State ex rel. Young v. Warren, 24
| Decision Date | 07 May 1975 |
| Docket Number | No. 24,P,No. O--75--103,24,O--75--103 |
| Citation | 1975 OK CR 77,536 P.2d 965 |
| Parties | STATE of Oklahoma ex rel. David YOUNG, District Attorney, Districtetitioner, v. The Honorable Marshall WARREN, Associate District Judge McIntosh County, State of Oklahoma, Original Respondent, and Larry Derryberry, Attorney General, State of Oklahoma, Intervenor, and The Honorable Kenneth G. Hughes, District Judge, Creek County, Oklahoma, et al., Additional Respondents. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
This is an original proceeding filed in this Court on March 7, 1975, asking the Court to assume original jurisdiction and to issue writ of mandamus to the Respondent, The Honorable Marshall Arren, Associate District Judge in and for McIntosh County, Oklahoma, commanding certain relief in reference to the trial of the case of State of Oklahoma vs. Jess Henson, defendant, No. F--75--26, pending in the District Court in McIntosh County, Oklahoma, a case originally filed in the District Court of Creek County, Oklahoma, in which the amended Information charges the said Jess Henson and others with the crime of Murder in the First Degree.
On March 14, 1975, Intervenor, the Attorney General of the State of Oklahoma, filed herein Application for Leave to Intervene and Request for Joinder of Additional Parties and for Special Findings.
By order of March 18, 1975, this Court assumed original jurisdiction and sustained the application for leave to intervene, named additional respondents, directed the production and filing herein of various trial court files, records and transcripts and stayed all proceedings in the trial courts, including the case in McIntosh County. A copy of the order of March 18, 1975, is annexed hereto as Appendix No. 1 and by reference is made a part hereof. Since the issuance of the order, this Court has been furnished with the requested files, records, and transcripts and from these and the previous statements and arguments of counsel as referred to in the order, the Court now disposes of this case as follows:
First, with the records now before the Court it appears that in some instances the order of March 18 is inaccurate as to certain data but the same is hereby corrected to conform to the findings herein.
On July 19, 1974, an Information was filed in the Sapulpa Division of the District Court of Creek County, Oklahoma, in Case No. CRF--74--123, against Jess Henson, Ronnie Lee Gibson and Barry Rame in which it was charged they had committed the crime of Murder in the First Degree (21 O.S.Supp.1974, § 701.1(2)) in Creek County, Oklahoma on the 19th day of June 1974, while acting together and in concert with each other in that they unlawfully, wilfully and feloniously, without authority of law, and with a premeditated design to effect the death of one Mrs. Earl Bush, while being then and there engaged in committing or attempting to commit the crime of Armed Robbery, killed the said Mrs. Earl Bush by inflicting stab wounds upon her body, from which she died.
Thereafter, an amended Information was filed August 8, 1974, charging the same crime against the same defendants and one other, Clifford Rame. Subsequently, on September 12, 1974, a second Information was filed charging substantially the same crime, naming the deceased as Mrs. Earl Bush, also known as Susan Bush, and naming six defendants, Jess Henson, Ronnie Lee Gibson, Barry Lynn Rame, Clifford Rame, Thomas Andrew Bias and Kenneth Gregory. It is under this second amended Information that the case is now being prosecuted.
Preliminary hearing was held between October 2 and October 9, 1974, before the Respondent, The Honorable Clyde Patrick, Special Judge, Sapulpa Division, District Court, Creek County, Oklahoma, acting as an examining magistrate, during which the defendants Barry Rame and Clifford Rame refused to testify under the Fifth Amendment of the Federal Constitution of the United States. Whereupon, they were taken before the Respondent, The Honorable Kenneth Hughes, District Judge, Creek County, Oklahoma, who granted each immunity, following which each, at the direction of Judge Hughes, testified at the preliminary hearing as a witness for the State of Oklahoma. At the conclusion of the preliminary examination, defendants Jess Henson, Ronnie Lee Gibson, Thomas Andrew Bias and Kenneth Gregory were held to answer said charge in the trial division of the District Court of said county but the defendants Barry Rame and Clifford Rame were ordered discharged and the case dismissed as to them by the examining magistrate.
Thereafter, each of said defendants was duly arraigned and each entered a plea of not guilty.
On November 8, 1974, the Respondent, The Honorable Bill Haworth, District Judge, Muskogee County, Oklahoma, was the Presiding Judge of the East-Central Judicial Administrative District, having assigned himself to preside over pending matters in the case of Creek County, sustained defendant Jess Henson's Motion for Change of Venue and ordered the trial venue changed from Creek County, a part of District Court Judicial District No. 24, to Muskogee County, a part of District Court Judicial District No. 15. Although neither of the other defendants filed a motion for change of venue, nor acquiesced in defendant Henson's motion, defendant Ronnie Lee Gibson formally objecting, the order directing said change of venue to Muskogee County was entered as to each and all of the defendants and the case was thereupon transferred to the District Court of Muskogee County as to each of said four defendants, and the case was ordered for trial on January 6, 1975, before The Honorable Bill Haworth, District Judge.
It clearly appears from the record before the Court that on January 3, 1975, all of the attorneys of record for all four of the defendants and the Assistant District Attorney of Creek County appeared before Judge Haworth in his chambers in the City of Muskogee for the purpose of discussing and pursuing, if possible, certain plea bargaining and negotiating which apparently proposed the reduction of the charge of Murder in the First Degree to Murder in the Second Degree as to each and all of the defendants if they would plead guilty to the reduced charge upon a recommendation of ten (10) years to life imprisonment. The record shows the defendant Henson's attorneys refused the proposal, insisting he denied any guilt, knowledge or involvement in the crime alleged against him. A long-distance telephone conversation was then had with Mr. David Young, the District Attorney, who was then in Sapulpa, and while all were still present before Judge Haworth, pursuing further the possibility of reaching some agreement. The attorneys of the defendants, other than Henson, expressed a willingness to give statements as to their participation involving the murder of Mrs. Bush and to plead guilty to Murder in the Second Degree, but suffice it to say, no agreements were made, the plea bargaining and negotiating failed and the meeting was concluded.
On January 6, 1975, Judge Haworth granted defendant Henson's motion for severance and on that same date trial of Jess Henson commenced, jury impaneled and sworn to try the case. The following minute was made in reference to the trial proceedings of January 6, 1975.
'Mr. Cowan appears for the State of Oklahoma. Mr. David Harris appears with defendant Gregory. Mr. Sellers and Fitzsimmons appear with Henson. Creekmore Wallace appears with Andrew Bias. Mr. Sam Caldwell appears as local counsel for Mr. Henson. Panel is sworn as to qualifications. Court explains case. Defendants Bias and Gregory will be severed from this case. Mr. Philbeck, counsel for Clifford Rame, appears and inquires as to what court intends to do regarding their testimony. Court is not going to do anything for the reason that Judge Hughes has already made a ruling per the matter and it would be improper if this court overruled or sustained anything he ordered. Mr. Cowan states that Mr. Bias and Mr. Gregory will give statements and their charges will be reduced to second degree murder, and that they will plea, such sentence being from ten years to life imprisonment.
Mr. Wallace moves their case be taken back to Creek County. Court takes motion under advisement. These motions were heard while the jury was in recess. Mr. Sellers also moved for mistrial during jury's absence from the courtroom. Overruled, exceptions. Jury duly impaneled and sworn.'
During the trial of defendant Henson, several motions were filed on Henson's behalf for mistrial and on January 8, 1975; the court sustained his motion for mistrial and entered written order accordingly and the court, of its own accord, ordered the case transferred to the District Court of Tulsa County, Oklahoma, and directed that the files and court records be transferred forthwith to Tulsa and that the trial of the case commence anew on March 3, 1975. Prior to the transfer, the defendant filed formal motion to vacate said order.
The record reflects that the said records and files were so delivered and the case docketed and indexed in the District Court of Tulsa County under Case No. CRF--75--67 and that thereafter and on January 22, 1975, Judge Haworth entered an order, as Presiding Judge...
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Dutton v. State, F-79-337
...venue was granted to his accomplice does not necessarily dictate that a change of venue be granted appellant. See, State ex rel. Young v. Warren, 536 P.2d 965 (Okl.Cr.1975). The trial judge did not abuse his discretion in denying appellant's Appellant next assigns as error the trial court's......
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