Tate v. State

• Decision Date: 10 May 1995
• Docket Number: No. F-87-982,F-87-982
• Citation: 1995 OK CR 24,896 P.2d 1182
• Parties: Kenneth Don TATE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1182

896 P.2d 1182

Kenneth Don TATE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-87-982.

Court of Criminal Appeals of Oklahoma.

May 10, 1995.

An appeal from the District Court of Oklahoma County; Jack R. Parr, District Judge.

Kenneth Don Tate, appellant, was tried by a jury and convicted of Murder in the First Degree for the shooting death of Rosalee Tate (Count I), Murder in the First Degree for the shooting death of Jeffrey White (Count II), and Pointing a Firearm (Count III) in the District Court of Oklahoma County, Case No. CRF-87-1820. Appellant was sentenced to death for the murder of Rosalee Tate, life imprisonment for the murder of Jeffrey White, and ten (10) years for the offense of Pointing a Firearm. Counts II and III are AFFIRMED. Appellant's conviction for the murder of Rosalee Tate is AFFIRMED, but his death sentence is REVERSED Irven R. Box and Diane Clowdus, Oklahoma City, for appellant at trial.

and the matter REMANDED to District Court for resentencing.

Patty Palmer and Jamie D. Pybas, Asst. Appellate Indigent Defenders, Norman, for appellant on appeal.

Patrick Morgan and Sandra Stensaas, Asst. Dist. Attys., Oklahoma City, for the State at trial.

Susan Brimer Loving, Atty. Gen. of Oklahoma and Sandra D. Howard, Asst. Atty. Gen., Chief, Crim. Div., Oklahoma City, for appellee.

OPINION

JOHNSON, Presiding Judge:

Appellant, Kenneth Don Tate, was tried by a jury and convicted of Murder in the First Degree for the shooting death of Rosalee Tate (Count I), Murder in the First Degree for the shooting death of Jeffrey White (Count II), and Pointing a Firearm (Count III) in the District Court of Oklahoma County, Case No. CRF-87-1820. The jury found the following two aggravating circumstances existed in the murder of Rosalee Tate: (1) that the murder was especially heinous, atrocious or cruel; and (2) that appellant knowingly created a great risk of death to more than one person. As to the murder of Jeffrey White, the jury only found the aggravating circumstance of great risk of death to more than one person. The jury ultimately recommended appellant be sentenced to death for the murder of Rosalee Tate, life imprisonment for the murder of Jeffrey White, and ten (10) years for the offense of Pointing a Firearm. The trial court sentenced appellant accordingly. From this judgment and sentence, appellant has now perfected this appeal.

On the afternoon of April 5, 1987, appellant shot to death his former wife, Rosalee Tate, and her friend, Jeffrey White. The incident occurred in the parking lot of Beachler's I.G.A. in Midwest City, Oklahoma. Appellant turned himself in at the Midwest City police station shortly after the shootings. Other relevant facts will be discussed in the assignment of error to which they relate.

I. ISSUES RELATING TO COMPETENCY

On May 15, 1987, Mr. Tim Wilson, appellant's attorney at that time, filed an Application for Determination of Competency. An order granting the application was entered on May 29, 1987. Pursuant to this order, appellant was examined by Dr. Larry M. Prater, M.D. on June 5, 1987. On June 10, 1987, Dr. Prater issued a report which concluded that appellant was competent to stand trial. Thereafter, on June 16, 1987, defense counsel filed an Application to Resume Criminal Proceedings for the reason that appellant had been determined to be competent. Judge Joe Cannon granted appellant's request that same day. In his first assignment of error, appellant contended that his convictions must be reversed because the trial court failed to conduct the mandatory post-examination competency hearing prior to the resumption of criminal proceedings.

In an unpublished order dated June 22, 1990, this Court remanded this cause to the district court for the purposes of conducting a proper hearing. We specifically ordered:

The trial court make findings concerning the feasibility of presently determining appellant's competency to stand trial in light of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), as well as findings of his competency to stand trial when he did.

A hearing to determine the feasibility of conducting a retrospective competency hearing was held on August 12, 1992, before the Honorable Eugene H. Mathews. At the conclusion of this hearing, Judge Mathews took the matter under advisement. On August 21, 1992, Judge Mathews entered his written findings of fact and conclusions of law in which he concluded that it was feasible to conduct a post-evaluation competency hearing. Thereafter, on June 9, 1993, a jury found that appellant had been competent to stand trial in November of 1987. The findings in this regard were forwarded to this Court, and we permitted additional time for both parties to file supplemental briefs on this matter.

A.

Appellant first contends that retrospective competency proceedings violate Title 22 O.S.1991, §§ 1175.4 through 1175.8 and the Due Process Clause of the United States and Oklahoma Constitutions. However, the failure to conduct a competency hearing concurrently with the trial is not per se violative of due process. Clayton v. State, 840 P.2d 18, 24-25 (Okl.Cr.1992); Boltz v. State, 806 P.2d 1117, 1121 (Okl.Cr.1991); Anderson v. State, 765 P.2d 1232, 1233 (Okl.Cr.1988); Rowell v. State, 699 P.2d 651 (Okl.Cr.1985). Rather, "if a defendant's competency at the time of trial can be meaningfully determined at a subsequent time on the basis of credible and competent evidence, then error committed by a district court in failing to hold a hearing at the proper time can be cured." Boltz, 806 P.2d at 1121. Consequently, the pivotal issue is whether a retrospective competency determination was feasible.

Upon thorough review of the record in the instant case, we find that trial court properly found that a retrospective competency determination was feasible. The State demonstrated that the following evidence/witnesses would be available if a retrospective competency hearing was conducted: (1) Dr. Larry Prater, M.D., the psychiatrist who conducted the psychological evaluation of appellant; (2) Dr. Prater's written report; and (3) appellant's three attorneys who represented him prior to and at trial. Although this list may not be as lengthy as the list of available evidence/witnesses discussed in Clayton, 840 P.2d at 25, the bottom line is that competent evidence existed from which a jury could make a meaningful determination of appellant's competency at the time of his 1987 trial. Therefore, we find no error.

Appellant further asserts that a meaningful retrospective competency hearing was rendered unfeasible by the lengthy lapse of time since his 1987 trial. However, "delays occasioned by a remand and continuances do not necessarily preclude a meaningful retrospective determination." Clayton, 840 P.2d at 25. In light of the available evidence, the time lapse involved in this case did not preclude a meaningful determination of competency.

B.

Appellant contends next that Title 22 O.S.1991, § 1175.4 is unconstitutional because it improperly presumes every defendant is permanently competent and requires the allegedly incompetent person to prove his incompetence. The United States Supreme Court recently addressed this issue in Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), finding that the due process clause permits a state to apply a presumption that a criminal defendant is competent to stand trial, and to require that the defendant bear the burden of proving otherwise.

Medina addressed a California statute which placed the initial burden of proving incompetency on the party claiming incompetence. As the defendant in Medina raised the issue of competency, he bore the burden of proving his incompetency. In finding no constitutional violation, the Court stated:

Based on our review of the historical treatment of the burden of proof in competency proceedings, the operation of the challenged rule, and our precedents, we cannot say that the allocation of the burden of proof to a criminal defendant 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' (citing Patterson v. New York, 432 U.S. 197, 53 L.Ed.2d 281, 97 S.Ct. 2319 (1977)).

Id., 505 U.S. at ----, 112 S.Ct. at 2577, 120 L.Ed.2d at 363.

Nonetheless, appellant contends Medina is distinguishable because Oklahoma imposes "procedural" barriers far more rigorous than those reviewed in Medina. Appellant first contends Medina is distinguishable as a defendant in Oklahoma bears the burden of proving his incompetence regardless of whether he, the court, or even the district attorney raises the issue of competency. This distinction has no bearing on the Medina decision. The Court in Medina found that "there is no settled tradition on the proper allocation of the burden of proof in a proceeding to determine competence." Id., 505 U.S. at ----, 112 S.Ct. at 2578, 120 L.Ed.2d at 364. In reviewing decisions from all fifty States, the Court found that a number of state courts have placed the burden of proof on the defendant, while other state courts have placed the burden on the prosecution. Id. It is precisely because of this diverse placement of the burden of proof by states that the Court in Medina could not discern any historical basis for concluding that the allocation of the burden of proving competence to a defendant violates due process. Id., 505 U.S. at ----, 112 S.Ct. at 2578-79, 120 L.Ed.2d at 365.

Appellant further contends Oklahoma's competency determination statutes are more rigorous because Oklahoma requires the defendant to prove incompetence even when the defendant has previously been adjudicated incompetent to stand trial. We assume appellant is referring to the provisions contained in 22 O.S.1991, § 1175.8. Section 1175.8 specifically provides:

If the medical supervisor reports that the person appears to have achieved competency after a finding of...