Mar 24 - Oklahoma Bar Association

Transcription

Volume 78
◆
No. 10
◆
Mar. 24, 2007
Cour t Mater ial
754
The Oklahoma Bar Journal
Vol. 78 — No. 10 — 3/24/2007
OFFICERS & BOARD OF GOVERNORS
Stephen D. Beam, President, Weatherford
J. William Conger, President-Elect, Oklahoma City
Jack S. Dawson, Vice President, Oklahoma City
William R. Grimm, Immediate Past President, Tulsa
Julie E. Bates, Oklahoma City
Dietmar K. Caudle, Lawton
Cathy M. Christensen, Oklahoma City
Donna L. Dirickson, Weatherford
Robert S. Farris, Tulsa
Brian T. Hermanson, Ponca City
Michael W. Hogan, McAlester
R. Victor Kennemer III, Wewoka
Deborah A. Reheard, Eufaula
Robert B. Sartin, Tulsa
Alan Souter, Bristow
Peggy Stockwell, Norman
Christopher L. Camp, Tulsa, Chairperson,
OBA/Young Lawyers Division
EVENTS CALENDAR
MARCH
27
OBA Day at the Capitol; State Capitol, Oklahoma City
29
State Legal Referral Service Task Force Meeting; 3 p.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar
Center, Tulsa; Contact: Dietmar Caudle (580) 248-0202
OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: H. Terrell Monks (405) 733-8686
30
OBA Access to Justice Committee Meeting; 3 p.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Kade McClure (580) 248-4675
BAR CENTER STAFF
John Morris Williams, Executive Director;
Dan Murdock, General Counsel; Donita Bourns
Douglas, Director of Educational Programs;
Carol A. Manning, Director of Public Information;
Craig D. Combs, Director of Administration;
Gina L. Hendryx, Ethics Counsel; Jim Calloway,
Director of Management Assistance Program; Rick
Loomis, Director of Information Systems; Beverly S.
Petry, Administrator MCLE Commission; Jane
McConnell, Coordinator Law-related Education; Janis
Hubbard, First Assistant General Counsel; Loraine
Dillinder Farabow, Janna D. Hall, Mike Speegle,
Assistant General Counsel; Robert D. Hanks, Senior
Investigator; Sharon Orth, Ray Page and Dorothy
Walos, Investigators
Nina Anderson, Manni Arzola, Jenn Barrett,
Melissa Brown, Brenda Card, Sharon Dotson,
Johnny Marie Floyd, Matt Gayle, Susan Hall, Suzi
Hendrix, Misty Hill, Durrel Lattimore, Heidi
McComb, Jeanne Minson, Renee Montgomery,
Wanda Reece-Murray, Sandy Neal, Tim Priebe, Lori
Rasmussen, Tracy Sanders, Mark Schneidewent,
Dana Shelburne, Laura Willis & Roberta Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams
News & Layout Editor, Carol A. Manning
Editor, Melissa DeLacerda, Stillwater
Associate Editors: Steve Barnes, Poteau; Martha
Rupp Carter, Tulsa; Mark Curnutte, Vinita;
Luke Gaither, Henryetta; D. Renee Hildebrant,
Oklahoma City; John Munkacsy, Lawton; Julia
Rieman, Enid; James Stuart, Shawnee and
Judge Lori M. Walkley, Norman
NOTICE of change of address (which must be in
writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news
stories, articles and all mail items should be sent to
the Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152-3036.
Oklahoma Bar Association (405) 416-7000
Toll Free (800) 522-8065 FAX (405) 416-7001
Continuing Legal Education (405) 416-7006
Ethics Counsel (405) 416-7083
General Counsel (405) 416-7007
Law-related Education (405) 416-7005
Lawyers Helping Lawyers (800) 364-7886
Mgmt. Assistance Program (405) 416-7008
Mandatory CLE (405) 416-7009
OBJ & Public Information (405) 416-7004
Board of Bar Examiners (405) 416-7075
Oklahoma Bar Foundation (405) 416-7070
Vol. 78 — No. 10 — 3/24/2007
OBA Board of Governors Meeting; 9:30 a.m.; Oklahoma Bar
Center, Oklahoma City; Contact: John Morris Williams
(405) 416-7000
APRIL
3
OBA Communications Task Force Meeting; 3 p.m.; Oklahoma
Bar Center, Oklahoma City; Contact: Melissa DeLacerda
(405) 624-8383
4
OBA Alternative Dispute Resolution Section Meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact:
Larry Yadon (918) 595-6607 or Barry Davis (405) 607-8757
Oklahoma Hispanic Bar Network Meeting; 3 p.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Saul Olivarez (405) 227-9700
6
OBA Government and Administrative Law Practice Section
Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City;
Contact: Kevin Nelson (405) 620-0547
10
OBA Bar Center Facilities Committee Meeting; 9 a.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar
Center, Tulsa; Contact: Bill Conger (405) 521-5845
OBA Law-related Education Committee Meeting; 4 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact: Chip Clark
(405) 232-4271
For more events go to www.okbar.org/news/calendar.htm
The Oklahoma Bar Association’s official Web site:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2007 Oklahoma Bar Association.
The design of the scales and the “Oklahoma Bar Association” encircling the
scales are trademarks of the Oklahoma Bar Association. Legal articles carried
in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED FOUR TIMES A
MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL,
MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND
BIMONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR
ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA
73105. PERIODICALS POSTAGE PAID AT OKLAHOMA CITY, OK. POSTMASTER:
SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX
53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIPTIONS ARE $55 PER YEAR
EXCEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCIATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEMBER SUBSCRIPTIONS ARE
INCLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN
IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA
BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS.
755
“UNPOPULAR PRIVACY:
The Case for Government Mandates”
Anita L. Allen
Henry R. Silverman Professor of Law
and Professor of Philosophy
University of Pennsylvania Law School
Thursday, April 5, 2007
5:00 p.m.
OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW
Sarkeys Law Center
Homsey Family Moot Courtroom
Northwest 23rd Street and Kentucky Avenue
Free and Open to the Public
A
nita L. Allen, the Henry R. Silverman
Professor of Law and Professor of Philosophy
at the University of Pennsylvania Law School,
is a world-renowned scholar in a wide range
of areas including privacy law, legal philosophy, contemporary ethics and bioethics, race
relations and gender studies. A graduate of
Harvard Law School, her lecture, “Unpopular
Privacy: The Case for Government Mandates,”
will show that government has had two distinguishable roles in issuing privacy mandates.
One role has been to create and enforce rights
that promote the privacy citizens typically
want and believe they have a right to. The
other role is to promote privacy to which some
citizens may be indifferent or may reject. She
will give examples of “unpopular” private
mandates and explain why some are vital
and quite consistent with the ideal of liberal
democracy. Examples include professional
confidentiality rules, anti-nudity rules, solitary
confinement and quarantine rules and others.
For more information, phone (405) 208-5335 or e-mail [email protected].
(800) 230-3012 I (405) 208-5337 I www.okcu.edu/law
756
Vol. 78 — No. 10 — 3/24/2007
OKLAHOMA BAR ASSOCIATION
table of
contents
Mar. 24, 2007
• Vol. 78
• No. 10
page
755
758
761
789
831
853
856
EVENTS CALENDAR
INDEX TO COURT OPINIONS
SUPREME COURT OPINIONS
COURT OF CRIMINAL APPEALS OPINIONS
COURT OF CIVIL APPEALS OPINIONS
MANDATES
DISPOSITION OF CASES OTHER THAN BY PUBLICATION
Vol. 78 — No. 10 — 3/24/2007
757
Index To Opinions Of Supreme Court
2007 OK 2 CARMILITA ROBINSON and DON R. ROBINSON, Plaintiffs/Appellants, v.
OKLAHOMA NEPHROLOGY ASSOCIATES, INC., d/b/a OKLAHOMA NEPHROLOGY ASSOCIATES, Defendant, and INTEGRIS SOUTH OKLAHOMA CITY HOSPITAL
CORPORATION d/b/a INTEGRIS SOUTHWEST MEDICAL CENTER OF
OKLAHOMA; and INTEGRIS HEALTH, INC., d/b/a INTEGRIS HEALTH,
Defendants/Appellees. No. 100,081..................................................................................................761
IN THE MATTER OF THE REINSTATEMENT OF WILLIAM FRANCIS GARDNER, TO
MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF
ATTORNEYS. SCBD No. 5175 ...........................................................................................................761
2006 OK 80 In the Matter of the Adoption of L.D.S., a minor child. Joseph Staton and
Jennifer Staton, Petitioners/Appellees, v. Jason Shuler and Norma Jean Shuler,
Respondents/Appellants. No. 102,250 .............................................................................................762
2007 OK 12 OKLAHOMA ONCOLOGY & HEMATOLOGY P.C., an OKLAHOMA
PROFESSIONAL CORPORATION, d/b/a CANCER CARE ASSOCIATES,
Appellant, v. US ONCOLOGY, INC., a DELAWARE CORPORATION, and
AOR MANAGEMENT COMPANY OF OKLAHOMA, INC., a DELAWARE
CORPORATION, Appellees. No. 102,673; Consol. w/102,612 .....................................................765
2007 OK 13 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION,
Complainant, v. JOHNIE RAY O’NEAL, Respondent. SCBD No. 5164; OBAD-1683 ...............774
2007 OK 14 GINA CASIDA, individually, and natural mother and next of kin of Braydon
Casida, Plaintiff/Appellant, v. J. CLIFTON COFFEY, M.D. and J. COFFEY, M.D., P.C.,
FARMERS UNION HOSPITAL ASSOCIATION, and THE FOUNDATION BOARD
OF GREAT PLAINS REGIONAL MEDICAL CENTER IN ELK CITY, OKLAHOMA,
Defendants/Appellees. No. 102,960..................................................................................................777
2007 OK 15 MARGIE L. HOLMES, ADMINISTRATOR OF THE ESTATE OF TERESA
LEE ELAM, Petitioner, v. HONORABLE REBECCA BRETT NIGHTINGALE, District
Judge, Respondent. No. 103,762 ........................................................................................................778
Index To Opinions Of Court Of Criminal Appeals
2007 OK CR 6 CHARLES MILTON SMITH, SR., and BONNIE SMITH, Appellants, v.
STATE OF OKLAHOMA, Appellee. Case Nos. F-2005-785 and F-2005-786...............................789
2007 OK CR 7 ROBERT JACK LOOKINGBILL, Appellant, v. THE STATE OF
OKLAHOMA, Appellee. No. F-2005-1235 .......................................................................................790
2007 OK CR 8 CARL DON MYERS, Appellant, v. STATE OF OKLAHOMA, Appellee.
No. M-2006-42.......................................................................................................................................795
2007 OK CR 9 PHILLIP DEAN HANCOCK, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. D-2004-1097 .................................................................................................................797
2007 OK CR 10 ROBERT D. BRUMFIELD, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. F-2005-952 ....................................................................................................................819
758
Vol. 78 — No. 10 — 3/24/2007
Index To Opinions Of Court Of Civil Appeals
CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS ............................831
CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS ............................832
2006 OK CIV APP 150 RELIABLE REFERRING SERVICE, INC., Plaintiff/Appellee, v.
ASSESSMENT BOARD, OKLAHOMA EMPLOYMENT SECURITY COMMISSION,
Defendant/Appellant. No. 102,1868.................................................................................................833
2007 OK CIV APP 20 THE STATE OF OKLAHOMA ex rel. RICHARD L. DUGGER,
DISTRICT ATTORNEY FOR BECKHAM COUNTY, STATE OF OKLAHOMA, and
the DISTRICT II DRUG TASK FORCE, Plaintiffs/Appellees, v. TWELVE
THOUSAND DOLLARS ($12,000.00) CASH, Defendant, and RALPH
PASSALACQUA, Claimant/Appellant. No. 98,995......................................................................833
2007 OK CIV APP 21 WESTERN HEIGHTS INDEPENDENT SCHOOL DISTRICT NO.
I-41 OF OKLAHOMA COUNTY, Petitioner/Appellant, v. THE STATE OF
OKLAHOMA ex rel. OKLAHOMA STATE DEPARTMENT OF EDUCATION,
OKLAHOMA STATE BOARD OF EDUCATION, and SANDY GARRETT, STATE
SUPERINTENDENT OF PUBLIC INSTRUCTION FOR THE STATE OF
OKLAHOMA, Respondents/Appellees. No. 103,302....................................................................839
2007 OK CIV APP 22 IN THE MATTER OF K.N.L., A DEPRIVED CHILD. KEVIN N.
LATHAM,
Respondent/Appellant,
v.
STATE
OF
OKLAHOMA,
Petitioner/Appellee. No. 103,304 ......................................................................................................841
Vol. 78 — No. 10 — 3/24/2007
759
Tulsa Law Review Sixth Annual
Legal Scholarship Symposium
Monday & Tuesday • April 9 - 10, 2007
Wm. Stuart Price & Michael C. Turpen Courtroom
CARL M. LOEB UNIVERSITY PROFESSOR OF LAW
HARVARD LAW SCHOOL
SPONSORED BY
Speakers include LAURENCE TRIBE and:
AKHIL R. AMAR – Southmayd Professor of Law and Political Science, Yale Law School
DAVID J. BARRON – Professor of Law, Harvard Law School
MARTIN H. BELSKY – Professor of Law, University of Tulsa College of Law
ROBERT BUTKIN – Dean and Professor of Law, University of Tulsa College of Law
ERWIN CHEMERINSKY – Alston & Bird Professor of Law and Professor of Political Science, Duke University
School of Law
LYN ENTZEROTH – Associate Professor of Law, University of Tulsa College of Law
HEATHER K. GERKEN – Professor of Law, Yale Law School
PATRICK O. GUDRIDGE – Professor of Law, University of Miami School of Law
SANFORD LEVINSON – W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair, University of
Texas School of Law
FRANK I. MICHELMAN – Robert Walmsley University Professor, Harvard Law School
THE HONORABLE STEPHEN REINHARDT – Circuit Judge U.S. Court of Appeals for the Ninth Circuit
KATHLEEN M. SULLIVAN – Stanley Morrison Professor of Law, Stanford Law School
KENJI YOSHINO – Guido Calabresi Professor of Law, Yale Law School
SEMINAR FEES
CLE Credit: $150/person or $125/TU Alumni • Educators’ Discount: $75 • Students and Others: Free
To register, contact [email protected], or call (918) 631-2429. For more information, contact
[email protected], or call (918) 631-2471. Visit our website at www.law.tulsa.edu/symposium/.
760
Vol. 78 — No. 10 — 3/24/2007
Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2007 OK 2
CARMILITA ROBINSON and DON R.
ROBINSON, Plaintiffs/Appellants, v.
OKLAHOMA NEPHROLOGY ASSOCIATES,
INC., d/b/a OKLAHOMA NEPHROLOGY
ASSOCIATES, Defendant, and INTEGRIS
SOUTH OKLAHOMA CITY HOSPITAL
CORPORATION d/b/a INTEGRIS
SOUTHWEST MEDICAL CENTER OF
OKLAHOMA; and INTEGRIS HEALTH, INC.,
d/b/a INTEGRIS HEALTH,
Defendants/Appellees.
No. 100,081. March 12, 2007
ORDER
1) Rehearing should be denied.
2) Costs should be taxed pursuant to Rule
1.14, Supreme Court Rules, 12 O.S. 2001,
Ch. 15, App. 1, 12 O.S. 2001 §978 and Holleyman v. Holleyman, 2003 OK 48, 78 P.3d
921 [Supplemental opinion on rehearing.].
¶2 IT IS THEREFORE ORDERED, ADJUDGED
AND DECREED that rehearing is denied and
that costs will be taxed pursuant to Rule 1.14,
Supreme Court Rules, 12 O.S. 2001, Ch. 15, App.
1, 12 O.S. 2001 ¶978 and Holleyman v. Holleyman, 2003 OK 48, 78 p.3d 921 [Supplemental
opinion on rehearing].
¶3 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 12th DAY OF
MARCH, 2007.
/s/ James E. Edmondson
JAMES E. EDMONDSON,
VICE CHIEF JUSTICE
EDMONDSON, V.C.J., LAVENDER, OPALA,
WATT, COLBERT, J.J., and SIMMS, S.J., concur.
WINCHESTER, C.J., HARGRAVE, TAYLOR, J.J.
dissent.
Vol. 78 — No. 10 — 3/24/2007
SCBD No. 5175. March 5, 2007
ORDER
¶1 This matter is before the Court pursuant
to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S.2001, Ch. 1, App. 1-A (RGDP),
for consideration of William Francis Gardner’s
(Petitioner) Petition for Reinstatement to Oklahoma Bar Association (OBA) membership.
¶2 Upon consideration of the matter we find:
¶ In condideration of the defendants/
appellees’ petition for rehearing and supporting
brief filed on February 5, 2007, along with the
plaintiff/appellants’ motion to tax costs and the
response thereto, THE COURT DETERMINES:
KAUGER, J., recused.
IN THE MATTER OF THE
REINSTATEMENT OF WILLIAM FRANCIS
GARDNER, TO MEMBERSHIP IN THE
OKLAHOMA BAR ASSOCIATION AND
TO THE ROLL OF ATTORNEYS.
1. The Professional Responsibility Tribunal
(PRT) heard the matter on July 18, 2006
and has recommended the Court
approve the Petitioner’s Petition for
Reinstatement.
2. Petitioner was admitted to the OBA in
October, 1981 and was an OBA member
until July, 1990, when his OBA membership was suspended for non-payment of
dues and failure to comply with Mandatory Continuing Legal Education
(MCLE) requirements in the years 1989
and 1990. Petitioner was subsequently
stricken from the roll of attorneys for
non-payment of dues and non-compliance with MCLE by Orders issued in
September, 1991.
3. Petitioner has earned and reported the
required 12 hours of CLE, including one
hour of ethics for each year of delinquency and paid the OBA an amount
equaling all unpaid fees and late fees for
the years 1989 and 1990 for CLE.
4. Petitioner last paid his dues for calendar
year 1989. He has not paid the dues
owed for both 1990 and 1991 ($175.00
and late fees of $275.00 for each year for
a total of $900.00), nor has Petitioner
paid current annual dues in the amount
of $275 for active members of the OBA.
Thus, Petitioner owes a total of $1,175.00
761
in annual membership dues payment for
delinquent dues/late penalty charges
owed and current dues.
5. Petitioner has never been disciplined by
any Bar Association of which he is or has
been a member1 and in compliance with
Rule 11.5(a), RGDP, possesses good
moral character.
6. In compliance with Rule 11.5(b), RGDP,
Petitioner has not engaged in the unauthorized practice of law in Oklahoma
during the period of his suspension.
7. In compliance with Rule 11.5(c) Petitioner has demonstrated clear and convincing evidence that he possesses the competency and learning in the law required
for admission to practice in Oklahoma.2
8. In compliance with Rule 11.1(e) Petitioner has not filed a Petition for Reinstatement to the OBA during the one year
period immediately preceding this
application’s date.
9. The OBA has incurred costs in this matter in the amount of $539.80 and is entitled to reimbursement for the same pursuant to the terms of Rule 11.1(c), RGPD.
10. Petitioner’s Petition for Reinstatement
should be approved.
¶3 In that Petitioner has met his burden of
proof as to each of the requirements of Rule
11.5, RGDP, by clear and convincing evidence,
it is therefore ORDERED that he be readmitted
to the practice of law and that his name be
reinstated to the Roll of Attorneys licensed to
practice law in the State of Oklahoma.
¶4 It is also ORDERED that as a condition to
reinstatement, Petitioner shall pay to the OBA
within thirty (30) days from the date of this
Order’s filing with the Clerk of the Court the
following: (1). the costs of this proceeding in
the amount of $539.80; (2). The amount of
$900.00, representing Petitioner’s outstanding/delinquent annual dues and late penalty
charges for the years 1990-1991; (3). Current
annual membership dues in the amount of
$275.00.
DONE IN CONFERENCE BY ORDER OF
THE SUPREME COURT THIS 5th DAY OF
MARCH, 2007.
/s/ James R. Winchester
JAMES R. WINCHESTER,
CHIEF JUSTICE
762
WINCHESTER, C.J., EDMONDSON, V.C.J.,
LAVENDER,
HARGRAVE,
OPALA,
KAUGER, WATT, and COLBERT, JJ., concur.
TAYLOR, J., dissents.
1. Petitioner’s Wisconsin law license was suspended in 1985 for
non-payment of dues and for non-compliance with CLE requirements
in that state. Incidentally, this suspension was during the period of
time he was practicing law in Oklahoma. Although Petitioner’s Wisconsin law license was reinstated from this CLE suspension in 1989, he
was again suspended for CLE non-compliance in 1996. Petitioner was
reinstated in 1990 for his 1985 suspension for non-payment of bar
dues. The record includes a June 2, 2005 letter from the Supreme
Court of Wisconsin, Office of Lawyer Regulation, that sets forth the
history of Petitioner’s suspensions and reinstatements. Additionally,
this letter indicates that at the time that letter was written, Petitioner
was active and in good standing regarding his license to practice in
Wisconsin and he “ha[s] never been disciplined in the State of Wisconsin, nor are there any pending disciplinary proceedings . . ..” (Letter attachment to Respondent’s Exhibit #3). Additionally, the record
includes a Certificate of Good Standing from the Wisconsin Supreme
Court, dated May 27, 2005, which Petitioner filed as an attachment to
his Petition for Reinstatement.
2. At the reinstatement hearing on July 18, 2006, the PRT decided
to continue the matter for 90 days and entered an Order on July 20,
2006 requiring Petitioner to present additional evidence that he is competent in Oklahoma law as required by Rule 11.5(c) of the RGDP. Petitioner was required to attend CLE courses on Oklahoma law, specifically civil procedure and recent developments with ethics included by
November 7, 2006, and supplement the record accordingly. The parties thereafter jointly filed a Supplement to the Record on November
6, 2006, reflecting Petitioner’s payment of $200.00 (representing a late
fee of $50 plus a reinstatement fee of $100 for each year of delinquency) to file annual reports of compliance for 1989 and 1990 along with
evidence documenting Petitioner’s attendance of 24 hours of OBA
sponsored CLE. Petitioner had attended CLE seminars both in Tulsa
and online to earn 3 hours of ethics, recent developments in Oklahoma
law (on current civil appellate practice and procedure), Oklahoma real
property law, Oklahoma family practice law, as well as a seminar on
Oklahoma criminal defense. Upon the parties’ joint supplementation
to the record, neither party requested further hearing on the matter.
2006 OK 80
In the Matter of the Adoption of L.D.S., a
minor child. Joseph Staton and Jennifer
Staton, Petitioners/Appellees, v. Jason
Shuler and Norma Jean Shuler,
Respondents/Appellants.
No. 102,250. March 6, 2007
SUPPLEMENTAL OPINION ON
REHEARING
¶1 Rehearing in this matter is denied. Procedural irregularities in the trial court have
occurred during the time this matter was on
appeal, however, which require further direction from this Court. This supplemental opinion describes those irregularities and their
effect, if any, on the opinion previously issued
in this matter. See In re L.D.S., 2006 OK 80
(Oct. 24, 2006).
¶2 While an appeal was pending from the
determination that the child was eligible for
adoption without the consent of the natural
parents and the matter stood assigned to Division III of the Court of Civil Appeals, the trial
court entered a final decree of adoption. No
Vol. 78 — No. 10 — 3/24/2007
notice of this significant event was provided to
the Court of Civil Appeals or to this Court. The
court file in the adoption proceeding indicates
that counsel for the natural parents was present at the proceeding but there is no record that
any objection was raised. Twenty days after
the final decree had been entered, a divided
Court of Civil Appeals affirmed the trial
court’s determination that the child was available for adoption without the consent of the
natural parents based on willful nonsupport.
¶3 The natural parents timely brought a petition for certiorari review. A response was filed
on behalf of the minor child and a response
was filed by the adoptive parents who are the
natural father’s sister and brother-in-law. Not
one word in any of the certiorari filings gave
this Court any indication that a final decree of
adoption had been entered. Ultimately, this
Court reversed the trial court’s determination
and held that willful nonsupport had not been
demonstrated by clear and convincing
evidence.
¶4 The first mention by anyone to this Court
that the adoption had been finalized came in
the petition for rehearing filed on behalf of the
minor child. Even then, it was mentioned in
passing and no legal effect was ascribed to the
adoption decree. The petition for rehearing
filed by the adoptive parents made no mention
of the final decree and no response to the petitions for rehearing was filed by the natural
parents. This Court directed the parties to brief
the issue of the trial court’s jurisdiction to issue
a final decree of adoption and directed the trial
judge to show cause why the final decree
should not be vacated based on the appeal of
the trial court’s decision on the “Motion to
Adopt without the Consent of Natural Parents.” The briefs and show cause response
were filed and a hearing was held before a
Supreme Court Referee. This Court holds that
the trial court lacked the authority to enter a
final decree of adoption while the issue of the
child’s eligibility for adoption was on appeal.
Thus, the adoption decree is void.
¶5 “When a petition in error is timely filed,
the Supreme Court shall have jurisdiction of
the entire action that is the subject of the
appeal.” Okla. Stat. tit. 12, § 990.1 (2001). Jurisdiction remains in the trial court only for the
limited purposes enumerated in Rule 1.37 of
the Oklahoma Supreme Court Rules, Okla.
Stat. tit. 12, app. 1 (2001). Those purposes
include “grant[ing] or modify[ing] orders in
regard to custody, guardianship, support, and
Vol. 78 — No. 10 — 3/24/2007
maintenance” and “determin[ing] any issue
whose resolution pending appeal is explicitly
authorized by law.” Id. at Rule 1.37(a)(2)&(9).
The trial court asserts that specific authorization to act was found in section 7505-2.1(J) of
title 10 which provides:
The pendency of an appeal shall not suspend the order of the district court regarding a minor, nor shall it remove the minor
from the custody of that court or of the person, institution, or agency to whose care
such minor has been committed, unless the
Supreme Court shall so order.
With this provision as the perceived authority
to act, the trial court reasoned that a final
decree of adoption could be entered because
the natural parents had not sought to stay the
adoption proceeding. That court asserts that
“[w]ith no such stay order before the trial court
and no objection having been made, either
orally or in writing, and due notice having
been given to the biological parents, the trial
court believed it had jurisdiction.”
¶6 The trial court believed that adoption is a
modification of custody over which jurisdiction was retained while the issue of the need
for the natural parent’s consent to adoption
was on appeal. That belief was mistaken.
Although a final decree of adoption does
change custody, it is much more than a custody
determination. It supplants the rights of the
natural parents with those of the adoptive parents to effect a permanent change in legal custody which permanently deprives the natural
parents of their parental rights.
¶7 Under Supreme Court Rule 1.37(a)(2), an
appeal does not divest the trial court of the
authority “to grant or modify orders in regard
to custody, guardianship, support, and maintenance.” However, the authority to issue a final
decree of adoption while the appeal was pending was not within the trial court’s retained
jurisdiction. “It is well settled in Oklahoma,
that while an appeal is pending in the Supreme
Court, the trial court is without jurisdiction to
make an order materially affecting the rights of
the parties to that appeal.” In re Chad S., 1978
OK 94, ¶ 6, 580 P.2d 983, 984. Thus, “[a]bsent a
compliance with § 1031.1 [by which a court
may correct, open, modify or vacate its own
judgment, decree, or appealable order within
thirty days] the trial court loses its jurisdiction
to make any order that pertains to the same
issues then on appeal.” Id. at ¶ 7, 580 P.2d at
985. Therefore, the trial court had no authority
763
to issue a final decree of adoption until the
issue of the child’s eligibility for adoption had
been finally resolved on appeal.
¶8 The adoptive parents and counsel for the
child assert that, notwithstanding a void adoption decree, this matter is controlled by section
7505-7.2 of title 10 which provides:
A. Except as otherwise provided by paragraph 3 of subsection B of Section 7503-2.7
of this title:
1. When an interlocutory or final decree of
adoption has been rendered, a decree terminating parental rights cannot be challenged on any ground, either by a direct or
a collateral attack, more than three (3)
months after its rendition. The minority of
the natural parent shall not operate to prevent this time limit from running; and
2. No adoption may be challenged on any
ground either by direct or collateral attack
more than three (3) months after the entry
of the final adoption decree regardless of
whether the decree is void or voidable, and
the minority or incompetence of the natural parent shall not operate to prevent this
time limit from running.
B. In any challenge on any ground either
by a direct or collateral attack, the court
shall not enter a decision which is contrary
to the best interests of the adopted minor.
It is maintained that because there was no challenge to the final decree of adoption by appeal
or otherwise within three months, the decree is
unassailable and this Court’s determination
that the child was not eligible for adoption
without parental consent is of no effect and
moot. The cited provision, however, does not
apply to this matter.
¶9 Under the view of section 7505-7.2 asserted, a decision regarding a child’s eligibility for
adoption without parental consent could be
rendered incapable of review. A trial court
could enter a final decree of adoption while the
eligibility issue is on appeal and so long as the
appellate process, potentially including certiorari review, took an additional three months to
conclude, the appellate decision would
become irrelevant because section 7505-7.2
would make the adoption unassailable.
¶10 The Adoption Code provides that “[a]n
appeal from an order determining a child eligible for adoption which does not terminate
parental rights may be taken in the same man764
ner provided for appeals from the court as provided in this subsection.” Okla. Stat. tit. 10,
§7505-4.1(I)(b) (2001). The Legislature would
not have provided for a right of appeal only to
have the issue irrevocably predetermined by
the trial court through the operation of section
7505-7.2. That provision was not intended to
apply where to do so would subvert appellate
review of a decision that a child is eligible for
adoption without the consent of the natural
parents.
¶11 In this matter, no one brought a challenge to the decree of adoption. The jurisdictional issue was raised sua sponte by this
Court. Thus, the statute is inapplicable. Even if
the statute applied, it cannot operate to
deprive the natural parents of due process of
law by negating this Court’s determination
that their child was not eligible for adoption.
As a statute of limitation, section 7505-7.2 “is
subject to the constitutional limitations of the
United States and Oklahoma Constitutions
and must not be interpreted so as to bar proceedings beyond the [limitation] period where
the question of due process of law is timely
presented even though more than [the time
period] has expired after the adoption decree
was entered.” In re Lori Gay W., 1978 OK 140,
¶ 14, 589 P.2d 217, 220.
¶12 “[T]he relationship of parents to their
children [is] a fundamental constitutionally
protected right.” In re Chad S., 1978 OK 40,
¶12, 580 P.2d at 985 (citing Stanley v. Illinois,
405 U.S. 645 (1972)). “The fundamental liberty
interest of natural parents in the care, custody,
and management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody
of their child to the State.” Santosky v. Kramer,
455 U.S. 745, 753 (1982). The determination
that a child is eligible for adoption without
parental consent does not merely infringe that
fundamental liberty interest, it is a significant
step in destroying it. For this reason, the result
achieved in an adoption proceeding is not the
only consideration even if the result is perceived to further the best interests of the child.
Parents must be provided the opportunity to
fully and finally litigate the issue of their
child’s eligibility for adoption, including an
appeal, before an adoption can be finalized
and the child is permanently removed from
the family.
¶13 The interests of all parties to an adoption
are furthered by speedy and efficient proceedings. “But the Constitution recognizes higher
Vol. 78 — No. 10 — 3/24/2007
values than speed and efficiency.” Stanley, 455
U.S. at 656. Until the issue of a child’s eligibility for adoption has been finally determined,
the child and the natural parents “share a vital
interest in preventing erroneous termination of
their natural relationship.” Santosky, 455 U.S.
at 760. Thus, the best interests of the child are
not furthered by judicial shortcuts, intentional
or unintentional, which reach an expeditious
result but fail to recognize the fundamental
nature of the right of parents to the care, custody, and management of their child. In fact,
the best interests of the child can be served in
no legitimate manner except in obedience to
the policies and procedures mandated by law.
¶14 No one’s interests have been served ultimately by the manner in which this matter has
been litigated and adjudicated. As the opinion
explains, the child was declared to be eligible
for adoption despite the fact that willful nonsupport had not been demonstrated by the
requisite clear and convincing evidence. But to
compound that error by entering a final decree
of adoption while the erroneous decision was
on appeal is astonishing. Just as disturbing is
the fact that counsel for the natural parents
took no action to forestall the adoption
through an original proceeding in this Court.
The failure of all parties to mention the final
decree of adoption in the certiorari filings
remains unexplained and it cannot be excused.
¶15 The final decree of adoption granted on
October 21, 2005, is null and void and it is hereby vacated. Also vacated are any administrative actions taken by the adoptive parents or
the court to finalize the adoption. Because the
final decree of adoption entered in this matter
has no legal effect, the parental rights of the
natural parents remain intact by virtue of this
Court’s opinion of October 24, 2006. On
remand, the trial court is directed to return the
parties to the legal status they held before the
erroneous declaration that the child was available for adoption without parental consent.
Further proceedings must comply with the
Oklahoma Adoption Code.
¶16 The lesson of this matter is that the interests of the child and ultimately all concerned in
matters regarding parental rights can be adequately served only through scrupulous
adherence to the statutory scheme found in the
Adoption Code. This Court expects that the
unprecedented errors committed by the trial
court and by counsel in this matter will not be
repeated.
Vol. 78 — No. 10 — 3/24/2007
CONCUR: Winchester, C.J., Edmondson,
V.C.J., Hargrave, Opala, Kauger, Watt, Colbert,
JJ.
CONCUR IN PART DISSENT IN PART:
Lavender, Taylor, JJ.
2007 OK 12
OKLAHOMA ONCOLOGY &
HEMATOLOGY P.C., an OKLAHOMA
PROFESSIONAL CORPORATION, d/b/a
CANCER CARE ASSOCIATES, Appellant,
v. US ONCOLOGY, INC., a DELAWARE
CORPORATION, and AOR
MANAGEMENT COMPANY OF
OKLAHOMA, INC., a DELAWARE
CORPORATION, Appellees.
No. 102,673; Consol. w/102,612.
March 15, 2007
APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY,
THE HONORABLE DAVID L. PETERSON,
PRESIDING
¶0 Oklahoma Oncology & Hematology, P.C.,
d/b/a Cancer Care Associates filed suit
against its business manager, AOR Management Company of Oklahoma, Inc., and the
business manager’s parent corporation, US
Oncology, Inc. The suit sought declaratory
judgment and damages for multiple contract
and tort claims arising out of the management
of plaintiff’s medical oncology business. The
business manager had a pending arbitration
complaint. The district court stayed the arbitration. The defendants moved to lift the stay
and compel arbitration. Plaintiff opposed arbitration, asserting that there was no valid
enforceable arbitration agreement and that the
costs of arbitration are so exorbitant as to be
unconscionable. Plaintiff requested the district
court to conduct an evidentiary hearing before
ruling on the motion to compel arbitration.
The district court referred all of plaintiff’s
claims to arbitration without conducting an
evidentiary hearing. Plaintiff appealed and
filed an original action in the event the order
compelling arbitration is determined to be
non-appealable. We previously determined the
pre-judgment order is a final appealable order.
We retained the appeal, consolidated the original action with the appeal, and stayed the arbitration proceeding during the pendency of this
appeal.
ORDER COMPELLING ARBITRATION
REVERSED AND CAUSE REMANDED
765
WITH INSTRUCTIONS; ORIGINAL
JURISDICTION DENIED.
Lana Jeanne Tyree, Cartwright & Tyree, Oklahoma City, Oklahoma, and John H. Tucker,
Rhodes, Hieronymus, Jones, Tucker & Gable,
PLLC, Tulsa, Oklahoma, for appellant.
James M. Sturdivant and Timothy A. Carnery,
Gable & Gotwals, Tulsa, Oklahoma, for
appellees.
TAYLOR, J.
¶1 The basic question in this appeal and the
consolidated original action is whether the district court erred in sending all claims in this
suit to arbitration. We find the district court
erred in compelling arbitration and reverse the
arbitration order. We remand this case to the
district court with instructions.
I. The Proceedings Below
¶2 The following are basic facts gleaned
from the district court filings and the arguments in this Court.1 Plaintiff/appellant, Oklahoma Oncology & Hematology P.C., d/b/a
Cancer Care Associates (CCA), is an Oklahoma
professional corporation of Oklahomalicensed physicians who engage in the practice
of medical oncology, hematology, and radiation oncology throughout the state of Oklahoma. CCA has more than sixty full-time, parttime, and contract physicians, and it has offices
in Tulsa, Oklahoma City, Norman, Bartlesville,
McAlester, Muskogee, Pryor, Enid, Vinita, and
Stillwater.
¶3 Defendant/appellee AOR Management
Company of Oklahoma, Inc. (AOR-OK) is a
Delaware corporation incorporated in 1995 to
provide business management services in
Oklahoma to CCA. AOR-OK was a whollyowned subsidiary of American Oncology
Resources, Inc. (AOR) until it became a wholly-owned subsidiary of defendant/appellee
US Oncology, Inc. (USON) in 1999.2 Since its
inception, AOR-OK has maintained its
corporate office in the offices of CCA in Tulsa,
Oklahoma.
¶4 This controversy has its origin in a business transaction that occurred in 1995, whereby AOR-OK became the business manager for
the oncology medical practices of the CCA
physicians. The transactional documents executed in March, 1995, included the Management Services Agreement (MSA) between
CCA and Oncology and Hematology Management Partnership, a Texas General Partnership
766
(the Texas partnership) and a Purchase Agreement executed by AOR, AOR-OK, CCA, Oklahoma Oncology & Hematology P.C., and more
than fifteen physicians.
¶5 The MSA is the central contract in this
controversy. The MSA was executed by only
one person, Alan M. Keller, M.D., a CCA
physician. Dr. Keller executed the agreement
both on behalf of the Texas general partnership
and on behalf of CCA.3 Even though it is a contract between CCA and the Texas partnership,
the MSA provided for AOR to succeed to all
the rights and obligations of the Texas partnership thereunder, it directed AOR to assign its
rights and obligations under the MSA to AOROK, and it designated AOR-OK as the business
manager for CCA.4
¶6 The MSA prescribed the duties and obligations of CCA and AOR-OK for the business
management of the oncology medical practices
of the CCA physicians. The MSA has a fortyyear term with automatic renewal every five
years thereafter. The MSA fixed AOR-OK’s
business management fees for the first five
years at a “monthly fee” in the amount equal
to the “fixed amount” plus seven percent of
the adjusted gross revenue. The “fixed
amount” for the first sixty months ranged from
$325,890 to $359,013 under the schedule in the
MSA. However, the “fixed amount” was
increased by several amendments to the MSA.
The first amendment was in January of 1997
and the last was in October of 1999. Each
amendment was in writing and executed on
behalf of AOR-OK and CCA. After the first five
years, the MSA provided for a “monthly fee”
equal to 24.7% of the adjusted gross revenue.5
¶7 The working relationship between CCA
and AOR-OK during the first five years apparently disintegrated after USON became the
parent corporation of AOR-OK. According to
CCA, USON has taken control of CCA’s
administrative and financial business, its
money and accounts, and its books and
records. On January 26, 2005, CCA notified
AOR-OK that it considered the MSA to be illegal, against public policy, and void ab initio
under Oklahoma law. Two days later, on January 28, 2005, AOR-OK filed an arbitration complaint asking that the business management
fee provisions in the MSA be reformed.
¶8 In the arbitration complaint, AOR-OK
alleged that 1) macro-economic changes in the
cancer care industry during the past several
years resulted in a substantially lower business
Vol. 78 — No. 10 — 3/24/2007
management fee for AOR-OK, 2) CCA and
AOR-OK have been unable to agree to any
changes in the business management fee since
1999, and 3) AOR-OK resigned itself to fulfilling the MSA for substantially less profit than
had been anticipated. It further alleged that the
change in reimbursement rates in the Medicaid
Modernization Act of 2003 directly impacts the
amount of the business management fee in the
MSA.
¶12 CCA also sought an emergency stay of
AOR-OK’s arbitration proceeding until the
district court decides whether the MSA is contrary to Oklahoma law and public policy and
void ab initio. The district court stayed the
arbitration.
¶9 The arbitration complaint referred to section 7.2(d) of the MSA as authorizing arbitration for the purpose of rewriting the business
management fee provisions in the MSA. Section 7.2(d) provides for the parties to negotiate
in good faith concerning a new service
arrangement or a new basis for compensation
as may be necessary due to change in
Medicare/Medicaid law, state law or change in
any third party reimbursement system; and if
the parties cannot agree to a new service
arrangement or basis for compensation, it provides for the matter to be sent to binding arbitration.
¶13 Neither AOR-OK nor USON answered
the district court petition. They filed a motion
to lift the stay and to compel arbitration. The
motion urged arbitration under section 8.6 of
the MSA which provides for any controversy,
dispute, or disagreement arising out of or
relating to the MSA to be submitted to binding
arbitration in accordance with Article XI of the
Purchase Agreement. Article XI of the Purchase Agreement calls for mediation under the
Commercial Mediation Rules of the American
Arbitration Association and for binding arbitration under the Commercial Arbitration
Rules of the American Arbitration Association.
¶10 The relief sought in the arbitration complaint is “a judgment that would reform the
terms of the MSA such that AOR Management
[AOR-OK] would be compensated at a level
that approximates as closely as possible its economic position that it was in prior to changes
caused by the MMA [Medicaid Modernization
Act].” The arbitration complaint also seeks
“costs and expenses, including reasonable
attorneys’ fees, for prosecution of this proceeding, as well as any further relief to which it
justly may be entitled.”
¶14 CCA responded that arbitration proceedings under the Commercial Arbitration
Rules of the American Arbitration Association
are cost prohibitive. CCA requested an evidentiary hearing on its allegations that 1) there is
no valid and enforceable contract between the
parties, 2) the costs of arbitration are so excessive as to be unconscionable, and 3) AOR-OK’s
and USON’s management of CCA’s business
under the MSA is illegal.
¶11 CCA did not answer the arbitration complaint. Instead, it filed suit in the Tulsa County
District Court on February 14, 2005. The
amended petition asserts that the MSA is contrary to established public policy in that it
allows AOR-OK to engage in the unlicensed
and unauthorized practice of medicine, to split
patient revenues, and to exert dominion and
control over CCA’s medical practice and financial affairs. It further asserts that USON is
treating CCA as if it is a wholly-owned subsidiary of USON by exercising dominion and
control over CCA’s entire business. The
amended petition asks the district court to
declare that the MSA was void ab initio and
unenforceable and that there is no valid contract between the parties. It also sought a stay
of arbitration and an award of compensatory
and punitive damages for breach of contract,
fraud and deceit, conversion, and misapproVol. 78 — No. 10 — 3/24/2007
priation and embezzlement, together with
interest, costs, and attorney fees against both
AOR-OK and USON.
¶15 The district court received briefs on the
enforceability of the arbitration provisions and
heard argument of counsel but did not conduct
an evidentiary hearing. The district court ruled
in favor of AOR-OK and USON on their
motion to compel arbitration, dissolved the
stay of arbitration, and referred all of CCA’s
claims to arbitration.
¶16 CCA timely appealed the order compelling arbitration and also filed an original
action in the event the order compelling arbitration should be declared a non-appealable
order. The amended application to assume
original jurisdiction asked for relief via a writ
of mandamus similar to the relief sought in
this appeal.6 It also asserted that this controversy involves matters of state-wide concern
and asked this Court to exercise its original
jurisdiction to decide if our state law and public policy may be circumvented by an arbitration clause and the federal arbitration law.
767
II. The Appeal
¶17 In the pre-decisional stage of this appeal,
we determined that the pre-judgment order
compelling arbitration and staying further
proceedings in the district court is a final
appealable order, citing 12 O.S.2001, §953, and
Gilliland v. Chronic Pain Associates, Inc., 1995
OK 94, 904 P.2d 73. After Gilliland, the United
States Supreme Court construed the Federal
Arbitration Act (FAA)7 as prohibiting an
appeal from an order compelling arbitration
and staying the federal district court proceeding on remaining claims. Green Tree Financial
Corp.-Alabama v. Randolph, 531 U.S. 79, 86-87,
121 S.Ct. 513, 519-520, 148 L.Ed.2d 373 (2000).
We have considered sua sponte8 whether
Gilliland is consistent with Green Tree.9 Each
opinion tested the respective pre-judgment
arbitration-related order under the established
meaning of “final order.” The “final order”
analysis under the federal arbitration statutes
in Green Tree10 is analogous to the “final order”
analysis under Oklahoma’s arbitration statutes
in Gilliland.11 We stand on our pre-decisional
ruling in this case. The order sending “all
claims raised by Plaintiff” to arbitration
reached the whole controversy and left nothing pending before the district court.12 Whether
analyzed under the FAA or Oklahoma’s Uniform Arbitration Act (OUAA),13 the pre-judgment order compelling all claims to arbitration
and staying further district court proceedings
in this case is a final appealable order. Upon
CCA’s motion, we retained the appeal.
III. The Issues on Appeal
¶18 The district court entered a general order
in favor of AOR-OK and USON, sending all of
CCA’s claims to arbitration. The district court
did not conduct the evidentiary hearing
requested by CCA before compelling arbitration. The district court did not enter any specific findings or conclusions, and its general
order compelling arbitration did not otherwise
directly address many of the questions raised
in the parties’ arguments. However, a finding
that CCA agreed that this controversy should
be resolved by binding arbitration is embraced
in the general order in favor of AOR-OK and
USON.14 We must affirm the general order
compelling arbitration unless we find that the
district court erred in 1) finding the existence
of a valid enforceable arbitration agreement
between CCA and AOR-OK and USON or 2)
sending all of CCA’s claims to arbitration without conducting an evidentiary hearing on the
existence of a valid and enforceable arbitration
768
agreement and the expense of arbitration
under the Commercial Arbitration Rules of the
American Arbitration Association before
referring all of CCA’s claims to arbitration.
IV. The Standard of Review
¶19 The question as to the existence of valid
enforceable agreements to arbitrate all of
CCA’s claims in this case against AOR-OK and
USON is a question of law to be reviewed by a
de novo standard, Rogers v. Dell Computer Corp.,
2005 OK 51, ¶18, 138 P.3d 826, 831, without
deference to the lower court. Gladstone v.
Bartlesville Indep. Sch. Dist. No. 30, 2003 OK 30,
¶5, 66 P.3d 442, 445. The question as to whether
the district court, before referring all claims to
arbitration, should have conducted an evidentiary hearing relating to the existence of a valid
enforceable arbitration agreement and to the
expense of arbitration under the Commercial
Arbitration Rules of the American Arbitration
Association is a procedural question left to the
discretion of the district court, Rogers at ¶17,
138 P.3d at 830-831, and the district court’s ruling thereon will not be disturbed on appeal in
the absence of clear abuse. Eskridge v. Ladd,
1991 OK 3, ¶12, 811 P.2d 587, 590.
V. Federal Arbitration Law
¶20 Both sides of this controversy rely on
federal court jurisprudence and both argue
that the other one’s position is inconsistent
with federal arbitration law. Whether a contract affects interstate commerce under the
FAA often involves questions of fact and law.
See Citizens Bank v. Alafabco, Inc., 539 U.S. 52,
123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). Here, the
district court did not find the evidence demonstrates that the business management of CCA
involves interstate commerce nor did it conclude that the business management agreement falls within the FAA. Even so, we review
the arbitration provisions in light of applicable
principles of arbitration law developed under
the FAA.
¶21 The FAA embodies a liberal policy favoring enforcement of arbitration agreements.
Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74
L.Ed.2d 765 (1983). It requires state and federal courts to honor arbitration agreements duly
entered into by the parties and to order the
parties to arbitrate their disputes when they
have agreed to do so. Id., 460 U.S. at 25, n. 32,
103 S.Ct. at 942. It ensures “judicial enforcement of privately made agreements to arbitrate.” Dean Witter Reynolds, Inc. v. Byrd, 470
Vol. 78 — No. 10 — 3/24/2007
U.S. 213, 219, 105 S.Ct. 1238, 1241, 84 L.Ed.2d
158 (1985).
¶22 Although the FAA favors arbitration
when it is the parties’ contractual choice of a
remedial forum, id., 470 U.S. at 220, 105 S.Ct. at
1242, the courts will not impose arbitration
upon parties where they have not agreed to do
so. Id., 470 U.S. at 219, 105 at S.Ct. at 1242. The
courts will enforce arbitration agreements
according to the terms of the parties’ contract,
as “[a]rbitration is a matter of consent, not
coercion.” Volt Info. Sciences, Inc. v. Bd. Of
Trustees of Leland Standford Junior Univ., 489
U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488
(1989). To assure that the parties have consented to arbitration, the courts will decide
whether there is a valid enforceable arbitration
agreement, whether the parties are bound by
the arbitration agreement, and whether the
parties agreed to submit a particular dispute to
arbitration. See First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d
985 (1995). The courts will not require a party
to submit a controversy to arbitration where it
has not been so agreed. Howsam v. Dean Witter
Reynolds, Inc., 537 U.S. 79, 83, 123 S.Ct. 588, 591,
154 L.Ed.2d 491 (2002).
VI. The Parties to the Arbitration Agreement
¶23 Under the above federal arbitration law,
a court must send a controversy to arbitration
when a party brings forth a valid enforceable
agreement to arbitrate the controversy. State
law is similar. 12 O.S.Supp.2005, §1858(A).
Here, both AOR-OK and USON moved for
arbitration under the MSA. CCA alleged that
AOR-OK and USON are two separate and distinct Delaware corporations, one with its
offices in Tulsa, Oklahoma, the other with its
offices in Houston, Texas, and one registered to
do business in Oklahoma and the other not so
registered. Neither AOR-OK nor USON dispute these allegations. AOR-OK and USON
argued that USON could arbitrate the dispute
with CCA because of its operating subsidiary,
AOR-OK,15 while CCA argued that USON is
an interloper with no legal authority or
contractual right to manage CCA’s business.16
¶24 Having perused the MSA, it appears,
beyond argument, to be a contract between
CCA and AOR-OK by assignment. USON has
not alleged that it is a party to the MSA, and
there is no evidence in the appellate record
tending to prove that fact. Further, USON does
not dispute that it is a separate corporate entity distinct from AOR-OK. But, AOR-OK and
Vol. 78 — No. 10 — 3/24/2007
USON, at least implicitly, argue that they act as
one legal entity.17 This argument suggests that
the courts ignore their separate and distinct
corporate identities which we will not do on
this record.18
¶25 The issue as to the existence of an arbitration agreement presents a gateway question
about whether the parties are bound by a
given arbitration clause and raises a “question
of arbitrability” for a court to decide. See 12
O.S.Supp.2005, §1857; Howsam, 537 U.S. at 84,
123 S.Ct. at 592. There is nothing in this appellate record indicating USON is a party to the
MSA, and it goes without saying that a
stranger to a contract neither enjoys the contract benefits nor carries the contract obligations. However, USON will have an opportunity to produce any evidence it may have
proving it is bound by the MSA in further proceedings in the district court on remand.
VII. The Arbitration Agreement
¶26 AOR-OK and USON contend that CCA’s
agreement to arbitrate the instant controversy
is set out in two provisions in the MSA and one
provision in the Purchase Agreement. Those
provisions are 1) section 7.2 (d), which requires
binding arbitration to change the terms of the
contract, 2) section 8.6, which requires binding
arbitration to settle controversies, disputes and
disagreements arising out of the MSA, and 3)
section 11.01 of the Purchase Agreement,
which requires mediation and binding arbitration to settle controversies, disputes and disagreements arising out of the Purchase Agreement. The provisions of arbitration agreements
will be examined under general principles of
state contract law. Kaplan, 514 U.S. at 944, 115
S.Ct. at 1924.
¶27 The following elementary rules of contract law are applicable here. The courts will
read the provisions of a contract in their entirety, Mortgage Cleaning Corp. v. Baughman Lumber
Co., 1967 OK 232, ¶11, 435 P.2d 135, 138, to give
effect to the intention of the parties as ascertained from the four corners of the contract,
and where the language is ambiguous, it will
be interpreted in a fair and reasonable sense.
Id., at ¶13, 435 P.2d at 139; 15 O.S.2001, §§155
and 157.19 The courts will read the contract language in its plain and ordinary meaning unless
a technical meaning is conveyed. Pitco Production Co. v. Chaparral Energy, Inc., 2003 OK 5,
¶14, 63 P.3d 541, 545-546. The courts will
decide, as a matter of law, whether a contract
provision is ambiguous and interpret the con-
769
tract provision as a matter of law, id., at ¶12, 63
P.3d at 545, where the ambiguity can be cleared
by reference to other provisions or where the
ambiguity arises from the contract language
and not from extrinsic facts. Paclawski v. Bristol
Laboratories, Inc., 1967 OK 21, ¶24, 425 P.2d 452,
456.
¶28 Guided by these rules, we review the
arbitration provisions. Section 7.2(d) of the
MSA requires the parties to agree to a new
service arrangement or a new basis for compensation for the services and thereby amend
those provisions in the MSA whenever specific
external forces affect the manner in the which
the management service will be performed or
compensated. If the parties cannot agree on the
changes in the contract, the plain meaning of
the words in section 7.2(d) is that an arbitrator
will arbitrarily rewrite those provisions in the
contract.20 This section does not deal with controversies arising out of the contract to which
the parties have agreed. It does not deal with
disputes as to the meaning of the contract
terms nor does it deal with the application or
performance of the contract to which the parties have agreed. This arbitration provision
does not concern “a controversy arising out of
such contract or transaction” under the FAA or
the OUAA.21 It concerns the parties’ failure to
mutually agree to amend the MSA to provide
new terms for the management services or
management compensation.
¶29 Some two years ago when the relationship with CCA, AOR-OK and USON was
unworkable, CCA gave notice to AOR-OK that
the MSA was void. In response, AOR-OK filed
an arbitration complaint under section 7.2(d)
asking that an arbitrator alter the terms of the
MSA because the economy and Medicare/
Medicaid reimbursement have changed.
Although the arbitration complaint requested
that the MSA be reformed, AOR-OK did
not seek the contract remedy of reformation.22
AOR-OK sought a rewriting of the
compensation provisions in the MSA.
¶30 The FAA reversed the longstanding judicial hostility to arbitration agreements and
placed them upon the same footing as other
contract provisions. Prima Paint Corp. v. Flood &
Conklin Mfg. Co., 388 U.S. 395, 404-405, n.12-13,
87 S.Ct. 1801, 1806-1807, 18 L.Ed.2d 1270
(1967); Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-226, 107 S.Ct. 2332, 2337,
96 L.Ed.2d 185 (1987). Both the FAA and the
OUAA require the courts to honor private parties’ agreements to settle their “controversies”
770
in the arbitral forum. The FAA and the OUAA
recognize arbitration is the remedial forum
agreed to by the parties as a substitute for suit
in the courts. See Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20, 26, 11 S.Ct. 1647, 1652,
114 L.Ed.2d 26 (1991). The courts will not
rewrite a contract for the benefit of one party,
Dismuke v. Cseh, 1992 OK 50, ¶9, 830 P.2d 188,
190, and neither will the courts compel one
party to submit to a substitute forum to rewrite
the contract terms for the benefit of another
party.23 Arbitration is not a forum to rewrite a
contract that has become less favorable to one
party under the economy of the day.24 We conclude, as a matter of law, that the failure of the
parties to reach an agreement to amend their
contract does not constitute “a controversy
arising out the contract or transaction” under
the FAA or the OUAA, and the arbitration provision in section 7.2(d) of the MSA, which
comes into play when the parties cannot agree
to amend the MSA, is not an arbitration agreement enforceable under the FAA or the OUAA.
¶31 We turn now to section 8.6 of the MSA
which requires binding arbitration of controversies, disputes and disagreements arising
out of the MSA.25 As we have already recognized, CCA and AOR-OK by assignment are
parties to the MSA. Section 8.6, on its face,
expresses the parties’ agreement to submit
controversies arising out of the MSA or the
breach of the MSA to binding arbitration.
However, all of CCA’s claims may not arise out
of the MSA or a breach of the MSA.
¶32 CCA’s claims against USON relate
directly to USON’s conduct, its alleged wrongful non-contractual handling of CCA’s financial affairs, and relate only indirectly to the
MSA.26 CCA’s claim against AOR-OK for
alleged complicity in USON’s alleged wrongdoing also relates directly to USON’s conduct,
while CCA’s claim for declaratory judgment
that the MSA is contrary to public policy and
CCA’s claim of fraud in the inducement obviously relate directly to the MSA.
¶33 Even though the plain meaning of the
terms of section 8.6 provides for arbitration of
disputes relating to the MSA or a breach of the
MSA, AOR-OK may not be entitled to bring all
of CCA’s claims under section 8.6. This is so
because section 8.8 contemplates that either
party may file a legal action to enforce or interpret the MSA.27 In this case, CCA seeks judicial
interpretation of the MSA. Like any other contract provision, an arbitration provision will be
read together with other provisions of the con-
Vol. 78 — No. 10 — 3/24/2007
tract so as to give effect to the intention of the
parties ascertained from the four corners of the
contract. By including both these remedial provisions, it is clear that the parties did not
intend that arbitration would be the exclusive
remedy. The arbitration provision in section 8.6
does not preclude CCA from seeking declaratory judgment to interpret the MSA and determine the status of the parties thereunder and
its conformity to the public policy of the state
of Oklahoma as contemplated in section 8.8.
Corp.-Alabama, 531 U.S. at 91, n. 6, 121 S.Ct. at
522 (noting that assertions that arbitration
costs are too high must be supported by proof
of the costs, such as filing fees, administrative
fees, and arbitrator’s fees, that will in fact be
imposed for the arbitration); Bradford v. Rockwell Semiconductor Systems, Inc., 238 F.3d 549,
556 (10th Cir. 2001) (concluding that there
should be a case-by-case analysis of whether
the costs of arbitration renders an arbitration
agreement unenforceable).
¶34 AOR-OK and USON contend that it is
the broad language in the arbitration provision
of the Purchase Agreement that clearly provides for all claims related to the MSA to be
resolved in binding arbitration. It is true that
section 11.01 of the Purchase Agreement
expresses a sweeping arbitration scope to
include contract and tort controversies arising
under the Purchase Agreement.28 Even if section 11.01 is incorporated into the MSA by reference in section 8.6, its arbitration scope still
relates to controversies under the Purchase
Agreement. The appellate record does not
indicate that any of CCA’s claims relate in any
way to the Purchase Agreement. Further, the
Purchase Agreement provides for cumulative
remedies,29 so that neither the Purchase Agreement nor the MSA gives rise to a presumption
that the parties agreed that an arbitrator would
have exclusive authority to interpret the contract. Generally, the courts will decide questions of arbitrability unless there is clear and
unmistakable evidence that the parties agreed
to arbitrate arbitrability. Kaplan, 514 U.S. at
944-945, 115 S.Ct. at 1924-1925. We leave to the
district court in the first instance to decide
whether any of CCA’s claims against AOR-OK
are within the arbitration provisions in section
8.6.
VIII. Evidentiary Hearing on Motion to
Compel Arbitration
¶35 Finally, CCA opposed the motion to
compel arbitration because participation in the
arbitral forum under the Commercial Arbitration Rules of the American Arbitration Association is conditioned upon the payment of exorbitant arbitration fees and costs. In response,
AOR-OK and USON urged that the medical
physicians have sufficient funds to pay the fees
and that an arbitrator might reallocate the fees
among the parties at the conclusion of the arbitration proceeding. This response did not dispel the allegation of exorbitant arbitration fees
and costs to be paid by CCA nor did it vitiate
the need for an evidentiary hearing as to
whether the costs render the arbitration provision unenforceable. See Green Tree Financial
Vol. 78 — No. 10 — 3/24/2007
¶36 We turn now to the procedural issue of
whether the district court should have conducted an evidentiary hearing before it
referred all claims to arbitration. This issue is
controlled by Rule 4(c) of the Rules for District
Courts. 12 O.S.Supp.2002, ch. 2, app. Rule 4(c)
requires either a hearing or a stipulation on
fact issues raised on a pre-trial motion.30 Here,
CCA filed briefs with citations of authorities
and affidavits and other documents in opposition to the motion to compel arbitration. CCA’s
filings opposing arbitration raised fact issues
as to whether the arbitration fees and expenses
are so excessive as to render arbitration unconscionable. CCA requested that the district
court conduct an evidentiary hearing before
ruling on the motion to compel arbitration.
The district court did not conduct an evidentiary hearing. Without a stipulation settling the
fact issues raised by CCA, the district court
was duty-bound under Rule 4(c) to grant
CCA’s requested evidentiary hearing and
allow CCA to present proof in support of its
opposition to the motion to compel arbitration.
Such a hearing comports with notions of procedural due process.31 Accordingly, we find the
district court clearly abused its discretion in
failing to follow Rule 4(c).
¶37 The order compelling arbitration on all
of CCA’s claims must be reversed and remanded. On remand, the district court must conduct
an evidentiary hearing on the existence of a
valid and enforceable arbitration agreement
and the expense of arbitration under the Commercial Arbitration Rules of the American
Arbitration Association before deciding which,
if any, of CCA’s claims are subject to an
enforceable arbitration agreement. Should the
district court determine that USON has no
arbitration agreement with CCA, it must proceed to hear the merits of all of CCA’s claims
against USON.32
771
IX. The Original Action
¶38 We consolidated CCA’s original action,
No. 102,612, with the retained appeal. The
relief CCA sought via this Court’s writ of mandamus has been granted in this appeal, and for
that reason, we would not issue the writ. However, CCA’s original action also urged us to
exercise our original jurisdiction as a court of
first instance to address the issue of whether
the state public policy may be circumvented by
an arbitration clause.
¶39 Our state constitution, Okla. Const., art.
7, §4, vests this Court with the discretion to
exercise original jurisdiction as a court of first
instance, concurrent with the jurisdiction of
the district courts, as well as the authority to
issue writs to the courts below. Although we
may exercise original jurisdiction to entertain a
case in the first instance as distinguished from
our appellate jurisdiction, Burks v. Walker, 1909
OK 317, 109 P. 544, 25 Okl. 353, Syllabus by the
Court, No. 3, historically, we have exercised
our original jurisdiction to entertain private
disputes when a great public concern is
involved or if a great injury will be suffered by
our failure to exercise original jurisdiction. Jarman v. Mason, 1924 OK 722, ¶20, 229 P. 459, 463,
102 Okl. 278. Otherwise, we leave the case to
the jurisdiction of the district court in the first
instance. Kitchens v. McGowen, 1972 OK 140,
¶6, 503 P.2d 218, 219.
¶40 We recognize the egregious nature of
illegal patient-fee splitting and unlicensed
practice of medicine, fraud and fraud in the
inducement, and misappropriation and
embezzlement as claimed by CCA. We also
recognize that CCA’s physicians are engaged
in oncology medical practices throughout the
state. However, this suit involves private litigants, private contracts, and alleged tortious
conduct of private entities. We do not view this
case as involving the interests of the sovereign
state over which we would assume original
jurisdiction to sit as a court of first instance or
otherwise requiring this tribunal of last resort
to function as the trial court. Accordingly, we
do not assume original jurisdiction in No. 102,
612.
X. Conclusion
¶41 We conclude that the district court erred
in refusing to conduct an evidentiary hearing
as requested by CCA on the fact issues raised
in the filings on the motion to compel arbitration. We also conclude, as a matter of law, that
the arbitration provision in section 7.2(d) of the
772
MSA is not enforceable under the FAA or the
OUAA. We reverse the order dissolving the
temporary stay of arbitration and compelling
all claims to arbitration and remand this cause
to the district court. On remand, the district
court shall proceed to conduct an evidentiary
hearing and, in ruling on the motion to compel
arbitration, make findings of fact and conclusions of law on all issues raised by the parties.
We note appellees’ lately filed motion to dismiss or request for instructions. The motion to
dismiss is denied. The request for instructions
may be presented to the district court on
remand.
ORDER COMPELLING ARBITRATION
REVERSED AND CAUSE REMANDED
WITH INSTRUCTIONS; ORIGINAL
JURISDICTION DENIED.
WINCHESTER, C.J., EDMONDSON, V.C.J.,
and LAVENDER, HARGRAVE, OPALA, TAYLOR, and COLBERT, JJ., concur.
KAUGER, J., concurs in result.
WATT, J., concurs in part and dissents in part.
1. The parties have not stipulated to the basic facts set out in this
opinion, and on remand these facts may be contested.
2. The appellate record indicates that, in 1995, there were two
oncology management companies with the expertise to be the business manager for groups of physicians with oncology medical practices. They were Physician Reliance Network, Inc. (PRN) located in
Dallas Texas, and AOR located in Houston, Texas. In 1999, AOR and
PRN merged and became USON. USON is a Delaware corporation
located in Houston, Texas. USON is not registered to do business in
Oklahoma.
3. The record contains an affidavit of Dr. Keller stating that he has
been a licensed physician in Oklahoma since 1978, he is a physician
with CCA, he was a shareholder and president of the predecessor to
CCA, and he signed the MSA on behalf of the physicians at CCA by
virtue of limited powers of attorney drafted by AOR. The affidavit
does not provide any information as to this Oklahoma physician’s representation of the Texas partnership. The affidavit does state that the
transaction documents were drafted by AOR and that AOR was
unwilling to negotiate the terms of the documents because they “were
intended to be standardized agreements that needed to be uniform
between practices they managed.” Apparently, Dr. Keller’s representation of the Texas partnership was at the behest of AOR.
4. The transactional documents executed in March, 1995, included
the assignment of the MSA from AOR to AOR-OK and a special power
of attorney to AOR-OK. The assignment from AOR, as successor in
interest to the Texas partnership, “sold, transferred, assigned and conveyed” to AOR-OK “all revenues, payments, profits, proceeds,
awards, compensation, instruments, documents, actions, causes of
action, benefits, rights, refunds, monies, and property of every kind . . .
emanating from that one certain Management Services Agreement . . .
and all other rights, powers, privileges and remedies of Assignor
thereunder (the ‘contract rights’).” The special power of attorney from
CCA authorized AOR-OK to handle the billing of CCA’s patient
accounts and the receiving, collecting, and depositing of patient fees.
5. The MSA defined “adjusted gross revenue” as the sum of professional services revenues and ancillary revenue. It defined “professional services revenues” as all professional fees actually recorded
each month on an accrual basis for professional medical services and
related health care services rendered by the physicians and capitation
revenues allocated to professional services revenues. And, it defined
“ancillary revenue” as all other revenue actually recorded each month.
Simply stated, the MSA provided that the business management fee,
after the first five years, was to be 24.7% of CCA’s accrued patient revenues and all other accrued revenue.
6. In the original action, CCA sought a writ of mandamus directing the district court to stay arbitration, to conduct an evidentiary
Vol. 78 — No. 10 — 3/24/2007
hearing after reasonable discovery, and to determine whether there
exists a valid and enforceable agreement to arbitrate between the parties. We consolidated the original action with the appeal. We treated
the original proceeding as seeking a stay pending appeal and stayed
the arbitration proceeding during the pendency of this appeal.
7. 9 U.S.C. §§1, et seq.
8. This Court has a duty to inquire into the propriety of its jurisdiction. Fields v. A & B Electronics, 1990 OK 7, ¶4, 788 P.2d 940, 941.
9. Although the district court order did not determine that the
MSA, or any other agreement involved in this litigation, is a contract
affecting interstate commerce and governed by the FAA, that issue
may be raised on remand. Accordingly, we approach this appeal
mindful of the federal arbitration law.
10. Under the FAA, an appeal may be taken from a final decision
with respect to arbitration, 9 U.S.C. §16(a)(3), but an appeal may not be
taken from an interlocutory order compelling arbitration. 9 U.S.C.
§16(b)(2). In deciding whether an order compelling arbitration and
dismissing the suit was final, Green Tree followed the established
meaning of a “final decision.” Green Tree concluded that the order compelling arbitration and dismissing the suit left no claims pending in
federal court and was a final appealable order, while an order compelling arbitration and staying the suit in federal court would be an
interlocutory non-appealable order. 531 U.S. at 87-88, 121 S.Ct. at 520521.
11. The state arbitration statutes list arbitration-related orders from
which an appeal may be taken, 15 O.S.2001, §817, now codified at 12
O.S.Supp.2005, §1859, but do not contain language prohibiting an
appeal from an order compelling arbitration similar to 9 U.S.C.
§16(b)(2). Gilliland determined that the statutory list of appealable
arbitration-related orders is not exclusive and that, in the absence of a
§16(b)(2) prohibition against appeal, a pre-judgment order compelling
arbitration may be a final appealable order under the general appeals
statutes, 12 O.S.2001, §§952 and 953.
12. The pre-judgment order compelling arbitration left no claims
pending, and it effectively precluded CCA from “proceeding further
in the case for the pursuit of the very relief it was seeking.” Gilliland,
at ¶8, 904 P.2d at 77. It precluded a declaratory judgment as to the status of CCA and USON under the MSA (CCA alleged that USON is an
interloper with no legal authority or contractual right to manage
CCA’s business) and a declaratory judgment that the MSA is against
the public policy of the state of Oklahoma and illegal (CCA alleged the
MSA, contrary to Oklahoma law, allows for patient fee splitting and
corporate practice of medicine and therefore it is void ab initio). Similar to an end-of-the-line dismissal, the order compelling arbitration is
a final appealable order under our general appeals statutes, 12
O.S.2001, §§952 and 953.
13. Oklahoma’s uniform arbitration act, 15 O.S.2001, §§801, et seq.,
is now codified at 12 O.S.Supp.2005, §§1851-1881. 2005
Okla.Sess.Laws, ch.364. Effective January 1, 2006, the 2005 legislation
expressly applies to all arbitration agreements without regard to the
date of the agreement. 12 O.S.Supp.2005, §1854.
In the district court, AOR-OK and USON urged that Texas law
governs this dispute as set out in the MSA. CCA responded that,
under Texas law, Oklahoma law would be applied to this case because,
among other reasons, it concerns the practice of medicine and the business management of the practice of medicine all within Oklahoma.
CCA reargued it position on appeal. On the other hand, AOR-OK and
USON effectively abandoned Texas law by their reliance on Oklahoma’s arbitration statutes and Rogers v. Dell Computer Corp., 2005 OK
51, 138 P.3d 826.
14. A general ruling in favor of a party embraces each finding necessary to sustain the judgment. Burdick v. Indep. School Dist. No. 52 of
Okla. County, 1985 OK 49, ¶12, 702 P.2d 48, 54; Lester v. Streich, 1935 OK
862, 57 P.2d 246, 248. A finding of the existence of a valid enforceable
arbitration agreement is necessary to support the order sending all of
CCA’s claims to arbitration.
15. AOR-OK and USON argued in the district court, at least by
implication, that they should be treated as one. In their appellate
answer brief, AOR-OK and USON take a similar position. They assert
that AOR-OK is a wholly-owned subsidiary of USON and that USON
is “a nationwide health management company” that “manages the
business aspects of over 850 physicians in numerous groups located in
28 states” by virtue of “agreement between US Oncology’s direct and
indirect subsidiaries and numerous physician groups.”
16. In its appellate brief in chief, CCA again asserts that even
though “AOR-OK is the contractually designated ‘business manager,’
USON without legal or contractual authority is the de facto ‘business
manager’ of CCA, controlling its personnel, practice, revenues, operations, business and administrative affairs although a non-domesticated and medically unlicensed foreign corporation.”
17. Generally, a corporation is a distinct legal entity separate and
apart from other legal entities unless separate corporate existence is a
scheme to perpetrate a fraud or one corporation is organized and controlled by the other corporation as a mere instrumentality or adjunct
so that it is a dummy or sham corporation. Tulsa Tribune Co. v. State ex
Vol. 78 — No. 10 — 3/24/2007
rel. Okla. Tax Comm., 1989 OK 13, ¶¶20-21, 768 P.2d 891, 893; Gulf Oil
Corp. v. State, 1961 OK 71, ¶10, 360 P.2d 933, 936.
18. Under the principles of agency law or the doctrine of piercing
the corporate veil, the law may disregard corporate distinctions and
treat two separate legal entities as one. Frazier v. Bryan Mem’l Hosp.
Auth., 1989 OK 73, ¶, 775 P.2d 281, 288. The nature of the relationship
is critical to pierce the corporate veil. Frazier involved the Hospital
Corporation of America and its wholly-owned subsidiary HCA Management Company, Inc. Although the subsidiary had the management
agreement with the hospital authority to operate the hospital, Frazier
sued the hospital and the parent corporation but not the subsidiary,
alleging negligence in the creation and implementation of employment and administrative policies in the operation of the hospital
under the management agreement. The parent corporation moved for
and was granted summary judgment because it was not a party to the
management agreement. In Frazier, this Court found material facts
regarding the nature of the relationship between the parent company
and its subsidiary to be in dispute and reversed the summary judgment. Although CCA alleged that USON has assumed AOR-OK’s role
under the MSA, there is no evidence in this appellate record showing
the nature of the relationship between AOR-OK and USON.
19. 15 O.S.2001, §155 provides: “When a contract is reduced to
writing, the intention of the parties is to be ascertained from the writing alone, if possible, subject, however, to the other provisions of this
article.” 15 O.S.2001, §157 provides: “the whole of a contract is to be
taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others.”
20. Subsection (d) of Section 7.2 Termination provides:
(d) Legislative, Regulatory or Administrative Change. In the
event there shall be a change in the Medicare or Medicaid
statutes, State statutes, case laws, regulations or general instructions, the interpretation of any of the foregoing, the adoption of
new federal or State legislation, or a change in any third party
reimbursement system, any of which are reasonably likely to
materially and adversely affect the manner in which either party
may perform or be compensated for its services under this Management Services Agreement or which shall make this Management Services Agreement unlawful, the parties shall immediately enter into good faith negotiations regarding a new service arrangement or basis for compensation for the services furnished pursuant to this Management Services Agreement that
complies with the law, regulation, or policy and that approximates as closely as possible the economic position of the parties prior to the change. If good faith negotiations cannot
resolve the matter, it shall be submitted to arbitration as referenced in Section 8.6.
(Bold added.)
21. The FAA, 9 U.S.C. §2, governs agreements to settle by arbitration “a controversy thereafter arising out of such contract.” The
OUAA, 12 O.S.Supp.2005, §1857(a), governs agreements “to submit to
arbitration any existing or subsequent controversy arising between the
parties to the agreement.”
22. Reformation is a contract remedy available to conform a written contract to the parties’ antecedent agreement when that written
contract differs from the antecedent expressions on which the parties
based their agreement. See 15 O.S.2001, §156. Reformation requires
proof of the contract to be reformed and proof, by clear and convincing evidence, of a mutual mistake or mistake by one party and
inequitable conduct on the part of the other that resulted in a written
contract that did not reflect the parties intent. Thompson v. Estate of
H.H. Coffield, 1995 OK 16, ¶10, 894 P.2d 1065, 1067. Reformation corrects a mistake between the written document and the actual intent of
the contracting parties, but reformation does not rewrite a contract
because it has become less favorable to one party due to subsequent
economic changes.
23. By this we do not mean that we would not compel interest arbitration under our collective bargaining statutes, such as 11 O.S.2001,
§51-101 et seq. Labor law recognizes two kinds of arbitration, grievance
arbitration and interest arbitration. Mulvaney Mechanical, Inc., 288 F.3d
491, 494 (2nd Cir. 2002). Grievance arbitration involves interpreting an
existing employment contract to determine whether its conditions
have been breached. Id. Interest arbitration involves referring a dispute created by the failure of the parties to negotiate a new contract to
an arbitration panel in order to establish terms and conditions of a
future employment contract. Id.; see Montgomery Mailers’ Union No. 127
v. Advertiser Co., 827 F.2d 709, 716, n. 7 (11th Cir. 1987) (noting that in
interest arbitration, the arbitrator writes the terms of a new contract
when the employer and the employees have reached an impasse in the
collective bargaining process). Interest arbitration clauses are enforceable only with respect to mandatory subjects of collective bargaining.
Mulvaney Mechanical, Inc., 288 F.3d at 505. “An interest arbitration
clause is void as contrary to public policy to the extent that it applies
to nonmandatory subjects of bargaining, i.e., subjects other than
wages, hours and other terms and conditions of employment; this
773
includes the insertion of a successor interest arbitration clause in a new
agreement.” Id. Because interest arbitration deprives the parties of
their right to exclude nonmandatory subjects from the collective bargaining agreement, interest arbitration is contrary to the national labor
policy. Nat’l Labor Relations Bd. v. Sheet Metal Workers Int’l Assoc., Local
No. 38, 575 F.2d 394, 399 (2nd Cir. 1978). In sum, interest arbitration is
contrary to the freedom of contract and generally disfavored.
24. Our independent research did not reveal any decision dealing
with a contract clause that uses binding arbitration to rewrite the contract obligations similar to section 7.2(d). Section 7.2(d) is not akin to
an interest arbitration provision nor is it similar to a “favored nations”
clause in a gas purchase contract calling for price re-determination
based on a higher price paid in the area. See Texas Gas Transmission
Corp. v. Shell Oil Co., 363 U.S. 263, 80 S.Ct. 1122, 4 L.Ed.2d 1208 (1960).
25. Section 8.6 Arbitration of the MSA provides:
The parties shall use good faith negotiation to resolve any controversy, dispute or disagreement arising out of or relating to
this Management Services Agreement or the breach of this Management Services Agreement. Any matter not resolved by negotiation shall be submitted to binding arbitration and such arbitration shall be governed by the terms of Article XI of the Purchase Agreement, which, as it applies to the parties hereto, is
incorporated herein by reference in its entirety.
(Bold added.)
26. USON argues that its manages the business aspects of physician groups through its “direct and indirect subsidiaries.”
27. Section 8.8 Enforcement provides:
In the event either party resorts to legal action to enforce or
interpret any provision of this Management Services Agreement, the prevailing party shall be entitled to recover the costs
and expenses of such action so incurred, including, without lim(Bold added.)
itation, reasonable attorneys’ fees.
28. Section 11.01 Mediation and Arbitration of the Purchase Agreement provides:
Any dispute, controversy or claim (including without limitation
tort claims, requests for provisional remedies or other interim
relief, and issues as to arbitrability of any matter) arising out of
this Purchase Agreement, or the breach thereof, that cannot be
settled through negotiation shall be settled (a) first, by the parties trying in good faith to settle the dispute by mediation under
the Commercial Mediation Rules of the American Arbitration
Association (“AAA”) (such mediation session to be held in
Tulsa, Oklahoma, and to commence within 15 days of the
appointment of the mediator by the AAA), and (b) if the controversy, claim or dispute cannot be settled by mediation, then by
arbitration administered by the AAA under its Commercial
Arbitration Rules (such arbitration to be held in Tulsa, Oklahoma before a single arbitrator and to commence within 15 days
of the appointment of the arbitrator by the AAA), and judgment
on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.
(Bold added.)
29. Section 12.02 Remedies No Exclusive provides:
No remedy conferred by any of the specific provisions of this
Purchase Agreement or any other Transaction Document is
intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of
any one or more remedies by any party hereto shall not constitute a waiver of the right to pursue other available remedies.
(Bold added.)
30. Rule 4(c) of the Rules for the District Courts reads:
Motions raising fact issues shall be verified by a person having knowledge of the facts, if possible; otherwise, a verified
statement by counsel of what the proof will show will suffice
until a hearing or stipulation can be provided.
(Bold added.)
31. Procedural due process requires a meaningful opportunity to be heard. Okla. Const., art. 2, §§6 and 7; Flandermeyer v.
Bonner, 2006 OK 87, 152 P.3d 195.
32. The district court must hear CCA’s claims against USON
that are not covered by an arbitration agreement even if CCA’s
claims against AOR-OK are properly referred to arbitration. See
Moses H. Cone Mem’l Hosp., 460 U.S. at 20-21, 103 S.Ct. at 939
(wherein the construction company’s claims were referred to
arbitration and the hospital was left to defend against the architect in state court); Volt Info. Sciences, Inc., 489 U.S. at 476, n. 5, 109
S.Ct. at 1254 (noting that the FAA is not designed to deal with
problems that arise in multiparty contractual disputes where
some but not all parties have arbitration agreements); see also 12
774
O.S.Supp.2005, §1858(G) (providing that arbitration controversies may be severed from other claims).
2007 OK 13
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. JOHNIE RAY O’NEAL,
Respondent.
SCBD No. 5164; OBAD-1683. March 13, 2007
¶0 ORDER APPROVING RESIGNATION
PENDING DISCIPLINARY PROCEEDINGS
¶1 Upon consideration of the complainant’s,
Oklahoma Bar Association (Bar Association),
application pursuant to Rule 8.2 of the Rules
Governing Disciplinary Proceedings (5
O.S.2001 Ch. 1, App. 1-A), for an order approving the resignation of the respondent, Johnie
Ray O’Neal, pending disciplinary proceedings,
the application and resignation reveal the following.
¶2 On February 27, 2007, the respondent
filed with this Court his affidavit of resignation
from membership in the Bar Association
pending disciplinary proceedings.
¶3 The respondent’s affidavit of resignation
reflects that: a) it was freely and voluntarily
rendered; b) he was not subject to coercion or
duress; and c) he was fully aware of the consequences of submitting the resignation.
¶4 The affidavit of resignation states respondent’s awareness of the Complaint and
Amended Complaint pending against him in
this proceeding and his history of professional
discipline.
¶5 The Complaint in S.C.B.D. No. 5164 states
that:
(a) Count One: Jerry DeWitt paid $150.00 to
respondent and retained respondent to
represent him after he was arrested for
Driving Under the Influence. Respondent
failed to appear at DeWitt’s preliminary
hearing, but according to Respondent
communicated to the clerk of the
assigned judge that he would not be present. After obtaining a continuance of the
date for the preliminary hearing the
respondent appeared on the scheduled
date, filed an entry of appearance on
behalf of DeWitt, and obtained a continuance of the hearing. Respondent failed to
appear at the preliminary hearing
because he had been shot in the back during a robbery at the respondent’s home
the day before the hearing. The prelimi-
Vol. 78 — No. 10 — 3/24/2007
nary hearing was continued to the following month, respondent failed to
appear, and the hearing was passed for
another month to December 14, 2004. A
few days prior to that date respondent
and DeWitt met and respondent was paid
an additional $130.00, and respondent
noted the scheduled hearing date on the
receipt he gave DeWitt. Respondent
failed to appear at the December 14th
preliminary hearing. The assigned Judge
advised DeWitt to obtain another attorney. Prior to the hearing respondent
faxed a letter to the assigned judge and an
Assistant District Attorney requesting
them that he be allowed to withdraw
from DeWitt’s case and several other
cases. Respondent never discussed withdrawing from DeWitt’s case with DeWitt
prior to respondent’s letter. DeWitt
obtained another attorney to represent
him. On January 3, 2005, DeWitt wrote a
letter to respondent requesting a refund
of the $280.00 DeWitt had paid respondent. Respondent replied to the letter
explaining why respondent withdrew
from DeWitt’s case and the work respondent had completed. DeWitt filed a grievance with the Oklahoma Bar Association
and respondent replied to the grievance.
The Bar Association alleged that Respondent’s conduct violated Rules 1.1, 1.3, and
1.4 of the Oklahoma Rules of Professional
Conduct, 5 O.S.2001 Ch. 1, App. 3-A, as
amended.
(b) Count Two: Clayton Kidd retained
respondent in December 2004 to represent Kidd on drug charges in Tulsa County. Respondent appeared with Kidd at his
arraignment and the preliminary hearing
was set for February 8, 2005. Respondent
failed to appear at the preliminary hearing and it was continued to February 22,
2005. Respondent did not communicate
with Kidd at any time during this period.
Respondent failed to appear at the hearing on February 22nd. The docket entry
for that hearing reflects that Kidd stated
to the court that he had made repeated
telephone calls to O’Neal and had been
unable to make contact with O’Neal. It
also shows that the clerk was required to
phone O’Neal requesting that he contact
the court regarding his presence for Kidd,
and the hearing was continued March 8,
2005. Respondent appeared late for the
preliminary hearing on March 8th and it
Vol. 78 — No. 10 — 3/24/2007
was continued to March 22, 2005, at
O’Neal’s request. On March 22, 2005,
respondent failed to appear at the preliminary hearing and he failed to communicate with Kidd. The next day Kidd dismissed respondent and retained a new
attorney. On April 9, 2005, Kidd filed a
grievance wit the Oklahoma Bar Association. On April 13, 2005, the Bar Association requested a response from respondent, but he failed to respond to the
grievance. Two months later the matter
was referred to the General Counsel’s
Office of the Bar Association, and after
requesting an extension of time, respondent replied to the grievance. Respondent stated various reasons for not
attending the preliminary hearings,
including attending simultaneously
scheduled hearings, not being paid, and
his client not providing a witness as previously claimed by the client. The Bar
Association alleged that respondent’s
conduct violated Rules 1.1, 1.3, 1.4. and
3.2 of the Oklahoma Rules of Professional Conduct, 5 O.S.2001 Ch. 1, App. 3-A, as
amended.
(c) Enhancement: On February 27, 1998,
Respondent received a private reprimand
from the Professional Responsibility Commission. The reprimand involved violations
of Rule 8.4(b), Oklahoma Rules of Professional Conduct, and Rule 1.3, Rules Governing Disciplinary Proceedings. Respondent was arrested and subsequently
charged in Tulsa County with three counts
of Attempting to Obtain a Controlled and
Dangerous Substance by Use of a Forged
Prescription. Respondent received both inpatient and out-patient treatment, successfully completed the Tulsa County Drug
Court Program, and the charges against
respondent were dismissed.
¶6 The Amended Complaint in S.C.B.D. No.
5164 states that:
(a) Count Three: Respondent was hired by
Alvis Higgins to review materials relating
to Higgins’ criminal conviction and represent him in a habeas corpus proceeding.
Higgins’ sister-in-law paid respondent
$500.00 to represent Higgins and she provided respondent with records from Higgins’ criminal proceeding. Thereafter
respondent failed to communicate in any
way with Higgins, Higgins’ sister-in-law, or
Higgins’ wife. Respondent did not return
775
the numerous telephone calls of Higgins’
wife and sister-in-law. Upon receiving a
grievance from Higgins, the Bar Association requested the respondent to respond
within twenty days. Respondent requested
an additional ten days to respond, but
failed to timely respond to the grievance.
Several weeks later he responded to the
grievance and stated that he had returned
the materials provided by Higgins’ family
five days after receiving the Higgins’ grievance. When the Amended Complaint was
filed with the Supreme Court, the respondent had not responded to the original
Complaint filed with the Supreme Court
several weeks earlier. The Amended Complaint alleges that respondent violated Rule
1.1, 1.3, 1.4, and 3.2 of the Oklahoma Rules
of Professional Conduct and Rule 5.2 of the
Rules Governing Disciplinary Proceedings.
¶7 The resignation states that the respondent
is aware that the allegations against him, if
proven, would constitute violations of Rules
1.3 and 5.2 of the Rules Governing Disciplinary
Proceedings, 5 O.S.2001, Ch. 1, App. 1-A, and
Rules 1.1, 1.3, 1.4, 3.2 and 8.4 (b) of the Rules of
the Oklahoma Rules of Professional Conduct, 5
O.S.2001 Ch.1, App. 3-A, and his oath as an
attorney. The respondent acknowledges that
he has not filed a response to the Complaint or
Amended Complaint filed in this Court as
required by Rule 6.4 of the Rules Governing
Disciplinary Proceedings. Respondent states
that he is aware that the burden of proof rests
upon the Bar Association, and that he waives
his right to contest the allegations made
against him.
¶8 The resignation states that the respondent
is aware of the requirements of Rule 9.1, of the
Rules Governing Disciplinary Proceedings,
and shall comply with that Rule.
¶9 The respondent states that he is aware
that he may make no application for reinstatement prior to the expiration of five years from
the effective date of the order approving his
resignation, and that reinstatement requires
compliance with Rule 11 of the Rules Governing Disciplinary Proceedings. See 5 O.S.2001
Ch. 1, App. 1-A, Rule 8.2, Rules Governing
Disciplinary Proceedings; State ex rel. Oklahoma
Bar Association v. Bourland, 2001 OK 12, 19 P.3d
289; In re Reinstatement of Hird, 2001 OK 28, 21
P.3d 1043.
¶10 The respondent acknowledges that he
must surrender his Oklahoma Bar Association
776
membership card to the Office of the
General Counsel contemporaneously with his
resignation.
¶11 The respondent acknowledges that he
must cooperate with the Office of the General
Counsel by providing current contact information and identifying active cases wherein client
documents and files should be returned to the
client or forwarded to new counsel, and that he
must cooperate in providing fees or funds
owed by the respondent to his clients and
determining the amount of those fees and
funds.
¶12 The respondent states that he is aware
that the Clients’ Security Fund may receive
claims from his former clients, and that he
shall pay to the Oklahoma Bar Association,
prior to reinstatement, those funds, including
principal and interest, expended by the
Clients’ Security Fund for claims against him.
See 5 O.S.2001 Ch. 1, App. 1-A, Rule 11.1(b),
Rules Governing Disciplinary Proceedings;
State ex rel. Oklahoma Bar Association v. Heinen,
2003 OK 36, ¶ 9, 84 P.3d 708, 709.
¶13 The application for approval of respondent’s resignation filed by the Bar Association
states that it has incurred costs in the investigation of respondent in the amount of $161.36.
Respondent’s resignation acknowledges these
costs, and he states that he will reimburse the
Oklahoma Bar Association. When professional
discipline is imposed, costs may be awarded
against a respondent. 5 O.S.2001 Ch. 1, App. 1A, Rule 6.16, Rules Governing Disciplinary
Proceedings. Resignation pending disciplinary
proceedings is tantamount to a disbarment.
State ex rel. Oklahoma Bar Association v. Miller,
2006 OK 55, ¶ 3, 142 P.3d 425, 426; State ex rel.
Oklahoma Bar Association v. Erbar, 1995 OK 1,
895 P.2d 291. We have ordered respondents to
pay costs when we have approved resignations pending disciplinary proceedings. See,
e.g., State ex rel. Oklahoma Bar Association v.
Faulk, 2001 OK 86, ¶ 6, 37 P.3d 809, 811. The
application by the Bar Association for a
ssessment of costs in the amount of $161.36 is
granted.
¶14 The official roster name and address of
the respondent is Johnie Ray O’Neal, O.B.A.
No. 6782, 5021 E. 4th St., Tulsa, OK 74112-1417.
¶15 IT IS THEREFORE ORDERED that the
application by the Bar Association and
O’Neal’s resignation be approved.
Vol. 78 — No. 10 — 3/24/2007
¶16 IT IS FURTHER ORDERED that respondent’s name be stricken from the Roll of Attorneys and that he make no application for reinstatement to membership in the Oklahoma Bar
Association prior to five years from the effective date of this order.
¶17 IT IS FURTHER ORDERED that respondent shall pay costs in the amount of $161.36 to
the Oklahoma Bar Association within ninety
(90) days of the effective date of this order.
¶18 IT IS FURTHER ORDERED that if any
funds of the Clients’ Security Fund of the Oklahoma Bar Association are expended on behalf
of respondent, he must show the amount paid
and that the same has been repaid, with interest, to the Oklahoma Bar Association to reimburse such Fund prior to reinstatement.
¶19 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 12th DAY OF
MARCH, 2007.
/s/ James R. Winchester
JAMES R. WINCHESTER,
CHIEF JUSTICE
¶20 ALL JUSTICES CONCUR
2007 OK 14
GINA CASIDA, individually, and natural
mother and next of kin of Braydon Casida,
Plaintiff/Appellant, v. J. CLIFTON COFFEY,
M.D. and J. COFFEY, M.D., P.C., FARMERS
UNION HOSPITAL ASSOCIATION, and
THE FOUNDATION BOARD OF GREAT
PLAINS REGIONAL MEDICAL CENTER
IN ELK CITY, OKLAHOMA,
Defendants/Appellees.
No. 102,960. March 13, 2007
APPEAL FROM THE DISTRICT COURT
OF BECKHAM COUNTY, OKLAHOMA
HONORABLE CHARLES GOODWIN
TRIAL JUDGE
¶0 Plaintiff’s medical negligence action was
dismissed for failure to file the affidavit of
medical negligence required by 63 O.S. Supp.
2003 § 1-1708.1E. On December 19, 2006, this
Court held 63 O.S. Supp. 2003 § 1-1708.1E
unconstitutional. Zeier v. Zimmer, Inc., 2006 OK
98, ___ P.3d _____ (mandate issued March 2,
2007). Because that case is dispositive of the
sole issue in this appeal, we reverse the trial
court’s orders of dismissal.
Vol. 78 — No. 10 — 3/24/2007
REVERSED
Tom Wilcox, Clinton, Oklahoma, for Plaintiff/Appellant.
David A. Branscum, Whitney E. Buergler,
FOLIART HUFF OTTAWAY & BOTTOM,
Oklahoma
City,
Oklahoma,
for
Defendants/Appellees Farmers’ Union Hospital Association and The Foundation Board of
Great Plains Regional Medical Center in Elk
City, Oklahoma.
John Wiggins, Lane O. Krieger, WIGGINS
SEWELL & OGLETREE, Oklahoma City, Oklahoma, for Defendants/Appellees J. Clinton
Coffey, M.D. and J. Coffey, M.D., P.C.
(NOTE: Attorneys shown are only those for
whom an Entry of Appearance has been filed.)
MEMORANDUM OPINION
HARGRAVE, J.
¶1 The sole issue in this case is whether the
trial court erred in dismissing plaintiff’s medical negligence action for failure to file the affidavit required by 63 O.S. Supp. 2003 § 11708.1E. The statute required the plaintiff in a
medical liability action to attach to the petition
an affidavit attesting that the plaintiff has consulted and reviewed the facts of the claim with
a qualified expert and has obtained a written
opinion from a qualified expert that the plaintiff’s claim is meritorious and based on good
cause. If the affidavit is not attached, the court
shall, upon motion of the defendant, dismiss
the action without prejudice to its refiling.
Upon application of the plaintiff for good
cause shown, the court may grant an extension
of time to file.
¶2 The plaintiff previously had filed a medical negligence action which she voluntarily
dismissed on April 19, 2004. The plaintiff refiled her medical negligence action against the
defendants on April 15, 2005, but did not file
the required affidavit of medical negligence.1
The plaintiff’s application for an extension of
time was denied. The defendants appeared
specially and moved to dismiss for failure to
file the required affidavit. Plaintiff subsequently filed an amended petition with a medical
negligence affidavit attached. The trial judge
dismissed the case for failure to comply with
63 O.S. Supp. 2003 § 1-1708.1E.2 On appeal
plaintiff argued that she had complied with the
statute by filing an amended petition or that
she had shown that good cause existed for an
extension of time to file the affidavit.
777
¶3 This Court recently held in Zeier v. Zimmer, Inc., 2006 OK 98, ___ P.3d ____ (mandate
issued March 2, 2007) that the affidavit of medical negligence requirement of 63 O.S. Supp.
2003 § 1-1708.1E was an unconstitutional special law prohibited by Art. 5, § 46 of the Oklahoma Constitution and that it created an
unconstitutional monetary barrier to the access
to courts guaranteed by the Oklahoma Constitution, Art. 2, § 6. We reversed the trial court’s
order dismissing that case for failure to attach
the affidavit. The case at bar was retained by
this Court following retention of the Zeier case.
¶4 This Court finds that Zeier v. Zimmer, Inc.,
supra, is dispositive of the sole issue in this
appeal.3 The case at bar was dismissed due to
plaintiff’s failure to comply with 63 O.S. Supp.
2003 §1-1708.1E. The statute has been declared
unconstitutional and whether the plaintiff did
or did not comply is moot. The trial judge’s
orders of dismissal were in error and must be
reversed.
REVERSED
¶5 CONCUR: WINCHESTER, C.J.,
EDMONDSON, V.C.J., HARGRAVE,
OPALA, KAUGER, WATT, TAYLOR,
COLBERT, JJ.
ORIGINAL JURISDICTION ASSUMED;
WRIT GRANTED; CAUSE REMANDED.
¶6 DISSENT: LAVENDER, J.
1. The statute requiring the medical negligence affidavit was
enacted as part of the Affordable Access to Health Care Act, Laws
2003, ch. 390, § 5, effective July 1, 2003.
2. The action was dismissed with prejudice as to defendants Farmers’ Union Hospital Association and The Foundation Board of Great
Plains Regional Medical Center in Elk City, Oklahoma, by order filed
October 19, 2005. The case was dismissed with prejudice as to the
remaining defendants by order filed December 12, 2005.
3. Rule 1.201, Oklahoma Supreme Court Rules, provides that this
Court may summarily affirm or reverse any case in which it appears
that a prior controlling appellate decision is dispositive of the appeal.
12 O.S. 2001, Ch. 15, App. 1.
2007 OK 15
MARGIE L. HOLMES, ADMINISTRATOR
OF THE ESTATE OF TERESA LEE ELAM,
Petitioner, v. HONORABLE REBECCA
BRETT NIGHTINGALE, District Judge,
Respondent.
No. 103,762. March 20, 2007
APPLICATION TO ASSUME ORIGINAL
JURISDICTION AND PETITION FOR
WRIT OF PROHIBITION
¶0 The petitioner, Margie L. Holmes
(Holmes/administrator), represents the estate
of Teresa Lee Elam (Elam/patient) in a medical
malpractice suit related to Elam’s death. The
real parties in interest are St. John Medical
778
Center, Inc. (St. John/hospital) and Interim
Healthcare of Tulsa, Inc. (Interim/collectively,
health care providers). Holmes seeks to enjoin
the respondent, Honorable Rebecca Brett
Nightingale (trial judge), from enforcing an
order authorizing the release of protected
health information. We determine that a court
order permitting, rather than mandating, oral
communication with health care providers
entered as a result of an individual clearly
placing mental or physical conditions in issue
by filing suit does not contravene HIPAA’s
confidentiality requirements. Nevertheless, the
order presented does not: a) conform with the
statutory requirements of 76 O.S. Supp. 2005
§19 and 12 O.S. Supp. 2004 §2503(D)(3) precluding general disclosure of all of a party’s
medical records and restricting discovery to
materials relevant to any issue in the malpractice action or to the injury or death in litigation;
or b) adequately advise physicians that they
may not be compelled to participate in oral ex
parte communications. We assume original
jurisdiction and grant the writ. The cause is
remanded for the entry of an order consistent
with this opinion.
Steven R. Hickman, FRASIER, FRASIER &
HICKMAN, LLP, Tulsa, Oklahoma, for Petitioner,
Karen L. Callahan, Leslie C. Weeks, Beth S.
Reynolds, RODOLF & TODD, Tulsa, Oklahoma, for Real Party in Interest, St. John Medical Center, Inc.,
Jeffrey A. Glendening, James A. Higgins, Tara
P. Goodnight, THE GLENDENING LAW
FIRM, P.L.L.C., Tulsa, Oklahoma, for Real
Party in Interest, Interim Healthcare of Tulsa,
Inc.
WATT, J.:
¶1 We assume original jurisdiction to decide
an issue not addressed in a published opinion1
since the enactment in 1996 of the Health
Insurance Portability and Accountability Act
(HIPAA),2 42 U.S.C. §1320d, et. seq.3 The initial
issue presented is whether, when an individual
has clearly placed mental or physical conditions in issue by filing suit,4 a court order
allowing, but not mandating, oral communications with health care providers violates
HIPAA’s confidentiality provisions.
¶2 We hold that a court order permitting,
rather than mandating, oral communication
Vol. 78 — No. 10 — 3/24/2007
with health care providers entered as a result
of an individual clearly placing mental or
physical conditions in issue by filing suit does
not contravene HIPAA’s confidentiality
requirements. Our determination is supported
by: 1) 45 CF.R. §164.512(e)(1) governing the
procedural requirements and safeguards
imposed by HIPAA which clearly anticipates
disclosures of protected health information
pursuant to a court order;5 2) extant federal
jurisprudence;6 and 3) this Court’s pre-HIPAA
decisions in Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151 and
Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230
recognizing that where there has been a waiver of the physician/patient privilege pursuant
to §19(B)(1) of title 76,7 judicial authority may
not be utilized to facilitate or impede ex parte
communications with the plaintiff’s health
care providers.
¶3 Our favorable resolution of the issue
regarding ex parte communications requires us
to examine the order issued for compliance
with 76 O.S. Supp. 2005 §19 and 12 O.S. Supp.
2004 §2503(D)(3).8 Furthermore, we must
determine whether the order adequately
advises physicians that they may not be
compelled to participate in oral ex parte
communications.
¶4 Although the order refers to the statutory
requirements of 76 O.S. Supp. 2005 §19 and 12
O.S. Supp. 2004 §2503(D)(3), we hold that its
language is overly broad and that it falls short
of meeting the statutorily imposed standards.
The statutes clearly limit any discoverable
materials to information relevant to the claims
or defenses asserted in the malpractice action
or to the injury or death in litigation. Furthermore, the order does not advise clearly that no
physician may be compelled to participate in
ex parte communications. Therefore, jurisdiction is assumed, the writ is granted and the
cause is remanded for entry of an order consistent with this opinion.
FACTS
¶5 On October 14, 2005, Theresa Lee Elam
(Elam/patient/decedent) was injured in an
automobile accident. Elam died on February
23, 2006, while under the care of Interim
Healthcare of Tulsa and St. John Health System, Inc. On April 11, 2006, Holmes filed suit
on behalf of Elam’s estate asserting claims of
medical negligence against the health care
providers. The following week, an amended
petition was filed identifying St. John Medical
Vol. 78 — No. 10 — 3/24/2007
Center, Inc. as a defendant and medical
provider.
¶6 Following Holmes’ failure to execute
allegedly HIPAA-compliant medical authorizations provided by St. John, the hospital filed
a motion to dismiss or in the alternative an
application for release of protected health
information on May 19, 2006. Interim filed a
notification of intent to obtain protected health
care information on June 27, 2006. In an order
signed on that date and filed on July 5, 2006,
the trial court ordered the release of Elam’s
protected health care information “pursuant to
76 O.S. §19(B), 12 O.S. §2503(d)(3) and 45 C.F.R.
§164.512 (e)(1)(i) of the Health Insurance Portability and Accountability Act” which authorized the patient’s health care providers to
“orally communicate and to discuss such ‘protected health information’ if they choose with
the parties’ attorneys of record in this action.”9
¶7 Holmes filed an application to assume
original jurisdiction and petition for writ
of prohibition on September 13, 2006. The
health care providers filed their responses on
September 29th.
¶8 A COURT ORDER PERMITTING,
RATHER THAN MANDATING, ORAL
COMMUNICATION WITH HEALTH CARE
PROVIDERS ENTERED AS A RESULT OF
AN INDIVIDUAL CLEARLY PLACING
MENTAL OR PHYSICAL CONDITIONS IN
ISSUE BY FILING SUIT DOES NOT
CONTRAVENE HIPAA’S
CONFIDENTIALITY REQUIREMENTS.
¶9 Holmes argues that the trial court’s order
allowing ex parte oral communications with
Elam’s health care providers violates HIPAA’s
confidentiality requirements. Nevertheless,
she recognizes that HIPAA allows the disclosure of protected health information pursuant
to court order.10 Essentially, Holmes contends
that only an order compelling the release of
protected health care information, rather than
an order allowing such release, will satisfy
HIPAA requirements. In contrast, the health
care provider asserts that the order issued is
HIPAA compliant and conforms with this
Court’s holdings in Seaberg v. Lockard, 1990
OK 40, 800 P.2d 230 and Johnson v. District
Court of Oklahoma County, 1987 OK 47, 738
P.2d 151. Here, we address Seaberg and
Johnson only to the extent that they relate to
the issuance of such an order — not as to
whether the order issued conforms in all
respects with these opinions.
779
¶10 a) Federal regulations governing the
imposed by HIPAA clearly anticipate
disclosures of protected health information
pursuant to a court order.
¶11 Congress enacted HIPAA in 1996
entrusting the Secretary of the Department of
Health and Human Services (Secretary) with
the task of the creation of national standards to
ensure the integrity and confidentiality of individually identifiable health information.11
Thereafter, the Secretary promulgated 45
C.F.R. §164.512. Subsection (e) of the regulation
specifically addresses disclosures for judicial
and administrative procedures providing two
situations in which covered entities may
release protected health information:
“. . . (1) Permitted disclosures. A covered
entity may disclose protected health information in the course of any judicial or
administrative proceeding:
(i) In response to an order of a court or
administrative tribunal, provided that the
covered entity discloses only the protected
health information expressly authorized
by such order; or
(ii) In response to a subpoena, discovery
request, or other lawful process . . .”
[Emphasis supplied.]
The clear language of the regulation anticipates not only that there may be disclosures
pursuant to the filing of a lawsuit but that the
disclosures may be allowed where a court
order so provides. Here, the first condition is
met — the court order clearly allows such
disclosures.
¶12 The defendant and the medical provider
argue essentially that, as long as there is an
order signed by a judge, there is no limit on the
scope of disclosure of protected health information under section 19(B) or HIPAA. They
argue that, because the HIPAA regulations
provide for disclosure “in response to an order
of a court” under section 164.512(e)(1)(i), no
restriction on the scope of disclosure applies.
That argument, however, ignores the rest of
the sentence which requires the “covered entity [to disclose] only the protected health information expressly authorized by such order.”12
Clearly a limitation on the scope of permitted
disclosure is imposed. The source of that limitation is the privacy requirements enumerated
at §164.512(e)(1)(ii-vi). The privacy requirements of HIPAA apply whether or not there is
780
court authorization for the disclosure of protected medical information. In other words,
HIPAA does not prohibit ex parte communication through a HIPAA-compliant court authorization. This holding is supported by federal
jurisprudence.
¶13 b) Although there is little federal
jurisprudence on the issue of ex parte
communications under HIPAA, the existing
case law supports a finding that such contact
should be allowed when, as here, a court
order exists allowing the communication.
¶14 Holmes relies on two cases — Law v.
Zuckerman, 307 F.Supp.2d 705 (D.Md. 2004)
and Crenshaw v. MONY Life Ins. Co., 318
F.Supp.2d 1015 (S.D.Cal. 2004) — for the
proposition that ex parte contacts are prohibited under HIPPA and that protected medical
information may only be released pursuant to
formal discovery procedures. The reliance is
misplaced.
¶15 The Law court determined that Maryland law, which did not prohibit ex parte communications between a lawyer and the treating
physician of an adverse party, was not as stringent as HIPAA. Therefore, the federal law was
found to preempt the Maryland statute. Nevertheless, the federal court recognized that disclosures should be allowed when strict compliance with HIPAA occurred. Finally, the Law
court determined that: 1) defense counsel had
exercised reasonable diligence in attempting to
guarantee that physician contacts did not violate HIPAA; 2) the Secretary-promulgated
rules restrict the ability of health care
providers to divulge patient medical records
without express consent of the patient or pursuant to a court order; and 3) a court order
allowing either party to speak with the plaintiff’s physician about issues set forth in the
party’s medical records effectively remedied
any potential HIPAA violation.
¶16 In Crenshaw, the court held that defense
counsel’s ex parte communications with the
opposing party’s personal physicians fell
beyond HIPAA’s requirement that confidential
medical information be disclosed pursuant to a
court order, subpoena or discovery request.
The federal court’s determination rested on a
finding that all such disclosures must be
accompanied by assurances to the healthcare
provider that reasonable efforts had been
made by the party to secure a qualified
protective order. Because no protective order
had issued, the Crenshaw Court determined
Vol. 78 — No. 10 — 3/24/2007
that HIPAA’s disclosure requirements were
violated.
¶17 Both Law and Crenshaw were analyzed
in Bayne v. Provost, 359 F.Supp.2d 234, 329
(N.D.N.Y. 2005). The federal court determined
that the true import of the two causes was that
there is no bright line HIPAA rule barring all
ex parte discussions. Rather, that such contacts
are appropriate once the protections required
by HIPAA are met.13 The New York Court recognized three instances in which oral communications were appropriate: 1) where, as here,
discovery requests are accompanied by a
court order; 2) when a medical provider
receives satisfactory assurances that proper
notice has been given to the protected person;
or 3) when the party attempting to secure the
health information has secured a qualified protective order either by agreement or court
involvement.
¶18 c) A court order allowing, rather than
mandating, disclosure of protected
healthcare information through ex parte
communications conforms with the preHIPAA determinations in Seaberg v.
Lockard and Johnson v. District Court of
Oklahoma County holding that where there
has been a waiver of the physician/patient
privilege pursuant to 76 O.S. Supp. 2005 §19,
judicial authority may not be utilized to
facilitate or to impede ex parte
communications with a plaintiff’s health
care providers.
¶19 Our analysis here is limited to the issue
of whether ex parte communications are
allowed under Oklahoma jurisprudence. Johnson v. District Court of Oklahoma County,
1987 OK 47, 738 P.2d 151 involved a medical
malpractice action. The trial court issued an
order finding the privilege involving protected
healthcare information waived and requiring
discovery by ex parte communication. The
Johnson Court issued a writ of prohibition to
prevent enforcement of the order. The Court
held that it was beyond the district court’s
authority to compel discovery by ex parte
communication.
¶20 Following the teachings of Johnson, the
memorandum opinion in Seaberg v. Lockard,
1990 OK 40, 800 P.2d 230 held that §19’s14 waiver of the physician/patient privilege in a personal injury action did not authorize the district court’s pretrial declaration that no privilege existed. Although the Seaberg Court
determined that the law sanctioned voluntary
ex parte communications with physicians and
Vol. 78 — No. 10 — 3/24/2007
other healthcare providers where no legal
privilege existed, it held that judicial authority
could not be exercised to facilitate or to impede
such informal communications.
¶21 THE ORDER PRESENTED IS OVERLY
BROAD. IT DOES NOT CONFORM WITH
THE STATUTORY REQUIREMENTS OF 76
O.S. Supp. 2005 §19 AND 12 O.S. Supp. 2004
§2503(D)(3) NOR DOES IT ADEQUATELY
ADVISE PHYSICIANS THAT THEY MAY
NOT BE COMPELLED TO PARTICIPATE
IN EX PARTE COMMUNICATIONS.
¶22 While we agree with the health care
providers that a court order permitting, rather
than mandating, oral communication with
health care providers entered as a result of an
individual clearly placing mental or physical
conditions in issue by filing suit does not contravene HIPAA’s confidentiality requirements,
we must now determine whether the order
presented conforms with the statutory requirements of 76 O.S. Supp. 2005 §1915 and 12 O.S.
Supp. 2004 §2503(D)(3).16 Furthermore, we
examine the order’s language in light of the
risks physicians face when disclosing protected health care information.
¶23 a) The court order does not conform
with the statutory requirements of 76 O.S.
Supp. 2005 §19 and 12 O.S. Supp. 2004
§2503(D)(3) precluding general disclosure of
all of a party’s medical records and
restricting discovery to materials relevant to
any issue in the malpractice action or to the
injury or death in litigation.
¶24 We have determined that 45 C.F.R.
§164.512 clearly anticipates the issuance of
court orders allowing ex parte communications
with physicians. The same regulation limits
the information to be disclosed to that
“expressly authorized by such order.”17 Here,
the order allows access inclusive of, but not
limited to, “all examinations, treatment, radiographic imagining films, emergency room
records, outpatient records, hospital charts,
billing statements, or results of any diagnostic
study” and to “any record of any health care
providers care and treatment of Teresa Lee
Elam.”18 [Emphasis supplied.] The permitted
disclosure is too broad.
¶25 Information which may be released once
a party places its medical condition in issue is
limited by 76 O.S. Supp. 2005 §19 and 12 O.S.
Supp. 2004 §2503(D)(3) along with causes
interpreting the statutory scheme. Our
jurisprudence makes it clear that these
781
statutes preclude the general disclosure of all
of a party’s medical records and restrict discovery to materials relevant to any issue in
the malpractice action or to the injury or
death in litigation.
¶26 We consider the limitations placed on ex
parte communications under the same causes
which anticipate such disclosures. Johnson v.
District Court, 1987 OK 47, ¶4, 738 P.21d 151
provides that “[t]he scope of discovery under
section 19(B) includes any material relevant to
any issue in the malpractice action.” Seaberg v.
Lockard, 1990 OK 40, ¶3, 800 P.2d 230 reaffirmed Johnson, holding that “[a]lthough the
law sanctions voluntary ex parte communications
with physicians and other health providers
where no legal privilege is deemed to exist,
judicial authority may not be exercised to facilitate
or impede such information communications.”
[Emphasis in original.] Seaberg went on to
explain that the waiver of privilege in section
19(B) “is to be viewed as self-executing” and
that section 19(B) “does not contemplate a
judicial order directing or authorizing physicians or other health care providers to make
themselves available for ex parte interviews by
the legal representatives of a defendant.” Further, the Seaberg Court recognized that the
waiver of patient privilege found in section
19(B) “is imposed by force of law and stands
restricted to the injury or death in litigation.”
¶27 In Higgenbotham v. Jackson, 1994 OK 8,
¶1, 869 P.2d 319, we recognized that no statutory discovery method required a plaintiff in a
personal injury lawsuit to execute, in favor of
the defendant, a general medical authorization
entitling the defendant to obtain all of the
plaintiff’s medical records. In considering the
breadth of §2503(D)(3), the Court stated “12
O.S. §2503(D)(3) qualifies the physician/
patient privilege ‘to the extent that an adverse
party in said proceeding may obtain relevant
information regarding said condition by statutory discovery.’” Higgenbotham conforms
with the teachings of Johnson that “[t]he scope
of discovery under section 2503(D)(3) is limited to the issue of the condition raised as an element of the claim or defense.”
¶28 The challenged order is deficient under
both 76 O.S. Supp. 2005 §1919 and 12 O.S. Supp.
2004 §2503(D)(3).20 It places no limit on the
scope of the medical information to be disclosed. It is not confined to “material relevant
to any issue in the malpractice action” as
required by Johnson, nor is it “restricted to the
injury or death in litigation” as required by
782
Seaberg. Furthermore, it is too broad under
Higgenbotham, allowing the health care
providers access to “any record of any health
care providers care and treatment of Teresa Lee
Elam”21 rather than limiting it to the condition
alleged to have caused the patient’s injury and
resulting death.
¶29 b) An order allowing ex parte physician
communications should clearly provide that
no physician may be compelled to
participate in oral ex parte communications.
¶30 Pursuant to 42 U.S.C. §1320d-6 a physician disclosing protected health care information under HIPAA is subject to severe penalties
ranging from $50,000 to $250,000 in fines
and/or imprisonment running from less than
a year to a maximum of not more than 10
years.22 In light of the exposure, any physician
should be advised by the Court’s order
allowing ex parte communication that such
correspondence is “purely voluntary and may
not be compelled by any party.” Although the
order here contains permissive language
regarding any physician’s participation,
it does not clearly delineate that such
communications may not be compelled.
CONCLUSION
¶31 HIPAA does not expressly bar ex parte
communications but does require certain procedures. One measure by which such information may be sought is pursuant to a court order
specifying the substance of the information to
be released.23 We hold that an order, entered as
a result of an individual placing mental or
physical conditions in issue by filing suit and
containing clearly permissive language in
relation to ex parte communications, does not
contravene HIPAA’s confidentiality requirements.24 The determination is consistent with:
imposed by HIPAA;25 extant federal jurisprudence; and this Court’s pre-HIPAA determinations in Johnson v. District Court of Oklahoma
County, 1987 OK 47, 738 P.2d 151 and Seaberg
v. Lockard, 1990 OK 40, 800 P.2d 230.
¶32 The language of the challenged order
does not conform with the requirements of 76
O.S. Supp. 2005 §19(B)(1)26 and 12 O.S. Supp.
2004 §2503(D)(3).27 It does not limit disclosure
to a mental or emotional condition of the
patient that is relevant to the claims or defenses asserted in the malpractice action. The order
has the potential to allow defense counsel in
the malpractice action to obtain all medical
and psychological health information of the
Vol. 78 — No. 10 — 3/24/2007
patient, even information that has nothing to
do with the malpractice action. Although the
order contains permissive language regarding
the participation of any physician in ex parte
communications, it does not clearly advise
doctors that such exchanges may not be compelled. Therefore, we assume jurisdiction,
grant the writ and remand the cause for entry
of an order consistent with this opinion.28
ORIGINAL JURISDICTION ASSUMED;
WRIT GRANTED; CAUSE REMANDED.
ALL JUSTICES CONCUR.
1. In an unpublished order, filed on February 27, 2006, we determined that disclosure of protected health care information pursuant to
court order was permissible under HIPAA. The order in #102,964
Huffman v. Honorable Ronald Shaffer, provides in pertinent part:
“. . . An order requiring the real party in interest to execute an
authorization for the release or disclosure of medical ‘information’ — oral or written — would not contravene Seaberg, so long
as voluntary, informal ex parte communication is merely
allowed, not compelled or required. Entities or health care
providers subject to the restrictions of HIPAA may avert violation of the Act by limiting statements, responses, or other forms
of disclosure to individually identifiable health information
encompassed within the §19(B) waiver. . . .”
The vote on the unpublished order appears as: Watt, C.J., Winchester,
V.C.J., Lavender, Hargrave, Kauger, Edmondson, Taylor, Colbert, JJ.,
concur. Opala, J., concurs in result.
2. Although we have chosen to refer to the act in its shorthand
from as “HIPAA,” we note that legal research reveals that the Act has
been referred to by other courts as “HIPPA” and “HIPA” and that, in
common parlance, the most prevalent reference appears to be to
“HIPPA” — especially in the examination of patient rights’ forms
which also reveal the same inconsistencies.
3. Interim appears to argue that original jurisdiction should be
assumed only when an abuse of discretion has occurred requiring this
Court’s intervention through issuance of a writ. The assertion is not
consistent with our jurisprudence. Ward Petroleum Corp. v. Stewart,
2003 OK 11, 64 P.3d 1113 [Petition for certiorari recast as petition for
writ of prohibition; original jurisdiction assumed; writ denied.];
Grimes v. City of Oklahoma City, 2002 OK 47, 49 P.3d 719 [Original
jurisdiction assumed; declaratory relief denied; writs of mandamus
and prohibition denied.]; World Pub. Co. v. Miller, 2001 OK 49, 32 P.3d
829 [Writ denied.]. Furthermore, we may assume original jurisdiction
to address issues in discovery matters which are primarily those of
first impression. Heffron v. District Court of Oklahoma County, 2003
OK 75, ¶4, 77 P.3d 1069; St. Clair v. Hatch, 2002 OK 101, ¶1, 62 P.3d 382.
4. Title 76 O.S. Supp. 2005 §19(B)(1) providing:
“In cases involving a claim for personal injury or death against
any practitioner of the healing arts or a licensed hospital, or a
nursing facility or nursing home licensed pursuant to Section 11903 of Title 63 of the Oklahoma Statutes arising out of patient
care, where any person has placed the physical or mental condition of that person or deceased person by or through whom the
person rightfully claims, that person shall be deemed to waive
any privilege granted by law concerning any communication
made to a physician or health care provider with reference to
any physical or mental condition or any knowledge obtained by
the physician or health care provider by personal examination of
the patient; provided that, before any communication, medical
or hospital record, or testimony is admitted in evidence in any
proceeding, it must be material and relevant to an issue therein,
according to existing rules of evidence. Psychological, psychiatric, mental health and substance abuse treatment records and
information from psychological, psychiatric, mental health and
substance abuse treatment practitioners may only be obtained
provided the requirements of Section 1-109 of Title 43A of the
Oklahoma Statutes are met.”
No issue of waiver of the privilege exists here as the treatment
received by Elam is the basis of the negligence claim. Because the
waiver provision is substantially similar to the statutory language considered in Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230 and Johnson v.
District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151, reference is to the current statute.
5. 45 C.F.R. §164.512(e)(1) providing in pertinent part:
Vol. 78 — No. 10 — 3/24/2007
“Standard. Disclosures for judicial and administrative proceedings.
(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal,
provided that the covered entity discloses only the protected
health information expressly authorized by such order . . .”
[Emphasis provided.]
6. Bayne v. Provost, 359 F.Supp.2d 234, 240 (N.D.N.Y. 2005) [Allowing ex parte communications with health care providers when “court
order” exception to HIPAA was present.]. See also, In re Vioxx Products Liability Litigation, 230 F.D.R. 473, 477 (E.D. La. 2005), modified on
other grounds, 2005 WL 2036797 (E.D.La. 2005) [Just option in the case
was to protect the relationship between a doctor and patient by
restricting defendants from conducting ex parte communications with
plaintiffs’ treating physicians but allowing plaintiffs’ counsel to
engage in ex parte interviews with those doctors who have not been
named as defendants.]. But see, Crenshaw v. MONY Life Ins. Co. 318
F.Supp.2d 1015, 1028 (S.D.Cal. 2004) [Providing that HIPAA does not
authorize ex parte contacts with healthcare providers.]; Law v. Zuckerman, 307 F.Supp.2d 705, 712 (D.Md. 2004) [Although defense counsel’s
pre-trial contacts with physician violated HIPAA, remedy of precluding defense counsel from having any further ex parte communications
with physician was not warranted.]. See also, discussion of additional
case law in footnote 13, infra.
7. Title 76 O.S. Supp. 2005 §19, see note 4, supra.
8. Title 12 O.S. Supp. 2004 §2503(D)(3) providing in pertinent part:
“The privilege under this Code as to a communication relevant
to the physical, mental or emotional condition of the patient in
any proceeding in which the patient relies upon that condition
as an element of the patient’s claim or defense or, after the
patient’s death, in any proceeding in which any party relies
upon the condition as an element of the party’s claim or defense
is qualified to the extent that an adverse party in the proceeding
may obtain relevant information regarding the condition by
statutory discovery . . .”
9. The trial court’s order, filed on July 5, 2006, providing in pertinent part:
“. . . ORDER AUTHORIZING RELEASE OF PROTECTED
HEALTH INFORMATION
This matter comes before this Court for determination on the
27th day of June, 2006, on the Motion of Defendant, St. John
Medical Center, Inc., for Order Directing Release of Protected
Health Information. Having reviewed the pleadings of the parties, the Court finds that the Plaintiff has placed the physical
condition of Teresa Lee Elam in issue by the filing of this litigation and has waived any privilege granted by law concerning
any communication made to a physician or other health care
provider with reference to the physical condition or any knowledge obtained by the physician or health care provider by personal examination of Teresa Lee Elam.
Accordingly, pursuant to 76 O.S. §19(B), 12 O.S.
§2503(D)(3), and 45 C.F.R. §164.512(e)(1)(i) of the Health Insurance Portability and Accountability Act (“HIPAA”), the Court
FINDS and it is hereby ORDERED, ADJUDGED, AND
DECREED by the Court as follows:
1. Health care providers of Teresa Lee Elam, (i.e., ‘covered entities’), are authorized to disclose ‘protected health information’
(P.H.I.) which includes documentation related to hospitalizations including but not limited to all examinations, treatment,
radiographic imaging films, emergency room records, outpatient records, hospital charts, billing statements, or results of any
diagnostic study and any other materials pertinent to Ms. Elam’s
medical condition;
2. Health care providers of Teresa Lee Elam are authorized to testify in jury trial, depositions, and before this Court about information contained in any record of any health care providers care
and treatment of Teresa Lee Elam;
3. Health care providers of Teresa Lee Elam are authorized to
orally communicate and to discuss such ‘protected health information’ if they choose with the parties’ attorneys of record in
this action; and
4. All medical records obtained pursuant to this Order shall be
made available and provided to all parties of this litigation. Further, the parties and their counsel may discuss with each other
any protected health information of Teresa Lee Elam.
IT IS SO ORDERED this 27th day of June, 2006. . . .”
10. Holmes’ brief in support of application to assume original
jurisdiction and petition for writ of mandamus providing in pertinent
part at p. 9:
“. . . Section 164.512(e) sets for [sic] the standards for disclosures
for judicial and administrative proceedings. Since the case below
is a judicial proceeding, it appears that this subpart would apply
783
here. Section 164.512(e)(1) deals with permitted disclosures and
states:
A covered entity may disclose protected health information in
the course of any judicial or administrative proceeding . . . in
response to an order of a court . . . or . . . in response to a subpoena, discovery request or other lawful process . . . if [either the
other side has been given notice of the request or there is a qualified protective order in place]. . . .”
Admissions in a brief may be considered as a supplement to the appellate record. McClure v. ConocoPhillips Co., 2006 OK 42, ¶7, 142 P.3d
390; King v. King, 2005 OK 4, ¶16, 107 P.3d 570; Keating v. Edmondson,
2001 OK 110, ¶9, 37 P.3d 882.
11. See generally, 42 U.S.C. §13200-2. See also, Smith v. American
Home Products Corp., note 23, infra.
12. The entire text of the provision permits disclosures in the
course of any judicial proceeding:: “(1) in response to an order of a
court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by
such order.” See, 45 C.F.R. §164.512(e)(1), note 5, supra.
13. The court noted in Bayne v. Provost, see note 6, supra, promulgated less than a year ago, that there was a paucity of law to assist on
the analysis of whether ex parte communications are allowed under
HIPAA. Prior to Bayne’s determination, two unpublished decisions
had been promulgated which were contrary to the New York Court’s
decision in Bayne: In re Vioxx Products Liability Litigation, 2005 WL
2036797 (E.D.La. 2005) and EEOC v. Boston Market Corp., 2004 WL
3327264 (E.D.N.Y. 2004). The jurisprudential landscape has changed
little since last January. The one published opinion since that time provides that because HIPAA does not directly address ex parte communications, they may be allowed under state law. Smith v. American
Home Products Corp., see note 23, infra. In an unpublished opinion in
Hulse v. Suburban Mobile Home Supply Co., 2006 WL 2927519
(D.Kan. 2006), the Kansas Federal Court determined that where there
was a request for a court order allowing the production of medical
information and ex parte contact all the requirements of HIPAA had
been met. See also, In re Vioxx Products Liability Litigation, note 6,
supra.
15. Id.
16. Title 12 O.S. Supp. 2004 §2503(D)(E), see note 8, supra.
17. 45 C.F.R. §164.512, see note 5, supra.
18. The trial court’s order, filed on July 5, 2006, see note 9, supra.
20. Title 12 O.S. Supp. 2004 §2503(D)(3), see note 8, supra.
22. Title 42 U.S.C. §1329d-6(b) provides:
“Penalties
A person described in subsection (a) of this section shall —
(1) be fined not more than $50,000, imprisoned not more than 1
year, or both;
(2) if the offense is committed under false pretenses, be fined not
more than $100,000, imprisoned not more than 5 years, or both;
and
(3) if the offense is committed with intent to sell, transfer, or use
individually identifiable health information for commercial
advantage, personal gain, or malicious harm, be fined not more
than $250,000, imprisoned not more than 10 years, or both.”
23. Smith v. American Home Products Corp., 372 N.J.Super. 105,
855 A.2d 608, 621 (2003).
25. 45 CF.R. §164.512(e)(1), see note 5, supra.
26. Title 75 O.S. Supp. 2005 §19(B)(1), see note 4, supra.
27. Title 12 O.S. Supp. 2004 §2503(D)(3), see note 8, supra.
28. In reaching our decision today, we consider federal precedent.
Nevertheless, our determination rests squarely within Oklahoma law
which provides bona fide, separate, adequate and independent
grounds for our decision. Michigan v. Long, 463 U.S. 1032, 103 S.Ct.
3469, 3476, 77 L.Ed.2d 1201 (1983).
cuting.1 For its effectiveness neither requires or
depends on an antecedent judicial declaration.2
¶2 When the privilege is believed no longer
to obtain, ex parte communications with a medical provider of the opposing party will be neither judicially impeded nor compelled. A court
order that allows or authorizes but does not
require oral communications with the opposite party’s health care providers is not impermissible, but its terms must be confined to a
patient’s mental or emotional condition that is
relevant to the claims or defenses which are at
issue in the action.
¶3 Allowing the judiciary to be cast into a
more extensive role in the process of voluntary
ex parte negotiations for access to information
would indeed be damaging to its constitutioncommanded posture of absolute detachment
and neutrality. We are clearly duty-bound to
protect judges from the brink of exposure to a
grave threat to both their image as well as to
the reality of their law-exacted impartiality. If
voluntary negotiations for securing the nolonger-protected disclosure should fail, the
party seeking the information’s release is
eo instante relegated by law to the process of
discovery.3
OPALA, J., with whom WINCHESTER, C.J.,
and TAYLOR, J., join, concurring
¶4 Ground rules for ex parte communications
about and disclosures of unprivileged health
information are long overdue. Appellate crafting of legal norms for this litigation-related
activity must follow the pattern of other
jurisprudence. Litigants and health care
providers should tender to the trial court specific issues appropriate to the controversy
before it. Appellate courts’ norm-making will
concern itself primarily with conformity of
ground rules to be established to the requirements of due process that must assure the
adversary parties as well as the health-care
providers of optimum fundamental protection
and fairness. Judges shall abstain from giving
off-the-record advice to the parties or to nonparty actors. In short, ex parte communications
about and disclosures of unprivileged health
information shall be subjected to trial-court
regulation whenever problems are properly
called to judicial attention.
¶1 A privilege that protects one’s health
information from being disclosed may be
waived or lost by operation of law. Persons
whose lawsuit places in issue their physical or
mental condition relinquish pro tanto the privilege of nondisclosure. As the privilege itself,
so also its waiver is law-imposed and self-exe-
¶5 The court correctly concludes today that
(1) Oklahoma jurisprudence is not inconsistent
with “the procedural requirements and safeguards imposed by HIPAA” — the Health
Insurance Portability and Accountability Act,
42 U.S.C.§1320(d) et seq; (2) the order is deficient because it does not restrict the disclosure
784
Vol. 78 — No. 10 — 3/24/2007
to be obtained to the patient’s mental or emotional condition that is relevant to the claims or
defenses which are at issue in the action; and
(3) the order does not clearly advise the physicians that informal health information
exchanges may not be compelled.
¶6 I hence concur in granting petitioner’s
quest for a writ of prohibition that should cure
the defects presently in the order.
1. Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230, 231-232; Robinson v.
Lane, 1971 OK 9, 480 P.2d 620, 621-22, see also Brandt v. Medical Defense
Associates, 856 S.W.2d 667, 669-670 (Mo.1993); Vredeveld v. Clark, 504 N.
W.2d 292, 300 (Neb.1993) (“Courts have generally held that filing a
personal injury claim waives the physician-patient privilege as to
information concerning the health and medical history relevant to
matters which plaintiff has placed at issue”).
2. Seaberg v. Lockard, supra note 1.
3. 76 O.S. Supp 2005 §19(B)(1); Seaberg v. Lockard, supra note 1; Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151.
COLBERT,J., concurring
¶1 Today this Court examines the effect of
HIPAA on the pre-discovery practice of informal ex parte communication between a plaintiff’s medical provider and defense counsel in
a medical malpractice action. I concur in the
Court’s determination that HIPAA does not
prohibit court authorization of that practice
provided that the court order limits the scope
of such disclosure pursuant to section 19(B)
and section 2505(D)(3), and further that it complies with the privacy limitations imposed by
HIPAA. I write separately to further explain
the historical and jurisprudential context of
today’s decision.
SECTION 19(B) AND PRE-HIPAA
DECISIONS
¶2 Before the HIPAA privacy regulations
were enacted in 2003, this Court unquestionably permitted the practice of ex parte communication pursuant to section 19(B). Two decisions described the method and circumscribed
the scope of that practice: Johnson v. District
Court, 1987 OK 47, 738 P.2d 151, and Seaberg v.
Lockard, 1990 OK 40, 800 P.2d 230.
¶3 Johnson and Seaberg describe an informal
method of pre-discovery. Those decisions view
section 19(B) as a self-executing waiver of privilege limited to the issues and injury involved
in the malpractice action. If this Court were to
validate the challenged order, it would dramatically expand the scope of section 19(B)’s
self-executing waiver of privilege to all protected health information. Such an unbounded
order would result in unlimited ex parte communication by court order contrary to the limitations on the scope of the section 19(B) waivVol. 78 — No. 10 — 3/24/2007
er of privilege articulated in Johnson and
Seaberg. The fact that the waiver is self-executing does not justify a determination that its
scope is unlimited.
¶4 It is important to note that the medical
provider sought the challenged order only
after Plaintiff refused to execute an unlimited
authorization that did not comply with
HIPAA. The order appears designed to assure
physicians and other health care providers that
they will not violate HIPAA no matter the
method or degree of communication or the
scope of the protected health information they
disclose to counsel. For what other reason,
while in pre-discovery, would a medical
provider seek a court order to authorize the
release of information that is available informally under section 19(B) through ex parte
communication? The challenged order would
not have been presented to the trial court but
for the enactment of the HIPAA regulations
limiting the disclosure of protected health
information.
EFFECT OF HIPAA ON EX PARTE
COMMUNICATIONS
¶5 HIPAA was enacted to, among other
things, “ensure the integrity and confidentiality of [patient] information” 42 U.S.C. §1320d2(d)(2)(A). The Act authorizes the Department
of Health and Human Services to enact regulations to further that goal. In 2003, the privacy
rules became effective, including the litigation
provision found at section 164.512(e). At that
time, Oklahoma was one of only fifteen states
that permitted the practice of informal ex parte
communication between a patient’s medical
provider and opposing counsel in a malpractice action. Daniel M. Roche, Don’t Ask, Don’t
Tell: HIPAA’s Effect on Informal Discovery in
Products Liability and Personal Injury Cases,
2006 B.Y.U.L. Rev. 1075, 1083-84. Twenty-four
states prohibited the practice. Id. Litigation
began immediately in state and federal courts
concerning the effect of HIPAA in that minority of states that permitted the practice.
¶6 In Oklahoma, the Oklahoma State Medical Association and the Oklahoma Hospital
Association made a joint request to the Secretary of the Department of Health and Human
Services for an exception to any preemptive
effect of HIPAA on section 19(B). The Secretary
delegated the decision on such requests to the
Office for Civil Rights. On June 24, 2003, the
Director of that office issued his response to
the request.
785
¶7 The response began by quoting the
exemption request which noted that section
19(B) permits defense counsel in a medical
malpractice action “to gather medical records
and/or conference with willing health care
providers without the necessity of a patient
authorization, subpoena, or court order.” After
analyzing section 19(B) and HIPAA, the
response concluded that there was no preemption issue because “covered entities can comply with both [section] 19(B) and 45 C.F.R.
§164.512(e)(1)(ii)-(vi). It is neither impossible
for a health care provider to comply with both
statutes, nor is complying with the Oklahoma
statute an obstacle to the accomplishment or
execution of the purposes and objectives of
HIPAA.” Thus, no exemption was required
because preemption was not an issue.
of post-HIPAA decisions concerning ex parte
communication.
¶8 Apparently, this was not the answer that
the medical and hospital associations wanted
to hear. Having been told precisely the requirements for limiting ex parte communication in
order to comply with state and federal law,
medical providers and defense counsel began
to request court “authorizations” in an apparent attempt to circumvent those requirements.
These attempts have met with varying degrees
of success as demonstrated by the orders
included in the Appendix to Plaintiff’s Application to Assume Original Jurisdiction and
Petition for Writ of Prohibition. Some Oklahoma judges have imposed limits on the disclosure permitted pursuant to ex parte communication authorizations presented for their
signature and some have not.
¶11 If this Court were to validate a broad
general order like the one challenged in this
action, it would effect a radical change in the
manner in which protected health information
would be obtained. If a malpractice plaintiff
would not sign an authorization that set no
limits on disclosure under state or federal law,
such an authorization would simply be presented for the trial judge’s signature. The same
general order presented in this matter, having
been validated by this Court, would become
the standard order presented for the trial
judge’s signature in all future proceedings. The
disclosure of protected health information
would then take place without the plaintiff’s
knowledge of the event or the knowledge of
which protected health information was disclosed. Irrelevant and potentially embarrassing information would become available to
defense counsel solely for tactical advantage.
Such a result would be contrary to HIPAA’s
strong public policy in favor of protecting
health information from unnecessary
disclosure and it would be contrary to state
and federal law.
¶9 Today this Court rejects the argument that
an authorization signed by a judge need not
comply with the HIPAA privacy requirements
enumerated at section 164.512(e)(1)(ii-vi). The
rejection of that argument is entirely consistent
with the decisions of the state and federal
courts that have examined the effect of HIPAA
on provisions of state law which permit ex
parte communication. Each of these decisions
has either held that HIPAA prohibits such
communication without patient authorization1
or has limited the scope of disclosure by applying the HIPAA privacy requirements in addition to the requirements of state law.2 “[I]n the
time following HIPAA’s passage, no court in
the United States has held that ex parte interviews with a plaintiff’s treating physician are
permitted absent some sort of formal restriction.” Roche, supra, at 1091. Thus, today’s
recognition of the limitations imposed by state
and federal law is well within the mainstream
786
PREVENTION OF UNFAIR TACTICAL
ADVANTAGE
¶10 Proponents of the challenged order
sought to expand completely the scope of permissible disclosure of protected health information. The challenged order would have
allowed defense counsel in a malpractice
action to obtain all medical and psychological
health information of a patient, even information that had nothing to do with the malpractice action. The fact that the irrelevant information may not be admitted at trial would not
remedy the unfair tactical advantage that
access to the information would provide to
defense counsel.
CONCLUSION
¶12 This Court has determined that ex parte
communication remains viable following the
enactment of the HIPAA privacy regulations
provided that the court order which authorizes such communication complies with the
requirements of state law and with HIPAA. By
doing so, this Court has upheld its jurisprudence concerning ex parte communication
while giving effect to the limitations that
HIPAA imposes on the disclosure of protected
health information.
Vol. 78 — No. 10 — 3/24/2007
1. Crenshaw v. MONY Life Ins. Co., 318 F. Supp.2d 1015, 1029 (S.D.
Cal. 2004)(“Only formal discovery requests appear to satisfy the
requirements of §164.512(e).”); Law v. Zuckerman, 307 F. Supp.2d 705,
711 (D. Md. 2004) (“Informal discovery of protected health information is now prohibited unless the patient consents.”); EEOC v. Boston
Market Corp., 2004 WL 3327264 at *5 (E.D.N.Y. Dec. 16, 2004)(“ex parte
communications regarding the disclosure of health information, while
not expressly prohibited by HIPAA, create . . . too great a risk of running afoul of that statute’s strong federal policy in favor of protecting
the privacy of patient medical records”).
2. Hulse v. Suburban Mobile Home Supply Co., 2006 WL 2927519
at *2 (D. Kan. Oct. 12, 2006)(proposed order granting ex parte interviews with treating physicians “clearly state[s] what medical informa-
tion is covered by the Orders thus allowing any medical providers to
assure themselves that they are in compliance with the HIPAA requirements”); In re Vioxx Prods. Liab. Lit., 2005 WL 2036797 at *4 (E.D. La.
July 22, 2005)(court recognized that it must consider HIPAA in determining whether to allow ex parte communications with medical
providers); Bayne v. Provost, 359 F. Supp.2d 234 (N.D.N.Y. 2005)(qualified protective order entered to make request for ex parte communication comply with HIPAA); Smith v. Am. Home Prods. Corp., 855
A.2d 608, 626 (N.J. Super. Ct. Law Div. 2003)(broad use of informal discovery procedures “must somehow be readjusted to ensure compliance with the federal objectives under HIPAA”).
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Legal Aid Services of Oklahoma, Inc., is seeking a
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serving Oklahoma and Canadian counties. The
managing attorney is responsible for supervision
of attorney and support staff and limited grant
management. Applicants are required to have a
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Vol. 78 — No. 10 — 3/24/2007
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787
OKLAHOMA BAR FOUNDATION
GRANT APPLICATIONS AVAILABLE
OKLAHOMA BAR FOUNDATION
2007 GRANT APPLICATION PACKETS NOW AVAILABLE
The Oklahoma Bar Foundation (OBF) Grants and Awards Committee is accepting
applications from law-related charitable organizations for 2007 grants awards. The deadline
for application submission is Tuesday, July 24, 2007.
The Oklahoma Bar Foundation was founded in 1946 to accomplish the charitable purposes of
lawyers from all across Oklahoma. OBF is a Section 501(c)(3) nonprofit organization and is the
third oldest state bar foundation in the nation. It serves as the charitable arm of the Bar
Association and all licensed lawyers in Oklahoma are members of the Foundation. OBF
works silently behind the scenes for Oklahoma’s children, the poor and our most vulnerable
citizens. OBF is financially able to fulfill its mission of advancing education, citizenship and
justice for all through the generous support of attorneys by charitable donations and
participation in OBF programs such as the Fellows and IOLTA.
Applications are accepted for programs and projects which:
1)
Provide delivery of legal services to the poor and elderly;
2)
Promote quality legal education;
3)
Improve the administration of justice and promote such other programs for the benefit of the public as are specifically approved by the Oklahoma Bar Foundation for
exclusively public purposes.
Grants totaling $464,790 were approved during 2006 by the Oklahoma Bar Foundation Board
of Trustees to:
✦ Provide delivery of civil legal aid services to the poor and elderly throughout
Oklahoma and to improve the administration of justice. Grants totaling $280,000
were awarded to Legal Aid Services of Oklahoma, Inc. and the Oklahoma Indian Legal
Services Low Income Taxpayer Clinic, and $73,900 was awarded for legal aid and
advocacy services for children, the elderly and victims of violence to Tulsa Lawyers
For Children Inc., the Oklahoma Indian Legal Services Inc. Domestic Violence
Division, Oklahoma CASA Association for Children, Oklahoma CAAVA Association
for Vulnerable Adults, and SANE of Southwest Oklahoma.
✦ Fund educational programs in the total amount of $81,500. Awards were made to the
OBA Law-Related Education Teacher’s Summer Workshop, benefiting school children
in grades K through 12; the OBA Young Lawyers Division High School Mock Trial
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Law Resource Center, Inc. In addition, the Foundation awarded $29,390 in
scholarships.
Grant Applications should be postmarked or delivered no later than Tuesday, July 24, 2007
to receive consideration. Applications will be accepted early and early application is
encouraged. Packets may be downloaded from the web page at www.okbar.org/obf or
applications may be requested by writing or calling: Oklahoma Bar Foundation, P O Box
53036, Oklahoma City OK 73152-3036, (405) 416-7070
788
Vol. 78 — No. 10 — 3/24/2007
Court of Criminal Appeals Opinions
2007 OK CR 6
CHARLES MILTON SMITH, SR., and
BONNIE SMITH, Appellants, v. STATE OF
OKLAHOMA, Appellee.
Case Nos. F-2005-785 and F-2005-786.
March 2, 2007
SUMMARY OPINION
C. JOHNSON, VICE-PRESIDING JUDGE:
¶1 Charles Milton Smith, Sr., was charged in
the District Court of Marshall County with the
crimes of Manufacture of a Controlled Dangerous Substance (Methamphetamine) (Count I),
Child Endangerment (Count II) and Possession of a Controlled Dangerous Substance
(Count III) in Case No. CF-2005-16. He was
also charged with the crimes of Driving a
Motor Vehicle While Under the Influence of
Drugs (Count I), Failure to Carry Current
Owner’s Security Verification (Count II), Operating a Vehicle While Driver’s License is Suspended (Count III), Failure to Wear a Seatbelt
(Count IV) and Operating a Vehicle Without
Having Paid Taxes (Count V) in Case No. CM2005-49. The jury found Mr. Smith guilty of all
counts charged in Case No. CF-2005-16 and all
but Count V in Case No. CM-2005-49. In Case
No. CF-2005-16, the jury recommended ten
years imprisonment and a $50,000.00 fine on
Count I, four years imprisonment on Count II
and five years imprisonment on Count III. In
Case No. CM-2005-49, the jury recommended
one year in jail and a fine of $1,000.00 on Count
I, a $100.00 fine on each of Counts II and III,
and a $20.00 fine on Count IV. The Honorable
John H. Scaggs sentenced Mr. Smith in accordance with the jury’s recommendation and
ordered the sentences imposed in Case No. CF2005-16 to be served consecutively.
¶2 Bonnie Smith, was charged in the District
Court of Marshall County, Case No. CF-200515, with Manufacture of a Controlled Dangerous Substance (Methamphetamine) and Child
Endangerment (Count II). The jury found Ms.
Smith guilty of both counts and assessed punishment at ten years imprisonment and a
$50,000 fine on Count I and four year imprisonment on Count II. The Honorable John H.
Scaggs sentenced Ms. Smith in accordance
Vol. 78 — No. 10 — 3/24/2007
with the jury’s recommendation and ordered
the sentences to be served consecutively.
¶3 Appellants Charles Milton Smith, Sr.
and Bonnie Smith were tried in the same
proceeding and have raised identical issues on
appeal. Therefore their appeals have been
consolidated in this single opinion.
¶4 Appellants raise the following propositions of error:
1. The trial court erroneously ruled that
because bond had been posted, Mr. And Ms.
Smith were no longer indigent, thereby
improperly denying them the right to
appointed counsel at their jury trial.
2. The trial court failed to conduct a Faretta v.
California hearing to determine whether Mr.
and Ms. Smith invoked their right to represent themselves at their jury trial.
3. The evidence used in Counts I and II in Mr.
Smith’s case CF-2005-16 and both counts in
Ms. Smith’s case CF-2005-15 should be suppressed because the officers lacked probable
cause to search their residence.
4. Prosecutorial misconduct deprived Mr. and
Ms. Smith of a fair trial and caused the jury
to render an excessive sentence.
5. Mr. and Ms. Smith’s sentences are excessive.
6. The cumulative effect of all the errors
addressed above deprived Mr. and Ms.
Smith of a fair trial.
¶5 After thorough consideration of the
propositions, and the entire record before us
on appeal, including the original record, transcripts, and briefs of the parties, we reverse
and remand for a new trial based upon error
raised in Proposition I.1 In this proposition
Appellants alleged that they were indigent and
unable to hire an attorney and as such, the district court forced them to proceed pro se at their
trial in violation of their Constitutional right to
be represented by counsel.
¶6 The record reflects that Appellants were
both initially found to be indigent and entitled
to court appointed counsel. However, prior to
trial, Mr. Smith’s mother posted bond for both
789
Appellants. Upon the posting of bond,
appointed counsel filed a motion to withdraw.
This motion was granted at an abbreviated
hearing wherein the record indicates no consideration concerning Appellants’ indigent status other than the posting of bond. It is true
that the status of a defendant’s indigency is
subject to change and therefore, continuously
subject to review. See Rule 1.14(A)(2), Rules of
the Oklahoma Court of Criminal Appeals, Title 22,
Ch.18, App. (2007). However, while the posting of bond is a very significant factor to be
considered in determining a defendant’s indigent status, it is not entirely dispositive of the
issue. Matthews v. Price, 83 F.3d 328, 334 (10th
Cir.1996). See also McCraw v. State, 1970 OK CR
155, ¶ 8, 476 P.2d 370, 373. Rather, the posting
of bond by a defendant or by another on behalf
of a defendant creates only a rebuttable presumption that the defendant is not indigent. 22
O.S.Supp.2006, § 1355A(D). In order to insure
that a defendant is not improperly denied
counsel to which he or she is constitutionally
entitled, the district court must make a record
inquiring about the defendant’s financial status and reflecting that the defendant understands that the presumption of non-indigency
created by the posting of bond is rebuttable
and that he or she may still be entitled to court
appointed counsel upon sufficient proof of
indigent status.
¶7 The present case does not reflect that the
district court ever inquired on the record about
the Smiths’ ability to hire an attorney or ever
advised them that the presumption of nonindigency was rebuttable. Rather, it indicates
that they were simply told that because they
had posted bond they were required to hire
their own attorney. It is clear that the appointment of counsel for an indigent defendant is a
fundamental right essential to a fair trial.
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792,
9 L.Ed.2d 799 (1963). As the record before this
Court cannot support a finding that the Smiths
were not denied their constitutional right to
counsel, their judgments and sentences in the
cases at bar must be reversed and remanded
for a new trial.
DECISION
¶8 The Judgment and Sentence of the
district court is REVERSED AND REMANDED FOR A NEW TRIAL. Pursuant
to Rule 3.15, Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch.18, App.
790
(2007), the MANDATE is ORDERED
issued upon the delivery and filing of this
decision.
AN APPEAL FROM THE DISTRICT COURT
OF MARSHALL COUNTY
THE HONORABLE JOHN H. SCAGGS,
DISTRICT JUDGE
Appearances at Trial
Milton Smith, Sr.
Bonnie Smith
Pro Se
Attorney for the Defendants
Paule’ Thrift Haggerty
Assistant District Attorney
Marshall County Courthouse
Madill, OK 73446
Attorney for the State
Appearances on Appeal
Katrina Conrad Legler
Indigent Defense System
P.O. Box 926
Norman, OK 73070
Attorney for the Appellants
W. A. Drew Edmondson
Attorney General of Oklahoma
Theodore M. Peeper
Assistant Attorney General
313 N.E. 21st
Oklahoma City, OK 73105
Attorneys for the State
Opinion by C. Johnson, V.P.J.
Lumpkin, P.J.: Concurs in Results
Chapel, J.: Concurs
A. Johnson, J.: Concurs
Lewis, J.: Concurs
1. Because we are granting relief based upon error raised in Appellants’ first proposition, we need not address the errors raised in the
remaining propositions.
2007 OK CR 7
ROBERT JACK LOOKINGBILL, Appellant,
v. THE STATE OF OKLAHOMA, Appellee.
No. F-2005-1235. March 20, 2007
ACCELERATED DOCKET ORDER
¶1 Appellant, Robert Jack Lookingbill, was
charged by Information in the District Court of
Greer County, Case No. CF-2004-36, with the
following offenses: Count 1, Unlawful Possession of Controlled Drug (Methamphetamine);
Count 2, Unlawful Possession of Marijuana;
Vol. 78 — No. 10 — 3/24/2007
Count 3, Unlawful Possession of Paraphernalia; and Count 4, Transportation of Beer in
Opened Container. A non-jury trial was held
before the Honorable Richard B. Darby, District Judge, upon all four counts.
¶2 At the conclusion of trial, Judge Darby
found Lookingbill guilty of Counts 3 and 4,
and on December 1, 2005, imposed sentence.
On Count 3, Judge Darby sentenced Appellant
to one year in the custody of the Greer County
Sheriff but suspended execution of sentence.
On Count 4, the District Court imposed a fine
of $25.00. In Counts 1 and 2, Judge Darby
found the evidence presented to him at trial
was sufficient to find Lookingbill guilty of a
single count of felony possession of controlled
dangerous substances, but based upon a presentencing report, he deferred imposition of
judgment and sentence for that offense for a
period of five years. The District Court conditioned both its deferred sentencing order and
its order suspending sentence upon written
terms of probation.
I. Procedural Status of this Appeal
¶3 Appellant now appeals from the Judgment and Sentence imposed on Counts 3 and
4, and from the order deferring judgment and
sentence for possession of controlled dangerous substances. The rules of this Court, however, do not specifically recognize an appeal
from an order deferring judgment and sentence when the order is entered following a
trial. See Rule 1.2(D)(5), Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch. 18, App.
(2006) (outlining method of appeal from final
orders deferring judgment and sentence).
¶4 In Gonseth v. State, 1994 OK CR 9, ¶¶ 5-10,
871 P.2d 51, 53-54, this Court held that the right
granted to a defendant by the statute now codified at 22 O.S.2001, § 1051(a), to appeal “from
any judgment against him” extended to a
defendant given a final order deferring judgment and sentence after a plea of guilty or nolo
contendere. For the reasons expressed in Gonseth, we now hold that a right of appeal also
accrues to a defendant who receives a final
order deferring judgment and sentence following a bench trial or a jury verdict. Accordingly,
we allow Lookingbill’s appeal of the order
deferring judgment and sentence.
¶5 Following commencement of his appeal,
Appellant applied for placement upon this
Court’s Accelerated Docket under Section XI,
Vol. 78 — No. 10 — 3/24/2007
of the Court’s Rules.1 Without timely objection
by Appellee, we assigned the case to the Accelerated Docket. At the conclusion of the oral
argument held on September 28, 2006,
the Court took Appellant’s matter under
advisement. We now decide this appeal.
II. Background and Appellant’s Claims of
Error
¶6 The evidence presented below was the
fruit of a driver’s license checkpoint conducted
by Oklahoma Highway Patrol officers in a
rural area of Greer County. Lookingbill claims
the conduct of the checkpoint violated the
Fourth Amendment of the United States Constitution and that the District Court erred in
denying his motion to suppress the evidence
seized.
A. Facts
¶7 On March 6, 2004, Highway Patrol Troopers Shawn Laughlin and Gary Cummins, after
planning the matter over lunch, conducted (in
Laughlin’s words) a “driver’s license safety
checkpoint” in Greer County where northbound Highway 6 meets Highway 283. Laughlin began the operation of the checkpoint about
1:50 P.M. by standing on the dividing line of
the two northbound lanes of Highway 6 and
motioning all approaching traffic to stop.
¶8 Lookingbill’s pickup truck was stopped
early in the process. As Trooper Laughlin
asked Lookingbill for his license and proof of
insurance, he noticed an open twelve-ounce
bottle of beer sitting in plain view “on the
hump in the middle of the vehicle.” Laughlin
asked Lookingbill to pull over to the shoulder
of the roadway.
¶9 He asked Lookingbill to hand him the
bottle and noted that the liquid inside was cold
and smelled like beer. Furthermore, as he was
standing at the truck’s window, he smelled
what he “believed to be burnt marijuana coming from the cab of the pickup.” The trooper
asked Lookingbill to step back to the patrol car.
¶10 As Lookingbill walked to the patrol car,
Laughlin saw him remove a marijuana pipe
from his pants pocket and immediately replace
it. The trooper then placed restraints on Lookingbill and asked him what the item was.
Lookingbill said it was a marijuana pipe.
Laughlin testified that the pipe contained a
residue that smelled like burnt marijuana.
791
¶11 After taking the pipe from Lookingbill’s
pocket and placing him in the patrol car,
Laughlin returned to the pickup truck and
began looking through it. He found a blue
glove under the armrest in the center of the
front seat. Inside the glove was a film canister
wrapped with black electrical tape containing
two baggies, one holding marijuana and the
other methamphetamine. Also inside the glove
was a glass pipe with a white residue. Laughlin believed the pipe had been used to smoke
methamphetamine.
¶12 Laughlin testified that he “advised Mr.
Lookingbill what he was charged with” and
“read him his Miranda rights.” While Lookingbill initially denied owning a blue glove, he
later admitted the drugs and the pipe were his.
He explained that he smoked the methamphetamine to stay awake when driving large
trucks and that he smoked the marijuana on
his way back home.
B. Appellant’s Claims of Error
¶13 Prior to trial Lookingbill filed a motion
to suppress. The motion claimed that all the
evidence against Lookingbill was the result of
his warrantless seizure at a checkpoint stop
that violated the Fourth Amendment. Following an evidentiary hearing, the District Court
denied Lookingbill’s motion. During the subsequent bench trial, Lookingbill renewed his
motion to suppress, and it was again overruled. On appeal, Lookingbill claims these rulings were error and asks that we reverse.2
III. Constitutionality of Vehicle Checkpoints
¶14 A “seizure” occurs within the context of
the Fourth Amendment whenever police
intentionally stop a vehicle at a checkpoint.
Michigan Dep’t of State Police v. Sitz, 496 U.S.
444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed. 2d 412
(1990) (“[A] Fourth Amendment ‘seizure’
occurs when a vehicle is stopped at a checkpoint.”). Because the Fourth Amendment of
the Constitution protects citizens from “unreasonable searches and seizures,” the issue of
whether a lawful seizure occurs at a checkpoint depends upon whether such seizure is
reasonable under the circumstances.
¶15 The United States Supreme Court has
articulated three factors to balance in making
that determination:
The reasonableness of seizures that are
less intrusive than a traditional arrest
792
depends ‘‘on a balance between the public
interest and the individual’s right to personal security free from arbitrary interference by law officers.’’ Consideration of the
constitutionality of such seizures involves
[1] a weighing of the gravity of the public
concerns served by the seizure, [2] the
degree to which the seizure advances the
public interest, and [3] the severity of the
interference with individual liberty.
Brown v. Texas, 443 U.S. 47, 50-51, 99 S.Ct.
2637, 2640, 61 L.Ed. 2d 357 (1979) (citations
omitted).
¶16 In Illinois v. Lidster, 540 U.S. 419, 427, 124
S.Ct. 885, 890, 157 L.Ed. 2d 843 (2004), the
Supreme Court used these three factors to
evaluate the reasonableness of seizures arising
from a highway checkpoint. The Supreme
Court held that “the police [checkpoint] stops
were reasonable, hence, constitutional.” Id. at
421, 124 S.Ct. at 888. In so holding, the
Supreme Court distinguished the checkpoint
operation before it from that disapproved in
City of Indianapolis v. Edmond, 531 U.S. 32, 121
S.Ct. 447, 148 L.Ed. 2d 333 (2000), a decision
holding that checkpoints were unconstitutional if established “primarily for general ‘crime
control’ purposes, i.e., ‘to detect evidence of
ordinary criminal wrongdoing.’’’ Lidster, 540
U.S. at 423, 124 S.Ct. at 888-89 (quoting
Edmond, 531 U.S. at 41, 121 S.Ct. at 454).
¶17 The Edmond decision involved a class
action by motorists challenging the power of
Indianapolis to operate vehicle checkpoints for
the purpose of finding illegal narcotics. In
holding the city’s checkpoint program illegal,
the Supreme Court first observed, “The Fourth
Amendment requires that searches and
seizures be reasonable. A search or seizure is
ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” Edmond,
531 U.S. at 37, 121 S.Ct. at 451.
¶18 The Court acknowledged that there
were recognized exceptions to the “individualized suspicion” requirement, and it noted several of them. Among those exceptions were: (1)
brief, suspicionless seizures of motorists at a
fixed Border Patrol checkpoint designed to
intercept illegal aliens; (2) sobriety checkpoints
aimed at removing drunk drivers from the
road; and (3) checkpoints with the purpose of
verifying drivers’ licenses and vehicle registrations. Id. at 37-38, 121 S.Ct. at 452.
Vol. 78 — No. 10 — 3/24/2007
¶19 Recognizing Delaware v. Prouse, 440 U.S.
648, 663, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979),
as the case lending approval to driver’s license
checkpoints, the Edmond Court said:
In Prouse, we invalidated a discretionary, suspicionless stop for a spot check
of a motorist’s driver’s license and vehicle
registration. The officer’s conduct in that
case was unconstitutional primarily on
account of his exercise of “standardless
and unconstrained discretion.” We
nonetheless acknowledged the States’
“vital interest in ensuring that only those
qualified to do so are permitted to operate
motor vehicles, that these vehicles are fit
for safe operation, and hence that licensing, registration, and vehicle inspection
requirements are being observed.” Accordingly, we suggested that “[q]uestioning of
all oncoming traffic at roadblock-type
stops” would be a lawful means of serving
this interest in highway safety.
We further indicated in Prouse that we
considered the purposes of such a hypothetical roadblock to be distinct from a
general purpose of investigating crime.
The State proffered the additional interests
of “the apprehension of stolen motor vehicles and of drivers under the influence of
alcohol or narcotics” in its effort to justify
the discretionary spot check. We attributed
the entirety of the latter interest to the
State’s interest in roadway safety. We also
noted that the interest in apprehending
stolen vehicles may be partly subsumed by
the interest in roadway safety. We
observed, however, that “[t]he remaining
governmental interest in controlling automobile thefts is not distinguishable from
the general interest in crime control.” Not
only does the common thread of highway
safety thus run through Sitz and Prouse,
but Prouse itself reveals a difference in the
Fourth Amendment significance of highway safety interests and the general interest in crime control.
Edmond, 531 U.S. at 39-40, 121 S.Ct. at 453
(citations omitted).
¶20 The Edmond Court rejected Indianapolis’
argument that its checkpoint program could be
“justified by its lawful secondary purposes of
keeping impaired motorists off the road and
verifying licenses and registrations,” and the
Court found if this were the case, “law enforceVol. 78 — No. 10 — 3/24/2007
ment authorities would be able to establish
checkpoints for virtually any purpose so long
as they also included a license or sobriety
check.” Id. at 46, 121 S.Ct. at 457. For that reason, the Supreme Court found that it must
“examine the available evidence to determine
the primary purpose of the checkpoint
program.”3 Id.
IV. The Record Sufficiently Supports the
District Court’s Decision to Uphold the
Checkpoint in Appellant’s Case
¶21 It is evident from the cases discussed
above that law enforcement officers, operating
within certain parameters, may establish
checkpoints for the purpose of verifying that
drivers are licensed and that they are operating
ostensibly safe vehicles.4 The District Court
concluded that the highway checkpoint
seizure in Appellant’s case was not constitutionally flawed. In reviewing the record, we
find the evidence is sufficient to support that
conclusion.5
¶22 The law enforcement officers in this case
testified that there was a “significant” problem
of unlicensed drivers in Greer County, and this
was their stated purpose for planning the driver’s license checkpoint challenged here. The
State offered proof showing that the officers
chose the site because it was the route most
traveled through Greer County. The checkpoint was in a fixed location, in broad daylight,
and in an open area where the troopers could
be easily seen. The officers planned to stop
every passing car and, if everything was in
order, to detain motorists for less than a
minute.6
¶23 The officers testified that the operation
of this checkpoint was in compliance with
Oklahoma Highway Patrol and Department of
Public Safety policies and procedures for driver’s license and safety checkpoints. Neither
party offered a written copy of these policies
and procedures.
¶24 Under this record, we affirm the trial
court’s overruling of Appellant’s motion to
suppress the State’s evidence. Further to the
extent that State v. Smith7 is inconsistent with
this opinion, it is overruled.
V. Procedural Requirements
¶25 The operation of a vehicle checkpoint
gives law enforcement officers the power to
stop and detain, albeit briefly, a citizen without
793
a warrant and without a reasonable suspicion
of wrongdoing. A careless exercise of that
power comes with great potential for abuse
and even greater potential for the appearance
of abuse from the perspective of the detained
motorist. For that reason a checkpoint must be
planned and carried out within the narrow
constitutional parameters discussed in this
opinion, and it is neither too onerous a burden
on law enforcement nor unreasonable for the
law to require specific showings of fact before
a challenged checkpoint seizure will be
upheld.
¶26 We hold, therefore, that law enforcement
agencies operating checkpoints for constitutionally sanctioned purposes (e.g., to ensure
that drivers are licensed) should have written
standards for the conduct of such operations
and policies in place to ensure compliance
with those standards. In future cases, where
the constitutionality of a checkpoint is challenged by a motion to suppress evidence, the
prosecution will be required to introduce into
evidence the agency guidelines governing the
operation of the checkpoint at issue.
¶27 In order to be constitutional, the operation of a vehicle checkpoint must meet three
overarching standards: (1) the operation must
be rationally related to the stated public purpose; (2) the operation must be carried out in
accordance with agency guidelines limiting
officer discretion and assuring all motorists are
treated equally; and (3) the operation must be
planned and carried out in a manner that minimizes invasion of motorist privacy.
¶28 Specific factors to be considered in determining if those standards are met include: (1)
the stated purpose of the operation; (2) the
approval of superior officers; (3) the degree of
compliance with the established agency standards; (4) the time, location, and duration of
the checkpoint; (5) the steps taken to inform
motorists of the reason for the stop; and (6) the
duration of the individual stop.8
DECISION
¶29 IT IS THEREFORE THE ORDER OF
THIS COURT that the Judgment and Sentences of the Greer County District Court in
Case No. CF-2004-36, convicting Appellant of
Unlawful Possession of Paraphernalia (Count
3) and Transportation of Beer in Opened Container (Count 4), are AFFIRMED.
794
¶30 IT IS THE FURTHER ORDER OF THIS
COURT that the order deferring imposition of
Judgment and Sentence in CF-2004-36 for the
offense of felony possession of controlled dangerous substances is AFFIRMED, PROVIDED
HOWEVER, that the District Court is directed
to correct the journal entry of its deferred sentencing order to reflect the merger of Counts 1
and 2. Pursuant to Rule 3.15 of this Court’s
Rules, MANDATE IS ORDERED ISSUED
upon the filing of this decision.
¶31 IT IS SO ORDERED.
¶32 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 20th day of March,
2007.
/s/ Gary L. Lumpkin,
GARY L. LUMPKIN,
Presiding Judge
Concur in Part/Dissent in
Part
/s/ Charles A. Johnson
CHARLES A. JOHNSON,
Vice Presiding Judge
/s/ Charles S. Chapel,
CHARLES S. CHAPEL,
Judge
/s/ Arlene Johnson
ARLENE JOHNSON,
Judge
/s/ David B. Lewis
DAVID B. LEWIS,
Judge
ATTEST:
/s/Michael S. Richie
Clerk
APPEARANCES AT TRIAL
Francis R. Courbois
120 N. Robinson, 29th Floor
Oklahoma City, Oklahoma 73102
Attorney for Defendant,
Eric G. Yarborough
Assistant District Attorney
Greer County Courthouse
106 E. Jefferson Street
Mangum, Oklahoma 73554
Attorney for State of Oklahoma.
APPEARANCES ON APPEAL
Francis R. Courbois
120 N. Robinson, 29th Floor
Vol. 78 — No. 10 — 3/24/2007
situations where their procedural requirements are not followed or are only partially
followed.
Attorney for Appellant,
W. A. Drew Edmondson,
Attorney General of Oklahoma
Jay Schniederjan
Assistant Attorney General
313 Northeast 21st Street
Attorneys for Appellee.
1. Appellant’s request for placement on the Accelerated Docket
occurred prior to the Court’s April 12, 2006, revision of Rule 11.3(C).
2. Appellant limits his suppression arguments to the validity of the
checkpoint seizure; hence, this Court does not address the propriety of
the search, arrest, or vehicle inventory procedures that occurred subsequent to the checkpoint stop.
3. The Supreme Court noted that “while ‘[s]ubjective intentions
play no role in ordinary, probable-cause Fourth Amendment analysis,’
programmatic purposes may be relevant to the validity of Fourth
Amendment intrusions undertaken pursuant to a general scheme
without individualized suspicion.” Edmond, 531 U.S. at 45-46, 121 S.Ct.
at 456 (citation omitted). Finding that Indianapolis’ checkpoints had
narcotics detection as their admitted primary purpose, the Supreme
Court concluded, “When law enforcement authorities pursue primarily general crime control purposes at checkpoints . . . stops can only be
justified by some quantum of individualized suspicion.” Id. at 47, 121
S.Ct. at 457.
4. Prior to any of the above-cited Supreme Court decisions, our
Court had specifically recognized the legitimacy of what it called
“nonselective wholesale driver’s license and safety check by roadblock,” and it held that “the state has the right to make routine and
reasonable driver’s license checks designed to insure the safety and
welfare of its citizens by assuring that only licensed drivers are on the
highways.” Brantley v. State, 1976 OK CR 82, ¶¶ 2-4, 548 P.2d 675, 67576.
5. When reviewing a trial court’s ruling on a motion to suppress
evidence based on an illegal seizure, “we defer to the trial court’s findings of fact unless they are not supported by competent evidence and
are therefore clearly erroneous,” and “independently review[ ] the trial
court’s legal conclusions based on those facts.” Hallcy v. State, 2007 OK
CR 2, ¶ 5, ___P.3d___.
6. According to Trooper Cummins, their checkpoint plan included
the contingency that if traffic should start to back up, vehicles would
then be waved through so as not to cause any unreasonable delays in
travel. A traffic backup never occurred, however, because Appellant
was one of the first vehicles through the checkpoint, resulting in the
checkpoint being promptly disbanded once Trooper Laughlin arrested
Appellant and transported him to jail.
7. 1984 OK CR 13, 674 P.2d 562.
8. In providing specific guidelines governing the structure and
operation of checkpoints, we join other state courts which have done
the same. E.g., LaFontaine v. State, 497 S.E.2d 367, 369 (Ga. 1998); State
v. Deskins, 673 P.2d 1174, 1185 (Kan. 1983); Commonwealth v. Buchanan,
122 S.W.3d 565, 570-71 (Ky. 2003); City of Las Cruces v. Betancourt, 735
P.2d 1161, 1164-65 (N.M. Ct. App. 1987).
LUMPKIN, PRESIDING JUDGE: CONCUR
IN PART/DISSENT IN PART:
¶1 I concur with the Court’s decision affirming the validity of the drivers license checkpoint in this case, together with the judgment
and sentence rendered. However, I cannot join
in the adoption of the procedural requirements
set forth in Section V. The “requirements” set
forth by this Court have nothing to do with the
adjudication of the judgment and sentence in
this case. There is absolutely no evidence in
this record, or for that matter, in any other case
presented to this Court, that the procedures
sought to be adopted are necessary. Further,
this Court has not provided a remedy for those
Vol. 78 — No. 10 — 3/24/2007
¶2 The Court’s attempt to tell law enforcement agencies how to operate checkpoints is
only dicta, which renders this opinion merely
an advisory opinion. This Court has consistently held that it does not issue advisory opinions. See Murphy v. State, 2006 OK CR 3, ¶ 1,
127 P.3d 1158 (“This Court does not issue advisory opinions”); Canady v. Reynolds, 1994 OK
CR 54, ¶ 9, 880 P.2d 391, 394; (“this Court cannot otherwise issue advisory opinions”); Matter of L.N., 1980 OK CR 72, ¶ 4, 617 P.2d 239, 240
(“An advisory opinion does not fall within the
Court’s original or statutory jurisdiction; neither does it come within its appellate review.
To offer advice in the form of an opinion
would be to interfere with the responsibility of
the trial court to exercise the powers confided
to it”).
¶3 This Court’s action in this case does not
adhere to the concept of the Rule of Law but is
more of a legislative action than a judicial
action. Policy decisions are for legislatures, not
courts. All this decision reflects is appellate
judges pontificating on what they would like
to have law enforcement do in checkpoint situations. It is also another attempt by the Court
to create precedent based, not on the law as
adjudicated in a case, but upon dicta in a
single opinion. For those reasons, I dissent to
the adoption of any type of “procedural
requirements”.
2007 OK CR 8
CARL DON MYERS, Appellant, v. STATE
OF OKLAHOMA, Appellee.
No. M-2006-42. March 8, 2007
SUMMARY OPINION
LEWIS, JUDGE:
¶1 Appellant was cited for two counts of
Direct Contempt of Court during the trial of a
co-defendant in Case No. CF-2004-1564 in the
District Court of Oklahoma County. The Honorable Susan P. Caswell, District Judge, sentenced Appellant to six months in the Oklahoma County Jail on each count. Appellant
appeals from the contempt citations.
¶2 On appeal, Appellant raises the following
propositions of error:
1. The District Court erred in finding that
Mr. Myers no longer possessed the priv-
795
ilege to avoid self-incrimination by
invoking his United States and Oklahoma constitutional rights, and thus further erred by finding Mr. Myers in direct
contempt of court when he refused to be
compelled to answer incriminatory
questions.
2. The District Court erred in convicting
Mr. Myers of more than one count of
contempt of court.
¶3 Appellant’s first proposition of error
requires that the two contempt citations be
reversed, and the matter remanded to the District Court with instructions to dismiss. The
District Court found Appellant had waived the
right to assert, during the trial of his co-defendant, the privilege against self-incrimination
because he had previously testified at his own
trial on the same charges. The District Court
primarily relied on Trusty v. State, 1972 OK CR
237, 501 P.2d 1142, to support its decision.
¶4 It is settled law that even if an accused
waives his privilege against self-incrimination
by voluntarily testifying at his own trial, the
waiver is limited to the particular proceeding
in which he volunteers the testimony. 8 Wigmore, Evidence § 2276(4), p. 470-72
(McNaughton Rev. 1961); see e.g. Martin v.
Flanagan, 789 A.2d 979, 984-85 (Conn. 2002).
Moreover, the weight of authority permits a
witness whose conviction has not been finalized on direct appeal to invoke the privilege
against self-incrimination and to refuse to give
any testimony whatever in regard to the subject matter which formed the basis of his conviction. Wigmore, supra; Martin, 789 A.2d at 984
n.4. We decline the State’s invitation to reject
such settled law and weight of authority. In
accordance with this law, Trusty must be read
as holding the guilty plea conviction of the
witness had become final.
¶5 In this case, the questions Appellant
refused to answer related to the subject matter
which formed the basis of his own conviction.
Id. Moreover, Appellant’s conviction had not
become finalized on appeal. Id. Therefore, the
District Court erred in finding Appellant had
waived the right to invoke the privilege
against self-incrimination during the trial of
his co-defendant.
¶6 Because we find merit with Appellant’s
first proposition, the second proposition will
not be addressed.
796
DECISION
¶7 Appellant’s citations for two counts of
Direct Contempt of Court, imposed during the
trial of a co-defendant in Case No. CF-20041564 in the District Court of Oklahoma County, are REVERSED and REMANDED to the
District Court with instructions to dismiss.
Pursuant to Rule 3.15, Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch.18,
App. (2007), the MANDATE is ORDERED
issued upon the filing of this decision.
OF OKLAHOMA COUNTY
THE HONORABLE SUSAN P. CASWELL,
DISTRICT JUDGE
Ricki J. Walterscheid, Kimberly Heinze, Katrina Conrad-Legler, Oklahoma Indigent Defense
System, 1070 Griffin Drive, Norman, OK
73070-0926, Counsel For Appellant,
Cassandra Williams, Dan Gridley, Assistant
District Attorneys, 320 Robert S. Kerr, Oklahoma City, OK 73102.
Ricki J. Walterscheid, P.O. Box 926, Norman,
Oklahoma 73070, Counsel For Appellant,
W.A. Drew Edmondson, Attorney General of
Oklahoma, Jennifer L. Strickland, Assistant
Attorney General, 313 N.E. 21st Street, Oklahoma City, OK 73015, Counsel For The State.
OPINION BY: LEWIS, J.
LUMPKIN, P.J.: Concurs in Results
C. JOHNSON, V.P.J.: Concurs
CHAPEL, J.: Concurs
A. JOHNSON, J.: Concurs
IN RESULT
¶1 I concur in the results reached by the
Court and agree that this Court’s decision in
Trusty v. State, 1972 OK CR 237, 501 P.2d 1142,
is not applicable to the facts of this case. In
Trusty the defendant entered a plea of guilty to
the charges and his conviction was final. In this
case, Appellant entered a plea of not guilty,
was convicted by a jury of the charge, and the
conviction was pending on appeal, i.e not
final.
¶2 My concern with the Court’s decision is
when the opinion says “[i]t is settled law” that
Vol. 78 — No. 10 — 3/24/2007
the waiver of privilege against self-incrimination by voluntarily testifying in his own trial is
limited to the proceeding where the person testifies, and then can only cite to a hornbook and
a Connecticut case as authority. If it is in fact
“settled law”, then the Court should be able to
cite to cases from this Court and the U.S.
Supreme Court as authority. Regardless, I
agree with the principle of law enunciated by
the Court in this case.
2007 OK CR 9
PHILLIP DEAN HANCOCK, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. D-2004-1097. March 9, 2007
OPINION
LEWIS, JUDGE:
¶1 Phillip Dean Hancock, Appellant, was
tried by jury and found guilty of murder in the
first degree, in violation of 21 O.S.2001,
§701.7(A) (Counts 1 and 2); and possession of a
firearm after former conviction of a felony, in
violation of 21 O.S.2001, §1283 (Count 4), in
Oklahoma County District Court, Case No.
CF-2002-3562. The jury acquitted Appellant of
feloniously pointing a firearm (Count 3).
Retained defense counsel represented
Appellant in the District Court.
¶2 The State of Oklahoma alleged that both
murders involved four statutory aggravating
circumstances: Appellant was previously convicted of a felony involving the use or threat of
violence to the person; Appellant knowingly
created a great risk of death to more than one
person; the murders were especially heinous,
atrocious, or cruel; and the existence of a probability that Appellant would commit criminal
acts of violence that would constitute a continuing threat to society. 21 O.S.2001, §701.12(1),
(2), (4), and (7). The jury found the existence of
all four aggravating circumstances in both
murders and sentenced Appellant to death in
Counts 1 and 2 and ten (10) years imprisonment in Count 4. The Honorable Susan P.
Caswell, District Judge, presided over the trial
and pronounced the judgment and sentence of
the District Court on October 25, 2004. This
Court stayed execution of the judgment and
sentence on October 28, 2004. Mr. Hancock
appeals.
I. FACTS OF THE OFFENSES.
A. Background.
Vol. 78 — No. 10 — 3/24/2007
¶3 Robert Lee Jett, Jr., died in his own back
yard around midnight on the morning of April
27, 2001. He was 37 years old. Police responded to the scene on a neighbor’s 911 report of
shots fired. Officers found Jett lying on the
ground moaning loudly, unable to tell them
what had happened. Inside Jett’s home, police
found James Vincent “J.V.” Lynch, 57, shot
dead on the floor. The residence was cluttered
with boxes and debris, a Harley Davidson
motorcycle in a partial state of repair, methamphetamine and drug paraphernalia, and a
large metal cage. Police found no one else
inside the home.
¶4 A few hours later, Sandra Jett, Robert
Jett’s ex-wife, and her father, Homer Ferrell,
told police a woman named “Smokey” might
have seen the shootings. Several hours after
this tip, police met with the only eyewitness,
Shawn “Smokey” Tarp. She described the
shooter and his vehicle, but did not know him
and could not give police his name. The crime
scene failed to reveal the shooter’s identity.
Police fielded calls and investigated leads, but
almost thirteen months passed with no one
charged in the killings.
¶5 A private attorney eventually told police
that Phillip Hancock, Appellant, might be
involved in an unsolved double homicide.
Appellant had since been convicted in Logan
County of drug and firearm offenses, and was
serving prison time in Hinton, Oklahoma.
Logan County officers had confiscated a Jennings .380 cal. pistol when they arrested
Appellant. The pistol eventually proved to be
Robert Jett’s. In a prison interview with Oklahoma City investigators, Appellant waived his
Miranda rights and admitted shooting Jett and
Lynch with Jett’s pistol. An extended statement of the trial evidence is necessary.
B. Trial Testimony.
1. Shawn “Smokey” Tarp.
¶6 Shawn “Smokey” Tarp testified that
Robert Jett invited her to come down from
Guthrie the evening of the shootings to show
her his motorcycle and pay back a loan on
some coins. She arrived around 9:45 p.m and
entered the home to see James Lynch sitting in
a chair in the living room, while Jett worked on
a motorcycle in “what we call the Harley
Room.” Tarp believed Jett was trying to
rebuild a starter on the Harley, and was
becoming frustrated with it. A third man,
797
whom she did not know, sat on a motorcycle
seat near Jett in the Harley Room. At trial, Tarp
identified Phillip Dean Hancock as that man.
¶7 Jett, Lynch, and Tarp all talked. Tarp
sensed that a separate conversation and underlying tension had been going on between Jett
and Appellant. Appellant would at times interject in the conversation that he “should just
shut the fuck up, I’m here to be friends.’” The
nature of the conversation between Appellant
and Jett made Tarp “think that there was a
falling out they were trying to put past them.”
¶8 Tarp never heard Lynch or Jett say anything in response to Appellant’s comments.
Jett’s cell phone rang. Tarp answered it at Jett’s
request, took it to Jett in the Harley Room, then
returned to the couch in the living room. Jett
spoke briefly on his phone and hung up. He
worked another five minutes on the motorcycle before throwing up his hands in frustration.
Jett went to the bedroom and changed clothes.
Tarp helped Jett look for his moccasins, and
saw Jett load or check a pistol while standing
next to her in the living room. He placed the
pistol in his waistband.
¶9 As Jett readied to leave, James Lynch lay
on his stomach on the living room floor, sorting motorcycle parts. Appellant had moved
from the Harley Room to the living room, sitting close to where Lynch was sorting parts.
Tarp recalled tension between Appellant and
Robert Jett as they discussed a pair of glasses
on the coffee table. Appellant said the glasses
belonged to his estranged girlfriend, Katherine
Quick, who had spent the night before last on
Jett’s sofa after moving out of Appellant’s
house. Jett said the glasses were his. Tarp felt
that Appellant cared in some way that his
girlfriend had been at the house.
¶10 Tarp asked if she could go with Jett on
his errand. He said no and kissed her goodbye
on the cheek. She asked Jett if he had both of
his cell phones. Jett had both phones, but needed cigarettes. Tarp saw a pack of Camels on the
coffee table and handed it to Jett. Jett grew
angry when he saw the pack was open. He
screamed at Appellant, “Did you open these
cigarettes? I told you not to open these. There
must be four or five packs open in this house.”
Appellant said he opened the pack. “And Bob
got really mad about it…He told the guy to get
in the cage.”1
798
¶11 At some point, Jett grabbed a metal
break-over ratchet tool and walked toward
Appellant swinging it. Tarp was unsure if he
hit Appellant or just threatened him with the
wrench. 2 Jett said to Appellant, “I told you to
get in the fucking cage.” Tarp testified Jett’s
anger was real and, though she was in disbelief
at his behavior, he was not joking.3 When Jett
made this second command, he and Appellant
were “[r]ight next to each other.” Jett’s voice
was louder than before. Sensing trouble, Tarp
stood up at the end of the coffee table. Jett
walked backed toward her, and was standing
right next to Tarp when Appellant jumped up
and came at him. Tarp saw them fight only for
a few seconds before going through another
bedroom door that opened into the hallway.
Tarp then heard a sound. “…I wasn’t sure, but
after the second one I knew it was bullets, gunshots.” By the third shot, she saw Jett running
away and heard him say “I took one.” Tarp
heard a fourth shot after seeing Jett running.
Jett ran from the living room through the
Harley room, through the kitchen, and out the
back door into the yard.
¶12 Tarp took refuge from the shooting
underneath boxes piled at a window in a second bedroom. Jett fled his attacker “through
the Harley room, through the kitchen, through
the back door, and was running around the
back side of the house away from the gun.”
Tarp heard three more shots that sounded different. “And then J.V. fell really hard…I heard
four and then three.” From her hiding place,
Tarp heard the shooter follow Jett through the
Harley Room and out the back door. She heard
Jett fall in the back yard outside the window.
Tarp heard Jett say, “I’m going to die,” and the
shooter reply, “Yes, you are,” followed by two
more shots. She could hear Jett pleading for
help.
¶13 Tarp estimated the whole episode transpired in “maybe 45 seconds or so.” As she
remained hidden, Tarp heard the shooter come
back in the house and walk around for “at least
five minutes.” When the house fell silent, Tarp
left her hiding place and went to the bedroom
door. She listened from there a few seconds,
then walked into the living room. She saw
Lynch lying on the floor, blood surging from
his chest. Lynch had obviously moved from
where he had been lying on the floor sorting
parts.4 Tarp’s purse, containing her car keys,
was trapped beneath Lynch’s head. She then
realized in horror that Appellant stood watch-
Vol. 78 — No. 10 — 3/24/2007
ing her at the front door.5 She saw the gun in
his hand and closed her eyes, thinking she
would be shot.
¶14 “I’m sorry you had to see that,” Appellant said. “You’re not like the other girls.” He
asked her sternly, “What do you want to do
now?” Tarp replied, “I just want to go home.”
He said “And I’m going to let you…I want you
to give me two minutes and don’t look at the
tag on the truck.” Appellant got in his truck
and backed away. He did not limp or appear to
be injured. “He was very calm.” Tarp removed
her purse from under Lynch’s head and ran
out the front door. As she fumbled to start her
car, Tarp saw the shooter’s red pickup truck
stopped in the road four houses down the
street. Appellant was checking something
underneath the truck.6
¶15 Tarp left the scene going the opposite
direction. She phoned Sandy Jett from a grocery store, telling her James Lynch was dead
and Robert Jett needed help. Sandy Jett told
Tarp she would call 911. Tarp then went to her
employer’s home, let herself in, and sat alone
at the table writing down what had happened.
Finding Tarp sitting at her table exhausted
around 6 a.m., Tarp’s employer helped her
clean up. They called police.
¶16 Tarp admitted she smoked marijuana at
Jett’s home that evening, and that the three
men used methamphetamine. She believed she
left the scene at “just before midnight.” Tarp
identified photographs of items at the crime
scene, including papers she left on the sofa, a
flashlight, a basket, and Jett’s wallet. She
agreed the photos depicted the sofa as it
looked that night. Tarp stated finally that she
never saw anyone grab the shooter by the
throat or choke him on the living room sofa.
2. Post-Mortem Findings.
¶17 Robert Jett suffered four gunshot
wounds. The fatal bullet entered the top of
Jett’s right shoulder traveling downward,
damaging Jett’s lung, heart, liver, and abdominal aorta. Another bullet struck Jett’s right arm
and went through, re-entered his right flank,
and traveled left and slightly downward
through his body without striking the vital
organs. A third bullet hit Jett’s right kneecap
traveling left and downwards, exiting behind
the knee. The absence of powder burns and
stippling (abrasions caused by powder partiVol. 78 — No. 10 — 3/24/2007
cles) suggested these were not contact or
close-range wounds.
¶18 Jett’s blood tested positive for methamphetamine in a concentration of 1.4 micrograms/ml. A forensic toxicologist testified this
was a “fairly high level of methamphetamine
likely produce “irritability, slurring of speech,
quick reactions…increased blood pressure,
increased heart rate, increased temperature,
those types of things…it speeds things up.”
Jett’s methamphetamine level could be tolerable for an abuser. Both the Medical Examiner
and toxicologist testified that methamphetamine did not cause the deaths of Jett or Lynch.
¶19 James Lynch suffered a non-fatal gunshot wound to the left cheek with injury to his
upper jaw and tongue. The bullet stopped in
the soft tissue near the cervical spine. The stellate pattern of this wound usually appears in
contact gunshot wounds, but the Medical
Examiner observed no gunshot residue or stippling. Lynch also had a gunshot wound to the
fingers of his left hand, possibly where the first
bullet struck before entering his cheek. The
fatal bullet entered Lynch’s right lower chest
and passed through the body, upwards and to
the left, coming to rest in the soft tissue of
Lynch’s back. In all three wounds, the absence
of gunshot residue and typical signs of closerange or contact fire indicated the bullets came
from a “distant” range of fire.7 James Lynch’s
post-mortem blood level of methamphetamine
was .23 micrograms/ml.
3. Crime Scene and Firearms Investigation.
¶20 Police recovered six .380 caliber shell
casings in the living room, a seventh in the
back yard. Six were fired from Jett’s .380; identification of the seventh casing was inconclusive. Four projectiles recovered from the bodies of Jett and Lynch matched positively to
Jett’s .380. Two cell phones on the living room
couch and several packs of cigarettes were
recovered, along with methamphetamine and
paraphernalia.
¶21 Sergeant Larry Spruill gave expert opinion, from his examination of the crime scene,
that the condition and placing of objects in the
area of the sofa were inconsistent with the
forced beating later described by the Appellant
in his statements to police and subsequent trial
testimony. Spruill saw papers perched precariously on the back on the sofa and a somewhat
fragile wicker basket sitting on the sofa with
799
no apparent damage. The center sofa pillow
appeared to have been pulled away from its
normal position when Lynch came down on
top of it. Spruill testified that Lynch fell to the
spot where he was found, and small box of
drill bits fell off the table after that. Though
small and cluttered, the house lacked what he
would “expect to see if a very intense fight had
taken place” in the sofa location where Appellant claimed Jett had beaten him while Lynch
held him down. “The only disarray I can find
in the living room, really, is the positioning of
the [coffee] table.” Spruill found the table’s
positioning consistent with Lynch falling
against it as he went to the floor.
¶22 Spruill also testified about the unusual
stellate tearing of the bullet wound to Lynch’s
cheek. The pattern typically appears where the
pressure of escaping gas around the muzzle
tears through skin during a gunshot, consistent with the weapon being in contact or near
the skin surface. Gunshot residue, powder
burns, and stippling are usually seen. Lynch’s
facial and hand wounds contained no gunshot
residue, suggesting a longer muzzle-to-target
distance. Spruill concluded that the stellate
tearing likely occurred when the bullet struck
Lynch’s hand—destabilizing its flight—while
the hand was in hard contact with Lynch’s
face.
¶23 Muzzle-to-target tests of Robert Jett’s
pistol, conducted by defense expert Ed
Heuske,8 indicated to Spruill that the muzzle of
the firearm was not less than 36 inches away
when it shot the rounds that struck both men.
Spruill also testified that police never saw an
iguana in the house, “but we heard him.” He
agreed the cage in the house would hold an
iguana. He also stated that police found a socket wrench or break-over bar of the type
described by Ms. Tarp and Appellant. The
State rested.
4. Witnesses for the Defense.
¶24 Appellant called Dr. J.D. Crooks to testify that an October, 2001 x-ray examination
revealed old fractures of Appellant’s left fifth
and sixth ribs, sustained in the previous three
to six months. Steven McCaslin verified he had
seen Robert Jett fire the .380 pistol and identified it as Jett’s personal weapon. McCaslin also
testified that a nick on the barrel of the gun had
not been there the last time he saw the pistol,
but could not say how or when the nick
occurred. Shelley Madden testified that in Jan800
uary, 2000, and April, 2001, Appellant purchased safety glasses, like the ones shown in
crime scene photos, from her supply store.
¶25 J.D. Spaulding, a private contractor, testified that Appellant wasn’t able to work much
in April and May of 2001 due to leg and side
injuries. Appellant initially told Spaulding “he
had been beaten up.” In June, 2001, Appellant
told Spaulding he had killed two men who
were trying to put him in a cage. Appellant
told Spaulding “that he had no choice, it was
him or them…” Spaulding had also seen
Appellant carrying “a cheap .380.” Spaulding
agreed that he did not report Appellant’s confession to police at that time, but later turned
Appellant in to police when Appellant sought
help from him after escaping the Logan
County jail.9
¶26 Paul Gould testified that Appellant came
to his house after midnight in April, 2001.
Appellant was bloody and his side was hurt.
Gould gave him a T-shirt to wipe his hands off
with some water and supplied a wrap for his
ribs. Appellant had a gun with him. Defense
counsel also offered to prove that Appellant
told Gould “that he had beat up one of them
with a break-over bar and then a man tried to
put him in a cage, he got the gun away and
shot him.” The District Court excluded this
statement from evidence as hearsay.
¶27 Appellant’s neighbor, David Clancy, testified that he was present in late April, 2001,
when Katherine Quick moved out of Appellant’s residence. He denied seeing any animosity between Appellant and Robert Jett on that
day or the two other times he had seen Appellant and Jett together. Around Easter, 2001,
Clancy, Donnie Butler, and Appellant were
tending a brushpile as it burned behind Clancy’s trailer. Robert Jett was also there. Clancy
recounted how Jett had startled the three men
at some point when he “sqeezed off a couple
rounds pretty quick” from a rifle while standing behind them. Clancy told Jett to put up the
rifle, and he did.
¶28 Clancy testified that when he saw
Appellant a few days after the shootings,
Appellant was “limping on one leg and complaining about his chest, he couldn’t hardly
breathe, like a cracked rib...” Appellant had
“big old bruises” on his shins. Two or three
months later, Appellant told Clancy that “Bob
Jett tried to put him in a cage and he fought his
Vol. 78 — No. 10 — 3/24/2007
way out.” Appellant explained that he killed
Lynch “because he was there helping Bob.”
¶29 On cross-examination, Clancy testified
that Katherine Quick was upset and arguing
with Appellant the night she moved out,
because Appellant had disabled her vehicle.
Appellant and Quick were “off and on at
times” as a couple, but that night, “it looked
like it was over for them.” Despite this, Appellant “was calm, didn’t have no problem. He
was like, if you were going to move, move.”
Clancy denied he had offered an alibi for
Appellant during his interview with police.
Clancy recalled that within a week of the
shootings, Appellant traveled alone to Missouri and stayed two or three weeks. Katherine
Quick eventually moved back into the
residence with Appellant after the shootings.
¶30 Katherine Quick testified she lived with
Appellant for about a year, working for Appellant at Hancock Construction. She was addicted to methamphetamine at the time. She confirmed Robert Jett shot a rifle on Easter, 2001,
behind Dave Clancy’s trailer. The Easter gathering at Clancy’s home, where Appellant, Jett,
and others were present, involved “getting
high.” Her relationship with Appellant soured
when he found her intravenous rig for injecting methamphetamine. She explained that “he
didn’t do it that way and it hurt him that I was
doing it that way, that I took it to the next
level.”
¶31 Quick was using drugs heavily on April
24, 2001. Appellant was concerned about her
driving, so he disabled her ignition. When
Appellant found her intravenous rig for shooting methamphetamine, she decided to move
out of their house. Robert Jett “just happened
to show up that night and he helped me get the
key out of my ignition.” She denied any
romantic connection to Jett or any jealousy
between Appellant and Jett. She had known
Jett “about a month” and only been to Jett’s
house two or three times, but went there to do
drugs the night she left Appellant. She slept
that night on Jett’s sofa.
¶32 Appellant was sitting calmly in Jett’s
house when she woke the next morning. He
had come to get his cell phone. She retrieved
the cell phone from her truck while Appellant
sat in Jett’s house. Robert and Sandra Jett were
asleep in the bedroom. Quick could not
remember how long Appellant stayed at Jett’s
house that morning. Appellant did not seem
Vol. 78 — No. 10 — 3/24/2007
mad at Robert Jett that morning. She had seen
the large cage in Jett’s house but not the iguana. She identified the sunglasses Appellant
bought for her in a picture of Jett’s living room.
¶33 Appellant called her after she had
already heard news of the shootings. When she
saw Appellant, “I seen all the marks, how he
was beat up...on his arm, on his leg, bruises on
his ribs, busted lip, mark on his head…He was
hurt pretty bad. And we talked about it and I
left with him…I went home with him.” Quick
testified Appellant remained in Oklahoma for
a month and a half after the shootings. Appellant then “left and went and stayed with his
aunt for a while” in Branson, Missouri. Appellant appeared fearful of Jett’s friends. On crossexamination, Quick admitted she was in the
courtroom when Appellant testified. Quick
said she was unaware the Appellant had told
others she was untrustworthy, or that he
believed she had “set him up” to be hurt by
Jett. She persisted that she had left Appellant
when he became upset about her intravenous
drug use. She did not know how long
Appellant stayed in Missouri.
¶34 The defense presented expert testimony
that the bullet hole in Lynch’s shirt bore no
indicia of a close-contact gunshot wound
either by gunshot residue or typical damage to
the shirt fabric. The expert, Ed Heuske, found
only a few gunpowder particles near the hole,
but attributed their presence to contamination
rather than gunfire. A “modified Greiss” test
chemically identified the presence a “couple of
gunpowder particles” near the bullet hole.
Heuske felt the fact that police did not attempt
to recover bullets for three of the fired shots
left “a lot of questions about where shots were
fired from and what directions and so forth.”
¶35 Heuske agreed with Larry Spruill that a
destabilized bullet in flight might have caused
Lynch’s stellate cheek wound. However, he
told the jury that research literature suggested
some gunshot wounds to the cheek display the
stellate pattern without close-range or contact
muzzle-to-target distance. Heuske could not
conclusively establish the sequence of shots
fired in the case relative to wounds inflicted on
Jett and Lynch. He could find no evidence to
support Appellant’s claim of close-range or
contact firing at Jett and Lynch. He offered the
possibility that, in Lynch’s case, intermediate
targets, such as cushions or the couch, might
have intercepted the flight of the bullet and
801
absorbed the gunshot residue before striking
Lynch. Heuske also explained Appellant’s
claim of close-range fire might be a false recollection from a stressful event.
5. Appellant’s Testimony.
¶36 Appellant testified that in 1982, at age
eighteen, he was convicted of manslaughter
and served two and one-half years in prison.
He claimed self-defense at his 1982 trial.10 He
admitted several other felony convictions
including his recent Logan County felonies for
possessing drugs, precursor chemicals, and the
pistol used in the shootings.
¶37 Appellant described Katherine Quick as
a “bipolar, manic-depressive, paranoid schizophrenic” who, like Appellant, abused methamphetamine. He first met Robert Jett sometime
in 2000 at Dave Clancy’s home. They subsequently used methamphetamine several times,
at Appellant’s house in Guthrie and Jett’s in
Oklahoma City. Appellant related how, on
Easter, 2001, Jett walked up behind Donnie
Butler and fired an AR-15 rifle several times
near Butler’s head “to intimidate him.”
¶38 When Appellant and Katherine Quick
fell out over her IV drug use, on April 24, 2001,
Robert and Sandy Jett, Dave and Temple Clancy, Debbie Hodges, and a woman named Holly
helped Quick relocate. Appellant denied arguing with Robert Jett (or James Lynch) about
anything. Quick spent the night of her departure from Appellant’s house on Robert Jett’s
sofa. The following morning around 8 a.m.,
Appellant went to Jett’s residence to retrieve a
cell phone taken by Quick during the move.
Appellant thought he heard someone say
“come in” and opened the door. Quick was
asleep on the couch. Robert and Sandy Jett
were asleep in the bedroom. Appellant got the
cell phone and left.
¶39 Donnie Butler called the following day,
April 26, 2001, and told Appellant to call
Robert Jett. Jett allegedly told Appellant in this
phone call that “Kathy was acting weird and
wanted to come home and I needed to come
get her.” Appellant testified he arrived at Jett’s
house about 10:45 p.m. Quick wasn’t there. Jett
invited him in. Appellant asked for a cigarette
from a pack laying on the table. Jett said
“yeah.” Appellant went into the room where
Jett was working on the motorcycle. Lynch was
sitting on the arm of the rocking chair in the
living room.
802
¶40 Before Shawn Tarp arrived, Jett asked
him, “Did you just walk in my house yesterday? I ought to put you in that cage.” Appellant apologized, explaining he thought someone said “come in,” but opened the door to
find everyone in the house asleep. Appellant
held a drop light while Jett attempted to put
the back tire on the motorcycle. Appellant “just
wanted to get Kathy and go back home,” but
she never came.
¶41 “Smokey” Tarp arrived around 11:30
p.m. She asked Jett for a “teener” of methamphetamine. Jett chopped a quantity on a mirror, and everyone did a line. Appellant saw
Quick’s sunglasses lying on Jett’s coffee table
and stated that Kathy had left her glasses. Jett
picked them up and said, “No, these are my
night riding glasses.” Appellant “wasn’t going
to argue with him.”
¶42 When Jett’s phone rang, he picked it up,
gave it to Tarp, and told her to answer it. She
answered the phone and handed it back to Jett.
Jett hung up with the caller after a few seconds, and said he was going to run an errand.
Jett went to his bedroom. Appellant looked up
after Jett emerged from the bedroom and saw
Jett pull the slide back on a pistol, “looking in
it,” and place it in his belt. Jett walked over to
the front door and locked it. Tarp asked Jett if
he had everything. Jett looked at the table and
said something about needing cigarettes.
¶43 In Appellant’s version, Jett picked up the
cigarettes, “looked at me and said ‘Did you
open this pack of cigarettes?’ And I said ‘Yeah,
You told me I could have a cigarette when I
came in…I asked you if I could get a cigarette.’” Jett then said “I must have five packs
opened around here.”
And [Jett] takes off the vest and throws it
on the floor, and then the next thing I know
he’s standing—I’m sitting on that black
vinyl rocking chair, and next thing I know
he’s over the top of me with a break-over
bar saying ‘That’s it, get—motherfucker,
get in the cage.’
¶44 Jett swung the break-over bar and hit
Appellant in the arm. He moved in front of the
Appellant rather than across the room as related by Tarp. Jett moved to the threshold of the
living and dining rooms, switched the breakover bar from his right hand to his left, and
reached for his gun.
Vol. 78 — No. 10 — 3/24/2007
I didn’t think I could make it out the front
door before Bob would be on me, and the
voice in my head said, if I go in the cage,
my brother’s not going to have a big brother anymore. And as Bob started pulling the
gun out, I jumped up off the seat…
¶45 Jett punched Appellant “right in my
chest” with the bar. Appellant got the barrel of
the gun and tried to twist it back into Jett’s leg.
Jett struck his wrist with the break-over bar.
Lynch “instantly got up—I didn’t know he was
getting up,” grabbed Appellant from behind
“like you’d sack a quarter back,” and “tried to
take my head off.” Lynch dropped Appellant
to the couch “in a choke hold,” his lower legs
extended over the arm of the couch, “just past
the point where I couldn’t get my leg down.”
¶46 Jett, now at the side of the couch with the
break-over bar in both hands, “started hitting
me as hard as he could right in the middle of
my shin, and he was deliberately breaking my
leg.” Pinned on the couch by Lynch, Appellant
realized he was now holding Jett’s pistol by the
barrel.
I was more than happy to offer up my leg
to him. I had the gun in my possession. I
flipped the gun around and I pulled the
trigger and it went click (indicating). And
when I clicked the gun, Bob took his attention off of my leg and started leaning in
and hit me in the hands and the gun, and I
managed to rack it back and get a bullet
chambered.
¶47 Appellant pulled the gun up to where
Jett could not knock it away, but Jett “was able
to hit me in the chest.” Appellant fired twice at
Jett “and he didn’t even flinch.”
He came between my legs and...had the
break-over bar over his head like this (indicating), so he could get in close to my head
to hit me. And with J.V. choking me—I
could choke myself so you know what I
sound like—but I was fighting to get air
across my vocal cords and said ‘I just killed
you, bitch.’ And I had the gun pointed
right at him, I could have shot him, again.
And he was standing in my crouch (sic)
with the break-over bar over his head
(indicating) to hit me, and he looked down
at his chest and he looked back at me and
said, ‘Yeah, you did.’ And he dropped the
break over bar over his head and he took
off.
Vol. 78 — No. 10 — 3/24/2007
¶48 This left the matter of breaking free from
James Lynch. Appellant switched the gun to
his left hand and “put it directly into what I
thought was his chest. I pushed it. I pushed it
hard. It felt like I pushed it into three or four
inches of fat. I pulled the trigger.” Wounded,
Lynch pulled Appellant off the couch with
him, and Appellant “fired as I was coming
up—as I broke his grip off of my neck, I—I
fired again. I guess I fired more than I even
thought I did...Smokey stood up behind me on
the couch. She was sitting on the couch the
whole time.”
¶49 Appellant motioned to Tarp to keep still,
because he “thought Bob was going to come
back in the room, because he didn’t flinch
when I shot him.” Appellant testified he then
told Tarp to get out of the house. “I meant for
her to run out the front door. I didn’t realize
she was going to run into the bedroom.”
Appellant then went into the Harley Room
looking for Jett. He heard “a noise in the back
room and I thought it was Bob in there getting
his AR-15 that he’s got, and all I could think of
is I had to get out of that house, I had to get
some distance away from Bob because he was
getting so close to getting the gun.” Appellant
saw the back door was open and headed into
the darkened back yard. “Three strides off the
back porch,” Appellant encountered Jett again.
And he was kicking at me. His feet were in
my face. And the gun was still in this hand,
because this hand was swollen up (indicating). And it was—it was a knee-jerk reflex
from the hip and I just—I fired and I tried
to fire again, but it was empty…I could see
Bob laying on the ground. And he was
nowhere near where they’ve got him in the
pictures. There’s no way I could have run
through that backyard. It was an obstacle
course.
¶50 Appellant denied pointing the gun at
Tarp. Meeting her again in the house, he said,
“Don’t be afraid, ma’am, I’m not going to hurt
you.”
I didn’t call her sweetie…I put my hand on
her shoulder and I said, ‘I’m sorry you had
to see that.’ And I wasn’t referring to me
shooting them, I was referring to them
attacking me. I was apologizing for their
actions.
¶51 Appellant told Tarp he would leave first
and then she could go. He denied stopping the
803
truck down the street, as Tarp described.
“Nothing fell off my truck.” Appellant went to
Paul Gould’s residence and stayed until 4:30
a.m. Appellant testified that he believed Jett’s
order to get in the cage “equaled death.”
There was no way he could put me in a
cage and let me out. I’m not going in a
cage. There’s no way he can put a person in
a cage and then let them out…Instant—
instantly I knew he couldn’t let me out of
the cage. That’s a felony, to kidnap somebody and assault them with the break-over
bar…I didn’t think he could let me out of
the cage without risking prosecution.
¶52 Appellant left the house because “I was
in pain, I was hurt, and I was scared.” He
explained that he didn’t turn himself in later
because of fear of “the other bikers,” one of
whom, Lynch’s brother, he had seen “on the
news the next day saying how they were going
to get me.” Appellant’s direct testimony ended
with his statement, “I’m sorry they had to die,
but I had to fight.”
¶53 Cross-examination established Appellant never claimed in prior statements that Jett
locked the front door. He also admitted that he
never told police Jett had taken his jacket off
and thrown it to the floor; or that Jett had
struck his arm with the break-over bar; or that
Jett was pulling the gun from his pants when
Appellant engaged him.
¶54 Appellant testified that when Quick
moved out of their house, she had told him she
would be staying in her car at her Oklahoma
City rental property on 41st Street. Because
Jett’s house was on the route he took to Quick’s
rental property the next morning, he saw
Quick’s vehicle parked in Jett’s driveway. He
went in to get his phone, and stayed “30 minutes to an hour.” Appellant disowned a previous statement claiming Donnie Butler had told
him “Kathy called and wanted me to meet her
at Robert’s,” saying at trial that Butler only
told him to call over to Robert Jett’s. “And
when I called over to Bob’s, Bob said ‘You need
to get Kathy, she wants to come home.’” While
admitting that James Lynch was obese, Appellant denied seeing him walk with a limp or
have mobility problems.
¶55 Appellant’s allegation that the investigating officers manufactured evidence that the
broken tailpipe recovered at the scene was consistent with the exhaust system on his pickup
804
truck, and his conspiracy theory that Jett
and/or Quick had actually “lured” him from
Guthrie for the express purpose of putting him
in the cage and killing him, may have done
additional damage to his credibility.
6. State’s Rebuttal.
¶56 In the State’s rebuttal, Dorothy Belknap,
a Nurse Practitioner for the Veterans Administration who was James Lynch’s primary health
care provider, testified that James Lynch was
morbidly obese and suffered diabetes. Lynch
“always walked slowly and always with a
limp” because of a hip replacement. Additional facts are related in connection with
Appellant’s individual claims of error.
II. CHALLENGES TO THE CAPITAL
CONVICTIONS.
A. Sufficiency of the Evidence.
¶57 Appellant’s Proposition I divides his
challenge to the sufficiency of the evidence
into three related arguments. In sum, he argues
that the proof fails to show intent to kill by
legally sufficient evidence; that his claim of
self-defense, properly raised, was never disproved beyond a reasonable doubt; and that, at
most, he could be guilty of manslaughter by
killing in a heat of passion or resisting a criminal attempt. 21 O.S.2001, §711. Appellant
demurred to the evidence at the close of the
State’s case-in-chief, but waived his right to
appeal the trial court’s ruling on his demurrer
by offering evidence that he killed both men in
self-defense. Young v. State, 2000 OK CR 17,
¶34, 12 P.3d 20, 35. This Court therefore looks
to the entire trial record to determine
“whether, after reviewing the evidence in the
light most favorable to the prosecution, any
rational trier of fact could have found the
essential elements of the crime charged
beyond a reasonable doubt.” Young, at ¶35, 12
P.3d at 35, citing Speuhler v. State, 1985 OK CR
132, ¶7, 709 P.2d 202, 203.
¶58 The parties marshaled evidence and
arguments supporting their respective theories
of malice aforethought murder and justifiable
homicide in self-defense. Many of the facts are
in conflict. Prosecution and defense testimony
agree that Jett became overtly hostile over
Appellant’s opening of the pack of cigarettes
and, having swung a break-over bar in Appellant’s direction or hit him with it, ordered
Appellant into the metal cage. The State’s
proof has Jett returning to the other side of the
Vol. 78 — No. 10 — 3/24/2007
room, while Appellant says Jett rapidly escalated the situation by reaching for his pistol
from a few feet away. Tarp tells how she was
pushed from the room in the physical attack,
again in conflict with Appellant’s account of
being tackled and pinned by Lynch and then
savagely beaten by Jett, all while Tarp was still
in the room.
¶63 Prosecution and defense testimony also
agrees that Jett was irritated when he learned
Appellant had come in the house the previous
morning. Appellant was probably no more
welcome when he returned the following
evening, perhaps hoping to plead for Katherine Quick’s return or smooth things over with
Jett.
¶59 Tarp testified Appellant left the property
calmly and without significant injuries. Appellant and his witnesses testified to his injuries.
Most of the evidence about the gunshot
wounds indicates a muzzle-to-target range of
thirty six inches or more. Appellant insisted at
trial that he fired at least twice at Jett from
close range; at least once while he thought
Lynch’s body was in contact with the pistol
barrel; and twice more at Lynch from close
range as he broke free.
¶64 Both men were taking methamphetamine. Jett abused Appellant over the borrowed
cigarette, swung the break-over bar at him,
and ordered him into a cage. Appellant,
already smoldering, accosted Jett with the element of surprise, seized the pistol from his
belt, and proceeded to shoot Jett and Lynch,
when neither man confronted him with an
imminent threat of death or great bodily harm.
From the evidence, these inferences support
the State’s theory of a double murder.
¶60 The State theorized the trouble between
Appellant and Jett was Appellant’s anger and
frustration over the breakup with Katherine
Quick. Appellant did not want Quick to leave
their home two days before; he disabled her
car ignition. Against his wishes, she had
moved out and ended up at Robert Jett’s
house. The State inferred that Quick had not
invited Appellant to come to Jett’s that next
morning, and was disturbed to see him sitting
in Jett’s house when she awoke.
¶65 The Oklahoma Statutes define firstdegree murder as the unlawful killing of a
human being with malice aforethought. 21
O.S.2001 §701.7(A). Premeditated design sufficient to establish malice aforethought may be
inferred from the fact of killing alone, unless
the facts and circumstances raise a reasonable
doubt as to whether such design existed. 21
O.S.2001 §702; Freeman v. State, 1994 OK CR 37,
876 P.2d 283, 287. The unlawful design to effect
death, by which a homicide constitutes murder, may be formed instantly before committing the act by which it is carried into execution. Williams v. State, 1991 OK CR 28, ¶11, 807
P.2d 271, 274. Because the State must also
prove that the deaths were “unlawful” as an
element of first-degree murder, we agree with
Appellant that “the State was obligated to
prove, beyond a reasonable doubt, that Appellant did not act in self-defense.” McHam v.
State, 2005 OK CR 28, ¶10, 126 P.3d 662, 667,
citing Perez v. State, 1990 OK CR 67, ¶¶5-8, 798
P.2d 639, 640-41. The District Court here
instructed the jury on the elements of firstdegree murder, the law of justifiable homicide
in self-defense, and the lesser-included offense
of first-degree “heat of passion” manslaughter.
¶61 The State inferred that in the thirty minutes to an hour he spent at Jett’s that morning,
Appellant tried unsuccessfully to win Quick’s
return. Neither Appellant nor Quick knew Jett
all that well; his basic relationship to them
being methamphetamine supplier and fellow
drug abuser. But when Appellant left Jett’s
house the morning before the shootings,
Katherine Quick was choosing her IV drug
habit—and associates who were more or less
indifferent to it—over life with him.
¶62 Appellant knew that Quick went to
Robert Jett’s when she wanted drugs. When
Appellant showed up at Jett’s house the night
of the shootings, Quick wasn’t even there. Jett
was working on his motorcycle. He had called
in his debt from Shawn Tarp and she was coming to pay. Tarp’s testimony about the tensions
she sensed when she arrived supports the
inference that Appellant and Jett had been discussing the difficulties of the last few days,
involving events and people to which they
were privy, but Tarp was not.
Vol. 78 — No. 10 — 3/24/2007
¶66 A jury’s resolution of the element of
intent withstands appellate scrutiny “if a
rational trier of fact could have found beyond
a reasonable doubt the presence of intent when
viewing the evidence in the light most favorable to the State.” Williams, at ¶11, 807 P.2d at
274, citing Treece v. State, 1988 OK CR 67, ¶4,
753 P.2d 377, 378. This Court has held “it is the
805
defendant guilty. This being true, it is not
for this court to say that the verdict of the
jury was contrary to the evidence…The
argument presented by the able brief filed
by attorneys for the defendant, in this case
presents an argument that the jury could
have well considered; but in view of the
conflicting testimony it is not the province
of this court to disturb the verdict when it
has been adverse to the contention made
by the defendant.
exclusive province of the jury to weigh the testimony and circumstances to determine malice
aforethought.” Hiler v. State, 1990 OK CR 54,
¶11, 796 P.2d 346, 349. Whether the actions of
Jett and Lynch justified the killings in selfdefense, or provoked Appellant’s passions
enough to reduce one or both of the crimes
from murder to manslaughter, was also a question submitted for the jury’s resolution under
the instructions and evidence.
¶67 Traditionally, if there is evidence from
which a jury could conclude that a defendant
is guilty, this Court will not interfere with that
verdict, even if sharp conflicts in the evidence
exist. Vick v. State, 1988 OK CR 110, ¶4, 756 P.2d
1239, 1240. Wilkie v. State, 1926 OK CR, 33
Okl.Cr. 225, 242 P. 1057, bears a similarity to
this case in that the prosecution’s evidence
“would indicate that the defendant killed
deceased without justification, while that of
the defendant tends to raise the issue of selfdefense.” In Wilkie, the court’s instructions
submitted the issues of murder, manslaughter
in the first degree, and self-defense. 242 P. at
1058. This Court held:
Under the contention that the evidence is
insufficient, it is argued that the defendant
can be guilty of no higher offense than
manslaughter in the first degree. The law
applicable to first degree manslaughter
was fairly submitted, but the jury by its
verdict found against the defendant, and
the evidence fully sustains their verdict.
Id.
¶68 Hendrick v. State, 1937 OK CR, 63 Okl.Cr.
100, 73 P.2d 184 is another case where the evidence was “highly conflicting as to who was
the aggressor at the time of the fatal difficulty.”
63 Okl.Cr. at 105, 73 P.2d at 187. The defendant
and his father testified that defendant fired the
fatal shots as the deceased attacked him with a
claw hammer. The wife of the deceased testified he was unarmed when the defendant
opened fire. A fourth witness saw the hammer
still in the dead man’s pocket as he lay on the
ground. A fifth witness saw the hammer on the
ground near the deceased. There the Court
said:
The jury, after hearing this conflicting evidence, seeing and observing the witnesses
on the stand, and hearing the charge of the
court, which when carefully read protected
the rights of the defendant, found the
806
Hendrick, 63 Okl.Cr. at 105, 73 P.2d at 187-188.
¶69 The same could be said in the present
case. Counsel for Appellant endeavors in the
brief to amplify consistencies between Appellant’s claim of self-defense and the crime scene
evidence, and to expose every perceived misstatement of law and fact in the State’s testimony and arguments to the jury. However,
members of the jury “are not bound to believe
the testimony or any part of the testimony of
any witness, when in their judgment the witness may have testified falsely, or may have
been mistaken. There is no statute or principle
of law which requires a jury to believe a witness simply because he may be corroborated.”
Williams v. State, 1913 OK CR 98, 9 Okl.Cr. 206,
131 P. 179, 180.
¶70 Our review of the sufficiency of the evidence is not an occasion for choosing from
among the conflicting inferences those we find
more or less plausible. It is enough that the
jury might draw the permissible inference of
malice aforethought from the witnesses and
evidence at trial. Our cases remind us that “the
jury were in a much better condition to determine their credibility than the members of this
court are.” Williams, 9 Okl.Cr. at 207, 131 P. at
180. Judge Doyle observed for this Court long
ago that a “question merely of fact is presented
by the evidence, dependent wholly upon the
credibility of the witnesses and the weight of
their evidence.” Morris v. State, 1939 OK CR, 67
Okl.Cr. 404, 413, 94 P.2d 842, 845.
There could be no case suggested presenting a matter more proper for the decision
of a jury. The jurors are the sole judges of
the credibility of the witnesses who testify
before them; and they are not bound to,
nor can they be compelled to, credit the
testimony of any witness, whether contradicted or not.
Id.
Vol. 78 — No. 10 — 3/24/2007
¶71 The facts and circumstances, only a summary of which could possibly be set forth in
the statement of the evidence above, as well as
the manifold questions of weight and credibility in the testimony, were presented to the jury
and argued vigorously by counsel. The daunting task of resolving the accusations of guilt is
not ours, but the jury’s. “[T]he jury being the
tribunal upon which by our Constitution and
laws is especially imposed the duty of weighing the testimony, and having so weighed the
testimony and found against the defendant, it
is not the province of this court to disturb their
verdict.” Grimes v. State, 1961 OK CR 102, ¶36,
365 P.2d 739, 747, quoting Morris, 1939 OK CR,
67 Okl.Cr. 404, 413, 94 P.2d 842, 845. The evidence is sufficient to support the convictions.
Proposition I is denied.
B. Rulings on the Admissibility of Evidence.
¶72 In Propositions II, VI, VII, and VIII,
Appellant challenges the District Court’s rulings on the admission and exclusion of firststage evidence. The District Court’s admission
or exclusion of evidence over a timely objection or offer of proof is ordinarily discretionary
and will not be reversed on appeal unless
clearly erroneous or manifestly unreasonable.
Hogan v. State, 2006 OK CR 19, ¶¶29, 139 P.3d
907, 920. Where Appellant fails to object contemporaneously to evidence when admitted,
or make an offer of proof concerning excluded
evidence, our review is limited to plain error.
12 O.S.2001, §2104. We review Appellant’s
challenges to the District Court’s rulings with
these principles in mind.
¶73 Appellant challenges the admission of
his 1982 manslaughter conviction and related
testimony in Proposition II. Appellant initially
preserved the issue by timely objection to the
evidence at trial. Defense counsel then introduced the fact of the conviction on Appellant’s
direct examination. Counsel for Appellant
acknowledges the authority of Dodd v. State,
2004 OK CR 31, 100 P.3d 1017, where this Court
held that “defense counsel waived any error
by choosing to broach the subject [of prior convictions] on direct examination, thereby avoiding the ‘sting’ of having them first revealed by
the prosecutor on cross-examination.” Id. at
¶72, 100 P.3d at 1039. Cognizant of the waiver,
Appellant claims ineffective assistance of
counsel. See Proposition XI, infra. The issue is
waived, but we will review the admission of
Vol. 78 — No. 10 — 3/24/2007
the prior conviction for plain error. Simpson v.
State, 1994 OK CR 40, 876 P.2d 690.
¶74 The Oklahoma Evidence Code authorizes the admission of prior felony convictions
“[f]or the purpose of attacking the credibility
of a witness.” 12 O.S.2001, §2609(A). Section
2609(A)(1) provides that in a criminal prosecution, “…evidence that an accused has been
convicted of such a crime shall be admitted if
the court determines that the probative value
of admitting this evidence outweighs its prejudicial effect to the accused.” Section 2609(B)
excludes a prior conviction if “a period of more
than ten (10) years has elapsed since the date of
the conviction or of the release of the witness
from the confinement imposed for that conviction…unless the court determines, in the interests of justice, that the probative value of the
conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”
¶75 Appellant characterizes much of the District Court’s rationale for admitting the conviction in unflattering terms, indulging a lengthy
discourse about how the District Court admitted the conviction under either a “hybrid”
interpretation of sections 2609 and 2404(B), or
a creative innovation on the “near miss”
admissibility
for
hearsay
under
12
O.S.Supp.2002, §2804.1. The Attorney General
defends the ruling below not as one grounded
in the Oklahoma Evidence Code as such, but
rather in the common law doctrine of impeachment for bias. The State argues the evidence
showed Appellant’s bias, or “inclination,” to
claim self-defense after committing violent
attacks. We do not look to the common law for
a theory of admissibility in this instance,
because the Evidence Code itself sets the terms
for admissibility of prior convictions in criminal cases.
¶76 The District Court rejected the State’s
request to admit the conviction and its particulars under 12 O.S.2001, §2404(B). The State
then gave notice of its intention to offer evidence about the conviction under section
2609(B) if the Appellant testified in his defense.
On direct examination, the jury learned Appellant had a prior manslaughter conviction from
1982, as well as several other felony convictions; he had claimed self-defense in the 1982
homicide case; was convicted, and served two
years of the prison term.
807
¶77 On cross-examination, the District Court
admitted the judgment and sentence for
manslaughter. The State also obtained Appellant’s admission of other felony convictions for
possession of precursor chemicals and possession of contraband in a penal institution.
Appellant conceded his 1982 plea of selfdefense, but denied that he looked at or understood the instructions on self-defense in the
1982 trial. Appellant interrupted the prosecutor’s next question with the statement that
“[a]ll I knew was I was being violently
attacked then, and I was being violently
attacked on”—at which point the prosecutor
changed questions:
Q. You were being violently attacked? A
man leaned into your window and you
shot him five times, that’s a violent attack?
Defense Counsel: Judge, I object to this.
A. (Appellant): You’d have to know Charlie Warren. He was another mean person.
¶78 The District Court overruled defense
counsel’s request for a mistrial, but instructed
the prosecutor to steer clear of the facts of the
1982 case, finding that “it is appropriate that he
knows the defense, he’s familiar with that
defense, but I don’t want to re-litigate that
other manslaughter.” The prosecutor noted
that her reference to the facts of the 1982 crime
was “the response to a que—a statement that
he made.” The cross-examination then continued on other subjects. The District Court’s subsequent instructions informed the jury Appellant’s prior convictions were offered as
“impeachment evidence,” to show “that the
defendant’s testimony is not believable or
truthful,” and that jury might consider it “only
to the extent that you determine it affects the
believability of the defendant, if at all.” See
OUJI-CR 2nd 9-23.
¶79 Standing alone, the 1982 manslaughter
conviction had no legal relevance to whether
Appellant acted in self-defense in 2001. 12
O.S.2001, §2401 (“Relevant evidence” means
evidence having any tendency to make the
existence of any fact that is of consequence to
the determination of the action more probable
or less probable than it would be without the
evidence). The conviction became relevant
when Appellant placed his credibility in issue
by testifying he acted in self-defense. The Evidence Code conditioned the admissibility of
this “stale” felony conviction on proper notice
808
to the defense and a legal determination of
whether “the probative value of the conviction
supported by specific facts and circumstances
substantially outweighs its prejudicial effect.”
12 O.S.2001, §2609(B).
¶80 “Plain errors” are violations of legal
rules clear from the appellate record that go to
the foundation of the case or take from the
defendant a right essential to his defense.
Simpson v. State, 1994 OK CR 40, ¶23, 876 P.2d
690, 698; Valdez v. State, 1995 OK CR 18, f. 6, 900
P.2d 363, 369, fn. 6. Despite the creative
exchange of theories for and against the District Court’s ruling, the State’s manifest purpose in offering evidence of the prior conviction and Appellant’s prior plea of self-defense
was to attack the credibility of Appellant’s current plea of self-defense. The record as a whole
shows the District Court weighed both the probative value of the evidence for this purpose
and its prejudicial effect. Appellant’s prior conviction and his plea of self-defense were
“directly relevant to his credibility as a witness,” as they tended to show that Appellant
had minimized his responsibility when prosecuted in a previous case and might do so again.
Dodd, at ¶72, 100 P.3d at 1039. We reject Appellant’s arguments that by admitting the evidence under the particular facts and circumstances here the District Court committed
plain error going to the foundation of the case
or taking from Appellant a right essential to his
defense. Simpson, supra.
¶81 The prosecutor’s reference to the underlying facts of the case was prompted by and in
response to Appellant’s statement. While a
witness’ passing comment “does not give the
District Attorney an unrestricted license to say
anything at all” in response, Starr v. State, 1979
OK CR 126, ¶13, 602 P.2d 1046, 1049, a witness
“who offers one-sided versions of his own past
conduct subjects himself to cross-examination
aimed at showing the jury that he is not telling
the whole truth about that conduct, and therefore cannot be trusted to tell the truth about
other matters either.” Dodd, at ¶73, 100 P.3d at
1039-1040. Appellant’s volunteered statement
opened the door to a further examination of
the underlying facts in the 1982 case to
impeach his self-serving characterization. The
prosecutor possessed the ammunition to walk
right through that door, but the District Court
closed it in an abundance of caution. No relief
is warranted. Proposition II is denied.
Vol. 78 — No. 10 — 3/24/2007
¶82 In Proposition VI, Appellant argues
reversible error in the District Court’s exclusion of hearsay statements by Appellant to
defense witness Paul Gould. Defense counsel
offered Appellant’s statements to Gould as
“part of the res gestae, happened immediately
after”—and alleged that Gould would testify
Appellant said “that guy beat him up and tried
to put him in a cage.” Defense counsel later
modified this offer of proof, telling the Court
that Gould would testify Appellant “told
[Gould] he had beat up one of them with a breakover bar and then a man tried to put him in a
cage, he got the gun away from him and shot
him.” (emphasis added). The District Court
excluded these statements as “self-serving”
hearsay. Appellant now argues alternatively
that defense counsel’s “res gestae” reference
inartfully advanced a valid ground of admissibility, and Appellant’s statements to Gould
should have been admitted as “present sense
impressions” or “excited utterances” under 12
O.S.2001, §2803(2), or under the pre-Code
exception for hearsay statements that are part
of the “res gestae” of the offense. He also
alleges trial counsel’s failure to offer the correct
exception to the hearsay rule was ineffective
assistance of counsel.
¶83 For a hearsay statement to be admitted
as an excited utterance, three foundational
requirements must be met: A startling event or
condition; a statement relating to that startling
event or condition; made while the declarant is
under the stress of excitement by the startling
event or condition. Mitchell v. State, 2005 OK
CR 15, ¶27, 120 P.3d 1196, 1205. The Evidence
Code excepts the excited utterance from the
prohibition against hearsay because “its nearness to the stimulating event excludes the possibility of premeditation and fabrication.” Bishop v. State, 1978 OK CR 69, ¶19, 581 P.2d 45, 48.
In determining the admissibility of an out-ofcourt statement as an excited utterance, “[t]he
critical question…is whether the statements by
the declarant were spoken under the extreme
stress of a startling event so that there was no
time to fabricate.” Johnson v. State, 1982 OK CR
37, ¶19, 665 P.2d 815, 820.
¶84 The present sense impression is a
hearsay statement “describing or explaining
an event or condition made while the declarant
was perceiving the event or condition, or
immediately thereafter.” 12 O.S.2001, §2803(1).
The theory supporting the admissibility of a
present sense impression is similar to that of
Vol. 78 — No. 10 — 3/24/2007
excited utterances, i.e., “that substantial contemporaneity of the event and the statement
negate the likelihood of deliberate and conscious misrepresentation.” Whinery, Courtroom
Guide to the Oklahoma Evidence Code, 618 (West,
2005). The foundational requirements for a
present sense impression include: a startling
event; a statement explaining the event or condition; made while the declarant is perceiving
the event or immediately after the event. Welch
v. State, 1998 OK CR 54, ¶8, 968 P.2d 1231, 1240.
Appellant concedes that the Evidence Code
has largely subsumed the pre-Code “res gestae” exception in the hearsay exceptions
allowed in section 2803 (1-4).
¶85 From the record before us, the District
Court did not abuse its discretion in excluding
Gould’s testimony. Gould testified that Appellant came to his house “real late one night or
real early in the morning around midnight.”
Appellant’s “side was hurt…his ribs were
hurting, so I had given him a wrap to put
around his waist.” Appellant was carrying a
gun and had blood on his hands. Gould gave
him a t-shirt to wipe his hands. Appellant sat
down. When defense counsel sought to elicit
Appellant’s statements about what happened,
the District Court sustained the hearsay objections. Gould was allowed, however, to testify
that Appellant told him “what happened.”
Gould said Appellant stayed there approximately twenty minutes, during which they
“were just sitting there talking.” Gould agreed
with defense counsel’s leading questions that
Appellant was “upset and nervous” and
seemed “scared.”
¶86 While the Evidence Code does not bar
otherwise admissible statements merely
because they are “self-serving,” section
2803(2)’s requirement that the hearsay statement be made while under the stress of the
startling event is “particularly important; there
must be no time for reflection or fabrication.”
Williams v. State, 1996 OK CR 16, ¶17, 915 P.2d
371, 378. In Williams, we recognized that
“shooting and killing two men certainly qualifies as a startling event,” and held that defendant’s exculpatory statement, made within
seconds of the shots, should have been admitted as an excited utterance. Id., at ¶17, 915 P.2d
at 379. We emphasized there that the “words
should be one continuing transaction with the
event.” Id. The Court in Williams also found the
statement in question was sufficiently spontaneous and contemporaneous with the shooting
809
to be admissible as a present sense impression.
Id., at ¶18, 915 P.2d at 379.
¶87 We may infer that Gould’s testimony
about Appellant’s appearance at his house
relates to the night of the shootings or sometime the following morning. The record does
not support a conclusion that Appellant’s
statements to Gould were “one continuing
transaction with the event” or that Appellant
uttered those statements under circumstances
that “exclude the possibility of premeditation
and fabrication.” Bishop, supra. The proffered
evidence also lacks the “substantial contemporaneity of the event and the statement” that
negates “the likelihood of deliberate and conscious misrepresentation.” Whinery, supra.
Without these traditional assurances of the
statement’s reliability, which alone justify an
exception to the hearsay rule, the District
Court did not abuse its discretion by excluding
the statements from evidence at trial. There is
no error.
¶88 Further considerations support the view
that Appellant suffered no prejudice. If
believed, Gould’s testimony established that
Appellant had seen Gould at some point the
morning after the shootings. Gould was permitted to testify that Appellant was bloody,
had a gun, appeared hurt, and told him “what
happened.” Appellant subsequently testified
to the shooting episode at trial. Assuming
Gould’s excluded testimony would have
squared with defense counsel’s offer of proof,
it only established that Appellant suffered
injuries (as he claimed at trial), and probably
told Gould he killed two men while he was
defending himself.
¶89 Based on the testimony the jury did hear,
it could readily infer that Appellant made
exculpatory statements to Gould after the
shootings. The corroborative force of these
statements appears minimal since the jury was
disinclined to believe Appellant’s sworn trial
testimony of self-defense. Other defense witnesses also testified, without objection, that
Appellant had injuries after the shootings, and
that he consistently told these witnesses he
killed two men in self-defense. The jury’s verdict rejected Appellant’s version of events,
even after he swore to it under oath.
¶90 We find no reason to believe that
Gould’s repetition of the self-defense claim
through these excluded statements would
have altered the outcome. Any error in their
810
exclusion was harmless. We also deny the corresponding claim of ineffective assistance of
counsel, as Appellant cannot show any prejudice from defense counsel’s failure to more
clearly articulate the excited utterance exception. See Proposition XI, infra; Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed. 674 (1984).
¶91 Appellant argues in Proposition VII that
the District Court erroneously excluded evidence that Jett and Lynch were affiliated with
“notorious motorcycle gangs.” Appellant
claims on appeal that this evidence was relevant to his flight and his claim of self-defense.
Despite the specific ruling Appellant questions
here, evidence and inferences of the biker affiliations of Jett and Lynch resound through the
testimony and exhibits. Jett was working on a
Harley Davidson motorcycle late in the
evening in a cluttered house filled with motorcycle tools and parts, pictured in several
exhibits. Jett possessed a quantity of methamphetamine and distributed it to people who
called on him at home, including Appellant,
Tarp, and Katherine Quick. Indeed, Jett’s reputation as a reliable drug supplier explains his
association with Appellant and Katherine
Quick in the first place. The night he was
killed, Jett armed himself with a pistol and
donned a leather motorcycle vest as he was
preparing to leave after receiving a brief cell
phone call. Lynch was helping Appellant by
sorting motorcycle parts the night he was
killed. Lynch had used methamphetamine that
night with Jett, Tarp, and Appellant.
¶92 Appellant testified Jett and Lynch were
bikers. During re-direct examination, defense
counsel elicited evidence that the investigating
officers referred to Jett as “Biker Bob.” Ignoring the District Court’s rulings, Appellant intimated the two men’s affiliations with the
Rogues, Hangmen, and Banditos biker gangs.
He told the jury he feared retaliation from bikers after seeing a television broadcast in which
Lynch’s brother vowed revenge against him.
To the extent that the biker connections animated Appellant’s fear and explained Appellant’s subsequent flight, the District Court
admitted more than sufficient evidence.
Appellant has failed to show any prejudice
from the exclusion of some additional evidence that Jett and Lynch associated with biker
gangs. There is no error.
Vol. 78 — No. 10 — 3/24/2007
¶93 Appellant also questions the District
Court’s exclusion of evidence that police
recovered an AR-15 rifle from Jett’s bedroom,
arguing it corroborated his claim he believed
he was still in danger after initially disarming
Jett, because he thought Jett was attempting to
retrieve this rifle. Reviewing for abuse of discretion, we find none. When defense counsel
sought to elicit testimony during the State’s
case-in-chief that the AR-15 rifle was present in
the house, he conceded that Appellant did not
know the rifle was there that night. The District Court properly excluded evidence of the
AR-15 in Jett’s bedroom when defense counsel
failed to show its relevance at the time it was
offered on cross-examination. The presence of
a firearm of which Appellant was unaware at
the time of the killings could have no bearing
on the reasonableness of Appellant’s belief that
the killings were necessary. Bechtel v. State,
1992 OK CR 55, ¶38, 840 P.2d 1, 12 (right to
self-defense is not conditioned on whether
danger was in fact imminent, but whether,
given the circumstances as defendant
perceived them, the defendant’s belief was
reasonable that the danger was imminent).
¶94 Appellant was later allowed to testify to
his fear of Jett based on the Easter incident
where Jett fired an AR-15 rifle. Appellant also
testified that he “thought Bob was in the bedroom getting that AR-15,” and that he
“thought he went back down through the bedroom, went in his room and got another gun.
He had guns all over the house anyway. Every
room in that house had a gun in it.” In this way
Appellant tried to explain why he felt justified
in following Jett into the backyard and shooting him again. Appellant can show no abuse of
discretion in the District Court’s ruling. Proposition VII is denied.
¶95 Appellant argues in Proposition VIII that
the District Court’s exclusion of Defense
Exhibits 20 and 21 after the State used portions
of the document to impeach Appellant violated due process. After Appellant’s direct testimony, the State impeached Appellant with
specific inconsistent statements from a transcript of Appellant’s tape-recorded interviews
with investigators. See 12 O.S.2001, §§2613,
2801 (a party may impeach a witness with
prior inconsistent statements; such out-ofcourt statements are not hearsay when offered
to impeach a witness). The State objected on redirect examination when defense counsel
inquired about other statements made by
Vol. 78 — No. 10 — 3/24/2007
Appellant during the interview but not mentioned in Appellant’s direct testimony. The
District Court directed defense counsel to confine the inquiry to prior consistent statements.
The Court also told defense counsel he would
be permitted to play any portions of the taperecorded statements that were consistent with
Appellant’s trial testimony. Defense counsel
ultimately offered to introduce the entire
recordings of Appellant’s interviews as
Defense Exhibits 20 and 21. The District Court
sustained the State’s objection.
¶96 The State might well have offered all of
Appellant’s statements to police against him as
non-hearsay admissions, 12 O.S.2001,
§2801(B)(2)(a), but chose instead to crossexamine him on specific statements that were
inconsistent with his trial testimony. Appellant
now argues that the District Court’s approach
made defense counsel’s re-direct examination
“disjointed” and denied him “the right to fully
rehabilitate his credibility and deprived him of
a fair trial.”
¶97 Appellant cannot sustain the contention
that he was unfairly limited in presenting his
prior consistent statements to police to show
the consistency of his story. Appellant’s two
statements to police, which he sought to admit
in their entirety, were lengthy recorded interviews consisting of statements canvassed on
direct, cross-examination, and re-direct examination. The playing of these exhibits to the jury
would have expended several additional
hours of court time. We note initially that even
if relevant and admissible, the District Court
has discretion to limit testimony and exhibits
to avoid a needless presentation of cumulative
evidence. 12 O.S.Supp.2004, §2403. We gather
from the record this formed at least part of the
rationale for the District Court’s ruling. Exculpatory statements made in the same conversation as a confession or admission are admissible to explain the circumstances of the confession. Crawford v. State, 1992 OK CR 62, ¶17, 840
P.2d 627, 633. However, because the District
Court allowed defense counsel sufficient latitude to explore Appellant’s prior consistent
statements as well as the circumstances of his
interview with detectives, Appellant can show
no abuse of discretion or prejudice resulting
from the exclusion of these exhibits. No relief is
required.
C. Errors in Instructions and Closing Arguments.
811
¶98 In Proposition III, Appellant faults
instructional errors and misleading arguments
as denying his right to fair consideration of the
lesser-included offense of manslaughter. Our
cases impose on the District Courts the important duty “to instruct the jury on the salient
features of the law raised by the evidence with
or without a request.” Hogan v. State, 2006 OK
CR 19, ¶39, 139 P.3d 907, 923, citing inter alia,
Atterberry v. State, 1986 OK CR 186, ¶8, 731 P.2d
420, 422. The determination of which instructions are warranted by the evidence remains a
matter of trial court discretion. Omalza v. State,
1995 OK CR 80, ¶52, 911 P.2d 286, 303. Jury
instructions are sufficient if when read as a
whole they state the applicable law. Hogan, Id.,
citing McGregor v. State, 1994 OK CR 71, ¶23,
885 P.2d 1366, 1380. We will reverse the judgment only where an error in the instructions to
the jury “has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” 20
O.S.2001, §3001.1; Phillips v. State, 1999 OK CR
38, ¶73, 989 P.2d 1017, 1038.
¶99 Appellant first assigns error in the District Court’s decision to administer OUJI-CR
2d 8-50 through 8-53,11 instructions on the doctrines of the denial of the right to self-defense
by an aggressor, withdrawal of an aggressor,
the right to self-defense in circumstances of
mutual combat, and the fact that menacing
words alone are not sufficient to trigger the
right of self-defense. Appellant faults the District Court’s failure to “tailor” alternatives
within the language of the instruction with
what he perceives to be the facts of the case on
these issues. Appellant preserved this issue by
timely objection at trial.
¶100 The District Court found among the
evidence at trial some testimony to support
each of these instructions on the law of selfdefense. The evidence and possible inferences
about the nature of the initial altercation
between Appellant and Robert Jett are inherently conflicting, and matters only get more
tangled from there. The evidence therefore
required important credibility choices by the
trier of fact in applying the law of self-defense
and lesser-included offenses. Although the
State and Appellant championed two competing views of the evidence, the District Court’s
instructions accounted for a variety of ways
jurors may have interpreted the evidence and
included proper statements on the law of selfdefense in light of those possibilities. The
812
instructions also correctly stated the State’s
burden to disprove self-defense, and the lesser-included offenses, beyond a reasonable
doubt. Appellant has not shown how the
instructions, when read as a whole, could have
prejudiced his defense at trial. The District
Court avoided the very pitfall that has
reversed other cases by fully instructing the
jury on the law applicable to Appellant’s principal defense against the charges, as well as
proper lesser-included offenses. No cause for
reversal is shown.
¶101 In subproposition III (C), Appellant
argues the instructional errors were compounded by prosecutorial misstatements of
law in closing argument. The claim is waived
by the failure to object. Reviewing the comments for plain error, we reverse only if the
comments had “a ‘substantial influence’ on the
outcome,” or leave the reviewing court “in
‘grave doubt’ as to whether it had such an
effect.” Simpson v. State, 1994 OK CR 40, ¶36,
876 P.2d 690, 702. Counsel for the State and
defense are entitled to a liberal freedom of
speech in arguing the facts and competing
inferences of the case from their opposing
points of view. Frederick v. State, 2001 OK CR
34, ¶150, 37 P.3d 908, 946; Bland v. State, 2000
OK CR 11, ¶97, 4 P.3d 702, 728. Reversal is
required only where grossly improper and
unwarranted argument affects a defendant’s
rights. Howell v. State, 2006 OK CR 28, ¶11, 138
P.3d 549, 556, citing Hanson v. State, 2003 OK
CR 12, ¶13, 72 P.3d 40, 49. The prosecutor’s
arguments offered his interpretation of the evidence and how the jury should apply the
instructions of the court. Appellant has shown
neither error nor prejudice here. Proposition III
is denied.
¶102 In Proposition V, Appellant complains
that the District Court failed to instruct, sua
sponte, on the defense of first-degree
manslaughter while resisting an attempt to
commit a crime. 21 O.S.2001, §711(3). He also
claims ineffective assistance of counsel arising
from counsel’s failure to request such an
instruction. We have previously concluded
that the instructions, as a whole, properly stated the applicable law on the crimes alleged
and the claim of self-defense presented by the
Appellant, as well as the lesser-included
offense of heat of passion manslaughter.
Notwithstanding his specific complaints in
Proposition III, Appellant concedes the District
Court correctly gave instructions on his theory
Vol. 78 — No. 10 — 3/24/2007
of self-defense and first-degree manslaughter
in the heat of passion. Reversal on this claim
would be appropriate only where Appellant
could show the failure to instruct on an additional theory of manslaughter as a lesserincluded offense resulted in a miscarriage of
justice or the denial of a substantial statutory
or constitutional right. 20 O.S.2001, §3001.1.
¶103 In light of the instructions actually
given, the jury’s verdict found the State disproved Appellant’s self-defense claim beyond
a reasonable doubt; and rejected the available
option of finding Appellant killed Jett and
Lynch in a heat of passion provoked by their
wrongful conduct. Appellant provides no reason to believe that the jury would have found
that Appellant killed the two men unnecessarily while resisting their attempt to commit a
crime. Any fault the jury might have attributed
to Jett and Lynch in bringing about the homicides was insufficient to raise a reasonable
doubt that Appellant killed in self-defense, or
to reduce the offenses from murder to
manslaughter. Additional, sua sponte instructions on another form of manslaughter, likewise premised on a finding of wrongful conduct by Jett and Lynch, would not have
changed the outcome. This proposition is
denied.
¶104 Appellant argues in Proposition IX that
the District Court’s flight instruction violated
his state and federal due process rights. Counsel’s objection to the instruction at trial preserves this issue for appeal. “This Court has
long upheld the giving of flight instructions
where the defendant interposed a plea of selfdefense or justifiable homicide or testified at
trial explaining his departure.” Mitchell v. State,
1993 OK CR 56, ¶7, 876 P.2d 682, 684 (citing
more than a dozen cases). Appellant’s plea of
self-defense and testimony explaining his
departure from the scene brings this case within the well-established parameters where the
flight instruction has been approved. There is
no error.
D. Challenges to Counsel’s First-Stage
Assistance.
¶105 In Propositions IV, V, VI, and XI, Appellant claims violations of his right to assistance
of counsel under the Sixth and Fourteenth
Amendments and Article 2, section 20 of the
Oklahoma Constitution. Appellant argues
defense counsel performed deficiently in: (1)
eliciting the fact of Appellant’s 1982
Vol. 78 — No. 10 — 3/24/2007
manslaughter conviction on direct examination, thus waiving all but plain error; (2) failure
to object to the prosecutor’s misstatements of
law and evidence in closing argument; (2) failing to properly articulate the proper exception
to the hearsay rule for Appellant’s statements
to Paul Gould; (4) failure to call a police detective to testify to the biker reputations of Robert
Jett and James Lynch; (5) failure to properly
utilize available evidence of a 911 call and
police reports to impeach the State witness
who reported the shooting; (6) failure to utilize
available expert testimony and cross-examination to corroborate Appellant’s version of
events; and (7) failure to use a photograph of
Robert Jett’s AR-15 to corroborate Appellant’s
claim that he believed Jett might be going for
another weapon. In connection with several of
these claims, Appellant has filed a motion to
supplement the appellate record and request
for evidentiary hearing as permitted by Rule
3.11(B), Rules of the Oklahoma Court of Criminal
Appeals, 22 O.S., Ch. 18, App (Supp. 2005).
¶106 We address these complaints applying
the familiar test required by the Supreme
Court in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
Ineffective counsel claims must always overcome a strong initial presumption that counsel
rendered reasonable professional assistance by
showing: (1) that trial counsel's performance
was deficient; and (2) that he was prejudiced
by the deficient performance. Spears v. State,
1995 OK CR 36, ¶54, 900 P.2d 431, 445. Courts
indulge this presumption of reasonable professional performance primarily due “to the
many strategic choices counsel must make in
any given case. So long as the choices are
informed ones, counsel’s decision to pursue
one strategy over others is ‘virtually unchallengeable.’” Jones v. State, 2006 OK CR 5, ¶78,
128 P.3d 521, 545, quoting Strickland, 466 U.S. at
690-91, 104 S.Ct. at 2066. To determine whether
counsel’s performance was deficient, we ask
whether the challenged act or omission was
objectively reasonable under prevailing professional norms. In this inquiry, Appellant
must show that counsel committed errors so
serious that he was not functioning as the
counsel guaranteed by the Constitution.
Browning v. State, 2006 OK CR 8, ¶14, 134 P.3d
816, 830. The right to effective counsel at trial is
not an end in itself, but rather an important
means for enforcing the Constitution’s guarantee of a fair and impartial trial with a reliable
813
result. Our overriding concern in judging
counsel’s trial performance is therefore to
determine “whether counsel fulfilled the function of making the adversarial testing process
work.” Hooks v. State, 2001 OK CR 1, ¶54, 19
P.3d 294, 317.
¶107 If Appellant demonstrates that counsel’s representation was objectively unreasonable under prevailing professional norms, he
must further show that he suffered prejudice
as a result of counsel’s errors. The Supreme
Court in Strickland defined “prejudice” as a
reasonable probability that, but for counsel’s
unprofessional errors, the outcome of the trial
or sentencing would have been different. Id.,
citing Williams v. Taylor, 529 U.S. 420, 120 S.Ct.
1479, 146 L.Ed.2d 435 (2000). We will reverse a
conviction or sentence only where the record
shows that counsel made unprofessional
errors “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S., at 687, 104 S.Ct., at 2064. If
the record before us permits resolution of a
claim of ineffectiveness on the ground that
Strickland’s prejudice prong has not been satisfied, we will follow this course. Phillips v. State,
1999 OK CR 38, ¶103, 989 P.2d 1017, 1043.
According to these principles, we turn to an
examination of Appellant’s claims.
¶108 Our decision on the admissibility of
Appellant’s 1982 manslaughter conviction and
evidence that he pled self-defense in that case
foreshadows the resolution of his first allegation. In Proposition II, we concluded the prior
conviction and related evidence were properly
admitted and did not amount to plain error.
Moreover, Appellant cannot show a reasonable
probability that, but for the admission of this
evidence, the outcome of the trial would have
been different. Appellant cannot show the requisite prejudice under Strickland.
¶109 For the same reason, counsel’s failure to
object to alleged misstatements of law and fact
in the prosecutor’s closing argument requires
no relief. Our cases afford counsel for the parties wide latitude during closing argument to
discuss the evidence and reasonable inferences. In Proposition III, we reviewed the prosecutor’s comments and found no grossly
improper or unwarranted arguments amounting to plain error. Even if counsel had objected
to the comments, we would not reverse.
Appellant therefore cannot show Strickland
814
prejudice, and the claim fails. Weatherly v. State,
1987 OK CR 28, ¶30, 733 P.2d 1331, 1339.
¶110 Appellant’s claim that counsel rendered
deficient performance by failing to make a
closing argument in support of the lesserincluded offenses is foreclosed by case law recognizing this as an essentially strategic decision. Appellant cannot plausibly claim that
counsel made his closing argument without
being reasonably informed of the relevant
facts; the tactical decision of how to sum up the
case for the jury in light of the court’s instructions is therefore “virtually unchallengeable.”
Jones, supra. Appellant’s unsupported claim
that counsel’s omission was simple “forgetfulness” is unavailing, because an examination of
defense counsel’s first-stage closing arguments
shows they were objectively reasonable under
prevailing professional norms. The often difficult decision of “which defense to stress during closing argument, where both defenses are
arguable,” is necessarily committed to the
strategic judgment of trial counsel, “which we
refuse to second guess.” Goulsby v. State, 1987
OK CR 184, ¶13, 742 P.2d 567, 572. We will not
reverse on this ground.
¶111 Appellant has filed an application to
supplement the appellate record and requested remand for an evidentiary hearing in connection with his claims that trial counsel failed
to call a police detective to testify to the biker
reputations of Robert Jett and James Lynch;
failed to properly utilize a 911 call and police
reports to impeach the State witness who
reported the shooting; failed to utilize available crime scene evidence and expert testimony to corroborate Appellant’s version of
events; and failed to admit a photograph of
Robert Jett’s AR-15 to corroborate Appellant’s
claim that he believed Jett might be going for
another weapon.
¶112 Under Rule 3.11(B)(3)(b)(i), Rules of the
Oklahoma Court of Criminal Appeals, 22 O.S., Ch.
18, App. (Supp. 2005), this Court reviews the
affidavits and evidentiary materials submitted
by Appellant to determine whether the application sets forth “sufficient information to
show this Court by clear and convincing evidence there is a strong possibility trial counsel
was ineffective for failing to utilize or identify
the complained-of evidence.” If the Court
determines from the application that a strong
possibility of ineffectiveness is shown, we will
“remand the matter to the trial court for an evi-
Vol. 78 — No. 10 — 3/24/2007
dentiary hearing, utilizing the adversarial
process, and direct the trial court to make findings of fact and conclusions of law solely on
the issues and evidence raised in the application.” Rule 3.11(B)(3)(b)(ii). The evidentiary
record thus created in the District Court may
then be admitted as part of the record on
appeal and considered in connection with
Appellant’s claims of ineffective counsel. Rule
3.11(B)(3) and (C).
¶113 After careful consideration of each of
Appellant’s claims in light of both the evidence
offered at trial and materials submitted in support of his Rule 3.11 application, the Court
finds that Appellant has not shown clear and
convincing evidence suggesting a strong possibility that trial counsel was ineffective in the
acts or omissions challenged here. Imaginative
criticisms of trial counsel’s performance issue
all too readily from the gainful vantage of a
zealous hindsight. These criticisms fall short of
impeaching a trial performance that, if less
than perfect, was both skillful and spirited.
Appellant has not shown the strong possibility
that counsel’s alleged errors resulted in a
breakdown of the adversarial process so serious that the trial cannot be deemed to have
produced a reliable result. Scott v. State, 2005
OK CR 3, ¶7, 107 P.3d 605, 607; Short v. State,
1999 OK CR 15, ¶96, 980 P.2d 1081, 1109.
Appellant’s request to supplement the record
and remand for evidentiary hearing under
Rule 3.11 is denied.
III. CHALLENGE TO NON-CAPITAL
CONVICTION.
¶114 In Proposition X, Appellant claims his
conviction in Count 4, possession of a firearm
after former conviction conviction of a felony,
violates 21 O.S.2001, §11, and the constitutional prohibitions against double jeopardy. U.S.
Const. amend. V, XIV; Okla. Const. art. II, §21.
It is beyond doubt that Appellant unlawfully
took the pistol into his possession at Robert
Jett’s house in Oklahoma City in April, 2001,
and that he was arrested while in possession of
the same weapon in Logan County almost six
months later. In 2002, Appellant entered a
guilty plea in the District Court of Logan
County and received ten (10) years imprisonment for his felonious possession of the pistol.
Before his 2004 trial in Oklahoma County,
Appellant pled former jeopardy to Count 4
and moved for dismissal. The District Court
Vol. 78 — No. 10 — 3/24/2007
overruled the motion to dismiss. Appellant has
preserved the issue for review.
¶115 The issue before us is one of first
impression for an offense under 21 O.S.2001,
§1283. However, “[i]t appears to be a well-settled proposition in felon-in-possession cases
that the element of possession implies continuity.” Simmons v. State, 899 P.2d 931, 936 (Alaska
Ct. App. 1995). Criminal possession “may be
brief, if complete, or it may extend over a period of time, if uninterrupted.” State v. Williams,
319 N.W. 2d 748, 751-752 (Neb. 1982) (possession of a firearm, absent evidence of interruption, was a single offense). Felonious possession of a firearm “is a course of conduct, not an
act; by prohibiting possession Congress
intended to punish as one offense all of the acts
of dominion which demonstrate a continuing
possessory interest in a firearm.” United States
v. Jones, 533 F.2d 1387, 1391 (6th Cir. 1976). A
continuing course of conduct defined by
statute as a single crime cannot be charged as
multiple crimes occurring at discrete moments
in time. Id. When defendant is charged “with
multiple counts alleging possession of the
same weapon on different occasions, the State
must bear the burden of proving that the
defendant’s possession was not continuous...
beyond a reasonable doubt.” Simmons, 899 P.2d
at 936.
¶116 In United States v. Jones, supra, the Government charged the defendant in three counts
of felonious possession of the same firearm on
three different occasions over a three-year period. 533 F.2d at 1390. The Government there
argued each act of possession was punishable
as a separate offense. The Court of Appeals
disagreed:
With equal propriety the Government
might have charged Jones with possession
on more than 1100 separate days and
obtained convictions to imprison Jones for
the rest of his life. The fact that the Government merely has proof that he possessed the same weapon on three separate
occasions, rather than continuously for a
three-year period, should not dictate the
result that Jones could receive three times
the punishment he would face if continuous possession for a three year period were
proved. There is no proof that there was
any interruption in the possession by Jones
of the weapon.
815
Id at 1391. The Court of Appeals found defendant’s conviction and punishment for three
counts of felonious possession of the same
firearm violated the Fifth Amendment prohibition against double jeopardy.
¶117 In the District Court, the State argued
that Appellant’s possession of the weapon in
Oklahoma County and Logan County were
separated by several months and thus separate
offenses. Under these particular facts, we disagree. The evidence of Appellant’s felonious
possession of the firearm in Oklahoma County
in April, 2001, and again in Logan County in
October, 2001, raises a sufficient inference, in
the absence of any contrary evidence, that
Appellant continuously exercised dominion
and control over the weapon, so that his possession of it was one ongoing violation of section 1283. Jeopardy attached upon Appellant’s
conviction and punishment for felonious possession of the weapon in the Logan County
District Court. Dyer v. State, 2001 OK CR 31, ¶4,
34 P.3d 652, 653. The conviction and punishment by the District Court of Oklahoma County in Count 4 placed Appellant twice in jeopardy for the same offense in violation of Article
II, Section 21 of the Oklahoma Constitution
and the Fifth and Fourteenth Amendments.
The conviction is reversed.
IV. CHALLENGES TO CAPITAL
SENTENCES.
¶118 Appellant interposes several challenges
to the death sentences in Propositions XII and
XIII. He first argues the evidence is insufficient
to prove the aggravating circumstance that the
murders were especially heinous, atrocious, or
cruel. 21 O.S.2001, §701.12. The proper test of
evidentiary sufficiency for an aggravating circumstance under the Eighth and Fourteenth
Amendments is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the aggravating circumstance beyond a
reasonable doubt. Jones v. State, 2006 OK CR 10,
¶¶4-5, 132 P.3d 1, 2 (Opinion on Rehearing);
Powell v. State, 1995 OK CR 37, ¶3, 906 P.2d 765,
784 (Opinion on Rehearing); see also, Lewis v.
Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d
606 (1990).
¶119 The District Court instructed the jury
that to prove the murders were especially
heinous, atrocious, or cruel, the State must
establish beyond a reasonable doubt that “that
the murder was preceded by either torture of
816
the victim or serious physical abuse” and “that
the facts and circumstances of this case establish that the murder was heinous, atrocious, or
cruel.” The District Court defined torture as
“either great physical anguish or extreme mental cruelty,” requiring a finding “that the victim experienced conscious physical suffering
prior to his death.” The District Court defined
murder as “heinous” only when it is “extremely wicked or shockingly evil; “atrocious” when
it is “outrageously wicked and vile;” or
“cruel,” when it is “pitiless, designed to inflict
a high degree of pain, or utter indifference to
or enjoyment of the suffering of others.” See
OUJI-CR (2d) 4-73; Derosa v. State, 2004 OK CR
19, ¶96, 89 P.3d 1124, 1156.
¶120 In the light most favorable to the State,
the evidence showed that Robert Jett suffered
four bullet wounds (likely caused by three bullets), including three painful, non-fatal
wounds to the arm, flank, and knee. After
shooting twice at Jett in the house, Appellant
said “I just killed you, bitch.” Jett realized his
injuries and said “Yea, you did.” Jett ran from
his home after these first shots in a doomed
attempt to escape the shooter. He fell wounded
in the back yard, where he moaned and
writhed in pain. He spoke his last words—
“I’m going to die”—to his killer, and received
Appellant’s pitiless confirmation, “Yes, you
are.” Appellant then delivered another round
from the pistol. Jett was still alive, moaning
and unable to speak, when police found him
several minutes later. The evidence is sufficient
to support the jury’s finding that Jett’s murder
was especially heinous, atrocious, or cruel.
Phillips v. State, 1999 OK CR 38, ¶¶82-84, 989
P.2d 1017, 1039 (finding defendant’s taunting
of victim after infliction of fatal wound
showed pitiless attitude of killer and nature of
the crime).
¶121 Again, viewing the evidence and inferences tending to support the jury’s verdict,
James Lynch did not die instantly, but suffered
painful gunshot wounds to his face and hand
in addition to the fatal wound to his lower
chest. A bullet struck his hand and then
entered his cheek as he tried to cover his face
or deflect a shot he believed imminent. Lynch
witnessed the shooting of his friend; was
unarmed throughout the confrontation; and
was shot down while attempting to help his
friend when Appellant came up with Jett’s pistol and began to fire. Lynch, obese, in poor
health, and physically limited, was no threat to
Vol. 78 — No. 10 — 3/24/2007
Appellant. Appellant fired the last round at
Lynch while he lay wounded on the floor. The
evidence is sufficient to support a conclusion
that Lynch also consciously suffered “great
physical anguish or extreme mental cruelty”
inflicted by Appellant. Robinson v. State, 1995
OK CR 25, ¶41-45, 900 P.2d 389, 401-402. We
will not reverse the jury’s finding here.
¶122 Appellant next challenges the admission of evidence supporting the continuing
threat aggravating circumstance and deems
this aggravating circumstance constitutionally
overbroad. He also questions whether the jury
instructions on this aggravating circumstance
properly limit the sentencer’s discretion as
required by the Eighth Amendment. See OUJICR (2d) 4-74. Appellant objects that the State
relied for this aggravating circumstance on
Appellant’s prior manslaughter conviction
and other non-violent felonies, his involvement with drugs, and his escape from the
Logan County jail. We note the jury also heard
evidence that Appellant possessed weapons
and committed a violent assault on another
inmate while in jail. On the whole, this evidence was proper. Bland v. State, 2000 OK CR
11, ¶76, 4 P.3d 702, 723; Malone v. State, 1994 OK
CR 43, ¶38, 876 P.2d 707, 717. We have consistently rejected overbreadth challenges to the
continuing threat aggravating circumstance
and the uniform jury instruction defining it.
Williams v. State, 2001 OK CR 9, ¶78, 22 P.3d
702, 722. The evidence supporting this aggravating circumstance is more than sufficient.
Myers v. State, 2006 OK CR 12, ¶87, 133 P.3d
312, 333-334.
¶123 Appellant also challenges the admission of victim impact testimony from witnesses not authorized to give evidence under the
statute. The State called Robert Jett’s brother,
and James Lynch’s brother and sister, as victim
impact witnesses. Without objection, Lynch’s
brother and sister each read prepared statements from Lynch’s nephew and niece about
the impact of his death. The victim impact
statute limits those persons who may offer victim impact testimony to “immediate family,”
i.e., a spouse, child by birth or adoption, a
stepchild, a parent, or a sibling of each victim.
22 O.S.2001, §§984(2), 984.1(A). Counsel
waived the limitations of the statue by failure
to object to the statements from the niece and
nephew of James Lynch. Lott v. State, 2004 OK
CR 27, ¶108, 98 P.3d 318, 346. We find no plain
error because the evidence presented by these
Vol. 78 — No. 10 — 3/24/2007
witnesses complied with the limitations of
statute and case law. Id. at ¶113, 98 P.3d at 347348; 22 O.S.2001, §984(1). Appellant also complains for the first time on appeal that the
admission of an in-life photograph of James
Lynch was error. This issue is waived. Such
evidence is specifically permitted by 12
O.S.Supp.2004, §2403. There is no plain error.
For the same reason, Appellant suffered no
prejudice from counsel’s failure to object to the
victim impact and photographic evidence
under Strickland.
¶124 In Proposition XIII, Appellant seeks
reversal or modification based on the cumulative effect of the District Court’s errors. We
found the conviction in Count 4 was barred by
former jeopardy. That conviction is reversed
with instructions to dismiss. There is no accumulation of error resulting in prejudice to
Appellant’s rights. No further relief is
required. Short, supra, at ¶97, 980 P.2d at 1109.
V. MANDATORY SENTENCE REVIEW.
¶125 This Court must determine in every
capital case: (1) whether the sentence of death
was imposed under the influence of passion,
prejudice or any other arbitrary factor; and (2)
whether the evidence supports the jury's finding of the aggravating circumstances. 21
O.S.2001, §701.13(C). The jury found that
Appellant was previously convicted of a
felony involving the use or threat of violence to
the person; Appellant knowingly created a
great risk of death to more than one person; the
murders were especially heinous, atrocious, or
cruel; and the existence of a probability that
Appellant would commit criminal acts of violence that would constitute a continuing threat
to society. 21 O.S.2001, §701.12(1), (2), (4), and
(7).
¶126 We rejected Appellant’s challenge to
the evidentiary sufficiency of the “especially
heinous, atrocious, or cruel” aggravating circumstance. Appellant’s prior conviction of a
felony involving the use or threat of violence to
the person is undisputed. The “great risk of
death to more than one person” and “continuing threat” aggravating circumstances are also
shown by sufficient evidence. Davis v. State,
1995 OK CR 5, ¶11, 888 P.2d 1018, 1021 (shooting and killing multiple victims in single attack
supported “great risk of death” aggravating
circumstance); Short, 1999 OK CR 15, ¶100, 980
P.2d 1081, 1109-1110 (a finding that the defendant would commit criminal acts of violence
817
that would constitute a continuing threat to
society is shown by evidence that defendant
participated in unrelated criminal acts and
crime exhibited calloused nature of the
defendant).
¶127 Appellant countered the evidence in
aggravation with evidence and argument of
nineteen mitigating circumstances summarized in the instructions to the jury, embracing
his family life and work history; his abusive
birth father and the premature loss of a loving
step-father; his caring relationship with a profoundly disabled brother; his kindness and
charity to other disadvantaged and disabled
people; his lack of psychopathology or mental
illness; and his low risk of future violence in a
structured environment. Upon a careful
review of this record, we cannot say the jury
was improperly influenced by passion, prejudice, or any other arbitrary factor, in finding
that the aggravating circumstances outweighed the mitigating evidence and called for
the ultimate sanction.
DECISION
¶128 The Judgment and Sentence of the
District Court of Oklahoma County in
Counts 1 and 2 is AFFIRMED. Count 4 is
REVERSED and REMANDED with
instructions to dismiss. Pursuant to Rule
3.15, Rules of the Court of Criminal
Appeals, Title 22, Ch. 18, App. (2005), the
MANDATE is ORDERED issued upon the
delivery and filing of this decision.
OF OKLAHOMA COUNTY
THE HONORABLE SUSAN CASWELL,
DISTRICT JUDGE
J.W. Coyle, III, James Hankins, Billy Coyle,
119 N. Robinson, Suite 320, Oklahoma City,
OK 73102, Merle Gile, 120 N. Robinson, Suite
2900, Oklahoma City, OK 73102, Attorneys
For Defendant,
Cassandra Williams, James Siderias, Asst. District Attorneys, 320 Robert S. Kerr, Suite 505,
Oklahoma City, OK 73102, Attorneys For The
State.
James D. Pybas, Division Chief, Michael D.
Moorehead, Appellate Defense Counsel, Oklahoma Indigent Defense System, P.O. Box 926,
818
Norman, OK 73070-0926, Attorneys For
Appellant,
W.A. Drew Edmondson, Attorney General of
Oklahoma, Preston Saul Draper, 313 E. 21st
Street, Oklahoma City, OK 73105, Attorneys
For Appellee.
OPINION BY LEWIS, J.
LUMPKIN, P.J.: concurs in part/dissents in
part
C. JOHNSON, V.P.J.: concurs
CHAPEL, P.J.: concurs in results
A. JOHNSON, J.: concurs
1. Tarp testified she thought the cage was for a dog.
2. “And he was slinging the thing as he walked over and all. I
don’t know that he hit him in the head though. I would think if he had
been hit, I would have known that. I don’t know if he hit him or not.
But I imagine that would hurt like hell..I would have either heard Phil
say something or something…I don’t believe that he was hit because
if he had, I’m sure that it would have been a reaction on Phil’s side,
and he was just sitting there…But I’m not sure if he hit him or he didn’t hit him. It looked like he was — he was close enough he could have
hit him.”
3. “I mean, I was like—I was in disbelief, I couldn’t believe that he
was actually meaning that he really wanted him to.”
4. “I hear the fighting and then the bullets, then Bob running
through the Harley room…Running away from the shots…My feelings were when I was standing in the hallway that J.V. stood up to
intervene and that’s when he was shot.”
5. Tarp initially testified the shooter had the gun pointed at her
head. On cross-examination, counsel confronted her with prior testimony that he was standing at the door and still had the gun. On redirect, the State introduced her prior testimony that she “figured” all
he would have to do is pull the trigger to shoot her.
6. Police recovered an exhaust pipe from the street which toolmark
examiner Ronald Jones later compared to the exhaust pipe under
Appellant’s red Chevrolet pickup truck. Jones testified the severed
exhaust pipe was once connected to the muffler pipe on Appellant’s
truck.
7. In addition to the Medical Examiner’s findings that no gunshot
residue was present in the wounds to Lynch and Jett, firearms examiner Ronald Jones testified that he was unable to visually, microscopically, or chemically detect the presence of powder or gunshot residue
or particles on Lynch’s shirt. Jones specifically said: “Anytime you fire
a firearm, you obviously are going to get a substantial amount of gunshot residue. In extremely close shots, you get the damage added, the
added damage of muzzle blast, you get some burning and singeing
oftentimes, perhaps a star-shaped pattern because of the way the gases
escape. And even out to a few inches you’ll get a very dense and dark
pattern of gunshot residue. It may look like soot, it may look like particulate, there may be some burning with it, so—because you are that
close to escaping gases, you’ll get those on whatever your target is at
that distance in the absence of something intervening.”
8. According Heuske’s report, which Spruill read and relied on, 36
inches “would be the maximum range that firearm is capable of leaving residue on a target.”
9. Appellant’s escape from the Logan County Jail was excluded
from evidence.
10. The District Court excluded evidence that Appellant was
charged with first-degree murder in the 1982 case.
11. Appellant objects to following “untailored” versions of the
Oklahoma Uniform Jury Instructions-Criminal 2d, given to the jury as
Instruction Nos. 22-25:
OUJI-CR 2d 8-50
Self-defense is permitted a person solely because of necessity.
Self-defense is not available to a person who was the aggressor
or provoked another with the intent to cause the altercation or
voluntarily entered into mutual combat, no matter how great the
danger to personal security became during the altercation unless
the right of self-defense is reestablished.
OUJI-CR 2d 8-51
A person who was the original aggressor or provoked another
with intent to cause the altercation or voluntarily entered into
Vol. 78 — No. 10 — 3/24/2007
mutual combat may regain the right to self-defense if that person
withdrew or attempted to withdraw from the altercation and
communicated his desire to withdraw to the other participant(s)
in the altercation. If, thereafter, the other participant(s) continued the altercation, the other participant(s) became the aggressor(s) and the person who was the original aggressor or provoked another with the intent to cause the altercation or voluntarily entered into mutual combat is entitled to the defense of
self-defense.
OUJI-CR 2d 8-52
A person who was not the aggressor or did not provoke another
with intent to cause an altercation or did not voluntarily enter
into mutual combat has no duty to retreat, but may stand firm
and use the right of self-defense.
OUJI-CR 2d 8-53
A person is an aggressor when that person by his/her wrongful
acts provokes, brings about, or continues an altercation. The use
of words alone cannot make a person an aggressor.
IN PART/ DISSENT IN PART
¶1 I concur in the affirmance of the judgments and sentences in Count 1 and 2, but dissent to the reversal in Count 4. I write separately to address certain points.
¶2 In section B of the opinion, Rulings on the
Admissibility of Evidence, I would direct the
reader’s attention to Simpson v. State, 1994 OK
CR 40, ¶11, 876 P.2d 690, 695 for the proposition that the failure to raise a timely objection
to the admission of evidence waives appellate
review for all but plain error review. Also in
Proposition II, I note that in Beck v. State, 1991
OK CR 126, ¶15, 824 P.2d 385, 389 we looked to
the common law as well as the Evidence Code
for the rules and procedures in admitting
evidence of prior convictions.
¶3 In Proposition III, I agree with the Court
that once properly raised the State has the burden to disprove self-defense. However, as the
Court recognizes, the State does not have the
burden to disprove any lesser included offenses. The State’s burden is to prove beyond a reasonable doubt each element of any lesser
included offenses before the defendant can be
convicted of a lesser included offense. See Oklahoma Uniform Jury Instructions Criminal (2d) 1024.
¶4 In Proposition X, I find Appellant’s conviction in Count 4 was not barred by double
jeopardy. Appellant possessed the weapon on
different dates in different counties. Criminal
charges could lawfully be brought in both
counties, as venue of the crime is a different
element in each prosecution. As these were
two separate offenses, jeopardy did not attach
upon Appellant’s conviction in Logan County
and his conviction in Oklahoma County was
not in violation of the prohibition against douVol. 78 — No. 10 — 3/24/2007
ble jeopardy. Accordingly, I would affirm the
conviction in Count 4.
2007 OK CR 10
ROBERT D. BRUMFIELD, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. F-2005-952. March 20, 2007
OPINION
CHAPEL, PRESIDING JUDGE:
¶1 Robert D. Brumfield was tried by jury and
convicted of Aggravated Manufacture of a
Controlled Dangerous Substance (Methamphetamine), under 63 O.S.Supp.2004, §2401(G)(3)(h) (Count I), and Unlawful Possession of a Controlled Dangerous Substance
(Methamphetamine), under 63 O.S.Supp.2004,
§2-402(B)(1) (Count II), in the District Court of
Pushmataha County, Case No. CF-2005-35. In
accordance with the jury’s recommendation,
the Honorable Lowell Burgess, Jr., sentenced
Brumfield to imprisonment for twenty (20)
years on Count I, and imprisonment for two
(2) years on Count II, to be served concurrently. The trial court also imposed a $50,000 fine
on Count I, as required by 63 O.S.Supp.
2004, §2-401(G)(3)(h).1 Brumfield appeals his
convictions and his sentences.
¶2 During the evening of March 16, 2005,
Tiffany Hyde was present in the residence of
Johnny Payne when officers from the Antlers
Police Department executed a search warrant
for the home and discovered a methamphetamine lab. In order to avoid being arrested or
charged, Hyde agreed to go to the home of
Robert Brumfield to see if there was methamphetamine present or if he was “cooking”
methamphetamine. Hyde had previously been
a live-in girlfriend of Brumfield’s and although
she had recently moved out, she still had a key.
Hyde went to Brumfield’s home, and while
there she, Brumfield, and his new girlfriend,
Tara Kinsey, each did a line of methamphetamine off of a “Jesus mirror” that they typically
used for this purpose.2
¶3 After leaving the Brumfield home, Hyde
met up with Officer Ben Milner and told him
about using the methamphetamine with
Brumfield and that he had gotten the drug out
of a green zippered bag, which contained several small plastic bags of methamphetamine.
Hyde also informed Milner that she had previously lived with Brumfield and that he typically cooked methamphetamine in his home
819
about three times per week. Hyde also
informed Milner that the last time she had witnessed Brumfield cooking was about 10 days
earlier. Milner then used this information to
obtain a warrant to search Brumfield’s home.3
packs (typically associated with ephedrine
tablets).5 The search, which lasted approximately two days, did not, however, reveal the
green zippered bag described by Hyde or any
usable methamphetamine.
¶4 At approximately 9:30 a.m., on March 17,
2005, Officer Milner and three other officers
from the Antlers Police Department (Keith
Mack, B.J. Hedgecock, and Johnny Mitchell)
arrived at the Brumfield home to execute the
warrant. Milner testified that he knocked on
the door, identified the group as “police,” and
announced that they had a warrant to search
the property. After waiting approximately 20
seconds with no response, Milner instructed
Deputy Mack to “take the door.” Mack then
busted open the front door with a sledge hammer, and Officers Milner, Mack, and Mitchell
went into the Brumfield home. They observed
Brumfield and a woman who was not wearing
pants coming toward the front door from the
back bedroom area. The officers also noticed a
strong, irritating chemical smell, which they
associated with the clandestine manufacture of
methamphetamine.
¶7 The crux of Brumfield’s Proposition I
claim is that the manner in which the Antlers
police officers executed the warrant to search
his home violated the Fourth Amendment’s
“knock-and-announce” requirement and also
22 O.S.2001, §1228. Defense counsel filed a
motion to suppress based upon this claim,
which was denied by the Honorable Gary L.
Brock, on May 11, 2005, at the conclusion of
Brumfield’s preliminary hearing.6 On June 15,
2005, Brumfield filed a new motion to suppress, making this same claim but incorporating testimony from the preliminary hearing.7
¶5 During the subsequent search of Brumfield’s home, they discovered a large glass jar
containing a two-layer liquid solution, which
tested positive for methamphetamine, in the
leg of a pair of jeans that were in the washing
machine.4 The officers also discovered a sealed
plastic bag containing numerous striker plates
that had been removed from paper matchbooks. The bag of striker plates was found in a
bag of dog food, and the ember remains of the
matchbooks were found in the fireplace. In
addition to these items, the officers discovered
the following in Brumfield’s home, all of
which are associated with the production of
methamphetamine: a bottle of Liquid Fire, a
container of Red Devil lye, multiple packages
of coffee filters, two large containers of table
salt, a container of phosphoric acid, three bottles of rubbing alcohol, baggies, scales,
chemistry books, and various empty glass jars.
¶6 A further search of the property around
the residence revealed a large container of
iodine (placed in the wheel well area of a
decaying car), a bag of plastic vials (in a van on
the property), and numerous items of laboratory-type glassware (in a shop area and buried
under Brumfield’s home). In the remains of a
burn pile in the back yard, officers discovered
what appeared to be toluene cans and blister
820
¶8 Within Proposition I, Brumfield contends
that the information in the affidavit for the
warrant to search his home was insufficient to
establish probable cause for the warrant, since
the affidavit failed to state that Hyde was first
encountered in the bust of a separate methamphetamine lab and that she was under the
influence of this drug at the time she provided
information. The State correctly notes that
Brumfield neglected to raise this claim in support of his suppression motions, thereby waiving it absent plain error.8 We find no plain error
in this regard.9
¶9 Brumfield’s main Proposition I claim is
that the execution of the search warrant on his
home violated the Fourth Amendment’s
“knock-and-announce” requirement and also
22 O.S.2001, §1228. On July 17, 2006, after the
briefing in this case had been completed, the
State tendered a supplemental brief discussing
the impact of the United States Supreme
Court’s June 15, 2006, decision in Hudson v.
Michigan on the current claim.10 On August 22,
2006, this Court ordered that the tendered brief
be filed and that Brumfield be allowed to
respond to the State’s supplemental brief.
Brumfield’s response brief was filed with this
Court on September 5, 2006.
¶10 In Hudson, the Supreme Court recognized that “[t]he common-law principle that
law enforcement officers must announce their
presence and provide residents an opportunity
to open the door is an ancient one.”11 The Court
likewise acknowledged that in Wilson v.
Arkansas,12 the Court had concluded that the
“knock-and-announce rule,” for officers exe-
Vol. 78 — No. 10 — 3/24/2007
cuting a search warrant, is constitutionally
required under the Fourth Amendment.13 Nevertheless, the Hudson Court held, in a 5-4 decision, that a violation of this knock-andannounce rule, by officers executing a search
warrant, does not require that the evidence
obtained in the subsequent search be suppressed.14 The Court recognized three interests
protected by the knock-and-announce requirement: (1) the protection of human life and
limb, since unannounced entries can provoke
violence from surprised residents attempting
to protect themselves; (2) the protection of
property, since the rule gives individuals the
opportunity to avoid the destruction of property caused by a forcible entry; and (3) the values of privacy and dignity, since the rule gives
people an opportunity to prepare themselves
for the entry of police.15
¶11 The Hudson Court emphasized, however,
that the rule “has never protected . . . one’s
interest in preventing the government from
seeing or taking evidence described in a warrant.”16 The Hudson Court then examined the
“social costs” and “deterrence benefits” of
applying the exclusionary rule to cases where
officers violated the knock-and-announce
rule.17 The Court concluded:
In sum, the social costs of applying the
exclusionary rule to knock-and-announce
violations are considerable; the incentive
to such violations is minimal to begin with,
and the extant deterrences against them
are substantial — incomparably greater
than the factors deterring warrantless
entries when Mapp was decided. Resort to
the massive remedy of suppressing evidence of guilt is unjustified.18
Hence the State argues, quite reasonably, that
even if the execution of the warrant at Brumfield’s home violated the Fourth Amendment’s
knock-and-announce requirement, the evidence obtained thereafter need not be suppressed, under the authority of Hudson.
¶12 Brumfield responds, however, also quite
reasonably, that the decision in Hudson does
not control this Court’s interpretation of our
own state statute, namely, 22 O.S.2001, §1228.
This provision authorizes the use of force in
the execution of a search warrant on an occupied home only under two particular circumstances.19 First, it establishes criteria under
which a “no-knock” warrant can be issued by
a magistrate, thereby allowing a forceful entry
Vol. 78 — No. 10 — 3/24/2007
without any warning, where there is reasonable cause to believe that one or more specific
“exigent circumstances” exist. 20 Otherwise,
§1228 does not allow the forceful entry into a
home for the execution of a search warrant,
unless “[t]he officer has been refused admittance after having first given notice of his
authority and purpose.”21 Although no-knock
warrants were not legislatively authorized
until 1990,22 Oklahoma’s statutory requirement
that before an officer can use force in the execution of a search warrant, he must (1) give
notice of his authority and purpose, and (2) be
refused admittance, dates back to statehood.23
¶13 Furthermore, this Court has been
excluding evidence obtained from searches following a violation of our §1228 “notice of
authority” and “refusal of admittance”
requirements since at least as early as 1974—
long before the Supreme Court’s 1995 decision
in Wilson held that “knock and announce” is
constitutionally required.24 In Sears v. State,25
this Court held that the failure of officers who
were executing a search warrant to comply
with §1228 necessitated reversal of the defendant’s conviction for possession of marijuana
with intent to distribute.26 The Sears Court
noted the then-recent repeal of a federal
statute authorizing no-knock warrants and
commented as follows:
We believe the Legislature of the State of
Oklahoma displayed foresight and wisdom by refusing to cast out our announcement of authority and purpose requirement and implementing in its stead a oncepopular, and now discredited, “no knock”
entrance procedure. In so doing, the Legislature stood fast by our traditional values
and guarded the fundamental rights of all
our citizens.27
¶14 This Court’s 1979 decision in Erickson v.
State followed the approach of Sears.28 And neither party has offered evidence to suggest that
this Court has wavered from this approach, i.e.,
of holding that evidence obtained in a search
following a violation of §1228, where there are
no exigent circumstances, is not admissible
against the homeowner.29 Hence this Court has
a long history of enforcing §1228 through the
suppression of evidence quite apart from decisions of the United States Supreme Court
regarding the requirements of the Fourth
Amendment. In addition, Oklahoma remains
free to interpret our own state constitution,
821
with its own protection against “unreasonable
searches or seizures,”30 more broadly than the
United States Supreme Court interprets the
federal constitution.
¶15 In Turner v. City of Lawton,31 the Oklahoma Supreme Court, in a civil case, traced the
development of the exclusionary rule for illegally obtained evidence, both in Oklahoma
and under the U.S. Constitution, and concluded that forty years prior to the Supreme
Court’s decision in Mapp v. Ohio,32 the Oklahoma Supreme Court had incorporated the
exclusionary rule into Oklahoma law.33 Turner
also noted that just two years later this Court
likewise adopted the exclusionary rule in a
criminal case.34 The Turner decision broadly
proclaimed the right of this State to grant protections to its citizens that are more expansive
than those conferred by federal law.
State statutes or state constitutions which
afford greater rights than the federal constitution must be determined by following
state law. The state of Oklahoma in the
exercise of its sovereign power may provide more expansive individual liberties
than those conferred by the United States
Constitution . . . . The people of this state
are governed by the Oklahoma Constitution, and when it grants a right or provides
a principle of law or procedure beyond the
protections supplied by the federal constitution, it speaks for every person as the
supreme law and final authority for everything which is done in pursuance of its
provisions.35
In particular, the Oklahoma Supreme Court
held in Turner that despite contrary decisions
by the United States Supreme Court, evidence
that is obtained through an illegal search must
be suppressed in civil proceedings in Oklahoma, just as it is suppressed in criminal proceedings.36 Hence Turner provides strong support for the argument that Oklahoma’s use of
the exclusionary rule to enforce the protections
of our own state statutes and constitution may
well be substantially more expansive than the
use of this rule to enforce federal law.
¶16 Nevertheless, under the specific circumstances of the current case, we need not decide
whether the search of Mr. Brumfield’s home
violated Oklahoma law or whether such a violation necessarily requires that the evidence
discovered in the subsequent search be suppressed. For despite the fact that defense coun822
sel vigorously raised this issue prior to Brumfield’s trial, when the evidence discovered during the search of Brumfield’s home and property was actually offered at trial, counsel failed
to object or in any manner preserve Brumfield’s claim that the evidence was unlawfully
obtained. This Court has repeatedly held that
in order to preserve a claim that evidence
should have been suppressed, the defendant
must object to the admission of the evidence at
trial.37 In the current case, where the judge who
ruled on the suppression motion specifically
noted that this issue could be further litigated
at the trial level, Brumfield’s failure to preserve
this claim is particularly surprising.38 We find
that the trial court’s failure to exclude this
evidence on its own motion was not plain
error.39
¶17 In Proposition II, Brumfield argues that
the aggravated manufacturing statute that he
was convicted of violating, 63 O.S.Supp.2004,
§2-401(G)(3)(h), is unconstitutionally vague
because the term “mixture” in this section
lacks sufficient definiteness to provide an
ascertainable standard for the determination of
guilt, and because the provision fails to provide “fair notice” of what conduct is forbidden. Brumfield failed to raise any challenge to
this statute at the trial court level. The parties
disagree regarding the proper standard of
appellate review for this claim.40 We conclude
that regardless of which standard of review
we employ, this provision is not void for
vagueness.
¶18 Section 2-401(G)(3) defines “aggravated
manufacturing” as including the manufacture
or attempted manufacture of various amounts
of various different controlled dangerous substances.41 The penalty for aggravated manufacturing is imprisonment for twenty years to life
and a fine of at least $50,000, regardless of
which drug was involved, as long as the specific threshold amount relevant to that drug is
met.42 For aggravated manufacture of methamphetamine, the required minimum amounts
are as follows: “fifty (50) grams or more of
methamphetamine, its salts, isomers, and salts
of its isomers or 500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine, its salts, isomers, or salts of its isomers.”43 Brumfield maintains that the word “mixture” in this provision
is so indefinite that it renders the provision
void for vagueness.
Vol. 78 — No. 10 — 3/24/2007
¶19 This Court has long held that “statutes
creating criminal offenses must be drawn in
language sufficient to apprise the public of
exactly what conduct is forbidden.”44 A statute
is unconstitutionally “vague” if ordinary people reading it cannot understand with reasonable certainty what conduct it requires or prohibits, leaving them to guess at its meaning.45
Such statutes are invalid because they do not
give fair notice of what conduct is required or
prohibited.46
¶20 In Chapman v. United States,47 the United
States Supreme Court addressed the meaning
of the phrase “a mixture or substance containing a detectable amount of _____,” in a case
dealing with how lysergic acid diethylamide
(LSD) found on blotter paper should be
weighed. The Chapman Court had little trouble
concluding that the blotter paper carrying the
individual doses of LSD should be included
when determining the weight of the “mixture .
. . containing a detectable amount of” LSD.48
The Court noted that terms like “mixture”
must be given their ordinary meaning and that
mixture can be defined to include “a portion of
matter consisting of two or more components
that do not bear a fixed proportion to one
another and that, however thoroughly commingled, are regarded as retaining a separate
existence.”49 The drug statute at issue in the
current case uses the identical “mixture”
phrase addressed in Chapman, in relation to
various drugs that are regularly found in
something other than a pure state.50 And like
the Chapman Court, we conclude that the use of
“mixture” in this context does not make this
statute void for vagueness.51
¶21 Section 2-401(G)(3)(h) reasonably
defines the crime of “aggravated manufacturing” of methamphetamine as applying to those
who have successfully produced 50 grams or
more of methamphetamine, as well as those
who have not yet completed the manufacturing process but have reached a stage at which
they have produced 500 grams or more of a
“mixture or substance containing a detectable
amount of methamphetamine . . . .” The statute
gives fair notice of what conduct is proscribed
and is readily comprehensible by persons of
ordinary understanding.
¶22 The controversy in the current case arose
when O.S.B.I. Criminalist Marty Wilson testified that the two-layer liquid found in Brumfield’s home was composed of an aqueous
Vol. 78 — No. 10 — 3/24/2007
layer and an organic/oil layer and that these
two layers “don’t mix.” Wilson maintained
that all of the liquid in the jar, with a total mass
of 1,141 grams, was still one “mixture,” but his
comment about the two layers not mixing created substantial controversy at trial about
whether both layers of the liquid or simply the
bottom layer (containing methamphetamine)
could be counted in determining the applicability of 63 O.S.Supp.2004, §2-401(G)(3)(h).52
¶23 We hold that the term “mixture” was
properly applied to the entire volume of liquid
in the jar found in Brumfield’s home. The fact
that the terms “mix” or “mixture” can be used
to mean slightly different things in different
contexts does not change the fact that the
entire volume of liquid found in the jar was
appropriately treated as a single “mixture”
and that a person of ordinary intelligence
would expect that this would be so. Although
Brumfield’s brief speculates about minute
amounts of methamphetamine being dissolved in vast amounts of water, such hypotheticals are unhelpful and irrelevant in evaluating a situation like Brumfield’s. In this case
the statute is being applied to a person who all
of the evidence suggests is involved in the production of a substantial amount of methamphetamine, with the subject liquid mixture
being the typical and expected result of that
production process. This is not a case where a
trace amount of methamphetamine was
detected in a tub full of bathwater.53 Section 2401(G)(3)(h) is not unconstitutionally vague,
and it was appropriately applied to the entire
contents of the liquid mixture found in
Brumfield’s home.
¶24 In Proposition III, Brumfield asserts that
the State’s evidence was insufficient to establish that he committed the crime of aggravated
manufacture of methamphetamine. As the preceding summary of facts reveals, the State’s
evidence was more than sufficient to establish
that Brumfield committed this crime.54 Brumfield’s home and property were littered with
the essential ingredients for methamphetamine manufacture — or evidence that essential
ingredients had recently been present, e.g., the
blister packs — and the discovery of the jar
containing the two-stage liquid (with
detectable amounts of both P2P and methamphetamine) was compelling evidence that this
manufacturing process had been recently
undertaken by someone in his home. Furthermore, as noted in Proposition II, the entire con-
823
tents of the glass jar were appropriately treated
as a “mixture” containing methamphetamine.
definition of a statutory term. Hence this claim
is rejected.57
¶25 Regarding Proposition IV, this Court
need not address Brumfield’s claim that the
evidence was insufficient to establish that he
committed the crime of unlawful possession of
methamphetamine, because the State’s
concession regarding Proposition VI renders
Brumfield’s Proposition IV claim moot.
¶29 In Proposition VIII, Brumfield asserts
that the trial judge erred by not disqualifying
himself from Brumfield’s case, because the
judge was the one who signed the warrant
authorizing the search of Brumfield’s home
and because he was personally present while
the warrant was being executed upon the
home.58 This Court has recently reviewed the
proper procedure for seeking the recusal or
disqualification of a trial judge in a particular
case.59 Brumfield’s appellate counsel concedes
that Brumfield’s trial counsel did not follow
this process. In fact, defense counsel never
even raised the issue of recusal in the trial
court.60
¶26 In Proposition V, Brumfield asserts that
the trial court should have instructed his jury
on the lesser offense of manufacture of
methamphetamine, in addition to instructing
on aggravated manufacture of this drug. This
claim is simply another version of Brumfield’s
contention that the entire contents of the glass
jar should not have been treated as a single
“mixture.” The only way Brumfield’s jury
could have acquitted him of the crime of
aggravated manufacturing and then convicted
him of simply manufacturing would have
been if the jury had accepted his more narrow
definition of “mixture,” which this Court
rejects herein as incorrect in this context.
Brumfield did not request the lesser instruction, and he was not entitled to it. This claim is
rejected accordingly.
¶27 In Proposition VI, Brumfield asserts that
his convictions for both aggravated manufacture and unlawful possession, based entirely
on the methamphetamine contained within the
liquid in a single glass jar, violates 21 O.S.2001,
§11.55 The State concedes in its brief that
convicting Brumfield of both offenses in this
manner
violated
§11.
Consequently,
Brumfield’s conviction for possession of
methamphetamine (Count II) must be reversed
and dismissed.
¶28 In Proposition VII, Brumfield claims that
his counsel failed to subject the State’s case to
meaningful adversarial testing, because counsel “completely abandoned, and/or failed to
recognize the one defense that could have
resulted in a different outcome for Mr. Brumfield,” i.e., his assertion that the State could not
rely on the entire contents of the glass jar as a
“mixture . . . containing a detectable amount of
methamphetamine.” To establish ineffective
assistance of counsel, Brumfield must show
that his counsel’s performance was deficient
and that he suffered prejudice as a result.56 This
Court cannot and will not find that counsel’s
performance was inadequate because he failed
to more fully argue and pursue an incorrect
824
¶30 Appellate counsel correctly notes that
the trial judge’s personal involvement in the
granting and executing of the warrant to
search Brumfield’s home could have been
cited in a proper request that the judge disqualify himself from the trial of Brumfield’s
case.61 However, this was not done.62
In Mitchell v. State, we recently noted:
[W]hile a defendant can waive his right to
preclude a disqualified judge from hearing
his case, that defendant does not thereby
waive the right to have his trial conducted
in a fair and impartial manner. Whether or
not a defendant can or does establish
before trial that a particular judge is so
likely to be biased against him or her that
the judge should recuse or be disqualified,
the defendant is always entitled to a trial
that is, in fact, fairly conducted.63
Unlike the Mitchell case, however, the current
case does not involve a tenable claim that
Brumfield’s trial was unfairly conducted.
Brumfield barely alludes to unfavorable
actions by the trial judge during his trial and
completely fails to establish that these actions
were improper or unfair to him.64 This Court
does not approve or recommend the overlapping of roles that occurred in this case, especially since the trial judge’s involvement in the
obtaining of the search warrant was emphasized to Brumfield’s jury. Nevertheless, we
conclude that Brumfield has waived this claim
by failing to pursue it properly. And Brumfield
entirely fails to establish actual bias in the trial
judge’s handling of his trial, which was fairly
conducted. This claim is rejected accordingly.
Vol. 78 — No. 10 — 3/24/2007
¶31 Proposition IX is a cumulative error
claim mixed with allegations of prosecutorial
misconduct.65 Brumfield acknowledges that
none of the issues raised in this claim were
properly preserved at trial. Hence all of these
issues have been waived, and we will grant
relief only in the case of plain error.
¶32 Proposition IX includes the following
allegations of error/misconduct: (1) failure to
file a Burks notice regarding the “other crimes”
testimony of Tiffany Hyde,66 (2) improper opinion testimony from Officers Ben Milner and
John Mitchell, (3) an “evidentiary harpoon”
within the testimony of Milner, (4) improper
expert testimony by criminalist Marty Wilson,
(5) improper admission of the search warrant
documents, (6) failure to provide discovery
regarding the potential testimony of Brumfield’s son, and (7) improper prosecutorial
argument. We take up these claims in turn,
evaluating them for plain error.
¶33 Regarding the testimony of Tiffany
Hyde, although no Burks notice was filed,
Brumfield was not surprised by this testimony,
and admission of the testimony was either
proper or did not constitute plain error.67 The
challenged testimony of Officers Milner and
Mitchell was proper, based upon their experiences, and did not simply tell jurors what
result to reach in the case.68 The challenged
“evidentiary harpoon” was appropriately
interrupted by defense counsel and was not
completed.69 This Court concludes that
although the developing testimony was potentially improper, it was not completed, was very
limited, and did not render Brumfield’s trial
unfair. Regarding Brumfied’s expert testimony
claim, Wilson’s rebuttal testimony about
whether the two-layer liquid was a single
“mixture” was not improper and was an
appropriate attempt to clarify his earlier testimony about the two layers “not mixing.”
¶34 Regarding the admission into evidence
of the search warrant documents (State’s
Exhibits 3 & 4), Brumfield correctly notes that
this Court has held that such documents
should not be admitted in a criminal trial.70 Yet
we have also recognized that the admission of
these search-related documents does not necessarily cause prejudice or constitute plain
error, particularly where the evidence contained therein was cumulative to other evidence presented at trial.71 We conclude that the
admission of the search warrant documents in
Vol. 78 — No. 10 — 3/24/2007
the current case did not constitute plain error
or unfairly prejudice Brumfield. Almost all of
the information contained within these documents was cumulative to the trial testimony of
Tiffany Hyde and Officers Milner and Mitchell.
Brumfield notes that certain pieces of information within these exhibits were not cumulative
to other evidence, including the finding in
Brumfield’s home of a surveillance system, a 9
mm pistol, night vision equipment, and “Misc.
Ammo.” While this specific evidence did carry
the potential for prejudice, it was not emphasized to Brumfield’s jury. We conclude that the
trial court did not commit plain error by
admitting this evidence and that Brumfield’s
trial was not rendered unfair thereby.
¶35 Regarding the testimony of defense witness John Paul Brumfield, the defendant’s son,
Brumfield fails to establish that the State committed a discovery violation by failing to disclose that this defense witness (whom the State
did not endorse) was a paid informant and had
helped State agents find evidence of methamphetamine production on his father’s property.72 While the defendant appears to have been
surprised by the testimony of his son at trial,
Brumfield fails to establish that his son’s testimony was “exculpatory” or that the State was
otherwise obligated to disclose its awareness
that perhaps Brumfield’s son should not have
been called to testify as a witness at trial.
¶36 Regarding Brumfield’s claim that the
prosecutor improperly vouched for and bolstered State witnesses and expressed his personal opinion regarding Brumfield’s veracity,
we conclude that no plain error occurred. The
prosecutor’s statements regarding its witnesses were valid credibility arguments and did
not constitute improper vouching. Regarding
the prosecutor’s statement about Brumfield’s
testimony and lack of credibility — that it was
the prosecutor’s personal experience that
defendants rarely take the witness stand and
admit their offenses — defense counsel’s objection to this argument was properly sustained
by the trial court. Although the prosecutor’s
remark was improper, it was not inflammatory, and Brumfield’s trial was not rendered
unfair thereby.
¶37 This Court has fully evaluated Brumfield’s claims and reversed his Count II conviction for possession of methamphetamine
based upon the State’s concession that, under
the facts of this case, it violated Section 11 to
825
convict him on this count. Hence this count
should be reversed with instructions to dismiss. We have addressed all of Brumfield’s
other claims, many of which were not properly preserved in the trial court, and we find that
although his trial was not perfect, it was, on
the whole, fairly conducted. Consequently, this
Court concludes that even considering the
“cumulative effect” of the errors and misconduct discussed herein, Brumfield’s conviction
for aggravated manufacture of methamphetamine should be affirmed.
Decision
¶38 Robert D. Brumfield’s conviction and
sentence for Aggravated Manufacture of a
Controlled Dangerous Substance (Methamphetamine) are AFFIRMED. His conviction for
Unlawful Possession of a Controlled Dangerous Substance (Methamphetamine), however,
is REVERSED and DISMISSED. Pursuant to
Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2005), the
MANDATE is ORDERED issued upon the
delivery and filing of this decision.
ATTORNEYS AT TRIAL
Kyle McCallum, Attorney At Law, 209 E. Jackson, Hugo, Oklahoma 74743, Attorney For
Defendant,
James R. Wolfe, Assistant District Attorney,
Pushmataha District Attorney, 200 S.E. 2nd
Street, Antlers, Oklahoma 74523, Attorney For
The State.
ATTORNEYS ON APPEAL
Kimberly J. Tabor, 1800 N. Norwood Dr., Suite
100, Hurst, Texas 75053, Attorney For Appellant,
W. A. Drew Edmondson, Attorney General Of
Oklahoma, Jennifer L. Strickland, Assistant
Attorney General, 313 N.E. 21st Street, Oklahoma City, Oklahoma 73105, Attorneys For
Appellee.
OPINION BY: CHAPEL, P.J.
LUMPKIN, V. P. J.: CONCUR IN PART/DISSENT IN PART
C. JOHNSON, J.: CONCUR
A. JOHNSON, J.: CONCUR
LEWIS, J.:
CONCUR
1. Brumfield was also ordered to pay a $5,000 assessment for
enforcement of CDS, a $100 assessment for trauma care assistance, and
a $100 assessment for the drug abuse education and treatment revolving fund, all in compliance with the requirements of 63 O.S.Supp.2004,
826
§2-401, in addition to other fees and assessments. None of these assessments is challenged on appeal.
2. Although a square mirror with the image of Christ on it was subsequently discovered during the search of Brumfield’s home, no
methamphetamine residue could be detected on it. Hyde testified at
trial that the mirror was usually cleaned after being used to ingest
meth.
3. The warrant was signed by Judge Lowell Burgess, Jr., at 8:43
a.m., on March 17, 2005.
4. O.S.B.I. chemist Marty Wilson testified that the net weight of the
two-layer liquid (not including the container) was 1,141 grams. He
noted that the top layer, the aqueous layer, contained “P2P,” a Schedule III substance that is a by-product of methamphetamine production
through the red phosphorus/iodine method, and that the bottom
layer, the oil or organic layer, contained methamphetamine, a Schedule II substance. Wilson testified that his testing was purely qualitative. He did not attempt to quantify the amount of P2P or methamphetamine in either of the two layers; nor did he attempt to determine
the weight of the separate layers.
5. The search also revealed a night vision monocular, a police scanner (programmed with the sheriff’s office frequency and turned on),
and a surveillance system by which anyone approaching the home,
from the front or back, could be heard and observed via bedroom
monitors.
6. Judge Brock stated as follows: “The Motion to Suppress will be
overruled at this time. I don’t intend that to be a dispositive ruling for
some other Court, but the Motion to Suppress will be overruled at this
time.”
7. The record in this case does not contain a response from the
State regarding either suppression motion, nor does it contain any ruling from the trial court regarding the second motion.
8. See Jones v. State, 2006 OK CR 5, ¶ 24, 128 P.3d 521, 536 (citing
cases), rehearing granted on other grounds, 2006 OK CR 10, 132 P.3d 1,
cert. denied, __ U.S. __, 127 S.Ct. 404, __ L.Ed.2d __ (2006).
9. This Court notes that the affidavit for search warrant describes
Tiffany Hyde, listing her actual name, notes that she lived with Brumfield during the previous six months, during which time he was
“cooking” methamphetamine “three times a week,” and states that the
previous night Hyde had done “a bump” of methamphetamine along
with Brumfield and a white female. Hence the court evaluating the
warrant application was specifically informed that Hyde was a user of
methamphetamine and that she spent significant time around the production of this drug, and the court was quite able to consider the
impact of these factors in evaluating her credibility. This same reasoning also supports this Court’s conclusion that Brumfield’s attorney
was not ineffective for failing to challenge the issuance of the warrant
under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978), particularly since the affidavit did not include any false statements. Brumfield cannot establish any reasonable probability that if he
had challenged the basis for the search warrant as now suggested, his
motion to suppress would have been granted. Hence he cannot establish either ineffective assistance or plain error in this regard.
10. See Hudson v. Michigan, __ U.S. __, 126 S.Ct. 2159, 165 L.Ed.2d
56 (2006).
11. Id. at __, 126 S.Ct. at 2162.
12. 514 U.S. 927, 929, 115 S.Ct. 1914, 1915, 131 L.Ed.2d 976 (1995)
(holding that “common-law ‘knock and announce’ principle forms a
part of the reasonableness inquiry under the Fourth Amendment”).
13. Hudson, __ U.S. at __, 126 S.Ct. at 2162 (describing Wilson as
concluding that knock-and-announce rule is “a command of the
Fourth Amendment”).
14. Id. at __, 126 S.Ct. at 2165.
15. Id. at __, 126 S.Ct. at 2165. In addition, this Court notes that the
knock-and-announce requirement helps minimize the potentially
harmful and even fatal consequences that can result when officers executing a search warrant serve it on the wrong residence.
16. Id. The Court concluded, “Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the
exclusionary rule is inapplicable.” Id. (emphasis in original).
17. Id. at __, 126 S.Ct. at 2165-68.
18. Id. at __, 126 S.Ct. at 2168 (referring to Mapp v. Ohio, 367 U.S.
643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961) (holding that evidence obtained through unconstitutional searches and seizures is
inadmissible in state court)).
19. It should be noted that this Court has long recognized that
force can be used to enter a home and execute a search warrant, without compliance with §1228, when the home is unoccupied. See Thigpen
v. State, 1931 OK CR 51, 299 P. 230 (Syllabus) (“Where an officer with a
valid search warrant for the search of a house finds no one upon the
premises on whom a demand for admittance can be made, he may
Vol. 78 — No. 10 — 3/24/2007
force an entry for the purpose of serving such search warrant.”); see
also Pennington v. State, 1956 OK CR 98, 302 P.2d 170, 174-75 (following
Thigpen).
20. 22 O.S.2001, §1228(2). The statutory exigent circumstances are
for when warning or other notice of entry would (a) pose a significant
danger to human life, (b) allow the possible destruction of evidence,
(c) give rise to the possibility of resistance or escape, (d) otherwise
inhibit the effective investigation of the crime, or (e) be futile or a useless gesture. Id.
21. 22 O.S.2001, §1228(1).
22. See 22 O.S.Supp.1990, §1228(1) (effective Sept. 1, 1990). This
original authorization for no-knock warrants applied only to cases
where there was probable cause to believe that notice of entry would
“pose a significant danger to human life.” Id. The four additional exigent circumstances (listed in note 20) were adopted in 1999. See 22
O.S.Supp.1999, §1228(1).
23. See R.L.1910, §6066; see also C.L.Dak.1887, §7620.
24. In fact, as early as 1953, in Kelso v. State, 260 P.2d 864, 866 (Okla.
Crim. 1953), this Court noted that “[t]he statutory restrictions surrounding the serving of a warrant in connection with the search of the
house of an accused . . . should be strictly observed.” The opinion’s
Syllabus likewise noted: “Before an officer to whom a search warrant
is directed is authorized to forcibly enter a house to execute a warrant,
he should inform the inhabitant of his authority and he may not
forcibly enter the house until he is denied admittance.” Id. at 865 (citing 22 O.S.1951, §1228). The necessity of suppression was not decided
in Kelso, however, because the defendants in that case did not file a
timely motion to suppress and failed to offer any evidence in support
of their claim. Id. at 866.
25. 1974 OK CR 205, 528 P.2d 732 .
26. Id. at ¶¶ 6-7, 528 P.2d at 733; see also id. at ¶ 10, 528 P.2d at 73435 (“[T]he officers forcibly entered the defendant’s apartment without
first announcing their identity and purpose and requesting permission
to enter. Such action is contrary to the provisions of the law of Oklahoma as set forth by the Legislature in 22 O.S. 1971 §1228[,] and defendant’s Motion to Suppress should have been granted.”).
27. Id. at ¶ 12, 528 P.2d at 735. The Sears Court described the federal repeal as arising “from the abuse by federal agents of the ‘no-knock’
search warrants[,] which resulted in terrorizing and abusing the rights
of law-abiding citizens.” Id. at ¶ 11, 528 P.2d at 735.
28. See Erickson v. State, 1979 OK CR 67, ¶¶ 3-12, 597 P.2d 344, 34547 (reversing conviction where officer who knew someone was present in home entered home without announcing his authority or purpose) (citing and following Sears). The Erickson Court held:
[I]t is the holding of this Court that the failure of the officer
named in the warrant to observe the constraints of 22 O.S.1971,
§1228, in executing the search warrant, where no extenuating
circumstances existed, rendered the search and subsequent
seizure invalid as a violation of the appellant’s Fourth Amendment rights; the trial court’s failure to sustain the appellants’
motion to suppress the fruits of that search and seizure constitutes reversible error.
Id. at ¶ 12, 597 P.2d at 347.
29. This Court does not today address the questions of whether an
individual who does not live in the searched residence has standing to
raise a violation of §1228 or whether the subsequently discovered evidence should be suppressed in the non-resident’s case.
30. See Oklahoma Constitution, Art. 2, §30.
31. 1986 OK 51, ¶¶ 2-8, 733 P.2d 375, 376-78.
32. 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1981)
(extending the federal exclusionary rule to the states).
33. Turner, 1986 OK 51, ¶ 8, 733 P.2d at 378 (citing Hess v. State, 202
P. 310, 84 Okl. 73 (Okla. 1921)).
34. Id. (citing Gore v. State, 218 P. 545, 24 Okl.Cr. 394 (Okla. Crim.
App. 1923)).
35. Id. at ¶ 10, 733 P.2d at 378-79.
36. Id. at ¶¶ 9-19, 733 P.2d at 378-81; see also id. at ¶ 15, 733 P.2d at
380 (“[T]his Court is unfettered in its enforcement of the Oklahoma
exclusionary rule.”].
37. See, e.g., Jones, 2006 OK CR 5, ¶ 24, 128 P.3d at 536 (“An argument raised in support of a motion to suppress which is not raised at
trial is waived.”) (citing Young v. State, 1998 OK CR 62, ¶ 22, 992 P.2d
332, 339); Dunkle v. State, 2006 OK CR 29, ¶¶ 19-20, 139 P.3d 228, 23536 (claim raised in suppression motion that is not renewed by objection to evidence at trial is waived and will be evaluated only for plain
error). Even this Court’s 1923 decision in Gore, which first recognized
the necessity of excluding unlawfully obtained evidence, also recognized the necessity of “timely protest of the accused.” See Gore, 218 P.
at 549, 24 Okl.Cr. at 406.
Vol. 78 — No. 10 — 3/24/2007
38. This Court notes that Brumfield does not raise an ineffective
assistance claim in this regard and also that he acknowledges his counsel’s failure to preserve this claim in his reply brief.
39. Although the facts regarding the execution of the search warrant were focused upon at the preliminary hearing, they were not
focused upon at trial. Hence without an objection from defense counsel, the trial court cannot be held accountable for failing to raise and
decide this issue sua sponte.
40. Brumfield characterizes his claim as a challenge to the trial
court’s subject matter jurisdiction, which can be raised at any time. He
cites Hayes v. Municipal Court, 1971 OK CR 274, ¶ 2, 487 P.2d 974, 975
(“Unconstitutionality of a criminal statute constitutes a jurisdictional
failure in the trial court entertaining a prosecution for an alleged violation of a challenged statute.”). The State maintains that Brumfield’s
constitutional claim is like any other claim that has been waived,
which can be reviewed only for plain error. The State cites Jetton v.
State, 1981 OK CR 84, ¶ 15, 632 P.2d 432, 435-36 (“Where the question
of unconstitutionality of the habitual offender statute is not presented
to the trial court, not argued, and not properly preserved for review,
we will not consider it for the first time on appeal.”) (citation omitted).
41. These ranges vary from 10 grams or more “of a mixture or substance containing a detectable amount of lysergic acid diethylamide
(LSD)” to 1,000 kilograms of more of “a mixture or substance containing a detectable amount of marihuana or . . . 1,000 or more marihuana
plants regardless of weight.” See 63 O.S.Supp.2004, §2-401(G)(3)(e) and
(g).
42. 63 O.S.Supp.2004, §2-401(G)(3).
43. 63 O.S.Supp.2004, §2-401(G)(3)(h).
44. Hayes, 1971 OK CR 274, ¶ 6, 487 P.2d at 976.
45. See Wilkins v. State, 1999 OK CR 27, ¶ 8, 985 P.2d 184, 186 (“As
generally stated, the void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.” (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855,
1858, 75 L.Ed.2d 903 (1983)); State v. Saunders, 1994 OK CR 76, ¶ 5, 886
P.2d 496, 497 (same).
46. Hayes, 1971 OK CR 274, ¶ 6, 487 P.2d at 976 (“A ‘statute which
either forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its meaning
and differ as to its application violates the first essential of due process
of law.’” (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46
S.Ct. 126, 127, 70 L.Ed.2d 322 (1926)); Wilkins, 1999 OK CR 27, ¶ 8, 985
P.2d at 186 (quoting Hayes); Saunders, 1994 OK CR 76, ¶ 6, 886 P.2d at
497 (same).
47. 500 U.S. 453, 455, 111 S.Ct. 1919, 1922, 114 L.Ed.2d 524 (1991).
48. Id. at 461, 111 S.Ct. at 1925; id. at 462, 111 S.Ct. at 1926 (“LSD is
applied to blotter paper in a solvent, which is absorbed into the paper
and ultimately evaporates. . . . [T]he LSD is left behind in a form that
can be said to ‘mix’ with the paper. The LSD crystals are inside of the
paper, so they are commingled with it, but the LSD does not chemically combine with the paper.”).
49. Id. (quoting Webster’s Third New International Dictionary
1449 (1986)).
50. See 63 O.S.Supp.2004, §2-401(G)(3)(a), (b), (d), (e), (f), (g), and
(h).
51. Brumfield’s jury instructions included the following definition
of “mixture”: “a portion of matter consisting of two or more components that do not bear a fixed proportion to one another and that however thoroughly commingled are regarded as retaining a separate existence.” This instruction, which is not separately challenged, comes
from Chapman and appears to be an entirely reasonable definition of
this term in this context.
52. Wilson acknowledged that although it was possible to separate
out the two layers and weigh them separately, he had not done so.
Hence no evidence was presented at trial regarding the weights of the
two separate layers.
53. Cf. Chapman, 500 U.S. at 466 (rejecting similar claim regarding
LSD statute) (“While hypothetical cases can be imagined involving
very heavy carriers and very little LSD, those cases are of no import in
considering a claim by persons such as petitioners, who used a standard LSD carrier.”)
54. See Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202,
203-04 (quoting Jackson).
55. No other methamphetamine, in any form, was found in Brumfield’s home.
56. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064,
80 L.Ed.2d 674 (1984).
827
57. This Court notes that within Proposition VII appellate defense
counsel purports to incorporate all the arguments made in Propositions I, II, V, and IX, “to further support [Brumfield’s] claim that counsel was ineffective.” This is the entirety of the analysis in this regard in
his initial brief. This Court will not comb through an appellate brief to
see if any of the claims that have not prevailed on their own merit can
be transformed into winning ineffective assistance claims. Although
Brumfield’s reply brief does list a number of specific potential claims
of ineffective assistance — still without the requisite
performance/prejudice analysis — this effort is both too little and too
late.
This Court recognizes that Brumfield does specifically assert, in a
footnote, that defense counsel failed to adequately cross examine
Tiffany Hyde regarding whether it was her jeans that were used to
hide the glass jar and whether she placed the jar in the washing
machine. Yet Brumfield neglects to explain how he was prejudiced by
this alleged inadequacy. Hence this claim is incomplete as well.
58. The prosecutor pointed out, during his opening statement, that
the application to search Brumfield’s home was presented to Judge
Burgess and that “Judge Burgess did in fact issue the search warrant.”
When the prosecutor later questioned the officer who obtained the
warrant, the prosecutor asked who signed the affidavit for search warrant, and the officer answered that it was “signed by myself, and Judge
Burgess.” And the three documents comprising State’s Exhibits 3 and
4 — the Affidavit for Search Warrant, Search Warrant, and Search Warrant Return — all include the obvious signature of “Lowell R. Burgess
Jr.,” Judge of the District Court. (These exhibits are further addressed
in Proposition IX). In addition, defense witness Tara Kensey mentioned, on direct examination, that she observed “Judge Burgess out
there,” during the execution of the search warrant on Brumfield’s
home. This testimony, however, was not elicited or emphasized by the
State.
59. See Mitchell v. State, 2006 OK CR 20, ¶¶ 84-86; 136 P.3d 671, 70506 (reviewing required process of pursuing recusal/disqualification
claim under Rule 15, Rules for District Courts of Oklahoma, Title 12, Ch.
2, App. 1 (2002), and 20 O.S.2001, §1403).
60. Shortly after being arrested in this case, Brumfield wrote a pro
se letter stating that he was making “a motion to disqualify Judge
Lowell R. Burgess from presiding over the above menchened [sic]
cases, on the grounds he is biased and prejudiced towards me, causing
a great hardship and conflict of interest.” This letter cites no specific
evidence of bias and is focused on Brumfield’s desire to be released on
an “own recogasense [sic] bond.” The “motion” contained within the
letter was not further pursued by Brumfield or his counsel, nor was it
formally ruled upon by the trial court. Brumfield does not attempt to
claim that this letter adequately preserved the current claim on appeal.
And it certainly did not.
61. The State acknowledges that if Judge Burgess was actually
present during some of the search, he “may have been a possible witness” in the case, but notes that “his testimony was not needed or
sought by either party.” The State cites Black v. State, 2001 OK CR 5,
¶12, 21 P.3d 1047, 1057, in which this Court recently addressed a
defendant’s claim “that if a judge signs the search/arrest warrants in
a case, that judge is necessarily biased/interested in the subsequent
preliminary hearing.” The States invokes the following finding from
Black:
[T]he act of signing search and arrest warrants does not constitute the type of interest in a proceeding that would automatically prohibit the issuing judge from presiding at the subsequent
preliminary hearing[,] absent some evidence that his conduct is
somehow intertwined in the issuance of the warrants as to compromise his impartiality. See 20 O.S.1991, §1401.
Id. at ¶ 13, 21 P.3d at 1057. Hence Black would have had some relevance
for deciding a disqualification claim like the one Brumfield now
attempts to make, though a few distinguishing points seem noteworthy.
Black involved a preliminary hearing rather than a trial; hence
Black did not involve the issue of how knowing that the trial judge had
authorized the arrest or search of the defendant (or his property) could
potentially impact a jury. Furthermore, this Court’s conclusion that the
mere fact that a particular judge has signed search or arrest documents
in a case does not “necessarily” or “automatically” mean that the
judge is biased or interested in the case, so as to preclude his participation in it, is certainly not an endorsement of the practice. Brumfield
also could have made the argument that by overseeing the actual
search of his home — if this is indeed true — the trial judge had “intertwined” himself in the case. This Court today takes no position, however, on these waived arguments.
62. And Brumfield fails to specifically articulate an ineffective
assistance claim in this regard.
828
63. Mitchell, 2006 OK CR 20, ¶ 87, 136 P.3d at 706 (emphasis in original).
64. Brumfield simply notes that, while presiding over his trial,
Judge Burgess “overruled defense counsel’s motion to suppress, interjected his own objections to defense counsel’s statements and questions, and reprimanded defense counsel in the presence of the jury.”
Brumfield also notes that the judge failed to instruct on the lesser
offense of simple manufacturing. This Court has already addressed
the suppression and lesser-offense instruction issues; and none of the
cited examples, even considered cumulatively, establish that the trial
judge was biased against Brumfield or that his trial was unfair.
65. Brumfield attempts to throw in an “alternative” ineffective
assistance (backup) claim, but does nothing to develop it.
66. See Burks v. State, 1979 OK CR 10, ¶¶ 11-20, 594 P.2d 771, 77475, overruled on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922.
67. In addition, Brumfield’s jury was correctly instructed regarding the limited purpose of “other crimes” evidence.
68. See Romano v. State, 1995 OK CR 74, ¶ 21, 909 P.2d 92, 109.
69. During questioning by defense counsel, Officer Milner volunteered that while meeting with Tiffany Hyde, he talked to her about
“the people who manufacture and distribute methamphetamine” and
about how “when they get young girls such as herself . . . [who themselves take methamphetamine] . . . how they become basically slaves
to these people, for pervert . . .” Defense counsel objected at this point
and argued that the testimony was an evidentiary harpoon. (Thus
Brumfield preserved this claim in the trial court.) Although the trial
court overruled the objection, since defense counsel had asked the preceding question, the trial court did not allow Milner to finish his
answer, and the issue was not mentioned again.
70. See, e.g., Royal v. State, 1971 OK CR 442, ¶ 2, 490 P.2d 777, 777
(“This Court has repeatedly held that as the recitations of the Affidavit
and of the Search Warrant were with reference to the offense charged,
admission of the Affidavit and Search Warrant as independent evidence was prejudicial error.”) (citations omitted).
71. See Short v. State, 1999 OK CR 15, ¶ 29, 980 P.2d 1081, 1095
(denying relief where admission of actual search warrant and accompanying affidavits was not objected to at trial and where evidence contained therein was “merely cumulative to other evidence already
before the jury”).
72. See 22 O.S.2001, §2002; see also Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1063).
LUMPKIN, V. P.J.: CONCUR IN PART, DISSENT IN PART
¶1 I concur with the outcome the Court
reaches today, insofar as it affirms Appellant’s
conviction and sentence for Aggravated Manufacture of a Controlled Dangerous Substance
and reverses Count II, following the State’s
concession of error. However, I dissent to the
Court’s reasoning, which includes lengthy
dicta on proposition one concerning the
“knock and announce” issue and a so-called
“more expansive” interpretation of our state
statutes and constitution than that available
vis-à-vis the federal constitution’s fourth
amendment. I find these eight pages of dicta
are not only unnecessary, but are also wrong,
confusing, and in the long run counter
productive to our overall jurisprudence.
¶2 As this Court in Long1 and DeGraff2 long
ago recognized, the substance of Article 2, §30
is “identical” to that of the Fourth Amendment
to the U.S. Constitution, the former being
“almost an exact copy” of the latter. For that
reason this Court has consistently interpreted
these provisions as two sides of the same coin.3
Vol. 78 — No. 10 — 3/24/2007
¶3 Historically, we could have originally
interpreted our state constitution different
than the U.S. Constitution, but we did not. Our
jurisprudence now binds us to that interpretation. If we are to adhere to the concept of the
“Rule of Law”, then we must be consistent in
the application of the law as formulated
through its historical development.
¶4 While the Oklahoma Supreme Court’s
decision in Turner v. City of Lawton4 may be
interesting, in the law review sense, it has little
or no relevance to the case before us.5 The decision, insofar as the criminal law is concerned,
is pure dicta. Moreover, the state Supreme
Court failed to acknowledge or apply this
Court’s consistent interpretation of Art. 2, §30
being in line with the Fourth Amendment, an
interpretation that dates back to statehood.6
Thus, the Court missed or disregarded the historical development of our Constitutional
interpretation in criminal cases. Using that case
here, then, is an exercise in futility.
2007
Celebrating the Legacy
of Oklahoma City University
School of Law
Please join us as we recognize and honor
our distinguished alumni. Proceeds from
The Legal Affair will help fund scholarships
at OCU School of Law.
¶5 Indeed, the opinion admits its lengthy
analysis of the exclusionary rule is dicta, i.e.,
“we need not decide whether the search of Mr.
Brumfield’s home violated Oklahoma law or
whether such a violation necessarily requires
that the evidence discovered in the subsequent
search be suppressed.” The opinion then
proceeds to find the alleged error was waived.7
Honoring
•••••••••••••••
Professor Alvin Harrell ’72
Justice Marian P. Opala Award
for Lifetime Achievement in Law
Nona Lee ’95
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¶6 In my opinion, however, the case can be
disposed of under the statute on the basis that
officers knocked and announced their presence, but were refused admittance. 22
O.S.2001, §1228(1).
1. 1985 OK CR 119, ¶¶5-6, 706 P.2d 915, 916-17.
2. 1909 OK CR 82, 2 Okl.Cr. 519, 528, 103 P. 538, 541 (1909).
3. See my writings on similar claims in Harris v. State, 1989 OK CR
15, ¶ 2, 773 P.2d 1273, 1275; Dennis v. State, ¶ 2, 1999 OK CR 23, 990
P.2d 277, 287.
4. 1986 OK 51, 733 P.2d 375.
5. More interesting, however, is how today’s opinion would use a
twenty-year old decision from a state court with no criminal jurisdiction to maneuver around Hudson v. Michigan, __ U.S. __, 126 S.Ct. 2159,
165 L.Ed.2d 56, a 2006 decision of the highest court of the land.
6. Indeed, while citing to three of our cases, the Oklahoma
Supreme Court was simply arguing that we had adopted the exclusionary rule, in light of U.S. Supreme Court decisions construing the
Fourth Amendment. Those U.S. Supreme Court decisions did not end
in 1986, but have continued, as demonstrated by Hudson v. Michigan.
7. Because the issue raised is disposed of on waiver, the opinion’s
discussion of the “knock and announce” rule, resolves nothing in the
case and is as pertinent to our appellate jurisdiction as my own
thoughts on, say, pop culture.
Bob Burke ’79
Distinguished Law Alumnus
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Skirvin Hilton Hotel
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Vol. 78 — No. 10 — 3/24/2007
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829
A National Symposium Presented by Oklahoma City University
School of Law in Celebration of Law Day 2007
Congress’ New – and Future – Law of Counterterrorism:
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Friday, April 20, 2007
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In the five years since the terrorist attacks of Sept. 11, 2001, the
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Military Commissions Act and other very recent national security
legislation, has top counterterrorism experts tackling the biggest
questions that have arisen since Sept. 11, 2001.
The Honorable John Richter
Please join Oklahoma City University School of Law and the
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a discussion and analysis of these crucial questions–
featuring key experts on, and shapers of, America’s current
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830
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and Counterespionage
www.okcu.edu/law
THE CROSTHWAIT
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A national symposium presented by Oklahoma
City University School of Law. The conference
is co-sponsored by the Memorial Institute for
the Prevention of Terrorism and has partial
underwriting from The Crosthwait Law Firm
and the OCU School of Law Seminar Fund at
the Oklahoma City Community Foundation.
Vol. 78 — No. 10 — 3/24/2007
Court of Civil Appeals Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
IN THE SUPREME COURT OF THE STATE
OF OKLAHOMA
Wednesday, February 28, 2007
The following cases are assigned to the Court
of Civil Appeals Oklahoma City, Divisions 1
and 3. The judges serving in the Oklahoma City
Divisions are Carol M. Hansen, Glenn D.
Adams, Larry E. Joplin, Kenneth L. Buettner, E.
Bay Mitchell, III and Robert Dick Bell. The
judges sit in three-judge panels which rotate
periodically, but all assigned cases will be
decided by three of the above named judges.
Any party may seek disqualification of any
judge pursuant to Okla.Sup.Ct.R. 1.175, 12
O.S.2001, Ch. 15, App. 1 and 20 O.S. 2001
§§ 30.3, 1401 and 1402.
103,156 Matter of Guardianship of Mary
Marie Sweetin: Sandra K. Clark &
Fred P. Gilbert v. Robert S. Post, etc.
103,279 Terry Don Lucas v. Deborah Lynn
Lucas.
103,330 Dept of Transportation v. Hugh
Edward Robinson et al.
103,444 Neil & Karen Thomas v. Morris Barrow.
103,347 Doyle Wilson v. Patrick & Nancy
Drew.
103,576 In the Matter of Expungement of the
Record of: Jeff Alan Buechler aka Jeffrey Alan Buechner.
104,283 Dilworth Development Co., Inc. v.
Board of Co Commissioners of County of Kay, Oklahoma.
104,307 David Allen Drew v. Harrah Public
Schools & Glen Williams.
The proceedings are to be governed by Oklahoma Supreme Court Rules, Part V, Appeals
Assigned to Court of Civil Appeals. 12 O.S.
2001 Ch. 15, App. 1. Until the Court of Civil
Appeals has made its final disposition, all
motions, petitions and other paperwork shall
be filed with the Clerk of the Supreme Court
who serves ex officio as the clerk of the Court of
Civil Appeals room B-2, State Capitol, Oklahoma City, Oklahoma, 73105.
Vol. 78 — No. 10 — 3/24/2007
DONE BY ORDER OF THE SUPREME
COURT this 28th day of February, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
Wednesday, March 7, 2007
102,726 Hampton v. Hampton.
102,753 Sumner v. McDaniel, et al.
103,360 Brightwell v. City of Tulsa, OK, et al.
103,404 Spencer v. Oklahoma Gas & Electric.
103,416 Griffin, May of City of Choctaw, OK
v. City of Choctaw.
103,975 Poole v. Goodyear Tire & Rubber Co.,
et al.
103,761 Glover et al v. St Ok, Oklahoma Dept
of Transportation.
104,292 Stripling et al v. Aramark, Inc.
COURT this 7th day of March, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
102,034
102,708
103,481
103,560
103,733
Thursday, March 15, 2007
Linda Barrett v. Jose Correa & Jose
Correa, Jr.
Donna M. Chesney, Per Rep v. Holley
Thompson Easley et al.
Sonny Lauren Harmon v. Glynn
Booher, Warden etc.
Deborah Yost v. Matthew Yost.
Susan Ivy Clark & Patti Rodgers v.
New Directions, Inc.
831
103,822 Amy Lynne Lindsey v. Brian Jerome
Lindsey.
104,025 Gentiva Health Services, Inc. v. Stella
Patricia Miller & WCC.
104,035 Boyce Manor Nursing Home v.
Jennifer R. Kaylor & WCC.
104,142 Verdina Sisco v. Oklahoma Farmers
Union Mutual Ins. Co.
104,270 Discover Bank v. Rae S. Worsham.
/s/
James R. Winchester
CHIEF JUSTICE
The following cases are assigned to the Court
of Civil Appeals Tulsa, Divisions 2 and 4. The
judges serving in the Tulsa Divisions are John F.
Reif, Keith Rapp, Jerry L. Goodman, Jane P.
Wiseman, Doug Gabbard, II and John F. Fischer. The judges sit in three-judge panels which
rotate periodically, but all assigned cases will
be decided by three of the above named judges.
Any party may seek disqualification of any
judge pursuant to Okla.Sup.Ct.R. 1.175, 12 O.S.
2001, Ch. 15, App. 1 and 20 O.S. 2001 §§ 30.3,
1401 and 1402.
102,543 Raper Trucking LLC v. Phil Clifton
dba The Auction Company.
103,397 ST OK, Dept of Human Services,
Child Support Enforcement Division
v. Jimmie L. Bost.
103,961 Mercy Memorial Health Center et al v.
Christy D. Tahermandarjani & WCC.
103,986 Harold “Buck” Flores v. Galen Shores.
103,992 Brenda Stone v. Megan Rae Kirkpatrick.
104,044 Keith Bean v. State of Oklahoma.
104,271 First Horizon Home Loan Corp v.
John K. & Shaney Owen, et al.
832
104,274 Ray Eidemiller v. Pamela Lipscomb.
COURT this 28th day of February, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
102,563 St Ok, Dept of Human Services Child
Support Enforcement v. Kinnaman.
102,680 Feddersen v. Feddersen.
103,688 JMA Energy Co. v. Chesapeake
Exploration, L.P.
103,943 Rhonda Keller etc. v. Frazier et al.
103,944 Kuykendall et al v. Thomas Wise et al.
103,945 Angela K. Jones v. St. of Ok.
103,959 Borg Warner Morse TEC & Travelers
Ins. v. Ricky Lee Walters & WCC.
103,029 McCrabb et al v. Chesapeake Energy
Corp et al.
/s/
James R. Winchester
CHIEF JUSTICE
102,433 Customer Credit Corporation
Donna M. McCaslin/Shatto.
102,565 Ester McGalliard v. W.R. Johnson.
v.
Vol. 78 — No. 10 — 3/24/2007
103,135 Linda Williams v. ST OK, Dept of
Human Services.
103,136 Beverly J. Davis v. ST OK, Dept of
Human Services.
103,203 Ray Mitchell Norris v. Thirty Four
Thousand, Four Hundred Eighty-Six
Dollars ($34,486.00) in US Currency.
103,968 Advanced Warnings, Inc. & Ins. Co. of
St of Pennsylvania v. Joseph Glennon
& WCC.
104,010 Sharrazonne Coy v. Crest Discount
Foods & WCC.
104,317 (Cons w/104,318) Shawmut Bank NA
et al. v. Fourth Street Associates, et al.
104,320 Mortgage Electronic Registration Systems Inc. v. Clayvan M. McFadden et
al.
104,339 Mastercraft Floor Covering v. The Sullivan Source, Inc., et al.
COURT this15th day of March, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
2006 OK CIV APP 150
RELIABLE REFERRING SERVICE, INC.,
Plaintiff/Appellee, v. ASSESSMENT
BOARD, OKLAHOMA EMPLOYMENT
SECURITY COMMISSION,
Defendant/Appellant.
No. 102,186. March 19, 2007
ORDER CORRECTING OPINION
The opinion of this Court, issued on August
22, 2006, is hereby corrected as follows:
pursuant to 40 O.S. Supp. 2005 § 3-111A.
An issue raised in the petition in error, but
not addressed in the brief[s], is deemed
waived.4 Okla. Sup. Ct. R. 1.11(k)(1), 12
O.S.2001, ch 15, app. The Commission’s
determination that Service is the successor
employer to Agency is therefore affirmed.5
SO ORDERED this 15th day of March, 2007.
/s/ John F. Reif
JOHN F. REIF,
Acting Presiding Judge,
Division IV
2007 OK CIV APP 20
THE STATE OF OKLAHOMA ex rel.
RICHARD L. DUGGER, DISTRICT
ATTORNEY FOR BECKHAM COUNTY,
STATE OF OKLAHOMA, and the
DISTRICT II DRUG TASK FORCE,
Plaintiffs/Appellees, v. TWELVE
THOUSAND DOLLARS ($12,000.00) CASH,
Defendant, and RALPH PASSALACQUA,
Claimant/Appellant.
No. 98,995. January 30, 2007
APPEAL FROM THE DISTRICT COURT OF
BECKHAM COUNTY, OKLAHOMA
HONORABLE DOUG HAUGHT, TRIAL
JUDGE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
Dennis Smith, DISTRICT ATTORNEY, Daniel
C. Jacobsma, ASSISTANT DISTRICT ATTORNEY, Sayre, Oklahoma, for Plaintiffs/
Appellees,
M. Michael Arnett, THE ARNETT LAW FIRM,
Oklahoma City, Oklahoma, for Claimant/
Appellant.
OPINION BY JOHN F. FISCHER, JUDGE:
¶1 Ralph Passalacqua appeals from the Trial
Court’s denial of his request for a jury trial in a
civil forfeiture proceeding. Based on our
review of the record on appeal and applicable
law, we reverse and remand for further
proceedings.
BACKGROUND FACTS
Paragraph 9 is corrected to read as follows:
Service, in its Petition in Error, contested
the Commission’s determination that it
was an “acquiring employer” of Agency
Vol. 78 — No. 10 — 3/24/2007
¶2 On February 27, 2002, Passalacqua and
companion Robert James Dolan were stopped
for speeding in Beckham County, Oklahoma.
As a result of the stop, both men were arrested
833
on suspicion of drug trafficking and twelve
thousand dollars ($12,000) in cash was confiscated from their rental vehicle along with a
small amount of suspected marijuana and
other items that were consistent with drug trafficking. The Beckham County District Attorney filed a petition seeking forfeiture of the
cash pursuant to 63 O.S.2001 § 2-503(A)(6)
alleging, based on the sworn affidavit of the
arresting officer, that the cash was intended to
be used to purchase marijuana.
¶3 Both men were served but only Passalacqua appeared in the Trial Court. Passalacqua
filed an answer in which he denied that the
cash was intended to be used to purchase marijuana. The matter was set for hearing on October 29, 2002. On October 14, 2002, Passalacqua
filed a motion to enter the matter on the Trial
Court’s jury docket. On November 1, 2002, the
Trial Court denied Passalacqua’s request for a
jury trial.1
¶4 On January 15, 2003, the Trial Court conducted the trial of the District Attorney’s petition for forfeiture of the $12,000. At the beginning of that proceeding, Passalacqua again
requested that the matter be tried to a jury. The
Trial Court noted its previous ruling, Passalacqua’s appeal of that ruling, the Supreme
Court’s non-dispositive pronouncement on the
jury trial issue and proceeded to try the case
without a jury. At the conclusion of that trial,
the Trial Court found that the evidence supported the District Attorney’s petition and
granted the request for forfeiture of the
$12,000. The Trial Court’s Order memorializing that ruling was filed February 14, 2003. The
sole issue raised in Passalacqua’s timely
appeal from that Order is whether the Trial
Court erred in refusing to grant his request for
a jury trial.
STANDARD OF REVIEW
¶5 The Trial Court concluded that the applicable statute, 63 O.S.2001 § 2-506, did not
require a jury trial in forfeiture proceedings.
Passalacqua argues that he was guaranteed the
right to a jury trial by the Seventh Amendment
to the United States Constitution and Article 2,
§ 19 of the Oklahoma Constitution. We review
the Trial Court’s determination of these legal
issues de novo. State ex rel. Dep’t. of Human
Servs. v. Baggett, 1999 OK 68, ¶ 4, 990 P.2d 235,
238.
834
DISCUSSION
I. The Statutory Forfeiture Provisions
¶6 The State’s petition sought forfeiture of
the cash under the “Enforcement and Administrative Provisions” of the Uniform Controlled Dangerous Substances Act, 63 O.S.2001
§§ 2-501 through 2-511.2 The provisions of
these civil statutes call for seizure and forfeiture of items used in relation to the illegal manufacture or distribution of controlled substances. Section 2-503 of the Act identifies
“[p]roperty subject to forfeiture,”3 and provides that all items forfeited under the section
“shall be forfeited under the procedures established in Section 2-506 of this title.” 63 O.S.2001
§ 2-503(D).
¶7 Title 63 O.S.2001 § 2-506 provides, in
pertinent part:
A. Any peace officer of this state shall
seize the following property:
1. Any property described in subsection A of Section 2-503 of this title. Such
property shall be held as evidence until a
forfeiture has been declared or release
ordered, except for property described in
paragraphs 1, 2 and 3 of subsection A of
Section 2-503 of this title;
....
B. Notice of seizure and intended forfeiture proceeding shall be filed in the
office of the clerk of the district court for
the county wherein such property is seized
and shall be given all owners and parties in
interest.
....
D. Within forty-five (45) days after the
mailing or publication of the notice, the
owner of the property and any other party
in interest or claimant may file a verified
answer and claim to the property
described in the notice of seizure and of the
intended forfeiture proceeding.
E. If at the end of forty-five (45) days
after the notice has been mailed or published there is no verified answer on file,
the court shall hear evidence upon the fact
of the unlawful use and shall order the
property forfeited to the state, if such fact
is proved.
F. If a verified answer is filed, the forfeiture proceeding shall be set for hearing.
Vol. 78 — No. 10 — 3/24/2007
G. At a hearing in a proceeding against
property described in paragraphs 4
through 6 of subsection A or subsections B
and C of Section 2-503 of this title, the
requirements set forth in said paragraph or
subsection, respectively, shall be satisfied
by the state by a preponderance of the
evidence.
H. The claimant of any right, title, or
interest in the property may prove a lien,
mortgage, or conditional sales contract to
be a bona fide or innocent ownership interest and that such right, title, or interest was
created without any knowledge or reason
to believe that the property was being, or
was to be, used for the purpose charged.
....
N. If the court finds that the state failed
to satisfy the required showing provided
for in subsection G of this section, the court
shall order the property released to the
owner or owners.
The Trial Court reviewed this statute and
determined that there was nothing in the language that specifically required the jury trial
requested by Passalacqua, and we do not find
that interpretation unreasonable based on a
plain reading of the statute. While the statute
does require a “hearing,” the term “jury trial”
is not used.
¶8 The governing principle in statutory construction is legislative intent. Rout v. Crescent
Pub. Works Auth., 1994 OK 85, 878 P.2d 1045;
City of Chandler v. State ex rel. Dep’t of Human
Servs., 1992 OK 137, 839 P.2d 1352. This intent
is ascertained from the whole act in light of its
general purpose and objective. Rout, 1994 OK
85 at ¶ 10, 878 P.2d at 1050 (footnotes omitted).
Nonetheless, the law abhors forfeitures, and
statutes authorizing forfeiture of private property are to be strictly construed. State v. Nesbitt,
1981 OK 113, 634 P.2d 1306; Willhite v. Willhite,
1976 OK 17, 546 P.2d 612; Pirkey v. State ex rel.
Martin, 1958 OK 153, 327 P.2d 463.
¶9 Passalacqua prevails in this appeal if he
can establish that either the statute, the United
States Constitution or the Oklahoma Constitution requires a jury trial in this forfeiture proceeding. Although the Trial Court correctly
observed that the language of the statute does
not unequivocally specify a jury trial, we find
the constitutional issue dispositive.
Vol. 78 — No. 10 — 3/24/2007
II. The Seventh Amendment
¶10 The Seventh Amendment provides: “In
Suits at common law, where the value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact
tried by a jury, shall be otherwise re-examined
in any Court of the United States, than according to the rules of the common law.” U.S.
Const. amend. VII. Where Congress creates a
new statutory right but does not specify a
statutory remedy, the parties retain their common law remedies: “[T]he ordinary common
law remedy carries with it its ordinary incident
of jury trial.” U.S. v. One 1976 Mercedes Benz
280S, 618 F.2d 453, 458 (7th Cir. 1980). Federal
jurisprudence makes clear that, “the Seventh
Amendment created no new right to jury trial
but merely preserve[d] the right to jury trial in
cases where it was enjoyed under pre-existing
law.” Id. at 456.
¶11 Historically, forfeiture was a civil proceeding in rem in which the property utilized
in the criminal enterprise was treated as being
guilty of wrongdoing independent of the
owner’s or user’s conduct. Id. at 454; U.S. v.
Real Prop. Located At 2101, 2280, 2401 and 2501
Maple Street, 750 F.Supp. 817 (E.D. Mich. 1990).
Summary confiscation and destruction of private property declared to be a nuisance was
also a well-recognized exercise of governmental authority, at least where the property was of
“trifling value.” Lawton v. Steele, 152 U.S. 133,
141, 14 S. Ct. 499, 502 (1894).
¶12 Critical to this analysis, however, is the
nature of the property seized.
Courts have recognized two classes of
cases of contraband subject to forfeiture by
statute. The first class is contraband per se,
which are things that may be forfeited
because they are illegal to possess and not
susceptible of ownership. . . . The second
class is derivative contraband, which are
things that may be forfeited because they
are instrumentalities of a crime, but which
ordinarily are not illegal to possess.
Mims Amusement Co. v. South Carolina Law
Enforcement Div., 621 S.E.2d 344, 348 (S.C. 2005)
(citing, among other cases, State ex rel. Brett v.
Four Bell Fruit Gum Slot Machines, 1945 OK 261,
162 P.2d 539, ordering the forfeiture of illegal
slot machines).
¶13 The forfeiture of contraband per se is a
proceeding in rem to which no right to jury trial
exists. Moore v. Brett, 1943 OK 101, 137 P.2d 539.
835
That proceeding determines the ownership
rights to the contraband and is binding on “the
whole world,” Dearing v. State ex rel. Comm’rs of
Land Office, 1991 OK 6, ¶ 21, 808 P.2d 661, 667,
because contraband per se cannot be owned by
anyone. Four Bell Fruit Gum Slot Machines, 1945
OK 261 at ¶ 1, 162 P.2d at 540.
¶14 Where the property subject to forfeiture
is not contraband per se, the issue is whether
the property was used as an integral part of a
crime. Absent proof of the criminal connection,
the property is not subject to forfeiture. 63
O.S.2001 §§ 2-503(A)(1); 2-503(A)(2); and 2-506.
Forfeiture proceedings with respect to this
kind of property are quasi in rem because they
determine the rights to the property between
or among competing interests. See Epperson v.
Halliburton Co., 1967 OK 212, 434 P.2d 877.
Those interests include: (1) the right of the state
to confiscate the property if it was used in a
crime, Moore, 1943 OK 101 at ¶ 7, 137 P.2d at
540-41; (2) the right of the criminal defendant
to claim the property was not used to commit
a crime, Brown v. State ex rel. Hester, 1939 OK
207, 92 P.2d 351; and (3) the right of the owner
or interest holder to claim the property
because it was used in the criminal activity
without permission or knowledge, Shawnee
Nat’l Bank v. United States, 249 F. 583 (8th Cir.
1918). It is with the second class of non-contraband property that we are concerned in this
case.
¶15 The proper seventh Amendment inquiry
concerning the forfeiture of property that is not
contraband per se is whether under English
and American practice prior to ratification of
the Bill of Rights on December 15, 1791, courts
utilized jury trials “in civil proceedings in rem
for enforcement of statutory forfeitures in violation of customs laws or other statutes.” One
1976 Mercedes Benz, 618 F.2d at 458. “[B]oth
English and American practice prior to 1791
recognized [jury] trial of in rem actions at common law as the established mode of determining the propriety of statutory forfeitures on
land for breach of statutory prohibitions.” Id.
at 466.
¶16 Consequently, the United States
Supreme Court has repeatedly recognized that
the claimant in cases involving property that is
not contraband per se is entitled to a jury trial.
The Sarah, 21 U.S. 391 (1823); C.J. Hendry Co. v.
Moore, 318 U.S. 133, 152-53, 63 S. Ct. 499, 509-10
(1943); Garnharts v. U.S., 83 U.S. 162 (1872).
836
After conducting a thorough review of early
forfeiture cases, the United States Court of
Appeals for the Seventh Circuit concluded that
when the forfeiture was prosecuted pursuant
to federal law the property claimant’s Seventh
Amendment right to a jury trial was
“inescapable.” One 1976 Mercedes Benz 280S,
618 F.2d at 466.
¶17 However, this case is not prosecuted
pursuant to federal forfeiture statutes. Further,
the Seventh Amendment’s guarantee of a jury
trial in civil forfeiture cases is not applicable to
the states. City of Monterey v. Del Monte Dunes
at Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 1624
(1999); Van Oster v. Kansas, 272 U.S. 465, 47 S.
Ct. 133 (1926); Walker v. Sauvinet, 92 U.S. 90
(1875); Elliott v. City of Wheat Ridge, 49 F.3d 1458
(10th Cir. 1995); GTFM, L.L.C. v. TKN Sales, Inc.,
257 F.3d 235 (2nd Cir. 2001). Consequently,
Passalacqua’s assertion of a Seventh
Amendment right to jury trial in this case fails.
III. The Oklahoma Constitution
¶18 The Oklahoma Supreme Court has previously found that various federal constitutional rights govern civil forfeiture proceedings in Oklahoma. Citing Austin v. United
States, 509 U.S. 602, 620-21, 113 S. Ct. 2801, 2811
(1993), our Court has held that civil forfeiture
is penal in nature, and therefore, the “excessive
fines” clause of the Eighth Amendment to the
United States Constitution applies to forfeitures prosecuted pursuant to 63 O.S.2001 § 2503. State ex rel. Dep’t of Pub. Safety v. 1985 GMC
Pickup, 1995 OK 75, ¶¶ 12-13, 898 P.2d 1280,
1283.4
¶19 Austin held that the Eighth Amendment
applied to forfeitures prosecuted pursuant to
federal statutes because they were part of the
punishment for the crime. The notion of punishment cuts across the division between the
civil and the criminal law. Austin, 509 U.S. at
610, 113 S. Ct. at 2805-06 (citing U.S. v. Halper,
490 U.S. 435, 447-48, 109 S. Ct. 1892, 1901
(1989)). “Thus, the question is not . . . whether
forfeiture under [federal statutes] is civil or
criminal, but rather whether it is punishment.”
Id., 113 S. Ct. at 2806. “[F]orfeiture generally
and statutory in rem forfeiture in particular historically have been understood, at least in part,
as punishment.” Id. at 618, 113 S. Ct. at 2810.
Language within the federal statute permitting
an “innocent owner” defense “serve[s] to focus
the provisions on the culpability of the owner
Vol. 78 — No. 10 — 3/24/2007
in a way that makes them look more like punishment, not less.” Id. at 619, 113 S. Ct. at 281011. The Oklahoma Supreme Court has held
that this standard applies to civil forfeiture
proceedings in state court. 1985 GMC Pickup,
1995 OK 75 at ¶¶ 12-13, 898 P.2d at 1283. Clearly, the $12,000 at issue in this case would not
have been subject to seizure absent its probable
connection to the crime for which Passalacqua
was arrested.
¶20 In Turner v. City of Lawton, 1986 OK 51,
733 P.2d 375, the Oklahoma Supreme Court
barred forfeiture of property seized in violation of Article 2, § 30 of the Oklahoma Constitution and its corresponding exclusionary rule.
The Court found that it was not limited by federal constitutional law if that law was “too
restrictive for application under the standards
of Oklahoma’s fundamental law.” Turner, 1986
OK 51 at ¶ 15, 733 P.2d at 380.
¶21 But here we are not concerned with
determining whether Oklahoma’s Constitution provides more protection than the Seventh Amendment, because federal law
requires a jury in these circumstances. Our
analysis of the Oklahoma Constitution is
required because the Seventh Amendment
does not provide Passalacqua a right to trial by
jury in this state court civil proceeding.
¶22 Article 2, § 19 of the Oklahoma Constitution provides, in part:
The right of trial by jury shall be and
remain inviolate, except in civil cases
wherein the amount in controversy does
not exceed One Thousand Five Hundred
Dollars ($1,500.00), or in criminal cases
wherein punishment for the offense
charged is by fine only, not exceeding One
Thousand
Five
Hundred
Dollars
($1,500.00).
The nature of the right guaranteed by this provision:
has reference to the right as it existed in the
territories at the time of the adoption of the
Constitution, and the right to a jury trial
therein referred to was not predicated
upon the statutes existing in the territories
at that time, but the right as guaranteed
under the United States Constitution and
according to the course of the common
law.
Vol. 78 — No. 10 — 3/24/2007
Keeter v. State ex rel. Saye, 1921 OK 197, ¶ 0, 198
P. 866, 866 (Syllabus 1). Passalacqua’s right to a
jury trial is, therefore, dependent on the existence of that right at common law when the
Oklahoma Constitution was adopted.
¶23 Our previous examination of federal law
is, consequently, relevant to determining the
state of the law in 1907. As the Seventh Circuit
has throughly documented, the conclusion
that the right to a jury in civil in rem forfeiture
proceedings existed prior to 1791 is
“inescapable.” One 1976 Mercedes Benz 280S,
618 F.2d at 466. We have found nothing in our
research to suggest that the federal government subsequently abrogated that right. Consequently, at least with the passage of the
Organic Act in May of 1890, the right to a jury
trial in civil in rem forfeiture proceedings existed in the Oklahoma and Indian Territories. See
Organic Act §§ 28, 31, 2001 Okla. Stat., vol. 1.
Writing in 1921, the Oklahoma Supreme Court
concluded in Keeter that the right still existed
in 1907.
It is undisputed that the Constitution of
the United States and the common law
were in force throughout the Indian Territory and the territory of Oklahoma upon
the admission of Oklahoma into the Union,
and the rule at that time was that in the
trial of all causes that did not invoke the
equitable or admiralty jurisdiction of the
courts the party litigant was entitled to a
jury trial.
Keeter, 1921 OK 197 at ¶ 6, 198 P. at 871.
¶24 Keeter decided the constitutionality of
Section 2, ch. 188, of the Session Laws of 1917,
which provided:
The court having jurisdiction of the property so seized shall without a jury order an
immediate hearing as to whether the property so seized was being used for unlawful
purposes, and take such legal evidence as
are offered on each behalf and determine
the same as in civil cases. . . .
Keeter involved the forfeiture of an automobile
in which illegal liquor allegedly had been
transported.
¶25 The Court had no difficulty recognizing
the well-settled common law principle that
property “ordinarily used for unlawful purposes and . . . decreed to be a nuisance per se
may be forfeited without a trial by jury.” Keeter,
837
1921 OK 197 at ¶ 6, 198 P. at 870. Equally well
settled, however, was that the “Constitution of
this state protects the citizen and his property,
lawfully acquired and lawfully possessed, to
the extent of guaranteeing to him a jury trial
when the accusation is made that he has
diverted his property from its ordinary lawful
use to an illegal use.” Id. The same result was
reached in Hoskins v. State ex rel. Crowder, 1921
OK 260, 200 P. 168, holding that: “In an action
to forfeit an automobile under chapter 188,
Session laws 1917, wherein the claimant of said
automobile, or party interested in same, files
proper pleadings, raising an issue of fact sufficient to constitute a defense to a right of the
state to forfeit said property, such party is entitled to a jury trial.” Id. at ¶ 0, 200 P. at 168 (Syllabus 3).5 See also State ex rel. Zimmerman v. One
Black with Purple Trim Ford Flareside Truck, 1998
OK CIV APP 57, ¶¶ 8-9, 960 P.2d 844, 846-47
(noting that Keeter has not been overruled and
is, therefore, binding on the appellate courts).
¶26 There are differences between section 2506 and the statutes declared unconstitutional
in Keeter and Hoskins. Most notably, the statute
we review no longer contains the specific prohibition to a jury trial that Keeter found constitutionally objectionable. Nonetheless, we do
not find that those differences dictate a different result. If a property claimant appears in a
civil forfeiture proceeding concerning
property that is not contraband per se and
raises questions of fact by way of defense:
[T]here is no escape from the conclusion
that in a proceeding of [that] kind under
the law as it existed prior to statehood the
claimant would as a matter of right have
been entitled to a trial by jury according to
the course of the common law and the federal Constitution, and that being true, that
right under the Constitution of this state
remains with the claimant in such
proceedings, and the Legislature is
without power to take away from the
citizen that protection.
Keeter, 1921 OK 197 at ¶ 6, 198 P. at 870.
¶27 Further, the holding in Keeter is consistent with the significant weight of authority
from other states that have addressed this
issue. See e.g. Idaho Dep’t of Law Enforcement v.
Real Prop. Located in Minidoka County, Idaho, 885
P.2d 381 (Idaho 1994) (holding that civil forfeiture absent right to jury trial violated Idaho
Constitution); Maine v. One 1981 Chevrolet
Monte Carlo, 728 A.2d 1259 (Me. 1999) (Maine
838
Constitution recognizes a right to a trial by
jury for parties in interest in a civil forfeiture
proceeding); People ex rel. O’Malley v. 6323
North LaCrosse Ave., 634 N.E.2d 743 (Ill. 1994)
(Illinois Constitution guarantees right to a jury
trial in civil forfeiture proceeding involving
real property allegedly used to facilitate drug
trafficking); Pennsylvania v. One Z-28 Camaro
Coupe, 610 A.2d 36 (Pa. 1992) (Pennsylvania
Constitution entitled owner of property, seized
in a civil forfeiture, to a jury trial); Dep’t of Law
Enforcement v. Real Prop., 588 So.2d 957 (Fla.
1991) (forfeiture of property seized must be
decided by jury trial); People v. One 1941
Chevrolet Coupe, 231 P.2d 832 (Cal. 1951) (state
constitution grants right to a jury trial for civil
forfeitures of derivative contraband); Oregon v.
1920 Studebaker Touring Car, 251 P. 701 (Or.
1926) (a jury trial is a prerequisite to the forfeiture of an automobile in which liquor was
found); Colon v. Lisk, 47 N.E. 302 (N.Y. 1897)
(seizure statute violates state constitution by
failing to provide for a jury); Massachusetts v.
One 1972 Chevrolet Van, 431 N.E.2d 209 (Mass.
1982) (right to jury trial existed at common law
and preserved by state constitution); Plimpton
v. Town of Somerset, 33 Vt. 283 (Vt. 1860) (state
statute making referee’s report prima facie evidence of the facts reported violated common
law right to a trial by jury).
¶28 Of the cases we reviewed, only courts in
Michigan and Georgia reached a different
result. Swails v. Georgia, 431 S.E.2d 101 (Ga.
1993), cert. denied, 510 U.S. 1011, 114 S. Ct. 602
(1993) (right to jury trial not recognized in
common law forfeitures, therefore not guaranteed by Georgia Constitution); In re Forfeiture of
$1,159,420, 486 N.W.2d 326 (Mich. Ct. App.
1992), cert. denied sub nom., Hawkins v. Michigan,
510 U.S. 867, 114 S. Ct. 189 (1993) (the right to a
jury trial under state constitution did not apply
to civil forfeiture because no such right existed
at the time of adoption of the constitutional
guarantee). However, it is not clear from Georgia’s examination of that state’s drug forfeiture
proceedings whether the item seized was contraband or property found associated with
criminal activity. Wisconsin has approved the
analysis applied in Keeter but concluded that
its deceptive advertising law was not recognized at common law and, therefore, its legislature’s failure to require a jury trial in forfeiture proceedings pursuant to that statute was
fatal to the state’s request for a jury trial. Wisconsin v. Ameritech Corp., 517 N.W.2d 705 (Wis.
Ct. App. 1994), review granted 524 N.W.2d 138
(1994), aff’d, 532 N.W.2d 449 (Wis. 1995). There-
Vol. 78 — No. 10 — 3/24/2007
fore, our examination of the judicial landscape
throughout the states reveals that only Michigan has found no right to jury trial in these circumstances.
¶29 Finally, Passalacqua’s request for a jury
trial presents the issue that was not present in
State v. One Thousand Two Hundred Sixty-Seven
Dollars, 2006 OK 15 at ¶ 5, 131 P.3d at 119-20,
where both parties moved for summary judgment. There, the Court found no constitutional
impediment to summary disposition because
neither party requested a jury trial and summary adjudication would only be appropriate
if no factual issues existed that were triable to
a jury. Id. at ¶¶ 22-25, 131 P.3d at 125.
¶30 In contrast, neither party moved for
summary judgment in this case and Passalacqua repeatedly asserted his right to a jury trial.
The existence of factual issues in this case is
underscored by the Trial Court’s comments at
the conclusion of the trial, in which it is clear
that the weight of Passalacqua’s testimony
compared to the testimony of the arresting officer was a critical, if not the determinative factor in the Trial Court’s decision. While we do
not disagree with the Trial Court’s evaluation
of the evidence, the Oklahoma Constitution
guarantees Passalacqua the right to have a jury
make that determination.
CONCLUSION
¶31 Trial by jury in civil cases involving
more than $1,500 is guaranteed by Article 2,
§ 19 of the Oklahoma Constitution. That
constitutional guarantee applies in forfeiture
proceedings of property that is not contraband
per se conducted pursuant to 63 O.S.2001
§ 2-506. The Trial Court erred, therefore, in
denying Passalacqua’s request for a jury trial.
The judgment of the Trial Court is reversed,
and this case is remanded for further proceedings consistent with this opinion.
¶32 REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
WISEMAN, P.J., and GOODMAN, J., concur.
1. Passalacqua filed a petition in error on December 3, 2002, Case
No. 98,592, and sought to stay the bench trial. The Oklahoma Supreme
Court denied the request to arrest the bench trial proceeding. On its
own motion, the Court dismissed the appeal on January 6, 2003 for
lack of an appealable order.
2. Several of these sections have recently been amended. We will
refer to the versions in effect at the time of Passalacqua’s arrest.
3. Section 2-503(A) provides:
The following shall be subject to forfeiture:
1. All controlled dangerous substances which have been
manufactured, distributed, dispensed, acquired, concealed or
possessed in violation of the Uniform Controlled Dangerous
Substances Act . . .;
Vol. 78 — No. 10 — 3/24/2007
2. All raw materials, products, and equipment of any kind
and all drug paraphernalia . . . which are used, or intended for
use, in manufacturing, compounding, processing, delivering . . .
injecting, ingesting, inhaling or otherwise introducing into the
human body any controlled dangerous substance . . .;
3. All property which is used, or intended for use as a container for property described in paragraphs 1 and 2 of this subsection;
4. All conveyances . . . which are used to transport, conceal,
or cultivate for purposes of distribution . . .;
5. All books, records and research . . .;
6. All things of value furnished, or intended to be furnished,
in exchange for a controlled dangerous substance . . .all proceeds
traceable to such an exchange, and all monies, negotiable instruments, and securities used, or intended to be used, to facilitate
any violation of the [Act];
7. All monies, coin and currency found in close proximity to
forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia . . .;
8. All real property . . . which is used, or intended to be used
. . . to commit . . . a violation of the [Act] which is punishable by
imprisonment for more than one (1) year . . .; and
9. All weapons possessed, used or available for use in any
manner to facilitate a violation of the [Act].”
4. The Court has also noted that among the due process guarantees
applicable in forfeiture proceedings is a decision based on the record.
State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15,
n.37, 131 P.3d 116, 124, n.37 (citing R. Rotunda & J. Nowak, Treatise on
Constitutional Law: Substance and Procedure, § 17.8, p. 646 (2d ed.
1992)). In State ex rel. Macy v. Four Thousand Two Hundred Sixty Dollars
and No/100 ($4,260.00), 1996 OK 96, 925 P.2d 50, the Court held that due
process required constitutionally sufficient notice in forfeitures pursuant to section 2-506.
5. Cf., Maryland Nat’l Ins. Co. v. District Court, 1969 OK 73, 455 P.2d
690, determining that a surety of a forfeited bail bond in a criminal
case was not entitled to a jury trial because sureties did not have that
right at common law. We find that case distinguishable to the extent it
was not concerned with the civil forfeiture of property used in connection with criminal activity. Nonetheless, the Court in Maryland
acknowledged the holding in Keeter and applied the same analytical
framework.
2007 OK CIV APP 21
WESTERN HEIGHTS INDEPENDENT
SCHOOL DISTRICT NO. I-41 OF
OKLAHOMA COUNTY,
Petitioner/Appellant, v. THE STATE OF
OKLAHOMA ex rel. OKLAHOMA STATE
DEPARTMENT OF EDUCATION,
OKLAHOMA STATE BOARD OF
EDUCATION, and SANDY GARRETT,
STATE SUPERINTENDENT OF PUBLIC
INSTRUCTION FOR THE STATE OF
OKLAHOMA, Respondents/Appellees.
No. 103,302. October 19, 2006
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE PATRICIA G. PARRISH,
TRIAL JUDGE
AFFIRMED
Jerry L. Colclazier, Amie Rose Colclazier, COLCLAZIER & ASSOCIATES, Seminole, Oklahoma, for Petitioner/Appellant,
Kay Harley, STATE DEPARTMENT OF EDUCATION, Oklahoma City, Oklahoma, for
Respondents /Appellees.
OPINION BY CAROL M. HANSEN, JUDGE:
839
¶1 On December 20, 2005, Appellee, Western
Heights Independent School District No. I-41
[School] filed its Petition in the trial court seeking judicial review of a determination by
Appellees, Oklahoma State Department of
Education, Oklahoma State Board of Education, and the State Superintendent of Public
Instruction [collectively Department], which
denied School’s appeal from placement on the
“School Improvement List” by Department
pursuant to Department’s implementation of
the federal No Child Left Behind Act (the Act),
20 U.S.C. §§ 6301 et seq. We hold the trial court
correctly dismissed School’s Petition because it
was not filed within the statutory time allowed
and affirm.
¶2 In its Petition, School alleged Department
is charged under the Act with development,
submission, and implementation of school
accountability standards and reporting.
Department has carried out this mandate
through the Oklahoma School Accountability
System, promulgated in the Oklahoma Administrative Code at Section 210:10-13-18 and the
Academic Performance Index (API) at Section
210:10-13-20. Schools which fail to meet API
benchmarks must make Adequate Yearly
Progress (AYP) or be subject to sanctions set
forth in Section 210:10-13-18.
¶3 The School Accountability System regulations require that AYP Data Reports be provided to school districts for their review and
reporting of any discrepancies “in previously
approved data pieces.” The regulations also
provide that school districts may appeal AYP
determinations in the Data Reports at this
time. School alleges that on September 27,
2005, it made such an appeal to Department
based on Department’s arbitrary and capricious categorization of School as failing to
make AYP and placing School on the School
Improvement List. The Petition reflects that on
October 17, 2005, Department denied School’s
appeal because it was not “based on substantial or statistical criteria.” School complains
that it was not afforded a hearing or other
“substantive due process” during the appeal
or in the “format of the ruling rendered
denying the appeal.”
¶4 Department moved to dismiss School’s
Petition for failure to state a claim upon which
relief could be granted in accordance with 12
O.S.2001 §2012 (B)(6). Department argued
School cited no legal authority for the requested relief and that no denial of a fundamental
right was identified in the Petition. In response,
840
School argued it was subject to possible sanctions by Department’s improper classification
of it as having failed to make AYP and the Act
requires a hearing for accountability determinations. School further argued Department’s
actions were subject to the Oklahoma Administrative Procedures Act (APA), 75 O.S. 2001
§§250 et seq., citing Patrick v. State ex rel. State
Bd. of Educ., 1992 OK CIV APP 153, 842 P.2d
767.
¶5 More specifically, School argued the
applicability of §§306 or 322 of the APA, which
provide, respectively, [a] that the validity or
applicability of an agency rule may be determined in an action for declaratory judgment in
the district court, or [b] that an agency order
may be modified, set aside or reversed upon
determination by judicial review that a petitioners substantial rights have been prejudiced. School contends the “threatened application” of Department’s regulations, which
might result in sanctions, and the arbitrary and
capricious accountability determination by
Department, gave the trial court authority to
hear its complaint.
¶6 In reply to School’s response to its motion
to dismiss, and in support of that motion,
Department asserted its regulations were
developed pursuant to the federal mandates of
the Act and adopted in compliance with the
APA, and have no requirement for a hearing
on accountability determinations. Department
also asserts School has cited no specific statutory requiring a hearing for accountability
determinations and that this process is not
subject to judicial review under the APA. Thus,
Department argues, School has no recourse to
the APA review procedures.
¶7 Department also argues, however, that
should the APA be determined to be applicable
here, School’s Petition was untimely pursuant
to §318 of the Act and the trial court had no
jurisdiction to hear School’s request for review.
Section 318 provides for judicial review of final
agency orders in individual proceedings and
requires the petition to be filed in the district
court within thirty days after the appellant is
notified of the order. Department noted
School’s Petition was filed some sixty four days
after it denied School’s appeal.
¶8 The trial court, without specific findings,
ordered School’s Petition dismissed with prejudice and School moved for a new trial. The
trial court denied School’s motion and School
appeals. Generally, a trial court’s order from
Vol. 78 — No. 10 — 3/24/2007
review of an agency determination must be
affirmed if the agency’s determination is supported by substantial evidence and the order is
otherwise free of error. Aple Auto Cash Express,
Inc. of Oklahoma v. State ex rel. Oklahoma Dept. of
Consumer Credit, 2003 OK 89, 78 P.3d 1231.
Here, the dispositive facts relating to timeliness of School’s filing its Petition are undisputed. The question is whether the thirty day limitation period in §318 of the APA applies. We
find that it does.
¶9 The APA was found to apply to Department in Patrick v. State ex rel. State Bd. of Educ.,
supra. Patrick was an appeal from a State Board
of Education determination which imposed
conditions on the appellant’s continued certification as a school superintendent. Department
seeks to distinguish Patrick because “no such
property interest in the right to engage in a
profession is present.” In view of the substantial sanctions which may be imposed upon
School under Department’s School Accountability System, we do not agree. School was
entitled to the full processes required for
agency actions under the APA, including a
hearing, before Department finally determined
School failed to make AYP.
¶10 That being said, it was School’s responsibility to file its Petition seeking review of
Department’s final determination within the
thirty day limitation period imposed by §318
of the APA. Its failure to do so was jurisdictional and the trial court had no power to
decide the case. Conoco, Inc. v. State Dept. of
Health of State of Okl., 1982 OK 94, 651 P.2d 125.
Nor was declaratory judgment available to
School because such an action in accordance
with §306 of the APA would have had to be
brought to challenge Department’s accountability rules before entry of Department’s final
order. Id., at 130. After the order is issued, it
“can be appealed only by way of the provisions in §318.” Id., at 131. School seeks to distinguish Conoco, arguing Department’s determination was not a final order because it did
not afford School an “individual proceeding”
as defined under APA requirements. However,
whether School was denied the substantive
rights due under the APA is the essence of its
appeal, and it forfeited its right to consideration of that question when it failed to timely
file its Petition.
¶11 Because the trial court correctly dismissed School’s Petition, it did not abuse its
discretion when it denied School’s motion for
new trial. Dominion Bank of Middle Tennessee v.
Vol. 78 — No. 10 — 3/24/2007
Masterson, 1996 OK 99, 928 P.2d 291, 294.
Accordingly, the trial court’s orders dismissing
School’s Petition and denying School’s motion
for new trial are AFFIRMED.
BELL, P.J., and JOPLIN, J., concur.
2007 OK CIV APP 22
IN THE MATTER OF K.N.L., A DEPRIVED
CHILD. KEVIN N. LATHAM,
Respondent/Appellant, v. STATE OF
OKLAHOMA, Petitioner/Appellee.
No. 103,304. January 30, 2007
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE ROGER H. STUART, TRIAL
JUDGE
AFFIRMED
Valerie L. Baker, Oklahoma City, Oklahoma,
for Respondent/Appellant,
C. Wesley Lane II, DISTRICT ATTORNEY,
Lory K. Oller, ASST. DISTRICT ATTORNEY,
Oklahoma City, Oklahoma, for Petitioner/
Appellee.
DOUG GABBARD II, PRESIDING JUDGE:
¶1 Appellant, Kevin Latham (Father),
appeals from a trial court order terminating his
parental rights to his child, K.N.L., following a
jury trial. We affirm.
FACTS
¶2 On July 4, 2002, two-year-old K.N.L. was
taken into protective custody by the Department of Human Services (DHS) after the
child’s mother (Mother) was arrested on a
charge of destruction of property. Mother and
Father had been separated since 2001, and
Mother was living with her boyfriend.
¶3 A week later, the State of Oklahoma
(State) filed a petition alleging that K.N.L. was
deprived because Mother had been unable to
provide a suitable home and the home was
unfit due to domestic violence. The petition
also alleged that Father had failed to establish
a meaningful relationship with, and had failed
to provide financial support for, his child.
Mother eventually stipulated to the deprived
adjudication, and her parental rights were subsequently terminated.
¶4 When the petition was first filed, State
was unaware of Father’s location. Father, now
841
living in Texas, was aware of the pending
action as early as August 2002, but did not contact the court regarding the matter. In May
2003, he was incarcerated in a Texas prison for
violating the terms of his probation on an
aggravated assault charge. In December 2003,
State learned of his incarceration. Aware that
Father had a history of substance abuse, State
amended the petition to allege that K.N.L. was
also deprived due to Father’s substance abuse
and criminal history.
¶5 Father was released from prison in January 2004 and immediately contacted the court.
He agreed to a voluntary service plan, and
exercised monthly visitation with K.N.L. until
September 2004. At that time, State learned
that Father was using methamphetamine
again, and temporarily suspended visitation.
At State’s request, an adjudication hearing was
held on December 13, 2004. Father stipulated
to the allegations of State’s amended petition,
and the court adjudicated K.N.L. deprived as
to Father on grounds that Father had failed to
provide proper parental care and guardianship, that his home was unfit due to substance
abuse and a history of criminal activity, and
that he was incarcerated when the child was
placed in DHS custody.
¶6 In January 2005, the Court adopted a
treatment plan requiring Father to enroll and
actively participate in substance abuse, domestic violence, and anger management treatment.
Father was also required to take a parenting
skills course, maintain employment, attend
Alcoholics Anonymous/Narcotics Anonymous meetings, have random urinalysis testing, provide a safe home environment for his
child, visit his child, and have monthly contact
with DHS. Father had one more visit with
K.N.L. on January 20 or 21, 2005. Thereafter, he
had no further visits or contacts with K.N.L.
After March 2005, he also had no further contact with his DHS worker. In April 2005, he
failed to appear for a hearing in the juvenile
case. In May 2005, his Texas parole was
revoked for failing to report, and he was again
incarcerated. After learning that Father was
again in prison, State filed an amended petition requesting termination of Father’s
parental rights on the grounds of abandonment and failure to correct the conditions
leading to the deprived adjudication.
¶7 In March 2006, a jury trial was held on the
petition to terminate parental rights. Because
842
Father was incarcerated in Texas, he was
unable to attend the trial. However, he was
represented by court-appointed counsel and
his testimony was presented by way of deposition. At the conclusion of the trial, the jury
found that the allegations of the petition to terminate were true and that termination was in
the best interests of the child. The trial court
subsequently entered an order terminating
Father’s parental rights. Father now appeals,
arguing that his constitutional rights were
violated by trial in his absence and that the
evidence presented was insufficient to justify
termination.
STANDARD OF REVIEW
¶8 In reviewing a claim that the procedure
used in a termination hearing resulted in a
denial of a constitutional right, such as due
process, appellate courts review the issue de
novo. “De novo review requires an independent, non-deferential re-examination of another
tribunal’s legal rulings.” In re A.M. & R.W.,
2000 OK 82, ¶ 6, 13 P.3d 484, 487. In examining
whether there is sufficient evidence to support
an order terminating parental rights, we
review the record for clear and convincing evidence in support of the decision to terminate.
See In re S.B.C., 2002 OK 83, ¶ 6, 64 P.3d 1080,
1082-83. “Clear and convincing evidence is
that measure or degree of proof which will
produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegation sought to be established.” In re C.G.,
1981 OK 131 n.12, 637 P.2d 66, 71.
ANALYSIS
¶9 Father initially presents several arguments to support his contention that conducting the termination hearing while he was
involuntarily absent violates his constitutional
rights to due process, equal protection, and
confrontation. State responds that these same
arguments were resolved in In re Rich, 1979 OK
173, 604 P.2d 1248. In that case, the father was
incarcerated in a Texas prison and unable to
attend the Atoka County, Oklahoma, trial to
terminate his parental rights. The Father was
represented by court-appointed counsel and
could have, but did not, seek to present a deposition of his testimony at trial. On appeal of
the termination order, he alleged violations of
his rights to due process, equal protection, and
confrontation of his adversary. The Oklahoma
Supreme Court held:
Vol. 78 — No. 10 — 3/24/2007
The Father’s presence at these proceedings was not the only effective means
of fairly meeting the issues. He was hence,
by his absence, denied no opportunity for
a fair and just hearing. Courtroom confrontation with one’s civil adversary is not
required either by due process or other
constitutional strictures.
Id. at ¶ 13, 604 P.2d at 1253. Father admits that
the Rich case is applicable, but argues that
intervening decisions, which he does not
name, cast doubt upon Rich’s continued application.
¶10 In the 27 years since Rich was decided, a
number of federal and state decisions have
addressed the due process required for termination hearings. In 2000, the Oklahoma
Supreme Court held that arguments challenging due process should be reviewed using a
two-step inquiry: “whether the individual possessed a protected interest to which due
process applies and if so, whether the individual was afforded an appropriate level of
process.” In re A.M. & R.W., 2000 OK 82 at ¶ 7,
13 P.3d at 487 (citing Daniels v. Williams, 474
U.S. 327, 332, 106 S. Ct. 662 (1986).
¶11 Parents clearly have a constitutionally
protected liberty interest in the parent-child
relationship. See In re D.D.F., 1990 OK 89, 801
P.2d 703. However, determining the appropriate level of process which is due is more problematic. The only absolute due process requirements in a termination case are prior notice of
the hearing, an opportunity to be heard, and
the right to effective assistance of counsel. See
id.; Tammie v. Rodriguez, 1977 OK 182, 570 P.2d
332. We review other procedural claims by
determining whether the party was afforded
the essence of procedural due process, that is,
a “meaningful and fair opportunity to
defend.” In re A.M., 2000 OK 82 at ¶ 9, 13 P.3d
at 487. Due process is not a static concept, but
is determined according to the facts and circumstances of each case. McLin v. Trimble, 1990
OK 74, 795 P.2d 1035 (citing Mathews v.
Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 90203 (1976)).
¶12 In determining whether a particular trial
procedure gave a meaningful and fair opportunity to defend, the Oklahoma Supreme
Court has adopted the Mathews1 three-part balancing test: First, a court must consider the private interest that will be affected by the state’s
Vol. 78 — No. 10 — 3/24/2007
action; second, the court must consider the risk
of erroneous deprivation of the interest posed
by the procedures used and the probable
value, if any, that additional or substitute procedures would provide; and third, the court
must consider the governmental interest at
stake, including any administrative and fiscal
burdens that alternate procedures would generate. See In re A.M., 2000 OK 82 at ¶ 10, 13 P.3d
at 487-88.
¶13 The first and third parts of this test were
considered by the Kansas Court of Appeals in
In re J.L.D., 794 P.2d 319 (Kan. Ct. App. 1990),
wherein it is stated:
Loss of parental rights is extremely
important, but it should be weighed
against the loss by the child of the right to
a prompt judicial determination of his status. A prisoner serving a lengthy prison
term should not be able to use his due
process rights to foreclose permanently
any severance proceedings.
A child should be afforded the opportunity to have a childhood complete with a
family and caring parents. For J.L.D., his
only hope for parents who can attend to
his needs is through adoption.
Id. at 322.
¶14 This analysis is particularly applicable to
our case. Between the emergency custody
order and Father’s scheduled release from
prison in 2010, eight years of K.N.L.’s young
life will have passed with little contact by the
child’s biological father. Moreover, the child
has clearly expressed a desire for stability, permanency, and adoption. Considering all these
factors, we conclude that Father’s right to be
present at a hearing three years from now is
outweighed by consideration for the child’s
welfare. This finding is consistent with the legislative intent, expressed in 10 O.S.2001 § 70061.1(12), directing trial courts to consider “the
duration of incarceration and its detrimental
effect on the parent/child relationship” as one
of the factors for determining whether the continuation of parental rights would result in
harm to the child.
¶15 The third part of the Mathews test, —
consideration for governmental interests and
alternate procedures — is also easily resolved
in this case. Father cannot be present at trial
until 2010. If the trial court had waited to con-
843
duct a hearing, a total of eight years would
have passed since the child was taken into custody. Both State and the child have a right to an
earlier hearing. Moreover, Father’s physical
presence was not the only effective means he
had to meet the issues involved in this case. He
was represented by counsel and availed himself of the right to present testimony by written
trial deposition. He could have testified by
videotape. He could have conferred with his
attorney by telephone concerning the progress
of the case, in order to assist with jury selection, cross examination, and trial tactics. It may
have been possible for him to actively participate during the trial by telephone or video.
Present technologies present far greater opportunities for participation than were available
when Rich was decided in 1979. Ultimately,
Father fails to demonstrate how his absence
constitutionally violated his due process rights
in relation to jury selection,2 cross-examination
of witnesses, presentation of evidence, or his
defense generally.
(abrogated on other grounds in Baker v. Marion
Co. Office of Family & Children, 810 N.E.2d 1035
(Ind. 2004)); In re J.S., 470 N.W. 2d 48 (Iowa Ct.
App. 1991); In re J.L.D., 794 P.2d 319 (Kan. Ct.
App. 1990); In re Randy Scott B., 511 A.2d 450
(Me. 1986); In re Vasquez, 501 N.W.2d 231
(Mich. Ct. App. 1993); In re H.G.B., 306 N.W.2d
821 (Minn. 1981); In re F.H., 283 N.W.2d 202
(N.D. 1979); Najar v. Oman, 624 S.W.2d 385
(Tex. Ct. App. 1981); State v. Vargas,736 P.2d
1031 (Utah Ct. App. 1987); In re Darrow, 649
P.2d 858 (Wash. Ct. App. 1982); In re Adoption of
J.L.P., 774 P.2d 624 (Wyo. 1989).
¶16 We also find no violation of Father’s
right to equal protection under the Fourteenth
Amendment, or to confront and cross-examine
witnesses under the Sixth Amendment. There
is no disparity in treatment between parents
incarcerated in-state and those incarcerated
outside the state. In-state prisoners have no
greater right to appear in court termination
proceedings than those incarcerated in another
state. See In re Rich, 1979 OK 173, 604 P.2d 1248.
Furthermore, the Sixth Amendment’s right of
confrontation applies only to criminal cases,
not to civil trials. See Barber v. Page, 390 U.S.
719, 88 S. Ct. 1318 (1968); Kiddie v. Kiddie, 1977
OK 69, 563 P.2d 139; In re A.M., 2000 OK 82 n.7,
13 P.3d at 487.
¶19 DHS worker Michelle Boyer testified
that she was assigned to K.N.L.’s case in 2004,
and stated that, although Father completed a
portion of his treatment plan, he failed to substantially complete the plan or correct the conditions leading to K.N.L.’s deprived adjudication. Boyer testified that Father did not attend
approved substance abuse counseling, did not
undergo domestic violence treatment, had not
been subject to random urinalysis testing, had
not provided evidence of regular employment,
had not stayed in monthly contact with her,
and had been re-incarcerated. She also testified
that Father had not visited K.N.L. since January 2005, that continued foster care placement
was not in K.N.L.’s best interests, and that
termination of Father’s parental rights was.
¶17 We conclude that Rich is still viable. An
incarcerated parent does not have an absolute
constitutional right to be present at a termination hearing, if through the exercise of reasonable diligence his presence cannot be secured
within a reasonable time period and alternate
effective procedures are available to protect his
or her fundamental right to “meaningful
access” and an opportunity to defend. Nearly
every other jurisdiction that has considered the
question has reached the same result. See, e.g.,
Valero v. State Dept. of Human Res., 511 So. 2d
200 (Ala. Civ. App. 1987); In re Jesusa V., 85 P.3d
2 (Cal. 2004); J.T. v. Marion Co. Office of Family &
Children, 740 N.E.2d 1261 (Ind. Ct. App. 2000)
844
¶18 Father also contends that the jury verdict
and order of termination are not supported by
clear and convincing evidence. The jury found
termination of Father’s parental rights authorized on grounds of abandonment (10 O.S.2001
§ 7006-1.1(A)(2)) and failure to correct the conditions leading to the deprived adjudication
(10 O.S.2001 § 7006-1.1(A)(5)). The jury heard
the testimony of five witnesses.
¶20 DHS worker Randy Lack testified that
K.N.L. had been in four foster care placements,
and that the latest appeared to be successful.
Lack testified that Father had only visited the
child approximately 15 times during the last
four years, practically all of those visits occurring between March 2004 and January 2005.
Lack testified that the child called Father
“Kevin,” not “Dad,” that the child does not ask
about Father, and that the child had indicated
a desire to be adopted by her foster parents.
Lack also testified that Father had not attempted to contact K.N.L. during Father’s present
period of incarceration, and that it would not
Vol. 78 — No. 10 — 3/24/2007
be in the child’s best interests to have to wait
until 2010 to attempt reunification with Father.
¶21 Melody and Raymond Hill testified that
they had been the child’s foster parents since
October 2004. Ms. Hill testified that the child
initially had kicking and screaming fits, but
was now happy and compliant. Ms. Hill also
testified that K.N.L. cried and did not want to
attend the last visit with Father in January
2005. Finally, she testified that K.N.L. wants a
family and “wants to know that that’s where
she belongs and that she’s always going to
belong there.”
¶22 In his deposition, Father admitted using
methamphetamine over several years, including the period when he lived with Mother. He
testified that he separated from Mother in 2001
and attempted to take K.N.L. with him to
Texas, but Mother refused. He admitted learning of the juvenile action in August 2002, but
did not appear before the Oklahoma court
because an unnamed DHS worker told him
“there was no reason for me to come to court at
that point in time.” He admitted violating his
Texas probation and being incarcerated
between May 2003 and January 2004. He stated that he took a parenting class while he was
in prison. He stated that he immediately contacted DHS after his release from prison. He
admitted violating the service plan with additional illegal drug usage in August 2004. However, he stated that he only used drugs for two
weeks, at which time he alleged that he began
intensive outpatient treatment and random
drug testing. He stated that he had maintained
employment as required by the treatment plan
until May 2005 when he was re-incarcerated
for violating his Texas probation by failing to
report. He stated that he would be eligible for
parole in February 2010. He also testified that
he loved his daughter very much, that he
regretted what he had put her through, and
that he was not willing to give up his parental
rights because he wanted the opportunity to be
a dad again.
¶23 Abandonment justifying termination of
parental rights is defined in 10 O.S.2001 § 70061.1(A)(2)(c) as occurring when:
c. the parent fails to establish and/or
maintain a substantial and positive relationship with the child for a period of six
(6) consecutive months out of the last fourteen (14) months immediately preceding
Vol. 78 — No. 10 — 3/24/2007
the filing of a petition for termination of
parental rights. For purposes of this paragraph, “establish and/or maintain a substantial and positive relationship”
includes, but is not limited to:
(1) frequent and regular contact with
the minor through frequent and regular
visitation and/or frequent and regular
communication to or with the child, and
(2) the exercise of parental rights and
responsibilities.
Incidental or token visits or communications shall not be sufficient to establish
and/or maintain a substantial and positive
relationship with the child[.]
¶24 In this case, Father consistently exercised
visitation with K.N.L. from March 2004
through September 2004. His last visitation
was on January 20 or 21, 2005.3 The petition to
terminate parental rights was filed on June 15,
2005. Thus, the record does not support a finding that Father failed to visit or communicate
with the child for six consecutive months out
of the 14-month period preceding the filing of
the petition to terminate. There also was scant
evidence that Father failed to maintain other
required parental rights and responsibilities
for the statutory period. Accordingly, we find
insufficient evidence to sustain the verdict
based on abandonment.
¶25 In proving that a parent has failed to correct the conditions leading to a deprived adjudication, 10 O.S.2001 § 7006-1.1(A)(5) requires
four findings:
a. the child has been adjudicated to be
deprived, and
b. such condition is caused by or contributed to by acts or omissions of the parent, and
c. termination of parental rights is in the
best interests of the child, and
d. the parent has failed to show that the
condition which led to the adjudication of
a child deprived has been corrected
although the parent has been given not less
than the time specified by Section 7003-5.5
of [Title 10] to correct the condition[.]
¶26 Father does not contest that the first two
parts of the test were met.
845
However, Father contends that he made reasonable efforts to correct the conditions leading to the adjudication, although he was not
totally successful by the trial date. Such evidence may sometimes be sufficient to defeat
termination on this ground. For example, in In
re J.L., 1978 OK 37, ¶ 16, 578 P.2d 349, 351, the
Oklahoma Supreme Court reversed a judgment terminating parental rights where the
evidence as a whole showed the parent “made
sincere and extensive efforts” to change the
conditions leading to the deprived adjudication, although she had not been totally successful. See also In re J.M., 1993 OK CIV APP
121, 858 P.2d 118.
¶27 We find no similar evidence in this case.
Father made little effort to comply with the
treatment plan. He did not complete recommended counseling or provide sufficient proof
thereof, exercise regular visitation, regularly
contact his DHS worker, or refrain from using
drugs. Since the inception of this case in 2002,
Father has twice been incarcerated for probation or parole violations. Father has not made
a substantial effort to correct the conditions
leading to adjudication, is not presently capable of providing for his child’s basic needs, and
will not be capable of meeting those needs for
a substantial period. The evidence clearly supports the jury’s verdict that Father has failed to
correct conditions.
¶28 State must also prove by clear and convincing evidence that termination is in the
child’s best interests. Absent such proof, there
is a presumption that the best interests of the
child are served by leaving the parent-child
bond intact. See In re K.C., 2002 OK CIV APP
58, ¶ 5, 46 P.3d 1289, 1291.
¶29 Here, Father testified that he loves and
cares for K.N.L. and desires to have a relationship and resume parental responsibilities
when released from prison. However, the reality is that he has been unable to do so for
almost all the child’s young life, and that he
will be unable to do so for at least another
three years. When Father is released from
prison in 2010, K.N.L. will be more than 10
years old and will have had virtually no contact with her biological father. We are mindful
that “the paramount consideration in proceedings concerning termination of parental rights
shall be the health, safety or welfare and best
interests of the child.” 10 O.S.2001 § 70061.1(A). K.N.L. desires and deserves what every
child is entitled to: permanency, a stable home,
and loving parents. The record presents clear
and convincing evidence supporting the jury’s
verdict that termination is in the child’s best
interests.
CONCLUSION
¶30 For the reasons set forth above, the order
of termination is hereby affirmed.
¶31 AFFIRMED.
GOODMAN, J., and REIF, J., concur.
1. We note that Mathews was specifically applied by the U.S.
Supreme Court to termination proceedings in Santosky v Kramer,455
U.S. 745, 102 S. Ct. 1388 (1982). The Oklahoma Supreme Court adopted the Mathews test in Wood v. Ind. Sch. Dis. No. 141, 1983 OK 30, 661
P.2d 892.
2. In one of his propositions of error, Father specifically claimed
that his absence was in violation of due process because it prevented
proper jury selection. In In re C.J., 2005 OK CIV APP 66, 121 P.3d 1119,
another division of this Court found that a parent’s involuntary
absence during jury selection at her termination trial was not a violation of due process.
3. See State’s Exhibit 5, pages 2-3.
STAFF ATTORNEY – OKLAHOMA CITY MUNICIPAL DEFENDERS OFFICE
Legal Aid Services of Oklahoma, Inc., is seeking an Attorney for its
Oklahoma City Municipal Defenders Law Office
The attorney will be responsible for cases involving motion practice and jury trials. Applicants are
required to have a J.D. from an accredited law school, and be admitted to practice in Oklahoma. Must
have litigation experience. Experience with indigent individuals a plus. Salary is according to Legal
Aid’s salary administration plan. Generous benefits including health, dental, life, pension plan, etc.
Applicants should complete Legal Aid's application, available for printing at this website and a
resume to: Bud Cowsert, Director of Operations, 2901 Classen Blvd., Suite 110, Oklahoma City, OK
73106 or FAX to (405) 488-6111. Applications will be accepted through April 6 and thereafter until
filled. Legal Aid is an Equal Opportunity/Affirmative Action Employer.
846
Vol. 78 — No. 10 — 3/24/2007
2007 OBA DAY
AT THE
CAPITOL
Tuesday, March 27
Mingle with members of the
Oklahoma Legislature at the
OBA Day at the Capitol –
a full day of opportunities
for bar members to visit with
legislators about the OBA
legislative agenda.
Meet at the Oklahoma Bar
Center at 10 a.m.
for the day’s briefing.
Talk to your legislators over a
barbecue lunch provided by
the OBA at the Capitol.
At 5 p.m., a legislative
reception will be held at the
bar center for both bar
members and legislators.
More information
available at
www.okbar.org
Vol. 78 — No. 10 — 3/24/2007
847
OBA SOLO AND SMALL FIRM CONFERENCE
& YLD MIDYEAR MEETING
J U N E 2 1 - 2 3 , 2 0 0 7 • TA N G L E W O O D R E S O R T • L A K E T E X O M A
DAY 1 • Friday, June 22
8:25 a.m.
Welcome
Stephen D. Beam
OBA President
8:30 a.m.
50 Tips in 50 Minutes
Laura Calloway, Dan Pinnington
and Jim Calloway
9:20 a.m.
Break
9:30 a.m. 11:00 a.m.
Plenary
Session
11:00 a.m.
11:10 a.m.
to Noon
Noon
1:00 p.m. 1:50 p.m.
THE OBA
SUMMER
GET-A-WAY
The Nine Steps for
Making Money and
Staying Out of
Trouble from Womb
to Tomb
Jay G. Foonberg
Break
Secrets to the Profitable
Small Law Firm
Electronic Evidence &
Electronic Discovery
Nuts and Bolts
of Handling a DUI
Laura Calloway
Eric S. Eissenstat &
Brooks A. Richardson
Sonja Porter
Oh How Do I Cloud Title?
Let Me Count the Ways
Trying the
Automobile Accident Case
D. Faith Orlowski
David Bernstein
Estate Planning Revisions
in Light of Higher
Exemptions
Improving Client Service
and Satisfaction
LUNCH BUFFET
Accounting for Lawyers:
Understanding Financial
Statements, Accounts and
Other Mumbo Jumbo
Craig Combs
1:50-2:00 p.m.
2:00 p.m. 3:00 p.m.
Break
Splitting Up, Then Moving
On: Relocation Headaches
Donelle H. Ratheal
Jim Calloway
Charles E. King
848
Vol. 78 — No. 10 — 3/24/2007
DAY 2 • Saturday, June 23
8:25 a.m.
Welcome
John Morris Williams
OBA Executive Director
8:30 a.m.
Risk Management — How
to Avoid a Malpractice
Claim (Ethics)
Dan Pinnington & Phil Fraim
9:20 a.m.
9:30 a.m.
Break
OSCN, FastCase and
Other Legal
Research Tools
Jury Selection: Pitfalls
and Pratfalls
Accounting for Lawyers
(part 2) Excel with Excel
Brian T. Hermanson &
Creekmore Wallace
Dan Pinnington
Why Law Firms Fail
(And How to Avoid It)
Vehicles of
Charitable Giving
Parenting Tips for the
Working Professional
Laura Calloway, Dan Pinnington
and Jim Calloway
Charles E. King
Melanie Jester, Moderator
Jody Nathan
10:20 a.m.
10:30 a.m.
11:30 a.m.
11:30 a.m.
12:30 p.m. 1:20 p.m.
Break
Dr. Noel Jacobs
LUNCH BREAK — No Speaker — Hotel Check Out
Who’s Your Daddy? Nuts
and Bolts of the Uniform
Parentage Act
Deposition Workshop
Jack Dawson
Amy E. Wilson
1:30 p.m. 3:10 p.m.
Pet Project — The Only
Property That Will Miss
You When You Are Gone
D. Faith Orlowski
P la n a g e t-a- way
w it h t h e OBA!
What’s Hot and
What’s Not in Running
Your Law Practice
Laura Calloway
Dan Pinnington
Jody Nathan
Jim Calloway
Spend some vacation time with your
family at Tanglewood and still get
all your CLE for the year!
Vol. 78 — No. 10 — 3/24/2007
849
The OBA Summer Get-A-Way
OBA Solo & Small Firm Conference
and YLD Midyear Meeting
June 21-23, 2007 • Tanglewood Resort — Lake Texoma
REGISTRATION FORM:
THIS FORM SHOULD BE TYPEWRITTEN OR PRINTED “LEGIBLY”
Registrant’s Name:___________________________________________OBA#:______________________________________
Address:____________________________________________City/State/Zip:_______________________________________
Phone:__________________________ Fax:_______________________E-Mail:_____________________________________
List name and city as it should appear on badge if different from above:
_____________________________________
Registration Fees: Registration fee includes 12 hours CLE credit, including one hour ethics. Includes all meals: Thursday evening
Poolside Buffet; Breakfast Buffet Friday & Saturday; Buffet lunch Friday & Saturday; Friday evening Ballroom Buffet.
Circle One
Early-Bird Attorney Registration (on or before May 30, 2007)
$175
Late Attorney Registration (May 31, 2007 or after)
$225
Early-Bird Attorney & Spouse/Guest Registration (on or before May 30, 2007)
$275
Late Attorney & Spouse/Guest Registration (May 31, 2007 or after)
$325
Spouse/Guest Attendee Name: ________________________________________________________
Early-Bird Family Registration (on or before May 30, 2007)
$325
Late Family Registration (May 31, 2007 or after)
$375
Spouse/Guest/Family Attendee Names: Please list ages of children.
Spouse/Guest: ______________________________
Family: ________________________Age:_________
Family: ________________________Age:_________
Family: ________________________Age:_________
Materials on CD-ROM only
Total: $______________
Thursday, June 21 • Golf With the BOG • 18 Hole Golf (______ of entries @ $50 ea.)
Total: $______________
Friday, June 22 • Nine Hole Golf (_________ of entries @ $35 ea.)
Total: $______________
Total Enclosed: $______________
Make check payable to the Oklahoma Bar Association. MAIL Meeting Registration Form to:
CLE REGISTRAR, P.O. Box 960063, Oklahoma City, OK 73196-0063. FAX Meeting Registration Form to (405) 416-7092
For payment using
___VISA or ___ Master Card:
CC: _________________________________________________
Expiration Date: ____________________ Authorized Signature: ______________________________________________
No discounts. Cancellations will be accepted at anytime on or before May 30, 2007 for a full refund; a $50 fee will be charged
for cancellations made on or after May 31, 2007. Call 1 (800) 833-6569 for hotel reservations. Ask for the special OBA rate.
850
Vol. 78 — No. 10 — 3/24/2007
OBA Solo & Small Firm Conference and YLD Midyear Meeting
June 21-23, 2007 • Tanglewood Resort - Lake Texoma • (800) 833-6569
HOTEL REGISTRATION FORM
Registrant’s Name:_________________________________________________________ Phone: ______________________________________________
Address: ________________________________________________________________ City/State/Zip: ________________________________________
Spouse/Guest/Family Attendee Names: ______________________________________________________________________________________________
______________________________________________________________________________________________________________________________
Name
Age, if under 21
______________________________________________________________________________________________________________________________
Name
Age, if under 21
______________________________________________________________________________________________________________________________
Name
Age, if under 21
HOTEL INFORMATION
Arrival Day/Date ______________________________________ Departure Day/Date: ________________________________ No. of People __________
Please check room preference:
______ Smoking Room
________ Single Condo $99
________ Non-Smoking Room
________ New Hotel Room $119
______ Tower Suite $129
Special Requests: ____________________________________
CHILDREN ACTIVITIES (3 yrs. & up)
SPOUSE/GUEST ACTIVITIES
FRIDAY, JUNE 22, 2007
FRIDAY, JUNE 22, 2007
9:30 am - 11:30 am: Age Appropriate Crafts
_____ No. $12 each child
$__________
11:30 am - 1 pm: Story Time (lunch included)
$__________
1 pm - 3 pm: Supervised Swimming
$__________
7:30 pm - 10:30 pm: Movies & Popcorn
$__________
9:30 am: Golf
9/$35, 18/$50 (call for tee time)
_____ No. Golfers 9/$35
_____ No. Golfers 18/$50
RECREATIONAL ACTIVITIES
4 Outdoor Swimming Pools & Jacuzzi
2 Lighted Tennis Courts
Playground & Volleyball Court
Belgian Horseback Riding
Croquet & Badminton
Lake Texoma Striper Fishing
SATURDAY, JUNE 23, 2007
9:30 am - 11:30 am: Age appropriate games
$__________
11:30 am - 1 pm: Story Time (lunch included)
$__________
1 pm - 3 pm: Supervised Swimming
$__________
TOTAL for Children
$__________
Private babysitting available for children
3 and under $10 per hour, arrange at front desk.
$__________
$__________
❃❃❃❃❃❃❃❃❃❃
TRANQUILITY SPA
Featuring: Massage Therapy, European Facials, Body
Wraps, Airbrush Tanning…plus much more!
Call 1(800) 833-6569 Ext. 2664
before June 18 to make spa appointment.
See www.tanglewoodresort.com for more hotel recreational activities and spa information.
Cancellations of activities will be accepted 48 hours before arrival date.
Mail or fax entire page to: Tanglewood Resort
Attn: Teresa, 290 Tanglewood Circle, Pottsboro, TX 75076-Fax (903) 786-2128.
Make check payable to the Tanglewood Resort. If paying by credit card please complete:
_____VISA _____ Master Card _____ Discover _____ AMX
Credit Card No.________________________
Authorized Signature:__________________________________
Expiration Date:___________________ HOTEL DEADLINE: MAY 30, 2007
CANCELLATION PENALTY IF ROOM NOT CANCELLED BY 6 P.M. JUNE 15, 2007
Vol. 78 — No. 10 — 3/24/2007
851
Need
direction?
For help with stress, depression or addiction, call
LifeFocus Counseling Services at
(405) 840-5252 or toll-free 1(866) 726-5252.
The OBA offers all bar members up to six hours of free crisis counseling.
It’s strictly confidential and available 24 hours a day.
“I am grateful to the OBA for providing the impetus to take some long delayed action.
Opening the e-mail from OBA regarding Crisis Intervention Services now being available,
on one sleepless night, was like a godsend.”
- An Anonymous OBA Member
852
Vol. 78 — No. 10 — 3/24/2007
Mandates Issued
99,627 Mostafa Tajmirriahi v. Soraya Nasre
Esfahani.
THE SUPREME COURT
Friday, March 2, 2007
102,159 Richard Dwayne Gaither, D.D.S. v.
Board of Dentistry of Oklahoma.
102,316 Charlie Fulton dba Muskogee Speedway v. Muskogee County Fairgrounds Trust Authority.
102,333 Fusion Medical LLC v. Microline, Inc.
100,973 Sandra Agee v. Mark Alan Agee.
101,726 Densi Haworth, Special Administratrix of the Estate of Brett Dwayne
Haworth v. Theodore Jantzen, individually and as partner in Jantzen
Farm & Ranch Enterprises; et al.
102,472 Monica Belinda Zeir v. Zimmer, Inc.,
and Theron S. Nichols, M.D.
101,982 Valerie Ann Williford v. Reynolds
Ford, Inc., dba Reynolds LincolnMercury Inc.
102,622 Tammie Renae Rush v. University
Village Hillcrest Healthcare, LLC,
Travelers Insurance Company and
the Workers’ Compensation Court.
102,141 Phil Graham dba Towingleader
Wrecker v. W. Dan Nelson, Tecla June
Spivey and Jefferson Spivey.
102,639 Eric A. Hamel v. Dr. Jeff Trout, Roy
Adrian, Katryna Frech and Dennis
Cotner.
102,995 Shelley D. Winnicki, now Sanders v.
Charles M. Winnicki, II.
103,012 In the Matter of the Last Will and Testament of Mary Barber Goddard
(known as Mary B. Goddard);
William R. McKinney, John R. McKinney, and James W. McKinney v. David
McKinney, Debbie Fattaahi, Chris
McKinney, Sean McKinney, Stephen
R. Nance and Lyn Y. Nance.
103,401 Mohawk Properties, LLC v. Gregory
V. Copeland v. Rob Cortez.
104,079 Aaron J. Martin and Hazeline Martin,
jointly and severally v. Wentwood
Capital Fund VI LP et al.
104,103 John Lee Green v. City of Claremore,
Compsource Oklahoma and the
Workers’ Compensation Court.
104,139 In the Matter of the Guardianship of
Janet Maureen Carlton, an incapacitated person, Brenda Bruton, in her
capacity as guardian of Janet Maureen Carlton, Deceased v. Newton
O’Connor Turner and Ketchum, P.C.
102,192 Lowonna Jones, individually and as
the Personal Representative of the
Estate of Christopher Williams, Jr.,
her deceased adult son v. Mercy
Health Center, Inc., et al.
102,225 Sherry Taliaferro, individually and as
the Personal Representative of the
Estate of Gus William Taliaferro, Sr.,
Deceased v. Mehran Shahsavari,
M.D..
102,250 In the Matter of Adoption of LDS, a
minor child. Jason Shuler and Norma
Jean Shuler v. Joseph Staton and Jennifer Staton.
102,264 Kimberly Gayle Lofton v. Sherman
Keith Lofton.
102,432 Brad Miller, an individual, Joe Fairless, an individual, Cameron Welch,
an individual, and Chris Miller, an
individual v. Leo Lester Phipps.
102,467 Reuel Wesley Ator v. Board of Education of Owasso Independent School
District No. 11.
102,473 Tamarie Lou Clark fka Stewart v.
Danny Frank Stewart.
102,608 Bill Bland & Virginia G. Walker v.
American Electric Power, Inc. and
Public Services Company of Oklahoma, Inc.
99,481 Robert Cotner v. Melinda Guilfoyle,
Helen Woodall, et al.
102,734 John A. Rooks v. K.W. Lasiter dba L &
L Paving Company.
Vol. 78 — No. 10 — 3/24/2007
853
his official capacity and Administrator of the Oklahoma Health Care
Authority.
102,766 Fayetta Williams v. Family Dollar
Stores of Oklahoma, Inc., et al.
102,769 Jerry Pike, Cheryl Pike, Chris Pike
and Heather Pike v. Oklahoma Natural Gas Company et al.
102,867 Patricia Boranian and Robert Boranian v. Shawn Osborn, an Oklahoma
resident, Swift Transportation Co.,
Inc., an Arizona Corporation and
General Motors Corporation, a
Delaware Corporation.
102,898 Jimia Rae Cain v. Mark Dale Cain.
102,927 Deanna D. Bingham v. Charles L.
Bingham.
102,932 Hong Thi Vue and Lars Pham, as parents and next of kin to Ken Vu Pham,
Deceased v. Linda J. Truitt, M.D. and
Linda J. Truitt, P.C.
102,939 Dana Park Taylor v. Ashley Hicks.
102,948 Victoria Gutman v. Richard Talley.
103,028 Detra L. Bruner, as next of kin of
Leola Bruner (Depp), deceased v.
Timberlane Manor Limited Partnership, and its successor in interest,
Timberlane Manor LLC dba Grace
Living Center.
103,043 Barbara Smith v. Duke Reynolds, II,
Melissa Radke and Kerri Radke Gingerich.
103,087 Dale Leroy Fields v. Oklahoma Highway Patrol; and Claremore Auto
Parts, Inc., dba Claremore Auto Parts
& Salvage.
103,145 In the Matter of RLR. SNR, AJR, AWC
& SC, alleged deprived children.
Cari A. Cope v. State of Oklahoma.
103,415 Billy George Smith, Jr. v. Bar S. Foods,
Richard Laney, Business Staffing,
Inc., Zurich American Insurance
Company, Transglobal Indemnity
Company And The Workers’ Compensation Court.
103,424 Deborah D. Miller v. Michael E.
Miller.
103,453 B.H. by and through her next friend
Connie Hickstein and all others similarly situated v. Oklahoma Health
Care Authority and Mike Fogarty, in
854
103,510 Mortgage Electronic Registration Systems, Inc. v. Virginia L. Case aka Virginia Lee Case and John Doe, her
Spouse, if Married.
103,574 Haywood B. Larkin and Vera V.
Larkin v. Homecomings Financial
Network, Inc. v. Joy Philipose and
Mariamma J. Philipose, husband and
wife.
103,586 Donna J. Lawrence, on her own
behalf & on behalf of all others similarly situated v. Cimarex Energy Co.
103,962 Justin Whitefield v. Clyda Rae
Kennedy Whitefield.
104,155 Rafael Martinez v. Builders Unlimited, Employers Mutual Casualty
Insurance and The Workers’ Compensation.
104,157 Compsource Oklahoma v. Clifford R.
Parnell, Pitch Fork Ranch and The
104,160 KSL Financial Services, LLC dba Ace
Cash Express v. Laser Source, LLC.
104,190 Summit Holdings, Inc. an Oklahoma
corporation and Oklahoma Environmental Inc., an Oklahoma corporation v. Robert Williams and Standard
Testing and Engineering Company
dba Stantech.
104,206 In the Matter of the Estate of Gale E.
Evans, Deceased. Julia A. Evans v.
Robert C. Raymond et al.
104,230 Linda Gillon Post, Personal Representative of the Estate of Kenneth Wayne
Gillon, Deceased v. Oklahoma Nursing Homes, Ltd. et al.
COURT OF CIVIL APPEALS
102,977 In Re the Marriage of Traci Watson,
now Turley v. Kenneth Watson, Jr.
103,400 In the Matter of EB: Deprived child
that is less than 18 years of age:
State of Oklahoma v. Diane Giese.
Vol. 78 — No. 10 — 3/24/2007
103,752 Mark MacFarlane v. State of Oklahoma, ex rel., Department of Public
Safety.
103,913 Ultra Thin, Inc. v. Kevin B. Lane and
Ronnie M. Alexander and Ronnie M.
Alexander v. Kevin B. Lane.
101,503 Charles A. McCall III and Stephanie
McCall, husband and wife v. Roger
Hatridge and Nora Hatridge, husband and wife.
102,036 In the Matter of the Guardianship of
the Person and the Estate of Dana
Lorentz, an incapacitated Person.
Dana Lorentz v. Lorena Pohl and Vina
Wahle.
102,625 Phyllis Jean Spradling-Wassom v.
Claude Jack Wassom.
102,812 Lillie Levinia Cox, nee Smith aka Lillie Smith by and through Jim Cox v.
J.D. Starks, et al.
102,834 Phillip Estrada v. Port City Properties,
Inc., dba Hodges Warehouse.
102,856 Stacy Elizabeth Brown v. Srinath
Vadi.
102,907 Bryan Mitchell Greer v. Sonic Automobile, Inc. and Sonic Bethany H. Inc.
102,961 In re the Marriage of: Cynthia Lynne
Parks v. James Randy Parks.
103,023 D & R Reporting & Video, Inc. v.
Amanda J. Waldron.
103,533 Jack Young Asphalt & Construction
Company, Inc. v. Dayle James, an
individual and First National Bank of
Okmulgee.
103,543 In the matter of J.M.N. David George
Nunez, Father v. State of Oklahoma.
103,544 City of Tulsa v. Charles Eugene Harris
and The Workers’ Compensation
Court.
103,551 Jared Baldwin and Tonya Baldwin,
individually and natural parents and
next of kin of Baby Baldwin v. Ryan
Hawkins.
103,556 Ameriresource Group, Inc. and
Compsource Oklahoma v. Calvin
Stroud and The Workers’ Compensation Court.
103,623 Targir Safarov v. Allstate Insurance
Company, D’Arcangelo Agency aka
David D’Arcangelo Allstate Insurance Company Agency and Melissa
D'Arcangelo Miller.
103,670 Debra L. Billingsley v. Cambridge
Health Care, Inc. and Gary L. Porter,
individually.
103,754 AMS Staff Leasing and Dallas
National Insurance Company v.
Charles Hobbs and The Workers’
Compensation Court.
103,773 National American Insurance Company, an Oklahoma corporation v.
Michael Fanning.
103,091 Raymond A. Sadaka, Jr. v. Amanda
Gayle Sadaka.
103,802 Coverall Central and Commerce and
Industry v. Don H. Tomlinson and
The Workers’ Compensation Court.
103,111 Michelle F. Teeman, (now Kinney) v.
Darin Teeman.
103,833 Robert Morgan v. State of Oklahoma,
ex rel., Department of Public Safety.
103,163 Santrust Bank, Atlanta v. Adair
County Board of Tax Roll Corrections
by and through Adair County Board
of County Commissioners.
103,916 Gordon Kirk and Kelly Kirk v. Roman
Catholic Diocese of Tulsa and Bishop
Edward S. Slattery.
103,184 State of Oklahoma v. Carol Lynn Mire
and Charles Smith.
103,324 Brady D. Guilliam v. MBM Corporation, Travelers Indemnity Company
of America and The Workers’ Compensation Court.
103,503 Delbert White v. Pushmataha County,
Compsource Oklahoma and The
Vol. 78 — No. 10 — 3/24/2007
855
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
SUMMARY OPINIONS
RE-2006-43 — Ronnie Pigorsch, Appellant,
entered a guilty plea to a charge of two counts
of Indecent Exposure and five counts of Lewd
Proposals to a Child Under 16 in Case No. CF1995-5110 in the District Court of Oklahoma
County. Appellant was sentenced to six (6)
years for each of the Indecent Exposure Counts
and sixteen (16) years for each count of Lewd
Proposals to a Child, with all but six (6) years
suspended. On January 3, 2006, Appellant’s
suspended sentences were revoked in full.
From this judgment and sentence, Appellant
appeals. Appellant’s judgment and sentence is
AFFIRMED. Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; A.
Johnson, J., concurs; Lewis, J., concurs.
F-2005-1196 — Darrell Wayne Turner, Appellant, entered a guilty plea to a charge of Possession of a Controlled Dangerous Substance
in Case No. CF-2005-37 in the District Court of
Okmulgee County. Appellant’s sentencing was
deferred and he was ordered to attend Drug
Court. On November 22, 2005, Appellant was
terminated from Drug Court and sentenced to
five (5) years. From this judgment and sentence, Appellant appeals. Appellant’s judgment and sentence is AFFIRMED. Lumpkin,
P.J., concurs; C. Johnson, V.P.J., concurs;
Chapel, J., concurs; A. Johnson, J., concurs;
Lewis, J., concurs.
PCD-2005-1154 — Richard Tandy Smith,
Petitioner, was convicted by a jury for the
crime of First Degree Murder, while in the
commission of Robbery with a Dangerous
Weapon in Case No. CF-1986-394 in the District Court of Canadian County. The jury set
punishment at death after finding the existence of two aggravating factors. Petitioner’s
conviction and sentence on direct appeal was
affirmed. The United States Supreme Court
denied certiorari. Petitioner’s Original Application for Post-Conviction Relief and Request for
Evidentiary Hearing was denied. Petitioner
then sought habeas corpus relief from the United States District Court for the Western district
of Oklahoma, which was denied. Petitioner’s
second Application for Post-Conviction Relief
856
in this Court was dismissed in part and denied
in part. Petitioner filed the instant Third Application for Post-Conviction Relief, and an
accompanying Request for Evidentiary Hearing. Petitioner’s Third Application for PostConviction Relief and Request for Evidentiary
Hearing are DENIED. Opinion by C. Johnson,
V.P.J.; Lumpkin, P.J., concurs in results; Chapel,
J., dissents; A. Johnson, J., concurs; Lewis, J.,
concurs.
RE-2006-211 — Vallon Dwayne Broadus,
Appellant, entered a guilty plea to a charges of
Count 1, Unauthorized Use of a Motor Vehicle,
Count 2, Larceny of Merchandise from a
Retailer, and Count 3, Eluding a Police Officer,
all in Case No. CF-2004-2135 in the District
Court of Tulsa County. Appellant was sentenced to seven (7) years for Count 1, thirty
(30) days for Count 2 and one (1) year for
Count 3. The sentences for Counts 2 and 3
were to run concurrently to the sentence in
Count 1, which was suspended in its entirety.
On February 17, 2006, Appellant’s suspended
sentence was revoked in full. From this judgment and sentence, Appellant appeals. Appellant’s judgment and sentence is AFFIRMED.
Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; A. Johnson, J., concurs; Lewis, J., concur in part/dissent in part.
C-2005-703 — Danny Allen Clements, Petitioner, pled guilty to the crimes of Robbery
with a Dangerous Weapon (Firearm or Imitation Firearm) (Counts 1, 2, 5, and 6), Knowingly Concealing Stolen Property (Count 3), Second Degree Burglary (Count 4), and Possession of a Sawed-off Shotgun (Count 7), in Case
No. CF-2000-198 in the District Court of
Garfield County. The district court sentenced
Clements to a total term of twenty years
imprisonment. Danny Allen Clements seeks a
Writ of Certiorari allowing him to withdraw
his plea. The Petition for Writ of Certiorari is
DENIED. Opinion by A. Johnson, J.; Lumpkin,
Chapel, J., concurs in results; Lewis, J.,
concurs.
RE-2006-531 — James Harley Carter, Appellant, appealed to this Court from an order
issued by the Honorable Ryan D. Reddick,
Vol. 78 — No. 10 — 3/24/2007
Associate District judge, revoking his suspended sentence in part in Case No. CF-2003-2 in
the District Court of Texas County. The order
of partial revocation is DENIED. Lumpkin, P.J.,
concurs; C. Johnson, V.P.J., concurs; Chapel, J.,
concurs in result; A. Johnson, J., concurs;
Lewis, J., concurs.
F-2005-1079 — Appellant Samuel L. Altebaumer was tried by jury and convicted of
Indecent Exposure (Count I) and Child Sexual
Abuse (Count II), Case No. CF-2004-320, in the
District Court of Delaware County. The jury
recommended as punishment five (5) years
imprisonment in each count. The trial court
sentenced accordingly, ordering the sentences
to run consecutively. It is from this judgment
and sentence that Appellant appeals.
AFFIRMED. Opinion by Lumpkin, V.P.J.;
Chapel, P.J., concur in result; C. Johnson, J.,
concur; A. Johnson, J., concur; Lewis, J., concur
in result.
F-2005-1244 — Keith Alan Foreman, Appellant, was tried by jury for the crimes of Second
Degree Burglary (Count I), Knowingly Concealing Stolen Property (Count II), Possession
of a Controlled Substance (Marijuana) (misdemeanor) (Count III) in Case No. CF-05-42A, in
the District Court of Okmulgee County. The
jury returned a verdict of guilty and recommended as punishment seven (7) years imprisonment on Count I, five (5) years imprisonment on Count II, and three (3) months in the
county jail on Count III, with sentences to be
served consecutively. The trial court sentenced
accordingly. From this judgment and sentence
Keith Alan Foreman has perfected his appeal.
AFFIRMED. Opinion by Chapel, J.; Lumpkin,
P.J., concur; C. Johnson, V.P.J., concur; A. Johnson, J., concur, Lewis, J., concur in part/dissent
in part.
F 2006-0102 — Appellant, Laura Lee Wolfe,
pled guilty November 15, 2005, in the District
Court of Caddo County, Case No. CF-2005-157,
to Count 1 — Possession of Controlled Substance — a felony, Count 2 — Possession of
Controlled Substance — a misdemeanor and
Count 3 — Unlawful Possession of Drug Paraphernalia — a misdemeanor. Sentencing was
delayed pending Appellant’s completion of or
termination from the Caddo County Drug
Court program. On December 14, 2005, the
State filed an application to terminate Appellant from the Drug Court program. Following
a hearing January 13, 2006, the Honorable
Vol. 78 — No. 10 — 3/24/2007
Richard G. Van Dyck, District Judge, terminated Appellant from the Drug Court program.
Judge Van Dyck found Appellant absconded
for more than six weeks and terminated her
from Drug Court. Appellant was sentenced to
ten years on Count 1 and one year on Counts 2
and 3. The sentences were ordered to run concurrently. Appellant appeals from the Drug
Court termination order. The termination from
Drug Court in the District Court of Caddo
County, District Court Case No. CF-2005-157
(CFD-2005-157D), is AFFIRMED. Lumpkin,
Lewis, J., concurs.
F-2005-1200 — Randy Scott Littleton, Appellant, entered a no contest plea to a charge of
Unlawful Possession of a Controlled Dangerous Substance (Methamphetamine) in Case
No. CF-1999-531 in the District Court of Bryan
County. Appellant’s judgment and sentence
was deferred for a period of five (5) years, subject to terms and conditions of probation. On
November 30, 2005, Appellant’s deferred sentence was accelerated and he was sentenced to
ten (10) years. From this judgment and sentence, Appellant appeals. The acceleration of
Appellant’s judgment and sentence is
AFFIRMED. Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; A.
Tuesday, March 6, 2007
F-2006-362 — Carl Edward Dickson, Appellant, entered a no contest plea to a charge of
Concealing Stolen Property in Case No. CF1999-6847 in the District Court of Oklahoma
County. Appellant’s judgment and sentence
was deferred for a period of two (2) years, subject to terms and conditions of probation. On
May 18, 2005, Appellant’s deferred sentence
was accelerated and he was sentenced to five
(5) years. From this judgment and sentence,
Appellant appeals. The acceleration of Appellant’s judgment and sentence is AFFIRMED.
Lumpkin, P.J., concurs; C. Johnson, V.P.J., not
participating; Chapel, J., concurs; A. Johnson,
J., concurs; Lewis, J., concur in result.
F-2006-104 — Gregory Elliott Smith, Appellant, was tried by jury for the crime of First
Degree Murder in Case No. CF-2004-637A in
the District Court of Muskogee County. The
jury returned a verdict of guilty and recommended as punishment life in prison with the
possibility of parole. The trial court sentenced
857
Gregory Elliott Smith has perfected his appeal.
AFFIRMED. Opinion by C. Johnson, V.P.J.;
Lumpkin, P.J., concurs; Chapel, J., concurs; A.
F-2005-871 — William Dean Phillips, Appellant, was tried by jury and found guilty in the
District Court of Oklahoma County, Case No.
CF-2003-3131, of Count 1, murder in the first
degree, in violation of 21 O.S.2001, § 701.7(A).
The jury sentenced Appellant to life imprisonment without possibility of parole. The trial
court sentenced accordingly. From this judgment and sentence William Dean Phillips has
perfected his appeal. AFFIRMED. Opinion by
Lewis, J.; Lumpkin, P.J., concurs; C. Johnson,
V.P.J., concurs; Chapel, J., concurs; A. Johnson,
J., concurs.
F-2006-114 — Tuydale Eugene LeFlore,
Appellant, was tried by jury for the crimes of
Second Degree Murder, After Former Conviction of Two Felonies (Count I), Leaving the
Scene of an Accident Involving Damage
(Count II), and Unauthorized Use of a Motor
Vehicle, After Former Conviction of Two
Felonies (Count III), in Case No. CF-2005-317
in the District Court of Pittsburgh County. The
jury returned a verdict of guilty on all Counts
charged and assessed punishment at sixty
years imprisonment on Count I, one year in the
county jail and a $500.00 fine on Count II, and
three years imprisonment on Count III. The
trial court sentenced accordingly, ordering the
sentences to be served concurrently. From this
judgment and sentence Tuydale Eugene LeFlore has perfected his appeal. As to Count I the
Judgment of the district court is AFFIRMED
and the Sentence MODIFIED to thirty years
imprisonment. As to Counts II and III, the
Judgment and Sentence of the district court is
Lumpkin, P.J., concurs in Part/dissents in part;
Lewis, J., concurs.
C-2006-778 — Keenan Wynn Starnes, Petitioner, entered a negotiated plea of nolo contendere to the crime of Child Sexual Abuse in
Case No. CF-2005-509 in the District Court of
Washington County. The court accepted the
plea and, pursuant to the agreement, sentenced Petitioner to twenty years imprisonment with the last ten years suspended. Petitioner filed an Application to Withdraw Plea,
which the district court denied. This appeal
858
followed. The Petition for Writ of Certiorari is
DENIED, and the Judgment and Sentence of
the district court is AFFIRMED. Opinion by C.
Johnson, V.P.J.; Lumpkin, P.J., concurs; Chapel,
J., concurs; A. Johnson, J., concurs; Lewis, J.,
concurs.
F-2005-707 — Appellant Jerry Wayne Bradford was tried by jury and convicted of Robbery with a Dangerous Weapon, After Former
Conviction of Two or More Felonies, Case No.
CF-2002-138 in the District Court of Jackson
County. The jury recommended as punishment thirty (30) years imprisonment and the
trial court sentenced accordingly. It is from this
judgment and sentence that Appellant appeals.
The Judgment and Sentence is AFFIRMED.
The Motion for New Trial is DENIED. Opinion
by Lumpkin, P.J.; C. Johnson, V.P.J., concur;
Chapel, J., concur in result; A. Johnson, J., concur; Lewis, J., concur in result.
C-2005-817 — Shawn Scott Smith, Petitioner,
pled nolo contendere to one count of First
Degree Burglary in Case No. CF-2003-498 in
the District Court of Garfield County. The
Honorable Ronald G. Franklin accepted
Smith’s plea and sentenced him to twenty
years imprisonment. Smith filed a timely
application to withdraw his plea which was
denied following the prescribed evidentiary
hearing. Smith appeals the district court’s
order denying his motion to withdraw plea
and asks this Court to grant a Writ of Certiorari
and allow him to either withdraw his plea and
proceed to trial or favorably modify his sentence. The Petition for Writ of Certiorari is
DENIED and the Judgment and Sentence of
the District Court is AFFIRMED. Opinion by
A. Johnson, J.; Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs in
results; Lewis, J., concurs in results.
Monday, March 12, 2007
F-2005-1086 — Francis Timothy Henry,
Appellant, was tried by jury in Case No. CF2003-6297 in the District Court of Oklahoma
County, for the crimes of First Degree Rape
(Counts 4, 7, 12, 20, 21 and 27), Kidnapping
(Counts 5, 13, 22 and 28), Assault and Battery
with a Dangerous Weapon (Count 6), Robbery
with a Dangerous Weapon (Counts 8 and 14),
Assault with a Dangerous Weapon (Count 23),
Second Degree Rape by Instrumentation
(Count 30), Sexual Battery (Count 31) and
Forcible Oral Sodomy (Count 32). The jury
convicted Appellant of all Counts for which he
Vol. 78 — No. 10 — 3/24/2007
was tried except Counts 14, 28 and 30. The jury
assessed punishment at one hundred years
imprisonment on each of Counts 4, 7, 12, 20
and 21, twenty years imprisonment on Count
32, ten years imprisonment on each of Counts
5, 6, 13, 22 and 23, fifteen years imprisonment
on Count 8 and five years imprisonment on
each of Counts 27 and 31. The Honorable Ray
C. Elliott sentenced Appellant accordingly,
ordering that sentences imposed on Counts 4,
5, 6, 7 and 31 be served concurrently with each
other and consecutively with sentences
imposed on Counts 12 and 13. He ordered that
sentences imposed on Counts 12 and 13 be
served concurrently with each other and consecutively with sentences imposed on Counts
20, 21, 22, 23 and 32. The sentences imposed on
Counts 20, 21, 22, 23 and 32 were ordered to
run concurrently with each other and consecutive to the sentence imposed on Count 27.
From this judgment and sentence Francis Timothy Henry has perfected his appeal.
Johnson, J., concurs; Lewis, J., concurs in
results.
C-2005-608 — Ricky Allen Rinker entered
pleas of guilty and pleas of nolo contendere,1
without an agreement as to the sentence he
would receive, in Oklahoma County District
Court Case No. CF-2004-99, before the Honorable Ray C. Elliott, District Judge. Rinker
entered pleas of guilty to six (6) separate
counts of the crime of Sexual Abuse of a Child,
10 O.S.2001, § 7115, (counts one through five
and count nine). Rinker entered pleas of nolo
contendere to three (3) separate counts of Indecent or Lewd Acts with a Child under Sixteen,
21 O.S.2001, § 1123, (counts 6-8). Rinker was
sentenced on May 17, 2005, to forty (40) years
on counts one through five and count nine; ten
(10) years on count six; five (5) years on count
seven; and ten (10) years on count eight.
Counts one and four were ordered to run consecutively with each other; the remaining
counts were ordered to run concurrently with
each other and concurrently with count one.
Rinker subsequently filed a motion to withdraw his pleas, which was denied at a hearing
held before Judge Elliott. The trial court sentenced accordingly. From this judgment and
sentence, Ricky Allen Rinker has perfected his
appeal. Rinker’s Petition for Writ of Certiorari
is GRANTED, the Judgment and Sentence of
the district court is hereby VACATED, and the
case is REMANDED for further proceedings
consistent with this opinion. Opinion by
Vol. 78 — No. 10 — 3/24/2007
Lewis, J.; Lumpkin, P.J., dissents; C. Johnson,
V.P.J., concurs; Chapel, J., concurs; A. Johnson,
J., concurs.
1. The record refers to the pleas in these counts as “Alford pleas.”
F-2005-1040 — Timothy Wade Clay, Appellant, was tried by jury for the crime of Assault
with a Dangerous Weapon, After Former Conviction of Two or More Felonies in Case No.
CF-2004-6481 in the District Court of Oklahoma County. The jury returned a verdict of
guilty and recommended as punishment 44
years imprisonment. The trial court sentenced
Timothy Wade Clay has perfected his appeal.
The Judgment and Sentence of the Trial Court
is AFFIRMED. Opinion by A. Johnson, J.;
Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J., concurs; Lewis, J., concurs in
results.
F-2005-1161 — Isaac Gardner, Appellant,
was tried by jury for the crimes of Count 1:
Forcible Oral Sodomy and Count 2: Attempted
Sexual Battery, in Case No. CF-2004-891 in the
District Court of Oklahoma County. The jury
found Appellant guilty of Count 1 and recommended a sentence of twenty years imprisonment; the jury acquitted Appellant on Count 2.
The trial court sentenced accordingly. From
this judgment and sentence Isaac Gardner has
perfected his appeal. The Judgment of the district court is AFFIRMED. The Sentence is
MODIFIED to fifteen years imprisonment.
Opinion by C. Johnson, V.P.J.; Lumpkin, P.J.,
concurs in results; Chapel, J., concurs; A. Johnson, J., concurs in results; Lewis, J., concurs in
results.
C-2006-763 — Wilson Cintron, Jr., Petitioner,
was charged in Cotton County District Court,
Case No. CF-2005-10, with Count 1, Trafficking
in Illegal Drugs (Methamphetamine); Count 2,
Felony Possession of a Controlled Dangerous
Substance (Marijuana); Count 3, Unlawful Possession of Drug Paraphernalia; and Count 4,
Failure to Wear a Seatbelt. Petitioner entered a
blind plea of guilty to all counts. The Honorable Allen McCall sentenced Petitioner as follows: Count 1, twenty-two years imprisonment (with twelve to serve and ten suspended)
and a $25,000.00 fine; Count 2, two years
imprisonment and a $1,000.00 fine; Count 3,
one year imprisonment and a $250.00 fine; and
Count 4, a $10 fine. The sentences were to be
859
served concurrently. The trial court held a
hearing on Petitioner’s Motion to Withdraw
the Plea. The Trial Court denied the application and this appeal followed. The Petition for
Writ of Certiorari is DENIED, and the Judgment and Sentence of the district court is
F-2006-238 — Eugene Luther Miller, a/k/a
Eugene Moore, Appellant, was tried by jury in
Case No. CF-2004-4735 in the District Court of
Oklahoma County, of Possession of a Controlled Dangerous Substance (cocaine) (Count
I), Possession of a Controlled Dangerous Substance (marijuana) (Count II), Possession of a
Firearm While Committing a Felony (Count
III), and Possession of Proceeds Derived from a
Violation of the Uniform Controlled Dangerous Substance Act (Count IV), each After Former Conviction of Two or More Felonies. The
jury returned a verdict of guilty and recommended a sentence of seven years imprisonment on Count I, two years imprisonment on
Count II and six years imprisonment on each
of Counts III and IV. The trial court sentenced
accordingly, and ordered the sentences to run
consecutively. From this judgment and sentence Eugene Luther Miller, a/k/a Eugene
Moore has perfected his appeal. AFFIRMED.
Opinion by C. Johnson, V.P.J.; Lumpkin, P.J.,
concurs; Chapel, J., concurs; A. Johnson, J.,
concurs; Lewis, J., concurs in results.
F-2005-1256 — Travis Lamore O’Neal,
Appellant, was tried by jury for the crime of
First Degree Felony Murder in Case No. CF2003-5573 in the District Court of Oklahoma
County. The jury returned a verdict of guilty
and recommended as punishment life imprisonment. The trial court sentenced accordingly.
From this judgment and sentence Travis Lamore O’Neal has perfected his appeal.
F-2005-1209 — Rodney Keith King, Appellant, was tried by jury for the crimes of Count
1: First Degree Rape and Count 2: Lewd Acts
Against a Child Under 16 in Case No. CF-2004185 in the District Court of Lincoln County.
The jury returned a verdict of guilty and recommended as punishment life imprisonment
on Count 1 and twenty years imprisonment on
Count 2. The trial court sentenced accordingly
and ordered the sentences to be served consecutively. From this judgment and sentence Rod860
ney Keith King has perfected his appeal.
Lumpkin, P.J., concurs in results; Chapel, J.,
concurs in Results; A. Johnson, J., concurs in
results; Lewis, J., concurs.
S-2006-513 — The State of Oklahoma
charged Aisha Renae Fletcher (Appellee) with
Count 1: Unlawful Manufacture of Cocaine
Base; Count 2: Trafficking in Cocaine; Count 3:
Possession of Drug Proceeds; Count 4: Possession of Marijuana; and Count 5: Maintaining a
Dwelling Where Controlled Substances are
Kept in Oklahoma County District Court, Case
No. F-2004-4069. The District Court entered an
order sustaining Appellee’s motion to suppress evidence. The State timely appealed the
ruling, and the proceedings were stayed pending disposition of the appeal. This Court has
the authority to hear the appeal if it finds that
appellate review of the issues presented would
be in the best interests of justice. The District
Court’s order suppressing the evidence in this
case is REVERSED and the case is REMANDED for further proceedings. Opinion by C.
Johnson, V.P.J.; Lumpkin, P.J., concurs; Chapel,
J., concurs; A. Johnson, J., concurs; Lewis, J.,
concurs.
F-2005-1095 — Michael Pat Thompson,
Appellant, was tried by jury for the crimes of
four counts of Sexual Abuse of a Minor in case
no. CF-2003-5656, in the District Court of Tulsa
County. The jury returned a verdict of guilty
and recommended as punishment four (4) consecutive life sentences. The trial court sentenced accordingly. From this judgment and
sentence Michael Pat Thompson has perfected
his appeal. AFFIRMED. Opinion by Chapel, J.;
Lumpkin, P.J., concur; C. Johnson, V.P.J.,
concur; A. Johnson, J., concur; Lewis, J., concur.
THE ACCELERATED DOCKET
J-2006-1313 — The Appellant, R. F., appealed
to this Court from an order entered by the
Honorable Edward J. Hicks, III, Special Judge,
adjudicating Appellant delinquent in Case No.
JDL-2006-603 in the District Court of Tulsa
County. AFFIRMED. Lumpkin, P.J., concurs; C.
Johnson, V.P.J., not participating; Chapel, J.,
not participating; A. Johnson, J., concurs; and
Lewis, J., concurs.
F-2005-1251 — Appellant, Bernard Eugene
Favors, entered a plea of guilty in Tulsa Coun-
Vol. 78 — No. 10 — 3/24/2007
ty District Court, Case No. CF-2003-1442, to
Possession of a Stolen Vehicle. The trial court
accepted Appellant’s plea and deferred sentencing for two years, pursuant to terms and
conditions of probation. Subsequently, Appellant’s deferred sentence was accelerated in full.
Appellant appeals the order of the Honorable
Jesse S. Harris, District Judge, Tulsa County
District Court. The order of acceleration is
AFFIRMED. Lumpkin, P.J., concurs; C.
Johnson, V.P.J., concurs; Chapel, J., not
participating; A. Johnson, J., concurs; Lewis, J.,
concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
103,097 — Geoffrey Keeler and Jackie Keeler,
Plaintiffs/Appellees, vs. Mike Fretz Homes,
Defendant/Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Charles R. Hogshead, Judge. Defendant/Appellant Mike Fretz Homes (Builder)
contends that the Small Claims Division of the
District Court erred when it denied its Motion
for New Trial. Over Builder’s hearsay objection, the trial court admitted two estimates for
clean-up expenses offered by Plaintiffs/
Appellees Geoffrey and Jackie Keeler. The
Keelers claimed the clean-up expenses were
necessitated by Builder’s use of their lot as a
staging area while building on the adjacent lot.
We affirm the judgment and the order denying
the Motion for New Trial. AFFIRMED.
Opinion by Buettner, J.; Hansen, P.J., and Bell,
J., concur.
103,192 — In The Matter of The Estate of
Alberta F. Pendley, Deceased, Brian A. White,
Appellant, vs. Donny L. Bates and Phyllis
Steele, Appellees. Appeal from the District
Court of Oklahoma County, Oklahoma. Honorable Brian H. Upp, Judge. Alberta F. Pendley
(Decedent) executed a will on July 26, 2000
(2000 Will) appointing Appellant (White) as
the Personal Representative (PR) and sole beneficiary of her estate. White is Decedent’s
grand-nephew. On November 11, 2001, Decedent executed another will (2001 Will) which
devised and bequeathed her estate equally
among two brothers, a sister and Appellee
(Steele). Steele is Decedent’s niece. The 2001
Will nominated Decedent’s brother, Appellee
(Bates) to serve as alternate PR. Decedent died
June 4, 2004. On July 14, 2004, White filed a
petition for the probate of the 2000 Will. Bates
and Steele filed an objection and petitioned to
probate the 2001 Will. They claimed White
Vol. 78 — No. 10 — 3/24/2007
obtained the 2000 Will by duress and undue
influence, embezzled $40,000.00 from Decedent, and that the 2000 Will was revoked by
the 2001 Will. The trial court admitted the 2001
Will to probate and appointed Bates as PR.
White appeals and contends Decedent lacked
testamentary capacity to execute the 2001 Will
and the court erred in failing to find the 2001
Will was the product of undue influence. Both
of the witnesses and the notary public averred
Decedent was competent and capable of signing the 2001 Will. Decedent’s immediate family members and a long-time neighbor testified
she had good and bad days, but was certainly
aware of herself, her property and her family.
This evidence supports the court’s determination that Decedent understood the nature and
character of her property, the persons who
would receive her property under the 2001
Will, and the nature and effect of her testamentary act. There was evidence Decedent directed
Appellees to engage an attorney to prepare the
2001 Will and that she telephoned and discussed the content of the Will with the attorney
prior to signing same. Decedent received independent and competent advice from legal
counsel regarding the 2001 Will. The record
contains no direct proof that either Appellee
exercised undue influence in the procurement
of the 2001 Will. Bates’ request for appeal-related attorney fees and costs is granted. To the
extent attorney fees are sought for services rendered to Steele, individually, such fees are not
allowable from Decedent’s estate. On remand,
the trial court is directed to determine and
award an appropriate amount of appeal-related attorney fees and costs to be paid from
Decedent’s estate for services rendered to
Bates in his capacity as PR. AFFIRMED AND
REMANDED FOR FURTHER PROCEEDINGS. Opinion by Bell, J.; Hansen, P.J., and
Buettner, J., concur.
103,264 — In the Matter of S.G., S.G., and
S.G., Deprived Children. Shawn Guffin and
Debra Guffin, Appellants, vs. The State of
Oklahoma, Appellee. Appeal from the District
Court of Oklahoma County, Oklahoma. Honorable Stephen P. Alcorn, Judge. Appellants
Shawn Guffin (Father) and Debra Guffin
(Mother) appeal from the trial court’s judgment terminating their parental rights to their
daughters, S.G. (“S.G.,” born December 30,
1997), S.G., and S.G. (“the twins,” born May 1,
2000). Following a bench trial, the court terminated Father’s and Mother’s parental rights
for failure to correct the conditions leading to
the deprived adjudication and for chronic neg-
861
lect. Appellee The State of Oklahoma also
sought termination on the basis of heinous and
shocking sexual abuse, but the trial court
found no clear and convincing evidence that
the sexual abuse was heinous and shocking.
The record includes clear and convincing
evidence supporting the grounds for termination and we affirm. AFFIRMED. Opinion by
Buettner, J.; Hansen, P.J., and Bell, J., concur.
103,321 — Richard Gilbert, Plaintiff/
Appellee, vs. Don W. Young, Defendant/
Appellant. Appeal from the District Court of
Pottawatomie County, Oklahoma. Honorable
J. David Cawthon, Judge. In this action for
breach of contract for the sale of goods, Appellant appeals the trial court’s attorney fee award
to Appellee, the prevailing party. Appellant
contends that although Appellee’s counsel’s
hourly rate was reasonable, many of the
entries were unreasonable and the award
failed to bear a reasonable relationship to the
amount involved in this controversy. We agree.
The trial court’s order awarding attorney’s fee
is reversed. On remand the trial court is
instructed to award Appellee a reasonable
attorney fee in the amount of $16,225.00.
REVERSED AND REMANDED WITH
INSTRUCTIONS. Opinion by Bell, J.; Hansen,
P.J., and Buettner, J., concur.
103,331 — Rick’s Picks and Rickey Don
Fowler, real party in interest, Respondent/
Appellant, vs. State of Oklahoma, ex rel., Oklahoma Bureau of Narcotics and Dangerous
Drugs Control, Lonnie Wright, Director, Petitioner/Appellees. Appeal from the District
Court of Oklahoma County, Oklahoma. Honorable Noma D. Gurich, Trial Judge. Appellants (Distributor), seek review of the district
court’s order affirming the order of Appellee
(Bureau) which revoked and denied Distributor’s registration to distribute pseudoephedrine. The ground upon which Bureau
sought to revoke and deny Distributor’s registration was the failure to maintain effective
controls against the diversion of pseudoephedrine to unauthorized persons. Bureau
found as follows: Distributor sold approximately 10.5 million tablets of Max Brand pseudoephedrine to convenience stores in the State
of Oklahoma in a 27 month period, including
more than 57,000 tablets sold to a head shop.
Max Brand has little to no legitimate medical
value and is not sold in pharmacies. Max
Brand is a type of pseudoephedrine preferred
by those whose illegally manufacture methamphetamine. The testimony of the DEA investi862
gator and the parties’ stipulations as to the
amounts and dates of sales are reliable, material, probative, and substantial competent evidence supporting fact findings in the order.
AFFIRMED. Opinion by Hansen, P.J.; Buettner,
J., and Bell, J., concur.
103,749 — Beverly Jean Davie, Petitioner, vs.
Fine Arts Engraving Co., Inc.; Arch Insurance
Company; and The Workers’ Compensation
Court, Respondents. Proceeding to Review an
Order of a Three-Judge Panel of The Workers’
Compensation Court. Claimant seeks review
of the order denying her request for permanent
total disability (PTD) and contends the order is
not supported by competent evidence. She
argues the court should have awarded her
PTD benefits pursuant to 85 O.S.2001 §16 (D).
That section provides that during the period
when an employee is actively participating in a
retraining or job placement program (LDH) for
purposes of evaluating PTD status, the
employee shall be entitled to receive benefits at
the same rate as the employee’s temporary
total disability benefits. Claimant did not take
advantage of the options offered by rehabilitation and vocational consultants and is not participating in a retraining or job placement program for purposes of evaluating PTD status.
Therefore, Claimant is not eligible for provisional PTD benefits under 85 O.S.2001 §16(D).
In addition, the court’s order denying PTD is
supported by competent evidence presented in
the report of Dr. J. and the LDH report. SUSTAINED. Opinion by Hansen, P.J.; Buettner, J.,
and Bell, J., concur.
103,858 — Doug R. Embrey, Plaintiff/Appellant, vs. Farmers Insurance Exchange, an interinsurance
exchange;
Truck
Insurance
Exchange, an inter-insurance exchange; Fire
Insurance Exchange, an inter-insurance
exchange; Mid-Century Insurance Company, a
corporation; Farmers New World Life Insurance Company, a corporation; Farmers Insurance Company, Inc., a corporation; and Farmers Group, Inc., a corporation, Defendants/
Appellees. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable David L.
Peterson, Judge. Appellant (Embrey), a former
agent for Appellees (Companies) filed the
instant action against Appellees and other
Defendants not parties to this appeal for
wrongful termination and breach of the
covenant of good faith and fair dealing. The
trial court granted summary judgment to all
Defendants on all of Embrey’s claims. In a pre-
Vol. 78 — No. 10 — 3/24/2007
vious appeal, No. 98,108, the Court concluded
the trial court properly granted summary
judgment to Companies with respect to
Embrey’s claims that he was terminated without good cause and in violation of the implied
covenant of good faith and fair dealing. The
court held the trial court improperly granted
summary judgment on Embrey’s theory that
Companies failed to give him a termination
review board hearing and three-months notice
prior to termination without cause as provided
in the Farmers Insurance Group Agent
Appointment Agreement. The court decided
the damage issue and remanded the matter.
The relitigation of the damage issue is foreclosed by the settled law of the case. We hold
the trial court properly limited Embrey’s damages for Companies’ breach to the recalculated
contract value without regard to Embrey’s evidence of lost renewal and new business commissions. We further hold Embrey’s right to
receive interest was suspended because he
refused to accept Companies’ tender of the
contract value. The evidentiary material
attached to Companies’ motion for summary
judgment revealed the recalculated contract
value was less than the contract value tendered
by Companies to Embrey. Although Embrey
controverted the veracity of the proffered
recalculated contract value, he based his dispute solely on his assertion that Companies’
formula failed to include renewal and new
commissions. Under the clear terms of the
agency contract, the contract value is not
affected by this data. Therefore, the trial court
properly excluded this information. This being
the case, we find Embrey would be unable to
produce evidence to support the damage element of a breach of contract claim. The trial
court correctly determined Companies were
entitled to judgment as a matter of law on
Embrey’s claim for breach of contract. Accordingly, the trial court’s summary judgment in
favor of Companies is AFFIRMED. Opinion by
Bell, J.; Hanen, P.J., and Buettner, J., concur.
(Division No. 2)
102,803 — Michael Hayes, Plaintiff/
Appellee, v. Catherine Maude Hayes, Defendant/Appellant. Appeal from Order of the
District Court of Comanche County, Hon. Leo
A. Watson, Jr., Trial Judge. Appellant Catherine
Hayes (Wife) appeals from the Trial Court’s
denial of her Motion to Enforce a Decree of
Divorce. Arguing that Husband’s unilateral act
of converting his retirement benefits to disability pay constituted an impermissible modificaVol. 78 — No. 10 — 3/24/2007
tion or evasion of the Trial Court’s property
division order, Wife filed a Motion to Enforce
Decree of Divorce on October 6, 2004. The Trial
Court denied Wife’s Motion finding that it
lacked the authority to either prevent Husband
from converting his retirement benefits or
require Husband to pay Wife a portion of his
disability benefits. The Trial Court’s decree
clearly granted Wife a vested interest in a portion of any payment Husband might receive
on his early separation from the Army. The
Trial Court granted Wife a portion of the marital estate based, in part, on Husband’s anticipated retirement and calculated pursuant to a
formula designed to ascertain that portion of
his retirement earned during the marriage. In
doing so, the Trial Court awarded Wife property to which she remains entitled absent a
modification of the decree. Husband has an
adjudicated duty to Wife, which he has a legal
obligation to satisfy even though the dollar
amount of that obligation could not be determined until after the decree was entered.
Wife’s requested relief is not an attempt to
modify the Trial Court’s property division.
Rather, Wife seeks to compel Husband to satisfy his previously adjudicated, unappealed and
unmodified property division obligation.
Accordingly, we reverse that portion of the
order finding that the Trial Court lacked
authority to require Husband to satisfy his previously determined obligation to Wife.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion on Rehearing
from
Court
of
Civil
Appeals,
Division II, by Fischer, J.; Wiseman, P.J., and
Goodman, J., concur.
102,677 — Amanda Christine Comstock,
Petitioner/Appellant, v. Howard Olin Comstock, Respondent/Appellee. Appeal from an
order of the District Court of McClain County,
Hon. Noah Ewing, Trial Judge, finding that a
permanent, material and substantial change of
conditions had occurred and awarding custody of the minor child to Father. Father filed a
motion to modify the custody portion of the
divorce decree entered in 2004, which awarded
custody of the minor child to Mother. At trial,
the guardian ad litem recommended that
Father should have primary custody due to
Mother allowing a sex offender to live in the
home and her “still not grasping the seriousness of it.” Although the sex offender committed suicide and no longer lived in the home,
the guardian ad litem still recommended a
change of custody. The guardian ad litem
863
noted that money was a major problem at
Mother’s house because she was not working
and further opined that Father could provide
the minor child with a more stable and happy
childhood. The trial court found that a permanent, material and substantial change of conditions had occurred and awarded custody of
the minor child to Father. The trial court did
not abuse its discretion in finding that custody
should be modified and primary custody
awarded to Father. AFFIRMED. Opinion from
the Court of Civil Appeals, Division II, by
Wiseman, J; Rapp, C.J., and Fischer, P.J., concur.
determine the number of weeks of TTD benefits Worker was entitled to receive. Employer
has not challenged the Trial Court’s factual
finding of “good cause” for extension of TTD
payments to Worker beyond the 300 weeks she
had already been paid, nor does Employer
claim that the reinstatement of TTD lacks support by competent evidence. Accordingly, we
sustain the order under review. SUSTAINED.
Opinion from Court of Civil Appeals, Division
II, by Fischer, P.J.; Rapp, C.J., and Wiseman, J.,
concur.
103,248 — Barbara Stinson, Plaintiff/Appellant, vs. Voyager Indemnity Insurance Company, Defendant/Appellee. Appeal from an
order of the District Court of Oklahoma
County, Hon. Barbara Swinton, Trial Judge,
granting summary judgment to Defendant.
Plaintiff purchased a homeowner’s policy
from Defendant to insure her residence against
certain perils, including windstorm and hail
damage. Plaintiff made a timely claim for wind
damage to her roof. Defendant paid Plaintiff
the actual cash value of her loss. Defendant
denied Plaintiff’s request that it pay her the
difference between the actual cash value and
the cost of replacing the roof. Less than sixty
days after the original loss, the chimney on
Plaintiff’s residence collapsed which Plaintiff
claimed was due to wind damage. Plaintiff’s
additional claim for wind damage to the chimney was also denied by Defendant. We find
that the trial court did not err in granting summary judgment to Defendant. The policy clearly did not require Defendant to pay the
replacement cost for the roof. As to Plaintiff’s
claim for the damage from the collapsed chimney, there is no evidence to establish a causal
connection between a windstorm and the collapse. AFFIRMED. Opinion from the Court of
Civil Appeals, Division II, by Wiseman, J.;
Rapp C.J., and Fischer, P.J., concur.
101,038 — Joseph G. Parker, Plaintiff/Appellant, v. Global Health Initiative, Defendant/
Appellee. Appeal from the District Court of
Tulsa County, Hon. Russell P. Hass, Trial
Judge, denying Joseph G. Parker the right to
proceed directly against the shareholders of
Global Health Initiative (GHI) by piercing the
corporate veil. Parker obtained a judgment in
workers’ compensation court for a work-related injury he sustained while employed by
GHI. GHI had not purchased workers’ compensation insurance and did not possess an
own risk certificate. When GHI failed to pay
the workers’ compensation award, Parker certified the judgment to the district court for collection. The chief executive officer of GHI testified that the corporation had been closed, had
no assets, was insolvent, and was in the
process of dissolving. Parker sought permission from the trial court to disregard the corporate entity and pursue his judgment against
the individual shareholders. The trial court
found insufficient evidence to support Parker’s request and denied his motion. We find
that the trial court’s denial of Parker’s request
to pierce the corporate veil was error requiring
reversal. Parker is entitled to disregard the corporate entity when to do otherwise is to defeat
the public policy underlying the Workers’
Compensation Act by allowing the corporate
entity to violate the Act and then use the Act to
avoid liability. REVERSED AND REMANDED
FOR FURTHER PROCEEDINGS. Opinion
from the Court of Civil Appeals,
Division II, by Wiseman, J.; Fischer, P.J., and
Gabbard, J. (sitting by designation), concur.
103,431 — Oklahoma Department of Mental
Health and Compsource Oklahoma, Petitioners, vs. Daretha Shamblin and The Workers’
Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel
of The Workers’ Compensation Court, Hon.
Kenton W. Fulton, Trial Judge, which affirmed
the Trial Court’s order directing Employer to
reinstate the payment of temporary total disability (TTD) benefits to Worker. We conclude
that the Workers’ Compensation Court did not
err in applying 85 O.S. Supp. 1997 § 22(2)(c) to
864
103,650 — Phillip Keith Crawford, Petitioner,
v. Oklahoma Corporation Commission, Compsource Oklahoma and The Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of a Three-Judge Panel of the
Workers’ Compensation Court, Hon. Cherri
Farrar, Trial Judge, which affirmed the Trial
Vol. 78 — No. 10 — 3/24/2007
Court’s finding that Worker did not sustain an
accidental personal injury arising out of and in
the course of his employment. Worker suffered
burns to his hands, arms, chest and face from a
gasoline flash fire. At the time of his injury,
Worker was employed as a fuel specialist for
the Oklahoma Corporation Commission
(OCC). Worker’s duties as a fuel specialist
involved the routine drawing of gasoline samples at various service stations to check octane
levels and pump calibrations. Worker’s
injuries occurred while he was at home. He
had ten or twelve quart-size aluminum containers of gasoline samples stored in the back
of his employer-provided truck. He was going
to transfer the gasoline samples he had collected from the OCC’s quart containers into his
own five-gallon container he kept in his
garage. While Worker was pouring the contents of one of the quart containers into a metal
funnel inserted into his larger container, static
electricity between the funnel and his right
arm ignited the gasoline, starting the fire that
resulted in Worker’s burns. This appeal
requires an evaluation of whether Worker’s
injury at his home garage “satisfies the necessary components of an employment-related
purpose.” Corbett v. Express Personnel, 1997 OK
40, ¶ 9, 936 P.2d 932, 934. The record contains
conflicting testimony and testimony from
which conflicting inferences may be drawn.
Nevertheless, there is competent evidence in
the record to support a finding that Worker’s
injury was not attributable to an employmentrelated source. SUSTAINED. Opinion from
Court of Civil Appeals, Division II, by Fischer,
P.J.; Wiseman, J., concurs, and Rapp, C.J.,
concurs in result.
103,861 — Multiple Injury Trust Fund, Petitioner, v. Johnny Diamond and The Workers’
Compensation Court, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court, Hon. Richard L. Blanchard,
Trial Judge. The Multiple Injury Trust Fund
(MITF), Petitioner in the Workers’ Compensation Court, appeals a trial court Miscellaneous
Order setting postjudgment interest rates at
eighteen (18%) percent per annum on unpaid,
pre-November 4, 1994 claims of a set of
claimants referred to as the Diamond
Claimants and awarding judgment accordingly after calculation of the interest due and
unpaid. The trial court’s adjudication followed
this Court’s decision in Multiple Injury Trust
Fund v. Diamond et al., Case Number 102,437,
decided April 25, 2006 (Diamond I.) In Diamond
Vol. 78 — No. 10 — 3/24/2007
I, the trial court had awarded eighteen percent
interest. After review of the state of the law
concerning postjudgment interest and statutory amendments, this Court reversed and
remanded the action because the status of the
sundry claimants’ orders as final or nonfinal
did not appear of record. The trial court conducted a hearing. The Diamond Claimants
submitted exhibits, without objection. These
exhibits consisted of the orders awarding
claimants material increases from MITF, copies
of individual orders awarding claimants interest at eighteen percent because of MITF’s failure to pay the award; and copies of the interest
calculation, with credits, for each individual
claimant. The trial court found that all the
orders were final. Each order directed MITF to
pay eighteen percent per annum interest. MITF
does not dispute the entry dates of the orders,
their pertinent content, or that each is a final
order. MITF maintains that the correct interest
rate should have been the fluctuating rate. In
Diamond I, this Court reviewed the issue of
whether and how Section 42(A) applied and
will not repeat that review here. One alternative recognized by this Court was the case in
which final interest orders had been entered.
Here, the undisputed fact is that each interest
order is a final order. The confusion arises
because each order refers to Section 42, which
then prescribed the fluctuating interest rate,
but then specifically set the interest rate at
eighteen percent, the rate in effect when the
original orders for payment to the claimants
was entered. Thus, the interest orders, as
admitted by MITF, do not prospectively provide for a fluctuating interest rate. Consequently, even though such orders may have
been erroneous when entered as being in conflict with the statute in effect when the orders
were entered, nevertheless, they are the law in
each case and control. Workers’ Compensation
Court orders are “final and conclusive” if not
timely appealed. The failure to timely appeal
makes the orders impervious to challenge,
save for jurisdictional grounds. Therefore, the
trial court did not err in fixing the interest at
eighteen percent for each of the affected Diamond Claimants. The judgment of the trial
court is sustained. SUSTAINED. Opinion from
Court of Civil Appeals, Division II, by Rapp,
C.J.; Fischer, P.J., and Wiseman, J., concur.
(Division No. 3)
102,773 — State of Oklahoma, Appellee, v.
Rene Esquivel, Defendant, and Vicki E.
865
Ringeisen, Appellant. Appeal from the District
Court of Logan County, Oklahoma. Honorable
Donald L. Worthington, Trial Judge. Appellant
Vicki Ringeisen, the surety for a licensed
bondsman who posted bond for a person who
falsely identified himself as “Rene Esquivel”
(the defendant) while being arrested and
booked into the Logan County Jail, appeals a
trial court order denying her motion to set
aside the bond forfeiture. The single issue
Appellant raises is whether her failure to
return the defendant to custody falls under the
“good cause” exemption of 59 O.S.Supp.2002 §
1332. Based on the record presented to the trial
court, we conclude the trial court did not abuse
its discretion in denying Appellant’s motion.
AFFIRMED. Opinion by Adams, J.; Joplin, P.J.,
and Mitchell, V.C.J., concur.
102,836 — New Era Enterprise Limited Partnership, Plaintiff/Appellant, v. Command
Management Services, Inc., Defendant/
Appellee. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable Carolyn R. Ricks, Trial Judge. Appeal by the Plaintiff of a trial court judgment in its favor, contending that the trial court erred in refusing its
request for damages for early termination of a
contract and improperly determined its damages for amounts unpaid for services rendered
under that contract. HELD: The Plaintiff did
not provided a record sufficient to determine
the existence of any trial court error.
AFFIRMED. Opinion by Adams, J.; Joplin,P.J.,
and Mitchell,V.C.J., concur.
102,896 — 310 E. Sheridan Avenue, L.L.C.,
Plaintiff/Appellee, v. 108 California, L.L.C.
and John Freeman, Defendants/Appellants.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Noma D.
Gurich, Judge. Defendants Lessees seek review
of the trial court’s order granting judgment to
Plaintiff Lessor on the parties’ competing
claims for a declaratory judgment concerning
the validity of a commercial real estate lease. In
this appeal, Lessees challenge the trial court’s
judgment as both contrary to the plain and
unambiguous language of the parties’ lease
contract, and unsupported by the evidence.
Lessees acquiesced to their broker’s insertion
of his address in the lease as that of Lessees,
there is no other address listed in the lease for
Lessees, and Lessees at no time notified
Lessors of a different address. Under these circumstances, Lessees cannot complain of the
failure of the notices of breach and termination
for Lessor’s mailing of notices to the address
866
listed in the lease. There is also evidence supporting conclusions that broker acted as
Lessees’ agent for purposes of notice under the
lease, that Lessor’s written notices to broker
actually reached Lessees, and that the written
notices to broker sufficiently complied with
the written notice provisions of the lease. The
evidence also supports conclusions that Lessor
afforded Lessees notices of the breach of the
liability insurance provision of the lease,
allowed Lessees an extended opportunity to
obtain the required coverages and cure the
default of the insurance provision of the lease,
and permissibly terminated the lease upon
Lessees’ failure to cure the default after written
notice. AFFIRMED. Opinion by Joplin,P.J.;
Adams, J., and Mitchell,V.C.J., concur.
103,166 — In the Matter of A.M.C. Cherokee
Nation and Misty Carson, Appellants, v. The
State of Oklahoma, Tobias Moreland and Jorji
Moreland, Appellees. Appeal from the District
Court of Osage County, Oklahoma. Honorable
B. David Gambill, Trial Judge. Consolidated
appeals of the Cherokee Nation and Mother of
A.M.C. arguing the trial court erred in failing
to provide proper notice under the Oklahoma
Indian Child Welfare Act and the federal Indian Child Welfare Act, and in failing to address
a request to transfer the matter to the Cherokee
Nation’s tribal court. The Cherokee Nation
also argues the trial court erred in failing to follow placement preferences in the federal act. In
addition, Mother alleges error in failing to
afford her protection due her under the same
acts when terminating her parental rights and
in failing to timely appoint her counsel. HELD:
Mother had counsel during the “critical” time
identified in her cited authority, and reversal
will not be premised on this basis. However,
the record supports Mother’s argument that
she failed to receive protections due under the
acts once the State knew or should have
known from information it received that these
enactments applied to the proceedings. The
order terminating Mother’s parental rights is
reversed and the matter remanded for further
proceedings consistent with the opinion. Further, the trial court abused its discretion in failing to consider all proper factors for a deviation from the placement preferences stated in
the federal act and that error was exacerbated
by delays in notification of the proceedings
affecting A.M.C. required by the federal act
and a failure to comply with § 40.3, § 40.4 and
§ 40.6 of Title 10 of the Oklahoma act. The
order placing A.M.C. in foster care for adoption is reversed and the matter remanded.
Vol. 78 — No. 10 — 3/24/2007
Upon remand, the motion for transfer of the
proceedings to the Cherokee Nation tribal
courts also must be considered. REVERSED
AND REMANDED. Opinion by Adams, J.;
Joplin, P.J., and Mitchell,V.C.J., concur.
103,428 — Gary L. Middaugh, Sr., Plaintiff/Appellant, v. Justin Jones, Director Oklahoma Department of Corrections; and State of
Oklahoma, Defendants/Appellees. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Carolyn R. Ricks, Trial
Judge. Gary Middaugh, Sr., an inmate in the
custody of the Oklahoma Department of Corrections (DOC), appeals a trial court summary
judgment order denying his claim for damages
for the destruction of certain of his personal
property by DOC personnel. Because we conclude the facts shown by the evidentiary material presented to the trial court are consistent
only with judgment for Defendants/
Appellees, we affirm. AFFIRMED. Opinion by
Adams, J.; Joplin,P.J., and Mitchell,V.C.J.,
concur.
103,924 — Tom Wilcox, Plaintiff/Appellant,
v. Robert W. Collier, Defendant/Appellee.
Appeal from the District Court of Dewey
County, Oklahoma. Honorable Charles J.
Goodman, Trial Judge. Appellant, an attorney,
brought an action for assault and battery
against Appellee, the Associate District Judge
in Dewey County, Oklahoma. The action complained of occurred when Plaintiff entered the
Court Clerk’s office in the Dewey County
Courthouse and began videotaping people
inside the office. Judge Collier was in the Court
Clerk’s office at the time taking testimony
prior to the issuance of a search warrant. Judge
Collier approached Plaintiff and “grabbed the
plaintiff about his right arm and pushed the
video camera … away from plaintiff’s face.”
Shortly thereafter the Plaintiff left the clerk’s
office. The trial court dismissed the action on
the grounds that Plaintiff failed to controvert
the statement of undisputed facts as presented
by the Defendant, Defendant was acting in his
judicial capacity of protecting the integrity of
ongoing judicial proceedings, and Defendant
is entitled to judicial immunity. The court sanctioned Plaintiff under 12 O.S. §2011.1 on the
basis that Plaintiff knew or should have known
the doctrine of judicial immunity would prevent his case from proceeding forward. It has
long been the law that judges are entitled to
absolute immunity from damages for acts performed in their judicial capacities. Further,
judicial immunity applies even when a judge
Vol. 78 — No. 10 — 3/24/2007
is accused of acting maliciously and corruptibly. It is in the public’s interest that judges
should be at liberty to exercise their functions
with independence and without fear of consequences. The facts are undisputed that Defendant’s actions related to the important judicial
function of maintaining order in the courtroom. Summary judgment was properly granted. The sanctions and award of attorney fees
was also proper. AFFIRMED. Opinion by
Mitchell,V.C.J.; Adams, J., and Joplin,P.J.,
concur.
103,368 — In the Matter of C.C., M.T., T.T., &
T.C., adjudicated deprived children. Nguyen
Cleveland and Christopher Cleveland, Appellants, v. State of Oklahoma, Appellee. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Roger H. Stuart, Judge.
Natural mother of C.C., M.T., T.T. and T.C. and
natural father of C.C. and T.C. and stepfather
of M.T. and T.T. seek review of the trial court’s
order granting judgment on the jury’s verdict
terminating their parental rights. Finding competent evidence exists to support the jury’s
finding that the pair failed to correct the conditions underlying the children’s adjudication as
deprived and that termination was in best
interest of the children as authorized by 10 O.S.
§ 7006-1.1(A)(5), the order of the trial court is
affirmed. AFFIRMED. Opinion by Joplin, P.J.;
Adams, J., and Mitchell, V.C.J., concur.
103,648 — Mummagraphics, Inc., d/b/a
Webguy Internet Solutions, Plaintiff/Appellant, v. CRO, Inc., d/b/a El Chico Mexican
Café, Defendant/Appellee. Appeal from the
District Court of Oklahoma County, Oklahoma. Honorable Bryan C. Dixon, Trial Judge.
Appeal of denial of Plaintiff’s motion for summary judgment and in granting the motion for
summary judgment of Defendant. Plaintiff
claims Defendant was not entitled to judgment
as a matter of law and that it was entitled to
damages because Defendant violated 12
O.S.2001 § 776.1 by sending certain unsolicited
e-mail messages. The trial court found the
messages did not mislead and consequently
the statute, which makes unlawful the sending
of fraudulent electronic mail messages, was
not violated. HELD: We agree that the statute
was not violated, but not on the basis determined by the trial court. The damages Plaintiff
claims arise not from fraudulent, misleading or
malicious information in the messages but
from costs created by the simple increase in the
volume of messages received. The statute does
867
not provide a remedy for the damages claimed
by Plaintiff. Accordingly, though for reasons
other than those stated by the trial court,
Defendant was entitled to judgment as a matter of law and Plaintiff was not entitled to
judgment on its motion for summary judgment. The facts shown by the evidentiary
material presented to the trial court, considered in the light most favorable to Plaintiff and
all reasonable inferences from those facts, are
consistent only with judgment for Defendant.
The trial court’s judgment is AFFIRMED.
Opinion by Adams, J.; Joplin, P.J., and Mitchell,
V.C.J., concur.
102,439 — Thomas McCamey, Plaintiff/
Appellant, v. Medical Centers of Oklahoma,
L.L.C., as Successor by merger of Notami Hospitals of Oklahoma, Inc., d/b/a Tulsa Regional
Medical Center and Dr. JoeBob Kirk, Defendants/Appellees, and Dr. Michael Whitworth,
Defendant. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable Gregory
K. Frizell, Judge. Appellant Thomas McCamey
has requested rehearing of the decision filed
December 8, 2006. Appellees have responded.
Based upon the Zeier v. Zimmer, 2006 OK 98,
___ P.3d ___, which was handed down December 19, 2006, and mandated March 2, 2007, we
reverse the trial court order dismissing Appellant’s Petition for failure to file an affidavit or
written opinion as required by 63 O.S.
Supp.2003 §1-1708.1 E. This matter is remanded for further proceedings. REVERSED. Opinion by Buettner, J.; Adams, J., and Mitchell,
V.C.J., concur.
(Division No. 4)
Tuesday, February 27, 2007
103,096 (companion w/ No. 103,393) —
Brenda J. Duncan, Plaintiff/Appellant, vs.
Barry James Marciszewski and Aaron Forrest
Decaillet, Defendants/Appellees, and Mid
Century Auto, Defendant. Appeal from the
District Court of Cotton County, Hon. Leo
Watson, Jr., Trial Judge, dismissing Plaintiff’s
original negligence action and her refiled
action pursuant to District Court Rule 9.
Because Plaintiff received no notice that a Rule
9(a) dismissed had been entered, the limitations period did not begin to run. Accordingly,
the refiled action was timely filed. REVERSED
AND REMANDED WITH DIRECTIONS.
IV, by Gabbard, P.J.; Reif, J., and Goodman, J.,
concur.
868
103,348 — Opal Ellis, Appellant/Plaintiff, v.
The State of Oklahoma, ex rel. The Oklahoma
Insurance Department, a state agency,
Appellee/Defendant. Appeal from the District
Court of Oklahoma County, Hon. Noma D.
Gurich, Trial Judge. Opal Ellis appeals the trial
court’s April 14, 2006, order granting State of
Oklahoma, ex rel., The Oklahoma Insurance
Department’s motion to dismiss. Based upon
our review of the facts and applicable law, we
reverse and remand for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the
Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Reif, J., concur.
103,393 (companion w/ No. 103,096) —
Brenda J. Duncan, Plaintiff/Appellant, vs.
Barry James Marciszewski and Aaron Forrest
Decaillet, Defendants/Appellees, and Mid
Century Auto, Defendant. Appeal from the
District Court of Cotton County, Hon. Leo
Watson, Jr., Trial Judge, dismissing Plaintiff’s
original negligence action and her refiled
action pursuant to District Court Rule 9.
Because Plaintiff received no notice that a Rule
9(a) dismissed had been entered, the limitations period did not begin to run. Accordingly,
the refiled action was timely filed. REVERSED
IV, by Gabbard, P.J.; Reif J., and Goodman, J.,
concur.
103,542 — Green Tree Servicing, L.L.C.,
Plaintiff/Appellant, vs. Tommy Lee Fisher,
Defendant/Appellee, and Jim Moriarty, Curtis
Fisher, and Cindy Harcum, Defendants.
Appeal from the District Court of Cleveland
County, Hon. William C. Hetherington, Trial
Judge, denying Plaintiff’s motion to compel
arbitration. The note and security agreement
signed by the parties contains an arbitration
clause. However, the cause of action here does
not have its roots in the contract, but in alleged
behavior that occurred subsequent to the contract’s termination and which did not arise as a
natural consequence of the contract.
AFFIRMED. Opinion from Court of Civil
Appeals, Division IV, by Gabbard, P.J.; Reif J.,
and Goodman, J., concur.
103,592 — Libertarian Political Organization
of Oklahoma, f/k/a Libertarian Political Party
of Oklahoma; Steve Galpin; Robert T. Murphy;
Sharon Lynn Atherton; Roger Bloxham;
Richard P. Prawdzienski; Michael A. Clem; and
Christopher S. Powell, Plaintiffs/Appellants,
vs. Michael Clingman, Secretary of the Okla-
Vol. 78 — No. 10 — 3/24/2007
homa State Election Board; Glo Henley, Chairman of the Oklahoma State Election Board;
Kenneth Monroe, Vice-Chairman of the Oklahoma State Election Board; Thomas E. Prince,
Member of the Oklahoma State Election Board,
and the Oklahoma State Election Board, Defendants/Appellees. Appeal from Order of the
District Court of Oklahoma County, Hon.
Bryan C. Dixon, Trial Judge, entering summary judgment in favor of the Oklahoma State
Election Board, et al. (OSEB), on Plaintiffs’
claim that Oklahoma’s ballot access law for
formation of a recognized political party, 26
O.S. Supp. 2006 § 1-108, is unconstitutional.
Plaintiffs claim the law unduly restricts ballot
access because it requires a proposed party to
collect too many signatures within too short a
period of time after notice of intent to form a
party is filed with OSEB. Virtually identical
issues were addressed by the U.S. Court of
Appeals for the Tenth Circuit in Rainbow Coalition of Oklahoma v. Oklahoma State Election
Board, 844 F.2d 740 (10th Cir. 1988), where the
Court upheld the constitutionality of the
state’s ballot access and voter registration
laws. Though the state law has been amended
since the Rainbow Coalition decision, and a
state court is not bound by the holdings of
lower federal appellate courts, the statutory
changes were minor and the Tenth Circuit’s
opinion is highly persuasive authority. In addition, this Court’s independent analysis of the
statute leads to the same conclusion. Restrictions that do not affect a political party’s ability to perform its primary functions of organizing, developing, or recruiting supporters,
choosing a candidate, and voting for that candidate in a general election have been held not
to impose a severe burden; therefore, such
restrictions do not receive a “strict scrutiny”
analysis. The Oklahoma law in question does
not regulate or restrict the proposed party’s
internal processes, its authority to exclude
unwanted members, its capacity to communicate with the public, its ability to associate with
non-members, its ability to nominate its candidates, or its ability to engage in the same activities as every other political organization in the
state. However, because the statute restricts an
unrecognized party’s ability to appear on the
general election ballot, its effect must be carefully examined. Examination of the law’s effect
in this instance reveals that it imposes only
rational and reasonable restrictions designed
to meet the state’s important regulatory interests of reducing election- and campaign-related disorder, avoiding voter confusion, and verifying signatures on petitions. The reasons
Vol. 78 — No. 10 — 3/24/2007
given by Plaintiffs for failing to meet statutory
deadlines are insufficient to overcome the
state’s need for orderly elections. The Oklahoma statute provides a reasonable and efficient means of allowing unrecognized parties
access to the general election ballot by demonstrating the parties have a modicum of support, and is a reasonable restriction on ballot
access. Restrictions designed to show such
support, within the time frames imposed, not
only preserve parties as viable and identifiable
interest groups, but discourage “frivolous”
candidates, party raiding, and “sore loser”
candidates by spurned contenders. Title 26
O.S. Supp. 2006 § 1-108 does not unnecessarily
restrict or infringe upon associational and due
process rights protected by the Oklahoma and
U.S. Constitutions. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by
Gabbard, P.J.; Reif, J., and Goodman, J., concur.
103,686 — James Leonard, an individual,
Plaintiff/Appellant, v. Hanover American
Insurance Company; Keith Stanley, an individual; and Stanley Engineering, Inc., an Oklahoma corporation, Defendants/Appellees.
Appeal from Order of the District Court of
Oklahoma County, Hon. Daniel L. Owens,
Trial Judge, granting summary judgment to
Defendants on Plaintiff’s claims of breach of a
homeowner’s insurance contract, bad faith,
negligence, fraud, and conversion. Defendant
Insurer relied on two reports by Defendant
Engineer evaluating alleged mold at Plaintiff’s
home. Engineer may not escape liability for
any negligence simply by saying his duty was
only to Insurer. However, there is no evidence
that Engineer was negligent in performing the
work. Engineer’s continued practice after his
license was revoked due to failure to timely
pay an annual registration fee or income tax is
not enough in itself to base a claim of negligence, fraud, or conspiracy. Regarding Insurer’s liability, the circumstances present disputed facts as to whether Plaintiff was an
“insured” with a right to sue Insurer for loss
that may have occurred after Plaintiff formally
became the property’s owner, but before he
was formally added as an “insured” under the
policy at issue here. However, Plaintiff failed
to demonstrate that there are material facts in
dispute concerning whether the policy was
breached, and even if so, whether he sustained
damages. AFFIRMED. Opinion from Court of
Civil Appeals, Division IV, by Gabbard, P.J.;
Reif, J., and Goodman, J., concur.
869
103,807 — Willie Rose, Plaintiff/Appellant,
vs. City of Tulsa, a municipal, corporation,
Defendant/Appellee, and Alan Franks, Defendant. Appeal from Order of the District Court
of Tulsa County, Hon. Deborah C. Shallcross,
Trial Judge, granting summary judgment in
favor of City of Tulsa on Plaintiff’s claim
against City for negligence. It is undisputed
that Plaintiff did not file this action until more
than 180 days after City’s deemed denial of her
claim. Therefore, Plaintiff’s action is barred by
the Governmental Tort Claims Act, 51 O.S.2001
§ 157. AFFIRMED. Opinion from Court of Civil
Appeals, Division IV, by Gabbard, P.J.; Reif, J.,
and Goodman, J., concur.
102,282 — Chisholm Trail Agri-Services,
L.L.C., Plaintiff/Appellee, vs. Eslabon Feeders,
L.P., et al., Defendants/Appellants. Appeal
from the District Court of Stephens County,
Hon. Allen McCall, Trial Judge, entering judgment on a jury verdict in favor of Plaintiff and
awarding attorney fees. The trial court erred in
granting a directed verdict in favor of Plaintiff
on Defendant’s counterclaim of fraud based on
alleged misrepresentations by Plaintiff
concerning the care and condition of
Defendant’s cattle, which Plaintiff had
entrusted to Defendant’s care for “backgrounding.” The trial court also erred in failing
to instruct the jury on Defendant’s theories of
recovery concerning bailment for hire and negligence of a bailee. The errors were such as
may have affected the outcome of the trial, and
require reversal of the judgment. REVERSED
AND REMANDED FOR NEW TRIAL.
IV, by Gabbard, P.J.; Reif, J., and Goodman, J.,
concur.
103,115 — First United Bank & Trust Co.,
Sapulpa, Oklahoma, a State Banking Corporation, Plaintiff/Appellee, v. C.D. Baker, a/k/a
Cleveland D. Baker, and Myrtle L. Baker, husband and wife, Defendants/Appellants.
Appeal from the District Court of Tulsa County, Hon. Deborah C. Shallcross, Trial Judge.
This case concerns the liability of C.D. and
Myrtle Baker for the balance remaining on a
loan after the lender, First United Bank,
applied insurance proceeds to the loan. The
insurance proceeds were paid for loss of the
collateral securing the loan. The proceeds were
paid under a policy First United had procured
because the Bakers did not insure the collateral as provided in the mortgage. Although
admitting that they did not insure the collater870
al, the Bakers have contended that they were
“beneficiaries” of the insurance obtained by
First United, because the cost of the insurance
was added to the loan. The Bakers have basically argued that First United owed them a
duty under the circumstances to provide sufficient insurance to pay off the loan. First United
has basically argued it obtained the insurance
to protect its interests and owed the Bakers no
duty in any regard concerning the insurance.
Without expressly deciding whether First
United owed the Bakers a duty relating to the
insurance, the trial court granted judgment in
favor of First United. We conclude that reasonable minds could reach differing conclusions
on the issue of whether First United exercised
good faith and fair dealing vis-à-vis the Bakers
in accepting a settlement that included a
deduction for depreciation. Reasonable minds
could certainly conclude that accepting such a
settlement injured or impaired the Bakers’
interests in view of the fact that the deduction
for depreciation resulted in a larger balance
remaining unpaid. The question of whether
First United exercised good faith and fair dealing by accepting an insurance settlement that
included a deduction for depreciation (contrary to the loss payment provision in the policy) cannot be answered as a matter of law,
even though all the material facts surrounding
this controversy are undisputed. REVERSED.
IV, by Reif, J.; Gabbard, P.J., and Goodman, J.,
concur.
103,301 — Marcy Lynn Decker, Plaintiff/
Appellant, v. Thomas Stan Davis, Defendant/Appellee. Appeal from Order of the District Court of Kay County, Hon. Rob Galbraith,
Trial Judge, modifying a prior child support
order. Mother contends the trial court erroneously excluded from Father’s income the
reimbursements he receives from his employer
for his vehicle. While 43 O.S. Supp. 2005 § 118
does provide that certain reimbursements be
included in calculating gross income, the
record does not show that any portion of the
reimbursement benefit received by Father significantly reduced his personal living expenses. The trial court did err, however, by calculating Father’s gross income without including
passive income he received from his 401K Plan
and by awarding Father the federal tax exemption for dependent children. REVERSED AND
REMANDED WITH DIRECTIONS. Opinion
from Court of Civil Appeals, Division IV, by
Gabbard, P.J.; Reif, J., and Goodman, J., concur.
Vol. 78 — No. 10 — 3/24/2007
103,729 — Rob Millikan and Kathy Millikan,
Husband and Wife; and Gary Millikan as Successor Trustee of the A.C. and Marjorie D.
Williams Trust, Plaintiffs/Appellants, vs.
American Bank and Trust Company, an Oklahoma State Bank; and Rodney A. Edwards, an
individual, Defendants/Third-Party Plaintiffs/ Appellees, vs. Marjorie D. Williams; Marjorie D. Williams, as Original Trustee, and
Arlen Millikan, as Successor Trustee, of the
A.C. and Marjorie D. Williams Trust, ThirdParty Defendants. Appeal from Order of the
District Court of Tulsa County, Hon. Deborah
C. Shallcross, Trial Judge, granting summary
judgment in favor of Defendants/Third-Party
Plaintiffs on Plaintiffs’ claims for fraud, slander of title, quiet title, conversion, breach of
contract, bad faith breach of contract, and, as to
Defendant Edwards, legal malpractice. The
record reveals no issues of disputed fact as to
any of Plaintiffs’ claims except their claim that
certain Trust property, as to which Bank sought
foreclosure, was not pledged as security for a
Bank loan. The trial court’s judgment is therefore reversed as to that claim. There are no disputed facts as to Plaintiffs’ other claims, and
the trial court’s judgment is legally correct.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED. Opinion from Court of
Reif, J., and Goodman, J., concur.
102,935 — A. Lynn Luhm, as attorney-in-fact,
and
next-of-kin
to
Shirley
Hunter,
Plaintiff/Appellee, vs. Security Health Care
L.L.C., d/b/a Grace Living Centers, Defendant/Appellant. Appeal from an order of the
District Court of Oklahoma County, Hon. Barbara G. Swinton, Trial Judge, denying Defendant’s motion to dismiss or to compel arbitration. Defendant’s arguments were rejected in
Bruner v. Timberlane Manor Limited Partnership,
2006 OK 90, – P.3d –. AFFIRMED. Opinion
from Court of Civil Appeals, Division IV, by
Gabbard, P.J.; Goodman, J., and Reif J., concur.
103,584 — Chesapeake Operating, Inc.,
Plaintiff/Appellant, v. Darwin D. Loomis,
Defendant/Appellee. Appeal from the District
Court of Woodward County, Hon. Joseph P.
Marak, Jr., Trial Judge, denying Plaintiff’s
objections to an appraisers’ report in an action
initiated by Plaintiff under Oklahoma’s Surface Damage Act. The trial court’s confirmation of a report signed by two, rather than all
three, appraisers was not error. The trial court
did not err in confirming a majority report that
Vol. 78 — No. 10 — 3/24/2007
allowed for diminution in value of “remaining
property” caused by having an oil and gas well
operation on the property. AFFIRMED. Opinion from Court of Civil Appeals, Division IV,
by Gabbard, P.J.; Reif, J., and Goodman, J.,
concur.
104,062 — Mill Creek Lumber & Supply
Company and Mill Creek Carpet & Tile Company, Plaintiffs/Appellants, v. Gary Don Wray;
Kama Merie Wray, Defendants/Appellees,
and Michael Murry and Delores Murry, individually and d/b/a Marathon Homes Corporation; Oklahoma National Bank & Trust; Bank
of America, N.A.; Watkins Sand Co., Inc.;
American Overhead Door, Inc.; The County
Commissioners of Wagoner County, State of
Oklahoma; and The Treasurer of Wagoner
County, State of Oklahoma, Defendants, and
Marathon Custom Homes, Inc., Additional
Defendant. Appeal from the District Court of
Wagoner County, Hon. G. Bruce Sewell, Trial
Judge. Mill Creek Lumber & Supply Company
and Mill Creek Carpet & Tile Company (collectively “Mill Creek”) appeal the trial court’s
November 6, 2006, order which granted Don
Wray and Kama Merie Wray’s (collectively
“Wrays”) motion for summary judgment and
denied their cross-motion for summary judgment. Mill Creek further appeals the trial
court’s December 15, 2006, order awarding
Wrays an attorney’s fee and costs. This appeal
was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule
1.36(a)(1), 12 O.S.2001 and Supp. 2003, ch. 15,
app. 1. Based upon our review of the facts and
applicable law, we affirm the trial court in all
respects. AFFIRMED. Opinion from Court of
Civil Appeals, Division IV, by Goodman, J.;
Gabbard, P.J., and Reif, J., concur.
103,342 — Steve Crutchfield, Plaintiff/Garnishor/Appellee, v. Maine Power Holding,
L.L.C., Defendant/Appellant, and Tige Boats,
Inc., Garnishee/Appellant, and Marine Power
Engine Company, Defendant. Appeal from the
District Court of Delaware County, Hon.
Robert G. Haney, Trial Judge. Marine Power
Holding, L.L.C. (MPH) and Tige Boats, Inc.
appeal the trial court’s April 18, 2006, order
denying MPH’s motion to reconsider an earlier judgment on garnishment filed by the court
on February 7, 2006. Based upon our review of
the facts and applicable law, we reverse and
remand for further proceedings consistent
with this opinion. REVERSED AND
REMANDED FOR FURTHER PROCEED-
871
INGS. Opinion from Court of Civil Appeals,
Division IV, by Goodman, J.; Gabbard, P.J., and
REIF, J., concur.
103,005 — Gary Wayne Tarwater, Petitioner,
vs. Metals USA Plates & Shapes, Ace American
Insurance Company, and The Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of the Workers’ Compensation Court, Hon. Ellen C. Edwards, Trial Judge,
denying part of Claimant’s claim. The trial
court’s order is sufficiently specific to meet the
standards of a judicially reviewable decision,
and the decision is supported by competent
evidence. SUSTAINED. Opinion from Court of
Reif, J. and Goodman, J., concur.
103,639 — Hector Sanchez, Petitioner, vs.
Apex Industries, Inc., National American
Insurance Company, and the Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of a Three-Judge Panel of the
Workers’ Compensation Court, Hon. Ellen C.
Edwards, Trial Judge, vacating a portion of the
temporary total disability benefits awarded by
the workers’ compensation trial court and the
trial court’s directive that Employer provide
vocational rehabilitation to Claimant. The
panel’s decision to vacate TTD benefits is supported by competent evidence, and is sustained. However, the panel’s order vacating
the trial court’s award of vocational rehabilitation benefits, which was based on the panel’s
apparent determination that Claimant is in this
country illegally, is not supported by the
record. There is no evidence from which a finding might be made that Claimant is an illegal
immigrant, and without support in the record
for such a finding this Court may not consider
and determine the issue. Aside from
Claimant’s alleged illegal status, Employer
does not argue, and the record does not reveal,
any other ground upon which to deny
Claimant the vocational benefits recommended by the medical expert evidence presented at
trial. The trial court’s determination as to that
issue therefore should be reinstated. SUSTAINED IN PART, VACATED IN PART, AND
REMANDED WITH INSTRUCTIONS. Opinion from Court of Civil Appeals, Division IV,
by Gabbard, P.J.; Reif, J. and Goodman, J.,
concur.
103,284 — S. Vaden Danielson, Petitioner/
Appellee, v. Brian Danielson, Respondent/
872
Appellant. Appeal from the District Court of
Oklahoma County, Hon. Donald L. Deason,
Trial Judge. Brian Danielson (Father) appeals
the trial court’s March 31, 2006, order which
modified the parties’ child custody schedule.
Father contends the order was entered in violation of his due process rights to notice and in
violation of local court rules. Based upon our
review of the facts and applicable law, we
reverse. REVERSED. Opinion from Court of
Civil Appeals, Division IV, by Goodman, J.;
Gabbard, P.J., and Reif, J., concur.
102,157 — Oklahomaranch.com, LLC; Laurie
A. Williams; Daniel Thorne and Peggy Thorne,
husband and wife; Larry Rhodes; Rhodes
Ranching, LLC; Ron Henry; Rocking Four
Ranch; Jesse D. Storts, Jr., DDS; Carl Stewart;
and Warren Whittlesey, Petitioners/Appellees,
v. Charles M. Rowe Revocable Trust, Respondent/Appellant, and The Oklahoma Water
Resources Board, Respondent. Appeal from
the District Court of Carter County, Hon.
Thomas S. Walker, Trial Judge. This case concerns a decision by the Oklahoma Water
Resources Board to allow the Charles M. Rowe
Revocable Trust to use water from streams that
flow through the Trust property. The Trust will
impound the stream water, along with surface
runoff, to provide a wetlands habitat for
migratory water fowl. The Trust partnered
with Ducks Unlimited and state and federal
agencies in creating this habitat. Upon judicial
review, the District Court of Carter County
reversed the part of the Board’s decision allowing the Trust to use water from Henry House
Creek, but affirmed the decision “in all other
respects” including the authorization for the
Trust to use water from the tributaries. In view
of the fact that the Trust is the only party to
appeal the district court’s judgment, this court
will confine review on appeal to determine
whether the district court erred in reversing
the Board’s decision to allow the Trust to use
water from Henry House Creek. The portion of
the judgment affirming the Board’s decision
“in all other respects” (including the Trust’s
use of water from the unnamed tributaries) is
final and unreviewable. In reviewing the district court’s reversal of the Board’s authorization for the Trust to use water from Henry
House Creek, we hold the district court erred
in reversing the Board for the reasons given.
The district court erred in limiting its consideration to the impact on the Trust’s private benefit alone and not considering the public interest. We similarly conclude that the district
court erred in ruling the Board acted inconsis-
Vol. 78 — No. 10 — 3/24/2007
tently in allowing the Trust to use water from
Henry House Creek and also requiring the
Trust to release water in times of shortage. The
controversy in this regard is not whether
Henry House Creek annually carries enough
water to meet existing uses and the Trust’s use.
The Board determined Henry House Creek
annually carried enough water to meet the
existing uses and the Trust’s use. When the district court affirmed the Board’s decision “in all
other respects,” this determination was not
disturbed. This determination was not
appealed and is final. Regulating the usage of
water from a given stream to accommodate the
various demands for that water is a matter
within the expertise of the Board. A court of
review may not substitute its own judgment
for that of an agency particularly in the area of
expertise which the agency supervises. In the
case at hand, there is no evidence that the
Board’s accommodation will not adequately
protect downstream uses, and neither the district court nor this court possess the specialized knowledge, training, experience, or competency to independently determine this issue.
REVERSED AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals,
Division IV, by Reif, J.; Gabbard, P.J., concurs,
and Rapp, V.C.J., dissents.
102,928 — In the Matter of the Application to
Change the Name of A.N.F. Traci Michel
Howard as Mother and next Friend of A.N.F.,
Petitioner/Appellee, v. John R. Farlow,
Respondent/Appellant. Appeal from the District Court of Pittsburg County, Hon. James D.
Bland, Trial Judge. Respondent John R. Farlow
(Father) appeals the trial court’s November 8,
2005, order granting A.N.F. (Daughter) a name
change. Father contends the order is void
because he was unable to attend the name
change hearing as he was incarcerated and did
not receive adequate notice of Daughter’s reasons for the name change. Based on our review
of the facts and applicable law, we affirm in
part, reverse in part, and remand with directions. AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED WITH DIRECTIONS. Opinion from Court of Civil Appeals,
Division IV, by Goodman J.; Gabbard, P.J., and
Reif, J., concur.
103,265 — Feather Smoke Shops, L.L.C.,
Plaintiff/Appellee, v. Oklahoma Tax Commission, Defendant/Appellant. Appeal from
Order of the District Court of Osage County,
Hon. B. David Gambill, Trial Judge, granting a
temporary injunction in favor of Plaintiff preVol. 78 — No. 10 — 3/24/2007
venting the Oklahoma Tax Commission from
enforcing an emergency rule during the pendency of proceedings. The rule, OAC 710:70-212, restricts the amount of cigarettes that
wholesalers can sell to tribal retailers.
Although the validity of this rule was upheld
in Campbell Wholesale Company v. Oklahoma Tax
Commission, 2007 OK CIV APP 16, — P.3d —,
the Campbell case did not address most of the
issues raised by Plaintiff in this action, including whether the rule conflicts with the language of the Osage Nation’s Tobacco Tax Compact with the State of Oklahoma, or with the
requirement that disputes concerning enforcement of the Compact be submitted to binding
arbitration. OTC does not contest that Plaintiff
will sustain economic loss if the rule is
enforced during these proceedings, and we
disagree with OTC that the rule cannot be challenged because it was promulgated in accordance with the requirements of the Administrative Procedures Act. Under 75 O.S.2001
§ 306(A), a validly promulgated rule may be
challenged in a declaratory judgment action if
it violates legal rights or privileges.
AFFIRMED. Opinion from Court of Civil
Appeals, Division 4, by Gabbard, P.J.; Goodman, J., and Reif, J., concur.
102,685 — Kathleen Underwood, Petitioner/Appellant/Counter-Appellee, v. Michael
Ray Underwood, Respondent/Appellee/
Counter-Appellant. Appeal from the District
Court of LeFlore County, Hon. Danita G.
Williams, Trial Judge. This is the appeal and
counter-appeal of Wife Kathleen and Husband
Michael Underwood of the trial court’s October 7, 2005, judgment dissolving their marriage. The decree divided the martial estate in
such a way that both parties now seek appellate review. Based upon our review of the facts
and applicable law, we affirm in part, reverse
in part and remand with directions.
AFFIRMED IN PART, REVERSED IN PART
IV, by Goodman, J.; Gabbard, P.J., and Reif, J.,
concur.
ORDERS DENYING REHEARING
(Division No. 1)
103,427 — Public Supply Company and Old
Republic Insurance Co., Petitioners, v. Kerry
Mucker and The Workers’ Compensation
873
Court, Respondents. Petitioner’s Petition for
Rehearing is DENIED.
(Division No. 2)
103,981 — Pam Morgan, Appellant/Plaintiff,
vs. James C. Mayoza, M.D., d/b/a Tulsa
Orthopaedic Associates, Inc.; Saint Francis
Hospital, Inc.; and John Doe/Jane Doe,
Appellees/Defendants. Plaintiff/Appellant’s
Petition for Rehearing is DENIED.
101,973 — Irene Stephanie Thompson,
Plaintiff/Appellee, v. Bar-S. Foods Co., a
Delaware corporation, Defendant/Appellant.
The Appellee’s Petition for Rehearing is therefore DENIED. All judges concur.
(Division No. 3)
Buettner, J., and Bell, J., concur.
Hansen, P.J., dissents:
I dissent to the denial of rehearing. Plaintiff’s
delay in obtaining service of processs was her
attempt to obtain the § 1-1708.1E. medical affidavit. The Oklahoma Supreme Court has held
this requirement to be unconstitutional. I
would grant rehearing and reverse the trial
court’s order of dismissal.
103,915 — Jim Roth, Plaintiff/Appellee, vs.
Steven Wilson, d/b/a Metro Home Solutions,
Defendant/Appellant. Defendant/Appellant’s
Petition for Rehearing filed March 1, 2007 is
DENIED.
103,553 — Gerald Dwain Spears, Plaintiff/
Appellee vs. Oklahoma Department of Transportation and Oklahoma Real Estate Appraiser
Board, Defendant/Appellants. Plaintiff/
Appellee’s Petition for Rehearing is DENIED.
103,160 — Spring Creek Conservation Coalition, Plaintiff/Appellee, v. Oklahoma Department of Wildlife Conservation and the Oklahoma Wildlife Commission, Defendants/
Appellants. Defendant/Appellant’s Petition f
for Rehearing is DENIED.
102,749 — CitiBank (South Dakota), N.A.,
Plaintiff/Appellee, v. Christy L. Martin, Defendant/Appellant. Appellant’s Motion for
Rehearing is DENIED.
103,739 — Wendall Jack Derrick, Plaintiff/
Appellant, v. State of Oklahoma, ex rel. Department of Public Safety, Defendant/Appellee.
Appellant’s Petition for Rehearing is DENIED.
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resume and cover letter to: Robert Barker, Human
Resources Director, P.O. Box 1449, Stillwater, Oklahoma 74076 by April 6, 2007. EOE, M/F/H/V
CORPORATE/SECURITIES ASSOCIATE with 2-5
yrs. experience. Prestigious regional law firm seeks
a candidate for its Oklahoma City office who is committed to the highest degree of quality of work.
Evidence of academic excellence is paramount.
Candidates must be autonomous and also able to
work with supervision. Corporate law experience
and a working knowledge of securities law are
required. Candidates should be goal oriented and
interested in opportunities for advancement within
the Firm through dedication and hard work. Compensation package commensurate with experience
and performance. Send resume, cover letter outlining previous experience, transcript and short
writing sample to: Conner & Winters, LLP, Attn:
Hiring Partner, 211 North Robinson, 1700 One
Leadership Square, Oklahoma City, OK 73102.
BUSY CIVIL LITIGATION FIRM seeks an experienced
immigration attorney for an immediate position.
Applicant must possess 3 - 5 years experience, and be
able to handle a variety of immigration matters. Experience in criminal and family law a plus but not
required. Compensation package negotiable. Send
replies to Box “G,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152
CORPORATE ATTORNEY: Excellent opportunity in a
rapidly growing, dynamic, publicly traded, energy
company environment. This is a newly created position
responsible for handling general corporate, transactional and regulatory matters including the coordination of SEC compliance & reporting. Requires a JD
from an accredited law school. Ideal candidate will
have 2-4 years experience in mergers and acquisitions,
corporate securities, corporate finance, or similar areas.
Generous compensation and benefit package included.
EOE. Interested candidates should submit resume in
confidence to: Hiland Partners, 205 W. Maple, Suite
1100, Enid, OK 73703 [email protected]
Vol. 78 — No. 10 — 3/24/2007
POSITION WANTED
CLASSIFIED INFORMATION
LICENSED OKLAHOMA ATTORNEY seeks employment with reputable OKC metro area firm. 14-year
legal career includes broad experience in general practice, especially family law, child-support enforcement,
criminal and civil litigation, and most recently Social
Security Disability claims representation. Available
immediately. Please call Philip at (405) 397-4134 or
e-mail [email protected].
CLASSIFIED RATES: One dollar per word per insertion.
Minimum charge $35. Add $15 surcharge per issue for
blind box advertisements to cover forwarding of replies.
Blind box word count must include “Box ____ ,
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.” Display classified ads with bold
headline and border are $50 per inch. See
www.okbar.org for issue dates and Display Ad sizes and
rates.
DEADLINE: Tuesday noon before publication. Ads
must be prepaid. Send ad (e-mail preferred) in writing
stating number of times to be published to:
Melissa Brown
Oklahoma Bar Association
P.O. Box 53036
Oklahoma City, OK 73152
E-mail: [email protected]
Publication and contents of any advertisement is not to be
deemed an endorsement of the views expressed therein,
nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved.
All placement notices must be clearly non-discriminatory.
FOR RENT
VACATION RENTALS: Italy/France. 18th C Tuscan
villa six miles from Florence, 3 bedrooms, 3 baths, airconditioned, professional-level kitchen. 1,500 to 1,900
euros, weekly. Please contact Ken Lawson, 20 years
representing owners of studios to castles. www.lawofficeofkenlawson.com, (206) 632-1085, [email protected].
Feel like you’ve painted
yourself into a corner?
If you need help coping with
emotional or psychological stress,
please call
1 (800) 364 - 7886
Lawyers Helping
Lawyers
Before it’s too late.
Confidential. Responsive. 24/7.
Vol. 78 — No. 10 — 3/24/2007
877
878
Vol. 78 — No. 10 — 3/24/2007
Vol. 78 — No. 10 — 3/24/2007
879

Mar 24 - Oklahoma Bar Association

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