736 P.2d 541 (Okla.Crim.App. 1987), F-84-115, James v. State

Docket Nº:F-84-115.
Citation:736 P.2d 541
Party Name:Terrance JAMES, Appellant, v. The STATE of Oklahoma, Appellee.
Case Date:April 29, 1987
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 541

736 P.2d 541 (Okla.Crim.App. 1987)

Terrance JAMES, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. F-84-115.

Court of Criminal Appeals of Oklahoma.

April 29, 1987.

Rehearing Denied May 28, 1987.

Page 542

Gerald R. Miller, Muskogee, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry, Asst. Atty. Gen., Oklahoma City, for appellee.

BRETT, Presiding Judge:

Appellant, Terrance James, was convicted in the Muskogee County District Court in Case No. CRF-83-64, for the offense of First Degree Murder. He was assessed to suffer the death penalty by the jury in the second stage of his trial. He was represented by counsel and was tried by jury with his co-defendant, Sammy VanWoundenberg. VanWoundenberg's conviction is reported in VanWoundenberg v. State, 720 P.2d 328 (Okl.Cr.1986). From his conviction for First Degree Murder, appellant lodged this appeal. Oral Argument was held March 22, 1987.

Mark Allen Berry was strangled to death around 4:30 a.m. on February 6, 1983, in the Muskogee City-Federal Jail. Mark Allen Berry, Dennis Brown, and appellant had been arrested for a federal charge of theft of government property, and were incarcerated together in the Muskogee City-Federal Jail. Brown and appellant believed that Berry was responsible for their arrest. On February 5, 1983, they were discussing beating on Berry when Sammy VanWoundenberg joined in the discussion. Brown testified that VanWoundenberg urged them to strangle Berry and hang him to make the death appear to be a suicide. VanWoundenberg then provided a wire from a broom and demonstrated how to use it to strangle Berry. Early the next morning VanWoundenberg entered the cell of Brown and appellant and asked if they were ready; he then stuck a piece of paper over the lens of the surveillance camera. Brown then got Berry to play cards with him, and when they were playing, appellant walked up behind Berry, wrapped the wire around his neck and strangled him while Brown held the victim's feet and placed his hand over Berry's mouth.

Another inmate testified that he heard VanWoundenberg warn appellant and Brown that someone was coming. So, appellant

Page 543

pulled Berry into that inmate's cell and continued the strangulation. After Berry appeared to be dead, appellant, Brown and VanWoundenberg hung Berry's body in a shower stall.

In his first assignment of error, appellant asserts error was committed when the court failed to appoint a psychiatrist to determine his competency to aid in his defense. The record reflects that appellant's attorney filed a motion with the trial court to have him examined to determine his competency. The court did enter an order, and appellant was transported to the Eastern State Hospital at Vinita, Oklahoma, for examination. At the conclusion of that examination, the psychiatrists certified that appellant was competent to stand trial. No request was made by appellant to have him examined to determine whether or not he could distinguish between right and wrong at the time of the offense. Likewise, the record fails to reflect that appellant made an ex parte showing that his sanity was a significant factor in his defense. Instead, appellant's defense relied on the contention that he was under the influence of drugs when the offense occurred. This Court stated in Liles v. State, 702 P.2d 1025, 1033 (Okl.Cr.1985):

Under certain circumstances, the State may be obligated to provide an indigent defendant with access to competent psychiatric assistance in preparing his or her defense. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). To trigger this process, the defendant must demonstrate "to the trial judge that his sanity at the time of the offense is to be a significant factor at trial."

The record before this Court fails to reflect that such "significant factor" was ever presented to the trial court. Appellant's case is readily distinguishable from that of Ake. Therefore, appellant's first assignment is found to be without merit.

In his second assignment of error, appellant asserts that the court committed an abuse of discretion in denying appellant a severance from the co-defendant...

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