Miller v. State, F-85-211

• Citation: 751 P.2d 733
• Decision Date: 17 February 1988
• Docket Number: No. F-85-211,F-85-211
• Parties: Howard Dean MILLER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 733

751 P.2d 733

Howard Dean MILLER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-85-211.

Court of Criminal Appeals of Oklahoma.

Feb. 17, 1988.

An Appeal from the District Court of Comanche County; Kenneth L. Youngblood, District Judge.

HOWARD DEAN MILLER, A/K/A HOWARD DEAN DECKARD, appellant, was tried by jury and convicted of Second Degree Rape (Count I), Forcible Sodomy (Count II), Second Degree Rape by Instrumentation (Count III), and First Degree Burglary (Count IV), in Case No. CRF-84-233, in the District Court of Comanche County, and sentenced to imprisonment at fifteen (15) years on Count I, fifteen (15) years on Count II, fifteen (15) years on Count III, and ten (10) years on Count IV, the sentences to run consecutively, and appeals. AFFIRMED.

Lisbeth McCarty, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Howard Dean Miller, A/K/A Howard Dean Deckard, appellant, was tried and convicted of Second Degree Rape [21 O.S.Supp.1984, § 1114] (Count I), Forcible Sodomy [21 O.S.Supp.1984, § 888] (Count II), Second Degree Rape by Instrumentation [21 O.S.Supp.1984, § 1114] (Count III), and First Degree Burglary [21 O.S.1981, § 1431] (Count IV), in Case No. CRF-84-233, in the District Court of Comanche County, the Honorable Kenneth L. Youngblood, District Judge, presiding. The jury set punishment at incarceration for fifteen (15) years on Count I, fifteen (15) years on Count II, fifteen (15) years on Count III, and ten (10) years on Count IV. Judgments and sentences were imposed in accordance with the jury's verdict, the sentences to run consecutively. We affirm.

On May 4, 1984, P.B. fell asleep in a recliner while watching television and awoke at approximately 10:00 p.m. when she felt a hand on her shoulder. The intruder, who wore panty hose over his head, forced P.B. at knife point to accompany him to her bedroom. The intruder cut the telephone wire in the bedroom and threatened to harm P.B.'s children if she did not undress. She complied. The intruder then raped and anally sodomized her, forced a shoe polish bottle into her vagina, and raped her once again. At some point during the attack, the attacker touched certain items in the bedroom and pocketed several items, including the victim's driver's license. As the attacker left the bedroom, he warned the victim that if she "charged" him, he would return and "break every bone in her body." The attacker returned to the bedroom and asked where her husband kept his pistol. She responded that her husband, who was away for military training, did not own a gun. The attacker had rearranged the panty hose over his head by this time, and the victim could see his eyes and nose. P.B. recognized her attacker as the appellant, a sixteen-year-old neighbor who occasionally mowed her lawn.

After the appellant fled, P.B. awoke her children, took them to a neighbor, and called the police. The police took her to a hospital, where she was examined, treated, and a rape kit prepared. P.B. identified her attacker to the police, although she could not give them his name, and identified the various items touched in the bedroom and the items stolen by the appellant. A fingerprint expert lifted latent prints from two of the items in the bedroom. The prints matched the appellant's prints on file with the police department. Furthermore, the victim picked the appellant out of a photographic line-up.

Based upon the fingerprint and photographic identifications, the police obtained a search warrant for the appellant's home. The appellant lived with his parents. The warrant was served on the appellant's sister. The appellant's bedroom door was padlocked from the outside. The sister obtained a key and unlocked the door. The police found the telephone stolen from the victim and a box containing military insignia belonging to her husband on a shelf, and also found the victim's driver's license between the mattress and box springs of the appellant's bed. The police then arrested the appellant at school.

Prior to trial, appellant's counsel raised the issue of the appellant's competency to stand trial. The court sent the appellant to Eastern State Hospital in Vinita, Oklahoma, for observation. The Senior Staff Psychiatrist reported the appellant able to appreciate the nature of the charges against him and able to consult with his lawyer and rationally assist in the preparation of his defense. No mental problems were discovered. The court scheduled a competency hearing for August 30, 1984. Appellant requested that a six-person jury hear the question of his competency to stand trial. The jury, by a vote of five to one, found the appellant competent to stand trial. Appellant had already been certified to stand trial as an adult.

At trial the appellant testified that P.B. asked him into her home and seduced him. He denied inserting a shoe polish bottle into her vagina, anally sodomizing her, or stealing any of the items found in his room. He claimed the victim loaned the telephone to him. When first arrested, the appellant claimed he found the telephone in a dumpster. The appellant claimed the military insignia seized in his locked bedroom belonged to him and reflected his R.O.T.C. rank. On cross-examination, however, the State brought out that R.O.T.C. insignia differs from regular Army insignia and that the appellant held a different rank in the R.O.T.C. from the insignia found in his room. An insanity defense was not raised at trial.

The appellant's first three assignments of error concern his competency hearing: first, that he was not competent to stand trial as defined by 22 O.S.1981, § 1175.1; second, that the court erred by failing to instruct the competency jury that the State has the burden of proving competency beyond a reasonable doubt once the accused presents clear and convincing evidence of incompetency; and third, that it was error for the jury to find him competent by a 5-1 vote, rather than by a unanimous verdict. The appellant's assignments of error are grounded on two assumptions: first, that the standards for a competency hearing are the same as for an insanity defense raised at trial; second, that the appellant has a constitutional right to a jury trial at a competency hearing with a concomitant right to a unanimous jury verdict. We disagree.

The question of an accused's present competency to stand trial is a separate matter from a defense of insanity, that is, the inability to distinguish right from wrong at the time of the offense. Competency is defined as "the present ability of a person arrested for or charged with a crime to understand the nature of the charges and proceedings brought against him, and is able to effectively and rationally assist in his defense." 22 O.S.1981, § 1175.1(1). See Clark v. State, 718 P.2d 375, 377 (Okl.Crim.App.1986). See also Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960). Indeed, it is error for the trial court to find the accused competent to stand trial based solely upon the determination that he knew right from wrong at the time of the offense. Campbell v. State, 636 P.2d 352, 355 (Okl.Crim.App.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983). See also Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Conviction of an accused while legally incompetent violates due process. Id. at 378, 86 S.Ct. at 838.

Here, appellant's counsel brought the appellant's competency into issue. The appellant was professionally examined and found to be competent to stand trial. The court then ordered a competency hearing.

The court, at the hearing on the application, shall determine by clear and convincing evidence, if the person is incompetent. The person shall be presumed to be competent for the purposes of the allocation of the burden of proof and burden of going forward with the evidence.

22 O.S.1981, § 1175.4(B). If the court deems it necessary, or if demanded by the accused, or by a relative, friend, or person with whom the accused resides, a six-person jury shall be impaneled to determine the question of competency and the need for treatment. See Scott v. State, 730 P.2d 7 (Okl.Crim.App.1986). Section 1175.4 contemplates that competency shall be determined by the trial court, unless an affirmative demand is made for a jury. Section 1175.4 further presumes competency and places the burden of proof and the burden of persuasion on the accused to prove his incompetence by clear and convincing evidence. If the finder of fact determines the accused is presently incompetent to stand trial, all criminal proceedings must stop and the accused must receive appropriate treatment, therapy or training to achieve competency. 22 O.S.1981, §§ 1175.2(A), 1175.6(2). If the accused is found incompetent and not capable of achieving competency within a reasonable period of time, and qualifies as mentally ill under Title 43A, the criminal case shall be dismissed without prejudice. 22 O.S.1981, § 1175.6(3). Once competency is restored, the criminal proceedings shall resume. 22 O.S.1981, § 1175.8. Therefore, a finding of present incompetency is not a final adjudication on the merits, requiring the State to prove competency beyond a reasonable doubt, but rather a postponement of all criminal proceedings until competency is restored.

The appellant argues that he has a constitutional right to a unanimous jury vote in a competency hearing, relying on Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). In Burch, the Supreme Court ruled that, in a trial of a nonpetty offense to a jury of six, the verdict must be unanimous to convict. Id. at 138, 99 S.Ct. at 1627. The appellant's reliance on Burch is misplaced. He overlooks the obvious--a jury finding in an incompetency hearing is not a conviction. If the accused is found incompetent, all...