Wilson v. State

1994 OK CR 5, 871 P.2d 46, 65 O.B.A.J. 548, 1994 Okla. Crim. App. LEXIS 8, 1994 WL 34088
CourtCourt of Criminal Appeals of Oklahoma
DecidedFebruary 7, 1994
DocketF-89-985
StatusPublished
Cited by14 cases

This text of 1994 OK CR 5 (Wilson 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
Wilson v. State, 1994 OK CR 5, 871 P.2d 46, 65 O.B.A.J. 548, 1994 Okla. Crim. App. LEXIS 8, 1994 WL 34088 (Okla. Ct. App. 1994).

Opinions

OPINION

LUMPKIN, Presiding Judge:

Appellant Gary Allen Wilson was tried by jury and convicted of Possession of a Controlled Dangerous Substance (PCP) With Intent to Distribute in violation of 63 O.S.Supp. 1985, § 2-401, in the District Court of Tulsa County, Case No. CF-88-4540. The jury recommended as punishment fifteen (15) years imprisonment. The trial court sentenced accordingly and it is from this judgment and sentence that Appellant appeals.

On November 9, 1988, at approximately 9:30 a.m., Officer Bachelder, Tulsa Police Department, stopped a black Chevrolet Blazer for a routine traffic violation. The driver of the vehicle, Shawn Starr, was driving with a suspended license. Issuing him a traffic citation, the officer approached the passenger, Appellant, to determine if he could drive the vehicle. Appellant identified himself and stated that he was the owner of the vehicle. When Appellant could not produce a driver’s license, a computer check revealed two (2) outstanding misdemeanor warrants for Appellant’s arrest. His subsequent arrest left the Chevrolet Blazer unattended, so Baehelder decided to impound the vehicle for safe keeping. A routine inventory search revealed an eight (8) ounce bottle of PCP and several glass vials.

In his first proposition of error, Appellant contends that he was denied a fair trial by the State’s improper use of a “drug dealer” profile. Appellant directs our attention to evidence introduced by the State that he was black; unemployed, yet the owner of a home and a vehicle; and that he was from Compton, California, the apparent home of the “Crips” gang, to show that he fit the stereotype of a drug dealer and was therefore guilty of the charged offense.

At trial, the sole objection to this evidence was not that of improper character evidence now raised on appeal, but to its relevance. This Court has repeatedly held that when a specific objection is made at trial to the admission of evidence, no different objection will be considered on appeal. Duvall v. State, 825 P.2d 621, 627 (Okl.Cr.1991); Tyler v. State, 777 P.2d 1352, 1354 (Okl.Cr.1989). Thus, Appellant has waived all but fundamental error review.

Admitting this type of character evidence as substantial evidence of guilt is prohibited by 12 O.S.1981, § 2404(B) 1 The particular facts which are used to define a “profile” may be admissible for other purposes such as proof of motive, intent, absence of mistake or accident, identity or common scheme or plan. See Burks v. State, 594 P.2d 771, 772 (Okl.Cr.1979), overruled in part on other grounds, 772 P.2d 922 (Okl.Cr.1989). [49]*49However, while such facts may be admissible, evidence concerning the “profile” itself should be excluded. The federal courts have recognized the “drug courier profile” as an investigative tool used by the Drug Enforcement Agency. United States v. Hernandez-Cuartas, 717 F.2d 552 (11th Cir.1983). See also United States v. Williams, 957 F.2d 1238 (5th Cir.1992); United States v. Lui, 941 F.2d 844 (9th Cir.1991); United States v. Jones, 913 F.2d 174 (4th Cir.1990). Its use has been limited to the threshold finding of reasonable suspicion for temporary detention. Its use has not been extended to the finding of probable cause for arrest, much less as substantive evidence of guilt. See U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

The improper admission of this evidence does not require reversal in this case as there is no reasonable probability that this evidence might have contributed to the conviction. See Chapman v. California 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), quoting Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). See also U.S. v. Hastings, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). Evidence presented by the State, excluding the improperly admitted character evidence, showed that in a vehicle, either owned or rented by Appellant, directly behind the passenger seat in which Appellant was sitting, was found a nearly full eight (8) ounce bottle of PCP, a sack containing eight vials and a paring knife. The driver of the vehicle denied possession of the illegal substance. Expert witnesses testified that the quantity of the illegal substance was too large for personal use and was consistent with distribution. Based upon this evidence, a reasonable trier of fact could have found Appellant guilty of possession of the illegal substance with the intent to distribute. Any error in admitting the improper character evidence did not impair a basic constitutional or statutory right and did not contribute to the conviction; therefore it is harmless beyond a reasonable doubt. See Jones v. State, 781 P.2d 326 (Okl.Cr.1989).

In his second assignment of error, Appellant asserts the State failed to present sufficient evidence to prove that he should be punished as a habitual offender. The record reflects that during the second stage of trial, the State introduced a Judgment and Sentence for Robbery by Force for one Gary Allen Hughes. Appellant objected on the grounds of identity, but offered no proof. The objection was overruled and the exhibit admitted.

Appellant was charged in the felony information as Gary Allen Wilson aka Hughes. During the first stage of trial, the State presented evidence showing that Appellant was known as both Gary Allen Wilson and Gary Allen Hughes. The Judgment and Sentence introduced was from Tulsa County, the same county in which the instant offense was prosecuted, and the birthdate listed on both the information and the Judgment and Sentence is the same. Under these facts, the Judgment and Sentence was sufficient to sustain the State’s burden of proving the prior conviction, therefore the question of identity was for the jury’s determination after a proper instruction and upon a consideration of all surrounding facts and circumstances. Wilson v. State, 568 P.2d 1323, 1326-27 (Okl.Cr.1977). See also Battenfield v. State, 826 P.2d 612 (Okl.Cr.1991).

Appellant argues in his third assignment of error that the trial court erred in failing to give a verdict form for the lesser included offense of possession of a controlled dangerous drug. The trial transcript indicates that the jury was given verdict forms for not guilty, guilty of possession with intent to distribute, and guilty of unlawful possession. No objection to these forms was raised by the defense. The Court read to the jury the three (3) possible verdicts. However, only two (2) of these forms made it into the record — not guilty and guilty of possession with intent to distribute.

Appellant has offered no support for his argument that the jury did not receive the proper verdict forms; therefore, we will not presume error from a silent record. See Ellis v. State, 795 P.2d 107, 109 (Okl.Cr.1990).

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Cite This Page — Counsel Stack

Bluebook (online)
1994 OK CR 5, 871 P.2d 46, 65 O.B.A.J. 548, 1994 Okla. Crim. App. LEXIS 8, 1994 WL 34088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-state-oklacrimapp-1994.