Boltz v. State

• Decision Date: 07 January 1991
• Docket Number: No. F-84-765,F-84-765
• Citation: 806 P.2d 1117
• Parties: John A. BOLTZ, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1117

806 P.2d 1117

John A. BOLTZ, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-765.

Court of Criminal Appeals of Oklahoma.

Jan. 7, 1991.

Rehearing Denied Feb. 13, 1991.

An appeal from the District Court of Pottawatomie County; Glenn Dale Carter, District Judge.

JOHN A. BOLTZ, appellant, was tried by jury for the crime of Murder in the First Degree in the District Court of Pottawatomie County, Case No. CRF-84-97. The jury returned a verdict of guilty and sentenced appellant to death. The trial court sentenced appellant accordingly and from this judgment and sentence, appellant appeals.

AFFIRMED.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen. and Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Judge:

John A. Boltz, appellant, was tried by jury for the crime of Murder in the First Degree in the District Court of Pottawatomie County, Case No. CRF-84-97. Appellant was represented by counsel. The jury returned a verdict of guilty and sentenced appellant to death. The trial court sentenced appellant accordingly. From this judgment and sentence, appellant appeals.

On April 18, 1984, at approximately 9:30 p.m., the Shawnee Police Department received a call from the appellant's wife, Pat Kirby. Ms. Kirby informed the police that she was at her mother's house and that appellant, who had been drinking, had forced his way into the house and had made accusations about her to her mother. Ms. Kirby further stated that when she threatened to call the police, appellant left. Ms. Kirby gave the dispatcher the appellant's car tag number and his home address.

Ms. Kirby called the police department later and inquired as to whether appellant had been taken into custody. When she was informed that he had not been arrested, Ms. Kirby went to her son Doug's house. After they had been there for a short time, appellant called and talked to Doug. The conversation lasted only a few minutes. A short time later, appellant called back and again talked to Doug. After this call, Doug left to go to appellant's trailer house. Immediately thereafter, appellant called a third time and Ms. Kirby answered. Appellant told her, "I'm going to cut your loving little boy's head off." Appellant also threatened Ms. Kirby. Ms. Kirby immediately called the police and reported the threats. Ms. Kirby told the dispatcher where appellant lived and stated that she was going over there.

Vita Witt, who lived next door to appellant, testified that during that evening she heard the screeching of brakes, a car door slam and loud and angry voices. When she heard a sound like someone getting the wind knocked out of him, she looked out the window and observed a man later identified as Doug Kirby, lying on the ground on his back, not moving. She testified that appellant was standing over him screaming obscenities and beating him. Ms. Witt told her son to call the police. Ms. Witt testified that she observed appellant pull something shiny from his belt and point the object at the man. Ms. Witt testified that when appellant looked up and saw her watching, she turned away out of fear.

Appellant was arrested in Midwest City, Oklahoma, at the American Legion Hall after a friend informed the police of appellant's location. Appellant had informed the friend that he had killed his stepson and had probably cut his head off. Appellant surrendered to the police upon their arrival.

Dr. Fred Jordan testified that the autopsy of Doug Kirby revealed a total of eleven wounds, including eight stab wounds to the neck, chest and abdomen, and three cutting wounds to the neck. One of the wounds to the neck was so deep that it had cut into the spinal column. The carotid arteries on both sides of the neck were cut in half and the major arteries in the heart were also cut.

Appellant testified that Doug Kirby had called him that evening and threatened to kill him. Appellant claimed that when Doug arrived at his house, he kicked in the front door and as he went for a gun, appellant stabbed him twice, but did not remember anything after that point. A .22 caliber revolver was recovered from the passenger seat of Doug's car. The gun had no blood on it although the seat was splattered with blood.

Initially, appellant contends that the trial court did not provide him with an independent mental examination and did not conduct a post-examination competence hearing. In response to an application for determination of competency, the district court held a hearing on September 14, 1984, in conformance with 22 O.S.1981, § 1175.3, and found that there was doubt as to the competency of appellant and ordered that he be examined at Eastern State Hospital. The chief forensic psychiatrist answered the statutorily required questions that the appellant was competent to stand trial, was able to assist his attorney in the preparation of his defense, and was not a mentally ill person or person requiring treatment as defined by 43A O.S.1981, § 3. The psychiatrist noted that the appellant may be suicidal and prescribed Triavil 4-25 tablets three times a day to curb depression.

Appellant cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) for the proposition that the State may be obligated to provide an indigent defendant with access to competent psychiatric assistance in preparing his defense under certain circumstances. However, to trigger this process, the defendant must demonstrate "to the trial judge that his sanity at the time of the offense is to be significant factor at trial ..." 470 U.S. at 74, 105 S.Ct. at 1092, 84 L.Ed.2d at 60. A bald assertion in a pleading that the murder was committed while the defendant was in a state of insanity, along with a defense at trial of self-defense is not sufficient to make the required demonstration.

Clearly, error occurred in this case when the trial court failed to conduct a post-examination competency hearing pursuant to 22 O.S.Supp.1988, § 1175.4(A). Therefore, this Court issued a unanimous order remanding this case to the district court to make findings concerning the feasibility of determining appellant's competency to stand trial in light of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), as well as findings of his competency to stand trial when he did. On remand, the trial court determined that it was feasible to make the determination, and a jury found that appellant was competent at the time of his trial.

Appellant claims that his judgment and sentence should have been reversed due to the error committed at trial, and that this Court has denied him his right to due process under the Fourteenth Amendment by remanding solely for a post-examination competency hearing. Although the record in some cases has resulted in reversal of convictions on this issue, see Kelly v. State, 735 P.2d 566 (Okl.Cr.1987) and Scott v. State, 730 P.2d 7 (Okl.Cr.1986), failure to conduct a competency hearing concurrently with trial is not per se violative of due process. See Anderson v. State, 765 P.2d 1232 (Okl.Cr.1988) and Rowell v. State, 699 P.2d 651 (Okl.Cr.1985). This view is shared by several other courts. See Bundy v. Dugger, 850 F.2d 1402 (11th Cir.1988); United States ex rel. Bilyew v. Franzen, 842 F.2d 189 (7th Cir.1988); United States v. Hutson, 821 F.2d 1015 (5th Cir.1987); Wheat v. Thigpen, 793 F.2d 621 (5th Cir.1986), reh'g denied 797 F.2d 977 (1986), cert. denied 480 U.S. 930, 107 S.Ct. 1566, 94 L.Ed.2d 759 (1987); United States v. Johns, 728 F.2d 953 (7th Cir.1984) and Arnold v. United States, 432 F.2d 871 (10th Cir.1970). It is the opinion of this Court that if a defendant's competency at the time of trial can be meaningfully determined at a subsequent time on the basis of credible and competent evidence, then error committed by a district court in failing to hold a hearing at the proper time can be cured. If the procedural defect is thereby cured, any due process attack based upon the defect must fail.

The present case was remanded for competency proceedings some three years after trial. The competency hearing itself was not conducted until six months later, after appellant was granted a continuance. However, these delays do not necessarily preclude a meaningful retrospective determination. See United States v. Makris, 535 F.2d 899 (5th Cir.1976), cert. denied 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803 (1977). The trial court had the records of Eastern State Hospital, where the competency examination was performed, along with the testimony of one of the examining physicians, appellant's trial attorney, and the sheriff who held appellant in custody for over 200 days. The trial transcript and an audio tape of appellant's own testimony at trial were available for review. Furthermore, the judge presiding in the remand hearing was the same judge who presided at trial, and he had his own personal knowledge to draw upon. With such a wealth of available evidence, the trial court properly determined that a retrospective competency determination was feasible. Cf. Arnold v. United States, supra, (competency determination after three years was valid where psychiatric exam was conducted contemporaneously with trial, the doctor was properly instructed concerning the legal questions involved, and the doctor made no equivocations concerning the diagnosis).

Appellant also claims that his rights were violated because the jury was permitted to consider his taped trial testimony. In accord with Makris, supra, and Arnold, supra, we must conclude that appellant's conduct and testimony at trial were not only properly admissible, but "provided a solid starting point for reliable reconstruction of the pertinent facts." Makris, 535 F.2d at 904. We find the evidence presented to the jury amply supported their finding that appellant was competent to stand trial when he did.

Appellate counsel asserts that appellant's failure to follow...