Woods v. State
526 P.2d 944
Okla. Crim. App.
1974
Check Treatment

*1 WOODS, Appellant, Roy Lee Oklahoma, Appellee.

The STATE of

No. O-74-53. Appeals of Oklahoma. Criminal

Sept. *2 Smith, ap- City, for

Oyler & Oklahoma pellant. Gen., Bill Atty.

Larry Derryberry, Gen., appellee. Bruce, Atty. for Asst. OPINION BLISS, Judge: Presiding County, Court, Oklahoma the District Roy CRF-71-2327, appellant, Lee No. Case for the of- guilty Woods, plea entered Degree and Rape in the Second fense 15, (3) three 1972, February assessed on 3, 1973, May suspended sentence. On year revoke said application to 24, 1973, at July filed and on defendant’s on revoca- From revoked. sentence was per- timely proceeding defendant appeal to this Court. fected an while defendant facts reveal mentioned probation for the above on sentence, he was year three with a Assault with the offense of charged Intent to Kill. Deadly Weapon with 15, 1972. filed on November charge was 14, February on jury trial was A 1973, for the reason and was mistried verdict jury could deliberate 1973, 20, retrial of conclusion. On June was dismissed assault this case prove prejudice as did the State why they failed to diligence in April prosecuting present witnesses. On was arrested the defendant Intoxication. On the offense of Public Municipal Court of April guilty City, plea entered twenty paid fine the offense ($20.00) dollars. hearing- allega- on revocation three wit- intoxication and such an

At a City Police De- give from the Oklahoma tion was insufficient to notice nesses partment concerning testified the arrest of to defendant evidence would be taken for the defendant Officer offense of intoxication rather judgment Duane testified that he arrested than mere Carruth admission of the m., approximately conviction; the defendant at a. 1:00 sentence on and that ad- *3 April 29, 1973, nightclub outside of local missions made defendant the arrest- arrest, police and that at of the ing defend- officers were made without predicate ant a strong had odor of alcohol about his of Miranda admonitions. person and not could stand without assist- considering Before each one of Upon custody, taking ance. defendant into arguments separately, these it is first im Carruth instructed he defendant was under O.S.1971, 991b, portant to note that 22 § arrest for drunk. Car- specifically requires pro of the revocation ruth did not inform defendant of his con- bationary upon “compe status founded rights. stitutional important tent evidence.” It is further McBride, Officer David also of the note, however, that from a constitutional City Department, Police testi- standpoint, requirement of due fied ato conversation had he with defend- generally proceeding satisfied police at the station to his book- which fundamentally pro a fair A one. on the drunk charge. During bationer panoply is not entitled to the full this conversation defendant discussed his rights constitutional in hearing alleged activities relating to the in- assault nature. Gagnon cident on November 1972. McBride 93 S.Ct. (1973). L.Ed.2d 656 See stated that it was the defendant who initi- Collyar, Okl.Cr., also In re 476 P.2d 354 ated the conversation and since there was (1970). is with the above mentioned interrogation no involved did not dis- standard construed in language cuss rights constitutional with the defend- 991b, that defendant’s ar ant. guments analyzed. We, therefore, must be analysis will conduct an of each one of witness, The third State’s Officer Har- arguments these separately. Neal, old P. testified accompanied that he during Officer McBride the conversation argues Defense counsel the evidence re- defendant, with the and that he did not ex- garding the offense Assault with a plain to defendant rights. his constitutional Deadly Weapon with Intent to Kill was in- admissible as the case was dismissed on its Defense argues counsel prop- his first merits, prejudice, for the reason osition the evidence adduced at the revoca- State, trial, at the second failed to show tion hearing is legally to sus- diligence in obtaining witness- State’s tain probationer’s the court’s finding that es. For the sup- reason above the court suspended sentence have re- been should pressed transcript testimony adduced that; argues voked. Counsel evidence ad- at the first trial. In substance counsel duced regarding an alleged in the argues compelled this Court is to hold that revocation application violated the defend- acquittal or dismissal a case ant’s privilege against jeopardy double merits, upon its and in an instance where acquitted defendant was offense; for that pending for that offenses, evidence of irrelevant not al- offense, alleged conducting the trial court leged in the application was im- proceeding estopped the revocation from properly admitted; transcript considering that that offense preliminary hearing on one offense as a basis for revocation. improperly was admitted evidence; into In Marutzky rev- the case of Okl. ocation alleged Cr., a conviction for the offense 514 P.2d this Court dis evidence. on the same ceeding conducted ju- res the rule of cussed not an is- estoppel is find Consequently, we application to revo its dicata, estoppel, and in this sue Marutzky, case. estoppel the issue of entertained alleges evidence next Defendant two revocation where circumstances under application to alleged in the an offense of same conducted hearings were This evi improperly admitted. revoke proceeding first revocation fense at the made involved declarations dence of the revoca culminating with dismissal These decla arrested. defendant was time sub its merits. state tend to show defendant’s rations initiated in sequent For this time of arrest. at the intoxication a revocation requesting same court there they admissible. We reason were However, at for the same offense. bation without proposition to be fore find this judg proceeding the second merit. sentence, had been entered ment *4 argues that next counsel Defense former revocation subsequent to the transcript the the of judgment and this ceeding, was introduced Danger Assault with a the offense of for was the sole basis and sentence was im Weapon Intent to Kill ous in Ma- probation. We the for admitted into evidence properly supra, that the introduction rutzky, diligence show the did not reason State hear at the judgment and sentence second testimony by subpoenaing this obtaining signifi a sufficient ing was to constitute their and the witnesses unavaila signifi a cant in the facts. Such variation bility. assignment of error Counsel’s following prior revoca cant variation the the case of regard is well taken. provide proceeding was sufficient to Okl.Cr., 1290 507 P.2d Moore v. upon the revocation new evidence itself to the addressing Court predicated. Consequently, be the could hearing speak same issue a revocation applied estoppel rule of was not in that fol Bussey stated as ing through Judge case. : lows appear would that the rule then proposition asserts “The final estoppel may properly applied in rev of be admitting the tran- trial court erred appli ocation such testimony. Trooper script of Green’s ordinarily would to mul cation confined the taken in that proposition is well predicated tiple hearings revocation all diligence did not State establish upon and the same issues evidence. the presence attempting to obtain estoppel barring extension of issuance than the Witness Green of evidence admission on va- subpoena Green criminal for which 719, Page, Barber v. cation. acquitted been tried and cannot be consid 255.” 20 L.Ed.2d opinion. ered in detail in this First of all transcript im- though the abové Even note, we in the instant case the cu- admitted, only this is note properly upon a acquitted was not of the offense evidence ad- in that the mulative evidence finding of fact the trier of facts. The this ev- in addition to duced at the procedur dismissal resulted as matter a violation prove idence was Consequently, al defect. in this instant of the terms of a trier did not of the facts exonerate probationer. opinion It is this Court’s finally argues in counsel Defense acquitted is not trier by the that violations proposition first his upon of facts an of the issue whether insufficient are application to revoke it, fense was committed and he committed he would be on notice place defendant there can be no of the rule of against evidence of quired defend In the Intoxication. Public estoppel subsequent offense of to a presumed ting note the as a trier of facts application to revoke we amended competent evi- for revo- found grounds set forth allegations hearing. Consequently dence adduced at state as follows: may even the conversation have WITH crime ASSAULT “Committed been, evidence, inadmissible IN- A DEADLY WITH WEAPON intoxication, only it is evidence of KILL on November TENT TO surplusage. # CRF-72-2724. in case Convicted of PUBLIC DRUNK proposition, In defense counsel’s second 1973.” argues the court trial did not conduct compliance for argues Counsel first the conviction minimal note plea constitutional standards. We guilty drank entered conducting the trial court Municipal City, complied with 22 991b. That is inadmissible the reason section the statute reads as follows: constitutional admonitions were afford- plea his entering ed defendant suspend- “Whenever a sentence has been of guilty. agree with in this We counsel per- ed the court after conviction of a regard judgment and find the and sentence crime, any son for sen- conviction not admissible. revoked, person may tence of said argues ap- Counsel further that since the part, any whole or in cause unless plication conviction, alleges a it does not competent justifying the revo- place defendant on notice he be re- cation of said sentence is *5 quired against testimony to defend and evi- presented to the court to at a regarding dence such an offense. With purpose. may held for court that The contention, disagree. Although portion revoke a of the sentence and application allege to revoke does a convic- part revoked, leave remaining tion, itself is sufficient to suspended but for the remainder of the place defendant on notice that he will be sentence, term of the and under the required against to defend the offense of applying person visions to it. The Public For Intoxication. this reason we suspended being whose sentence is con- reject defense argument counsel’s sidered for revocation at said evidence of the intoxication offense by right shall have represented to be improperly admitted. The counsel, present to in evidence his own in itself even it allege does convic- behalf and to be the wit- confronted tion, is sufficient place to on no- defendant against nesses him. Any order of the tice against to defend evidence sentence, suspended court revoking such an offense. This is evidence suffi- part, subject in whole in to or shall cient justify in itself to revocation of de- appeal, appeals review on as in fendant’s State, See Carson v. criminal that cases. Provided however Okl.Cr., ; 493 (1972) P.2d Knight 1397 v. if the crime for which the State, Okl.Cr., 506 (1973); P.2d 927 and felony, given . sentence is was a Hood v. Okl.Cr., 513 P.2d 328 reason for be that the defend- (1973). We therefore find the errors felony, he shall not be committed argued in proposition the first are insuffi- pending appeal.” allowed bail cient to vitiate the court’s order of revoca- probationer At the hearing in the instant tion as there is sufficient to sus- evidence counsel, an case afforded availed of tain the revocation. opportunity in his present to own evidence behalf, evidence of intoxi and witness- was confronted unnecessary it is court, against men- determine the es him. The trial as admissibility before, fully of the admissions complied made with tioned out Miranda warnings. judge procedure A trial sit- in of said above the conduct sub- Gagnon, supra, does question therefore is hearing. The probationer’s probation- stance holds procedure conform statutory the above ary may status not be within the Gagnon revoked provisions set forth imposes min realm of due unless a supra, a afforded, Morrissey at requirements forth in set imal first Brewer, his arrest to determine whether L.Ed.2d probable there is of a cause to believe that he in the revocation 4 conditions, probation has violated status in the probationer’s probationary and, second, a rea- sets forth a final Morrissey re same manner time parolee’s sonable to determine whether he the revocation of quirements on in fact and violated those conditions parole status. probationary whether re- status should be responds to counsel’s The State The court further each voked. at raising guidelines set forth arguments hearing the entitled notice stating Gagnon, supra, Gagnon of the violations retroactively and applied not to be to make him, against opportunity used be heard instant case would evidence, person, present confront quire application. The record a retroactive accusatory impartial evidence before an submitted Court indicates who hear- tribunal conclusion of the to revoke the May law, ing sets forth conclusions of fact and in the instant case was form, indicating written the reason May was decided on filed. proba- the decision whether or not pro imposes new Gagnon 1973. Since tionary status revoked. guidelines cedural of the Oklahoma Section 991b proceedings, be extenuat should there not complies with the substantially Statutes case the circumstances in the instant Gagnon, supra, set holdings forth applied not be and, respects respects most in some proceeding this revocation as this Court safeguards; vides additional will not make retroactive *6 statutory right counsel at being, that to Bounds, a Foy Gagnon, supra. See adjudicatory stage How However, 1973). (4th F.2d 286 Cir. ever, supra, construing Gagnon, in in the note that on June authority certain difficul statutory of our to revoke sentence amended in to the regard ties are created to include the offense a conviction “prelimi to refers as Gagnon of what entered on Public Drunkenness no nary statute sets forth hearing.” Our subse 1973. Said amendment occurred hearing requirement. stage such Further, quent the to the decision. adjudica in the to refers to ferred 991b in the included the amendment was § tory issue of whether stage wherein the the primary basis for the revocation and probationary status will probationer’s hearing evidence adduced at the revocation finally It there revoked is determined. be rea For centered offense. the necessary to include in fore becomes apply is the necessary son it to we find hearing preliminary procedure a to supra, in guidelines Gagnon, forth set in hearing forth set in that § addition to to the the instant case as the amendment 991b. suspended sentence to revoke subsequent to decision occurred the customarily the jurisdiction it In this reject the Assist Gagnon. therefore We before probationer procedure bringing and will Attorney argument General’s the probationer arraign the on to the court Gagnon- determine the judge who before the application to revoke It status. conjunction 991b such probationer with placed § interpretation be this Court’s the in the case at bench. circumstances supra, Gagnon, fully comply that to hearing with probationer procedure the detailed outlined in de- being preliminary afforded a hearing. Al cision, the trial court would required though Cameron, rule recited in the arraignment application, parole, refers to mentioned presence probationer, to receive evi- previously is applicable as to a proba well dence from a witness which establishes the Consequently, tioner. we find that the ab probable probationer cause that has violat- timely objection proba sence of a waived probation. Conse-, ed the terms of his right tioner’s hearing. A hear quently, this Court finds that it neces- ing should be held within a reasonable time sary upon arraigning probationer after the issuance of a violation warrant. given However, that evidence be lapse of time or the absence probable probation- establishes cause a hearing does not in itself establish a er has violated the probation- terms process violation of delay due as the must ary opportu- status and he be afforded the prejudicial before the absence consti nity to any accusatory confront evidence at tutes such a denial. See Williams v. Pier this stage. is to pont, F.Supp. 1311 (D.C.Mo.1970). probationer be afforded in addition to the We therefore find that even hearing ordinarily conducted in procedure afforded in the in- compliance with 991b. stant case a preliminary § did not afford him preliminary stage only issue hearing, the absence of objection and the question probable is whether there cause prejudice resulting lack from adjudication hold final the absence of the not consti- did revocation of consequently tute denial of due error beyond was harmless a reason- It is this opinion Court’s sub- 991b § propo- able doubt. find this We therefore stantially complies with the rule set forth sition be without merit. respects. there- We revoking probationer’s The order sus- fore adjudication determine that the final pended affirmed. compliance with following preliminary 991b had at is ar- BRETT, concurs results. J. brought court, rested and before arrest, reasonable time after abe BUSSEY, J., concurs. compliance Gag- cedure in substantial

non, supra, and process. BRETT, Judge (concurring results) : necessary I concur in the results becomes reached therefore *7 majority opinion af determine whether relief should be reasons requirement preliminary hearing prior of a forded instant case 'Gagnon. on revocation mandated the basis of the Gener ally, the Federal have held U.S. Courts rule, applicable 36 L.Ed.2d 656 waived construing the above object; by the jurisdiction defendant’s failure to Federal the cases pre given the notice Morrissey, and that no State’s to revoke sufficient advise defend- liminary pa interview fact introduced necessary does evidence would be parolee role violation is violation, offense of Public Intoxi- persist in he committed the his innocence of his cation in violation of the conditions if he desire to waive otherwise indicates competent ev- Fisher, See, and that hearing. local Cameron justify the find- was introduced to idence U.S.App.D.C. (1963). 320 F.2d 731 fact com- judge of the trial objection was case no instant pounded adjudicatory mitted that offense.