*1 argu The substance of counsel’s proposition
ment in this is that trial court’s
denying permission pursue him the mat proof
ter under offer of he made at trial restricted cross-examination jury
consequently denying the considera in favor
tion of which would be After the offer of studying defendant.
proof in the evidence of detail observe scope
fered was outside the of the evidence It
adduced on direct examination. did not impeach
tend of the offi It, therefore,
cer. was within the discre permit
tion trial court to or restrict of-the duty questioning. line of It is not judge
of a trial allow the defense es through
tablish its defense cross-examina
tion of State’s witnesses when area of
inquiry on cross-examination does not
challenge credibility of the State’s wit speculation
ness. indulge We will
that the evidence offered would discredit
the officer’s conclusion that defendant was For this we find
intoxicated. reason
proposition to be without merit.
Judgment sentence is affirmed.
BUSSEY, J., concurs.
BRETT, J., concurs results.
Algie Ray al., Appellants, GRIMES et Oklahoma, Appellee. STATE
No. F-73-425. Appeals
Court of Criminal of Oklahoma.
Nov. 1974.
Rehearings Denied Dec. 1974. *2 Hanlon, Tulsa, appel-
Thomas for G. Grimes, lants Marlow and Marlow. Dalton, Tulsa, appel- Jr., Andrew T. for lant Edmondson. Gen.,
Larry Derryberry, Atty. Fred H. Anderson, Gen., Atty. appellee. Asst. OPINION BUSSEY, Judge: Appellants, Grimes, Algie Ray Earnest Edmondson, Marlow, Tommy L. Jordan Marlow, and Patricia Ann Fairchild here- defendants, inafter referred as were charged with the offense of Possession of Substance, a Marijuana, Controlled Distribute, the Intent in the District Court, County, Custer CRF-73- Case No. 12. The four defendants were convicted jury, Grimes, and defendants Ed- mondson, Tommy Marlow Jordan After sentenced Former Conviction of Felony, eighteen years imprison- (18) Ann Fairchild ment. Defendant Patricia years im- sentenced two Marlow was prisonment. judgments these From to this appeal the four defendants sentence Court. developed the fol- at trial
lowing approximately the 30th On facts. Marlow, day January, Patricia Marlow, Tommy Earnest Edmondson where traveled car toward California Tommy defendants Patricia Marlow three married. The planned Marlow to be Tucumcari, night basis for two search spent the New warrants used morning were to discover the illegal marijuana next met Mexico and the proceed- question. July, 1974, day The four On 1st Algie there Grimes. this Court entered an and after the Marlows for an ed to California Order eviden- ceremony tiary pertinent marriage hearing, provides Winter- were denied California, part: haven, traveled the foursome *3 Centro, they There El California. on to “* * * light In of all the facts and 3rd, spent 2nd, February, 4th of the and attendant circumstances in the record be- 1973, Travelodge adjoining in at the Motel us, fore opinion we are of the under the rooms, name of registered both in the Lar- exigencies existing at the time the Okla- motel, ry at this two calls While Jordan. homa officers received communications the 2nd were to Mexico. On made Old from Arizona the authorities af- [the February, the to day of four drove Old fiant was an Oklahoma ac- officer who Mexico, the were married. where Marlows quired his information from the authori- Subsequently, they to Trave- returned the Yuma, Arizona, part ties of in whose in- Centro, California, in and then lodge El in turn anony- formation came from an On to Old Mexico. Febru- traveled back possible informant], mous it was to m., 4, 1973, ary approximately 10:00 a. at proper file affidavit search a for war- at passed En- through
two cars
customs
rant in
meet the
Oklahoma to
constitu-
trade,
A
officer testi-
California.
customs
by
set
tional standards
forth
the United
car,
Chevrolet,
that
first
a
fied
the
adopted
Supreme
by
Court and
States
by
was driven Mr. Edmondson and con-
Court,
necessary,
this
it
nor indeed was
occupants volun-
tained the Marlows. The
under the rules set forth in Chambers v.
traveling
following car was
teered that the
419,
42,
Maroney,
26 L.Ed.2d
399 U.S.
they had that
with them and that
driver’s
1975,
recognizes
that war-
S.Ct.
Ford,
luggage.
second car was a 1966
The
may
when
rantless searches
be conducted
The
of
driven
Grimes.
trunk
defendant
the mind
the
probable cause exists in
of
completely empty,
that car
and Grimes
initiating
police
the
communica-
officer
traveling
with the
indicated
he
tions
search
a vehicle based
for the
of
coop-
people
Through
the Chevrolet.
upon
sufficient to
facts and information
between the
State
erative effort
Oklahoma
probable
establish said
cause.
Yuma,
Investigation,
Arizo-
Bureau of
Force,
anony-
an
na
Task
and
A
Narcotic
similar situation to the case
bar ex-
Whitely [Whiteley]
mous
officers
isted in
v.
Oklahoma
Warden
Penitentiary,
the defendants’ activities.
Wyoming
were informed of
of
State
401 U.S.
306,
day
February,
On the 5th
of
search
The defendant’s Whitely Maroney validity tions of the affidavit offered Chambers styled Peniten- Wyoming State the above [Whiteley] v. numbered cause. The tiary, supra. transcript cost of such shall be Appellants, borne unless are provision of our Constitution relat- indigent, event, upon proper in which ing to search and seizure couched showing indigency, may or- language as of the the identical transcript provided der a light pro- Fourth Amendment. In funds authorized law. preventing tective restrictions warrant- upon less searches of motor vehicles In prosecuting the event that the author- suspicions mere under the rules and produce ities do not elect to re- guidelines enunciated Chambers lating probable to the cause under the Whitely opin- [Whiteley], we are of the guidelines to, they heretofore referred independent validity ion that of the or shall so advise assigned Judge, invalidity war- affidavit search Court, the Presiding Judge within *4 rant, an necessary it will be to conduct pro- a reasonable time. The failure to Court, evidentiary hearing in the District duce such evidence and conduct such County, CRF-73-12, Case No. and Custer time, hearing, within a reasonable meet- Court, the Judge the of District Chief ing the guidelines, federal will be consid- County is an Custer directed to enter Or- ered this Court as confession of er- a Judge, a other than the trial assigning der ror. case, judge in this to conduct such evi- conducted, In hearing the event the is dentiary hearing. The burden of estab- record, together Findings the of lishing probable in the mind the cause of Law, Fact and be Conclusions of shall officer, upon initiating is the State of Court, certified to this as above set Oklahoma, they may, and at their elec- forth, Appellants and the shall be re- tion, provisions 22 proceed under the of place turned to their at of incarceration 723, apply Judge to the O.S. § pending a hearing, the conclusion of said assigned, hearing whom such for “cer- appeal. this determination of payment tification and of such out-of- At who cord. The Appellant enter as relates to the time turned from addition to where and either following said and if not on Appellants, shall set a date ing, fied of said state witnesses. The the conclusion Whitely hearing within a prior represents them on Findings of Fact who party bond, to the may notifying hearing shall if hearing [Whiteley], incarcerated, reasonable is on guidelines his for the may confer issue place date address, sufficient by mailing notice of bond, offer such Judge before with the evidentiary set and Conclusions attorney be transcribed time, appeal. Any of Chambers incarceration, shall be hearing, and if for shall so Court the Court. known, in length assigned, attorney hearing, and the of re- hear- noti- shall re- Judge’s ducted tend attorney tice caped Ann Fairchild but his and filed with Two of the defendants failed one on the 14th of Law. for the disclosure and attendance of formants, Such [*] evidentiary to the defendants Tommy because evidentiary hearing [*] from an attorney evidentiary hearing was conducted Findings of Fact and Conclusions [*] which was denied >1 evidentiary hearing. Prior to day August, she Jordan present, and the Marlow, being hearing a Penitentiary was was together Court, present, Marlow, hospitalized, and request their 1974, at unable and Stringtown, transcribed having Court the Court. was made attorneys. after with the Patricia but appear, to at- con- her no- in- es- the tran to this After examination of certify the same and Law offered, script the author- filed supplement the record Court to
1401
ities,
Accordingly
appli-
commend the Honorable
such an
George
1]
Wilson,
Judge
Howard
District
cation filed
defendant Edmondson
evidentiary hearing,
presided over
(and joined
Grimes)
defendant
Law,
adopt
determi-
his Conclusions of
days
Evidentiary
two
Hear-
before
presented, which
native of the issue herein
ing was denied.
follows,
part:
pertinent
are set
forth as
A review of the evidence reveals that
.
Court of
.
Oklahoma
[T]he
point’
was a
‘focal
.
. directed the
Appeals
Criminal
during
investigation pe-
County to hold
District
of Custer
Court
riod in Arizona which led to the search
hearing
facts and conclu-
to determine
of the vehicles in Oklahoma inasmuch as
guidelines set
using
sions of law
Agent Wheeler had received information
Supreme
forth in the United States
informant,
from
confidential
Cases,
Maroney,
v.
399
Chambers
National,
comparable in-
American
1975,
of an officer’s
giv-
automobile. The information was sub-
information must be
(1)
reliability
sequently
an in-
external cir-
corroborated
en to establish
formant,
cumstances within the officers’ knowl-
information must be
kidnapped
edge when the
customs
the informant’s
given to establish
was reliable.
Court
au-
returned
the abandoned
agent
probable
the test for
stated that
further
were found.
tomobile and contraband
legality of a
corroboration,
cause used to determine
From this
all of which
used to deter-
as is
prior
arrest,
is the same
search
the officers
occurred
legality of an arrest.
reasonably
mine
that Serna
could
conclude
’.
.
.
reliable
while
Supreme Court
States
“The United
supra,
Spinelli,
su
Draper,
discussing
jurisdictions
reached the
“Other
have
meth
alternative
pra,
provided for
also
same conclusion.
In United States v.
of an
insuring
(1970),
the trustworthiness
[D.C.],
F.Supp.
Altizer
376
ods
said,
information.
informant’s
Referring
said:
Draper, the Court
informer,
proved
.
. The
.
in that case
police work
‘Independent
credible when the officer visited
than one
fitting
more
in
much
tavern and saw a man
corroborated
provided
description
.
that had been
former’s
.’
small detail
There,
police, upon
the informant.
Cir.],
also United
v. Drew
“See
States
[5
Denver train on
inbound
meeting the
(1970),
v.
the State of informa that since defendant was found Grimes by gained tion Mr. Wheeler from marijuana driving the car was wherein James Evans, found, agent, pertaining the customs that he would encounter a conflict the fact that the individuals and vehicles in representing both and the other Grimes described sep had entered the United»States three defendants who were in a found Andrade, California, at that arate car four in which no contraband was Americans motion, stated that travel were to withdraw found. The as ing together, Grimes, luggage and that all their counsel for was received vehicle, was in the day one while the trunk situa court one before trial. The fact of the empty, other vehicle sufficiently was and tion clear should have been (6) the additional in information Mr. from the time defense counsel became received from his informant volved in the case to have determined at that time whether or not a conflict of in- Finally, allege defendants error in develop. terest would The motion to with- refusing to use the instructions properly was, therefore, draw timely not made. timely requested by defense counsel. Upon instructions, review of the we hold After the failed, motion to withdraw a given the instructions covered all motion to sever was entered for the same applicable law and that there was no error Again, reason. necessity or advisabil- in refusing the additional re instructions ity of severing these cases should have quested by defense counsel. apparent been from circumstances sur- Further, rounding initial arrest. a Because of the Conclusions of Law severance is within the court’s trial discre- by Judge George reached Howard Wilson tion and showing prejudice, without a evidentiary held, after the hearing was the Court of Criminal Appeals will not re- having proposi- after dealt with all other verse the trial court’s decision as tions, above, as finding set forth noth- State, Okl.Cr., matter. See Curcie v. ing require which would modification or P.2d (1972). Only defendant Patricia reversal, judgments ap- and sentences case, Marlow testified in this and her testi- pealed hereby from are affirmed. mony way any prejudiced no of the oth- addition, er In there defendants. BLISS, J., concurs, P. prejudice might develop offer of what during joint Therefore, a we hold trial. BRETT, J., specially trial judge concurs. did not abuse his dis-
cretion in denying the motion for sever-
ance. APPENDICES : Findings 1. From the Fact proposition Defendants’ third al Judge Wilson, George quote Howard leges overruling error defendants’ De following, as to the murrer and Informants: Motion for Directed Verdict. urge Defendants that the evidence did not Lund, “The spe- First Witness: John a support specifically, the conviction. More agent for Drug cial the U.S. Enforce- argues counsel illegal that since no mari ment Administration who testified that juana car, pos was found in the second no 3, 1973,by telephone on February he was established, session failing could be thereby contacted his home in Arizona prove one of the essential elements of confidential Mexican Na- However, possession may crime. tional, (who who lives Arizona and proved, by circumstantial evidence as held only by was identified not his voice but State, Okl.Cr., this Court in Brown v. name) also told him code P.2d proof when the excludes ev three white male Ameri- there were ery hypothesis. other reasonable In our cans whom he from described as present case, linking all defend Oklahoma, slender and termed and as ants illegal marijuana with the ‘cowboys,’ (and ‘Gringos’) as presented by showing relationship whitq female, the four he described during days whom defendants six Oklahoma, departure from their blonde-headed; their of whom all four *8 trip California, Mexico, Mexico, to Luis, and return to resi- at the then in San interpretation Moleña, Oklahoma. Mary of these Lucie dence of Ann facts is within . That province the exclusive of . . known narcotics trafficker. cars, as jury and we hold that there was suffi described the two the informant bearing cient jury evidence for the have Chevrolet to found a maroon 1966 or 1967 guilty and charged. defendants Plate NW-3955 License Oklahoma bearing greenish as a color 1966 Ford ‘The Informant said that Lucie ’ License Plate SY-8313. there Oklahoma when the deal was . . made . Agent Agent testified that the confiden- Land Wheeler’s confidential informant prior February passed tial to also along the information he re- approxi- given had him information directly on ceived from Lucie Moleña cases, mately thirty involving all subjects Patty Tommy Ann and narcotics, of such planned married, traffic of and some get Marlow to arid aft- detail, being and they get they cases described er did married would leave and persons get of these were arrested and marijuana all delivered to them. convicted; finally and the inform- later That of guys’ names the ‘two other information; given Agent ant had bad never not mentioned. ad- Wheeler tips prov- had although and the informant’s never mitted that (who informant rap Further the inform- long en to be unreliable. had a sheet record of convic- charged supplied ant had never been or convicted and the in- tions) him with any previously offense.” formation used of was never him, he considered his reli- information ‡ ‡ ‡ ‡ H< custody able since the informant was in State, “The second witness called and thus there be no motive for would Wheeler, Larry agent narcotic story. Agent fabricating his Wheeler Force, the Yuma County Narcotics Task given testified that the him 3, 1973, February re- testified that on he matched the confidential informant ceived information from a confidential Agent given him the information ” informant who had been arrested . . . Land John day custody a few hours had been Findings of Fact 2: From the charge marijuana possession on a of of Wilson, Judge George quote of Howard (A informant United for sale. The family’s following, as to the Moleña told him that Citizen) States National drug activities: Tommy Muskogee, from Marlow Jordan female, Oklahoma, along with a white mem- “Agent the Court of the Land told big, who he described as a blonde-headed family: Father bers of the Moleña Ann, girl Patty other un- named two and Rosa are Ramon Moleña mother pounds purchased identified men had of the they ‘and are the heads Moleña Mary Moleña marijuana daughter family’; Mary one Moleña p. 79). Agent family. (Tc. Moleña Mary (who is a daughter Lucidle and a informant also de- stated the Wheeler marijuana smuggling fugitive for federal cars; a red 1967 being scribed one two in Federal convicted and who has been other a faded blue Chevrolet and the marijua- smuggle conspiracy Ford, plates bearing Oklahoma both Manuala U.S.); a sister-in-law na in the numbers). tag (but he did not know then a arrested); (who had been Moleña his confidential him the source about the deal that the Moleña. “Mr. Wheeler Lucie ‘Lucie Moleña Moleña, testified informant the sister of other (Tc. information, had told revealed people were p. 79) that Mary him it ers.’ viously). Ramon Lucidle [*] San Moleña, [*] (and he had been Luis ‘The area as [*] family is well a brother of [*] narcotic arrested [*] Mary known traffick- [*] pre- tes- Lucie had further doing’ told me that . and ‘He “. knowledge girl personal having and the Tommy told him that tified (re- bought family guys that had of the Moleña the two other the members Mary.’ Street) fact and the marijuana from pounds just side off 17th *9 large marijuana, in they other,” are dealers concert each with the that the crime drugs amphetamines, and other in of San Unlawful Possession of Controlled Dangerous Luis.” Substance Dis- With Intent to substance, persons In tribute. the in the Findings From the of Fact 3: charged second car were as “aiding and Wilson, quote George Howard Judge of abetting” in the commission of the offense. Wells following, (cid:127)the as to the Gordon charge The rationale of the lies in the fact area: marijuana that but nothing the con- car, lug- in the tained first whereas the Land Mr. described “In his in smuggling used narcotics gage, Algie methods belonging and other items ' border, particular, the in across the Grimes, Ray transported were in the ‘mules,’ employs mules mothod O.S.1971, 172, pro- Title second car. § carry on who being Mexican Nationals following: vides the marijuana con- of their an amount backs persons in “All concerned the com- the Colorado sack across in a traband crime, felony it mission of whether be meeting points into designated River at misdemeanor, they and di- generally or whether it is where the States United placed rectly constituting the trunk of automobile commit into the act
offense,
in
or
abet
its com-
aid and
mission,
prin-
though
present,
not
are
“
attempt
.
. After an unsuccessful
[Emphasis
cipals.”
added].
locating
at
by Agents Land and Wheeler
again
vehicles
two
Hence,
question
presented,
is
with
informant
his confidential
talked with
persons
reference to
three
in the sec-
they came out
that
if
him
told
persons aiding
ond
car: “Were those
California,
Andrade,
they
of
area
Algie Ray
posses-
in his
abetting
Grimes
is classified as
go to what
would
marijuana
sion
in
of
found
his automo-
pick up the mari-
area and
Gordon Wells
finally
they
that
bile?” I
concluded
were.
juana.
p. 87).”
(Tc.
might
analogous
An
be: Assum-
situation
ing
“A” and “B”
own automo-
both
specially):
BRETT,
(concurs
Judge
hay
“A”
to move
bale of
biles.
decides
another,
point to
but he
from one
cannot
of the trial
After a careful examination
get
be-
it into the trunk
his automobile
record,
Findings
hearing,
evidentiary
up
spare
too much
cause the
tire takes
Law, I concur.
Fact and Conclusions
spare
space.
in
put
“B” offers
tire
However,
should
distin-
I believe it
get
bale
his
in
“A” can
car
order that
in
guished
decision
this
Court’s
Clearly,
hay
car.
State, Okl.Cr.,
into
trunk