Brinlee v. State, F--74--722

• Decision Date: 03 December 1975
• Docket Number: No. F--74--722,F--74--722
• Citation: 543 P.2d 744
• Parties: Garland Rex BRINLEE, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 744

543 P.2d 744

Garland Rex BRINLEE, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F--74--722.

Court of Criminal Appeals of Oklahoma.

Dec. 3, 1975.

Rehearing Denied Jan. 5, 1976.

J. A. Allford, McAlester, and Garland Rex Brinlee, Jr., pro se, for appellant.

Larry Derryberry, Atty. Gen., Frank Muret, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Presiding Judge:

Appellant, Garland Rex Brinlee, Jr., hereinafter referred to as defendant, was charged, tried and convicted in the District Court, McIntosh County, Case No. F--74--19, for the offense of Escape From the Oklahoma State Penitentiary, in violation of 21 O.S.1971, § 443. His punishment was fixed at a term of five (5) years' imprisonment, such sentence to begin at the termination of any sentence presently being served by defendant. From said judgment and sentence, a timely appeal has been perfected to this Court.

Briefly stated, the record reveals the following facts. On November 29, 1971, the defendant was committed to the Oklahoma State Penitentiary to serve a life sentence for the crime of Murder. Roby Battles, Assistant Record Clerk of the Oklahoma State Penitentiary, identified State's Exhibit No. 2 as a master record card kept on defendant. He testified that these cards are kept on each inmate in the ordinary course of penitentiary business. Said master card reflected that the defendant was confined within the walls of the Oklahoma State Penitentiary during the month of July, 1973.

Park J. Anderson, Warden in charge of the Oklahoma State Penitentiary, testified that the inmates in the institution rioted on July 27, 1973. It took approximately one week to restore order within the institution. During this period he learned defendant was missing from the institution and he further stated that defendant was never given permission to leave the institution.

On August 4, 1973, Frank Hagerdorn, at that time the Director of the Oklahoma State Bureau of Investigation, testified that he supervised agents in an unsuccessful search to locate defendant. Pursuant to their continued investigation, they located the defendant at Gulfport, Mississippi, in the custody of law enforcement officials. On September 21, 1973, Hagerdorn and other agents in his company transported defendant to Jackson, Mississippi, for a Governor's Hearing on extradition to Oklahoma. On September 25, 1973, defendant was transported to McAlester, Oklahoma, by automobile. A Jackson-Denno hearing was held in which it was established that all conversations engaged in during the transport of defendant to the Oklahoma State Penitentiary were initiated by defendant and not in response to custodial interrogation. Summarily, the statements made by defendant revealed that defendant denied participation in the riot but described his method of escape.

Thereafter the State rested.

The State and defense entered into a stipulation regarding portions of the record and the defense rested.

We observe that both defense counsel and defendant pro se have submitted briefs. Therefore, we will consolidate by reference in each individual proposition those assignments of error which are duplicated. Further, the arguments regarding each assignment of error will be argued in the sequence of their occurrence at trial and will be referred to by defendant's pro se and defense counsel's assignments of error.

Defendant in his third pro se assignment of error urges that the information was insufficient as he was unable to determine which section of the statutes (21 O.S.1971, § 435 or § 443) he was alleged to have violated. With this contention we cannot agree.

We observe that the charging portion of the information reads as follows:

'. . . Garland Rex Brinlee, Jr., late of said County and within the jurisdiction of said Court, did unlawfully, wrongfully, and wilfully and feloniously, commit the crime of escaping from a state prison in the manner and form as follows, to-wit: that the said Garland Rex Brinlee, jr. was duly committed to the Oklahoma State Penitentiary from the District Court of Okmulgee County, Oklahoma, for a term of life for the crime of Murder; that a copy of said commitment is attached hereto, and marked 'Exhibit A' for identification; that thereupon the said Garland Rex Brinlee, Jr., became prisoner #83546 of said penitentiary, and did then and there, through the use of stealth and fraud, unlawfully and feloniously escape from said penitentiary by leaving said premises and absconding without the knowledge of the warden of said penitentiary or any of the officials or guards thereof, contrary to the form of the statutes, in such cases made and provided, and against the peace and dignity of the state.'

Title 21 O.S.1971, § 443, the statute in effect at the time defendant was tried, states as follows:

'Any prisoner in either the State Penitentiary or State Reformatory sentenced thereto who escapes from such prison, either while confined therein, or while permitted to be at large as a trusty, is punishable by imprisonment in such prison for a term not less than two (2) years or more than seven (7) years.'

Title 21 O.S.1971, § 435, reads as follows:

'Every prisoner confined in any other than the penitentiary, who by force or fraud escapes therefrom, is punishable by imprisonment in the penitentiary not exceeding two years, or in a county jail not exceeding one year, to commence from the expiration of the original term of his imprisonment.'

The above quoted language in the information unquestionably relates to Section 443 and is thoroughly distinguishable from an application to 21 O.S.1971, § 435, in that the information does not allege defendant was confined in or escaped from an institution other than the State Penitentiary as provided for in Section 435. We have on numerous occasions held that an information charging one with escape which follows substantially the language of the statute and states the offense clearly and distinctly in ordinary and concise language without repetition, and in such a manner as to enable a person of common understanding to know what is intended, will not, on demurrer, be held insufficient to charge an offense. See, Perry v. State, 80 Okl.Cr. 58, 157 P.2d 217 (1945).

Therefore we find this assignment of error to be without merit.

Defense counsel alleges in his third assignment of error that the trial court erred in denying defendant's objection to improper and insufficient observation and examination of defendant at the State hospital, which examination substantially failed to comply with the order of the court and the laws of Oklahoma for such examination. As stated in counsel's brief, the issue raised here is not whether the application for an examination should have been granted, because that was done and the District Court ordered that an examination be conducted pursuant to the authority granted by 22 O.S.1971, § 1171. The issue raised is the sufficiency of the examination purportedly conducted. Counsel complains that because it only took psychiatrists less than one day to conduct their examination, combined with the fact that the defendant was under heavy guard at the time of the examination, said examination was merely a perfunctory one. In support of this contention he cites Sandefur v. State, Okl.Cr., 461 P.2d 954 (1969), which held:

'We are of the opinion that when insanity is interposed as a defense, and the trial court orders the defendant to be examined by experts, the conclusions of said experts are admissible in evidence when such conclusions are premised upon a sound and recognizable basis for making their determinations.'

Counsel argues that due to the surrounding circumstances of the instant examination of defendant the conclusions of the psychiatrists were not premised upon a sound and recognizable basis.

However, after a careful review of the record before us, it does not appear that there is any evidence to support the assertion that the conclusions reached by the doctors were not based upon a sound and recognizable basis. Furthermore, the trial court, upon receipt of the State psychiatrists' report stating that the defendant was able to distinguish between right and wrong and was capable of advising an attorney in his own defense, acted properly under the statutory authority provided in 22 O.S.1971, § 1173. Accordingly, finding no abuse of discretion by the trial court, we find this assignment of error to be without merit.

Defendant pro se alleges in his first assignment of error that the trial court committed reversible error by overruling pretrial motions for a transcript of the preliminary hearing. In support of this contention the defendant cites the cases of Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967), and Waters v. State, Okl.Cr., 454 P.2d 325 (1969), which held that to interpose any financial consideration between an indigent prisonre of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws. With defendant's contention we cannot agree.

In the case of Morgan v. Graham, Okl.Cr., 497 P.2d 464 (1972), this Court held:

'We conclude, therefore, that while the indigent defendant cannot be required to carry the burden of 'particularized need,' neither the court nor the state can be criticized for taking appropriate steps to determine the value of such requested transcript in connection with the appeal or trial for which it is sought, and the availability of alternative devices.

'In short, an indigent defendant is not entitled to a free transcript as a matter of course, and certainly not where it is being sought as a matter of trial tactics for the purpose of delay.

'If the state can show a tape recording or some similar device will serve the same purpose at less cost, then it should be given the opportunity to so show. This would also indicate that petitions in forma pauperis for free transcripts should be drafted with care...