State v. Durham

• Citation: 545 P.2d 805
• Decision Date: 29 January 1976
• Docket Number: No. O--75--459,O--75--459
• Parties: The STATE of Oklahoma, Appellant, v. Clarence J. DURHAM, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 805

545 P.2d 805

The STATE of Oklahoma, Appellant, v. Clarence J. DURHAM, Appellee.

No. O--75--459.

Court of Criminal Appeals of Oklahoma.

Jan. 29, 1976.

S. M. Fallis, Jr., Dist. Atty., Marvin E. Spears, Asst. Dist. Atty., Tulsa County, for appellant.

Patrick A. Williams, Tulsa, for appellee.

OPINION

BLISS, Judge:

The appellee, Clarence J. Durham, hereinafter referred to as defendant, was charged by preliminary information dated December 27, 1965, in the Common Pleas Court in and for Tulsa County, State of Oklahoma, Case No. 144263, for the crime of Murder, in violation of 21 O.S.1961, § 701. On January 25, 1966, the defendant by his then attorney of record made application to the District Court in and for said county requesting that defendant be committed to the Eastern State Hospital of Oklahoma at Vinita, a State hospital within the Department of Mental Health of the State of Oklahoma, for mental observation for a period not to exceed ninety (90) days as contemplated by 22 O.S.Supp.1965, §§ 1171 to 1174. Upon hearing, the application was granted and order entered accordingly. Within the period, the superintendent of the hospital requested a thirty (30) day extension for such observation, and the same was granted by order. During the thirty day extension and on May 19, 1966, the superintendent directed a letter to the court advising that the defendant was mentally incompetent at the time, should be returned to the custody of the court and 'committed to a mental hospital for psychiatric care and treatment.'

On May 27, 1966, a court hearing was held, attended by the State's attorney and the defendant and his attorney of record, at the conclusion of which the defendant was ordered 'transported to the Eastern State Hospital at Vinita, Oklahoma, for treatment in compliance with Title 22 Oklahoma Statutes Annot. Secs. 1171--1174, until the defendant become sane, and to await further order of court.' The record clearly indicates the defendant acquiesced in this order and made no request for jury trial as permitted by Section 1174.

On September 18, 1972, the court case consultant of the Eastern State Hospital directed a letter to the court, declaring the defendant mentally competent and requesting that defendant be removed from the hospital at the earliest possible date. On September 20, 1972, the letter was filed and the defendant was present in court for pre-preliminary examination arraignment.

At the preliminary examination held May 24, 1973, held in the District Court of Tulsa County under a new case number, CRF--73--1203, said Common Pleas Court having been merged into the District Court by reason of court reorganization effected by amendment to the Constitution of the State of Oklahoma, on the preliminary information, defendant was bound over for trial for the crime of Murder.

Transcript of the evidence at the preliminary examination or hearing reflects substantially as follows: Jewel Mae Baskin, called as a witness for the State, testified that on Christmas day, about noon, December 25, 1965, she had driven to the home of a friend in the City of Tulsa. As she parked her car, she noticed another being parked near the driveway. After she had entered the friend's home, her attention was attracted to the defendant, whom the witness did not know, standing out front holding a lady with one hand and a firearm in the other hand and apparently trying to force the lady to go with him. Fearing for the safety of her own children left in her automobile, the witness went to them and told them to go into the friend's house, which they did. She talked with the defendant, who told her that the lady he was holding was his wife and he wanted her to go with him, but she was refusing, saying, 'No, he wants to hurt me. . . . You are going to kill me. . . . You might as well do it here.' Witness Baskin's attempt to persuade the defendant against any violence failed and he shot his victim in the head with the firearm. As she lay on the ground, defendant went to his car, returned with a shotgun and blew the top of her head off. He then returned to his car and attempted suicide by shooting himself with a pistol. The police and ambulance soon arrived.

Following stipulation as to the cause of death of the victim, Jewel Bernice Durham, the State rested. Defendant offered no evidence but demurrer to the State's, asserting it did not prove the crime charged, Murder, that it did not show the defendant legally competent to know his acts and conduct at the time of the homicide and that it showed the defendant had been incarcerated in the Eastern State Hospital for over six (6) years prior to the preliminary hearing, not knowing right from wrong. The magistrate overruled the demurrer and held the defendant for trial.

Trial information was filed July 2, 1973. Defendant's Motion to Dismiss for want of jurisdiction was overruled and on October 10, 1973, defendant filed a lengthy Motion to Quash the information in which were embodied, overall, the alleged insufficiency of the evidence at the preliminary examination, allegedly reflecting lack of jurisdiction, failure to show defendant sane at the time of the alleged crime, denial of speedy trial and denial of due process. On October 23, 1973, the said Motion to Quash was heard and overruled and defendant was arraigned to which defendant stood mute and a plea of not guilty was entered by the court and the case was assigned for trial on December, 1973, jury docket unless, as suggested by the court, writ of prohibition was sought in the Court of Criminal Appeals, which the defendant did not pursue. Thereafter, the case was continued for trial six (6) different times at the request of the defendant and two (2) times at the request of both the defendant and the State of Oklahoma.

Ultimately, the case came on for trial on October 3, 1974. The State announced ready. The defense counsel responded, 'We have heretofore filed with Your Honor a Motion to Quash the Information,' and proceeded with extended observations in reference thereto as well as other positions taken by the defendant. The court, considering previous and renewed motions of the defendant, thereupon announced its ruling as follows:

'The Court will sustain the Motion to Quash.

'It is not my intention, and there has been no jury sworn in this case, to dismiss this case in such a manner that it cannot be prosecuted by the State. So, therefore, I will sustain a Motion to Quash and I believe under our statute, the sustaining of a Motion to Quash does not preclude prosecution should the Court of Criminal Appeals disagree with my opinion. Therefore, the Motion to Quash being sustained, I will in ten days issue an order of dismissal in the case if not prohibited from doing so.'

The State of Oklahoma sought writ of prohibition in the Court of Criminal Appeals in Case No. P--74--778, but the Court declined to assume original jurisdiction on March 21, 1975.

On March 24, 1975, the trial court entered its final order of dismissal of the case and discharging the defendant, referring therein to its said order of October 3, 1974. It is from this final order that this appeal has been taken and lodged herein and is basically on appeal by the State of Oklahoma from a judgment for the defendant on quashing the information, such appeal being authorized by 22 O.S.1971, § 1053.

The Court shall now proceed to consider the ingredients of said Motion to Quash.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court of the United States clearly sets forth the criteria which must be considered in the determination of a speedy trial issue:

'A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.

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'A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. . . .

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'We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In some, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.'

The trial court in dismissing the action against the defendant stated as follows:

'. . . The Court finds that the manner in which said Defendant was ordered confined to the Eastern State Hospital, Vinita, Oklahoma, was in violation of Defendant's rights to due process of law and equal protection of the law in that he was denied a speedy trial; that said delay in bringing this matter to trial has caused irreparable detriment to said Defendant and under the rulings of the Supreme Court of the United States, in the cases of Jackson vs. Indiana, 406 U.S. 715, 92 S.Ct. 1845...