Daugherty v. State

[32] I concur that a conviction should be affirmed, but not for First Degree Murder. Considering the facts of this case, I firmly believe appellant's conviction should be modified to First Degree Manslaughter and that the sentence should be likewise modified. [33] I also question the validity of the statements made by appellant during the initial interrogation. When he was asked if he wanted to talk, appellant replied, "I guess." During the interrogation appellant's mother asked, "Do you think I should get a lawyer?" These questions cast some doubt on the intelligent waiver of rights. Certainly the mother indicates that she knows little about constitutional rights. The spirit and intent of the statute requiring the presence of a parent or other guardian during the interrogation of a juvenile is to secure the constitutional safeguards of the Due Process Clause of the Constitution. Mechanical compliance with the law does not assure this protection. It is only when the State can show that both the youth and parent intelligently received knowledge of his rights and, knowing those rights, waived them that the results of the interrogation should be admissible at a subsequent hearing or trial. I do not suggest that this is a burden easily assumed. It is and should be one that requires aggressive compliance. [34] In the instant case, I would hold that the State has not properly shown that the juvenile and his mother intelligently waived the juvenile's rights at his interrogation. One fact notshown is that they were given an opportunity to confer in private prior to the interrogation. If it cannot be shown that the assistance of an adult consists of more than mere physical presence and that the adult has provided effective counsel to the juvenile, then the State has not complied with the statute. Of persuasion is the decision of the Colorado Court of Appeals in which the intent of a similar statute was interpreted as requiring parental assistance, "to provide at least some minimal assurance that a child's waiver of his right against self-incrimination is knowingly and intelligently made." Peoplein the Interest of L.B., 33 Colo. App. 1, 513 P.2d 1069, 1070 (1973), cited with approval in J.T.P. v. State, 544 P.2d 1270 (Okla. Cr. 1975). See also M.D.G. v. State, 584 P.2d 1365 (Okla. Cr. 1978). Unless the State properly demonstrates that the rights of this particular juvenile were in fact intelligently waived, any statements elicited from him during the interrogation at the police station following his arrest should be excluded from evidence. [35] Appellant's fifth, sixth and seventh assignments of error complain of the admission of the certification record at his trial. Ordinarily the statements set forth in the majority opinion would be correct. But in *Page 564 the instant case we are confronted with 10 O.S.Supp. 1980 § 1127[10-1127](a), which provides: A record of any child under this act [Juvenile Act], or any evidence given in such cause, shall not in any civil, criminal or other cause or proceeding in any court be lawful or proper evidence against the child for any purpose whatever, except in subsequent cases against the same child under this act. [Juvenile Act]. The records of law enforcement officers concerning juveniles shall be maintained separate from records of arrests, and shall not be open to public inspection, or their contents disclosed, except by order of the court. [36] Therefore, because of the foregoing statute, I believe it was improper to admit any portion of the certification record. [37] In his fourteenth assignment of error, the appellant argues that it was improper to charge him with Murder in the First Degree because Jones was acquitted of that charge when the jury returned a verdict of guilty of First Degree Manslaughter. Title 22 O.S. 1971 §§ 432[22-432] and 433 [22-433], should not apply to this situation. As applied to the present case, those sections provide that both Jones and the appellant are principals in the homicide. However, neither section requires that a specific charge be filed. As in this case, where the principal was impliedly acquitted of a charge, it was manifestly unfair to press that charge against an aider and abetter whose responsibility in the crime was nogreater. To the extent that Thomas v. State,40 Okla. Cr. 204, 267 P. 1040 (1928), and other cases cited in the majority opinion held otherwise, I would overrule them. [38] Therefore, I respectfully dissent in the majority decision as it affirms appellant's conviction for First Degree Murder and sentences him to life imprisonment. The judgment and sentence in this case shocks my conscience. I would modify the judgment to First Degree Manslaughter and the sentence to ten (10) years' imprisonment, as was imposed on the principal who fired the shot that killed Mr. Witty. However, insofar as Judge Cornish would modify the judgment of conviction to Second Degree Murder, and because this would more nearly satisfy the requirement of justice, I will concur that the judgment and sentence be modified to Second Degree Murder and to the modification of the sentence to ten (10) years' imprisonment.