Matter of M.W.N.

OPINION BUSSEY, Judge: M. W. N., a juvenile, appeals from an order of the Juvenile Division of the District Court, Craig County, Oklahoma, waiving jurisdiction over him and certifying him to stand trial as an adult for the offense of Arson in the Second Degree in Case No. JF-78-2, pursuant to 10 O.S.Supp.1977, § 1112. From said order a timely appeal has been perfected to this Court. The State’s first witness was Charles Guthrie who testified that at approximately 8:30 or 9:00 p. m. on December 31, 1977, he observed a nearby hay barn on fire. Un-dersheriff Carol Chaney then testified that he arrived on the scene at approximately 10:00 p. m. on the night of December 31, 1977, and that he observed a barn which was completely engulfed by flames. The next witness was Wade H. Kornegay who testified that a hay barn belonging to him had been destroyed by fire on the night of December 31, 1977. Phil McDrummond, owner of the hay stored in the barn, testified that he had over 6,000 bales of hay in the barn at the time of the fire. The State then called Donald Scott who testified that he had been with the juvenile and Buddy Owens on December 31, 1977. The witness related that he, the juvenile and Buddy Owens had been riding around town, drinking beer on the night in question and that they went north of town to a barn where the juvenile and Owens got out of the truck and walked to the barn. The witness further related that he remained in the truck which was approximately 50 yards from the barn and, further, that he had seen the juvenile and Owens both strike matches on the barn. Finally, the witness testified that the barn began to burn and that he, the juvenile and Owens then drove back to town. On cross-examination, the witness admitted that he had not actually seen the juvenile strike any matches, but that he just knew the barn was burning. The next witness for the State was Ms. Nancy Moran, a juvenile counselor with the Court Related Community Services. She testified as to the juvenile’s past adjudications as a juvenile in need of supervision and, further, that he had been placed in the custody of the Department of Social and Rehabilitative Services on three prior occasions. Finally, Ms. Moran testified, over objection, that in her opinion the juvenile should be certified as an adult because he could not be rehabilitated in the juvenile system. The juvenile’s father was then called as the only witness for the defense. He testified that his son had a good emotional attitude at home, but that his attitude was different when he was around other boys. He further testified that his son was married and that he was frightened about the certification hearing because he knew he had done wrong. Finally, the juvenile’s father testified that in his opinion the juvenile was not a fully mature adult and that he should not be certified to stand trial as an adult. [694] In his first assignment of error, the juvenile contends that in making its decision the court improperly considered a certification study which had not been admitted into evidence and, as a result, he was not given a fair opportunity to examine, criticize and refute the findings in the study. In C. P. v. State, Okl.Cr., 562 P.2d 989 (1977), we held that a court’s independent use of extrajudicial records without affording interested parties a fair opportunity to examine, criticize and refute findings in such a report and without informing counsel for the juvenile what reports were being considered, constituted a denial of due process. In that case, the certification order specifically stated that the court independently considered a report which was not in evidence. The present case is readily distinguishable from C. P. v. State, supra, for two reasons. Here, the certification study was made a part of the record even though it was not admitted into evidence. However, there is nothing reflected in the certification order indicating that the court considered the study in its finding of nonamen-ability to rehabilitation. The second reason and the one we find highly significant is the fact that Ms. Moran, the very person who prepared the study, was called as a witness by the State for the purpose of introducing evidence through her testimony as to the juvenile’s nonamenability to rehabilitation. Ms. Moran gave direct testimony of substantially the same facts contained in the study and was subjected to extensive cross-examination by defense counsel who had a copy of the study. Based on the foregoing, we are of the opinion that the juvenile, through cross-examination of the very person who prepared the study, did have a fair opportunity to examine, criticize and refute the findings contained in the study and, furthermore, even if the court did independently consider the extrajudicial report, such would not constitute error, because the report was merely cumulative to the direct testimony of Ms. Moran. The second assignment of error is that the court found prosecutive merit solely on the uncorroborated testimony of Donald Scott, an alleged accomplice. For the purpose of this assignment of error, we assume without deciding that Donald Scott was an accomplice. In support of this contention, the juvenile relies on Matter of J.S., Okl.Cr., 556 P.2d 641 (1976), wherein we held that prosecutive merit cannot be found solely on the uncorroborated testimony of an accomplice. The holding in Matter of J.S. was based on State v. Wofford, Okl.Cr., 549 P.2d 823 (1976), where we held that the uncorroborated testimony of an accomplice would not support a finding of probable cause at a preliminary hearing for an adult. In Matter of J.S., decided shortly after Wofford, we determined that there was no substantial reason or logic to allow prosecutive merit to be found in certification hearing solely upon the uncorroborated testimony of an accomplice when the same testimony at a preliminary hearing for an adult would not support a finding of probable cause. Subsequent to our holdings in Wofford and Matter of J.S., we decided the case of Bennett v. State, Okl.Cr., 570 P.2d 345 (1977), where we expressly overruled Wofford and held that 22 O.S.1971, § 742, requiring that an accomplice’s testimony be corroborated, only applied to a trial on the merits in which a conviction could result and that the statute did not require corroboration at a preliminary hearing to determine if probable cause existed. Since our holding in Matter of J.S. was the logical result of Wofford, which was subsequently overruled by Bennett, we now hold that 22 O.S.1971, § 742, does not require corroboration of an accomplice’s testimony at the prosecutive merit stage of a certification hearing, and, furthermore, we expressly overrule Matter of J.S., supra. In his third assignment of error, the juvenile contends he was denied due process because the written order certifying him to stand trial as an adult was not made a part of the record until a date after the record on appeal was certified as complete. An examination of the record reveals that it was certified as complete on April 20, 1978, however, the certification order was not filed until April 28, 1978. The juvenile contends that this attempt to comply with [695] 10 O.S.Supp.1977, § 1112, was too late and constitutes a denial of due process. We are unable to agree with this contention because the Rules of the Court of Criminal Appeals, 22 O.S.Supp.1974, Ch. 18, App., rule 1.14, provides as follows: “After an appeal has been duly and regularly lodged in this Court upon application of either appellant or appellee or upon this Court’s own Motion, the majority of the Court may within its discretion direct a supplementation of the record when necessary for a determination of any issue properly raised on appeal, or when necessary may direct the trial court to conduct an Evidentiary Hearing on said issue.” The foregoing rule gives this Court discretion to order supplementation of the record on its own motion. We must now determine whether or not this is a proper case to exercise such discretion. The record reveals that the juvenile was furnished a copy of the certification order prior to filing his petition in error. Although the written order was not in the record prior to the same being certified as complete, a certified copy of the order was included in the record on appeal sent to this Court. Since the juvenile was provided with a copy of the order prior to filing his petition in error, we are of the opinion that he had an adequate opportunity to attack the findings contained therein and, furthermore, since the order is presently before this Court and there is no prejudice to the juvenile’s rights, we hold that the record has been properly supplemented and, accordingly, find the juvenile’s third assignment of error to be without merit. For the foregoing reasons, the order of the Juvenile Division of the District Court is hereby AFFIRMED. CORNISH, P. J., dissents. BRETT, J., concurs.