*1 COX, Venory Appellant,
v. The STATE of F-78-55, Nos. F-78-56. Jordan, Hurley Defender, T. Public Rob- Court of Criminal Ravitz, ert A. Defender, First Asst. Public Oklahoma May County, City, ap- Oklahoma for
pellant. Cartwright, Gen., Atty.
Jan Eric Susan Talbot, Atty. Gen., Chief, Asst. Division, Appellate City, ap- Oklahoma for pellee.
OPINION CORNISH, Judge: Cox, appellant was convicted Degree
Murder in the First and sentenced to death. the appellant obtained divorce wife, Cox,
from his twenty- Pearl Mae after years marriage. August 14, five 1977,he went to his ex-wife’s residence and observed her in bed with her boyfriend, Mr. immediately Sanders. left the house pistol and retrieved a from his car. He returned minutes later and shot and killed boyfriend, his ex-wife they and her while lay asleep in bed. appellant argues he process equal protection by
denied due
funds
court’s refusal to
expert
own
witnesses.
United States
Baldi,
ex rel.
v.
Smith
Oklahoma statutes not authorize the dis employ bursement state funds for the expert witnesses the benefit indigent Eddings defendants. See - U.S. -, (Okl.Cr.1980); (reversed (1982) 102 S.Ct. grounds). other Dennis Therefore, (Okl.Cr.1977). we find that the trial court did not err in appellant’s request for funds. *2 1078 State, 945, argues the trial court erred In Wimberli v. 536
Cox next that 950 application in for com- refusing to (Okl.Cr.1975), this Court stated that “the hospital state for examination mitment to a trial court has to be reputable advised from of his mental condition. and observation sources that is insane under 20,1977, defense counsel filed On December oath.” This Court further held in Wimberli application an commitment Central that: application This was over- Hospital. State ‘. .. while the court cannot arbitrari- act 1978, 9, January day ruled. the of the matter, ly it has a to look to in the trial, request defense counsel renewed his information, of the the source and come to have Cox committed to Central State conclusion, proper to a from all facts the Hospital psychiatrist appointed or to have a circumstances, and whether there is a appellant to determine whether the sanity doubt in his mind as to the of the shooting, pres- sane at the time of the and ” State, (Citing defendant. . . Johnson ently competent to trial. At a stand hear- 370, (1942).) 121 73 Okl.Cr. P.2d 625 trial, ing prior testified, defense counsel oath, opinion under that in his Cox was not State, cites Franklin v. 509 State competent appellant’s to stand trial. (Okl.Cr.1973), support P.2d 161 its con- application again for commitment was sum- that tention defense counsel’s unsubstanti- Missouri, marily Drope denied. See 420 opinion ated is not sufficient to create a 896, 95 43 U.S. S.Ct. L.Ed.2d 103 legal Franklin, sanity. doubt as to Cox’ In (1975); States, Dusky v. United 362 however, we held that a defense counsel’s (1960). 80 opinion present to the sanity as defendant’s upon suspi- must be based more than mere
The statutory provisions granting fact, the cion. power trial court the the Franklin Court asserted: to commit a de O.S.1971, for examination are 22 only “Had the trial court the statement O.S.1971, (repealed, § § of his now O.S.Supp.1980, 1175.1-1175.8). § sanity, the defendant’s after several con provides Section 1171 that: nothing ferences with him and else ... “If any person is held in confinement agree this would Court that because of charges, criminal or if he has court would have been remiss in not charges pending likely criminal or to be granting the defendant a trial to deter against him, filed or if been he has taken present sanity.” supra (Cit mine at 163 custody into because of a criminal act or ing (Okl.Cr. French v. acts, prior to the of an indict- 1964). (emphasis added). prelimi- or information for trial or In Johnson v. 73 Okl.Cr. nary hearing, a doubt arises as to his presented P.2d 625 this Court was present sanity, either such individual or with a similar factual situation. In Johnson attorney district applica- make request the defendant made a to the trial tion to the District Court for an order court to obtain a mental examination. The committing such individual to a state hos- request. trial court denied the The trial pital within Department of Mental based the denial on his ob- Health for observation and examination servation of the period a defendant. Johnson v. sixty (60) not to exceed days. State, supra, this .. .” Court stated: provides Section 1172 “If that: there exists in the mind of the court a defendant, sanity doubt as to the of the “In the event the District Court expressed statute, as in the means if the mines that there is a doubt as to the present court been sanity individual, reputable has advised from a he shall is, be ordered source —that committed to a a statement Hospital made to and proceedings against by person persons, such court credible or individual shall be suspended further pending person under oath that insane —a report of the doctors of hospital.” judicial said doubt is raised. While there is discretion left the court to decision determine as to whether to recommend life whether there exists in the mind sentence or a sentence of death. doubt, nevertheless such discre- Therefore, we find par- that these exercised, arbitrarily tion should not ticular circumstances court abused positive and its declaration and state- its discretion appellant ment, indicated, above the de- opportunity *3 examined at the state is necessarily presents insane a hospital. investigation. condition REVERSED REMANDED a for new look the source of informa- trial. tion, motive, etc., opportunity, it, party making but if the court shall be entitled to denies the inquiry by jury, it competency must do so mination of his under 22 O.S. excluding circumstances all doubt of Supp.1980, 1175.1-1175.8. §§ of truthfulness the declaration that (citing is insane. Id. Mar- BUSSEY, Judge, dissents: shall [*] (1909)). v. Territory, [*] [*] Okl.Cr. [*] [*] [*] P. reverse, I would remand this trial court for a determination of the issue I must respectfully dissent. Rather than case “. .. We are judge satisfied that the trial of competency Cox’s mental at the time of personally had no doubt of defendant’s trial, pursuant to provisions of 22 O.S. yet affidavit, sanity; the motion to- 1175.8, Supp.1981, 1175.1thru and direct §§ gether counsel, with the statement are findings that the of fact and conclusions of sufficient to legally raise a doubt.” law be forwarded this Court in order may properly that we dispose this issue. case, In this the trial court has the state- ments of defense his distinguish Cox was unable to
between wrong. did any not offer evidence to refute defense opinion. counsel’s Defense counsel based his testimony sworn obser- during
vations made several interviews with Cox. Billy Ray MOORE, Appellant, compel- The rule in more Johnson even ling ain case where the defendant is sub- The STATE ject to the penalty, death here. A miti- gating jury circumstance for the to consider O-80-507. No.
is whether murder “the was committed Court of while the defendant was under the influ- ence of extreme mental or emotional distur- 6,May bance.” re- quired, independent of jury’s determi-
nation, to consider whether the defendant’s
physical or special mental condition calls for
consideration.
Even the defendant is determined to be legally sane op- he should be afforded the
portunity to introduce evidence his men-
tal punishment condition at stage. Psy- chiatric testimony the defendant’s men-
tal or emotional state at the time of the
killing may very likely jury’s influence