*1 province jury weigh exclusive Cr., (1972). record 503 P.2d pro does not show that the evidence the voir dire and determine the facts. opinion of fixed spective jurors had a State, Okl.Cr., Furthermore,
guilt.
Sam v.
light
of the facts and circumstances
grant
that the
(1973), states
onstrate
impartial.
In conclusion we cannot see that the de- prejudiced by
fendants were the trial grant continuance,
court’s refusal
change quash jury. venue or to assignment defendants’ final error pro it is asserted that the evidence STATE of Appellant, duced at trial support was insufficient to v. jury. the verdict of We note rec DURHAM, Appellee. Clarence J. ord positively reflects the victim iden No. 0-75-459. tified the defendant Allen Batie as a Joe Appeals of Oklahoma. participant in the The victim crime. had 29, 1976. Jan. person on his unusually large an amount of cash pres which had been received
ence of the defendant. The victim further
testified that at the time the incident
question occurred the defendant asked the money
victim for his and as a result the
victim suffered beating a severe before ex
tricating himself from his assailants.
In Gray
Okl.Cr.,
follows: “ . repeatedly We have held competent where there is evidence
in the record from which jury could
reasonably conclude that defendant was
guilty charged, the Court of Criminal
Appeals will not interfere with the ver-
dict though even there sharp is a conflict
in the evidence and different inferences
may be therefrom, drawn since it is the *2 Fallís, Jr., Atty., S. M. Dist. Marvin E. Dist,
Spears, Atty., County, Asst. Tulsa for appellant. Williams, Tulsa, appellee.
Patrick A. OPINION BLISS, Judge: Durham, appellee, Clarence here- J. referred to as inafter charged by preliminary dated information 27, 1965, in the Pleas December Common County, of Court in and for Tulsa Oklahoma, Case for the crime No. Murder, of 21 violation January 701. On appli- attorney then of record made and for cation to the District Court county requesting defendant be com- Hospital mitted to Eastern State Vinita, hospital with- Oklahoma at a State Department Mental Health for mental observation days ninety period (90) for a not to exceed contemplated O.S.Supp.1965, §§ Upon hearing, the applica- to 1174. accord- granted and order entered tion was superintend- period, ingly. Within the hospital requested thirty ent observation, and day for such extension During granted order.. the same was May know, witness did day standing thirty extension out front lady superintendent holding directed a letter to with one hand and a fire- arm advising that the defendant the other and apparently hand court time, trying should be mentally incompetent lady go at force the with him. custody Fearing safety returned to her own children psychi- automobile, hospital for left in her to a mental “committed the witness went to *3 them go and told them atric care treatment.” into the friend’s house, did. She talked with the 27, May 1966, hearing a court On was defendant, who told lady her that the he held, attorney attended the State’s was holding was his wife and he wanted record, attorney defendant and his go him, her to with but she was refusing, the defendant at the conclusion of which “No, saying, he wants to hurt me. . . “transported ordered to the Eastern was You are going to kill me. . You Vinita, Oklahoma, Hospital at for might as well do it here.” Bas- Witness compliance treatment with Title attempt kin’s persuade 1171-1174, Oklahoma Statutes Annot. Secs. against any violence failed and he shot his sane, the defendant become and to until victim in the head with the firearm. As await further order of court.” The record lay she ground, on the defendant went to clearly acquiesced indicates the defendant car, shotgun returned with a and blew request jury in this order and no made for top of her head He off. then returned permitted by trial as Section 1174. attempted to his car and suicide shoot- 18, 1972, September On the court case ing pistol. himself police with a Hospital consultant of the Eastern State ambulance soon arrived. court, declaring directed letter mentally competent request- stipulation defendant Following as to the cause of ing victim, that defendant death of be removed from Bernice Dur- Jewel hospital ham, possible at the earliest On date. Defendant rested. offered 20, September 1972, State’s, the letter was filed no evidence but demurrer to the and the present asserting defendant was in court for prove it did not the crime pre-preliminary arraignment. Murder, charged, examination that it did not show the legally competent know At preliminary examination held acts and conduct at the time of the homi- 24, 1973, May held in the District Court of cide and that it had showed the defendant County number, Tulsa under a new case been incarcerated the Eastern State CRF-73-1203, said Common Pleas Court Hospital years prior six for over (6) having been merged into the District Court right preliminary hearing, knowing by reason of reorganization court effected wrong. magistrate overruled by amendment to the Constitution of the and held the defendant for trial. demurrer State of preliminary on the in- formation, defendant was bound over for Trial July information was filed 1973. trial for the crime of Murder. Defendant’s Motion to Dismiss for want of
Transcript jurisdiction prelim- at and on evidence was overruled October inary 10, 1973, hearing lengthy examination or Motion reflects sub- defendant filed a stantially Baskin, Quash follows: Mae the information which were Jewel embodied, overall, called as a alleged insufficiency witness for the testified noon, that on day, preliminary Christmas exami- about Decem- evidence at the 25, 1965, nation, ber jurisdic- allegedly reflecting she had driven to lack of the home of tion, a friend in City at the As failure to show defendant sane Tulsa. she parked car, crime, her alleged she noticed time of being another denial of parked near driveway. process. trial On Octo- and denial of due After she had home, entered the friend’s ber the said Motion to was her attention was attracted and defendant was ar- heard and overruled whom the for the Oklahoma from mute stood raigned, which defendant information, such quashing the fendant by the on entered plea guilty was of not by 22 appeal being authorized assigned trial and the case unless, as 1053. December, 1973, jury docket on prohibition court, proceed to consider writ shall now suggested Ap- Quash. sought in of Criminal said Motion ingredients pursue. did not peals, which the 407 U.S. Wingo, Barker Thereafter, continued case was 33 L.Ed.2d 92 S.Ct. request at times trial six different (6) States of the United Supreme at the two times of the defendant must the criteria which clearly forth sets both the defendant and request of of a in the determination be considered State Oklahoma. : trial issue on for Ultimately, came the case compels necessarily balancing test “A *4 The State announced 1974. October cases on approach speedy trial courts to responded, counsel ready. defense can do little more an ad basis. We hoc Hon- filed with Your have heretofore “We of factors identify than some the Information,” Quash Motion the or a to determining courts should assess proceeded extended observations with particular has been a whether posi- as as in reference thereto well other Though deprived right. his some of court, taken defendant. tions the ways, might express them in different previous considering and renewed motions Length identify such factors: we four defendant, thereupon announced its delay, delay, reason the the of the ruling as follows: right, his assertion of defendant’s the “The Court will sustain Motion to prejudice to the defendant.
“It is not Quash. my intention, and there has “A [*] fourth [*] factor [*] prejudice [*] [*] to the [*] case, jury course, been no in this dis- sworn be Prejudice, of should fendant. miss this such a case in manner that of light the interests assessed in the of prosecuted So, be right cannot the State. speedy the trial defendants which therefore, I protect. will sustain Motion to This Court has designed statute, Quash and I under our believe three such interests: (i) identified sustaining Quash incarceration; the a Motion to pretrial of prevent oppressive preclude prosecution does not should concern (ii) anxiety minimize of Appeals disagree Court of accused; possi- with (iii) limit the Therefore, my opinion. impaired. Motion bility that the defense will sustained, being days last, I will in ten these, be- most is the Of serious issue an order dismissal in if of the case inability ade- of a defendant cause prohibited doing so.” quately prepare case skews the system. If wit- fairness of the entire of sought State of Oklahoma writ delay, disappear during a nesses die or prohibition in Ap- the Court of Criminal prejudice . is obvious. peals P-74-778, in Case but the No. declined to assume March 1975. original jurisdiction on “We ‡ regard n none n ‡ the four [*] factors n necessary On March the trial identified above either court en- finding of a its tered final condition to order dismissal of the sufficient speedy deprivation right trial. discharging case and refer- ring Rather, factors and therein to are related its said order of October such with together 1974. It is considered from this final order that this must be appeal may be relevant. lodged has been other taken and circumstances herein basically some, factors no talismanic appeal by and is have these qualities; Hospital, must in a Eastern State engage originally still courts who ad- balancing process. difficult mitted and and sensitive interviewed the defendant was But, prejudicial a fun- most dealing because we are with to the defendant since Dr. accused, proc- right only person Peterson was damental who could recog- testify ess prob- must be carried out with full on first hand basis as to the in a nition that accused’s interest able mental condition of defendant at specifically shooting affirmed time of the fatal of his wife. Also, urges Constitution.” the death of prejudicial father was to him since his dismissing The trial action testify father could as to condition and against the defendant stated as follows: just prior reactions of the defendant . The finds the man- alleged act. ner in or- which said Defendant was dered confined to the Eastern Hos- applying particular facts and pital, Vinita, inwas violation of this circumstances the criteria rights process of Defendant’s to due Supreme which the Court of the United equal law and protection of law in States has established in the case of Bar trial; that he was denied ker, supra, the Court has come to the de delay bringing matter to trial termination that the of the trial has irreparable caused to said detriment error, court was bemust reversed. Defendant under rulings all, length delay First of in- States, Supreme of the United *5 years approximately stant six case was Indiana, the cases of Jackson vs. 406 U. nine months. is doubt that a de- There no 435; S. 92 32 L.Ed.2d S.Ct. lay length enough is to of such substantial Wingo, Barker vs. 514], U.S. S. [407 speedy the trial if anal- constitute loss of a 101]; Ct. 2182 L.Ed.2d Strunk vs. [33 ysis the other concludes that of factors 434], U. S. U.S. S.Ct. [412 [37 delay Secondly, such a was unwarranted. L.Ed.2d 56], the Court finds that said hospital- the for was the delay reason the against case this Defendant should be pending ization of the defendant his recov- dismissed, discharged the Defendant ery. Thirdly, during his the defendant his exception bond exonerated with to hospitalization rights his to never asserted such ruling given to the Okla- State of trial, however, speedy a this failure cannot homa.” heavily against the defendant be construed State, response The in grounds on particular Finally, in these circumstances. which the said predicated, dismissal was of a the crime with the loss defense to contends for two reasons that the defend- charged to which the defendant is due the right ant’s speedy to a trial was not violat- persons are death those who able to of all, ed because: delay First of was at defense, present this in substantial results request and for the benefit of the is, prejudice Supreme as the Court fendant, secondly suffi- there were not Barker, supra, in a to be suggested factor cient facts support to conclusion that heavily most in favor of the de- construed defendant actually prejudiced by was However, be mentioned it must fendant. delay. reasonable doubt Court entertains argument appears The It prejudice. to which the claim of the trial court to progress adhered in sustaining record that extensive mo- from the defendant’s predicated tion to describing dismiss of the de- *6 predi- speedy on which the issue of trial is attempt delay A to the trial in deliberate actually delay protects cated is a which hamper order to defense should be defendant, is benefit of the and for the weighed heavily government. against the delay it be that this then cannot said negli- such as A neutral reason more contemplation speedy of the within gence be or courts should overcrowded trial for the amendment which was written weighed heavily but nevertheless less purpose against protecting the citizen be since the ultimate should considered state Based on the above arbitrary action. responsibility for such circumstances reasons, the same con- this Court comes government rather must rest with the following in the clusion did the courts Finally, a val- than with the defendant. a cases held that defendant’s when reason, witness, missing id as a such had not been violat- rights to a trial justify appropriate de- should serve to result by delay the direct ed a which was lay.” in his inability to assist of the defendant’s First all said that in the in- it must be Mo., 502 Brown, S. own defense. v. way responsi- stant in case the State is no Pelosi, v. 96 (1973); 295 Genereux W.2d delay bringing the defendant ble 452, (1963); People v. 630 R.I. 192 A.2d maintained constant trial. The State 599, 650 Browry, Ill.App.3d 290 N.E.2d 8 hospital from communication with the (1972). time defendant committed until the was by vigorously argued upon immediately The contention time released and he was below, to which in the court hospital that the receiving notice from the adhered, upon Jack based trial court was competent to stand defendant was deemed
811
715,
1845,
Indiana,
ting
opposed
an
92
aside
information as
son
406 U.S.
S.Ct.
v.
subparagraph
upon question
the Su-
one under
a
(1972).
Jackson
812 Attorney District lowed; thereupon the
county court of McClain county to va-
of his inten-
open court
in
gives
cate the
setting
the in-
notice
aside
Criminal
the Court of
appeal to
dictment
reinstate
tion to
upon
and
this cause
Oklahoma,
and
docket,
proceed
Appeals
its
and to
State
though
Clerk
directed
requests
order
aside the
setting
had
indictment
ap-
said notice of
minutes
(Emphasis
been made.”
note on the
added)
never
accordingly, done.
is,
peal, which
also,
Barnett,
State
See
v.
60 Okl.Cr.
and adjudged
further ordered
and
2.
It is
Gray,
court should be as follows: is, therefore, BRETT, considered, Presiding (concurring in Judge It the Court adjudged: results) : ordered and (or the information results of this indictment) 1.That I concur decision as *8 pertains In- hereby filed herein be and the a “Motion same quashed pre-trial and set aside for formation” as a motion. In the the reasons set herein, findings forth in instant defendant has not case the been and, Court, therefore, ruling placed action in jeopardy; under facts he stand trial for District stated should Attorney, excepts, and exceptions are al- committed. offense was on notes the condition the de- interpretation. fendant’s loss his are of defense to fendant available for due progress death key of of the during witnesses to the existence the time addition which that as appears the defendant record hospitalized. notes it 19, 1966, May defendant staff mem- early maintained that another the death Dietsche, Peterson, ber, of Dr. a letter B. F. dictated Administrator of B.H. J. arrangements made to concerning the defendant. trial the State have the condition of brought appears that Dr. B. F. Peter- before It therefore proceedings pending only staff who relation to son was one member concluding that responsible charges. By case. criminal for the defendant’s present delay upon fault of the does not rest the defendant has failed to Since brief, say we do not that the appellee’s with an are we intend presented upon fault rests arguments therefore defendant. aware of prejudice As a matter fact mental pertaining his the defendant’s behalf delay. resulted from the illness is the sole for the allegedly has cause which then, only question necessarily defendant’s which re- death of father. mains, delay is: Whether or not the being Assuming for time purpose allowing trial for the the de- alleged by prejudice as was the defend- ability to his regain fendant to his assist ant, opinion this Court is still preparing “ap- is an counsel a defense deprived was not of his propriate delay.” The answer most as- right We reach this con- to a trial. suredly yes. alternative only would by analyzing the facts of clusion go criminal to trial to force a forth to the second criteria set relation is unable assist counsel when he Supreme by the of the United States defense, to ef- to allow him preparing Barker, supra, delay. the reason for the prosecution by vir- fectively evade criminal In relation to this which must nec- element persist insanity may present tue determining essarily be considered in an al- length of time. some unreasonable leged right denial of a defendant’s law, process light of due neither trial, Supreme in Barker desirable nor are above results are said: delay of a trial due to commanded. The length delay is “Closely related incompetence of the defendant the mental assigns justify government reason part necessary requisite is both a Here, too, weights delay. different process. delay very the criminal When assigned different should be reasons.