The STATE of Oklahoma, ex rel. Andrew M. COATS, District Attorney, Seventh Judicial District, Oklahoma County, Oklahoma, Petitioner, v. The Honorable Arthur Lory RAKESTRAW, District Judge, Seventh Judicial District, State of Oklahoma, Respondent.
No. O-80-147
Court of Criminal Appeals of Oklahoma
April 21, 1980
610 P.2d 256
We cannot find, at this point, that the sperm samples were viable specimens for blood grouping at the time of the examination of victim Ms. J. S. Nor do we know, even if they had been appropriate on March 13, that they could have been blood typed on May 23, at the time of the hearing on the motion to produce. Certainly, the defendant should have sought a continuance and applied to this Court for a writ mandating the lower court to have blood groupings run on the sperm slides. Wing v. State, supra. We note, also, that the subpoena power of the defеndant does not extend to conducting medical examinations and analyses.
This conviction rests upon overwhelming evidence, particularly the identification of the defendant by both victims and the identifiable fingerprint taken from the baby oil bottle in the victims’ apartment matching the defendant‘s fingerprint. We cannot say, in the face of this great weight of evidence, that this defendant suffered аny prejudice or that the test results, had there been any, would have inured to his benefit.
What we can and do say is that, in the investigation of a rape, the better practice would be for the officers to request that the sperm sample taken from the victim be tested also for blood type, if and when that is scientifically possible. This would simplify the investigation of the crime for the State and might tend to exonerate any accused person not falling within that blood group.
We therefore AFFIRM this case and MODIFY it on the basis of the obvious punishment assessment by the jury according to an unconstitutional statute,
CORNISH, P. J., and BUSSEY, J., concur.
Andrew M. Coats, Dist. Atty., David Hardwicke, Asst. Dist. Atty., for petitioner.
OPINION
BUSSEY, Judge:
Following the motions challenging the constitutionality of
I—Equal Protection
It is contended that the reverse certification procedurе embodied in the provisions of
It is clear from the statute that the Legislature intended most 16 and 17-year-old persons charged with any of the enumerated offenses should be tried as adults. This is apparent from the different criteria used in making the reverse certification dеcision—greater weight to be given by the judge to the gravity of the offense charged, and notably absent is consideration of the sophistication and maturity and capability of distinguishing right from wrong and the likelihood of reasonable rehabilitation, both required for regular certification by
It is equally cleаr that in most instances the court will decline to certify the person as a juvenile. The statute is similar to those of some of our sister states in its prescription of adult treatment for juveniles of certain age and offense classifications,2 but is less conclusive than some of
Probably, the Legislature reasoned that the application of
In McGowan v. Maryland, 366 U.S. 420, 425, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961), the Supreme Court of the United States stated the standard for testing equal protection violation claims:
“. . . Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State‘s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state оf facts, reasonably may be conceived to justify it. . . .” (Citations omitted, footnote omitted)
Applying this standard to the statute here involved, we believe that the classification created by the Legislature bears a rational relationship to an important legislative objective, i. e., protection of the public.
II—Due Process
It is next contended that from its inception the juvenile code
“The respondent next ruled that Section 1112(b) created a constitutionally impermissible presumption that 16 and 17-year-olds accused of serious crimes should be treated as adults. The panel of judges held that the amendment created an invalid presumption of competence. The amicus curiae brief stresses that Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and
10 O.S.Supp.1978, § 1112 , with the exception of subsection (b), create a presumption of incompetence to stand trial on persons under 18. We fail to find that presumption in the statute, in Kent, or in any of our cases. In fact, the only Oklahoma statute we can find dealing with the incompetence of children to commit crimes is21 O.S.1971, § 152 , which provides that children under 7 years are incapable of committing crimes and that children over 7 and undеr 14 are incapable of committing crimes in the absence of proof that at the time of committing the act or neglect charged against them, they knew of its wrongfulness. Nor do we find that the amendments create a presumption of a fact which by law must be proven before a 16 [or] 17-year-old can be tried as an adult. We do not need at this point to determine whether somewhere implicit inthe United States Constitution is the requirement that for purposes of criminal prosecution, a person must be treated as a juvenile until he is 18, as both sides submit that had the Legislature wished it, it simply could have chosen to define juveniles as anyone under 16.”
III—Vagueness
This leads us to a consideration of the allegation that the statutory amendments are unconstitutionally vague. The test for unconstitutional vagueness is found in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939), and was expressed as follows:
“. . . No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. The applicable rule is stated in Connally v. General Constr. Co., 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322, 328]: ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first еssential of due process of law.‘” (Citations omitted, footnote omitted)
Our examination of the statute in question does not reveal that degree of vagueness which necessitated our decision in State ex rel. Coats v. Johnson, supra. But, to the contrary, the terms are clear and explicit and any supposed inconsistency may be judicially determined when the necessity for judicial construction arises.
For all the above and foregoing reasons, the Honorable Arthur Lory Rakestraw is directed to vacate her order of the 6th day of March, 1980.
CORNISH, P. J., dissents.
BRETT, J., concurs specially.
BRETT, Judge, specially concurring:
I have examined the law cited by the respondent in the written opinion of March 18, 1980, in support of the holding that the new reverse certification statute denies equal protection to persons charged under it. I concur with Judge Bussey that this statute does not deny equal protection.
The respondent‘s written opinion recites that legislative classification must not be arbitrary and that it must rest upon a differentiation that is fairly and reasonably related to the objective of the legislation, so that all similarly situated persons will be treated equally. Royster Guano Company v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). However, in Royster, the United States Supreme Court also held that the equal protection guarantee does nоt prohibit the states from exercising wide discretion in creating legislative classifications. In Royster, the Court looked at legislation for taxing corporations in Virginia. There was no rational basis for distinguishing between corporations that did business within the state and those that did not in determining their exempt status for paying taxes on out-of-state income; and so the statute was struck down.
In 1942, the United States Supremе Court also struck down a sterilization law aimed at preventing the inheritance of criminal propensities, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655. Because the right being infringed upon was one of privacy and procreation, the Court applied the fundamental rights-strict scrutiny test, finding that the discrimination between the classes of criminals who were candidates for sterilization and those who were immune was not supported by а compelling state interest.
The distinction between Skinner and the respondent‘s expressed view is obvious. In Skinner, the classification infringed upon a fundamental right and, when examined in
If we believe that the Legislature is constitutionally authorized to define certain persons out of the juvenile code, and we do, then we must apply the rational basis test to that classification to determine its constitutionality. We find that there is a rational connection between the crimes listed as committed by the included ages and the intended purpose of protecting society. We do not agree with the respondent that all other 16 and 17-year-old persons who commit unlisted felonies are “similarly situated.” Neither do we find the choice of crimes to be arbitrary. The Legislature is аfforded discretion, and it is obvious that the crimes listed are serious felonies. It is not this Court‘s duty to ascertain the “wisdom” of legislation, but only its constitutionality.
I would also suggest that the procedure outlined in
Finally, my examination of the statutes indicates that the review оf reverse certification by this Court, if any, would only come at the time of the regular appeal in the event of conviction. As I perceive the statutes, there is no provision for the accused person to appeal from the refusal to certify that person to juvenile court nor by the State from an order certifying the person to juvenile court. Admittedly, should the State rеserve a question of law for appeal, that would fall within the provisions of
CORNISH, Presiding Judge, dissenting:
In an unusual procedure, a panel of three District Judges, in a 2 to 1 decision, issued a twelve page opinion striking down the 1979 reverse certification statute. A careful study of the present statute and the briefs filed herein has not persuaded me to depart from my earlier special concurring opinion dealing with this type of age/offense classification. See State ex rel. Coats v. Johnson, Okl.Cr., 597 P.2d 328 (1979). I believe the present statute continues to create an impermissible presumption having no rational connection to the juvenile‘s competency to stand trial as an adult. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).
Of equally grave concern to me is that portion of
I am particularly disturbed that the trial court, after hearing the motion to certify as a сhild, is required only to conclude that it has considered each of the guidelines in reaching its decision. This fails to demonstrate that a full investigation has taken place, that the motion has received the careful and thorough consideration of the trial judge, and that the order contains findings of fact and conclusions of law set forth “with sufficient specificity to permit meaningful review.” See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). How can this Court discharge its appellate review responsibility when the statute only requires that the trial judge make such a general finding?
Furthermore, apprehension as to the constitutionality of the reverse certification statute has been demonstrated statewide since the adoption of the first such statute on October 1, 1978. Numerous prosecutors and judges have continued to proceed under the old certification law to avoid subsequent reversals and retrials of hundreds of cases in the future. Potentially, we have the same problem with the reverse certification statute that we had in Edwards v. State, Okl.Cr., 591 P.2d 313 (1979).2
Therefore, I respectfully dissent.