Kuerschner v. State

1972 OK CR 51, 493 P.2d 1402, 1972 Okla. Crim. App. LEXIS 438
CourtCourt of Criminal Appeals of Oklahoma
DecidedFebruary 23, 1972
DocketA-16132
StatusPublished
Cited by9 cases

This text of 1972 OK CR 51 (Kuerschner v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kuerschner v. State, 1972 OK CR 51, 493 P.2d 1402, 1972 Okla. Crim. App. LEXIS 438 (Okla. Ct. App. 1972).

Opinion

OPINION

SIMMS, Judge.

Steve Kuerschner, hereinafter referred to as defendant, was charged in the District Court of Oklahoma County, Oklahoma, with the offense of Sale of Marijuana, and was later tried, found guilty and convicted by a jury. His punishment was fixed at á term of three (3) years in the state penitentiary, and from said judgment and sentence, a timely appeal has been perfected to this Court.

At the trial, Midwest City Police Officer Robert W. Kellington testified that on March 12, 1970, he had occasion to be at Area E of the Tinker Field residential area, more specifically the address of 5129 Chenault Street, the residence of the defendant. Kellington testified at the time that he was working on an undercover narcotics investigation for the Midwest *1404 City Police Department and that he drove to the Kuerschner residence with three other subjects in the car, all of whom were white males. Kellington testified one of the three young males went to the Kuer-schner residence, advised Kuerschner that they were waiting for him outside; that Kuerschner came from the residence and got into the car with the officer, at which point Officer Kellington purchased a baggie of marijuana, referred to as “keef,” for the price of $7.00.

Kellington identified the defendant in the courtroom as the person who had sold him the marijuana, stated that after the sale he transferred the marijuana to two other members of the Midwest City Police Department after marking it for identification, and also testified that the Chenault Street address was within Oklahoma County-

On cross-examination Kellington testified that one of the other three young males in the automobile at the time of the sale was an individual by the name of Alex Cardenas. He stated Cardenas was acquainted with individuals in the narcotics traffic and assisted the Midwest City Police Department in that narcotics investigation. He testified the other two boys were acquainted with Kuerschner and Cardenas and that after the sale they drove the two boys back to the vicinity of the Tinker Field Bowling Alley where they dropped them off.

John McLaughlin, State Bureau of Investigation Chemist, testified that on March 19, 1970, a packet of evidence was received by his laboratory from the Midwest City Police Department and subsequently on March 30, 1970, he removed that packet from the evidence locker, examined the contents thereof both chemically and microscopically, and found the same to be wholly from the plant Cannabis Sati-va, also known as marijuana. The chemist identified the package introduced into evidence as State’s Exhibit Number One.

Alex Cardenas was the first witness called for the defense. Cardenas testified he was a twenty-year-old military dependent living on Tinker Air Force Base; that he is acquainted with one Robert Kelling-ton and has participated with him in a narcotics investigation. His testimony concerning the marijuana buy at the Kuer-schner residence was substantially the same as that of Officer Kellington; however, Cardenas refused to answer several questions with regard to personal involvement in narcotics traffic by taking the Fifth Amendment. He testified he did not purchase any marijuana on the date in question from the defendant. He also testified he made the initial contact with Kuer-schner to set up the buy for Kellington. Cardenas also testified he had been convicted of misdemeanor thefts in the State of Texas and was on probation both at the time of trial and the time of the offense. The defendant also called John Ross and Vick Dragony, who testified they were the other two individuals in Kellington’s car at the time the marijuana buy took place. They testified they were both military dependents who lived on Tinker Air Force Base and that they were acquainted with Bobby Kellington, Alex Cardenas and the defendant. Both boys’ testimony with regard to the marijuana buy was substantially the same as that of Officer Kellington and Cardenas with the exception that both boys testified the transaction took place between the defendant and Cardenas rather than between the defendant and Kelling-ton.

Rebuttal testimony was offered on behalf of the State, that the two witnesses Dragony and Ross talked with Cardenas in the court house during the trial and discussed the facts substantially as Cardenas had testified to them. Rebuttal offered on behalf of the defendant was to the effect that such a conversation had not taken place.

The defendant cites seventeen (17) propositions of error. However, for the pur *1405 pose of brevity, and inasmuch as the defendant has consolidated some of his points, this Opinion will deal with five basic propositions.

The first proposition to be dealt with is that of pre-indictment delay or lack of a speedy trial. The Record reflects the alleged offense was committed on March 12, 1970, and that the Information upon which the arrest warrant was issued for the defendant was not filed until April 9, 1970. The defendant contends this is an unconscionable and prejudicial delay.

We found this contention to be completely without merit inasmuch as after searching the Record it is the opinion of this Court that the defendant has failed to meet the burden assigned to him of showing what prejudice, if any, attached to him as a result of this delay. The case of United States v. Deloney, 389 F.2d 324 (7th Cr., 1968), cited by the defendant states that:

“ * * * an accused must show he has been prejudiced by the delay. Then, the burden is on the Government to show the delay was the result of a valid police purpose.”

Additionally, this Court has held that where the contention is made by the defendant that his right to a speedy trial has been denied, the burden is upon him to show that the delay was the fault of the State. Ex parte Wilkerson, 73 Okl.Cr. 32, 117 P.2d 172 (1941).

The next basic proposition cited as error by the defendant is a lack of jurisdiction. It appears from the Record that the alleged offense and the arrest of the defendant all took place on Tinker Air Force Base, which, although it is located within the confines of Oklahoma County, is alleged by the defendant to be part of a federal reservation and therefore without the jurisdiction of the State of Oklahoma. This particular question was briefed extensively by both sides, and this Court finds the jurisdiction was, in fact, at the time of the offense and the arrest vested wholly and completely in the State of Oklahoma.

The brief of the Attorney General is abundantly clear in setting forth the controlling statutes and case law insofar as jurisdiction over Area E of the Tinker Air Force Base is concerned. Counsel for the defendant relies wholly upon Oklahoma Statutes as the basis for his jurisdictional arguments; however, he failed to cite those Federal Statutes and the cases which construe those Federal Statutes subsequent to the passage of the Oklahoma law upon which he relies. The controlling statutes appear to be 42 U.S.C. 1964, §§ 1501, 1547, and 50 F.C.A. 1964, § 175.

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1979 OK CR 48 (Court of Criminal Appeals of Oklahoma, 1979)
Towry v. State
1975 OK CR 167 (Court of Criminal Appeals of Oklahoma, 1975)
Hart v. State
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Turman v. State
1974 OK CR 88 (Court of Criminal Appeals of Oklahoma, 1974)
Vassaur v. State
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Murdock v. State
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McFay v. State
1972 OK CR 164 (Court of Criminal Appeals of Oklahoma, 1972)
Ruhm v. State
1972 OK CR 101 (Court of Criminal Appeals of Oklahoma, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
1972 OK CR 51, 493 P.2d 1402, 1972 Okla. Crim. App. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuerschner-v-state-oklacrimapp-1972.