Sept 15 - Oklahoma Bar Association

Transcription

Volume 78 u No. 25 u Sept. 15, 2007
Court Material
Update on New Ethics Rules
An OBA/CLE Webcast Seminar
DATE:
TIME:
LOCATION:
October 4, 2007
Noon
Your choice - any place with a computer!
CLE CREDIT:
This course has been approved by the Oklahoma Bar Association Mandatory
Continuing Legal Education Commission for 1 hour of mandatory CLE Credit,
including 1 hour of ethics. This is considered live MCLE seminar credit, not
online seminar MCLE credit. Questions? Call (405) 416-7006.
TUITION:
$50. No discounts. Register online at
www.legalspan.com/okbar/webcasts.asp
CANCELLATION
POLICY:
Cancellations, discounts, refunds, or transfers will not be accepted.
Amendments to the Oklahoma Rules of Professional Conduct will go into effect January 1,
2008. This webcast will highlight these changes with commentary and insight from the
chairs of the committee that drafted the revised rules.
Program Moderator
Gina Hendryx, Ethics Counsel, Oklahoma Bar Association, Oklahoma City
PROGRAM:
12 p.m.
12:50
Update on New Ethics Rules - A Panel Discussion
Dean Lawrence Hellman, Oklahoma City University School of Law,
Oklahoma City
Gary A. Rife, Rife & Walters, LLP, Oklahoma City
Mark Dixon, Works & Lentz, Inc., Tulsa
Adjourn
Register online at www.legalspan.com/okbar/webcasts/asp
2250
The Oklahoma Bar Journal
Vol. 78 — No. 25 — 9/15/2007
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, ImmediatePastPresident, 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/YoungLawyersDivision
BAR CENTER STAFF
John Morris Williams, ExecutiveDirector;
Dan Murdock, GeneralCounsel; Donita Bourns
Douglas, DirectorofEducationalPrograms;
Carol A. Manning, DirectorofPublicInformation;
Craig D. Combs, DirectorofAdministration;
Gina L. Hendryx, EthicsCounsel; Jim Calloway,
DirectorofManagementAssistanceProgram; Rick
Loomis,DirectorofInformationSystems; Beverly S.
Petry, AdministratorMCLECommission; Jane
McConnell, CoordinatorLaw-relatedEducation;
Janis Hubbard,FirstAssistantGeneralCounsel;
Loraine Dillinder Farabow and Janna D. Hall,
AssistantGeneralCounsels; Robert D. Hanks,
SeniorInvestigator; Sharon Orth, Ray Page and
Dorothy Walos,Investigators
EVENTS CALENDAR
SEPTEMBER
17
19
20
21
26
27
Nina Anderson, Manni Arzola, Jenn Barrett,
Debbie Brink,Melissa Brown, Brenda Card,
Sharon Dotson, Johnny Marie Floyd, Matt Gayle,
Susan Hall, Brandon Haynie, Suzi Hendrix, Misty
Hill, Debra Jenkins, Durrel Lattimore, Heidi
McComb, Renee Montgomery, Wanda ReeceMurray, Tracy Sanders, Mark Schneidewent,
Dana Shelburne, Laura Willis & Roberta
Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams
News & Layout Editor, Carol A. Manning
Editor, Melissa DeLacerda, Stillwater
Associate Editors: Steve Barnes, Poteau; Martha
Rupp Carter, Tulsa; Mark Curnutte, Vinita;
Luke Gaither, Henryetta; D. Renee Hildebrant,
Oklahoma City; John Munkacsy, Lawton; Julia
Rieman, Enid; James Stuart, Shawnee and Judge
Lori M. Walkley, Norman
NOTICE of change of address (which must be in
writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads,
news stories, articles and all mail items should be
sent to the Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152-3036.
Oklahoma Bar Association (405) 416-7000
Toll Free (800) 522-8065 FAX (405) 416-7001
Continuing Legal Education (405) 416-7006
Ethics Counsel (405) 416-7083
General Counsel (405) 416-7007
Law-related Education (405) 416-7005
Lawyers Helping Lawyers (800) 364-7886
Mgmt. Assistance Program (405) 416-7008
Mandatory CLE (405) 416-7009
OBJ & Public Information (405) 416-7004
Board of Bar Examiners (405) 416-7075
Oklahoma Bar Foundation (405) 416-7070
Vol.78—No.25—9/15/2007
OBA Alternative Dispute Resolution Section Meeting; 4 p.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Larry Yadon (918) 595-6607 or Barry Davis (405) 607-8757
Ginsburg Inn of Court; 5 p.m.; Oklahoma Bar Center, Oklahoma City;
Contact: Julie Bates (405) 691-5080
OBF Trustees Meeting; 12 p.m.; Oklahoma History Center, Oklahoma City;
Contact: Nancy Norsworthy (405) 416-7070
OBA Work/Life Balance Committee Meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City; Contact: Melanie Jester (405) 609-5280
OBA Legal Intern Committee Meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City; Contact: H. Terrell Monks (405) 733-8686
OBA Board of Governors Meeting; Eufaula; Contact: John Morris
Williams (405) 416-7000
OBA Law Day Committee Meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Giovanni Perry
(405) 601-2222
OBF Trustees Meeting; Oklahoma History Center, Oklahoma City; Contact:
Nancy Norsworthy (405) 416-7070
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
2007 OBA Women in Law Conference; Skirvin Hotel, Oklahoma City;
Contact: (405) 416-7006
Oklahoma City Estate Planning Council Meeting; 7:30 a.m.; Crown
Plaza Hotel; Oklahoma City; Contact: Amy J. Sine (405) 235-7000
New Attorney Admission Ceremony; OCU – 9 a.m.; OU – 10 a.m.;
TU – 11 a.m.; House of Representatives, State Capitol; Contact: Board of Bar
Examiners (405) 416-7075
Oklahoma Hispanic Bar Network Meeting; 3 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Saul
Olivarez (405) 227-9700
OCTOBER
5
Oklahoma Trial Judges Association Meeting; 12 p.m.; Oklahoma Bar
Center, Oklahoma City; Contact: Judge Barbara Swinton (405) 713-7109
For more events go to www.okbar.org/news/calendar.htm
The Oklahoma Bar Association’s official Web site:
www.okbar.org
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar
Association. All rights reserved. Copyright© 2007 Oklahoma Bar Association.
The design of the scales and the “Oklahoma Bar Association” encircling the
scales are trademarks of the Oklahoma Bar Association. Legal articles carried
in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED FOUR TIMES A
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MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND BIMONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR
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IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA
BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS.
TheOklahomaBarJournal
2251
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S E RV I N G T U L S A & O K L A H O M A C I T Y
2252
Vol. 78 — No. 25 — 9/15/2007
Oklahoma Bar Association
table of
contents
Sept. 15, 2007
• Vol. 78
• No. 25
page
2251
2254
2257
2267
2309
2339
2340
Events Calendar
Index to Court Opinions
Supreme Court Opinions
Court of Criminal Appeals Opinions
Court of Civil Appeals Opinions
OBA Nominating Petitions Filed
OBA Annual Meeting 2007
OBA/CLE Track Programming
Annual Meeting Registration Form
OBA Attorney Art Show
American Idol— OBA Style
2345 OBA Legal Ethics Advisory Panel Issues Opinion
2351 Mandates
2353Disposition of Cases Other Than By Publication
Vol. 78 — No. 25 — 9/15/2007
2253
Index To Opinions Of Supreme Court
Bank of America, N.A., formerly Nationsbank, N.A., Plaintiff, v. Holley Heights Development, Inc.; aka J.C. Development, Inc. an Oklahoma Corporation; Appellee, James H.
Cooper; Cooper Properties, Inc., an Oklahoma Corporation; and Garnett Burkhalter
Sr.; Richard H. Morton; Action Distributors of Oklahoma, Inc.; Gilcrease Hills Area
Association; Holley Heights Homeowners Association; Defendants and Judith A.
Colbert, Appellant. No. 103,969...................................................................................................... 2257
2007 OK 65 STATE OF OKLAHOMA, ex rel. Oklahoma Bar Association, Complainant, v.
ROLAND VINCENT COMBS, III, Respondent. SCBD No. 5219............................................... 2257
2007 OK 66 In the Matter of the Reinstatement of Patricia J. Tubb to Membership in the
Oklahoma Bar Association and to the Roll of Attorneys. SCBD No. 5238............................... 2264
Index To Opinions Of Court Of Criminal Appeals
2007 OK CR 33 RENE GOMEZ, Appellant, v. STATE OF OKLAHOMA, Appellee.
No. F-2005-526.................................................................................................................................... 2267
2007 OK CR 34 RICKY RAY MALONE, Appellant, v. STATE OF OKLAHOMA, Appellee.
No. D-2005-600................................................................................................................................... 2274
Index To Opinions Of Court Of Civil Appeals
CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS...........................2309
CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS...........................2310
2007 OK CIV APP 74 FLEMING AND GANDALL, PLLC, Certified Public Accountants,
Plaintiff/Appellee, v. TOWN OF CASHION, OKLAHOMA, Defendant/Appellant.
No. 103,561.......................................................................................................................................... 2311
2007 OK CIV APP 75 IN THE MATTER OF THE GUARDIANSHIP OF J.J.H., an alleged
deprived child. JOIE LYNN BART and STEPHAN EUGENE BART, Petitioners/
Appellees, v. BOBBY HAMBY, Respondent/Appellant. No. 103,287........................................ 2314
2007 OK CIV APP 76 T.W. SNYDER and CARYN SNYDER, Plaintiff/Appellees, v. JERRY
STANDIFER, Defendant/Appellant. No. 103,484, Comp. w/103,485....................................... 2320
2007 OK CIV APP 77 IN THE MATTER OF J.C., and J.C., deprived children who are less
than 18 years of age. THE STATE OF OKLAHOMA, Petitioner/Appellee, v. KATHY
SHANNON and CALVIN CHARLES, Respondents/Appellants. No. 103,645..................... 2322
2007 OK CIV APP 78 JAMES RAY FRIEND, Plaintiff/Appellant, v. MANDY L. TESORO,
now ROBERTSON, Defendant/Appellee. No. 104,281................................................................ 2328
2007 OK CIV APP 79 CHESAPEAKE ENERGY MARKETING, INC., Plaintiff/Appellee,
v. STATE BOARD OF EQUALIZATION and THE OKLAHOMA TAX COMMISSION,
Defendants/Appellants. No. 104,391............................................................................................. 2329
2007 OK CIV APP 80 OCTAVIO RODRIQUEZ, Petitioner, v. JOHNSTON’S PORT 33,
GRAY INSURANCE COMPANY, and THE WORKERS’ COMPENSATION COURT,
Respondents. No. 103,603................................................................................................................. 2332
2254
Vol. 78 — No. 25 — 9/15/2007
2007 OK CIV APP 81 IN THE MATTER OF THE ESTATE OF LUTHER ELMER NELSON,
Deceased. MICHAEL ELMER NELSON, Appellant, v. DEBORAH L. BILLINGS,
PERSONAL REPRESENTATIVE OF THE ESTATE OF LUTHER ELMER NELSON,
Appellee. No. 103,816........................................................................................................................ 2333
2007 OK CIV APP 82 NAT D. RHYNES and JOY A. RHYNES, a/k/a JOY SANDERS
RHYNES, Plaintiffs/Appellants, v. EMC MORTGAGE CORPORATION, BANKERS
TRUST COMPANY OF CALIFORNIA, NA and UNITED COMPANIES LENDING
CORPORATION, Defendants/Appellees. No. 104,177�� 2336
Vol. 78 — No. 25 — 9/15/2007
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Vol. 78 — No. 25 — 9/15/2007
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)
Bank of America, N.A., formerly
Nationsbank, N.A., Plaintiff, v. Holley
Heights Development, Inc.; aka J.C.
Development, Inc. an Oklahoma Corporation;
Appellee, James H. Cooper; Cooper
Properties, Inc., an Oklahoma Corporation;
and Garnett Burkhalter Sr.; Richard H.
Morton; Action Distributors of Oklahoma,
Inc.; Gilcrease Hills Area Association; Holley
Heights Homeowners Association;
Defendants and Judith A. Colbert, Appellant.
No. 103,969. August 21, 2007
ORDER
Appeal is withdrawn from assignment to
Court of Civil Appeals, Tulsa Divisions and
assigned to Court of Civil Appeals, Oklahoma
City Divisions.
DONE BY ORDER OF THE SURPREME
COURT this 21st day of August, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
2007 OK 65
STATE OF OKLAHOMA, ex rel. Oklahoma
Bar Association, Complainant, v. ROLAND
VINCENT COMBS, III, Respondent.
SCBD No. 5219. September 11, 2007
BAR DISCIPLINARY PROCEEDING
¶0 In this disciplinary proceeding against a
lawyer, the complaint alleges in two counts
unprofessional conduct deemed to warrant disciplinary sanctions. A trial panel of the Professional Responsibility Tribunal found that
respondent’s actions merit the imposition of
professional discipline. It recommended that
respondent be suspended from the practice of
law for two years and one day and that he pay
the costs of this proceeding. Upon de novo
review of the evidentiary materials presented to
the trial panel,
RESPONDENT IS ORDERED DISCIPLINED
BY SUSPENSION FOR A PERIOD OF NINETY
DAYS AND DIRECTED TO PAY THE COSTS
OF THIS PROCEEDING. THE LATTER SHALL
BE DUE NOT LATER THAN NINETY DAYS
AFTER THIS OPINION BECOMES FINAL.
Vol. 78 — No. 25 — 9/15/2007
Janis Hubbard, Assistant General Counsel,
Oklahoma Bar Association, Oklahoma City,
Oklahoma, for Complainant.
Jack S. Dawson, Esq., Oklahoma City, Oklahoma, for Respondent.
OPALA, J.
¶1 In this disciplinary proceeding against a
lawyer the issues to be decided are: (1) Does the
record submitted for our examination provide
sufficient evidence for a meaningful de novo
consideration of the complaint and of its disposition?1 and (2) Is suspension for two years and
one day together with the payment of costs an
appropriate disciplinary sanction for respondent’s breach of acceptable professional demeanor? We answer the first question in the affirmative and the second in the negative.
I
INTRODUCTION TO THE RECORD
¶2 The Oklahoma Bar Association (Bar) commenced this disciplinary proceeding on 25
August 2006 against Roland Vincent Combs
(respondent or Combs), a licensed lawyer, by
filing a formal complaint in accordance with the
provisions of Rule 6.1 of the Rules Governing
Disciplinary Proceedings (RGDP).2 The complaint alleges in two counts violations of the
RGDP and of the Oklahoma Rules of Professional Conduct (ORPC).3 A trial panel of the
Professional Responsibility Tribunal (the trial
panel or panel) conducted hearings (the PRT
hearings) on 14 November 2006 and 29 November 2006. The parties submitted no stipulations.
¶3 Upon conclusion of the hearing and after
consideration of the testimony and admitted
exhibits, the trial panel issued its report finding
that respondent violated certain provisions of
the rules of professional conduct. The panel recommended that the respondent be suspended
from the practice of law for two years and one
day and that he pay the costs taxed in this
proceeding.
II
THE RECORD BEFORE THE COURT
PROVIDES SUFFICIENT EVIDENCE FOR A
MEANINGFUL DE NOVO
2257
CONSIDERATION OF ALL FACTS
RELEVANT TO THIS PROCEEDING
¶4 In a Bar disciplinary proceeding the court
functions as an adjudicative licensing authority
that exercises exclusive original cognizance.4 Its
jurisdiction rests on the court’s constitutionally
vested, nondelegable power to regulate the
practice of law, including the licensure, ethics,
and discipline of this state’s legal practitioners.5
In deciding whether discipline is warranted and
what sanction, if any, is to be imposed for the
misconduct charged, the court conducts a fullscale, non-deferential, de novo examination into
all relevant facts,6 in which the conclusions and
recommendations of the trial panel are neither
binding nor persuasive.7 In this undertaking we
are not restricted by the scope-of-review rules
that govern corrective relief on appeal or on
certiorari, proceedings in which another tribunal’s findings of fact may have to be left undisturbed by adherence to law-imposed standards
of deference that test the legal correctness of a
lower tribunal’s fact findings.8
¶5 The court’s duty can fully be discharged
only if the trial panel submits a complete record
of the proceedings.9 Our initial task is to ascertain whether the tendered record is sufficient to
permit (a) this court’s independent determination of the facts and (b) its crafting of an appropriate discipline. The latter is that which (1) is
consistent with the discipline imposed upon
other lawyers who have committed similar acts
of professional misconduct and (2) avoids the
vice of visiting disparate treatment on the
offending lawyer.10
¶6 Having carefully scrutinized the record
submitted to us in this proceeding, we
conclude that it is adequate for our de novo
consideration of respondent’s alleged professional misconduct.
III
THE CHARGES AGAINST RESPONDENT
A. Count I — The Randles Complaint
¶7 In August of 2004 Kenard Randles (Randles) hired the respondent Combs to probate the
estate of his deceased wife, Pamela Randles,
and paid Combs a retainer of $1,800. Randles
was not named the personal representative in
his wife’s will. It was Mr. Anthony Jameson
(Jameson), the decedent’s brother, who was
appointed personal representative of the
estate.11
¶8 In connection with the estate’s probate
Combs brought suit for the wrongful death of
the decedent and entered into a contingent fee
2258
agreement with Jameson under which 35% of
any funds collected would be retained by Combs
and the remaining 65% would be deposited to
the estate’s credit. Combs settled the wrongful
death claim for $10,000. Of the total amount
recovered, $3,500 belonged to Combs and $6,500
to the estate.
¶9 A minimum balance of $6,500 should have
remained in Combs’ trust account as the amount
belonging to the estate of Pamela Randles. The
recovered $10,000 was deposited in Combs’
trust account in early May 2005. Within that
month the balance in the trust account dropped
to $500.73. During the month of June 2005
Combs’ trust account balance fell as low as
$31.31. The $6,500 due the estate was paid in
June of 2006, after the Bar had begun investigating Combs’ trust account handling in connection with this and another complaint.
¶10 Combs fully admits to and apologizes for
withdrawing an excessive amount of money
from the trust account and placing it in his operating account. During the time the balance fell
below $6,500 Combs states that he was involved
in activities connected with the opening a law
office in Dallas, Texas and spent a considerable
amount of time away from his Oklahoma City
office. Combs testified that he relied on his
Oklahoma City staff to deal with certain office
affairs and stated that the removal of excessive
funds from the trust account was caused by an
error in communication between him and his
staff by which he was led to believe he was
entitled to the money as a fee. The staff testified
that Combs was notified of the error within two
months of the occurrence. Combs contends that
he was not informed until much later, although
the specific time frame within which he acquired
the knowledge was not revealed.
¶11 Jameson testified that he phoned Combs
periodically to inquire about the status of the
account and of the estate and was told Combs
was continuing to work on the matter. Jameson
believed the $6,500 had been continuously
maintained in the trust account.12
¶12 In relation to count one the Bar alleges
violations of the provisions of ORPC Rule 1.15,13
ORPC Rule 8.1(b),14 ORPC Rule 8.4(a),15 ORPC
Rule 8.4(c),16 RGDP Rule 1.3,17 RGDP Rule 1.4,18
and RGDP Rule 5.2.19
¶13 Combs admits to a violation of ORPC
Rule 1.15 (mishandling of funds) and in essence,
concurrently with the specified admission, also
admits to violating ORPC Rule 8.4(a), RGDP
Rule 1.3, and RGDP Rule 1.4(b). We accept
Combs’ admission and find from clear and con-
Vol. 78 — No. 25 — 9/15/2007
vincing evidence that his conduct, which violated those rules, constitutes grounds for the
imposition of professional discipline. We employ
three different culpability standards in evaluating mishandling of funds. Those are called (1)
commingling;20 (2) simple conversion;21 and (3)
misappropriation, i.e., “theft by conversion or
otherwise.”22 The degree of culpability ascends
from the first to the last. Each must be proved
by clear and convincing evidence.23
¶14 Commingling occurs when the client’s
funds are combined with the lawyer’s personal
funds. Complete separation of a client’s money
from that of the lawyer’s is the only way for
maintaining proper accounting.24 When an attorney receives money, part of which is to be paid
to a third person and part of which is for the
lawyer’s fee, all the funds not clearly identifiable as those of the lawyer must be kept
separate.25
¶15 The second level of culpability is simple
conversion. Rule 1.4(b) establishes that simple
conversion occurs when an attorney applies a
client’s money to a purpose other than that for
which it came to be entrusted to the lawyer.26
¶16 The third level of culpability is misappropriation, i.e. “theft by conversion or otherwise.” This
occurs when an attorney has purposely deprived
a client of money through deceit and fraud.27 A
lawyer found guilty of intentionally inflicting
grave economic harm in mishandling clients’
funds is deemed to have committed this most
grievous degree of offense.28 A finding that the
attorney did so intentionally, regardless of
exceptional mitigating factors,29 mandates the
imposition of harsh discipline — i.e.
disbarment.30
¶17 The Bar and the trial panel viewed Combs’
conduct as rising to the third level of culpability
— to that of misappropriation. We disagree.
There is no evidence that Combs purposely
deprived Jameson of the funds by deceit or
fraud or that Combs intentionally inflicted on
Jameson grave economic harm. There is an
admission of guilt and evidence supporting culpability for commingling and simple conversion. Combs transferred the money from the
trust account to his operating account and used
the money for personal expenses.
¶18 A violation of ORPC Rule 8.1(b) (a knowing failure to respond to a demand for information in a disciplinary matter) has been charged
by the Bar. The trial panel did not rule on a violation of ORPC Rule 8.1(b) and Combs neither
admits nor denies a violation. We must not be
unmindful that the Bar bears the burden of
Vol. 78 — No. 25 — 9/15/2007
proving facts by clear and convincing evidence.31
Our examination of the record shows an absence
of clear and convincing evidence that he
knowingly failed to produce information or that
Combs has continued to fail to produce
information.32
¶19 The trial panel found Combs guilty of a
violation of ORPC Rule 8.4(c) (that he engaged
in conduct involving dishonesty, fraud, deceit
or misrepresentation). Combs denies this violation and we do not find clear and convincing
evidence that the respondent acted dishonestly
or with the intent to defraud or deceive. The
facts indicate that the money was removed from
the trust account by error under the mistaken
belief that the funds constituted an earned fee.
The Bar contends that Combs made misrepresentations to Jameson by claiming to be “still
working on [the estate].” A misrepresentation
must be shown by clear and convincing evidence that the declarant had an underlying
motive (i.e., bad or evil intent) for making the
statement.33 We find the record devoid of not
only improper motive but also of clear evidence
that shows a misrepresentation. Combs states
he did not immediately learn that the money
had been removed from the trust account. When
he gained that knowledge is in dispute.34 Combs’
responses could have been given during a time
when he was unaware of the error. Evidence
shows the estate is currently open and still
being represented by Combs, meaning that he
was and is still working on the matter. We find
there is an absence of clear and convincing
evidence to support an ORPC Rule 8.4(c)
violation.
¶20 The trial panel did not rule on a violation
of RGDP Rule 5.2 (that Combs, in his response
to the Bar’s grievance, did not make a full and
fair disclosure of all the facts and circumstances
pertaining to his alleged misconduct or that
Combs made a deliberate misrepresentation in
his response) and Combs neither admits nor
denies a violation. As we view the evidence, it
shows Combs was extremely negligent in his
accounting procedures and thus the material
provided in regards to his trust account was
very disorganized. That his accounting was
extremely difficult, if not impossible, to audit
does not mean that he did not provide all information or that he deliberately misrepresented
the situation’s reality. Combs has admitted to
his mistakes and failures. We do not find clear
and convincing evidence of a RGDP Rule 5.2
violation.
2259
B. Count 2 — The “Rasel” Complaint
¶21 In June of 2005, in an agreement titled
Commercial Purchase and Sale Agreement,
Rasel A. Sheikh (Rasel) and Ayesha Khaton
Sheikh (Ayesha) sold land owned by them to a
third party. Located on this land were convenience stores owned by R & N Distributing Inc.
(R & N).35 The Commercial Purchase and Sale
Agreement identified Rasel and Ayesha as
“Sellers” and identified respondent Combs as
“Sellers’ Attorney.” The agreement provided the
land sale proceeds, $316,000, should be
deposited in Combs’ trust account.
¶22 In July of 2005 Rasel and Ayesha entered
into a second agreement in connection with the
land sale, titled Agreement Regarding Sale of
Real Estate Property. Unlike the Commercial
Purchase and Sale Agreement, Combs was identified as the attorney for R & N, though as in the
case of the first agreement, the land sale proceeds were to be held in a trust account managed by Combs.36 The Agreement Regarding
Sale of Real Estate Property further provided
that the proceeds from the land sale were to be
used to satisfy tax liabilities and other encumbrances associated with the R & N company37
and that all disbursements from the trust account
were to be approved by Rasel, Ayesha and R &
N. After all disbursements were made, 75% of
the remaining balance would be paid to Rasel
and 25% to Ayesha.38
¶23 Combs, in accordance with the agreement, paid taxes and other expenses of R & N.
Included in the disbursements was a $200,000
check to Rahman. The $200,000 was authorized
for release in a letter to Combs from Ayesha.39
The letter stated that Ayesha was acting on
behalf of Rasel because his whereabouts at that
time were unknown.40 Combs also withdrew
$10,000 for his own personal use. Rahman, as
president of R & N, gave Combs permission to
withdraw the money as a loan, but Combs did
not receive permission from either Rasel or
Ayesha.41
¶24 The accounting records associated with
the trust account were very poorly kept, Combs
admits to this failure. Due to the extremely disorganized state of the records it is difficult accurately to state figures disbursed or transferred
from the account. We feel it is sufficient to say
that funds were transferred by Combs from the
trust account to his personal account without
permission from Rasel, Ayesha, and R & N, as
required in the Agreement Regarding Sale of
Real Estate Property.
2260
¶25 Rasel and Ayesha claim Combs was their
attorney. Combs claims he represented solely R
& N.42 We agree with the trial panel that regardless of the confusion surrounding representation, Combs was aware he was acting as an
escrow for the proceeds from the land sale and,
from the Agreement Regarding Sale of Real
Estate, knew that Rasel and Ayesha had a valid
interest in the accounting of those proceeds.43
¶26 Rasel claims he requested an accounting
of the trust account funds in August and was
not provided one. Instead, he was informed by
Combs that “nothing was spent.” Rasel further
states that after discovering Combs disbursed
$200,000 to Rahman he hired attorney Craig
Brown to sue Combs. In December of 2005
Rasel, through Mr. Brown, requested an accounting of the trust account funds. Rasel claims that
he was told by Combs’ staff he would receive an
accounting and the money in the trust account
only if he agreed to fire his attorney.
¶27 Combs denies receiving any request from
Ayesha or Rasel for an accounting prior to the
request from Mr. Brown in December 2005.
Combs admits that this accounting was not provided but contends he attempted to provide the
accounting to Mr. Brown first. His appointment
with Mr. Brown was canceled by the latter, and
second, he saw a letter from Rasel to Mr. Brown
terminating the latter’s employment.44 Combs
states that shortly thereafter he was notified of
the Bar’s grievance filed against him by Mr.
Brown and thus quickly furnished an
accounting through his lawyer, Mr. Bill Price.
Combs and his staff further deny making any
demand for Rasel to terminate Mr. Brown’s representation.
¶28 In April of 2006 Rasel, Ayesha and Combs
entered into a Settlement Agreement as a result
of which the civil lawsuit against Combs was
dismissed and the Bar grievance withdrawn.45
¶29 The Bar alleges in count two that respondent violated the provisions of ORPC Rule
1.8(h),46 ORPC Rule 1.15, ORPC Rule 8.1(b),
ORPC Rule 8.4(a), ORPC Rule 8.4(c), ORPC
Rule 8.4(d),47 RGDP Rule 1.3, RGDP Rule 1.4(b),
and RGDP Rule 5.2.48
¶30 Combs specifically admits to a violation
of ORPC Rule 1.15 (mishandling of funds) and
in essence, concurrently with the specified
admission, also admits to violations of ORPC
Rule 8.4(a), RGDP Rule 1.3, and RGDP Rule
1.4(b). We accept Combs’ admission and find by
clear and convincing evidence that his conduct
violated those rules and constitutes grounds for
the imposition of professional discipline. Our
Vol. 78 — No. 25 — 9/15/2007
discussion in regards to the violation of Rule
1.15 is the same with respect to count two as it
is to count one. We find a lack of clear and convincing evidence that Combs purposely
deprived Rasel and Ayesha of the funds by
deceit or fraud or that Combs intentionally
inflicted grave economic harm. We find Combs
guilty of commingling and simple conversion.
¶31 The Bar asserts and the trial panel found
Combs guilty of a violation of ORPC Rule 1.8(h)
(that he made an agreement prospectively limiting his liability to a client for his personal malpractice, or settled a claim for such liability with
an unrepresented client or former client without
first advising that person in writing that independent representation is appropriate in connection therewith) in connection with the Settlement Agreement. We disagree. Rule 1.8(h) deals
with limitation of liability and is comprised of
two components. The first of these bars a lawyer
from prospectively limiting his liability for personal malpractice. This means that a lawyer
may not enter into an agreement, prior to providing legal services, by which he reduces, or
releases himself of, future liability for personal
malpractice associated with those legal services.
The second component states that if a lawyer
settles a claim for past liability for personal malpractice, the lawyer must first advise the client
or former client, in writing, to seek independent
representation in connection with the settlement. A lawyer is not absolutely prohibited
from settling a claim of personal malpractice
liability, but rather is forbidden from doing so
without first advising the lay client of the recommended presence of independent representation.49 The Settlement Agreement in no way
limits Combs’ liability for any future legal services provided to Rasel and Ayesha. Nor was
the settlement entered into without the advice
of independent legal counsel. Rasel and Ayesha
were represented by Mr. Brown. We find no
violation of ORPC Rule 1.8(h).
¶32 In regards to the alleged violations of
ORPC Rule 8.1(b) and RGDP Rule 5.2 under
count two, our discussion is consistent with that
made under count one. Our examination of the
record shows an absence of clear and convincing evidence to support the allegations.
¶33 The trial panel found Combs guilty of a
violation of ORPC Rule 8.4(c) (that he engaged
in conduct involving dishonesty, fraud, deceit
or misrepresentation). Combs denies this violation and we do not find clear and convincing
evidence that the respondent acted dishonestly
or with the intent either to defraud or to deceive.
Combs admits to converting the funds for his
Vol. 78 — No. 25 — 9/15/2007
own use while believing he had proper permission to do so. The Bar and the trial panel contend that Combs misrepresented the status of
funds to Rasel and refused to give him an
accounting. Combs denies receiving such
requests. Our view is that given the record evidence in regards to Rasel’s character50 his word
alone is not to be regarded as sufficient to establish clear and convincing proof of a violation.
¶34 The trial panel issued no specific ruling in
relation to a violation of ORPC Rule 8.4(d) (that
Combs engaged in conduct that was prejudicial
to the administration of justice) and Combs neither admits nor denies a violation. This rule,
properly understood, sanctions conduct that
interferes with the administration of “judicial
process.” It covers only severe interference with
judicial proceedings or conduct of such a severe
nature that it harms our system of representative litigation as a whole.51 We find an absence of
clear and convincing evidence to support this
allegation.
IV
MITIGATING CIRCUMSTANCES
¶35 Mitigating circumstances may be considered in assessing the appropriate quantum of
discipline.52 The record reveals factors to be
weighed for purposes of mitigation. It states
respondent: (1) has been practicing law since
1985 and has never been disciplined for professional misconduct, (2) has acknowledged and
apologized for his professional misconduct, (3)
has accepted full responsibility for actions and
no harm was caused to any client or third party
as a result of his professional misconduct, (4)
has made full restitution. We take these factors
into account in assessing the discipline to be
imposed on the respondent today.
V
RESPONDENT’S MISCONDUCT
WARRANTS A SUSPENSION OF HIS
LICENSE TO PRACTICE LAW FOR A
PERIOD OF NINETY DAYS; HE IS ALSO
DIRECTED TO PAY THE COSTS OF THIS
PROCEEDING
¶36 A government’s license to practice law is
conferred not for the benefit of the individual
licensee, but rather for that of the public.53 The
disciplinary process, including the imposition
of a sanction, is designed not to punish the
delinquent lawyer, but to safeguard the interests of the public, those of the judiciary and of
the legal profession.54 Disciplinary sanctions
serve not only to deter the offending lawyer
from committing similar acts in the future, but
2261
also operate to put others on notice that departures from ethical norms will not be tolerated.55
The measure of discipline imposed upon an
offending lawyer should be consistent with the
discipline visited upon other practitioners for
similar acts of professional misconduct.56
¶37 This court has pronounced varying levels
of discipline in matters involving mishandling
of client funds. The disciplinary range has
extended from censure to disbarment, depending in large part on the degree of harm to the
client.57 The trial panel has recommended that
respondent be suspended from the practice of
law for two years and one day. We find the recommended discipline too severe.58 The Bar has
not only failed to demonstrate Combs acted
intentionally to defraud or deceive, it has equally failed to show harm to any client. While no
two cases are identical, we find that a suspension for a period of ninety days,59 coupled with
imposition of liability for costs incurred in this
proceeding is an appropriate measure of discipline that is in keeping with precedent.60
VI
SUMMARY
¶38 In sum, the record bears clear and convincing proof that respondent’s participation in
unprofessional conduct violates the rules that
govern professional responsibility. After a thorough review of the record and upon due recognition of all the factors tendered in mitigation,
¶39 RESPONDENT IS ORDERED DISCIPLINED (1) BY SUSPENSION FOR A PERIOD
OF NINETY DAYS AND (2) BY IMPOSITION
OF COSTS OF THIS PROCEEDING, WHOSE
PAYMENT SHALL BE DUE NOT LATER
THAN NINETY DAYS AFTER THIS OPINION BECOMES FINAL.
¶40 Winchester, C.J., Edmondson, V.C.J., Hargrave, Opala and Kauger, JJ., concur
¶41 Watt, J., concurring in part and dissenting
in part
I would impose a public reprimand on this
respondent.
¶42 Taylor, J., dissenting
I would impose a greater discipline.
¶43 Colbert, J., not participating
1. The record consists of a transcript of the hearing held before a trial
panel of the Professional Responsibility Tribunal, exhibits offered by
both parties, which were admitted into evidence at the hearing, and the
trial panel’s report.
2. The Rules Governing Disciplinary Proceedings are found in 5 O.S.
2001, Ch.1, App. 1-A.The provisions of RGDP Rule 6.1 state:
2262
“The proceeding shall be initiated by a formal complaint prepared
by the General Counsel, approved by the Commission, signed by
the chairman or vice-chairman of the Commission, and filed with
the Chief Justice of the Supreme Court.”
3. The Oklahoma Rules of Professional Conduct are found in 5 O.S.
2001, Ch. 1, App. 3-A.
4. State ex rel. Okla. Bar Ass’n v. Leigh, 1996 OK 37, ¶11, 914 P.2d 661,
666; State ex rel. Okla. Bar Ass’n v. Eakin, 1995 OK 106, ¶8, 914 P.2d 644,
647; State ex rel. Okla. Bar Ass’n v. Bolton, 1994 OK 53, ¶15, 880 P.2d 339,
344; State ex rel. Okla. Bar Ass’n v. Donnelly, 1992 OK 164, ¶11, 848 P.2d
543, 545; State ex rel. Okla. Bar Ass’n v. Raskin, 1982 OK 39, ¶11, 642 P.2d
262, 265; In re Integration of State Bar of Okla., 1939 OK 378, 95 P.2d 113,
115.
5. Eakin, supra note 4 at ¶8, at 648; State ex rel. Okla. Bar Ass’n v.
Downing, 1990 OK 102, ¶12, 804 P.2d 1120, 1122-1123; Raskin, supra note
4 at ¶11, at 265-266.
6. State ex rel. Okla. Bar Ass’n v. Stubblefield, 1998 OK 141, ¶7, 766
P.2d 979, 982; Leigh, supra note 4; Eakin, supra note 4 at ¶8, at 647-648;
State ex rel. Okla. Bar Ass’n v. Lloyd, 1990 OK 14, ¶8, 787 P.2d 855, 858;
State ex rel. Okla. Bar Ass’n v. Cantrell, 1987 OK 17, ¶1, 734 P.2d 1292,
1293; State ex rel. Okla. Bar Ass’n v. Brandon, 1969 OK 28, ¶5, 450 P.2d
824, 827. Because this court’s cognizance of disciplinary jurisdiction cannot be shared with any other institution, every aspect of the Bar’s adjudicative process must be revisited by our de novo consideration. The
attribute of nondelegable jurisdiction serves to distinguish the conduct
of Bar disciplinary functions from trial de novo — a retrial in a different
court — or even from de novo appellate review on the record, which
stands for an independent, non-deferential re-examination of another
tribunal’s record. De novo re-examination means that the court redecides
all issues of fact and law anew as if none has ever been resolved
before.
7. Eakin, supra note 4 at ¶8, at 648; Raskin, supra note 4 at ¶11, at 265.
The court’s range of options in a disciplinary proceeding is set forth in
RGDP Rule 6.15(a), 5 O.S. 2001, Ch.1, App. 1-A, which states in pertinent
part:
“The Supreme Court may approve the Trial Panel’s findings of fact
or make its own independent findings, impose discipline, dismiss the
proceedings or take such other action as it deems appropriate.”
8. Eakin, supra note 4 at ¶8, at 648; Bolton, supra note 4 at ¶15, at 344;
State ex rel. Okla. Bar Ass’n v. Farrant, 1994 OK 13, ¶7, 867 P.2d 1279,
1284. Accord, Levi v. Mississippi State Bar, 436 So. 2d 781, 782 (Miss.
1983).
9. The provisions of RGDP Rule 6.13, 5 O.S. 2001, Ch. 1, App.1-A,
state in pertinent part:
“Within thirty (30) days after the conclusion of the hearing, the Trial
Panel shall file with the Clerk of the Supreme Court a written report
which shall contain the Trial Panel’s findings of fact on all pertinent
issues and conclusions of law (including a recommendation as to discipline, if such is found to be indicated, and a recommendation as to
whether the costs of the investigation, record and proceedings should be
imposed on the respondent), and shall be accompanied by all pleadings,
a transcript of the proceeding, and all exhibits offered there at. . . .”
10. Eakin, supra note 4 at ¶9, at 648; Bolton, supra note 4 at ¶16, at 345;
State ex rel. Okla. Bar Ass’n v. Perceful, 1990 OK 72, ¶5, 796 P.2d 627,
630.
11. A Bar grievance was initially filed by Randles, not Jameson, and
involved claims that are not under discussion here. The Bar investigated
Randles’ complaint and chose not to pursue it, but during that investigation the Bar discovered the issues associated with Combs’ trust account,
which are here under consideration.
12. The record does not indicate whether Jameson’s account inquiries were made before or after Combs became aware of the error in the
funds’ removal. The record does indicate that despite the Bar grievance,
Combs, at the time of the hearing, remained counsel for Pamela Randles’ estate and the estate had yet to be closed.
13. The pertinent provisions of ORPC Rule 1.15, 5 O.S. 2001 Ch. 1,
App. 3-A, state: “(a) A lawyer shall hold property of clients or third
persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a
separate account maintained in the state where the lawyer’s office is
situated, or elsewhere with the written consent of the client or third
person. Other property shall be identified as such and appropriately
safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of
five years after termination of the representation.
(b) Upon receiving funds or other property in which a client or third
person has an interest, a lawyer shall promptly notify the client or third
person. Except as stated in this Rule or otherwise permitted by law or
by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third
Vol. 78 — No. 25 — 9/15/2007
person is entitled to receive and, upon request by the client or third
person, shall promptly render a full accounting regarding such property.”
14. The pertinent provision of ORPC Rule 8.1(b), 5 O.S. 2001 Ch. 1,
App. 3-A, states: “. . . a lawyer . . . in connection with a disciplinary matter, shall not: * * * * * (b) . . . knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary authority ,
. . .”
15. The provisions of ORPC Rule 8.4(a), 5 O.S. 2001 Ch. 1, App. 3-A,
state: “It is professional misconduct for a lawyer to: (a) violate or
attempt to violate the Rules of Professional Conduct . . .”
16. The provisions of ORPC Rule 8.4(c), 5 O.S. 2001 Ch. 1, App. 3-A,
state: “It is professional misconduct for a lawyer to: * * * * * (c) engage in
conduct involving dishonesty, fraud, deceit or misrepresentation; . . .”
17. The provisions of RGDP Rule 1.3, 5 O.S. 2001 Ch. 1, App. 1-A,
state: “The commission by any lawyer of any act contrary to prescribed
standards of conduct, whether in the course of his professional capacity,
or otherwise, which act would reasonably be found to bring discredit
upon the legal profession, shall be grounds for disciplinary action,
whether or not the act is a felony or misdemeanor, or a crime at all.
Conviction in a criminal proceeding is not a condition precedent to the
imposition of discipline.”
18. The pertinent provisions of RGDP Rule 1.4(b), 5 O.S. 2001 Ch. 1,
App. 1-A, state: “Where money or other property has been entrusted to
any attorney for a specific purpose, he must apply it to that purpose . . .
and a refusal to account for and deliver over such money or property
upon demand shall be deemed a conversion.”
19. The pertinent provisions of RGDP Rule 5.2, 5 O.S. 2001 Ch. 1,
App. 1-A, state: “After making such preliminary investigation as the
General Counsel may deem appropriate, the General Counsel shall
either . . . (2) file and serve a copy of the grievance . . .upon the lawyer,
who shall thereafter make a written response which contains a full and
fair disclosure of all the facts and circumstances pertaining to the
respondent lawyer’s alleged misconduct unless the respondent’s refusal
to do so is predicated upon expressed constitutional grounds. Deliberate
misrepresentation in such response shall itself be grounds for discipline.
. .”
20. For the prohibition of “commingling”, see Rule 1.15(a), supra note
13, which states in part that “[a] lawyer shall hold property of clients or
third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property”. State ex rel. Okla.
Bar Ass’n v. Johnston, 1993 OK 91, ¶21, 863 P.2d 1136, 1144.
21. For the rule against “simple conversion”, see Rule 1.4(b), supra
note 18, which states that “[W]here money or other property has been
entrusted to any attorney for a specific purpose, he must apply it to that
purpose. . . . and a refusal to account for and deliver over such money
or property upon demand shall be deemed a conversion”. Johnston,
supra note 20 at ¶21.
22. RGDP Rule 1.4(c), 5 O.S. 2001 Ch. 1, App. 1-A provides that
“[t]heft by conversion or otherwise of the funds of a client shall, if
proven, result in disbarment.” (Emphasis added.) These rules connote
that “theft”, rather than a mere simple conversion, will always dictate
disbarment. Johnston, supra note 20 at ¶21.
23. The terms of Rule 6.12(c), RGDP, 5 O.S. 1981 Ch. 1 App. 1-A are:
“To warrant a finding against the respondent in a contested case, the
charge or charges must be established by clear and convincing evidence. . . .”
(emphasis added). Johnston, supra note 20 at ¶21.
24. When no means exist to account for money, it becomes a fungible
unidentifiable property. Once money is combined, the only way in
which a determination can be made of the divisible parts is the accounting methods employed. The attorney has exclusive control over the
management of funds entrusted to him. Keeping a client’s money separate and distinct ensures that the money at all times is properly accounted for and can be shown to be distinct. This serves to prevent a lawyer
from deliberately or mistakenly using any of the funds entrusted to him.
“In their daily work lawyers commonly come into clients’ funds. The
trust placed in the lawyer owes its origin to the special professional
status he occupies as a licensed practitioner. Public confidence in the
practitioner is essential to the proper functioning of the profession. Few
breaches of ethics are as serious as the act of commingling a client’s
funds and the unwarranted use of his money.” Raskin, supra note 4 at
¶14.
25. Rule 1.15(a), supra note 13; Johnston, supra note 20 at ¶22.
26. Rule 1.4(b), supra note 18; Johnston, supra note 20 at ¶24.
27. Johnston, supra note 20 at ¶25.
28. Id.
29. Id.
30. Rule 1.4(c), supra note 22; Johnston, supra note 20 at ¶25.
31. State ex rel. Okla. Bar Ass’n v. Dobbs, 2004 OK 46, ¶51, 94 P.3d 31,
55.
Vol. 78 — No. 25 — 9/15/2007
32. There was some discussion involving several ATM withdrawals
from Combs’ trust account. Combs testified that ATM access was not a
service set up with the account and that he had attempted to confer with
the bank about the withdrawals. The Bar asserts that Combs has failed
to provide information explaining the ATM withdrawals. During the
course of the hearings the bank documents were subpoenaed by the Bar
but could not be prepared by the bank in time. At the end of the hearings
the trial panel stated it was unnecessary to continue to seek the records
and allowed the Bar to forego the proof sought to be secured by the
subpoena. We find that given the instructions of the trial panel, Combs
could have been led to believe the material was no longer being sought
and did not have to be provided.
33. Johnston, supra note 20 at ¶16; State ex rel. Okla. Bar Ass’n v. Todd,
1992 OK 81, ¶5, 833 P.2d 260, 263; Okla. Bar Ass’n v. McMillian, 1989 OK
16, ¶23, 770 P.2d 892, 899.
34. As stated in the facts, Combs’ staff testified that Combs was notified two months after the error yet he contends that he did not learn of
the error within two months but rather much later.
35. There is information regarding Rasel, Ayesha and R & N which
does not directly affect the issue but bears importance in explaining the
situation as a whole and also indicates the character of certain individuals involved.
Rasel formed the corporation R & N Distributing Inc.. It appears that
due to Rasel’s status as an immigrant and related problems with the
United States government, Rasel installed several of his in-laws as the
officers and shareholders of R & N. Mr. Mohammed Rahman (Rahman),
a brother-in-law of Rasel and Ayesha, was listed as the president of R &
N. These in-laws, Rahmen, Rahman’s wife, John Leonard (another
brother-in-law) and Leonard’s wife, were installed as officers and shareholders without their knowledge or permission.
For reasons not completely specified the IRS levied numerous taxes
and penalties, testified as reaching hundreds of thousands of dollars,
against R & N for which Rahman and the others became responsible.
The purpose of the sale of Rasel’s and Ayesha’s land was to provide
money to pay off the accumulated debt of the corporation and any other
encumbrances incurred as a result of the IRS situation.
36. The Agreement Regarding Sale of Real Estate Property specifically stated that the land sale proceeds will be kept in a trust account
“managed by R & N’s attorney,” who is identified within the agreement
as Combs.
37. See supra note 35.
38. Submitted as evidence is another agreement, titled General
Agreement, which is handwritten, undated, and appears to have been
signed by Rasel. The agreement provides essentially the same terms as
the Agreement Regarding Sale of Real Estate Property, stating that after
the distribution of necessary payments the remaining money shall go to
Ayesha and Rasel. The agreement expands on the disbursements
allowed to be made including “any other hidden cost or bad credit that
affects those four individuals,” assumed as meaning the four in-laws
installed as officers and shareholders of R & N.
39. The Bar asserts that Ayesha signed this letter only because she
was in a vulnerable state due to marital difficulties with Rasel. We find
this argument unpersuasive.
40. Rasel and Ayesha were having marital difficulties during this
time. Rasel had moved from Oklahoma to California but later returned.
Upon his return, he hired Craig Brown and initiated the lawsuit and Bar
grievance against Combs.
41. The respondent’s Brief-in-Chief indicates that Combs’ testimony
at the hearing shows he believed the proceeds from the land sale
belonged entirely to R & N. We disagree. The testimony does not state
this but rather reiterates that Combs understood the proceeds were to be
used for the payment of debt incurred by R & N.
42. There was evidence indicating Combs believed he was representing R & N alone. A letter dated July 9, 2005 from Combs to Rahman
and signed by both parties confirmed that Combs was working on
behalf of R & N. A second letter dated July 11, 2005 from Combs to Rasel
and Ayesha gave notice that Combs considered himself to represent R &
N alone and specifically disavows any representation of Rasel and Ayesha.
43. Testimony indicated a belief that no funds would remain in the
account after disbursement to creditors and others. This is irrelevant in
regards to Rasel’s and Ayesha’s right to an accounting. They had a valid
interest in any potential remainder of funds and therefore also a valid
interest in obtaining an accounting of fund disbursements.
44. Mr. Brown testified that he canceled one appointment with
Combs but stated the appointment was rescheduled and canceled the
second time by Combs. Mr. Brown also testified that he received a letter
from Rasel terminating his employment but that he was subsequently
retained by Rasel.
Rasel seems to claim that he terminated Mr. Brown’s representation
at the insistence of Combs in order to obtain the money in the trust
2263
account. Combs claims, and is supported by testimony from others, that
Rasel terminated Mr. Brown at the urging of the Bangladesh community.
Testimony indicated that in situations of conflict, as here between Rasel,
Ayesha and the individuals unknowingly installed as officers and shareholders of R & N who subsequently become responsible for R & N’s
debt, the Bangladesh community operates as a whole to solve problems
without receiving help from outside sources or relying on the American
legal system.
45. Rasel claims he was forced by Combs to sign the agreement in
order to secure from him money left in the trust account and to avoid
further litigation costs. Combs claims the agreement was signed after
Mr. Brown and Rasel reviewed the accounting of the trust account and
determined there was no dispute. Mr. Brown testified “there were discussions within [Rasel and Rahman’s] family to get the case settled, so
we settled the case.”
46. The provisions of ORPC Rule 1.8(h), 5 O.S. 2001 Ch. 1, App. 3-A,
state: “A lawyer shall not make an agreement prospectively limiting the
lawyer’s liability to a client for the lawyer’s personal malpractice, or
settle a claim for such liability with an unrepresented client or former
client without first advising that person in writing that independent
representation is appropriate in connection therewith.”
47. The provisions of ORPC Rule 8.4(d), 5 O.S. 2001 Ch. 1, App. 3-A,
state: “It is professional misconduct for a lawyer to: * * * * * (d) engage
in conduct that is prejudicial to the administration of justice; . . .”
48. The Bar in its Reply Brief in Chief asserted violations of additional rules: ORPC Rule 1.8(a), 5 O.S. 2001 Ch. 1, App. 3-A, ORPC Rule
1.7, 5 O.S. 2001 Ch. 1, App. 3-A, ORPC Rule 5.3, 5 O.S. 2001 Ch. 1, App.
3-A, ORPC Rule 1.8(a), 5 O.S. 2001 Ch. 1, App. 3-A, and ORPC Rule
1.8(b), 5 O.S. 2001 Ch. 1, App. 3-A. “The fundamentals of due process are
applicable in lawyer disciplinary proceedings. The Bar must allege facts
sufficient to put the accused lawyer on notice of the charges and afford
the respondent ample opportunity to defend against the allegations.”
Eakin, supra note 4 at ¶15. We find that Combs was not placed on notice
of these charges and therefore refrain from ruling on the alleged violations.
49. See State ex rel. Okla. Bar Ass’n v. Sheridan, 2003 OK 80, ¶36, 84
P.3d 710, 717; State ex rel. Okla. Bar Ass’n v. Tully, 2000 OK 93, ¶13, 20
P.3d 813, 816; State ex rel. Okla. Bar Ass’n v. Busch, 1998 OK 103, ¶29, 976
P.2d 38, 50; State ex rel. Okla. Bar Ass’n v. Donovan III, 1997 OK 2, ¶1,
934 P.2d 325, 326; State ex rel. Okla. Bar Ass’n v. Busch, 1993 OK 72, ¶13,
853 P.2d 194, 196.
50. See supra note 35.
51. State ex rel. Okla. Bar Ass’n v. Minter, 2001 OK 69, ¶24, n. 55, 37
P.3d 763,774, n. 55; State ex rel. Okla. Bar Ass’n v. Bourne, 1994 OK 78,
¶¶8-9, 880 P.2d 360, 362-363.
52. State ex rel. Okla. Bar Ass’n v. Giger, 2001 OK 96, ¶8, 37 P.3d 856,
863-4.
53. Giger, supra note 52 at ¶18, at 863-4.
54. State ex rel. Okla. Bar Ass’n v. Lowe, 1982 OK 20, ¶19, 640 P.2d
1361, 1363; State ex rel. Okla. Bar Ass’n v. Smith, 1980 OK 126, ¶ 21, 615
P.2d 1014, 1018.
55. State ex rel. Okla. Bar Ass’n v. Cummings, 1993 OK 127, ¶ 29, 863
P.2d 1164, 1174; State ex rel. Okla. Bar Ass’n v. Hall, 1977 OK 117, ¶12, 567
P.2d 975, 978.
56. Giger, supra note 52.
57. See State ex rel. Okla. Bar Ass’n v. Gasaway, 1993 OK 133, 863 P.2d
1189 (attorney disbarred for repeatedly commingling clients’ funds,
converting property of clients, and other improprieties with client
funds); State ex rel. Okla. Bar Ass’n v. McManus, 1993 OK 66, 852 P.2d
727 (public censure appropriate discipline for attorney who commingled
personal funds in his client’s trust account, neglected client concerns
and failed to respond to Bar’s grievance); State ex rel. Okla. Bar Ass’n v.
Kessler, 1991 OK 81, 818 P.2d 463 (attorney’s license suspended for two
years and one day for commingling client funds, use of moneys for
unauthorized purposes and misrepresentation to court that funds had
been used for designated purpose); State ex rel. Okla. Bar Ass’n v.
Kamins, 1977 OK 103, 568 P.2d 627 (attorney’s license to practice law
suspended for four months when insurance claim settlement money
was commingled with personal funds, attorney was unable to produce
funds at clients’ request and repayment was delayed nearly one year);
State ex rel. Okla. Bar Ass’n v. Geb, 1972 OK 17, 494 P.2d 299 (twelvemonth suspension ordered for attorney with prior disciplinary record
who commingled and failed to promptly remit client funds).
58. A suspension from the practice of law for two years and one day
is tantamount to disbarment. In order to be reinstated, a lawyer suspended for that period of time must follow the readmission procedure
crafted for disbarred lawyers. See the provisions of Rule 11.1, RGDP, 5
O.S.2001 Ch. 1, App.1-A. That procedure, set forth in the provisions of
Rule 11.4, RGDP, 5 O.S. 2001 Ch. 1, App. 1-A., entails the following:
“An applicant for reinstatement must establish affirmatively that, if
readmitted or if the suspension from practice is removed, the applicant’s
2264
conduct will conform to the high standards required of a member of the
Bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement.
The burden of proof, by clear and convincing evidence, in all such reinstatement proceedings shall be on the applicant. An applicant seeking
such reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time. The proof presented must be sufficient to overcome the Supreme Court’s former
judgment adverse to the applicant. Feelings of sympathy toward the
applicant must be disregarded. If applicable, restitution, or the lack
thereof, by the applicant to an injured party will be taken into consideration by the Trial Panel on an application for reinstatement. Further, if
applicable, the Trial Panel shall satisfy itself that the applicant complied
with Rule 9.1 of these Rules.”
59. Reinstatement for a member of the Bar who was suspended for
any period of time shorter than two years and one day is not connected
with any formal process. An individual suspended for more than two
years may be readmitted only through the process identified in Rule
11.1, RGDP, 5 O.S. 2001 Ch.1, App. 1-A.
60. See State ex rel. Okla. Bar Ass’n v. Mayes, 1999 OK 9, 977 P.2d 1073
(lawyer suspended for six months for commingling and simple conversion and serious deficiencies with respect to supervising and overseeing
his non-lawyer assistant and client communications); State ex rel. Okla.
Bar Ass’n v. Williams, 1995 OK 130, 911 P.2d 905 (previously disciplined
lawyer suspended for six months after being found guilty of a conflict
of interest, failure to keep property of a third person separate from his
own and applying trust account funds for a purpose other than that for
which they were entrusted); State ex rel. Okla. Bar Ass’n v. Wilkins, 1995
OK 59, 898 P.2d 147 (lawyer suspended for six months for failing to
inform two clients of the status of their respective matters, failing to
comply with requests for information, commingling and simple conversion of client funds, and for not being honest with a client about his
improper retention); Cummings, supra note 55 (twice previously disciplined lawyer given a one-year suspension for commingling and conversion of funds by impermissibly taking money entrusted by client for
specific purpose and applying it toward a claimed fee); Johnston, supra
note 20 (a four-month suspension imposed for commingling and conversion of funds, a false statement to a court, professional incompetence,
failure to act promptly on behalf of his clients and failure to communicate with them).
2007 OK 66
In the Matter of the Reinstatement of Patricia
J. Tubb to Membership in the Oklahoma Bar
Association and to the Roll of Attorneys.
SCBD No. 5238. September 11, 2007
ORDER
The petitioner, Patricia J. Tubb (Tubb/petitioner) voluntarily resigned from the Oklahoma
Bar Association on December 20, 2000. On
November 7, 2006, Tubb petitioned this Court
for reinstatement as a member of the Oklahoma
Bar Association. On June 7, 2007, a hearing was
held before the Trial Panel of the Professional
Responsibility Tribunal and the tribunal recommended that the attorney be reinstated. Upon
consideration of the matter, we find:
1) The petitioner has met all the procedural
requirements necessary for reinstatement
in the Oklahoma Bar Association as set out
in Rule 11, Rules Governing Disciplinary
Proceedings, 5 O.S. 2001, ch.1, app. 1-A.
2) The petitioner has established by clear and
convincing evidence that she has not
engaged in the unauthorized practice of
law in the State of Oklahoma.
Vol. 78 — No. 25 — 9/15/2007
convincing evidence that she possesses the
competency and learning in the law
required for reinstatement to the Oklahoma
Bar Association.
convincing evidence that she possesses the
good moral character which would entitle
her to be reinstated to the Oklahoma Bar
Association.
5) The petitioner has taken 37 hours of MCLE
since January of 2007, and because she has
complied with the spirit of Rule 3, Rules for
Mandatory Continuing Legal Education, 5
O.S. 2001, ch.1, app. 1-B, additional MCLE
for the year 2007 should be waived.
IT IS FURTHER ORDERED that Reinstatement is conditioned upon: 1) the payment of
$700.52 in costs associated with these proceedings; and 2) the payment of dues for calendar
year 2007. Costs and dues shall be paid within
30 days of the date of this order and reinstatement is conditioned upon such payment.
DONE BY ORDER OF THE SUPREME
COURT THE 10th DAY OF SEPTEMBER, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
WINCHESTER, C.J., EDMONDSON, V.C.J.,
HARGRAVE, OPALA, KAUGER, WATT,
TAYLOR, COLBERT, JJ. concur.
IT IS THEREFORE ORDERED that the petition of Patricia Jeannine Tubb for reinstatement
be granted. Under the facts presented, we hold
that the requirement for additional MCLE for
the year 2007 should be, and is hereby, waived.
ATTORNEY
Vanguard Car Rental USA
Inc., operator of National Car
Rental and Alamo Rent-A-Car,
is currently seeking
Cherokee Nation whose headquarters are located in
beautiful Tahlequah, Oklahoma is a national leader in Indian
tribal governments and economic development in Oklahoma,
We are a dynamic, progressive organization, which owns
several business enterprises and administers a variety of
services for the Cherokee people in Northeastern Oklahoma.
Cherokee Nation offers an exceptional employee benefits
plan with Comprehensive Health, Life, 401(k), Holiday Pay,
Sick Leave and Annual Leave.
IN-HoUSe
CoUNSel/
SR. AttoRNey
Successful candidate will possess
or display willingness to develop
expertise in general and industryspecific regulatory and compliance
matters. Position offers substantial
autonomy, interaction with management and opportu-nity for advancement.
CURRENT OPPORTUNITIES
#7354 Staff Attorney (2 positions), R/FT Close: 9/21/07
#7505 Assistant Attorney General I, R/FT Close: 9/21/07
#7506 Assistant Attorney General II, R/FT Close: 9/21/07
ALL LOCATED IN TAHLEQUAH, OK
If you are interested in working for the Cherokee Nation,
contact:
Cherokee Nation
Human Resources Department
PO Box 948
Tahlequah, OK 74465
(918) 453-5292 or 453-5050
Or Visit our website at: www.cherokeejoblist.org
Vanguard offers a competitive salary, comprehensive benefits package
and 401(k).
0LEASEEMAILRESUMETO
CAREERS
VANGUARDCARCOM
Vanguard Car Rental USA Inc. operates
National Car Rental and Alamo Rent A Car.
Employment will be contingent upon drug test results.
Indian preference is considered.
Vol.78—No.25—9/15/2007
Juris Doctorate is required. Ideal
candidate will be an attorney who
is licensed in at least one (1) state
to practice law and possesses a
minimum of 5 years experience in
private practice or a corporate legal
department with an emphasis on
civil litigation defense.
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BOILING SPRINGS LEGAL INSTITUTE SPONSORED BY THE WOODWARD COUNTY BAR ASSOCIATION
BOILING SPRINGS STATE PARK - TUESDAY, SEPTEMBER 18, 2007 • WOODWARD, OKLAHOMA
This course has been approved by the Mandatory Continuing Legal Education Commission of Oklahoma for a maximum of 6 credit hours, of which 1 hour is credit covering professional
responsibility, legal ethics of legal malpractice prevention. Registration fees: $150.00 for pre-registrations received prior to the Institute date; $175.00 for walk-in registrations. Lunch,
dinner and materials included in Registration Fee. Pre-registration is required for lunch and dinner. Cancellations will be accepted at any time prior to the Institute date; however, a $50.00
fee will be charged for cancellations made within three days of the Institute date. No requests for refunds or cancellations will be considered after the date of the Institute.
8:00 a.m. - 8:45 a.m.
9:00 a.m. - 9:50 a.m.
10:00 a.m. - 10:50 a.m. 11:00 a.m. - 11:50 a.m.
12:00 a.m. - 1:00 p.m.
1:00 p.m. -1:50 p. m. 2:00 p.m. - 2:50 p.m.
3:00 p.m. - 3:50 p.m.
3:50 p.m.- 5:00 p.m.
5:00 p.m. - 7:00 p.m.
Registration, Coffee & Doughnuts
Judicial Review of Administrative Orders; The Honorable John F. Reif, Oklahoma Court of Civil Appeals, Tulsa
Ethics Review; Gina L. Hendryx, Oklahoma Bar Association Ethics Counsel
Tort Reform Update; Duke Halley, Halley & Talbot, Woodward
Barbeque Lunch (included in registration fee) Sponsor TBA
Custody and Visitation Issues in Family Law; Julie S. Rivers, Family Law Solutions, Oklahoma City
Legislative Update; John Morris Williams, Oklahoma Bar Association General Counsel
Oil and Gas: Surface v. Mineral Use; Eric R. King, Gable & Gotwals P.C., Oklahoma City
Social Hour
Steak Dinner (included in registration fee) and Recognition of Honored Guests
2007 BOILING SPRINGS LEGAL INSTITUTE REGISTRATION FORM
Full Name:_______________________________________ Firm Name:_________________________________________________________
Address:__________________________________________________________________________________________________________
Phone:______________________________________ FAX:_________________________________________________________________
OBA Member?______________________________________ OBA Number (for CLE credit):___________________________________________
I will be unable to attend the seminar. Please send Materials Only: ______
$50.00 Do you plan to stay for the evening Social Hour and Steak Dinner? ____Yes ____No
Please make check payable to the Woodward County Bar Association and mail this form with check to Careylyn Talley, Woodward County Bar Association, P.O.
Box 1331, Woodward, OK 73802. For more information, please call Susan Meinders at (580)254-5551.
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Court of Criminal Appeals Opinions
2007 OK CR 33
RENE GOMEZ, Appellant, v. STATE OF
OKLAHOMA, Appellee.
No. F-2005-526. September 5, 2007
OPINION
A. JOHNSON, JUDGE:
¶1 Appellant Rene Gomez was tried in a
non-jury trial in the District Court of Kingfisher
County before the Honorable Susie Pritchett in
Case No. CF-2004-19 for Possession of a Controlled Dangerous Substance (Methamphetamine) (63 O.S.2001, §2-402), Unlawful Possession of Paraphernalia (63 O.S.2001, §2-405),
and Obstructing an Officer (21 O.S.2001, §540).
After the district court denied Gomez’s motion
to suppress certain evidence, Gomez stipulated
that the evidence produced by the State at the
preliminary hearing was sufficient to sustain
the State’s burden of proof. As a result of that
stipulation, the district court found Gomez
guilty on all three counts.
¶2 The district court sentenced Gomez to five
years in prison on the methamphetamine possession count. The district court also ordered
that when space became available, Gomez
would be sent to the Bill Johnson Correctional
Center in Alva, Oklahoma, and directed that
when he successfully completed the “RTP”1
program there, “the balance of the sentence to
incarceration shall be suspended, under the
supervision of the Department of Corrections
for two (2) years” (Judgment and Sentence at
1).2 The district court sentenced Gomez to one
year each in the county jail on the paraphernalia and obstruction counts and further ordered
the sentences on all three counts to run concurrently. From this judgment and sentence,
Gomez appeals and advances two propositions
of error:
(1) The evidence seized as a result of the
warrantless search of his car should have been
suppressed by the trial court because the search
was not supported by probable cause or a
showing of exigent circumstances; and
(2) The five year sentence, even with its conditional partial suspension, is excessive.
¶3 On May 16, 2004, around 1:00 a.m., Gomez
was stopped by Officer Burpo of the Kingfisher
Vol. 78 — No. 25 — 9/15/2007
County Police for swerving across the center
yellow line twice while traveling on Highway
81. As Officer Burpo asked Gomez for his
license and registration, he noticed the smell of
alcohol and saw two six-pack alcoholic beverage containers inside Gomez’s car. The visible
containers were unopened, but one container
was missing.3 Officer Burpo directed Gomez to
get out of the vehicle because he wanted to
search the car for an open container. Officer
Burpo escorted Gomez to the front of his patrol
car and began to search the immediate driver’s
area of Gomez’s car. Before Officer Burpo
began searching, Gomez clearly stated that he
did not consent to the search. As Officer Burpo
searched the driver’s immediate area, he
noticed the center console lid was ajar and
opened it. Inside the console was an open bottle of alcohol. Underneath the bottle Burpo
found a glass pipe, a small amount of methamphetamine, and a digital scale.
I. Warrantless Search
¶4 This case raises two issues: (1) whether
the smell of alcohol and under the circumstances, the absence of an alcoholic beverage
container provide sufficient probable cause for
a warrantless vehicle search; and (2) whether a
warrantless vehicle search must be supported
by a showing of exigent circumstances as well
as probable cause. Gomez contends that the
district court erred by denying his motion to
suppress the drug and drug paraphernalia evidence that was seized as a result of the search
of his car. According to Gomez, the evidence
seized during the search of his car should have
been suppressed because Officer Burpo lacked
probable cause necessary to conduct a warrantless search, and there were no exigent circumstances requiring an immediate roadside search
of his vehicle.
¶5 We review a trial court’s denial of a suppression motion for an abuse of discretion.
State v. Goins, 2004 OK CR 5, ¶7, 84 P.3d 767,
768. When reviewing a trial court’s ruling on a
motion to suppress evidence based on a complaint of an illegal search and seizure, we defer
to the trial court’s findings of fact unless they
are not supported by competent evidence and
are therefore clearly erroneous. Seabolt v. State,
2006 OK CR 50, ¶5, 152 P.3d 235, 237. We
2267
review the trial court’s legal conclusions based
on those facts de novo. Id.
A. Probable Cause
¶6 The Fourth Amendment to the United
States Constitution and Article 2, §30 of the
Oklahoma Constitution both proscribe unreasonable search and seizures.4 Under both constitutions, an officer is justified in stopping a
vehicle if he has probable cause to believe a
driver is violating some traffic law. Dufries v.
State, 2006 OK CR 13, ¶9, 133 P.3d 887, 889.
Officer Burpo saw Gomez cross over the yellow centerline twice while traveling on Highway 81. This observation constituted sufficient
cause to stop Gomez, and as Gomez concedes,
his initial detention was therefore justified.
Nevertheless, despite conceding the validity of
the traffic stop, Gomez contends that the smell
of alcohol and a missing container from an otherwise undisturbed six-pack of alcoholic beverages did not constitute sufficient probable
cause for a warrantless search of his car.
¶7 In Hallcy v. State, 2007 OK CR 2, ¶10, 153
P.3d 66, 68-69, we held in a slightly different
context that the “test for judging the existence
of probable cause is whether a reasonably prudent police officer, considering the totality of
the circumstances confronting him and drawing from his experience, would be warranted
in the belief that an offense has been or is being
committed.” We explained in Hallcy that “probable cause is a flexible, common-sense standard, requiring that the facts available to the
officer would warrant a [person] of reasonable
caution in the belief that certain items may be
contraband or useful as evidence of a crime.”
Id. Logically then, probable cause sufficient to
justify a warrantless search of a vehicle exists if
an officer reasonably believes the vehicle contains contraband or evidence of a crime. Under
this standard, based on the centerline swerving, the smell of alcohol, and the missing bottle,
Officer Burpo’s belief that Gomez’s car contained evidence of a crime (i.e., an open alcohol
container) was reasonable. Officer Burpo therefore possessed sufficient probable cause to
search Gomez’s car for an open container of
alcohol.5 Cf. Lozoya v. State, 1996 OK CR 55,
¶¶34-36, 932 P.2d 22, 33 (holding that officer
who smelled odor of marijuana while approaching van validly stopped for failure to dim
headlights had probable cause to search for
contraband); Cole v. State, 1986 OK CR 150,
¶¶9-10, 728 P.2d 492, 494 (holding that officer
who smelled burning marijuana while
approaching defendant’s vehicle stopped for
2268
tail light violation had probable cause to search
for contraband).6
¶8 Gomez contends, however, that regardless of whether Officer Burpo legitimately
searched for and seized an open container of
alcohol, the contraband drugs and paraphernalia that were ultimately found in the vehicle’s
center console underneath the open container
were the fruit of an unlawful search. According
to Gomez, once Officer Burpo removed the
bottle from the center console there was no
further justification “to rummage around” in
the console searching for contraband (Appellant’s Reply Brief at 5). We disagree. Officer
Burpo’s warrantless search of the interior of
Gomez’s car for an open container of alcohol
was lawful because it was supported by probable cause, and, because the officer reasonably
believed there might be an open container in
the car, he was entitled to search the entire interior of the car, including the center console of
the front seat. See Wyoming v. Houghton, 526 U.
S. 295, 300-01, 119 S.Ct. 1297, 1300-01, 143 L.
Ed.2d 408 (1999)(relying on United States v.
Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d
572 (1982), to hold that if probable cause justifies search of lawfully stopped vehicle, it justifies search of every part of vehicle that may
conceal object of search including all containers within vehicle without showing of individual probable cause for each container);7
Castleberry v. State, 1984 OK CR 30, ¶14, 678
P.2d 720, 723 (“[i]f an officer has probable cause
to believe there is contraband somewhere in
the car, but he does not know exactly where, he
may search the entire car as well as any containers found therein”). When the officer found
the open container and removed it from the
console, he was lawfully positioned to observe
the methamphetamine, pipe, and digital scale
when they came into plain view with removal
of the bottle that had been sitting on top of
them. The drug-related items were found in
plain view during a valid warrantless search.
They were lawfully seized. Cf. Harris v. United
States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.
Ed.2d 1067 (1968)(finding that once door to
vehicle had been lawfully opened, registration
card in plain view was legally seized); Baxter v.
State, 1974 OK CR 198, ¶5, 528 P.2d 347, 349
(holding that officer lawfully in any place may,
without obtaining warrant, seize from motor
vehicle, any item which he observes in plain or
open view, if he has probable cause to believe
item is contraband, or evidence of crime).
B. Exigent Circumstances
Vol. 78 — No. 25 — 9/15/2007
¶9 We now turn to Gomez’s claim that the
warrantless search that arose from the initial
investigatory encounter was unlawful due to a
lack of exigent circumstances. Gomez contends
that Article 2, §30 of the Oklahoma Constitution requires exigent circumstances in addition
to probable cause. Before discussing Gomez’s
state constitutional claim, however, we first
examine federal constitutional jurisprudence
concerning warrantless vehicle searches
because it is instructive on the concept of exigent circumstances.
(1) Federal Constitution
¶10 In Maryland v. Dyson, 527 U.S. 465, 467,
119 S.Ct. 2013, 2014, 144 L.Ed.2d 442 (1999), the
United States Supreme Court expressly rejected any exigency requirement for the vehicle
exception to the Fourth Amendment’s warrant
rule. In Dyson, the Supreme Court held that the
“automobile exception” to the warrant rule has
no separate exigency requirement by explaining that “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits
police to search the vehicle without more.” To
reach this conclusion, the Dyson court relied on
the reasoning in United States v. Ross, 456 U.S.
798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Ross
explained that the Fourth Amendment to the
United States Constitution has always recognized a distinction between the need for a warrant to search a fixed structure such as a dwelling house or a store and a “ship, motor boat,
wagon or automobile . . . where it is not practicable to secure a warrant because the vehicle
can be quickly moved out of the locality or
jurisdiction in which the warrant must be
sought.” Ross, 456 U.S. at 806, 102 S.Ct. at 2163,
72 L.Ed.2d at 582. According to Ross, given the
inherently mobile nature of an automobile in
transit, an immediate intrusion may be necessary if police are to secure contraband in the
process of being transported. Id. Ross held that
a warrantless search of an automobile is not
unreasonable in the absence of a separate
showing of exigent circumstances because the
mobility of the automobile creates its own form
of exigency. Id.
(2) Oklahoma Constitution
¶11 In light of Dyson and Ross, Gomez concedes there is no federal constitutional requirement for a showing of exigent circumstances in
addition to probable cause to support a warrantless vehicle search. Gomez asserts, however, that Article 2, §30 of the Oklahoma Constitution requires such a showing independent of
Vol. 78 — No. 25 — 9/15/2007
the federal constitution. To support his position, Gomez relies on Davis v. State, 1980 OK
CR 114, 620 P.2d 1346, where this Court held:
[T]here are two occasions on which a [vehicle] search without a warrant may be justified as reasonable: one is where the search
is incident to a lawful arrest; and, the second is when probable cause exists to believe
that the defendant is in possession of that
which is subject, by law, to seizure. However, the second occasion is limited by the
requirement that there be “exigent circumstances.”
1980 OK CR 114, ¶4, 620 P.2d 1346, 1347. Davis
clearly holds a warrantless vehicle search
requires a showing of probable cause and exigent circumstances.
¶12 While the Davis opinion did not specify
whether it grounded its exigent circumstances
requirement on federal or state constitutional
grounds,8 it did refer to two prior decisions of
this Court in which warrantless searches of
vehicles were at issue. The first, Lawson v. State,
1971 OK CR 184, ¶15, 484 P.2d 1337, 1341, held
that “there is no lawful predicate for a search of
the driver or the vehicle absent special circumstances where the officer has probable cause to
search the area in which the arrestee may reach
for a weapon or destroy evidence.” Lawson
reached its holding after discussing the unreasonable search provisions of both the Oklahoma and federal constitutions. Five years later,
however, in Whitehead v. State, 1976 OK CR 35,
¶4, 546 P.2d 273, 275, relying entirely on Article
2, §30 of the Oklahoma Constitution, this Court
held that a warrantless vehicle search requires
both probable cause and a showing of exigent
circumstances. As construed by this Court in
Whitehead, Article 2, §30 requires both exigent
circumstances and probable cause for a warrantless vehicle search. Id.
¶13 The question before the Court now is
whether to retain our construction of Article 2,
§30, requiring a showing of exigent circumstances in addition to probable cause as justification for a warrantless search of a vehicle.
¶14 It is well established that this State may
grant protections to its citizens that are more
expansive than those conferred by federal law.
Brumfield v. State, 2007 OK CR 10, ¶15, 155 P.3d
826, 833. It is also settled that this Court’s independent interpretation of Oklahoma constitutional provisions is not circumscribed by United States Supreme Court interpretations of
similar federal provisions. Dennis v. State, 1999
OK CR 23, ¶20, 990 P.2d 277, 285-86. There is no
2269
doubt, therefore, that we may continue to construe Article 2, §30 as requiring exigent circumstances for valid application of the automobile
exception to the warrant rule contained in our
Article 2, §30. For the reasons set forth below,
however, we decline to do so.
¶15 In Gore v. State, 24 Okla.Crim.App. 394,
411, 218 P. 545, 547-48 (1923), this Court
explained that if construction of federal constitutional provisions made by the United States
Supreme Court appears to rest on “sound principles,” the decisions of this Court construing
equivalent provisions of the Oklahoma Constitution should harmonize with those of the
United States Supreme Court construing the
federal constitution. The stated basis for the
rule was to promote uniformity of judicial
decisions. Id. This view is buttressed by Article
1, §1 of the Oklahoma Constitution. Article 1,
§1 declares that “[t]he State of Oklahoma is an
inseparable part of the Federal Union, and the
Constitution of the United States is the supreme
law of the land.” With this declaration, the
Framers of our Constitution expressed a preference for a harmonious construction of the
Oklahoma Constitution with the Constitution
of the United States where possible.
¶16 Because we believe the United States
Supreme Court’s decisions in Ross and Dyson
rest on sound principles, we are persuaded
they should inform our construction of Article
2, §30. We therefore hold that a warrantless
search of a vehicle is not unreasonable under
Article 2, §30, of the Oklahoma Constitution in
the absence of a showing of exigent circumstances when police have probable cause to
believe that evidence of a crime is present.9 To
the extent that Davis, Whitehead, and Lawson
hold to the contrary, they are overruled.10
¶17 Because the warrantless search of
Gomez’s car was supported by probable cause
and nothing more was required, the search did
not violate his state or federal constitutional
rights. The district court did not abuse its discretion in denying his motion to suppress evidence.
II. Sentence
¶18 In his second proposition of error, Gomez
complains that his sentence is excessive and
should be modified. This Court will not modify
a sentence within the statutory range unless,
considering all the facts and circumstances, it
shocks our conscience. Rea v. State, 2001 OK CR
28, ¶5, 34 P.3d 148, 149. Gomez was sentenced
to five years in prison with a portion conditionally suspended contingent on successful com2270
pletion of a drug abuse rehabilitation program.
The sentencing range for possession of a controlled dangerous substance is between two
and ten years (63 O.S.2001, §2-402 ). Given the
fact that the sentence was well within the statutory range and given further that Gomez has
an opportunity to attend rehabilitation and
thereby have part of his sentence suspended,
this sentence does not shock our conscience.
DECISION
¶19 The Judgment and Sentence of the trial
court is AFFIRMED. Under Rule 3.15, Rules of
the Oklahoma Court of Criminal Appeals, Title 22
Ch. 18, App. (2007), the MANDATE is
ORDERED issued upon the delivery and filing
of this decision.
APPEARANCES AT TRIAL
Josh T. Welch, Ogle & Welch, P.C., 117 Park
Avenue, Third Floor, Oklahoma City, OK 73102,
Attorney For Defendant,
E.A. Gates, Office Of District Attorney, Kingfisher County Courthouse, Room 25, 101 South
Main, Kingfisher, OK 73750, Attorney For
State.
APPEARANCES ON APPEAL
J. David Ogle, Josh T. Welch, Ogle & Welch, P.
C., 117 Park Avenue, Third Floor, Oklahoma
City, OK 73102, Attorneys For Appellant,
W.A. Drew Edmondson, Attorney General of
Oklahoma, Theodore M. Peeper, Assistant
Attorney General, 313 N.E. 21St, Oklahoma
City, OK 73105, Attorneys for Appellee.
OPINION BY: A. JOHNSON, J.
LUMPKIN, P.J.: Specially Concurs
C. JOHNSON, V.P.J.: Concurs in Part and Dissents in Part
CHAPEL, J.: Concurs in Part and Dissents in
Part
LEWIS, J.: Concurs
1. Neither the Judgment and Sentence document, nor the briefs of
the parties explain the meaning of the acronym “RTP.” We assume the
acronym stands for the term “regimented treatment program.” We
assume further based upon the context in which it is used by the parties, that the term relates to drug or substance abuse treatment rehabilitation.
2. The record on appeal as transmitted by the district court does
not contain a copy of the Judgment and Sentence document. We rely,
therefore, on a copy of the Judgment and Sentence attached to Gomez’s
Petition in Error.
3. The record is not clear on the specific type of alcoholic beverages
involved. Throughout the record, the beverage containers are referred
to as bottles of beer or more generically as alcoholic beverages. Officer
Burpo did, however, specifically identify the container he found in the
vehicle’s center console as an “[o]pen bottle of Bacardi alcoholic beverage” (Preliminary Hrg. Tr. at 8).
4. Article 2, §30 of the Oklahoma Constitution is nearly identical to
the Fourth Amendment to the United States Constitution and states:
Vol. 78 — No. 25 — 9/15/2007
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches or seizures
shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or
thing to be seized.
By comparison, the Fourth Amendment states:
The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. Const. amend. IV.
5. Gomez argues that because Officer Burpo stated in the preliminary hearing that he only had “reasonable suspicion” to search the car
(Preliminary Hrg. Tr. 15-16, 26), the warrantless search was invalid
because “reasonable suspicion” is a lesser standard than “probable
cause.” This argument is clearly without merit because as we held in
Satterlee v. State, 1976 OK CR 88, ¶¶18-19, 549 P.2d 104, 108-09, an
officer’s description of his own level of suspicion does not determine
whether there was probable cause.
6. While this Court has not addressed this specific fact pattern in
any prior published case (i.e., whether the smell of alcohol and a missing beverage container from otherwise undisturbed six-pack, versus
the smell of burning marijuana, constitutes probable cause for a vehicle search), at least one other court has addressed a nearly identical set
of circumstances and reached a similar result. In State v. Schuette, 423
N.W.2d 104 (Minn. App. 1988), the Minnesota Court of Appeals determined that an “officer’s detection of an alcoholic odor emanating from
an automobile constitutes probable cause to search the automobile for
open bottles or cans of alcohol” and held that an officer is therefore
“justified in searching anywhere in the passenger compartment where
those bottles or cans might be found.” Id. citing State v. Schinzing, 342
N.W.2d 105, 109 (Minn. 1983). The Schuette court then concluded, as
we do here, that probable cause “exists when the officer notices the
smell of alcohol and observes an open case of beer with cans missing.”
Id. citing State v. Pierce, 347 N.W.2d 829, 833 (Minn.Ct.App. 1984).
7. While Houghton clearly held that probable cause to search a
vehicle extends to all containers within the vehicle in which contraband might be concealed, the converse is not necessarily true. In California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619
(1991), the Court reaffirmed its rule announced in United States v. Ross,
456 U.S. 798, 821-22, 102 S.Ct. 2157, 2171-72, 72 L.Ed.2d 572 (1982), that
probable cause justifying a search of a vehicle extends to all containers
in the vehicle. At the same time, however, the Acevedo court clearly
negated the converse by holding that the mere fact that police have
probable cause to believe a container placed in a vehicle contains contraband or evidence does not justify the search of the entire vehicle.
Acevedo, 500 U.S. at 580, 111 S.Ct. at 1991. See e.g., United States v. Corral,
970 F.2d 719, 726 (10th Cir. 1992)(explaining that under Acevedo, police
may search entire automobile and containers within it where they have
probable cause to believe contraband or evidence is contained, but if
police have probable cause to believe contraband is located in specific
container located within automobile, they are authorized to search
container, although not entire vehicle without warrant).
8. To the extent it based its ruling on the Fourth Amendment to the
United States Constitution, Davis clearly has been superseded by
Dyson and Ross.
9. We emphasize that the modification to the automobile exception
we adopt in this case applies only to those vehicle searches already
supported by probable cause. We do not hold that any valid traffic stop
may in itself serve as probable cause for a warrantless search of the
vehicle. Rather, we merely recognize in this case, as the United States
Supreme Court did in Ross, that the scope of a warrantless search conducted under the automobile exception to the warrant rule is no
broader and no narrower than a judge could authorize by warrant.
Any warrantless vehicle search must still be supported by probable
cause and that probable cause must otherwise be sufficient in itself to
support issuance of a warrant by a judge had time and practicality
permitted. Cf. Ross, 456 U.S. at 809, 820, 102 S.Ct. at 2164-65, 2170
(explaining that in this type of case, a search must still be supported by
probable cause sufficient to justify issuance of a warrant for the items
sought even though a warrant had not actually been obtained; and
explaining further that the automobile exception to the warrant rule
merely relaxes the requirement for a warrant on the grounds of practicality and “neither broaden[s] nor limit[s] the scope of a lawful search
based on probable cause”).
10. The dissent contends that the district court’s denial of Gomez’s
suppression motion should be affirmed on the basis of what it
describes as settled Oklahoma law. To reach this conclusion the dissent
Vol. 78 — No. 25 — 9/15/2007
relies primarily on the case of State v. Paul, 2003 OK CR 1, 62 P.3d 389.
As Judge Lumpkin correctly notes in his special concurrence, however,
this Court’s opinions, including Paul, are not only inconsistent in this
area, but often fail to explain whether a particular case was decided on
Fourth Amendment or Article 2, §30 grounds. In Paul, this Court
upheld a warrantless vehicle search, ostensibly on Fourth Amendment
grounds, where the police officer conducting the search had nothing
but probable cause. Although the Paul opinion did not mention the
Oklahoma Constitution, its result is clearly contrary to our decisions in
Davis v. State, 1980 OK CR 114, ¶4, 620 P.2d 1346, 1347; Whitehead v.
State, 1976 OK CR 35, ¶4, 546 P.2d 273, 275; and Lawson v. State, 1971
OK CR 184, ¶¶12-15, 484 P.2d 1337, 1341, all of which are cited by the
dissent as holding that the Oklahoma Constitution requires both probable cause and exigent circumstances to justify a warrantless vehicle
search. If it is truly settled Oklahoma law that a warrantless vehicle
search lacking exigent circumstances is a search that is repugnant to
the Oklahoma Constitution, as the dissent contends, the Paul case was
either wrongly decided or stands alone as an aberrant judicial outlier.
In either case, the decision repudiates or ignores the constitutional
commands of Davis and its antecedents, the very cases the dissent cites
as settled Oklahoma law. This is precisely the type of inconsistency
among our cases that we must resolve in order to bring clarity, certainty, and finality to this area of law.
LUMPKIN, PRESIDING JUDGE: SPECIAL
CONCUR
¶1 I concur in Judge Arlene Johnson’s well
reasoned application of this Court’s jurisprudence relating to the warrantless search of an
automobile. I write separately to address further the history of this jurisprudence.
¶2 The relationship between Article II, §30 of
the Oklahoma Constitution and the Fourth
Amendment of the United States Constitution
was decided just two years after statehood. In
DeGraff v. State, 1909 OK CR 82, 2 Okla.Crim.
519, 103 P. 538 this Court said:
This provision of our Constitution [Article
II Section 30] is almost an exact copy of the
fourth amendment of the Constitution of
the United States, which is as follows:
“Article IV (30). The right of the people to
be secure in their persons, houses, papers,
and effects, against unreasonable searches
and seizures, shall not be violated, and no
warrants shall issue but upon probable
cause, supported by oath or affirmation,
and particularly describing the place to be
searched and the persons or things to be
seized.” It is true that the language is not in
all respects the same in the two provisions;
but the substance is identical. For a proper
understanding of the question before us, it
is important to find out what construction
the United States courts have placed upon
this provision.
103 P. at 541.
¶3 This was subsequently reaffirmed in Keith
v. State, 30 Okla. Crim. 168, 171, 235 P. 631, 632
(1925) (“[s]ection 21 [of the Oklahoma Constitution] corresponds in substance with article 5
[of the federal constitution], and section 30 [of
the Oklahoma Constitution] is identical with
2271
article 4, respectively, of the amendments to the
Constitution of the United States”); Buxton v.
State, 37 Okla. Crim. 402, 258 P. 814, 815 (1927)
(“this court has followed the decisions of the
Supreme Court of the United States in construing section 21 and 30 [of the Oklahoma Constitution]”); Layman v. Webb, 1960 OK CR 19, ¶24,
350 P.2d 323, 335 (“[t]herefore, for an answer to
the problem we must determine whether in
view of Sections 21 and 30, Art. II, Oklahoma
Constitution, commonly known as the Bill of
Rights, found as the 5th and 4th Amendments
to the United States Constitution . . .”).
¶4 More recently in State v. McNeal, 2000 OK
CR 13, ¶10, 6 P.3d 1055, this Court stated:
We have previously held that article II, section 30 of the Oklahoma Constitution and
the Fourth Amendment of the U.S. Constitution contain almost exactly the same
wording, and in substance are identical.
Years ago this Court recognized the close
relation of the Oklahoma Constitution’s
Article II, §30 and the Fourth Amendment
to the United States Constitution when we
stated “[t]his provision of our Constitution
[Art. II, Section 30] is almost an exact copy
of the fourth amendment of the Constitution of the United States. . . .” Long v. State,
1985 OK CR 119, ¶6, 706 P.2d 915, 917
(quoting DeGraff v. State, 2 Okl. Cr. 519, 103
P. 538 (1909)).
we should honor the doctrine of stare decisis in
applying it here.
¶7 The “automobile exception” was first set
forth in Carroll v. United States, 267 U.S. 132, 45
S.Ct. 280, 69 L.Ed.2d 543 (1925). In determining
under what circumstances a warrantless search
of an automobile was permitted, the Court
held that “the seizing officer shall have reasonable or probable cause for believing that the
automobile which he stops and seizes has contraband liquor therein which is being illegally
transported”. Id., 267 U.S. at 155-56, 45 S.Ct. at
286. This Court thereafter held that a lawful
search of an automobile may be made without
a warrant where there is probable cause to
believe that it contains that which by law is
subject to seizure. See Merwin v. State, 1954 OK
CR 111, ¶6, 277 P. 2d 208, 210-11; Thompson v.
State, 1968 OK CR 163, ¶14, 444 P.2d 849, 850;
Gaston v. State, 1969 OK CR 208, ¶¶6-7, 457 P.2d
807, 808-09.
¶5 In Long, this Court specifically rejected a
request to apply a different standard to Article
II, §30 than the United States Supreme Court
had applied to the Fourth Amendment of the
United States Constitution.1 1985 OK CR 11, ¶6,
706 P.2d 915, 917. See also my separate writing
in Dennis v. State, 1999 OK CR 23, 990 P.2d 277,
287 (Lumpkin, V.P.J., concur in part/dissent in
part).
¶8 In 1970, the Supreme Court decided that
the existence of probable cause alone would
not satisfy a warrantless search, that only when
there are “exigent circumstances” in addition
to the existence of probable cause could an officer legitimately search an automobile without
a warrant. Chambers v. Maroney, 399 U.S. 42, 90
S.Ct. 1975, 26 L.Ed.2d 419 (1970). This Court
subsequently adopted the probable cause plus
exigent circumstances standard for warrantless
searches of automobiles. See Lawson v. State,
1971 OK CR 184, ¶8, 484 P.2d 1337, 1339; Norton
v. State, 1972 OK CR 261, ¶¶7-8, 501 P.2d 877,
879-80; Gonzales v. State, 1974 OK CR 133, ¶11,
525 P.2d 656, 658; Hughes v. State, 1976 OK CR
164, ¶¶6-8, 552 P.2d 1154, 1155-56; Whitehead v.
State, 1976 OK CR 35, ¶4, 546 P.2d 273, 275-76;
Blackburn v. State, 1978 OK CR 24, ¶22, 575 P.2d
638, 642; Phelps v. State, 1979 OK CR 76, ¶10,
598 P.2d 254, 257-58; Davis v. State, 1980 OK CR
114, ¶4, 620 P.2d 1346, 1347.
¶6 As these cases indicate, this Court has
historically chosen to interpret Article II, §30
the same as the Fourth Amendment.2 The
majority correctly recognizes that this Court’s
independent interpretation of Oklahoma constitutional provisions is not bound by the
United States Supreme Court’s interpretations
of similar federal provisions. However, when
the Supreme Court’s interpretation of federal
constitutional provisions, similar to state constitutional provisions, is based on well-reasoned legal principles, this Court has appropriately chosen to follow that reasoning. That is
very apparent in our jurisprudence regarding
the warrantless search of an automobile, and
¶9 However, in 1982, the Supreme Court recognized that a separate exigency requirement
was not necessary in the case of an automobile
search and determined that probable cause
alone was sufficient to support a warrantless
search of an automobile. See United States v.
Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d
572 (1982). This has since been reaffirmed in
Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct.
2485, 135 L.Ed.2d 1031 (1996) (per curiam) and
Maryland v. Dyson, 527 U.S. 465, 467, 119 S.Ct.
2013, 2014, 144 L.Ed.2d 442 (1999). This Court
similarly determined that separate exigent circumstances were not necessary and the warrantless search of an automobile was permitted
2000 OK CR 13, ¶10, 6 P.3d at 1057.
2272
Vol. 78 — No. 25 — 9/15/2007
on the basis of probable cause to believe that
the instrumentalities or fruits of a crime were
contained within. See Castleberry v. State, 1984
OK CR 30, ¶13, 678 P.2d 720, 724; Cole v. State,
1986 OK CR 150, ¶9-10, 728 P.2d 492, 494; Davis
v. State, 1990 OK CR 20, ¶23, 792 P.2d 76, 84;
Loyoza v. State, 1996 OK CR 55, ¶35, 932 P.2d 22,
33; State v. Paul, 2003 OK CR 1, ¶4, 62 P.3d 389,
390.
1. Although the issue in Long was suppression of the victims’ incourt identifications, and not the warrantless search of an automobile,
this Court’s holding indicates an intent to interpret Article II, §30 the
same as the Fourth Amendment.
2. See also, State v. Thomason, 1975 OK CR 148, 538 P.2d 1080, 1086
(art. II, §21, does not grant broader protections than that embodied
within the Fifth Amendment to the federal constitution.)
3. See Embree v. State, 1971 OK CR 298, ¶11, 488 P.2d 588, 592-93;
Davis v. State, 1973 OK CR 416, ¶15, 514 P.2d 1195, 1198; Ferguson v.
State, 1974 OK CR 50, ¶5, 520 P.2d 819, 820; Hutchinson v. State, 1977 OK
CR 125, ¶15, 562 P.2d 867, 871; Gilreath v. State, 1981 OK CR 44, ¶6, 627
P.2d 443, 444.
4. See Lucas v. State, 1985 OK CR 100, ¶¶9-10, 704 P.2d 1141, 1143.
¶10 There are admittedly certain caveats to
the above history. It has not always been clear
in our opinions whether a particular case was
decided strictly on Fourth Amendment grounds
or on both Fourth Amendment and section 30
grounds. Further, our case history is somewhat
inconsistent. For instance, after the Chambers
decision, certain cases from this Court relied
solely on Carroll and did not discuss the exigent circumstances requirement.3 And after
Ross was decided we still had an occasion to
require a finding of exigent circumstances.4
CHAPEL, J., CONCURRING IN PART AND
DISSENTING IN PART:
¶11 However, with the exception of a few
cases, it is clear that it is well established law
that this Court interprets Article II, §30 of the
state constitution the same as the Supreme
Court interprets the Fourth Amendment of the
federal constitution. Therefore, it is entirely
appropriate and consistent with our jurisprudence to follow the Supreme Court’s rulings in
Dyson and Ross concerning the warrantless
search of an automobile.
¶12 Further, practically speaking, it would be
virtually unworkable to interpret Article II, §30
any other way and expect the officer on the
street to follow two differing federal and state
standards in deciding whether he or she can
legally search an automobile. Interpreting Article II, §30 consistent with the Fourth Amendment sufficiently protects the rights of Oklahoma citizens. The Court’s decision in this case
does not mean that an officer can search any
automobile merely because the driver has been
pulled over for a traffic violation. The officer
must have additional probable cause to believe
the automobile contains contraband or the
fruits or instrumentalities of a crime.
¶13 Therefore, I agree with the majority
opinion that the warrantless search of an automobile is legally permissible based solely upon
a finding of probable cause to believe that the
instrumentalities or fruits of a crime are contained therein, and the existence of exigent
circumstances is not a consideration. I further
agree that cases inconsistent with this opinion
should be overruled.
Vol. 78 — No. 25 — 9/15/2007
¶1 The majority disregards settled Oklahoma
law which could be used to affirm this unremarkable case, preferring instead to rely on an
interpretation of federal law which conflicts
with settled law based on the Oklahoma Constitution. Essentially, the majority holds that,
despite Oklahoma constitutional law to the
contrary, probable cause to search for any reason justifies a search of an entire vehicle and
any containers within it. I see no reason to substitute this conclusion for our own settled precedent. The only possible reason I can see for the
majority’s approach is to allow it to overturn
Oklahoma precedent which interprets the
Oklahoma Constitution differently than federal
law interprets the federal Constitution.
¶2 This Court held in State v. Paul that, when
interpreting the United States Constitution, the
Fourth Amendment vehicle exception applies.1
In Paul, we held that a dog sniff alert created
probable cause for an officer to search a vehicle
without a warrant.2 Paul was based on the federal Constitution and did not discuss interpretation of the Oklahoma constitutional provision against warrantless search and seizure.3 I
agree with the majority that, if probable cause
to search is present, federal law does not
require exigent circumstances for a warrantless
search. This Court has held that, under our
state constitution, an officer must have both
probable cause and exigent circumstances to
conduct a warrantless search after a vehicle
stop.4 Our Davis and Whitehead cases sharply
distinguish the permissible scope of a search
which conforms to probable cause to believe a
specific offense has occurred, from the excessive scope of an entire search of a vehicle and
its containers based only on a narrow probable
cause. The Court makes clear that probable
cause to search a vehicle must be based on
more than mere suspicion of a crime, and that
absent exigent circumstances, the warrantless
search must be limited to the extent of the
probable cause. In each of these Oklahoma
cases, the deciding issue appears to have been
the absence of any probable cause whatsoever
2273
for a vehicle search based on the facts of the
stops, rather than the absence of exigent circumstances.
¶3 The majority admits that this Court can,
and has, interpreted various provisions of the
Oklahoma Constitution differently than federal
courts have interpreted their federal constitutional counterparts.5 The majority recognizes
that this is one such instance. The majority
offers no particular criticism of this Court’s
analyses or holdings in Davis and Whitehead.
However, the majority concludes that we
should abandon our separate state constitutional protection, since the federal interpretation of federal law rests “on sound principles”.
In fact, the federal interpretation of the Fourth
Amendment on this issue is most unsound.
However, irrespective of one’s view as to the
Fourth Amendment, I fail to see why we
should abandon the protections afforded to
our citizens by our state constitution.
¶4 Applying all the applicable law, I would
affirm this case. Officer Burpo saw Gomez
commit a traffic violation and pulled him over.
When he approached the car, Burpo smelled
alcohol and saw two unopened six-packs of
some alcoholic beverage, with one missing.
Burpo looked in the car for the missing container. He found an open Bacardi cooler in the
center console. When he picked up the bottle,
he could see a pipe, methamphetamine, and a
scale. As the majority notes, a stop is justified
where an officer has probable cause to believe
a traffic law has been violated.6 Officer Burpo
had probable cause to stop Gomez. After smelling the alcohol and seeing the bottles, Burpo
also had probable cause to search the car for an
open container.7 I can agree with the majority
that Burpo lawfully looked around the car for
an open container.
¶5 At this point I part ways with the majority
analysis. The majority suggests that Burpo’s
probable cause to search for an open container
gave him the right to search any portion of the
entire car, including any contained areas within
the car. Under the Oklahoma Constitution, I
believe that Burpo had probable cause to
search for an open container or evidence of
alcohol-related offenses. To justify any further
search of the vehicle and containers within it,
either Burpo would need probable cause to
believe that a different offense was committed,
or some exigent circumstance must have been
present. Burpo had no probable cause to suspect any offense other than a violation of the
open container law, and the record does not
reflect any exigent circumstances. However, I
2274
believe the remainder of the search, which
found the drugs and paraphernalia, is justified
by the “plain view” exception. No warrant is
required where an officer sees contraband or
evidence of a crime in plain view.8 Burpo saw
the contraband in plain view when he picked
up the open Bacardi container. I would uphold
the search, and Gomez’s subsequent conviction, on these grounds.
¶6 This conviction could be upheld under
existing law. However, in affirming the case the
majority needlessly overrules Oklahoma precedent interpreting the Oklahoma Constitution,
in order to substitute a less demanding federal
standard. This Court has determined that, in
this area, Oklahoma citizens are afforded more
protection than federal Fourth Amendment
law requires. I cannot agree to any decision
which would lessen that protection. I dissent to
the portion of the majority opinion that does
so.
¶7 I am authorized to state that Judge Charles
Johnson joins in this opinion.
1. State v. Paul, 2003 OK CR 1, 62 P.3d 389, 390.
2. Id.
3. In footnote 10, the majority suggests that my dissent relies upon
Paul. On the contrary, I cite Paul to acknowledge our existing law as it
interprets the federal Constitution, and for no other reason. Paul was
decided on purely federal Fourth Amendment grounds, not under the
Oklahoma Constitution. I also note again that this discussion of Paul’s
status obscures the real issue in this case. The majority could rely on
the settled law I discuss, combining probable cause with the plain view
exception, to decide this case. However, the majority chooses to focus
on the differences in interpretation between the Oklahoma Constitution and federal constitutional law, refer to these differences as inconsistencies within state law, abandon our state cases, and adopt the
federal interpretation for the Oklahoma constitutional provision.
4. Davis v. State, 1980 OK CR 114, 620 P.2d 1346, 1347; Whitehead v.
State, 1976 OK CR 35, 546 P.2d 273, 275; Lawson v. State, 1971 OK CR
184, 484 P.2d 1337, 1341.
5. See, e.g., Dennis v. State, 1999 OK CR 23, 990 P.2d 277, 285-86. See
also Brumfield v. State, 2007 OK CR 10, 155 P.3d 826, 833 (state statute
may give broader protection than federal Constitution).
6. Dufries v. State, 2006 OK CR 13, 133 P.3d 887, 889.
7. Paul, 62 P.3d at 390; Hallcy v. State, 2007 OK CR 2, 153 P.3d 66,
68-69.
8. Wackerly v. State, 2000 OK CR 15, 12 P.3d 1, 9; Nix v. Williams, 467
U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984).
2007 OK CR 34
RICKY RAY MALONE, Appellant, v. STATE
OF OKLAHOMA, Appellee.
No. D-2005-600. August 31, 2007
OPINION
CHAPEL, JUDGE:
¶1 Ricky Ray Malone, Appellant, was tried
by jury and convicted of First-Degree Malice
Aforethought Murder, in violation of 21 O.
S.2001, §701.7 (A), in the District Court of
Comanche County, Case No. CF-2005-147.1 In
the sentencing phase, the jury recommended a
Vol. 78 — No. 25 — 9/15/2007
death sentence for the murder, after finding
three aggravating circumstances: 1) that the
murder was “committed for the purpose of
avoiding or preventing a lawful arrest or prosecution”; 2) that there was a “probability” that
Malone would “commit criminal acts of violence that would constitute a continuing threat
to society”; and 3) that the “victim of the murder was a peace officer . . . , and such person
was killed while in performance of official
duty.”2 In accordance with the jury’s recommendation, the trial court, the Honorable Mark
R. Smith, sentenced Malone to death. Malone
has properly perfected this direct appeal of his
conviction and sentence.3
FACTS
¶2 Around 6:20 a.m., on December 26, 2003,
Abigail Robles was delivering newspapers in
rural Cotton County, just east of Devol, Oklahoma. While driving on Booher Road, she
came across a parked white car on the side of
the dirt road.4 The white male driver was laying in the front seat, but he was not moving,
and his feet were hanging outside the car.
Robles thought he might be dead. She drove to
the home of Oklahoma Highway Patrol
(“OHP”) Trooper Nik Green, which was less
than a mile away, to ask for his help. Green had
been sleeping, but answered the door, listened
to Robles’s story, told her not to worry about
waking him, and reassured her that he would
check out the situation for her.
¶3 At 6:28 a.m., Trooper Green telephoned
OHP dispatch in Lawton and reported what
Robles had seen. Green was not scheduled to
be on duty that day until 9:00 a.m., but when
he learned that the on-duty Cotton County
trooper was not available, he volunteered to go
check out the situation himself. He went on
duty at 6:37 a.m. and informed dispatch shortly
thereafter that he had arrived at the scene and
discovered a white four-door vehicle and a
white male. Green attempted to provide the
vehicle tag number, but dispatch could not
understand the number, due to radio interference. This was Green’s final contact with OHP
dispatch. After approximately ten minutes dispatch tried to contact Green with a welfare
check (“10-90”), but got no response. After
numerous unanswered welfare checks to
Green’s badge number (#198) and an unanswered page, dispatch sent various units to
Trooper Green’s location and contacted the
Cotton County Sheriff’s Department.
¶4 The first person to arrive at the scene was
Deputy Charles Thompson of the Cotton Coun-
Vol. 78 — No. 25 — 9/15/2007
ty Sheriff’s Department.5 He arrived at 7:15
a.m., wearing pajama bottoms, a t-shirt, and
sandals. Trooper Green’s patrol car was parked
on the right side of the road, with the driver’s
side door open and the headlights on. Thompson walked around the area until he discovered his friend’s dead body, face down in the
ditch, with his arms and legs spread, a few feet
to the right and front of his patrol car.6 It was
obvious from the massive head wound to the
back of his head that Green had been shot and
that he was dead. Thompson immediately
called his dispatch, and the investigation of
Green’s murder began.
¶5 What happened on Booher Road from the
time of Green’s arrival until his death can be
largely pieced together from the physical evidence at the scene, statements made by Ricky
Ray Malone, and the contents of a videotape
recorded by the “Dashcam” video recorder
mounted in Green’s vehicle. According to statements made by Malone, Trooper Green arrived
at the scene and attempted to rouse Malone by
talking to him and shining a flashlight in his
face. Officers who investigated testified that it
was obvious from evidence left at the scene
that someone had been manufacturing methamphetamine outside his or her car that night.
It would have been obvious to Green as well.7
¶6 Green apparently informed Malone that
he was under arrest and was able to get a
handcuff on his right wrist, before Malone
decided that he was not going to go quietly
back to jail.8 Malone somehow broke free and a
battle ensued between the two men that tore
up the grass and dirt in the area and knocked
down a barbed wire fence. Malone’s John
Deere cap ended up in the barbed wire fence,
and Green’s baton and a Glock 9 mm pistol
were left lying in the ditch.9 The fight resulted
in numerous scrapes, cuts, and bruises to both
men.
¶7 Trooper Green’s Dashcam recorder was
switched on sometime during the course of
this monumental struggle.10 Because the Dashcam was directed forward, the video shows
only the things that appeared immediately in
front of Green’s vehicle. The video never shows
Trooper Green, but the audio on the videotape,
though garbled and sometimes hard to understand, contains a poignant and heartbreaking
record of the verbal exchanges between Malone and Green during the six minutes preceding
Green’s death.
¶8 The initial sounds on the audio are mostly
grunting and unintelligible, as the men seem-
2275
ingly struggle for control. Then Malone appears
to gain control and tells Green to lay there and
not turn over. Green tells Malone that he didn’t
have a problem with Malone and that he came
to help him. He tells Malone, “Hey, run if you
want to go, but leave me.” Green pleads,
“Please! Please! I’ve got children.” Green also
tells Malone that he is married and begs Malone not to shoot him. Meanwhile, Malone repeatedly asks Green where “the keys” are, apparently referring to the keys for the handcuff that
is on his wrist, and demands that Green stop
moving and keep his hands up. Malone threatens to kill Green if he moves, but also promises
that he won’t shoot him if Green holds still.
Malone searches at least one of Green’s pockets, but fails to find the keys.11 When Green
suggests that he has another set of keys in his
vehicle, Malone responds, “I don’t need to
know.” Green apparently recognizes the significance of this statement and after a few seconds begins pleading again, “Please don’t. For
the name of Jesus Christ. He’ll deliver. Lord
Jesus!”12 At that moment a shot can be heard,
followed by eleven seconds of silence, and then
another shot.13
¶9 Just after the second shot, Malone appears
in the videotape, walking in front of Trooper
Green’s car and behind the open trunk of his
white, four-door vehicle. Malone can be seen
hurriedly “cleaning up” his makeshift methamphetamine lab — dumping containers of
liquid that are sitting on the ground, loading
numerous items into the back seat and trunk,
throwing and kicking things off the road, and
lowering the front hood.14 Less than two minutes after shooting Green, Malone starts his car
to drive away, but the car stalls. After almost
thirty seconds, the car starts, and by 6:55 a.m.
Malone has left the scene.
¶10 During the trial the State presented the
testimony of Malone’s four meth-making comrades: Tammy Sturdevant (Malone’s sister),
Tyson Anthony (her boyfriend), and J.C. and
Jaime Rosser (who were married).15 In December of 2003, these four people were living
together in Sturdevant’s trailer in Lawton and
were jointly engaged, along with Malone, in a
regular process of gathering and preparing the
ingredients, making or “cooking” methamphetamine, and then using and distributing the
methamphetamine. They all testified that they
spent much of Christmas Day in 2003 preparing for a “cook” that night and that when
Anthony got sick, Malone decided to go ahead.
Malone left late that night, in Sturdevant’s
white Geo Spectrum, to complete the cook on
his own.
2276
¶11 Tyson Anthony testified that Malone
appeared in his bedroom about 8:00 a.m. on the
morning of December 26 and said that he had
shot someone and needed Anthony to hide his
sister’s car.16 Anthony hid the car behind a day
care, about 100 yards from their trailer. Anthony testified that he saw Malone again around
5:00 p.m. that night, that Malone had already
partially shaved his head, and that he asked
Anthony to go get him some bleach to dye his
hair, which Anthony did. Later that night
Anthony went with Malone to a hotel in Norman, and Malone told him more about what
had happened.17 Malone showed him the gun
he had used, which Malone said belonged to
“the cop.”18 Anthony testified that Malone also
referred to the officer as a “Hi-Po,” meaning a
highway patrolman. Anthony acknowledged
that he himself put the gun in a hotel trash can
and covered it up with trash.19 Anthony left the
hotel and went home, but later called Malone,
who was still there, and suggested that he
might be able to use the gun to frame someone
else.20
¶12 J.C. Rosser testified that when Malone
came home on the morning of December 26,
2003, he had a handcuff on his right wrist,
bruising on his hands, and some blood on his
shirt. 21 Malone told Rosser that he had “killed
a cop.” Malone asked Rosser to give him a ride
to his home in Duncan, which Rosser agreed to
do. Rosser testified that he and his wife got in
the car and that Malone came out wearing different clothes and carrying a white plastic garbage bag. They stopped at Sturdevant’s car,
and Malone retrieved a big black case from it.
They also stopped at a wooded area on Camel
Back Road, where Malone got out and disposed of the white bag.22 J.C. Rosser testified
that on the way to Duncan, Malone told the
Rossers that he had killed a state trooper and
that he “was real sorry.”23 Rosser testified that
he dropped Malone off on the back side of his
Duncan home and that he and Jaime went in
through the front. They waited in the garage
while Malone got the big black case and a gun
out of the car and then waited while Malone
got his own handcuff key. Malone showed
them a “black Glock,” saying it was the one
he’d used to kill the trooper. Rosser testified
that the gun had blood and grass and hair on
it. Malone also told Rosser that he “fucked up”
and was “sorry.”24
¶13 Jaime Rosser testified that her husband
woke her around 8:30 a.m., on December 26,
2003, and insisted she go with him to Duncan.25
She waited in the car with her husband until
Malone came out with a white garbage bag and
Vol. 78 — No. 25 — 9/15/2007
got in the back seat. Rosser testified that on the
way to Duncan, Malone stated, “I killed him. I
killed him. I killed a cop.” When she turned to
look at him, she saw that he had a handcuff on
his right wrist. Rosser testified that Malone
said he had shot “a Hi-Po” two times in the
head and that on the first shot, “the bone part
of the skull stuck to the gun, and so [I] shot it
again to get the gun clean.”26 Jaime Rosser testified consistently with her husband regarding
Malone disposing of the white bag and their
time in his home that morning.27 She also testified that when she saw Malone back at the
trailer that night, he could tell she was upset
and told her, “Don’t think of it as me killing
him; think of him as an animal and I was hunting.” Malone also told her that he had gotten
everything “cleaned up” and that “there
shouldn’t be anything left out there to identify
[me].” When Rosser asked him, “What about
the tape?” referring to the patrol car videotapes
often seen on TV, Malone responded, “Oh,
fuck.”28
¶14 Tammy Sturdevant, Malone’s sister, also
testified.29 She recalled that Malone borrowed
Anthony’s black handgun before leaving to do
the cook on Christmas Night, “just in case
there was trouble.” She next saw her brother at
around 8:00 a.m. the next morning, when he
came into her bedroom and said, “I need your
help. I need you to call your car in stolen. I — I
shot a trooper.” Malone then told her and
Anthony the details of what had happened.30
Sturdevant testified that Malone had a handcuff hanging from his right wrist, which was
bruised and swollen, and his hands were cut.
Sturdevant acknowledged that she got Malone
the white trash bag for his clothes, and later
that day she dyed his hair blond and cut it.31
Sturdevant testified that she, her brother, and
all of the occupants of her trailer were heavily
into methamphetamine in December of 2003,
that methamphetamine distribution was their
sole source of income, and that they were all
“high all the time,” from December 20, 2003,
until the morning of the shooting.32
¶15 By December 29, 2003, investigators had
found the car driven by Malone, recovered his
clothes on Camel Back Road, and obtained significant information from J.C. Rosser and Tyson
Anthony about Malone’s involvement in the
killing of Trooper Green.33 In an interview on
this date, Malone acknowledged that what
Anthony had told investigators — that Malone
had killed the trooper, that he shouldn’t have
done so, and how it happened — was “true” or
“probably true.”34 When pressed to take responsibility himself, Malone responded, “I can’t — I
Vol. 78 — No. 25 — 9/15/2007
can’t say. If I say anything, I’m going to get the
death penalty.” Later in the interview Malone
stated, “Well, maybe it was an accident.”
¶16 Malone testified at trial. He provided a
history of his involvement with drugs, legal
and illegal, beginning with steroids to get bigger when he was a firefighter, including Prozac
to combat depression when his marriage was
in trouble, and then Lortabs, which began with
a football injury but developed into an addiction. Malone testified that he began using
methamphetamine in April of 2002, around the
time his mother died. He described the effects
of the drug and how his usage of methamphetamine, like his usage of pain pills, increased
over time.35 He acknowledged that by October
of 2003, his methamphetamine addiction had
caused him to be fired from his jobs at the fire
department and as an EMT with an ambulance
service, and that all of his income was coming
from making and selling methamphetamine.
Malone claimed that he didn’t sleep from
December 4 through December 26, 2003, due to
being continuously “amped up on meth,” and
that he was hearing voices and seeing things
during this time.36
¶17 Regarding the night of December 25,
2003, Malone described hearing voices and seeing “people jumping … around” as he was
stealing and transporting the anhydrous
ammonia needed for the cook. He testified that
while in the middle of the cook, his back started hurting, so he took some Lortabs and then
passed out. He described waking up to a gun
and a flashlight in his face and testified that he
thought he was about to get robbed or killed.
Malone repeatedly denied that he knew Green
was connected with law enforcement, until
after he had killed him.37 He described finding
a gun and the other man begging him not to
shoot. Malone testified that the other man kept
trying to get up and that the “voices in my
head” told him to shoot him, because the man
was “going to get me.” So he shot him.38
¶18 Dr. David Smith, a California physician
specializing in addiction medicine, testified as
an expert witness on Malone’s behalf. He provided extensive testimony on his own expertise, particularly regarding methamphetamine,
on genetic predisposition to addiction and
depression, and on the science of how methamphetamine affects the brain. In particular,
Smith explained how when someone is
extremely “intoxicated” on methamphetamine,
to the point of “amphetamine psychosis,” the
effect on the person is comparable to paranoid
schizophrenia. He explained that like paranoid
2277
schizophrenia, amphetamine psychosis can
include auditory and visual hallucinations,
where an individual will respond to non-existent environmental stimuli or threats.39 Dr.
Smith also described less severe, but still serious methamphetamine effects, including a
“rage reaction,” where the individual responds
to an actual threat, but overreacts.
¶19 Dr. Smith testified that he had met with
Malone the previous day (a Sunday) and
reviewed various materials associated with the
case, including the Dashcam video. Smith testified about the substantial history of addiction
and depression in Malone’s family and the history and extent of Malone’s drug abuse, including how much he was using and its effect on
his life at the time of the shooting.40 Smith
described the time Malone was convinced he
had seen Big Foot, whom Malone thought was
after him, which Smith indicated was an example of someone experiencing amphetamine
psychosis. He also recounted that Malone was
smoking methamphetamine “every hour” and
was “hearing voices” and “seeing things” on
the night before and morning of his encounter
with Green.41 Dr. Smith concluded that Malone
was most likely in a state of “amphetamine
psychosis” on the morning of the shooting,
making him likely to engage in “crazy, irrational violence.” He further testified that he did
not think Malone could have formed the intent
to commit first-degree murder.42
ANALYSIS
¶20 In Proposition I, Malone argues that
errors in the jury instructions regarding his
voluntary intoxication defense violated his
right to a fair trial. Initially, the State responds
that the evidence presented by Malone was
inadequate to even require instructions on voluntary intoxication; hence any error in the
instructions given could not have harmed
him.
¶21 We rejected a parallel claim made by the
State just last year in Coddington v. State.43 In
Coddington, we held that expert opinion testimony that is otherwise admissible is not objectionable simply because it embraces an “ultimate issue” to be decided by the trier of fact.44
In particular, we held that an expert on the
effects of illegal drugs or other intoxicating
substances could properly offer an opinion on
whether a defendant was so affected by the use
of such substances that he or she was unable to
form the specific intent required for firstdegree malice murder, i.e., “malice aforethought,” defined as a deliberate intent to kill.45
2278
In Coddington, this Court rejected the State’s
argument that the defendant’s jury should not
have been instructed on the defense of voluntary intoxication.46 We do so again here.
¶22 Malone, like Coddington, raised sufficient evidence to require the trial court to
instruct the jury on his defense of voluntary
intoxication.47 The test for evaluating whether
sufficient evidence has been introduced to
instruct the jury on the defense of voluntary
intoxication is the same as the test used regarding other affirmative defenses. Voluntary intoxication instructions should be given when evidence has been introduced at trial that is adequate to raise that defense, i.e., to establish a
prima facie case of voluntary intoxication, as
that defense is defined under our law.48 As we
have emphasized in the past and in regard to
other affirmative defenses, “[t]he evidence of
the defense may come from any source and
should not be weighed by the trial court. The
trial court should leave the weighing of the
evidence to the finders of fact, in whose
judgment our system of trial by jury is
based.”49
¶23 We find that the evidence presented at
Malone’s trial adequately raised the defense of
voluntary intoxication. Hence the trial court
properly determined that his jury should be
instructed on this defense. The evidence presented at Malone’s trial — in particular, Malone’s own testimony about his drug use and the
effects it was having on him at the time of the
shooting, as well as the testimony of Dr. Smith
that Malone could not have formed the intent
of malice aforethought — when looked at simply to determine if, on its face, it established a
prima case of intoxication, certainly was sufficient to raise a voluntary intoxication defense,
such that Malone was entitled to have his jury
instructed on this defense.
¶24 The State acknowledges that the voluntary intoxication instructions provided to
Malone’s jury were legally incorrect. The State
maintains, however, that the errors in the
instructions were harmless beyond a reasonable doubt. We consider the instructions given
at Malone’s trial as a whole. We begin by noting that defense counsel did not raise an objection to the jury instructions given at Malone’s
trial.50 Hence we review these instructions for
plain error.51
¶25 Malone’s jury was correctly informed
that evidence had been introduced in support
of intoxication as a defense to the charge of
first-degree murder.52 The next instruction,
Vol. 78 — No. 25 — 9/15/2007
however, which purported to give the requirements for establishing an intoxication defense,
was wrong. Malone’s Instruction No. 38 stated
as follows:
The crime of murder in the first degree has
an element the specific criminal intent of
Mens Rea. A person in entitled to the
defense of intoxication if that person was
incapable of forming the specific criminal
intent because of his intoxication.
The State concedes that this instruction “erroneously omits ‘malice aforethought’ as the
element of first degree murder to which the
voluntary intoxication defense applies.”
¶26 The applicable uniform instruction in
effect at the time, OUIJI-CR (2d) 8-36, stated as
follows:
The crime of [Crime Charged in Information/Indictment] has an element the (specific criminal intent of [Specify Specific
Mens Rea])/special mental element of
[Specify Special Mental State]). A person
in entitled to the defense of intoxication if
that person was incapable of forming the
(specific criminal intent)/(special mental
element of the crime) because of his/her
intoxication.
Hence it is important to evaluate the instruction given in Malone’s case in the context of the
uniform instruction in place at the time, which
itself had two obvious “typos”/grammatical
errors.53
¶27 We begin by noting that although this
Court has repeatedly announced that district
courts are required to use the applicable uniform instructions, unless the trial court determines that those instructions do not accurately
state the law,54 where it is obvious that a uniform
instruction contains a typographical error,
grammatical error, or other similar mistake, the
district court should correct the error in the
instruction provided to the jury.55
¶28 In the current case this Court is not
troubled by the missing “as” in the first sentence or the word “in” in the second sentence
of Malone’s Instruction No. 38. We are confident that his jury was not confused or misled
by these small errors, which followed the
applicable uniform instruction. The use of the
word “Mens Rea” in the first sentence, however, is a much more significant error. This
word should not have appeared in the instructions provided to Malone’s jury, nor should it
Vol. 78 — No. 25 — 9/15/2007
appear in any version of OUJI-CR 8-36 that is
provided to a jury.
¶29 Rather, it was the duty of the trial court
to use the template of OUJI-CR 8-36 to formulate the appropriate instruction in Malone’s
case, by filling in the specific criminal intent at
issue, namely, “malice aforethought,” in place
of the bracketed phrase “Specify Specific Mens
Rea.”56 And it was the duty of the parties, both
defense counsel and the State, to assist in
ensuring that this was done appropriately.
¶30 The following would have been a proper
and legally accurate version of Instruction No.
38 in Malone’s trial:
The crime of murder in the first degree has
as an element the specific criminal intent of
malice aforethought. A person is entitled to
the defense of voluntary intoxication if that
person was incapable of forming this
specific criminal intent because of his
intoxication.57
Since “malice aforethought” is defined by our
law as a deliberate intent to kill, it would also
have been acceptable for the first sentence to
read: “The crime of murder in the first degree
has as an element the specific criminal intent of
a deliberate intent to kill.”58 As the State
acknowledges, however, instructing Malone’s
jury that “The crime of murder in the first
degree has an element the specific criminal
intent of Mens Rea” was incorrect, confusing,
and legally nonsensical. This is a serious error,
and it is not corrected or mitigated by the other
intoxication instructions provided at Malone’s
trial.59
¶31 In fact, some of the other intoxication
instructions may have further confused Malone’s jury regarding what exactly the specific
mental state was that had to be overcome by
intoxication, in order for Malone to prevail on
his voluntary intoxication defense. Malone’s
Instruction No. 39 accurately tracked OUJICR(2d) 8-37 and informed his jury that the
intoxication defense could be established “by
proof of intoxication caused by drugs.”60 Malone’s Instruction No. 40 likewise tracked OUJICR(2d) 8-38, regarding the State’s burden to
prove beyond a reasonable doubt that Malone
possessed the specific intent at issue and was
not prevented by intoxication from forming
this intent.61 Unfortunately, this instruction did
not inform Malone’s jury what specific mental
state was at issue, referring again to the general
phrase “specific criminal intent,” rather than
the particular mental state at issue in this case.
2279
¶32 Finally, Malone’s Instruction No. 41, the
last intoxication instruction, stated as follows:
“Drugs” are defined as substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in
a human or other animal; substances other
than food intended to affect the structure
or any function of the body of a human or
other animal; under the law, the substance
methamphetamine is a drug.
“Incapable of Forming Special Mental Element” is defined as the state in which one’s
mental powers have been overcome
through intoxication, rendering it impossible to form the special state of mind known
as willfully.
“Incapable of Forming Specific Criminal
Intent” is defined as the state in which
one’s mental powers have been overcome
through intoxication, rendering it impossible to form a criminal intent.
“Intoxication” is defined as a state in which
a person is so far under the influence of an
intoxicating drug that his judgment is
impaired.
This instruction tracked OUJI-CR(2d) 8-39 as it
existed at the time.62 Yet, once again, it was not
properly tailored to Malone’s case.63
¶33 Malone’s counsel correctly notes that
(following the version of 8-38 in effect at the
time) the definition of “incapable of forming
specific criminal intent” refers to intoxication
that overcomes a person’s mental powers and
renders it impossible “to form a criminal
intent.” This definition is unhelpful at best and
confusing/misleading at worst.64 This Court
directs that the Oklahoma Uniform Jury
Instruction Committee review the current voluntary intoxication instructions and propose
amendments in accord with this opinion.65
¶34 This Court does not hereby conclude
that Oklahoma’s uniform instructions for the
voluntary intoxication defense are or were
legally inaccurate, inadequate, or unconstitutional. When properly utilized, OUJI-CR(2d)
8-36 did and still does specifically inform a jury
what particular criminal intent/mens rea is at
stake. Hence it is legally accurate and adequate
and provides due notice regarding the defendant’s defense. We simply recognize that the
instructions could be and should be improved,
and we direct that this be done.
¶35 Most jurors come to their assigned task
with a basic understanding of what their job
2280
will be, but individual perceptions may be confused or flawed regarding many of the specifics of jury service and the jury’s role. And very
few jurors are versed in the particular elements
of the various crimes and defenses they may be
asked to evaluate. Hence jury instructions
serve a fundamental and critical role in our
system of trial by jury. Jury instructions serve
as the jury’s job description, rule book, and
mission statement. The key “institutional
actors” in our criminal system — trial courts,
prosecutors, defense counsel, and this Court
— should all do everything reasonably possible
to make the contents of these juror guidebooks
as clear, readable, and legally accurate as they
can possibly be. And this Court appreciates
and acknowledges the work of the Oklahoma
Court of Criminal Appeals Committee for
Preparation of Uniform Jury Instructions for its
consistent and committed efforts in assisting
this Court in this regard.
¶36 This leaves us with the problem in the
current case that Malone’s jury instructions did
not, by themselves, adequately or accurately
inform his jury that he should prevail on his
intoxication defense if he could establish that
due to methamphetamine intoxication at the
time of the crime, he was unable to form the
required “malice aforethought” for first-degree
murder, i.e., if the evidence established he was
unable to form a deliberate intent to kill Trooper Green.66 This Court concludes that the failure
of Malone’s jury instructions to accurately
instruct his jury in this regard constitutes plain
error. This was the critical question in determining whether Malone could prevail on his
voluntary intoxication defense, and his jury
instructions, even read as a whole, fail to adequately articulate this standard.67
¶37 Hence this Court must evaluate the
effect of this instructional error and determine
whether or not it was harmless beyond a reasonable doubt.68 We recognize that such an
infirmity can and often will require reversal,
particularly where the defendant has requested
the instructions and adequately raised the
defense at issue. Nevertheless, upon a thorough review of the entire record in this case,
this Court is convinced that despite the inadequacy of the jury instructions, no juror could
possibly have been unaware that Malone’s
defense was voluntary intoxication and that he
should prevail on this defense if he could
establish that due to his drug-induced intoxication, he did not deliberately intend to kill
Green. A review of the transcripts in this case
makes readily apparent that Malone’s fundamental defense — from opening statements to
Vol. 78 — No. 25 — 9/15/2007
closing arguments of the first stage of his trial
— was that his methamphetamine use, coupled
with his use of Lortab, left him so intoxicated
that he was unable to and did not intend to kill
Trooper Green.69 More importantly, this Court
is convinced that there was no reasonable possibility that Malone’s jury would have agreed
with and accepted his voluntary intoxication
defense, regardless of how thoroughly the jury
was instructed upon it.
¶38 The real problem for Malone was not his
jury instructions. The problem was that no reasonable juror who heard all the evidence in the
first stage of his trial could possibly have concluded that he was unable to form “malice
aforethought” at the time of the shooting or
that he did not deliberately intend to kill
Trooper Green.70 The evidence in this case,
though not uncontested, was overwhelming
and clearly established that Malone knew what
he was doing and deliberately chose to shoot
and kill Green.71
¶39 Malone’s testimony about what happened and his lack of comprehension at the
time of the shooting was thoroughly impeached
by the State, mainly by going through the
audio contents of the Dashcam video, in addition to the physical evidence at the crime
scene.72 The prosecutor focused particularly on
the theme that Malone’s words and actions,
both during his encounter with Green and in
the days afterward, were logical and goal-oriented and did not suggest that Malone was
experiencing any sort of disconnect from reality. The prosecutor cross examined Malone
about the fact that he never mentioned anything to his friends about seeing things or hearing “voices” on the morning of the shooting.73
Malone acknowledged on cross examination
that he was “solely responsible for this trooper’s death,” and that he shot him “[t]o make
sure he don’t get up” and “to keep him down.”
Although Malone would not ultimately admit
that he intended to kill Green, his own statements — on tape and afterward — as well as
the two close-range shots fired purposefully
into the back of Green’s head, leave no reasonable doubt about Malone’s intent.
¶40 Furthermore, although Malone presented an impressive expert on methamphetamine
and its potential effects generally, Dr. Smith’s
case-specific testimony about Malone and his
likely mental state at the time of the shooting
was thoroughly and convincingly impeached
by the State.74 The State demonstrated, through
cross examination, that Smith had met with
Malone for at most two hours, on a single occaVol. 78 — No. 25 — 9/15/2007
sion, in the middle of his trial; that Dr. Smith
was remarkably unquestioning when it came
to accepting the credibility of Malone’s statements; that he could not verify Malone’s reports
regarding the extent of his drug use at the time;
that he did not talk to any of Malone’s family
members; and that Dr. Smith did not seriously
consider or take into account evidence that
contradicted Malone’s account to him.75
¶41 In fact, Dr. Smith acknowledged that up
until the preceding weekend, Malone had
maintained (and Smith’s expected testimony
had been) that Malone had a “total blackout”
about the shooting and did not remember anything, but that after meeting with Smith — who
informed Malone that such memory loss
“didn’t make sense” in the methamphetamine
context — Malone finally provided what Dr.
Smith “perceived was an accurate history,” i.e.,
the story about Malone hearing voices.76 Smith
acknowledged that there was nothing in the
Dashcam exchanges between Malone and
Green that was illogical or that suggested
Malone was delusional. Smith was also forced
to acknowledge, when presented with the
extensive evidence about Malone’s efforts to
avoid being caught, that all of these actions
were examples of “logical, goal-oriented behaviors,” and that all of them “speak against brain
impairment.”77
¶42 Although Malone presented a bare prima
facie case of intoxication and was able to produce an expert who would say that he didn’t
think Malone “could have formed the intent to
commit murder in the first degree,” Malone’s
testimony and that of his expert were thoroughly and convincingly impeached on the
issue of whether Malone could have and did
deliberately intend to kill Trooper Green. While
Malone may well have experienced “methamphetamine psychosis” at some point, such as
when he “saw Big Foot,” no reasonable juror
could have concluded, based upon the entire
record in this case, that he was in such a state
at the time he shot Green or that he did not
deliberately intend to kill Green. Consequently,
although we find plain error in the trial court’s
failure to properly instruct Malone’s jury on
his voluntary intoxication defense, we do not
hesitate to conclude that this error was harmless beyond a reasonable doubt in this case.
¶43 In Proposition II, Malone raises a claim
of first-stage prosecutorial misconduct, asserting that the State’s cross examination of Malone
was too long and unnecessarily adversarial
and that the cross examination of Dr. Smith
was overly argumentative.78 We evaluate such
2281
claims to determine whether the challenged
actions so infected the defendant’s trial that it
was rendered fundamentally unfair, such that
the jury’s verdicts cannot be relied upon.79
¶44 This Court does not accept Malone’s
assertion that the prosecutor’s tough questioning of these crucial defense witnesses was
improper. As noted above, the testimony of
these two witnesses contained much that was
worthy of pointed and thorough impeachment.80 In fact, Malone acknowledges that the
prosecutor was entitled to challenge these witnesses on the topics at issue; Malone just thinks
he should have been a bit gentler and less
repetitive in doing so.81 This Court continues to
insist that the State treat all witnesses, including a testifying defendant, with dignity and
respect and that the trial court has a continuing
duty to maintain the dignity and decorum of
the courtroom during trial.82 This does not
mean that a testifying defendant must be
treated with kid gloves. Malone recognizes
that “defense counsel utterly failed to object to
most of” the now-cited questioning — probably because it was largely unobjectionable.
While particular questions and comments may
have been inappropriate, and the cross examination of Malone could have been more efficient, we do not hesitate to conclude that the
challenged cross examinations did not constitute prosecutorial misconduct.83 Malone’s trial
was certainly not rendered unfair thereby.84
¶45 In Proposition III, Malone raises various
challenges relating to the presentation of victim impact evidence in his case. He asserts: (1)
that victim impact evidence, in general, is
unconstitutional and has no appropriate role in
Oklahoma’s capital sentencing scheme; (2) that
allowing victim impact witnesses to give a recommendation regarding the defendant’s punishment violates the Eighth Amendment; (3)
that the sentencing recommendation delivered
by Mrs. Green, the victim’s wife, exceeded the
scope of a permissible sentencing recommendation and was highly prejudicial; (4) that testimony quoting birthday cards from the victim
to his mother and sister was improper and
inadmissible hearsay; and (5) that overall, the
victim impact testimony at Malone’s trial was
too long and overly emotional. We take up
these issues in turn.
¶46 Malone’s general challenge to victim
impact evidence has been repeatedly raised by
defendants and repeatedly rejected by this
Court.85 We rely upon the Supreme Court’s
decision in Payne v. Tennessee,86 along with the
precedents of this Court following Payne, all of
2282
which recognize the limited but appropriate
role of victim impact evidence within the second stage of a capital trial.87 Hence we again
reject this challenge to victim impact evidence
as a whole.
¶47 This Court has likewise previously
addressed and rejected Malone’s challenge to
allowing victim impact witnesses to recommend a particular sentence to the jury.88 In
DeRosa v. State, we recently acknowledged that
“although the Supreme Court had earlier forbidden such evidence, the decision in Payne left
open the question of the validity of such evidence.”89 Malone strongly urges that this Court
adopt a “more appropriate” response to the
failure of Payne to address this question and
that we join the numerous other jurisdictions
that have ruled (post-Payne) that a victim family member’s sentence recommendation is
always irrelevant to a capital sentencing.90 We
note that defense counsel failed to raise this
issue in the district court; and we decline to
revisit this issue in a case in which it was
waived.91
¶48 We consider, instead, the specific victim
impact evidence presented in Malone’s case.
On December 1, 2004, Malone’s counsel filed a
Motion to Produce Victim Impact Statement, as
well as a Motion for In Camera Hearing Regarding Victim Impact Statement, asking that the
State be required to produce the victim impact
evidence that it intended to use at trial and that
the district court hold the required hearing (citing Cargle) regarding the admissibility of this
evidence. On April 4, 2005, the district court
issued an order resolving most of Malone’s
pending motions, within which the court noted
that the State had “agreed to produce victim
impact statements, if necessary prior to such
statements being introduced at trial.” This
same order also summarily granted Malone’s
motion for an in camera hearing on the victim
impact statements.
¶49 The record in this case does not establish
that the State ever produced its victim impact
evidence, however, defense counsel conceded
at oral argument that this evidence was provided to defense counsel prior to trial. The
record also contains no indication that a hearing was ever held before the district court
about this evidence; and the State conceded at
oral argument that it could not find any evidence that a Cargle victim-impact hearing was
held in this case.92 In fact, the transcribed hearings and trial record in this case contain no
substantive discussion of this evidence prior to
its introduction at Malone’s trial — and no
Vol. 78 — No. 25 — 9/15/2007
objection from defense counsel in this regard.93
In addition, this Court notes that the secondstage instructions provided to Malone’s jury
failed to include the required uniform instruction informing the jury about the role of victim
impact evidence in the jury’s sentencing determination.94 Yet defense counsel failed to raise
any objection to any aspect of the victim impact
testimony that was introduced at trial or to the
failure of the jury instructions to address this
issue.95 Hence we review only for plain error.96
¶50 The State presented three victim impact
witnesses at Malone’s trial: Nita Bowles (the
victim’s mother), Karen Huyssoon (the victim’s
sister), and Linda Green (the victim’s wife).97
After asking Bowles a few questions, to establish that she was the mother of two children,
Nikky Green and Karen Huyssoon, the prosecutor essentially turned the stage over to
Bowles, who provided a narrative that covers
over thirteen transcript pages, without interruption by either question or objection.98 Following a brief recess, the State then presented
the testimony of Karen Huyssoon. After some
basic questions to establish that she was the
sister of Green and was married and had three
children of her own, the prosecutor again simply let this witness present a narrative.99
Huyssoon’s victim impact testimony covers
approximately six transcript pages.100
¶51 The final witness for the State was Linda
Green, wife of Nik Green and mother of their
three daughters.101 She testified that the family
lived next to the First Baptist Church in Devol,
Oklahoma, because her husband had been the
youth pastor and associate pastor there. She
testified about what she overheard from their
bedroom on the morning of December 26, 2003,
when someone came to their door, and about
her husband coming to kiss her good-bye,
already in uniform, and telling her he was
“going to go 10-8” early that day. She then
described her mounting anxiety that morning,
as she began to get information that something
might be wrong and was eventually informed,
by the dispatcher, that her husband was dead.
After describing her reaction to this horrifying
news, Mrs. Green suggested that the easiest
way for her to provide her victim impact
testimony was to read from her prepared
statement.
¶52 In this prepared statement, which covers
over nine transcript pages, Mrs. Green described
how she felt like she “prayed Nik into [her]
life,” since she prayed that God would send
her “a Godly man, a good husband, and a loving dad,” and her husband was all of these
Vol. 78 — No. 25 — 9/15/2007
things and more.102 She described being in
denial about his death for months and about
how hard it was to find herself raising three
children alone. She described experiencing
deep, gripping, physical pain, which she attributed to “broken heart syndrome,” and having
difficulty breathing and feeling her heart racing, with no apparent physical cause. She also
described the emotional struggles of “living
single in a double world” and always feeling
“lost and out of place.” Mrs. Green testified
that she had lost her best friend and soulmate,
but that the hardest thing was “to press on
with our daughters.” She testified that their
oldest child, Cortni, suffered from depression
and severe headaches and had become afraid
of the dark; that their middle daughter, Brooklyn, suffered from abdominal pain, for which a
physical cause couldn’t be found, and that she
wouldn’t talk about her feelings and fears to
anyone; and that their youngest child, Morgyn,
frequently had nightmares and pronounced
separation anxiety.
¶53 Mrs. Green testified that prayer had
always been important in the family, but that
now their prayers “reflect pain and their longing for their dad.” She testified about how she
wanted to lift the spirits of the family toward
the future, but that they were “caught in the
present, our lives revolving around what we’ve
lost, and, quite frankly, who is responsible for
putting us in this situation.” She testified that
birthdays, anniversaries, and holidays had
become “horrible experiences that we just have
to endure and just hope that we can get the day
over with as soon as possible.” She added that
“the most painful thought” she could conjure
up was of the future weddings of her three
daughters, with “no proud father to walk them
down the aisle.”
¶54 Mrs. Green then concluded her testimony with the following recommendation of
punishment for Malone:
I know, as you all do here today, that
Nik begged for his life that day. He asked
for mercy. There was no mercy shown.
Here on earth our government and those in
positions of authority, including law
enforcement, are given a devine [sic] charge
outlined in Romans 13 of the Holy Bible.
Nik took that charge very seriously every
time he went 10-8. Perhaps that is why he
was honored to be named Trooper of the
Year two of the six years he proudly served
the citizens of the State of Oklahoma.
2283
Also found in that same chapter of the
book of Romans is our charge as citizens to
do our duties and obligations, including
those as jurors in a court of law, as a devine
[sic] undertaking in upholding and enforcing the laws of our country. We know that
Nik was murdered beyond a reasonable
doubt. It is for this reason today, ladies and
gentlemen, that I beseech you to show no
mercy to him. I beg for you to give him the
maximum penalty under the laws of the
State of Oklahoma, which is the death penalty, and leave the business of mercy for
Malone in the hands of the Heavenly
Father, where it belongs.
Defense counsel asked only a few questions, in
an attempt to establish that since her husband’s
death, Mrs. Green had spoken at schools and
other organizations about the dangers of methamphetamine and how it can ruin lives.
¶55 The State acknowledges that this Court
has consistently held that victim sentencing
recommendations should be limited to “a
straight-forward, concise response to a question asking what the recommendation is” or “a
short statement of recommendation in a written statement, without amplification.”103 The
State does not attempt to argue that Mrs.
Green’s sentencing recommendation can pass
this test — or even that it is not plain error.
Rather, the State argues that any error in this
regard was harmless, in light of the totality of
the evidence presented at Malone’s trial.
¶56 We find clear plain error in this regard.
We do not blame or criticize this grieving, widowed spouse for her statements or question the
sincerity or appropriateness of the feelings she
expressed. Nevertheless, the parties who are
repeat players in our criminal justice system
— the trial court, the prosecutor, and defense
counsel — all had an obligation to ensure that
her victim impact testimony was appropriately
limited, in the manner required by this Court.104
We are particularly troubled by Mrs. Green’s
sentencing recommendation, which so obviously violates the simple rules established by
this Court.
¶57 Mrs. Green literally “beseeches” and
“begs” the jury to sentence Malone to death.
She focuses on the idea of mercy, notes that her
husband begged for mercy, but was given
none, and implores the jury to show “no
mercy” to Malone and “leave the business of
mercy for Malone in the hands of the Heavenly
Father, where it belongs.” Furthermore, and
particularly troubling to this Court, Mrs. Green
2284
invokes the Bible and suggests that jurors have
a religious obligation, beyond civic duty, in
their work as jurors, in a way that seems to
suggest that giving a death sentence may be
part of the jury’s “divine undertaking in
upholding and enforcing the laws of our country.” This invocation of religious belief and
obligation in the context of a capital sentencing
recommendation is totally inappropriate.105 We
find that the trial court committed plain error
in allowing this extended and unduly
prejudicial sentencing recommendation to be
presented at Malone’s trial.106
¶58 Malone also challenges the victim impact
testimony of Nita Bowles and Karen Huyssoon, in which they describe and read from
birthday cards that Green sent them prior to
his death.107 The record does not indicate
whether the cards were displayed to the jury;
they were not admitted into evidence. In Washington v. State,108 this Court ruled that a letter
from a victim to her parents, which was read
by the district attorney, did not constitute
proper victim impact evidence, “as it was written prior to the murder and does not address
how [the victim’s] murder affected her family.”109 This Court acknowledged that the letter
“arguably is evidence about some personal
characteristics of the victim,” since it showed
some aspects of the kind of person she was.110
Nevertheless, we held that “the letter is hearsay for which no exception applies and its
admission was error.”111 The State argues that
Green’s letters were admissible to demonstrate
the victim’s “state of mind,” but fails to explain
why this is relevant to Malone’s capital
sentencing.112
¶59 We find that the rule of Washington
applies and that the victim’s mother and sister
should not have been allowed to read from
their cards from the victim. Because defense
counsel failed to object to this evidence at trial,
we review it only for plain error. The applicability of Washington is clear; hence we find that
the admission of this evidence was plain error.
We note that if this evidence was the only
improper victim impact evidence presented,
we would find that this error was harmless. Yet
these cards were but a small portion of the
extensive victim impact evidence presented at
Malone’s trial.
¶60 Hence Malone also asserts that, overall,
the victim impact testimony presented in his
case was too long and overly emotional. We
note that the victim impact testimony in this
case comprises nearly thirty-six transcript
pages, of which twenty-eight pages were in the
Vol. 78 — No. 25 — 9/15/2007
form of uninterrupted narrative. While this
Court declines to adopt specific rules governing the length of such testimony, we note that
we have previously held that such statements
should not be “lengthy” and that they should
contain only a “quick glimpse” of the life that
has been extinguished.113 Victim impact statements were never intended to be — and should
not be allowed to become — eulogies, which
summarize the life history of the victim and
describe all of his or her best qualities. The
Supreme Court’s decision in Payne, as well as
this Court’s subsequent decisions recognizing
the legitimacy of victim impact evidence in
capital sentencing proceedings in Oklahoma,
are all based upon the idea that the State
should be allowed to present some basic evidence about the victim and his or her admirable characteristics, in order to remind the jury
that the victim is more than just a corpse and to
“balance” the array of mitigating evidence that
a capital defendant can present about his or her
background and admirable qualities.114
¶61 We conclude that the testimony of the
victim impact witnesses in this case goes well
beyond the limitations established by this
Court for appropriate victim impact evidence.
In Cargle, this Court’s seminal case on victim
impact evidence, we noted that Oklahoma’s
statutes on victim impact evidence clearly limit
this evidence to the “‘financial, emotional, psychological, and physical effects,’ or impact, of
the crime itself on the victim’s survivors; as
well as some personal characteristics of the
victim.”115 We noted that testimony about the
personal characteristics of the victim “should
constitute a ‘quick’ glimpse” of the life that the
defendant extinguished and that this evidence
“should be limited to showing how the victim’s
death is affecting or might affect the victim’s
survivors, and why the victim should not have
been killed.”116 Our Cargle decision warned that
victim impact testimony focused mainly upon
the emotional impact of a victim’s death “runs
a much greater risk of [being] questioned on
appeal.”117 And while there have been some
adjustments to this Court’s understanding of
what can qualify as victim impact evidence,118
the basic rules that govern and limit this evidence have not changed in the over eleven
years since Cargle.
¶62 We conclude that the overall victim
impact evidence presented in this case was
indeed “too much” — both too long and too
emotional. This Court recognizes that the determination of how much victim impact testimony to allow and when that testimony is “too
emotional” is a subjective determination, which
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necessarily rests, in the first instance, with the
sound discretion of the trial court. Hence the
admission of victim impact testimony — both
what is admitted and how much is admitted
— is necessarily reviewed by this Court only
for an abuse of that discretion. Of course when
the record suggests that the district court failed
to exercise its discretion over the admission of
this evidence — by failing to review and evaluate it prior to its presentation at trial — our
review is less deferential. In the current case,
where the record is silent regarding any preadmission trial court oversight, we find that
the trial court abused its discretion by failing to
constrain the amount and content of the victim
impact evidence presented at Malone’s trial.
¶63 Although the record does not establish
that the State provided adequate notice regarding its victim impact evidence, defense counsel
acknowledged at oral argument that Malone’s
trial counsel was provided this evidence prior
to trial.119 Yet providing notice does not exhaust
the State’s responsibility in this regard. As officers of the Court, prosecutors are duty-bound
to assist and guide their victim witnesses, to
ensure that their testimony is in accord with
the binding precedents of this Court. In the
current case, the failure of the trial court and
defense counsel to take any action to ensure
that this testimony was properly limited is particularly troubling. This Court finds plain error
in the failure of the trial court to hold a hearing
on the admissibility of the State’s victim impact
evidence; and we likewise find that defense
counsel’s performance was inadequate for failing to challenge this evidence.120
¶64 If any of the key players (the State,
defense counsel, or the trial court) had properly done their job regarding this evidence, it is
entirely possible that the victim impact testimony presented at Malone’s trial could have
been appropriately tailored, such that it would
all have been admissible. As it is, this Court is
left with the task of attempting to determine
whether the result of this joint failure to properly screen and constrain this evidence, particularly the highly prejudicial sentencing recommendation of Mrs. Green, is nevertheless harmless beyond a reasonable doubt. We recall that
Malone’s jury was given no instruction on how
it was to evaluate and consider the victim
impact evidence, within the context of its overall sentencing decision. And we conclude that
this failure likewise constituted plain error,
since the required uniform instruction regarding this evidence is well established and
clear.121
2285
¶65 Nevertheless, this Court acknowledges
that despite the serious and plain nature of the
numerous errors committed in connection with
the victim impact evidence in this case, the
determination of whether these errors were
harmless or not is no easy task. During the second stage of Malone’s case, the State incorporated its evidence from the first stage and presented a very substantial amount of additional
evidence in support of the aggravators alleged,
which we summarize herein. The State presented evidence that two years before the murder of Green, in late December of 2001, Malone
assaulted Glendale Reyes, a Mexican man with
cerebral palsy, by hitting him on the head from
behind with a beer bottle, rendering him unconscious for ten to fifteen minutes.122 When Reyes’s
girlfriend, Rachael Maldonado, attempted to
push Malone away from Reyes, Malone
punched her in the face. When the police
arrived, they encountered Malone, whose
right-hand knuckles were scraped and bloody,
arrested him for assault with a dangerous
weapon, and found marijuana and Lortab in
his coat pocket. Malone was later charged with
possession of the drugs, but not assault, since
no one at the party wanted to press charges.
¶66 The State also presented evidence of a
May 1998 incident, when Duncan police officers were called to the home of Malone and his
then-wife, Beth Malone, on a domestic disturbance.123 When officers arrived they observed
an altercation between Malone and Beth in the
entryway area of the home. As officers
approached they ordered Malone, who was
very angry, to let go of his wife, whom he was
holding tightly by either her arm or her hair.
Malone did not respond to these commands,
and it took a while for the officers to free Beth
from his grasp.124 It also took officers a while to
arrest and handcuff Malone. No charges were
filed, however, because Malone’s wife did not
want him charged.
¶67 The State presented further evidence
that in early September of 2003, Malone and
one other firefighter, Scott Smith, were working the overnight shift at the Duncan Fire
Department. When Smith woke up the next
morning, he discovered a clear baggie sitting
on top of the microwave, which contained a
powdered substance and drug-related paraphernalia. The baggie was not there the previous night. Smith reported this to his supervisor; and the substance was field tested and
came back positive for methamphetamine.
When confronted Malone initially denied the
baggie was his, saying it probably belonged to
another firefighter, Dewayne Kaspereit.125
2286
Malone later acknowledged, however, that if
tested, the torch lighter and other items in the
baggie would likely have his fingerprints on
them, since he had been “curious” about them
and had handled them. Malone was ultimately
charged with possession of CDS and fired from
the fire department. Shortly thereafter Malone
was also fired from his job as a paramedic with
the ambulance service.126
¶68 The State also presented evidence that on
December 15, 2003, Malone was stopped for
speeding by Highway Patrol Trooper Darin
Carman.127 During the stop Carman discovered
a loaded, short-barreled 12 gauge shotgun and
a loaded .22 rifle.128 Carman advised Malone
that the barrel on the shotgun was too short
and read and discussed with Malone the Oklahoma statute dealing with carrying concealed
firearms in a vehicle. Malone was polite and
responsive throughout the exchange, and Carman let him go without citing him for any of
the weapons-related violations. Malone was
stopped again around midnight, on the night
of December 21 into December 22, 2003 (just
four days before the murder), by Duncan
Police Officer Brian Attaway, this time for a
defective brake light. During this stop other
officers arrived with a trained drug dog, who
alerted on the driver’s side of Malone’s truck.
Malone and his passengers, J.C. and Jaime
Rosser, were removed from the truck, and
a search of the truck revealed a loaded
.22 revolver and a stun gun in the driver’s door
pocket, a loaded semi-automatic Berretta
.22 pistol under the front seat, a loaded .22 rifle
on the back seat, and also an unloaded 12
gauge shotgun, night vision goggles, and
numerous items associated with clandestine
methamphetamine manufacture, including a
substantial amount of ephedrine.129
¶69 The State also presented evidence about
two early attempts by Malone to escape from
jail and other bad behavior during the tenmonth period following his arrest on December 28, 2003. The evidence presented suggests
that Malone had a handcuff key with him
when he was arrested and that he brought it
into the Stephens County Jail by swallowing it.
The evidence suggests that Malone later
retrieved this handcuff key from his own feces
and that on the day of Green’s funeral, he
faked a heart problem and was taken to Duncan Regional Hospital. While at the hospital
Stephens County Sheriff Jimmie Bruner
observed Malone fidgeting with something
under the sheet that was covering him, but
when he was confronted, Malone put the item
in his mouth and swallowed it. An x-ray
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revealed what appeared to be a handcuff key in
Malone’s stomach. Malone was apparently
able to retrieve this handcuff key a second
time, by again going through his own feces.130
And on January 5, 2004, as Malone was being
checked prior to a scheduled transport to Cotton County Jail, Officer Tim King discovered
the handcuff key in Malone’s mouth and was
able to recover it before Malone could swallow
it again.131
¶70 Finally, the State presented evidence
about a series of October 7, 2004 incidents at
the Comanche County Detention Center, to
which Malone had been transferred. Officers
first noted that Malone was throwing paper
out of the “bean hole” of his cell door and that
water from his plugged toilet was flowing out
underneath the door. Three officers went to his
cell, restrained Malone by placing him in handcuffs and leg shackles, and ordered him to sit
on a chair outside the cell. As the two other
officers began clearing and cleaning the cell,
Sergeant Andy Moon stood guard over Malone. Malone twice stood up, after being told to
stay seated, and then began coming toward
Moon, who sprayed him in the face with “OC,”
a chemical intended to impair a person’s vision
and breathing. Malone paused, but then “shook
it off” and continued advancing toward Moon,
at which time the other officers intervened and
were able to take Malone down and get him
under control.132
¶71 Later that day Benjamen Lehew, jail
administrator for the detention center, met
with Malone, who was very upset about the
privileges Lehew had taken away from him.
Malone threatened Lehew, who then ordered
that Malone be placed in leg irons and handcuffs. Shortly thereafter Lehew was advised
that Malone had handed the leg irons and
handcuffs back to a jail officer, after escaping
from them and damaging them to the point
that they were no longer usable.133 The
State also presented evidence that during his
initial ten months in jail, Malone managed to
fashion various crude weapons, which were
discovered in his cell.134
¶72 It is probably not surprising that Malone’s counsel basically conceded that the three
aggravating circumstances alleged by the State
were met in this case; and we find that this
concession was a reasonable strategy.135 That
Malone murdered Green in order to “avoid
arrest or prosecution” for manufacturing methamphetamine and that Green was, at the time,
a “peace officer . . . killed while in performance
of official duty” were both clearly established
Vol. 78 — No. 25 — 9/15/2007
by the evidence presented in the first stage of
Malone’s trial. Furthermore, if there was any
doubt about whether Malone was a “continuing threat to society” after the first stage, there
really wasn’t much doubt that his jury would
reach this conclusion after hearing the State’s
evidence in the second stage. It seems unlikely
that Malone’s jury had much trouble deciding
that the mitigating evidence presented at trial
(which was quite limited and not particularly
powerful) was substantially outweighed by the
aggravating circumstances of his case.136
¶73 Thus the current case presents this Court
with the dilemma of essentially excusing the
commission of serious and obvious errors in
the presentation of victim impact evidence in a
capital trial, by ruling that all of these errors
were nevertheless “harmless,” or reversing the
death sentence of a defendant who has committed a heinous and undoubtedly “death-eligible” crime, by sending his case back for a
second capital sentencing. This Court emphasizes, as we have in the past, that although a
defendant’s crime may make him eligible to
receive the death penalty, a jury is never obligated to sentence a defendant to death,137 and
that a single juror has the power to prevent a
death sentence in a given case.138
¶74 We conclude that while Malone might
have had only a slim chance of avoiding a
death sentence in his original trial, the religious
and duty-based plea of the victim’s wife that
Malone be shown “no mercy” squelched whatever slim chance he had.139 The numerous other
errors committed in connection with the victim
impact evidence in this case — including the
failure to hold the required hearing on this evidence, the failure to use the required instruction, the presentation of inadmissible hearsay
through cards from the victim, and being both
too extensive and too focused upon the emotional impact of Green’s death — further
strengthen this Court’s determination that we
cannot make a “harmless beyond a reasonable
doubt” finding in the current case.140 This Court
notes that the prosecutor’s final, second-stage
closing argument — referring back to the family member requests for the death penalty, urging jurors to feel sympathy for these victims,
who were counting on the jury to give the
death penalty, and arguing that anything less
than a death sentence would be “a travesty”
— further enhanced the potential prejudice
from Mrs. Green’s impassioned plea and the
other improper victim impact evidence in this
case.141
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¶75 We take no joy in reversing the death
sentence in this case, but find that it is our duty
to do so. It is the province of the jury, not this
Court, to determine whether a death-eligible
defendant should actually be sentenced to
death; and we conclude that a new jury, which
has been properly instructed and before which
the State’s victim impact evidence has been
properly circumscribed, should make that
determination in the current case.142
¶76 Even though we have determined that
we must reverse Malone’s death sentence, we
address his other propositions — both because
some of these other claims further support our
decision that his death sentence must be
reversed and to resolve these issues in aid of
his resentencing. In Proposition IV, Malone
maintains that the “avoid arrest” and “peace
officer victim” aggravating circumstances are
“duplicative,” thereby unconstitutionally
skewing the capital sentencing process in his
trial.143 Malone acknowledges that the Tenth
Circuit Court of Appeals case upon which he
relies, i.e., United States v. McCullah,144 has subsequently been “clarified,” such that the accepted test for impermissibly duplicative aggravating circumstances “is not whether certain evidence is relevant to both aggravators, but
rather, whether one aggravating circumstance
‘necessarily subsumes’ the other.”145
¶77 This Court has taken a similar approach
to claims of impermissible “double counting,”
by evaluating not whether the separate aggravating circumstances can be established by
reliance upon the same evidence, but rather
whether the separate aggravating circumstances focus upon different aspects of the defendant’s crime or character.146 This Court recognizes that the same evidence was relied upon
to support the “avoid arrest” and “peace officer victim” aggravating circumstances in Malone’s case. Yet these two aggravators focus upon
different aspects of the crime at issue. The avoid
arrest aggravator focuses upon the reason why
the victim was killed, based upon the idea that
it is particularly wrongful to kill another person in an attempt to avoid being arrested or
prosecuted for some other crime; while the
“peace officer victim” aggravator focuses upon
who was killed, based upon the idea that it is
particularly wrongful to kill an on-duty law
enforcement officer. While these aggravating
circumstances will often be supported by the
same or overlapping evidence, they are based
upon different aspects of a defendant’s crime.
Thus they are not unconstitutionally duplicative and do not skew the capital weighing process. This claim is rejected accordingly.
2288
¶78 In Proposition V, Malone challenges the
admission of testimony from two law enforcement officers about whether he is a “security
risk,” claiming that this testimony was (1)
improper expert opinion testimony, (2) irrelevant to his trial, and (3) unduly prejudicial to
the jury’s sentencing verdict.
¶79 Tim King testified that he was the Undersheriff for Cotton County and that he had been
Undersheriff for ten years. King testified that
as Undersheriff, he had the responsibility of
running the Cotton County Jail and that he was
used to dealing with inmates. King also testified that on January 5, 2004, he went to the
Stephens County Jail to pick up Malone and
bring him back to Cotton County. King was
preparing to transport Malone, by checking
him thoroughly, when King discovered that
Malone had a handcuff key in his mouth.147
King and another transporting officer had to
wrestle Malone to the ground, and King choked
Malone until he passed out and they were able
to retrieve the key. At the end of his testimony,
King testified that he evaluated people for
security risk, and when asked for his evaluation of Malone, King testified, over objection,
that he considered Malone “high risk.”
¶80 Benjamin Lehew testified that he was the
jail administrator for Comanche County, that
he had been in this position for two years, and
that for the preceding eighteen years, he had
been chief of security for the Oklahoma Department of Corrections. Lehew testified about
how he was called back to the jail on October 7,
2004, because Malone was “basically out of
control.”148 Lehew described meeting with
Malone, who was upset about the privileges
Lehew had taken away from him; and Malone
essentially threatened Lehew, saying “he wasn’t
playing any more; he didn’t care about anything, and he was going to go to OSP,” meaning the Oklahoma State Penitentiary. Lehew
testified that he told one of the sergeants at the
jail to place Malone in leg irons and handcuffs,
but that he was soon after advised that Malone
had “handed the leg irons and handcuffs
back,” after escaping from them and damaging
them to the point that they were no longer
usable.149 When asked for his evaluation of
Malone as a security risk, Lehew responded,
“He’s a very high-risk inmate.”150
¶81 In Oklahoma, lay opinion testimony
must be rationally based upon the witness’s
perception, helpful to the jury, and not based
upon “scientific, technical or other specialized
knowledge.”151 Expert opinion testimony, on
the other hand, is based on “scientific, techni-
Vol. 78 — No. 25 — 9/15/2007
cal, or other specialized knowledge” and can
be provided only by a witness who is “qualified as an expert,” in the field at issue,
“by knowledge, skill, experience, training, or
education.”152
whether Malone posed a “continuing threat”
of future violence. Malone’s complaints about
the referenced evidence relate to the weight to
be afforded this evidence, not its admissibility.
Hence this claim is rejected entirely.
¶82 This Court finds that the security risk
evaluations offered by both King and Lehew
were proper expert opinion testimony.153 These
evaluations were based not merely upon personal interaction with Malone, but on the specialized knowledge and extensive experience
that both men possess in the field of jail administration and security.154 Evaluating the potential security risk of individual inmates is a
natural and proper part of expertise in this
field. Hence the determination by both officers
that Malone was a “high” or “very high” security risk was proper expert opinion testimony.
And although being a “security risk” and being
a “continuing threat of violence” are not equivalent or co-extensive concepts, this security
risk testimony was certainly helpful and relevant to the jury’s determination on the continuing threat aggravator.155 This Court further
finds that the challenged testimony was not
unfairly prejudicial and that it was properly
admitted during the second stage of Malone’s
trial.
¶85 In Proposition VIII, Malone challenges
the admission into evidence of a framed portrait of Nik Green, dressed in his highway
patrol uniform. This picture was admitted during the second stage, under the authority of 12
O.S.Supp.2003, §2403, which provides that an
“appropriate photograph of the victim while
still alive shall be admissible evidence . . . to
show the general appearance and condition of
the victim while alive.”159 Malone maintains
that such evidence is patently irrelevant and
unfairly prejudicial and that Oklahoma’s
revised statute allowing it is unconstitutional.
Malone acknowledges that this Court has
recently rejected the challenge he raises.160 We
decline to revisit this issue here.
¶83 In Proposition VI, Malone asserts that
Oklahoma’s “continuing threat” aggravating
circumstance is unconstitutionally vague and
overbroad, both on its face and as applied by
this Court, because it does not sufficiently narrow the class of persons eligible for the death
penalty from among all persons convicted of
first-degree murder. This Court has previously
and repeatedly rejected these challenges to this
aggravator.156 We decline to revisit the issue
here.157
¶84 In Proposition VII, Malone challenges
numerous items of evidence and areas of testimony admitted during the second stage of his
trial to support the continuing threat aggravator. Malone failed to object to any of this evidence at trial; hence we review only for plain
error.158 We find no plain error. As defense
counsel acknowledged at trial, the State’s second-stage case presented a picture of Malone
as a man whose life was spiraling out of control
due to his increasing drug abuse, loss of lawful
employment, involvement in methamphetamine production and related criminal activity,
and his determination not to be apprehended
for his crimes, resorting to violence as needed.
All of this evidence, along with his actions
while incarcerated after the murder, was certainly relevant to the jury’s determination of
Vol. 78 — No. 25 — 9/15/2007
¶86 In Payne v. Tennessee,161 the United States
Supreme Court ruled that it was not necessarily unconstitutional, in the context of the second stage of a capital trial, to allow the State to
put on victim impact evidence to provide the
jury a “quick glimpse” of the life of the victim,
in order to balance out the vast array of mitigating evidence that the defendant is constitutionally entitled to present.162 This Court notes
that a capital defendant is allowed to appear
before the jury in “cleaned up” fashion — calm,
well-groomed, and dressed in appropriate
courtroom attire — usually looking quite different than he or she did at the time of the
crime.163 We find that in capital cases, in particular, it is constitutional to allow the sentencing jury an actual “quick glimpse” of the person who later became the victim in the case —
before he or she was reduced to the corpse
shown in crime scene photographs — through
the admission of an “appropriate photograph
of the victim while still alive.”
¶87 In Proposition IX, Malone challenges
Oklahoma’s uniform jury instruction defining
“mitigating circumstances,” which was included in the second-stage jury instructions used at
his trial.164 Malone asserts that this instruction
unconstitutionally limits consideration of evidence that may support a sentence less than
death, by excluding consideration of evidence
about such things as the defendant’s previous
law-abiding lifestyle, loving family, and heroic
deeds.165 This Court finds that Oklahoma’s uniform instruction defining “mitigating circumstances” is broad and open-ended. It specifically notes that “the determination of what
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circumstances are mitigating” is up to the jury
“to resolve under the facts and circumstances
of this case” and that individual jurors do not
have to agree upon this determination.166
We have previously rejected comparable challenges to the constitutionality of this aggravator.167 We see no reason to depart from these
authorities.
¶88 In Proposition X, Malone alleges that he
received ineffective assistance of counsel in
both stages of his trial. In order to establish
such a claim, Malone must demonstrate that
the performance of his counsel was deficient
and unreasonable and that he was prejudiced
thereby.168 We take up his challenges to the two
stages of his trial separately.
A. First-Stage Ineffective Assistance
¶89 Regarding the first stage, Malone asserts
that his counsel was ineffective for (1) failing to
object to improper cross examination by the
prosecutor; (2) introducing otherwise inadmissible evidence of prior bad acts during Malone’s direct testimony; (3) failing to have Dr.
Smith actually meet with Malone until midway
through the first stage; and (4) failing to object
to the voluntary intoxication jury instructions.
In order to establish prejudice in these firststage claims, Malone must demonstrate that
there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of
the proceeding would have been different.”169
¶90 Malone’s allegation regarding improper
cross examination is resolved within Proposition II. Since the cross examinations were
largely unobjectionable, defense counsel’s failure to object was not deficient performance,
nor was Malone prejudiced thereby. Regarding
Malone’s complaint that his counsel opened
the door to otherwise inadmissible testimony
(in the first stage) about a domestic incident
with his wife and a fight he got into at a party,
the record suggests that this strategy may have
been reasonable, and we are convinced that
Malone was not prejudiced thereby.170 There is
not a reasonable probability that had this evidence been omitted, Malone’s jury would have
failed to convict him of first-degree murder.
The evidence of his guilt was simply overwhelming.
¶91 Malone characterizes his second claim as
a “lack of preparation” allegation; yet the only
tenable example of ineffective assistance in this
regard is defense counsel’s failure to meet with
Malone’s expert witness, Dr. Smith, until midway through the first stage of his trial.171 This
Court does not hesitate to conclude that it is
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unreasonable and deficient performance for
attorneys who are defending a case in which
the only plausible defense to first-degree murder involves drug use that impaired the defendant’s mental processes — where the fact that
the defendant killed the victim is established
by overwhelming evidence — to fail to arrange
a meeting between the defendant and his chosen expert until the defendant’s murder trial is
well underway. This certainly does not exemplify diligent trial preparation; and the resulting mid-trial switch of defense theory made
the State’s task of discrediting Malone’s expert
witness that much easier.172
¶92 Once again, however, Malone cannot
show prejudice, since he cannot demonstrate a
reasonable probability that his jury would
have rejected the murder charge against him if
he had met with Smith earlier. Malone argues
that if his attorneys “had not waited until the
middle of trial to have their client evaluated by
their expert, the true facts of Appellant’s memory of events would have come out much
sooner.”173 Yet the “true facts” of Malone’s
memory did come out at trial — just as Malone’s memory of what occurred came out the
day of the murder, when he accurately described
to his friends what happened and what he did.
In the current case, it would not have mattered
how defense counsel attempted to “contextualize” Malone’s mental state. The State’s evidence that Malone willfully, knowingly, and
deliberately shot Trooper Green, with the intent
to kill him, was simply too compelling. Hence
even though counsel’s failure to arrange a
timely (pre-trial) meeting between Malone and
his intended expert made impeachment of this
witness that much easier for the State, the
result of the first stage of Malone’s trial was not
affected thereby. Malone would still have been
convicted of the first-degree murder of Green.
¶93 Regarding the voluntary intoxication
jury instructions, this Court has thoroughly
addressed this issue in Proposition I; and the
failure of defense counsel to ensure that Malone’s jury was accurately and comprehensibly
instructed on his theory of defense, i.e., druginduced intoxication, does suggest deficient
and unreasonable performance in this regard.
Nevertheless, just as we concluded in Proposition I that the instructional errors in this regard
were harmless beyond a reasonable doubt, we
likewise conclude that Malone could not have
been prejudiced thereby.
Vol. 78 — No. 25 — 9/15/2007
B. Second-Stage Ineffective Assistance
¶94 Regarding the second stage of his trial,
Malone initially argues that his counsel was
ineffective in relation to three claims developed
elsewhere in his brief, i.e., failing to object to
improper victim impact evidence (Proposition
III), a live photograph of the victim (Proposition VIII), and the State’s improper secondstage closing argument (Proposition XI). This
Court fully addressed Malone’s victim impact
challenges in Proposition III. Based upon this
analysis, we further conclude that defense
counsel’s performance in regard to the victim
impact evidence presented in this case was
both deficient and unreasonable and that Malone was prejudiced thereby. Just as we could not
confidently conclude that the presentation of
this improper victim impact evidence, particularly Mrs. Green’s sentencing plea, was harmless, we find that the inclusion of this evidence
does undermine our confidence in the death
penalty verdict in this case. Regarding the live
photograph, our rejection of Malone’s Proposition VIII claim compels our rejection of this
derivative claim. And regarding the State’s
final closing argument, we will address
Malone’s ineffective assistance claim after
addressing this argument in Proposition XI.
¶95 Malone also raises three independent
second-stage ineffective assistance claims: (1)
failure to “marshal the evidence” with a strong
closing argument; (2) failure to utilize available
expert testimony to counter the State’s “continuing threat” evidence; and (3) failure to
adequately investigate and present available
mitigating evidence. On July 10, 2006, Malone
filed an Application for Evidentiary Hearing
on Sixth Amendment Claims, seeking an evidentiary hearing and the opportunity to supplement the record with new evidence in support of his second and third claims herein. We
have reviewed this Application and the attached
affidavits.
¶96 Malone challenges numerous aspects of
defense counsel’s second-stage closing argument and suggests various ways it could have
been better. He notes that defense counsel
began by conceding the aggravators.174 In fact,
defense counsel also began his opening statement in this stage of the trial by conceding the
applicability of at least some of the aggravators.175 This Court finds counsel’s strategic decision not to contest the “avoid arrest” and
“peace officer victim” aggravating circumstances entirely reasonable.176
Vol. 78 — No. 25 — 9/15/2007
¶97 Whether defense counsel ever really
“concedes” the continuing threat aggravator is
unclear, since his closing argument reference to
it seems more to indicate that this aggravator
does not really “matter in the greater scheme of
things.”177 It is clear, however, that defense
counsel never argues that this aggravator does
not apply. Malone suggests a number of ways
that defense counsel could have contested this
aggravator and challenged the evidence presented by the State in support of it. This Court
does not think such arguments would have
been helpful, in light of the vast amount of evidence presented by the State to support this
aggravator.178 We do agree, however, that
defense counsel’s second-stage remarks to
Malone’s jury were brief, tepid, reserved, and
virtually resigned.179 The most emotional part
of defense counsel’s closing remarks was when
he recounted Malone’s “downward spiral into
the abyss,” after he got addicted to methamphetamine in 2002 — a disturbing story that
the State had already effectively conveyed to
the jury.180 And although counsel concluded by
attempting to reassure the jury that Malone
would never be out of prison, he failed to provide the jury with any significant reason to
spare Malone’s life and failed even to directly
ask the jury to do so.181
¶98 We do not question the reasonableness of
defense counsel’s overall second-stage strategy
of attempting to get the jury to look beyond
Trooper Green’s murder and the other “bad
acts” committed by Malone in the time period
surrounding the murder, to consider the potential value of Malone’s life as a whole, and in
particular, his life before methamphetamine.
This strategy was evident in his opening statement, his closing argument, and in his questioning of the two witnesses he presented. And
it was a very reasonable strategy. The problem,
as outlined further below, is that the mitigating
evidence discovered and presented by defense
counsel at trial about Malone’s life “premeth” was very limited and not particularly
noteworthy or compelling.
¶99 Before moving to consider Malone’s
claim that his counsel did not adequately discover and present available mitigating evidence, we briefly address his claim that his
counsel failed to utilize available expert testimony to counter the State’s “continuing threat”
evidence. Malone maintains that his counsel
should have presented statistical evidence to
counter the State’s evidence about his future
dangerousness. Support for this claim is contained within Claim Two of Malone’s Applica-
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tion for Evidentiary Hearing (“Application”) and
the Exhibit X documents attached thereto.182
¶100 Malone suggests that his counsel should
have sought out and presented a “risk assessment” regarding his future dangerousness,
comparable to Exhibit X-2, which was prepared
by Psychologist J. Randall Price.183 Malone
presents an extensive argument in his Application about the value and reliability of such an
assessment, which is based upon a clinical
interview, various psychological tests, and an
actuarial methodology. We need not decide
whether defense counsel’s performance was
deficient for failing to pursue and present such
an assessment. In the context of Malone’s case,
where the State presented substantial and
frightening evidence about Malone’s behavior
while incarcerated — indicating a determination to escape through whatever means necessary — this Court is convinced that the jury
would not have been swayed or moved by the
statistical analysis of Price’s report. Hence we
conclude that Malone cannot show prejudice
and has failed to establish that he should be
granted an evidentiary hearing in this regard.184
Consequently, we reject this claim and here
DENY CLAIM TWO OF MALONE’S APPLICATION FOR AN EVIDENTIARY HEARING.
¶101 Malone’s final claim of second-stage
ineffective assistance is that defense counsel
failed to adequately investigate and present
available mitigating evidence. Support for this
claim is contained within Claim One of Malone’s Application for Evidentiary Hearing and
Exhibits A through W and Y, attached thereto.
This application is governed by Rule
3.11(B)(3)(b) of this Court’s Rules, which deals
specifically with evidentiary hearing requests
based upon a claim of ineffective assistance for
failure to adequately investigate and develop
evidence.185 Under this Rule, Malone is entitled
to an evidentiary hearing only if his application and attached affidavits “contain sufficient
information to show this Court by clear and
convincing evidence there is a strong possibility trial counsel was ineffective for failing
to utilize or identify the complained-of
evidence.”186
¶102 Both the Supreme Court and this Court
have recognized the importance and potential
impact of mitigating evidence in the sentencing stage of a capital trial.187 Evidence about a
capital defendant’s background and life prior
to his crime can affect the jury’s determination
of whether the aggravating circumstances outweigh the mitigating circumstances in the case,
as well as its decision about whether to impose
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the death penalty on a defendant who is
“death-eligible.”188 Hence both the Supreme
Court and this Court have reversed capital
sentences based upon trial counsel’s failure to
develop and present available mitigating
evidence.189
¶103 The crucial importance of mitigating
evidence during the second stage of a capital
trial imposes upon capital defense counsel a
corresponding duty to investigate a defendant’s background and develop potential mitigating evidence.190 While this obligation is not
unlimited, and an attorney is entitled to make
reasonable strategic decisions about which
leads to investigate and how far to pursue
them, strategic decisions made after an incomplete investigation are evaluated according to
the reasonableness of the attorney’s decision to
limit the investigation, under all the circumstances of the case.191 Although defense counsel
is entitled to make strategic decisions about
what mitigating evidence to focus upon, decisions made without adequate investigation of
potential mitigating evidence cannot be justified by merely invoking the mantra of
“strategy.”192
¶104 The affidavits attached to Malone’s
Application suggest that his trial attorneys
chose to present a very limited mitigation case
— just Malone’s one sister (Tammy Sturdevant)
and his wife (Colleen Malone) — without fully
investigating what other mitigation evidence
and witnesses were available.193 And according
to the affidavit of Sturdevant, she barely met
with Malone’s counsel and was not given adequate time to consider or prepare for her second-stage testimony.194 Similarly, an affidavit
from Malone’s maternal aunt states that she
talked to an investigator for his attorneys the
summer after the crime and that she made a list
for him of people who knew Malone. She told
the investigator that she did not know the
names of the men Malone worked with at the
fire department, but that the fire captain could
provide those names.195 Yet of the nine coworker affidavits attached to Malone’s Application, eight state that the affiant was not contacted by defense counsel and that the affiant
would have testified for Malone if asked to do
so.196 And retired firefighter Dewayne Kaspereit indicates that he actually called Malone’s
trial attorney to offer to testify, but that the
attorney never returned his call.197 Malone’s exwife, Beth Malone, also states that she was
never contacted, but that she would have testified if asked to do so.198 And ten other affidavits
attached to Malone’s Application, from friends
and family members, including his two other
Vol. 78 — No. 25 — 9/15/2007
sisters, also state that these affiants would have
testified if they had been asked to do so.199 In
fact Malone’s other sisters, who are twins and
who were mentioned at his trial, apparently
attended the entire trial, just in case they were
needed, but defense counsel never spoke to
them.200
¶105 The affidavits attached to Malone’s
Application strongly suggest that his attorneys
unreasonably limited their investigation into
the potential mitigating evidence in his case
and that they did not conduct a thorough,
thoughtful mitigation investigation.201 This
Court finds the failure of Malone’s attorneys to
find and offer testimony from any of his former
co-workers particularly troubling, since defense
counsel knew Malone had a substantial work
history as a paramedic and a firefighter — both
of which are demanding fields that are devoted
to serving other people. In light of the many
potential witnesses brought forward through
Malone’s Application, it seems likely that a
reasonable effort would have resulted in finding at least a few co-workers who would have
testified on Malone’s behalf. The testimony of
such witnesses seems a rather obvious and
necessary supplement to the testimony of
Malone’s sister and wife — since both of these
witnesses were related to him, and both were
known to have already lied on his behalf in
connection with his case.202 As we recently
noted in Marquez-Burrola v. State, there is a
“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.”203
While jurors may question the objectivity of
testimony from a defendant’s sister and wife
(particularly this sister and this wife), “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.”204
¶106 The affidavits offered by Malone suggest that there exists a significant amount of
powerful, varied, unbiased, and potentially
result-altering mitigating evidence that could
have been discovered and presented at his
trial. Former co-workers of Malone describe
him as follows. “He was very caring to the
patients,” particularly “elderly patients,” who
“loved Rick.”205 “Rick was a caring person and
a dedicated person — always,” and he treated
all his patients “with the utmost respect.”206
“Rick had one of the best bedside manners I
have ever seen” and “always treated the people
real nice.”207 He was “a skilled paramedic,”
Vol. 78 — No. 25 — 9/15/2007
who did “[w]hatever needed to be done or was
asked of him.”208 He was “a good guy,” and
what happened was “way out of character”;
“[e]veryone at the fire department said if anything happened to you, we sure wish Rick
would be the one to answer the emergency call
and . . . be the one to work on you.”209 “[Y]ou
couldn’t ask for a nicer person”; Rick “treated
everybody well,” “worked all the time . . .
[and] was burning the candle at both ends.”210
He was “a good guy,” who “knew what he was
doing” and “worked all the time to take care of
his kids.”211 Malone was “a good man” and “a
faithful husband.”212 One nurse, who worked
in the emergency room and knew Malone from
his work in the ambulance service, described
him as “the young, strong and energetic one in
the group,” who “never hesitated to make
himself available if needed.”213
¶107 Most of Malone’s former co-workers
also refer to a very public affair that his exwife, Beth Malone, had with an assistant fire
chief at the fire department. Kaspereit’s affidavit describes Malone as “a good, honest,
dependable, gullible kid,” until the time when
“one of the shift supervisors was having an
affair with Rick’s wife while on-duty and
throwing it in his face.” Kaspereit states, “Rick
went to the Fire Chief about it, and he told Rick
to leave it alone. It was thrown in his face every
day.” Kaspereit traces Malone’s decline to the
experience of this humiliating affair, after
which Malone “went downhill,” “slipping into
depression,” and also “taking meth.”214 Various
co-workers likewise note how humiliating the
affair was for Malone and how much it affected
him.215 Other affidavits echo the testimony presented at trial about how the subsequent death
of his mother impacted his decline into
depression and drug use.216 Many co-workers
express regret about not recognizing signs of
methamphetamine use in Malone.217
¶108 Perhaps the most surprising affidavit
offered by Malone with his Application is that
of his ex-wife, Beth Malone. Despite the negative information about their marriage that
came out at trial, Beth offers a substantial and
very positive portrayal of her ex-husband,
whom she “never stopped loving.”218 She
describes their early relationship and how they
married in May of 1992.219 Malone then adopted
her three children: eight-year-old Randy, fiveyear-old Amanda, and the youngest, who was
two, and who they renamed Ricky Bradford
Malone, after his new father. She states that
Malone started going to EMT school to be a
paramedic and encouraged her to do the same.
Malone then encouraged her to go to college
2293
and get her R.N., which she did.220 Beth describes
how they would alternate 24-hour shifts, “so
that one of us could always be home with the
children,” and how Malone helped the kids
with their homework.221 Malone’s role as a
father to these children was never even
mentioned at his trial.222
¶109 Beth Malone admits that she got
involved with a firefighter who worked with
Malone and that she started seeing him publicly while she was still married to Malone.
Beth addresses the “domestic incident” and
states that it arose from an argument about
Malone’s jealousy regarding this other firefighter. While Beth’s depiction of what happened at their home that day may be somewhat
dubious, her statements certainly place the
incident in a different light.223 Beth also acknowledges the pain and humiliation her affair
caused Malone.224 This affair and its impact on
Malone were never mentioned at his trial. Beth
also describes Malone’s descent into drug use,
starting with steroids, then Lortabs after a football injury, and later methamphetamine, which
was consistent with Malone’s trial testimony.225
¶110 Beth Malone was also a former coworker of Malone’s, since they both worked as
paramedics for the same ambulance service. In
this regard, Beth attests to an incident involving an elderly woman who was choking. When
Malone heard on the radio that Beth and her
partner were having trouble helping the
woman, he came to the scene to help, administered the Heimlich maneuver, dislodged the
meat in the woman’s throat, “and saved her
life.”226 Other witnesses offer similar testimony
about Malone helping people and even saving
lives.227 Cathy Lehew states that she “would
have liked to ask the jury to take into consideration all the lives Rick saved and the sacrifices
he made being called out in the middle of the
night and taking care of people at some of the
worst points in their lives.”228 Reese Marshall
adds, “I know that Rick took a life while under
the influence of a horrible mind-altering drug,
but in his short lifetime, Rick [also] saved and
cared for many lives.”229
¶111 This Court has focused mostly upon the
affidavits of Malone’s former co-workers, since
these persons may well have had the most
potential as mitigation witnesses in the current
case. A number of affidavits note the prominence of partying and drug use within Malone’s family and that his family was not necessarily a very good influence on his life.230 Nevertheless, Malone’s twin sisters and other relatives could have provided valuable informa2294
tion about his early life and positive character
traits.231 They also could have provided specific
examples of how using methamphetamine
changed his personality entirely.232
¶112 Claims of ineffective assistance for failure to adequately investigate and present mitigating evidence are treated in essentially the
same manner as other ineffective assistance
claims, requiring a showing of both deficient
attorney performance and prejudice.233 The
main difference is in the prejudice analysis,
where the reviewing court must determine
whether there is a “reasonable probability”
that if trial counsel had presented the omitted
mitigating evidence, the sentencer “would
have concluded that the balance of aggravating
and mitigating circumstances did not warrant
death.”234 In making this determination, the
newly proffered mitigating evidence must be
considered along with the mitigating evidence
that was presented and then weighed against
the aggravating evidence that was presented.235
Finally, we also consider whether there is a
reasonable probability that inclusion of the
omitted mitigating evidence could have
“alter[ed] the jury’s selection of penalty, even
if it does not undermine or rebut the
prosecution’s death-eligibility case.”236
¶113 This Court finds that Malone has presented a significant amount of evidence strongly suggesting that the investigation of his trial
counsel into potential mitigating evidence was
unreasonable and deficient. We recognize,
however, that the current state of the record
does not contain any direct evidence from
Malone’s trial attorneys about what they did,
how much they did, why they made the choices they did, etc. An evidentiary hearing would
allow a more direct investigation of this question — though it appears unnecessary in the
current case, for the reasons discussed below.
This Court further finds that Malone has presented a vast amount of potentially mitigating
evidence from a wide range of sources and that
such evidence could have been very helpful in
“humanizing” Malone.237
¶114 The State did a thorough job at trial of
depicting Malone as a monster; and the facts of
this crime, as well as other actions by Malone
in the time period surrounding this murder,
provided ample material to work with in this
regard. Nevertheless, Malone apparently did
have a life that was noteworthy, honorable,
and admirable prior to his descent into drugs
and crime.238 While his trial counsel attempted
to argue this theory at trial, he did not discover
or present to Malone’s jury the facts to back it
Vol. 78 — No. 25 — 9/15/2007
up.239 The affidavits attached to Malone’s Application suggest that there is much material that
could and should have been presented to the
jury that was deciding Malone’s fate. Looked
at in toto, this Court finds there is a reasonable
probability that such evidence could have had
an impact on the ultimate sentencing determination in this case, by giving the jury — or at
least one juror — a reason to spare Malone’s
life.240 Hence the failure of Malone’s counsel to
develop and present this kind of mitigating
evidence undermines this Court’s confidence
in the jury’s sentencing verdict in this case.
¶115 This Court concludes that Malone’s
Application for Evidentiary Hearing and the
attached affidavits do contain sufficient information to show, by clear and convincing evidence, that there is a strong possibility Malone’s trial counsel was ineffective for failing to
identify or utilize the proffered evidence.241
Hence Malone has demonstrated that he is
entitled to an evidentiary hearing on Claim One of
his Application. In the current case, however, this
Court need not grant such an evidentiary hearing, and this claim is rendered moot, since we can
and do choose instead to grant Malone sentencing relief on the claims raised in Proposition III, as well as the other errors discussed
herein. We further find that Malone has established that his counsel was constitutionally
ineffective due to his failures in connection
with the victim impact evidence presented in
his case, and that Malone has made a strong
case that his counsel was constitutionally ineffective in regard to the second stage of his trial
as a whole, for failing to argue vigorously that
Malone’s life should be spared and, more
importantly, for failing to discover and present
to his jury available and emotionally significant evidence that Malone’s life was worth
sparing — because of the kind of person he
once was, if for no other reason.
¶116 In Proposition XI, Malone argues that
the cumulative effect of the prejudicial errors
committed in the second stage of his trial, combined with improper prosecutorial argument
in the State’s final closing remarks, together
produced a situation where the jury’s decision
to sentence him to death was influenced by
passion, prejudice, and other arbitrary factors.242 Malone notes that during voir dire the
prosecutor asked prospective jurors, over and
over again, to remember that this case was not
just about Malone, it was about Trooper Green
and those he left behind. The prosecutor concluded his initial second-stage closing argument, just before defense counsel got up to
Vol. 78 — No. 25 — 9/15/2007
present his final remarks, by referring back to
this voir dire.243
¶117 If there was any uncertainty that the
prosecutor was referring to Trooper Green’s
family and also Green himself, it was erased by
his final second-stage closing argument. The
prosecutor addressed the jurors directly about
how each of them would be “marked by this
case in some way or the other,” but also noted,
“You’ll walk out of here probably later today
and you’ll go on with your lives.” He contrasted this ability of jurors to walk away and move
on with the plight of others, who “will not
have that option.” He continued as follows:
I pray that you’re never involved in a
case from the standpoint of losing a family
member or being a victim. You can’t imagine what it’s like to go through. You can’t
take the law into your own hands as much
as [you] may want. You cannot take the law
into your own hands. Everything that’s
been done in this case has been done for
you. The victims — they have to rely on the
investigators. They got to hope investigators they’ve never met, don’t know anything about — they’ve got to hope those
investigators can get enough information,
enough evidence to satisfy twelve people
so that some day justice can be done.
They’ve got to let their loved ones go to
Oklahoma City where a doctor opens them
up, checks organs so that that doctor someday can testify to a panel of twelve people
that they’re certain that the cause of death
is a gunshot to the back of the head.
You can’t hire your own attorney to
prosecute these cases. You got to rely on a
prosecutor that you’ve never met before.
You hope they’ve got the time and the fortitude to try the case like it ought to be.
But you know the hardest part if you’re
the victim? The hardest part is right now.
Twelve people that didn’t know Nikky,
twelve people that don’t know anything
about them other than seeing them on the
stand for 15, 20 minutes — is going to
decide — make a decision on the person
that took Nikky Green’s life. Each of those
people — and it was difficult. Difficult to
take that stand and say the things they had
to say. But something that’s very important: The law says that we have the right to
consider the wishes of the family. Each of
those people asked you for the death penalty, and it’s appropriate. If you’re ever
going to set on a case where the death pen-
2295
alty is warranted, you’re setting on it right
now.
When you go back there to deliberate,
there’s some strengths on this jury for the
death penalty. There’s going to be some
people, probably, that may have some reservations. Work with them, talk with them;
spend some time with them. We’ve been 15
months waiting on this verdict; if it takes
an hour, a day, a week, work with those
that may not want the ultimate punishment. This case cries out for it. Anything
less would be a travesty.
The prosecutor returned to this same theme
again as he began wrapping up his final
remarks.244
¶118 The prosecutor concluded by returning
to the theme that the case was about more than
Malone; it was about Trooper Nik Green. He
did this by directly contrasting the situation of
Malone, though incarcerated, with the plight of
his dead victim. The prosecutor ended Malone’s trial with the following comparison:
And I’d like you to think about this
when you go back there — and we heard
this from Colleen. This man has human
contact. He has known human contact
since early morning of December 22nd
[sic]. He’s got to visit with his wife. He’s
got to determine how his kids are doing.
He’s been able to determine what’s happening in the world.
Nik Green has had none of that since
shortly before 7 that morning. Nik Green
will never know human contact again. Nik
Green will never read a magazine, a paper.
He’ll never talk with his wife. He’ll never
see his kids grow up. He’ll never know
how they turn out in life.
The death penalty. This case cries out
for it. You, the strengths on this jury, bring
it back.
I thank you.
Malone’s jury was then released to begin its
deliberations. The jurors returned two hours
later, bringing with them the death penalty
verdict for which Mrs. Green and the prosecutor had so powerfully “begged” and
“prayed.”
¶119 Although Malone quotes and challenges these prosecutorial arguments, Proposition
XI is not set up as a separate, second-stage
prosecutorial misconduct claim.245 Rather,
Malone argues that this Court should consider
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the State’s “egregious misconduct during second stage closing arguments,” in conjunction
with the numerous other errors committed in
connection with the second stage of Malone’s
case, and conclude that “[t]he confluence of
these factors rendered the verdict of death arbitrary and capricious.” Hence this Court declines
to narrowly parse these remarks against the
backdrop of our extensive prosecutorial misconduct jurisprudence. Instead, we simply
conclude that the prosecutor’s remarks were
egregiously improper and unfairly prejudicial
to Malone and that they clearly invited passion, prejudice, and arbitrariness into the jury’s
sentencing determination in this case.246
¶120 It was improper for the prosecutor to so
blatantly suggest that Malone’s jurors should
sentence him to death because the family member victims were counting on them to do so. It
was improper to so directly and profusely
appeal to sympathy for the family member
victims. And it was highly improper to seek
this sympathy based not only upon the loss of
Green, but also by invoking the powerlessness,
the indignities, and the depersonalization that
the American system of trial by jury imposes
upon all crime victims and their surviving
families.247 It was likewise improper to imply
that Malone’s family members should be compensated for their fifteen-month endurance of
this painful process by a death penalty verdict
from the jury, and that “[a]nything less would
be a travesty.” And the prosecutor’s comparison of Malone’s situation (of limited but continuing “human contact”) with that of his dead
victim (who “will never know human contact
again”) is yet another version of the infamous,
but ever-popular, “three hots and a cot”
argument that this Court has so strenuously,
but unsuccessfully, sought to eliminate from
the Oklahoma prosecutorial repertoire of
favorite, death-seeking, closing argument
incantations.248
¶121 Hence the prosecutor’s improper
remarks within his second-stage closing argument further strengthen and confirm this
Court’s finding that the death penalty verdict
in this case simply cannot be allowed to
stand.249
¶122 In Proposition XIII, Malone raises an
additional cumulative error claim, this time
regarding both stages of his trial. This Court
has found first-stage error regarding only one
issue, namely, Malone’s Proposition I challenge
to the intoxication jury instructions in his case.
Hence this Court’s conclusion that the errors
discussed in Proposition I were harmless
Vol. 78 — No. 25 — 9/15/2007
beyond a reasonable doubt resolves Malone’s
first-stage cumulative error claim as well.
Regarding the second stage, this Court has
already found that Malone’s death sentence
must be reversed and that this case should be
sent back to the district court for resentencing
— thereby rendering moot this second-stage
cumulative error claim.
DECISION
¶123 For the reasons discussed in this opinion, the CONVICTION of Malone for the firstdegree murder of Trooper Nik Green is
AFFIRMED. Malone’s DEATH SENTENCE,
however, is REVERSED, and this case is
REMANDED to the District Court FOR
RESENTENCING.250 Pursuant to Rule 3.15,
Rules of the Oklahoma Court of Criminal Appeals,
Title 22, Ch. 18, App. (2006), the MANDATE is
ORDERED issued upon the delivery and filing
of this decision.
AN APPEAL FROM THE DISTRICT
COURT OF COMANCHE COUNTY
THE HONORABLE MARK R. SMITH,
DISTRICT JUDGE
APPEARANCES AT TRIAL
Don. J. Gutteridge, 3000 United Founders Blvd.,
Suite 208, Oklahoma City, Oklahoma 73112,
Attorney For Defendant,
Cheryl A. Ramsey, P.O. Box 1206, Stillwater,
Oklahoma 74076, Attorney For Defendant,
Robert Schulte, District Attorney For Comanche County, 502 Courthouse, 315 S.W. 5Th St.,
Lawton, Oklahoma 73501, Attorney For The
State,
Mark Clark, Assistant District Attorney, Cotton
County Courthouse, Walters, Oklahoma 73572,
Attorney For The State.
APPEARANCES ON APPEAL
James H. Lockard, Deputy Division Chief,
Kathleen Smith, Capital Direct Appeals Division, Oklahoma Indigent Defense System, P.O.
Box 926, Norman, Oklahoma 73070, Attorneys
For Appellant,
W.A. Drew Edmondson, Attorney General Of
Oklahoma, Seth S. Branham, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City,
Oklahoma 73105, Attorneys For Appellee.
OPINION BY: CHAPEL, J.
LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART
C. JOHNSON, V.P.J.: CONCUR
A. JOHNSON, J.: CONCUR
Vol. 78 — No. 25 — 9/15/2007
LEWIS, J.: CONCUR IN PART/DISSENT IN
PART
1. The killing of Oklahoma Highway Patrol Trooper Nikky J. Green
was committed in Cotton County. Malone was originally charged in
Cotton County District Court, Case No. CF-2004-1. Although defense
counsel sought a change of venue in August of 2004, based upon the
extensive publicity and notoriety of the case in Cotton County, this
motion was denied. Defense counsel filed a second change of venue
motion in February of 2005. At this time the parties agreed that a delay
in the completion of the defense expert witness’s report had made it
impossible to try the case during Cotton County’s spring jury term.
Because the State did not want to wait for the next Cotton County jury
term in the fall, the prosecutor agreed to confess Malone’s change of
venue motion and have the case transferred to Comanche County, to
be tried in May of 2005.
2. See 21 O.S.2001, §701.12 (5), (7) and (8), respectively.
3. Malone’s Petition in Error was timely filed on November 14,
2005. On July 10, 2006, Malone filed his Brief and an Application for an
Evidentiary Hearing on Sixth Amendment Claims. On November 13,
2006, the State filed its Brief and a Response to Defendant’s Application for Evidentiary Hearing. Malone filed a Reply Brief on December
4, 2006. Oral argument before this Court was held on April 24, 2007.
4 . Robles testified that the driver’s side door was open and there
were a lot of boxes and papers sitting around the car.
5. Thompson testified that he had known Nikky Green since they
were in the third grade together.
6. Blood evidence presented at trial established that this was the
position of Green’s body at the time he was shot.
7. The area contained substantial evidence of recent methamphetamine production, and Malone admitted at trial that he had been
“cooking meth” the previous night.
8. Malone acknowledged at trial that he was out on a $50,000 bond
at the time, on a pending charge of attempted manufacture of methamphetamine, as well as other related charges.
9. Malone’s friend, Tyson Anthony, testified that the pistol left at
the scene belonged to him, but that Malone had borrowed it the previous evening before he left to do the cook, saying he needed it “in case
he got into trouble with the police.”
10. Testimony at trial established that Dashcam recorders like
Green’s come on automatically when the overhead lights are activated
and can also be turned on manually, either in the car or with a remote
control. Trooper Green’s Dashcam was switched on via his remote
control at 6:45 a.m. that morning. The remote control had a remote
microphone on it, which recorded the sounds at the scene from 6:45
a.m. until the recorder was turned off at 7:50 a.m. While it is possible
that Green purposefully turned the recorder on, it is also possible that
it got knocked on during the struggle. The remote control was found
at the scene, not far from Green’s right hand.
11. DNA evidence presented at trial established that a bloodstain
on the inside of Green’s left front pants pocket came from Malone.
12. The Dashcam videotape appears in the record as State’s Exhibit 1. The record also contains a transcript of the audio of this videotape,
which is in the record as Court’s Exhibit 9. Although the transcript was
not entered into evidence, text from the transcript was displayed on
demonstrative exhibits used during the cross examination of Malone.
(Neither the accuracy of the transcript nor the use of these demonstrative exhibits is challenged on appeal.) We have watched and listened
to this videotape numerous times. This Court’s interpretation of what
was said differs slightly from the transcript in a few places, including
within Green’s final plea. The transcript records Green’s final words as
follows: “Please don’t. In the name of Jesus Christ. Please remember,
Lord Jesus.” The summary in the text is based upon this Court’s best
interpretation of what was said. Any differences compared to the transcript are minor and do not affect overall meaning.
13. One 9 mm projectile, consistent with Green’s own gun, was
recovered from his head, and another was recovered from the ground
beneath his head. The medical examiner testified that Green’s death
was caused by a massive head injury to the back of his head, caused by
one or more gunshot wounds, at least one of which was likely a contact
wound.
14. Malone left substantial drug evidence at the scene, including
two “eight balls” of methamphetamine, which were left laying in the
middle of the dirt road.
15. All four of these witnesses spent time in jail on material witness
warrants in this case.
16. Anthony was in jail on a material witness warrant until after his
preliminary hearing testimony, when his bond was reduced. He
acknowledged at trial that he agreed to testify in exchange for the
district attorney’s agreement not to charge him as an accessory after
2297
the fact or on any prior drug-related offenses. At the time of Malone’s
trial, Anthony was back in jail, charged with a new count of aggravated manufacture of methamphetamine.
17. At trial Anthony recounted that Malone told him the following.
Malone was asleep and woke up to a gun and a flashlight in his face.
The cop told him to get out, and Malone tried to run but tripped and
fell. The cop got on his back and got a handcuff on him, but then they
were rolling around and fighting, until Malone saw a gun on the
ground and was able to get it. The cop prayed, said he had kids, and
begged Malone not to shoot him or kill him, but Malone said, “You
would have done it to me,” and shot him twice in the back of the head.
(The audio of the videotape does not contain anything similar to the
quoted statement, though the other statements attributed to Malone by
Anthony are consistent with the videotape.)
18. Malone told Anthony that he lost the gun he had borrowed
from Anthony and that he thought he dropped it at the scene of the
shooting.
19. The murder weapon was never found. Malone testified at trial
that Anthony got rid of it.
20. During cross examination Anthony testified that at the time of
the shooting, he, Sturdevant, the Rossers, and Malone were all “heavy
into the use of methamphetamine” and that they were high “constantly,” from December 20 until December 26, 2003.
21. J.C. Rosser testified that he was in jail in Stephens County on
various methamphetamine-related charges when he first spoke with
officers about Malone. Rosser’s charges stemmed from a November
2003 raid on his home, which resulted in the Rossers moving in with
Sturdevant. Rosser agreed to testify in Malone’s case in exchange for
having these prior charges dropped and not being charged as an accessory after the fact in Green’s murder. Rosser was released on bond after
his preliminary hearing testimony in Malone’s case.
22. With J.C. Rosser’s assistance, the white garbage bag was later
recovered. Its contents, i.e., Malone’s clothing from the morning of the
shooting, were entered into evidence at trial.
23. J.C. Rosser described Malone’s account of what had happened
as follows. Malone had been sleeping and was awakened by the officer
with a gun and a flashlight. The officer had Malone on the ground,
with a knee in his back, when Malone said, “Fuck this,” and started
fighting and struggling. According to Malone, the officer was hitting
him on the head with his baton, and Malone said, “I like it; give me
some more.” The officer begged for his life, but Malone said, “You
would have did it if you were in my shoes. You’d have did the same.”
Malone then “shot him once and then he shot him again just to make
sure,” i.e., to “make sure he was dead.”
24. Rosser testified that in late December of 2003, he, his wife,
Anthony, Sturdevant, and Malone were high on methamphetamine
together “almost all the time.”
25. Jaime Rosser testified that she (like her husband) was in Stephens County Jail (on drug charges stemming from the November raid
on their home) when she was first approached about Green’s murder,
in late December of 2003. Although her husband negotiated the agreement, she got basically the same deal. She was released and her drug
charges were dropped after she testified at Malone’s preliminary hearing. She acknowledged on cross examination that she could have gotten as much as a life sentence on the attempted manufacturing charge
she faced in the other case and that she was guilty of that charge.
26. Jaime Rosser testified that Malone said he fell asleep during the
cook, and the officer came up and tapped him on the shoulder. They
rumbled around and fought, and the officer got one handcuff on him.
She remembered that Malone said that the officer had begged for his
life and that Malone responded, “If you were in my shoes, you would
do the same thing.” Rosser did not remember Malone talking about the
officer praying or referring to his family.
27. She described waiting in the garage while Malone left to get a
handcuff key and then came back and took off the handcuff. Rosser
testified to being upset by the sight of the gun, which she described as
“nasty,” because it “was gooey and it had blood and hair on it.”
28. A clip from Green’s Dashcam video, showing Malone in front
of Green’s car, was shown on local television stations that same night.
Officer Keith Stewart, a Duncan police officer who was familiar with
Malone, recognized Malone in the video and immediately reported
this information.
29. Sturdevant acknowledged at trial that she had lied in all of her
initial contacts with law enforcement officers, in an attempt to help her
brother. She also admitted that although she had agreed to testify
truthfully at Malone’s preliminary hearing, she had not done so,
because she was still trying to help her brother. Consequently, she
remained in jail from the time of Malone’s June 2004 preliminary hearing until the time of his May 2005 trial. Sturdevant also testified that
she was telling the “absolute truth” at trial and that she expected to be
released after the trial ended.
2298
30. Sturdevant described Malone’s account of what happened as
follows. Malone woke up to a flashlight in his eyes, and an officer
made him get out of the car. Malone was on his stomach, with one arm
behind his back, and the officer got one cuff on him, but somehow
Malone got up. Malone tried to run, but tripped, and was hit on the
head a few times, and he and the officer got into a “scuffle” and went
into some barbed wire. Malone saw a gun on the ground and picked it
up. The officer begged for his life, saying “Jesus Christ, no.” Malone
also recounted that he said to the officer, “If I wouldn’t have done it to
you first, you’d have done it to me.”
31. Sturdevant also reported her car “stolen” to the Lawton Police
Department.
32. Sturdevant also acknowledged that she introduced her brother
to methamphetamine.
33. DNA evidence presented at trial established that Green’s blood
was found on the driver’s seat of the car driven by Malone, on a black
container inside the car, and on various items of Malone’s clothing
recovered on Camel Back Road.
34. When Malone was first interviewed, on December 27, he
denied any involvement and claimed he was home with his wife on
the night of the shooting. Nevertheless, investigators noted marks on
his right wrist consistent with a handcuff and that Malone seemed
very stiff, as if he was sore.
35. Malone described how methamphetamine made him moody
and paranoid and that he sometimes heard voices and thought he saw
things that weren’t there — like when he would “hear” people in his
attic and when he “saw Bigfoot” while he was out cooking at the
lake.
36. Malone acknowledged on cross examination that he was
stopped on December 15, 2003, and given a verbal warning for having
loaded and concealed weapons in his car. He was stopped again on
December 22, 2003, and this time he was charged with attempted
manufacturing, possession of precursor ephedrine, and possession of
three loaded and accessible firearms.
37. Malone testified that he was “fighting for his life” and that he
kept “trying to get away from this dude.” Malone claimed that he
didn’t know the person he was fighting was law enforcement until he
saw the highway patrol sticker on the man’s open car door, after Green
was already dead. Malone also testified that it was “too dark” to see
that the other man was in uniform and had a badge and that he would
have submitted if he’d realized that Green was a highway patrol
trooper.
38. Malone testified on cross examination that he did not notice the
handcuff on his wrist until he was back in his car. He couldn’t explain
what “keys” he kept asking for on the Dashcam video.
39. Dr. Smith testified that users sometimes refer to this hallucinatory effect as “tweaking.”
40. Dr. Smith testified that Malone told him that in late December
of 2003, he was hardly sleeping and “was using 4 to 5 grams of methamphetamine, smoking it, and using 20 to 40 Lortab.”
41. Dr. Smith testified, “He thinks he’s being attacked by all these
people, and then this unfortunate altercation occurs.” Dr. Smith also
recounted Malone’s perception “[t]hat he was under attack and that
the dead body was coming after him.”
42. The State’s impeachment of both Malone and Dr. Smith is discussed within Proposition I.
43. 2006 OK CR 34, 142 P.3d 437.
44. Id. at ¶41, 142 P.3d at 449 (citing 12 O.S.2001, §2704). We noted
that expert testimony that merely tells a jury what result to reach
remains inadmissible and also that expert testimony is improper
regarding issues that lay jurors are qualified to evaluate based upon
the experiences of everyday life. Id. (citations omitted). The key issue
remains whether the proposed expert testimony would likely “assist
the trier of fact.” Id.
45. Id. at ¶42, 142 P.3d at 449. At Malone’s trial Dr. Smith was
allowed to give his expert opinion that due to Malone’s use of methamphetamine and Lortabs, he could not have formed a deliberate
intent to kill at the time he shot Trooper Green.
46. See id. at ¶¶43-44, 142 P.3d at 450 (“Coddington raised sufficient
evidence for the trial court to instruct the jury on his defense of voluntary intoxication. . . . We disagree with the State’s position that Coddington’s jury was ‘erroneously instructed’ on the defense of voluntary intoxication.”).
47. See id. at ¶43, 142 P.3d at 450.
48. See Jackson v. State, 1998 OK CR 39, ¶65, 964 P.2d 875, 892 (per
curiam) (“The test used should be no different from the test used on
any other defense. When sufficient, prima facia [sic] evidence is presented which meets the legal criteria for the defense of voluntary
intoxication, or any other defense, an instruction should be given.”) In
Jackson, four of the five voting judges on this Court agreed that this was
the appropriate test for evaluating whether voluntary intoxication
Vol. 78 — No. 25 — 9/15/2007
instructions should be given. See id. (two judges concurring in the
opinion) and 964 P.2d at 902 (Lane, J., dissenting, joined by Strubhar, J.)
(“I applaud and concur with the majority’s clarification of the test to be
used in determining whether an instruction on defendant’s theory of
defense should be given.”).
The State invokes Taylor v. State, 2000 OK CR 6, ¶20, 998 P.2d 1225,
1230, in which this Court found that “an instruction on voluntary
intoxication was not warranted by the evidence and it was error for the
trial court to so instruct.” Although evidence of drug and alcohol use
was admitted in Taylor, the evidence presented at that trial was inadequate to establish a prima facie case that the defendant was intoxicated
at the time of the crime, to the extent that he was unable to form a
deliberate intent to kill. Id. at ¶¶18-20, 998 P.2d at 1230. We note that
the test cited in Taylor, i.e., that in order to rely upon voluntary intoxication as a defense, “the defendant must introduce sufficient evidence to
raise a reasonable doubt as to his ability to form the requisite intent,”
id. at ¶19, 998 P.2d at 1230 (citing Crawford v. State, 1992 OK CR 62, ¶53,
840 P.2d 627, 638), which is recited just after citing Jackson, see id., is the
very test that was explicitly rejected in Jackson. See Jackson, 1998 OK CR
39, ¶¶63-65, 964 P.2d at 891-92. We find that the test cited in Taylor and
Crawford for determining whether to instruct the jury on the voluntary
intoxication defense — by evaluating whether the defendant’s evidence is sufficient to “raise a reasonable doubt” about his ability to
form the requisite intent — is an incorrect statement of the legal standard to be applied in this context. The proper legal standard to be
applied in this context is the prima facie evidence standard used in this
opinion.
49. Jackson, 1998 OK CR 39, ¶66, 964 P.2d at 892.
50. Just before closing arguments in the first stage of Malone’s trial,
the district court held a very brief conference on jury instructions. The
court indicated that it had prepared the instructions, along with a
verdict form. Counsel for both the State and Malone confirmed that
they had examined the instructions, and both the State and defense
counsel indicated that they had no objections to the proposed instructions and did not request any further instructions. The trial court also
asked Malone if his attorneys had spoken with him about the instructions. Malone confirmed that he had a general awareness of the
instructions and was satisfied with them.
51. See, e.g., Norton v. State, 2002 OK CR 10, ¶17, 43 P.3d 404, 409.
52. Malone’s Instruction No. 37 accurately tracks OUJI-CR(2d) 835, which introduces the voluntary intoxication defense, and which
has not changed since the adoption of the Second Edition to Oklahoma’s Uniform Criminal Jury Instructions in 1996. We note that Malone’s Instruction No. 37, following the language of OUJI-CR(2d) 8-35,
does not distinguish between voluntary and involuntary intoxication.
53. From the time of its adoption in 1996 until the 2005 Supplement, which took effect on July 28, 2005, OUJI-CR(2d) 8-36 has been
missing the word “as” after the initial “has,” uses the word “in” for
what should obviously be an “is” in the second sentence, and has
contained references to the potentially confusing term “special mental
element.” The 2005 Supplement added the missing “as” and deleted
the references to “special mental element,” but failed to change the
“in” to “is,” apparently because the drafters mistakenly believed it
already said “is.” (The “marked-up” version of the new 8-36, attached
to this Court’s Order Adopting the 2005 Revisions to OUJI-CR(2d), has
an “is” rather than an “in” in the second sentence). Hence the current
version of 8-36 states:
The crime of [Crime Charged in Information/Indictment] has
as an element the specific criminal intent of [Specify Specific
Mens Rea]. A person in entitled to the defense of voluntary
intoxication if that person was incapable of forming the specific
criminal intent because of his/her intoxication.
OUJI-CR(2d), Supp. 2005, 8-36.
54. See, e.g., Flores v. State, 1995 OK CR 9, ¶5, 896 P.2d 558, 560 (citing Fontenot v. State, 1994 OK CR 42, ¶55, 881 P.2d 69, 84).
55. It would aid this Court’s review if district courts would note in
the record that they are making such a correction, either by explaining
the change in a transcribed hearing or by an “as corrected” designation
on the actual paper instruction provided to the jury.
56. See, e.g., Hogan v. State, 2006 OK CR 19, ¶39, 139 P.3d 907, 923
(“It is settled law that trial courts have a duty to instruct the jury on the
salient features of the law raised by the evidence with or without a
request.”) (citations omitted), cert. denied, __ U.S. __, 127 S.Ct. 994, 166
L.Ed.2d 751 (2007).
57. In this version this Court has added the missing “as” in the first
sentence and replaced the “in” with an “is” in the second sentence; we
have also substituted the word “this” for the word “the” before the
phrase “specific criminal intent,” to more clearly inform the jury that
“malice aforethought” is one kind of “specific criminal intent.”
58. See, e.g., OUJI-CR(2d) 4-62 (defining and explaining “malice
aforethought”).
Vol. 78 — No. 25 — 9/15/2007
59. Malone’s jury was correctly instructed regarding the elements
of first-degree murder, including “malice aforethought,” which is also
correctly defined. These separate instructions, however, make no reference to the legalistic phrase “specific criminal intent,” which is used
repeatedly in the intoxication instructions. Hence even a jury that
sought diligently to apply its instructions “as a whole” could have
been left uncertain regarding the meaning of “specific criminal intent”
and what that particular intent was supposed to be in Malone’s case.
60. See OUJI-CR(2d) 8-37 (“The defense of intoxication can be
established by proof of intoxication caused by narcotics/drugs/
(hallucinogenic substances)). This instruction has not been modified
since the adoption of the second edition in 1996.
61. Malone’s Instruction No. 40 stated as follows:
It is the burden of the State to prove beyond a reasonable doubt
that the defendant formed the specific criminal intent of the
crime of murder in the first degree. If you find that the State has
failed to sustain that burden, by reason of the intoxication of
Ricky Ray Malone[,] then Ricky Ray Malone must be found not
guilty of murder in the first degree. You may find Ricky Ray
Malone guilty of murder in the second degree if the State has
proved beyond a reasonable doubt each element of the crime of
murder in the second degree.
Except for the two missing commas (noted by brackets), this instruction accurately tracks OUJI-CR(2d) Supp. 1997, 8-38, which was in
effect at the time. This instruction was modified in 2005 to delete a
potential reference to the term “special mental element” in the first
sentence, which was not used in Malone’s case anyway. See OUJICR(2d) Supp. 2005, 8-38.
62. OUJI-CR(2d) 8-39 was not modified from the time of its adoption in 1996 until 2005. Prior to the 2005 Supplement, OUJI-CR(2d) 8-39
provided four possibilities for defining the “special mental element”
term: “corruptly/knowingly/willfully/maliciously.” In 2005, the
“incapable of forming special mental element” definition was eliminated, and the definition of “intoxication” was modified as follows
(eliminating crossed out terms and adding the underlined terms) to
“[a] state in which a person is so far under the influence of an intoxicating liquor/drug/substance to such an extent that his/her (passions are
visibly excited)/(judgment is impaired). OUJI-CR(2d), Supp. 2005, 839.
63. The record contains no explanation of why the “incapable of
forming special mental element” definition was included in Malone’s
instructions, since this term was not otherwise used in the instructions;
nor does the record reveal why the “special state of mind” referenced
in that definition is “willfully.” The record reveals only that it was the
trial court who prepared the instructions and that the parties did not
object. Malone makes much of the improper inclusion of this definition
in his instructions, particularly the reference to “willfully.” This Court
finds, however, that this error was not significant. The phrase “special
mental element” was not otherwise used in Malone’s instructions; thus
a reasonable jury reading its instructions as a whole, as it was directed
to do, would have no occasion to apply this definition in Malone’s
case. Cf. Norton v. State, 2002 OK CR 10, ¶18, 43 P.3d 404, 409 (concluding that “superfluous definition” of term that “was not enumerated as
an element of the offense” was “harmless”).
64. The definition should reference intoxication that overcomes a
person’s ability to form the “specific criminal intent” at issue, which
would be best done by actually naming that intent, i.e., in this case,
either “malice aforethought” or “a deliberate intent to kill.” Of the current five uniform instructions on this defense, only one — OUJICR(2d) 8-36 — informs the jury what “specific criminal intent” is
actually at issue, by directing the trial court to “[Specify [the] Specific
Mens Rea].” Phrases like “mens rea” and “specific criminal intent,”
when not defined in plain language, are unhelpful and may be incomprehensible to lay jurors.
65. This Court recognizes that the 2005 Supplement to the voluntary intoxication instructions cleared up some of the typos and potentially confusing aspects of these instructions, in particular, the “special
mental element” references. Yet the instructions remain in need of
further improvement. (For example, although the 2005 Supplement
added the clarifying word “voluntary” to the phrase “defense of [voluntary] intoxication” in OUJI-CR(2d) 8-36, the voluntary intoxication
instructions otherwise refer simply to an “intoxication defense.” It
would be clearer to consistently refer to the “voluntary intoxication
defense,” particularly in cases that might also involve an involuntary
intoxication defense.)
66. This Court notes that Malone’s Instruction No. 14, following
OUJI-CR(2d) 4-63, informed his jury that “all [] circumstances connected with a homicidal act” “may be considered” in the determination of “whether or not deliberate intent existed in the mind of the
defendant to take a human life.” This instruction, though general,
allowed Malone’s jury to consider the potential impact of his alleged
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intoxication on the “deliberate intent” element of first-degree murder.
Cf. Fontenot v. State, 1994 OK CR 42, ¶52 n.20, 881 P.2d 69, 84 n.20 (noting that this instruction allowed the jury to consider “all circumstances
surrounding the homicidal act in determining whether [defendant]
had the requisite intent to kill”). Yet this general instruction failed to
require Malone’s jury to consider the impact of his alleged intoxication
in this way.
67. This Court recognizes that the jury’s verdict, finding Malone
guilty of first-degree murder, necessarily implies that his jury did, in
fact, conclude that he deliberately intended to kill Trooper Green.
Nevertheless, Malone’s jury should have been correctly instructed
regarding how his intoxication defense related to the first-degree murder charge against him.
68. The United States Supreme Court has confirmed that harmless
error analysis is appropriate even in cases where jury instructions omit
a required element for a crime upon which the defendant was convicted. See Neder v. United States, 527 U.S. 1, 4, 119 S.Ct. 1827, 1831, 144
L.Ed.2d 35 (holding that “harmless-error rule of Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),” applies to failure to
submit required element of “materiality” to jury); see also id. at 15, 119
S.Ct. at 1837 (“[T]he omission of an element is an error that is subject
to harmless-error analysis . . .”). If harmless error analysis applies even
when an element of a criminal offense has been omitted, it is certainly
appropriate here.
69. Malone’s attorney noted early in her opening statement that the
case would be about “methamphetamine . . . what it does to a person,
how it affects a person’s life, and how it can ruin lives — not only of
the person taking it, but of others.” Defense counsel concluded her
opening statement by telling the jury that Dr. Smith would tell them
“that a person who is using methamphetamine as much as these people were using, and particularly Mr. Malone, cannot form the intent to
do anything. They cannot form the intent to commit a crime.” In her
first-stage closing argument, defense counsel argued that Malone “was
a paranoid schizophrenic when he was on that road and he was awakened by Nik Green. He could not form the intent.” And she concluded
her closing argument as follows:
We would submit to you that Mr. Malone was so intoxicated on
methamphetamine and Lortab that he did not and could not
have physically formed the thought, whether that be a second
before, an hour before, or a day before, to kill Trooper Nik Green.
He did not have the ability to do that because he was smoking
meth every hour on the hour, and taking 40-some Lortab a day.
He could not do that. And we would request that you find in our
favor.
70. In Neder, the Supreme Court concluded that the failure to submit the issue of “materiality” to the jury in that case was “harmless
beyond a reasonable doubt,” because “no jury could reasonably find
that Neder’s failure to report substantial amounts of income on his tax
returns was not ‘a material matter.’” Id. at 16, 119 S.Ct. at 1837. The
Court noted that the evidence of materiality in that case was “overwhelming.” Id.
71. Cf. Brown v. State, 1989 OK CR 33, ¶¶9-10, 777 P.2d 1355, 1358
(although trial court erred in modifying first-degree manslaughter
instruction, by omitting “heat of passion” element, new trial not
required where “evidence clearly showed appellant had a design to
effect death”).
72. The State apparently made exhibit boards from the transcript of
the Dashcam video, which it went through line by line with Malone on
cross examination, to demonstrate that his exchange with Green was
entirely logical and result-oriented. Defense counsel objected to the
State’s use of these demonstrative exhibits at trial, but Malone raises
no challenge to this tactic on appeal.
73. In all of Malone’s statements to his friends after the shooting,
he consistently depicted the incident as one in which he knowingly
and intentionally killed the highway patrol trooper who was attempting to arrest him. In fact, the allegation of hearing “voices” around the
time of the shooting was not even raised by Malone or his counsel until
after the State had rested its case — after Malone met with Dr. Smith
over the weekend break.
74. Dr. Smith acknowledged that he was neither a psychiatrist nor
a psychologist and that he had not administered any tests on Malone.
At one point Smith testified, “[M]y only role was to interview him to
determine whether he had a methamphetamine addiction problem.”
75. When cross examined about the fact that Malone talked to four
different people about what happened and consistently described the
events as him purposefully killing the trooper, with no mention of
“voices” or seeing nonexistent threats, Smith simply maintained that
“there was a lot of conflict in the record” and that he “really [had] no
opinion on that.” Smith testified that his evaluation of Malone was
based upon the Dashcam video and Malone’s statements to him.
2300
76. Smith acknowledged that Malone lied to him about not remembering what had happened. Smith testified, however, that Malone told
him that the reason he had not previously informed his current counsel
about what he remembered was that a former attorney had told him
not to do so.
77. Smith used the phrases “logical, goal-oriented behaviors” that
“speak against brain impairment” like a mantra in his testimony on
cross examination.
78. Malone asserts that the “lengthy cross-examination of the
defendant was excessively argumentative, resembling nothing so
much as an interrogation under hot lamps,” and that the conduct “was
hardly any better during the cross-examination of defense expert
David Smith.”
79. See Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868,
1872, 40 L.Ed.2d 431 (1974) (consider whether challenged conduct
made trial “so fundamentally unfair as to deny [defendant] due process”); Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91
L.Ed.2d 144 (1986) (“The relevant question is whether the prosecutor’s
comments ‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’”) (quoting DeChristoforo).
80. For example, Malone challenges the questioning of Dr. Smith
about whether he could verify Malone’s account of the amount of
Lortab he was taking. This was proper cross examination.
81. Malone’s brief states: “That is not to say that these were not all
legitimate lines of inquiry, but it was not necessary or appropriate for
Mr. Schulte to continue to badger Appellant about things he either
expressly denied, explained, or stated that he could not remember.”
82. Cf. Mitchell v. State, 2006 OK CR 20, ¶101, 136 P.3d 671, 710 (“We
conclude that the manner in which the prosecutor presented his closing argument — yelling and pointing at the defendant as he addressed
him directly — was highly improper and potentially prejudicial.”); see
id. at ¶102, 136 P.3d at 710 (“Trial judges are responsible for protecting
and uholding the honor, dignity, and integrity of the proceedings held
before them.”).
83. Malone states that a number of the prosecutor’s questions were
not “necessary.” Necessity, standing alone, is not the measure of misconduct.
84. And defense counsel’s failure to object to the cited exchanges
did not prejudice Malone.
85. See, e.g., Cargle v. State; 1995 OK CR 77, ¶75 n.15, 909 P.2d 806,
828 n.15, habeas relief granted on other grounds in Cargle v. Mullin, 317
F.3d 1196 (10th Cir. 2003); see also DeRosa v. State, 2004 OK CR 19, ¶83
n.142, 89 P.3d 1124, 1183 n.142 (citing cases).
86. 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
87. See, e.g., Cargle, 1995 OK CR 77, ¶¶68-71, 909 P.2d at 826-27
(discussing appropriate role of victim impact evidence within Oklahoma’s capital sentencing scheme).
88. See, e.g., Ledbetter v. State, 1997 OK CR 5, ¶¶26-29, 933 P.2d 880,
890-91 (recognizing Oklahoma’s legislative authorization of victim
sentencing recommendations and finding no general constitutional
ban to such testimony); Conover v. State, 1997 OK CR 6, ¶62, 933 P.2d
904, 920 (victim sentencing recommendations do not violate the Eighth
Amendment).
89. DeRosa, 2004 OK CR 19, ¶81, 89 P.3d at 1151 (citing Payne, 501
U.S. at 830 n.2, 111 S.Ct. at 2611 n.2); see also Murphy v. State, 2002 OK
CR 24, ¶41, 47 P.3d 876, 885. Indeed, Payne specifically stated that its
holding was “limited to” the admissibility of “evidence and argument
relating to the victim and the impact of the victim’s death on the victim’s family.” 501 U.S. at 830 n.2, 111 S.Ct. at 2611 n.2. The Payne opinion noted that Booth v. Maryland “also held that the admission of a
victim’s family members’ characterizations and opinions about the
crime, the defendant, and the appropriate sentence violates the Eighth
Amendment,” but that such evidence was not presented in Payne. Id.;
see Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987).
Hence the Payne Court declined to comment upon the constitutionality
of allowing victim impact witnesses to recommend a particular sentence for a defendant. In Justice O’Connor’s concurring opinion, joined
by Justices White and Kennedy, she emphasized that the Court’s Payne
decision did not address the constitutionality of second-stage “opinions of the victim’s family about the crime, the defendant, and the
appropriate sentence.” 501 U.S. at 833, 111 S.Ct. at 2612 (O’Connor, J.,
concurring). Although earlier cases from this Court indicated that
Payne had “implicitly overruled” Booth on this issue, see Conover, 1997
OK CR 6, ¶60, 933 P.2d at 920; see also Ledbetter, 1997 OK CR 5, ¶27, 933
P.2d at 890-91, more recent authority from this Court has clarified our
understanding of the Supreme Court’s position on this issue.
90. Malone also argues that the specific statutory language at issue,
citing 22 O.S.2001, §§984, 984.1, does not actually allow victims and
family members to ask a jury for a particular sentence, but rather only
allows them to express their “opinion” to the court, at formal sentencing, about the sentence already “recommended” by the defendant’s
Vol. 78 — No. 25 — 9/15/2007
jury. This same view was expressed by Judge Lane (and joined by
Judge Strubhar) in some of this Court’s earliest victim impact cases.
See, e.g., Ledbetter, 1997 OK CR 5, 933 P.2d at 902-03 (Lane, J., concurring
in result); Conover, 1997 OK CR 6, 933 P.2d at 923-25 (Lane, J., concurring in result). This view, however, has never been able to gain the
support of a majority on this Court; and a recent amendment to
§984.1(A) confirms this Court’s consistent interpretation that the language of this provision is intended to apply to victim impact evidence
presented to a capital sentencing jury. See 22 O.S.Supp.2006, §984.1(A)
(adding language noting that cross examination of victim impact witnesses must be permitted “in a proceeding before a jury . . .”) (effective
November 1, 2006).
91. Malone emphasizes, correctly, that even though our legislature
has approved this kind of evidence, this Court always retains the obligation to evaluate the constitutionality of statutes, when they are
properly challenged in a criminal case. I personally agree with Malone
and would vote to hold that sentencing recommendations from victim
family members in capital cases always violate Due Process and the
Eighth Amendment, because they are irrelevant to the jury’s sentencing determination.
Since the U.S. Supreme Court’s 1976 decision in Woodson v. North
Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), it has been
a guiding principle of death penalty law in this country that the decision about whether or not a person convicted of first-degree murder
should be sentenced to death should be based upon an individualized
consideration of the defendant’s crime and his or her character/background. Justice Stewart’s plurality opinion in Woodson asserted: “[T]he
fundamental respect for humanity underlying the Eighth Amendment
requires consideration of the character and record of the individual
offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of
death.” Id. at 304, 96 S.Ct. at 2991 (internal citation omitted). This has
been a bedrock principle of capital jurisprudence in this country ever
since. See, e.g., Lockett v. Ohio, 438 U.S. 586, 603-604, 98 S.Ct. 2954, 296465, 57 L.Ed.2d 973 (1978) (quoting and relying upon Woodson to conclude that capital defendant must be allowed to present virtually any
evidence relating to crime committed and defendant’s character/background); see also Roberts v. Louisiana, 431 U.S. 633, 636, 97 S.Ct. 1993,
1995, 52 L.E.2d 637 (1977) (per curiam) (quoting Woodson); Eddings v.
Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982)
(same); Enmund v. Florida, 458 U.S. 782, 798, 102 S.Ct. 3368, 3377, 73 L.
Ed.2d 1140 (1982) (same); Blystone v. Pennsylvania, 494 U.S. 299, 304, 110
S.Ct. 1078, 1082, 108 L.Ed.2d 255 (1990) (same); Tuilaepa v. California,
512 U.S. 967, 976, 114 S.Ct. 2630, 2637, 129 L.Ed.2d 750 (1994) (same).
Yet the recommendations of grieving victim’s family members
about whether or not they want the defendant to be sentenced to death
is totally irrelevant to the jury’s individualized evaluation of the defendant and the crime. And such sentencing recommendations are also
not justified by the logic of Payne, which allows the jury to find out
some basic information about the victim whose life was taken. Such
recommendations do reveal something about the feelings and moral
sensibilities of the persons left behind; yet this information is simply
not relevant to the jury’s capital sentencing decision in our system.
Furthermore, in my view, this evidence is simply too powerful —
bringing with it the very real potential of “swamping” all the other
factors and considerations that a capital jury is required to evaluate
within its sentencing determination.
It should be noted that this view, i.e., that capital sentencing recommendations by victim family members remain unconstitutional postPayne, is also the view of the Tenth Circuit Court of Appeals and the
highest courts of numerous States that allow the death penalty, as well
as other appellate courts that have examined the issue. See, e.g., Hain v.
Gibson, 287 F.3d 1224, 1238-39 (10th Cir. 2002); Fryer v. State, 68 S.W.3d
628, 630 (Tex. Crim. App. 2002) Ware v. State, 759 A.2d 764, 783 (Md.
2000); People v. Harris, 695 N.E.2d 447, 467 (Ill. 1998); Farina v. State, 680
So.2d 392, 399 (Fla. 1996); State v. Muhammad, 678 A.2d 164, 172 (N.J.
1996); State v. Taylor, 669 So.2d 364, 370 (La. 1996); State v. Pirtle, 904
P.2d 245, 269 (Wash. 1995); State v. Hoffman, 851 P.2d 934, 941 (Idaho
1993); Ex parte McWilliams, 640 So.2d 1015, 1017 (Ala. 1993); Parker v.
Bowersox, 188 F.3d 923, 931 (8th Cir. 1999).
92. See Cargle, 1995 OK CR 77, ¶76, 909 P.2d at 828 (“[T]he State
should file a Notice of Intent to Produce Victim Impact Evidence,
detailing the evidence sought to be introduced; and an in-camera hearing should be held by the Trial Court to determine the admissibility of
the evidence.”).
93. The curious silence of the district court record is continued at
the appellate level, since Malone’s appellate counsel fails to note this
incomplete procedural history in his current appeal.
94. See OUJI-CR(2d) 9-45. This instruction was promulgated in
Cargle, wherein this Court ordered that it was “to be used in all future
capital murder trials where victim impact evidence has been intro-
Vol. 78 — No. 25 — 9/15/2007
duced.” See Cargle, 1995 OK CR 77, ¶77, 909 P.2d at 828-29. Once again,
however, this failure is not noted or challenged within Malone’s brief
on direct appeal.
95. In Proposition X, Malone asserts that defense counsel’s failure
to object to the now-challenged victim impact evidence constituted
ineffective assistance of trial counsel.
96. Wackerly v. State, 2000 OK CR 15, ¶59, 12 P.3d 1, 18.
97. The State concluded its second-stage case by presenting these
three witnesses.
98. Bowles provided a basic history of her son’s life, from the perspective of his mom. She began with her marriage to his father and
how five years later they were “wonderfully blessed” with a healthy
son. She described their life and parenting style, how careful they were
not to overindulge Green, how dependable and loving he was even as
a young child, how he grew up and graduated from college and got
married, and how he asked her to be there when each of his daughters
was born. Bowles testified about how tender and gentle Green was and
how much he helped both her and her daughter when they went
through divorces and when each of them went through a health crisis.
She testified about how Green struggled in the Oklahoma Highway
Patrol Academy, how he asked for her prayers to get him through, how
he would check on her regularly, since she lived alone, and how he
would tell her, “I love you mama. I’m still your little boy.” She also
read from a birthday card he had given her. (The introduction of this
card into evidence is addressed infra.) Bowles testified about how she
was most proud of her son when he got baptized and was later
ordained a deacon and a minister. She testified about how she got him
some special t-shirts that he had requested for Christmas, how they
were planning to get together later that week for a family celebration,
how she wanted to call him on Christmas Day but didn’t, and how she
left the t-shirts at the funeral home after his death. She testified about
the misery and numbness she experienced when she was told of her
son’s death and how depressed and isolated she felt afterward. She
described her efforts to cope with the loss, for the sake of her grandchildren, through working in the schools. She described where Green
was buried and seeing one of the white doves that was released at his
service. She described spending time with Green’s daughters and talking with them about what he was like. Bowles also described having a
dream, in which she is out with her son at the time of the shooting and
she is begging “that person,” just like Green did, “Please, don’t. Please
don’t.” At the end of her testimony, Bowles apologized that she had
“kind of messed this up,” apparently by going off her scripted victim
impact statement. The prosecutor then asked her if she had a request
of the jury regarding punishment, and she answered, “I request the
death penalty.” There was no cross examination.
99. The prosecutor directed Huyssoon: “Just tell them what you’d
like them to know about him.”
100. Huyssoon began by reading from a birthday card her brother
had given her. (The propriety of this evidence is discussed infra.) She
described how blessed she was to have such a wonderful big brother,
who would have done anything in the world for her. She described
their childhood and how they spent almost all their free time together,
playing games, working on the farm, sometimes fighting but never
tattling (because neither could stand to see the other punished), and
how Green would scare her and she would pester him. She described
how they supported each other when their father died unexpectedly,
how Green was her “rock through a terrible divorce and custody battle,” how he brought her through surgery and looked after her three
children, how she was there when his children were born, and how he
stood beside her when she got married. Huyssoon testified how much
she and Green enjoyed sharing stories about their children and how
they wanted to live close to each other, so their children could grow up
together. She testified that when their mother eventually died, she’d be
alone. She described having nightmares about the morning Green was
killed, reliving his final ten minutes every night, and how she wished
she could have traded places with him. She also described the reactions of Green’s wife, their mother, and herself to the news of his death
and how it scared her children. And she described the look in the eyes
of Green’s three daughters on the day they went in to view their daddy’s body. Huyssoon testified that she had trouble sleeping and eating
for the first six months, “because it didn’t seem fair” that Green could
no longer eat, and how helpless and awful she continued to feel when
others in the family cried. She testified that words could not express
how much she missed her brother and that she wished she could tell
him “what an awesome example he was to me and how much I loved
him.” She noted that Christmas would never be the same, that a huge
part of herself died when her brother died, and that nothing could ever
fill that void. Finally, after a question from the prosecutor about
whether she would like to request a specific sentence, Huyssoon concluded by stating, “I would like to request the death penalty.” There
were no objections and no cross examination.
2301
101. Mrs. Green testified that at the time of the trial, over seventeen
months after the murder, their daughters were 10, 7, and 3 years old.
102. Mrs. Green described how six months after she prayed for
such a man, she and Nik Green began dating, and she knew “he was
the one that God had provided.” She described their shared Christian
backgrounds and values, how they waited to get married until Nik
had graduated from college, and how their first daughter was born
two years later. She testified about her husband’s calling to law
enforcement, how he began as a reserve deputy and ultimately realized his dream of graduating from the Oklahoma Highway Patrol
Academy, just before the birth of their second child. Mrs. Green also
testified about her husband’s other calling, to serve the Lord as a minister, and how they got increasingly involved in the First Baptist
Church in Devol, particularly in youth ministry. She described the
birth of their third child, who was “daddy’s sugar,” and how close she
was to her daddy. Mrs. Green described how her husband was surrounded by women in their family and how he loved taking care of all
of them. She testified that her husband had a “servant’s heart,” which
was why he was happy to help the young lady who came to their door
that December morning.
103. Dodd v. State, 2004 OK CR 31, ¶101, 100 P.3d 1017, 1046 (quoting Welch v. State, 2000 OK CR 8, ¶46, 2 P.3d 356, 374); Ledbetter, 1997
OK CR 5, ¶31, 933 P.2d at 891 (“Any opinion as to the recommended
sentence should be given as a straightforward, concise response to a
question asking what the recommendation is; or a short statement of
recommendation in a written statement, without amplification.”); see
also Conover, 1997 OK CR 6, ¶70, 933 P.2d at 921 (recommendation of
sentence “should be limited to a simple statement of the recommended
sentence without amplification”).
104. This Court noted in Ledbetter that trial courts “must use
extraordinary care” in evaluating victim sentencing recommendations
and that “while theoretically admissible, this evidence will be viewed
by this Court with a heightened degree of scrutiny as we apply the
probative-value-versus-prejudicial-effect analysis.” 1997 OK CR 5,
¶31, 933 P.2d at 891; see also Conover, 1997 OK CR 6, ¶69, 933 P.2d at 921
(noting “heightened degree of scrutiny” for such recommendations).
105. See Washington v. State, 1999 OK CR 22, ¶61 & n.13, 989 P.2d
960, 978 & n.13 (finding that letter from father of murder victim, which
stated “Our Bible say’s [sic] eye for eye” and requested that the jury
“[p]lease just accomlish [sic] the right Godly justice,” “exceeded the
bounds of permissible victim impact evidence given the overamplified
request for the death penalty and the biblical references”); see also Long
v. State, 1994 OK CR 60, ¶48, 883 P.2d 167, 177 (“[I]mplying God is on
the side of a death sentence is an intolerable self-serving perversion of
Christian faith as well as the criminal law of this State.”). This Court
has recognized that it is not improper in a victim impact statement to
address “the victim’s religious preferences, so long as this evidence
does not dominate the statement.” Ledbetter, 1997 OK CR 5, ¶25, 933
P.2d at 890.
106. We address whether this error can be considered “harmless”
or not infra.
107. Bowles testified that in her card Green wrote, “Thank you,
Mama, for raising me the way you did. Now I know, since I’m raising
my three girls, and I appreciate it.” She testified that he also wrote,
“Thank you for sharing Jesus Christ with me, and making me do what
was right.” Huyssoon described the front of her card, which contained
a picture of a little boy and girl and the writing, “Love to my sister on
her birthday,” as well as the inside of the card, which said, “Many of
my happiest memories have been made side by side with you.” Huysson testified that Green added the following handwritten note to her
card:
We’ve had a lot of fun and good times together. I have a
special feeling of closeness to you, although I don’t see or talk to
you each day. I occasionally thought of you when you were little
as a pest [indicating], but I certainly did and continue to truly
love you. I look back on all of it and love that I was and I am
blessed [indicating] to have you as my little sis. Happy birthday.
Brother (Nik)
108. 1999 OK CR 22, 989 P.2d 960.
109. Id. at ¶60, 989 P.2d at 977-78.
110. Id. at ¶60, 989 P.2d at 978.
111. Id. (citations omitted); see also Ledbetter, 1997 OK CR 5, ¶48, 933
P.2d at 895 (noting that hearsay statements outside of recognized
exceptions are “just as inadmissible in a victim impact statement as
[they are] in any other form of evidence presented at trial”) (citing
Conover).
112. And this Court finds that the letters were not admissible on
this basis.
113. See Ledbetter, 1997 OK CR 5, ¶24, 933 P.2d at 890 (cautioning
that victim impact evidence “should not be lengthy”); Cargle, 1995 OK
CR 77, ¶75, 909 P.2d at 828 (evidence about victim’s “personal charac-
2302
teristics should constitute a ‘quick’ glimpse” of the victim’s life) (citing
Payne, 501 U.S. 830, 111 S.Ct. at 2611).
114. In Cargle, this Court, relying upon the rationale and language
of Payne, summarized the legitimate purpose of victim impact evidence as follows:
[V]ictim impact evidence is permissible because “the State
has a legitimate interest in counteracting the mitigating evidence
which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an
individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.
1995 OK CR 77, ¶69, 909 P.2d at 826 (quoting Payne, 501 U.S. at 825, 111
S.Ct. at 2608); see also Conover, 1997 OK CR 6, ¶64, 933 P.2d at 920 (finding that improper victim impact evidence “weigh[ed] the scales too far
in favor of the prosecution”).
115. Cargle, 1995 OK CR 77, ¶74, 909 P.2d at 828 (quoting 22 O.
S.Supp.1993, §984).
116. Id. at ¶75, 909 P.2d at 828 (internal citations omitted). This
Court summarized:
Mitigating evidence offers the factfinder a glimpse of why a
defendant is unique and deserves to live; victim impact evidence
should be restricted to those unique characteristics which define
the individual who has died, the contemporaneous and prospective circumstances surrounding that death, and how those circumstances have financially, emotionally, psychologically, and
physically impacted on members of the victim’s immediate family.
Id. at ¶75, 909 P.2d at 828.
117. Id. at ¶81, 909 P.2d at 830. We added: “The more a jury is
exposed to the emotional aspects of a victim’s death, the less likely
their verdict will be a ‘reasoned moral response’ to the question
whether a defendant deserves to die; and the greater the risk a defendant will be deprived of Due Process.” Id.
118. For example, in Cargle, this Court found that testimony about
what the victim was like as a child, i.e., that he was “a cute child at age
four,” did not fit any of the criteria for permissible victim impact evidence, and in particular, that it did not show how the death “financially, emotionally, psychologically, [or] physically impacted” on the
victim’s family. Id. at ¶80, 909 P.2d at 829. Yet in Conover, 1997 OK CR
6, ¶66, 933 P.2d at 921, this Court characterized comments about what
the victim was like as a baby and growing up as relevant to “the emotional impact of the victim’s death,” though we still cautioned against
the due process risks of such testimony.
119. In Ledbetter, this Court noted that “victim impact evidence
must ordinarily be turned over to the opposing party at least ten (10)
days before trial,” and found that stating simply that a witness would
testify regarding “the impact [the victim’s] death has had on him and
his family” was insufficient notice. 1997 OK CR 5, ¶¶42-46, 933 P.2d at
894.
120. We address the issue of prejudice from inadequate performance within Proposition X infra.
121. See Cargle, 1995 OK CR 77, ¶77, 909 P.2d at 828-29 (promulgating uniform instruction now known as OUJI-CR(2d) 9-45 and ordering
that it “be used in all future capital murder trials where victim impact
evidence has been introduced”). Here again, we hold accountable all of
the parties who could have prevented this error, i.e., the State, defense
counsel, and the trial court.
122. Malone and numerous Mexican people were attending an
after-hours party at the Altus home of a Mexican man, who, along with
many of his guests, had asked Malone to leave, but Malone refused to
go.
123. An affidavit from Beth Malone is attached to Malone’s Application for an Evidentiary Hearing in this case and is discussed infra in
Proposition X.
124. One of the officers testified that Malone had blood on the
knuckles of his right hand.
125. An affidavit from Kaspereit is attached to Malone’s Application for an Evidentiary Hearing in this case and is discussed infra in
Proposition X.
126. After losing both of his jobs, Malone apparently began using
methamphetamine even more heavily and devoted all his efforts to
manufacturing and distributing this drug.
127. A videotape of this stop, taken from inside Carman’s vehicle,
was admitted into evidence.
128. Carman noted that the shotgun had “no butt . . . . So basically
it was just like a pistol and it was a pump shotgun.”
129. As noted earlier, Malone was charged with attempted manufacture of methamphetamine, possession of precursor ephedrine, and
with possessing three loaded and accessible firearms. He was released
on a $50,000 bond.
Vol. 78 — No. 25 — 9/15/2007
130. Evidence was presented that Malone would defecate in the
corner of his cell, even though he had a working toilet in his new cell,
and that he did so directly underneath a videocamera intended to
monitor his cell, i.e., in an area outside the view of this camera.
131. King’s testimony in this regard is further discussed infra in
Proposition V.
132. Moon testified that the OC used on Malone had “325,000
burning units,” but that as a result of the incident with Malone, the
detention facility ordered a stronger OC, containing “2 million burning
units,” which is what it currently uses.
133. Lehew’s testimony regarding these incidents is further discussed infra in Proposition V.
134. These potential weapons included shanks made from strungtogether shards of tile, a plastic spoon, and a shaving can.
135. Malone does not challenge the sufficiency of the evidence to
support the three aggravators found by the jury in his case.
136. This Court notes that Malone has raised a substantial claim on
appeal that his counsel was ineffective for failing to investigate and
present a significant amount of available and potentially powerful
mitigating evidence on his behalf. This claim is addressed infra in
Proposition X.
137. Malone’s jury was properly instructed, in accord with OUJICR(2d) 4-80, which states: “Even if you find that the aggravating
circumstance(s) outweigh(s) the mitigating circumstance(s), you may
impose a sentence of imprisonment for life,” with or without the possibility of parole.
138. In Oklahoma, if a single juror refuses to agree to a death sentence, the defendant must be sentenced to life or life without parole by
the trial court, even if all eleven of the remaining jurors agree that the
defendant should be sentenced to death. See 21 O.S.2001, §701.11.
139. See Washington, 1999 OK CR 22, ¶62, 989 P.2d at 978-79 (insisting that sentencing recommendations “should be concise statements of
the recommendation without amplification and reference to a higher
power” and warning that “[d]eviating from these rules allows reversible error to creep in”); id. at ¶64, 989 P.2d at 979-80 (reversing death
sentence and modifying to life without parole based upon improper
victim impact evidence, including overamplified and religious request
for death penalty, ineffective assistance, and prosecutorial misconduct).
140. See Ledbetter, 1997 OK CR 5, ¶84-86 P.2d at 902 (remanding for
new capital sentencing based upon admission of improper victim
impact evidence, “as we cannot say the introduction of the evidence in
this particular case was harmless beyond a reasonable doubt”);
Conover, 1997 OK CR 6, ¶80, 933 P.2d at 923 (remanding for new capital
sentencing based, in part, upon “improperly admitted victim impact
evidence”).
141. See discussion of prosecutor’s second-stage closing argument
in Proposition XI infra.
142. Cf. Mitchell, 2006 OK CR 20, ¶110, 136 P.3d at 712 (“Although
a capital jury certainly could choose to sentence [the defendant] to
death even after a properly conducted resentencing, . . . . we find that
an actual jury, not this Court, should make this call.”).
143. This claim is often (though strangely) characterized, by parties
and courts alike, as a claim that the cited aggravators are “duplicitous.” Yet this challenge is about duplication, not deceit.
144. See United States v. McCullah, 76 F.3d 1087, 1111 (10th Cir. 1996)
(finding that “double counting of aggravating factors, especially in a
weighing scheme, has a tendency to skew the weighing process and
creates the risk that the death sentence will be imposed arbitrarily and
thus, unconstitutionally”).
145. See Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir. 1998) (quoting
McCullah, 76 F.3d at 1111). We note that Malone’s brief effectively concedes that the challenged aggravators are not duplicative under this
test, when it states as follows: “It is certainly possible for the murder to
avoid arrest aggravator to apply even when the victim was not a peace
officer, . . . just as it is at least theoretically possible for a peace officer
to be murdered in the performance of his or her duties for a purpose
other than avoiding arrest.”
146. See, e.g., Wood v. State, 1998 OK CR 19, ¶51, 959 P.2d 1, 14
(“[B]ecause each aggravator covers a different aspect of Appellant’s
criminal history, there is no overlapping of the aggravating circumstances.”); Cannon v. State, 1998 OK CR 28, ¶57, 961 P.2d 838, 853
(“Because these aggravators address different aspects of Appellant’s
conduct and one can be found without necessarily finding the other[],
there is no double counting of aggravating factors . . . .”); see also Smith
v. State, 1991 OK CR 100, ¶35, 819 P.2d 270, 278 (noting that where same
evidence “is used to establish multiple aggravating circumstances
referring to the same aspect of a defendant or his crime, . . . only one
of the duplicated circumstances should be weighed against whatever
mitigating factors the jury may consider”) (citing cases).
Vol. 78 — No. 25 — 9/15/2007
147. The transporting officers apparently knew about the prior
handcuff key incident at the hospital, and they did a thorough body
cavity search in preparation for Malone’s transport.
148. Malone’s behavior on October 7, 2004, was summarized supra
in Proposition III.
149. Lehew testified that in his 23 years of experience, he had never
seen anyone else tear up a set of cuffs or leg irons in this way.
150. Defense counsel did not object to this testimony.
151. 12 O.S.Supp.2002, §2701.
152. 12 O.S.Supp.2002, §2702. Expert opinion testimony is only
admissible if it will “assist the trier of fact to understand the evidence
or determine a fact in issue.” Id.
153. But see Littlejohn v. State, 2004 OK CR 6, ¶¶34-35, 85 P.3d 287,
299 (characterizing as “lay opinion testimony” the testimony of a witness who had investigated multiple complaints filed against the defendant — for violent, assaultive, and dangerous behavior — that the
defendant was “dangerous even in a prison setting,” because this
conclusion was partially based upon some personal interactions with,
i.e., perceptions of, the defendant). Even though King and Lehew also
testified as fact witnesses, regarding one or more encounters they personally had with Malone, their risk evaluation testimony appears to
have been based primarily upon their substantial experience in evaluating inmates for “security risk.” Their testimony was not and did not
purport to be “scientific,” however; hence it was not subject to the
requirements of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
154. While the State acknowledges that the security assessment of
Malone by Lehew was offered as expert opinion testimony, the State
argues that the assessment by King was merely lay opinion testimony,
since King testified only about one particular experience he had with
Malone. This Court disagrees and finds that King neither stated nor
implied that his risk assessment of Malone was based entirely on his
one interaction with Malone. King was apparently well aware of the
prior incident with Malone, which was why he was looking so thoroughly for the handcuff key.
155. See Littlejohn, 2004 OK CR 6, ¶35, 85 P.3d at 299 (testimony that
defendant was “dangerous even in a prison setting” was relevant to
prove continuing threat aggravator).
156. See, e.g., Walker v. State, 1994 OK CR 66, ¶66, 887 P.2d 301, 320
(rejecting vagueness and overbreadth challenges to continuing threat
aggravator, as well as challenges to its application); Malone v. State,
1994 OK CR 43, ¶27, 876 P.2d 707, 715-16 (listing cases rejecting constitutional challenges to continuing threat aggravator); VanWoudenberg v.
State, 1986 OK CR 81, ¶25, 720 P.2d 328, 336-37 (finding aggravator to
be “specific and readily understandable” and not requiring further
definition). The United States Supreme Court has likewise recognized
that “the likelihood of a defendant’s committing further crimes is a
constitutionally acceptable criterion for imposing the death penalty.”
See Barefoot v. Estelle, 463 U.S. 880, 896, 103 S.Ct. 3383, 3396, 77 L.Ed.2d
1090 (1983).
157. We likewise decline to address Malone’s derivative (and
waived) challenge to Oklahoma’s uniform jury instructions regarding
this same aggravator.
158. See Dunkle v. State, 2006 OK CR 29, ¶41, 139 P.3d 228, 242.
159. See 12 O.S.Supp.2003, §2403.
160. See Hogan v. State, 2006 OK CR 19, ¶¶62-64, 139 P.3d 907, 93031; see also Marquez-Burrola, 2007 OK CR 14, ¶¶30-31, 157 P.3d 749, 760
(addressing constitutional challenge to amended §2403 and noting that
its constitutionality does not depend upon the political motives of the
legislators who voted for it).
161. 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
162. Id. at 822, 111 S.Ct. at 2607; see also id. at 832, 111 S.Ct. at 2612
(O’Connor, J., concurring) (“‘Murder is the ultimate act of depersonalization.’ It transforms a living person with hopes, dreams, and fears
into a corpse, thereby taking away all that is special and unique about
that person. The Constitution does not preclude a State from deciding
to give some of that back.”) (internal citation omitted).
163. The prosecutor pointed out this phenomenon during his second-stage closing argument, when he stated as follows: “The individual you’re setting on has a very dark, cold side. Nik Green saw that
side. You’ve seen him at his very best. This is the best — best face he
can put on for a two-week period. Jailers and others saw the other side
of him.”
164. See OUJI-CR(2d) 4-78 (“Mitigating circumstances are those
which, in fairness, sympathy, and mercy, may extenuate or reduce the
degree of moral culpability or blame.”).
165. Malone did not preserve this claim at trial, however, hence we
review it only for plain error.
166. See OUJI-CR(2d) 4-78 (“[U]nanimous agreement of jurors
concerning mitigating circumstances is not required.”)
2303
167. See, e.g. Williams v. State, 2001 OK CR 9, ¶¶108-09, 22 P.3d 702,
727-28; Cummings v. State, 1998 OK CR 45, ¶58, 968 P.2d 821, 838; Knighton v. State, 1996 OK CR 2, ¶¶74-76, 912 P.2d 878, 895-96.
168. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984); Williams v. Taylor, 529 U.S. 362, 390-91, 120
S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000).
169. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. And a “reasonable
probability” in this context “is a probability sufficient to undermine
confidence in the outcome.” Id.
170. Although Malone complains that his counsel “opened the
door” on this issue, he does not cite anywhere in the record that the
State took advantage of this action. The State suggests that defense
counsel’s strategy was to establish that Malone had previously submitted to authorities when he was arrested, to support Malone’s assertion
that he would have submitted to Trooper Green if he had realized
Green was a law enforcement officer. This later exchange between
defense counsel and Malone supports this argument:
Q. Had you known it was a highway patrol trooper what
would you have done?
A. I would have submitted.
Q. Which you did every other time you were confronted
with law enforcement.
A. Yes.
The fact that Malone’s testimony was unreasonable and unbelievable
does not mean that his counsel’s attempt to develop a broader case
theory around this testimony was unreasonable.
171. Malone also notes, as an example of inadequate preparation,
that he prevailed on his change of venue motion because of the failure
of his counsel to provide the State with a timely copy of this defense
expert’s report. See note 1 supra. Yet Malone can hardly claim he was
prejudiced by any incompetence in this regard — whether of his
counsel or his expert — because it resulted in the granting of his
change of venue motion, which was presumably to his benefit.
172. As Malone acknowledges, however, the trial court did not
penalize him for this mid-trial shift in theory. In fact, the trial court
granted Malone’s request that his jury be instructed upon both voluntary intoxication and insanity — based upon Smith’s testimony that
methamphetamine intoxication is akin to paranoid schizophrenia —
even though Malone had given no notice that he would present an
insanity defense. The court’s generosity in this regard was wise and
prudent.
173. Malone contends that the “true facts” are that he has basic
memory of what happened, but that he was essentially insane due to
“amphetamine psychosis”; hence he was not perceiving reality accurately. Malone maintains that if he had met with his expert sooner, his
attorneys would have earlier learned that he was lying to them about
his lack of memory; hence they could have better pursued an insanity
theory (by securing more experts, arguing one coherent theory at trial,
etc.). This Court has grave doubts about whether a defendant can ever
establish ineffective assistance based upon defense counsel’s failure to
more timely discover that the defendant is lying to that same counsel,
i.e., that the defendant is lying to his or her own attorney(s).
174. After acknowledging the trial court, the prosecutor, and the
jury, defense counsel began:
This is the last time that anyone will speak for Ricky Malone.
In essence, I am the last voice on his behalf, which is, quite
frankly, a pretty heavy burden to bear.
I’m going to come to you and ask you, unlike Mr. Schulte, to
consider something less than death. You have already, by your
verdict on Tuesday, in — found that my client has committed
murder and that the murder was premeditated.
And let’s just cut to the chase: With those aggravating circumstances there’s no question — I mean, your verdict said that
he killed a highway patrolman in the performance of his duty.
That is a given. I’m not going to stand here and argue that that
aggravator isn’t present. I’m not going to stand here and argue
that the second one of murder to prevent arrest or prosecution
isn’t present. Of course it is. There isn’t any question. You could
check that now.
But there’s more to this case than that. There is more to this
case than just the fact that there are at least two — I mean, the
third aggravator — what does it matter in the greater scheme of
things so far as the legal ramifications go?
175. Defense counsel began his second-stage opening statement as
follows:
Ladies and gentlemen of the jury, this — this phase of the
case is obviously the hardest. The issue is what kind of penalty
you’re going to assess against Rick Malone.
Obviously, you have, by your verdict, found that he is guilty.
Obviously, the aggravating circumstances that are necessary to
assess the death penalty by your verdict have been — have been
2304
found. So the only issue in this case is Ricky Malone and the only
issue is what kind of punishment will you assess.
176. It is somewhat surprising, however, that defense counsel
would begin the second stage by suggesting that the aggravators necessary to execute Malone already “have been found,” which appears to
minimize the jury’s fact-finding responsibilities in the second stage.
177. This too seems a rather strange suggestion, since whether a
defendant remains “a continuing threat” of future violent acts would
seem, almost inevitably, to be a highly significant question for jurors
attempting to decide whether or not to sentence that individual to
death.
178. In fact, Malone’s brief “acknowledges that there simply was
no defense to these aggravators.”
179. In addition to conceding aggravators, defense counsel failed
to make any argument countering the State’s claim that the aggravating circumstances in the case exceed the mitigating evidence presented. In fact, shortly after suggesting in his opening statement that “our
lives are not defined by a single act,” and that the rotten things Malone
did all occurred in a two-year period, defense counsel appeared almost
to concede the inevitability of a death sentence. He stated, “But before
you decide that you’re going to kill Ricky Malone or have him executed, you need to look at all of his life, not just the very narrow window
that the District Attorney is going to present.”
180. Defense counsel noted that “just 18 months before . . . [Malone] was a productive, fun-going, caring person, who has now become
a paranoid, hallucinating person who would shoot another human
being.”
181. Defense counsel’s final remarks were as follows: “The bottom
line is that Ricky Malone will die in prison. He will die in prison. And
the only decision that you’ll make is who will determine the day, the
year, the month. Will you make that determination, or will you let
God.”
182. Although the claim is labeled “Claim Three” in Malone’s
application, there are only two claims; and this is the second one.
183. At the end of his nine-page report, Dr. Price concludes that
Malone “represents a minimal risk for violence if incarcerated and a
mild-to-moderate risk if released into the free world.”
184. See Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2006) (quoted infra in text).
185. Id.; see also Taylor v. State, 1998 OK CR 64, 972 P.2d 864 (discussing and applying rule).
186. See Rule 3.11(B)(3)(b)(i).
187. See, e.g., Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495,
1513, 146 L.Ed.2d 389 (2000) (“[I]t is undisputed that Williams had a
right — indeed, a constitutionally protected right — to provide the
jury with the mitigating evidence that his trial counsel either failed to
discover or failed to offer.”); Warner v. State, 2001 OK CR 11, ¶15, 29
P.3d 569, 575 (“It is beyond dispute that mitigating evidence is critical
to the sentencer in a capital case.”); Wallace v. State, 1995 OK CR 19,
¶12, 893 P.2d 504, 510 (“It is beyond question mitigating evidence is
critical to the sentencer in a capital case.”) (citations omitted).
188. See Williams, 529 U.S. at 398, 120 S.Ct. at 1516 (“Mitigating
evidence unrelated to dangerousness may alter the jury’s selection of
penalty, even if it does not undermine or rebut the prosecution’s deatheligibility case.”); Marquez-Burrola v. State, 2007 OK CR 14, ¶46, 157
P.3d 749, 764 (“[M]itigation evidence can, quite literally, make the difference between life and death in a capital case.”).
189. See Williams, 529 U.S. at 398-99, 120 S.Ct. at 1516; Wiggins v.
Smith, 539 U.S. 510, 538, 123 S.Ct. 2527, 2544, 156 L.Ed.2d 471 (2003);
Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 2469, 162 L.Ed.2d 360
(2005); Marquez-Burrola, 2007 OK CR 14, ¶62, 157 P.3d at 768; Warner,
2001 OK CR 11, ¶¶14-18, 29 P.3d at 574-75; cf. Garrison v. State, 2004 OK
CR 35, ¶¶168-69, 103 P.3d 590, 619-20 (reversing death sentence based
upon appellate ineffective assistance, for failure to adequately present
seemingly meritorious claim of ineffective assistance of trial counsel
regarding second-stage mitigation case).
190. See Williams, 529 U.S. at 396, 120 S.Ct. at 1515 (noting capital
defense counsel’s “obligation to conduct a thorough investigation of
the defendant’s background”).
191. Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066; see also Wiggins,
539 U.S. at 527, 123 S.Ct. at 2538 (“In assessing the reasonableness of an
attorney’s investigation, . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the
known evidence would lead a reasonable attorney to investigate further.”); Marquez-Burrola, 2007 OK CR 14, ¶54, 157 P.3d at 766
(“[C]ounsel’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.”).
192. See id. at ¶54, 157 P.3d at 766 (“The amount of deference given
to counsel’s strategic decisions depends on the amount of investigation
Vol. 78 — No. 25 — 9/15/2007
that went into them”) (citing Strickland); Wiggins, 539 U.S. at 526-27,
123 S.Ct. at 2538 (contrasting “strategic decision” to limit pursuit of
mitigating evidence with “post-hoc rationalization of counsel’s conduct”) (emphasis in original).
193. Cf. id. at 524, 123 S.Ct. at 2537 (criticizing defense counsel who
“abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources”).
194. Sturdevant states that she only spoke to Malone’s attorneys
twice, once before she testified for the State in the first stage and once
just before testifying in the second stage. She adds:
Right before I testified for the Defense, Mr. Gutteridge told
me to tell him about my brother and our childhood. He said to
just tell the good points about my brother from childhood to the
day this happened. I didn’t have time to think about it and get
myself together. Mr. Gutteridge spent about 10 to 15 minutes
with me each time he talked to me.
See Affidavit of Tammy Sturdevant, Exhibit W.
195. See Affidavit of Martha King, Exhibit Y. King also states that
she told Malone’s attorney that she would testify as a character witness, but that the attorney said “no,” “because he was going to use
Rick’s sister Tammy and Rick’s wife Colleen.” Id.
196. See Affidavit of Cathy Lehew, Exhibit J (EMS co-worker); Affidavit of Jeff Lehew, Exhibit K (EMS and fire department co-worker);
Affidavit of Dewayne Kaspereit, Exhibit M (fire department co-worker); Affidavit of Greg Wortham, Exhibit N (fire department co-worker);
Affidavit of Johnny Owens, Exhibit O (fire department co-worker);
Affidavit of Gary Wainscott, Exhibit P (fire department co-worker);
Affidavit of Phil Stidham, Exhibit Q (EMS co-worker); Affidavit of
Teresa D. “Reese” Marshall, Exhibit V (ER nurse). The only co-worker
affidavit that does not make these assertions is that of Darrel Meadows. See Affidavit of Darrel Meadows, Exhibit L (fire department coworker). Meadows does not address whether he was contacted by
defense counsel or not.
197. See Affidavit of Dewayne Kaspereit, Exhibit M. Kaspereit
states that Don Gutteridge was the attorney for whom he left the message. The fact that Kaspereit was willing to testify for Malone at all is
noteworthy, since when Malone’s methamphetamine was found at the
fire station, he initially attempted to implicate Kaspereit, stating that
the drugs probably belonged to him.
198. See Affidavit of Mary Beth Malone, Exhibit C. The identity of
Beth Malone was known to both defense counsel and Malone’s jury,
since she was referred to in both stages of his trial in regard to a
“domestic disturbance” at their home and their subsequent divorce.
199. See Affidavit of Donna Childers, Exhibit A (paternal aunt);
Affidavit of Katy Landrum, Exhibit B (sister); Affidavit of Ricky Brad
Malone, Exhibit D (adopted son); Affidavit of Rick Malone Senior,
Exhibit E (father); Affidavit of Kenneth Vaughn, Exhibit F (brother-inlaw); Affidavit of Kristy Vaughn, Exhibit G (sister); Affidavit of Calvin
Townley, Exhibit H (stepfather); Affidavit of Harold Childers, Exhibit I
(grandfather); Affidavit of Ron Mulkey, Exhibit T (pastor); Affidavit of
Sally Yearicks, Exhibit U (cousin of Beth Malone). Two other attached
affidavits do not contain a specific statement about willingness to testify, but their content strongly suggests a desire to help Malone, whom
the affiants knew, admired, and appreciated in better times. See Affidavit of Susan Evans, Exhibit R (friend and employer); Affidavit of Dale
Harris, Exhibit S (coach and teacher).
200. See Affidavit of Katy Landrum, Exhibit B (“Rick’s wife Colleen
Malone asked my twin sister Kristy and me to attend the whole trial
just in case Rick’s lawyer needed to put us on the stand. We were at the
trial the whole time, but Rick’s attorney never talked to us.”).
201. Cf. Wiggins, 539 U.S. at 526, 123 S.Ct. at 2537 (noting record
suggests that defense counsel’s “failure to invstigate thoroughly
resulted from inattention, not reasoned strategic judgment”); MarquezBurrola, 2007 OK CR 14, ¶54, 157 P.3d at 766 (“[C]ounsel’s brief, eleventh-hour discussion with Appellant’s parents and sister about testifying in the punishment stage . . . surely does not begin to approach a
true mitigation investigation.”).
202. Defense counsel’s decision to rely only on these two witnesses
is particularly surprising, since counsel was (or should have been) well
aware of their vulnerabilities and limited value as witnesses. Defense
counsel knew that Sturdevant was the one who introduced Malone to
methamphetamine, that she was one of his drug-making cohorts, that
she did what she could to help Malone avoid being caught for killing
Green, and that she later told numerous lies on his behalf, in a continuing effort to help her brother avoid conviction for his crime — including under oath at his preliminary hearing. And defense counsel had to
know that Malone’s jury would learn all of these things as well.
And while Colleen Malone did not have quite so many vulnerabilities as a witness, she had only been married to Malone for two years
and had only known him for six months when they got married. In
Vol. 78 — No. 25 — 9/15/2007
fact, it wasn’t clear from her testimony that she ever knew him very
well. She testified that she did not know that he was terminated from
the fire department in September of 2003, or that he was subsequently
fired from the ambulance service, and that she did not learn that he
had lost these jobs until “much later.” She testified that Malone
“seemed depressed” and got “real distant” in the fall of 2003, and that
“he was always just away from me.” Although they lived in the same
home, and Colleen admitted knowing that her husband was buying
guns and putting up surveillance equipment, she denied having any
knowledge that he was using or making methamphetamine — despite
Malone’s testimony that he was using heavily during this time and the
vast array of materials associated with manufacturing this drug that
were found in their home and garage (and put into evidence by the
State during the second stage). In fact, defense counsel acknowledged
in his second-stage opening that Colleen Malone would “say that she
didn’t know, but she did know what was going on.” She did admit to
initially providing police false information regarding her husband’s
whereabouts on the morning of the murder, explaining that Malone
asked her to do so and that she didn’t know “the severity” of what was
at stake.
Overall, the testimony of Colleen Malone, wife of a man whose life
was on the line, appears to have been surprisingly anemic. Her
descriptions of her husband’s personality were rather cryptic — “real
funny,” “[r]eal sweet,” “always happy” — and while she said Malone
was a “good father” to their son (born in December of 2002), her only
example of this was that Malone was “always taking care of him, you
know.” In fact, although Colleen Malone testified that she would continue to visit Malone in jail, because he was her husband and she loved
him, she concluded her testimony without ever even asking the jury to
spare his life.
203. 2007 OK CR 14, ¶55, 57 P.3d at 766 (emphasis in original).
204. Id. at ¶55, 157 P.3d at 767.
205. Affidavit of Cathey Lehew, Exhibit J.
206. Affidavit of Jeff Lehew, Exhibit K.
207. Affidavit of Darrel Meadows, Exhibit L.
208. Affidavit of Dewayne Kaspereit, Exhibit M.
209. Affidavit of Greg Wortham, Exhibit N.
210. Affidavit of Johnny Owens, Exhibit O.
211. Affidavit of Gary Wainscott, Exhibit P.
212. Affidavit of Phil Stidham, Exhibit Q.
213. Affidavit of Teresa D. “Reese” Marshall, Exhibit V. Marshall
also recalls Malone “resting his head on the counter, totally exhausted
after doing CPR on a patient until it was no longer needed — drained
physically, emotionally and drenched in sweat.”
214. Affidavit of Dewayne Kaspereit, Exhibit M. Kaspereit notes
that he does not “condone what Rick did because I knew Nikky Green.
But I believe Rick wasn’t in his right mind.”
215. See, e.g., Affidavit of Cathey Lehew, Exhibit J (“There was
really a change in Rick when it came out that Beth was seeing the
assistant fire chief. . . . I think he was embarrassed and humiliated. This
went on for quite awhile.”); Affidavit of Martha King, Exhibit Y (“Rick
and his wife Mary Beth divorced in about 2000, and his mother passed
away in April 2002. Rick took both losses very hard.”).
216. See, e.g., id.; Affidavit of Donna Childers, Exhibit A (“I think
some of Rick’s breaking point was when his mom passed away.”);
Affidavit of Katy Landrum, Exhibit B (“I noticed Rick changing about
six months to a year after our mom passed away.”).
217. See, e.g., Affidavit of Darrel Meadows, Exhibit L (“When drugs
were found at the fire station, most of us thought it was some other
guy. After the murder happened, we took a series of courses about
what to look for with meth addiction in a co-worker.”).
218. See Affidavit of Beth Malone, Exhibit C.
219. Beth, who is over seven years older than Malone, notes that
she initially thought Malone was too young for her. Id. They got married the day after Malone graduated from high school. See Affidavit of
Martha King, Exhibit Y. Malone was 17 years old at the time.
220. See Affidavit of Beth Malone, Exhibit C (“Now I am a nurse
supervisor at ICU at Duncan Regional Hospital. I wouldn’t have done
this if Ricky hadn’t pushed me and supported me.”).
221. Id.
222. Other affidavits also attest to Malone’s fatherly commitment
to these children. See Affidavit of Donna Childers, Exhibit A (noting
that Malone did various “typical ‘dad’ things” with his children” and
that “[h]e loved those kids and those kids loved him”); Affidavit of
Sally Yearicks, Exhibit U (“He was so good with the kids. Rick came to
family get-togethers and participated in the stuff the kids had at
school.”); see also Affidavit of Johnny Owens, Exhibit O (“He loved his
kids. He worked hard to take care of them.”).
223. Beth states that when the police came, Malone was “hugging
me but the police thought he was attacking me.” She also states, more
2305
credibly, “Ricky didn’t hit me[,] but he did hit the wall.” Affidavit of
Beth Malone, Exhibit C.
224. Beth notes that the guys at the fire department “were teasing
him about the fireman and me — he couldn’t get away from it. They
said rude things about me that were very cruel.” Id.
225. Id. Phil Stidham describes Beth contacting him about a week
before the crime, saying Malone “was in trouble and I needed to go
talk to him.” Affidavit of Phil Stidham, Exhibit Q. Malone had been
fired from the fire department and ambulance service, “so the other
paramedics couldn’t associate with him anymore.” Id. Stidham states,
“Since I wasn’t working as a paramedic then, I was trying to find Rick
to tell him that we still cared about him and we wanted to help him.”
Id.
226. See Affidavit of Beth Malone, Exhibit C.
227. Another co-worker/friend describes being at a beach with
Rick and Beth Malone when a Mexican man was pulled from the
water, not breathing. She states, “Rick and Beth started CPR and did it
until the ambulance got there. Rick didn’t hesitate to help that man
even though it meant mouth-to-mouth resuscitation with no protection.” See Affidavit of Cathey Lehew, Exhibit J. Such testimony would
have been a helpful counter at trial to Malone’s incident with the
Mexican man at the party.
228. Id.
229. Affidavit of Teresa D. “Reese” Marshall, Exhibit V.
230. The words of co-worker Phil Stidham are particularly powerful in this regard:
Rick and I were close and could relate to each other since we
were both raised in families that weren’t really there for us. We
both came from families that were uneducated and without high
standards or ambitions for us, but we both got out and became
something when we became paramedics. I understood that it
was a lot for Rick to escape to become even a paramedic. . . .
When I heard he was hanging out with his relatives again, I was
worried that his loyalty to his family would pull him down.
See Affidavit of Phil Stidham, Exhibit Q; see also Affidavit of Beth
Malone, Exhibit C (“Ricky wouldn’t go see his family on holidays
because of the drinking and partying. He never did that. He is the only
one in his family that graduated from high school, and he’s the only
one who started college. His twin sisters dropped out . . . in the ninth
grade.”). All three of Malone’s sisters acknowledge being addicted to
methamphetamine, although they state that since the shooting, they
have stopped using. Sturdevant testified to this at trial and admitted
she was the one who first gave Malone methamphetamine. See also
Affidavit of Katy Landrum, Exhibit B (“I was doing meth since I was
13 years-old.”); but see Affidavit of Kristy Vaughn, Exhibit G (indicating Malone and his sisters all “got hooked on meth . . . at the same
time,” when their mother died).
231. See Affidavit of Katy Landrum, Exhibit B (explaining Malone’s
role in the family, including taking care of and buying a home for their
mother, and not allowing people to pick on his sisters); Affidavit of
Kristy Vaughn, Exhibit G (noting that Malone looked out for his sisters,
helped pay for her lawyer so she could seek custody of her son, and
“worshipped the ground our mother walked on”); Affidavit of Harold
Childers, Exhibit I (grandfather) (“He was a wonderful kid. He never
had any problems and never got into trouble or anything like that.”).
The affidavit of Rick and Beth Malone’s fifteen-year-old son states that
Malone took him to football games and gymnastics, helped him with
sports, and that “[u]p until the time he went to jail, my father would
take me with him two or three days a week.” Affidavit of Ricky Brad
Malone, Exhibit D. Ricky Brad Malone also states that his father was
“always real nice to me and never hurt me,” that he was “never afraid”
of him, and that if he had been asked to testify, he “would have asked
the jury to let my father live so that I can still be with him.” Id. Malone
also offers an affidavit from his father, who admits, “I wasn’t there for
Ricky growing up because I didn’t get along with my ex-wife, Ricky’s
mother.” Affidavit of Rick Malone Senior, Exhibit E. Rick also offers
affidavits from a former pastor, coach, employer, etc., all attesting to
his positive traits as a youth and young man.
232. See, e.g., Affidavit of Calvin Townley, Exhibit H (stepfather)
(noting how Malone’s personality changed when he started using
drugs, that methamphetamine “seemed to rule Ricky’s mind,” and
that “all he could think of was making more meth and making more
money”).
233. See Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511,
146 L.Ed.2d 389 (2000); Strickland v. Washington, 466 U.S. 668, 686-87,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
234. See Brown v. State, 1997 OK CR 1, ¶15, 933 P.2d 316, 322; Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.
235. See Williams, 529 U.S. at 397-98, 120 S.Ct. at 1515; Wiggins v.
Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 2542 (2003) (“In assessing
2306
prejudice, we reweigh the evidence in aggravation against the totality
of available mitigating evidence.”).
236. Williams, 529 U.S. at 398, 120 S.Ct. at 1516.
237. See Marquez-Burrola, 2007 OK CR 14, ¶53, 57 P.3d 766 (“One
important purpose of mitigation evidence is to humanize the defendant in the eyes of the jury.”).
238. Cf. id. at ¶56, 157 P.3d at 767 (“Most of the mitigating evidence
counsel failed to present in this case . . . highlighted positive aspects of
Appellant’s character and background, but it was powerfully mitigating nonetheless.”).
239. We noted a parallel disparity in Marquez-Burrola, in which “the
State characterized Appellant as an abusive monster,” and “[t]he
defense did little to alter this picture.” Id. at ¶58, 157 P.3d at 767. In that
case too the crime itself, along with other evidence, supported this
harsh characterization. Nevertheless, we recognized on appeal, after
an evidentiary hearing in the case, that witnesses who knew the defendant in his earlier life — who were not discovered or contacted until
after the defendant’s original trial — could have offered “unique and
moving vignettes about Appellant’s good character.” Id. at ¶52, 157
P.3d at 765. We noted that these stories about the defendant “growing
up and doing good things in his rural Mexican community might well
have resonated with citizens of a rural Oklahoma county.” Id. at ¶56,
157 P.3d at 767. We find that the comparable, positive stories about
Malone that are reflected in the proffered affidavits might well have
resonated with his jury as well. In Marquez-Burrola we modified the
defendant’s sentence to life without parole, without remanding for a
resentencing. Id. at ¶62, 157 P.3d at 768. We take a more conservative
path in the current case.
240. See Wiggins, 539 U.S. at 537, 123 S.Ct. at 2543 (finding prejudice
for failure to present more complete mitigation case, noting that if jury
had known “petitioner’s excruciating life history . . . , there is a reasonable probability that at least one juror would have struck a different
balance”).
241. See Rule 3.11(B)(3)(b)(i), Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2006).
242. See 21 O.S.2001, §701.13(C)(1) (setting forth this Court’s obligation to determine, in all capital appeals, “[w]hether the sentence of
death was imposed under the influence or passion, prejudice, or any
other arbitrary factor”). Malone does not challenge the sufficiency of
the evidence to support the aggravating circumstances found by his
jury; and we find that the evidence was indeed sufficient. Hence this
portion of our mandatory sentence review is unproblematic. See 21
O.S.2001, §701.13(C)(2).
243. The prosecutor concluded:
I had asked you at the start of this case to keep in mind that
this case was about more than Rick Malone; that there was people I could not bring before you, but this case was very much
about them as well. I would like you to keep that in mind for the
next few minutes.
244. He stated,
I pray you go back there, whatever time it takes. Talk
through this case, work with each other, but come back with the
ultimate punishment. This case cries out for the death penalty.
We’ve had one travesty in this case; I pray you don’t add a second one to it.
The prosecutor’s repeated use of the word “pray” herein seems calculated to recall the idea of the jury’s “divine undertaking in upholding
and enforcing the laws of our country,” which Mrs. Green had
described and invoked in her plea that the jury “show no mercy” and
“leave the business of mercy for Malone in the hands of the Heavenly
Father, where it belongs.”
245. Malone’s brief does cite many of this Court’s cases addressing
second-stage, closing-argument prosecutorial misconduct, in support
of its claim that the prosecutor’s improper argument further necessitates the reversal of Malone’s death sentence.
246. See 21 O.S.2001, §701.13(C)(1).
247. In addition, the prosecutor’s remarks about the necessity of an
autopsy in a case like this one improperly suggest that the American
system is worthy of ridicule in some regards.
248. See Hooks v. State, 2001 OK CR 1, ¶52 & n.55, 19 P.3d 294, 316
& n.55 (noting that this Court has “repeatedly condemned” this argument and citing cases finding various versions of it improper). The
State admits in its brief that “[t]his type of argument has been repeatedly condemned by this Court.”
249. The State mocks Malone’s assertion that the challenged
remarks were egregiously improper by twice jesting that the quoted
statements “were so outrageous that no objection was made to any of
them.” Malone, on the other hand, asserts in Proposition X that the
prosecutor’s remarks were indeed outrageous and that counsel was
constitutionally ineffective for failing to object to any of them. We
agree that a large portion of the challenged prosecutorial arguments
Vol. 78 — No. 25 — 9/15/2007
were “outrageous,” to the extent that they were in clear violation of the
precedents of this Court, but decline to resolve this portion of Malone’s
Proposition X challenge as a separate ineffective assistance claim,
based upon this Court’s overall resolution of this case.
250. We have resolved Malone’s Application for Evidentiary Hearing by ruling that Claim Two is DENIED, and Claim One has been
rendered MOOT by our resolution of this case as a whole.
dence that the defendant was so utterly intoxicated at the time of the crime that his mental
powers were overcome, rendering it impossible for him to form the specific criminal intent
or special mental element of the crime.
LUMPKIN, PRESIDING JUDGE: CONCUR
IN PART/DISSENT IN PART
¶4 While I don’t fully agree with the majority’s analysis of the jury instructions, I do agree
that any error was harmless beyond a reasonable doubt. It seems that the majority’s admission that no reasonable juror could have concluded that Appellant was so utterly intoxicated at the time of the crime that his mental
powers were overcome, rendering it impossible for him form the specific criminal intent or
that he did not intend to kill the victim is tantamount to saying that even a “bare prima facie”
case was not established, in which case
Appellant would not have been entitled to the
instructions he now finds erroneous.
¶1 I concur in affirming the conviction but
dissent to reversing the sentence and remanding the case for resentencing for the following
reasons.
¶2 In Appellant’s first proposition of error, he
argues he was denied his right to a fair trial
because the jury instructions on the defense of
voluntary intoxication did not state the applicable law. Specifically, he asserts Instruction
No. 38 improperly referenced “mens rea” instead
of setting forth the specific criminal intent for
first degree murder, and that other jury instructions did not cure any error. The majority’s
reliance on Coddington v. State is misplaced as
the issue in that case was whether trial court
limitations on the testimony of the defense
expert deprived the defendant of his constitutional rights to present a defense and confront
the State’s evidence. This Court found that
even without the expert’s opinion on the effects
of cocaine intoxication, the defense raised sufficient evidence for the trial court to instruct
the jury on his defense of voluntary intoxication. Id., 2006 OK CR 34, ¶¶40-49, 142 P.3d 437,
449-451. However, the Court did not discuss
the standard of review used to determine that
the evidence was sufficient to warrant a jury
instruction. In the present case, we are concerned with the sufficiency of the jury
instructions on voluntary intoxication, not
admissibility of expert opinion.
¶3 Further, I disagree with the majority’s
need to restate the legal standard used to determine when an instruction on voluntary intoxication is warranted. Our prior case law is not
inconsistent and footnote 48 needlessly confuses the issue. Whether the standard is stated
as “sufficient evidence to raise a reasonable
doubt as to the defendant’s ability to form the
requisite criminal intent”, see Taylor v. State,
2000 OK CR 6, ¶19, 998 P.2d 1225, 1230; Crawford v. State, 1992 OK CR 62, ¶53, 840 P.2d 627,
638, or as “sufficient, prima facie evidence [ ]
which meets the legal criteria for the defense of
voluntary intoxication”, Jackson v. State, 1998
OK CR 39, ¶65, 964 P.2d 875, 892 (per curiam),
the requirement is the same.1 It is not enough
for the defense to present evidence of intoxication, the defense must present prima facie eviVol. 78 — No. 25 — 9/15/2007
¶5 As for the victim impact evidence, I agree
that the trial court erred in failing to hold a
hearing to determine the admissibility of the
evidence, pursuant to Cargle, and that trial
court and counsel alike failed in their responsibility to review the victim impact evidence and
determine its admissibility prior to the second
stage. If a hearing had been held, hopefully it
would have prevented the overly emotional
victim impact evidence from being presented.
However, I find any errors in the admission of
the victim impact testimony harmless beyond
a reasonable doubt. Evidence of Appellant’s
cold-blooded execution of Trooper Green, as
seen on the Dashcam video, when viewed in
conjunction with the evidence in aggravation
of Appellant’s prior assaults and attempts to
escape, show that no reasonable juror would
have chosen any punishment other than death.
To say that the death sentence in this case was
improperly influenced by the victim impact
evidence is to turn a blind eye to the other
legally admitted evidence. I find the majority is
overly generous in giving Appellant another
chance to find one juror who will save him
from the death penalty.
¶6 Further, I find nothing inappropriate
about references in victim impact evidence to
God and the Bible. It seems as though courts
have become overly phobic of any references to
God or the Bible. When we review the works of
great American orators and trial lawyers such
as Abraham Lincoln, William Jennings Bryan
and even the agnostic Clarence Darrow, we
find quotations from the Bible and references
to God. It is hard to determine exactly when
such comments became anathemas, but there is
certainly no basis in history for such an
2307
approach. It is interesting to note the majority
finds such references too emotional when
included in victim impact evidence or made by
the State. However, defense counsel is criticized for not being emotional enough and no
objection is raised to his closing arguments
calling on the name of God to save his client.
The majority’s standard for determining what
comments are appropriate or inappropriate
seems inconsistent.
¶7 As for the claims of ineffective assistance
of counsel, it is not the role of this Court to
dictate when the defendant and his chosen
expert witness must meet, nor is it the proper
role of this Court to find it per se unreasonable
if the meeting has not occurred prior to trial.
Each case has its own unique facts and circumstances. While it may be unreasonable in one
case for the expert to fail to meet with the
defendant before trial, in another trial it might
not be unreasonable. In this case, I do not find
it indicative of ineffective assistance of
counsel.
¶8 Further, I do not find counsel’s failure to
investigate further and present additional mitigation witnesses ineffective. Most capital
appeals include an allegation that additional
witnesses could have been called. However,
the standard of review on appeal is deficient
performance plus prejudice. Here, Appellant
has failed to show he was prejudiced by the
absence of additional mitigating witnesses.
Most of the information contained in the affidavits from family and friends attached to the
application for evidentiary hearing was presented to the jury. Appellant’s sister and wife
testified to his background, childhood, school
activities, family life, devotion to his wife,
mother and children, his good nature and character, and the fact that he was gainfully
employed first with various ambulance services as a paramedic and later as a fireman prior
to this arrest for drug possession. These same
witnesses also described Appellant’s depression and drug use stemming from his mother’s
death and his own divorce as well as his downward spiral into criminal behavior after he
began using methamphetamines. The defense
also introduced copies of Appellant’s generally
positive work evaluations from his employment with the fire department and an ambulance service. Much of Appellant’s proposed
additional mitigation evidence was cumulative
2308
to that presented to the jury. Even if trial counsel had presented all of the mitigating witnesses now proposed, there is no reasonable
probability that the outcome of the trial would
have been different. Therefore, considering all
the facts and circumstances, Appellant has
failed to show he is entitled to an evidentiary
hearing and that counsel’s second stage
performance was ineffective.
¶9 Additionally, the prosecutor’s second
stage closing argument was not improper. The
comments were based on the evidence and
inferences therefrom. The majority’s condemnation of the argument is merely another
attempt to sanitize the defendant but dehumanize the victim.
¶10 I find the death sentence in this case was
the result of the jury’s thorough consideration
and evaluation of the evidence, and that decision was not improperly influenced by victim
impact evidence or prosecutorial comments.
The facts of this case — the cold-blooded
execution of a Highway Patrolman, begging
for his life — and not the testimony of a family member, have dictated the result. For all of
the above reasons, I would affirm the
conviction and the death sentence.
1. I also disagree with the statement in footnote 48 that the test
cited in Taylor was previously rejected in Jackson. Jackson clarified the
standard setting forth the quantum of evidence required before the
jury can legally consider the defendant’s state of intoxication as a
defense. In so doing it did not overrule well established case law
regarding when the evidence was sufficient to warrant a jury instruction.
LEWIS, JUDGE, CONCUR IN PART/
DISSENT IN PART:
¶1 I concur in affirming Appellant’s conviction but dissent to reversing the death sentence.
The victim impact testimony in this case was
powerful, but it was properly admitted and
any error in its admission is harmless beyond a
reasonable doubt.
¶2 The majority correctly finds that trial
counsel rendered deficient performance in failing to investigate mitigation evidence. Considering this omitted mitigation evidence in light
of the aggravating circumstances, I see no reasonable probability of a different outcome at
trial, and thus no violation of the right to effective assistance of counsel. I would affirm the
death sentence.
Vol. 78 — No. 25 — 9/15/2007
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
Tuesday, August 21, 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.
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.
/s/
James R. Winchester
CHIEF JUSTICE
Wednesday, August 29, 2007
102,375Tarrant et al v. Capstone Oil & Gas
Co.
103,778Lewis v. ConocoPhillips et al.
103,631Wilcut v. McDaniel et al.
103,892Smith v. Smith.
103,769Storment v. Storment.
103,904Holland et al v. Heritage National
Insurance Co. et al.
103,927Organ v. Organ.
103,936Hollingsworth v. Hollingsworth.
102,953Stine Family LP v. Tulsa National
Bank et al.
103,912Chambers v. Tarkington et al.
103,922Wakeland v. Wakeland.
103,963Branson et al v. McLean et al.
104,288Sacket et al v. Great Plains Pipeline
Co. et al.
103,954Jacobson v. Jacobson.
103,971Edwards v. Smith.
104,055Triplett et al v. Miller aka Dewy.
104,454Norman Regional Hospital v. Hearold et al.
104,138City of Nowata v. Hamilton et al.
104,465Wakeland v. Wakeland.
104,592Swanson v. Swanson.
104,531In the Matter of Estate of Williams,
Deceased.
104,645City of Shawnee v. Dennie et al.
104,648In the Matter of JS & MC, Deprived
Children.
104,651Bank of Oklahoma, NA v. Red Arrow
Marina Sales & Service, Inc., et al.
104,652Gilliland et al v. Smith et al.
104,657Unit Drilling Co. v. OK Tax Comm. et
al.
Vol. 78 — No. 25 — 9/15/2007
104,677Miller v. Dept. of Public Safety.
104,718In the Matter of the Guardianship of
SM, a minor child.
104,908Ribner v. F & M Bank & Trust Co.
2309
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.
COURT this 29th day of August, 2007.
103,440Sandel v. Sandel.
/s/
James R. Winchester
CHIEF JUSTICE
103,823Silver Creek Investments et al v. Whitten Construction.
103,966Ruffin v. Burnmaster.
104,022Bird v. Bird.
Wednesday, September 5, 2007
103,834Ashton Grove et al v. The City of Norman et al.
104,229Chesapeake Operating v. Whatley et
al.
104,015City of Broken Arrow, OK v. Bass Pro
Outdoor World et al.
104,334New Dominion LLC v. C. Mike
Mason.
104,087Linders et al v. Linders et al.
104,381In the Matter of the Estate of Franks,
Deceased.
104,254Smith v. Hudson.
104,480(Cons w/104,485) Braulio M. Cuesta
& Eric L. Golden v. Ford Motor Company et al.
104,653Wright v. Eastern State Hospital et al.
104,724Nail v. Nail Masonry et al.
104,906Cornerston National Insurance Co. v.
W.P. West, Jr.
COURT this 5th day of September, 2007.
/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
2310
104,409Estate of Robert T. Stuart, Jr., Deceased
v. OTC.
104,412Strunk v. J. Brotton Corp. et al.
104,641Solitaire Holding LLC et al v. Hoosier
et al.
104,655State of Oklahoma v. Lacretia Jackson.
104,741OK Foundation for Medical Quality
v. DCS et al.
104,813Lacy v. Hackney et al.
104,821Buchanan v. Board of Co. Comm of
Muskogee Co. et al.
104,846Johnson v. Hull.
104,880Johnson v. OK Secondary School
Activities Association et al.
/s/
James R. Winchester
CHIEF JUSTICE
Vol. 78 — No. 25 — 9/15/2007
104,024Tracy Tarrant dba Tarrant Oil v. Guthrie First Capital Bank et al.
104,029Williams et al v. Williams et al.
104,719Elder v. Oklahoma City Public
Schools, et al.
104,909Hill et al v. Discover Bank.
104,599Eubanks v. Anderson
104,610Weatherford International et al v. Williams et al.
COURT this 5th day of September, 2007.
104,064Duncan v. Duncan.
104,159Durham v. Whelchel-Pearson.
104,344In the Matter of the Estate of Henry,
Deceased.
104,414Estate of Asa Leroy Egelston.
/s/
James R. Winchester
CHIEF JUSTICE
104,633In the Matter of EM, JPM & PM. Children under 18 years of age.
104,697Choctaw Express v. Poole et al.
104,894Estate of Ella Yvonne Holladay.
104,914Welch et al v. Crow et al.
COURT this 29th day of August, 2007.
/s/
James R. Winchester
CHIEF JUSTICE
FLEMING AND GANDALL, PLLC,
Certified Public Accountants, Plaintiff/
Appellee, v. TOWN OF CASHION,
OKLAHOMA, Defendant/Appellant.
No. 103,561. February 9, 2007
APPEAL FROM THE DISTRICT COURT OF
KINGFISHER COUNTY, OKLAHOMA
HONORABLE RONALD G. FRANKLIN,
JUDGE
AFFIRMED
Ashley D. Williams, Norman, Oklahoma, for
Plaintiff/Appellee,
David A. Davis, Oklahoma City, Oklahoma, for
Defendant/Appellant.
Opinion by Kenneth L. Buettner, Judge:
103,872In Re the Marriage of Ransom v. Ransom.
103,897Garretson v. Garretson.
103,906Barker fka Ransom v. Ransom.
103,960Richardson v. Richardson.
104,084S & S Properties v. Dept. of Transportation.
104,690Ponca Iron & Metal v. Wilkinson &
WCC.
Vol. 78 — No. 25 — 9/15/2007
2007 OK CIV APP 74
¶1 Fleming and Gandall, PLLC, Certified
Public Accountants, Plaintiff/Appellee (Fleming), sued the Town of Cashion, Oklahoma,
Defendant/Appellant, for breach of contract
alleging Fleming agreed to prepare Town’s
financial statements for fiscal year 2003 in July
2004, but that when the report was furnished
with an invoice to the Town Board in October
2004, it failed to pay the contract price, $11,305,
reflecting hours of work at $95 per hour. Town
responded and subsequently filed a Motion for
Summary Judgment. It alleged that Art. 10 §26
of the Oklahoma Constitution excused Town
from paying the contract. It alleged that the
contract and resulting debt violated §26; that
2311
funds were never appropriated or encumbered;
and that Town did not have funds on hand to
pay the debt. Fleming countered in its motion
for summary judgment, that, inter alia, there
were sufficient funds for payment both on the
date of contracting and on the payment due
date. Consequently there was no debt. There
being admissible evidence to support Fleming’s argument, we affirm the grant of summary judgment in its favor.
¶2 The gravamen of the parties’ arguments
are competing constitutional positions. Town
claims the protection of Art. 10 §26, which
states in part:
(a) Except as herein otherwise provided, no
county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to
become indebted, in any manner, or for
any purpose, to an amount exceeding, in
any year, the income and revenue provided
for such year, without the assent of threefifths of the voters thereof, voting at an
election, to be held for that purpose, nor, in
cases requiring such assent, shall any
indebtedness be allowed to be incurred to
an amount, including existing indebtedness, in the aggregate exceeding five percent (5%) of the valuation of the taxable
property therein, to be ascertained from the
last assessment for state and county purposes previous to the incurring of such
indebtedness: ....
¶3 Town does not deny its contract with
Fleming to perform the financial service, but
because it did not appropriate funds to pay for
performance of the contract, Town claims it is
prohibited by §26 from paying a void contract.
It relies on such cases as O’Neil Engineering Co.
v. Incorporated Town of Ryan, 1912 OK 398, 124 P.
19, and Flood v. Town of Shidler, 1927 OK 359,
260 P. 52 (“The intention and plain purpose of
section 26, art. 10, of the Constitution, is to
require municipalities to carry on their corporate operations upon the cash or pay as you go
plan. The revenues of each year must take care
of the expenditures of such year; and any liability sought to be incurred by contract, express
or implied, executed or executory in excess of
such current revenue in hand, or legally levied,
is void, unless it be authorized by a vote of the
people, and within the limitations therein provided.” Syllabus by the court, paragraph 2).
2312
¶4 By way of evidence, Town submitted the
affidavit of its Clerk/Treasurer who stated that
Town did not appropriate any funds for the
accounting/auditing services by Fleming and
further stated that no agreement for Fleming’s
services was approved by Town nor were
funds encumbered to pay Fleming. The Clerk/
Treasurer further averred that no unappropriated or unencumbered funds existed to pay
debts incurred during fiscal years 2002/2003,
2003/2004 and 2004/2005. The Clerk/Treasurer also stated that the indebtedness to Fleming
was incurred between July and October 2004
and for that fiscal year no funds remained for
payment of debts. Finally, the Clerk/Treasurer
testified that the profit and loss statement
attached to her affidavit for fiscal year
2004/2005 was true and correct. (It showed a
total expense of negative $67,234.09 and a net
income of $61,660.37.) Town’s manager also
filed an affidavit which stated facts in a similar
vein.
¶5 Fleming filed a Counter Motion for Summary Judgment. In its statement of undisputed
facts, Fleming states that a contract for its services existed with Town, citing Town’s Brief in
Support of Town’s Motion for Summary Judgment. (“Funds were never appropriated nor
encumbered by Cashion for any payment on
the contract, ....” “No funds were appropriated,
encumbered, or available to pay the contractual debt to Fleming....”.) It also states that an
invoice for services was faxed to Town September 14, 2004 and presented for payment at the
October 4, 2004 Board meeting. Exh. 2 of
Fleming’s Motion to Strike.
¶6 At paragraphs 6, 7, and 11, Fleming
states:
6. On October 4, 2004, the Town of Cashion
had $29,745.58 to pay for the contracted
services. See Plaintiff’s exhibit 11, The Combined General Ledger for the Town of
Cashion for FY 2005. The available cash
balances as of October 4, 2004, were as follows: General Fund checking $774.77, Id.,
at 3; Emergency Services Checking $411.59,
Id., at 12; General Fund Savings at
$11,177.19, Id. at 16; Cashion Economic
Development Authority at $14,453.77 Id. at
___; and Police Department Grant $2,718,
Id. at 17.
7. On October 4, 2004, the Cashion Public
Works Authority had $10,785.47 available
to pay for the contracted services. See
Vol. 78 — No. 25 — 9/15/2007
Plaintiff’s exhibit 12, The Cashion Public
Works Authority General Ledger for FY
2005. The available fund balances as of
October 4, 2004 were as follows: Oklahoma
Public Finance Authority at $3500, Id. at 1;
Utility Fund Savings at $7,285.47, Id. at 12.
11. As of June 30, 2005 Cashion had Net
Income available to cover the contract
between Fleming and Cashion. See Defendants Profit and Loss Statement attached to
their Motion for Summary Judgment. Other
Income/Expense, showing transfers into
the General Fund, Streets and Alley Fund,
and Emergency Services Fund from the
Utility fund for a Total Other Income
amount of $128,894.96 for a Net Income for
the year of $61,660.37.
¶7 As a matter of law, Fleming argued that
Town had a constitutional mandate to have all
money it collected by taxation or otherwise, to
be accounted and audited.1 It further stated
that this constitutional mandate was not selfexecuting, but that two statutes exist which
apply the mandate: 74 O.S. 2001 §212A and 11
O.S. 2001 §17-105. Title 74 provides that all
governmental entities shall have an audit in
compliance with generally accepted auditing
standards and that the expense shall be borne
by the governmental entity.2 Title 11 applies
specifically to municipalities.3 It requires governing bodies of municipalities which have a
certain minimum budget to have an annual
audit by an auditor who is an independent
licensed or a certified public accountant.
¶8 Town’s bedrock reply was that no funds
were appropriated. Therefore, no funds were
available.
¶9 In their motions for summary judgment,
the parties posed to the trial court competing
constitutional provisions. The trial court, in
granting summary judgment in favor of Fleming found that there was no material dispute
with respect to the fact that Town hired Fleming to organize and prepare the financial statements for the year 2003 in July 2004 and that
the work was completed in September 2004.
Town did not object to the amount charged.
Further, there was no dispute with respect to
the fact that Fleming billed Town and Town
has not paid the amount due. The trial court
held as a matter of law that Article 10 §26 of the
Oklahoma Constitution does not render the
agreement void and found it was authorized
by 11 O.S. 17-105 and 74 O.S. 212A.
Vol. 78 — No. 25 — 9/15/2007
¶10 “Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate
decision turns on purely legal determinations,
i.e. whether one party is entitled to judgment
as a matter of law because there are no material disputed factual questions. Therefore, as
the decision involves purely legal determinations, the appellate standard of review of a trial
court’s grant of summary judgment is de novo.”
Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d
1051, 1053. “The ruling on a motion for summary judgment must be rested on the record
which is then before the court rather than on
one that could have been assembled. Similarly,
the reviewing court is always limited to the
issues actually presented below, as reflected by
the record.” Frey v. Independence Fire and Casualty Company, 1985 OK 25, ¶ 6, 698 P.2d 17, 20.
However, “[w]hen, as here, legal relief clearly
is affordable upon alternative grounds, consideration of constitutional challenges is inappropriate in light of our self-erected ‘prudential
bar’ of restraint. Constitutional questions
should not be reached in advance of strict
necessity.” Russell v. Board of County Commissioners, Carter County, State of Oklahoma, 1997
OK 80, ¶32, 952 P.2d 492, 504.
¶11 In the case at bar, the question was fairly
presented to the trial court, as well as to this
court, whether a debt was incurred. The Oklahoma Supreme Court has “... recognized that:
1) a debt is a promise to pay a certain amount,
with interest, within a fixed time, out of taxes
taken from all of the people, including those
not benefitted; and 2) a city creates an indebtedness when it borrows money to be paid, with
interest, from taxes in the future, whether such
taxes are formally levied at one time, covering
that future, or yearly, to meet the payments
when about to mature.” Southern Corrections
Systems, Inc. v. Union City Public Schools, 2002
OK 93, ¶ 22, 64 P.3d 1083, 1090.4 Not every contract entered into by a municipality qualifies as
a §26 debt. Contracting with Fleming, especially when the funds are shown to be available
to pay for the services rendered, does not
qualify as a §26 debt. Therefore, we need not
balance Oklahoma Constitution Art. 10 §26
with §30.
¶12 We hold there was no debt and that summary judgment was properly granted in favor
of Plaintiff/Appellee Fleming and Gandall,
PLLC.
2313
the record on appeal and applicable law, we
affirm.
AFFIRMED.
HANSEN, P.J., and BELL, J., concur.
1. Okla. Const. Art. 10, §30: The Legislature shall require all money
collected by taxation, or by fees, fines, and public charges of every
kind, to be accounted for by a system of accounting that shall be uniform for each class of accounts, State and local, which shall be prescribed and audited by authority of the State.
2. 74 O.S. 2001 §212A: Audits of government entities
A. 1. All government entities, as defined by the Governmental
Accounting Standards Board, shall have an audit in accordance with
generally accepted auditing standards and Government Auditing
Standards. Copies of any audit performed by a person other than the
State Auditor shall be filed with the State Auditor and Inspector by
that person. The expense of the audit shall be paid by the government
entity.... (2005 amendment did not affect this part.)
3. 11 O.S. 2001 §17-105: Annual audit of books and accounts
The governing body of each municipality with an income of
Twenty-five Thousand Dollars ($25,000.00) or more to its general fund
during a fiscal year shall cause to be prepared, by an independent
licensed public accountant or a certified public accountant, an annual
financial audit to be conducted in accordance with the generally
accepted auditing standards and the “Government Auditing Standards” as issued by the Comptroller General of the United States.....
(The 2005 amendments to this statute do not affect this part.)
4. Town also relied on Haskins & Sells v. Oklahoma City, 1912 OK
362, 126 P. 204, which also dealt with accounting services. The Court
held the contract was void because it exceeded an 80% limit found in
Section 478. Wilson’s Rev. & Ann. St. 1903. We find this quote instructive: “And if this work had been completed by June 30th, and the
money to pay for the same had been on hand in the proper funds, we
cannot believe but that plaintiff would have demanded its pay; nor do
we hold, under such circumstances, considering the terms of the agreement, the funds on hand not being necessary to meet previous outstanding indebtedness, that the city could have escaped liability out of
that year’s funds. Hence we must construe the contract as an entirety
and hold that the amount due thereon was incurred at the time it was
entered into.” Id. at ¶ 5, pp. 207-208.
2007 OK CIV APP 75
IN THE MATTER OF THE
GUARDIANSHIP OF J.J.H., an alleged
deprived child. JOIE LYNN BART and
STEPHAN EUGENE BART, Petitioners/
Appellees, v. BOBBY HAMBY, Respondent/
Appellant.
No. 103,287. July 27, 2007
CARTER COUNTY, OKLAHOMA
HONORABLE LEE CARD, TRIAL JUDGE
AFFIRMED
James I. English, III, Ardmore, Oklahoma, for
Petitioners/Appellees,
Darryl F. Roberts, Ardmore, Oklahoma and R.
Scott Adams, ADAMS & ASSOCIATES, P.C.,
Oklahoma City, Oklahoma, for Respondent/
Appellant.
JOHN F. FISCHER, PRESIDING JUDGE:
¶1 Appellant Bobby Hamby appeals from
the Trial Court’s order granting general guardianship of his daughter JJH to the Appellees
Joie and Stephan Bart. Based on our review of
2314
BACKGROUND FACTS
¶2 In this appeal, Hamby raises two issues:
(1) the decision of the Trial Court was against
the clear weight of the evidence and (2) the
evidence is insufficient to support the finding
that he is “unfit” to parent JJH.1 Because Hamby
challenges the evidentiary basis for the Trial
Court’s decision, a detailed review of the
record is necessary.
¶3 On January 23, 2004, JJH was born to Ashley Williams. The child’s birth certificate lists
Hamby as the father and it does not appear
disputed that he is the child’s natural father.
Williams and Hamby have one other child
together but have never been married during
their five-year relationship.2
¶4 Although JJH is the couple’s second child
together, the parental rights of both Williams
and Hamby to their first child were terminated
in February 2004. The record in that case,
which was considered by the Trial Court,
showed that the child was hospitalized after
his premature birth with a serious illness and,
during the six or seven months that he was in
the hospital, Hamby visited twice and telephoned once.3 Hamby testified that he voluntarily gave up his parental rights to the couple’s
first child because he “needed some help [himself] at the time” due to his drug dependency
and because the child was sick and required
expensive medical care that he could not afford.
The Trial Court challenged the credibility of
this testimony, describing that explanation as
misleading. According to the Trial Court, it was
more accurate that Hamby “fought it down to
the wire” and, after obtaining two or three continuances, only relinquished his parental rights
just before the jury trial was scheduled to
begin.
¶5 When Hamby relinquished his parental
rights to the couple’s first child, he was on probation serving a five-year sentence for Possession of a Controlled Substance. His sentence is
scheduled to be discharged in 2008. It appears
that the District Attorney moved to revoke
Hamby’s probation in November 2003, which
resulted in, or coincided with, Hamby entering
the Clean Start drug rehabilitation program.
Hamby was still on probation at the time of
these proceedings.
Vol. 78 — No. 25 — 9/15/2007
¶6 Prior to the birth of JJH, Williams voluntarily entered a drug rehabilitation program at
Monarch Rehabilitation Center. During the
seven months Williams was at Monarch,
Hamby visited her approximately every Sunday, according to Williams, “When he could.”
After Williams completed the program at Monarch, Hamby continued to see her and JJH
approximately every other weekend. Most or
all of these visits occurred at Hamby’s home in
Wellston. For a few months after JJH was born,
when Williams needed money, Hamby gave
her $50 a week. He stopped giving her money
because he thought it was no longer beneficial.
Hamby did not otherwise contribute to JJH’s
support until ordered to do so by the Trial
Court in this proceeding.
¶7 Hamby and Williams were no longer living together and had ended their relationship
by the time these proceedings began. On September 2, 2005, Williams brought JJH to visit
her sister Joie Bart in Ardmore, Oklahoma. Following the visit, Williams left JJH in Bart’s care
with the intention of returning the next day.
Three days later, Williams telephoned Bart and
asked her to keep JJH for a few more days.
Several days later, Williams met with Bart and
agreed that JJH would be better off if cared for
by Bart and her husband and left the child in
their custody.
¶8 After learning that JJH was with the Barts,
Hamby drove to Ardmore on September 15,
2005. The record contains conflicting evidence
as to whether Hamby intended to retrieve JJH
or was simply going to visit. When he arrived
at the Bart residence, a police officer and a representative from the Department of Human
Services (DHS) met him. DHS worker Lyndsi
Vaile informed Hamby that he would have to
leave JJH in the custody of either DHS or the
Barts, pending an investigation of the child’s
welfare. Hamby agreed to leave JJH with the
Barts and signed a document to that effect.
¶9 On October 26, 2005, the Barts filed a petition for general guardianship of JJH pursuant
to the Oklahoma Guardianship and Conservatorship Act, 30 O.S. Supp. 2004 §§ 1-101 through
4-903. The Trial Court set the matter for hearing on November 9, 2005. On November 8,
2005, counsel for Hamby requested, and was
granted a continuance of the hearing. The hearing was reset for January 5, 2006. On the day of
that hearing, Hamby filed a petition for writ of
habeas corpus seeking custody of JJH. By Journal Entry dated January 18, 2006, the Trial
Vol. 78 — No. 25 — 9/15/2007
Court granted temporary custody of JJH to the
Barts, denied Hamby’s petition for writ of
habeas corpus, granted Hamby custodial visitation, ordered him to pay child support and
set the matter for trial.
¶10 The Trial Court conducted a non-jury
trial on February 13, 2006, and received additional evidence on March 29, 2006, prior to the
pronouncement of its decision. The following
evidence appears of record.
¶11 Williams and Bart testified that Hamby
was still regularly using illegal drugs. Williams
testified that she and Hamby used drugs
together during the summer of 2005 and as late
as August 2005. She further testified that she
had witnessed Hamby using drugs as recently
as the week before the trial in February 2006.
¶12 Hamby admitted that he had previously
been addicted to drugs but testified that he had
been “clean and sober” since November 2003.
Hamby submitted nineteen voluntary and
involuntary, random and scheduled narcotics
tests taken between December 2003 and March
2006. Every test Hamby submitted reflects a
negative test result. The involuntary tests were
part of Hamby’s probation, covering the period
from December 2003 through May 2004. The
other tests were voluntarily taken by Hamby at
a clinic in Oklahoma City approximately 35
miles from his home in Wellston. The voluntary tests cover the time period from November 21, 2005, through March 23, 2006. No tests
were provided for the June through August
2005 time period during which Williams testified she and Hamby were using drugs together.
However, Hamby did provide a February 6,
2006, test in response to Williams’s testimony
that she had seen him using drugs about one
week before the February 13 hearing. Hamby
not only denies any current drug use but also
contends that Williams’s testimony is not credible because she admitted on cross-examination that she lied about her own drug use in an
effort to convince DHS to place JJH with Bart.
¶13 Hamby testified that since the order of
January 18, 2006, he had overnight visits with
JJH pursuant to the visitation schedule established by the Trial Court. He further testified
that he had made all child support payments
due to his former wife concerning his teenage
children. Hamby and his mother also testified
that his home in Wellston was clean, and that
she was available to take care of JJH while
Hamby was working, despite the fact that,
2315
occasionally he would be gone for several days
at a time.
¶14 Hamby denied Williams’s testimony that
another woman and her two children were living with him in Wellston. He explained that, on
occasion, she would spend a day or two at his
home with her children and that she was in the
home the week prior to trial when Williams
arrived at his house at two or three in the
morning.
¶15 Bart testified that, during the first four
months in which she had custody of JJH,
Hamby visited the child on three occasions for
about one hour each time. During these visits
he did not change a diaper or ask to take JJH
for a visit to his home in Wellston. Bart testified
that on one occasion prior to September 2005,
Hamby left Williams and JJH on the side of the
road and on other occasions refused to help
them when they were in need of help. She also
testified that there had been incidences of
domestic abuse for which Hamby had been
“red flagged” by DHS. Williams confirmed the
domestic abuse in her testimony and Hamby
did not dispute this testimony.
¶16 Lyndsi Vaile, the DHS social worker
assigned to this case, testified that she first met
Hamby on September 15, 2005, at the Barts’
home in Ardmore. Vaile testified that Hamby
agreed to leave JJH with the Barts until DHS
completed its investigation because he said
that he was not responsible enough to care for
JJH at the time. Vaile did not recall hearing
from Hamby after September 15, although she
did recall being contacted by a lawyer representing him. Vaile completed her investigation
and determined that JJH was safe with the
Barts and sent a copy of her investigation to
Hamby. Her report also contained an investigation from a Lincoln County social worker
who found that Hamby’s home was in good
condition. Vaile recommended that Hamby
prove he could provide a stable home for JJH
before moving the child from the Barts’ home.
¶17 At the conclusion of trial on March 26,
2006, the Trial Court found that Hamby was
unfit to parent JJH and granted the Barts’ petition, appointing them as general guardians for
the child and granting Hamby custodial visitation. Hamby appeals that portion of the Trial
Court’s order granting guardianship.
2316
STANDARD OF REVIEW
¶18 In appointing guardians, courts are vested with sound legal discretion and their judgments will not be overturned absent an abuse
of discretion. Brigman v. Cheney, 1910 OK 316,
112 P. 993, syl. 1. Abuse of discretion occurs
“when a court bases its decision on an erroneous conclusion of law or where there is no
rational basis in evidence for the ruling.” Christian v. Gray, 2003 OK 10, ¶43, 65 P.3d 591, 608.
DISCUSSION
¶19 Hamby argues that 10 O.S. Supp. 2004
§21.1 is controlling, and that, pursuant to subsection D, the Trial Court was required to find
that he was an alcohol or drug dependent person who could be expected to seriously harm
himself or others. He contends that the Trial
Court made no such finding and that there is
an absence of evidence in the record on which
the Trial Court could have made a finding that
he was unfit. Hamby concludes, therefore, that
“none of the [section 21.1(D)] standards would
disqualify [him] from having the custody of his
daughter.” This argument is misdirected for
three reasons: (1) custody is not an issue in this
appeal; (2) section 21.1 is not controlling; and
(3) a finding of unfitness is not required.4
I. Custody
¶20 While this case involves the competing
claims of custodial relatives and the non-custodial father, custody is not an issue in this
appeal. Hamby did not appeal the January 18,
2006, Journal Entry denying his petition for
habeas corpus in which he sought to obtain
custody of JJH. Further, because the time to
appeal that decision has passed, the Trial
Court’s ruling on the matter is now final. See
Okla. Sup. Ct. R. 1.21, 12 O.S. Supp. 2006, ch.
15, app. 1. Also, Hamby did not list the Trial
Court’s ruling on custody as one of the issues
to be reviewed on appeal in his petition in
error.
¶21 When JJH was born, Williams and
Hamby were not married. Consequently, Williams had sole custody of the child. See 10 O.
S.2001 §6 (“Except as otherwise provided by
law, the mother of an unmarried minor child
born out of wedlock is entitled to the care, custody, services and earnings and control of such
minor”). See also State v. Johnson, 1988 OK CR
273, ¶9, 765 P.2d 1226, 1228.
¶22 Joie Bart, however, had custody of JJH
when these proceedings began. Pursuant to 10
Vol. 78 — No. 25 — 9/15/2007
O.S.2001 §21.4(B)(3), Williams relinquished
custody of JJH to Bart by abandoning the child.
Joie Bart, “an adult relative related to the child
within the third degree,” is a person authorized by law to accept custody of a minor from
his or her parent. 10 O.S.2001 § 21.3. Bart
acquired custody of JJH in September 2005 “by
operation of law.” 10 O.S.2001 §21.3(B)(3).
Hamby took no action to acquire custody of
JJH prior to filing his January 2006 petition for
writ of habeas corpus in this case. As previously discussed, the Trial Court denied his
petition and Hamby has neither appealed that
decision nor included the issue of custody in
his petition in error.
II. The Controlling Statute and Unfitness
¶23 Because Joie Bart had custody of JJH, it
was not necessary for her to seek to establish
custody in this action. Consequently, she merely sought guardianship of JJH. Guardianship
and custody are separate matters. See Ex parte
Fortune, 1936 OK 46, ¶ 0, 53 P.2d 1100 (Syllabus
2)(holding that, in the trial of a habeas corpus
proceeding instituted by a guardian to obtain
custody of his ward, issuance of the guardianship letters did not constitute an adjudication
of the right to custody and was not conclusive
on the question of custody). See also
Application of Boyd, 1954 OK 235, 274 P.2d 399.
A guardian:
is vested with the legal capacity to act for
and in behalf of the minor in providing for
the minor’s care and support and in administering the minor’s estate. A guardian
does not stand in the place of the parents to
the exclusion of the parents’ natural rights,
privileges and obligations.
Wilkerson v. Davila, 1960 OK 63, ¶ 30, 251 P.2d
311, 315. A guardian is a person appointed by
the court to take care of the person or property
of another, 30 O.S.2001 § 1-105, and has only
those powers granted by the court. 30 O.S.2001
§ 1-119. The order appointing guardians in this
case makes no provision for custody.5 Consequently, we are not concerned with the procedure in 10 O.S. Supp. 2004 § 21.5 for the award
of permanent custody to an adult relative
guardian.
¶24 The Barts proceeded pursuant to the
Guardianship Act, the authority cited in their
petition. Specifically, they relied on section 2101 of the Guardianship Act, which authorized
the Trial Court to appoint a guardian for JJH
“when it appears necessary or convenient.”
Vol. 78 — No. 25 — 9/15/2007
That act, not section 21.1 of title 10 as Hamby
argues, is the controlling statutory authority.
¶25 The meaning of the “necessary or convenient” language of the Guardianship Act has
been the subject of substantial litigation, most
often involving cases in which the guardianship and custody issues were not distinguished
and the issue before the court was whether to
terminate rather than establish a guardianship.
For example, one of the leading cases in this
area involved a proceeding to terminate the
guardianship of a minor pursuant to 30 O.
S.1991 § 4-804, by the child’s natural father. In
re M.R.S., 1998 OK 38, 960 P.2d 357. The guardianship had been established when the father
and sole custodian of the child agreed to the
guardianship because he was single at the
time, on call by his employer twenty-four
hours a day and seven days a week and, therefore, unable to care for the child. The order
appointing the guardians specifically found
that the father was not unfit. Id. at ¶ 3, 960 P.2d
at 359.
¶26 After the father remarried, he moved to
terminate the guardianship on the basis that it
was no longer necessary because the conditions that gave rise to the need for the guardianship no longer existed. The trial court dealt
with the matter as if it were a proceeding to
modify a custody order in a divorce proceeding requiring the father to show a substantial
and material change in circumstances. The
Oklahoma Supreme Court reversed, based on a
long line of well-established authority, reaffirming that the proper test for termination of
the guardianship of a minor is whether (1) the
impediments that led to the guardianship have
been removed and (2) termination of the guardianship would not be inimical to the welfare of
the child. Id. at ¶ 26, 960 P.2d at 364-65.6
¶27 More recently, the Oklahoma Supreme
Court reversed the termination of a guardianship finding that the mother had failed to
prove the impediments that led to the guardianship no longer existed. See In re Guardianship
of A.G.S., 2003 OK 1, 65 P.3d 587. In A.G.S., the
mother arranged the guardianship because she
had been informed by the District Attorney
that she would be prosecuted as an accomplice
in the murder of her other child and incarcerated if convicted. When the prosecution did
not materialize, the mother moved to terminate the guardianship. She had not been found
“unfit” by the court that had established the
guardianship, and the court hearing her peti-
2317
tion to terminate the guardianship specifically
found that there was no evidence to show that
she was unfit at the time of the termination
proceeding. Id. at ¶ 12, 65 P.3d at 589. Nonetheless, various factors, including the continuation of a violent home environment in which
the child would be raised, established that the
mother had failed to meet her burden of proving that she had removed the impediments on
which the guardianship had originally been
established. Id. at ¶ 20, 65 P.3d at 590-91.
¶28 From these cases, it is clear that the “necessary or convenient” standard of section 2-101
does not require proof of parental unfitness
before a guardianship may be established.
Establishment of a guardianship is a temporary determination and appointment of the
person who will be responsible for the care of a
child and may legally act on behalf of the child.
M.R.S., 1998 OK 38 at ¶ 9, 960 P.2d at 360. Termination of a guardianship over a child may be
sought by a parent at any time. On proof that
the impediments justifying the guardianship
no longer exist and absent proof that termination would be inimical to the welfare of the
child, a parent is entitled to have the guardianship terminated. 30 O.S.2001 § 4-804; A.G.S.,
2003 OK 1 at ¶ 13, 65 P.3d at 589 (citing M.R.S.,
1998 OK 38, ¶ 26, 960 P.2d 357, 364). Consequently, termination of a guardianship necessarily involves consideration of a parent’s fitness because ending the guardianship is not
permitted if it would be inimical to the welfare
of the child. Neither the guardianship statute
nor previous Supreme Court decisions imposes
this same requirement on the establishment of
a guardianship.
¶29 When custody is not at issue, the factors
to be considered when establishing a guardianship are those that show the guardianship is
“necessary or convenient.” For example, a single parent leaving the country for an extended
period of time may choose to establish a guardianship for his or her minor children who will
remain in this country because it is “necessary
or convenient” to have someone to care and act
for the children in the parent’s absence. Under
those circumstances, that choice may evidence
parental responsibility rather than parental
unfitness. We find nothing in either the language of the statute or any test established by
the Oklahoma Supreme Court that, under the
circumstances of this case, would have required
the Barts to prove Hamby’s parental unfitness
2318
prior to the establishment of the guardianship.7
¶30 Even though proof of parental unfitness
is not required, there are three other considerations that direct a trial court’s determination
of when a guardianship is “necessary or convenient.” First, section 1-112(C) of the Guardianship Act provides that it “shall not be construed
to limit the parental rights of parents as the
natural guardians of their children.” With
respect to a child whose mother and father
were not married when the child was born, the
common law provides that the mother is the
natural guardian. 1 William Blackstone, Commentaries *460 n.4. Oklahoma law reflects this
common law principle. See 10 O.S.2001 § 6.8
Consequently, Hamby is not the natural guardian of JJH. Although he may establish rights to
the services, earnings and control of JJH in the
future, he had not done so at the time of these
proceedings. Appointment of the Barts as
guardians for JJH in this proceeding is consistent with section 1-112(C). The purpose of the
Guardianship Act is to establish a system of
guardianship for minors that provides for the
protection of their rights. Children have a fundamental constitutional right to a “wholesome
environment” equal to the constitutional rights
of parents. In re T.H.L., 1981 OK 103, ¶13, 636
P.2d 330, 334.
¶31 Second, in appointing a guardian the
court is to be “guided by” 10 O.S.2001 §21.1.
See 30 O.S.2001 §2-103. Therefore, although section 21.1 is clearly relevant to the appointment
of a guardian, it is not, as Hamby argues, the
controlling statute.9 Section 21.1(A) provides
the preference order for awarding custody or
appointing guardians providing, as relevant to
this case, that the parents are first and relatives
of the parents are next. While the court is to be
guided by the statute’s preference order, section 2-103 does not mechanically impose this
order on the guardianship process or remove
the court’s discretion in appointing guardians.
On this point, we find persuasive the decision
in Smith v. Neher, 1992 OK CIV APP 97, 837 P.2d
929, 931 (rejecting the argument that the preference order in section 21.1 is “absolute”).
¶32 Third, section 2-106 of the Guardianship
Act provides that a parent who petitions for
guardianship, unless “otherwise unsuitable or
disqualified,” is entitled to guardianship of his
or her minor children. Section 2-106 is not
applicable because the petition before the Trial
Court in this case was filed by the Barts.
Vol. 78 — No. 25 — 9/15/2007
Hamby has not sought to be appointed as
guardian for JJH.10
¶33 Consequently, in the context of this case
in which a noncustodial parent sought to prohibit a custodial relative from being appointed
guardian, the issue to be determined by the
Trial Court was whether appointment of the
Barts was “necessary or convenient.” The burden of proof, as in other civil matters, was on
the Barts to establish that proposition. Standard
Marine Ins. Co. v. Traders’ Compress Co., 1915 OK
284, ¶8, 148 P. 1019. Because neither termination of parental rights nor transfer of custody is
at issue, we do not find that the “clear and convincing” level of proof required in those cases
is applicable. See In re C.G., 1981 OK 131, ¶19,
637 P.2d 66, 71-72 (termination of parental
rights); M.R.S., 1998 OK 38 at ¶12, 60 P.2d at
781 (transfer of custody). The order appointing
guardians in this case does not determine,
much less terminate, Hamby’s parental rights;
it does not deprive him of custody and it does
not preclude a subsequent order terminating
the guardianship “when no longer necessary.”
30 O.S.2001 § 4-804.
CONCLUSION
¶34 Having reviewed the record, we do not
find that the Trial Court abused its discretion
by granting the Barts’ petition to appoint them
general guardians of JJH. Accordingly, we
affirm the order of the Trial Court.
¶35 AFFIRMED.
WISEMAN, J., concurs, and RAPP, C.J., dissents.
RAPP, C.J., dissenting:
¶1 I dissent. I note that the Majority opinion
disagrees with In re Guardianship of H.D.B.,
2001 OK CIV APP 147, 38 P.3d 252. However,
the present appeal is not a matter of guardianship termination. Next, and of paramount
import, it fails to recognize that the key factor
in cases dealing with children is — what is in
the child’s best interest. As pointed out in In re
Guardianship of H.D.B.:
The best interests of the child test in AngloAmerican legal systems considers a number of factors: (1) the desires of the child; (2)
the emotional and physical need of the
child now and in the future; (3) the emotional and physical danger to the child now
and in the future; (4) the parental abilities
of the individuals seeking custody; (5) the
Vol. 78 — No. 25 — 9/15/2007
programs available to assist these individuals to promote the best interest of the
child; (6) the plans for the child by these
individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions
of the parent which may indicate that the
existing parent-child relationship is not a
proper one; and (9) any excuse for the acts
or omissions of the parent. Yavapai-Apache
Tribe v. Mejia, 906 S.W.2d 152, 168 (Tex. Ct.
App. 1995). Moreover, in this vein, the
Oklahoma Supreme Court, construing 58
O.S.1971, §876, now codified as 30 O.S.1991,
4-804, [sic] cited above, has ruled that
parental fitness and a child’s best interests
are elements to be established before a
minor’s guardianship is terminated as no
longer being necessary. In re Guardianship of
Hatfield, 1972 OK 10, ¶8, 493 P.2d 819, 821.
In re Guardianship of H.D.B., 2001 OK CIV
APP 147at ¶ 15, 38 P.3d at 256.
¶2 This does not appear to have been done
here. Accordingly, I would reverse and
remand.
1. In his petition in error, Hamby listed three other issues to be
raised on appeal: (1) “Denial of the Respondent Bobby Hamby’s constitutional right of confrontation;” (2) “Failure of proof upon which the
Petition of Guardianship of Minor was commenced;” and (3) “Commencement of proceedings without notice to the father.” Because
Hamby did not present any argument or authority regarding these
three issues in his brief on appeal, we do not address them. See In re
A.A.C.P., 2006 OK CIV APP 32, ¶ 4, 132 P.3d 644, 646 (“Only those
allegations of error urged in the briefs will be addressed, the remainder
being deemed waived”).
2. Hamby has two other children from a previous marriage.
3. The court in that case adjudicated the child deprived on April 18,
2003, and issued a dispositional plan, ordering both parents to seek
drug counseling and anger management. After both parents were
unresponsive to the dispositional plan, the court set the case for trial
for the termination of both parents’ parental rights on its March 2004
docket. Hamby relinquished his parental rights to the child on February 5, 2004.
4. Although we conclude that the Trial Court was not required to
find that Hamby was unfit in order to grant the Barts’ guardianship
petition, we have no difficulty concluding from this record that the
Trial Court’s finding of Hamby’s unfitness was not against the clear
weight of the evidence.
5. These authorities also establish that it was not necessary that
Stephan Bart had custody of JJH to be appointed her guardian because
guardianship and custody are separate matters. Consequently, Stephan
Bart may be appointed as a guardian for JJH even though Joie Bart is
the child’s sole custodian.
6. Much of the M.R.S. opinion discusses the applicable test for
depriving a parent of custody of a child, which requires proof that the
parent is unfit. As previously discussed, Hamby’s right to custody of
JJH is not an issue in this appeal.
7. In a mother/custodial parent’s appeal from the trial court’s
appointment of maternal grandparents as guardians for her child,
another division of this Court determined, under circumstances where
custody was at issue, that the same proof was necessary to either establish or terminate a guardianship of a minor child. In re Guardianship of
H.D.B., 2001 OK CIV APP 147, 38 P.3d 252. Thus, the court in H.D.B.
held that a trial court must make specific findings regarding the parent’s unfitness as well as the child’s best interests before a minor is
placed with a third party over the objection of one or both parents. Id.
at ¶ 16, 38 P.3d at 756. We note that, in reaching its decision, the court
2319
in H.D.B. relied on M.R.S., 1998 OK 38 at ¶¶ 16-25, 960 P.2d at 362-64
(requiring application of the parental preference doctrine when custody is at issue and third parties challenge the right of a parent) and
McDonald v. Wrigley, 1994 OK 25, 870 P.2d 777 (holding, where paternal
grandmother sought to obtain custody of child from the mother by
intervening in a divorce action and filing a motion to modify, the controlling statute, 10 O.S.2001 § 7006-1.1 requires clear and convincing
evidence of the mother’s unfitness and notice to her of the conditions
found by the trial court to constitute parental unfitness so that the
mother knows what, if corrected, would amount to a change of circumstances allowing the mother to regain custody). The court decided
H.D.B. without the benefit of the more recent Supreme Court pronouncement in In re A.G.S., in which the mother, who was found to be
fit, was, nonetheless, not permitted to terminate a guardianship.
A.G.S., 2003 OK 1 at ¶ 14, 65 P.3d at 590. Further, the court decided
H.D.B. on facts not present in this case. This is not a divorce or termination proceeding governed by section 7006-1.1. Hamby has never had
custody of JJH and his fitness is not a factor to be determined in deciding the Barts’ guardianship petition.
8. See 30 O.S.2001 § 2-102 (A)(2)(providing that only the mother of
a child born out of wedlock may nominate a guardian if the natural
father has not acknowledged paternity pursuant to statutory procedure or been judicially determined to be the father). Although the
parties do not dispute Hamby’s paternity of JJH, there is nothing in the
record on appeal showing that his paternity has been established by
either of these methods. Cf., Buxton v. Wilson, 1982 OK 138, 654 P.2d
1048.
9. Further, Hamby’s argument that there was no evidence in the
record to support a finding that he was a person described in the seven
section 21.1(D) factors is equally misplaced. The criteria discussed in
that paragraph apply not to Hamby but to the Barts, the “individual[s]
seeking . . . guardianship.” There is no evidence in this record, and
Hamby does not argue, that the Barts meet any of the seven “disqualifying” criteria in section 21.1(D).
10. There is little doubt, however, that had Hamby filed his own
petition for guardianship, the Trial Court would have found him
unsuitable on the basis of this record.
2007 OK CIV APP 76
T.W. SNYDER and CARYN SNYDER,
Plaintiff/Appellees, v. JERRY STANDIFER,
Defendant/Appellant.
No. 103,484, Comp. w/103,485. July 20, 2007
BRYAN COUNTY, OKLAHOMA
HONORABLE TRACE C. SHERRILL, TRIAL
JUDGE
AFFIRMED
T.W. Snyder, Caryn Snyder, Colbert, Oklahoma,
Pro se,
Mark Andrew Morrison, Durant, Oklahoma,
for Defendant/Appellant.
CAROL M. HANSEN, Presiding Judge:
¶1 On January 25, 2006, pursuant to The Protection From Domestic Abuse Act, 22 O.S.2006
Supp. §60 et seq, Plaintiffs, Thomas W. Snyder
a/k/a T.W. Snyder [Thomas] and his wife,
Caryn Snyder [Caryn], on behalf of themselves
and their two minor children, filed a petition
for a protective order against Jerry Cortez Standifer [Jerry].1 On January 23, 2006, two days
earlier, Jerry and his wife, Nancy, had filed a
petition for a protective order against Thomas.2
2320
Both cases, as well as a third case, were
consolidated for hearing.3
¶2 On May 25, 2006, the trial court granted
Thomas and Caryn’s petition for protective
order against Jerry on the ground of harassment; it denied Jerry and Nancy’s petition for a
protective order against Thomas. In that order,
the trial court specifically found:
. . . The parties have a long-standing disagreement due to some failed business
efforts. The animosity between the parties
is evident.
In the most recent incident on or about
January 20, 2006, Standifer appeared at
Bowles Gas Station while T.W. Snyder was
there. Testimony at trial was conflicting as
to whether Standifer or T.W. Snyder initiated this particular confrontation, but the
court finds Standifer made comment(s) to
Mr. Snyder in passing. T.W. Snyder advised
Standifer that he, Snyder, did not want to
converse with Standifer. When Standifer
was leaving the business, T.W. Snyder
kicked at the [sic] Standifer and used some
choice language. The court finds this incident was provoked by the actions of Standifer. Previously, on or about October 11,
2005, Standifer had appeared at the hospital room of Caryn Snyder on the occasion
of the birth of one of her children. According to the Snyders, Standifer had been
advised not to come to the hospital. Standifer was taken by the arm and removed
from the hospital room by T.W. Snyder.
T.W. Snyder appeared that afternoon at
Standifer’s place of business and had
another verbal confrontation where T.W.
Snyder advised Standifer again to have no
contact with the Snyders. At some point,
Standifer advanced toward Snyder and
Snyder pushed Standifer back with an
open hand. This was the only physical contact between Standifer and Snyder at the
place of business. The court finds this
sequence of events was provoked by the
actions of Jerry Cortez Standifer. This
incident was one of the incidents related
in Jerry Cortez Standifer’s petition for
protective order.
In at least one instance Standifer flagged
down Caryn Snyder’s vehicle and she and
Standifer engaged in conversation. Caryn
Snyder also testified that Jerry Cortez Standifer has done things to aggravate T.W.
Vol. 78 — No. 25 — 9/15/2007
Snyder since October, 2005. Mrs. Snyder
also testifed that these confrontations are
upsetting and that she does not want these
confrontations occurring around her children.
The court is convinced that there are severe
and longstanding problems within the family. Quite simply, there are situations in life
that are unpleasant and difficult to resolve.
The parties involved are strong willed and
firm in their belief that they are in the right.
It is clear that Jerry Cortez Standifer will
not abide by the expressed wishes of the
plaintiffs that Jerry Cortez Standifer has no
contact with the plaintiffs.
Accordingly, Thomas (T.W.) Snyder and
Caryn Snyder petitioners are hereby
granted a final protective order against
Jerry Cortez Standifer on the ground of
harassment. . . .
Mr. Standifer’s petition for protective order
against Thomas (T.W.) Snyder is hereby
dismissed. Nancy Standifer’s petition for
protective order against Thomas (T.W.)
Snyder is also dismissed, since her basis for
filing against Snyder is only that she was
present during the heated conversation at
Standifer’s business on or about October
11, 2005, when Mr. Snyder told her to “shut
up.”
¶3 On May 26, 2006, the trial court issued a
final protective order wherein it ordered Jerry
“ . . . to have no contact with Petitioner, either
in person or by telephone, at any time or
place.” Jerry appeals these orders.4
¶4 Jerry contends the trial court abused its
discretion in granting Thomas and Caryn a
protective order against him because its findings that he harassed Thomas and Caryn on
three separate occasions are not supported by
the evidence. He argues there is specific evidence of just three opportunities for him to
have harassed Thomas and Caryn: when he
visited the new grandchild at the hospital over
the previous objections of Thomas and Caryn;
when he flagged down Caryn’s car to talk with
her; and when Caryn visited his home to get
some documentation regarding a horse. He
asserts there is no evidence he harassed or
attempted to harass them during these
encounters.
¶5 The Court of Civil Appeals reviews the
trial court’s application of a statute to the facts
Vol. 78 — No. 25 — 9/15/2007
presented under a de novo standard. Speilmann
v. Hayes ex rel. Hayes, 2000 OK CIV APP 44, 3
P.3d 711.5 Moreover, where there is failure to
file an answer brief, if the brief in chief is reasonably supportive of the appellant’s allegations of error, the reviewing court will ordinarily reverse the appealed judgment with appropriate directions; however, if the brief in chief
is not reasonably supportive of the allegations
of error, the trial court’s decision will be
affirmed. Fleet Real Estate Funding Corp. v.
Frampton, 1991 OK CIV APP 32, 812 P.2d 416.
¶6 Section 60.1(3) defines harassment as a
knowing or willful course of conduct by a family member6 directed at a specific person which
seriously annoys that person and serves no
legitimate purpose. That course of conduct, as
such, would cause a reasonable person to suffer substantial emotional distress and must
actually cause the substantial distress to the
person.
¶7 Both Caryn and Thomas testified there
had been long-standing animosity between
them and Jerry. As a result of that, they did not
want to be around him nor did they want their
children around him.7 They testified Jerry knew
that. In spite of his knowledge of their wishes,
he followed a course of conduct wherein he
would confront Caryn, even with her older
daughter present. Caryn testified she did not
want confrontations with Jerry with her daughter present because it was too emotional for her.
Nevertheless, he would “. . . pull her over at different places.” He flagged her down with her
four year old daughter in her car and confronted her. She explained she was emotionally
distressed by this. He did the same thing following a wedding Caryn attended, and she
also testified that when she is present at Bowles
Station, “. . . he pulls up in there just because he
sees that I’m there by myself, without T.W. and
he feels he can overpower me. And I do not
want those type of confrontations and situations around my children.” Jerry did not dispute this course of conduct.
¶8 This course of conduct continued with his
visit to the hospital. Jerry admits he went there
“. . .over objection of Caryn, Thomas and Jamie
. . . .” Additionally, Caryn testified Jerry’s presence at the hospital was stressful to her. Jerry
does not dispute Thomas took him by the arm
and escorted him out of the hospital room.
¶9 In applying §60.1(3) to these incidents,
there is evidence these willful confrontations
2321
with Caryn and Thomas seriously annoyed
and alarmed them, served no legitimate purpose, and caused them substantial emotional
distress.
¶10 Jerry’s brief in chief is not reasonably
supportive of his allegations of error. The May
25th and May 26th orders are supported by the
law and the evidence. See Spielmann v. Hayes ex
rel. Hayes, supra.
AFFIRMED
Tim Harris, DISTRICT ATTORNEY, Tara Britt,
ASSISTANT DISTRICT ATTORNEY, Tulsa,
Oklahoma, for Petitioner/Appellee,
David C. Morse, Jenks, Oklahoma, for Respondents/Appellants,
Sal Munoz, ASSISTANT PUBLIC DEFENDER,
Tulsa, Oklahoma, for Children.
AFFIRMED
BUETTNER, J., and BELL, J., concur.
1. Pursuant to section 60.1, the grounds for issuance of a protective
order are defined as follows:
1) “Domestic abuse” means any act of physical harm, or the threat
of imminent physical harm which is committed by an adult, emancipated minor, or minor child thirteen (13) years of age or older against
another adult, emancipated minor or minor child who are family or
household members or who are or were in a dating relationship;
2) “Stalking” means the willful, malicious, and repeated following
of a person by an adult, emancipated minor, or minor thirteen (13)
years of age or older, with the intent of placing the person in reasonable fear of death or great bodily injury;
3) “Harassment” means a knowing and willful course or pattern of
conduct by a family or household member or an individual who is or
has been involved in a dating relationship with the person, directed at
a specific person which seriously alarms or annoys the person, and
which serves no legitimate purpose. The course of conduct must be
such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial distress to the person. “Harassment” shall include, but not be limited to, harassing or
obscene telephone calls in violation of Section 1172 of Title 21 of the
Oklahoma Statutes and fear of death or bodily injury.
2. Thomas and Caryn are husband and wife. Jerry and Nancy are
husband and wife. Jerry is Caryn’s father. Nancy is Caryn’s stepmother.
3. Jerry and Nancy also filed a petition for a protective order
against Burney Crenshaw, husband of Jerry’s daughter, Jamie (and
sister of Caryn). In the Crenshaw case, Jerry and Nancy were granted
a protective order against Crenshaw. Crenshaw did not appeal that
decision.
4. Thomas and Caryn did not file an answer brief. This cause
stands submitted on appellant’s brief only. In companion case 103,485,
Jerry appeals the trial court’s dismissal of his and Nancy’s petition for
protective order against Thomas. We are issuing simultaneous opinions today in the present appeal and in 103,485.
5. In Spielman, the matter was submitted for appeal on appellant’s
brief only.
6. Jerry does not dispute he is a “family member.”
7. At the time of the hearing, Caryn and Thomas had a four year
old daughter and an infant daughter.
2007 OK CIV APP 77
IN THE MATTER OF J.C., and J.C., deprived
children who are less than 18 years of age.
THE STATE OF OKLAHOMA, Petitioner/
Appellee, v. KATHY SHANNON and
CALVIN CHARLES,
Respondents/Appellants.
No. 103,645. July 24, 2007
TULSA COUNTY, OKLAHOMA
2322
HONORABLE CARL FUNDERBURK, TRIAL
JUDGE
OPINION BY JOHN F. FISCHER, PRESIDING
JUDGE:
¶1 Biological parents appeal from the Trial
Court’s termination of their parental rights
with respect to their children JC and JC. Based
on our review of the record on appeal and
applicable law, we affirm.
BACKGROUND FACTS
¶2 On March 1, 2005, the State of Oklahoma
filed a petition requesting that the Trial Court
adjudicate that JC and JC were deprived and
terminate the Mother’s parental rights to both
children. In an amended petition filed September 9, 2005, the State sought termination of the
Father’s parental rights to both children as
well. After a non-jury trial on July 6, 2005, the
Father and the Mother demurred to the sufficiency of the State’s evidence. The Trial Court
found that the children were deprived and terminated the parental rights of both parents.
The Mother and the Father filed this timely
appeal.
STANDARD OF REVIEW
¶3 When reviewing a trial court’s termination of parental rights, we examine the record
on appeal to ascertain whether its decision to
terminate is supported by clear and convincing
evidence. In re S.B.C., 2002 OK 83, ¶¶ 5-7, 64
P.3d 1080, 1081-82.
DISCUSSION
¶4 At issue in this termination proceeding is
the constitutionally protected right of the
Mother and the Father to parent these two
children. As the parents correctly argue:
The fundamental liberty interest of natural
parents in the care, custody, and management of their child does not evaporate simply because they have not been model
parents or have lost temporary custody of
Vol. 78 — No. 25 — 9/15/2007
their child to the State. Even when blood
relationships are strained, parents retain a
vital interest in preventing the irretrievable
destruction of their family life. . .. When the
State moves to destroy weakened familial
bonds, it must provide the parents with
fundamentally fair procedures.
Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.
Ct. 1388, 1394-95 (1982).
¶5 The constitutional interests of the parents,
however, are not absolute. Equally recognized
in this State are the constitutional rights of children.
The interest of children in a wholesome
environment has a constitutional dimension no less compelling than that the parents have in the preservation of family
integrity. In the hierarchy of constitutionally protected values both interests rank as
fundamental and must hence be shielded
with equal vigor and solicitude.
In re T.H.L., 1981 OK 103, ¶ 13, 636 P.2d 330,
334.
¶6 The two children involved in this termination were the Mother’s fifth and sixth children and, at least, two of the Father’s children
with the Mother.1 The grounds for termination
as to each parent are different and will be discussed separately.
I. The Mother’s Termination
¶7 The State sought to terminate the Mother’s parental rights for essentially two reasons.
First, the State alleged that it had previously
terminated the Mother’s parental rights to
other children and that she had failed to correct
the conditions that led to the previous terminations or the conditions that led to these children being adjudicated as deprived. Second,
the State alleged that the Mother has been
diagnosed with various mental disorders
“which greatly inhibit the natural mother’s
ability to stabilize and care for her children
when she is not taking medication for the disorders.” In its petition, the State cited 10 O.
S.2001 §§ 7006-1.1(A)(6)2 and 7006-1.1(A)(13).3
A. The State’s Evidence
¶8 At trial, the State submitted four previous
orders terminating the Mother’s parental rights
to four of her seven children. The first order, In
re C.S., JVD-95-90, provided:
Vol. 78 — No. 25 — 9/15/2007
[T]he court finds that the State’s motion
should be sustained based on clear and
convincing evidence that was uncontroverted that the mother:
a. failed to comply with the dispositional standards;
b. failed to follow through with individual counseling;
c. failed to complete parenting classes;
d. failed to maintain sufficient income
to sustain the needs of the child.
The dispositional standards in that case
ordered, “That the mother seek appropriate
employment or income sufficient for the child’s
needs; attend and complete parenting skills
classes; provide a safe, stable independent
home for the child; visit with the child at least
once per month; and attend individual counseling.” The order recited that the Mother’s
medical records “indicated that the mother
lacks insight, is impulsive, lacks decision making capabilities, is unable to procure independent transportation, and has sparse or no coping skills.”
¶9 In In re A.N.S., JVD-99-108, the Court
ordered the Mother’s parental rights terminated pursuant to 10 O.S.2001 § 7006-1.1(A)(15)
because the State had placed the child in foster
care for fifteen of the most recent twenty-two
months.
¶10 In In re J.S., JD-2001-218, the Court terminated the Mother’s parental rights pursuant to
10 O.S.2001 §§ 7006-1.1 (A)(5), (6), (7), (13) and
(15) after a jury found that: (1) the State had
placed JS in foster care for fifteen of the most
recent twenty-two months; (2) the Mother had
wilfully failed, refused or neglected to contribute child support; (3) the Mother failed to correct the conditions that led to JS being adjudicated as deprived; (4) the Mother failed to correct the conditions that led to the termination
of her parental rights in the past; and (5) the
Mother had a mental illness or deficiency that
rendered her incapable of providing adequate
care and which did not respond to therapy or
treatment.
¶11 In In re K.C., JD-2002-169, the Court once
again ordered the termination of the Mother’s
parental rights in accordance with 10 O.S.2001
§§ 7006-1.1(A)(5),(6),(7) and (13) after a jury
determined that: (1) the Mother had wilfully
failed, refused or neglected to contribute child
2323
support; (2) the Mother failed to correct the
conditions that led to JS being adjudicated as
deprived; (3) the Mother failed to correct the
conditions that led to termination of her parental rights in the past; and (4) the Mother had
a mental illness or deficiency that rendered
her incapable of providing adequate care
and which did not respond to therapy or
treatment.
¶12 The State also offered the testimony of
Dr. Michael Martin. Based on his review of the
Mother’s mental health history and the psychological evaluation he personally conducted,
Dr. Martin testified that the Mother suffered
from Borderline Personality Disorder. Dr. Martin testified that, due to the Mother’s condition,
in times of stress she was prone to angry outbursts, unreasonable paranoia, auditory and
visual hallucinations, difficulty tolerating
confrontation and unrealistic expectations from
her relationships with both adults and
children.
¶13 Dr. Martin also testified that he believed
the Mother had a Reactive Attachment Disorder, which developed in her childhood as a
result of her relationship with her biological
parents and her foster parents who were cruel
and abusive. And, while her symptoms at particular points in her past may have manifested
and been diagnosed in various ways, the Borderline diagnosis had been consistent throughout her past. Ultimately, the Reactive Attachment Disorder made it difficult for the Mother
to develop realistic, bonded relationships with
others, including her children.
¶14 When asked whether the Mother’s condition could be corrected with treatment, Dr.
Martin responded, “Twenty years ago there
was treatment that would be quite effective,”
and “Borderline individuals can make significant changes, if they’re able to maintain their
relationship with a therapist over time.” Dr.
Martin further testified that such treatment is
not currently available because “this is an
extremely expensive and intensive treatment,”
and that the in-patient facilities that provided
this treatment in the past had closed. In his
psychological evaluation Dr. Martin states,
“[The Mother’s] personal and emotional difficulties run very deep in her personality and
her prognosis at this particular time would be
poor.” When asked to elaborate, Dr. Martin
stated, “[The Mother’s prognosis] would be
poor for her resolving [her difficulties] over
time to where you could see her having long2324
term relationships that were satisfying and
productive,” and that “medication has little
effect on [her] personality disorder.”
¶15 Dr. Martin’s testimony establishes that,
at best, any improvement in the Mother’s condition would be “[e]xtremely gradual, it would
have to happen over years.” Dr. Martin testified that before the Mother would be able to
spend any time with her children, she must
first form a bond with a therapist, resolve her
issues with interpersonal relations, and work
through her history of physical and emotional
abuse. After working through these issues, Dr.
Martin testified, the Mother could begin supervised visitation, progress gradually to limited
visitation and, eventually, begin overnight visitation with her children. Dr. Martin further
testified that, at the earliest, reunification
should not begin until after the Mother had
undergone successful treatment for a year to
eighteen months.
¶16 The Mother testified in the State’s casein-chief that she had been employed in her
current job as a waitress for the past two
months and that, due to a recent pregnancy,
she was only able to work once a week. She
further testified that she had resided at her current residence for less than a month. The
Mother testified that her monthly income,
which consisted of her wages, contributions
from social security insurance and medical disability, totaled $651. She further testified that
her current monthly expenses totaled $371. She
testified that she had not contributed to her
children’s support because she was never
ordered to do so by a court. The Mother further
testified that she visited with the children regularly and generally twice a month unless they
were out of town.
¶17 Subsequent to her initial termination
order, the Mother sought therapy to help correct her mental illness. According to her testimony, the Mother had participated in individual counseling, pet therapy and group therapy
following the initial termination. Prior to termination of her parental rights in 2002, the
Mother pursued therapy with therapist Alisa
Longnecker for four years and had worked
with Dr. Sharolyn Wallace and therapist Manju
Kaul. The Mother testified that she had not
seen a therapist for a period longer than six
weeks since her termination in 2002. Finally,
the Mother testified that Dr. Martin was the
first to tell her that she had a Reactive Attachment Disorder and that it was helpful to know
Vol. 78 — No. 25 — 9/15/2007
that information in order to understand why
she acted they way she did at times.
¶18 JC and JC were taken into state custody
within two weeks of being born. From that
time, the children resided in foster care with
the adoptive parents of their older sister. Dr.
Martin testified, “If [the Mother’s] children
stayed in foster care and they’ve never been
with her, they’re going to be the children of
those foster parents.” Dr. Martin also stated
that the Mother’s treatment, which requires
that the children spend anywhere from fifty to
one hundred percent of their time outside of
her care during treatment, would be detrimental to their health, particularly where they are
currently in a safe and stable environment with
another sibling and foster parents who wish to
adopt them. Dr. Martin concluded that it would
not be in the best interest of the children to
allow the Mother to attempt to complete therapy before terminating her parental rights.
B. The Mother’s Position
¶19 The Mother does not challenge the prior
terminations or the Trial Court’s adjudication
in this case that JC and JC are deprived. The
Mother argues that “to use [her] previous termination of 1995 as the underlying basis for
termination of parental rights in 2006, seems to
be violative of fundamental fairness” and the
constitutional guarantee of due process of law,
analogous to a retroactive criminal penalty.
First, the Mother ignores the 2001 and 2002
terminations.4 Unlike the 1995 termination
based on Mother’s failure to provide a safe and
stable home, the last two terminations were
based, at least in part, on subsection (A)(13)
and clear and convincing evidence that the
Mother had a mental illness or condition that
will not respond to treatment. Second, contrary
to the Mother’s construction, subsection (A)(6)
is not satisfied by proof that parental rights
were terminated in the past. Proof of a previous termination is not dispositive even though
it provides “relevant background information
on the Parents’ past propensities, care, handling of and attitude toward their children.” In
re K.L.H., 1993 OK CIV APP 127, ¶ 16, 858 P.2d
1296, 1298. It does, however, satisfy one of the
three elements required for termination pursuant to subsection (A)(6).
¶20 Contrary to the Mother’s construction,
subsection (A)(6) also requires a showing that
the Mother has failed to correct those conditions that led to her previous terminations, and
Vol. 78 — No. 25 — 9/15/2007
that the present termination is in the best interest of JC and JC. Consequently, subsection
(A)(6) does not impose a retroactive penalty or
violate the principle of fundamental fairness
required by the Due Process Clause.
¶21 The Mother also argues that an individualized service plan (ISP) contained in a dispositional order issued pursuant to 10 O.S.2001 §
7003-5.5 is a contract. The Mother contends,
therefore, that her performance of the “contract” should be excused on the grounds of
impracticability because she had limited financial resources, the cost of an effective therapy
regimen for her mental disorder was very high,
and the State failed to accurately diagnose her
condition at the outset and provide effective
therapy. These conditions, she contends, made
it effectively impossible for her to correct the
conditions in the ISPs.
¶22 The Mother’s factual assertions in support of this argument are not entirely supported by the record. The Mother did not offer any
evidence showing that she had requested, but
was denied, any financial support from the
State to pursue therapy. Rather, her own testimony establishes that the State paid for her
psychological examination by Dr. Martin as
well as her past therapy sessions with
therapists Longnecker, Wallace and Kaul. It
appears, therefore, that the State is committed
to assisting the Mother.
¶23 The Mother’s commitment is not demonstrated by the record. Her attendance at
therapy sessions was irregular, she appears to
have at one point chosen “pet therapy” rather
than the recommended form of therapy, and
she refused some forms of required therapy.
The Mother’s “impracticability” argument,
even if factually supported, is not relevant to
the termination of her parental rights to JC and
JC pursuant to subsection (A)(6).
¶24 Section 7006-1.1(A)(6) does not require
that the State prove a parent has failed to satisfy the terms of an ISP with respect to the
children being terminated. Unlike subsection
A(5), subsection A(6) does not refer to section
7003-5.5 and does not require proof of failure to
correct conditions contained in a section 70035.5 order. Subsection A(6) requires proof that
the conditions justifying the previous termination have not been corrected. That proof, however, is not dependent on a “contract” or an
agreement between the parent and the State
concerning what must be corrected or the time
2325
within which any correction must occur. Consequently, if parental rights have been terminated pursuant to section 7006-1.1(A)(13)
because of a mental condition that will not
respond to treatment, proof that the mental
condition has not changed would satisfy section 7006-1.1(A)(6) even in the absence of a
section 7003-5.5 dispositional order.
¶25 In this case, the State introduced evidence that the Mother had still been unable to
provide the safe, stable home, which resulted
in termination of her parental rights in 1995. In
addition, the State introduced evidence that
the Mother’s mental condition, the basis on
which her parental rights were terminated in
2001 and 2002, had not improved.
¶26 This Court has previously addressed the
termination of parental rights in two circumstances that are instructive in this case. Both,
however involved terminations pursuant to
subsection A(5). In re C.R.T., 2003 OK CIV APP
29, 66 P.3d 1004, held that a termination for
failure to correct conditions for which the child
was adjudicated deprived cannot be predicated
on a mental illness that will not respond to
treatment if the failure to correct is a manifestation of the mental illness. That case involved
the initial termination of a mother’s parental
rights based on her mental condition and
required application of subsection (A)(13)
because, the Court concluded, the mother’s
condition would not respond to treatment and,
therefore, she was not able to correct the conditions that led to the deprived adjudication. In re
R.S., 2002 OK CIV APP 90, 56 P.3d 381, affirmed
termination because the mother had the ability,
but failed to correct, the mental condition, the
basis on which her children were adjudicated
deprived.
¶27 In this case, we deal with the termination
of the Mother’s parental rights after two previous terminations, In re J.S., JD-2001-218, and In
re K.C., JD-2002-218, in which a jury found that
the State had proved by clear and convincing
evidence that the Mother had a mental illness
or deficiency that would not respond to treatment. There is nothing in the language of subsection A(6) that excludes use of a prior termination based on a mental condition that “will
not respond to treatment.” Likewise, there is
nothing in the language of subsection A(13)
that requires all terminations in which the parent has a mental condition unresponsive to
treatment be prosecuted pursuant to that provision alone. Therefore, the Mother’s previous
terminations pursuant to subsection A(13) were
relevant and admissible in this termination in
2326
which the State sought to rely on subsection
A(6).
¶28 As previously discussed, however, when
proceeding pursuant to subsection A(6) based
on a previous termination pursuant to subsection A(13), the State must still prove two additional factors. First, that the mental illness justifying the prior termination persists. 10 O.
S.2001 § 7006-1.1(A)(6). And second, that the
termination is in the best interests of the child.
10 O.S.2001 §§ 7006-1.1(A).
¶29 The first of these factors requires the
State to prove that the parent’s present and
persistent mental condition “renders the parent incapable of adequately and appropriately
exercising parental rights, duties and responsibilities.” 10 O.S.2001 § 7006-1.1(A)(13)(c). For
obvious reasons, an opportunity to correct the
mental condition pursuant to a section 7003-5.5
order is not required for termination pursuant
to subsection A(13). Nonetheless, and even
though a parent with an untreatable mental
condition is unlikely to be able to correct that
condition, the State is still required to prove
when proceeding pursuant to subsection A(6)
that the previously determined condition continues to affect the parent’s ability to properly
take care of the children at issue. This requirement protects the constitutional rights of the
parent regarding the parental relationship. It
also avoids the “once wrong, always wrong”
construction that the Mother finds in the statute. At the same time, it protects the child’s
equally important constitutional right to a
“wholesome environment.” T.H.L., 1981 OK
103 at ¶ 3, 636 P.3d at 334.
¶30 This record contains clear and convincing evidence that the State met this burden.
The evidence at trial showed that the Mother’s
parental rights had been previously terminated
and that the Mother had failed to correct the
conditions that resulted in those prior terminations. Therefore, we conclude that the Trial
Court did not err in terminating the Mother’s
parental rights pursuant to section 70061.1(A)(6). This result makes it unnecessary for
us to address the Mother’s challenge to termination pursuant to 10 O.S.2001 § 70061.1(A)(13).
II. Father’s Termination
¶31 The Father contends that the Trial Court
erred in terminating his parental rights because
he is confident that he could complete a treatment plan if the Trial Court were to assign one
to him. Fatal to the Father’s request for relief is
his failure to allege any cognizable error by the
Vol. 78 — No. 25 — 9/15/2007
Trial Court. The Trial Court terminated the
Father’s parental rights pursuant to 10 O.
S.2001 § 7006-1.1(A)(12).5 At trial, the State
offered evidence that on June 26, 1995, the
Father pled guilty to attempted larceny of an
automobile and feloniously pointing a weapon
for which he received sentences of three years
and eight years, respectively. The State offered
further proof that the Father pled guilty to
unauthorized use of a motor vehicle for which
he received a ten year sentence. The State also
submitted evidence that on May 11, 2005, following the birth of JC and JC on February 11,
2005, the Father plead guilty to concealing stolen property for which he received a four-year
sentence; a sentence that the Father was still
serving at the time of these proceedings.
¶32 The Father testified that he had been
incarcerated on the most recent conviction
since April 15, 2005, and that, consequently, he
had not visited with, or sent any financial support to, the children. According to the Father’s
testimony, prior to his current incarceration he
had only visited the children during the two
weeks prior to their discharge from the hospital and that he had last seen them on April 13,
2005. The Father requests that this Court reverse
the termination of his parental rights based on
his willingness to establish a stable relationship with his children following completion of
his sentence. The record establishes clear and
convincing evidence that the Father had not
spent a sufficient amount of time to develop a
strong relationship with the children prior to
his incarceration and that termination of the
Father’s parental rights was justified pursuant
to section 7006-1.1(A)(12). Consequently, the
Trial Court did not err in terminating the
Father’s parental rights to both children.
CONCLUSION
¶33 The record on appeal establishes by clear
and convincing evidence that: (1) the Mother’s
parental rights to other children have been previously terminated and that she has failed to
correct the conditions that precipitated those
terminations and (2) the Father’s incarceration
justifies termination of his parental rights. Further, the Father has failed to allege or demonstrate any legal error on the part of the Trial
Court. Accordingly, the Judgment of the Trial
Court is affirmed.
¶34 AFFIRMED.
WISEMAN, J., concurs, and RAPP, C.J., dissents.
RAPP, C.J., dissenting:
Vol. 78 — No. 25 — 9/15/2007
¶1 I dissent.
¶2 Before the State may terminate Mother’s
parental rights pursuant to Section 70061.1(A)(13), the State must show by clear and
convincing evidence that her mental illness
will not respond to treatment and will not substantially improve. Here, the competent medical opinion did not reach the conclusion
required by the statute. Under the evidence
presented, the finding that Mother’s illness is
not treatable or that she will not substantially
improve is not based upon medical science, but
rather on economic reasons of the expense
associated with the treatment. The language of
the statute is clear and unambiguous and does
not include a financial component.
¶3 The Section 7006-1.1(A)(13)(e) finding
here rests upon a presumption or inference,
which lacks a foundation based on sound
medical evidence. Moreover, the inferred or
presumed finding does not necessarily follow
from the evidence presented. This raises the
issue of whether Mother has been denied Due
Process of Law. Stanley v. Illinois, 405 U.S. 645,
92 S. Ct. 1208, 31 L. Ed.2d 551 (1972); see In re
Wright, 1974 OK 84, 524 P.2d 790. The termination by presumption may be efficient but the
“Constitution recognizes higher values than
speed and efficiency.” Stanley, 405 U.S. at 656,
92 S. Ct. at 1215.
¶4 Thus, I find an absence of clear and convincing evidence as to the Section 70061.1(A)(13)(e) component of the State’s burden.
I would hold it to be error to terminate Mother’s parental rights pursuant to Section
7006.1.1(A)(13).
¶5 In Father’s case, the Majority has overlooked the fact that Father was to be released
from prison in February 2007, or less than five
months from the date of the appellate briefs.
The duration of incarceration is a factor to be
considered. 10 O.S.2001, § 7006-1.1(A)(12)(d).
There is no evidence in the record of Father
being unable to care for the children. Therefore,
it was error to terminate Father’s parental
rights.
1. Mother’s parental rights to her four older children had been
previously terminated. At the time of trial, she was pregnant with her
seventh child.
2. 10 O.S.2001 § 7006-1.1(A)(6) provides that a court may terminate
the rights of a parent to a child based on a finding that a subsequent
child has been born to a parent whose parental rights to any other child
have been terminated by the court; provided, that the applicant shall
show that the condition that led to the making of the finding that
resulted in the termination of such parent’s parental rights to the other
child has not been corrected.
3. 10 O.S.2001 § 7006-1.1(A)(13) provides that a court may terminate the rights of a parent to a child based on a finding that: (1) the
child has been adjudicated deprived; (2) the child has been placed in
2327
custody outside the home of a natural or adoptive parent, guardian or
extended family member; (3) the parent has a mental illness or mental
deficiency that renders the parent incapable of adequately and appropriately exercising parental rights, duties and responsibilities; (4) the
continuation of parental rights would result in harm or threatened
harm to the child; (5) based on competent medical opinion, parent’s
mental illness or deficiency will not respond to treatment, therapy or
medication and will not substantially improve; and (6) termination of
parental rights is in the best interests of the child.
4. Although the State introduced the 1999 termination, it is not
relevant to a termination based on subsection A(6) because placement
in a foster home for 15 of 22 months is not a condition a parent can
correct after the parent’s rights to that child have been terminated.
5. 10 O.S.2001 § 7006-1.1(A)(12) provides that a court may terminate parental rights based on a finding that:
a. the child has been adjudicated deprived;
b. custody of the child has been placed outside the home of a natural or adoptive parent, guardian or extended family member;
c. the parent whose rights are sought to be terminated has been
incarcerated;
d. the continuation of parental rights would result in harm to the
child based on consideration of the following factors, among others:
the duration of incarceration and its detrimental effect on the parent/
child relationship; any previous incarcerations; any history of criminal
behavior, including crimes against children; the age of the child; the
evidence of abuse or neglect of the child or siblings of the child by the
parent; and the current relationship between the parent and the child
and the manner in which the parent has exercised parental rights and
duties in the past; and
e. termination of parental rights is in the best interests of the
child.
2007 OK CIV APP 78
JAMES RAY FRIEND, Plaintiff/Appellant, v.
MANDY L. TESORO, now ROBERTSON,
Defendant/Appellee.
No. 104,281. June 15, 2007
LINCOLN COUNTY, OKLAHOMA
HONORABLE DAWSON ENGLE, TRIAL
JUDGE
REVERSED AND REMANDED
Miles C. Zimmerman, Zehra Jaffrey, LINCOLN
COUNTY LAW CENTER, Chandler, Oklahoma, for Plaintiff/Appellant,
Kimberly K. Moore-Waite, Thomas Neil Lynn,
III, LEGAL AID SERVICES OF OKLAHOMA,
Stillwater, Oklahoma, Thomas Neil Lynn III,
Legal Aid Services of Oklahoma, Inc., 2901
Classen Blvd, Suite 112, Oklahoma City, Oklahoma, for Defendant/Appellee.
OPINION BY CAROL M. HANSEN, Presiding
Judge:
¶1 The trial court dismissed Plaintiff’s, James
Friend, petition to determine paternity, filed
July 9, 2002, of N.F.T. born August 18, 1999.1
Mr. Friend appeals without appellate briefs in
conformance with the procedures for the appellate accelerated docket, Okla. Sup. Ct. R. 1.36,
12 O.S. 2001, Ch 15, App.1.
¶2 The parties were never married. Mandy
Tesoro, now Robertson is the mother of N.F.T.
2328
She moved to dismiss the action alleging a
DNA test showed conclusively James was not
N.F.T.’s father. Neither does Nickole’s birth
certificate list the name of the father. She
alleged she was already pregnant with N.F.T. at
the commencement of her conjugal relationship with Plaintiff. No briefs were submitted
by either party at trial, and no transcript was
designated or included in the record.
¶3 N.F.T.’s guardian ad litem filed a detailed
report concerning N.F.T., her mother and James
Friend. He stated James Friend held himself
out as the father of N.F.T. for over a two year
period after her birth, and she resided with
him over the same two year period. She feels
N.F.T. knows James as her father. She knows
her real father (not named in the action) only as
a cousin.
¶4 Although the record does not reflect there
was a discussion of the Uniform Parentage Act,
10 O.S. 2006 Supp. §7700-101 et seq, at trial, the
Act itself in §7700-902 specifically states: “A
proceeding to adjudicate parentage or an
acknowledgment of paternity which was commenced or executed before November 1, 2006,2
is governed by the Uniform Parentage Act.”
The Act provides:
****
§7700-204 A. A man is presumed to be the
father of a child if:
5. For the first two (2) years of the child’s
life, he resided in the same household with
the child and openly held out the child as
his own.
B. A presumption of paternity established
under this section may be rebutted only by
an adjudication under Article 6 of the Uniform Parentage Act.
10 O.S. 2006 Supp. §7700-607 provides:
A. Except as otherwise provided in subsection B. of this section, a proceeding brought
by a presumed father, the mother or another individual to adjudicate the parentage of
a child having a presumed father shall be
commenced not later than two (2) years
after the birth of the child.
B. A proceeding seeking to disprove the
father-child relationship between a child
and the child’s presumed father may be
maintained at any time if the court, prior to
an order disproving the father-child relationship, determines that;
Vol. 78 — No. 25 — 9/15/2007
1. The presumed father and the mother of
the child neither cohabited nor engaged in
sexual intercourse with each other during
the probable time of conception; and
2. The presumed father never openly held
out the child as his own.
¶5 In our view, these provisions were enacted to cover the exact situation we have here.
The action was not commenced within the two
year restriction. According to the petition,
Friend was a presumed father under §7700204(A)(5). Challenges against a presumed
father must be brought within two years of the
child’s birth. §7700-607(A). This paternity
action was commenced July 9, 2002, more than
two years after N.F.T.’s birth (August 18, 1999).
Therefore, if Friend’s allegations are true, it
appears he is the presumed father of N.F.T.,
which presumption cannot be rebutted.
¶6 It also appears that the trial court relied
exclusively on the DNA test, i.e. biological
fatherhood, and did not apply the Uniform
Parentage Act. This was error and the January
5, 2007 Order of Dismissal must be reversed.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH
THIS OPINION.
1. He also sought determination of his paternity of James O.
Friend, born in January of 2002. His paternity of this child is not in
question.
2. The Act was made effective November 1, 2006.
2007 OK CIV APP 79
CHESAPEAKE ENERGY MARKETING,
INC., Plaintiff/Appellee, v. STATE BOARD
OF EQUALIZATION and THE
OKLAHOMA TAX COMMISSION,
Defendants/Appellants.
No. 104,391. June 15, 2007
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BARBARA G. SWINTON,
TRIAL JUDGE
AFFIRMED
William K. Elias, Amy Elizabeth Wellington,
Linda Jo Blan-Byford, ELIAS, BOOKS, BROWN
& NELSON, P.C., Oklahoma City, Oklahoma,
for Plaintiff/Appellee,
Vol. 78 — No. 25 — 9/15/2007
Lynn C. Rogers, Larry D. Patton, Assistant
Attorney General, Oklahoma City, Oklahoma,
for Defendants/Appellants.
OPINION BY CAROL M. HANSEN, Presiding
Judge:
¶1 Defendant/Appellants, State Board of
Equalization and Oklahoma Tax Commission
(collectively State), seek review of the trial
court’s order granting summary judgment in
favor of Plaintiff/Appellee, Chesapeake Energy Marketing, Inc. (CEMI), declaring CEMI is
not a public service corporation for purposes of
ad valorem taxation. We affirm, holding State’s
attempt to reclassify CEMI violated the legislative moratorium on changing the treatment for
assessment of gas gathering system assets in 68
O.S.Supp.2002 §2851.3.
¶2 In 2004, CEMI sued State seeking a declaratory judgment State had exceeded its jurisdiction by attempting to centrally assess and tax
CEMI’s gas gathering lines and equipment
pursuant to procedures applicable to public
service corporations. It sought to enjoin State
from exercising jurisdiction over CEMI in
assessing ad valorem taxes by treating CEMI as
a public service corporation, and it requested
refund of taxes paid under protest for 2004.
CEMI filed similar suits for tax years 2005 and
2006, and the matters were consolidated.
¶3 State filed a motion for summary judgment seeking a declaration CEMI was a public
service corporation as defined by Okla. Const.
Art. IX, §34, and 68 O.S.2001 §2808 for purposes of ad valorem taxation. It asserted CEMI
was engaged in business in Oklahoma including gathering of natural gas, and had laid its
pipeline under public highways in more than
ten counties in Oklahoma. In support, State
attached CEMI’s responses to requests for
admission. State argued the term “public service corporation” must be broadly construed.
It cited Dobson Fiber Co. v. State Board of Equalization (Dobson Fiber), 2001 OK CIV APP 85, 27
P.3d 1029, for the proposition a company is a
public service corporation if it lays its lines
under public highways and its property is
spread out among several counties, and argued
CEMI should be treated like Dobson and
declared to be a public service corporation.
¶4 CEMI responded and moved for summary judgment, seeking a declaration it was not a
public service corporation for ad valorem purposes. It asserted it was a gas gathering company and was locally assessed from 1993 until
2329
May 2004, when the Ad Valorem Division of
the Oklahoma Tax Commission directed it to
render its property for central assessment as a
public service corporation. It asserted its function was to lay pipelines to connect wells operated by its parent company to pipelines of
purchasers, and did not furnish any products
to the public. CEMI also asserted it had never
used the power of eminent domain to occupy a
public highway but had laid its lines under
public highways pursuant to road crossing
permits available to the general public. In support, CEMI attached the affidavit of its president. CEMI discussed the history of litigation
and legislation regarding gas gatherers, including a legislative stay changing the manner of
assessment of gas gathering system assets
pending completion of a task force study.
¶5 In response, State submitted, among other
things, the affidavit of its Administrator of the
Ad Valorem Division Public Service Section for
the Oklahoma Tax Commission, stating CEMI
purchased Enco Gas Gathering Company
(Enco) on July 31, 2003. He stated Enco was a
public service corporation that the State Board
of Equalization centrally assessed from 1996
until 2003, and the 2004 assessment of CEMI
property by the State Board of Equalization
included the former property of Enco.
¶6 After further briefing and a hearing, the
trial court denied State’s motion for summary
judgment and granted CEMI’s motion. It found
Dobson Fiber was distinguishable from the
present case and 68 O.S.Supp.2006 §2807(12)(b),
68 O.S.2001 §2808, and 68 O.S.Supp.2002
§2851.3 were controlling. The trial court
declared CEMI was not a public service corporation for the purposes of ad valorem taxation.
State appeals without appellate briefs in conformance with the procedures for the appellate
accelerated docket, Okla.Sup.Ct.R. 1.36, 12 O.
S.Supp. 2003, Ch. 15, App. 1.
¶7 Because a grant of summary judgment
involves purely legal determinations, we will
review the trial court’s decision under a de novo
standard. Carmichael v. Beller, 1996 OK 48, 914
P.2d 1051, 1053. Summary judgment is appropriate only when there is no substantial controversy as to any material fact and one of the
parties is entitled to judgment as a matter of
law. 12 O.S.Supp. 2002, Ch. 2, App. 1, Rule 13.
¶8 The Legislature has plenary power to tax,
subject only to constitutional restrictions and
the will of the people expressed through elections. In re Oneok Field Services Gathering, LLC,
2001 OK 116, 38 P.3d 900, 903. The Oklahoma
2330
Constitution authorizes the Legislature to classify property for purposes of taxation. Okla.
Const. Art. X, §22. Property is taxed ad valorem
unless the Legislature provides a substitute
tax. Save Ad Valorem Funding For Students v.
Oklahoma Dept. of Environmental Quality, 2006
OK CIV APP 53, 135 P.3d 823, 826.
¶9 Generally, the county assessor has the
duty of locally assessing property taxed ad
valorem. 68 O.S.2001 §2819. However, the
property of railroads and public service corporations is centrally assessed by the State Board
of Equalization. Okla. Const. Art. X, §21(A),
and 68 O.S.2001 §2847(A). The definition of
public service corporations in Okla. Const. Art.
IX, §34, and 68 O.S.2001 §2808(A)(1) includes:
all transportation and transmission
companies, all gas, electric, heat, light and
power companies, and all persons, firms,
corporations, receivers or trustees engaged
in said businesses, and all persons, firms,
corporations, receivers or trustees authorized to exercise the right of eminent
domain or having a franchise to use or
occupy any right of way, street, alley or
public highway, whether along, over or
under the same, in a manner not permitted
to the general public.
¶10 Whether gas gatherers are public service
corporations has been the subject of recent litigation and legislation. Justice Kauger, in a concurring opinion in In re Oneok Field Services
Gathering, LLC (Oneok), 2001 OK 116, 38 P.3d
900, 907-909 (footnotes omitted), discussed the
litigation history:
¶3 We arrive at the point we find ourselves today via an unpublished Court of
Civil Appeals opinion promulgated on
April 5, 1996 — Texaco Exploration & Prod.,
Inc. v. State Bd. of Equalization, No. 85,256
(1996) cert. denied. The sole issue considered in the cause was whether Texaco
Exploration was a public service corporation for purposes of ad valorem taxation
under 68 O.S.1991 § 2808. Finding that
Texaco Exploration was not a public service corporation, the appellate court determined that Texaco Exploration should be
assessed by local county assessors rather
than by the State Board of Equalization.
¶4 Before 1994, Texaco Exploration, a
subsidiary of Texaco, Inc., was locally
assessed. However, in 1994, the Okla-homa
Tax Commission learned that Texaco Exploration owned and was operating gas gathering pipelines. Determining that Texaco
Vol. 78 — No. 25 — 9/15/2007
Exploration was a public service corporation, the Tax Commission ordered Texaco
Exploration to file reports for the purpose
of central assessment. The Tax Commission
recommended a value to the State Board of
Equalization which was certified for central assessment. Texaco Exploration filed
an action for declaratory and injunctive
relief asserting that it was not a public corporation subject to assessment by the State
Board of Equalization. Both the trial court
and the Court of Civil Appeals agreed and
county assessors were left with the responsibility of assessing property owned by the
gas gathering companies.
tive May 17, 2002. The task force’s report originally was due December 31, 2003, but the due
date twice has been extended, and now is set
for December 31, 2007. 68 O.S.Supp.2006
§2851.2, and Laws 2006, c. 272, §20. At the same
time the Legislature created the task force, it
imposed a moratorium on changes in the treatment of gas gathering assets, providing in 68
O.S.Supp.2002 §2851.3(B), “Effective January 1,
2003, there shall be no changes in the determination of whether gas gathering system assets
are locally assessed or centrally assessed and
the treatment of such assets for the January 1,
2002, assessment year shall be maintained and
preserved.”
¶5 The Legislature apparently recognized that the Texaco Exploration ruling
had the potential of causing some confusion as to what properties should be taxed
centrally by the State Board or locally by
county assessors.... Thereafter, the Legislature amended the statute relating to assessments for public service corporations to
provide that any gas gathering system
assessed by the State Board of Equalization
after January 1, 1997, would continue to be
assessed by the State Board through ad
valorem tax year 1998. The amendment
created a status quo — all pipeline gathering companies subject to central assessment as public service corporations maintained that status through the 1998 tax
year....
¶12 In the present case, CEMI was locally
assessed for the January 1, 2002, assessment
year, while Enco, treated as a public service
company, was centrally assessed during that
time period. On its face, §2851.3 seeks to preserve the status quo in the treatment of gas
gathering systems assets as of January 1, 2002.
CEMI, having acquired Enco, now possesses
some gas gathering assets that were locally
assessed on that date and some that were
centrally assessed.
¶6 Following the Texaco Exploration
ruling, it appears that public service corporations like Oklahoma Natural Gas began
to spin off gathering companies similar to
the appellee, Oneok Field Services Gathering, LLC.... These gathering companies
then began to take advantage of scheduling their property under the personal property statutes, omitting the value of rights of
way on the basis that they were real property interests taxable to the fee owner.
Because these gathering companies were
not considered public service corporations,
they were no longer required to schedule
“all” property interests for assessment as
public service corporation property.
¶11 After the Supreme Court issued its opinion in Oneok, the Legislature returned to the
issue of whether gas gatherers should be locally or centrally assessed. It created a Task Force
on Valuation of Gas Gathering Systems Assets,
consisting of three legislators from each chamber, to study the issue and make recommendations. Laws 2002, c. 265, §1, emergency effecVol. 78 — No. 25 — 9/15/2007
¶13 Section 2851.3 does not address this situation. When legislative intent cannot be ascertained from the language of a statute, we must
apply rules of statutory construction. The fundamental rule of statutory construction is to
ascertain and give effect to the legislative
intent, looking first to the language of the statute. YDF, Inc. v. Schlumar, Inc., 2006 OK 32, 136
P.3d 656, 658. Constitutional and statutory provisions on the same subject matter should be
construed together as part of a coherent system. Cowart v. Piper Aircraft Corp., 1983 OK 66,
665 P.2d 315, 317.
¶14 Section 2851.3 could be construed to
direct the State Board of Equalization to assess
the assets CEMI acquired from Enco and the
county assessor to assess CEMI’s remaining
assets. However, the State Board of Equalization’s authority under the Oklahoma Constitution, Art. X, §21, is to “assess all railroad and
public service corporation property.” Its authority is defined by the class of owner, not the
class of property. It does not have the authority
to assess the property of owners other than
railroads and public service corporations. In
order to construe §2851.3 consistently with the
Oklahoma Constitution and to give effect to
the legislative intent of preserving the 2002
status quo, we must interpret §2851.3 as prohibiting any change in the treatment of companies owning gas gathering assets.
2331
¶15 In 2002, Enco was assessed centrally as a
public service corporation, while CEMI was
assessed locally and not treated as a public
service corporation. Following Enco’s purchase, Enco ceased to exist and CEMI is the
surviving company. Therefore, it is CEMI’s status quo that must be preserved. State’s attempt
to reclassify CEMI as a public service corporation for ad valorem tax treatment violated the
legislative moratorium of §2851.3. Accordingly,
we AFFIRM the trial court’s order.
2007 OK CIV APP 80
OCTAVIO RODRIQUEZ, Petitioner, v.
JOHNSTON’S PORT 33, GRAY
INSURANCE COMPANY, and THE
WORKERS’ COMPENSATION COURT,
Respondents.
No. 103,603. August 3, 2007
PROCEEDING TO REVIEW AN ORDER OF
A THREE-JUDGE PANEL OF THE
WORKERS’ COMPENSATION COURT
VACATED AND REMANDED
Richard L. Peaster, RICHARD L. PEASTER &
ASSOCIATES, Tulsa, Oklahoma, for Petitioner,
Tenal S. Cooley, LOONEY, NICHOLS & JOHNSON, Oklahoma City, Oklahoma, for Johnston’s
Port 33 and Gray Insurance Company.
OPINION
ADAMS, Judge:
¶1 Claimant Octavio Rodriquez asks us to set
aside an order of the Workers’ Compensation
Court which dismissed his claim against Johnston’s Port 33 (Employer, collectively with its
insurance carrier, Gray Insurance Company)
under 85 O.S.2001 § 43(B).1 Because we agree
with Claimant that the three-year period provided in § 43(B) did not begin to run until the
date he last received Employer-provided medical treatment for his injury, we vacate the order
and remand the case.
¶2 Once a workers’ compensation claim has
been filed, § 43(B) requires a claimant to request,
in good faith, a final determination of the claim
within three years of the later of the date the
claim was filed or the date of last “payment of
compensation or wages in lieu thereof” regarding the alleged injury. Claimant presented
undisputed evidence that he received medical
treatment provided by Employer on October 1,
2003. He first filed a Form 9 requesting a final
2332
determination of permanent disability on
November 10, 2005, less than three years later.
¶3 The order and Employer’s argument for
dismissal rests on the faulty conclusion that the
phrase “payment of compensation or wages in
lieu thereof” does not encompass medical treatment provided by an employer. Interpreting
this same statutory language, the Oklahoma
Supreme Court held in Bowling v. Blackwell Zinc
Company, 1959 OK 262, ¶0, 347 P.2d 1022, that
“the furnishing of medical treatment to claimant by employer in connection with the injury
for which claim was filed is the equivalent of
‘payment of compensation,’ and is sufficient to
toll the statute.”
¶4 Employer’s brief does not address Bowling,2 but it does argue that the Legislature’s
1977 amendment of 85 O.S.2001 § 43(A) to
expressly include medical treatment furnished
by the employer as a starting date of the twoyear statute of limitations for filing a workers’
compensation claim indicates there was no
intent to include it in § 43(B).3
¶5 The Legislature must be presumed to be
aware of and familiar with extant judicial construction of the statutory language construed
in Bowling. TXO Production Corporation v. Oklahoma Corporation Commission, 1992 OK 39, 829
P.2d 964. However, it made no effort to alter
this language when it adopted the 1977
amendment to § 43(A). We will not presume an
intent to reject Bowling’s construction from its
silence.
¶6 Bowling’s holding is also unaffected by
White v. Weyerhaeuser Company, 1990 OK 98, 798
P.2d 623, and Ellington v. Horwitz Enterprises,
2003 OK 37, 68 P.3d 983, cases cited by Employer. Neither case addressed this question, and in
neither case does it appear that the date of
employer-furnished medical treatment was
later than the date the claimant last received
temporary disability compensation.
¶7 We are bound to follow the statutory
interpretation adopted in Bowling, and therefore must conclude Claimant complied with
the requirements of § 43(B) when he filed his
Form 9 requesting a determination of permanent disability within three years of the last
date Employer furnished him with medical
care regarding the injury upon which his claim
is based. The order dismissing his claim is
vacated, and the case is remanded to the
Workers’ Compensation Court for further
proceedings.
VACATED AND REMANDED
Vol. 78 — No. 25 — 9/15/2007
BELL, J., (sitting by designation, concurs;
MITCHELL, V.C.J., dissents.
1. As pertinent here, this section provides:
B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith
request a hearing and final determination thereon within three (3)
years from the date of filing thereof or within three (3) years from the
date of last payment of compensation or wages in lieu thereof, same
shall be barred as the basis of any claim for compensation under the
Workers’ Compensation Act and shall be dismissed by the Court for
want of prosecution, which action shall operate as a final adjudication
of the right to claim compensation thereunder.
2. This may not be surprising because Claimant did not cite Bowling either, rather relying on general principles of statutory construction
and definitions to argue that “compensation” includes an employer’s
payment for medical care.
3. The 1977 amendment made no change in the practical application of § 43(A) because it had long been held that the voluntary furnishing of medical care by the employer tolled the statute of limitations for filing a claim. See Moore v. Tom Morris Enterprises, 1976 OK 25,
547 P.2d 966.
2007 OK CIV APP 81
IN THE MATTER OF THE ESTATE OF
LUTHER ELMER NELSON, Deceased.
MICHAEL ELMER NELSON, Appellant, v.
DEBORAH L. BILLINGS, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
LUTHER ELMER NELSON, Appellee.
No. 103,816. April 11, 2007
BRYAN COUNTY, OKLAHOMA
HONORABLE MARK CAMPBELL,
DISTRICT JUDGE
REVERSED WITH DIRECTIONS
Vestor Songer, Hugo, Oklahoma, for Appellant,
David W. Kelley, Durant, Oklahoma, for Appellee.
DOUG GABBARD II, PRESIDING JUDGE:
¶1 Appellant, Michael Elmer Nelson, appeals
the trial court’s denial of his objections to, and
its approval of, the final account and petition
for distribution filed by Appellee, Deborah L.
Billings, Personal Representative of the Estate
of Luther Elmer Nelson, deceased. We reverse
with directions.
BACKGROUND
¶2 In December 2004, Luther Elmer Nelson
died, leaving three adult children: Appellee,
Deborah L. Billings; Appellant, Michael Elmer
Nelson; and Stephen Mark Nelson. In his Last
Will and Testament, Mr. Nelson made a specific bequest of realty to each child; directed
that any mineral interest he owned be divided
equally among his children, share and share
Vol. 78 — No. 25 — 9/15/2007
alike; and further directed that the residue of
his estate be distributed equally to his three
grandchildren, share and share alike. Mr. Nelson also designated Appellee as his personal
representative and gave her the power to sell
or mortgage any part of his real estate which
she deemed “expedient and necessary” and
“for the best interest of my estate.”
¶3 In early 2005, Appellee filed a probate
action, was appointed personal representative,
and obtained an order determining the heirs
and devisees of decedent as set forth in his Last
Will and Testament. Thereafter, she determined
that the estate only consisted of the realty specifically distributed to herself and her siblings,
plus a small bank account. Although the estate
was exempt from payment of estate and inheritance taxes, it became obvious that the costs
and expenses of administration would exceed
the amount of funds contained in the bank
account. Accordingly, Appellee sought and
received permission of the court (over Appellant’s objection)to sell a pipeline easement over
the realty specifically devised to Appellant.
Appellant did not appeal this order. The sale
was conducted, and, eventually, the costs and
debts of administration were paid.
¶4 However, when Appellee filed her final
account and petition for distribution, she
requested that the sale funds remaining after
payment of administration costs be considered
residue of the estate and be distributed to Mr.
Nelson’s three grandchildren. Appellant objected, claiming that he was not only entitled to
the balance of the sale proceeds, but that he
was also entitled to ratable contribution from
Appellee and his brother for administration
expenses paid out of his specific devise.
¶5 The trial court overruled Appellant’s
objection and approved the final account and
petition for distribution. The trial court also
approved attorney fees sought by Appellee in
connection with the objections filed by
Appellant. Appellant appeals.
STANDARD OF REVIEW
¶6 Probate proceedings are generally of equitable cognizance, which means that an appellate court will not disturb the trial court’s order
unless it is clearly contrary to the weight of the
evidence. In re Estate of Maheras, 1995 OK 40,
¶7, 897 P.2d 268, 271-72. However, an appellate
court must independently review questions of
law using a de novo standard. Weeks v. Cessna
Aircraft, 1994 OK CIV APP 171, ¶5, 895 P.2d
2333
731, 733 (approved for publication by the
Supreme Court).
APPELLEE’S MOTION TO DISMISS
¶7 As an initial matter, Appellee asserts that
this appeal should be dismissed pursuant to
Supreme Court Rule 1.6(c)(1), 12 O.S.2001, ch.
15, app. 1, for Appellant’s failure to give notice
of the petition in error to all necessary parties
in this case. That rule provides that an appeal
may be dismissed for, among other things, failure to comply with Supreme Court rules. Here,
Appellant gave notice of the petition in error to
Appellee, but not to his brother, Stephen Mark
Nelson, or the three grandchildren who are
residuary heirs. Appellee argues that failure to
provide proper notice to all necessary parties is
a jurisdictional defect entitling her to a dismissal, see Tinker Investments and Mortgage
Corp. v. City of Midwest City, 1994 OK 41, 873
P.2d 1029. This motion presents a matter of first
impression.
¶8 Under Oklahoma’s probate code, a personal representative must file a final account,
give notice thereof to all “heirs, legatees and
devisees,” and if “any person interested”
appears and files a written exception thereto,
the court must proceed to hear same. 58 O.S.
2001 §§541, 553, & 554. The probate court’s
order approving or disapproving a final account
and petition for discharge is appealable by
right. 58 O.S.2001 §721. Probate appeals are
taken as appeals in other district court cases. 58
O.S.2001 §724. Supreme Court Rule 1.23(c) provides that a copy of the petition shall be filed in
the trial court and mailed to “each party to the
appeal.” It further provides:
Parties served with process or entering a
general appearance in the trial court constitute parties to the appeal.
party” entitled to notice and a right to object to
final accounts, and a “party” to a probate
proceeding.
¶10 In Anderson v. Miller, 1958 OK 67, 324
P.2d 856, the Supreme Court noted that the use
of the term “a party to the . . . proceeding” as
used in what is now 58 O.S.2001 §723 (a statute
authorizing motions to vacate certain probate
orders) refers to interested parties who actually
appear and take an active part in the contested
proceedings. The court held that the heirs’ failure to take an active part in the proceeding
placed them in the category of “persons
interested . . . who were not parties to the . . .
proceeding.” Id. at ¶7, 324 P.2d at 860.
¶11 Generally, a personal representative represents the interests of all the heirs. In Jameson
v. Goodwin, 1914 OK 296, 141 P.767, the appellant had filed suit against the administrator of
an estate and had joined all the heirs of the
decedent as defendants. However, on appeal
from an adverse judgment the appellant failed
to give notice of his petition in error to one of
the defendants/heirs. Upon considering a
motion to dismiss, the Supreme Court found
that the heirs were not necessary parties in the
trial court and, therefore, were not necessary
parties entitled to notice on appeal.
¶12 In the present case, the other heirs, devisees, and legatees of the decedent did not take
an active part or enter their appearance in the
hearing on Appellant’s objection to the final
account and petition for distribution, were not
opposing litigants in the trial court, and, therefore, were not necessary parties to this appeal.
Accordingly, the motion to dismiss is overruled.
ANALYSIS OF APPELLATE ISSUES
Similarly, Supreme Court Rule 1.4(g), 12 O.S.
Supp. 2006, ch.15, app.1, provides that an
appellant must give proper notice of his petition in error to those persons entitled to notice
under 12 O.S.2001 §2005(B). Under §2005(A),
service of every pleading must be made upon
“each of the parties.”
¶13 On appeal, Appellant raises two propositions of error: first, the trial court erred by failing to order contribution from the other two
specific devisees at the time of the final account;
and, second, the trial court erred in granting
Appellee an attorney fee for contesting Appellant’s request for contribution.
¶9 As indicated, under 58 O.S.2001 §554, any
“party interested in the estate” may file a written objection to a final account and petition for
distribution. The term “interested party”
includes the heirs, devisees, legatees, and,
sometimes, creditors of the estate. Williams v.
Mulvihill, 1993 OK 5, n.25, 846 P.2d 1097, 1104.
However, the Supreme Court has long recognized the distinction between an “interested
¶14 Under 84 O.S.2001 §3, estate debts,
administration expenses, and family allowances must be paid from estate property in the
following order:
2334
1. The property which is expressly appropriated by the will for the payment of the
debts,
2. Property not disposed of by the will,
Vol. 78 — No. 25 — 9/15/2007
3. Property which is devised or bequeathed
to a residuary legatee,
4. Property which is not specifically devised
or bequeathed, and,
5. All other property ratably. (Emphasis
added).
Title 58 O.S.2001 §471 authorizes the payment
of debts and expenses from specific devises or
legacies in proportion to the value of same:
The estate, real and personal, given by will
to legatees or devisees, is liable for the
debts, expenses of administration, and
family expenses, in proportion to the value
or amount of the several devises, or legacies, but specific devises or legacies are
exempt from such liability if it appears to
the court necessary to carry into effect the
intention of the testator, and there is other
sufficient estate. (Emphasis added).
Title 58 O.S.2001 §472 further provides:
When an estate given by will has been sold
for the payment of debts or expenses, all
the devisees and legatees must contribute
according to their respective interests to
the devisee or legatee whose devise or
legacy has been taken therefor, and the
district court, when distribution is made,
must, by decree for that purpose, settle the
amount of the several liabilities, and decree
the amount each person shall contribute,
and reserve the same from their distributive shares respectively, for the purpose of
paying such contribution. (Emphasis
added).
¶15 In Tapp v. Mitchell, 1960 OK 135, ¶23, 352
P.2d 900, 904, the Supreme Court explained:
The weight of authority holds that, on deficiency of assets for payment of debts and
expenses of the estate, specific legacies and
devises abate ratably unless a different
intent clearly appears from the will. See 42
A.L.R. 1519. Our statutes support this rule.
The provisions of probate code, 58 O.S.
1951 §§381, 463, 471, as well as 84 O.S.1951
§2, clearly charge all of decedent’s property, without distinction between personalty
and realty, with liability for payment of
debts and expenses. Where there is insufficiency of other funds which precede in
order of resort, a reduction or abatement of
specific testamentary gifts must take effect
in proportion to the value or amount of the
several such devises or legacies. 84 O.
S.1951 §3, subdivision 4; 58 O.S.1951 §471.
Vol. 78 — No. 25 — 9/15/2007
The measure of liability is the value of
respective properties at the testator’s death.
Haslem v. De Alvarez, 70 R.I. 212, 38 A.2d
158.
Tapp has been consistently followed by Oklahoma courts. See In re Estate of MacFarline, 2000
OK 87, 14 P.3d 551. Thus, absent clear testamentary intent to the contrary, the statutory
provisions for contribution are mandatory. In
re Fletcher’s Estate, 1957 OK 7, 308 P.2d 304.
¶16 In the present case, Appellant was clearly
entitled to contribution from the other two specific devisees for administration expenses paid
from his devise. The will’s grant of an unconditional power of sale to Appellee cannot be
construed as testamentary intent granting her
the discretionary authority to assess costs and
expenses to the heirs, devisees, or legatees of
her choice. Such a rule would empower a personal representative to defeat a testator’s
expressed intent. This would be contrary to the
probate code’s stated goal. See 84 O.S.2001
§151.
¶17 Nor did Appellant waive contribution
by failing to appeal the trial court’s order
authorizing the sale of the pipeline easement.
Indisputably, the estate had insufficient assets
to pay expenses of administration, and the sale
of a portion of one or more tracts of realty was
necessary. However, Appellant’s right of contribution under 58 O.S.2001 §472 did not arise
until after the sale occurred, the costs of administration were calculated and paid, and distribution was requested.
¶18 Finally, Appellee’s action in resisting
Appellant’s objection and request for contribution was without authority and contrary to
clear statutory mandate. The trial court erred
in granting her an attorney fee for contesting
such objection.
CONCLUSION
¶19 Accordingly, Appellee’s motion to dismiss is denied. The trial court’s order overruling Appellant’s objection and approving
Appellee’s final account and petition for distribution is hereby reversed, with directions that
the trial court require Appellee and Stephen
Mark Nelson to ratably contribute to the payment of the administration expenses. The trial
court’s award of an attorney fee to Appellee
shall be made without including the expenses
incurred in contesting Appellant’s objection to
the final account and petition for distribution.
2335
¶20 REVERSED WITH DIRECTIONS.
GOODMAN, J., and REIF, J., concur.
2007 OK CIV APP 82
NAT D. RHYNES and JOY A. RHYNES, a/k/a
JOY SANDERS RHYNES, Plaintiffs/
Appellants, v. EMC MORTGAGE
CORPORATION, BANKERS TRUST
COMPANY OF CALIFORNIA, NA and
UNITED COMPANIES LENDING
CORPORATION, Defendants/Appellees.
No. 104,177. August 3, 2007
LOGAN COUNTY, OKLAHOMA
HONORABLE DONALD L.
WORTHINGTON, TRIAL JUDGE
AFFIRMED
Frank Gregory, Gregory Law Office, Oklahoma
City, Oklahoma, for Plaintiffs/Appellants,
O. Saul Reid, LAMUN MOCK CUNNYNGHAM & DAVIS, Oklahoma City, Oklahoma,
for Defendants/Appellees.
OPINION
ADAMS, Judge:
¶1 Nat D. Rhynes and Joy Rhynes (Landowners) seek reversal of a trial court order
sustaining a summary judgment motion filed
by EMC Mortgage Corporation, Bankers Trust
Company of California, NA, and United Companies Lending Corporation (collectively,
Defendants) and granting Defendants judgment on Landowners’ claim. According to
Landowners, Defendants were liable under 46
O.S.2001 §15,1 because Defendants did not
timely release liens created by fixture filings
after the debt was paid. Because we conclude
the liens created by such filings are not within
the language of §15, we affirm.
¶2 In determining whether summary adjudication was appropriate, we must examine the
pleadings, depositions, affidavits and other
evidentiary materials submitted by the parties
and affirm is there is no genuine issue as to any
material fact and Defendants were 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 Landowners. Ross v. City of Shawnee,
1984 OK 43, 683 P.2d 535. We are limited to the
2336
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.
¶3 It is undisputed that the debts secured by
Landowners’ 1994 and 1995 mortgages with
United Lending were paid in full and both
mortgages timely released of record. It is also
undisputed that Uniform Commercial Code
(UCC) financing statements or “UCC fixture
filings” which had also been filed in Logan
County, covering two different mobile homes
which were affixed to the mortgaged real property, were not timely released.
¶4 The sole issue Landowners raise in their
appeal is “whether actual clouds on real estate
titles are addressed by [§15].” (Emphasis in
original.) Considering the arguments made to
the trial court and that the term “cloud”
includes several different types of encumbrances, we conclude the dispositive issue here
is whether the statutory penalty provided by
§15 may be imposed against a creditor for failure to timely release a UCC fixture filing.
¶5 Oklahoma courts have long held that §15
is a penal statute and that it must be strictly
construed, which as applied to §15, means
refusing to extend the law by implication or
equitable considerations and confining its
operations to cases clearly within the letter of
the statute, as well as within its spirit or reason.
Walker v. Duncan, 1970 OK 86, 469 P.2d 647;
Walker v. Dugger, 1962 OK 88, 371 P.2d 910; Bullington v. Lowe, 1923 OK 978, 221 P. 502; Arnold
v. Federal Bank for Savings, 2001 OK CIV APP
139, 37 P.3d 960. The remedy and measure of
damages provided by §15 for failing to release
a mortgage is exclusive. Pittsburg Mortgage
Investment Company v. Cook, 1931 OK 447, 1 P.2d
665.
¶6 Landowners do not argue §15 is ambiguous or explain why we should extend §15 to
any document other than the one to which it
expressly refers — “mortgage on real estate.”
They concede §15 does not mention or refer to
UCC fixture filings, but contend that does not
matter because “the Legislature clearly intended the statute to apply in this very situation,”
i.e., “when a mortgage company . . . failed to
release a ‘cloud’ or ‘encumbrance,’ even though
the underlying debt had been paid.”
¶7 However, their argument ignores the
requirement of strict construction of §15, which
Vol. 78 — No. 25 — 9/15/2007
the Court followed when deciding §15’s predecessor did not apply to a warranty deed given
as security for payment of a debt although by
law it is deemed to be a mortgage, because a
deed lacks a defeasance agreement, does not
stand on the record as a mortgage, and is
not included in the clear language of section 7642 [§15’s predecessor]. That section
does not contemplate the release of mortgage liens, but the release of the recorded
mortgage after the lien has been satisfied
by payment of the debt for the purpose of
removing a cloud from the record title. It
applies to mortgages only. (Emphasis
added.)
Bullington v. Lowe, 1923 OK 978, ¶7, 221 P. 502,
503.
¶8 Landowners do not dispute, disagree or
in any way raise error with the trial court’s
finding that the relevant instruments of record
are valid UCC fixture filings. As such, our position that §15’s penalty for failure to release a
mortgage does not apply to the UCC fixture
filings is further supported by the Legislature’s
treatment of mortgages and fixture filings as
different instruments. See 12A O.S.2001 §1-9502 and §1-9-515.
¶9 The trial court correctly concluded from
the undisputed facts that §15 does not apply to
the UCC fixtures filings. The trial court’s judgment is affirmed.
AFFIRMED
JOPLIN, P.J., and MITCHELL, V.C.J., concur.
1. Section 15, entitled “Holder must release — Penalty — Mortgagor defined,” provides:
A. Any mortgage on real estate shall be released by the holder of
any such mortgage within fifty (50) days of the payment of the debt
secured by the mortgage and the holder of the mortgage shall file the
release of the mortgage with the county clerk where the mortgage is
recorded. If, at the end of the fifty-day period, the holder has failed to
release the mortgage, the mortgagor may at any time request in writing the holder of the mortgage to release the mortgage and the holder
of the mortgage shall have ten (10) days from the date of the request to
release such mortgage. If the holder of the mortgage fails to release the
mortgage by the end of such ten-day period, he shall then forfeit and
pay to the mortgagor a penalty of one percent (1%) of the principal
debt not to exceed One Hundred Dollars ($100.00) per day each day
the release is not recorded after the ten-day period has expired and the
penalty shall be recovered in a civil action in any court having jurisdiction thereof, but the request for the release shall be in writing and
describe the mortgage and premises with reasonable certainty. Provided that, the total penalty shall not exceed one hundred percent
(100%) of the total principal debt.
7 Hours CLE, 1 Hour Ethics - Only $90!
Helping Your Older Clients
Live & Die with Dignity
Friday, October 12, 2007
8:15a.m. - 4:30p.m.
OSU-OKC Student Center, 3rd Floor
Regular Registration : $115
Early Registration: $90 (deadline: Oct. 1)
TOPICS: Understanding Alzheimer’s Overcoming Challenges of Medicaid Eligibility When
Mom & Dad Need More Help People of Faith
Facing Illness & Death Continuum of Care
Retirement Centers New Advance Directive
Law & Other Ethical Issues Regarding Incapacity
Notice to Attorneys
If you are probating or in the process
of probating a testate estate, or have
prepared wills, trust instruments or other
instruments of benefit or in the process of
preparing such instruments, all of which
may include one or more of the following
as beneficiaries or devisees:
n
The former Oklahoma Christian Home, Edmond, OK
n
NBA Oklahoma Christian Home, Edmond, OK
n
Oklahoma Christian Retirement Community,
Edmond, OK
n
NBA
Oklahoma Christian Retirement Community,
Edmond, OK
PRESENTERS: Marcy Gardenhire Travis Smith, JD
n
Fellowship of John
Norma Goff, RN, MS Mary Pinzon, RN, M.Ed.
Please contact one of the following individuals.
Carlos Woodard, Th.D. Kenneth Benton, M.Ed., NHA
Annette Prince, JD, LCSW Catheryn Koss, JD
For more information, call (405) 528-0858 or email
[email protected].
Rev. Thomas R. Jewell
(405) 528-3577 • [email protected]
Rev. Kyle V. Maxwell
Mr. Bernie McNickle
Register Online at www.POEMSS.org
Vol. 78 — No. 25 — 9/15/2007
2337
BAR NEWS
2008 OBA Board of Governors
Vacancies
Nominating Petition Deadline was 5 p.m. Friday, Sept. 7, 2007
OFFICERS
President-Elect
Current: J. William Conger, Oklahoma City
Mr. Conger automatically becomes OBA president
Jan. 1, 2008
(One-year term: 2008)
Nominee: Jon K. Parsley, Guymon
Vice President
Current: Jack S. Dawson, Oklahoma City
(One-year term: 2008)
Nominee: Michael C. Mordy, Ardmore
BOARD OF GOVERNORS
Supreme Court Judicial District Two
Current: Michael W. Hogan, McAlester
Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, Marshall, McCurtain, McIntosh, Pittsburg, Pushmataha and Sequoyah counties
(Three-year term: 2008-2010)
Nominee: Jerry L. McCombs, Idabel
Supreme Court Judicial District Eight
Current: R. Victor Kennemer III, Wewoka
Coal, Hughes, Lincoln, Logan, Noble, Okfuskee,
Payne, Pontotoc, Pottawatomie and
Seminole counties
Nominee: James T. Stuart, Shawnee
Supreme Court Judicial District Nine
Current: Dietmar K. Caudle, Lawton
Caddo, Canadian, Comanche, Cotton, Greer,
Harmon, Jackson, Kiowa and Tillman counties
Nominees: W. Mark Hixson, Yukon
O. Christopher Meyers II, Lawton
Member-At-Large
Current: Robert B. Sartin, Tulsa
Nominee: Jack L. Brown, Tulsa
2338
Vacant positions will be filled at the OBA Annual
Meeting Nov. 7 - 9. Terms of the present OBA officers and governors listed will terminate Dec. 31,
2007.
Summary of Nominations Rules
Not less than 60 days prior to the Annual Meeting,
25 or more voting members of the OBA within the
Supreme Court Judicial District from which the
member of the Board of Governors is to be elected
that year, shall file with the Executive Director, a
signed petition (which may be in parts) nominating
a candidate for the office of member of the Board of
Governors for and from such Judicial District, or one
or more County Bar Associations within the Judicial
District may file a nominating resolution nominating
such a candidate.
Not less than 60 days prior to the Annual Meeting,
50 or more voting members of the OBA from any or
all Judicial Districts shall file with the Executive
Director, a signed petition nominating a candidate to
the office of Member-At-Large on the Board of Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for this
office.
Not less than 60 days before the opening of the
Annual Meeting, 50 or more voting members of the
Association may file with the Executive Director a
signed petition nominating a candidate for the office
of President-Elect or Vice President or three or more
County Bar Associations may file appropriate
resolutions nominating a candidate for the office.
See Article II and Article III of OBA Bylaws for
complete information regarding offices, positions,
nominations and election procedure. Bylaws are
printed in the OBA 2007 Reference Guide (OBJ
Vol. 78, No. 4 January 27, 2007) and election
information appears on pages 251-253.
Vol. 78 — No. 25 — 9/15/2007
BAR NEWS
OBA Nominating Petitions
(See Article II and Article III of the OBA Bylaws)
Officers
President-Elect
Jon K. Parsley, Guymon
Petitions have been filed nominating Jon K. Parsley for election of President-Elect of the Board of
Governors of the Oklahoma Bar Association for a
one-year term beginning January 1, 2008.
A total of 331 signatures appear on the petitions.
County Bar Resolutions Endorsing Nominee:
Alfalfa, Beaver, Cimarron, Comanche, Craig,
Custer, Harper, Love, Texas and Woodward
County
VICE PRESIDENT
Michael C. Mordy, Ardmore
Petitions have been filed nominating Michael C.
Mordy for election of Vice President of the Board
of Governors of the Oklahoma Bar Association for
a one-year term beginning January 1, 2008.
Carter County
Board of Governors
Supreme Court
Judicial District Two
Jerry L. McCombs, Idabel
Petitions have been filed nominating Jerry L.
McCombs for election of the Board of Governors
representing Supreme Court Judicial District 2 of
the Oklahoma Bar Association for a three-year
term beginning January 1, 2008.
Choctaw, McCurtain, LeFlore, Pittsburg and
Pushmataha County
Supreme Court
Judicial District Nine
W. Mark Hixson, Yukon
Petitions have been filed nominating W. Mark Hixson for election of the Board of Governors representing Supreme Court Judicial District 9 of the
Vol. 78 — No. 25 — 9/15/2007
Oklahoma Bar Association for a three-year term
beginning January 1, 2008.
Canadian County
SUPREME COURT
JUDICIAL DISTRICT EIGHT
James T. Stuart, Shawnee
Petitions have been filed nominating James T.
Stuart for election of the Board of Governors representing Supreme Court Judicial District 8 of the
Oklahoma Bar Association for a three-year term
beginning January 1, 2008. Twenty-five of the
names thereon are set forth below:
Cynthia Ferrell Ashwood, Barney K. Barnett,
John G. Canavan Jr., Michael D. Clover, Dan Alan
Erwin, Jon D. Flowers, William Scott Haselwood,
Charles M. Laster, Larry K. Lenora, James R.
Marshall, Joseph E. McKimmey, Kermit M. Milburn, Marianne Miller, Steven L. Parker, Jim Cole
Pettis, Mark J. Pordos, Pamela M. Snider Stephens, Gregory A. Upton, Joseph Michael Vorndran, Brandon D. Watkins, Cregg D. Webb, Terry
W. West, Brad C. West, Randall J. Wiley, and
Miles C. Zimmerman.
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.
Comanche County
Member-At-Large
Jack L. Brown, Tulsa
Petitions have been filed nominating Jack L. Brown
for election of the Board of Governors representing
Members at Large of the Oklahoma Bar Association for a three-year term beginning January 1,
2008.
2339
OBA/CLE Annual Meeting 2007
November 7
DAY 1
Family Law
Criminal Law
Transactional
Law
Nuts & Bolts
Litigation
WEDNESDAY
Registration
8 - 9 a.m.
Program Planners/
Moderators
Program Planners/
Moderator
Program Planners/
Moderators
Program Planners/
Moderators
Program Planners/
Moderators
Lynn Worley
Ben Brown
Charlie Sifers
Guy Jackson
LeAnne McGill
Renee DeMoss
Session 1
9 - 9:50 a.m.
All the World is a
Stage: The Family
Law Ethics
Players
(ethics)
The Overture:
Handling Juvenile
Delinquent &
Youthful Offender
Cases
Issues with a Digital Office
Anatomy of a
Trial: A Dramatic
Run Through
Choreograph
for Success: Litigation Tactics Dos
and Don’ts
Jim Calloway
J. William Conger
Rene Gish
Ben Brown
Valerie Baker
Jennifer Chance
Session 2
Handling the
10 - 10:50 a.m. Family Law Case
Involving Military
Personnel An Update
Bill LaSorsa
Session 3
11 - 11:50 a.m.
Basic Guardian
Ad Litem
Noel Tucker
Walk the Line:
Handling a Basic
DUI Case
Charles Sifers
Jeff Sifers
Putting the Parts
Together: Anatomy of a Criminal
Case
Cheryl Ramsey
Dim the Lights:
Issues in
Winding Down a
Law Practice
Gina Hendryx
(ethics)
Bringing Down
the House:
Recent Issues
with Real Estate
Titles
TBA
Selecting the Best
Entity for Your
Firm or Business
Gary W. Derrick
Judge Patricia
Parrish
The Grand
Finale: How to
Negotiate and
Settle a Case
Ed Able
Everyday Ethical
Dilemmas: What
Would You Do?
A Close Up:
Basic HIPAA for
Litigators
Gina Hendryx
(ethics)
Teresa Burkett
12-2 p.m. LUNCH (On your own)
Session 4
2 -2:50 p.m.
2340
It Takes a Village:
Grand parental
Rights Law An Update
Setting the Stage:
The Anatomy of
a Writ and a
Criminal Appeal
Mark Zannotti
Cindy Danner
(tentative)
Critical Review:
Top 10 Dos and
Don’ts in Probate
and Guardianship
Practices
Spotlight on
Persuasion:
Writing Briefs
that Win Your
Case
Judge Linda
Morrissey
Judge Theresa
Dreiling
Judge Sheila
Condren
Debra McCormick
Take a Cue:
Electronic
Discovery and
Litigation Today
Magistrate Judge
Sam Joyner
Vol. 78 — No. 25 — 9/15/2007
OBA/CLE Annual Meeting 2007
cont’d
Session 5
3 - 3:50 p.m.
Family Law
Criminal Law
Transactional
Law
Nuts & Bolts
Child Support in
High Income
Cases
It’s About
Timing:
Representing
Defendants
Charged in Accelerations and
Revocations Cases
Professor Wizard
and the Magic
Wiffle Dust Avoiding an
Explosion in
Asset Protection
Effective File
Management:
From Paper to
Electronic
Systems
Rees Evans
Kent Bridge
Session 6
4 - 4:50 p.m.
50 Hot Tips:
Technology to
Improve Your
Practice
Fourth Amendment Focus: A
Search & Seizure
Primer
Panel Discussion
Jim Hughes
Guy Jackson
There Aren’t Any
Small Businesses,
Just Small
Players: Issues in
Representing a
Small Business
David Petty
Jim Calloway
Litigation
Handling the
Talent: CrossExamination of
Expert Witnesses
Ted Sherwood
Best Practices &
Strategies for
Interviewing
Clients and
Witnesses
Give ‘Em the Ole
Razzle Dazzle:
Use of
Technology in the
Courtroom
Robin F. Fields
Dan Morgan
Don Lovy
4:50 p.m. ADJOURN
DAY TWO
November 8
THURSDAY
Registration
8 - 9 a.m.
Topic:
OBA/CLE Isolated Events or
Plenary
System
Failures - A
Session
Discussion of the
9 - 11:50 a.m. Williamson and
Fritz Cases
Vol. 78 — No. 25 — 9/15/2007
Panel Discussion Featuring:
William Peterson, Pontotoc County district attorney
Mark Barrett, defense attorney
Stephen Saloom, policy director for the Innocence Project
Dennis Fritz, exonerated by DNA evidence
David Prater, Oklahoma County district attorney
Christy Shepherd, cousin of the murder victim
Chris Ross, Pontotoc County first assistant district attorney
2341
2007 Annual Meeting Registration Form
Please complete a separate form for each registrant.
________________
Name ________________________________________ E-mail ________________
______________
No.
Bar
______
Badge Name (if different from roster) ________________________
______________________
Address ________________________________________________________
______________________
City ______________________ State ____ Zip _______________ Phone
__________________
Name of Non-Attorney Guest___________________________________________
❑ No
Please change my OBA roster information to the information above. ❑ Yes
Check all that apply:
❑ Judiciary ❑ OBF Fellow ❑ OBF Past President ❑ OBA Past President ❑ YLD Officer ❑ YLD Board Member ❑ YLD Past President
❑ Board of Bar Examiner ❑ 2007 OBA Award Winner ❑ Delegate ❑ Alternate ❑ County Bar President: County _______________________
❑ YES! Register me for the 2007 Annual Meeting, November 7, 8 & 9, in Oklahoma City.
Events will be held at the Sheraton Hotel. Registration fee includes continental breakfast in hospitality area, President’s Reception
ticket(s), The Sweet Sounds of Sinatra, convention gift, Vendors Expo, Art Contest and Viva Las Vegas Casino Night.
n MEMBER:
❑ $50 through Oct. 12; $75 after Oct. 12......................................................... $ __________
n NEW MEMBER
(Admitted after Jan. 1, 2007): ❑ Free through Oct. 12; $15 after Oct. 12 ................ $ __________
n LAW STUDENT DIV. ❑ $25 through Oct. 12; $35 after Oct. 12 ........................................................ $ __________
❑ I will submit an entry (or entries) in the Art Contest. (Submit art registration form by Oct. 12.
Entry fee included in meeting registration.)
❑ I will participate in the OBA Walk that benefits Lawyers Helping Lawyers ( ___ tickets @ $10 each) ............ $ __________
I will be attending/participating in the following ticketed events in addition
to my registration fee for Annual Meeting:
❑ WED. & THURS.: CLE Multitrack
( ___ [0 or 1] ticket @ $150 through Oct.12; $175 after Oct. 12;
and Plenary
$50 for new members through Oct. 12, $75 after Oct. 12) .... $ ____________
❑ THURSDAY & FRIDAY:
( ___ [0 or 1] ticket @ $150 through Oct. 12; $175 after Oct. 12;
CLE Plenary and Recent Developments $50 for new members through Oct. 12, $75 after Oct. 12). ... $ ____________
❑ WED., THURS. & FRI.: CLE
( ___ [0 or 1] ticket @ $250 through Oct.12; $275 after Oct. 12;
$75 for new members through Oct. 12, $100 after Oct. 12) ..... $ __________
❑ THURSDAY: Annual Luncheon
( ___ number of tickets @ $30 each)....................................... $ __________
❑ FRIDAY: President’s Breakfast
( ___ number of tickets @ $20 each)....................................... $ __________
❑ Please check here, if under the Americans with Disabilities Act you require specific aids
or services during your visit to the OBA Annual Meeting. ❑ Audio ❑ Visual ❑ Mobile (Attach a written description of your needs.)
I will be attending the following ticketed events that do NOT require Annual Meeting registration:
❑ WEDNESDAY: Law School Luncheon – (check one)
❑ OCU ❑ OU ❑ TU
( ___ number of tickets @ $30 each........................................ $ __________
TOTAL $ __________
❑ THURSDAY: I will attend the Free Mental Health CLE seminar at 3 p.m.
THREE WAYS TO REGISTER
ent
n MAIL this registration form with paym
or credit card info to:
OBA Annual Meeting
P.O. Box 53036
Okla. City, OK 73152
FAX this registration form with credit card
information to: (405) 416-7092.
n ONLINE at www.okbar.org (soon)
ds
n CANCELLATION POLICY Full refun
ds
refun
No
26.
Oct.
gh
throu
given
will be
line.
will be issued after dead
2342
PAYMENT OPTIONS:
❑ Check enclosed: Payable to Okla. Bar Association
Credit card:
❑ VISA
❑ Mastercard
Card #______________________________________________________________
Exp. Date____________________________________________________________
Authorized Signature
____________________________________________________________________
HOTEL ACCOMMODATIONS:
Fees do not include hotel accommodations. For reservations contact: Sheraton
Hotel at (405) 235-2780. Call by Oct. 15 and mention hotel code: OK BAR
for a special room rate of $89 per night. For hospitality suites, contact Craig
Combs at (405) 416-7040 or e-mail: [email protected].
Vol.78—No.25—9/15/2007
2007 OBA ATTORNEY ART SHOW
REGISTRATION FORM
Deadline: Noon on Oct. 12, 2007
(No registrations will be accepted after this deadline)
Return form with
gistration fee to: OK 73152
Annual Meeting re
oma City,
P.O. Box 53036 • Oklah
ion •
Oklahoma Bar Associat
____________
____________________
_____
Name ______________
____________________
__
__
__
__
__
__
__
r
be
OBA Num
____________
____________________
__
__
__
__
__
__
s
es
dr
___
Ad
__ Zip ____________
__
__
e
at
St
_
__
__
__
__
City ______
_________
_____ Fax __________
__
__
__
__
__
__
__
__
e
Phon
_
____________________
__
__
__
__
__
__
__
__
__
E-mail ______
scribed
t, each of which are de
ar
of
es
ec
pi
_
__
r
te
en
I will
below.
attach
requested below. Please
in detail all information
the
For each entry, complete the required information for entries exceeding
all
th
wi
et
she
nal
an additio
space provided.
Watercolor
Pottery
Name of Piece
Photograph
y
size
The following
categories of art
will be judged:
• Oil Painting
• Acrylic
• Watercolor
• Black and White
Drawing
• Color Drawing
• Black and White
Photograph
• Color Photograph
• Print
• Three Dimensional
(sculptures,
woodwork, etc.)
• Craft (tile work,
stained glass,
needlepoint, etc.)
• Mixed Media
(screenprint,
enhanced
photographs, etc.)
Stained glass
Weight
Description
(only needed if 3-D, Craft,
or Mixed Media)
Vol.78—No.25—9/15/2007
2343
American Idol – OBA Style
An Annual Meeting Event
Wednesday, Nov. 7, 2007 • 9 – 11 p.m.
•Perform one song to wow celebrity judges
•Prizes for first, second & third places
•Limited to 15 individuals or groups
•Groups must include at least 1 OBA member
•Participants provide background music on CD
•OBA performers must register for the meeting
Fill out the form below. Mail to: American Idol – OBA Style, OBA, P.O. Box 53036, OKC 73152
Fax to: 405.416.7001
Scan & e-mail to: [email protected]
Name of act: ________________________________________________________
Your Name: _________________________________________________________
OBA #: ____________________________________________________________
E-mail address: ______________________________________________________
If group, names of other performers:
__________________________________________ OBA # (if applicable) ________
Questions: E-mail [email protected]
2344
Vol. 78 — No. 25 — 9/15/2007
NOTICE
OBA Legal Ethics Advisory Panel
Issues Opinion
Applications requesting its modification, correction, clarification or withdrawal must be made in accordance with
Legal Ethics Advisory Panel rules governing appeals and received by the panel coordinator on or before
October 15, 2007. Unless an application for the revision or withdrawal of an advisory opinion is timely received,
the opinion shall become final.
The rules governing appeals may be found on the OBA Web site at www.okbar.org/news/news_06/EthicsPanel.
htm.
Send comments to Panel Coordinator Roger R. Scott, 525 South Main, Suite 1111, Tulsa, OK 74103.
ADVISORY OPINION 2007 OK LEG ETH 02
Inquiry:
May a law firm or lawyer contract with a client
that an award of attorney fees and costs made in
connection with a discovery dispute authorized
under 12 O.S. § 3237 and Fed. R. Civ. P. 37 be
retained by the lawyer in addition to the agreed
upon contingency fee?
Opinion:
The answer to the Question of the Inquiry is in
the negative. The Oklahoma Supreme Court has
held that it is a violation of Rule 1.5 of the Oklahoma Rules of Professional Conduct for an attorney to collect both the full amount of an agreed
upon contingent fee from the client’s recovery
and an attorney fee awarded either by statute or
settlement. State ex. rel. Oklahoma Bar Ass’n’ v.
Weeks, 1998 OK 83, ¶ 48, 969 P.2d 347, 358. The
public policy concerns expressed by the Oklahoma Supreme Court in Weeks, as well as the
nature of statutory or rule based attorney fee
and cost awards, would indicate that an attorney
is required to offset a sanctions based, attorney
fee award, under 12 O.S. § 3237 or Fed R. Civ. P.
37, from the agreed upon contingency fee agreement amount,1 unless the attorney elects to
receive the full amount of attorney fees awarded
by statute or settlement.
The Nature Of Contingency Fee Agreements.
In Oklahoma, the upper limit for a contingency fee is set by statute at fifty percent (50%) of
Vol. 78 — No. 25 — 9/15/2007
the net amount of the judgment recovered, or
compromise negotiated. 5 O.S. § 7. So long as the
contingency fee agreement is not based on an
illegality, and is not prohibited by statute or rule,
an attorney and client are otherwise free to contract between themselves for the nature and
amount of a contingency fee. State ex rel. Howard
v. Okla. Corp. Com’n, 1980 OK 96, ¶ 21 at n. 5, 614
P.2d 45, 49. Indeed, the only cases in which it
appears that a court refused to enforce a bargained-for contingency fee within the statutory
limit are those in which the contingency fee contract was “obtained by fraud, mistake, undue
influence, or suppression of facts on the part of
the attorney or in a manner contrary to public
policy.” Oklahoma Turnpike Authority v. New Life
Pentecostal Church of Jenks, 1994 OK 9, ¶ 13 at n.
7. 870 P.2d 762, 766.
However, a contingency fee agreement must
be reasonable. Rule 1.5, Oklahoma Rules of Professional Conduct, 5 O.S. Chapter 1, Appendix
3-A. Courts may also refuse to enforce a contingency fee agreement if the fee is excessive. Abel
v. Tisdale, 1980 OK 161, ¶ 16, 619 P.2d 608, 611.
Furthermore, in determining the amount of a
statutory based attorney fee, a court is not bound
by the terms of a contingency fee agreement
between the attorney and client. Thompson v.
Andover Oil Co., 1984 OK CIV APP 51, ¶ 28, 691
P.2d 77, 84-85.
2345
The Nature Of An Oklahoma Statutory Based
Attorney Fee Award.
With respect to the award of a prevailing party
attorney fee, Oklahoma is firmly committed to
the American Rule. Kay v. Venezuelan Sun Oil Co.,
1991 OK 16, ¶ 5, 806 P.2d 648, 650. Under the
American Rule, each litigant bears the cost of
his/her own legal representation and Oklahoma
courts lack the authority to award attorney fees
in the absence of a statute or specific contractual
authority. Id.
Even though it does not appear that the Oklahoma Courts have expressly ruled on this exact
issue, since a party litigant must bear the cost of
his or her own legal representation, it follows
that the right to collect statutory, or contractually, based attorney fees and costs should rest with
the prevailing party client, and not his or her attorney. Indeed, a fair reading of 12 O.S. § 3237 supports this proposition, when it states, in part:
AWARD OF EXPENSES OF MOTION. If
the motion is granted, the court shall, after
opportunity for hearing, require the party or
deponent whose conduct necessitated the
motion or the party or attorney advising
such conduct or both of them to pay to the
moving party the reasonable expenses
incurred in obtaining the order, including
attorney fees, unless the court finds that the
opposition to the motion was substantially
justified or that other circumstances make
an award of expenses unjust.
If the motion is denied, the court shall,
after opportunity for hearing, require the
moving party or the attorney advising the
motion or both of them to pay to the party
or deponent who opposed the motion the
reasonable expenses incurred in opposing
the motion, including attorney fees, unless
the court finds that the making of the motion
was substantially justified or that other circumstances make an award of expenses
unjust.
If the motion is granted in part and
denied in part, the court may apportion the
reasonable expenses incurred in relation to
the motion among the parties and persons
in a just manner.
12 O.S. § 3237(A)(4) (Emphasis added).2
It is true that the purpose of 12 O.S. § 3237 is
“to address abusive discovery practices and
deter abusive resort to the judiciary.” Brown v.
Curtis, 2003 OK CIV APP 47, ¶ 27, 71 P.3d 34, 392346
40. The statute is also designed to “deter misconduct.” Payne v. DeWitt, 1999 OK 93, ¶ 8 at n. 7,
995 P.2d 1088, 1092. It is also certainly true that
discovery abuses add to the legal cost of litigation, and may make an attorney’s potential
recovery under a contingency fee agreement less
valuable due to the extra legal hours incurred in
the litigation. However, that does not mean an
attorney should therefore be entitled to receive
the payment of expenses and/or attorney fees,
under 12 O.S. § 3237, in addition to the other
fees to be received under a contingency fee
agreement.
The Effect of The Oklahoma Supreme Court’s
Ruling in Weeks.
In Weeks, the Oklahoma Supreme Court did
not expressly prohibit an attorney from retaining sanction based attorney fees in addition to
the percentage of fees received under a contingency fee agreement. However, the Oklahoma
Supreme Court’s reasoning in Weeks strongly
suggests that an attorney should not be entitled
to retain such fees in addition to the percentage
of fees to be recovered under the contingency fee
agreement.
In Weeks, the Oklahoma Supreme Court began
its analysis with the recognition that:
1.Statutory attorney fee awards can coexist with private fee arrangements [citing
Venegas v. Mitchell, 495 U.S. 82, 88, 110
S.Ct. 1679, 1683 (1990)]; and
2.Contingent fee agreements do not
impose an automatic ceiling on the
award of statutory attorney’s fees [citing
Blanchard v. Bergeron, 489 U.S. 87, 92, 109
S.Ct. 939, 944 (1989)].
Weeks, 1998 OK 83 at ¶ 29, 969 P.2d at 354. However, the Court also favorably cited the general
rule set forth in the annotation entitled: “Effect
of Contingent Fee Contract on Fee Award Authorized by Federal Statute”, 76 A.L.R.Fed.347, 352
(1983), which states:
In general, the cases explicitly or implicitly
hold that the statutory award of attorney
fees should not be treated as an amount in
addition to that received or to be received by
the attorney under a contingent fee contract,
with many courts explicitly holding that the
award is to be credited against the amount
owed to the attorney under the contract,
and if the award equals or exceeds the con-
Vol. 78 — No. 25 — 9/15/2007
tractual fee, that amount is deemed paid and
satisfied.
(Emphasis added). Id. at ¶ 36, 969 P.2d at 357.
The Oklahoma Supreme Court then examined
several federal cases dealing with the issue of an
attorney’s recovery of both a statutory based,
and a contingent fee based, fee in the same
litigation, none of which allowed such a recovery.
For example, the Third Circuit Court of Appeals
ruled an attorney should recover the contingent
amount or the statutory amount, whichever is
greater. If the contingent fee was greater, the
client would have to pay the attorney the
difference between the two fees. If the statutory
fee was greater, the client’s contingent obligation
to the attorney should be deemed settled. Id. at
¶38, 969 P.2d at 357, citing Sullivanv.CrownPaper
Bd.Co.,Inc., 719 F.2d 667, 670 (3rd Cir. 1983).
The Second Circuit Court of Appeals also held
that where the attorney has been paid a
contingent fee in an amount equal to or above
the amount of a statutory fee award, the client
should be reimbursed for any excess over the
amount of the contingent fee agreement received
by the attorney. Id., citing Sargeant v. Sharp, 579
F.2d 645, 648 (1st Cir. 1978). Similarly, the Second
Circuit Court of Appeals determined that the
client’s fee obligation to his attorney was
“deemed paid and satisfied” to the extent of the
statutory attorney fee award ordered. Id. at ¶ 39,
969 P.2d at 357, citing Wheatleyv.Ford, 619 F.2d
1037, 1041 (2nd Cir. 1982).3
Cherokee Nation whose headquarters are located in
The
Oklahoma Supreme Court’s reasoning,
beautiful Tahlequah, Oklahoma is a national leader in Indian
and tribal
favorable
references
the foregoing
governments
and economic to
development
in Oklahoma,legal
We are ain
dynamic,
progressive
organization, which
owns
authority
Weeks,
is a compelling
indication
business enterprises and administers a variety of
that several
it
would
probably
not
permit
an
attorney
to
services for the Cherokee people in Northeastern Oklahoma.
retain
a sanction
based,
statutory
attorney
Cherokee
Nation offers
an exceptional
employee
benefits fee
plan with
Comprehensive
Life,
Pay,P. 37,
award,
under
12 O.S. Health,
§ 3237
or401(k),
Fed.Holiday
R. Civ.
Sick Leave and Annual Leave.
in addition
to the fee to be recovered under a
CURRENT
OPPORTUNITIES
contingency fee
agreement.
#7354 Staff Attorney (2 positions), R/FT Close: 9/21/07
Other
Decisional Authority Outside Of
#7505 Assistant Attorney
General I, R/FT Close: 9/21/07
Oklahoma.
#7506 Assistant Attorney General II, R/FT Close: 9/21/07
Other
federal courts have examined whether
an attorney ALL
is entitled
toTAHLEQUAH,
retain a sanction
based
LOCATED IN
OK
attorney
underinFed.
R.forCiv.
P. 37, in
addition
If youfee,
are interested
working
the Cherokee
Nation,
to any fee owed by thecontact:
client under a contingency
fee agreement.4 Cherokee Nation
Human Resources Department
For example, thePO
District
Box 948of Columbia Circuit
Tahlequah,
OK an
74465
Court of Appeals
held that
attorney was not
(918) 453-5292 or 453-5050
entitled to retain a sanction based attorney fee,
Or Visit
website
at: www.cherokeejoblist.org
in addition
toourfees
recovered
under a contingency
Employment
will
be
contingent
upon drug test
fee agreement, in the absence
ofresults.
a specific
Indian preference is considered.
Vol.78—No.25—9/15/2007
provision allocating the sanction based attorney
fee to the attorney in the contingency fee
agreement. Hamiltonv.FordMotorCompany, 636
F.2d 745, 748, 749-50 (D.C. Cir. 1980).
The District of Columbia Circuit Court
reasoned that the principal purpose of Fed. R.
Civ. P. 37(b) is punitive, not compensatory. Thus,
Rule 37(b) could be construed to allow such a
sanctions based award directly to attorneys
since it is “silent as to whom the judge may
award attorneys’ fees.” Id. at 747-48. However,
the Court determined that the issue could only
be presented “if the [contingency fee] Agreement
authorizes such a result.” Id. at 748.
While, at first blush, it appears that this opinion
supports an award of such a sanction based
attorney fee to the attorney, if the contingency
fee agreement specifically allows such an
allocation. Nevertheless, the District of Columbia
Circuit Court’s reasoning ignores the express
provisions for the award of such fees to a “party”
that appears throughout Fed. R. Civ. P. 37.
Considering that this same language also appears
in 12 O.S. § 3237, it is doubtful that the Oklahoma
Supreme Court would agree with the holding
contained in Hamilton.
However, in another District of Columbia Circuit case, the District of Columbia Circuit
Court
ATTORNEY
of Appeals affirmed a district court magistrate’s
Car Rental
USAand
grant of Fed. R. Civ. P.Vanguard
37(b) attorney
fee’s
Inc.,
operator
of
National
Carv.
costs awarded directly to the attorney. Joshi
Rental
and
Alamo
Rent-A-Car,
ProfessionalHealthServices, Inc., 875 F.2d 350 (D.
currently
seeking
C. Cir. 1989), 1989 U.S.isApp.
LEXIS
7240, *3.
Nevertheless, inJoshi, the IN-HoUSe
party objecting to the
award was the appellant, against whom the
award was imposed, and CoUNSel/
not the attorney’s client. Additionally, the SR.
Joshi AttoRNey
decision is unpublished, and is of Successful
questionable
precedential
candidate
will possess
or display willingness to develop
authority Id.
expertise in general and industry-
In David v. Hooker,specific
Ltd., regulatory
560 F.2dand
412compliance
(9th Cir.
matters. Position offers substantial
1977), the Ninth Circuit
Court
of
Appeals
autonomy, interaction with manaffirmed a trial courtagement
order and
directing
that for
a Fed.
opportu-nity
adR. Civ. P. 37(b) award
be paid directly to the
vancement.
plaintiff’s attorney. However, the David opinion
Doctorate is required. Ideal
is of little assistanceJuris
to this
inquiry because the
candidate will be an attorney who
case
never
discussed
the
nature
fee
is
licensed
in
at least of
one the
(1) state
Vanguard offers a comto practice
petitive salary,
compre- the
agreement
between
client law
andand
hispossesses
attorney.a
hensive benefits package minimum of 5 years experience in
and
401(k). in both Stengelv.KawasakiHeavyIndusprivate practice or a corporate legal
Again,
an emphasis
on
tries, Ltd., 116 F.R.D.department
263, 269with
(N.D.
Tex. 1987),
0LEASEEMAILRESUMETO civil litigation defense.
and Swain,M.D.v.EncoreMedicalCorp.,
2006 U.
CAREERS
VANGUARDCARCOM
S. Dist.
LEXIS 89607, *11 (W.D. Pa.), Fed. R. Civ.
P. 37(b) attorney fee awards were ordered to be
Vanguard Carattorneys
Rental USA Inc. operates
paid directly to the plaintiffs’
in these
National Car Rental and Alamo Rent A Car.
cases. However, in both Stengle and Swain, the
2347
attorneys were directed to offset these awards
against any amount owed by the plaintiffs under
their respective contingency fee agreements. Id.
Consequently, these two cases are actually more
THE SUPREME COURT
in line with the Oklahoma Supreme Court reaThursday, August 23, 2007 soning expressed in Weeks. Indeed, no other
104,362
Betty
Gutierrez,
nowthe
Ducharme,
cases
have
beenSue
found
authorizing
payment
Barbara
Davidson
and Beverly
of sanction
based Lou
attorney
fees directly
to an
Lynn
Harris,
Hill v. Charlotte
E.
attorney, in
addition
to now
any percentage
of recovBlack.
ery based fee owed by the client under a contingency
without
pre-condi104,654fee
Inagreement,
the Matter
of AVoffset
& AV,
alleged
tions being
placed on
such anunder
award.18 years of
deprived
children
age: State of Oklahoma v. John Varela,
Ethical
Considerations
Natural
Father. Under 5 O.S. § 7
And
Friday,
August
31, 2007 Rule 1.5
Of The
Oklahoma
Rules Of
Professional
Conduct,
5
O.S.
104,445 TEC The Employment Chapter
Co., Inc.,1,and
Appendix
3-A.
Liberty Mutual Insurance Company
v. contingency
Dell LeFlore
The Workers’
While the
feeand
agreement
in Weeks
Compensation
Court.
originally required the payment of fifty percent
104,709ofPatterson
UTI or
Drilling
Co. paid
LP and
(50%)
any judgment
settlement
by
5
Zurich
Insurance
Company
v. Terry
defendants
therein,
in addition
to any
court
The Workers’
Compenaward or Minyard
negotiatedand
attorney
fee, it is important
sation
Court.
to point out that the Oklahoma Supreme Court’s
ruling
not Frances
based onCare
a violation
of 5LLC
O.S. and
§ 7.
104,750was
Jan
Center,
Rather, itDiamond
was predicated
upon
a violation
of
Insurance
Company
v. JenRule 1.5 of
the Oklahoma
of Professional
nifer
Batchelor Rules
and The
Workers’
Conduct, Compensation
5 O.S. Chapter 1,Court.
Appendix 3-A. Weeks,
1998 OK
83
at
¶¶
43-44,
969
P.2dAPPEALS
at 357.
COURT OF CRIMINAL
2007
Rule 1.5Friday,
of the August
Rules of24,Professional
Conduct
currently
provides:
J-2007-359 Z.T.W. v. State of Oklahoma.
a)
A
lawyer’s
fee v.
shall
beof
reasonable.
PC-2007-614 Moore
State
Oklahoma.The
factors to be considered in determining
COURT
OF CIVILofAPPEALS
the
reasonableness
a fee include the
Thursday,
August 23, 200
following:
101,471 Medic One, Inc., an Oklahoma corpo(1) the time and labor required, the novelty
ration and Amie Colclazier, an indiand difficulty
the questions
involved,
and
vidual v.of Atoka
Community
Home
the skill
requisite
the legal
serHealth,
Inc., toanperform
Oklahoma
corporavice properly;
tion, dba Heartland Home Health, Joe
Forrest,
an individual,
Terry
Johnson,
(2) the
likelihood,
if apparent
to the
client,
an
individual
and
Heartland
Healththat the acceptance of the particular employcare, Inc., an Oklahoma corporation.
ment will preclude other employment by the
102,494
Phouchny El v. State of Oklahoma,
lawyer;
ex rel., Board of Review of the
(3) the
fee customarily
charged in the
localOklahoma
Employment
Security
ity forCommission,
similar legal services;
The
Oklahoma
Employment
Security
Commission
(4) the amount involved and the results
and Bluebell Creameries, Inc.
obtained;
102,745 Mark Hudson v. Misti Renee Creach.
(5) the time limitations imposed by the cli102,753
Matthew
L. Sumner v. Kenneth Ray
ent or
by the circumstances;
McDaniel, dba Sunbelt Mobile Home
(6) the
nature
of the
professional
Park,
andand
akalength
Sunbelt
Mobile
Service,
relationship with the client;
2348
Mandates Issued
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
Paula Louise
a Notary
(8) whether
the fee isWilson,
fixed or as
contingent.
Public, and as rental/lot manger and
(b) Wagent
hen the
hasRay
notMcDaniel
regularly dba
repforlawyer
Kenneth
resented
client,
the basis
of
Sunbelt the
Mobile
Home
Park, or
andrate
Bonthe
shall beHuschka,
communicated
to the cliniefeeHether
Kurt Huschka,
Janna
Huschka,inRoger
T. Jones,
ent,
preferably
writing,
beforeLisa
or
K. Jones,
fka Lisatime
K. Wells,
Larry D.
within
a reasonable
after commencJones,
a necessary party, John T. Severe
ing
the representation.
and Virgina Banks.
(c) A fee may be contingent on the outcome
103,030 Martin Alan Vinyard v. Grace Kym
ofVinyard,
the matter
which the service is
nowfor
Seals.
rendered, except in a matter in which a
103,254 contingent
CNA PROfee
2000,
v. Michael
Fogis Inc.,
prohibited
by paraarty,
Executive
Director
of
the
Oklagraph (d) or other law. A contingent fee
homa Health Care Authority and
agreement
be in
writing
and shall
Oklahomashall
Health
Care
Authority.
state the method by which the fee is to be
103,287 determined,
In the matter
of the the
guardianship
including
percentage of
or
the
person
and
estate
of
J.J.L.H.:
percentages that shall accrue to the lawBobby
Hamby
Lynn Bart
yer
in the
event v.
of Joie
settlement,
trialand
or
Stephan Eugene Bart.
appeal, whether the client is to be liable
103,290 for
Donald
Thomas Stilley,
Jr., v.and
Bethany
reimbursement
of litigation
other
J.
Vanwormer.
expenses to be deducted from the recovand whether
such et
expenses
are to be
103,448 ery,
Steven
K. Abshier,
al v. Advances
deducted
before Systems,
or after the
Spine Fixation
Inc.contingent
is calculated.
Upon
103,464 fee
Lexmark
Homes,
Inc.conclusion
v. Lexie ofM.a
contingent
fee
matter,
the
lawyer
shall
Johnson v. Darrell G. Jenkins,
Wesley
provide
the
client
with
a
written
stateD. Jenkins and Larry W. Jenkins.
ment stating the outcome of the matter,
103,475 In Re the Marriage of James R.
and, if there is a recovery showing the
Edwards v. Joanna Edwards aka Joann
remittance
Medlin. to the client and the method
of determination.
103,484 T.W. Snyder and Caryn Snyder v.
(d)AJerry
lawyer
shall not enter into an arrangeStandifer.
ment for, charge, or collect:
103,485 Jerry Standifer and Nancy Standifer v.
Thomas
(1) any
fee inW.
a Snyder.
domestic relations matter,
the
payment
or
amount
of which isCounty
contin103,620 Ruth Wilbanks v. Okmulgee
gent Family
upon the
result
obtained,
other
than
Resources Center, Inc., Compactions
to collect
past due
alimony
or child
source
Oklahoma
and
The Workers’
Compensation
Court.
support;
or
103,645
the Matter
J.C.
and J.C., Deprived
(2) aIn
contingent
feeoffor
representing
a defenChildren
that
are
less
than 18 years of
dant in a criminal case.
age. Kathy Shannon and Calvin
(e)ACharles
divisionv.of
feeState
between
lawyers who
The
of Oklahoma.
not in
the same
firm may be
made
103,672 are
Reba
Jones,
individually
and
as
only
if:
Guardian and next Friend of A.J.J., a
minor.
Charles
Jones and toAmanda
(1) the
division
is in proportion
the serJones,
individually,
and as
mother
vices performed by each lawyer
or, by
writand next friend of C.J. and M.M., both
ten agreement
with
the
client,
each
lawyer
minors v. City of Stilwell, et al.
assumes joint responsibility for the repre103,952
Stacy Lee v. Linda K. Lee.
sentation;
Vol. 78 — No. 25 — 9/15/2007
(2) the
is advised
of and American
does not
104,145
ESSclient
America
and Zurich
objectInsurance
to the participation
of theMarie
lawCompany ofv. all
Vickie
Stewart and
yers involved;
and The Workers’ Compensation Court.
(3) the total fee is reasonable.
104,281 James Friend v. Mandy L. Tesoro,
5 O.S. Chapter
1, Appendix 3-A.
now Robertson.
The foregoing
versionv.of
Rule &
1.5Son
of
104,326
Freddiecurrent
Allen Keeling
Carter
the RulesExcavating,
of Professional
Conduct
will
be
Inc., Mega Life & Health
superseded,
effective
Januaryand
1, The
2008,Workand
Insurance
Company
replaced by
the
following:
ers’ Compensation Court.
(a) ARalph
lawyerRussell
shall not
make an agreement
104,332
v. Hydrohoist
Internafor,tional,
charge
or collect
an Indemnity
unreasonable
fee
Inc.,
Travelers
Comand The Workers’
Compensaor pany
an unreasonable
amount for
expenses.
tion
Court.
The
factors
to be considered in determining
the
reasonableness
of a fee include
104,391 Chesapeake Energy Marketing,
Inc. v.
theState
following:
of Oklahoma, ex rel., State Board
of time
Equalization
and the the
Oklahoma
(1) the
and labor required,
novelty
Tax Commission.
and difficulty
of the questions involved, and
the skill
requisite
perform
theand
legalNext
ser104,582
Anna
Perez,toas
Mother
vice properly;
Friend of A.G., a minor v. Enid Public
Schools,
Garfield
CountytoSchool
Dis(2) the
likelihood,
if apparent
the client,
trict #1-57, John E. Provine, M.D.,
that the acceptance of the particular employindividually, Oklahoma Department
ment of
will
preclude
employment
by the
Health
andother
Oklahoma
Department
lawyer;
of Human Services.
(3) the fee
customarily
Friday,
August charged
31, 2007in the locality for similar legal services;
102,328 Ralph Dale Mobbs v. Lois June
(4) the
amount involved and the results
Mobbs.
obtained;
103,157 Moore Estates Mobile Home Com(5) the
time limitations
imposed by the climunity
v. Brenda Mayo.
ent or by the circumstances;
103,158 Western Village L.P. v. Brenda Mayo.
(6) the nature and length of the professional
103,236 R & S. Construction v. Compsource
relationship with the client;
Oklahoma and The Workers’ Compensation
Court.
(7) the
experience,
reputation, and ability of
the
lawyer
or
lawyers
the ser103,369 Barbara Stinson v. performing
Voyager Indemnity
vices;Insurance
and
Co., a Georgia Corporation. the fee is fixed or contingent.
(8) whether
103,470
Auto
Crane
v. State
of
(b)The
scope
of theCompany
representation
and the
Oklahoma,
exthe
rel.,fee
Oklahoma
Departbasis
or rate of
and expenses
for
mentthe
of Labor,
Brenda
Reneau Wynn,
which
client will
be responsible
shall
Commissioner
of
the
Oklahoma
be communicated to the client,
preferaDepartment of Labor and Donald
bly in writing, before or within a reasonDaniels.
able time after commencing the repre103,511 sentation,
Case & Associates
Properties,
Inc.will
d/
except when
the lawyer
b/a Villas
at Stonebridge
v.
charge
a regularly
represented Apts.,
client on
Edward
J.
White
and
All
Occupants.
the same basis or rate. Any changes in
basis or
rate of thev.fee
or expenses
103,603 the
Octavio
Rodriquez
Johnston
Port
shall
also
be
communicated
toand
the The
cli33, Gray Insurance Company
ent.
Workers’ Compensation Court.
(c) A fee may be contingent on the outcome
of the matter for which the service is renVol. 78 — No. 25 — 9/15/2007
dered,
except Jets,
in a matter
in which Building
a contin103,719
Express
Ltd. v. Amweld
gent Products
fee is prohibited
by Waxman
paragraphand
(d) W.
or
and Gary
Aircraft,
LLC. fee agreement shall
otherW.
law.
A contingent
be inIn
writing
signedofbythe
theEstate
clientof
and
shall
103,816
the Matter
Luther
state Elmer
the method
by
which
the
fee
is
to
be
Nelson, Deceased. Michael
determined,
including
the
percentage
or
Elmer Nelson v. Luther Elmer Nelpercentages
that
shall
accrue
to
the
lawyer
son.
in the event of settlement, trial or appeal;
103,929
Equity
Company
Martin
litigation
andInsurance
other expenses
to be v.
deducted
Cervantes,
as
father
and
next
friend
from the recovery; and whether such expensof
Jesus
Cervantes
and
Miguel
Peraes are to be deducted before or after
the
les and
Padillo.
contingent
feeWilfredo
is calculated.
The agreement
mustIn
clearly
notify the
of any expenses
103,946
the Matter
of client
D.S., Deprived
child
for which
thethe
client
will
whether
or
under
age
ofbe18liable
years
of age.
Kathy
Shannon
v. State of party.
Oklahoma.
not the
client
is the prevailing
Upon
conclusion
a contingent
fee an
matter,
the
104,001
In theofMatter
of C.M.,
alleged
lawyer
shall
provide
the
client
with
a
writdeprived child. Joseph Mlinar and
ten statement
stating
the of
outcome
of the
Jamie Mlinar
v. State
Oklahoma.
matter, and, if there is a recovery, showing
104,077
Robert L. to
Hatcher,
Jr. v.
State
Oklathe remittance
the client
and
theofmethod
homa,
ex
rel.,
DOC,
Ron
Ward,
Direcof determination.
tor; Steven Beck, Warden, MACC;
(d)AAnita
lawyer shall
not enterUnit
into an
arrangeTrammell,
Manager,
ment
for, charge,
collect: Food Serv.
MACC;
Tonya or
Rodgers,
Mgr. MACC.
(1) any fee in a domestic relations matter,
104,158
Lena Carol
Brewster
Multiple
Injuthe payment
or amount
of v.which
is continry Trust
and of
The
Workers’
gent upon
theFund
securing
a divorce
orComupon
pensation
Court. or support, or propthe amount
of alimony
erty
settlement
in
lieuand
thereof;
104,177 Nat D. Rhynes
Joy A.orRhynes aka
Sandersfee
Rhynes
v. EMC Mortgage
(2) a Joy
contingent
for representing
a defenCorporation,
Bankers Trust Company
dant in
a criminal case.
of California, NA and United Compa(e)Anies,
division
of a fee
between lawyers who
Lending
Corporation.
are not in the same firm may be made
104,248 only
Larry
if: Beedle v. Fenton, Fenton, Smith,
Reneau & Moon, Beverly Pearson, Jay
Chapman
Wyann. to the ser(1) the
division&isTaylor
in proportion
vices
performed
by
each
or Fureach
104,255 Jason Lee Drywater v.lawyer
Sunshine
lawyer
assumes
joint
responsibility
for
the
niture and The Workers’ Compensarepresentation;
tion Court.
(2) the
agreesoftothe
theAdoption
arrangement
and
104,285
In client
the matter
of L.B.,
the agreement
is confirmed
in writing;
a minor child.
Kory Lee
Belvealand
and
Ashley
Nicole
Belveal v. State of Okla(3) the
total fee
is reasonable.
homa.
5 O.S. Chapter 1, Appendix 3-A.
104,358 Norman Regional Hospital, Own
Risk,
#14225
Carrier
v. PhyThe new
Rule
1.5 Insurance
is indicative
of current
liscase
Johnson
and requires
The Workers’
ComOklahoma
law that
attorney
fee
pensation
Court. and not excessive
agreements
to be reasonable
in scope. However, a contingency fee agreement, which contains a provision allowing an
attorney to retain legal fees awarded under 12
O.S. § 3237 could create ethical problems for an
attorney in at least two (2) ways. For example:
1. Even where the percentage of recovery
in a contingency fee agreement is less than
2349
the fifty percent (50%) maximum authorized under 5 O.S. § 7, if the attorney was
allowed to retain the sanction based legal
fee in addition to the contractual percentage of recovery, it is possible that these
additional fees could push the attorney’s
percentage of recovery over the fifty percent threshold, thus violating 5 O.S. § 7 and
triggering an ethical violation under Rule
1.5. As stated by the Oklahoma Supreme
Court in Weeks, “an unwarranted fee is a
per se unreasonable fee.” 1998 OK 83 at
¶44, 969 P.2d at 357.
2.
While Weeks does not expressly prohibit an attorney’s retention of a sanction based
legal fee in addition to the contractual percentage of recovery under a contingency fee agreement, the Oklahoma Supreme Court has clearly
stated that a dual recovery of such fees is an
unwarranted windfall which constitutes an
unreasonable attorney fee in violation of Rule
l.5(a). Id. at ¶ 13, 969 P.2d at 351-52. Thus, an
attorney who attempts to secure such a dual
recovery would most likely be subject to discipline under the rationale expressed in Weeks.
Consequently, the most prudent solution is
to insert a provision into the contingency fee
agreement that any statutory attorney’s fee
recovered by settlement or court award, which
exceeds the contractually required percentage
of recovery, should be applied against the contingent amount owing under the agreement
with the client, rather than in addition to it. Id.
Conclusion:
Certainly, if an attorney had an hourly based
fee agreement with the client, he or she would
be required to offset any sanction based legal
fees or costs awarded and received under 12
O.S. § 3237 from the balance due under the
hourly based fee agreement. There is no compelling reason why the same should not be true
under the terms of a contingency fee agreement. For these reasons it is the opinion of the
Legal Ethics Advisory Panel that the Inquiry
must be answered in the negative, and that a
lawyer should not be able to retain an award of
attorney fees and costs made in connection
with a discovery dispute authorized under 12
O.S. § 3237 and Fed. R. Civ. P. 37, in addition to
an agreed upon contingency fee.
1. Additionally, since the rights of the attorney and client in contingency fee agreements must be determined by the net amount recovered,
Schaff v. Richardson, 1926 OK 334, ¶ 2, 254 P. 496, 498, 5 O.S.§ 7, costs
awarded under 12 O.S. § 3237 or Fed R. Civ. P. 37 would also have to
be offset from the amount of recovery before the amount of the contingency fee can be determined.
2. Admittedly, 12 O.S. § 3237(B) does not expressly state that any
expenses and/or attorney fees are to be paid to the party as a sanction.
However, 12 O.S. § 3237(D) & (F) do require that such expenses and/or
attorney fees are to be paid to the “party”. Furthermore, 12 O.S.
§3237(E) references protective orders entered under 12 O.S. § 3226(C)(2),
which authorizes the payment of expenses under 12 O.S. § 3237(A)(4)
that does expressly require such payments are to be made to the
“party.”
3. The United States Supreme Court, in affirming a decision of the
Ninth Circuit Court of Appeals, also ruled that a client should be
required to pay the difference between the statutory fee and the
greater contingency agreement amount, and left no doubt that the dual
recovery of such fees was improper. Id. at ¶ 41 969 P.2d at 357 58, citing
Venegas v. Mitchell, 495 U.S. at 89-90, 110 S.Ct. at 1683-84 (1990).
4. 12 O.S. § 3237 is patterned on, and parallels precisely, the terms
of Fed. R. Civ. P. 37. Consequently, since 12 O.S. § 3237 is virtually
identical to Fed. R. Civ. P. 37, federal jurisprudence is instructive in
interpreting this statute. Payne v. DeWitt, 1999 OK 93, ¶ 8 at n. 6, 995
P.2d 1088, 1092.
5. This amount was subsequently reduced to forty percent (40%)
by agreement. Weeks, 1998 OK 83 at ¶¶ 4-5, 969 P.2d at 350.
www.okbar.org
Your source for OBA news.
At Home
2350
At Work
And on the Go
Vol. 78 — No. 25 — 9/15/2007
Mandates Issued
THE SUPREME COURT
Thursday, August 23, 2007 Paula Louise Wilson, as a Notary
Public, and as rental/lot manger and
agent for Kenneth Ray McDaniel dba
Sunbelt Mobile Home Park, and Bonnie Hether Huschka, Kurt Huschka,
Janna Huschka, Roger T. Jones, Lisa
K. Jones, fka Lisa K. Wells, Larry D.
Jones, a necessary party, John T. Severe
and Virgina Banks.
104,362 Betty Sue Gutierrez, now Ducharme,
Barbara Lou Davidson and Beverly
Lynn Harris, now Hill v. Charlotte E.
Black.
104,654 In the Matter of AV & AV, alleged
deprived children under 18 years of
age: State of Oklahoma v. John Varela,
Natural Father.
Friday, August 31, 2007 104,445 TEC The Employment Co., Inc., and
Liberty Mutual Insurance Company
v. Dell LeFlore and The Workers’
Compensation Court.
104,709 Patterson UTI Drilling Co. LP and
Zurich Insurance Company v. Terry
Minyard and The Workers’ Compensation Court.
104,750 Jan Frances Care Center, LLC and
Diamond Insurance Company v. Jennifer Batchelor and The Workers’
Compensation Court.
COURT OF CRIMINAL APPEALS
Friday, August 24, 2007
J-2007-359 Z.T.W. v. State of Oklahoma.
PC-2007-614 Moore v. State of Oklahoma.
COURT OF CIVIL APPEALS
Thursday, August 23, 200
101,471 Medic One, Inc., an Oklahoma corporation and Amie Colclazier, an individual v. Atoka Community Home
Health, Inc., an Oklahoma corporation, dba Heartland Home Health, Joe
Forrest, an individual, Terry Johnson,
an individual and Heartland Healthcare, Inc., an Oklahoma corporation.
102,494 Phouchny El v. State of Oklahoma,
ex rel., Board of Review of the
Oklahoma Employment Security
Commission,
The
Oklahoma
Employment Security Commission
and Bluebell Creameries, Inc.
102,745 Mark Hudson v. Misti Renee Creach.
102,753 Matthew L. Sumner v. Kenneth Ray
McDaniel, dba Sunbelt Mobile Home
Park, and aka Sunbelt Mobile Service,
Vol. 78 — No. 25 — 9/15/2007
103,030 Martin Alan Vinyard v. Grace Kym
Vinyard, now Seals.
103,254 CNA PRO 2000, Inc., v. Michael Fogarty, Executive Director of the Oklahoma Health Care Authority and
Oklahoma Health Care Authority.
103,287 In the matter of the guardianship of
the person and estate of J.J.L.H.:
Bobby Hamby v. Joie Lynn Bart and
Stephan Eugene Bart.
103,290 Donald Thomas Stilley, Jr., v. Bethany
J. Vanwormer.
103,448 Steven K. Abshier, et al v. Advances
Spine Fixation Systems, Inc.
103,464 Lexmark Homes, Inc. v. Lexie M.
Johnson v. Darrell G. Jenkins, Wesley
D. Jenkins and Larry W. Jenkins.
103,475 In Re the Marriage of James R.
Edwards v. Joanna Edwards aka Joann
Medlin.
103,484 T.W. Snyder and Caryn Snyder v.
Jerry Standifer.
103,485 Jerry Standifer and Nancy Standifer v.
Thomas W. Snyder.
103,620 Ruth Wilbanks v. Okmulgee County
Family Resources Center, Inc., Compsource Oklahoma and The Workers’
Compensation Court.
103,645 In the Matter of J.C. and J.C., Deprived
Children that are less than 18 years of
age. Kathy Shannon and Calvin
Charles v. The State of Oklahoma.
103,672 Reba Jones, individually and as
Guardian and next Friend of A.J.J., a
minor. Charles Jones and Amanda
Jones, individually, and as mother
and next friend of C.J. and M.M., both
minors v. City of Stilwell, et al.
103,952 Stacy Lee v. Linda K. Lee.
2351
104,145 ESS America and Zurich American
Insurance Company v. Vickie Marie
Stewart and The Workers’ Compensation Court.
104,281 James Friend v. Mandy L. Tesoro,
now Robertson.
104,326 Freddie Allen Keeling v. Carter & Son
Excavating, Inc., Mega Life & Health
Insurance Company and The Workers’ Compensation Court.
104,332 Ralph Russell v. Hydrohoist International, Inc., Travelers Indemnity Company and The Workers’ Compensation Court.
104,391 Chesapeake Energy Marketing, Inc. v.
State of Oklahoma, ex rel., State Board
of Equalization and the Oklahoma
Tax Commission.
104,582 Anna Perez, as Mother and Next
Friend of A.G., a minor v. Enid Public
Schools, Garfield County School District #1-57, John E. Provine, M.D.,
individually, Oklahoma Department
of Health and Oklahoma Department
of Human Services.
102,328 Ralph Dale Mobbs v. Lois June
Mobbs.
103,157 Moore Estates Mobile Home Community v. Brenda Mayo.
103,158 Western Village L.P. v. Brenda Mayo.
103,236 R & S. Construction v. Compsource
Oklahoma and The Workers’ Compensation Court.
103,369 Barbara Stinson v. Voyager Indemnity
Insurance Co., a Georgia Corporation.
103,470 Auto Crane Company v. State of
Oklahoma, ex rel., Oklahoma Department of Labor, Brenda Reneau Wynn,
Commissioner of the Oklahoma
Department of Labor and Donald
Daniels.
103,511 Case & Associates Properties, Inc. d/
b/a Villas at Stonebridge Apts., v.
Edward J. White and All Occupants.
103,719 Express Jets, Ltd. v. Amweld Building
Products and Gary Waxman and W.
W. Aircraft, LLC.
103,816 In the Matter of the Estate of Luther
Elmer Nelson, Deceased. Michael
Elmer Nelson v. Luther Elmer Nelson.
103,929 Equity Insurance Company v. Martin
Cervantes, as father and next friend
of Jesus Cervantes and Miguel Perales and Wilfredo Padillo.
103,946 In the Matter of D.S., Deprived child
under the age of 18 years of age.
Kathy Shannon v. State of Oklahoma.
104,001 In the Matter of C.M., an alleged
deprived child. Joseph Mlinar and
Jamie Mlinar v. State of Oklahoma.
104,077 Robert L. Hatcher, Jr. v. State of Oklahoma, ex rel., DOC, Ron Ward, Director; Steven Beck, Warden, MACC;
Anita Trammell, Unit Manager,
MACC; Tonya Rodgers, Food Serv.
Mgr. MACC.
104,158 Lena Carol Brewster v. Multiple Injury Trust Fund and The Workers’ Compensation Court.
104,177 Nat D. Rhynes and Joy A. Rhynes aka
Joy Sanders Rhynes v. EMC Mortgage
Corporation, Bankers Trust Company
of California, NA and United Companies, Lending Corporation.
104,248 Larry Beedle v. Fenton, Fenton, Smith,
Reneau & Moon, Beverly Pearson, Jay
Chapman & Taylor Wyann.
104,255 Jason Lee Drywater v. Sunshine Furniture and The Workers’ Compensation Court.
104,285 In the matter of the Adoption of L.B.,
a minor child. Kory Lee Belveal and
Ashley Nicole Belveal v. State of Oklahoma.
104,358 Norman Regional Hospital, Own
Risk, #14225 Insurance Carrier v. Phylis Johnson and The Workers’ Compensation Court.
103,603 Octavio Rodriquez v. Johnston Port
33, Gray Insurance Company and The
Workers’ Compensation Court.
2352
Vol. 78 — No. 25 — 9/15/2007
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
SUMMARY OPINIONS
F-2006-115 —Appellant, Gregory Mitchell,
was convicted of, count 1, Kidnapping in violation of 21 O.S.Supp.2004, §741, count 2, Feloniously Pointing a Weapon in violation of 21 O.S.
2001, §1289.16, count 3, Assault with a Dangerous Weapon in violation of 21 O.S.2001, §645,
count 4, Assault and Battery with a Dangerous
Weapon in violation of 21 O.S. §645, and count
5, Domestic Assault and Battery in violaton of
21 O.S.2001, §644, in the District Court of Tulsa
County, Case No. CF-2004-3595, before the Honorable Tom C. Gillert, District Judge. The jury
set punishment at Life on count 1, thirty (30)
years on count 2, twenty (20) years on count 3,
eighty (80) years on count 4, and one (1) year on
count 5. The trial court sentenced accordingly,
ordering that counts 4 and 5 be served concurrently, and the remaining counts be served consecutively. The trial court also assessed a $100
fine on each count (reducing fines the jury had
assessed). From this judgment and sentence
Gregory Mitchell has perfected his appeal.
AFFIRMED Opinion by Lewis, J.; Lumpkin,
P.J., concurs; C. Johnson, V.P.J., concurs;
Chapel, J., concurs in results; A. Johnson, J.,
concurs in results.
F-2006-601 — Mikel James Kinder, Jr., Appellant, was tried by jury for the crime of First
Degree Murder in Case No. CF-2005-190, in the
District Court of Tulsa County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment without the
possibility of parole. The trial court sentenced
accordingly. From this judgment and sentence
Mikel James Kinder, Jr. has perfected his appeal.
The Judgment and Sentence of the District
Court is AFFIRMED. The Motion for Evidentiary Hearing and Motion for a New Trial are
DENIED.
Opinion
by
Chapel,
J.;
Lumpkin, P.J., concur; C. Johnson, V.P.J.,
concur; A. Johnson, J., concur; Lewis, J.,
concur.
F-2006-724 —Leroy Sommers, Appellant,
was tried by jury for the crimes of Sexual
Abuse of a Child (Counts I, II and III), Lewd or
Indecent Proposals or Acts to a Child (Counts
IV, V, VII, and VIII) in Case No. CF-2005-855, in
Vol. 78 — No. 25 — 9/15/2007
the District Court of Oklahoma County. The
jury returned a verdict of guilty and recommended as punishment three (3) years imprisonment for Count I, two (2) years imprisonment for Count II, seven (7) years imprisonment for Count III, three (3) years imprisonment for Count IV, seven (7) years imprisonment for Count V, and one (1) year imprisonment for each of Counts VII and VIII to run
consecutively. The trial court sentenced accordingly. From this judgment and sentence Leroy
Sommers has perfected his appeal. AFFIRMED.
Opinion by Chapel, J.; Lumpkin, P.J.,
concur; C. Johnson, V.P.J., concur; A. Johnson,
J., concur; Lewis, J., concur.
F-2007-111 — Corey Bruce Mitchell, Appellant, was tried by jury for the crimes of Aggravated Assault and Battery Counts III, VI, and
VII in Case No. CF-05-4290, in the District
Court of Tulsa County. The jury returned a
verdict of guilty and recommended as punishment five (5) years imprisonment on each
count, with Counts II and VI to run consecutively and Count VII suspended. The trial
court sentenced accordingly. From this judgment and sentence Corey Bruce Mitchell has
perfected his appeal. AFFIRMED. Opinion by
Chapel, J.; Lumpkin, P.J., concur; C. Johnson,
V.P.J., concur; A. Johnson, J., concur; Lewis, J.,
concur.
C-2007-40 — Janet Mary Alarcon, entered
blind pleas of guilty to count one, Possession
of a Controlled Dangerous Substance (Methamphetamine), 63 O.S. Supp.2004, §2-402, after
former conviction of three felony crimes, count
two, Unlawful Possession of Drug Paraphernalia, 63 O.S.Supp.2004, §2-405, and count
three, Driving a Motor Vehicle while Under the
Influence of an Intoxicating Substance, 47 O.
S.Supp.2005, §11-902(A)(3), in the District
Court of Custer County District Court Case
No. CF-2006-3, before the Honorable Charles
Goodwin, District Judge. Judge Goodwin sentenced Alarcon to ten (10) years on count one
and one year each on counts two and three,
and ordered that all three counts be served
concurrently. The trial court sentenced accordingly. Alarcon filed an application to withdraw
her pleas, which was denied by the District
Court. From this judgment and sentence Janet
Mary Alarcon has perfected her appeal. The
2353
trial court’s decision to deny Petitioner motion
to withdraw plea is AFFIRMED and the
Application for Writ of Certiorari is DENIED.
Opinion by Lewis, J.; Lumpkin, P.J., concurs; C.
Johnson, V.P.J., concurs; Chapel, J., concurs in
results; A. Johnson, J., concurs.
F-2006-551 — Appellant, Terriss Noble, was
convicted of Lewd Molestation, in violation of
21 O.S.2001, § 1123, after former conviction of a
felony, in the District Court of Logan County,
Case No. CF-2003-41, before the Honorable
Donald Worthington, District Judge. The jury
set punishment at seventeen years, and the
trial court sentenced accordingly. From this
judgment and sentence Appellant has perfected his appeal. AFFIRMED. Opinion by Lewis,
J.; Lumpkin, P.J., concurs; C. Johnson, V.P.J.,
concurs; Chapel, J., concurs; A. Johnson, J.,
concurs.
F-2006-112 — James Kevin Staten, Appellant,
was tried by jury for the crime of Assault and
Battery With a Dangerous Weapon After Former Felony Conviction in Case No. CF-20052428 in the District Court of Oklahoma County.
The jury returned a verdict of guilty and recommended as punishment twenty years
imprisonment. The trial court sentenced
James Kevin Staten has perfected his appeal.
The Judgment and Sentence of the District
Court is AFFIRMED. Opinion by A. Johnson,
J.; Lumpkin, P.J., concurs; C. Johnson, V.P.J.,
concurs; Chapel, J., concurs in result; Lewis, J.,
concurs.
F-2006-321 — Appellant, Royce J. Davis, was
tried by jury in Oklahoma County District
Court Case No. CF-2005-604 and convicted of
Assault and Battery with a Dangerous Weapon, After Former Conviction of a Felony. The
jury set punishment at fifteen years imprisonment, and the trial court sentenced Appellant
accordingly. Appellant now appeals his conviction and sentence. AFFIRMED. Opinion by
Lumpkin, P.J.; C. Johnson, V.P.J., concur; Chapel, J., concur; A. Johnson, J., concur; Lewis, J.,
concur.
F-2005-1270 — Duffy Joseph Kane, Appellant, was tried by jury for the crimes of Unlawful Possession of a Controlled Drug with Intent
to Distribute, after former conviction of two or
more felonies (Count 1); Failure to Obtain a
Drug Tax Stamp (Count 3); and Unlawful Possession of Paraphernalia (Count 5) in Case No.
2354
CF-2004-2421 in the District Court of Tulsa
County. The jury returned a verdict of guilty
and recommended as punishment 40 years
imprisonment and a $30,000 fine on Count 1, a
fine of $3,000 on Count 3, and one year imprisonment and a $1,000 fine on Count 5. The trial
court sentenced accordingly. From this judgment and sentence Duffy Joseph Kane has
perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED.
Opinion by A. Johnson, J.; Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs; Chapel, J.,
concurs in results; Lewis, J., concurs in results.
F-2006-669 — Serapio Penny Coronado,
Appellant, was tried by jury and found guilty
of Count I, attempted burglary in the second
degree, in violation of 21 O.S. 2001, §1435, after
one prior felony conviction, in Jackson County
District Court, Case No. CF-2005-247. The jury
sentenced Appellant to four (4) years. The
Honorable Richard Darby, District Judge, pronounced judgment and sentence accordingly,
and ordered restitution of $25. From this judgment and sentence Serapio Penny Coronado
has perfected his appeal. Opinion by Lewis, J.;
Lumpkin, P.J., concurs; C. Johnson, V.P.J.,
concurs; Chapel, J., concurs; A. Johnson, J.,
concurs.
F-2006-279 — Travis Weston Foote, Appellant, was tried by jury in the District Court of
Oklahoma County, Case No. CF-2003-6028,
and found guilty of Count 1, rape in the first
degree by instrumentation, in violation of 21
O.S.2001, §1111 and 1114; and Count 2, lewd or
indecent acts with a child under sixteen (16), in
violation of 21 O.S.2001, §1123. The jury sentenced Appellant to sixty (60) years imprisonment in Count 1 and twenty (20) years imprisonment in Count 2. The Honorable Daniel L.
Owens, District Judge, pronounced judgment
and sentence, ordering the terms served consecutively. From this judgment and sentence
Travis Weston Foote has perfected his appeal.
Opinion by Lewis, J.; Lumpkin, P.J., concurs; C.
Johnson, V.P.J., concurs; Chapel, J., concurs in
results; A. Johnson, J., concurs in results.
PCD-2006-990 & PCD-2006-1273 — Stephen
Ray Thacker v. State of Oklahoma. The brutal
murder and rape in this case, one of three that
Petitioner committed in an extremely brief
time period, occurred just before Christmas in
1999. After being charged and bound over,
Petitioner waived his right to a jury trial and
appellate review of his convictions and entered
a blind guilty plea to the crimes of First Degree
Vol. 78 — No. 25 — 9/15/2007
Murder, Kidnapping, and First Degree Rape in
the District Court of Mayes County, Case
Number CF-1999-305. He was convicted of
those crimes, then waived a jury trial on the
three aggravating circumstances alleged by the
State. Following a non-jury trial on the aggravating circumstances, the trial judge sentenced
Petitioner to death on the murder charge, ten
years imprisonment on the kidnapping charge,
and fifty years imprisonment on the rape
charge, to be served consecutively. Petitioner
appealed his convictions and sentences to this
Court, but we denied relief. See Thacker v. State,
2004 OK CR 32, 100 P.3d 1052. He then filed an
appeal with the United States Supreme Court,
but the Court refused to grant certiorari. Thacker v. Oklahoma, 544 U.S. 911, 125 S.Ct. 1611, 161
L.Ed.3d 288 (2005). In February of 2005, Petitioner filed his first application for post-conviction relief, raising three issues. On September 13, 2005, this Court denied post-conviction
relief in a published opinion, Thacker v. State,
2005 OK CR 18, 120 P.3d 1193. Petitioner then
sought habeas relief in the Federal District
Court for the Northern District in September of
2006. That proceeding, however, is apparently
on hold due to Petitioner’s filing of a second
and third application for post-conviction relief
before this Court in September and December
of 2006, cases No. PCD-2006-990 and PCD2006-1273. We join those post-conviction
appeals together here in one opinion as a matter of clarity and convenience. We find postconviction relief is not warranted with respect
to either appeal. Petitioner’s second and third
applications for post-conviction relief are hereby DENIED. The Court further finds the
Motions for Evidentiary Hearing are DENIED.
Opinion by Lumpkin, P.J. C. Johnson, V.P.J.,
concur; Chapel, J., concur in results; A. Johnson, J., concur; Lewis, J.: concur.
F-2006-254 — Appellant, Gary Smith, was
tried by jury in the District Court of Lincoln
County, Case Number CF-2004-190, and convicted of Conspiracy to Traffic a Controlled
Dangerous Substance (Methamphetamine)
(Count 1) and Using a Communication Facility
to Facilitate the Commission of a Felony (Count
2). The jury set punishment at seven (7) years
imprisonment and a forty thousand dollar fine
($40,000.00) for Count 1 and two (2) years
imprisonment and a six thousand five hundred
dollar ($6,500.00) fine for Count 2. The trial
court sentenced Appellant in accordance with
the jury’s determination and ordered the sentences to run consecutively. Appellant now
appeals his conviction and sentence.
AFFIRMED. Opinion by Lumpkin, P.J.; C.
Vol. 78 — No. 25 — 9/15/2007
Johnson, V.P.J., concur; Chapel, j.: concur in
result; A. Johnson, J., concur; Lewis, J., concur.
RE-2006-1173 — Eddie Chavez, Appellant,
has appealed to this Court from an order
issued by the Honorable Ray C. Elliott, District
Judge, revoking his suspended sentences in
Case No. CF-2003-5310 in the District Court of
Oklahoma County. DENIED. Lumpkin, P.J.,
concurs; C. Johnson, V.P.J., concurs; Chapel, J.,
concurs; A. Johnson, J., concurs; and Lewis, J.,
concurs.
C-2006-1073 — Charmagne June Hood, Petitioner, pled guilty to the crime of Unlawful
Possession of a Controlled Substance in Case
No. CF-2004-305 in the District Court of Caddo
County. The Honorable Richard G. Van Dyck
accepted her plea and, as a part of a plea agreement, admitted her to the Caddo County Drug
Court Program. Hood was terminated from
the Drug Court Program after three months
and was sentenced by Judge Van Dyck to her
previously negotiated sentence of ten years
imprisonment. Hood filed a timely application to Withdraw Plea of Guilty. The district
court held the prescribed hearing and denied
her application. Hood appeals the district
court’s order and asks this Court to issue a
Writ of Certiorari allowing her to withdraw
her plea and proceed to trial. The Petition for
Writ of Certiorari is DENIED. Opinion by A.
Johnson, J.; Lumpkin, P.J., concurs; C. Johnson,
V.P.J., concurs; Chapel, J., concurs in results;
Lewis, J., concurs in results.
RE-2006-947 and RE-2006-948 — Curtis
Dewayne Allen, Appellant, has appealed to
this Court from an order issued by the Honorable Don Ed Payne, Associate District Judge,
revoking his suspended sentences in Case Nos.
CF-2001-153 and CF-2002-15 in the District
Court of Choctaw County. DENIED. Lumpkin, P.J., concurs; C. Johnson, V.P.J., concurs;
Chapel, J., concurs; A. Johnson, J., concurs; and
Lewis, J., concurs.
Thursday, September 6, 2007
F-2006-1141 — George Luther Carter, III,
Appellant, was tried by jury for the crime of
Sexual Abuse of a Child in Case No. CF-2003305, in the District Court of Lincoln County.
The jury returned a verdict of guilty and recommended as punishment twenty-five (25)
years imprisonment. The trial court sentenced
George Luther Carter, III has perfected his
appeal. AFFIRMED. Opinion by Chapel, J.;
2355
Lumpkin, P.J., concur in results; C. Johnson, V.
P.J., concur; A. Johnson, J., concur; Lewis, J.,
concur.
F-2005-1011 — Carl Don Myers, Appellant,
was tried by jury for the crimes of Count 1 First Degree Murder, Count 2 - First Degree
Arson, Count 3 - Conspiracy, Count 4 - Robbery with a Dangerous Weapon, and Count 5
- Kidnapping in Case No. CF-2004-1564 in the
District Court of Oklahoma County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment without the
possibility of parole on Count 1, 35 years
imprisonment on Count 2, 10 years imprisonment on Count 3, five years imprisonment on
Count 4, and 10 years imprisonment on Count
5. The trial court sentenced accordingly and
ordered his sentences to be served consecutively. From this judgment and sentence Carl
Don Myers has perfected his appeal. The
Judgment and Sentence of the District Court
on Counts 1, 2, 3, and 4 is AFFIRMED. The
Judgment of the district court on Count 5 is
REVERSED with instructions to DISMISS.
Opinion by A. Johnson, J.; Lumpkin, P.J., concurs in part and dissents in part; C. Johnson,
V.P.J., concurs; Chapel, J., concurs in results;
Lewis, J., concurs.
Friday, September 7, 2007
F-2005-649 — Appellant Alfred Gene Ryan
was tried in the District Court of Kay County,
Case No. CF-04-38, and convicted of First
Degree Rape (Count I) and Lewd Molestation
(Count III). The jury set punishment at twenty
(20) years imprisonment on Count I and ten
(10) years imprisonment on Count III, with
$2,500.00 fines on both counts. The judge sentenced Appellant accordingly and ordered the
sentences to run consecutively. Appellant now
appeals his convictions and sentences, The
judgments and sentences are hereby
AFFIRMED, except that the sentences on
Counts I and III are hereby MODIFIED to run
concurrently. Opinion by Lumpkin, P.J.; C.
Johnson, V.P.J., concur; Chapel, J., concur in
result; A. Johnson, J., concur; Lewis, J., concur
in result.
F-2006-183 — Appellant Gordon Carroll
Fisher was tried by jury and convicted of
Embezzlement (Count I) and Perjury (Count
II), in the District Court of Oklahoma County,
Case No. CF-2004-4825. The jury recommended as punishment one (1) year imprisonment
and a $10,000.00 fine in Count I, and two (2)
years imprisonment and a $10,000.00 fine in
Count II. The trial court sentenced according2356
ly, ordering the sentences to run consecutively.
It is from these judgments and sentences that
Appellant appeals. AFFIRMED. Opinion by
Lumpkin, P.J.; C. Johnson, V.P.J., concur in
result; Chapel, J., concur in result; A. Johnson,
J., concur; Lewis, J., concur.
Monday, September 10, 2007
PCD-2006-712 — Petitioner, Michael Wayne
Howell, was convicted by a jury for the crime
of First Degree Murder in Case No. CRF-19876784 in the District Court of Oklahoma County.
The jury found the existence of three aggravating circumstances and set punishment at death.
The judgment was affirmed, but remanded for
resentencing. On resentencing, a second jury
found the same three aggravating circumstances originally alleged and again set punishment at death. We affirmed that sentence,
and the United States Supreme Court denied
certiorari. Petitioner’s first and second applications for post-conviction relief were denied.
Petitioner’s third application for post-conviction relief, and request for an evidentiary hearing, are DENIED. Opinion by C. Johnson, V.
P.J.; Lumpkin, P.J., concurs in results; Chapel,
J., concurs; A. Johnson, J., concurs; Lewis, J.,
concurs.
Tuesday, September 11, 2007
F-2006-1095 — Terry Dewayne Wakefield,
Appellant, was tried by jury for the crimes of
Kidnapping (Count I), Unauthorized Use of a
Motor Vehicle (Count II), and Assault and Battery — Domestic Abuse (Count III), each After
Former Conviction of Two Felonies, in Case
No. CF-2004-248 in the District Court of Logan
County. The jury returned a verdict of guilty
on all counts and recommended as punishment twenty years imprisonment on Count I;
three years imprisonment on Count II; and no
less than 10 years imprisonment on Count III.
At sentencing, the trial court imposed judgment and sentence in accordance with the
jury’s verdict ordering all sentences to run consecutively. From this judgment and sentence
Terry Dewayne Wakefield has perfected his
appeal. The Judgment and Sentence of the district court is AFFIRMED as to Counts I and II.
The Judgment as to Count III is AFFIRMED
but the Sentence is MODIFIED to one year in
the county jail. Opinion by C. Johnson, V.P.J.;
Lumpkin, P.J., concurs; Chapel, J., concurs; A.
Johnson, J., concurs; Lewis, J., concurs.
F-2006-1031 — Chasity Dawn Hall, Appellant, was tried in a non-jury trial and found
guilty of Count I, uttering a forged instrument,
in violation of 21 O.S. 2001, § 1592, after two or
Vol. 78 — No. 25 — 9/15/2007
more prior felony convictions, in Jackson
County District Court, Case No. CF-2005-109.
The Honorable Richard Darby, District Judge,
sentenced Appellant to four (4) years and a
$250 fine. The trial court sentenced accordingly. From this judgment and sentence Chasity
Dawn Hall has perfected her appeal.
AFFIRMED. Opinion by Lewis, J.; Lumpkin,
P.J., concurs; C. Johnson, V.P.J., concurs;
Chapel, J., dissents; A. Johnson, J., dissents.
THE ACCELERATED DOCKET
J-2007-359 — The order of the Honorable
Tom C. Gillert, District Judge, District Court of
Tulsa County, in Case No. CF-2006-4243, granting the State’s motion to sentence Appellant,
Z.T.W., as an adult is REVERSED. Lumpkin,
P.J., concurs; C. Johnson, V.P.J., concurs, Chapel, J., concurs; A. Johnson, J., concurs; Lewis,
J., concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
103,829 — In re: Application for Permit to
Build Abstract Plant of Great Plains Investments, Jackson County Abstract Company,
Inc., Petitioner/Appellant, vs. Great Plains
Investments, Inc. An Oklahoma Corporation,
and Jeff A. McMahan, State Auditor and Inspector, State of Oklahoma, Respondents/Appellees. Appeal from the District Court of Jackson
County, Oklahoma. Honorable Richard B.
Darby, Trial Judge. Respondent (Great Plains)
applied to State Auditor for a permit to build
an abstract plant in Jackson County, Oklahoma. Appellant (JCAC) which owns Jackson
County’s only abstracting business, filed a protest with State Auditor objecting to issuance of
the permit to Great Plains. JCAC argued there
were 71 files missing in the Court Clerk’s
office. Fifty-one files were located, leaving 20
unaccounted for. JCAC believed further investigation would find additional files missing.
JCAC argued the missing files precluded issuance of a permit to build an abstract plant. On
appeal, the contentions, arguments and legal
authorities are substantially those presented to
the trial court. We find the positions asserted
by State Auditor and Great Plains more persuasive. JCAC relies on the provision in OAC
80:10-3-9 which purports to require an applicant for a permit to build an abstract plant to
obtain all records otherwise unavailable from
the offices of the District Court Clerk and
County Clerk prior to issuance of the permit.
JCAC argues this provision supersedes the
Vol. 78 — No. 25 — 9/15/2007
Court of Civil Appeals determination in Permit
to Develop an Abstract Plant of LeFlore Title, Inc.,
In re, 2003 OK CIV APP 76, 77 P.3d 621; 75 O.S.
2001 §322. The provision in OAC 80:10-3-9 was
not in effect at the time the application for permit in LeFlore Title was initially denied by State
Auditor. It was not discussed in that opinion.
Even presuming OAC 80:10-3-9 did require a
county’s records be proven complete before
issuance of a permit, and is therefore inconsistent with the holding in LeFlore Title, it would
be in conflict with the Oklahoma Abstractor’s
Law, which has no such requirement, and
must yield to the statutes authorizing the
implementing rules. Therefore, we hold it does
not supersede the persuasive authority and
reasoning contained in the opinion. There is no
legal requirement for Great Plains to have
established the county records were complete
at the time it applied for the permit. However,
to continue without undue delay, the hearing
examiner and State Auditor had to account for
the 20 records which were missing. The State
Auditor did so by allowing Great Plains to
“obtain” the missing files. The missing files
could be obtained by a more thorough search
of the Court Clerk’s office, or by reconstruction
of the files pursuant to 67 O.S. 2001 §§1 et seq,
where procedures are provided for restoration
of lost or destroyed official records. There was
testimony concerning how official records
could be so restored. While under the law,
State Auditor could have issued the permit
without any proof of completeness of records,
his requiring Great Plaint to obtain the 20
records in dispute was, at most, harmless error
and we will not reverse on that basis. We find
no prejudicial error of law. The trial court’s
order is AFFIRMED. Opinion by Hansen, P.J.;
Buettner, J., and Bell, J., concur.
104,639 — Jonathon O’Dell, Plaintiff/Appellant, vs. City of Tulsa, Oklahoma, Defendant/
Appellee. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable Deborah
C. Shallcross, Judge. In this action for wrongful
discharge from employment, Appellant
(O’Dell), a probationary police officer, seeks
review of the order granting summary judgment to Appellee (City). The trial court determined that a probationary police officer is not
entitled to have his discharge from employment reviewed by a board of review and that
City is exempt from the requirements of §50123 of the Oklahoma Police Pension and Retirement System. The Legislature mandated the
establishment of a statutory board of review if
and in the event a municipality fails to establish an appeal process by means of a civil ser-
2357
vice board of review or negotiated contract
covering the discharge of their members. It is
uncontroverted City maintains a civil service
board of review. We agree City is exempt from
establishing a statutory board of review under
§50-123(A). O’Dell contends the court erred
when it determined that he was not entitled to
a §50-123(B) review because he was a probationary police officer. The clear language of
§50-101.7 discloses the Legislature did not
intend to differentiate between permanent and
probationary police officers for purposes of
membership in the Pension System. The term
“member,” as it is used in §50-123(B) of the
Pension System, naturally includes all aspects
of the term’s definition at §50-101.7. We hold
§50-123(B) grants probationary police officers,
who are members of the Pension System, the
protection of continued employment absent
the showing of cause and the right to appeal a
discharge from employment to a civil service
board of review established by the municipality or a board of review established under §50123(A). We further hold the trial court erred
when it concluded the question as to whether
Plaintiff voluntarily resigned or was constructively discharged was irrelevant. O’Dell’s evidence sufficiently raised controverted questions of fact as to whether he resigned from his
employment, thus potentially waiving the
right to review, or whether he was constructively discharged from his employment. O’Dell
had a protected interest in continued employment under §50-123(B) and the trial court erred
as a matter of law when it granted summary
judgment to City as to the issue of O’Dell’s
resignation. AFFIRMED IN PART; REVERSED
IN PART AND REMANDED. Opinion by Bell,
J.; Hansen, P.J., concurs, and Buettner, J.,
dissents with opinion.
104,748 — (comp. w/104,749) Edward A.
Pollock, Plaintiff/Appellant, vs. A. Passmore
& Sons, Inc., Defendant/Appellee. Appeal
from the District Court of Jackson County,
Oklahoma. Honorable Clark E. Huey, Trial
Judge. Appellant (Employee) seeks review of
the trial court’s order granting summary judgment to Appellee (Employer) based on running of the limitations period on remand after
reversal of a previous summary judgment. We
reverse and remand, holding Employee’s postremand amendments to his petition relate back
to the original petition because the amended
claim arose out of the same transaction set
forth in the original pleading. Employee merely asserted a different legal theory of liability
for the same transaction set forth in the original pleading. Employee’s statutory claim is
2358
well within the limitations period and is unaffected by laches. The trial court’s order granting summary judgment is REVERSED AND
REMANDED for further proceedings.
REVERSED AND REMANDED. Opinion by
Hansen, P.J.; Buettner, J., and Bell, J., concur.
104,749 — (comp. w/104,748) Gary Randolph, Plaintiff/Appellant, vs. A. Passmore &
Sons, Inc., Defendant/Appellee. Appeal from
the District Court of Jackson County, Oklahoma. Honorable Clark E. Huey, Trial Judge.
Appellant (Employee) seeks review of the trial
court’s order granting summary judgment to
Appellee (Employer) based on running of the
limitations period on remand after reversal of
a previous summary judgment. We reverse
and remand, holding Employee’s postremand
amendments to his petition relate back to the
original petition because the amended claim
arose out of the same transaction set forth in
the original pleading. Employee merely asserted a different legal theory of liability for the
same transaction set forth in the original pleading. Employee’s statutory claim is well within
the limitations period and is unaffected by
laches. The trial court’s order granting summary judgment is REVERSED AND REMANDED for further proceedings. REVERSED AND
REMANDED. Opinion by Hansen, P.J.;
Buettner, J., and Bell, J., concur.
103,864 — Genevieve Court, Plaintiff/Appellant, vs. Solar Turbines, Inc., a Delaware Corporation, and Robert McWilliams, an individual, Defendants/Appellees. Appeal from the
District Court of Oklahoma County, Oklahoma. Honorable Noma Gurich, Trial Judge.
Appellant (Bicyclist), seeks review of the trial
court’s order granting summary judgment in
favor of Appellee (Employer) and judgment
based on a jury verdict in favor of Appellee
(Driver). Bicyclist was riding a bicycle when
she was injured in a collision with a car driven
by Driver and owned by Employer. Bicyclist
contends the court erred in excluding a witness’s testimony as to the speed Driver was
traveling. The court allowed Bicyclist to put on
evidence of Driver’s excessive speed, and submitted to the jury the fact issue whether the
speed was the proximate cause of the collision.
We see no error. Bicyclist next argues the court
erred in allowing an eyewitness to testify Bicyclist failed to stop at a stop sign at an earlier
time. Whether Bicyclist stopped at the stop
sign during her outbound ride is probative as
to whether she stopped there during her
inbound ride when the collision occurred, and
Vol. 78 — No. 25 — 9/15/2007
is conduct leading up to the event at issue. We
find no abuse of discretion in the admission of
the eyewitness’s testimony. We also find the
court did not err in allowing the report of a
state trooper showing his calculations of Driver’s speed. In addition, the opinion testimony
of Bicyclist’s expert that Driver should have
steered one direction instead of the other was
not helpful to the jury because the jurors were
just as capable of drawing a proper conclusion
from the facts as the witness. Bicyclist contends
the court erred in failing to instruct the jury on
the last clear chance doctrine. A plaintiff’s contributory negligence does not bar recovery
unless it is of greater degree than the defendant’s negligence. The jury instructions correctly stated Oklahoma law on comparative
negligence. Finally, because we affirm the
judgment finding Driver not liable, we need
not consider whether Employer has liability
derived from that of Driver. AFFIRMED. Opinion by Hansen,, P.J.; Bell, J., and Mitchell, V.C.J.
(sitting by designation), concur.
103,148 — Leo C. Bray, Plaintiff/Appellant,
vs. State of Oklahoma ex rel. Oklahoma Department of Public Safety and Merit Protection
Commission, Defendants/Appellees. Appeal
from the District Court of Tulsa County, Oklahoma. Honorable Gregory K. Frizzell, Judge.
Appellant (Bray) appeals from an order of the
presiding judge of Tulsa County District Court
denying Bray’s motion to disqualify the trial
judge in a post-trial proceeding. Bray was an
officer with the Oklahoma Highway Patrol
(OHP) and was demoted from 2nd Lieutenant
to trooper. Bray’s sole basis for arguing Judge
Sellers’ disqualification is that the judge’s
brother-in-law, Steve White, was formerly
employed by OHP, purportedly was acquainted with the only complaining witness against
Bray and allegedly did not get along well personally or professionally with Bray. Bray also
advances several arguments regarding the
wrongness of the underlying case as illustrative of the judge’s impartiality. The facts
alleged by Bray fall far short of demonstrating
the presiding judge abused his discretion by
refusing to disqualify Judge Sellers. Bray presented no evidence that (1) former state trooper
White had any connection with the decision of
DPS to demote Bray, (2) Judge Sellers knew of
White’s acquaintance with either Bray or the
complaining witness, or (3) Judge Sellers knew
of the alleged acrimonious nature of the relationship between White and Bray. The only
evidence presented by Bray was that the trial
Vol. 78 — No. 25 — 9/15/2007
judge’s sister was married to a man who was
acquainted with the complaining witness and
who did not get along well with Bray. Such
allegations do not rise to the level of even the
appearance of possible impropriety discussed
in the cases upon which Bray relies. Plaintiff
has failed to show Judge Frizzell abused his
discretion by refusing to disqualify Judge
Sellers. AFFIRMED. Opinion by Bell, J.;
Hansen, P.J., and Buettner, J., concur.
104,184 — City of Tulsa, Petitioner, vs. Donnie L. Ramsey and The Workers’ Compensation Court, Respondents. Proceeding to Review
an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioner (Employer) seeks review of an order requiring Employer to reimburse Respondent (Claimant) for
“sick leave benefits” in the amount of $1,292.61.
Employer asserts the trial court lacked jurisdiction and authority to issue a ruling regarding
sick leave benefits, because such is a contractual benefit and not an item that may be compensated through the Workers’ Compensation
Act. Employer also contends it was not given
an opportunity to be heard on the matter
before the trial court ruled on the issue. We
reject both arguments. The trial court’s use of
the words “sick leave benefits” in its order was
a mischaracterization of the award which we
deem akin to a scrivener’s error. The trial
court’s order is therefore modified to correct
the error to accurately reflect that the award
was for temporary total disability (TTD) benefits. Employer has failed to produced any
record to demonstrate that the trial court did
not conduct a hearing on August 10, 2005,
before issuing its order. Employer has similarly failed to show the order lacked evidentiary support and/or Employer’s consent.
SUSTAINED. Opinion by Bell, J.; Hansen, P.J.,
and Buettner, J., concur.
104,333 — In The Matter of S.A., S.T., J.T.,
and J.T., Deprived Children. State of Oklahoma, Petitioner/Appellee, vs. Joe Tambunga
and Lori Tambunga, Respondents/Appellants.
Appeal from the District Court of Garfield
County, Oklahoma. Honorable Tom Newby,
Trial Judge. Respondents/Appellants Joe Tambunga (Father) and Lori Tambunga (Mother)
(collectively Parents) appeal from a jury verdict terminating their parental rights to S.A.,
S.T., J.T., and J.T. (Children). The jury found
Parents’ rights should be terminated under 10
O.S.2001 §7006-1.1(A)(5) because Parents failed
to correct the conditions leading to the deprived
adjudication, and under 10 O.S.2001 §70061.1(A)(15) because Children had been in foster
2359
care for fifteen of the most recent twenty-two
months. The jury also found termination was
in Children’s best interests. Clear and convincing evidence supports the jury’s verdicts and
we affirm. AFFIRMED. Opinion by Buettner,
J.; Bell, J., concurs, and Hansen, P.J., dissents
with a separate opinion.
104,390 — Melissa G. Early, Plaintiff/Appellee, vs. Charles D. Early, Defendant/Appellant. Appeal from the District Court of Canadian County, Oklahoma. Honorable John L.
Wolking, Judge. This is the second appeal in
this child custody proceeding. In this appeal
Appellant (Father) appeals the trial court’s
order awarding full legal custody of the parties’ minor child to Appellee (Mother). It is
apparent from the record that each party exerted great effort to prove his or her fitness and
the other party’s unfitness to be the sole custodial parent. The parties’ complaints during the
trial mirrored their constant turmoil and animosity outside of this proceeding. We note
the child’s therapist and the Guardian Ad
Litem (GAL) both recommended joint custody
to force parental cooperation. Notwithstanding these recommendations, the trial court had
no choice but to terminate the joint custody
arrangement and to award sole legal custody
to one of the parties. It chose to award Mother
sole legal custody. Based on the record before
us, we cannot find this to be error. In addition,
the weight of the evidence reveals Mother met
the statutory qualifications of 43 O.S. Supp.
2006 §112(C)(3). The order of the trial court is
AFFIRMED. Opinion by Bell, J.; Hansen, P.J.,
and Buettner, J., concur.
104,508 — In the Matter of the Last Will and
Testament of Mary Barber Goddard (known
also as Mary B. Goddard), Deceased. Stephen
R. Nance and Lyn Y. Nance, Appellants, vs.
John R. McKinney; James W. McKinney; David
McKinney; Debbie Fattaahi; Chris McKinney;
and Sean McKinney, Appellees. Appeal from
the District Court of Oklahoma County, Oklahoma. Honorable Brian H. Upp, Trial Judge.
Decedent (Mary) died in 1949. Her daughter,
Edith, was appointed Executrix of Mary’s will.
Edith served as Executrix until her death in
2004. The court appointed two of Edith’s sons
(John and William) to serve as Successor CoPersonal Representatives and ordered John to
conduct an accounting of Mary’s estate. John
hired the firm of Hall, Estill, Hardwick, Gable,
Golden & Nelson [the Hall firm] to act as attorneys for him in his capacity as Co-Personal
Representative. Due to potential conflicts of
interest, the trial court ordered that John and
2360
William be replaced with an independent
administrator, John Goodman. John McKinney and the Hall firm filed an application for
attorney fees incurred in the administration of
the Goddard Estate during John’s tenure as
Co-Personal Representative. John filed an
Amended Application for Attorney Fees in the
amount of $73,040.19. The court issued an
order awarding the Hall firm attorney fees in
the amount of $73,789.42 to be paid by the
Goddard Estate. Pursuant to 58 O.S. §721(10)
Appellants (Nance), the great-grandchildren
of Mary and the children of a deceased child of
Edith’s, appeal this interlocutory order. They
argue the trial court abused its discretion in
awarding the Hall firm $70,103.95 in attorney
fees, exclusive of $3,685.47 in expenses. A
review of the record shows the trial court did
not set forth with specificity the facts and computation to support its award. The court
abused its discretion in failing to do so.
REVERSED AND REMANDED WITH DIRECTIONS. Opinion by Hansen,, P.J.; Buettner, J.,
and Bell, J., concur.
104,563 — Robert F. Edelmon, Petitioner, vs.
Goodyear Tire & Rubber Co., own risk, and
The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a
Three-Judge Panel of The Workers’ Compensation Court. Petitioner (Claimant) was employed
by Respondent (Employer) for 25 years as a
control technician. On June 21, 2003, Claimant
sustained a job-related injury to his neck and
upper back with consequential psychological
overlay when he was overrun by a forklift. He
received a compensation award on December
21, 2005, for 10% permanent partial disability
(PPD) to the neck, 6% PPD to the back, and 5%
PPD for psychological overlay. Claimant sustained a second injury due to cumulative
trauma to both hands and both arms with a
date of last exposure of November 13, 2003.
He was awarded 20% PPD to the left hand,
18% PPD to the right hand, 22% PPD to the left
arm and 20% PPD to the right arm. Claimant
voluntarily retired from his employment with
Employer. On July 24, 2006, Claimant filed a
claim for permanent total disability (PTD) due
to the combination of injuries. The trial court
denied the request. Claimant appeals. He first
contends the order is too vague and indefinite
for judicial interpretation. The ultimate fact
question here is whether Claimant’s combined
injuries constituted PTD under 85 O.S. Supp.
2005 §172. We find the order on review set
forth findings of fact and conclusions of law
which were directly responsive to this issue.
Claimant next contends the order is not sup-
Vol. 78 — No. 25 — 9/15/2007
ported by competent evidence and is contrary
to law. Employer’s medical expert opined
Claimant was not permanently and totally disabled but was employable without restrictions
or limitations. In addition, Claimant’s treating
physician released Claimant to full duty without restrictions. The order denying Claimant’s
request for PTD benefits is SUSTAINED. Opinion by Bell, J.; Hansen, P.J., and Buettner, J.,
concur.
(Division No. 2)
102,165 — Lloyds of America, Ltd., Plaintiff/
Appellant, v. Alexander Theoharous and AEC
Industries, Inc., Defendants/Appellees. Appeal
from the District Court of Canadian County,
Hon. Edward C. Cunningham, Trial Judge. The
trial court’s findings of fact numbered 31, 32,
and 33 are vacated because there is no competent evidence in this record to support said
findings. See American Fertilizer Specialists, Inc.
v. Wood, 1981 OK 116, 635 P.2d 592 and Parsley
v. Rickey, 1998 OK 47, 962 P.2d 1269. Therefore,
that portion of the trial court’s judgment
awarding an attorney’s fee to Defendants based
on a violation of the Oklahoma Securities Act,
71 O.S.2001, §§1 through 413, is vacated.
AFFIRMED IN PART, VACATED IN PART.
Opinion from Court of Civil Appeals, Division
II, by Goodman, J.; Wiseman, P.J., and Reif, J.
(sitting by designation), concur.
104,223 — Western Heights Independent
School District No. I-41 of Oklahoma County,
Petitioner/Appellant, v. The State of Oklahoma ex rel. Oklahoma State Department of Education, Oklahoma State Board of Education,
and Sandy Garrett, State Superintendent of
Public Instruction for the State of Oklahoma,
Respondents/Appellees. Appeal from the District Court of Oklahoma County, Hon. Daniel
L. Owens, Trial Judge, granting State’s motion
to dismiss. School filed an action for declaratory judgment against State alleging that State,
which is “charged with the development, submission, and implementation of school accountability standards and reporting under the federal mandates of The No Child Left Behind Act
of 2001,” failed to follow its promulgated rules
and regulations in determining that School
failed to make adequate yearly progress (AYP)
and in placing School on the “School Improvement List.” School alleged in its petition that
Department issued its final district accountability data report (ADR) on November 18,
2005. On December 12, 2005, School formally
appealed Department’s findings. School
claimed that State ignored School’s appeal and
Vol. 78 — No. 25 — 9/15/2007
“in violation of [State’s] own rules that require
a determination of appeal within 30 days, [has]
failed to respond or rule on [School’s] appeal.”
State filed a motion to dismiss, claiming that
the trial court lacked subject matter jurisdiction over School’s lawsuit. On appeal, State
further recited that another division of the
Court of Civil Appeals found that the Oklahoma Administrative Procedures Act (APA)
applies to such accountability proceedings.
Western Heights Indep. Sch. Dist. No. I-41 of
Oklahoma County v. State ex rel. Oklahoma State
Dep’t of Educ., 2007 OK CIV APP 21, ¶9, 156
P.3d 53, 55. State argued in its motion to dismiss under review here that the decision in the
prior appeal is the law of the case. Although
State argues in its motion to dismiss reply brief
that School appealed both its preliminary ADR
and final ADR to the district court on December 20, 2005, “as acknowledged in the Court of
Appeals decision,” we find no such acknowledgment — the opinion refers only to State’s
October 17, 2005, denial of School’s September
27, 2005, appeal which would necessarily
involve only the preliminary ADR. We find
that the trial court erred in determining that
this case involved the same facts and questions
of law as the previous case. It appears from the
record before us that these two cases are based
on separate actions taken by State — the previous action related to a preliminary ADR, and
School’s current action relates to a final ADR
issued, according to School, several months
after the preliminary ADR. Based on the record
before us, we conclude that the trial court
erred in basing its dismissal of School’s current
action on the decision rendered in the previous
case. REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS. Opinion from the
Court of Civil Appeals, Division II, by
Wiseman, J.; Rapp, C.J., and FIischer, P.J.,
concur.
103,721 — Julie Beard, Plaintiff/Appellant, v.
Barry Love and 77 Corporation, an Oklahoma
Corporation, Defendants/Appellees. Appeal
from order of the District Court of Muskogee
County, Hon. A. Carl Robinson, Trial Judge.
Appellant Julie Beard appeals from the Trial
Court’s August 8, 2006, grant of summary
judgment against her and in favor of Appellees
77 Corporation and Barry Love. This appeal is
assigned to the accelerated docket pursuant to
Oklahoma Supreme Court Rule 1.36, 12 O.S.
Supp. 2002, ch. 15, app. 1. With favorable consideration of the evidence and inferences to
which Beard is entitled at the summary judgment stage, we find that there remain factual
disputes relevant to her allegations that Love
2361
operated 77 Corporation for his personal benefit and in breach of his fiduciary duty to the
corporation and its minority shareholder. As
relevant to the derivative claim, Beard’s pleadings meet the verification requirement in 18
O.S.2001 §2023.1 and the stock ownership
requirement of 18 O.S.2001 §1126. Beard alleges
specific acts that she contends evidence Love’s
breach of fiduciary duty and self-dealing.
When tested pursuant to the pleading standards applicable to derivative actions, we find
that Beard’s pleadings are sufficient to state a
derivative claim on behalf of 77 Corporation.
See Gay v. Akin, 1988 OK 150, 766 P.2d 985. The
Trial Court held that Beard’s claims were
barred by the applicable statute of limitations.
Drawing all inferences in the light most favorable to Beard, the record establishes that a
material issue of fact exists as to whether or not
Love’s response, or lack thereof, to Beard’s
repeated requests for information tolled the
applicable statute of limitations until Beard
knew or should have known the basis for the
claims she asserts in her derivative action. In
her petition, Beard claimed that Love, as majority shareholder of the corporation, had breached
his fiduciary duty to manage the corporation
for the benefit of all shareholders. Drawing all
inferences in the light most favorable to Beard,
the business judgment rule does not insulate
Love from this Court’s scrutiny. The entire fairness of Love’s conduct is at issue. Under certain circumstances, a court may exercise its
equitable jurisdiction to appoint a receiver for
dissolution of a corporation or order the
appraisal and purchase of a minority shareholder’s interest. Love’s motion does not establish that he is entitled to summary judgment
on these claims. The record on appeal establishes that issues of material fact exist as to
each claim asserted by Beard. Accordingly, the
Judgment of the Trial Court is reversed and the
case is remanded for further proceedings consistent with this opinion. REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS. Opinion on Rehearing from Court of
Civil Appeals, Division II, by Fischer, P.J.;
Rapp, C.J., and Wiseman, J., concur.
Thursday, September 6, 2007
102,805 — James W. Trenz, an individual,
and Terrane Associates, Inc., Plaintiffs/Appellees, v. Glen Rupe, an individual, and Rupe Oil
Company Inc., Defendants, and Peter Paul
Petroleum Company, Defendant/Appellant.
Appeal from Order of the District Court of
McClain County, Honorable Noah H. Ewing,
Jr., Trial Judge. The trial court defendant, Peter
2362
Paul Petroleum Company (PPPC) appeals a
judgment for money due plus prejudgment
interest in favor of the plaintiffs, James W.
Trentz (Trentz) and Terrane Associates, Inc.
PPPC’s appeal includes interim rulings by the
trial court. The other defendants, Glen Rupe
(Rupe) and Rupe Oil Company, Inc. (Rupe Oil)
are not involved in this aspect of the case. In
Trentz I, this Court ruled that when legal issues
subject to a jury trial predominate in a case
involving both legal and equitable claims, then
a jury trial on the legal issues is required. This
ruling meant that the threshold contractual
issues between Trentz and Rupe had to be
resolved by a jury. The jury’s resolution
favored Trentz and established that he had a
contract with Rupe entitling him to one-half of
the “back-in” interest. The contract creating
the “back-in” and establishing that it would
vest on payout is not ambiguous. The items
for calculation of payout are specifically set
out. Thus, having established his interest in
the “back-in,” Trentz was entitled to an accounting from PPPC as to payout. The accounting is
an equitable matter. PPPC and Trentz, each
through expert testimony, reached different
conclusions regarding the payout calculation
while proceeding from the same premise
regarding the cost elements included in the
payout calculation. The trial court’s decision
to award a sum commensurate with Trentz’s
calculation of payout is not against the clear
weight of the evidence. However, this case
does not qualify for prejudgment interest, and
the award of such interest was error. AFFIRMED
IN PART AND REVERSED IN PART. Opinion
from Court of Civil Appeals, Division II, by
Rapp C.J.; Goodman, Acting P.J. (sitting by
designation), and Reif, J. (sitting by designation) concur.
Monday, September 10, 2007
103,441 — Angela Nider, Plaintiff/Appellant, v. Republic Parking, Inc., Defendant/
Appellee. Appeal from Order of the District
Court of Oklahoma County, Hon. Vicki L. Robertson, Trial Judge, granting summary judgment in favor of parking garage operator in a
premises liability action. The evidentiary
materials of record establish that Nider’s status was that of an invitee. Therefore, Republic
had a duty of reasonable care to make and
maintain its premises safe for her use. Brown v.
Nicholson, 1997 OK 32, ¶ 7, 935 P.2d 319, 322.
Material facts are in dispute regarding whether
Republic breached this duty, as they are in dispute with respect to whether the condition of
the ramp was an open and obvious hazard.
Vol. 78 — No. 25 — 9/15/2007
The Trial Court, therefore, erred in granting
summary judgment to Republic, and, consequently, it was an abuse of discretion to deny
Nider’s motion for new trial. REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil
Appeals, Division II, by Fischer, J.; Goodman,
J., concurs, and Wiseman, P.J., concurs in part,
dissents in part.
104,422 — Pete E. Gipson, Claimant/Petitioner, v. Stand By Personnel, Inc., Compsource
Oklahoma, and The Workers’ Compensation
Court, Respondents. Proceeding to Review an
Order of a Three-Judge Panel of The Workers’
Compensation Court, Hon. H. Thomas Leonard, III, Trial Judge. Pete E. Gipson (Claimant)
appeals a decision of the Three-Judge Panel of
the Workers’ Compensation Court (Panel) in
favor of Stand By Personnel, Inc. and its insurer (Employer) which denied his claim for
worker’s compensation benefits. The Panel
reversed the trial judge’s finding of a workrelated injury. The Panel ruled that Claimant
did not “sustain an accidental personal injury
arising out of and in the course of” his employment. Employer’s physician’s opinion stated
that the back injury was not work-related.
This Court must sustain the Panel if a canvass
of the record shows any competent evidence to
support the decision. Where claimant objected
to employer’s evidence before Workers’ Compensation Court solely for its lack of probative
value, the only issue to be addressed on appeal
was whether employer’s evidence had probative value. Employer’s medical report, which
did not receive an objection on competency
grounds, satisfies the “any competent evidence” criterion. Therefore, the decision of the
Panel is sustained. SUSTAINED. Opinion
from Court of Civil Appeals, Division II,
by Rapp, C.J.; Fischer, P.J., and Wiseman, J.,
concur.
104,786 — Intercermanic, Inc., a foreign corporation, Plaintiff/Appellee, v. Sunrise Park
Management Co., L.L.C., an Oklahoma limited
liability company d/b/a Sunrise Park Apartments, and Eli Hadad, individually and d/b/a
Sunrise Park Apartments, a/k/a Sunrise Park
Estates, Defendants/appellants. Appeal from
Order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge. The trial
court defendants, Sunrise Park Management
Co., L.L.C. (Sunrise), an Oklahoma Limited
Liability Company d/b/a Sunrise Park Apartments and Eli Hadad (Hadad), individually
and d/b/a Sunrise Park Apartments a/k/a
Vol. 78 — No. 25 — 9/15/2007
Sunrise Park Estates, appeal an order overruling their motion for new trial presented after
the trial court granted summary judgment to
the plaintiff, Intercermanic, Inc. (Intercermanic). Intercermanic sued Sunrise for $22,613.43
for goods ordered and delivered. Hadad was
also sued for the same sum on the claim that he
guaranteed the debt in writing. Intercermanic’s evidentiary materials have been examined
to determine what facts are material and
whether there is a substantial controversy as to
one material fact. Here, a number of factual
issues are in dispute. Evidentiary materials
submitted by Intercermanic do not suffice to
justify summary judgment. Under the applicable standard of review, the trial court should
have granted a new trial because it was error to
grant summary judgment on the record submitted by Intercermanic. REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals,
Division II, by Rapp, C.J.; Fischer, P.J., and
Wiseman, J., concur.
(Division No. 3)
Monday, August 24, 2007
104,284 — Bed Bath & Beyond, Inc., and
Fidelity Guaranty Insurance Company, Petitioners, v. Rebecca Ann Bonat and the Workers’
Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel
of the Workers’ Compensation Court. Employer seeks review of an order of a three-judge
panel affirming that part of the trial court’s
order granting benefits for temporary total disability (TTD) and medical treatment to Claimant on a finding of the job-related aggravation
of a previous back injury. In this proceeding,
Employer asserts the Workers’ Compensation
Court erred in granting Claimant benefits
because: (1) Claimant failed her burden of
proof to establish an injury causally related to
the employment, her treating physician
expressing no opinion to establish job-related
causation, and the treating physician’s opinion
given controlling weight by 85 O.S. §17(A); (2)
Claimant suffered only soft-tissue back injuries
for which 85 O.S. §22(3) limited the award for
TTD to no more than twenty-four weeks; and
(3) the award for cumulative trauma aggravation of a preexisting condition is contrary to
Claimant’s allegation of a single event injury.
However, §17(A) presents no impediment to
the introduction of medical evidence from
sources other than the treating physician or a
court-appointed physician. Construing the
provisions of 85 O.S. §22(3)(d) together with
§22(2)(b), §22(2)(b) permits an award of TTD
2363
exceeding twenty-four weeks in soft tissue
cases. Although Employer complains the lower
court erred in awarding benefits for cumulative trauma aggravation of a preexisting condition in light of Claimant’s assertions and
uncontroverted evidence of multiple single
event injuries, Oklahoma law permits an award
of compensation for aggravation of a preexisting condition as a result of either a single event
or cumulative trauma. In the presence of competent evidence to support the lower court’s
finding of a job-related aggravation of a preexisting condition, we consequently regard the
lower court’s recitation of the existence of
cumulative trauma aggravation as inconsequential to Claimant’s right to, and recovery
of, workers’ compensation benefits. SUSTAINED. Opinion by Joplin, P.J.; Adams, J.,
concurs, and Mitchell, V.C.J., dissents with a
separate opinion.
104,356 — In the Matter of Emily L. Latimer,
Deceased and her husband, Caesar C. Latimer.
Caesar C. Latimer, Plaintiff/Appellant, v. Tulsa
Adult Day Care Center d/b/a Life Senior Services, Oklahoma Retiree Board of Education,
Health Choice Benefits, Harrington Benefits,
Oklahoma Insurance Commission, Hillcrest
Medical Center, Oklahoma Department of
Human Services, Rest Haven Nursing Home,
Hartford Life Insurance Corporation, Defendants/Appellees. Appeal from the District
Court of Tulsa County, Oklahoma. Honorable
Mary Fitzgerald, Judge. Appellant appeals
from an order dismissing without prejudice his
action arising from the injuries received by his
wife, Emily, while at an adult day care. The
trial court’s order is not a final appealable
order. The record shows Appellee LIFE’s counterclaim is still pending. Further, the court’s
order was not certified as required by 12 O.S.
2001 §994. Appellant was put on notice of the
defect in the appeal on April 6, 2007 by Appellee LIFE’s motion to dismiss, but did not take
any corrective action. We thus find no need for
a show cause order, and instead dismiss the
appeal for lack of an appealable order. This
dismissal will not prejudice Appellant’s right
to bring a subsequent appeal after a final order
is entered. DISMISSED AS PREMATURE.
Opinion by Mitchell, V.C.J.; Adams, J., and
Joplin, P.J., concur.
104,492 — Jerry Proctor, Petitioner, v. Sodexho School Services, Insurance Company of the
State of Pennsylvania, and the Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of the Workers’ Compensation Court. Claimant Jerry Proctor seeks review
2364
of an order of the Workers’ Compensation
Court, initially filed by a trial judge and
affirmed by the three-judge panel on en banc
appeal, which found he had not suffered an
accidental injury arising out of and in the
course of his employment as he alleged. We
conclude the order is neither contrary to law
nor unsupported by any competent evidence
and sustain it. SUSTAINED. Opinion by Adans,
J.; Joplin, P.J., and Mitchell, V.C.J., concur.
104,528 — Progressive Independence, Inc.,
Plaintiff/Appellee, v. Oklahoma State Department of Health, Defendant/Appellant. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Noma D. Gurich, Trial
Judge. In this declaratory judgment action
filed by Progressive Independence, Inc. (Progressive), the Oklahoma State Department of
Health (OSDH) appeals a trial court order
granting summary judgment in favor of Progressive and ordering OSDH to make available
certain records requested by Progressive pursuant to the “Oklahoma Open Records Act”
(the Act), 51 O.S.2001 §24A.1, et seq. We conclude the presence of a disputed material fact
precludes summary judgment in this case. The
trial court’s order is reversed, and the case is
remanded for further proceedings. REVERSED
AND REMANDED. Opinion by Adams, J.;
Joplin , P.J., and Mitchell, V.C.J., concur.
103,621 — Hirsch Holdings, L.L.C., a Delaware limited liability company; Gary Hirsch,
individually; Sonja Hirsch, individually;
Advantage Manufacturing Group, L.L.C., an
Oklahoma limited liability company; Advantage Medical, Inc., an Oklahoma corporation;
and American Renewable Resources, L.L.C.,
an Oklahoma limited liability company, Plaintiffs/Appellants, v. Hannagan-Tobey, L.L.C., a
Delaware limited liability company; David
Hannagan; Katherine Hannagan; Nunn Holdings, L.L.C., a Delaware limited liability company; K. Joy Nunn; Kenneth L. Albright; and
Albright, Rusher & Hardcastle, a Professional
Corporation, Defendants/Appellees, Billy
Tobey, Defendant. Appeal from the District
Court of Tulsa County, Oklahoma. Honorable
Deborah C. Shallcross, Judge. Plaintiffs seek
review of the trial court’s orders denying their
motion to vacate an arbitrator’s award for
Defendants, and granting Defendants’ motion
to confirm the arbitrator’s decision, including
the arbitrator’s award of attorney’s fees. In this
proceeding, Plaintiffs challenge the trial court’s
orders compelling arbitration and confirming
the arbitrator’s award as contrary to the par-
Vol. 78 — No. 25 — 9/15/2007
ties’ contractual agreement to litigate all disputes, improperly requiring arbitration of nonarbitrable tort claims, and violating both the
contractual terms and Oklahoma law governing recovery of attorney’s fees. The courts may
compel parties to arbitrate only what they
have agreed to arbitrate, and, taken together,
the contracts at issue do not clearly reflect the
parties’ intent or agreement to arbitrate all disputes. REVERSED AND REMANDED. Opinion by Joplin, P.J.; Adams, J., and Mitchell, V.
C.J., concur.
104,008 — In the Matter of the Estate of Mary
Augusta White, Deceased, Casandra Matthews, Petitioner/Appellant, v. Terry B. Alford,
Respondent/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Linda G. Morrissey, Judge. Appellant
(Matthews) appeals from an order denying
admission into probate of the Last Will and
Testament of decedent (White) on the basis
that it was procured by Matthews’ undue
influence. Matthews contends the court
improperly applied the presumption of undue
influence. The court found White and Matthews had formed a confidential relationship
in which Matthews was the stronger party.
They had a mother-daughter type relationship,
and Matthews was also White’s caretaker,
advisor and spiritual healer, and assisted in
White’s financial matters. The court’s factual
findings are supported by the record and are
sufficient to establish a confidential relationship existed. Matthews next contends there
was no evidence she participated in the procurement or preparation of White’s 2003 will.
She stated her only act was driving White to an
attorney when White wanted to give her
$600,000. The record discloses much greater
involvement by Matthews than merely driving
White to the attorney. White had never used
Mr. Colpitts as an attorney before Matthews
recommended him and drove White to see
him. Matthews, however, had previously
employed Colpitt’s legal services in several
matters. This is sufficient evidence to find Matthews participated in the procurement or preparation of the will. In addition, the record supports the court’s finding that White did not
receive disinterested and independent advice.
Credibility is particularly important in this
case. The court specifically found Matthews
was not credible because she had a pattern of
offering false or misleading sworn testimony
in previous legal proceedings. There was sufficient evidence of undue influence to support
the trial court’s finding denying probate of the
Vol. 78 — No. 25 — 9/15/2007
will. AFFIRMED. Opinion by Mitchell, V.C.J.;
Adams, J., and Joplin, P.J., concur.
104,012 — In Re: Mary Augusta White Revocable Living Trust, Terry B. Alford, Petitioner/
Appellee, v. Casandra Matthews, Respondent/
Appellant. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable Linda G.
Morrissey, Judge. Appellant (Matthews)
appeals from an order setting aside the 2003
Trust of decedent (White) on the basis that it
was procured by Matthews’ undue influence.
The court also removed Matthews as successor
trustee and found the controlling instruments
of White’s Trust were the 1999 Trust and the
First Amendment dated July 11, 2002. Appellee
(Alford), who was a beneficiary under White’s
prior Trust, filed applications to remove Matthews as the successor trustee and declare the
2003 Amended and Restated Trust invalid.
Matthews asserts the court erred by applying
the presumption of undue influence, and contends the finding of undue influence was
against the clear weight of the evidence. The
court found White and Matthews had formed
a confidential relationship in which Matthews
was the stronger party. They had a motherdaughter type relationship, and Matthews was
also White’s caretaker, advisor and spiritual
healer, and assisted in White’s financial matters. The court’s factual findings are supported
by the record and are sufficient to establish a
confidential relationship existed. Matthews
next contends there was no evidence that she
participated in the procurement or preparation
of White’s 2003 Amended and Restated Trust.
Matthews stated her only act was driving
White to an attorney when White wanted to
give her $600,000. The record discloses much
greater involvement by Matthews than merely
driving White to the attorney. White had never
used Mr. Colpitts as an attorney before Matthews recommended him and drove White to
see him. Matthews, however, had previously
employed Colpitt’s legal services in several
matters. This is sufficient evidence to find Matthews participated in the Trust’s procurement
or preparation. In addition, the record supports the court’s finding that White did not
receive disinterested and independent advice
from Colpitts or Magee, the attorney who
worked with him. Based on his prior representations of Matthews, the court determined
Colpitts was not a disinterested party and had
failed to advise White about undue influence
and conflicts of interest. Further, Magee and
Colpitts had held themselves out as the law
firm of “Magee & Colpitts,” casting serious
doubt on the independence of any advice from
2365
Magee. Credibility was particularly important
in this case. The court specifically found Matthews was not credible because she had a pattern of offering false or misleading sworn testimony in previous legal proceedings. There
was sufficient evidence of undue influence to
support the trial court’s finding setting aside
the Amended and Restated Trust. AFFIRMED.
Opinion by Mitchell, V.C.J.; Adams, J., and Joplin, P.J., concur.
104,209 — In the Matter of D.B. & J.B.,
Deprived Children: State of Oklahoma, ex rel.
Department of Human Services, Child Welfare
Division, Plaintiff/Appellee, v. Janet Bishop,
Defendant/Appellant, and Daniel Bishop, Sr.,
Defendant. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable Nan
J. Patton, Judge. Appellant (Mother) appeals
from an order of the trial court denying her
petition to vacate the court’s default judgment,
which terminated her parental rights to two of
her children, D.B. and J.B. Mother asserts she
had sustained a serious injury less than two
weeks prior to the trial, which resulted in
memory loss that caused her to forget the date
of her trial. Mother contends the court should
have vacated the default judgment pursuant to
12 O.S. 2001 §1031(7), on the basis that this was
an unavoidable casualty that prevented her
from attending the termination trial. After conducting an evidentiary hearing, the court found
Mother failed to prove she was prevented from
attending the trial due to an unavoidable casualty. The court stated the evidence did not support Mother’s assertion that she had sustained
any memory loss as a result of the injury. It is
undisputed that Mother received the required
notice of the termination hearing. Further,
there was no evidence in the appellate record
of any violation of Mother’s rights. Although
Mother was not present, she was represented
by an attorney at the trial. There is no indication in the record that Mother’s attorney
requested a continuance due to Mother’s nonappearance or objected to judgment being
entered against her. The Journal Entry states
the case came on for trial on the merits, and
after examining the documents and records on
file and hearing sworn testimony, the court
determined mother’s parental rights should be
terminated. The trial court specifically found
the grounds alleged in the petition were proper
for termination, and it was in the children’s
best interests to terminate her rights. After
carefully examining the entire appellate record,
we agree Mother failed to prove unavoidable
casualty. AFFIRMED. Opinion by Mitchell,
2366
V.C.J.; Adams, J., concurs, and Joplin, P.J.,
dissents.
104,243 — Covenant Life Family Worship
Center, Plaintiff/Appellant, v. Smith and Pickel Construction, Inc., and Elliott & Associates
Architects, Defendants/Appellees. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Patricia G. Parrish,
Judge. Appellant (Covenant), formerly known
as Calvary Missionary Baptist Church, appeals
summary judgments to Appellee (S&P) on
breach of contract and negligence claims, and
on its negligence claim against Appellee
(Elliott). The trial court held each of these
claims time-barred. The applicable statute of
limitations for breach of a written contract is
five years. When applied to construction contracts, the general rule is the limitations period
begins to run when the work is completed.
Moreover, the five-year limitations period for a
breach of contract action cannot be tolled by a
“discovery” principle. Because Covenant initiated the present lawsuit more than seven years
after S&P completed its work on the project, its
breach of contract action is time-barred by the
five-year statute of limitations. Covenant likewise failed to identify a genuine factual dispute regarding the date by which it had sufficient knowledge of alleged construction defects
to be put on notice of a need to investigate further to determine whether a negligent cause of
action existed. The type of damage of which
Covenant became aware between 1998 and
2001 would have lead a reasonably prudent
entity to pursue actions against both S&P and
Elliott. Because Covenant did not file negligence claims against S&P and Elliott until well
over two years after it discovered the alleged
construction defects, we hold the trial court
properly granted the motions for summary
judgment of both S&P and Elliott. AFFIRMED.
Opinion by Mitchell, V.C.J.; Adams, J., and
Joplin, P.J., concur.
103,628 — Krystal Peterson Gross, Plaintiff/
Appellee, v. Russell J. Balasco, Defendant/
Appellant. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable Jefferson
D. Sellers, Judge. Appellee (Gross), a flight
attendant for Delta Air Lines (Delta), alleges
passenger Appellant (Balasco) negligently
struck her in the face with his elbow May 23,
1997, while boarding a flight in Tulsa. After
Balasco failed to appear at a pretrial conference, the trial court entered default judgment
against him on the issue of liability. At the
subsequent damages trial, the jury awarded
Vol. 78 — No. 25 — 9/15/2007
Gross $0 in actual damages and found Balasco’s actions did not merit punitive damages.
The trial court granted Gross’s motion for new
trial, finding the $0 verdict constituted “inadequate damages” not supported by the evidence. Balasco appeals. Gross filed a workers’
compensation claim regarding the incident
and Delta paid a total of $47,504.23 to cover all
of her related medical bills. Gross deliberately
introduced the fact and results of her worker’s
compensation claim and Delta’s resulting right
of subrogation as part of her trial strategy
despite the potential of such evidence to be
highly prejudicial to her. Gross wanted the
jury to take her $47,504.23 in worker’s compensation benefits into consideration and use
that amount as their starting point in assessing
damages against Balasco. In so doing, Gross
knowingly assumed the risk that the knowledge of Delta’s payment of all her medical bills
would cause the jury to conclude she required
no further financial compensation to be made
whole. The fact Gross’s strategy backfired
does not entitle her to a new trial. In addition,
facts in evidence showed certain of Gross’s
alleged injuries predated the elbowing incident and some of the medical treatment she
received was unnecessary. From this, the jury,
even taking into account Gross’s lost wages
and pain suffering, could have concluded
Delta had over compensated Gross for her
injury and she was entitled to nothing more.
The trial court abused its discretion in granting
Gross a new trial because the jury’s $0 verdict
conformed both to the evidence presented and
the jury instructions given. Gross did not
object to the jury instructions at trial and failed
to demonstrate that the instructions, as written, comprised fundamental error. REVERSED.
Opinion by Mitchell, V.C.J.; Adams, J., concurs,
and Joplin, P.J., dissents with a separate
opinion.
104,486 — Nora Price Neunlist, Christian
Dee Neunlist, both individually and as Personal Representatives of the Estate of Matthew
John Neunlist, Plaintiffs/Appellants, v. (1)
Build One Development, LP, an Oklahoma
Limited Partnership, (2) Build One Construction, Inc., an Oklahoma Corporation, (3) Build
One Properties, Inc., an Oklahoma Corporation, (4) James Hovell, Defendants/Third-Party
Plaintiffs/Appellees, and (5) Salvadore
Deloera, (6) XYZ Corporation, (7) John Doe,
Defendants, v. Sand Express, Inc., Third-Party
Defendant. Appeal from the District Court of
Kingfisher County, Oklahoma. Honorable
Ronald G. Franklin, Judge. Appellants (Neunlist) appeal from a summary judgment in an
Vol. 78 — No. 25 — 9/15/2007
action for the wrongful death of their son, Matthew. They alleged Appellees (Build One) had
a pile of sand on their construction site that
was an attractive nuisance. Matthew died
when he attempted to tunnel into the sand pile
and it collapsed on him. The Build One Defendants filed a motion for summary judgment,
arguing the attractive nuisance doctrine was
not applicable because Matthew was over the
age of fourteen. They also maintained the
sand pile was not an attractive nuisance
because it did not present any hidden danger.
They also contended Matthew was a trespasser
to whom they only owed a duty to not willfully and wantonly injure. The trial court
granted summary judgment as to the Build
One Defendants only. The attractive nuisance
doctrine did not apply because Neunlists failed
to rebut the presumption that Matthew was
capable of exercising due care for his own
safety. We find no evidence Matthew had
diminished mental capacity at the time of the
accident. His parents testified he was an intelligent child who was sufficiently mature to be
outside without supervision. Further, Mother
admitted she specifically warned Matthew to
stay away from the construction site. Both
parents would have expected Matthew to obey
without constant reminders. Plaintiffs failed to
present any evidence to rebut the prima facie
presumption that Matthew had the capacity as
a fifteen-year-old to exercise due care for his
own safety. Further, summary judgment was
appropriate on the issues of negligence, intentional tort, and punitive damages because
there was no evidence the Build One Defendants acted willfully, wantonly or intentionally.
AFFIRMED. Opinion by Mitchell, V.C.J.;
Adams, J., and Joplin, P.J., concur.
(Division No. 4)
102,385 — In Re The Marriage Of: Laurie
Ann Smith, Petitioner/Appellee, v. Jeffrey
Hutchins Smith, Respondent/Appellant.
Appeal from an Order of the District Court of
Canadian County, Hon. Gary D. McCurdy,
Trial Judge. Husband appeals the trial court’s
designation of the parties’ home as Wife’s
separate property. The evidence in the case
supports the trial court’s decision that the
matter is governed by Larman v. Larman, 1999
OK 83, 991 P.2d 536. The decision is therefore.
AFFIRMED. Opinion from Court of Civil
Appeals, Division IV, by Gabbard, P.J.;
Goodman, J., and Reif, J., concur.
103,814 — Robert Winfield Vail, Petitioner, v.
Sears Roebuck & Company, Liberty Mutual
2367
Insurance, and The Workers’ Compensation
Court, Respondents. Proceeding to Review an
Order of the Workers’ Compensation Court,
Hon. Kenton W. Fulton, Trial Judge, denying
workers’ compensation benefits to Claimant.
Competent evidence in the form of a physician’s report supports the decision of the
workers’ compensation court. The decision is
therefore SUSTAINED. Opinion from Court of
Civil Appeals, Division IV, by Gabbard, P.J.;
103,940 — Karl D. Hoff, Petitioner, v. Super C
Mart, Inc., Benchmark Insurance Company,
and The Workers’ Compensation Court,
Respondents. Proceeding to Review an Order
of a Three-Judge Panel of the Workers’ Compensation Court, Hon. Gene Prigmore, Trial
Judge, finding (1) Claimant’s alleged knee
injury was not a consequential injury causally
related to his compensable back injury, and (2)
Claimant’s work activities for Employer were
not similar to those for another employer.
There is no evidence in the record to support
(1). The record does support (2). SUSTAINED
IN PART, VACATED IN PART, AND REMANDED WITH DIRECTIONS. Opinion from Court
of Civil Appeals, Division IV, by Gabbard, P.J.;
supports the court’s findings. SUSTAINED.
Opinion from Court of Civil Appeals, Division
IV, by Gabbard, P.J.; Goodman, J., and Reif, J.,
concur.
103,948 — State of Oklahoma, ex rel. Department of Transportation, Appellant, v. Lamar
Central Outdoor, Inc., an Oklahoma corporation, Appellee, and Sober Brothers, Inc., an
Oklahoma corporation, Interested Party.
Appeal from the District Court of Kay County,
Hon. Rob Galbraith, Trial Judge. State of Oklahoma, ex rel. Department of Transportation,
appeals the trial court’s October 23, 2006, order
denying their exception to the August 17, 2005,
Report of Commissioners. Based upon our
review of the facts and applicable law, we
reverse and remand for further proceedings.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of
Civil Appeals, Division IV, by Goodman, J.;
Gabbard, P.J., and Reif, J., concur.
104,276 — Kenneth Carl Karnes, Claimant/
Appellant, v. J.E.T. Powerline, Inc., Dallas
National Insurance Company (f/k/a Dallas
Fire), and The Workers’ Compensation Court,
Respondents/Appellees. Proceeding to Review
an Order of a Three-Judge Panel of the Workers’ Compensation Court, Hon. Gene Prigmore, Trial Judge. Claimant Kenneth Carl
Karnes seeks review of a three-judge panel’s
January 17, 2007, order which affirmed in part
and modified in part the trial court’s September 12, 2006, order denying his claim for workers’ compensation benefits. We find the order
denying Claimant’s claim for compensation is
supported by competent evidence and sustain
the order under review. SUSTAINED. Opinion
by Court of Civil Appeals, Division IV, by
Goodman, J.; Gabbard, P.J., concurs, and Reif,
J., dissents.
104,026 — McBeth Sample, Jr., Plaintiff/
Appellant, v. The State of Oklahoma, ex rel. The
Board of Tests for Alcohol and Drug Influence,
a State Agency; Kenneth E. Blick, Ph.D., In His
Official Capacity; Steve Brookman, In His Official Capacity; Charles Spencer, In His Official
Capacity; Byron G. Cox, In His Official Capacity; Sheriff John Whetsel, In His Official Capacity, Defendants/Appellees. Appeal from the
District Court of Oklahoma County, Hon. Carolyn R. Ricks, Trial Judge. Employee McBeth
Sample, Jr., appeals the trial court’s dismissal
of his claim for damages for wrongful termination of employment. The appeal was assigned
to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(a)(2), 12 O.S.2001
and Supp. 2003, ch. 15, app. 1. Based upon our
review of the facts and applicable law, we
affirm in part, reverse in part, and remand for
further proceedings. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED FOR
FURTHER PROCEEDINGS. Opinion from
Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., and Reif, J., concur.
104,359 — Roger Craig d/b/a Craig’s Steel
Buildings, Petitioner, v. Scott Simms and the
Workers’ Compensation Court, Respondents.
Proceeding to Review an Order of the Workers’ Compensation Court, Hon. H. Thomas
Leonard, Trial Judge, finding that Claimant
was an employee of Employer and rejecting
Employer’s defenses that Claimant was an
independent contractor and was intoxicated at
the time of his injury. Competent evidence
104,211 — Elva Jane Melton, Claimant, v.
Directory Distributing Associates III, Inc.,
Respondent, and Legion Insurance Company
&/or Oklahoma Property & Casualty Insurance Guaranty Assn (NLC), Insurance Carrier/Appellant, Chubb Indemnity Insurance
Company, Interested Party/Appellee. Proceeding to Review an Order of a Three-Judge Panel
of the Workers’ Compensation Court, Hon.
Ellen C. Edwards, Trial Judge. Legion Insur-
2368
Vol. 78 — No. 25 — 9/15/2007
ance Company (Legion) appeals a three-judge
panel’s order denying its motion seeking reimbursement from Chubb Indemnity Insurance
Company (Chubb). Legion claims Chubb
should have been ordered to pay the workers’
compensation award made to Claimant Elva
Melton. Instead, the panel affirmed the trial
court’s decision that the award be paid by
Legion, a decision Legion claims was erroneous. Based upon our review of the facts and
applicable law, we sustain the order under
review. SUSTAINED. Opinion from Court of
Civil Appeals, Division IV, by Goodman, J.;
Gabbard, P.J., and Reif, J., concur.
103,910 — Harmon Memorial Hospital and
Mega Life & Health Insurance Company, Petitioners, v. Venas Dean Jackson and the Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge
Panel of the Workers’ Compensation Court,
Hon. Ellen C. Edwards, Trial Judge, finding
that Claimant is entitled to TTD benefits and
medical treatment for injury to her lower back.
Though there is a lack of medical record evidence that Claimant discussed low back pain
with her doctors, competent evidence supports
the court’s decision that her low back injury
was sustained in the course and scope of her
employment. SUSTAINED. Opinion from the
Court of Civil Appeals, Division IV,
by Gabbard, P.J.; Reif, J., and Goodman, J.,
concur.
103,944 — Jerry D. Kuykendall and Barbara
G. Kuykendall, husband and wife, Plaintiffs/
Appellants, v. The Town of Bethel Acres, a
Municipal Corporation, Defendant/Appellee,
and Thomas Wise, Defendant. Appeal from
Order of the District Court of Pottawatomie
County, Hon. Douglas L. Combs, Trial Judge,
vacating a grant of summary judgment. Town’s
motion to vacate did not state what specific
portion of 12 O.S.2001 § 1031 it was relying on.
However, it was clearly based in part of the
allegation that Plaintiffs received what was
essentially a default judgment due to lack of
notice. Section 1031 (Third) is primarily concerned with just this issue. Thus, we cannot
say Town failed to substantially comply with
§1031, which is all that is necessary to trigger
the statute. AFFIRMED. Opinion from Court
of Civil Appeals, Division IV, by
Gabbard, P.J.; Goodman, J., and Reif J., concur.
104,204 — Betty Hall, Plaintiff/Appellant, v.
VIA Christi Oklahoma Regional Medical Center, Defendant/Appellee. Appeal from Order
Vol. 78 — No. 25 — 9/15/2007
of the District Court of Kay County, Honorable
D.W. Boyd, Trial Judge, granting summary
judgment to Defendant in this wrongful discharge action. The public policy exception to
the terminable at-will employee doctrine
expressed in Burk v. K-Mart Corp., 1989 OK 22,
770 P.2d 24, does not apply here. Plaintiff
asserts she was discharged for performing acts
consistent with the reporting requirements of
Oklahoma’s Protective Services for Vulnerable
Adults Act, but the Act requires that reports of
vulnerable adult abuse be reported to the
Department of Human Services or certain law
enforcement agencies, and Plaintiff did not do
either. Neither is Plaintiff protected as an internal whistle-blower, because she failed to meet
the requirements of Burk. AFFIRMED. Opinion from Court of Civil Appeals, Division IV,
by Gabbard, P.J.; Goodman, J., and Reif, J.,
concur.
104,274 — In the Matter of the Estate of:
Rebecca K. Wallace, Deceased. Ray Eidemiller,
Appellant, v. Pamela Lipscomb, Appellee.
Appeal from the District Court of Oklahoma
County, Hon. Brian H. Upp, Trial Judge, granting summary judgment in favor of Appellee.
The undisputed facts establish: Decedent executed a valid will; she never made a writing
declaring the will revoked and never destroyed
the will; and she never executed another will.
While Appellant contends Decedent intended
to revoke the will, and may have thought she
had done so by destroying all the originals she
thought existed, the fact remains she did not
do either. AFFIRMED. Opinion from Court of
Civil Appeals, Division IV, by Gabbard, P.J.;
Reif, J., and Goodman, J., concur.
104,588 — David A. Ciempa, Petitioner/
Appellant, v. Glynn Booher, Warden, Respondent/Appellee. Appeal from the District Court
of Okfuskee County, Hon. Lawrence W. Parish,
Trial Judge, dismissing Petitioner’s petition for
mandamus. Petitioner, an inmate, failed to
exhaust his administrative remedies before filing his lawsuit. AFFIRMED. Opinion from
Court of Civil Appeals, Division IV, by Gabbard, P.J.; Reif, J., and Goodman, J., concur.
104,721 — Deutsche Bank National Trust
Company, as Trustee of Ameriquest Mortgage
Securities Inc. Asset Backed Pass Through Certificates, Series 2006-R1 Under the Pooling and
Servicing Agreement dated as of February 1,
2006, Plaintiff/Appellee, v. David Daniel and
Diana D. Nelson, Husband and Wife, Defendants/Appellants, and Occupants of the Premises, and Lance James Nelson and Jane, his
spouse if married, Defendants, and Ameri-
2369
quest Mortgage Co., Inc., Third-Party Defendant. Appeal from the District Court of Cleveland County, Hon. William C. Hetherington,
Jr., Trial Judge, granting summary judgment in
favor of Plaintiff in this foreclosure action. The
trial court’s judgment is supported by the evidentiary material submitted and by the law.
The journal entry of judgment adequately
explains the decision. SUMMARY AFFIRMANCE. Opinion from Court of Civil Appeals,
Division IV, by Gabbard, P.J.; Reif, J., and
Goodman, J., concur.
ORDERS DENYING REHEARING
(Division No. 1)
103,579 — Michael Alan Hall and Lori J. Hall,
Husband and Wife, Plaintiffs/appellees, vs.
Robert K. Roden, Sr. And Naita L. Roden, Individually and as Trustees of the Roden Family
Trust Dated April 11, 2001, Defendants/Appellants. Defendants/Appellants’ Petition for
Rehearing is DENIED.
104,256 — Oklahoma City Golf & Country
Club and Valley Forge Insurance Company,
Petitioners, v. George R. Stell and The Workers’
Compensation Court, Respondents. Petitioner’s
Petition for Rehearing is DENIED.
104,524 — Tom Horn; Elnora R. Williams;
Mary Lorene Horn; Thresa Arthur; Donna Horn;
Thomas Ray Smith; Gladys Rae Alexander;
Harry Horn; Lisa Kay Carter; Mary Sue Brooks;
Jacqueline Chappell Johnston; Carl G. Chappell;
Jerry Chappell; Betty L. Chappell; Clyde M.
Horn; George R. Horn, a/k/a G.R. Horn, Jr.;
Bette J. Heyer; and Lola Horn, Plaintiffs/Appelant, vs. Larry Jake Horn and Linda Sue Horn;
Fred Michael Horn, a/k/a Fred Horn and Jo
Ann Horn, Trustees of the Fred Horn Loving
(a/k/a Living) Trust Dated March 27, 1990;
Myrna Delores Shook; Gothic Production Cor-
poration; Key Operating Company; Chesapeake
Operating, Inc.; and Chesapeake Exploration,
Limited Partnership, Defendant/Appellees.
Plaintiffs/Appellants’ Petition for Rehearing is
DENIED.
103,330 — State of Oklahoma, ex rel. Department of Transporation, Plaintiff/Appellant, v.
Hugh Edward Robinson and Margie Jeanne
Robinson, Co-Trustees of the Hugh Robinson
Management Trust dated June 10, 1992; Hugh R.
Robinson, deceased, his/her known or unknown
heirs; executor, administrators, legatees, devisees, trustees, creditors, and assigns; Margie J.
Robinson; and the Tulsa County Treasurer,
Defendant/Appellees. The Petition for Rehearing filed by Plaintiff/Appellant on July 20, 2007
is DENIED.
(Division No. 2)
103,721 — Julie Beard, Plaintiff/Appellant, v.
Barry Love and 77 Corporation, an Oklahoma
corporation, Defendants/Appellees. Appellees’
Petition for Rehearing is DENIED. All Judges
concur.
(Division No. 3)
103,578 — In Re the Marriage of Birtie L.
Rosser, Petitioner/Appellee, and Truman C.
Rosser, Respondent/Appellant. Respondent’s
Petition for Rehearing is DENIED.
(Division No. 4)
102,880 — In Re the Marriage of: Rex Dean
Hutton, Petitioner/Appellant, v. Shawn Dell
Hutton (now Kelley), Respondent/Appellee.
Petition for Rehearing is DENIED. All judges
concur.
Not all problems
L
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A
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W
emotional or psychological stress,
Y
please call
H ELPING
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LAWYER S
2370
Vol. 78 — No. 25 — 9/15/2007
CLASSIFIED ADS
SERVICES
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forensics, hazardous tree assessments, expert witness,
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reports, tree inventories, DNA/soil
testing, construction damage. Bill Long, ISA
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Alumnus, All of Oklahoma and beyond, (405) 996-0411.
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]
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
OFFICE SPACE
Arthur D. Linville (405) 636-1522
401 N. Hudson - Downtown OKC one block from
the courthouse. Small furnished office with receptionist, conference room, telephone, fax and copier included. Free tenant and client parking. Contact Sig Harpmen @ 405 659-6740.
SIR, LLC. Self - Storage Facility. 4321 S.E. 33rd, Del City,
OK (1 blk east of Sunnylane). Climate Controlled
Indoor Spaces Available. 24 hour Video Surveillance.
25% off first 3 months rent (new accounts only).
(405) 677-0795.
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.
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MEDICAL MALPRACTICE
Board-certified doctor expert witnesses, all specialties:
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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].
Experts in Economic Damages
Anderson Economic Group, LLC
Lost Earnings Calculations, Commercial Damages,
Antitrust, Business & Asset Valuations, Fairness Opinions,
Franchise Disputes. Contact Patrick Fitzgerald at (405)
360-4040 or visit www.AndersonEconomicGroup.com
Appeals and litigation support — Expert 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].
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]
Vol. 78 — No. 25 — 9/15/2007
VIRTUAL OFFICE FOR SOLOS - Save on overhead and
use this nicely furnished office located at 3801 North
Classen to meet with clients. 12 pre-scheduled hours
per week for $125.00 / month. No long term contracts.
Call Mike at (405) 528-4357.
POSITIONS AVAILABLE
AV-RATED OKLAHOMA CITY FIRM seeks two attorneys. One should have 2-5 years experience, and must
have excellent writing skills and a strong academic background. The other should have at least 5 years experience, and must have trial experience. Both positions will
emphasize in civil rights, employment law and insurance
defense cases. Please submit resume and salary requirements to Box “D,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.
IMMEDIATE OPENING FOR ATTORNEY. Small, but
very busy, plaintiff’s personal injury law firm in Midtown seeks associate attorney. Beautiful office, fantastic
location, great support staff. Must have excellent computer and organizational skills and be ready to hit the
ground running. Experience in personal injury law
highly recommended. Salary negotiable. Benefit package includes medical and dental insurance. All inquiries kept confidential. Please submit resume and salary
requirements to Box “F,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
NURSE CONSULTANT - Available for medical chart
review; well qualified RN with extensive experience in
a variety of medical fields. Areas of expertise include
OB, medical-surgical and inpatient and ambulatory
surgical care. Please e-mail [email protected]
2371
POSITIONS AVAILABLE
POSITIONS AVAILABLE
AV -RATED SIX ATTORNEY TULSA FIRM with strong
client base seeks an experienced attorney to work in
the areas of title examination, real estate contracts
and creditor representation. Excellent benefits include
health, dental and life insurance, cafeteria benefits plan,
vacation and 401K program. Our attorneys are aware of
this advertisement. Submit resume and salary requirments in strictest confidence. Send replies to Box “T,“
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
Large prestigious Oklahoma firm is actively
seeking a Litigation Associate for Oklahoma City office
interested in working in multiple practice areas. Ideal
candidate will have 1-3 years litigation experience.
Candidate will be groomed to grow into leadership
position and will have responsibilities in all phases of
litigation, including research and drafting, discovery,
and court appearances, as well as managing a case
load. Strong client service values, writing, analytical
and strategic thinking skills required. This is an excellent opportunity to work for a great law firm, with
competitive salary and bonuses. All interested parties,
please respond to: [email protected]
AV NW OKC FIRM engaged in litigation, business, and
estate planning, seeking an attorney with 3-15 years of
experience with proven ability to handle own caseload
with strong research/writing skills. Send resume, writing sample and salary requirements to lawfirmad
@gmail.com.
Oklahoma Trial Lawyers Association is
seeking an Executive Director to work in its Oklahoma
City headquarters. Compensation includes salary plus
performance bonus and benefits. Applicants should
send resume’ and cover letter with salary requirements
to [email protected]. A job description will be forwarded to qualified applicants. All inquiries strictly
confidential.
OKLAHOMA CITY FIRM focusing mainly in personal
injury and criminal law practice seeks associate. Competitive salary. Flexible hours. All contacts will be kept
confidential. Send resume to Box “I,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
In house Counsel position available with legal
department of private corrections company. Duties
may include labor and employment law, general corporate transactions, real estate, litigation and contract
analysis and negotiation. Candidates should have an
excellent academic record and/or proven experience
with the ability to handle multiple tasks. Salary commensurate with experience. Send resume and transcript
to Quin Brady, 13401 Railway Drive, Oklahoma City,
OK 73114
COALGATE FIRM seeks attorney — General small
practice with clients requiring a high service level, including some nights and weekends. Earnings will be
contingent upon performance with a range of 60K to six
figures. Newly licensed or soon to be licensed attorneys
are encouraged to apply. Send resumes to [email protected].
RAINEY, ROSS, RICE & BINNS, AV-rated OKC firm is
seeking a litigation attorney with strong research and
writing skills, and 0-3 years experience. Send resume
and writing samples in confidence to: Office Manager,
Rainey, Ross, Rice & Binns, 735 First National Center
West, Oklahoma City, Oklahoma 73101-2324
AV Rated law firm seeks associate attorney for its
Tulsa office. Requirements for consideration: candidate
must have 2-5 years’ litigation experience; strong academic performance (top 15% of class); self-starter with
ability to accept increasing responsibilities. Submit
resume by September 27, 2007 to: Andrea D. Everage,
PHR, Legal Administrator, Fellers Snider, The Kennedy
Building, 321 S. Boston, Suite 800, Tulsa, OK 74103.
Northwest Arkansas law firm seeks tax
associate. LLM and accounting background prefered. Practice areas include estate planning, taxation,
real estate and business representation. Mail, fax or
email cover letter, resume, and salary requirements to
Erma Palm, Harrington, Miller, Neihouse & Kieklak,
P.A., 5507 Walsh Lane, Suite 102, Rogers, AR 72758
Fax (479) 271-7247 Email: [email protected]
OKC law firm has immediate opening for associate.
Must have experience or interest in medical malpractice defense litigation. Accepting resumes in confidence
from attorneys with 0+ years of experience. Send
resume, writing sample, references and salary requirements to Box ”O,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152.
Downtown OKC law firm seeks a self-motivated
associate with 3-5 years of experience in civil practice.
Salary commensurate with experience. Send resume
and salary requirements to: Box “E,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
OKLAHOMA CITY LAW FIRM concentrating in
the statewide representation of mortgage
lenders seeks experienced title attorney.
Title examination experience required. Statewide travel required. Send resume and salary
requirement to Kirk J. Cejda c/o Shapiro & Cejda,
L.L.P., 770 N.E. 63rd, Oklahoma City, OK 73105 or
by e-mail to [email protected]
2372
FOLIART, HUFF, OTTAWAY & BOTTOM has an immediate opening for a motivated associate with 0-3 years
experience in insurance defense practice. Successful
candidate will assume responsibilities in all phases of
litigation, including research, discovery, document
analysis, depositions, court appearances, and case load
management. Must be detail oriented. Strategic thinking skills and some travel required. Competitive salary
and benefits for commensurate qualifications, experience and performance. Send resume, cover letter outlining previous litigation experience, and writing sample not to exceed five pages to Recruiting Coordinator,
201 Robert S. Kerr Avenue, 12th Floor, Oklahoma City,
Oklahoma, 73102
Vol. 78 — No. 25 — 9/15/2007
POSITIONS AVAILABLE
POSITIONS AVAILABLE
NORTHEAST OKLAHOMA: 3 Attorney AV Rated
Law Firm is seeking associate with 1 to 4 years experience. Duties will include work in all areas of the civil
law practice. Salary commensurate with experience.
Send reply in confidence to Box “H,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
AV rated downtown OKC insurance
defense litigation firm seeks associate with
2 - 4 years experience. Salary commensurate with
experience. Please send resumes to: Box “L,” Oklahoma Bar Association, P.O. 53036, Oklahoma City, OK
73152
The law firm of Pierce Couch Hendrickson Baysinger & Green, L.L.P. is accepting
resumes for an associate attorney with at least two
years of experience. Insurance defense and/or medical
malpractice experience preferred. Please send resumes
to P.O. Box 26350, Oklahoma City, OK 73126.
Work Comp Atty Needed in a growing firm – Tulsa
OK. Prefer 2 years exp. Fax Resume 918-583-4166
DEPUTY GENERAL COUNSEL I/II* Up to $58.4K +
state benefits package FT. Active membership in the
State Bar of Oklahoma and Level I: 1 yr exp in the practice of law OR Level II: 3 yrs exp in the practice of law.
Preference for: Legal experience at OHCA; Adv education; Use of computer research & case management
software; Legal exp w/ health care insurance; Administrative hearing exp. **Position may be filled at a I or
II. If hired into the I, may be promoted to an II pending
successful completion of initial 18 month employment
period. Download appl. and questionnaire from website. Deadline: Sept 21, 2007. OK Health Care Authority
Attn: Human Resources 4545 N. Lincoln Blvd., Ste. 124
OKC, OK 73105. [email protected] www.okhca.
org/jobs EOE
WANT TO PURCHASE: Complete set of hardbound
volumes, Pacific 1st and Pacific 2nd of Oklahoma
Decisions (West Publishing). Call Sandy 918-584-0462.
AV rated downtown OKC law firm is seeking
a part-time associate to assist with personal injury/
products/insurance defense litigation. Three years or
more of experience preferred. Flexible hours available.
Please e-mail [email protected] if interested
Pottawatomie County District Attorney’s
office seeks an Assistant District Attorney. Criminal
experience preferred, but not necessary. Position to
start October 1, 2007. Send resume to District Attorney
Richard Smothermon, 331 North Broadway, Shawnee,
OK 74801.
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2373
OBA/CLE and the OBA Women in Law Committee Present
Powerhouse Communication Tools for Today's Women
Lawyers: The 2007 Women in Law Conference
DATE &
LOCATION:
Oklahoma City
September 27, 2007
The Skirvin Hilton Hotel
One Park Avenue
CLE CREDIT:
This course has been approved by the Oklahom a Bar Association Mandatory Continuing Legal
Education Com m ission for 6 hours of mandatory CLE credit, including .5 hours of ethics.
TUITION:
$150 for CLE only early-bird registrations with paym ent received at least four full business days
prior to the sem inar date; $175 for CLE only registrations received within four full business days of
the sem inar date. For hotel accomm odations call the Skirvin at 405-272-3040 by August 31, 2007
and ask for the special OBA rate. No discounts
CANCELLATION
POLICY:
Cancellations will be accepted at any tim e prior to the sem inar date; however, a $25 fee
will be charged for cancellations made within four full business days of the sem inar date.
Cancellations, refunds, or transfers will not be accepted on or after the sem inar date.
Program Planners/Moderators
Elizabeth Joyner, Esq., Senior Counsel, The Williams Companies, Inc.; Author of "Love Renewed", Tulsa
Faith Orlowski, Sneed Lang, P.C., Tulsa
Cathy Christensen, Attorney at Law, Oklahoma City
Program:
8:30 a.m.
Registration and Continental Breakfast
9:00
Tune Up Tools for Defining Your Success:
Creating a Five-Year Plan
11:05
Dr. Joan Goldsmith
12:15
Lunch (included in registration)
Dr. Joan Goldsmith, Management and
"Love Renewed" A practical and romantic
Organizational Consultant, Santa Monica, CA
way to enhance communication in your
relationship
10:05
Break
10:15
Women's Wisdom: Guiding the Next
Elizabeth Joyner, Esq.
Generation (ethics)
1:00
Look Good, Feel Good, Do Good - Business
Etiquette Inside and Out of the Boardroom
Moderator
Ann Hoover, Hoover Protocol & Etiquette
LeAnne McGill, McGill Law Center, Oklahoma
Center, Oklahoma City
City
Deborah Reheard, Attorney at Law, Eufaula
Reta Strubhar, Retired Judge, Piedmont
Linda Martin, Doerner, Saunders, Daniel &
1:50
Break
2:00
Communicating When There is Conflict
Anderson, L.L.P, Tulsa
2374
A Blueprint for Success in Mediation
Dr. Joan Goldsmith
Vol. 78 — No. 25 — 9/15/2007
3:10
Champagne and Strawberries Reception
Sponsored by:
The Williams Company
&
Doerner, Saunders, Daniel & Anderson, L.L.P.
3:40
Adjourn
Each registrant will receive a copy of the book Resolving Conflicts at Work - Revised Edition
by Kenneth Cloke and Joan Goldsmith.
Completely updated, this definitive and comprehensive work provides a handy guide for resolving conflicts,
m iscom m unications, and misunderstandings at work and outlines the authors' eight strategies that show how the inevitable
disputes and divisions in the workplace actually provide an opportunity for greater creativity, productivity, enhanced m orale,
and personal growth. This new edition includes current case studies that put the focus on leadership, managem ent, and
how organizations can design system s to change a culture of avoidance into a culture of creative conflict.
Powerhouse Communication Tools for Today's Women
Lawyers: The 2007 Women in Law Conference
Full Name____________________________________________________
September 27, 2007
Skirvin Hotel, Oklahoma City
 $150 Early-bird registration
 $175 After September 22, 2007
Firm ________________________________________________________
Address _____________________________________________________
City ______________________________ State ________Zip_________
Phone (
) _______________ E - Mail __________________________
Are you a Member of OBA?  Yes  No OBA Bar#________________
Make Check payable to the Oklahoma Bar Association and mail entire page
to: CLE REGISTRAR, P.O. Box 960063 Oklahoma City, OK 73196-0063
Fax (405) 416-7092 Phone •(405) 416-7006
For  Visa or  Master Card Credit Card#
Exp.date___________ Authorized Signature
Vol. 78 — No. 25 — 9/15/2007
2375

Sept 15 - Oklahoma Bar Association

Transcription

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