Calhoon v. State, J--76--175

• Decision Date: 13 April 1976
• Docket Number: No. J--76--175,J--76--175
• Citation: 548 P.2d 1037
• Parties: Luther Stephen CALHOON, a Juvenille, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1037

548 P.2d 1037

Luther Stephen CALHOON, a Juvenille, Appellant, v. The STATE of Oklahoma, Appellee.

No. J--76--175.

Court of Criminal Appeals of Oklahoma.

April 13, 1976.

Larry Derryberry, Atty. Gen., Oklahoma City, John Russell, Dist. Atty., Stilwell, for State.

Kenneth C. Ellison, Tulsa, for appellant.

OPINION

BLISS, Judge:

This is an appeal by the above named juvenile, Luther Stephen Calhoon, a male child, who was born May 17, 1961, from an order entered by the Juvenile Division of the District Court in and for Adair County, Oklahoma, on the 11th day of February, 1976, in Case No. JFJ--75--42, in which order the Juvenile Division of the District Court waived or relinquished its jurisdiction over the juvenile and certified him to stand trial in the trial division of said court for the alleged crime of Murder in the First Degree, as empowered by 10 O.S.Supp.1975, § 1112. The appeal to this Court is authorized by and has been timely filed under 10 O.S.Supp.1975, § 1123 and Rule VIII of this Court, adopted and effective July 3, 1975.

The State of Oklahoma instituted the proceedings against the juvenile by filing a verified petition in the Juvenile Division of the District Court in said case numbered JFJ--75--42 on October 1, 1975, as required by 10 O.S.Supp.1975, § 1103, alleging, among other things, as follows:

'That the above named child is within the purview of the Juvenile Code because of the following facts, to-wit:

'That the above named child did on or about the 30th day of September, 1975, commit the crime of Murder, First Degree that is to say that the aforesaid child did unlawfully, wilfully, and feloniously, without authority of law and with a premeditated design to effect the death of one ORA MAYE ETHERIDGE, the said child did while being then and there engaged in committing or attempting to commit the crime of Armed Robbery, did kill the said ORA MAYE ETHERIDGE, by means of shooting her with a .22 caliber rifle and by striking and beating her about the head with said rifle, causing mortal wounds in the body of the said Ora Maye Etheridge from which mortal wounds the said Ora Maye Etheridge did lanquish and die,'

and requested the court to certify the juvenile to stand trial as an adult.

The court held its first hearing on the petition on November 7, 1975, at which the State appeared by its Assistant District Attorney and the said juvenile appeared in person, with his parents, Mr. and Mrs. George Calhoon, and his court appointed attorney, Mr. S. Daniel George. The facts developed at that hearing from the testimony of sworn witness, a Mrs. Rose Hembree and four peace officers, are substantially as follows:

Mrs. Ora Mae Etheridge, an elderly widow, lived alone in her home in Stilwell, Adair County, Oklahoma, and was next door neighbor to the parents of the juvenile, Mr. and Mrs. George Calhoon. About 5:30 p.m., Tuesday, September 30, 1975, Mrs. Hembree, a friend of Mrs. Etheridge, called at the Etheridge home; she found the front door ajar and, being unable to get a response to ringing the door bell and her knocking on the door, she entered the home and immediately noticed the body of Mrs. Etheridge lying on the floor with indications of blood near her mouth. Mrs. Hembree retreated from the house and caused police officers to be notified, who arrived promptly.

The officers found Mrs. Etheridge to be dead, having been beaten about the head and having been shot with a .22 caliber bullet, from which death had resulted. In a chair near her head was her open purse, the contents of which had been 'shuffled around'.

The investigation led next door to the Calhoon home and the officers inquired of Mr. Calhoon, father of the juvenile, if he had information about a broken gun in his home. He said he did have and invited the officers in and led them to his son's room upstairs and showed them a .22 caliber single shot Remington rifle with a broken stock, separated from the barrel. Thereafter, the juvenile returned from a football game which he had attended; and then, after giving the Miranda warnings to the parents and the juvenile, the officers interrogated them, each in the presence of the other, the parents assisting in the interrogation of their son.

At first the juvenile told the officers that some man had borrowed his gun and paid 'him to keep his mouth shut.' He then told, in substance, that he had gone to Mrs. Etheridge's alone with his rifle, shot her, killed her and he did not know why and could not remember all that had happened. Later in the investigation, as one of the officers testified, the juvenile gave him ten (10) Five Dollar ($5.00) bills which he said he found in the Etheridge house, 'that he stumbled over a rug in the living room and found this money lying on the rug.'

The next morning one of the officers went back to the Etheridge home and found an expended .22 caliber bullet in a foam rubber cushion on the divan in the front room where the body was found the evening before. A ballistic report, properly admitted in evidence by stipulation, reflected the bullet had been fired from the rifle found in the juvenile's room. An autopsy report, admitted into evidence by agreement, reflected that Mrs. Etheridge's death was caused by a .22 caliber bullet wound in the stomach area, the bullet having entered the left side and exited the right side, and by massive beating to the head. It was the theory of the State that she was sitting on the divan when she was shot.

The initial hearing was concluded with this evidence, but with the understanding and agreement of the parties that an additional hearing or hearings would be held in reference to the certification aspects of the proceedings. Thereupon, the court announced its findings from the evidence presented. The court found and ordered there were reasonable grounds to believe the crime of Murder in the First Degree as charged in the petition had been committed and reasonable grounds to believe the juvenile, Luther Stephen Calhoon, committed the crime. This constitutes positive finding by the court of the prosecutive merit of the proceedings.

The next hearing was had before the Juvenile Division of the court by agreement on January 26, 1976, at which time the State appeared by Mr. Rex Earl Starr, Assistant District Attorney, and the juvenile in person and with his parents and by employed counsel, Mr. Larry B. Ferguson and Mr. Kenneth C. Ellison, attorneys at law, Tulsa, Oklahoma, Mr. S. Daniel George, the court appointed attorney, having agreeably withdrawn as counsel for the juvenile. It is to be noted that this hearing is subsequent to our opinion in J.T.P. v. State, Okl.Cr., 544 P.2d 1270 (1975) and to which the court referred at the conclusion of the hearing.

The State called as its medical expert one doctor D, whose specialty is psychology and who has served as a clinical psychologist for twelve years at Eastern State Hospital at Vinita, Oklahoma, and who had examined, tested and observed the juvenile for a period of approximately nine (9) days at said institution to which he had been committed by the District Court on October 1, 1975, for mental observation for a period not to exceed sixty days. The record reflects that he was ordered released to the Adair County authorities on October 9, 1975, as able accurately to distinguish between right and wrong and capable of advising legal counsel in his own defense, and such was the testimony of doctor D, who testified further the juvenile is not mentally retarded but of average intelligence, had 'a non-psychotic diagnosis . . . that it fell under the classification of personality disorder, and it was schizoid personality.' On cross-examination he testified the juvenile 'has possibility of some sociopathic tendencies and budding psychopathy,' phases of which bring in society and transgressions against society.

The next witness for the State, a Mr. Charles Caywood, testified that he was employed by the Department of Institutions, Social and Rehabilitative Services of Oklahoma, and had been for several years and was District Supervisor over a ten county area, including Adair County. He testified in great detail as to the institutions and facilities available and their utilization for those adjudged and committed as delinquents.

The next witnesses for the State were four (4) school teachers from the Junior High School in Stilwell, Adair County, Oklahoma, who had taught the juvenile in their classes. It appears he was in the eighth grade in the school year 1974--1975. Overall, the juvenile attended school with reasonable regularity, had no particular behavioral problems and was a student of less than ordinary ability.

The juvenile called one witness, doctor W from Tulsa, whose specialty is psychiatry with seven or eight years experience in private practice. She had reviewed the tests given the juvenile at the hospital in Vinita and had conducted her own examination of him. Her testimony was he is aware of right and wrong but is unable to evaluate the consequences, although he is mentally the age of fourteen, and is able to assist his attorneys in his own defense. She further testified in her opinion the juvenile could be rehabilitated within the programs and facilities of the Department of Public Welfare within a period of six months to a year, two years at the most.

Both parties rested, and agreeable to them, the court took the matter under advisement and requested their further appearances at a subsequent and final hearing.

The hearing was held February 6, 1976, with the same appearances; however, the court had requested the reappearance of the said doctor D, doctor W and the witness Caywood and had present for the first time witnesses Sidebottom and Harris, who were present to testify. No objection was made by either party, except the juvenile objected to those who had not previously testified. The court called and examined the witnesses...