*1 276 Stаte, 381, case, 1988); v. 753 P.2d 383 In the burglary charge instant the S.A.H. State, (Okl.Cr.1988); v. 751 P.2d G.E.D. underlying formed the basis for the murder 755, (Okl.Cr.1988); State, 757 Douma v. robbery and like the in Munson 1163, (Okl.Cr.1988); Troling
749 P.2d 1165 independent could sustain an conviс- (Okl.Cr. State, 168, 736 170-71 er v. P.2d kidnapping charge tion. Like the in Mun- State, 525, 1987); v. 736 P.2d 526 K.C.W. son, robbery charge the anwas extension (Okl.Cr.1987); State, v. S.R.S. 728 P.2d burglary the form the under- 515, (Okl.Cr.1986); State, Rogers 518 v. 721 lying the basis for murder conviction. (Okl.Cr.1986); 805, 807 v. Ring P.2d an independent could sustain conviction. 1085, 1086 cert. de 909, 1882, 103 nied 461 U.S. S.Ct. 76 (1983);
L.Ed.2d 812 and Jones v. 654 (Okl.Cr.1982).
P.2d We persuaded
now to abandon our rul
ings. Accordingly, is dis
missed.
Finding warranting no error modification convictions for reversal YOUNG, Appellant, Degree Degree First Murder First v. Robbery, and Sentences are Judgment AFFIRMED. The and Sentence for appellant’s Burglary viction is and REMANDED REVERSED Criminal with instructions to DISMISS.
LUMPKIN, V.C.J., and BRETT and
JOHNSON, JJ., concur. J.,
LANE, specially concurs.
LANE, Presiding Judge, specially
concurring: agree
I majority theory with the on the
and application matter. write explain why only
to further one of the two charges merged
additional charge. by majority,
murder As stated (Okl.Cr. P.2d
Munson 1988), cert. denied U.S. S.Ct. 102 L.Ed.2d very much
similar to instant defen case robbery,
dant was with armed kid
napрing and murder. We held that underlying felony was the for murder conviction and there
fore merged charge. with the murder
so doing, we said:
Because armed the ini- began
tial the chain of ultimately leading
events to the victim’s
death, merged this offense with the felo-
ny-murder p. conviction. Id.
We then found kidnapping
also an extension of and there-
fore form underlying did not basis charge. murder *2 find that
Because we
cause man-
reversal,
complete
dates
recitation оf the
necessary.
facts is not
Relevant facts will
required.
be set forth as
error,
In
ap
his first
pellant
inculpatory
asserts that
police
made
him to a
offiсial were erro
neously
at trial. The
admitted
record re
questioned
veals that
was
on
separate
three
occasions after commission
City
of the crimes
Oklahoma
Police
County jail,
detective at
the Oklahoma
where
was
connec
tion with an unrelated offense.
years
time,
was seventeen
оld at that
as
day
During
he on the
of the crimes.
was
interviews, appellant
the second and third
gave detailed accounts of his involvement
in the
and assault for which he
was convicted. It was not until after these
confessions were obtained
crimes.1 We
also note that
evidence introduced at trial which
linked him to the сase at bar. Because
Defender,
Gelvin,
Pete
Asst. Public
Okla- appellant
had not been
with
Office,
County
Defender’s
homa
Public
crimes at the time he
his
City,
Oklahoma
for
„
statements,
questioning
and because the
not conducted in accordance
with
Gen.,
Henry, Atty.
H.
Sandra D.
Robert
1109(A),
O.S.Supp.1982,
he contends that
§
Howard,
Gen.,
City,
Atty.
Asst.
Oklahomа
it
error to admit his confessions at
appellee.
for
agree.
trial. We
Title 10
OPINION
vides:
PARKS, Judge:
by questioning
gained
No information
subsequently
any
child nor
evidence
ob-
Young, appellant,
was tried
information
tained as a result of such
Robbery
by jury for the crimes of
with
into evidence
shall be admissible
Battery
Firearms and Assault
questioning
the сhild unless the
about
Dangerous Weapon in the District Court of
any alleged
by any
offense
law enforce-
County,
Oklahoma
Case No. CRF-85-4291.
presence
is done in thе
ment officer ...
jury
guilty
returned a verdict of
on
attorney,
parents, guardian,
of the
punishment
forty-five
each count and set
of the child.
legal custodian
(45)
(10)
years
yеars imprisonment,
and ten
terms,
lim-
respectively.
ap-
The trial court sentenced
Section
By its own
A
jury’s
questioning
of a child.
pellant
accordance with
ver-
ited to the
dict,
“any person
as
under
ordering his sentences be served con-
“child” is defined
(18)
except
any
secutively.
eighteen
years
age,
From these
Sentеnces,
perfected
ap- person
has
sixteen
peal.
who is
"placed
and Warrant were
claimed to have
that both the Information
the detective
1-5)
charge"
(O.R.
appellant at
the conclusion of
after the third interview.
executed
(Tr. 140),
second interview
the record reveals
information
use of
enumerated offense
with
subject
firearm or other offensive
while which is the
matter of
prosecu-
felony-”
tion
compliance
not in
1984, 1101(1)(emphasis
Further-
A.M.H. v.
morе,
provides:
an O.S.B.I.
*3
agent
juvenile
“visited” with the
appellant
or
Any person sixteen
seventeen
several
before
is
minutes
told that the
who
give
Ap-
to
a
wished
cоnfession.
pellant’s
brought
mother was then
into the
use of firearm or
offensive
room,
parties
while
... shall be
both
were advised
their
Upon
and
rights,
considered as an adult.
the arrest Miranda
to
confessed
detention,
sixteen-
and
such
or seven-
In analyzing
Murder.
teen-year-old accused shall have all the
period
during
agеnt
time
“vis-
statutory and constitutional
and
appellant,
ited” with
this Court
that
stated
protections
adult
of an
accused of
reverse
had
certification meсhanism
“[t]he
crime....
yet
operate,
not
commenced to
no
because
yet
against
had
filed
been
moment,
At that
was a
(Okl.
Highsaw
Having concluded that Au- admitted, gust appears 16 and 20. erroneously were we confessions jailer error оfficer not advise the to add the now determine whether such must charges giving right to a fair trial. rise to these convictions un- prejudiced appellant’s partic- til after the previously 3001.1. As admitted his See noted, ipation in the crimes. The facts appellant’s confessions were the reveal the linked him officer knew of the status of the only evidence introduced which must, therefore, procedures and failed to follow the mandat- case. We this cause to the ed thus ren- REVERSE аnd REMAND dering the and instruct it to DISMISS confession inadmissible district court Appellant. the same. *4 BRETT, J.,
LANE, P.J., and concur. JOHNSON, J.,
LUMPKIN, V.P.J., and
concur in result.
LUMPKIN, Presiding Judge,
concuring in results: While I must concur in the results PROBST, Appellant, William Franklin reached the Court in this case based on decisis, join stare cannot the Court’s special protections af- statement “that the of children under are
forded the arrest or detention of charging Court of Criminal nile an unrelated crime”. provisions The Rehearing April Denied 1104.2(A),provide “[a]ny person six- teen of the enumerat- with [one оffenses],
ed adult”, shall be considered as an added.) The statutes regarding
do not create a distinction
treatment of these offenders as taking
it relates to the of statements after words,
they “charged”. are once with an enumerated
offense, then enforcement officers can law juvenile regarding both enu- offenses,
merated and nonenumerated if
the constitutional juvenile.
an adult are afforded to the Appel-
The record in this case reveals the previously charged
lant had been and de- robbery by
tained for the offense fear, an offense not listed in Section awaiting transportation and was detention center. There-
fore, charging and detention of the
Appellant on used that offense cannot be
as the basis for the admission of the state-
ment this case. record also reveals