# Castleberry v. State > Court of Criminal Appeals of Oklahoma · April 18, 1974 · 522 P.2d 257 URL: https://www.frixlaw.com/law-library/cases/9580976 ## Case - **Full name:** Kenneth Ray CASTLEBERRY, Appellant, v. the STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** April 18, 1974 - **Citations:** 522 P.2d 257; 1974 OK CR 83 - **Precedential status:** Published - **Opinion:** Concurrence by Bussey - **Judges:** Bliss, Brett, Bussey - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by Fulton v. State, 1975 Okla. Crim. App. LEXIS 481 (1975). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9580976 ## Opinion text BUSSEY, Judge (specially concurring with Presiding Judge Bliss’ opinion) : I am in accord with the views expressed in this opinion by Presiding Judge Bliss. The factual situation, fairly and fully set forth in his opinion, is supported by the record, unlike the facts extracted from the record to support a pre-determined conclusion of the author of the dissent. The dissenter follows his customary pattern of accepting, in its totality, the conclusions reached by Dr. Russo, and at the same time rejects and repudiates the admissibility of the conclusions as reached by the pathologist, Dr. Fogel, and the chemist, Mr. Caveny. In stressing the importance of the testimony of Dr. Russo, the dissenter seizes upon the conclusion that the defendant was a submissive person of average intelligence, and later argues that the defendant was 21 years of age and was equipped only with a 10th grade education. Although the author of the dissent acknowledges that the defendant conferred with the Elders of his church prior to his later conference with Reverend Pieratt, he places special emphasis on the latter conference as subjecting the defendant to psychological and coercive pressures. There is nothing in the record before us that would indicate that the defendant’s conference with Reverend Pieratt was without his acquiescence or consent, but to the contrary, unless we usurp the functions of the jury, the only logical conclusion that can be reached is that the defendant, whether through a feeling of remorse or guilt, or in order to seek the solace which he, as a Christian, needed, at a time of great emotional distress, freely and voluntarily sought the conference, participated in it, and apparently received some comfort and satisfaction from it. While it is true that the investigating officers strongly suspected the defendant of commiting the multiple homicides, and on more than one occasion returned him to his residence where the blood-stains remained, and questioned him regarding his recollections, such procedure might have developed evidence exculpatory of the defendant. Certainly, had this been the case, I am sure that the dissenter would have found no fault with the routine, detailed, and deliberate method employed by officers seeking the true identity of the perpetrator of these horrible crimes. The dissenter acknowledges that the defendant was fully advised of his Miranda rights and gave a tape-recorded statement to the District Attorney; that he had been treated in a humane manner and had confidence in the police officers at the time of giving his statement. This does not, in my judgment, negate the truthfulness of his statement, nor its voluntary nature. That the defendant realized he was in need of psychiatric and mental care, and believed that the officers and the courts might afford him such treatment, does not, when considering the totality of the circumstances, create a prima facie case of subtle psychological coercion tending to compel an involuntary statement. It is well recognized in all jurisdictions that when a mul *287 tiple homicide occurs, psychological evaluations and mental treatment may be necessary, notwithstanding the fact that at the time of the commission of the act the defendant was criminally responsible for his deeds. The enormity of the crime, or crimes, does not obviate the necessity for such treatment and police officers, judges, and members of the general public, recognize the necessity of attempting to achieve this end. That the defendant did, in fact, consult with the psychologist, Dr. Russo, should conclusively give verity to this premise. Judge Brett, while acknowledging that he concurred in Vetter v. State, Okl.Cr., 506 P.2d 1400 , which held that: “The Court can find no Oklahoma case in which the results of a polygraph test have been admitted into evidence and the Court finds no reason for the results of such a test to have been admitted in this case” would give an exception to that rule to justify his desired conclusions. When the reliability of the polygraph examination has reached that degree of scientific development, I have no doubt that this Court as presently constituted, or as it may be constituted in the future, will hold the same admissible. We do not believe at this time it has attained that degree of scientific development which would render it admissible and we would reach the same conclusion had the examiner expressed a different view. The dissenter also attacks the admissibility of the fingernail scrapings and the analysis of the chemist as being inconclusive and having no probative value. The testimony of the chemist, like the testimony of the medical examiner, Dr. Fogel, and that of Dr. Russo, the psychologist, are all equally admissible and the weight and credibility to be given their testimony and the inferences to be drawn therefrom, are matters for the determination of the jury and not for the judges on review. It is the duty of both the trial and appellate courts, to interpret the law, rule on the admissibility or inadmissibility of evidence, and properly apply that law to the facts as determined by the jury, and it is not within the province of either the trial or appellate court to usurp the functions of the jury even when the evidence of the State and defense are in sharp conflict with each other. This forms the fundamental bulwark of American jurisprudence and although an appellate judge may place more credence in the testimony of one of the witnesses testifying at the trial, and give less credence to the testimony of another witness, such is not the function of the Court. Having heretofore concluded that the testimony of the analysis of the fingernail scrapings were admissible, then it was proper for the prosecuting attorney to argue the probative value of such evidence and the reasonable inferences to be drawn therefrom, and I do not believe that the closing argument of the District Attorney was improper. The photographs admitted in evidence of the victims were material, competent, and had a probative value, for it is often said that a single picture is worth a thousand words. The location of the bodies and the wounds inflicted, certainly were competent to establish that the cause of death of the victims were other than natural and tended to establish the commission of the crime of Murder. In the dissent, Judge Brett asserts that there is no evidence tending to corroborate the confession. On viewing the evidence in its entirety and drawing the inferences therefrom, it is abundantly clear to me that the corpus delicti was established, independent of the confession, and that it and the facts and circumstances adduced on trial corroborate the confession and I am of the opinion that defendant’s guilt was established beyond a reasonable doubt. As to Judge Brett’s view that the Motion for New Trial should have been granted, I believe' even the most cursory examination of the record and application of the law to such evidence, amply supports the trial *288 court’s ruling and Judge Bliss’ disposition of this matter. In conclusion, I can only add that although the case was a lengthy one, both counsel for the State and for defense, should be commended for the manner in which they conducted themselves, as indeed, did the trial judge. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9580976. Public record. Not legal advice.