Ferguson v. State

BUSSEY, Judge,

specially concurring:

Lawton police officers obtained information from Henry Southwood, an informant, that marijuana could be obtained from Don Ferguson. With the informant’s consent, the police officers taped a conversation between Southwood and Ferguson, arranging for Ferguson to sell several pounds of marijuana to Southwood. Several officers accompanied Southwood to his residence where the sale was to be consummated. Officer Griffin searched Southwood and the residence prior to the arrival of Ferguson and established that no marijuana was present. Griffin then concealed himself in a closet from which he was able to hear the transaction between Southwood and the appellant.

When the appellant left the residence Griffin contacted the officers waiting outside and informed them that the sale had been completed. Ferguson was then arrested outside the residence. Money provided by the police to Southwood was found in the appellant’s possession as well as additional marijuana in a green canvas bag which Ferguson had dropped.

The defendant was charged and convicted in Comanche County District Court, Case No. CRF-79-383, of Unlawful Delivery of Marijuana, which was affirmed by this Court on April 22, 1982. In that case the defendant testified that Southwood had left the green canvas bag and its contents at his apartment for purposes of storage. He further testified that he did not know the contents of the bag until he took it to Southwood’s residence, upon the latter’s request, and witnessed Southwood remove scales and marijuana therefrom. The defendant further testified that he went into the living room and smoked a cigarette. As a favor to Southwood he agreed to take the bag and a sum of money to a mutual acquaintance named Mendenhall. He acknowledged that immediately upon leaving Southwood’s residence he was arrested and had money on his person and marijuana was seized from the green canvas bag. He maintained that he had no intent to possess, sell or deliver marijuana.

In the instant case he admitted storing the bag for Southwood, taking it to the latter’s residence and dropping it when he was arrested. He denied any knowledge that marijuana was in the bag, and stated that the bag and its contents were South-wood’s personal property and that he was the innocent victim of a “frame-up.”

Since his theory of defense in both instances was that he was an innocent victim of a “frame-up” and was merely doing a favor for a friend, no objection was interposed to the introduction of the marijuana seized in the instant case, nor did he raise the issue in his motion for new trial. “We have consistently held that if no specific objection is made to the admission of evidence by the trial court, counsel will not be heard to raise such objection for the first time on appeal.” Beeks v. State, 563 P.2d 653 (Okl.Cr.1977); Thacker v. State, 303 P.2d 448, 449 (Okl.Cr.1956); and 12 O.S. Supp.1981, § 2104.¹

Defendant’s second, third and fourth assignments of error are also raised for the first time on appeal by the appellate public defender and are properly disposed of by Judge Cornish’s opinion.

1 . 12 O.S.Supp.1981, § 2104. Rulings on Evidence

A. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected, and:

1. If the ruling is one admitting evidence, a timely ofjection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

2. If the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.