Ake v. State

• Decision Date: 13 July 1989
• Docket Number: No. F-86-579,F-86-579
• Citation: 1989 OK CR 30,778 P.2d 460
• Parties: Glen Burton AKE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 460

778 P.2d 460

Glen Burton AKE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-579.

Court of Criminal Appeals of Oklahoma.

July 13, 1989.

An appeal from the District Court of Canadian County; Joe Cannon, District Judge.

Glen Burton Ake, appellant, was tried and convicted of two counts of First Degree Murder and two counts of Shooting with Intent to Kill, in Canadian County District Court, Case Nos. CRF-79-302, CRF-79-303, CRF-79-304 and CRF-79-305, was sentenced to two terms of life imprisonment and two terms of two hundred (200) years, and appeals. AFFIRMED.

Irvin R. Box, Diane Clowdus, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Deputy Chief, Criminal Div., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

Appellant, Glen Burton Ake, was tried by jury and convicted of two counts of First Degree Murder (21 O.S.1981, § 701.7) and two counts of Shooting with Intent to Kill (21 O.S.1981, § 652), in Canadian County District Court, Case Nos. CRF-79-302, CRF-79-303, CRF-79-304 and CRF-79-305, before the Honorable Joe Cannon, District Judge. The jury set punishment during the second stage at life imprisonment for each count of First Degree Murder and two hundred (200) years imprisonment for each count of Shooting with Intent to Kill. Judgment and sentence was imposed accordingly. We affirm.

Appellant was first convicted of these crimes in 1980. He filed a direct appeal and his convictions were affirmed. Ake v. State, 663 P.2d 1 (Okla.Crim.App.1983). However, the United States Supreme Court, in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), reversed and remanded for a new trial. Appellant now appeals the convictions of this second trial.

The facts leading to these events began on October 15, 1979, while appellant and his co-defendant, Steven Hatch, were employed at a drilling company. Early that morning, Claude Lucas drove appellant and Hatch to work. On the way, the three stopped so appellant could do some target practice. After arriving at work, appellant and Hatch quit their jobs and borrowed Lucas' car, telling him they would return it later that afternoon. During the evening, appellant and Hatch drove to the rural home of the Richard Douglass family. Hearing the dogs bark, Leslie, the twelve-year old daughter, went to the front yard and asked appellant if he needed help. He asked for an address and she went inside to look it up in the telephone book. Appellant and Hatch entered the house under the pretext of using the phone, and after gaining entrance, both men pulled guns and told the family they would "blow their heads off" if they tried anything.

Richard and Marilyn Douglass, who were in various parts of the house, were forced into the living room, as was Brooks, their son. Marilyn and Brooks were led to their rooms to retrieve any money they had. They were returned to the living room, where all but Leslie were bound, gagged and told to lay face down on the floor. Leslie was then forced to show appellant and Hatch the "secret hiding places" of the family. Appellant tore the phones from their connections. He then demanded Leslie undress, and he and Hatch attempted to rape her. Appellant tried unsuccessfully a second time to rape her. After these attempts, she was told to dress and return to the living room, where she was bound, gagged and forced to lay face down on the floor. Hatch then covered the heads of all four of the Douglass family. Appellant sent Hatch to the car and told the family he didn't want to shoot them, but he didn't know if they could be trusted. After saying, "I'm sorry but dead men don't talk," he shot Brooks once, Marilyn once, Richard twice and Leslie twice and fled from the house.

The two children were able to untie themselves and drive to the house of a nearby doctor. The sheriff's office was summoned and upon arrival at the Douglass home, Marilyn and Richard Douglass were dead. A palm print of appellant was found in the house and the bullets recovered from the Douglass home were identical to those found at the site where appellant practiced shooting earlier in the day. In November, appellant and Hatch were arrested in Craig, Colorado. Hatch was wearing the wedding ring of Richard Douglass. Appellant was using a Visa credit card belonging to Marilyn Douglass. Mrs. Douglass' wedding ring was also recovered.

Before the second trial, defense counsel filed a motion asking that appellant be sent for testing regarding his competency to stand trial. Initially, after arriving at Eastern State Hospital, appellant was found to be incompetent. However, some months later, the attending doctors informed the court that appellant was competent to stand trial as long as he remained on his medication, which consisted of 1600 milligrams of Thorazine. A hearing was held to determine appellant's competency. The jury unanimously found appellant to be competent to stand trial.

At trial, appellant's sole defense was that of insanity at the time of the offense. Prior to trial, appellant requested that the trial court provide him access to a psychiatrist in order to prepare his defense. The court granted his request, and defense counsel contacted Dr. Hans Von Brauchitsch, who testified on behalf of appellant. Dr. Von Brauchitsch testified that appellant was very agitated and upset a few days prior to October 15, 1979. Appellant related to the doctor that he quit his job because of the "enemies" that were after him. When appellant left work that morning, he thought his imaginary enemies were trying to trap him. Dr. Von Brauchitsch stated that the voices in appellant's head directed him to the Douglass house and forced him to shoot them.

Dr. Von Brauchitsch also explained that appellant was suffering from paranoid schizophrenia. He stated that while the disease itself could not be cured, the symptoms of the disease could be treated with medication. However, when taken off the medications prescribed to treat the illness, appellant lapses back into a delusional state, or what appellant terms "the demon world." The doctor explained that appellant's condition had deteriorated over the past several years, and that appellant had been schizophrenic since between 1973 and 1975. When asked whether appellant could distinguish right from wrong on the day that the crimes were committed, Dr. Von Brauchitsch stated that appellant did not know right from wrong.

As his first assignment of error, appellant alleges a violation of his right to a speedy trial due to the six year delay between his first trial and his second trial. Appellant was first tried and convicted in 1980, and the convictions were subsequently overturned by the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The State then began proceedings to retry appellant, but during the course of said proceedings, delays occurred due to appellant's mental condition. The second trial was held in February, 1986.

To determine whether a violation of the constitutional right to a speedy trial has occurred, this Court has consistently adhered to the test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which requires consideration of the length of delay, the reasons for the delay, the party's assertion of his or her right to a speedy trial, and the degree of prejudice suffered by the party. See Johnson v. State, 761 P.2d 484, 487 (Okla.Crim.App.1988); Henderson v. State, 743 P.2d 1092, 1094 (Okla.Crim.App.1987).

The length of delay between the crime and appellant's second trial was approximately six years. Clearly, this delay necessitates an inquiry into the remaining factors. See Johnson, 761 P.2d at 487. There were several reasons for the long delay. Initially, we note that the State did not delay in bringing appellant to trial, as his first trial was held in 1980 and his second trial was held within one year of the United States Supreme Court's reversal. Clearly, appellant cannot complain of the delay between trials as United States v. Ewell, 383 U.S. 116, 121, 86 S.Ct. 773, 777, 15 L.Ed.2d 627 (1966), held that a defendant who obtains reversal of his conviction may be retried notwithstanding the delay incident to such legal proceedings. It is the delay between the Supreme Court's decision and appellant's retrial that concerns this Court. However, the record reveals that such delay was due largely to appellant's mental condition. Appellant was hospitalized several times to undergo testing to evaluate his competency.

The next factor to be considered by this Court is appellant's assertion of his right to a speedy trial. A motion to dismiss for lack of a speedy trial was filed by defense counsel on December 12, 1985, which was two (2) months before trial.

The last factor is the degree of prejudice suffered by appellant. Appellant urges that the long delay between the two trials prejudiced his defense because of his deteriorating mental condition. However, we find no prejudice especially in light of the fact that appellant was found competent and was able to function mentally due to medication prescribed for his illness. Appellant was able to present the defense of insanity at trial, and said defense was not hampered by the delay. Accordingly, this assignment is without merit.

Appellant also asserts that he was incompetent to stand trial. As the basis for this argument, appellant urges that "his chronic progressive mental disease" precluded him from being competent at the time of trial, and because his condition continues to deteriorate, appellant asserts he can never stand trial. In rebuttal the State points out that appellant was given a competency hearing, wherein both parties presented evidence regarding appellant's competence. The jury determined appellant was competent to stand trial.

Title 22 O.S.1981, § 1175.4(B) presumes the defendant is competent and...