*1
statutes,
proved
olation
in
tradi-
be
order
to the finest
client conform
of his
repeat
to sustain a
I
what was
system jurispru-
of
conviction.
adversary
of our
tions
State,
my
stated in
dissent to Morris v.
dence.
Okl.Cr.,
citing
Supreme
what
Nevada
the
Court stated
BUSSEY, J., concurs.
possession
the
reference to
of narcot-
part
in
BRETT, Judge (concurring
ics, in that court’s
in
decision Watson v.
part):
in
dissenting
State,
(1972):
concerning LSD. as- jury returned verdict
fact that sentence, this convic-
sessing the minimum imposes upon burdens additional
tion penal system might justi- have been which SPRIGGS, Gordon suspension of the fiably by obviated Also, penitentiary there is noth- sentence. Appellee. Oklahoma, STATE record that the sus- ing to indicate No. A - 16715. pension might oth- not be warranted under Consequently, it circumstances. will er Court of Criminal of Oklahoma. necessary penal for the authorities to ob- June 1973. tain, store, provide daily ad- type particular of insu- ministration in order to assure requires
lin defendant
her continued livelihood. compelled also to dissent to this
I am treatment of defendant’s second
Court’s quantity of
proposition pertaining is no
narcotics There doubt considered.
my legislature intended mind but that the illegal quantity narcot- usable possessed,
ic considered in vi- otherwise *2 Bowman, Altus,
Alfred appellant. for L. Gen., Larry Derryberry, Atty. Fred An- derson, Atty. Gen., Briscoe, Asst. E. James Intern, Legal appellee. OPINION BUSSEY, Judge: Spriggs, Gordon hereinafter referred charged, tried and convicted the District Court of County, CRF-70-123, Case No. Jackson the offense of Unlawful Sale a Stimu- lant, punishment (5) fixed at five years imprisonment in the State Peniten- tiary and a one thousand dollar ($1,000) fine, and judgment from said and sentence perfected timely appeal has been to this traveler’s check and left the house. She Agent met Cookerly at a prearranged loca- Court. tion gave and he her two dollar bills. Cookerly, agent an trial At the Sid “they She returned to the house and were Investiga- State Bureau Oklahoma talking already about had 10, 1970, tion, that on December testified dropped.” (Tr. 43) The defendant asked *3 lady young a from Oklahoma he called her if drop” “I like to would and she Standerfer, meet him at the City, Nancy to bought one tablet. The told defendant Altus; that he had Office Sheriff’s get Sherri purse. to the tablet out of her year approximately one Nancy for known She laid down two dollars and the defend- as a confi- she worked for him and that picked up ant put it pocket. and it in his He direct- dential informant on narcotics. pretended tablet, She to take the but in- person her and directed that ed a search of stead gum stuck it into the bubble she was approximately At her searched. car be chewing. person Another in the house in- p. Thelma’s 11:00 m. he followed her to formed her that he could obtain for her a Approximately fifteen minutes later Cafe. larger him, quantity and she left at- she out of the cafe with an unidenti- came tempting purchase to as- tablets. On subject. a fied male He followed them to certaining person could not ar- approxi- At house at 1101 North Hudson. range purchase, they returned to the mately p. Nancy m. left the house 11:35 upstairs purchased house. She went prearranged and he met her at a location. another giving tablet from the gave pur- dollar bills to He her two many” being couple the last time “a He followed her back to chase narcotics. him subsequently two dollars. She met ap- the residence on North Hudson. At Agent Cookerly prearranged at the loca- proximately Nancy and another 1:10 a. m. gave tion and him the gum bubble contain- Nancy’s car, re- individual left the house ing the tablet and the second tablet. turning about fifteen minutes later. She Lowell, Jay a narcotics officer for the went back into the residence and remained Office, County testified Sheriff’s Jackson gave until a around 2:15 a. m. She him Nancy he searched Standerfer’s car piece gum of bubble which contained a evening in question on the and assisted small, tablet and another crushed round subsequent surveillance. green tablet. He sealed the items subsequently matchbox and it delivered to McAuliff, chemist with the Okla- John Investigation the State Bureau of Labora- homa Investigation, State Bureau of testi- tory analysis. analysis fied that he conducted a chemical tablets and in his two Nancy Standerfer testified that on De- they contained cross-examina- LSD. On 10, 1970, cember went at the she Altus qualitative tion he testified that he made a request Cookerly. of Mr. At the Sheriff’s quantitative analysis rather than Office she had a conversation with Cook- tablets. erly approximately and was At searched. Cockings For the defense testi- Sherri p. 11:45 she went to the cafe and or- m. at Nancy fied that she met Standerfer dered some hot chocolate. The defendant evening North Hudson on came into the cafe and after a short con- question; that she was at the residence all versation, invited her his “over to house.” evening that she did not see the de- they pro- The defendant left with her and any Nancy take money fendant from Stan- ceeded to a at house 1101 North Hudson. derfer. They went into the house and she in- persons.
troduced to several The defend- The defendant testified that he met Nan- ant fifty (50) offered to sell her tabs of cy Standerfer at Thelma’s Cafe and invit- LSD for one hundred ($100). dollars She my accompa- ed her “over to house.” She told go defendant that she cash a him would nied to the house and he introduced applying to the use of an informer who people Nancy- her to the various there. apply. he asserts testify not Thus does purchasing drugs. him He asked about failure officers that the drugs told her were in the house that there keep the informer under constant obser- purchase some, and that if she wanted the rule of brings the case within Parks,1 vation she to Artie would have talk Barnett, Cal.App.2d (1953) 118 drugs. He observed were it was held where give Artie Parks her a tablet which she flaw a fatal that such failure constituted selling took. He denied tablets rule does evidence. This in the chain of receiving any money denied from her. operator actual- who apply where Defendant first asserts that the search purchases narcotics testifies.” ly purchase of the informer to the the narcotics was insufficient in that the further held California *4 informer was a “known user of narcotics” testify at the that if the informer does and that the informer was not under con- trial, keep him under the failure to con- stant visual surveillance. firstWe observe . mere- stant surveillance: “. . would that the record does reflect that the in- credibility ly question for the raise a former, Miss was Standerfer a narcotic the instant jury consider . . .’’In addict. She testified that she had taken case, carefully Miss Standerfer “maybe times, half a dozen if that Agent Cookerly to leav- by searched years ago.” She testified further that “I strip A search ing the Office. Sheriff’s had used speed some in another case.” clothing and conducted but her was not (Tr. 53) Agent Cookerly testified that Agent examined. carefully hair were “she was very competent, reliable em- was satisfied she Cookerly testified that he ployee” and that she assisted him the in- person. Jay Low- had no narcotics on vestigation of “a hundred individuals.” Miss Stander- ell testified that he searched that he found no fer’s automobile Defendant cites as authority People v. pre- opinion that the Givens, drugs. are We 834, Cal.App.2d 191 Cal.Rptr. 13 ade- instant case was 157 sale search wherein the California Court held that quate. a strip required search is not when the in former is under constant by surveillance proposition contends The second police purchase until a drug is made. prove a that the State failed to “usable Defendant argues that since the informer authority as amount.” Defendant cites in the kept instant case was not under con 380, Quinones, 105 Ariz. 465 P.2d v. State observation, stant complete a more search stated: 360 wherein Arizona Court than the one required. conducted was We
are of opinion Givens, supra, is is “The amount of heroin involved here distinguishable from the instant case in small, mili- very amounting only .36 that in Givens the informant did not testi correctly points out grams. Defendant fy, where in the instant 116, case Miss Moreno, Stander that under 92 Ariz. State v. fer testify did at the trial. In Urias, 872, v. 8 374 P.2d and State v. Hawkins, Cal.App.2d 151, 218 Cal.Rptr. 32 Ariz.App. 18 where 446 P.2d 392the court stated: is of narcotics involved so the amount the realm of an small as to not be within
“Defendant’s contention evi- layman’s knowledge is is of usa- dence insufficient based on erro- uninformed bility, presented informer there must be evidence neous contention that where an by usability and also agent or at the trial as to its undercover testifies State person jury to the ne- of the from whom he claims an instruction to as narcotics, purchased cessity finding amount.” have the rules usable State, Okl.Cr., Lynn as a informer. 1. Artie identified in Parks was v. 1337 are that the better proposition We We therefore find this to be by rule stated without Wisconsin merit. Dodd, v. 137 N.W.2d
State
Wis.2d
proposition
The next
contends
wherein
Court stated:
that the
is
by
verdict
not sustained
suffi
majority
pos-
“The
rule seems to
be
cient evidence.
consistently
We have
held
illegal drug
session of a modicum of an
competent
where there is
evidence in
bring
is sufficient to
the defendant with-
the record from which the jury could rea
purview
in the
of the statute.”
sonably conclude that the defendant was
guilty
charged,
the Court of Criminal
The Court further stated:
verdict,
will not interfere with the
“A modicum means a little
small
though
even
sharp
there is a
conflict in the
quantity
is to be
understood
evidence and different
may
inferences
relationship
drug.
to the nature of the
therefrom,
drawn
since it is the exclusive
The amount need not be a usable amount province
jury weigh
the evidence
and it
quantity
drug
was said the
determine the facts.
Jones
possessed is not material. Peachie v. Okl.Cr.,
instruction the informer’s testi mony and further failed to instruct on the
term only “usable amount.” We need ob BRETT, J., dissents. serve that the object defendant did not court’s any instructions nor were written BRETT, (dissenting): Judge
requested instructions submitted. In Scha
State,
pansky
Okl.Cr.,
v.
to make the sale to the sent defendant Nancy Parks Standerfer. Rudy JIMENEZ, Cristobil purpose of to Thelma’s for the sole Cafe v. meeting paid facilitating between Appellee. Oklahoma, The STATE worked defendant. Parks informer and No. A-17754. police paid informer dur- and the Appeals of Oklahoma. of Criminal ing night the sale of to facilitate 13, 1973. June Therefore, Nancy I con- Standerfer. entrapped by Lynn
clude if Clarence informers, also en- this defendant was
trapped. Court, Supreme States United 423, Russell, 411 93
United States v. U.S. 1637, repeated (1973), L.Ed.2d 366
S.Ct. 36 approval said in what was Sherman 2 States,
United 356 U.S. S.Ct.
L.Ed.2d as follows: is the
“The enforcement function of law apprehen
prevention and the of crime Manifestly, that func
sion criminals. manufacturing
tion does not include the activity such that is crime. Criminal necessary weap strategy
stealth are
ons in the arsenal of the officer.
However, question ‘A different
presented design orig when the criminal *6 govern
inates with the officials
ment, implant in mind an disposition person the to com
innocent alleged
mit and induce its offense they may pros
commission in order that ” Citing ecute.’ Sorrells v. United
States, 210, 77 L. 287 U.S. 53 S.Ct. (1935).
Ed. 413 case,
As I the facts of this the in- view working
former Parks must been have in such a manner as to as- present at
sure that the narcotics would be time; right at oth- North Hudson erwise, he would not have delivered City, Bill, Berry, Oklahoma W. James only days to the house few appellant. alleged buy. the time set for the Gen., Atty. H. Larry Derryberry, Fred I do not contend that defendant While Anderson, Gen., Atty. appellee. Asst. person” was an “innocent the view from participating drugs, in the use there OPINION nothing “predis- to show that he was BLISS, posed” contemplat- Presiding Judge: drugs, as seller of as ed by person.” the term “innocent There- Appellant, Rudy here- Jimenez, Cristobil fore, I respectfully dissent to this decision. inafter referred to