permitting the defendant’s sister to testify to defendant’s conduct but not his “psychological problems”
How later courts described this case
- permitting the defendant’s sister to testify to defendant’s conduct but not his “psychological problems”
- not § 11, kidnap/rapes/sodomy criminal episode has separate crimes with different elements and dissimilar proof
- “[A] lay witness is not permitted to give an opinion calling for a medical diagnosis.”
Written by the judges who cited it.
The opinion
PARKS, Presiding Judge,
dissenting:
I strongly dissent to the majority’s disposition of appellant’s fifth assignment of error. Therein, appellant asserts that his conviction must be reversed because the trial court failed to conduct a post-examination competency hearing. I agree. 1
To characterize the meager colloquy between defense counsel and the trial court on the day of preliminary hearing as an appropriate “hearing” for purposes of 22 O.S.1981, § 1175.1 et seq., which the majority so does, is simply ludicrous. A review of the record clearly indicates that, on the date set for preliminary hearing, defense counsel appeared in court prepared to defend his client against the present charges at a preliminary hearing. The trial court then essentially ambushed appellant by reading into evidence Dr. Garcia’s findings and requesting rebuttal from the defense. At that time, appellant’s attorney candidly *328 informed the court that he was not then prepared to rebut or contradict the psychiatric evaluation. Such response was entirely justifiable in that, as previously stated, defense counsel appeared on the day in question to represent appellant at his preliminary hearing. He then stated that he did not wish to waive appellant’s right to have a jury determine his competency to stand trial or his right to seek the service of an independent psychiatrist if it later became necessary to do so. The trial judge thereafter asked the prosecutor if he had any comment, he announced that he did not, and the preliminary hearing was begun. It should also be noted that no record was made with respect to the required findings of the court pursuant to §§ 1175.4(E) and 1175.5.
On the basis of the foregoing, I cannot agree that defense counsel was afforded the opportunity to present evidence and argument on behalf of appellant, that he chose not to present the same, or that his statements constituted a waiver of the right to further hearing. Accordingly, I would reverse and remand this cause to the district court and command that an appropriate hearing be conducted pursuant to § 1175.1, et seq., prior to the commencement of criminal proceedings.
. This Court has previously remanded similar cases to the district court for the purpose of determining (1) whether or not it was then feasible to conduct an appropriate post-examination competency hearing; and if so, (2) whether the appellant was competent to stand trial when he so did. See Anderson v. State, 765 P.2d 1232 (Okl.Cr.1988). While it is my opinion that failure to hold a post-examination competency hearing prior to trial mandates reversal, See Anderson, 765 P.2d at 1234 (Parks, J., dissenting), I have yielded to the majority of this Court's disposition of like claims on the basis of stare decisis. The abovestated remedy is available to this Court, yet the majority chooses not to employ it. Therefore, I agree with appellant that this case should be reversed and remanded for a new trial.