John Carl Fike v The State Of Oklahoma

F 2003-816

Filed: Dec. 16, 2004

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

John Carl Fike appealed his conviction for possession of cocaine, methamphetamine, and marijuana. The court upheld the convictions and sentences for possession of cocaine and marijuana but reversed the conviction for methamphetamine. Judge Chapel dissented, believing that the detention and search were not appropriate.

Decision

The Judgment and Sentences imposed in Texas County District Court, Case No. CF 2001-106, Counts 1 and 3, are hereby AFFIRMED. The Judgment and Sentence imposed on Count 2 is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• Was the roadblock conducted by the officers proper in this case?
• Was Mr. Fike illegally detained during the stop?
• Did the State show a proper chain of custody for the evidence?
• Were the sentences imposed on Mr. Fike excessive?
• Did cumulative error deprive Mr. Fike of a fair trial?
• Did Mr. Fike's convictions for both possession of cocaine and possession of methamphetamine violate double jeopardy?
• Was Mr. Fike denied due process or notice regarding the Victim's Compensation Assessment imposed by the trial court?
• Did the trial court act within its discretion when it denied probation to Mr. Fike?

Findings

• The roadblock was proper.
• Appellant was not unlawfully detained.
• The evidence's chain of custody was sufficient.
• The sentences were not excessive.
• There was no cumulative error that deprived Appellant of a fair trial.
• The conviction for Count 2, Unlawful Possession of Methamphetamine, is reversed and remanded with instructions to dismiss.
• The Judgment and Sentences imposed on Counts 1 and 3 are affirmed.

F 2003-816

Dec. 16, 2004

John Carl Fike

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHNSON, PRESIDING JUDGE: Appellant, John Carl Fike, was convicted by a jury of Possession of Cocaine (Count 1), in violation of 63 O.S.Supp.1999, § 2-402, Possession of Methamphetamine (Count 2), in violation of 63 O.S.Supp.1999, § 2-402, and Possession of Marijuana (Count 3), in violation of 63 O.S.Supp. 1999, § 2-402, in Texas County District Court, Case No. CF 2001-106. The Honorable Greg A. Zigler, District Judge, presided at trial held March 31, 2003 through April 3, 2003. The jury set punishment at five (5) years imprisonment on Counts 1 and 2; fined Appellant seven thousand dollars ($7,000.00) on Counts 1 and 2; set sentence at six (6) months on Count 3, and imposed a five hundred dollar ($500.00) fine on Count 3. Judgment and Sentences were imposed in accordance with the jury’s verdicts on June 18, 2003. Appellant then filed this appeal.

Appellant raises the following five (5) propositions of error:
1. The roadblock was not proper in this case;
2. Mr. Fike was illegally detained;
3. The State failed to show a proper chain of custody; thus, the convictions must be reversed;
4. The sentences were excessive; and,
5. Cumulative error deprived Appellant of a fair trial.

After thorough consideration of the propositions raised, the arguments presented, the Original Record, Transcripts and briefs of the parties, we have determined Count 2 should be reversed and remanded with instructions to dismiss for the reasons set forth below. The remaining propositions of error do not warrant relief.

Although set up under seemingly unusual circumstances, we find the roadblock conducted by the officers was proper in this case. See e.g. Brantley v. State, 1976 OK CR 82, 548 P.2d 675; Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979); Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983); 47 O.S.1981, § 6-112. Further, Appellant was not unlawfully detained. U.S. v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998) (a canine sniff of a legitimately detained automobile is not a search within the meaning of the Fourth Amendment); see also U.S. v. Morales-Zamora, 914 F.2d 200, 203, overruled on other grounds, 974 F.2d 149 (an individualized reasonable suspicion of drug-related activity is not required when the dog sniff is employed during a lawful seizure of the vehicle); U.S. U. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1993)(duration of seizure should be minimally intrusive). Propositions One and Two are denied.

Proposition Three is also denied as a sufficient foundation was laid for the admission of the evidence and Appellant only speculates that tampering could have occurred. See Wilson v. State, 1998 OK CR 73, I 51, 983 P.2d 448, 462, cert. denied, 528 U.S. 904, 120 S.Ct. 244, 145 L.Ed.2d 205 (1999)(when there is only speculation that tampering or alteration may have occurred, it is proper to admit the evidence and let what doubt there may be go to the weight to be afforded the evidence). No relief is warranted on Proposition Four.

However, we find Appellant’s convictions for both Unlawful Possession of Cocaine (Count 1) and Unlawful Possession of Methamphetamine (Count 2) violate double jeopardy. Watkins v. State, 1991 OK CR 119, I 43, 829 P.2d 42, 43, modified in Watkins v. State, 1992 OK CR 34, 855 P.2d 141. A claim of double jeopardy is so fundamental that it can be raised by this Court on its own motion. See e.g. Ashinsky v. State, 1989 OK CR 59, I 26, 780 P.2d 201, 207. Accordingly, Appellant’s conviction for Count 2, Unlawful Possession of Methamphetamine, is hereby reversed and remanded with instructions to dismiss.

The remaining sentences are well within the statutory ranges of punishment and do not shock the conscience of the Court. See 63 O.S.2001, § 2-402(B); Rea U. State, 2001 OK CR 28, I 5, 34 P.3d 148, 149. Further, Appellant was not denied due process or notice when the trial court assessed a Victim’s Compensation Assessment against him. The record discloses sufficient information for the trial court to conclude Appellant could pay the Fifty Dollar ($50.00) Victim’s Compensation Assessment. 21 O.S.2001, § 142.18; Cf. Walters v. State, 1993 OK CR 4, I 15, 848 P.2d 20 (reversed a $10,000.00 assessment and remanded for a proper hearing, stating [w]e cannot presume the statutorily required elements were considered where no evidence in the record addresses them). Lastly, the trial court acted within its decision when it denied probation. 22 O.S.Supp. 1999, § 991a. Proposition Five is denied; Appellant was not denied a fair trial due to cumulative error. Ryder v. State, 2004 OK CR 2, 9 94, 83 P.3d 856, 878.

DECISION
The Judgment and Sentences imposed in Texas County District Court, Case No. CF 2001-106, Counts 1 and 3, are hereby AFFIRMED. The Judgment and Sentence imposed on Count 2 is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

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Footnotes:

1. 63 O.S.Supp.1999, § 2-402
2. U.S. v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998)
3. U.S. v. Morales-Zamora, 914 F.2d 200, 203
4. U.S. U. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1993)
5. Wilson v. State, 1998 OK CR 73, 51, 983 P.2d 448, 462
6. Watkins v. State, 1991 OK CR 119, 43, 829 P.2d 42, 43
7. Ashinsky v. State, 1989 OK CR 59, 26, 780 P.2d 201, 207
8. 63 O.S.2001, § 2-402(B)
9. Rea U. State, 2001 OK CR 28, 5, 34 P.3d 148, 149
10. 21 O.S.2001, § 142.18
11. Walters v. State, 1993 OK CR 4, 15, 848 P.2d 20
12. 22 O.S.Supp. 1999, § 991a
13. Ryder v. State, 2004 OK CR 2, 94, 83 P.3d 856, 878

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-402 (1999) - Possession of Controlled Dangerous Substances
• Okla. Stat. tit. 47 § 6-112 (1981) - Road Block Procedures
• Okla. Stat. tit. 21 § 142.18 (2001) - Victim's Compensation Assessment
• Okla. Stat. tit. 22 § 991a (1999) - Probation
• Okla. Stat. tit. 63 § 2-402(B) (2001) - Possession of Controlled Dangerous Substances

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Brantley v. State, 1976 OK CR 82, 548 P.2d 675
• Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979)
• Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983)
• U.S. v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998)
• U.S. v. Morales-Zamora, 914 F.2d 200, 203
• U.S. U. Place, 462 U.S. 696, 709, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1993)
• Wilson v. State, 1998 OK CR 73, 983 P.2d 448
• Watkins v. State, 1991 OK CR 119, 829 P.2d 42
• Ashinsky v. State, 1989 OK CR 59, 780 P.2d 201
• Rea v. State, 2001 OK CR 28, 34 P.3d 148
• Walters v. State, 1993 OK CR 4, 848 P.2d 20
• Ryder v. State, 2004 OK CR 2, 83 P.3d 856