Ake v. State

AKE, Appellant, Glen Burton Oklahoma, Appellee.

STATE of No. F-86-579. of Criminal Appeals Court of Oklahoma.

July 13, 1989. Box, Clowdus, Diane Oklahoma

Irvin R. City, appellant. for Gen., Henry, Atty. Susan H. Robert Gen., Dickerson, Atty. Depu- Asst. Stewart Div., Chief, City, for ty Criminal Oklahoma appellee.

OPINION

PARKS, Presiding Judge: Ake, tried

Appellant, Glen Burton counts of First jury and of two convicted 701.7) O.S.1981, (21 Degree Murder § Shooting to Kill Intent with two counts (21 O.S.1981, 652), County in Canadian § CRF-79-302, Court, Case Nos. District CRF-79-303, and CRF-79- CRF-79-304 Cannon, Dis- Joe before the Honorable punishment dur- Judge. jury set trict stage imprisonment life ing the second Degree of First Murder and each count for (200) years imprisonment tempts, two hundred she was told to return to dress and Shooting living room, bound, each count of with Intént to Kill. where she was Judgment imposed sentence gagged lay ac- and forced to face down cordingly. We affirm. Hatch then floor. covered the heads all Douglass family. Appellant four Appellant was first convicted of these sent Hatch family car and told the appeal filed direct crimes in 1980. He them, didn’t want to shoot but he didn’t and his convictions affirmed. Ake v. were they if say- know could be trusted. After (Okla.Crim.App.1983). ing, sorry “I’m talk,” but dead men don’t However, Supreme the United States once, Marilyn once, shot Brooks Richard Court, Oklahoma, in Ake v. twice and Leslie twice and fled from the 1087, 84 re- L.Ed.2d 53 house. Ap- and for a new trial. versed remanded pellant appeals the of this now convictions The two children to were able untie second trial. themselves drive and to the house of a nearby doctor. The sheriff’s office was began lеading The these facts to events summoned upon Doug- and arrival at the 15, 1979, appellant on while October and home, Marilyn Douglass lass and Richard co-defendant, Hatch, Steven were em- palm print appellant were dead. A was ployed drilling company. Early at that in found the house and the bullets recov- morning, appellant Claude Lucas drove and Douglass ered from the home identi- were Hatch On way, to work. the three cal to those appel- found at the site where stopped target appellant so could do some shooting practiced lant earlier in the day. work, practice. arriving appellant After at November, appellant and Hаtch were quit jobs and Hatch their and borrowed Craig, arrested in Colorado. Hatch was car, telling they him Lucas’ would return it wearing wedding ring Doug- of Richard During evening, later that afternoon. Appellant using lass. was a Visa credit appellant and Hatch drove to the rural belonging Marilyn card Douglass. Mrs. Douglass family. home of Richard Douglass’ wedding ring also was recov- bark, Leslie, Hearing dogs the twelve- ered. year daughter, yard old went to the front appellant and asked if he help. trial, needed He Before the second defense counsel asked for an address and she went inside to filed asking a motion appellant that be sent inup telephone Appellant look it book. testing regаrding competency and Hatch Initially, entered the house under the arriving stand trial. after pretext using phone, gain- and after Hospital, Eastern State appellant was entrance, ing guns pulled However, men incompetent. both found to be some family they later, told the would “blow their attending months doctors in- off” if they anything. heads tried formed the compe- court that was tent long to stand trial as as he remained Douglass, Marilyn Richard and who were medication, on his which consisted 1600. parts house, various were forced milligrams hearing of Thorazine. A living room, Brooks, into the as was their held to determine appellant’s competency. Marilyn son. and Brooks were led unanimously found rooms tо retrieve any money they had. competent to stand trial. They room, living were returned to the bound, gagged trial, where all but Leslie were appellant’s At sole to lay told face on the insanity down floor. of at the time of the offense. Pri- Leslie was then trial, appellant forced show requested hiding and Hatch the places” “secret provide psychia- of the trial court him access á family. Appellant phones tore the from prepare trist in order to his defense. The their connections. He granted request, then demanded Les- court and defense undress, lie and he and Hatch attempted to Dr. counsel contacted Hans Von Brau- rape chitsch, her. unsuccеssfully tried appel- who testified behalf of rape second time to her. After these at- lant. Dr. Von Brauchitsch testified that (Okla. Johnson very agitated upset a appellant was Henderson v. Crim.App.1988); days prior Appel- 1979. few to October (Okla.Crim.App.1987). quit his P.2d related to the doctor that he lant job of the that were because “enemies” length delay between the crime left after him. When work appellant’s approxi- second trial was thought enemies morning, imaginary mately years. Clearly, delay six neces- trap him. Dr. Brau- trying to Von inquiry into remaining sitates an appellant’s chitsch stated that the voices Johnson, factors. P.2d Douglass house head directed him to the There were several reasons for the them. and forced him shoot delay. Initially, we note that the did State bringing appellant trial, explained delay

Dr. also Von Brauchitsch suffering paranoid his first was held in 1980 and his appellant was year He second trial held within one of the schizophrenia. stated that while cured, symp- Supreme not be the United States Court’s reversal. disease itself could complain Clearly, appellant cannot of the of the disease could be treated with toms United States v. ‍​​‌‌‌‌‌​​‌​​​​‌​‌‌‌‌​​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‌​​‌​​‌​‌​‍However, delay when taken off the between trials medication. illness, Ewell, 121, 773, 777, 116, prescribed to 86 S.Ct. treat U.S. medications (1966), a lapses back into a delusional 15 L.Ed.2d 627 held that defen- appellant state, appellant terms demon dant obtains reversal of his conviction or what “the who explained may notwithstanding .delay appel- be retried world.” doctor proceedings. legal over incident to It is condition had deteriorated such lant’s delay Supreme Court’s appellant had the between past years, several and that appellant’s decision and retrial that con- schizophrenic between 1973 and been since However, cerns this Court. the record re- appellant asked whether could 1975. When delay largely was due to veals that such distinguish wrong day on the right from Appellant appellant’s mental condition. committed, Dr. Von that the crimes were undergo hospitalized times tо was several appellant did not Brauchitsch stated that testing competency. to evaluate wrong. right know by The next factor to be considered this error, assignment first of As his right appellant’s of to Court is assertion right alleges a of his appellant violation for speedy trial. A motion to dismiss a year delay due the six speedy a trial by filed speedy lack of a trial was his first and his second trial. between 12, 1985, on December which was counsel in first convicted Appellant was tried and (2) two months before trial. 1980, subsequent convictions were by ly overturned the United States Su degree prejudice The last factor is the of Oklahoma, in Ake urges preme by appellant. Appellant Court U.S. suffered delay 84 L.Ed.2d 53 trials 105 S.Ct. that the between the two retry began proceedings to his dete- prejudiced The State then his defense because of However, riorating of appellant, but the course said mental condition. light delays appel prejudice especially find in of proceedings, occurred due to no competent fact that was found mental condition. The second trial lant’s mentally due February, and was able to function was held Ap- for his illness. prescribed medication of To whether a violation determine the defense pellant present able right speedy to a trial has constitutional trial, and said defense was insanity at occurred, consistently ad- this Court has Accordingly, hampered delay. by Barker v. the test forth hered to set assignment merit. is without Wingo, that was incom- consid- also asserts L.Ed.2d 101 which As the basis for this length delay, petent to stand trial. of the reasons eration urges argument, that “his chron- delay, party’s assertion of his precluded trial, degree progressive mental disease” right speedy and the ic her a being competent at the time by party. him from suffered prejudice trial, Next, and because his condition appellant argues continues to that the trial deteriorate, appellant asserts he can court committed never constitutional error re fusing appoint points psychiatrist trial. a stand rebuttal the State to assist post-examination aid him in his compe given competency out tency hearing. support As for his hearing, parties asser presented wherein both ev- tion, appellant Oklahoma, relies on Ake v. regarding appellant’s idence competence. 470 U.S. at 105 S.Ct. at which compe- determined states as follows: tent to stand trial.

We therefore hold that when a defendant O.S.1981, 1175.4(B) Title 22 pre demonstrates to judge the trial § that his sanity competent sumes the at the time defendant and re of the offense is significant trial, quires prove him to factor at incompetence by the State must, minimum, at a convincing assure the evidence. Miller v. clear and defen- competent dant access psychiatrist (Okla.Crim.App. appropriate who will conduct an examina- 1988). The test used appel to determine evaluation, tion and preparation, assist competency lant’s is whether the accused presentation of the defense. This ability has sufficient to consult with his course, say, not to indigent lawyer and has a rational as well as actual defendant has a constitutional understanding proceedings against of the psychiatrist choose a personal lik- Beck him. ing or to receive funds to hire his own. (Okla.Crim.App.1981). post-examination Before the competency present case, appellant In hearing, appellant called filed a request written pоst-examination appointment four witnesses at psychiatrist aof to aid competency hearing, preparing him in hearing. three of these for the wit being opposed psychiatrists. motion, nesses State stating All three such doc that Ake provision tors testified he was limited to the competent, although psy- of a expressed chiatrist at opinion insanity two aid an de- appellant that alternative, fense. suffering paranoid the State assert- chronic schiz ed of Ake had been met that mandates ophrenia. The appel doctors testified that given because had been lant realized the nature access consequences competent a psychiatrist. The of his district importance crime and understood court appellant’s request, although denied of defense counsel and realized he needed the basis of the ruling is not cooperate contained attorneys. with his the record. record also reveals that under stood the judge, jury duties This yet Court has to to determine attorneys. Accordingly, appellant failed to whether the rationale of Ake extends to the proof. meet his burden of See Fox v. provision psychiatrist of a purposes for the State, 60, 65-66 (Okla.Crim.App. of competency hearing.1 a However, as- 1974). assignment This is suming arguendo without merit. that Ake an indi- ruling It opinion 461, 1. is this denied, writer's that the in Ake 237 Kan. 701 P.2d 909 cert. necessаrily any 1022, 575, must ‍​​‌‌‌‌‌​​‌​​​​‌​‌‌‌‌​​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‌​​‌​​‌​‌​‍be extended to include 474 U.S. 106 S.Ct. 88 L.Ed.2d 558 expert "necessary adequate (1985) Tison, which is for an (hypnosis de- expert); State v. 129 3006A(e). 526, fense.” See 18 U.S.C.A. (1981) (survey § This view analysis Ariz. 633 P.2d 335 forty consistent with the view expert). held in at least This view is also consistent with cur states, states, by legislative other as those either rent federal statutes. See 18 U.S.C.A. decision, judicial 3006A(e); Moss, enactment or have § acknowl- United States v. 544 F.2d 954 edged any expert "necessary (8th denied, Cir.1976), 1077, for an ade- cert. 429 U.S. 97 quate provided 822, (1977) defense” be (optometrist); will once the defen- S.Ct. 50 L.Ed.2d 797 requisite showing. Sanders, dant makes the (9th See Ake v. United States 459 v. F.2d 1001 Oklahoma, 4, Cir.1972) Bledsoe, 470 U.S. at 79 n. 105 (physician); S.Ct. at 1094 United States v. Martinez, n. 4. See also (8th Cir.1982), denied, State v. 734 P.2d 126 674 F.2d 647 cert. 459 (Colo.Ct.App.1986) exаminer); 1040, (polygraph 456, (1982) Estes 74 608 L.Ed.2d State, (Idaho 1986) (investigator (business ‍​​‌‌‌‌‌​​‌​​​​‌​‌‌‌‌​​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‌​​‌​​‌​‌​‍v. consultant); 135 Barger, United States v. analysis expert); and technical Haislip, (9th Cir.1982) (investigator). State v. 672 F.2d 772

465 competent only opportunity to obtain a provided access gent defendant competency (Emphasis impartial original) for his one.” competent psychiatrist made, Djadi, showing is hearing requisite if 506. 528 A.2d at As we stated in process Brown, appellant’s due indigent we believe “an defendant is not enti he had rights not insofar as violated public ‘shop tled funds to around’ until competent psychiatrists to several access gun’ a ‘hired finds with a favorable hearing. before the also De opinion.” 743 at P.2d State, Bolt 164, (Tex. v. 604 S.W.2d 165-66 competent рsychiatrist “[Ajccess to a State, Crim.App.1980); Pruett v. 287 Ark. examina appropriate will conduct an who 872, (1985); 697 S.W.2d 876 constitutionally mandate Bradford tion” does State, v. (Ala.Crim.App. 512 So.2d 135 given “right to choose appellant be 1987). Thus, contrary to appellant’s asser liking or to psychiatrist personal of his tion, Ake, process does not entitle due his own.” 470 receive funds to hire psychiatric expert sup to a state-funded Brown v. 1096; 105 U.S. at S.Ct. claim; rather, port process requires due (Okla.Crim.App. 137 P.2d competent 1987). no to a “[Tjhe has constitutional that he have access State Ake, obligation promote psy impartial 470 U.S. psychiatrist. battle between experts ‘by supplying defense require chiatriс at 1096. Because this S.Ct. met, assignment counsel with funds wherewith hunt ment was without experts may other who be will around for merit. defense, to ing, as for the offer witnesses error, appel- assignment As next ” opinion that accused’ wishes to lant the trial court erred claims that Djadi place jury. before the request denying Ap- for a continuance. (Md.App.1987), (quoting A.2d pellant states that a continuance was nec- Md.App. Swanson A.2d psychiatrist allow the essary to (1970)). was not examine while he under Appellant argues forced to “was of medication. In his motion the influence an proceed without the benefit of inde- ... court, appellant filed ex- with district to aid in pendent psychiatric examination plained it take two weeks to that would proof meeting of as to defen- the burden appellant from all medication and remove expert as he “no incompetency” dant’s had approximately three weeks to would take his contentions.” testimony support dosage. his to full restore medication Appellant, at 23. This argument Brief of grant a continu or denial of First, appellant is flawed for two reasons. of the trial ance is the discretion within competent psychia- by examined three discretion, an abuse of court and absent All examinations trists. three conducted trial court’s this will not disturb the Court determined regarding competency State, P.2d 279 v. 723 Walker ruling. Although competent to stand trial. denied, 479 (Okla.Crim.App.1986), cert. employed by of two the doctors were 93 L.Ed.2d 600 107 S.Ct. hospital, one was an state mental doctor Walker, asked for the defendant In “independent” he was em- psychiatrist as in order to allow defense a continuance private, non-profit community ployed by a review medi psychiatrist sufficient time to Second, do not mental center.2 "we health was refused opinion, cal The continuance read Ake mandating a favorable records. State, Djadi P.2d state-funded interpret in psychiatrists v. 528 Ake to mandate 2. This Court does not prosecu- partisans of the are "not "independent" psychiatrist the sense that an in State, paid by any though psychiatrist. their fee is appellant Instead, tion is to choose the allowed assigned be- is counsel for defense than that if an examination is more holden Ake prosecution merely is competent because he by to the necessary, it shall be conducted State_ brief, compensated by certain psychiatrist. appel- [I]t impartial implies In ... and lant by state fund- an is evaluated that once ed, accused all three doctors were because psychiatrists, funds, impartial competent opinions compensated with state any, duty, In the if ends...." Appellant, constitutional present petent psychiatrists. at 23. How- were biased. of Brief case, ever, transcriрts appellant had to three com- scrutinizing access after record, As is no of bias. stated there indication court, by upheld many years trial Court tion after the crime. below, ruling pointing argues inquiry out that the necessary doctor’s that such testimony he had time in “prejudice jurors indicated sufficient determine did who not Similarly, retrospective in the such diagnoses medical records. believe review could case, accomplished.” Appellant, present Dr. Von Brauchitsch was Brief of faced repeatedly asked what difficulties he 35. he ex- diagnosing appellant. Although in The manner and of extent exami plained many problems he encoun- of prospective jurors nаtion largely rests tered, doctor mentioned that his never and, the sound discretion of the trial court by the fact that examination was hindered discretion, absent a clear abuse the trial medication. Further- appellant was on ruling not be disturbed. Bro court’s will more, Dr. Von Brauchitsch testified was State, gie (Okla.Crim. P.2d diagnosis make a and was confident able to App.1985). purpose “The of voir dire ex facts, diagnosis. light In these amination is to ascertain whether there are say the trial court abused its discre- cannot grounds challenge for either actual or the continuance. denying tion in permit implied intelligent bias and to Walker, P.2d at peremptory Jones challenges.” exercise Nеxt, appellant claims he should not (Okla.Crim.App. P.2d during have been shackled Be trial. 1973). “definite, Because there is no un trial, questioned judge fore yielding regarding rule” the extent voir counsel as to whether re should examination, dire “there is no abuse of protect main shackled others question discretion so as the voir dire agreed in the courtroom. Defense counsel ing enough broad afford the shackled, should remain but influence, free of outside bias or precautions asked that be taken to ensure personal interest.” Manning v. shackles viewed P.2d 329 (Okla.Crim.App.1981). jurors. Defense no counsel concedes that case, present an exhaustive voir juror leg reported seеing the shackles. dire was It conducted. occurred over a In Davis v. 209 period days of three and included more (Okla.Crim.App.1985),this Court reiterated (700) pages than seven hundred tran- the rule that no shall defendant be tried script. The trial court was lenient in the handcuffs or shackles unless he waives his examination, scope and extent of and we right. However, present case, appel- in the no attorneys have doubt the were able to affirmatively lant waived his to be intelligent make choices as to their chal- that, free of shackles. We also note on all lenges. appellant attempted ques- When occasions, appellant brought into the prospective jurоrs regarding tion jury courtroom before the and taken out opinions possibility diagnosing as to the of jury after the had been removed. Defense many years an accused’s mental condition by prevent cloth table was covered a the crime, the following exchange after the Thus, jury viewing the shackles. occurred: find error. no MR. BOX: We would like to able to be Appellant also the claims fact he they ask them if would consider that during was shackled trial indicates he was testimony though even the examination However, incompetent. as we determined years was made some seven after the above, sup- sufficient evidence existed to commission the [of offense.] port jury’s of competen- the determination THE you COURT: I’ll let them ask will cy. assignment This is without merit. they of testimony consider all his and give proposition, appellant urges weight As his next it full and they credit that to, the it’s going error occurred when trial court deem entitled but I’m not inquiry you refused to allow into specifically the beliefs of let ask them—that would prospective jurors regarding possibility asking the like if guy be him this testifies determining of an accused’s condi- sky purple mental that the day everyday all requirements guidelines as certain and are it or not. You can’t do you will believe specifical- going you to let followed: that. I’m not testify to such

ly say if a witness will Opinion of Testimony by 2703. Bases § it, you ask consider but can will you will Expеrts they believe— or in the particular The facts data case I ask him if be- May upon MR. BOX: expert opinion an an which bases or I if may him he believes it’s ask may perceived by inference be those or lieves— possible diag- make psychiatrist to him or made know before the hear- years after the commission seven nosis ing. type reasonably relied of If of a crime? upon experts particular by in the field No, say- I’m that’s what opinions upon THE in or forming COURT: inferences you going let do. I’ll let ing not I’m or need subject, the data facts psychiatrist you listen you ask will be admissible in evidence. give it testimony and what all Disclosure of Facts or Data Un- § credit, you listen weight will Expert Opinion derlying advance, it judge in but judge it and not expert in may testify terms of going you specifically pin- let I’m not opinion give or inference reasons this, things, you point will believe will prior therefor without disclosure of that, you consider this. you will believe data, unless the underlying facts argue in it all. You can Consider expert otherwise. The court closing argument not now. your but Ob- required to disclose the under- may be jection sustained. lying or data cross-examina- facts Clearly, added) counsel was (Emphasis tion. regarding credibility asking questions 2703 and which are identical Sections judge expert of an witness. The trial 703 and 705 of Federal Sections credibility is an analysis in correct Evidence, scope Rules of broadened argued closing statements as issue to be longer expert opinions. It is no permissible fact for and is question it by required that all data relied on the ex during proceedings. not relevant voir dire evidence, “so into pert admissible be See Curtis by reasonably relied on type as it is ‘of a Hence, (Okla.Crim.App.1988). the trial forming experts field particular in the ” in re court did not abuse its discretion subject.’ upon opinions or inferences ques fusing particular to allow this line of Lawson, F.2d United States tioning voir dire examination. Cir.1981), denied, (7th 454 U.S. cert. Next, submits that reversible 71 L.Ed.2d when the trial court refused error occurred However, evidence is such admission state Dr. Yon Brauchitsch to allow of the trial court and discretion within thе diagnoses physicians which other admitted, accompanied by a if be should reaching opinion upon relied him clarify that the limiting jury instruction sanity regarding appellant’s the time of used to evaluate only evidence can argues “that the crime. The State expert’s opin testifying credibility of the diagnoses professionals consti- other L.Whinery, ion. to the Guide Okla such, and, properly hearsay as (1985). tuted Code, 245, [were] 255 homa Evidence from evidence.” excluded bar, the defense In the case at expert attempted relate to the the argument The is incorrect State’s O.S.1981, diagnoses professionals which al other 12 2703 and 2705 because §§ opinion.3 The forming pros admission оf facts and data relied low for the was held objected, and a conference so ecutor ‍​​‌‌‌‌‌​​‌​​​​‌​‌‌‌‌​​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‌​​‌​​‌​‌​‍which are not otherwise admissible customarily judicial psychiatrists use Although never notice that 3. Dr. Von Brauchitsch stated by diagnosis. reports tests made other doctors to make a that the and such information F,2d type reasonably upon,” (n. Lawson, 7). is “of the relied as was 653 at 302 2703, may by required Court take Section 468 Brauchitsch, diagnoses At the conclusion of this Dr. the

at the bench. Von oth- conference, agreed counsel that defense He diagnoses er doctors. claimed that the profes- diagnoses the of these actual other “underlying as were admissible facts and the and trial siоnals were not admissible upon by data” relied Dr. Von Brauchitsch. judge such evidence was not ruled that judge The trial refused to allow such testi- testimony of properly through the elicited stating mony, that if the defendant wanted judge made it Dr. Von Brauchitsch. place testimony jury, before the it doctors had sub- clear that other been the necessary would the call doctors as testify as to poenaed be called to and could witnesses order to allow cross-examina- Later, during the redirect diagnoses. their important that, tion. Also is fact the dur- Brauchitsch, Dr. Von the examination of ing examination, redirect defense counsel again. In problem response to a arose aрpellant was able elicit the fact that counsel, question by defense Dr. Von Brau- repeatedly diagnosed had mentally been as appellant chitsch testified had been ill. diagnosed by psychiatrist as men- another urges diagnoses the 1980, and tally ill in that the mental illness the other doctors would have boosted the prior least six had existed for at months credibility Brauchitsch, of Dr. Von al diagnosis. the When asked doctor which though it could not for be used substantive diagnosis, prosecutor reached this the ob- Edwards, evidence. See State v. 63 N.C. jected. judge again The trial addressed 737, 160, (1983). App. 306 S.E.2d 161 How question explained that con- his main ever, psychiatrist because inability cern was the to cross-еxamine testify tests, regarding reports, able to all opinions. these other doctors as their doctors, by and records made the other Although admission of facts data because testified that had upon expert permissible relied by diagnosed mentally 1980, ill in been 2705, under Section 2703 and the admission probative believe value such evi of such evidence remains within the sound dence diminished. While Whinery, trial discretion of the court. See crucial, claims the evidence we do 255; supra, 245, Scott v. agree insofar as could have called (Okla.Crim.App.1988); 760 Clark testify regarding these various doctors to 95 800 Okla.Cr. diagnoses opinions. See United (1952). Furman, Mich.App. 158 State Fountain, (7th F.2d (1987), States v. 840 517 Michigan 246 N.W.2d Cir.1987). Thus, say we cаnnot Appeals Court of dealt with a similar issue. defendant, charged degree in refusing with first abused its discretion court murder, insanity. the defense of asserted Dyer, this evidence. See United States v. trial, During defendant moved admit (11th Cir.1985)(trial 752 F.2d court videotaped interview of the defendant opinion of a held inadmissible doctor expert psychiatrist. the defense He ar- it although upon by testify was relied gued videotape that the should be admitted ing expert). underlying facts and data re- show the psychiatrist. upon by lied The trial assertion, As his next admission, ruling court denied its that the claims that his have confession should been tape testify would the defendant to allow suppressed as it violation of was in being subject to withоut oath or cross-ex- sup sixth amendment to counsel. As appeal, judge’s amination. On the trial rul- claims, port appellant primarily re ing upheld expert “since the defense Moulton, 159, 106 lies on Maine v. 474 U.S. testify was able to about the factual S.Ct. L.Ed.2d 481 and Michi professional opinion,” thereby of his bases Jackson, gan v. diminishing probative value vid- 1404, L.Ed.2d The State eo. Id. N.W.2d appellant’s argument by pointing refutes Likewise, case, the in the instant defendant out that initiated conversation sought admit, through testimony to the right and his to counsel. waived 436, 459, 2616, 2629-30, case, record reveals U.S. present In the the that, arraignment, appellant L.Ed.2d prior his to and Shields

indicated to Officers Stedman examination, do After close we not be- the to talk to them about that he wished holding in Moulton the is determina- lieve to case, prefer he Douglass but that would present reasoning of the case. The tive arraigned March Appellant was wait. Moulton inapplicable in- insofar the appointed. La- counsel police agent stant case does not a involve afternoon, contacted Of- ter that identity appel- whose was concealed cigarettes. and asked ficer Stedman Instead, appellant lant. knew that Officers day, appellant p.m. same Around 9:00 enforcement Stedman and Shields were law Officer Stedman about speak with asked Furthermore, unlike Moulton officials. “he Douglass case because had some the given the not the wherein defendant was get his things mind off on his wanted opportunity ask for the counsel before 1153) (Tr. Officers Stedman and chest.” “interrogation” began, appellant had the appellant’s notified of re- were Shields counsel, speak in- opportunity to with but county jail and went the where quest, stead, the summoned officers told being The appellant was held. transcribed things get he had “he them some wanted appellant was reveals that conversation Thus, his chest.” some of the off while taped. being the conversation was aware language in Moulton supports appel- broad rights, He was informed his told theory, ruling of lant’s the rаtionale and he wanted talk with them. officers dispositive. case not then asked him to tell them what officers Michigan v. Appellant also relies on happened on October Jackson, 475 U.S. at 106 S.Ct. at leading up epi- narrated the events proposition “any resumption in- for the home, explained Douglass sode at the terrogation suspect a after asserts murders, in the and continued involvement proscribed it is right to counsel” is “unless following the mur- by revealing the events suspect, police first initiate who time, During this the officers asked ders. Appellant, contact.” at 44. Brief only question. After had one agree appellant’s interpreta- with While story, the then asked finished his officers Jackson, point we must out tion had questions regarding the information reasoning. Jack- appellant’s fatal flaw ap- lasted for given them. discussion interroga- son proscribes “police initiatefd] forty-five min- proximately one hour and assertion ... of tion after defendant’s utes. case, right to counsel.” Id. In the instant background, we turn With this factual by ask- appellant initiated the conversation In Maine by appellant. authority cited speak police the officers. The ing to with Moulton, v. 106 S.Ct. at 474 U.S. at appel- with any not initiate conversation did Supreme Court held the United States arraignment and there is no lant after his right sixth amendment defendant’s attempting officers indication the an undercov- to counsel violated when appellant’s right to counsel. circumvent co-defendant, informant, recorded er also Accordingly, determinative Jackson is not de- himself and the conversations between of this issue. request police. “By con- fendant at the consider We next whether agent cealing an the fact Colson to counsel the con waived police Moulton the of the denied Officers Stedman and versation with counsel and opportunity to consult with rule, general a defendant As a Shields. of counsel thus denied him assistance right to after counsel can waive his counsel Id. guaranteed by the Sixth Amendment.” ques appointed been and consent to decision, has empha- thе Court reaching v. P.2d Reid tioning. investigatory tech- sized “undercover” on other (Okla.Crim.App.1971), modified rela- niques employed police and the (Okla. P.2d 915 Pate grounds, tionship the informant and between Wilson, Crim.App.1973). Although Moulton defendant. See Kuhlmann general exceptions century. Jackson are to this rule Oregon, ‍​​‌‌‌‌‌​​‌​​​​‌​‌‌‌‌​​​‌‌‌‌‌​‌​​‌‌‌‌‌‌‌​​‌​​‌​‌​‍Leland v. 343 U.S. waiver, rule remains of intact insofar 96 L.E. 1302 excep (1952). as we have determined that these see no depart We reason to applicable present in the Brewer, Court, tions are not case. this rule. In approving this counsel, right In order to waive his presumption rebuttable sanity, of ex- voluntarily intelligent defendant must plained that Oklahoma Jury In- Uniform ly relinquish right privilege. a known (OUJI-CR) struction —Criminal No. 730 Arizona, 482, 101 451 U.S. Edwards v. (1981) anwas incorrect of statement law as 1880, 1884, (1981). S.Ct. 68 L.Ed.2d deprived it the State of a presumption legally which was correct. Similar to the case at bar is Cur State, (Okla.Crim.App. purpose tiss v. 692 P.2d jury instructions is to 1984), place wherein the defendant asserted he jury before the a correct and full was denied assistance counsel. Al applicable statement of the law which is though agreed this Court that the defen the case. See Rounds v. attached, right had dant’s to counsel we 283, Hence, 288 (Okla.Crim.App.1984). held had the defendant waived this complete statement of the law right. hearing An in camera revealed that jury be informed of the pre- rebuttable rights, of his was advised indi sumption sanity. We thеrefore affirm rights, cated he understood those and was ruling our Brewer. See Morris v. attorney present asked if he wanted (Okla.Crim.App.1988). replied negative. which Under assignment This is without merit. circumstances, these we determined the de above, For the reasons mentioned right fendant had waived his to counsel judgment and sentence is AFFIRMED. Likewise, questioning. in the present case, appellant initiated the contact LANE, V.P.J., and BUSSEY and officers, police with told them he wanted to LUMPKIN, JJ., concur. case, Douglass discuss the was advised of BRETT, J., rights specially constitutional and indicated he concurs. rights. understood his He was then asked BRETT, Judge, specially concurring. “having rights you these in mind do wish decision, IWhile concur in I do not

to talk with us now?” to which subscribe to the author’s comments in foot- responded “yes, Accordingly, sir.” we find note I. Each case must be considered on that appellant waived his to have its own merits as to the extent of technical present during counsel the interview. This assistance that should be allowed. assignment is merit. without Finally, assignment in his last

error, appellant claims the State’s burden proof improperly shifted given regarding sanity. Spe instructions cifically, argues the State was relieved proving requisite intent because the GUY, Jr., Appellant, Ulus presumed was instructed that the law him Although to be sane. this Court re cently resolved this issue Brewer v. Oklahoma, Appellee. STATE of (Okla.Crim.App.1986), 718 P.2d 354 No. F-85-722. denied, 871, 107 cert. 479 S.Ct. L.Ed.2d appellant urges Appeals us to Court of Criminal of Oklahoma. holding regarding reconsider our the validi July ty of Jury Oklahoma Instruc Uniform (OUJI-CR) tion —Criminal No. 730 The rule “every pre- man is to be

sumed to be sane” has endured for over a

Case Details

Case Name: Ake v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jul 13, 1989

Citation: 778 P.2d 460

Docket Number: F-86-579

Court Abbreviation: Okla. Crim. App.