Michael Lee Vickery v State Of Oklahoma

M-2002-1146

Filed: Jul. 22, 2003

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Michael Lee Vickery appealed his conviction for unlawful possession of marijuana, possession of paraphernalia, and driving under suspension. His convictions and sentence included one year in jail, with the last six months of each sentence suspended. Judge Charles A. Johnson dissented regarding the modification of the sentence.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT, by a vote of 5 - 0, that Appellant's Judgments and Sentences in Cleveland County District Court, Case No. CF-2001-359, are AFFIRMED. IT IS THE FURTHER ORDER OF THIS COURT, by a vote of 3 - 2, that Appellant's sentences are modified to three (3) months incarceration, with credit to be given for time served. IT IS so ORDERED.

Issues

• Was there judicial bias against the Appellant by the trial judge?
• Did the Appellant fail to raise a timely objection regarding the trial judge's comments during the trial?
• Was the trial judge biased in the assessment of punishment?
• Did the arresting officer possess the qualifications to testify as an expert in the identification of marijuana?
• Did the State meet its burden of establishing the reliability and validity of the field test conducted by the arresting officer?
• Was the Appellant's traffic stop based on probable cause or a subterfuge to search his vehicle?

Findings

• the court erred in failing to find judicial bias due to Appellant's waiver of recusal
• the court erred in finding no fundamental error regarding alleged bias in assessing punishment
• the court did not err in allowing Deputy Houseman to testify about the identification of marijuana
• the court found no error regarding the reliability of the field test due to waiver of objection
• the court rejected Appellant's argument regarding lack of probable cause for the traffic stop
• Appellant's Judgments and Sentences are affirmed
• Appellant's sentences are modified to three months incarceration, with credit for time served

M-2002-1146

Jul. 22, 2003

Michael Lee Vickery

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

Appellant was convicted in a non-jury trial in Cleveland County District Court, before the Honorable Tom A. Lucas, District Judge, Case No. CF-2001-359, of Count II, Unlawful Possession of Marijuana, Count III, Possession of Paraphernalia, and Count IV, Driving Under Suspension. Appellant was sentenced to one (1) year incarceration in the county jail, with all but the first six (6) months suspended on each count. Pursuant to Rule 11.2(A)(1), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003), this case was automatically assigned to the Accelerated Docket of this Court. Oral argument was heard on July 10, 2003. At the conclusion of oral argument, the parties were advised of the decision of this Court.

Appellant raises six propositions of error on appeal. In the first, Appellant contends the trial judge was not impartial toward him. However, a review of the record reveals Appellant never requested the recusal of Judge Lucas, nor alleged any bias on the part of Judge Lucas until this case was presented for appeal. Appellant’s failure to request recusal at the District Court level waives the issue of judicial bias for purposes of appeal, restricting this Court’s review to plain error. See Nolte v. State, 1994 OK CR 81, 26, 892 P.2d 638, 645. We find no plain error in this record.

In his second proposition of error, Appellant contends the trial judge was biased against him and had a fixed opinion as to his guilt. Once again, a review of the record reveals no contemporaneous objection was made by Appellant at trial regarding the comment he now complains about on appeal. That lack of objection waives all but plain error, of which we find none. See Slaughter v. State, 1997 OK CR 78, 950 P.2d 839, 864.

In his third assignment of error, Appellant contends the trial judge was biased against him in the matter of assessment of punishment. Again, Appellant failed to enter a timely objection regarding the matter he now complains about on appeal, and we find no fundamental error.

In his fourth assignment of error, Appellant asserts the arresting officer did not possess the qualifications to testify as an expert in the identification of marijuana. However, this Court has long held that evidence a substance is marijuana may be made by the testimony of a police officer whose opinion is based upon training and expertise gained through experience. See McCoy v. State, 1985 OK CR 49, 699 P.2d 663. Because Deputy Houseman’s testimony was based on his training and expertise, we find no error.

In his fifth assignment of error, Appellant asserts the State failed to meet its burden of establishing the scientific principles associated with the field test conducted by Deputy Houseman were reliable and valid. Again, no objection was entered by Appellant at trial regarding Houseman’s testimony about the field test. Such failure to object waives all but fundamental error. See Armstrong v. State, 1991 OK CR 34, 811 P.2d 3. We find no error.

In his final proposition of error, Appellant asserts his traffic stop was not based on probable cause, but rather, was a subterfuge to search his vehicle. Appellant’s argument of subterfuge is without legal merit, as such has been explicitly approved by the United States Supreme Court. See Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.Ed.2d 89. Further, we find the record establishes probable cause was present.

IT IS THEREFORE THE ORDER OF THIS COURT, by a vote of 5 – 0, that Appellant’s Judgments and Sentences in Cleveland County District Court, Case No. CF-2001-359, are AFFIRMED. IT IS THE FURTHER ORDER OF THIS COURT, by a vote of 3 – 2, that Appellant’s sentences are modified to three (3) months incarceration, with credit to be given for time served. IT IS so ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 22 day of July, 2003.

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Footnotes:

1. See Nolte v. State, 1994 OK CR 81, ¶ 26, 892 P.2d 638, 645.
2. See Slaughter v. State, 1997 OK CR 78, 950 P.2d 839, 864.
3. See McCoy v. State, 1985 OK CR 49, 699 P.2d 663.
4. See Armstrong v. State, 1991 OK CR 34, 811 P.2d 3.
5. See Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.Ed.2d 89.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 420 (2011) - Unlawful Possession of Marijuana
• Okla. Stat. tit. 63 § 2-101 (2011) - Possession of Paraphernalia
• Okla. Stat. tit. 47 § 6-303 (2011) - Driving Under Suspension
• Okla. Stat. tit. 22 § 11.2(A)(1) (2011) - Accelerated Docket
• Okla. Stat. tit. 21 § 701.8 (2011) - Judicial Recusal
• Okla. Stat. tit. 22 § 1083 (2011) - Plain Error
• Okla. Stat. tit. 22 § 1086 (2011) - Fundamental Error
• Okla. Stat. tit. 63 § 1-244 (2011) - Failure to Meet Burden of Proof
• Okla. Stat. tit. 21 § 761 (2011) - Traffic Stops and Probable Cause

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:

• Nolte v. State, 1994 OK CR 81, I 26, 892 P.2d 638, 645
• Slaughter v. State, 1997 OK CR 78, 950 P.2d 839, 864
• McCoy v. State, 1985 OK CR 49, 699 P.2d 663
• Armstrong v. State, 1991 OK CR 34, 811 P.2d 3