Bоbby Dean MORRIS, Appellant, v. The STATE of Oklahoma, Appellee.
No. A-17360.
Court of Criminal Appeals of Oklahoma.
March 13, 1973.
Rehearing Denied April 2, 1973.
We need only observe that the defendаnt did not timely object to the introduction of the hearsay testimony.
In conclusion, we observe that because of the indigency of the defendant justice would best be served by modifying the judgment and sеntence to a term of five (5) years imprisonment, and as so modified, the judgment and sentence is affirmed.
Modified and affirmed.
BLISS, P. J., and BRETT, J., concur.
Ainslie Perrault, Jr., Ward, Brown & Perrault, Tulsa, for appellant.
Larry Derryberry, Atty. Gen., and Nathan J. Gigger, Asst. Atty. Gen., for appellee.
OPINION
BUSSEY, Judge:
This is an appeal from the District Court of Tulsa County, Case No. CRF-70-2005, where Bobby Dean Morris was charged with Possession of Marihuana in violation of
Upon entering the dwelling, Officers McDonald аnd Cartner smelled the odor of marihuana and while the defendant was making the telephone call, they remained in the living room, observed an unusual motorcycle for a short period оf time. They then observed two pipes, in open sight, on a table and approached the table where they detected a strong odor of marihuana. The defendant emerged frоm the room in which he had placed the telephone call and was advised that he was under arrest for the additional charge of Possession of Marihuana. At this point the defendant stаted, “You can‘t use that, I‘ve already smoked it. I don‘t keep anything in the house.” Detective Cartner asked the defendant where he worked, to which he replied that he did not work, but owned some property, and made the further statement: “I‘m just blowing pot waiting for the revolution.”
By stipulation of the parties it was agreed that the pipes, marked State‘s Exhibits 1 and 2, were taken to the property room of the Tulsa Police Department and then transferred in an unbroken chain of custody to the City-County Health Department, located at 4616 East 15th Street, Tulsa, Oklahoma, on September 9, 1970. By stipulation, the report of the chemist analyzing the contents of the pipes revealed that both contained some burned and unburned marihuana.
The defendant offered no testimony in his behalf and demurred to the State‘s evidence. At several points during the trial, the defendant was permitted to examine both officers in an attempt to show inconsistencies between the testimony given at preliminary hearing from that given at the trial. Some of this testimony was admitted, but later stricken. The gist of this testimony was that Officer McDonald thought the serving of the warrant would be a goоd excuse to search the premises. No pretrial Motion was filed to suppress the evidence, nor was any Motion to suppress the evidence ever filed until the defendant rested, demurred, and moved to suppress the evidence.
In light of the foregoing evidence, it is abundantly clear that the evidence amply supports the verdict of the trial court, if the seizure of the pipes containing marihuana was legal. The defendant contends that although a valid search warrant had been issued and the officers had a right to arrest the defendant in acсordance with the directive of said warrant, their entry on the premises under the warrant was a subterfuge to search for and recover marihuana. He further asserts that the court erred in nоt allowing defendant‘s attorney to question the officers as to whether the arrest warrant was merely a subterfuge to allow the officers to search the residence of the defendant.
From an examination of the testimony heretofore set forth, it is abundantly clear
Defendant relies on Handley v. State, Okl.Cr., 430 P.2d 830 (1967) in support of his argument, and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Handley v. State, supra, is clearly inapplicable to the facts in the instant case, for thеre was no search—the officers smelled marihuana with a strong aroma emanating from two pipes which were in plain view. Nor does the evidence become tainted or inadmissiblе under the rule enunciated in Coolidge v. New Hampshire, supra, wherein the Supreme Court of the United States held that for the “plain view” doctrine to apply, the discovery of evidence in plain view must be inadvertent and thаt the discovery must not be anticipated.
It is our opinion that the evidence which was discovered in plain view was discovered inadvertently and clearly not with prior knowledge of its existence on the premises.
For all of the foregoing reasons, we are of the opinion that the judgment and sentence appealed from should be, and the same is hereby, affirmed.
BLISS, P. J., concurs.
BRETT, J., dissents.
BRETT, Judge (dissenting):
I respectfully dissent to this decision, because the evidence offered was circumstantial evidence establishing the USE of marihuana.
“The use of * * * marihuana, except when used pursuant to the direction of a licensed physician or dentist for medicinal purposes, is hereby declared to be unlawful and to constitute a misdemeanor, and upon conviction thereof punishable by confinement in the county jail for a term of not more than six (6) months.”
When the officers entered the apartment, they smelled a “weak odor of marihuana“; they subsequently observed two pipes sitting on a table; they picked up the pipes, smelled of them, and confirmed that marihuana had been smoked in them. Except for defendant‘s admission to the officers that hе had smoked marihuana, the officers would have only had circumstantial evidence that marihuana had been smoked by someone. On cross-examination Officer Cartner testified, “When I obsеrved it, the pipe it had—the material was packed down in it and had a coal or a burnt coal on top of it where it had been smoked.” He was then asked, “Did you see any of that unburnt marijuana in the pipe on that night?” The officer answered, “No, sir, it had a—As a pipe, I‘m sure you know what a pipe looks like after it‘s been smoked.” The next question, “* * * Did you see any of that unburnt marijuana in the pipe?” The answer followed, “No, but it could be under the burnt portion.”
The officer also testified that he carefully handled the pipes, to prevent spilling the residue from them. Later а tape was placed over the top of the pipes, to assure that the contents would remain in them. The laboratory analysis proved the contents to have been marihuаna; but nowhere in the record is there any statement concerning how much marihuana was found. From Officer Cartner‘s testimony, it is learned that “it could be under the burnt portion.”
To my way of thinking, this conviction is a Gross Miscarriage of Justice. When the prosecution must stretch the law of evidence beyond reasonable limits, in order to sustain a conviction, it becomes understandable why the confidence in our system of jurisprudence is shaken. The quantity of substance found in the two pipes in this case was insufficient to sustain a conviction for possession of marihuana.
In Watson v. State, 495 P.2d 365 (1972), the Supreme Court of Nevada was confronted with an appeal from conviction for
“The charge of possession of a narcоtic drug requires a union of act and intent. The intent necessary to establish the crime of possession simply does not exist when the amount is so minute as to be incapable of being apрlied to any use, even though chemical analysis may identify a trace of narcotics.”
Other cases in which it was held that possession of minute quantities of a narcotic useless for either sale or consumption is an insufficient foundation upon which to sustain a conviction for possession are: People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665 (1966); State v. Larkins, 3 Wash.App. 203, 473 P.2d 854 (1970); State v. Haddock, 101 Ariz. 240, 418 P.2d 577 (1966).
Therefore, I respectfully dissent to this decision for the foregoing reasons. This conviction should have been for the misdemeanor offense of USE of marihuana.