K.F. v. State

1990 OK CR 58, 797 P.2d 1006, 61 O.B.A.J. 2318, 1990 Okla. Crim. App. LEXIS 58
CourtCourt of Criminal Appeals of Oklahoma
DecidedSeptember 6, 1990
DocketNo. J-90-0512
StatusPublished
Cited by10 cases

This text of 1990 OK CR 58 (K.F. v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
K.F. v. State, 1990 OK CR 58, 797 P.2d 1006, 61 O.B.A.J. 2318, 1990 Okla. Crim. App. LEXIS 58 (Okla. Ct. App. 1990).

Opinion

[1007]*1007OPINION

LANE, Vice-Presiding Judge:

Appellant, a 17 year old juvenile, was charged in the Juvenile Division of the District Court of Oklahoma County with the offense of Possession of a Controlled Dangerous Substance with Intent To Distribute in Case No. JF-89-1127. The State of Oklahoma petitioned the court to certify the appellant to stand trial as an adult. A prosecutive merit hearing was held, and upon the court’s finding that probable cause existed to show that the alleged crime was committed and that the juvenile committed the crime a certification hearing was held resulting in Appellant being certified to stand trial as an adult in the felony division of the district court. An appeal has been duly affected to this court; and upon proper consideration we affirm.

Since Appellant contends that the trial court committed reversible error in both of the hearings, we will treat each hearing separately in this opinion.

Prosecutive Merit Hearing.

K.P. was stopped for a traffic violation by Oklahoma City police officer Stanley Craig Olive. Upon discovering that Appellant did not have a driver’s license in his possession he arrested K.F., conducted a “pat down” search and placed him in the police unit. The officer required one of Appellant’s two passengers to sit in the unit with Appellant. Olive then radioed for another unit to come to the scene to take charge of the second passenger, turned on a tape recorder that was hidden in the vehicle and went to Appellant’s vehicle to secure it for impoundment. Upon returning to his unit, the officer retrieved the recorder and listened to its recording of a conversation between the appellant and the other person in the police car. The taped conversation revealed that K.F. had some rock cocaine in his coat pocket. Olive ordered Appellant out of the unit, searched him a second time and found 20 “rocks” of cocaine in K.F.’s coat. Olive arrested both Appellant and the passenger for possession of a controlled and dangerous substance with intent to distribute.

Appellant asked the trial court to suppress the evidence obtained as a result of the second search, and now contends that if this evidence is suppressed the court could not find prosecutive merit. Relying on the Securities of Communications Act, 13 O.S. Supp.1989, § 176.1, et seq., Appellant asserts that the officer violated the provisions of the act when he secretly recorded the conversation between Appellant and his friend. Section 176.3(1) makes it unlawful for any person to intercept “any wire, oral or electronic communication.” Section 176.2(11) defines an oral communication as “any communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” The Act further specifies in § 176.13 that any evidence obtained in violation of the Act is not admissible in an action against one of the communicants.

We have not previously interpreted these provisions, but other jurisdictions have construed legislative language similar to our statutes. See, Brown v. Florida, 349 So.2d 1196 (Fla.App.1977), cert. denied 434 U.S. 1078, 98 S.Ct. 1271, 55 L.Ed.2d 785 (1977) and New Mexico v. Lucero, 96 N.M. 126, 628 P.2d 696 (App.1971). In both of these cases officers recorded conversations between two people as they sat alone in a police car. The outcome of both eases turned on whether or not there was a reasonable expectation of privacy as required by language like that in our § 176.2. The Florida court reasoned:

Once a person has been taken into custody by law enforcement authorities, his right to privacy has been effectively diminished, and he has no reasonable expectation of privacy.

Brown, 349 So.2d at 1197. The opinion goes on to explain that it does not matter if the person in custody has been charged and made an inmate of the jail, is in the police station prior to being charged or in a police vehicle. Furthermore, the New Mexico court determined that the actions of the police did not violate the arrestee’s “Miranda rights” in that there was custody [1008]*1008but no interrogation on the part of the officer. We agree with this reasoning and find that the trial court did not commit error in admitting the evidence seized in the search of Appellant’s pocket, and with that evidence, finding that there was prose-cutive merit to the offense alleged.

Certification Hearing.

Two witnesses testified at the certification hearing which was held some time after the finding of prosecutive merit. Gary Warmack, a soeial worker with the Department of Human Services testified that he was supervising K.F. as the result of an emergency in need of treatment petition filed subsequent to the date of this alleged offense. Appellant has had five contacts with the juvenile system other than this matter. There had been adjudications for Rape, Kidnapping and Joyriding which were dismissed after periods of supervision and one other emergency in need of treatment case that was also dismissed after a period of treatment. K.F. was working well with his plan of treatment in that his impulse control was improving and he was not a threat to the community if he continued to take his medication. War-mack recommended that Appellant be retained in the juvenile system with supervision and a requirement that he continue his treatment. If retained in the system he would be placed in the community and supervised for six months until he reached his 18th birthday. It was possible to continue supervision until he reached 19 years of age.

Dr. John R. Smith, a psychiatrist who was treating K.F. as a result of the current in need of treatment case, testified that he first came in contact with the appellant approximately one and a half years earlier when he was declared in need of treatment the first time. Appellant suffered from an inherited brain disease associated with hallucinations, delusions and paranoid thinking. His mother and grandmother suffer from the same disease. The malady is treatable with medication, and K.F. has responded well to this therapy. However, when he goes off his medication he becomes more paranoid, more clouded and confused in his way of thinking, more depressed and more vulnerable to influences and misinterpreting reality. When he is on medication he is able to distinguish right from wrong, but when he does not take his prescribed medicine he is less able to adhere to the right. On both referrals Appellant required hospitalization for a short period of time and was then able to function in his normal environment as long as he took his medicine. He will require the medication for the rest of his life, and the doctor could not guarantee that K.F. would continue taking it if he were not supervised. The doctor recommended that the appellant be retained in the juvenile system.

After considering the above testimony, the court made the following comments in the record:

Alright, the Court finds as follows, that the offense of possession of CDS with intent is extremely serious, Nineteen days after this incident occurred, the legislature made it a reverse certification offense to stress how serious they consider it.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Project Veritas v. Michael Schmidt
72 F.4th 1043 (Ninth Circuit, 2023)
State v. Torgrimson
637 N.W.2d 345 (Court of Appeals of Minnesota, 2002)
State v. Trevino
63 S.W.3d 512 (Court of Appeals of Texas, 2001)
Untitled Texas Attorney General Opinion
Texas Attorney General Reports, 2000
State v. Edrozo
578 N.W.2d 719 (Supreme Court of Minnesota, 1998)
State v. Ramirez
535 N.W.2d 847 (South Dakota Supreme Court, 1995)
People v. Palmer
888 P.2d 348 (Colorado Court of Appeals, 1994)
KF v. State
797 P.2d 1006 (Court of Criminal Appeals of Oklahoma, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
1990 OK CR 58, 797 P.2d 1006, 61 O.B.A.J. 2318, 1990 Okla. Crim. App. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kf-v-state-oklacrimapp-1990.