M. E., Matter of

• Citation: 584 P.2d 1340
• Decision Date: 22 February 1978
• Docket Number: No. J-77-512,J-77-512
• Parties: In the Matter of M. E., a child under the age of 18.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1340

584 P.2d 1340

In the Matter of M. E., a child under the age of 18.

No. J-77-512.

Court of Criminal Appeals of Oklahoma.

Feb. 22, 1978.

Rehearing Denied March 17, 1978.

Certiorari Denied May 22, 1978.

See 98 S.Ct. 2271.

An appeal from the District Court, Creek County; Streeter Speakmen, judge.

M. E., appellant, appeals from an order certifying him to stand trial as an adult. The certification is AFFIRMED.

Baker, Baker & Martin, Jay C. Baker and C. Rabon Martin, Tulsa, for appellant.

David Young, Dist. Atty., Sapulpa, for appellee.

OPINION

BUSSEY, Presiding Judge.

M.E., a juvenile, appeals from an Order of the Juvenile Division of the District Court, Creek County, Case No. J-77-34, waiving jurisdiction over him and certifying him to stand trial as an adult for the offense of Murder in the First Degree.

Briefly stated, the facts adduced at the hearing are as follows. On April 4, 1977, M.E., hereinafter preferred to as the juvenile, age 16, and Gary Molt, age 14, ran away from their homes in Camdenton, Missouri. The juvenile apparently took three of his father's rifles two .410 shotguns, and a .30-.30 rifle. The two boys drive to Joplin, Missouri where they picked up the juvenile's sister, Rhonda Eddings, and her friend Terry Clevenger, both age 14. The four then headed west on Interstate 40 in their red Volkswagen.

Just before getting onto the Turner Turnpike in Tulsa, the juvenile, who had driven the entire time, stopped to pick up a hitchhiker, Timothy Wayne Thomas, who got into the front passenger's seat. After stopping for a coke and to use the restroom at a concession stop on the Turner Turnpike, the juvenile lost control of his vehicle which went over a curb into a barrow ditch before the juvenile could regain control and pull it back onto the highway. Shortly thereafter a highway patrol car was observed following them and the juvenile was heard to say, "If that cop hassles me, I'm going to shoot him." When the highway patrol officer turned on his red light, the juvenile grabbed a sawed-off shotgun from the back seat, loaded it and cocked it. He then stopped the car and awaited the approach of Trooper Crabtree. When the officer was but a few feet away the juvenile stuck the gun through the open window and shot him in the chest. The juvenile then drove away, directing his friends to throw the other guns out of the vehicle as he did the same with the death weapon.

Another highway patrolman, Joe J. Inman, proceeding in the other direction, observed Trooper Crabtree approaching a red Volkswagen but concluded that he was only involved in a stop for a routine traffic violation. Shortly thereafter he received a call for help over the radio, reporting a wounded officer. After returning to the scene, Officer Inman started to pursue the red Volkswagen. The juvenile was subsequently arrested.

During the second stage of the certification hearing dealing with the question of the juvenile's amenability to rehabilitation within the juvenile system, Dr. R.D. Garcia, M.D., the chief forensic psychiatrist at Eastern State Hospital, and Dr. H. Brent Dietsche, Ph.D., a clinical psychologist at Eastern State Hospital, testified that the juvenile knew the difference between right and wrong and was capable of understanding the consequences of his actions. Furthermore, Dr. Garcia went on to state that the juvenile had no mental disorder but had an anti-social personality which he asserted was not amenable to treatment in the medical sense. Dr. Garcia and Mr. Don McAllister, an intake counselor for Court Related and Community Services, both stated that, in their opinion, the juvenile was not amenable to treatment within the juvenile system.

Furthermore, the court had before it evidence of the juvenile's record in the State of Missouri. Mr. Stephen Dorn, juvenile officer for the 26th juvenile district, State of Missouri, testified that the juvenile was first referred to his office in November of 1975, after having been charged with four counts of burglary, second degree, and one count of tampering with a motor vehicle. A petition was filed against the juvenile on the 28th of November, 1975, he was found a delinquent and made a ward of the court. A supplementary petition was filed against the juvenile on September 17, 1976, for assault with intent to do bodily harm. Finally on November 21, 1976, while he was still living in the "group home" a petition was filed against the juvenile for "burglary second degree and stealing." Mr. Dorn testified that the juvenile's conduct in the "group home" steadily worsened until he was sent back to the custody of his parents. Mr. Dorn stated that the Missouri juvenile rehabilitation system failed with the juvenile and asserted that he knew of no juvenile program in Missouri capable of rehabilitating him.

The juvenile presented two witnesses on the issue of amenability to rehabilitation: Dr. Richard Pearson Rettig, Ph.D., an associate professor of behavioral science at Oral Roberts University, and Dr. Anthony C. Gagliano, D.O., an osteopathic physician specializing in psychiatry. Both asserted that the juvenile could be rehabilitated. Furthermore, Dr. Gagliano asserted that at the time of the shooting, the juvenile did not know the difference between right and wrong.

The juvenile's first assignment of error concerns three aspects of the right to counsel. Counsel for the juvenile contends that he was not given adequate time to prepare, that he was denied any opportunity for confidential conference with his client, and that he was not given access to certain reports which were introduced into evidence by the State during the testimony of Stephen Dorn.

First, it is necessary to closely examine the chronology of events relative to the issue at hand. On April 4, 1977, the juvenile was arrested for the murder of Trooper Crabtree. ¹ On April 5, 1977, the juvenile accompanied by his parents, Ronnie Eddings and Mary Kenny ², appeared before the Honorable Streeter Speakman, Associate District Judge, Creek County, whereupon hearing of the State's motion for certification of the juvenile was set to begin on the 8th of April, 1977. ³

The juvenile's parents were given a copy of the petition and motion for certification. ⁴

At said hearing on the 5th of April, the juvenile's parents agreed to diligently seek counsel in order to expedite the hearing. ⁵ On April 6, 1977, the juvenile's parents contacted Mr. J. Baker to arrange for him to represent the juvenile in this case. ⁶ Mr. Baker called the District Attorney's Office on the 7th of May and left word for District Attorney Young to call him, but apparently made no further attempt to inform himself of the proceedings. ⁷ On the morning of April 8, 1977, Mr. Baker consulted with the juvenile for the first time at the Creek County Jail, although apparently not using all of the time which was made available to him. ⁸ Furthermore, Mr. Baker declined an opportunity to consult with the juvenile during the noon recess before the State put on its evidence. ⁹

After the noon recess, Mr. Baker was given leave by the court to file any motions at a later date. ¹⁰ Furthermore, the day's hearing was limited to the evidence concerning prosecutive merit, ¹¹ and the juvenile was to be permitted any reasonable continuance before putting on evidence to rebut prosecutive merit. ¹² After the State presented its evidence on prosecutive merit and rested, the hearing was continued for approximately eight weeks, during which time the juvenile was committed for diagnosis and evaluation at Eastern State Hospital. ¹³ When the first stage of the hearing concerning prosecutive merit was reconvened on the 6th of June, 1977, the juvenile declined to put on any evidence concerning this matter, ¹⁴ and the second stage of the hearing was commenced to determine the juvenile's amenability to rehabilitation within the juvenile system.

Also, it is important to note that the proceeding involved here was the hearing of a motion to certify the juvenile and not an adjudication of the offense charged. In Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the Supreme Court ruled in reference to a hearing such as this:

"We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing . . ."

While we recognize that even in a hearing such as this, the juvenile is entitled to effective assistance of counsel (Kent v. State, Supra), we are of the opinion that the time required to prepare for the proceeding need not be the equivalent of that required for a trial or even a juvenile adjudicatory proceeding. Therefore, the cases cited by the juvenile relating to adequate time to prepare for Trial are of little or no precedential value here.

In the instant case, the first day of the hearing was limited to evidence concerning prosecutive merit and only the State was required to put on such evidence at that time. The juvenile's attorney was contacted on the 6th of April, 1977, and it would appear that he had ample opportunity to consult with Judge Speakman, District Attorney Young and the juvenile between then and the time of the hearing on the 8th of April had he diligently sought to do so. Furthermore, the juvenile's attorney was present at the hearing on the 8th of April and carefully cross-examined the witnesses presented by the State. In view of the limited nature of the hearing on the 8th of April and the fact that the juvenile was allowed an 8 week continuance before being asked to put on evidence relating to prosecutive merit, we find that counsel for the juvenile had adequate time to prepare for the hearing.

With regard to the lack of any opportunity for private conversation, counsel for the juvenile alleges that when he first went to speak with the juvenile in the Creek County jail, he was denied any access to the juvenile "because of 'orders of the...