Mortarice D. Collier v The State Of Oklahoma

F 2004-1091

Filed: Feb. 3, 2006

Not for publication

Prevailing Party: Mortarice D. Collier

Summary

Mortarice D. Collier appealed his conviction for Trafficking in Illegal Drugs (Marijuana) and Failure to Affix Tax Stamp. His conviction and sentence were reversed and remanded with instructions to dismiss. Judge Lumpkin dissented.

Decision

The Judgment and Sentences imposed in Craig County District Court, Case No. CF 2002-27, are REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

Issues

• Was the preliminary hearing evidence sufficient to support binding over Appellant for trial?
• Was Appellant denied his constitutional right to a speedy trial?
• Should the incarceration fees charged against Appellant be vacated or modified?
• Did Trooper Perry provide an insufficient chain of custody for the substance he seized that was the basis of the charges against Appellant?

Findings

• the court erred in determining the chain of custody was insufficient for the admissibility of evidence
• the convictions for Trafficking in Illegal Drugs and Failure to Affix Tax Stamp are reversed and remanded with instructions to dismiss
• the remaining propositions of error are rendered moot

F 2004-1091

Feb. 3, 2006

Mortarice D. Collier

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

C. JOHNSON, JUDGE:

Appellant, Mortarice D. Collier, was convicted of Trafficking in Illegal Drugs (Marijuana), in violation of 63 O.S.2001, § 2-415 (Count 1) and Failure to Affix Tax Stamp, in violation of 68 O.S.2001, § 450.8(B) (Count 2), in Craig County District Court, Case No. CF 2002-27. Mr. Collier waived jury trial and a bench trial was held on July 29, 2003, before the Honorable James Goodpaster, District Judge. Judgment and Sentence was imposed on September 18, 2003. Judge Goodpaster sentenced Collier to twelve (12) years imprisonment with a Twenty-Five Thousand Dollar ($25,000.00) fine on Count 1 and to five (5) years imprisonment on Count 2. Judge Goodpaster suspended all but One Thousand Dollars ($1,000.00) of the fine on Count 1 and ordered the sentences be served concurrently with credit for time served. The trial court on November 24, 2004 modified the sentence of imprisonment on Count 1 from twelve (12) years to five (5) years. Thereafter, Collier was granted an appeal out of time and filed this appeal.¹

Mr. Collier raises four (4) propositions of error:

1. The preliminary hearing evidence was insufficient to support binding over Appellant for trial;
2. Appellant was denied his constitutional right to a speedy trial;
3. Incarceration fees charged against Appellant should be vacated or modified; and,
4. Trooper Perry provided an insufficient chain of custody for the substance he seized that was the basis of the charges against Appellant.

After thorough consideration of the propositions raised, the Original Record, Transcripts, briefs and arguments of the parties, we find that Collier’s convictions for both Trafficking in Illegal Drugs and Failure to Affix Tax Stamp should be reversed and remanded with instructions to dismiss for the reasons set forth below.

The record reflects the State did not provide adequate proof of the chain of custody of the marijuana recovered from Collier’s vehicle. The State did not prove the location of the substance was secured for the ten days prior to its transportation to the OSBI laboratory for analysis and the packaging of the substance was not in the same form or condition as it was at the time the officer recovered the drugs from Collier’s vehicle. While there is only speculation that tampering may have occurred, chain of custody was not sufficiently established and the State did not show the law enforcement officer took reasonable precautions to preserve the original condition of the evidence.

Accordingly, Collier’s convictions for Counts 1 and 2 are hereby REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. Our decision on Proposition Four renders the remaining propositions of error moot.

DECISION

The Judgment and Sentences imposed in Craig County District Court, Case No. CF 2002-27, are REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS.

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Footnotes:

1. Collier was originally granted an appeal out of time in Case No. PC 2004-384 on May 11, 2004.
2. The appeal was still not timely filed, and Collier was granted a second appeal out of time on October 6, 2004 in PC 2004-880.
3. Driskell U. State, 1983 OK CR 22, I 59, 659 P.2d 343, 354; see also Faulkenberry v. State, 1976 OK CR 131, 11 7-8, 551 P.2d 271, 273.
4. Conde-Hernandez v. State, 1977 OK CR 204, 11 5-7, 565 P.2d 705, 707.
5. Wilson v. State, 1977 OK CR 251, 19 5-8, 568 P.2d 342.
6. Faulkenberry, id. at 6.

Oklahoma Statutes citations:

• Okla. Stat. tit. 63 § 2-415 (2001) - Trafficking in Illegal Drugs
• Okla. Stat. tit. 68 § 450.8(B) (2001) - Failure to Affix Tax Stamp

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:

• Driskell v. State, 1983 OK CR 22, I 59, 659 P.2d 343, 354
• Faulkenberry v. State, 1976 OK CR 131, 11 7-8, 551 P.2d 271, 273
• Conde-Hernandez v. State, 1977 OK CR 204, 11 5-7, 565 P.2d 705, 707
• Wilson v. State, 1977 OK CR 251, 19 5-8, 568 P.2d 342