Anderson v. State
| Decision Date | 21 June 1976 |
| Docket Number | No. F--75--433,F--75--433 |
| Citation | 551 P.2d 1155 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
| Parties | Luther ANDERSON, Appellant, v. The STATE of Oklahoma, Appellee. |
Appellant, Luther Anderson, hereinafter referred to as defendant, was charged in the District Court, Sequoyah County, Case No. CRF--74--69, with the offense of Murder in the First Degree; defendant was convicted of the offense of Murder in the Second Degree and sentenced to serve a term of Ten (10) years to life in the custody of the Department of Corrections. From said judgment and sentence a timely appeal has been perfected to this Court.
At the trial, Dovie Duty, age seventy-eight, testified that on July 2, 1974, she was living with her son Clarence Duty in Muldrow, Oklahoma. She related the day's events, including the visit of the defendant during the afternoon. They left the home together and Clarence returned approximately an hour and a half later by himself. He ate his supper and went to bed shortly before 10:00 p.m. At approximately 10:30 p.m. she heard a knock on the door and upon opening the door found the defendant standing outside. Defendant said, 'Where's Clarence?' She replied, 'Well, he is in there in the bed maybe asleep.' Defendant said, 'I'm going to kill the God-damned Son-of-a-Bitch, and then I am agonna kill, I'm agonna rape you and eat your face all to pieces and kill you.' (Tr. 332) She testified that she had an axe sitting near the duofold in the front room of the house and further related that the defendant had been present when her son sharpened the axe. The only thing that she remembered after that was defendant having her on the bed where Clarence had been lying. She testified that she was injured and spent three weeks in the hospital recovering from her injuries.
Roger Duty, age fourteen, testified that he lived in Muldrow a couple of blocks from his grandmother Dovie Duty. He had been acquainted with the defendant for approximately three weeks. His younger brother Bobby went to his grandmother's house at approximately 10:10 p.m. and returned shortly thereafter. He went to his grandmother's house to investigate and found his uncle with an axe in his head and his grandmother sitting on a bed in the back bedroom. The defendant came into the room, knocked him down and jumped on his grandmother. Defendant then chased him from the house threatening to kill him if he returned. He testified that the defendant was covered with blood. He ran down the road and informed his mother of his observations.
Helen Duty testified that she went to Dovie Duty's house at approximately 10:15 p.m. after having learned of some trouble through her son, Bobby. Upon entering the house, she observed the defendant come out from the back bedroom door. Defendant threw something at her and she tripped over a coffee table. Defendant grabbed her, forced her outside and raped her. Defendant advised her that he had killed Clarence and tried to have intercourse with 'grandma.' (Tr. 368) She managed to escape from the defendant and was subsequently taken to the hospital.
Dr. William Wilson, Sequoyah County Medical Examiner, testified that he observed the body of Clarence Duty on the evening of July 2, 1974, at Duty's home in Muldrow. Duty was dressed in a T-shirt with brief shorts and had a double bitted axe imbedded in the left side of his head. He testified that he was present the following day when an autopsy was performed and stated that the cause of death was 'multiple, massive axe wounds to the head.' (Tr. 384)
State's Exhibit No. 3 was identified as the double bitted axe which was removed from the head of Clarence Duty.
Robert Bean, an investigator for the District Attorney's Office, testified that he assisted in the investigation of the homicide at the Duty residence. He identified two pictures of Dovie Duty which were taken at the hospital approximately two weeks after the incident, and State's Exhibit No. 3, the axe.
Sheriff Ade Walters testified that he also assisted in the investigation at the Duty residence. He described his observations of the residence and identified certain items of evidence.
Jim Lowder, the City Marshall of Muldrow, testified that he was called to the Duty residence on July 2, 1974, some time after 10:00 p.m. He observed Dovie Duty standing in the yard bleeding profusely from the face. He searched the immediate area for the defendant. While conducting the search, a nurse from the nearby nursing home attracted his attention. Upon entering the nursing home, he found the defendant lying in a bed with the covers over him.
The defense called Dr. Joseph Dorzab, a psychiatrist, who testified that he was appointed by the court to examine the defendant. That as a result of his examination he found that the defendant had brain damage, a lower than normal intelligence, was illiterate, unskilled and an alcoholic. He testified that the defendant was subject to rage reactions after consuming alcohol. The defendant understood right from wrong and was able to understand the judicial system, with one exception, that being that he had a definite loss of memory for July 28 1974. In response to a hypothetical question which generally covered the testimony of the State's witnesses, the doctor testified that in his opinion the defendant would not have known right from wrong on the night in question.
Stella Mitchell testified that she was living in a nursing home in Muldrow on July 2, 1974; that the defendant came into her room and was covered with blood. He got into a bed and pulled the covers up over his head as if to hide. She testified that in her opinion the defendant was doped.
Sheriff Ade Walters testified that he was present at the preliminary hearing and that Dovie Duty had some difficulty in identifying the defendant.
In rebuttal, Dr. Lorraine Schmidt, Chief of the Department of Forensic Psychiatry at Central State Hospital, testified that her institution examined the defendant from July 3, 1974 until July 18, 1974; that, in her opinion, defendant did not have brain damage and was not psychotic and was able to determine right from wrong.
Leo Matlock testified that he assisted in the arrest of the defendant on the evening of July 2, 1974. He transported the defendant to Sallisaw from the nursing home. He further testified that he did not notice anything unusual or abnormal about the way the defendant acted.
Roger Duty and Helen Duty both testified that the defendant did not appear to be abnormal on the night in question, but rather appeared to have been frightened.
In the first assignment of error it is asserted that the trial court erred in failing to sustain defendant's first Demurrer to the Information. Defendant complains that the Information fails in two aspects, first, the death of Clarence Duty was not the result of the attempted rape of Dovie Duty, therefore making the Murder in the First Degree Statute, 21 O.S.Supp.1974, § 701.1 inapplicable and secondly that the Information does not detail the acts that the defendant allegedly performed on Dovie Duty which would constitute an attempted rape. We disagree. The Information states, in part, as follows:
'. . . That is to say, the said LUTHER ANDERSON in the County and State aforesaid, and on or about the date aforesaid, then and there being, did then and there unlawfully, wilfully and feloniously, without authority of law and with a premiditated design to effect the death of one Clarence Eugene Duty, the said LUTHER ANDERSON did while being then and there engaged in attempting to commit the crime of Rape by then and there unlawfully, wilfully and feloniously with the use of force and violence to Dovie Duty, a female person not the wife of the said defendant, overcome all resistance on the part of the said Dovie Duty and did then and there attempt to rape, ravish, carnally know and have sexual intercourse with said Dovie Duty against her will and consent, did kill the said Clarence Eugene Duty by striking him in the head with an axe causing mortal wounds in the body of the said Clarence Eugene Duty from which mortal wounds the said Clarence Eugene Duty did languish and die . . .'
We are of the opinion that the above stated Information meets all the requirements of 21 O.S.Supp.1974, § 701.1 which states in pertinent part:
'Homicide, when perpetrated without authority of law and with a premeditated design to effect the death of the person killed, Or of any other human being, is murder in the first degree in the following cases:
1. * * *
2. When perpetrated by one committing or Attempting to commit rape, kidnapping for the purpose of extortion, arson in the first degree, armed robbery or when death occurs following the sexual molestation of a child under the age of sixteen (16) years;
* * *' (Emphasis added)
We are of the opinion that the Legislature intended to cover the contingency of killing a third person while attempting to rape another.
We further observe that the Information sufficiently informs the defendant of the offense with which he is charged with such particularity as to enable him to prepare for his trila, and so defines and identifies for his trial, and so defines and identifies he would be able to defend himself against any subsequent prosecution for the same offense. See Bennett v. State, Okl.Cr., 492 P.2d 340 and Tolleson v. State, Okl.Cr., 400 P.2d 576. We, therefore, find this assignment of error to be without merit.
In the second assignment of error it is contended that the trial court erred by failing to sustain defendant's plea in abatement, motion to quash and set aisde the information. Defendant argues that this assignment should be sustained for the same reasons as set forth in the first assignment of error. We likewise find this assignment...
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