended a Specifically, (5) he claims that the years imprisonment sentence of five evidence $6,000.00 his September on a fine on dollars count two and (5) years improper, as was the imprisonment $2,000.00 five and a that he offered sell on count to Garrison fine three. The court sentenced as September well as Appellant in cocaine jury’s accord with the verdict. transaction. perfected appeal his from judgment. that We arguments have reviewed the presented as as the actual well originally charged with involved. that We find there was no viola- Delivery three counts of Unlawful tion of Burks v. Dangerous Controlled Substance after sell- Cr.1979)in testimony. the admission of this ing cocaine to police informant on three Burks, In we held: informant, different occasions. The Thom- working police general Gale put rule is that when one is sentencing pend- trial, return for lenient one tois be convicted—if at ing felony case. had previously Garrison evidence which guilty shows one all— of the at the lot charged; worked same car offense that knew him guilty well. one is of other offenses not con- seeing a second the witness one is on trial
nected with that reaching time, during deliberation. must excluded. result, distinguished tape in we at 772. Martin, question from an exhibit. principles quoted In accord with the testimony of of the actual video above, of situations we identified a number accused the child whom the defendant was prohibition against evidence where the however, molesting, in the tending prove “other crimes” is not *3 tape recording of the sale the audio plicable: Appellant to It by of cocaine Garrison. may of other offenses be ad- Evidence testimony by a was not witness. where it tends to establish mo- missible tive, intent, of mistake or acci- absence jury to take The decision to allow a dent, identity scheme or or a common jury them to the room is exhibits with plan which embraces the commission the of the trial court. within discretion two or more crimes so related each State, Daugherty v. 640 P.2d other that of one tends to establish Cr.1982). Appellant failed to demon other. the this strate that the trial court has abused Accordingly, tapes discretion. were go jury during properly allowed to with the Appel- their deliberations as an exhibit. See Septem- lant O.S.1981, 893. only 16 is relevant to show not motive ber intent, very closely connect- but is also allegation Appellant’s final of error ed with the entire transaction. Garrison prosecu concerns made statements drugs by Appellant, offered the con- during arguments. re tor final We have tacted OBNDD and then returned viewed the comments of which day. to consummate the deal the next This complains do not find error. The ma properly admitted. evidence was identified, especially jority of the comments Likewise, concerning Appel- the evidence concerning the character and back those during for sale lant’s offer ground in direct of Thomas involving one of the transactions cocaine response to comments made counsel for gesta. of the res equally part The two Appellant. None of the comments identi transactions were connected in both time range permissible fied outside the There is no violation of Burks State, place. argument. Thompson v. 724 P.2d here. (Okl.Cr.1986). There is no error presented here. jury retired for delibera When Finding requires no error either tion, sent to the all the trial exhibits were reversal, Appellant’s Judg- them, modification or including jury room hereby ment and Sentence is AFFIRMED. recordings of the conversations between Garrison.1 State, LUMPKIN, JJ., (Okl.Cr.1987) concur. Martin v. BRETT and support for his claim that it was error P.J., PARKS, dissents. jury to take the for the court to allow the PARKS, dissenting: Presiding Judge, tapes jury into the room. Martin, assignment, appellant propriety In his second we considered the taped gues court committed reversible allowing jurors to the trial view testimony during allowing jury to rehear the their delib- error witness tapes between held that it was to audio of conversations erations. We pellant informant over defense jury to reconsider the and an allow the manner, agree. I essentially objection. counsel’s of a witness such a any provi- ly, we do not consider issue 1. The trial court refused to authorize the transcriptions tapes to the transcriptions. sion of such According- consideration deliberations. The trial court failed to the re- follow
quirements O.S.1981, of 22 as inter- e.g., caselaw. See Givens v.
preted by
State, (Okla.Crim.App. 705 P.2d State, Kovash
1985);
(Okla.Crim.App.1974). compliance agree appellant
with Section emphasis placed
that undue
taped conversations. See Martin v.
747 P.2d 319-20 (Okla.Crim.App.1987). significant
I fail to see the distinction the
majority finds between Martin and this
case. Accordingly, I dissent to the affirm- appellant’s
ance of conviction. *4 WALKER, Petitioner,
John Louis Oklahoma, Respondent. STATE
No. C-86-142.
Court of Criminal of Oklahoma. 1989.