Apr 28 - Oklahoma Bar Association

Transcription

Volume 78
◆
No. 13
◆
Apr. 28, 2007
Cour t Mater ial
1050
The Oklahoma Bar Journal
Vol. 78 — No. 13 — 4/28/2007
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
MAY
1
OBA Ask A Lawyer Day; Oklahoma City and Tulsa; Contact: Lori
Rasmussen (405) 416-7018
2
OBA Diversity Committee Meeting; 3 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Linda Samuel-Jaha (405) 290-7030
3
Oklahoma Hispanic Bar Network Meeting; 3 p.m.; Oklahoma Bar
Contact: Saul Olivarez (405) 227-9700
4
Oklahoma Uniform Jury Instructions Committee Meeting;
10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Chuck
Adams (918) 631-2437
Oklahoma Trial Judges Association Meeting; 12 p.m.; Oklahoma
Bar Center, Oklahoma City; Contact: Judge Barbara Swinton
(405) 713-7109
8
OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Steven Dobbs (405) 235-7600
9
LRE Project Citizen Portfolio Showcase; 8:30 a.m.; Oklahoma
Bar Center, Oklahoma City; Contact: Jane McConnell
(405) 416-7024
State Legal Referral Service Task Force Meeting; 1 p.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar
Center, Tulsa; Contact: Dietmar Caudle (580) 248-0202
10
Oklahoma City Estate Planning Council Meeting; 7:30 a.m.;
Crowne Plaza Hotel, Oklahoma City; Contact: June Klaassen
(405) 842-9860
OBA Bench and Bar Committee Meeting; 12 p.m.; Oklahoma Bar
Contact: Jack Brown (918) 581-8211
OBA Legal Intern Committee Meeting; 3:45 p.m.; Oklahoma Bar
Center, Oklahoma City; Contact: H. Terrell Monks (405) 733-8686
11
OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City and OSU Tulsa; Contact: Donelle Ratheal
(405) 842-6342
BAR CENTER STAFF
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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
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McComb, Jeanne Minson, Renee Montgomery,
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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.
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Board of Bar Examiners (405) 416-7075
Oklahoma Bar Foundation (405) 416-7070
Vol. 78 — No. 13 — 4/28/2007
For more events go to www.okbar.org/news/calendar.htm
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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
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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
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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.
1051
★★★★★★
Searching for Spanish
Speaking Volunteers
We are expecting a large number of calls
from Spanish speakers needing legal assistance.
• Spanish Speaking Attorneys • Non-Attorney Translators
★★★★★★
Volunteer Lawyers Needed
to Give Free Legal Advice
• Several hundred attorneys needed in Tulsa and Oklahoma City
• Tuesday, May 1
• 9 a.m. to 9 p.m.
• Location: OETA Studios in Tulsa and Oklahoma City
• Two-hour shifts.
• OBA provides reference guides for commonly asked questions
• Food and snacks will be served
To sign up, contact:
• Tulsa County:
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Lawyer
Ask A
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• Other Counties:
Call your Law Day Chairperson to help answer phones.
1052
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Vol. 78 — No. 13 — 4/28/2007
OKLAHOMA BAR ASSOCIATION
table of
contents
Apr. 28, 2007
• Vol. 78
• No. 13
page
1051
1054
1057
1079
1125
1144
1145
EVENTS CALENDAR
INDEX TO COURT OPINIONS
SUPREME COURT OPINIONS
COURT OF CRIMINAL APPEALS OPINIONS
COURT OF CIVIL APPEALS OPINIONS
NEW ATTORNEYS
BAR NEWS
THE JUDICIAL NOMINATING COMMISSION ELECTIONS
1149
AGENDA:
SOVEREIGNTY SYMPOSIUM XX
1158
MANDATES
Vol. 78 — No. 13 — 4/28/2007
1053
Index To Opinions Of Supreme Court
George Paul Glover and Glover Construction Company, Inc., Appellees, vs. State of
Oklahoma, ex rel., Oklahoma Department of Transportation, Appellant. No. 103,761 ..........1057
In re: the Lorice T. Wallace Revocable Trust dated December 26, 1974, as restated effective October 5, 1993 and as amended on February 12, 1998, the Lorice T. Wallace
Irrevocable Trust dated February 8, 1996, and the Lorice T. Wallace Irrevocable Trust
dated September 11, 1992, also known as the Lorice T. Wallace Life Insurance Trust,
and the Lisa Frances Wallace Discretionary Spendthrift Trust. Stephen Paul Wallace,
Appellant, vs. Ronald Saffa and The Trust Company of Oklahoma,
Appellees. No. 101,511.......................................................................................................................1057
2007 OK 20 PAMELA WILSON, Petitioner, v. CATOOSA PUBLIC SCHOOLS,
COMPSOURCE OKLAHOMA, and THE WORKERS’ COMPENSATION COURT,
Respondents. No. 102,727 .................................................................................................................1057
2007 OK 21 OKLAHOMA CITY ZOOLOGICAL TRUST, A Public Trust,
Plaintiff/Appellee, v. STATE OF OKLAHOMA ex rel. PUBLIC EMPLOYEES RELATIONS BOARD, A STATE AGENCY, Defendant, THE AMERICAN FEDERATION
OF STATE, COUNTY AND MUNICIPAL EMPLOYEES UNION, LOCAL 2406,
AFL-CIO, Defendant/ Appellant. No. 101,978..............................................................................1060
2007 OK 22 IN RE: APPLICATION OF THE OKLAHOMA BAR ASSOCIATION TO
AMEND THE OKLAHOMA RULES OF PROFESSIONAL CONDUCT AND TO
AMEND RULE 1.4 OF THE RULES GOVERNING DISCIPLINARY PROCEEDINGS
SCBD No. 5266....................................................................................................................................1063
2007 OK 23 DUSTIN HEATH JARVIS, Petitioner, v. THE HONORABLE JAMES R.
WOLFE, Associate District Judge of the District Court of Choctaw County,
Oklahoma, Respondent. No. 104,376 ..............................................................................................1064
2007 OK 24 DAVID EARL SHERO Plaintiff/ Appellant, v. GRAND SAVINGS BANK,
Defendant/Appellee. No. 102,154 ...................................................................................................1065
2007 OK 25 IN THE MATTER OF THE ASSESSMENTS FOR THE YEAR 2005 OF CERTAIN REAL PROPERTY OWNED BY ASKINS PROPERTIES, L.L.C. ASKINS
PROPERTIES, L.L.C., Petitioner/Appellant, v. OKLAHOMA COUNTY ASSESSOR
and the BOARD OF EQUALIZATION OF OKLAHOMA COUNTY,
Defendants/Appellees. No. 102,828................................................................................................1068
2007 OK 26 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION,
Complainant, v. BRETT DEAN SANGER Respondent. No. SCBD-5235 ..................................1076
Index To Opinions Of Court Of Criminal Appeals
2007 OK CR 11 STATE OF OKLAHOMA, Appellant, v. GREG COSTELLO
SAYERWINNIE, Appellee. No. S-2006-74 ......................................................................................1079
2007 OK CR 12 RICHARD EUGENE GLOSSIP, Appellant, v. STATE OF OKLAHOMA,
Appellee. No. D 2005-310..................................................................................................................1080
2007 OK CR 13 HARLAN EVANS, Appellant, v. STATE OF OKLAHOMA, Appellee.
Case No. F-2005-673 ...........................................................................................................................1103
2007 OK CR 14 ISIDRO MARQUEZ-BURROLA, Appellant, v. THE STATE OF
OKLAHOMA, Appellee. Case No. D-2003-1140 ...........................................................................1105
2007 OK CR 15 CITY OF ELK CITY, Appellant v. BOBBY TAYLOR, Appellee.
No. SR-2006-1101 ................................................................................................................................1120
1054
Vol. 78 — No. 13 — 4/28/2007
Index To Opinions Of Court Of Civil Appeals
CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS...........................1125
CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS...........................1126
2007 OK CIV APP 23 PHILLIP ESTRADA, Plaintiff/Appellant, v. PORT CITY
PROPERTIES, INC., d/b/a HODGES WAREHOUSE, Defendant/Appellee.
No. 102,834 ..........................................................................................................................................1127
2007 OK CIV APP 24 STATE OF OKLAHOMA, ex rel., PROTECTIVE HEALTH SERVICES OF THE OKLAHOMA STATE DEPARTMENT OF HEALTH, Plaintiff/
Appellant, v. BILLINGS FAIRCHILD CENTER, INC., Defendant/Appellee.
Case No. 101,767.................................................................................................................................1130
2007 OK CIV APP 25 STATE OF OKLAHOMA, EX REL. DEPARTMENT OF
TRANSPORTATION, Plaintiff/Appellee, v. DAVIS KELLY and ANNE KELLY,
Defendants/Appellants, Roy Elmer Kelly and Callie Kelly Family Living Trust, both
deceased, their known and unknown heirs, executors, administrators, legatees,
devisees, trustees, creditors and assigns; Davis R. Kelly and Roma Lee Cox,
Co-Trustees; and the LeFlore County Treasurer, Defendants. Case No. 102,566......................1134
2007 OK CIV APP 26 SPRING CREEK CONSERVATION COALITION,
Plaintiff/Appellee,
v.
OKLAHOMA
DEPARTMENT
OF
WILDLIFE
CONSERVATION and the OKLAHOMA WILDLIFE COMMISSION,
Defendants/Appellants. Case No. 103,160 ....................................................................................1137
2007 OK CIV APP 27 DAN JAY GILBRAITH, Plaintiff/Appellee, v. AMY CLEVENGER,
f/k/a AMY THOMAS Defendant/Appellant, and, OKLAHOMA DEPARTMENT
OF HUMAN SERVICES, ex rel. CHILD SUPPORT ENFORCEMENT, Third-Party
Defendant. Case No. 102,966 ............................................................................................................1138
2007 OK CIV APP 28 MUMMAGRAPHICS, INC., d/b/a WEBGUY INTERNET
SOLUTIONS, Plaintiff/Appellant, v. CRO, Inc., d/b/a EL CHICO MEXICAN CAFÉ,
Defendant/Appellee. Case No. 103,648..........................................................................................1141
Vol. 78 — No. 13 — 4/28/2007
1055
SEMINOLE COUNTY LEGAL FORUM
SEMINOLE COUNTY COURTHOUSE, SOUTH COURTROOM
WEWOKA, OKLAHOMA
WEDNESDAY, MAY 2, 2007
Tuition:
$50 in advance or $55 at the door
(Includes Cost of Lunch and Reception)
5 hours MCLE Credit,
1 hour ethics
Program Planner/Moderator: Gordon Melson
CLE FOR HICKS EPTON LAW DAY EVENT
8 a.m. – 8:30 a.m.
REGISTRATION & WELCOME (Coffee & donuts will be served)
8:30 a.m. – 9:10 a.m.
AN OVERVIEW OF SEPARATION OF POWERS & JUDICIAL INDEPENDENCE
— Gordon R. Melson, Attorney and Retired District Judge
9:10 a.m. – 10 a.m.
UPDATE ON CRIMINAL LAW
— Randall Coyne, Professor of Law, University of Oklahoma
10 a.m. – 10:10 a.m.
BREAK
10:10 a.m. – 11 a.m.
UPDATE ON FAMILY LAW
— Robert Spector, Professor of Law, University of Oklahoma
11 a.m. – 11:50 a.m.
INCREASING ETHICS, PROFESSIONALISM & CIVILITY
— Allen K. Harris, Attorney at Law
12 p.m. – 12:30 p.m.
LAW DAY LUNCHEON
12:30 p.m. – 1 p.m.
RESPONSIBILITIES OF LAWYERS TO THE LEGAL PROFESSION
— Stephen D. Beam, Oklahoma Bar Association President
1 p.m. – 1:30 p.m.
RECEPTION AND UPDATE ON THE OKLAHOMA BAR & LEGAL PROFESSION
— John Morris Williams, Oklahoma Bar Association Executive Director
REGISTRATION FORM
Full Name: _____________________________________________ OBA # _________________
Address: _______________________________________________________________________
City: _______________________ State: __________________ Zip: ______________________
County: _________________________
Phone: _____________________________________
Make Check Payable to:
SEMINOLE COUNTY BAR ASSOCIATION
P.O. Box 1300, Wewoka, OK 74884
Questions:
Contact Dale Elsener, Seminole County Bar President
(405) 382-1204; Tim Olsen, Law Day Chairman (405) 257-3386;
or Tena Inselman (405) 257-2719.
MAIL TO ABOVE ADDRESS
1056
Vol. 78 — No. 13 — 4/28/2007
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)
George Paul Glover and Glover
Construction Company, Inc., Appellees, vs.
State of Oklahoma, ex rel., Oklahoma
Department of Transportation, Appellant.
No. 103,761. April 9, 2007
ORDER
Appeal is reassigned to Court of Civil
Appeals, Oklahoma City Division.
DONE BY ORDER OF THE SUPREME
COURT this 9th day of April, 2007.
/s/ James R. Winchester,
JAMES R. WINCHESTER,
CHIEF JUSTICE
In re: the Lorice T. Wallace Revocable Trust
dated December 26, 1974, as restated
effective October 5, 1993 and as amended on
February 12, 1998, the Lorice T. Wallace
Irrevocable Trust dated February 8, 1996,
and the Lorice T. Wallace Irrevocable Trust
dated September 11, 1992, also known as the
Lorice T. Wallace Life Insurance Trust, and
the Lisa Frances Wallace Discretionary
Spendthrift Trust. Stephen Paul Wallace,
Appellant, vs. Ronald Saffa and The Trust
Company of Oklahoma, Appellees.
No. 101,511. April 20, 2007
ORDER
Appeal is withdrawn from assignment to
Court of Civil Appeals, Oklahoma City Divisions and assigned to the Court of Civil
Appeals, Tulsa Divisions.
DONE BY THE ORDER OF THE SUPREME
CHIEF JUSTICE
2007 OK 20
PAMELA WILSON, Petitioner, v. CATOOSA
PUBLIC SCHOOLS, COMPSOURCE
OKLAHOMA, and THE WORKERS’
COMPENSATION COURT, Respondents.
No. 102,727. April 10, 2007
ON CERTIORARI TO THE COURT OF
Vol. 78 — No. 13 — 4/28/2007
CIVIL APPEALS DIVISION IV
¶0 Trial court and three-judge appeal panel
found the cause of claimant’s vascular injury
not in excess of that experienced in everyday
life and denied benefits. The Court of Civil
Appeals reversed and remanded with directions for the trial court to award benefits to
claimant.
CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION
VACATED; ORDER OF THE TRIAL COURT
SUSTAINED.
Lawrence A. G. Johnson, Tulsa, Oklahoma, for
Petitioner.
Dana L. Gish, McCORMICK, SCHOENENBERGER & GISH, Tulsa, Oklahoma, for
Respondents.
HARGRAVE, J.
SUMMARY OF FACTS AND
PROCEDURAL HISTORY
¶1 In December 2003, while employed as a
school cafeteria worker for employer, Catoosa
Public Schools, Pamela Wilson suffered a
stroke. On March 17, 2004, she filed a Form 3
alleging that her stroke resulted from lifting a
heavy object while she was at work on December 19, 2003, and that her injuries included
aphasia and paralysis of her arm and leg.
Employer denied Wilson’s injury was workrelated.
¶2 Trial occurred in August 2005. Wilson was
unable to effectively communicate verbally
and the trial court accepted testimony from
friends and family members, as well as information in the medical reports, to establish the
chain of events leading to Wilson’s stroke,
which is as follows. On the afternoon of Friday,
December 19, 2003, Wilson was carrying an
object from one place to another at work.
Although Wilson could not remember the
object, its weight, size, or how far or long she
carried it, several witnesses said Wilson had
expressed that she had been carrying “something heavy.” The witnesses also testified Wilson said that when she set the object down she
felt a pain in her left jaw, and her vision
1057
became blurred. She continued to have pain on
the left side of her face the rest of the day.
¶3 Still in some discomfort the next morning,
December 20, 2003, Wilson felt well enough to
go shopping with a friend. A few hours later,
while sitting in the friend’s car, Wilson suddenly was unable to speak or to move her right
side. She was taken to the hospital, where she
was diagnosed with having had a stroke. Testing revealed she had a completely occluded
left internal carotid artery.
¶4 Wilson was treated by Dr. Todd Dunaway, M.D., a neurologist. Dr. Dunaway was of
the opinion that Wilson had suffered a spontaneous carotid artery dissection which ultimately resulted in a stroke. It was Dunaway’s opinion that the activity Wilson was engaged in
was within what an average or reasonable person would engage in on a daily basis. Dr. Dunaway testified that such an artery dissection
can occur from any activity that causes systemic arterial pressure to rise. He listed several everyday activities that an average or reasonable person would engage in that could
raise blood pressure, one of which was heavy
lifting. Wilson relied upon the testimony and
medical report of Dr. Dunaway as her expert
medical evidence.
¶5 The Workers’ Compensation Court, relying specifically upon Dr. Dunaway’s report
and deposition testimony, denied Wilson’s
claim, finding that Wilson’s vascular injury did
not arise out of stress in excess of that experienced in the course of everyday living. This
finding was unanimously affirmed by the
three-judge panel of the Workers’ Compensation Court, wherein they found the judgment
of the trial court was not against the clear
weight of the evidence nor contrary to law.
¶6 The Court of Civil Appeals reversed and
remanded with directions for the trial court to
award benefits to the claimant. The Court of
Civil Appeals found that Wilson’s injury was
due to a physical stress in excess of that experienced in normal, everyday life and that neither the trial court, nor the appeal panel’s decisions were supported by competent evidence.
The Court of Civil Appeals substituted its own
judgment finding that cafeteria jobs involve a
degree of physical stress that is not common to
everyday life, and that it is unlike home food
preparation or other everyday activity.
1058
¶7 This Court has stated that the standard of
review in cases such as this is the any-competent-evidence test. In Parks v. Norman Municipal
Hospital, 1984 OK 53, 684 P.2d 548, ¶2 we
found:
We hold that while the three-judge panel is
governed, in its re-examination of the trial
judge’s factual findings, by the clearweight-of-the-evidence standard, the
Supreme Court or the Court of Appeals, in
reviewing the panel-altered factual determinations, must apply the any-competentevidence test.
Furthermore, this Court has also held:
Except for jurisdictional issues, this court
must accept as binding a trial tribunal’s
findings of fact which are supported by
any competent evidence. This court does
not weigh the evidence to determine
where the preponderance lies, but rather
examines the record only to ascertain
whether the trial tribunal’s findings are
supported by any competent probative
evidence. If they are not, the matter presents but a question of law determinable by
this Court on review.
Decker v. Oklahoma State University 1988 OK
152, ¶7, 766 P.2d 1372, 1374. In reviewing the
factual finding of the three-judge panel, we
must affirm unless we find that there is no
competent evidence to support their ruling.
¶8 85 O.S. Supp. 2003 § 3(12)(b)1 states:
“Injury” or “personal injury” includes
heart-related or vascular injury, illness or
death only if resultant from stress in excess
of that experienced by a person in the conduct of everyday living. Such stress must
arise out of and in the course of a
claimant’s employment.
For the claimant to be eligible for workers’
compensation benefits, she must have suffered
stress in excess of that experienced by a person
in the conduct of everyday living. The trial
court and the three-judge panel found evidence that her injury was not in excess of that
experienced by a person in the conduct of
everyday living. The evidence they relied
upon in so finding is the testimony of Dr. Dunaway. Dr. Dunaway’s testimony is competent
evidence, and as such, supports the finding of
the three-judge panel.
Vol. 78 — No. 13 — 4/28/2007
¶9 The claimant also raised issues not
reached by the Court of Civil Appeals in the
opinion below, as a result of a finding in her
favor. Wilson argued that the statute was
vague and ambiguous by using a highly technical term “stress” and works such an injustice
to workers suffering a work related stroke, that
we must declare it void for vagueness or revert
to the pre-existing common law. She also
argues that the legislature, in amending the
statute in 2005, did so to effect a change to
doubtful law. We find these arguments to be
without merit.
Compensable injury includes heart-related
or vascular injury, illness or death only if
an accident or the Claimant’s employment
is the major cause of the heart-related or
vascular injury. Such injury shall be compensable only if it is demonstrated that the
exertion necessary to produce the harm is
extraordinary and unusual in comparison
to the other occupations and that the occupation was the major cause of the harm.
The injury must be established by objective
medical evidence, as defined in this
section.
¶10 Wilson first urges this Court to apply a
de novo review. Wilson cites Johnson v. City of
Woodward, 2001 OK 85, 38 P.3d 218, to support
this contention. In that case, this Court was
addressing the trial court’s interpretation of
statutes which constituted a legal ruling. As
we have previously stated, the standard of
review in the present matter is the any-competent-evidence test. Parks v. Norman Municipal
Hospital, 1984 OK 53, 684 P.2d 548, ¶2. In this
matter we are reviewing the factual determination of the three-judge tribunal.
When construing a statute which has been
amended, we are mindful that the legislature
may have intended either to clarify that which
previously appeared doubtful, or to effect a
change in the existing law. Johnson v. City of
Woodward, 2001 OK 85, ¶7, 38 P.3d 218; Arrow
Tool and Gauge v. Mead, 2000 OK 86, ¶15, 16 P.3d
1120, 1126. From the plain language of the revision in the statute, it appears the legislature
was changing the law, not making the terms
less doubtful. The requirements of the statute
at the time of the Wilson injury for compensability were “only if resultant from stress in
excess of that experienced by a person in the
conduct of everyday living.” The revision’s
language states that “such injury shall be compensable only if it is demonstrated that the
exertion necessary to produce the harm is
extraordinary and unusual in comparison to
the other occupations and that the occupation
was the major cause of the harm.” It appears
that the legislature has made the determination of compensability more difficult for
claimants. Thus, we find this final argument of
the claimant to be without merit.
¶11 Next, we will address Wilson’s contention that the term “stress” is a highly technical term which causes an ambiguity in the
statute which defeats the object of workers’
compensation. Wilson urges that the term
“stress” is a technical term and must be given
its technical or scientific meaning. The definition Wilson wishes to assign to stress is “the
response of the body to the flight-or-fight reaction to violent stimuli such as to cause the
adrenal medulla to secrete catecholamine hormones, often with disastrous results.” Wilson
cites to many medical journals; however, she
first cites a medical dictionary which defines
stress as “forcibly exerted influence; pressure.”2 This is also the common definition of
stress. We find Wilson’s argument that the definition of “stress” is vague and ambiguous to
be without merit. Statutory construction is
unnecessary because the legislature’s intent for
use of the word “stress” can be ascertained by
the plain language of the statute. Johnson v. City
of Woodward, 2001 OK 85, 38 P.3d 218, ¶6.
¶12 Finally, we address Wilson’s contention
that the legislature’s recent amendment to 85
O.S. Supp. § 3(12)(b) was done to change a
doubtful law. The current language is now
found at 85 O.S. Supp. 2005 § 3(13)(b) and provides:
Vol. 78 — No. 13 — 4/28/2007
¶13 The Court of Civil Appeals is therefore
in error and their opinion is vacated.
CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION
VACATED; ORDER OF THE TRIAL COURT
SUSTAINED.
¶14 CONCUR: WINCHESTER, C.J.,
EDMONDSON, V.C.J., LAVENDER, HARGRAVE, OPALA, KAUGER, WATT, TAYLOR,
JJ.
¶15 DISSENT: COLBERT, J.
1. The subsection number and language of the statutory definition
for compensable injury have now been amended. See 85 O.S. Supp.
2005 § 3(13).
1059
2. Dorland’s Medical Dictionary, W. B. Saunders Co., Phila., 25th
I.
Ed.
ANATOMY OF LITIGATION
2007 OK 21
OKLAHOMA CITY ZOOLOGICAL TRUST,
A Public Trust, Plaintiff/Appellee, v. STATE
OF OKLAHOMA ex rel. PUBLIC
EMPLOYEES RELATIONS BOARD, A
STATE AGENCY, Defendant, THE
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES
UNION, LOCAL 2406, AFL-CIO, Defendant/
Appellant.
No. 101,978. April 10, 2007
ON APPEAL FROM THE DISTRICT
COURT, OKLAHOMA COUNTY
CAROLYN R. RICKS, TRIAL JUDGE
¶0 The Oklahoma City Zoological Trust
brought an action against the Public Employees Relations Board and the American Federation of State, County and Municipal Employees for declaratory and injunctive relief from
the Oklahoma Municipal Employees Collective Bargaining Act. The district court found
the Zoological Trust was not subject to the
terms of the Act and granted the requested
injunctive relief. American Federation of State,
County and Municipal Employees, defendant
below, brought this appeal which stands
retained for this court’s disposition.
AFFIRMED
Kenneth Dale Jordan, Diane Lewis, Marsha D.
Harrod, Oklahoma City, Oklahoma, for plaintiff/appellee Oklahoma City Zoological Trust.
W.A. Drew Edmondson, Attorney General of
Oklahoma, Sandra D. Rinehart, Senior Assistant Attorney General, Oklahoma City, Oklahoma for defendant, Public Employees Relations Board.
James R. Moore, Sue Wycoff, Chanda R. Graham, Moore & Vernier, Oklahoma City, Oklahoma, for defendant/appellant, American
Federation of State, County and Municipal
Employees.
Opala, J.
¶1 The dispositive issue here is whether
Oklahoma City may be considered to stand in
the status of legal employer vis-a-vis the
employees of the Oklahoma City Zoological
Trust, a public trust. The trial court’s answer
was in the negative and today we reaffirm its
correctness.
1060
¶2 On 1 November 2004, the same day the
Oklahoma Municipal Employee Collective
Bargaining Act (Act)1 went into effect, the
American Federation of State, County, and
Municipal Employees (AFSCME) petitioned
the Public Employees Relations Board (PERB)
to determine the appropriate bargaining unit
for Oklahoma City Zoological Trust (Zoo Trust
or Trust) employees. The Trust brought on 9
November 2004 this action against PERB and
AFSCME for declaratory and injunctive relief
from the Act’s application. AFSCME moved to
dismiss, arguing that the Trust failed to
exhaust its administrative remedies.
¶3 The district court found on 24 March 2005
that the Zoo Trust was not a municipal
employer within the meaning of the Act, PERB
would be exceeding its authority if it were to
certify AFSCME as the exclusive bargaining
representative of Trust employees, and the
Trust was entitled to the injunctive relief it
sought. AFSCME appealed.
¶4 AFSCME argues here the Trust has not
exhausted its administrative remedies, the district court erred in declaring the Act did not
apply to the Trust, the Trust was created by
Oklahoma City (City), and the Trust’s arguments are contrary to the intent of the Act. The
Trust argues that exhaustion of administrative
remedies does not apply here, the Act was
never intended to be imposed upon the Trust,
nor is the latter entity an “authority” created
by the City.
II.
STANDARD OF REVIEW
¶5 “An appellate court’s standard of review
is not mere ritualistic legal liturgy. It defines
the permissible sweep of critical testing to be
undertaken by a reviewing court.”2 A declaratory judgment of a competent court is “reviewable in the same manner as other judgments.”3
We hence review the record to determine if the
trial court abused its discretion in construing
the statute in the manner in which it did or its
decision is contrary to the evidence adduced.4
An abuse of discretion takes place when the
decision is based on an erroneous interpretation of the law, on factual findings that are
unsupported by proof, or represents an unreasonable judgment in weighing relevant factors.5 This court will decline to affirm only
Vol. 78 — No. 13 — 4/28/2007
those trial court’s decisions which do not conform to the law’s standard of correctness.
¶6 The Legislature’s intent in passing the
law submitted for judicial testing governs its
construction.6 The language of an entire act is
afforded a “reasonable and sensible construction”7 in a manner consistent with other
statutes.8 It is presumed “the Legislature
expressed its intent in the statute … and …
intended what it expressed.”9 When the language of the statute is plain, it will be followed
without further inquiry. When further inquiry
is needed, this court is “ not free to rewrite the
statute ….[ T]he sole function of the courts —
at least where the disposition [called for] by
the text is not absurd — is to enforce it [the
statute] according to its terms.”10 Courts must
“if possible, construe a statute to give every
word some operative effect”11 and vigorously “
resist reading words or elements into a statute
that do not appear on its face”.12 The legislature
expresses its purpose by words. “It is for [this
court] to ascertain [the meaning of these
words] — neither to add nor to subtract, neither to delete nor to distort.”13 This court is
thus without authority to supplement by judicial interpretation the classification of persons
subject to statutory authority “but must accord
the language used by the Legislature, it being
unambiguous, … fair, reasonable, plain and
ordinary import or meaning”14
III.
THE ZOO TRUST WAS NOT REQUIRED
TO EXHAUST ADMINISTRATIVE
REMEDIES BEFORE BRINGING ITS
DECLARATORY JUDGMENT SUIT
¶7 The Trust need not exhaust any administrative remedies. Ordinarily, a plaintiff is
required to pursue all available administrative
relief before bringing a court action.15 The failure to do so is fatal.16 But one need not exhaust
administrative remedies where, as here, “the
power of the agency to act at all under the
statutory scheme it is charged with administering” is being challenged.17 Because the Trust
challenges PERB’s jurisdiction over its personnel, it is not required to exhaust administrative
remedies. The district court did not lack adjudicative power over the Trust’s declaratory
suit.
Vol. 78 — No. 13 — 4/28/2007
IV.
THE ZOO TRUST IS NOT SUBJECT TO
THE TERMS OF THE ACT
¶8 The express terms of the Act, as well as its
stated intent, make clear that it is to apply only
to those entities which the State of Oklahoma
or a municipality created and controls.18 The
Trust is recognized by law as a separate legal
entity whose sole connection with Oklahoma
City is that the latter is the Trust’s beneficiary.
That status gives the City absolutely no de jure
control over the operations of the Trust. No de
facto City control of the Zoo operations was
ever suggested below and none is asserted
before this court.
¶9 The provisions of 11 O.S. Supp. 2004 §51202 (12) — which set out a city’s departments
— govern solely those municipal employers
whom the Act defines as “authorities, agencies
and boards created by such municipalities.” It
is argued by AFSCME that, regardless of the
fact that the term “public trust” is not used in
any part of the Act’s text, the Zoo Trust is
indeed subject to the terms of the Act because
it is an “authority” or “agency” “created by
such municipalities.” We disagree. It is crystalclear that the Trust is neither a municipal
authority nor was it created by the City.19 The
trial court clearly did not err in ruling that the
Trust is not subject to the terms of the Act.
A.
The Trust Was Not Created By Its
Beneficiary
¶10 The Trust was not created by the City but
by its trustors.20 The Oklahoma Zoological
Society clearly is the trustor in the documents
creating the trust at issue here and the City
merely its beneficiary. To hold the City is the
trustor as well as the beneficiary would confuse and distort the distinction between the
two. The City’s acquiescence in the creation of
the Trust does not legally make it the creator of
the Trust.21 The provisions of 60 O.S. Supp.
2004 § 176 neither state nor imply that public
trusts are to be viewed as created either by the
State or by a municipality.22
B.
The City Enjoys No De Jure Control Over
The Trust
¶11 Neither the trust document nor any
statutory authority confers upon the City the
right to control the Trust.23 The right to control
constitutes a sine qua non element of employ-
1061
ment status. Without its presence no employment relation may exist in contemplation of
law.24 The trust instrument itself vests exclusive control over the trust in its board of
trustees, not in the beneficiary City. The trust
document also vests in the trustee the sole
authority to hire and discharge Zoo employees
and to make and perform contracts of any
kind. Statutory law makes clear that the instrument creating a trust exclusively controls the
relationship between the beneficiary and
trustee25 and “… a public trust … shall be presumed for all purposes of Oklahoma law to
[e]xist as a legal entity separate and distinct
from the settlor and from the governmental
entity that is its beneficiary….”26 The necessary
element of de jure control over Trust’s
employees is simply absent from the City.
C.
The Trust Is Free From De Facto Control By
The City
¶12 The record is devoid of any facts to suggest the City exercises control over the Zoo
Trust’s employees. The trust instrument itself
does not confer any control upon the City.27
¶13 The Trust’s acceptance by the City confers on the latter no operational powers over
the Trust which could be exercised before the
Trust’s legal dissolution. The record does not
hence support an employment relationship
between the Zoo Trust’s employees and the
City. The latter neither possesses nor exercises de facto or de jure control over the Trust’s
employees.
¶14 This court is mindful that a public trust
may be declared to be “illusory”28 upon a judicial finding of a sham fabricated by one to circumvent one’s obligations under the Act. An
illusory trust might be declared subject to the
terms of the Act. Upon this record, the Trust
does not exhibit any features that would suggest it is merely an illusory entity.
V.
SUMMARY
¶15 The Act is clear in its purview — it
applies solely to entities that a municipality
created and controls. We are unwilling to
ignore all the time-tested legal principles in
order to make the Zoo Trust an integrated
appendage of the City’s municipal government. As an entity separate from the City’s
municipal government, neither the Zoo Trust
nor anyone in its service may be accorded the
1062
status of a City employee for purposes of the
Act.
¶16 The self-governed and self-supported
Zoo Trust is a separate legal entity that is
entirely free of both de jure and de facto control by the City’s municipal government. The
Zoo Trust is hence not subject to compliance
with the terms of the Oklahoma Municipal
Employee Collective Bargaining Act. The trial
court’s judgment, which declares the Zoo
Trust to be an autonomous public trust entity
and not a mere appendage of the City’s
municipal government structure, does not
offend the law’s standard of correctness. It is
hence affirmed.
¶17 LAVENDER, HARGRAVE, OPALA,
WATT, TAYLOR and COLBERT, JJ., CONCUR;
¶18 WINCHESTER, C.J. and KAUGER, J.,
CONCUR IN RESULT;
¶19 EDMONDSON, V.C.J., DISSENTS.
1. 11 O.S. Supp. 2004 § 51-200 et seq.; see also City of Enid v. Public
Employees Relations Bd., 2006 OK 16, 133 P.3d 281 (deciding the constitutionality of the Act).
2. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶8, 107 P.3d 595, 600(citing
Easley v. Cromartie, 532 U.S. 234, 260, 121 S.Ct. 1452, 1471, 149 L.Ed.2d
430 (2001)(Thomas, J., dissenting)).
3. City of Chandler v. State ex rel. Dept. of Human Services, 1992 OK
137, ¶9, 839 P.2d 1352, 1354 (citing the terms of what is now 12 O.S.
2001 §1654).
4. See Id.; Brown ex rel. Brown v. Oklahoma Secondary School Activities
Ass’n., 2005 OK 88, ¶11, 125 P.3d 1219, 1225.5. Star Fruits S.N.C. v. U.S.,
393 F.3d 1277, 1281 (Fed. Cir. 2005).
6. City of Chandler, supra note 3, at ¶10, at 1354.
7. Udall v. Udall, 1980 OK 99, ¶11, 613 P.2d 742, 745.
8. See generally Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about Statutes are to Be Construed, 3 Vand.
L.Rev. 395 (1950) (explaining the “thrust” and “parry” of the canons of
construction).
9. City of Chandler, supra note 3, at ¶ 10, at 1354 (citing Darnell v.
Chrysler Corp., 1984 OK 57, 687 P.2d 132).
10. Dodd v. U.S., 545 U.S. 353, 359, 125 S.Ct. 2478, 162 L.E.2d
343(2005) (internal citations and quotations omitted).
11. Cooper Industries, Inc. v. Aviall Services, Inc. 543 U.S. 157, 167, 125
S.Ct. 577, 160 L.E.2d 548 (2004) (citing United States v. Nordic Village,
Inc., 503 U.S. 30, 35-36, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)).
12. Bates v. U.S., 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.E.2d 215 (1997).
13. 62 Cases, More or Less, Each Containing Six Jars of Jam v. U.S., 340
U.S. 593, 596, 71 S.Ct. 515, 95 L.Ed. 566 (1951).
14. Murphy v. State Election Bd., 1950 OK 141, ¶11, 218 P.2d 917, 919;
See also Dierks v. Walsh, 1950 OK 138, ¶24, 218 P.2d 920, 925 (“It is not
within the province of the court to question the wisdom or the necessity of an Act of the Legislature.”)
15. See Waste Connections, Inc. v. Oklahoma Department of Environmental Quality, 2002 OK 94, ¶7, 61 P.3d 219, 223 (giving an overview of
relevant law).
16. This court has previously stated that:
There are several reasons for the rule of exhaustion of administrative remedies. These include the expertise of the agency in the
subject matter area and notions of judicial efficiency; … [the fulfillment of] legislative purpose in granting authority to an
agency by discouraging frequent deliberate flouting of administrative procedure; … protect[ing] agency autonomy by allowing
the agency in the first instance to apply its expertise and correct
its errors; … aid[ing] judicial review by allowing parties to
develop material facts in agency proceedings; … and
promot[ing] judicial economy by avoiding repetition of judicial
and administrative factfinding and perhaps the necessity for
judicial involvement.
Atkinson v. Halliburton Co., 1995 OK 104, ¶12, 905 P.2d 772, 77475(internal citations and quotations omitted).
Vol. 78 — No. 13 — 4/28/2007
17. Ledbetter v. Oklahoma Alcoholic Beverage Laws Enforcement Comm’n, 1988 OK 117, ¶12, 764 P.2d 172, 181; see Marley v. Cannon, 1980 OK
147, ¶¶16-21 ,618 P.2d 401, 406-407 (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938)) (holding
that neither the Oklahoma Securities Commission nor the Administrator of the Oklahoma Department of Securities had the statutory power
to issue cease and desist orders against a business entity deemed to be
in violation of the Oklahoma Securities Act, 71 O.S. Supp. 2004 § 1 et
seq.)
18. The Act is designed to afford state and municipal employees
the right to collective bargaining for employment benefits, which
implies that only employees of the state or municipality enjoy such
right under the Act. The Act clearly contemplates its application to
“entities created” by the state or municipality. Thus, a two-step analysis is called for to determine whether an entity is subject to the terms
of the Act: (1) whether the state or municipality has control over the
entity; and (2) whether the entity was created by the State or a municipality. Because the right to control is the sine qua non element of
employment status, see infra note 24, we hold that its existence is dispositive of the determination whether an entity is subject to the terms
of the Act.
19. AFSCME argues that under Oklahoma law the Trust is considered an “authority”. We disagree. The Trust exercises no functions for
the municipal government of the City. Nor is there any showing here
that the City has ever entrusted to the Trust the performance of any of
its own municipal government functions.
20. 60 O.S. 2001 §175.3(B) (“Trustor means the maker, creator,
donor, settlor, grantor, of a trust …”) (emphasis added).
21. See e.g. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 543, 107 S.Ct. 2971, 2984-2985, 97 L.Ed.2d 427
(1987) (“The fact that Congress granted [a corporation] a corporate
charter does not render [it] a Government agent.”)
22. But see 60 O.S. 2001 § 179, which has remained unchanged since
its inception and states that any trustee of a public trust “shall be
[deemed] an agency of the state and the regularly constituted authority of the beneficiary for the performance of the functions for which
the trust shall have been created.” Section 179 is intended only to
“absolve from liability the members of[public trusts] as individuals.”
McKosky v. Town of Talihina, 1977 OK CIV APP 27, ¶13, 581 P.2d 482,
485. Except for tort liability purposes, a public trust that has no government functions to perform is not considered a government agency.
23. See State v. Garrison, 1959 OK 260, ¶10, 348 P.2d 859, 862 (“[a
public] trust is a legal entity separate and apart from the State and the
political subdivisions of the State …”); see also 60 O.S. Supp. 2003 §
176.1(A)(2) (“a public trust … shall be presumed for all purposes of
Oklahoma law to … [e]xist as a legal entity separate and distinct from
the settlor and from the governmental entity that is its beneficiary…”)
(emphasis added).
24. See McGee v. Alexander, 2001 OK 78, ¶29, 37 P.3d 800, 807(citing
Garrison v. Bechtel Corp., 1995 OK 2, 889 P.2d 273) (“An essential element of an agency relationship is that the principal has some degree of
control over the conduct and activities of the agent”); Metcalf & Eddy,
Inc. v. Puerto Rico Aqueduct & Sewer Authority, 991 F.2d 935, 939-40 (1st
Cir. 1993) (whether the state exerts control over the agency is a key factor in determining whether an entity is an appendage of the State);
Brewer v. Bama Pie, Inc., 1964 OK 58, ¶7, 390 P.2d 500, 502-503(“The
decisive test … is the right to control the physical details of the work
… [and] may be established either by … formal contract or by conduct
of the parties …”); see also Haworth v. Central Nat. Bank of Oklahoma City,
1989 OK 20, ¶10, 769 P.2d 740, 743; Agee v. Gant, 1966 OK 31, ¶ 20, 412
P.2d 155, 160.
25. See 60 O.S. 2001 § 178(A) (“The instrument or will creating …
[a] trust … in all … respects … will be controlling.”)
26. 60 O.S. Supp. 2003 § 176.1(A)(2).
27. See San Francisco Arts & Athletics, Inc., supra note 21, at FN 27.
28. See generally Roberts v. South Oklahoma City Hosp. Trust, 1986 OK
52, 742 P.2d 1077 (declaring a public trust to be illusory and thus not a
political subdivision within the meaning of the Oklahoma Government Tort Claims Act). Factors to be considered are: (1) whether the
trust serves a public function; (2) whether there is a direct monetary
benefit to the State or municipality; (3) whether the trust is funded by
the State or municipality; and (4) whether the State or municipality is
consulted in the running of the trust or the trust is outside the parameters of State- or municipality-sponsored policy).
2007 OK 22
IN RE: APPLICATION OF THE
OKLAHOMA BAR ASSOCIATION TO
AMEND THE OKLAHOMA RULES OF
PROFESSIONAL CONDUCT AND TO
AMEND RULE 1.4 OF THE RULES
Vol. 78 — No. 13 — 4/28/2007
GOVERNING DISCIPLINARY
PROCEEDINGS
SCBD No. 5266. April 17, 2007
ORDER
¶1 Upon application by the Oklahoma Bar
Association, the Court approves the amendments to the Oklahoma Rules of Professional
Conduct as set forth in Exhibit A filed herewith
this Order.
¶2 The Court further approves the amendment of Rule 1.4 of the Rules Governing Disciplinary Proceedings as set forth in Exhibit B
filed herewith this Order.
¶3 This order and the amended rules shall be
released for official publication and shall be
available online from the Oklahoma Bar Association's website, www.okbar.org.
¶4 The current rules shall remain in effect
until January 1, 2008. The amendments to the
Oklahoma Rules of Professional Conduct and
the amendment to Rule 1.4 of the Rules Governing Disciplinary Proceedings shall be effective January 1, 2008.
COURT IN CONFERENCE THIS 9th DAY OF
APRIL, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
CONCUR: WINCHESTER, C.J., EDMONDSON, V.C.J., LAVENDER, HARGRAVE,
OPALA, KAUGER, TAYLOR, COLBERT, JJ.
CONCURS IN PART, DISSENTS IN PART:
WATT, J.
AMENDED OKLAHOMA RULES
GOVERNING DISCIPLINARY
PROCEEDINGS, TITLE 5, CHAPTER 1,
APPENDIX 1-A, RULE 1.4
CONTROVERSIES REGARDING FEES
EFFECTIVE JANUARY 1, 2008
Rules Governing Disciplinary Proceedings.
Chapter 1, App. 1-A
Rule 1. JURISDICTION OF THE COURT IN
THE DISCIPLINE OF LAWYERS AND THE
UNAUTHORIZED PRACTICE OF LAW
RULE 1.4. CONTROVERSIES REGARDING
FEES
1063
(a) All members of the Bar who are required
under the Oklahoma Rules of Professional
Conduct, Rule 1.15, to maintain a trust account
for the deposit of clients’ funds entrusted to
said attorney, shall do so and furnish evidence
thereof as hereinafter provided. The Executive
Director of the Oklahoma Bar Association shall
annually mail a card to each lawyer requesting
the name of the bank or banks in which the
lawyer carries any trust account, the name
under which the account is carried and the
account number. Provision will be made on the
card for a response by lawyers who do not
maintain a trust account and the reason for not
maintaining said account. Lawyers shall have
thirty days from the receipt of said inquiry to
respond. Information received by the Association as a result of such inquiry shall remain
confidential unless a grievance is filed against
a lawyer which, in the opinion of the Professional Responsibility Commission, may warrant disciplinary action in regard to the handling of said trust account. Failure of any
lawyer to respond giving the information
requested will be grounds for appropriate
discipline.
(b) Controversies as to the amount of fees
shall not be considered a basis for charges in a
disciplinary proceeding unless it is made to
appear that the amount demanded is
extortionate or fraudulent.
2007 OK 23
DUSTIN HEATH JARVIS, Petitioner, v. THE
HONORABLE JAMES R. WOLFE, Associate
District Judge of the District Court of
Choctaw County, Oklahoma, Respondent.
No. 104,376. April 16, 2007
ORDER
¶1 Original jurisdiction is assumed. Art. 7
§ 4, Okla.Const. After a hearing before the referee, the court finds that:
(1) The real parties in interest had initially demanded a jury trial. The pre-trial
conference order indicates that jury trial
was not waived;
(2) an order “governing pre-trial conference” required payment of the jury trial
fee on or before the date of the pre-trial
conference, otherwise “the case will be
stricken from the jury trial docket and set
for a non-jury trial;”
1064
(3) as the fee was not paid on time by
any party, the case was scheduled for a
bench trial;
(4) petitioner, who had not earlier
demanded a jury trial, immediately moved
for “reconsideration,” demanded a jury
trial, and tendered the required fee;
(5) the trial court directed the clerk to
return the check to petitioner’s counsel,
finding that the right to a jury trial had
been waived based on the failure to pay
the fee on or before the governing order’s
deadline;
(6) the real parties in interest opposed
the petitioner’s demand for jury trial and
the motion to reconsider, acceding to the
court’s finding of waiver.
¶2 The Court concludes and holds that:
(1) As the parties who initially
demanded a jury trial and indicated nothing to the contrary throughout the litigation until after the pretrial conference, and
then only by inaction, the real parties in
interest were legally presumed to stand as
the obligors for payment of the jury fee,
Colley v. Harbour, 2004 OK 90, ¶ 1, 104 P.3d
584;
(2) failure by the real parties in interest
to pay the fee in accordance with the order
setting a deadline for its payment, coupled
with petitioner’s failure timely to pay it, do
not amount to a waiver of the petitioner’s
constitutional right to a jury trial;
(3) the trial court was clearly in error
when it (a) imputed constructive notice to
the petitioner of the fee’s nonpayment by
the parties who had earlier demanded a
jury trial and (b) found that the petitioner
who had not paid the fee, thereby waived
his right to a trial by jury.
¶3 The law disfavors implied waivers of the
right to trial by jury based on local custom,
procedure, practice and rule.
¶4 Respondent, or any other judge assigned
to this cause, is hereby commanded to grant
the petitioner’s request for a jury trial in Cause
No. CJ-2005-249 on the docket of the District
Court, McCurtain County.
¶5 DONE BY THE ORDER OF THE
SUPREME COURT SITTING IN CONFERENCE THIS 16TH DAY OF APRIL, 2007.
Vol. 78 — No. 13 — 4/28/2007
/s/
James R. Winchester
CHIEF JUSTICE
¶6 All justices concur
2007 OK 24
DAVID EARL SHERO Plaintiff/
Appellant, v. GRAND SAVINGS BANK,
Defendant/Appellee.
No. 102,154. April 17, 2007
that because the Open Records Act is silent
regarding any aspect of the employment relationship, the Open Records Act does not contain a clear mandate of public policy and therefore, the Employer/Bank did not violate any
public policy when it terminated Employee’s
employment for his refusal to dismiss his
claims against a third party pursuant to the
Open Records Act. The trial court correctly dismissed Plaintiff/Appellant’s Petition in this
matter and we therefore affirm.
APPEAL FROM THE DISTRICT COURT
OF DELAWARE COUNTY HONORABLE
ROBERT G. HANEY, TRIAL JUDGE
FACTS AND PROCEDURAL HISTORY
¶0 This is a wrongful discharge action arising out of Defendant/Appellee, Grand Savings Bank’s (hereinafter “Bank”) termination
of employee, Plaintiff/Appellant, David
Shero’s (hereinafter “Employee”) employment
upon Employee’s refusal to dismiss his claims
against a third party pursuant to the Oklahoma Records Act, 51 O.S. 2001, §24A.1 et seq.
Employee brought this Burk tort action (named
for the case of its first pronouncement in Burk
v. K-Mart Corp., 1989 OK 22, 770 P.2d 24), alleging that his termination was wrongful in violation of the public policies of the State of Oklahoma. The Bank filed a Motion to Dismiss pursuant to 12 O.S. §2012(B)(6) on the basis that
Employee was an at-will employee at the Bank
and that this employment termination did not
fall within the public policy exception to the
employment at-will doctrine. The trial court
granted the Bank’s Motion to Dismiss.
Employee appealed. We granted Employee’s
Motion to Retain.
¶2 The facts giving rise to Employee’s termination are as follows: At some point during
Employee’s employment at the Bank, Employee became a party to litigation initiated by the
City of Grove, which was a customer of the
Bank. Employee filed an answer and counterclaim in that action, seeking attorney fees and
costs for defending the action in addition to a
declaratory judgment that certain documents
sought were public records subject to inspection, copying and/or mechanical reproduction
pursuant to the Open Records Act. Bank insisted that Employee abandon his counterclaim
against the City of Grove, and relayed that
Employee would be terminated if he persisted
with his counterclaim. Employee refused to
drop his counterclaim against the City of
Grove and he ultimately was forced to resign
and/or was terminated from his employment.
Employee asserts, and Bank does not dispute
the fact, that Employee ultimately prevailed in
his action against the City of Grove.1
JUDGMENT OF THE TRIAL COURT IS
AFFIRMED.
¶3 The Plaintiff/Appellant, Employee,
David Earl Shero, brought this action against
his former Employer, Grand Savings Bank, for
wrongful termination in violation of public
policy as set forth in the Open Records Act.
Employee points to no other source of alleged
applicable public policy in support of his arguments.2 Employee does not assert, and the
record is absent any evidence suggestive of a
finding, that he was employed pursuant to
contract for a definite term; therefore a reasonable inference from the record is that Employee was an at-will employee. Bank filed a
Motion to Dismiss and Brief in Support pursuant to 12 O.S. §2012 (B)(6) for the Petition’s
failure to state a claim upon which relief can be
granted. Employee filed his Response to the
motion with a brief in support, to which Bank
filed a Reply with a brief in support. The trial
court entered an Order granting Bank’s
Patrick J. Malloy III of Malloy Law Firm, P.C.,
Tulsa, Oklahoma, for Plaintiff/Appellant.
David E. Strecker and Yvette Braaks Hart of
Strecker & Associates, P.C., Tulsa, Oklahoma
for Defendant/Appellee.
Lavender, J.
¶1 The issue in the present cause is whether
termination of an at-will employee for his
refusal to dismiss his pending claims against a
third party (pursuant to the Open Records Act,
51 O.S. 2001, §24A.1 et seq.) constitutes a violation of Oklahoma’s public policy such that
would support a wrongful discharge action
against the employer under the limited public
policy exception to the employment-at-will
doctrine. We answer in the negative. We hold
Vol. 78 — No. 13 — 4/28/2007
I
1065
Motion to Dismiss. Employee appealed and
filed a Motion to Retain Appeal in Supreme
Court. We thereafter entered an Order granting
Employee’s Motion to Retain.
¶4 Bank filed a Motion for Leave to Submit
Appellate Briefs and Present Oral Arguments.3
We note generally in the context of an accelerated appeal, our review is confined to the
record actually presented to the trial court and
unless otherwise ordered, no briefs are
allowed on review. Okla. Sup.Ct. R. 1.36(g). In
consideration of the parties’ briefs previously
submitted below and the law cited therein, we
deem additional briefing and/or oral argument unnecessary in this case. Therefore, upon
due consideration, Bank’s Motion to Submit
Appellate Briefs and Present Oral Arguments
is denied.
II
The Bank did not violate public policy
when it terminated Employee’s employment
for Employee’s refusal to drop counterclaim
against Bank’s customer pursuant to the
Open Records Act, 51 O.S. 2001, §24A.1 et seq.
¶5 As a preliminary point, we note that our
review of a trial court’s dismissal for failure to
state a claim upon which relief can be granted
is de novo and involves consideration of the
legal sufficiency of plaintiff’s petition. Hayes v.
Eateries, Inc., 1995 OK 108, 905 P.2d 778, 780; See
12 O.S. §2021(B)(6). In reviewing such a dismissal, all allegations in the plaintiff’s petition
are taken as true and such a pleading must not
be dismissed unless the allegations reflect the
litigant can prove no set of facts which would
entitle him to relief. Id. Additionally, as this
case involves the determination of public policy, we note that a determination of public policy is a generally a question of law. Pearson v.
Hope Lumber & Supply Co., 1991 OK 112, 820
P.2d 443, 444.
¶6 It is reasonably inferred that Employee
was an at-will employee, since his lawsuit is
based solely on the public policy exception to
the at-will rule of employment. See Burk v. KMart Corp., 1989 OK 22, 770 P.2d 24. The longstanding employment at-will rule is generally
that an employment contract is of an indefinite
duration and may be terminated without cause
at any time without the employer incurring liability for breach of contract. Id. at 26. In Burk,
we created “the Burk tort” with our adoption
of the public policy exception to the at-will termination rule to apply “in a narrow class of
cases in which the discharge is contrary to a
1066
clear mandate of public policy as articulated
by constitutional, statutory or decisional law.”
Id. at 28 (emphasis added). At the time of our
recognition of this narrow tort, we further provided, “[i]n light of the vague meaning of the
term public policy we believe the public policy
exception must be tightly circumscribed.” Id. at
28-29. “An actionable tort claim under
Oklahoma law is where an employee is discharged for refusing to act in violation of an
established and well-defined public policy or
for performing an act consistent with a clear
and compelling public policy.” Id. at 29.
¶7 Plaintiff/Employee in this action alleges
wrongful termination “in violation of the public policies of the State of Oklahoma,” and cites
only one alleged source of the purported public policy, which is the Open Records Act. The
precise question before us is whether this Act
is a basis for an action in tort against an
employer for an at-will employee’s discharge.
The Open Records Act provides in pertinent
part as follows:
As the Oklahoma Constitution recognizes
and guarantees, all political power is
inherent in the people. Thus, it is the public
policy of the State of Oklahoma that the people
are vested with the inherent right to know and
be fully informed about their government. The
Oklahoma Open Records Act shall not create, directly or indirectly, any rights of privacy or any remedies for violation of any
rights of privacy. . . . The purpose of this
act is to ensure and facilitate the public’s
right of access to and review of government records so they may efficiently and
intelligently exercise their inherent political power.
51 O.S. 2001, §24A.2 (emphasis added).
¶8 The Open Records Act generally provides
for public inspection and copying of records,
which are defined as “created by, received by,
under the authority of, or coming into the custody, control or possession of public officials,
public bodies, or their representatives in connection with the transaction of public business,
the expenditure of public funds or the administering of public property.” Id. §24A.3. There
are express statutory criminal and civil penalties and remedies for violation of the Open
Records Act. Id. §24A.17. A public official in
willful violation of the act shall be guilty of a
misdemeanor and punished by $500 fine
and/or by imprisonment in the county jail for
one year. Id. Additionally,”[a]ny person denied
Vol. 78 — No. 13 — 4/28/2007
access to records of a public body or public
official” may file a civil suit for declarative
and/or injunctive relief and if successful, shall
be entitled to reasonable attorney fees. Id. The
Act is silent as to any right of action against a
private/ non-public body or official. The Act is
also silent as to any limitations on the actions
of an employer.
¶9 While the Open Records Act expressly
sets forth the public policy concerning the people’s right to know and be fully informed
about their government, it is silent as to any
public policy against conditioning continued
employment on the abandonment of claims
pursuant to the Act. It is the latter alleged public policy which must be deducible from the
Act in order for the Employee to state a claim
under the limited Burk tort public policy
exception to the employment at-will doctrine.
See Pearson v. Hope Lumber & Supply Co., 1991
OK 112, 820 P2d 443, 445.
¶10 The employee in Pearson filed a wrongful discharge action after his employer terminated employee for his refusal to submit to a
polygraph examination. The employee
claimed the Polygraph Examiners Act, 59 O.S.
§1468(2) as the source of the public policy to
support a Burk tort action. Employer in Pearson
argued, and we agreed, that the Polygraph
Examiners Act “d[id] not contain the requisite
‘clear mandate of public policy’ on which to
base a tort for wrongful discharge of an at-will
employee under the public policy exception
because the Act does not purport to touch any
aspect of the employment relationship . . . . The
Act does not purport to limit the actions of an
employer.” Pearson, 820 P.2d at 445. Upon finding no public policy against conditioning continued employment on participation in polygraph testing deducible from the Polygraph
Examiners Act, we concluded that the employer in Pearson did not violate any public policy
when it terminated employees’ employment
for his refusal to take the polygraph and
affirmed the trial court’s entry of summary
judgment in favor of the employer.
¶11 We find Pearson to be directly on point
here. Just as the statute in Pearson sought to be
the basis for the public policy tort did not purport to touch any aspect of the employment
relationship, the Open Records Act here is similarly silent as to any aspect of the employment
relationship. While we recognize the Open
Records Act speaks explicitly of public policy
— specifically concerning the people’s right to
knowledge and information about their govVol. 78 — No. 13 — 4/28/2007
ernment — in keeping with that particular
public policy, Employee here made the choice
to forego his employment with the Bank and
ultimately was victorious in his pursuit of his
rights and remedies afforded under the Open
Records Act in his action against the City of
Grove. Employee was not ordered to perform
an illegal act or denied an opportunity to exercise his legal rights such that might serve as
public policy grounds giving rise to liability
for an at-will employee’s discharge. See Hinson
v. Cameron, 742 P.2d 549, 552-53 (setting forth
public policy exceptions in other jurisdictions4
and determining that the hospital’s termination of its nurse employee for allegedly not following an order did not violate public policy).
Rather, the Bank’s decision to terminate
Employee upon Employee’s refusal to abandon claims against Bank’s customer was a private business decision. See Hayes v. Eateries,
Inc., 1995 OK 108, 905 P.2d 778, 786-88 (holding
an employee’s reporting and investigating of
criminal activity committed against the
employer by employee’s supervisor is not
imbued with the necessary clear and compelling public policy sufficient to state a Burk
tort claim).
¶12 In Hayes, while we openly criticized the
employer’s decision to terminate an employee
for uncovering co-employee embezzlement
and reporting it to the company hierarchy, and
specifically noted “we might even think it is
morally wrong,” we nevertheless concluded
“the Burk tort does not protect an employee
from his employer’s poor business judgment,
corporate foolishness or moral transgressions,
but only protects the employee from termination by the employer when such discharge has
violated a clear mandate of public policy.” Id.
at 788. Thus, even if we believe Bank’s decision
to terminate Employee in this case was contrary to good business decision-making or
even morally wrong, we find the termination
violates no clear mandate of public policy.
Although Employee in this case would have us
ignore Oklahoma Supreme Court precedent,
particularly our holding in Pearson,5 and determine the Open Records Act serves as a basis
for a Burk tort, to do so would be not only in
direct contradiction to our own precedent, but
would result in an expansion of the Burk tort
exception beyond the tightly circumscribed
framework within which it was designed. Pursuant to the rules enunciated in Burk and Pearson, we find that Bank did not violate public
policy when it terminated Employee’s employment for his refusal to abandon his counter-
1067
claim against the City of Grove. Therefore, the
trial court correctly granted Bank’s Motion to
Dismiss for failure to state a claim upon which
relief could be granted pursuant to 12 O.S.
§2012(B)(6).
III
SUMMARY
¶13 In sum, we hold the trial court correctly
dismissed Employee’s Petition for failure to
state a claim. Employer/Bank did not violate
public policy when it conditioned Employee’s
employment upon Employee’s abandonment
of his counterclaim pursuant to the Open
Records Act, 51 O.S. 2001, §24A.1, against the
Employer/Bank’s customer. In that it was
beyond any doubt Employee could prove no
set of facts which would have entitled him to
relief against Employer/Bank, the trial court
correctly dismissed pursuant to 12 O.S. 2001,
§2012(B)(6). Accordingly, we AFFIRM the trial
court’s Order Granting Defendant’s Motion to
Dismiss resulting in the dismissal of Employee’s Petition for failure to state a claim upon
which relief could be granted.
¶14 Upon Motion to Retain previously
granted,
JUDGMENT OF THE TRIAL COURT IS
AFFIRMED.
¶15 WINCHESTER, C.J., EDMONDSON,
V.C.J., LAVENDER, HARGRAVE, OPALA,
WATT, TAYLOR and COLBERT, JJ., concur.
¶16 KAUGER, J., concurring in result.
1. See Plaintiff’s Response to Defendant’s Motion to Dismiss and
Brief in Support at 2-3; City of Grove v. David Shero, CJ-2004-57.
2. Employee’s Response to Defendant’s Motion to Dismiss and
Brief in Support expressly provides “[t]he plaintiff in the instant case
is not attempting to rely on the “Open Courts” doctrine for purposes
of establishing a public policy.” Response Brief at p. 6. Admissions
made in briefs are regarded as supplementing the appellate record.
Deffenbaugh v. Hudson, 1990 OK 37, 791 P.2d 84, 86, n. 3 (citation omitted). Since Employee expressly refrains from raising any issue concerning the Open Courts doctrine as an alleged source of public policy to support a departure from the employment-at-will doctrine, we
decline to address it. Issues not briefed are waived. DLB Energy Corp.
v. Oklahoma Corp. Comm’n, 1991 OK 5, 805 P.2d 657, n. 6. See Reddell v.
Johnson, 1997 OK 86, ¶¶ 6-8, 942 P.2d 200, 202 (providing “[a]n appellate court is generally confined to the issues raised by the parties and
presented by the proof, pleadings, petition in error and briefs.”).
3. We entered an Order on June 5, 2005, deferring consideration of
this motion.
4. Generally, the public policy grounds recognized in other jurisdictions giving rise to wrongful discharge actions for at-will employees are as follows: (a). Refusing to participate in an illegal activity; (b).
Performing an important public obligation; (c). Exercising a legal right
or interest; (d). Exposing some wrongdoing by the employer; and (e).
Performing an act that public policy would encourage or refusing to
do something public policy would condemn, when the discharge is
coupled with a showing of bad faith, malice or retaliation. See Hinson
v. Cameron, 1987 OK 49, 742 P.2d 549, 552-53 (and cases cited therein).
Although Employee argues that his termination violates categories b.,
c. or e., we note that our determinations, notably that in Pearson v. Hope
Lumber & Supply Co., 1991 OK 112, 820 P.2d 443, demonstrate our
adherence to a more narrow construction of the public policy excep-
1068
tion than some of the other jurisdictions embracing these categories. In
Oklahoma, although we decide fact scenarios under the Burk umbrella on a case-by-case basis, we have held a public policy violation
occurs when the motivation for the discharge, i.e., for performing an
important public obligation such as termination for performing jury
duty, is also statutorily protected from employer retaliatory discharge. See
Hayes v. Eateries, Inc., 1995 OK 108, 905 P.2d 778, n. 7 (citing Brown v.
MFC Finance Co., 1992 OK CIV APP, 838 P.2d 524).
5. Employee argues Groce v. Foster, 1994 OK 88, 880 P.2d 902, is
analogous to this case. In Groce, we determined that a wrongful discharge action will lie against an employer who fires an employee for
the latter’s refusal to dismiss his common-law negligence action
against a third party, who was a customer of the employer, for redress
of on-the-job injuries. Specifically, we held “that a discharge in retaliation for the worker’s refusal to abandon his/her §44 lawsuit against a
third party to redress an on-the-job injury impermissibly interferes
with the legally protected recovery regime for those who suffer workconnected harm.” Id. at 905. In Groce, we carefully limited our holding
to the specific facts of that case, i.e., forcing an employee to choose
between keeping a job or pressing a statutorily protected §44 claim for
legal redress of an on-the job injury. This case is distinguishable from
Groce in that the Groce case was based upon express statutory public
policy articulated in a combination of sections the Workers’ Compensation Act, 85 O.S. 1991 §§5-7, 12, 44-47 and 84; Groce, 880 P.2d at 907.
Notably, these provisions provide “explicit legislative protection from
discharge for laying claim to compensation against an employee’s
own employer,” Id. at 906; 85 O.S. §§5-7, as well as express statutory
exception to the workers’ compensation exclusivity provisions permitting an injured worker to bring an action against another employer on the same job. Id. at n. 3; 85 O.S. §12. The instant case does not
implicate an employee’s statutory right to redress an on-the-job injury
that was occasioned by a third party and thus, does not violate the
public policy drawn from the provisions of the Workers’ Compensation Act. Unlike in Groce, no Burk tort claim is stated here, as discharging an employee for suing customers of the employer’s business under
the facts of this case does not interfere with the legally protected recovery regime for those who suffer work-related harm and thus violates
no public policy of this state.
2007 OK 25
IN THE MATTER OF THE ASSESSMENTS
FOR THE YEAR 2005 OF CERTAIN REAL
PROPERTY OWNED BY ASKINS
PROPERTIES, L.L.C.
ASKINS PROPERTIES, L.L.C.,
Petitioner/Appellant, v. OKLAHOMA
COUNTY ASSESSOR and the BOARD OF
EQUALIZATION OF OKLAHOMA
COUNTY, Defendants/Appellees.
No. 102,828. April 24, 2007
APPEAL FROM THE DISTRICT COURT
OF OKLAHOMA COUNTY, STATE OF
OKLAHOMA
HONORABLE NOMA D. GURICH, TRIAL
JUDGE
¶0 James Askins and Debra Askins (Askins)
are co-trustees and sole beneficiaries of the
James Askins and Debra Askins Revocable
Trust (Trust). The Trust held title to two pieces
of real property in Oklahoma County. In
December 2004 the Askins as co-trustees executed a quit claim deed conveying title to the
two properties to Petitioner/Appellant, Askins
Properties, L.L.C. (AP), a limited liability company in which the Askins are sole owners of
one hundred percent (100%) of the membership units. Defendant/Appellee, the Okla-
Vol. 78 — No. 13 — 4/28/2007
homa County Assessor increased the fair cash
value of each property more than five percent
(5%) for 2005 ad valorem tax purposes.
OKLA.CONST. art. 10, § 8B provides that “the
fair cash value of any parcel of locally assessed
real property shall not increase by more than
five percent (5%) in any taxable year.” However, § 8B provides an exception to this yearly
cap “[i]f title to the property is transferred,
changed, or conveyed to another person, the
property shall be assessed for that year based
on the fair cash value as set forth in
[OKLA.CONST. art. 10, § 8].” AP protested the
assessments with Defendant/Appellee, the
Oklahoma County Board of Equalization, but
the Board denied the protests. AP appealed to
the district court and both sides sought summary judgment. The trial court granted summary judgment for Defendants and against AP.
As part of its ruling the trial court held that 68
O.S. § 2802.1(A)(4)(g)(last amended in 2002)
violated the Oklahoma Constitution. As relevant here § 2802.1(A)(4)(g) basically provides
that a deed transferring property to a limited
liability company is not a transfer, conveyance
or change of title to another person within the
contemplation of the § 8B exception when the
transferors are the only owners of the limited
liability company. AP appealed to this Court.
We reverse the trial court judgment and
remand to the trial court with direction
to grant judgment to AP. We also hold
§ 2802.1(A)(4)(g) is constitutional to the extent
it is applied to the summary judgment record
presented in this appeal which shows that
although legal title was transferred to AP, the
equitable/beneficial ownership was in the
same two individuals both before and after the
transfer, the Askins.
TRIAL COURT JUDGMENT REVERSED
AND MATTER REMANDED WITH
DIRECTION TO THE TRIAL COURT TO
ENTER JUDGMENT IN FAVOR OF
PETITIONER/APPELLANT, ASKINS
PROPERTIES, L.L.C.
William K. Elias and Linda Jo Blan-Byford,
Elias, Books, Brown & Nelson, P.C., Oklahoma
City, Oklahoma for Petitioner/Appellant.
Gretchen Crawford, Assistant District Attorney, Oklahoma County District Attorney’s
Office, Oklahoma City, Oklahoma for Defendants/Appellees.
Sandra D. Rinehart, Senior Assistant Attorney
General, Office of the Oklahoma Attorney
General, Oklahoma City, Oklahoma for
Vol. 78 — No. 13 — 4/28/2007
Oklahoma Attorney General W. A. Drew
Edmondson.
LAVENDER, J.
¶1 We decide in this case whether the trial
court erred in denying summary judgment
to Petitioner/Appellant, Askins Properties,
L.L.C. (AP) and granting summary judgment
to Defendants/Appellees, the Oklahoma
County Assessor and the Oklahoma County
Board of Equalization (County or Assessor and
Board, respectively). The case also requires us
to decide if the trial court erred in ruling 68
O.S. § 2802.1(A)(4)(g) violative of the Oklahoma Constitution. We hold the trial court
erred, we reverse the trial court judgment to
the County and against AP, rule AP was
entitled to summary judgment and remand to
the trial court with direction to grant summary
judgment to AP. We also hold § 2802.1
(A)(4)(g)(last amended in 2002) is constitutional, at least to the extent it is applied to the summary judgment record presented in this case.
As to other factual situations that might fall
within the confines of § 2802.1(A)(4)(g), but
which are not presented by the factual circumstances existent in this case under this record,
questions concerning interpretation and constitutionality of that statutory provision will
not be considered and determined because
such other factual situations involve merely
abstract matters not within the scope of the justiciable controversy presented.
FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
¶2 James Askins and Debra Askins (Askins)
are co-trustees and sole beneficiaries of the
James Askins and Debra Askins Revocable
Trust (Trust). As pertinent here, the Trust held
title to two pieces of real property in Oklahoma County. In December 2004 the Askins, as
co-trustees of the Trust, signed a quit claim
deed conveying title to the properties to AP, a
limited liability company in which the Askins
are sole owners of one hundred percent (100%)
of the membership units.1
¶3 The Assessor increased the fair cash value
of each property over the 2004 value more than
five percent (5%) for 2005 ad valorem tax purposes. OKLA.CONST. art. 10, § 8B provides that
“the fair cash value of any parcel of locally
assessed real property shall not increase by
more than five percent (5%) in any taxable
year.” However, an exception found in § 8B to
the five percent (5%) yearly cap/limit is that
“[i]f title to the property is transferred,
1069
changed, or conveyed to another person, the
property shall be assessed for that year based
on the fair cash value as set forth in
[OKLA.CONST. art. 10, § 8].” AP filed protests
with the Board. The Board denied the protests
and sustained the values set by the Assessor.
As allowed by 68 O.S.2001, § 2880.1(A), AP
appealed the Board’s decision to the district
court.
¶4 In the trial court both AP and the County
sought summary judgment. The parties essentially agreed there was no substantial controversy as to any material fact and that the matter should be determined as a matter of law.
Our review of the record shows there is no
substantial controversy as to any material fact
and the matter may be determined as a matter
of law.
¶5 The parties also viewed the case as turning on whether or not a certain 2002 amendment to 68 O.S. § 2802.1(A)(4)(g) was constitutional. As relevant to this case § 2802.1(A)(4)(g)
provides, in effect, that a deed transferring
property to a limited liability company is not a
transfer, conveyance or change of title to
another person within the contemplation of
the above § 8B exception when the transferors
are the only owners of the limited liability
company. AP took the position the amendment
was constitutional. It also basically argued that
because the same two people both before and
after the transfer of the legal title held the equitable ownership of the property that the 5%
yearly fair cash value cap or limit still applied.
The County asserted the amendment was
unconstitutional, relying primarily on an opinion of the Oklahoma Attorney General (Attorney General) in 2003 OK AG 39, where it was
opined the 2002 amendment to § 2802.1
(A)(4)(g) was unconstitutional and the Legislature exceeded its authority to pass legislation
implementing the provisions of § 8B.
¶6 The trial court granted summary judgment to the County and against AP. AP
appealed the trial court’s judgment, an appeal
we previously retained for disposition.2 In a
July 2006 Order the Attorney General was notified of the pendency of the appeal and afforded an opportunity to file a brief on the question
of the constitutionality of § 2802.1(A)(4)(g).
The Attorney General submitted a brief in
August 2006 and consistent with 2003 OK AG
39 the brief argues the 2002 amended statute is
unconstitutional as exceeding the bounds of
that legislative authority necessary to implement the provisions of § 8B. The brief also in
1070
essence argues the amendment to §
2802.1(A)(4)(g) is not consistent with the intent
of the § 8B exception.3
¶7 We hold the trial court erred, reverse the
trial court judgment and remand to the trial
court with direction to enter judgment for AP.
We also hold § 2802.1(A)(4)(g) is constitutional,
at least to the extent it is applied to the summary judgment record presented in this case.
STANDARD OF REVIEW
¶8 Summary judgment is reviewed de novo,
i.e., an appellate court engages in a plenary,
independent and non-deferential re-examination of the trial court’s ruling. In re Estate of
MacFarline, 2000 OK 87, ¶ 3, 14 P.3d 551, 554555 (quoting Carmichael v. Beller, 1996 OK 48,
914 P.2d 1051, 1053 and citing Manley v. Brown,
1999 OK 79, ¶ 22 n. 30, 989 P.2d 448). Only
when the evidentiary materials submitted as a
whole demonstrate there are undisputed facts
on material issues supporting but a single
inference is summary judgment in favor of a
party appropriate. In the Matter of the Assessment of Real Property of Integris Realty Corp.,
2002 OK 85, ¶ 5, 58 P.3d 200, 202-203.4 The
determination of legal questions involving
statutory interpretation are also subject to de
novo appellate review. Fulsom v. Fulsom, 2003
OK 96, ¶ 2, 81 P.3d 652, 654 (citing Samman v.
Multiple Injury Trust Fund, 2001 OK 71, ¶ 8 and
n. 5, 33 P.3d 302, 305 and n. 5). Basic review
standards concerning constitutional interpretation will be set out as appropriate in the following part of this opinion.
ANALYSIS
¶9 Article 10, § 8B of the Oklahoma Constitution was adopted by the Oklahoma people at
an election held in November 1996. Section 8B
provides:
Despite any provision to the contrary,
the fair cash value of any parcel of locally
assessed real property shall not increase
by more than five percent (5%) in any taxable year. The provisions of this section
shall not apply in any year when title to
the property is transferred, changed, or
conveyed to another person or when
improvements have been made to the
property. If title to the property is transferred, changed, or conveyed to another
person, the property shall be assessed for
that year based on the fair cash value as
set forth in Section 8 of Article X of this
Constitution. If any improvements are
Vol. 78 — No. 13 — 4/28/2007
made to the property, the increased value
to the property as a result of the improvement shall be assessed for that year based
on the fair cash value as set forth in Section
8 of Article X of this Constitution. The provisions of this section shall be effective January 1, 1997, and thereafter for counties
which are in compliance with the applicable law or administrative regulations governing valuation of locally assessed real
property as of such date. For counties
which are not in compliance with such law
or regulations as of January 1, 1997, the
provisions of this section shall be effective
January 1 of the year following the date the
county is deemed to be in compliance with
such laws or regulations as provided by
law. The provisions of this section shall not
apply to any personal property which may
be taxed ad valorem or any property which
may be valued or assessed by the State
Board of Equalization.
4. “Transfers, change or conveyance of
title” means all types of transfers, changes
or conveyances of any interest, whether
legal or equitable. However, “transfers,
change or conveyance of title” shall not
include the following:
The Legislature shall enact any laws
necessary to implement the provisions of
this section.
(emphasis added). Title 68 O.S. § 2802.1
became law in 1997 (1997 Okla.Sess.Laws, Ch.
304, § 3) and was amended in 2002 (2002
Okla.Sess.Laws, Ch.476, § 3). The current version of the statute may be found at 68
O.S.Supp.2006, § 2802.1. The provision was
promulgated by the Legislature ostensibly in
an effort to implement the provisions of § 8B.
The 2002 amendment added language to §
2802.1(A)(4)(g), the subsection of the statute
that is the main focus of this case. Section
2802.1, with the 2002 added language bolded,
provides:
5
A. For purposes of implementing Section 8B of Article X of the Oklahoma Constitution:
1. “Any person” means any person or
entity, whether real or artificial, other than
the present owner;
2. “Any year when title to the property
is transferred, changed, or conveyed to
another person or when improvements
have been made to the property” means
the year next preceding the January 1
assessment date;
3. “Improvement” means a valuable
addition made to property amounting to
more than normal repairs, replacement,
maintenance or upkeep; and
Vol. 78 — No. 13 — 4/28/2007
a. deeds recorded prior to January 1,
1996,
b. deeds which secure a debt or other
obligation,
c. deeds which, without additional
consideration, confirm, correct,
modify or supplement a deed previously recorded,
d. deeds between husband and wife,
or parent and child, or any persons
related within the second degree of
consanguinity, without actual consideration therefor, or deeds
between any person and an express
revocable trust created by such person or such person’s spouse,
e. deeds of release of property which is
security for a debt or other obligation,
f. deeds of partition, unless, for consideration, some of the parties take
shares greater in value than their
undivided interests,
g. deeds made pursuant to mergers of
partnerships, limited liability companies or corporations, or deeds
pursuant to which property is
transferred from a person to a partnership, limited liability company
or corporation of which the transferor or the transferor’s spouse,
parent, child, or other person related within the second degree of consanguinity to the transferor, or trust
for primary benefit of such persons, are the only owners of the
partnership, limited liability company or corporation,
h. deeds made by a subsidiary corporation to its parent corporation for
no consideration other than the cancellation or surrender of the subsidiary’s stock, or
i. any deed executed pursuant to a
foreclosure proceeding in which the
grantee is the holder of a mortgage
on the property being foreclosed, or
1071
any deed executed pursuant to a
power of sale in which the grantee is
the party exercising such power of
sale or any deed executed in favor of
the holder of a mortgage on the property in consideration for the release
of the borrower from liability on the
indebtedness secured by such mortgage except as to cash consideration
paid.
B. This section shall be applied effective from the date of the passage of Section
8B of Article X of the Oklahoma Constitution.
C. The Oklahoma Tax Commission
shall promulgate rules necessary to implement Section 8B of Article X of the Oklahoma Constitution and this section.
¶10 Initially, we must set forth what is and is
not properly before us for decision in this case
given the factual record existent. As it was stated in the Second Syllabus by the Court in In re
Mayes-Rogers Counties Conservancy District Formation, 1963 OK 206, 386 P.2d 150, 151, “[a]
question of law presented and argued on
appeal that is not shown to arise under the
facts and record will not be considered and
determined.” For us to opine on an issue not
within the confines of the factual situation presented would involve determining merely an
abstract question without any justiciable controversy being presently before the Court. See
State ex rel. Cartwright v. Dunbar, 1980 OK 15,
618 P.2d 900, 904.
¶11 Thus, we do not opine about any transfer other than the one before us. In other
words, one where two individuals as cotrustees and sole beneficiaries of a trust own
real property — and are thus at a minimum the
equitable/beneficial owners of the property —
transfer the property to a limited liability company in which the same two individuals are
the sole owners of one hundred percent (100%)
of the membership units of the limited liability
company.6 The instant case does not, however,
provide a vehicle to discuss or decide issues
concerning transfers from a person or persons
to a partnership, corporation or limited liability company that have as the owner(s) the
transferor’s spouse, parent, child, or other
person related within the second degree of
consanguinity to the transferor. Such factual
scenarios within the contemplation of
§ 2802.1(A)(4)(g) are not before us in this case,
it would not be appropriate for us to decide
1072
issues concerning same here and our decision
is limited to determining only the legal issue(s)
presented by the record before us.7 With this
understood we turn to the matter at hand.
¶12 In Fent v. Oklahoma Capitol Improvement
Authority, 1999 OK 64, 984 P.2d 200, the following was stated concerning the general review
standard when the constitutionality of a
statute is attacked:
In considering a statute’s constitutionality, courts are guided by well established
principles. A heavy burden is cast on those
challenging a legislative enactment to
show its unconstitutionality and every presumption is to be indulged in favor of the
constitutionality of a statute. If two possible interpretations of a statute are possible,
only one of which would render it unconstitutional, a court is bound to give the
statute an interpretation that will render it
constitutional, unless constitutional infirmity is shown beyond a reasonable doubt.
A court is bound to accept an interpretation that avoids constitutional doubt as to
the legality of a legislative enactment.
It is also firmly recognized that it is not
the place of this Court, or any court, to concern itself with a statute’s propriety, desirability, wisdom, or its practicality as a
working proposition. .... Such questions
are plainly and definitely established by
our fundamental law as functions of the
legislative branch of government. Respect
for the integrity of our tripartite scheme for
distribution of governmental powers commands that the judiciary abstain from
intrusion into legislative policymaking. A
court’s function, when the constitutionality of a statute is put at issue, is limited to a
determination of the validity or invalidity
of the legislative provision and a court’s
function extends no farther in our system
of government.
Fent, 1999 OK 64, ¶¶ 3-4, 984 P.2d at 204
(citations omitted). The following is found in
Draper v. State, 1980 OK 117, 621 P.2d 1142, also
concerning interpretation of the Oklahoma
Constitution:
The Constitution, the bulwark to
which all statutes must yield, must be construed with reference to the fundamental
principals which support it. Effect must be
given to the intent of its framers and of the
people adopting it. This intent is to be
found in the instrument itself; and when
Vol. 78 — No. 13 — 4/28/2007
the text of a constitutional provision is not
ambiguous, the courts, in giving construction thereto, are not at liberty to search for
its meaning beyond the instrument.
Draper, 621 P.2d at 1145-1146 (footnote omitted). It was further stated in Draper on the subject of the interplay of legislative authority in
promulgating statutes and constitutional
validity:
[W]e do not look to the Constitution to
determine whether the Legislature is
authorized to do an act but rather to see
whether it is prohibited. If there is any
doubt as to the Legislature’s power to act
in any given situation, the doubt should be
resolved in favor of the validity of the
action taken by the Legislature. Restrictions and limitations upon legislative
power are to be construed strictly, and are
not to be extended to include matters not
covered or implied by the language used.
Draper, 621 P.2d at 1146 (footnote omitted).
¶13 The express and plain purpose of § 8B is
to put a five percent (5%) cap or limit on the
increase in the fair cash value of real property
in any year unless ownership of the property is
transferred to another person or improvements are made to the property (the latter
exception not being involved here). When only
legal title is transferred but the equitable ownership is in the same two persons both before
and after a deed is executed concerning the
property we do not believe the intent of the
constitutional provision had in mind the lifting
of the five percent (5%) fair cash value cap. The
Court on more than one occasion has considered tax related matters involving legal title
and equitable title being in different persons or
entities and we believe such case law points
the way to a proper resolution in the instant
case.
¶14 In Bowls v. Oklahoma City, 1909 OK 149,
104 P. 902, the holding is basically that the
holder of the equitable title to land is regarded
in law as the owner thereof and assessment of
either a general tax or special assessment
against the property in his name is valid. In the
Syllabus by the Court in Bowls is found the following: “[a] vendee of realty, in possession
under an executory contract of sale at the date
of the assessment, is the real owner for the purpose of taxation, and that, too, whether prior to
said sale the same was subject to taxation in
the hands of his vendor or not.” In State ex rel.
Cartwright v. Dunbar, 1980 OK 15, 618 P.2d 900,
Vol. 78 — No. 13 — 4/28/2007
it is essentially held that it is ownership of
property, rather than only legal title, that is the
determinative factor in deciding the applicability of the constitutional exemption from ad
valorem taxes for property of the state, county
or cities in relation to OKLA.CONST. art. 10, § 6.
Finally, in Imaging Services, Inc. v. Oklahoma Tax
Commission, Excise Tax Division, 1993 OK 164,
866 P.2d 1204, it was recognized that where
legal title only is transferred but there is no
transfer of the beneficial ownership, and no
right to possession was transferred, there was
no transfer of ownership as contemplated by
the aircraft excise tax statues.
¶15 As far as the instant record is concerned,
the same two people controlling the property
before the execution of the quit claim deed
control the property after that deed was
signed. In our view, the Legislature had the
authority to promulgate a statute — given the
lack of definition in § 8B as to what would constitute for purposes of the constitutional provision a transfer, conveyance or change of title
to another person — that would provide that
where a transfer is only of the legal title, but
the equitable/beneficial ownership remains in
the same two persons that the five percent (5%)
cap/limit increase on the fair cash value for ad
valorem tax purposes would remain intact.8
We also believe that a fair reading of § 8B itself
indicates an intent not to lift the cap in the situation shown by the instant record. In other
words, where equitable ownership of the property is solely in the hands of the same two persons both before and after the transfer and
only the bare legal title is transferred the five
percent (5%) cap still applies.9
¶16 It was stated in In re Initiative Petition No.
281, State Question No. 441, 1967 OK 230, 434
P.2d 941, 952 (citing Associated Industries of
Oklahoma v. Oklahoma Tax Commission, 1936 OK
156, 55 P.2d 79):
Whether a provision of a Constitution
be self-executing or not be self-executing,
supplemental legislation facilitating the
carrying into effect of the rights secured,
and safeguarding the rights against abuses, may be desirable; but such legislation
must be in harmony with the spirit of the
Constitution and must not curtail the
rights reserved or exceed the limitations
specified.
The bottom line questions in this case are of
course, does § 8B contemplate, and did the
Legislature have authority to recognize such
1073
contemplation in § 2802.1(A)(4)(g), the exclusion from what would be considered a transfer
of title to another person a conveyance where
only the legal title is changed, but equitable
ownership of the property is in the same two
individuals both before and after the transfer?
We believe the answer to both questions
is plainly yes. Thus, to the extent
§ 2802.1(A)(4)(g) protected the real properties
involved here and the Askins from an increase
of more than five percent (5%) in the fair cash
value for 2005 ad valorem tax purposes, the
statute is constitutional as it merely shields
those individuals intended to be protected by
the central purpose of § 8B. When applied to
the substance of the transfer involved here, i.e.,
legal title is conveyed but equitable title
remains in the exact same two individuals, we
believe no viable argument can be made that
§ 2802.1(A)(4)(g) exceeded legislative authority; instead, the provision implements the dictate(s) of § 8B and provides harmonizing legislation securing the right protected therein. To
that extent at a minimum § 2802.1(A)(4)(g) is a
constitutionally authorized enactment wholly
consistent with the purpose and intent of § 8B.
The trial court erred in ruling otherwise and in
granting summary judgment for the County
and against AP.
CONCLUSION
¶17 The trial court erred in granting summary judgment to the County and erred in ruling
§ 2802.1(A)(4)(g) violative of the Oklahoma
Constitution. Instead, the summary judgment
record shows that AP was entitled to summary
judgment. Further, we hold § 2802.1(A)(4)(g) is
constitutional to the extent it is applied to the
instant summary judgment record which
shows that although legal title was transferred
to AP, the equitable/beneficial title or ownership was in the same two individuals both
before and after the transfer, the Askins.
¶18 Accordingly, the trial court judgment is
REVERSED and this matter is REMANDED
WITH DIRECTION TO THE TRIAL COURT
TO GRANT JUDGMENT IN FAVOR OF
PETITIONER/APPELLANT, ASKINS PROPERTIES, L.L.C.
¶19 WINCHESTER, C.J., EDMONDSON,
V.C.J., LAVENDER, HARGRAVE, KAUGER,
WATT, TAYLOR and COLBERT, JJ., concur.
¶20 OPALA, J., concurring in judgment.
1. The Oklahoma Limited Liability Company Act (OLLCA) is
found at 18 O.S.2001, § 2000 et seq., as amended. The OLLCA was
enacted in 1992 and it has been the subject of amendment since that
1074
time and since 2001. Under 18 O.S.Supp. 2006, § 2002 a limited liability company may be organized for the purpose of carrying on any lawful business, purpose or activity (for profit or not) with one exception,
to wit: it may not conduct business as a domestic insurer. A limited liability company may acquire, own and hold real property. 18 O.S.2001,
§ 2003(5). The following was stated in a 1993 Oklahoma Law Review
comment concerning limited liability companies:
Oklahoma has recently joined a number of other states by
enacting legislation which authorizes the formation of a limited
liability company (LLC) under state law. This relatively new
statutory business form is increasingly catching the attention of
many state legislatures. The most striking feature of this new
breed of business organization is that it has characteristics of
both a partnership and a corporation. When properly organized,
the LLC offers the pass-through taxation benefits of a partnership for federal income tax purposes combined with corporatelike limited liability for its members.
Limited Liability Company: Oklahoma’s Limited Liability Company Act:
Concerns, Considerations, and Conclusions, 46 Okla. L. Rev. 349
(1993)(footnotes omitted).
2. Title 68 O.S.2001, § 2880.1(C) allows a taxpayer to appeal a district court’s decision in this type of case to this Court. Section 2880.1(C)
is part of the Oklahoma Ad Valorem Tax Code, 68 O.S.2001, § 2801 et
seq., as amended.
3. In June 2006 John A. Henry Co., Ltd. filed an application to file
an amicus curiae brief in support of Petitioner/Appellant, Askins Properties, L.L.C. (AP). In November 2006 Deerfield Estates, LLC filed an
application to file an amicus curiae brief, also to support the position
advanced by AP as we read the application. The Defendants/
Appellees, the Oklahoma County Assessor and the Oklahoma County
Board of Equalization (County or Assessor and Board, respectively)
filed objections to each amicus curiae brief application. After reviewing
the applications and the objections we determine the two applications
should be and are denied.
4. As 12 O.S.Supp. 2006, Ch. 2, App., Rules for the District Courts
of Oklahoma, Rule 13(e) sets out, summary judgment is warranted
only when “there is no substantial controversy as to the material facts
and ... one of the parties is entitled to judgment as a matter of law[.]”
5. OKLA.CONST. art. 10, § 8(A)(2) provides that:
A. Except as otherwise provided in Article X of this Constitution, beginning January 1, 1997, all property which may be
taxed ad valorem shall be assessed for taxation as follows:
***
2. Real property shall not be assessed for ad valorem taxation
at a value less than eleven percent (11%) nor greater than thirteen and one-half percent (13.5%) of its fair cash value for the
highest and best use for which such property was actually used,
or was previously classified for use, during the calendar year
next preceding the first day of January on which the assessment
is made. The transfer of property without a change in its use
classification shall not require a reassessment based exclusively
upon the sale value of such property. In connection with the
foregoing, the Legislature shall be empowered to enact laws
defining classifications of use for the purpose of applying standards to facilitate uniform assessment procedures in this state[.]
6. We need not concern ourselves here with any issue as to the
validity of the James Askins and Debra Askins Revocable Trust (Trust)
based on an argument no valid Trust was created because of the doctrine of merger of legal and equitable interests in the real property
being in the same two people, i.e., in that James Askins and Debra Askins (the Askins) are both co-trustees and sole beneficiaries of the Trust.
An explanation of the doctrine of merger in regard to the creation of a
valid trust in Oklahoma is contained in 2 Okla. Prob. Law & Prac.
§ 32.4 (3rd ed. 1995). Whether the Askins were owners of both the legal
and equitable interests in the real properties prior to the conveyance
by quit claim deed to AP or merely the beneficial interest owners does
not impact our disposition of the question before us in this case. Any
documents creating the Trust are not contained in the record presented.
7. We also do not opine concerning whether it would have been
appropriate to lift the five percent (5%) yearly cap on the fair cash
value had others in addition to the Askins held some economic rights
in AP at the time of the December 2004 conveyance of the properties
involved in this case. There is no indication in the summary judgment
record that any other person or entity had any interest whatsoever in
AP at the time of the transfer. Title 18 O.S.Supp.2006, § 2033 (a part of
the OLLCA, supra note 1) specifies that a membership interest in a limited liability company may not be transferred unless allowed in an
operating agreement relating to the limited liability company. However, under § 2033 a member may assign, in whole or in part, the economic rights associated with a membership interest. The record before
us does not contain any operating agreement associated with AP. We
also note that we do not have before us in this case any issue concerning any potential future scenarios that might arise in relation to
Vol. 78 — No. 13 — 4/28/2007
changes in the membership of AP or future assignments of any economic rights therein.
Finally, we note that in In re Assessments for the Year 2003 of Certain
Properties Owned by Affordable Residential Communities 7, L.L.C. and
Affordable Residential Communities 8, L.L.C. (ARC), 2006 OK CIV APP
147, 150 P.3d 399, the Court of Civil Appeals, Division 2, held that 68
O.S. § 2802.1(A)(4)(g)(both before and after the 2002 legislative amendment) was constitutional. Basically, the transfers at issue in ARC were
conveyances of real property from two limited liability companies to
two other limited liability companies where all four of the limited liability companies were owned by a fifth limited liability company ( a
Delaware L.L.C.) that in turn was owned by a limited partnership
whose general partner was a corporation. ARC, 2006 OK CIV APP 147,
¶¶ 2-3, 150 P.3d at 401-402. In the process of its ruling the Court of
Civil Appeals at ¶¶ 26-30, 150 P.3d at 406-407, in addition to opining
as to other subsections in § 2802.1(A)(4), appears to hold constitutional the provisions of § 2802.1(A)(4)(g) concerning transfers from a person or persons to a partnership, corporation or limited liability company that have as the owner(s) the transferor’s spouse, parent, child,
or other person related within the second degree of consanguinity to
the transferor (the Court of Civil Appeals uses the phrase “close relative of the owner”), even though we find no indication in ARC that the
transfers involved were to limited liability companies owned by any
transferors’ spouse, parent, child or other person related within the
second degree of consanguinity to a transferor. In other words, ARC
appears to contain obiter dicta. Certiorari to this Court was not requested in ARC and we note that opinions of the Court of Civil Appeals are
not binding precedent unless approved for publication in the official
reporter by a majority of the Justices of this Court. 20 O.S.2001, § 30.5.
ARC has not been so approved.
8. When the terms or phrases of a constitutional provision are not
adequately defined therein there is nothing inappropriate by virtue of
the Legislature enacting laws defining those terms or phrases consistent with the purpose of the constitutional provision [see In re Initiative
Petition No. 281, State Question No. 441, 1967 OK 230, 434 P.2d 941, 952]
or as necessary to carry into effect the constitutional provision. See
Miller v. Oklahoma Alcoholic Beverage Laws Enforcement Commission, 1990
OK CIV APP. 74, 797 P.2d 1013, 1015-1016.
9. We realize that under 18 O.S.2001, § 2032 (a part of the OLLCA,
supra note 1) a membership interest in a limited liability company is to
be considered personal property and a member thereof is considered
not to have an interest in specific limited liability company property.
Obviously, this statute, at least at first blush and facially, seems inconsistent with a holding that the Askins remain the equitable owners of
the real properties after title was transferred to AP. However, as a practical matter, in that the Askins owned the entire membership interest
in AP at the time of the transfer and there is nothing in the record to
indicate that anyone else had any interest in AP or control therein at
the time of transfer, it seems the reality of the situation, despite § 2032,
is that at the time of transfer the Askins retained full control over the
real properties and, in fact, remained the equitable owners. Accordingly, we discern no act in excess of legislative authority by the Legislature recognizing the reality of the situation via 68 O.S.
§ 2802.1(A)(4)(g) and concluding that for the purposes of lifting the
yearly five percent (5%) cap/limit on the fair cash value for ad valorem tax purposes a transfer of title to a limited liability company in
such a situation will not be considered a transfer, conveyance or
change of title to another person within the meaning of OKLA.CONST.
art. 10, § 8B.
OPALA, J., concurring in the court’s judgment
but not in its pronouncement
¶1 I concur in today’s conclusion that the
fair market value of the two tracts in this litigation over their 2005 ad valorem tax assessment was improperly increased for the tax
year 2005 in excess of 5% of its earlier assessed
valuation.
¶2 For his excessive 2005 reassessment the
county assessor relies mainly on the individual
owners’ (James and Debra Askins’) December
2004 conveyance of the two tracts in question
from themselves to Askins Properties, a limited liability company. As authority for the 2005
increase the assessor invokes the text of Art. 10
§8B, Okla. Const., which makes the restriction
Vol. 78 — No. 13 — 4/28/2007
upon annual increases of the assessed fair
market value that stand limited to 5% inapplicable to “any year when title to the property is transferred, changed, or conveyed to
another person” (emphasis supplied).
¶3 Decisive of this appeal is our answer to
one simple question — that of whether the
owners’ 2004 conveyance of the two tracts to
their limited liability company is to be recognized as a legally sufficient transfer “to another
person” or merely as the grantors’ (James and
Debra Askins’) retention of their land title in a
somewhat altered form — i.e. as owners of the
LLC rather than as owners in their own name.
If the former is correct, the tracts were properly subject to an open-ended assessor’s
reassessment of the land’s 2005 fair market
value; if the latter is correct, the land’s fair market value could not be increased in excess of
5% of its then assessed value. No other question need be answered here to dispose of this
controversy.
¶4 The critical December 2004 conveyance
by James and Debra Askins did not change
one iota either the land’s real ownership status or the incidence of their ad valorem tax
liability. The legal consequences of the status
change leave the incidence of ownership unaffected. Moreover, James and Debra Askins’
legal capacity to once again revest in their own
names the title to the affected property remains
utterly unimpaired. The form is clearly different but the ownership’s substance remains
unaltered. Equity will elevate substance above
form and disregard the difference.1 Because the
critical transfer from James and Debra Askins,
as individual owners, to Askins Properties,
LLC (they own that limited liability company
in toto)2 cannot be considered in law to be
either the land’s divestiture3 or its alienation,4
the December 2004 conveyance may not be
regarded as one made to “another person”
within the meaning of the exception in Art. 10
§8B, Okla. Const.
¶5 I would hence confine today’s pronouncement to that single issue which must be
resolved in favor of the taxpayers. Whether the
applicable provisions of 68 O.S. Supp. 2002
§2802.1, subdiv. (A)(4)g do indeed constitute a
correct legislative exposition of the text of Art.
10 § 8B, Okla. Const., need not be settled today.
Fundamental-law jurisprudence of this
Nation uniformly teaches that courts will not
reach for decision, in advance of strict necessity, any tendered attack on a law’s constitu-
1075
tional orthodoxy.5 No necessity presses us
here.
1. Equity always attempts to reach the substance and to ascertain,
uphold and enforce rights and duties springing from the parties’ real
relations. Equity looks beyond the form in which a transaction was
clad and shapes its relief to carry out the parties’ true intention. Cobb
v. Whitney 1926 OK 920, 255 P. 577; Exchange Bank of Perry v. Nichols,
1945 OK 292, 164 P.2d 867; Sinclair Oil & Gas Company v. Bishop, 1967
OK 167, 441 P.2d 436, 448.
2. The total ownership of Askins Properties, LLC, by James and
Debra Askins is undisputed.
3. Divestiture is defined as “The loss or surrender of an asset or
interest.” BLACK’S LAW DICTIONARY, SEVENTH EDITION, 1999.
4. Alienation is defined as “conveyance or transfer of property to
another” and the reader is warned that “a transfer of real estate short
of a conveyance of the title is not an alienation of the estate.” BLACK’S
LAW DICTIONARY, SEVENTH EDITION, 1999.
5. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56
S.Ct. 466, 483, 80 L. Ed. 688 (1936) (Brandeis, J., concurring).
2007 OK 26
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. BRETT DEAN SANGER
Respondent.
No. SCBD-5235. April 23, 2007
ORDER
¶1 Upon consideration of (1) respondent's
affidavit, prepared in compliance with Rule
8.1, Rules Governing Disciplinary Proceedings
(RGDP), 5 O.S. 2001, Ch. 1, App. 1-A, by which
a request is made that he be allowed to relinquish his license to practice law (cum membership in the Oklahoma Bar Association [Bar])
and (2) complainant’s application for an order
approving resignation,
¶2 THE COURT FINDS AND HOLDS:
1. During the pendency of disciplinary
proceedings against him Brett Dean
Sanger [respondent] offered, on 18 October 2006, to surrender his license to practice law and to resign from Bar membership.
2. Respondent’s act of surrender and resignation was freely and voluntarily made
without coercion or duress. Respondent
is fully aware of the legal consequences
that will flow from his resignation.
3. Respondent is aware of pending investigations by the Bar’s general counsel into
grievances made against him. If proven,
these grievances would constitute violations of Rules 1.3, 1.4, 5.2, and 7.7, RGDP,
5 O.S. 2001, Ch. 1, App. 1-A; of Rules,
1.1, 1.3, 1.4, 1.5, 1.7, 1.8, 1.15, 3.2, 8.1,
8.1(b), 8.4(a)(b)(c), ORPC, 5 O.S. 2001,
Ch. 1. App. 3-A, as well as of his oath as
a licensed Oklahoma lawyer.
1076
4. The grievances contain these allegations:
Count 1
DC-06-177 Criminal charges were filed
against respondent in the District Court of
Dewey County in the following causes:
CF-2005-61: furnishing an alcoholic
beverage to a person under 21 years of
age;
CF-2005-62: driving while under the
influence of alcohol;
CM-2005-283: transporting a firearm
while under the influence of alcohol.
This conduct, if proved, violates Rules
8.4(a)and (b), ORPC, and Rule 1.3, RGDP.
Respondent submitted to the Office of
General Council (OGC) AA attendance
records which contain falsified signatures
of various AA Sponsors. These falsifications, if proved, violate Rules 8.1 and
8.4(c), ORPC, and Rules 1.3 and 5.2, RGDP.
Count 2
Respondent failed to complete a probate
matter for client Pamala Sampson. He
failed to account for estate assets and to
communicate with his client, and he failed
to provide a full and fair disclosure of all
relevant facts to the OGC. This conduct, if
proved, is in violation of Rules 1.1, 1.3, 1.4,
1.15, 3.2, 8.1(b), and 8.4(a), ORPC, and
Rules 1.3, and 1.4, RGDP.
Count 3
Respondent neglected and failed to complete representation of a client in a criminal
matter. A civil suit for the recovery of
unearned fees was filed against respondent and a default judgment was entered.
This conduct, if proved, is in violation of
Rules 1.3, 1.4, and 1.5, ORPC, and Rule 1.3,
RGDP. Respondent provided the OGC a
brief response to this grievance and
attached a copy of a motion to vacate filed
in the civil matter as his answer to these
allegations. Respondent’s failure to provide a full and fair disclosure of all relevant facts in the matter is, if proved, a violation of Rule 5.2, RGDP.
Count 4
Respondent was indefinitely suspended
from the practice of law before the Internal
Revenue Service (IRS) in January, 2006,
and failed to report this suspension to the
OGC. This conduct, if proved, violates
Rule 1.3, and 7.7, RGDP.
Vol. 78 — No. 13 — 4/28/2007
Count 5
Respondent had an inappropriate relationship with a client and engaged in business
transactions with this individual without
advising her to seek independent legal
advice and assistance. Respondent
instructed the client to lie under oath during a deposition, assisted her in the commission of insurance fraud, used the
client’s checking account for his personal
purposes and business practice to avoid
creditors, and forged the client’s name in a
real estate transaction. This conduct, if
proved, violates Rules 1.7, 1.8, 1.15, and
8.4(a)(b)(c), ORPC, and Rules 1.3 and 1.4,
RGDP.
5. Respondent waives any and all of his
rights to contest the allegations outlined
in his affidavit on file in this cause.
Respondent recognizes, understands and
agrees that he may not apply for reinstatement of his legal license (and of his membership in the Bar) before the expiration of
five (5) years from the effective date of this
order.
7. Respondent agrees to comply with Rule
9.1, RGDP, 5 O.S. 2001, Ch. 1, App. 1-A,
and acknowledges that his license to
practice law may be reinstated only
upon compliance with the conditions
and procedures prescribed by Rule 11,
RGDP, 5 O.S. 2001, Ch. 1, App. 1-A.
8. Respondent acknowledges that his
actions may result in claims against the
Client Security Fund and agrees to reimburse the Fund for any disbursements
made or to be made because of his
actions.
9. Costs of this proceeding have been
expressly waived by the complainant.
10. Respondent’s resignation during the
pendency of disciplinary proceedings
is in compliance with Rule 8.1, RGDP, 5
O.S. 2001, Ch. 1, App. 1-A.
11. Respondent’s name and address
appear on the official bar roster as: Brett
Dean Sanger, 803 Robert S. Kerr Ave.,
Oklahoma City, OK 73106.
¶3 THE COURT THEREFORE ORDERS
THAT the resignation of Brett Dean Sanger,
tendered during the pendency of disciplinary
proceedings, stands approved; the respondent’s name is stricken from the Roll of Attorneys and he may not apply for reinstatement
of his license to practice law (and of his membership in the Bar) before the lapse of five (5)
years from the date of this order; repayment to
the Client Security Fund for any money disbursed (or to be disbursed) because of respondent’s conduct shall be a condition of respondent’s reinstatement; respondent shall comply
with Rule 9.1, RGDP, 5 O.S. 2001, Ch. 1, App. 1A, and the complainant’s waiver of costs in
this cause stands approved.
¶4 DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 23rd DAY
OF APRIL, 2007.
CHIEF JUSTICE
¶5 All justices concur.
OBA Nominating Petitions
(See Article II and Article III of the OBA Bylaws)
BOARD OF GOVERNORS
SUPREME COURT JUDICIAL DISTRICT NINE
O. CHRISTOPHER MEYERS II, LAWTON
Petitions have been filed nominating O. Christopher Meyers II for election of the Board of
Governors representing Supreme Court Judicial District 9 of the Oklahoma Bar Association
for a three-year term beginning January 1, 2008.
A total of 33 signatures appear on the petitions.
County Bar Resolutions Endorsing Nominee: Comanche County
Vol. 78 — No. 13 — 4/28/2007
1077
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1078
Vol. 78 — No. 13 — 4/28/2007
Court of Criminal Appeals Opinions
2007 OK CR 11
STATE OF OKLAHOMA, Appellant, v.
GREG COSTELLO SAYERWINNIE,
Appellee.
No. S-2006-74. April 10, 2007
OPINION DENYING APPEAL
LEWIS, JUDGE:
¶1 Greg Costello Sayerwinnie was charged
in the District Court of Oklahoma County,
Case No. CF-2002-7035.1 At a Jackson v. Denno 2
hearing, the Honorable Virgil Black, District
Judge, ruled that Sayerwinnie’s confession
must be suppressed. The State announced its
intension to appeal pursuant to 22
O.S.Supp.2002, § 1053 (5). The trial court
stayed the district court proceedings. Section
1053 provides, in part, that the State may
appeal,
Upon a pretrial order, decision, or judgment suppressing or excluding evidence
where appellate review of the issue would
be in the best interests of justice. Priority
shall be given to such an appeal, and the
order staying the proceedings shall be
entered pending the outcome of the
appeal.
¶2 After thorough consideration of the entire
record before us on appeal, including the original record, transcripts, exhibits, and briefs, we
have determined that the State has not shown
that appellate review of this case would be in
the best interests of justice. We, therefore, deny
the appeal of the trial court’s suppression of
this evidence.
¶3 Our decision is based on the “best interests of justice” language found in the statute
which restricts the State from filing appeals
any time a tribunal suppresses evidence.
¶4 In State v. Goins, 2004 OK CR 5, ¶ 2, 84
P.3d 767, 768, this Court held that a State
appeal was proper under this statutory standard when evidence was suppressed, and the
State asserted that it could not proceed without the evidence. The restriction of appeals by
the State finds support from the United States
Supreme Court, when it reasoned that,
Vol. 78 — No. 13 — 4/28/2007
The need to restrict appeals by the prosecutor reflected a prudential concern that
individuals should be free from the harassment and vexation of unbounded litigation
by the sovereign.
Arizona v. Manypenny, 451 U.S. 232, 246, 101
S.Ct. 1657, 1666, 68 L.Ed.2d 58 (1981) [citations
omitted]. This concern also underlies the ban
against double jeopardy. Id. No appellate right
by the government exists, absent express legislative intent. Id. at 246, 1667; State v. Shepherd,
1992 OK CR 69, ¶ 9, 840 P.2d 644, 647 (The
State’s right to appeal is authorized by statute,
which cannot be enlarged by construction).
¶5 Other States use language restricting the
State’s right to bring interlocutory appeals of
the suppression of evidence. Kansas and Illinois restrict these types of appeals unless “the
pretrial order suppressing or excluding evidence places the State in a position where its
ability to prosecute the case is substantially
impaired.” State v. Newman, 680 P.2d 257, 262
(Kan. 1984); see also People v. Drum, 743 N.E.2d
44, 46 (Ill. 2000). Colorado, by statute, allows
this type of appeal when the appeal “is not
taken for the purposes of delay and the evidence is a substantial part of the proof of the
charge pending against the defendant.” See
Colo.Rev.Stat.Ann., § 16-12-102(2) (West Supp.
2002).
¶6 We find that the above language gives
assistance to our interpretation of the term
“best interests of justice” found in § 1053(5). To
give guidance to prosecutors in the future, we
define the phrase “best interests of justice” to
mean that the evidence suppressed forms a
substantial part of the proof of the pending
charge, and the State’s ability to prosecute the
case is substantially impaired or restricted
absent the suppressed or excluded evidence.
¶7 The State, in the present case, has made
no showing that it cannot proceed without the
suppressed evidence. Nor has the State made
any argument that this evidence comprises a
substantial portion of its case and that its ability to prosecute the case will be restricted, at
all. In fact, the State has made no argument
regarding the “best interest of justice” standard; therefore, we find that this appeal must
be denied.
1079
DECISION
¶8 We find that the State has not shown, and
the record does not reflect, that review of this
appeal is “in the best interests of justice.” The
State’s appeal in this matter is DENIED. This
case is REMANDED to the trial court for further proceedings consistent with this opinion.
ATTORNEYS IN DISTRICT COURT
AND ON APPEAL
C. Kent Bridge, Tamala Phillips, Assistant Public Defenders, Oklahoma County, 611 County
Office Building, Oklahoma City, OK 73102
Attorneys for Defendant,
C. Wesley Lane, II, District Attorney Lynne
McGuire, Sarah McAmis, Assistant District
Attorneys, 505 County Office Building
Oklahoma City, OK 73102, Attorneys for the
State.
OPINION BY: LEWIS, J.
LUMPKIN, P.J.: DISSENTS
C. JOHNSON, V.P.J.: CONCURS
CHAPEL, J.: CONCURS
A. JOHNSON, J.: CONCURS IN RESULTS
1. The parties state that Sayerwinnie is charged with first-degree
(child abuse) murder in violation of 21 O.S.2001, § 701.7(C), or alternatively child abuse, 10 O.S.2001, § 7115 ; however, the parties did not
make a copy of the Information a part of their designation of record.
2. 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
LUMPKIN, PRESIDING JUDGE: DISSENT
¶1 I must respectfully dissent to the Court’s
analysis and decision in this case. In applying
the statutory language, “review of the issue
would be in the best interest of justice”, the
focus of the Court should be on the correctness
of the trial court’s decision and not on the
quantum of the State’s evidence the suppressed statement represents. This Court has
no way of truly knowing how substantial the
suppressed evidence is to the State’s case.
However, we do have the ability to determine
as a matter of law, applying all the legal presumptions, whether the decision of the trial
judge is legally sustainable.
2007 OK CR 12
RICHARD EUGENE GLOSSIP, Appellant, v.
STATE OF OKLAHOMA, Appellee.
No. D 2005-310. April 13, 2007
OPINION
LEWIS, JUDGE
¶1 Appellant, Richard Eugene Glossip, was
charged with the First Degree (malice) Murder
1080
in violation of 21 O.S.Supp.1996, §701.7 (A), on
January 14, 1997, in Oklahoma County District
Court Case No. CF-97-244. The instant appeal
arises from a trial occurring in May and June
2004, before the Honorable Twyla Mason Gray,
District Judge.1 The State filed a Bill of Particulars and alleged, during sentencing, the existence of two aggravating circumstances: (1)
that the person committed the murder for
remuneration or the promise of remuneration
or employed another to commit the murder for
remuneration or the promise of remuneration;
and (2) the existence of the probability that the
defendant will commit criminal acts of violence that would constitute a continuing threat
to society. See 21 O.S.2001, §701.12 (3) and (7).
¶2 The jury found Glossip guilty of first
degree (malice) murder, found the existence of
the murder for remuneration aggravating circumstance, and set punishment at death.
Judge Gray formally sentenced Glossip in
accordance with the jury verdict on August 27,
2004.
I. FACTS
¶3 In January of 1997, Richard Glossip
worked as the manager of the Best Budget Inn
in Oklahoma City, and he lived on the premises with his girlfriend D-Anna Wood. Justin
Sneed, who admitted killing Barry Van Treese,
was hired by Glossip to do maintenance work
at the motel.
¶4 Barry Van Treese, the murder victim,
owned this Best Budget Inn and one in Tulsa.
He periodically drove from his home in Lawton, Oklahoma to both motels. The Van Treese
family had a series of tragedies during the last
six months of 1996, so Mr. Van Treese was only
able to make overnight visits to the motel four
times in that time span. His usual habit was to
visit the motel every two weeks to pickup the
receipts, inspect the motel, and make payroll.
¶5 The State presented testimony about the
physical condition, financial condition, and the
day to day operations of the motel. At the
beginning of 1997, Mr. Van Treese decided to
do an audit of both motels after it was determined that there were shortfalls. Before Mr.
Van Treese left for Oklahoma City, Donna Van
Treese, Barry’s wife, calculated Glossip’s net
pay at $429.33 for the period ending January
5th, 1997, because Glossip had $211.15 in
draws.2 On January 6, 1997, she and Mr. Van
Treese reviewed the books and discovered
$6,101.92 in shortages for the Oklahoma City
motel in 1996. Mrs. Van Treese testified her
Vol. 78 — No. 13 — 4/28/2007
husband intended to ask Glossip about the
shortages.
¶6 Sometime in December, Mr. Van Treese
told Billye Hooper, the day desk manager, that
he knew things needed to be taken care of, and
he would take care of them the first of January.
Hooper believed Van Treese was referring to
Glossip’s management of the motel.
¶7 Justin Sneed, by all accounts, had placed
himself in a position where he was totally
dependent on Glossip. Sneed started living at
the motel when he came to Oklahoma City
with a roofing crew from Texas. Sneed quit the
roofing crew and became a maintenance worker at the motel. He made no money for his
services, but Glossip provided him with a
room and food. Sneed admitted killing Mr. Van
Treese because Glossip offered him money to
do it. The events leading up to the killing
began with Van Treese’s arrival at the motel on
January 6.
¶8 Van Treese arrived at the Best Budget Inn
in Oklahoma City on January 6, 1997, around
5:30 p.m. Around 8:00 or 9:00 p.m., Van Treese
left Oklahoma City to go to the Tulsa Best Budget Inn to make payroll and collect deposits
and receipts. Hooper testified Van Treese was
not upset with Glossip and did not say anything to her about shortages before he left for
Tulsa. Van Treese did tell Hooper he planned
to stay for a week to help remodel rooms.
¶9 William Bender, the manager of the Tulsa
motel, testified that Mr. Van Treese was very
upset. He had never seen him that angry. Van
Treese inspected the daily report for the motel,
and he checked to see if the daily report
matched rooms actually occupied. He told
Bender that there were missing registration
cards, missing receipts and unregistered occupants at the Oklahoma City motel.
¶10 He told Bender that he told Glossip that
he had until Van Treese arrived back at Oklahoma City to come up with the missing
receipts. Then he was going to give Glossip
another week to come up with the missing registration cards and to get the receipts in order.
He also told Bender that if Glossip were fired
Bender would manage the Oklahoma City
motel. Van Treese left the Tulsa motel and
arrived back at the Oklahoma City motel at
about 2:00 a.m. on January 7.
¶11 Sneed, also known as Justin Taylor, testified that in exchange for maintenance work,
Glossip let him stay in one of the motel rooms.
Vol. 78 — No. 13 — 4/28/2007
Sneed said he only met Van Treese a few times,
and he saw him at the motel with Glossip on
the evening of January 6, 1997. Sneed testified
that around 3:00 a.m. on January 7, 1997, Glossip came to his room. Glossip was nervous and
jittery. Glossip wanted Sneed to kill Van Treese
and he promised him $10,000.00 for killing Van
Treese. Sneed testified that Glossip had asked
him to kill Van Treese several times in the past
and the amount of money kept getting bigger
and bigger.
¶12 Glossip suggested that Sneed take a
baseball bat, go into Van Treese’s room (room
number 102), and beat him to death while he
slept. Glossip said that if Van Treese inspected
the rooms in the morning, as he intended to
do, he would find that none of the work had
been done. Glossip told Sneed that both of
them would be out of a job.
¶13 Sneed went over to the Sinclair Station
next door and bought a soda and possibly a
snack. He then went back to his room and
retrieved the baseball bat. Sneed said he went
to Van Treese’s room and entered using a master key that Glossip had given him. Van Treese
woke up and Sneed hit him with the bat. Van
Treese pushed Sneed, and Sneed fell into the
chair and the bat hit and broke the window.
When Van Treese tried to get away, Sneed
threw him to the floor and hit him ten or fifteen times. Sneed also said that he pulled out a
knife and tried to stab Van Treese a couple of
times, but the knife would not penetrate Van
Treese. Sneed received a black eye in the fight
with Van Treese. He later told others that he
fell in the shower and hit his eye.
¶14 A long time resident of the motel, John
Beavers, was walking outside when heard
strange noises coming from room 102. He then
heard the glass breaking. Beavers believed
there was a fight going on in room 102.
¶15 After Sneed killed Van Treese he went to
the office and told Glossip he had killed Van
Treese. He also told him about the broken window. Sneed said that he and Glossip went to
room 102 to make sure Van Treese was dead.
Glossip took a $100 bill from Van Treese’s
wallet.
¶16 Glossip told Sneed to drive Van Treese’s
car to a nearby parking lot, and the money he
was looking for would be in an envelope
under the seat. Glossip also told him to pick up
the glass that had fallen on the sidewalk.
1081
¶17 Sneed retrieved the car keys from Van
Treese’s pants and drove Van Treese’s car to
the credit union parking lot. He found an envelope with about $4000.00 cash under the seat.
He came back and swept up the glass. He put
the broken glass in room 102, just inside the
door. He said that Glossip took the envelope
from him and divided the money with him. He
also testified that Glossip helped him put a
shower curtain over the window, and he
helped him cover Van Treese’s body. According to Sneed, Glossip told him, that if anyone
asked, two drunks got into a fight, broke the
glass, and we ran them off. Sneed testified that
Glossip told him to go buy a piece of Plexiglas
for the window, and some Muriatic acid, a
hacksaw, and some trash bags in order to dispose of Van Treese’s body.
¶18 D-Anna Wood testified that she and
Glossip were awakened at around 4:00 a.m. by
Sneed. She testified that Glossip got out of bed
and went to the front door. When he returned,
Glossip told her that it was Sneed reporting
that two drunks got into a fight and broke a
window. She testified that Glossip then
returned to bed.
¶19 Glossip told police during a second
interview, that Sneed told him that he killed
Van Treese. He denied ever going into room
102, except for assisting with repairing the
window. He said he never saw Van Treese’s
body in the room.
¶20 The next morning, Billye Hooper arrived
at work and was surprised to see that Glossip
was awake. She also noticed that Mr. Van
Treese’s car was gone. She asked Glossip about
the car, and Glossip told her that Mr. Van
Treese had left to get supplies for remodeling
rooms. A housekeeper testified that Glossip
told her to clean the upstairs rooms, and he
and Sneed would take care of the downstairs,
where room 102 was located.
¶21 Later that afternoon, employees found
Mr. Van Treese’s car in a credit union parking
lot near the motel, and a search for Van Treese
began. Glossip and D-Anna Wood were at
Wal-Mart shopping. They returned to the
motel, because Hooper paged them and told
them to come back. The police were contacted
sometime after Mr. Van Treese’s car was found.
¶22 Cliff Everhart, who worked security for
Mr. Van Treese in exchange for a 1% ownership, was already at the motel. He told Sneed
to check all of the rooms. Sneed indicated that
he did so. Everhart, Glossip and Wood drove
1082
around looking for Van Treese in nearby
dumpsters and fields.
¶23 Everhart and Oklahoma City Police Sgt.
Tim Brown began discussing Glossip’s conflicting statements, so they decided to check
room 102 on their own. At about 10:00 p.m.
they discovered Van Treese’s body in his room.
Sneed had already left the motel that afternoon, and he was not apprehended until a
week later. Glossip was taken into custody that
night, questioned and released. The next day,
Glossip began selling his possessions. He told
people he was leaving town. However, before
he could leave town, he was taken into custody
again for further questioning.
¶24 Subsequent searches revealed that Sneed
possessed approximately $1,700.00 in cash,
and that Glossip possessed approximately
$1,200.00. Glossip claimed this money came
from his paycheck and proceeds from the sale
of vending machines and his furniture.
II: VOIR DIRE ISSUES
¶25 Glossip claims, in proposition nine, that
the trial court committed errors during voir
dire. Glossip is not claiming that he was forced
to keep an unacceptable juror, but that the trial
court abused its discretion in removing some
jurors for cause. The first claim regards the
method the trial court used in determining
whether jurors had the ability to impose the
death penalty.
¶26 Glossip attacks the trial court’s use of the
question whether jurors could give “heartfelt
consideration to all three sentencing options.”
Glossip argues that this question is at odds
with the uniform question “can you consider
all three legal punishment options — death,
imprisonment for life without parole or
imprisonment for life — and impose the one
warranted by the law and evidence?” See
OUJI-CR 2d 1-5 (1996). Regardless of the language used, Glossip must show that the
alleged improper language affected his trial in
a negative way.
¶27 Glossip claims his trial was unfair
because this incorrect language caused two
jurors, who had reservations about the death
penalty, to be erroneously excused because
they expressed an inability to consider all three
punishment options equally. One of these
jurors stated, “I would not be able to give the
death penalty equal consideration as a
sentencing option.”
Vol. 78 — No. 13 — 4/28/2007
¶28 The trial court asked this juror, “So your
reservations about the death penalty are such
that regardless of the law or the facts or the evidence, you would not consider imposing a
penalty of death.” The juror, unequivocally
answered, “That’s correct.” She was then
removed for cause without objection.
¶29 The next juror Glossip mentions stated
that she wanted to do her “civic duty,” but was
having “a problem with the death penalty.”
The trial court also asked this juror, “do you
believe that your concerns about the death
penalty are such that regardless of the law and
the evidence, you would not be able to give
equal consideration to all three sentencing
options.” This juror, stated, “I do.” This juror
was removed for cause without objection from
trial counsel.
¶30 Glossip complains about the use of the
language “equal consideration” used by the
trial court, parroted by the first juror and
repeated by the trial court to the second juror.
Glossip claims that this Court has never
required “equal consideration” be given to all
three sentencing options. See Frederick v. State,
2001 OK CR 34, ¶¶52-53, 37 P.3d 908, 926-27.
¶31 However, despite the holding in Frederick, this Court has held, in Jones v. State, 2006
OK CR 17, ¶14, 134 P.3d 150, 155, that “A major
purpose of voir dire in a capital case is to reveal
whether jurors will consider all three punishment options equally. A juror who cannot
should be excused for cause.” See also Hanson v.
State, 2003 OK CR 12, 72 P.3d 40, 48 (cited in
Jones, supra).
¶32 The proper standard for determining
when prospective jurors may be excluded for
cause because of their views on capital punishment is whether their views would prevent, or
substantially impair, the performance of their
duties as jurors in accordance with the instructions and their oath. See Ledbetter v. State, 1997
OK CR 5, ¶4, 933 P.2d 880, 885; also see Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844,
852, 83 L.Ed.2d 841 (1985).
¶33 This standard does not require that a
prospective juror’s incompetence to serve be
established on the record with “unmistakable
clarity.” Wainwright, 469 U.S. at 424-25, 105
S.Ct. at 852. We must give great deference to
trial judges in matters regarding jury selection.
See Patton v. State, 1998 OK CR 66, ¶16, 973 P.2d
270, 281-82; Ledbetter, 933 P.2d at 885.
Vol. 78 — No. 13 — 4/28/2007
¶34 In the present case, because there was no
objection to the removal of these two jurors,
any error must rise to the level of plain error.
Here there is no such error. The first juror was
unequivocal in her statement that she could
not impose the death penalty. The second juror
expressed concerns about her ability to impose
the death penalty at a very early stage in the
voir dire process stating that she couldn’t
impose death. This juror asked for more time
to consider whether she would consider the
death penalty if the law and facts warranted
such a penalty. She vacillated back and forth
and finally stated that she could not consider
the death penalty equally. We find that based
on the entire voir dire, the trial court did not
abuse its discretion in removing these two
jurors.
¶35 In this proposition, Glossip also claims
that a person serving a deferred sentence was
improperly removed for cause. This juror
raised her hand and later approached the
bench when the trial court inquired whether
anyone had “ever been charged with or
accused of a crime.” She was not completely
honest with the trial court, until the trial court
indicated that it knew about this juror’s history of two different deferred sentences, one of
which she was currently serving. The trial
court expressed concern about the juror’s ability to be fair and impartial in a criminal case
when she, herself, had been prosecuted by the
State. This juror agreed that it bothered her,
and asked “what can I do about it?”
¶36 This juror agreed that she would be
better suited for a non-criminal case. Before
excusing her for cause, the trial court allowed
defense counsel to object. The trial court stated
that it had “a real problem with people who
are on a deferred sentence sitting as jurors.
They’ve got a lot at stake . . . .” Although the
trial court made a blanket statement about all
persons currently serving a deferred sentence,
the trial court believed this juror would be
biased because she was currently serving a
deferred sentence. The trial court, did not
abuse its discretion in finding that this juror
could not be fair and impartial and removing
her for cause.
III: FIRST STAGE ISSUES
¶37 In proposition one, Glossip claims that
the State presented insufficient evidence to
convict him of first degree murder. Glossip
claims that Justin Sneed’s testimony was not
sufficiently corroborated. Glossip also claims
1083
that the State’s evidence regarding motive was
flawed.
¶38 When the sufficiency of evidence is challenged on appeal, this Court will 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. See Easlick v. State,
2004 OK CR 21, ¶5, 90 P.3d 556, 559. This test is
appropriate here where there was both direct
evidence and circumstantial evidence supporting the conviction. See Spuehler v. State, 1985
OK CR 132, ¶7, 709 P.2d 202, 203.
¶39 For Glossip to be convicted as a principal in Van Treese’s murder, the State had to
establish that he either committed each element of first degree malice murder or that he
aided and abetted another in its commission.
21 O.S.2001, §172. Aiding and abetting requires
the State to show “the accused procured the
crime to be done, or aided, abetted, advised or
encouraged the commission of the crime.”
Spears v. State, 1995 OK CR 36, ¶16, 900 P.2d
431, 438. Direct evidence supporting Glossip’s
commission of the crime came from admitted
accomplice Justin Sneed.
¶40 There is no question that Justin Sneed
was an accomplice to the murder of Barry Van
Treese, and for Glosssip’s conviction to stand
Sneed’s testimony must be corroborated by
some other evidence tending to connect Glossip with the commission of the crime. Spears,
1995 OK CR 36, ¶27, 900 P.2d at 440; 22
O.S.2001, §742.3 Even entirely circumstantial
evidence may be sufficient to corroborate an
accomplice’s testimony. Pierce v. State, 1982 OK
CR 149, ¶6, 651 P.2d 707, 709; see also Wackerly
v. State, 2000 OK CR 15, ¶23, 12 P.3d 1, 11.
¶41 To be adequate, the corroborative evidence must tend in some degree to connect the
defendant to the commission of the offense
charged without the aid of the accomplice’s
testimony. Even slight evidence is sufficient for
corroboration, but it must do more than raise a
suspicion of guilt. Cullison v. State, 1988 OK CR
279, ¶9, 765 P.2d 1229, 1231.
¶42 If the accomplice’s testimony is corroborated as to one material fact by independent
evidence tending to connect the accused to the
commission of the crime, the jury may infer
that the accomplice speaks the truth as to all.
Fleming v. State, 1988 OK CR 163, ¶8, 760 P.2d
208, 210; Pierce, 1982 OK CR 149, ¶6, 651 P.2d at
709. However, corroborative evidence is not
1084
sufficient if it requires any of the accomplice’s
testimony to form the link between the defendant and the crime, or if it tends to connect the
defendant with the perpetrators and not the
crime. Frye v. State, 1980 OK CR 5, ¶31, 606 P.2d
599, 606-607.4 The jury was properly instructed, according to the law in effect at the time of
trial, on accomplice testimony and corroboration of the testimony.5
¶43 In this case, the State presented a compelling case which showed that Justin Sneed
placed himself in a position where he was
totally dependent on Glossip. Sneed testified
that it was Glossip’s idea that he kill Van
Treese. Sneed testified that Glossip promised
him large sums of cash if he would kill Barry
Van Treese. Sneed testified that, on the evening
before the murder, Glossip offered him $10,000
dollars if he would kill Van Treese when he
returned from Tulsa. After the murder, Glossip
told Sneed that the money he was looking for
was under the seat of Van Treese’s car. Sneed
took an envelope containing about $4,000.00
from Van Treese’s car. Glossip told Sneed that
he would split the money with him, and Sneed
complied. Later, the police recovered about
$1,200.00 from Glossip and about $1,700.00
from Sneed. The most compelling corroborative evidence, in a light most favorable to the
State, is the discovery of the money in Glossip’s possession. There was no evidence that
Sneed had independent knowledge of the
money under the seat of the car. Glossip’s
actions after the murder also shed light on his
guilt.
¶44 The State points out four other aspects of
Glossip’s involvement, other than the money,
which point to his guilt: motive, concealment
of the crime, intended flight, and, as alluded to
earlier, his control over Sneed.
¶45 Glossip claims that the State’s evidence
of motive was unsubstantiated and disputed.
However, the State presented sufficient evidence to show that Glossip feared that he was
going to be fired as manager, because the motel
accounts had shortages during the end of 1996.
Cliff Everhart told Mr. Van Treese that he
thought that Glossip was “pocketing a couple
hundred extra” every week during the quarter
of 1996. Billye Hooper shared her concerns
about the motel with Van Treese. Van Treese
told her that he knew he had to take care of
things. It was understood that Van Treese was
referring to Glossip’s management.
Vol. 78 — No. 13 — 4/28/2007
¶46 The condition of the motel, at the time of
Van Treese’s death, was deplorable. Only half
of the rooms were habitable. The entire motel
was absolutely filthy. Glossip was the person
responsible for the day to day operations of the
motel. He knew he would be blamed for the
motel’s condition.
¶47 The State concedes that motive alone is
not sufficient to corroborate an accomplice’s
testimony. See Reed v. State, 744 S.W.2d 112, 127
(Tex. Cr. App. 1988).6 However, evidence of
motive may be considered with other evidence
to connect the accused with the crime. Id. Glossip’s motive, along with evidence that he
actively concealed Van Treese’s body from discovery, as well as his plans to “move on,” connect him with the commission of this crime.
Evidence that a defendant attempted to conceal a crime and evidence of attempted flight
supports an inference of consciousness of guilt,
either of which can corroborate an accomplice’s testimony. See People v. Avila, 133 P.3d
1076, 1127 (Cal. 2006); also see Smith v. State, 263
S.E.2d 910, 911-12 (Ga. 1980) (evidence that a
party attempted to conceal his participation in
a crime is sufficient to corroborate the
testimony of an accomplice).
¶48 The State presented an enormous
amount of evidence that Glossip concealed
Van Treese’s body from investigators all day
long and he lied about the broken window. He
admitted knowing that Sneed killed Van
Treese in room 102. He knew about the broken
glass. However, he never told anyone that he
thought Sneed was involved in the murder,
until after he was taken into custody that
night, after Van Treese’s body was found. Glossip intentionally lied by telling people that Van
Treese had left early that morning to get supplies. In fact, Van Treese was killed hours
before Glossip claimed to have seen Van Treese
that morning. Glossip’s stories about when he
last saw Van Treese were inconsistent. He first
said that he last saw him at 7:00 a.m.; later he
said he saw him at 4:30 a.m. Finally, he said he
last saw him at 8:00 p.m. the night before Van
Treese’s death, and he denied making other
statements regarding the time he last saw Van
Treese.
¶49 Glossip also intentionally steered everyone away from room 102. He told Billye Hooper that Van Treese had left to get materials, and
that Van Treese stayed in room 108 the night
before. He told Jackie Williams, a housekeeper
at the motel, not to clean any downstairs
rooms (which included room 102). He said that
Vol. 78 — No. 13 — 4/28/2007
he and Sneed would clean the downstairs
rooms. He told a number of people that two
drunken cowboys broke the window, and he
tried to implicate a person who was observed
at the nearby Sinclair station as one of the cowboys.
¶50 He told Everhart that he would search
the rooms for Van Treese, and then he told
Sneed to search the rooms for Van Treese. No
other person searched the rooms until seventeen hours after the murder, when Van Treese’s
body was discovered.
¶51 The next day, Glossip began selling all of
his belongings, before he admitted that he
actively concealed Van Treese’s body. He told
Everhart that “he was going to be moving on.”
He failed to show up for an appointment with
investigators, so the police had to take him into
custody for a second interview where he
admitted that he actively concealed Van
Treese’s body. He said he lied about Sneed
telling him about killing Van Treese, not to protect Sneed, but because he felt like he “was
involved in it.”
¶52 Glossip argues that all of this evidence
merely proves, at best, that he was an accessory after the fact. Despite this claim, a defendant’s actions after a crime can prove him
guilty of the offense. Evidence showing a consciousness of guilt has been used many times.7
¶53 Here, all of the evidence taken together
amounts to sufficient evidence to, first, corroborate Sneed’s story about Glossip’s involvement in the murder, and, second, the evidence
sufficiently ties Glossip to the commission of
the offense, so that the conviction is supported.
¶54 In proposition two, Glossip claims that
the State presented irrelevant and highly prejudicial evidence during the first stage of trial.
He claims that the State attempted to elicit
sympathy for the victim and for Sneed. However, trial counsel failed to object to any of the
testimony Glossip now claims was improper.
Therefore, he has waived all but a review for
plain error. Coddington v. State, 2006 OK CR 34,
¶52, 142 P.3d 437, 451-52. Plain error is that
error which goes to the foundation of the case
or takes away a right which is essential to a
defendant’s case. Mitchell v. State, 2005 OK CR
15, ¶47, 120 P.3d 1196, 1209.
¶55 Glossip first argues that the testimony of
Donna Van Treese, the victim’s spouse was
irrelevant to the first stage of trial. He ties this
1085
testimony with the introduction of the “in-life”
photograph, which was met with an objection.
¶56 Donna Van Treese, during first stage,
described the victim as a fifty-four year old
man, who had quit smoking six years prior,
had gained weight, was balding, and had gray
hair. He grew a full white beard and when he
shaved it off; his daughter cried and begged
him to grow it back. The “in-life” photograph
shows Mr. Van Treese without the beard.
¶57 Mrs. Van Treese was allowed to testify
that the months prior to his death, a series of
tragedies had occurred which included the
death of her mother. After this death the family took a long trip in a motor home to several
States. During this trip Mr. Van Treese felt an
urgent need to get home. When they arrived
home, they learned that Mr. Van Treese’s mother was scheduled for heart by-pass surgery
that very morning. She did not survive the
surgery.
¶58 The purpose of this testimony was to
show why Mr. Van Treese was not involved in
the day to day operations of the motel in the
months preceding his death. It was meant to
show how the motel could slip into physical
and financial disrepair without his knowledge.
¶59 During the first stage, several witnesses
described Mr. Van Treese as a loving, kind, and
generous person who on many occasions
allowed people to stay at the motel when they
were down on their luck. This testimony was
coupled with evidence that Mr. Van Treese had
a temper and would explode with anger
towards employees. Although this testimony
may have been irrelevant to the first stage, it
did not rise to the level of plain error. This evidence did not deprive Glossip of a fair trial.
¶60 Evidence that Mr. Van Treese was a ham
radio operator was relevant to the identification of his vehicle, as the vehicle was found at
the credit union parking lot with an amateur
radio operators personalized license plate. The
evidence about his diabetes was relevant to
show why Mrs. Van Treese called people to initiate a search as soon as she heard about him
being missing, and to explain why the
discovery of his car was troublesome.
¶61 In this proposition, Glossip also claims
that the State introduced irrelevant evidence
he claims was intended to evoke sympathy for
Justin Sneed. The defense theory was that
Sneed killed Mr. Van Treese without any influence from Glossip. They presented this theory
1086
in opening statement by first describing Sneed
as a remorseless, confessed killer, and then,
throughout the opening, presented a story
showing how Sneed acted alone.
¶62 The State portrayed Sneed as a person
with low intellectual ability, and a child like
demeanor. They presented testimony about his
background, and his growing up in a single
parent home, having a child early in life, dropping out of school after the eighth grade, coming to Oklahoma City with a roofing crew, and
quitting that to work at the motel in exchange
for rent. This was all meant to show how he
placed himself in a position to be dependent
on Glossip. Although there was some lay opinion evidence regarding whether Sneed had the
personality that would allow him to kill Mr.
Van Treese on his own, this testimony comprised only a small portion of the State’s case.
This testimony did not rise to the level of plain
error.
¶63 Next, in this proposition, Glossip claims
that the State introduced irrelevant evidence
regarding the remedial measures taken after
Mr. Van Treese’s death to show the condition
of the motel. Glossip argues that this evidence
was an indictment on the way Mr. Van Treese
ran the motel, rather than relevant to show that
Glossip had a reason to kill Mr. Van Treese.
¶64 The evidence included testimony that
Mr. Van Treese’s brother Kenneth Van Treese
bought new towels and linens for the motel,
replaced forty mattresses, and disposed of broken furniture. It was brought out during this
testimony that Glossip never had the authority
to buy new linens and towels. There was plenty of evidence that the motel was not in good
repair when Mr. Van Treese died. Glossip
could have believed that he would be fired
because of the condition of the motel, whether
he was responsible for the condition or not.
The evidence was admissible and the jury
could give it whatever weight they thought
appropriate. There is no error here.
¶65 In proposition three, Glossip claims that
the State used demonstrative aids to overly
emphasize certain portions of witnesses’ testimony. He claims that the posters (1) placed
undue influence on selected testimony, (2)
were the equivalent of continuous closing
argument, and (3) violated the rule of sequestration. Glossip also claims that the trial court
erred in refusing to include the posters as part
of the trial record.
Vol. 78 — No. 13 — 4/28/2007
¶66 We will, first, address the trial court’s
exclusion of these demonstrative aids as part
of the record. Defense counsel requested that
these poster sized note sheets be preserved by
the trial court for appellate review, but the trial
court refused the request. Then defense counsel requested that they be allowed to photograph the exhibits for their own records, but
again the trial court refused. The trial court
insisted that everything that the prosecutor
wrote on the pads was in the record; however,
the analysis of the pages in the transcript
where notations were made tells a different
story. We are extremely troubled by the trial
court’s attitude toward defense counsel’s
attempt to preserve the demonstrative aides
for appellate review.8
¶67 While it is incumbent on the moving
party to make a sufficient record so that this
Court can determine the content and extent of
these documents, the trial court must allow
counsel to make sufficient proffer so that the
issues can be preserved. See Ross v. State, 1986
OK CR 49, ¶18, 717 P.2d 117, 122. This Court
will not assume error from a silent record.9
However, this was not a case where evidence
or testimony was not allowed to be introduced
at trial.
¶68 This is a case where demonstrative aids
were made by the prosecution, placed before
the jury and utilized extensively during trial
and closing argument. Even though these aids
were utilized extensively during trial, the trial
court rejected any attempt by defense counsel
to preserve the “demonstrative exhibits” for
future appellate review.
¶69 If a trial court is going to allow these
types of demonstrative aids during trial, the
trial court shall assume the responsibility of
insuring that these aids are made a part of the
record, as court’s exhibits, when asked. The
total recalcitrance of the trial court to allow a
record to be made creates error in itself.
¶70 Here, the only way to determine what
was on the posters, in toto, is to search the
record and note where it appears that the prosecutor was writing on the note pad. According
to the record cited, the prosecutor made notes
of significant testimony on a large flip chart
sized easel pad. This pad was left up for the
jury to view during trial over trial counsel’s
objection which was made after the second day
of testimony.
¶71 The record is not clear whether these
pads stayed up during the entire trial. Glossip
Vol. 78 — No. 13 — 4/28/2007
asserts that they stayed on display from witness to witness from the first day of testimony
to the last with no citation to the record. Glossip cannot say what was written on the poster
sized pad sheets. (Trial counsel apparently
informed appellate counsel that there were
twelve of these poster sized note sheets plastered around the courtroom at the conclusion
of the trial).
¶72 Glossip claims that the posters were
“taped up to various places in the courtroom
and remained in full view of the jury and all
subsequent witnesses throughout the trial.”
Glossip’s citations to the record do not support
this specific factual claim.
¶73 Glossip admits that he has found no
cases on point in Oklahoma, and only cites to a
Kentucky case that he cites as saying,
It is one thing to allow a party to make a
chart or summary or other demonstrative
aid for use while a witness is testifying. It
is quite another ‘to allow a particular segment of testimony to be advertised, billboard fashion,’ after that witness has completed his or her testimony.
Lanning v. Brown, 377 S.W.2d 590, 594 (Ky.
1964). The chart displayed in Lanning was a
poster sized chart noting the list of special
damages claimed by the party in a personal
injury case. The Court held that the display of
the chart was harmless, because the damages
were not in substantial dispute. The Kentucky
court noted a dearth of precedent on this point.
¶74 In Miller v. Mullin, 354 F.3d 1288, 1295
(10th Cir. 2004), the Court noted a risk of using
transparencies during closing argument. The
court noted that “[a]n inherent risk in the use
of pedagogical devices is that they may
‘unfairly emphasize part of the proponent’s
proof or create the impression that disputed
facts have been conclusively established or
that inferences have been directly proved.’” Id.,
citing United States v. Drougas, 748 F.2d 8, 25
(1st Cir.1984).
¶75 In viewing the entire record, we cannot
say that the posters affected the outcome of
this trial. Both sides utilized the poster tactic
during trial, although, the State seemed to utilize more posters than the defense. There is no
argument that the posters did not contain factual information, and they were utilized to
assist the jury in understanding the testimony,
considering the trial court’s instructions
1087
against note-taking. Any error in the utilization of these posters was harmless.
¶76 In proposition ten, Glossip claims that
the statute allowing an “in-life” photograph of
the homicide victim is unconstitutional on its
face and the photograph was inadmissible
because any relevance was substantially outweighed by the danger of harm.
¶77 Glossip’s claim challenges the constitutionality of the amended 12 O.S.Supp.2003,
§2403, arguing the admission of an “in-life”
photograph without regard to relevance or the
evidentiary balancing test violates due
process. Glossip maintains that the blanket
admissibility of such photographs unnecessarily risks exposing jurors to prejudicial information. This issue was thoroughly discussed in
Coddington v. State, 2006 OK CR 34, ¶¶53-57,
142 P.3d at 452-53. In Coddington this Court
upheld the first-stage admission of a single,
pre-mortem photograph of the victim.
¶78 The legislature has seen fit to make the
admission of a photograph of the victim while
alive relevant in a homicide case “to show the
general appearance and condition of the victim
while alive.” 21 O.S.Supp.2003, §2403.
We presume that a legislative act is constitutional; the party attacking the statute has
the burden of proving that it is not. . . . We
construe statutes, whenever reasonably
possible, to uphold their constitutionality. .
. . A statute is void only when it is so vague
that men of ordinary intelligence must necessarily guess at its meaning. . . .
Hogan v. State, 2006 OK CR 19, ¶63, 139 P.3d
907, 930 [citations omitted] (discussing this
same issue regarding admission of an “in life”
photograph during second stage).
¶79 Contrary to Glossip’s claim, §2403 only
allows the admission of one “appropriate”
photograph. 12 O.S.Supp.2003, §2403. We held,
in Hogan, that photographs which violate the
balancing test of §2403 would be inadmissible.
Hogan, 2006 OK CR 19, ¶64, 139 P.3d at 931; see
Coddington, 2006 OK CR 34, ¶56, 142 P.3d at
152-53. Here, the State offered, in the first
stage, an innocuous portrait of Van Treese,
taken during the September preceding his
death. The photograph was offered “to show
the general appearance and condition of the
victim while alive” in accordance with the
statute. Other than the fact that Barry Van
Treese had a beard at the time of his death, the
photograph depicted his appearance just
1088
before his death. The photograph met the
guidelines of the statute, and its probative
value was not substantially outweighed by the
danger of unfair prejudice.
¶80 The admission of this evidence, as with
all evidence, is reviewed under an abuse of
discretion standard. The introduction of evidence is left to the sound discretion of the trial
court; the decision will not be disturbed absent
an abuse of that discretion. Pickens v. State,
2001 OK CR 3, ¶21, 19 P.3d 866, 876. An abuse
of discretion is “a clearly erroneous conclusion
and judgment, one that is clearly against the
logic and effect of the facts presented.” C.L.F. v.
State, 1999 OK CR 12, ¶5, 989 P.2d 945, 946. The
trial court did not abuse its discretion in
admitting the photograph.
IV: PROSECUTORIAL MISCONDUCT
¶81 In proposition four, Glossip alleges several instances of what he calls prosecutorial
misconduct. We first note that no trial will be
reversed on the allegations of prosecutorial
misconduct unless the cumulative effect was
such to deprive the defendant of a fair trial.
Garrison, 2004 OK CR 35, ¶128, 103 P.3d at 612.
Much of the allegations here were not preserved at trial with contemporaneous objections, thus we review for plain error. We will
not find plain error unless the error is plain on
the record and the error goes to the foundation
of the case, or takes from a defendant a right
essential to his defense. Simpson, 1994 OK CR
40, ¶23, 876 P.2d at 698.
¶82 Glossip’s first series of claims attack the
prosecution’s argument as a misrepresentation
of facts and misleading the jury. He first claims
that the prosecutor committed misconduct
when arguing that the absence of Glossip’s fingerprints in room 102 amounted to evidence of
guilt. There was no objection to these comments, thus we review for plain error only.
¶83 Here the prosecutor was merely arguing
that, as manager of the motel and as a person
who was responsible for repairs in every room,
it was very suspicious that none of his fingerprints were found in the room. This was a fair
inference from the evidence. The prosecutor
was not arguing that Glossip selectively
removed fingerprints after the crime, but was
arguing that the absence of his fingerprints in
the room, even ones that might have been left
there under innocent circumstances was
unusual. There is no plain error here.
Vol. 78 — No. 13 — 4/28/2007
¶84 Glossip next argues that the prosecution’s argument that only Glossip, and not
Sneed, had a motive to kill Mr. Van Treese
amounted to misconduct. Again, defense
counsel did not object. The State was merely
arguing that Sneed had no reason to kill Mr.
Van Treese other than the offer of money from
Glossip. Again this is a fair inference from the
evidence. There is no plain error here.
¶85 Next, Glossip argues that the prosecutor
mislead the jury when arguing that the defense
of “accessory after the fact” was baseless,
because the State did not charge him with
accessory after the fact to murder. In fact, the
State did, initially charge Glossip with accessory to murder and Sneed with murder in separate Informations. The State then dismissed the
accessory Information and added Glossip as a
co-defendant with Sneed on the murder
Information.
¶86 The State argued that it did not charge
Glossip with accessory to murder, because he
was guilty of the “big boy offense of Murder in
the First Degree.” Actually, the State did not
pursue prosecution of Glossip for accessory,
because they alleged he was guilty of first
degree murder. The method of prosecution
and the filing of charges is discretionary with
the prosecution. Here the prosecutor is merely
arguing that Glossip is guilty of murder,
regardless of his defense that he only acted
after the fact in attempting to cover up the
crime. The argument, again, is properly based
on the evidence adduced at trial.
¶87 The prosecutor argued that the lesser
related offense instruction relating to accessory
to murder was only given because defense
counsel requested it. Glossip objected to this
argument and the trial court admonished the
prosecutor. Juries are to consider lesser related
offenses, only if they have a reasonable doubt
that a defendant has committed the greater
offense. OUJI-CR 2d 10-27 (1996); Graham v.
State, 2001 OK CR 18, ¶6, 27 P.3d 1026, 1027.
The jury was properly instructed on the
method of reviewing greater and lesser offenses. These instructions properly channeled the
jury’s decision making process and cured any
error.
¶88 Glossip next argues that the prosecution
attempted to elicit sympathy for the victim and
his family during first stage of trial through
evidence and argument. This argument relates
to proposition two where Glossip argues that
victim impact evidence was introduced
Vol. 78 — No. 13 — 4/28/2007
through the testimony of first stage witnesses.
Our resolution of proposition two also resolves
this issue.
¶89 Next, Glossip argues that the prosecution introduced false or misleading testimony.
This argument touches on the fact that the
Tulsa motel was in just as much financial trouble as the Oklahoma City motel. Glossip
argues that the prosecutor made an offer of
proof that Van Treese was going to fire the
Tulsa manager as well as Glossip, because of
the shortages in Tulsa. Mrs. Van Treese testified
that they were going to take care of the Oklahoma City motel first. However, the Tulsa
manager, Bender, testified that Mr. Van Treese
wanted to move him to the Oklahoma City
motel. Glossip claims that both of these
scenarios cannot be true, so the prosecution
presented false evidence.
¶90 The fact that the Van Treeses discussed
firing both managers was not in conflict with
the fact that they were going to fire Glossip
first, move Bender to the Oklahoma City motel
to take Glossip’s place while managers were
sought for both motels. This claim has no
merit.
¶91 Next, Glossip claims that the prosecutor
implied that additional evidence existed. During the re-direct examination of witness Kayla
Pursley, Glossip claims that the prosecutor
inferred that this jury would not hear everything she said to the police because she could
not remember what she told police. The prosecutor did not allow Pursley to refresh her
memory with the police report and tell the jury
what she told police. No objection was made to
this questioning at trial.
¶92 As indicated by the State, this questioning was to rebut the defense’s cross-examination where counsel brought up the fact that she
testified to things not in the police report
because she remembered these things after
talking to the police. The prosecutor was merely attempting to show that Pursley was testifying from her memory and not from the police
report. The fact that the jury was deprived of
this evidence due to a lack of memory was not
indicative of more evidence damaging to Glossip. This claim does not rise to the level of plain
error.
¶93 Glossip also claims misconduct occurred
during the penalty phase of trial. He first
claims that the prosecutor misstated the law
regarding the appropriate punishment by
arguing that death is appropriate because soci-
1089
ety, the Van Treese family, the Glossip family,
and the justice system is “worse off” because of
Richard Glossip. The State also argued that
Glossip was a “cold-blooded murderer” and
“cold-blooded murders in the State of Oklahoma we punish with death.” The prosecutor
went on to argue that “He chose the option of
murder in the face of other options and that
makes death the appropriate option.” There
were no objections to these arguments.
¶94 Glossip also cites to the prosecutor’s
argument inferring that no one would be here,
except for the actions of Richard Glossip,
including the statement, “you [the jury]
wouldn’t be here making this tough decision.”
Again there was no objection.
¶95 Glossip claims that the prosecutor
unfairly denigrated Glossip’s mitigating evidence by pointing out that while he is awaiting
trial he gets his niece to come visit him so he
can bring her to trial so she can testify. The
prosecutor also pointed out the fact that other
mitigation evidence was from a 23-year-old
detention officer. The prosecutor pointed out
the fact that Sneed was about that age and he
buddies up to this young kid so he can have a
witness to say he is not violent. There was no
objection to this argument.
¶96 Defense counsel did object during the
next citation of alleged misconduct. The prosecutor used the victim’s photographs as props,
placed them on defense table, and said “I don’t
have a problem with taking this blood and
putting it right over here. Because this is where
it goes.” Counsel’s objection was aimed at the
prosecutor “throwing things on our table.”
Defense counsel said the prosecutor should
give them to the jury. The objection was overruled. The objection was not based on the
argument but on where the prosecutor was
placing the photographs. Because he raises a
different argument here, we can review for
plain error only.
¶97 All of the alleged misconduct came during the State’s second closing, after defense
counsel stated that the State wants “Richard
Glossip’s blood to flow” (to which a State’s
objection was sustained). Defense counsel also
told the jury that this was a decision that they
would have to live with; the State would put
this case away and forget about it. Defense
counsel also argued that the State sees Richard
Glossip as a person with no social redeeming
value — ignoring the fact that he had a normal
1090
life, was a hard worker and supported his family.
¶98 It must be noted, that the State alleged
two aggravating circumstances: continuing
threat; and murder for remuneration. Most of
the argument, from both sides, was in an
attempt to show whether Glossip was a continuing threat to society. The continuing threat
aggravating circumstance requires a jury to
determine whether it is probable that a defendant will commit future criminal acts of violence that would constitute a continuing threat
to society.
¶99 All of the prosecutor’s arguments were
proper comments on the evidence in order to
show that, based on the circumstances of this
crime, Glossip was a continuing threat to society. Obviously, the jury did not accept the prosecutor’s argument, because they did not find
that Glossip was a continuing threat.
V: INEFFECTIVE ASSISTANCE OF
COUNSEL
¶100 In proposition five, Glossip claims that
he was denied effective assistance of counsel
during both stages of trial.10 In order to show
that counsel was ineffective, Glossip must
show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).11 In
Strickland, the Court went on to say that there
is a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional conduct, i.e., an appellant must overcome the presumption that, under the circumstances, counsel’s conduct constituted sound
trial strategy. Strickland, 466 U.S. at 689, 104
S.Ct. at 2065.
¶101 To establish prejudice, Glossip must
show that there is a “reasonable probability
that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine the confidence in
the outcome.” Strickland, 466 U.S. at 694, 104
S.Ct. at 2068.
¶102 In the context of a capital sentencing
proceeding, the relevant inquiry is “whether
there is a reasonable probability that, absent
the errors, the sentencer . . . would have concluded that the balance of aggravating and
mitigating circumstances did not warrant
death.” Strickland, 466 U.S. at 695, 104 S.Ct. at
2069.
Vol. 78 — No. 13 — 4/28/2007
¶103 He first claims that counsel was ineffective for failing to utilize Justin Sneed’s videotaped interview to impeach Sneed and Detective Bemo. Glossip points out that this Court,
in our Opinion reversing Glossip’s original
conviction, stated that “[t]rial counsel’s failure
to utilize important impeachment evidence
against Justin Sneed stands out as the most
glaring deficiency in counsel’s performance.”
Glossip, 29 P.3d at 601.
¶104 One would believe that if this Court
stated an attorney was ineffective (to the point
of requiring reversal) for failing to utilize one
piece of evidence to impeach witnesses, the
new attorneys on retrial would utilize the evidence. That is, unless counsel at the second
trial is either banking on his ineffectiveness
garnering his client another trial or he made a
strategic decision not to introduce the tape and
only question witnesses about the statements
on the tape. The third possibility is that the failure to utilize this one piece of evidence is not
the sole reason counsel was found to be ineffective during the first trial. This Court trusts
that the first reason is invalid. Counsel’s use of
the contents of the tape to cross-examine witnesses, without introducing the tape, was a
valid strategy. Furthermore, the failure to utilize the tape during the first trial was one of
many reasons why this Court found there was
ineffective assistance of trial counsel during
the first trial.12 Even though these two trials
encompass the same subject, similar strategic
decisions occurring during both trials, might
not result in the same conclusion by this
Court.13
¶105 The videotaped interview was not
introduced into evidence during this trial, thus
it is not a part of the record. Glossip has filed a
motion for an evidentiary hearing pursuant to
Rule 3.11, Rules of the Court of Criminal Appeals,
Title 22, Ch. 18, App. (2006), in order to supplement the record.
¶106 Glossip admits that trial counsel crossexamined both Sneed and Bemo regarding the
circumstances of the interview, statements
made during the interview and discrepancies
between current testimony and statements on
the tape. Counsel was not ineffective for utilizing this strategy.
¶107 Glossip next argues that trial counsel
failed to utilize readily available evidence
(other than the video tape mentioned above) to
cross-examine witnesses. Glossip clams that
counsel was ineffective for failing to utilize
Vol. 78 — No. 13 — 4/28/2007
financial records concerning the victim’s Tulsa
motel to show that the “over $6,000.00 shortage” at the Oklahoma City motel was not
unusual. Counsel did attempt to introduce this
evidence, but the trial court ruled it inadmissible. Counsel did not try to impeach witnesses
with the documents.
¶108 Part of the State’s theory was that Glossip wanted Van Treese killed so he could take
over the management of both motels: Oklahoma City and Tulsa. The State also presented
evidence that Glossip was going to be confronted about the $6,000.00 shortage. Furthermore, evidence was presented that Glossip did
not want Van Treese to discover the condition
of the motel.
¶109 The shortages at the Tulsa motel, while
relevant to show that the $6000.00 shortage
was not unusual, was not relevant to show that
Glossip intended to have Van Treese killed
because he feared termination. His fear was
based on the condition of the motel, the missing registration cards, and missing money at
the Oklahoma City motel.
¶110 Glossip next claims that counsel was
ineffective, because counsel failed to object to
improper character evidence introduced by the
State. This evidence concerned testimony
about the character of Justin Sneed as a follower who would not have killed the victim unless
someone put him up to it. When counsel did
object, an objection was overruled and the
State elicited testimony that Sneed “would
have probably done anything for Glossip. He
was that dependent on him.”
¶111 Several witnesses observed Sneed and
Glossip interact with each other. They testified
that Sneed had no outside income and he
appeared to be dependent on Glossip. This evidence was not character evidence. This was
proper evidence presented so the jury could
understand why Glossip was able to employ
Sneed to commit the murders.
¶112 Next, Glossip claims that counsel was
ineffective for failing to object to the evidence
complained about in proposition two. We
found above that this evidence did not rise to
the level of plain error; we further find that the
failure to object did not amount to ineffective
assistance, as this evidence did not affect the
outcome of the case.
¶113 Next, Glossip claims that counsel was
ineffective to object to instances of prosecutorial misconduct set forth in proposition four.
1091
Any misconduct that might have occurred did
not affect the outcome of this case, so there can
be no ineffective assistance of counsel.
VI: SECOND STAGE ISSUES
¶114 In proposition six, Glossip claims there
was insufficient evidence to support the sole
aggravating circumstance of murder for remuneration. Murder for remuneration, in this
case, requires only that Glossip employed
Sneed to commit the murder for payment or
the promise of payment. 21 O.S.2001, §701.12.
¶115 Here, Glossip claims that Sneed’s selfserving testimony was insufficient to support
this aggravating circumstance. Glossip claims
that the murder was only a method to steal the
money from Van Treese’s car.
¶116 The flaw in Glossip’s argument is that
no murder needed to occur for Sneed and
Glossip to retrieve the money from Van
Treese’s car. Because Glossip knew there
would be money under the seat, a simple burglary of the automobile would have resulted in
the fruits of their supposed desire. The fact is
that Glossip was not after money, he wanted
Van Treese dead and he was willing to pay
Sneed to do the dirty work. He knew that
Sneed would do it for the mere promise of a
large payoff. There was no evidence that Sneed
had any independent knowledge of this
money.
¶117 There is sufficient evidence that Glossip
promised to pay Sneed for killing Van Treese.
¶118 In proposition seven, Glossip claims
that the jury instructions defining the jury’s
role in determining punishment were flawed.
Glossip first argues that the jury should have
been instructed, as requested by trial counsel,
that the aggravating circumstances must outweigh the mitigating circumstances beyond a
reasonable doubt. He claims, relying on Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002), that the failure to give this
instruction resulted in a death sentence that is
unconstitutional and unreliable. This Court
has consistently rejected this argument, and
Glossip has presented no new argument which
would cause this Court to reconsider our previous decisions. See Mitchell v. State, 2006 OK
CR 20, ¶81, 136 P.3d 671, 704.
¶119 Glossip next argues that the trial court’s
instruction which defines mitigating evidence
as factors which “in fairness, sympathy, and
mercy, may extenuate or reduce the degree of
moral culpability or blame” impermissibly
1092
narrows the characterization of mitigation. He
claims this definition excludes evidence about
a defendant that may warrant a sentence less
than death, because the evidence may not
lessen his moral culpability or blame. The trial
court rejected trial counsel’s requested instructions.
¶120 The trial court gave the uniform
instructions on mitigating evidence, OUJI-CR
2d 4-78 and 4-79 (1996), as well as others,
which included a list of mitigating evidence
and additional instructions which allowed the
jury to consider other mitigating circumstances if found to exist. This Court has previously analyzed these instructions and determined that they are appropriate. Rojem v. State,
2006 OK CR 7, ¶57, 130 P.3d 287, 299. This
Court will not revisit the issue here.
¶121 In proposition eight, Glossip claims
that the State was allowed to introduce
improper victim impact evidence. Oklahoma’s
desire to allow victims of violent crimes some
type of influence in the sentencing of criminal
defendants has led to different statutes. 22
O.S.2001, §§984 and 984.1 allows the use of
“victim impact statements” and 21 O.S.2001,
§701.10 (C) allows the use of “victim impact
evidence.”
¶122 Title 21 O.S.2001, §701.10(C) pertains
only to capital sentencing proceedings. The
State may present “victim impact evidence”
about the victim and the impact of the murder
on the family of the victim. The clear language
of section 701.10(C) limits the type of victim
impact evidence allowable in a capital sentencing procedure. This section is not as encompassing as 22 O.S.2001, §§984 and 984.1. Section 984 reads in part:
“Victim impact statements” means information about the financial, emotional, psychological, and physical effects of a violent
crime on each victim and members of their
immediate family, or person designated by
the victim or by family members of the victim and includes information about the
victim, circumstances surrounding the
crime, the manner in which the crime was
perpetrated, and the victim’s opinion of a
recommended sentence;
Section 984.1 states that,
Each victim, or members of the immediate
family of each victim or person designated
by the victim or by family members of the
victim, may present a written victim
Vol. 78 — No. 13 — 4/28/2007
impact statement or appear personally at
the sentencing proceeding and present the
statements orally. Provided, however, if a
victim or any member of the immediate
family or person designated by the victim
or by family members of a victim wishes to
appear personally, such person shall have
the absolute right to do so.
22 O.S.2001, §984.1 (A). “Members of the
immediate family” means the spouse, a child
by birth or adoption, a stepchild, a parent, or a
sibling of each victim. 22 O.S.2001, §984.
¶123 This Court has stated that both “victim
impact statements” and “victim impact evidence” are admissible in a capital sentencing
procedure. This includes a victim’s rendition
of the “circumstances surrounding the crime,
the manner in which the crime was perpetrated, and the victim’s opinion of a recommended sentence.” See 22 O.S.2001, §984; Dodd, 2004
OK CR 31, ¶95, 100 P.3d at 1044.
¶124 However, evidence may be introduced
that “is so unduly prejudicial that it renders
the trial fundamentally unfair” thus implicating the Due Process Clause of the Fourteenth
Amendment. Lott, 2004 OK CR 27, ¶109, 98
P.3d at 346, quoting Payne v. Tennessee, 501 U.S.
808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720
(1991).
¶125 During the second stage the State presented two witnesses. These two witnesses, the
victim’s daughter and the victim’s widow, met
the definition of “immediate family members.”
These two witnesses read their own statements
and statements of other immediate family
members. Glossip now claims that this procedure violated our previous case law on victim
impact evidence. Glossip argues that the State
should have only been allowed to introduce
testimony of immediate family members or
present a representative to read all of the statements, not both. See Lott v. State, 2004 OK CR
27, ¶¶110-11, 98 P.3d 318, 347 (family members
may testify or they may designate a family representative to testify in their behalf). Intermingled in this proposition are comments that
Mrs. Van Treese’s statement was more akin to
a statement made by a family representative,
rather than a personal statement addressing
the impact of the death on her personally.
Glossip argues that either her statement
should have been admitted as a representative,
or the State should have presented the personal testimony of immediate family members,
not both.
Vol. 78 — No. 13 — 4/28/2007
¶126 The issue here is whether an immediate
family member can both testify on their own
behalf and represent other members of the
immediate family. In Lott, two members of the
immediate family testified — the victim’s son
and daughter. Another witness also testified —
the victim’s granddaughter who was a “representative.” She testified about the impact of the
death on the entire family (even though she
was not a member of the “immediate family”),
her father and her aunts and uncles. (Her
father and one of her aunts were the two witnesses who also presented victim impact evidence).
¶127 Glossip also cites Grant v. State, 2003
OK CR 2, ¶59, 58 P.3d 783, 797, judgment vacated on different grounds in Grant v. Oklahoma, 540
U.S. 801, 124 S.Ct. 162, 157 L.Ed.2d 12 (2003)14
where this Court held that it is error for one
person to read the statement of another. This
Court, in Grant stated,
In Ledbetter v. State, 1997 OK CR 5, ¶¶37,
933 P.2d 880, 893, we recognized the fact
that “a person designated by the victim or
by family members of the victim” may
present victim impact statements. However, we held that the legislature intended
that the “person chosen to present the victim impact statement” should use his
“own thoughts or observations to express
the impact of a death on survivors of the
victim.” Ledbetter, 1997 OK CR 5, ¶38, 933
P.2d at 893. In Ledbetter, our holding
allowed the chosen person to observe family members and to use those observations
in the statement; however, that person may
not receive aid in the composition of the
statement from outside sources. Ledbetter,
1997 OK CR 5, ¶39, 933 P.2d at 893.
¶128 Nevertheless, in Grant we held that the
error did not rise to the level of plain error as
the evidence was presented in a more sterile
manner than if each of the writers of the statements had taken the stand and read their own
statements.
¶129 The State cites Hooks v. State, 2001 OK
CR 1, ¶37, 19 P.3d 294, 313. In Hooks, this Court
held that a representative, who is not an immediate family member, may be the representative, and if they give testimony about the
impact of the murder on themselves, the testimony can be harmless where the testimony
makes up a small part of the victim impact evidence. This Court went on to say that a family
member can give victim impact testimony on
1093
behalf of several immediate family members,
as long as that testimony is otherwise admissible.
¶130 Trial counsel objected to victim impact
evidence in a pre-trial motion and hearing.
During the second stage, an in camera hearing
was held and the parties went through the
statements. Defense counsel made objections
to some of the language in some of the statements and the trial court redacted the statements. However, counsel specifically stated
that he had no objection to the two witnesses
reading the statements of the remaining
“immediate family members.” Therefore, any
claim regarding the method of victim impact
evidence presentation is waived, except that
error which is plain error.
¶131 We find that Glossip was not harmed
by the State’s utilization of two family members to read the statements of five others. This
Court will not second guess trial counsel’s
sound trial strategy. There is no plain error
here.
VII: MANDATORY SENTENCE REVIEW
¶132 We found above that there was sufficient evidence to support the finding of the
statutory aggravating circumstance of murder
for remuneration.
After reviewing the entire record in this case,
we find that the sentence of death was not
imposed because of any arbitrary factor, passion, or prejudice. Glossip presented mitigating evidence, which was summarized and listed in an instruction to the jury:
1. The defendant did not have any significant history of prior criminal activity;
2. The defendant is 41 years of age;
3. The defendant’s emotional and family
history;
4. The defendant, since his arrest on January 9, 1997, has been incarcerated and
has not posed a threat to other inmates
or detention staff;
8. After leaving school, the defendant had
continuous, gainful employment from
age 16 to his arrest on January 9, 1997;
9. The defendant could contribute to
prison society and be an assistance to
others;
10. Prior to his arrest, the defendant had no
history of aggression;
11. The defendant was not present when
Barry Van Treese was killed.
12. The defendant has no significant drug
or alcohol abuse history.
¶133 In addition, the trial court instructed,
that the jury could decide that other mitigating
circumstances exist and they could consider
them as well.
¶134 We can honestly say that the jury’s verdict was not born under the influence of passion, prejudice or any other arbitrary factor,
and the evidence supported the jury’s findings
of the aggravating circumstances. See 21
O.S.2001, §701.13. Glossip’s convictions and
his sentences should be affirmed. We find no
error warranting reversal of Glossip’s conviction or sentence of death for first-degree murder, therefore, the Judgment and Sentence of
the trial court is, hereby, AFFIRMED.
AN APPEAL FROM THE DISTRICT
COURT OF OKLAHOMA COUNTY
BEFORE THE HONORABLE TWYLA
MASON GRAY, DISTRICT JUDGE
RICHARD EUGENE GLOSSIP, Appellant,
was tried by jury for the crimes of Murder
in the First Degree in Case No. CF-97-244
in the District Court of Oklahoma County
before the Honorable Twyla Mason Gray,
District Judge. Glossip was sentenced to
death, and he perfected this appeal. Judgment and Sentence is AFFIRMED.
APPEARANCES AT TRIAL
6. The defendant has a family who love
him and value his life;
Silas R. Lyman, II
Wayne Woodyard
Capital Trial Division
Indigent Defense System
P.O. Box 926
Norman, OK 73070
7. Has limited education and did not graduate from high school. He has average
Connie Smothermon
Gary Ackley
5. The defendant is amenable to a prison
setting and will pose little risk in such a
structured setting;
1094
intelligence or above. He has received
his G.E.D.;
Vol. 78 — No. 13 — 4/28/2007
by requesting and conducting an in camera hearing to present the
evidence for the record or through an offer of proof of sufficient
specificity to provide this Court with what it needs in order to
review the claim of error.
10. Glossip has filed a motion for evidentiary hearing based on this
claim so that he might be able to supplement the record with certain
evidence. The evidence contained in the motion for new trial consists
of the video taped interview of Justin Sneed, a transcript of the interview, the financial records of the Best Budget Inns (Tulsa and Oklahoma City), and accompanying affidavits. This evidence does not contain sufficient information to show by clear and convincing evidence
there is a strong possibility trial counsel was ineffective for failing to
utilize this evidence. See Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2006).
11. The Strickland standard continues to be the correct test for
examining claims of ineffective assistance of counsel where counsel
fails to utilize mitigation evidence. Bell v. Cone, 535 U.S. 685, 122 S.Ct.
1843, 152 L.Ed.2d 914 (2002).
12. Trial counsel during the first trial was wholly unprepared for
trial, had not formulated any reasonable defense theory, and failed to
object to clearly inadmissible evidence. See Glossip, 2001 OK CR 21,
¶25, 29 P.3d at 603.
13. During the first trial, trial counsel indicated he would use the
tape to impeach Justin Sneed, but when the time came, “counsel failed
to utilize the video tape at all.” Glossip, 2001 OK CR 21, ¶¶16-17, 29
P.3d at 601. In this case, trial counsel questioned both Bemo and Sneed
about inconsistencies between prior statements and current testimony.
14. Opinion on remand, Grant v. State, 2004 OK CR 24, 95 P.3d 178,
cert. denied 543 U.S. 964, 125 S.Ct. 418, 160 L.Ed.2d 332 (2004).
Assistant District Attorneys
Oklahoma County
505 County Office Building
320 Robert S. Kerr Ave.
Oklahoma City, OK 73102
Attorneys for the State.
APPEARANCES ON APPEAL
Janet Chesley
Kathleen M. Smith
Capital Direct Appeals Division
P.O. Box 926
Norman, OK 73070
Attorneys for Appellant,
W. A. Drew Edmondson
Attorney General of Oklahoma
Seth B. Branham
Assistant Attorney General
313 Northeast 21st Street
Attorneys for Appellee.
LUMPKIN, PRESIDING JUDGE: CONCUR
IN RESULT
Opinion by: Lewis, J.
Lumpkin, P.J.; Concurs in Results: C. Johnson,
V.P.J.; Concurs: Chapel, J.; Dissents: A. Johnson, J.: Dissents.
1. In his first trial, Glossip was convicted and the jury found the
existence of two aggravating circumstances. The jury found (1) that
the killing was especially heinous, atrocious, and cruel; (2) that the
appellant would pose a “continuing threat” to society and recommended a penalty of death. On direct appeal, the convictions and sentences were reversed. See Glossip v. State, 2001 OK CR 21, 29 P.3d 597.
2. Glossip’s salary was $1,500.00 per month, which was divided
twice monthly. The net amount was after other usual deductions.
3. “A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the
offense or the circumstances thereof.” 22 O.S.2001, §742.
4. See also, Jones v. State, 2006 OK CR 5, ¶33, 128 P.3d 521, 537-38;
Pink v. State, 2004 OK CR 37, ¶16, 104 P.3d 584, 590-91.
5. We note that the jury was given uniform jury instruction OUJICR (2d) 9-32 (2000 Supp.). After this trial occurred, this Court, in Pink,
(supra footnote 4) amended OUJI-CR (2d) 9-32. Pink, 2004 OK CR 37,
¶23, 104 P.3d at 593. Glossip does not raise any issue regarding this
instruction. We find that the giving of the pre-Pink instruction did not
affect the outcome of this trial.
6. Also see Leal v. State, 782 S.W.2d 844, 852 (Tex. Cr. App. 1989); Ex
Parte Woodall, 730 So.2d 652, 660, fn. 2 (Ala. 1998); Goodin v. Commonwealth, 75 S.W.2d 567, 570 (Ky. App. 1934).
7. See Dodd v. State, 2004 OK CR 31, ¶¶33-34, 100 P.3d 1017, 1031
and cases cited therein (post crime suicide attempt, also mentioning
attempting to bribe or intimidate a witness and flight or concealing
oneself from authorities); Anderson v. State, 1999 OK CR 44, ¶11, 992
P.2d 409, 415 (attempting to influence a witness’s testimony, mentioning altering, concealing or removing evidence from a crime scene citing Camron v. State, 1992 OK CR 17, ¶22, 829 P.2d 47, 53).
8. Glossip has asked for an evidentiary hearing so that the record
may be supplemented with these demonstrative exhibits, if they
remain in existence; however, we find that the inclusion of the demonstrative exhibits would not affect our decision in this case.
9. Welch v. State, 1998 OK CR 54, ¶41, 968 P.2d 1231, 1245. See also
Hanson v. State, 2003 OK CR 12, 72 P.3d 40, 56 (Lumpkin, concurs in
results):
If the trial court denies testimony of a witness or admission of an
exhibit, it is the responsibility of the party offering the testimony
or evidence to ensure a sufficient record is made to allow this
Court to review the issue on appeal. This can be accomplished
Vol. 78 — No. 13 — 4/28/2007
¶1 I concur in the results reached by the
Court and most of the analysis. However, I do
disagree with the analysis on a couple of
points.
¶2 First, the Court errs by citing as authority
for the decision rendered cases from other
states that are not valid precedent for this
Court. The jurisprudence from this Court is
more than sufficient to sustain the analysis and
decision of the Court. Thus, that case law
should be cited and not cases from irrelevant
states.
¶3 Second, while I agree the trial court’s failure to preserve the demonstrative aids for the
record in this case was error, I cannot find error
in the use of them in this case. These demonstrative aids, i.e. poster sheets with contemporaneous listing of accurate statements by witnesses, were nothing more than group note
taking. And, this Court has pushed note taking
with a missionary zeal. While individual note
taking cannot be monitored for individual
accuracy, this group note taking was monitored by the court and the accuracy ensured.
The notes were not overly emphasized because
as demonstrative aides, they were not allowed
to be taken into the jury room.
CHAPEL, JUDGE, DISSENTING:
¶1 I dissent from today’s decision because I
disagree with the majority’s treatment of
Proposition III and the result reached on this
claim. I also write to note that although I concur in the conclusion reached on Proposition I,
1095
I believe the majority overstates the strength of
the accomplice corroboration evidence in this
case, by confusing the narrow analysis of this
question with Glossip’s overall sufficiency of
the evidence claim.
¶2 Regarding Proposition III, I find that the
trial court’s decision, over defense objection, to
allow the State to post summaries of witness
testimony throughout the courtroom and to
leave these demonstrative exhibits visible to
jurors and later witnesses, from the time they
were first crafted until the conclusion of the
first stage of Glossip’s trial, was an abuse of
discretion. I also find that the trial court’s
denial of defense counsel’s clear and reasonable request to allow these exhibits to be either
preserved intact or digitally photographed, for
review by this Court, was likewise an abuse of
discretion. The trial court’s actions in this
regard were totally unjustified and prejudiced
Glossip’s right to a fair trial and an informed
consideration of his claims on appeal.
¶3 Two things occurred before the presentation of any evidence at Glossip’s trial that seem
noteworthy in light of his current claim. First,
a jury panel venire member asked, during voir
dire, if jurors would be allowed to take notes.1
The trial court responded with a lengthy explanation of the pitfalls of note-taking, particularly for those who did not do it regularly, and
explained that witnesses would have to rely
upon their “collective memories.”2 Hence juror
note-taking was not permitted.3
¶4 The second noteworthy occurrence
involved the rule of sequestration of witnesses.
Glossip’s counsel properly invoked “the rule”
at the beginning of trial and also requested that
Kenneth Van Treese, the brother of the victim,
not be allowed to remain in the courtroom during the testimony of Donna Van Treese, the victim’s wife. The trial court recognized that the
rule had been invoked and even acceded to
counsel’s request regarding Kenneth Van
Treese, over State objection, out of “an abundance of caution.”4 Unfortunately, the trial
court’s recognition that note-taking can sometimes be distracting and create problems during a trial, as well as the court’s careful attention to respecting the rule of sequestration, did
not remain consistent throughout Glossip’s
trial.
¶5 During the testimony of the State’s first
witness, Donna Van Treese, the prosecutor got
out an easel and started writing on a large
paper pad placed upon it.5 Although the record
1096
does not establish exactly what was written,
the prosecutor’s comments indicate that she
recorded certain specific pieces of testimony
on the pad, such as the time Glossip told Mrs.
Van Treese that he had last seen her husband
and when this statement was made. Defense
counsel did not object.6
¶6 During Mrs. Van Treese’s testimony the
next day, the prosecutor again began writing
on the pad, summarizing certain bits of testimony.7 In particular, she recorded Mrs. Van
Treese’s testimony about Glossip telling her
that he had seen her husband on the morning
of January 7, 1997.8 Later that day, during the
testimony of Glossip’s live-in girlfriend, DAnna Wood, the prosecutor likewise recorded
what Glossip told her after Justin Sneed woke
them up during the “early morning hours” of
January 7, namely, that “two drunks broke a
window” and that Glossip told Sneed “to clean
it up.”9
¶7 At the end of the day, after the jury had
been dismissed, defense counsel objected to
the State being allowed to post, in the courtroom, the large pieces of paper containing the
State’s notes summarizing particular witness
testimony after the testifying witness had been
excused, because it placed unfair emphasis on
the selected testimony.10 The State responded
that it had a right to make demonstrative
exhibits and suggested that it was Glossip’s
own fault that the exhibits were necessary.11
The trial court agreed and overruled the objection. The court did not specifically address
defense counsel’s objection to the posting of
the exhibits or his “undue emphasis” complaint.12
¶8 During the testimony of Billye Hooper,
who was the day clerk at the Oklahoma City
Best Budget Inn, the prosecutor again began
taking notes on the large pad of paper about
numerous things Glossip said to her or in her
presence: asking her to pay the hotel cable bill
with her own money (so Van Treese would not
find out it had been disconnected), that
Van Treese got up early on the morning of January 7 and went to get breakfast and repair
materials, that Barry Van Treese had rented
Room 102 to a “couple of drunks,” who had
“busted out a window,” and not to put that
room on the housekeeping report, because
Glossip and Sneed were going to clean it up
themselves.13 When this testimony began the
prosecutor addressed the court saying, “Your
Honor, this may take me a minute, but I’m
going to try and write all this up here.” As the
Vol. 78 — No. 13 — 4/28/2007
witness testified, the prosecutor would repeatedly summarize and restate what had just been
said, in order to get the witness’s agreement to
the accuracy of the prosecutor’s written summary of this same testimony.14
¶9 During the testimony of the next witness,
William Bender, who had managed the Tulsa
Best Budget Inn, the prosecutor announced
that she was going to start writing down
things that Glossip had said to Bender on January 8, after the victim had been found and
Glossip had been interviewed. As Bender testified the prosecutor summarized his testimony
and got his assent to various quotations of
things Glossip had said, as she wrote them
down.15 In the middle of this note-taking
process, the court interrupted and called the
attorneys to the bench — apparently after the
prosecutor wrote down something about Glossip telling Bender that he didn’t kill the victim,
but that he knew who did — and suggested
that the prosecutor add a particular piece of
information to her notes, “in the interest of
fairness.”16 The prosecutor then apparently
recorded that Glossip said he did not tell the
police who killed Van Treese because Glossip
“was in fear for his life” and that Glossip
warned Bender that he should probably leave
even the Tulsa motel, because it was about to
be “brought down.”17
¶10 This same prosecutor continued taking
notes on the paper pad during the testimony of
Jacquelyn Williams,18 Kayla Pursley,19 and
Michael Pursley,20 as she questioned each one
of them. During Michael Pursley’s testimony,
as the prosecutor attempted to confirm the
accuracy of her notes — by repeating the testimony and asking Pursley to affirm what she
had written — defense counsel objected that
the prosecutor was “repeating and rehashing
testimony that’s already before the jury.” The
court overruled the objection without comment.
¶11 Officer Timothy Brown, who assisted in
the search for Barry Van Treese and who discovered his body in Room 102, was examined
by the other prosecutor. It is not clear whether
this prosecutor himself wrote any notes, but
after questioning Brown for approximately
twenty transcript pages, he asked the first
prosecutor to come up and take notes for him.
The transcript indicates that this first prosecutor then took notes, while the examining prosecutor continued to question Brown regarding
numerous statements made by Glossip and
Brown’s investigation of Van Treese’s disapVol. 78 — No. 13 — 4/28/2007
pearance. It is sometimes apparent in the
record that the note-taking prosecutor is
memorializing testimony — such as when the
examining prosecutor asks, “Can we get that,
Ms. Smothermon?” — but it is often impossible to tell how much or what exactly is being
written down.21
¶12 Clifford Everhart, who did security
work at the hotel and who participated in the
search for Mr. Van Treese and was present
when his body was discovered, was examined
by the “note-taking prosecutor.” The transcript
indicates some specific occasions during this
testimony that the prosecutor took notes summarizing what Glossip had said to Everhart
and when it was said.22 Once again, however, it
remains entirely unclear, upon even a careful
review of the transcript, whether this prosecutor wrote down other notes from Everhart’s
testimony, without verbally noting what she
was doing.
¶13 After all the first-stage evidence had
been presented and the jury had been excused,
Glossip’s counsel noted his earlier objections
“to what has been labeled as demonstrative
exhibits, which are basically the sheets of
paper that have certain writings on them and
have been taped to various places in the courtroom.”23 Defense counsel noted that he had
earlier requested that these exhibits be included as part of the original record and that the
trial court had asked for some authority on this
issue. Counsel then cited Anderson v. State,24 as
being one of a number of cases establishing the
defendant’s duty to ensure that an adequate
record is provided to the Court of Criminal
Appeals, for the determination of claims on
appeal. He added:
If these don’t go, then they will not really
have an idea of what our concern was in
the record. If it’s too bulky to do that, we
are willing to take some digital photographs of each — first of all, as these things
appear in the courtroom and of each of
these items to submit if that’s an aid to the
court reporter or to the Court or the Court
of Criminal Appeals. But we do renew that
request at this time.
¶14 The note-taking prosecutor responded
that the record was already clear regarding
“what these demonstrative aids entail,”
because she had “made sure that I put into the
record what was being written.” The prosecutor noted that “using the same size paper, the
same marker, the Defense has made five
1097
demonstrative aids of their own of similar ilk,
that had been displayed various lengths of
time to the jury.”25 She also noted that defense
counsel was free to use the demonstrative aids
during closing arguments, but that they would
not be sent to the jury or included with the
record. The prosecutor concluded by again
asserting that the record of what had been
written down was already complete.26
¶15 The trial court noted that the actual
demonstrative exhibits “would be somewhat
bulky,” indicated that the record was already
“explicit as to what was being memorialized,”
and denied defense counsel’s request. When
defense counsel asked for “permission for our
own purposes and for our own record to photograph” the challenged exhibits, in case they
were later destroyed, the trial court got angry,
and the following exchange occurred:
THE COURT: You know what? What
you’re asking me to do is for permission to
make your own record outside of the
Court’s record. Denied. The Court’s record
is what’s going to stand. And if you want
to look them up, you can do so. It’s all in
the transcript. There is nothing about this
that has not been memorialized, and the
transcript is the way that we make a record
in Oklahoma courts.
MR. WOODYARD: We think the better
way to show actually how these things sit
in the courtroom and exactly what’s written would be to either have the documents
or the digital photograph, so we’re making
that request and I understand the Court’s
denying our request.
THE COURT: Your understanding is
absolutely on target.
¶16 It seems to me that the preceding review
of the transcript record in this case makes a
few thing quite clear (though certainly not the
contents of the challenged exhibits). The current record is not complete about what was
written on the demonstrative exhibits; everything that was written down on these exhibits
was not memorialized by being read into the
record; and the transcripts alone are not adequate for a fair review of the current claim on
appeal. Defense counsel’s request to digitally
photograph the demonstrative exhibits, as
they appeared in the courtroom, and to either
preserve intact or digitally photograph the
individual exhibits was entirely reasonable. I
conclude the trial court abused its discretion in
1098
denying defense counsel’s requests in this
regard.
¶17 Defense counsel was more than diligent
in attempting to provide this Court with an
adequate record to review his Proposition III
claim. Hence we certainly cannot fault Glossip
for the inadequacy of the current record in this
regard. In fact, the majority opinion acknowledges being “extremely troubled by the trial
court’s attitude toward defense counsel’s
attempt to preserve the demonstrative aides
for appellate review.” And I agree with the
majority that “[t]he total recalcitrance of the
trial court to allow a record to be made creates
error in itself.” Consequently, I cannot understand the majority’s summary conclusion —
made without attempting to review the actual
exhibits at issue — that “[a]ny error in the utilization of these posters was harmless.”
¶18 The State has represented to this Court
that it still has the actual poster exhibits from
Glossip’s trial.27 In his reply brief, Glossip
requests that we order the State to supplement
the record with these actual exhibits. In my
view, if we are going to deny Glossip’s claim,
we should not do so without at least reviewing
the actual demonstrative exhibits, if they are
still available, particularly since Glossip’s
counsel diligently sought to have these
exhibits included in the appellate record.
¶19 The rub, of course, is that Glossip does
not (and did not) challenge the accuracy of the
notes taken by the prosecutor at trial, nor does
he raise a prosecutorial misconduct claim in
this regard. Glossip’s claim in Proposition III is
that the posted exhibits of the prosecutor’s
notes from selected witness testimony (1)
placed undue emphasis on the chosen testimony, (2) violated the rule of sequestration of witnesses, and (3) amounted to a “continuous
closing argument.” Reviewing the actual paper
exhibits could potentially help us resolve these
claims, but such a review might not be decisive, particularly since this Court still would
not know how the various exhibits were displayed in the courtroom. I take up Glossip’s
claims in turn, based upon the limited record
currently before the Court.
¶20 First, I agree that the manner in which
the State was allowed to record and post selected witness testimony, in the context of Glossip’s capital trial, placed undue emphasis upon
this testimony. While this Court has repeatedly
approved the use of demonstrative exhibits,
including summaries of witness testimony, to
Vol. 78 — No. 13 — 4/28/2007
aid the jury in its consideration of evidence, we
have also recognized that demonstrative
exhibits can be misleading and can be misused
in the trial setting.28 In Moore v. State,29 we
addressed a claim that the State’s use of a written summary of an expert witness’s testimony
placed “undue emphasis” on the summarized
evidence. We rejected the claim, based upon
the fact that the jurors only had access to the
summary during the time that the expert witness was actually testifying.30 We also noted
that the summary assisted the trier of fact,
since it helped explain “the extensive fiber evidence in the case at bar.”31 The current case is
distinguishable on its facts.
¶21 Glossip’s jury was able to review the
State’s hand-written summaries of witness testimony long after the testifying witnesses left
the stand, throughout the first stage of his trial.
Furthermore, despite the State’s desire to catalog and display its favorite testimony, such
recording can hardly be described as “necessary” for the jury’s understanding in this case.
Although the trial was long and many witnesses testified, the evidence summarized did
not relate to complex expert testimony or to
concepts that were not readily accessible to
average citizens. And even if the actual
demonstrative exhibits are uncontroversial —
and Glossip has never challenged the State’s
right to create them — there was absolutely no
justification for allowing them to remain in the
courtroom throughout the taking of first-stage
evidence in Glossip’s trial.32 I conclude that the
trial court’s decision to allow the continuous
posting of these exhibits, without any limitation and over defense objection, was an abuse
of discretion, because it placed undue and
unfair emphasis on the summarized testimony.
¶22 I also conclude that the posting of these
hand-written summaries during the testimony
of later witnesses violated the rule of sequestration of witnesses. This rule is codified at 12
O.S.2001, §2615, and was properly invoked by
defense counsel at trial.33 The purpose of this
rule is fairly obvious and is well established:
“It exercises a restraint on witnesses tailoring
their testimony to that of earlier witnesses; and
it aids in detecting testimony that is less than
candid.”34 The State’s argument that the posted
exhibits did not violate the rule of sequestration because the later witnesses couldn’t actually “hear” the testimony of earlier witnesses
— they would have to read it — is ridiculous
in my view. It would certainly violate the rule
of sequestration to provide a later witness with
Vol. 78 — No. 13 — 4/28/2007
a transcript of an earlier witness’s trial testimony, and what occurred in Glossip’s trial was
a limited version of this same phenomenon.
¶23 Furthermore, the possibility of a later
witness learning about the testimony of earlier
witnesses through these lingering exhibits was
more than a theoretical danger in this case. The
testimony of Kenneth Van Treese made quite
clear that he was reading and responding to
the posted testimony of the witnesses who preceded him.35 Hence the posting of the demonstrative exhibits violated the rule of sequestration of witnesses as well.
¶24 I also agree that the overall effect of the
posted summaries of the State’s favorite testimony was akin to allowing the State to post its
theory of the case and to make its closing argument throughout the first stage of Glossip’s
trial.36 Hence I conclude that the trial court
abused its discretion in allowing the State, over
defense objection, to display the prosecutor’s
written summaries of selected witness testimony throughout the courtroom — and apparently visible to both jurors and testifying witnesses — without any limitation and throughout
the evidentiary portion of the guilt stage of
Glossip’s trial. And I find merit in each of Glossip’s three challenges to this decision.
Although it is difficult to confidently evaluate
the prejudice from this trial court error, I
strongly dissent from the majority opinion’s
summary finding that any error in this regard
was “harmless,” particularly when we do not
even seek to review the actual demonstrative
exhibits at issue.
¶25 Regarding Proposition I, I strongly disagree with the majority opinion’s treatment of
Glossip’s challenge to the accomplice corroboration evidence in this case. In Pink v. State,37 a
case that the majority opinion barely acknowledges, this Court recently summarized and
clarified Oklahoma’s corroboration requirement for cases involving accomplice testimony,
found at 22 Okla.Stat.2001, §742.38 As we noted
in Pink, in cases where the State relies upon
accomplice testimony, the defendant can only
be convicted where the State also presents evidence that “standing alone, tends to link the
defendant with the commission of the offense
charged.”39 Hence the State must present “at
least one material fact of independent evidence
that tends to connect the defendant with the
commission of the crime,” which is entirely
separate from the accomplice testimony, but
which corroborates some material aspect of
that testimony.40 We noted in Pink that this
1099
Court has in the past found the following independent evidence to be adequately corroborating: “evidence of stolen goods found in the
defendant’s possession, the testimony of nonaccomplice associates of the defendant, [and]
admissions by the defendant.”41 This Court has
never found that evidence that a defendant
had a motive to commit a particular crime or
that he helped conceal a crime committed by
another is enough, standing alone, to link that
defendant with the actual commission of the
crime at issue. Yet this is the “corroboration”
evidence focused upon in today’s majority
opinion.42
¶26 The Court’s opinion initially notes that
“[t]he State concedes that motive alone is not
sufficient to corroborate an accomplice’s testimony.” Yet the opinion then attempts to
demonstrate, by relying on cases from Texas,
California, and Georgia, that evidence of a
defendant’s motive, as well as evidence about
concealing the commission of a crime and
attempted flight, can be adequate as corroborating evidence. These cases are entirely irrelevant to interpreting Oklahoma’s very specific,
accomplice corroboration statute.43 And the
majority opinion does not cite any Oklahoma
authority for (or make a persuasive argument
for) its assumption that non-accomplice evidence suggesting that a defendant had a
motive to commit a crime, assisted the perpetrator in concealing a crime, or planned to
leave the area afterward can qualify as adequate corroborating evidence linking a defendant to the actual commission of the crime
under 22 O.S.2001, §742.44
¶27 In fact, this Court has specifically held
that evidence implicating a defendant as an
“accessory after the fact” — through his
actions of helping dispose of the victim’s body,
lying to the police, and attempting to conceal a
murder that he had directed others to commit
— is not adequate to “independently connect
him to the actual commission of [the] murder,”
under Oklahoma’s accommodation requirement.45 The facts of Cummings are quite similar
to the current case. Cummings apparently
directed both of his wives to kill his sister by
shooting her, but was not present when the
murder was committed by his second wife.
When he returned home, he assisted in the disposal of his sister’s body and lied to the police
about it.46 Despite the strong evidence of Cummings’s guilt, including the testimony of both
of his (accomplice) wives, this Court reversed
1100
his conviction for murdering his sister based
upon the accomplice corroboration rule.47
¶28 This Court’s 2001 opinion in this case, in
which we reversed Glossip’s conviction based
upon ineffective assistance of counsel,48
emphasized the minimal nature of the corroborating evidence in this case. We stated: “The
evidence at trial tending to corroborate Sneed’s
testimony was extremely weak.”49 We also
characterized certain inadmissible double
hearsay testimony as “arguably the only evidence presented at trial that tended to independently corroborate any portion of Justin
Sneed’s testimony implicating Appellant in the
crime and establishing a motive.”50 We
declined to reach the question of the adequacy
of corroboration, however, choosing instead to
reverse on Glossip’s ineffective assistance
claim.51
¶29 The current opinion, after recognizing
the corroboration requirement, takes a very
different tone: “In this case, the State presented
a compelling case which showed that Justin
Sneed place himself in a position where he was
totally dependent on Glossip.” Of course that
has nothing to do with independent evidence
linking Glossip to the actual commission of the
murder of Barry Van Treese. The opinion then
discusses Sneed’s accomplice testimony and
the State’s case as a whole. I believe that we
must first focus upon the very narrow question
of whether the State presented separate evidence, independent of the testimony of Sneed,
that connects Glossip to the actual murder and
that materially corroborates some aspect of
Sneed’s accomplice testimony.
¶30 Although the question is very close, I
agree with the majority that “the most compelling corroborative evidence . . . is the discovery of the money in Glossip’s possession.”
Unfortunately, this single, conclusory sentence
represents the entirety of the Court’s analysis
on this critical issue. I offer the following as an
alternative, more narrow resolution of this
issue.
¶31 According to the record in this case,
when Glossip was questioned and then arrested on January 9, 1997, he was carrying $1,757
in cash, approximately $1,200 of which could
not be accounted for by Glossip.52 Such unaccounted-for cash, when not uniquely identified by serial number or some other marking,
is not nearly as strongly corroborating as the
presence of identifiable stolen goods that are
found in the defendant’s possession. Never-
Vol. 78 — No. 13 — 4/28/2007
theless, considering this case as a whole,
including the State’s evidence that Glossip was
a person of very limited means, who was low
on cash at the time, and the timing of his arrest,
I agree that this evidence materially corroborated Sneed’s testimony.53 The evidence
regarding Glossip’s paycheck, sales, and purchases, which could not explain where he
obtained approximately $1200 of the cash in
his possession at the time of his arrest, materially corroborated Sneed’s testimony that Glossip offered him money to kill Van Treese and
then paid Sneed for accomplishing the murder,
using half of the cash stolen from Van Treese’s
car, and then kept the remaining stolen money
for himself.54 As noted in Pink, this Court has
“not required that the quantity of the independent evidence connecting the defendant to
the crime be great, though we have insisted
that the evidence raise more than a mere suspicion.”55 I conclude that the amount of unaccounted-for cash found in Glossip’s possession
two days after the murder does tend to directly link him to this murder-for-hire killing and
adequately corroborates the testimony of his
accomplice, Justin Sneed.
¶32 Although the issue is close, I conclude
that the facts of this case are distinguishable
from Pink, wherein we reversed the defendant’s conviction for robbery with a dangerous
weapon because the State did not present adequate independent evidence connecting Pink
to the armed robbery at issue.56 I also find the
Pink case distinguishable because the prosecutor in that case argued to the jury, contrary to
well-established Oklahoma law, that the jury
was not required to find the existence of evidence, separate from the testimony of any
accomplices, that tended to connect the defendant with the commission of the offense.57 This
argument prompted us to revise the language
of OUJI-CR(2d) 9-32, upon which the prosecutor in Pink had based her argument.58 Although
Glossip’s trial was conducted using the prePink version of this instruction, the prosecutor
in his case specifically acknowledged, during
closing argument, that Glossip’s jury was
required to find adequate corroborating evidence in order to convict him of murder. Hence
Glossip’s jury was not misled in this regard.
¶33 It is important to distinguish the adequate corroboration requirement found in 22
Okla. Stat.2001, §742, which applies only to
cases involving accomplice testimony, from the
general sufficiency of the evidence standard,
which can be applied to any conviction. After
Vol. 78 — No. 13 — 4/28/2007
the independent corroboration standard has
been met for any accomplice testimony, this
Court can and will consider all the evidence
presented at trial, including accomplice testimony, to determine whether sufficient evidence was presented to convict the defendant.59 In this regard, I agree with the majority
that the State presented a strong circumstantial
case against Glossip, which when combined
with the testimony of Sneed directly implicating Glossip, was more than adequate to sustain
his conviction for the first-degree murder of
Barry Van Treese.
¶34 Nevertheless, I dissent from today’s
decision based upon my analysis of Glossip’s
Proposition III claim.
1. This Court addressed the practice of jurors taking notes in Cohee
v. State, 1997 OK CR 30, 942 P.2d 211 (per curiam). We held that it was
not error to allow jurors who took notes during a trial to take their
notes into the jury room with them during deliberations. Id. at ¶5, 942
P.2d at 213. Although Cohee did not require trial judges to allow jurors
to take notes, it recognized that note-taking has substantial potential
benefits during a trial:
Use of notes may aid the jury during their deliberations. We find
that jurors may benefit from notes in several ways: (1) jurors
may follow the proceedings more closely and pay more attention as they take notes for later use; (2) jurors’ memories may be
more easily and reliably refreshed during deliberations; (3)
jurors may make fewer requests to have portions of a trial transcript read back during deliberations; and (4) the ability to use
their notes may result in increased juror morale and satisfaction.
Id. at ¶4, 942 P.2d at 212. I would hope that trial courts considering
whether to allow jurors to take notes would weigh these potential benefits against the potential risks from this practice.
2. The court stated: “You know, note taking is a skill. If you’re in a
job or a student where you take notes every day, you get pretty proficient at it and you have a pretty good skill level at it. If it’s been years
since you’ve taken notes, you’re pretty lousy at it.” The court then
explained that jurors would not be able to interrupt witnesses and ask
them to repeat testimony, in order to ensure the accuracy of their notes,
and described a scenario where a juror’s written notes conflicted with
that juror’s memory of what was said: “And then you’re confused[,] is
what I wrote down right or is it the way I remember it right.”
3. The trial judge noted that she would provide jurors with a log of
what happened each day, which “really helps” jurors remember what
they heard. The record contains a court exhibit with a log of witnesses
who testified, with a general description of who they were, such as
“girlfriend of defendant,” which was given to Glossip’s jury. Yet this
log contains no summary or other substantive information regarding
the actual testimony of the witnesses.
4. The trial court ruled that since there was going to be some overlap between the testimony of these two persons, both of whom were
immediate family members of the victim, the victim’s brother would
be asked to leave the courtroom during the testimony of the victim’s
wife. (Although the record reveals that Mrs. Van Treese remarried and
changed her name in 2003, she is referred to herein, as she was at trial,
as Donna Van Treese. )
5. As addressed further infra, the record in this case does not contain either the actual paper exhibits at issue or any photographs of
them. The parties seem to agree, however, that the paper pad, which
was used to create the various demonstrative exhibits at issue herein,
was approximately 2 feet by 3 feet in size.
6. The transcript in this trial sometimes reveals what was written
down, because the prosecutor makes the statement “I have written . .
.” and then (presumably) states exactly what was written. At other
times the examining prosecutor indicates that he/she is recording certain testimony, but then fails to state what exactly he/she has recorded. And it is entirely possible that on some occasions statements were
written down without the examining attorney mentioning it at all.
Hence the transcript serves as a limited and fundamentally incomplete
record of what was written on the large paper demonstrative exhibits
at Glossip’s trial. I strongly disagree with the majority opinion’s suggestion that a careful review of the transcript is “the only way to determine what was on the posters, in Toto [sic].” The only way to deter-
1101
mine the complete contents of the posters is to review the actual
posters.
7. For example, the prosecutor recorded that the hotel bookkeeping (during the second half of 2006) was “not up to par” and also
apparently wrote “lifestyle decision not to fire Glossip during family
turmoil” and “year-end totals and losses demand change.” Although
none of these remarks were actual quotes from the witness, these and
similar statements that were apparently written down were reasonable summaries of witness testimony and were not challenged, in
terms of content, either at trial or on appeal.
8. The prosecutor apparently wrote, “Last time I saw Barry it was
on the 7th in the morning between 7 and 7:30. He was leaving to go to
the store and buy some supplies.”
9. The record suggests that at some point during the cross examination of Wood, defense counsel wrote on the paper pad as well, since
he refers to “1-7,” for January 7th, and explains to Wood that “BVT”
stands for Barry Van Treese. Yet the transcript is totally unclear what
else, if anything, defense counsel wrote down.
10. Defense counsel stated:
We want to make an objection for the record to the posting
of demonstrative exhibits that are basically an accumulation of
notes written by the prosecutors to remain throughout the
course of the variety of witnesses.
I understand the need sometimes for a demonstrative exhibit with a particular witness and then you bringing a demonstrative exhibit out with others, but basically all this does is emphasize the testimony of—it’s only part of the testimony. And as a
result of that we do object.
11. The prosecutor asserted:
Your Honor, we have a right to make a demonstrative exhibit. I have not and will not move to introduce those exhibits into
evidence. This demonstrative exhibit is a running, continuing
tally of the various spins that this Defendant has put on, you
know, his version of the facts. It’s his fault that there are so many
of them, there are so many witnesses and people that he talked
to.
12. The State asserts on appeal that this Court should review Glossip’s claim regarding the posting of the demonstrative exhibits only
for “plain error,” since Glossip’s counsel did not re-raise his objection
every time the prosecutor posted a new exhibit. Yet on-the-record
comments made at the end of the first stage of Glossip’s trial indicate
that the issue of posting and also of preserving these exhibits may
have been further addressed, off the record, at trial. Furthermore, the
record indicates that the trial court was fully aware of Glossip’s
“undue emphasis” objection and had no intention of sustaining it.
Hence I find that this claim was adequately preserved at trial.
13. The prosecutor also attempted to record the approximate time
at which each of these statements was made by Glossip.
14. In the later part of Hooper’s direct testimony, it becomes
impossible to tell exactly what, if anything, is being written down,
though the favorable nature of Hooper’s testimony and the prosecutor’s initial remark about wanting to write “all this up here” suggests
that the prosecutor may have continued to summarize portions of
Hooper’s testimony on the paper pad.
15. For example, she wrote down that Glossip described the victim, who had been found the previous evening, as “deader than a
doornail,” “cold as ice,” and “beat to a bloody pulp.” The prosecutor
also apparently recorded some version of Glossip’s remark to Bender
that if the police hadn’t told him to “stick around,” he “would have
already been gone.”
16. The exchange at the bench was as follows:
THE COURT: There’s one other matter that I think in fairness should be listed up there, which is that he [Glossip] told
them [sic] [Bender] that he was in fear for his life.
MS. SMOTHERMON: Okay. I will.
THE COURT: And in the interest of fairness, I want to make
sure that—if you’ll just fix that, please.
MS. SMOTHERMON: I will.
17. Once again, however, the record does not reveal precisely what
was written down.
18. Jacquelyn Williams was a housekeeper who lived in the Best
Budget Inn rent-free, but who was not otherwise paid for her services.
The transcript only clearly indicates one portion of her testimony that
the prosecutor wrote down, namely, that Glossip told her to stay in her
room when the owner came around. Yet the prosecutor’s style of questioning, repeatedly clarifying particular pieces of information, suggests that she may have been taking notes on other testimony as well.
19. Kayla Pursley worked the night shift at a gas station across
from the Best Budget Inn. The transcript makes clear that the prosecutor wrote down that around 8:30 a.m., on January 7, Glossip told Pursley that “there was a fight between two drunks and they had thrown
a footstool through the window,” and that “one of the drunks was the
strange guy that [Pursley] had seen earlier,” and that Glossip and
Sneed “threw the drunks out.” The prosecutor later indicated that she
was writing down other testimony “before I forget,” which apparent-
1102
ly included Glossip’s statements to Pursley about the broken window
in Room 102, i.e., that he and Sneed “already cleaned that up” and that
one of them “got cut.” It is unclear whether the prosecutor wrote
down other testimony from Kayla Pursely.
20. Michael Pursley had been married to Kayla Pursley and was
living with her and their children at the Best Budget Inn at the time.
The transcript indicates that the prosecutor wrote down his testimony
that around 8:30 a.m., on January 7, Glossip told him that he “knew
the window [in Room 102] had been broken,” that Glossip and Sneed
had “been in the room,” and that they knew “who had broken the window” and were “going to bill them for it.”
21. Sometimes the record is quite clear about what is being written,
such as when the prosecutor quotes Glossip as saying to Brown,
“Things keep getting turned around, I didn’t say I saw Barry at 7:00
a.m.” After getting confirmation of this quote from Brown, the examining prosecutor asks, “Now, did we get that, Ms. Smothermon?”, and
she responds, “Yes, sir.” Yet on other occasions the examining prosecutor asks Brown to confirm “what Ms. Smothermon is writing” and
that she “has it right,” but fails to review what has been written.
22. The transcript indicates that she wrote down Glossip’s statements about Van Treese returning from Tulsa around 2:30 or 3:00 a.m.
on the morning of January 7, that Glossip had last seen Van Treese
around 7:00 a.m. that same morning, and that Glossip said he had
rented Room 102 to “a couple of drunk cowboys,” who had gotten into
a fight and broken the window.
23. The prosecutor did not challenge defense counsel’s description
of the paper demonstrative exhibits being “taped to various places in
the courtroom.” Glossip’s appellate brief asserts that according to his
trial counsel, “there were at least twelve of the State’s posters plastered
up across the front of the prosecutor’s table, the trial bench, and any
other available space in the courtroom.” The current record, however,
is inadequate to evaluate this specific claim.
24. See Anderson v. State, 1985 OK CR 94, ¶4, 704 P.2d 499, 501 (“It
is well established that counsel for a defendant has a duty to insure
[sic] that a sufficient record is provided to this Court, so that we may
determine the issues.”) (citation omitted).
25. In particular, the prosecutor described an exhibit recording a
statement in which Sneed denied he had killed Van Treese, which was
displayed during Sneed’s testimony and that of others. Defense counsel did not dispute the prosecutor’s assertion that he had created five
demonstrative aids comparable to those made by the State.
26. “I worked very hard to put everything that was written into the
record and to make sure that all of their demonstrative aids were read
into the record. And I believe the record to be complete.”
27. Appellate counsel for Glossip, however, apparently does not
possess the poster exhibits that were made by defense counsel at Glossip’s trial.
28. See, e.g., Dunkle v. State, 2006 OK CR 29, ¶64, 139 P.3d 228, 249
(finding that State’s use of demonstrative exhibits, in the form of computer-generated animations or “reenactments,” was “inappropriate
and highly misleading”). This Court recognized in Dunkle that even
though demonstrative exhibits “should not be made available for the
jury during deliberations, as they have ‘no independent evidentiary
value,’’’ such demonstrative aids must nevertheless be authenticated
and evaluated to determine whether they are relevant and whether
their probative value is outweighed by the danger of unfair prejudice
or by other trial considerations (confusion of the issues, undue delay,
cumulative evidence, etc.). Id. at ¶¶53-54, 139 P.3d at 246-47 (citation
omitted). Demonstrative exhibits that summarize witness testimony
can be authenticated by demonstrating that the summary
provided/created is consistent with the witness’s testimony.
29. 1990 OK CR 5, 788 P.2d 387.
30. Id. at ¶44, 788 P.2d at 398.
31. Id.
32. In Lanning v. Brown, 377 S.W.2d 590 (Ky. 1964), Kentucky’s
highest state court noted that although it was proper to display a chart
summarizing an injured victim’s testimony about her damages during
that witness’s testimony, “it is quite another thing to allow a particular segment of testimony to be advertised, bill-board fashion, after the
living witness has vacated the stand,” particularly if the exhibit “is not
being used in connection with the subsequent testimony of other witnesses.” Id. at 594. The Lanning court concluded that the trial court
erred in allowing the damages demonstrative exhibit to remain visible
in the courtroom, over objection, throughout the remainder of the trial.
Id. Because the amount of damages was not in dispute, however, the
court found that the error did not prejudice the defendants in that case
and granted no relief. Id.
33. See 12 O.S.2001, §2615 (“At the request of a party the court shall
order witnesses excluded so that they cannot hear the testimony of
other witnesses.”). This rule is also known as “the rule of exclusion”
and is typically invoked at trial by referring simply to “the rule.”
While there are exceptions to this rule, both statutory and by common
law, none are relevant in this case.
34. Clark v. Continental Tank Co., 1987 OK 93, ¶6, 744 P.2d 949, 951
(quoting Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1347, 47
Vol. 78 — No. 13 — 4/28/2007
L.Ed.2d 592). The Clark opinion notes that the practice of sequestering
witnesses, in order to seek the truth, goes “as far back as the days of
Daniel and the story of Susanna.” Id. at ¶5, 744 P.2d at 950-51.
35. When Kenneth Van Treese was asked what Glossip said to him
on January 8, 1997, regarding the disappearance of Barry Van Treese,
he responded: “He [Glossip] told me the same thing that these notes
up here are about. About having seen Barry at 7:00, you know, blah,
blah, and so forth.” In other words, he told me the same lame story
that he told the other witnesses, as we all can see from these posted
summaries of their testimony.
36. See, e.g., Vanlandingham v. Gartman, 367 S.W.2d 111, 114 (Ark.
1963) (“[A]lthough an attorney might use a chart or blackboard to
illustrate his argument, it would not be fair to place the illustration
where it could be seen by the jury at times when the attorney was not
using it in making his argument. If the jury could see it all day[,] it
would be the same as arguing the case all day.”).
37. 2004 OK CR 37, 104 P.3d 584.
38. 22 O.S.2001, §742 (“A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the
offense, and the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.”).
39. 2004 OK CR 37, ¶15, 104 P.3d at 590 (quoting Cummings v. State,
1998 OK CR 45, ¶20, 968 P.2d 821, 830).
40. Id. at ¶16, 104 P.3d at 590 (internal citations omitted). The
State’s brief quotes paragraphs 15 and 16 of Pink in their entirety.
41. Id. at ¶20, 104 P.3d at 592 (citing cases).
42. The opinion initially refers to “four . . . aspects of Glossip’s
involvement, . . . which point to his guilt: motive, concealment of the
crime, intended flight, and . . . his control over Sneed.” Yet after
reviewing the evidence on these four issues, the opinion concludes
that this evidence, “taken together,” is not merely indicative of guilt
under a traditional sufficiency-of-the-evidence analysis, it is adequate
to “corroborate Sneed’s story about Glossip’s involvement in the murder” and “sufficiently ties Glossip to the commission of the offense.”
43. The State notes in its brief, correctly, that “Defendant’s challenge to the accomplice testimony in this case rests on pure state law
grounds.”
44. The opinion does not cite any authority for (or even fully develop) its contention that evidence of a defendant’s “control” over the
perpetrator can be adequate corroboration.
45. See Cummings v. State, 1998 OK CR 45, ¶21, 968 P.2d 821, 830.
46. Id. at ¶¶2-11, 968 P.2d at 827-28.
47. Id. at ¶21, 968 P.2d at 830 (“As Appellant contends, outside of
the testimony of Juanita and Sherry, the evidence only supports a finding that Appellant assisted his wives in lying to the police and in covering up the crime. It does not independently connect him to the actual commission of Judy Mayo’s murder.”). This Court upheld Cummings’s conviction for the murder of his niece, however, because his
second wife was not an accomplice to this separate murder; hence her
testimony provided adequate independent evidence corroborating the
testimony of Cummings’s first wife (who was an accomplice) regarding the murder of their niece. Id. at ¶¶22-23, 968 P.2d at 830-31.
48. See Glossip v. State, 2001 OK CR 21, 29 P.3d 597.
49. Id. at ¶8, 29 P.3d at 599. We also noted that “the only ‘direct evidence’ connecting Appellant to the murder was Sneed’s trial testimony,” and that “[n]o forensic evidence linked Appellant to [the] murder
and no compelling evidence corroborated Sneed’s testimony that
Appellant was the mastermind behind the murder.” Id. at ¶7, 29 P.3d
at 599.
50. Id. at ¶21, 29 P.3d at 602.
51. Id. at ¶8, 29 P.3d at 599.
52. On the evening of January 6, 1997, Van Treese paid Glossip for
his work in December of 1996 with a check for $429.33. According to
Glossip’s girlfriend, she and Glossip paid a 10% fee to cash the check
on January 7, which would have left them with $386.40. They then
went shopping and spent $172 for a pair of glasses, $107.73 for an
engagement ring for her, and $45 more at Wal-Mart. These purchases
would have left Glossip with only $61.67 from his paycheck. It can be
reasonably inferred from the evidence that Glossip was very low on
cash before being paid, because earlier in the day on January 6, he took
a $20 advance from the hotel against the paycheck he was about to
receive, to get through the day. In addition, Glossip’s girlfriend told an
investigator that they lived paycheck to paycheck and that she did not
think Glossip was able to save any money.
Glossip later stated, during an interview in June of 1998, that just
before he was arrested in this case, he sold his TV and futon for $190,
sold his vending machines for $200, and sold an aquarium for $100, for
a total of $490. If Glossip still had all of this cash, plus the money leftover from his paycheck at the time of his arrest, he would have had
approximately $552 in cash.
53. The finding of “stolen goods” in the defendant’s possession is
one of the examples of independent corroborating evidence noted in
Pink. 2004 OK CR 37, ¶20, 104 P.3d at 592.
Vol. 78 — No. 13 — 4/28/2007
54. The State presented evidence at trial that Barry Van Treese
would have had $3500 to $4000 in cash in his possession, based on
hotel receipts. Justin Sneed testified that the envelope he found under
the front seat of Van Treese’s car, where Glossip told him to look, contained approximately $4,000 in cash, which Glossip split evenly
between Sneed and himself. When Sneed, who had no regular source
of income, was apprehended one week later, he told investigators that
he still had some of the money that he had been paid and where it
could be found. When investigators searched the apartment to which
Sneed directed them, they found a Crown Royal Bag containing $1,680
in cash in a drawer that Sneed was using while he stayed in the apartment.
55. 2004 OK CR 37, ¶16, 104 P.3d at 590 (emphasis in original). We
also noted in Pink that “circumstantial evidence can be adequate to
corroborate an accomplice’s testimony.” Id. at ¶16, 104 P.3d at 590-91.
56. See Pink, 2004 OK CR 37, ¶¶17-20, 104 P.3d at 591-92.
57. Id. at ¶22, 104 P.3d at 592.
58. Id. at ¶23, 104 P.3d at 593.
59. Hence although I reject the majority opinion’s suggestion that
Glossip’s failure to immediately disclose his knowledge of Van
Treese’s murder and his misleading of the investigation can serve as
adequate corroborating evidence under §742, I agree that this evidence
can be considered as going to consciousness of guilt within our overall sufficiency of the evidence analysis, after adequate corroboration is
established.
A. JOHNSON, JUDGE, DISSENTING:
¶1 I dissent for the reasons well expressed in
Judge Chapel’s dissenting opinion.
¶2 Providing visual aids for the jury is a
common trial practice. Done right, it focuses
the jurors’ attention, enhances their understanding, and sharpens their memory. Done
right, it is an important part of a fair and well
run trial.
¶3 Here, in the image of an American courtroom plastered with poster-size trial notes
taken by the prosecutor, we see the practice
gone badly wrong.
¶4 The process allowed the prosecution, in
effect, a continuous closing argument, and
may well have violated the rule of sequestration of witnesses. This Court cannot judge the
effect of the process on this defendant’s right to
a fair trial with any assurance because the trial
court refused the defendant’s request to have
the posters and their placement in the courtroom made part of the appellate record. Under
those circumstances, we should not assume
this error was harmless.
2007 OK CR 13
HARLAN EVANS, Appellant, v. STATE OF
OKLAHOMA, Appellee.
Case No. F-2005-673. April 12, 2007
SUMMARY OPINION
PER CURIAM:
¶1 Appellant, Harlan Evans, was convicted
by a jury in Lincoln County District Court,
Case No. CF-2004-189, of Count 1, Conspiracy
to Traffic in Methamphetamine (63
O.S.Supp.2002, §§2-408, 2-415); Count 2,
1103
Unlawful Use of a Communication Facility (13
O.S.Supp.2003, §176.3); Count 3, Conspiracy to
Traffic in Marijuana (63 O.S.Supp.2002, §§2408, 2-415); Count 4, Trafficking in Methamphetamine (63 O.S.Supp.2002, §2-415); Count
5, Distribution of Marijuana (63 O.S.Supp.2004,
§2-401 (B)(2)); and Count 6, Trafficking in
Methamphetamine (63 O.S.Supp.2002, §2-415).
The jury recommended punishment as follows: Count 1, fifty years imprisonment and a
$200,000 fine; Count 2, five years imprisonment and a $5000 fine; Count 3, fifty years
imprisonment and a $200,000 fine; Count 4,
ninety years imprisonment and a $200,000 fine;
Count 5, ninety years imprisonment and a
$20,000 fine; and Count 6, life imprisonment
and a $200,000 fine. On July 13, 2005, the Honorable Paul M. Vassar, District Judge, sentenced Appellant accordingly. 1 This appeal
followed.
¶2 Appellant raises the following propositions of error:
1. Appellant’s motion to suppress should
have been sustained regarding the particularity of the search warrant.
2. The wiretap application was defective
and Appellant’s motion to suppress should
have been sustained.
3. Normal investigative techniques were
not exhausted prior to issuing the wiretap
order, making it invalid.
4. Material variances regarding the date of
the crime alleged in Count 2, and the
nature of the crimes alleged in Counts 1
and 3, prejudiced Appellant.
5. Appellant’s convictions for two separate
drug conspiracies constitutes double punishment.
6. Error occurred when the State failed to
preserve physical evidence.
7. Convictions on Counts 4 and 5 constitute
double punishment.
8. The trial court erred in allowing the
State’s case agent to give an overall conclusion of criminal conduct based on his interpretation of “code words.”
¶3 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 affirm. As
to Proposition 1, the detailed directions given
in the search warrant were sufficient to enable
1104
police to find Appellant’s home without difficulty; the inaccuracy in the physical address
that Appellant complains of did not render the
warrant constitutionally invalid, and the trial
court’s denial of Appellant’s motion to suppress was proper. Wilson v. State, 1978 OK CR
16, ¶¶2-3, 574 P.2d 1075, 1076; United States v.
Dorrough, 927 F.2d 498, 500-01 (10th Cir. 1991).
Proposition 1 is denied.
¶4 In Propositions 2 and 3, Appellant claims
that the court order authorizing interception of
his telephone conversations was invalid,
because (1) there is no evidence that the district
attorney submitted a written application for
such order; (2) the written application for the
order, submitted by the Attorney General,
included an incorrect description of Appellant’s physical address; and (3) the State failed
to establish that all other reasonable modes of
investigation had been exhausted before seeking the order. We find no statutory requirement that a wiretap order be initiated by a
written request from the district attorney;
rather, such an order is predicated on an application submitted by the Attorney General, initiated by a law enforcement officer and authorized by the district attorney. 13 O.S.Supp.2004,
§§176.7, 176.9(A)(1). As for the misdescription
of Appellant’s physical address (also at issue in
Proposition 1), we find this to be immaterial
because the order was directed not at a physical place, but at a mobile communications
device whose assigned telephone number, serial number, and registered owner were all correctly identified. 13 O.S.Supp.2004, §176.9(A).
Finally, the wiretap application did, in fact,
relate with particularity why other methods of
investigation had proven, and would continue
to prove, unsuccessful or inadequate. The State
was not required to exhaust every other conceivable investigative tool before seeking a
wiretap order. 13 O.S.Supp.2004, §176.9 (A)(3).
Propositions 2 and 3 are therefore denied.
¶5 As to Proposition 4, Appellant has failed
to demonstrate how the trial court’s approval
of amendments to the Information at trial (one
to correct a typographical error, the other to
supply a more precise date for the offense)
prejudiced him in any way. We find no error
here. 22 O.S.2001, §304; Strunk v. State, 1969 OK
CR 30, ¶¶4-5, 450 P.2d 216, 219. As to Proposition 5, the two conspiracies alleged by the State
involved different plans and different participants; hence, it was not improper to charge
them as discrete crimes. Kinchion v. State, 2003
OK CR 28, ¶11, 81 P.3d 681, 684-85. As to
Vol. 78 — No. 13 — 4/28/2007
Proposition 6, Appellant fails to allege, much
less demonstrate, any bad faith in the loss of a
recording of a conversation between Appellant
and a police witness. The witness was subject
to cross-examination about the conversation.
We find no due process violation here. Ochoa v.
State, 1998 OK CR 41, ¶26, 963 P.2d 583, 595;
Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct.
333, 337, 102 L.Ed.2d 281 (1988); Sheker v.
State,1982 OK CR 52, ¶¶10-11, 644 P.2d 560,
563. As to Proposition 7, Appellant’s convictions for trafficking in methamphetamine, and
distributing marijuana, based on activities
with the same informant on the same day did
not constitute double punishment; each
offense required proof of a fact that the other
did not, and given the differences between the
two statutes involved, we discern no legislative intention to treat the offenses as parts of a
single criminal act for purposes of punishment. 21 O.S.2001, §11; Bogue v. State, 1976 OK
CR 274, ¶¶6-7, 556 P.2d 272, 274-75. As to
Proposition 8, the trial court did not abuse its
discretion in permitting a police witness to testify about certain “code” meanings of words
and phrases used by Appellant and his associates in telephone conversations. These interpretations were based on the officer’s personal
experience and training in drug interdiction,
they were helpful to the jury, they did not
improperly tell the jury who or what to
believe, and the witness was subject to crossexamination about his interpretations. 12
O.S.2001, §2702; Marr v. State, 1987 OK CR 173,
¶8, 741 P.2d 884, 886; see also United States v.
Quintana, 70 F.3d 1167, 1171 (10th Cir. 1995).
DECISION
¶6 The Judgment and Sentence of the district court is AFFIRMED. 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.
AN APPEAL FROM THE DISTRICT COURT
OF LINCOLN COUNTY
THE HONORABLE PAUL M. VASSAR,
DISTRICT JUDGE
Michael Gassaway
John Jensen
Attorneys at Law
One North Hudson, Suite 1100
Vol. 78 — No. 13 — 4/28/2007
Oklahoma City, OK 73102,
Attorneys for Defendant
Clayton Neimeyer
Assistant District Attorney
Lincoln County Courthouse
811 Manvel Ave., Suite 1
Chandler, OK 74834
-andScott Rowland
General Counsel
Oklahoma State Bureau Of
Narcotics and Dangerous Drugs
4545 N. Lincoln, Suite 11
Oklahoma City, Ok 73105
Michael Gassaway
Attorney at Law
One North Hudson, Suite 1100
Oklahoma City, Ok 73102
Attorney for Appellant
Donald D. Self
313 N. E. 21st
Attorneys for the State
OPINION BY: PER CURIAM
Lumpkin, P.J.: Concurs
C. Johnson, V.P.J.: Recused
Chapel, J.: Concurs
A. Johnson, J.: Concurs
Lewis, J.: Concurs in Results
1. The trial court sentenced Appellant in accordance with the jury’s
recommendations, except that as to Count 3, the fine was reduced
from $200,000 to $100,000.
2007 OK CR 14
ISIDRO MARQUEZ-BURROLA, Appellant,
v. THE STATE OF OKLAHOMA, Appellee.
Case No. D-2003-1140. April 17, 2007
OPINION
C. JOHNSON, VICE PRESIDING JUDGE:
¶1 Appellant, Isidro Marquez-Burrola, was
charged in the District Court of Grady County,
Case No. CF-2002-45, with First Degree Murder (21 O.S.2001, §701.7 (A)). The State alleged
two aggravating circumstances in support of
the death penalty: (1) that the murder was
especially heinous, atrocious, or cruel; and (2)
that there existed a reasonable probability that
Appellant would constitute a continuing
1105
threat to society. Jury trial was held February
3-6, 2003, before the Honorable Richard G. Van
Dyck, District Judge. The jury found Appellant
guilty as charged, found the existence of both
aggravating circumstances, and recommended
a sentence of death. The district court formally
sentenced Appellant on October 20, 2003.
FACTS
¶2 On February 13, 2002, Appellant killed his
wife, Enriqueta, by cutting her throat with a
knife. The couple had been married some seventeen years, and had three children, two of
them teenagers. Appellant and his wife had
grown up in the same small town in Mexico. In
1997 they moved to Oklahoma, where one of
Appellant’s brothers lived. At the time of the
homicide, Appellant remained a citizen of
Mexico, but was working for a company
in Edmond, Oklahoma, installing sprinkler
systems.
¶3 The State presented evidence of Appellant’s jealousy and distrust of his wife. The
couple’s teenage children, and other witnesses,
testified to instances of Appellant’s aggression
and occasional violence toward Enriqueta.
Appellant accused Enriqueta of having extramarital affairs. A few days before the homicide, Appellant assaulted a co-worker, Joselito
Rodriguez, with a piece of PVC sprinkler-system pipe, allegedly because Rodriguez
claimed to have slept with Appellant’s wife.
During this period of time, Enriqueta moved
in with her brother, Jose Marquez, and his girlfriend, Alicia Nunez-Ortaga. She told her
brother that she planned to leave Appellant
because he was too jealous and violent.
¶4 The day before the homicide, Appellant’s
brother, Julian, was concerned about Appellant’s well-being and took him to see a “brujo,”
or Mexican spiritual counselor. Appellant told
the counselor about his problems, prayed with
the counselor, and promised to come back at a
later date. Although Appellant routinely drove
a company truck and carried a company cell
phone while at work, on the day before the
homicide, he left the truck and phone at a job
site.
¶5 On the morning of the homicide, Appellant called his employer, explained that he was
having marital troubles and had some things
to take care of, and said that he would be back
to work after that. Appellant’s son, Isidro Jr.,
testified that Appellant drove him to school
that morning; when the son asked if Appellant
would pick him up after school, Appellant said
1106
he would, but “looked the other way as if he
was sad or something.” Later that morning,
Appellant called his wife and arranged to visit
her at her brother’s home, ostensibly to talk
about the children. When Appellant arrived,
Enriqueta spoke briefly with him outside; she
told her brother’s girlfriend that they were
going to visit a counselor and that she would
call soon.
¶6 A short time later that day, a truck driver
saw Appellant driving along the highway with
a blood-soaked body in the passenger seat of
his car, and notified the police. Appellant’s
vehicle was stopped by the Oklahoma Highway Patrol. Enriqueta’s body lay in the front
passenger seat. The trooper testified that it did
not appear she had been dead for very long.
Appellant was arrested without incident. A
blood-stained filet knife was found between
the front seats of the car.
¶7 An autopsy revealed that Enriqueta suffered four separate cuts to her neck, one of
which cut through approximately eighty percent of her neck, severing her esophagus, trachea, and venous structures, but leaving the
main artery intact. The autopsy also revealed
several defensive knife cuts to Enriqueta’s
hands, one of which almost severed a finger.
The medical examiner testified that Enriqueta
could have remained conscious for several
minutes after the fatal injury, as blood continued to flow to her brain and she was still able
to breathe, albeit through the opening in her
neck rather than through her mouth or nose.
The blood leaving her brain drained out of her
severed veins and seeped into her lungs. The
medical examiner concluded that Enriqueta
not only bled to death, but drowned in her
own blood in the process. The number of cuts
to the neck, the frothing around the wound
caused by aspirated blood, and the defensive
wounds on Enriqueta’s hands, all led the medical examiner to conclude that Enriqueta’s
death was neither instantaneous nor painless.
¶8 The defense claimed that Appellant killed
his wife in a heat of passion. Appellant told
police that while driving with his wife that
morning, she admitted to a number of affairs
with other men and insulted his masculinity.
Appellant said he was enraged by these statements and used a large knife, which he kept in
the glove box, to cut his wife’s throat. The
defense also presented psychiatric testimony
showing that since the homicide, Appellant
had reported delusions of seeing his wife and
hearing her speak to him in his jail cell. Appel-
Vol. 78 — No. 13 — 4/28/2007
lant himself testified that he knew he had
killed his wife, but that he did not believe she
was really dead.
¶9 In the punishment stage of trial, the State
relied on the medical examiner’s testimony in
the guilt stage to show that Enriqueta’s death
was especially heinous, atrocious, or cruel. As
for its allegation that Appellant posed a continuing threat to society, the State referred to
guilt-stage evidence that Appellant had
assaulted a co-worker, to Appellant’s prior
instances of verbal and physical abuse toward
his wife, and to the circumstances of the murder itself. The State also presented evidence
that Appellant had incidents of combative
behavior since he had been in jail, and that
shortly after his arrest, he had tried to escape.
The State presented no victim impact testimony. In mitigation, the defense presented three
witnesses: Appellant’s father, mother, and sister. Each testified generally that Appellant had
been a good man in the past and asked the jury
to spare his life. The entire mitigation case
comprised less than fifteen pages of transcript.
DISCUSSION
A. COMPETENCY TO STAND TRIAL
¶10 In Proposition 1, Appellant alleges that
he has been subjected to criminal proceedings
while incompetent to assist in his own defense,
in violation of his right to due process of law as
guaranteed by the United States and Oklahoma constitutions. He claims that he was
denied procedural due process relating to the
issue of competency before trial, that he was
denied substantive due process by being
forced to go to trial while incompetent, and
that trial counsel was ineffective for failing to
adequately advance the competency issue
below. A summary of the relevant proceedings
is helpful.
¶11 The day after his arrest in mid-February
2002, Appellant was formally charged with
First Degree Murder. Counsel and an interpreter were appointed at State expense. In late
March 2002, appointed counsel filed an Application for Determination of Competency, and
the trial court committed Appellant to Eastern
State Hospital for evaluation. On April 9, 2002,
the district court received a report from hospital officials concluding that Appellant was
competent to stand trial. Meanwhile, Appellant’s family raised enough money to retain
counsel for Appellant, who formally entered
the case on April 12. On April 25, 2002,
retained counsel filed an Application for
Vol. 78 — No. 13 — 4/28/2007
Expert Services at State Expense, asserting that
while Appellant’s family had pooled resources
to hire counsel, they did not have funds to
retain “a private investigator, an interpreter, or
a psychiatrist.” The State filed a written objection, and at a hearing in May 2002, the district
court denied the request.
¶12 A post-examination competency hearing
was held May 30, 2002. Appellant, through
counsel, waived his right to have a jury determine his competency. Testimony was received
from Dr. Samina Christopher, the psychologist
who evaluated Appellant at Eastern State Hospital; from the officer that arrested Appellant
for the charged crime; and from Appellant
himself. Dr. Christopher testified that in her
opinion, Appellant was competent to understand the proceedings against him, even
though he reported having hallucinatory experiences where his wife would come to visit
with him. Dr. Christopher felt that these experiences were not atypical for persons in Appellant’s situation, and might be a normal part of
his bereavement process. Appellant testified
that he knew he had killed his wife, but maintained that she came to his cell to speak with
him. Appellant understood that the court was
to make the final decision as to his competency, but said he was ready for his attorneys to
stop toying with him and let him go home to
his wife and family. The arresting officer testified that Appellant had been able to recount
details of how and why he killed his wife at the
time of his arrest. The trial court found Appellant competent, based on Dr. Christopher’s
conclusions and the court’s own observations.
¶13 Between the competency hearing in May
2002 and the trial in February 2003, defense
counsel sought and received funds from the
trial court to hire an investigator and a psychiatrist in preparation for trial. Dr. Montero,
retained by the defense, evaluated Appellant
in October 2002. In November 2002, at the
State’s own request, Appellant was evaluated
again at Eastern State Hospital, by Dr. Terese
Hall. After reviewing the prior evaluations in
conjunction with their own, both experts
found Appellant to be presently competent.
Both Dr. Montero and Dr. Hall testified at trial.
After the jury’s verdict, defense counsel
moved for a new trial, and alternatively asked
the court to stay formal sentencing and
empanel a jury to determine whether Appellant was competent to be sentenced. These
requests were due in large part to Dr. Montero’s reversal of his opinion about Appellant’s
1107
competency after personally observing Appellant during the trial. Appellant was again evaluated by Dr. Hall, and a further competency
hearing was held, but the trial court ultimately
found no new reason to doubt Appellant’s
competency.
¶14 With these facts in mind, we turn to
Appellant’s claims that the trial-level competency proceedings denied him both substantive and procedural due process. Appellant
claims (1) that the trial court erred in finding
that he was not indigent for purposes of the
post-examination competency hearing and
refusing to provide funds for a defense expert
on the issue at that time; (2) that trial counsel
was ineffective for not challenging the court’s
denial of funds for that purpose; (3) that
Appellant was denied his right to expert assistance for the competency hearing; (4) that the
court erred in finding Appellant competent to
stand trial; (5) that Appellant was, in fact,
incompetent to stand trial, and defense counsel was ineffective for not challenging Appellant’s competency during the trial itself; (6)
that the trial court erred in finding Appellant
competent to be sentenced; and (7) that Appellant is presently incompetent to assist in his
appeal.
¶15 The first three sub-arguments depend on
Appellant’s assumption that, if he had been
found indigent, he was constitutionally entitled to state funds to conduct the very same
inquiry that was made under Oklahoma’s
statutory competency-evaluation procedure
(22 O.S. §§1175.1 et seq.).1 In support of these
assertions, Appellant relies on Ake v. Oklahoma,
470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985), which held that “[w]hen the defendant
is able to make an ex parte threshold showing
to the trial court that his sanity is likely to be a
significant factor in his defense ... the State
must, at a minimum, assure the defendant
access to a competent psychiatrist who will
conduct an appropriate examination and assist
in evaluation, preparation, and presentation of
the defense.” Id. at 82-83, 105 S.Ct. at 1096. We
are, however, unaware of any case law which
reads Ake to require what Appellant claims it
does. Indeed, in Ake the Supreme Court cautioned that “access to a competent psychiatrist
who will conduct an appropriate examination”
does not necessarily require that the defendant
be given the right to “choose a psychiatrist of
his personal liking or to receive funds to hire
his own.” Id. at 83, 105 S.Ct. at 1096. See also
Brown v. State, 1987 OK CR 181, ¶15, 743 P.2d
1108
133, 137 (an indigent defendant claiming a
need for expert assistance “is not entitled to
public funds to ‘shop around’ until he finds a
‘hired gun’ with a favorable opinion”).2 Under
Oklahoma’s competency evaluation procedure, doubts as to competency may be raised
by either party or by the court itself; the
experts called upon to assess the defendant’s
competency are experts appointed by the
court, not agents of the prosecution. The
Supreme Court has held that state-created
competency evaluation schemes such as Oklahoma’s satisfy due process concerns related to
the competency of an accused to stand trial. See
Drope v. Missouri, 420 U.S. 162, 173, 95 S.Ct. 896,
904, 43 L.Ed.2d 103 (1975). We find that Oklahoma’s statutory competency evaluation
scheme satisfied Appellant’s procedural due
process concerns in this case.
¶16 In any event, defense counsel did ultimately request and receive court funds to hire
his own psychiatrist. Dr. Montero was retained
to explore mental health issues, including but
not limited to competency, in anticipation of
trial. Thus, even if Ake did require that a psychiatric expert of the indigent defendant’s own
choosing be appointed to conduct a second
competency evaluation after state law had
already provided one, we find that Appellant
was provided such an expert. See Walker v.
Attorney General, 167 F.3d 1339, 1348 (10th Cir.
1999) (Ake errors are subject to harmless-error
analysis). A claim of ineffective assistance of
counsel requires the defendant to show not
only that counsel’s performance was professionally unreasonable, but that the performance actually prejudiced him. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674, 693 (1984). Because Oklahoma law had already provided Appellant
with a constitutionally acceptable competency
evaluation procedure at no charge, and
because defense counsel was later provided
funds to hire a psychiatrist who similarly concluded, before trial, that Appellant was competent, Appellant can show no prejudice resulting from the trial court’s initial failure to fund
a psychiatric defense expert.3
¶17 We now turn to whether the record supports the trial court’s conclusion that Appellant was competent to stand trial. We give substantial deference to the trial court’s conclusion
on this issue. See Short v. State, 1999 OK CR 15,
¶9, 980 P.2d 1081, 1090-91. A judicial determination of competency requires more than reading clinical reports. It involves assessing the
Vol. 78 — No. 13 — 4/28/2007
knowledge and credibility of relevant expert
witnesses, assessing the observations of lay
witnesses, and personally observing the defendant’s demeanor — all of which juries and trial
judges, charged with determining competency,
are better-equipped to handle than we are. At
the post-examination hearing, the trial court
found Appellant competent based on Dr.
Christopher’s evaluation, lay testimony
(including Appellant’s), and on the court’s
own observations of Appellant in prior proceedings. The court recognized that Appellant
exhibited some strange ideation, but deferred
to the expert’s conclusion that such behavior
was not all that unusual for someone in Appellant’s situation. The record supports the trial
court’s determination of competency, based on
the information available to it at that time.
¶18 Furthermore, Appellant was re-evaluated twice shortly before trial. Dr. Montero evaluated Appellant in October 2002. He reviewed
Dr. Christopher’s initial evaluation from six
months before and agreed that Appellant
presently met the criteria for competency to
stand trial. Dr. Hall, from Eastern State Hospital, who evaluated Appellant in late November
2002, agreed with these two previous evaluations and commented that while Appellant still
reported intermittent experiences of seeing
and hearing his wife, he admitted that he had
killed her out of anger and jealousy. Thus, the
information available at the time of trial, from
several experts, including one chosen by
Appellant, gave neither defense counsel nor
the court any material reason to believe that
Appellant’s competency was suddenly in
doubt. We therefore reject Appellant’s claim
that trial counsel was ineffective for failing to
challenge his competency during the trial
itself. Strickland, 466 U.S. at 687, 104 S.Ct. at
2064.
¶19 Without doubt, the record contains evidence that raises questions about Appellant’s
mental health. We are particularly troubled by
the fact that Appellant rejected several offers to
plead guilty in exchange for a sentence of life
without parole. At a hearing held in January
2003, just a few weeks before trial, the State
made its final offer; Appellant, speaking
through an interpreter, politely declined it,
admitting he had made “errors” but maintaining his innocence, asking for forgiveness, and
requesting that he be allowed to return home
to his wife and children. Other portions of the
record indicate that Appellant still exhibits
some delusional behavior.4 But as we have
Vol. 78 — No. 13 — 4/28/2007
noted, the trial court had a substantial basis for
concluding that Appellant was competent at
the time of trial. We need not evaluate Appellant’s claim regarding his competency to be
sentenced, as we find it necessary to modify
Appellant’s sentence (see discussion of Proposition 2 below). To the extent Proposition 1
challenges the procedural framework and evidentiary basis for finding Appellant competent
to stand trial, it is denied.5
B. SUFFICIENCY OF THE EVIDENCE TO
SUPPORT THE CONVICTION
¶20 In Proposition 3, Appellant contends
that the evidence presented at trial was insufficient to sustain a conviction for First Degree
Murder. He claims that, but for instructional
errors and the prosecutor’s misstatements
about the applicable law, the jury would have
convicted him of First Degree Manslaughter.
We disagree.
¶21 The State charged Appellant with premeditated murder, alleging that he cut his
wife’s throat with the specific intent to kill her.
Appellant did not deny that he killed his wife,
but claimed that he acted in a heat of passion,
without premeditation. The trial court used the
Uniform Jury Instructions relevant to both
First Degree (Premeditated) Murder and First
Degree (Heat of Passion) Manslaughter.
Appellant now claims that when a lesser related offense is actively pursued as an “affirmative defense,” the State’s burden of proof is
transformed. Appellant claims that before the
jury could find him guilty of premeditated
murder, it was required, under specific instructions, to first find that the State had disproved
his heat-of-passion theory beyond a reasonable
doubt. We have previously considered and
rejected Appellant’s characterization of the law
on this issue. Specifically in the context of premeditated murder and heat-of-passion
manslaughter, we have held that the Uniform
Instructions relevant to these two offenses,
when considered in conjunction with one
another, correctly state the law as to both.
Hogan v. State, 2006 OK CR 19, ¶¶37-44, 139
P.3d 907, 922-925; Black v. State, 2001 OK CR 5,
¶¶44-48, 21 P.3d 1047, 1065-67; McCormick v.
State, 1993 OK CR 6, ¶¶18-28, 845 P.2d 896, 899901. We continue to adhere to that position.
¶22 Appellant also complains that the prosecutor misstated the law applicable to his
defense, and the facts in support of that
defense. Appellant claimed at trial that he
killed his wife in an uncontrollable rage after
1109
she made a surprise admission of marital infidelity and insulted his masculinity. The prosecutor reminded the jury that insulting words
alone could not justify a homicide. This was an
entirely correct statement of the law. OUJI-CR
(2nd) No. 4-98; Washington v. State, 1999 OK CR
22, ¶13 & n. 4, 989 P.2d 960, 968 & n.4.6 The
prosecutor’s characterization of Appellant’s
defense as “dishonorable,” “cowardly,” and
even “dishonest” were all reasonable inferences based on the evidence. Appellant himself placed “honor” in issue by claiming that
an insult to his masculinity was particularly
egregious because of his Hispanic heritage.
The prosecutor was also free to cast doubt on
the “honesty” of Appellant’s defense by pointing to evidence that Appellant had, among
other things, placed a filet knife in his car
before the killing. Turrentine v. State, 1998 OK
CR 33, ¶63, 965 P.2d 955, 974-75.
¶25 First, Appellant complains that the trial
court erred by giving the jury a superseded
version of OUJI-CR (2nd) No. 10-27, dealing
with the manner in which the jury was to consider the charged offense (First Degree Murder) versus the lesser-offense theory advanced
by Appellant (First Degree Manslaughter). In
Graham v. State, 2001 OK CR 18, ¶7 & n.5, 27
P.3d 1026, 1028 & n.5, this Court modified
OUJI-CR (2nd) No. 10-27 to make it clear that a
jury is not required to unanimously acquit the
defendant on the charged offense before it can
consider his guilt on any lesser offense. Graham
was decided before Appellant’s trial.
C. FIRST-STAGE INSTRUCTIONS
¶26 Appellant did not bring Graham to the
trial court’s attention. The trial court should
instruct on the applicable law and use the Uniform Jury Instructions whenever possible;
however, a deviation from the Uniform
Instructions does not automatically result in
reversible error. Phillips v. State, 1999 OK CR
38, ¶73, 989 P.2d 1017, 1037-38. The fact that the
language of OUJI-CR (2nd) No. 10-27 was
modified in Graham does not help Appellant,
even though the modification was announced
prior to Appellant’s trial, because we have
never found this Uniform Instruction to be an
incorrect statement of the law. Relief was
required in Graham only because the prosecutor suggested that the jury must unanimously
acquit on the charged offense before it could
even consider the lesser offense, and the trial
court had omitted to give OUJI-CR (2nd) No.
10-27 at all. Graham, 2001 OK CR 18 at ¶¶3-6,
27 P.3d at 1027.7 We simply took the opportunity in Graham to reword the instruction in an
attempt to make it clearer. In this case, the trial
court gave the version of OUJI-CR (2nd) No.
10-27 as it existed before Graham, and unlike
the situation in Graham, none of the prosecutor’s statements cited by Appellant can be said
to have misstated the law on this point. We
find no plain error here. See Malaske v. State,
2004 OK CR 18, ¶14, 89 P.3d 1116, 1120 (trial
court did not err in using pre-Graham version
of OUJI-CR (2nd) No. 10-27).
¶24 In Proposition 4, Appellant advances
two complaints about the instructions given to
the jury in the first stage of trial. Because he
did not bring these complaints to the trial
court’s attention, we review only for plain
error. Torres v. State, 1998 OK CR 40, ¶43, 962
P.2d 3, 17. Recognizing trial counsel’s failure to
make these arguments, Appellant appends an
ineffective-assistance claim to this proposition
as well.
¶27 Appellant also claims error because the
jury was not expressly instructed that malice
aforethought cannot be presumed from the
mere act of taking a human life. We believe this
is adequately addressed by OUJI-CR (2nd) No.
4-63, which tells the jury that all external circumstances surrounding the homicide are relevant to whether it was committed with a
deliberate intent to take life. Williams v. State,
2001 OK CR 9, ¶¶34-38, 22 P.3d 702, 714. In
¶23 Finally, we turn to whether the evidence
was sufficient to support Appellant’s conviction. In doing so, we must consider the totality
of evidence presented to the jury in a light
most favorable to the State. Matthews v. State,
2002 OK CR 16, ¶35, 45 P.3d 907, 919-920. The
issue is not whether some other jury, or even
this Court, might have reached a different conclusion, but whether there was sufficient evidence to support the verdict actually reached.
Id.; Jackson v. Virginia, 443 U.S. 307, 318-19, 99
S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). We
find sufficient evidence to support the jury’s
conclusion that Appellant acted with an intent
to kill. Appellant’s history of jealousy, his conduct in the days preceding the homicide, his
scheme to get his wife to accompany him,
alone, after she had moved out, the peculiar
presence of a large knife in Appellant’s car, and
Appellant’s own statements, and the nature of
the wounds inflicted, all support the jury’s
conclusion that Appellant deliberately meant
to kill his wife. Harris v. State, 2004 OK CR 1,
¶¶44-45, 84 P.3d 731, 749. Proposition 3 is
denied.
1110
Vol. 78 — No. 13 — 4/28/2007
closing argument, the prosecutor made such
comments as, “You don’t grab a knife ... and
cut her across the throat without intending to
kill her. ... [I]ntent is formed then. ... How
could you run a knife across somebody’s
throat and not intend to kill them? ... You don’t
do that to somebody without inten[t] to kill.”
Appellant complains that without an explicit
reminder that intent cannot be presumed from
the fact of the killing itself, these comments
invited the jury to hold the State to a lower
burden in proving malice. We disagree. The
prosecutor’s comments simply asked the jury
to consider the external circumstances surrounding the killing, as OUJI-CR (2nd) No. 463 advises. The manner in which Appellant
used the knife is relevant to whether he intended to kill. Huitt v. State, 1977 OK CR 126, ¶19,
562 P.2d 873, 876. The instructions given were
correct statements of the law; the prosecutor’s
comments thereon were proper in context; and
because any objections on these issues would
properly have been overruled, defense counsel
was not derelict in failing to make them. Cruse
v. State, 2003 OK CR 8, ¶11, 67 P.3d 920, 923.
D. PRE-MORTEM PHOTOGRAPH OF THE
VICTIM
¶28 In Proposition 5, Appellant alleges he
was denied a fair trial when the State, in the
first stage of trial, introduced State’s Exhibit 30,
a photograph of the victim taken while she
was alive. The candid color photograph, taken
some seventeen years before on the couple’s
wedding day, shows Enriqueta smiling and
wearing her wedding dress. Appellant claims
this photograph was inflammatory and not relevant to any issue in the case. He concedes that
our Legislature had, by the time of this trial,
amended the Evidence Code to expressly permit such evidence, but he argues that the
amendment is unconstitutional. Appellant
objected to the photograph at the time it was
admitted, preserving this claim for full appellate review.
¶29 The Oklahoma Evidence Code takes a
liberal approach in favor of admissibility. All
relevant evidence is presumed to be admissible. 12 O.S.2001, §2402. Relevant evidence
should only be excluded if its probative value
is “substantially” outweighed by the danger of
“unfair” prejudice to the opposing party. 12
O.S.Supp.2002, §2403; see also Mayes v. State,
1994 OK CR 44, ¶77, 887 P.2d 1288, 1309-1310
(“In dealing with the relevancy of evidence, we
begin with the presumption that in determinVol. 78 — No. 13 — 4/28/2007
ing whether to admit such evidence, the trial
judge should lean in favor of admission”). In
2002, the Legislature amended §2403 of the
Evidence Code to provide that “[I]n a prosecution for any criminal homicide, an appropriate
photograph of the victim while alive shall be
admissible evidence when offered by the district attorney to show the general appearance
and condition of the victim while alive.”
¶30 We turn first to Appellant’s claim that
§2403, as amended, is unconstitutional. Initially, Appellant claims the amendment was a
political move to appease victims’ rights advocates. This may be true, yet Appellant offers no
authority suggesting that a statute’s constitutionality hinges on the politics behind it. Our
task is simply to consider the statutory language in light of other relevant statutory and
constitutional provisions. State v. Young, 1999
OK CR 14, ¶27, 989 P.2d 949, 955.
¶31 Appellant next claims that §2403 is
facially unconstitutional because it only permits prosecutors, not defendants, to offer photographs of a homicide victim. We disagree.
The statute does not expressly bar a defendant
from introducing such evidence, and we find
nothing in the more general provisions of the
Evidence Code which would prevent him from
doing just that, so long as the victim’s appearance is somehow relevant to the issues in the
case.8
¶32 Appellant goes on to assert that even if
§2403 is constitutional, it did not permit the
photograph at issue here. As we recently
pointed out in Coddington v. State, 2006 OK CR
34, ¶¶55-56, 142 P.3d 437, 452-53, and as Appellant himself concedes, §2403 does not categorically permit any pre-mortem photograph of
the homicide victim; the photograph must be
an “appropriate” one. This adjective serves as
a reminder that photographs which tend to
distract from, or needlessly embellish, basic
information about the victim may tip the scales
toward inadmissibility. The requirement that
such photographs be “appropriate” preserves
the trial court’s discretion in determining
admissibility. If the court finds that the photograph is not appropriate – i.e., that its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or
unfair and harmful surprise – then it should be
excluded. Section 2403, as amended, is not
immune to the overarching principles of
admissibility found in the Evidence Code.
1111
¶33 In this case, the prosecutor offered a single photograph of Enriqueta on the day she
married Appellant. The photograph was not
misleading; while the passage of seventeen
years certainly can affect one’s general appearance, the photograph was introduced through
the couple’s daughter Leticia, who testified
that her mother’s appearance had changed little since the photograph was taken. Our
review of the crime-scene photographs corroborates this assessment. We agree with the State
that while a photograph of a homicide victim
in her wedding dress might, in other contexts,
be an inappropriate evocation of sympathy, the
facts of this case cast the photograph in a substantially different light.9 Appellant and the
victim had been married some seventeen
years. Even in the State’s estimation, Appellant
killed his wife out of jealousy, believing that
she had been unfaithful to him. Appellant and
the victim had three children, two of whom
were placed in the difficult position of being
called as witnesses at trial. The jury also heard
evidence that after the crime, Appellant’s mental health deteriorated, and that even at the
time of trial, while he admitted killing his wife,
he still claimed to believe she was still alive
and loved and missed her very much. In short,
the photograph at issue did not unfairly evoke
sympathy for the victim so much as it underscored the tragic nature of this crime for all
involved. We cannot say that State’s Exhibit 30
unfairly prejudiced the jury against Appellant.
The trial court did not abuse its discretion in
admitting it, and Proposition 5 is denied.
E. APPELLANT’S RIGHT TO CONSULAR
ASSISTANCE
¶34 In Proposition 6, Appellant contends
that his right to consular assistance was violated. As noted, Appellant is a citizen of Mexico.
Both the United States and Mexico are signatories to the Vienna Convention on Consular
Relations, 21 U.S.T. 77, 100-101 (hereafter
VCCR). This multinational treaty includes provisions relating to contact between foreign
nationals in a signatory country (the “receiving
State”) and the consulate of their country of
origin (the “sending State”). The treaty provides that “consular officers shall be free to
communicate with nationals of the sending
State and to have access to them. Nationals of
the sending State shall have the same freedom
with respect to communication with and
access to consular officers of the sending
State.” VCCR, Article 36, ¶1(a). To implement
this provision, government officials of a receiv1112
ing State, upon arresting or otherwise detaining a foreign national from a sending State,
shall, “without delay,” inform the person of his
right to contact his consulate, and likewise
inform the person’s consulate that he has been
so detained. Id. at ¶1(b).
¶35 After his arrest but before he was interviewed, Appellant was advised by police (1)
that he had a right to remain silent and consult
with a lawyer, and (2) that as a citizen of Mexico, he had a right to request assistance from
the Mexican consulate. Speaking through an
interpreter, Appellant not only agreed to talk
to police without a lawyer present, but also
declined his right to contact the Mexican consulate. On appeal, Appellant concedes that he
was timely advised of his right to contact the
Mexican consulate, but claims that “other
state-sanctioned barriers” effectively denied
him the right to consular assistance. Appellant
complains that the government of Mexico was
not permitted to intervene in his case and participate in his defense.
¶36 Appellant’s argument is based on the
assumption that a governmental party to the
Vienna Convention on Consular Relations has
a unilateral right to participate in the criminal
prosecution its citizens in another signatory
country, even without the citizen’s consent.
Appellant offers no authority to support such
an assumption. To the contrary, the treaty
makes clear that consular assistance cannot be
forced on a foreign national: “[C]onsular officers shall refrain from taking action on behalf
of a national who is in prison, custody or
detention if he expressly opposes such action.”
VCCR, Article 36, ¶1(c). In fact, Mexico’s right
to unilaterally intervene in Appellant’s criminal proceeding is not squarely before us,
because it is Appellant, not Mexico, who is
making this claim, and Appellant himself lacks
standing to do so. Proposition 6 is therefore
denied. However, this does not end our discussion of Mexico’s efforts to participate in
Appellant’s defense. While the Vienna Convention did not give Mexico the unilateral
right to intervene in Appellant’s case, Mexico’s
repeated attempts to offer defense counsel
assistance before trial play an important role in
our disposition of Appellant’s ineffectivecounsel claim, which we turn to now.
F. INEFFECTIVE ASSISTANCE OF
COUNSEL
¶37 In Proposition 7, Appellant claims that
defense counsel rendered ineffective assistance
Vol. 78 — No. 13 — 4/28/2007
in the guilt stage of his trial by inviting the
prosecutor to develop evidence concerning
Appellant’s future dangerousness. In Proposition 2, he claims defense counsel rendered
ineffective assistance in the punishment stage
of the trial by failing to conduct a meaningful
investigation into potential mitigation evidence. Because both claims involve similar
legal principles, we review them together.
¶40 The State argued that Appellant’s prior
treatment of his wife supported the conclusion
that he intended to kill her. In turn, defense
counsel attempted to show that the homicide
was a sudden impassioned response, and used
Dr. Montero’s testimony about Appellant’s
psychological makeup — in essence, his character — to support that claim. By formally
placing Appellant’s character for non-violence
in issue, defense counsel opened the door to
inquiry about other acts which might bear on
this character trait, such as Appellant’s attempt
to escape from jail. 12 O.S.2001, §§2404(A)(1),
2405(B); Malicoat v. State, 2000 OK CR 1, ¶40,
992 P.2d 383, 403-04; Douglas v. State, 1997 OK
CR 79, ¶¶24-25, 951 P.2d 651, 663.
¶38 In the guilt stage of trial, the defense
called Dr. Montero, who had conducted a psychiatric evaluation of Appellant, to advance its
theory that Appellant acted in a heat of passion. Montero characterized Appellant’s
actions in killing his wife as inconsistent with
what Montero had concluded about Appellant’s personality. Defense counsel specifically
asked Montero whether, in his opinion, Appellant posed a “continuing threat as a violent
person”; Montero opined that he did not. On
cross-examination, the prosecutor further
developed this line of inquiry, asking Montero
to reflect on his assessment in light of (1) prior
testimony that Appellant had been abusive
toward his wife in the past, and (2) the fact that
Appellant had attempted to escape from the
county jail — a fact that had not yet been established through testimony. Then, in rebuttal, the
prosecutor called Dr. Terese Hall, a psychologist from Eastern State Hospital where Appellant had undergone a competency evaluation,
to testify that, in her opinion, Appellant posed
a “moderate” risk of future violence.
¶41 We tend to agree that defense counsel
needlessly used the term “continuing threat”
in questioning Dr. Montero, and that because
the prosecutor had made his point in crossexamination of this witness, rebuttal testimony
about Appellant’s risk of future violence was
not particularly relevant to the issue of Appellant’s guilt. Nevertheless, we cannot say that
this temporary shift in focus, from past conduct to future dangerousness, undermined
confidence in the outcome of the guilt stage of
the trial. The predictions were based on evidence that was itself relevant to the guilt-innocence determination. Whether or not counsel’s
tactic was professionally unreasonable, we
cannot say it was likely to have caused prejudice. Strickland, 466 U.S. at 687, 104 S.Ct. at
2064. Proposition 7 is denied.
¶39 Appellant claims that the issue of his
future dangerousness had no place in the guilt
stage of the trial, and that trial counsel was
ineffective by opening the door to the subject
on direct examination of Dr. Montero. We
agree that a defendant’s future dangerousness
is not, strictly speaking, germane to whether
the defendant is guilty of first degree murder;
it becomes relevant only if the trial progresses
to a capital sentencing stage and the State has
alleged the “continuing threat” aggravating
circumstance in support of the death penalty.
21 O.S.2001, §701.12(7). However, the “continuing threat” inquiry necessarily invites assessment of the defendant’s past conduct, and this
same conduct may well be relevant to issues
raised in the guilt stage of a capital murder
trial. See, e.g., Harris v. State, 2004 OK CR 1, ¶33,
84 P.3d 731, 746 (psychological evidence relevant to continuing threat aggravator was properly admitted in guilt stage to rebut a claim of
diminished capacity). That was the case here.10
¶42 In Proposition 2, Appellant alleges that
his trial counsel failed to conduct a meaningful
investigation for potential evidence in mitigation of a death sentence, depriving him of his
right to effective assistance of counsel and to a
fair sentencing proceeding. Based on the supplementary materials Appellant filed in conjunction with this claim, we remanded the
matter to the district court for an evidentiary
hearing. See Rule 3.11, Rules of the Oklahoma
Court of Criminal Appeals, 22 O.S. Ch. 18, App.
(2007). The hearing was held January 17-20,
2006, and a record of that hearing was submitted to this Court for review. The trial court
filed its findings of fact and conclusions of law
in this Court on May 11, 2006. The parties also
filed supplemental briefs based on the evidence adduced at the hearing. In addition, the
Government of the United Mexican States
(hereafter “Mexico”) was granted leave of
Court to file an amicus brief based on the evidence presented at the hearing. Our review of
Vol. 78 — No. 13 — 4/28/2007
1113
this proposition encompasses all of these materials, as well as the trial record itself.11
¶43 We begin by reiterating the general standards for reviewing a claim of ineffective assistance of counsel. Appellant must demonstrate
that trial counsel’s performance was so deficient as to have rendered Appellant, in essence,
without counsel, in violation of the Sixth
Amendment; we assess counsel’s performance
for reasonableness in light of prevailing professional norms. Appellant must also demonstrate that the allegedly deficient performance
caused prejudice; there must be a reasonable
probability that the actions in question undermine confidence in the outcome of the proceedings. We begin with the presumption that
counsel’s conduct was reasonable, and we
accord great deference to questions of trial
strategy, recognizing that there are many ways
to handle any given case, and that counsel
must make many strategic decisions along the
way. Strickland, 466 U.S. at 687, 104 S.Ct. at
2064; Browning v. State, 2006 OK CR 8, ¶14, 134
P.3d 816, 830-31.
¶44 In recent years, the Supreme Court has
issued a number of decisions applying the
Strickland standards to the unique responsibilities in preparing a capital mitigation case. In
Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000), the Court vacated the
defendant’s death sentence after finding that
trial counsel’s failure to fully investigate available mitigation evidence constituted deficient
performance that could have affected the sentencing proceeding. In Wiggins v. Smith, 539
U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003),
the Court again vacated a death sentence
where trial counsel’s mitigation investigation
proved wanting. And in Rompilla v. Beard, 545
U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005),
the Court vacated the defendant’s death sentence where trial counsel had neglected to
review the prosecutor’s file, which contained
information leading to valuable sources of
mitigation evidence.
¶45 Likewise, this Court has recognized the
critical importance of mitigation evidence in a
capital case. “It is beyond dispute that mitigating evidence is critical to the sentencer in a
capital case.” Warner v. State, 2001 OK CR 11,
¶15, 29 P.3d 569, 575 (citations omitted). In Garrison v. State, 2004 OK CR 35, 103 P.3d 590, we
vacated the defendant’s death sentence based
on trial counsel’s failure to present such evidence. We found that while trial counsel wisely attempted to attack the relatively weak evi1114
dence of the defendant’s guilt, nevertheless,
counsel should also have anticipated the “very
real possibility” that the defendant would be
convicted, and should have realized that if he
were, the “next best hope” was to work for a
sentence less than death by focusing on aspects
of the defendant’s life history which might
explain why he committed the crime. Id. at
¶167, 103 P.3d at 619.
¶46 Strickland requires that a claim of ineffective counsel be assessed in light of the particular circumstances of the individual case.
Williams, Wiggins, and Rompilla each applied
the Strickland standard to a different set of
facts. Yet those cases, and our own cases, share
the acknowledgment that mitigation evidence
can, quite literally, make the difference
between life and death in a capital case. While
we give strong deference to the district court’s
findings of fact and conclusions of law following the evidentiary hearing on trial counsel’s
performance, the ultimate issue of whether
counsel was ineffective is one for this Court to
determine. Rule 3.11(B)(3)(b)(iv), Rules of the
Oklahoma Court of Criminal Appeals, 22 O.S., Ch.
18, App. (2006). With these principles in mind,
we now address whether trial counsel’s preparation for the punishment stage can be considered constitutionally acceptable.
¶47 Lead defense counsel was retained by
Appellant’s family in April 2002. Trial was
held in early February 2003. Counsel hired an
associate to assist in the preparation of motions
and the punishment stage of the trial. That
associate left the firm in December 2002, about
a month before trial. Lead counsel hired a second associate in January 2003, again primarily
to work on the punishment-stage issues. The
record shows that while lead counsel had very
little capital experience, the associates charged
with preparing for the capital sentencing stage
had even less.12
¶48 Even though Appellant declined an invitation to contact the Mexican consulate on his
arrest, consular officials were notified about
his case, and they enlisted the help of the Mexican Capital Legal Assistance Program
(MCLAP) to communicate with defense counsel.13 Attorneys working on Mexico’s behalf
were in contact with defense counsel in the
summer of 2002, offering, among other things,
sample motions to seek court funds for experts
and other services, including a mitigation
investigation.14
Vol. 78 — No. 13 — 4/28/2007
¶49 Despite the voluminous evidentiary
hearing, and testimony from all three defense
attorneys involved in the case, the actual
defense strategy with regard to mitigation
remains elusive to us. Several conflicting
explanations were offered: (1) that defense
counsel did not know the court could be petitioned to provide additional funds for mitigation investigation; (2) that counsel knew additional funds could be applied for, but did not
believe the court would approve them; and (3)
that no additional funds were sought because
counsel believed their mitigation work was
thorough and sound. Each of these explanations is belied by the record. As noted, counsel
for Mexico had forwarded caselaw and other
information to trial counsel on how to seek
court funds for mitigation assistance. At a
hearing just days before trial, where counsel
for Mexico appeared pro hac vice and expressed
concern about the course of the second-stage
preparation, the court told defense counsel
that it would be very accommodating to any
properly submitted request for additional
funds. None was ever filed. No substantive
mitigation work was done until a week or so
before trial, when new associate counsel, hired
just a few weeks before, spoke with a few family members for an hour or two about testifying in the punishment stage.15 As noted earlier,
the testimony of the three family members
who testified in the punishment stage comprised less than fifteen pages of trial transcript.
With little elaboration, these witnesses told the
jurors that Appellant had been a good person,
and asked them to spare his life.
¶50 There is no doubt that this case presented several challenges from the very beginning.
Appellant had spent the first thirty years of his
life in a small town in Mexico. He spoke very
little English. Appellant’s interrogation by
police required an interpreter. Lead defense
counsel spoke no Spanish. His first associate,
who left the firm about a month before trial,
spoke no Spanish. The defense investigator
spoke no Spanish. The second associate, tasked
with preparing the mitigation case less than a
month before trial, spoke some Spanish, but an
interpreter was still necessary. While a certified
interpreter was funded by the trial court and
used at the proceedings, at other times counsel
“made do” with such unlikely interpreters as
the brother of the murder victim and Appellant’s twelve-year-old nephew. Regardless of
how proficient these persons might have been
in both languages, whether they were competent to relate matters of legal significance, and
Vol. 78 — No. 13 — 4/28/2007
whether they did in fact communicate the true
nature of the proceedings to Appellant effectively, are issues of considerable concern.16
¶51 There were also logistical challenges
which bore directly on investigating and presenting a proper mitigation case. Practically
anyone who could offer insight into Appellant’s past lived in Mexico. Proficiency in
Spanish was essential, not just for interviewing
potential witnesses, but for reviewing school,
medical, and other records. Indeed, these challenges were apparent at the evidentiary hearing. Immigration paperwork caused the hearing to be delayed. There were some translation
difficulties at the hearing itself.17 Yet, these
challenges were overcome.18 Defense counsel
has a duty to take all necessary steps to ensure
that available mitigating evidence is presented.
See Warner, 2001 OK CR 11 at ¶16, 29 P.3d at
575 (defense counsel ineffective for failing to
follow procedure to request a continuance for
purposes of securing attendance of mitigation
witness). Had trial counsel diligently formed
and implemented a mitigation strategy earlier
in the case, these challenges would have been
apparent, and could have been met by seeking
funds from the court and specifying why they
were necessary.
¶52 At the evidentiary hearing, Appellant
presented a number of witnesses who knew
him before he took his family to the United
States. Many of them offered unique and moving vignettes about Appellant’s good character; many of them also knew the victim and
had a favorable opinion of her as well.19 Some
of these witnesses made substantial sacrifices
to attend the evidentiary hearing. The local
Catholic priest, who had known Appellant
since he was a child, was 62 years of age, partially blind, and in poor health; yet he testified
at the hearing and offered to return to the United States as often as necessary to speak on
Appellant’s behalf.20
¶53 One important purpose of mitigation
evidence is to humanize the defendant in the
eyes of the jury and, if possible, to explain
what might have driven him to commit the
crime. See Mayes v. Gibson, 210 F.3d 1284, 1288
(10th Cir. 2000). We find the Supreme Court’s
analysis in Wiggins particularly relevant here.
In Wiggins, defense counsel’s mitigation investigation consisted of reviewing a psychological
report, a presentence report, and a report from
a social-services agency. The Court faulted
counsel for “abandon[ing] their investigation”
after having acquired “only rudimentary
1115
knowledge of [the defendant’s] history from a
narrow set of sources.” Wiggins, 539 U.S. at
524-25, 123 S.Ct. at 2537. In fact, the Court
characterized counsel’s failure to investigate as
resulting more from inattention than anything
else. Id. at 526, 123 S.Ct. at 2537. Under the circumstances, the Court found that a broader
and deeper investigation into collateral
sources of information about the defendant’s
background would have led to evidence which
could have affected the sentencing proceeding.
¶54 Counsel does not have an obligation to
introduce any and all evidence that might conceivably be considered mitigating. Wiggins,
539 U.S. at 533, 123 S.Ct. at 2541; Lott v. State,
2004 OK CR 27, ¶163, 98 P.3d 318, 357. But
counsel’s decisions about the nature and quantity of mitigating evidence must be based on
reasonable professional judgment, which
requires experience, training, and some basic
research into what evidence is available and
how it might make a difference. We simply
cannot discern any real, coherent mitigation
strategy in this case. Even if counsel’s brief,
eleventh-hour discussion with Appellant’s
parents and sister about testifying in the punishment stage could be deemed sufficient witness preparation, it surely does not begin to
approach a true mitigation investigation.
Counsel were untrained in what to look for
and how to go about looking for it. Their
assessments of the situation were often inconsistent with each other, and at times internally
inconsistent as well. The amount of deference
given to counsel’s strategic decisions depends
on the amount of investigation that went into
them. Strickland, 466 U.S. at 690-91, 104 S.Ct. at
2066. We find trial counsel’s approach to the
mitigation aspect of this case constitutionally
unacceptable.
¶55 We must now consider whether counsel’s failure to investigate, develop, and present an acceptable mitigation case was prejudicial to Appellant. The trial court agreed with
trial counsel’s opinion that additional mitigating evidence would only have been cumulative to that which had been presented at trial.
We believe this conclusion overlooks the qualitative difference between having a family
member generally ask the jury to spare the life
of the defendant, and having third parties offer
the jury more objective and specific examples of
why the defendant’s life should be spared.
Effective capital mitigation requires at least
looking for more than a “few naked pleas for
mercy.” See Rompilla, 545 U.S. at 393, 125 S.Ct.
1116
at 2469. Jurors may well understand that a
defendant’s mother will almost always extol
the virtues of her son; but they may give different treatment, and perhaps greater weight,
to the testimony of less biased witnesses which
illuminates the man whose life is in their
hands.
¶56 At the hearing, lead defense counsel also
suggested that belaboring the mitigation testimony might have “bored” the jury and exacerbated some sort of latent racial animosity.
These assessments are simply not supported
by the record. We conclude that the stories of
Appellant growing up and doing good things
in his rural Mexican community might well
have resonated with citizens of a rural Oklahoma county. In Garrison, 2004 OK CR 35,
¶167, 103 P.3d at 619-620, we found that evidence of the defendant’s “horrendous past,”
which trial counsel failed to present, could
have moved at least one juror to hold out in
favor of a sentence less than death. Most of the
mitigating evidence counsel failed to present
in this case was of a different nature, as it highlighted positive aspects of Appellant’s character and background, but it was powerfully
mitigating nonetheless.
¶57 This case may fairly be called a “second
stage” case. The fact that Appellant killed his
wife was undisputed. The evidence of a design
to effect death was straightforward and considerable, and the legal validity of the “heat of
passion” defense was tenuous. The manner of
death was visually gruesome. The only real
question appeared to be what punishment was
appropriate. Most of the evidence supporting
one aggravating circumstance (whether
Appellant constituted a continuing threat to
society), and all of the evidence supporting the
second (whether the murder was especially
heinous, atrocious, or cruel), was presented in
the guilt stage of the trial.
¶58 An aggressive mitigation effort, initiated
early in the case, would not only have humanized Appellant in the eyes of the jurors, but
might also have helped explain his conduct. To
give one example, the State characterized
Appellant as an abusive monster who was
unreasonably jealous and controlling over his
wife. The defense did little to alter this picture.
Yet testimony adduced at the evidentiary hearing showed that, by all accounts, Appellant’s
personality changed after he moved to the
United States. He became more serious, shy,
and withdrawn. There was also testimony that
when family from Mexico came to visit in 2001,
Vol. 78 — No. 13 — 4/28/2007
Appellant confided to them that Enriqueta had
been unfaithful, and gave some details about
having confronted her on the issue. Had
defense counsel conducted a proper investigation, this evidence would have been relevant to
show that Appellant’s jealousy in the months
leading up to the homicide might not have
been unfounded, and that Appellant’s marital
problems may have had a marked effect on his
mental health.21 Even Dr. Hall, who evaluated
Appellant for competency at the State’s
request before trial, pointed out in her report
that additional information about Appellant’s
background would be helpful to more fully
assess his mental health.
¶59 Trial counsel’s efforts to challenge his
client’s competency, and to seek court funds
for the employment of a psychiatric expert for
trial, were commendable. But the prospect
that, at some point, the jury might be deciding
whether Appellant should live or die was one
that demanded attention from the beginning.
There was undisputed testimony at the evidentiary hearing that at one point well into
their deliberations, the jury was evenly split on
whether to impose the death penalty. At the
evidentiary hearing, defense counsel pointed
to this fact as a sign that the mitigation strategy was successful. We view it as strongly suggesting how outcome-determinative a real
mitigation investigation might have been.
¶60 At the evidentiary hearing, there was
much discussion over whether a proper capital
defense strategy necessarily required the services of a so-called “mitigation specialist,” such
as the ones employed on Appellant’s direct
appeal. We believe the real issue is whether
defense counsel understands what kind of mitigation evidence can make a difference, what
kind of mitigation evidence is available, and
whether counsel makes reasonable efforts to
obtain it. We agree, in principle, with the trial
court’s conclusion that “any attorney, investigator, social worker, mental health professional, or other person is capable of obtaining such
information so long as they are actively looking for
it” (emphasis ours). Here, however, counsel
was not actively taking reasonable steps to
assemble a mitigation case. We reject the trial
court’s suggestion that it was the responsibility of Appellant and his family to understand
the nature of mitigation on their own, and to
bring relevant evidence to defense counsel’s
doorstep.22 In this case, counsel simply did not
devote the efforts which have been recognized,
Vol. 78 — No. 13 — 4/28/2007
by the Supreme Court and this Court, as likely
to make a difference between life and death.23
¶61 Our decision today does not set a “magic
number” of witnesses to be called in mitigation
of the death sentence, or number of persons to
be interviewed for such purpose. It does not
make effective capital representation dependent upon the employment of any particular
type of specialist, or presentation of any particular type or amount of testimony. We simply
find that some of the evidence presented at the
evidentiary hearing — evidence which trial
counsel admitted he was completely unaware
of — was of such character as to undermine
confidence in the death sentence imposed, and
that counsel’s choice not to even pursue this
line of mitigation evidence was professionally
unreasonable under the circumstances.
¶62 Generally, prejudicial error in the punishment stage of a capital trial would warrant
vacating the death sentence and remanding to
the district court for resentencing. Under the
particular circumstances of this case, however,
we find that a modification of sentence is more
appropriate. As noted above, the evidence supporting one of the two aggravating circumstances (continuing threat to society) was
weak. Appellant had no known criminal
record. Evidence of Appellant’s mental illness
was considerable, and tended to explain what
few instances of violent conduct the State was
able to muster. Appellant’s mental illness may
also have played a part in his repeated rejection of the State’s plea offer. A substantial
amount of compelling mitigation evidence was
presented at the evidentiary hearing, where it
was subjected to vigorous adversarial testing.
All of the mitigating evidence, viewed together, clearly outweighed the evidence supporting
the aggravating circumstances. Under these
unique circumstances, and in the interests of
justice, we find that Appellant’s sentence
should be MODIFIED to life imprisonment
without the possibility of parole. 22 O.S.2001,
§1066; 21 O.S.2001, §701.13; Ullery v. State, 1999
OK CR 36, ¶¶44-46, 988 P.2d 332, 352-53;
Mooney v. State, 1999 OK CR 34, ¶¶57-58, 990
P.2d 875, 891; Washington v. State, 1999 OK CR
22, ¶¶49-64, 989 P.2d 960, 975-980; Cudjo v.
State, 1996 OK CR 43, ¶¶27-32, 925 P.2d 895,
900-02; Malone v. State, 1994 OK CR 43, ¶¶4041, 876 P.2d 707, 718-19; Livingston v. State, 1990
OK CR 40, ¶¶10-11, 16, 795 P.2d 1055, 1058-59.
Appellant’s other complaints relating to the
sentencing phase of the trial are rendered moot
or otherwise denied.24
1117
DECISION
¶63 The judgment of the district court is
AFFIRMED. The sentence of death is MODIFIED to LIFE IMPRISONMENT WITHOUT
POSSIBILITY OF PAROLE.
AN APPEAL FROM THE DISTRICT COURT
OF GRADY COUNTY
THE HONORABLE RICHARD G.
VAN DYCK, DISTRICT JUDGE
Michael Arnett
Norman Hollingsworth
Attorneys at Law
3133 N.W. 63rd Street
Bret Burns
Jason Glidewell
Assistant District Attorneys
Grady County Courthouse
Chickasha, OK 73018
Michael D. Morehead
Sandra Mulhair Cinnamon
P.O. Box 926
Norman, OK 73070
Attorneys for Appellant,
Preston Saul Draper
313 N.E. 21st St.
OPINION BY C. JOHNSON, V.P.J.
Lumpkin, P.J.; Concurs in Results: Chapel, J.;
Concurs in Results: A. Johnson, J.; Concurs:
Lewis, J.; Concurs in Part/Dissents in Part
1. Oklahoma’s statutory competency-evaluation scheme may be
summarized as follows. The question of competency may be raised by
the prosecutor, the defendant, defense counsel, or by the court sua
sponte. Upon the filing of an application for determination of competency, the court shall hold a hearing to examine the application and
determine if sufficient facts are alleged to create a doubt about the
defendant’s competency. If the court finds such a doubt, the defendant
is ordered to be examined by appropriate professionals. These professionals then submit a report, answering five questions: whether the
defendant is able to understand the nature of the charges; whether he
is able to assist his counsel; whether the defendant, if found incompetent, could regain competency at some reasonable time in the future;
whether the defendant is mentally ill or in need of treatment as those
terms are defined by law; and whether the defendant, if released,
would likely pose a significant threat to himself or others. Once this
report is submitted, a post-examination competency hearing is held; at
the hearing, evidence regarding competency is presented, and the
1118
judge, or jury if requested by the defense, decides whether the defendant is competent to stand trial. See 22 O.S. §§1175.1 et seq.; Allen v.
Oklahoma, 1998 OK CR 25, ¶¶2-4, 956 P.2d 918, 919.
2. Accord Dirickson v. State, 953 S.W.2d 55, 57 (Ark. 1997) (“Stated
simply, the State is not required to pay for a defendant to shop from
doctor to doctor until he finds one who will declare him incompetent
to proceed with his trial. ... In the present case, appellant was examined at the state hospital, and, thus, the requirements under Ake were
satisfied”).
3. See also Allen v. Mullin, 368 F.3d 1220 (10th Cir. 2004) (no Ake
error with regard to expert assistance on competency, where trial court
appointed several experts at defense counsel’s request after the defendant had already been evaluated pursuant to Oklahoma’s competency-evaluation statutes, and the defense expert specifically charged
with assessing the defendant’s competency subsequently agreed with
the initial finding of competency); cf. Wallace v. State, 1997 OK CR 18,
¶11 & n. 3, 935 P.2d 366, 370-71 & n. 3 (any error in failure to appoint
defense expert at a particular point in the proceedings was harmless,
where such expert was appointed at a later time).
4. During one post-trial interview, Appellant reported that he had
not “seen” his wife since before his trial. However, he claimed that she
still talked to him through the jail intercom system.
5. We reject Appellant’s claim that his alleged current incompetency necessarily affects the validity of these appellate proceedings. Fisher v. State, 1992 OK CR 79, ¶¶16-17, 845 P.2d 1272, 1277.
6. Appellant incorrectly reads Lewis v. State, 1998 OK CR 24, ¶16,
970 P.2d 1158, 1166, to hold that a wife’s acts of infidelity can constitute
adequate provocation for killing her, if the husband’s homicidal rage
occurs close in time to his learning of the infidelity. In Lewis, the defendant killed his wife, and the trial court refused to instruct on heat-ofpassion manslaughter; the court found that because the defendant
became aware of the infidelity some time before the homicide, he had
failed to show that he lacked a reasonable opportunity for his anger to
cool, which is another requirement of heat-of-passion manslaughter.
See OUJI-CR (2nd) No. 4-97. Having found the defendant had a reasonable opportunity for his anger to cool, the trial court had no need
to pass on whether the provocation was “adequate.” This Court found
no error in the trial court’s determination on this point, and did not
suggest that a mere suspicion of marital infidelity — or even a confession of same — would constitute “adequate provocation” for heat-ofpassion manslaughter.
7. Before Graham, OUJI-CR (2nd) No. 10-27 read:
If you have a reasonable doubt as to which offense the defendant
may be guilty of, you may find him/her guilty only of the lesser offense. If you have a reasonable doubt as to the guilt of the
defendant on all such offenses, you must find him/her not
guilty of any crime.
Graham modified the instruction thus:
If you are unable to agree unanimously that [defendant’s name]
is guilty of the charged offense, you may proceed to consider a
lesser included offense upon which evidence has been presented. You are not required to determine unanimously that the
defendant is not guilty of the crime charged before you may consider a lesser included offense. However, you must unanimously agree that the defendant is guilty of a particular criminal
offense before returning a verdict of guilty on that offense.
This instruction has since been incorporated into OUJI-CR (2nd) No.
10-24.
8. As for any potential abuses of the statute, the fanciful scenarios
Appellant envisions are well beyond the plain language thereof, and
in any event they did not occur in this trial. Appellant speculates, for
example, that in the future, prosecutors might attempt to offer photographs of the headstone at the victim’s grave, or deliver closing arguments from the cemetery. Neither of these scenarios is even remotely
contemplated by §2403.
9. In responding to defense counsel’s objection, the prosecutor
claimed that he had asked Enriqueta’s family to supply several photographs of her, but that they had defaced or destroyed many photographs which also included Appellant as a subject, and that the photograph offered was the least prejudicial of the lot. Defense counsel
did not challenge this assertion or ask to view the other photographs.
10. Similarly, in a capital murder trial, evidence about the manner
of death is almost invariably presented in the guilt stage, even though
it may be equally relevant to the capital-sentencing determination of
whether the murder was “especially heinous, atrocious, or cruel.” See
Malicoat v. State, 2000 OK CR 1, ¶42, 992 P.2d 383, 404. That was the
case here as well.
11. Appellant’s motion to supplement the record of the evidentiary
hearing with a corrected copy of an exhibit admitted therein is
GRANTED.
12. Lead counsel testified that he had been involved in one capital
case in the past. The first associate he employed to assist him had no
capital experience; his successor had “third chaired” one capital murder trial as an intern.
Vol. 78 — No. 13 — 4/28/2007
13. Mexico has a long history of providing financial and legal support to its nationals charged with capital crimes in the United States.
The Mexican Capital Legal Assistance Program was established to
provide experienced legal, forensic, and financial support to defense
counsel around the country who represent Mexican nationals charged
with capital crimes.
14. In October 2002, trial counsel applied for and received $5000 to
hire a psychiatrist and an investigator, and to pay for a transcript of the
preliminary hearing. However, the psychiatrist’s principal role at trial
was to support the “heat of passion” defense, and the investigator’s
primary task was to investigate first-stage issues.
15. At the evidentiary hearing, lead defense counsel testified that
he also anticipated calling Appellant’s son to testify in mitigation, and
that it was a “real surprise” when he backed out at the last minute,
allegedly under pressure from the victim’s family.
16. The record suggests that Appellant’s family instructed the
nephew not to alarm Appellant with the information he was supposed
to relay. In addition, at the evidentiary hearing, lead defense counsel
testified that due to the language barrier, it was “very difficult to discuss with [Appellant] the plea offer extended by the State and the reasons why we believed that he should accept the offer.”
17. After the hearing, appellate defense counsel moved this Court
to require the court reporter’s tapes of the hearing to be re-translated,
alleging several examples of inaccurate translation from the certified
interpreter employed at the hearing. Attached to that motion was a
copy of an affidavit attesting to inaccuracies in the translation. We find
the testimony as currently transcribed, read in context, is not so confusing as to require re-translation. Appellant’s Motion to Substitute
Original Affidavit for Faxed Copy is GRANTED. His Motion to Have
Court Reporter’s Tapes of Evidentiary Hearing Re-Transcribed is
DENIED.
18. We commend the district court, and counsel for both parties,
for clearing these hurdles and presenting a very thorough examination
of the issues on remand.
19. To cite but a few examples, one witness, Father Felix Pinoncely, officiated at the wedding of Appellant and Enriqueta, and had
known Appellant through the local Catholic church since Appellant
was a child. He testified that as a young man, Appellant volunteered
to help on several church projects. Another witness, Jacobo Schellemberg, is a farmer in a Mennonite community near Appellant’s home
town. Schellemberg testified that Appellant worked for him for about
ten years before moving to the United States. He recalled that Enriqueta had medical problems, that Appellant was constantly worried
about her, and that he dutifully took off work to take her to the doctor.
Schellemberg also spoke of a close friendship with Appellant that transcended their different ethnic and cultural backgrounds. Testimony
was also received that on one occasion, Appellant had donated blood
to a Mennonite man, which said as much about the Mennonites’
esteem for Appellant as it did about Appellant’s willingness to help
others. Yet another witness, Javier Gomez, a teacher and long-time
friend of Appellant’s, testified that Appellant was the godfather to his
son. When Gomez’s son died unexpectedly, Appellant borrowed
money to buy the boy’s casket and asked the Mennonite farmers to
lend him a truck to carry it in. Appellant allegedly refused to let
Gomez pay him back for these efforts. Gomez also recalled that when
Appellant began courting Enriqueta, he asked Gomez to assist him in
serenading her; the two men built a bonfire next to her parents’ home
and sang to her.
20. We find it ironic that before Appellant’s family retained counsel for him, the trial court had appointed the Capital Trial Division of
the Oklahoma Indigent Defense System (OIDS) to this case, and that
OIDS, later appointed to represent Appellant on direct appeal, was
able to marshal substantial mitigating evidence. This was accomplished with invaluable help from attorneys and mitigation specialists
working on behalf of the government of Mexico — the same professionals who had repeatedly offered assistance to trial counsel, and
who testified that a thorough mitigation investigation might have
been available before trial, had trial counsel first sought funds from
the district court to conduct it.
21. At trial, the couple’s daughter, called by the State to describe
Appellant’s jealous and controlling attitude toward his wife, testified
that on one occasion he interpreted a cat prowling outside the home as
one of Enriqueta’s boyfriends calling for her.
22. Cf. Smith v. State, 2006 OK CR 38, ¶¶38-42, 144 P.3d 159 (trial
counsel was deficient in not explaining critical need for psychological
expert, not seeking court funds for such services if defendant could
not pay for them, and instead accepting client’s attitude of resignation
that such services would not help her anyway).
23. We find the brief testimony of Appellant’s sister, in the punishment stage, particularly telling:
“If you would know where we live, ask the people, they would
tell you how he is. ... I ask you please, if you knew my brother, if
you would ask the people from my town about by brother, the
whole town is saddened because of my brother, and everybody
knows him.”
Vol. 78 — No. 13 — 4/28/2007
The jury deciding Appellant’s fate might well have wondered: If what
Appellant’s sister said was true, then why were none of these people
called to testify?
24. In Proposition 11, Appellant complains of certain comments
made by the prosecutor in second-stage closing argument, comments
which were not so outrageous as to require discussion here. Although
the title of Proposition 8 purports to challenge the constitutionality of
the “heinous, atrocious, or cruel” aggravator, the argument itself deals
with whether the jury was properly instructed on the meaning of those
terms. As to the title of this proposition, we have rejected constitutional vagueness and overbreadth challenges to this aggravator many
times before. See Murphy v. State, 2002 OK CR 24, ¶¶36-37, 47 P.3d 876,
883-84. The substance of the argument is mooted by our disposition of
this case. In part of Proposition 9, Appellant claims that due to instruction error, the jury was prevented from considering guilt-stage evidence as it might pertain to the aggravating and mitigating factors at
issue in the punishment stage; again, this argument is mooted by the
modification of sentence. Appellant’s constitutional challenge to the
“continuing threat” aggravator, in part of Proposition 10, is one we
have rejected many times in the past. Murphy, 2002 OK CR 24 at ¶¶3739, 47 P.3d at 884. Propositions 9 and 10 also challenge the sufficiency
of the evidence to support the two aggravating circumstances alleged
by the State and found by the jury. While the jury’s findings on these
issues are now moot, the trial court’s preliminary decision to submit
them to a jury was sufficiently supported by the evidence. Appellant’s
cumulative-error argument in Proposition 12 is also moot to the extent
it bears on the sentence imposed; we find no accumulation of error
undermines confidence in the jury’s verdict of guilt. Finally, Appellant’s pleadings filed December 4 and 8, 2006, relating to the applicability of 21 O.S. §13.1 and Anderson v. State, 2006 OK CR 6, 130 P.3d 273,
are DENIED as untimely. Rule 3.4(F), Rules of the Oklahoma Court of
Criminal Appeals, Title 22 O.S., Ch. 18, App. (2006).
CHAPEL, JUDGE, CONCUR IN RESULTS:
¶1 I concur in affirming the conviction in this
case, and I concur in modifying the sentence to
life without parole. In fact, with the exception
of Proposition III, I otherwise agree with the
analysis of and would join the majority’s wellreasoned and thoughtful Opinion. I cannot,
however, agree with the Opinion’s analysis of
Proposition III. The Appellant’s defense at trial
was that he acted in a heat of passion and without malice aforethought in killing his wife.
Under these circumstances I believe that the
trial court should instruct on the heat-of-passion defense and upon the State’s burden to
disprove it, where the defense is raised as an
affirmative defense and adequately raised by
the evidence. See my dissent in Hogan v. State,
2006 OK CR 19, 139 P.3d 907, 937-44. However,
under the facts of the current case, I find that
the evidence is sufficient to support Appellant’s first-degree murder conviction and that
his conviction is rightly affirmed.
LEWIS, JUDGE, CONCURS IN PART/DISSENTS IN PART:
¶1 I concur with the majority opinion insofar
as affirming the conviction. I dissent to the
modification to life without parole.
¶2 I am of the opinion that the appropriate
remedy for an improper sentencing is to
remand the case back to the trial court. Then a
properly instructed jury, hearing all properly
admissible evidence, could decide the appropriate punishment for Appellant. I agree that
1119
the mitigation strategy in this case was deficient, however, I dissent to taking the issue of
punishment away from the jury.
2007 OK CR 15
CITY OF ELK CITY, Appellant, v. BOBBY
TAYLOR, Appellee.
No. SR-2006-1101. April 23, 2007
ORDER DISMISSING APPEAL
¶1 Appellant, the City of Elk City, has filed
this appeal from a judgment of the District
Court of Beckham County, Case Number CV2005-56. This case originated in the City of Elk
City Municipal Court, a court not of record.1
Appellee Taylor was cited with six (6) counts
of violating the city ordinance prohibiting
inoperative or junk vehicles from being kept
closer than 50 feet to any street in the City of
Elk City. The municipal court found Taylor
guilty in all six (6) counts. Taylor appealed the
decision to the District Court of Beckham
County. After a trial de novo, the District Court
affirmed the municipal court’s decision in
Counts 6 and 7, but reversed the finding of
guilt in Counts 1, 2, 4, and 5, and dismissed
those charges. Appellant now appeals the decision of the District Court as to Counts 1, 2, 4,
and 5 and seeks to reinstate the decision of the
municipal court as to those counts.
¶2 This appeal was originally filed with the
Oklahoma State Supreme Court. On October
17, 2006, the case was transferred to this Court
and became at issue on February 9, 2007. Our
review of the record showed this case did not
meet the statutory requirements for appeals by
the state or a municipality. Therefore, we
directed Appellant to file a response and show
cause both as to its right of appeal and why
this case should not be dismissed.
¶3 In a timely filed response, Appellant
states that although Appellee Taylor initially
appealed to the criminal court in Beckham
County, the District Court determined the matter should have been filed as a civil case, and in
compliance with those instructions, the matter
proceeded as a civil case until the Oklahoma
Supreme Court transferred it to this Court,
effectively converting it to a criminal status.
¶4 Appellant argues that the appeal should
not be dismissed for two reasons: 1) the civil
rules applicable in the lower court should
remain applicable, and have been complied
with, on appeal; and 2) even if criminal procedural rules are applied to this appeal from a
1120
civil action, those rules have been sufficiently
satisfied in this appeal. Appellant further
argues that the “unique procedural posture” of
this case renders it a “special proceeding” to
which civil procedural rules may be applied
despite its being technically categorized as a
criminal matter. Appellant also suggests that
perhaps another transfer is warranted to permit the Oklahoma Supreme Court to consider
the civil constitutional preemption issues
raised herein.
¶5 In a response to Appellant’s response,
Appellee Taylor asserts that despite Appellant’s attempts to characterize the matter as a
civil claim, it is a criminal matter, having originated at the municipal level. Taylor argues the
case should be dismissed as Appellant did not
properly comply with 22 O.S.2001, § 1053,
requirements for appeals by the state.
¶6 This Court can only address a case in the
posture in which it comes to us. The present
case comes to this Court, via the Oklahoma
Supreme Court, as an appeal from a judgment
of the district court on a trial de novo of a case
appealed from a municipal court not of record
for the violation of a city ordinance.
¶7 The right to an appeal is a statutory right
and exists only when expressly authorized.
White v. Coleman, 1970 OK CR 133, ¶ 11, 475
P.2d 404, 406. Title 22 O.S.Supp.2002, § 1053
limits appeals to this Court by the state or a
municipality to the following instances, “and
no other”: 1) upon judgment for the defendant
on quashing or setting aside an indictment or
information; 2) upon an order of the court
arresting the judgment; 3) upon a question
reserved by the state or a municipality; 4) upon
judgment for the defendant on a motion to
quash for insufficient evidence in a felony matter; and 5) upon a pretrial order, decision, or
judgment suppressing or excluding evidence
where appellate review of the issue would be
in the best interests of justice.
¶8 Under § 1053.1, an appeal may be taken
by the state when a district court in a criminal
action has declared a state statute unconstitutional. That appeal is taken by the district
attorney upon a reserved question of law. Rule
6.1, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch.18, App. (2006), provides
for an appeal by the state from an adverse
ruling of a magistrate pursuant to 22 O.S.2001,
§ 1089.1 et seq. In support of his argument that
this case is a civil matter and not a criminal
action, Appellant admits, and we agree, that
Vol. 78 — No. 13 — 4/28/2007
neither §§ 1053, 1053.1 or Section VI of this
Court’s rules apply in this case.2 See also City of
Tulsa v. King, 1978 OK CR 23, ¶ 4, 574 P.2d 1088,
1089, citing Oklahoma City v. Tucker, 11 Okl. Cr.
266, 145 P. 757 (1915) (§ 1053 does not permit
an appeal by a municipality). However, revisions to Section 1053 now allow a municipality
to appeal pursuant to that section.
¶9 The prosecution in a municipal court for
the violation of a city ordinance is a criminal
matter as a finding of guilt carries with it criminal penalties, i.e, incarceration or fines or both.
See 11 O.S.2001, §§ 27-103 and 28-102.3 Title 11
O.S.2001, §§ 27-132 and 28-128 provide for the
right to appeal to this Court the final de novo
judgment or order of a district court in an
appeal from a final judgment of a municipal
court not of record or directly from a municipal
court of record, respectively. While neither
statute specifically states by whom an appeal
may be taken, this Court has limited the right
to appeal under those sections to the criminal
defendant, and not the state or a municipality.
See Valega v. City of Oklahoma City, 1988 OK CR
101, ¶ 1, 755 P.2d 118, 119; Bush v. State, 1981
OK CR 62, ¶ 1, 632 P.2d 764; Depuy v. State,
1981 OK CR 65, ¶ 1, 629 P.2d 371, 372; (pursuant to § 132, each case permitted an appeal
by a criminal defendant to this Court from the
affirmance by the district court of a conviction
from a municipal court not of record). This
interpretation of the statutory language is consistent with the limitations placed on appeals
by the state or a municipality under 22
O.S.Supp.2002, § 1053 and 22 O.S.2001, §
1053.1 . Further, based upon the 1978 effective
dates for §§ 27-132 and 28-128, it appears those
sections were enacted in response to Hinkle v.
City of Oklahoma City, 1977 OK CR 29, ¶ 2, 559
P.2d 851 and Schiedt v. Rakestraw, 1976 OK CR
78, ¶ 9, 548 P.2d 677, 679, which both held that
a criminal defendant did not have the right to
appeal to the Court of Criminal Appeals from
a judgment and sentence pronounced by the
district court in its trial de novo of a case
appealed from the municipal court for violation of a city ordinance. To the extent Hinkle
and Schiedt are inconsistent with current law,
they are hereby overruled.
¶10 Accordingly, we find the appeal by the
City of Elk City from a judgment and sentence
Vol. 78 — No. 13 — 4/28/2007
of the District Court’s trial de novo of a case
appealed from a municipal court not of record
for the violation of a city ordinance is a criminal matter.4 However, it does not meet the
statutory requirements for an appeal by a
municipality and is not properly before this
Court. This appeal is therefore DISMISSED.
¶11 IT IS SO ORDERED.
¶12 WITNESS OUR HANDS AND THE
SEAL OF THIS COURT this 23rd day of April,
2007.
/s/ Gary L. Lumpkin
GARY L. LUMPKIN,
Presiding Judge
/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
1. See 11 O.S.2001, § 27-101 , creation of municipal courts not of
record.
2. To the extent Appellant argues this appeal falls under 22 O.S.
Supp.2002, § 1053 (3) as a reserved question of law, we find Appellant
did not properly reserve a question of law in the district court. Appellant’s argument that “the City has maintained a consistent stance
regarding every issue in question here and thus essentially has
reserved the question” does not meet the requirements for bringing an
appeal under § 1053(3). See State v. Harp, 1969 OK CR 207, ¶ 2, 457 P.2d
800, 804 (notice of intent to appeal on reserved question of law must
be filed with reserved question specifically stated). See also State v.
Anderson, 1998 OK CR 67, ¶ 2, 972 P.2d 32, 33.
3. 11 O.S.2001, § 27-103 provides:
The municipal court shall have original jurisdiction to hear and
determine all prosecutions wherein a violation of any ordinance
of the municipality where the court is established is charged.
11. O.S. 2001, § 28-102 (A) provides:
A. The municipal criminal courts of record shall have original
jurisdiction to hear and determine all prosecutions when a violation of any of the ordinances of the city where the court is
established is charged, as provided by Article VII, Section 1 of
the Oklahoma Constitution.
4. If the City intended to pursue this case as a civil action, it should
have filed an original action in the District Court seeking an injunction, writ, abate nuisance determination or some other civil recourse.
1121
NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT
THE OKLAHOMA INDIGENT DEFENSE SYSTEM BOARD OF DIRECTORS gives notice
that it will entertain sealed Offers to Contract (“Offers”) to provide non-capital trial level defense
representation during Fiscal Year 2008 pursuant to 22 O.S. 2001, §1355.8. The Board invites
Offers from attorneys interested in providing such legal services to indigent persons during
Fiscal Year 2008 (July 1, 2007 through June 30, 2008) in the following counties: 100% of the
Indigent Defense System caseload in Cherokee and LeFlore Counties; and 25% of the
Indigent Defense System caseload in Blaine County.
Offer-to-Contract packets will contain the forms and instructions for submitting Offers for the
Board’s consideration. Contracts awarded will cover the defense representation in the OIDS
non-capital felony, juvenile, misdemeanor and traffic cases in the above counties during
FY-2008 (July 1, 2007 through June 30, 2008). Offers may be submitted for partial or complete
coverage of the open caseload in any one or more of the above counties. Sealed Offers will
be accepted at the OIDS offices Monday through Friday, between 8:00 a.m. and 5:00 p.m. The
deadline for submitting sealed Offers is 5:00 p.m., Thursday, May 3, 2007.
Each Offer must be submitted separately in a sealed envelope or box containing one (1)
complete original Offer and two (2) complete copies. The sealed envelope or box must be
clearly marked as follows:
FY-2008 OFFER TO CONTRACT
________________ COUNTY / COUNTIES
TIME RECEIVED:
DATE RECEIVED:
The Offeror shall clearly indicate the county or counties covered by the sealed Offer; however, the Offeror shall leave the areas for noting the time and date received blank. Sealed Offers
may be delivered by hand, by mail or by courier. Offers sent via facsimile or in unmarked or
unsealed envelopes will be rejected. Sealed Offers may be placed in a protective cover
envelope (or box) and, if mailed, addressed to OIDS, FY-2008 OFFER TO CONTRACT, Box
926, Norman, OK 73070-0926. Sealed Offers delivered by hand or courier may likewise be
placed in a protective cover envelope (or box) and delivered during the above-stated hours to
OIDS, at 1070 Griffin Drive, Norman, OK 73071. Please note that the Griffin Drive address
is NOT a mailing address; it is a parcel delivery address only. Protective cover envelopes
(or boxes) are recommended for sealed Offers that are mailed to avoid damage to the sealed
Offer envelope. ALL OFFERS, INCLUDING THOSE SENT BY MAIL, MUST BE
PHYSICALLY RECEIVED BY OIDS NO LATER THAN 5:00 P.M., THURSDAY, MAY 3, 2007
TO BE CONSIDERED TIMELY SUBMITTED.
Sealed Offers will be opened at the OIDS Norman Offices on Friday, May 4, 2007, beginning
at 9:00 a.m., and reviewed by the Executive Director or his designee for conformity with the
instructions and statutory qualifications set forth in this notice. Nonconforming Offers will be
rejected on Friday, May 4, 2007, with notification forwarded to the Offeror. Each rejected Offer
shall be maintained by OIDS with a copy of the rejection statement.
Copies of qualified Offers will be presented for the Board’s consideration at its meeting on
Friday, May 18, 2007, at Griffin Memorial Hospital, Patient Activity Center (Building 40), 900
East Main, Norman, Oklahoma 73071.
1122
Vol. 78 — No. 13 — 4/28/2007
NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT
With each Offer, the attorney must include a résumé and affirm under oath his or her
compliance with the following statutory qualifications: presently a member in good standing of
the Oklahoma Bar Association; the existence of, or eligibility for, professional liability insurance
during the term of the contract; and affirmation of the accuracy of the information provided
regarding other factors to be considered by the Board. These factors, as addressed in the
provided forms, will include an agreement to maintain or obtain professional liability insurance
coverage; level of prior representation experience, including experience in criminal and juvenile
delinquency proceedings; location of offices; staff size; number of independent and affiliated
attorneys involved in the Offer; professional affiliations; familiarity with substantive and
procedural law; willingness to pursue continuing legal education focused on criminal defense
representation, including any training required by OIDS or state statute; willingness to place
such restrictions on one’s law practice outside the contract as are reasonable and necessary
to perform the required contract services, and other relevant information provided by attorney
in the Offer.
The Board may accept or reject any or all Offers submitted, make counter-offers, and/or
provide for representation in any manner permitted by the Indigent Defense Act to meet the
State’s obligation to indigent criminal defendants entitled to the appointment of competent
counsel.
FY-2008 Offer-to-Contract packets may be requested by facsimile, by mail, or in person,
using the form below. Offer-to-Contract packets will include a copy of this Notice, required
forms, a checklist, sample contract, and OIDS appointment statistics for FY-2003, FY-2004,
FY-2005, FY-2006, and FY-2007, together with a 5-year contract history for each county listed
above. The request form below may be mailed to OIDS OFFER-TO-CONTRACT PACKET
REQUEST, Box 926, Norman, OK 73070-0926, or hand delivered to OIDS at 1070 Griffin
Drive, Norman, OK 73071 or submitted by facsimile to OIDS at (405) 801-2661.
************
REQUEST FOR OIDS FY-2008 OFFER-TO-CONTRACT PACKET
Name:__________________________________
OBA #: _____________________
Street Address: __________________________
Phone: _____________________
City, State, Zip: __________________________
Fax:
_____________________
County / Counties of Interest: __________________________________________________
__________________________________________________________________________
__________________________________________________________________________
Vol. 78 — No. 13 — 4/28/2007
1123
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
Program; the statewide YMCA Oklahoma Youth & Government Program; the Mayes
County and surrounding areas Youth Court; the special touring exhibit of the
Oklahoma City Memorial Museum on Lincoln and the Constitution; and the Senior
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
1124
Vol. 78 — No. 13 — 4/28/2007
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, April 4, 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.
103,433 Phillip R. Halstead & Vera Aktansel v.
Ok Employment Security Comm et al.
103,438 Jimmy Dale Murphy v. Nabors
Drilling USA, LP et al.
103,457 John Keith Tucker v. Melonie Kara
Hamm (now Knutson).
103,464 Lexmark Homes Inc v. Lexie M. Johnson.
103,470 Auto Crane Co v. St OK, ex rel., OK
Dept of Labor et al.
103,669 Julie Ann Rogers v. Steven Brown.
103,718 Lonnie E. Hobbs v. Ronald E. Hobbs
& Donald Hobbs.
104,313 Lora Ann Miller v. Satea Ltd et al.
104,391 Chesapeake Energy Marketing Inc v.
St Ok, ex rel, State Board of Equalization & Oklahoma Tax Comm.
104,402 Pangea Exploration Corp v. Sarah
Ryland et al.
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. 13 — 4/28/2007
/s/
James E. Edmondson
VICE CHIEF JUSTICE
103,988 Alfred Sawatzky v. Alnita Sawatsky.
104,041 In the Matter of the Estate of Clarence
F. Nichols and Mary L. Nichols,
Deceased. James L. Nichols v. Sharon
K. Mautino.
/s/
James R. Winchester
CHIEF JUSTICE
101,511 Stephen P. Wallace v. Ronald Saffa &
Trust Co of OK.
102,558 Jennifer Hurst, now Nooner v. Bryan
Hurst.
103,244 Keith Eidson v. Independent School
Dist No 1-009 of Tulsa County aka
Union Public Schools.
103,280 Bonnie J. Dennis v. Wendell E. Drake.
103,480 Regina Justice v. Life Stat Ambulance
Service.
104,123 Manpower & Ins Co of St of Penn v.
Mary A. Rinehart & WCC.
104,151 Jimmy D. Miller v. Boeing North
American Inc et al.
104,175 Roger & Amy Spring v. William C.
Scott.
104,178 Kathy Rust et al v. Carriage Services
of OK, Inc., et al.
1125
/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.
102,506 Maurice T. Steet v. St Ok, Dept of
Human Services.
102,777 Margaret Pulley v. Indiana Glass Co.
& WCC.
103,409 Susan Diener v. R.D. Diener.
103,727 Pioneer Equipment Rental v. W S
Bowlware Construction Co.
103,741 Evelyn Stephens v. Katharina Green.
104,021 Arkansas Valley State Bank v. John W.
Phillips Jr et al.
104,143 Roadrunner Delivery Service etc v.
Billy J. McCarter & WCC.
104,248 Larry Beedle v. Fenton, Fenton, Smith,
Reneau & Moon et al.
104,352 Hydrotex Partners v. Apex Plumbing,
Heating & Piping, Inc.
104,394 OKC Gear Inc v. Russell Huffman etc
et al.
1126
/s/
James E. Edmondson
VICE CHIEF JUSTICE
103,489 ST of OK, ex rel Dept of Transportation v. Lamar Advertising of OK, Inc.,
an OK domestic corporation et al.
103,490 ST of OK, ex rel Dept of Transportation v. Garret & Company, LLC, an
OK limited liability company, et al.
104,424 Karen S. Darr v. Health Ryan Seleer
and the Town of Wellston, Oklahoma.
/s/
James R. Winchester
CHIEF JUSTICE
103,515 Charles Andrew Permaul v. Oklahoma Health Care Authority.
103,519 Mark Tucker v. Mary Ann Tucker.
103,898 David D. Taylor v. David E. Taylor &
Gayla D. Taylor et al.
103,917 Melissa D. Briscoe et al v. John C. Morris et al.
103,932 Garland Landscape & Design Inc v.
ML Young Construction.
103,948 ST OK, Dept Trans. v. Sober Brothers
et al.
104,069 Robert H. Stewart v. Valor Telecommunications et al.
104,154 Braums Ice Cream & Dairy Stores v.
Jeri Hubble & WCC.
Vol. 78 — No. 13 — 4/28/2007
/s/
James R. Winchester
CHIEF JUSTICE
2007 OK CIV APP 23
PHILLIP ESTRADA, Plaintiff/Appellant, v.
PORT CITY PROPERTIES, INC., d/b/a
HODGES WAREHOUSE,
Defendant/Appellee.
No. 102,834. February 23, 2007
APPEAL FROM THE DISTRICT COURT OF
OKMULGEE COUNTY, OKLAHOMA
HONORABLE CHARLES HUMPHREY,
JUDGE
REVERSED AND REMANDED
Robert V. Seacat, Seacat & Seacat, Okmulgee,
Oklahoma, for Appellant,
Kenneth L. Brune, David L. Messer, Brune Law
Firm, Tulsa, Oklahoma, for Appellee.
Opinion by Larry Joplin, Presiding Judge:
¶1 Plaintiff/Appellant Phillip Estrada
(Plaintiff) seeks review of the trial court’s order
granting the demurrer to the evidence/motion
for directed verdict of Defendant/Appellee
Port City Properties, Inc., d/b/a Hodges Warehouse (Defendant), on Plaintiff’s claim for
wrongful, retaliatory termination of his
employment. In this appeal, Plaintiff asserts he
presented evidence establishing a prima facie
case for recovery. Having reviewed the record,
we agree. The order of the trial court is accordingly reversed, and the cause remanded for
further proceedings.
total disability (TTD) during his absence from
work, and that he returned to work for Defendant in March 2003 upon release by his treating physician. Plaintiff continued to experience
pain in his left ankle, and Defendant’s workers’ compensation insurance carrier referred
him to a different physician for examination.
The new physician found Plaintiff again TTD,
and Plaintiff subsequently submitted to
surgery for repair of a ruptured ligament.
¶4 During this second period of TTD, Plaintiff consulted an attorney, and in April 2003,
Plaintiff, by and through his attorney, filed a
Form 3, Employee’s First Notice of Injury and
Claim for Compensation, in the Workers’
Compensation Court. The attorney subsequently secured additional workers’ compensation benefits for accrued and accruing TTD
at a higher weekly rate than previously paid.
¶5 Following rehabilitation, Plaintiff
returned to work on September 29, 2003. Shortly after reporting to work, Plaintiff was called
to the office and told “they didn’t need me
[any] more,” and “we just don’t have
[any]thing for you,” although “there was
never [any talk] of anything like firing me or
laying me off” previously. And, Plaintiff
denied that he was ever offered work in any
other department upon his release from treatment in September. Plaintiff opined that,
because he neither perceived nor suffered any
adverse consequences of his first absence upon
his return to work in March 2006, Defendant
must have terminated his employment
because he had retained counsel and pursued
additional workers’ compensation benefits
during his second absence.
¶2 Plaintiff commenced the instant action in
November 2003, seeking recovery of damages
as a result of Defendant’s alleged wrongful termination of his employment in retaliation for
his hiring of an attorney and pursuit of a workers’ compensation claim. Defendant denied
retaliatory motive.
¶6 However, Plaintiff admitted that, upon
notifying Defendant’s warehouse manager of
his injury, the manager recommended that he
promptly obtain medical attention, and that
Defendant filed its Form 2, Employer’s First
Notice of Injury, in the Workers’ Compensation Court shortly after his injury to commence
payment of workers’ compensation benefits to
him. Plaintiff also admitted that, to his knowledge, Defendant had never threatened or fired
an employee because of an on-the-job injury, or
pursuit of workers’ compensation benefits, or
for hiring an attorney to pursue such a claim.
¶3 At trial over two days in October 2005,
Plaintiff testified that he suffered a job-related
injury to his left ankle in January 2003, that he
received payments from Defendant’s workers’
compensation insurance carrier for temporary
¶7 The Defendant’s warehouse manager testified that it was necessary to obtain a replacement to perform Plaintiff’s job during his
injury-related absence, and that, when Plaintiff
returned to work in September, there were no
Vol. 78 — No. 13 — 4/28/2007
1127
openings in the department where Plaintiff
had previously worked. The warehouse manager further alleged that he offered Plaintiff
work in another department, which Plaintiff
refused.
¶8 But, the warehouse manager also testified
that he thought Plaintiff had abandoned his
employment when he left in March. And, the
warehouse manager further attributed Plaintiff’s termination to the loss of one major client
and a decline in business, requiring a general
reduction in the warehouse workforce,
although he admitted the loss of the major
client did not directly impact the department
where Plaintiff had worked.
¶9 Upon presentation of Plaintiff’s case in
chief, Defendant interposed a demurrer to the
evidence and motion for directed verdict.
Upon consideration of the parties’ trial briefs
and arguments, the trial court granted judgment for Defendant, holding:
The Court finds that the Plaintiff failed
to present sufficient evidence to raise a
legal inference that retaliation was
involved in the discharge . . . . The Court
finds that the timing of the termination
does not raise an inference that the termination was significantly motivated by the
Plaintiff’s filing of a Worker’s Compensation Claim or by his hiring of an attorney.
The uncontroverted testimony from the
Plaintiff was that no one threatened his job
for filing a Worker’s Compensation Claim
or for hiring an attorney. The Plaintiff testified that no one at Hodges, to his knowledge, has ever been fired or threatened for
filing a Worker’s Compensation Claim or
hiring an attorney in order to assist with a
Worker’s Compensation Claim. The Plaintiff has presented no evidence of any pattern of the Defendant ever firing any
employee for filing a Worker’s Compensation Claim within the last ten (10) years.
The Plaintiff has presented no evidence
that any supervisor at Hodges criticized
the Plaintiff for seeking Worker’s Compensation benefits or for hiring an attorney to
assist him with his claim.
The Court notes that [Defendant] did
not fight the Worker’s Compensation
Claim when it was initially filed and assisted [Plaintiff] in getting treatment and gave
[Plaintiff] his old job back when he
returned to work in March.
1128
Based on these reasons, the Court finds
that the Plaintiff has failed to establish his
prima facie case and that the Motion for a
Directed Verdict should be and hereby is
granted. Judgment should be and hereby is
entered in favor of the Defendant, Port
City Properties, Inc., d/b/a Hodges Warehouse.
(Emphasis original.)
Standard of Review
¶10 The same legal standard governs a ruling on a demurrer to the evidence, motion for
directed verdict and motion for summary
judgment. Harder v. F.C. Clinton, Inc., 1997 OK
137, ¶6, 948 P.2d 298, 301-302; Middlebrook v.
Imler, Tenny & Kugler, M.D.’s, Inc., 1985 OK 66,
¶44, 713 P.2d 572, 586.1 A demurrer to the evidence, motion for directed verdict or motion
for summary judgment should not be granted
unless there is an entire absence of proof on a
material issue, and all should be denied “when
there are questions of material fact or reasonable persons could differ as to the choice of
inferences to be drawn from the facts in evidence.” Harder, 1997 OK 137, ¶6, 948 P.2d at
301-302; Middlebrook, 1985 OK 66, ¶44, 713 P.2d
at 586. To determine whether the evidence is
sufficient to withstand a demurrer to the evidence, motion for directed verdict, or motion
for summary judgment, the trial court must
consider the evidence in the light most favorable to the plaintiff, and “[o]nly if all the inferences to be drawn from the evidence are in
favor of the moving party will a [demurrer,]
directed verdict [or summary judgment] withstand appellate scrutiny.” Harder, 1997 OK 137,
¶6, 948 P.2d at 301-302.
Retaliatory Discharge
¶11 “No person, firm, partnership, corporation, or other entity may discharge . . . any
employee because the employee has in good
faith: [f]iled a [workers’ compensation] claim;
[r]etained a lawyer for representation regarding a claim; [i]nstituted or caused to be instituted any proceeding under the provisions of
this title; [or] [t]estified or is about to testify in
any proceeding under the provisions of” the
Oklahoma Workers’ Compensation Act. 85
O.S. §5(A). In order to establish a prima facie
case for retaliatory discharge under §5, “[t]he
discharged employee must show employment,
on the job injury, receipt of treatment under
circumstances which put the employer on
notice that treatment had been rendered for a
work-related injury, or that the employee in
Vol. 78 — No. 13 — 4/28/2007
good faith instituted, or caused to be instituted, proceedings under the Act, and consequent
termination of employment.” Buckner v. General Motors Corp., 1988 OK 73, ¶9, 760 P.2d 803,
806. (Emphasis original.) “The ultimate burden
of persuading the trier of fact that the employer retaliatorily discharged the employee for
exercising statutory rights under the Act
remains at all times with the employee.”
Buckner, 1988 OK 73, ¶11, 760 P.2d at 807.
¶12 The plaintiff’s “evidence must have sufficient probative value to constitute the basis
for a legal inference rather than mere speculation.” Mantha v. Liquid Carbonic Industries, Inc.,
1992 OK CIV APP 28, ¶7, 839 P.2d 200, 203;
Gussa v. J. Morris and Associates, Inc., 2000 OK
CIV APP 50, ¶2, 12 P.3d 473, 474; Wallace v. Haliburton Co., 1993 OK 24, ¶11, 850 P.2d 1056,
1059; Thompson v. Medley Material Handling,
Inc., 1987 OK 2, ¶8, 732 P.2d 461, 463. “Because
employers seldom admit to any wrongdoing,
the link between the employee’s filing of a
workers’ compensation claim and his subsequent termination m[ay] . . . be shown by circumstantial evidence.” Mantha, 1992 OK CIV
APP 28, ¶7, 839 P.2d at 203; Thompson, 1987 OK
2, ¶8, 732 P.2d at 463.
¶13 The timing of the discharge may constitute evidence of retaliatory motive, but it is not
outcome determinative. Gussa, 2000 OK CIV
APP 50, ¶2, 12 P.3d at 474; Wallace, 1993 OK 24,
¶6, 850 P.2d at 1059; Thompson, 1987 OK 2, ¶10,
732 P.2d at 463. The employer’s response to its
employees’ contemplated or actual commencement of workers’ compensation proceedings
may also constitute evidence of retaliatory
motive. See, Wallace, 1993 OK 24, ¶¶12-16, 850
P.2d at 1059-60.2 See also, Rogers v. Welltech, Inc.,
1991 OK CIV APP 21, ¶¶5-7, 813 P.2d 534, 536;
Elzey v. Forrest, 1987 OK 58, ¶12, 739 P.2d 999,
1003.
¶14 If the plaintiff demonstrates a prima
facie case, “the burden then appropriately
shifts to the employer to rebut the inference
that its motives were retaliatory by articulating
that the discharge was for a legitimate nonretaliatory reason for the discharge.” Buckner,
1988 OK 73, ¶9, 760 P.2d at 806. “The employer’s burden is a burden of production of relevant and credible evidence, not a burden of
persuasion[,] [and] [i]t is sufficient if the
employer’s evidence raises a genuine issue of
fact concerning whether it retaliatorily discharged the employee.” Buckner, 1988 OK 73,
¶10, 760 P.2d at 807. “[T]he worker [is then
afforded] a full and fair opportunity to demonVol. 78 — No. 13 — 4/28/2007
strate that the reason offered by the employer
for terminating the employee was not the true
reason for the employment decision but was,
rather, a pretext.” Id.
¶15 Where plaintiff makes a prima facie
showing of retaliatory discharge, and plaintiff’s evidence is controverted by the defendant/employer, “it [is] for the jury to decide
what weight the evidence would be afforded.”
Wilson v. Hess-Sweitzer & Brant, Inc., 1993 OK
156, ¶18, 864 P.2d 1279, 1284; Wallace, 1993 OK
24, ¶16, 850 P.2d at 60. Ultimately, where reasonable people could differ on the questions of
the employer’s retaliatory motive or pretextual explanation, a demurrer to the evidence or
motion for directed verdict should be denied,
and the questions submitted to the jury for resolution. Wallace, 1993 OK 24, ¶16, 850 P.2d at
60; Rogers, 1991 OK CIV APP 21, ¶7, 813 P.2d at
536.
¶16 Did Plaintiff present probative evidence,
which, when viewed in the light most favorable to him, establish such a legal inference of
retaliatory motive? We think so. The evidence
and testimony showed that Plaintiff neither
discerned nor experienced any adverse consequences of his first injury-related absence
when he returned to work in March, but that,
after he hired an attorney and pursued an
adjustment to his weekly TTD benefit during
his second injury-related absence, Defendant
terminated his employment. The evidence and
testimony also showed that Defendant offered
differing reasons for Plaintiff’s termination,
variously ascribed to the needs of the Plaintiff’s department, a decline in business, Plaintiff’s abandonment of the employment, and/or
Plaintiff’s refusal of employment in a different
department.
¶17 On this evidence, we believe reasonable
people might conclude that Defendant terminated Plaintiff only out of business necessity.
However, we believe reasonable people might
also conclude that Defendant terminated
Plaintiff because he retained an attorney to
pursue additional TTD benefits, and that
Defendant’s professed reasons for terminating
Plaintiff were pretextual.
¶18 Under these circumstances, because reasonable people could differ as to the choice of
inferences to be drawn from the facts in evidence, we hold the trial court should not have
granted Defendant’s demurrer to the evidence/motion for directed verdict. The order
of the trial court granting Defendant’s demur-
1129
rer to the evidence/motion for directed verdict
is REVERSED, and the cause REMANDED for
further proceedings.
ADAMS, J., and MITCHELL, V.C.J., concur.
1. “[A]ppellants contend that their demurrer to the evidence
should have been sustained. Upon review of that contention it is
incumbent upon this court to examine the evidence in the light most
favorable to the plaintiff and if there is any competent evidence or reasonable inference from the evidence tending to establish a cause of
action, the demurrer is correctly overruled.”
2. Where, “[p]rior to his injury, [plaintiff] had been rated competent or commendable in most areas of his work and had recently
received a raise and a promotion[,] [t]here was no evidence that Wallace could not perform his job upon returning to work[,] [t]here was
evidence that employees were encouraged to file work related injuries
under [defendant’s] self-health insurance rather, than under workers’
compensation[,] [an] . . . employee from another plant testified that his
supervisor got mad when he said he was going to file a workers’ compensation claim, [t[here was testimony from [plaintiff] and another . .
. employee who said they worried about being discharged if they filed
a claim for workers’ compensation[,] [e]vidence was offered that other
employees less qualified than Wallace but who had not filed compensation claims were not let go[,] [and] [e]vidence of a pattern of terminating employees who filed workers’ compensation claims was
offered,” held, “a jury could have concluded with reasonable probability that Wallace’s filing a claim was a significant factor in Halliburton’s decision to choose him as one of the four employees to be laid
off,” “it was for the jury to decide what weight the evidence would be
afforded,” “[t]he trial court did not error in overruling Halliburton’s
motions for directed verdict and new trial.”
2007 OK CIV APP 24
STATE OF OKLAHOMA, ex rel.,
PROTECTIVE HEALTH SERVICES OF THE
OKLAHOMA STATE DEPARTMENT OF
HEALTH, Plaintiff/Appellant, v. BILLINGS
FAIRCHILD CENTER, INC.,
Defendant/Appellee.
Case No. 101,767. October 24, 2006
NOBLE COUNTY, OKLAHOMA
HONORABLE DAN ALLEN, TRIAL JUDGE
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS
OPINION
Blake Bostick, Mary D. Womack, OKLAHOMA STATE DEPARTMENT OF HEALTH,
Oklahoma City, Oklahoma, for Plaintiff/
Appellant,
Danny K. Shadid, DANNY K. SHADID, P.C.,
Oklahoma City, Oklahoma, Nita R. Giles,
Oklahoma City, Oklahoma, Nikki G. Leach,
Perry, Oklahoma, for Defendant/Appellee.
OPINION BY KEITH RAPP, VICE CHIEF
JUDGE:
¶1 The trial court plaintiff, State of Oklahoma ex rel. Protective Health Services of the
Oklahoma State Department of Health (State)
appeals a judgment in favor of the trial court
1130
defendant, Billings Fairchild Center, Inc.
(BFC), finding that BFC had “answered sufficiently” the State’s discovery requests. BFC
counter-appeals the trial court’s preceding
decision finding that the district court had
jurisdiction to hear State’s petition.
BACKGROUND
¶2 The parties are generally in agreement as
to the facts. State had cited BFC for a violation
concerning “immediate jeopardy” of a resident. BFC requested an administrative hearing. In the administrative hearing case, BFC
designated an expert witness.
¶3 When State indicated a desire to depose
the expert, BFC’s counsel advised that the
expert would charge a fee at an hourly rate of
$750.00. State then served interrogatories upon
BFC seeking information as set out in 12 O.S.
Supp. 2005, §3226(B)(3)(a)(3).1 This appeal
involves three of the questions and responses.
They are:
Interrogatory No. 1b: Please provide a
summary of the grounds for each opinion
formed by Arnal Moorad, M.D., the expert
witness.
Answer: The Petitioner does not know the
specific grounds for each of Dr. Moorad’s
anticipated opinions. You will have to ask
Dr. Moorad.
Interrogatory No. 1c: Please identify the
qualifications of Arnal Moorad, M.D., the
expert witness, including a listing of all
publications authored by Dr. Moorad within the preceding ten (10) years.
Answer: Dr. Moorad is the Medical Director of Integris Jim Thorpe Hospital in Oklahoma City. He is Board Certified in internal medicine and rehabilitative medicine.2
The Petitioner does not know Dr. Moorad’s
publications.
Interrogatory No. 1e: Please provide a listing of any other cases in which Arnal
Moorad, M.D., the expert witness, has testified as an expert at trial or by deposition
within the preceding four (4) years.
Answer: The Petitioner does not know.
¶4 The State requested that the Administrative Law Judge (ALJ) compel interrogatory
answers. The ALJ ruled that there was no
authority for the ALJ to consider and rule upon
a motion to compel answers to interrogatories.
The ALJ agreed with BFC’s argument that the
Vol. 78 — No. 13 — 4/28/2007
Discovery Code did not apply in administrative proceedings and that discovery in those
proceedings was governed by 75 O.S.2001,
§315 of the Oklahoma Administrative Procedures Act (APA), which does not mention
interrogatories.3
¶5 State did not appeal that ruling. Instead,
State filed the present action in District Court
as a Petition for Order to Compel Discovery
Requests.4 BFC challenged the trial court’s subject matter jurisdiction arguing, as it did before
the ALJ, that the APA and not the Discovery
Code governed. The trial court ruled that it did
have jurisdiction to hear State’s petition and
this ruling is the subject of BFC’s counterappeal.5
¶6 After its initial rulings, the trial court then
considered State’s petition. The trial court
ruled that BFC’s answers were sufficient and
that State’s request for sanctions was not
warranted. State appeals.
STANDARD OF REVIEW
¶7 The trial court’s ruling that it had subject
matter jurisdiction, together with the attendant
interpretation of statutes, constitutes a legal
ruling. The appellate court has the plenary,
independent, and nondeferential authority to
reexamine a trial court’s legal rulings. Neil
Acquisition, L.L.C. v. Wingrod Investment Corp.,
1996 OK 125, 932 P.2d 1100 n.1. Matters involving legislative intent present questions of law
which are examined independently and without deference to the trial court’s ruling. Keizor
v. Sand Springs Ry. Co., 1993 OK CIV APP 98,
¶5, 861 P.2d 326, 328.
¶8 The ruling that BFC’s answers are sufficient is reviewed under the abuse of discretion
standard. “A trial court is accorded broad discretion in deciding discovery matters, and its
determination in such matters will not be disturbed absent a finding of abuse of discretion
or that the decision is contrary to law.” Bank of
Oklahoma, N.A. v. Briscoe, 1995 OK CIV APP
156, ¶27, 911 P.2d 311, 318.
ANALYSIS AND REVIEW
A. BFC’s Counter-Appeal
¶9 BFC’s counter-appeal presents the question of the trial court’s jurisdiction to hear
State’s petition and whether Interrogatories
are available as a discovery tool in an administrative hearing of the nature of an “individual
proceeding,”6 which is the issue involved here.
Although Interrogatories are not specifically
Vol. 78 — No. 13 — 4/28/2007
mentioned in Section 315 of the APA, nevertheless, Section 315(A) authorizes an agency to
require the furnishing of information “as may
be necessary and proper for the purposes of
the proceeding.” Therefore, the question is not
whether the Discovery Code applies to agencies, rather the question is whether an agency
has authority to make rules of procedure, and
if so, what did the agency promulgate as its
rules.
¶10 Therefore, this Court holds that a state
agency, which is authorized to promulgate
rules governing procedures for individual proceedings, has the authority under Section
315(A) and the APA generally to provide for
Interrogatories as a discovery tool. The provision for use of Interrogatories may be accomplished by adoption of the Oklahoma Discovery Code, thereby making the Discovery Code
provisions a part of the agency’s procedures.7
¶11 The Legislature has given the State
Board of Health the power to “[a]dopt such
rules, and standards as it deems necessary to
carry out any of the provisions of this Code.”
63 O.S.2001, §1-104(B)(2). A “rule” is defined
by statute to include “any agency or group of
related statements of general applicability and
future effect that . . . describes the procedure or
practice requirements of the agency.” 75
O.S.2001, §250.3(15). As noted above, Section
315(A) contains a broad authorization to
require furnishing of necessary and proper
information.
¶12 The State Board of Health has promulgated rules of procedure for individual
proceedings. A portion of the rules provides:
Order of procedure
(a) Generally that of civil proceedings.
The order of procedure in hearings in all
individual proceedings shall generally be
governed by the Oklahoma Pleading Code
and the Discovery Code. At the hearing,
each party may make a brief opening statement; present witnesses, documents and
exhibits on its behalf; cross-examine
adverse witnesses; and make closing arguments. The rules of evidence shall be those
specified by the APA. At the discretion of
the Administrative Law Judge, any party
may reopen the case in chief, even after the
adverse party has rested. Parties may stipulate to any lawful matter.
(b) Matters not described. Any matter of
practice or procedure not specified either
1131
by the APA or by these rules will be guided
by practice or procedure followed in the district courts of this state.
Okla. Admin. Code, §310:2-5-8 (1999).
¶13 Thus, the provisions of the Oklahoma Discovery Code in particular, and the Code of Civil
Procedure generally, are part of the agency’s
rules. These statutory procedures are part of the
Board of Health’s procedures by virtue of its
rulemaking as distinguished from applicability
attributed to statutory language in the Discovery Code or in the Code of Civil Procedure.
¶14 BFC’s reliance on Oklahoma Human Rights
Comm’n v. Wilson Certified Foods, Inc., 1975 OK
76, 536 P.2d 349, is misplaced. There, the use of
Interrogatories by the agency occurred in the
investigative phase of its inquiry into Wilson’s
employment practices, as distinguished from an
Individual Proceeding. Such use was specifically permitted by statute. Thus, the case has no
application to the question of whether Interrogatories may be utilized as a discovery tool in
an Individual Proceeding conducted under an
agency’s adopted rules of procedure.
¶15 BFC’s contention that the enforcement
power of the district court is limited to disobedience of subpoenas has no merit. Section
315(C) of the APA refers to “any lawful agency
requirement for information.” As this Court has
held that Interrogatories constitute a lawful discovery tool in an individual proceeding when
such tool is adopted as a component of the
agency’s procedures, the resort to district court
for enforcement is likewise available to the
agency. Consequently, the trial court did not err
in its ruling that it had jurisdiction to hear
State’s petition.
B. State’s Appeal
¶16 The challenged answers provided by BFC
do not comport with the answering requirements of the Discovery Code.8 First, Interrogatories must be answered fully unless specific
objection(s) is interposed. 12 O.S.2001, §3233(A).
Here, BFC did not interpose an objection but
responded with incomplete or evasive answers.
Consequently, any objections BFC may have had
to the subject Interrogatories is waived, unless
excused for good cause which does not appear
in the record here. 12 O.S.2001, §3233(A).
¶17 Civil trials no longer are to be conducted
in the dark. Discovery, consistent with recognized privileges, provides for the parties to
obtain the fullest possible knowledge of the
issues and facts before trial. Rozier v. Ford Motor
1132
Co., 573 F.2d 1332, 1346 (5th Cir. 1978). “The aim
of these liberal discovery rules is to ‘make a trial
less a game of blind man’s bluff and more a fair
contest with the basic issues and facts disclosed
to the fullest practicable extent.’ ” Id. Discovery
by interrogatory requires candor in responding.
Dollar v. Long Mfg., 561 F.2d 613, 616 (5th
Cir.1977); West v. Cajun’s Wharf, Inc., 1988 OK 92,
¶13, 770 P.2d 558, 562. The Oklahoma Supreme
Court has granted a new trial due to a failure to
provide complete information and supplementation of discovery requests. West, 1988 OK 92 at
¶21, 770 P.2d at 564. This Court perceives no
legal distinction or policy difference justifying
another conclusion simply because a matter
involves an Individual Proceeding before an
administrative agency which has rules and regulations allowing discovery by interrogatory.
Therefore, this Court holds that when an agency
has incorporated the Oklahoma Discovery Code
into its procedures, the agency also incorporates
the underlying policies and purposes associated
with the Oklahoma Discovery Code.
¶18 The Oklahoma Discovery Code closely
tracks the Federal Rules of Civil Procedure, so
federal decisions provide guidance. West, 1988
OK 92 at ¶13, 770 P.2d at 562. In Thomason v. Leiter, 52 F.R.D. 290 (M.D. Ala. 1971), examination of
questions propounded by defendants and plaintiffs’ answers thereto reflected that in each
instance plaintiffs’ answers were incomplete or
evasive, so filing of further and unambiguous
answers to such questions was ordered.
¶19 Here, State’s interrogatories followed the
language of the Discovery Code. All information available to BFC must be supplied, including information possessed by, or within knowledge of, BFC’s attorney, investigators, experts,
and agents or representatives. Wycoff v. Nichols,
32 F.R.D. 370 (W.D. Mo. 1963). In Miller v. Doctor’s General Hosp., 76 F.R.D. 136 (W.D. Okla.
1977), an Interrogatory asked the Defendant to
divulge the illness for which a particular patient
of Defendant was hospitalized and the symptoms of that patient’s illness. Defendant objected
to this Interrogatory on the grounds that it
sought to elicit privileged information and medical information which Defendant was not qualified to give. The Court sustained a motion to
compel additional answers, ruling:
This is an insufficient answer. Rule 33, Federal Rules of Civil Procedure, provides for
the answering of interrogatories “separately
and fully in writing under oath, unless it is
objected to, in which event the reasons for
objection shall be stated in lieu of an
Vol. 78 — No. 13 — 4/28/2007
answer.” In the interest of narrowing the
issues and ascertaining the facts relevant
thereto, the Court should not permit
answers to interrogatories that are incomplete, inexplicit and unresponsive. . . . The
answers to interrogatories must be responsive, full, complete and unevasive. The
answering party cannot limit his answers to
matters within his own knowledge and
ignore information immediately available to
him or under his control. . . . If an appropriate interrogatory is propounded, the
answering party will be required to give the
information available to him, if any, through
his attorney, investigators employed by him
or on his behalf or other agents or representatives, whether personally known to the
answering
party
or
not
. . . . If the answering party lacks necessary
information to make a full, fair and specific
answer to an interrogatory, it should so state
under oath and should set forth in detail the
efforts made to obtain the information. . . .
Defendant’s conclusory statement that
Interrogatory No. 12 seeks medical information which Defendant is not qualified to
give is not a sufficient response. Plaintiff’s
Motion to Compel Answers to Interrogatories should be sustained as it relates to Interrogatory No. 12 and Defendant is directed to
further answer the same.
Miller, 76 F.R.D. at 139-40 (citations omitted).
¶20 This Court holds that the trial erred in its
ruling that BFC had sufficiently responded to
the subject Interrogatories.9 Therefore, this
aspect of the judgment is reversed and the cause
is remanded for further proceedings consistent
with this Opinion.
¶21 JUDGMENT FINDING TRIAL COURT
JURISDICTION AFFIRMED; JUDGMENT
FINDING DISCOVERY RESPONSES SUFFICIENT REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
GABBARD, P.J., and REIF, J., concur.
1 Subsection B(3) provides:
3. TRIAL PREPARATION: EXPERTS.
a. Discovery of facts known and opinions held by experts,
otherwise discoverable under the provisions of paragraph 1
of this subsection and acquired or developed in anticipation
of litigation or for trial, may be obtained only as follows:
(1) A party may, through interrogatories, require any other
party to identify each person whom that other party expects
to call as an expert witness at trial and give the address at
which that expert witness may be located.
(2) After disclosure of the names and addresses of the expert
witnesses, the other party expects to call as witnesses, the
party, who has requested disclosure, may depose any such
expert witnesses subject to scope of this section. Prior to tak-
Vol. 78 — No. 13 — 4/28/2007
ing the deposition the party must give notice as required in
subsections A and C of Section 3230 of this title. If any documents are provided to such disclosed expert witnesses, the
documents shall not be protected from disclosure by privilege or work product protection and they may be obtained
through discovery.
(3) In addition to taking the depositions of expert witnesses
the party may, through interrogatories, require the party
who expects to call the expert witnesses to state the subject
matter on which each expert witness is expected to testify;
the substance of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each
opinion; the qualifications of each expert witness, including
a list of all publications authored by the expert witness within the preceding ten (10) years; the compensation to be paid
to the expert witness for the testimony and preparation for
the testimony; and a listing of any other cases in which the
expert witness has testified as an expert at trial or by deposition within the preceding four (4) years. An interrogatory
seeking the information specified above shall be treated as a
single interrogatory for purposes of the limitation on the
number of interrogatories in Section 3233 of this title.
b. A party may discover facts known or opinions held by an
expert who has been retained or specially employed by
another party in anticipation of litigation or preparation for
trial and who is not expected to be called as a witness at trial,
only upon motion, when the court may order discovery as
provided in Section 3235 of this title or upon a showing of
exceptional circumstances under which it is impracticable
for the party seeking discovery to obtain facts or opinions on
the same subject by any other means.
c. Unless manifest injustice would result:
(1) The court shall require that the party seeking discovery
pay the expert a reasonable fee for time spent in responding
to discovery under division (2) of subparagraph a of this
paragraph and subparagraph b of this paragraph.
(2) The court shall require that the party seeking discovery
with respect to discovery obtained under subparagraph b of
this paragraph, pay the other party a fair portion of the fees
and expenses reasonably incurred by the latter party in
obtaining facts and opinions from the expert.
2. BFC subsequently provided a curriculum vitae and also corrected the areas of board certification. State’s appeal as to this Interrogatory pertains only to the response about the publications.
3. BFC’s argument begins with citation to the Discovery Code’s
opening provision that the Code “governs the procedure for discovery
in all suits of a civil nature in all courts of this state.” 12 O.S.2001,
§3224. The APA’s Section 315 provides:
A. 1. The agency conducting any individual proceeding shall
have power to require the furnishing of such information,
the attendance of such witnesses, and the production of such
books, records, papers or other objects as may be necessary
and proper for the purposes of the proceeding.
2. The agency, or any party to a proceeding before it, may
take the depositions of witnesses, within or without the
state, in the same manner as is provided by law for the taking of depositions in civil actions in courts of record. Depositions so taken shall be admissible in any proceeding affected by this act. Provided, however, all or any part of the deposition may be objected to at time of hearing, and may be
received in evidence or excluded from the evidence by the
agency or individual conducting the hearing in accordance
with the law with reference to evidence in this act or with
reference to evidence in courts of record under the law of the
State of Oklahoma.
B. In furtherance of the powers granted by subsection A of
this section, any agency, administrative head, hearing examiner or any other duly authorized member or employee
thereof, upon its own motion may, and upon the request of
any party appearing in an individual proceeding shall:
1. Issue subpoenas for witnesses;
2. Issue subpoenas duces tecum to compel the production of
books, records, papers or other objects, which may be served
by the marshal of the agency or by any person in any manner prescribed for the service of a subpoena in a civil action;
or
3. Quash a subpoena or subpoenas duces tecum so issued;
provided, prior to quashing a subpoena or subpoenas duces
tecum the agency shall give notice to all parties. A subpoena
or subpoenas duces tecum may not be quashed if any party
objects.
C. 1. In case of disobedience to any subpoena issued and
served under this section or to any lawful agency requirement for information, or of the refusal of any person to testify to any matter regarding which he may be interrogated
1133
lawfully in a proceeding before an agency, the agency may
apply to the district or superior court of the county of such
person’s residence or to any judge thereof for an order to
compel compliance with the subpoena or the furnishing of
information or the giving of testimony. Forthwith the court
or the judge shall cite the respondent to appear and shall
hear the matter as expeditiously as possible.
2. If the disobedience or refusal is found to be unlawful, the
court, or the judge, shall enter an order requiring compliance. Disobedience of such an order shall be punished as
contempt of court in the same manner and by the same procedure as is provided for like conduct committed in the
course of judicial proceedings.
4. State also sought sanctions. The trial court’s final judgment
denied sanctions but State has not briefed the issue in its appeal, so
that issue is waived. Okla. Sup. Ct. R. 1.11(k)(1), 12 O.S.2001, ch. 15,
app.
5. This Court notes that BFC’s response to the Interrogatories did
not object to them on jurisdictional grounds. BFC characterized its
response as being in the spirit of cooperation. State has not argued that
BFC waived its objections by failing to object to the Interrogatories
from the beginning.
6. 75 O.S.2001, §250.3(7) defines “Individual Proceeding.”
“Individual proceeding” means the formal process
employed by an agency having jurisdiction by law to resolve
issues of law or fact between parties and which results in the
exercise of discretion of a judicial nature.
7. For example, the Department of Environmental Quality incorporated the Oklahoma Discovery Code. Okla.. Admin. Code, §252:4-938 (2001). The Oklahoma Department of Mines makes special provisions for Interrogatories. Okla. Admin. Code, §460:2-5-1. The Department of Commissioners of Land Office merely references the APA.
Okla. Admin. Code, §385:1-1-9(4) (2005). The Oklahoma Corporation
Commission procedures are not covered by the APA, but that agency
makes special provisions for Interrogatories in its rules. Okla. Admin.
Code §165:5-11-1(c) (1999).
8. The scope of the questions follow the Discovery Code. 12
O.S.2001, §3226(B)(3)(a)(3). BFC has not interposed a claim of privilege
or protection nor has it argued that a protective order is necessary.
9. This Court notes statements by BFC’s counsel indicating that
some of the requested information may not exist. A sufficient answer
to Interrogatories would include that information and such information as may be available to show why it does not exist and what alternative sources have been exhausted by BFC to provide the information. Moreover, if, for example, the expert witness has testified as an
expert but truly does not know how many times or have records, listing the cases, a sufficient response would so indicate and generally
state the nature and extent of his experience as an expert witness.
Finally, BFC cannot evade responses on the basis of expense, as Section
3226(B)(3)(c) provides adequately for payment of expenses.
2007 OK CIV APP 25
STATE OF OKLAHOMA, EX REL.
DEPARTMENT OF TRANSPORTATION,
Plaintiff/Appellee, v. DAVIS KELLY and
ANNE KELLY, Defendants/Appellants,
Roy Elmer Kelly and Callie Kelly Family
Living Trust, both deceased, their known
and unknown heirs, executors,
administrators, legatees, devisees, trustees,
creditors and assigns; Davis R. Kelly and
Roma Lee Cox, Co-Trustees; and the LeFlore
County Treasurer, Defendants.
Case No. 102,566. September 15, 2006.
LeFLORE COUNTY, OKLAHOMA
HONORABLE TED KNIGHT, JUDGE
REVERSED AND REMANDED
Ryan M. Roberts, K. Ellis Ritchie, Pryor, Oklahoma, for Defendant/Appellant,
1134
Barry K. Roberts, Norman, Oklahoma, and
Belva Brooks Barber, Tulsa, Oklahoma, for
Plaintiff/Appellee.
Opinion by Larry Joplin, Judge:
¶1 This appeal arises out of a condemnation
proceeding initiated by The Oklahoma Department of Transportation to acquire land, including landowners’ home. Relief is sought by
landowners from an order of the trial court
directing them to (1) include Replacement
Housing Payments as an integral part of any
award of just compensation made by the commissioners, and (2) place specific dollar values
on each element of damage attributed to the
state’s taking and provide same to the assessing commissioners. Because we agree with
appellants, the order of the trial court is
reversed and the cause remanded for further
proceedings.
¶2 State of Oklahoma/Department of Transportation (State) initiated condemnation
proceedings to acquire from Defendant/
Appellant Davis Kelly and Anne Kelly
(Landowners) a tract of land for construction
of a highway improvement project funded, in
part, with federal monies. The trial court
appointed commissioners to inspect the property and assess the amount of just compensation to Landowners as a result of the State’s
taking. The court issued instructions to aid the
commissioners in the performance of their
duties. Over objections raised by Landowners,
the trial court issued supplemental instructions directing the commissioners to consider
Landowners entitlement to replacement housing payments, made available through state
and federal relocation acts, in their compensation award, and requiring Landowners to
place dollar values on each element of damages claimed.
¶3 The commissioners filed their report,
with exceptions being entered by both parties.
Following argument, the trial court overruled
Landowners’ objection to the inclusion of
replacement housing payments in the state
condemnation proceedings and sustained
state’s motion for the commissioners to issue a
supplemental report following receipt of
landowners’ dollar-specific claim for damages.
Landowners appeal.
¶4 In this appeal, the review requires an
interpretation of federal and state statutory
provisions, as well as the interplay of the relevant provisions of those acts with the principles of state eminent domain. Statutory inter-
Vol. 78 — No. 13 — 4/28/2007
pretation raises a legal question which is subject to a de novo standard of review. Fulsom v.
Fulsom, 2003 OK 96, ¶2, 81 P.3d 652, 654. An
appellate court is endowed with plenary, independent and non-deferential authority to reexamine a trial court’s legal rulings. Kluver v.
Weatherford Hospital Authority, 1993 OK 85 ¶14,
859 P.2d 1081, 1084.
¶5 Landowners urge reversal of the trial
court’s order including Replacement Housing
Payments (RHPs) as an element of just compensation, arguing that RHPs fall outside the
scope of benefits eligible for recovery in eminent domain. The State urges affirmance of the
trial court’s order, claiming that RHPs are
essentially a moving expense and must be
included as an element of any compensation.
¶6 Landowners are “displaced persons” as
defined by the Federal Uniform Relocation
Assistance Act, 42 U.S.C. §4601 et seq., and
used in Oklahoma’s corresponding assistance
act, 63 O.S. §1092.1 et seq. (relocation acts), the
Oklahoma act providing a state-law basis for
the payment of relocation benefits and other
assistance required under federal law for projects receiving federal funds. The relocation
acts were not created to either add to, or subtract from, any element of a landowner’s claim
for just compensation to which they are
entitled under state law:
(B) Nothing in this chapter shall be construed as creating in any condemnation
proceedings brought under the power of
eminent domain any element of value or
damage not in existence immediately prior
to January 2, 1971.
42 U.S.C. §4602(b); 63 O.S. §1098. The primacy
of the states’ power of eminent domain is further confirmed in the federal act:
(B) Comparable payments under other
laws. No payments or assistance under this
title or title III of this Act shall be required to
be made to any person or included as a
program or project cost under this section,
if such person receives a payment required
by Federal, State, or local law which is
determined by the head of the Federal
agency to have substantially the same purpose and effect as such payments under
this section.
42 U.S.C. §4631(b). (Emphasis supplied). The
relocation acts were not enacted to usurp the
states’ obligation to provide just compensation
for property taken for public good.
Vol. 78 — No. 13 — 4/28/2007
¶7 Whether RHPs fall within the scope of
landowners’ entitlement to just compensation
in a condemnation proceeding must be determined by Oklahoma law. Article II, §24 of The
Oklahoma Constitution provides:
Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the
value of the property taken, and in addition, any injury to any part of the property
not taken ....
¶8 In calculating a landowner’s entitlement
to recovery for the loss of property attributed
to a taking, the Court has separated the constitutional provision into two essential components which constitute the value of landowner’s award of just compensation. The components are: (1) The market value of the property
actually taken, and (2) damages to the remaining property not taken. Williams Natural Gas
Co. v. Perkins, 1997 OK 72, 952 P.2d 483. As used
in this calculus, property means “not only real
estate held in fee, but also easements, personal
property and every valuable interest which
can be enjoyed and recognized as property.”
State ex. rel. Dept. of Transportation v. Little, 2004
OK 74, ¶22, 100 P.3d 707, 718; Graham v. City of
Duncan, 1960 OK 149, ¶18, 354 P.2d 458, 461.
Landowners may recover compensation for
either direct and consequential harm for property taken or damaged by way of either a
direct or indirect taking. Driver v. Oklahoma
Turnpike Authority, 1959 OK 88, 343 P.2d 1079.
It is entirely appropriate to require the condemnor to pay the condemnee the reasonable
cost of moving personalty from the condemned property and setting it up in another
location. Little at ¶22; 100 P.3d at 718; Oil Fields
& Santa Fe Railway Co. v. Treese Cotton Co., 1920
OK 56, 187 P.201.
¶9 The State urges us to consider RHPs as
analogous to moving expenses and, therefore,
a required element for consideration in a condemnation proceeding. In this respect, the
Oklahoma Supreme Court has determined
moving expense and other related costs of
transporting personalty from the property constituted an element of damage to the property
itself, finding that “when the necessity exists
for the removal of property from lands taken in
a condemnation proceeding, the reasonable
cost of removal is a proper element of damages... .” Id at ¶ 20; Oil Fields & Santa Fe Railway
Co. v. Treese Cotton Co., 1920 OK 56 ¶5, 187 P.
201, 203 (footnote omitted). And the Court
determined that moving and related expenses
1135
have always been an element of recovery in
Oklahoma condemnation actions.
¶10 RHPs, on the other hand, are benefits
available to qualifying landowners when
obtaining replacement housing. Monies available under the relocation acts for this purpose
include compensation for increased interest
and debt service related to financing of a new
residence, evidence of title, recording fees and
other closing costs incident to its purchase and
market differential payments based upon the
cost of acquisition. 42 U.S.C. §4623.
¶11 RHPs have never been a proper element
of just compensation in eminent proceedings
in Oklahoma. Indeed, this benefit would be
unavailable under the relocation acts pursuant
to the following:
Any payment made or to be made pursuant to the authority granted in this section shall be for compensating or reimbursing the displaced person or owner of
real property in accordance with the
requirements of the Federal Uniform Relocation Act and such payment shall not for any
purpose be deemed or considered compensation
for real property acquired or compensation for
damages to remaining property.
63 O.S. §1092.2(b). (Emphasis supplied.)
Because relocation housing payments are not
recoverable in an eminent domain action, the
trial court erred in directing the inclusion of
RHPs as proper for consideration in awarding
landowners just compensation.
¶12 Landowners further argue the trial court
infringed upon the commissioners’ statutorily
imposed status as impartial decision makers in
requiring Landowners to place dollar values
for each element of their damage claim at this
stage of the condemnation proceedings.
Landowners assert that portion of the trial
court’s order directing the disclosure of damages in monetary terms also conflicts with language contained in both the original and supplemental instructions prohibiting the commissioners from discussing offers and counteroffers made by the respective parties.
¶13 Condemnation proceedings, initiated for
the purpose of exercising the sovereign right of
eminent domain, are special statutory proceedings and are to be carried out in accordance
with the specific procedures prescribed by the
Legislature. Graham v. City of Duncan, 1960 OK
149, 354 P.2d 458. Once sworn, the commissioners are obligated to “inspect the real prop1136
erty and consider the injury which the owners
may sustain by reason of the condemnation,
and ... assess the just compensation to which
the owner is entitled; ... reporting in writing to
the clerk of the court, setting forth the quantity, boundaries and just compensation for the
property taken”. 69 O.S.Supp. §1203(c). The
statute is silent as to any duty or obligation
placed upon either the landowner or the state
at this stage of the proceedings.
¶14 However, the Court of Civil Appeals has
determined that a shared burden exists
between the condemnor and condemnee “to
see to it that the instructions to the commissioners contain all necessary information, and
are otherwise sufficiently framed, to allow the
commissioners to perform their statutory
duties.” State ex.rel. Department of Transportation v. Watkins, 1999 OK CIV APP 122¶7, 993
P.2d 144, 147. The Court determined it incumbent upon the landowners to disclose information about potential claims, including that
attributable to the loss of a tenant, “... which
may not have been apparent upon inspection
and which the commissioners needed to know
in order to consider the injury ... and ... assess
... just compensation.” Id at ¶10; 993 P.2d at
147. The duty of disclosure placed upon the
parties in Watkins is intended to supplement the
commissioners’ statutory obligation to assess
the property by providing information regarding elements of damage not available to the
commissioners during their own inspection of
the property.
¶15 The parties cite, and we find no authority, to support State’s contention that the
requirement of disclosure can in any meaningful way be construed as requiring the parties to
place a dollar value on their demands. To do as
the State argues would be to allow the parties’
assessment of the property, made on their own
volition or developed through the process of
negotiation, to stand as a substitute to the duty
placed upon the commissioners. The trial court
erred in requiring Landowners to assign specific dollar amounts for each item of damages
sought.
¶16 Therefore, we reverse the trial court’s
order and remand for further proceedings consistent with this opinion.
¶17 REVERSED AND REMANDED
BELL, P.J., concurs, and HANSEN, J., concurs
in result.
Vol. 78 — No. 13 — 4/28/2007
2007 OK CIV APP 26
SPRING CREEK CONSERVATION
COALITION, Plaintiff/Appellee, v.
OKLAHOMA DEPARTMENT OF
WILDLIFE CONSERVATION and the
OKLAHOMA WILDLIFE COMMISSION,
Defendants/Appellants.
Case No. 103,160. December 15, 2006
MAYES COUNTY, OKLAHOMA
HONORABLE JAMES D. GOODPASTER,
TRIAL JUDGE
AFFIRMED AS MODIFIED
Charles W. Shipley, Tulsa, Oklahoma, and Gerald L. Hilsher, Tulsa, Oklahoma, and Robert D.
Kellogg, Oklahoma City, Oklahoma, for Plaintiff/Appellee,
Scott D. Boughton, James V. Barwick, ASSISTANT ATTORNEYS GENERAL, Oklahoma
City, Oklahoma, for Defendants/Appellants.
OPINION
ADAMS, Judge:
¶1 The Oklahoma Department of Wildlife
Conservation and the Oklahoma Wildlife
Commission (collectively, Commission) appeal
from the entry of an order declaring invalid
Oklahoma Administrative Code §800:20-2-2
(OAC §800:20-2-2). Commission raises three
issues on appeal. Commission asks whether
the trial court erred when it: (1) found OAC
§800:20-2-2 invalid, (2) ordered it enjoined
from taking any action under OAC §800:20-22, and (3) retained jurisdiction pending promulgation and adoption of a new rule. We
answer all three questions in the negative and,
with modification, affirm the order of the trial
court.
¶2 The Legislature provided, in 29 O.S.2002
§6-504(A), that “[n]o person shall release,
deposit, place or permit to be released,
deposited or placed fish in any of the public
streams, public lakes or public ponds whose
stocking is controlled by and so designated by
the Wildlife Conservation Commission without the consent of the Wildlife Conservation
Director.” Requests to stock fish in Spring
Creek were received over several years.
¶3 In the fall of 2003, the Commission began
to develop a protocol under the rule-making
process of the Administrative Procedures Act,
75 O.S.2001 §250, et seq. (APA), for fish introVol. 78 — No. 13 — 4/28/2007
duction permit requests and for rules on several other topics. Public meetings were held and
comments gathered in early 2004 on the proposed rules. After withdrawing one of the proposed rules, the remainder were approved.
The rule adopted as OAC §800:20-2-2
addressed fish introduction into state waters.
¶4 Spring Creek Conservation Coalition
(Coalition) filed an action for declaratory relief
and argued the process to adopt OAC §800:202-2 violated the APA, the Commission had
acted arbitrarily and capriciously, and that the
Commission’s actions were in contravention of
goals set for it. The Coalition moved for summary judgment in its favor. The trial court
granted the Coalition’s motion, found the rule
void and invalid, enjoined the Commission
from taking further action under the rule or
issuing permits for the introduction of fish into
Spring Creek, and retained jurisdiction over
the matter pending adoption of a new rule.
This appeal followed.
¶5 In addressing the Commission’s claim
that summary adjudication was inappropriate,
we must examine the pleadings, depositions,
affidavits and other evidentiary materials submitted by the parties and affirm if there is no
genuine issue as to any material fact and the
Coalition was entitled to judgment as a matter
of law. Perry v. Green, 1970 OK 70, 468 P.2d 483.
All inferences and conclusions to be drawn
from the evidentiary materials must be viewed
in a light most favorable to the Commission.
Ross v. City of Shawnee, 1984 OK 43, 683 P.2d
535. We are limited to the issues actually presented below, as reflected by the record which
was before the trial court rather than one that
could have been assembled. Frey v. Independence Fire and Casualty Company, 1985 OK 25,
698 P.2d 17.
¶6 The Commission is empowered by the
Oklahoma Constitution Article XXVII, Sec. 1,
to enact rules and regulations, but the promulgation of such rules and regulations must comply with the APA. To be valid, rules must be
promulgated as required by the APA, 75
O.S.2001 §308.2, and must substantially comply with APA requirements. 75 O.S.2001
§303(E).
¶7 The Coalition’s challenge to the rule-making process was based on an alleged failure to
comply with 75 O.S.2001 §303(A)(2), which
provides that an agency “shall consider fully
all written and oral submissions respecting the
proposed rule.” The Coalition argued that this
1137
did not occur because the submissions, i.e.,
public comments made at hearings on the proposed rule, were not before the Commission
during its deliberative and evaluation process
for adoption.
¶8 According to the record, employees of the
Commission prepared summaries of the public’s comments after the public hearings. However, the Commission’s response to the Coalition’s motion stated that, “consistent with
standard protocol,” these summaries were not
provided to the Commission members unless
specifically requested. The Commissioners
were only given a statement that “[t]he majority of the comments were in favor of the proposals.” This statement does not satisfy the
statutory requirement set forth in §303(A)(2).
¶9 The process employed here is inherently
flawed because it allows employees to make
the decisions entrusted by statute to the members of the Commission as to relevance or
other factors raised in the public comments
which may bear upon the rule-making process.
The use of such a process here essentially renders the hearings for public comment a nullity.
The Commissioners are the ones who must
“consider fully” the public’s comments, and
any filtering of the comments by others not so
charged by statute under such a “standard
protocol” of the type used here is inherently
defective under the APA.
¶10 Further, 75 O.S.2001 §303.1(E)(8)
requires that, when an adopted permanent
rule is submitted to the Governor and the Legislature for approval, an agency’s rule report
shall include
A summary of the comments and explanation of changes or lack of any change made
in the adopted rules as a result of testimony received at all hearings or meetings
held or sponsored by an agency for the
purpose of providing the public an opportunity to comment on the rules or of any
written comments received prior to the
adoption of the rule.
The statement submitted to the Governor
noted that seven statewide hearings had been
held and that “[t]he consensus from those
attending was in favor of all recommendations, except for the proposal to make it illegal
to fillet fish on the water.” This summary of
comments falls far short of the requirements
under §303.1(E)(8),1 lacking, as it does, any
explanation whatsoever of any change or lack
of change occurring as a result of the testimo1138
ny and comments received at the public
hearings.
¶11 The rule-making process employed here
did not constitute substantial compliance with
the APA and the fish introduction rule produced via this defective process is invalid. The
trial court order finding OAC §800:20-2-2
invalid, enjoining the Commission from further action under the invalid rule, and retaining jurisdiction pending promulgation and
adoption of a new rule is affirmed.
¶12 However, the trial court’s order contains
textual analysis which is not relevant to a
determination of whether the rule was valid or
invalid under the APA rule-making requirements but instead addresses whether the rule
adopted by the defective process was arbitrary
and capricious. Once the trial court determined that the rule had not been properly
promulgated, any consideration of the specific
provisions of the rule was moot. Such an
analysis must await a rule properly adopted
under the APA. Accordingly, all of the trial
court’s order addressing specific provisions
which were either contained in or absent from
the defectively adopted rule must be reversed.
The trial court’s order is therefore modified to
remove those provisions, and as so modified,
is affirmed.
AFFIRMED AS MODIFIED
BUETTNER, C.J., and MITCHELL, P.J., concur.
1. The Coalition argued and the trial court order found that the
summaries given the Commission, Governor, and Legislature also
were not a fair or accurate summary of environmental and other concerns raised by the public in comments. In light of the failure of the
procedure to meet other critical aspects of the APA rule-making
requirements and the limited scope of the matters raised on appeal, we
need not address any particulars of this alleged deficiency.
2007 OK CIV APP 27
DAN JAY GILBRAITH, Plaintiff/Appellee,
v. AMY CLEVENGER, f/k/a AMY THOMAS
Defendant/Appellant, and, OKLAHOMA
DEPARTMENT OF HUMAN SERVICES, ex
rel. CHILD SUPPORT ENFORCEMENT,
Third-Party Defendant.
Case No. 102,966. December 22, 2006
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE DONALD DEASON,
TRIAL JUDGE
REVERSED AND REMANDED WITH
INSTRUCTIONS
Vol. 78 — No. 13 — 4/28/2007
Betsy Ann Brown, FOSHEE & YAFFE, Oklahoma City, Oklahoma, and, Christi Lynn Chesley, Norman, Oklahoma, for Defendant/
Appellant,
Phillip J. Tucker, Melodie Martin-Farris, THE
TUCKER LAW FIRM, Edmond, Oklahoma, for
Plaintiff/Appellee.
OPINION BY CAROL M. HANSEN, JUDGE:
¶1 In this paternity action, Appellant, Amy
Clevenger (Mother) appeals from the trial
court’s order dismissing the action pursuant to
the motion to dismiss filed by Appellee, Dan
Jay Gilbraith (Father). We reverse because the
trial court erred in determining, as a matter of
law, a preexisting obligation for child support
could not be ordered after adoption without
consent, and remand the matter to the
trial court for determination of Father’s child
support obligation.
¶2 The procedural history and facts of this
case are essentially uncontested, but they are
unusual in that both an adoption proceeding
and this “reverse” paternity action are
involved. Both matters concern the minor
child, M.P.G. (the Child), who was born in
1992. Father’s name was on the Child’s birth
certificate and Mother states he also signed an
affidavit of paternity. Father was in the military at the time of the Child’s birth and provided support until he was released from service in 1994. Mother and Father then agreed he
would not seek visitation and she would not
seek child support. Father had no direct contact with the Child after that time and Mother
did not attempt to enforce Father’s child support obligation until the controversy over
adoption arose.
¶3 Mother married Justin Clevenger (Clevenger) in April, 1994. In August 2003, Clevenger began taking action to adopt the Child.
Clevenger’s counsel wrote to Father seeking
his agreement for the adoption. Father agreed
to facilitate the adoption, but eventually asked
Mother to waive all right to child support,
which Mother would not do. Father then filed
this action in April 2004. Father asked the trial
court, inter alia, to determine his paternity of
the Child, grant custody to Mother, order visitation for him and his parents, and compute
child support to be paid by him through
Defendant Department of Human Services.1
¶4 Clevenger filed his Petition for Adoption in
August 2004, with accompanying Application
for Adoption Without Consent of the Natural
Vol. 78 — No. 13 — 4/28/2007
Father. On September 2, 2004, Mother moved
to consolidate the adoption and paternity proceedings. On that same day, the trial court filed
a Court Minute on which the court noted its
finding of Father’s paternity and that the court
would discuss the matter with the judge before
whom the adoption was proceeding to determine which court would handle the case, or in
what order the cases would proceed. In October 2004, the District Chief Judge ordered this
action transferred to the judge presiding over
the adoption, but there is nothing in the record
to establish the two actions were actually consolidated. They each retained their own case
numbers and were presided over and decided
by different judges.
¶5 In April 2005, Mother moved to enter this
cause on the non-jury docket. Father’s paternity of the Child having already been determined by the trial court, the issues remaining
were child support, custody and visitation.
The trial court set the case for pretrial conference in September, but in August 2005, Father
moved to dismiss or stay the proceedings.
Father noted Clevenger’s adoption of the
Child without Father’s consent had been
approved, thereby terminating his parental
rights. Father argued he no longer owed a
child support duty to the Child because his
parental rights had been terminated, so the
paternity action should be dismissed. Alternatively, he noted his appeal of the adoption
court’s findings and argued the paternity
action should be stayed pending the appeal.
¶6 Mother opposed Father’s motion to dismiss or stay, asserting Father had, at a minimum, remaining child support obligations for
the period prior to termination of his parental
rights, regardless of the outcome in the adoption appeal. The trial court, in its September 2,
2005 order, stayed the proceeding. The court
held — “If Plaintiff’s adoption appeal is unsuccessful/denied, then this case shall be dismissed. If Plaintiff’s adoption appeal is successful/granted, then this case shall proceed.”
The trial court denied Mother’s motion to
reconsider this order.
¶7 The Court of Civil Appeals, in an unpublished opinion in Appeal No. 102,062, affirmed
the adoption proceeding approving Clevenger’s adoption of the Child without
Father’s approval. Mandate issued in that
appeal on December 8, 2005. On December 13,
2005, the trial court filed its Order of Dismissal
in this action. The court stated in its order:
1139
The Court previously ruled that pending the
success of [Father] on Appeal, this matter
would be dismissed as a child support obligation has not been previously determined,
and an arrearage may not be sought after
the completion of the adoption. The Court
of Civil Appeals affirmed the ruling of the
District Court determining the child eligible
for adoption without consent of the natural
father
therefore
disposing of all issues in this paternity
action.
¶8 Mother appeals from the trial court’s order
of dismissal. As she did before the trial court,
Mother contends, as a matter of law, that
Father’s child support obligation for the period
prior to termination of his parental rights may be
enforced even after his rights were terminated.
Under the relevant statutory provisions, and
pertinent appellate construction of those
statutes, we agree. Statutory construction presents a pure legal question, which we review by
a de novo standard. Upton v. State ex rel. Department of Corrections, 2000 OK 46, 9 P.3d 84.
¶9 The most pertinent statutory provisions are
found at 10 O.S.2001 §83. Subsection 83(C)(1)
provides:
An individual who has been legally determined to be the father of a child pursuant to
Section 70 of this title, or an individual who
has been judicially or administratively
determined to be the father of a child shall
be ordered to pay all or a portion of the costs
of the birth and the reasonable expenses of
providing for the child, provided that liability for support provided before the determination of paternity shall be imposed for five
(5) years preceding the filing of the action.
¶10 Under Subsection 83(B)(2), an action to
enforce “the obligation of support and education” may be brought at any time prior to the
eighteenth birthday of the child. Subsection
83(B)(4) provides — “The Father’s obligation to
support is terminated if the child is adopted.”
Subsection 83(D):
The amount of child support and other support including amounts provided for in subsection C of this section shall be ordered and
reviewed in accordance with the child support guidelines provided in Section 118 of
Title 43 of the Oklahoma Statutes.
¶11 In Martin v. Brock, 2001 OK CIV APP 145,
55 P.3d 1095, the Court of Civil Appeals held:
1140
The language of §83(C)(1) is clear and
unambiguous. It does not leave the trial
court any discretion in deciding whether to
impose liability for support for the five
years preceding the filing of a paternity petition, but absolutely requires that such liability be imposed.
¶12 Thus, generally the trial court would have
no discretion in ordering Father to pay child
support. However, Father argued, and the trial
court found, “an arrearage may not be sought
after the completion of an adoption.” Mother
concedes Father has no obligation for future
child support after the adoption was completed,
that is clear under §83(B)(4), but she asserts
adoption does not obviate Father’s child support obligation arising before the adoption. We
agree.
¶13 The trial court’s finding an arrearage may
not be sought after adoption without consent is
clearly inconsistent with the Court of Civil
Appeals’ holding in Newton v. Newton, 1998 OK
CIV APP 24, 956 P.2d 934. There, the Court
adopted the holding and reasoning in Bercaw v.
Bercaw, 45 Ohio St.3d 160, 543 N.E.2d 1197
(1989), that — “Even though the adoption terminates any future legal relationship, it has no
effect on obligations that accrued during the
tenure of the then existing parent-child relationship.” The Newton Court held “the fact that the
action to reduce arrearage to judgment was
brought after the adoption is irrelevant to the
right to attempt to collect the arrearage.”
¶14 Father attempts to distinguish Newton by
arguing the father there had been ordered to pay
child support by a divorce decree. We are unpersuaded by Father’s argument. Father had an
obligation under §83(C), as a matter of law,
which was as enforceable as an order for child
support arising from a divorce action. Once the
trial court had judicially determined Father’s
paternity of the Child, and it was never actually
contested by any party, the trial court had no
discretion in imposing child support liability for
the five years preceding filing of the action.
¶15 The post-adoption affect on Father’s liability was irrelevant to Father’s obligation for
support of the Child which had accrued under
law. The fact that Father’s obligation had not
been definitively determined is also irrelevant.
Subsection 83(D) provides the formula for going
back and determining Father’s obligation using
child support guidelines which are in general
use for that purpose. It is clear the Legislature
contemplated going back in time to determine
Vol. 78 — No. 13 — 4/28/2007
support obligations because it imposed that
obligation from the time paternity is first legally,
judicially or administratively determined.
¶16 With respect to such a legal determination,
Mother contends Father should be held liable
for child support from the time she asserts he
signed a paternity affidavit. Subsection 83(C)(1)
does provide that father may be obligated for
child support from the time paternity is legally
determined pursuant to 10 O.S.2001 §70. Section
70(B)(1) in turn provides paternity may be established by a “notarized written statement of the
father and mother acknowledging paternity
pursuant to Section 1-311.3 of Title 63 of the
Oklahoma Statutes.”
¶17 Mother’s contention fails for two reasons.
First, the provision allowing for establishing
paternity by a notarized written statement was
not added to §70 until 1994 and the Child was
born in 1992. An affidavit executed at the time
the birth certificate was filed could not have
complied with 63 O.S.2001 §1-311.3 because that
section was also not enacted until 1994. Secondly, even if the affidavit were possibly applicable,
it is not in the appellate record. Without the affidavit, we cannot determine if it complied with
§1-311.3. It is the duty of the appealing party to
procure a record that is sufficient to obtain the
corrective relief sought. Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721.
¶18 The trial court’s order dismissing this
action is REVERSED. This matter is REMANDED to the trial court for determination of
Father’s child support obligation in accordance
with this opinion.
BELL, P.J., concurs, and JOPLIN, J., dissents.
1. Department of Human Services is not a party to the appeal and
has expressly waived its right to file an appellate brief. Although denominated a third-party defendant, the Department was actually an originally named defendant by Father.
2007 OK CIV APP 28
MUMMAGRAPHICS, INC., d/b/a WEBGUY
INTERNET SOLUTIONS,
Plaintiff/Appellant, v. CRO, Inc., d/b/a EL
CHICO MEXICAN CAFÉ,
Defendant/Appellee.
Case No. 103,648. march 9, 2007
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BRYAN C. DIXON, TRIAL
JUDGE
James L. Menzer, MENZER LAW OFFICES, P.C.,
Blackwell, Oklahoma, for Plaintiff/Appellant,
John F. Heil, III, Karissa K. Cottom, HALL,
ESTILL, HARDWICK, GABLE, GOLDEN &
NELSON, P.C., Tulsa, Oklahoma, and Christian
S. Huckaby, HALL, ESTILL, HARDWICK,
GABLE, GOLDEN & NELSON, P.C., Oklahoma
City, Oklahoma, for Defendant/Appellee.
OPINION
ADAMS, Judge:
¶1 Mummagraphics, Inc., doing business as
Webguy Internet Solutions (Webguy), argues the
trial court erred in denying its own motion for
summary judgment and in granting the motion
for summary judgment of CRO, Inc., doing business as El Chico Mexican Café (CRO), claiming
CRO was not entitled to judgment as a matter of
law. Webguy argued it was entitled to damages
because CRO 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. We agree that
the statute was not violated, but not on the basis
determined by the trial court. Because our de
novo review, however, renders the same result as
that of the trial court, we affirm the judgment in
favor of CRO.
¶2 Webguy states it is an electronic mail service provider as defined under 15 O.S.Supp.2003
§776.5 because it is an intermediary which is an
e-mail provider, web host and web designer.
CRO operates the El Chico Restaurants and email messages were sent by it to Webguy promoting the restaurant as a destination for “Fiesta del Cinco,”1 Mothers Day and Father’s Day.
¶3 Webguy received 3 messages which it
claims qualified as fraudulent electronic messages as described in §776.1 because the messages contained false information. The messages
were received on April 15, 2003, May 8, 2003,
and June 13, 2003, at an e-mail address set up to
track responses to advertising in a telephone
book. Each message had an attached flier and
stated: “Thank you for being a valued customer of El Chico. We appreciate your patronage and look forward to the opportunity to
serve you again soon!” Webguy claimed these
three messages were false because it, as a business entity, was not a customer of CRO’s
restaurants.
AFFIRMED
Vol. 78 — No. 13 — 4/28/2007
1141
¶4 Webguy claimed to have sustained damages because the messages consumed its
resources and the time of its employee and sole
shareholder, Mark Mumma, as well as that of
its customers, increased the cost of bandwidth,
and generated log entries. Webguy characterized the messages as the type of unsolicited emails which contribute to clutter in the electronic mailboxes of it and its clients and which
thereby make it difficult “to read and respond
to legitimate e-mails.” Webguy stated that in
lieu of actual damages it elected to claim statutory damages under 15 O.S.Supp.2003
§776.7(C). Based on these claims, CRO and
Webguy each filed motions for summary judgment. After granting CRO’s motion for summary adjudication, the trial court denied
Webguy’s motion and dismissed its petition
with prejudice. Webguy appeals.
¶5 In addressing Webguy’s claim that summary adjudication was inappropriate, we must
examine the pleadings, depositions, affidavits
and other evidentiary materials submitted by
the parties and affirm if there is no genuine
issue as to any material fact and CRO was entitled to judgment as a matter of law. Perry v.
Green, 1970 OK 70, 468 P.2d 483. All inferences
and conclusions to be drawn from the evidentiary materials must be viewed in a light most
favorable to Webguy. Ross v. City of Shawnee,
1984 OK 43, 683 P.2d 535. We are limited to the
issues actually presented below, as reflected by
the record which was before the trial court
rather than one that could have been assembled. Frey v. Independence Fire and Casualty
Company, 1985 OK 25, 698 P.2d 17.
¶6 Any recovery by Webguy is dependent on
the applicability of the statutes it cites as entitling it to damages. The goal of statutory construction is to follow legislative intent, and
statutes should be understood in their ordinary sense except when a contrary intention
plainly appears. Hess v. Excise Board of McCurtain County, 1985 OK 28, 698 P.2d 930. The
words or phrases used by the Legislature are to
be understood in the context of all of the
statute and not in an abstract sense. Matter of
Estate of Little Bear, 1995 OK 134, 909 P.2d 42.
We presume that the Legislature intended
what it expressed in a statute. Oglesby v. Liberty Mutual Insurance Company, 1992 OK 61, 832
P.2d 834. Statutory construction is not necessary if the legislative intent is clearly
expressed. Matter of Estate of Flowers, 1993 OK
1142
19, 848 P.2d 1146. If legislative intent is clearly
expressed, the ordinary meaning of the statutory language will control. Oklahoma Association for Equitable Taxation v. Oklahoma City, 1995
OK 62, 901 P.2d 800, cert. denied, 516 U.S. 1029,
116 S.Ct. 674, 133 L.Ed.2d 523.
¶7 In addition, because 15 O.S.2001 §776.1(B)
provides for a civil penalty,2 we are mindful
that strict statutory construction is required
and the statute must not be extended by implication beyond the legitimate import of the
words used by the Legislature. So-Lo Oil Company, Inc. v. Total Petroleum, Inc., 1992 OK 71,
832 P.2d 14. Penal statutes are to be strictly construed, and any cause of action based upon
such a statute must be clear and without
doubt. Quinn v. City of Tulsa, 1989 OK 112, 777
P.2d 1331.
¶8 The trial court found that the three messages “in themselves contain no false, malicious or misleading information but are clearly
sent for commercial advertising purposes.” We
agree that the messages were sent as commercial advertising, Webguy was not misled, and
the information therein was not malicious, but
must disagree that they did not contain false
information. We therefore reject the analysis
employed by the trial court, but must, based
on the statutory language, conclude as it did
that Webguy has not shown a violation of the
act.
¶9 Section 776.1(A)(3) of Title 15 makes it
unlawful to initiate an electronic mail message
that the sender knows, or has reason to know,
“[c]ontains false, malicious, or misleading
information which purposely or negligently
injures a person.” (Emphasis added.) Any ordinary grammatical construction of this statute
requires the “false, malicious, or misleading
information” to be the cause of the plaintiff’s
injury. Webguy does not attempt to show that
the information in the message is the cause of
damage but instead that the receipt and processing of the messages themselves are the
source of damage. To construe the statute in
this fashion would extend its scope beyond the
legitimate import of its words. Even if the messages had not contained the alleged false information, i.e., that the recipient was an El Chico’s
customer, the injury claimed by Webguy
would still have occurred.
¶10 The statute does not provide a remedy
for the damages claimed by Webguy due to the
Vol. 78 — No. 13 — 4/28/2007
receipt of three unsolicited messages sent by
CRO. Accordingly, though for reasons other
than those stated by the trial court, CRO was
entitled to judgment as a matter of law, and
Webguy was not entitled to judgment on its
motion for summary judgment.
¶11 The facts shown by the evidentiary
material presented to the trial court, considered in the light most favorable to Webguy,
and all reasonable inferences from those facts,
are consistent only with judgment for CRO.
The trial court’s judgment is affirmed.
AFFIRMED
JOPLIN, P.J., and MITCHELL, V.C.J., concur.
1. The advertising related to restaurant specials commemorating
Cinco De Mayo, a national holiday in Mexico celebrating the victory of
Mexican forces over those of France in the Battle of Puebla on May 5,
1862.
2. Violation subjects an offender to a civil penalty of up to $500.
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
NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT
OF kenneth L. Hird, SCBD #5288
TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION
Notice is hereby given pursuant to Rule 11.3(b), Rules Governing
Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be
held to determine if Kenneth L. Hird should be reinstated to active
membership in the Oklahoma Bar Association.
Any person desiring to be heard in opposition to or in support of
the petition may appear before the Professional Responsibility
Tribunal at the Oklahoma Bar Center at 1901 North Lincoln
Boulevard, Oklahoma City, Oklahoma, at 9:30 a.m. on Wednesday,
June 6, 2007. Any person wishing to appear should contact Dan
Murdock, General Counsel, Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007,
no less than five (5) days prior to the hearing.
PROFESSIONAL RESPONSIBILITY TRIBUNAL
Vol. 78 — No. 13 — 4/28/2007
1143
BOARD OF BAR EXAMINERS
New Attorneys Take Oath
B
oard of Bar Examiners Chairperson Deborah B. Barnes of Tulsa announces that 94 applicants
who took the Oklahoma Bar Examination on February 27-28 were admitted to the Oklahoma
Bar Association on Friday, April 27. Oklahoma Supreme Court Chief Justice James R. Winchester administered the Oath of Attorney to the candidates at a swearing-in ceremony at the State
Capitol. A total of 121 applicants took the examination.
Other members of the Oklahoma Board of Bar Examiners are Douglas W. Sanders, vice-chairperson, Poteau; Peggy B. Cunningham, Yukon; Tom A. Frailey, Chickasha; Frank H. Jaques, Ada; W.
Scott Mason III, Cordell; Sally Mock, Oklahoma City; Donna West Smith, Miami; and J. Ron Wright,
Muskogee.
New admittees are:
Jenna Michelle Abel
Emily Suzanne Anderson
Luke Alva Anthony
Benjamin Daniel Aycock
Furqan Sunny Azhar
Adam Michael Baker
Ben David Baker
Brandon Lynn Baker
Ryan Christopher Barnett
Geoffrey Harold Beeson
Jacob Matthew Benedict
Scott Robert Biggs
Jose L. Blanco
Anthony Lorinzo Bonner Jr.
Vanessa Renee Brown
Sarah Christine Bullard
Adam Nathaniel Bush
Bryan Wesley Caddell
Mary Francis Candler
Susan Kelly Carns
Jessica LoraRae Carriger
Daniel Vaughn Carsey
Wesley Ronald Carter
Cristal Charalampous
Penina Michlin Chiu
Anthony Quinn Coleman
Jereme Michael Cowan
Elliott Clark Crawford
Faustine Elizabeth Curry
Mona S. Dahr
Kelly Blake Davis
Jessica Lynn Dickerson
1144
Heather Elise Driskill-Griffin
Michael John English
Valerie Michelle Evans
Michael John Feltman Jr.
Natascha Leanne Ferguson
Scott Christopher Freeny
Aaron King Glover
James Aubrey Goins
Michael Edward Gray
Stephen Harold Greetham
Kevin Kyle Gullatt
Stephen Carney Hailey
Sean Michael Hanlon
Lindsey Michelle Thomas
Harris
Jared Hayes Harrison
Shelly Lynnette Harrison
Simon James Harwood
Quenton Todd Hatter
Leann Christine Hawks
Michael Shane Henry
Candin Ashlie Hobbs
Tanayia Indie Hubler
Barry Dean Hughes
Antonio LaRon Jeffrey
Bernard Maurice Jones
Edward Lawrence Kelley
Timothy Paul Kent
Gerald Andrew Koester
Jared Aden Looper
Matthew Dunlap Martin III
Kelly Anne Masters
Sara Anne McVay
Stefan Andre’ Mecke
Matt Bailey Mickle
John Peter Newhouse
Neelam Ashok-Kumar Patel
Justin Edlund Porter
Shari Beth Ray
Carri Ann Remillard
Mary Ann Rodriguez
Joseph Handley Rogers III
Lori Kay Rogers
Matthew Joshua Rowold
Thomas Frank RuBane
Lauren Beaule Ruggles
Jessica Rosann Sherrill
Matthew James Sill
Shea Lynn Smith
Tracy Elizabeth Smith
Bryan L. Stratton
Matthew D. Stump
Joseph Brian Svetlic
Katie Lynn Templeton
William Douglas Thomas
Perry Ryan Tirrell
Vincent Jacques Tubiana
R. Lawson Vaughn III
Michael Sullivan Vernon
Timothy McConnel Whittlesey
Gary Wayne Wolfe
David Gene Woodral
Nima Zecavati
Vol. 78 — No. 13 — 4/28/2007
BAR NEWS
The Judicial Nominating
Commission Elections
T
The selection of qualified persons for
appointment to the
judiciary is of the utmost
importance to the administration of justice in this state.
Since the adoption of Article
7-B to the Oklahoma Constitution in 1967, there has
been significant improvement in the quality of the
appointments to the bench.
Originally, the Judicial Nominating Commission was
involved in the nomination
of justices of the Supreme
Court and judges of the
Court of Criminal Appeals.
Since the adoption of the
amendment, the Legislature
added the requirement that
vacancies in all judgeships,
appellate and trial, be filled
by appointment of the governor from nominees submitted by the Judicial Nominating Commission.
The commission is composed of 13 members. There
are six non-lawyers appointed by the governor, six
lawyers elected by members
of the bar, and one at large
member elected by the other
12 members. All serve six
year terms, except the member at large who serves a
two-year term. Members
may not succeed themselves
on the commission.
The lawyers of this state
play a very important role in
Vol. 78 — No. 13 — 4/28/2007
the selection of judges since
six of the members of the
commission are lawyers
elected by lawyers. The
lawyer members are elected
from each of the six congressional districts as they existed in 1967. (As you know,
the congressional districts
were redrawn in 2002.) Elections are held each odd
numbered year for members
from two districts.
2007 ELECTIONS
This year there will be
elections for members in
Districts 3 and 4. District 3 is
composed of counties in the
southern and southeastern
part of the state. District 4 is
composed of counties in the
central and southwestern
part of the state. The procedures for the election will be
published in the bar journal.
Lawyers desiring to be
candidates for the Judicial
Nominating Commission
positions have until Friday,
May 18, 2007, at 5 p.m. to
submit their Nominating
Petitions. Ballots will be
mailed on June 1, 2007, and
must be returned by June 15,
2007, at 5 p.m.
It is important to the
administration of justice that
the OBA members in the
Third and Fourth Congressional Districts become
informed on the candidates
for the Judicial Nominating
Commission and cast their
vote. The framers of the constitutional amendment
entrusted to the lawyers the
responsibility of electing
qualified people to serve on
the commission. Hopefully,
the lawyers in the Third and
Fourth Congressional
Districts will fulfill their
responsibility by voting in
the election for members of
the Judicial Nominating
Commission.
PROCEDURES OF THE
OKLAHOMA
BAR ASSOCIATION
GOVERNING THE
ELECTION OF LAWYER
MEMBERS TO THE
JUDICIAL NOMINATING
COMMISSION
1. Article 7-B, Section 3, of
the Oklahoma Constitution requires elections be
held in each odd numbered year by active
members of the Oklahoma Bar Association to
elect two members of the
Judicial Nominating
Commission for six-year
terms from Congressional
Districts as such districts
existed at the date of
adoption of Article 7-B
of the Oklahoma
Constitution (1967).
2. Ten (10) active members
of the association, within
1145
the Congressional District
from which a member of
the commission is to be
elected, shall file with the
Executive Director a
signed petition (which
may be in parts) nominating a candidate for the
commission; or, one or
more county bar associations within said
Congressional District
may file with the
Executive Director a
nominating resolution
nominating such a
candidate for the
commission.
3. Nominating petitions
must be received at the
Bar Center by 5 p.m. on
the third Friday in May.
4. All candidates shall be
advised of their nominations, and unless they
indicate they do not
desire to serve on the
commission, their name
shall be placed on the
ballot.
5. If no candidates are nominated for any Congressional District, the Board
of Governors shall select
at least two candidates to
stand for election to such
office.
6. Under the supervision of
the Executive Director, or
his designee, ballots shall
be mailed to every active
member of the association
in the respective Congressional District on the first
Friday in June, and all
ballots must be received
at the Bar Center by
5 p.m. on the third Friday
in June.
his designee, the ballots
shall be opened, tabulated
1146
and certified at 9 a.m. on
the Monday following the
third Friday of June.
8. Unless one candidate
receives at least 40 percent of the votes cast,
there shall be a runoff
election between the two
candidates receiving the
highest number of votes.
9. In case a runoff election is
necessary in any Congressional District, runoff ballots shall be mailed,
under the supervision of
his designee, to every
active member of the
association therein on the
fourth Friday in June, and
all runoff ballots must be
received at the Bar Center
by 5 p.m. on the third Friday in July.
the Executive Director,
or his designee, the
runoff ballots shall be
opened, tabulated and
certified at 9 a.m. on the
Monday following the
third Friday in July.
11. Those elected shall be
immediately notified,
and their function certified to the Secretary of
State by the President of
the Oklahoma Bar Association, attested by the
Executive Director.
12. The Executive Director,
or his designee, shall
take possession of and
destroy any ballots
printed and unused.
13. The election procedures,
with the specific dates
included, shall be published in the Oklahoma
Bar Journal in the three
issues immediately preceding the date for filing
nominating resolutions.
COUNTIES IN EACH
DISTRICT ARE AS
FOLLOWS:
District No. 3
Atoka
Bryan
Carter
Choctaw
Coal
Cotton
Garvin
Haskell
Hughes
Jefferson
Johnston
Latimer
LeFlore
Love
Marshall
McCurtain
Murray
Pittsburg
Pontotoc
Pushmataha
Seminole
Stephens
District No. 4
Caddo
Cleveland
Comanche
Grady
Greer
Harmon
Jackson
Kiowa
McClain
*Oklahoma
Pottawatomie
Tillman
Washita
*Oklahoma County only include
selected cities: Choctaw,
Harrah, Luther, Midwest City,
Newalla, Nicoma Park, Spencer
Vol. 78 — No. 13 — 4/28/2007
ALFALFA
6
ELLIS
OSAGE
KAY
PAWNEE
MAJOR
PAYNE
DEWEY
BLAINE
ROGER MILLS
KINGFISHER
OKMULGEE
SEQUOYAH
5
OKFUSKEE
HARMON
GRADY
McCLAIN
HASKELL
HUGHES
PITTSBURG
JACKSON
COAL
STEPHENS
MURRAY
TILLMAN
JOHNSTON
COTTON
McINTOSH
LATIMER
LEFLORE
PONTOTOC
GARVIN
COMANCHE
CHEROKEE
MUSKOGEE
OKLAHOMA
CLEVELAND
4
KIOWA
DELAWARE
ADAIR
CUSTER
CADDO
GREER
OTTAWA
MAYES
WAGONER
LINCOLN
WASHITA
CRAIG
2
1
CREEK
LOGAN
CANADIAN
BECKHAM
NOWATA
ROGERS
NOBLE
GARFIELD
WOODWARD
Note: The Congressional
Districts are those
existing at the date of
the adoption of Article
7-B of the Oklahoma
Constitution.
GRANT
WASHINGTON
WOODS
TULSA
HARPER
BEAVER
SEIMINOLE
TEXAS
POTTAWATOMIE
CIMARRON
3
PUSHMATAHA
ATOKA
CARTER
McCURTAIN
JEFFERSON
LOVE
MARSHALL
CHOCTAW
BRYAN
NOTICE
JUDICIAL NOMINATING COMMISSION ELECTIONS
CONGRESSIONAL DISTRICTS 3 AND 4
Nominations for election as members of the Judicial Nominating Commission from
Congressional Districts 3 and 4 (as they existed in 1967) will be accepted by the
Executive Director until 5 p.m., Friday, May 18, 2007. Ballots will be mailed on
June 1, 2007, and must be returned by 5 p.m. on June 15, 2007.
Basic and Advanced Mediation Training!
Take Two Courses and Earn Up To
40 Hours CLE Credit (approval pending)
May 3,4,5 & 18,19
Oklahoma City
Attention New Lawyers
For More Info Contact:
The Institute for Dispute Resolution
800-248-5465
online at:
http://mediation.okstate.edu
or by email
[email protected]
Vol. 78 — No. 13 — 4/28/2007
Join the Oklahoma Bar Association Young
Lawyers Division at happy hour receptions held in
your honor! All new lawyers and YLD members are
invited to attend.
TULSA — Full Moon Café on Cherry Street
Thursday, May 3, 5:30 p.m. • Questions? Contact
Sara Berry at [email protected]
or (918) 595-4850
OKLAHOMA CITY — Bricktown Brewery
Thursday, May 17, 5:30 p.m.
Questions? Contact John Weaver at (405) 319-8535
1147
Lawyer
Ask A
★
Tuesday, May 1
7-8 p.m.
OETA stations
FEATURING
SEGMENTS ON:
✩ Privacy Rights in Public
Schools
✩ Workers’ Compensation
✩ DNA Evidence: How it
Freed an Innocent Man
Hosted by Melissa DeLacerda
Moderated by Douglas Dodd
Special Guests:
★
Oklahoma Supreme Court Chief
Justice James Winchester
OBA President Stephen Beam
1148
Assistant Federal Public Defender
FEDERAL HABEAS CORPUS DEATH PENALTY
DIVISION FEDERAL PUBLIC DEFENDER
ORGANIZATION WESTERN DISTRICT OF
OKLAHOMA
The Federal Public Defender is accepting applications
for the position of Assistant Federal Public Defender in
the Capital Habeas Unit. The Unit represents death
sentenced prisoners in federal habeas corpus litigation
proceedings throughout Oklahoma. This is a full time
position located in Oklahoma City, Applicants must
possess strong writing ability, a commitment to poverty
law or indigent criminal defense, and litigation experience in at least one of the following areas: criminal law,
death penalty litigation, habeas corpus litigation, or complex federal court civil litigation. Habeas experience
desirable but not required. High academic qualifications
and exceptional writing ability will be considered in lieu
of experience. The position requires travel. Salary
commensurate with experience and education, equivalent to salaries for Assistant U.S. Attorneys with similar
experience. Qualified persons may apply by forwarding
a letter of interest, resume, and representative writing
sample to: James A. Drummond, Supervisor, CHU,
Office of the Federal Public Defender, Western District of
Oklahoma, 215 Dean A. McGee, Suite 109, Oklahoma
City, Oklahoma 73102. Application packages must be
received no later than May 18, 2007. The Federal Public
Defender Organization for the Western District of
Oklahoma is an Equal Opportunity Employer.
N O T I C E
UNITED STATES
DISTRICT COURT
WESTERN DISTRICT
OF OKLAHOMA
Due to construction beginning April 30, 2007, the
main entrance into the
Courthouse for the
United States
District Court for
the Western District of Oklahoma
in Oklahoma City,
Oklahoma, will be
located on the east
side of the building
adjacent to
Robinson Street.
This entrance is handicap
accessible. This temporary
entrance will continue for
approximately nine months.
Vol. 78 — No. 13 — 4/28/2007
Sovereignty
Symposium
A
G
E
N
D
XX
A
Making Medicine • May 30-31, 2007
• The Oklahoma Supreme Court • The Oklahoma Indian Affairs Commission • The Indian Law
Section of the Oklahoma Bar Association • The Oklahoma Arts Council • The University of Tulsa
College of Law • The University of Oklahoma College of Law
• Oklahoma City University School of Law • The Sovereignty Symposium, Inc.
SKIRVIN HOTEL — OKLAHOMA CITY
The Sovereignty Symposium was established to provide a forum in which ideas concerning common
legal issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court
espouses no view on any of the issues, and the positions taken by the participants are not
endorsed by the Supreme Court.
Wednesday, May 30, 2007
a.m. 3.5 CLE credits / 0 ethics included
p.m. 3.5 CLE credits / 1 ethics included
Wednesday Morning:
REGISTRATION
. . . . . . . . .7:30 A.M. – 4:30 P.M.
COMPLIMENTARY CONTINENTAL
BREAKFAST . . . . . . . . . . . . . . . . . .8 – 8:30 A.M.
MORNING COFFEE/TEA
BREAK . . . . . . . . . . . . . . . . . . .10 – 10:15 A.M..
PANEL A:
MAKING MEDICINE . . . . .8:30 – 11:30 A.M.
The panel will consider language and cultural
preservation.
CO-MODERATOR:
THOMPSON WILLIAMS, (Caddo),
Denver, Colorado.
CO-MODERATOR:
JOHN C. DUNCAN, JR., Associate Professor of
Law, University of Oklahoma College of
Law, Norman, Oklahoma.
DR. MARK PLOTKIN, The Amazon
Conservation Team, Arlington, Virginia.
DR. CHARLES W. GRIM, Director, Indian Health
Service, Rockville, Maryland.
Vol. 78 — No. 13 — 4/28/2007
HONORABLE SANDY GARRETT, State Superintendent of Public Instruction, Oklahoma
City, Oklahoma.
DR. JOSEPH J. FERRETTI, Senior Vice President
and Provost, University of Oklahoma
Health Sciences Center, Oklahoma City,
Oklahoma.
CROSSLIN SMITH, (Cherokee), Traditional
Healer, Vian, Oklahoma.
ELIZABETH LUNSFORD DUNCAN, (Muscogee),
Columbus, Georgia.
DR. JERRY BREAD, (Cherokee), Professor,
University of Oklahoma, Norman,
Oklahoma.
RAMIRO MOLINA, Universidad de la Cordillera
and Fundación Diálogo Comunidades y
Medio Ambiente (FDCMA), La Paz,
Bolovia.
PANEL B:
ADVANCED BUSINESS
OPPORTUNITIES FOR TRIBAL
GOVERNMENTS . . . . . . . . .8:30 – 11:30 A.M.
The panel will consider the unique business
concerns of tribal governments and enterprises.
MODERATOR:
HONORABLE HARDY SUMMERS, Oklahoma
Supreme Court, Muskogee, Oklahoma.
CO-MODERATOR:
JENNIFER HENSHAW MCBEE, ESQ., (Cherokee),
Andrews Davis, Oklahoma City, Oklahoma.
1149
VALERIE DEVOL, ESQ., (Eastern Band Cherokee
Descent), and SANDRA HARRISON, ESQ.,
Andrews Davis, Oklahoma City, Oklahoma,
“Tribal Treatment as a Nation vs. Business
Enterprise.”
TIMOTHY D. BROWN, ESQ., (Cherokee) Andrews
Davis, Oklahoma City, Oklahoma, “Beer
and Alcohol Licensing, Navigating the
Maze.”
VALERIE DEVOL, ESQ., (Eastern Band Cherokee
Descent), and MATTHEW GRIFFITH, ESQ.,
Andrews Davis, Oklahoma City, Oklahoma,
and CARLOS JOHNSON, Bank of Oklahoma,
Oklahoma City, Oklahoma, “Tax Credits 101
for Tribal Governments and Revenue Bonds
by Tribal Governments.”
RYAN LEONARD, ESQ., Leonard & Gould, Oklahoma City, Oklahoma.
KENNIS M. BELLMARD, ESQ., (Kaw), Andrews
Davis, Oklahoma City, Oklahoma, “Practical
Issues for Tribal Businesses.”
PANEL C:
TOBACCO COMPACT . . . .8:30 – 11:30 A.M.
The panel will consider the ongoing Tribal Courts
Claims Act project, the Workers’ Compensation
Act, the Model Tribal Secured Transactions Act,
produced by the National Conference of Commissioners of Uniform State Laws and as enacted by
the Crow Tribe, Certificates of Title and Consumer
Protection. The panel will also consider Tribal
Enactment of Business Association Laws, focusing
on a Limited Liability Act.
MODERATOR:
HONORABLE SUSAN SAVAGE, Oklahoma
Secretary of State, Oklahoma City,
Oklahoma.
CO-MODERATOR:
ALVIN HARRELL, Professor of Law,
Oklahoma City University, Oklahoma City,
Oklahoma.
CO-MODERATOR:
FREDERICK H. MILLER, Professor of Law
Emeritus, University of Oklahoma College
of Law, Norman, Oklahoma.
DUCHESS BARTMESS, ESQ., Oklahoma City,
Oklahoma.
The panel will address updates in tobacco
compacting.
TONIA WILLIAMS, (Cherokee), Web Manager
of Cherokee.org, The Cherokee Nation’s
Web site, Tahlequah, Oklahoma.
MODERATOR:
WILLIAM NORMAN, ESQ., (Muscogee), Hobbs,
Straus, Dean and Walker, Oklahoma City,
Oklahoma.
JOHN PARRIS, ESQ., (Cherokee), Assistant
General Counsel, Cherokee Nation,
Tahlequah, Oklahoma.
CO-MODERATOR:
HONORABLE SCOTT MEACHAM, Oklahoma
State Treasurer, Oklahoma City, Oklahoma.
HONORABLE JIM GRAY, (Osage) Principal Chief,
Osage Nation, Pawhuska, Oklahoma.
HONORABLE RAYMOND NAUNI, Comanche
Nation Tax Commission, Lawton,
Oklahoma.
JOHN GHOSTBEAR, ESQ., Tulsa, Oklahoma.
HONORABLE JOE DORMAN, Oklahoma House
of Representatives, District Sixty-Five, Rush
Springs, Oklahoma.
JOSHUA EDWARDS, Note Editor, University of
Oklahoma School of Law, American Indian
Law Review, Norman, Oklahoma.
LAUREN SYMCOX, Articles Editor, University of
Oklahoma School of Law, American Indian
Law Review, Norman, Oklahoma.
PANEL E:
CRIMINAL OFFENSES
AND THE INTERNET . . . . .8:30 – 11:30 A.M.
The panel will consider the Adam Walsh Child
Protection and Safety Act, as well as other StateTribal-Federal Information Sharing Concerns.
VANCE MCSPADDEN, Executive Director, Oklahoma Petroleum Marketers’ Association,
Oklahoma City, Oklahoma.
MODERATOR:
HONORABLE W. KEITH RAPP, Judge,
Oklahoma Court of Civil Appeals, Tulsa,
Oklahoma.
TONY MASTIN, Oklahoma State Commission,
Tax Policy Division, Oklahoma City,
Oklahoma.
HONORABLE JOHN C. RICHTER, United States
Attorney for the Western District of Oklahoma, Oklahoma City, Oklahoma.
PANEL D:
STEPS IN TRIBAL CODE
DEVELOPMENT . . . . . . . . . . .8:30 – 11:30 A.M.
1150
Vol. 78 — No. 13 — 4/28/2007
ARVO MIKKANEN, ESQ., (Kiowa/Comanche),
Assistant United States Attorney for the
Western District of Oklahoma, Oklahoma
City, Oklahoma.
PANEL F:
TRIBAL LANDS: EVOLVING LEGAL
LANDSCAPE FOR TRIBAL
DECISION-MAKING . . . . . .8:30 – 11:30 A.M.
The panel will discuss various evolving tribal
courts.
MODERATOR:
HONORABLE JAMES EDMONDSON, Justice,
Supreme Court of Oklahoma, Muskogee,
Oklahoma.
CO-MODERATOR:
VIRGINIA W. BOYLAN,
Partner, Drinker Biddle & Reath LLP,
Washington, D.C.
INVOCATION: HONORABLE LAWRENCE
HART, (Cheyenne), Traditional Cheyenne
Peace Chief, Clinton, Oklahoma.
WELCOME: CHIEF JUSTICE JAMES
WINCHESTER, Justice, Oklahoma Supreme
Court, Chickasha, Oklahoma.
WELCOME: HONORABLE BRAD HENRY,
Governor, State of Oklahoma, Oklahoma
City, Oklahoma. (Invited)
WELCOME: HONORABLE JARI ASKINS,
Lieutenant Governor, State of Oklahoma,
Duncan, Oklahoma.
WELCOME: HONORABLE BILL FOLLIS,
Chairman, Oklahoma Indian Affairs
Commission, Oklahoma City, Oklahoma.
WELCOME: HONORABLE STEPHEN
BEAM, President, Oklahoma Bar Association, Weatherford, Oklahoma.
HONORABLE PHIL LUJAN, (Kiowa-Taos Pueblo),
Tribal Court Judge, Shawnee, Oklahoma.
SIMON BOYCE (Navajo), Legislative Associate,
Navajo Nation Office, Washington D.C.,
“The Navajo Surface Leasing Act.”
DAVID MULLON (Cherokee), Minority Counsel,
United States Senate Committee on Indian
Affairs, Washington D.C. “Transferring
Control for Management of Trust Lands
from the United States to Indian Tribes.”
ROBERT J. STAHL, ESQ., Attorney, Confederated Salish and Kootenai Tribal Court,
Flathead Reservation, Pablo, Montana.
JOE LITTLE, Associate Deputy Director, Bureau
of Indian Affairs, Office of Justice Services,
Division of Tribal Justice Support,
Washington, D.C.
Wednesday Afternoon:
OPENING CEREMONY
AND KEYNOTE
ADDRESS . . . . . . . . . . . . . . . . .1:15 – 2:30 P.M.
MASTER OF CEREMONIES –
HONORABLE RUDOLPH HARGRAVE,
Justice, Supreme Court of Oklahoma,
Wewoka, Oklahoma.
PRESENTATION OF FLAGS BY TRIBAL
LEADERS.
HONOR GUARDS: VIETNAM ERA VETERANS INTERTRIBAL ASSOCIATION,
KIOWA BLACK LEGGINGS.
INTRODUCTION OF KEYNOTE
SPEAKER: BILL CAMERON, Chairman
and CEO of American Fidelity Insurance
Company, Oklahoma City, Oklahoma.
ADDRESS: MARK J. PLOTKIN, PH.D.,
President, The Amazon Conservation Team,
Arlington, Virginia.
HONOR SONG FOR: JACK ANQUOE,
GUS PALMER, SR., JACK MONTGOMERY,
ERNEST CHILDERS, HONORABLE JOHN
B. DOOLIN, CHARLES CHIBITTY, HONORABLE ED EDMONDSON, and others
who will be missed.
CLOSING PRAYER: THE RIGHT
REVEREND WILLIAM C. WANTLAND,
(Seminole), Seminole, Oklahoma.
PANEL A:
INTERNATIONAL AND
COMPARATIVE
INDIGENOUS RIGHTS . . . . .2:30 – 5:30 P.M.
The panel will review current International and
Comparative Law concerning Native peoples.
MODERATOR:
HONORABLE MARIAN P. OPALA, Justice,
Supreme Court of Oklahoma, Warr Acres,
Oklahoma.
CO-MODERATOR:
LINDSAY ROBERTSON, Professor of Law,
University of Oklahoma College of Law,
Norman, Oklahoma.
DRUM: BRENT GREENWOOD, Wildbird.
Vol. 78 — No. 13 — 4/28/2007
1151
JOHN C. DUNCAN, JR., Associate Professor of
GIOVANNA GISMONDI, Adjunct Professor of
PANEL C:
TRIBAL HISTORIC PRESERVATION:
NATIONAL MUSEUM OF THE
AMERICAN INDIAN AND NATIVE
AMERICAN GRAVES PROTECTION
AND REPATRIATION
ACT . . . . . . . . . . . . . . . . . . . . .2:30 – 5:30 p.m.
TAIAWAGI HELTON, Associate Professor of Law,
University of Oklahoma College of Law,
Norman, Oklahoma.
The panel will discuss tribal historic preservation
and repatriation.
RAMIRO MOLINA, Universidad de la Cordillera
and Fundación Diálogo Comunidades y
Medio Ambiente (FDCMA), La Paz,
Bolovia.
MODERATOR:
HONORABLE GORDON YELLOWMAN,
(Cheyenne), Coordinator, Cultural and
Heritage Program for the Cheyenne and
Arapaho Tribes of Oklahoma.
MARGARET STEPHENSON, Professor of Law,
University of Queensland, Brisbane,
Australia.
BAMBI KRAUS, President, National Native
Tribal Historic Preservation Office,
Washington, D.C.
PANEL B:
ADVANCED SOVEREIGN IMMUNITY
– THE BUSINESS PERSPECTIVE
– WHAT DO BUSINESSES
EXPECT FROM TRIBES IN TODAY’S
WORLD? . . . . . . . . . . . . . . . . .2:30 – 5:30 p.m.
JIM PEPPER HENRY, (Kaw), National Museum
of the American Indian, Washington, D.C.
The panel will consider the use of Federal contracting, hiring preferences, commercial obligations, ordinances, economic development incentives
for energy projects, and bankruptcy issues for tribes
engaged in business enterprises and tribal housing
authorities.
MODERATOR:
HONORABLE HARDY SUMMERS,
Justice, Supreme Court of Oklahoma,
Muskogee, Oklahoma.
CO-MODERATOR:
JENNIFER HENSHAW MCBEE, ESQ., (Cherokee),
Andrews Davis, Oklahoma City, Oklahoma.
PANEL D:
PRESERVING NATIVE AMERICAN
FAMILIES THROUGH TRADITIONAL
NATIVE AMERICAN
VALUES . . . . . . . . . . . . . . . . .2:30 – 5:30 p.m.
The panel will discuss the use of Native
American traditional family values to preserve
contemporary families.
MODERATOR:
THOMPSON WILLIAMS, (Caddo), Denver,
Colorado.
PANEL E:
TRIBAL – MUNICIPAL
ISSUES . . . . . . . . . . . . . . . . . . . . .2:30 – 5:30 p.m.
The panel will discuss mutual tribal, municipal,
and state developmental concerns.
SANDRA HARRISON, ESQ., and MICHAEL
MCMAHAN, ESQ., Andrews Davis, Oklahoma City, Oklahoma.
MODERATOR:
JIM COLLARD, City Manager, Shawnee,
Oklahoma.
HONORABLE C. MICHAEL HARWELL, Chairman,
Otoe-Missouria Tribe of Oklahoma.
BARBARA WARNER, (Ponca), Executive Director,
Oklahoma Indian Affairs Commission,
Oklahoma City, Oklahoma, “Welcome and
Overview of the Tribal- Municipal Dialogue.”
STEVEN D. SANDVEN, ESQ., (Sisseton-Wahpeton
Sioux), Sioux Falls, South Dakota.
DUKE LIGON, Executive Director of Love’s
Entrepreneurship Center at Oklahoma City
University, Oklahoma City, Oklahoma.
(Invited)
CHANCELLOR GLEN JOHNSON, Oklahoma State
Regents for Higher Education, Oklahoma
City, Oklahoma.
DANNY GEORGE, Executive Director, Oklahoma Municipal League, Oklahoma City,
Oklahoma.
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Vol. 78 — No. 13 — 4/28/2007
HONORABLE NATALIE SHIRLEY, Secretary of
Commerce and Tourism, Oklahoma City,
Oklahoma.
JONNA KAUGER KIRSCHNER, General Counsel,
Department of Commerce, Oklahoma City,
Oklahoma.
DR. MARK SNEAD, BECKY CRAIGIN, Center for
Applied Economic Research, Oklahoma
State University, Stillwater, Oklahoma
“Tribal – Municipal Econometric Model.”
MICHAEL SPURGEON, City Manager, Miami,
Oklahoma, HONORABLE FLOYD LEONARD,
Chief of Miami Nation, “Case Study: City of
Miami,” “Case Study: Chickasaw Nation.“
HONORABLE CHUCK MILLS, Mayor, City of
Shawnee, Oklahoma, HONORABLE KAY
RHOADS, Principal Chief of the Sac and Fox
Nation, and LINDA PETERSON, Vice-Mayor,
City of Shawnee, Oklahoma, “Case Study:
City of Shawnee.”
PANEL F:
STATE / TRIBAL / FEDERAL
JUDGES’ MEETING . . . . . . .2:30 – 4:30 p.m.
Discussion of State, Tribal and Federal issues
affecting judicial decision making.
MODERATOR:
HONORABLE PATRICK E. MOORE, District
Judge for the Muscogee Nation, Okmulgee,
Oklahoma.
TEA/COOKIE BREAK
FOR ALL PANELS . . . . . . . .3:30 – 3:45 p.m.
SOVEREIGNTY SYMPOSIUM 20TH
ANNIVERSARY GALA AND DINNER
DANCE: Sponsored by The Oklahoma Arts
Council, The University of Oklahoma
School of Law, The University of Tulsa
College of Law, Oklahoma City
University of Law, and The Indian Law
Section of the Oklahoma Bar
Association. . . . . . . . . . . . . . . .6:30 – 9:30 P.M.
Reception music: Rebecca Oathout Suzuki
Violinists.
Featuring the dance music of Mary Kay and
Brad Henderson.
Thursday, May 31, 2007
a.m. 4 CLE credits / 0 ethics included
p.m. 4 CLE credits / .5 ethics included
Thursday Morning:
REGISTRATION
. . . . . . . . .7:30 A.M. – 4:30 P.M.
Vol. 78 — No. 13 — 4/28/2007
COMPLIMENTARY CONTINENTAL
BREAKFAST . . . . . . . . . . . . . . . . . . .8 -8:30 A.M.
PANEL A:
GOVERNMENTAL VS. COMMERCIAL
DISTINCTIONS TRIBAL SOVEREIGN
IMMUNITY . . . . . . . . . . . . .8:30 A.M. – 12 P.M.
The panel will discuss tribal sovereign immunity
in the business setting.
MODERATOR:
HONORABLE JOHN FISCHER, Judge,
Oklahoma Court of Civil Appeals, Tulsa,
Oklahoma.
CO-MODERATOR:
D. MICHAEL MCBRIDE, III, ESQ., Crowe &
Dunlevy, Tulsa, Oklahoma.
JERRY LEVINE, ESQ., Counsel for the San
Manuel Band of Mission Indians in National
Labor Relations Board vs. San Manuel Mission
Indians, pending before the United States
Court of Appeals for the District of
Columbia, Holland and Knight, Los
Angeles, California.
HONORABLE ANTHONY MIRANDA, (Pechanga
Band of Mission Indians), Chairman, California Nations Indian Gaming Association,
California.
H. LEONARD COURT, ESQ., Crowe & Dunlevy,
RANDALL SNAPP, ESQ, Crowe & Dunlevy,
Tulsa, Oklahoma, “Personnel Policy and
Procedures.”
PANEL B:
NATIVE PEOPLES AND
THE MEDIA . . . . . . . . . . . .8:30 A.M. – 12 P.M.
The panel will deal with the perception and reality of the media.
MODERATOR:
HONORABLE TOM COLBERT, Justice, Supreme
Court of Oklahoma, Tulsa, Oklahoma.
CO-MODERATOR:
FAYE HADLEY, Native American Resources/
Reference Law Librarian, Mabee Legal
Information Center, University of Tulsa
College of Law, Tulsa, Oklahoma.
CHAD BURRIS, ESQ., (Chickasaw), Film
Producer, “Goodnight Irene.”
JOAN HOWLAND, (Cherokee), Roger F. Noreen
Professor of Law and Associate Dean for
Information and Technology, University of
Minnesota Law School.
1153
KALYN FREE, (Choctaw), Founder and Director
of INDN’s List and coordinator of “Prez on
the Rez.” (Invited)
FRANK EXCELL MARLEY, III Managing Partner,
The Marley Firm, P.A. Miramar, Florida.
TERRI CALLOWAY, (Cherokee), Director of Legal
Information, OSCN. (Invited)
LEANNE HOWE, Associate Professor, English,
American Indian Studies, University of Illinois, currently through May 2007, The John
and Renee Grisham Writer-in-Residence for
Fall 2006-2007, University of Mississippi,
Focus Documentary “Spiral of Fire”
(part of the Indian Country Diaries Series,
aired on PBS).
CHRISTINE ZUNI-CRUZ, (Isleta Pueblo), Professor of Law, University of New Mexico, Editor-in-Chief of the Tribal Law Journal
(www.tlj.unm.edu). (Invited)
CARA COWAN WATTS, (Cherokee), Cherokee
Nation Tribal Council Member.
PANEL C:
JUVENILE ISSUES – THE STATE
COURT IMPROVEMENT
PROGRAM . . . . . . . . . . . . . .8:30 – 10:30 A.M.
The panel will deal with juvenile justice and
protection issues.
MODERATOR:
JAMES M. COX, (Comanche), Executive
Director, Oklahoma Association of Chiefs of
Police, Oklahoma City, Oklahoma.
CO-MODERATOR:
HONORABLE HOWARD HENDRICK, Director,
Oklahoma Department of Human Services,
SUSAN L. WORK, ESQ., Hobbs, Straus, Dean &
Walker, L.L.P., Oklahoma City, Oklahoma
“Relationship of Tribal and State Juvenile
Justice Systems.”
HONORABLE GARY E. MILLER, Associate District Judge, El Reno, Oklahoma, JJOAC
Chair – “The History, Functions and Recent
Projects of the JJOAC including Uniform
Forms and Oklahoma Children’s Code
Rewrite.”
JONNA GEITGEY, ESQ., Attorney, Department of
Human Services, Oklahoma City, Oklahoma, “CFSR & Permanency Barriers.”
1154
LINDA SMITH, MSW, Children & Family Services Division Director, Department of
Human Services, Oklahoma City, Oklahoma, “CFSR & Permanency Barriers.”
JANICE HENDRYX, ESQ., Executive Director,
Oklahoma Commission on Children and
Youth, Oklahoma City, Oklahoma, “The
Roles and Responsibility of OCCY.”
MARK JAMES, MSW, Oklahoma Commission
on Children & Youth, Oklahoma City,
Oklahoma, “Foster Care Mediation and The
Post-Adjudication Review Board.”
SUE TATE, M.S., Court Improvement Coordinator, Administrative Office of the Courts
Oklahoma City, Oklahoma, “Children’s
Court Improvement Program and Child
Permanency Mediation.”
PANEL D:
HISTORICAL
PERSPECTIVES . . . . . . . . . . .8:30 A.M. – 12 P.M.
The panel will discuss historical tribal issues.
MODERATOR:
HONORABLE JOHN F. REIF, Court of Civil
Appeals, Tulsa, Oklahoma.
CO-MODERATOR:
HONORABLE SALLY WILLETT, (Cherokee),
Administrative Law Judge, Social Security
Administration, Phoenix, Arizona.
ROBERT MILLER, Associate Professor of Law,
Lewis and Clark School of Law, Portland,
Oregon.
MARCELLA GILES, ESQ., (Muscogee), McLean,
Virginia.
ALEXANDER SKIBINE, (Osage), Professor of Law,
University of Utah School of Law, Salt Lake
City, Utah.
HONORABLE ANGIE AUNKO HAMILTON, ESQ.,
(Kiowa), Department of the Interior,
Aberdeen, South Dakota.
MARY LOU DRYWATER, Retired, Bureau of
Land Management, Oklahoma City,
Oklahoma.
PANEL E:
TRIBAL
SELF-GOVERNANCE . . . . .8:30 A.M. – 12 P.M.
The panel will deal with equal protection issues
including Indian Health issues.
Vol. 78 — No. 13 — 4/28/2007
MODERATOR:
KIRKE KICKINGBIRD, ESQ., (Kiowa), Hobbs
Straus Dean and Walker, LLP, Oklahoma
City, Oklahoma.
PRESENTATION OF SUPREME COURT
MEDAL: HONORABLE YVONNE
KAUGER, Justice, Oklahoma Supreme
Court, Colony, Oklahoma.
DUKE MCCLOUD, ESQ., Hobbs Straus Dean
and Walker, LLP, Washington, D.C. “Health
Services for Indian and Equal Protection.”
ACCEPTANCE FROM JUSTICE SANDRA
DAY O’CONNOR
CHET LUNNER, Acting Director, Office of State
and Local Government Coordination,
Department of Homeland Security, Washington, D.C., “Tribal Self Governance,
Homeland Security and Public Safety in
Indian Country.”
S. BOBO DEAN, ESQ., Hobbs Straus Dean and
Walker, LLP, Washington, D.C. “Equal Protection as an Instrument of Oppression.”
LADONNA HARRIS, (Comanche) Director,
American Indian Ambassadors Program,
Albuquerque, New Mexico. “Special Treatment for Indigenous Peoples South of the
Border.”
MORNING COFFEE /
TEA BREAK . . . . . . . . . . . . .10:30 – 10:45 A.M.
LUNCH (ON YOUR OWN) . . . . . . . .12:00 – 1:30 P.M.
Thursday Afternoon:
CEREMONY HONORING
JUSTICE SANDRA DAY
O’CONNOR . . . . . . . . . . . . . .3:30 – 4:15 P.M.
DRUM: BRENT GREENWOOD, Wildbird.
WELCOME: CHIEF JUSTICE JAMES
WINCHESTER, Oklahoma Supreme Court,
Chickasha, Oklahoma.
RECEPTION
PANEL A:
GAMING . . . . . . . . . . . . . . . . . . . .1:30 – 5 P.M.
The panel will discuss recent developments in
Tribal gaming.
MODERATOR:
JESS GREEN, ESQ., (Chickasaw), Ada,
Oklahoma.
PHILIP HOGEN, (Oglala Sioux), Chairman,
National Indian Gaming Commission,
Washington, D.C.
ELIZABETH L. HOMER, ESQ., (Osage), Homer
Law Firm, Washington, D.C.
ERNEST STEVENS, (Oneida), Chairman,
National Indian Gaming Commission,
Washington, D.C.
GARY PITCHLYNN, ESQ., (Choctaw), Pitchlynn
Law Firm, Norman, Oklahoma.
D. MICHAEL MCBRIDE, III, ESQ., Crowe &
Dunlevy, Tulsa, Oklahoma.
TRACY BURRIS, Chickasaw Nation Gaming
Commission, Ada, Oklahoma.
FRANK EXCELL MARLEY, III, Managing Partner,
The Marley Firm, P.A. Miramar, Florida.
INVOCATION: RIGHT REVEREND
ROBERT MOODY, Episcopal Bishop of
Oklahoma.
PANEL B:
OKLAHOMA ON THE MOVE:
ODOT’S CONSTRUCTION
WORK PLAN . . . . . . . . . . . . . . .1:30 – 5 p.m.
BLESSING OF THE GATHERING:
THOMPSON WILLIAMS AND
HONORABLE LAWRENCE HART,
(Cheyenne), Traditional Cheyenne Peace
Chief.
The panel will consider the common
transportation interests of the Oklahoma Indian
Nations and the Oklahoma Department of
Transportation and the opportunities to enhance
and create mutually beneficial partnerships.
CROSSLIN SMITH, (Cherokee), Tribal Elder, Vian,
Oklahoma.
MODERATOR:
GARY RIDLEY, Director, Oklahoma
Department of Transportation, Oklahoma
City, Oklahoma.
INTRODUCTION OF JUSTICE SANDRA
DAY O’CONNOR; HONORABLE ROBERT
HENRY, Tenth Circuit Court of Appeals,
Vol. 78 — No. 13 — 4/28/2007
JOHN FULLER, Chief Engineer, Oklahoma
City, Oklahoma.
1155
DAVID STREB, Assistant Chief Engineer,
Oklahoma Department of Transportation,
GARY EVANS, Assistant Chief Engineer,
Oklahoma Department of Transportation,
CASEY SHELL, Division IV Engineer, Oklahoma
City, Oklahoma.
SUE TATE, M.S., Court Improvement
Coordinator, Administrative Office of the
Courts Oklahoma City, Oklahoma,
”Children’s Court Improvement Program
and Child Permanency Mediation.”
PANEL D:
NATIVE AMERICAN CRIMINAL
JUSTICE ISSUES . . . . . . . . . . . . . .1:30 – 5 P.M.
TIM GATZ, Assistant Director of
Administration, Department of
Transportation, Oklahoma City, Oklahoma.
The panel will discuss the current research (or
lack thereof) on Native Americans and the Criminal
Justice System, and will recommend public policy
options for elected officials to effectuate the change
needed to address current shortcomings.
PANEL C:
JUVENILE ISSUES – THE STATE
COURT IMPROVEMENT
PROGRAM . . . . . . . . . . . . . . . . . .1:30 – 5 P.M.
MODERATOR:
HONORABLE DREW EDMONDSON, Attorney
General of Oklahoma, Oklahoma City,
Oklahoma. (Invited)
The panel will deal with juvenile justice and
protection issues.
MODERATOR:
JAMES M. COX, (Comanche), Executive
Director, Oklahoma Association of Chiefs of
Police, Oklahoma City, Oklahoma.
CO-MODERATOR:
HONORABLE HOWARD HENDRICK, Director,
Oklahoma Department of Human Services,
SUSAN L. WORK, ESQ., Hobbs, Straus, Dean &
Walker, L.L.P., Oklahoma City, Oklahoma
“Relationship of Tribal and State Juvenile
Justice Systems.”
HONORABLE GARY E. MILLER, Associate
District Judge, El Reno, Oklahoma, JJOAC
Chair – “The History, Functions and Recent
Projects of the JJOAC including Uniform
Forms and Oklahoma Children’s Code
Rewrite.”
JONNA GEITGEY, ESQ., Attorney, Department
of Human Services, Oklahoma City,
Oklahoma, “CFSR & Permanency Barriers.”
LINDA SMITH, MSW, Children & Family
Services Division Director, Department of
Human Services, Oklahoma City,
Oklahoma, “CFSR & Permanency Barriers.”
JANICE HENDRYX, ESQ., Executive Director,
Oklahoma Commission on Children and
Youth, Oklahoma City, Oklahoma, “The
Roles and Responsibility of OCCY.”
MARK JAMES, MSW, Oklahoma Commission
on Children & Youth, Oklahoma City,
Oklahoma, “Foster Care Mediation and The
Post-Adjudication Review Board.”
1156
CO- MODERATOR:
ANDREA WILKINS, National Conference of
State Legislatures, Denver, Colorado.
SARAH HAMMOND, Criminal Justice Program,
National Conference of State Legislatures,
Denver, Colorado.
HONORABLE JOEY JAYNE, Montana House of
Representatives, Helena, Montana.
JOSEPH DAY, Minnesota Department of Corrections Indian Affairs Liaison, Bemidji,
Minnesota.
EILEEN LUNA FIREBAUGH, Associate Professor,
American Indian Studies Program, University of Arizona, Tucson, Arizona.
CHRIS CHANEY, Deputy Director, Bureau of
Indian Affairs, Office of Justice Services,
Washington, D.C.
PANEL E:
TRIBAL DEVELOPMENT OF
ENVIRONMENTAL REGULATIONS
– THE PROPER ROLE
OF THE LAWYER . . . . . . . . . . . .1:30 – 5 P.M.
The panel will consider the procedural and
ethical constraints of the tribal lawyer.
MODERATOR:
SCOTT WILLIAMS, ESQ., Alexander, Berkey,
Williams & Weathers, LLP, Berkley,
California.
KRIS CARRE, Director, Environmental
Protection Agency, Hopland Band of Pomo
Indians, Hopland, California.
ROVIANNE A. LEIGH, ESQ., “Public Interest Law
Fellow,” Alexander, Berkey, Williams and
Weathers, LLP, Berkley, California.
Vol. 78 — No. 13 — 4/28/2007
THE SOVEREIGNTY SYMPOSIUM
making medicine
2oth
Anniversary
Skirvin Hotel • May 30 — May 31, 2007
Registration Form
Name __________________________________________ Occupation __________________________
Address _____________________________________________________________________________
City _________________________________ State _______________ Zip _______________
Billing Address _______________________________________________________________________
(if different from above)
City _________________________________ State _______________ Zip _______________
Nametag should read: __________________________________________________________________
E-mail Address and/or Website ___________________________________________________________
Telephone Numbers: Office (____) ___________________ Other (____) __________________________
Fax (____) __________________________________________________________________________
Tribal Affiliation (if applicable): ___________________________________________________________
Bar Association # ____________________________________ State ____________________________
Registration Fees
Amount
Enclosed
# of
Persons
$250.00 Registration fee - ($275.00 if postmarked after May 15)
$150.00 Registration for Federal, State or Tribal judges
(this fee is waived for Oklahoma judges)
$150.00 Registration, May 31, 2007 only
(no one day registration for May 30)
$25.00
$60.00
Dinner Reception, May 30, 2007
(if registered for the Symposium)
Dinner Reception, May 30, 2007
(if not registered for the Symposium)
TOTAL AMOUNT
Payment Method:
Check / Money Order
Credit Card (online only)
Government Voucher
(Make checks payable to Sovereignty Symposium, Inc.)
***No Refunds after Thursday, May 24, 2007***
Please mail this form to:
Ms. Julie L. Rorie
The Sovereignty Symposium, Inc.
1915 N. Stiles, Suite 305
To Register online please go to: www.oscn.net/sovereignty/
For Hotel Reservations please contact the Skirvin-Hilton Hotel at (405) 272-3040 by May 8th.
Vol. 78 — No. 13 — 4/28/2007
1157
Mandates Issued
THE SUPREME COURT
Friday, April 6, 2007
104,156 David Earl Flowers v. State of Oklahoma.
101,406 Perimeter Center Building Owners
Association, Inc. v. Retail Buildings,
Inc., and Perimeter Center Associates,
LP fka Perimeter Center Associates,
Ltd.
104,247 City of Moore, Own Risk #12350 v.
Lyndall G. Miles and The Worker’s
Compensation Court.
101,676 Richard L. Freeman v. Sybil Irene
Montague.
102,522 Kimberly Coulsen, an individual v.
West American Insurance Company.
102,223 John Wayne Caraway, on behalf of
himself and all other similarly situated v. The General Motors Corporation, a Delaware Corporation.
102,838 In the Matter of the Protest of the
Denial of the Application of Oklahoma Metafund Community Development Corp. for Recognition as a
Qualified Small Business Capital
Company.
Oklahoma Metafund Community
Development Corporation v. Oklahoma Tax Commission.
102,693 Stephen Grider and Beverly L. Grider,
individually and on behalf of those
similarly situated v. Compaq Computer Corporation.
102,893 AMS Staff Leasing and Dallas Fire &
Safety Insurance Co. v. Alfredo Olveda and The Worker’s Compensation
Court.
102,960 Gina Casida, individually and natural
mother and next of kin of Braydon
Casida v. J. Clifton Coffey, M.D. and J.
Coffee, M.D., P.C., Farmers Union
Hospital Association, and The Foundation Board of Great Plains Regional
Medical Center in Elk City, Oklahoma.
102,966 Dan Jay Gilbraith v. Amy Clevenger
fka Amy Thomas and Oklahoma
Department of Human Services, ex
rel., Child Support Enforcement.
103,210 Juan Delfino Lechuga v. Masco Contractors Services East &/or Tulsa
Energy Control, Inc., Masco Corporation and The Worker’s Compensation
Court.
103,405 Rod Edington, an individual v. Flying
J., Inc., a company doing business in
the State of Oklahoma.
103,648 Mummagraphics Inc dba Webguy
Internet Solutions v. CRO, Inc dba El
Chico Mexican Cafe.
103,791 Sharon L. Mish v. State of Oklahoma,
ex rel., Board of Review for the Oklahoma Employment Security Commission; Oklahoma Employment Security Commission; and St. Johns Medical
Center, Inc.
1158
102,849 In re: The Marriage of Justin Page v.
Billie Maxey Page.
102,864 James William Nelson and Gina Lynn
Jacobs v. Brandon Stallings.
103,022 Aaron Felix, et al v. Lucent Technologies, Inc.
103,188 Cartwright Transfer and Storage, Co.,
Inc., State of Oklahoma v. Dewayne
Garrett.
103,306 Elda May Langley v. Healthback
holding LLC and The Workers’ Compensation Court.
103,388 Debbie Bartels, Julie Bartlett, now
known as Julie Price, Jodi Lynn Black,
Stephanie Ann Chase, Karen S. Dowley, Jackie Marie Heck, Nancy Huntington, Lisa Sewell, Marcus S. Wahl
and Shirley K. Williams v. State of
Oklahoma, ex rel., Department of
Corrections.
103,483 Allied Steel Construction Company v.
Jaron Dale Bailey and The Workers’
Compensation Court.
103,508 Manpower, Inc., American Casualty
Company of Reading Pennsylvania
Insurance Carrier v. Andrew Altic
and The Workers’ COmpensation
Court.
103,638 Ramona Danette Mays v. Richard
Allen Mays.
Vol. 78 — No. 13 — 4/28/2007
103,710 Gregory Stephens v. Valeria Stephens.
103,711 Charles Epperson v. Misty Epperson
(now Grace) and David Grace, wife
and husband and Ronald Epperson
and Bea Ann Epperson, husband and
wife.
103,977 Chris Arutunoff, individually and
Red Zone Athletics v. Anatole Arutunoff and Carissa Arutunoff, dba
End Zone Athletics and In The Zone
Athletics aka Sports Town.
104,200 Mary Drake, as Personal Representative of the Estate of Ollie Kimble Jackson v. Bobby Broom and James
Broom.
104,232 Joe Logan and Jim Logan v. Anna
Louise Hood, Agent and Successor,
Trustee of the Billie Jane Logan Revocable Trust, In the Matter of the Estate
of Billie Jane Logan, Deceased, In the
Matter of the Estate of Amy Estelle
Epperson, aka Estelle Epperson,
Deceased.
102,219 Bank of Elgin, N.A. v. Robert Fox and
Lorrie Fox.
102,353 Colin Howell v. Kyle Howell, now
Dundon.
102,379 In the Matter of A.H. Arthur Hevel v.
State of Oklahoma.
102,396 Todd Alan Woods v. Stacy Allyson
Woods.
102,774 Raymond Dwight Webster, Personal
Representative of the Estate of Verdie
Mae Webster, deceased v. Irene
French.
102,810 Jared Scott Thayer v. Stacey Renee
Phillips.
102,859 In the Matter of V.N., an alleged
deprived child under 18 years of age
Vernessia Navarro, Natural mother v.
The State of Oklahoma.
102,926 Mike Allen Martin v. Direct Discount
Tires and The Worker’s Compensation Court.
102,942 Ellen D. Diggs v. William Henry
Diggs, Jr.
102,947 Jerome J. Sprenger v. Sonja Sue
Austin, Robert K. Schmitt, June M.
Schmitt, Charles Schmitt and Allen
Schmitt.
102,959 Bradley Duaine Howett v. Sondra
Kathleen Howett.
102,965 Jay M. Harvey and Misty A. Harvey
v. Brannan’s Building & Supplies, Inc.
and C.R. Brannan.
103,002 In the Matter of the Adoption and
Guardianship of SDC & MLC, minor
children
Rebecca Howard and Charles
Howard v. James Wesley “Buck”
Christensen and Dawn Roberta
Christensen.
102,402 Johnny Weldon Brown v. Tejas Sanmukh Patel and Commercial Union
Insurance Company, One Beacon
Insurance Group & Employers Fire
Insurance Company.
103,016 In Re the Marriage of Steven E.
French v. Gloria Jean French.
102,476 Billy J. Petty v. Frederick W. Southern,
Jr.
103,038 Jerry Norfield and Steve Rouse v.
Russell Gregg.
102,604 Linda Disque-Wilkinson
Wilkinson.
103,245 Stockmans Bank v. Paul D. Anderson,
individually and dba Scoggins Cattle
Company; and also dba A & S Cattle
Company; Linda S. Anderson; Chickasha Bank & Trust Company; National Bank of Commerce; Gary B.
Watkins; Dr. Noble Ballard; National
Bank of Commerce; The First National Bank in Altus; W.R. Moore; Robert
W. Wetsel; Floyd Fisher; and James
Murl Nichols.
v.
Ed
102,665 Dona Louise Matlock, now Lowrimore v. Jackey Dean Matlock.
102,674 Arvest Bank v. Bradley Alan Von
Aschen and Jennifer Marie Von
Aschen.
102,741 Stonecipher LLC and R. O. Stonecipher v. Spess Oil Company, Frank
Spess, Paul Spess and Carol Spess.
Vol. 78 — No. 13 — 4/28/2007
103,032 Martha Gray v. James Douglas Gray.
103,035 Phillip Ardrey v. Johnny Hindman.
1159
103,249 Citifinancial Auto, formerly known
as Arcadia Financial, Ltd v. James
Miller, Father of Brandon Miller
deceased. In the Matter of Citifinancial Auto, formerly known as Arcadia
Financial, Ltd v. Brandon Miller,
deceased and unkown heirs, succussessors and assigns, if any of Brandon Miller, deceased, James Miller,
father of Brandon Miller, deceased
and State of Oklahoma, ex rel., Oklahoma Tax Commission.
103,285 Euel Donahou v. Joan M. Donahou.
103,334 Marvin Hardison v. Northeast Oklahom County Action Agency Inc. and
The Workers’ Compensation Court.
103,390 Bancfirst Corporation and Bancinsure, Inc v. Maelena Cummings and
103,399 In the Matter of TLK, BLK, KK & JKK,
alleged deprived children. State of
Oklahoma, ex rel., Department of
Human Services v. Brandon King.
103,695 Weyerhauser Company, Own Risk v.
Cary L. Peters and The Workers’
Compensation Court.
104,279 Laura Eaton v. Deere & Company,
Keystone Equipment, Ark Wrecking
Co. of Oklahoma, Inc., Jeanie Kvach,
Coleman-Johnston-Clyma, Inc., and
Shirley’s Employment Service.
COURT OF CRIMINAL APPEALS
Tuesday, April 24, 2007
S-2006-74
Sayerwinnie v. State of Oklahoma.
D-2003-1140
Marquez-Burrola v. State of
Oklahoma.
103,958 Clarence E. “Cricket” Kingham and
Jason Dill, individuals v. Southroads,
LLC, an Oklahoma Limited Liability
Company.
101,038 Joseph G. Parker v. Global Health Initiative.
102,439 Thomas McCamey v. Medical Centers
of Oklahoma, LLC as Successor by
merger of Notami Hospitals of Oklahoma, Inc., dba Tulsa Regional Medical Center, Dr. Michael Whitworth
and Dr. Joebob Kirk.
102,481 Express Bus, Inc., v. State of Oklahoma, ex rel., Oklahoma Employment Security Commission and the
Assessment Board of Oklahoma
Employment Security Commission
and James Sommer and Kevin VonHauenstein.
102,667 Quinton A. Been v. Sharon M. Been.
102,685 Kathleen Underwood v. Michael Ray
Underwood.
102,835 The State of Oklahoma, ex rel.,
Gene Haynes, District Attorney v.
1996 GMC Van Automobile, Vin
1GDDM19W3TB505179, Forty-Nine
Thousand Eight Hundred Thirty
Dollars, U.S. Currency and Arthur
Magana/Claimant.
102,850 Gregory G. Meier, individually & as a
member of & on behalf of A2See
Media, LLC v. Sandra M. Leflter and
Digi-Vue.com. Inc., and Premier Multimedia, LLC and Terese Hanses.
102,928 In the Matter of The Application To
Change The Name of A.N.F.: John R.
Farlow v. Traci Michel Howard.
COURT OF CIVIL APPEALS
102,941 Green Tree Servicing LLC, v. Karen
Lynn Hayes, Gerald W. Brown, Karen
Lynn Hayes, Gerald W. Brown, John
Doe and Mrs. John Doe, as Occupants
of the Premises, Arthur Vanberschot
and Caryl Vanberschot.
103,005 Gary Tarwater v. Metals USA Plates
& Shapes and The Worker’s Compensation Court.
103,639 Hector Sanchez v. Apex Industries,
Inc., National American Insurance
1160
Company and The Worker’s Compensation Court.
102,989 Fidelity Appraisal and Inspection
Services, Inc., v. First State Bank,
Noble, Oklahoma.
103,077 Vicky Vance v. Dedra Loy.
103,284 S. Vaden Danielson v. Brian Danielson.
103,650 Phillip Keith Crawford v. State of
Oklahoma, ex rel., Corporation Commission, CompSource Oklahoma &
Vol. 78 — No. 13 — 4/28/2007
103,861 Multiple Injury Trust Fund v. Johnny
Diamond and The Workers’ Compensation Court.
104,063 Franklyn D. Spitz and Randy L. Spitz
v. BancFirst.
102,584 Winfred Daniels v. Josefina Ramirez
and Harbor Insurance Company.
102,945 Robert Champlain v. Schwans Sales
Enterprises, Inc., Liberty Mutual
Insurance Company and The Workers’ Compensation Court.
103,040 State of Oklahoma and Sandra Rojas
v. Martin W. Rivera.
103,196 Felix L. Frazier v. Janice Kaye Frazier.
103,241 Lewis Haley v. State of Oklahoma.
103,328 Eric Likens v. Misty Pool.
103,343 Calvin Threlkeld v. Delta Airlines,
Inc. &/or Delta Airlines Global Services, Inc., Ace American Insurance
Company and The Workers’ Compensation Court.
103,391 In Re The Marriage of Blaine Milam
and Jessica Pugh and Joseph E.
Darling.
103,444 Neil Wayne Thomas and Karen
Thomas v. Morris Barrow.
103,594 William G. Lasorsa and Linda K.
Lasorsa, husband and wife v. Pat Fox
dba Fox Architects v. William G.
Lasorsa and Linda K. Lasorsa, husband and wife, Gary Burton; Chris
Burton; Burton Construction, Inc.,
and James E. Weger v. James E.
Weger.
103,622 RLS Investment Company and Exahlt
Pet, Ltd v. Carlo Jo Hasbel and
Michelle Pecore, County Treasurer.
103,868 Kathryn Hall v. 4-Star Security, Inc.;
Beaver Productions, Inc.; and Spectacor Management Group aka SMG
Partners & ARA Facilities Management, Inc.
103,976 Jimmie Ray Duffield v. Cherokee
County Board of County Commissioners, Cherokee County Sheriff and
Cherokee County District Court.
104,010 Sharrazonne Coy v. Crest Discount
Foods, Benchmark Insurance Company and The Workers’ Compensation
Court.
104,292 Joe Stripling and Rose Stripling dba
G & S Cleaning Service v. Aramark,
Inc.
104,307 David Allen Drew v. Harrah Public
Schools and Glen Williams.
103,471 Randy Elizondo v. Brent Electric, Co.,
Inc.
103,491 In the Matter of the Adoption of
E.L.F., minor child. Savona Kidd v.
State of Oklahoma.
NOTICE
Ethics Opinion Withdrawn
The OBA Board of Governors at its April 20, 2007, meeting voted to withdraw 2006 OK
LEG ETH 01 issued by the OBA Legal Ethics Advisory Panel. The opinion dealt with the
question of whether a lawyer could advise both a state agency regarding the issuance of
bonds and a local government entity regarding the borrowing of funds generated by the
bond issue.
Vol. 78 — No. 13 — 4/28/2007
1161
CLASSIFIED ADS
SERVICES
OFFICE SPACE
CIVIL APPEALS, RESEARCH PROJECTS, BRIEF
WRITING, DISCOVERY ISSUES & LITIGATION
SUPPORT. Experienced former federal law clerk will
handle state and federal appeals, draft motions and
briefs and assist in trial preparation. Amy H. Wellington (405) 641-5787, E-mail: [email protected]
GREAT DOWNTOWN OKC LOCATION — ONE
OFFICE AVAILABLE FOR SUBLEASE Receptionist,
phone, copier, fax, law library, kitchen, conference
room and DSL internet. Call Denise at (405) 236-3600 or
come by 204 N. Robinson, Suite 2200.
INTERESTED IN PURCHASING Producing &
Non-Producing Minerals; ORRI; O & G Interests.
Please contact: Patrick Cowan, CPL, CSW Corporation,
P.O. Box 21655, Oklahoma City, OK 73156-1655; (405)
755-7200; Fax (405) 755-5555; E-mail: [email protected].
LEGAL RESEARCH AND WRITING. Brief writing,
motions, civil appeals, and trial support since 1995. Lou
Ann R. Barnes (918) 810-3755; [email protected]
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFE
Court Qualified
Former OSBI Agent
FBI National Academy
Arthur D. Linville (405) 636-1522
OF COUNSEL LEGAL RESOURCES — SINCE 1992 —
Exclusive research & writing. Highest quality: trial
and appellate, state and federal, admitted and practiced
U.S. Supreme Court. Over 20 published opinions with
numerous reversals on certiorari. MaryGaye LeBoeuf
(405) 728-9925, [email protected]
EXPERT WITNESSES • ECONOMICS • VOCATIONAL •
MEDICAL Economic Damages, Lost Profits Analysis, Business/Pension Valuations, Employment Discrimination,
Divorce, Wrongful Discharge, Vocational Assessment, Life
Care Plans, Medical Records Review, Business/Legal Ethics.
National Experience. Call Patrick Fitzgerald. (405) 447-6093.
APPEALS and LITIGATION SUPPORT — Research
and writing by a veteran generalist who thrives
on wide variety of projects, big or small. Cogent.
Concise. Nancy K. Anderson, (405) 682-9554,
[email protected].
MIKE RATCLIFFE APPRAISALS AND ESTATE
SALES; ISA Member, Appraisals of personal property
for Probate, Homeowners, Insurance, Charitable
Donation, and Divorce. Estate Sales conducted at 25%
commission; 30 Years experience, Expert Court Witness in Tulsa County (918) 230-8310.
1162
TULSA OFFICE BUILDING, 120 West Third, for SALE
OR LEASE, 3,000 on 1st floor, 12,000 on 2nd floor,
across from Federal Courts, One block from Tulsa
County Courts, One block from new arena, Phone system/category 5 throughout, 19 covered parking
spaces. (918) 289-7400.
SOUTH OKLAHOMA CITY OFFICE SPACE, 4 offices,
reception area, furnished conference room, kitchenette,
storage room, phone system available for lease or purchase. Parking in front. Will consider lease of part of
the available space and sharing common areas.
$1250/mo. Patrick (405) 314-0686.
DOWNTOWN OKC, 1 Block from all Courthouses.
One Very Large Executive Corner Office, fully furnished with 4 file cabinets. Receptionist, Kitchen,
Phone, Conference Room. Call Bart (405) 232-5220.
LARGE OFFICE IN MIDTOWN TULSA located in the
Utica Square area. Space includes secretary, digital
copier, telephone, voicemail, internet service, fax,
office supplies, kitchen, conference room, free unlimited parking and immediate access to the Broken Arrow
Expressway. Contact (918) 747-3772 for details.
POSITIONS AVAILABLE
Assistant City Attorney I, CITY OF NORMAN, Legal
Department. Law degree from an accredited college or
university. One to two years of progressively complex
and responsible related work experience in order to
provide quality legal representation and assistance to
City staff. Admission to State Bar and must be eligible
for admission to practice law in Federal Court. Provides support services in the areas of litigation, municipal court prosecution, investigation of claims, and
preparation of contracts and ordinances. Applicant
must provide a writing sample. Selected applicant
must pass a background investigation and drug
screen. $50,189 annually. Application Deadline: May 3,
2007. Obtain application at: 201-C West Gray, Human
Resources Dept. CITY OF NORMAN (405) 366-5482,
JOB LINE (405) 366-5321, Web: cityofnorman.com,
EOE/AA
Vol. 78 — No. 13 — 4/28/2007
POSITIONS AVAILABLE
POSITIONS AVAILABLE
MEDIUM SIZE TULSA LAW FIRM expanding into
real estate area seeking experienced title examiner.
Submit resume and salary requirements in confidence
to Box “A,” Oklahoma Bar Association, P.O. Box 53036,
ASSOCIATE ATTORNEY wanted with 2-5 years experience in civil litigation and domestic law. Northeast
Oklahoma law firm with diverse client background
seeks right candidate looking for more than just a paycheck and an opportunity to grow with the firm. Must
be willing to role up your sleeves and provide clients
with high degree of attention to detail, customer
service and quality work. Prefer persons looking to
establish roots in a 30,000+ community and who possess a high degree of ethics and unquestionable
integrity. Compensation package commensurate with
experience and based on performance. Send resume,
cover letter outlining previous experience and
corresponding salary history, and short writing sample
to Box “I,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152. Incomplete submissions
will not be considered.
SMALL OKLAHOMA CITY FIRM WITH HEAVY
CASE LOAD seeks Associate with experience in workers’ compensation, Social Security disability and civil
litigation. Firm practice focuses in areas of workers’
compensation, Social Security disability and personal
injury. All contacts will be kept confidential. Compensation package commensurate with experience and
performance. Send Resume and writing sample to Box
“X,” Oklahoma Bar Association, P.O. Box 53036,
THE PAWNEE NATION OF OKLAHOMA TAX COMMISSION seeks applicants for Tax Attorney. Position
Summary: Provide legal counsel and technical assistance to the Pawnee Nation Tax Commission on questions of law, procedure and enforcement of the Pawnee
Nation Revenue and Taxation Code. Qualifications:
Law Degree and a member in good standing of any
State Bar Association. Experience as an attorney in the
field of taxation, or, at least five (5) years of experience
in a related field. Must be able to relate and work with
all resource people and departments (local, state and
federal) for the interest of the people, community and
tribal government. Closing Date: May 31, 2007. Send
resume and letters of recommendations to: Lily D.
Harms, Tax Administrator, P.O. Box 438, Pawnee, OK
74058, (918) 762-3624 ex. 13, or Email: [email protected].
OKC AV FIRM SEEKS associate with 2-5 yrs. Experience. The attorney must be a motivated self starter.
This position allows an attorney to handle his or her
own case load with supervision. An associate is
needed with experience in insurance defense, workers
compensation defense and insurance subrogation.
Send resume and salary requirements to Box “N,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
OKC AV RATED LAW FIRM seeking self-motivated
associate attorney with 3-7 years experience for an
immediate position. Primary practice areas are general
civil & commercial defense practice. First chair trial
experience preferred and excellent research and communication skills a must. Submit a confidential
resume, references, writing sample and salary requirements to Box “S,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.
ATTORNEY: One year Attorney with possibility of permanent position with Insurance Company Staff Counsel office in Tulsa. Responsibilities include first-chair
trial, arbitration and mediation. Must be member of
Oklahoma Bar. Minimum five years’ tort litigation
experience desirable, preferably in insurance defense.
Competitive salary. Submit resume to: Box “W,”
City, OK 73152.
Vol. 78 — No. 13 — 4/28/2007
AV-RATED FIRM with emphasis in insurance defense
seeks research and writing attorney with 0-3 years
experience. Proven research and writing skills
required. Send resume, writing sample(s), and salary
requirements to Administrator, 525 S. Main, 12th Fl.,
Tulsa, OK 74103.
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
DOWNTOWN OKC AV RATED LAW FIRM has an
immediate opportunity for an of counsel relationship
for an attorney with his or her own clients. Strong
opportunities for referral work will exist. Offices, facilities, technology and benefits are outstanding. Submit
resume to Box “M,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
OIL AND GAS ATTORNEY - SandRidge Energy,
Inc., a growing, dynamic oil and gas company
headquartered in Oklahoma City, is seeking to
fill a Staff Attorney position. This position
requires 5+ years experience with a working
knowledge of drilling agreements, operating
agreements, MSA’s, title work, ROW agreements, lease analysis, poolings and various other
oil and gas contracts. Membership in either the
Oklahoma, Texas, Arkansas or Louisiana Bar
Association is required. SandRidge provides an
excellent compensation and benefits package.
Qualified candidates please submit your resume
on-line at [email protected] and list “Attorney” in
the subject line. SandRidge Energy is an equal
opportunity employer.
1163
POSITIONS AVAILABLE
POSITIONS AVAILABLE
DOWNTOWN Oklahoma City AV-rated law firm,
seeks a self-motivated associate with 2-4 years of experience in insurance defense and personal injury-related
cases. Responsibilities include depositions, research,
discovery, and trial work. Salary commensurate with
experience. Reply to Box “J,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
OKLAHOMA CITY COMPANY seeks general counsel.
Experience in corporate law including contracts, leases
and employment law. 5 to 15 years previous experience. Please respond to Box “V,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
Commercial Transactions Attorney
Headquartered in Oklahoma City, Tronox is the world’s
third-largest producer and marketer of titanium dioxide
pigment, with an annual production capacity of 624,000
tonnes. Titanium dioxide pigment is an inorganic white
pigment used in paint, coatings, plastics, paper and
many other everyday products. The company’s five
pigment plants, which are located in the United States,
Australia, Germany and the Netherlands, supply
high-performance products to more than 1,100
customers in approximately 100 countries. In addition,
Tronox produces electrolytic products, including sodium
chlorate, electrolytic manganese dioxide, boron
trichloride, elemental boron and lithium manganese
oxide. Position: Tronox is seeking a corporate transactions attorney to join its team. The incumbent will work
with management to handle a variety of legal issues
related to contracts, financial transactions, real estate,
mergers and acquisitions and other areas. The position
will also analyze applicable laws and regulations,
determine their impact on the company and develop the
company’s position on related issues. As part of the
Tronox, legal team the incumbent will collaborate with
the Tronox’s in-house legal staff and outside counsel in
handling various legal issues related to the company’s
business Requirements: A Law Degree from an
accredited university • Licensed member in good
standing of relevant state bar • Three to seven years of
relevant law firm and/or in-house corporate experience
• Prior experience with financial transactions is
preferred • Knowledge of applicable laws and
regulations • Experience as a collaborator in an
organizational environment having numerous groups
with diverse needs and changing priorities • Proven
success advising all levels of management with a
consultative approach • Ability to prioritize and
organize multiple projects • Excellent verbal and written
communication skills. Interested applicants should
submit a copy of their resume to [email protected]/
careers. To be considered for this position, the
application must reference Position Number
TRX0703-027.
AV RATED TULSA LAW FIRM seeks attorney with 3-5
years experience. Primary responsibilities include
research and writing in areas of ERISA, employment,
and real estate law. Flexible hours possible. Submit
resumes and references to Box “U,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
1164
SMALL OKLAHOMA CITY FIRM WITH HEAVY CASE
LOAD seeks associate with experience in personal injury,
criminal defense and civil litigation. Our firm practice
focuses mainly in personal injury, family practice, criminal practice and immigration. All contacts will be kept
confidential. Compensation package commensurate with
experience and performance. Send resume to Box “R,”
City, OK 73152.
Immediate Opening-AIRCRAFT TITLE ESCROW
AGENT/AIRCRAFT TITLE INSURANCE AGENT;
requirements: law degree with a minimum of 1–year
legal experience. Aircraft transaction experience is a
plus; excellent benefits through Fortune 500 parent
company. Please send resume in confidence, salary
requirements and availability by mail, fax or email to:
Aero Records & Title Co., P.O. Box 19246, Oklahoma
City, OK 73144, Attn: L. Smith or FAX: (405) 685-4215 or
email to: [email protected]
FOR RENT
FOR RENT/LEASE SHANGRI-LA COUNTRY
ESTATES CONDO Fully Furnished One bedroom
condo. Golf, Tennis, Swimming Pool, Private Gated
Entry. Rent /Lease or special Lease. (405) 232-2218, Box
42402, Oklahoma City, OK 73123.
CLASSIFIED INFORMATION
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 ____ ,
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
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.
Vol. 78 — No. 13 — 4/28/2007
Vol. 78 — No. 13 — 4/28/2007
1165
OBA/CLE & OBA/MAP present
The New Lawyer Experience:
Hit the Ground Running
Tulsa
Oklahoma City
DATE & LOCATION:
May 8, 2007
Tulsa County Bar Association
1446 S. Boston
DATE & LOCATION:
May 10, 2007
Oklahoma Bar Center
1901 N. Lincoln Blvd.
CLE CREDIT:
TUITION:
CANCELLATION
POLICY:
This course is not eligible for mandatory CLE credit.
This is an informational course.
FREE but preregistration is required. Walk-ins will
not be accepted. Please e-mail Mark at [email protected]
with your name, OBA number, and the location where
you will attend, or call (405) 416-7026.
Cancellations will be accepted at any time
prior to the seminar date. Please notify
OBA/CLE if you have registered but cannot
attend (405) 416-7026.
Who Should Attend the New Lawyer Experience?
* New admittees who will be opening their own practices
* Experienced lawyers who are leaving employment to open
their own practices
* Young lawyers who wish to improve their law office operations
* Lawyers considering a change in a practice setting
Program Planner/Moderator — Jim Calloway
Director, OBA Management Assistance Program, Oklahoma City
8:30 a.m. Registration
1166
9:00
OPENING A BUSINESS
a. Resources for starting a law practice
b. Being an employee versus the business owner
c. Business entity selection
d. Physical location/practice setting options
e. Liability insurance and other aspects of risk management
f. Business planning
Jim Calloway
9:50
Break
10:00
MANAGEMENT - MANAGING YOUR FINANCES, YOUR FILES, AND YOUR STAFF
a. Profit, loss, and the importance of good financial reports
b. Establishing practice areas
c. Setting fees
d. The importance of building work flow systems and tracking
work in progress
e. Client file management
f. Billing (retainers, mechanics of billing, “alternative billing,
” getting paid)
g. Disaster Planning
Jim Calloway
Vol. 78 — No. 13 — 4/28/2007
10:30
MANAGEMENT — MANAGING YOUR
FINANCES, YOUR FILES, AND YOUR STAFF
a. Profit, loss, and the importance of good
financial reports
b. Establishing practice areas
c. Setting fees
d. The importance of building work flow
systems and tracking work in progress
e. Client file management
f. Billing (retainers, mechanics of billing,
—“alternative billing,” getting paid)
g. Disaster Planning
Jim Calloway
10:50
Break
11:00
MANAGEMENT (CONTINUED)
THE CRITICAL NATURE OF GOOD
COMMUNICATION
a. Client communications - Easy in theory,
often hard in practice
b. Establishing reasonable client
expectations
c. Communication and dealing with
other attorneys
d. Communication with the court
e. Technology and communication tools
f. Dealing with “bad news” and
“bad clients”
Jim Calloway
11:30
ETHICS COUNSEL’S PERSPECTIVE
a. The role of Ethics Counsel
b. Most common questions
of the Ethics Counsel
c. Trustworthy Trust Accounts
d. File and document retention
e. Q & A
Gina Hendryx, OBA Ethics Counsel,
Oklahoma City
Noon
Lunch provided by
Oklahoma Attorneys
Mutual Insurance Company
12:30
Malpractice Insurance and
Other Risk Management Issues
1:00
PROFESSIONALISM IN THE
PRACTICE OF LAW
a. Your Actions and Appearance
b. Dealing with Clients
c. Dealing with Other Attorneys
d. Dealing with the Courts
Hon. Justice Steven W. Taylor, District 2,
Oklahoma Supreme Court, Oklahoma City
1:30
“REAL WORLD” LEGAL ETHICS
General Counsel’s Perspective
a. Ethical issues facing small firm lawyers
b. Simple guidelines for ethical conduct
c. Role of OBA General Counsel
d. Ethics resources
Dan Murdock, OBA General Counsel,
Oklahoma City
2:00
Break
2:15
MARKETING
a. Developing a marketing plan
b. Ethical marketing strategies
c. Differences in marketing vs. public relations
d. Budgeting - Marketing on a tight budget
or no budget
e. Generating referrals - Word of mouth
is your best marketing tool
f. Advertising: From the newspaper
to the Yellow Pages
g. Internet-based marketing
h. Analyzing your marketing efforts
Jim Calloway
TECHNOLOGY
a. Law office hardware, from computers
to copiers to phones
b. The small law firm technology software
shopping guide
c. Practice management software
d. Using technology to provide better client
services
e. The Internet and the 21st Century lawyer
— Online research and other resources
f. Mobile phones, PDAs and other gadgets.
What do you really need?
g. Q & A
Jim Calloway
3:30
Adjourn
Phil Fraim, President, Oklahoma Attorneys
Mutual Insurance Company, Oklahoma City
Full Name___________________________________________________________
Firm _______________________________________________________________
Address ____________________________________________________________
City ______________________________
Phone (
State ________Zip______________
) _______________________ E - Mail _________________________
Are you a Member of OBA? ❐ Yes ❐ No
Tulsa: May 8, 2007
Vol. 78 — No. 13 — 4/28/2007
OBA Bar#______________________
The New Lawyer Experience:
Hit the Ground Running
Oklahoma City: May 10, 2007
1167

Apr 28 - Oklahoma Bar Association

Transcription

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