Doyle v. State

order, previous deter- alle- with the trial court’s support the sufficient to is not record parties agreement time. of the Appellant at this mine whether gations of duty affirmative limited the to take State’s must be finds the convictions The Court prior convictions outside action to discover the State the failure of due to reversed prior County Tillman and establish how the form impeachment evidence provide ultimately discovered. convictions were who testi- of witnesses prior convictions findings fact and conclu- Without these However, record in fied for State. if cannot determine sions of law this Court the alle- to sustain case is insufficient this comply did or did not State the State Appellants that gations of the defined the trial duty to disclose as prior convictions known failed to disclose Compel the Motion- to court when the trial compliance the witnesses. granted. Motion Appellant’s granting court’s that Calvin Compel the disclosed State The facts of this case an issue rus- of cattle Nunley had been convicted previously by not addressed Courts. does County. The record tling in Tillman prosecutor That issue is a has a whether required the if the trial court not reveal duty exculpatory evidence to “search” for a check on complete a records State for the defendant. The United States Su basis, merely nationwide or statewide or preme duty has addressed the of a Court actually known prior convictions disclose exculpatory prosecutor to disclose known handling attorney by the assistant district defendant, regardless evidence to mo- single reference to the the case. The made, request if type request or no granted by agree- that it was tion indicated 667, 105 Bagley, United States v. 473 U.S. record is also parties. ment of the The (1985), and Unit 87 L.Ed.2d 481 S.Ct. the assistant district void on what actions Agurs, ed States v. 96 S.Ct. U.S. if the attorney actually took to discover (1976). However, 49 L.Ed.2d 342 prior convictions. The witnesses did have requirement place these cases not on do copies judg- Appellants produced have and disclose un prosecutor to seek out County Stephens ments and sentences from fully exculpatory evidence. To ad known Nunley County naming Calvin and Kiowa presented in this case the dress the issues defendant; Texas, County, as the Harris to conduct an trial court must be directed defendant; naming Richard Lamb complete evidentiary hearing provide Colorado, naming Earl County, Prowers upon will be factual which Court basis However, the Wayne Melton as defendant. a decision. able to render reveal how these doc- record does above, I must set forth For reasons uments were discovered. this time. decision at dissent to the Court’s questions deprive the These unanswered evidentiary basis it needs to Court of the presented. the issues Rather than

decide assumptions which are deciding the case on allegations made drawn from are not addressed in Appellants, but which evidentiary portion of the record DOYLE, Appellant, Lee David I would remand the presented appeal, on Tillman the District Coun- case to Court

ty for the District Court to with directions Oklahoma, Appellee. STATE evidentiary hearing. trial conduct No. F-86-356. evidence and enter court could then receive findings of fact setting forth Appeals an order of Oklahoma. of Criminal Court would determine conclusions of law which Dec. required to take what actions State prior and disclose convictions of to discover testify listed to for the

witnesses who were complied the State conclude whether Purcell, Appellate Public

Thomas Asst. Defender, Norman, appellant. for Gen., Henry, Atty. H. Robert Sandra. Howard, Gen., Atty. Oklahoma D. Asst. City, appellee. for

OPINION

LUMPKIN, Judge: Doyle Lee was tried David jury convicted in the District Court CRF-85-423, back, Appellant Holding the knife to her County, No. Case Cleveland (21 Pushing Dangerous Weapon into room. Robbery, with a directed C.P. the front 791), O.S.1981, Kidnap- bed, Appellant-attempted Two Counts her on the down § O.S.1981, 741), (21 and Four Counts ping pen- full § her. Unable to achieve O.S.1981, 888), Sodomy (21 of Forcible etration, § her the bed Appellant jerked No. of Three and in CRF-85-420 Case hot forced her sit in a bathtub of (21 O.S.1981, Degree Rape of First Counts attempted grab the knife water. C.P. punish- recommended as from struck, he closed his fist but (20) years imprisonment twenty ment He the face. then tied Weapon, fifty Robbery Dangerous awith her taped hands behind back and her (50) years imprisonment for one count of tape. with the C.P. mouth black electrical (30) imprisonment thirty years Kidnapping, front was forced back to the bed in the Kidnapping, one hundred for one count the Appellant completed room where (100)years imprisonment for each count of rape. During Appellant asked this time Sodomy, one hundred and and Forcible questions. did C.P. numerous When she (125) years imprisonment for twenty five satisfaction, to hit not answer his he would Rape. The trial Degree each of First count began face her to her in the so that nose accordingly. From sentenced profusely. Convincing Appellant bleed sentence, judgment Appellant appeals. and tape she was to breath unable with We affirm. face, put the covering blood her he and 20, 1985, C.P., high a school April On tape her cut the at her knife to face and Tulsa, senior and her sister were orally Appellant mouth. then forced her to Norman, college fraternity for a Oklahoma per- him. sodomize Unsatisfied with her R.S., party. young she met a man There bloody appearance, Appellant formance and high At approxi- school. she knew from to allowed C.P. wash the from her blood 21st, they mately 2:00 a.m. on the left the face, washing and hair. After her face walking place to party R.S. C.P. the' Appellant forced C.P. back to the bed staying As where she was the weekend. get made where he her on her hands and Campus they neared the area known committing rape. knees before second Appellant approached and Corner the them why to C.P. resist- Unable understand attempted pick fight with R.S. When to him, down, ing Appellant knife laid held the fight, placed Appellant R.S. to him- refused top lay to arm forced her on C.P.’s and to R.S., put self C.P. and his arms between C.P., Ap- of him. After this third accompanied and them down around them pellant again orally forced her to sodomize attempted As R:S. to street. C.P. and Appellant if repeatedly him. told C.P. that get away, Appellant tightened grip. him, anything he kill her. she did to would knife, Appellant, armed with a forced R.S. pushed against Appellant C.P. back a wall flight and of stairs to a C.P. to walk and told her that one of them had to die nearby apartment. As soon as all garage be, to and which did she want it her or R.S. Appellant apartment, three inside the were Appellant proceeded open the door Appel- door. locked the four locks on the had detained the closet where R.S. been into the bathroom lant ordered his victims kicked him hit him face and and across the knifepoint and at remove all forced them pulling him out of the closet. Re- before jewelry. R.S. was forced their and clothes tape mouth, moving Appellant from his into was ordered the bathtub and C.P. orally Appel- R.S. to sodomize him. forced electri- tie his him with black hands behind forced and to lie in lant then both C.P. R.S. way C.P. tape. cal satisfied with Not engage sodomy. and the bathtub oral task, hit performed Appellant tub, Pulling Appellant them out of the Appellant face his hand. with the back of them, pointed repeatedly knife hands and feet tying then finished R.S.’s that one of them had to die. As told them tape over tape; placed with the Appellant plunge about into a closet R.S.’s R.S. forced mouth. R.S., got into the chest of knife C.P. which then locked. by shouting attention at him. fered from moderate to severe alcohol and Appellant’s ordeal, ques- multiple chemical addiction Throughout Appellant and that indi- viduals with that level of were personal about her life. These addiction tioned C.P. prone experience blackouts. Dan Cor- questions by Ap- into statements evolved ley, psychologist Department with the he pellant that and C.P. were husband Corrections, Appel- testified that he treated they always togeth- wife and would lant while was on work release and that eventually play along decided to er. C.P. per- suffered from an unsocial Appellant and told him that she was Short, sonality Phillip psychia- disorder. merely given and that had his wife R.S. trist, that he testified met with a ride home. This satisfied so County the Cleveland Detention Center get dressed. With he allowed R.S. August During a two hour interview police, orders not to call the R.S. was al- history described his of alco- leave. lowed to abuse, hol incident which he was apartment, Appellant As left the R.S. molested, gave his version of the facts told C.P. that he did not trust R.S. because surrounding charges. these Dr. Short tes- probably police, they call the so would Appellant tified that he concluded was not go Allowing needed to somewhere else. psychotic probably highly but was intoxi- dressed, get Appellant accompanied toC.P. cated at time of the of the commission making periodic her down street rebuttal, presented offense. the State get away. threats on her life if she tried to Garcia, psychiatrist Dr. R.D. a forensic Walking through across the street a church performed who the court ordered examina- lot, parking Appellant forced C.P. into a Appellant Hospital. tion of at Eastern State Appellant spot- wooden shed. Once inside long He testified that his tests revealed no spray paint. Forcing ted a can of red C.P. problem by Appellant term chronic alcohol pull pants, to turn around and down her physically and stated that it would im- be Appellant sprayed paint the red over possible for an individual to have commit- up legs. Directing back and and down her alleged during ted the offenses an alcoholic shirt, pull up her to turn around and blackout. Appellant spray paint continued to the red error, Ap In his first legs. on her chest and the front of her pellant alleges per the trial court erred in Appellant why asked he When C.P. was mitting him to be tried as a of habitual this, doing responded that he wanted to Appellant fender. The record reveals that up see what she would “look like all cut originally charged Rape was with After bloody pieces.” and and Former Convictionof Two or More Felonies paint, Finished with the red was C.P. Robbery, Kidnapping in and CRF-85-420 again compelled knifepoint orally so- counts) (two counts), (two Sodomy and Af Appellant. Appellant domize As threat- ter or More Fel Former Conviction of Two time, rape her a ened to fourth C.P. con- During onies CRF-85-423. first pants vinced him to let her remove the stage preliminary hearing of the the State were down at her ankles. As she removed allege moved to amend the informations to pants Appellant she kicked with her sodomy two additional counts of in CRF- right attempted to run of the foot out 85-423 and two additional counts of first Appellant grabbed her shed. left foot but degree magis The rape in CRF-85-420. jerk away she was able to it and run down Appellant over for tri trate ordered bound the street. ran to the first house she She through seven in al on counts one CRF-85- police. saw and was let to call Degree Rape three counts of First trial, Appellant’s At sole defense was granted the State twen CRF-85-420 insanity that of at the time of the offense. to con ty days to amend the informations Torro, drug preliminary John certified and alcohol adduced at form with counselor, stage, hearing. testified that he had worked In the second the State felony Appellant January prior until con presented with the evidence two copies of July He suf- in the form of certified stated that victions allegations. objec- page second See abandon the and sentences. Over judgments counsel, (Okl.Cr. P.2d 111 Appellant was tion defense Simmons trial as a habitual then over for bound days Two later an amended first offender. properly tried a habit- as felony was filed both page information practice ual offender. While the better A second and CRF-85-423. CRF-85-420 would for the State to file the second be amended page with either filed page page, the amended first even trial, had retired information. At page when the same the second remains stage defense for first deliberations when substance, find in this we proceed- objected the bifurcated counsel surprised by case cannot claim was and the ing. objection overruled charges. Appellant enhanced received suf- to be tried

judge allowed ficient intent en- notice of State’s The trial court found habitual offender. punishment prior hance convic- information page the second prejudiced tions was not their use. particulars in the nature of a bill of Tyler See attached to which the State intended (Okl.Cr.1989). Accordingly, assign- page necessary but did not think it first ment of error is denied. to file a second time with amended Relying Appellant argues on Carter v. next informations. sister, the trial court prohibiting P.2d 435 trial court erred Appellant was of all Ewers, held that informed testifying psy Donna to his against him and that use of charges chological problems. particular, an ob prior suprise. no convictions was jection question asking sustained to a was opinion if the witness had an whether or Carter, 440, 292 P.2d at Court Appellant any psychological prob not had is that an accused entitled to be in- held Appellant lems. contends that such testi preliminary complaint of all formed mony excluded in of 12 was violation O.S. compelled meet charges he will be to 1981, 2701. Section 2701 of Evidence trial as the limit of time of as well opinion by of an Code allows admission punishment may imposed. be This that lay rationally if opinion a witness is expanded upon Wimberly in rule was v. (Okl.Cr.1985), perception based on the of the and State, 27, witness P.2d 32 where- 698 helpful understanding is to a clear that held a defendant is entitled to we pre- prior enhancing testimony convictions at or the determination of a fact State, hearing. purpose liminary The behind this issue. v. 309 P.2d LacCoarce 1113, (Okl.Cr.1957), is that the accused has the funda- doctrine 1117 we reiterated the right presume State, to that he has been expressed mental rule v. 80 Rice Okl.Cr. complained against preliminary fully 277, 912, (1945), 158 P.2d 917 that where hearing, lawfully held to and cannot defense, insanity interposed as a a non- greater charge entailing more answer a witness, act, expert testifying after to the State, 598 penalties. severe Price v. P.2d defendant, appearance conduct and 668, (Okl.Cr.1979). 669 acts, may state whether conduct and such appearance impressed being rational him as case, felony In the informa- However, lay or irrational. a witness filed with the second originally tions were permitted give opinion calling not to page At alleging prior convictions. diagnosis. find that the trial medical We presented preliminary hearing proof was as prohibited Mrs. Ewers from properly prior Appellant to the convictions. giving Appellant’s psycho as opinion to prior for trial on the clearly bound over problems. question put logical motion for convictions. The State’s leave diagnosis for a medical subsequent witness called and amend the Court’s give. Ap which Mrs. Ewers was unable granting reflects an intent request prejudiced by pellant the Court’s page of the informations amend first however, ruling, only specific No as Mrs. Ewers related suf so as to add counts. indi sought upon give opinion given the State ficient facts which to cation is that

323 or irrational or Appellant that was rational fenses. The State contends that under the Yates See right wrong. knew “same evidence each properly test” act was State, 197, (Okl.Cr.1985), 703 P.2d prosecuted punished separate and as State, (Okl.Cr. High v. 401 P.2d distinct offenses. Appellant Ewers testified that Mrs. (cid:127) family January had lived with her Jeopardy The Double Clause of both 1, 1985, April approximately until protects federal and state constitutions crimes, and three weeks before the (2) against 1) requir two distinct abuses: during alcoholic time he attended ing the accused to endure a series of trials anonymous meetings. Mrs. Ewers de 2) where the charged same offense is Appellant’s scribed childhood as third the infliction of multiple punishments for that he of four children and stated the same offense. Ocampo v. emotionally physically abused their (Okl.Cr.1989). P.2d Recognizing par their father. She further testified that functions, these two distinct this Court has always as rot ents described right apply reserved the the test which ten and and commented often worthless will most advance justice the interests of psychiatrist needed to see particular Salyer case. something wrong because with him. (Okl.Cr.1988). P.2d constantly She stated that their father told Appellant that hated him and threatened In the case we are con to throw him down a mine shaft. The prohibition cerned with the against multiple siblings other disliked and ex punishment, which we referred cluded him from their activities. Mrs. Ew Weatherly v. ers added that began abusing “forbid[ding] penaliz [the] young age. alcohol at a She also testified ing severely an accused more than the [of] opinion Appellant that in her was in need of provides, through law finding the device of psychiatric mental and treatment. The de that he has committed several violations of presented fense also drug licensed only substantive law where one exists.” counselor, alcohol a psychologist for the 733 P.2d at 1336. An act can violate more Department psychia of Corrections and a than if requires one statute each statute trist, Appellant’s all of whom testified to proof of an additional fact that the other alcohol, personal addiction to his anti-social not, multiple punishments does and are not ity Therefore, history and a of blackouts. prohibited, though may each even offense any potential excluding error in Mrs. Ew episode. act arise from the same or criminal opinion Appellant’s psychological ers on the States, Blockburger v. United 284 U.S. problems compensated by was more than 299, 304, 180, 182, L.Ed. 52 S.Ct. 76 306 testimony concerning his childhood and (1932). Therefore, must first determine testimony the of the other we witnesses con Fry v. cerning capacity. episode separate mental if his See the criminal involves State, (Okl.Cr.1974). offenses, 529 P.2d Ac consisting and of differ distinct cordingly, we find no reversible error proof. ques ent dissimilar The elements of proposition. this tion to ask “whether each of the offenses is charged of an fact requires proof additional error, his third of John necessary that is to the other.” not Appellant alleges subjected that he was State, (Okl son v. P.2d Cr. multiple punishments continuing for one proof If are differ the elements Jeopardy offense violation of the Double offense, ent for or if the elements of each Clause of both the federal and state consti the are identical dis several offenses but Urging tutions. apply this Court the prove proof required similar each of test”, Appellant argues “same transaction fense, significant gap exists be and if' a kidnappings merely the were move the individual attacks so that the ments incidental to the commission of the tween may unin rape sodomy and and criminal transaction not be called therefore should not intermittent, charged punished separate and as terrupted of- or then individual count, proven though as even the to each Weatherly occurred. crimes within minutes of one violations occurred P.2d at 1338. rape the In the case first another. present case, kidnapping, In the beginning occurred a series acts separate sodomy are and distinct rape and in the room C.P. forced onto bed front offenses, requiring each dissimilar being Appellant’s apartment through Merely because their several elements. of hot water forced sit bathtub rapid committed in succes crimes were then where and forced back to bed separate negate sion not fact does Appellant completed rape. Appellant committed, long sepa as so crimes were causing subsequently hit C.P. in the face The Double ration does exist. Id. profusely. Appellant nose to bleed Jeopardy is not carte blanche for Clause compeled perform sod then C.P. to oral many as to commit as offenses accused rape omy. committed second epi transaction or desired the same within while C.P. was on her hands and knees P.2d sode. Hill and washing after the blood her face (Okl.Cr.1973). rape hair. third occurred when the Further, reject Appellant’s ar we top forced C.P. sit on of him. gument kidnapping merged with that the orally forced then C.P. sodom controlling crime of rape because the sodomy ize him a second time. The final rape necessarily involves the forced deten occurred when and C.P. were alleged tion the victim. The information garage sprayed after she had been Appellant kidnapped the victim “with paint. every the red We find that element intent unlawful and felonious ... proven rape to each count secretly to be cause confined [the victim] sodomy. Appel not persuaded by We are against her imprisoned_ will.” argument only rape lant’s one oc (O.R.B2). kidnapping The intent of the since he did had curred not believe the act rape purpose for properly been consummated until the last review of facts shows that utterly act of intercourse. It would be separate kidnap- sufficiently to hold unreasonable that an accused could ping that it not an included so element. repeatedly rape or sodomize victim until See Stockton v. felt that had completed act to (Okl.Cr.1973). legal The factual and ele- Accordingly, assign own satisfaction. of the three crimes differ so as to ments ment error denied. prosecution punishment render though they proper each offense even error, assignment his fifth of same incident. this arose For his must contends that conviction reason, placed Appellant was not twice to be reversed because the trial court failed jeopardy punished nor twice for one of- post-examination competency hold a hear Accordingly assignment this er- fense. of 17, May ing. The record reflects that on ror denied. 1985, Appellant was ordered to Eastern error, psychiatric Hospital for In his fourth of State examination Jeopardy competency that a to to contends Double in order determine 18, parties violation also occured his trial for three trial. On June 1985 all stand rape appeared open of three counts of court wherein the trial counts forcible argues by reviewing sodomy. Appellant proceedings that since the initiated span, judge acts time of the case. The indicated occurred within limited the status 5, 1985, only receipt of a should have been tried for one count letter dated June Garcia, sodomy. Psychiatrist, of rape and one count of This Dr. Chief Forensic Hospital, reported State same issue was addressed Colbert Eastern 209, (Okl.Cr.1986), medically compe 714 P.2d 211 had been found trial. wherein this held that a defendant tent to stand Defense counsel Court separate record could be convicted of two offenses then asked if desired make a concerning finding. every rape of Dr. Garcia’s Defense where element of

325 See, by proof argument. e.g., that he had no evidence to same stated counsel States, 1, 304 psychiatric Morgan evalua- v. United U.S. 58 or contradict rebut 773, (1938),Akron, 82 L.Ed. his S.Ct. C. However he did not wish waive tion. States, Ry. & Y. Co. v. United 261 U.S. competency trial as to or his right to a 184, 270, (1923), L.Ed. 43 S.Ct. Sie independent right to seek the service of 549, bold v. 287 Ala. 253 So.2d 302 psychiatrist necessary if it became at a (1971), Board Education Cleveland counsel reiterated that later time. Defense City Cuyahoga County District v. School request good he could not in faith either of Revision, 231, Board 34 Ohio St.2d at that time as he had no those alternatives (1973), N.E.2d 125 Amerada Petroleum findings evidence to or contradict the rebut Hester, Corp. v. 188 Okl. 109 P.2d 820 (PH 4-5). Dr. Tr. Garcia. (1941), Appeal Borough West O.S.1981, seq. Title 22 1175.1 et sets § Alexander, 450 Pa. 301 A.2d 662 procedure forth the to be followed when (1973). competency defendant’s to stand trial hearing purposes A provides of O.S. has been raised. Section 1175.4 proceeding 1175.4means a wherein post-examination competency hearing for a § the state and the defense are afforded an by where the trial court is to determine opportunity present concerning evidence convincing clear and evidence if the defen- competency argue defendant’s and to incompetent. right dant toas inferences therefrom. This affords hearing cannot be reserved to a later time very the defense the basic tenet of our proceeding criminal because O.S. system justice, of criminal opportunity 1983, 1175.2(C) Supp requires the crimi- present evidence in one’s own behalf. proceedings suspended nal must be until However, the opportunity exercise of that person’s competency is determined. In solely is a decision for the defense. The Scott proceeding character is not altered judgment this Court stated that the of com- by present any the decision not to evidence. petency only made after is to be a formal hearing at which all relevant evidence is case, present parties both were presented. actually But what constitutes opportunity present afforded the evi- hearing in this context has not been ad- argument. dence and The record indicates dressed this Court. that the defense knew of Dr. Garcia’s find- ing competency, yet present chose not to “hearing” A is defined Black’s any evidence to contradict or rebut. De- Dictionary “proceeding Law of rela request fense counsel did not a continuance formality tive ... with definite issues of order his evidence. The deci- tried, fact or of law to be which witness regarding sion to evidence parties proceeded against es are heard and present competency of the defendant must right have to be heard ...”. Black’s [a] hearing. be made at the time of the It is (5th Ed.1979). Dictionary Law A anot matter which can be reserved. The “hearing” has also been described as a statement of defense counsel in this case proceeding parties in which the are afford right constitutes a waiver of the to further opportunity proof ed an to adduce and to hearing. counsel, argue, person or as to the flowing opinion inferences from the does not retreat from our evidence. 39A This (1976). Hearing competency 632 A of the de- C.J.S. review statement Scott that made the decisions from federal and state courts termination should not be on ba- procedure hearing examining opinion alone. wherein the called a is sis of the doctor’s hearing all judge discussed reveals two basic criteria. These The is to consider evi- However, components right presented hearing. two basic are the for all dence at the parties apprised hearing elects to waive the to be of all evidence of if the defendant considered, presented by the opportunity fered or with the and no evidence is de- heard, fense, opportunity present hearing judge and the the is to evaluate the be report legal own support one’s own contentions and to the doctor’s and make his 326 City v. Ha- Tulsa relies judge com- on The trial cannot determination. of (Okl.Cr.1976), and Lamb ley, 554 P.2d 102 put pel a on evidence. party State, (Okl.Cr.1981); P.2d how- v. 626 1355 post-examination interpretation of This misplaced reliance as the ever with that competency hearing is consistent clearly distinguishable. present case is In 1175.4(B) O.S.1981, 22 where-

provided in § Haley, charged information defendant the compe- presumed to be the defendant battery but failed to state with assault the burden tent the defense is allocated victim, exactly how he struck his whether going with of and burden of forward kicked, pushed him. or shoved Accordingly, assignment the evidence. this Lamb, charged information defendant the of error is denied. purposes kidnapping of extortion thing state of was but failed to what value assignment er In his of sixth present from the victim. the extorted ror, information Appellant alleges that the case, statutory is in lan- the information filed in sufficient CRF-85-420 guage act specifically states how the charges him. apprise against him of the Any question was committed. as to exact- complains that the three specifically He ly point in the or at where house what rape the are identical and counts of during episode rape the the was commited particu describe information did not hearing. explained preliminary at the of larity various acts committed the Therefore, adequately as the O.S.1981, pro upon Title 22 C.P. precise advised the the nature be vides that the information must direct charges against placed him and was not party charged; it the regards certain danger prosecution of further for the same charged; particular and the the offense acts, assignment of error is denied. charged, the offense circumstances error, In his seventh necessary to they when are constitute contends trial court complete has uniform offense. This Court running abused its his sen discretion apprise ly must held that information consecutively. Appellant argues tences acts he or she must defendant what just” that a “more sentence would be to prosecution in the prepared to meet concurrently run the sentences since against any subse the case and defend single during offenses were committed quent prosecution for same offense. 18). (Appellant’s Ap episode. page Brief State, (Okl.Cr. Short v. P.2d Taylor v. pellant compares case with sufficiency The true test of of P.2d 1404 wherein not whether it could information is this Court found that the trial court abused certain, have been made more but whether in running its discretion the sentences con in fact misled defendant was secutively and modified the sentences to expose it information and whether would concurrently. run possibility of subse defendant It is decision to well established put quently being jeopardy a second time concurrently run defendant’s sentences Nealy for the offense. same consecutively or the sound dis- rests within (Okl.Cr.1981). P.2d The record in cretion of the trial court. Sherrick case reflects that (Okl.Cr.1986). P.2d specific nature aware well do of that discretion We not find an abuse against preliminary him. charges At Each offense commit- case. specifically magistrate enu hearing, separate and distinct ele- ted consisted of sepa which constituted each merated acts ments, merged into of of which none Nealy we stated rape. rate count of State, King any of See the others. sufficiency of of the infor the test Further, (Okl.Cr.1982). P.2d on the basis mation must be determined distinguishable clearly from is case practical rather than technical considera Taylor convict- the defendant was wherein tions; (6) to be avoided. Id. burglary of six hairsplitting is ed and for the sentenced held parking for This Court meters $3.73. (90) punishment totaling ninety years any plea guilty by conviction on a imprisonment considering filing application was excessive plea an to withdraw the jury the crime committed and the recom- (10) days within ten pro- from the date of mendation that the sentences be served judgment nouncment of the and sentence. case, concurrently. In the the Nothing in the record indicates that are not crimes committed appealed. conviction was A determination only egregious in Taylor, more than those prior conviction was unconstitu- we also have no recommendation but tionally obtained has never been made and leniency. Finding the trial for no abuse of proper place Appel- this is not the for the decision, assignment court’s of error is collaterally lant to attack that conviction. denied. Therefore, error no occurred when the trial,

During penalty phase used State that conviction for enhancement Appellant’s punishment was enhanced with State, purposes. See Parks v. 651 P.2d plea judgment guilty and sentence on a Ashlock v. Degree Rape Murray for First Coun (Okl.Cr.1982). 643 P.2d This as- ty. Appellant objected argues at trial and signment of error therefore denied. assignment now in his final of error that Accordingly, judgment and sentence improper the enhancement was as a viola is AFFIRMED. jeopardy pursuant tion of double to this in Doyle Court’s decision LANE, JOHNSON, JJ., BRETT and (Okl.Cr.1978). In Doyle Appellant’s concur. kidnapping 1977 conviction for pur for PARKS, P.J., dissents. poses of extortion was affirmed. Appellant kidnapped young lady case PARKS, Presiding Judge, dissenting: Norman, drove her to Turner Falls where I strongly majority’s dispo- dissent to the raped, the victim eventually let the appellant’s sition of fifth Dallas, go victim free in During Texas. Therein, appellant error. asserts that his kidnapping trial in County, Cleveland conviction must be reversed because the rape the court admitted evidence of the as post-examina- trial court failed to conduct a other crimes evidence. That decision was competency hearing. tion I agree.1 special affirmed this Court. In his con meager colloquy To characterize the be- curring opinion, Judge Brett stated that as tween defense counsel and the trial court rape the evidence of the had been treated day preliminary hearing on the being part gestae as res of the appropriate “hearing” kidnapping, subsequent purposes trial for that of for of 22 precluded by O.S.1981, fense jeop seq., major- should be former 1175.1et which the ardy. 578 P.2d at 370. However a ity does, review simply so ludicrous. A review judgment and sentence for the that, clearly record indicates on the charge Appellant pled guilty shows that preliminary hearing, date set for defense 20, 1977, Murray County May approximate appeared prepared counsel in court to de- ly days being four after convicted Cleve against present charges fend his client County, approximately year land one preliminary hearing. at a The trial court prior to this Court’s decision in We Doyle. appellant by then essentially ambushed Appellant’s argument find lacks merit. reading findings into evidence Dr. Garcia’s O.S.1981, requesting from the defense. App., Title Ch. Rule 4.1 rebuttal provides appeal may time, perfected appellant’s attorney candidly that an At that reversal, previously hearing prior tency 1. This Court has remanded similar to trial mandates Anderson, (Parks, J., purpose cases to the determining dis- district See 765 P.2d at 1234 (1) senting), yielded majority whether or not it was then have to the of this I appropriate post-exami- disposition feasible to conduct an of like claims on the basis of Court's so, (2) competency hearing; remedy nation and if stare decisis. The abovestated is avail- Court, appellant competent majority yet whether to stand able to this chooses not Therefore, agree employ appellant trial when he See so did. Anderson v. it. I (Okl.Cr.1988). my opinion P.2d 1232 While it is that this case should be reversed and remanded post-examination compe- that failure to hold a for a new trial. not then that he was court informed the psychi- contradict the to rebut or

prepared was en- response Such atric evaluation. that, previously stat- justifiable tirely day in ed, appeared on the defense counsel pre- appellant at his represent question that he liminary hearing. He then stated appellant’s right to not wish to waive did competency his have a determine right to seek the service trial or his stand psychiatrist if it later independent of an judge do so. The trial necessary to became prosecutor if he had asked thereafter comment, that he did any he announced not, hearing was be- preliminary and the be noted that no record

gun. It should also respect required find- made with 1175.4(E) ings pursuant §§ and 1175.5. I foregoing, cannot

On basis was afforded agree that defense counsel opportunity to evidence and appellant, that he argument on behalf same, or chose not to waiver statements constituted hearing. Accordingly, I right to further remand this cause would reverse and appro- that an district court and command pursuant priate hearing be conducted 1175.1, seq., prior et the commence- proceedings. ment of criminal EADS, Appellant,

Steven D. LIFE THE WOODMEN OF WORLD SOCIETY, Appellee. INSURANCE 70627. No. Oklahoma, Appeals Court of No. 2. Division March 1989. April Rehearing Denied Chickasha, for Smalling, appel- Jim Brent 9, 1990. Certiorari Denied Jan. lant. Elder, Ramsey, Rodney & C. Stewart appellee. City, for Oklahoma

Case Details

Case Name: Doyle v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Dec 26, 1989

Citation: 785 P.2d 317

Docket Number: F-86-356

Court Abbreviation: Okla. Crim. App.