Garrison v. Jennings

• Decision Date: 03 December 1974
• Docket Number: No. O--74--400,O--74--400
• Citation: 529 P.2d 536
• Parties: Wayne Henry GARRISON, a minor under 18 years of age, to-wit: 14 years, Petitioner, v. The Honorable Joe JENNINGS, Judge of the District Court, Tulsa County, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 536

529 P.2d 536

Wayne Henry GARRISON, a minor under 18 years of age, to-wit 14 years, Petitioner, v. The Honorable Joe JENNINGS, Judge of the District Court Tulsa County, Respondent.

No. O--74--400.

Court of Criminal Appeals of Oklahoma.

Dec. 3, 1974.

This is an original proceeding wherein petitioner seeks a Writ of Prohibition, to prohibit The Honorable Joe Jennings, Juvenile Court Judge of Tulsa County from certifying him as an adult to stand trial for the crime of murder. Writ granted.

Art Fleak, Jr., Public Defender, Tulsa, for petitioner.

Terry Malloy, Legal Intern, Juvenile Div., Tulsa, for respondent.

OPINION AND DECISION

BRETT, Judge:

This is an original proceeding wherein petitioner, a minor of fourteen years of age, is seeking to prohibit The Honorable Joe Jennings, Juvenile Court Judge of the Tulsa County District Court, from certifying him as an adult to stand trial for the crime of murder. The certification hearing was continued in order that petitioner might seek relief in this Court by way of the Writ of Prohibition.

On November 2, 1972, a petition was filed in the Tulsa County Juvenile Court, Case No. JFJ--72--759, seeking to have petitioner adjudicated to be a 'delinquent.' That petition recites as the basis for such adjudication that the juvenile is thirteen years of age and charges the following: 'That the above named Wayne Garrison is a delinquent child living in Tulsa County, Oklahoma. That said child did, on or about October 30, 1972, unlawfully strangle Dana Dyan Dean by means of a light blue cloth tied around the neck of said victim, said child thereby causing Dana Dean to languish and die as a result of this strangulation.'

On November 3, 1972, at the request of the State and the attorney for petitioner, the Juvenile Court entered an order transporting petitioner to Central State Hospital at Norman, Oklahoma, for observation, evaluation, and report. The petition seeking delinquency adjudication remained pending. On December 22, 1972, the day the juvenile was returned from the State Hospital, a hearing was had before The Honorable James H. Griffin, Judge of the Juvenile Court.

Speaking to the prosecutor, the Judge inquired, 'The petition alleges delinquency. You advised me previously, Mr. Wooley, at this time you would like to amend the petition to read that Wayne is a child in need of supervision.' The prosecutor replied, 'That's right, your Honor.' Speaking to the juvenile's counsel, the court asked, 'to the petition as amended, what do you say?' Counsel replied, 'WE WILL STIPULATE TO THE ALLEGATIONS.' (Emphasis added.) The Juvenile Judge stated in part: 'The Court finds the allegations of the petition to be true. . . .' The Juvenile Court Judge entered an order the same day, December 22, 1972, which recites that the juvenile is thirteen years of age; sets forth that the juvenile was represented by Mr. Jay Gregg, Public Defender, and states: 'The Court finds that the petition filed herein is amended to Child in Need of Supervision. And the Court further finds that the amended petition filed herein is true and that the above named child should be placed in the custody of the Central State Griffin, Memorial Hospital, Norman, Oklahoma, for treatment, with the Court to be notified prior to his release. IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED BY THE COURT that the above named child, is within the purview of the Juvenile Code as a child in need of supervision. . . .' Thereafter, the juvenile was transported to Central State Hospital for treatment in the Phil Smalley Children's Treatment Center at Norman, Oklahoma.

Almost two years later the Tulsa County District Attorney's Office filed an 'Amended Petition' in the Tulsa County Juvenile Court, in the same case concerning the same juvenile. That petition sets forth that the juvenile is fourteen years of age and seeks to have him adjudicated to be a 'delinquent' child, premised upon the same facts, but stated in more detail, than was the first petition. The amended petition alleges:

'That the above named child found living in Tulsa County Oklahoma, is a delinquent child due to the fact that he did, on or about the 31st day of October, 1972, unlawfully, willfully, maliciously and intentionally without authority of law and with a premeditated design on the part of said child to effect the death of a human being, to wit: one Dana Dyan Dean, did then and there choke, strangle and suffocate and stop the respiration of the said Dana Dyan Dean by placing a light blue cloth approximately one inch wide and 12 inches long around the neck of said Dana Dyan Dean and did then and there asphyxiate, kill and cause and effect the death of said human being. Further, said offense occurred in Tulsa County, Oklahoma, and further, due to the above, the State of Oklahoma requests that Wayne Henry Garrison be certified to stand trial as an adult.'

Counsel for the juvenile, Mr. Art Fleak, Jr., of the Public Defender's Office, filed a 'Motion to Quash Petition and To Dismiss.' The motion sets forth that the same facts were adjudicated on December 22, 1972, in case number JFJ--72--759, before Judge James H. Griffin; it also sets forth sufficient statements of fact, if applicable, to establish a plea of former jeopardy; and counsel asserted that any effort to put the juvenile to trial on said charge after twenty months, while the juvenile was incarcerated on the Juvenile Court Order, would violate his constitutional right to a speedy trial; and prayed that the amended petition be dismissed.

On June 25, 1974, a hearing was had on the amended petition before the Juvenile Court Referee, who entered findings to show the representation of the parties, and recited, in part, the following:

'. . . that the adjudication by this Court on December 22, 1972, was based on a petition orally amended 'to read,--child in need of supervision.' That the same stipulation or evidence was not presented to prove the amended petition as would have been necessary to prove the original allegations of delinquency. That on December 22, 1972, pursuant to Title 10 O.S. 1116 and without objection of the parties, said child was placed at Central State Hospital for treatment. That on that date said child was represented by the Public Defender, who at no time has made a demand for trial.

Therefore, the Motion to Quash and Dismiss the Amended Petition filed herein is denied.'

The Referee found further 'that there is prosecutive merit to the State's Amended Petition filed herein June 13, 1974.' The Referee's recommendation to the Court was that the juvenile be continued as a ward of the court, and that 'the hearing to determine certification of said child be set for June 25, 1974.' The Juvenile Court Judge accepted the Referee's recommendation, and entered an order setting the certification hearing for a date certain, but stayed that order to enable petitioner to seek issuance of the writ of prohibition by this Court.

Prohibition is an appropriate remedy to prevent retrial once a defendant has been in jeopardy. State ex rel. Waters v. Lackey, 97 Okl.Cr. 41, 257 P.2d 849 (1953); Hill v. Graham, Okl., 424 P.2d 35 (1967); Sussman v. District Court of Oklahoma County, Okl.Cr., 455 P.2d 724 (1969). In accordance with Supreme Court Rule 1.10(c)(2), pertaining to certification of juveniles, this matter is properly before this Court.

This matter rpesents the following question: Was the minor placed in jeopardy, within the meaning of the constitutional protections against twice being placed in jeopardy for the same offense, in the June 14, 1974, proceedings?

The answer must be YES. Article 2, Section 21, of the Oklahoma Constitution provides the following:

'No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided; nor shall any person, after having been once acquitted by a jury, be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense.' (Emphasis added.)

The bar to double jeopardy provided in the Fifth Amendment to the United States Constitution is made applicable to state proceedings by virtue of the Fourteenth Amendment. See: Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The United States Supreme Court provided in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), that juveniles are entitled to the fundamental protection of the Bill of Rights in proceedings that may result in confinement or other sanctions, whether the state labels these proceedings 'criminal' or 'civil.'

The District Attorney argues that jeopardy could not have attached, because a 'child in need of supervision,' (CHINS) charge is not a lesser included offense to the charge that a child is 'delinquent.' This argument is premised upon the statutory definitions of the two terms and has no bearing whatsoever on the procedural aspects with which we are here concerned. We are here concerned with whether or not this person is being twice put in jeopardy of life or liberty for the same offense. There can be no doubt whatsoever but that he is.

In the instant case, on November 2, 1972, a petition was filed with the juvenile court asserting that the juvenile had committed an offense, which if committed by an adult would constitute a crime. No information was on file in the district court alleging that petitioner had committed a crime. By the facts contained in the petition, the juvenile court determined that it had jurisdiction to consider the petition, and delivered the juvenile to the State Institution for psychiatric evaluation. Between that date and December 22, 1972, the Juvenile Judge received sufficient information concerning the child and had some discussion with both counsels in the case to warrant his...