Morgan v. State, J-77-407

• Decision Date: 13 September 1977
• Docket Number: No. J-77-407,J-77-407
• Citation: 569 P.2d 474
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Jonathan MORGAN, Appellant, v. The STATE of Oklahoma, Appellee.

Page 474

569 P.2d 474

Jonathan MORGAN, Appellant, v. The STATE of Oklahoma, Appellee.

No. J-77-407.

Court of Criminal Appeals of Oklahoma.

Sept. 13, 1977.

An Appeal from the District Court, Cherokee County; Lynn Burris, judge.

Jonathan Morgan, a juvenile, appeals from an order of the Juvenile Division of the District Court, Cherokee County, waiving exclusive jurisdiction over him and certifying him to stand trial as an adult for the crime of Murder in the First Degree. AFFIRMED.

Loyal J. Roach, III, Tahlequah, for appellant.

Nathan Young, III, Asst. Dist. Atty., Cherokee County, Rex Earl Starr, Asst. Dist. Atty., Adair County, for appellee.

OPINION

PER CURIAM:

The appellant, Jonathan Morgan, a juvenile, appeals from an order of the Juvenile Division of the District Court, Cherokee County, Case No. JUV-77-14, waiving jurisdiction over him and empowering the State to prosecute him as an adult for the crime of Murder in the First Degree.

The evidence presented at the hearing was that on March 26, 1977, at approximately 6:00 p. m., Mr. Virgle Potts, 83 years of age, was watching the evening news in his home in Tahlequah, Oklahoma, when a youth with long hair dragged Mrs. Potts, struggling, into the room from the back part of the house. The youth demanded money and threatened to shoot them if they failed to comply. When Mr. Potts secured a box containing money, the youth threw or kicked Mrs. Potts against a table, and took the money box from Mr. Potts. Mrs. Potts seized a stick and began striking the youth, who disarmed her and struck Mr. Potts in the face with the stick, knocking him to the floor. He inflicted several blows on Mrs. Potts, seized Mr. Potts' wallet, and fled from the home.

Shortly thereafter, Mrs. Potts went to the home of a neighbor, Mr. Suttle Wheeler, who called the police and advised them of the attack and robbery. The police arrived at approximately 7:00 p. m. and, apparently securing a description of the assailant, left. They returned shortly thereafter with the defendant in custody.

Mr. Wheeler testified over the defendant's objections that at that time both Mr. and Mrs. Potts positively identified the defendant as their assailant and robber, and that the defendant remained silent.

During this time Mrs. Potts treated the cut on her husband's face. Although complaining of pain in her chest, she declined the offer of the police to take her to the hospital. By midnight, however, Mrs. Potts' condition had worsened, and she was taken to the hospital, where she died forty-five minutes later as a result of internal injuries she had sustained during the attack.

Mr. Potts, who appeared at the hearing in borrowed glasses that had no lenses, testified that at first he took the intruder to be "the Chaney boy," who had been in the house earlier that day. His initial in-court identification of the defendant as the assailant was not firm; but subsequently on cross-examination, and again on redirect-examination, he positively stated that the defendant was the person.

On appeal the defendant's principal assignment of error is that the finding of nonamenability to rehabilitation within the juvenile system was not supported by sufficient evidence. In his argument the defendant correctly states the law that a finding of nonamenability must be based on substantial evidence, J. T. P. v. State, Okl.Cr., 544 P.2d 1270 (1975); Calhoon v. State, Okl.Cr., 548 P.2d 1037 (1976), and that substantial evidence is something more than a scintilla, Calhoon, supra, and Terrell v. State, Okl.Cr., 551 P.2d 1143 (1976). However, the defendant is not correct in asserting that there was not substantial evidence in the instant case. Doctor H. B. J. Deitsche, a clinical psychologist at Eastern State Hospital, testified to the results of the battery of tests which he administered to the defendant, and said that the diagnosis reached by the staff at the hospital was that of anti-social personality, or that the defendant was sociopathic. Mr. Steven Sumner, a social worker with Court Related and Community Services, testified that he had worked with the defendant longer than any other juvenile in his experience for over a year; and that it was his opinion that the defendant could not be rehabilitated through the facilities available to the juvenile system. The defendant's past history includes an adjudication as a child in need of supervision because of truancy, and an adjudication as a delinquent as a result of possession of stolen property. Clearly there was substantial evidence to support the finding of the judge that the defendant was not amenable to rehabilitation within the juvenile system, and this assignment of error is without merit.

The other assignments of error raised by the defendant that the statement of reasons given by the court in its order of certification is insufficient to permit a meaningful review, and that the defendant was denied due process of law and equal protection of the law by the procedure followed by the trial court were not argued in his brief. After a careful review of the record, we hold that these assignments are also without merit. In his order of certification the judge carefully set out the reasons for his finding; and we find no constitutional deficiencies...