Lead Opinion
OPINION
Appellant David Lee Doyle was tried by jury and convicted in the District Court of
On April 20, 1985, C.P., a high school senior from Tulsa, and her sister were in Norman, Oklahoma for a college fraternity party. There she met R.S., a young man she knew from high school. At approximately 2:00 a.m. on the 21st, they left the party with R.S. walking C.P. to the' place where she was staying the weekend. As they neared the area known as Campus Corner the Appellant approached them and attempted to pick a fight with R.S. When R.S. refused to fight, Appellant placed himself in between C.P. and R.S., put his arms around them and accompanied them down the street. As C.P. and R:S. attempted to get away, Appellant tightened his grip. Appellant, armed with a knife, forced R.S. and C.P. to walk a flight of stairs to a nearby garage apartment. As soon as all three were inside the apartment, Appellant locked the four locks on the door. Appellant ordered his victims into the bathroom and forced them at knifepoint to remove all their clothes and jewelry. R.S. was forced into the bathtub and C.P. was ordered to tie his hands behind him with black electrical tape. Not satisfied with the way C.P. performed the task, Appellant hit her in the face with the back of his hand. Appellant then finished tying R.S.’s hands and feet with the tape; and placed the tape over R.S.’s mouth. R.S. was forced into a closet which was then locked.
Holding the knife to her back, Appellant directed C.P. into the front room. Pushing her down on the bed, Appellant-attempted to rape her. Unable to achieve full penetration, Appellant jerked her from the bed and forced her to sit in a bathtub of hot water. C.P. attempted to grab the knife from Appellant but he closed his fist and struck, her in the face. He then tied her hands behind her back and taped her mouth with the black electrical tape. C.P. was forced back to the bed in the front room where the Appellant completed the rape. During this time Appellant asked C.P. numerous questions. When she did not answer to his satisfaction, he would hit her in the face so that her nose began to bleed profusely. Convincing Appellant that she was unable to breath with the tape and blood covering her face, he put the knife to her face and cut the tape at her mouth. Appellant then forced her to orally sodomize him. Unsatisfied with her performance and bloody appearance, Appellant allowed C.P. to wash the blood from her face and hair. After washing her face, Appellant forced C.P. back to the bed where he made her get on her hands and knees before committing the second rape. Unable to understand why C.P. was resisting him, Appellant laid down, held the knife to C.P.’s arm and forced her to lay on top of him. After this third rape of C.P., Appellant forced her to again orally sodomize him. Appellant repeatedly told C.P. that if she did anything to him, he would kill her. Appellant pushed C.P. back against a wall and told her that one of them had to die and which did she want it to be, her or R.S.
Appellant proceeded to open the door to the closet where R.S. had been detained and kicked him and hit him across the face before pulling him out of the closet. Removing the tape from his mouth, Appellant forced R.S. to orally sodomize him. Appellant then forced both C.P. and R.S. to lie in the bathtub and engage in oral sodomy. Pulling them out of the tub, the Appellant pointed the knife at them, and repeatedly told them that one of them had to die. As the Appellant was about to plunge the knife into the chest of R.S., C.P. got the
As R.S. left the apartment, Appellant told C.P. that he did not trust R.S. because he would probably call the police, so they needed to go somewhere else. Allowing C.P. to get dressed, Appellant accompanied her down the street making periodic threats on her life if she tried to get away. Walking across the street through a church parking lot, Appellant forced C.P. into a wooden shed. Once inside Appellant spotted a can of red spray paint. Forcing C.P. to turn around and pull down her pants, Appellant sprayed the red paint over her back and up and down her legs. Directing her to turn around and pull up her shirt, Appellant continued to spray the red paint on her chest and the front of her legs. When C.P. asked Appellant why he was doing this, he responded that he wanted to see what she would “look like all cut up and bloody and pieces.”
Finished with the red paint, C.P. was again compelled at knifepoint to orally sodomize Appellant. As Appellant threatened to rape her a fourth time, C.P. convinced him to let her remove the pants that were down at her ankles. As she removed the pants she kicked Appellant with her right foot and attempted to run out of the shed. Appellant grabbed her left foot but she was able to jerk it away and run down the street. She ran to the first house she saw and was let in to call the police.
At trial, Appellant’s sole defense was that of insanity at the time of the offense. John Torro, a certified drug and alcohol counselor, testified that he had worked with the Appellant from January 1982 until July 1982. He stated that Appellant suffered from moderate to severe alcohol and multiple chemical addiction and that individuals with that level of addiction were prone to experience blackouts. Dan Cor-ley, a psychologist with the Department of Corrections, testified that he treated Appellant while he was on work release and that Appellant suffered from an unsocial personality disorder. Phillip Short, a psychiatrist, testified that he met with Appellant in the Cleveland County Detention Center in August 1985. During a two hour interview the Appellant described his history of alcohol abuse, an incident in which he was molested, and gave his version of the facts surrounding these charges. Dr. Short testified that he concluded Appellant was not psychotic but was probably highly intoxicated at the time of the commission of the offense. In rebuttal, the State presented Dr. R.D. Garcia, a forensic psychiatrist who performed the court ordered examination of Appellant at Eastern State Hospital. He testified that his tests revealed no long term chronic alcohol problem by Appellant and stated that it would be physically impossible for an individual to have committed the alleged offenses during an alcoholic blackout.
In his first assignment of error, Appellant alleges the trial court erred in permitting him to be tried as a habitual offender. The record reveals that Appellant was originally charged with Rape After Former Conviction of Two or More Felonies in CRF-85-420 and Robbery, Kidnapping (two counts), and Sodomy (two counts) After Former Conviction of Two or More Felonies in CRF-85-423. During the first stage of the preliminary hearing the State moved to amend the informations to allege two additional counts of sodomy in CRF-85-423 and two additional counts of first degree rape in CRF-85-420. The magistrate ordered Appellant bound over for trial on counts one through seven in CRF-85-423 and three counts of First Degree Rape in CRF-85-420 and granted the State twenty days to amend the informations to conform with the proof adduced at preliminary hearing. In the second stage, the State presented evidence of two prior felony convictions in the form of certified copies of
In Carter,
In the present case, the felony informa-tions were originally filed with the second page alleging the prior convictions. At the preliminary hearing proof was presented as to the prior convictions. Appellant was clearly bound over for trial on the prior convictions. The State’s motion for leave to amend and the Court’s subsequent granting of the request reflects an intent to amend the first page of the informations only so as to add specific counts. No indication is given that the State sought to abandon the second page allegations. See Simmons v. State,
Appellant was properly tried as a habitual offender. While the better practice would be for the State to file the second page with the amended first page, even when the second page remains the same in substance, we find that Appellant in this case cannot claim he was surprised by the enhanced charges. Appellant received sufficient notice of the State’s intent to enhance punishment with the prior convictions and was not prejudiced by their use. See Tyler v. State,
Appellant argues next that the trial court erred in prohibiting his sister, Donna Ewers, from testifying to his psychological problems. In particular, an objection was sustained to a question asking if the witness had an opinion whether or not Appellant had any psychological problems. Appellant contends that such testimony was excluded in violation of 12 O.S.1981, § 2701. Section 2701 of the Evidence Code allows the admission of an opinion by a lay witness if the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of his testimony or the determination of a fact in issue. In LacCoarce v. State,
In his third assignment of error, Appellant alleges that he was subjected to multiple punishments for one continuing offense in violation of the Double Jeopardy Clause of both the federal and state constitutions. Urging this Court to apply the “same transaction test”, Appellant argues that the kidnappings were merely movements incidental to the commission of the rape and sodomy and therefore should not be charged and punished as separate offenses. The State contends that under the “same evidence test” each act was properly prosecuted and punished as separate and distinct offenses.
• The Double Jeopardy Clause of both federal and state constitutions protects against two (2) distinct abuses: 1) requiring the accused to endure a series of trials where the same offense is charged and 2) the infliction of multiple punishments for the same offense. Ocampo v. State,
In the present case we are concerned with the prohibition against multiple punishment, which we referred to in Weatherly v. State,
In the present case, the kidnapping, rape and sodomy are separate and distinct offenses, each requiring dissimilar proof of their several elements. Merely because the crimes were committed in rapid succession does not negate the fact that separate crimes were committed, so long as a separation does exist. Id. at 1338. The Double Jeopardy Clause is not carte blanche for an accused to commit as many offenses as desired within the same transaction or episode. Hill v. State,
Further, we reject Appellant’s argument that the kidnapping merged with the rape because the controlling crime of rape necessarily involves the forced detention of the victim. The information alleged that Appellant kidnapped the victim “with the unlawful and felonious intent ... to cause [the victim] to be secretly confined and imprisoned_ against her will.” (O.R.B2). The intent of the kidnapping was not for the purpose of rape and a review of the facts shows that the rape was sufficiently separate from the kidnapping so that it was not an included element. See Stockton v. State,
In his fourth assignment of error, Appellant contends that a Double Jeopardy violation also occured in his trial for three counts of rape and three counts of forcible sodomy. Appellant argues that since the acts occurred within a limited time span, he should have been tried for only one count of rape and one count of sodomy. This same issue was addressed in Colbert v. State,
In his fifth assignment of error, Appellant contends that his conviction must be reversed because the trial court failed to hold a post-examination competency hearing. The record reflects that on May 17, 1985, Appellant was ordered to Eastern State Hospital for psychiatric examination in order to determine his competency to stand trial. On June 18, 1985 all parties appeared in open court wherein the trial court initiated proceedings by reviewing the status of the case. The judge indicated receipt of a letter dated June 5, 1985, from Dr. Garcia, Chief Forensic Psychiatrist, Eastern State Hospital, and reported that Appellant had been found medically competent to stand trial. Defense counsel was then asked if he desired to make a record concerning Dr. Garcia’s finding. Defense
Title 22 O.S.1981, § 1175.1 et seq. sets forth the procedure to be followed when the defendant’s competency to stand trial has been raised. Section 1175.4 provides for a post-examination competency hearing where the trial court is to determine by clear and convincing evidence if the defendant is incompetent. The right to this hearing cannot be reserved to a later time in the criminal proceeding because 22 O.S. Supp 1983, § 1175.2(C) requires the criminal proceedings must be suspended until the person’s competency is determined. In Scott v. State,
A “hearing” is defined by Black’s Law Dictionary as a “proceeding of relative formality ... with definite issues of fact or of law to be tried, in which witnesses are heard and parties proceeded against have [a] right to be heard ...”. Black’s Law Dictionary 649 (5th Ed.1979). A “hearing” has also been described as a proceeding in which the parties are afforded an opportunity to adduce proof and to argue, in person or by counsel, as to the inferences flowing from the evidence. 39A C.J.S. Hearing 632 (1976). A review of decisions from federal and state courts wherein the procedure called a hearing is discussed reveals two basic criteria. These two basic components are the right for all parties to be apprised of all evidence offered or considered, with the opportunity to be heard, and the opportunity to present one’s own contentions and to support the same by proof and argument. See, e.g., Morgan v. United States,
A hearing for purposes of
In the present case, both parties were afforded the opportunity to present evidence and argument. The record indicates that the defense knew of Dr. Garcia’s finding of competency, yet chose not to present any evidence to contradict or rebut. Defense counsel did not request a continuance in order to present his evidence. The decision to present evidence regarding the present competency of the defendant must be made at the time of the hearing. It is not a matter which can be reserved. The statement of defense counsel in this case constitutes a waiver of the right to further hearing.
This opinion does not retreat from our statement in Scott that the competency determination should not be made on the basis of the examining doctor’s opinion alone. The hearing judge is to consider all evidence presented at the hearing. However, if the defendant elects to waive the hearing and no evidence is presented by the defense, the hearing judge is to evaluate the doctor’s report and make his own legal
This interpretation of a post-examination competency hearing is consistent with that provided in 22 O.S.1981, § 1175.4(B) wherein the defendant is presumed to be competent and the defense is allocated the burden of proof and burden of going forward with the evidence. Accordingly, this assignment of error is denied.
In his sixth assignment of error, Appellant alleges that the information filed in CRF-85-420 was not sufficient to apprise him of the charges against him. He specifically complains that the three counts of rape are identical and that the information did not describe with particularity the various acts of rape committed upon C.P. Title 22 O.S.1981, § 402 provides that the information must be direct and certain as it regards the party charged; the offense charged; and the particular circumstances of the offense charged, when they are necessary to constitute a complete offense. This Court has uniformly held that an information must apprise the defendant of what acts he or she must be prepared to meet in the prosecution of the case and to defend against any subsequent prosecution for the same offense. Short v. State,
Appellant relies on City of Tulsa v. Haley,
In his seventh assignment of error, Appellant contends that the trial court abused its discretion in running his sentences consecutively. Appellant argues that a “more just” sentence would be to run the sentences concurrently since the offenses were committed during a single episode. (Appellant’s Brief page 18). Appellant compares his case with Taylor v. State,
It is well established that the decision to run a defendant’s sentences concurrently or consecutively rests within the sound discretion of the trial court. Sherrick v. State,
During the penalty phase of trial, Appellant’s punishment was enhanced with a judgment and sentence on a guilty plea for First Degree Rape from Murray County. Appellant objected at trial and argues now in his final assignment of error that the enhancement was improper as a violation of double jeopardy pursuant to this Court’s decision in Doyle v. State,
Title 22 O.S.1981, Ch. 18, App., Rule 4.1 provides that an appeal may be perfected from any conviction on a plea of guilty by filing an application to withdraw the plea within (10) ten days from the date of pro-nouncment of the judgment and sentence. Nothing in the record indicates that the conviction was appealed. A determination that the prior conviction was unconstitutionally obtained has never been made and this is not the proper place for the Appellant to collaterally attack that conviction. Therefore, no error occurred when the State used that conviction for enhancement purposes. See Parks v. State,
Accordingly, the judgment and sentence is AFFIRMED.
Dissenting Opinion
dissenting:
I strongly dissent to the majority’s disposition of appellant’s fifth assignment of error. Therein, appellant asserts that his conviction must be reversed because the trial court failed to conduct a post-examination competency hearing. I agree.
To characterize the meager colloquy between defense counsel and the trial court on the day of preliminary hearing as an appropriate “hearing” for purposes of 22 O.S.1981, § 1175.1 et seq., which the majority so does, is simply ludicrous. A review of the record clearly indicates that, on the date set for preliminary hearing, defense counsel appeared in court prepared to defend his client against the present charges at a preliminary hearing. The trial court then essentially ambushed appellant by reading into evidence Dr. Garcia’s findings and requesting rebuttal from the defense. At that time, appellant’s attorney candidly
On the basis of the foregoing, I cannot agree that defense counsel was afforded the opportunity to present evidence and argument on behalf of appellant, that he chose not to present the same, or that his statements constituted a waiver of the right to further hearing. Accordingly, I would reverse and remand this cause to the district court and command that an appropriate hearing be conducted pursuant to § 1175.1, et seq., prior to the commencement of criminal proceedings.
Notes
. This Court has previously remanded similar cases to the district court for the purpose of determining (1) whether or not it was then feasible to conduct an appropriate post-examination competency hearing; and if so, (2) whether the appellant was competent to stand trial when he so did. See Anderson v. State,