Bauhaus v. State, F--74--535

Decision Date19 February 1975
Docket NumberNo. F--74--535,F--74--535
Citation532 P.2d 434,1975 OK CR 34
PartiesJames Scott BAUHAUS, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

BUSSEY, Judge:

Appellant, James Scott Bauhaus, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Tulsa County, Case No. CRF--73--24, for the offense of Murder in violation of 21 O.S.1971, § 701(1). The jury fixed his funishment at Life imprisonment, and from this judgment and sentence his appeal has been perfected to this Court.

At the trial, the first witness called for the State was Dr. Robert Fogel, Director of Laboratories and Chief Pathologist at the Oklahoma Osteopathic Hospital in Tulsa, who testified as an expert in forensic pathology. This witness established that on October 17, 1972, he performed an autopsy upon the body of Jefferson Dee Hunt, and that death was the direct result of a bullet wound to the chest inflicted at moderately close range. The extracted bullet was initialed and released to D. A. Roberts, with the Tulsa Police Department.

The second witness to testify was Dorothy Hunt, the widow of Jefferson Dee Hunt. She identified the defendant as the person who shot her late husband when she and the victim returned to their residence in Tulsa at about 2:45 p.m. on October 17, 1972. She further related that upon discovering the defendant in their residence, her husband approached him and asked for the gun which the defendant held in his hand. The gun discharged when her husband was close to the defendant, and her husband fell to the floot unconscious. The defendant then dropped the gun, stepped over her husband, hesitated a moment, and then ran out the back door breaking the glass in the storm door as he fled. She then telephoned for the police and an ambulance, and found that the residence had been ransacked. The witness also identified State's Exhibit No. 1 as the gun which her husband had kept loaded in their bedroom.

The next witness for the State was Mrs. Jack Baker, who identified the defendant as the person she had seen running quite fast and repeatedly examining his left arm shortly after 2:35 p.m. on October 17, 1972, while she was parked in her automobile.

The fourth witness for the State was D. A. Roberts, a Police Officer with the Tulsa Police Department assigned to the Homicide Division. This witness identified State's Exhibit No. 2 as the bullet he had received from Dr. Robert Fogel.

The next witness was Bill Yarbrough, a Police Officer with the Tulsa Police Department assigned to the Identification Division. This witness identified State's Exhibit No. 1 as a .22 caliber Ruger revolver found at the scene of the crime, State's Exhibits Nos. 3 through 19 as photographs of that scene, and State's Exhibit No. 21 as a screwdriver also found in a bedroom at that location. Also, the witness established that the end of the screwdriver was of the same width as pry marks appearing on the backdoor frame of the victim's residence, and had paint chips on it resembling the paint on the door frame.

The final witness for the State was Jess McCullough, a Police Officer with the Tulsa Police Department also assigned to the Homicide Division, who testified as the chief investigating officer in this case. He first overheard a radio dispatch regarding the offense at 2:39 p.m. on October 17, 1972, whereupon he proceeded to the victim's residence. There he observed what appeared to be blood spots near the backdoor, upon the chain link fence in the back yard, and upon the sidewalk leading to where Mrs. Jack Baker was parked two blocks away. To the knowledge of this witness, no blood specimens had been analyzed, and although numerous latent fingerprints were found at the scene of the crime, none matched those of the defendant.

Judy Cole testified as the only defense witness that the defendant was her husband's cousin, and that shortly after 2:00 p.m. on the date of the subject offense, the defendant came alone to their home to visit and remained there until about 10:00 p.m. that evening. This witness fixed the time by reference to a television program, and the date because she had just returned from shopping with a girlfriend for a birthday present in preparation for the birthday of her friend's father the next day. Also, the witness testified that she did not at this time observe any cuts or injuries on the defendant. On cross-examination she testified that she was alone with her small child when the defendant arrived, but that her husband then arrived shortly before 5:00 p.m. Also the girlfriend and her husband came to visit at about 5:30 p.m. and remained until the defendant departed. Her testimony also established that she had contact with each of these other people shortly prior to trial and knew their whereabouts, and that they were available locally. This witness further testified that she first learned the defendant was charged with this offense while reading the Tulsa Tribune in the latter part of November or early part of December, 1972. That same evening she advised the defendant's father where he had been on October 17, 1972, however, she did not report this alibi to any law enforcement authorities until about a week before trial.

The defense then rested and Lucille Towry was called by the State as the only rebuttal witness. This witness testified that she was Librarian for the Newspaper Printing Corporation, and that her duties included the care and custody of newspaper articles for both the Tulsa World and Tulsa Tribune. She further testified that she had brought with her newspaper clippings concerning the subject homicide. Although she had not specifically examined all these articles, she testified that none of those concerning the death of the victim mentioned the name of the defendant, and none concerning the defendant mentioned that he was charged with the murder of this victim.

In rebuttal the State was also permitted to introduce the preliminary Information as State's Exhibit No. 22 for the purpose of establishing that the defendant was not charged herein until after the alibi witness purportedly read of the charges in the newspaper. No further evidence was introduced in behalf of the defendant.

The defendant asserts in his first proposition of error that the trial court erred in failing to dismiss the charge on the grounds that he was denied his right to a speedy trial under the Sixth Amendment to the United States Constitution and Article II, Section 20 of the Oklahoma Constitution.

The preliminary Information herein was filed January 3, 1973, and a warrant was issued the same day. However, not until April 9, 1974, did the State cause a Writ of Habeas Corpus Ad Prosequendum to be issued, and the defendant was brought before the trial court the following day from Osage County where he had been held on unrelated charges. The defendant readily admits that the prosecution then proceeded with expediency, but contends that the failure of the State to undertake to secure his appearance from Osage County during the 15 month period prior thereto resulted in a denial of his right to a speedy trial.

At the hearing on the defendant's motion to dismiss, the Assistant District Attorney admitted that his office was aware the defendena was previously being held in the Osage County jail on unrelated murder charges, but asserted that the defendant had been engaged in lengthy hearings there, that to shuffle the defendant between the two adjoining counties on separate murder charges would have interfered with the defendant's right to a fair and impartial trial, and that the defendant had not previously requested that this charge be set for trial.

The principles and guidelines for resolution of this proposition were set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Here, the United States Supreme Court recognized the unique and amorphous nature of the right to a speedy trial as compared to other constitutional guarantees. This is for the reason that both society and the defendant have an interest in the prompt disposition of criminal proceedings, deprivation of the right may, however, be advantageous to the defendant, and being incapable of quantification, there is no precise point at which the right is denied. In the application of the right the court then rejected as inflexible, both the fixed time period approach since this would require more than the Constitution, and the demand waiver approach for the reasons hereinafter discussed, and seized upon a functional analysis approach to each case, and stated at pages 530 and 533, 407 U.S., at pages 2191--2193, 92 S.Ct.:

'The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed.

'A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors . . .. Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

'We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.' (Footnotes omitted)

We will here consider the length of delay and the reason for the same together. In this regard, the State has...

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