Owens v. State, F-78-139

• Decision Date: 21 December 1978
• Docket Number: No. F-78-139,F-78-139
• Citation: 588 P.2d 581
• Parties: Mickey Allen OWENS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 581

588 P.2d 581

Mickey Allen OWENS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-78-139.

Court of Criminal Appeals of Oklahoma.

Dec. 21, 1978.

An Appeal from the District Court, Pittsburg County; Robert A. Layden, judge.

Mickey Allen Owens, appellant, was convicted of the offense of Murder in the Second Degree; was sentenced to ten (10) years to life imprisonment, and appeals. AFFIRMED.

Sam F. Stowers, McAlester, for appellant.

Larry Derryberry, Atty. Gen., Ross N. Lillard, III, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Judge:

Mickey Allen Owens, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Pittsburg County, Case No. F-77-18, of the offense of Murder in the Second Degree. He was given an indeterminate sentence of ten (10) years to life imprisonment, and from that judgment and sentence an appeal has been perfected to this Court.

On March 5, 1976, Sammy Yackeyonny was found dead in his cell at the Oklahoma State penitentiary. An autopsy performed that day revealed the cause of death to be multiple stab wounds. Frank Bourland, an agent of the Oklahoma State Bureau of Investigation, investigated the incident and interviewed the defendant. After that interview, the defendant was removed from the general inmate population and placed in administrative segregation. A criminal information was filed against defendant on January 18, 1977, and trial was begun on September 19, 1977. Bourland testified that the defendant, after being read the Miranda warnings, claimed the stabbing was in self-defense.

Defendant testified that the victim pulled a knife on him and after a struggle he took it from Yackeyonny and then stabbed him numerous times in self-defense. David Green, an inmate at the penitentiary, testified on behalf of the defendant to the effect that he counseled defendant to go to the victim's cell to straighten out a dispute concerning cigarettes stolen from the victim. Green further testified he observed the defendant enter the cell and shortly thereafter saw the defendant and Yackeyonny struggling over the knife. The defendant eventually gained control of the knife and stabbed the victim. After the defendant returned to his cell, he told Green that Yackeyonny had tried to kill him.

The defendant's first assignment of error is that the trial court erred in refusing to sustain his motion to dismiss the charge by reason of a denial of his right to a speedy trial as guaranteed by the Sixth Amendment, and his right to due process of law as guaranteed by the Fifth Amendment.

First for consideration is defendant's Sixth Amendment claim. Initially, we note that the defendant is complaining of the ten month period between the commission of the crime and the filing of the information. In Miller v. State, Okl.Cr., 522 P.2d 642 (1974), this Court in ruling on a similar claim took note of United States v. Marion 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In Marion, the United States Supreme Court held that the Sixth Amendment right to a speedy trial applies to an accused and that one is not an accused until an information or indictment is filed or the person is in actual custody or has been arrested. It is defendant's argument that his interrogation by the OSBI and subsequent transfer to administrative lockup was enough to place him in an accused's status, and this triggered the protection of the Sixth Amendment. The Fifth Circuit Court of Appeals in United States v. Duke, 527 F.2d 386 (1976), was faced with a similar argument. The Court there held that administrative segregation of an inmate by prison officials following an alleged criminal offense did not render him an accused for purposes of determining whether he was denied a speedy trial by the prosecution's alleged delay in indicting him. It is the view of this Court that the administrative lockup of an inmate after the alleged commission of a crime cannot be equated with the arrest of a person previously at liberty so as to place the inmate in an accused's status. The defendant, not being an accused, was not entitled to the protections of the speedy trial provision of the Sixth Amendment.

Next for consideration is the defendant's Fifth Amendment due process claim. It was held in Rutledge v. State, Okl.Cr., 527 P.2d 1373, 1375 (1974), that if an information is filed well within the statute of limitations then a delay between the date of the commission of the alleged crime and the filing of the information would not constitute a violation of the principles of due process, unless it was shown that the delay caused substantial prejudice to the defendant's right to a fair trial. In State v. Duke, Okl.Cr., 561 P.2d 582, 584 (1977), this Court after ruling that Sixth Amendment protections were inapplicable to the preaccusation delay involved, applied the balancing test suggested in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to measure possible prejudice resulting from preaccusation delay. Although this test was laid down by the United States...