June 10 - Oklahoma Bar Association

Transcription

Volume 77
◆
No. 17
◆
June 10, 2006
Cour t Mater ial
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The Oklahoma Bar Journal
Vol. 77 — No. 17 — 6/10/2006
OFFICERS & BOARD OF GOVERNORS
William R. Grimm, President, Tulsa
Stephen D. Beam, President-Elect, Weatherford
Jerome A. Holmes, Vice President, Oklahoma City
Julie E. Bates, Oklahoma City
Dietmar K. Caudle, Lawton
Cathy M. Christensen, Oklahoma City
Robert S. Farris, Tulsa
Brian T. Hermanson, Ponca City
Michael W. Hogan, McAlester
R. Victor Kennemer III, Wewoka
Mike Mordy, Ardmore
Jon K. Parsley, Guymon
Deborah A. Reheard, Eufaula
Robert B. Sartin, Tulsa
Alan Souter, Bristow
Keri G. Williams, Stillwater,
Chairperson, OBA/Young Lawyers Division
BAR CENTER STAFF
John Morris Williams, Executive Director;
Dan Murdock, General Counsel; Donita Bourns
Douglas, Director of Educational Programs;
Carol A. Manning, Director of Public Information;
Craig D. Combs, Director of Administration;
Gina L. Hendryx, Ethics Counsel; Jim Calloway,
Director of Management Assistance Program; Rick
Loomis, Director of Information Systems; Beverly S.
Petry, Administrator MCLE Commission; Jane
McConnell, Coordinator Law-related Education;
Loraine Dillinder Farabow, Janis Hubbard and
Mike Speegle, Assistant General Counsels; Robert D.
Hanks, Senior Investigator; Sharon Orth and Ray
Page, Investigators
Nina Anderson, Manni Arzola, Jenn Barrett, Jo
Beall, Cheryl Beatty, Melissa Brown, Brenda Card,
Sandy Cowden, Chaz Davis, Sharon Dotson,
Johnny Marie Floyd, Matt Gayle, Susan Hall,
Suzi Hendrix, Misty Hill, Heidi McComb, Jeanne
Minson, Wanda Reece-Murray, Sandy Neal, Tim
Priebe, Lori Rasmussen, Tracy Sanders, Mark
Schneidewent, Dana Shelburne & Roberta
Yarbrough
EDITORIAL BOARD
Editor in Chief, John Morris Williams
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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
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stories, articles and all mail items should be sent to
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Vol. 77 — No. 17 — 6/10/2006
EVENTS CALENDAR
JUNE
12
OBA Alternative Dispute Resolution Section Meeting; 3 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
13
OBA Law-related Education Committee Meeting; 4 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact: Chip Clark
(405) 232-4271
14
OBA Bar Center Facilities Committee Meeting; 9 a.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Bill Conger (405) 521-5845
16
OBA Communications Task Force Meeting; 1:30 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact: Melissa DeLacerda
(405) 624-8383
17
OBA Title Examination Standards Committee Meeting;
Stroud Conference Center, Stroud; Contact: Kraettli Epperson
(405) 840-2470
22-24 OBA Solo & Small Firm Conference and YLD Midyear Meeting;
Tanglewood Resort on Lake Texoma; Contact: (405) 416-7050
22
Oklahoma Access to Justice Advisory Committee Meeting;
2 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Judge Gary
Lumpkin (405) 521-4956
OBA Board of Governors Meeting; 4 p.m.; Tanglewood Resort on
Lake Texoma; Contact: John Morris Williams (405) 416-7000
26
OBA Law Day Committee Meeting; 1 p.m.; Oklahoma Bar Center,
Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Scott
Pappas (405) 707-0077 or Lee Shilling (405) 527-0332
27
OBA Communications Committee Meeting; 10 a.m.; Oklahoma
Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa;
Contact: Doug Dodd (918) 591-5316
28
State Legal Referral Service Task Force Meeting; 1 p.m.;
Oklahoma Bar Center, Oklahoma City and Tulsa County Bar
Center, Tulsa; Contact: Dietmar Caudle (580) 248-0202
JULY
4
Independence Day (State Holiday)
The Oklahoma Bar Association’s official Web site:
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THE OKLAHOMA BAR JOURNAL is a publication of 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.
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To the actor it’s the OSCAR®
To the Olympian it’s the GOLD
To the singer it’s the GRAMMY
To the lawyer it’s the OBA AWARD
Now is the time to honor someone by nominating them for an
OBA Award. Awards will be presented at the Annual Meeting
to be held Nov. 15-17, 2006 in Tulsa.
Nomination deadline: August 3
More details on the nomination process at www.okbar.org
1708
Vol. 77 — No. 17 — 6/10/2006
OKLAHOMA BAR ASSOCIATION
table of
contents
June 10, 2006
• Vol. 77
• No. 17
page
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EVENTS CALENDAR
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MANDATES
INDEX TO COURT OPINIONS
SUPREME COURT OPINIONS
COURT OF CRIMINAL APPEALS OPINIONS
COURT OF CIVIL APPEALS OPINIONS
APPLICANTS FOR JULY BAR EXAM
BAR NEWS
IN MEMORIAM
DISPOSITION OF CASES OTHER THAN BY PUBLICATION
Vol. 77 — No. 17 — 6/10/2006
1709
Index To Opinions Of Supreme Court
2006 OK 36 Sherrie Sizemore, Plaintiff, v. Continental Casualty Company, d/b/a CNA
Insurance Company, an Illinois Corporation, and Kerr Group, Inc., a Delaware
Corporation, and Transportation Insurance Company, an Illinois Corporation,
Defendants. No. 99,940......................................................................................................................1713
2006 OK 37 In the Matter of the Reinstatement of Thomas Bentley Baines to Membership
in the Oklahoma Bar Association and to the Roll of Attorneys. SCBD No. 5117.....................1720
2006 OK 38 State of Oklahoma, ex rel. OKLAHOMA BAR ASSOCIATION, Complainant,
v. TERRY PAUL MALLOY, Respondent. No. SCBD-4998 ...........................................................1720
Index To Opinions Of Court Of Criminal Appeals
2006 OK CR 20 ALFRED BRIAN MITCHELL, Appellant, v. STATE OF OKLAHOMA,
Appellee. Case No. D-2002-1427......................................................................................................1725
2006 OK CR 21 GEORGE OCHOA, Petitioner, v. STATE OF OKLAHOMA, Respondent.
No. PCD-2002-1286 ............................................................................................................................1757
Index To Opinions Of Court Of Civil Appeals
CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS ..........................1765
CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS ..........................1765
2006 OK CIV APP 52 MATERIAL SERVICE CORP., Plaintiff/Appellant, v. ROGERS
COUNTY COMMISSIONERS, Defendant/Appellee. No. 102,496 ...........................................1766
2006 OK CIV APP 53 ORDER Approved for Publication by the Supreme Court April 17,
2006 SAVE AD VALOREM FUNDING FOR STUDENTS, an unincorporated
association, Plaintiff/Appellant, v. THE OKLAHOMA DEPARTMENT OF
ENVIRONMENTAL QUALITY, THE KAY COUNTY ASSESSOR, and THE
OKLAHOMA TAX COMMISSION, Defendants, and THE STATE BOARD OF
EQUALIZATION and CONOCO PHILLIPS COMPANY, Defendants/Appellees.
No. 102,678 ..........................................................................................................................................1768
2006 OK CIV APP 54 In the Matter of the Income Tax Protest of Casey Dean Alani.
CASEY DEAN ALANI, Protestant/Appellant, v. OKLAHOMA TAX COMMISSION,
Respondent/Appellee. Case No. 101,068.......................................................................................1771
2006 OK CIV APP 55 IN THE MATTER OF THE ESTATES OF DONOVAN MYRL WATSON, Deceased; MYRL LOUISE WATSON, Deceased; and DONOVAN PERREN
WATSON, Deceased. JESSICA DONN WATSON, Petitioner/Appellant, v. SYLVIA
WATSON, Appellee/Cross-Appellant, and TINA MARIE LOVELADY, Personal
Representative of the Estate of Donovan Myrl Watson, Deceased, Cross-Appellee.
Case No. 101,310.................................................................................................................................1774
2006 OK CIV APP 56 ENERGY EXCHANGER COMPANY and AMERICAN
INTERSTATE INSURANCE COMPANY, PETITIONERS, v. TERRY HILL,
CUST-O-FAB, LEGION INSURANCE COMPANY, OKLAHOMA PROPERTY &
CASUALTY GUARANTY FUND and the WORKERS’ COMPENSATION COURT,
RESPONDENTS. No. 101,399...........................................................................................................1777
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2006 OK CIV APP 57 CITY OF TULSA FIRE DEPARTMENT, OWN RISK, Petitioner, v.
KEITH A. MILLER and THE WORKERS’ COMPENSATION COURT, Respondents.
No. 102,009..........................................................................................................................................1781
2006 OK CIV APP 58 BILL PITTMAN and FRANK PITTMAN, Plaintiffs/Appellants, v.
LARRY SAGER and MARY ELLEN SAGER, Defendants/Appellees, and MIKE
McDONALD, in his capacity as Distribution Referee, Defendant. No. 102,498 ......................1783
2006 OK CIV APP 59 MAYS PLUS, INC., and AMERICAN HOME ASSURANCE
COMPANY, Petitioner, v. ANNA ENNIS, and THE WORKERS’ COMPENSATION
COURT, Respondents. No. 102,642 .................................................................................................1787
Vol. 77 — No. 17 — 6/10/2006
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CRIMINAL DEFENSE IN THE DEATH BELT II
Presented by:
OKLAHOMA CRIMINAL DEFENSE LAWYERS ASSOCIATION,
THE OFFICE OF THE OKLAHOMA COUNTY PUBLIC DEFENDER
and
OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW
14 hours of CLE (including 1 hour ethics)
When:
Thursday, July 27, 2006 (Registration: 7:30 – 8:00 a.m. Adjourn: 4:30 p.m.),
Friday, July 28, 2006 (First session: 8:00 a.m. Adjourn: 12:30 p.m.)
Where: Oklahoma City University School of Law, Homsey Moot Courtroom
Learn the skill of death penalty defense work from many of the best practitioners the State of Oklahoma
has to offer. Scheduled speakers: Bob Ravitz, Esq., Oklahoma County Public Defender; Dick Burr, Esq.;
Brian Hermanson, Esq.; Rob Nigh, Esq.; Mark Henricksen, Esq.; Lanita Henricksen, Esq.; Vicki Werneke,
Esq., OIDS; Cynthia Hartung, Ph.D.; Sid Conway, Esq., Tulsa County Public Defender’s Office; Brenda
McCray, and Sandra Collett, Office of the Oklahoma County Public Defender; David Ogle, Esq; Assistant Federal Defenders Lisa McCalmont, Esq., Randy Bauman, Esq. and Scott Braden, Esq.; Lee Ann
Peters, Esq., Wyndi Hobbs, Esq., and Kim Marks of OIDS; Creekmore Wallace, Esq., Jack Gordon, Esq.;
Ray Hand, Ph.D., and Jim Fowler.
Registration
COST:
$110.00 FOR CURRENT OCDLA MEMBERS
$140.00 FOR NON-MEMBERS
$ 75.00 FOR PUBLIC DEFENDERS
$ 75.00 FOR OIDS CONTRACT LAWYERS
$ 65.00 FOR MATERIALS ONLY (mailed after Seminar)
NAME: __________________________________ BAR # ___________________________________________
ADDRESS: _________________________________________________________________________________
CITY, STATE ZIP:___________________________________________________________________________
PHONE: ___________________________ E-MAIL:_______________________________________________
CREDIT CARD NO: __________________________________________ EXP: _________________________
SIGNATURE FOR CREDIT CARD: ____________________________________________________________
Make checks payable to: Oklahoma Criminal Defense Lawyers Assoc.
I certify by my signature below that I am not a fulltime judicial officer, fulltime prosecutor, law
enforcement officer, or employee of these agencies, and that I am actively engaged in the defense of
criminal cases.
Signature: ____________________________________________________ date: _______________________
Mail completed registration to: OCDLA, P.O. Box 2272, OKC, OK 73101-2272.
Questions? Contact Catherine Hammarsten 405-713-1567, Catherine.hammarsten@oscn.net.
1712
Vol. 77 — No. 17 — 6/10/2006
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)
2006 OK 36
Wilson N. Jones, lll, and Susan Hamilton Jones,
Wilson Jones P.C., Tulsa, Oklahoma; Allen
Smallwood, Tulsa, Oklahoma; and Jon Bryan
Wallis, Tulsa, Oklahoma, for Plaintiff.
lectively “Insurer”). In 1991, Claimant was
injured in a job-related accident. She received
awards of workers’ compensation benefits for
both temporary total disability and permanent
partial disability. In November 2000,
Claimant’s temporary total disability payments ceased. Claimant alleges that at that
time she should have started receiving permanent partial disability payments from her
employer’s workers’ compensation insurance
carrier, but did not. In March 2001, the Workers’ Compensation Court found that the permanent partial disability payments were past
due, accelerated the entire balance, and
assessed 18 per cent interest pursuant to section 42(A) of the Workers’ Compensation Act.
Claimant’s action in federal court asserts that
Insurer’s conduct constitutes a breach of the
implied duty of good faith and fair dealing.
Insurer contends that no such cause of action
exists under Oklahoma law against a workers’
compensation insurer. The federal court
decided sua sponte to certify the question.
James K. Secrest, ll, Roger N. Butler, Jr.,
Edward J. Main, Secrest, Hill & Butler, Tulsa,
Oklahoma, for Defendants, Continental Casualty Company and Transportation Insurance
Company.
¶3 The question certified is nearly identical
to one certified in the recent decision in Deanda v. AIU Insurance, 2004 OK 54, 98 P.3d 1080.
No petition for rehearing was filed in that
matter.
COLBERT, J.
¶4 This matter provides this Court the
opportunity to revisit an issue addressed in
Deanda and in Kuykendall v. Gulfstream
Aerospace Technologies, 2002 OK 96, 66 P.3d
374, to better define the scope of the Workers’
Compensation Act as it relates to the duty of a
workers’ compensation insurance carrier to
pay court-ordered benefits. At the same time, it
provides this Court the opportunity to give
effect to a workers’ compensation claimant’s
common law remedy for a tort that lies beyond
the scope of the Workers’ Compensation Act.
Sherrie Sizemore, Plaintiff, v. Continental
Casualty Company, d/b/a CNA Insurance
Company, an Illinois Corporation, and Kerr
Group, Inc., a Delaware Corporation, and
Transportation Insurance Company, an
Illinois Corporation, Defendants.
No. 99,940. May 30, 2006
CERTIFIED QUESTION OF LAW
¶0 United States District Court, Northern
District of Oklahoma, Honorable Terence
C. Kern, certified question of law asking
whether Oklahoma law recognizes tort of
bad faith against workers’ compensation
insurer.
CERTIFIED QUESTION ANSWERED
¶1 The United States District Court for the
Northern District of Oklahoma has certified
the following question pursuant to the Revised
Uniform Certification of Questions of Law Act,
Okla. Stat. tit. 20, §§1601-1611 (2001):
Does Oklahoma law recognize a tort for
bad faith against a workers’ compensation
insurer?
In response, this Court recognizes such a tort
for a workers’ compensation insurance carrier’s refusal to pay a workers’ compensation
award and rejects decisions to the contrary.
FACTS
¶2 Sherrie Sizemore (Claimant) worked for
Kerr Glass in Tulsa, Oklahoma. Kerr Glass was
an insured of Continental Casualty Company
and Transportation Insurance Company (colVol. 77 — No. 17 — 6/10/2006
HISTORICAL BACKGROUND
¶5 In 1992, this Court foreshadowed application of a common law tort action against a
workers’ compensation insurer for breach of
the implied duty to deal fairly and in good
faith by refusing to pay a workers’ compensation award. In Goodwin v. Old Republic Insurance Co., 1992 OK 34, 828 P.2d 431, this Court
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assumed that an insurer would be liable in tort
for its bad faith refusal to pay a workers’ compensation award. The facts in Goodwin, however, did not support an action for bad faith.
Id. ¶17, 828 P.2d at 436.
¶6 This Court’s signal that it would apply
such an action intensified in a line of cases that
continued to assume the action’s viability. In
1995, this Court went so far as to state: “We
also held [in Goodwin] that an injured worker
has a cause of action for bad faith against his
employer’s insurance carrier for refusing to
timely pay the injured worker’s compensation
award.” Whitson v. Okla. Farmers Union Mut.
Ins. Co., 1995 OK 4, ¶9, 889 P.2d 285, 287. No
bad faith action could be maintained in Whitson, however, because the claimant had sued
his employer who happened to be an insurer
but was not the employer’s workers’ compensation carrier. Id. That same year, in McGehee
v. State Insurance Fund, 1995 OK 85, 904 P.2d
70, this Court upheld the trial court’s decision
to dismiss a claimant’s bad faith claim. That
decision was based on the fact that the bad
faith claim was untimely, not on a belief that
the claim was not viable.
¶7 In 1996, this Court denied certiorari
review of a published Court of Civil Appeals
decision which affirmed a judgment entered
on a jury’s verdict awarding damages for the
workers’ compensation insurer’s bad faith failure to timely pay an award. See Cooper v. Nat’l
Union Fire Ins. Co., 1996 OK CIV APP 52, 921
P.2d 1297, cert. denied. In 1997, this Court
answered a federal certified question and held
that Oklahoma does not recognize the tort of
bad faith for the pre-award conduct of a workers’ compensation carrier. See Anderson v. U.S.
Fid. & Guar. Co., 1997 OK 124, 948 P.2d 1216.
That decision noted Goodwin’s assumption
“that an insurer could be subject to a bad faith
claim for failure to pay benefits under an
award.” Id. ¶6, 948 P.2d at 1217. That same
year, this Court compelled a workers’ compensation self-insured group to produce financial
records in an action brought by a claimant for
nonpayment of court-ordered workers’ compensation benefits. See YMCA v. Melson, 1997
OK 81, 944 P.2d 304. No hint was made that the
underlying action might be based on a claim
that was not recognized in Oklahoma law.
¶8 Two years later, this Court once again
denied certiorari review of a published opinion of the Court of Civil Appeals which
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“assumed the [own risk employer’s] liability
for bad faith” but decided the matter “on the
narrower grounds that the alleged bad-faith
conduct predated a final award.” Heintz v.
Trucks For You, Inc., 1999 OK CIV APP 64, ¶10,
984 P.2d 255, 258. In 2001, this Court reviewed
an action against the State Insurance Fund for
its alleged bad faith in failing to timely pay a
workers’ compensation award. See Fehring v.
State Ins. Fund, 2001 OK 11, 19 P.3d 276. This
Court stated again its assumption that a bad
faith claim existed but noted that “this Court
has not unequivocally sanctioned the viability
of a tort suit against a workers’ compensation
insurer for the bad faith post-award conduct of
failing to timely pay a workers’ compensation
award.” Id. ¶26, 19 P.3d at 284. This Court held
that, even assuming the viability of such a
claim, the State Insurance Fund was a state
entity and thus entitled to immunity under the
Governmental Tort Claims Act, Okla. Stat. tit.
51, §§152-167 (2001 & Supp. 2005). Fehring,
2001 OK 11, ¶¶23-29, 19 P.3d at 283-85.
¶9 The point of this historical analysis is that
for a decade this Court expressly assumed the
viability of an action based on an insurer’s
refusal to pay a workers’ compensation award.
Further, this Court refused to review at least
one Court of Civil Appeals decision in which
the tort was actually applied by a jury. See
Cooper, 1996 OK CIV APP 52, 921 P.2d 1297.
¶10 An abrupt halt in the evolution of this
Court’s emerging recognition of the tort
occurred in Kuykendall, 2002 OK 96, 66 P.3d
374. The defendant there was a self-insured
employer which refused to pay for prescribed
medication as twice ordered by the Workers’
Compensation Court. Kuykendall dismissed
the entire line of cases which had signaled
enforcement of a workers’ compensation
insurer’s duty of good faith and fair dealing as
“obiter dictum.” Further, a distinction was
drawn between a workers’ compensation
insurer and a self-insured employer. The selfinsured employer, acting as an insurer, was
given the benefit of the exclusive remedy provision of section 12 of the Workers’ Compensation Act for “the liability prescribed in Section
11.” That tort immunity is for “accidental personal injury sustained by the employee arising
out of and in the course of employment . . ..”
Okla. Stat. tit. 85, §11 (2001).
¶11 Kuykendall reasoned that, because section 42(A) of the Workers’ Compensation Act
Vol. 77 — No. 17 — 6/10/2006
provided for interest on overdue payment of
an award and because that section provided a
mechanism for enforcement of awards in district court, somehow this was the injured
worker’s sole remedy for a self-insured
employer’s bad faith failure to pay an award.
2002 OK 96, ¶13, 66 P.3d at 378. This left open
the question of whether the holding in Kuykendall was so broad as to require the same conclusion when a workers’ compensation insurer
refuses to pay an award.
¶12 That answer came in Deanda, 2004 OK
54, 98 P.3d 1080, which marked a complete
about-face in this Court’s signaled resolution
to the issue of bad faith by a workers’ compensation insurer in failing to pay an award.
Deanda merely extended the holding in
Kuykendall to hold that section 42 provided
the sole remedy for any bad faith failure to pay
court-ordered workers’ compensation benefits.
See Id. ¶1, 98 P.3d at 1080. No rehearing was
sought in Deanda but its analysis is flawed in
two respects.
¶13 First, as stated in Kuykendall, the
Deanda Court asserted that “there are no Oklahoma cases holding an employer liable for bad
faith breach in paying a Workers’ Compensation award.” Deanda, 2004 OK 54, ¶24, 98 P.3d
at 1085 (citing Kuykendall, 2002 OK 96, ¶8, 66
P.3d at 376-77). Deanda failed to note, however, the published opinion of the Court of Civil
Appeals in Cooper, 1996 OK CIV APP 52, 921
P.2d 1297. There, the Court of Civil Appeals
read Goodwin and its progeny as recognition
of an action for an insurer’s bad faith in failing
to timely pay a workers’ compensation award.
This Court denied certiorari review of that
matter and let stand a jury’s award of damages
for the injured worker on his bad faith claim.
¶14 Second, the exclusive remedy provision
of section 12 applies expressly to the liability in
section 11 for accidental personal injury arising
out of and in the course of employment.
Deanda treated the insurer’s bad faith failure
to pay an award as an injury arising from the
employment relationship. Even if that conclusion were accurate, such conduct cannot be
said to have occurred in the course of the
injured worker’s employment. “[A] bad faith
claim is separate and apart from the work relationship, and it arises against an insurer only
after there has been an award against the
employer.” Goodwin, 1992 OK 34, ¶24, 828
P.2d at 434. Thus, the conduct involved in
Vol. 77 — No. 17 — 6/10/2006
Kuykendall and Deanda is outside the scope of
the exclusive remedy provision of section 12 of
the Workers’ Compensation Act. This Court
may not expand the exclusive remedy provision of that Act beyond that which the Legislature has provided.
WORKERS’ COMPENSATION INSURER’S
DUTY TO DEAL FAIRLY AND ACT IN
GOOD FAITH IN PAYING AWARD
¶15 “An insurer has an implied duty to deal
fairly and act in good faith with its insured and
. . . the violation of this duty gives rise to an
action in tort for which consequential and, in a
proper case, punitive damages may be
sought.” Christian v. Am. Home Assurance
Co., 1977 OK 141, ¶25, 577 P.2d 899, 904. Further, “[a]n insurer’s implied-in-law duty of
good faith and fair dealing extends to all types
of insurance companies and insurance policies.
However, . . . [t]here must be either a contractual or a statutory relationship between the
insurer and the party asserting the bad faith
claim before the duty arises.” Goodwin, 1992
OK 34, ¶6, 828 P.2d at 432-33 (footnotes omitted).
¶16 Workers in Oklahoma enjoy both a contractual and a statutory status as third party
beneficiaries of a workers’ compensation
insurance agreement. “A contract, made
expressly for the benefit of a third person, may
be enforced by him at any time before the parties thereto rescind it.” Okla. Stat. tit. 15, §29
(2001). That rule applies specifically to workers
in the text of the Workers’ Compensation Act:
Every contract of insurance issued by
an insurance carrier for the purpose of
insuring an employer against liability
under the Workers’ Compensation Act
shall be conclusively presumed to be a contract for the benefit of each and every person upon whom insurance premiums are
paid, collected, or whose employment is
considered or used in determination of the
amount of premium collected upon such
policy for the payment of benefits as provided by the Workers’ Compensation Act .
. . which contract may be enforced by such
employee as the beneficiary thereof.
Okla. Stat. tit. 85, §65.3 (2001). Thus, the right
to enforce the insurance agreement, and the
attendant duty of good faith and fair dealing
implied in that contract, belongs to the injured
worker. This is true whether the insurer is an
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insurance company or a self-insured employer
who voluntarily assumes insurer status.1
¶17 The Workers’ Compensation Act now
defines “insurance carrier” to include “stock
corporations, reciprocal or interinsurance associations, or mutual associations with which
employers have insured, and employers permitted to pay compensation, directly under the
provisions of paragraph 4 of subsection A of
Section 61 of this title.” Okla. Stat. tit. 85, §3(15)
(Supp. 2005). Thus, under this recent amendment, an “individual self-insured or a group
self-insurance association” is expressly
included in the definition of “insurance
carrier.”
SCOPE OF EXCLUSIVE REMEDY
PROVISION
¶18 Employers are required by section 11 of
the Workers’ Compensation Act to pay compensation for “accidental personal injury sustained by the employee arising out of and in
the course of employment.” Section 12 makes
such liability “exclusive and in place of all
other liability of the employer . . . at common
law or otherwise, for such injury, loss of services, or death” (emphasis added). Thus, the
Legislature has limited the exclusive remedy
of workers’ compensation to an employer’s
liability for accidental injury arising out of and
in the course of employment. Nothing in section 12’s exclusive remedy provision extends
common law immunity to an insurance carrier
for its failure to act in good faith and deal fairly in payment of an award.
¶19 This action against the insurer is not controlled by the exclusive remedy provision of
the Workers’ Compensation Act. An insurance
carrier’s bad faith in failing to pay courtordered benefits is not reasonably encompassed within the “industrial bargain” by
which the worker “gave up the right to bring a
common law negligence action against the
employer and in return received automatic
guaranteed medical and wage benefits. The
employer gave up the common law defenses
and received reduced exposure to liability.”
Parret v. UNICCO Serv. Co., 2005 OK 54, ¶20,
127 P.3d 572, 578. That “bargain” was imposed
by statute upon the worker and the employer.
An insurance carrier, who wears a totally different hat, is not and has never been a party to
it.
1716
¶20 “[T]he intent of the Work[ers’] Compensation Law is to make the insurance carrier one
and the same as the employer as to liability
and immunity.” U.S. Fid. & Guar. Co. v. Theus,
1972 OK 9, ¶12, 493 P.2d 433, 435. However,
that liability and immunity extend only to accidental injury arising out of and in the course of
employment. An insurance carrier is shielded
from tort liability only to that extent. When an
insurance carrier acts in bad faith by refusing
to pay an award it is operating outside the tort
immunity afforded by the exclusive remedy
provision of section 12.
¶21 An insurer’s refusal to pay a workers’
compensation award fails to meet three of the
section 11 elements of a valid workers’ compensation claim. It is not (1) an accidental
injury (2) arising out of and (3) in the course of
employment. Although “accidental injury” is
not defined in the Act, “compensable injury” is
defined as “any injury or occupational illness,
causing internal or external harm to the body,
which arises out of and in the course of
employment if such employment was the
major cause of the specific injury or illness.”
Okla. Stat. tit. 85, §3(13) (Supp. 2005). Refusal
to pay an award does not “arise out of” the
worker’s employment because there is no
causal nexus between the conditions under
which the work was performed and the resulting injury. See Moore v. City of Norman, 1999
OK 39, ¶6, 983 P.2d 436, 437. The refusal to pay
does not occur “in the course of employment”
because the time, place, and circumstances of
the refusal are in no way connected to the
worker’s employment. See Odyssey/Americare v. Worden, 1997 OK 136, ¶5, 948 P.2d 309,
311.
¶22 The Workers’ Compensation Act provides a comprehensive scheme for providing
medical care and wage benefits to injured
workers. However, not every injury connected
to work falls within the exclusive remedy provision of the Act. Some injuries are expressly
excluded from the provisions of the Act. These
include: (1) third party claims under section 44
of the Act; (2) a common law action under the
penalty provision of section 12 against an
employer who fails to secure compensation in
the manner provided by section 61 of the Act;
(3) certain exceptions to the Act, found in section 11, based on an employee’s willful injury
to self or another, failure to use a guard or protection furnished against accident, substance
abuse, or horseplay; and (4) non-accidental
Vol. 77 — No. 17 — 6/10/2006
injury which the employer knew was certain
or substantially certain to result from the
employer’s conduct, See Parret, 2005 OK 54,
127 P.3d 572. Thus, it is evident from the text of
the Act that “the common law” has not been
entirely displaced or supplanted by the exclusive remedy provision. In fact, “[t]he common
law, as modified by constitutional and statutory law, judicial decisions and the condition and
wants of the people, shall remain in force in aid
of the general statutes of Oklahoma . . ..” Okla
Stat. tit. 12, §2 (2001). Section 12 does not bar a
common law tort action against a workers’
compensation carrier who will not pay an
injured worker’s award of compensation.
SECTION 42 PENALTY PROVISIONS
¶23 This Court has struggled with the question of whether section 422 provides the sole
remedy for an insurer’s refusal to pay a workers’ compensation award. Kuykendall and
Deanda reached the conclusion that section 42
provided the sole remedy. Kuykendall did so
on the belief that there was a valid distinction
between an insurer and an employer who voluntarily assumed insurer status. Thus the
employer was given the benefit of tort immunity for covered work related injury and tort
immunity while acting as an insurer. Deanda
merely extended the holding in Kuykendall to
give an insurer that same immunity by concluding that “the Legislature intended for an
insurance carrier’s post-judgment failure to
pay fall within the exclusivity of the Workers’
Compensation Act.” Deanda, 2004 OK 54, ¶20,
98 P.3d at 1085. In retrospect, that conclusion
was much too broad.
¶24 “This Court will look to the text of the
Workers’ Compensation Act, its underlying
policies, and to the purposes of workers’ compensation generally in applying the provisions
of the Act.” Parret, 2005 OK 54, ¶18, 127 P.3d at
577. Nothing in the text of section 42, in the
policies underlying that section, or in the policies underlying the Act generally, provides any
support for the theory that section 42 was
intended to provide the “exclusive remedy”
for an insurance carrier’s refusal to pay a
workers’ compensation award. The only way
that theory can be maintained is by reading the
exclusive remedy provision in section 12 far
beyond its stated scope of accidental injury
arising out of and in the course of employment. Looking at the text and the statutory
Vol. 77 — No. 17 — 6/10/2006
scheme as a whole, however, a contrary
legislative intent is understood.
¶25 Section 42(A) addresses late payment of
workers’ compensation benefits. When payment under the terms of a workers’ compensation award are not made within 10 days, the
Workers’ Compensation Court may order a
certified copy of the award to be filed in a district court clerk’s office to be enforced as a
judgment of the district court. The award bears
interest at the rate of 18 per cent until paid.
Thus, the Legislature has provided an incentive for prompt payment of workers’ compensation awards3 and a mechanism for enforcement of an unpaid award in district court. An
insurer’s bad faith in outright refusing to pay
an award is beyond the purview of that incentive. The remedy for such conduct is not found
in the Workers’ Compensation Act but rather
in a common law action based on the insurer’s
bad faith refusal to pay an award. Thus, bad
faith conduct by a workers’ compensation
insurer in refusing to pay an award of benefits
to an injured worker is judged by the same
standard as bad faith conduct by any other
insurer. See Badillo v. Mid Century Ins. Co.,
2005 OK 48, ¶28, 121 P.3d 1080, 1094 (“the minimum level of culpability necessary for liability against an insurer to attach is more than
simple negligence, but less than the reckless
conduct necessary to sanction a punitive damage award against said insurer”).
¶26 A claimant seeking to enforce an award
must first utilize the mechanism provided in
section 42(A) of the Act and have the award
certified for enforcement. But if the insurance
carrier still refuses to pay the award, as is
alleged in this matter, an action for the insurer’s bad faith refusal to do so will lie in district
court.
¶27 This holding gives the Legislature’s
intended effect to section 42. It recognizes that
the provision was never intended to be exclusive, nor is it adequate to deter an insurance
carrier’s refusal to pay or to adequately compensate the injured worker for attorney fees
and other items of harm flowing from the carrier’s refusal to pay. Although section 42
expresses the Legislature’s intent that awards
be paid promptly, nothing in the Act has supplanted a worker’s common law remedy for an
insurance carrier’s bad faith in refusing to pay
a workers’ compensation award.
1717
CONCLUSION
¶28 Today, this Court recognizes that a common law tort action exists for an insurance carrier’s bad faith in refusing to pay a workers’
compensation award. In doing so, this Court
reaches the result foreshadowed by a line of decisions dating back to 1992. Any language in
Kuykendall or Deanda that is contrary to this
opinion is rejected.
¶29 This Court approves and adopts the rule
that where a workers’ compensation claimant
has followed the mechanism for enforcement of
an award pursuant to section 42(A) of the Workers’ Compensation Act and the insurer fails to act
in good faith and deal fairly by paying the
award, that failure gives rise to a common law
action for bad faith in tort. Such action may be
brought against a workers’ compensation insurer, a self-insured employer, or any entity meeting
the Act’s definition of “insurance carrier” found
at section 3(15).
CERTIFIED QUESTION ANSWERED
CONCUR: Watt, C.J., Kauger, Edmondson, Taylor, Colbert, JJ.
DISSENT: Winchester,
Hargrave, Opala, JJ.
V.C.J.,
Lavender,
1. Section 61(A) of the Act provides four ways of securing compensation to employees: (1) through “a policy to provide workers’ compensation benefits”; (2) by “obtaining and keeping in force guaranty insurance”; (3) by “obtaining and keeping in force a workers’ compensation
equivalent insurance product”; and (4) through “an individual selfinsured or a group self-insurance association.”
2. Other than in the case of an award from the Multiple Injury Trust
Fund, section 42(A) provides:
If payment of compensation or an installment payment of compensation due under the terms of an award . . . is not made within
ten (10) days after the same is due by the employer or insurance
carrier liable therefor, the Court may order a certified copy of the
award to be filed in the office of the court clerk of any county, which
award whether accumulative or lump sum shall have the same
force and be subject to the same law as judgments of the district
court . . .. Upon the filing of the certified copy of the Court’s award
a writ of execution shall issue and process shall be executed and the
cost thereof taxed, as in the case of writs of execution, on judgments
of courts of record, as provided by Title 12 of the Oklahoma
Statutes; provided, however, the provisions of this section relating
to execution and process for the enforcement of awards shall be and
are cumulative to other provisions now existing or which may
hereafter be adopted relating to liens or enforcement of awards or
claims for compensation.
3. An additional penalty is provided by section 42(B):
If any insurance carrier intentionally, knowingly, or willfully
violates any of the provisions of the Workers’ Compensation Act or
any published rules or regulations promulgated thereunder, the
Insurance Commissioner, on the request of a judge of the Court or
the Administrator, shall suspend or revoke the license or authority
of such insurance carrier to do a compensation business in this
state.
the workers’ compensation insurer to timely pay
an award as finally ordered by the Workers’
Compensation Court that gives rise to a common
law action for bad faith in tort. “If insurance
companies wish to prevent bad faith cases, then
they must govern themselves in accordance with
the law and the terms of the insurance products
they market and sell. When that day comes, then
bad faith cases will become a relic of the past.”
Badillo v. Mid Century Insur. Co., 2005 OK 48 (Taylor, J., concurring specially, ¶9), 121 P.3d 1080,
1111. In this case the insurer refuses to pay compensation benefits awarded in a final order of
the Workers Compensation Court. That refusal
invites, encourages and gives viability to a bad
faith claim by the injured and unpaid worker.
WINCHESTER, V.C.J., with whom LAVENDER, HARGRAVE AND OPALA, JJ. join,
dissenting:
¶1 The principal issue in Kuykendall v. Gulfstream Aerospace Technologies, 2002 OK 96, 66 P.3d
374, Deanda v. AIU Insurance, 2004 OK 54, 98 P.3d
1080, and the case now before this Court is
whether the compensation statute, 85 O.S.2001,
§42, provides the exclusive remedies for wrongful delay in payment or refusal to pay. I would
hold that the statute excludes common-law
remedies.
¶2 The Oklahoma Legislature enacted the
Workers’ Compensation Act in 1915,1 ensuring
that employees would be provided benefits for
work-related injuries. The purpose of the act is to
fully define the rights of the parties and to wholly compensate an injured worker. The Legislature arbitrarily fixed certain factors in the calculation of awards to achieve exact and uniform
results. Mudge Oil Co. v. Wagnon, 1943 OK 354,
¶8, 145 P.2d 185, 186. Injecting the tort of bad
faith into this statutory framework threatens the
balance the Legislature has attempted to achieve.
TAYLOR, J., concurring:
¶3 The certified question is: “Does Oklahoma
law recognize a tort for bad faith against a workers’ compensation insurer?” The majority asserts
that intentional refusal to pay an award, as discussed in Kuykendall and Deanda, is outside the
scope of the exclusive remedy provision of §12 of
the Workers’ Compensation Act.2 The majority’s
conclusion equates a bad faith failure of an insurer to pay a worker’s compensation award, with a
bad faith failure of an insurance company to pay
pursuant to a contract.3
¶1 I fully concur in today’s opinion. I write
separately to emphasize that it is the refusal of
¶4 A bad faith refusal to pay a judgment is not
the equivalent of a bad faith breach of contract.
1718
Vol. 77 — No. 17 — 6/10/2006
In the worker’s compensation case, the court has
made a final, enforceable award. In contrast,
when an insurance company, in bad faith, determines not to pay pursuant to contract, a tort is
committed and the legal process begins. If a
casualty insurance company refuses to pay a
judgment against it, what would be the remedy?
Would it be to bring a new, a second court case
for bad faith merely because the judgment was
against an insurance company? I think not. The
remedy is collection of the judgment through the
existing statutory process,4 not creating a new
tort to allow for punitive damages.
¶5 Section 42(A) provides remedies for failure
to pay within ten days of a court-ordered award.
An unpaid award is to bear interest at the rate of
eighteen percent.5 Intentional, knowing or willful violation of the provisions of the Workers’
Compensation Act by an insurer may result in
suspension or revocation of the authority of the
insurance carrier to provide compensation business in Oklahoma.6 The higher interest rate provided by that statute expressly applies to either
the employer or the insurance carrier, whichever
is liable for the payment.7
¶6 Although I agree that the act contemplates
payment for “accidental personal injury”, 85
O.S.2001, §11(A), remedies for failure to pay a
judgment of the Workers’ Compensation Court
are specifically provided by §42. The majority,
although acknowledging this, justifies providing
a common-law remedy by asserting that the §42
remedies are inadequate “to deter an insurance
carrier’s refusal to pay or to adequately compensate the injured worker for attorney fees and
other items of harm flowing from the carrier’s
refusal to pay.”8 That is a legislative, policy decision. To create a common-law remedy to supplement the statutory remedies of §42 is as much an
invasion of the constitutionally-mandated balance of power9 as it would be to attempt to alter
the schedule of compensation found at 85
O.S.Supp.2005, §22 through adding additional
compensation by court order.
¶7 When the Supreme Court of Wisconsin recognized the tort of bad faith in a worker’s compensation case,10 its legislature reacted by enacting a statute providing for an exclusive remedy
and specified that an employee may not maintain a bad-faith, common-law tort action against
the employer or insurance carrier.11 Like Wisconsin, the final resolution of this issue in Oklahoma
must come from Oklahoma’s Legislature.
1. Laws 1915, ch. 246, art. 1, §1.
Vol. 77 — No. 17 — 6/10/2006
2. Majority Opinion, ¶14.
3. Majority opinion, ¶25.
4. 12 O.S.2001, ch. 13, Executions
5. 85 O.S.2001, §42(A)
6. 42 O.S.2001, §42(B).
7. The first sentence of 85 O.S,2001, §42(A) provides in pertinent part:
“If payment of compensation or an installment payment of compensation
due under the terms of an award . . . is not made within ten (10) days after
the same is due by the employer or insurance carrier liable therefore, the
Court may order a certified copy of the award to be filed in the office of
the court clerk of any county, which award whether accumulative or
lump sum shall have the same force and be subject to the same law as
judgments of the district court. . . .”
8. Majority opinion, ¶27.
9. Okla.Const., art. 5, §1.
10. Coleman v. American Universal Ins. Co., 86 Wis.2d 615, 273 N.W.2d
220 (1979)
11. Messner v. Briggs & Stratton Corp., 120 Wis.2d 127, 133, 353 N.W.2d
363, 366 (Ct. App. 1984).
OPALA, J., with whom WINCHESTER, V.C.J.,
and LAVENDER and HARGRAVE, J.J., join,
dissenting.
¶1 I dissent from the court’s opinion and from
the statement in concurrence and join the other
dissent. I write separately to offer an addendum
to the analytical framework for the issue at hand.
¶2 The Workers’ Compensation Act provides
the exclusive remedy for a workers’ compensation insurer’s failure to pay an obligation of its
policy. “It may be neither supplemented nor
diluted by the norms of common law injected
into its corpus by . . . a judicial syringe.”1 “No
Oklahoma case holds that a workers’ compensation insurer has a duty of good faith in paying a workers’ compensation award, the violation of which is a tort.”2 Assuming arguendo that
extant jurisprudence recognizes a common-law
tort action of bad faith for a workers’ compensation insurer’s failure to pay an obligation of its
policy, such action stands barred by 85 O.S. 2001
§42.
¶3 The court’s opinion and the statement in
concurrence erroneously conclude that §42 does
not provide the exclusive remedy available to
Sizemore by incorrectly construing the provisions of 85 O.S. 2001 §12. The latter govern only
the employer’s duties and not those of a workers’ compensation insurer.
¶4 The legislature has been clear and explicit
in providing that the terms of “Workers’ Compensation Act [and its related sections] are in
derogation of the common law and those
statutes are the exclusive . . . [legal norms] governing benefits [and by extension the right of
action].”3
¶5 Assuming that §42 is not sufficiently clear,
statutes in derogation of the common law, such
1719
as §42, “are to be liberally construed so as to
effect legislative intent.”4
¶6 This court, as well as the U.S. Court of
Appeals for the Tenth Circuit, clearly announce
that Oklahoma’s extant jurisprudence does not
recognize an insurer’s duty of good faith in paying a workers’ compensation award.5 The dearth
of erroneous instances that would suggest otherwise should not be relied upon. Good law is
crafted neither from aberrational court rulings
nor in reliance upon flawed construction of
statutory authority and upon judicial departure
from the explicit will of the legislature.
¶7 The court’s pronouncement not only upsets
the balance to be struck between common-law
remedies and the necessity of uniformity in public law, but also between the equilibrium of public and private interests which forms the foundation of public law.6
¶8 I hence dissent from the court’s judgment,
from today’s pronouncement, and from the
statement in concurrence.
1. Bradshaw v. Oklahoma State Election Bd., 1093, 2004 OK 69, ¶3, 98
P.3d 1092 (Opala, V.C.J., concurring) (emphasis added).
2. Kuykendall v. Gulfstream Aerospace Techs., 2002 OK 96, ¶8, 66 P.3d
374, 376-77 (emphasis added).
3. Patterson v. Sue Estell Trucking Co. Inc., 2004 OK 66, ¶6, 95 P.3d 1087,
1088 (emphasis added).
4. Finnell v. Seismic, 2003 OK 35, ¶15, 67 P.3d 339, 345 (emphasis
added).
5. See Kuykendall v. Gulfstream Aerospace Techs., supra note 2; Southerland v. Granite State Ins. Co., 68 Fed.Appx. 156, 158-159, (10th Cir.2003)
(unreported).
6. See generally Richard B. Cappalli, The American Common Law
Method (1997).
2006 OK 37
In the Matter of the Reinstatement of Thomas
Bentley Baines to Membership in the
Oklahoma Bar Association and to the Roll of
Attorneys.
SCBD No. 5117. May 30, 2006
the Oklahoma Bar Association, as set forth in
Rule 11, Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, ch. 1, App. 1-A
(2001).
2) Petitioner has established by clear and
convincing evidence that he has not engaged
in the practice in the State of Oklahoma since
his voluntary resignation.
convincing evidence that he possesses the
competence and learning in the law required
for reinstatement to the Oklahoma Bar Association including but not limited to completion of Mandatory Continuing Legal Education for the years 2004 and 2005.
convincing evidence that he possesses the
good moral character which would entitle
him to be reinstated to the Oklahoma Bar
Association.
¶2 IT IS THEREFORE ORDERED that the petition of Thomas Bentley Baines for reinstatement
to membership in the Oklahoma Bar Association
be granted. Petitioner is directed to pay costs of
the proceeding in the amount of $406.03 within
thirty days of the date of this order.
¶3 IT IS FURTHER ORDERED that Petitioner
pay his 2006 Bar Association dues within thirty
days of the date of this order. Reinstatement is
conditioned upon Petitioner’s payment of both
the costs of this action and his 2006 dues.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE this 30th day of May,
2006.
/s/
Joseph M. Watt
CHIEF JUSTICE
ALL JUSTICES CONCUR
ORDER OF REINSTATEMENT
2006 OK 38
¶1 Petitioner, Thomas Bentley Baines, was
stricken from the roll of attorneys after voluntarily resigning from the Oklahoma Bar Association
on January 1, 1996. On October 20, 2005, Baines
petitioned this Court for reinstatement to membership in the Oklahoma Bar Association. A
hearing was held before a panel of the Professional Responsibility Tribunal on January 18,
2006, and the panel recommended that Petitioner be reinstated. Upon consideration of the matter, THIS COURT FINDS:
State of Oklahoma, ex rel. OKLAHOMA BAR
ASSOCIATION, Complainant, v. TERRY
PAUL MALLOY, Respondent.
1) Petitioner has met all the procedural
requirements necessary for reinstatement in
1720
SCBD No. 4998. May 30, 2006
RULE 6 BAR DISCIPLINE PROCEEDING
¶0 The Oklahoma Bar Association (the Bar)
filed a Complaint alleging Respondent, Terry
Paul Malloy, engaged in the unauthorized practice of law while on administrative suspension.
The Trial Panel of the Professional Responsibility
Tribunal (PRT) found Respondent violated Rule
Vol. 77 — No. 17 — 6/10/2006
5.5 of the Oklahoma Rules of Professional Conduct (ORPC), 5 O.S.2001, Ch. 1, App. 3-A, as well
as Rule 1.3 of the Rules Governing Disciplinary
Proceedings (RGDP), 5 O.S.2001, Ch. 1, App. 1A. The PRT recommended a nine-month suspension of Respondent’s license, in addition to the
costs of this proceeding.
RESPONDENT’S LICENSE TO PRACTICE
LAW SUSPENDED FOR NINE MONTHS;
THE BAR'S APPLICATION FOR COSTS
GRANTED.
Mike Speegle, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant, State of Oklahoma ex
rel. Oklahoma Bar Association.
Terry Paul Malloy, Tulsa, Oklahoma, pro se
Respondent.
WINCHESTER, J.
¶1 The Bar filed a complaint against Respondent, pursuant to Rule 6, RGDP, 5 O.S. 2001, Ch.
1, App. 1-A, alleging Respondent engaged in the
unauthorized practice of law while on administrative suspension for failure to timely report his
annual continuing legal education (CLE). In its
Trial Panel Report, the PRT found that Respondent’s current misconduct warranted enhancement of punishment and recommended a ninemonth suspension of respondent’s license. The
PRT also recommended that Respondent pay for
costs of the proceedings. Respondent asserts his
due process rights were violated and seeks
dismissal of these proceedings.
BACKGROUND
¶2 Each active member of the Bar is required to
complete twelve hours of accredited CLE per calendar year. 5 O.S.2001, Ch. 1, App. 1-B, Rule 3,
Rules for Mandatory Continuing Legal Education. An annual report of the attorney’s CLE
compliance must be filed by February 15 of the
following year. 5 O.S.2001, Ch. 1, App. 1-B, Rule
5, Rules for Mandatory Continuing Legal Education. Failure to file the requisite compliance
results in the issuance of a sixty-day order to
show cause from the Bar, sent by certified mail. 5
O.S.2001, Ch. 1, App. 1-B, Rule 6(c), Rules for
Mandatory Continuing Legal Education. Failure
to respond to this order, or otherwise show good
cause, results in an order of suspension issued by
this Court whereby the attorney is prohibited
from practicing law in Oklahoma until he is
properly reinstated. 5 O.S.2001, Ch. 1, App. 1-B,
Rule 6(d), Rules for Mandatory Continuing
Legal Education.
Vol. 77 — No. 17 — 6/10/2006
¶3 Respondent completed the mandatory CLE
requirements for 2002 but failed to file his report
of compliance with the Bar by February 15, 20031.
Thereafter, on April 18, 2003, the Bar sent
Respondent, by certified mail, an order to show
cause. The return receipt for this mailing reflects
that it was signed for by “Kathleen” on April 21;
however, the “restricted delivery” box, for which
there is an extra fee, was not checked and
Respondent denies receipt of this letter. Respondent also claims that while “Kathleen” worked
in his father’s law office, she was not his employee nor was she authorized to sign for his certified
mail.2
¶4 When Respondent failed to respond to the
show cause order within sixty days, his name
was referred to this Court on a recommendation
for suspension. On July 3, 2003, we issued an
Order of Suspension (the “Order”), Case No.
SCBD #4820, suspending Respondent, and the
rest of the named attorneys, from the practice of
law. Respondent admits he received a copy of
this order sometime in mid-July, 2003.
¶5 Despite receipt of the Order in July 2003, it
is undisputed Respondent continued to practice
law for several months. On February 23, 2004,
Margaret E. Travis, opposing counsel in one of
Respondent’s cases, wrote the Bar, with a copy to
Respondent, making a complaint that Respondent was practicing law in violation of his suspension. Shortly thereafter, on March 2, 2004,
Respondent sent a letter to the Bar, seeking reinstatement and providing his affidavit of compliance report for his 2002 CLE credit, including a
check for reinstatement and late fees. Respondent was reinstated March 15, 2004. Subsequently, the Bar instituted these proceedings against
Respondent seeking his suspension for the unauthorized practice of law while under suspension.
From the time he received notice of his suspension until the Bar instituted these proceedings,
Respondent never attempted to challenge, set
aside or otherwise vacate the Order which
appears valid on its face.3 He now asserts the
Order is void and should be set aside.
STANDARD OF REVIEW
¶6 In bar disciplinary proceedings, this Court
possesses exclusive original jurisdiction. State ex
rel. Oklahoma Bar Ass’n v. Holden, 1995 OK 25,
¶ 10, 895 P.2d 707, 711. Our review of the evidence is de novo in determining if the Bar proved
its allegations of misconduct by clear and convincing evidence. RGDP Rule 6.12(c); State ex rel.
Oklahoma Bar Ass’n v. Bolusky, 2001 OK 26, ¶ 7, 23
P.3d 268, 272. Whether to impose discipline is a
decision that rests solely with this Court and the
1721
recommendations of the PRT are neither binding
nor persuasive. State ex rel. Oklahoma Bar Ass’n v.
Eakin, 1995 OK 106, ¶ 8, 914 P.2d 644, 648.
DISCUSSION
¶7 Respondent has moved for dismissal of the
charges against him on the ground that this
Court lacked personal jurisdiction to issue the
July 2003 order of suspension. This is so, he
argues, because the Bar failed to provide him the
requisite notice of its order to show cause, which
led to his suspension. Respondent asserts that
because he never received the notice to show
cause, his due process rights were violated. We
agree, but this case does not turn on due process.
¶8 Were this an ordinary civil case, we would
likely entertain Respondent’s argument that
because of the due process violation the suspension order should be declared void and set
aside.4 See Graff v. Kelly, 1991 OK 71, ¶21, 814 P.2d
489, 495-496. However, this is not an ordinary
civil case but is instead an attorney disciplinary
proceeding involving the alleged unauthorized
practice of law by Respondent, an attorney
licensed by this Court to practice law in the State
of Oklahoma. As an officer of the court, Respondent is held to higher ethical standards than
those of a layperson and he has the affirmative
duty to obey any order of this Court “except for
an open refusal based on an assertion that no
valid obligation exists.” See 5 O.S.1991, Ch. 1,
App. 3-A, Oklahoma Rules of Professional Conduct, Rule 3.4(c); State ex rel. Okla. Bar Ass’n v.
Hine, 1997 OK 52, ¶10, 937 P.2d 996. In Hine, this
Court held that as an officer of the court, an
attorney owes “a special duty to the judicial system — an obligation of respect greater than that
owed by other participants in the legal process.”
Respondent is not allowed to hide behind an
order he believes is invalid without bringing his
refusal to obey the order to this Court’s attention.
¶9 Here, Respondent took no action to have
his suspension vacated despite admitting receipt
of the Order sometime after its issuance on July
3, 2003. Respondent could have easily rectified
the present situation by immediately bringing
the lack of adequate notice to this Court’s attention. Instead, Respondent continued to practice
law for approximately nine months in knowing
disregard of our facially valid Order. Moreover,
Respondent knew he remained seriously delinquent with his annual CLE filing for 2002.
Respondent only took action to be reinstated
after opposing counsel on one of his cases filed
an unauthorized practice of law complaint
against him with the Bar.
1722
¶10 A lawyer’s willful disregard of a suspension order “is a serious matter” that undermines
the authority of the judicial system and erodes
the public trust in our profession. State ex rel.
Okla. Bar Ass’n v. Patterson, 2001 OK 51, ¶ 31, 28
P.3d 551, 560. Respect for judicial rulings is
essential to the proper administration of justice
and this Court will not tolerate disobedience of
its orders. State ex rel. Oklahoma Bar Ass’n v. Holden, 1996 OK 88, ¶ 7, 925 P.2d 32, 36. Respondent
should have taken timely and appropriate steps
within the framework of the law to contest the
validity of the Order. Instead, Respondent let
many months pass while he continued to practice law in knowing violation of this Court’s
Order. Respondent’s actions demonstrate total
indifference to his obligations as a member of the
Bar, are disrespectful of the Court, and cannot go
undisciplined.
ENHANCEMENT
¶11 We find that the enhancement considerations set forth by the PRT in its report have merit.
Respondent has been disciplined four prior
times, consisting of three private reprimands
and one public censure. In one instance, Respondent was reprimanded for conduct prejudicial to
the administration of justice and, in another, he
was reprimanded for failing to cooperate with a
Bar investigation. Respondent’s history of professional misconduct is an appropriate factor in
considering his discipline in this case.
DISCIPLINE
¶12 Upon review of the record before us, we
find that Respondent engaged in conduct that
violates Rules 3.4 and 5.5, ORCP, and Rule 1.3,
RGDP.5 In determining an appropriate measure
of discipline, we look to other cases where discipline has been imposed on lawyers for similar
acts of professional misconduct. State ex rel. Bar
Ass’n v. Eakin, 1995 OK 106, ¶ 9, 914 P.2d 644, 648.
We have “generally imposed severe discipline
for the unauthorized practice of law by a lawyer
whom we have suspended.” State ex rel. Okla. Bar
Ass’n v. Patterson, 2001 OK 51, ¶ 30, n.16, 28 P.3d
551, 567, n.16 (Dissenting in part, Opala, J)(citing
several cases where attorneys were disbarred or
given lengthy suspensions in cases where the
attorneys engaged in the unauthorized practice
of law as well as other acts of misconduct).6
¶13 Respondent’s pattern of conduct in his
defiance toward our order of suspension, his
repeated disregard for the rules of his profession,
and his refusal to take responsibility for his
actions demonstrates that his prior discipline has
been insufficient to deter his unprofessional
behavior. We accept the PRT’s unanimous rec-
Vol. 77 — No. 17 — 6/10/2006
ommendation that Respondent’s license to practice law be suspended for nine months, the
approximate length of time Respondent continued his law practice in blatant disregard of our
order of suspension.
OKLAHOMA INDIGENT
DEFENSE SYSTEM
CONCLUSION
INVESTIGATOR
¶14 Respondent’s license to practice law is suspended for nine months from the date of this
opinion. The Bar’s application to assess the costs
of this proceeding in the amount of $1,019.66 is
granted. Respondent is ordered to pay the
assessed amount within sixty days.
The Oklahoma Indigent Defense System
(OIDS) has an opening for an Investigator in its
Capital Post-Conviction Division in its Norman
Office.
CONCUR: WATT, C.J., WINCHESTER, V.C.J.,
LAVENDER, HARGRAVE, OPALA, EDMONDSON, TAYLOR, COLBERT, JJ.
CONCURS IN PART; DISSENTS IN PART:
KAUGER, J.
1. Respondent had a pattern of filing his annual CLE compliance
reports out of time. The record reflects that the Bar mailed sixty day
show cause orders to Respondent for the years 1997-2004 and that
Respondent, prior to the end of the sixty days, submitted his report of
compliance and paid the appropriate late fees for all of these years
except 2002, the year for which he challenges adequate notice.
2. Although we have doubts as to the credibility of this statement,
the Bar did not submit any evidence to refute Respondent’s testimony
on this issue.
3. Respondent believed no action was necessary to set aside the
order since he deemed the order a nullity.
4. The record before this Court does not include the record of the
proceedings leading to the issuance of Respondent’s Order of Suspension. See Case No. SCBD-4820. As such, we do not decide whether a
review of the “judgment roll” in that case would lead to the conclusion
that the Order was “void” or merely “voidable,” in which case
Respondent would have had to have taken affirmative action to set
aside the Order. See Vance v. Federal Nat’l Mortgage Ass’n, 1999 OK 73,
¶ 8, 988 P.2d 1275, 1279. The Order appears valid on its face.
5. The evidence supports a finding that Respondent violated Rule
3.4(c), ORPC, although not charged in the complaint. The fact that the
Bar did not specifically charge a violation of this rule is irrelevant. State
ex rel. Oklahoma Bar Association v. Bedford, 1997 OK 83, 956 P.2d 148.
Where the Bar pleads sufficient facts to put an attorney on notice of the
violations charged against him and allows him an opportunity to
respond, this is sufficient. Id., citing State ex rel. Oklahoma Bar Association v. Johnston, 1993 OK 91, 863 P.2d 1136. Here, the crux of the Bar’s
complaint against Respondent centered on his disregard of the order
of suspension. The Bar’s complaint sufficiently put Respondent on
notice that it was seeking discipline against him for violating this
order and engaging in the unauthorized practice of law.
6. See, e.g., State ex rel. Okl. Bar Ass’n v. Downing, 1993 OK 44, 863
P.2d 1111 (disbarment for attorney who engaged in the unauthorized
practice of law during a period of suspension, lied to a client about the
status of a case and about his ability to continue with the representation, and failed to act with reasonable diligence and competence); State
ex rel. Okl. Bar Assn v. Wolfe, 1997 OK 47, 937 P.2d 988 (disbarment for
attorney who, in addition to engaging in the unauthorized practice of
law while under suspension, had a history of disciplinary problems,
neglected client matters, refused to take responsibility for his actions,
and disregarded the disciplinary process); State ex rel. Okl. Bar Assn v.
Holden, 1996 OK 88, 925 P.2d 32 (suspension of two years and one day
for attorney who disregarded this Court’s suspension order almost
from the date it was issued and misrepresented his actions in his
response to the grievance inquiries of the Bar). But see State ex rel. Okla.
Bar Ass’n v. O’Neal, 1993 OK 61, 852 P.2d 713 (attorney publicly censured for unauthorized practice of law while under suspension for
non-payment of bar dues and non-compliance with CLE requirements).
Vol. 77 — No. 17 — 6/10/2006
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1723
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Gretchen Mosely, Sapulpa
10:35 am
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Communicating with Jurors, Judges and
Prosecutors (continued)
Adjourn
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1724
Vol. 77 — No. 17 — 6/10/2006
Court of Criminal Appeals Opinions
2006 OK CR 20
ALFRED BRIAN MITCHELL, Appellant, v.
STATE OF OKLAHOMA, Appellee.
Case No. D-2002-1427. May 30, 2006
OPINION
CHAPEL, PRESIDING JUDGE:
¶1 In 1992, Alfred Brian Mitchell, Appellant,
was tried by a jury and convicted of FirstDegree Malice Aforethought Murder, in violation of 21 O.S.1991, §701.7, Robbery with a
Dangerous Weapon, in violation of 21
O.S.1991, §801, Larceny of an Automobile, in
violation of 21 O.S.1991, §1720, First-Degree
Rape, in violation of 21 O.S.1991, §§1111, 1114,
and Forcible Anal Sodomy, in violation of 21
O.S.1991, §888, in the District Court of Oklahoma County, Case No. CF-91-206. In the sentencing phase, the jury recommended a death
sentence for the murder after finding: 1) the
murder was “especially heinous, atrocious, or
cruel”; 2) the murder was “committed for the
purpose of avoiding or preventing a lawful
arrest or prosecution”; and 3) there was a
“probability that [Mitchell] would commit
criminal acts of violence that would constitute
a continuing threat to society.”1 In accordance
with the recommendations of the jury, the trial
court sentenced Mitchell to death for the murder and to imprisonment for a total of 170
years for the other felonies.2
¶2 Mitchell appealed to this Court, and we
affirmed his convictions and his sentences.3
This Court denied Mitchell’s petition for
rehearing, and the United States Supreme
Court denied his petition for certiorari.4
Mitchell then sought post-conviction relief in
this Court, which was denied.5 And the
Supreme Court again denied Mitchell’s
petition for certiorari.6
¶3 Mitchell then pursued federal habeas corpus relief in the United States District Court for
the Western District of Oklahoma.7 The federal
district court, the Honorable Ralph G. Thompson, found that the State violated Brady v.
Maryland,8 by failing to turn over exculpatory
DNA evidence relating to samples taken from
the victim and the crime scene.9 The court
Vol. 77 — No. 17 — 6/10/2006
granted habeas relief on Mitchell’s convictions
for rape and sodomy, since they were based
upon this evidence and the presentation of
highly misleading/untruthful testimony from
Joyce Gilchrist, a forensic chemist employed
by the Oklahoma City Police Department at
the time.10 The federal district court also
strongly criticized the prosecutors in Mitchell’s
original trial regarding their treatment of this
evidence.11 The court vacated Mitchell’s rape
and sodomy convictions, but left his other
convictions and sentences intact.12
¶4 Mitchell appealed to the United States
Court of Appeals for the Tenth Circuit. The
Tenth Circuit upheld Mitchell’s first-degree
murder conviction, but vacated his death sentence and ordered a new capital sentencing
proceeding.13 The Tenth Circuit concluded that
if Mitchell’s jury had not been presented the
false and misleading evidence relating to the
rape and sodomy charges — along with the
improper prosecutorial argument — there was
a reasonable probability that Mitchell would
not have been sentenced to death.14
¶5 Pursuant to 21 O.S.2001, §701.10a, a new
jury was impaneled for the resentencing trial,
which was held before the Honorable Susan P.
Caswell on October 21-31, 2002. This time the
jury found two aggravating circumstances: 1)
the murder was “especially heinous, atrocious,
or cruel”; and 2) the murder was “committed
for the purpose of avoiding or preventing a
lawful arrest or prosecution.”15 The jury again
recommended the death penalty, and the trial
court so ordered. From this judgment and
sentence, Mitchell appeals.16
¶6 The facts of this case were summarized in
this Court’s opinion on direct appeal, which is
incorporated herein by reference.17 Briefly stated, on January 7, 1991, Alfred Brian Mitchell
found Elaine Scott alone at the Pilot Recreation
Center in Oklahoma City.18 The evidence presented at the resentencing established that
Mitchell first attacked Scott near the Center’s
library, where a spot of blood, one of Scott’s
earrings, and a sign that she had been hanging
were later found on the floor. Scott apparently
ran for the innermost room of the Center’s staff
offices — as she had told her mother she
1725
would if she ever found herself in a dangerous
situation at the Center — where there was a
phone and a door that she could lock behind
her. She almost made it.19 Although the exact
sequence of events is unclear, the State established that Scott’s clothing was taken off and
that a violent struggle ensued, in which
Mitchell beat and battered Scott, using his fists,
a compass, a golf club (which ended up in
pieces), and a wooden coat rack. The forensic
evidence — including the condition of Scott’s
nude, bruised, and bloodied body — established that she was moving throughout the
attack, until the final crushing blows with the
coat rack, which pierced her skull and ended
her life.20
ANALYSIS
¶7 Mitchell’s first three propositions of error
all relate to the aggravating circumstance that
his murder of Elaine Scott was “committed for
the purpose of avoiding or preventing a lawful
arrest or prosecution,” i.e., the “avoid arrest
aggravator.”21 This Court has repeatedly held
that this aggravating circumstance has two
components. First, the State must establish that
the defendant committed some “predicate
crime,” separate from the murder.22 Second, the
State must establish that the defendant killed
the victim with the motive or intent of avoiding arrest or prosecution for this separate predicate crime.23 We have recognized that the
defendant’s intent in this regard can be
inferred from circumstantial evidence.24
¶8 In most cases in which the avoid arrest
aggravator is found by the jury, the “predicate
crime” is also charged as a separate crime and
results in a separate conviction. Such cases typically involve first-degree malice murder convictions, with separate convictions for robbery,25 burglary,26 rape,27 kidnapping,28 or one or
more other murders.29 This separate crime (or
crimes) then also constitutes the predicate
crime for the avoid arrest aggravator in the
second stage of the capital trial. Similarly, in
cases in which the capital defendant is charged
with first-degree felony murder, the crime that
serves as the underlying felony for the murder
conviction can also serve as the predicate
crime for the avoid arrest aggravator in the
second stage.30
¶9 In either of these typical scenarios, a jury
(or trial court) will have found the defendant
guilty, beyond a reasonable doubt, of the crime
alleged as the avoid-arrest “predicate crime”
1726
before the capital stage even commences. In
other cases the predicate crime relied upon is
not separately charged or specifically found by
a jury during the first stage, but the evidence
that such a separate crime occurred — and
what the separate crime relied upon is — is not
in doubt.31
¶10 The context of Mitchell’s capital resentencing, however, was very different from
these typical scenarios. In Mitchell’s original
trial, he was convicted of rape (and also
sodomy), which then served as the predicate
crime to support the avoid arrest aggravator in
the second stage of his trial.32 Mitchell’s rape
and sodomy convictions have been vacated,
however, and the State has chosen not to
reprosecute him for these crimes — and now
has abandoned the sodomy allegation entirely
— proceeding instead directly to a retrial of
Mitchell’s capital sentencing. Although this
Court has previously found that the State is
not required to separately charge the crime
relied upon as the avoid-arrest predicate
crime,33 the history of Mitchell’s case raises
numerous questions about the manner in
which the State was allowed to allege, argue,
and prove the avoid-arrest predicate crime(s)
in this case.
¶11 In Proposition I, Mitchell challenges the
argument that the State was allowed to make
in support of the avoid arrest aggravator, particularly the claim that he either “raped” Scott
or committed some non-specific “sexual
assault” against her. He also challenges the
adequacy of the jury instructions regarding
this
aggravator,
under
the
specific
circumstances of his trial, and in light of the
Supreme Court’s decision in Ring v. Arizona34
and subsequent cases.
¶12 We begin by addressing Mitchell’s claim
that the State should not have been allowed to
argue or rely upon “rape” as the predicate
crime for the avoid arrest aggravator in his
case. As noted, the State chose not to reprosecute Mitchell for rape or sodomy after the federal district court vacated those convictions.35
After the Tenth Circuit vacated Mitchell’s
death sentence, however, the State did reinitiate death penalty proceedings against him,
though it initially neglected to file a new Bill of
Particulars. Before the resentencing, Mitchell
filed a Motion to Strike the Avoid Arrest
Aggravator for “Insufficient Evidence” and a
Motion in Limine “to prohibit the Prosecutor
Vol. 77 — No. 17 — 6/10/2006
or any witnesses called by the State from mentioning, arguing, or inferring the deceased,
Elaine Scott, was vaginally or anally raped or
sodomized,” in light of the federal court decision vacating those convictions and the State’s
decision not to retry those charges.36 The State
filed no response to either of these motions.37
¶13 During a lengthy pre-trial hearing on
Mitchell’s motions, defense counsel argued
that because the State had not appealed the
vacating of the rape and sodomy convictions
and had chosen not to reprosecute those
charges, the State should not be allowed to
argue that Mitchell had, in fact, raped Elaine
Scott or to use such a rape as the predicate
crime for the avoid arrest aggravator.38
Mitchell’s counsel acknowledged that the State
would be allowed to present the physical evidence that suggested a possible sexual crime
— in particular, the fact that Scott was found
nude, that Mitchell’s semen was found in
combings of her pubic hair, and that she had
certain bruising. Yet defense counsel insisted,
relying primarily upon Cummings v. State,39
that the State should not be allowed to rely
upon “rape” as a predicate crime for the avoid
arrest aggravator.40
¶14 The State maintained that it should be
allowed to argue that a rape occurred and to
rely on such rape as a possible predicate crime:
“[T]he evidence is going to be that the defendant killed her as a result of a rape or a sexual
assault.”41 Although the prosecutor purported
to accept the federal courts’ Brady-based
habeas rulings, and acknowledged that the
vaginal swabs taken from the victim did not
contain Mitchell’s DNA, he mocked the implication in the federal opinions that the evidence
did not support a rape charge: “[T]he absence
of trauma to the vagina was understood
apparently as being evidence that a rape had
not occurred. This court knows from your
experience as a trial lawyer and now a judge
that that is an utterly meaningless fact.”42 The
State attempted to distinguish Cummings and
maintained that it should be allowed to argue
that a rape occurred, which could serve as the
basis for the avoid arrest aggravator.
¶15 The trial court accepted the State’s argument, overruled Mitchell’s motions, and ruled
that the State could argue that a rape occurred
and that Mitchell murdered Scott to avoid
being arrested or prosecuted for that rape. The
court found that it would be “ludicrous” to
Vol. 77 — No. 17 — 6/10/2006
allow the State to present the physical evidence of some kind of sexual assault, but then
limit the State’s ability to “argue any reasonable inference that you could draw from that.”
The court concluded that the State’s evidence
of a rape “certainly rise[s] to the level of the
preponderance of evidence the State is
required to present that evidence.”43
¶16 During the resentencing the State repeatedly invoked its theory that Mitchell raped
Scott and then murdered her to avoid being
prosecuted for that rape.44 The prosecutor
referred to this rape theory of the case multiple
times during voir dire,45 began his opening
statement with it,46 and then invoked it again
during closing argument.47
¶17 In Cummings v. State,48 the State relied
upon two crimes as the predicate crime for the
avoid arrest aggravator, for the defendant’s
murder of Melissa Moody: (1) the defendant’s
rape of Melissa, and (2) his murder of her
mother.49 We concluded that neither of these
crimes could be used as the predicate crime for
the aggravator in that case. This Court wrote:
We find merit to Appellant’s argument that
evidence of the dismissed [child
abuse/rape] charge should not have been
used to support [the avoid arrest] aggravating circumstance. The trial court found
as a matter of law that Appellant was not
guilty of the crime of child abuse as
charged and accordingly, the alleged acts
that the State relied upon to support this
charge should not be used to support this
aggravating circumstance. Similarly,
because this Court found . . . that the evidence was insufficient to support Appellant’s conviction for killing Judy Mayo, it
follows that the evidence must also be
insufficient to support a finding that
Appellant killed Melissa Moody to avoid
arrest or prosecution for this crime.50
We concluded that under those circumstances,
the State’s evidence was insufficient to support
the avoid arrest aggravator.51
¶18 Cummings compels us to conclude that
the trial court erred in allowing the State to
argue “rape” as the avoid-arrest predicate
crime in the current case. The Cummings holding that the murder of Judy Mayo could not be
used as a predicate crime for the avoid arrest
aggravator is particularly significant.52 Unlike
the rape of Melissa Moody — about which
1727
there was no physical evidence and no certainty that the crime had actually occurred — there
could be no doubt that Judy Mayo was violently killed.53 This Court overturned the
defendant’s conviction for Judy’s murder
based entirely upon Oklahoma’s requirement
that accomplice testimony be independently
corroborated, rather than a “garden variety”
finding of insufficient evidence.54 Consequently, the holding that Judy’s murder could not
serve as the avoid-arrest “predicate crime” for
Melissa’s murder provides strong support for
this Court’s current conclusion.55 We hold that
when the State’s evidence is (or would be)
inadequate to support a conviction for a
particular crime, such crime also cannot serve
as the predicate crime for the avoid arrest
aggravator.56
¶19 The State emphasizes in its brief that the
grants of habeas relief in this case were
premised upon violations of Brady v. Maryland.57 Hence, the State argues that there has
been no formal court finding (as there was in
Cummings) that the (legitimate) evidence in
this case is legally insufficient to establish that
Mitchell raped Elaine Scott.58 The resentencing
trial court needed to resolve this issue, in order
to rule upon Mitchell’s motions and his
numerous objections to the State’s references
to “rape” and its reliance upon rape as the
avoid-arrest predicate crime. Yet the trial court
declined to make this finding, and ruled, based
only upon a “preponderance” standard, that
the State’s evidence was legally sufficient to
allow it to argue that Mitchell raped Scott and
that he killed her to avoid being arrested or
prosecuted for that rape.59
¶20 This Court concludes, upon reviewing
the remaining evidence in this case, that the
State’s evidence could not support a conviction
for rape, because there is simply no evidence of
penetration,60 which is a required element of
this crime.61 This is an evidentiary determination, of the kind courts are regularly called
upon to make, and which the trial court was
called upon to make. This Court does not
know, in fact, whether or not Alfred Brian
Mitchell raped Elaine Scott. It is entirely possible that he did. It is also entirely possible, and
consistent with the evidence, that Mitchell did
everything in his power to rape Scott, but that
he simply could not overcome her desperate
and powerful resistance, in order to “succeed”
in actually raping her.62
1728
¶21 While Mitchell’s moral culpability may
well be the same whether or not he was able to
complete the intended rape, his legal culpability is not. The State simply does not have the
evidence to establish the crime of rape.63
Hence, under Cummings, the State should not
have been allowed to argue that Mitchell killed
Scott in order to avoid arrest or prosecution for
raping her, i.e., rape could not serve as the
predicate crime for this aggravator. And the
trial court abused its discretion in overruling
Mitchell’s motion in limine and in allowing the
State to rely upon rape as a possible predicate
crime for the avoid arrest aggravator.64
¶22 Within Proposition I, Mitchell also
asserts that the State should have been
required to allege a specific, statutorily-established crime as the avoid-arrest predicate
crime, rather than simply allege a “sexual
assault.”65 In addition, Mitchell asserts that the
State should have been required to establish
each of the elements of the avoid-arrest predicate crime “beyond a reasonable doubt,” in the
same manner as if the predicate crime were
being individually prosecuted.66 Because this
Court is already striking down the avoid arrest
aggravator, based upon the State’s reliance
upon “rape” as the predicate crime, as well as
the State’s failure to give notice of its intent to
rely upon armed robbery and larceny of an
automobile as the predicate crime (discussed
in Proposition II), this Court declines to decide
these issues in the current case.67
¶23 The separate opinion in this case,
authored by Judge Lumpkin and joined by
Judge Taylor, correctly observes that the defendant’s motivation for killing is the focus of the
avoid arrest aggravator.68 The separate opinion
goes too far, however, when it asserts that this
aggravator “must be viewed through the eyes
of the defendant,”69 such that all that is
required to satisfy the aggravator is that the
defendant commit acts that the defendant
“believes”/“thinks” could lead to his arrest or
prosecution.70 Although this approach may
have some initial intuitive appeal, it is contrary
to the language of the avoid arrest aggravator
and the precedents of this Court.
¶24 The statutory language of the aggravator
requires that the defendant murder the victim
“for the purpose of avoiding or preventing a
lawful arrest or prosecution.”71 The use of the
word “lawful” in this context establishes that
the applicability of the aggravator does not
Vol. 77 — No. 17 — 6/10/2006
depend merely upon what is going on inside
the head of the murderer, but also on the actual state of the law and how it applies to the
act(s) for which the murderer fears being held
accountable. If a defendant cannot be lawfully
arrested or prosecuted for the act(s) for which
he is trying to avoid being arrested/prosecuted, this aggravating circumstance does not
apply — no matter how sincere the defendant
was in his mistaken understanding of the law
and no matter how morally reprehensible the
murder.72
¶25 As summarized earlier, the presence of a
“predicate crime” has long been recognized by
this Court as one of the two requirements of
the avoid arrest aggravating circumstance.73
The approach advocated by today’s separate
opinion would effectively eliminate this
requirement, since it would require only an
examination of the defendant’s motivation.
Despite the challenges presented by the current case, the separate opinion provides neither authority nor a compelling argument to
cause this Court to depart from our consistent
caselaw requiring a “predicate crime” that is
“separate from the murder.”74
¶26 In Proposition II, Mitchell challenges the
fact that the trial court allowed the State to
argue that he killed Scott in order to avoid
arrest or prosecution for stealing her purse and
her car, even though the State did not give any
pre-trial notice that it would rely on these
crimes to help support the avoid arrest aggravator. In fact, the State did not even bring up
Mitchell’s convictions for armed robbery and
larceny of an automobile — or the possibility
of relying on either of them as the avoid arrest
predicate crime — until after the defense had
presented all of its evidence and rested.75
¶27 The State acknowledged that it had
given no notice of its intent to rely upon these
crimes to support the avoid arrest aggravator,
but argued that Mitchell had adequate notice
of the convictions and the underlying facts,
and that unless Mitchell could provide a specific case to the contrary, the State should be
allowed to rely upon the robbery and larceny
convictions to support the aggravator. The trial
court accepted the State’s argument, noting
that “all the parties know the defendant was
convicted of these crimes,” and concluded:
“Anyway, in the absence of you providing any
case to the contrary, I believe that you have
had sufficient notice through an abundance of
Vol. 77 — No. 17 — 6/10/2006
evidence through the entirety of the first trial
to everything that occurred in that first trial.”76
Consequently, during the State’s closing argument, the prosecutor argued that Mitchell
murdered Scott, at least in part, to avoid arrest
or prosecution for his crimes of stealing her
purse and her car.
¶28 Oklahoma law requires that the State
provide notice of the evidence that it intends to
rely upon to support the aggravating circumstances alleged: “Only such evidence in aggravation as the state has made known to the
defendant prior to his trial shall be admissible.”77 This Court has recognized that although
the State is not required to give a detailed
description of all the evidence that will be
offered in the second stage, the State’s notice
must allow the defendant the opportunity to
present a defense to or an explanation of the
evidence offered in support of the aggravating
circumstances.78 The State argues that Mitchell
had notice that the State was seeking to establish the avoid arrest aggravator and that
Mitchell knew about the evidence supporting
the robbery and larceny convictions, some of
which came in during the resentencing, and all
of which was purportedly “incorporated”
from the first trial.79 Yet Mitchell had no notice
whatsoever that the State intended to rely
upon his robbery and larceny convictions as
possible predicate crimes for the avoid arrest
aggravator.80
¶29 Hence the State’s notice of its intent to
rely upon the armed robbery and larceny convictions to support the avoid arrest aggravator
was entirely inadequate, and the trial court
abused its discretion in allowing the State to do
so over defense objection. It violated due
process to allow the State to rely upon these
crimes, and thereby substantially expand its
avoid arrest theory, after Mitchell had already
finished cross-examining the State’s witnesses
and presenting his own case. Furthermore, in
the context of Mitchell’s trial, where there was
already so much uncertainty surrounding
what the State was relying upon as the “predicate crime,” Mitchell was certainly prejudiced
by this error.
¶30 This Court notes that the actual evidence
that Mitchell killed Scott to avoid being arrested or prosecuted for stealing her purse or her
car is minimal, at best. Although there was
some evidence presented during the resentencing regarding the robbery of Scott’s purse, this
1729
evidence was not focused upon or substantially developed; hence its significance as a motivating factor for the murder is nebulous.
Regarding the theft of Scott’s car, this Court is
unaware of any evidence suggesting that this
theft occurred prior to the murder or that it
played any motivating role in the murder at
all. If either of these crimes is to be used as a
predicate crime for the avoid arrest aggravator
at any further resentencing, Mitchell must be
provided notice of the State’s intention to do so
and of the factual evidence upon which the
State will rely.
¶31 We note that certain language in the
opinion from the Tenth Circuit Court of
Appeals suggests that court’s expectation that
Mitchell’s resentencing would be free of any
evidence suggesting that Mitchell committed a
sexual crime against Scott.81 We do not share
this perspective. This Court recognizes and
deplores the serious Brady violations and related misconduct committed by the State in connection with Mitchell’s original trial. Nevertheless, the State’s actions in pursuing this case
have done nothing to diminish or absolve the
horrifying abuse and murder that Elaine Scott
endured at the hands of Alfred Brian Mitchell.
¶32 Even Mitchell does not allege that the
State’s actions in the handling of his case are
responsible for the fact that Scott was found
nude, or the fact that his semen was found in
her pubic hair (and on a sheet in which her
body was wrapped), or the bruising on various
parts of her body. The wrongs committed by
the State in the prosecution of Mitchell’s case
do not entitle him to a windfall regarding the
actual state of the evidence, nor should the
State be prohibited from arguing the legally
permissible implications of this evidence.82 In
particular, this Court finds that the evidence at
the crime scene is sufficient for the State to
argue that Mitchell attempted to rape Scott,
and that he killed her in order to avoid arrest
or prosecution for the crime of attempted rape.
¶33 In Proposition III, Mitchell challenges
the sufficiency of the evidence presented during his resentencing to support the jury’s finding of the avoid arrest aggravator. In evaluating such a sufficiency challenge, we view the
evidence in the light most favorable to the
State, to determine whether any rational trier
of fact could have found the aggravator
beyond a reasonable doubt.83 This Court has
already addressed the sufficiency of the evi1730
dence to support the State’s use of rape as a
predicate crime (finding the evidence insufficient) and also addressed the potential evidentiary basis for relying upon crimes such as
attempted rape or armed robbery as the predicate crime.
¶34 Yet Mitchell makes a further claim in
Proposition III, based upon our decision in
Williams v. State.84 Mitchell claims that regardless of what type of sex crime he may have
committed against Scott, this crime was not
truly “separate” from the murder. Hence he
argues that the avoid arrest aggravator must
be vacated and that it cannot be established in
this case. In Williams, this Court struck down
the avoid arrest aggravator, based upon our
prior decision in Barnett v. State,85 finding that
the murder of the female victim in Williams
was not sufficiently “separate” from the
attempted rape alleged as the predicate crime.
The facts in the present case fit the pattern of Barnett. The only evidence presented of the attempted rape was Appellant’s
statement to his psychiatrist that he
intended to rape Hand, but when he
pulled out the knife she tried to get away
and screamed for her roommate. He further said he stabbed her one time intending only to silence her. Under this evidence, the attempted rape was not separate and distinct from the murder itself,
but rather was part of a continuing transaction which culminated in the death of
the victim.86
Thus the attempted rape could not be used as
the predicate crime for the avoid arrest aggravator in that case; and the aggravator had to be
struck down.87
¶35 The current case is distinguishable from
Williams.88 The evidence of an attempted rape
in Mitchell’s case is more substantial and also
more separable from the actual murder. The
victim in Williams was fully clothed, and the
evidence in that case suggests that the defendant’s plan to rape her was abandoned almost
immediately after the encounter began —
when the victim screamed for her roommate
and attempted to escape.89 In Mitchell’s case,
the condition of Scott’s nude body, including
the finding of Mitchell’s semen in her pubic
hair, strongly suggests that this defendant’s
plan had progressed much further. In addition,
the fact that the fatal stabbing in Williams may
have been part of the defendant’s attempt to
Vol. 77 — No. 17 — 6/10/2006
rape the victim (by subduing her) suggests
that any attempted rape in that case was more
intermingled with the murder — whereas
Mitchell’s actions in stripping Scott, leaving
bruises on her hips, and leaving his semen on
her body were totally separate from and prior
to the violent blows from the coat tree that
ultimately killed her.90
¶36 Although the issue is a close one, we
conclude that the evidence in the current case
could be sufficient to establish that the crime of
attempted rape (or other comparable sex
crime) was sufficiently separate and distinct
from Scott’s murder, so as to allow the State to
pursue the avoid arrest aggravator in a further
resentencing. In addition, the evidence in this
case established that Scott knew who Mitchell
was and that Mitchell made no attempt to disguise or hide his appearance at the time he
attacked Scott. Hence Mitchell would have
known that Scott could identify him if she survived, which we have previously recognized
as a factor in establishing the avoid arrest
aggravator.91
¶37 For the reasons stated in Propositions I
and II, the avoid arrest aggravating circumstance found by the jury in Mitchell’s resentencing must be struck down. As explained
herein, however, the State shall not be precluded from re-pursuing this aggravator in any
future resentencing, so long as it abides by the
limitations and restrictions articulated by this
Court in doing so.
¶38 In Proposition IV, Mitchell challenges
the trial court’s removal of six prospective
jurors based upon their reservations about the
death penalty, arguing that it was not adequately established that these jurors would not
follow the law.92 Each of these prospective
jurors was removed sua sponte by the court,
over defense objection and without allowing
defense counsel any opportunity to attempt to
rehabilitate them through further voir dire
questioning. Mitchell argues that these
removals violated Witherspoon v. Illinois.93
Mitchell also argues that the trial court abused
its discretion, by denying him a chance to further question the six excused jurors.
¶39 This Court has repeatedly recognized
that the standard for capital juror acceptability
in Oklahoma is whether, in a case where the
law and facts make a defendant eligible for the
death penalty, each juror will be willing to consider each of the three authorized punishments:
Vol. 77 — No. 17 — 6/10/2006
the death penalty, life imprisonment without
the possibility of parole, and life imprisonment
(with the possibility of parole).94 Thus we have
repeatedly held that willingness to “consider”
the death penalty is all that can legally be
required of a juror with moral reservations
about this penalty: “[T]he only legitimate concern is whether each jury member is willing to
consider imposition of the death sentence, as
one of the alternatives provided by state law,
should the case be appropriate for that punishment.”95 This standard does not require that a
juror be willing to state that he or she can think
of some situation in which he or she will actually vote to impose or recommend a death sentence.96
¶40 Prospective Juror M.M. was the first
juror to be questioned by the trial court regarding willingness to consider all three possible
punishments for first-degree murder. This
questioning was as follows:
THE COURT: . . . Mr. [M.M.], can you
consider all of the legal punishments,
death, imprisonment for life without
parole, or imprisonment for life, and
impose the one warranted by the law and
by the evidence?
PROSPECTIVE JUROR M.M.: Third
one.
THE COURT: The third one what?
PROSPECTIVE JUROR M.M.: Imprisonment for life, the third one.
THE COURT: Okay. And maybe, Mr.
[M.M.], I’ve not explained myself very
well. Let me explain again.
There are three possible punishments
in this case. The state is seeking the death
penalty, but there are three possible legal
punishments: Death, life without the possibility of parole, and life with the possibility of parole. Okay? What I want to know
— and each of you jurors I want you to be
thinking about as I talk to Mr. [M.M.] about
it — is whether you can give honest,
thoughtful consideration to all three possible punishments and impose the one that
you believe is warranted by the law and by
the evidence. And when I say consideration, I’m not paying lip service to it.
It’s kind of like I hate Brussels sprouts
and I will never ever, ever eat them. Okay?
But when I go down the cafeteria line and
1731
I look at Brussels sprouts, I might look at
them and go, no, and then I go on. Some
people think that’s considering them.
That’s not what I’m talking about here.
Because I know in my heart of hearts that I
will never eat Brussels sprouts. Okay? It’s
a more simplistic explanation, but that’s
what I want every one of you to think
about.97 Will you give honest, thoughtful
consideration to all three punishments and
impose the one that you believe is warranted by the law and the evidence?
Can you do that Mr. [M.M.]?
PROSPECTIVE JUROR M.M.: Yes.
THE COURT: You can consider all
three punishments?
PROSPECTIVE JUROR M.M.: No. Life
without.
THE COURT: Can you consider all
three punishments, death, life without the
possibility of parole, or life imprisonment?
THE COURT: Mr. [M.M.], I’m not sure
if we’re not communicating, I’m not — you
say yes and then you say no. Do you have
a problem?
PROSPECTIVE JUROR M.M.: No, I
don’t have a problem.
THE COURT: Okay. You can consider
all three punishments?
PROSPECTIVE JUROR M.M.: No, just
the second one.
THE COURT: Okay. You can consider
life without parole or life?
THE COURT: Can you consider the
death penalty?
PROSPECTIVE JUROR M.M.: No.
THE COURT: Okay. Are there any circumstances that you can envision where
you could consider the death penalty?
PROSPECTIVE JUROR M.M.: No.
THE COURT: All right. Mr. [M.M.], I’m
going to excuse you for cause. . . .
¶41 Defense counsel immediately approached
the bench and requested an opportunity to
1732
voir dire this juror, noting that M.M. twice stated that he could consider all three punishments and also gave inconsistent answers. The
trial court responded: “He did originally give
inconsistent answers. I, frankly, don’t know if
he didn’t understand my question or didn’t
much want to talk to me. He had probably one
of the worst attitudes of any juror I’ve seen in
here . . . .” The court ruled, however, that
because M.M. stated that he would not consider the death penalty and that he would not
change his mind about it, further voir dire was
not required.98 Defense counsel continued to
press for further voir dire, suggesting that
M.M. may not have understood the questioning, but the court denied these requests and
struck M.M. over defense objection.99
¶42 When Prospective Juror T.P. was asked
whether she could consider all three
punishments, the following exchange
occurred:
PROSPECTIVE JUROR T.P.: It would be
hard for me to choose the death penalty. I
could do everything up to that, and I
would do that. I’ve seen situations where I
felt like it was warranted, but was so glad
I wasn’t making that decision.
THE COURT: Okay. And I would expect
that it will be a difficult decision for everybody as to whatever decision they ultimately make. The question that I have for
you, ma’am, is can you give honest,
thoughtful consideration in the manner
that I have described, not just pay lip service to it, but honest, thoughtful consideration to that punishment, as well as the
other two punishments, and impose the
sentence of death if you believed it was
appropriate?
PROSPECTIVE JUROR T.P.: I don’t think I
could.
THE COURT: You could not do that?
PROSPECTIVE JUROR T.P.: I don’t think
so.
THE COURT: Okay. And you have said
you could — I think you said to me earlier,
I can envision where that would be appropriate but I’m glad I didn’t have to decide
that. Can you envision any set of circumstances where you, along with other jurors,
would impose a sentence of death?
PROSPECTIVE JUROR T.P.: Yes, I can.
Vol. 77 — No. 17 — 6/10/2006
THE COURT: Okay. Is your decision about
the death penalty — let me ask you this: So
you’re saying you can envision a scenario
where it would be.
PROSPECTIVE JUROR T.P.: I can presume
him innocent.
THE COURT: Sure.
PROSPECTIVE JUROR T.P.: And decide,
yes, he was guilty of, and be in a jury room
where everybody felt like he should be put
to death and I could agree on that.
THE COURT: Okay. And can you do that
in this case?
PROSPECTIVE JUROR T.P.: Yes.
THE COURT: Okay. Then I misunderstood
you before. I’m sorry.
PROSPECTIVE JUROR T.P.: Do you have
to want to do it?
THE COURT: No. What you have to —
what you have to be able to do is to truly
— I mean, what you have to be able to do
right now is tell me, I honestly believe in
all fairness that I can consider all three
punishments and I can impose death if I
believe it’s appropriate, I can impose life
without the possibility of parole if I believe
it’s appropriate . . . , and I can impose life if
I believe that’s the appropriate sentence.
Can you fairly [sic] and tell me those three
things? You can do that?
PROSPECTIVE JUROR T.P.: Yes.
THE COURT: Okay. You feel confident of
that?
PROSPECTIVE JUROR T.P.: No, I don’t.
THE COURT: Okay.
PROSPECTIVE JUROR T.P.: I’m sorry. I’m
sorry.
THE COURT: That’s okay. I’ll come back to
you. I want you to think about it a little
more. Okay?
¶43 After questioning other jurors, the trial
court returned to Prospective Juror T.P. This
time their exchange was as follows:
THE COURT: I’ve given you a little bit of
time to think about it. Can you consider all
three of the legal punishments, death, life
without the possibility of parole, and life,
Vol. 77 — No. 17 — 6/10/2006
and impose the one that you believe is
warranted by the law and the evidence?
PROSPECTIVE JUROR T.P.: Your Honor, I
appreciate the time. I’ve always been
against the death penalty and do not feel
like I can consider that.
THE COURT: Okay. Let me ask you this:
Are you saying that if under the evidence,
facts, and circumstances of this case the
law would permit you to consider a sentence of death that your reservations about
the penalty of death are so strong that
regardless of the law, the facts, and circumstances of the case you would not impose
the punishment of death?100
PROSPECTIVE JUROR T.P.: That’s right, I
wouldn’t.
THE COURT: Okay. And would you
change your mind or are you unequivocal?
PROSPECTIVE JUROR T.P.: I’m unequivocal.
The trial court then struck T.P. for cause, over
defense objection, and refused to allow
defense counsel any opportunity to question
her.101
¶44 Prospective Jurors M.M. and T.P. certainly fit the standard of giving equivocal answers
regarding their willingness to consider the
death penalty.102 The transcript reflects that the
trial court had difficulty determining the eligibility of these jurors to serve. Yet the trial court
failed to ask M.M. the appropriate clarifying
question, under our uniform jury instructions,
about his willingness to consider the death
penalty despite his objection to it.103 Because
the last-recorded answers of both M.M. and
T.P. indicated that they were not able to consider the death penalty, this Court cannot conclude that the trial court erred when it struck
them for cause. However, because these jurors
had also indicated (more than once) that they
could, in fact, consider the death penalty, we
conclude that the trial court abused its discretion in not allowing defense counsel an opportunity to further question them.104
¶45 This Court is particularly concerned by
the inconsistent approach that the trial court
adopted toward jurors who indicated a predisposition toward a particular penalty. On each
of the six occasions when the trial court
encountered a juror with reservations about
the death penalty, the court alone questioned
1733
the juror, and then struck him or her without
even waiting for a request from the State. The
court also denied Mitchell any opportunity to
voir dire these six jurors, despite the strenuous
objections of his counsel. Yet when later
prospective jurors expressed an unwillingness
to consider either or both of the life sentence
options, the trial court’s approach was rather
different.
¶46 During defense counsel’s voir dire,
Prospective Juror S.O. repeatedly stated that
he believed that the death penalty was the only
appropriate penalty for someone who takes
the life of another person.105 When defense
counsel asked that S.O. be struck for cause, the
trial court — though not challenging counsel’s
characterization of S.O. as “unequivocal” —
announced, “I’m just going to ask him a couple
questions,” in order to be “certain.”106 When
the court later encountered another juror
expressing a parallel view, the court seemed to
struggle to avoid striking the juror, despite his
clear intent to consider only the death penalty.107 Furthermore, when two other jurors indicated that they would not be able to consider a
life sentence (with parole),108 after hearing that
Mitchell’s case involved allegations of
rape/sexual assault, the trial court labored
mightily to persuade the jurors that they
should not exclude themselves too hastily,
since the facts of the case were not yet
established.109
¶47 The voir dire questioning in Mitchell’s
case, in which the only issue before the jury
was his sentence for the first-degree murder of
Elaine Scott, lasted more than two days. This
Court notes that the trial court’s unwillingness
to provide Mitchell any opportunity to voir
dire jurors who expressed reservations about
the death penalty — even jurors whose
answers were unquestionably equivocal —
stands in sharp contrast to the court’s willingness to allow and even assist in protracted
attempts to rehabilitate jurors who expressed
an unwillingness to consider one or both of the
life sentences at issue. This Court also notes
that the necessity of removing the two jurors
who would not consider a regular life sentence
(after they heard the prosecutor’s portrayal of
Mitchell’s murder and rape/sexual assault of
Scott), appears to be the direct result of the trial
court’s failure to place any significant limitations on the State’s voir dire “questioning,”
which repeatedly covers multiple transcript
pages without the asking of a legitimate ques1734
tion, and often reads more like an opening
statement or even a closing argument.110
¶48 This Court finds that the trial court’s
willingness to allow almost totally unconstrained questioning/argument from the State
during voir dire made the court’s refusal to
allow any attempt by Mitchell to rehabilitate
the challenged jurors even more unfair. The
treatment of the two parties during voir dire
was far from even-handed, and this Court will
consider this disparity in its determination of
how to remedy the other errors found herein.
¶49 In Proposition V, Mitchell challenges
various references to rape and sexual assault
made by the prosecutor during voir dire,
asserting that the remarks predisposed jurors
to the idea that he raped Scott. Mitchell cites no
authority in support of this particular claim;
and this Court has already addressed the propriety of the State’s references to rape and sexual assault within Proposition I. Hence we do
not further address this claim.
¶50 In Proposition VI, Mitchell challenges
the admission into evidence of numerous
graphic photographs of the victim’s body, both
at the crime scene and in connection with the
autopsy, as well as a videotape of the crime
scene showing the body. Defense counsel vigorously objected to the photographs — both to
individual photographs and to the overall
impact of so many disturbing pictures — arguing that they were cumulative and that their
probative content was substantially outweighed by their prejudicial effect. Mitchell
also vigorously objected to the crime scene
videotape, arguing that it was cumulative to
all of the other evidence and unduly
prejudicial.
¶51 Among the numerous crime scene photographs admitted into evidence, twenty-two
different pictures show all or a portion of the
victim’s body.111 In addition, fourteen different
autopsy photographs were admitted, further
highlighting the victim’s injuries.112 The crime
scene and autopsy photographs were introduced into evidence and published to the jury
during the testimony of Lieutenant Vance
Allen. These same photographs were then
used and displayed extensively a second time,
during the “crime scene reconstruction” testimony of Tom Bevel.113 The prosecutor acknowledged at trial that only a few of these
photographs were admitted during Mitchell’s
original trial.114
Vol. 77 — No. 17 — 6/10/2006
¶52 During Bevel’s testimony the jury was
also shown a silent videotape of the crime
scene, which repeatedly panned over the victim’s body and even showed significant insect
activity on and around the body.115 In addition,
and prior to the testimony of both Allen and
Bevel, the medical examiner (Dr. Larry Balding) testified in great detail about the nature
and extent of Scott’s injuries; and his diagrams
of these injuries were admitted into evidence.
¶53 This Court is very troubled by the extent
of graphic and potentially inflammatory evidence that was provided to Mitchell’s resentencing jury, which went so far beyond the evidence used in his original capital trial.
Although a substantial portion of this evidence
was certainly admissible, particularly insofar
as it was relevant to the “heinous, atrocious, or
cruel” and “continuing threat” aggravating
circumstances, we find that the trial court
abused its discretion by failing to properly
constrain the State in its presentation of this
evidence, much of which was cumulative.116
We further find that the trial court’s failure to
do so supports our determination, in Proposition XVI, that Mitchell’s death sentence must
be overturned. Although we decline to determine precisely which exhibits should have
been excluded, we trust that any further proceedings in this case will be conducted with
due regard for the limited issues before the
resentencing jury and the necessity of avoiding
undue prejudice to the defendant.
¶54 In Proposition VII, Mitchell raises seven
different challenges to evidentiary rulings
made by the trial court. We take up these
issues in turn. First, Mitchell notes that the trial
court allowed the State to read into the record
the testimony of two witnesses, Velma Kibbey
and Andre Wilson, without first making a
determination that these witnesses were
unavailable.117 The State notes that Mitchell did
not object on this basis, waiving all but plain
error. Mitchell did object, however, that the
evidence was irrelevant — a point that the
State now apparently concedes.118 This Court
agrees that the testimony of these witnesses
was irrelevant to the issues at stake in the
resentencing, since it related only to the question of whether Mitchell killed Scott. Nevertheless, we find no plain error in the court’s
failure to rule on the availability of these witnesses and no prejudice from the unnecessary
presentation of their testimony.119
Vol. 77 — No. 17 — 6/10/2006
¶55 Second, Mitchell challenges the trial
court’s refusal to allow him to present mitigating evidence, in the form of two letters, a
poem, and a birthday card, all sent by Mitchell
to his younger brother, Michael Postoak.120 In
his transcribed testimony, Postoak described
his close relationship with his older brother,
even though Mitchell had been imprisoned,
which included receiving letters, birthday
cards and phone calls from Mitchell.121
Although the State raised no objection to Postoak’s recorded testimony, it raised a hearsay
objection to the admission of the actual written
materials, which the trial court sustained.122
¶56 We addressed the admissibility of similar letters from a capital defendant in Medlock
v. State.123 We concluded that under Lockett v.
Ohio124 and Eddings v. Oklahoma,125 such letters
“are relevant mitigating evidence that should
have been admitted.”126 The State offers no
response to the authorities cited by Mitchell.
We likewise find no reasonable basis for the
trial court’s decision. The constitutional mandate to allow a capital defendant broad scope
in the presentation of mitigating character evidence is well established, as is the error in
mechanistically applying the rules of evidence
to defeat this right.127
¶57 The letters from Mitchell to his younger
brother suggest a positive, nurturing, even
devout side to his personality, in a way that
none of the other evidence presented at his
capital resentencing could or did, especially
because they present the defendant in his own
voice.128 The potential for such evidence to
“humanize” a defendant — particularly a
defendant who has committed crimes as horrifying as Mitchell’s — is far from insignificant
and must not be lightly overlooked. We find
the trial court erred in excluding this evidence.
The impact of this error will be addressed
within Proposition XVI.
¶58 Third, Mitchell challenges the testimony
of Detective John Maddox, in which Maddox
summarized Mitchell’s own testimony from
the original trial. Mitchell raised no objection
to this testimony during the resentencing; nor
does he assert that Maddox’s summary was
inaccurate. We find no plain error.
¶59 Fourth, Mitchell challenges the admission into evidence of State’s Exhibit 227, a
timeline prepared by Tom Bevel, which summarizes Bevel’s testimony about the “probable
sequence of events” in the Scott homicide.
1735
Mitchell argues that the timeline should not
have been admitted as a regular exhibit. The
State characterized the timeline as “a demonstrative aid to the jury to help them with Captain Bevel’s testimony.” Yet the court admitted
it as a regular exhibit. Mitchell failed to object
on the basis now raised, relying instead on his
broader objection to Bevel’s testimony.129 Nevertheless, we find plain error, based on the
State’s own (accurate) characterization of the
exhibit as a “demonstrative aid.”130
¶60 Fifth, Mitchell argues that the trial court
should not have compelled defense expert witness, Dr. Manuel Saint Martin, to talk to prosecutors about statements made to him by
Mitchell.131 Prior to trial the State was given Dr.
Saint Martin’s report, indicating his opinion
that, for a number of reasons (including a neardeath medical experience), Mitchell was now
“accepting responsibility” for his crime against
Scott. The State maintained that it was entitled
to probe the basis of this expert opinion,
including finding out what Mitchell said about
the murder of Scott during both interviews.
The trial court agreed and, over strong defense
objection, ordered Dr. Saint Martin to meet
with prosecutors and answer their questions
about what Mitchell told him.132
¶61 This Court finds that in the specific factual circumstances of this case, the trial court’s
ruling was correct. Mitchell chose to present
the testimony of Dr. Saint Martin, as an appropriate part of his mitigating evidence that he
was now accepting responsibility for what he
had done to Scott. In so doing, Mitchell waived
his Fifth Amendment protection against the
compelled production of this information, as
well as any attorney-client protection that
would have attached to this specific information. Mitchell cannot have it both ways, and
the trial court was correct in ordering Dr. Saint
Martin to reveal the factual basis of his expert
opinion. The cases cited by Mitchell are
inapposite.133
¶62 Sixth, Mitchell argues that the trial court
erred in allowing the State to question witness
Tom Bevel, over objection, using hypothetical
questions based upon information obtained
from Dr. Saint Martin.134 Mitchell’s challenge
relates only to timing, since Bevel testified
before Saint Martin. Before allowing the questioning, the trial court confirmed that Mitchell
did still plan to present the related testimony
from Saint Martin.135 Hence the trial court did
1736
not abuse its discretion in allowing the hypothetical-based questioning of Bevel; and
Mitchell was not prejudiced thereby.136
¶63 Seventh, Mitchell challenges the trial
court’s decision allowing the State to present
the testimony of Dr. Herman Jones, in order to
rebut Michell’s claim that he no longer poses a
continuing threat to society. This Court notes
that the resentencing jury rejected the “continuing threat” aggravator. Hence any error in
allowing this rebuttal testimony has been
rendered moot.137
¶64 In Proposition VIII, Mitchell challenges
the “crime scene reconstruction” testimony of
the State’s expert witness, Tom Bevel. Mitchell
acknowledges that this Court has approved
the admissibility of blood spatter analysis (also
known as bloodstain pattern analysis) and recognized Bevel as an expert in this field.138 He
argues, however, that the discipline of “crime
scene reconstruction” has not been similarly
approved or defined, nor have we previously
determined Bevel’s expertise in this area.
Hence he argues that the trial court erred in
failing to conduct a Daubert hearing regarding
Bevel’s testimony.139 Mitchell further argues
that even if crime scene reconstruction is a
legitimate discipline and appropriate for
expert opinion, Bevel’s testimony went
beyond the permissible boundaries of expert
opinion in this field, and that the trial court
failed to fulfill its role as gatekeeper regarding
Bevel’s expert testimony.
¶65 Although our cases have sometimes
referred to “crime scene reconstruction,” this
Court has not defined the parameters of crime
scene reconstruction as a discipline appropriate for expert testimony.140 Using the term
loosely, crime scene reconstruction is largely
the province of the jury, since it is the jury’s
role, as the finder of fact, to collectively “reconstruct” what happened at the time a crime was
(or was not) committed, and thereby determine the defendant’s accountability therefore.141 It is the role of the jury to take all of the
varying types of evidence put before it and, by
looking at the totality of this evidence, determine what actually occurred. This basic jury
function does not typically require the
assistance of an expert; nor is expert testimony
generally appropriate or admissible for this
purpose.142
¶66 On the other hand, “crime scene reconstruction,” using the term more narrowly, can
Vol. 77 — No. 17 — 6/10/2006
involve various specific fields of expertise,
such as fingerprint analysis, bloodstain pattern
analysis, DNA analysis, etc.143 And this Court
recognizes that a person could develop expertise in the discipline of bringing together such
fields of expertise — whether they be scientific, technical, or experience-based — to reach
broader conclusions than the individual fields
permit.144 Furthermore, an ability to synthesize
these different types of evidence, particularly
evidence of a type unfamiliar to most jurors,
could indeed assist the jury in its factfinding
role. Hence expert “crime scene reconstruction” testimony may be admissible to “assist
the trier of fact to understand the evidence or
to determine a fact in issue.”145
¶67 Nevertheless, as we emphasized in
Romano v. State,146 the nature and extent of this
testimony must be carefully limited, so that the
testimony does not usurp the jury’s fact-finding role: “While expert witnesses can suggest
the inferences which jurors should draw from
the application of specialized knowledge to the
facts, opinion testimony which merely tells a
jury what result to reach is inadmissible.”147 It
is the trial court’s essential role to serve as the
initial gatekeeper regarding the propriety of
expert opinion.148 Yet once it is established that
expert testimony in a particular field is admissible and that a witness is an expert in that
field, opposing counsel also plays a critical role
in ensuring that the specific testimony given
remains within appropriate parameters and
that the limitations of the expert’s testimony
are brought before the jury.149
¶68 In the current case, Bevel’s crime scene
reconstruction testimony was used to help
establish the various events involved in
Mitchell’s attack upon Scott and the most likely sequence of those events.150 The nature,
extent, and ordering of these events was relevant to the jury’s determination regarding the
“heinous, atrocious, or cruel” aggravating circumstance.151 Although one remark by the trial
court suggests that the court may not have
fully appreciated its role as gatekeeper,152
Mitchell fails to establish that any significant
testimony by Bevel was improper or unfairly
prejudicial to him.153 We conclude that the trial
court did not abuse its discretion in allowing
the crime scene reconstruction testimony of
Bevel.154 Mitchell was not prejudiced by the
court’s failure to hold a Daubert hearing in this
case, and this proposition is rejected entirely.155
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¶69 In Proposition IX, Mitchell raises the following six challenges regarding the victim
impact evidence admitted in his case: (1) victim impact evidence was admitted prior to the
State proving the existence of an aggravating
circumstance; (2) other family members of the
victim were allowed to testify after David Scott
testified as the “family representative”; (3) the
presentation of victim impact evidence
throughout the State’s resentencing case was
improper, unfair, and undermined the reliability of the proceeding; (4) victim impact evidence serves as an unconstitutional “superaggravator”; (5) the victim impact evidence
given was improper, as it focused solely on the
emotional impact of the victim’s death; and (6)
the uniform instruction regarding victim
impact evidence is unconstitutional, because it
refers to the “loss to society.” We take up these
arguments in turn.
¶70 First, we conclude that the State adequately established at least one aggravating
circumstance prior to the presentation of victim impact testimony.156 The first witness at
Mitchell’s resentencing was Maria Bustos, who
testified about Mitchell raping her when she
was 11 years old and he was 15 years old. The
second witness was Michael Harjochee, who
testified that he knew Mitchell from living in
the neighborhood and Elaine Scott from her
work at the Pilot Center, and that Mitchell
made a sexual comment about Scott to him.
Before David Scott was presented as the State’s
third witness — and first victim impact witness — the trial court ruled that the State had
adequately established the continuing threat
aggravator, in order to allow presentation of
victim impact evidence.157 Mitchell fails to
establish either error or prejudice in this
regard.158
¶71 Second, we take up Mitchell’s claim
about allowing victim impact testimony in
addition to that of a family representative.
Three victim impact witnesses testified at
Mitchell’s resentencing: David Scott (the victim’s brother), Bruce Scott (the victim’s father),
and Ann Scott (the victim’s mother). Before
David Scott’s testimony, a Cargle hearing was
held regarding the State’s victim impact evidence.159 The State announced that David
would serve as the family spokesperson, elicited testimony from Ann Scott confirming the
family’s desire to have him serve as their “family representative,” and then swore David in as
the family’s designee. Defense counsel raised
1737
numerous objections to the proposed testimony, noting particularly, that if David was going
to testify as the family representative, other
family members should be precluded from
testifying.160
¶72 David Scott’s testimony recounted memories of events and adventures with his sister.
He described some of her activities as a college
student at the University of Oklahoma, including playing in the marching band, and how he
had planned to share a home with her when he
entered college there. He also testified about
how his life had been affected by her death and
the impact of her absence from the family. He
concluded by describing the effect of his sister’s death upon their parents.161 When the
State later offered the testimony of Bruce and
Ann Scott, Mitchell re-raised his objection that
these witnesses should not be allowed to testify, since David Scott had already testified as
the family representative. The trial court
overruled the objection.162
¶73 In Lott v. State,163 this Court recently
addressed the language of 22 O.S.2001, §984.1,
which governs who may present victim impact
evidence at trial. We determined that such evidence can be presented only by: (1) the victim,
(2) members of the victim’s immediate family,
or (3) someone designated by the victim or the
victim’s family as the representative of the victim or the family.164 After examining the language of §984.1, we concluded: “The listing in
the disjunctive of the persons who may give
victim impact evidence indicates the Legislature’s intent to make these three categories of
victim impact witnesses mutually exclusive.”165
Hence it is error to allow a witness to testify as
a representative of the victim’s family and then
also allow members of the victim’s family to
testify on their own behalf. As we noted in Lott,
“The purpose behind a family designee is to
give a voice to family members unable to
testify in court.”166
¶74 Thus the trial court erred in allowing
David Scott to testify as the representative for
the Scott family, and then also allowing Bruce
and Ann Scott to testify separately. While each
of these three persons was otherwise eligible to
testify, about the impact of Elaine Scott’s death
on their individual lives, it was error to allow
the testimony of other family members after
David Scott testified as the family’s designee.
The impact of this error will be addressed
within Proposition XVI.
1738
¶75 Third, we decline to find that victim
impact evidence must be presented in a particular order in relation to the other evidence in
the State’s sentencing case. The trial court
properly determined that the State had presented adequate evidence of at least one aggravating circumstance before allowing the presentation of any victim impact evidence. Our
law does not further restrict the State in its
choices regarding how to order the presentation of sentencing evidence.167 Our jury instructions clearly define the proper role of victim
impact evidence in the sentencing process and
distinguish this role from that of aggravating
circumstances. Hence this portion of Mitchell’s
claim is rejected.
¶76 Fourth, we find no need to reconsider
our established jurisprudence that victim
impact evidence does not serve as an
improper “super-aggravator.168
¶77 Fifth, Mitchell argues that the victim
impact testimony given in his case was
improper, as it focused almost entirely on the
emotional aspects of the victim’s loss, including describing her childhood. We have repeatedly noted the constitutional risk of focusing
too much on such evidence.169 Upon reviewing
David Scott’s testimony, we find that, standing
alone, it did not violate due process or render
Mitchell’s sentencing unfair or unreliable. We
have already concluded that Bruce and Ann
Scott should not have been allowed to testify,
since David Scott testified as the family’s
designee. We note that Ann Scott’s testimony
was more emotional than that of Bruce Scott.170
We will consider the impact of this improperly
admitted testimony in Proposition XVI.
¶78 And finally, we find no error in the victim impact jury instruction used in Mitchell’s
case. This instruction was promulgated by this
Court in Cargle.171 Mitchell challenges the portion of the instruction describing victim impact
evidence as “intended to remind you as the
sentencer that just as the defendant should be
considered as an individual, so too the victim
is an individual whose death may represent a
unique loss to society and the family.” This
language arises directly from the Supreme
Court’s decision in Payne v. Tennessee.172
Mitchell argues that the reference to “loss to
society” is improper under Oklahoma law,
which limits victim impact evidence to the
effect of the victim’s death on “immediate
family members.”173
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¶79 As discussed earlier, Oklahoma law does
strictly limit who can present victim impact evidence, i.e., the victim or members of the victim’s immediate family or a representative of
the victim or the family.174 Oklahoma law also
constrains the content of such testimony,
through our statutes and our caselaw interpreting these statues and relevant U.S.
Supreme Court decisions. Yet nothing within
this governing authority prohibits evidence
about how the victim’s death represents a loss
to society, so long as this evidence is otherwise
appropriate. We recognize, as did the Payne
Court, that a capital sentencing should not be
focused upon the comparative “worth” to society of the victim whose life was taken.175 Nevertheless, we also recognize that providing
even a brief “glimpse” of the life that the
defendant extinguished will often involve evidence about what kind of person the victim
was — including evidence suggesting the victim’s unique role in and contributions to society.176 Similarly, a family member’s testimony
about the impact of a victim’s death on that
individual may also tend to suggest the
victim’s special role in society generally.177
¶82 In Proposition XI, Mitchell challenges
the refusal of the trial judge, the Honorable
Susan P. Caswell, to recuse from his case.182 On
January 24, 2002, defense counsel made an in
camera oral request that Judge Caswell recuse.
At a subsequent hearing, on February 4, 2002,
Judge Caswell informed the parties that she
had investigated her personal involvement in
Mitchell’s original trial and found that she had
no contact with the handling of that case. On
the other hand, Judge Caswell acknowledged
that she was “friends with Judy Busch” and
that they had attended parties in each other’s
homes. She also disclosed that she had attended the wedding of Judy Busch’s daughter to
the victim’s brother.183 Judge Caswell noted
that she did not believe that this fact, “in and of
itself,” was grounds for her recusal, but agreed
to take up the matter after Mitchell filed a formal motion to recuse.
¶80 While such evidence must be carefully
evaluated under our existing standards, victim
impact evidence suggesting that a particular
victim was a uniquely valuable member of his
or her community and our society is not per se
inadmissible in a capital sentencing proceeding. Furthermore, we conclude that the single
reference to the “loss to society” within our
uniform jury instruction is constitutional and
is also appropriate under Oklahoma law.
Hence this portion of Mitchell’s victim impact
claim is rejected.
¶83 On February 19, 2002, defense counsel
filed a motion seeking Judge Caswell’s recusal
from Mitchell’s resentencing.184 A hearing was
held on the motion on March 6, 2002. During
this hearing Judge Caswell again emphasized
(after even further investigation) that she had
no involvement “whatsoever” with Mitchell’s
original prosecution. She noted that the sex
crimes division had not handled the case and
that this Court had allowed her to preside over
other criminal cases, despite her campaign literature.185 She also downplayed the extent of
her “acquaintanceship” with Judy Busch, noting that they did not go to lunch or call each
other regularly.186 Judge Caswell concluded
that none of the reasons cited by Mitchell
required her recusal, and that she would not
recuse.
¶81 In Proposition X, Mitchell argues that
under Ring v. Arizona,178 his jury should have
been instructed that it could only impose the
death penalty if it found that the aggravating
circumstance(s) in his case outweighed the
mitigating circumstances “beyond a reasonable doubt.”179 Mitchell argues that under 21
O.S.2001, §701.11, the jury’s finding that any
aggravating circumstances in the case “outweigh” any mitigating circumstances — like
the jury’s finding that one or more aggravating
circumstances exist — must be made “beyond
a reasonable doubt.”180 Mitchell preserved this
claim in the trial court. Nevertheless, we rejected this claim in Torres v. State,181 and we decline
to revisit the issue here.
¶84 Although Mitchell now challenges Judge
Caswell’s failure to recuse, he did not challenge this failure at the proper time or in the
proper manner. Rule 15 of the Rules for District
Courts of Oklahoma establishes the procedure
for pursuing a disqualification motion.187
Under Rule 15, a party whose motion to disqualify a judge is denied can request a “rehearing” on this motion with the chief judge of
the county in which the case is pending.188 If
the chief judge of the county likewise denies
the moving party’s request to disqualify the
assigned judge, the moving party (in a
criminal case) can pursue a mandamus action
in this Court to have the assigned judge
disqualified.189
Vol. 77 — No. 17 — 6/10/2006
1739
¶85 Mitchell did not seek a rehearing with
the chief judge of Oklahoma County; nor did
he pursue the matter in this Court via a mandamus action. In fact, the record in this case
reveals that, on March 15, 2002, at a status conference hearing, Mitchell’s counsel informed
Judge Caswell that they had decided to “abandon” their recusal motion. Although the briefs
of both parties to this case fail to address (or
even note) Mitchell’s decision not to pursue his
disqualification claim under Rule 15, this
Court cannot ignore this choice.
recusal issue. This Court notes that the record
in this case contains significant and disturbing
evidence of bias on the part of the trial court.199
We address the significance of this evidence in
our fashioning of relief in this case.
¶86 The required method for challenging the
refusal of a trial judge to disqualify is well
established in this State, as is the effect of failing to follow this protocol.190 In Welch v. State,191
we noted that “‘the right to preclude a disqualified judge from trial is a personal privilege which can be waived’ by the failure to
strictly comply with the proper procedure for
seeking the disqualification of the trial
judge.”192 We conclude that Mitchell has
waived the right to pursue his claim that Judge
Caswell should have recused from his resentencing, by failing to properly pursue this
claim.193
¶90 During direct examination Dr. Saint
Martin contrasted the extent to which Mitchell
accepted responsibility for the murder of Scott
during a 1997 interview (when Mitchell
blamed everything on “C-Ray”) with his
acceptance of responsibility during an interview conducted in 2002 (in which Mitchell
admitted that he alone killed Scott). On crossexamination, the prosecutor elicited testimony
from Dr. Saint Martin indicating that in 1997,
Mitchell’s perspective was that he wanted to
be either executed or released; yet by 2002,
Mitchell had come to accept that he would be
imprisoned for the rest of his life, but he did
not want to be executed. This questioning was
not challenged.
¶87 We note, however, that while a defendant can waive his right to preclude a disqualified judge from hearing his case, that defendant does not thereby waive the right to have
his trial conducted in a fair and impartial manner. Whether or not a defendant can or does
establish before trial that a particular judge is so
likely to be biased against him or her that the
judge should recuse or be disqualified, the
defendant is always entitled to a trial that is, in
fact, fairly conducted.194 As we noted in Fitzgerald v. State,195 “The Oklahoma Constitution
guarantees a defendant a right to a fair, impartial trial not tainted by the personal bias or
prejudice of the trial court.”196 Hence whether
or not Judge Caswell should have recused
when she was asked to do so, she was obligated to conduct Mitchell’s resentencing in a fair
and impartial manner.197
¶88 Within his claim challenging Judge
Caswell’s refusal to disqualify, Mitchell lists
various examples of “bias” in the trial court’s
handling of his resentencing. The cited examples all overlap with other substantive claims
raised on appeal, which are addressed separately within the relevant propositions.198
Mitchell does not, however, raise a separate
claim of trial court bias, beyond the waived
1740
¶89 In Proposition XII, Mitchell challenges
two references to his original death sentence,
which occurred during the State’s cross-examination of Dr. Manuel Saint Martin.200 Mitchell
alleges that the references were deliberate
prosecutorial misconduct and that they rendered his death sentence unreliable.
¶91 Within further questioning about the
1997 interview, however, the following
occurred:
PROSECUTOR: And he made a point of
telling you, I’m not going to be able to give
up C-Ray because of my fear on behalf of
my family?
DR. SAINT MARTIN: Yes.
PROSECUTOR: So he wants to make himself look good, I’m willing to take the heat,
stay on death row —
At this point, even before an objection was
raised, the prosecutor stopped his questioning,
asked to approach, and acknowledged that he
had improperly referred to Mitchell’s prior
death sentence.201 Defense counsel moved for a
mistrial, arguing that an admonishment was
inadequate to “unring that bill,” and that the
reference to Mitchell’s previous death sentence
would diminish the jury’s sense of responsibility regarding its sentencing decision.
¶92 The trial court agreed that the reference
to “stay[ing] on death row” was improper and
potentially necessitated a mistrial. Although
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the court described the reference as “certainly
inadvertent,” the court asked the parties to further research (overnight) whether a mistrial
was necessary and admonished the jury to
“disregard the last remark of counsel.” Later
— after the State completed its extensive crossexamination, defense counsel conducted redirect examination, and the State began recrossexamination — Dr. Saint Martin himself
referred to Mitchell’s time on death row.202
Once again, defense counsel’s motion for a
mistrial was denied (to be further addressed
the next day), and the jury was admonished to
“disregard the last remark of the witness.”
¶93 An extensive mistrial hearing was conducted the next morning, before any further
testimony. At the conclusion of this hearing,
the trial court ruled that although the references to Mitchell’s former death sentence were
improper, it did not violate due process or the
Eighth Amendment to allow Mitchell’s
resentencing trial to continue.
¶94 Upon reviewing the entirety of the prosecutor’s questioning of Dr. Saint Martin, this
Court finds no clear error in the trial court’s
determination that the references to Mitchell’s
prior death sentence were not the result of
prosecutorial misconduct. The record supports
the court’s finding that these references were
neither purposefully made nor deliberately
elicited by the State. Furthermore, this Court
notes that the references were indirect, and
that many jurors might be unaware that a person can only be “on death row,” if he or she has
already been sentenced to death.203 The jury
instructions clearly informed Mitchell’s jurors
that it was their responsibility to determine his
sentence; and none of the challenged remarks
did anything to lessen the jury’s sense of
responsibility in this regard. Nothing in the
authorities cited by Mitchell required that the
trial court grant a mistrial in this case.204 This
claim is rejected accordingly.
¶95 In Proposition XIII, Mitchell raises
twelve separate allegations of prosecutorial
misconduct during his resentencing. Some of
his allegations are not supported by the record
in this case.205 Some of these claims are not adequately developed, and others were not properly preserved at trial.206 In addition, some of
the challenged prosecutorial actions or
remarks have already been addressed.207
Although our review of the record in this case
reveals a substantial amount of what can fairly
Vol. 77 — No. 17 — 6/10/2006
be described as “prosecutorial misconduct” of
one sort or another, we conclude that only one
of the specific claims raised by Mitchell on
appeal merits separate discussion herein.208
¶96 Mitchell asserts that during his resentencing the prosecutor engaged in highly prejudicial and unprofessional conduct, including
pointing and yelling directly at the defendant.
Although such claims are difficult to fully evaluate on appeal — as we have only transcripts
and not videotapes of what occurred — we are
troubled by both the documented behavior of
the prosecutor and the trial court’s response to
that behavior.
¶97 The challenged conduct apparently
began during voir dire. During a bench conference on another objection, defense counsel
noted that she objected to the prosecutor’s
behavior toward Mitchell, in particular, pointing at him and speaking angrily to him.209 The
trial court responded: “You show me some
law, you show me some law that says you cannot point at a defendant.” Defense counsel
then argued: “It’s prejudicial and it allows him
by conduct to be asserting his personal opinion
about how he feels about our client.” Without
addressing this argument or the propriety of
the prosecutor’s behavior, the trial court summarily overruled the objection and allowed the
prosecutor to continue.
¶98 During his final closing argument, the
prosecutor again directly confronted the
defendant, as he encouraged the jurors to send
Mitchell a message by their verdict.210 At a
bench conference, defense counsel asserted:
Your Honor, I object. I would like the
record to reflect that Mr. Wintory has
walked over to counsel table and is pointing at our client and he’s talking directly to
our client, and I believe that’s inappropriate. It is akin to, by conduct, him expressing his personal opinion, he’s showing his
dislike for our client. It’s prejudicial. It’s
more prejudicial than probative. It’s violative of due process. It’s not fair.
The trial court responded: “It’s his closing
argument. It’s overruled.”211
¶99 The prosecutor then continued with his
argument about what the jury could say to
Mitchell through its verdict, and apparently
continued to yell and point directly at Mitchell
as he did so.
1741
PROSECUTOR: So what you all can do
together is right to him, right to him,
you’re guilty of murder, you killed her in a
way that was especially heinous, atrocious,
and cruel. She consciously suffered. She
suffered from when you attacked her near
the chair, while she ran down the hallway,
while she ran for the phone, while she
slammed the door, she suffered when you
grabbed her and ripped the phone from
her hands, she suffered when you stripped
her clothes from her, she suffered when
you stripped her earring from her, she suffered when you forced her on the floor, she
suffered when you sexually assaulted her,
she suffered after you —
DEFENSE COUNSEL: Your Honor, I
object.
THE COURT: Overruled.
PROSECUTOR: She suffered after you
sexually assaulted her. You can tell him
this with your verdict, that she suffered
when you took the golf club to her, she suffered when you took your fist to her, she
suffered when you rolled her over and you
stuck the compass in her neck one, two,
three, four, five, six times, she suffered
when you broke the golf club over her
head, she suffered while she laid there
pleading and screaming and crying.
DEFENSE COUNSEL: Your Honor,
may I approach?
THE COURT: No. Your objection is
overruled.
DEFENSE COUNSEL: I need to make a
record.
THE COURT: This is closing argument.
DEFENSE COUNSEL: I need to make a
record.
THE COURT: Approach.
(The following was said at the bench:)
THE COURT: Counsel, what you’re
doing is interrupting the flow. I have ruled
on this objection three times.
DEFENSE COUNSEL: I would like the
record to reflect he is yelling and pointing
at our client.
THE COURT: This is closing argument.
I know of no cases that you cannot point at
1742
a defendant, nor do I know of no cases that
you cannot raise your voice. This is closing
argument. Your objection is overruled.
DEFENSE COUNSEL: Move for a mistrial.
THE COURT: Overruled.
The trial court then told the prosecutor that he
could proceed, and he did.212 The prosecutor
concluded by telling the jury that together
their verdict could tell the defendant: “Alfred
Brian Mitchell, you’re sentenced to death.
You’re not entitled to mercy.”213
¶100 Even the plain paper pages by which
this Court obtains its limited view of this scene
cannot fully silence or obscure the emotional
crescendo with which this proceeding concluded. Neither the prosecutor nor the trial
court questioned defense counsel’s assertions
that the prosecutor was standing immediately
in front of the defendant, yelling and pointing
at him, as he addressed him directly. And this
Court has little doubt that these theatrics continued, perhaps increasing in intensity, each
time the trial court refused to limit or prevent
them. Despite the bench conferences, the jury
could not have missed the fact that defense
counsel was objecting to the confrontational
and disrespectful way the prosecutor was
addressing the defendant, or the fact that the
trial court was adamantly allowing, if not
condoning, this behavior.
¶101 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.214 There can be
little doubt that the content and presentation of
this closing argument was carefully calculated
to inflame the passions and prejudices of
Mitchell’s jury.215 The prosecutor’s conduct
allowed him — perhaps more forcefully than
words alone could do — to express the utter
contempt and disdain that he personally felt
toward the defendant and his crime. This
Court concludes that prosecutors should not
be allowed to do through their actions and
demeanor what we have expressly forbidden
them to do with their words, namely, assert
their personal opinion about the defendant or
the crime.216 While we continue to recognize
the “liberal freedom of speech” that is appropriate to closing argument,217 we also recognize
that this freedom, like most, remains con-
Vol. 77 — No. 17 — 6/10/2006
strained by the rights of others, including the
right to due process and to a reliable capital
sentencing.
¶102 Perhaps even more disturbing than the
behavior of the prosecutor is the trial court’s
repeated refusal to in any way constrain or
condemn this behavior. The trial court’s stance
was, essentially, that the court would allow the
State to do as it willed unless defense counsel
could produce a case, on the spot, specifically
forbidding the challenged action.218 This is not
the proper role for a trial court judge. Trial
judges are responsible for protecting and
upholding the honor, dignity, and integrity of
the proceedings held before them.219 They are
not powerless to control the bad behavior of
the parties and attorneys who come before
them; nor must they await a specific ruling
from an appellate court in order to find a particular behavior improper.220 The total failure to
constrain this prosecutor, combined with the
obvious annoyance displayed by the court that
defense counsel was “interrupting the flow” of
the State’s argument, suggests that the trial
judge may have forgotten, at least momentarily, where she was sitting and what she was
wearing.
¶103 This Court finds that the prosecutor in
this case committed serious and potentially
prejudicial misconduct. Although the specific
impact of such conduct is difficult to gauge, we
evaluate the significance of this misconduct
within our discussion of Mitchell’s cumulative
error claim in Proposition XVI. We further find
that the trial court’s repeated refusal to condemn or ameliorate this misconduct suggests a
disturbing lack of even-handedness that,
though not properly raised as an independent
claim of judicial bias, can be considered as we
determine the appropriate remedy for the
numerous other errors in this case.
¶104 In Proposition XIV, Mitchell argues that
the “heinous, atrocious, or cruel” aggravating
circumstance is “unconstitutionally vague and
applied in an overbroad manner.” We have
repeatedly rejected the claim that this aggravator, as narrowed by this Court, is unconstitutionally vague.221 In addition, we have recently
addressed the argument that this aggravator is
“overbroad as applied” and explained that an
aggravating circumstance does not become
“overbroad” based upon the manner it is
applied to particular cases.222
Vol. 77 — No. 17 — 6/10/2006
¶105 Mitchell further argues that certain evidence was improperly admitted during his
trial, namely, certain aspects of Tom Bevel’s
testimony (as discussed in Proposition VII)
and at least some of the photographs and the
crime scene video (discussed in Proposition
VI). Mitchell asserts that absent the improperly admitted evidence, there is insufficient evidence to support the “heinous, atrocious, or
cruel” aggravator. We have already addressed
the propriety of the challenged evidence. We
conclude that even without any of the improperly admitted evidence, there can be no doubt
that the properly admitted evidence was more
than sufficient to support the “heinous, atrocious, or cruel” aggravator in this case. We further find that even if Mitchell’s jury had not
been presented with any of the improperly
admitted or cumulative evidence, there is not a
reasonable probability that his jury would
have failed to find that this aggravator
applied. The evidence supporting the
“heinous, atrocious, or cruel” aggravator in
this case is simply compelling.223
¶106 In Proposition XV, Mitchell asks this
Court to reconsider its prior rulings on eight
different issues, noting that he is raising these
claims in order to preserve them for the purpose of further review in any subsequent proceedings. We note, however, that some of the
claims raised are not actually relevant to
Mitchell’s case.224 Regarding the remaining
clams, we acknowledge that Mitchell has
raised the claims listed in his brief, but decline
to revisit them here.
¶107 Finally, in Proposition XVI, Mitchell
asserts that even if none of his individual
claims merits relief, the cumulative effect of
the errors committed during his resentencing
necessitates that his death sentence be either
reversed or modified. This Court has repeatedly recognized that when there are multiple
errors or irregularities during a trial, reversal
will be required if the “cumulative effect” was
to deny the defendant a fair trial.225 This same
analysis applies to Mitchell’s resentencing.
¶108 This Court has found serious error in
numerous aspects of Mitchell’s resentencing.
We have found that the trial court abused its
discretion in allowing the State to argue that
Mitchell killed Scott in order to avoid arrest or
prosecution for “raping” her — and that
“rape” cannot serve as the predicate crime for
the avoid arrest aggravating circumstance in
1743
this case. In addition, we have found that the
State’s notice of its intent to rely upon armed
robbery and larceny as predicate crimes was
entirely inadequate, and that the trial court
abused its discretion in allowing the State to do
so over defense objection. Hence we have concluded that the avoid arrest aggravating circumstance must be struck down in the current
case.226
¶109 Even beyond this aggravating circumstance, this Court has concluded that the trial
court abused its discretion in denying defense
counsel any opportunity to question prospective jurors who expressed reservations about
the death penalty — particularly in light of the
inconsistent approach taken by the court
regarding jurors who expressed reservations
about the “life” sentencing options. We have
found that the court abused its discretion by
failing to constrain the extent of graphic photograph and videotape evidence presented to
the jury. We have found that the trial court violated Mitchell’s constitutional right to present
mitigating character evidence, when it excluded letters and other written materials sent by
Mitchell to his younger brother. And we have
concluded that the court erred in allowing the
victim’s brother to testify as the “representative” of the victim’s family, and then also
allowing both of the victim’s parents to testify
as additional victim impact witnesses. In addition, this Court has found that the resentencing
prosecutor committed serious prosecutorial
misconduct, particularly during his final
closing argument, and that the trial court erred
in failing to prevent or ameliorate this
misconduct.227
¶110 In light of all these errors and irregularities, this Court concludes that it must reverse
Mitchell’s death sentence. Furthermore, in
light of the pervasive extent of these errors and
irregularities, as well as the evidence suggesting significant trial court bias in the handling
of Mitchell’s resentencing, we decline to
reweigh the remaining valid aggravator in this
case with the mitigating evidence that is in the
record. Although a capital jury certainly could
choose to sentence Mitchell to death even after
a properly conducted resentencing, and even
after receiving the mitigating character evidence that was improperly excluded in this
one, we cannot say with adequate certainty
that it would. And we find that an actual jury,
not this Court, should make this call.228
1744
¶111 Despite the horror of Mitchell’s crimes,
and the fact that this case has already gone on
for fifteen years, we simply cannot allow
Mitchell’s current death sentence to stand.
Because there is a reasonable probability of a
different result in a properly conducted capital
sentencing, we find that Mitchell is entitled to
receive such a resentencing.229 Furthermore,
because of the substantial evidence of trial
court bias contained in the record, we order
that a new judge shall be assigned to this case,
to preside over any future proceedings.
¶112 In Proposition XVII, Mitchell argues
that his death sentence should be vacated, as
part of this Court’s mandatory sentence
review. The overturning of Mitchell’s death
sentence by this Court renders this proposition
moot.
DECISION
¶113 For the reasons discussed in this opinion, the death sentence of Alfred Brian Mitchell
is REVERSED, and this case is REMANDED
to the District Court, where it shall be REASSIGNED to a new judge for RESENTENCING. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18
App. (2005), the MANDATE is ORDERED
issued upon the delivery and filing of this
decision.
AN APPEAL FROM THE DISTRICT
COURT OF OKLAHOMA COUNTY
THE HONORABLE SUSAN P. CASWELL,
DISTRICT JUDGE
APPEARANCES AT TRIAL
Gina Walker, Eugenia Bauman, Anythony
Sykes’ Assistant Public Defenders, Oklahoma
County P.D.’S Office, 611 County Office Building, 320 Robert S. Kerr Ave., Oklahoma City,
Oklahoma 73102, Attorneys For Defendant,
Richard Wintory, Joellyn McCormick, Assistant District Attorneys, Oklahoma County
District Attorneys’ Office, 505 County Office
Building, 320 Robert S. Kerr Ave., Oklahoma
City, Oklahoma 73102, Attorneys For State.
APPEARANCES ON APPEAL
Andrea Diglio Miller, Assistant Public
Defender, Oklahoma County P.D.’S Office, 611
County Office Building, 320 Robert S. Kerr
Ave., Oklahoma City, Oklahoma 73102,
Attorneys For Appellant,
Vol. 77 — No. 17 — 6/10/2006
W.A. Drew Edmondson, Attorney General of
Oklahoma, Jennifer J. Dickson, Assistant Attorney General, 112 State Capitol Building, Oklahoma City, Oklahoma 73105, Attorneys For
Appellee.
OPINION BY: CHAPEL, P. J.
LUMPKIN, V.P.J.: CONCUR IN RESULTS
C. JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
S. TAYLOR, S.J. (sitting by designation in lieu
of A. Johnson, J.):CONCUR IN RESULTS
A. JOHNSON, J.: RECUSE
1. See 21 O.S.1991, §701.12(4), (5) and (7), respectively.
2. Mitchell was sentenced to imprisonment for 30 years for the robbery count, 20 years for the larceny count, 100 years for the rape count,
and 20 years for the sodomy count, with the sentences to be served
consecutively.
3. See Mitchell v. State, 1994 OK CR 70, 884 P.2d 1186.
4. See Mitchell v. Oklahoma, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50
(1995).
5. See Mitchell v. State, 1997 OK CR 9, 934 P.2d 346.
6. See Mitchell v. Oklahoma, 521 U.S. 1108, 117 S.Ct. 2489, 138
L.Ed.2d 996 (1997).
7. See Mitchell v. Ward, 150 F. Supp.2d 1194 (W.D. Okla. 1999).
8. 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
9. Mitchell’s Brady claims were not raised in this Court, on either
direct appeal or post-conviction.
10. This evidence and testimony are discussed in great detail in the
district court’s opinion. See Mitchell, 150 F. Supp.2d at 1221-30. In part,
Gilchrist’s testimony indicated that samples taken from vaginal and
anal swabs of the victim, and also a cutting from her panties, contained sperm that was “consistent” with Mitchell or at least “inconclusive” as to him. In fact, Gilchrist knew at the time of Mitchell’s original trial, based upon conversations with Special Agent Michael Vick
of the FBI’s DNA unit, (1) that the DNA recovered from the vaginal
swab was consistent only with Elaine Scott, the victim, (2) that the
DNA recovered from the victim’s panties was consistent only with
Phillip Taylor, Scott’s boyfriend, and (3) that no DNA profile was
obtained from the rectal swabs. Id. at 1224-25. Evidence developed at
the federal evidentiary hearing indicated that even Gilchrist’s own
testing excluded Mitchell as the donor of the samples she tested. Id. at
1227 n.48.
11. The court found that the State “labored extensively at trial to
obscure the true DNA test results,” and that the State’s closing argument regarding the DNA results was “absolutely untenable.” Id. at
1227.
12. Id. at 1230, 1263.
13. See Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001). The State
did not appeal the district court’s grant of relief on the rape and
sodomy convictions, id. at 1044 n.2, and the robbery and larceny convictions were not addressed in Mitchell’s habeas appeal. Id. at 1044 n.1.
14. Id. at 1065-66. The Tenth Circuit opinion noted that the misleading rape and sodomy evidence “impacted all three of the aggravating circumstances found by the jury.” Id. at 1065.
15. See 21 O.S.1991, §701.12(4) and (5), respectively. The jury rejected the third aggravating circumstance alleged, i.e., the “continuing
threat” aggravator. See 21 O.S.1991, §701.12(7).
16. Mitchell’s Petition in Error was filed in this Court on May 16,
2003. His brief was filed on February 25, 2004, and the State’s brief was
filed on October 15, 2004. Mitchell’s reply brief was filed on November 4, 2004. Oral argument was held on October 11, 2005.
17. See Mitchell, 1994 OK CR 70, ¶¶2-3, 884 P.2d at 1191-92.
18. Only seventeen days earlier, on December 21, 1990, Mitchell
had been released from the Lloyd Rader juvenile detention center,
where he had been held until his eighteenth birthday, for the rape of
eleven-year-old Maria Bustos.
19. Blood found on the doorjamb and an injury to Mitchell’s finger
indicate that Scott reached the innermost office and slammed
Mitchell’s finger in the door as she tried to pull it shut behind her. The
telephone was found on the desk, with the cord connecting it to the
wall jack removed.
Vol. 77 — No. 17 — 6/10/2006
20. Mitchell’s semen was discovered in a combing from Scott’s
pubic hair. This and other evidence suggesting that Mitchell committed a sexual crime against Scott are discussed infra.
21. See 21 O.S.1991, §701.12(5).
22. See, e.g., Scott v. State, 1995 OK CR 14, ¶32, 891 P.2d 1283, 1294
(“To support a finding of this aggravating circumstance there must be
a predicate crime, separate from the murder, for which the defendant
seeks to avoid arrest or prosecution.”), habeas relief granted on other
grounds in Scott v. Mullin, 303 F.3d 1222 (10th Cir. 2002); see also cases
listed in note 23. In Hawkins v. State, 1994 OK CR 83, ¶37, 891 P.2d 586,
596, we noted that the predicate offense must be “committed in close
proximity to the murder.”
23. See, e.g., Lott v. State, 2004 OK CR 27, ¶¶115-16, 98 P.3d 318, 348
(“To support a finding of this aggravating circumstance, the State must
prove the defendant killed in order to avoid arrest or prosecution. . . .
Furthermore, there must be a predicate crime, separate from the murder, for which the defendant seeks to avoid arrest or prosecution.”)
(internal citations omitted), cert. denied, __ U.S. __, 125 S.Ct. 1699, 161
L.Ed.2d 528 (2005); Williams v. State, 2001 OK CR 9, ¶83, 22 P.3d 702,
723 (same); Alverson v. State, 1999 OK CR 21, ¶75, 983 P.2d 498, 520
(listing “requirements” of avoid arrest aggravator as “(a) a predicate
crime existed, apart from the murder, from which the defendant
sought to avoid arrest/prosecution; and (b) the State presented evidence establishing the defendant’s intent to kill in order to avoid
arrest/prosecution”); LaFevers v. State, 1995 OK CR 26, ¶48, 897 P.2d
292, 311 (finding avoid arrest aggravator constitutional because it
“requires a predicate crime separate from the murder for which a
defendant seeks to avoid arrest,” and also “requires a determination of
the state of mind of the defendant”); see also Barnett v. State, 1993 OK
CR 26, ¶30, 853 P.2d 226, 233 (per curiam) (“This aggravating circumstance, by definition, requires that there be a predicate crime, separate
from the murder, for which the appellant seeks to avoid arrest or prosecution.”).
24. Lott, 2004 OK CR 27, ¶115, 98 P.3d at 348; LaFevers, 1995 OK CR
26, ¶48, 897 P.2d at 311.
25. See, e.g., McElmurry v. State, 2002 OK CR 40, 60 P.3d 4; Pickens v.
State, 2001 OK CR 3, 19 P.3d 866; Wackerly v. State, 2000 OK CR 15, 12
P.3d 1; Alverson, 1999 OK CR 21, 983 P.2d 498; see also Brown v. State,
1998 OK CR 77, 989 P.2d 913 (discussed infra).
26. See, e.g., Salazar v. State, 1998 OK CR 70, 973 P.2d 315; Patton v.
State, 1998 OK CR 66, 973 P.2d 270; Cleary v. State, 1997 OK CR 35, 942
P.2d 736.
27. See, e.g., Mollett v. State, 1997 OK CR 28, 939 P.2d 1.
28. See, e.g., Hawkins, 1994 OK CR 83, 891 P.2d 586.
29. In cases involving multiple victims, we have found that the initial murder can serve as the predicate crime supporting the avoid
arrest aggravator finding for the subsequent murder(s). See, e.g.,
Anderson v. State, 1999 OK CR 44, ¶46, 992 P.2d 409,422-23; Thornburg
v. State, 1999 OK CR 32, ¶40, 985 P.2d 1234, 1247-48; Hooper v. State,
1997 OK CR 64, ¶42, 947 P.2d 1090, 1106-07; DeLozier v. State, 1998 OK
CR 76, ¶38, 991 P.2d 22, 30; Smith v. State, 1996 OK CR 50, ¶48, 932 P.2d
521, 536.
30. See, e.g., DeRosa v. State, 2004 OK CR 19, ¶¶85-89, 89 P.3d 1124,
1153-54 (armed robbery), cert. denied, 543 U.S. 1063, 125 S.Ct. 889, 160
L.Ed.2d 793 (2005); Hammon v. State, 2000 OK CR 7, ¶35, 999 P.2d 1082,
1091-92 (armed robbery); Carter v. State, 1994 OK CR 49, ¶¶50-51, 879
P.2d 1234, 1250-51 (robbery).
31. See, e.g., Lott, 2004 OK CR 27, ¶116, 98 P.3d 318, 348 (completed
rapes as predicate crimes); Frederick v. State, 2001 OK CR 34, ¶¶116-17,
37 P.3d 908, 939-40 (theft/robbery as predicate crime); Scott, 1995 OK
CR 14, ¶¶32-33, 891 P.2d 1283, 1294-95 (robbery as predicate crime).
And if there is doubt about the occurrence of a separate crime, this
Court has reversed the avoid arrest aggravator. See, e.g., Williams, 2001
OK CR 9, ¶85, 22 P.3d 702, 723; Snow v. State, 1994 OK CR 39, ¶33, 876
P.2d 291, 299.
32. Although Mitchell was also convicted of armed robbery and
larceny of an automobile — and these convictions remain valid — the
State relied upon rape/sodomy as the avoid arrest aggravator’s predicate crime in Mitchell’s first trial.
33. See, e.g., Cleary v. State, 1997 OK CR 35, ¶68, 942 P.2d 736, 751
(plurality opinion).
34. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
35. In fact, the State did not even appeal the district’s court’s Bradybased decision in this regard.
36. Mitchell also filed a “Motion to Make Bill of Particulars More
Definite and Certain,” since the State did not file a new bill.
37. The State likewise failed to file any written response to clarify
what aggravating evidence it would rely on to support the aggravators alleged, until the day Mitchell’s resentencing began.
1745
38. During the hearing the prosecutor indicated that the State no
longer believed that Scott was anally sodomized and that no such evidence or argument would be presented in the resentencing.
39. 1998 OK CR 45, 968 P.2d 821.
40. Mitchell did not challenge or question the State’s right to argue
that some other crime, short of rape, had occurred or to rely upon such
other crime to support the avoid arrest aggravator.
41. The State never indicated that it would rely solely on its belief
that Scott was raped. Instead, the State always indicated that it should
be allowed to argue that either a rape or some “sexual assault” had
occurred, which was the reason that Mitchell killed Scott. The State
was unwilling to concede any limitation, however, on its right to argue
that a completed rape had occurred.
42. The prosecutor summarized the evidence suggestive of some
kind of sexual assault and stated, “we do not think it requires a great
leap of faith to draw the inference that penetration occurred.” The
prosecutor also stated: “[W]e do believe that the evidence that is left
before the court does support an inference that a sexual assault
occurred, either an attempted rape or we believe the evidence supports a rape with penetration and ejaculate left outside the vagina, as
often is the case in these assaults . . . .”
43. On the day Mitchell’s resentencing began, the State filed an
Amended Notice of Evidence in Aggravation to be Offered in Support
of Death Penalty. For the avoid arrest aggravator, the State indicated
that it would “prove that Elaine Scott was sexually assaulted by
Mitchell while she was still alive,” and that she “was murdered by the
defendant because she could have identified Mitchell as the man who
sexually assaulted her.” The State did not list any other crime(s) as
possible support for this aggravator. For the “heinous, atrocious, or
cruel” aggravator, the State alleged that it would prove that Mitchell
“raped, anally sodomized and then murdered Elaine Marie Scott by
beating her to death.” During a hearing just before trial began, however, the State again stated that it would make no reference to anal
sodomy during the trial, and it did not do so.
44. The State relied on essentially the same theory of the case as it
had in the original trial, i.e., that Mitchell “learned his lesson” from
sparing the life of Maria Bustos — the eleven-year-old girl whom
Mitchell raped when he was fifteen — and then being caught and punished for raping her.
45. During voir dire the prosecutor was allowed to argue, over
defense objection, that rapes often did not produce any definitive
injury to the victim, and then to question whether jurors would have
a hard time accepting that a rape had occurred, without such evidence
of trauma. For example, the prosecutor stated: “And there is a lot of
thought out there by a lot of folks that if a rape occurs, there’s going to
be physical — if you watch TV, you think every time a rape occurs or
a sexual assault occurred, that there will definitely be tearing of certain
tissues and other things like that. And are you — if you hear evidence
in the case that suggests in the overwhelming majority of sexual
assaults — .” At this point defense counsel objected, but the court
overruled the objection, and the prosecutor continued the line of argument/questioning, suggesting that the State would produce evidence
“to the effect that — in a very, very significant percentage of sexual
assault cases, particularly with younger victims, . . . there is no such
tearing.” The State’s voir dire references to rape were so prominent
that at least one juror apparently accepted the alleged rape as an established fact. See note 109 infra (quoting Prospective Juror E.M.).
46. After reading the Bill of Particulars, the prosecutor stated: “The
people who this defendant should — should respect, should embrace,
should protect are the very people who he victimizes, the people who
he — that’s the type of person who he rapes, that’s the type — .”
Defense counsel objected, but the objection was overruled.
47. Mitchell repeatedly re-raised his objection to the State being
allowed to argue or infer that he raped Scott; and the trial court consistently overruled the objection.
48. 1998 OK CR 45, 968 P.2d 821.
49. Cummings involved the double murder of the defendant’s sister, Judy Mayo, and her daughter, Melissa Moody. The State prosecuted Cummings (who had two wives) for both murders by presenting
evidence that his second wife (Juanita) shot Judy because Cummings
told her to, and that when he later returned home, Cummings and his
first wife (Sherry) disposed of Judy’s body and then took Melissa out
into the country, where Cummings alone killed her. Cummings was
also charged with child abuse, based upon Juanita’s testimony that
before Melissa was taken away, Cummings ordered his wives to
undress her and to remain in the room while he raped her. Id. at ¶¶713, 968 P.2d at 827-29. This count, however, was dismissed by the trial
court at the end of the first stage of trial. Id. at ¶1 n.1, 968 P.2d at 826
n.1.
1746
On appeal, this Court reversed the defendant’s conviction for
Judy’s murder, finding that both wives were accomplices to this crime,
whose testimony was not adequately corroborated by independent
evidence. Id. at ¶¶18-21, 968 P.2d at 829-30. We affirmed his conviction
for Melissa’s murder, however, finding that Juanita was not an accomplice to this murder and that her testimony adequately corroborated
that of Sherry. Id. at ¶¶22-23, 968 P.2d at 830-31.
50. Id. at ¶50, 968 P.2d at 836.
51. Id. (“Accordingly, this aggravating circumstance must fail.”).
52. The parties focus their Cummings analysis on the use of Melissa’s “rape” as the predicate crime — presumably because this case also
involves a possible rape. We conclude, however, that the Cummings
analysis of Judy’s murder as the predicate crime is even more instructive.
53. Judy’s body was found floating in a small pond, wrapped in a
quilt and mattress pad. She had gunshot wounds to her head and
neck. Melissa’s skeletal remains were not found until the following
month; an exact cause of death could not be determined. Id. at ¶4, 968
P.2d at 827.
54. See id. at ¶¶18-21, 968 P.2d at 829-30. Our affirming of the
defendant’s conviction for Melissa’s murder, upon finding that Juanita was not an accomplice to that crime, suggests that were it not for the
accomplice corroboration rule, we would have upheld his conviction
for Judy’s murder too. See id. at ¶¶22-24, 968 P.2d at 830-31; see also Pink
v. State, 2004 OK CR 37, ¶¶14-24, 104 P.3d 584, 590-93 (discussing and
applying accomplice corroboration rule).
55. All five judges that voted in Cummings agreed that the avoid
arrest aggravator had to be struck down, because neither the rape of
Melissa nor the murder of Judy were adequately established. See Cummings, 1998 OK CR 45, ¶50, 968 P.2d at 836; see also id. at ¶3, 968 P.2d at
839 (Lumpkin, J., concurring in result) (“I agree that the alleged rape,
a crime of which Appellant was acquitted, could not be used as the
predicate crime to support the aggravator of committing a murder for
the purpose of avoiding or preventing a lawful arrest or prosecution .
. . .”). Although one judge maintained that the rape evidence could
have been admissible to support the continuing threat aggravator (as
an “unadjudicated offense”), id., no judge questioned the majority
opinion’s predicate crime analysis.
56. The State’s reliance upon Hogan v. State, 1994 OK CR 41, 877
P.2d 1157, habeas relief granted on other grounds in Hogan v. Gibson, 197
F.3d 1297 (10th Cir. 1999), is entirely misplaced. Although the avoid
arrest aggravator was alleged in that case, it was rejected by the jury.
Id. at ¶33, 877 P.2d at 1164. Hence this Court did not discuss the
requirements of the avoid arrest aggravator in that decision. The language invoked by the State related only to the use of evidence to establish “motive” in the more general sense. See id. at ¶19, 877 P.2d at 1161.
57. See Mitchell, 150 F. Supp.2d at 1230; Mitchell, 262 F.3d at 106566.
58. We note that the federal district court did, in fact, find that the
legitimate evidence in the case is insufficient to support a rape conviction, and the federal circuit court came close to doing so. See 150 F.
Supp.2d at 1229-30 (“The jury did not receive a truthful representation
of the evidence on the rape and sodomy charges due to constitutional
violations by the State. It is therefore this Court’s opinion that the Winship standard could not be met if the jury had been given an accurate
picture of the facts.”) (after noting that In re Winship, 397 U.S. 358, 90
S.Ct. 1068, 25 L.Ed.2d 368 (1970), requires that crimes be proven
“beyond a reasonable doubt”); 262 F.3d at 1065 (“[T]here is at least a
reasonable probability that if the defense had been provided the withheld evidence, it would have succeeded in getting those charges dismissed prior to the trial.”).
59. The trial judge, perhaps due to her experience as a prosecutor
of sex crimes, stated that she believed the jury would draw the conclusion that Mitchell had raped Scott, based upon the evidence of his
semen in her pubic hair and her bruising. Her reference to the “preponderance” standard appears based upon a misreading of a separate
writing in Cummings, which discussed this standard in connection
with the continuing threat aggravator. See 1998 OK CR 45, ¶3, 968 P.2d
at 839 (Lumpkin, J., concurring in result).
It is true that this Court has held that, under certain circumstances,
the State can present evidence of “unadjudicated offenses” during a
capital sentencing, and that such offenses need only be proven by a
“preponderance” of the evidence. It should be emphasized, however,
that these holdings apply only to cases involving the continuing threat
aggravator, which, unlike the avoid arrest aggravator, does not require
a “predicate crime.” See, e.g., Johnson v. State, 1982 OK CR 37, ¶¶25-32,
665 P.2d 815, 821-23; Woodruff v. State, 1993 OK CR 7, ¶¶84-86, 846 P.2d
1124, 1143-44. Although prior criminal activity is relevant to both
aggravators, only the avoid arrest aggravator requires a finding that a
Vol. 77 — No. 17 — 6/10/2006
prior crime was actually committed, which in turn requires evidence
sufficient to establish that crime beyond a reasonable doubt.
60. The State conceded at oral argument that there is no evidence
of penetration in this case.
61. See 21 O.S.1991, §1111(A); 21 O.S.1991, §1113; Miller v. State, 82
P.2d 317, 322 (Okla. Crim. 1938) (“Penetration is necessary . . . to complete the crime of rape.”); Vaughn v. State, 1985 OK CR 29, ¶7, 697 P.2d
963, 966.
62. Maria Bustos testified that when Mitchell raped her, she basically “froze” and did not resist. The crime scene in this case leaves no
doubt about Scott’s active and determined resistance.
63. This Court’s findings in the original direct appeal of this case,
that the evidence was sufficient to support Mitchell’s convictions for
rape and sodomy, are obviously not res judicata in the current appeal,
since those findings were based upon Brady violations that the State
now admits, which were not even discovered until after the original
appeals in this Court.
64. This finding resolves the portion of Mitchell’s Proposition III
claim that alleges that because the evidence of rape was insufficient,
the State presented insufficient evidence to establish the avoid arrest
aggravator. The remainder of Proposition III is addressed infra.
65. Although the term “sexual assault” has a commonly understood meaning and is widely recognized as describing some kind of
sex-related crime, Oklahoma does not have a particular, statutorilyestablished crime of “sexual assault,” per se. Rather, the phrase is
understood to designate a class or category of various, separate, sexrelated crimes.
66. The current uniform jury instruction, which was used in
Mitchell’s trial, states as follows:
The State has alleged that “the murder was committed for
the purpose of avoiding or preventing a lawful arrest or
prosecution.” This aggravating circumstance is not established unless the State has proved beyond a reasonable doubt
that:
First, there was another crime separate and distinct from
the murder; and
Second, the defendant committed the murder with the
intent to avoid being arrested or prosecuted for that other
crime.
OUJI-CR 4-75 (emphasis added). Hence although Oklahoma juries are
already required to find, beyond a reasonable doubt, that there was
“another crime” separate from the murder (i.e., the predicate crime),
our uniform instructions do not require that the jury be told the elements of that other crime or that each of these elements must also be
proven beyond a reasonable doubt.
67. Personally, I would require that the avoid-arrest predicate
crime be a specific statutory crime and that the jury be required to find
each of the elements of that crime, beyond a reasonable doubt, at some
point during the capital trial. Although this Court has not previously
held that the predicate crime must be a statutory crime, we have never
affirmed the avoid arrest aggravator where the predicate crime relied
upon was something other than a statutorily-established crime, akin to
the “sexual assault” allegation in the current case. Furthermore,
requiring a more specific jury finding regarding the elements of the
predicate crime is consistent with the United States Supreme Court’s
emerging Apprendi/Ring jurisprudence. See Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v. Arizona, 536
U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); see also Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Schriro v.
Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d. 621 (2005);
Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.ED.2d 205
(2005).
The State asserts in its brief: “Although to prove the aggravating
circumstance of murder to avoid arrest, the State must prove a crime
separate and distinct from the murder, the State is not required to
prove each element of that crime, as it is not the crime for which the
defendant is being sentenced.” While it may make sense to a nonlawyer to talk about proving a “crime” without proving each element
of that crime, such talk does not make sense in the legal context, particularly on appellate review. In Oklahoma, all crimes are statutorily
established and defined. See 21 O.S.2001, §1 (“This chapter shall be
known as the penal code of the State of Oklahoma”); 21 O.S.2001, §2
(“No act or omission shall be deemed criminal or punishable except as
prescribed or authorized by this code. The words ‘this code’ as used in
the ‘penal code’ shall be construed to mean ‘Statutes of this State.’”).
Consequently, in order to establish that a “crime” has been committed
— whether the State is attempting to garner a conviction or establish
the “predicate crime” component of the avoid arrest aggravator — the
State should be required to establish each element of that crime
Vol. 77 — No. 17 — 6/10/2006
beyond a reasonable doubt. Furthermore, the jury should be required
to make a specific finding regarding what crime(s) constitute the predicate crime for which the defendant was attempting to avoid arrest or
prosecution at the time of the murder.
I recognize that this Court’s post-conviction opinion in Brown v.
State, 2003 OK CR 7, 67 P.3d 917, declined to find that Ring requires this
conclusion. Yet the context of that decision must be looked at carefully. In Brown, this Court reversed the defendant’s original jury conviction for armed robbery, in order to avoid a double jeopardy problem
in affirming his felony murder conviction based upon that same robbery. There was no doubt about the sufficiency of the evidence underlying the jury’s finding of armed robbery, which also served as the
predicate crime for the avoid arrest aggravator. Id. at ¶8, 67 P.3d at 919.
Hence we concluded that it would be “frivolous” to find that Ring
required that the same jury that had found Brown guilty of armed robbery in the first stage should have been required to again specifically
find, as part of its avoid-arrest aggravator analysis, that he had committed that same armed robbery. Id.
Mitchell’s claim is far from frivolous. In his case it is entirely
unclear what exact predicate crime the State was relying upon,
whether that predicate crime was supported by sufficient evidence,
what predicate crime the jury had in mind when it found the avoid
arrest aggravator, whether that predicate crime was supported by sufficient evidence, or whether the “predicate crime” relied upon was
even a crime at all. Thus Mitchell’s resentencing reveals that, in some
cases, a specific jury finding regarding the predicate crime is necessary
in order to comport with due process and the Eighth Amendment. I
would overturn Brown to the extent that it fails to recognize the necessity of this kind of jury fact-finding, in cases such as the current one.
I would find that in cases where the crime (or crimes) relied upon
as the avoid-arrest predicate crime is not found by the jury during the
guilt stage and in cases where more than one crime is alleged to constitute the predicate crime, the jury should be required to specifically
designate the predicate crime(s) upon which its finding of the avoid
arrest aggravator is based. Although the State could rely upon more
than one predicate crime, the jury should be required to unanimously
agree on at least one particular predicate crime, for which there is sufficient evidence to establish it beyond a reasonable doubt. I would also
require that the State provide notice of the specific predicate crime(s)
upon which it intends to rely, within its notice regarding aggravating
evidence. See 21 O.S.2001, §701.10(C). Such requirements would avoid
unnecessary confusion and uncertainty in future cases, ensure that
jurors understand and agree upon any finding of the avoid arrest
aggravator, and facilitate judicial review by this Court, including
mandatory sentence review, without unduly burdening either the parties or the jury.
68. See Separate Opinion, Lumpkin, J., ¶1. On the other hand, the
opinion’s assertion that the “prior violent felony” aggravator somehow overlaps with the avoid arrest aggravator, see id., is certainly
incorrect. The prior violent felony aggravator is directed at the problem of recidivism and looks at whether, at the time of the murder, the
killer already had violent felony convictions. It has nothing to do with
the killer’s motivation at the time of the murder, which we all agree is
at the heart of the avoid arrest aggravator.
69. Id. at ¶3.
70. The Separate Opinion states:
[U]nder the statutory language of this aggravator, a defendant
need only to have committed acts at the time which caused
him/her to believe could have led to his/her arrest or prosecution. A defendant is not required to be vested with the knowledge of a lawyer and be able to outline the elements of a crime
before the aggravator is applicable, only that he/she has committed an act that he/she thinks may cause him/her to be arrested or prosecuted. That is sufficient evidence to satisfy this aggravator.
Id. at ¶8.
71. See 21 O.S.1991, §701.12(5).
72. Although counsel for the State suggested at oral argument that
people are arrested “all the time” for things that are not crimes, it is
well established that in order for an arrest to be “lawful,” it must be
based upon probable cause to believe that the arrested person has
committed (or is committing) some particular crime. See generally United States v. Watson, 423 U.S. 411 (1975).
73. See supra notes 22 & 23 and accompanying text.
74. See id.
75. During an instruction conference prior to the State’s presentation of a rebuttal witness, the trial court noted that (at the State’s
request) it would instruct the jury that Mitchell had previously been
convicted of armed robbery and larceny of an automobile. Defense
counsel objected, noting that these convictions had not been previous-
1747
ly referenced in the trial. The State then announced that it would rely
upon these crimes to help support the avoid arrest aggravator.
Defense counsel vigorously objected, noting that there had been
absolutely no previous notice of this plan.
76. Throughout Mitchell’s trial, when defense counsel raised an
objection to something the prosecutors were doing or saying, the State
repeatedly took the position that unless counsel could invoke a particular case, on the spot, that specifically prohibited whatever was being
challenged, the prosecutors should be allowed to proceed as they
willed. And the trial court consistently accepted this argument — putting the burden on Mitchell to establish, with authority from this
Court, that the challenged action or argument was prohibited, rather
than simply evaluating the defense objection on its merits.
77. 21 O.S.2001, §701.10(C).
78. See, e.g., Littlejohn v. State, 2004 OK CR 6, ¶17, 85 P.3d 287, 295,
cert. denied, 543 U.S. 947, 125 S.Ct. 358, 160 L.Ed.2d 261 (2004); Black v.
State, 2001 OK CR 5, ¶92, 21 P.3d 1047, 1077; Johnson v. State, 1982 OK
CR 37, ¶36, 665 P.2d 815, 823.
79. Although the State requested that all of the evidence from the
first stage of Mitchell’s original trial be “incorporated” into his resentencing, the record does not suggest that Mitchell’s resentencing jury
actually received any evidence beyond what was formally presented
and admitted during the resentencing. The record before this Court
contains no transcripts or exhibits from the original trial (except those
exhibits that were actually reused during the resentencing), nor does it
suggest that the jury received any additional material. This Court
notes that the original first-stage evidence includes the improper testimony of Joyce Gilchrist, which, obviously, would not have been appropriate for the resentencing jury’s consideration.
80. During the original trial the State relied solely upon rape and
sodomy as the predicate crimes.
81. For example, that court wrote:
Sexual assault charges are by their nature highly inflammatory
and prejudicial. . . . [T]here is a qualitative difference in terms of
culpability between a defendant who rapes and sodomizes a victim and then kills her to silence her, and a defendant who kills in
a fit of rage. Had the rape and sodomy charges not been before
the jury, the state would have been unable to infuse the murder
with prior sexual abuse or to argue that Mr. Mitchell killed the
victim in a premeditated plan to avoid arrest and prosecution.
All of the highly charged arguments that we have recited would
not have been presented to the jury. Both the guilt and sentencing stages would necessarily have had an entirely different focus
and character.
Mitchell, 262 F.3d at 1065. In fact, the Tenth Circuit opinion appears to
accept at face value Mitchell’s story that he “merely” masturbated and
then ejaculated on Scott’s bloodied and battered nude body. See id. at
1063 (referring to what sentence jury would have given “had it known
Mr. Mitchell did not rape or sodomize the victim”); id. at 1063-65. This
Court strongly disagrees with the Tenth Circuit’s apparent expectation
that Mitchell’s resentencing should have been somehow sanitized of
any suggestion that he committed a sexual crime against Scott, or any
argument that he killed her in order to avoid being arrested or prosecuted for such a crime.
82. Again, this Court concludes that in the current case, a completed “rape” is not a legally permissible inference that the State can
argue.
83. See DeRosa v. State, 2004 OK CR 19, ¶85, 89 P.3d 1124, 1153, cert.
denied, 543 U.S. 1063, 125 S.Ct. 889, 160 L.Ed.2d 793 (2005).
84. 2001 OK CR 9, 22 P.3d 702.
85. 1993 OK CR 26, 853 P.2d 226 (per curiam). In Barnett, we concluded that where a “protracted assault and battery was the ultimate
cause of the victim’s death,” this assault and battery could not serve as
the predicate crime for the avoid arrest aggravator. Id. at ¶30, 853 P.2d
at 234.
86. 2001 OK CR 9, ¶85, 22 P.3d at 723.
87. Id.
88. It is also distinguishable from Barnett, which Mitchell does not
specifically address.
89. See Williams, 2001 OK CR 9, ¶¶2-8, 22 P.3d at 708-09. Attempted rape was not charged as a separate offense.
90. See Myers v. State, 2000 OK CR 25, ¶¶68-69, 17 P.3d 1021, 1036
(rape of victim sufficiently separate from murder to serve as avoidarrest predicate crime where “[t]he cause of death [asphyxiation]. . .
was separate from and not a direct result of the rape”); Mollett v. State,
1997 OK CR 28, ¶51, 939 P.2d 1, 13 (rape sufficiently separate to serve
as predicate crime where “[t]he evidence demonstrates Appellant
raped the victim then strangled and drowned her”); see also Lott v.
State, 2004 OK CR 27, ¶118, 98 P.3d 318, 348 (rapes of victims sufficiently separate to serve as predicate crimes, where “victims’ deaths
1748
were not the result of the rape,” and crime scene evidence “supports
the inference Appellant sat on the victims after the completion of the
rape and smothered them”), cert. denied, __ U.S. __, 125 S.Ct. 1699, 161
L.Ed.2d 528 (2005).
91. See, e.g., Myers, 2000 OK CR 25, ¶69, 17 P.3d at 1036; Mollett,
1997 OK CR 28, ¶50, 939 P.2d at 13; see also Lott, 2004 OK CR 27, ¶116,
98 P.3d 318, 348.
92. The challenged removals involve prospective jurors M.M., K.T.,
Z.S., B.K., A.A., and T.P. Although Mitchell asserts that some of these
excused jurors were minorities, he does not raise any race-based (or
Batson) claim. Hence we do not address this issue. Note: this Court will
refer to prospective jurors by their initials, out of respect for their interest in maintaining their privacy.
93. 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon, the Supreme Court held that it violates due process to exclude
an otherwise eligible prospective juror based solely upon that juror’s
opposition to the death penalty. Id. at 522-23, 88 S.Ct. at 1776-77. The
Court noted that “[t]he most that can be demanded of a venireman in
this regard is that he be willing to consider all of the penalties provided by state law . . . .” Id. at 522 n.21, 88 S.Ct. at 1777 n.21. In Wainwright
v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Court
clarified that the proper standard for assessing whether a prospective
juror can be legitimately excluded, based upon opposition to the death
penalty, is “whether the juror’s views would ‘prevent or substantially
impair the performance of his duties as a juror in accordance with his
instructions and his oath.’” Id. at 424, 105 S.Ct. at 852 (quoting Adams
v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)).
94. See, e.g., Banks v. State, 1985 OK CR 60, ¶10, 701 P.2d 418, 422
(“[T]he only legitimate concern is whether each jury member will consider the imposition of the death sentence, as one of the alternatives
provided by state law, should the case be appropriate for that punishment.”); Duvall v. State, 1991 OK CR 64, ¶24, 825 P.2d 621, 630 (“A
venireperson is only required to be willing to consider all the penalties
provided by law and that he not be irrevocably committed before the
trial has begun.”) (citing Banks); Mayes v. State, 1994 OK CR 44, ¶10,
887 P.2d 1288, 1297 (“The only legitimate concern being whether each
jury member will consider the imposition of the death sentence, as one
of the alternatives provided by state law, should the case be appropriate for that punishment.”) (citing Duvall). Under our Uniform Jury
Instructions, the trial court is instructed to ask each prospective capital juror the following question: “If you find the defendant guilty of
murder in the first degree, can you consider all three of these legal
punishments — death, imprisonment for life without parole, or
imprisonment for life — and impose the one warranted by the law and
evidence?”. See OUJI-CR 2d (Supp. 2000 & 2005) 1-5, Question 12,
Alternate 2 (for death penalty cases).
95. Cudjo v. State, 1996 OK CR 43, ¶10, 925 P.2d 895, 898 (citing
Mayes); Lewis v. State, 1998 OK CR 24, ¶8, 970 P.2d 1158, 1164 (quoting
Cudjo).
96. Hence this Court has repeatedly held that various versions of
the following question are not an appropriate standard for determining a capital juror’s eligibility: “In a case where the law and the evidence warrant, could you without doing violence to your conscience
‘agree to a verdict imposing’/’recommend’/’vote for’ the death penalty.” See, e.g., Cudjo, 1996 OK CR 43, ¶¶8-12, 925 P.2d at 898-99 (reversing death sentence where voir dire limited to this improper question);
Mayes, 1994 OK CR 44, ¶¶9-13, 887 P.2d at 1297-98 (question improper, but no reversal where excluded jurors unequivocal that they could
not consider death penalty and defendant failed to object to removals);
see also Lewis, 1998 OK CR 24, ¶8, 970 P.2d at 1164 (question improper);
Banks, 1985 OK CR 60, ¶¶9-10, 10, 701 P.2d at 422 (question improper).
We note that the current version of our uniform instruction reflects
this appropriate emphasis on a juror’s willingness to “consider” imposition of the death penalty (or other penalty to which the juror objects),
rather than the juror’s willingness to assert that there exist some facts
or circumstances under which he or she would actually “impose” the
death penalty (or other penalty to which the juror objects). See OUJICR 2d (Supp. 2005) 1-5, Question 12, Alternate 2 (for prospective juror
with reservations about death penalty) (“If you found beyond a reasonable doubt that the defendant was guilty of murder in the first
degree and if under the evidence, facts and circumstances of the case
the law would permit you to consider a sentence of death, are your
reservations about the penalty of death so strong that regardless of the
law, the facts and circumstances of the case, you would not consider the
imposition of the penalty of death?”) (emphasis added). The prior version of this uniform instruction, which was used in Mitchell’s resentencing, is quoted infra in note 100.
97. No challenge is raised to the trial court’s Brussels sprouts analogy. Nevertheless, as in the context of the “reasonable doubt” standard, we caution against attempts to define or further explain the
Vol. 77 — No. 17 — 6/10/2006
meaning of “consider” in this context. The word “consider” has a commonly understood meaning; and even good-faith attempts to clarify
its significance in this context invariably run the risk of shading its
meaning in a way that is misleading or erroneous.
98. Although the trial court noted the bad attitude that this particular juror apparently exhibited, the court’s stated reason for striking
him was his view on the death penalty, not his attitude.
99. The court stated: “I think he did [understand the questions]. I
made them in as simplest words as I could. I didn’t use the word
unequivocal, for example, fearing he might not understand it. So I
used very simple words and I think he understood. . . . I don’t know. I
made my ruling.” During later questioning, however, the trial court
repeatedly asked jurors who expressed reservations about the death
penalty if they were “unequivocal” in their beliefs, sometimes adding
an explanatory phrase about whether the juror might change his/her
mind and sometimes not. This Court agrees with the trial court’s initial approach of avoiding the word “unequivocal” when questioning
prospective jurors. Although this word is used by courts to evaluate
the strength of a juror’s beliefs in this arena, the term could confuse
many jurors.
100. This question was in accord with the uniform criminal
instruction in effect at the time of Mitchell’s resentencing. See OUJI-CR
2d (Supp. 2000) 1-5, Question 12, Alternate 2 (for prospective juror
with reservations about death penalty) (“If you found beyond a reasonable doubt that the defendant was guilty of murder in the first
degree and if under the evidence, facts and circumstances of the case
the law would permit you to consider a sentence of death, are your
reservations about the penalty of death so strong that regardless of the
law, the facts and circumstances of the case, you would not impose the
penalty of death?”).
101. When defense counsel pointed out that T.P. had earlier stated
that she could “envision a circumstance where she could impose the
death penalty” and also that she could consider it if she were a juror
in the case, the trial court responded: “No. That’s not how I recall it.
She was having difficulty about trying to decide whether or not she
can impose the death. She said she could not do it but she can envision
a set of circumstances where it would be appropriate, but that she
could not do it as I recall what she said.” In fact, the transcript reflects
that T.P. did indicate, at least three times, that she herself could consider and even impose the death penalty.
102. This Court finds that it can resolve Mitchell’s claim on appeal
without addressing the exclusion of the other four jurors, whose
answers were not as equivocal as those of M.M. and T.P. We note (as
did the trial court) that whether M.M. actually had misgivings about
the death penalty, or was simply being difficult, is unclear. The transcript suggests, however, that T.P. was quite sincere in her answers,
though she struggled to determine her own view.
103. See notes 96 and 100 supra (quoting the 2005 and 2000 versions
of OUJI-CR 2d 1-5, Question 12, Alternate 2 (for prospective juror with
reservations about death penalty)). M.M. was not asked either version
of this question.
104. See Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d
492 (1992) (reversing death sentence where defendant not allowed
adequate voir dire to determine capital juror eligibility). In Coleman v.
State, 1983 OK CR 138, 670 P.2d 596, this Court considered the exclusion of a juror who twice stated that he could not agree to a death
penalty verdict without “doing violence to [his] conscience.” The trial
court in that case, however, permitted further voir dire by defense
counsel, which established that despite the juror’s conscientious scruples against capital punishment, he would follow the court’s instructions and could assess the death penalty. This Court found that this
further questioning established the juror’s eligibility to serve, and
reversed the defendant’s capital murder conviction based upon the
improper removal of that juror. Id. at ¶¶14-19, 670 P.2d at 598-99.
Mitchell’s counsel was not given a parallel opportunity to rehabilitate
the struck jurors in his case, which might likewise have established
that one or more of them was, in fact, eligible to serve. Cf. Cudjo, 1996
OK CR 43, ¶¶8-12, 925 P.2d at 898-99 (vacating death sentence where
inadequate voir dire prevented this Court from determining whether
two jurors removed for reservations about death penalty were, in fact,
ineligible to serve).
105. See Morgan, 504 U.S. at 729, 112 S.Ct. at 2229-30 (juror who will
“automatically” vote for death penalty not eligible to serve on capital
jury).
106. The court then struck S.O. when he remained steadfast in his
commitment to consider only the death penalty for intentional murder.
107. The Court’s exchange with Prospective Juror B.W. was as follows:
Vol. 77 — No. 17 — 6/10/2006
THE COURT: Okay. There are three possible punishments in this
case, death, imprisonment for life without parole, or imprisonment for life. Can you consider, Mr. [B.W.], all three of these punishments and impose the one that you believe is warranted by
the law and the evidence?
PROSPECTIVE JUROR B.W.: No.
THE COURT: Okay. Which — what is your problem?
PROSPECTIVE JUROR B.W.: I believe if you take someone’s life,
then your life should be taken.
THE COURT: Okay. So are you telling me that you could not
consider a sentence of life?
PROSPECTIVE JUROR B.W.: I could not consider being on
parole or sentenced to life in jail, I could not consider those two.
THE COURT: Okay. The only punishment that you would consider is death, is that what you’re saying to me?
PROSPECTIVE JUROR B.W.: Yes, yes.
THE COURT: Okay. And are you telling me that under the evidence that you heard in this case and the law that I give you, that
you could not consider a sentence of life or life without the possibility of parole, that your reservations about those two punishments are so strong that you could not consider giving them?
PROSPECTIVE JUROR B.W.: Yes.
The trial court then struck B.W. for cause, without objection from
either side.
108. See Salazar v. State, 1996 OK CR 25, ¶¶20-29, 919 P.2d 1120,
1127-29 (prospective juror who will not consider option of life sentence
with parole not eligible to serve on capital jury).
109. On the second day of voir dire questioning, Prospective Juror
E.M. raised her hand, and the following colloquy occurred:
PROSPECTIVE JUROR E.M.: I know that I answered that I
would consider all three.
THE COURT: Yes, ma’am.
PROSPECTIVE JUROR E.M.: But in hearing so much of what has
happened and what’s gone on, there’s no way that I could consider life with the possibility of parole on what I’ve heard.
DEFENSE COUNSEL: Okay.
THE COURT: Ms. E.M., let me ask you just a couple of questions.
I can tell that you’re a little bit upset about this, and that’s okay.
But let’s just talk about this for a minute. Okay?
You haven’t heard any evidence yet. And —
PROSPECTIVE JUROR E.M.: No, but just the circumstances of
what the murder was, the brutality of it. I have a daughter. I can
relate to that. And there’s no way that I would let a murderer
that has raped and killed someone have the possibility of parole.
I wouldn’t necessarily say death or — I could go with death and
I could go with life imprisonment, but I cannot go with life with
the possibility of parole. I thought I could, but I can’t consider
that.
THE COURT: Okay. I’m trying to think of how to frame my
question. Just give me a second. Let me think.
The things that you have mentioned are factors that you
will ultimately be able to consider if there is evidence produced
in court as to determine punishment. All right?
PROSPECTIVE JUROR E.M.: Uh-huh
THE COURT: But those have yet to come into evidence before
you. Are you following me? I recognize what the lawyers have
said and what they have discussed here, but ultimately it may be
your decision, that based on certain factors that you hear in the
evidence, I believe — I suspect it will be everybody, I believe this
is appropriate punishment. All right? But at this point in time,
you have not heard that in the form of evidence.
PROSPECTIVE JUROR E.M.: Okay.
THE COURT: What you have to be able to do at this point is
without knowing what the evidence is going to be, other than
he’s guilty of murder, okay, and we know that that’s been
defined for you as the intentional taking of a human life, is can
you consider all of those punishments? What you have referred
to, and this is what concerns me and this is the difficulty that we
sometimes face in talking about these issues, so more specifically, is that some of these things that you have discussed are things
that might factor into your ultimate decision as to what you
believe the appropriate punishment is. But you’ve not yet heard
the evidence. So it might be fair for you to ultimately reach that
conclusion, that based on this evidence that I have heard, I
believe these things to have occurred, and following all of the
court’s instructions on that, this is the conclusion that I reach,
these are the proper punishments. What we have to know now
is can you look at all three punishments for the crime of Murder
in the First Degree and ultimately decide what is appropriate
based on what you hear in this courtroom?
1749
PROSPECTIVE JUROR E.M.: I can’t look at life with parole.
THE COURT: Despite the fact that you have not heard that —
heard that evidence now.
PROSPECTIVE JUROR E.M.: That’s correct.
THE COURT: Okay.
At this point — and without any equivocation by the juror — the trial
court offered the State an opportunity to further question E.M. The
prosecutor’s attempt to rehabilitate E.M. covers an additional eight
transcript pages — in which he suggest that perhaps the State will not
be able to prove any sexual assault afterall — leaving the juror thoroughly confused. Nevertheless, after defense counsel gave her a break
from questioning to further ponder the issue, E.M. steadfastly maintained that she would not consider sentencing Mitchell to life imprisonment — that she would “never consider that” — and was ultimately struck for cause, without objection from the State.
On the third day of voir dire, when Prospective Juror J.W. indicated that he could not consider life imprisonment with the possibility of parole, a parallel exchange began with him:
THE COURT: Are you telling me that under any set of facts or
circumstances that you could give not give life with the possibility of parole for Murder in the First Degree?
PROSPECTIVE JUROR J.W.: Not in the sense he took somebody’s life. Not knowing the facts, when I don’t have them, but
since he took somebody’s life and rape involved.
THE COURT: We’re not talking about that. Number one, that’s
not been established by any evidence. Okay? What I need to
know now before you know any of the facts of this case, and this
is the danger that we talked about yesterday of the lawyers talking about a possible sexual assault — they’ve got to prove it. You
may decide they didn’t prove it. . . .
After about another transcript page of the trial court attempting to
rehabilitate J.W., the lead prosecutor, apparently sensing the futility of
this effort, interrupted: “Your Honor, we have been through this
exhaustively with Ms. [E.M.] and with witnesses in front of him — or
jurors in front of him. He’s heard this explained. If we’re getting this
much equivocation, I don’t believe this is a juror who could be fair.”
The court then excused J.W.
110. During an objection to the prosecutor’s voir dire, defense
counsel noted that it “[j]ust seems like he’s making more of an opening statement than voir dire.” The court responded, “I don’t believe
that he is. That’s overruled.”
111. The crime scene pictures that show all or a portion of the victim’s body are State Exhibits 61-64, 67, 121, 122A, 125, 126, 138-140,
and 146-155.
112. The autopsy photographs are State Exhibits 77, 158-61, 161-A,
162, 163, 168, 169, 171-174.
113. Bevel’s testimony is further addressed infra in Proposition
VIII.
114. The prosecutor informed the court that exhibits numbered
above “81” were not admitted in Mitchell’s original trial.
115. Neither Tom Bevel nor the crime scene videotape played any
role in Mitchell’s original trial. Nevertheless, the trial court admitted
the videotape, stating that it “put things in perspective” and that the
State was “entitled to corroborate every witness who has testified and
to corroborate the expert witness on the order and method of the
killing.” Prior to the videotape the State had already presented extensive testimony describing the Pilot Center and the crime scene, as well
as a diagram and numerous pictures of the Center and the crime scene.
116. See Lockett v. State, 2002 OK CR 30, ¶19, 53 P.3d 418, 424 (test
for admissibility of photographs of homicide victim is whether probative value substantially outweighed by danger of unfair prejudice, and
review for abuse of discretion); see also Cannon v. State, 1998 OK CR 28,
¶52, 961 P.2d 838, 852 (crime scene videotapes reviewed under same
standard as photographs and “caution prosecutors to select their visual exhibits carefully and to refrain from admission of repetitive photographs or videotapes”).
117. See Littlejohn v. State, 2004 OK CR 6, ¶27, 85 P.3d 287, 297, cert.
denied, 543 U.S. 947, 125 S.Ct. 358, 160 L.Ed.2d 261 (2004). The State
essentially reenacted the testimony, with a prosecutor and a police
lieutenant playing Kibbey and Wilson, respectively.
118. Velma Kibbey, who lived across the street from the Pilot Center, testified that on the afternoon of the murder, she saw someone
who looked like Mitchell drive off in Scott’s car. Andre Wilson testified
that on that same afternoon, he saw Mitchell walking away from
Scott’s abandoned car. The State argues in its brief that the testimony
of these witnesses “had no bearing on the aggravating or mitigating
evidence presented in this case.”
119. We note that this testimony was part of a pattern of the State
being allowed to “reconvict” Mitchell, leading to an unnecessarily
long proceeding and potentially confusing jurors, who had been
1750
repeatedly told that that they must accept, as a given, that Mitchell
murdered Scott.
120. The testimony of Postoak was videotaped and transcribed
three months prior to Mitchell’s resentencing, since Postoak was in the
Army (Private First Class) and stationed at Fort Campbell, Kentucky,
having just returned from Afghanistan. Because Postoak was unavailable at the time of Mitchell’s resentencing — and the videotape “didn’t turn out” — his transcribed testimony was read to the jury. Copies
of the materials proffered by Mitchell appear in the record as Court’s
Exhibits 1-4, attached to the transcript of Postoak’s testimony.
121. Postoak testified that the proffered materials were not the
only ones he received from Mitchell, that he “can’t keep track of all of
them,” but just ones that he had saved, with special meaning.
122. The court agreed with the State’s argument that it would be
“unfair” to admit Mitchell’s letters to his brother, unless the State
could cross-examine Mitchell about them: “[Y]ou’re basically wanting
the jury, as I understand it, not only to see the effect that it had on his
brother, but to also say whatever, look, [Mitchell] encouraged [Postoak] to go to church, so he must be a God-fearing man, or whatever
you might say. I think it is unfair to allow that to go before a jury without the State being allowed to cross-examine the truthfulness of these
letters.” The State stipulated to the authenticity of the materials sent by
Mitchell and noted that it would not challenge their admissibility if
Mitchell chose to testify during the resentencing.
123. 1994 OK CR 65, ¶¶42-43, 887 P.2d 1333, 1346.
124. 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
125. 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).
126. 1994 OK CR 65, ¶43, 887 P.2d at 1346.
127. See Eddings, 455 U.S. at 110, 102 S.Ct. at 874 (“[W]e conclude
that the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”) (quoting Lockett, 438 U.S. at 604, 98 S.Ct. at
2964-65) (emphasis in originals); Chambers v. Mississippi, 410 U.S. 284,
302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) (“[T]he hearsay rule may
not be applied mechanistically to defeat the ends of justice.”); Green v.
Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam)
(vacating death sentence where trial court improperly excluded evidence under hearsay rule); Skipper v. South Carolina, 476 U.S. 1, 106
S.Ct. 1669, 90 L.Ed.2d 1 (1986) (reversing death sentence where trial
court excluded mitigating evidence of defendant’s good behavior
while incarcerated); McKoy v. North Carolina, 494 U.S. 433, 442, 110
S.Ct. 1227, 1233, 108 L.ED.2d 369, 1233 (1990) (“The Constitution
requires States to allow consideration of mitigating evidence in capital
cases. Any barrier to such consideration must therefore fall.”) (emphasis in original).
128. Court’s Exhibit I is an undated letter, which states as follows:
Michael,
Well, little bro I really don’t know what to tell you about
what’s going on around there. You’re being strong and
that’s what matters right now.
You should use what you see to make you more motivated about where you want to go in life. You see the bad
side of life, now aspire to be better than all of them and to
know what you don’t want to be in life. You are doing a
great job with your grades, you keep it up, okay? I’m
proud of you boy always have been and always will be.
Keep your eyes on your dreams and goals [?] and don’t let
anybody get you down. It’s probably just jealousy, that
you’re going to do what none of them have done. You just
ignore those idiots and do your thing. You watch out for
those younger kids and do what you can to help them
make it, always remember that momma would be very
proud of you.
Michael are you still going to church? If you are pray that
God helps you to be strong and for the rest of them pray
God changes their hearts for the better. Because through
Him all things are possible, if you only believe. Ask your
pastor to pray with you about this and have faith that He
will protect you and the other kids and He will bring the
others to their knees before Him. You have all the answers
you’ll ever need in Him, you only have to ask of Him what
you will.
Mike, you keep doing what you know is right and you’ll
never be in the wrong.
I’m proud that you are my little brother and you’re turning into a good man. I wish I could have been there to
watch your transformation. You be good and keep doing
what you’re doing. Love you boy.
Vol. 77 — No. 17 — 6/10/2006
Your Brother,
Alfred B.
Court’s Exhibit 2 is a poem, dated January 28, 1996, titled
“Dream Maker.” Postoak testified that he asked Mitchell to write
him a poem, and this was the one he sent. Court’s Exhibit 3 is
another letter, dated March 3, 1999. It reads:
Michael,
What’s going on dude? nothing much down here, I’m
just chillin’ as always. I thought I’d drop you a line to see
what’s going on with and to wish you a Happy Birthday.
I couldn’t get a card and my lawyer was on vacation so I
couldn’t have her send you one, but all the same I love you
boy and didn’t want you thinking I forgot your Birthday. I
hope it’s a good one.
Well, since you don’t write anymore I don’t know how
you’re doing that much anymore. I hope you’re staying
out of trouble and remember I’m always here if you need
to vibe [?] or something, alright?
You take care and keep it real always with the Almighty.
Alright? I love you and miss you lil brotha.
Your brotha,
Alfred B.
Court’s Exhibit 4 is an undated birthday card. The card
reads: “May God’s blessings be extra sweet . . . to make your special day complete! Happy Birthday.” The handwritten note
reads: “Michael, Happy Birthday. I love you little brother. Your
Bro, Alfred B.” The dates on Exhibits 2 and 3 reveal that they
were written while Mitchell was on death row, after this Court
affirmed his convictions and death sentence, before any federal
habeas relief had been granted.
129. Mitchell’s broader challenge to Bevel’s testimony is discussed
within Proposition VIII.
130. See Harris v. State, 2000 OK CR 20, ¶18, 13 P.3d 489, 495 (illustrative/demonstrative aids used to explain expert’s testimony “should
not have been made available for the jury during deliberations as they
have no independent evidentiary value”).
131. Dr. Saint Martin is a psychiatrist and an attorney. He first met
with and evaluated Mitchell in 1997 and then reevaluated him in 2002,
in preparation for the resentencing.
132. This investigation revealed that in 1997 Mitchell was still
blaming a person named “C-Ray” for the murder, though by 2002
Mitchell had acknowledged that he alone beat and killed Scott. As the
State brought out on cross-examination, however, Mitchell did not
admit to any type of sexual crime against Scott. Instead, he told Dr.
Saint Martin that he undressed Scott after she was already dead — to
make the scene look as if a rape had occurred — and then masturbated and ejaculated on her body. Dr. Saint Martin acknowledged that if,
in fact, some type of sexual attack took place before Scott was killed,
Mitchell still had not taken responsibility for that.
133. The primary case relied upon by Mitchell is Traywicks v. State,
1996 OK CR 54, 927 P.2d 1062. This case involved a very different question, namely, the use of a defendant’s silence in an interview with a
State mental health expert to impeach the defendant’s trial testimony
about his mental state during the crime. Id. at ¶6, 927 P.2d at 1063.
Nevertheless, the Traywicks opinion discusses various ways that a
defendant can waive his Fifth Amendment protection by the choices
he makes in defending/presenting his case. See id. at ¶¶9-12, 927 P.2d
at 1064-65. That is what happened here.
134. In particular, the State asked Bevel whether the crime scene
was consistent with Scott remaining clothed throughout the attack,
and then being undressed after she was already dead.
135. And this later testimony was consistent with the hypothetical
questions posed to Bevel.
136. See Romano v. State, 1995 OK CR 74, ¶63, 909 P.2d 92, 117.
137. Dr. Jones’s “rebuttal testimony” covered various matters,
including his theory of “successive approximations,” under which
individuals “admit responsibility only when they feel caged or
trapped or there is no obvious way out, so that their stories get closer
to the physical evidence over time.” We note that Jones specifically
stated that he was not in a position to testify regarding whether
Mitchell was a “continuing threat”: “I can’t address the issue of
whether Mr. Mitchell was violent or presents a continuing risk at this
time, I’m not in a position to be able to do so on the basis of my contacts with him 14 years ago.”
138. See Farris v. State, 1983 OK CR 141, ¶¶4-9, 670 P.2d 995, 997-98
(recognizing geometric blood stain interpretation as appropriate for
expert testimony and Tom Bevel as expert in field).
139. See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Vol. 77 — No. 17 — 6/10/2006
140. In Farris, we described geometric blood stain interpretation as
“a method used to reconstruct the scene of the crime.” 1983 OK CR
141, ¶4, 670 P.2d at 997. In Slaughter v. State, 1997 OK CR 78, ¶120, 950
P.2d 839, 871, we referred to Bevel as “an expert in crime scene reconstructions,” though we did not otherwise discuss or analyze the issue.
The Tenth Circuit Court of Appeals has described Bevel as “an expert
in geometric blood stain pattern interpretation and crime scene reconstruction.” See Hooks v. Ward, 184 F.3d 1206, 1211 (10th Cir. 1999).
141. See, e.g., Sims v. State, 1987 OK CR 2, ¶19, 731 P.2d 1368, 1371
(photographs relevant “to aid the jury in reconstructing the crime
scene”); Moore v. State, 1986 OK CR 25, ¶5, 714 P.2d 599, 601 (“The photographs were relevant in aiding the jury to reconstruct the crime
scene as described by the witnesses . . . .”); Young v. State, 1985 OK CR
59, ¶5, 701 P.2d 415, 417 (photograph of victim’s body “aided the jury
in reconstructing the crime scene.”).
142. For example, it would be inappropriate to have an expert witness testify about which witnesses were most likely telling the truth,
based upon an “expert” evaluation of their credibility.
143. The Court notes that this list is far from exhaustive of the
numerous types of expert testimony that could be appropriate in a
criminal trial.
144. See Harris, 2000 OK CR 20, ¶10, 13 P.3d 489, 493 (referring to
“advancements in the field of crime scene reconstruction”); cf. Willingham v. State, 1997 OK CR 62, ¶75, 947 P.2d 1074, 1088 (noting that testimony about how a murder was committed “should be left to those
experts who have been trained in the sciences and arts of crime scene
reconstruction and evidence interpretation”), overruled on other grounds
in Shrum v. State, 1999 OK CR 41, ¶10 n.8, 991 P.2d 1032, 1036 n.8.
145. See 12 O.S.2001, §2702.
146. 1995 OK CR 74, 909 P.2d 92.
147. Id. at ¶21, 909 P.2d at 109 (citations omitted). In Romano, we
found that Bevel testified beyond the scope of permissible expert testimony when he effectively told the jury that, in his expert opinion, the
defendant actively participated in the stabbing of the victim. We concluded that such testimony “overstepped the bounds of proper blood
spatter expert opinion and constitutes prejudicial personal opinion.”
Id. at ¶25, 909 P.2d at 110.
148. In Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143
L.Ed2d 238 (1999), the Supreme Court held that “the trial judge’s general ‘gatekeeping’ obligation” regarding expert testimony “applies not
only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.” Id. at 141,
119 S.Ct. at 1171 (Daubert applies to non-scientific expert testimony).
The Court noted that the objective of the gatekeeping requirement “is
to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an
expert in the relevant field.” Id. at 152, 119 S.Ct. at 1176.
149. See Romano, 1995 OK CR 74, ¶22, 909 P.2d at 110 (defense
counsel exposed imprecision and limits of Bevel’s expert testimony
through cross-examination). In Mitchell’s resentencing, defense counsel objected to some of the questions asked of Bevel, but conducted no
cross-examination.
150. Bevel testified extensively about what the physical evidence
at the crime scene — including the bloodstain patterns, the position of
Scott’s body, the location of various objects, etc. — suggested about the
“weapons” Mitchell used to attack Scott (including his hands, a golf
club, a compass, and a coat rack) and the order in which they were
used. Bevel also testified about the likelihood of some type of sexual
attack upon Scott prior to her death. He noted hip bruises consistent
with someone exerting pressure in this area, and also that the lack of
significant blood on her clothing was inconsistent with a scenario in
which the clothing was removed after her death.
151. The Court notes, however, that given the limited context of
the resentencing and the preceding testimony of the medical examiner, the length and scope of Bevel’s testimony seem overdone.
152. Responding to a defense objection regarding Bevel’s ability to
testify on a particular topic, the trial court stated, “I feel quite confident that Mr. Bevel, if he does not have an expertise as to any question,
that he would so state that he doesn’t, he’s not able to answer that
question.”
153. We agree that Bevel’s “expert” testimony that being stabbed
repeatedly by a compass would “hurt” was improper opinion testimony, since this opinion is based simply on the experiences of everyday life. Nevertheless, Mitchell was not prejudiced by such a commonsense observation.
154. Kumho, 526 U.S. at 152, 119 S.Ct. at 1176.
155. We do not separately address Mitchell’s challenge to the
rebuttal testimony of Dr. Herman Jones, because (as noted in Proposi-
1751
tion VII) this testimony related only to the continuing threat aggravator, which the jury rejected.
156. See Cargle v. State, 1995 OK CR 77, ¶76, 909 P.2d 806, 828,
(“[V]ictim impact evidence should not be admitted until the trial court
determines evidence of one or more aggravating circumstances is
already present in the record.”), habeas relief granted on other grounds in
Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003).
157. The court further noted that evidence from Mitchell’s original
convictions would be sufficient to establish the other two aggravators
alleged by the State.
158. Although Mitchell’s jury ultimately rejected the continuing
threat aggravator, this does not undermine the validity of the court’s
sufficiency of the evidence finding regarding this aggravator.
159. See Cargle, 1995 OK CR 77, ¶76, 909 P.2d at 828.
160. The trial court ruled that the issue was not yet ripe, but could
be raised if other family members later chose to testify.
161. He testified:
My family has been in disarray ever since my sister’s death.
My mother and father, still even 11 years later, still talk about it
as though it happened yesterday. I remember asking my father
what he wanted for Christmas the year after my sister was
killed. His answer was, “What I want you can’t give me. I want
my daughter back.”
That hurt me in ways I cannot describe. I asked him the same
question three years ago and got the same response. The answer
hurt just as bad. I have watched my parents slip in and out of
hopelessness and watched their health slip from them.
162. The trial court ruled:
I don’t think there is anything in the statute that limits it to only
one person. I mean, certainly there comes a point in time when
it might be limited, but under the — in this case we have a brother, a father, and a mother are the only planned victim impact witnesses.
It should be noted that Mitchell has never challenged the propriety of
these three persons testifying individually, since they are each members of the victim’s immediate family.
163. 2004 OK CR 27, 98 P.3d 318.
164. Id. at ¶110, 98 P.3d at 347.
165. Id.
166. Id. at ¶111, 98 P.3d at 347.
167. See Wood v. State, 1998 OK CR 19, ¶47, 959 P.2d 1, 13 (finding
that Cargle “was not intended to dictate the order of presentation of
evidence during the second stage”).
168. See, e.g., Cargle, 1995 OK CR 77, ¶75 n.15, 909 P.2d at 828 n.15;
see generally Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d
720 (1991).
169. See Cargle, 1995 OK CR 77, ¶81, 909 P.2d at 830 (“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.”); Conover v. State, 1997 OK CR
6, ¶67, 933 P.2d 904, 921 (“[I]n admitting evidence of emotional impact,
especially to the exclusion of other factors, a trial court runs a much
greater risk of having its decision questioned on appeal.”) (citing Cargle).
170. Ann Scott also described the impact of the victim’s death on
other family members.
171. See Cargle, 1995 OK CR 77, ¶77, 909 P.2d at 828-29 (promulgating instruction now found at OUJI-CR 2d (Supp. 2000) 9-45).
172. In Payne, the Court emphasized that just as evidence about the
specific harm caused by a defendant is, in general, a legitimate sentencing consideration, evidence about how a murder victim’s death
represents a “loss to the victim’s family and to society” is likewise
appropriate in a capital sentencing proceeding. See 501 U.S. at 825, 111
S.Ct. at 2608.
173. Mitchell argues that this reference to society’s loss was particularly prejudicial in his case, since the jury heard substantial testimony about Elaine Scott’s contributions to society.
174. See 22 O.S.2001, §§984 and 984.1 (discussed supra).
175. See Payne, 501 U.S. at 823, 111 S.Ct. at 2607.
176. See Cargle, 1995 OK CR 77, ¶75, 909 P.2d at 828 (under 22 O.S.
§984, victim impact evidence can include a “quick glimpse” of the life
the defendant chose to extinguish).
177. For example, a family member might testify that the loss of
the victim was especially painful and seemed particularly unjust
because the victim had devoted his or her life to serving others.
178. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
179. Mitchell’s jury was instructed in accord with OUJI-CR 2d
(Supp. 2000) 4-80. This instruction requires unanimity regarding the
1752
jury’s weighing determination, but it does not mention the “beyond a
reasonable doubt” standard regarding this determination.
180. See 21 O.S.2001, §701.11 (“Unless at least one of the statutory
aggravating circumstances enumerated in this act is so found or if it is
found that any such aggravating circumstance is outweighed by the
finding of one or more mitigating circumstances, the death penalty
shall not be imposed.”).
181. 2002 OK CR 35, ¶¶3-7, 58 P.3d 214, 215-16.
182. Mitchell’s resentencing case was originally assigned to the
Honorable Ray C. Elliott. The parties agreed, however, that Judge
Elliott should recuse, based upon his active participation in the original prosecution of Mitchell, while Elliott was the Director of the Criminal Division in the Oklahoma County District Attorney’s Office.
183. Although the transcript does not contain the name of the “victim’s brother” whose wedding Caswell attended, Mitchell asserts that
the referenced brother is David Scott, who testified as a victim impact
witness during Mitchell’s resentencing. The State does not contest this
assertion.
184. The recusal motion cited the following as reasons that Judge
Caswell should recuse: her work as an assistant district attorney in the
sex crimes division of the Oklahoma County D.A.’s Office at the time
of Mitchell’s original trial; her campaign literature expressing her commitment to fight for the rights of victims; a personality conflict with
Mitchell’s original attorney; and the judge’s personal relationship with
Judy Busch, “a prominent victim’s rights advocate,” and attendance at
the wedding of Busch’s daughter to the brother of the victim in this
case.
185. Judge Caswell maintained that her work in the sex crimes
division would not be relevant to Mitchell’s resentencing, since his
rape and sodomy convictions had been thrown out: “So those will not
be even issues in this case for this jury to be concerned about . . . .”
186. At the February 4, 2002, hearing, Judge Caswell stated simply:
“I am friends with Judy Busch.” She repeatedly described their relationship as a “friendship” and noted that she attended the wedding
“as a friend of Judy Busch’s.” She contrasted this relationship with her
connection to the victim’s brother, which she described as an
“acquaintanceship.” At the March 6, 2002, hearing, however, Judge
Caswell consistently and insistently described her relationship with
Judy Busch as an “acquaintanceship.” She stated, “I told you all at the
last hearing what my relationship is with Ms. Bush [sic]. We are
acquaintances.”
187. See Rule 15, Rules for District Courts of Oklahoma, Title 12, Ch.
2, App. 1 (2002).
188. This rehearing request must be filed in the case within five
days of the judge’s refusal to recuse. See Rule 15(b). And if a party is
seeking the disqualification of the chief judge, the rehearing request
should be filed with the presiding judge of the administrative district.
Id.
189. See Rule 15(b) & (c). The party seeking to disqualify the
assigned judge must file an original proceeding in mandamus with
this Court, within five days of the adverse order. We will not entertain
the mandamus action, “unless it is shown that the relief sought was
previously denied by the judge to whom the matter was re-presented
in accordance with this rule.” See Rule 15(b).
190. In Hatch v. State, 1983 OK CR 47, 662 P.2d 1377, this Court
noted that the proper statutory procedure for disqualifying a judge is
established in 20 O.S. §1403: “Strict compliance with this section is
required before a trial judge will be disqualified.” Id. at ¶5, 662 P.2d at
1380; see also 20 O.S.2001, §1403 (mandamus action available for challenging judge’s failure to disqualify).
191. 2000 OK CR 8, 2 P.3d 356.
192. Id. at ¶37, 2 P.3d at 372 (citing Hatch and quoting Willis v. State,
1982 OK CR 134, ¶4, 650 P.2d 873, 874); see also Young v. State, 123 P.2d
294 (Okl. Cr. 1942) (failure to follow statutory mandamus procedure
for disqualifying judge waives issue for appellate review).
193. Hence we will not address the merits of Mitchell’s
recusal/disqualification claim.
194. See Okla. Const. Art. 2, §6 (“The courts of justice of the State
shall be open to every person, . . . and right and justice shall be administered without sale, denial, delay, or prejudice”); Okla. Const. Art. 2,
§7 (right to due process); Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437,
444, 71 L.Ed. 749 (1927) (due process requires that trial judge “hold the
balance nice, clear, and true between the state and the accused”); Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S.Ct. 1246, 1265, 113
L.Ed.2d 302 (1991) (biased judge is “structural defect[] in the constitution of the trial mechanism” and therefore not subject to harmless
error analysis).
195. 1998 OK CR 68, 972 P.2d 1157.
196. Id. at ¶10, 972 P.2d at 1163 (citing Okla. Const. Art. 2, §6 and
Bryan v. State, 1997 OK CR 15, 935 P.2d 338, 354-55).
Vol. 77 — No. 17 — 6/10/2006
197. See, e.g., State ex rel. Vahlberg v. Crismore, 213 P.2d 293, 247 (Okl.
Cr. 1949) (“Every person accused of crime is entitled to nothing less
than the cold neutrality of an impartial judge . . . .”); Bartell v. State,
1994 OK CR 59, ¶13 n.3, 881 P.2d 92, 96 n.3 (right to impartial judge so
fundamental to due process that denial not subject to harmless error
analysis) (citations omitted).
198. Mitchell lists the following Propositions as involving bias: I, II,
III, VI, VII, VIII, XII, and XIII.
199. Some of this evidence is discussed within other propositions.
200. The trial court had sustained Mitchell’s motions in limine forbidding any reference to his overturned death sentence and prohibiting any comments that would violate Caldwell v. Mississippi, 472 U.S.
320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
201. The prosecutor stated: “Your Honor, I don’t have any — I was
repeating a statement, but the words came out of my mouth wrong. I
shouldn’t have said it. Don’t know what to do about it.”
202. The prosecutor was attempting to contrast Dr. Saint Martin’s
trial testimony with a statement in his 1997 report, and asked, “Do you
see any difference between what I just read and what you just told the
jury?”. Dr. Saint Martin responded, “Well, I understood that he was —
he was telling me how he ended up on death row at the time that I
went — .”
203. In other words, a person unfamiliar with such things might
believe that someone who has been merely charged with a capital
offense would be “on death row.” The references during the prosecutor’s closing remarks to “H unit” — in his argument about the behavioral incentives for a person “on H unit” — are an even more oblique
reference to a prior death penalty verdict. Although this Court strongly cautions against such references — since one or more jurors could,
in fact, realize that a prisoner is only placed on H unit after he or she
has been sentenced to death — these remarks, to which no objection
was raised, do not change the Court’s conclusion that a mistrial (on
this particular issue) was unnecessary in the current case.
204. See, e.g., Caldwell, 472 U.S. at 328-39, 105 S.Ct. at 2639 (“[I]t is
constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of the defendant’s
death rests elsewhere.”); Romano v. Oklahoma, 512 U.S. 1, 10, 114 S.Ct.
2004, 2010, 129 L.Ed.2d 1 (1994) (unconstitutional to “affirmatively
mislead” jury regarding its role in capital sentencing process, “so as to
diminish its sense of responsibility”); Romano v. State, 1993 OK CR 8,
¶¶97-103, 847 P.2d 368, 390-91 (information that defendant had been
sentenced to death in another case irrelevant, but did not mislead jury
regarding its role in capital sentencing process), aff’d, Romano, 512 U.S.
1 (1994).
205. The record does not support Mitchell’s claim that the prosecutor “compared” Mitchell’s case to other “notorious” crimes during
voir dire. In addition, the record reveals that Mitchell did present evidence — through the testimony of witnesses who had met with him —
suggesting that he felt remorse for his crimes. Hence the State’s argument that Mitchell’s evidence did not establish sincere remorsefulness
was a legitimate critique of the defense evidence presented, rather
than an indirect comment on Mitchell’s failure to testify. Cf. Smith v.
State, 1986 OK CR 158, ¶33, 727 P.2d 1366, 1373-74 (prosecutorial argument about defendant’s lack of remorse permissible in capital sentencing “if there is support for the argument in the evidence presented”).
206. Mitchell’s bare assertion that the prosecutor “improperly denigrated the mitigating evidence” does not adequately develop this
claim. In addition, Mitchell failed to object to the prosecutor’s bolstering and vouching regarding Tom Bevel’s testimony or to the prosecutor’s comment that the victim’s family had left the courtroom. We fail
to find plain error in either regard.
207. The prosecutor’s voir dire references to rape are addressed
within Proposition I; and the presentation of cumulative evidence
about the crime scene is addressed within Proposition VI.
208. Relief will be granted on a prosecutorial misconduct claim
only where the misconduct effectively deprives the defendant of a fair
trial or a fair and reliable sentencing proceeding. See Spears v. State,
1995 OK CR 36, ¶60, 900 P.2d 431, 445 (citing cases).
209. Defense counsel asserted:
And since we’re up here, I object . . . to him pointing at our client
and then you overruled my objection and he took two steps further towards our client and pointed at him again, and he had
anger in his voice, and we object to that kind of behavior. We
don’t think it’s appropriate.
210. The prosecutor was arguing: “Ladies and gentlemen of the
jury, you can with one voice say to him, you killed her in a way that is
especially heinous, atrocious, and cruel. She consciously suffered.
Ladies and gentlemen, together you can say, Alfred Brian Mitchell,
Vol. 77 — No. 17 — 6/10/2006
you may not want to accept responsibility — ”. At this point defense
counsel objected and asked to approach.
211. Defense counsel then moved for a mistrial, which was also
denied.
212. The prosecutor continued as follows:
She suffered when you sexually assaulted her, she suffered
after you sexually assaulted her, and you took the golf club to
her. Ladies and gentlemen, your verdict can look right at him
and say, she suffered when you broke the golf club over her head
and you still weren’t done. She suffered moaning, screaming,
begging, crying, “Why, why, why?” When you went for the coat
rack, she suffered the first time you hit her with the coat rack,
she suffered the second time you hit her with the coat rack, she
suffered the third, fourth, five, six, God knows how many times,
until she was quiet and you were done. Ladies and gentlemen,
your verdict can say after she started crying and screaming the
last time — and not Kareem; him — picked it up the last time
and crushed her skull and she stopped suffering.
Mitchell also challenges the manner in which the prosecutor aligned
himself with the victim and spoke for the victim in this portion of his
closing argument. See Spees v. State, 1987 OK CR 62, ¶18, 735 P.2d 571,
575-76 (improper for prosecutor to align himself with victim); Tobler v.
State, 1984 OK CR 90, ¶16, 688 P.2d 350, 354 (improper to invoke sympathy for victim).
213. The prosecutor ended by reassuring jurors that a death penalty verdict is “not a vengeance, it’s not hatred; it is justice.”
214. Such behavior is likewise improper during voir dire and at
any point during a trial.
215. See McCarty v. State, 1988 OK CR 271, ¶15, 765 P.2d 1215, 1221
(condemning prosecutorial argument that was “calculated to inflame
the passions and prejudices of the jury”); see also Jones v. State, 1983 OK
CR 31, ¶7, 660 P.2d 634, 646 (modifying death sentence “in light of the
obvious prejudice effected by the statements made by the District
Attorney during closing arguments”).
216. See, e.g., McCarty, 1988 OK CR 271, ¶14, 765 P.2d at 1221
(“While a prosecutor may draw logical inferences and state his conclusions based on the evidence, it is improper for him to state his personal opinion.”) (citation omitted); see also Torres v. State, 1998 OK CR
40, ¶48, 962 P.2d 3, 18 (citing McCarty); Ochoa v. State, 1998 OK CR 41,
¶55, 963 P.2d 583, 601 (citing McCarty).
217. See Anderson v. State, 1999 OK CR 44, ¶40, 992 P.2d 409, 421;
Thornburg v. State, 1999 OK CR 32, ¶24, 985 P.2d 1234, 1244; Marshall v.
State; 1998 OK CR 30, ¶20, 963 P.2d 1, 8.
218 The resentencing trial court repeatedly took this approach to
defense counsel’s objections.
219. Cf. McCarty, 1988 OK CR 271, ¶16, 765 P.2d at 1221 (“[T]he
trial judge has an affirmative obligation ‘to ensure that final argument
to the jury is kept within proper, accepted bounds.’”) (quoting ABA
Standards for Criminal Justice, The Prosecution Function, §3-5.8(e)
(1980)).
220. Although this Court has not, for example, specifically ruled
that prosecutors cannot spit on defendants, surely most trial courts
could reasonably infer that such behavior is impermissible.
221. In Le v. State, 1997 OK CR 55, ¶¶41-45, 947 P.2d 535, 552-53, for
example, this Court upheld the constitutionality of the “heinous, atrocious, or cruel” aggravator, where the jury instruction used was identical to the one used in Mitchell’s resentencing. See also Black v. State,
2001 OK CR 5, ¶78, 21 P.3d 1047, 1073-74.
222. See DeRosa v. State, 2004 OK CR 19, ¶¶90-91, 89 P.3d 1124,
1154-55, cert. denied, 543 U.S. 1063, 125 S.Ct. 889, 160 L.Ed.2d 793 (2005).
The DeRosa case also specifically discussed and rejected the assertion
that the aggravator should be restricted to cases involving the infliction of “gratuitous violence.” Id. at ¶¶92-93, 89 P.3d at 1155.
223. The properly admitted evidence overwhelmingly established
“serious physical abuse” by Mitchell, resulting in “conscious physical
suffering” by Scott. See id. at ¶96, 89 P.3d at 1156.
224. Regarding Mitchell’s first claim, we note that his jury instructions did not contain the challenged “may be considered” language
within the definition of “mitigating circumstances.” Regarding
Mitchell’s second claim, we note that Instruction No. 19 specifically
informed his jurors: “Even if you find that the aggravating circumstance or circumstances outweigh the mitigating circumstance or circumstances, you may impose a sentence for life with the possibility of
parole or imprisonment for life without the possibility of parole.” We
also note that the State failed to recognize this disparity between the
claims “preserved” by Mitchell and the actual jury instructions in his
case.
225. See DeRosa, 2004 OK CR 19, ¶100, 89 P.3d at 1157; Lewis v. State,
1998 OK CR 24, ¶63, 970 P.2d 1158, 1176; Matthews v. State, 2002 OK CR
16, ¶57, 45 P.3d 907, 924.
1753
226. We have also concluded, however that the State shall not be
precluded from pursuing this aggravating circumstance in any future
resentencing, so long as it abides by the guidelines articulated by this
Court in doing so.
227. The errors committed at Mitchell’s resentencing were not all
equally significant. For example, the admission into evidence of the
timeline exhibit was not particularly prejudicial.
228. For the same reason we also decline Mitchell’s invitation to
simply modify his sentence.
229. Although this Court does not decide the issue in the current
case, I would hold that the jury’s rejection of the “continuing threat”
aggravator in the prior proceeding precludes the pursuit of this aggravator in any subsequent proceeding. It is my belief that the Apprendi/Ring revolution compels us to re-examine our sentencing precedents, with more focus upon respecting the primacy of jury verdicts.
See cases cited supra in note 67. In particular, I maintain that a careful
reading of the various opinions in Sattazahn v. Pennyslvania, 537 U.S.
101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), particularly Part III of Justice
Scalia’s plurality opinion and Justice Ginsburg’s dissent, reveals that a
strong majority of the Court has rejected the doctrinal basis of Poland
v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), which
would allow the State to try again on the continuing threat aggravator.
I would hold that Mitchell has been “acquitted” of the continuing
threat aggravator, i.e., that he has been acquitted of the “greater
offense” of “murder plus continuing threat,” and thus that Double
Jeopardy forbids allowing the State to repursue this aggravator in any
subsequent resentencing. For a more comprehensive analysis of this
issue, see my dissent in Hogan v. State, 2006 OK CR 19, __ P.3d. __.
LUMPKIN, VICE-PRESIDING JUDGE:
CONCUR IN RESULTS
¶1 I concur in the decision to remand this
case for resentencing. However, I cannot join in
the attempt to limit the application of the
“avoid arrest or prosecution” aggravating circumstance and to turn the capital sentencing
stage of this case into a mini-trial on the existence of this aggravator. The opinion has
wrongly focused on whether the defendant’s
actions immediately prior to and leading up to
the murder constitute a statutorily defined
crime for which evidence sufficient to support
a criminal conviction must be presented. Such
a scenario is covered under another aggravator, that of “prior violent felony.” See 21 O.S.
2001, §701.12(1) (which requires evidence of a
prior conviction for a violent felony to make a
defendant death eligible). However, in the
“avoid arrest or prosecution” aggravating circumstance, the focus is shifted from the legal
outcome of the defendant’s acts to the defendant’s motivation and reason for committing
the murder at that time. Under 21 O.S. 2001,
§701.12(5) the State may allege as an aggravating circumstance that “[t]he murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.” By this language, a person who kills to keep the victim
from testifying about acts perceived to be criminal and prosecutable, committed prior to and
leading up to the murder is death eligible. It is
the motivation and perception of the defen1754
dant at the time of the homicide that satisfies
the aggravator — not the underlying act itself.1
¶2 This is clearly seen in Cleary v. State, 1997
OK CR 35, 942 P.2d 736. In finding the evidence
sufficient to support the “avoid arrest and
prosecution” aggravator, this Court stated in
part:
In his video-taped statement Cleary attributed two critical statements to Chandler.
These statements are, "If someone sees us
we have to pop ‘em”, and, immediately
before the shooting, “She seen us, she seen
us.” These statements show Cleary was
aware of the need to eliminate any witnesses. Applying the facts to the standard
of proof, we find Cleary murdered the only
witness to a burglary he had just
committed.
1997 OK CR 35, ¶71, 942 P.2d at 751 (emphasis
added)
¶3 Also, in Lott v. State, 2004 OK CR 27, 98
P.3d 318, we stated:
In the present case, the evidence showed
Appellant subdued and raped both victims. While Appellant and the victims did
not know one another, there is no indication Appellant attempted to hide his identity during the rape. That the victims
could have identified their assailant if
left alive is sufficient to support the conclusion that the victims were killed in
order to prevent their identification of
Appellant and his subsequent arrest and
prosecution.
2004 OK CR 27, ¶117, 98 P.3d at 348 (emphasis
added, internal citations omitted).
¶4 In the present case, Appellant had been
released from the Rader juvenile detention
center less than 3 weeks when he met Scott at
the Pilot Recreation Center. He had been held
at the juvenile detention center for the rape of
an 11 year old. Appellant committed a sexual
assault against Scott. Appellant knew that if
she reported the sexual assault to the police
and identified him as the perpetrator, he was
going back to jail. In Appellant’s mind, the
only way to prevent this was to kill Scott. The
“avoid arrest” aggravator must be viewed
through the eyes of the defendant at the time
of the murder to determine the defendant’s
reason for the killing. To do more, is to not only
Vol. 77 — No. 17 — 6/10/2006
disregard the language of the aggravator, but
to obviate it.
¶5 While this Court has required the commission of a “predicate crime” in order to
prove the aggravator, we have not required a
criminal conviction for the predicate crime or
proof of evidence beyond a reasonable doubt
to support a conviction. Rather, the term
“predicate crime” reflects that in most cases,
the defendant has committed acts which could
be prosecuted separate and apart from the
murder.
¶6 The present case has an admittedly
unusual set of circumstances involving the
“predicate crime” used to support the “avoid
arrest” aggravator. The opinion states that
Cummings compels us to conclude trial court
error in allowing the State to argue Appellant
killed the victim in order to prevent his arrest
or prosecution for having raped her. I agree
that the forensic evidence now shows that a
completed rape was not committed. Therefore,
the State should not have been allowed to
argue the aggravator was based upon the
crime of rape. However, that does not mean
that Appellant’s assault upon the victim prior
to her murder is insufficient to support the
aggravator.
¶7 Cummings is factually distinguishable
from the present case.2 In Cummings, there was
no evidence of the commission of any crimes
other than those dismissed by the court. But, in
reality, for this aggravator all that was required
was for the defendant to perceive he could
have been arrested or prosecuted for the
underlying acts he committed, and which led
to the homicide. In the present case, the evidence clearly shows that Appellant’s acts
before the murder comprised a criminal
offense against the victim.
¶8 While forensics have caused us to rule out
a completed rape, the evidence still indicates
some type of sexual assault did occur. The
majority opinion in this case makes much of
the fact that “sexual assault” is not a specific
statutorily enumerated offense. I agree that it is
not a statutory offense, but rather a term which
refers to and is generally understood to designate a class or category of sex-related crimes.
However, I would extend the meaning of the
term to a category of sex-related crimes not
amounting to first degree rape.
Vol. 77 — No. 17 — 6/10/2006
¶9 In the present case, the evidence shows
the commission of one of the following sexrelated crimes: attempted rape pursuant to 21
O.S. 2001, §§42, 44, & 1114; sexual battery pursuant to 21 O.S. 2001, §1123(B); or assault with
intent to commit a rape pursuant to 21 O.S.
2001, §§681 & 1114). Assuming arguendo, the
“predicate crime” is to be a statutorily enumerated offense, any of those offenses listed
above would be sufficient to satisfy the “avoid
arrest” aggravator in this case.3 However, I
believe that under the statutory language of
this aggravator, a defendant needs only to
have committed acts at the time which caused
him/her to believe could have led to his/her
arrest or prosecution. A defendant is not
required to be vested with the knowledge of a
lawyer and be able to outline the elements of a
crime before the aggravator is applicable, only
that he/she has committed an act that he/she
thinks is criminal in nature and may cause
him/her to be arrested or prosecuted. That is
sufficient evidence to satisfy this aggravator.
¶10 Further, as the focus of the “avoid
arrest” aggravator is not the legal outcome of
the defendant’s predicate criminal act — that
Appellant’s acts leading to Scott’s murder
were originally labeled first degree rape, a conclusion subsequently proven by forensic evidence to be incorrect, — does not prevent the
use of evidence of those acts from being used
to support the “avoid arrest” aggravator.
“Aggravating circumstances are not separate
penalties or offenses, but are ‘standards to
guide the making of [the] choice between the
alternative verdicts of death and life imprisonment.’” Poland v. Arizona, 476 U.S. 147, 156, 106
S.Ct. 1749, 1755, 90 L.Ed.2d 123 (1986). To
require the jury to make specific findings on
the “predicate crime” and its elements would
be contrary to the capital jurisprudence established by the United States Supreme Court and
this Court. See Brown v. State, 2003 OK CR 7, 67
P.3d 917.
¶11 Upon resentencing, I find the State may
ask the jury to find the existence of the “avoid
arrest” aggravator by alleging and presenting
evidence that Appellant killed the victim in
order to prevent her from identifying and if
necessary testifying against him for the commission of a sexual assault. In addition, I find
the aggravator could also be supported by evidence of the armed robbery and potentially the
larceny of an automobile, based on evidence
that might be available.
1755
¶12 Further, I do not find that because the
jury did not find the existence of the “continuing threat” aggravator, the jury has effectively
acquitted Appellant of that aggravator and it
cannot be alleged in any future resentencing
cases.
¶13 Initially, this conclusion is consistent
with our holding in Salazar v. State, 1996 OK
CR 25, 919 P.2d 1120. Although the sentencing
jury in that case did not find the existence of
two of the aggravating circumstances alleged,
the jury did find Appellant should receive the
death penalty. On appeal, this Court found evidence in the record to support the statutory
aggravating circumstances. Relying on Poland
v. Arizona, 476 U.S. at 157, 106 S.Ct. at 1756, we
remanded the case for resentencing so an
appropriate sentencer could weigh the evidence of aggravating circumstances with any
evidence of mitigating circumstances and render an appropriate sentence. “Put simply,
when there is evidence of aggravating circumstances in the record and error requires reversal, the slate is wiped clean and a defendant
may be subjected to any punishment authorized by law including death.” 919 P.2d at 1127.
¶14 Sattazahn v. Pennsylvania, 537 U.S. 101,
123 S.Ct. 732, 154 L.Ed.2d 588 (2003), is further
authority for this principle even though it is
distinguishable from the facts in this case. In
Sattazahn the jury deadlocked on punishment
and state law provided that in such a circumstance, a life sentence was mandatory. The plurality holding of Sattazahn found the jury’s
inability to reach a decision in the penalty
phase of a capital trial resulting in the imposition of a statutorily mandated life sentence did
not bar the prosecution from seeking the death
penalty again on retrial. 537 U.S. at 112-13, 123
S.Ct. at 740. The Supreme Court found that
because the jury had deadlocked on sentencing, the appellant could not show he had been
“acquitted.”
¶15 While the jury in the present case did not
find the existence of the particular aggravator,
we do not have a unanimous finding that the
aggravator did not exist at all. Some jurors
may have found the aggravator while others
did not. We simply do not know from the
record. However, we do know the jury recommended Appellant be sentenced to death.
Under these circumstances, Appellant has not
shown that he has been “acquitted.” This
application of the law is consistent with our
1756
recent decision in Hogan v. State, 2006 OK CR
19, ¶¶52-59, ___ P.3d ___.
¶16 Regarding the allegations of prosecutorial misconduct, I agree that prosecutors should
not express personal opinions regarding the
evidence or the defendant’s guilt, and that
they should act in a respectful and professional manner. However, I am concerned that in its
attempt to set boundaries for argument, the
Court has done nothing more than seek to
stymie the art of advocacy. The jury is clearly
instructed on the distinction between evidence
and argument, and the weight to be given
each. The trial judge has a continuing duty and
responsibility to supervise and control the conduct of counsel in the courtroom and to assure
absolute professionalism at all times. This
Court’s repeated attempts to constrain argument are contrary to our well established rule
allowing for liberal freedom of speech in closing argument. Under this type of trial micromanagement great advocates such as William
Jennings Bryant and Clarence Darrow would
not have been able to utilize their oratory skills
in an Oklahoma court.
¶17 In Proposition XV, I find Appellant has
waived appellate review as he has not provided any argument or authority as to why this
Court should reconsider it prior rulings on
eight different issues. See Rule 3.5C, Rules of the
Oklahoma Court of Criminal Appeals, Title 22,
Ch.18, App. (2001). See also Romano v. State,
1995 OK CR 74, ¶65, 909 P.2d 92, 117.
¶18 I am authorized to state that Judge
Steven Taylor joins in this separate vote and
writing.
1. While I do not require the defendant to necessarily know or
understand that his predicate act is a criminal offense, certainly the
language of the statute providing for “lawful arrest or prosecution”
requires the predicate crime to be an illegal act for which the defendant could be arrested and/or prosecuted.
2. Cummings also causes me to reconsider how we analyzed the
“avoid arrest” aggravator in that case. That opinion illustrates how
easy it is for this Court to lose its focus where this aggravator is concerned. On appeal, this Court agreed with the defendant that evidence
that he had abused and raped Moody could not be relied upon by the
State to support the “avoid arrest” aggravator as the evidence supporting those criminal charges was found insufficient and the criminal
charges were dismissed. Based upon the dismissal of those charges,
this Court found the supporting evidence could not be used in support
of the “avoid arrest” aggravator. I concurred in that finding based
upon the dismissal of the charges. However, instead of focusing on
that legal determination, the focus should have been on the appellant’s
perceptions, motivations, and acts leading up to and preceding the
murder. As I stated in my separate writing, “a ‘verdict of acquittal does
not prevent the sentencing court from considering conduct underlying
the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.’ United States v. Watts, 519 U.S. 148, 157.
117 S.Ct. 633, 638, 136 L.Ed.2d 554 (1997).” 968 P.2d at 839. Upon
review of Cummings, I would now find the acts underlying the child
abuse/rape charge, regardless of the outcome of any legal proceedings
Vol. 77 — No. 17 — 6/10/2006
against the defendant for the murder of Mayo, could be used to support the “avoid arrest” aggravator as they show Moody’s murder was
committed by the defendant in order to prevent Moody from identifying him in any investigation concerning Mayo’s disappearance/death.
3. Alleging in the Bill of Particulars, the commission of a sexual
assault upon the victim as evidence supporting the “avoid arrest”
aggravator is sufficient to put Appellant on notice and enable him to
defend against the aggravator.
2006 OK CR 21
GEORGE OCHOA, Petitioner, v. STATE OF
OKLAHOMA, Respondent.
No. PCD-2002-1286. May 25, 2006
OPINION DENYING SECOND
APPLICATION FOR POST-CONVICTION
RELIEF AFTER REMAND FOR JURY
DETERMINATION ON ISSUE OF
MENTAL RETARDATION
C. JOHNSON, JUDGE:
¶1 Petitioner, George Ochoa, was convicted
by a jury of two counts of First Degree Murder
and one count of First Degree Burglary in
Oklahoma County District Court, Case No. CF
1993-4302. He was sentenced to death for both
murders and to twenty (20) years imprisonment for burglary. We affirmed these judgments and sentences on direct appeal.1 This
Court denied Ochoa’s Original Application for
Post-Conviction Relief,2 and his federal habeas
is pending in the Tenth Circuit.3
¶2 On December 2, 2002, Ochoa filed a Second Application for Post-Conviction Relief in a
Death Penalty Case. We denied relief on
Propositions Two and Three and granted Petitioner’s request for an evidentiary hearing on
Proposition One. Ochoa v. State, PCD 2002-1286
(Okl.Cr. December 17, 2002)(not for publication). An evidentiary hearing was held before
the Honorable Susan Bragg on February 3,
2003, but the scope of that hearing was limited
and further remand was required. Ochoa v.
State, PCD 2002-1286 (Okl.Cr. March 27,
2003)(not for publication). A second evidentiary hearing on the issue of mental retardation
was held, and following that hearing, we
remanded this case to the District Court for a
jury trial on mental retardation. Ochoa v. State,
PCD 2002-1286 (Okl.Cr. April 15, 2004)(not for
publication).
¶3 Jury trial on the issue of mental retardation was held on June 20th – 21st, 2005, before
the Honorable Virgil Black, District Judge. The
jury returned a verdict that Mr. Ochoa is not
mentally retarded. (O.R. 116; Tr. 327-328) The
trial court filed Findings of Fact and ConcluVol. 77 — No. 17 — 6/10/2006
sions of Law in the District Court on July 20,
2005.4 Petitioner’s Supplemental Brief After
Mental Retardation Jury Trial was filed on September 16, 2005. The State of Oklahoma filed
its Supplemental Brief on September 23, 2005.
¶4 Though this appeal remains part of Mr.
Ochoa’s post-conviction case, we will review
errors alleged to have occurred in this jury trial
on mental retardation in the same manner as
errors raised on direct appeal from a trial on
the merits. Myers v. State, 2005 OK CR 22, ¶ 5,
130 P.3d 262, 265.
¶5 Prior to his jury trial on mental retardation, Ochoa asked the trial court to reverse the
order of proof and shift the burden to the State
to prove he was not mentally retarded beyond
a reasonable doubt. The trial court denied the
motion prior to voir dire and thereafter instructed the jury that Mr. Ochoa carried the burden
of proving mental retardation by a preponderance of the evidence. In his first claim of error,
Mr. Ochoa asks this Court “to revisit and overrule its prior decisions regarding the burdens
of persuasion and proof in these types of cases
and to hold that the State bears the burden of
persuasion by the beyond a reasonable doubt
standard that the Petitioner is not mentally
retarded.”
¶6 The Supreme Court, in Atkins v. Virginia,
536 U.S. 304, 317, 122 S.Ct. 2242, 2250, 153
L.Ed.2d 335 (2002), left to the individual States
“the task of developing appropriate ways to
enforce the constitutional restriction” against
the execution of mentally retarded persons.5 In
response to Atkins, this Court has developed
procedures to be followed when a post-conviction applicant, who has previously been sentenced to death, raises a claim that mental
retardation bars his or her execution. See Murphy v. State, 2002 OK CR 32, 54 P.3d 556, overruled in part in Blonner v. State, 2006 OK CR 1, ¶
5, 127 P.3d 1135, 1139; Lambert v. State, 2003 OK
CR 11, ¶ 4, 71 P.3d 30, 31-32; State ex.rel. Lane v.
Bass, 2004 OK CR 14, ¶ 8, 87 P.3d 629, 631-632.
¶7 In a post-conviction proceeding, when
this Court has remanded the matter for a jury
determination on the factual issue of mental
retardation, a petitioner must prove mental
retardation by a preponderance of the evidence. Bass, 2004 OK CR 14, ¶ 8, 87 P.3d at 631632; Lambert, 2003 OK CR 11, ¶ 4, 71 P.3d at 3132. To meet this burden, the petitioner must
show he or she
1757
functions at a significantly sub-average
intellectual level that substantially limits
his ability to understand and process information, to communicate, to learn from
experience or mistakes, to engage in logical
reasoning, to control impulses, and to
understand the reactions of others; 2) that
his mental retardation manifested itself
before the age of 18; and 3) that he has significant limitations in adaptive functioning
in at least two of the nine listed skill areas.
Myers, 2005 OK CR 22, ¶ 6, 130 P.3d at 266. The
jury must consider the evidence presented by
the State and by the petitioner and determine
whether the petitioner has met this burden. If
the jury finds the petitioner is not mentally
retarded, the death sentence stands. Myers, id.;
Lambert, 2003 OK CR 11, ¶ 5, 71 P.3d at 32.
¶8 This procedure has evolved somewhat
since our first effort in Murphy, but a constant
in the development of this area of the law in
Oklahoma is that the burden of proof in a mental retardation jury trial shall be upon the petitioner/defendant to prove mental retardation
by a preponderance of the evidence. Murphy,
2002 OK CR 32, ¶ 31, 54 P.3d at 568; Blonner,
2006 OK CR 1, ¶ 3, 127 P.3d at 1139; Lambert,
2003 OK CR 11, ¶ 4, 71 P.3d at 32; Bass, 2004 OK
CR 14, ¶ 8, 87 P.3d at 631-632; Myers, 2005 OK
CR 22, ¶ 6, 130 P.3d at 265.
¶9 Contrary to Ochoa’s claim, we do not
believe the principles underlying the Supreme
Court’s decision in Atkins require this Court to
overrule our decisions dealing with the burden
and standard of proof in mental retardation
jury trials. To require the defendant/petitioner
to show by a preponderance of the evidence
his or her mental retardation to establish ineligibility for a sentence of death does not violate
either of Oklahoma’s constitutional provisions
which ensure due process of law and protect
against the infliction of cruel or unusual
punishment. See Okla.Const. art.II, §§ 7, 9.
¶10 Further, we are not persuaded to restructure our procedure by the New Jersey Superior
Court’s holding in State v. Jimenez, 880 A.2d 468
(N.J. Super.Ct. App. Div. 2005), which requires
the State to establish the absence of mental
retardation beyond a reasonable doubt. The
holding in Jimenez that the burden should be
on the State to prove a defendant’s mental
retardation is based upon that Court’s interpretation of its own State Constitution and
upon its public policy grounds. Jimenez, 880
1758
A.2d at 489. Accordingly, Ochoa’s first
proposition of error is denied.
¶11 In Proposition Two, Ochoa argues that
the Supreme Court’s holding in Atkins prohibits the State from executing a person who
was mentally retarded at the time the crimes
were committed, not at the time of the jury trial
on the issue of mental retardation. Evidence
presented at Ochoa’s jury trial on mental retardation showed that Ochoa scored higher on
intelligence tests given in 2003 than on those
given to him in 1995 and 1996. Evidence also
was presented which showed Ochoa had
learned to read and write while incarcerated
and suggested his ability to learn to read and
write likely contributed to his more current
test performance.
¶12 Counsel for Ochoa requested the trial
court instruct the jury that it must find Ochoa
was mentally retarded at the time of the
offense and the trial court denied the requested instructions. Ochoa argues that the focus of
the Court in Atkins was upon the moral culpability of the offender at the time of the crime
and the relevant constitutional inquiry is not
whether the offender is retarded at the
moment, but rather whether the offender was
retarded when the crime occurred. He asks this
Court to vacate the jury’s verdict because it
was rendered upon instructions which
required it to find Ochoa was presently
mentally retarded.
¶13 Although the Court in Atkins did not
specifically define “mental retardation” for the
individual States and left it to the States “the
task of developing appropriate ways to enforce
the constitutional restriction upon [their] execution of sentences,” there it referenced two
generally accepted clinical definitions. Atkins,
536 U.S. at 317, n. 22, 122 S.Ct. at 2250, n. 22.
Both definitions require mental retardation to
be present before the age of eighteen (18).
Atkins, 536 U.S. at 308, n. 3, 318, 112 S.Ct. at
2245, n. 3, 2250 (AAMR definition requires
mental retardation to “manifest” before age
eighteen; American Psychiatric Association’s
definition states the “onset must occur before”
eighteen (18)).
¶14 We disagree with Ochoa’s description of
mental retardation as a “fluid concept.” While
we do not dispute that a mentally retarded
person can learn and develop skills, that ability is limited and the ability to learn and to
adaptively function suggests the individual
Vol. 77 — No. 17 — 6/10/2006
was likely not mentally retarded in the first
place but fell into that borderline range or classification due to environmental or other factors
which affected present ability. The witness at
Ochoa’s trial acknowledged this when she testified that some people functioning at a low
level due to environment, education or impoverishment could move “above the level” of
mental retardation classification by increasing
his or her abilities to function. That Ochoa may
have had an IQ score within the range of 70 to
75 at the time of the crime is relevant but does
not prove mental retardation. “I.Q. tests alone
are not determinative of the issue of mental
retardation.” Myers, 2005 OK CR 22, ¶ 8, 130
P.3d at 268.
¶15 The requisite cognitive and behavioral
impairments attendant to mental retardation,
as defined by this Court in evaluating Eighth
Amendment claims, substantially limits one’s
ability to understand and process information,
to communicate, to learn from experience or
mistakes, to engage in logical reasoning, to
control impulses, and to understand the reactions of others. We do not dispute the fact that
a mentally retarded person can learn. However, a person who can learn beyond the accepted clinical definitions of mental retardation
does not fall within the definition of those persons who may avoid execution due to mental
retardation. The evidence presented at Ochoa’s
mental retardation jury trial showed he does
not function at a significantly sub-average
intellectual level that substantially limits his
ability to understand and process information,
to communicate, to learn from his mistakes, to
engage in logical reasoning, to control impulses, and to understand the reaction of others.
The jury was properly instructed it must find
Ochoa “is” mentally retarded, as opposed to
finding that he “was” mentally retarded at the
time of the crime.
¶16 In his third claim of error, Ochoa contends the trial was fundamentally unfair
because the jury learned of Ochoa’s prior convictions and because the jury saw Ochoa wearing orange jail overalls and a “shock sleeve.”
The record reflects Ochoa chose not to dress
out; and, following counsel’s request that the
trial court admonish him not to act inappropriately during the trial, Ochoa responded to the
trial court’s admonishments with obvious
upset. After the trial court advised Ochoa he
would be removed from the court room if he
were to be disruptive, Ochoa responded that
Vol. 77 — No. 17 — 6/10/2006
he was “being railroaded anyway, so it didn’t
matter to” him. At this point the trial court
asked the deputy to put on “the sleeve,” noting
that “it may ensure that he won’t behave inappropriately.” After the deputy left with Ochoa,
the trial court stated, “I’ve observed them with
that on. They don’t seem to be a problem.”
When Ochoa returned to the court room, counsel said Ochoa wanted to make a record on
“the sleeve.” The trial court asked, “he objects
to it?” Upon counsel’s affirmative response,
the trial court stated, “he was going to cause a
problem, now he’s not.”
¶17 The potential jurors were called and the
trial court informed the venire the case had “to
do with a criminal matter that you will not
hear about.” The trial court explained a deputy
was present because Ochoa was
in custody. So he’s not free to leave … So
he’s accompanied by a deputy all the time
because he’s in custody.
And he has been convicted of a crime that
we’re not going to tell you about at this
point in time, okay? … and there’s very
limited reasons why you might hear it during the trial, but probably not. But he’s
been convicted of a crime.
After a potential juror indicated his best friend
graduated from the police academy, the trial
court stated, “I don’t see any law enforcement
officers, but this is a criminal case, okay. Criminal cases are involved in this.” After a potential juror described being robbed at gunpoint
and said this was not that kind of case, the trial
court stated, “And that’s true, but it does have
criminal overtones to it.” After voir dire, before
court recessed for the day, the trial court noted
the breaks were a little bit longer, because
“Ochoa’s in custody and you’re eight floors
away from the coffee shop …” During voir dire,
the prosecutor also stated “You understand
he’s already been convicted of a crime,” and
reminded the jurors they were not going to
find out what Ochoa was convicted of and
might have “unanswered questions.”
¶18 Ochoa contends the jury should not
have received any information relating to his
custodial status and he should not have been
“forced” to proceed at trial in prisoner clothing
and the shock sleeve. Ochoa relies upon Deck v.
Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161
L.Ed.2d 953 (2005), and argues he was
deprived of due process and a fundamentally
1759
fair trial when the jury observed him in obvious restraint without being told why he was in
custody.
¶19 The jury’s knowledge that Ochoa was in
custody, that he had previously been convicted, and that the proceeding was related to a
criminal matter was not violative of Lambert v.
State, 2003 OK CR 11, 71 P.3d 30. While evidence relating to his criminal conviction and
sentence of death are not relevant to the proceeding, the jury’s knowledge that the proceeding was related to a criminal matter and
that Ochoa was in custody and had been convicted of a crime does not create the prejudicial
effect Lambert sought to avoid. Ochoa’s counsel was not ineffective for not objecting to the
trial court’s and the prosecutor’s remarks
informing the jury that Ochoa had been
convicted of a crime and/or that this was a
criminal related matter.
¶20 It is error to compel an accused to appear
before a jury in prison clothing where a timely
request has been made for civilian clothing.
Rhinehart v. State, 1980 OK CR 16, ¶ 8, 609 P.2d
781, 783. However here, the record shows
Ochoa’s decision to appear before the jury in
jail dress was his own. He was compelled by
no one but himself. We find no Fourteenth
Amendment violation where Ochoa himself
made the decision to appear in jail dress and
no request for civilian clothing appears in the
record. Estelle v. Williams, 425 U.S. 501, 512-513,
96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976).
¶21 Ochoa’s presence before the jury in the
shock sleeve is a more difficult matter. The
record does not show Ochoa’s counsel objected
to the use of such restraint, however Ochoa
himself repeatedly objected to its use. The Fifth
and Fourteenth Amendments prohibit the use
of physical restraints visible to a jury absent a
trial court determination, in the exercise of its
discretion, that the restraints are justified by a
state interest specific to a particular trial. Deck,
544 U.S. at 629, 125 S.Ct. at 2012. The Supreme
Court extended this legal principle beyond
guilt/innocence proceedings and reversed a
death sentence reached by a jury in a trial
where a defendant was shackled with leg
irons, handcuffs, and a belly chain during the
penalty stage of trial. Id. at 2014. Noting the
accuracy in decision-making is no less critical
in the penalty stage of a capital proceeding, the
Court stated the appearance of a defendant in
shackles during the penalty phase
1760
implies to a jury, as a matter of common
sense, that the court authorities consider
him a danger to the community … It also
almost inevitably affects adversely the
jury’s perception of the character of the
defendant. And it thereby inevitably
undermines the jury’s ability to weigh
accurately all relevant considerations …
when it determines whether a defendant
deserves death.
Id. (citations omitted).
¶22 Judicial hostility to shackling reflects its
concerns towards three fundamental legal
principles:
1. the criminal process presumes the
defendant is innocent until proven
guilty and visible shackling undermines the presumption of innocence
and the related fairness of the factfinding process;
2. the Constitution provides the accused
with a right to counsel to assist in his
defense and the use of physical
restraints diminishes that right by
interfering with the accused’s ability to
communicate with his lawyer and
assist in his defense; and
3. the routine use of shackles would
undermine a dignified judicial process
which demands the respectful treatment of the defendant.
Id. at 630-631, 125 S.Ct. at 2013. In Deck, the
latter two considerations guided the Court’s
decision. Id. at 632, 125 S.Ct. at 2014.
¶23 While the use of shackles or other
restraints is clearly not favored, the constitutional requirement against routine restraints is
not absolute. Id. A judge, in the exercise of discretion and taking into account the special circumstances of each proceeding, including
security concerns, may call for shackling. Id. at
633, 125 S.Ct. at 2014-2015. “But given their
prejudicial effect, due process does not permit
the use of visible restraints if the trial court has
not taken account of the circumstances of the
particular case.” Id. at 632, 125 S.Ct. at 2014.
¶24 In Oklahoma, Title 22, Section 15
provides
No person can be compelled in a criminal
action to be witness against himself; nor
can a person charged with a public offense
Vol. 77 — No. 17 — 6/10/2006
be subjected before conviction to any more
restraint than is necessary for his detention
to answer the charge, and in no event shall
he be tried before a jury while in chains or
shackles.
(emphasis added). This statutory right to be
free from shackles may be waived by a defendant who engages in disruptive, contemptuous or disrespectful behavior. Peters v. State,
1973 OK CR 443, ¶ 14, 516 P.2d 1372, 1374-1375.
In Phillips v. State, 1999 OK CR 38, ¶ 52, 989
P.2d 1017, 1033, where the appellant claimed
he was denied due process and the right to a
fair trial when he was forced to wear a stun
belt during trial, we held Section 15 “applicable to physical restraints such as a stunbelt.” Id.
at ¶ 54, 989 P.2d at 1034. After noting Phillips
had not waived his statutory right to be tried
free of physical restraints, this Court referred
to Phillips’ prior outburst at another court proceeding and his violent behavior in county
jails. Id. It noted “all parties agreed the stunbelt was not visible to the jury,” no evidence
showed Phillips’ hands, arms or legs were
physically restrained or that the stunbelt hampered his mental abilities. Id. at ¶ 55, 989 P.2d
at 1034. Absent such evidence, this Court
found the error did not deprive Phillips of a
fair trial or have a “substantial influence” on
the outcome of the trial. Id.
¶25 In Davis v. State, 1985 OK CR 140, 709
P.2d 207, when addressing a claim that the
defendant was improperly tried in leg shackles
in both stages of a capital murder trial, we held
the procedure violated 22 O.S. § 15 and, in the
absence of waiver, the trial court had no discretion in the matter, and the defendant should
not be handcuffed or shackled during the trial.
Id . at ¶ 3, 709 P.2d at 208. In Davis, the record
did not establish any disruptive or disrespectful conduct on appellant’s part justifying the
use of restraints and there was not one “scintilla of evidence that the appellant planned to
disrupt the trial.” Id. at ¶ 4, 709 P.2d at 209. The
record showed the appellant was shackled at
the direction of the county sheriff. Id. This
Court reversed the capital murder conviction
and sentence in Davis. Id. at ¶ 5, 709 P.2d at 209.
¶26 The State did not respond to this claim in
its Supplemental Brief and we therefore directed Respondent to answer this claim of error.
See Ochoa v. State, PCD 2002-1286 (Okl.Cr. January 31, 2006)(not for publication). The State
filed its Response on February 10, 2006.
Vol. 77 — No. 17 — 6/10/2006
¶27 Although Respondent admits Title 22,
Section 15 is applicable to the use of a “shock
sleeve,” it argues the statute is inapplicable to
this case because Ochoa was forced to wear the
sleeve at a mental retardation jury trial after he
had already been convicted. We do not agree.
The application of Section 15 logically extends
to any fact-finding trial processes. As the
Supreme Court found in Deck, a jury’s observation of a defendant in visible restraints
undermines its ability to weigh accurately all
relevant considerations. It implies the defendant is dangerous and almost assuredly affects
the jury’s perception of the defendant’s character. Although a defendant’s dangerousness has
nothing to do with a finding of mental retardation, speculation on the defendant’s character
based upon observation of visible restraints
diverts the jury’s attention from its fact-finding
mission – in this case, its consideration of the
evidence relevant to the determination of a
defendant’s mental retardation.
¶28 The State argues that even if this Court
finds the restrictions set forth in Section 15 to
be applicable to jury determinations on mental
retardation, no error occurred, because the trial
court acted within its discretion when it
ordered Ochoa to wear the shock sleeve. The
State submits the record discloses Ochoa
intended to disrupt the trial proceedings and
“thus, to maintain order during the proceedings, the trial court properly had a “shock
sleeve” placed on the Petitioner.” (Br. of
Appellee, pg. 7)
¶29 The transcripts show the trial court and
defense counsel were concerned with Ochoa’s
behavior. However, the record does not disclose why they were concerned nor does it
reflect Ochoa actually engaged in any violent,
disruptive, aggressive or inappropriate behavior prior to the trial court’s order requiring him
to wear the shock sleeve. At one point, following Ochoa’s repeated objection to wearing the
shock sleeve and after he asked “why are you
putting it on my arm,” the trial court responded “because you had told Ms. Rhone that you
were going to be disruptive …” No testimony
was taken from Ms. Rhone and nothing else
appears in the record to explain the trial
court’s concern.6 At one point, the trial court
told Ochoa the shock sleeve was “like insurance, precautionary.”
¶30 We agree with the State that it is the trial
judge’s responsibility to control the decorum
1761
of the courtroom. See Davis v. State, 1985 OK
CR 140, ¶¶ 1-2, 709 P.2d 207, 210 (Brett, J., specially concurring) However, this record does
not sufficiently establish that Ochoa was in fact
disruptive, violent or aggressive or that this
level of control was needed. The trial court
admitted its decision to put the shock sleeve on
Ochoa was “like insurance” and was precautionary in nature. The trial court’s statement
that Ochoa told someone he was going to be
disruptive was not sufficient to warrant the
action taken by the trial court and its order
requiring Ochoa to wear the shock sleeve constituted an abuse of discretion and violated 21
O.S.2001, § 15; Davis, 1985 OK CR 140, ¶ 4, 709
P.2d at 209; see e.g. In re L.B., 1982 OK 47, 645
P.2d 498, 500 (isolated attempt to kick at judge
after court interrupted defendant’s attempt to
promise the court he would behave was not
sufficient to warrant hand-cuffing defendant
during involuntary commitment proceeding);
U.S. v. Durham, 287 F.3d 1297, 1303-1308 (11th
Cir. 2002)(use of stun belts generally and
requirement of close judicial scrutiny).
¶31 The State argues the record does not
show the shock sleeve was visible to the jury or
that the jury knew what the shock sleeve was
for, so even if the trial court should not have
ordered Ochoa to wear it, no constitutional
error resulted. In Phillips, where the parties
agreed the stun belt was not visible to the jury
and the defendant was not physically
restrained and his mental abilities were not
hampered, this Court found the defendant was
not deprived of a fair trial and the violation of
22 O.S.2001, § 15 did not have a substantial
influence on the outcome of trial. Phillips, 1999
OK CR 38, ¶ 55, 989 P.2d at 1033.
¶32 Here the record does not show the shock
sleeve was visible to the jury. Even if it were
visible, we doubt the jury’s ability to see the
shock sleeve was any more prejudicial to
Ochoa than was the fact that the jury saw
Ochoa wearing his jail clothing and Ochoa
himself made the decision to dress out in jail
clothing. Ochoa does not claim the shock
sleeve prevented him from physically or mentally assisting his counsel at the mental retardation hearing. While this Court finds the trial
court erred and abused its discretion by ordering Ochoa to wear the shock sleeve, Ochoa has
not proven this error had a substantial influence on the outcome of the proceeding and has
not shown prejudice. See e.g., U.S. v. McKissick,
204 F.3d 1282, 1299 (10th Cir. 2000)(court will
1762
not presume prejudice where there was no evidence jurors noticed the stun belt).
¶33 In his last proposition of error, Ochoa
contends the cumulative effect of the errors
which occurred at his jury trial on mental
retardation resulted in a fundamentally unfair
proceeding. We do not agree. While the record
does not support the trial court’s decision
requiring Ochoa to wear the shock sleeve and
22 O.S.2001, § 15 was violated, Ochoa has not
shown he was prejudiced by that decision. As
noted above, Ochoa himself chose to dress out
in his jail clothing. As a result of that decision,
the jurors knew he was in custody. Nothing in
the record shows the shock sleeve was activated at any time during the trial and nothing in
the record suggests it prevented Ochoa from
participating and assisting his counsel.
¶34 Ochoa did not meet his burden of showing, by a preponderance of the evidence, that
he is mentally retarded. He presented only one
witness: a clinical psychologist who interviewed him, his family members, reviewed
records and administered psychological tests.
Although this witness testified Ochoa has significant deficiencies in communications and
functional academics, she did not testify that
he is mentally retarded. We are not persuaded
by the witness’s or Ochoa’s suggestion that he
might have been retarded at the time of his
arrest, and apparently the jury was not persuaded by that suggestion either. His ability to
learn and improve his intellectual functioning
in prison suggests his adaptability and that his
prior deficits were likely related to his poor
social and economic environment which affected his development.
¶35 The single error identified in this appeal
did not render Ochoa’s trial fundamentally
unfair or deprive him of due process. Where
only one error is identified and it does not warrant relief, there can be no error by accumulation. Hope v. State, 1987 OK CR 24, ¶ 12, 732
P.2d 905, 908.
DECISION
Ochoa’s Second Application for Post-Conviction Relief in a Death Penalty Case is DENIED
and his sentence of death is AFFIRMED. 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.
APPEARANCES AT TRIAL
Vol. 77 — No. 17 — 6/10/2006
Heidi Baier, Traci Rhone, Asst. Public Defenders,
OK CO. Public Defender, 320 Robert S. Kerr,
Oklahoma City, OK 73102, Attorneys For
Petitioner,
Pattye High, Asst. District Attorney, 320 Robert
S. Kerr, Oklahoma City, OK 73102, Attorney For
The State.
APPEARANCES ON APPEAL
James L. Hankins, Hankins Law Office, 119
North Robinson, Suite 320, Oklahoma Citry, OK
73102, Attorney For Petitioner,
W.A. Drew Edmondson, Attorney General of
Oklaoma, William R. Holmes, Assistant
Attorney General, 112 State Capitol Building,
Oklahoma City, OK 73105, Attorneys For State.
OPINION BY: C. JOHNSON, J.
CHAPEL, P.J. : CONCURS
LUMPKIN, V.P.J. : CONCURS IN RESULTS
A. JOHNSON, J.: CONCURS
LEWIS, J.: CONCURS
1. Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, cert. denied, 526 U.S.
1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999).
2. Ochoa v. State, PCD 97-1559 (Okl.Cr. August 4, 1998)(not for publication).
3. Ochoa v. Mullin, No. 02-6032 (10th Cir. 2002)
4. While the trial court’s findings of facts and conclusions of law
assist this Court in its decision, the jury is the finder of fact in this proceeding. Myers v. State, 2005 OK CR 22, ¶ 7, 130 P.3d 262, 267.
5. In Atkins, the Supreme Court stated “death is not a suitable punishment for a mentally retarded criminal . . .. Construing and applying
the Eighth Amendment in the light of our ‘evolving standards of
decency,’ we therefore conclude that such punishment is excessive and
that the Constitution ‘places a substantive restriction on the State’s
power to take the life’ of a mentally retarded offender.” Atkins, 536 U.S.
at 321, 122 S.Ct at 2252 (internal citation omitted).
6. This scintilla of evidence may be more than what was before this
Court in Davis, but it does not sufficiently disclose the reason for the
trial court’s concern.
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1763
LEGAL AID STAFF ATTORNEY
Legal Aid Services of Oklahoma is accepting Staff
Attorney applications for the following offices:
Clinton, Lawton, Norman, and Stilwell. Staff
Attorneys provide representation and other legal
services for low-income and elderly people.
Qualified applicants must have a commitment to
serving low-income and elderly people in addition
to excellent writing, advocacy, and legal research
skills. Applicants must have the ability to communicate effectively. This is an opportunity to help make
justice for all a reality. Staff attorney positions have
an entry level salary of $30,000 and more DOE.
Generous fringe benefits include health, dental, life,
and disability insurance as well as a pension plan
and other benefits. Application forms are available
at www.legalaidok.org or LASO Operations, 2901
Classen Boulevard, Suite 110, Oklahoma City, OK
73106. Send application, resume, and writing sample to the above address or fax 405-524-1257.
Applications will be accepted until June 19, 2006
and thereafter until filled. EOE
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1764
Vol. 77 — No. 17 — 6/10/2006
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
Thursday, June 1, 2006
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 and 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.
102,540 Thornton v. Morris & Grand Lake
Builders.
102,554 Rau v. Rau.
102,581 Leatherock v. Leatherock.
102,754 Wright’s Electric Heating & Air v.
Waskow et al.
102,802 City of Tulsa v. Raintree Estates.
102,832 Clinton v. Clinton.
103,101 Ford Motor Co. v. Jimmy R. Moore &
WCC.
103,106 Bryant v. Delaware Co. Friendship
Home & WCC.
103,255 Mortgage Electronic Registration v.
Woodcock et al.
103,272 Chesapeake Exploration v. Avalon
Exploration, Inc.
103,276 Rashidi v. Loggins et al.
103,281 Darrow v. Integris Health Inc.
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 B2, State Capitol, Oklahoma City, Oklahoma,
73105.
COURT this 1st day of June 2006
Vol. 77 — No. 17 — 6/10/2006
/s/
Joseph M. Watt
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, and Jane P.
Wiseman and Doug Gabbard, II. The judges sit
in three-judge panels which rotate periodically,
but all assigned cases will be decided by three of
the above named judges. Any party may seek
disqualification of any judge pursuant to
Okla.Sup.Ct.R. 1.175, 12 O.S. 2001, Ch. 15, App. 1
and 20 O.S. 2001 §§ 30.3, 1401 and 1402.
102,226 Sullivan v. Sullivan.
102,325 Ring v. Trustees for the Town of Cleo
Cemetry et al.
102,376 Dixon v. Gray.
102,481 Express Bus v. OK Employment
Security Comm et al.
102,907 Greer v. Sonic Automotive, Inc.
103,012 McKinney v. McKinney et al.
103,093 Clark v. Multiple Injury Trust Fund &
WCC.
103,099 Aguilar v. Calistro et al.
103,291 Clark et al v. Fragomeni et al.
103,329 Bernal v. Charter Co. Mutual Ins. Co.
103,349 Hornbeck v. Ray Stevens, Inc.
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 B2, State Capitol, Oklahoma City, Oklahoma,
73105.
COURT this 1st day of June 2006
/s/
Joseph M. Watt
CHIEF JUSTICE
1765
2006 OK CIV APP 52
MATERIAL SERVICE CORP.,
Plaintiff/Appellant, v. ROGERS COUNTY
COMMISSIONERS, Defendant/Appellee.
No. 102,496. March 29, 2006
APPEAL FROM THE DISTRICT COURT OF
ROGERS COUNTY, OKLAHOMA
HONORABLE DYNDA R. POST, JUDGE
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
Elizabeth C. Nichols, THE STRICKLAND LAW
FIRM, Tulsa, Oklahoma, for Plaintiff/Appellant,
Gene Haynes, District Attorney, Barry A. Farbro,
Assistant District Attorney, Claremore, Oklahoma, for Defendant/Appellee.
OPINION BY ROBERT
PRESIDING JUDGE:
DICK
BELL,
¶1 Plaintiff/Appellant, Material Service
Corp., appeals from the trial court’s grant of
summary judgment in favor of Defendant/
Appellee, Board of County Commissioners of
Rogers County, in Plaintiff’s action for intentional interference with a contract, intentional interference with a prospective business and unconstitutional taking of property (inverse condemnation). For the reasons set forth below, we
affirm in part and reverse in part the trial court’s
judgment, and remand this matter for further
proceedings consistent with this opinion.
¶2 Plaintiff has a lease to mine limestone on
certain lands in Rogers County. Prior to obtaining the lease and applying for a mining permit
from the Oklahoma Department of Mines, Plaintiff ascertained from the City of Claremore —
Rogers County Metropolitan Area Planning
Commission (Planning Commission) that no
applicable county-level zoning regulations were
in effect on the subject property. Thereafter, the
Planning Commission and the Defendant County Commissioners voted to annex the subject
lands. The Planning Commission, which has
jurisdiction for zoning and other land use regulations in the annexed area, subsequently
declared Plaintiff’s land was subject to zoning
regulations that prohibit mining.
¶3 Plaintiff sued for declaratory judgment,
alleging the Planning Commission failed to give
proper notice of the annexation proceedings.
Defendant was granted summary judgment at
the trial level, but the Court of Civil Appeals
ruled that notice of the public hearing was constitutionally defective. Material Serv. Corp. v. City
1766
of Claremore, No. 98,218 (Okla. Ct. Civ. App. May
9, 2003) (unpublished opinion). On remand, the
trial court held the attempted annexation was
void.
¶4 Plaintiff then filed the instant suit for intentional interference with its contract rights and its
prospective mining business, and for inverse
condemnation. The trial court granted Plaintiff’s
motion for partial summary judgment on the
narrow issue that the zoning restriction on the
subject property was invalid. Defendant also
moved for summary judgment, arguing it was
immune from tort liability under the Governmental Tort Claims Act, 51 O.S. 2001 §151 et seq.,
and that there had been no “taking” of Plaintiff’s
property sufficient to support an inverse condemnation action. The trial court granted summary judgment in favor of Defendant. The trial
court specifically found Defendant’s attempts to
annex and zone the subject property were legislative functions immune from suit under the
Act. The court’s order did not specify why
Defendant was granted summary judgment on
Plaintiff’s inverse condemnation claim. From
said judgment, Plaintiff appeals. The matter
stands submitted for accelerated appellate
review on the trial court record pursuant to Rule
13(h), Rules for District Courts, 12 O.S. Supp.
2002, Ch. 2, App. 1, and Rule 1.36, Oklahoma
Supreme Court Rules, 12 O.S. Supp. 2003, Ch. 15,
App.
¶5 This Court’s standard of review of a trial
court’s grant of summary judgment is de novo.
Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80, ¶2,
921 P.2d 350, 351-52. Summary judgment is
proper when the evidentiary materials “establish that there is no genuine issue as to any material fact, and that the moving party is entitled to
judgment as a matter of law.” Shelley v. Kiwash
Elec. Co-op., Inc., 1996 OK 44, ¶15, 914 P.2d 669,
674. When this Court reviews the trial court’s
grant of summary judgment, all inferences and
conclusions drawn from the evidence must be
viewed in the light most favorable to the party
opposing the motion. Id.
¶6 We first address Plaintiff’s propositions of
error regarding its tort causes of action. Title 51
O.S. 2001 §155(1) provides, “The state or a political subdivision shall not be liable if a loss or
claim results from . . . Legislative functions; . . .”
In McCracken v. City of Lawton, 1982 OK 63, 648
P.2d 18, the Court held the city was immune
from liability for enacting a zoning ordinance
which severely restricted the capacity of businesses to use land in the affected area.
Vol. 77 — No. 17 — 6/10/2006
By the provisions of [§155(1)] neither a
political subdivision, nor its officials, may
be subject to liability for any acts or omissions in performing a legislative function.
The terms of immunity are clear and
absolute. They admit no exceptions.
McCracken at ¶5, 648 P.2d at 19-20. The annexation and zoning of the subject property in the
present case were legislative functions. Accordingly, Defendant is immune from tort liability
under the Act.
¶7 Plaintiff’s third cause of action — inverse
condemnation — is not governed by the Governmental Tort Claims Act, but is a special statutory proceeding for the purpose of ascertaining
the compensation to be paid for appropriated
property. Curtis v. WFEC Railroad Co., 2000 OK
26, ¶13, 1 P.3d 996, 999. Article 2, §24 of the
OKLAHOMA CONSTITUTION provides in relevant
part: “Private property shall not be taken or
damaged for public use without just compensation. Just compensation shall mean the value of
the property taken, and in addition, any injury
to any part of the property not taken.” “[T]he
required payment for ‘just compensation’ is not
limited to property ‘taken,’ but extends also to
property ‘damaged.’” Williams v. State ex rel.
Dept. of Transp., 2000 OK CIV APP 19, ¶14, 998
P.2d 1245, 1249. At issue in the present case is
whether a taking (or damage) occurred so as to
expose Defendant to liability for failing to justly
compensate Plaintiff pursuant to Art. 2, §24.
¶8 Defendant argues there was no “taking” of
Plaintiff’s property sufficient to invoke liability
because Defendant did not physically intrude
upon the property and Plaintiff made no showing of diminution of value.1 We disagree that
these are the only two tests for determining
whether Plaintiff has established a case for
inverse condemnation. “Courts have generally
recognized two basic grounds that support
inverse condemnation actions: physical taking
and the enactment of regulations that substantially impair the property’s usefulness.” Calhoun
v. City of Durant, 1998 OK CIV APP 152, ¶11, 970
P.2d 608, 612. “Regulation of a property’s uses
may . . . constitute a taking if the regulation (an
overt act exercising dominion or control over the
property) acts to destroy or impair the land’s
usefulness.” Id. at ¶13, 970 P.2d at 613. “[T]here
are limits to the exercise of the police power in
regard to the regulation of property and . . . ‘if
regulation goes too far it will be recognized as a
taking.’” Edmondson v. Pearce, 2004 OK 23, ¶20,
91 P.3d 605, 608, quoting Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed.
322 (1922).
Vol. 77 — No. 17 — 6/10/2006
¶9 We recognize “some impairment of the
land’s usefulness is not enough [to establish
damages under Art. 2, §24]. There must be substantial impairment resulting from an overt governmental act resulting in an assertion of dominion and control over property.” Id. at ¶15, 970
P.2d at 613. Accord Mattoon v. City of Norman,
1980 OK 137, ¶11, 617 P.2d 1347, 1349. Moreover,
Oklahoma courts have consistently held that the
question of whether a taking constitutes substantial interference with the use and enjoyment
of property is for the trier of fact to resolve. Mattoon at ¶11, 617 P.2d at 1349; Henthorn v. Okla.
City, 1969 OK 76, ¶15, 453 P.2d 1013, 1016; Calhoun at ¶13, 970 P.2d at 613; Underwood v. State ex
rel. Dept. of Transp., 1993 OK CIV APP 40, ¶17,
849 P.2d 1113, 1116. The court in Williams specifically held, “the determination of a taking must
be made by the trier of fact and is not susceptible to summary disposition in inverse condemnation actions.” Williams, 2000 OK CIV APP 19at
¶36, 998 P.2d at 1252, citing Oxley v. City of Tulsa,
1989 OK 166, ¶15, 794 P.2d 742, 746, and Mattoon
at ¶10, 617 P.2d at 1349. In the present case,
Plaintiff maintains it suffered economic losses
by being prohibited from mining the subject
property for three years. Whether that prohibition substantially impaired Plaintiff’s lease is a
question to be resolved by a fact-finder after a
trial on the merits.
¶10 On the basis of the foregoing and after de
novo review of the record, we hold there is no
genuine issue as to any material fact regarding
Plaintiff’s two tort causes of action and that
Defendant is entitled to judgment with respect
to those actions as a matter of law. However, that
portion of the trial court’s judgment relating to
Plaintiff’s cause of action for inverse condemnation must be reversed and remanded for further
proceedings consistent with this opinion.
¶11 AFFIRMED IN PART, REVERSED IN
PART AND REMANDED.
HANSEN, J., and JOPLIN, J., concur.
1. “The term property as used in our Constitution regarding the
taking of private property for public use for which just compensation
must be paid includes not only real estate held in fee, but also easements, personal property and every valuable interest which can be
enjoyed and recognized as property.” Curtis, 2000 OK 26 at ¶13, 1 P.3d
996 at 999-1000. Perkins Whistlestop, Inc. v. State ex rel. Dept. of Transp.,
1998 OK CIV APP 7, ¶10, 954 P.2d 1251, 1254, specifically noted, “A
leasehold interest may be subject to a taking and the leaseholder may
have a cause of action in inverse condemnation.”
1767
2006 OK CIV APP 53
ORDER
Approved for Publication
by the Supreme Court
April 17, 2006
SAVE AD VALOREM FUNDING FOR
STUDENTS, an unincorporated association,
Plaintiff/Appellant, v. THE OKLAHOMA
DEPARTMENT OF ENVIRONMENTAL
QUALITY, THE KAY COUNTY ASSESSOR,
and THE OKLAHOMA TAX
COMMISSION, Defendants, and THE
STATE BOARD OF EQUALIZATION and
CONOCO PHILLIPS COMPANY,
Defendants/Appellees.
No. 102,678. December 25, 2006
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE PATRICIA G. PARRISH,
TRIAL JUDGE
REVERSED AND REMANDED
Marjorie McCullough Galt, Traci Ballard, Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Cara S. Nicklas, Oklahoma City, Oklahoma, for
Defendant, Oklahoma Tax Commission,
Honorable Drew Edmondson, ATTORNEY
GENERAL, Lynn C. Rogers, ASSISTANT
ATTORNEY GENERAL, Oklahoma City, Oklahoma, for Defendant/Appellee, Oklahoma State
Board of Equalization,
William K. Elias, Linda Jo Blan-Byford, ELIAS,
BOOKS, BROWN & NELSON, P.C., Oklahoma
City, Oklahoma, for Defendant/Appellee,
ConocoPhillips Company.
OPINION BY CAROL M. HANSEN, Judge:
¶1 Plaintiff/Appellant, Save Ad Valorem
Funding for Students (SAVE), an unincorporated association, seeks review of the trial court’s
summary determination that 68 O.S.Supp. 2004
§§2817(E) and 2817.3, which provide for the
exclusion of the value of an oil refinery’s investment in desulphurization equipment from the
capitalization used in determining fair market
value for ad valorem tax purposes, are constitutional. We reverse, holding the statutes violate
the Oklahoma Constitution, Article 5, §50, and
Article 10, §8, because they create an ad valorem
tax exemption and allow tangible personal
property to be assessed for ad valorem taxation
at less than ten percent of its value without the
voters’ approval.
1768
¶2 SAVE sued the Oklahoma Department of
Environmental Quality (DEQ), the Kay County
Assessor (Assessor), the Oklahoma Tax Commission (OTC), the State Board of Equalization
(SBOE), and Conoco Phillips Company (Refinery), seeking a declaratory judgment that 68
O.S.Supp. 2004 §§2817(E) and 2817.3 are in conflict with the Oklahoma Constitution. It alleged
its membership included more than 300 school
districts, the Oklahoma Council for Oklahoma
School Administration, the Oklahoma State
School Boards Association, and the Organization of Rural Oklahoma Schools. SAVE alleged
its pecuniary interests were injured by application of the statute because ad valorem taxes provide funding for public schools. In particular, it
alleged Refinery had received an assessment
exclusion on $100,754,780.00 of its capital investment in desulphurization property, and that
property was not assessed for ad valorem tax
purposes.
¶3 Assessor answered, stating she had complied with the statutes, but took no position as to
their constitutionality, stating she was without
knowledge to admit or deny the allegations in
the petition. The remaining defendants filed
motions to dismiss instead of answering. SBOE
and DEQ filed a joint motion to dismiss, asserting the petition failed to state a claim upon
which relief may be granted because the statutes
were not unconstitutional. They also asserted
they should be dismissed because they were not
necessary parties. Refinery moved to dismiss on
the grounds the petition failed to state a claim
upon which relief may be granted because the
statutes were constitutionally valid exercises of
the Legislature’s power to classify property and
prescribe methods of valuation for purposes of
ad valorem taxation. OTC moved to dismiss on
the grounds it was not a necessary party and
there was no justiciable controversy because the
Legislature had the power to exempt desulphurization property from taxation. SAVE responded
and objected.
¶4 At hearing on the motions to dismiss, the
trial court sought clarification as to the issues
before the court. The parties agreed they intended for the trial court to reach the merits of the
constitutionality of the challenged statutes, as
well as the standing and necessary party issues,
and that its ruling would be dispositive of the
case. The trial court found SAVE had standing to
bring the action and OTC and SBOE were proper parties defendant. It dismissed DEQ as a
party.1 It denied OTC’s motion to dismiss based
on the standing and necessary party issues. The
trial court granted the motions to dismiss of
Vol. 77 — No. 17 — 6/10/2006
Refinery and SBOE based on its finding the challenged statutes, 68 O.S.Supp. 2004 §§2817(E) and
2817.3, were constitutional.
¶5 SAVE 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. The trial court’s
ruling was in effect a summary disposition of
SAVE’s request for declaratory judgment, and
disposed solely of questions of law. Therefore,
we will review the trial court’s decision under a
de novo standard. Robinson v. Texhoma Limestone,
Inc., 2004 OK 50, 100 P.3d 673, 675.
¶6 In considering a statute’s constitutionality,
our role is limited to a determination of the
validity or invalidity of the legislative provision.
We will not concern ourselves with the statute’s
propriety, desirability, wisdom, or practicality. It
is the Legislature’s role to declare Oklahoma’s
fiscal policy, limited only by specific constitutional prohibitions. We will indulge every presumption in favor of the constitutionality of a
statute. If it is subject to two interpretations, only
one of which is constitutional, we are bound to
give the statute an interpretation that will render
it constitutional. A party challenging the constitutionality of a statute has a heavy burden of
showing constitutional infirmity beyond a
reasonable doubt. Fent v. Oklahoma Capitol
Improvement Auth., 1999 OK 64, 984 P.2d 200, 204.
¶7 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 Constitution authorizes the Legislature to classify property for purposes of taxation and to provide for
the valuation of different classes by different
means or methods. Okla. Const. Art. 10, §22.
However, it prohibits the Legislature from passing any law exempting property from taxation
except as otherwise provided in the Constitution. Okla. Const. Art. 5, §50.2 The Oklahoma
Supreme Court has interpreted these sections
together to mean that the Legislature may not
grant ad valorem tax exemptions not recognized
by the Constitution, but it may withdraw a class
of property from ad valorem taxation if it substitutes another form of taxation. In Re Gross Production Tax of Wolverine Oil Co., 1915 OK 792, 154
P. 362.3 For example, the gross production tax is
a tax on minerals in lieu of ad valorem tax. Id.,4
and 68 O.S.Supp. 2005 §1001(R).
¶8 In In Re Assessment of Chickasha Cotton Oil
Co., 1920 OK 339, 194 P. 215, the Court considered the constitutionality of a statute substitutVol. 77 — No. 17 — 6/10/2006
ing an income tax for ad valorem tax on raw
farm products. It reasoned that the Constitution
does not exempt raw products from taxation,
and therefore the statutory exemption must fail
unless the Legislature otherwise provided for all
raw farm products to be taxed. Because raw
products were not subject to taxation if they
were in the hands of one not paying an income
tax, the Court concluded the ad valorem tax
exemption for raw products was unconstitutional. Id. at 216. The Court also has struck down an
ad valorem tax exemption for cotton mills as
violative of Art. 5, §50. State v. Pioneer Mills, 1926
OK 652, 250 P. 120.
¶9 If the Legislature does not provide a substitute tax, property is taxed ad valorem. Article 10,
§8 specifies that except as otherwise provided in
Article 10,
[A]ll property which may be taxed ad
valorem shall be assessed for taxation as
follows:
1. Tangible personal property shall not be
assessed for taxation at less than ten percent
(10%) nor more than fifteen percent (15%) of
its fair cash value, estimated at the price it
would bring at a fair voluntary sale;
2. Real property shall not be assessed for
ad valorem taxation at a value less than
eleven percent (11%) nor greater than thirteen and one-half percent (13.5%) of its fair
cash value for the highest and best use....
This section is “a prohibition against undervaluation of property when it is taxed ad valorem.”
In re Diehr, 1935 OK 1015, 50 P.2d 725, 728. While
the Legislature may specify valuation means
and methods, it may not mandate the undervaluation of property when taxing based on value.
It may avoid the restriction of Art. 10, §8 by taxing based on a measurement other than value,
such as income from the property. Id.
¶10 The statutes under challenge in this case
are part of the Ad Valorem Tax Code, 68 O.S.
2001 §2801 et seq. Section 2817(E) provides,
The value of investment in property used
exclusively by an oil refinery that is used
wholly as a facility, device or method for the
desulphurization of gasoline or diesel fuel
as defined in Section 2817.3 of this title shall
not be included in the capitalization used in
the determination of fair market value of
such oil refinery if such property would
qualify as exempt property pursuant to Section 2902 of this title, whether or not an
application for such exemption is made by
an otherwise qualifying manufacturing con-
1769
cern owning the property described by
Section 2817.3 of this title.
Without using language of exemption, this section directs the assessor to exclude the value of
desulphurization equipment from the valuation
of a refinery’s property. Section 2817.3 implements §2817(E) by providing a procedure to
apply for “exclusion” of the property. This
exclusion is indistinguishable from an exemption. By withdrawing the equipment from ad
valorem taxation, the statutes create an ad valorem tax exemption. They do not provide a substitute tax. Sections 2817(E) and 2817.3 therefore
violate the Oklahoma Constitution, Art. 5, §50.
Because these statutes allow refineries taxed ad
valorem to be assessed at less than ten percent of
its fair cash value, they violate Art. 10, §8.
¶11 SBOE and Refinery argue the statute
merely specifies a method of valuation rather
than creating an exemption. Refinery contends
the desulphurization equipment is required by
Environmental Protection Agency rules, 40
C.F.R. Parts 80, 85, and 86, to reduce the sulfur
content of gasoline and diesel fuel, but does not
increase the productive capacity of the refinery
or enhance the value of the product. Therefore, it
argues, the challenged statutes are merely a legislative determination the costs incurred to
install mandatory desulphurization equipment
do not increase the price a knowledgeable willing buyer would pay for the refinery.
¶12 We agree the Legislature has broad powers under Okla. Const. Art. 10, §22 to prescribe
the methods for valuing different classes of
property. It exercised those powers in the Ad
Valorem Tax Code by defining three approaches
for the valuation of property:
14. “Cost approach” means a method used
to establish the fair cash value of property
involving an estimate of current construction cost of improvements, subtracting
accrued depreciation and adding the value
of land;
...
20. “Income and expense approach”
means a method to estimate fair cash value
of a property by determining the present
value of the projected income stream;
...
25. “Sales comparison approach” means
the collection, verification, and screening of
sales data, stratification of sales information
for purposes of comparison and use of such
information to establish the fair cash value
of taxable property;...
1770
68 O.S. 2001 §2802. The parties agree desulphurization equipment is personal property. Under
Tax Commission rules, county assessors use valuation schedules in estimating the fair cash
value of business personal property. OAC
710:10-2-1(a). However, the “actual value of any
particular asset may be affected by conditions or
use”, and use of the schedules does not “relieve
property owners or assessing officials of their
obligations by law to report, value, or assess personal property at its fair cash value.” OAC
710:10-2-1(d). The valuation schedules are based
on average prices for new and used equipment,
and therefore appear to apply the sales comparison approach to business personal property.
The Legislature is free to specify a different valuation method for a class of property. However,
in statutorily excluding the value of desulphurization equipment from ad valorem taxation, the
Legislature went beyond specifying a valuation
method. Instead, it prohibited valuation of
desulphurization equipment. Therefore, we are
unable to construe the challenged statutes as
merely specifying a method of valuation. The
Legislature’s action is beyond its powers under
the Oklahoma Constitution.
¶13 We note the Appellees do not attempt to
qualify the exclusion as an exemption under 68
O.S.Supp. 2005 §2902. Section 2817(E) requires
that the desulphurization equipment “qualify as
exempt property pursuant to Section 2902” in
order to be eligible for the valuation exclusion.
Section 2902 implements the ad valorem tax
exemption in Okla.Const. Art. 10, §6B for “new,
expanded or acquired manufacturing facilities
for a period of five (5) years.” However, §6B
directs the Legislature to provide reimbursement to schools and other entities for revenues
lost to those entities as a result of the exemption.
The Legislature has neither limited the desulphurization equipment exclusion to five years
nor provided reimbursement for revenues lost
to schools and others. Therefore, we are unable
to qualify the exclusion as an exemption under
Okla.Const. Art. 10, §6B and 68 O.S.Supp. 2005
§2902. However, nothing in this opinion prevents an eligible refinery from obtaining the
exemption provided by Art. 10, §6B.
¶14 For the foregoing reasons, we hold 68
O.S.Supp. 2004 §§2817(E) and 2817.3 are unconstitutional. We REVERSE the trial court’s summary determination and REMAND with
instructions to enter judgment in favor of SAVE.
SAVE’s motion for oral argument and submission of briefs is denied.
JOPLIN, P.J., and BUETTNER, C.J., concur.
Vol. 77 — No. 17 — 6/10/2006
1. Refinery’s motion to dismiss was based solely on the constitutionality issue, not on whether it was a proper party defendant. Assessor did not participate in the hearing and the trial court made no finding as to whether it was a proper party defendant.
2. We note that the issue of amending the Oklahoma Constitution
Article 10 to exclude pollution control property from ad valorem taxation was put to a vote of the people on November 3, 1998. It failed.
3. See also Home-Stake Production Co. v. Bd. of Equalization of Seminole Co., 1966 OK 115, 416 P.2d 917, 922 (“The Constitution, Art. V §50,
forbids legislative exemption of any property from taxation other than
property enumerated under Constitution, Art. X §6. The Legislature
may substitute one form of taxation for another, since there is no positive requirement that property be taxed upon an ad valorem basis.”).
4. Wolverine Oil was overruled in In re Skelton Lead & Zinc Company’s Gross Production Tax for 1919, 1921 OK 121, 197 P. 495, 498, which
held that the gross production tax was a property tax, but in Apache
Gas Products Corp. v. Okla. Tax Com’n, 1973 OK 34, ¶ 18, 509 P.2d 109,
113-114, and Samson Hydrocarbons Co. v. Okla. Tax Com’n, 1998 OK 82,
976 P.2d 532, 536 n. 5, the Oklahoma Supreme Court specifically recognized that Wolverine Oil, not In re Skelton, accurately stated Oklahoma law that the gross production tax is a tax in lieu of property
taxes.
2006 OK CIV APP 54
In the Matter of the Income Tax Protest of
Casey Dean Alani. CASEY DEAN ALANI,
Protestant/Appellant, v. OKLAHOMA TAX
COMMISSION, Respondent/Appellee.
Case No. 101,068. December 27, 2005
APPEAL FROM THE OKLAHOMA TAX
COMMISSION
AFFIRMED
Herbert Howell Blount, Jr., Bryan, Texas, for
Protestant/Appellant,
Douglas B. Allen, GENERAL COUNSEL, Sean
R. McFarland, J.L. Miller, ASSISTANT GENERAL COUNSEL, OKLAHOMA TAX COMMISSION, Oklahoma City, Oklahoma, for Respondent/Appellee.
OPINION BY JANE P. WISEMAN, JUDGE:
¶1 Casey Dean Alani (Protestant), a nonresident of Oklahoma, seeks review of an order of
the Oklahoma Tax Commission denying a
protest to the Oklahoma Tax Commission’s
demand that Protestant file an income tax
return in regard to royalty income received
from oil and gas property located in Oklahoma. The issue on appeal is whether the
Oklahoma Tax Commission (OTC) has jurisdiction to impose and collect income tax from
a nonresident on oil or gas royalty income generated from Oklahoma property. We answer in
the affirmative and affirm the OTC’s order.
FACTS AND PROCEDURAL HISTORY
¶2 Upon receiving information that Protestant had sufficient royalty income in 1991 to
require filing an income tax return, the
OTC/Income Tax Division, on February 3,
Vol. 77 — No. 17 — 6/10/2006
1995, sent Protestant a letter advising him of
the need to file a tax return. The letter further
advised Protestant that 68 O.S. §2369(D)
authorizes the OTC “to order all production
payments withheld upon a determination that
a person has failed to file a state income tax
return or to pay state income tax.” The letter
stated that Protestant was required to file a
return within 30 days.
¶3 Protestant responded with a letter
requesting a hearing, asserting the OTC had no
right to collect income tax from him as a nonresident. Although Protestant admitted in the
letter that he receives royalty income from
property located in Oklahoma, he argued that
the OTC has no personal jurisdiction to impose
on or collect an income tax from him.
¶4 After several continuances, the protest
was heard on September 23, 1997, by an
administrative law judge. Protestant again
admitted at the hearing that he receives royalty income from oil or gas leases in Oklahoma.
With permission from the administrative law
judge, the OTC filed a supplemental brief
addressing issues that had been raised in the
hearing.
¶5 On April 2, 2004, the administrative law
judge issued findings of fact and conclusions
of law, ultimately concluding that “royalties
received by nonresidents as a result of their
ownership of a mineral interest in land within
Oklahoma are properly subject to Oklahoma
income tax.” The OTC adopted the administrative law judge’s findings and recommendations on July 9, 2004. Protestant seeks review of
the OTC’s order.
STANDARD OF REVIEW
¶6 Where a party is a nonresident, the
record on appeal must affirmatively show the
contacts required to satisfy due process. Conoco Inc. v. Agrico Chem. Co., 2004 OK 83, ¶ 20, 115
P.3d 829, 835. “On de novo review, this Court
will canvass the record for proof that the nonresident party had sufficient contacts with the
state to assure that traditional notions of fair
play and substantial justice would not be
offended if this state exercised in personam
jurisdiction.” Id.
ANALYSIS
¶7 Protestant argues that the State of Oklahoma, through the OTC, does not have the
authority to tax his income or enforce the tax
1771
because he is a not a resident of Oklahoma
and, therefore, the OTC does not have personal jurisdiction over him. According to Protestant’s argument, the OTC’s actions violate due
process.
¶8 The Oklahoma Tax Code provides for
taxing income of nonresidents attributable to
the “ownership of any interest in real or tangible personal property in this state.” 68 O.S.1991
§2362(1)(a). According to the statute in effect in
1991, every nonresident individual having
annual Oklahoma gross income of $1,000 or
more was required to file a return. 68 O.S.1991
§2368(A)(4). If a person who receives production payments, including royalty payments,
fails to file an income tax return or pay income
tax, the OTC may issue an order to withhold
future production payments. 68 O.S.1991
§2369(D)(1).
¶9 The United States Supreme Court has on
several occasions addressed the issue of a
state’s jurisdiction to tax a nonresident. In Shaffer v. Carter, 252 U.S. 37, 40 S. Ct. 221 (1920), the
nonresident taxpayer protested the Oklahoma
state auditor’s attempts to assess and collect
income taxes from him. The taxpayer owned,
developed, and operated a number of oil and
gas mining leases and owned certain oil-producing land. He argued that, under the due
process clause of the Fourteenth Amendment
to the United States Constitution, Oklahoma
did not have jurisdiction to levy a tax upon the
income of nonresidents and that the lien on his
property was invalid because it was imposed
on all his real and personal property without
regard to its relation to the production of his
income. The Supreme Court rejected both
arguments.
¶10 The Court held that states have “complete dominion over all persons, property, and
business transaction within their borders; they
assume and perform the duty of preserving
and protecting all such persons, property, and
business, and, in consequence, have the power
normally pertaining to governments to resort
to all reasonable forms of taxation in order to
defray the governmental expenses.” Id. at 50,
40 S. Ct. at 224-25. States may therefore tax the
land as well as the crop, the tree as well as the
fruit, the mine as well as the product, and the
business as well as the profit derived from it.
Id. at 50-51, 40 S. Ct. at 225. This right to tax
applies equally to “incomes accruing to nonresidents from their property or business with1772
in the state.” Id. at 52, 40 S. Ct. at 225. The
Court reasoned:
[T]he very fact that a citizen of one state
has the right to hold property or carry on
an occupation or business in another is a
very reasonable ground for subjecting such
nonresident, although not personally, yet
to the extent of his property held, or his
occupation or business carried on therein,
to a duty to pay taxes not more onerous in
effect than those imposed under like circumstances upon citizens of the latter
state.
Id. at 53, 40 S. Ct. at 226.
¶11 The Court also determined that Oklahoma had jurisdiction to enforce the income
tax. The Court held:
[I]t is evident that the lien will rest upon
the same property interests which were the
source of the income upon which the tax
was imposed. The entire jurisdiction of the
state over appellant’s property and business and the income that he derived from
them — the only jurisdiction that it has
sought to assert — is a jurisdiction in rem;
and we are clear that the state acted within
its lawful power in treating his property
interests and business as having both unity
and continuity.
Id. at 59, 40 S. Ct. at 228.
¶12 In addressing the issue of taxation of
income of nonresidents, the Supreme Court
has focused on the connection that the income
has with the state as well as the protections
provided by the states. In International Harvester Co. v. Wisconsin Department of Taxation,
322 U.S. 435, 64 S. Ct. 1060 (1944), the state of
Wisconsin imposed a tax on income derived
from dividends paid to stockholders, including nonresidents, as measured by income
earned by the corporation in Wisconsin. The
Supreme Court upheld the tax as valid because
“[a] state may tax such part of the income of a
non-resident as is fairly attributable either to
property located in the state or to events or transactions which, occurring there, are subject to
state regulation and which are within the protection of the state and entitled to the numerous other benefits which it confers.” Id. at 44142, 64 S. Ct. at 1064 (emphasis added).
¶13 Appellate courts in other jurisdictions
have likewise upheld taxation of nonresidents
Vol. 77 — No. 17 — 6/10/2006
for income earned from various sources. For
example, in Couchot v. State Lottery Commission,
659 N.E.2d 1225 (Ohio 1996), the Ohio
Supreme Court upheld the taxation of annual
lottery payments made to a nonresident who
had purchased a winning Ohio Super Lotto
ticket. Tracking the language of relevant decisions from the United States Supreme Court,
the Ohio Supreme Court upheld the tax
because the income derived from participation
in the Ohio lottery; the lottery is exclusively
within the power, dominion, and control of
Ohio; and Ohio had incurred social and governmental costs in generating the income of
which the winner was the beneficiary. Id. at
1229. The Court concluded, “Certainly, the
state of Ohio has given something for which it
can ask return.” Id. See also Kulick v. Dep’t of
Revenue, 624 P.2d 93 (Or. 1981) (taxation of nonresidents’ shares of both distributed and
undistributed income of Subchapter S corporation); Bridges v. Autozone Props., Inc., 900 So. 2d
784 (La. 2005) (tax on dividends received from
real estate investment trust and attributable to
rent received on Louisiana property); Borden
Chems. & Plastics, L.P. v. Zehnder, 726 N.E.2d 73
(Ill. App. Ct. 2000) (taxation of distributable
income earned in Illinois); Geoffrey, Inc. v. South
Carolina Tax Comm’n, 437 S.E.2d 13 (S.C. 1993)
(taxation of trademark royalty income derived
from sales).
¶14 The tax at issue in the case at bar is a tax
on Protestant’s royalty income attributable to
oil or gas production from property located in
Oklahoma. 68 O.S.1991 §2362(1)(a). It is a tax
on income fairly attributable to property located in Oklahoma. Oklahoma has assumed the
duty of preserving and protecting oil and gas
property located in Oklahoma, and it has
passed legislation regulating the production of
oil and gas. Oklahoma has the right to tax
Protestant’s income generated from oil or gas
produced on Oklahoma land, the right to
require Protestant to file a return on that
income, and the right to enforce the tax
through reservation of future royalty
payments attributable to the same property.
¶15 Relying on International Shoe Co. v. State
of Washington, 326 U.S. 310, 66 S. Ct. 154 (1945),
Protestant argues that personal jurisdiction is
absent because OTC has not shown that he has
“minimum contacts” with Oklahoma. International Shoe, however, did not overrule Shaffer v.
Carter, 252 U.S. 37, 40 S. Ct. 221 (1920), or its
progeny; in particular it did not overrule the
Vol. 77 — No. 17 — 6/10/2006
principle that a state may tax income that is
fairly attributable to property located within
its borders. The Supreme Court stated that the
due process clause “does not contemplate that
a state may make binding a judgment in personam arising against an individual or corporate defendant with which the state has no contacts, ties, or relations.” International Shoe, 326
U.S. at 319, 40 S. Ct. at 160 (emphasis added).
In the case at bar, Protestant has a minimum or
sufficient contact, tie, or relation with Oklahoma due to his ownership of a royalty interest in oil and gas located on Oklahoma land
and his receipt of income attributable to that
land. It is “reasonable and just according to our
traditional conception of fair play and substantial justice” to permit Oklahoma to tax income
derived from its land. Cf. id. at 320, 66 S. Ct. at
160; see also Conoco Inc. v. Agrico Chem. Co., 2004
OK 83, ¶ 19, 115 P.3d 829, 835.
¶16 Protestant further argues that he did not
receive constitutionally adequate notice
because he “was not personally served, nor
was notice sent by registered mail.” The OTC
sent Protestant a letter on February 3, 1995,
advising him that he had received sufficient
income to require the filing of a tax return. The
letter further advised Protestant that, pursuant
to 68 O.S.1991 §2369(D), the OTC could order
withholding of production payments. Protestant received this notice, timely responded,
and continually protested the need to file a tax
return. The OTC’s letter complied with the
Uniform Tax Procedure Code, 68 O.S.1991
§§201 through 263. In particular, the letter
complied with Section 221(a), which provides
that, in the event a taxpayer fails to file a return
on a tax that is due, the OTC “shall in writing
propose the assessment of taxes . . . and shall
mail a copy of the proposed assessment to the
taxpayer at his last-known address.”
¶17 With respect to matters of taxation, “the
due process provision of the [United States
Constitution] is satisfied, if at some stage of the
proceeding, either before or after the assessment of a tax, the party assessed has notice
thereof and has an opportunity to be heard.” In
re Thomas’ Estate, 1943 OK 115, ¶ 19, 136 P.2d
929, 932. Protestant received the OTC’s notice
of the need to file a return, as well as notice of
the possibility that production payments
would be withheld; Protestant was also afforded the opportunity to be heard on his protest of
the OTC’s actions. Therefore, we reject Protestant’s argument that it was necessary for the
1773
OTC to serve him personally or by registered
mail.
¶18 Protestant also argues that he was
coerced into appearing with the threat of
seizure of production payments and that his
appearance may be perceived as a waiver of
personal jurisdiction. We must disagree with
Protestant, as he has challenged jurisdiction
from the outset. There is nothing in the record
to indicate that the OTC or its administrative
law judge considered the issue of personal
jurisdiction waived.
¶19 A further argument from Protestant is
that the OTC erred in admitting evidence after
the close of the September 23, 1997, hearing.
The evidence was submitted in OTC’s supplemental brief which it filed with permission of
the administrative law judge. It was a copy of
a deed from Ghalib and Leatrice Alani granting to Protestant their “undivided interest in
and to all of the oil, gas and other minerals in
and under and that may be produced from”
four tracts of property in Pittsburg County.
¶20 Protestant filed a response to the OTC’s
supplemental brief, but did not object to
admission or consideration of the deed. Where
no objection to evidence appears in the appellate record, we will not consider on appeal its
allegedly erroneous admission. See Weathers v.
Fulgenzi, 1994 OK 119, ¶ 23, 884 P.2d 538, 543.
We further note that Protestant fails to show
that he was prejudiced by the admission of the
deed. The issue for consideration is whether
the OTC has jurisdiction to tax royalty income
received by Protestant attributable to Oklahoma land. Protestant has admitted from the
very beginning that he receives royalty income
and that the proposed tax affects that income;
the deed does not contradict or support Protestant’s admission.
CONCLUSION
¶21 The OTC has personal jurisdiction to
assess and collect a tax on Protestant’s royalty
income that is attributable to property within
Oklahoma. The OTC’s order is therefore
affirmed.
AFFIRMED.
REIF, P.J., and GABBARD, J., concur.
2006 OK CIV APP 55
IN THE MATTER OF THE ESTATES OF
DONOVAN MYRL WATSON, Deceased;
1774
MYRL LOUISE WATSON, Deceased; and
DONOVAN PERREN WATSON, Deceased.
JESSICA DONN WATSON,
Petitioner/Appellant, v. SYLVIA WATSON,
Appellee/Cross-Appellant, and TINA MARIE
LOVELADY, Personal Representative of the
Estate of Donovan Myrl Watson, Deceased,
Cross-Appellee.
Case No. 101,310. April 18, 2006
GREER COUNTY, OKLAHOMA
HONORABLE DANNY R. DEAVER, TRIAL
JUDGE
AFFIRMED
Charles P. Horton, HORTON & ASSOCIATES,
Mangum, Oklahoma, for Appellant,
Ronald L. Brown, BURNETT & GELNAR,
P.L.L.C., Edmond, Oklahoma, for Appellee
Sylvia Watson,
Charles P. Horton, HORTON & ASSOCIATES,
Mangum, Oklahoma, for Cross-Appellee Tina
M. Lovelady.
OPINION BY JOHN F. REIF, JUDGE:
¶1 This appeal by Jessica Donn Watson and
cross-appeal by Sylvia G. Watson arise from
proceedings to probate the intestate estates of
Donovan Myrl Watson, Donovan Perren Watson (his father), and Myrl Louise Watson (his
mother). Jessica is the minor child of Donovan
Myrl Watson’s second marriage and the granddaughter of Donovan Perren Watson and Myrl
Louise Watson. Sylvia sought and obtained
recognition as an heir of these decedents over
Jessica’s objection. The trial court ruled Sylvia
was the child of Donovan Myrl Watson’s first
marriage, having been born within ten months
of the dissolution of that marriage as provided
by 10 O.S.2001 §2(A)(1). Despite this determination and Jessica’s minority, the trial court
declined to appoint Sylvia as personal representative of Donovan Myrl Watson’s estate as
provided in 58 O.S.2001 §122. Jessica appeals
the trial court’s determination that Sylvia was
an heir, and Sylvia cross-appeals the trial
court’s refusal to appoint her personal representative of the estate of Donovan Myrl Watson. Upon review of the record and applicable
law, we affirm the trial court’s decision on each
of these issues.
Vol. 77 — No. 17 — 6/10/2006
I.
¶2 On appeal, Jessica asserts that Sylvia was
a child born out of wedlock because she was
born after the dissolution of the marriage
between Donovan Myrl Watson and Sylvia’s
mother. Jessica basically argues that a child
born out of wedlock cannot invoke the presumption in 10 O.S.2001 §2(A)(1) after the
death of the putative father. Jessica maintains a
child born out of wedlock must establish his
right to inherit as provided in the first paragraph of 84 O.S.2001 §215. Jessica points out
that Sylvia did not prove acknowledgment by
Donovan Myrl Watson during his lifetime, nor
demonstrate a judicial determination of his
paternity, as provided in the first paragraph of
§215.
¶3 The chief problem with Jessica’s position
is that it ignores the second paragraph of §215.
The second paragraph states: “For all purposes, the issue of all marriages null in law, or dissolved by divorce, are deemed to have been
born in wedlock.” To determine “the issue” of
a marriage, it is necessary to look to 10
O.S.2001 §2 which provides:
A. Except as otherwise provided by Section 215 of Title 84 of the
Oklahoma Statutes, a man is presumed to be the natural father of
a child for all intents and purposes if:
1. He and the child’s natural
mother . . . have been married to
each other and the child is born . . .
within ten (10) months after the
termination of the marriage by . . .
divorce.
¶4 By prefacing the presumption with the
words “Except as otherwise provided by Section 215 of Title 84,” we do not find an intent to
limit the presumption to the lifetime of the
father; rather, this preface simply makes it
clear that the presumption and other means for
establishing a father-child relationship in §2
are not exclusive and operate in addition to the
means set forth in §215.
¶5 Oklahoma law has long recognized that
the means of establishing a father-child relationship are cumulative rather than preclusive.
Where a party asserts the right of
inheritance from the father, . . . it is incumbent upon such claimant to produce proof
Vol. 77 — No. 17 — 6/10/2006
that he was born to such father in lawful
wedlock, or present a condition by his proof
from which legitimacy will be presumed, or, if
born out of wedlock, that the father legitimatized such claimant in some manner
known to the law.
Frazier v. McCary, 1925 OK 419, ¶0, 236 P. 880
(syllabus 2) (emphasis added).
¶6 Sylvia presented proof of a “condition . . .
from which [her] legitimacy will be presumed”
under 10 O.S.2001 §2(A)(1). That is, she offered
proof that she was born two months after the
dissolution of the marriage of Donovan Myrl
Watson and her mother. Her birth was well
within the ten-month period provided by
§2(A)(1). Upon such proof, the burden shifted
to Jessica to rebut the presumption that Donovan Myrl Watson was Sylvia’s father. 10
O.S.2001 §§2(B) and 3. In view of the fact that
Jessica did not present evidence to rebut the
presumption, the trial court properly ruled
that Sylvia was the daughter and heir of
Donovan Myrl Watson and an heir of Donovan
Perren Watson and Myrl Louise Watson.
II.
¶7 In her cross-appeal, Sylvia contends the
trial court erred in denying her letters of
administration and in granting letters of
administration to Jessica’s guardian ad litem.
Sylvia argues (1) she has a preference as the
child of Donovan Myrl Watson to serve as
administrator of his estate as provided in 58
O.S.2001 §122(2), and (2) Jessica’s guardian ad
litem is not a “guardian” under 58 O.S.2001
§125 entitled to letters of administration on
behalf of Jessica due to Jessica’s minority. In
this latter regard, there is no dispute that the
guardian ad litem has been Jessica’s “custodian” since the divorce of her parents, but has
never been appointed as general guardian of
Jessica’s person or estate.
¶8 Unquestionably, Sylvia’s status as a child
of Donovan Myrl Watson entitles her to be
appointed as administrator of his intestate
estate as provided in 58 O.S.2001 §122(2). It is
also clear that Jessica is incompetent to serve as
administrator due to her minority as provided
in 58 O.S.2001 §126. What is not so clear is
whether the trial court could grant letters of
administration to Jessica’s guardian ad litem as
provided by 58 O.S.2001 §125.
¶9 Section 125 directs that “letters must be
granted to [a minor’s] guardian, or any other
1775
person entitled to letters of administration, in
the discretion of the court.” In the case of In re
Enochs’ Estates, 1958 OK 40, ¶0, 322 P.2d 197
(syllabus 1), the Oklahoma Supreme Court
said that “[s]ection 125 . . . providing that letters of administration shall issue to the
guardian of a minor, instead of to the minor
himself, refers to a guardian appointed in this
state, and not to one appointed in some other
state.” (Emphasis added.)
¶10 A guardian can be appointed under
Oklahoma law to generally protect the person
and estate of a minor, see 30 O.S.2001 and
Revised Supp. 2005 §§2-101 through 2-116, or
when it is necessary for a minor to be a party
to litigation affecting the rights of the minor, 12
O.S.2001 §2017(C). This latter statute recognizes that an infant may sue or defend by a
“general guardian” or by a “guardian ad
litem.” In cases where a court appoints a
“guardian ad litem,” the court is empowered
“to make such other order as it deems proper
for the protection of the infant.”
¶11 In providing for the issuance of letters
of administration to the guardian of a minor,
the legislature did not expressly limit the
issuance of letters to a general guardian of a
minor. As §2017(C) indicates, the legislature is
aware of the difference between a general
guardian and guardian ad litem. Given the fact
that both types of guardians can represent the
interests of their minor wards in litigation generally, there appears to be no reason to conclude that the legislature intended to exclude
guardians ad litem from receiving letters of
administration on behalf of the minors they
represent in probate cases. The legislature did
not modify the term guardian in §125 and this
court should not do so by an interpretation
that would limit the statute to “general”
guardians alone.
¶12 Under §125, the court in its discretion
could issue letters of administration to Jessica’s
guardian ad litem or to “any other person entitled to letters of administration,” like Sylvia.
Also, “[w]hen there are several persons equally entitled to the administration, the court may
grant letters to one or more of them.” 58
O.S.2001 §124 (emphasis added).
¶13 Contrary to Sylvia’s assertion, the trial
court was not required to issue letters of
administration to her. The trial court was vested with discretion in deciding whether to
1776
appoint Sylvia alone, the guardian ad litem
alone, or both to serve as co-administrators.
¶14 Jessica contends the trial court had sufficient cause to appoint her guardian ad litem
to serve as the sole administrator. Jessica
points out that the trial court expressed concern that the animosity between Jessica and
Sylvia would be detrimental to the administration of the estate by Sylvia alone or even as copersonal representative. Jessica argued that
this amounted to a finding Sylvia was “incompetent to serve as administrator by reason of
her demonstrated animosity toward Jessica . . .
which might cause her to be improvident or
treat [Jessica] unfairly under Title 58 O.S.[2001]
§126.” Jessica also cites Wyche v. Wyche, 1961
OK 211, 365 P.2d 993, in support of this contention.
¶15 The chief problem with Jessica’s position is that the Wyche case construed disqualifying improvidence in §126 to mean the “want
of care and foresight in the management of
property which would be likely to render the
estate and effects of the intestate unsafe and
liable to be lost or diminished in value.” Wyche,
1961 OK 211, ¶16, 365 P.2d at 996 (citations
omitted). Improvidence relates to a party’s
inability to manage property and assets, not to
any feelings toward other heirs. There was no
evidence that Sylvia was incompetent by reason of business improvidence to serve as
administrator.
¶16 Even though Sylvia was not incompetent to serve as administrator as provided by
§126, this does not mean she is automatically
entitled to serve as administrator simply
because Jessica’s right to serve is exercised by
her guardian ad litem. See Sparks v. Steele, 1972
OK 127, ¶16, 501 P.2d 1106, 1110. This is a circumstance where “there are several persons
equally entitled to the administration” as recognized in §124. In such cases, the trial court is
given discretion to grant letters “to one or
more of them.”
¶17 In denying Sylvia’s request for letters of
administration and granting letters to Jessica’s
guardian ad litem, the trial court expressly
found “it would be cumbersome and inefficient to have co-personal representatives given
the animosity apparent in this matter.” In
reviewing a trial court’s decision concerning
conflicting claims for letters of administration,
an appellate court will weigh the evidence, but
will not reverse the judgment of the trial court
Vol. 77 — No. 17 — 6/10/2006
unless it clearly appears to be against the
weight of the evidence. Wyche, 1961 OK 211,
¶0, 365 P.2d at 994 (syllabus).
¶18 In weighing the evidence, an appellate
court must bear in mind “[t]he trial court was
in a position to observe the witnesses as they
testified.” Id. at ¶19, 365 P.2d at 996. Additionally, the party challenging the decision of the
trial court carries the burden to show the findings and judgment of the trial court are against
the clear weight of the evidence. Id. at ¶18, 365
P.2d at 996.
¶19 In reviewing the record, we do not find
the trial court’s decision to appoint Jessica’s
guardian ad litem as the sole administrator of
Donovan Myrl Watson’s estate to be against
the clear weight of the evidence. The trial court
was in the best position to assess the impact
that animosity between the parties would have
on the administration of the estate and to
decide which applicant for administration
would be least affected by such animosity.
III.
¶20 In the appeal by Jessica Donn Watson of
the judgment determining Sylvia G. Watson to
be the child of Donovan Myrl Watson and the
heir of Donovan Perren Watson and Myrl
Louise Watson, the judgment is affirmed. In
the cross-appeal by Sylvia G. Watson of the
judgment appointing the guardian ad litem of
Jessica Donn Watson to be the sole administrator of Donovan Myrl Watson’s estate, the judgment is affirmed.
¶21 AFFIRMED.
RAPP, V.C.J., and GABBARD, P.J., concur.
2006 OK CIV APP 56
ENERGY EXCHANGER COMPANY and
AMERICAN INTERSTATE INSURANCE
COMPANY, PETITIONERS, v. TERRY HILL,
CUST-O-FAB, LEGION INSURANCE
COMPANY, OKLAHOMA PROPERTY &
CASUALTY GUARANTY FUND and the
WORKERS’ COMPENSATION COURT,
RESPONDENTS.
No. 101,399. March 3, 2006
PROCEEDING TO REVIEW AN ORDER OF
A THREE-JUDGE PANEL OF THE
WORKERS’ COMPENSATION COURT
Vol. 77 — No. 17 — 6/10/2006
VACATED AND REMANDED WITH
INSTRUCTIONS
John M. MacKenzie, MacKenzie & Whitten,
Tulsa, Oklahoma, for Petitioners,
Larry C. Brawner, R. Dean Lott, Brawner Law
Office, Oklahoma City, Oklahoma, for Respondents.
Opinion by Larry Joplin, Judge:
¶1 Petitioners Energy Exchanger Company
and American Interstate Insurance Company
(Employer) seeks review of an order of a threejudge panel of the Workers’ Compensation
Court affirming the trial court’s award of benefits to Respondent Terry L. Hill (Claimant). In
this proceeding, Employer complains the
Workers’ Compensation Court erred as a matter of law in apportioning liability for
Claimant’s cumulative trauma hearing loss
between it and Claimant’s current employer,
Cust-O-Fab, contrary to the express provisions
of 85 O.S. §11(B)(5).
¶2 Claimant, a welder, worked for Employer for over seventeen years. Claimant voluntarily resigned May 31, 2001. In June and July
2001, Claimant worked as a welder for Hughes-Anderson Heat Exchangers. Beginning
August 1, 2001, Claimant went to work as a
welder for Cust-O-Fab.
¶3 On October 26, 2001, Claimant filed his
Form 3 to commence the instant proceeding,
asserting cumulative trauma binaural hearing
loss arising out of and in the course of his seventeen-year experience with Employer. In January 2002, Employer filed a Form 13, Motion to
Join Additional Parties, seeking to join Hughes-Anderson Heat Exchangers and Cust-O-Fab
as additional party-respondents. In May 2002,
the trial court dismissed Hughes-Anderson
Heat Exchangers from the action.
¶4 At trial in June 2004, Claimant testified
that he appreciated some job-related hearing
loss as early as the mid-1990’s, but that he continued to be exposed to injurious noise levels
throughout his tenure with Employer.
Claimant admitted that his current employment with Cust-O-Fab was considerably quieter. Claimant admitted other exposures to
noise, particularly, in a building explosion
while in the armed forces, and in his non-jobrelated recreational activities.
¶5 In support of his claim, Claimant offered,
and the trial court admitted, the deposition of
1777
an examining physician, Dr. Hastings. Based
on his examination, and a review of periodic
audiometric tests administered to Claimant
beginning in 1988, Dr. Hastings found that
Claimant suffered fifty-three percent (53%)
binaural hearing loss with associated tinnitus,
all causally related to his employment with
Employer.
¶6 Claimant also offered, and the trial court
admitted, an Abbreviated Sound Level Survey
of Employer’s workplace, conducted in 1990.
That evidence showed a “significant elevation
of noise level” in the workplace and recommended that “all employees throughout the
shop area and assembly area wear hearing
protection . . . .”
¶7 In opposition to the claim, Employer
offered, and the trial court admitted, the report
of its examining physician, Dr. Pettigrew, who
found that Claimant suffered thirty-nine and
seven-tenths percent (39.7%) binaural hearing
loss. However, Dr. Pettigrew opined that
“ninety (90) percent of this impairment is a
result of his employment for over twenty-five
(25) years prior to being employed with CustO-Fab,” and that, “[o]f the remaining ten (10)
percent, . . . eight (8) percent of this impairment
is due to [non-job-related] outside noise exposure, . . . , and . . . two (2) percent . . . due to his
employment at Cust-O-Fab . . . .”
¶8 Employer also introduced, and the trial
court admitted, the report of another physician, Dr. Gillock, who opined that Claimant
suffered thirty-four and seven-tenths percent
(34.7%) binaural hearing loss. Dr. Gillock
attributed “25% of this impairment (8.9% to
the ears) to non-work related noise exposures,”
and the “remaining 75% of his hearing loss
among . . . (a) [Employer] – 20% to the ears[;]
(b) Hughes-Anderson – 0% to the ears[;] [and]
(c) Cust-O-Fab – 5.8% to the ears,” with no
“permanent partial impairment related to
tinnitus.”
¶9 On consideration of the evidence, the
trial court awarded benefits for thirty-two percent (32%) binaural hearing loss, over and
above five percent (5%) binaural hearing loss
due to non-work-related exposures. However,
the trial court apportioned liability for
Claimant’s hearing loss between Employer
and Cust-O-Fab, reasoning:
[T]he injurious exposure experienced
by the [C]laimant while working for
1778
respondent, CUST-O-FAB, was not and is
not of the same or similar severity to justify the application of 85 O.S. §11(B)(5),
which would in effect tag CUST-O-FAB
with full liability fo[r] the cumulative trauma hearing loss alleged herein. Alternatively, . . . , [C]laimant’s date of injury was
his legal awareness of a work related hearing loss in the early to mid 1990’s, long
before the statutory change in the law that
is contained in 85 O.S. §11(B)(5).
The trial court consequently held Employer
“liable/responsible for 30 percent binaural
hearing loss,” and Cust-O-Fab “liable/responsible for 2 percent binaural hearing loss,” “as a
result of his work related, cumulative trauma
hearing loss alleged herein.” On Employer’s
petition for intra-court review, a three-judge
panel unanimously affirmed the trial court’s
order as neither contrary to law nor against the
clear weight of the evidence.
¶10 In its sole proposition of error to this
Court, Employer asserts the Workers’ Compensation Court erred as a matter of law in
apportioning liability for Claimant’s cumulative trauma hearing loss between it and
Claimant’s current employer, Cust-O-Fab.
Here, Employer argues the express terms of 85
O.S. §11(B)(5) impose liability for the full
extent of disability attributable to cumulative
trauma injuries on the employer in whose
employ the claimant “was last injuriously
exposed to the trauma during a period of at
least ninety (90) days or more.” So, says
Employer, because Claimant worked for CustO-Fab for more than ninety (90) days during
which he “was last injuriously exposed” to the
trauma of that workplace, and because the
medical evidence of both parties showed that
Claimant suffered some hearing loss during
his current employment with Cust-O-Fab,
§11(B)(5) imposed liability for all of Claimant’s
cumulative trauma hearing loss on Cust-OFab, and the Workers’ Compensation Court
erred as a matter of law in apportioning liability. See, e.g., Celestica Inc. v. Hines, 2004 OK CIV
APP 22, 86 P.3d 1095.
¶11 Cust-O-Fab responds, asserting that
Claimant became aware of his job-related hearing loss sometime in the mid 1990’s, prior to
enactment of §11(B)(5), and that the law in
effect at the time of Claimant’s awareness of
his job-related hearing loss controls the rights
and obligations of the parties. See, e.g., Cole v.
Vol. 77 — No. 17 — 6/10/2006
Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542;
CR Industries v. Dorsey, 1998 OK 111, 970 P.2d
179; Southwest United Industries v. Polston, 1998
OK 78, 964 P.2d 210; Rankin v. Ford Motor Co.,
1996 OK 94, 925 P.2d 39. So, says Cust-O-Fab,
because the law in effect at the time of
Claimant’s awareness permitted apportionment, and because the medical evidence supports some apportionment of liability between
it and Employer, the order of the three-judge
panel should be sustained.
¶12 Prior to enactment of §11(B)(5), the
Court of Civil Appeals recognized that, where
a claimant suffered cumulative trauma injuries
in successive employments, or while insured
by successive insurers, apportionment of liability for the claimant’s benefits was proper.
See, Ball-Incon Glass v. Adams, 1995 OK CIV
APP 16, 894 P.2d 439; Kerr Glass Co. v. Wilson,
1994 OK CIV APP 69, 880 P.2d 414; Lummus
Const. v. Vancourt, 1992 OK CIV APP 113, 838
P.2d 43; Pauley v. Lummus Const., 1992 OK CIV
APP 96, 836 P.2d 692. However, effective October 23, 2001, the Oklahoma Legislature rewrote 85 O.S. §11, and subsection (B)(5) of §11
now provides:
Where compensation is payable for an
injury resulting from cumulative trauma,
the last employer in whose employment
the employee was last injuriously exposed
to the trauma during a period of at least
ninety (90) days or more, and the insurance carrier, if any, on the risk when the
employee was last so exposed under such
employer, shall alone be liable therefor,
without right to contribution from any
prior employer or insurance carrier. . . .
¶13 The Court of Civil Appeals has held
that, by enactment of §11(B)(5), “the Legislature intended to make the last exposure doctrine apply to cumulative trauma cases, both
for determination of the date of injury and for
the determination of the liable employer in
cases of multiple employers.” Celestica Inc.,
2004 OK CIV APP 22, ¶9, 86 P.3d at 1098.
Accord, OCT Equipment, Inc. v. Ferrell, 2005 OK
CIV APP 36, ¶7, 114 P.3d 479, 481, cert. den.,
2005 OK 38; Keco, Inc. v. Hayward, 2005 OK CIV
APP 53, ¶14, 123 P.3d 50, 53; Anderson Mechanical, Inc. v. Spiegel, 2005 OK CIV APP 60, ¶7, 119
P.3d 1287, 1289. “By force of [85 O.S. §11(B)(5)],
where a claimant suffers a cumulative trauma
injury in the course of his or her employment
for a single employer, and is last injuriously
Vol. 77 — No. 17 — 6/10/2006
exposed to the trauma ‘during a period of at
least ninety (90) days,’ ‘then “the insurance
carrier . . . on the risk when the employee was
last so exposed . . . shall alone be liable, therefor, without right to contribution from any
prior . . . insurance carrier.” ’ ” Anderson
Mechanical, Inc., 2005 OK CIV APP 60, ¶7, 119
P.3d at 1289; OCT Equipment, Inc., 2005 OK CIV
APP 36, ¶7, 114 P.3d at 481. “ ’The insurer on
the risk on the last day of exposure is solely
liable if the claimant worked for a single
employer for the 90 days prior to last exposure.’ ” Anderson Mechanical, Inc., 2005 OK CIV
APP 60, ¶7, 119 P.3d at 1289; OCT Equipment,
Inc., 2005 OK CIV APP 36, ¶10, 114 P.3d at 481.
¶14 That said, however, it would appear
that, if the proof demonstrates the job-related
exposures to a risk of cumulative trauma
injury in the last employment have not caused
or contributed to the resulting disability,
§11(B)(5) would permit imposition of liability
for the full extent of cumulative-trauma-related disability on the previous employer. In this,
we are persuaded by the Oklahoma Supreme
Court’s analysis of 85 O.S. §11(B)(4), which
imposes liability on the last employer in occupational disease cases in the same way
§11(B)(5) imposes liability on the last employer
in cumulative trauma cases:
. . . . Section 11(B)(4) places the burden on
the claimant to show that the last exposure
to harmful conditions caused or contributed to the injury. The last injurious
exposure rule relieves the employee of
proving the allocation of liability among
successive employers and their insurance
carriers.
In cases of occupational disease, a
claimant may establish a presumptive date
of last injurious exposure and, thus, the
employer’s and insurance carrier’s presumptive liability by showing potentially
causal conditions or contributory exposure
at the employment. After an employee
submits evidence of potentially causal conditions or contributory conditions at the
employment, the burden of putting forth
evidence shifts to the employer and insurance carrier. The employer may rebut the
presumption by proof (1) that the conditions of the employment could not have
possibly caused or exacerbated the disease
or (2) that the disease was caused solely by
the employment conditions at a previous
1779
employment, or for the insurance carrier,
the conditions occurred during a time outside of its coverage. The burden of putting
forth evidence then is placed back on the
claimant to show that the last exposure
caused or contributed to the injury.
Heat Transfer & Equipment v. Cauthon, 2004 OK
80, ¶¶12-13, 100 P.3d 722, 725-726.
¶15 So, in cumulative trauma cases under
§11(B)(5), if the claimant demonstrates the last
exposure to potentially causal or contributory
conditions during a period of at least ninety
(90) days in the latest employment, the
claimant establishes the last employer’s presumptive liability for the full extent of the
cumulative-trauma-related disability. Cauthon,
2004 OK 80, ¶13, 100 P.3d at 726. The last
employer, however, may avoid §11(B)(5) liability by proof “that the conditions of the employment could not have possibly caused or exacerbated the” cumulative trauma related disability, or that the disability “was caused solely by the employment conditions at a previous
employment.” Id. Pursuant to the Cauthon
analysis, the workers’ compensation court
could, in such a case, properly hold the
previous employer liable for the full extent
of a claimant’s cumulative-trauma-related
disability.
¶16 In the present case, Dr. Hastings attributed all of Claimant’s hearing loss to the cumulative trauma suffered in Employer’s workplace. Dr. Pettigrew and Dr. Gillock attributed
most of Claimant’s hearing loss to the cumulative trauma of Employer’s workplace, but also
some to Cust-O-Fab’s workplace. The trial
court found some of Claimant’s hearing loss
attributable to his employment with Cust-OFab, the trial court’s finding in this respect is
supported by competent evidence, and no
party to his appeal challenges this finding.
¶17 Moreover, the evidence is undisputed
that Claimant worked for Cust-O-Fab for a
period exceeding ninety days, during which he
was exposed to the noise of that workplace,
and which, according to the trial court’s
unchallenged finding, caused some hearing
loss. Under these circumstances, §11(B)(5)
required the Workers’ Compensation Court to
enter an award for all of Claimant’s cumulative-trauma-related hearing loss against CustO-Fab, in whose employment Claimant was
last hazardously exposed to the hearingimpairment-causing cumulative trauma for
1780
more than ninety days. Although the trial
court was clearly concerned for the inequity of
imposing liability on Cust-O-Fab for the full
extent of the cumulative-trauma-related hearing loss given the evidence of nominal hearing
loss during Cust-O-Fab’s employment of
Claimant, the terms of §11(B)(5) are mandatory, and leave no room for apportionment of
liability between the previous employer and
the last employer.
¶18 We therefore hold the order of the threejudge panel, affirming the order of the trial
court to apportion liability, is erroneous as a
matter of law. The order of the three-judge
panel is accordingly VACATED, and the cause
REMANDED with instructions to enter an
order holding Cust-O-Fab solely liable for all
of Claimant’s cumulative trauma hearing loss.
BELL, P.J., specially concurring:
I want to concur with the majority opinion
because I believe this case results in the legislative intent of 85 O.S. §11(B)(5). I feel like the
result is unfair but my judicial hands are tied.
HANSEN, J., dissents with separate opinion.
CAROL M. HANSEN, Judge, dissenting:
¶1 I must respectfully dissent from that part
of the majority’s opinion which holds 85 O.S.
§11(B)(5) was applicable here. In my view, the
Workers’ Compensation Court correctly found
§11(B)(5) inapplicable. That subsection was not
the law at the definitive time here, that is, “the
early to mid 1990’s”, the time the Workers’
Compensation Court found Claimant first
became aware his injuries were employment
related.
¶2 The majority’s rationale for holding
§11(B)(5) applicable, and imposing the sole
burden of liability on CUST-O-FAB, is that [1]
CUST-O-FAB was Claimant’s Employer during a period of more than ninety days when
Claimant was last injuriously exposed, and [2]
because cumulative trauma injuries are now
governed by the date of the last trauma or hazardous exposure, rather than the “awareness
doctrine”, citing Celestica, Inc., v. Hines, 2004
OK CIV APP 22, 86 P.3d 1095.
¶3 My reasoning for dissent is set out more
fully in my dissents in Keco, Inc. v. Hayward,
2005 OK CIV APP 53, 123 P.3d 50 and Anderson
Mechanical, Inc. v. Spiegel, 2005 OK CIV APP 60,
119 P.3d 1287, both cited by the majority. In
Vol. 77 — No. 17 — 6/10/2006
summary, I believe Celestica, Inc. v. Hines is
both distinguishable on the facts and based on
a faulty premise. The date of the claimant’s
awareness there was after the effective date of
§11(B)(5). Applying the awareness doctrine
would not have changed the outcome under
the facts in that case. Secondly, the Hines Court
did not fully examine the impropriety of
giving §11(B)(5) retroactive effect.
¶4 It is well established in our Workers’
Compensation jurisprudence that the law in
effect on the date of injury “forms a portion of
the contract of employment and determines
the substantive rights and obligations of the
parties.” Cole v. Silverado Foods, Inc., 2003 OK
81, 78 P.3d 542. Section 11(B)(5) was inapplicable to determine liability here because it was
not in effect in the 1990’s, when Claimant
became aware of his work-related hearing loss
and therefore the date of his injury.
¶5 The real question is whether retroactive
application of §11(B)(5) passes constitutional
muster under the specific mandates of the
Oklahoma Constitution. I believe it does not.
In Cole v. Silverado Foods, 78 P.3d at 548, the
Supreme Court stated:
The terms of Art. 5 §54, Okl. Const., protect
from legislative extinguishment by retroactive enactments “accrued” rights acquired
or “proceedings begun” under a repealed
or amended statute.
¶6 In King Manufacturing v. Meadows, 2005
OK 78, __ P.3d __, the Oklahoma Supreme
Court recently reiterated its holding in Cole
that the substantive rights and obligations of
the parties are set at the time of injury. The
Court held an award of permanent disability
for a change in condition is governed by the
statutory language in effect at the time of the
initial injury and that 85 O.S. Supp. 1995 §22(7)
could not be applied retroactively to affect the
amount of recoverable compensation, a substantive right. Similarly, under the law then in
effect, the rights and obligations of the parties
were established at the time Claimant became
aware of his employment related hearing loss.
As the majority notes, at that time apportionment between successive employers was
proper.
¶7 I would hold that §11(B)(5) may not be
applied where, as here, the claimant’s date of
awareness predates the effective date of the
Vol. 77 — No. 17 — 6/10/2006
statute. I would sustain the Workers’ Compensation Court’s order apportioning liability.
2006 OK CIV APP 57
CITY OF TULSA FIRE DEPARTMENT,
OWN RISK, Petitioner, v. KEITH A.
MILLER and THE WORKERS’
COMPENSATION COURT, Respondents.
No. 102,009. April 14, 2006
SUSTAINED
Alan L. Jackere, Acting City Attorney, David A.
Shapiro, Assistant City Attorney, Cornelius R.
Johnson, Assistant City Attorney, CITY OF
TULSA, a municipal corporation, Tulsa,
Oklahoma, for Petitioner,
J.L. Franks, Tomy W. McDonald, FRASIER,
FRASIER & HICKMAN, Tulsa, Oklahoma, for
Respondent Keith A. Miller.
Opinion by Kenneth L. Buettner, Chief Judge:
¶1 Keith A. Miller was a twelve-year member of the Tulsa Fire Department where he
worked as a first responder. Sometime during
his employment, he contracted hepatitis C. The
Workers’ Compensation Court found that, as is
often the case in these types of claims, the
claimant could not testify as to which, of several exposures, was the source of the disease. It
then found the claim compensable. A threejudge panel unanimously affirmed. We sustain
the order.
¶2 Miller filed his Form 3 June 4, 2003, seeking medical treatment from May 10, 2003 and
continuing. The City of Tulsa (Tulsa) denied
that the injury was related to work.
¶3 For documentary evidence, Miller submitted a report from Dr. Hallford, dated May
29, 2003. The doctor took a history from Miller,
including that one candidate for transmission
of the virus had tested negative, but she was
the only one tested. The doctor made a general statement: “Health care and public safety
workers are certainly known to be at higher
risk of catching such blood-borne infections
and he has no other history of exposure.” The
doctor further stated that hepatitis C can
progress slowly and cause liver damage, but
that Miller was currently asymptomatic. This
doctor formed the opinion with a reasonable
1781
degree of medical certainty that Miller’s HCV
infection was work-related and that he should
see a gastroenterologist or hepatologist to see if
he was a candidate for Interferon therapy
and/or antiviral medication. Finally, the doctor
found that Miller was working and could continue working, with standard blood precautions.
¶4 Miller also submitted treatment notes from
2000 showing abnormal liver function tests and
his denial of high risk activities. He admitted
moderate alcohol intake. The hepatitis C diagnosis was made after previous work-ups of abnormal liver function tests. There are also handwritten treatment notes dating from 1991.
¶5 Tulsa submitted a report from Dr. Mitchell,
dated August 18, 2003. Dr. Mitchell stated that
Miller claimed that there was only one possible
exposure to hepatitis C, but this exposure subsequently tested negative and Miller was unable to
recall any other exposures to blood or blood
products during his employment. Dr. Mitchell
related the clinical chronology of Miller’s condition. He noted that Miller admitted having had
unprotected sex with two different women after
his divorce and that he was not aware of their
hepatitis status. The doctor performed a physical
examination and reviewed medical records. He
formed the opinion that Miller did not contract
the hepatitis C virus as a result of work activities
with the Tulsa Fire Department. He founded this
opinion on the fact that the source tested negative and Miller could recall no other incidences
where he was exposed to blood or blood products. He further based his opinion on information from the Center for Disease Control which
apparently states that Miller is at intermediate
risk for contracting the disease because of his
undiagnosed liver problems, noting that Miller
had elevated liver function tests since 1996. He
stated that other sources of the infection include
his episodes of unprotected sex with partners of
unknown hepatitis C status. Tulsa also introduced Miller’s treatment records for historical
purposes.
¶6 Finally, Miller testified. He stated that his
job as a first responder firefighter required him
to be exposed to blood and blood-borne
pathogens sometimes several times a day, sometimes several times a week. They respond to
such things as car accidents. He was first diagnosed with hepatitis C in 2000, but his liver function tests had been elevated for several years. He
testified that firefighters get regular physicals
from the City physician once a year and his liver
1782
enzymes had been high for several years, but the
City doctor said it was nothing serious, that
many things could cause that. However, his
treating physician wanted to follow up and in
2000, he tested positive for hepatitis C. He testified that he could point to no specific incident of
exposure to the virus, and outside his employment with Tulsa, he did not work in any healthcare areas. For the first eight years of his employment with Tulsa, he worked with Engine 27,
which was usually the first, sometimes the second, busiest engine company. He stated that he
was not an intravenous drug user, did not
engage in homosexual activity; had not had sexual contact with women that he knew had hepatitis C; and that he had not been exposed to hepatitis C outside of his employment, so far as he
knew. He testified that Dr. Mitchell’s statement
that he could not recall any other instance in
which he was exposed to blood borne products
except the one incident where the person tested
negative, was untrue. He stated that he had been
exposed to blood several times. Currently, he
was not experiencing any problems due to his
hepatitis C status, except some fatigue and occasionally flu-like symptoms. He stated that so far
as he knew, he was not diagnosed with hepatitis
C before he began employment with Tulsa.
¶7 On cross-examination, Miller stated that
the one incident in 1996 where the person was
tested, he was aware that her hepatitis test came
back negative. He agreed that he could not relate
his contracting hepatitis C to any specific incident while on duty. Prior to 1996, Tulsa did not
have a policy about reporting contacts with body
fluids, just blood-to-blood contact, which is why
the 1996 contact was reported. He stated that he
had had unprotected sex with three women since
1990 and none, to his knowledge, have been tested for hepatitis C.
¶8 On re-direct examination, Miller testified
that hepatitis C can be transmitted blood-toblood, or through eyes, nose, mouth, ears or
even nail beds and that he had been exposed
numerous times to blood in those ways.
¶9 Title 11 O.S. 2001 § 49-110 (A) provides:
No firefighter shall be retired, as provided in
Section 49-109 of this title, or receive any
pension from the System [municipal retirement system], unless there shall be filed with
the State Board certificates of the firefighter’s
disability. Any member of the fire department of any municipality who is disabled as
a result of heart disease, injury to the respi-
Vol. 77 — No. 17 — 6/10/2006
ratory system, infectious disease, or cancer
was not revealed by the physical examination passed by the member upon entry into
the department, shall be presumed to have
incurred the heart disease, injury to the respiratory system, infectious disease, or cancer
while performing the firefighter’s duties as a
member of such department unless the contrary is shown by competent evidence. As
used in this section, “infectious disease”
means hepatitis, human immunodeficiency
virus, meningitis and tuberculosis.
(Emphasis added).1
¶10 In Johnson v. City Woodward, 2001 OK 85,
38 P.3d 218, the Oklahoma Supreme Court
applied the §49-110 presumption to a firefighter’s heart disease claim. It held that the Workers’
Compensation Court was the court to determine
whether the carrier had “rebutted the presumption of subsection (A) by competent evidence
and whether the illness is job-related.” Id. at ¶ 17,
p. 225. The Johnson court further noted that
although §49-110(A) may be inartfully drafted,
the legislature nonetheless intended that the presumption that the disease was incurred during
service unless the contrary is shown, was meant
to be woven into the workers’ compensation system. Consequently, because the facts at hand
were that Miller did not have hepatitis when he
began his firefighter career, there is a legal presumption that he contracted this disease during
his service as a firefighter. The burden then shifted to Tulsa to produce competent evidence to the
contrary.
¶11 On appeal, Tulsa argues that Miller presented no evidence that related his hepatitis C to
any incident at work.2 As we have explained, the
presumption is that Miller did contract the virus
at work, once he showed he was free from it
when he began his tenure with the fire department. It then became Tulsa’s burden to present
competent evidence to rebut that presumption.
¶12 Tulsa relies on Deaconess Hospital v. Ledbetter, 2002 OK CIV APP 29, 41 P.3d 1051, in which
a lithotripsy technician contracted hepatitis. It
was unrefuted that the water tub in which she
placed her hands contained human blood, urine
and some fecal matter and was not cleaned
between patients. Although she wore gloves,
water often came over the tops of the gloves.
There was no particular time she could recount
when she would have contracted the virus. The
hospital put forth evidence that the worker had
tattoos and multiple sexual partners. The appelVol. 77 — No. 17 — 6/10/2006
late court found that the claimant’s evidence prevailed and awarded her benefits. It cited the
Wheaton v. City of Tulsa Fire Department, 1998 OK
CIV APP 155, 97 P.2d 194, ¶ 7, p. 196, for the principle that “...the fact Claimant cannot specify
which of several specific incidents [exposures]
caused him to contract the virus, does not bar
him from recovery under this theory. Proof of
several exposures, and that one of them caused
the injury, is sufficient.”
¶13 Neither Wheaton nor Deaconess Hospital
mentions the §49-110(A) presumption. This is
because “infectious disease” was added to §49110(A) by Laws 2001, c. 359, effective July 1, 2001.
Wheaton was decided in 1998, and Deaconess Hospital involved an employee that had contracted
hepatitis C before March 24, 1999. Then, in 2002,
the Legislature made the provision of §49-110(A)
relating to infectious diseases retroactive to
November 10, 1999. As a result, neither Wheaton
nor Deaconess Hospital provide guidance when
the §49-110(A) presumption applies.
¶14 The presumption is that Miller, who was
hepatitis-free when he began his employment as
a firefighter, contracted the virus as a result of his
employment. The City of Tulsa did not produce
sufficient evidence to convince the trial court to
the contrary.
¶15 The decision of the trial court, as unanimously affirmed by the three-judge panel, is
SUSTAINED.
MITCHELL, P.J., and ADAMS, J., concur.
1. Effective July 1, 2002, section A was amended by the addition to
the end of the paragraph of this sentence: “Effective November 10,
1999, the provisions of this subsection relating to infectious disease
shall apply.”
2. On appeal to the three-judge panel, Tulsa alleged that Miller
was unable to state or pinpoint any specific exposure.
2006 OK CIV APP 58
BILL PITTMAN and FRANK PITTMAN,
Plaintiffs/Appellants, v. LARRY SAGER and
MARY ELLEN SAGER,
Defendants/Appellees, and MIKE
McDONALD, in his capacity as Distribution
Referee, Defendant.
No. 102,498. April 14, 2006
BEAVER COUNTY, OKLAHOMA
1783
HONORABLE GREG A. ZIGLER, JUDGE
AFFIRMED
Joel R. Hogue, MULLIN, HOARD & BROWN,
L.L.P., Amarillo, Texas, for Plaintiffs/Appellants,
Byron K. Linkous, Steven C. Davis, HARTZOG, CONGER, CASON & NEVILLE,
Oklahoma City, Oklahoma, for Defendants/
Appel-lees.
Opinion by Kenneth L. Buettner, Chief Judge:
¶1 Plaintiffs/Appellants Bill Pittman and
Frank Pittman (the Pittmans) appeal from
summary judgment entered in favor of Defendants/Appellees Larry Sager and Mary Ellen
Sager (the Sagers). The parties sought a declaration of their rights to certain settlement and
judgment proceeds attributable to oil and gas
production from certain real property. The
Sagers own the surface and minerals of the real
property. The Sagers purchased the surface
from W.K. and Ardath Pittman, who reserved
a life estate in the mineral rights. The Sagers
received the remainder interest in the mineral
estate following the deaths of W.K. and Ardath
Pittman. The Pittmans are the heirs of the life
tenants. They asserted they were entitled to the
settlement and judgment proceeds attributable
to minerals severed during the life estate. The
trial court held the proceeds at issue were first
ascertained and became collectible after the
death of the last life tenant and that, pursuant
to both the terms of the reservation clause and
the provisions of the Uniform Principle and
Income Act, the Pittmans had no right to those
proceeds. We affirm.
¶2 The facts of this case are not disputed.
W.K. and Ardath Pittman (“Life Tenants”)
owned the surface and mineral rights to certain real property.1 Life Tenants conveyed the
real property by warranty deed to the Sagers
September 4, 1973, but they reserved a life
estate in the mineral rights. Life Tenants
obtained a default judgment against the Sagers
January 8, 1985, which reformed the life estate
reservation clause in the 1973 warranty deed.2
The reformed reservation clause stated:
Reserving unto grantors, W.K. Pittman and
Ardath Pittman, a life estate for and during
their respective lives, and for and during
the life of the survivor, all of their right,
title and interest in and under said
described real estate, together with the
1784
right to lease all of such oil, gas and other
minerals for any length of time and further
reserving unto themselves, or the survivor
thereof, for and during their lifetimes, the
right to collect and receive all bonuses,
rents, profits and proceeds derived from
the leasing and production of all oil, gas
and other minerals thereunder, together
with the right of ingress and egress, upon
the death of the survivor of the grantors,
W.K. Pittman and Ardath Pittman, such
reservation to expire and all of said oil, gas
and other minerals and mineral rights
herein reserved to immediately and automatically vest in the grantees herein,
namely, Larry Sager and Mary Ellen Sager
as joint tenants with full rights of survivorship, their successors, representatives and
assigns.
W.K Pittman survived Ardath Pittman. W.K.
Pittman died October 6, 1996. Bill and Frank
Pittman are the heirs of W.K. Pittman.
¶3 In 1995, a class action lawsuit was filed in
Beaver County (later transferred to Texas
County), seeking to recover underpaid oil and
gas royalties owed for production from various properties, including the real property at
issue in this case, from 1983 forward.3 Settlement agreements were reached in 1999 and
2000 between the class plaintiffs and Chase
Manhattan Bank, Union Pacific Resources
Company, Questar, and other defendants.
Then, following trial, a judgment was entered
in favor of the class plaintiffs against KaiserFrancis Oil Company in November 2001.4 The
settlement proceeds attributable to the real
property at issue here amounted to $73,832.73.
Of that amount, $73,030 was attributable to
production during the life estate.
¶4 In their Petition, the Pittmans sought a
declaratory judgment that, as heirs of Life Tenants, they were entitled to the settlement and
judgment proceeds attributable to production
during the life estate. The Sagers counterclaimed for a judgment declaring that all settlement and judgment proceeds resulting from
the class action were first ascertained and collectible after the life estate ended and therefore
belonged to the Sagers.
¶5 After hearing on the parties’ motions for
summary judgment, the trial court issued its
Order that, based on the undisputed facts, the
Sagers were entitled to judgment. The trial
court concluded that the life estate reservation
Vol. 77 — No. 17 — 6/10/2006
clause provided that all rights the Pittmans
had to collect and receive income (regardless of
the time of production) ended on the date the
life estate ended. The court concluded that
because all the settlement and judgment proceeds arising out of the class action were first
known, ascertained, determined, and receivable after the end of the life estate, the Pittmans
had no right to the proceeds of the class action
attributable to the real property here.
¶6 In addition to the express language of the
reservation clause, the trial court also based its
decision on the provisions of the Uniform Principle and Income Act (UPIA or “the Act”).5 The
trial court found that the UPIA governed the
income interest reserved by the Life Tenants.
The trial court rejected the Pittmans’ claim that
application of the UPIA to interests created
before its enactment was unconstitutional.6
The trial court concluded the current UPIA
applied to all proceeds from the class action
related to the real property in this case.
¶7 The trial court further found that under
60 O.S.2001 §175.301, the income interest of
Life Tenants terminated October 5, 1996, the
day before W.K. Pittman’s death. The trial
court found that 60 O.S.2001 §175.302 and
§175.303 provide that the Sagers are entitled to
all income actually received after October 5,
1996, regardless of when that income accrued.
¶8 The trial court also held that none of the
class action proceeds even accrued until after
the deaths of Life Tenants, because as to the
income at issue in that case, neither the right to
receive it nor its amount could be determined
with reasonable accuracy until after the class
action proceeded to settlement and judgment.
Accordingly, the trial court held that all income
attributable to the real property in this case
must necessarily have not accrued until after
the expiration of Life Tenants’ right to collect
and receive income.
¶9 The trial court entered summary judgment December 21, 2004. By Order filed
August 3, 2004, the trial court granted the
Pittmans’ motion to supplement their statement of undisputed facts, but denied the
Pittmans’ motion for new trial. The court
directed that the supplemental material
be considered part of the record, but the
court found that material did not change its
summary judgment decision.
Vol. 77 — No. 17 — 6/10/2006
¶10 Because there is no dispute of fact, we
address the trial court’s finding that the Sagers
were entitled to judgment as a matter of law.7
First, we agree with the trial court that the
reservation clause expressly terminates all
rights to collect and receive money related to
the mineral estate on the date of the final Life
Tenant’s death:
reserving unto themselves, or the survivor
thereof, for and during their lifetimes, the
right to collect and receive all bonuses, rents,
profits and proceeds derived from the leasing and production of all oil, gas and other
minerals thereunder . . . upon the death of the
survivor of the grantors, W.K. Pittman and
Ardath Pittman, such reservation to expire
and all of said oil, gas and other minerals
and mineral rights herein reserved to immediately and automatically vest in the (Sagers).
All of the mineral rights reserved, including
the right to collect and receive proceeds from
minerals under the real property, expired on
the date of W.K. Pittman’s death, and also on
that date those rights immediately vested in
the Sagers. As noted, that date was before the
class action settlement and judgment. To allow
the Pittmans to exercise the reserved mineral
rights after those rights had expired would
require ignoring the unambiguous language of
the reservation clause.8 Unambiguous terms in
a deed may not be interpreted by consideration of extrinsic evidence. Karaker v. Unknown
Heirs, Executors, Administrators, Devisees,
Trustees and Assigns of Karaker, 1966 OK 249,
434 P.2d 282, 284.
¶11 We next address the trial court’s application of the UPIA to the undisputed facts of
this case. One of the purposes of the UPIA is to
answer the question “when an income interest
ends, who gets the income that has been
received but not distributed, or that is due but
not yet collected, or that has accrued but is not
yet due?” Unif. Principal and Income Act 1997,
Prefatory Note. The life estate reserved by Life
Tenants gave them an income interest.
“Income interest” is defined in the UPIA as
“the right of an income beneficiary to receive
all or part of net income, whether the terms of
the trust require it to be distributed or authorize it to be distributed in the trustee’s discretion.” 60 O.S.2001 §175.102(6). As noted by the
trial court, the Act provides that an “income
interest” ends on the day before an income
beneficiary dies. 60 O.S.2001 §175.301(D).
1785
¶12 The UPIA provides express direction for
apportionment of income when an income
interest ends. When an income interest ends,
the trustee shall pay to the income beneficiary’s estate “the beneficiary’s share of the
undistributed income . . .” 60 O.S.2001
§175.303(B).
¶13 The definition of “undistributed
income” in section 175.303 is key to the outcome in this case: “ ’undistributed income’
means net income received before the date on
which an income interest ends. The term does not
include an item of income or expense that is due or
accrued . . . .” 60 O.S.2001 §175.303(A) (emphasis added). The Prefatory Note in the 1997
UPIA explains that the changed definition of
undistributed income is intentional, and it
expressly excludes accrued but not received
income from the definition of undistributed
income:
Clarifications and changes in existing
rules. A number of matters provided for in
the prior Acts have been changed or clarified in this revision, including the following:
(1) An income beneficiary’s estate will be
entitled to receive only net income actually
received by a trust before the beneficiary’s
death and not items of accrued income.
Section 303.
Under the 1997 revision, accrued but not
received income is not “undistributed income”
and therefore does not go to the income beneficiary, but instead goes to the holder of the
remainder interest — here, the Sagers.
¶14 The determination of whether income
beneficiaries are entitled to oil and gas royalties depends on application of the UPIA. See
Rush v. Matter of Appointment of Trustee, 1995
OK CIV APP 71, 897 P.2d 1150, 1153; Kumberg v.
Kumberg, 5 Kan.App.2d 640, 623 P.2d 510, 512
(1980); 18 A.L.R.2d 98, §10(c), supra; 60
O.S.2001 §175.411. The Act is therefore applicable to the determination of this case. Additionally, the version of the Act in effect at the time
the settlement and judgment proceeds were
determined is applicable. 60 O.S.2001
§175.602;9 In re Estate of Harold L. Jenkins, 97
S.W.3d 126 (Tenn.App.2002)(analyzed Section
602 as affected by Tennessee constitutional
provision that no law may impair vested
rights; determined that right to income for
UPIA purposes does not vest until it is
1786
received by the estate, and held that the UPIA
applies to income accruing after the effective
date of the revised UPIA). Here, as noted
above, the settlement and judgment proceeds
did not accrue until after November 1, 1998,
the date the Act went into effect in Oklahoma.
¶15 The undisputed facts show the Sagers
were entitled to judgment as a matter of law,
and summary judgment in their favor is therefore AFFIRMED.
MITCHELL, P.J., and ADAMS, J., concur.
1. Described as N/2 of NE/4, and S/2 of SE/4 of Sec. 18-3N-22E;
the NE/4 and the N/2 of SE/4 of Sec. 19-3N-22E; and the W/2 and
NE/4 of Sec. 20-3N-22E; (of the Cimarron Meridian, Beaver County,
Oklahoma).
2. The reservation clause in the 1973 warranty deed provided:
Reserving unto the sellers, W.K. Pittman and Ardath Pittman, a
life estate in and to all of their right, title, and interest in the oil,
gas and other minerals and mineral rights in and under said real
estate together with the right of ingress and egress for exploration, development, production and storage of such minerals,
and upon the death of the said W.K. Pittman and Ardath
Pittman, said minerals to vest in the then owner or owners of the
surface of the captioned real estate.
3. The opinion of the Oklahoma Court of Civil Appeals, which
affirmed the class action judgment, indicates the jury found KaiserFrancis Oil Company had underpaid royalties by charging improper
fees which reduced the royalties paid. See Note 4, below.
4. The judgment against Kaiser-Francis Oil Company, which
awarded total damages of over $73 million, was affirmed August 22,
2003 by the Oklahoma Court of Civil Appeals in Case No. 97,117 (cert.
denied). The record does not indicate what amount of the judgment
proceeds is attributable to the real property in this case, and what portion of that is due to production during the life estate.
5. The UPIA has been adopted in Oklahoma and is found at 60
O.S.2001 §§175.01 et seq.
6. The UPIA was first enacted in 1931 and was codified at 60
O.S.1941 §§175.1 et seq. A subsequent version was enacted in 1997. The
trial court relied on the 1997 version (adopted and effective in Oklahoma November 1, 1998) in deciding this case.
7. Summary judgment proceedings are governed by Rule 13,
Rules for District Courts, 12 O.S.2001, Ch. 2, App.1. Summary judgment is appropriate where the record establishes no substantial controversy of material fact and the prevailing party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Group, 1999 OK 7,
976 P.2d 1043, 1045. Summary judgment is not proper where reasonable minds could draw different inferences or conclusions from the
undisputed facts. Id. Further, we must review the evidence in the light
most favorable to the party opposing summary judgment. Vance v. Fed.
Natl. Mortg. Assn., 1999 OK 73, 988 P.2d 1275.
8. For this reason we disagree with the Pittmans’ claim that the
1985 reformed reservation clause shows the parties’ intent not to be
bound by the result required by the UPIA, discussed below. We agree
with the Pittmans that the reservation clause shows an intent to disregard the common law rule that, absent an agreement providing otherwise, royalties are principle and, therefore, go to the remainderman.
See V. Woerner, Rights of Tenant for Life or Years and Remaindermen inter
se in Royalties or Rents Under Oil, Gas, Coal, or Other Mineral Lease, 18
A.L.R.2d 98, §2 (1951). However, nothing in the reformed reservation
clause shows Life Tenants intended that the survivor’s estate would
collect or receive mineral income which was undetermined at the
death of W.K. Pittman.
9. That section provides that the 1997 revision of the UPIA
“applies to every trust or decedent’s estate existing on the effective
date of this act except as otherwise expressly provided in the will or
terms of the trust or in this act.” Here, the instrument under which the
Pittmans made their claim, and W.K. Pittman’s estate both existed on
the effective date of the current Act. The fund over which the Distribution Referee acts as trustee was created after the date of the current
Act.
Vol. 77 — No. 17 — 6/10/2006
2006 OK CIV APP 59
MAYS PLUS, INC., and AMERICAN HOME
ASSURANCE COMPANY, Petitioner, v.
ANNA ENNIS, and THE WORKERS’
COMPENSATION COURT, Respondents.
No. 102,642. March 3, 2006
SUSTAINED
Michael W. McGivern, Kelly M. Greenough,
Tulsa, Oklahoma, for Petitioners,
Mark E. Litton, Oklahoma City, Oklahoma, for
Respondents.
OPINION BY CAROL M. HANSEN, JUDGE:
¶1 Petitioners, Mays Plus, Inc. and American Home Assurance Company (collectively
Employer), seek review of a Workers’ Compensation Court (WCC) order which, inter alia,
found Respondent, Anna Ennis (Claimant)
was in need of continuing medical maintenance. We hold there was no error of law in a
three-judge panel allowing relief requested in
a supplemental appeal filed more than ten
days after the trial court’s order. Because the
order is supported by competent evidence, we
sustain.
¶2 Employer admitted Claimant sustained a
compensable injury and provided temporary
total disability benefits. The matter was tried
in the WCC in November 2004. The issues
tried were permanent partial disability, continuing medical maintenance, vocational evaluation, and reimbursement of lodging expenses
incurred while receiving medical treatment. As
parts of the order filed March 21, 2005, the trial
court, as relevant here, awarded lodging reimbursement of $76.23 and denied Claimant’s
request for continuing medical maintenance.
¶3 Claimant filed her Appeal to the Court En
Banc on March 31, 2005. Claimant appealed
only paragraph five of the trial court’s order
because it “did not address all the issues or
consider all of the evidence pertaining to
Claimant’s request for reimbursement of
expenses including lodging, mileage, and/or
prescriptions.” On June 10, 2005, before
Claimant’s appeal was heard by the threejudge panel, she filed a Supplemental Appeal to
the Court En Banc. In this “supplemental”
appeal, Claimant asserted the trial court erred
Vol. 77 — No. 17 — 6/10/2006
in not approving her request for medical maintenance when Employer did not object to the
request and it was supported by expert medical evidence.
¶4 The three-judge panel unanimously
modified the trial court’s order to allow continuing medical maintenance, but affirmed the
order in all other respects. Employer now
seeks our review of that order. Employer sets
forth its contentions with regard to alleged
WCC error in three appellate propositions, but
they are all premised upon Employer’s
assertion that Claimant failed to preserve the
continuing medical maintenance issue for
appeal.
¶5 Employer argues Claimant’s “supplemental” appeal to the three-judge panel was a
“nullity” because it was not filed within ten
days of the date the trial court’s order was
filed, as required by 85 O.S. 2001 §3.6(A).
Section 3.6(A) provides, in pertinent part:
Either party feeling himself aggrieved by
such order, decision or award shall, within
ten (10) days, have the right to take an
appeal from the order, decision or award of
the Judge [hearing the cause] to the [WCC]
sitting en banc.
¶6 Employer further argues the trial court’s
denial of continuing medical maintenance was
a “decision” within the meaning of §3.6(A),
thus requiring Claimant to have included that
issue in her appeal within ten days of filing of
the trial court’s order. Our consideration of
that argument, and the absence of an express
provision regarding “supplemental” appeals,
requires interpretation of §3.6(A) to determine
what must be done within the ten day statutory period to preserve issues for appeal. Interpretation and application of statutes presents a
question of law, which is before us for de novo
review. City of Durant, In re., 2002 OK 52, 50
P.3d 218. We will examine the WCC’s ruling
independently with no deference given to that
ruling. Fink v. State ex rel. Department of Public
Safety, 1992 OK CIV APP 169, 852 P.2d 776.
¶7 In construing statutes, relevant provisions must be considered together. Independent
Finance Institution v. Clark, 1999 OK 43, 990 P.2d
845. The particular provision before us, as set
forth in paragraph five above, has not been
interpreted by our appellate courts with a view
to how the ten day limit should be applied.
However, the Oklahoma Supreme Court has
1787
considered provisions in §3.6 which are substantially the same in relation to review by the
Supreme Court.
¶8 Another provision in §3.6 states:
The order, decision or award of a judge of
the [WCC] shall be final and conclusive
upon all questions within his jurisdiction
between the parties unless appealed
directly to the Supreme Court or to the
[WCC] sitting en banc as hereinbefore provided. Any party litigant desiring to
appeal directly from such order, decision
or award to the Supreme Court, shall,
within twenty (20) days after a copy of the
order, decision or award has been sent by
the Administrator to the parties affected,
commence an action in the Supreme Court
of the state to review such order, decision
or award.
¶9 While the wording is not identical, the
provisions allowing appeal to either the Oklahoma Supreme Court, or the WCC en banc,
require the same act, i.e. commencement of an
appeal within a statutory period. For appeal en
banc, §3.6 requires “filing with the Administrator a notice of appeal.” For appeal to the
Supreme Court, the section requires “filing
with the Clerk of the Supreme Court a certified
copy of the order, decision or award of the
[WCC] ... attached to the petition ... wherein
the complainant or petitioner shall make his
assignments or specifications as to wherein
said order, decision or award is erroneous or
illegal.”
¶10 Rule 1.103, Supreme Court Rules, 12
O.S. 2001 Chap. 15, App., implementing §3.6,
provides that “[a] petition for review shall be
deemed amended to include errors set forth in
the propositions in the Brief-in-Chief provided
that the errors or issues were presented to the
[WCC].” Thus, considering statutory language
which is effectively the same as that in controversy here, the Supreme Court determined the
parties were not bound by the issues initially
raised in the pleading initiating the appeal.
¶11 In allowing appeals to be amended, the
Supreme Court did not distinguish between
order, decision or award. It appears the Court, as
do we, considered those collective terms, that
is, all the determinations, whether one or several, handed down by the WCC at the same
time pertaining to the same case. Some confusion is created by common usage, whereby we
1788
speak of an “award” being made in a WCC
“order.” In fact, “order” was not included in
the provision before us as originally enacted.
At that time an original action in the Supreme
Court was allowed to review an “award or
decision” of the Industrial Commission, predecessor to the WCC. Laws 1915, c. 246, §13.
Statutory nomenclature has evolved, but we
find no indication the Legislature intends,
under present practice, to require more than
timely notice an appeal is to be taken from an
“order” in which various “awards” or
“decisions” may be included.
¶12 In an earlier case, Transwestern Oil Co. v.
Partain, 1940 OK 371, 188 Okla. 97, 106 P.2d
263, the Supreme Court noted one of the purposes of the predecessor statute to §3.6(A) was:
...to make available to parties whose rights
are subject to determination by the Commission a hearing before the Commission
en banc by the simple method of giving
notice of appeal within the time therein
described. (Emphasis added).
¶13 Although the Supreme Court’s rule regulating petitions for review before it is not considered mandatory precedent under the circumstances in the present case, its interpretation of §3.6 to allow amendment of the petition
for review is strongly persuasive. “Statutes
giving right to appeal are to be liberally construed.” Partain, 106 P.2d at 265. We hold an
appeal to the WCC en banc can be amended to
include any matter decided by the trial court in
the same “order” from which the party has initially timely appealed, but prior to any panel
hearing. The three-judge panel has jurisdiction
over the issues raised in such an amendment.
¶14 Although it has not expressly done so,
the WCC can impose by rule whatever procedural limitations it deems necessary to properly manage the intra-court appeal process so
that parties are not prejudiced by such amendments. Our holding here is not inconsistent
with the present WCC rules regarding en banc
appeals, particularly Rule 31. The purposes of
that rule are to require timely notice of appeal
and to ensure parties inform the three-judge
panel of the specifics of their appeal. Amendments to a timely filed Request for Review will
not impede either purpose.
¶15 The three-judge panel had jurisdiction
over the continuing medical maintenance
question raised in Claimant’s supplemental
Vol. 77 — No. 17 — 6/10/2006
appeal. The question is then whether there was
competent evidence to support the panel’s
determination to direct Employer to provide
the continuing medical maintenance in
the nature of prescription medications and
follow-up visits with Dr. Noel Emerson.
¶16 “The need for medical treatment, and
the extent of that treatment, must, as a matter
of necessity, be based on medical expert evidence.” Baxter v. Montgomery Exterminating,
1998 OK CIV APP 75, 962 P.2d 666. We find
there is the necessary competent evidence.
Employer’s own appellate brief states —
“Claimant’s medical expert, Dr. Russell Allen,
opined ‘...in view of the severity and multiplicity of her injuries, Ms. Ennis will need continuing periodic medical evaluation to determine
the need for any additional medical or surgical
care or prescription medications.’ ” Additionally, Claimant produced a May 12, 2004, medical
report from Dr. Yates, who had treated
Claimant. Dr. Yates opined Claimant “needs
ongoing medical maintenance.” Employer did
not object to the medical evidence of either Dr.
Allen or Dr. Yates. There is also lay evidence to
support the WCC’s finding. Claimant testified
she had been seeing her local physician, Dr.
Emerson every two months and that she
would be in uncontrollable excruciating pain
without the medication.
¶17 Further, at trial, Employer admitted the
need for certain medications and did not “have
a problem” ”if she’s going to be referred to her
local doctor.” Employer asked “that the order
be specific in what form the medical maintenance is to have and that also we have an
opportunity to request review of that after a
certain period of time. With exception of specificity of medications, the order modification of
the three-judge panel is consistent with
Employer’s at trial agreement. Although there
is conflicting expert medical evidence regarding the need for medication, the weight and
probative value of medical evidence is for the
determination of the Workers’ Compensation
Court, which may accept or reject such evidence in whole or in part. Burns v. Yuba Heat
Transfer Corp., 1980 OK CIV APP 37, 615 P.2d
1029.
¶18 We hold the three-judge panel did not
err as a matter of law in modifying the trial
court’s order to direct continuing medical
maintenance as requested in Claimant’s supplemental appeal. We find that modification is
supported by competent evidence. Accordingly, the WCC’s order is SUSTAINED.
BELL, P.J., and JOPLIN, J., concur.
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Vol. 77 — No. 17 — 6/10/2006
1789
The University of Oklahoma College of Law in cooperation with the College of Continuing Education present
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1790
Vol. 77 — No. 17 — 6/10/2006
BOARD OF BAR EXAMINERS
Applicants for July 2006
Oklahoma Bar Exam
T
he Oklahoma Rules of Professional Conduct impose on each member of the bar the duty to
aid in guarding against the admission of candidates unfit or unqualified because of
deficiency in either moral character or education. To aid in that duty, the following is a list of
applicants for the bar examination to be given July 25-26, 2006.
The Board of Bar Examiners requests that members examine this list and bring to the board’s
attention in a signed letter any information which might influence the board in considering the
moral character and fitness to practice of any applicant for admission. Send correspondence to
Charlotte Nelson, administrative director, Oklahoma Board of Bar Examiners, P.O. Box 53036,
Oklahoma City, OK 73152.
BROKEN ARROW
Tracy Michelle Beeson
Julia Michelle Bianchetta
Joe Robert Farar
Rebecca Lynn Hillock
Dhaliah B. Hoskinson
April Joanne Humphreys
Jacklynn Renee Loney
Timothy Jon Pickens
Shane Arthur Regier
Heather Kristin Taylor
Terry Steven Tollette
Dustin Joseph Vanderhoof
EDMOND
Brian Albert Buswell
Dolores Emily Chavez
Lance Chandler Cook
Elliott Clark Crawford
Grant Johnson DeFehr
Lacey Lee Egbert
Ceaser Aurelio Espinoza
Valerie Michelle Evans
Julia Marie Ezell
David Keith Gannaway
Kari Ann Hawthorne
Christopher Dale James
Shelley Lynn Johnson
Charles Scott Jones
Joi Elizabeth McClendon
Vol. 77 — No. 17 — 6/10/2006
LeAnne McGill
Stephanie Rae Meritt
Adam Eric Miller
Misty Jean Montgomery
Nisha Malik Moreau
Lori Ann Pirraglia
Shari Beth Ray
Joel Edward Scott III
Pete Gentry Serrata III
Jeremiah Louis Streck
Le’Shawn Renee’ Turner
Laura Liebert Walters
MOORE
John Roy Blevins
Timothy Dale Brown
Stephen Frank Bulleigh
Anthony Quinn Coleman
Benjamin Joshua McGoldrick
Keith Edmond Peters
NORMAN
Mirna G. Abyad
Brandon Hale Baker
Tosha Lee Ballard
Scott Thomas Banks
Shalia Celeste Bennett
Lisa Marie Blair
Johnny Rex Blassingame
John Brian Brandes
Joel Allen Bulleigh
Kelsey Laine
Buntyn-Jennings
Shannon Kay Burch
Katherine Rhymes Burum
Michael Burleson Bush
Emily Karen Cariker
Travis Richard Chapman
Ernest Wade Childers II
Laura Elizabeth Choppy
Matthew Allen Collins
Jack Daniel Craven
John Wesley Cusher
Tonya Ann Davis
John Joseph Dewey
Timothy John Doty II
Ryan Joe Duffy
Emiline Talitha Ebrite
Kathryn Scott Eidson
Jari Ann Erbar
John Jeremy Flaming
Cody Lee Fleming
Jacquelyn Leslie Ford
Benjamin JE Fu
Erik Michael Grayless
Brian DeWayne Hall
Brady Ross Henderson
Tonya K. Hinex-Ford
Nkem Anadi Houseworth
Amy Christeen Huddleston
Emily Jane Hufnagel
1791
Millicent Leanne Hughes
Amber Lynn Hurst
Douglas Michael Jacobson
Matthew David Jankowski
John Benjamin Jenkins
Michael Downing Johnson
Kevin Douglas Jones
Andrew Kerigan Kernan
Cory Elizabeth King
Emilie Pearl Kirkpatrick
Jeremy David Looper
Jamie Marie Mayer
James Dustin McBride
Beau Michael McMillin
John Keith McPhetridge
Elisa Linda Mendoza
Andrew Scott Mildren
Andrea Suzanne Miles
Erik Carl Motsinger
James Richard Page
Mark Bradley Perkins
Andrew B. Peterson
Cori Dawn Powell
Clinton Wade Pratt
Joshua Dale Price
Cherish King Ralls
Jaclyn Jean Rivera
Johnathan Louis Rogers
Damon Edwin Sacra
Brynna Schelbar
Natasha Michelle Scot
Robert Joseph Sher
James Andrew Simms
Lora Sue Smart
Tyson Thomas Stanek
Nikki Bly Stangarone
Teresa Michelle Stephens
Elizabeth Anne Tennery
Jennifer Marie Thompson
Joseph Michael Vorndran
Richard Joseph Vreeland
Patrick William Wandres
Richard Larry Warren Jr.
Jillian Dale Welch
Tiffany Jane White
Gary Wayne Wolfe
Xin Zhang
OKLAHOMA CITY
Timothy Luke Abel
Blayne Taylor Allsup
Thomas Ralph Armstrong
1792
Furqan Sunny Azhar
Elizabeth Joan Barnett
Anthony Lorinzo Bonner
Robert Charles Brown
Adam Nathaniel Bush
Bryan Wesley Caddell
Charles Edward Chapin
Tamya Bernyce Cox
Nancy P. Crowe
Dustin Allen Davis
Susan Leigh Dellamea
Matthew Nicholas Echols
Nicholas Gregory Farha
Anthony Joseph Ferate
Laura Jane Finley
Jennifer Leigh Fischer
Rebecca Anne Birdsbill Ford
Philip Anthony Friesen
Charles Wayne Gass
Dustin Thad Gower
Todd Lance Grimmett
Adam Clayton Hall
Andrew Stroud Harlow
Kristen Louise Hartman
Patrick JoHugh Holman
Julie Ann Howard
Ryan Robert Howard
Kacey Lee Huckabee
Eric Lee Huddleston
Khalid Khader Hussein
Andrew M. Ihrig
Shawnnessy M. Jiwa
Christopher Dwight Jones
Ryan Taylor Kackley
David Joseph Kanehl
Robert Samuel Kerr IV
Jonathan Bennett Krems
Dustin Shane Kurtz
Samuel Carl LaSala
Amy Adele Lasater
Jana Kay Legako
Heather Kaylie Little
Lisa Leigh Lopez
Matthew John Love
Matthew James Major
Thomas Bucky McLemore
Tallena Christine McMichael
Patricia Blair McMillin
Elton McWilliams Jr.
Justin Don Meek
Renee Nicole Metcalf
El Fairo A. Mitchell
Elisabeth Esther Muckala
Kyle Donald Murphy
James Patrick Murray
Brent Allen Nyberg
Kristen Marie O’Connor
Jason Anthony O’Neal
Drew Thomas Palmer
Todd Edward Pauley
Jeffrey Robert Pinter
Patricia Anne Podolec
Leslie Kucko Porter
Michelle Lynne Powell
Molly Elizabeth Priest
Amelia Beth Recla
John Jacob Reeves
Matthew Ward Reser
Faye Christine Rodgers
Charles Jarrod Rogers
Samantha Criswell Russell
Thomas R. Russell
Stone Butner Sanders
Jennifer Diane Shaw
Phillip Scott Spratt
Scott Douglas St. John
Jeremy Brent Stillwell
Bryan Lee Stratton
Marla R. Stripling
Kelli Jo Stump
Jahni Suzanne Tapley
Mary Delores Teal
Anh Kim Tran
David Christopher Treadwel
Shanita Renee Tucker
Tina Kay Walker
John Lee Walkup
Cory Thomas Williams
Mark Edmund Wilson
Alan R. Woodland
James Tyler Worten
Ginger Kay Wrightsman
Rodney Thomas Yancy
Nima Zecavati
OWASSO
John A. Colfax
Laura Nicole Fuchs
Ryan Michael Fuchs
Sean Michael McConnell
Lindsay Denece Woodard
Jennifer Lee Woods
Vol. 77 — No. 17 — 6/10/2006
TULSA
Lauren Lester Allison
Emilyn Ann Arbital
William Tyler Beaty
Thomas Anthony Biolchini
Lucas Alan Bomer
Taylor Alan Burke
Kevin Ray Carlson
June Camille Carpenter
Craig Allen Carson
Bridget Marie Carter
Maria Eloisa Cervantes
Lawrence Matthew Corrales
Daniel Connelly Cupps
Jason Mark Dennis
Jeannine May Doughty
Elizabeth Ann Edwards
Jordan Burke Edwards
Grant Maxwell Ferris
Jesse Louis Fettkether
Ryan James Fulda
Kristin Marie Fulton
Jason Winslow Galbraith
Lisa Dianne Garcia
Tracey Ann Garrison
John Nicholas Gerner
Adam Dice Grandon
Donald David Haggerty
Matthew Delano Hall
Jordan Elijah Helmerich
Katrina Susann Holley
Trevor Logan Hughes
Zachary David Hyden
Latisha Irwin
Vaughn Iskanian
Antonio LaRon Jeffrey
Rebecca Lise Kifer
Kevin Allen Kornegay
Janice M. Lewis
Marvin Geovanny Lizama
James Robert Lloyd II
Scott Wayne Long
Billy Wade McCool
Michael Francis Mertens
Dwain Elliott Midget
Bryan Joseph Nowlin
Jaimee Leigh Reid
Jonna Lynn Reynolds
Kimberly Ann Ricci
Sloane Ryan Rojas
Bryan England Rowland
Vol. 77 — No. 17 — 6/10/2006
Barrett D. Smith
Robert Raymond Snow
Clint Alan Soderstrom
Erin Nicole Stackenwalt
Matthew Allen Sunday
Johannes Jurgen Van Staden
Andrew Gordon Wakeman
Sherry Lynn Walkabout
Kristin Lynn Walters
Jeremy Kalon Ward
Jacqueline Marie Wells
Sharolyn Colleen Whiting
Erin Ashley Williams
Eugene Cameron Wink
Kathie Marie Young
Elizabeth Grace Zeiders
Thomas Miller Zeiders
YUKON
Tommie Craig Gibson
Nathan Hugh Harper
Jennifer Linn Hoskins
Alton Seth Killman
Diana Trang Ngo
OTHER OKLAHOMA
CITIES AND TOWNS
Jennifer Denoya Barnes, Ada
Holly Rachel Berry-Seaton,
Chickasha
Aaron Duane Bundy, Jenks
Heather Melissa Cantrell,
Muskogee
Jennifer Marie Carter,
Lawton
Ross Newman Chaffin,
Ardmore
Paul Jared Choate, Seminole
Charlotte Linn Claborn, Ada
Mary Elizabeth Clark,
Wilson
Nathan Lane Cook,
Collinsville
Michelle Renee Cordello,
Guthrie
Daniel Jason DeLeon,
Elk City
William Daniel Drake,
Skiatook
Amanda Richelle Ewing,
Lexington
Angelia Gail Folks,
Collinsville
Suzanne Pearl Grimes,
Bethany
Bryan Miles Harrington,
Miami
Amanda Brook Heath,
Holdenville
Kristen Anne Hilty,
Lexington
Theresa Jane Holtz, Ramona
Michael Steven Horn, Jenks
Mark Boyd Houts,
Midwest City
Carol Ann Hudson,
Bartlesville
Crystal Raelynn Jackson,
Tahlequah
Merrick Shane Jackson,
Bixby
Kristin Ranell Jarman, Davis
Sarah Mary Jernigan,
Chickasha
Jefferson Troy Keel, Sulphur
Ryan Dean Kiesel, Seminole
Andrew Davis Lawrence,
Enid
Andrew Kevin Long,
Guthrie
Alison Renee’ McCalla,
Mustang
Jim Charles McGough,
Mannford
Tesha Lemean McMinn,
Tinker AFB
Kerry Lee McReynolds,
Smithville
Andrea Leigh Medley,
Claremore
Mark Damon Melton, Davis
Tabitha Lynn Mills, Blair
Jennifer Diana O’Daniel,
Tahlequah
Josh Ryan Parsons, Shawnee
Neelam Ashok-Kumar Patel,
Newkirk
Brandi Dawn Robertson, Jay
Stephen Wayne Sasser,
Guthrie
Kelli Jo Schovanec, Enid
Rachel Lynn Shankle,
Park Hill
Bruce Duane Sharp, Noble
Justin Ryan Sharp, Jenks
1793
Kaycie Michelle Sheppard,
Roff
Tasha Anya Steward,
Del City
Shannan Gwen Tucker,
Pawnee
Winston Charles Ulrey Jr.,
Miami
Aimee Melissa Vardeman,
Lawton
Christina Marie Vaughn,
Collinsville
LaTrisha Ann Wald,
Mustang
David Jason Wells,
Durant
Andrea Lea Worden, Noble
ARKANSAS
Yvette Renee DuVall, Rogers
Michael Scott Hall,
Bentonville
Angel Renee Smith,
Canehill
CALIFORNIA
Elliott Paul Anderson,
Westlake Village
Gloria Dean Goudge,
Fremont
Alicia Emily Walsvick,
Santa Rosa
ILLINOIS
Tiffany Ann Blake,
Chicago
Daniel Thomas Giraldi,
Marion
Jill Elizabeth Webb,
Oak Park
KANSAS
Matthew Lewis Christensen,
Lawrence
Annette Pearl Howlett,
Mulvane
Chad Alexander Locke,
Leawood
Yonne Anne Tiger, Lawrence
TEXAS
Paul Alexander Batrice,
Austin
Ryan Lee Dean, Dallas
Christina Meyer Deaton,
Austin
Maria Enriqueta Gonzalez,
Houston
Robert Lee Harmon,
Colleyville
Ann Ellen Hawkins,
Brownsville
Gabriel Dean Herald,
Coleman
Mildred Yvette Howard,
Fort Worth
Rogers Samuel Hughes,
Houston
Caroline Myoshii Lee,
DeSota
Michael Dwaine Lunday,
Dallas
Avedis Harout Marzwanian,
Highland Village
Mandi Jenae McBrayer,
Burleson
Kellie Michelle Nelson,
Dallas
Saul Gilbert Olivarez,
Grand Prairie
Rebecca Ann Ward,
Midlothian
Clyde Russell Woody, Dallas
OTHER STATES AND
COUNTRIES
Courtney Lynn Bru,
Atlanta, GA
Breanna Marie Grove,
Kansas City, MO
Timothy Paul Kent,
Macon, GA
Jason Michael Kreth,
Madison, TN
Brett Daniel Liles,
Tucson, AZ
Vincent Thomas Lyon,
Rockville, MD
Amy Elizabeth Gramolini
Mangum, Fort Drum, NY
Amy Glass Piedmont,
Clearwater, FL
Carolina Rubio,
Bogota, Columbia
Sidney Davis Smith Jr.,
Honolulu, HI
Alan Ray Spies, Oxford, MS
Lindsey Michelle Thomas,
Virginia Beach, VA
Philip Dean VanTrease,
Portland, OR
Krisanne Marie Warren,
Fort Collins, CO
Rachel Elizabeth Williams,
Baton Rouge, LA
James John Zonas,
Naples, FL
Listen Up!
Want a FREE listing on the OBA’s lawyer listing service? Go to www.okbar.org and
log into your myokbar account. Then click on the “Find a Lawyer” link.
1794
Vol. 77 — No. 17 — 6/10/2006
IN MEMORIAM
W
illiam Clayton Boston
Jr. of Oklahoma City
died May 25. He was born in
Hobart Nov. 29, 1934, and
graduated from Carnegie
High School in 1952. He
served as a medic for the
U.S. Sixth Infantry in Berlin,
Germany, from 1956 – 1958.
He earned a B.S. in agricultural economics from OSU, an
LL.B from the OU College of
Law and a master of laws
(taxation) from New York
University. He served as
CEO, director and trustee of
several community and civic
organizations, including several years as board president
of Ballet Oklahoma. Memorial
contributions may be made to
Oklahoma Foundation for the
Humanities, for whom Mr.
Boston served as trustee and
chair.
W
. Timothy Dowd of
Oklahoma City died
April 30. He was born May 3,
1927, in Muskogee and grew
up in Denison, Texas. He
served in the U.S. Army
during World War II. He
received his undergraduate
degree from Xavier
University in Cincinnati,
Ohio, then returned to Oklahoma to work for several
newspapers, including the
Oklahoma City Times and the
Tulsa Tribune. He graduated
from the University of Tulsa
College of Law in 1957. He
served in the Oklahoma
House of Representatives and
later was named executive
director of the Interstate Oil
and Gas Compact Commission, a position he help from
1969 until his retirement in
Vol. 77 — No. 17 — 6/10/2006
1993. He stayed active with
Service Corps of Retired
Executives after retiring. He
was a past president of the
Oklahoma City Petroleum
Club and a member of the
downtown Kiwanis Club.
Memorial contributions may
be made to St. Eugene
Catholic Church.
F
unston Pershing Flanagan
of Walters died March 27.
He was born June 5, 1916, in
Keller, Texas, and graduated
from Walters High School. He
attended Cameron College
and graduated from the Oklahoma City College of Law. He
was admitted to the bar in
1942. During World War II,
he served in the U.S. Army
Air Corps Intelligence Division. He returned to Walters
in 1946 and practiced law for
more than 64 years. He
served as county judge, county attorney, Court of Civil
Appeals temporary justice,
Cotton County Election Board
secretary and was a member
of the Cotton County Excise
Board. Among his survivors
are OBA members Kathleen
Flanagan Collins, Walters;
Patricia Flanagan, Yukon;
Michael Flanagan, Walters;
Janis Flanagan Darley, Yukon;
and sons-in-law William
Flanagan, Yukon; and Lon
Jackson Darley III, Yukon.
E
lmer M. Kunkel of Tulsa
died March 12. He was
born Feb. 9, 1924, in
Thomasville, Pa. Born on a
farm, he left high school
before graduation to serve in
the Civilian Conservation
Corps. He enlisted in the
U.S. Navy in December 1941
and served in both the
Atlantic and Pacific fleets.
He received a Presidential
Citation for his service
aboard the U.S.S. Pope, part
of a six-ship task force that
captured a German submarine in 1944, marking the
first time since 1815 that an
enemy vessel had been
boarded and captured during battle at sea. After the
war, he remained in the
reserves until 1955. He
moved to Tulsa in 1953, ultimately earning an M.B.A. and
J.D. from TU. Also a CPA, he
retired from his business
career as a federal tax
supervisor for the Williams
Companies. He also enjoyed
farming and outdoor
pursuits. Among his survivors is his daughter, OBA
member Andrea Kunkel of
Tulsa. Memorial donations
may be made to the American
Cancer Society and the
Tristesse Healing Hearts Grief
Center.
R
obert Edward
Manchester of Norman
died June 3. He was born
June 14, 1936, in Springfield,
Mass. He joined the U.S.
Marine Corps at age 17 and
served in Korea. Following
his military service, he graduated from Central State University in 1962 and received
his law degree from Oklahoma City University in 1967.
Throughout his career, he
represented the Oklahoma
City Fraternal Order of Police
and Otis Elevators. His
favorite things in life were
family, OU football and prac-
1795
ticing law. Among his survivors is his daughter, OBA
member Diane Manchester
Drum of Norman. Memorial
contributions may be made to
the Oklahoma City Fraternal
Order of Police, Lodge 23;
U.S. Marine Corps Coordinating Council of Oklahoma and
the University of Oklahoma
Sooner Club.
L
owell T. (Tom) Sawyer of
Enid died April 23. He
was born March 6, 1919, in
Topeka, Kan. He enlisted in
the U.S. Navy in 1942 and
served in the South Pacific
on the U.S.S. Hancock. After
his discharge he began studies at OU, earning a B.S. in
business and an LL.B in 1950.
He was also a CPA, and he
practiced in the areas of taxation, business and estate plan-
ning for more than 35 years.
He was a member of the Enid
Lions Club and the Chamber
of Commerce, of which he
had served as director and
committee chairman. He was
private pilot, enjoyed aviation
as a hobby and was a charter
member of Christ United
Methodist Church. Memorial
donations may be made to
Golden Oaks Chapel or
Hospice Circle of Love.
Help is just a
phone call away.
1 (800) 364-7886
Confidential. Responsive. 24/7.
Lawyers Helping Lawyers
Before it’s too late.
NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT
OF william Francis Gardner, SCBD 5
# 175
TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION
Notice is hereby given pursuant to Rule 11.3(b), Rules Governing
Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be
held to determine if William Francis Gardner should be reinstated to
active membership in the Oklahoma Bar Association.
Any person desiring to be heard in opposition to or in support of the
petition may appear before the Professional Responsibility Tribunal at
the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Oklahoma
City, Oklahoma, at 9:30 a.m. on Tuesday, July 18, 2006. Any person
wishing to appear should contact Dan Murdock, General Counsel,
Oklahoma Bar Association, P. O. Box 53036, Oklahoma City, Oklahoma
73152, telephone (405) 416-7007, no less than five (5) days prior to the
hearing.
PROFESSIONAL RESPONSIBILITY TRIBUNAL
1796
Vol. 77 — No. 17 — 6/10/2006
Mandates Issued
THE SUPREME COURT
Thursday, May 11, 2006
101,068
In the Matter of the Income Tax
Protest of Casey Dean Alani.
Casey Dean Alani v. State of Oklahoma, ex rel., Oklahoma Tax Commission.
101,399
Energy Exchanger Company and
American Interstate Insurance
Company v. Terry Hill, Cust-OFab, Legion Insurance Company,
Oklahoma Property & Casualty
Guaranty Fund and The Workers’
Compensation Court.
101,438
St. Andrews United Methodist
Church, a corporation v. Brett D.
Knapp v. Oklahoma Conference
Of The United Methodist Church.
101,620
Chesapeake Operating, Inc. v.
Betty Ruth Selman.
101,656
In the Matter of the Estate of James
Mack Petty, aka James Petty aka
J.M. Petty aka J.M. (Babe) Petty
aka James Pettey aka James Mack
Pettey, Deceased
Janet Nicholas, as Personal Representative of the Estate of Grace
Petty, Deceased v. Paul Marcus
Parks and Leann Parks McElyea.
102,179
102,345
102,460
Jess E. Garrison, Sheryl D. Crockett and Jess W. Garrison, Martha
A. Garrison & Bruce E. Garrison v.
Moore Funeral Home, Inc., IFCYork, Inc., fka York Gasket Company, The York Group, Inc. & Service Corporation International
dba Rose Hill Memorial Park.
102,490
Altex Resources Inc., and Corporation Commission of The State of
Oklahoma v. Chaparral Energy,
LLC.
102,642
Mays Plus, Inc. and American
Home Assurance Company v.
Anna Ennis and The Workers’
Compensation Court.
102,862
Linda Warren, an individual;
Brandy Parker Munoz, an individual; Lisa Miller, an individual; and
Rick Parker, an individual v. Donald J. Timberlake, an individual.
103,088
Dennis Graves and Ella Graves v.
Automax Used Cars III, LLC.
103,120
Lummus Construction Co., and
CNA Insurance Group/Continental Casualty Co., v. Clarence Pearson and The Workers’ Compensation Court.
103,204
Glen Edward Calvin, III v. State of
Oklahoma.
Ronnie D. Short v. Multiple Injury
Trust Fund and The Workers’
Compensation Court.
99,975
Sydney Kennedy v. Dayton Tire
and Rubber Co.; Old Republic
Insurance Co. and The Workers’
Compensation Court.
Jeremy Mellegaard v. W. H. Braum
and Mary E. Braum, individuals
and W.H. Braum, Inc., a corporation.
98,361
The Board of County Commissioners of Muskogee County v.
Edward L. Lowery and Mary L.
Lowery, husband and wife, Rural
Water District No. 5 and Muskogee County Treasurer.
98,362
Jack E. Whitten and Doris M.
Whitten, husband and wife; Rural
Water District No. 5 and the
Muskogee County Treasurer.
102,354
Don W. Tucker v. Chesapeake
Operating, Inc. and Chesapeake
Exploration Limited Partnership.
102,430
Janelle H. Staltzlen v. Greggory
Kendall Fritz.
102,448
Edward A. Pollock, an individual
v. A. Passmore & Sons, Inc.
102,449
Gary Randolph, individual v. A.
Passmore & Sons, Inc.
Vol. 77 — No. 17 — 6/10/2006
1797
98,363
Richard Hyslope and The Farm
Credit Bank of Wichita, Rural
Water District No. 5; and the
102,137
Kimberly Hansen and Larry
Hansen, husband and wife, Oklahoma residents v. Academy, LTD.,
L.P., d/b/a Academy Sports &
Outdoors, Inc., a Texas Partnership.
98,531
Paul Hobbs and Diann Hobbs,
husband and wife; Mary Murl
Barrett; Bank of Cherokee County,
Rural Water District No. 5; and the
102,158
Everhome Mortgage Company v.
Dick Robey & Jeronia Kay Roby,
husband and wife and Commonhealth Mortgage Company of
America, L.P.
102,178
Alternative Medicine of Tulsa,
Inc., v. Maranda Cates v.
Progressive Preferred Insurance
Company.
102,258
Ab’dullah Lamar Rashid Muhammad v. Debbie L. Morton, Director’s Designee and Emma Watts,
Unit Manager.
102,415
Claudia Cogliser v. Duilio Dobrin.
102,443
Thom Marak v. Oklahoma Department of Mental Health, Compsource Oklahoma, f/k/a State
Insurance Fund and The Workers’
Compensation Court.
99,822
State of Oklahoma, Department of
Human Services Child Support
Enforcement Division and Sue A.
Galloway v. Michael J. Thomas.
100,262
3M Dozer Servicve, Inc., v. Barbara Moore Baker, Mark D. Stewart and Sherry L. Stewart.
100,449
In Re: The Marriage of Megan R.
Carter, Now Mills v. Brandon W.
Carter.
101,392
Lora Gail Ray v. Kenneth Allen
Ray.
100,985
City of Midwest City, Oklahoma v.
International Association of Firefighters, Local 2066 and Mike
Womack.
102,795
Moshe Tal v. David M. Harbour
and Nancy L. Coats, et al.
102,796
Moshe Tal v. Niles Jackson, et al.
101,618
In the Matter of the Adoption of
D.L.A., a minor child. Steven Earl
French and Merri Annette French
v. Michael P. McKenrick.
102,811
101,749
Janie J. Gonzalez v. Wade Sessom,
DDS and Carrie Sessom, DDS.
101,788
Pat H. Hayes, Personal Representative of the Estate of Leona James
Hayes v. Ryland L. Rivas.
Trent Nesmith and Brooke
Nesmith in their capacities as copersonal representative of Leslie
W. Nesmith and in their capacities
as next of kin of Leslie W.
Nesmith; et al. v. Mitsubishi
Heavy Industries, Ltd., a Japanese
Corporation; et al.
102,827
In the matter of the Estate of
Dean
Wilmoth,
Leonard
Deceased: Donna McReynolds,
Carla Roop and Marsha Snyder v.
Teresa Gayle Ray, Allen Ray
Wilmoth, Linda Wilmoth and
Deanna Walker.
102,842
Continental Resources, Inc., v.
Baytide Petroleum, Inc., et al.
102,897
Multiple Injury Trust Fund v.
Gayla Acox and The Workers’
Compensation Court.
101,931
Oklahoma Nursing Home SIA
(Group #75060) v. Paula L.
McDowell, Ringling Nursing
Home and The Workers’ Compensation Court.
101,944
Douglas Brandon Whitson v. City
of Frederick and The Workers’
Compensation Court.
101,965
1798
In the Matter of the Estate of
Jimmy Lou Hall, Deceased.
Frankie L. Hall v. Lillian Hall and
Rebecca Hall.
Vol. 77 — No. 17 — 6/10/2006
102,900
Keystone Equipment Company v.
International Fidelity Insurance
Company and Federal Insurance
Company and The Weitz Company, LLC v. Bryan Adair Construction Company and Bryan Adair.
102,971
Carol Rethford v. Charles Emmerling.
103,001
In the Matter of the Estate of Keith
E. McNeal, Deceased with Nargiz
Parfenova McNeal v. The Revocable Inter Vivos Trust of Keith E.
McNeal and Gloria McNeal; et al.
103,011
Joe L. Hall v. Secured Capital
Management, a Division of PennWarranty Corporation.
103,024
In re the Marriage of Catherine J.
Raspberry v. John M. Raspberry.
103,124
Hong Thi Vu as parent & next of
kin to Ken V. Pham, Deceased v.
Linda J. Truitt, M.D., and Linda J.
Truitt, P.C., and Deaconess Hospital.
103,125
Leeanna M. Schwab v. Robert
Eugene Schwab.
103,147
In re the marriage of Jerri Michele
Blythe v. Samuel J. Blythe.
103,180
Robert Elliott and Kathy Elliott v.
Caleb McCaleb, McCaleb Homes,
Inc., and McCaleb Land and
Development, LLC.
101,310
In the Matter of the Estate of
Donovan Myrl Watson, Deceased,
Myrl Louise Watson, Deceased
and Donovan-Perren Watson,
Deceased. Jessica Donn Watson v.
Sylvia Watson and Tina Marie
Lovelady, personal Representative
of the Estate of Donovan Myrl
Watson.
101,333
Altex Resources, Inc. and Corporation Commission of The State of
Inc.
101,367
Robert Teters, individually and as
Administrator of the Estate of
Yolanda Teters, deceased v. Ford
Motor Company and Billingsley
Ford of Lawton, Inc., et al.
101,510
In the Matter of the Estate of Anh
Nhat Nguyen, Deceased. Xuan
Troug Do, Personal Representative of the Estate of Toan Thi Do,
Deceased v. Tuyet Ngoc Nguyen,
Personal Representative of the
Estate of Hong Nguyen, Deceased
and Hang Ha Nguyen-Bui, Personal Representative of the Estate
of Anh Nhat Nguyen, Deceased,
Personal Representative.
101,820
Keystone Equipment, Inc. and the
Empire Fire & Marine Insurance
Company v. City of Tulsa.
101,823
DRC, Inc. v. State of Oklahoma, ex
rel., Oklahoma Department of
Transportation.
101,829
Richard Lynn Dopp v. Northfork
Correctional Facility; Corrections
Corporations of America; Rick
Hudson, John Wisener and Corey
McNabb.
101,848
Chaparral Energy, LLC, formerly
Chaparral Energy, Inc., v. Dyne
Exploration Company.
101,864
In the Matter of the Estate of Pattie
M. Brown, Deceased Susie Elliott
v. Janet Frazier, Special Administrator of the Estate of Pattie M.
Brown, Deceased.
101,874
Connie Williams, Natural Daughter & Next of Kin for Wanda Jean
Williams, Deceased v. Leisure Village Health Care Center.
COURT OF CRIMINAL APPEALS
Monday, May 15, 2006
C-2005-1028
Henderson v. State of Oklahoma.
C-2005-519
Price v. State of Oklahoma.
S-2005-854
State of Oklahoma v Younger.
C-2006-34
Hass v. State of Oklahoma.
D-2003-610
Hogan v. State of Oklahoma.
COURT OF CIVIL APPEALS
100,887
Don Strawn v. Paul Goodin.
100,991
James D. Slicking, Jr., v. Erica Anne
Sicking, now Dorwart.
101,133
Dianne Atkins v. Robert Atkins.
Vol. 77 — No. 17 — 6/10/2006
1799
101,966
Don Breeden, Jr., v. Uponor Aldyl
Company, Inc., a Delaware Corporation and Rainmaker Sales, Inc.
102,009
City of Tulsa v. Keith A. Miller and
The Workers’ Compensation
Court.
102,086
Doris Ann Adam v. John Fleeger,
individually and John Fleeger dba
Rolling Hills Farm.
102,120
In the Matter of: NWJ & TKJ,
alleged deprived children. Marla
Johnson v. State of Oklahoma.
102,498
Bill Pittman and Frank Pittman v.
Larry Sager, Mary Ellen Sager and
Mike McDonald, in his capacity as
Distribution Referee.
102,513
Wilbert Parker v. Auto Club of
Oklahoma, Hartford Underwriters Insurance Company, Insurance
Carrier and The Workers’ Compensation Court.
99,959
Scott D. Huxtable v. Cristin A.
Huxtable, now Guardado.
102,231
Morris E. Bellis, M.D. v. Mercy
Health Center, Inc.
100,492
Kimberly S. Weaver (Formerly
Close) v. David E. Close.
102,245
Roger Hedgecock, as parent and
next friend of Taylor L. Hedgecock, a minor v. Rock Creek Independant School District.
100,707
David Michael Johnson v. Erica
Gwyn Johnson.
100,729
Tana Artussee, Virginia Tedlock,
Phyliss Savage, Marion Croney,
and Daniel Artussee v. John
Artussee, Jr., Judy Artussee, Allen
David Artussee and Kathy D.
Artussee.
100,924
Peaceable Village, Inc., v. George
David Sadler.
100,998
Jeremy Sears v. Felicia Sears, now
Hudlow.
101,003
Maria Elena Garcia v. Jerome
Charles Birts.
101,173
Wayne Henry Ford v. Tanya S.
Martin, individually and for Hollie Martin.
101,193
Lisa Thompson and Rick Thompson v. Jeff Krantz and Powers
Radiology, Inc., an Oklahoma Corporation.
101,229
Bank of Oklahoma, National
Association, Successor Trustee of
the W.T. Richardson Trust Created
Pursuant to Trust Agreement
Dated November 1, 1966 and as
Thereafter Amended v. The City of
Oklahoma City and Behrooz &
Melody Darakhshan.
101,444
Michelle A. Cue (now Blumer) v.
Kevin L. Cue.
101,485
Brigid Lenore Larson, RN v. Oklahoma Board of Nursing.
102,261
Pauline Crook v. First National
Bank & Trust Company, Denzil
Oswalt and Brenda Marshall.
102,267
Brian C. Lee and Sandra Lee v.
Enid Motor Speedway, an Oklahoma Corporation and Shawn
Nickolaus Hughes.
102,295
102,357
Alliance Steel, Inc., v. Cecil Long
and The Workers’ Compensation
Court.
Clifford B. Renegar, if living, and
if not his Respective creditors and
unknown heirs, executors, administrators, devisees, legatees, beneficiaries, successors and assigns,
immediate and remote; and any
other unknown claimants to the
subject lands, Gayla Hooper,
Administrator, Estate of Clifford
B. Renegar, v. Walnut Grove
Development, LLC.
102,410
Hobby Lobby and Pacific Employers v. Deborah Rhoades and The
Workers’ Compensation Court.
102,491
Altex Resources, Inc., and Corporation Commission of the State of
LLC.
102,492
1800
Altex Resources, Inc., and Corporation Commission of the State of
LLC.
Vol. 77 — No. 17 — 6/10/2006
101,507
TAP/Architectural Partnership v.
State of Oklahoma, ex rel., Department of Central Services.
101,622
Thomas Price v. Leona M. Price.
101,763
Marcy Montgomery, an individual
and Robert Montgomery, an individual v. Timberbrook Homeowners Association, Inc., an Oklahoma
Non-Profit Corporation v. Swim
Management and Consulting Services, Inc., d/b/a Swim Management d/b/a Miller Swim School,
an Oklahoma Corporation.
102,422
Porter Neal v. American Woodmark Corp., and The Workers’
Compensation Court and St. Paul
Travelers Insurance Co.
102,437
Multiple Injury Trust Fund v.
Johnny Diamond and The Workers’ Compensation Court.
102,478
David L. Moore v. Mustang Public
Schools, Compsource Oklahoma
and The Workers’ Compensation
Court.
102,547
In the Matter of E.P.B., D.M.S. &
P.S., adjudicated deprived juveniles. Venessa Bradford v. State of
Oklahoma.
101,813
Gilford Delozier v. Century Life
Assurance Company.
101,883
Wayne Barlow and Kimberly Barlow, husband and wife v. FRN of
Tulsa, LLC d/b/a Ford of Tulsa.
102,613
Hiland Diary Foods Company,
LLC v. Oklahoma Tax Commission.
102,000
Leroy James Sadler v. Unit
Drilling Company and Unit Corporation, and The Workers’ Compensation Court v. Albert Wheeler,
III, Attorney of record for claimant
v. Tom Wilcox, Attorney Lien
Claimant.
102,751
Trace, Inc. and Commerce &
Industry Insurance Company v.
Eletra K. Great and The Workers’
Compensation Court.
102,758
Okmulgee Memorial Hospital and
Commerce & Industry Insurance
Company v. Monica B. Zeier and
The Workers’ Compensation
Court.
102,844
Southern Oklahoma Resource
Center & CompSource Oklahoma
v. Charlene Sparks and The
Workers’ Compensation Court.
103,126
H & En, Inc. v. State of Oklahoma,
ex rel., Department of Labor.
102,073
Norman Robert Henson v. Regina
Henson.
102,207
Karen J. Craig v. Independent
School District #1-Tulsa Schools
(Own Risk #11260).
102,421
Vu Thanh Nguyen v. Kim Hue Thi
Vo.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA
NOTICE OF LOCAL RULE CHANGE
Pursuant to Rule 83, Fed.R.Civ.P., the Court hereby gives notice and opportunity for comment
on changes to Local Civil Rule 79.1. The rule change allows certain sealed matters to be filed
electronically. Copies of both the new and old Local Civil Rule 79.1 are available at the District Court
Clerk’s office. Electronic copies are available on the Court’s public website under Announcements at
www.oknd.uscourts.gov.
The Court invites written comments from any interested person. Send comments to the Court
Clerk, Attention: Local Rule Change, 333 W. 4th St., Room 411, Tulsa, OK 74103. Comments will be
accepted by the Court until July 12th, 2006.
Vol. 77 — No. 17 — 6/10/2006
1801
OBA SOLO and SMALL FIRM CONFERENCE & YLD MIDYEAR MEETING
JUNE 22-24, 2006
TANGLEWOOD RESORT • LAKE TEXOMA
8:25 a.m.
DAY 1 • Friday, June 23
Welcome
Stephen Beam
OBA President-Elect
8:30 a.m.
60 Tips in 60 Minutes
Ross Kodner, Tom Mighell
and Jim Calloway
9:20 a.m.
9:30 a.m.
Break
Beyond Google & Yahoo:
Advanced Searching
Tom Mighell
10:20 a.m.
10:30 a.m.
11:20 a.m.
11:30 a.m.
to noon
Adobe® Acrobat® 7:
What Can It Do For Your
Office
Avoiding Guardianship
Nightmares
Rick Borstein
Lesa Creveling, Judy Tuggle,
Judge Kyle Haskins
and Paul Blevins
E-discovery and Electronic
Evidence Management
Appellate Practice for the
Solo Practitioner
Social Security: It’s Short
& Long Term Disability
Ross Kodner
and Jim Calloway
Jody Nathan
James Grennan
Recent Developments in
Oklahoma Family Law
Web 2.0: The Next
Generation
Jon Ford and Phillip Tucker
Tom Mighell and Jim Calloway
Insurance and Car
Wrecks: Top 10 Things
Every Solo Should Know
Break
Break
Jody Nathan
Noon
LUNCH BUFFET
12:50 p.m. 2:00 p.m.
Getting Paid — James A. Slayton
Plenary Session
Rethinking Attorney Billing — Jim Calloway
Good Client Relations — Stephen Beam
Making Money From Technology — Ross Kodner
2:00-2:10 p.m.
2:10 p.m. 3:00 p.m.
Break
All You Ever Wanted to
Know About Division of
Marital Property
Tightwad’s Guide to
Lowering Your Overhead
Jim Calloway
Virginia Henson
1802
Recent Developments in
Estate Planning and
Probate Law
L. Michele Nelson
Vol. 77 — No. 17 — 6/10/2006
DAY 2 • Saturday, June 24
8:25 a.m.
Welcome
John Morris Williams
OBA Executive Director
8:30 a.m.
Ten Most Frequently
Asked Questions of the
Ethics Counsel
Gina L. Hendryx
9:20 a.m.
9:30 a.m.
10:20 a.m.
10:30 a.m.
11:30 a.m.
12:30 p.m. 1:20 p.m.
Break
Worst and Best Criminal
Trial Practices
Metadata and Other Tech
Disasters
Jerome A. Holmes
and Brian T. Hermanson
Ross Kodner
Donita Douglas
Break
Internet Research
That Finds You
Special Procedures
in Probate
Tom Mighell
Robert S. Farris
Work-life Balance
Cathy Christensen
LUNCH BREAK — No Speaker — Hotel Check Out
“The Sweet Spots”
Buying Law
Office Hardware
Ross Kodner
1:30 p.m. 3:00 p.m.
50 “Sics” in
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From Writing Wrongs
What’s Hot and What’s
Not in Running Your Law
Practice
“Things I Wish I Had
Known”
Legislative Update
John Morris Williams
Panel: Jon Parsley,
Frank Holdsclaw and
Nathan Johnson
Keri Williams, Moderator
Fun For The Family At Tanglewood!
Ross Kodner, Jody Nathan
and Jim Calloway
Vol. 77 — No. 17 — 6/10/2006
1803
The OBA Summer
Get-A-Way
OBA Solo & Small Firm Conference and YLD Midyear Meeting
June 22-24, 2006 • Tanglewood Resort — Lake Texoma
REGISTRATION FORM: THIS FORM SHOULD BE TYPEWRITTEN OR PRINTED “LEGIBLY”
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Registration Fees: Registration fee includes 12 hours CLE credit, including one hour ethics. All meals: Thursday evening
Poolside Buffet; Breakfast Buffet Friday & Saturday; Buffet lunch Friday & Saturday; Friday evening Ballroom Buffet.
Circle One
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$175
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1804
Vol. 77 — No. 17 — 6/10/2006
GRANT APPLICATIONS AVAILABLE
OKLAHOMA INTEREST ON LAWYERS' TRUST ACCOUNTS (IOLTA) PROGRAM
2006 GRANT APPLICATIONS NOW AVAILABLE
The Oklahoma Bar Foundation (OBF) Grants and Awards Committee is now accepting
applications for 2006 grants to be awarded through the Oklahoma IOLTA Program. The
deadline for Application submission is Tuesday, July 18, 2006. Applications are accepted for
programs and projects that:
•
provide delivery of legal services to the poor;
•
promote quality legal education;
•
improve the administration of justice and promote such other programs for the
benefit of the public as are specifically approved by the Oklahoma Bar Foundation for
exclusively public purposes.
The 2005 IOLTA grants totaling $354,500 were approved by the Oklahoma Bar Foundation
Board of Trustees to:
■
■
■
Provide delivery of civil legal aid services to the poor and elderly throughout
Oklahoma. Grants totaling $200,000 were awarded to the consolidated statewide
organization, Legal Aid Services of Oklahoma, Inc. and $45,000 was awarded for
legal aid services for children and other victims of domestic abuse to Oklahoma
Lawyers For Children, Inc., Tulsa Lawyers For Children, Inc. and the Oklahoma
Indian Legal Services, Inc. Domestic Violence Prevention Program.
Fund education programs in the total amount of $59,500. Awards were made to the
Oklahoma Bar Association Law-Related Education Teacher’s Workshop Program,
grades K through 12; the Oklahoma High School Mock Trial Program sponsored by
the Oklahoma Bar Association Young Lawyers Division; the statewide YMCA
Oklahoma Youth & Government Program; and $7,500 was reserved for the 2006
National High School Mock Trial Competition to be held in Oklahoma.
Improve the administration of justice through $50,000 in grants awarded to the
statewide Oklahoma Access To Justice Commission.
IOLTA grant applications must be postmarked or delivered no later than Tuesday, July 18,
2006 to be considered. Packets may be downloaded from the Web Page at
www.okbar.org/obf or application packets may be requested by writing or calling:
OKLAHOMA BAR FOUNDATION
IOLTA PROGRAM
P O Box 53036
Oklahoma City OK 73152-3036
(405) 416-7070 or (800) 522-8065
E-mail: foundation@okbar.org
Vol. 77 — No. 17 — 6/10/2006
1805
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
SUMMARY OPINIONS
Wednesday, May 3, 2006
F-2004-108 — Robert A. Tallbear, III, Appellant,
was tried by jury for the crime of First Degree
Manslaughter, after two or more felony convictions, in Case No. CF-1999-6681 in the District
Court of Oklahoma County. The jury returned a
verdict of guilty and recommended as punishment 500 years imprisonment. The trial court
sentenced accordingly. From this judgment and
sentence Robert A. Tallbear, III, has perfected his
appeal. The Judgment and Sentence of the trial
court is AFFIRMED. Opinion by A. Johnson, J.;
Chapel, P.J., concurs in part/dissents in part;
Lumpkin, V.P.J., concurs in results; C. Johnson, J.,
concurs; Lewis, J., concurs in results.
F-2004-1131 — Judson Crow, Appellant, was
tried by jury for the crimes of burglary in the first
degree and assault and battery with a dangerous
weapon, both after three previous felony convictions; damaging a vehicle; and malicious injury
to property in Case No. CF-2003-60 in the District
Court of Blaine County. The jury returned a verdict of guilty and recommended as punishment
fifty years on the burglary count, sixty years on
the assault and battery count, six months on each
vehicle count, and one year on the malicious
injury to property count. The trial court sentenced accordingly ordering that the fifty and
sixty year sentences run consecutively. From this
judgment and sentence Judson Crow has perfected his appeal. The Judgment and Sentence of the
trial court is AFFIRMED. Opinion by A. Johnson,
J.; Chapel, P.J., concurs in part/dissents in part;
Lumpkin, V.P.J., concurs in results; C. Johnson, J.,
concurs; Lewis, J., concurs.
F-2005-262 — Jose Mendoza Yanez, Appellant,
was tried by jury for the crimes of Counts 1 and
3: Trafficking in Cocaine; Counts 2 and 4: Conspiracy to Traffic in Cocaine, After Conviction of
Two or More Felonies in Case No. CF-2004-229 in
the District Court of Texas County. The jury
returned a verdict of guilty and recommended as
punishment life imprisonment and $100,000 fines
on Counts, 1, 3 and 4, and 50 years imprisonment
and a $100,000 fine on Count 2. The trial court
1806
sentenced accordingly ordering Counts 1 and 2 to
be served concurrently and Counts 3 and 4 to be
served concurrently, but each pair of counts to be
served consecutively to each other. From this
judgment and sentence Jose Mendoza Yanez has
perfected his appeal. AFFIRMED. Opinion by C.
Johnson, J.; Chapel, P.J., concur; Lumpkin, V.P.J.,
concur; A. Johnson, J., concur; Lewis, J., concur.
Tuesday, May 9, 2006
C-2005-211 — Chad Justin Berntson, Petitioner,
entered pleas of guilty to one count of Possession
of Child Pornography and one count of Producing Child Pornography in Case No. CF-2004-367
in the District Court of Pottawatomie County.
District Judge, Douglas L. Combs, sentenced Petitioner ten (10) years imprisonment and a $1,000
fine on each count and ordered the sentences to
be served concurrently. Petitioner filed a motion
to withdraw plea which was denied. Thereafter,
Petitioner filed a Petition for Writ of Certiorari.
The Petition for Writ of Certiorari is DENIED. As
to Count 1, the Judgment is AFFIRMED and the
Sentence is MODIFIED to five years imprisonment. As to Count 2, the Judgment is MODIFIED
to reflect a conviction under 21 O.S.2001, §1024.2,
and the Sentence is MODIFIED to five years
imprisonment. Consistent with the district
court’s original determination, the sentences
shall be served concurrently. Opinion by C. Johnson, J.; Chapel, P.J., Concurs; Lumpkin, V.P.J., concurs in part/dissents in part; A. Johnson, J., concurs; Lewis, J., concurs.
F-2005-326 — Joshua Keith Graham, Appellant,
appealed to this Court from the acceleration of
his deferred judgment and sentencing, entered
by the Honorable Douglas L. Combs, District
Judge, in Case No. CF-2004-149 in the District
Court of Pottawatomie County. AFFIRMED.
Chapel, P.J., concurs; Lumpkin, V. P.J., concurs; C.
Johnson, J., concurs; A. Johnson, J., concurs; and
Lewis, J., concurs.
F-2004-1261 — Jonathan Dwight Harjo, Appellant, was tried by jury in Case No. CF-2004-1314
in the District Court of Tulsa County for the crime
of Rape in the first degree. The jury returned a
verdict of guilty and recommended as punish-
Vol. 77 — No. 17 — 6/10/2006
ment fifteen (15) years imprisonment. The trial
court sentenced accordingly. From this judgment
and sentence Jonathan Dwight Harjo has perfected his appeal. The judgment of the District Court
of Tulsa County is AFFIRMED. The Sentence is
MODIFIED to ten (10) years imprisonment.
Opinion by Lewis, J.; Chapel, P.J., Concur; Lumpkin, V.P.J., Concur in part/dissent in part; C. Johnson, J., concur; A. Johnson, J., concur.
F-2005-223 — Anthonio Lancaster, Appellant,
was tried by jury in Case No. CF-2004-711 in the
District Court of Oklahoma County for the crime
of Concealing Stolen Property (count 2); Falsely
Impersonating Another (count 3); and Robbery
with a Firearm (count 4). The jury returned a verdict of guilty and recommended as punishment
three (3) years imprisonment for concealing
stolen property (count 2); eight (8) years imprisonment for falsely impersonating another (count
3), and twenty (20) years for robbery with a
firearm (count 4). The trial court sentenced
accordingly. From this judgment and sentence
Anthonio Lancaster has perfected his appeal. The
judgments and sentences of the District Court
shall be AFFIRMED. Opinion by Lewis, J.;
Chapel, P.J., concurs in part/dissents in part;
Lumpkin, V.P.J., concurs; C. Johnson, J., concurs;
A. Johnson, J., concurs.
RE 2005-0315 — The acceleration of Kevin Paul
Matthews, Appellant, deferred sentence and the
imposition of a four year sentence in Pottawatomie District Court Case No. CF-2003-14 is
AFFIRMED; the two year sentence imposed in
the revocation of Appellant’s suspended sentence
in Pottawatomie District Court Case No. CF1999-365, which was ordered to run consecutively to CF-2003-14, is VACATED; the termination
from Drug Court in Pottawatomie District Court
Case No. DC-2003-6 is AFFIRMED; and, the matter is REMANDED to the District Court of Pottawatomie County for further proceedings consistent with the Order issued. Chapel, P.J., concurs; Lumpkin, V.P.J., concurs in results; C. Johnson, J., concurs; A. Johnson, J., concurs; Lewis, J.,
concurs.
F-2005-419 — Jason Joshua Jensen, Appellant,
was tried by jury for the crimes of Count I —
Assault with a Dangerous Weapon, Count II —
Possession of Firearms after Conviction or During Probation, Count III — Unauthorized Use of
a Vehicle, each After Former Conviction of Two
or More Felonies in Case No. CF-2004-563 in the
District Court of Comanche County. The jury
Vol. 77 — No. 17 — 6/10/2006
punishment life imprisonment on Count I, 70
years imprisonment on Count II, and 35 years
imprisonment on Count III. The trial court sentenced accordingly. From this judgment and sentence Jason Joshua Jensen has perfected his
appeal. The Judgment and Sentence of the trial
court is AFFIRMED. Opinion by A. Johnson, J.;
Chapel, P.J., concur in part/dissent in part;
Lumpkin, V.P.J., concur; C. Johnson, J., concur;
Lewis, J., concur.
F-2004-916 — Billy Dewayne Davis, Appellant,
was tried by jury for the crime of Possession of a
Controlled Substance After Former Conviction of
Two or More Felonies in Case No. CF-2004-80 in
the District Court of Stephens County. The jury
punishment 30 years imprisonment and a fine of
$5,000.00. The trial court sentenced accordingly.
From this judgment and sentence Billy Dewayne
Davis has perfected his appeal. The Judgment
and Sentence of the trial court is AFFIRMED.
Opinion by A. Johnson, J.; Chapel, P.J., concur in
part, dissent in part; Lumpkin, V.P.J., concur in
results; C. Johnson, J., concur; Lewis, J.,
concur in results.
RE 2005-0706 — The revocation of Norman
Christopher Nunn, Appellant’s, suspended sentence in the District Court of Pittsburg County,
District Court Case No. CF-2003-76, is
AFFIRMED. Chapel, P.J., concurs Lumpkin, V.P.J.,
concurs; C. Johnson, J., concurs; A. Johnson, J.,
F-2004-1305 — Anthony Joseph Frost, Appellant, was tried by jury in Case No. CF-2004-214 in
the District Court of Oklahoma County for the
crimes of count 2, After former conviction of two
felony convictions, and count 3, Possession of
Drug Paraphernalia. The jury returned a verdict
of guilty and recommended as punishment forty
(40) years imprisonment for aggravated attempting to elude and one (1) year imprisonment and a
$1,000 fine on the drug paraphernalia count. The
trial court sentenced accordingly. From this judgment and sentence Anthony Joseph Frost has perfected his appeal. The Judgment of the District
Court and the Sentence for count three shall be
AFFIRMED; however, the Sentence imposed for
count two shall be MODIFIED to a term of twenty-five (25) years imprisonment. Opinion by
Lewis, J.; Chapel, P.J., concurs; Lumpkin, V.P.J.,
concurs in part/dissents in part; C. Johnson, J.,
concurs; A. Johnson, J., concurs.
F-2004-1182 — Bryan Matthew Carroll, Appellant, was tried by jury in Case No. CF-2004-119 in
1807
the District Court of Creek County for the crimes
of count one, Assault and/or Battery with a Dangerous Weapon; count three, Attempting to Elude
a Police Officer, count four, Unlawful Possession
of Drug Paraphernalia; count five, Driving while
License is Cancelled/Suspended/Revoked;
count six, Speeding; and count seven, Failure to
Stop at a Stop Sign. The jury returned a verdict of
guilty and recommended as punishment count
one, one (1) year imprisonment and a $1,500 fine,
count three, one year in jail and a $2,000 fine,
count four, $200 fine, count five, nine (9) months
in jail and a $500 fine, count six, thirty (30) days
in jail and a $500 fine, and count seven, ten (10)
days in jail and a $500 fine. The trial court sentenced accordingly. From this judgment and sentence Bryan Matthew Carroll has perfected his
appeal. The Judgments and Sentences in counts
one, four and seven shall be REVERSED AND
REMANDED with instructions to DISMISS. The
Sentence for count six shall be MODIFIED to a
Sentence of ten (10) days (with credit for time
already served) and a $200 fine. The Judgments
and Sentence in the remaining counts shall be
AFFIRMED. The Opinion by Lewis, J.; Chapel,
P.J., Concurs; Lumpkin, V.P.J., Concurs in
Part/Dissents in Part; C. Johnson, J., Concurs; A.
Johnson, J., Concurs.
Friday, May 19, 2006
C-2005-1128 — Guillermo Perez Correa, Appellant, was charged with Sexual Battery in Case No.
CF-2005-1330, in the District Court of Tulsa
County, after former conviction of a felony. On
July 25, 2005, Correa entered a plea of nolo contendere pursuant to a plea agreement with the
State, before Honorable P. Thomas Thornbrugh.
On September 12, 2005, the district court sentenced Correa to eight (8) years imprisonment.
Correa filed a timely application to withdraw his
guilty plea. The district court denied the motion.
From this judgment and sentence Guillermo
Perez Correa has perfected his appeal. The petition for a Writ of Certiorari is DENIED, and the
decision of the trial court denying Petitioner’s
application to withdraw his guilty plea is
AFFIRMED. Opinion by Chapel, P.J.; Lumpkin,
V.P.J., concur; C. Johnson, J., concur; A. Johnson,
J., concur; Lewis, J., concur.
F-2004-1150 — Lawrence Tyrone Watts, Appellant, was tried by bench trial and convicted of
First Degree Manslaughter in the Heat of Passion
in Case No. CF-2003-122, in the District Court of
McIntosh County. The Honorable Steven W. Taylor sentenced Watts to twenty-five (25) years
imprisonment. From this judgment and sentence
Lawrence Tyrone Watts has perfected his appeal.
1808
AFFIRMED Opinion by Chapel, P.J.; Lumpkin,
V.P.J., concur In part/dissent in part; C. Johnson,
J., concur; A. Johnson, J., concur; Lewis, J., concur.
Monday, May 22, 2006
F-2005-41 —James Newton Nye, Appellant,
was tried by jury for the crime of Manufacture or
Attempted Manufacture of a Controlled Dangerous Substance (Methamphetamine), after a former conviction of two felonies in Case No. CF2004-167 in the District Court of Grady County.
The jury returned a verdict of guilty and recommended as punishment sixty (60) years imprisonment. The trial court sentenced accordingly.
From this judgment and sentence James Newton
Nye has perfected his appeal. AFFIRMED, but
the sentence is MODIFIED to twenty (20) years
imprisonment Opinion by C. Johnson, J.; Chapel,
P.J., Concur; Lumpkin, V.P.J., concurs in part/
dissents in Part; A. Johnson, J., concur; Lewis, J.,
concurs.
C-2005-876 — Ricky Ray Malone, Appellant,
entered a blind plea of guilty, in the District Court
of Stephens County to the crimes of Possession of
a Controlled Dangerous Substance in Case No.
CF-03-313; Attempted Manufacture of Controlled
Dangerous Substance (Count I), Possession of
Controlled Dangerous Substance (Count II), Possession of a Firearm While Committing a Felony
(Count III) in Case No. CF-03-371; Possession of
More than 24 Grams of a Product Containing
Pseudoephedrine/Ephedrine in Case No. CF2003-377; Possession of a Controlled Dangerous
Substance in Case No. CF-2003-378. After a sentencing hearing on July 20, 2005, Malone was sentenced to seven (7) years imprisonment and a
$2,500 fine in Case No. CF-2003-313; to twenty
(20) years imprisonment and $50,000 fine (Count
I), and seven (7) years imprisonment and a $2,500
fine on each of Counts II and III in Case No. CF2003-371; to two (2) years imprisonment and a
$2,500 fine in Case No. CF-2003-377; and to seven
(7) years imprisonment and a $2,500 fine in Case
No. CF-2003-378. All sentences are to run consecutively. Malone’s Motion to Withdraw Pleas and
Motion for Determination of Competency were
denied. From this judgment and sentence Ricky
Ray Malone has perfected his appeal. The Petition for Writ of Certiorari is Denied. Opinion by
Chapel, P.J.; Lumpkin, V.P.J., concur; C. Johnson,
J., concur; A. Johnson, J., concur; Lewis, J., concur.
F-2005-648 — Larry Gene Smith, Appellant,
was tried in a non-jury trial for the crimes of
Unlawful Possession of a Controlled Dangerous
Substance with Intent to Distribute (Count I),
Vol. 77 — No. 17 — 6/10/2006
Unlawful Possession of Paraphernalia (Count II),
and Failure to Signal Turn (Count III) in Case No.
CF-2004-30, in the District Court of Pushmataha
County. Smith was convicted on Count I, for the
lesser included charge of Unlawful Possession of
a Controlled Dangerous Substance and sentenced
to ten (10) years, and Counts II and III were dismissed. From this judgment and sentence Larry
Gene Smith has perfected his appeal.
AFFIRMED Opinion by Chapel, P.J.; Lumpkin,
V.P.J., concur; C. Johnson, J., concur; A. Johnson,
J., concur; Lewis, J., concur.
C-2005-458 — Woodroe Wilson, Petitioner, pled
guilty to the crime of First Degree Rape by Force
of Fear in Case No. CF-2002-613 in the District
Court of Muskogee County. The Honorable
Robin Adair accepted the guilty plea and sentenced him to 60 years imprisonment. Wilson
filed a motion to withdraw guilty plea which was
denied. From this judgment and sentence Wilson
has perfected his Petition for Writ of Certiorari.
The Petition for Writ of Certiorari is DENIED.
Petitioner’s conviction for First Degree Rape by
Force or Fear is AFFIRMED. Opinion by A. Johnson, J.; Chapel, P.J., concurs; Lumpkin, V.P.J., concurs in results; C. Johnson, J., concurs; Lewis, J.,
concurs.
RE 2005-0546 — The revocation of Rabson
Robert, Appellant’s, suspended sentence in the
District Court of Ottawa County, Case No.
CF-2004-0187, is AFFIRMED. Chapel, P.J.,
concurs; Lumpkin, V.P.J., concurs; C. Johnson, J.,
concurs; A. Johnson, J., concurs; Lewis,
J., concurs.
RE 2005-0765 — The revocation of Tremaine D.
Williams, Appellant’s, suspended sentence in the
District Court of Oklahoma County, Case No. CF2001-5984, is AFFIRMED. Chapel, P.J., concurs;
A. Johnson, J., concurs; Lewis, J., concurs.
F-2004-1208 — Steven Orlando Titsworth,
Appellant, was tried by jury in in the District
Court of Muskogee County, Case No. CF-2004157, for the crime of Possession of a Controlled
Substance (Cocaine) after former conviction of
two or more felonies and Petit Larceny after a former conviction of Petit Larceny. The jury
punishment seventeen (17) years imprisonment
and five (5) years imprisonment. The trial court
sentence Steven Orlando Titsworth has perfected
his appeal. The judgment and sentence of the trial
court is AFFIRMED. Opinion by Lewis, J.;
Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; C.
Vol. 77 — No. 17 — 6/10/2006
Johnson, J., concurs in part/dissents in part; A.
Johnson, J., concurs.
F-2004-767 — Appellant, Reginald Lamond
Brazell, was tried by jury in the District Court of
Oklahoma County, Case Number CF-2003-1408,
and convicted of Robbery in the First Degree,
After Former Conviction of Two or More
Felonies. The jury set punishment at forty (40)
years imprisonment, and the trial judge sentenced Appellant in accordance with the jury’s
determination. Appellant now appeals his conviction and sentence. The judgment is hereby
AFFIRMED, but the sentence is hereby MODIFIED to thirty (30) years. Opinion by Lumpkin,
V.P.J.; Chapel, P.J., concur; C. Johnson, J., concur;
A. Johnson, J., concur; Lewis, J., concur.
F-2005-814 — Appellant James Joseph Wymer
was tried by jury and convicted of First Degree
Burglary, After Former Conviction of Two or
More Felonies, Case No. CF-2004-1931 in the District Court of Oklahoma County. The jury recommended as punishment forty-five (45) years in
prison, and the trial court sentenced accordingly.
It is from this judgment and sentence that Appellant appeals. The Judgment is AFFIRMED. The
Sentence is MODIFIED to thirty-five (35) years.
Opinion by Lumpkin, V.P.J.; Chapel, P.J., concur;
C. Johnson, J., concur; A. Johnson, J., concur;
Lewis, J., concur.
C-2005-647 — Peter Glen Williams, Petitioner,
pled guilty to Unlawful Delivery of Cocaine in
Case No. CF-2004-1439 in the District Court of
Tulsa County. Petitioner entered the plea with the
understanding that he would not receive more
than five years imprisonment. The Honorable
Gordon D. McAllister, District Judge sentenced
Petitioner to five years imprisonment. Petitioner
timely filed a motion to withdraw plea, which
was denied. Thereafter, Petitioner filed Petition
for Writ of Certiorari. The Petition for Writ of Certiorari is DENIED and the Judgment and Sentence of the district court is hereby AFFIRMED.
Opinion by C. Johnson, J.; Chapel, P.J., concurs;
Lumpkin, V.P.J., concurs; A. Johnson, J.,
S-2005-866 — Appellee, Matthew Ryan Wells,
was bound over for trial on the following charges
in Tulsa County District Court, Case No. CF2005-1913: Trafficking in Illegal Drugs; Use of a
Weapon in Commission of a Crime; Failure to
Obtain a Drug Stamp; Unlawful Possession of
1809
Paraphernalia; and Taxes Due State. Appellee
filed a motion to quash the information and suppress the bind-over, which was sustained by the
District Court Judge following a hearing. The
State then filed this appeal. The District Court’s
ruling sustaining Appellee’s motion to quash is
hereby AFFIRMED, and the relief requested by
the State is DENIED. Opinion by Lumpkin, V.P.J.;
Chapel, P.J. concur; C. Johnson, J., concur; A.
Johnson, J., concur; Lewis, J., concur.
F-2005-744 — Christopher Allen Black, Appellant, was tried by jury for the crime of Possession
of a Controlled Drug after former conviction of a
felony in Case No. CF-2005-21, in the District
Court of Pushmataha County. The jury returned
a verdict of guilty and recommended as punishment four (4) years imprisonment. The trial court
sentence Christopher Allen Black has perfected
his appeal. AFFIRMED. Opinion by Chapel, P.J.;
Lumpkin, V.P.J., concur; C. Johnson, J., concur; A.
Johnson, J., concur; Lewis, J., concur.
RE 2005-0681— The revocation of Appellant,
Gerry William Kerr’s, suspended sentence in the
District Court of Tulsa County, Case No. CF-20040364, is AFFIRMED. Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; C. Johnson, J., concurs; A.
Johnson, J., concurs; Lewis, J., concurs.
RE 2005-0361 — The revocation of Appellant,
Justin Marcus Bizzell’s, suspended sentence in
the District Court of Pottawatomie County, District Court Case No. CF-2004-233, is AFFIRMED.
Chapel, P.J., concurs Lumpkin, V.P.J., concurs; C.
Johnson, J., concurs; A. Johnson, J., concurs;
Lewis, J., concurs.
concurs; Lumpkin, V.P.J., dissents; C. Johnson, J.,
concurs; A. Johnson, J., concurs; and Lewis, J.,
concurs.
J 2006-0056 — The order of the District Court of
Cherokee County, District Court Case No. CF2005-252, granting the State’s motion to sentence
C. P. H., Appellant, a Youthful Offender, as an
adult, is AFFIRMED. Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; C. Johnson, J., concurs; A.
Johnson, J., concurs; Lewis, J., concurs.
RE-2005-364 — Shane Lee Hulstine, Appellant,
entered a plea of nolo contendere to a charge of Driving Under the Influence of Alcohol in Case No.
CF-2002-137 in the District Court of Pottawatomie County. He was sentenced to three (3)
years, all but ten (10) days suspended, and given
credit for time served. On April 6, 2005, Appellant’s suspended sentence was revoked in full.
From this judgment and sentence, Appellant
appeals. Appellant’s judgment and sentence is
AFFIRMED, and the District Court is directed to
issue an order nunc pro tunc reflecting the correct
amount of time remaining on Appellant’s sentence. Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; C. Johnson, J., concurs; A. Johnson, J., concurs; Lewis, J., concurs.
J-2006-0198 — The State’s appeal pursuant to
Section 7306-2.5(E) of Title 10 of the District
Court’s order in Oklahoma County District Court
Case No. CF-2005-966 sustaining J.D.M.’s motion
for certification as a Youthful Offender is
DENIED. Chapel, P.J., concurs; Lumpkin, V.P.J.,
concurs, C. Johnson, J., concurs; A. Johnson, J.,
Friday, June 2, 2006
RE 2005-0721 — The revocation of Appellant,
Manual Ray Simes’, suspended sentence in the
District Court of Choctaw County, District Court
Case No. CF-2000-211, is AFFIRMED. Chapel,
P.J., concurs Lumpkin, V.P.J., concurs; C. Johnson,
J., concurs; A. Johnson, J., concurs; Lewis, J.,
concurs.
THE ACCELERATED DOCKET
J-2006-54— The Appellant, M. C. A., appealed
to this Court from an order entered by the Honorable C. William Stratton, Associate District
Jude, granting the State’s motion to sentence
Appellant as an adult in Case No. CF-2005-156 in
the District Court of Comanche County.
REVERSED and REMANDED. Chapel, P.J.,
1810
J-2006-146 — The Appellant, B.L.C., appealed
to this Court from an order entered by the Honorable Clancy Smith, Special Judge, granting the
State’s motion to sentence Appellant as an adult
in Case No. CF-2005-2353 in the District Court of
Tulsa County. AFFIRM. Chapel, P.J., concurs;
A. Johnson, J., concurs; and Lewis,J., concurs.
RE-2005-508 — Donald Ray Whitworth, Appellant, entered a guilty plea to a charge of Conspiracy to Manufacture a Controlled Dangerous Substance (Methamphetamine) in Case No. CF-2002186 in the District Court of Lincoln County.
Appellant was given a seven (7) year suspended
sentence. On May 13, 2005, Appellant’s suspend-
Vol. 77 — No. 17 — 6/10/2006
ed sentence was revoked in full. From this judgment and sentence, Appellant appeals. Appellant’s judgment and sentence is AFFIRMED.
Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; C.
Johnson, J., concurs; A. Johnson, J., concurs;
Lewis, J., concurs.
RE-2005-236 — Michael Landon Stewart,
Appellant entered a plea of guilty in Johnston
County District Court, Case No. CF-2002-61, with
two counts of Lewd Molestation. Pursuant to a
plea agreement, Appellant was sentenced to five
(5) years incarceration with all but the first one
hundred eighty (180) days suspended, in both
counts and both counts were ordered to run concurrently. Subsequently, Appellant’s suspended
sentences were revoked in full. Appellant appeals
the order of the Honorable John H. Scaggs, District Judge, Johnston County District Court. The
order of revocation is AFFIRMED. Chapel, P.J.,
concurs; Lumpkin, V.P.J., concurs; C. Johnson,
J., concurs; A. Johnson, J., concurs; Lewis, J.,
concurs.
J-2006-179 — D.B., Appellant, was charged as
an adult with First Degree Murder and Attempted Robbery with a Dangerous Weapon in Case
No. CF-2004-46 in the District Court of Tulsa
County. Appellant filed a Motion to Be Certified
as a Juvenile or Youthful Offender, which was
denied by the District Court on March 31, 2004.
From this ruling, Appellant appeals. The District
Court’s ruling is AFFIRMED. Chapel, P.J., concurs; Lumpkin, V.P.J., concurs; C. Johnson, J., dissents; A. Johnson, J., concurs; Lewis, J., concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
Friday, April 28, 2006
102,891 — Stacy Price and Chad James, Individually and as Parents and Next Friends for the
Minor Child, K.J., Plaintiffs/Appellants, vs. Dale
E. Wolford, D.O.; Kenneth Irvis, M.D.; Xavier
Gonzalez, M.D.; Defendants/Appellees, and
Grady Memorial Hospital Authority d/b/a
Grady Memorial Hospital; Five Oaks Medical
Group; Robert Royse, M.D.; J. Williams, R.N.; D.
Pritchett, R.N.; Richard D. Warden (circulating
nurse); V. Pierce (scrub nurse); C. Renito, C.R.N.;
and C. Rodgers, R.N., Defendants. Appeal from
the District Court of Grady County, Oklahoma.
Honorable Richard Van Dyck, Trial Judge. Plaintiffs/Appellants are parents of the minor child
K.J. They filed an action against Grady Memorial
Hospital Authority d/b/a Grady Memorial Hospital (Hospital), and certain doctors and nurses,
alleging negligence in the delivery of the child.
Vol. 77 — No. 17 — 6/10/2006
The trial court granted Hospital’s motion to dismiss without prejudice pursuant to 63 O.S. 2001
§1-1708.1E(A)(2). The court also granted Defendants/Appellees motion to dismiss finding
Appellees were employees of Hospital and fall
under the Governmental Tort Claims Act (Act).
Appellants appeal. Hospital is an Oklahoma public trust organized under the provisions of 60 O.S.
2001 §176 et seq, having Grady County as its beneficiary, and, as such, is a political subdivision
under the Act. Appellees are employees of Hospital. However, hospital is not an agency designated to act on behalf of the state or a political
subdivision. To be protected by the Act,
Appellees must be employees of an agency of the
state. They are not. Appellees are subject to liability for medical malpractice and are not protected
by the Act from tort liability. The trial court erred
in granting Appellees’ motion to dismiss.
REVERSED AND REMANDED WITH DIRECTIONS. Opinion by Hansen, J.; Bell, P.J., and
Joplin, J., concur.
102,986 — Phillip Martin, Plaintiff/Appellant,
vs. Cornell Companies Inc., et al.; David Cornell,
Owner and Pres. Of CCI; Sam Calbone, Liaison of
CCI; Richard Barger, Agent/Servant of CCI;
Steve DeVaughn, Major of CCI; Dwayne Branan,
SIS LT. Of CCI; L. Garrison, Capt. Of CCI
Agents/Servants of CCI, Defendants/Appellees.
Appeal from the District Court of Oklahoma
County, Oklahoma. Honorable Daniel L. Owens,
Trial Judge. Appellant (Inmate) seeks review of
the trial court’s order granting summary judgment in favor of Appellees (Prison), on Inmate’s
claims for violation of constitutional rights,
replevin, and medical malpractice. We affirm
summary judgment as to the replevin and medical malpractice claims because Inmate failed to
exhaust his administrative remedies. However,
we note his time to file a grievance for return of
his property or reimbursement of its value has
not expired because Prison never responded to
his request to staff for return of the property. We
affirm as to the violation of constitutional rights
claim because Inmate won expungement of his
misconduct charges and suffered no discipline
affecting the duration of his sentence. The trial
court did not err in granting summary judgment
to Prison on Inmate’s claim for violation of his
constitutional rights. AFFIRMED. Opinion by
Hansen, J.; Bell, P.J., and Joplin, J., concur.
Friday, May 5, 2006
101,507 — TAP/The Architectural Partnership,
P.C., Plaintiff/Appellee, vs. State of Oklahoma, ex
rel., Department of Central Services, Defendant/Appellant. Appeal from the District Court
1811
of Oklahoma County, Oklahoma. Honorable
Noma D. Gurich, Judge. In 1997, Appellant (DCS)
invited letters of interest from consultants to perform potential services to beautify and develop
land along Lincoln Boulevard which became
known as the Lincoln Renaissance Project (Project). Appellee (TAP) submitted a letter of interest
and on December 9, 1997, the parties signed a
Consultant Services Agreement (the 1997 Contract). TAP produced and delivered to DCS a document entitled a “Preliminary Cost Summary/
Schedule and Fee Proposal” (Proposal). This Proposal estimated the costs for land acquisition,
beautification of the Project and construction of
an office building. It also contained the proposed
consulting fees for TAP’s future services. In 1999,
the parties entered into a separate contract for
actual land acquisition and beautification of the
Project. TAP was paid in full under both the 1997
and the 1999 contracts. In 2002, DCS solicited
bids from architectural firms to provide professional services for a new Commissioners of the
Land Office Building. TAP claimed the project
had already been awarded to them by virtue of
the Proposal which fully merged into the 1997
Contract. In 2003, the State of Oklahoma suffered
a budget crisis. Funds for the Commissioners of
the Land Office Building became unavailable and
the plans for the construction of the new building
were abandoned. TAP filed the instant lawsuit
alleging DCS breached its contract when it solicited other professionals to perform consulting
services for the Land Office Building. DCS contends there was no contract between DCS and
TAP that would entitle TAP, in perpetuity, to be a
party to all consultant services contracts related
to the Project. We find the language of Article 1 of
the 1997 Contract, when read in conjunction with
the entire agreement, was not susceptible to more
than one interpretation. The terms and provisions
of the 1997 Contract and Exhibit “A” fully spelled
out the obligations of the parties, the date by
which such obligations were to be performed,
and the amount to be paid for the performance of
these obligations. We conclude the trial court
erred when it determined the 1997 Contract was
ambiguous. There appeared no intent to merge or
incorporate the Proposal into the 1997 Contract.
The Contract did not obligate DCS to use TAP’s
architectural services for the Commissioners of
the Land Office building. Instead, it described
TAP’s obligations to prepare a feasibility study
and a master plan and to perform the other services specifically delineated in the contract and in
Exhibit
“A”
thereto.
The
order of the trial court is REVERSED AND
REMANDED FOR JUDGMENT FOR THE
1812
DEFENDANT/APPELLANT. Opinion by Bell,
P.J.; Hansen, J., and Joplin, J., concur.
102,421 — Vu Thanh Nguyen, Petitioner/
Appellee, vs. Kim Hue Thi Vo, Respondent/
Appellant. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable Donald Deason, Trial Judge. The trial court entered a
Decree of Divorce and Dissolution of Marriage in
April, 2005. In May, 2005, Wife filed a Motion to
Vacate arguing the decree purports to be a consent decree, yet there is no evidence of her consent. The trial court found the matter was properly presented for hearing by Husband in Wife’s
absence and denied Wife’s motion. Wife appeals.
The record shows that on the last page of the
decree, below the words, “Consented and Agreed
to Between the Parties”, Husband’s signature
appears above his name on the signature line, but
Wife’s signature does not appear above her name
on the signature line. Wife was not present in
open court, nor was she represented by counsel.
As a result, the trial court could not question her
regarding the “Agreement” of the parties. There
is no evidence of the Agreement in the record and
thus, no evidence Wife consented to the terms of
the purported consent decree. The decree is
VACATED and the cause is REMANDED for further proceedings. VACATED AND REMANDED
WITH DIRECTIONS. Opinion by Hansen, J.; Bell,
P.J., and Joplin, J., concur.
102,478 — David L. Moore, Petitioner, vs. Mustang Public Schools; CompSource Oklahoma and
The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation
Court. Claimant appeals the order finding he did
not have an injury arising out of and in the course
of his employment. Claimant contends he injured
his left shoulder while working as an electrician
for Employer. Employer argues Claimant had
multiple inconsistencies in his evidence to prove
the injury was work-related and asserts Claimant
did not meet his burden of proof. We agree. The
evidence shows Claimant began to have problems in March, 2003, with his left shoulder but
continued to work and waited for over a year to
seek medical treatment. The record contains competent evidence to support the finding that
Claimant did not have an injury arising out of
and in the course of his employment.
SUSTAINED. Opinion by Bell, P.J.; Hansen, J.,
concurs in result, and Joplin, J., concurs.
102,613 — In the Matter of the Protest to the
Denial of the Sales Tax Claims for Refund of
Hiland Dairy Foods Company, LLC., Appellant,
vs. Oklahoma Tax Commission, Appellee.
Vol. 77 — No. 17 — 6/10/2006
Appeal from the Oklahoma Tax Commission.
Appellant (Dairy) seeks review of an order of
Appellee (OTC) denying Dairy’s protest to the
denial of its sales tax refund claim. At issue is
whether the Oklahoma Sales Tax Code, 68 O.S.
2001 §1350 et seq., requires a manufacturer to
obtain from OTC a separate manufacturer
exemption permit (MEP) for each place of business in the State of Oklahoma. The language of
§1359.2 unambiguously places the duty to obtain
an MEP on each resident manufacturer, not on
each place of business of the manufacturer. That
a manufacturer may have multiple sales tax permits as a result of having multiple places of business does not of necessity lead to the conclusion
the manufacturer must have multiple MEPs. The
State of Oklahoma has a need for sales tax permits, under which the vendor collects sales tax
from consumers, to be separated by locality,
because the sales tax rate may differ depending
upon the place of delivery of property or services
subject to the tax. In contrast, there is no need for
MEPs to be separated by locality, because their
purpose is to notify the manufacturer’s suppliers
of its sales tax exempt status. OTC’s order is
reversed and this matter is remanded for determination of the amount of Dairy’s sales tax
refund. REVERSED AND REMANDED. Opinion
by Hansen, J.; Bell, P.J., and Joplin, J., concur.
103,126 — H & EN, Inc., Plaintiff/Appellant,
vs. Oklahoma Department of Labor, Defendant/Appellee. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable Daniel
L. Owens, Judge. Appellant (Employer) appeals
from the trial court’s order granting Appellee’s,
(Department) Motion to Dismiss for Lack of Subject Matter Jurisdiction. We hold the trial court
properly granted Department’s motion to dismiss because Employer failed to include its wage
claimant employee as a party to the action.
Employee was a party to the action before
Department’s Administrative Law Judge, with
valuable interests separate from those of Department, and was therefore a necessary party to
Employer’s Petition for Review in the trial court.
The trial court could not gain jurisdiction over
Employer’s Petition unless all necessary parties
were joined. The trial court correctly found it did
not have jurisdiction over Employer’s Petition in
the absence of Employee being named as a defendant and dismissed the Petition. Accordingly, the
trial court’s order dismissing Employer’s Petition
is AFFIRMED. Department’s motion to dismiss
Employer’s Petition in Error is DENIED.
AFFIRMED. Opinion by Hansen, J.; Bell, P.J., and
Joplin, J., concur.
Vol. 77 — No. 17 — 6/10/2006
99,966 — In the Matter of the Faye W. Hale 1993
Living Trust, Stuart A. Hale, Malerie C. Turner
Albertson, Elizabeth Hale Tank, David Hale and
Lydia F. Pearson, Plaintiffs/Appellees, vs. Wanda
F. Bounds, individually and as Trustee, Defendant/Appellant, Edwin Nall, Dorance W. Clifton
and Michael Larry Clifton, Beneficiaries and Necessary Parties, Defendants/Appellants, Ed Hale,
Defendant. Appeal from the District Court of
Canadian County, Oklahoma. Honorable Gary E.
Miller, Judge. Defendants seek review of the trial
court’s order holding them jointly liable for a
share of Trust estate taxes, and imposing a constructive trust. Absent a specific non-apportionment provision prohibiting the apportionment of
estate tax liability in either the 1993 Trust or the
1997 Will, we hold the trial court did not err as a
matter of fact or law in summarily adjudicating
the issue of estate tax apportionment and applying the doctrine of equitable apportionment to
require apportionment of the estate tax burden
among Decedent’s beneficiaries, both Plaintiffs
and Defendants. Further, and considering the
evidence of the distributions of Trust assets to
Beneficiaries without apportionment of the
accompanying estate tax burden, it cannot be disputed that the evidence clearly, unequivocally
and decisively demonstrates Beneficiaries hold
funds, unburdened by the attendant estate tax,
which they ought not, in equity and good conscience, hold and enjoy. Although Plaintiffs did
not specifically assert a claim against Beneficiaries for imposition of a constructive trust on the
distributions of Trust assets to them, once the trial
court’s equitable jurisdiction attached, the trial
court was clearly empowered to fashion such
relief as to enable the recovery from Beneficiaries
of that part of the Trust distributions equal to
their respective, pro rata estate tax liability. We
therefore conclude the trial court did not err in
granting to Plaintiffs an in rem judgment against
Beneficiaries’ Trust distributions for recovery of
their pro rata estate tax liability. AFFIRMED.
Opinion by Joplin, J.; Bell, P.J., and Mitchell, J.,
(sitting by designation), concur.
100,045 — Richard Lynn Dopp, Plaintiff/
Appellant, v. State of Oklahoma, Defendant/
Appellee. Appeal from the District Court of
Ottawa County, Oklahoma. Honorable J.R. Pearman, Judge. Plaintiff/Appellant Richard Lynn
Dopp (Plaintiff) seeks review of the trial court
order dismissing his action for declaratory judgment, challenging the drug enforcement forfeiture statute, 63 O.S.2001 §2-506, as an unconstitutional infringement on his right to jury trial. After
1813
seizure of cash, illegal drugs and firearms from
Plaintiff, the State commenced forfeiture proceedings. Plaintiff filed a Motion Requesting Jury
Trial which was denied. While the forfeiture
action was still pending, Plaintiff filed a Petition
for Declaratory Judgment asserting the forfeiture
statute created an unconstitutional denial of his
right to jury trial. The State moved to dismiss and
the court granted the motion on the merits. A
court may refuse to make a determination of
rights if a declaratory determination would not
terminate the controversy, would create a new
controversy or where there already exists a proper procedure for challenging the statute. Associated Builders and Contractors of Oklahoma v. State ex
rel. Oklahoma Dept. of Labor, 1981 OK 50, ¶26, 628
P.2d 1156, 1161; Degarza v. Oklahoma City University, 2001 OK CIV APP 28, ¶4, 20 P.3d 152, 153; Easterwood v. Choctaw County Dist. Attorney, 2002 OK
CIV APP 41, ¶11, 45 P.3d 436, 439; 12 O.S. 2001
§1651. Further, no showing was made that remedies available through the forfeiture action were
inadequate. We conclude the declaratory judgment action was properly dismissed, not because
of a failure on the merits, but because there was
available, at the time the declaratory judgment
action was filed, a proceeding in which to challenge the constitutionality of the statute. The
order of the trial court is AFFIRMED. Opinion by
Joplin, J.; Bell, P.J. and Hansen, J., concur.
101,074 — In Re: The Marriage of Robert
George Ferguson, Petitioner/Appellee, vs. Karen
Lynn Ferguson, Respondent/Appellant. Appeal
from the District Court of Comanche County,
Oklahoma. Honorable Allen McCall, Judge. In
this marriage dissolution proceeding, the trial
court awarded sole custody of the parties’ three
minor children to Husband because of Wife’s
erratic behavior and because she intended to permanently relocate the children to Canada and
threatened to restrict Husband’s visitation. The
court denied Wife’s request for support alimony
and attorney fees. Wife appeals. Wife is a Canadian citizen. Husband is a career soldier in the United States Army. Wife contends (1) Husband failed
to prove she was unfit, (2) she was the primary
caretaker of the children; and (3) Husband was an
absentee father and thus, unfit to be the custodial
parent. Oklahoma case law does not mandate
that custody be awarded to the primary caretaker to the exclusion of the working parent. We cannot find that Wife sustained her burden of showing Husband’s unfitness to be the custodial parent. Instead, the weight of the evidence supported a finding that Husband was a good father who
was willing and able to meet his children’s needs.
Because of the complexity of this case and the
1814
abundant evidence supporting both party’s fitness, we decline to second guess the trial court’s
factual determinations absent clear evidence to
the contrary. The weight of the evidence supported a finding that placing custody with Husband
would provide continuity and a stable environment for the children and would facilitate both
parents’ involvement with the children. Wife’s
need for support alimony was undisputed. Wife
sufficiently established her need for support
alimony for nine months in order to secure
employment. In light of the fact that Husband
has custody of the three children and may require
an opportunity to show evidence of his disposable income and ability to pay, we remand this
matter to determine a reasonable amount of support alimony for Wife. We also find there are
compelling and overriding equitable considerations in favor of an award of attorney fees to Wife.
That portion of the court’s decree is reversed and
remanded for the trial court to determine and
award Wife a reasonable amount of attorney fees.
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED. Opinion by Bell, P.J.; Hansen, J.,
and Joplin, J., concur.
101,095 — Jane Ann Nichols, Plaintiff/
Appellee, vs. Hamerhead Marina, Defendant/
Craig County, Oklahoma. Honorable Erin L.
Oquin, Judge. Appellant (Marina) appeals from a
judgment entered in favor of Appellee (Nichols)
in Nichols’ small claims action for damage to two
personal water crafts (jet skis). Marina contends
Nichols failed to prove Marina was negligent or
that Marina’s acts caused damage to the jet skis.
Specifically, Marina asserts the only evidence
tending to prove causation or Defendant’s negligence should have been excluded as hearsay. We
agree. Nichols’ and a friend of Nichols attempted
to relay statements from an owner and employee
of another marine shop who examined the jet
skis. The information related to witnesses who
did not appear at trial and were not subject to
cross-examination. As such, the testimony was
hearsay and should have been excluded. The
judgment of the trial court is REVERSED. Opinion by Bell, P.J.; Hansen, J. and Joplin, J., concur.
102,293 — Waggoners Trucking and Waggoners Trucking (Own Risk #17530), Petitioner,
vs. Melvin L. Smith and The Workers’ Compensation Court, Respondents. Proceeding to Review
an Order of a Three-Judge Panel of The Workers’
Compensation Court. Employer (Waggoners
Trucking) seeks review of an order of the threejudge panel of the Workers’ Compensation Court
that modified a trial court order which refused to
Vol. 77 — No. 17 — 6/10/2006
award Claimant continuing temporary total disability (TTD). Claimant’s doctor opined Claimant
continued to suffer from postconcussion syndrome, closed head injury with hearing loss and
visual disturbance, traumatic injury to the cervical and lumbar spine with radiculopathy, and
traumatic injury to the left shoulder with rotator
cuff strain or tear. He concluded Claimant was
TTD from September 23, 2004, to the present and
would remain TTD for an undetermined amount
of time pending further medical evaluation and
treatment. The panel’s decision awarding
Claimant TTD from September 25, 2004 and continuing is supported by the above-cited testimony of Claimant and his doctor. SUSTAINED.
Opinion by Hansen, J.; Bell, P.J., and Joplin, J.,
concur.
102,555 — Geyer Brothers Equipment Co.,
Plaintiff/Appellant, vs. Standard Resources,
L.L.C., an Oklahoma Limited Liability Corporation, and Don W. Bullard, an individual, and
Arvest Bank, formerly known as Oklahoma
National Bank, a national Banking association,
Sohio Petroleum, L.L.C., and GBP, L.P., and
Richard Gouin, and Standard Energy, L.L.C., an
Oklahoma Limited Liability Company, and Verna
O. Smith, an individual, and Verna O. Smith,
L.L.C., an Oklahoma Limited Liability Company,
Defendants/Appellees. Appeal from the District
Court of Caddo County, Oklahoma. Honorable
Richard G. Van Dyck, Judge. Plaintiff/Appellant
appeals from the trial court’s grant of summary
judgment to Defendants/Appellees in Plaintiff’s
quiet title and accounting action regarding certain oil and gas interests. Plaintiff contends evidence showed the well was capable of producing
in paying quantities, and Defendants and third
parties interfered with Plaintiff’s right to produce
the well. Pack v. Santa Fe Minerals, 1994 OK 23, 869
P.2d 323 applies to the facts of this case. Under the
subject leases’ implied covenants to market oil
and gas, Defendants proved Plaintiff’s failure to
produce and market gas from the property was
unreasonably lengthy. We are mindful of Plaintiff’s “equitable considerations” arguments.
Plaintiff, however, did not file the instant action
until nearly five years after allegedly being
denied access to the leasehold. In addition, the
record indicates Plaintiff took no real steps to
resolve the conflicts between the various purported leaseholders or preserve its putative legal
rights. The trial court properly granted summary
judgment to Defendants. Plaintiff also contends
the court erred in granting Defendants’ motion
for attorney fees. The court made no finding that
Plaintiff’s action was oppressive, onerous or vexatious. On this basis, the award of attorney fees to
Vol. 77 — No. 17 — 6/10/2006
Defendants must be reversed. That portion of the
court’s judgment regarding costs is affirmed.
AFFIRMED IN PART, REVERSED IN PART.
Opinion by Bell, P.J.; Hansen, J., and Joplin, J.,
concur.
101,403 — Wanna Smith, Plaintiff/Appellant,
vs. Eric Schuler, Defendant/Appellee. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Patricia G. Parrish, Judge.
In this modification of custody proceeding,
Mother appeals the trial court’s judgment modifying custody and awarding sole custody of the
parties’ two minor children to Father. The court
specifically rejected Mother’s claim that she was
confused by the visitation order. The court determined mother demonstrated a lack of respect for
the visitation order, that she willfully and intentionally denied Father’s visitation, refused to provide Father with the children’s school calendars
and prevented and interfered with Father’s telephone calls to his children. The court also found
Mother guilty of indirect contempt. Father’s testimony and documentary evidence meets the twoprong test set forth in Gibbons v. Gibbons. 1968 OK
77, 442 P.2d 482 and 43 O.S. Supp. 2003
§112(D)(1). The weight of the evidence supports
the trial court’s finding the children’s moral, temporal and mental welfare would be better off if
the requested change in custody were ordered.
Mother’s appeal of the trial court’s finding of
indirect civil contempt is premature. Mother also
argues the court erred when it denied her motion
for new trial. Mother, however, failed to attach
the court’s final order denying her motion to
reconsider. Therefore, it is not before this Court.
The order of the trial court is AFFIRMED. Opinion by Bell, P.J.; Hansen, J., and Joplin, J., concur.
102,146 — Donald E. Warren and Velma I. Nelson, Co-Personal Representatives of the Estate of
Margaret C. Hice, deceased, Plaintiffs/Appellants, vs. Judy Lynn Rios a/k/a Judy Lynn Reece
and Marcos Q. Rios, Defendants/Appellees.
Appeal from the District Court of Grady County,
Oklahoma. The Honorable Richard Van Dyck,
Judge. Plaintiffs, Co-Personal Representatives of
the Estate of Margaret C. Hice, Deceased (Decedent), seek review of the trial court’s order granting judgment to Defendants on Plaintiffs’ claims
of fraud, conversion and for declaratory judgment, by which Plaintiffs sought to recover real
and personal property allegedly belonging to the
Estate of Decedent. We consequently cannot say
the trial court’s judgment that the Chickasha
property did not constitute Decedent’s homestead is against the clear weight of the evidence.
1815
We discern no violation of 16 OS §4, nor the existence of any confidential relationship, nor fraud
by or between Hice and Mrs. Rios in violation of
any rights of Decedent. The evidence clearly and
convincingly demonstrates a valid inter vivos gift
to Mrs. Rios. We agree with Defendants that
Plaintiffs, absent from the Hices’ home for many
years, failed to prove the conversion of which
they complained. AFFIRMED. Opinion by Joplin,
J.; Bell, P.J., and Hansen, J., concur.
102,275 — Carmen S. Spencer, Plaintiff
Appellant, vs. Waymon N. Spencer, Defendant/Appellee. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable Gregory J. Ryan, Trial Judge. Wife contends the trial
court abused its discretion in not addressing
Husband’s deliberate misconduct in hiding marital assets. The trial court found Wife failed to
meet her burden of proof in the allegations that
she made. A trial court’s decision to grant or deny
a motion for a new trial is highly discretionary.
Unless it clearly appears the trial court erred in
some pure simple question of law or acted arbitrarily, its judgment will not be disturbed on
appeal. In this case, Wife does not suggest the
trial court erred in a question of law. Instead, she
contends the trial court abused its discretion in
refusing to address Husband’s misconduct in
hiding marital assets. The record reveals the trial
court did peruse the evidence concerning Wife’s
factual allegations of misconduct. The record also
reveals Wife offered no proof that any of the
property items in question are even marital
assets. Other than vague allegations, Wife did not
show any evidence of Husband’s fraud or misconduct entitling her to a new trial. AFFIRMED.
Opinion by Hansen, J.; Bell, P.J., and Joplin, J.,
concur.
102,276 — Buy For Less, Petitioner, vs. Alexis
Rivera 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 of the Workers’ Compensation Court affirming the trial court’s award of
benefits to Claimant. In this proceeding, Employer asserts Claimant’s testimony concerning
occurrence of the alleged accidental injury was
wholly incredible. Claimant’s immigration status
does not affect his right to receive workers’ compensation benefits. The trial court heard and considered the testimony of Claimant — including
the alleged inconsistencies concerning use of a
false social security number, the date of the injury,
and contemporaneous notice of the injury to his
supervisor — and implicitly determined his testi1816
mony credible; the Court en banc affirmed. We
will not substitute our judgment for that of the
lower court and we find the testimony and evidence competent to support the lower court’s
determination. SUSTAINED. Opinion by Joplin,
J.; Bell, P.J., concurs in result, and Hansen, J., concurs.
102,691 — Sheryl Jo Corn, individually and as
Guardian of Bret Allen Corn, an incapacitated
person, and as mother and next friend of the
minor Plaintiffs, Bret Alan Corn, Jr., Autumn
Corn and Jazzaray Corn, Plaintiff/Appellant, vs.
Comanche County Memorial Hospital Authority,
d/b/a Comanche County Memorial Hospital, a
public trust, Defendant/Appellee, and David
Ladden, M.D.; Ronald G. Woodson, M.D., individually; Ronald G. Woodson, M.D., Inc.; Robert
Sweeny, M.D.; and R. Nathan Grantham, M.D.,
Defendants. Appeal from the District Court of
Comanche County, Oklahoma. Honorable Allen
C. McCall, Judge. Appellant (Corn) has asserted
11 assignments of error in this negligence action
against Appellee (Hospital). However, the dispositive question before this Court is whether the
180-day period for Plaintiff to file suit began to
run on September 15, 2003 (the statutory denial
date) or on December 14, 2003 (the date specified
by Hospital’s insurance adjuster). Carswell v.
Okla. State Univ., 1999 OK 102, ¶14, 995 P.2d 1123
is controlling. Considering the evidentiary materials presented by the parties on summary judgment and all inferences to be drawn therefrom,
we hold under the facts of this case the 180-day
period began to run on December 14, 2003, and
therefore, Plaintiff’s petition, which was filed
within 180 days of this date, was timely. The trial
court’s judgment in favor of Hospital is reversed
and this matter is remanded for further proceedings. It is unnecessary for this Court to address
the remainder of Plaintiff’s assignments of error.
REVERSED AND REMANDED. Opinion by Bell,
P.J.; Hansen, J., and Joplin, J., concur.
103,045 — Tim Ryan, Plaintiff/Appellant, vs.
James Mickus, an Individual, Defendant, and The
Archdiocese of Oklahoma City, an Unincorporated Association, Defendant/Appellee. Appeal
Oklahoma. Honorable Patricia G. Parrish, Trial
Judge. Appellant (Ryan) sued Appellee (Archdiocese) for defamation, alleging he relied upon the
Archdiocese’s policy of confidentiality when he
contacted its hotline established for persons sexually abused by clergy to report allegations of
molestation. He alleged the Archdiocese thereafter made public statements to discredit, humiliate, and defame him. The trial court granted
Vol. 77 — No. 17 — 6/10/2006
summary judgment to Archdiocese. Ryan
appeals. To establish a cause of action for defamation, Ryan must show either the elements of libel
pursuant to 12 O.S. 2001 §1441 or those of slander
pursuant to §1442. In either case, he must show a
false statement by Archdiocese. He has made no
showing Archdiocese made any false statements.
The only statements Ryan claims are false were
made by Defendant, Mickus’ attorney, Stephen
Jones. Ryan has submitted no evidence showing
any relationship between Archdiocese and Jones
that would give rise to vicarious liability on the
part of Archdiocese for Jones’ statements. Ryan
has failed to establish a contested issue of fact as
to whether Archdiocese made any false statement
about him. Therefore, the trial court properly
granted summary judgment for Archdiocese. Its
order is AFFIRMED. Opinion by Hansen, J.; Bell,
P.J., and Joplin, J., concur.
(Division No. 2)
Tuesday, April 25, 2006
102,073 — Norman Robert Henson, Plaintiff/Appellee, v. Regina Henson, Defendant/
Seminole County, Hon. Lee G. Stilwell, Trial
Judge. This is Regina Henson’s appeal from the
trial court’s April 1, 2005, order denying her
application to enforce an earlier court order
against Norman Henson. Based upon our review
of the facts and applicable law, we affirm.
AFFIRMED. Opinion from Court of Civil
Appeals, Division II, by Goodman, J.; Wiseman,
P.J., and Rapp, V.C.J. (sitting by designation),
concur.
101,485 — Brigid Lenore Larson, R.N., Plaintiff/Appellant, vs. Oklahoma Board of Nursing,
Defendant/Appellee. Appeal from order of the
District Court of Oklahoma County, Hon. Carolyn R. Ricks, Trial Judge, affirming the Oklahoma Board of Nursing’s order suspending
nurse’s license. Board and nurse entered into an
agreement that imposed discipline on nurse for
failure to adequately coordinate, plan, and implement appropriate care for one of nurse’s patients.
The agreement required nurse, in part, to prepare
a scholarly paper that would meet certain criteria
and would be approved by Board; the agreement
stated that failure to comply with the agreement
would result in a three-month suspension. Board
determined that nurse failed to comply with the
requirements of the settlement agreement
because nurse’s paper did not contain the requisite number of references, did not include an
annotation, did not comply with the correct forVol. 77 — No. 17 — 6/10/2006
mat, contained incorrect or inaccurate text and
reference list, and included resources that were
not scholarly. Board suspended nurse’s license
for three months. The requirements regarding the
content and format of the paper are set forth
clearly in the settlement agreement and are matters within Board’s expertise, and the record supports Board’s conclusion that nurse failed to submit a paper that complied with the requirements
of the agreement. The discipline imposed is the
discipline to which nurse agreed for failure to
comply with the terms of the agreement and is
not unreasonable, arbitrary, or capricious.
Appeals, Division II, by Wiseman, P.J.; Goodman,
J., and Gabbard, J. (sitting by designation),
concur.
101,786 — Varick-Timothy Child Care, Inc.,
Plaintiff/Appellee, v. Sonya Miles, Defendant/
Appellant. Appeal from an order of the District
Court of Tulsa County, Hon. Charles R.
Hogshead, Trial Judge, awarding possession of
leased premises to Varick-Timothy Child Care,
Inc. (Landlord) in this small claims forcible entry
and detainer action. Landlord sought possession
of the premises on which Sonya Miles (Tenant)
operated a child care facility. Tenant entered into
a lease that was signed by the president of the
Varick-Timothy Child Care board of directors
and two board members. The trial court found
that Tenant’s lease was with the Varick-Timothy
board and the president, and not with the Landlord corporation. We find that the trial court erred
in granting possession to Landlord. The bylaws
of the corporation gave the president general
supervision over the affairs of the corporation.
The record does not support a conclusion that the
president lacked authority to bind Landlord to
the obligations of the lease. The president and the
two signing board members intended to bind the
corporation and the lease is a valid, enforceable
contract between Landlord and Tenant. We
reverse the trial court’s decision and direct it to
enter judgment for Tenant. REVERSED AND
REMANDED WITH DIRECTIONS. Opinion
from the Court of Civil Appeals, Division II, by
Wiseman, P.J.; Goodman, J., and Rapp, V.C.J. (sitting by designation), concur.
101,793 — Melanie Diann Treadwell, now Wise,
Plaintiff/Appellee, vs. Brian Mark Treadwell,
Defendant/Appellant. Appeal from order of the
District Court of Carter County, Hon. Charles G.
Tate, Trial Judge, modifying child support. The
trial court’s order modifying the amount of child
support is not against the clear weight of the evidence. Father’s income had materially increased
1817
since the time of the original order. In calculating
child support, the trial court correctly considered
bonuses, a “car use” allowance, payments on a
truck lease, and reimbursement for gas, automobile insurance, and meals. Father’s appeal is not
frivolous and Mother shall bear her own appellate attorney fees. AFFIRMED. Opinion from
Court of Civil Appeals, Division II, by Wiseman,
P.J.; Goodman, J., and Rapp, V.C.J. (sitting by designation), concur.
102,422 — Porter Neel (Neal), Petitioner v.
American Woodmark Corp., St. Paul Travelers
Insurance Company, and The Workers’ Compensation Court, Respondents. Proceeding to Review
an Order of a Three-Judge Panel of the Workers’
Compensation Court, Hon. Richard L. Blanchard,
Trial Judge, affirming the trial court’s denial of
Claimant’s claim against American Woodmark
Corporation (Respondent). Claimant was diagnosed with carpal tunnel syndrome while he was
working for Respondent, and he left his employment in October 2003 due to the problems with
his hands. He started building a barbed wire
fence for his uncle in March 2004 and last worked
on the fence in January 2005. He later testified
that his hands bothered him while he was driving
fence posts. Claimant sought benefits from
Respondent claiming his last date of exposure as
the date he left Respondent’s employ. We find
that the panel’s order denying compensation is
supported by competent evidence. While
Claimant met his burden of producing evidence
that he was exposed to cumulative trauma while
employed by Respondent, Respondent refuted
Claimant’s evidence with competent evidence
that Claimant was last exposed to cumulative
trauma to his hands while working for his uncle
for a period of more than 90 days. SUSTAINED.
Opinion from the Court of Civil Appeals, Division II, by Wiseman, P.J.; Goodman, J., and Gabbard, .J. (sitting by designation), concur.
102,751 — Trace, Inc. and Commerce & Industry Insurance Company, Petitioners, v. Eletra K.
Great, and The Workers’ Compensation Court,
Respondents. Proceeding to Review an Order of
a Three-Judge Panel of the Workers’ Compensation Court, Hon. Mary A. Black, Trial Judge,
awarding temporary total disability benefits to
Claimant, Eletra Great. We find that the panel’s
order is supported by the competent evidence of
Claimant’s medical expert who stated in his
report that Claimant should not be working at
any job and is considered temporarily totally disabled. Although there is competent evidence to
support a finding that Claimant is not temporarily totally disabled, we will not reweigh the evi1818
dence and will affirm the panel’s order because it
is supported by competent evidence. We affirm
the judgment of the workers’ compensation court
pursuant to Oklahoma Supreme Court Rule
1.202(b), 12 O.S.2001, ch. 15, app. 1. SUSTAINED.
Opinion from the Court of Civil Appeals, Division II, by Wiseman, P.J.; Goodman, J., and Rapp,
V.C.J. (sitting by designation), concur.
101,229 — Bank of Oklahoma, National Association, Successor Trustee of the W.T. Richardson
Trust Created Pursuant to Trust Agreement
Dated November 1, 1966, and as Thereafter
Amended, Plaintiff/Appellee, vs. The City of
Oklahoma City, Defendant, and Behrooz and
Melody Darakhshan, Defendants/Appellants.
Appeal from order of the District Court of Oklahoma County, Hon. Vicki Robertson, Trial Judge,
foreclosing the right of the City of Oklahoma City
to reopen certain public ways within its boundaries. Bank of Oklahoma owns properties in City
that were subject to public ways and easements.
Based on an ordinance passed by City, Bank filed
a petition seeking to foreclose City’s right to
reopen the public ways or easements because
they had reverted back to it. There is nothing in
the appellate record to support a finding that
Appellants did not receive adequate notice of the
Planning Commission hearing. Bank was not
required to show lack of use of the properties as
required under 11 O.S.2001 §42-102 through 42104, because City closed the properties pursuant
to 11 O.S.2001 §42-110 upon a finding that closing
the public ways and easements was necessary
and expedient. There is nothing in the record on
appeal to show that the closure was not necessary
or expedient. AFFIRMED. Opinion from Court of
Civil Appeals, Division II, by Wiseman,
P.J.; Goodman, J., and Reif, J. (sitting by
designation), concur.
101,738 — Jennifer Thompson, Plaintiff/
Appellant, v. Brian Robert Chojnacki and Katherine Marie Chojnacki, husband and wife; James E.
Haney and Ruby C. Haney, husband and wife,
Defendants/Appellees. Appeal from the District
Court of Cherokee County, Hon. Jeff Payton, Trial
Judge. Jennifer Thompson appeals the trial
court’s January 10, 2005, order which rejected her
claim for a prescriptive easement upon the
respective properties of Brian Robert Chojnacki
and Katherine Marie Chojnacki, and James E.
Haney and Ruby C. Haney. Based upon our
review of the facts and applicable law, we affirm.
Vol. 77 — No. 17 — 6/10/2006
P.J., and Reif, J. (sitting by designation), concur.
TCMS also appeals the underlying default judgment. Based upon our review of the facts and
applicable law, we affirm. AFFIRMED. Opinion
from Court of Civil Appeals, Division II, by
Goodman, J.; Gabbard, J. (sitting by designation),
concurs, and Wiseman, P.J., concurs in result.
101,756 — State of Oklahoma, ex rel., C. Wesley
Lane, Plaintiff/Appellee, v. Seven Hundred
Twenty Five Dollars ($725.00), Defendant. Oliver
Thomas Stringer, Claimant/Appellant. Appeal
from an order of the District Court of Oklahoma
County, Hon. Bryan C. Dixon, Trial Judge, denying Claimant’s motion to vacate a default judgment in which the trial court ordered forfeiture of
$725 to the State of Oklahoma. Claimant was
stopped for traffic violations, and a subsequent
search of his vehicle revealed 75 pounds of
cocaine. Claimant was arrested, and his vehicle
and $725 in cash were confiscated. State filed a
forfeiture action, gave notice by publication and
by mail to Claimant and his passenger, and later
personally served Claimant with notice at the
Oklahoma County jail. Claimant was subsequently convicted of trafficking and sentenced to
30 years in the penitentiary. Claimant failed to file
an entry of appearance, motion, response or
answer to the forfeiture action, and the trial court
granted default judgment to State. Over four and
a half years after the entry of default judgment,
Claimant filed a motion to vacate. We find
Claimant failed to show any due process violation in the entry of the forfeiture judgment by
default. Claimant was notified of his right to
object to the forfeiture and of his right to be heard
but failed to exercise these rights. We also find
State’s submission of the arresting police officer’s
affidavit setting out the factual basis for its forfeiture request constitutes a prima facie showing of
the nexus between the seized cocaine and the
money found in close proximity, a showing
which Claimant failed to rebut. We also reject
Claimant’s assertion that the limitations period
applicable to his motion to vacate was tolled
because of his incarceration. We decline to extend
the legal disability provision of 12 O.S.2001 §96 to
prisoners to toll limitations periods. AFFIRMED.
Opinion from the Court of Civil Appeals, Division II, by Wiseman, P.J.; Goodman, J., and Rapp,
V.C.J. (sitting by designation), concur.
101,903 – State of Oklahoma, ex rel. Tim Harris,
District Attorney, Plaintiff/ Appellee, v. 1998
Lexus VIN: JT8BD68S2W0034986, Tag 2004 OK
TKU-305, and One Thousand Two Hundred
Sixty-Three Dollars ($1,263.00), One (1) Lorcin
9MM Handgun, One (1) S&W 32 Cal. Revolver,
Defendant, and Lisa Crisp, Interested
Party/Appellant. Appeal from the District Court
of Tulsa County, Hon. David L. Peterson, Trial
Judge. This is Lisa Crisp’s (Owner) appeal from
the trial court’s February 17, 2005, order of forfeiture of her Lexus automobile. Owner contends
the vehicle was used by her estranged husband
to transport contraband without her knowledge,
and that she is the innocent owner of the vehicle.
She contends the trial court erred when it determined she failed to meet her burden of proof to
show she was the innocent owner. Based upon
our review of the facts and applicable law, we
affirm. AFFIRMED. Opinion from Court of Civil
Appeals, Division II, by Goodman, J.; Gabbard, J.
(sitting by designation), concurs, and Wiseman,
P.J., dissents.
102,139 — Margins, P.L.L.C., A Professional
Limited Liability Company, Plaintiff/ Appellee,
v. Tri-Cities Medical and Surgical, Inc., An Oklahoma Corporation, Defendant/Appellant.
Appeal from the District Court of Oklahoma
County, Hon. Noma D. Gurich, Trial Judge. TriCities Medical and Surgery, Inc., (TCMS) appeals
the trial court’s April 22, 2005, order denying its
motion to vacate an earlier order of default judgment filed against it on February 28, 2005, arising
from Margins P.L.L.C.’s breach of contract action.
102,104 — Leon Tidwell, Petitioner/Appellant/Cross-Appellee, v. Sylvia Tidwell, Respondent/Appellee/Cross-Appellant. Appeal from
the District Court of Muskogee County, Hon. A.
Carl Robinson, Trial Judge. Leon Tidwell (Husband) appeals the trial court’s April 22, 2005,
decree of divorce. Husband asserts the trial court
erred in awarding the marital home to Sylvia Tidwell (Wife) as her separate property without providing him with a credit for payments made during the marriage to substantially reduce the mort-
Vol. 77 — No. 17 — 6/10/2006
102,303 — Philip Raun Atkinson, Petitioner/
Appellee, v. Roselma Ersilia Atkinson, Respondent/Appellee. Appeal from the District Court of
Carter County, Hon. Charles G. Tate, Trial Judge.
Roselma Ersilia Atkinson appeals from the trial
court’s June 13, 2005, order granting a motion to
modify child custody filed by her former husband Philip Raun Atkinson. Based upon our
review of the facts and applicable law, we reverse
and remand with instructions. REVERSED AND
REMANDED WITH INSTRUCTIONS. Opinion
from Court of Civil Appeals, Division II, by
Goodman, J.; Wiseman, P.J., and Rapp, V.C.J. (sitting by designation), concur.
1819
gage indebtedness on the home during the parties’ marriage. Wife appeals the same decree
asserting the trial court erred in dividing the parties’ marital debt. Based on the facts and applicable law, we reverse and remand with instructions.
REVERSED
AND
REMANDED
WITH
INSTRUCTIONS. Opinion from Court of Civil
P.J., concurs, and Rapp, V.C.J. (sitting by designation), concurs in part and dissents in part.
102,722 — Fay McCord, Petitioner/Appellant,
v. Grandma’s Child Care, Compsource Oklahoma and the Workers’ Compensation Court,
Respondents/ Appellees. Proceeding to Review
Compensation Court, Hon. Ellen C. Edwards,
Trial Judge. Claimant Fay McCord seeks review
of a three-judge panel’s October 25, 2005, order
vacating the trial court’s July 18, 2005, order. The
trial court found Claimant’s injury to be workrelated and compensable. The panel vacated the
order, finding the injury was not work-related.
Based upon our review of the facts and applicable law, we reverse the panel’s order. REVERSED.
Opinion from Court of Civil Appeals, Division II,
by Goodman, J.; Wiseman, P.J., and Reif J. (sitting
by designation), concurs specially.
97,450 — Eric J. Ford, Plaintiff/Appellant v.
Correctional Officer Lieutenant Van Blaricom,
Defendant/Appellee. Appeal from orders of the
District Court of Pittsburg County, Hon. Thomas
M. Bartheld, Trial Judge, denying Ford’s petition
for a writ of mandamus. Ford, an inmate in the
custody of the Oklahoma Department of Corrections, filed a petition for a writ of mandamus asking the trial court to direct a correctional officer to
return a pair of sunglasses to him which he
claimed were prescribed by an optician. The issue
on appeal is whether the trial court abused its
discretion in denying both Ford’s petition for a
writ of mandamus and his motion to reconsider.
We find the trial court did not abuse its discretion, because Ford failed to exhaust his administrative remedies prior to filing his petition.
AFFIRMED. Opinion from the Court of Civil
Appeals, Division II, by Wiseman, P.J.;
Goodman, J., and Gabbard, J. (sitting by
100,573 — John H. Regur, Jr., Plaintiff/
Appellee, vs. Charley Moon, Defendant/
Appellant. Appeal from orders of the District
Court of Oklahoma County, Hon. Larry Shaw,
Trial Judge, relating to a protective order against
Defendant. The trial court did not abuse its dis1820
cretion in granting a protective order to Plaintiff,
where evidence established a pattern by Defendant of following Plaintiff with the intent of placing him in reasonable fear of death or bodily
injury. The evidence shows, among other facts,
that Defendant attempted to run into Plaintiff
with a car and that Defendant was seen with a
gun immediately after shots came through Plaintiff’s bedroom window. Defendant’s due process
arguments are without merit as he had notice of
the allegations against him, he was given adequate time to prepare to answer those allegations,
and his attorneys had notice that the trial court
would hear both his motion to reconsider and
Plaintiff’s application for attorney fees at the
same hearing. AFFIRMED. Opinion from Court
of Civil Appeals, Division II, by Wiseman, P.J.;
Goodman, J., and Reif, J. (sitting by designation),
concur.
101,773 — Dennis Dancer, Plaintiff/Appellant,
v. State of Oklahoma, ex rel. Oklahoma Department of Public Safety and Merit Protection Commission, Defendant/Appellees. Appeal from the
District Court of Wagoner County, Hon. G. Bruce
Sewell, Trial Judge. Dennis Dancer (Dancer)
appeals the trial court’s February 1, 2005, order
affirming the April 21, 2004, final order of the
Oklahoma Merit Protection Commission which
affirmed Dancer’s termination by the Department of Public Safety. Based upon our review of
the facts and applicable law, we affirm.
Appeals, Division II, by Goodman, J.;
Wiseman, P.J., and Gabbard, J. (sitting by
102,048 — Mike Warren and Judy Warren, and
Angie Miller, natural mother and legal custodian
of Cameron Normore, a minor child, Plaintiffs/Appellants, vs. United States Specialty
Sports Association, Defendant/Appellee. Appeal
from orders of the District Court of Oklahoma
County, Hon. Vicki L. Robertson, Trial Judge, dismissing Plaintiffs’ claims of intentional infliction
of emotional distress and false light invasion of
privacy and granting summary judgment on
Plaintiff Judy Warren’s claim of assault. Plaintiffs’
action arises out of an incident in which an eightand-under baseball team had to forfeit a game in
a tournament sponsored by Defendant USSSA,
based on a complaint that the team had violated
a rule regarding the players’ roster. The decision
to require the team to forfeit a game after an official complaint was lodged against the team is not
conduct that is so extreme and outrageous as to
meet the standard for the torts of intentional
infliction of emotional distress or false light inva-
Vol. 77 — No. 17 — 6/10/2006
sion of privacy. USSSA cannot be held liable for
an alleged assault against Plaintiff Judy Warren
by Ted Cox, the Oklahoma state director of baseball for USSSA. Cox established TCRG Sports,
Inc., an Oklahoma company doing business as
USSSA Baseball, which organized USSSA sanctioned tournaments. At the time the alleged
assault occurred, Cox was not engaged in an act
for USSSA and was not furthering any purpose of
USSSA; the conduct did not occur where the
tournament was located and did not occur at the
time that Cox made the decision to forfeit the
game; and it did not arise out of any natural
impulse incident to completing USSSA’s business. Under the general rule that an assault on a
third party is not within the scope of employment, USSSA cannot be held liable for the alleged
assault of Plaintiff Judy Warren. AFFIRMED.
Opinion from Court of Civil Appeals, Division II,
by Wiseman, P.J.; Goodman, J., and Reif, J. (sitting
by designation), concur.
102,297 — Michael E. Maxwell and Dixie Lee
Maxwell, Husband and Wife; Theodore A.
Adams and Loretta Adams, Husband and Wife;
Melvina Cottle; Stephen Montee and Rhonda
Montee, Husband and Wife; and James Novotnak, Plaintiffs/Appellants/Counter-Appellees, v.
Charlie Vaughn, Jr. and Norvileane Vaughn, Husband and Wife; Randall D. Vaughn and Jacqueline J. Vaughn, Husband and Wife, Defendants/Appellees/Counter-Appellants. Appeal
from the District Court of Tulsa County, Hon. Jefferson D. Sellers, Trial Judge. This is the appeal
and counter-appeal of the trial court’s June 1,
2005, order granting the defendants’ motion for
summary judgment and denying the plaintiffs’
motion for summary judgment. The summary
judgment held that while a protective covenant
on the parties’ residential real properties
remained in effect, its provisions did not prohibit
the division of one of those properties into two
parcels or the construction of a new house on one
of the newly-divided parcels. Both parties appeal
from the order. The appeal was assigned to the
accelerated docket pursuant to Oklahoma
Supreme Court Rule 1.36(a)(1), 12 O.S.2001 and
Supp. 2003, ch. 15, app. 1. Based on our review of
the facts and law, we affirm. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by
Goodman, J.; Wiseman, P.J., and Rapp, V.C.J.,
concur.
Tuesday, June 6, 2006
101,472 — American Airlines, Inc., and American Home Assurance Company, Petitioners, v.
David B. Hickman, and The Workers’ Compensation Court, Respondents. Proceeding to Review
Vol. 77 — No. 17 — 6/10/2006
Compensation Court, Hon. Richard L. Blanchard,
Trial Judge, affirming an award of benefits to
Claimant, David B. Hickman. The issue on
appeal is whether the statute of limitations of 85
O.S.2001 §43 was tolled by Employer’s authorization of medical treatment for Claimant. We find
that it was not and reverse the panel’s order. The
statute of limitations relevant to Claimant’s claim
provides that a claim is barred unless it is filed
with the workers’ compensation court within
two years after the accidental injury, provided
that, “a claim may be filed within two (2) years of
the last payment of any compensation or remuneration in lieu of compensation or medical treatment which was authorized by the employer or
the insurance carrier.” 85 O.S.2001 §43(A). In the
case at bar, Employer did not pay for the medical
treatment that it authorized; Claimant therefore
had two years from September 10, 2001 (the date
of accidental injury or last exposure to cumulative trauma aggravation), to file his claim. His
claim, which was filed on February 10, 2004, is
therefore untimely. REVERSED. Opinion from
the Court of Civil Appeals, Division II, by
Wiseman, P.J.; Goodman, J., and Gabbard, J.
(sitting by designation), concur.
101,941 — Steve Reynolds, Petitioner, vs. Bennett Steel, Inc., AIU Insurance Company, and The
Workers’ Compensation Court, Respondents.
Proceeding to Review an Order of a Three-Judge
Panel of The Workers’ Compensation Court,
Hon. Susan Witt Conyers, Trial Judge, holding
that Employer was entitled to credit for overpayment of vocational rehabilitation benefits paid to
Claimant pursuant to 85 O.S. Supp. 2005 §16 and
that Claimant was not entitled to permanent total
disability benefits. There is no competent evidence in the record to support the trial court or
panel’s findings that Claimant unreasonably
refused to participate and complete vocational
retraining. REVERSED AND REMANDED FUR
FURTHER PROCEEDINGS. Opinion from the
Court of Civil Appeals, Division II, by Gabbard, J.
(sitting by designation); Wiseman, P.J., concurs,
and Goodman J., dissents.
102,169 — Oklahoma Military Department and
Compsource Oklahoma, Petitioners, v. Richard
A. Collins 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, determining that Claimant, Richard
A. Collins, sustained an accidental personal
injury that arose out of and in the course of his
employment. Claimant served as a platoon ser-
1821
geant at one of Employer’s facilities. His duties
included training the cadets in physical fitness.
While preparing to take the cadets on a long run,
Claimant lifted weights in the academy’s fitness
gym and then used the stair machine. After
approximately twenty minutes on the stair
machine, Claimant suffered a ruptured subarachnoid aneurysm. The trial court found that
Claimant did not prove that his ruptured
aneurysm was caused by work-related stress in
excess of that experienced by a reasonable person
in the conduct of everyday living. A three-judge
panel found Claimant’s injury to be compensable. We find there is competent evidence in the
record to support the panel’s finding. The lay and
medical evidence supports a finding that
Claimant’s ruptured aneurysm resulted from
work-related stress in excess of that experienced
by a person in the conduct of everyday living and
that the ruptured aneurysm arose out of and in
the course of employment. The panel’s order is
sustained by summary opinion, under Oklahoma
Supreme Court Rule 1.202(b), 12 O.S.2001, Ch. 15,
App. 1. SUSTAINED. Opinion from the Court of
Civil Appeals, Division II, by Wiseman, P.J.;
Goodman, J., and Reif, J. (sitting by designation),
concur.
(Division No. 3)
100,924 — Peaceable Village, Inc., Plaintiff/
Appellee, v. George David Sadler, Defendant/
Pittsburg County, Oklahoma. Honorable David
N. Martin, Judge. This appeal concerns the interpretation and enforcement of restrictive
covenants in a residential subdivision known as
Village Addition #4 (the Village), in the City of
McAlester. Appellee (Developer) retained ownership of a two-foot-wide collar of land along the
southern boundary of the Village, which it designated as Lot 28. Appellant (Sadler), who resides
on 120 acres of undeveloped land abutting Lot 28,
purchased Lot 21 in the Village. Sadler then constructed a gravel drive from the improved
asphalt street in the Village, across Lots 21 and 28,
to his residence on the 120 acres. The Village
sought a permanent injunction against Sadler,
alleging his roadway constitutes a trespass across
Lot 28 and violates the protective covenant limiting use of Lot 21 to single-family dwellings.
Sadler defended, arguing his driveway complies
with the residential restrictions, and filed a counterclaim asserting title by prescription to Lot 28.
The trial court permanently enjoined Sadler from
using Lot 21 and/or entering Lot 28 as a passageway from the Village to any adjacent proper1822
ty. Sadler appeals. The protective covenant
describing the Village lots as “residential building plots” and prohibiting all structures except
“one detached single-family dwelling, in which
only one family may reside,” is clear and unambiguous. The developers’ failure specifically to
forbid roadway construction and prohibit the use
of lots for access to adjacent land does not nullify
or in any way effect the clearly expressed intention of the dedicator that the lots involved here
shall be used for residence purposes only. We
affirm the trial court’s ruling that Sadler’s use of
Lots 21 and 28 to construct a passageway to his
abutting property violates the single-familydwelling restriction. The trial court’s decision
that Sadler did not have a legal right to use his lot
as a driveway to property outside the subdivision
was not against the clear weight of the evidence.
We also affirm the trial court’s ruling that Sadler
failed to prove the elements necessary to claim
title by prescription or pursuant to the doctrine of
boundary by acquiescence to Lot 28. AFFIRMED.
Opinion by Mitchell, P.J.; Adams, J., and Buettner,
C.J., concur.
101,569 — Galen Bridenstine and Glen Bridenstine, for themselves and all others similarly situated, Plaintiffs/Appellees, v. Kaiser-Francis Oil
Company, Defendant/Appellee, and Anadarko
Petroleum Corporation, and Questar Exploration
and Production Company, Intervenors/
Appellants. Appeal from the District Court of
Texas County, Oklahoma. Honorable Ronald L.
Kincannon, Trial Judge. Appeal of the entry of a
Superseding Journal Entry of Judgment in a class
action for royalty underpayment claiming fraud,
deceit, breach of fiduciary duty, conspiracy, conversion, breach of contract, and unjust enrichment, following trial to a jury, entry of judgment,
appeal, affirmance of the judgment, and mandate. The new judgment was entered pursuant to
a settlement after mandate. Appellants, who had
intervened, argued the trial court lacked authority to enter the new judgment and that consequently that judgment is void. HELD: The decision in a related appeal considered this same day,
Case No. 101,992, obviates any prejudice to the
rights or interests of Appellants. As a consequence, the trial court’s entry of the Superseding
Judgment will not have any of the adverse or
prejudicial effects cited by Appellants and any
appellate decision here relating to the Superseding Judgment will not afford Appellants any
relief. Where, as here, an appellate decision will
merely determine abstract or hypothetical questions of law without effectuating any relief to any
of the parties due to events occurring during the
pendency of the appeal, we will not pass upon
Vol. 77 — No. 17 — 6/10/2006
such questions, and the appeal will be dismissed
as moot. Due to dismissal, we need not address
arguments as to jurisdiction, standing, or the
validity of the entry of the new judgment. DISMISSED AS MOOT. Opinion by Adams, J.;
Mitchell, P.J., and Bell, J., sitting by designation,
concur.
101,813 — Century Life Assurance Company,
an Oklahoma insurance corporation, Plaintiff/
Appellee, v. Gilford Delozier, Defendant/
Osage County, Oklahoma. Honorable J.R. Pearman, Judge. Gilford Delozier sued Century Life
Assurance Company for bad faith denial of insurance coverage. Century’s service agent, who had
a debilitating illness, did not recall receiving service of process, although court records show the
green card was signed and returned. Century,
however, never received actual notice of the lawsuit and a default judgment was entered against
it. Thereafter, Century petitioned for vacation of
the default judgment, which the trial court granted on several grounds, including default judgments obtained by “irregularity,” “fraud,” and
“unavoidable casualty or misfortune,” as well as
the right to due process which contemplates
notice of proceedings and the opportunity to
defend. Because we find no abuse of discretion in
the trial court’s application of 12 O.S. 2001
§1031(7), “unavoidable casualty or misfortune,
preventing the party from prosecuting or defending,” we affirm. AFFIRMED. Opinion by Buettner, C.J.; Adams, J., and Mitchell, P.J., concur.
101,992 — Kaiser-Francis Oil Company, Plaintiff/Appellant, v. Anadarko Petroleum Corporation, and Questar Exploration and Production
Company, Defendants/Appellees. Appeal from
the District Court of Tulsa County, Oklahoma.
Honorable Jane Wiseman, Trial Judge. Appeal of
dismissal of amended petition and denial of
another proposed amendment. The trial court
found that in pari delicto applied and therefore
Appellant could not state a cause of action for
which relief could be granted and further that
amendment would not cure the defect and would
be futile. HELD: The basis of Appellant’s petition,
and its proposed amendment, are dependent
upon a final judgment conclusive as to the facts,
which facts show that the parties were conspirators and in pari delicto. As between parties in pari
delicto, the law will aid neither and will leave
them as it finds them. The damages Appellant
seeks indemnification for stem solely and directly from its own involvement as part of an agency,
joint venture, or partnership in a conspiracy
involving fraud, deceit, breach of fiduciary duty,
Vol. 77 — No. 17 — 6/10/2006
conversion and unjust enrichment, and the only
“facts” suggested as a basis for amendment and
development relate to the wrongs committed
during the conspiracy. Appellant, being in pari
delicto, is not eligible to recovery indemnity. The
trial court’s assessment that the defect in Plaintiff’s petition could not be remedied to state a
cause of action entitling it to relief and its dismissal of the petition with prejudice are
AFFIRMED. Opinion by Adams, J.; Mitchell, P.J.,
and Bell, J., sitting by designation, concur.
102,305 — Byron Davis, Plaintiff/Appellant, v.
Atlantis Plastic Films, Inc., Defendant/
Appellee, and Atlantis Plastics, Inc.; and Battenfield Gloucester Engineering Co., Inc.; Defendants. Appeal from the District Court of Tulsa
County, Oklahoma. Honorable J. Michael Gassett, Trial Judge. Byron Davis appeals a trial court
order granting judgment to Atlantis Plastic Films,
Inc. (APF) in his action to recover for damages he
allegedly sustained as a result of an injury which
occurred while he was working for APF at its
plant in Tulsa. The trial court sustained a summary judgment motion filed by APF which
argued that it was immune from common-law
suit by the terms of 85 O.S.2001 §12 and that
Davis was barred from proceeding in the district
court because he had filed a workers’ compensation claim and received benefits. We reverse and
remand the case because the legal basis for the
immunity claimed by APF has been significantly
modified since the trial court’s decision by Parret
v. UNICCO Service Company, 2005 OK 54, 127 P.3d
572, and the evidentiary material presented to the
trial court was insufficient to establish the basis of
any bar which might arise from Davis’ workers’
compensation claim. REVERSED AND
REMANDED. Opinion by Adams, J.; Buettner,
C.J., concurs, and Mitchell, P.J., specially concurs.
99,634 — Sandra M. Lefler, Plaintiff/Appellant,
v. Gregory G. Meier, the Meier Law Firm and
Meier, Morgan, Hatley & Stock, Defendants/
Appellees. Appeal from the District Court of
Tulsa County, Oklahoma. Honorable J. Michael
Gassett, Judge. This action stems from the dissolution of Meier & Cole, P.L.L.C. (Meier & Cole),
the law firm Plaintiff/Appellant Lefler and
Defendant/Appellee Gregory G. Meier (Meier)
formed as equal partners in 1998. Meier and
Lefler, also created Uptown Properties, L.L.C. in
2000, to own and operate the building housing
Meier & Cole’s law offices. Lefler contends we
should reverse many of the trial court’s findings
of fact and conclusions of law because they are
unsupported by record evidence. We agree that
1823
Findings 24 and 26 are problematic. While it is
technically true Lefler never voted on any capital contribution matters related to the dissolution, Finding 24, to the extent it implies Meier
sought Lefler’s vote but that she failed, or
refused, to participate, is misleading and contrary to the clear weight of Meier’s own testimony. The clear weight of the evidence also
does not support Finding 26, that Meier made
repeated communications to Lefler concerning
requests for financial contribution and repeated
requests concerning the handling of various
Meier & Cole client matters. We disagree with
the trial court’s finding that, in failing to
respond to one e-mail requesting client names
sent three weeks after dissolution, and one postlawsuit demand for a financial contribution,
Lefler made it impossible for Meier to conduct
the affairs of Meier & Cole by consulting with
her or obtaining responses or votes from her on
any winding up matter and infeasible for him to
conduct the winding up affairs of Meier & Cole
by such methods. Finding 26 is contrary to the
clear weight of the evidence. We conclude the
trial court’s ruling that Meier is not liable to
Lefler on her breach of fiduciary duty claim is
not supported by the necessary competent evidence. We hold the trial court erred in concluding Meier is not liable to Lefler for breach of
fiduciary duty and affirm the trial court’s decision in all other respects. We direct the trial
court to redetermine the accounting in light of
our ruling that both Lefler and Meier breached
the fiduciary duties they owed to one another.
AFFIRMED IN PART AND REVERSED IN
PART. Opinion by Mitchell, P.J.; Adams, J., and
Buettner, C.J., concur.
100,492 — Kimberly S. Weaver, formerly
Close, Plaintiff/Appellant, v. David E. Close,
Defendant/Appellee. Appeal from the District
Court of Washington County, Oklahoma. Honorable Kyra K. Williams, Judge. Appellant
(Mother) appeals the trial court’s February 27,
2004 order modifying the parties’ divorce
decree by changing the primary residence of the
parties’ minor child from Mother to Appellee
(Father). Father filed a motion to dismiss Mother’s appeal, in which he asserts that Mother, by
subsequent agreed joint custody order filed January 9, 2006, consented to the minor child’s primary residence being with Father. Father argues
the agreed order renders moot the custody issue
at the center of this appeal. We hold that Mother, by agreeing to the January 9, 2006 joint custody order, acquiesced in the trial court’s February 27, 2004 judgment, thus rendering moot the
issue of the minor child’s primary residence. We
1824
dismiss Mother’s appeal pursuant to Sup. Ct.
Rule 1.6(c)(1). DISMISSED. Opinion by
Mitchell, P.J.; Adams, J., and Buettner, C.J.,
concur.
100,998 — Jeremy Sears, Plaintiff/Appellee, v.
Felicia Sears, now Hudlow, Defendant/
LeFlore County, Oklahoma. Honorable Danita
Williams, Judge. Defendant/Appellant Felicia
Sears, Now Hudlow, (Mother) appeals from the
trial court’s denial of Mother’s Motion to Modify Custody. At the time of the divorce, the court
awarded custody of the minor child to Plaintiff/Appellee Jeremy Sears (Father). Mother
sought a change of custody because the child
was living with his great-grandmother (as he
had been at the time of divorce), but Father had
moved to another town for work. The trial
court’s findings, that Mother had failed to prove
a permanent, material change of conditions or
that the child’s best interests required modification of custody, are not clearly against the
weight of the evidence nor an abuse of
discretion. We affirm. AFFIRMED. Opinion by
Buettner, C.J.; Adams, J., and Mitchell, P.J.,
concur.
101,210 — Oklahoma Department of Public
Safety, Petitioner/Appellant, v. Rodney
McCrady and The Oklahoma Merit Protection
Commission, Respondents/Appellees. Appeal
Oklahoma. Honorable Noma D. Gurich, Judge.
Petitioner/Appellant Oklahoma Department of
Public Safety (DPS) appeals from the District
Court’s decision affirming an order of Respondent/Appellee Oklahoma Merit Protection
Commission (OMPC) which awarded relief to
Respondent/Appellee Rodney McCrady. We
find OMPC erred in granting relief to McCrady
because DPS terminated McCrady’s employment while he was serving a probationary period following reinstatement, during which time
he had no right to appeal termination, pursuant
to the Oklahoma Administrative Code. We
therefore vacate the OMPC order and direct
that McCrady’s OMPC proceeding be dismissed. VACATED AND DISMISSED. Opinion
by Buettner, C.J.; Adams, J., and Mitchell, P.J.,
concur.
101,593 — Tommy Allen, Plaintiff/Appellee,
v. Perry Allen Trent, Defendant/Appellant, and
Jennifer Lynn Allen, Defendant. Appeal from
the District Court of Bryan County, Oklahoma.
Honorable Farrell M. Hatch, Judge. Perry Trent
and Jennifer Allen divorced July 18, 2003 and
custody of their young child was awarded to
Vol. 77 — No. 17 — 6/10/2006
Father. The decree recites that in the child’s best
interests, Mother would not have visitation
with the child. Tommy Allen is the child’s
maternal grandfather. In the case at bar, Tommy
Allen (Tommy or Grandfather) applied for visitation rights with the minor child. The trial
court awarded visitation. Father claims the visitation awarded was excessive and that there
was no showing of harm to the child or unfitness of Father. We find Grandfather carried his
burden of proof and the trial court properly
considered the child’s best interests. We modify
the amount of visitation and affirm the decision
as modified. AFFIRMED AS MODIFIED. Opinion by Buettner, C.J.; Adams, J., and Mitchell,
P.J., concur.
101,763 — Marcy Montgomery, an individual,
Plaintiff/Appellant, and Robert Montgomery,
an individual, Plaintiff, v. Timberbrook Homeowners Association, Inc., an Oklahoma nonprofit corporation, Defendant/Third-Party
Plaintiff/Appellee, and Swim Management and
Consulting Services, Inc., d/b/a Swim Management d/b//a Miller Swim School, an Oklahoma Corporation, Third-Party Defendant.
Appeal from the District Court of Wagoner
County, Oklahoma. Honorable Bruce Sewell,
Judge. Marcy Montgomery was a lifeguard
employed by Swim Management and Consulting Services, Inc., which had contracted with
Timberbrook Homeowners Association to run
all facets of its common area pool. She was
injured during this employment. Swim Management covered her injury through its workers’ compensation insurance. She then sued
Timberbrook Homeowners Association for negligent maintenance of the lifeguard chair. Timberbrook filed a motion for summary judgment
claiming it was a “principal employer,” hence
immune from liability to the Workers’ Compensation Act. The trial court granted summary
judgment in favor of Timberbrook. We affirm.
AFFIRMED. Opinion by Buettner, C.J.; Mitchell,
P.J., concurs, and Adams, J., dissents with separate opinion.
102,758 — Okmulgee Memorial Hospital and
Commerce & Industry Insurance Company,
Petitioners, v. Monica B. Zeier and the Workers’
Compensation Court, Respondents. Proceeding
to Review an Order of a Three-Judge Panel of
the Workers’ Compensation Court. Petitioners
Okmulgee Memorial Hospital (Employer) and
Commerce & Industry Insurance Company
Vol. 77 — No. 17 — 6/10/2006
seek review of an order of a three-judge panel of
the Workers’ Compensation Court. The panel
vacated the trial court’s finding that Respondent Monica B. Zeier did not incur an accidental injury arising out of and in the course of
employment. The panel substituted its finding
that Zeier sustained a work-related cumulative
trauma injury to both knees. Competent evidence supports the panel’s order and we sustain. SUSTAINED. Opinion by Buettner, C.J.;
Adams, J., and Mitchell, P.J., concur.
Friday, May 5, 2006
102,207 — Karen Craig, Petitioner, v. Independent School District No. 1 of Tulsa County,
Oklahoma, Own Risk, and the Workers’ Compensation Court, Respondents. Proceeding to
Review an Order of the Workers’ Compensation
Court. Honorable Kenton W. Fulton, Judge.
Karen C. Craig was working as a special education teacher at a Tulsa elementary school April
2, 2004. She alleged that she accompanied her
students to their bus that afternoon, and that
she was dilatory in leaving the bus. She claimed
the driver was irritated with her. She stated that
as she exited the school bus, her right shoulder
and right arm were caught in the bus door and
she was injured. The trial court weighed the testimony and credibility of the witnesses and
other evidence and found that Craig failed to
satisfy her burden of persuasion that she sustained a work-related injury. We sustain. SUSTAINED. Opinion by Buettner, C.J.; Adams, J.,
and Mitchell, P.J., concur.
102,844 — Southern Oklahoma Resource Center and CompSource Oklahoma, Petitioners, v.
Charlene Sparks and the Workers’ Compensation Court, Respondents. Proceeding to Review
Compensation Court. Southern Oklahoma
Resource Center (Employer) seeks review of an
order by a three-judge panel that determined
Claimant Charlene Sparks was permanently
totally disabled (PTD) due to her most recent
injury in combination with all prior injuries and
material increases after vacating a workers’
compensation trial court order to the contrary.
We conclude Employer has not demonstrated
the order is contrary to law or is unsupported
by any competent evidence. The order is sustained. SUSTAINED. Opinion by Adams, J.;
Buettner, C.J., and Mitchell, P.J., concur.
1825
CLASSIFIED ADS
SERVICES
SERVICES
APPEALS and LITIGATION SUPPORT — Research
and writing by a veteran generalist who thrives
on wide variety of projects, big or small. Cogent.
Concise. Nancy K. Anderson, (405) 682-9554,
nkanderson@hotmail.com.
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, marygaye@cox.net
LEGAL RESEARCH AND WRITING. Brief writing;
motions; civil appeals; trial support. Reasonable
rates. Ten years experience. Lou Ann R. Barnes
(918) 810-3755; louann@tulsacoxmail.com
HANDWRITING IDENTIFICATION
POLYGRAPH EXAMINATION
Board Certified
Diplomate — ABFE
Life Fellow — ACFE
Arthur D. Linville
Court Qualified
Former OSBI Agent
FBI National Academy
(405) 636-1522
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: pcowan@cox.net.
MEDICAL MALPRACTICE
Need to file a med-mal claim? Our licensed medical
doctors will review your case for a low flat fee. Opinion letter no extra charge. Med-mal EXPERTS, Inc.,
www.medmalEXPERTS.com. (888) 521-3601
AFARM Consulting, L.C.
Raleigh A. Jobes, Ph.D.
2715 West Yost Rd
Stillwater, OK 74075-0869
Phone (405) 372-4485 Fax (405) 377-4485
E-Mail raleigh.jobes@afarmconsulting.com
Agricultural Economic and Business Consultant
Will provide independent and objective analysis of agricultural
related problems. Resume and Fee schedule sent upon request.
SIGNATURE and HANDWRITING writer identified. DOCUMENTS examined for alterations.
Specialized lab equipment. Since 1978. Certified. PAT
TULL (405) 751-1299.
MEDICARE – MEDICAID – HEALTH LAW Mark S.
Kennedy, P.C. Attorneys and Counselors at Law – A
Health Law Boutique concentrating practice in
Healthcare regulatory and payment matters and other
Business Services to the healthcare provider and practitioner. Formerly Counsel to U.S. Department of
Health and Human Services’ Centers for Medicare &
Medicaid Services and Office of the Inspector
General. Voice (972) 479-8755; Fax (972) 479-8756;
markskennedylaw@msn.com
OFFICE SPACE
SECURITY NEGLIGENCE Special expertise in premise liability, security training and security procedures,
Authored four security textbooks. Thirty years
combined experience in security and law enforcement.
Contact Ron Vause. 1-800-728-0191.
TRAFFIC ACCIDENT RECONSTRUCTION
INVESTIGATION • ANALYSIS • EVALUATION • TESTIMONY
25 Years in business with over 20,000 cases. Experienced in
automobile, truck, railroad, motorcycle, and construction zone
accidents for plaintiffs or defendants. OKC Police Dept. 22 years.
Investigator or supervisor of more than 16,000 accidents.
ADA OFFICE SPACE AVAILABLE — The historic
American Building one block from the courthouse.
Professional offices in a variety of sizes and prices with
flexible terms. Convenient parking. Contact John
Fitzgerald (580) 759-2481.
OFFICES FOR RENT: NW Classen Location, OKC.
Telephone, law library, waiting area, receptionist, telephone answering service, office Desk & Chair, all
included in rent; Offices from $490.00 per month. No
lease required. Free parking. Gene (405) 525-6671.
Jim G. Jackson & Associates Edmond, OK (405) 348-7930
EXPERT WITNESSES • ECONOMICS •
VOCATIONAL • MEDICAL Economic Damages,
Lost Profits Analysis, Business/Pension Valuations,
Employment Discrimination, Divorce, Wrongful
Discharge, Vocational Assessment, Life Care Plans,
Medical Records Review, Business/Legal Ethics.
National Experience. Call Patrick Fitzgerald.
(405) 447-6093.
1826
PRESTIGIOUS OKC OFFICE SPACE — Ideal for small
law firm or solo practitioner. Located at 154th & N. May at
the entrance to Esperanza. Beautiful country French
building overlooks ponds and waterfalls; convenient to
Kilpatrick Turnpike and Hefner Parkway; inclusive of
receptionist; high speed internet; fax; copier; digital
telephone system; security system with cameras;
gourmet kitchen and conference room. $900 per month.
AVAILABLE NOW. Contact Gregg Renegar (405) 285-8118.
Vol. 77 — No. 17 — 6/10/2006
OFFICE SPACE
POSITIONS AVAILABLE
TWO OFFICES AVAILABLE FOR SUBLEASE — 204 N.
Robinson — OKC. Receptionist, phone, copier, fax, law
library, conference room, kitchen and DSL internet
access. Call Christy at Elliott and Peterson at (405) 2363600.
TULSA AV-RATED BOUTIQUE LAW PRACTICE seeking Associate Attorneys 2+ years experience. Litigation
or environmental law experience strongly preferred.
Full- and part-time schedule available. Provide salary
requirements. Send replies to Box “Q,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
PRESTIGIOUS OKC OFFICE SPACE 4528 N. Classen
Blvd. Reception, Fax, Copier, Telephone System,
Conference Room, Kitchen, parking in front and rear.
Frequent Referrals. Contact J.R. Homsey (405) 524-1011.
UP TO 12,000 SQ FT OF LUXURY OFFICE space, perfect
for law firm, across the street from Federal Court, One
block from Tulsa County Courthouse, Phone
system/DSL, Covered parking. (918) 289-7400.
POSITIONS AVAILABLE
EXPERIENCED LEGAL SECRETARY needed. Submit
resume to Job Search, Box 360, Edmond OK 73083-0360.
AV-RATED FIRM IN DOWNTOWN TULSA seeks experienced intellectual property legal secretary/assistant.
Only top candidates with solid experience in patent and
trademark matters need apply. Keen attention to detail
and organizational skills are essential. Team approach
and strong people skills desired. Salary and benefits
highly competitive. Submit resume to: Andrea D.
Everage, PHR, Fellers Snider, et al., 321 S. Boston, Suite
800, Tulsa, OK 74103, or aeverage@fellerssnider.com.
THE OKLAHOMA CORPORATION COMMISSION
has an opening in its Office of Administrative Proceedings, Oklahoma City, for an Administrative Law Judge
to conduct hearings within the agency’s oil and gas conservation jurisdiction, salary level to be determined
based upon education and work experience. Applicants
must be admitted to the Oklahoma Bar Association or
eligible for admission without examination. Preference
will be given to licensed attorneys with undergraduate
or graduate degrees in petroleum engineering or geology. Send resume and writing sample to Ms. Patrica Walters, Human Resources Department, Oklahoma Corporation Commission, P. O. Box 52000, Oklahoma City,
Oklahoma, 73152-2000, Telephone: (405) 522-2220, FAX:
(405) 521-4983, E-mail: p.walters@occemail.com. Deadline: June 19, 2006.
IN-HOUSE COUNSEL POSITION — Tulsa-based
domestic and international contract drilling company
seeks full-time attorney with 2-3 years experience in
energy, corporate and/or general business practice.
Submit confidential resumé with salary requirements
and references to: Helmerich & Payne, Inc., 1437
South Boulder Avenue, Suite 1400, Tulsa, OK
74119-3623, Attention: Tina York, Human Resources,
tina.york@hpinc.com; (918) 588-5485-fax.
Vol. 77 — No. 17 — 6/10/2006
SMALL N.W. OKC FIRM WITH HEAVY CASE
LOAD seeks associate with experience in personal
injury, and civil litigation. Candidate must also have
bankruptcy experience and working knowledge with
the new updates. Our firm practice focuses mainly in
personal injury, family practice, criminal practice and
bankruptcy. All contacts will be kept confidential.
Compensation package commensurate with
experience and performance. Send resume to Box
“R,” Oklahoma Bar Association, P.O. Box 53036,
THE CITY OF NICHOLS HILLS is seeking to fill the
position of City Attorney. The City Attorney shall be an
officer of the city appointed by the council for an indefinite term, and shall be the head of the department of law.
The attorney for the city or their duly appointed assistant shall also be the prosecuting officer of the court. All
work is performed under the direction of and subject to
administrative review by the City Council. Candidates
must be licensed to practice law in Oklahoma and have
a minimum of eight (8) years of experience in the practice of law with emphasis in municipal law. Compensation will be based upon qualifications. Nichols Hills is an
equal opportunity employer. Resumes can be mailed to
City of Nichols Hills, 6407 Avondale Dr. , Nichols Hills,
Oklahoma 73116, Attention: City Manager or delivered
to same address Monday through Friday from 8 a.m. to
5 p.m. Resumes will be accepted until position is filled.
CATHOLIC CHARITIES OF OKLAHOMA CITY is
seeking a full time bilingual (Spanish/English) attorney.
Will provide legal services for low-income clients
regarding family-based immigration law. Fax resume
to Margie Solis at (405) 523-3030.
RIGGS ABNEY NEAL TURPEN ORBISON & LEWIS
seeks a lawyer with a minimum of three years experience for the firm's Tulsa office. Experience in business
formations and transactions, real estate, securities,
estate planning, and/or tax is required. Please forward resume and salary requirements to Colleen
Nichols at cnichols@riggsabney.com.
LEGAL SECRETARY - State Farm Insurance Companies
in-house counsel, Angela Ailles & Associates has a Legal
Secretary position available. Secretarial experience in
insurance defense litigation is preferred. State Farm
offers an excellent salary and benefits package. If interested, please send fax your resume to (405) 478-0906.
Equal Opportunity Employer.
1827
POSITIONS AVAILABLE
POSITIONS AVAILABLE
LARGE OKLAHOMA CITY FIRM SEEKS TAX
ATTORNEY AND TRANSACTIONAL ATTORNEY:
Phillips McFall McCaffrey McVay & Murrah, P.C. is
looking to hire a Tax Attorney, preferred to have a LLM
and/or CPA with at least 3 years experience. We are
also seeking to hire a Transactional Attorney with 3-5
years experience who will work directly with Director
on commercial transactions, real estate law, design and
construction law, and international law. Excellent starting salary and benefits. Please send resume to Amy
Chavez, 12th Floor, One Leadership Square, 211 N.
Robinson, Oklahoma City, Oklahoma 73102 or
apchavez@phillipsmcfall.com.
TULSA LAW FIRM seeks attorney with 2-3
years’ experience in personal injury and workers’ compensation. Must have strong computer, research, and
writing skills. Compensation and benefits commensurate with case load. Submit confidential resume, writing sample, references and salary requirement to:
Legal Department, 6528 East 101st Street, D-1, Box 289,
Tulsa, OK 74133-6754.
3529 — TRUSTS & ESTATES ATTORNEY —
CONTRACT Excellent long-term contract opportunity
to work for a prestigious national non-profit organization on trusts and estate matters handling a wide variety of responsibilities including reviewing, drafting, and
administering documents related to probate matters,
counseling others regarding related legal issues, and
supervising support personnel. Should have 2-4 years of
probate &/or estate planning experience, exceptional
communication skills, and be a motivated self-starter.
Superior academics and experience as well as bar
membership are required. Position will last for several
months and has the potential to go permanent.
E-mail resume to lisa.lemke@counseloncall.com or fax to
(404) 942-3780.
3528 — TRUSTS & ESTATES PARALEGAL —
CONTRACT Well-respected non-profit organization is
looking for a mid-level paralegal for long-term
assignment assisting counsel with administration of
legacy and bequest gifts. Must possess a high level of
initiative and be customer service oriented. Requires at
least 2-4 years of experience working on trust and
probate matters, excellent written and verbal communication skills, and be proficient with Excel, Word, and
other computer software applications. BA/BS
and paralegal certificate also required. E-mail resume
to leigh.dowden@counseloncall.com or fax to (404)
942-3780.
DOWNTOWN OKC AV RATED FIRM seeks associate
attorney with at least 4 years experience to practice
in general civil litigation. Strong academic background
and writing skills required. Must be prepared to
immediately assume substantial responsibility. Compensation and benefits commensurate with abilities.
Send resume and salary requirements to: Box “M,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
1828
OKC LAW FIRM seeks associate with experience or
interest in commercial litigation & real estate transactions. Accepting resumes in confidence from attys
with 2-5 years experience. Must have excellent
research and writing skills. Send resume', salary
requirements, references, writing sample to Box “N,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
FIRST AMERICAN TITLE & TRUST COMPANY
with state office in OKC seeks attorney for residential
counsel position. Must have strong background in real
estate law and commercial transactions. All contacts
will be kept confidential. Compensation commensurate with experience. Great benefits package. Fax
resume and references to (405) 605-1998 or e-mail to
hchapman@firstam.com.
ASSISTANT GENERAL COUNSEL — The Oklahoma
State Regents for Higher Education (OSRHE) is seeking
a qualified individual to fill the position of Assistant
General Counsel in Oklahoma City. The incumbent will
provide legal advice and representation to the State
Regents and the Chancellor; and, under the direct supervision of the General Counsel, to all divisions of the
agency. In addition, this candidate will provide liaison to
Oklahoma Office of Administrative Rules and coordinate agency rulemaking, review and draft agency policies and procedures, review and draft agency contracts,
train employees regarding workplace issues and personnel policies, and supervise the agency staff having a
responsibility for student loan collection and bankruptcy litigation and Administrative Wage Garnishment,
with respect to the Oklahoma Guaranteed Student Loan
Program. Minimum qualifications: An attorney licensed
to practice in Oklahoma, with minimum of seven (7)
years of experience. The candidate must be a detail-oriented person with a strong academic record and good
research, writing and oral presentation skills. An ability to effectively communicate and professionally interact
with agency staff, higher education institutions, and
state and federal agencies, is essential. For a full description of duties, requirements and instructions to apply,
see “OSRHE Job Opportunity Announcements” at:
www.okhighered.org. EOE
Vol. 77 — No. 17 — 6/10/2006
POSITIONS AVAILABLE
CLASSIFIED INFORMATION
AV RATED OKC/TULSA insurance defense firm
seeks associate with 1 to 5 years experience for OKC
office. Personal injury/insurance defense experience
helpful. Must have strong academic record, writing
skills and ability to work independently. Salary and
benefits commensurate with experience. Send resume
to Box “S,” Oklahoma Bar Association, P.O. Box 53036,
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forwarding of replies. Blind box word count must
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of times to be published to:
Melissa Brown
Oklahoma Bar Association
P.O. Box 53036
Oklahoma City, OK 73152
Publication and contents of any advertisement is not to
be deemed an endorsement of the views expressed
therein, nor shall the publication of any advertisement
be considered an endorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory.
*TIMESLIPS – PART-TIME* Need person to do
monthlies, perhaps after hours. Email Requirements/
Availability to Amy@thinkresults.us
BOOKS
THE LAWBOOK EXCHANGE, LTD. Buys, sells and
appraises all major law book sets. Also antiquarian,
scholarly. Reprints of legal classics. Catalogues
issued in print and online MasterCard, Visa
and AmEx. (800) 422-6686; fax: (732) 382-1887;
www.lawbookexchange.com.
n OBA Rules of Professional Conduct
Committee has engaged in a comprehensive
review of the Oklahoma Rules of
Professional Conduct. This project was prompted
by extensive updates to the ABA’s Model Rules of
Professional Conduct. The committee has
adopted and recommended changes to
Oklahoma’s current rules and encourages public
comment either by e-mail or in writing. You
may submit any written commentary to the OBA,
P.O. Box 53036, Oklahoma City, OK 73152 or by
e-mail to ginah@okbar.org. View the proposed
rules at www.okbar.org/ethics/ORPC.htm.
A
RULES OF
PROFESSIONAL
CONDUCT
Vol. 77 — No. 17 — 6/10/2006
The OBA Board of Governors intends to
review the committee’s recommendations during
its 2006 term. Public hearings on the proposed
rule changes will be scheduled for summer 2006.
Recommended changes will then be submitted to
the House of Delegates with final approval the
province of the Oklahoma Supreme Court.
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Vol. 77 — No. 17 — 6/10/2006
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Vol. 77 — No. 17 — 6/10/2006

June 10 - Oklahoma Bar Association

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