Bias v. State, F--75--365

Decision Date16 February 1977
Docket NumberNo. F--75--365,F--75--365
Citation561 P.2d 523
PartiesThomas Andrew BIAS, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

PER CURIAM.

Appellant, Thomas Andrew Bias, hereinafter referred to as defendant, was charged conjointly with five co-defendants in the District Court, Creek County, Case No. CRF--74--123, for the offense of Murder in the First Degree, in violation of 21 O.S.Supp.1973, § 701.1(2). Defendant was tried separately, convicted and sentenced to death. From said judgment and sentence a timely appeal has been perfected to this Court.

At some dark hour during the night of June 19--20, 1974, Mrs. Susan Bush, an elderly Creek County widow, died. Her body was found among charred remnants of her fire-destroyed house, submerged in a water-filled bathtub, an electrical cord binding one arm and three stab wounds in her neck.

Four weeks later the 17--year-old defendant was arrested on a charge of intoxication and was questioned by police for two to three hours. Some hours later, Clifford Rame, a co-defendant, was arrested and his statement implicated the defendant in the death of Mrs. Bush. He said that the defendant slashed her throat. Four other co-defendants were arrested. Two of them, the defendant and Jess Henson, were convicted of murder in the first degree. Two others pleaded guilty to manslaughter in the first degree, and the final two co-defendants received immunity from prosecution to testify at the defendant's trial.

One witness testified he purchased five guns from Henson which were delivered by the defendant, and one of those guns was later identified as belonging to the victim. Another witness said that the defendant admitted he had cut Mrs. Bush's throat.

Clifford Rame, the key prosecution witness, testified that following an evening of drinking and drugs he, the defendant and three others, acting upon the instructions of Jess Henson, went to the rural home of Mrs. Susan Bush. He said the defendant used a ruse to gain access to the house, then held a gun on Mrs. Bush and demanded money. When she denied having any money and a search of the premises proved fruitless, the victim was held under water in her bathtub for periods of time to force her to disclose the hiding place. Following further denials regarding a hiding place, a kitchen knife was used to end her life. Rame said the five ransacked her house, taking several items, including guns, left to get gasoline, and then returned and set her house on fire.

Defendant's first assignment of error is in substance that he was denied a speedy trial. He notes he was arrested on July 18, 1974, but not brought to trial until May 20, 1975. During this period of time there was a certification hearing, mental examination, preliminary hearing, and arraignment. Defendant twice moved the trial court for severance. Over objection of defendant venue was changed to Muskogee County on November 8, to Tulsa County on January 8, and later to McIntosh County on February 21, 1975. On a writ of mandamus (State of Oklahoma ex rel. Young v. Warren, Okl.Cr., 536 P.2d 965 (1975)), this Court sent defendant's case back to Creek County on March 7, 1975.

There are four guidelines to consider in a speedy trial issue: Length of delay, cause of delay, waiver by defendant and prejudice to defendant. See, Wilson v. District Court of Oklahoma County, Okl.Cr., 471 P.2d 939 (1970); State ex rel. Trusty v. Graham, Okl.Cr., 525 P.2d 1231 (1974).

As to prejudice, defendant argues he subpoenaed Newt Wheeler for trial but he could not be located. Defendant also asserts inconsistencies of witness testimony and loss of plea bargaining in his argument for prejudice. Defendant also says that much of the delay resulted from the prosecution's 'misunderstanding of the law.'

In Hampton v. State of Oklahoma, 368 F.2d 9, 12 (10th Cir. 1966), it was stated, 'Mere passage of time does not establish an unconstitutional denial of speedy trial or due process,' and 'right to a speedy trial is relative and must be determined in light of the circumstances of each case.' In Wood v. United States, 317 F.2d 736 (10th Cir. 1963), the Tenth Circuit Court of Appeals said, 'accused should be tried as soon as the orderly conduct of the business of the court permits.' In Coggins v. Shumate, Okl.Cr., 401 P.2d 995, 996 (1965), this Court said:

'Generally speaking, a 'speedy trial' is one conducted according to prevailing rules, regulations, and proceedings of law free from arbitrary, vexatious and oppressive delays. The right does not require a trial immediately upon arrest, or the filing of an indictment or information; but requires that the trial be had as soon as reasonably possible, within the statutory requirements, without depriving the prosecution of a reasonable time to prepare for trial.'

Considering the number of defendants, and attorneys, the various motions filed and argued, the several stages from certification to trial, and the court-initiated venue changes, we find the ten months between arrest and trial not to be unconstitutionally excessive. For prejudice defendant states the inconsistencies in witnesses testimony (but he fails to refer this Court to examples), and a missing witness (but defendant fails to allege what this witness would testify to). Therefore, this Court finds the defendant's first assignment of error to be without merit.

Defendant's second assignment of error challenges the Juvenile Court's discretion in certifying the defendant to stand trial as an adult. Defendant notes the eight guidelines for certification contained in 10 O.S.Supp.1974, § 1112(b), which are emphasized in J.T.P. v. State, Okl.Cr., 544 P.2d 1270 (1975) and refined in Calhoon v. State, Okl.Cr., 548 P.2d 1037 (1976). But, in utilizing these guidelines we said in Calhoon v. State, supra, that the trial court must find 'substantial evidence' that the child is not amendable to rehabilitation under existing juvenile programs. We are of the opinion that the State has met this burden.

There was testimony that the defendant dropped out of school, and that his only contact with authorities involved a charge of cursing a policy officer, a charge later dismissed when the defendant apologized to the officer. Defendant was arrested on a later charge when a car in which he was riding was found to contain a loaded Colt .45 pistol. However, the most damaging testimony regarding defendant's potential for rehabilitation came from Barbara Rame, sister of two co-defendants. She was in a jail cell adjacent to the defendant when she asked him if her brothers were involved in the killing. She testified that the defendant 'said something to the effect that they weren't cold-blooded like he was and that he really didn't give a dam (sic) about the old bitch.' (Juvenile Hearing, page 98)

Defense challenges the finding of prosecutive merit, one of the two main findings required by Calhoon v. State, supra, in order to certify a juvenile to stand trial as an adult, the other required finding being nonamenability to rehabilitation. Defendant objected to the testimony of Jack McKenzie relating to co-defendant Clifford Rame's confession, and objection should have been sustained. Hearsay is forbidden in juvenile adjudicatory hearings. See, 10 O.S.Supp.1975, § 1111, which provides that said hearings shall be conducted 'according to the rules of evidence.'

We, however, view this as harmless error (see 20 O.S.1971, § 3001), and strictly cumulative so far as proving prosecutive merit in light of the other evidence, especially testimony that one of the victim's guns was sold to a B. J. McDaris by co-defendant Jess Henson and the testimony that the defendant brought the gun to Henson when the sale took place. Then, there was Barbara Rame's testimony of overhearing defendant and two co-defendants talking about the police searching Lake Sahoma for the murder weapon, and their expressing hope for rain so nothing could be found. Miss Rame quoted the defendant as saying that if it did rain, 'the mud would be at least a foot thick and that you couldn't see anything with mud a foot thick.' (Juvenile Hearing Transcript, page 98) We are of the opinion that there was sufficient evidence to support the court's finding of prosecutive merit and of nonamenability, the latter requirement being met by the seriousness and violent nature of the crime, its premeditation and defendant's admission of callous disregard and 'cold blooded' attitude toward the victim and the crime. Defendant's second assignment of error is without merit.

Defendant cites, as his third assignment of error, the contention that the State failed in its burden of proof to show that information used against the defendant was obtained from sources other than the defendant's illegally obtained statement. The 17-year-old defendant was first arrested on July 18, 1974, on a charge of intoxication as he sat behind the wheel of a car. He was taken to Police Headquarters and questioned without the presence of his parents or attorney. Shortly thereafter, Clifford Rame was arrested and gave a properly obtained statement implicating the defendant. Defendant contends Rame was arrested and questioned based on information obtained from the defendant himself.

Title 10 O.S.1971, § 1109(a), states:

'No information gained by questioning a child shall be admissible into evidence against the child unless the questioning . . . is done in the presence of said child's parents, guardian, attorney, or the legal custodian of the child, and not until the child and his parents, or guardian, or other legal custodian shall be fully advised of their constitutional and legal rights . . .'

The defendant challenges evidence used against him under the 'fruits of the poisonous tree doctrine,' delineated...

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