http://www.okbar.org/obj/pdf/2010/OBJ2010Mar20 by Oklahoma Bar Association

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OFFICERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Lou Ann Moudy, Henryetta David A. Poarch, Norman Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City James T. Stuart, Shawnee Molly Aspan, Tulsa, Chairperson, OBA/Young Lawyers Division

BAR Center Staff

John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Beverly S. Petry, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators

events Calendar MARCH 2010 24

APRIL 2010

Nina Anderson, Manni Arzola, Debbie Brink, Melissa Brown, Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough

EDITORIAL BOARD

Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: P. Scott Buhlinger, Bartlesville; Dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily Duensing, Tulsa; Thomas E. Kennedy, Enid; Pandee Ramirez, Okmulgee; James T. Stuart, Shawnee; Leslie D. Taylor, Oklahoma City; January Windrix, Poteau NOTICE of change of address (which must be in writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items should be sent to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. Oklahoma Bar Association (405) 416-7000 Toll Free (800) 522-8065 FAX (405) 416-7001 Continuing Legal Education (405) 416-7006 Ethics Counsel (405) 416-7055 General Counsel (405) 416-7007 Law-related Education (405) 416-7005 Lawyers Helping Lawyers (800) 364-7886 Mgmt. Assistance Program (405) 416-7008 Mandatory CLE (405) 416-7009 OBJ & Communications (405) 416-7004 Board of Bar Examiners (405) 416-7075 Oklahoma Bar Foundation (405) 416-7070

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OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Sharisse O’Carroll (918) 584-4192 OBA Leadership Academy; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Heidi McComb (405) 416-7027 OBA Strategic Planning Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Deborah Ann Reheard (918) 689-9281 OBA Board of Governors Meeting; Weatherford, Oklahoma; Contact: John Morris Williams (405) 416-7000 OBA Leadership Academy; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Heidi McComb (405) 416-7027 Oklahoma Bar Foundation Technology and Communications Committee Meeting; 12:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 OBA Young Lawyers Division Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Molly Aspan (918) 594-0595

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OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact: H. Terrell Monks (405) 733-8686 Oklahoma Bar Foundation Meeting; 12:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 OBA Law-related Education Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack G. Clark (405) 232-4271 OBA Women in Law Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Renee DeMoss (918) 595-4800 OBA Diversity Committee Meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Marvin Lizama (918) 742-2021

For more events go to www.okbar.org/news/calendar.htm The Oklahoma Bar Association’s official Web site:

www.okbar.org

THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2010 2008 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

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table of

contents March 20, 2010 • Vol. 81

• No. 8

page 675 678 681 717 754 787

Events Calendar Index to Court Opinions Supreme Court Opinions Court of Criminal Appeals Opinions Court of Civil Appeals Opinions Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2010 OK 28 Order for the Administrative Reinstatement of Certified and Licensed Shorthand Reporters for Failure to Report Continuing Education for Calendar Year 2009 S.C.A.D. No. 2010-10........................................................................................................................... 6 8 1 STATE OF OKLAHOMA, ex rel. OKLAHOMA TAX COMMISSION, Plaintiff/Appellant, v. SUN COMPANY, INC. (R&M), a corporation, Defendant/Appellee. No. 103,776............... 6 8 1 2010 OK 18 In the Matter of the Reinstatement of Ian Steedman to Membership in the Oklahoma Bar Association and to the Roll of Attorneys SCBD No. 5541.................................. 6 8 1 2010 OK 20 Order for the Administrative Reinstatement of Certified and Licensed Shorthand Reporters for Failure to Report Continuing Education for Calendar Year 2009.............. 681 2010 OK 3 MARK ROGERS, TERRY O’RORKE and WILLIAM WILSON, on behalf of themselves and all others similarly situated Plaintiffs v. QUIKTRIP CORPORATION, LOVE’S TRAVEL STOPS & COUNTRY STORES, INC., AND 7-ELEVEN, L.L.C. Defendants No. 106,684....................................................................................................................... 6 8 2 2010 OK 23 In the Matter of the Reinstatement of Gerald Francis Meek, to Membership in the Oklahoma Bar Association and the Roll of Attorneys. SCBD #5534................................ 6 8 2 2010 OK 14 DON W. TUCKER and LARRY B. JOHNSON, Plaintiffs/Appellants, v. NEW DOMINION, L.L.C., Defendant/Appellee. No. 106,322............................................................... 6 8 3 2010 OK 27 IN THE MATTER OF THE REINSTATEMENT OF: EDWARD LEE MUNSON, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS. SCBD No. 5540......................................................................................... 6 8 7 2010 OK 19 STATE OF OKLAHOMA ex rel. EMILY REDMAN, District Attorney, Plaintiff/Appellee, v. $122.44; DIGITAL SCALES; CABELA’S SAFE SN 2020515; REMINGTON 12 GA SHOTGUN SN N976879V; SEARS AND ROEBUCK MODEL 20-12 GA SHOTGUN SN UNKNOWN; MOSSBERG 12 GA SHOTGUN SN MV20207K; NEW HAVEN MOSSBERG 22 MAG SN 1126464; JC HIGGINS SEARS AND ROEBUCK MODEL 583.1 12 GA SHOTGUN SN UNKNOWN; WINCHESTER MODEL 67 22 RIFLE SN UNKNOWN; RUGER 12-22 RIFLE SN 29010763; BROWNING BELGIAN MADE 22 RIFLE SN 3174459; ROSSI 17 HMR CAL SN AC015402; ROMANIAN 762X39 SN 1412992003; RUGER 10-22 SN 23496522; RUGER MINI 14 SN 18050780; INTERARMS 44 MAG SN M035407; WINCHESTER 30-30 SN USA 19236; CRICKET 22 CAL SN 131451; SMITH and WESSON 50 CAL PISTOL SN CJDO940; COLT 22 CAL PISTOL SN PH41279; 2 HOLSTERS 7 GUN MAGAZINES; 2 KNIVES; 7 POCKET KNIVES; 1 BUSHNELL SCOPE; AR 15 CARRY HANDLE; SLING; AND STRAIGHT RAZOR, Defendants, and JOSEPH HARRELL, JR., Respondent/Appellant. No. 106,292................................................................................................................................... 6 9 5 2010 OK 21 NOVA HEALTH SYSTEMS, D/B/A/ REPRODUCTIVE SERVICES, on behalf of itself, its staff, and its patients, Plaintiff/Appellee, v. (1) W.A. DREW EDMONDSON, in his official capacity as Attorney General of Oklahoma; (2) TIM HARRIS, in his official capacity as Tulsa County District Attorney; (3) TERRY L. CLINE, in his official capacity as Executive Director of the Oklahoma Board of Medical Licensure and Supervision; and (4) CHERYL A. VAUGHT, in her official capacity as President of the Oklahoma State Board of Osteopathic Examiners, Defendants/Appellants. No. 107,592.................................................................................................................................................... 6 9 8

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2010 OK 25 STATE OF OKLAHOMA, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. RHETT HENRY WILBURN, Respondent. SCBD No. 5436...................................... 7 0 0 2010 OK 24 PATRICIA L. PARHAM, Petitioner/Appellee, v. STEVEN M. PARHAM, Respondent/Appellant. No. 107,281................................................................................................. 7 0 2 2010 OK 26 DARLA K. PRICE, Individually, and as the Surviving Spouse of PERRY KEITH PRICE, Deceased, Plaintiff/Appellant, v. CATHRYN L. HOWARD, CYNTHIA LYNN HENNING and CHARLES J. HOWARD, JR., Independent Co-Executors of the Estate of CHARLES JAMES HOWARD, M.D., Deceased; The Estate of CHARLES JAMES HOWARD, M.D., Deceased; CATHY ANN OLSEN, Independent Administratrix of the Estate of JON PETER OLSEN, Deceased; The Estate of JON PETER OLSEN, Deceased; DAVID HOBZA, and SERVICENTER, INC., Defendants/ Appellees. No. 105,943........................................................................................................................ 7 0 6 2010 OK 22 STATE OF OKLAHOMA, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. KATHERINE T. WALLER, Respondent. SCBD No. 5564.......................................... 7 1 4

Index To Opinions Of Court of Criminal Appeals 2010 OK CR 6 KENDRICK ANTONIO SIMPSON, Appellant, v. STATE OF OKLAHOMA, Appellee. Case No. D 2007-1055........................................................................................................ 7 1 7 2010 OK CR 5 PHILLIP ANTHONY SUMMERS, Appellant v. STATE OF OKLAHOMA, Appellee. Case No. D-2008-313.......................................................................................................... 7 2 9

Index To Opinions Of Court of Civil Appeals 2010 OK CIV APP 7 FFE TRANSPORTATION SERVICES, INC., and KARON K. MEDLIN, Plaintiffs/Appellees, v. PILOT TRAVEL CENTERS, L.L.C., Defendant/Appellant. Case No. 105,604.......................................................................................................................... 7 5 4 2010 OK CIV APP 8 JASMINE PORTER, Plaintiff/Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/Appellee. Case No. 106,673............... 7 5 6 2010 OK CIV APP 18 WILLCO ENTERPRISES, LLC, Plaintiff/Appellant, v. CONCHITA L. WOODRUFF and VICTORE INSURANCE COMPANY, Defendant/Appellee, CONCHITA L. WOODRUFF, Counter-Claimant/Third-Party Plaintiff/Plaintiff/ Appellee, v. WILLCO ENTERPRISES, LLC and DONNY WILLIAMSON, CounterDefendants/Third-Party Defendants/Appellants. Case No. 106,237......................................... 7 5 8 2010 OK CIV APP 19 ROBIN L. GALARZA, Petitioner/Appellant, v. LOUIS A. GALARZA, Respondent/Appellee. Case No. 106,238................................................................................. 7 6 6 2010 OK CIV APP 20 JONATHON TAYLOR, Individually, Plaintiff/Appellant, v. DEBORAH L. GLENN, Individually, and DEBBIE GLENN ENTERPRISES, L.L.C., an Oklahoma Limited Liability Company, Defendants/Appellees, and Everett Chambers, II, Individually; Everett Chambers, I, Individually; and Brenda Chambers, Defendants. Case No. 106,654.................................................................................................................................. 7 7 0

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2010 OK CIV APP 22 DONALD P. GRIFFITH, Petitioner, v. UPS, INC.; LIBERTY INSURANCE CORP.; and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 106,706............................................................................................................................................ 7 7 1 2010 OK CIV APP 21 SHERRY HAMBY, Petitioner, v. CHEROKEE NATION CASINOS, and the WORKERS’ COMPENSATION COURT, Respondents. Case No. 106,660................... 7 7 3 2010 OK CIV APP 23 O’BRIEN OIL, L.L.C., Plaintiff/Appellee, v. JOHN W. NORMAN; CECILIA A. NORMAN; RANDALL A. MOCK, TRUSTEE OF THE NORMAN CHILDREN 1985 IRREVOCABLE TRUST, Defendants/Appellants. Case No. 107,001.................... 7 7 5 2010 OK CIV APP 24 In the Matter of the Estates of Bartley Joh David McLean and Beulah Simpson McLean, same person as Beulah S. McClean, both deceased: JOHN L. BRANSON, JEFFREY BRANSON, and JIMMIE KAY WILLIAMS, Appellants, v. JAEL McLEAN, MARCUS TYE McLEAN, and JAIME CAROL McLEAN, Appellees. Case No. 106,200............................................................................................................................................ 7 7 9 2010 OK CIV APP 25 JIMMY BAKER, Petitioner, v. DARR EQUIPMENT CO., and CONTINENTAL CASUALTY CO., Insurance Carrier, Respondents. Case No. 107,149................... 7 8 4

Nicole Garnett

Professor of Law University of Notre Dame Law School

“Restoring Lost Connections: Land Use, Policing, and Urban Vitality”

THURSDAY, APRIL 8, 2010 5 p.m. Public Lecture Homsey Family Moot Courtroom Sarkeys Law Center N.W. 23rd and Kentucky, Okla. City, OK. 73106 Free and open to the public. For more information call: (405) 208-5335 | http://law.okcu.edu/

OKLAHOMA C ITY UNIVERSITY S CHOOL OF L AW

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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)

2010 OK 28 Order for the Administrative Reinstatement of Certified and Licensed Shorthand Reporters for Failure to Report Continuing Education for Calendar Year 2009 S.C.A.D. No. 2010-10. March 12, 2010

APPEALS VACATED; JUDGMENT AFFIRMED In all other respects the court’s opinion remains unchanged. DONE BY ORDER OF THE SUPREME COURT THIS 15th DAY OF MARCH, 2010.

ORDER OF REINSTATEMENT The State Board of Examiners of Certified Shorthand Reporters has requested the reinstatement of the following persons as having now completed all requirements for reporting their annual Continuing Education for Calendar Year 2009. The Court orders that the following persons are hereby reinstated from the suspension earlier imposed by S.C.A.D. No. 2010-10: REPORTER

REINSTATEMENT EFFECTIVE

Wendy Ragan-Sugrue

March 4, 2010

Cynthia Donald

March 10, 2010

Myrna Parrish

March 10, 2010

Lori Barnett

March 10, 2010

Done on this 12th day of March, 2010. /s/ Steven W. Taylor Vice Chief Justice 2010 OK 11 STATE OF OKLAHOMA, ex rel. OKLAHOMA TAX COMMISSION, Plaintiff/Appellant, v. SUN COMPANY, INC. (R&M), a corporation, Defendant/Appellee. No. 103,776. March 15, 2010 CORRECTION ORDER This court’s opinion, promulgated February 10, 2009, in the above styled and numbered cause is hereby corrected. On page 5, at the bottom of ¶12, the word, “AFFIRMED” is stricken from the opinion and replaced with the following: CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL

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/s/ Steven W. Taylor VICE CHIEF JUSTICE 2010 OK 18 In the Matter of the Reinstatement of Ian Steedman to Membership in the Oklahoma Bar Association and to the Roll of Attorneys SCBD No. 5541. February 23, 2010 CORRECTION ORDER The above styled and numbered cause is hereby corrected to reflect the citation to the Supreme Court World Wide Web as “2010 OK 18.” DONE BY ORDER OF THE SUPREME COURT THE 23rd DAY OF FEBRUARY, 2010. /s/ James E. Edmondson CHIEF JUSTICE 2010 OK 20 Order for the Administrative Reinstatement of Certified and Licensed Shorthand Reporters for Failure to Report Continuing Education for Calendar Year 2009 S.C.A.D. No. 2010-10. February 26, 2010 ORDER OF REINSTATEMENT The State Board of Examiners of Certified Shorthand Reporters has requested the reinstatement of the following persons as having now completed all requirements for reporting their annual Continuing Education for Calendar Year 2009. The Court orders that the following persons are hereby reinstated from the suspension earlier imposed by S.C.A.D. No. 2010-10: REPORTER Laura Robertson

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Jan Guelda

February 19, 2010

***

Jill Shaw

February 19, 2010

Lisa Carpenter

February 22, 2010

In all other respects the 19 January 2010 opinion shall remain unchanged.

Susan Stotts

February 22, 2010

Nan Dickerson

February 22, 2010

Valerie Stallings

February 22, 2010

Barbara Ross

February 22, 2010

Done on this 26th day of February, 2010. /s/ James E. Edmondson CHIEF JUSTICE 2010 OK 3 MARK ROGERS, TERRY O’RORKE and WILLIAM WILSON, on behalf of themselves and all others similarly situated Plaintiffs v. QUIKTRIP CORPORATION, LOVE’S TRAVEL STOPS & COUNTRY STORES, INC., AND 7-ELEVEN, L.L.C. Defendants No. 106,684. March 8, 2010 ORDER REVISING OPINION The court’s opinion, filed herein on 19 January 2010, is amended by removing from footnote 9 some of the citations found therein. The text of footnote 9 is changed to provide as follows: 9. A-Plus Janitorial & Carpet Cleaning v. The Employers’ Workers’ Compensation Ass’n, 1997 OK 37, ¶9, 936 P.2d 916, 922; National Diversified Business Services, Inc. v. Corporate Financial Opportunities, Inc., 1997 OK 36, ¶9, 946 P.2d 662, 665; Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶3, 913 P.2d 1318, 1320; Washington, supra note 6, at ¶7, at 361. The terms of 12 O.S.2001 § 2012(B) provide in pertinent part: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or thirdparty claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: *** 6. Failure to state a claim upon which relief can be granted; 682

DONE BY ORDER OF THE SUPREME COURT THIS 8th DAY OF MARCH, 2010. /s/ MARIAN P. OPALA JUSTICE 2010 OK 23 In the Matter of the Reinstatement of Gerald Francis Meek, to Membership in the Oklahoma Bar Association and the Roll of Attorneys. SCBD #5534. March 9, 2010 ORIGINAL PROCEEDING FOR RULE 11 BAR REINSTATEMENT ORDER ¶1 Petitioner, Gerald Francis Meek (Meek), was admitted to the Oklahoma Bar Association (OBA) on April 20, 2001. He currently lives and practices in North Carolina. Meek is admitted to the practice of law in North Carolina1. He has continuously practiced law in North Carolina since March 1998. ¶2 Meek was administratively suspended from the OBA in 2004 for failing to pay dues and noncompliance with Mandatory Continuing Legal Education. His name was stricken from the Roll of Attorneys on September 15, 2004. On June 19, 2009, Meek petitioned this Court for reinstatement to the OBA pursuant to Rule 11.1, of the Rules Governing Disciplinary Proceedings, Okla. Stat. tit. 5, ch. 1, app. 1-A (2001). A hearing was held before the Professional Responsibility Tribunal (Tribunal) on September 3, 2009. The Tribunal, along with the OBA, jointly recommend Meek’s reinstatement. ¶3 Upon careful consideration of Meek’s petition, this Court finds that the record demonstrates by clear and convincing evidence, the following: 1) Meek has satisfied the procedural requirements for reinstatement. He has complied with the notice requirements of Rules 11.1(a) and 11.3(b), RGDP; and no objections to his reinstatement were received. 2) Meek has not filed any applications for reinstatement prior to this proceeding.

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3) Meek possesses the good moral character entitling him to be readmitted to the OBA. 4) Meek has not engaged in the unauthorized practice of law in the State of Oklahoma during his suspension. 5) Meek has remained abreast of the current legal developments and possesses the competency and learning in the law required for reinstatement to the OBA. 6) Meek has established his good moral character which would entitle him to be reinstated to the OBA. 7) The OBA has incurred costs in the amount of $821.22 for the investigation and processing of the application in this case. ¶4 IT IS THEREFORE ORDERED, that Gerald F. Meek be reinstated to membership in the OBA and his name be reinstated to the Roll of Attorneys licensed to practice law in the State of Oklahoma. ¶5 IT IS FURTHER ORDERED that such reinstatement is conditioned upon Meek’s payment to the OBA for the costs of this proceeding in the amount of $821.22. The $275.00 bar dues that Meek paid in anticipation of being reinstated in 2009 shall be applied to his 2010 dues now due. These amounts are ORDERED to be paid within ninety days from the date this Order is filed with the Clerk of this Court. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 8th day of March, 2010. /s/ James E. Edmondson CHIEF JUSTICE ALL JUSTICES CONCUR. 1. He was previously admitted to practice in South Carolina, Georgia, Texas, and Arkansas but was administratively suspended for nonpayment of dues.

2010 OK 14 DON W. TUCKER and LARRY B. JOHNSON, Plaintiffs/Appellants, v. NEW DOMINION, L.L.C., Defendant/Appellee. No. 106,322. February 23, 2010 On Writ of Certiorari to the Court of Civil Appeals, Division I ¶0 Plaintiffs brought a quiet title suit in which they asked for an accounting against Vol. 81 — No. 8 — 3/20/2010

the defendant who had obtained an order from the Oklahoma Corporation Commission pooling the plaintiffs’ mineral interest. The plaintiffs alleged that their mineral interest had not been brought within the Commission’s jurisdiction because publication notice showed the name of Olinka Hardy instead of the name Olinka Hrdy, the record owner at the time. Both parties moved for summary judgment. The district court rendered judgment in the defendant’s favor. The plaintiffs appealed, and the Court of Civil Appeals reversed and remanded the case. The defendant sought review in this Court, and we granted the writ of certiorari. COURT OF CIVIL APPEALS’ OPINION VACATED; DISTRICT COURT’S JUDGMENT AFFIRMED; CAUSE REMANDED. Charles B. Davis, Norman, Oklahoma, for the appellants. Fred M. Buxton, Tulsa, Oklahoma, and Elizabeth C. Nichols, Edmond, Oklahoma, for appellee. TAYLOR, V.C.J. ¶1 The question presented is whether, under the circumstances, the misspelling of the name Olinka Hrdy as Olinka Hardy in the publication notices and other documents filed in an Oklahoma Corporation Commission proceeding having as its purpose the pooling of mineral interests renders the Commission’s pooling order invalid as to Olinka Hrdy for lack of due process. We answer in the negative. I. FACTS ¶2 Olinka Hrdy was the owner of a fractional mineral estate in property described as the SE/4 of Section 9, T11N, R6E, Pottawatomie County, Oklahoma (subject property). Ms. Hrdy died in 1987. This mineral estate was not included in the final probate order, leaving Ms. Hrdy as the record owner and leaving the probate order unindexed against the subject property in the Pottawatomie County clerk’s office.1 ¶3 On May 7, 2004, New Dominion, L.L.C. (New Dominion) filed an application with the Oklahoma Corporation Commission (Commission) seeking to pool the mineral interests in the subject property. New Dominion attempted to mail notice to Ms. Hrdy at a post office box in Prague, Oklahoma, but the notice was not

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deliverable. Thereafter, notice was given by publication. None of the pleadings and notices filed with the Commission nor the publication notices named Olinka Hrdy as having in interest in the property. Rather, they named Olinka Hardy. The Commission issued a pooling order requiring the mineral owners to elect within twenty days to either (1) participate, (2) not participate and receive a 3/16 royalty and $50.00 per acre bonus, or (3) not participate and receive a 1/8 royalty and $60.00 per acre bonus. A mineral owner not making an election was deemed to have chosen option three, 1/8 royalty interest and $60.00 per acre bonus. No election was made on behalf of Olinka Hrdy. New Dominion completed the Noel No. 1-9 on the property. ¶4 On March 28, 2007, the district court, sitting in probate, issued an order nunc pro tunc awarding Ms. Hrdy’s mineral interest to Larry B. Johnson. However, on March 21, 2007, Johnson had entered into an oil and gas lease with Don W. Tucker for 3/16 royalty. The lease was filed of record on March 23, 2007. On April 24, 2007, Tucker wrote New Dominion seeking to participate in the Noel No. 1-9, asserting that Ms. Hrdy’s interested had not been pooled. ¶5 When New Dominion refused to acknowledge that Tucker was entitled to participate in the Noel No. 1-9, the plaintiffs filed a quiet title suit in the District Court of Pottawatomie County and asked for an accounting and recovery of all unpaid royalties with interest as a participant in the well. New Dominion filed a motion to dismiss, arguing that the suit was an improper collateral attack on the Commission’s pooling order. The district court granted the motion to dismiss. The defendants appealed (Appeal No. 105,052), and the Court of Civil Appeals treated the motion to dismiss as a motion for summary judgment and reversed the district court’s order. Tucker v. New Dominion, L.L.C., 2008 OK CIV APP 42, 182 P.3d 169. Finding that the suit was one to resolve a dispute over private rights rather than public rights, the Court of Civil Appeals determined that the suit was properly filed in the district court. Id. at ¶¶ 7-8, 182 P.3d at 171. New Dominion filed a petition for writ of certiorari, which this Court denied. ¶6 Upon remand to the district court, New Dominion filed an answer and counterclaim in which New Dominion asked the court to “declare the rights of the parties to receive royalties in the specific formations pooled” by the 684

Commission.2 Thereafter, New Dominion filed a motion for summary judgment, arguing that Olinka Hrdy’s mineral interest had been force pooled by the Commission’s order, asking for a declaration that the publication notice to “Olinka Hardy” was sufficient, and asking the district court for an order that the plaintiffs were subject to the pooling order. New Dominion urged that publication notice naming Olinka Hardy was effective as notice to Olinka Hrdy under the doctrine of idem sonans, literally “having the same sound.” New Dominion continued that, because Olinka Hrdy received sufficient notice and no election was received on her behalf, she or her successors in interest were deemed to have opted for the bonus and 1/8 royalty interest under the terms of the pooling order. ¶7 The plaintiffs responded to New Dominion’s motion for summary judgment and filed their own motion for summary judgment. The plaintiffs took the position that the doctrine of idem sonans was not applicable because (1) no one appeared on behalf of Olinka Hrdy before the Commission and no one was actually served on her behalf and (2) New Dominion knew the correct spelling of Hrdy, failed to use the correct spelling, and did not correct the error. The plaintiffs urged that Olinka Hrdy did not have sufficient notice, the Commission did not have jurisdiction to pool her interests, and, thus, her interest, now the plaintiffs’, was not subject to the Commission’s pooling order. ¶8 The district court granted summary judgment in New Dominion’s favor and found that New Dominion had properly served Olinka Hrdy’s interest by publication under the doctrine of idem sonans. The district court also found that “Johnson, as heir of Olinka Hrdy’s interest, and Tucker, as Johnson’s lessee, are subject” to the Commission’s pooling order. The district court concluded that New Dominion was entitled to judgment on the plaintiffs’ claim for quiet title to the extent that the plaintiffs asserted rights inconsistent with the pooling order. ¶9 The plaintiffs appealed the district court’s order, and this order is the one presently before this Court. However, the appeal was assigned to the Court of Civil Appeals for disposition. The Court of Civil Appeals found that New Dominion did not meet its burden of submitting evidentiary material to establish its assertion that the pronunciation of “Hrdy” and “Hardy” sound substantially the same and to

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establish other factors supporting the application of the doctrine of idem sonans. The Court of Civil Appeals reversed the order granting summary judgment and remanded the case for further proceedings. ¶10 New Dominion filed its petition for writ of certiorari. In its petition, New Dominion argued that the facts at issue relating to the factors of idem sonans are so obvious and selfevident that this Court should take judicial notice of them. This Court granted certiorari. II. SUMMARY JUDGMENT AND STANDARD OF REVIEW ¶11 Under Rule 13(a) of the Rules of District Courts, 12 O.S.2001, ch. 2, app., a party may move for summary judgment or summary disposition of any issue when the evidentiary materials filed in support of the motion show that there is no genuine issue of any material fact. The moving party must support the motion by attaching and referencing evidentiary materials supporting the party’s statement of undisputed facts. Id. The opposing party must state the material facts which the party contends are disputed and attach supporting evidentiary materials. Id. The court shall grant judgment to one of the parties if it appears that there is no substantial controversy as to any material fact and that one party is entitled to judgment as a matter of law. Id. at Rule 13(e). ¶12 Summary judgment settles only questions of law. Rox Petrol., L.L.C. v. New Dominion, L.L.C., 2008 OK 13, ¶ 2, 84 P.3d 502, 504. We review rulings on issues of law by a de novo standard pursuant to the plenary power of the appellate courts without deference to the trial court. Glasco v. State ex rel. Okla. Dept. of Corrections, 2008 OK 65, ¶ 8, 188 P.3d 177, 181. Thus, summary judgments are reviewed de novo. Id. III. ANALYSIS ¶13 The Commission when issuing pooling orders is functioning in an adjudicatory capacity. See Harry R. Carlile Trust v. Cotton Petroleum Corp., 1986 OK 16, ¶ 8, 732 P.2d 438, 441-442. The Commission’s adjudicatory function is comparable to a court’s. Id. ¶ 9, 732 P.2d at 442. Constitutional due process requirements governing notice apply to Commission adjudicatory proceedings in the same force and quality as to judicial proceedings. Id. Vol. 81 — No. 8 — 3/20/2010

¶14 Before a person’s interest can be adversely affected by a judicial process or, as in this case, a Commission adjudicatory proceeding, the Fourteenth Amendment to the United States Constitution and Article 2, section 7 of the Oklahoma Constitution3 require notice and an opportunity to be heard. PFL Life Ins. Co. v. Franklin, 1998 OK 32, ¶ 9, 958 P.2d 156, 162. Notice is jurisdictional and an indispensable element of due process, Shamblin v. Beasley, 1998 OK 88, ¶ 12, 967 P.2d 1200, 1209, and is the mechanism for affording the opportunity to be heard. Grannis v. Ordean, 234 U.S. 385, 394 (1914). Due process “requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections.” Shamblin, 1998 OK 88, ¶ 12, 967 P.2d at 1209; Booth v. McKnight, 2003 OK 49, ¶ 20, 70 P.3d 855, 862. “The ‘due process of law’ clause, however, does not impose an unattainable standard of accuracy.” Grannis, 234 U.S. at 395. The test in determining if the requirements of due process have been met is whether, under all the circumstances, the person being summoned would have recognized that she was being haled into court. Collingsworth v. Hutchison, 1939 OK 17, ¶ 7, 90 P.2d 416, 418. ¶15 When notice is by publication, as it is here, the general rule tends toward strictness. Grannis, 234 U.S, at 395. However, even with names exact accuracy is not required, and the well-established doctrine of idem sonans is a recognition of this. Id. In employing the doctrine of idem sonans,4 the entire name is taken into account. See Maine v. Edmonds, 1916 OK 1063, 160 P. 483. If two names are pronounced similarly in the English language, a variance in their spelling is immaterial. Id. at ¶ 4, 160 P. at 484-485. We have found the following names were idem sonans: (1) Hutchison and Hutchinson, Collingsworth, 1939 OK 17 at ¶ 0, 90 P.2d at 416 (Syllabus by the Court), (2) Crittenden Smith and Crittenden & Smith, King v. Slepka, 1944 OK 138, ¶ 0, 146 P.2d 1002, 1003 (Syllabus No. 5 by the Court); and Edmonds and Edmunds, Maine v. Edmonds, 1916 OK 1063 at ¶ 4, 160 P. at 485. ¶16 The combination of the letters “hrdy” is unknown in the English language,5 because English words have a vowel between the “h” and the “r.” See American Heritage Dictionary 595, 607, 613, 622, 628 (2nd coll. ed. 1976). So, “Hrdy” would be pronounced with a vowel

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between the “h” and the “r.” Thus, Englishspeaking persons would pronounce Hrdy as hardy, phonetically spelled as här´dē; as herdy, hirdy, or hurdy, phonetically spelled as hûr´dē; or as hordy, phonetically spelled hôr´dē. See Thorleif Larsen & Francis C. Walker, Pronunciation: A Practical Guide to American Standards 73, 86 (Oxford Univ. Press 1931); see American Heritage Dictionary at 595, 607, 613, 622, 628. The similarity in the sound of Hrdy and Hardy, coupled with the unusual first name of Olinka, make “Olinka Hrdy” and “Olinka Hardy” sound sufficiently similar to be idem sonans. ¶17 The doctrine of idem sonans is only one test under which we examine the circumstances here for compliance with due process. In answering the question whether, under all the circumstances, the person being haled into court would be misled into thinking that someone else was being summoned, Collingsworth, 1939 OK 17 at ¶ 7, 90 P.2d at 418; see Grannis, 234 U.S. at 397, we also consider other factors. ¶18 In Collingsworth v. Hutchison, 1939 OK 17, 90 P.2d 416, a quiet title action was brought based on a tax sale with the service by publication containing the name “O. F. Hutchinson.” The issue was whether the judgment rendered in the tax sale proceedings was binding on “O.F. Hutchison” and his heirs. This Court found that the difference in sound of “O.F. Hutchinson” and “O. F. Hutchison” would be scarcely perceptible by the generality of mankind. Id. at ¶ 6, 90 P.2d at 417. This Court then noted that the names appear substantially the same in print but that the entire notice should be considered. Taking notice that the average person examining the notice would not fail to observe the land’s description, this Court found that, given the similarity in the look of the names coupled with the legal description, the plaintiff would not be misled by the misspelling of the name. Id. at ¶ 5, 90 P.2d at 417. ¶19 In Grannis v. Ordean, 234 U.S. 385 (1914), the last name of Geilfuss was misspelled as Guilfuss in the notice published in the newspaper. In determining whether the notice was sufficient constructive notice, the United States Supreme Court did not confine itself to the tests of whether the names sounded and looked similar but adopted “additional tests as may be available in view of what is disclosed by the record.” Id. at 397. One such test was whether “any person knowing him, and knowing the correct spelling of his name, and having reason 686

to acquaint him with the contents of a notice of this character if supposed to be intended for him, would probably realize for whom such notice was intended, notwithstanding the name was spelled ‘Guilfuss.’” Id. at 398. ¶20 Both Grannis and Collingsworth considered that the actions were in rem and that the notices described the land at issue. Both courts looked at the auditory and visual similarities as well as asking whether a person for whom the notice was intended would be sufficiently warned that the notice affected the person’s interest in the land. We find the tests employed in the Grannis and Collingsworth opinions are applicable here. ¶21 We note the similarity in the sounds of “Olinka Hrdy” and “Olinka Hardy,” but this is not the only test we employ. Here “Olinka Hrdy” and “Olinka Hardy” are visually similar. The notice here contains a description of the subject property which would alert the owner of the proceedings against the property. But ultimately our decision rests, not only in the auditory and visual similarities in the names but also, on the fact that neither Ms. Hrdy nor the plaintiffs would have been mislead by the misspelling and would have recognized that Ms. Hrdy’s property could be affected by the Commission proceedings. The publication notice here met the requirements of due process. Ms. Hrdy and the plaintiffs had constructive notice of the Commission proceedings and, thus, were bound by the Commission’s pooling order. Thus, the plaintiffs’ mineral interests in the subject property were not superior to the interest claimed by New Dominion. IV. CONCLUSION ¶22 We conclude that notwithstanding the misspelling of Olinka Hrdy’s name as Olinka Hardy in the publication notice and in the documents filed with the Commission in the pooling proceeding, the plaintiffs, as Olinka Hrdy’s successors in interest, are bound by the Commission’s forced pooling order, and the plaintiffs’ mineral interests are secondary to the rights extended to New Dominion by the forced pooling order. ¶23 The Court of Civil Appeals’ opinion is vacated. The district court’s judgment in New Dominion’s favor is affirmed, and the cause is remanded to the district court.6

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COURT OF CIVIL APPEALS’ OPINION VACATED; DISTRICT COURT’S JUDGMENT AFFIRMED; CAUSE REMANDED. ALL JUSTICES CONCUR. 1. Larry B. Johnson, the administrator of Ms. Hrdy’s estate, failed to include the subject property interest and another property in the estate’s final accounting. 2. District court power over a Commission order is limited to ascertaining whether the order is facially void. Chancellor v. Tenneco Oil Co., 1982 OK 122, ¶ 16, 653P.2d 204, 207. However, a mineral interest owner deprived of participation for lack of proper notice who seeks an order allowing the owner to participate must do so with the Commission. Id.; Nilsen v. Ports of Call Oil Co., 1985 OK 104, n. 5; 711 P.2d 98, 105 n. 5 (Opala, J., concurring in judgment). 3. The definitional sweep of Oklahoma’s due process clause, Okla. Const. art. 2, § 7, is coextensive with the Fourteenth Amendment to the United States Constitution. DuLaney v. Okla. State Dept. of Health, 1993 OK 113, n. 33, 868 P.2d 676, 685 n. 33. 4. We can take judicial notice of adjudicative facts within the common knowledge or “[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” 12 O.S.2001, § 2202(B); Bd. of Education of Independent Sch. Dist. No. 20 of Craig County v. Adams, 1970 OK 23, ¶ 11, 465 P.2d 464, 467. In this regard, this Court can take judicial notice of the sounds of words, including names, see Grannis, 234 U.S. at 398; Collingsworth, 1939 OK 17 at ¶ 7, 90 P.2d at 418; and, likewise, of phonetic spellings found in dictionaries showing the pronunciation of words and rules of pronunciation. 5. Hrdy is a Czech word meaning proud. Alois Čermák, EnglishCzech Czech-English Dictionary 634 (Saphrograph Co. 1963). The pronunciation of Hrdy in Czech is HUHR-dee. Inogolo.com, http:// inogolo.com/pronunciation/Hrdy (last visited Feb. 4, 2010). Olinka Hrdy, as pronounced in the Czech language, and Olinka Hardy are clearly idem sonans. 6. In the order granting judgment in New Dominion’s favor, the district court reserved ruling on the costs and attorney fees.

2010 OK 27 IN THE MATTER OF THE REINSTATEMENT OF: EDWARD LEE MUNSON, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS. SCBD No. 5540. March 16, 2010 PETITION FOR REINSTATEMENT ¶0 The petitioner, Edward Lee Munson (Munson/attorney), petitioned for resignation from the respondent, Oklahoma Bar Association (Bar Association), pending disciplinary proceedings following the trial panel’s recommendation that he be suspended from the practice of law for two years and one day. The recommendation arose from two counts of misappropriation of funds totaling approximately $55,000.00 and a misrepresentation to a banking institution. After the hearing, a second complaint was filed alleging the mishandling of an additional $50,000.00 and the failure to respond. We consolidated the causes and accepted the attorney’s resignation effective February 16, 1993. Approximately fourteen (14) years after his resignation, Munson filed a petition for reinstatement. Finding that the attorVol. 81 — No. 8 — 3/20/2010

ney failed to sustain his burden of proof regarding the prerequisites of reinstatement, the trial panel of the Professional Responsibility Tribunal unanimously recommended that Munson not be reinstated. Upon de novo review, we determine that reinstatement should be denied and impose $1,705.47 in costs. PETITION FOR REINSTATEMENT DENIED; PETITIONER ORDERED TO PAY COSTS OF $1,705.47. Aletia Haynes Timmons, Timmons & Associates, LLC, Oklahoma City, Oklahoma, for Petitioner. Ted D. Rossier, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Respondent. WATT, J.: ¶1 This is the attorney’s third time before this Court. Munson was suspended from the practice of law from December 12, 1988 through January 4, 1990 (Munson I)1 for two counts of misrepresentation and neglect. The Bar Association filed a complaint against the attorney in 1992. The allegations were that the attorney: 1) misrepresented the nature of business transactions to a bank inducing the institution to provide immediate funds on a check drawn on an account at another bank; and 2) presented checks totaling approximately $55,000.00 knowing that there were insufficient funds on deposit in the accounts upon which they were drawn. Following the hearings in the consolidated causes, the trial panel recommend a suspension of two years and one day. Thereafter, Munson filed an application, pursuant to Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. 1991, Ch. 1, App. 1-A,2 requesting that he be allowed to resign his membership in the Bar Association and relinquish his right to practice law. We consolidated the complaint heard by the trial panel with another complaint filed on January 8, 1993. The second complaint alleged the mishandling of an additional $50,000.00 and failure to respond. The Court approved the resignation on February 16, 1993 ordering Munson to comply with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 1991, Ch. 1, App. 1-A3 and to pay the costs of the proceeding within a reasonable time from the date of the order (Munson II).4 Today, we address Munson’s petition for reinstatement. ¶2 Upon a de novo review,5 we determine that the attorney did not present clear and convinc-

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ing evidence that, if readmitted, his conduct would conform to the high standards required of a member of the Bar Association.6 Therefore, we deny reinstatement and impose the costs of the proceeding in the amount of $1,705.47.7 Our decision is supported by evidence of the attorney’s unauthorized practice of law during his initial suspension in Munson I along with his lack of candor concerning the factors leading up to his 1993 resignation and by uncertainty concerning his competency to practice law raised by the lack of strict compliance with the rules governing suspension and reinstatement proceedings. FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS ¶3 Munson was admitted to the practice of law on August 17, 1973. Fifteen years later, we suspended the attorney for one year on two counts of misrepresentation and neglect. Just three years later, after the trial panel recommended a suspension of two years and one day, we approved Munson’s application for resignation pending disciplinary proceedings. ¶4 The transactions leading to the attorney’s resignation grew out of two consolidated complaints. SCBD No. 3840 arose from transactions involving an attempt by Munson and the Vammen family to set up an integrated farming operation. The Vammens loaned the attorney $62,000.00 in conjunction with the business venture. When the attorney was unsuccessful in getting further financing, the Vammens requested that their monies be returned. ¶5 In an attempt to pay one of the family members their portion of the funds, the attorney drew a check for $46,000.00 on his trust account when the balance on the date of the check’s issuance was $187.75. Two weeks later, the attorney again attempted to pay the same family members. At that time, while in Jay, Oklahoma, Munson represented to a bank officer of the Delaware County Bank that he had closed a real estate transaction for clients purchasing land from the Vammens. Munson advised the officer that he needed to deposit a check for $48,000.00 on a Tahlequah account to an account in the Delaware County Bank and then have a wire sent from the Jay bank to the Vammens’ bank in Texarkana for $46,000.00. Based on the officer’s prior business dealings with Munson and the representations involving the land sale, the wire transfer was approved. When the check was deposited in the Delaware County Bank, no 688

such real estate transaction had occurred and the balance in the Tahlequah bank account was in the negative. The Delaware County Bank did not receive all of its funds until after having filed suit against the attorney and engaging in collection efforts on the summary judgment entered in the cause. ¶6 Another Vammen family member sought repayment of her portion of the investment. Munson wrote a check on the Delaware County Bank trust account for $6,851.33. The check was dishonored. When the check was issued, the account contained only $956.47. ¶7 The trial panel conducted a hearing in this matter on December 11, 1992. In January of the next year, it issued a report which recommended that the attorney be suspended for a period of two years and one day. ¶8 While SCBD No. 3840 was pending, a complaint was filed in SCBD No. 3894 alleging three counts of misconduct. We consolidated this complaint with the prior one for purposes of considering the attorney’s application for resignation. The first two counts of the consolidated case involved Munson’s having taken a check for $25,972.42 from a client, Betts Gordon (Gordon), “for safe keeping.” The representation involved a probate matter. Shortly after obtaining the check, the attorney cashed the same and allegedly placed the funds in a zipper bag in an office safe. When several months passed and nothing occurred in the probate case, Gordon’s sons sought a return of the monies. They filed a complaint with the Bar Association and Munson agreed to allow a Bar Association representative to come to his office and verify that the funds were being held there. When the Bar Association investigator arrived, Munson refused to allow the representative to count the monies. Several days later, the attorney deposited $25,972.42 in Gordon’s account in Boatman’s Bank in Tulsa. Initially, the Bar Association did not receive a response to the complaint filed in the cause. Munson appeared only upon a subpoena having issued. The attorney testified that he had mailed a response to the Bar Association from Tahlequah on November 28, 1992. Nevertheless, when the Bar Association received the response, it carried an Oklahoma City postmark of December 4th. ¶9 The third count arose out of the attorney having been appointed executor in the estate of David E. Deatherage on September 19th, 1989. Evidently, the attorney took this appointment

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during the time of his suspension in Munson I.8 In May of the following year, Munson opened an account in the First State Bank of Tahlequah in the estate’s name. When the deceased’s wife contacted him about social security benefits she was receiving for her minor daughter, the attorney suggested that she leave the monies with him until he could gain some guidance from the Social Security Administration. On September 21, 1992 the wife wrote Munson a check for $22,505.37. He deposited the check into the estate account which then contained approximately $1,885.83. Four days later, a check cleared the account dated September 14th in the amount of $17,184.58. The check was made payable to one of Munson’s other clients as repayment for monies he was holding on her behalf. ¶10 The attorney filed his petition for reinstatement on August 3, 2009 supplementing it on the next day with affidavits of court clerks inadvertently left out of the original filing. The hearing on reinstatement was held before the trial panel on November 18, 2009. The trial panel issued its report on January 5, 2010 determining that Munson had not met the burden of proof for reinstatement and recommending that reinstatement be denied and costs be imposed. On the same day, the Bar Association filed an application for the assessment of costs in the amount of $1,705.47. The order setting a briefing schedule issued on January 6, 2010. Munson was given an extension to February 3rd for the filing of his brief in chief. The briefing cycle was completed on March 3, 2010 with the filing of the attorney’s supplemental answer brief. JURISDICTION, STANDARD OF REVIEW, AND BURDEN OF PROOF ¶11 It is this Court’s nondelegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of the practitioners of the law. The duty is vested solely in this department of government.9 Our determinations are made de novo.10 Although given great weight,11 neither the findings of fact of the trial panel nor its view of the evidence or the credibility of witnesses bind this Court. The recommendation is merely advisory.12 We are bound neither by its findings nor its assessments as to the weight or credibility of the evidence.13 A thorough and complete exploration of all relevant facts is mandatory in consideration of matters to regulate the practice of law and legal practitioners.14 Attorneys suspended Vol. 81 — No. 8 — 3/20/2010

for disciplinary reasons will not automatically be reinstated on a prima facie showing that the attorney has not engaged in improper conduct during the suspension period.15 ¶12 A suspension from the practice of law for a period in excess of two years is tantamount to disbarment in that the suspended lawyer must follow the same procedures for readmittance as would a disbarred counterpart.16 Before an attorney who has been disciplined for more than two years may be readmitted to the practice of law, it must be established that the lawyer’s conduct will conform to the high standards required of a member of the Oklahoma Bar. The burden is on the applicant to demonstrate by clear and convincing evidence that the prerequisites for reinstatement are satisfied.17 The applicant must present stronger proof of qualifications than one seeking first time admission.18 ¶13 Rule 11.5, Rules Governing Discipinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A requires the trial panel to make specific findings regarding whether: 1) the petitioner possesses the good moral character which would entitle him to be admitted to the Bar Association; 2) the petitioner has engaged in the unauthorized practice of law during the period of suspension; and 3) the petitioner possesses the competency and learning in the law required for admission to the practice of law in the State of Oklahoma. In addition, the Court considers the following eight factors: 1) the applicant’s present moral fitness; 2) demonstrated consciousness of the conduct’s wrongfulness and the disrepute it has brought upon the legal profession; 3) the extent of rehabilitation; 4) the original misconduct’s seriousness; 5) conduct after resignation; 6) time elapsed since the resignation; 7) the applicant’s character, maturity, and experience when suspended; and 8) present legal competence.19 Each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.20 ¶14 a. The attorney has not demonstrated the clear and convincing evidence necessary for his readmittance to the practice of law in Oklahoma. ¶15 Munson asserts that he provided clear and convincing evidence that his application for reinstatement should be granted. He contends that he substantially complied with Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A.21 The attorney insists that he filed the necessary affidavit, paid

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the costs of the proceeding, reimbursed the Client Security Fund for the one claim paid on his behalf, the bank for its losses, and that all other parties have been fully reimbursed.22 He argues that he demonstrated his good moral character, competency in the law, and that he has not engaged in the unauthorized practice of law since his 1993 resignation. ¶16 The trial panel found that Munson failed to present clear and convincing evidence of his present moral fitness to practice law and consciousness of the wrongfulness of his acts and the disrepute brought on the profession. Nevertheless, the trial panel did believe that Munson met the burden of proof on the issue of his learning and competency in the law. The Bar Association disagrees with Munson’s contention that he substantially complied with Rule 9.1, joining in the trial panel’s recommendation that the attorney has not demonstrated the clear and convincing evidence necessary to support reinstatement and requesting that we deny reinstatement and impose costs of the proceeding. We agree with these recommendations. However, unlike the trial panel, we are not persuaded that Munson met the burden of proof as it relates to his competency to practice law. Our lack of confidence in the attorney’s legal abilities arises from his failure to strictly comply with the rules governing suspension and reinstatement proceedings both in Munson I and in Munson II. ¶17 a) Munson’s reliance on his appointment in a prominent criminal case as explaining his actions in misappropriating and converting funds is unconvincing when the attorney did not rely on the criminal proceedings during the hearing leading up to his resignation in Munson II. ¶18 In 1986, two years before his initial suspension, Munson was appointed as counsel for Charles Troy Coleman in a well-publicized, high-profile, murder trial which ended in Coleman’s execution. In the reinstatement hearing, the attorney testified that his involvement in the Coleman case put him in a downward “spiral” which led to his first suspension.23 Once he was reinstated, Munson testified that he still found himself trying to make up for the “Coleman thing” but that he continued to “spiral” into a position where he felt forced to misuse his client’s funds24 going so far as to describe his actions as “robbing Peter to pay Paul.”25 690

¶19 Misappropriation is the most serious infraction occurring with the handling of trust monies.26 There is no question that the attorney misappropriated client funds. What is puzzling is Munson’s after-the-fact reliance on his representation of a criminal defendant to demonstrate how his money problems began and intensified. In Munson’s attempt to defend his actions and avoid discipline in Munson II, the cause in which he resigned and from which he now seeks reinstatement, he never once related any of his problems to the defense of Coleman in the hearing before the trial panel. There is not a single reference, in the one-hundred-andtwenty-seven-page transcript of proceedings, where Coleman is even mentioned.27 The lack of any such testimony calls into question Munson’s veracity before the trial panel in the reinstatement proceedings. ¶20 b) The record supports a conclusion that Munson engaged in the unauthorized practice of law during his suspension in Munson I and that he was less than truthful about the representation in his testimony before the trial panel on reinstatement. ¶21 The period of suspension in Munson I began on December 12, 1988 and ran through January 4, 1990. As previously noted, it appears that the attorney accepted a probate cause during this time period.28 In its investigation of the current cause, the Bar Association discovered that the attorney filed an application for attorney fees in the United States District Court for the Eastern District on November 10, 1992.29 Attached to that filing was a detailed hourly billing chart for a cause Munson handled for Bill Thompson. The time sheets contain thirtytwo (32) entries beginning on the day after the suspension order entered and ending on October 6, 1989.30 These entries, in and of themselves, demonstrate that the attorney was involved in the unauthorized practice of law during his initial suspension. ¶22 Munson acknowledged that there was a billing record for December 13, 1988 and a number of similar billings in the Thompson case thereafter. Nevertheless, when the attorney was questioned about these billings, he attempted to explain them away as computer programming errors or mistakes of an unnamed assistant.31 ¶23 The evidence of the unauthorized practice of law while under suspension is damning in and of itself. Similar causes have resulted in

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discipline ranging from public censure to disbarment depending on the mitigating circumstances.32 Even more troubling is Munson’s unwillingness to be straightforward and honest in his answers regarding the incident.33 Finally, apparently the attorney filed a false affidavit upon his reinstatement in 1990. At the time of his reinstatement without order of the Court, Rule 11.8, Rules Governing Disciplinary Proceedings, 5 O.S. Supp. 1989, Ch. 1, App. 1-A,34 required Munson to file a statement averring that he had not engaged in the unauthorized practice of law during his one-year term of suspension. The evidence before this Court demonstrates the falsity of any such statement filed. ¶24 c) The attorney’s failure to strictly comply with the conditions of his suspension and the with the provisions of Rule 9.1 militate against a finding of knowledge of the law and competency in its practice. ¶25 When the order of suspension in State ex rel. Oklahoma Bar Ass’n v. Munson (Munson II), 1993 OK 12, 848 P.2d 555 issued, the attorney was directed to pay costs of $2,228.51 “within a reasonable time from the date” of the order.35 Munson was notified by the Bar Association in June of 2007 that the costs of $2,228.51 for the 1993 proceeding remained outstanding.36 They were not received by the Bar Association until December 11, 2007.37 ¶26 Munson testified that he felt that, under the circumstances, his failure to pay the costs of the proceeding for some fourteen (14) years was reasonable. Nevertheless, he recognized that others might not agree with his position. We find ourselves among those who disagree. A reasonable time might have been the span of five (5) years, the mandatory suspension period. During that time, Munson could have met the obligation by setting aside $450.00 per year, a not overly burdensome sum. ¶27 Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A38 provides that when a lawyer is suspended there is an affirmative duty within twenty (20) days, to notify all clients via certified mail with pending business of the inability to represent them. There is also a requirement to formally withdraw from all pending cases. Finally, during the same twenty (20) day period, the lawyer must file an affidavit with the Commission and with the Clerk of the Supreme Court affirming his compliance with the rule and providing a Vol. 81 — No. 8 — 3/20/2010

list of the clients notified along with a summary of all other state and federal courts and administrative agencies before which the lawyer is admitted to practice law. The rule provides in mandatory language that “[p]roof of substantial compliance by the lawyer with this Rule 9.1 shall be a condition precedent to any petition for reinstatement.” ¶28 Following his suspension in Munson I, the attorney did not strictly comply with the requirements of Rule 9.1. Rather than filing the required affidavit within the twenty (20) day period, he filed it nine (9) days late and found it necessary to supplement it with a list of clients and the agencies and courts before which he practiced ten (10) days later.39 Nevertheless, the paperwork was filed within a reasonable time after suspension and contained all documentation necessary for meeting the standards imposed by the rule. The combined filings represent an instance of substantial compliance. ¶29 As early as the date the request for resignation in Munson II was filed, the attorney acknowledged the pending disciplinary proceedings and stated in pertinent part: “. . . I have familiarized myself with the provisions of Rule 9.1, RGDP, and do hereby agree to comply with all provisions of Rule 9.1, within twenty (20) days following the effective date of the Order entered by the Supreme Court approving this resignation. . . .”40 The attorney did not live up to his representation. He did not follow the twenty (20) day mandate of Rule 9.1. No filing was made until March 4, 2008. Some fourteen (14) years after his suspension in Munson II, the attorney filed an affidavit providing that to the “best of his knowledge” he had substantially complied with Rule 9.141 as it related to the notification of clients and the filing of withdrawals in all pending cases. He excuses his inability to provide the affidavits required by the rule “because of the length of time since the Resignation and the present unavailability of the records thereof.” ¶30 If Munson had followed the mandate of Rule 9.1 and filed his affidavits within the twenty (20) day mandated period, there would have been no reason to use the passage of time and the destruction or unavailability of records as an excuse for noncompliance. As a partial showing of substantial compliance, Munson relied upon the public nature of his transgressions, i.e. their publication in the local press.

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However, during the hearing before the trial panel in Munson II, the attorney argued that the complaint should be dismissed. Munson’s reasoning for the assertion was that: 1) the misappropriation of funds did not occur within the lawyer-client relationship;42 and 2) the way the matter was handled had kept it from the public.43 ¶31 Rather than paying costs associated with Munson II, within a reasonable time of the date of the order of suspension, the attorney waited fourteen (14) years and only paid the same upon his decision to file a petition for reinstatement. The attorney substantially complied with Rule 9.1 after his suspension in Munson I. Nevertheless, despite his statement indicating he would familiarize himself with the rule and comply, he failed to do so after his resignation in Munson II. His conflicting excuses and reliance on the passage of time are unconvincing and do not provide support for the argument of substantial compliance. CONCLUSION ¶32 The record presents incontrovertible evidence that Munson engaged in the unauthorized practice of law during his initial suspension. We are faced with evidence that the attorney did not strictly comply with the rules governing either his suspension or his reinstatement. The attorney gave equivocable answers both to questions regarding issues related to his unauthorized practice of law and the facts leading up to his second downfall. Nevertheless, it is obvious that the attorney has done a good deal to get his finances and his life in order. ¶33 In making a reinstatement decision, this Court must disregard feelings of sympathy,44 recognizing that the petitioner’s burden of proof is a heavy one.45 While we are concerned with any adverse effect reinstatement might have on the practicing bar, our foremost consideration is always to protect the public welfare.46 After having given due consideration to the evidence contained in this record and the appropriate factors examined in reinstatement proceedings, we determine that the petitioner has failed to carry his burden to show by clear and convincing evidence47 that he is entitled to reinstatement. Therefore, reinstatement is denied and costs of $1,705.4748 are imposed. 692

PETITION FOR REINSTATEMENT DENIED; PETITIONER ORDERED TO PAY COSTS OF $1,705.47. EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, WATT, WINCHESTER, COLBERT, REIF, JJ. - concur KAUGER, J. - not participating 1. State ex rel. Oklahoma Bar Ass’n v. Munson (Munson I), OBAD No. 813 (1988). 2. Rule 8.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A providing: “A lawyer who is the subject of an investigation into, or a pending proceeding involving, allegations of misconduct may resign membership in the Oklahoma Bar Association, and thereby relinquish the right to practice law, only by delivering to the Commission an affidavit stating that the lawyer desires to resign and that: (a) The resignation is freely and voluntarily rendered, the lawyer is not being subjected to coercion or duress, and the lawyer is fully aware of the consequences of submitting the resignation. (b) The lawyer is aware that there is presently pending an investigation into or proceedings involving, allegations that there exist grounds for discipline, specifying particularly the misconduct alleged. (C) The lawyer agrees that he may be reinstated only upon full compliance with the conditions and procedures prescribed by these Rules, and no application for reinstatement may be filed prior to the lapse of five years from the effective date of the resignation.” 3. Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A providing in pertinent part: “When the action of the Supreme Court becomes final, a lawyer who is disbarred or suspended, or who has resigned membership pending disciplinary proceedings, must notify all of the lawyer’s clients having legal business then pending within twenty (20) days, by certified mail, of the lawyer’s inability to represent them and the necessity for promptly retaining new counsel. . . . The lawyer must file, within twenty (20) days, an affidavit with the Commission and with the Clerk of the Supreme Court stating that the lawyer has complied with the provisions of this Rule, together with a list of the clients so notified and a list of all other State and Federal courts and administrative agencies before which the lawyer is admitted to practice. Proof of substantial compliance by the lawyer with this Rule 9.1 shall be a condition precedent to any petition for reinstatement.” 4. State ex rel. Oklahoma Bar Ass’n v. Munson (Munson II), 1993 OK 12, 848 P.2d 555. 5. Matter of Reinstatement of Mumina, 2009 OK 76, ¶2, ___ P.3d _ __; In re Reinstatement of Otis, 2007 OK 82, ¶7, 175 P.3d 357; In re Reinstatement of Massey, 2006 OK 21, ¶12, 136 P.3d 610. 6. Rule 11.4, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A providing: “An application for reinstatement must establish affirmatively that, if readmitted or if the suspension from practice is removed, the applicant’s conduct will conform to the high standards required of a member of the Bar. The severity of the original offense and the circumstances surrounding it shall be considered in evaluating an application for reinstatement. The burden of proof, by clear and convincing evidence, in all such reinstatement proceedings shall be on the applicant. An applicant seeking such reinstatement shall be required to present stronger proof of qualification than one seeking admission for the first time. The proof presented must be sufficient to overcome the Supreme Court’s former judgment adverse to the applicant. Feelings of sympathy toward the applicant must be disregarded. If applicable, restitution, or the lack thereof, by the applicant to an injured party will be taken into consideration by the Trial Panel on an application for reinstatement. Further, if applicable, the Trial Panel shall satisfy itself that the application complied with Rule 9.1 of these rules.” In re Reinstatement of Mumina, see note 5, supra; Matter of Reinstatement of Katz, 1995 OK 115, ¶20, 907 P.2d 1029. 7 Rule 11.1, Rules Governing Disciplinary Proceedings, 5 O.S. Supp. 2001, Ch. 1, App. 1-A providing in pertinent part: “A person whose name has been stricken from the Roll of Attorneys for nonpayment of dues, or who has been suspended from the practice of law for a period of longer than two (2) years or

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disbarred or who has resigned membership in the Association may be readmitted to the practice of law only through the following procedures: (A) The applicant shall file an original and ten copies of a petition for reinstatement with the Clerk of the Supreme Court, and attach thereto (1) an affidavit showing all of the applicant’s activities since the termination or suspension of his right to practice law and the applicant’s place or places of residence since that date; and (2) the applicants affidavit and the affidavits of the court clerks in the several counties in which he has resided, establishing that the applicant has not practiced law in their respective courts since the termination or suspension of his right to practice law. The applicant shall concurrently furnish a copy of said petition and all other documents filed with the Clerk of the Supreme Court to the General Counsel of the Oklahoma Bar Association. . . . (c) The applicant shall pay a fee to cover the expenses of investigating and processing the application as determined by the Professional Responsibility Tribunal. In addition, the applicant shall pay the cost of the original and one copy of the transcript of any hearings held in connection with the application…” State ex rel. Oklahoma Bar Ass’n v. Pacenza (Pacenza I), 2006 OK 23, ¶2, 136 P.3d 616. 8. The period of suspension in Munson I began on December 12, 1988 and ran through January 4, 1991. See ¶21, infra. 9. Title 5 O.S. 2001 §13; State ex rel. Oklahoma Bar Ass’n v. Farrant, 1994 OK 13, ¶13, 867 P.2d 1279; Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, ¶4, 624 P.2d 1049. 10. In re Reinstatement of Otis, see note 5, supra; State ex rel. Oklahoma Bar Ass’n v. Hulett, 2008 OK 38, ¶4, 183 P.3d 1014; Matter of Reinstatement of Jones, 2006 OK 33, ¶7, 142 P.3d 380. 11. Matter of Reinstatement of Pacenza (Pacenza II), 2009 OK 9, ¶7, 204 P.3d 58; In re Reinstatement of Holden, 2003 OK 28, ¶5, 66 P.3d 416; Matter of Reinstatement of Kamins, 1988 OK 32, ¶18, 752 P.2d 1125. 12. Rule 6.15, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Besly, 2006 OK 18, ¶2, 136 P.3d 590; Matter of Reinstatement of Rhoads, 2005 OK 53, ¶2, 116 P.3d 2187; State ex rel. Oklahoma Bar Ass’n v. Taylor, 2003 OK 56, ¶2, 71 P.3d 18. 13. Matter of Reinstatement of Pacenza (Pacenza II), see note 11, supra; State ex rel. Oklahoma Bar Ass’n v. Raskin, 1982 OK 39, ¶11, 642 P.2d 262. 14. Tweedy v. Oklahoma Bar Ass’n, see note 9, supra. 15. Matter of Reinstatement of Pierce, 1996 OK 65, 919 P.2d 422; Matter of Reinstatement of Cantrell, 1989 OK 165, ¶2, 785 P.2d 312. 16. Rule 11.1, Rules Governing Disciplinary Proceedings, see note 7, supra; Oklahoma Bar Ass’n v. Pacenza (Pacenza I), see note 7, supra. 17. Rule 11.4, Rules Governing Disciplinary Proceedings, see note 6, supra; Matter of Reinstatement of Jones, see note 10, supra. 18. Rule 11.4, Rules Governing Disciplinary Proceedings, see note 6, supra; In re Reinstatement of Fraley, 2005 OK 39, ¶37, 115 P.3d 842. 19. In re Reinstatement of Otis, see note 5, supra; Matter of Reinstatement of Blevins, 2002 OK 78, ¶3, 59 P.3d 510; Matter of Reinstatement of Kamins, see note 11, supra. 20. In re Reinstatement of Page, 2004 OK 49, ¶3, 94 P.3d 80; In re Reinstatement of Anderson, 2002 OK 64, ¶4, 51 P.3d 581, Matter of Reinstatement of Cantrell, see note 15, supra. 21. Rule 9.1, Rules Governing Disciplinary Proceedings, see note 3, supra. 22. Making full restitution to a lawyer’s victims will neither preclude discipline nor insure reinstatement. In re Reinstatement of Otis, see note 5, supra; Matter of Reinstatement of Massey, see note 5, supra. 23. Transcript of Reinstatement Hearing, November 18, 2008, Edward Munson testifying in pertinent part at pp. 66-67: “. . . But the Coleman case had distracted me a lot from that because it - it required things far beyond what I ever had imagined a case - a criminal case particularly would entail because there was just vast amounts of research. . . . And that just, in my particular case, started a spiral, a spiral which I fought to handle and was successful at for a long time, but it eventually catches up with you and in my suspension case, that was about two particular clients, the Geralds and the Carrs, and I didn’t get to their work as quick as it should have been. And when they came in to me, I did the worst thing I could have done. I lied to them. You know, I said oh, yeah, I’m doing that, that’s being filed. And in a couple of instances, I even did something worse. I blamed it on other people. I blamed it on the court clerk. I blamed it on a judge who I couldn’t get in to see for a hearing, you know, and that’s where that kind of spiral started…”

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24. Transcript of Reinstatement Hearing, November 18, 2008, Edward Munson testifying in pertinent part at pp. 69-70: “. . . Q And when you got reinstated, subsequent to that approximately, what, five years later? Four to five years later, it appears you had Bar charges filed on you in 1992; is that correct? A Yes, that’s - that’s correct. . . . And I soon found myself still trying to make up for this Coleman thing. Again, and I describe it and maybe I’m wrong, I’m not an expert in there, but I talk about that as a spiral. It actually started with Coleman and I fought hard and I was able to keep up with it and then it starts taking is toll and it starts spiraling faster and starts going deeper and deeper, which means that you have to work harder to try and stay above water. And what happens then is eventually, something happens, you know, that fee doesn’t get paid when you thought, clients don’t come in like you thought and you don’t stay above water and then the complaint comes from the Bar and that’s exactly what happened. Q And during that time period, you were taking client funds that were to be in trust or to be paid in trust for a number of things that weren’t related to that particular client, isn’t that ytrue? A That’s true. . . .” 25. Transcript of Reinstatement Hearing, November 18, 2009, Edward Munson testifying in pertinent part at pp. 177-78: “. . . Q Well, if you weren’t living an extravagant life-style, what, in fact, did you do with the approximately $75,000 in client money that you stole? A It was in this spiral. It went to the next client. There was a little bit short there. It went to the next client. There was a little bit short there, but initially, there was a couple of clients I had some deals going with that said, you know, here is this money, we’ll use it for projects and then we didn’t do that. Q So what you were doing was robbing Peter to pay Paul, essentially playing the float at the bank? A Well, I don’t know about playing the float, because there wasn’t any float. It was bad, you know, it was paying Peter or robbing from Peter to pay Paul. . . .” 26. This Court has defined three levels of culpability when evaluating the mishandling of funds in attorney disciplinary proceedings. They are: 1) commingling; 2) simple conversion; and 3) misappropriation, i.e., theft by conversion or otherwise. Commingling occurs when a client or third person’s monies are combined with the attorney’s personal funds. Complete separation of the money is required to insure proper accounting. Simple conversion occurs when an attorney applies a client or third person’s money to a purpose other than that for which it was entrusted. The third, and most serious infraction, occurs when funds are misappropriated. This happens when an attorney purposefully deprives a client or third person of money by way of deceit or fraud. Matter of Reinstatement of Otis, see note 5 at ¶16; State ex rel. Oklahoma Bar Ass’n v. Parsons, 2002 OK 72, ¶¶12-14, 57 P.3d 865. 27. Exhibit 17, Transcript of Proceedings, December 11, 1992. 28. See ¶9, supra. 29. We do not find the Bar Association’s allegations that Munson engaged in the unauthorized practice of law after resigning from the practice of law in Munson II by preparing a deed for a friend convincing. Munson’s supervising attorney submitted his affidavit indicating that he reviewed the deed before delivery. See, Petitioner’s Exhibit 24, Affidavit of Thomas M. Hart providing in pertinent part: “. . . l. I am a licensed and practicing attorney in the State of Minnesota . . . . 4. Mr. Munson has brought to me the attached documents regarding work he performed for his friend, Lloyd C. Bailey, pro bono, in 2003. Mr. Munson performed this work with my prior consent. My recollection is that I reviewed the documents as prepared by Mr. Munson prior to their execution. . . .” 30. Exhibit 12, District Court Records, filed October 13, 2009. 31. Transcript of Reinstatement Hearing, November 18, 2009, Edward Munson testifying in pertinent part at pp. 170-174: “. . . Q (by Mr. Rossier) Mr. Munson, looking on page 4 of that billing record, about halfway down, I notice that there is a billing record for Receipt [sic] and review of correspondence . . . regarding client’s psychiatric exam dated December the 13th, 1988? Do you see that? A Yes. Q All right. That would be after you were suspended from the practice of law; is that right? A That’s correct. . . . Q As a matter of fact, continuing on page 5 and going all the way through page 6, we find continuous record of billing in the Social Security matter all the way up until October the 6th of 1989. . . . A Okay.

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Q Do you see that? Now, sir, these are contemporaneous billing records; is that correct? A Contemporaneous billing records? No. Q Meaning that the activities listed here on the dates occurred on the dates that are listed next to them? A These would have been inserted into a computer program by - I cannot remember her name. A lady who worked there doing the billings and things. Q Yes, sir. I’m simply asking if the dates on the left-hand column are - indicate the time period in which the activity in the middle column took place. A I - I assume so. I -Q All right. So what this indicates is that you billed a client for legal services during the time that you were suspended from the practice of law in 1989; is that right? A As I recall, this billing did not go to the client. This - if my assistant in billing did this as usual, she would have made this up for the Social Security Administration and there were several of these that things kept coming in during the year of my suspension and I’d get ahold of people and say here’s this, here’s that, here’s this, telling people that I couldn’t do anything. You know, this - this Q Did you not submit these records to the Court as proof of your fee owed in this case? A That would - again I assume would be correct as to what was presented. I don’t know if this . . . Q Okay. Below the PRIVACY ACT NOTICE, there is a line that reads ‘I request approval to charge a fee of’ and the types number in there is $3,429.20 for services performed as a representative of Bill Thompson. Services began 4-27-87. Services ended 1-10-1992. And at the bottom where it says Signature of Representative, is that your signature? A That is my signature. Q So according to this, you’re asking the court to approve a fee where you represented this person between 1987 and 1992 continuously; is that right? A That’s the way the form is set up , yes, sir. . . . A Mr. Thompson brought this case back to me because he hadn’t been able to find anybody in the interim to take it and after I was reinstated and he heard about that, he brought it back to me. The billings, you know, honestly, I don’t know why we put those on there. At that time, it was Q So what you’re telling us, Mr. Munson, is that either you billed a client and performed services while you were suspended from the practice of law or you submitted a fraudulent request for attorney’s fees to a U.S. District Court. Which is it? A Well - . . .” 32. In re Reinstatement of DeBacker, 2008 OK 17, ¶23, 184 P.3d 506 [Sentence deferred one year where attorney inadvertently held himself out as licensed for 27 years while in corporate practice.]; State ex rel. Oklahoma Bar Ass’n v. Wagener, 2005 OK 3, ¶13, 107 P.3d 567 [Engaging in unauthorized practice of law during suspension and failure to file petition in error and notify client warranted six month suspension.]; State ex rel. Oklahoma Bar Ass’n v. Malloy, 2006 OK 38, ¶13, 142 P.3d 383 [Attorney suspended for nine months for unauthorized practice of law.]; State ex rel. Oklahoma Bar Ass’n v. Patterson, 2001 OK 51, ¶39, 28 P.3d 551 [Attorney misconduct in engaging in the unauthorized practice of law in the federal circuit court during a period of suspension subject to public censure.]; State ex rel. Oklahoma Bar Ass’n v. Patmon, 1998 OK 91, ¶21, 975 P.2d 860, cert. denied, 526 U.S. 1120, 119 S.Ct. 1772, 143 L.Ed.2d 801 (1999), rehearing denied, 527 U.S. 1058, 120 S.Ct. 25, 144 L.Ed.2d 828 (1999) [Attorney, who among other things, assisted secretary in the unauthorized practice of law suspended for two years and a day.]; State ex rel. Oklahoma Bar Ass’n v. Wolfe, 1997 OK 47, ¶13, 937 P.2d 988 [Attorney disbarred because of unauthorized practice of law while under disciplinary suspension coupled with other misconduct.]; State ex rel. Oklahoma Bar Ass’n v. Holden, 1996 OK 88, ¶8, 925 P.2d 32 [Attorney suspended from the practice of law for two years and one day for the unauthorized practice of law while under disciplinary suspension.]; State ex rel. Oklahoma Bar Ass’n v. O’Neal, 1993 OK 61,¶9, 852 P.2d 713 [Attorney publicly censured for unauthorized practice of law while under suspension for nonpayment of bar dues and noncompliance with CLE requirements.]; State ex rel. Oklahoma Bar Ass’n v. Downing, 1993 OK 44, ¶11, 863 P.2d 1111 [Attorney disbarred because while under suspension, engaged in the unauthorized practice of law, lied to a client about the status of a case and about the attorney’s ability to continue representation, and failed to act with due diligence and competence.]. 33. It is likewise disingenuous to assert that we should be unconcerned about such unauthorized practice of law because it occurred in Munson I rather than in Munson II. The attorney’s tendered resigna-

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tion made it unnecessary for this Court to peruse the record made in the hearings before the trial panel in Munson II. Furthermore, the Motion and Brief for Attorney Fees was not even filed in the District Court until November 10, 1992, almost two years after the suspension imposed in Munson I terminated. The document is found as an attachment to Exhibit 12, Filed on October 13, 2009. In relation to the question of her client, Munson’s attorney argued that the line of questioning was objectionable. Transcript of Reinstatement Hearing, November 18, 2009, providing in pertinent part at pp. 174-75: “. . . MS. TIMMONS: I’m going to object to this line of questioning. We have documents that were done between his 1988 suspension and his 1993 resignation. The resignation in 1993 dealt with actions that were pending, actions that occurred prior to that, actions that might have come in after that case in point being the Fishinghawk case, so I don’t think it’s relevant to his reinstatement hearings today. If the bar association had these available records in 1989 and also in - well, they had them in 1993 and when he resigned pending disciplinary proceedings, this is one of the things that was the cause of his resignation. So I think that these records don’t go to his present fitness and they don’t go to his reinstatement effective this time. If the Bar didn’t specifically bring them up between 1988 and 1993, I don’t think they ought to be able to bring them up now. MR. COLLINS: I’m going to overrule the objection . . .” 34. Rule 11.8, Rules Governing Disciplinary Proceedings, 5 O.S. Supp. 1989, Ch. 1, App. 1-A providing in pertinent part: “A lawyer who has been suspended for two (2) years or less upon disciplinary charges may resume practice upon the expiration of the period of suspension by filing with the Clerk of the Supreme Court an original and two (2) copies of an affidavit affirming that affiant has not engaged in the unauthorized practice of law or otherwise violated the rules of the association or the terms of the affiant’s order of suspension. . . . 35. State ex rel. Oklahoma Bar Ass’n v. Munson (Munson II), see note 4, supra. 36. Exhibit 5, Letter from Dan Murdock to Edward L. Munson dated June 7, 2007. 37. Exhibit 6, Receipt of Costs, filed on December 14, 2007. 38. Rule 9.1, Rules Governing Disciplinary Proceedings, see note 3, supra. 39. The first affidavit was filed on January 11, 1989, and the second followed on January 19th of the same year. The affidavits appear as Exhibits 3 and 4. 40. The affidavit is attached to Exhibit 2, the Bar Association’s Application for Order Approving Resignation Pending Disciplinary Proceedings of Edward L. Munson, filed on February 1, 1993. 41. Exhibit 7, Affidavit of Edward L. Munson, filed on March 4, 2008. 42. A lawyer may be disciplined for actions outside a lawyer-client relationship. Rule 1.3, Rules Governing Disciplinary Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A providing in pertinent part: “The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action . . .” 43. Transcript of Proceedings, December 11, 1992, Edward L. Munson speaking in his opening statement and providing in pertinent part at p. 11: “. . . I do not feel that this is the kind of matter wherein a client has been harmed. It is personal, and so whether you say it’s my efforts or the bank’s efforts or just the way things worked out this matter has been kept from the public. It has been kept by the court and by the bank and by myself private to where it would not reflect generally to the public. For those reasons, I do not feel that the compliant is sufficient…” 44. Matter of Reinstatement of Page, see note 20, supra. 45. In re Reinstatement of Hird, 2008 OK 25, ¶3, 184 P.3d 535; Matter of Reinstatement of Bradley, 1993 OK 107, ¶8, 897 P.2d 243; Matter of Reinstatement of Kamins, see note 11, supra. 46. In re Reinstatement of Fraley, see note 18, supra; Matter of Reinstatement of Cantrell, see note 15, supra. 47. Rule 11.4, Rules Governing Disciplinary Proceedings, see note 6, supra; Matter of Reinstatement of Jones, see note 10, supra. 48. Rule 11.1, Rules Governing Disciplinary Proceedings, see note 7, supra.

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2010 OK 19 STATE OF OKLAHOMA ex rel. EMILY REDMAN, District Attorney, Plaintiff/ Appellee, v. $122.44; DIGITAL SCALES; CABELA’S SAFE SN 2020515; REMINGTON 12 GA SHOTGUN SN N976879V; SEARS AND ROEBUCK MODEL 20-12 GA SHOTGUN SN UNKNOWN; MOSSBERG 12 GA SHOTGUN SN MV20207K; NEW HAVEN MOSSBERG 22 MAG SN 1126464; JC HIGGINS SEARS AND ROEBUCK MODEL 583.1 12 GA SHOTGUN SN UNKNOWN; WINCHESTER MODEL 67 22 RIFLE SN UNKNOWN; RUGER 12-22 RIFLE SN 29010763; BROWNING BELGIAN MADE 22 RIFLE SN 3174459; ROSSI 17 HMR CAL SN AC015402; ROMANIAN 762X39 SN 1412992003; RUGER 10-22 SN 23496522; RUGER MINI 14 SN 18050780; INTERARMS 44 MAG SN M035407; WINCHESTER 30-30 SN USA 19236; CRICKET 22 CAL SN 131451; SMITH and WESSON 50 CAL PISTOL SN CJDO940; COLT 22 CAL PISTOL SN PH41279; 2 HOLSTERS 7 GUN MAGAZINES; 2 KNIVES; 7 POCKET KNIVES; 1 BUSHNELL SCOPE; AR 15 CARRY HANDLE; SLING; AND STRAIGHT RAZOR, Defendants, and JOSEPH HARRELL, JR., Respondent/ Appellant. No. 106,292. March 2, 2010 CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV APPEAL FROM THE DISTRICT COURT OF BRYAN COUNTY, STATE OF OKLAHOMA HONORABLE MARK R. CAMPBELL, TRIAL JUDGE ¶0 The District Court of Bryan County forfeited a gun safe and the weapons it contained, based on a finding these items facilitated the owner’s possession of marijuana with intent to distribute. By a majority opinion, the Court of Civil Appeals affirmed the forfeiture of the weapons, but reversed the forfeiture of the safe. This court previously granted the owner’s petition for certiorari. Upon certiorari review, we vacate the opinion of the Court of Civil Appeals, reverse the trial court’s forfeiture and remand with instructions. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; TRIAL COURT’S Vol. 81 — No. 8 — 3/20/2010

FORFEITURE ORDER REVERSED AND REMANDED WITH INSTRUCTIONS. Emily Redman, DISTRICT ATTORNEY, Julie Cuesta-Naifeh, ASSISTANT DISTRICT ATTORNEY, Durant, Oklahoma, for Defendant/ Appellee, D. Michael Haggerty, II, HAGGERTY LAW OFFICE, PLLC, Durant, Oklahoma, for Plaintiff/Appellant. REIF, J.: ¶1 The issue presented on certiorari review is whether the trial court and the Court of Civil Appeals correctly forfeited weapons that were kept in the same residence where marijuana was found that, in turn, led to a conviction of the owner for possession of marijuana with intent to distribute. Upon certiorari review, we hold that the trial court and the Court of Civil Appeals erred in the forfeiture of the weapons in question and reverse. ¶2 Following the service of a search warrant at his home, Joe Harrell, Jr., was convicted of possessing some 22 ounces of packaged marijuana with intent to distribute. In addition to the marijuana that was found in the master bedroom and the kitchen, the officer executing the search warrant seized a gun safe (and its contents) located in the living room. The safe contained: (1) 17 firearms, including rifles, shotguns, and hand guns; (2) accessories, such as holsters, gun magazines, a scope, a carry handle and a sling; (3) miscellaneous ammunition; (4) two knives; (5) seven pocket knives; (6) a straight razor; (7) $22.01 in bills and coin; (8) a document addressed to Mr. Harrell’s mother; and (9) .09 grams of marijuana residue from cracks along the floor piece of the safe. ¶3 The State sought to forfeit the safe and its contents. Although pleading three statutory grounds for forfeiture, the State ultimately argued for forfeiture of the safe and its contents based on 63 O.S. Supp. 2008 § 2-503(A)(9) alone. This statutory provision authorizes forfeiture of “ [w]eapons . . . available for use in any manner to facilitate a violation of the Uniform Controlled Dangerous Substances Act.” To prove this ground, the State relied upon the opinions of the officer that (1) the safe was being used to store marijuana, and (2) “if you’re selling marijuana and you’re getting it out of a safe, there are weapons there [that] could be, you know, intimidating [to] make sure you don’t get ripped off.”

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¶4 Specially noting that “marijuana residue [was] found locked in the safe with the referenced weapons,” the trial court concluded Mr. Harrell’s “purpose in having the [safe and its various weapons] was in furtherance of his illegal drug enterprise.” The trial court ruled “the safe and all weapons in the safe [were] ‘available for use in any manner to facilitate a violation of the Uniform Controlled Dangerous Substances Act’ as contemplated in 63 § 2503(A)(9).” The court ordered the safe and its contents forfeited. ¶5 By a majority opinion, the Court of Civil Appeals affirmed the forfeiture of the weapons, but reversed the forfeiture of the safe itself. The majority opinion noted that the statutory ground relied on by the State and the trial court only authorized forfeiture of “weapons.” The majority opinion observed that “the plain meaning of the term would not reasonably include a safe, even if the safe is used to store “weapons.” ¶6 As for the contents of the safe, however, the majority opinion concluded the contents were weapons that facilitated Mr. Harrell’s possession of marijuana with intent to distribute. The majority opinion explained “the guns inside the safe, easily accessible and in close proximity to the marijuana, could be used for intimidation purposes in the sale thereof.” The dissent registered disagreement with this conclusion by noting “the location of the safe and its contents in the living room [was] a location which was out of the sight of drugs.” It appears the dissent was referring to the fact that the packaged marijuana was found in the closet of the master bedroom (some fifteen feet away from the living room) and in a cabinet in the kitchen. ¶7 In reaching their respective conclusions that the weapons in the safe were subject to forfeiture, both the trial court and the Court of Civil Appeals followed the interpretation of 63 O.S. Supp. 2008 § 2-503(A)(9), set forth in State of Oklahoma ex rel. Oklahoma Bureau of Narcotics and Dangerous Drugs Control v. One (1) Stevens 12 Ga. Shotgun, 2003 OK CIV APP 102, 82 P.3d 110. However, both the trial court and the Court of Civil Appeals believed a difference between the facts in the case at hand and the facts in the Stevens 12 Ga. Shotgun case dictated a different result than reached by the court therein. Our review of the Stevens 12 Ga. Shotgun case, leads us to conclude that it correctly interprets § 2-503(A)(9). We also conclude the 696

facilitation requirement set forth therein dictates the same result in the case at hand as the court reached in the Stevens 12 Ga. Shotgun case, despite some factual differences.1 ¶8 In particular, we agree that the State must demonstrate that the connection between the property sought in forfeiture and the underlying offense is more than incidental or fortuitous. Id. at ¶ 6, 82 P.3d at 112.2 The State must do so in order to guarantee that the State is seizing actual instruments of the illegal drug trade. Id. It would be unreasonable for a court to order forfeiture of property which has only an incidental or fortuitous connection to unlawful activity. Id. at ¶ 5, 82 P.3d at 112. ¶9 The establishment of some link or nexus is particularly important in cases involving a residence where people commonly keep all of their possessions (both legal and illegal) to which they want ready access. Id. at ¶ 7, 82 P.3d at 112. Mere presence of an item with drugs and a dangerous capability of the item to protect the drugs are not alone sufficient to establish the nexus necessary for forfeiture. Id. To forfeit under 63 O.S. Supp. 2008 § 2-503(A)(9), the State must demonstrate that the “weapon” has somehow “facilitated” the offense or offenses that serve as the basis of its forfeiture.3 State of Oklahoma, ex rel. Oklahoma Bureau of Narcotics and Dangerous Drugs Control v. Stevens 12 Ga. Shotgun, 2003 OK CIV APP 102, ¶ 8, 82 P.3d at 112. ¶10 In the Stevens 12 Ga. Shotgun case, the State sought to prove the facilitation nexus by the opinion testimony of a narcotics agent with considerable training and experience. This agent testified that marijuana cultivators will have numerous weapons around their residence to protect their crop. Without more, this opinion testimony was found to be insufficient. Id. at ¶ 12, 82 P.3d at 113. The opinion testimony of the officer in the case at hand (that the weapons in the safe “could be” used for intimidation to make sure Mr. Harrell did not “get ripped off”) is not substantially different than the opinion testimony in Stevens 12 Ga. Shotgun, and is similarly insufficient to show that the weapons facilitated Mr. Harrell’s possession of marijuana with intent to distribute. ¶11 Like the court in the Stevens 12 Ga. Shotgun case, we deem it necessary for the State to show some additional fact or circumstance, along with such generalized opinions, to support a facilitation nexus. Id. at ¶ 13, 82 P.3d at

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113. Examples of such additional facts or circumstances include a statement by a drug offender that he would use weapons to protect his drugs and drug activity, testimony that a drug offender was observed being armed while engaged in the drug activity, or even that a firearm or weapon was found on the offender’s person when arrested for a drug offense. Id. ¶12 Not only did the State fail to establish the basis for an inference that the weapons in the safe “facilitated” Mr. Harrell’s possession on marijuana with intent to distribute, the opinion testimony of the officer as well as the conclusions of the trial court and the Court of Civil Appeals, were all based on the erroneous assumption that Mr. Harrell sold marijuana at his residence.4 There is no evidence in the record that Mr. Harrell ever sold or otherwise transferred marijuana to anyone at his residence. Obviously, for the weapons in the safe to have an intimidation effect, there must be evidence that someone was obtaining marijuana at the residence who could be exposed to and intimidated by the weapons in the safe. ¶13 Finally, even the marijuana residue found in the safe with the weapons does not support an inference that the weapons in the safe “facilitated” Mr. Harrell’s possession of marijuana with intent to distribute. The officer’s testimony that the marijuana residue in the safe indicated to him that marijuana had been stored there reflects a reasonable deduction. However, on cross examination, the officer conceded that the residue could have easily come from someone using marijuana for personal use. There was clear evidence marijuana had been smoked in the living room where the safe was located. Ultimately, the officer admitted he could not say how the residue got there. ¶14 The most that can be said about the residue in the safe is that it was deposited at some unknown time by some unknown means prior to the officer opening the safe. Other than being present in the safe with the other contents at the time the officer opened it, there is nothing to show that the contents of the safe were related to the residue or vice versa. Stated another way, there is no more reason to believe the guns facilitated the presence of the residue than there is to believe that the knives facilitated the presence of the money. In a few words, the relationship between the various contents of the safe with each other and the residue is simply incidental or fortuitous. Vol. 81 — No. 8 — 3/20/2010

¶15 Resolution of the issue in this case required the interpretation and application of a statute — § 2-503(A)(9) — to undisputed facts and thus presented questions of law for de novo determination by this Court. Pan v. Bane, 2006 OK 57, ¶ 5, 141 P.3d 555, 558. In doing so we approve and adopt the interpretation of § 2-503(A)(9) set forth in the Stevens 12 Ga. Shotgun case, and hold that the undisputed evidence presented in support of forfeiture was insufficient to show the weapons kept in the residence facilitated the owner’s offense of possessing marijuana with intent to distribute based on the factors discussed in the Stevens 12 Ga. Shotgun case. ¶16 In reaching this conclusion, we are reminded that the law abhors forfeitures and statutes authorizing forfeiture of private property are to be strictly construed. State ex rel. Dept. of Public Safety v. 1985 GMC Pickup, 1995 OK 75, ¶ 8, 898 P.2d 1280, 1282. A forfeiture will not be allowed except when required by clear statutory language. Id. The weapons in question were not subject to forfeiture under the clear statutory language of § 2-503(A)(9). Accordingly, it was error to order forfeiture of the weapons in question and for the Court of Civil Appeals to affirm that order. The Court of Civil Appeals’ opinion is vacated, the trial court’s forfeiture order is reversed, and this case is remanded to the trial court to return the safe and its contents5 to Joe Harrell, Jr. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; TRIAL COURT’S FORFEITURE ORDER REVERSED AND REMANDED WITH INSTRUCTIONS. ¶17 EDMONDSON, C.J., HARGRAVE, OPALA, WATT, WINCHESTER, COLBERT, and REIF, JJ., concur. ¶18 TAYLOR, V.C.J., with whom KAUGER, J., joins, dissenting. I respectfully dissent. The trial judge and the Court of Civil Appeals were correct in their disposition of this issue. This was a drug house. There were packaged drugs, digital scales and extra baggies. There were guns and drug residue in the safe. The guns and the drugs are conveniently 15 feet apart. The guns are clearly helpful in facilitating the crime of possession of illegal drugs with intent to distribute. This is an uncomfortable picture for the drug dealer, but it is a clear picture for legal analysis.

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1. Both the trial court and Court of Civil Appeals felt the Stevens 12 Ga. Shotgun case turned on the fact that the marijuana in that case was being cultivated outside the residence where the guns were kept. However, this was not a determinative fact. Forfeiture of the guns in the Stevens 12 Ga. Shotgun case was denied because the State failed to show how they facilitated the offense of cultivating marijuana. 2. In comparing federal forfeiture statutes, the Indiana Supreme Court has determined that the government must demonstrate that the nexus between the property sought in forfeiture and the underlying offense is more than incidental or fortuitous. Katner v. State, 655 N.E.2d 345, 348-49 (Ind. 1995)(citing U.S. v. Real Estate Known as 916 Douglas Avenue, 903 F.2d 490, 494 (7th Cir.1990)). The Indiana Court observed that “[t]his nexus requirement is a means to guarantee that the government is seizing actual instruments of the illegal drug trade. The language of the statute is directed toward instruments of this illicit activity, in hopes of retarding, through asset forfeiture, expanding drug commerce.” Id. at 349 (emphasis added). 3. The court in the Stevens 12 Ga. Shotgun case looked to the interpretation of a federal forfeiture statute by Platt v. United States, 163 F.2d 165 (10th Cir.1947). Platt involved the forfeiture of an automobile that a drug addict drove to a drugstore to obtain drugs by a forged prescription. It noted that “[t]he forfeiture statute in Platt provided for forfeiture of any vehicle that was used ‘to facilitate the ... receipt, possession [or] purchase ... of any contraband article.’ Id. at 166. The [Platt] court noted that ‘[t]he word ‘facilitate’ is one of common use in business and transactions between ordinary persons [and] is a term of everyday use, with a well understood and accepted meaning.’ Id. The [Platt] court cited standard dictionary sources, one of which defined ‘facilitate’ as meaning: ‘To make easy or less difficult; to free from difficulty or impediment; as to facilitate the execution of a task. (2) To lessen the labor of; to assist;....’ Id. at 166-67.” State of Oklahoma, ex rel. Oklahoma Bureau of Narcotics and Dangerous Drugs Control v. Stevens 12 Ga. Shotgun, 2003 OK CIV APP 102, ¶ 9, 82 P.3d at 112-13. The Platt court concluded that to be subject to forfeiture, the “facilitate” requirement would be satisfied only if the automobile was used to assist in the commission of the crime. Platt, 163 F. 2d at 167. 4. Both the officer and the courts may have been justified to infer that Mr. Harrell was selling marijuana at his residence if a large amount of money had been found at the residence. However, the undisputed testimony shows that a total of $122.44 was found at the residence. This included (1) $34.16 in miscellaneous change from a bucket on the dresser in the master bedroom, (2) $12.00 in bills and $11.01 in coins found in the safe, and (3) $65.27 found in another bedroom in which no marijuana was recovered. While it is true that Mr. Harrell did not contest the forfeiture of this money at the forfeiture hearing, such action on his part is not evidence that he sold marijuana at his residence. 5. Mr. Harrell did not contest forfeiture of the $23.01 found in the safe. Accordingly, it is excluded from the direction to return the contents of the safe.

application for leave to file amicus curiae brief, the petition in error, and the response thereto, in the above styled and numbered cause, THE COURT FINDS: 1. The dispositive issue before us is the applicability of the one-subject rule pursuant to art. 5, §57 of the Oklahoma Constitution1 to Senate Bill No. 1878. The bill, allegedly comprised of portions of five separate bills, involves multiple subjects concerning freedom of conscience. Insofar as the one subject rule is concerned, it is virtually identical to other legislation which we have found to be unconstitutional: House Bill 1743 (space in the capitol building), Senate Bill 1708 (uniform laws), House Bill 1105 (accounting of funds), Initiative Petition 382 (eminent domain), House Bill 1570 (releasing of funds), Senate Bills 142 and 725 (cultural entities), and Senate Bill 1374 (water reservoirs and cultural entities). 2. Art. 5, §57 of the Oklahoma Constitution provides: “Every act of the Legislature shall express but one subject, which shall be clearly expressed in its title. . . .”2 This provision is commonly known as the “single subject rule.” The purposes of the single subject rule are: a) to ensure that the legislators or voters of Oklahoma are adequately notified of the potential effect of the legislation3 and;

2010 OK 21 NOVA HEALTH SYSTEMS, D/B/A/ REPRODUCTIVE SERVICES, on behalf of itself, its staff, and its patients, Plaintiff/ Appellee, v. (1) W.A. DREW EDMONDSON, in his official capacity as Attorney General of Oklahoma; (2) TIM HARRIS, in his official capacity as Tulsa County District Attorney; (3) TERRY L. CLINE, in his official capacity as Executive Director of the Oklahoma Board of Medical Licensure and Supervision; and (4) CHERYL A. VAUGHT, in her official capacity as President of the Oklahoma State Board of Osteopathic Examiners, Defendants/Appellants. No. 107,592. March 2, 2010 DISPOSITION BY ORDER Upon consideration of the record, briefs, transcripts, the motion for oral argument, the 698

b) to prevent “logrolling,”4 the practice of assuring the passage of a law by creating one choice5 in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure that an unfavorable provision is not enacted.6 The single subject rule applies to legislative acts promulgated through the initiative process, as well as those promulgated through the Legislature.7 3. This concept has been recognized by the Court since statehood. In In re County Commissioners of Counties Comprising Seventh Judicial Dist., 1908 OK 207, 98 P. 557, the Court noted in ¶¶4-5 that:

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...Each subject brought into the deliberation of the legislative department of the government is to be considered and voted on singly, without having associated with it any other measure to give it strength. Experience had shown that measures having no common purpose, and each wanting sufficient support on its merits to secure its enactment, have been carried through legislative bodies and enacted into laws. when neither measure could command or merit the approval of a majority of that body. 4. Over the last two decades we have addressed the single subject rule at least seven times. Johnson v. Walters, 1991 OK 107, ¶22, 819 P.2d 694; Campbell v. White, 1993 OK 89, ¶20, 856 P.2d 255; Morgan v. Daxon, 2001 OK 104, ¶1, 49 P.3d 687; In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶18, 142 P.3d 400; Weddington v. Henry, 2008 OK 102, ¶1, 202 P.3d 143; Fent v. State ex rel. Office of State Finance, 2008 OK 2, ¶30, 184 P.3d 467; and Fent v. State of Oklahoma ex rel. Oklahoma Capital Improvement Authority, 2009 OK 15, ¶¶10-23, 214 P.3d 799. 5. We are growing weary of admonishing the Legislature for so flagrantly violating the terms of the Oklahoma Constitution. It is a waste of time for the Legislature and the Court, and a waste of the taxpayer’s money. The Legislature ignored our earlier opinions, especially Campbell v. White, 1993 OK 89, ¶¶19-20, 856 P.2d 255, when it apparently consolidated five separate multi-subject bills into Senate Bill 1878 which facially, patently, and obviously contained multiple subjects. In Campbell, we said: ...Because Senate Bill 142 and Senate Bill 725 contain a multiplicity of provisions unrelated to a common theme or purpose, they are unconstitutional. This is the is the second time in less than two years that this Court has been called upon to determine whether legislatively enacted laws are unconstitutional for violation of the single-subject mandate. . . We trust a third opinion will not be necessary. Our consideration for the practical operations of government should not be understood Vol. 81 — No. 8 — 3/20/2010

to be a shield for the continued enactment of unconstitutional laws. Although we are sympathetic with the time constraints the Legislature faces in session, this Court is bound to uphold the Constitution — we are prepared to do so. 6. We continued to uphold the Constitution in Fent v. State of Oklahoma ex rel. Oklahoma Capital Improvement Authority, 2009 OK 15, ¶¶10-23, 214 P.3d 799, which is dispositive of this proceeding. In Fent, we completely re-examined and explained the nearly twenty years of estab lished precedent which settles the question of whether legislation may contain more than one unrelated subject. Fent was the second time in less than three months that we had to strike legislation because it contained more than one unre lated subject. Because we have exhaustively and repeatedly addressed the issue there is no need to do so here. If the Legislature believes that the multiple subjects involved in Senate Bill No. 1878 are important, it can enact separate bills. 7. Nevertheless, because the Legislature did not have the benefit of Fent v. State of Oklahoma ex rel. Oklahoma Capital Improvement Authority, 2009 OK 15, ¶¶10-23, 214 P.3d 799, when it enacted Senate Bill 1878, we again restate: THE CLEAR LANGUAGE OF THE OKLAHOMA CONSTITUTION REQUIRES THAT ALL LEGISLATIVE ACTS SHALL EMBRACE BUT ONE SUBJECT. 8. Because Senate Bill No. 1878 is so obviously violative of the one-subject rule mandated by the terms of art. 5, §57 of the Oklahoma Constitution, it is unconstitutional and void. Therefore, additional briefing by amicus curiae, as well as oral argument, is denied because it is unnecessary and would cause counterproductive delay. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that the motion for oral argument, and the motion to file an amicus brief be denied and the order of the District Court be, and is hereby, affirmed. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 1ST DAY OF MARCH, 2010.

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/s/ James E. Edmondson CHIEF JUSTICE EDMONDSON, C.J., HARGRAVE, KAUGER, TAYLOR, WATT, COLBERT, JJ., concur. OPALA, WINCHESTER, REIF, JJ., concur in result. 1. The Oklahoma Constitution, art. 5, §57 provides: Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred shall be re-enacted and published at length: Provided, That if any subject be embraced in any act contrary to the provisions of this section, such act shall be void only as to so much of the law as may not be expressed in the title thereof. The Oklahoma Constitution, art. 5, §56 similarly provides: The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject. 2. The Oklahoma Constitution, art. 5, §57, see note 1, supra. 3. Edmondson v. Pearce, 2004 OK 23, ¶43, 91 P.3d 605, cert. denied, 543 U.S. 987, 125 S.Ct. 495, 160 L.Ed.2d 371(2004); In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, ¶15, 813 P.2d 1019; In re Initiative Petition No. 314, 1980 OK 174, ¶59, 625 P.2d 595; Gibson Prods. Co. of Tulsa v. Murphy, 1940 OK 100, ¶9, 100 P.2d 453. 4. In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶8, 142 P.3d 400. The etymology of the term “logrolling” probably evokes the picture of a pioneer clearing a field. The landowner would enlist a neighbor to help roll a fallen tree too heavy to be moved by one person into a pile for burning. See Black’s Law Dictionary, “logrolling” (8th ed. 2004); The American Heritage Dictionary of The English Language, “logrolling” (4th ed. 2000). 5. In re Initiative Petition No. 382, State Question No. 729, see note 4 supra at ¶8. The choice, often known as “Hobson’s choice” is an apparently free choice that offers no real alternative; in the parlance of our times, a “take it or leave it.” The phrase finds its origin in the practice of an English livery stable proprietor named Thomas Hobson (1544?-1630), who required that his customers choose the horse nearest the stable door or none at all. See, The American Heritage Dictionary of the English Language, “Hobson’s choice” (4th ed. 2000). 6. Edmondson v. Pearce, see note 3, supra at ¶44; In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, ¶¶17-18, 879 P.2d 810; Johnson v. Walters, 1991 OK 107, ¶22, 819 P.2d 694. In re Initiative Petition No. 314, see note 3, supra at ¶¶59-63. The rule also exists to prevent the Legislature from “veto-proofing” a bill, or attaching a rider to a bill to prevent the Governor from having any real opportunity to veto the measure. See Johnson v. Walters, supra. 7. Edmondson v. Pearce, see note 3, supra at ¶44; In re Initiative Petition No. 347, see note 3, supra at ¶13.

2010 OK 25 STATE OF OKLAHOMA, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. RHETT HENRY WILBURN, Respondent. SCBD No. 5436. March 16, 2010 RULE 7 DISCIPLINARY PROCEEDING ¶0 Complainant initiated attorney discipline proceeding against Respondent for misconduct arising out of one felony and three misdemean700

or convictions. After a hearing to mitigate the severity of discipline, a Professional Responsibility Tribunal recommended suspension for two years and one day. After de novo review, this Court finds that Respondent is guilty of misconduct and the appropriate discipline is suspension for two years and one day. RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY; RESPONDENT ORDERED TO PAY COSTS. Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma for complainant. Respondent, Rhett Henry Wilburn, Glenpool, Oklahoma appearing pro se. REIF, J.: ¶1 This case is a disciplinary proceeding against Respondent, Rhett Henry Wilburn, pursuant to Rule 7; (Summary Disciplinary Proceedings before the Supreme Court) 5 O.S.2001, Ch. 1, App. 1-A. Respondent was convicted in Pawnee County of felony unlawful possession of a controlled substance, Oxycodone. He was placed on three years’ probation, with the first year under supervision of the Oklahoma Department of Corrections. Respondent was also convicted of three misdemeanors in Tulsa County — one count of entering a building with the unlawful intent to commit assault and battery, and two counts of assault and battery upon the persons of an eleven-year-old girl and a five-year-old boy. He received a one-year sentence for entering a building with unlawful intent, with the first 23 days to be served in Avalon and the remaining suspended. For the assaults, Respondent received 90-day sentences, with part in the custody of Avalon and part suspended, to run concurrently with the sentence for entering with unlawful intent. ¶2 On November 10, 2008, we issued an Order of Interim Suspension. We subsequently referred the matter to a Professional Responsibility Tribunal, because the probable cause affidavit in the Pawnee County felony case indicated that Respondent (1) took payment, at least partially, from a client in the form of Oxycodone, (2) received payment for legal services in the form of drugs on other occasions, and (3) occasionally took sexual favors from women for payment of legal fees.

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¶3 We also specially noted the Tulsa County misdemeanor convictions stemmed from misconduct occurring less than three months after this Court disciplined Respondent for prior criminal misconduct. State ex rel. Oklahoma Bar Ass’n v. Wilburn (Wilburn I), 2006 OK 50, 142 P.3d 420. In Wilburn I, we publicly censured Respondent on June 26, 2006, for his inappropriate touching of two Tulsa County Courthouse female security guards in February 2004. Respondent entered guilty pleas to two misdemeanor charges of outraging public decency stemming from this incident and received concurrent one-year sentences on each charge. He was also ordered to perform forty hours of community service. ¶4 The regulation of licensure, ethics, and discipline of legal practitioners is a nondelegable, constitutional responsibility solely vested in this Court in the exercise of our exclusive Jurisdiction. State ex rel. Oklahoma Bar Ass’n v. Albert, 2007 OK 31, 163 P.3d 527. This Court will conduct a de novo review of the record to determine if misconduct has occurred and what discipline is appropriate. State ex rel. Oklahoma Bar Ass’n v. Garrett, 2005 OK 91, 127 P.3d 600. ¶5 To impose appropriate discipline, the record must be sufficient for this Court to conduct a thorough inquiry into essential facts. State ex rel. Oklahoma Bar Ass’n v. Donnelly, 1992 OK 164, 848 P.2d 543. The record in this case includes transcripts of the mitigation hearing on March 25, 2009, where Respondent failed to appear, and a supplement to the record summarizing that Respondent appeared at the Bar Association the next day. It also contains the transcript with exhibits of the continuation of the mitigation hearing on April 3, 2009, and the Trial Panel Report. We find this record to be adequate for our independent, non-deferential examination. State ex rel. Oklahoma Bar Ass’n v. Burns, 2006 OK 75, 145 P.3d 1088. ¶6 The record discloses that Respondent sought a continuance of the first mitigation hearing set February 27, 2009, representing that counsel for Complainant had no objection and alleging that a medical condition prevented him from attending any proceedings. The hearing was rescheduled to March 25, 2009, and Respondent failed to appear. ¶7 On March 26, 2009, Respondent appeared at the Oklahoma Bar Association office to explain that he had his dates mixed up and Vol. 81 — No. 8 — 3/20/2010

offered some documentation relating to his medical and mental health treatment. The mitigation hearing was reset for April 3, 2009. Following the April 3 hearing, the PRT concluded that there was no conclusive evidence that Respondent had a valid medical reason for obtaining continuance of the February 2009 hearing. It also noted that Respondent had made other misrepresentations to the PRT, namely that Complainant did not object to a continuance. Complainant did object to the initial motion for a continuance and sent Respondent a letter that it would object unless there was some verifiable proof that Respondent had a medical condition that would not allow him to attend the February 27 hearing. Respondent admitted to the PRT that he had no basis for representing that Complainant had no objection. ¶8 In attempting to explain his alcoholism and substance abuse problems, Respondent testified that he continues to drink “on occasion” and that he only attended AA meetings “when he needs it.” The PRT found that Respondent had a substance abuse problem and that he continued to abuse alcohol and other substances, and that he attempted to excuse his behavior due to his addiction. The PRT found that Respondent also failed to show a diligent attempt to manage and control his bipolar disorder. ¶9 The PRT determined that Respondent’s most recent felony and misdemeanor convictions clearly subjected him to discipline.1 The PRT also considered Respondent’s previous public censure in Wilburn I, as well as a private letter of censure or warning in 1990 or 1991 for neglect in his representation in an immigration matter. The PRT concluded Respondent’s actions fell woefully short of being rehabilitated, and recommended suspension from the practice of law for two years and one day. Upon de novo review, we agree with these findings, and believe suspension is warranted. We likewise determine that the appropriate amount of time for suspension is two years and one day. ¶10 This Court may properly consider Respondent’s prior discipline for purposes of enhancement of discipline. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2003 OK 34, 66 P.3d 420. This Court notes that Respondent’s offenses have not been minor. The Oklahoma Bar Association previously sent Respondent a private letter of censure for neglect in the early 1990s. He was later

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publicly censured in Wilburn I on June 27, 2009, for convictions of misdemeanor charges for outraging public decency that were reduced from felony sexual battery counts. Less than three months later, on September 9, 2009, Respondent committed misconduct that included assault and battery on children resulting in further misdemeanor convictions. ¶11 Respondent has offered no evidence in mitigation as to his reputation as an attorney. Respondent continues to drink alcohol and abuse other substances and has shown a lack of judgment and repeated indifference to the law. At the hearing before the PRT, Respondent was asked if he wanted the panel and this Court to give him a third chance. Respondent responded by stating “yes, because that’s what life is sir. If you make a mistake today, you’ll learn from it. You make a different mistake tomorrow, you’ll learn from that one. Life is about mistakes and getting a second chance to not make it.” ¶12 This Court finds by Respondent’s own testimony that he does not recognize his problems and that he does not seek and/or cooperate in treatment except on the occasions where he thinks “he needs it.” While not bound by the recommendations of the PRT, this Court agrees that Respondent’s actions have fallen woefully short of being rehabilitated. We find that he has failed to take any meaningful steps to address and resolve his addictions and their adverse impact on his fitness to practice law. ¶13 We have reviewed the record before us and find that Respondent’s criminal convictions and other evidence constitute clear and convincing evidence of Respondent’s unfitness to practice law. We adopt the recommendation of the PRT for a suspension of a period of two years and one day from the date this opinion becomes final. Respondent is further ordered to pay the costs of this proceeding in the amount of $711.09, within thirty days of the date this opinion becomes final. ¶14 In the event Respondent seeks reinstatement, it will be conditioned upon his continued sobriety, as it is essential to his rehabilitation. See State ex rel. Oklahoma Bar Ass’n v. Briery, 1996 OK 45, ¶14, 914 P.2d 1046, 1050; see also State ex rel. Oklahoma Bar Ass’n v. Rogers, 2006 OK 54, ¶21, 142 P.3d 428, 436 The burden is on Respondent to participate in such programs as Alcoholics Anonymous or Lawyers Helping Lawyers 702

should he choose to regain membership to the Bar. Id. RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY; RESPONDENT ORDERED TO PAY COSTS. ¶15 EDMONDSON, C.J., HARGRAVE, OPALA, KAUGER, WINCHESTER, COLBERT, and REIF, JJ., concur. ¶16 WATT, J., concurring in part; dissenting in part. While I concur in the imposition of discipline, I would disbar this respondent. ¶17 TAYLOR, V.C.J., dissenting. I would disbar this felon. 1. See Title 5 O.S. Supp. 2007, Ch. 1, App. 1-A: Rule 7.1 states: A lawyer who has been convicted or has tendered a plea of guilty or nolo contendere pursuant to a deferred sentence plea agreement in any jurisdiction of a crime which demonstrates such lawyer’s unfitness to practice law, regardless of whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial, shall be subject to discipline as herein provided, regardless of the pendency of an appeal. (Emphasis added.) Rule 7.2 states: The clerk of any court within this State in which a lawyer is convicted or as to whom proceedings are deferred shall transmit certified copies of the Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and judgment and sentence of conviction to the Chief Justice of the Supreme Court and to the General Counsel of the Oklahoma Bar Association within five (5) days after said conviction. The documents may also be furnished to the Chief Justice by the General Counsel. Such documents, whether from this jurisdiction or any other jurisdiction, shall constitute the charge and be conclusive evidence of the commission of the crime upon which the judgment and sentence is based and shall suffice as the basis for discipline in accordance with these rules. (Emphasis added.)

2010 OK 24 PATRICIA L. PARHAM, Petitioner/Appellee, v. STEVEN M. PARHAM, Respondent/ Appellant. No. 107,281. March 16, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY HONORABLE BARRY L. HAFAR, TRIAL JUDGE ¶0 The trial court denied Husband’s motion to modify the support alimony and child support provisions of the parties’ 2007 divorce decree. The trial court ruled on the motion by way of summary judgment. The trial court concluded the parties’ decree was a consent decree that could not be modified without the mutual consent of the parties. Husband appealed and this

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Court retained the appeal. Upon de novo review, we reverse and remand. REVERSED AND REMANDED. Lauren LeBlanc Day, Newalla, OK, and Jennifer E. Irish, Edmond, OK, Attorneys for Appellee. James A. Slayton, Oklahoma City, OK, Attorney for Appellant. REIF, J.: ¶1 This case concerns a dispute over the support alimony and child support provisions in the parties’ 2007 divorce decree. These provisions state: The Respondent should be and is hereby ordered to pay spousal support to the Petitioner of $4,000.00 per month for a period of ninety (90) months (7½ years). The Respondent’s payments shall commence on the first day of February, 2007, and shall continue on the first day of each month thereafter until the total amount of $360,000.00 be paid in full. These payments of support alimony shall terminate upon the death of either party, upon the Petitioner’s remarriage, or as otherwise provided by Oklahoma statute. The Respondent should be and is hereby ordered to pay to the Petitioner child support in the amount of $5,000 per month. The Respondent’s child support payments shall be made on the first day of each month beginning February 1, 2007, and continuing until the youngest child reaches the age of eighteen or graduates high school during his eighteenth year, whichever occurs later, or until further order of this Court. The dispute centers on a motion filed by Husband Steven Parham seeking to modify the amount of support alimony and child support. The motion alleged change of circumstances as the ground for modifying these support obligations under statutory law. ¶2 Wife Patricia Parham opposed the modification of these obligations on grounds that (1) the decree was a consent decree that could only be modified by mutual consent and (2) the only modification of support alimony and child support allowed under the express language of the decree was termination of the respective obligations. Wife asserted she had not agreed to any modification of the decree since it Vol. 81 — No. 8 — 3/20/2010

became final and argued modification without mutual consent was forbidden by Stuart v. Stuart, 1976 OK 107, 555 P.2d 611. ¶3 In response, Husband contended that Wife’s characterization of the decree as a “consent decree” was a legal conclusion which he disputed. Husband argued in the alternative that even if the decree was a “consent decree,” (1) both the support alimony provision and the child support provision contain language that contemplate and allow for modification of these provisions and (2) the parties’ express agreements concerning “termination” of the respective obligations do not preclude “modification” of the obligations otherwise allowed by law. Husband relied on Dickason v. Dickason, 1980 OK 24, 607 P.2d 674. ¶4 The parties presented these issues to the trial court through pleadings and briefs under summary judgment procedure. The trial court ruled the decree was a consent decree because its introductory paragraph stated that “the Court ...incorporates the parties’ agreement herein.” The trial court further ruled that “the specific language used in the Decree of Dissolution of Marriage providing for the modification/termination of the child support and support alimony [indicates] the intent of the parties was to provide specific circumstances for the modification/termination of the child support and support alimony.” The trial court concluded that “the parties agreed, and contracted, to [these] specific terms for the modification/termination of the child support and support alimony [making such obligations] not subject to modification without the consent of both parties thereto [per Stuart v. Stuart].” ¶5 Husband timely appealed this judgment, basically re-urging the points he presented on summary judgment. Husband also asserted that there is a triable issue concerning the parties’ intent with respect to modification of support alimony and child support that precludes summary judgment. ¶6 Wife filed a motion for this Court to retain this appeal, citing a conflict between the rule in the Stuart case and the rule in the Dickason case. In Stuart, a plurality of this Court said a consent decree is not subject to modification without consent of both parties thereto. See Stuart, 1976 OK 107, ¶¶ 14, 15, 555 P.2d at 615. In Dickason, this Court unanimously held “When a spousal agreement is . . . incorporated in the decree, the rights which the parties have there-

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under merge into that decree . . . . [and are thereafter] governed and become enforceable as a judgment [including termination and modification].” Dickason, 1980 OK 24, ¶ 9, 607 P.2d at 677 (footnote omitted). Wife asks this Court to hold that Dickason does not apply to cases like the case at hand in which the parties expressly limited modification/termination to agreed instances. ¶7 This Court granted Wife’s motion to retain this appeal by order of the Chief Justice entered on August 25, 2009. Upon review, we agree that the Stuart and Dickason cases need to be reconciled, but not in the way suggested by Wife. Furthermore, our de novo review of the summary judgment record leads us to conclude that the trial court erred in ruling that the support obligations in question were not subject to modification.1 ¶8 We begin by noting that the trial court erred by treating “modification” and “termination” as equivalent actions taken by a court with respect to a judgment. To be sure, both involve changing a judgment, but that is where the similarity ends. ¶9 “Termination” means to abrogate so much of an obligation as remains unperformed; that is, it ends the unperformed remainder. See F&M Drilling Co. v. M&T Oil Co., 1943 OK 166, ¶¶ 0, 5, 137 P.2d 575, 577 (syllabus 1); M&W Masonry Const. v. Head, 1976 OK CIV APP 34, ¶ 14, n.2, 562 P.2d 957, 961. “Modification” refers to a process by which new terms are sought to be added to a judgment or old ones changed, even though the general purpose and legal effect of the decision remain intact. Tate v. Tate, 1996 OK 17, ¶ 3, 912 P.2d 320, 322 (citing Cartwright v. Atlas Chemical Industries, 1981 OK 4, ¶ 8, 623 P.2d 606, 610 (footnotes omitted)). More simply put, “’modification’ is an alteration in the terms of the adjudicated obligation.” Cartwright, 1981 OK 4, ¶ 8, 623 P.2d at 610. ¶10 This distinction between termination and modification of an obligation is also recognized in the statutes that govern support alimony and child support obligations in divorce decrees. The statutory conditions for termination of support alimony are found in 43 O.S. Supp. 2008 §134(B)2, while statutory authority to modify support alimony is set forth in 43 O.S. Supp. 2008 §134(D)3. Similarly the statutory provisions relating to the duration of child support are found in 43 O.S. Supp. 2008 §112(E)4 and 70 O.S. Supp. 2007 §11-103.6, while statu704

tory authority to modify child support is set forth in 43 O.S. §118(E)(16)(a)(1)5. ¶11 In the case at hand, the parties’ agreement concerning support alimony and child support dealt only with termination of these obligations. The decree is silent concerning the subject of modification and statutory authority to modify the amount of these obligations. This Court has recently held that a decree remains subject to statutory conditions for changing a support obligation set by decree where “It contains no language relating to the [statutory conditions] or indicating that the statutorily based ... conditions ... are waived.” In re Marriage of Burrell, 2007 OK 47, ¶ 16, 192 P.3d 286, 291. ¶12 The case of Burrell concerned an agreed Georgia divorce decree that had been domesticated in Oklahoma for enforcement. This decree provided that support would continue until wife’s death, but was silent concerning continuation or termination of support in the event wife remarried. Remarriage was a statutory condition for terminating support under both Georgia and Oklahoma law. This Court rejected the contention that the statutory condition of remarriage had been excluded as a condition for terminating support simply because the decree provided the single condition of death for terminating support. This Court held that remarriage remained a condition to terminate support, because the decree “contains no language relating to wife’s remarriage or indicating that the statutorily based termination conditions of 43 O.S.2001 § 134(B) are waived.” Id. at ¶ 16, 192 P.3d at 291 (emphasis omitted). ¶13 Burrell applies and reaffirms the holdings of Dickason and Batchelor v. Batchelor, 1978 OK 135, 585 P.2d 1120. In Dickason, there was no provision in the parties’ agreement or the decree that expressly excluded the agreed alimony award from becoming terminable on death or remarriage as provided by statute. The Court said that “[t]o escape the incidence of general law, [applicable to the class of judgments into which it falls][a divorce] decree must not be silent as to the parties’ intent vis-àvis the law that applies to them.” Dickason, 1980 OK 24, ¶ 10, 607 P.2d at 677 (footnote omitted). The Court held: “An intent to modify applicable law by contract is not effective unless the power is expressly exercised.” Id. ¶14 In Batchelor, there was similarly no mention in the parties’ agreement or decree concerning the remarriage of wife and its effect on

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the payment of support alimony. The Court held “where a consent Decree incorporates a property Agreement of the parties, providing for the payment of . . . support, the support payments come under the [statutory conditions for termination] and are terminable in accordance [there]with . . . unless the instruments clearly express otherwise.” Batchelor, 1978 OK 135, ¶ 12 , 585 P.2d at 1123. ¶15 While these cases deal with the parties’ failure to address or to agree to avoid statutory termination provisions, their analysis and reasoning apply with equal force to the statutory modification provisions. This is so because both comprise the general law applicable to the class of judgments known as divorce decrees and are part of “the law which generally governs the class of obligations” set by divorce decrees. Dickason, 1980 OK 24, ¶ 10, 607 P.2d at 677. Like the decree in Burrell, the decree in the case at hand contains no language relating to modification of the obligations or indicating that statutorily based modification is waived. ¶16 We are cognizant that the foregoing authority is inconsistent with the observation in Stuart that “[i]f the parties had intended the [support] payments to be terminable on death or remarriage . . . language to that effect would have been included in either the Agreement or Decree.” Stuart, 1976 OK 107, ¶ 16, 555 P.2d at 615. However, this observation was made in reference to “support payments” that were “intended to be alimony payments in lieu of property division, and thus not subject to termination upon [the statutory condition of] remarriage.” Batchelor, 1978 OK 135, ¶ 9, 585 P.2d at 1123 (emphasis added). That is, the so called “support payments” in Stuart were actually property division installments which were not subject to statutory termination or modification by their very nature without regard to the parties’ failure to address termination or modification in the agreement or decree. ¶17 When viewed in the context of its facts and dispositive issue, the Stuart case cannot be read to support an absolute rule forbidding consent decrees from being modified without the parties’ mutual consent as Wife contends. Consideration of the facts and dispositive issue likewise reveals that statements about agreed upon “alimony” not being subject to modification are simply dicta.6 Even if the case at hand could serve as the vehicle for adoption of the rule urged by Wife, this Court believes that the better rule is for the parties to expressly address termiVol. 81 — No. 8 — 3/20/2010

nation and modification, and to clearly express that they do not intend for a particular support obligation to be subject to statutory provisions governing termination or modification.7 ¶18 In the case at hand the decree reflects the parties did agree upon special conditions for the termination of support alimony and child support. While those special conditions are not directly at issue, they reflect the parties’ express choice concerning termination of the support obligations and, as such, are enforceable in lieu of the statutory conditions. As concerns modification of the amount of these support obligations, the decree does not similarly provide special conditions for their modification or address the statutory conditions governing modification of the amount of support alimony and child support. If the parties wished to apply special conditions for modification of support alimony or child support, they could have done so. As a consequence, the decree at issue remains subject to such statutory conditions and it was error for the trial court to grant summary judgment determining the decree could not be modified in this regard. ¶20 The summary judgment is reversed. This case is remanded to the trial court to hear and to determine Husband’s motion to modify. REVERSED AND REMANDED. ¶21 ALL JUSTICES CONCUR. 1. An order that grants a summary judgment disposes solely of legal questions; it is reviewable under a de novo standard whereby an appellate court exercises independent and non-deferential authority to re-examine a trial court’s legal rulings. Manley v. Brown, 1999 OK 79, ¶ 22, n.30, 989 P.2d 448, 455. 2. 43 O.S. Supp. 2008 §134(B) states: The court shall also provide in the divorce decree that upon the death or remarriage of the recipient, the payments for support, if not already accrued, shall terminate. The court shall order the judgment for the payment of support to be terminated, and the lien released upon the presentation of proper proof of death of the recipient unless a proper claim is made for any amount of past-due support payments by an executor, administrator, or heir within ninety (90) days from the date of death of the recipient. Upon proper application the court shall order payment of support terminated and the lien discharged after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable, provided the recipient commences an action for such determination, within ninety (90) days of the date of such remarriage. 3. 43 O.S. Supp. 2008 §134(D) states: Except as otherwise provided in subsection C of this section, the provisions of any divorce decree pertaining to the payment of alimony as support may be modified upon proof of changed circumstances relating to the need for support or ability to support which are substantial and continuing so as to make the terms of the decree unreasonable to either party. Modification by the court of any divorce decree pertaining to the payment of alimony as support, pursuant to the provisions of this subsection, may extend to the terms of the payments and to the total amount awarded; provided however, such modification shall only have prospective application. 4. 43 O.S. Supp. 2008 §112(E) states:

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Except as otherwise provided by Section 112.1A of this title, any child shall be entitled to support by the parents until the child reaches eighteen (18) years of age. If a child is regularly enrolled in and attending high school, as set forth in Section 11-103.6 of Title 70 of the Oklahoma Statutes, other means of high school education, or an alternative high school education program as a full-time student, the child shall be entitled to support by the parents until the child graduates from high school or until the age of twenty (20) years, whichever occurs first. Full-time attendance shall include regularly scheduled breaks from the school year. No hearing or further order is required to extend support pursuant to this subsection after the child reaches the age of eighteen (18) years. 5. 43 O.S. Supp. 2008 §118(E)(16)(a)(1) provides: The child support guidelines are as follows: .... Child support orders may be modified upon a material change in circumstances which includes, but is not limited to, an increase or decrease in income, changes in actual child care expenses, changes in medical or dental insurance, or when one of the children in the child support order reaches the age of majority or otherwise ceases to be entitled to support pursuant to the support order. Subsequent to the request for modification in this case, the Legislature amended § 118, and added nine more sections - § 118A, § 118B, § 118C, § 118D, § 118E, § 118F, § 118G, § 118H, and § 118I, all with the effective date of July 1, 2009. 6. Wife points out that several cases decided since Dickason have cited Stuart as authority for enforcing support alimony and child support provisions exactly as agreed upon by the parties. In particular, Wife points to Whitehead v. Whitehead, 1999 OK 91, 995 P.2d 1098, which, in turn, is extensively cited in Holleyman v. Holleyman, 2003 OK 48, 78 P.3d 921. However, each of these cases deal with an agreement by the parties to provide support obligations that exceed those required by law, and not whether standard alimony and child support are subject to statutory provisions for termination and modification. 7. We are cognizant that an express waiver of statutory rights in a consent decree is not required, but the parties must nonetheless demonstrate intent to avoid the strictures of a particular statute. Kitteredge v. Kitteredge, 1995 OK 30, ¶ 5, 911 P.2d 903.

2010 OK 26 DARLA K. PRICE, Individually, and as the Surviving Spouse of PERRY KEITH PRICE, Deceased, Plaintiff/Appellant, v. CATHRYN L. HOWARD, CYNTHIA LYNN HENNING and CHARLES J. HOWARD, JR., Independent Co-Executors of the Estate of CHARLES JAMES HOWARD, M.D., Deceased; The Estate of CHARLES JAMES HOWARD, M.D., Deceased; CATHY ANN OLSEN, Independent Administratrix of the Estate of JON PETER OLSEN, Deceased; The Estate of JON PETER OLSEN, Deceased; DAVID HOBZA, and SERVICENTER, INC., Defendants/Appellees. No. 105,943. March 16, 2010 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY ¶0 After recovering for her husband’s workrelated death under the Workers’ Compensation Act (Compensation Act), 85 O.S. 2001 §1, et seq., the plaintiff/appellant, Darla K. Price (Mrs. Price/wife), filed a wrongful death suit in district court naming her husband’s employer, ServiCenter, Inc. (ServiCenter/employer/ defendant/appellee), and a variety of individuals and their estates as defendants. All defen706

dants/appellees filed motions for summary judgment claiming protection from suit in district court by the exclusive remedy provision, 85 O.S. Supp. 2005 §12, of the Workers’ Compensation Act. The trial court sustained the motions for summary judgment in toto. Having retained the cause, we hold that: 1) the evidence is insufficient under Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572 to subject the employer to liability outside that provided by the Workers’ Compensation Act; 2) material questions of fact exist as to whether the employer was engaged in a joint venture sufficient to extend the protections of Oklahoma’s workers’ compensation law to other members of the alleged agreement; and 3) contested facts concerning the status of employee versus independent contractor preclude an award of summary judgment to the alleged employee for purposes of allowing him the protections of the Workers’ Compensation Act. AFFIRMED IN PART; REVERSED IN PART; REMANDED. James A. Scimeca, Derek K. Burch, Oklahoma City, Oklahoma, John Jay Carwile, Tulsa, Oklahoma, for plaintiff/appellant, Darla K. Price. Galen Lee Brittingham, Andrew G. Wakeman, Mark R. Mcphail, Oklahoma City, Oklahoma, Jamie Alison Rogers, Tulsa, Oklahoma, for defendants/appellees, Cathryn L. Howard, Cynthia Lynn Henning, and Charles J. Howard, Jr. David C. Johnston, Oklahoma City, Oklahoma, for defendants/appellees, Cathryn L. Howard, Charles J. Howard, Jr., and Cathy Ann Olsen. Rupert J. Anton, Oklahoma City, Oklahoma, Katherine A. Staton, Dallas, Texas, for defendant/appellee, David Hobza. Bradley Donnell, Rodney Hunsnger, McAfee & Taft, Oklahoma City, Oklahoma, Elder A. Thomas, Jr., Oklahoma City, Oklahoma, Walter D. Haskins III, Tulsa, Oklahoma, for defendant/appellee, ServiCenter, Inc. WATT, J.: ¶1 We retained this cause to answer two questions: 1) whether the various defendants/appellees are entitled to the protection of the exclusive remedy provision1 of the Oklahoma Workers’ Compensation Act; and 2) if so, whether the actions of the respective parties were sufficient to take them outside that protection under this

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Court’s opinion in Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572. ¶2 The employee, ServiCenter’s President, and a majority stockholder in the company were killed when the airplane crashed. There is no evidence that the pilot or any of the other passengers on the plane had any intention of harming themselves or others. Under these facts and assuming ServiCenter was aware that the airplane was carrying passengers in violation of its temporary flight restrictions,2 that it was overweight, and that it took off in foul weather, the record does not demonstrate that the employer understood there was a substantial certainty of injury. Therefore, we determine that the evidence is insufficient under Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572 to subject the employer to liability outside that provided by the Workers’ Compensation Act. Nevertheless, material questions of fact exist as to whether the employer was engaged in a joint venture sufficient to extend the protections of Oklahoma’s workers’ compensation law to other members of the alleged agreement and to a third party claiming status as a coemployee under the Act. FACTUAL AND PROCEDURAL HISTORY ¶3 On October 15, 2006, an airplane crash took the life of Perry Price (Price/employee). It is undisputed that: 1) Price was an employee of ServiCenter; and 2) on the day of the plane crash, he was going to the convention as a part of that employment at the request of Wayne Radco, ServiCenter’s President.3 Along with Price and Radko, Charles Howard, M.D. (Howard), a major stockholder in ServiCenter, and John Olsen (Olsen), Howard’s son-in-law and the registered owner of the plane, also died in the crash. It is also undisputed that ServiCenter had done significant modifications to the plane. It is contended that the modifications and refurbishments, including the use of an improved experimental five-bladed propeller and the addition of slipper fuel tanks, arose from an agreement among Radco, on the behalf of ServiCenter, Howard, and Olsen to utilize the modified aircraft as a marketing tool to current and prospective customers of ServiCenter in an attempt to attract additional business.4 ¶4 After recovering workers’ compensation death benefits, Mrs. Price filed suit in district court on May 29, 2007 naming as defendants the Howard and Olsen estates, and an individual, David Hobza. Price alleged that the Vol. 81 — No. 8 — 3/20/2010

individually named defendants’ negligence was the proximate cause of her husband’s death. The first amended petition was filed on June 21, 2007. Mrs. Price added ServiCenter as a defendant, claiming the employer was negligent in performing maintenance and in making repairs and modifications to the plane. Mrs. Price also contended that, when the maintenance, repairs, and modifications were made, ServiCenter had assumed a persona independent of its employer/employee relationship with her husband.5 ¶5 On February 1, 2008, Hobza filed a motion for summary judgment. Hobza alleged that, when the plane crashed, he was an employee of the ServiCenter entitled to the same protections under the Workers’ Compensation Act as his employer. Three days later, ServiCenter filed a similar motion claiming immunity from suit in district court pursuant to the exclusivity provision of the Workers’ Compensation Act. Thereafter, the Howard and Olsen estates also sought summary judgment claiming that, at the time of the accident, ServiCenter, Howard, and Olsen were engaged in a joint venture to develop and market the modification/refurbishment package implemented on the plane. Howard and Olsen contended that, as joint venturers with ServiCenter, they were immune from suit under the exclusive remedy provisions of the Workers’ Compensation Act. ¶6 After conducting an extensive hearing on April 11, 2008, the trial court entered judgment in favor of each of the defendants/appellees which was filed on May 9th. Price filed a timely appeal and requested that the cause be retained. The request was granted on August 22, 2008. Although the cause stood ready for assignment on that date, it was not received in these chambers until October 22, 2009. Standard of Review on Summary Judgment ¶7 On summary judgment all inferences and conclusions to be drawn from the underlying facts contained in the record are to be considered in the light most favorable to the party opposing the motion.6 Even when the basic facts are undisputed, motions for summary judgment should be denied, if, under the evidentiary materials, reasonable individuals could reach different factual conclusions.7 The trial court granted summary judgment based on a legal determination that all the defendants/appellees were entitled to the protection of the exclusive remedy provision of the Work-

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ers’ Compensation Act. The district court concluded it had no jurisdiction to proceed. Jurisdictional issues present questions of law8 which this Court reviews de novo.9 The limited exception provided under Parrett v. UNICCO Service Center to the exclusive remedy protections afforded to employers under the Workers’ Compensation Act. ¶8 Regardless of fault, 85 O.S. Supp. 2006 §11 of the Workers’ Compensation Act places the duty upon employers to bear the responsibility for compensating employees for accidental personal injuries arising out of and in the course of employment.10 Section 12 provides in pertinent part: “The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees . . . at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person. . . .” The statutory language makes it clear that the Legislature intended that accidental injuries will fall within the confines of the Workers’ Compensation Act and that an employer’s liability for these injuries is exclusive under the Act.11 Each of the defendants/appellees seeks protection from suit in district court under §12’s exclusive remedy provision. ¶9 Price invokes the intentional tort exception to workers’ compensation liability as outlined by this Court in Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572. The employee in Parret died as a result of injuries occurring when he was electrocuted while replacing emergency lights. We determined that tort liability could be imposed upon the employer if the injuries were the result of actions the employer knew were substantially certain to cause injury. ¶10 Before tort liability may be imposed under Parret’s substantial certainty test, the employer’s conduct must amount to an intentional tort; and, the employer must have: 1) desired to bring about the worker’s injury; or 2) acted with the knowledge that such injury was substantially certain to result from the employer’s conduct. To remove the injured worker’s claim from the exclusive remedy provision of the Workers’ Compensation Act and 708

allow the worker to proceed in district court, nothing short of a demonstration of the employer’s knowledge of the substantial certainty of injury will suffice. The employer’s cognizance of a foreseeable risk, high probability, or substantial likelihood of injury are insufficient to impose tort liability. ¶11 a) THE RECORD IS DEVOID OF ANY EVIDENCE THAT THE SERVICENTER/EMPLOYER BELIEVED THAT THE PLANE ON WHICH THE EMPLOYEE WAS TRANSPORTED WAS SUBSTANTIALLY CERTAIN TO CRASH. ¶12 Mrs. Price contends that it was error to grant summary judgment to ServiCenter on multiple grounds. She does not assert that the employer desired to bring about her husband’s injury. Nevertheless, she does argue that ServiCenter had information sufficient to fall within the second exception to the exclusive remedy provision of the Workers’ Compensation Act outlined under Parret. The wife asserts that a question of fact exists as to whether ServiCenter was substantially certain that her husband would be injured while in flight. ¶13 Having paid death benefits under the Workers’ Compensation Act, ServiCenter, as Price’s employer, claims the protection of the Act’s exclusive remedy provision, 85 O.S. Supp. 2005 §12.12 The employer contends that no one could reasonably determine that it wanted to see its President, a major stockholder, or Price die in a crash or that it was substantially certain that the crash was likely. We agree with ServiCenter’s contentions. ¶14 The employee was given the assignment to travel on the plane on company business and was accompanied on the trip by ServiCenter’s President, Wayne Radco (Radco).13 Radco both directed Price to fly to Florida on the plane and also died in the same crash. Earlier, aircraft fitted with the experimental fivebladed propellers had traveled successfully to remote convention locations.14 The airplane had flown some twenty to thirty hours while fitted with the experimental five-bladed propellers and the slipper tanks without incident. It had also been airborne with representatives from the company through which ServiCenter hoped to market the propellers.15 Nevertheless, the plane had not flown with the additional tanks fueled.16 ¶15 There is evidence that David Hobza (Hobza), a defendant/appellee, had knowl-

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edge that the plane was approximately one thousand (1,000) pounds too heavy at takeoff and that he passed that information along to the plane’s pilot, Olsen. Testimony indicated that takeoff during a rainstorm and the overweight condition of the plane “substantially increased the likelihood that complications could occur.”17 It also appears that Hobza was aware that Price should not have been included as a passenger pursuant to restrictions imposed on the aircraft under its experimental operating limitations.18 At a management meeting following the crash, Hobza was: accused of being reckless in allowing the plane’s take-off; told he should have done anything necessary to have stopped the flight; and terminated.19 Hobza was rehired at a stockholders’ meeting in February, 2007. ¶16 There is nothing in the record indicating that Radco, ServiCenter’s President and Price’s supervisor, was ever advised that there were facts indicating the flight would not be safe. Even if we were to impute actual knowledge to ServiCenter,20 the record is devoid of evidence that any of the parties who occupied the plane that day appreciated the risk or were intent on committing suicide by boarding the plane for takeoff. Undoubtedly, the employer’s conduct in allowing the plane to take flight may have been reckless. Nevertheless, absent some evidence of impaired judgment, none of which exists here, we do not expect individuals to engage in self-destructive behavior.21 Furthermore, violation of government safety regulations, even if wilful and knowing, does not rise to the level of an intentional tort22 or an actual intent to injure.23 ¶17 Establishing that an employer has acted in a manner resulting in an employee’s injuries being substantially certain presents a formidable barrier to recovery in tort.24 Under the facts presented, we cannot say that the employer’s conduct amounted to an intentional tort or that the employer desired to bring about the worker’s injury or acted with the knowledge that such injury was substantially certain to result from the employer’s conduct. Therefore, we hold that the evidence is insufficient under Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572 to subject the employer to liability outside that provided by the Workers’ Compensation Act. ¶18 b) THE EVIDENCE PRESENTS A QUESTION OF FACT AS TO WHETHER THE SERVICENTER, HOWARD [A Vol. 81 — No. 8 — 3/20/2010

MAJORITY STOCKHOLDER], AND OLSEN [THE PLANE’S PILOT], WERE ENGAGED IN A JOINT VENTURE SUFFICIENT TO ENTITLE THE STOCKHOLDER AND THE PILOT TO THE PROTECTIONS OF THE EXCLUSIVE REMEDY PROVISIONS OF THE WORKERS’ COMPENSATION ACT. ¶19 Mrs. Price contends that her husband died as a result of Howard’s and Olsen’s negligence in piloting the plane and in failing to adhere to the aircraft’s design and experimental operating limitations. She also asserts that there is no evidence of an agreement among the ServiCenter, Howard, and Olsen arising to that of a joint venture. Therefore, Price argues there is no basis upon which to extend the protection of the exclusive remedy provisions of the Workers’ Compensation Act to either Howard or Olsen. ¶20 In contrast, Howard and Olsen argue that they, along with ServiCenter, were involved in a joint venture for the purpose of developing and marketing the five-bladed propellers, interior modifications, and other improvements. As members of a joint venture with the employer, Howard and Olsen claim the protection of the exclusive remedy provisions of the Workers’ Compensation Act. The nature of a joint venture. ¶21 A joint adventure is a special combination of two or more persons where, in some specific venture, a profit is jointly sought without any partnership or corporate designation; and, by special agreement, the parties may limit their respective profits and provide which particular part of the expenses each should bear before participation in any profit.25 Corporations have the power to enter into joint ventures with individuals.26 An employee engaged in the activities of a joint venture is an employee of each of the joint venturers.27 ¶22 While the chief characteristic of a joint venture is the seeking of joint profits from a transaction,28 no single factor is sufficient to establish that parties are engaged in a joint venture. Three requisite elements exist. They are: 1) a joint interest in property; 2) an express or implied agreement to share profits and losses of the venture; and 3) action or conduct showing cooperation in the project.29 The existence of a joint venture presents a question of fact.30

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Disputed material facts. ¶23 Both Howard and Olsen died in the crash along with Price’s husband. Howard was an officer and director of ServiCenter, owning approximately forty-nine percent (49%) of the stock in the company. Howard purchased the aircraft from ServiCenter in 2005. His son-inlaw, Olsen, was the plane’s registered owner. Howard and Olsen assert that they, along with ServiCenter, agreed to cooperate in obtaining a supplemental type certificate (STC)31 for the five-bladed propellers to promote sales through the company. They also insist that Radco, ServiCenter’s President, agreed that modifications such as the propellers, the addition of slipper tanks, and other modifications would be incorporated into Olsen’s plane for purposes of demonstrating their utility to potential customers. Under the alleged agreement, Howard paid for the parts installed on the airplane; ServiCenter stood the expense of the labor; and, Olsen received the benefit of an upgraded craft for allowing ServiCenter to utilize it to promote sales.32 Presumably, the employer was to benefit from the arrangement by utilizing the aircraft as a demonstration piece for the exclusive rights to sell the five-bladed propellers33 and the stockholder would enjoy the increase in profits from his holdings in the company. ¶24 Although Hobza testified that Howard, in association with the joint venture, would pay only for parts, there is some indication in the record that at least a portion of the modifications made to the plane may not have been included within that agreement and were paid for by Howard, personally.34 Additionally, the record also indicates that ServiCenter, which was to be responsible for only the labor, made at least a $20,000.00 deposit on the propellers installed on the aircraft.35 Furthermore, a board member testified that it was understood that: Hobza had been directed to sell the project involving the experimental propellers; that he was surprised to discover that there had been a renewed effort to market them through the ServiCenter; the project proceeded without his approval; and, he was unaware of any separate entity formed involving the ServiCenter to pursue the propeller project.36 Finally, the decision to proceed with the venture was made without consultation of the entire ServiCenter Board. Nevertheless, Radco had apparent authority to enter such an agreement with Howard and Olsen.37 710

¶25 Howard and Olsen assert the agreement exists while Price argues that there is no evidence of any contract. The evidence involving the alleged agreement is contradictory. It is not for this Court to determine the efficacy of material facts. However, we are charged with looking at those facts in the light most favorable to Price.38 There is disputed evidence of: the existence or the nature of any agreement among ServiCenter, Howard, and Olsen; whether, if an agreement existed, the parties’ actions fell within the contract; and, whether ServiCenter’s President had the authority to bind its principle to a marketing stratagem involving the modifications made to the aircraft. The evidence of a joint venture is contradictory. Therefore, we hold that this cause presents issues of material fact precluding an award of summary judgment entitling Howard and Olsen to the exclusive remedy protections of the Workers’ Compensation Act. ¶26 c) MATERIAL ISSUES OF FACT EXIST AS TO WHETHER HOBZA WAS PRICE’S CO-EMPLOYEE ENTITLED TO THE PROTECTIONS AFFORDED BY THE EXCLUSIVE REMEDY PROVISIONS OF THE WORKERS’ COMPENSATION ACT. ¶27 Mrs. Price argues that Hobza, the individual providing information to the pilot about the overweight condition of the aircraft on the day of the crash, was not a co-employee of her husband but an independent contractor associated with the ServiCenter. As such, she contends Hobza is not entitled to the limited liability protections of the Workers’ Compensation Act. Conversely, Hobza insists that he is a long time ServiCenter employee entitled to the same protections under the Workers’ Compensation Act as his employer.39 Disputed material facts. ¶28 Mayer, held a forty-nine percent (49%) interest in the ServiCenter and prepared the agreement defining the arrangement between the employer and Hobza. The agreement is entitled “Contractor Agreement between the ServiCenter, Inc. And David Hobza” providing in the first paragraph that the document is to serve as “the Contractor agreement . . . between (the ‘Contractor’) and the Servicenter, Inc. . . .”. Mayer testified that the intent of the agreement was for Hobza to act as a contractor for ServiCenter rather than to be considered an employee.40 When Mayer was asked how Hobza should be characterized on the date of the crash, he

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indicated that Hobza could be described as a member of the Board of Directors of the ServiCenter, as their contractor, and as an agent for Jon Olsen.41 This testimony is supported by a document in the record giving Hobza the authority to act as Olsen’s agent to change, modify, and or place the aircraft in the experimental category.42 Despite his statements that ServiCenter, in executing the agreement with Hobza, intended that the relationship be that of independent contractor, he also testified that there were other indicators that the agreement might be construed to be that of employeremployee.43 ¶29 Generally, the question of whether an individual serves as an independent contractor or an employee is for the trier of fact.44 The issue becomes a one of law when no other inference can be drawn from the facts presented other than that the individual serves in the capacity of one or the other.45 The facts here are highly contested. Reasonable people could differ in their implications. Therefore, we hold that this cause presents issues of material fact precluding an award of summary judgment entitling Hobza to the exclusive remedy protections of the Workers’ Compensation Act. CONCLUSION ¶30 On the day of the crash, the flight conditions were not optimum, the plane was flying with more weight than was advisable, and the flight took place in violation of standards set forth in its experimental certificate. Nevertheless, there is nothing in the record to demonstrate that the employer was substantially certain that its employee would be injured. Therefore, the evidence is insufficient under Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572 to subject the employer to liability outside that provided by the Workers’ Compensation Act. However, there are disputed facts which must be resolved by the trier of fact regarding both the existence of a joint venture and the status of employee versus independent contractor. Therefore, we reverse the cause and remand it for proceedings consistent with the provisions of this opinion. AFFIRMED IN PART; REVERSED IN PART; REMANDED. EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WATT, WINCHESTER, COLBERT, REIF, JJ. — concur OPALA, J. — concurring in part Vol. 81 — No. 8 — 3/20/2010

1. Title 85 O.S. Supp. 2005 §12 providing in pertinent part: “The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees . . . at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person. . . .” 2. Mrs. Price’s contention that federal aviation regulations preempt Oklahoma’s workers’ compensation law is unconvincing. In Craft v. Graebel-Oklahoma Movers, Inc., 2007 OK 79, 178 P.3d 170, we held that the Motor Vehicle Safety Act did not preempt the exclusive remedy provisions of Oklahoma’s workers’ compensation law. In so doing, we determined there was neither express nor implied preemption. Title 40 U.S.C. §41713 (1997) prohibits states, political subdivisions, or political authorities of two or more states from enacting or enforcing a law, regulation, or other provision “having the force and effect of law related to a price, route, or service of an air carrier.” Oklahoma’s workers’ compensation provisions do not relate to any of these three factors. Furthermore, even where a regulation does relate to aviation safety, it may not necessarily be preempted by the Act. Center for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910 (9th Cir. 2006); Sakar v. Hageland Aviation Servs., Inc., 609 F.Supp.2d 889 (D.Alaska 2008). Finally, the Fifth Circuit has determined that the Airline Deregulation Act does not preempt a claim for prohibiting retaliation for the bringing of a workers’ compensation claim. Anderson v. American Airlines, Inc., 2 F.3d 590 (5th Cir. 1993). See also, Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996), rehearing and rehearing en banc denied (1996), cert. denied, 519 U.S. 823, 117 S.Ct. 81, 136 L.Ed.2d 39 (1996) [The Federal Aviation Act does not prohibit certain local ordinances even where they relate directly to the operation and landing of aircraft.]; Monroe v. Cessna Aircraft Co., 417 F.Supp.2d 824 (E.D.Tex. 2006) [ Relatives’ claims against a manufacturer for negligence and strict product liability are not impliedly prohibited by the Federal Aviation Act or federal aviation regulations.]; Anderson v. Evergreen International Airlines, 131 Or.App. 726, 886 P.2d 1068 (1994), review denied, 320 Or. 749, 891 P2d 659 (1995) [Congress did not occupy field of aircraft operations and safety, so as to preclude state common-law wrongful discharge action against airline]. 3. Videotaped Deposition of Darla Kay Price, January 4, 2008, Exhibit C to Defendant David Hobza’s Motion and Brief for Summary Judgment, filed on February 1, 2008, providing in pertinent part at pp. 21-24: “. . . Q. All right. And did his job at The ServiCenter require him to travel? A. Like going to these conventions? Q. Yes. A. Yes. . . . Q. All Right. And was he going to the convention as part of his employment with ServiCenter? A. Yes. . . . Q. Do you recall who asked Perry to go on this October 2006 — A. Wayne Radko. . . .” 4. Videotaped Deposition of David E. Hobza, Jr., October 11, 2007, Exhibit 2 to Howard Defendants’ and Olsen Defendants’ Joint Motion for Summary Judgment and Supporting Brief, filed on February 5, 2008 and providing in pertinent part at pp. 92-93: “. . . Q. At what point, or when was the first time you had any discussion with anybody with regard to this plane obtaining an experimental certificate? A. That would have been early on in the program when the decision was made to do all the modifications to this airplane to make it a showpiece airplane and use for advertising of the ServiCenter, that would have been two or three months before. Q. And was that decision made by Jon Olsen? A. Made jointly by Jon Olsen and Dr. Howard and Wayne Radco…” 5. Price’s dual capacity argument is unconvincing. Under the dual persona doctrine, an employer shielded from liability by the workers’ compensation law exclusivity provision may still become liable to the employee if, when inflicting harm, the employer was acting in some different capacity based on whether the employer assumes a second persona which is completely and distinctly independent from its status as an employer. Dyke v. Saint Francis Hosp., Inc., 1993 OK 114, ¶7, 861 P.2d 295. Weber v. Armco, Inc., 1983 OK 53, 663 P.2d 1221 is instructive. The Weber Court held that an employer did not act in a dual capacity simply because it occupied the two-fold position of employer and manufacturer. Here, ServiCenter was in the business of selling airplane parts and making modifications to airplanes. We are not persuaded that it assumed a persona independent as that of an employer in making modifications to the Olsen aircraft, a business activity in which it regularly engaged. Furthermore, Price has previously recovered in

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workers’ compensation. An employee who has two remedies for the same injury and has prosecuted one of them to conclusion is barred from resort to the other remedy. This rule is applicable to compensation claimants who may press a tort remedy. The dual persona doctrine does not sanction multiple recovery through two remedies for the same harm. Dyke v. Saint Francis Hosp., Inc., this note supra. 6. MLC Mort. Corp. v. Sun America Mort. Co., 2009 OK 37, fn. 14, 212 P.3d 1199; Gaines v. Comanche County Medical Hosp., 2006 OK 39, ¶4, 143 P.3d 203, 24 A.L.R.6th 931; Mitchell v. Cox, 1997 OK 139, ¶7, 948 P.2d 317. 7. Gaines v. Comanche County Medical Hosp., see note 6, supra; Barnthouse v. City of Edmond, 2003 OK 42, ¶36, 73 P.3d 840, cert. denied, 540 U.S. 981, 124 S.Ct. 464, 157 L.Ed.2d 371 (2003); Carris v. John R. Thomas & Associates, 1995 OK 33, ¶16, 896 P.2d 522. 8. MLC Mort. Corp. v. Sun America Mort. Co., see note 6, supra; Reeds v. Walker, 2006 OK 43, ¶11, 157 P.3d 100. 9. Welch v. Crow, 2009 OK 20, ¶9, 206 P.3d 599; Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959; Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶7, 951 P.2d 1079. 10. Title 85 O.S. Supp. 2006 §11(A) providing in pertinent part: “Every employer subject to the provisions of the Workers’ Compensation Act shall pay, or provide as required by the Workers’ Compensation Act, compensation according to the schedules of the Workers’ Compensation Act for the disability or death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault as a cause of such injury, and in the event of disability only . . .” 11. Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, ¶12, 23 P.3d 288. 12. Title 85 O.S. Supp. 2005 §12, see note 1, supra. 13. Videotaped Deposition of Darla Kae Price, January 4, 2008, Exhibit C to Defendant David Hobza’s Motion & Brief for Summary Judgment, providing in part at p. 92: “. . . Q Do you recall who asked Perry to go on this October 2006 — A Wayne Radco. . . .” 14. Videotaped Deposition of Russell Allen Hampton, March 25, 2008, Exhibit A to Plaintiff’s Combined Supplemental Objection to the Motions for Summary Judgment of the Defendants, David Hobza, the ServiCenter, Inc., the Howard Defendants and the Olsen Defendants, filed April 3, 2008, providing in pertinent part at p. 50: “Q (By Mr. Burch) Well, it’s the first time it happened, that you - you knew of? A Right. Well, we’ve flown airplanes to these places before. They had did it in 2000 - 2001 or ‘99 or something. They - they had an airplane that they put the five-blade props on and flew to NBAA. I couldn’t tell you who went or anything, I — I just know that, you know, they had gone to NBAA before. Q With — they had flown to an NBAA convention with — A With a five-blade prop before. . . .” 15. Videotaped Deposition of David B. Hobza, Jr., October 11, 2007, Exhibit D to Defendant David Hobza’s Motion & Brief for Summary Judgment, providing in pertinent part at p 110: “. . . Q Where the plane flew for 20 to 30 hours. A Uh-huh. Q With these MT five-bladed props on it. A Okay. Q That 20 to 30 hours, do you know how — over what period of time those 20 to 30 hours were flown? A No, I don’t. I would — I would imagine, and I would be purely speculating, but I would imagine it was over a reasonably short period of time, couple of months, three months, something like that. I know one — one time the — the people from Twin Commander, they were very interested in working with us on the project because they wanted the product to be marketable through the Twin Commander organization. And they came down, brought their engineering people down and the airplane was flown for them just to — so they could experience — measure the noise level difference in the airplane. . . .” 16. Videotaped Deposition of Russell Allen Hampton, March 25, 2008, Exhibit A to Plaintiff’s Combined Supplemental Objection to the Motions for Summary Judgment of the Defendants, David Hobza, the ServiCenter, Inc., the Howard Defendants and the Olsen Defendants, filed April 3, 2008, providing in pertinent part at p. 82: “. . . Q Okay. Certainly, we know that prior to October 15th, 2006, 55JS had never been flown with full primary tanks, as well as full slipper tanks, correct? A Correct. It had never been flown like that. . . .” 17. Videotaped Deposition of Russell Allen Hampton, March 25, 2008, Exhibit A to Plaintiff’s Combined Supplemental Objection to the

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Motions for Summary Judgment of the Defendants, David Hobza, the ServiCenter, Inc., the Howard Defendants and the Olsen Defendants, filed April 3, 2008, providing in pertinent part at p. 88: “ . . . Q . . . You would agree with me that, because this plane took off in the overweight condition it was in, flying in a rainstorm, on October 15th, that substantially increased the likelihood that complications could occur in the flight of this airplane? . . . A Yes. . . .” 18. Videotaped Deposition of David B. Hobza, Jr., October 11, 2007, Exhibit D to Defendant David Hobza’s Motion & Brief for Summary Judgment filed on February 1, 2008, providing in pertinent part at pp186-87: “. . . Q Now, we’ve got Plaintiff’s Exhibit 14, which I believe is attached as well, and it’s entitled — it’s a three-page document, SCI 0770 through 0772, and it is entitled Experimental Operating Limitations. Have you seen Exhibit 14 before? A Yes, I have seen it. Q Do you see on Page 2 of the Exhibit the operating limitations specifically says that no person may be carried in this aircraft during flight unless that person is essential to the purpose of the flight. Do you see that? . . . A Uh-huh, I see it. Q Was Perry Price essential to the purpose of the flight on October 15th, 2006? A I’d say he probably wasn’t essential. . . .” 19. Videotaped Deposition of Donald Lawrence Mayer, November 19, 2007, Exhibit F to Defendant David Hobza’s Motion & Brief for Summary Judgment filed on February 1, 2008, providing in pertinent part at pp. 122-24: “. . . Q All right. Mr. Hobza has testified about it. You have said you didn’t read his deposition, and what I would like for you to do is tell me about the meeting, why you called it, and what happened in it. A . . . And I let my emotions get away from me, and I went — I went after David in — in an accusatory fashion, with respect to having this airplane depart under the conditions and circumstances that I had been told existed during the course of the preceding week. I — I’m not sure if I gave him much of an opportunity to explain or present things from his point of view, but I then — as the only living corporate officer of the Servicenter, I terminated his contract and put it into a 12-month runoff period, and David left and the meeting folded up fairly shortly after that. Q Do you recall what you told David Hobza? A Yeah I was pretty emotional about it, and I told him I thought he should have done anything and — anything and everything he physically or verbally knew how to do to avoid having the aircraft depart. Q Anything else? A At the time, under the emotional stress, I think I accused him of being reckless . . .” 20. See, Patrick’s Inc. v. Mosseriano, 1955 OK 350, ¶0, 292 P.2d 1003; Oklahoma Gas & Elec. Co. v. Oliphant, 1935 OK ___, ¶0, 45 P.2d 1077. 21. Ex parte Essary, 992 So.2d 5 (Ala. 2007). 22. Williams v. Mammoth of Alaska, Inc., 890 P.2d 581, 584 (Alaska 1995). 23. Mize v. Conagra, Inc., 734 S.W.2d 334-35 (Tenn.App. 1987). 24. Davis v. Continental Natural Gas, Inc., see note 11 at ¶14, supra. 25. Sand Springs Home v. Dail, 1940 OK 279, ¶0, 103 P.2d 524. See also, Commercial Lumber Co. v. Nelson, 1937 OK 607, ¶0, 72 P.2d 829. 26. Sand Springs Home v. Dail, see note 25, supra; Municipal Paving Co. v. Herring, 1915 OK ____, 150 P. 1067. 27. Mendonca Dairy v. Mauldin, 1966 OK 233, ¶9, 420 P.2d 552; Johnston Grain Co. v. Self, 1959 OK 169, ¶0, 344 P.2d 653. 28. Commercial Lumber Co. v. Nelson, see note 25, supra. 29. Sperling v. Marler, 1998 OK 81, ¶21, 963 P.2d 577; Martin v. Chapel, Wilkinson, Riggs, & Abney, 1981 OK 134, ¶11, 637 P.2d 81. 30. Sperling v. Marler, see note 29, supra; Central Plains Constr. v. Hickson, 1998 OK CIV APP 83, ¶12, 959 P.2d 998. 31. A supplemental type certificate is a document issued by the Federal Aviation Administration that approves a modification to the aircraft and certifies that, with the modification, the aircraft is airworthy. Title 49 U.S.C. §44704 (2005)(b) providing in pertinent part: “Supplemental type certificates — (1) Issuance. — The Administrator may issue a type certificate designated as a supplemental type certificate for a change to an aircraft, aircraft engine, propeller, or appliance. (2) Contents. — A supplemental type certificate issued under paragraph (1) shall consist of the change to the aircraft, aircraft engine, propeller, or appliance with respect to the previously

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issued type certificate for the aircraft, arcraft engine, propeller, or appliance. (3) Requirement. — If the holder of a supplemental type certificate agrees to permit another person to use the certificate to modify an aircraft, aircraft engine, propeller, or appliance, the holder shall provide the other person with written evidence, in a form acceptable to the Administrator, of that agreement. A person may change an aircraft, aircraft engine, propeller, or appliance based on a supplemental type certificate only if the person requesting the change is the holder of the supplemental type certificate or has permission from the holder to make the change.” [Emphasis in original.] 32. Videotaped Deposition of David E. Hobza, Jr., October 11, 2007, Exhibit 2 to Howard Defendants’ & Olsen Defendants’ Joint Motion for Summary Judgement & Supporting Brief providing in pertinent part at pp. 92-94: “. . . Q. At what point, or when was the first time you had any discussion with anybody with regard to this plane obtaining an experimental certificate? A. That would have been early on in the program when the decision was made to do all the modifications to this airplane to make it a showpiece airplane and use for advertising of the ServiCenter, that would have been two or three months before. Q. And was that decision made by Jon Olsen? A. Made jointly by Jon Olsen and Dr. Howard and Wayne Radco. Q. To your knowledge, sitting here today, what interest did Jon Olsen have in having all of these modifications made to his airplane? A. The arrangement that had been made that I sat in on with Dr. Howard and with Wayne Radco was in lieu of spending a lot of money on advertising, they had a — an agreement that they were going to do certain things to this airplane to make it a flying advertisement for the ServiCenter, and on certain items on that airplane Dr. Howard agreed that he would pay for the material and the ServiCenter would provide the labor to install these particular parts and do these modifications. And in the course of doing that, the propellers were going to have to — were going to cause the airplane to be required to be put in an experimental condition to be flown and utilized. . . .” 33. Videotaped Deposition of David E. Hobza, Jr., October 11, 2007, Exhibit 2 to Howard Defendants’ & Olsen Defendants’ Joint Motion for Summary Judgment & Supporting Brief providing in pertinent part at p. 111: “. . . Q. So what was the benefit to the ServiCenter with these props? A. Because the ServiCenter would — with only initial STC, they would buy the props directly from MT Propeller, they would market [sic] the prop up and then they would sell them to the ServiCenter network and they would mark them up again before the end user got them. . . .” 34. Videotaped Deposition of David E. Hobza, Jr., Exhibit 2 to Howard Defendants’ & Olsen Defendants’ Joint Motion for Summary Judgment & Supporting Brief, filed on February 5, 2006 providing in pertinent part at p. 168: “. . . Q. He says’, [sic] Dave Hobza has reviewed the invoice and asked me to send it to you for payment. If you have any questions about the invoice, please contact Dave Hobza.’ He says, ‘Generally, I work through the ServiCenter on these projects, however, Charles and Dave wanted to keep this job separate.’ is that accurate? A. I don’t know why he would use that kind of verbiage. Charles contracted with him directly, so it wasn’t going through the ServiCenter because the ServiCenter wasn’t going to pay for it…” 35. Videotaped Deposition of David E. Hobza, Jr., Exhibit 3 to Howard Defendants’ & Olsen Defendants’ Joint Motion for Summary Judgment & Supporting Brief, filed on February 5, 2006 providing in pertinent part at p. 374: “. . . Q. Do you know if that cost of $20,000 for the propellers was ever billed to Dr. Howard? A. I don’t think it was. Again, this was a — this was basically a deposit for the propellers and also a slot to — to start the STC program after the first part of the year in Deland, Florida, with the MT Propellers. They felt they could get the STC much simpler and quicker and easier because that’s what they do every day. . . .” 36. Videotaped Deposition of Donald Lawrence Mayer, Plaintiff’s Exhibit A attached to the Plaintiff’s Objection to Howard & Olsen’s Motion for Summary Judgment, filed on March 19, 2008, providing in pertinent part at:

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p. 58 “. . . Q All right. Before we broke, we were talking about this MT Propeller project, and as I recall — or just to kind of summarize where we are, in January of 2005, you had voiced objection to continuing with the project, it wasn’t going anywhere, and you had directed Mr. Hobza to do whatever he could to try to market the project or sell it to Twin Commander; right? . . . A We agreed, as a group of stockholders, that David would take on that initiative to sell the project. I didn’t direct him. . . .” p. 73 “. . . Q Well, when — when you found out that there was a renewed effort, both financially and with — with personnel from the Servicenter to — to initiate the project and to participate once again in the MT Propeller project, how did that affect you? A Well, I was never aware of any terms and conditions associated with either the pursuit of modifying an airplane to put it into a configuration to have fivebladed props on it or any proposed arrangements with respect to what the economic benefits of having that kind of a project be [sic] pursued were going to be. . . .” p. 75-76 “. . . Q (By Mr. Burch) If Servicenter employees and personnel were used to renew the project and to work on the project, make modifications to this airplane, it was certainly done without your approval; is that right? . . . THE WITNESS: Yes. . . . Q (By Mr. Burch) To your knowledge, was there some separate — I’m not sure what the right word is, but — but some separate enterprise or some separate entity that was pursing this MT Propeller STC, other than the Servicenter?” A Not to my knowledge. . . .” 37. Videotaped Deposition of Donald Lawrence Mayer, November 19, 2007, Exhibit 8 to Howard Defendants’ & Olsen Defendants’ Joint Reply to Plaintiff’s Objection to Motion for Summary Judgment filed April 4, 2008, providing in pertinent part at: pp. 168-70 “. . . Q And Mr. Radko had the authority to enter into agreements that he deemed appropriate for the ServiCenter? A He did. Q Do you know of any reason that Mr. Radko would have not had the authority to enter into an agreement with Dr. Olsen or — excuse me, Dr. Howard or Mr. Olsen to pursue the five-bladed prop STC? A No, I don’t. Q Mr. Radko had the authority to enter into joint ventures that he deemed appropriate for the ServiCenter business? . . . THE WITNESS: Yeah. I guess — I guess — I’m having trouble with the reference to joint ventures, because if it rose to the level of, you know, kind of a joint venture with, arguably, some kind of entity, I would think that would come under the — at least good corporate practice of reference to the board of directors and — and some consideration by the full board. Q (By Mr. Elder) But that was never brought to your attention; correct? A Certainly to enter an agreement. The thing I’m having trouble with is the characterization as a joint venture. . . .” at pp. 193 “. . . Q Okay. Was Wayne Radko authorized to engage in those types of negotiations for the Servicenter? A Not with any specificity, but, certainly, a — a cost—sharing arrangement in connection with an aircraft modification project of the kind that the Servicenter was equipped with the resources to perform, I would have to say that I would expect that the authority of the chief executive officer of the Servicenter would include negotiating and — and concluding a contractual arrangement of that matter…” 38. MLC Mort. Corp. v. Sun America Mort. Co., see note 6, supra; Gaines v. Comanche County Medical Hosp., see note 6, supra; Mitchell v. Cox, see note 6, supra. 39. Videotaped Deposition of David B. Hobza, Jr., October 11, 2007, Exhibit D to Defendant David Hobza’s Motion & Brief for Summary Judgment, filed on April 4, 2008, providing in pertinent part at pp. 27-28:

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“. . . Q At some point, did your position change from being the president when you first went in with the Service Company to another position? A Yes. Q Take me through that. A After two or three years, the general consensus was that we could — that we should have a different president of the company and that we had a young man that was working with us, and we put him in the position of the president of the company and I became an employee working as a — as basically a salesman and — coordinator with — as a salesman, coordinated with customers for services that the ServiCenter provided. . . .” 40. Videotaped Deposition of Donald Lawrence Mayer, November 19, 2007, Exhibit K to Defendant David Hobza’s Reply to Plaintiff’s Response to Hobza’s Motion for Summary Judgment filed on April 4, 2008 providing in pertinent part at pp. 175-77: “. . . Q On the date of the — the takeoff and the crash, is it fair to say that one capacity of David Hobza was as an employee of the Servicenter? A Well, the document and the agreement defined the relationship with — between Servicenter and David as styled and as at least was intended by the drafter to establish David as a contractor. And I say that from firsthand experience and knowledge, because I wrote it and I signed it on behalf of the Servicenter. On the other hand, I’m also aware of additional indicia, materials and evidence, that could lead a reasonable person to conclude that David was operating in the capacity as an employee on at least October 15th, 2006. Q And those additional indicia would be, for example? A Well, one of the ones that come to mind is the use of a W-2 form to report to him earnings for the preceding fiscal year of the corporation. Q When you have — when you get a W-2, its very difficult to ever contend that you’re actually an independent contractor and not an employee; is that fair? A That’s absolutely fair. Q And here, with the W-2, we know Servicenter was — was paying Mr. Hobza a salary, right. A Correct. Q And they were withholding taxes? A That’s correct. Q Including, for example, Social Security taxes? A That’s correct, also. Q And your knowledge of this are is [sic] that that means employee, doesn’t it? … THE WITNESS: There is — there is considerable legal precedent, I believe, to draw that conclusion from that information…” 41. Videotaped Deposition of Donald Lawrence Mayer, November 19, 2007, Exhibit 4 to Howard Defendants’ and Olsen Defendants’ Joint Motion for Summary Judgment & Supporting Brief, filed on February 8, 2008 providing in pertinent part at p. 109: “. . . Q On October 15th, 2006, what was David Hobza’s position with the Servicenter? A He was an owner, and he was a member of the board of directors of the Servicenter. He was acting as an agent for Jon Olsen, the owner of the airplane, to affect the modification and recertification of the airplane in the experimental category, and he was working under the auspices of a contractor agreement between himself and the Servicenter. . . .” 42. Exhibit 7 to Howard Defendants & Olsen Defendants’ Joint Motion for Summary Judgment & Supporting Brief, filed on February 8, 2008, dated September 21, 2006, and addressed to “whom it may concern” is signed by Jon P. Olsen/owner and providing: “As Owner of Aero-Commander N55JS S/N11195. [sic] Give Mr. David Hobza the authority to act as agent for me, to change, modify and or place this aircraft in the experimental category.” 43. See note 37, supra. In Page v. Hardy, see note 44 at ¶10, infra, the Court addressed the distinction between employees and independent contractors by considering the following factors: 1) the nature of the contract between the parties, whether written or oral; 2) the degree of control which, by the agreement, the employer may exercise on the details of the work or the independence enjoyed by the contractor or agent; 3) whether or not the one employed is engaged in a distinct occupation or business and whether he carries on such occupation or business for others; 4) the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; 5) the skill required in the particular occupation; 6) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; 7) the length of time for which the person is employed;

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8) the method of payment, whether by the time or by the job; 9) whether or not the work is part of the regular business of the employer; 10) whether or not the parties believe they are creating the relationship of master and servant; and 11) the right of either to terminate the relationship without liability. 44. Page v. Hardy, 1958 OK 283, ¶0, 334 P.2d 782; Harris Meat & Produce Co. v. Brown, 1936 OK 460, ¶0, 59 P.2d 280; Shepard v. Crumby, 1930 OK 549, ¶0, 293 P. 1049. 45. Harris Meat & Produce Co. v. Brown, see note 44, supra; Maryland Casualty Co. v. State Indus. Com’n, 1931 OK 155, ¶3, 298 P. 275.

OPALA, J., concurring in part ¶1 Because I did not join the court’s pronouncement in Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572, I cannot concur in today’s entire opinion. Insofar as the court appears to extend to some appellees full protection of the Workers’ Compensation Act’s exclusive remedy found in 85 O.S. Supp. 2005 §12, by exonerating them from all tort liability at common law, I concur. But I am compelled to recede from all other parts of the court’s holding. 2010 OK 22 STATE OF OKLAHOMA, ex rel., OKLAHOMA BAR ASSOCIATION, Complainant, v. KATHERINE T. WALLER, Respondent. SCBD No. 5564. March 8, 2010 ORDER APPROVING RESIGNATION FROM THE OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS ¶1 The Oklahoma Bar Association filed a grievance against Respondent, Katherine T. Waller, alleging incompetence, neglect and trust fund violations. The grievance was combined with numerous other complaints of client neglect. Pursuant to Rule 8 (Resignation Pending Disciplinary Proceedings), Rules Governing Disciplinary Proceedings, Respondent submitted an affidavit filed September 24, 2009, seeking to resign her membership in the Oklahoma Bar Association and relinquish her right to practice law pending disciplinary proceedings. On the same date Complainant filed an application to this Court for an order approving the resignation of Respondent. Upon consideration of the matter we find: 1. Respondent executed an affidavit on September 24, 2009, wherein she asks to be allowed to resign her membership in the Oklahoma Bar Association and relinquish her right to practice law. Although she is aware her resignation is subject to the approval of this Court within its discretion, she intends it to be effective from the date

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of its execution and represents she will conduct her affairs accordingly. 2. Respondent’s resignation was freely and voluntarily tendered, she was not subject to coercion or duress, and she was fully aware of the consequences of submitting her resignation. 3. Respondent is aware that grievances were lodged against her and are pending with the Office of the General Counsel of the Oklahoma Bar Association. They include: a) Grievance DC 07-51 alleging that Respondent entered into a contract to file an immigration matter and neglected it by not filing the requisite documents with the INS; that she failed to respond to clients’ inquiries and did not account for the expenditure of client funds; and that Respondent converted client funds for her personal benefit, failed to properly maintain a client trust account and commingled client funds with personal funds. B) Grievances DC 09-49, DC 09-47, DC 09-90, DC 09-91, DC 09-129, DC 09-157, DC 09-161, and DC 09-216, alleging, all or in part, that Respondent was hired to represent clients in immigration matters and failed to file necessary documents; that she failed to advise, communicate, or respond to clients; that she failed to earn a fee; and that she provided incompetent work. 4. Respondent is aware the conduct that she engaged in constitutes violations of the Oklahoma Rules of Professional Conduct (ORPC), 5 O. S. 2001, Ch. 1, App. 3-A, and her oath as attorney.

7. Respondent acknowledges and agrees she may be reinstated to practice law only upon full compliance with the conditions and procedures prescribed by Rule 11, Rules Governing Disciplinary Proceedings and that pursuant to Rule 8.2, Rules Governing Disciplinary Proceedings, she may make no application for reinstatement to the practice of law prior to the expiration of five years from the effective date of the Order approving her resignation pending disciplinary proceedings. 8. Respondent acknowledges and agrees she is to cooperate with the Office of the General Counsel in providing her current contact information and identifying any active cases wherein client documents and files need to be returned to the client or forwarded to new counsel, and as to any fees or funds owed by her to clients and the amount owed. 9. Respondent acknowledges that as a result of her conduct, the Client Security Fund may receive claims from her former clients, that the Oklahoma Bar Association will attempt to contact her or her attorney for a response, and that the Client Security Fund Committee may recommend payment be made to the claimant from the Client Security Fund. Respondent agrees, that should the Oklahoma Bar Association approve and pay such claims, she will reimburse the Client Security Fund the principal amounts and the applicable statutory interest prior to the filing of any application for reinstatement. 10. The resignation pending disciplinary proceedings of Respondent is in compliance with Rule 8.1, Rules Governing Disciplinary Proceedings. 11. The Oklahoma Bar Association did not ask for costs.

5. Respondent’s Oklahoma Bar Association Number is 15051 and her official roster address is: 406 South Boulder Avenue, Ste 400, Tulsa, OK 74103. Respondent’s Oklahoma Bar Association card has been returned to the Office of the General Counsel of the Oklahoma Bar Association.

¶2 IT IS ORDERED that Complainant’s application for an Order approving the resignation of Respondent, Katherine T. Waller, is granted and Respondents’ resignation is accepted and approved, and her right to practice law is relinquished.

6. Respondent has familiarized herself with the provisions of Rule 9.1, Rules Governing Disciplinary Proceedings and has agreed to comply with the provisions of such Rule.

¶3 IT IS FURTHER ORDERED that Respondent’s name, Katherine T. Waller, be stricken from the Roll of Attorneys. Because resignation is tantamount to disbarment,

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Waller may not apply for reinstatement to membership in the Oklahoma Bar Association prior to expiration of five years from the effective date of this order. Âś4 IT IS FURTHER ORDERED that Waller shall comply with Rule 9.1 of the Rules Governing Disciplinary Proceedings. Repayment to the Client Security Fund for any monies expended because of the malfeasance or nonfeasance of the attorney shall be one of the conditions for reinstatement. Âś5 DONE IN CONFERENCE BY ORDER OF THE SUPREME COURT THIS 8th DAY OF MARCH, 2010. /s/ James E. Edmondson CHIEF JUSTICE Âś6 ALL JUSTICES CONCUR.

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Court of Criminal Appeals Opinions 2010 OK CR 6 KENDRICK ANTONIO SIMPSON, Appellant, v. STATE OF OKLAHOMA, Appellee. Case No. D 2007-1055. March 5, 2010 OPINION C. JOHNSON, PRESIDING JUDGE: ¶1 Appellant, Kendrick Antonio Simpson, was tried by a jury and convicted of First Degree Murder with Malice Aforethought (Counts I and II), Discharging a Firearm with Intent to Kill (Count III) and Possession of a Firearm After Former Conviction of a Felony (Count IV) in the District Court of Oklahoma County, Case No. CF 2006-496. The State filed a Bill of Particulars alleging four aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence; (2) the defendant knowingly created a great risk of death to more than one person; (3) the murder was especially heinous, atrocious, or cruel; and (4) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.1 The jury found Appellant guilty on each count charged and found the existence of all alleged aggravating circumstances as to each of Counts I and II. It assessed punishment at death on Counts I and II, life imprisonment on Count III and ten years imprisonment on Count IV. The trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has appealed.2 I. FACTS ¶2 On the evening of January 15, 2006, Jonathan Dalton, Latango Robertson and Appellant decided to go to Fritzi’s hip hop club in Oklahoma City. Prior to going to the club, the three drove in Dalton’s white Monte Carlo to Appellant’s house so that Appellant could change clothes. While at his house, Appellant got an assault rifle which he brought with him.3 Before going to Fritzi’s, the men first went to a house party where they consumed alcohol and marijuana. When they left the party, Appellant put the assault rifle into the trunk of the Monte Carlo, which could be accessed through the back seat.

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¶3 The three arrived at Fritzi’s between midnight and 1:00 a.m. on January 16. Once inside, they went to the bar to get a drink. Appellant and Dalton also took a drug called “Ecstasy.” After getting their drinks, Dalton and Robertson sat down at a table while Appellant walked around. When Appellant walked by London Johnson, Anthony Jones and Glen Palmer, one of the three apparently said something to him about the Chicago Cubs baseball cap that he was wearing. Appellant went back to the table and told Dalton and Robertson that some guy had given him a hard time about his cap. At some point, Appellant approached Johnson, Jones and Palmer again. During this encounter, Appellant told them that he was going to “chop” them up.4 After making this threat, Appellant walked away. He returned a short time later and walked up to Palmer. Appellant extended his hand and said, “We cool.” Palmer hit Appellant in the mouth knocking him to the floor. Appellant told Dalton and Robertson that he wanted to leave and the three of them left the club. ¶4 Out in the parking lot, Appellant, Dalton and Robertson went to Dalton’s Monte Carlo. Before leaving, they talked with some girls who had come out of the club and were parked next to them. The girls told the men to follow them to a 7-11 located at NW 23rd Street and Portland. When they arrived at the store, Appellant, Dalton and Robertson backed into a parking space toward the back door and the girls pulled in next to the pumps. While the men were sitting in the Monte Carlo, they saw Johnson, Jones and Palmer drive into the parking lot in Palmer’s Chevy Caprice. They recognized Palmer as the person who had hit Appellant at Fritzi’s. Dalton told Appellant to “chill out” but Appellant was mad and wanted to retaliate against Palmer. When Palmer drove out of the parking lot onto 23rd Street and merged onto I-44, Appellant told Dalton to follow them. ¶5 While they were following the Chevy, Appellant, who was sitting in the front passenger seat, told Robertson, who was sitting in the back seat, to give him the gun. He told Robertson that if he had to get the gun himself, there was going to be trouble. Robertson reached through the back seat into the trunk and

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retrieved the gun for Appellant. Dalton followed the Chevy as it exited the interstate onto Pennsylvania Avenue. He pulled the Monte Carlo into the left lane beside the Chevy as they drove on Pennsylvania Avenue and Appellant pointed the gun out his open window and started firing at the Chevy. ¶6 When the Chevy was hit with bullets, Palmer was driving, Jones was sitting in the front passenger seat and Johnson was in the back seat. Johnson heard about twenty rapid gun shots and got down on the floor of the car. He did not see the shooter but noticed a white vehicle drive up beside them. The Chevy jumped the curb and hit an electric pole and fence before coming to a stop. Palmer and Jones had been shot. Jones had been shot in the side of his head and torso and was unconscious. Palmer had been shot in the chest. He was initially conscious and able to talk but soon lost consciousness when he could no longer breathe. Johnson tried to give both Jones and Palmer CPR but was unsuccessful. He flagged down a car that was driving by and asked the driver to get help. Both Palmer and Jones died at the scene from their gunshot wounds. ¶7 After he fired at the Chevy, Appellant said, “I’m a monster. I just shot the car up.” He added, “They shouldn’t play with me like that.” Dalton kept driving until they reached a residence in Midwest City where he was staying. They dropped the gun off and switched cars, and then Dalton, Robertson and Appellant went to meet some girls they had talked to at Fritzi’s. II. OPPORTUNITY TO PRESENT A COMPLETE DEFENSE ¶8 Prior to trial, the defense filed a notice of intent to offer evidence of mental and/or psychological defect, deficiency, diminishment, and/or other such and related condition of defendant. Dr. Phillip Massad, a clinical psychologist, conducted a psychological evaluation of Appellant and issued a report in which he found it more likely than not that Appellant suffered from Post Traumatic Stress Disorder (PTSD). The State filed a motion to preclude the defense from offering testimony about Appellant’s PTSD in the first stage of trial. A hearing was held on this motion and the trial court granted the State’s motion. Appellant complains in his first proposition that this rul718

ing was in error and violated his constitutional right to present a complete defense. ¶9 It is true, as Appellant asserts, that the United States Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986). A defendant’s due process right under the Fifth Amendment and to compulsory process under the Sixth Amendment includes the right to present witnesses in his or her own defense. United States v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005); see also Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). “The right to offer the testimony of witnesses . . . is in plain terms the right to present a defense . . . . This right is a fundamental element of due process of law.” Washington, 388 U.S. at 19, 87 S.Ct. at 1923. See also Coddington v. State, 2006 OK CR 34, ¶ 46, 142 P.3d 437, 450-51. It is also true, however, that “[i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Gore v. State, 2005 OK CR 14, ¶ 21, 119 P.3d 1268, 1275, citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). Further, the admissibility of evidence is within the discretion of the trial court, which will not be disturbed absent a clear showing of abuse, accompanied by prejudice to the accused. Jackson v. State, 2006 OK CR 45, ¶ 48, 146 P.3d 1149, 1165. ¶10 Whether Appellant was denied the right to present a defense ultimately turns on whether the evidence at issue was admissible. In order to be admissible, evidence must be relevant. 12 O.S.2001, § 2402. “’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” 12 O.S.2001, § 2401. Appellant argues that the evidence that he suffered from PTSD was relevant to the issue of his intent at the time of the offense. The transcript of the hearing on the State’s motion to preclude defense testimony about PTSD in the first stage of trial reveals that after speaking with Dr. Massad and reviewing his report, the prosecutor believed that Dr. Massad would not be able to testify that Appellant’s PTSD precluded Appellant from forming the intent to kill. Contrary to

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this, the defense counsel believed that Dr. Massad would testify that “it is possible that the PTSD affected him to the extent that he was not able to form the specific intent.” Although Dr. Massad did not testify at the motion hearing, he did testify during the second stage of Appellant’s trial. At trial, Dr. Massad testified that although PTSD, especially when combined with alcohol and drug usage, could make a person hypersensitive and increase the likelihood that they would overreact to a situation, he acknowledged that he had not administered tests on Appellant to determine whether Appellant knew what he was doing at the time of the shooting. Thus, Dr. Massad could not testify as to how Appellant’s PTSD could affect his intent at the time of the crime. ¶11 The record before this Court supports the prosecutor’s position that Dr. Massad could not testify that Appellant’s PTSD precluded him from forming the intent to kill. Accordingly, the evidence that Appellant suffered from PTSD was neither relevant to the intent element of the crime charged nor was it relevant to his defense of voluntary intoxication, which requires a showing that Appellant’s intoxication rendered it impossible to form the intent element of the crime charged. Jackson v. State, 1998 OK CR 39, ¶ 67, 964 P.2d 875, 892. The trial court’s ruling precluding the defense from presenting this evidence during the first stage of trial was not an abuse of discretion and did not deprive Appellant of his constitutional right to present a defense. There was no error here. III. SUFFICIENCY OF THE EVIDENCE ¶12 Appellant argues in Proposition II that the evidence presented at trial was insufficient to prove beyond a reasonable doubt all of the elements of First Degree Murder. We review sufficiency of the evidence claims in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-04, citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979). Further, a reviewing court must accept all reasons, inferences, and credibility choices that tend to support the verdict. Warner v. State, 2006 OK CR 40, ¶ 35, 144 P.3d 838, 863. ¶13 Appellant first complains in this proposition that the only evidence implicating him in Vol. 81 — No. 8 — 3/20/2010

commission of the crimes for which he was convicted in this case was the trial testimony of Jonathan Dalton and Latango Robertson. This accomplice testimony, he asserts, was not sufficiently corroborated. “A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” 22 O.S.2001, § 742. Rather, accomplice testimony must be corroborated with evidence, which standing alone tends to link the defendant to the commission of the crime charged. Pink v. State, 2004 OK CR 37, ¶ 15, 104 P.3d 584, 590. An accomplice’s testimony need not be corroborated in all material respects but requires “at least one material fact of independent evidence which tends to connect the defendant with the commission of the crime.” Cummings v. State, 1998 OK CR 45, ¶ 20, 968 P.2d 821, 830. “Further, circumstantial evidence can be adequate to corroborate the accomplice’s testimony.” Id. ¶14 It is clear that both Dalton and Robertson were accomplices.5 Anderson v. State, 1999 OK CR 44, ¶ 23, 992 P.2d 409, 418. Thus, it was indeed necessary that Dalton’s and Robertson’s testimony be properly corroborated. While all evidence concerning the actual shooting was provided through Dalton’s and Robertson’s testimony, additional evidence connecting Appellant with the commission of the crimes was provided through the testimony of other witnesses. Although Appellant denied committing the crimes, he admitted to police that he was with Dalton and Robertson at Fritzi’s and that he had been hit in the face at the club on the night that the crimes occurred. London Johnson, the surviving victim, testified about Appellant’s altercation with Palmer at the club and testified specifically about Appellant’s threat to “chop” up Palmer, Jones and Johnson. This, Johnson stated, was a threat to shoot at them with an AK-47 or machine gun. Other witnesses placed Appellant, Dalton and Robertson inside Dalton’s Monte Carlo in the parking lot at Fritzi’s after the incident in the club. One witness testified that Appellant was not the driver and the other witness testified that Appellant was not in the back seat. These witnesses saw the Monte Carlo again a short time later at the 7-11 and watched it follow Palmer’s Chevy Caprice when Palmer left the convenience store parking lot. This evidence pro-

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vided the necessary independent evidence of at least one material fact tending to connect Appellant with the shooting. Thus, the accomplices’ testimony was properly corroborated. ¶15 Appellant also alleges in this proposition that the evidence, when viewed in the light most favorable to the State, was insufficient to prove beyond a reasonable doubt all of the elements of First Degree Murder. Appellant argues specifically that the evidence did not show his intent to kill, but rather, supports a finding that he intended to terrorize Palmer, Jones and Johnson by shooting at their car. “First Degree Murder requires deliberate intent to end human life, which can be instantly formed and inferred from the fact of the killing.” Jones v. State, 2006 OK CR 17, ¶ 8, 134 P.3d 150, 154. See also Hogan v. State, 2006 OK CR 27, ¶ 22, 139 P.3d 907, 919. The evidence presented at trial showed that Appellant threatened to “chop up” Palmer, Jones and Johnson, and then he followed through with this threat by having Dalton drive up beside Palmer’s car while he shot approximately twenty rounds at the car, hitting and killing Palmer and Jones. This evidence was sufficient to support, beyond a reasonable doubt, the finding by a rational trier of fact that Appellant shot at Palmer’s car with the intent to kill the individuals inside. Spuehler, 1985 OK CR 132, ¶ 7, 709 P.2d at 203-04. See also Powell v. State, 2000 OK CR 5, ¶¶ 47-50, 995 P.2d 510, 523-24. IV. LESSER INCLUDED OFFENSE INSTRUCTIONS ¶16 In his third proposition, Appellant argues that the trial court erred in failing to instruct the jury, sua sponte, on the lesser crime of Second Degree Depraved Mind Murder. Again, we review a trial court’s decision on the submission of lesser included offense instructions for an abuse of discretion. Jackson, 2006 OK CR 45, ¶ 24, 146 P.3d at 1159. Further, if a defendant convicted of the charged offense complains that the trial court should have given, sua sponte, some lesser offense instruction, this Court will consider whether the trial court’s omission amounts to plain error. McHam v. State, 2005 OK CR 28, ¶ 21, 126 P.3d 662, 670. ¶17 It is true that the trial court must instruct on any lesser included offense warranted by the evidence. Jones, 2006 OK CR 17, ¶ 6, 134 P.3d at 154, citing Shrum v. State, 1999 OK CR 41, 991 P.2d 1032 (lesser included instructions should be given if supported by any evidence). 720

An underlying requirement of Shrum, however, is that a lesser offense instruction should not be given unless the evidence would support a conviction for the lesser offense. Jones, 2006 OK CR 17, ¶ 6, 134 P.3d at 154. See also Harris v. State, 2004 OK CR 1, ¶ 50, 84 P.3d 731, 750 (to determine whether lesser-included offense instructions are warranted, this Court looks at whether the evidence might allow a jury to acquit the defendant of the greater offense and convict him of the lesser). “To warrant an instruction on depraved mind murder, the evidence must reasonably support the conclusion that the defendant committed an act so imminently dangerous to another person or persons as to evince a state of mind in disregard for human life, but without the intent of taking the life of any particular individual.” Jackson, 2006 OK CR 45, ¶ 26, 146 P.3d at 1160. ¶18 Appellant argues that an instruction on this lesser offense was warranted because at most, the evidence showed that he simply fired into the car in which Palmer, Jones and Johnson were riding. He asserts that while there was evidence that he may have been seeking revenge for being hit in the face, there was no evidence that he intended to kill his victims. Thus, he claims that this was a classic case of depraved mind murder. We find otherwise. In light of the testimony that Appellant threatened to “chop” up Palmer and his companions, instructed Dalton to follow Palmer’s car and then shot as many as twenty rounds at the moving vehicle with an assault rifle, we find that the evidence did not reasonably support the conclusion that Appellant did not intend to kill the men in the Chevy. An instruction on Second Degree Depraved Mind Murder was not warranted by the evidence and the trial court did not abuse its discretion in declining to give this instruction sua sponte. There was no plain error here. V. FIREARMS DEMONSTRATION ¶19 During the first stage of trial, the State conducted a firearms demonstration in which the jury was transported to an Oklahoma City Police Department firing range and an investigator for the Oklahoma County District Attorney’s Office, Gary Eastridge, demonstrated the use of an AK-style semi-automatic weapon. Defense counsel objected to this demonstration and his objection was overruled.6 Appellant complains in his fourth proposition that this ruling was in error. Again, the admissibility of evidence is within the discretion of the trial

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court, which will not be disturbed absent a clear showing of abuse, accompanied by prejudice to the accused. Jackson, 2006 OK CR 45, ¶ 48, 146 P.3d at 1165. ¶20 Because the weapon used in the shooting was never recovered, it is not known whether it was a fully automatic or a semi-automatic firearm. Appellant contends that the demonstration of a semi-automatic weapon mislead the jury to believe that he had used this type of weapon in the shooting and bolstered the State’s assertion that he shot with the intent to kill as he would have had to purposefully pull the trigger of a semi-automatic weapon many times to discharge as many bullets as were reported to have been fired. Thus, he argues, this demonstration was misleading and prejudicial. ¶21 The investigator who performed the demonstration testified that when an AK-47 fully automatic rifle is used, a single pull of the trigger will fire the weapon until the trigger is released. He testified that when a semi-automatic weapon is used, each pull of the trigger fires a single shot. He demonstrated a quick, repeated firing of a semi-automatic assault rifle. The testimony and demonstration showed the jury that either weapon could have been used by Appellant. Neither the investigator’s testimony nor his demonstration misled the jury to believe that Appellant used a semi-automatic rather than a fully-automatic weapon. The demonstration which showed that a semi-automatic weapon could have been used was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. 12 O.S.2001, §§ 2401, 2403. The trial court did not abuse its discretion in overruling Appellant’s objection to the demonstration. VI. HEARSAY AND CONFRONTATION ¶22 During the second stage of trial, Roy Collins, a man who had shared a cell with Appellant in the Oklahoma County Jail, testified for the State. During direct examination of this witness, the prosecutor introduced into evidence, and asked Collins to read to the jury, five letters that he had written to the police and the prosecutor’s office revealing admissions Appellant had made to him in jail. These letters were read and admitted without objection from defense counsel. In his fifth proposition, Appellant contends that the admission of the letters into evidence and the reading of them to the jury was error. As there was no objection at trial, we review only for plain Vol. 81 — No. 8 — 3/20/2010

error on appeal. Jones v. State, 2009 OK CR 1, ¶ 52, 201 P.3d 869, 884. ¶23 Appellant first complains in this proposition that the letters were inadmissible hearsay. Appellant is correct. The letters were hearsay for which no exception applied. See Malone v. State, 2007 OK CR 34, ¶ 58, 168 P.3d 185, 210; 12 O.S.2001, § 2801. However, the record reveals that Collins’ testimony prior to the introduction of the letters provided the jury substantially the same information as was contained within the letters. Collins testified that Appellant had confessed to committing the crime, had shown no remorse for his actions and had even laughed about the crime and wanted to kill and threaten potential witnesses. Thus, while the letters were inadmissible hearsay, the information contained therein was cumulative to properly admitted evidence. In light of Collins’ admissible testimony, we find that the introduction of this inadmissible hearsay was harmless error. ¶24 Appellant also argues in this proposition that the letters were testimonial in nature and therefore, their admission violated his Sixth Amendment right to confrontation. Under Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004), a testimonial out-of-court statement offered against an accused to establish the truth of the matter asserted may be admitted only where the declarant is unavailable and where the accused has had a prior opportunity to cross-examine the witness. Crawford states, however, that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” Id. at 59 n.9, 124 S.Ct. at 1369 n.9, citing California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). See also Stouffer v. State, 2006 OK CR 46, ¶ 70, 147 P.3d 245, 264. The letters did not pose a Confrontation Clause problem as Collins testified at trial and was subject to cross-examination. VII. PROSECUTORIAL MISCONDUCT ¶25 In Proposition VI, Appellant complains that prosecutorial misconduct deprived him of his right to a fair trial. “This Court will not grant relief based on prosecutorial misconduct unless the State’s argument is so flagrant and that it so infected the defendant’s trial that it was rendered fundamentally unfair.” Williams v. State, 2008 OK CR 19, ¶ 124, 188 P.3d 208, 230. The Appellant concedes that all but one of the

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comments complained of were not met with objection at trial. We review the comments not objected to for plain error only. Matthews v. State, 2002 OK CR 16, ¶ 38, 45 P.3d 907, 920. ¶26 The alleged instances of misconduct include allegations that the prosecutor argued facts not in evidence, engaged in unnecessary ridicule of Appellant, contrasted Appellant’s situation with that of the victims’, appealed to justice and sympathy for the victims and their families and improperly shifted the burden of proof. Many of these comments, including the single comment met with objection, fell within the broad parameters of effective advocacy and do not constitute error. Martinez v. State, 1999 OK CR 33, ¶ 44, 984 P.2d 813, 825. We review those comments bordering upon impropriety within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. DeRosa v. State, 2004 OK CR 19, ¶ 53, 89 P.3d 1124, 1145. Given the magnitude of the State’s evidence against Appellant this Court finds that any inappropriate comments not objected to did not deprive Appellant of a fair trial or affect the jury’s finding of guilt or assessment of punishment. There was no plain error here. VIII. VOLUNTARY INTOXICATION ¶27 In his seventh proposition, Appellant complains that he was denied his right to a fair trial because the jury instructions and the prosecutor’s arguments on voluntary intoxication did not state the applicable law. Regarding the jury instructions, this Court has held that, “[j]ury instructions are a matter committed to the sound discretion of the trial court whose judgment will not be disturbed as long as the instructions, taken as a whole, fairly and accurately state the applicable law.” Dill v. State, 2005 OK CR 20, ¶ 11, 122 P.3d 866, 869. Further, where, as here, the instructions were not met with objection by the defense, all but plain error will be deemed waived. Watts v. State, 2008 OK CR 27, ¶ 9, 194 P.3d 133, 136-37. ¶28 “A defense of voluntary intoxication requires that a defendant, first, be intoxicated and, second, be so utterly intoxicated, that his mental powers are overcome, rendering it impossible for a defendant to form the specific criminal intent … element of the crime.” McElmurry v. State, 2002 OK CR 40, ¶ 72, 60 P.3d 4, 23, quoting Jackson v. State, 1998 OK CR 722

39, ¶ 67, 964 P.2d 875, 892. When the crime is that of First Degree Malice Murder, the specific intent is malice aforethought, or the intent to kill. 21 O.S.2001, § 701.7(A). Appellant argues that the jury instructions on voluntary intoxication given in the present case were erroneous because the instruction defining the intent element of the defense contained an erroneous legal standard. The instruction, he complains, referred generally to “a criminal intent” and did not advise the jury of the specific intent element of the crime of First Degree Murder. Thus, he complains, the instructions led the jury to believe that Appellant could not be entitled to the defense of voluntary intoxication if he could have formed any criminal intent — either general or specific. ¶29 The record reflects that the instruction at issue, based upon Oklahoma Uniform Jury Instruction 8-39, was given as follows: Incapable Of Forming Specific Criminal Intent — The state in which one’s mental powers have been overcome through intoxication, rendering it impossible to form a criminal intent. While it is true that this instruction utilized the “criminal intent” language, we find that it did not render the instructions, as a whole, inaccurate or inadequate. Appellant’s jury was advised, in Instruction 31, that malice aforethought was the proper intent to apply to the voluntary intoxication defense: The crimes in Counts 1 and 2 of Murder In The First Degree have as an element the specific criminal intent Malice Aforethought. A person in [sic] entitled to the defense of voluntary intoxication if that person was incapable of forming the specific criminal intent because of his intoxication. This is the same instruction that this court recently reaffirmed as proper and legally sufficient in Malone, 2007 OK CR 34, ¶ 30, 168 P.3d at 198. Appellant’s jury was adequately advised that malice aforethought was the proper intent to apply to the voluntary intoxication defense. ¶30 Appellant argues in conjunction with this claim, that the prosecutor’s closing argument to the jury referenced the incorrect law on the defense of voluntary intoxication and this argument, coupled with the jury instructions on voluntary intoxication, created plain error which requires reversal. Notably, none of the argument complained of was met with objec-

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tion at trial. Accordingly, all but plain error has been waived. Howell v. State, 2006 OK CR 28, ¶ 11, 138 P.3d 549, 556. ¶31 Appellant complains specifically that the prosecutor told the jury that they had to find Appellant’s actions rendered it impossible for him to form “a criminal intent” without referencing the specific intent of malice aforethought or intent to kill. The record reveals that when addressing the defense of voluntary intoxication, the prosecutor sometimes referred generally to “criminal intent.” However, the record also reveals that the prosecutor argued to the jury, in the context of the voluntary intoxication defense, that the evidence show that Appellant had the specific “intent to kill” when he committed the crime. ¶32 Because the jury instructions, when taken as a whole, adequately stated the applicable law on the defense of voluntary intoxication and because the prosecutor’s arguments were largely correct and proper statements of the law, we find no plain error here. Appellant’s argument warrants no relief. IX. OPINION TESTIMONY ¶33 Oklahoma City Police Detective John George testified for the State in both stages of Appellant’s trial. Appellant argues in his eighth proposition that Detective George gave improper opinion testimony that invaded the province of the jury and improperly vouched for the credibility of State’s witnesses. The trial court’s decision regarding the admission of evidence is reviewed for an abuse of discretion and will not be reversed absent a clear abuse of discretion. Hancock v. State, 2007 OK CR 9, ¶ 72, 155 P.3d 796, 813. However, as Appellant concedes, most evidence at issue in this proposition was not met with objection by defense counsel and therefore, as to this testimony, all but plain error has been waived. Id. ¶34 The record reflects that on direct examination, Detective George testified about his interview with Appellant at the police station after the shooting. He testified that in his experience as a police officer, it was not odd for suspects to deny involvement in the commission of a crime as “[p]eople don’t want to tend to confess to a homicide.” He also agreed that it was not odd for suspects to tell circumstances surrounding the crime but omit the facts of the actual crime. He stated, “I believe he told us parts that he thought we knew, like the fight at the club and everything, but left out obviously the parts Vol. 81 — No. 8 — 3/20/2010

about the shooting, the stuff he didn’t think we knew.” Appellant argues that testimony that Appellant was being untruthful was improper as it was tantamount to giving an opinion that Appellant was guilty. We disagree. It is well settled that “[p]olice officers are allowed to give opinion testimony based on their training and experience.” Andrew v. State, 2007 OK CR 23, ¶ 80, 164 P.3d 176, 196, citing Berry v. State, 1988 OK CR 83, ¶ 6, 753 P.2d 926, 929-30; McCoy v. State, 1985 OK CR 49, ¶ 14, 699 P.2d 663, 665-66. We find that this testimony was admissible as it was properly based on Detective George’s perceptions in conjunction with his training and experience. Further, despite Appellant’s argument to the contrary, we find that this testimony, which did not purport to be scientific in nature, was not subject to the requirements of Daubert.7 See Malone, 2007 OK CR 34, ¶ 82 n.153, 168 P.3d at 217 n.153. ¶35 Appellant next complains that Detective George improperly vouched for the credibility of other State’s witnesses. George testified that initially, Appellant’s statement was consistent with the statements given by co-defendants Dalton and Robertson and all of them originally omitted the part of the evening involving the shooting and the type of car they were driving that night. George then testified, “They told us the same stories before and after, as we just heard, and then they filled in the middle once they [Dalton and Robertson] decided to cooperate and tell us the truth.” Appellant also complains that Detective George improperly vouched for the credibility of State’s witness Roy Collins. During the second stage of trial, Detective George testified that Roy Collins had given the police details about the case that the police did not know prior to interviewing him. ¶36 Evidence is impermissible vouching only if the jury could reasonably believe that a witness is indicating a personal belief in another witness’s credibility, “either through explicit personal assurances of the witness’s veracity or by implicitly indicating that information not presented to the jury supports the witness’s testimony.” Warner v. State, 2006 OK CR 40, ¶ 24, 144 P.3d 838, 860. In the present case, Detective George neither gave explicit personal assurances of these witnesses’ veracity nor did he implicitly indicate that information not presented at trial supported these witnesses’ testimony. Detective George did not improperly vouch for the credibility of other witnesses and

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the admission of his testimony was not an abuse of discretion. X. PREJUDICIAL PHOTOGRAPHS ¶37 In his ninth proposition, Appellant argues for the first time on appeal that the introduction of irrelevant, inflammatory and highly prejudicial photographs of the victims and the crime scene deprived him of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II, §§ 7, 9 and 20 of the Oklahoma Constitution. The admission of photographs is within the trial court’s discretion and will not be disturbed absent abuse of discretion. Browning v. State, 2006 OK CR 8, ¶ 32, 134 P.3d 816, 837. As counsel had no objection at trial, we review for plain error only. Williams, 2008 OK CR 19, ¶ 69, 188 P.3d at 223. ¶38 This Court has held that photographs may be relevant to show the nature and location of wounds, corroborate the medical examiner’s testimony, or show the crime scene. Browning, 2006 OK CR 8, ¶ 32, 134 P.3d at 837. We have noted many times that while gruesome crimes make for gruesome crime-scene photographs, the issue is whether the probative value of the evidence is substantially outweighed by its prejudicial effect. Pavatt v. State, 2007 OK CR 19, ¶ 55, 159 P.3d 272, 290; 12 O.S.2001, §§ 2401-2403. The photographs at issue in the present case were relevant and their probative value was not substantially outweighed by the danger of unfair prejudice. We find no abuse of discretion in the trial court’s decision to admit the photographs. Appellant was not deprived of his constitutional rights by the admission of these photographs. XI. VOIR DIRE ¶39 Appellant argues in his tenth proposition that he was denied his constitutional right to an adequate voir dire and a fair and impartial jury. This Court reviews the manner and extent of a trial court’s voir dire under an abuse of discretion standard. Williams, 2008 OK CR 19, ¶ 27, 188 P.3d at 217, citing Littlejohn v. State, 2004 OK CR 6, ¶ 49, 85 P.3d 287, 301. ¶40 The record reflects that after the trial court and both parties had completed voir dire and the panel had been passed for cause, the trial court noted on the record that defense counsel had not requested that the court voir dire the jurors on whether they would automatically impose the death penalty. The trial 724

court noted additionally that such an inquiry would have been required by law if a request had been made. Appellant argues that the trial court’s understanding that it was not required to life qualify the jury sua sponte was inconsistent with Oklahoma law. He asserts that the trial court is required to life qualify the jury in all death penalty cases even absent a request to do so. Appellant’s argument is not based upon statutory authority or case law, but rather rests upon the Notes on Use regarding the life qualifying question in the Oklahoma Uniform Jury Instructions. The Notes on Use advise that the life qualifying question be asked in all cases where the death penalty is being sought, not because such is mandated by law, but rather because, “the Committee believes that the interests of justice and judicial economy will be best served if the trial court asks this question.” Rule 1-5 (Alternative 2) OUJI-CR(2d). 8 ¶41 In Morgan v. Illinois, 504 U.S. 719, 735-36, 112 S.Ct. 2222, 2233, 119 L.Ed.2d 492 (1992), the United States Supreme Court held that a capital defendant must be permitted on voir dire to find out whether prospective jurors believe that the death penalty should automatically be imposed upon conviction for first degree murder. The Supreme Court ruled that upon request, either defense counsel or the trial court must ask prospective jurors whether they would automatically impose a sentence of death. Morgan, 504 U.S. at 729, 112 S.Ct. at 2229. This Court has adhered to and followed this ruling numerous times.9 However, neither the United States Supreme Court nor this Court has held that the trial court is required to ask life qualifying questions to the jury absent a request to do so. Absent legal authority to the contrary, we cannot find that the trial court abused its discretion in declining to ask the potential jurors the life qualifying question sua sponte. XII. ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL AGGRAVATING CIRCUMSTANCE ¶42 Appellant argues in his eleventh proposition that the evidence was insufficient to establish beyond a reasonable doubt the especially heinous, atrocious or cruel aggravating circumstance as to the murders of both Palmer and Jones. To prove that a murder is especially heinous, atrocious or cruel, the evidence must show that the victim’s death was preceded by torture or serious physical abuse. Hogan v. State, 2006 OK CR 19, ¶ 66, 139 P.3d 907, 931. Serious physical abuse is proved by showing

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that the victim endured conscious physical suffering before dying. Id. “When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, this Court reviews the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt.” Washington v. State, 1999 OK CR 22, ¶ 44, 989 P.2d 960, 974. ¶43 With regard to the murder of Glen Palmer, the evidence showed that Palmer was shot four times. He suffered a grazing gunshot wound to the right shoulder, two superficial gunshot wounds to the left side of his back, and an ultimately fatal gunshot wound to his chest. Although he was initially conscious after being shot, his breathing became labored and he made gurgling sounds as his chest filled with blood before he died. There was testimony that immediately after he had been shot, Palmer was able to speak, was aware that he had been shot and was fearful that the shooters would return. Reviewing the evidence in the light most favorable to the State, we find that the evidence supports a finding that Palmer’s death was preceded by physical suffering and mental cruelty. Jones, 2009 OK CR 1, ¶¶ 77-79, 201 P.3d at 889. ¶44 With regard to the murder of Anthony Jones, the evidence showed that his death was nearly immediate. Jones suffered numerous gunshot wounds including wounds to his head and chest. The Medical Examiner testified that Jones injuries were not survivable and he likely died within seconds after being shot. Johnson testified that Jones was not conscious after being shot and Johnson could not detect a pulse when he checked Jones. The evidence does not show, beyond a reasonable doubt and in a light most favorable to the State, that Jones’ death was preceded by torture or that he endured conscious physical suffering before dying. Accordingly, Appellant’s argument that the especially heinous, atrocious or cruel aggravating circumstance must be stricken with regard to the murder of Anthony Jones is well taken and we so hold.10 ¶45 We must now consider what relief, if any, is required. “An invalidated sentencing factor … will render the sentence unconstitutional by reason of its adding an improper element to the aggravation scale in the weighing process unless one of the other sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” Vol. 81 — No. 8 — 3/20/2010

Brown v. Sanders, 546 U.S. 212, 220, 126 S.Ct. 884, 892, 163 L.Ed.2d 723 (2006). “If the jury could have properly considered the evidence used to support the invalidated aggravator anyway because it also supported a separate and valid aggravator, the death sentence will stand.” Jackson, 2006 OK CR 45, ¶ 44, 146 P.3d at 1164. Under such circumstances, the jury has not considered any improper evidence and has not weighed any improper aggravating evidence against the mitigating evidence in arriving at its sentence. Id. Since there was really no evidence presented to the jury in support of the especially heinous, atrocious or cruel aggravating circumstance with regard to the murder of Anthony Jones, we find that Appellant’s jury did not consider improper aggravating evidence in deciding punishment. Thus, the jury’s weighing process of mitigating evidence against aggravating circumstances was not skewed. See Jackson, 2006 OK CR 45, ¶ 45, 146 P.3d at 1164. This claim is rejected. XIII. MITIGATING EVIDENCE INSTRUCTION ¶46 In his twelfth proposition, Appellant argues that the definition of mitigating circumstances given to the jury in this case was unconstitutional as it impermissibly limited the jury’s consideration of mitigating evidence. This Court has consistently upheld constitutional challenges to the instruction at issue.11 However, as Appellant correctly asserts, in Harris v. State, 2007 OK CR 28, ¶¶ 24-28, 164 P.3d 1103, 1113-14, this Court recognized that while the instruction on mitigating evidence did not unconstitutionally limit the evidence the jury could consider as mitigating, it was subject to misuse by prosecutors in closing argument.12 This is what Appellant argues happened in the present case. However, as the record reflects no objection to the alleged offending argument, this Court will review only for plain error on appeal. Jones, 2009 OK CR 1, ¶ 76, 201 P.3d at 888. A review of the prosecutor’s closing argument concerning the mitigating evidence instruction, the mitigating evidence itself and all instructions concerning mitigating evidence given in this case supports our conclusion that the jurors’ consideration of the evidence offered in mitigation was not unfairly limited in this case.

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XIV. INEFFECTIVE ASSISTANCE OF COUNSEL ¶47 In his thirteenth proposition, Appellant argues that he was denied his Sixth Amendment right to the effective assistance of counsel for several alleged failings of his trial attorney. This Court reviews claims of ineffective assistance of counsel under the two-part Strickland test that requires an appellant to show: (1) that counsel’s performance was constitutionally deficient; and (2) that counsel’s performance prejudiced the defense, depriving the appellant of a fair trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Davis v. State, 2005 OK CR 21, ¶ 7, 123 P.3d 243, 246. It is not enough to show that counsel’s failure had some conceivable effect on the outcome of the proceeding. Rather, an appellant must show that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Head, 2006 OK CR 44, ¶ 23, 146 P.3d 1141, 1148. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. ¶48 In support of his proposition, Appellant first argues that trial counsel was ineffective for failing to object to the introduction of inadmissible evidence, improper tactics and argument of the prosecutors, the trial court’s rulings precluding the admission of defense evidence and the submission of improper jury instructions and verdict forms. These alleged failings concern issues raised and addressed above. We found in Proposition I, that the evidence of Appellant’s PTSD was inadmissible in first stage of trial and properly precluded. We found in Proposition III that an instruction on Second Degree Depraved Mind Murder was not warranted by the evidence. In Proposition V, we found that while the letters at issue were in fact hearsay for which no exception applied, the information contained within them was cumulative to properly admitted evidence and thus, their admission was harmless. In Proposition VI, we found that none of the alleged improper comments made by the prosecutor could be found to have affected the jury’s finding of guilt or assessment of punishment. We found in Proposition VII, that the jury instructions, when taken as a whole, adequately stated the applicable law on the defense of voluntary intoxication and the prosecutor’s arguments were largely correct and proper statements of 726

the law. In Proposition VIII, we found that Detective George did not give improper opinion testimony or improperly vouch for the credibility of other witnesses. In Proposition XI, we found that the heinous, atrocious or cruel aggravating circumstance was proven beyond a reasonable doubt as to the murder of Glen Palmer. Although this aggravating circumstance was stricken as to the murder of Anthony Jones, Appellant’s jury did not consider improper aggravating evidence in deciding punishment. In Proposition XII, we found that the jurors’ consideration of the evidence offered in mitigation in this case was not unfairly limited. Most of these alleged failings do not reflect a deficient performance by defense counsel and Appellant has not shown a reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different. ¶49 Next, Appellant complains that defense counsel was ineffective for failing to adequately investigate and present additional evidence of innocence. He first specifically complains that counsel was ineffective for failing to investigate and present additional mitigating evidence. While Appellant has shown this Court that additional mitigation witnesses could have been called and others that were called could have given additional testimony, he has not shown a reasonable probability that, but for counsel’s alleged unprofessional error in not presenting this evidence, the result of the proceeding would have been different. ¶50 The next allegation of ineffective assistance of counsel concerns a concession made by defense counsel in opening statements. The record reflects that during opening statements, defense counsel conceded that Appellant was the shooter in the homicides. This concession was apparently made, with the consent of Appellant, in order to remain consistent with the intended defense built around Appellant’s claim of PTSD. After defense counsel told the jury that Appellant was the shooter, he also told them that because of this concession, he would have a hard time asking them to find Appellant not guilty and would turn, at some point, to the second stage of trial. This second comment, Appellant argues, was tantamount to a complete concession of guilt and was not made with Appellant’s knowing and intelligent consent. We disagree. With this comment, defense counsel did not concede that Appellant was guilty of First Degree Murder. Rather,

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when the whole of the comments are taken together, it is clear that defense counsel, in accord with his claim that Appellant suffered from PTSD, conceded that his client would be guilty of a lesser form of homicide. The concession made by defense counsel with the consent of Appellant cannot be found to constitute ineffective assistance of counsel. ¶51 Next Appellant argues that trial counsel was ineffective for failing to call a witness to impeach Collins’ credibility by testifying that Collins was an opportunist who would lie and perjure himself in order to get a better deal for himself. This information was basically revealed at trial through both direct and crossexamination of Collins. While defense counsel certainly could have called this witness, Appellant has not shown a reasonable probability that, but for counsel’s alleged unprofessional error in not doing so, the result of the proceeding would have been different. ¶52 Finally, Appellant contends that the defense investigator who was assigned to work on his case had previously worked on codefendant Dalton’s case and therefore, had a conflict of interest. It is not clear how the investigator’s alleged conflict of interest rendered trial counsel’s performance deficient. The investigator’s affidavit submitted in support of the Motion for an Evidentiary Hearing sheds no light on this. The investigator stated in his affidavit that he worked on gathering records for Dalton to use for mitigation and the memorandums he prepared for Dalton’s case were turned over to Appellant’s attorneys in this case. He also stated that he did the best that he could for Appellant and did not feel like the work he did on Appellant’s case was compromised by his work on Dalton’s case. Appellant has neither shown that counsel were deficient with regard to their use of the investigator nor that any alleged deficiency prejudiced the defense, depriving Appellant of a fair trial with a reliable result. Appellant has not shown that he was denied his constitutional right to the effective assistance of counsel. ¶53 In conjunction with this claim, Appellant has filed a Rule 3.11 motion for an evidentiary hearing on the issue of ineffective assistance of counsel asserting that counsel was ineffective for failing to adequately investigate and identify evidence which could have been made available during the trial. Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007). In accordance with the Vol. 81 — No. 8 — 3/20/2010

rules of this Court, Appellant has properly submitted with his motion affidavits supporting his allegations of ineffective assistance of counsel. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007). As the rules specifically allow Appellant to predicate his claim on allegations “arising from the record or outside the record or a combination of both,” id., it is, of course, incumbent upon this Court, to thoroughly review and consider Appellant’s application and affidavits along with other attached nonrecord evidence to determine the merits of Appellant’s ineffective assistance of counsel claim. Our rules require us to do so in order to evaluate whether Appellant has provided sufficient information to show this Court by clear and convincing evidence that there is a strong possibility trial counsel was ineffective for failing to utilize or identify the evidence at issue. Rule 3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2007). This standard is intended to be less demanding than the test imposed by Strickland and we believe that this intent is realized. Indeed, it is less of a burden to show, even by clear and convincing evidence, merely a strong possibility that counsel was ineffective than to show, by a preponderance of the evidence that counsel’s performance actually was deficient and that but for the unprofessional errors, the result of the proceeding would have been different as is required by Strickland. Thus, when we review and grant a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we do not make the adjudication that defense counsel actually was ineffective. We merely find that Appellant has shown a strong possibility that counsel was ineffective and should be afforded further opportunity to present evidence in support of his claim. However, when we review and deny a request for an evidentiary hearing on a claim of ineffective assistance under the standard set forth in Rule 3.11, we necessarily make the adjudication that Appellant has not shown defense counsel to be ineffective under the more rigorous federal standard set forth in Strickland. ¶54 In the present case, Appellant specifically asserts in his application for an evidentiary hearing on his claim of ineffective assistance of counsel that defense counsel was ineffective for failing to investigate and present (1) additional mitigating evidence that Appellant endured a miserable life of poverty and parental neglect during his childhood and adoles-

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cence; (2) new evidence showing that trial counsel did not obtain Appellant’s knowing and intelligent consent or acquiescence to counsel’s concession that Appellant was the shooter and that counsel could not ask the jury to render a not guilty verdict; (3) additional evidence from a witness available to trial counsel but not called at trial showing that State’s witness Roy Collins had admitted to him that he was going to ‘snitch on’ Appellant to get a better deal in his own case; and (4) evidence of a defense trial investigator’s conflict of interest because of a previous assignment as an investigator for a codefendant. We have thoroughly reviewed Appellant’s application and affidavits along with other attached non-record evidence and we conclude that Appellant has failed to show with clear and convincing evidence a strong possibility that counsel was ineffective for failing to identify or use the evidence raised in the motion. Consequently, we also find that Appellant failed to show that counsel’s performance was constitutionally deficient and that counsel’s performance prejudiced the defense, depriving him of a fair trial with a reliable result. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d 674 (1984); Davis, 2005 OK CR 21, ¶ 7, 123 P.3d at 246. Appellant is not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel. XV. CUMULATIVE ERROR ¶55 Finally, Appellant claims that trial errors, when considered cumulatively, deprived him of a fair sentencing determination. This Court has recognized that when there are “numerous irregularities during the course of [a] trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors was to deny the defendant a fair trial.” DeRosa, 2004 OK CR 19, ¶ 100, 89 P.3d at 1157, quoting Lewis v. State, 1998 OK CR 24, ¶ 63, 970 P.2d 1158, 1176. Upon review of Appellant’s claims for relief and the record in this case we conclude that although his trial was not error free, any errors and irregularities, even when considered in the aggregate, do not require relief because they did not render his trial fundamentally unfair, taint the jury’s verdict, or render sentencing unreliable. Any errors were harmless beyond a reasonable doubt, individually and cumulatively. XVI. MANDATORY SENTENCE REVIEW ¶56 Title 21 O.S.2001, § 701.13 requires this Court to determine “[w]hether the sentence of 728

death was imposed under the influence of passion, prejudice or any other arbitrary factor; and whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance.” After conducting this review, this Court may order any corrective relief that is warranted or affirm the sentence. 21 O.S.2001, § 701.13(E). ¶57 We have reviewed the record in this case in conjunction with Appellant’s claims for relief and have found that his conviction and death sentence were not the result of the introduction of improper evidence, witness testimony, prosecutorial misconduct or trial court error. We therefore find Appellant’s death sentence was not imposed because of any arbitrary factor, passion or prejudice. ¶58 The jury’s finding that Appellant had been previously convicted of a felony involving the use or threat of violence, knowingly created a great risk of death to more than one person and that there existed a probability that he would commit criminal acts of violence that would constitute a continuing threat to society is amply supported by the evidence. Further, the jury’s finding that Palmer’s murder was especially heinous, atrocious, or cruel is also amply supported by the evidence. Appellant’s jury did not consider any improper aggravating evidence in deciding punishment. Weighing the valid aggravating circumstances and evidence against the mitigating evidence, we find, as did the jury below, that the aggravating circumstances outweigh the mitigating circumstances. The Judgment and Sentence of the district court is AFFIRMED. DECISION ¶59 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE TWYLA MASON GRAY, DISTRICT JUDGE APPEARANCES AT TRIAL Stephen Deutsch, Jennifer Chance, Assistant District Attorneys, 320 Robert S. Kerr, Ste. 505,

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Oklahoma City, OK 73102, Attorneys for the State William Campbell, 925 N.W. 6th Street, Oklahoma City, OK 73106, Larry Tedder, 228 Robert S. Kerr, Ste. 605, Oklahoma City, OK 73102, Attorneys for the Defendant

PHILLIP ANTHONY SUMMERS, Appellant v. STATE OF OKLAHOMA, Appellee. Case No. D-2008-313. February 25, 2010 OPINION CHAPEL, JUDGE:

APPEARANCES ON APPEAL William H. Luker, Kathleen M. Smith, Oklahoma Indigent Defense System, P.O. Box 926, Norman, OK 73070, Attorneys for Appellant W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer J. Dickson, Assistant Attoney General, 313 N.E. 21st St., Oklahoma City, OK 73105, Attorneys for State OPINION BY: Johnson, P.J.; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Chapel, J., concur; Lewis, J., concur. 1. 21 O.S.2001, § 701.12(1)(2)(4)(7). 2. Appellant’s Petition in Error was filed December 20, 2007. Appellant’s Brief in Chief was filed October 27, 2008. Appellee’s Brief was filed February 24, 2009. Appellant’s Reply Brief was filed March 13, 2009. This matter was submitted to this Court on March 6, 2009. Oral Argument was held on September 29, 2009. 3. There was testimony that this weapon was an AK-47 or SKS assault rifle. 4. Johnson testified at trial that this meant to him that Appellant was going to shoot at them with a “chopper” which was an AK-47. 5. The trial court instructed the jury that Dalton and Robertson were accomplices as a matter of law. Both Dalton and Robertson were initially charged, along with Appellant, with two counts of First Degree Murder and one count of Discharging a Firearm with Intent to Kill, but prior to trial they each entered guilty pleas to the crime of Accessory After the Fact. 6. The record is clear that while defense counsel objected to the demonstration, he did not object to the investigator’s testimony. 7. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). 8. We certainly agree with the Committee that it is always prudent to ask this question when the death penalty is sought, and we strongly encourage trial courts to do so. 9. See Hanson v. State, 2003 OK CR 12, ¶ 6, 72 P.3d 40, 46-47; McCarty v. State, 1998 OK CR 61, ¶ 77, 977 P.2d 1116, 1135; Fitzgerald v. State, 1998 OK CR 68, ¶ 31, 972 P.2d 1157, 1170-71; Cannon v. State, 1998 OK CR 28, ¶¶ 4-7, 961 P.2d 838, 844. 10. The State makes no argument to the contrary, noting, along with Appellant, that the record indicates that the heinous, atrocious or cruel aggravating circumstance was intended to only be alleged with regard to Palmer’s murder. The 2nd Amended More Definite and Certain Statement to Support Allegations Contained in the Bill of Particulars In Re: Punishment explains how this aggravating circumstance applies to Palmer’s murder and makes no mention of Jones. That the jury was erroneously instructed on this aggravating circumstance with regard to Jones’ murder was brought to the trial court’s attention at formal sentencing by the prosecutor who opined that it would be stricken on appeal. Defense counsel did not disagree and the trial court acknowledged the error, dismissing it as a scrivener’s error. 11. See Malone, 2007 OK CR 34, ¶ 87, 168 P.3d at 219; Primeaux v. State, 2001 OK CR 16, ¶ 90-96, 88 P.3d 893, 909-10; Williams v. State, 2001 OK CR 9, ¶ 109, 22 P.3d 702, 727. 12. This Court referred the matter to the Oklahoma Uniform Jury Instruction Committee (Criminal) for an amendment to remedy the problem. Harris, 2007 OK CR 28, ¶¶ 26-27, 164 P.3d at 1114.

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2010 OK CR 5

¶1 Phillip Anthony Summers was tried by jury and convicted of two counts of First-Degree Malice Aforethought Murder, in violation of 21 O.S.2001, § 701.7(A), in the District Court of Tulsa County, Case No. CF-2004-2056 (Counts I and II). In the sentencing phase, the jury recommended a sentence of death for both murders, after finding the following three aggravating circumstances in relation to both: 1) that Summers was previously “convicted of a felony involving the use or threat of violence”; (2) that Summers “knowingly created a great risk of death to more than one person”; and 3) that there was a “probability” that Summers would “commit criminal acts of violence that would constitute a continuing threat to society.”1 In accordance with the jury’s recommendation, the trial court, the Honorable P. Thomas Thornbrugh, sentenced Summers to death on both counts. Summers has perfected this direct appeal of his convictions and sentences.2 FACTS ¶2 During the early evening hours of February 23, 2004, Ples and Shelly Vann were eating dinner and watching television in their Tulsa home, at 38 East 50th Place North, when at least two armed persons entered their home and shot them both to death. Ples Vann was found lying on the floor in the living room, just inside the front door, with a paper towel in his left hand and a piece of pork chop bone in his right hand. Shelly Vann was found on the floor about 15 feet away, partially under the dining table. She too had a paper towel in her left hand. The television was on, but the volume was muted, and a television remote control was found on the floor near Shelly Vann’s right hand. ¶3 According to the medical examiner, both Ples and Shelly Vann died as a result of multiple gunshot wounds. Ples Vann had three gunshot wounds, i.e., he was hit by three different bullets. He was shot once in the face, on the right side of his nose, by a bullet that grazed the underside of his brain and exited behind his left ear.3 He was also shot through his upper right arm, by a bullet that then entered the

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right side of his chest, passed through his lungs and also his pulmonary artery, and exited out his upper left back.4 Ples was also shot in the right thigh, by a bullet that went through his right thigh and then entered the inner part of his left thigh and lodged there.5 In addition, a bullet was found inside his white shirt, next to his skin.6 ¶4 Shelly Vann also had three gunshot wounds. She was shot once in the right upper chest, by a bullet that passed through her right lung and came to rest under the skin of her back, near the left side of her spine.7 She was also shot on the right side of her back, by a bullet that passed through both lungs, exited through the left side of her chest, and then went through her left arm before exiting again.8 Shelly Vann was also shot through her right upper arm, from back to front.9 ¶5 The medical examiner noted that he did not observe soot or stippling around any of the wounds on either victim, which indicated that the shots were fired from a distance greater than two or three feet away. A .45 caliber bullet was recovered from underneath the carpet directly below where Shelly Vann was found, which suggested that she had been shot at least once when she was already down.10 In addition, nine cartridge casings (“casings”) were found in the home, seven Wolf .45 auto casings and two CBC .380 auto casings. ¶6 Ples Vann was employed by the David L. Moss Center, i.e., the Tulsa County jail, and Shelly Vann was a homemaker. The Vanns had three sons: Donald Tennyson, Quantee Tennyson, and Lawrence (“Bud”) Tennyson.11 Quantee testified that he had eaten a pork-chop dinner with his parents at around 4:00 or 5:00 p.m. that day.12 He left afterwards and later got a phone call from his younger brother, Bud, asking for a ride home so that Bud could get dinner. Quantee, along with Lakisha Harris, picked up Bud and then a woman Bud was dating, “Tiffany,” later that evening. Quantee dropped off Bud and Tiffany and was about to drive away when Bud came running out of the home screaming that their mother and father had been shot and were dead. ¶7 A neighbor and friend of the Vanns, Kenneth Norman, testified that he was in his home watching television the night of February 23, 2004, when he heard as many as 10 or 12 gunshots, at around 7:00 or 7:30 p.m. Norman testified that he rolled off his couch and hit the 730

floor, since he did not know where the shots were coming from. He stayed on the floor for three or four minutes, listening for a car speeding away, but did not hear anything. He then got up, went to his own front door, and looked over at the Vann home, since there had been previous drive-by shootings there. Norman testified that the Vanns’ front door was open, though the screen door was closed, and that he watched for a while to see if Ples or Shelly would come to the door. When no one appeared at the door, Norman assumed everything was fine and went back to watching television.13 Norman testified that he did not hear or see anything else unusual that night, until he later heard Quantee out in the street crying, “They killed my mama and daddy.” ¶8 Bud testified that he talked to his mother around 6:00 or 7:00 p.m. that night about coming home to eat and then called Quantee asking for a ride.14 Bud testified that they arrived at the home of his parents around 10:30 or 11:00 p.m. and that the outside screen door was shut, but the main front door behind it was wide open. When he entered, he immediately saw his father lying rolled over on the floor, in front of the loveseat, which was in the living room very near the front door. At first Bud thought Ples had fallen asleep and rolled off the couch. He discovered that his father was dead and bloody when he bent down to help him up. Bud then looked around and saw that his mother was also lying dead on the floor across the room, in the area between the living room and the adjacent dining area. Bud ran out to tell Quantee what he had discovered. ¶9 Bud (and Tiffany) then got back in Quantee’s car, not sure what to do next. They drove around a bit and then went to the home of their neighbor, Kenneth Norman, to see if he had a gun. Bud testified that he wanted to get a gun in case someone was still in the home and that he did not even consider calling the police, because he “did not like being around the police,” since he was a member of the Neighborhood Crips gang.15 Bud testified, “I figured I could handle my own business,” and that within the gang culture this kind of thing would be handled “on the street.” Norman did not provide a gun, but Bud and Quantee decided to return home anyway.16 Bud testified that when they got back home, he searched his parents’ bedroom looking for his father’s gun — while his brother and the girls were in the living room crying — but

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he was unable to find it.17 At some point Lakisha Harris called “911.”18 ¶10 Bud testified that he immediately assumed that the killing of his parents was related to an ongoing, violent feud between his gang, the Neighborhood Crips, and a rival gang, the Hoover Crips.19 In fact, Bud, Quantee, and other witnesses all testified that the Vann home had been shot at in multiple drive-by shootings prior to the murders of Ples and Shelly Vann.20 Bud also testified that he was a “fairly high ranking member” of the Neighborhood gang and that various members of the Hoovers held him responsible for acts of violence committed against Hoovers.21 Officer William Ellis, who was the Tulsa police sergeant in charge of the organized gang unit at the time, testified about how the two gangs operated and could be recognized, common gang terms and practices, subsets of the gangs, and about the very violent rivalry between the Hoovers and the Neighborhoods at the time.22 ¶11 On February 25, 2004, two days after the Vann homicides, a tip came in to Tulsa police about a group of men in a black Ford Focus in North Tulsa, who were armed and possibly intending some kind of gang violence. Officer Timothy Ward was on duty in the Tulsa Police Department’s helicopter unit that night.23 Some time after 11:00 p.m. that night, Ward spotted a vehicle that appeared to match the description of the tip. Ward explained that the helicopter was equipped with a “Night Sun,” a 30-million, candle-power spotlight, which he shined on the car. After he did so, the car began speeding and driving erratically; so Ward alerted officers on the ground. The helicopter was also equipped with FLIR night-vision equipment, which detects heat and allows the viewer to see black-and-white images of things on the ground that produce heat.24 Ward used the FLIR to track the movements of the car and its occupants. The car turned into a residential area in North Tulsa, stopped in someone’s yard, near Main and Zion Street, and four persons bailed out of the car and ran. Ward continued to track the movements of these persons as best he could, using both the Night Sun and the FLIR, and communicated these movements to officers on the ground until all four men were apprehended shortly after midnight, within a few blocks of where the black Ford Focus was abandoned.25 ¶12 Roy Summers (brother of defendant Phillip Summers) and Gregory McKinney were Vol. 81 — No. 8 — 3/20/2010

apprehended together and first that night, followed by Robert Fellows and then Phillip Summers.26 Since no guns, drugs, or illegal items were found either in the car or on any of the men, and none had any outstanding warrants, they were all four released at the scene.27 Later that night, however, Tulsa police officers who were searching the area for evidence, with a dog from their K-9 unit, found a plastic baggie containing seven live rounds of Winchester .45 ammunition, which was tucked in a wide area of a tree trunk at 2400 North Main in Tulsa, within a few blocks of where the four suspects were apprehended.28 ¶13 Later that same morning, February 26, 2004, Officer Ronald Moulton, the supervisor of the Tulsa Police Department’s helicopter unit, reviewed the reports from the previous night and the FLIR recording. Moulton observed on the recording that at one point three individuals appeared to be crouched down together, possibly hiding something in some bushes near a large tree, and that another individual appeared to do the same thing near a fence. Officer Moulton and another officer went to the scene and located what appeared to be the tree from the recording. They were not able to locate anything suspicious near the tree, but when they searched the fence area where the lone individual had crouched down, they found a Bursa .380 semiautomatic pistol.29 The pistol, which was distinctive because its grips had been completely removed, was subsequently matched to the two .380 casings found in the Vann home.30 ¶14 Sergeant Mike Huff, a supervisor within the Tulsa Police Department’s homicide unit, testified that around 2:00 p.m. that same day, he received information that two young black males, who were associated with a red Cadillac, were looking through the bushes in the area where the .380 pistol had been recovered. Huff and Detective Mike Nance, who were well aware of the events of the previous evening and the recovery of the gun that morning, immediately went to the area to investigate, but the men and the Cadillac were already gone. On their way back, however, Huff spotted a “white over red” Cadillac parked in front of a home on Ute Place.31 Huff testified that they attempted to find a place where they could sit and watch the car, but that it was difficult to find a spot where they would not be noticed. And in just a few minutes, some young black males began looking out the windows of the home, and then four

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to six of these persons came outside. Huff recognized two people in the group: Robert Fellows and Phillip Summers. ¶15 Huff first called Fellows over and began asking him questions. When he then saw Summers, Huff “hollered” over to him and said something like, “Hey, come here.” Summers did not respond. Instead, he “bounced a little bit,” started to take off running, looked back to see if Huff was going to chase him, which he didn’t, and then ran off.32 Huff testified that Summers was wearing dark-colored jeans and either a black or navy “hoodie” (hooded sweatshirt), that Summers had his right hand in his hoodie pocket the whole time, even as he ran away, and that the pocket appeared to be “weighted down” with something inside.33 When Huff attempted to ask Fellows questions about what had happened the previous night on Zion Street, in connection with the abandoned Ford Taurus, Fellows denied being there or knowing anything about the incident. ¶16 Around 9:00 p.m., on March 4, 2004, Highway Patrol Trooper Patrick Davis was traveling southbound on Interstate 244/Highway 75 in Tulsa, when a blue Ford Tempo came into his lane from the adjacent lane and nearly hit him. Davis immediately put on his lights, pulled in behind the car, and attempted to stop it. As the Tempo pulled toward the shoulder, the passenger-side door opened and a man got out. Davis got out of his car, pulled out his gun, and repeatedly ordered the man to stop and get on the ground, but the man simply jumped the guardrail and ran away. Davis testified that the man had his right hand in the front pocket of his black hoodie the whole time and that he believed the man was likely carrying a gun or other weapon. ¶17 Since he was alone, Davis did not pursue the man, but stayed with the stopped car and its two other occupants and radioed for assistance.34 Within about 20 minutes, Davis was informed that a man matching the description he had given had been located by Tulsa police officers a few blocks away, at Webster High School. Davis went to that location and identified the man being held, Phillip Summers, as the man who had jumped out of the car and ran.35 Summers initially refused to give his name, and he denied being the person who had jumped from the car.36 Summers was booked into jail on a complaint of obstructing an officer, but no charges were ever filed, and he was released.37 732

¶18 Tulsa police officers called for a K-9 unit to come to the scene that night, hoping to find a weapon or contraband along the path between the initial stop and Webster High School, where Summers was arrested. Although officers used an article of Summers’ clothing to give their dog his scent, nothing was found. Nearly one month later, however, on April 3, 2004, Karry Jordan was preparing to cut down a tree with his neighbor, along their fence line, when he saw a gun lying along the base of the tree, hidden in a bunch of thorny briars. Jordan picked up the gun, unloaded it, took the clip out, and called the police. Jordan lived between the spot where the car had been stopped and Webster High School and remembered the police search on the night of March 4.38 The gun found by Jordan was a .45 caliber semiautomatic Glock, Model 21. It was later matched to the seven .45 casings found in the Vann home.39 ¶19 On March 19, 2004, Greg McKinney gave a statement to Tulsa police officers regarding what had happened on the night of February 23, 2004, naming Robert Fellows and Phillip Summers as the men who entered the home at 38 East 50th Place North and shot Ples and Shelly Vann. On May 6, 2004, first-degree murder charges were filed against Robert Fellows for the killing of the Vanns. And on May 17, 2004, Phillip Summers was added as a defendant in the case and charged as acting “in concert” with Fellows on both murders. A Bill of Particulars, seeking the death penalty, was later filed against both Fellows and Summers, on December 20, 2004. No charges were ever filed against Greg McKinney. ¶20 On October 27, 2004, McKinney was the State’s star witness at the preliminary hearing of Fellows and Summers. McKinney acknowledged that at the time he was arrested, on March 4, 2004, he was on probation for a prior offense of drug possession with intent to distribute. And by the time of the preliminary hearing, McKinney’s five-year deferred sentence on that charge had been accelerated, and he was incarcerated on that offense. McKinney denied being offered any consideration for his testimony and maintained that he was testifying against his fellow Hoovers simply because, “It’s the right thing to do.”40 ¶21 McKinney testified that on the night of February 23, 2004, he got picked up by Fellows and Summers. They went to a Tulsa hotel where they basically rented a “smoker’s car,” i.e., Fellows gave a woman (who McKinney did

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not know) “some dope,” so that they could use her car for the night.41 They then drove around for about 45 minutes smoking marijuana, with Fellows driving, Summers in the front passenger seat, and McKinney in the back. At some point Fellows drove to 38 East 50th Place North and parked the car out front. McKinney testified that he did not know whose house it was or why they were there and that the others did not tell him. McKinney testified that Fellows and Summers, both wearing dark pants and dark hoodies, jumped out and went up to the front door of the home, with their hands in their hoodie front pockets. The car was left running but with the lights off, and McKinney maintained that he simply stayed in the car smoking marijuana the whole time. ¶22 McKinney testified that he saw Fellows knock on the front door (with his right hand) and that a large, older, dark-skinned black man, wearing a white t-shirt, came to the front door.42 The man who answered the door was much taller and somewhat heavier than both Fellows and Summers.43 According to McKinney, Fellows and Summers entered the home, and shortly thereafter he heard five or more gunshots, which sounded like mini-explosions. After about 45 seconds Fellows and Summers came out, walked to the car, and they drove off. McKinney testified that no one said anything or explained what had happened, and that he didn’t ask.44 They then went to the home of “some females,” where they hung out, watched t.v., and smoked marijuana for a while. McKinney testified that while they were there, Fellows pulled a black .45 semiautomatic Glock out of his hoodie pocket and that Summers got a silver .38 semiautomatic, without pistol grips, out of his hoodie pocket. McKinney testified that the two men placed these guns on the table and that they picked up the same guns and put them back in their hoodie pockets when they left. McKinney testified that Fellows and Summers then dropped him off at his home and that they never said anything to him about what had happened. ¶23 McKinney testified that he learned about the double homicide the next morning, when he saw it on television. He also testified that two weeks earlier he had heard Fellows say, in front of a bunch of people, “If we can’t get Bud, we’ll get somebody close to him.”45 McKinney acknowledged at the preliminary hearing that he was part of the stop on February 25, 2004, claiming that he simply walked away from the Vol. 81 — No. 8 — 3/20/2010

car, although the others ran, as well as the stop on March 4, 2004, which led to his pending possession charge. McKinney was unable to testify at trial, however, since he was murdered on August 9, 2005.46 ¶24 By the time of the January/February 2008 trial of Phillip Summers, the State had given Robert Fellows what has to be described, based on both timing and content, as a true “sweetheart deal.” On February 14, 2007, the State dropped the two counts of capital, firstdegree murder that it had filed against Fellows in the Vann double-homicide case, in exchange for his plea of guilty to two counts of accessory after the fact. According to the deal, Fellows would be sentenced after he testified against Summers at trial, and his State sentence would be entirely concurrent with his sentence in a separate federal racketeering case, i.e., Fellows would not do any additional time for his role in the murders of Ples and Shelly Vann. Fellows acknowledged at the outset of his trial testimony that he had numerous prior convictions, including two counts of possession of cocaine with intent to distribute, racketeering conspiracy, and two counts of shooting with intent to kill.47 On cross examination Fellows also acknowledged that at the time the Vanns were murdered, he was on probation for a separate possession of crack cocaine offense, with a sentence of six years. ¶25 Fellows testified that he joined the Hoover Crips gang when he was about 13 or 14 years old and that his street name was “Robo.” He testified that the following persons were also members of the Hoover gang: Greg McKinney (“Act Bad” or “Act Cad”), Phillip Summers (“Phil Phil” or “Stay High” or “Ste-Hi”), Roy Summers (“Long John”), Michael Summers (“Mikey D”), Roleitha Summers, Curtis Dion Jones (“Straight Face”), and Mark Bell (“Baby Morton”).48 Fellows described the ongoing and violent gang rivalry between the Hoover Crips and the Neighborhood Crips and testified that he personally had been involved in five to ten shootouts with Neighborhood gang members.49 Fellows testified about the importance of respect/disrespect in the gang culture, the idea of “putting in work,” i.e., doing things for your gang, and also “getting stripes,” i.e., earning the respect of fellow gang members by killing a rival gang member. Fellows testified that Bud Tennyson was a prominent member of the Neighborhood Crips and that he was considered a major target or

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“major stripe” among the Hoovers. Fellows also testified that in late 2003 and early 2004, there was a belief among the Hoovers that Bud Tennyson was responsible for the murder of Charlie Woo Summers (brother of Phillip Summers), who was killed in December of 2003.50 In particular, Fellows testified that he had heard Phillip Summers talk about wanting to kill Bud Tennyson, because Bud “had been putting in work in the neighborhood and it would be a major stripe to kill him.”51 ¶26 Fellows testified that on February 23, 2004, he was with Phillip Summers, Paul Summers, Greg McKinney, Mark Bell, and some women, at an apartment in the Sunset Apartments complex, “[s]itting around smoking marijuana and talking about selling drugs and making money, the usual.”52 Fellows testified that Paul Summers had a .40 gun, Phillip Summers had a .45 Glock, and McKinney had a .380 pistol with broken grips.53 Fellows testified that he himself did not have a gun that day and that his right arm was in a full-arm, L-shaped cast, as a result of being accidentally shot by McKinney.54 After it got dark, Fellows left with Phillip Summers and McKinney. Fellows testified that he was driving his own red Cadillac, which had a white top, and that he hoped to get some money from a woman known as “Chocolate,” who owed him from an earlier drug deal.55 ¶27 Fellows testified that they met up with Chocolate and another woman, who called herself “Trouble,” at a Tulsa hotel on Admiral. Fellows testified that he got his $40 from Chocolate, but that they then decided to go out and try to buy her some ecstasy pills. And they decided to take Chocolate’s car, which was a green Pontiac four-door.56 Fellows testified that he drove to a couple of different locations to get ecstasy for Chocolate, but was unable to get any. He claimed that he was “about to give up and just take Chocolate her car back,” when Phillip Summers stated that he knew a place where Fellows could get some ecstasy. According to Fellows, Summers then directed him to 38 East 50th Place North, a place where Fellows had never been and that he did not recognize, though he did know it was in Neighborhood Crip territory. Fellows testified that while they were driving there, Summers was sitting in the front passenger seat, with his .45 Glock in his lap, and that McKinney was seated in back, with his chrome .380 in his lap. All three men were wearing dark blue hoodie sweatshirts and jeans. 734

¶28 As they approached the home, Summers directed Fellows to slow down, turn off his lights, and pull into the driveway behind the Cadillac that was already parked there.57 Fellows testified that he stayed in the car, with his engine running, while Summers got out, put up his hood, and then urged McKinney to “come on Act Cad.” According to Fellows, Summers and McKinney then went up to the front door of the home, with their guns hidden in the front pocket of their hoodies. Fellows testified that the home was dark, but he could see the glow of a television set inside. Fellows testified that he saw Summers knock on the door and could tell that someone had answered the door and opened it slightly, though Fellows could not see who answered or hear what was said, since his car windows were rolled up.58 Fellows testified that after a few seconds, he saw Summers pull out his gun and start shooting as he entered the home. Fellows testified that he heard multiple gunshots after Summers went into the home, while McKinney just stood there on the porch “looking like he was shocked.” Fellows testified that after a while Summers came out of the home and was making “argumentative gestures” toward McKinney and appeared to be “cussing him out.” At that point, according to Fellows, McKinney leaned into the home, holding the door jamb with his right hand as he took one step into the home, and fired a couple of shots from his .380, using his left hand. Afterward, Summers and McKinney came back out, walked to the car, got in, and told Fellows to drive away.59 ¶29 Fellows testified that he began driving back to the hotel where they had met Chocolate, in order to get his car back. He also testified that on the way there, Summers told him that they had been at “Bud’s house” and that Bud was not at home, so Summers “shot the guy that opened the door.” Summers also told Fellows that he “seen Bud’s mom and she looked just like Bud, so he had to shoot the bitch.” According to Fellows, McKinney did not say anything. Fellows testified that he was shocked and had not expected anything like that to happen.60 Fellows further testified that even within the gang culture, women and children are considered off limits. He explained, “You just don’t touch them. You don’t want anybody touching yours.” ¶30 Fellows testified that when they got back to the hotel where they had left his car, they switched cars without talking to Chocolate

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(leaving her car keys under her front seat) and left.61 They then returned to the Sunset Apartments, where the three of them hung out for a while with Paul Summers, smoking marijuana and listening to music. Fellows testified that after about 45 to 60 minutes, he and Phillip Summers left together to pick up their girlfriends. They later went to a home on Knoxville, where they met up with a woman named “Sandy,” who helped them rent a hotel room where they and their girlfriends stayed that night. Fellows testified that he saw a news report about a double homicide on television that night, which showed the house where they had been, but that they did not talk about what had happened at all. ¶31 Fellows testified that the next morning they dropped off their girlfriends and returned to the home on Knoxville, so Summers could change clothes. Later that day, February 24, 2004, they went to the home of Linda Bell, mother of Mark Bell.62 While they were there Fellows, Phillip Summers, Mark Bell, and Curtis Jones went into a back bedroom and had a conversation. Fellows testified that Jones asked Summers about the murder of the Vanns and that Summers responded, “We smoked a napnigger’s mama.”63 Fellows testified that when Jones questioned Summers further, Summers told Jones that Fellows “just drove the car.”64 Fellows testified that Summers also told Jones that he had knocked on the door and asked for Bud, but Bud wasn’t there, “so he [Summers] said he shot the nigga that answered the door, and then he seen Bud’s mama try to run and he said the bitch tried to run, so he shot her.” Fellows testified that Summers had his .45 Glock in his lap as he told the story and that Summers “just laughed” about what had happened.65 ¶32 Regarding the night of February 25, 2004, Fellows testified that he was driving a black Ford Focus and that Phillip Summers, Roy Summers, and McKinney were with him. Fellows testified that they were all wearing dark hoodie sweatshirts and dark clothing and that they were all armed. This time Fellows had a .32 automatic; Roy Summers had a MAC 11; McKinney had his .380; and Phillip Summers had his .45 Glock.66 Fellows testified that Roy Summers was driving; Phillip Summers was seated in the front passenger seat; McKinney was seated in the back behind Roy Summers; and he was seated behind Phillip Summers. When asked why they ditched the car and ran, Fellows stated that it was a “smoker’s Vol. 81 — No. 8 — 3/20/2010

car,” that they were not sure if it had been reported stolen, that it should have been returned already, and that they were carrying drugs and guns. Fellows testified that they all went and stashed everything that they had under a tree and then took off running.67 Fellows testified that after being apprehended and interviewed by police that night, they all simply walked to McKinney’s grandma’s house and got a ride home. ¶33 Fellows acknowledged being contacted by Tulsa police officers later that same day, February 26, 2004, about what had happened the previous night and that he lied to them and denied being a part of it. Fellows testified, “That is what you are supposed to do when you come in contact with the police on the streets.” Fellows noted at trial that he was taken into custody in late April of 2004 for his role in the Vann homicides. Fellows acknowledged that he did not like Bud Tennyson and that if he had had the opportunity, he would have been willing to shoot him. He maintained, however, that he would not shoot women and children.68 Fellows testified that during Summers’ trial he was being held in a county jail under an alias, because he was now a “snitch,” and that snitches “get killed.” Fellows testified at trial that although he hated snitches, he decided to cooperate in the Vann case “because I did not want to die for something I did not do”; and he insisted, “I didn’t kill anyone.” ¶34 Tanisha Pearson testified that in early 2004 she was an exotic dancer and went by the name “Chocolate.” She testified that she knew Fellows, McKinney, and Phillip Summers, and that she had dated Roy Summers. She testified that on February 23, 2004, she was staying at a hotel on Admiral in Tulsa, with her friend Kelly Nixon, who was known as “Trouble.” Pearson testified that she loaned her green, four-door Pontiac Bonneville to Fellows and McKinney that night, so Fellows could get some ecstasy for her and Nixon.69 Pearson also testified that she talked with Fellows, McKinney, and both Roy and Phillip Summers at the Sunset Apartments on the night of February 25, 2004. She testified that the four men were in a black Ford Focus and that after talking with Roy, she became worried that they were going to get into some kind of violent gang conflict.70 So Pearson contacted an ATF (Alcohol, Tobacco and Firearms) agent that she knew, Peggy Tobin, about what she knew and her concerns.71

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¶35 Roleitha Summers testified that she was the older sister of defendant Phillip Summers.72 She began her testimony by acknowledging that after originally being charged with racketeering in the federal conspiracy case against various Hoover gang members, on December 7, 2005, she agreed to plead guilty to intimidating a witness, namely, Tanisha Pearson.73 Roleitha testified that as part of her plea agreement, she agreed to assist the government and to testify whenever asked to do so, by any government entity, and in particular, to testify against her brother Phillip in the current case.74 In exchange, Roleitha was ultimately sentenced to just 54 months of probation, with credit for the time she had already served, and was thereby allowed to go home and parent her daughter, who would have been 5 years old at the time.75 ¶36 Roleitha testified that while she was still a young teenager, she was “jumped in” to the Hoover Crips gang on 57th Street in Tulsa.76 Roleitha testified that being “jumped in” means agreeing to fight and basically be “beat up” by other gang members, and that her younger brothers Roy, Paul, and Phillip watched as she was beat up by older Hoover males.77 She testified that she sometimes had to help support her family and that she did so by selling drugs and by stealing cars and then selling their parts. On cross examination, Roleitha admitted that she had sold drugs more times than she could count (certainly more than 100) and that she had probably stolen “hundreds” of cars. She admitted being the “enforcer” for the Hoover Crips among female members, i.e., when other girls got “out of line,” she would get called to “take care of business.” Roleitha testified that she was “violent,” fought “a lot,” and always carried a gun — though she denied ever pulling the trigger or earning a stripe. ¶37 Roleitha testified that she was a “major player” in the Hoover gang at the time of the Vann murders, though not at the time of trial. She also freely admitted that she still “despised” members of the Neighborhood Crips, whom she described as “offies” and “nap-niggers.” She testified that Bud Tennyson was a muchhated Neighborhood Crip and that it would have been a “major stripe” for any Hoover to kill or harm him. Roleitha testified that although she did not know who killed her brother, Charlie Woo, it was rumored among Hoovers at the time that Bud was responsible. 736

¶38 Roleitha also testified that some time after the shooting of the Vanns, she met up with her brother Phillip in the home of Chris Ann Carter.78 Roleitha testified that although the house was “full of people,” she pulled her brother aside near the kitchen and asked if he had been involved in the shooting of the Vanns. She testified that she confronted Phillip because “that was the word on the street” among Hoovers, and she did not want to believe it. She testified that Phillip responded that he went to the home looking for Bud and that he “didn’t mean to,” but that he shot Mrs. Vann “because she looked just like Bud.” Roleitha further testified that Phillip told her that McKinney and Fellows were with him, that McKinney “shot the daddy,” and that Fellows drove the car. According to Roleitha, Phillip also told her that they were using Tanisha Pearson’s car, who she also knew as “Chocolate.”79 ¶39 Roleitha testified that she remembered Fellows being in an arm cast at the time, because McKinney had shot him in the arm. She identified the .380 with the “messed up” handle as a gun she had seen with McKinney.80 She further testified that it was a “common occurrence,” which she had frequently witnessed, for guns to be traded around among members of their gang set.81 ¶40 Roleitha testified that growing up she had had a “good relationship” with her brother Phillip. When asked why she was testifying against him, Roleitha responded, “Because I don’t want to leave my little girl no more.” When asked by the prosecutor if there were any other reasons for her testimony, such as not wanting to be part of “all this killing” any more, she responded: “No. Because if it weren’t for her, I wouldn’t be doing it.”82 According to the record, Roleitha became overcome with emotion at least once during her testimony, and she acknowledged that she could not look at defendant Phillip Summers “[b]ecause that’s my brother.” Roleitha also agreed that after being out of jail and back with her little girl for two years, she’d “do about anything” to make sure that she did not have to go back to jail. ¶41 Brandi Summers testified that she was the wife of Charlie Woo Summers and that he was murdered on January 16, 2004.83 Brandi acknowledged that she received a letter from her brother-in-law, Phillip Summers, in May of 2004, a copy of which was available at trial.84 Brandi explained the meaning and significance of various gang symbols, slang, and abbrevia-

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tions in the letter, including tombstones marked “C-Woo GIP” and “T-baby GIP,” as referring to Charlie Woo and Teresa Summers, both of whom were violently killed, as “Gangsters in Peace.”85 Brandi testified that she interpreted the letter from Phillip as asking her to basically find out what she could about the case against him.86 She further testified, in response to defense questioning, that the letter indicated to her that her brother-in-law was “scared” that he was “possibly going to be charged with murder and he doesn’t know why” and that she did not see anything in the letter suggesting that he was admitting to killing the Vanns or anyone else.87 Brandi testified that she interpreted the letter as requesting that she “assist [Phillip] in defending the case,” but she denied ever replying or doing anything at all in response to his request. ¶42 Brandi also denied having any idea what Phillip was referring to in the letter’s various references to “Act-Cad,” i.e., Greg McKinney.88 Brandi further testified that in discussions among Summers family members and their associates after the murder of her husband, the only name she ever heard as a possible suspect was Cornelius Finch, who had since also been murdered. She further testified that the first time she ever heard the name of Bud Tennyson even mentioned in connection with her husband’s murder was a few weeks before Phillip Summers’ 2008 trial.89 ¶43 Robert Yerton, a fingerprint expert from the Tulsa Police Department’s forensic laboratory, testified at trial about all the items related to the Vann homicide that he examined and from which he attempted to glean fingerprint evidence. In particular, he examined the following items visually, with a laser, and then through the use of a Super Glue “fumes tank” technique: the Bursa .380 and its cartridge, magazine, and ammunition; the Glock .45 and its empty magazine; the seven .45 casings and the two .380 casings found at the scene; and the plastic baggie and ten rounds of Winchester .45 cartridges found under the tree. Yerton testified that despite all this effort, not a single latent fingerprint was even recovered from any of these items. ¶44 In fact, the only fingerprints that were recovered in connection with the Vann homicides were a number of latent fingerprints that were recovered from the storm door at the Vann home. Yerton testified that he compared all the prints recovered from the storm door to Vol. 81 — No. 8 — 3/20/2010

the known prints of Ples and Shelly Van, Bud and Quantee Tennyson, Robert Fellows, Greg McKinney, and Phillip Summers; but none of the prints on the door could be matched to any of these persons. Yerton testified that the prints recovered from the screen door were also put into Oklahoma’s computer fingerprint database, known as AFIS (Automated Fingerprint Identification System), but no “matches” for any of the latent prints recovered from the door were found that way either.90 Yerton noted that before he even began processing the Glock .45, the empty Glock magazine, and the Winchester .45 live cartridges, he swabbed them all for potential DNA evidence.91 ¶45 Valerie Fuller, the State’s DNA expert, subsequently testified that she analyzed all the DNA evidence obtained in the case.92 Fuller testified that on both the Glock .45 handgun and the magazine associated with that gun, she found DNA material from at least two different people.93 She did not, however, obtain any DNA material from the swabbings associated with the Winchester ammunition. Fuller further testified that both Robert Fellows and Phillip Summers were excluded as possible donors to the DNA material found on both the Glock and its magazine. Fuller also testified that she tested the DNA swabbings that were taken from the Bursa .380 handgun, its magazine, and a single cartridge associated with that gun. She testified that DNA material was found on both the Bursa gun and its magazine that appeared to be a mixture of two male persons.94 Fuller testified that both Fellows and Phillip Summers were excluded as possible donors to the DNA material found on the .380 and its magazine, but that Greg McKinney could not be excluded, i.e., McKinney was a possible contributor to the DNA found on these items. ¶46 Finally, Fuller testified that she analyzed the swabbings of the .45 casings found at the crime scene and that on one of the casings, she recovered a mixture of DNA material from at least two people. Fellows, McKinney, and Phillip Summers were all excluded as potential donors to this mixture. Fuller acknowledged that she was never asked to analyze any potential DNA evidence from swabbings of the Vanns’ storm door. She also acknowledged that she did not find any DNA evidence whatsoever in the case that potentially matched Phillip Summers. Hence Summers was excluded as a possible donor regarding all the fingerprint

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evidence and all the DNA evidence recovered in connection with the Vann double homicide. ¶47 Within his case-in-chief, Defendant Phillip Summers presented the preliminary hearing testimony of Greg McKinney, which was read by persons playing each role. Summers also presented the testimony of various witnesses who suggested that Fellows had lied about not being a shooter in the Vann home and that he should not be believed. Officer Roger Smith, a Tulsa police officer, testified that on April 29, 2004, while he was guarding Fellows prior to his transport back to jail, Fellows asked him, “Which gun was my DNA found on?”95 Victor Miller, who was well known to the Tulsa district attorney, also testified on Summers’ behalf.96 Miller testified that during 2005 he was incarcerated at the David L. Moss Center jail, along with Robert Fellows and Bud Tennyson. He testified that Fellows approached him while they were in a recreation area and asked Miller if he knew anything about forensics and the law. Miller testified that when he asked Fellows what he was talking about, Fellows told him that “him and his homeboy went over to some people’s house and they went and handled their business.” Miller testified that he was familiar with what Fellows was accused of and that he interpreted Fellows as talking about killing some people. Miller further testified that he did not specifically recall the name Fellows mentioned as his “homeboy,” but that the name was not Phillip Summers.97 Miller further testified that a few days later he observed an exchange between Fellows and Bud Tennyson. Miller testified that as Fellows was being brought in from the recreation area at the jail, he heard Bud call out to him from his cell, “Man why did you kill my moms and my pops, man?” And according to Miller, Fellows responded, “I done it because you is a bitch.”98 ¶48 Finally, Summers presented the testimony of Officer Derrek Lewis, the Tulsa police officer who was originally the lead investigator in the Vann double homicide. Lewis acknowledged that he had been to the Vann home prior to the February 2004 homicides, because the home had been “shot up quite a bit” in earlier drive-by shootings. Lewis testified about how the entire Vann homicide investigation and prosecution had “evolved” over the years, from being focused on Fellows and Summers as the shooters, because he and others believed Greg McKinney, to the belief that McKinney 738

and Summers were the shooters. Lewis acknowledged a number of Crime Stoppers tips that came in regarding the case, including one on May 24, 2004, which named “Ray Campbell” as the person who had killed the Vanns. Lewis acknowledged that no effort was made to follow up on this particular tip, probably because it was anonymous. Lewis also gave his opinion, based upon his experience in the field, about how the events most likely transpired in the Vann home on the night of the shootings, although Lewis admitted that neither the medical examiner nor any other investigating officer had testified in support of his particular theory.99 ¶49 The State presented a single witness in its rebuttal case: Bud Tennyson. Bud acknowledged being in segregation at the David L. Moss Center jail in 2005, but denied knowing or ever speaking to Victor Miller. Bud admitted that he did see Robert Fellows there and that he attempted to ask Fellows why he killed his parents. Bud testified that he was in the recreation area at the time and could see Fellows through the window of Fellows’ cell, which was on the second floor, and that although they could not hear each other, they could read each other’s lips. Bud testified that he mouthed the question, “why he killed my mommy and daddy” and that he added to Fellows, “you got a mommy and daddy just like I have a mommy and dad.” According to Bud, Fellows responded by mouthing the words, “I didn’t kill your mama and dad.” Bud denied ever having the conversations described by Miller. ANALYSIS ¶50 In Proposition I, Summers alleges that his right to a fair trial was violated when the trial court refused to let him present the testimony of Cleon Christopher Johnson, who was present and willing to testify at trial, as himself having responsibility in the Vann homicides and in support of Summers’ “alternative perpetrator” defense that “Demarco Campbell,” and not Phillip Summers, was the third Hoover male involved with the shooting of Ples and Shelly Vann.100 In addition, Summers asserts that his trial counsel was ineffective for failing to more fully develop the Johnson evidence and other evidence that would have supported this alternative perpetrator defense.101 ¶51 After defense counsel gave notice of its intent to present the alternative perpetrator testimony of Cleon Johnson, the State filed a

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motion in limine attempting to prevent this testimony and to prevent any argument from defense counsel that either Johnson or “Marco Campbell” had any responsibility for the murders of Ples and Shelly Vann.102 Just before the defense team began presenting evidence in Summers’ case in chief, the trial court held an evidentiary hearing on this motion and ultimately allowed Johnson, who was present and available, to testify in court, without the jury present, about what he knew about the Vann case.103 Before beginning his actual testimony, Johnson was sworn in, warned about the penalty for perjury, and also specifically warned that if he admitted participating in a first-degree murder, his testimony could be used against him in a prosecution on this charge and that the possible punishments for this crime in Oklahoma are life, life without parole, and death. ¶52 Cleon Johnson then testified as follows.104 Johnson began by admitting that he had been convicted of “a whole bunch” of felonies and that he was then incarcerated in state prison based upon convictions for robbery, murder, and three counts of shooting with intent to kill. He acknowledged that based upon his sentences on these convictions, some of which were consecutive, there was “a high probability” that he would never be released from prison. Johnson acknowledged knowing Phillip Summers, but testified that he himself was a member of the “1077 Hoover Crip gang,” which is a different Hoover set than that of Phillip Summers. Johnson denied talking to Summers in the preceding five years and denied owing any favors to members of the Summers family or any associates of Phillip Summers. ¶53 Johnson testified that in late 2003 and early 2004, he was a “shot caller” within the Hoover Crips, with the power to order a killing, and that he “was the one who put the hit on Bud [Tennyson].”105 Johnson testified that he was “locked down” in F-24 at the David L. Moss jail with Demarco Campbell and Greg McKinney, in mid to late 2003, and that they used to go to the recreation yard together.106 Johnson testified that he was with Campbell and McKinney “in the yard” at the jail when he ordered them to kill “Bud and whoever else [was] in the house.”107 Regarding motive, Johnson testified that he once witnessed Ples Vann (who worked at the jail) and Demarco Campbell get into a “heated” disagreement, and that afterward Campbell told Johnson that he wanted to kill Ples, his wife, Bud, and Quantee. Vol. 81 — No. 8 — 3/20/2010

Johnson testified that he was opposed to the idea at first, “because, you know, I mean, we have a code, no women and children.” Johnson testified that he changed his mind, however, after Bud killed his best friend, “Denon Woods” or “Little Wet.”108 Johnson testified that at that point, he told them “enough is enough” and ordered the hit, i.e., “kill Bud and whoever else [is] in the house.”109 ¶54 Johnson further testified that some time after the Vanns were killed (on February 23, 2004), Campbell was re-arrested and brought back to David L. Moss and that they ended up in the segregation area together. According to Johnson, Demarco Campbell reported back that he had done what Johnson asked him to do and “exactly how everything went down.” In particular, Campbell reported that he and some other Hoovers had killed the Vanns, but that there was “one problem”; they had gotten wrong information from a Hoover stakeout of the home, and Bud was not actually at home at the time. Johnson testified that Campbell then told him what had happened and that the participants were himself, Robert Fellows, Greg McKinney, and Tanisha Pearson. ¶55 According to Johnson, Pearson, i.e., “Chocolate,” was used “as a decoy” to knock on the door, because they did not think the Vanns would open their door to two men that they had never seen before. According to Johnson, Campbell said that they forced Pearson to knock on the door, even though she was “worried about getting her fingerprints on the door,” while the men hid on the side of the house, and that when Ples Vann opened the door, “they rushed off in there and opened fire.” According to Johnson, Campbell said that they shot Ples Vann in the leg and that after he fell, they shot him in the head with the .380, and then they shot Shelly Vann with the .45. Johnson testified that Campbell initially said that he was the first one in and had shot Ples Vann in the face, but that Campbell later said he was “just in the car” and did not have a gun, but that McKinney had a .380 and Fellows had a .45. Johnson further testified that McKinney and Fellows, who were also incarcerated at the jail after the killings, told him “the exact same story.”110 ¶56 When asked about any specific facts that would “lend credence” to what Campbell told him, Johnson further testified that Campbell told him about Ples being shot in the leg and head, that Shelly was shot in the back, and that

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they were “cooking or something.” Johnson added, “It was pork chops or something and, you know, [Campbell] said it smelled good off in the house and that he wanted to make a plate.” Johnson also noted that Campbell told him that Ples Vann had a pork chop in his hand that night.111 When Johnson was asked how he knew that Campbell’s story about what had happened was “reliable or truthful,” Johnson testified that “Gregory McKinney and Robert Fellows also told me the stories and all their stories was exactly the same.”112 ¶57 Johnson admitted that it was not until January 25, 2008, just five days earlier, that he first acknowledged (to a defense investigator) that he was the one who ordered the hit. Johnson testified that when he earlier spoke to a defense investigator, on April 4, 2006, he told this investigator that Demarco Campbell killed the Vanns, along with McKinney, Fellows, and Pearson (Chocolate), and that Pearson was used as a decoy to get the Vanns to open their door.113 When asked why he was now admitting his own role in the double homicide, Johnson testified that he had had a “change of heart” and “needed to do what is right.”114 ¶58 During cross examination Johnson admitted that he had testified before the federal grand jury, but said he was only asked about “Michael Summers and the Summers boys.” Johnson asserted that “[t]hey wanted me to sit there and lie on the Summers boys because they been trying to get the Summers [boys] for the longest.” The prosecutor then impeached Johnson with his federal grand jury testimony from March 3, 2004.115 When he was shown his grand jury testimony, Johnson initially testified, “I see this, but I don’t remember saying none of this.” He later acknowledged that the transcript shown to him at the evidentiary hearing was his earlier testimony. ¶59 Although the exact content of Johnson’s federal grand jury testimony is not entirely clear in this record, Johnson’s story before the federal grand jury was apparently quite different from his testimony at Summers’ trial. In the federal case, Johnson had testified that “Long John” (Roy Summers) said that his brother “Tom Tom” (Paul Summers), Marco Campbell, Mike D Summers, Monte Reed, someone named “Tyrone,” Arthur Bradley, and “a female” were all involved in the shootings of Ples and Shelly Vann, but that Bradley stayed in the car.116 According to this story, Mike D had the female go up and knock on the door, which 740

is “how Mike D usually set people up,” while Monte Reed, Marco Campbell, Paul Summers, and Tyrone were on the side of the house. Then when Ples Vann opened the door, “Marco rushed up there and shot him in the face and in the chest, and then the mama, I guess she was trying to run to the back room or whatever, and Paul Summers came in there and shot her in the arm and the back and stuff.” ¶60 After his grand jury testimony was read to him, Johnson was asked whether it was his testimony, to which he responded, “I guess,” and whether it was true, to which he responded, “No.” When asked if he lied to the grand jury, Johnson testified, “They told me to.” When pressed further if he had lied, Johnson responded, “Yes, sir, I sure did.” After both parties then indicated that they had no further questions for Johnson, the trial court announced that since Johnson had admitted to committing perjury before the federal grand jury, he was officially committing Johnson, under 21 O. S.2001, § 501, to the custody of the Sheriff, for possible perjury proceedings “on the federal side.” ¶61 The trial court then inquired whether Defendant Summers was still proffering Johnson’s testimony. After defense counsel announced that Summers was indeed still proffering this testimony, the trial court ruled: “Denied on two grounds. Number one, it is hearsay, which is inadmissible. Secondly, it is inherently unreliable. There is no clear corroborating circumstance brought to my attention which would indicate the truthfulness of this statement.”117 Summers asserts, in Proposition I, that this trial court ruling violated his fundamental constitutional right to a fair trial and, in particular, his right to present evidence that someone other than himself was the perpetrator. ¶62 In its 2006 decision in Holmes v. South Carolina,118 the United States Supreme Court proclaimed, as it had in the past: “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’”119 After reviewing its seminal cases on this topic, the Holmes Court summarized: While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or

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that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.120 The Holmes Court noted that the Constitution permits judges to exclude evidence that is (1) repetitive, (2) only marginally relevant, or (3) poses an “undue risk” of harassment, prejudice, or confusion of the issues.121 The Court recognized that the principle that defendants must be allowed a “meaningful opportunity to present a complete defense” is particularly important in cases where a defendant desires to present evidence that someone else, other than the defendant, committed the crime(s) at issue, i.e., third-party perpetrator evidence.122 ¶63 The defendant in Holmes was convicted of beating, raping, and robbing an 86-year-old woman, who later died from her injuries.123 Extensive forensic evidence was presented at his trial, including evidence that Holmes’ underwear was found to contain DNA from both Holmes and the elderly victim.124 Holmes contested the reliability of the State’s forensic and other evidence at trial, and he wanted to put on evidence that another man, Jimmy McCaw White, was the one who had attacked and killed the victim.125 However, the trial court refused to let Holmes present this third-party perpetrator evidence, and the South Carolina Supreme Court affirmed Holmes’ convictions, based mainly upon the strength of the State’s forensic evidence.126 ¶64 In Holmes, the United States Supreme Court vacated this decision, based upon its conclusion that the rule applied by the South Carolina Supreme Court did not “rationally serve the end” that such evidentiary rules are “designed to promote, i.e., to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues.”127 And evidence that a third party, not on trial, has admitted to committing the crimes at issue cannot be said to have a very weak “logical” connection to the central issues at a trial involving these same crimes. Hence the Supreme Court reversed the decision of the South Carolina Supreme Court, which had affirmed Holmes’ convictions, despite the strength of the State’s case against Holmes, i.e., despite the fact that the State’s evidence was certainly sufficient to convict him.128 Vol. 81 — No. 8 — 3/20/2010

¶65 In Gore v. State,129 which was decided in the year prior to Holmes, this Court likewise reversed the capital murder conviction of a defendant who was linked to the crime at issue with DNA evidence, because the trial court did not allow the defendant to present the third-party perpetrator evidence that he wanted to introduce.130 Within Gore, this Court recognized that “[t]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense,’”131 and also that “[f]ew constitutional rights are more fundamental than that of an accused to present witnesses in his own defense.”132 Ultimately, this Court found that the trial court violated Gore’s right to a fair trial when it did not allow him to present evidence that Ronald Williamson had previously been convicted of the murder for which Gore was being tried, i.e., the murder of Debra Sue Carter, as well as some of the evidence suggesting that Williamson was involved in this crime.133 ¶66 In the current appeal, the State quotes language from the Gore decision suggesting that a defendant’s third-party perpetrator evidence is inadmissible unless the defendant can provide evidence of an “overt act” by the third party toward the commission of the crime. Yet a careful reading of the entire Gore decision, including the separate opinions filed in that case, reveals that any true “overt act requirement,” in the context of third-party perpetrator evidence, died a (not very quiet) death in Gore. Although the main opinion addressed the history and development of this would-be requirement at some length and attempted to maintain some form of this requirement,134 this analysis was agreed to by only one other judge, who is not actually a member of this Court.135 And two of this Court’s sitting judges specifically stated that the time had come to “explicitly abandon the ‘requirement’ of proof of an overt act in admissibility determinations concerning third party perpetrator evidence.’”136 Perhaps more importantly, however, all fives judges who decided the Gore case voted to reverse the conviction of Glen Gore, based upon the exclusion of his proffered third-party perpetrator evidence,137 even though this evidence did not actually include any specific evidence of an “overt act” by Williamson toward the murder of Carter.138 ¶67 Nevertheless, all of the judges involved in the Gore decision apparently did agree on a somewhat less specific standard regarding third-party perpetrator evidence, namely, that a defendant can present such evidence “as long

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as there is some quantum of evidence, which is more than mere suspicion and innuendo, that connects the third party to the commission of the crime.”139 In Pavatt v. State,140 this Court’s next big decision involving a claim of wrongful exclusion of third-party perpetrator evidence, which came down nearly two years later and after Holmes, the “overt act requirement” is not even mentioned. ¶68 In Pavatt, this Court addressed a claim that the trial court had erred in failing to allow the defendant to present a particular letter at his trial, which was received by the defendant during his trial and which purported to be from a jail inmate named Zjaiton Wood. The handwritten letter contained Wood’s “confession” to the murder that Pavatt was accused of and detailed how Wood claimed to have “committed the crime.”141 Wood, however, was unwilling to testify at Pavatt’s trial, and Wood’s counsel strongly objected to Pavatt’s attempt to force Wood to testify, on Fifth Amendment grounds. This Court began its analysis by finding that defendant Pavatt had no right to compel Wood’s testimony.142 The question then became whether a defendant in Pavatt’s position could put into evidence, as third-party perpetrator evidence, the bare letter from Wood purporting to confess to the murder. ¶69 This Court noted in Pavatt that it remains “mindful . . . that a defendant has a right to present competent evidence in his own defense, and that rules of evidence may not arbitrarily impinge on that right.”143 This Court then found that “[w]hether Appellant was denied the right to present a defense ultimately turns on whether the evidence at his disposal was admissible.”144 The Pavatt opinion then invoked the evidentiary rule of § 2804(B)(3), which is one of four specific exceptions to the hearsay rule “if the declarant is unavailable as a witness.”145 Section 2804(B)(3) contains what is often described as the hearsay exception for “statements against interest” and also contains the following provision, which would appear to apply, in particular, to much of what might otherwise be described as “third-party perpetrator evidence,” particularly the “confessions” of third parties: “A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”146 ¶70 After recognizing this general evidentiary rule, we then tested the evidence proffered 742

by Pavatt in that case, namely, the hearsay letter purporting to confess to the murder at issue, against this evidentiary rule and concluded that the letter did not meet this test, i.e., the proffered letter was held not to be sufficiently corroborated.147 We emphasized that in making this determination, the trial court must consider “any relevant evidence — even evidence the State discounts — in determining whether the statement is trustworthy enough to be admissible.”148 ¶71 We do not question the holding of Pavatt, finding that the defendant’s right to a meaningful opportunity to present a complete defense was not violated by the trial court’s exclusion of the letter from the “compulsive jailhouse confessor” in that case.149 Nor do we question the validity, in general, of this wellestablished evidentiary rule, i.e., § 2804(B)(3). We do note, however, that if third-party perpetrator evidence proffered by the defendant is held to too high a standard under this rule, i.e., being denied admission unless “corroborating circumstances clearly indicate the trustworthiness of the statement” — a standard that the State does not have to meet regarding the admissibility of evidence suggesting the guilt of the accused, including the defendant’s own confession — application of this seemingly reasonable standard could, in fact, violate the defendant’s right to a meaningful opportunity to present his defense. ¶72 One of the underlying principles in Holmes and its predecessors is that the defendant’s evidence should not be treated with more suspicion than is the State’s evidence, and also that in our system, the trier of fact is the most appropriate entity for deciding disputes about which evidence is most reliable or “trustworthy.” We noted in Pavatt that “[o]utof-court statements, tending to exonerate the defendant and implicate the declarant, have traditionally been viewed with great suspicion,” citing two cases as support for this observation, one decided in 1915 and the other decided in 1888.150 Such an observation does not, however, fully comport with the laterdeveloped, but now well-established doctrine regarding the defendant’s right to a meaningful opportunity to present his defense. Such a rule, at least when too rigorously applied, would appear to be “disproportionate” to the (reliability) end that it is intended to promote, since it subjects the defendant’s evidence to a more demanding admissibility evaluation than it does the State’s.151

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¶73 In the current case, the trial court relied, explicitly and exclusively, upon Pavatt and this particular portion of § 2804(B)(3) as the basis for its ruling that Cleon Johnson would not be allowed to testify. The trial court, having just announced that it was referring Johnson for a possible federal perjury prosecution, inquired of the defense team whether it was still proffering his testimony. After defense counsel announced that Summers was indeed still proffering Johnson’s testimony, the trial court ruled: “Denied on two grounds. Number one, it is hearsay, which is inadmissible. Secondly, it is inherently unreliable. There is no clear corroborating circumstance brought to my attention which would indicate the truthfulness of this statement.” The trial court then cited Pavatt as “giv[ing] the trial courts instructions on this,” namely, “that a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”152 The trial court then concluded: “There is no — there are no circumstances that have been presented to me which would allow me to find that there is trustworthiness of the statement. Your offer is denied. The motion [in limine] of the State is sustained.” ¶74 At the outset, this Court must recognize that this analysis is much too cursory. The trial court was clearly unimpressed by the proffered witness and was probably greatly offended by Johnson’s blatant admission that he had “lied” during his 2004 testimony before the federal grand jury (“Yes, sir, I sure did.”).153 Nevertheless, a defendant’s constitutional right to “a meaningful opportunity to present a complete defense” does not depend on whether the trial judge, himself or herself, likes or believes the defendant’s witnesses. ¶75 We begin our analysis by recognizing that Cleon Johnson’s testimony (1) that he, himself, ordered the killing of “Bud and whoever else [is] in the house,” (2) that he gave this order to Demarco Campbell and Greg McKinney (and no one else), and (3) that Johnson’s motive for doing so was his personal belief that Bud Tennyson had killed his best friend, Little Wet, is certainly not “hearsay.”154 Nor has the State offered any valid reason for the exclusion of this direct, non-hearsay testimony. Unlike the jailhouse confessor in Pavatt, Johnson was willing to testify and to directly implicate himself in the crimes at issue, even though this testimony potentially subjected him to an addiVol. 81 — No. 8 — 3/20/2010

tional prosecution for two counts of firstdegree murder. This Court finds that the trial court clearly abused its discretion in refusing to allow Johnson to testify that he himself ordered the killing of the Vanns, to whom he gave this order, and his motive for doing so. ¶76 Whether Johnson should have been permitted to testify about what Demarco Campbell told him regarding Campbell’s involvement in the shootings and how they occurred is a closer call. This testimony would indeed be hearsay, i.e., an out-of-court statement of the declarant offered for the truth of the matter asserted, at least to the extent that the testimony was offered to exculpate Summers as being one of the shooters.155 And it is this testimony that must be tested against the rule of Holmes and its ancestors and progeny. ¶77 The State maintains that the testimony of Johnson about what Campbell said, most importantly, that it was Campbell (and not Summers) who accompanied Fellows and McKinney on the night they shot and killed the Vanns, was clearly hearsay evidence and that it was properly excluded under Pavatt and § 2804(B)(3). Specifically, the State maintains that the trial court correctly concluded that Summers failed to present evidence that “clearly indicated” the “trustworthiness” of Johnson’s testimony and that this testimony was thereby properly excluded. ¶78 Summers responds by pointing out some of the aspects of Johnson’s testimony that potentially made it “trustworthy.” Johnson’s testimony about what Campbell told him about the Vann shootings includes a number of specific details about the crime and how it happened, which are fundamentally consistent with the evidence presented at trial: that the shooters got bad information and Bud was not at home as expected; that the shooters were able to enter the home without forcing entry; that Ples Vann had a pork chop in his hand and that the home smelled like pork chops; that Ples Vann was shot in the leg and the head and at least once with a .380; and that Shelly Vann was shot with a .45 and in the back. While it is true that not all of the “facts” cited by Johnson were accurate and that Johnson could have learned some of the details of the Vann murders from a source other than Campbell, these factors affect the weight and ultimate believability of Johnson’s testimony, but not its admissibility.

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¶79 In addition, Johnson’s testimony about what Campbell told him includes information about an additional “fact” that was not previously known, but which is consistent with known facts and potentially answers some of the remaining questions in the case.156 Specifically, Campbell’s description of the involvement of Tanisha Pearson as a “decoy” at the Vann home was not previously alleged or known, but fits with known facts, i.e., both Bud and Quantee Tennyson insisted that their parents would not have just opened their door to “strange men” standing on the front porch, and Pearson had already admitted to knowing both Fellows and McKinney and to helping them on the night of February 23, 2004 (by loaning them her car). This evidence also potentially answered a number of unanswered questions in the case, namely, how the shooters were able to enter the Vann home without any sign of forced entry, and who was the source of the various fingerprints on the front door that could not be attributed to any member of the victims’ family or to any of the alleged shooters.157 Hence there was evidence that could have been found to “corroborate” the trustworthiness of Johnson’s testimony about what Campbell told him. And the fact that Johnson was willing to implicate himself in the murders and to admit that Campbell committed them after being instructed to do so by him, i.e., Johnson, is an additional factor suggesting the potential trustworthiness of Johnson’s testimony. ¶80 At the end of the day, however, this Court concludes that the trial court abused its discretion by denying Summers the right to present the testimony of Johnson — including Johnson’s testimony that it was Campbell and not Summers who accompanied Fellows and McKinney on the night of the Vann shootings — because in the context of this particular trial, it simply violated Summers’ right to a fair trial to do so.158 The State’s case against Summers was fundamentally dependent on the testimony of numerous witnesses who were not much more “trustworthy” than Johnson, including witnesses who had potentially more motive for lying than he did, e.g., Robert Fellows, Roleitha Summers, Bud Tennyson, and Quantee Tennyson. In this context, it violated Summers’ right to a fair trial and to the presentation of a meaningful defense to prevent him from fully presenting Johnson’s testimony. ¶81 In Holmes v. South Carolina, the Supreme Court warned: 744

[T]he true strength of the prosecution’s proof cannot be assessed without considering challenges to the reliability of the prosecution’s evidence. Just because the prosecution’s evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. And where the credibility of the prosecution’s witnesses or the reliability of its evidence is not conceded, the strength of the prosecution’s case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact . . . .159 The current case is certainly not one where the defendant has conceded the reliability of the State’s evidence or its witnesses. ¶82 Phillip Summers has vigorously and consistently contested the reliability of the State’s evidence and its witnesses. And there can be no real doubt that some of the State’s star witnesses, particularly Robert Fellows and Roleitha Summers, have an established track record of lying and of willfully violating the law whenever they perceive that it is in their best interest to do so. In addition, unlike in Holmes and Gore, the forensic evidence available in the current case does not even implicate Phillip Summers. Phillip Summers is excluded as a contributor to all of the fingerprint and DNA evidence that the State was able to muster, despite extensive efforts to find and identify such evidence in the Vann home and on the guns, casings, bullets, and ammunition potentially connected with these crimes. ¶83 In this setting, in a trial with so many gaps in the evidence and with no forensic evidence linking the defendant to either the crime scene or the murder weapons; in a trial with so many unsavory witnesses, who have admittedly lied and broken the law as a matter of course in the past, and who have obvious and admitted personal motivations to testify falsely in the current case; in a trial where the two other persons who actively facilitated and committed the crime, who have admitted involvement in the shootings of Ples and Shelly Vann, have been able to completely avoid any actual punishment for these murders simply by being willing to point the finger at their gang-banging friends and cohorts, . . . it is hard to understand why Phillip Summers was not

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allowed to present the testimony of Cleon Johnson.160 ¶84 Johnson was available and willing to testify, and even if his testimony could have been substantially impeached, so was the testimony of most of the witnesses who were directly involved with both the victims and the alleged perpetrators, since practically all of these persons were heavily involved in a gang (either the Neighborhoods or the Hoovers) and the violent criminal lifestyle of their gang. In this context, this Court concludes that the jury that had been impaneled to decide Summers’ guilt and determine his fate should have been allowed to hear the testimony of Cleon Christopher Johnson, in order to decide, consistent with Summers’ right to due process and to “a meaningful opportunity to present a complete defense,” whether Johnson’s testimony might possibly give that jury some “reasonable doubt” about Summers’ guilt. ¶85 This Court finds that Summers’ right to a fair trial and to the opportunity to present a complete defense was unconstitutionally violated by the trial court’s wholesale exclusion of the testimony of Johnson. Furthermore, given the highly contested nature of the evidence presented and the limitations of the State’s evidence — in particular, no forensic evidence linking Phillip Summers to either the crime scene or the murder weapons — this Court cannot conclude that this constitutional violation was harmless beyond a reasonable doubt. ¶86 Because Phillip Summers is entitled to a new trial and a new factual determination of his guilt, the remainder of his claims on appeal are rendered moot and therefore need not be addressed. This case is reversed and remanded for a new trial. Decision ¶87 The first-degree murder convictions of Phillip Anthony Summers are REVERSED, and this case is REMANDED FOR A NEW TRIAL. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE P. THOMAS THORNBRUGH DISTRICT JUDGE APPEARANCES AT TRIAL Vol. 81 — No. 8 — 3/20/2010

Robert Stubblefield, Mark Matheson, Attorneys at Law, 1924 East 6th St., Tulsa, Oklahoma 74104, Attorneys for Defendant. Tim Harris, District Attorney for Tulsa County, Steve Kunzweiler, Assistant District Attorney for Tulsa County, 406 Courthouse, 500 S. Denver Ave., Tulsa, Oklahoma 74103, Attorneys for the State APPEARANCES ON APPEAL James L. Hankins, Ogle Law Office, P.L.L.C, 100 Park Ave., Suite 500, Attorney for Appellant W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer L. Dickson, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City, Oklahoma 73105, Attorneys for Appellee OPINION BY: Chapel, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J., dissent; Lewis, J., concur in part/dissent in part 1. See 21 O.S.2001, § 701.12 (1), (2) and (7), respectively. 2. Summers filed his Petition in Error on September 12, 2008. On April 13, 2009, Summers filed his Brief. On this same date, Summers tendered for filing a “Motion of the Appellant to Supplement the Record on Appeal and for Evidentiary Hearing on his Claim of Ineffective Assistance of Counsel.” This motion is hereby ACCEPTED FOR FILING. Summers’ motion for an evidentiary hearing, however, is DENIED, for the reasons discussed infra. On August 10, 2009, the State filed its Brief. On September 15, 2009, Summers tendered a Reply Brief, which was accepted for filing on September 17, 2009. Oral argument before this Court was held on December 15, 2009. 3. The medical examiner testified that this shot alone would have caused the victim to collapse virtually immediately and to die within a few minutes. 4. The medical examiner testified that the direction of this bullet was right to left and somewhat upward, exiting the body approximately 4 inches above the entrance wound. 5. This bullet was identified at trial as a .380 or possibly a 9mm, which have the same diameter. The medical examiner testified that the direction of this bullet was right to left and upward and that it lodged approximately 9 inches above the spot where it first entered the right leg, which was consistent with the victim being in a reclined or lying down position. 6. Although this bullet was State’s Exhibit 59 at trial, the trial record does not contain any testimony actually identifying what kind of bullet it is; nor was it ever compared to the weapons eventually recovered in connection with the case. 7. This bullet was identified at trial as a .45 auto bullet. 8. The medical examiner testified that both of these injuries, especially the second, would have caused extensive bleeding and unconsciousness within a few minutes. 9. This wound would not have been a significant factor in the victim’s death. 10. Although this bullet was State’s Exhibit 60 at trial, the record does not contain any testimony actually identifying what kind of bullet it is; nor was it ever compared to the weapons eventually recovered in connection with the case. 11. Budd Tennyson testified that although Ples Vann was technically their stepfather, he had raised the three boys since Budd was 3 years old; and Quantee and Budd consistently referred to Ples Vann as “daddy” or “my father” during their testimony. Budd, who was 21 years old at the time, still lived in the Vann home; Quantee, who was 23, did not, though he came by daily. Budd testified that the oldest brother, Donald, died of a seizure shortly after their parents were killed. 12. Quantee testified that he had a felony conviction in 2000 for possession of crack cocaine, for which he was sentenced to 5 years of probation. At trial Quantee adamantly denied any affiliation or association with the Neighborhood Crips gang, although at one point he acknowledged “being around them.” Other witnesses described

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Quantee as an active member of that gang. Quantee also denied any knowledge that his brother Bud was a gang member. 13. There was conflicting testimony at trial regarding whether the Vanns would or would not regularly leave their front door open or unlocked. Norman testified that when he looked over at the Vann home, “I seen the front door still open like it was” when he had started watching t.v. Norman also testified that he and Ples would sometimes leave their front doors open, so that when someone would come up, they could see who it was. Budd testified that his parents would not open their door to someone that they didn’t know, yet he also testified that despite the violence in the neighborhood, “My mama and daddy weren’t really scared or nothing. . . . [T]hey weren’t gonna let nobody run them from their home.” Quantee testified that the doors in the Vann home were always closed and locked and that the front doors were both closed when he arrived to drop off Bud that night. 14. Bud testified in orange prison garb and acknowledged that he was serving a 5-year federal sentence somewhere in Texas, after having been convicted of being a felon in possession of a firearm in furtherance of drug trafficking. 15. Quantee also testified that he never considered calling for an ambulance or the police. 16. Norman likewise testified that Bud and Quantee came to his home looking for a gun, that he did not give them one, and that he advised them not to return to the home. Norman also testified that Bud kept saying, “I’m gonna get ‘em. I’m gonna get ‘em.” 17. Bud testified that he “was planning on using it” and “wanted to murder somebody,” even though he didn’t know who was responsible at the time. Tulsa police investigating the scene later that night recovered a .38 Smith & Wesson revolver under the Vanns’ bedroom mattress. 18. Bud testified that he left before the police and emergency crews arrived. 19. Even at trial Bud referred to members of the Hoover gang as “nobody really” and “wanna be gangsters.” Bud described numerous shootouts between the Hoovers and the Neighborhoods and testified that he personally had been shot at 10-12 times by Hoover gang members and that several times he had shot back. 20. Bud testified that the home of his parents had been shot at 9 or 10 times. 21. At trial Bud was questioned about whether he had any responsibility for the death of Charlie Woo Summers, the brother of defendant Phillip Summers. Bud denied any involvement in that death, but acknowledged hearing about “some rumor” that he was responsible. Bud later testified that “the Hoovers — every time a Hoover got killed, they blamed me for it.” 22. Ellis also testified about the perceived gang membership/association of numerous persons who testified at or were somehow connected with the case on trial. 23. Officer Ward was the observer that night. Officer Tim Smith was the helicopter pilot. 24. The FLIR (forward-looking infra-red) system, unlike the Night Sun, allows officers to track persons on the ground without necessarily alerting those persons that they are being observed. Ward testified that he could not operate the FLIR and the Night Sun systems at the same time. 25. The FLIR system automatically records what is observed, as well as what is said in the helicopter, and the FLIR digital recording from that night (State’s Exhibit 11) was played at trial. 26. All four men were known members of the Hoover gang. Numerous witnesses testified that Roy Summers was known as “Long John,” McKinney was known as “Act Bad” or “Act Cad,” Fellows was known as “Robo,” and Phillip Summers was known as “Phil Phil” or “Stay High.” 27. All four men denied ownership or connection to the car; so it was towed away. 28. Tulsa police were unable, however, to specifically link this evidence to any particular person or gun or to any of the other evidence in the case against Summers. 29. The gun had a live round in the chamber and seven live rounds in the magazine, and its serial number had been rubbed out. 30. In addition, the bullet found in the left thigh of Ples Vann was identified at trial as being “consistent” with this Bursa .380, though it could not be conclusively matched to it. 31. The home, which belonged to Linda Bell, was less than a mile away. 32. Huff acknowledged that he and Nance were both dressed in “plain clothes” that night, that they were not driving a marked police car, that they did not specifically identify themselves as police officers, and that citizens are not obligated to talk to them. 33. Huff testified that he chose not to chase Summers for safety reasons, since he believed Summers to be potentially armed at the time.

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34. The driver of the stopped car was an older white woman, who was not identified at trial. The passenger in the back seat was Greg McKinney. McKinney was in possession of several small baggies of crack cocaine at the time and was arrested on that basis. 35. Davis also positively identified Summers at trial. 36. Davis acknowledged at trial that although his car was equipped with a dashboard video recorder, which recorded the stop, and although he reviewed the video of the stop that night, “for some reason” that portion of the videotape was gone when he went to recover it later. 37. Tulsa Police Officer Keith Reid testified that he arrested Summers at Webster High School that night and that Summers was muddy, but he did not have any weapons or drugs on him. 38. Reid, who arrested Summers and was involved in the K-9 search that night, later picked up the gun from Jordan. He testified that they had searched the area where the gun was found. 39. In addition, the .45 bullet found in the back of Shelly Vann was identified at trial as being “consistent” with this recovered .45 Glock, though it could not be conclusively matched to it. 40. McKinney denied ever being told that he could have been charged as an accessory in the case. 41. This practice of trading drugs (or something else of value) for the use of a drug-user’s car, i.e., a “smoker’s car,” when gang members planned to engage in criminal activity and wanted to make detection of this activity more difficult, was described by numerous witnesses at trial. 42. On cross examination McKinney acknowledged that Fellows had his right arm in a cast at the time, but denied that it prevented Fellows from putting his arm through his hoodie or his hand into his hoodie pocket. McKinney also denied shooting Fellows in the arm. 43. According to the medical examiner, Ples Vann was 6 ft. 3 in. tall and weighed 266 lbs. 44. McKinney did testify, however, that Fellows and Summers were “smiling and laughing.” 45. McKinney testified that he didn’t know if Philip Summers was there or not. 46. McKinney’s complete preliminary hearing testimony was read into evidence at trial during Summers’ defense case. Just before the testimony was read, over strenuous defense objection, the jury was informed, without elaboration or explanation, that “Mr. McKinney is an unavailable witness as a result of death.” This announcement is the basis for Summers’ claim in Proposition II of his appeal. 47. The federal racketeering case was an expansive criminal case involving numerous members of the Hoover Crips gang. On October 12, 2006, Fellows agreed to plead guilty to one count of racketeering conspiracy in that case. Within his plea agreement Fellows specifically admitted being a member of the Hoover Crips, which operated by committing violent crimes and drug dealing, and that he personally was involved in a drive-by shooting on March 30, 2001. Fellows testified at trial that he was sentenced to 22 years on that conviction, but he acknowledged that depending on his testimony in the case against Summers, there was a good chance that his sentence could be reduced. Fellows further testified that his deal with the State was established in conjunction with his testimony about the Vann killings at a federal “Rule 11” hearing, which was held on November 9, 2006, and that his plea agreements in federal and state court were intended to resolve all his charges in one concurrent sentence. It should be noted that a federal resentencing “Minute Sheet,” which was provided with Summers’ motion to supplement the record in this appeal, indicates that on January 7, 2009, on the motion of the federal prosecutor, Fellows was granted a “4-level departure” regarding his federal sentence and that his total sentence was thereby reduced to 137 months. 48. Fellows testified about the street names of the various gang members and that they used these names “in case we do commit crimes and get seen doing something people wouldn’t know our real names to tell law enforcement.” Fellows explained that because the letter “B” is associated with the rival Blood gang, Crips will often replace that letter with a “C,” such that McKinney was also known as “Act Cad.” He also testified that because the letters “C-K” can be an abbreviation for “Crip Killer,” Crips will often replace these two letters with the letters “C-C” in their writings. 49. Fellows testified that Hoover members would wear navy blue (and sometimes blue and orange or blue and gray) and that Neighborhoods would wear “North Carolina blue.” He also testified about gang initiation rites, gang signs and hand signals, the meaning of various slang terms, etc. 50. According to his widow, Brandi Summers, who also testified, Charlie Woo Summers was actually killed on January 16, 2004. Fellows testified that he personally thought Bud was responsible for Charlie Woo’s murder, but he did not know for sure. Fellows also acknowledged, however, that there were rumors about other persons who

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might have been involved, including some Hoover Crips known as “T-Loc” and “Little Charlie” and a man named “Mr. Finch.” 51. Fellows explained that the Hoovers believed that Bud had been shooting at Hoover Crips and had killed a couple of people, including possibly Charlie Woo Summers. 52. Fellows also testified that he had known Phillip and Paul Summers since grade school, but he had only recently met McKinney. Fellows denied hearing any talk about plans to “put in work” or do any violence that day. 53. Fellows testified that the .45 and the .380 recovered by police appeared to be the same guns. 54. Fellows testified that during January of 2004, he was riding in the back of a car with Greg McKinney and that McKinney was playing around with his .380, when it accidentally went off and shot Fellows in the arm, shattering a bone in his right arm. Fellows testified that he is right-handed and that his cast went from his shoulder to his wrist and wrapped around his hand. 55. “Chocolate” was later identified at trial as Tanisha Pearson, who also testified in the case. 56. When asked why they switched to Chocolate’s car, Fellows testified, “Because Chocolate’s vehicle was a newer vehicle and it did not burn gas like mine did, and plus if I am going to do a drug deal, I would rather do it in somebody else’s car.” Yet Fellows had already testified that his Cadillac was actually registered to “some older guy in Muskogee.” Fellows acknowledged the term “smoker’s car” and how such cars are used by gang members to commit crimes. Nevertheless, Fellows steadfastly denied that there was any plan to engage in gang violence that night. 57. McKinney had testified that they parked on the street. This was one of a number of less significant differences in the stories of that night told by McKinney and then later by Fellows. 58. Fellows testified that McKinney was standing behind Summers on the front porch. 59. Fellows testified that the entire shooting episode lasted only about 30 to 45 seconds and that when it was over, he drove slowly away, so as not to attract attention. 60. Fellows testified that when Summers stated that he “had to shoot the bitch” because “she looked so much like Bud,” Fellows was thinking to himself, “that is real fucked up.” 61. Fellows also testified that while they were driving, Summers was criticizing McKinney for not going into the house and asking him “why he was acting like a bitch, why he froze up.” 62. According to Fellows, the Summers family and the Bell family were related, i.e., “cousins.” 63. Fellows explained that “nap-nigger” is a disrespectful term that Hoovers use to refer to Neighborhood Crips. 64. According to Fellows, Summers did not say anything to Jones about McKinnney’s role. 65. Fellows testified that he did not hear Summers say anything else about what had happened that night until after the preliminary hearing in the case, when they were both in jail at the David L. Moss Center, when Summers told him “to hold it down and we both go home.” Fellows interpreted this to mean that if he kept his mouth shut, they might both get to go home. Fellows testified that Summers also stated that “Act Cad got on the stand and lied.” 66. Fellows testified that all four men had their guns out and on their laps. Fellows denied any discussion about intending to engage in violence on behalf of the Hoovers that night, but he did admit that “if we ran into some problems it would have happened.” 67. In addition, Fellows testified about who was who in various scenes within the FLIR recording, including identifying when he and the Summers brothers were putting their drugs and guns under a tree, while McKinney was in a different area. Fellows testified that when he and Phillip Summers later went back to retrieve their guns and drugs, they were not able to find them. 68. Fellows testified, “[T]hey have nothing to do with what is going on in the street. Women and children ought to be respected at all costs.” 69. Pearson testified that this was the only time she asked Fellows to purchase drugs for her and the only time she loaned him a car, though she did loan her car to numerous other people “in that circle.” Pearson only remembered seeing Fellows and McKinney that night and denied giving Fellows any money. 70. Pearson testified that Roy Summers was the driver, Phillip Summers was in the front passenger seat, and McKinney and Fellows were in the back. 71. Mike Huff, the Tulsa Police homicide unit supervisor, testified that he received a call from ATF agent Peggy Tobin on February 25, 2004, with the information about the armed men in the black Ford Focus, and that he was the one who provided that information (via radio broadcast) to all on-duty Tulsa police officers that night. The audio of the FLIR helicopter recording includes a reference to the fact

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that the Tulsa police were specifically on the lookout for “the Summers brothers” that night and that they expected them to be armed. 72. There were 7 children in the Summers family: Charles, Michael, Roleitha, Roy, Paul, Teresa, and Phillip. Phillip was the baby. Among these children, two were violently killed (Charles and Teresa), and all were apparently Hoover gang members for at least some part of their lives. 73. In particular, Roleitha admitted that in March of 2004, her brother, Michael Summers, told her to beat up Pearson and bring her to him, because he believed Pearson was cooperating with law enforcement. Roleitha admitted that she and two other women found Pearson at a Tulsa hotel and assaulted her, and that they were attempting to take Pearson to Michael when she escaped. 74. Roleitha testified that she first told the Tulsa district attorney that Phillip had admitted to her that he shot Shelly Vann (“because she looked so much like Bud”) at a federal Rule 11 hearing, on August 24, 2005. She testified that she was told that if she would cooperate and “help out” law enforcement, they would go “easier” on her. 75. Roleitha testified that she had been denied bond in her case, because she had “ran the last time.” She also testified that if she had been convicted of racketeering, she believed she would have been sentenced to approximately 25 years. 76. Hence Roleitha was considered part of the “57th Street Hoovers” set within the larger gang. 77. Roleitha acknowledged that she was a gang member before these younger siblings were. She described her youngest brother, Phillip, who would have been about 7 years old at the time, as “my baby” and testified that she helped nurture and provide for him as he was growing up. 78. Roleitha admitted on cross examination that at that point in her life, she was regularly using both marijuana and ecstasy. 79. Roleitha noted that after the shooting of the Vanns, she attempted to get a .380 for herself, because she expected renewed violence and retaliation, since both parents and kids were considered “off limits” within the gang culture, since they had “nothing to do with” gang business. 80. Roleitha acknowledged on cross examination, however, that she had earlier testified, at her federal Rule 11 hearing, that this gun belonged to Fellows. 81. In particular, Roleitha testified that she had seen the .380 and the Glock .45 recovered in the case in the hands of Hoover gang members other than McKinney, Fellows, and Phillip Summers. 82. She denied, however, that anyone had threatened to take her child away if she did not testify. 83. At the time of Summers’ 2008 trial, the murder of Charlie Woo Summers, which was believed to be gang related, remained unsolved. 84. A copy of this hand-written letter, dated May 5, 2004, was entered into evidence at trial as State’s Exhibit 71, over vigorous defense objection. The State obtained a copy of this letter in May of 2004, when an employee at the Cimarron correctional facility opened the letter before mailing it for Summers. The jury, however, was not informed how the State became aware of the letter. 85. Brandi also explained the abbreviations “RIP” (rest in peace), “OG” (old gangster), “YG” (young gangster), as well as various specific Hoover Crip conventions, such as substituting the letters “CC” for “CK,” substituting the letter “C” for “B,” etc. 86. The hand-written letter reads, in part, as follows: What is the police talking bout out thurr, that’s gottum fuccin wit yall . . . I can’t see no news here no radio “R” get any kinda information about this shit they trying pend on me. So what all are they trying say exactly? Who else is they trying put on the case wit me? . . . . I wanna know everything that’s goin on out thurr & what the word is wit this new case I’m facin. Brandi what I need u ta do for me please is find out the exact time & dates of the murders. I need ta know what evidence they have so far & whatever else there is ta know. In a postscript at the end of the letter, Summers adds: “p.s. I wanna hear from u & know what’s goin on, they got me fucced up. I ain’t guilty of shit.” 87. Brandi also testified that she had never heard Phillip Summers make any statements in person about killing anybody. 88. The letter from Phillip Summers states: It’s one lil homie that I ain’t fa sure about that know a lot & that’s lil Act-Cad. I been havin 2nd thoughts about him a whole lot & he my lil nigga, but I swear, I hope he didn’t double cross me. I’m just hopin he aint doin what I think he is. I say that cuz it’s just somethin not right about his situation right now . . . . The letter later states: “The fuccin police is suddenly comin up wit all this new shit on me that only Act-Cad would have a real clue about, even though I ain’t did shit . . . .”

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89. Brandi testified that she was “still surprised” to hear this theory and that she had “absolutely not” previously ever heard Bud’s name in connection with her husband’s murder. 90. Yerton testified that such “unidentified latent prints” could be from persons who have never been fingerprinted or whose fingerprints have never been put into the AFIS system. 91. Yerton testified that he swabbed all the areas on the Glock that would have to be touched in order to hold and use the weapon. Yerton testified on cross examination that he did not swab any of the other evidentiary items for DNA evidence, however, because he was not asked to do so. 92. Some of the DNA swabbings analyzed were collected by another (non-testifying) agent. 93. Fuller testified that one of the DNA donors to the Glock magazine might have been female. 94. No DNA material was recovered from the cartridge, i.e., the live round. 95. Fellows had just finished meeting with a police detective. Smith further testified that Fellows told him that if he told Tulsa police what they wanted to know, “he would be putting his mother and his baby’s life in danger.” 96. Miller was incarcerated in federal prison at the time of Summers’ trial, serving sentences on a whole range of offenses related to a bank robbery. He estimated that he had about 20 felony convictions. In particular, Miller admitted that he had pled guilty and been convicted of second-degree murder in state court (after his original guilty plea to first-degree murder was reversed on appeal) and that he had been convicted of two counts of capital first-degree murder in state court in a separate case, which had been reversed by this Court and not yet retried at the time. 97. When asked if the name was Gregory McKinney, Miller testified that he couldn’t recall and didn’t know. Miller noted that his conversation with Fellows was never completed, however, because at that point some other guys walked over, and their discussion was cut off. 98. The cross examination of Miller got rather out of hand, as the district attorney got very upset and repeatedly accused Miller of testifying simply to get back at him personally, because he was still prosecuting Miller for two counts of first-degree murder and re-seeking the death penalty. Miller repeatedly denied having any grudge against the Tulsa district attorney and stated that he was testifying in the current case because “I want to be comfortable within myself.” In addition to impeaching Miller with his numerous convictions, the district attorney was allowed to impeach Miller about his knowledge of “forensics,” over vigorous defense objection, by reviewing some of the forensic evidence in the ongoing homicide case against him — referring specifically to Miller’s fingerprints in the car of Mary Bowles and to bullets removed from the bodies of Bowles and Gerald Thurmond, which were “matched” to a gun found in the toilet tank of Miller’s hotel room. At one point defense counsel objected “to Mr. Harris screaming at Mr. Miller” and asked the Court “to admonish Mr. Harris not to raise his voice,” but the trial court overruled the objection. 99. At the end of his testimony, Lewis acknowledged that he was aware that the bullet in Fellows’ arm had been removed at some point and that although it could not be conclusively matched to the .380 Bursa found at the scene, it was found to be a .380 slug. 100. Demarco Campbell is also referred to as “Demarko,” “Marko,” and “Marco” Campbell. According to the materials submitted with Summers’ motion to supplement the record, a man named Ray Campbell, who had a brother named Demarco Campbell, was found shot to death on March 8, 2004, shortly after the Vanns were killed, in what appeared to be a gang-related killing. 101. On April 13, 2009, Summers tendered to this Court a motion to supplement the record on appeal and a request for an evidentiary hearing, along with his brief in chief in this case. The materials within and attached to this motion relate to Summers’ claims in Proposition I and II, and this motion is today accepted for filing by this Court. 102. The State’s motion in limine and brief in support were filed on January 29, 2008, the day the State finished presenting its case in chief against Summers. The State argued that its investigation of the Vann murders “has yielded no evidence which supports the proposed testimony” and that the proposed testimony of Johnson (i.e., statements from Marco Campbell to Johnson admitting Campbell’s involvement in the killings) would be entirely hearsay. 103. The trial court specifically stated that it was granting an “evidentiary hearing” to allow Summers to present (and the State to test) the testimony of Cleon Johnson. And the court directed the parties to question Johnson on anything they thought was relevant. Consequently, as an evidentiary hearing has already been held on this evidence, and the actual testimony of Johnson is available to this Court, there is no need for another evidentiary hearing. Hence defendant

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Phillip Summers’ request for an evidentiary hearing on this claim is denied. The claim will be decided on its merits herein. 104. Johnson acknowledged that he also uses the name “Cleon Smith,” which is the name on his birth certificate and social security card, but that his mother enrolled him in school under the name “Cleon Johnson.” 105. Johnson testified that he “took over the Hoover Chapter in Tulsa” when “Mike Maconey (phonetic)” got locked up. Johnson testified that no one had promised him anything for his testimony and that he knew he could be charged with murder for admitting to ordering the hit. 106. When asked where Campbell was located at the time of the trial, Johnson testified that he was in federal prison. When asked about his relationship with him, Johnson described Campbell as “my little homey” and a “good friend.” 107. Johnson later testified that although he ordered Campbell and McKinney to carry out the hit, Fellows somehow got involved “in the mix of it.” 108. Although the transcript lists this name as “Little Wekki (phonetic)” and “Little Wek,” the materials attached to Summers’ supplemental filing suggest that Johnson actually said “Little Wet,” which was the known street name of Ronald Devon Woods, a Hoover Crip gang member who was found shot to death on November 22, 2003. (According to the 11/25/2003 Tulsa World article about Woods’ murder, proffered by Summers, police sources indicated at that time that “[a]t least seven men have been killed this year in an ongoing gang feud.”) 109. Johnson also described another motive that Campbell had for wanting Bud dead, namely, that Bud had “shot up his mama’s house.” 110. Johnson testified that McKinney and Fellows both told him that they were the ones who went inside. 111. Johnson testified on cross examination that a day or two after the murders (and before Campbell had been brought back to jail), he met with Sergeant Mike Huff. According to Johnson, he told Huff then that he knew who had killed the Vanns (since he ordered the hit), although he did not tell Huff that he ordered the hit. In particular, Johnson testified that he told Huff that it was Demarco Campbell and that Campbell had earlier told Johnson “he was going to go kill Ples, Shelly and Bud.” Johnson testified that he had another meeting with Huff later, after he had spoken with both Campbell and McKinney at the jail, and that he told Huff everything that these men had told him. 112. The prosecutor later vigorously cross-examined Johnson about how he could know what Campbell had told him was “true,” since Johnson himself was not there. And Johnson again testified that “Gregory McKinney and Robert Fellows also told me the stories and all the stories was exactly the same.” 113. Campbell referred to McKinney and Fellows as “prospects” or “potential gang members,” who still had to “prove themselves worthy.” 114. When asked what was “right,” Johnson responded, “What is right is, you know, to come forward telling the truth. I mean, I don’t see no reason to let an innocent man be convicted of something he had no involvement in.” 115. The federal grand jury case was entitled, “In the Matter of Mike D. Summers.” Before he was confronted with his earlier testimony, Johnson testified that during his grand jury testimony, the only person he identified as being involved with the Vann homicide was Campbell, “Just Marko.” Johnson admitted that he did not tell the grand jury about the involvement of either Fellows or McKinney and testified that he did not provide any names other than that of Campbell. 116. Johnson testified at the federal grand jury that his testimony there was based entirely upon what “Long John” told him, although Long John apparently did not claim he himself was there. 117. The trial court’s ruling and cited legal basis for this ruling will be discussed further infra. 118. 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed. 2d 503 (2006). 119. Id. at 324, 126 S.Ct. at 1732 (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 1246, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984))). 120. Id. at 326, 126 S.Ct. at 1732. 121. Id. at 326-27, 126 S.Ct. at 1732 (citations omitted). 122. Id. at 327, 126 S.Ct. at 1733. 123. Hence Holmes was convicted of first-degree murder, as well as first-degree burglary, first-degree criminal sexual conduct, and robbery. He was sentenced to death for the murder. Id. at 321-22, 126 S.Ct. at 1730. 124. Evidence was presented that DNA found on the underwear was a mixture of two individuals, and that 99.99% of the population, other than Holmes and the victim, were excluded as contributors to this mixture. Id. at 322, 126 S.Ct. at 1730. Other forensic evidence presented at trial included evidence that Holmes’ palm print was found in

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the victim’s home and evidence that a mixture of blood from both Holmes and the victim was found on Holmes’ tank top. Id. 125. In particular, Holmes wanted to put on evidence that several witnesses saw White in the area at the time and that White had admitted to several people that he committed the crimes. Id. at 323, 126 S.Ct. at 1730. 126. Id. at 324, 126 S.Ct. at 1731. 127 Id. at 330, 126 S.Ct. at 1734. 128. Id. at 331, 126 S.Ct. at 1735. The Supreme Court did not engage in any kind of “harmless error” analysis in Holmes. See id. 129. 2005 OK CR 14, 119 P.3d 1268. 130. Glenn Dale Gore was convicted of the first-degree murder of Debra Sue Carter, who was violently killed in 1982. The State had previously charged and convicted two other men of this same crime, Ronald Williamson and Dennis Fritz, based in part upon the testimony of Gore. After the conviction of Williamson was later set aside by the Tenth Circuit Court of Appeals, DNA testing revealed that sperm found in the vagina and rectum of the victim could not have come from either Fritz or Williamson, but rather was that of Gore. Id. at ¶¶ 1-11, 119 P.3d at 1270-72. 131. Id. at ¶ 21, 119 P.3d at 1275 (quoting Crane, 476 U.S. at 690, 106 S.Ct. at 2146). 132. Id. (citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). 133. Id. at ¶¶ 25-32, 119 P.3d at 1276-78. 134. See id. at ¶¶ 13-23, 119 P.3d at 1272-76; see also id. at ¶ 23, 119 P.3d at 1275-76 (“Accordingly, proof of an overt act in the commission of the crime is required, but it is as a threshold showing, and not as the sole determining factor.”). 135. The Gore decision was authored by Judge Gary Lumpkin; Oklahoma Supreme Court Justice Steven Taylor, sitting by designation, concurred. Judge Charles Johnson specially concurred, with an opinion specifically noting that “Oklahoma’s overt act rule . . . can be addressed another day.” 119 P.3d at 1278 (C. Johnson, J., specially concurring). 136. Id. at 1278 (Chapel, P.J., concurring in result). Judge Arlene Johnson joined the separate opinion of Judge Charles Chapel and also wrote her own separate opinion, noting that “[n]ine decades of jurisprudence . . . contains little if any analysis for the reason behind Oklahoma’s narrow [overt act] rule.” Id. at 1278 (A. Johnson, J., concurring in result). Judge A. Johnson’s separate opinion, which noted that she too “would abrogate the requirement that a defendant provide evidence of an overt act before alternate suspect evidence may be admitted,” was likewise joined by Judge Chapel. Id. at 1279. 137. 2005 OK CR 14, ¶¶ 31-32, 119 P.3d at 1277-78. 138. The lead opinion in Gore states: “While there may not be a single identifiable overt act toward the commission of the crime, the evidence comprising the case against Williamson was evidence of acts or circumstances that tend clearly to point to Williamson, rather than [Gore], as the killer.” Id. at ¶ 26, 119 P.3d at 1276 (emphasis added). Although the opinion states that “Williamson’s prior conviction for the victim’s murder meets the requirement of an overt act in the commission of the crime,” id. (emphasis added), a conviction is not an “act” at all. 139. See id. at ¶ 24, 119 P.3d at 1276 (emphasis added); see also 119 P.3d at 1278 (Chapel, J., concurring in result) (“Certainly, there should be ‘some quantum of evidence, which is more than mere suspicion and innuendo, that connects the third party to the commission of the crime.’ However, as this case shows, that is all that ought to be required.”). 140. 2007 OK CR 19, 159 P.3d 272. 141. Id. at ¶ 40,159 P.3d at 285-86. 142. Id. at ¶¶ 43-44, 159 P.3d at 286-87. 143. Id. at ¶ 42, 159 P.3d at 286 (citing Chambers v. Mississippi, 410 U.S. at 302, 93 S.Ct. at 1049). Although this Court’s Pavatt opinion discusses portions of both Holmes and Gore, it does not review or apply (or reject) the standards for determining the admissibility of third-party perpetrator evidence that were promulgated in those cases. 144. Id. at ¶ 45, 159 P.3d at 287. As will be discussed herein, this assertion, taken to its logical extreme, is somewhat contrary to the fundamental holding of Holmes and its predecessors, including Chambers v. Mississippi, which is that State evidentiary rules that impact a defendant’s right to present evidence — particularly evidence that someone else committed the crime — must themselves be examined to ensure that the application of these rules does not arbitrarily impinge on the defendant’s right to present evidence in his own defense. 145. See 12 O.S.Supp.2002, § 2804(B). This rule was not raised by either party in the case. Pavatt, 2007 OK CR 19, ¶ 45, 159 P.3d at 287. 146. See 12 O.S.Supp.2002, § 2804(B)(3). This provision continues as follows: “A statement or confession offered against the accused in a criminal case, made by a codefendant or other individual implicating both the codefendant or other individual and the accused, is not within this exception.” Id.

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147. Pavatt, 2007 OK CR 19, ¶¶ 46-48, 52-53, 159 P.3d at 287-88, 289. 148. Id. at ¶ 46, 159 P.3d at 287. 149. See id. at ¶ 47, 159 P.3d at 288 (the author of the letter had apparently “attempted to ‘confess’ to other local murders besides this one”). 150. See id. at ¶ 46 n.12, 159 P.3d at 287 n.12. 151. See Holmes, 547 U.S. 319, 326, 126 S.Ct. 1727, 1732 (“[T]he Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote . . . .”). 152. Although the transcript refers to “Pravett,” the trial court’s explicit citation of this case as “May 8, 2007, 2007 Oklahoma Criminal 19,” as well as the material invoked from this decision, leave no doubt that the trial court was indeed referring to Pavatt, 2007 OK CR 19. 153. It should be noted that although Johnson admitted that he “lied” in his federal grand jury testimony, this testimony occurred just 9 days after the Vann homicides, when Johnson might not yet have had contact with any of the actual shooters, and that Johnson described all of the information that he had at that time as something he was told by Roy Summers, i.e., “Long John,” who did not claim that he himself was actually involved in the shootings. 154. Johnson’s testimony that he witnessed Campbell and Ples Vann engaged in a “heated disagreement” is likewise not hearsay evidence, though under Gore, the admissibility of such motive evidence would still depend on the availability of other evidence that could connect Campbell to the actual commission of the murders. See Gore, 2005 OK CR 14, ¶ 24, 119 P.3d at 1276. 155. See 12 O.S.Supp.2002, § 2801(A)(3) (definition of “hearsay”). Summers attempts to argue, for the first time on appeal, that these statements of Johnson about what Campbell said happened are not actually “hearsay,” under the rule excluding statements among “coconspirators” from the definition of “hearsay.” Id. at § 2801(B)(2)(e) (“A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”). In order to even make this argument, Summers has to claim that Johnson’s statements about what Campbell said were being offered against Fellows, rather than in support of Summers’ affirmative defense, and that former co-defendant Fellows remained a “party” to Summers’ case, even though Fellows had already pled guilty and was not being tried with Summers. Although this argument is creative, it lacks any support in law (and none is offered) and trial “logic.” Fellows was not on trial, and Summers had no right to offer substantive evidence against him; nor was this evidence being offered for this purpose. 156. Cf. Pavatt, 2007 OK CR 19, ¶ 53, 159 P.3d at 289 (“A confession tends to be more trustworthy if it provides hitherto-unknown facts which are not only verifiable, but also consistent with known facts.”). 157. And Pearson testified that she did not have any felony convictions; hence her fingerprints would not be expected to be in the AFIS system. 158. In addition, this Court notes that Johnson repeatedly testified that Robert Fellows told him “the exact same story,” about what happened on the night Ples and Shelly Vann were shot, as the one Johnson was attributing to Demarco Campbell. Fellows had already testified as a State witness during Summers’ trial, and the “story” attributed to Fellows by Johnson was quite different than Fellows’ testimony at trial, particularly on the issue most crucial to Phillip Summers, i.e., the identity of the third male person who was with Fellows and Greg McKinney on the night of February 23, 2004, and who assisted them in the murders of the Vanns. Hence on remand the trial court should consider whether Johnson’s testimony about what Fellows told him happened that night (and possibly Greg McKinney as well) was admissible as impeachment evidence, as a prior inconsistent statement of a testifying witness. 159 547 U.S. at 330, 126 S.Ct. at 1734 (emphasis in original). 160 Greg McKinney avoided being even charged in the case, since he joined the State’s team so quickly; and the State’s admission that they cannot pursue him now, i.e., now that the State believes it mistakenly let off one of the actual shooters, since “you cannot indict a dead man,” cannot be much consolation to Phillip Summers.

LUMPKIN, J.: DISSENT ¶1 Because this opinion disregards case law which has been consistent since the early days of statehood, and seeks to give an expansive interpretation to a U.S. Supreme Court decision that violates the Rules of Evidence, I must respectfully dissent to the decision rendered.

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¶2 While I agree that Cleon Johnson should have been allowed to testify as to what he said and who he told, the exclusion of his testimony was harmless beyond a reasonable doubt as it did not have a substantial influence on the outcome. See Simpson v. State, 1994 OK CR 40, ¶ 37, 876 P.2d 690, 702. ¶3 Further, I cannot agree to the majority’s attempt to make the Oklahoma Evidence Code1 irrelevant to the trial of a criminal case. This Court has already interpreted and applied the U.S. Supreme Court decision in Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed.2d 503 (2006) in Pavatt v. State, 2007 OK CR 19, 159 P.3d 272, where we stated: Appellant refers us to Gore v. State, 2005 OK CR 14, 119 P.3d 1268, and Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), to support his claim that he was entitled, as a matter of due process, to present evidence of a possible third-party perpetrator. In Holmes, the Supreme Court found that a state evidentiary rule governing admissibility of thirdparty perpetrator evidence ran afoul of the Sixth and Fourteenth Amendment rights to a fair trial. The defendant in Holmes, charged with rape, burglary, robbery, and capital murder, proffered testimony suggesting that the forensic evidence against him had been contaminated and/or planted, and that another man, White, had admitted to the crime to several other people. White denied making any incriminating statements to others, and offered an alibi. The trial court excluded this evidence. The state appellate court affirmed, holding that third-party perpetrator evidence should be excluded any time the evidence against the defendant is “strong,” particularly when there is “strong forensic evidence” of the defendant’s guilt. The United States Supreme Court found the rule applied by the state appellate court in Holmes to be too rigid. The Court pointed to several of its past cases, striking down similar rules that “serve[d] no legitimate purpose” or were “so disproportionate to the ends that they [were] asserted to promote.” Yet the Court recognized the authority of legislatures, and courts, to impose reasonable evidentiary rules in criminal trials, and noted that such authority-even regarding the admission of third-party perpetrator evidence-was not directly at issue. 750

The only issue in Holmes was the South Carolina Supreme Court’s recent expan sion of its decades-old, judge-made rule, to make the admissibility of third-party perpetrator evidence entirely dependent upon the strength of the prosecution’s evidence, considered in isolation. The Supreme Court found such a rule unconstitutional, in effect because it irrationally presumed that any evidence presented by the state was necessarily more credible than any evidence proffered by the defense. 2007 OK CR 19, ¶¶ 49-50, 159 P.3d at 288-289 (internal citations and footnotes omitted). ¶4 The Supreme Court in Holmes was dealing with a judge made rule that had no historical legal basis. In this case, the trial judge appropriately applied the Oklahoma Evidence Code, and prior case law, to determine that the proffered hearsay statements were not admissible as they did not fall under any recognized exceptions to the hearsay rule. There was no independent evidence to corroborate the statements and Johnson has no independent knowledge of what happened after he put out his alleged hit on the Vanns. In other words, he does not know who was at the Vann’s house on the night of the murders. This opinion seeks to disregard the Rules of Evidence based on the sentence fragment “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense’” that was contained in Holmes, 547 U.S. at 324, 126 S.Ct. at 1731. ¶5 The Evidence Code, both federal and state, have been developed through the centuries and emanate from the English common law to ensure only competent evidence is presented in a court of law. Without regard to its validity or competency this opinion basically says that when it comes to what a defendant in a criminal case wants to present as part of his/ her defense it must be admitted even though it violates our Evidence Code. Other than what he testifies he said, Johnson cannot under these rules testify to what other people told him when those statements do not qualify as exceptions to the hearsay rule. See 12 O.S. 2001, § 2801 et seq. As Section 2802 sets out “[h]earsay is not admissible except as otherwise provided by an act of the Legislature.” The U.S. Supreme Court decision in Holmes did nothing to dilute the application of the Rules of Evidence. The current decision seeks to do exactly what the U.S. Supreme Court condemned in Holmes, i.e.

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create an “arbitrary” rule. Regardless of whether an arbitrary rule benefits a defendant rather than the state, it is still arbitrary and inconsistent with the concept of the Rule of Law. ¶6 As the Supreme Court said in Holmes: While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. Plainly referring to rules of this type, we have stated that the Constitution permits judges “to exclude evidence that is ‘repetitive…, only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.” 547 U.S. at 326-27, 126 S.Ct. at 1732-33 (internal citations omitted). ¶7 The Supreme Court went on to say: A specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. . . [“][Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial”. Such rules are widely accepted, and neither petitioner nor his amici challenge them here. 547 U.S. at 327, 126 S.Ct. at 1733 (internal citations omitted). ¶8 In a footnote listing jurisdictions which fall under this statement of acceptance of such rules the Supreme Court cited Gore v. State, 2005 OK CR 14, ¶¶13-24, 119 P.3d 1268, 12721276. Id. ¶9 The interesting thing about the cite to the particular pages of Gore is that those pages set out the lineage since the early days of statehood that Oklahoma has had those rules and consistently applied them. The opinion in the present case seeks to do what the precedent of this Court has not done, and that is nullify the requirement since statehood that “evidence Vol. 81 — No. 8 — 3/20/2010

must tend to connect such other person with the commission of the crime charged” and “[e]vidence, which can have no further effect than to cast a bare suspicion upon another is incompetent and inadmissible.” Gore, 2005 OK CR 14, ¶13, 119 P.3d at 1273. ¶10 One year after Gore, Judge Lewis authored Stouffer v. State, 2006 OK CR 46, 147 P.3d 245. Addressing third party perpetrator evidence, and specifically the overt act requirement, this Court rejected Stouffer’s claim of error in part because “[h]e had no evidence of an overt act by any particular person pointing to an alternative suspect”. Id., 2005 OK CR 46, ¶50, 147 P.3d at 262. ¶11 A year after Stouffer, Judge Charles Johnson authored Pavatt v. State, 2007 OK CR 19, 159 P.3d 272. In its discussion of third party perpetrator evidence, the overt act requirement simply is not mentioned. 2007 OK CR 19, ¶49, 159 P.3d at 288. Based on the votes in each of these cases, contrary to the statement in the current opinion, together with the long historical precedence of this Court on the issue, the overt act requirement is still a viable legal principle. Wishing something does not make it true. ¶12 Based on the principles set out in Gore, Stouffer, and Pavatt the trial court properly excluded Johnson’s statements regarding what Campbell told him. There is no evidence of an overt act, and the evidence was not corroborated or trustworthy. While Johnson’s testimony of what he himself had said or directed would not be barred by the Evidence Code as hearsay, the trial judge was confronted with an admitted perjurer. While I may have allowed that testimony, together with the collateral evidence regarding its untrustworthiness, I cannot say the trial court abused his discretion based on our case law and the Evidence Code. I would affirm the judgment and sentence. 1. 12 O.S. 2001, § 2101 et seq.

LEWIS, J.: CONCURRING IN PART, DISSENTING IN PART. ¶1 Cleon Johnson would have testified for the defense that he ordered the murders of Ples and Shelly Vann, and their son, Bud Tennyson, as retaliation for Tennyson’s involvement in the murder of a member of Johnson’s gang, the Hoover Crips. Johnson would have testified that he gave this alleged order to Demarco Campbell while the two were detained in the David Moss Criminal Justice Center. Johnson

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was a convicted felon and admitted perjurer with plenty of questionable motives for giving this testimony. His credibility was subject to proper proof at trial and could have been weighed by the jury in considering his trial testimony. I concur in the Court’s opinion that this much of Johnson’s proposed testimony was relevant to who killed Ples and Shelly Vann. Because this testimony met the broad test of relevance long established by the rules of evidence, exclusion of this testimony was error under section 2402 of the Oklahoma Evidence Code and the holding of Gore v. State, 2005 OK CR 14, ¶¶ 13-29 119 P.3d 1268, 127277. However, the record before the Court firmly convinces me that Johnson’s confession that he ordered these murders could have no substantial influence on the outcome in Appellant’s trial. Exclusion of the evidence was harmless and does not warrant reversal. ¶2 Aside from the confession that he ordered the murders, Cleon Johnson’s proposed testimony consisted entirely of extrajudicial statements attributed to others, offered to prove that Demarco Campbell, not the Appellant, committed the murders. These statements were hearsay. 12 O.S.Supp.2002, § 2801(A)(3) (hearsay is an out-of-court statement offered to prove the truth of the matter asserted). After receiving Johnson’s proposed testimony in camera, the trial court found that the evidence was “hearsay” and contained “no clear corroborating circumstance brought to my attention which would indicate the truthfulness of the statement.” The trial court’s conclusion here clearly referred to pertinent language in Title 12, section 2804(B)(3) of the Oklahoma Evidence Code, the statement against interest exception to the hearsay rule, which provides in part: A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. The question presented by this ruling is whether the trial court abused its discretion in excluding the evidence as hearsay. An abuse of judicial discretion is an “unreasonable, unconscionable and arbitrary action taken without proper consideration of the facts and law pertaining to the matter submitted.” Harvey v. State, 1969 OK CR 220, ¶ 9, 458 P.2d 336, 338. ¶3 The trial court’s exclusion of Cleon Johnson’s hearsay testimony did not result in the 752

kind of due process violation that confronted the Supreme Court in Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 203 (2006) and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The Constitution’s due process guarantee prohibits “the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote.” Holmes, 547 U.S. at 326, 126 S.Ct. at 1732. By contrast, our Gore jurisprudence embodies precisely the kind of reasonable limitations on third party perpetrator evidence that the Supreme Court recognized in Holmes (in a footnote, no less) as “widely accepted” and consistent with due process of law. 547 U.S. at 327, n., 126 S.Ct. at 1733, n. (citing Gore and other state cases). Oklahoma’s standard of admissibility for such evidence is reasonable and longstanding. The news of its death is exaggerated. ¶4 The firmly established and widely accepted rules of evidence form an equally important component of the due process of law. Within this procedural framework, the constitutional “right to present a meaningful defense” is a right to present admissible evidence important to one’s defense, nothing more or less. Pavatt v. State, 2007 OK CR 19, ¶ 45, 159 P.3d 272, 287 (defendant’s right to present evidence in his defense ultimately turns on whether evidence at his disposal is admissible). The proponent of evidence at trial bears the burden to lay a proper foundation for its admission. Cline v. State, 1989 OK CR 69, ¶ 8, 782 P.2d 399, 401; United States v. Porter, 881 F.2d 878, 882 (10th Cir. 1989). In addition to showing the unavailability of the hearsay declarant(s), which the majority seems to assume without comment,1 the proponent of a statement against interest, when offered to exculpate the accused under section 2804(B)(3), must also establish “corroborating circumstances” that “clearly indicate the trustworthiness of the statement.” ¶5 The majority incorrectly suggests that only slight corroboration of the alleged hearsay with some known facts of the case compels its admission as a matter of constitutional law. However, the language and purposes of section 2804(B)(3), and case law applying that rule, indicate that the proponent must show corroborating circumstances related to the exculpatory facts that the statement is offered to prove. Put another way, the proponent must establish corroborating circumstances clearly indicating that the exculpatory “matter assert-

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ed” in the hearsay statement is trustworthy. Pavatt, 2007 OK CR 19, ¶¶ 47-53, 159 P.3d at 287-89 (trial court considered circumstances suggesting exculpatory matters asserted in hearsay statement were recently fabricated, and properly excluded the statement); Primeaux v. State, 2004 OK CR 16, ¶¶ 31-54, 88 P.3d 893, 901-904 (where trial court determined “matter asserted” for its truth in alleged statement against interest was untrustworthy, statement offered to exculpate accused was properly excluded as hearsay); Porter, 881 F.2d at 883 (recognizing “the need for corroborating circumstances that clearly indicate the trustworthiness of [declarant’s] statement exculpating [defendant]”)(emphasis added); see also, Holmes, 547 U.S. at 323, 126 S.Ct. at 1730 (eyewitness testimony placing hearsay declarant near the scene of the crime corroborated hearsay asserting declarant’s incriminating statements about murder to four other witnesses); and Chambers, 410 U.S. at 300, 93 S.Ct. at 1048 (independent eyewitness testimony that hearsay declarant was seen with a gun immediately after shooting, and once owned same caliber weapon as one involved in murder, corroborated hearsay evidence of declarant’s confession to three other witnesses). ¶6 Cleon Johnson’s proposed testimony was excluded by the trial court’s discretionary application of this carefully balanced evidentiary rule. The trial judge received the testimony in camera, encouraged counsel to ask any questions of Johnson they thought relevant, and considered the testimony in light of all the circumstances. Unlike the testimony erroneously excluded in Chambers and Holmes, the record amply supports the trial court’s finding that the statements offered here are not properly corroborated or trustworthy. The majority opinion shows that Cleon Johnson himself is anything but trustworthy. He would undoubtedly perjure himself just as readily to “cheat the gallows of its due or consign innocence to a felon’s cell,” Coleman v. State, 6 Okl.Cr. 252, 28384, 118 P. 594, 607 (1911); and has seemingly attempted both in this very case. However, Johnson’s credibility really is not the issue. 2 Leo H. Whinery, Oklahoma Evidence: Commentary on the Law of Evidence § 31.17 (2d ed. 2000)(“it is the hearsay statement that must be corroborated and not the credibility of the witness who testifies to the statement”) (emphasis in original). ¶7 The critical consideration here is that the proponent of the hearsay offered no corroboVol. 81 — No. 8 — 3/20/2010

rating circumstances to indicate the trustworthiness of the exculpatory matters asserted therein, i.e., the assertions indicating that Demarco Campbell, rather than the Appellant, murdered the Vanns. Nothing established Campbell’s presence at the crime scene, or even in Tulsa, at the time of the murders; nothing established his opportunity to commit the crimes; nothing placed him in the company of the self-admitted participants, McKinney and Fellows; nothing established his access to either of the murder weapons — both recovered, at different times, along pathways so recently traveled by Appellant and his friends. The majority reproaches the trial court’s analysis as “much too cursory,” while avoiding any close factual comparisons of the statements tendered here with the corroborated statements offered by the defendants in Chambers and Holmes. The absence of factual corroboration starkly distinguishes Cleon Johnson’s proposed testimony from the kind of probative evidence excluded in those cases; and provides sufficient reason to affirm the trial court’s exclusion of the statements as hearsay. Pavatt, 2007 OK CR 19, ¶ 52, 159 P.3d at 289 (statements against interest offered to exculpate accused were inadmissible “because there simply was nothing offered to corroborate them”). ¶8 Section 2804(B)(3) of the Oklahoma Evidence Code is “nothing like” the arbitrary rules that worked injustice in Chambers and Holmes. Pavatt, 2007 OK CR 19, ¶ 19, 159 P.3d at 289. Indeed, the Supreme Court of Indiana has noted that Federal Rule of Evidence 804(B)(3) “closely mirrors” the approach of the Supreme Court in Chambers, allowing certain exculpatory hearsay where corroborating circumstances clearly indicate the trustworthiness of the statement. Thomas v. State, 580 N.E.2d 224, 226 (Ind. 1991). Federal Rule 804(B)(3) “serves to assure a defendant his due process right to present evidence in his favor while protecting the trial court’s ability to exclude evidence that is irrelevant or insufficiently trustworthy.” Thomas, 580 N.E.2d at 226. Oklahoma’s rule is substantially identical in purpose and effect. The district court did not abuse its discretion by excluding the proposed defense testimony as hearsay, and its ruling did not violate due process of law. I respectfully dissent. 1. The majority opinion recites Cleon Johnson’s statement that Demarco Campbell is somewhere in federal prison. Robert Fellows, another of Cleon Johnson’s alleged hearsay informants, testified at Appellant’s trial and was clearly available. Only Greg McKinney was clearly unavailable to testify as a result of his untimely death. 12 O.S.Supp.2002, § 2804(A)(4)(defining unavailability).

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Court of Civil Appeals Opinions 2010 OK CIV APP 7 FFE TRANSPORTATION SERVICES, INC., and KARON K. MEDLIN, Plaintiffs/ Appellees, v. PILOT TRAVEL CENTERS, L.L.C., Defendant/Appellant. Case No. 105,604. September 18, 2009 APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA HONORABLE GARY E. MILLER, TRIAL JUDGE REVERSED AND REMANDED FOR FURTHER PROCEEDINGS Richard E. Hornbeek, Matthew J. G. McDevitt, Thomas Ishmael, HORNBEEK, VITALI, & BRAUN P.L.L.C., Oklahoma City, Oklahoma, for Appellee, FFE Transportation Services, Inc. Joe Carson, BUXTON CARSON P.L.L.C., Oklahoma City, Oklahoma, for Appellee, Karon K. Medlin Brandon S. Nichols, LOONEY, NICHOLS & JOHNSON, P.L.L.C., Oklahoma City, Oklahoma, for Defendant/Appellant JERRY L. GOODMAN, JUDGE: ¶1 Appellant Pilot Travel Centers, L.L.C., (Pilot) appeals the trial court’s orders granting judgment and costs to Appellees FFE Transportation Services, Inc., (FFE) and Karon K. Medlin (Medlin). A jury rendered a verdict in favor of FFE and Medlin on Medlin’s action for damages arising from a slip and fall accident on Pilot’s premises. Pilot raises various trial court errors. Based on our review of this record, we reverse and remand for further proceedings.1 FACTS ¶2 Medlin was a truck driver employed by FFE. On May 16, 2003, she stopped to refuel her tractor-trailer at Pilot’s truck stop. She descended from her tractor, noticed the concrete was wet, began refueling, then slipped and fell on the concrete driveway. Getting up, she noticed her clothes smelled of diesel fuel. She filed an incident report with Pilot, but declined any immediate medical treatment.

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¶3 As the day continued, Medlin’s pain increased. She sought medical treatment and was unable to return to work until May 10, 2005. She sustained injuries to her elbow, ankle, hip, neck, and head, resulting in several surgeries. ¶4 FFE was subject to Texas law, which permits an employer to opt out of the workers’ compensation system as long as an alternative compensation plan is offered to its employees. FFE had declined to participate in the workers’ compensation plan, and paid Medlin’s medical expenses and lost wages totaling $80,088.85. FFE claimed it was entitled to recover that amount from Pilot in the event Pilot was found liable for Medlin’s injuries. ¶5 Medlin and FFE contend Pilot’s employees failed to inspect the driveway around the diesel pumps for a hidden danger which led to Medlin’s injuries. More specifically, they contend Pilot knew that water pumps, placed next to diesel pumps, would spill water which, when combined with diesel fuel, would create a slick surface, thus presenting a hidden danger that might not be recognized by Pilot’s invitee. ¶6 The matter was tried to a jury. At the conclusion of the case, the jury returned a verdict in favor of Medlin and FFE. The trial court’s journal entry of judgment, filed February 7, 2008, memorialized the jury’s verdict. The order entered judgment against Pilot in favor of Medlin for $200,000.00 and against Pilot in favor of FFE for $80,088.85, to which was added pre- and post-judgment interest. The issue of costs was reserved for a future hearing. Pilot appeals. ISSUE ¶7 Pilot’s brief-in-chief states a number of propositions of error, one of which is correct, requiring reversal, thus leaving no need to resolve the others. Improper Verdict Form ¶8 The trial court gave the jury three verdict forms: a pink form, to be used if the jury found in favor of Pilot; a white form, to be used if Medlin was found contributorily negligent; and a blue form, in the event the jury found in

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favor of FFE and Medlin. The blue form is set out below: We, the jury, [] find the issues in favor of the Plaintiffs, FFE Transportation Service, Inc. and Karon K. Medlin, and fix the dollar amount of their damages in the following sums: Karon K. Medlin $________________ FFE Transportation $80,088.85

Services,

Inc.

(a stipulated amount) This form was used by the jury, signed by the foreman, and returned with its handwritten verdict of $200,00.00 in favor of Medlin and its verdict in the stipulated amount of $80,088.85 in favor of FFE. ¶9 Pilot objected to this form: [T]he blue and white verdict form with regard to the damages by FFE may result in what is a directed verdict for FFE.2 Pilot’s objection was that a jury might find in favor of Medlin, award damages to her on her negligence claim, but not award damages to FFE on its equitable subrogation claim.3 Conversely, if the jury decided to award an amount to Medlin (and to FFE) less than $80,088.85, under the form in question it could not do so.4 The Blue verdict form does not permit damages to be awarded to Medlin without awarding damages to FFE, nor does it permit a jury to award damages of less than $80,088.85 to FFE. The jury’s decisions were thus erroneously limited. ¶10 Moreover, it is not clear from this form whether FFE’s stipulated damages are to be deducted from Medlin’s award, or whether Medlin’s award was over and above that given to FFE. FFE’s derivative subrogation claim would normally be deducted from any damages awarded to Medlin; however, the verdict is not clear whether this was the intent of the jury.5 ¶11 FFE concedes in its brief that “the jury could have theoretically entered a verdict for FFE and against Medlin if the jury found Pilot responsible for Medlin’s injury but also finding that Medlin had not proven damages above what had already been paid by FFE.” FFE contends this is not error, however, because “If anyone was prejudiced by the inclusion of both Plaintiffs on a single Blue Verdict Form it was Vol. 81 — No. 8 — 3/20/2010

FFE, not Pilot.” Medlin argues that because Pilot did not provide alternative forms to use, it waived this error. ¶12 We disagree. We hold the trial court erred in its verdict forms and that the jury’s verdict was unquestionably affected by the erroneous verdict forms. ¶13 We review given or refused jury instructions and verdict forms to determine whether there is a probability the jurors were misled and thereby reached a different conclusion than they would have reached but for the questioned instruction or verdict form, or whether there was excluded from consideration a proper issue of the case. Ankney v. Hall, 1988 OK 101, ¶ 9, 764 P.2d 153, 155; Woodall v. Chandler Material Co., 1986 OK 4, ¶ 13, 716 P.2d 652, 654. ¶14 Finally, it is likewise important that the trial court should not have given Jury Instruction No. 2, which states “the medical expenses incurred by Plaintiff, incurred by FFE Transportation Services, Inc., were reasonable and necessary ... ,” together with Jury Instruction No. 19, Element J, which permits the jury to award Medlin the “reasonable expenses of the necessary medical care, treatment, and services, until 5-10-2005.” Both instructions refer to the same expenses. Medlin is entitled to recover those expenses only once. However, Medlin cannot recover those damages if they are awarded to FFE, nor can FFE be awarded those damages if Medlin receives them. The trial court’s future instructions should be drafted to prevent a double recovery of those expenses. ¶15 Because FFE has paid Medlin’s medical expenses and lost wages (which are the subject of FFE’s subrogation claim), if FFE is an active, named party participating at trial, Medlin cannot request and seek to recover damages for those medical expenses and lost wages; only FFE can do so. However, if FFE is not an active, named party participating at trial, the trial court must ask the jury, if it finds in Medlin’s favor, to set out the amounts, if any, attributable to medical expenses and lost wages so that the court and the parties can ascertain what compensation FFE is entitled to for its subrogated interest. CONCLUSION ¶16 The trial court’s February 7, 2008, order is reversed and the matter remanded to the trial court for further proceedings.

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¶17 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. WISEMAN, V.C.J., and BARNES, P.J., concur. 1. The record alternately spells FFE’s name as “FEE” and Medlin’s first name as “Karen.” We use the spelling provided by the parties in their petition. 2. The White verdict form also contained a reference to FFE’s stipulated damages. 3. FFE’s position is that it, or Medlin, were most likely prejudiced, not Pilot, in that the jury could have found in favor of FFE but not Medlin. 4. For example, the jury could have elected to award Medlin only her lost wages, or only her medical bills, either of which would be less than the $80,088.85 of FFE’s subrogation claim. 5. On remand, any jury instruction should be crafted in light of the trial court’s decision to permit FFE’s active participation at trial or allow its subrogation interest be known. If the jury has knowledge of the subrogated interest, it should be instructed that the interest will be satisfied from the damages awarded to Medlin. On the other hand, should the jury choose to award FFE an amount to compensate for its subrogated interest, the jury should not be permitted to award those same damages to Medlin.

2010 OK CIV APP 8 JASMINE PORTER, Plaintiff/Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant/ Appellee. Case No. 106,673. October 2, 2009 APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY, OKLAHOMA HONORABLE EDWARD C. CUNNINGHAM, JUDGE AFFIRMED Charles Gregory Smart, Tye H. Smith, CARR & CARR, Oklahoma City, Oklahoma, for Plaintiff/Appellant, David D. Wilson, WILSON, CAIN & ACQUAVIVA, Tulsa, Oklahoma, for Defendant/Appellee. BAY MITCHELL, CHIEF JUDGE: ¶1 In this action for uninsured/underinsured motor vehicle insurance benefits, Plaintiff/ Appellant Jasmine Porter (Plaintiff) appeals the trial court’s award of summary judgment to Defendant/Appellee State Farm Mutual Automobile Insurance Company (State Farm). Because State Farm was the automobile insurance carrier for both Plaintiff and the tortfeasor, Plaintiff insists she is entitled to uninsured/underinsured motorist (UM) benefits despite having settled with the tortfeasor for an amount less than the liability limits of tortfeasor’s policy. Plaintiff further argues the settlement agreement did not conclusively establish the full value of her claim, which she maintains is for the jury to decide. Because 756

Plaintiff settled with the tortfeasor for less than the liability-policy limits and discharged the tortfeasor from further liability when she executed the settlement agreement, she cannot prove the conditions precedent to recovery of UM benefits under 36 O.S. Supp. 2004 §3636(B). We affirm the order of the trial court. ¶2 Plaintiff was injured in an automobile accident November 8, 2006 in Piedmont, Oklahoma, while riding as a passenger in a car driven by her friend, Christina Patty (Driver). That Driver’s negligence caused Plaintiff’s injuries is undisputed. Following the accident, Plaintiff sought both liability benefits from State Farm under Driver’s policy and UM benefits from State Farm under her own policy. The liability limit of Driver’s policy was $100,000. Through State Farm, Driver offered to settle Plaintiff’s claim for $85,000. State Farm advised Plaintiff by letter dated August 10, 2007, that accepting the proposed settlement under Driver’s policy would foreclose Plaintiff’s right to recover UM benefits under her own policy. ¶3 Plaintiff decided to accept Driver’s settlement offer. She admits that on August 24, 2007, when she was eighteen years of age, she signed, in the presence of her attorney, a release of liability (Release) for the sole consideration of $85,000. Pursuant to the Release, Plaintiff forever discharged Driver and Driver’s parents “from any an all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever and particularly on account of all injuries, known and unknown, both to person and property, whichever resulted or may in the future develop from” the automobile accident. Plaintiff admits she was aware the limit of the personal injury liability insurance applicable to her claim against Driver was $100,000 and that she was accepting only $85,000 of that limit in exchange for releasing and forever discharging Driver and her parents from any liability arising out of the accident. ¶4 Despite this, Plaintiff continued to pursue UM benefits under her own State Farm automobile insurance policy. After State Farm denied her UM claim, Plaintiff filed the present action January 15, 2008, alleging she was entitled to recover UM benefits for the bodily injuries she sustained in the automobile accident. By order dated October 24, 2008, the trial court granted State Farm’s motion for summary judgment. Plaintiff then filed the present appeal.1

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¶5 We review de novo the trial court’s order granting summary judgment to State Farm. See Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963. A de novo review requires this Court to examine “the entire summary judgment record independently and without deference to a lower court” to determine whether the trial court erred in its application of the law. Id. Like the trial court, we review the pleadings and evidentiary materials to determine if a genuine issue of material fact is in dispute. See Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. In so doing, we consider the facts and all reasonable inferences arising therefrom in the light most favorable to the non-movant. Id. We will affirm summary judgment only if we determine there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Lowery, ¶11, 160 P.3d at 963-64. We will reverse summary judgment if we conclude reasonable minds might reach different conclusions from the undisputed material facts. Id. ¶6 Title 36 O.S. Supp. 2004 §3636, which governs underinsured motor vehicle coverage, provides in part: A. No policy insuring against loss resulting from liability imposed by law for bodily injury . . . suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be issued, delivered, renewed, or extended in this state with respect to a motor vehicle registered… in this state unless the policy includes the coverage described in subsection B of this section. B. The policy referred to in subsection A of this section shall provide coverage therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . because of bodily injury . . . resulting therefrom. . . . C. . . . . For the purposes of this coverage the term “uninsured motor vehicle” shall also include an insured motor vehicle, the liability limits of which are less than the amount of the claim of the person or persons making such claim . . . . (Emphasis added). In other words, by law, UM benefits are available to an injured person who is entitled to an amount of damages greater Vol. 81 — No. 8 — 3/20/2010

than the liability limit of the tortfeasor’s automobile insurance policy. ¶7 In Boyer v. Oklahoma Farm Bureau Mut. Ins. Co., 1995 OK CIV APP 102, 902 P.2d 83, it is undisputed that the liability limits of tortfeasor’s automobile insurance policy greatly exceeded the value of plaintiffs’ damages. After allowing the statute of limitations to expire before filing a lawsuit against tortfeasor, plaintiffs made a demand for UM benefits under their own automobile insurance policy. Their insurance carrier denied the claim. Finding for the insurance company, another division of this Court held: before an insured can proceed in an action to recover UM/UIM benefits under the contract, he must prove the existence of two simultaneous conditions precedent: 1) that he has a legal right to recover against the tortfeasor, and 2) that his claim exceeds the available liability coverage of the tortfeasor. These conditions precedent must both be present at the same time in order to obtain UM/UIM coverage. Id., ¶8, 1995 OK CIV APP at 86. When plaintiffs submitted their UM/UIM claims to the insurer, their legal right to recover against tortfeasor had expired by operation of the applicable statute of limitations. Thus, plaintiffs could not meet the first condition precedent. Moreover, at no time could they have met the second condition precedent by proving tortfeasor was underinsured, because the value of their claims did not exceed the limits of tortfeasor’s liability coverage. ¶8 In the present case, Plaintiff cannot meet the first condition precedent because, by executing the release and discharge of liability in exchange for $85,000, she was no longer “legally entitled to recover damages from owners or operators of uninsured motor vehicles . . . because of bodily injury” within the meaning of 36 O.S. Supp. 2004 §3636(B). Without citing legal authority, Plaintiff insists she meets the first condition precedent because the Release did not destroy State Farm’s subrogation rights against Driver. In the alternative, and again without citation to authority, Plaintiff contends State Farm, as the automobile insurance carrier for both Plaintiff and Driver, cannot and would not pursue a subrogation claim against Driver, its own insured. Plaintiff further claims the Release was a “compromise settlement,” not an admission her claim was worth less than

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$100,000, and insists it did not conclusively establish the value of her claim. Plaintiff’s arguments are insufficient either to overcome or undo the legal effect of the Release. Upon signing that document, Plaintiff was no longer “legally entitled to recover damages from [Driver] . . . because of bodily injury.” ¶9 Nor can Plaintiff meet the second condition precedent. The act of accepting less than the liability-policy limits and releasing Driver from further liability establishes that the claim does not exceed the available liability coverage. In other words, Plaintiff cannot prove Driver was underinsured. ¶10 Plaintiff is not entitled to UM benefits from State Farm as a matter of law. We affirm the trial court’s order granting summary judgment to State Farm. ¶11 AFFIRMED. HANSEN, P.J., and JOPLIN, J., concur. 1. The parties submit this appeal 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.

2010 OK CIV APP 18 WILLCO ENTERPRISES, LLC, Plaintiff/ Appellant, v. CONCHITA L. WOODRUFF and VICTORE INSURANCE COMPANY, Defendant/Appellee, CONCHITA L. WOODRUFF, Counter-Claimant/Third-Party Plaintiff/Plaintiff/Appellee, v. WILLCO ENTERPRISES, LLC and DONNY WILLIAMSON, Counter-Defendants/ThirdParty Defendants/Appellants. Case No. 106,237. January 22, 2010 APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA HONORABLE JEFFERSON D. SELLERS, JUDGE REVERSED David H. Herrold, Monica L. Maple, Andrew T. Harrison, Emily M. Jones, HERROLD HERROLD & CO., LAWYERS, P.C., Tulsa, Oklahoma, for Counter-Claimant/Third-Party Plaintiff/Appellee, Brian L. Mitchell, Chad M. Neuens, M. Scott Hall, Amy E. Hampton, GLASS WILKIN, P.C., Tulsa, Oklahoma, for Counter-Defendants/ Third-Party Defendants/Appellants. BAY MITCHELL, CHIEF JUDGE: 758

¶1 In a dispute arising out of a residential construction contract, Plaintiff/Counter-Defendant/Appellant Willco Enterprises, L.L.C. (Willco) and Third-Party Defendant/ Appellant Donny Williamson (Williamson), appeal the trial court’s order denying their motion to compel arbitration. Willco and Williamson (Appellants) argue the Uniform Arbitration Act, 12 O.S. Supp. 2006 §§1851-1881 (the New Act), supplants the six-factor test set forth in Northland Ins. Co. v. Kellogg, 1995 OK CIV APP 84, 897 P.2d 1161, for determining whether a party has waived its right to compel arbitration under 15 O.S. 1991 §§801-818 (the Old Act). Appellants thus insist it was error for the trial court to apply the Northland analysis in ruling on their motion to compel. In the alternative, Appellants argue if Northland does survive under the New Act, Defendant/CounterClaimant/Third-Party Plaintiff/Appellee Conchita L. Woodruff (Woodruff) failed to meet her burden of proof. Even assuming, as did the trial court, five of the six Northland factors survive under the New Act, we find Woodruff’s evidence insufficient to show Appellants waived their right to compel arbitration in this case. We REVERSE the decision of the trial court. Facts and Procedural History ¶2 Williamson is the owner and managing member of Willco, a homebuilding company based in Tulsa, Oklahoma. In 2006, Woodruff purchased from Willco certain real property in Tulsa and retained Willco to construct a residence on the site. Toward that end, the parties entered a Real Estate Purchase Agreement (Agreement) May 12, 2006. The Agreement includes both a clause mandating arbitration of all disputes between the parties, which the parties were required to initial at execution, and an anti-waiver provision.1 The arbitration clause expressly provides nothing contained therein “shall be deemed to limit or restrict Builder’s right to file a materialmen’s or mechanics’ lien against the Real Property or prosecute foreclosure proceedings based thereupon,” and the waiver provision declares “[f]ailure by any Party to enforce or exercise rights under this Agreement . . . shall not affect the right of any Party to exercise or enforce any such rights or require such performance at any time thereafter.” ¶3 In building Woodruff’s home, Appellants claim they furnished material, labor, and equipment through January 2008, by which point

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Woodruff, who had taken up residence in the home, allegedly ceased making required payments under the Agreement. In response, Willco filed a verified lien statement with the Tulsa County Clerk January 22, 2008, in which it declared Woodruff had an outstanding debt of $90,617.38 plus interest for labor, material, and equipment. Willco amended its materialmen’s and mechanics’ lien February 26, 2006, to increase the amount of Woodruff’s alleged indebtedness to $106,708.25 plus interest. Prosecuting foreclosure actions being expressly permitted by the Agreement, Willco initiated the present lawsuit March 5, 2008 by filing with the trial court a petition asserting breach of contract and seeking to foreclose the amended lien or, in the alternative, to recover in quantum meruit.2 ¶4 Woodruff filed an answer March 27, 2008, in which she asserted fourteen counterclaims against Willco and advanced two third-party claims against Williamson in his individual capacity, thus bringing him into the lawsuit as a third-party defendant. On the same day as her answer, prior to conducting any discovery in the case, Woodruff separately filed both a motion for summary judgment and an offer to allow judgment. ¶5 Willco replied to Woodruff’s counterclaims and Williamson answered her thirdparty petition April 7, 2008. In neither of these responsive pleadings did Appellants assert their contractual right to arbitrate the counterand third-party claims as an affirmative defense. ¶6 On April 11, 2008, the president of 1st Bank of Oklahoma moved to quash Woodruff’s subpoena duces tecum. Three days later, Appellants together filed a Rule 13(D) motion regarding Woodruff’s motion for summary judgment,3 and followed that with a combined motion to quash Woodruff’s subpoena and/or for protective order. ¶7 On April 24, 2008, Woodruff filed separate responses in opposition to both motions to quash. The following week, she objected to Appellants’ Rule 13(D) motion. On May 6, 2008, Woodruff subpoenaed for deposition both Williamson and an individual named Chris Burdan. ¶8 On or about May 13, 2008, Appellants served Woodruff with one set of discovery requests to which Woodruff never responded; she filed a motion for protective order instead. Appellants filed an unopposed motion for Vol. 81 — No. 8 — 3/20/2010

leave to dismiss and substitute parties May 30, 2008.4 Appellants’ counsel filed a motion to withdraw June 9, 2008, which the trial court granted two days later. Appellants’ current counsel filed their entries of appearance the same day. ¶9 According to the parties’ briefs on appeal and the trial court’s docket sheet, the aforementioned motions, requests, and pleadings comprise all of the activity that took place during the three-and-a-half months after Willco’s March 5, 2008 petition but prior to Appellants’ June 20, 2008 motion to compel arbitration.5 ¶10 The trial court denied Appellants’ request to compel arbitration of Woodruff’s counterclaims and third-party claims, declaring in its August 20, 2008, order: 1. The Court FINDS Woodruff is bound by the contractual provision to arbitrate this dispute. However, the Court FINDS Willco has waived its right to arbitrate pursuant to the analysis articulated in Northland Ins. Co. v. Kellogg, 1995 OK CIV APP 84, which the Court finds has not been displaced by Oklahoma’s Uniform Arbitration Act of 2005, 12 O.S. Supp. 2005 §§ 1851 et seq. (the “Arbitration Act”). 2. The Court FURTHER FINDS, in applying the 6-factor test of Northland herein (subparts (a)-(f) herein), that: (a, b) Willco filed this action without providing notice of arbitration or seeking a stay of the proceedings and affirmatively sought relief from the Court including conducting discovery, inconsistent with the right to arbitrate, (c) Willco’s delay in seeking to compel arbitration was not a long delay, but the delay was indicative of actions inconsistent with the right to arbitrate, (d) there has been substantial work performed in the action before the District Court, (e) the fifth factor of the Northland test (engagement in discovery proceedings unavailable in arbitration) is inapplicable herein, and (f) no showing has been made that there has been a substantial prejudice visited upon Woodruff if arbitration were compelled — whatever prejudice there might be to Woodruff is slight since work that has been performed would be performed in arbitration. The trial court further found “Woodruff’s thirdparty claims against Williamson are subject to

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the arbitration provision of the parties’ Residential Construction Agreement at issue herein, and should this decision be reversed by final order of an appellate court and arbitration later compelled, any such claims against Williamson shall be compelled to arbitration as well.”6 The trial court stayed the action pending appeal. ¶11 Pursuant to 12 O.S. Supp. 2006 §1879(A)(1), Willco and Williamson appeal the trial court’s order denying their motion to compel arbitration of Woodruff’s counterclaims and third-party claims. Appellants argue the Northland analysis does not survive under the New Act. In the alternative, Appellants insist it was error for the trial court to hold Woodruff’s evidence sufficient under Northland to prove Appellants had waived their contractual right to compel arbitration of Woodruff’s counterclaims and third-party claims. Standard of Review ¶12 An order denying a motion to compel arbitration is an interlocutory order appealable by right, which we review de novo. See 12 O.S. Supp. 2006 §1879(A)(1); see also Thompson v. Bar-S Foods Co., 2007 OK 75, ¶9, 175 P.3d 567, 572. “The determination of whether a party waived its right to compel arbitration is a mixed question of law and fact.” Gish v. ECI Servs. of Okla., Inc., 2007 OK CIV APP 40, ¶25, 162 P.3d 223, 230; see also Booker v. Sumner, 2001 OK CIV APP 22, ¶14, 19 P.3d 904, 906. “The review of whether the trial court applied the correct legal standards is a de novo review for correctness . . . while the review of the trial court’s determination of the existence of facts supporting waiver is deferential in nature.” Northland Ins. Co. v. Kellogg, 1995 OK CIV APP 84, ¶5, 897 P.2d 1161, 1162 (internal citations omitted). Analysis ¶13 Oklahoma law reflects this State’s strong public policy in favor of arbitration. See 12 O.S. Supp. 2006 §1857(A); see also Towe, Hester & Erwin, Inc. v. Kansas City Fire & Marine Ins. Co., 1997 OK CIV APP 58, ¶24, 947 P.2d 594, 599. Section 1857(A) of the New Act declares arbitration agreements “valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” This provision reveals “a clear legislative intent that any disputes arising from the interpretation or application” of such agreements “shall have an immediate and speedy resolution by required arbitration.” Voss v. City 760

of Oklahoma City, 1980 OK 148, ¶8, 618 P.2d 925, 928; see Bruner v. Timberland Manor Ltd. P’ship, 2006 OK 90, ¶23, 155 P.3d 16, 25 (recognizing §1857(A) “is a clear expression of Oklahoma’s policy favoring arbitration agreements.”). ¶14 “[C]ourts generally look with favor upon arbitration provisions as a shortcut to substantial justice with a minimum of court interference.” Long v. DeGeer, 1987 OK 104, ¶5, 753 P.2d 1327, 1328; see also Rollings v. Thermodyne Indust., Inc., 1996 OK 6, ¶13, 910 P.2d 1030, 1033 (stating courts favor arbitration because it allows for speedy and less-costly resolution of conflicts). Indeed, the Supreme Court has held courts should compel arbitration “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Bar-S Foods, ¶9, 175 P.3d at 572 (citing Fleming Cos., Inc. v. Tru Discount Foods, 1999 OK CIV APP 18, ¶16, 977 P.2d 367, 371 (itself citing United Steel Workers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1353 (1960))). “The interpretation of an arbitration agreement is governed by general state-law principles of contract interpretation.” Bar-S Foods, ¶18, 174 P.3d at 574 (internal quotations omitted) (citing Wilkinson v. Dean Witter Reynolds, Inc., 1997 OK 20, ¶9, 933 P.2d 878, 880). Courts “should . . . resolve[] in favor of coverage” any doubts concerning the arbitrability of a particular dispute. City of Muskogee v. Martin, 1990 OK 70, ¶8, 796 P.2d 337, 340 (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583, 80 S.Ct. 1347, 1353 (1960)); see also Rogers v. Dell Computer Corp., 2005 OK 51, ¶17, 138 P.2d 826, 830 (declaring “ambiguity falls on the side of the existence of an agreement to arbitrate.”). ¶15 The Supreme Court also has recognized that in situations “where arbitration has been contracted for it constitutes a substantive and mandatory right.” Voss, ¶5, 618 P.2d at 928. The right to compel arbitration is thus an affirmative defense to an action on contract. See Shaffer v. Jeffrey, 1996 OK 47, ¶6, 915 P.2d 910, 913. Although “a party may waive its contractual right to compel arbitration,” id., such waiver “is not easily inferred” and “[t]he party asserting waiver has the burden of proof regarding that issue.” Northland, ¶7, 897 P.2d at 1162 (citing Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968) and Page v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 806 F.2d 291, 29394 (1st Cir. 1986)).

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¶16 The Northland Court analyzed the waiver issue under the Old Act, which was then in effect.7 Finding “scant Oklahoma law on the subject,” it sought guidance from federal decisions construing the Federal Arbitration Act (FAA), 9 U.S.C. §§1-15 (1988).8 Noting the lack of a “uniform test . . . for the determination of waiver,” the Northland Court adopted the following six-factor test, which “essentially encompasses the various tests adopted in most jurisdictions”: (1) whether a party has taken actions that are inconsistent with a right to arbitrate; (2) whether the issue of arbitration was raised only after there had been significant preparation for litigation; (3) whether the trial date is near or there has been a long delay in raising the issue of contractual arbitration rights; (4) whether the party invoking the arbitration right has filed pleadings in the litigation without seeking a stay of the proceedings; (5) whether the party seeking arbitration has engaged in discovery proceedings that are not available in arbitration or participated in other “important intervening steps;” and, (6) whether the opposing party has been prejudiced by the delay. Northland, ¶8, 897 P.2d at 1162 (citing Peterson v. Shearson/American Express, Inc., 849 F.2d 464, 467 (10th Cir. 1988)). ¶17 Appellants first argue the Northland analysis does not survive under the New Act because the New Act contains a waiver provision whereas the Old Act did not. Appellants next contend no waiver occurred under the New Act. They base this argument on both the language of the Agreement and their impression §1855 expresses a “predilection . . . against involuntary waivers” and “appears to require” arbitration waivers to be “clear, knowing and intentional” and/ or “unequivocal” to be effective. In the alternative, Appellants insist Woodruff’s evidence is insufficient to prove they waived their right to arbitration under Northland. ¶18 Appellants’ observation the New Act contains a waiver provision does little to advance their claim the New Act renders the Northland analysis obsolete. The applicable waiver provision of the New Act, §1855(B)(1), merely declares parties to arbitration agreements may not “[w]aive or agree to vary the effect of the requirements of . . . subsection A of Section 1857” until “a controversy arises that is Vol. 81 — No. 8 — 3/20/2010

subject to an agreement to arbitrate.” Section 1857(A) establishes arbitration agreements are “valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” Read together, these provisions permit parties to waive their contractual right to arbitrate but only after an arbitrable dispute has arisen. They do not establish the factors or guiding principles a court should consider in determining whether and under what circumstances waiver of arbitration occurs. Because the New Act provides no more direction on the issue of waiver than the Old Act, we reject Appellants’ argument it supersedes Northland. ¶19 That said, like the trial court, we conclude the fifth Northland factor — namely, “whether the party seeking arbitration has engaged in discovery proceedings that are not available in arbitration or participated in other ‘important intervening steps’” — is no longer relevant to the waiver analysis. While only very limited discovery procedures were available under both the Old Act and the FAA,9 arbitrators have much broader discovery-related powers today. Under the Old Act, arbitrators could do little more than issue “subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence” at the arbitration hearing.10 Indeed, only if a particular witness could not be subpoenaed or was unable to attend the hearing could an arbitrator, upon application of a party, “authorize a deposition to be taken” of that witness. It follows that, under the Old Act, most, if not all, discovery requests were classifiable as preparation for litigation and inconsistent on their face with pursuit of the right to arbitrate. Thus, one of the primary considerations in any pre-2006 waiver analysis was whether the party seeking arbitration had taken advantage of trial-related discovery procedures prior to filing a motion to compel, thus gaining an unfair advantage in the arbitration process and causing prejudice to the opposing party. ¶20 Discovery powers available to arbitrators under the New Act are virtually identical to those available to trial judges. Arbitrators now have authority to allow such methods of discovery as they deem appropriate; permit the taking of depositions regardless of witnesses’ availability to attend arbitration hearings; issue protective orders; demand compliance with their discovery-related orders; and take action against non-complying parties.11 For this reason, as the

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trial court conceded in its opinion below, the fifth factor of Northland — “whether the party seeking arbitration has engaged in discovery proceedings that are not available in arbitration or participated in other important intervening steps” — is irrelevant to a waiver analysis conducted under the New Act. ¶21 With this in mind, we review Northland and its progeny to guide us in determining whether Appellants waived their contractual right to arbitration in this case. The relevant facts in Northland are as follows: Northland, the party seeking arbitration, specifically requested a jury trial in its petition. Without seeking a stay, Northland subjected Kellogg, the party opposing arbitration, to “considerable” discovery requests; filed a motion for summary judgment; and participated in a pretrial conference. It was not until ten months into the litigation that Northland finally moved to compel arbitration. Citing Sweater Bee by Banff, Ltd. v. Manhattan Indus., Inc., 754 F.2d 457, 466 (2d Cir. 1985), cert. denied, 474 U.S. 819, 106 S.Ct. 68 (1985), the Court reasoned such “tactics of delay or harassment” prejudiced the opposing party and caused him expense. Even though the trial court had yet to set a trial date, the Court held Northland had waived its right to arbitration because “there had been significant preparation for litigation” and Northland’s litigation actions — in particular, its motion for judgment on the merits — were “inconsistent with the right to arbitrate.” ¶22 In Towe, Hester & Erwin, Inc. v. Kansas City Fire & Marine Ins. Co., 1997 OK CIV APP 58, 947 P.2d 594, defendant Continental immediately raised its contractual right to arbitration as an affirmative defense in its answer. After the trial court rejected its two applications to compel arbitration and stay proceedings (one under the FAA and one under the Old Act), Continental appealed. The Court, stressing both the strong presumption in favor of arbitration as well as appellee’s failure to show prejudice, found all six Northland factors weighed in Continental’s favor and held Continental did not waive its right to arbitrate the dispute. ¶23 In Booker v. Sumner, 2001 OK CIV APP 22, 19 P.3d 904, Booker, the party opposing arbitration, initiated the court action. Sumner, the party seeking to compel arbitration, answered without asserting its arbitration rights. At one point during Booker’s deposition of him, Sumner mentioned the arbitration clause but did not demand arbitration. Sumner continued to par762

ticipate in discovery after that by deposing Booker and responding to Booker’s interrogatories, requests for admissions, and requests for production of documents. It was not until eighteen months into the litigation, in response to Booker’s motion for summary judgment, that Sumner first asserted his right to arbitrate. The trial court granted Booker’s motion for summary judgment and denied Sumner’s motion to compel. On appeal, the Court reasoned: Sumner’s knowing acquiescence in continuation of the litigation process is inconsistent with the right to arbitrate. There was a long delay in the request and the case had been presented for final disposition by Booker’s motion for summary judgment… … [Sumner] had engaged in discovery proceedings through depositions and interrogatories. If binding arbitration [were] imposed, Booker would be prejudiced by the excessive loss of time required to get a determination of his rights, and by the expense of litigation which would have been obviated by Sumner’s timely demand for arbitration. Id. ¶¶19-20, 19 P.3d at 907. Finding Booker satisfied all six Northland factors, the Court affirmed the trial court’s denial of Sumner’s motion to compel arbitration. ¶24 In Gish v. ECI Servs. of Okla., Inc., 2007 OK CIV APP 40, 162 P.3d 223, ECI answered Gish’s petition, exchanged written correspondence with opposing counsel, and participated in discovery, all without demanding mandatory arbitration under the contract. ECI did not file its motion to compel until fourteen months after Gish initiated the lawsuit. Four months prior to trial and six years after the lawsuit began, ECI renewed its motion to compel. Citing Booker, the Court found the actions ECI took prior to filing its initial motion to compel were: inconsistent with enforcement of what ECI believes to be a binding agreement to arbitrate the dispute. By its silence, ECI allowed the wheels of the litigation to turn, causing [Gish] to expend time, energy and resources toward trial preparation. Opportunity during the intervening fourteen months was afforded ECI to raise the arbitration defense. Id. ¶28, 162 P.2d at 230. The Court affirmed the denial of ECI’s motion to compel.

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¶25 In Green Tree Servicing, L.L.C. v. Fisher, 2007 OK CIV APP 50, 162 P.3d 944, a case brought under the New Act, the promissory note and security agreement Fisher executed to Green Tree contained an arbitration clause providing all disputes arising from or related to the parties’ agreement were subject to binding arbitration. Much like the Agreement in the case before us on appeal, the mandatory arbitration provision at issue in Green Tree made an exception for actions in foreclosure.12 Nine months after Fisher defaulted on the promissory note and sought protection in bankruptcy, Green Tree filed a petition to foreclose its security interest and for replevin. In its answer and counterclaim, Fisher sought damages for Green Tree’s alleged violations of the bankruptcy injunction. In its reply, filed approximately nine weeks after its own petition was filed, Green Tree asserted arbitration as an affirmative defense for the first time. ¶26 The trial court reasoned “Green Tree’s filing of a foreclosure and replevin action was specifically permitted by the arbitration clause, and did not constitute a waiver of its right to arbitration. Furthermore, the record does not support a conclusion that Green Tree waived arbitration by failing to timely invoke the clause as an affirmative defense.” Id., ¶10, 162 P.3d at 946. Accordingly, the trial court found “no reason for the application of waiver, abandonment, or estoppel” in the case. Id. Because Green Tree filed its action after its contractual relationship with Fisher was terminated by discharge in bankruptcy, however, the Court reasoned “the acts giving rise to the cause of action did not have their roots in the former contract, but in alleged behavior that occurred subsequent to the contract’s termination, and which did not arise as a natural consequence of the contract.” Id., ¶17, 162 P.3d at 948. For this reason, the Court held the arbitration clause inapplicable to Fisher’s counterclaim and affirmed the trial court’s denial of Green Tree’s motion to compel. ¶27 Keeping the persuasive authority of these decisions in mind, we apply the surviving Northland factors to the facts before us on appeal. The first is whether Appellants’ actions were “inconsistent with a right to arbitrate.” Because foreclosure actions are specifically authorized by the arbitration clause of the parties’ Agreement,13 filing a foreclosure petition in the trial court was not inconsistent with Willco’s contractual right to arbitrate.14 With Vol. 81 — No. 8 — 3/20/2010

the exception of the lone set of discovery requests they served on Woodruff, the remaining pleadings Appellants filed with the trial court — Willco’s reply to Woodruff’s counterclaims, Williamson’s answer to her third-party petition, Appellants’ Rule 13(D) motion, and their motion to quash — were defensive in nature, made in direct response to Woodruff’s pleadings and discovery requests. Even if it were appropriate under the New Act to classify Appellants’ single set of discovery requests as inconsistent with their right to arbitrate, Woodruff never disclosed any information in response to those requests and Appellants likely will be able to serve her with identical requests as part of the arbitration process. For these reasons, Appellants’ actions in the trial court were not inconsistent with their right to arbitrate.15 ¶28 For the second Northland factor, we must determine whether Appellants raised the issue of arbitration “only after there had been significant preparation for litigation.” Because the first and second Northland factors depend on much the same evidence, the trial court combined the two in ruling on Appellants’ motion to compel, finding “Willco filed this action without providing notice or arbitration or seeking a stay of the proceedings and affirmatively sought relief from the Court including conducting discovery, inconsistent with the right to arbitrate.” We disagree. ¶29 First, as discussed above, the arbitration clause of the parties’ Agreement expressly permits Willco to file an action in foreclosure. Thus, the relief Willco “affirmatively sought” from the trial court — foreclosure of its lien — was not inconsistent with its contractual right to arbitrate. Second, the trial court’s categorization of Appellants’ discovery request as an affirmative, relief-seeking act is incorrect based on the facts and the law. Woodruff never responded to Appellants’ discovery request and, even if she had, under the New Act, Appellants would be entitled to ask her the same questions as part of the arbitration process. ¶30 The trial court’s emphasis on Willco’s failure to provide notice of arbitration or seek a stay of the proceedings when it filed its foreclosure petition is similarly misplaced. Given that foreclosure actions are expressly allowed by the arbitration provision of the parties’ Agreement, there was no reason for Willco to provide notice of arbitration or to seek a stay of proceedings when it filed its petition. The earliest point at which it would have been appropriate

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for Appellants to raise their contractual right to arbitration was in their individual responses to Woodruff’s counterclaims and third-party claims, which they filed April 7, 2008 — just ten weeks before they moved to compel arbitration. It was Woodruff, through her offensive pleadings, who recast the the case from a pure foreclosure action to one involving a variety of other disputes. As long as the case remained a simple foreclosure action, the parties’ contractual right to arbitration did not arise and there was no need for Appellants to compel arbitration or seek a stay of proceedings.16 ¶31 Moreover, it is difficult to envision a procedural scenario in which the parties could be said to have undertaken “significant preparation for litigation” where, as here, the trial court has yet to issue a scheduling order. To the extent any of Appellants’ actions before the trial court are properly classified as “preparation for litigation,” they do not rise to the level of “significant.” Woodruff failed to carry her burden of proof on the second Northland factor. ¶32 Woodruff fares no better with regard to the third Northland factor: “whether the trial date is near or there has been a long delay in raising the issue of contractual arbitration rights.” It is undisputed the trial date was not near when Appellants moved to compel arbitration. It was early in the litigation and the trial court had yet to issue a scheduling order or set a date for trial. As for whether there had been a “long delay in raising the issue of contractual arbitration rights,” the trial court declared “Willco’s delay in seeking to compel arbitration was not a long delay.” Despite this finding, the trial court described the delay as “indicative of actions inconsistent with the right to arbitrate,” even though inconsistency with arbitration is the focus of the first Northland factor, not the third. Moreover, the antiwaiver provision of the parties’ Agreement declares “[f]ailure by any Party to enforce or exercise rights under this Agreement … shall not affect the right of any Party to exercise or enforce any such rights or require such performance at any time thereafter.” Because the trial date was not near, Appellants’ delay in raising the issue of contractual arbitration rights was not long, and the parties agreed to an antiwaiver provision, Woodruff failed to satisfy the third prong of the Northland analysis. ¶33 The fourth factor examines “whether the party invoking the arbitration right has filed pleadings in the litigation without seeking a 764

stay of the proceedings.” As discussed in examining the second factor above, because the arbitration provision of the parties’ Agreement expressly permits actions in foreclosure, there was no reason for Willco to provide notice of arbitration to Woodruff or seek a stay of proceedings upon initiating this lawsuit. While it may be true, as the trial court concluded, that the parties, taken together, performed “substantial work” before the trial court, this finding is unresponsive to the fourth Northland factor. The fourth factor focuses solely on “the party invoking the arbitration right,” not the party opposing it. ¶34 As discussed in response to the first factor above, with the exception of Willco’s initial pleading (a foreclosure petition specifically allowed by the parties’ Agreement) and the one set of discovery requests Appellants served on Woodruff, all of the remaining documents Appellants filed with the trial court were responsive in nature, undertaken in direct reaction to Woodruff’s pleadings and discovery requests. Aside from Willco’s initial petition, Appellants neither filed offensive pleadings nor requested summary judgment prior to seeking a stay of proceedings upon moving to compel arbitration June 20, 2008. For these reasons, we find Woodruff has failed to satisfy the fourth Northland prong. ¶35 For the fifth (formerly sixth) and final Northland factor, we must determine “whether the opposing party has been prejudiced by the delay.” In its order denying Appellants’ motion to compel arbitration, the trial court found Woodruff made “no showing … that … a substantial prejudice [would be] visited upon [her] if arbitration were compelled — whatever prejudice there might be to Woodruff is slight since work that has been performed would be performed in arbitration.” We agree with the trial court and find Woodruff has failed to show she would suffer any prejudice if Appellants compelled arbitration in this case. Conclusion ¶36 We find Woodruff failed to satisfy any of the five Northland factors that survive under the New Act. In light of this finding and the fact waiver of contractual arbitration provisions is not easily inferred,18 we hold Appellants’ actions before the trial court were insufficient to waive their right to compel arbitration of Woodruff’s counterclaims and third-party claims. We reverse the order of the trial court.

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¶37 REVERSED. JOPLIN, P.J., and BELL, V.C.J., concur. 1. The arbitration and waiver provisions of the Agreement state in relevant part and with emphasis added: §10. Arbitration of Disputes. Any and all claim(s), dispute(s) and controversy(ies) of every kind and nature between the Parties to this Agreement, including but not limited to: (i) the construction of the Dwelling as set forth herein; (ii) the course of dealing by and between the Parties to this Agreement; (iii) the existence, construction, validity, interpretation or meaning of this Agreement; (iv) the Parties’ performance, non-performance, breach, enforcement, operation, continuance or termination under this Agreement; (v) Builder’s satisfactory completion of items contained in the Punchlist, if any, referenced in §5 above; (vi) all allegations of liability between the Parties hereto, including matters arising by virtue of the relationship evidenced by this Agreement between Parties, or otherwise; and (vii) all allegations of liability, tortious conduct, misrepresentation, concealment, fraud, negligence, etc., shall be submitted to binding arbitration . . . The Parties hereby stipulate and agree that the provisions of this section shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy, dispute or claim arbitrable as set forth herein. Furthermore, the obligations inuring to each Party under this section to submit any and all claim(s), dispute(s) and controversy(ies) to binding arbitration shall survive the execution and closing of the transaction contemplated by this Agreement. Nothing contained in this §10 shall be deemed to limit or restrict Builder’s right to file a materialmen’s or mechanics’ lien against the Real Property or prosecute foreclosure proceedings based thereupon. I have read and understand the aforestated provisions with respect to my duty to submit ALL disputes relative to this Agreement to binding arbitration: Initials: /s/CLW /s/DW §18. Waiver. Failure by any Party to enforce or exercise rights under this Agreement, or to require performance by the other Party hereunder, shall not affect the right of any Party to exercise or enforce any such rights or require such performance at any time thereafter, nor shall the waiver by any Party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision, nor shall such act constitute a waiver of the provision itself. 2. In addition to Woodruff, Willco named Wachovia Mortgage Corporation as a defendant in its original petition. Willco later filed an unopposed motion for leave to dismiss Wachovia Mortgage Corporation and substitute Victore Insurance Company as defendant. The trial court granted the unopposed motion June 4, 2008. 3. Rule 13(D) of the Rules for the District Courts of Oklahoma provides in its entirety: Should it appear from an affidavit of a party opposing the motion [for summary judgment] that for reasons stated the party cannot present evidentiary material sufficient to support the opposition, the court may deny the motion for summary judgment or summary disposition without prejudice or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. A motion filed pursuant to this paragraph shall not be deemed a consent to the exercise by the court of jurisdiction over the party, or a waiver of the right to file a motion to dismiss the action. 4. See supra note 2. 5. Appellants filed a brief in support of their motion to compel arbitration July 28, 2008. Woodruff filed three additional pleadings August 12, 2008, the day prior to the trial court’s hearing on Appellants’ motion to compel arbitration. In the first such pleading, Woodruff sought leave to amend her claims against Willco and Williamson; in the second, to join persons needed for just adjudication; and in the third, to add another third-party defendant. 6. Woodruff did not appeal this ruling. 7. The New Act superseded the Old Act effective January 1, 2006. See 12 O.S. Supp. 2005 §1854. 8. In Southland Corp. v. Keating, 465 U.S. 1, 13-16, 104 S.Ct. 852, 859861 (1984), the United States Supreme Court ruled invalid a state law limiting the applicability of arbitration in a franchise contract and, by that ruling, made applicable to both federal and state courts the body of substantive federal law construing and enforcing contracts that fall within the FAA. 9. Section 7 of the FAA, 9 U.S.C.A. §7, provides in pertinent part:

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The arbitrators . . . may summon in writing any person to attend before them or any of them as a witness and in a proper case to bring with him or them any book, record, document, or paper which may be deemed material as evidence in the case. . . . if any person or persons so summoned to testify shall refuse or neglect to obey said summons, upon petition the United States district court for the district in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person or persons before said arbitrator or arbitrators, or punish said person or persons for contempt in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States. 10. Section 807 of the Old Act provides in pertinent part: A. The arbitrators may issue subpoenas for the attendance of witnesses and for the production of books, records, documents and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served and upon application to the court by a party or the arbitrators, enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action. B. On application of a party and for use as evidence, the arbitrators may authorize a deposition to be taken of a witness who cannot be subpoenaed or is unable to attend the hearing, in the manner and upon the terms designated by the arbitrators under the laws for such procedure of this state. 11. Section 1868 of the New Act provides in pertinent part: A. An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. . . . . B. In order to make the proceedings fair, expeditious, and costeffective, upon request of a party to or a witness in an arbitration proceeding, an arbitrator may permit a deposition of any witness to be taken for use as evidence at the hearing, including a witness who cannot be subpoenaed for or is unable to attend a hearing. The arbitrator shall determine the conditions under which the deposition is taken. C. An arbitrator may permit such discovery as the arbitrator decides is appropriate in the circumstances, taking into account the needs of the parties to the arbitration proceeding and other affected persons and the desirability of making the proceeding fair, expeditious, and cost-effective. D. If an arbitrator permits discovery under subsection C of this section, the arbitrator may order a party to the arbitration proceeding to comply with the arbitrator’s discovery-related orders, issue subpoenas for the attendance of a witness and for the production of records and other evidence at a discovery proceeding, and take action against a noncomplying party to the extent a court could if the controversy were the subject of a civil action in this state. E. An arbitrator may issue a protective order to prevent the disclosure of privileged information, confidential information, trade secrets, and other information protected from disclosure to the extent a court could if the controversy were the subject of a civil action in this state. 12. The parties’ arbitration provision provided, in pertinent part: Notwithstanding anything hereunto the contrary, you retain an option to use judicial or non-judicial relief to enforce a security agreement relating to the collateral secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation or to foreclose on the collateral. Such judicial relief would take the form of a lawsuit. The institution and maintenance of an action for judicial relief in a court to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement, shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Agreement, including the filing of a counterclaim in a suit brought by you pursuant to this provision. 13. See supra, note 1. 14. In addition to the express language of the parties’ Agreement, several provisions of the New Act presuppose actions proceeding simultaneously in the trial court and before an arbitrator. Section 1856(B) provides in part: “Unless a civil action involving the agreement to arbitrate is pending, notice of an initial application and motion to the court under the Uniform Arbitration Act must be served in the manner provided by law for the service of a summons in the filing of a civil action.” Section 1857(D) declares: “If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.”

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Finally, §1858(F) states: “If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.” 15. Unlike in Northland, it was Woodruff, the party opposing arbitration, not Appellants, the parties seeking arbitration, who moved for summary judgment in this case. We cannot charge Woodruff’s summary judgment motion against Appellants in determining whether Appellants waived their contractual right to arbitrate. 16. Woodruff has pointed to no Oklahoma authority in support of her premise that a party waives its contractual right to arbitration by failing to move to compel arbitration and stay proceedings immediately upon filing a foreclosure petition, particularly where, as here, foreclosure actions are expressly permitted by the parties’ arbitration clause and excluded from waiver by the terms of their agreement. 17. Citing Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1489 (10th Cir. 1994), the Court in Towe, Hester, & Erwin listed the fourth Northland factor as “whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings.” Towe, Hester, & Erwin, Inc., ¶24, 947 P.2d at 599; see also Gish, ¶26, 162 P.3d at 230 (same). 18. See Northland ¶7, 897 P.2d at 1162

2010 OK CIV APP 19 ROBIN L. GALARZA, Petitioner/Appellant, v. LOUIS A. GALARZA, Respondent/ Appellee. Case No. 106,238. October 2, 2009 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE ALLEN J. WELCH, JR., TRIAL JUDGE AFFIRMED Sam George Caporal, Mark W. Hayes, Oklahoma City, Oklahoma, for Petitioner/Appellant, Rita J. Jencks, JENCKS LAW FIRM, P.L.L.C., Edmond, Oklahoma, for Respondent/Appellee. CAROL M. HANSEN, PRESIDING JUDGE: ¶1 Petitioner/Appellant, Robin Galarza (Mother), seeks review of the trial court’s orders (1) denying her request to relocate the parties’ minor child (Child), (2) awarding attorney fees to Respondent/Appellee, Louis Galarza (Father), (3) finding Mother guilty of indirect contempt, and (4) terminating joint custody and awarding sole custody to Father. We affirm, finding the trial court properly applied the law and its orders are not clearly against the weight of the evidence. ¶2 The record on appeal begins with a court minute entered on December 2, 2004, granting a divorce to the parties based on incompatibility and reserving all other issues for further hearing. A later order granted Mother temporary full custody of Child. On February 12, 2007, the parties tried the issues of permanent custody and property division. The trial court announced its ruling on March 14, 2007, grant766

ing the parties joint custody of Child, with Mother designated as the primary custodian. It directed Father’s visitation on alternating weekends would begin after school on Thursdays. The trial court also stated each parent would have the right of first refusal to care for Child when the parent with physical custody was unavailable to attend to Child for a period in excess of four hours. ¶3 The trial court also announced its ruling regarding property division. Both parties had federal employee thrift savings plan (TSP) accounts. Father had liquidated his TSP account on August 12, 2003, at which time the balance in the account was $5,400.00. The trial court stated Mother was entitled to half of that amount, or $2,700.00. It noted the evidence established the balance in Mother’s TSP account was $14,486.03 as of May 31, 2003, and stated, I will also invite counsel to establish the value in her account as of August 12, 2003, the same day we’re using as a point of reference for [Father] or the nearest date to that day regarding the quantification of the funds in her TSP account. [Father] is awarded one half of that sum less the aforementioned $2700. Such will be paid to [Father] within 90 days of quantification. And, of course, we’ll need to have something in a journal entry reflecting this computation.... We will therefore, quantify both accounts as of August 12, 2003, and offset the difference and [Mother] will pay [Father] one half of that balance. ... [Mother’s attorney] is invited to prepare a journal entry. ¶4 Although the record does not contain Mother’s notice of relocation of Child, it does contain Father’s objection to relocation, filed on April 30, 2007, stating Mother notified him on April 17, 2007 that she planned to relocate with Child to San Antonio, Texas. On June 20, 2007, Father moved to settle the journal entry for the custody and property awards. He also applied for a contempt citation, asserting Mother had not paid him certain portions of the property division, including his share of the TSP account, and had not provided information on the quantification of the account although he had made repeated requests. The trial court issued the contempt citation, directing Mother to appear for arraignment on July 9, 2007. At arraignment, Mother did not appear personally but through her attorney. The trial

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court bonded Mother on her own recognizance and set trial for September 19, 2007.

the custody and visitation issues because the petitioner withheld vital information.

¶5 On July 31, 2007, the trial court heard the relocation objection. The parties stipulated Mother filed the notice of relocation on April 17, 2007.1 Mother testified she moved to San Antonio on June 12, 2007 because her husband had obtained a job there after finishing pharmacy school. On cross-examination, Mother acknowledged her husband was offered the job in San Antonio in October 2006, four months before the custody trial, and that he accepted the job on January 12, 2007. She testified:

Before the Court at this point in time, is one finite issue, is the proposed relocation of the child made in good faith[.] [T]his is not a close call. The petitioner fails to satisfy her burden of proof that the proposed relocation is in good faith. With all due respect, if this is not bad faith, I don’t know what is. Objection sustained. Permission to relocate denied.

Q Did you offer to the Court any information about your already planned move to San Antonio? A No. No, there was no discussion of a move. This was just — Q Did you agree to joint custody at the trial? A Yes, I said that was what I wanted, joint custody with me being primary custodian. That’s what I wanted. Q Okay. Did you agree to give extra visitation under that joint custody plan? A I don’t remember specifics but, yes, I suppose so. Q And so you knew on February 14th, I believe it was that you were moving to San Antonio. Your husband had already signed the contract; is that correct? A Yes, ma’am. Q But you did not feel that that was necessary to inform this Court about that? A No, ma’am, I didn’t. This was a settlement of property and Sam advised me not to muddle the issues. ¶6 The trial court ruled Mother had failed to meet her burden of proving the proposed relocation was in good faith. It reasoned the issues related to joint custody and shared parenting “consumed a majority of our time and efforts in the course of this trial,” and the parties’ presentations and the trial court’s ruling would have been different had Mother “been forthright regarding her intentions to move to San Antonio.” The trial court concluded, A great deal of previous time of the court and of all concerned was literally wasted during the hearing on the merits of Vol. 81 — No. 8 — 3/20/2010

The trial court declined to treat Father’s objection to relocation as a motion to modify custody. It did not enter an order memorializing its ruling until August 11, 2008. ¶7 On September 19, 2007, the trial court heard the contempt citation and motion to settle journal entry. Mother’s attorney appeared but she did not. The trial court found Mother in contempt, but declined to issue a bench warrant. The parties settled the journal entry issues and the trial court signed an order memorializing its ruling of March 14, 2007. The journal entry as to custody and property division was filed the next day, September 20, 2007. The trial court’s order of contempt, which was not filed until August 11, 2008, found its “ruling of March 14, 2007 was enforceable when entered by the Court on March 14, 2007,” and Mother was “guilty of indirect contempt for failing to follow the March 14, 2007 ruling of the court regarding paying the property division awards within 90 days of the Court’s order.” ¶8 On October 26, 2007, Father moved to modify custody on the grounds Mother had withheld information at the custody trial regarding her intent to relocate, systematically withheld information about Child, regularly interfered with Father’s visitation with Child both in person and on the phone, was attempting to alienate Child from Father, and would not communicate with Father about Child. Father requested he be granted sole custody. On July 16, 2008, Mother filed her objection, asserting there had been no permanent, substantial, or material change of condition. ¶9 The parties tried the change of custody issues on July 29, 2008. Mother, Father, and Child’s counselor testified. The guardian ad litem reported joint custody was not working because communication was ineffective and the parties disagreed regarding Child’s school, day care, extracurricular activities, and counseling. She opined both parents were good

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parents but Mother was emotionally reactive and unable to override her own emotions to do what was in Child’s best interests. She pointed to unilateral decisions each parent had made but enumerated several major decisions Mother had made regarding Child without any mention to Father although the parties had joint custody. The guardian ad litem recommended sole custody be given to Father. ¶10 The trial court terminated joint custody, finding the joint custody was not working and was not serving Child’s bests interests. It awarded sole custody to Father. It entered its order on August 20, 2008. ¶11 Mother filed her petition in error appealing four orders: Order Settling Journal Entry and Order of Contempt filed August 11, 2008; Order Denying Petitioner’s Request to Relocate Minor Child filed August 11, 2008; Order Awarding Attorney Fees, filed August 11, 2008; and Order Modifying Child Custody and Support filed August 20, 2008. The record on appeal does not contain the motion for attorney fees or a transcript of the hearing on the motion. As the appellant, Mother bears the responsibility of bringing to this court a record upon which we can proceed. Robbins v. Oklahoma Alcoholic Beverage Control Bd., 1969 OK 202, 461 P.2d 610, 613. We may not presume error from a silent record. Absent a record showing otherwise, we must presume the order was responsive to the proof adduced and the trial court did not err. Hamid v. Sew Original, 1982 OK 46, 645 P.2d 496, 497. Therefore we will not review the Order Awarding Attorney Fees. I ¶12 Mother’s first six contentions of error challenge the trial court’s denial of her request to relocate Child. She argues the trial court erred in (1) denying relocation based on her “intent to move in a prior custody trial,” (2) failing to apply 43 O.S.Supp.2009 §112.2A2 in conjunction with 43 O.S.Supp.2002 §112.3(K)3, (3) evaluating Mother’s good faith based on the time and effort the trial court expended on the case, (4) failing to separate the relocation hearing from the prior custody hearing, (5) failing to treat Father’s stipulation that Mother gave proper notice of relocation as determinative on the issue of good faith, and (6) considering evidence of Mother’s intent to relocate prior to the date she gave notice of relocation to Father. We will review the trial court’s legal rulings de novo, but will not disturb its factual determinations unless they are against the 768

clear weight of the evidence. Harrison v. Morgan, 2008 OK CIV APP 68, 191 P.3d 617, 619. ¶13 Sections 112.2A and 112.3, construed together, “recognize a preference for allowing the custodial parent [to] place the residence of the children where he or she thinks best.” Id. at 624. However, the latter statute sets forth a procedure to be followed when the relocation exceeds a distance of 75 miles for a period of 60 days or more. §112.3(A)(5). A person with “the right to establish the principal residence of the child” must notify all those entitled to visitation of a proposed relocation at least 60 days before the date of the intended move. §112.3(B) and (C). ¶14 If a timely objection is filed, the relocating person has the initial burden of showing the proposed relocation is made in good faith. §112.3(K). Good faith is “an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious.” 25 O.S.2001 §9. If good faith is shown, the burden of proof then shifts to the objector to show the proposed move is not in the best interest of the child. 43 O.S.Supp.2002 §112.3(K). ¶15 The trial court properly applied the statutes in deciding this case, requiring Mother to bear the burden of showing the proposed relocation was in good faith. The timeliness of notice of relocation was not determinative of the good faith issue. The appropriate inquiry was whether Mother established she had an honest intention to abstain from taking any unconscientious advantage of Father with regard to Child’s custody, even through legal means, and whether she had any information or belief which would render her actions unconscientious. ¶16 The trial court’s finding Mother did not make her proposed relocation in good faith is supported by her own testimony she entered into a joint custody agreement while withholding information that she intended to move. “A cardinal criterion for an award of joint custody is the agreement of the parties and their mutual ability to co-operate in reaching shared decisions in matters affecting the child’s welfare.” Anderson v. Anderson, 1990 OK CIV APP 23, 791 P.2d 116, 117. Under joint custody, both parents are custodial parents within the meaning of §112.2A, and the right to change Child’s resi-

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dence should be exercised through cooperation in reaching a shared decision. ¶17 Father entered into the joint custody agreement and the court approved it, believing Mother intended to conduct herself as a joint custodian and to continue living in Oklahoma County. That Mother knew otherwise and deliberately withheld that information, only revealing her true intent after obtaining Father’s agreement and the court’s approval, was unconscientious. Accordingly, the trial court did not err in denying Mother’s request to relocate Child based on her failure to show good faith. II ¶18 Mother’s next six contentions of error challenge the trial court’s order modifying child custody. She contends the trial court erred by applying improper standards for severing joint custody and awarding custody to Father and by implementing the guardian ad litem’s recommendation. ¶19 The Oklahoma Supreme Court discussed the standard for terminating joint custody in Daniel v. Daniel, 2001 OK 117, 42 P.3d 863. In applying 43 O.S.2001 §109(G),4 the Court stated, [A] change in custody from joint to one parent differs from a change in custody from a one custodial parent to a non-custodial parent. Joint custody will not succeed without the cooperation of the parties. When it becomes apparent to the court that joint custody is not working and it is not serving the child’s best interests, then a material and substantial change of circumstance has occurred and the joint custody arrangement must be vacated. Id. at 870. ¶20 The trial court properly applied this standard below. Its fact finding that joint custody was not working and not serving Child’s bests interests was well supported by the testimony of Mother, Father, and the guardian ad litem as to the parties’ lack of communication and cooperation regarding Child. In addition, Mother acknowledges in her brief in chief, “The mother and father have never gotten along since the first day the case was filed, and probably never will.” Under these circumstances, the trial court did not err in terminating joint custody. ¶21 After the trial court terminates joint custody, it must award custody as though no prior Vol. 81 — No. 8 — 3/20/2010

custody award had been made. §109(G). The appropriate standard in making a custody determination is the best interests of the child. Daniel, 42 P.3d at 871. We will not disturb the trial court’s judgment regarding custody absent an abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence. Id. ¶22 The trial court’s finding the best interests of Child were served by awarding custody to Father is well supported by the record, especially the report of the guardian ad litem. Mother argues the guardian ad litem was biased against her and therefore the trial court should have disregarded her recommendation. Mother was entitled to cross-examine the guardian ad litem for the purpose of eliciting facts to show bias. Frierson v. Hines, 1967 OK 60, 426 P.2d 362, 364. She does not assert she sought, but was denied the opportunity to do so. The trial court was entitled to choose which testimony to believe as it has the advantage over this Court in observing the behavior and demeanor of the witnesses. Mueggenborg v. Walling, 1992 OK 121, 836 P.2d 112, 114. We find no error. III ¶23 Mother’s last contention is the court erred in issuing a contempt citation when there was no written order filed of record. The court may enforce an order pertaining to property division in a divorce as an indirect contempt of court if the order is wilfully disobeyed. 43 O.S.2001 §111. In a divorce action, the adjudication of any issue is enforceable when pronounced by the court. 12 O.S.Supp.2007 §696.2(E). Therefore, the trial court may find a party in indirect contempt for violation of its order after the decision is pronounced but before the journal entry is filed. ¶24 For the foregoing reasons, the trial court’s orders are AFFIRMED. MITCHELL, C.J., and JOPLIN, J., concur. 1. Although the trial transcript indicates the notice was entered into evidence, we do not find it in the record, either as an exhibit or as a court filing. 2. 43 O.S.Supp.2009 §112.2A, formerly codified at 10 O.S.2001 §19, provides, A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child. 3. 43 O.S.Supp.2002 §112.3(K) provides, The relocating person has the burden of proof that the proposed relocation is made in good faith. If that burden of proof is met, the burden shifts to the nonrelocating person to show that the proposed relocation is not in the best interest of the child.

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4. 43 O.S.2001 §109(G) provides, 1. The court may terminate a joint custody decree upon the request of one or both of the parents or whenever the court determines said decree is not in the best interests of the child. 2. Upon termination of a joint custody decree, the court shall proceed and issue a modified decree for the care, custody, and control of the child as if no such joint custody decree had been made.

2010 OK CIV APP 20 JONATHON TAYLOR, Individually, Plaintiff/Appellant, v. DEBORAH L. GLENN, Individually, and DEBBIE GLENN ENTERPRISES, L.L.C., an Oklahoma Limited Liability Company, Defendants/ Appellees, and Everett Chambers, II, Individually; Everett Chambers, I, Individually; and Brenda Chambers, Defendants. Case No. 106,654. January 15, 2010 APPEAL FROM THE D ISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE VICKI L. ROBERTSON, JUDGE AFFIRMED Thomas J. Steece, OK LEGAL SERVICES, P.L.L.C., Oklahoma City, Oklahoma, and Thomas A. Ryan, THOMAS A. RYAN, P.L.L.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant, Matthew B. Wade, Oklahoma City, Oklahoma, for Defendants/Appellees. ROBERT DICK BELL, VICE-CHIEF JUDGE: ¶1 In this negligence action for damages resulting from a dog attack, Plaintiff/Appellant, Jonathon Taylor, seeks review of the order granting summary judgment to the owner/lessee of the real property, Defendants/Appellees, Deborah L. Glenn and Debbie Glenn Enterprises, L.L.C. (Landlord). For the reasons set forth below, we affirm. ¶2 Taylor, a United States Postal Carrier, was injured by a pit bull dog while he was attempting to deliver mail to the front door of a rental house. The pit bull dog shoved the glass storm door open from inside the house and jumped onto Taylor knocking him down. Taylor fractured his arm as a result of the fall. Taylor filed the instant suit against the tenants and Landlord for negligence. Taylor claimed Landlord negligently failed to maintain the storm door. Taylor alleged Landlord knew or should have known the storm door had a defective latch and Landlord failed to remedy the defect prior to this occurrence. Landlord denied Taylor’s 770

claims and moved for summary judgment. Landlord’s briefs in support of summary judgment specifically urged (1) it owed no duty to Taylor to safeguard him against a tenant’s dog; (2) the Oklahoma Housing Finance Agency Assisted Lease Agreement (Section 8 Lease) and additional leases prohibited dogs and Landlord had no knowledge that tenant was keeping a pit bull dog on the leased premises; and (3) Landlord had no duty to provide a storm door with lock because the property had a wood front door with a locking mechanism. ¶3 The trial court granted summary judgment to Landlord and certified the judgment for appeal pursuant to 12 O.S. 2001 §994. Taylor now appeals. This 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. ¶4 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., 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. ¶5 In order to state a cause of action for recovery under a negligence theory, the plaintiff must present evidence to show the existence of a duty, a subsequent breach of that duty, and an injury to the plaintiff proximately flowing from the breach of that duty. Lay v. Dworman, 1986 OK 85, ¶5, 732 P.2d 455, 458. In this case, summary judgment was granted to Landlord on the threshold element that Landlord did not owe a duty of care to Taylor. ¶6 In an Oklahoma dog bite case, an absentee landlord — who lacks knowledge of the tenant’s harboring of a vicious dog — cannot be held liable for negligence as the keeper or harborer of his tenant’s dog. Bishop By and Through Childers v. Carroll, 1994 OK CIV APP 37, 872 P.2d 407. We hold this legal principal logically extends to dog attack negligence cases. Notwithstanding this legal principle, Taylor con-

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tended Landlord still owed a duty of care to Taylor under the premises liability theory. Taylor argued under the lease agreements, Landlord had a duty to maintain the exterior door of the dwelling in operable condition. Taylor claimed Landlord breached this duty when it failed to repair the storm door and said breach resulted in the dog’s escape. Taylor urged a question of fact existed as to whether the defective door caused or contributed to Taylor’s injury.

parties from his tenant’s dog. Aggarwal also noted the lease prohibited tenants from keeping dogs on the premises absent the landlord’s permission, and there was no evidence suggesting that the tenants sought the landlord’s permission. Finding no evidence in the record to support an inference that the fence was intended to offer protection for the tenant or third parties, Aggarwal determined the undisputed evidence showed landlord owed no duty to protect or warn the plaintiff.

¶7 Recently, Division 1 of this Court decided a case with facts similar to the instant case. In Eastin v. Aggarwal, 2009 OK CIV APP 67, 218 P.3d 523, the Plaintiff sued the absentee landlords alleging they negligently maintained the fence surrounding their rental property and said dilapidated fence failed to secure a dog which attacked Plaintiff’s child and caused injuries. Based on the evidence presented, Aggarwal affirmed the trial court’s grant of summary judgment in favor of the landlord. Aggarwal reiterated:

¶10 Here, as in Aggarwal, Taylor has not provided any authority supporting his claim that Landlord had a duty to install or repair a secondary storm door. Furthermore, Taylor presented no evidence that the storm door was installed with the intent to protect third parties from the tenant’s dog. Taylor also failed to show that the lease agreements impose a duty upon landlords to install, maintain and repair secondary storm doors in addition to the existing exterior wood door with a locking mechanism or that such duty, if it existed, extended beyond the occupants of the dwelling to third parties. For the reasons discussed herein, we hold the trial court properly concluded Landlord owed no duty under the premises liability theory to repair the storm door latch to protect third parties from tenant’s dog.

Where the premises provided are inadequately secured due to ineffective or defective materials, a duty on the part of the landlord to provide repairs or modifications would arise upon notification of the defect by the tenant. This duty arises from the landlord-tenant contract and from the implication that the landlord is to provide services under the contract in a diligent manner. Aggarwal at ¶13, 218 P.3d at 528, quoting Dworman at ¶10, 732 P.2d at 458. ¶8 In Dworman, the tenant brought an action against the landlord for negligence when she was raped in her apartment. The Supreme Court held the landlord owed a duty to the tenant to make necessary repairs to a defective lock. That duty flowed from the landlord’s averred knowledge of criminal activities in the apartment complex and its knowledge of the tenant’s defective door. Aggarwal distinguished Dworman by pointing out the duty to provide a lock in good repair was owed by the landlord to the tenant pursuant to the lease contract. Dworman did not impose a duty upon a landlord to secure third parties from a tenant’s dangerous dog. ¶9 Aggarwal found no authority requiring an owner of real property to fence the yard. It further found there was no evidence creating a dispute as to whether the landlord undertook to repair the fence with the goal to protect third Vol. 81 — No. 8 — 3/20/2010

¶11 Because we hold summary judgment was properly granted to Landlord, we reject Taylor’s first and second propositions of error on appeal which challenge the timeliness and sufficiency of the record to support summary judgment. ¶12 AFFIRMED. JOPLIN, P.J., and MITCHELL, J., concur. 2010 OK CIV APP 22 DONALD P. GRIFFITH, Petitioner, v. UPS, INC.; LIBERTY INSURANCE CORP.; and THE WORKERS’ COMPENSATION COURT, Respondents. Case No. 106,706. November 13, 2009 PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT SUSTAINED J.L. Franks, Raymond L. Lahann, FRASIER, FRASIER & HICKMAN, Tulsa, Oklahoma, for Petitioner,

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James B. Cassody, McGIVERN, GILLIARD & CURTHOYS, Tulsa, Oklahoma, for Respondents. BAY MITCHELL, CHIEF JUDGE: ¶1 Petitioner Donald P. Griffith (Claimant) seeks review of an order of a three-judge panel of the Workers’ Compensation Court. The panel affirmed the trial court’s award of temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, and denial of Claimant’s request for additional compensation based upon actual loss of earning capacity. On review, Claimant contends the court erred in denying his claim for compensation for his loss of earning capacity. ¶2 Claimant is a 61-year-old, who worked for approximately 20 years as a route driver for UPS, Inc. (Employer). Claimant injured his neck, lumbar back and right hip as a result of a fall occurring on or about November 14, 2005.1 While Employer admitted Claimant sustained a single-event injury, it denied Claimant suffered permanent disability and denied the November 14th fall was the major cause of Claimant’s injuries. Employer additionally denied Claimant was entitled to additional compensation for loss of earning capacity. ¶3 Claimant received physical therapy, steroid injections and medication until he was released from medical care in February 2007. Claimant testified he was placed on a lifting restriction of 35 pounds. According to Claimant, UPS has a lifting requirement of up to 150 pounds, so he has been unable to return to UPS.2 ¶4 At trial, evidence was introduced concerning Claimant’s diminished earning capacity.3 A vocational expert, Kathy Bottroff,4 testified Claimant’s loss of future earning capacity is in the range of $170,00 to $204,244. Claimant argued his entitlement to an award of “damages” for this loss of earning capacity within the range of loss as opined by Ms. Bottroff, “separate and apart from the TTD issue”.5 ¶5 The Workers’ Compensation Court entered its order determining compensability, concluding Claimant’s work activities were “the major cause of his resulting injuries.” The trial court awarded fifty-one weeks of TTD. Additionally, Claimant was determined to have PPD to the neck, lumbar back and right hip. The trial court denied Claimant’s request for additional compensation or damages based upon his loss of earning capacity as testified to by Kathy Bottroff. 772

¶6 The issue presented for our consideration — the legality of the denial of benefits for Claimant’s loss of actual earning capacity — requires statutory construction. This is a question of law which we review de novo, meaning without deference to the trial court’s reasoning. Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶6, 16 P.3d 1120, 1123. This is in contrast to the anycompetent-evidence standard by which we review factual determinations. Parks v. Norman Mun. Hosp., 1984 OK 53, ¶12, 684 P.2d 548, 552. ¶7 Claimant contends the schedule of compensation found at 85 O.S. Supp. 2005 §22(3),6 constitutes statutory support for the award of “damages” for a claimant’s actual diminished earning capacity. Claimant urges a distorted construction of this statutory language in order to reach the conclusion that the trial court is to award compensation for an amount, separate and apart from the PPD award, based upon proof of diminished wage earning capacity. ¶8 Where a statute’s language is plain and unambiguous, no room exists for construction of its language. Oldham v. Drummond Bd. of Educ., 1975 OK 147, ¶9, 542 P.2d 1309, 1311. The plain meaning of a statute’s language is conclusive except in the rare case when literal construction would produce a result demonstrably at odds with legislative intent. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶13, 33 P.3d 302, 307. ¶9 While the statutory language permits consideration “of credible medical evidence that the ability of the employee to earn wages at the same level as before the injury has been permanently impaired,” this is clearly (and only) for the purpose of determining the “existence” of permanent disability.7 There is no way to reasonably construe the statute as mandating, or even allowing, an award of “damages” or compensation in addition to and/or separate from the PPD award. Additionally, under Oklahoma’s Workers’ Compensation scheme, injured employees are not entitled to recover damages as in a common-law action, but rather, The Workers’ Compensation Act is claimants’ exclusive remedy in place of all other liability of the employer. Noyce v. Ratliff Drilling Co., 1989 OK CIV APP 99, 790 P.2d 1129. Finally, while Claimant would have the court award him between $170,000 and $204,000 as an award separate and distinct from his PPD award, such an award is clearly and considerably in excess of the statutory limitations of compensation payments under the provisions

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of the Workers’ Compensation Act. See 85 O.S. Supp. 2005 §22(6).

9. See Blythe v. University of Oklahoma, 2003 OK 115, ¶11, 82 P.3d 1021, 1028 (rejecting the application of Rhode Island law in derogation of Oklahoma workers’ compensation statutory and case law).

¶10 As an alternative to his strained interpretation of §22, Claimant cites a Louisiana statute in support of his claim for additional damages for actual loss of earning capacity.8 Louisiana law, however, is neither controlling nor persuasive here.9

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¶11 The trial court correctly denied Claimant’s request for compensation based upon his actual loss of earning capacity. The panelapproved Order of the Workers’ Compensation Court is accordingly SUSTAINED.

SHERRY HAMBY, Petitioner, v. CHEROKEE NATION CASINOS, and the WORKERS’ COMPENSATION COURT, Respondents. Case No. 106,660. October 2, 2009 PROCEEDING TO REVIEW AN ORDER OF THE WORKERS’ COMPENSATION COURT HONORABLE MARY A. BLACK, TRIAL JUDGE SUSTAINED

HANSEN, P.J., and JOPLIN, J., concur. 1. While the trial court’s Order reflects the date of injury as November 14, 2005, the Claimant’s Form 3 indicates December 15, 2005 as the date of injury. Neither party to this appeal raises an issue regarding the date of injury. 2. After Claimant’s injury, he worked for Employer in a light duty capacity until December 27, 2005, when it was determined there was no longer light duty available. 3. At the time of Claimant’s injury, he was earning $26 per hour ($54,433 annually). 4. Kathy Bottroff is a licensed professional counselor and a certified rehabilitation counselor in Oklahoma. 5. THE COURT: Well, I -— basically what you’re saying is that, based upon her report, she finds how much loss of future earning capacity? Mr. Franks: The range would be 170,000 and some change to 204,000. THE COURT: All right. And you’re saying that that’s what the court ought to award him, is the actual amount of that loss of earning capacity, instead of a rating of — Mr. Franks: Permanent disability. THE COURT: Yes. Permanent disability of the injured body parts? Mr. Franks: Yes, sir. And that would also separate and — THE COURT: That’s really all I wanted you to say. Mr. Franks: It’s separate and apart from the TTD issue. Tr. at 27-28. It is not entirely clear whether at trial Claimant sought these “damages” in addition to PPD or in lieu thereof. While the hearing transcript suggests they were sought in lieu of the PPD award, Claimant’s brief on appeal indicates the amount sought is in addition to the PPD award. What is clear is the absence of citation to applicable Oklahoma authority supportive of such damages, however they were sought below. 6. §22(3)(d) provides in pertinent part: In all cases of soft tissue injury, the employee shall only be entitled to appropriate and necessary medical care and temporary total disability as set out in paragraph 2 of this section, unless there is objective medical evidence of a permanent anatomical abnormality. In determining the existence of such an abnormality, the Court may consider if there is credible medical evidence that the ability of the employee to earn wages at the same level as before the injury has been permanently impaired. (Emphasis added). 7. Findings regarding post-injury lost earning capacity are a basis for determining permanent disability. See e.g., Simpson Fell Oil Co. v. Tucker, 1932 OK 481, 12 P.2d 529. Further, findings as to earning capacity may be considered only as of the date of determination, as physical condition and earning capacity of the injured employee may thereafter change. Dennehy Const. Co. v. Kidd, 1943 OK 173, 137 P.2d 535. 8. Claimant’s Brief in Chief provides, “[t]his supplemental earning capacity as described in the Louisiana state code is the missing piece of the Oklahoma worker’s compensation system.” While inconsistent with Claimant’s primary argument that §22 mandates the additional award for actual loss of earning capacity, this statement serves as an effective acknowledgment of the absence of Oklahoma law in support of his claim.

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Lewis A. Berkowitz, BALLARD & BERKOWITZ, Oklahoma City, Oklahoma, for Petitioner Jay L. Jones, WALLS WALKER HARRIS & WOLFE, PLLC, Oklahoma City, Oklahoma, for Respondents KEITH RAPP, JUDGE: ¶1 The petitioner, Sherry Hamby (Claimant), appeals an Order Dismissing her Claim entered by the Workers’ Compensation Court (WCC), which ruled that the WCC did not have jurisdiction to hear an claim filed against Cherokee Nation Casinos (Employer).1 BACKGROUND ¶2 Claimant alleged that she sustained a work injury occurring as a result of her work on gambling machines in Employer’s casino. The parties stipulated:2 1. The Cherokee Nation is a federally recognized Indian tribe. 2. Cherokee Nation Enterprises is a wholly owned entity of the Cherokee Nation. 3. The Cherokee Nation has enacted its own workers’ compensation ordinances. 4. The Cherokee Nation has not expressly waived its sovereign immunity with regard to workers’ compensation. 5. The United States Congress has not waived the sovereign immunity of the Cherokee Nation for workers’ compensation purposes. ¶3 The trial court recited the stipulations in its Order Dismissing Claim. The court ruled that it did not have jurisdiction and dismissed the claim.

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¶4 Claimant appeals and assigns a single ground for reversal, “that Congress has waived the sovereign immunity of the Cherokee Nation for workers’ compensation.” Claimant’s Brief also adds the assertion that Employer enjoys no sovereign immunity because it was acting in a proprietary manner in the conduct of its gaming enterprise. STANDARD OF REVIEW ¶5 The issue of subject matter jurisdiction presents this Court with a question of law. Pales v. Cherokee Nation Enterprises, 2009 OK CIV APP 65, __ P.3d __; Hall v. Cherokee Nation, 2007 OK CIV APP 49, 162 P.3d 979. The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100 n.1. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court’s ruling. Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328. ANALYSIS AND REVIEW ¶6 Notwithstanding Claimant’s stipulations, her argument here is that Congress waived sovereign immunity when it extended state workers’ compensation laws to federal lands and Oklahoma accepted the authority. 40 U.S.C. § 290, now § 3172; 85 O.S.2001, § 4.3 Claimant cites Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir. 1982), as supporting the argument. However, Begay involved workers’ claims against a private employer, Kerr-McGee, and, therefore, is not applicable here. ¶7 The cases which address the issue hold that in the absence of an unequivocal expression of congressional intent to do so, Congress did not waive Indian tribe’s dependent sovereign immunity. This Court holds that Section 3172 does not operate to waive an Indian tribe’s sovereign immunity. Swatzell v. Industrial Comm’n, 277 P.2d 244 (Ariz. 1954); White Mountain Apache Tribe v. Industrial Comm’n of Arizona, 696 P.2d 223 (Ariz. Ct. App.1985); Tibbetts v. Leech Lake Reservation Business Committee, 397 N.W.2d 883 (Minn.1986); Middletown Rancheria of Pomo Indians v. W.C.A.B., 71 Cal. Rptr.2d 105 (Cal. Ct. App.,1998) (federal statute governing States’ jurisdiction over civil disputes involving native American Indians was not explicit congressional waiver of tribe’s sovereign immunity from state worker’s compensation liability.). 774

¶8 This Court’s conclusion is consistent with the general rules of statutory construction. “The fundamental rule for construction of a statute or ordinance is to ascertain and give effect to the legislative intent. That intent is to be ascertained from the text of the statute in light of its general purpose and object.” In Re: Deannexation of Certain Real Property From the City of Seminole, 2004 OK 60, ¶ 18, 102 P.3d 120, 129. Legislative intent controls statutory interpretation. Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each. The Court presumes that the Legislature expressed its intent and that it intended what it expressed. Statutes are interpreted to attain that purpose and end championing the broad public policy purposes underlying them. Only where the legislative intent cannot be ascertained from the statutory language, i.e. in cases of ambiguity or conflict, are rules of statutory construction employed. However, where the statutory language is ambiguous or uncertain, a construction is applied to avoid absurdities does not limit itself to the consideration of a single word or phrase. Rather, we look to the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent. Nevertheless, the plain and ordinary meaning of the language utilized is the standard for determining intent (emphasis added). World Publishing Co. v. Miller, 2001 OK 49, ¶ 7, 32 P.3d 829, 832. ¶9 Section 3172 is clear and unambiguous. In response to the contention that Congress has effectively waived the tribal sovereign immunity by enactment of the statute, the Minnesota Supreme Court held; That act simply cannot be read to confer upon states jurisdiction over otherwise immune or exempt parties. Not only does that result from a plain reading of the statute, but also from the act’s interpretive history as made, for example, by the Solicitor of the Department of Interior who concluded that the statute was never intended to apply to Indian tribes themselves. 1 Opinions of the Solicitor of the Department of Interior Relating to Indian Affairs 1917-1974, 692, 1044 (1974). The sole objective of the statute was to close a gap that prevented

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states from exercising workers’ compensation jurisdiction over work-related injury causing accidents occurring on federal lands. For example, following enactment of the statute, an Indian injured on an Indian reservation in the course of his employment by a non-Indian employer could maintain a workers’ compensation action against that employer under the state’s workers’ compensation law, and the employer could not raise the fact the accident occurred on federal land as a defense. Tibbetts, 397 N.W.2d at 887-88. ¶10 Claimant next asserts that there is no immunity because the Employer acted in a proprietary capacity. This argument is contrary to Stipulation No. 4 and therefore precluded.4 ¶11 In any event the “proprietary” - “governmental” distinction appears to have no application in cases involving Indian tribes and workers’ compensation cases. As a matter of federal law, before an Indian tribe is subject to suit Congress must authorize the suit or the tribe must waive its immunity. Indian tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 523 U.S. 751, 118 S. Ct. 1700; see Bittle v. Bahe, 2008 OK 10, 192 P.3d 810.5 ¶12 Therefore, the Order Dismissing Claim is sustained. ¶13 SUSTAINED. GABBARD, P.J., and FISCHER, J., concur. 1. The entity is referred to in testimony as Cherokee Nation Enterprises. Tr. p. 45. 2. Tr. p. 7. The parties also presented evidence regarding the occurrence and nature of he injury and whether Employer received notice. The trial court did not rule on these issues because it dismissed the claim on jurisdictional grounds. 3. Section 3172 reads: a) Authorization of extension. — The state authority charged with enforcing and requiring compliance with the state workers’ compensation laws and with the orders, decisions, and awards of the authority may apply the laws to all land and premises in the State which the Federal Government owns or holds by deed or act of cession, and to all projects, buildings, constructions, improvements, and property in the State and belonging to the Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State in which the land, premises projects, buildings, constructions, improvement, or property are located. (b) Limitation on relinquishing jurisdiction. — The Government under this section does not relinquish its jurisdiction for any other purpose. (c) Nonapplication. — This section does not modify or amend subchapter I of chapter 81 of title 5. Section 4 reads, in part: The State of Oklahoma accepts the provisions of the Acts of Congress designated as Public Law No. 814, 49 Statutes 1938, and

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hereby extends the territorial jurisdiction of the Workers’ Compensation Act of this state to all lands and premises owned or held by the Government of the United States of America, by deed or act of cession, by purchase or otherwise, which are within the exterior boundaries of this state, and to all purchases, buildings, constructions, improvements or property belonging to the Government of the United States of America, which are within the exterior boundaries of this state, in the same manner and to the same extent as if said premises were under the exclusive jurisdiction of the State of Oklahoma, subject only to the limitations placed thereon by the Act of Congress 4. An amendment to the petition-in-error would not cure the problem because the issue was not preserved in the trial court record. Rule 1.17, Rules of Appellate Procedure in Civil Cases, 12 O.S. 2001, ch. 15, app. 2, provides in pertinent part: “. . . The petition in error may be amended at any time before brief in chief is filed, or thereafter by leave of court, to include any error or any issues presented to and resolved by the trial court which is supported by the record . .” (Emphasis added.) 5. The Court there extensively reviewed the status and history of immunity in the context of the sale of alcoholic beverages.

2010 OK CIV APP 23 O’BRIEN OIL, L.L.C., Plaintiff/Appellee, v. JOHN W. NORMAN; CECILIA A. NORMAN; RANDALL A. MOCK, TRUSTEE OF THE NORMAN CHILDREN 1985 IRREVOCABLE TRUST, Defendants/ Appellants. Case No. 107,001. January 22, 2010 APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY, OKLAHOMA HONORABLE DONALD L. WORTHINGTON, JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED Jeff L. Hirzel, William, Hirzel & Hurst, Guthrie, Oklahoma, James R. Waldo, Mock, Schwabe, Waldo, Elder, Reeves & Bryant, Oklahoma City, Oklahoma, for Appellants, Tim W. Green, Guthrie, Oklahoma, for Appellee. Larry Joplin, Judge: ¶1 Defendants/Appellants, John W. Norman, Cecilia A. Norman, and Randall A. Mock, Trustee of the Norman Children 1985 Irrevocable Trust (Landowners), seek review of the trial court’s order granting judgment to Plaintiff/ Appellee, O’Brien Oil, L.L.C. (Lessee), on its request for a judgment declaring its right to use an abandoned wellbore located on Landowners’ surface estate. In this accelerated review proceeding, Landowners challenge the order as affected by errors of both law and fact. ¶2 In 1983, a prior lessee of minerals underlying a 40 acre drilling and spacing unit in Section 33, T16N, R3W, I.M., Logan County, Oklahoma, drilled the Theodore No. 1 well in the SE/4 SE/4 of Section 33, and set casing to a

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depth of four hundred forty feet. The lessee subsequently abandoned and plugged the well-bore with cement, leaving the casing in place. In 1989, Landowners acquired the surface estate. ¶3 Lessee now holds valid leases of the minerals underlying Landowners’ surface estate. Lessee proposed additional mineral exploration by re-entry through the existing plugged casing of the Theodore No. 1 well, and offered Landowners compensation for both use of the wellbore and surface damages. When Landowners rejected Lessee’s proposal, Lessee applied for and obtained from the Oklahoma Corporation Commission a Permit to Re-Enter the plugged well. When Landowners objected to Lessee’s operations, Lessee commenced the instant action for declaratory judgment. ¶4 Lessee subsequently filed a motion for summary judgment, and argued that its permit to re-enter specifically allowed its use of the plugged Theodore No. 1 wellbore. Lessee also argued that, by virtue of the existing order of the Corporation Commission establishing a 40acre drilling and spacing unit, and location of the plugged Theodore No. 1 well at a permitted place within the drilling and spacing unit, it was entitled to use of so much of the surface estate, including the abandoned Theodore No. 1 wellbore, as was reasonable for mineral exploration. ¶5 Landowners objected and filed a countermotion for summary judgment. Landowners asserted that they owned the abandoned Theodore No. 1 wellbore and casing, and that Lessee obtained its Permit to Re-enter without notice to them. Landowners further asserted that their surface estate (including the wellbore and casing) was not subject to Lessee’s private taking without their consent, or that, at the very least, Lessee should be required to compensate them for its use. Landowners also set up a counterclaim against Lessee for surface damages, and alleged the existence of another action pending between the same parties concerning the same surface damages. ¶6 Upon consideration of the parties’ submissions and arguments, the trial court granted the motion for summary judgment of Lessee, denied the motion for summary judgment of Landowners, and dismissed the remaining claims, holding: 1. The Corporation Commission of the State of Oklahoma has oversight and regu776

latory authority of the drilling and plugging of oil and gas wells in the State of Oklahoma. 2. The Theodore No. 1 well was plugged pursuant to regulations of the Corporation Commission and its official Plugging Record entered on June 11, 1983. 3. Upon plugging and abandonment of the Theodore No. 1 well the 441 feet of surface casing was affixed to and became a part of the surface realty. 4. The Corporation Commission has issued to Plaintiff its “Permit to Re-enter” the Theodore No. 1 well and to utilize the bore hole in its drilling operations to a depth of 6,350 feet, including the 441 feet of surface casing. 5. The owners of the oil, gas and other mineral rights have the right to use so much of the surface realty as is reasonably necessary to explore, produce and market such oil, gas and other minerals. 6. The use of the bore hole of the Theodore No. 1 well in Plaintiff’s oil and gas operations reasonably requires the use of the 441 feet of surface casing which is a part of the surface realty. 7. The matters of surface damages, if any, by virtue of Plaintiff’s operations on the land are better addressed in case number CV-2008-17 brought under the Surface Damages Act pending in this court and Defendants’ Motion to Dismiss Plaintiff’s second cause of action in this case should be sustained, the second cause of action dismissed and Defendants’ counter-claim in this case dismissed. Landowners appeal, and the matter stands submitted on the trial court record.1 I. Standard of Review ¶7 “Summary relief issues stand before us for de novo review[,] [and] [a]ll facts and inferences must be viewed in the light most favorable to the non-movant.” Reeds v. Walker, 2006 OK 43, ¶9, 157 P.3d 100, 106-107. (Footnotes omitted.) “Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963-964. (Citations omit-

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ted.) “Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclusions from the undisputed material facts.” Id.

owners now also own the casing of the Theodore No. 1 well as part of their surface estate. 2. Wellbore

A. Ownership of the Casing and Wellbore

¶12 “The owner of land in fee has the right to the surface and to everything permanently situated beneath or above it.” 60 O.S. 2001 §64; Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority, 1994 OK 20, ¶30, 896 P.2d 503, 515516, fn. 83. In considering the issue of the ownership of an abandoned wellbore, the Oklahoma Supreme Court held over sixty-five years ago that the owner of the surface also owned an abandoned wellbore on the land. Sunray Oil Co. v. Cortez Oil Co., 1941 OK 77, ¶30, 112 P.2d 792, 795. Landowners own the plugged and abandoned wellbore of the Theodore No. 1 well.

1. Casing

B. Right to Use the Casing and Wellbore

¶9 “[C]asing in wells, derricks, engines and other machinery placed upon the land by the lessee for developing and operating the land for oil and gas purposes are considered trade fixtures.” Garr-Woolley v. Martin, 1978 OK CIV APP 11, ¶10, 579 P.2d 206, 208-209; Luttrell v. Parker Drilling Co., 1959 OK 29, ¶11, 341 P.2d 244, 246. Upon expiration of a mineral lease, the lessee is granted a reasonable time to remove the casing, equipment and machinery used in the production of oil or gas. Garr- Woolley, 1978 OK CIV APP 11, ¶¶10-11, 579 P.2d at 208-209; Luttrell, 1959 OK 29, ¶11, 341 P.2d at 246. See also, 4 Kuntz, A Treatise On The Law Of Oil And Gas, §50.3 (Matthew Bender 1972); 4 Williams & Meyers, Oil And Gas Law, §674.2 (Matthew Bender 2007).

¶13 In this appeal, Landowners first assert the Corporation Commission’s order is entirely silent as to the use of the Theodore No. 1 casing, and consequently, grants no such rights to Lessee. Landowners secondly assert the Corporation Commission has no jurisdiction to determine title to real property, and the Permit to Re-Enter, allowing use of their casing, constitutes an impermissible determination of title. Landowners lastly assert Lessee’s use of their casing, without their consent, amounts to an unconstitutional private taking of their property under the Oklahoma Constitution, art. II, §23.

II. Issues on Appeal ¶8 This appeal presents three issues concerning (1) Lessee’s right to re-enter the well bore, if any, pursuant to the order of the Corporation Commission, as against (2) Landowners’ ownership of the casing and wellbore, and (3) their right to compensation, if any, for its use. From our review of the authorities, it appears the first and second issues have been settled, but the third has not.

¶10 However, “oil and gas equipment left on the landowner’s property for an unreasonable length of time after the termination of the lease will become the landowner’s property.” GarrWoolley, 1978 OK CIV APP 11, ¶12, 579 P.2d 206, 208-209. “Oil well casings are trade fixtures,” and, because “[c]asings, as objects ‘imbedded’ in land, are by statutory definition real property,” “when the casing is not removed by the lessee within a reasonable time, it becomes property of the landowner.” Gutierrez v. Davis, 618 F.2d 700, 702 (10th Cir. (Okla.) 1980). ¶11 The casing of the Theodore No. 1 well clearly became a part of the surface estate upon the lessee’s failure to remove it within a reasonable time after logging the Theodore No. 1 well in 1983. Landowners acquired the surface estate in 1989. As owners of the surface estate, LandVol. 81 — No. 8 — 3/20/2010

1. Taking of Private Property ¶14 Article II, §23 of the Oklahoma Constitution absolutely proscribes the taking or damage of private property “for private use, with or without compensation, unless by consent of the owner.” So, Landowners argue, absent their express consent, Lessee is not permitted to use any of Landowners’ property in the course of its mineral exploration. ¶15 However, the owner of the surface has no standing to object to the unitized development of the underlying mineral resources. Turley v. Flag-Redfern Oil Co., 1989 OK 144, 782 P.2d 130. The owner of the surface cannot prevent the drilling of a well at the site chosen by the operator and approved by the Corporation Commission. See, McDaniel v. Moyer, 1983 OK 39, ¶13, 662 P.2d 309, 313. ¶16 Ultimately, the regulation of the unitized management and development of oil and gas properties within this state constitutes a valid exercise of the state’s police powers, and orders

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of the Corporation Commission dictating the unitized management and development of oil and gas properties within this state, commensurate with state law, do not violate the Oklahoma constitutional provisions relating to due process or the taking of private property. Jones Oil Co. v. Corporation Commission, 1963 OK 116, 382 P.2d 751; Woody v. State Corp. Com’n, 1954 OK 14, 265 P.2d 1102; Palmer Oil Corp. v. Phillips Petroleum Co., 1951 OK 78, 231 P.2d 997. ¶17 Consequently, Landowners have not suffered, and will not suffer, any unconstitutional taking of their property as a result of Lessee’s mineral operations. The parties do not dispute that the location described in the Permit to ReEnter describes the Theodore No. 1 well. The well is located at a permitted place within the drilling and spacing unit, and Landowners cannot prevent Lessee’s re-entry into the abandoned wellbore pursuant to the Permit to ReEnter granted by the Corporation Commission. The Permit to Re-Enter does not determine title to Landowners’ property, and expressly disclaims any adjudication of surface damages. C. Right to Compensation ¶18 That said, however, the question of Landowners’ right to compensation for use of the wellbore and casing remains unsettled. See, McDaniel, 1983 OK 39, ¶16, 662 P.2d at 313, fn. 13.2 As we hereinafter explain, we hold Landowners’ right to compensation for use of the abandoned wellbore should be determined under the Surface Damages Act, but their right to compensation for use of the casing should be measured by the rental value of the casing. 1. Use of the Surface Estate ¶19 At common law, and prior to the adoption of the Surface Damages Act, 52 O.S. Supp. 1982 §§318.2-318.93: [I]n the absence of a contractual provision in the oil and gas lease providing otherwise, an oil and gas operator was liable for surface damage only if such damage resulted from wanton or negligent operations or if the operations affected more than a reasonable area of the surface. In other words, the operator would not be liable for surface damage resulting from the “reasonable” use of the surface which was necessary to the oil and gas operations. Houck v. Hold Oil Corp., 1993 OK 166, ¶11, 867 P.2d 451, 456. (Citations omitted.) With the 778

adoption of the SDA, the Oklahoma Legislature mandated the prompt payment of compensation of a surface owner whose land is taken for oil and gas exploration to balance the competing needs of the surface owners and owners of minerals: It cannot be said that the surface of the land constitutes a less vital resource to the State of Oklahoma than does the mineral wealth which underlies it. The surface supports development for business, industrial and residential purposes. It also supports our vital agricultural industry. The passage of the surface damages act guarantees that the development of [the oil and gas] industry is not undertaken at the expense of [our vital agricultural industry] when the vitality of both is of great consequence to the well-being of our economy. In times when both the agricultural and oil and gas segments of our economy are suffering it is especially important that such legislation is enforced. Davis Oil Co. v. Cloud, 1986 OK 73, ¶16, 766 P.2d 1347, 1351. See also, YDF, Inc. v. Schlumar, Inc., 2006 OK 32, ¶10, 136 P.3d 656, 659. ¶20 The SDA constitutes the sole authority for the award of damages to the surface estate resulting from mineral operations. Turley, 1989 OK 144, ¶22, 782 P.2d at 135-136. Stated otherwise: [I]nsofar as a surface owner has a protected interest when an oil and gas operator enters to drill a well for oil and gas purposes, the Oklahoma Surface Damages Act, 52 O.S. §§ 318.2-318.9, provides an adequate remedy for any “taking” of the surface owner’s interest. .... To the extent that the Oklahoma Surface Damages Act created a protected right for any “taking” of the surface owner’s property, it simultaneously created an adequate remedy for said “taking.” Turley v. Mewbourne Oil Co., 715 F.Supp. 1052, 1053, 1056 (W.D. Okla. 1989). 2. Measure of Damages Under the Surface Damages Act a. Wellbore ¶21 The SDA permits the recovery of damages “which the surface owner has sustained or will sustain by reason of entry upon the sub-

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ject land and by reason of drilling or maintenance of oil or gas production on the subject tract of land.” Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶6, 64 P.3d 1113, 1115. (Emphasis added.) “[T]he damage standard . . . under the Act is the diminution in the fair market value of the surface property resulting from the drilling and maintenance operations.” Id.; Davis Oil Co., 1986 OK 73, ¶22, 766 P.2d at 1352.

¶25 Under these authorities, Oklahoma law clearly measures the value of casing in place as its reasonable rental value, not by its diminished market value as under the SDA. Landowners are consequently entitled to reasonable compensation for the use of the casing, measured by its reasonable rental value.

¶22 Under the SDA, Landowners are clearly entitled to recover damages for any temporary or permanent damage to their surface estate which they have sustained or will sustain by reason of the entry upon their property and the drilling or maintenance of an oil or gas well, measured by the diminution of the fair market value of the surface property resulting from those operations. The wellbore is part of Landowners’ surface estate, and the compensation to which they may be entitled for use of the wellbore must be determined under the SDA, not by reference to the value of the wellbore to Lessee, but by the diminution of the surface estate’s fair market value. The extent to which the fair market value of the surface estate is diminished by Lessee’s re-entry is a question to be addressed in the SDA action pending between the parties.

¶26 On the issue of Landowners’ claim to compensation for use of the casing and wellbore, the trial court denied Landowners’ motion for summary judgment. In this, we hold the trial court erred. That part of the trial court’s order is consequently REVERSED, and the cause REMANDED for further proceedings. In all other respects, the order of the trial court is AFFIRMED.

b. Casing ¶23 The measure of damages for use of the casing is different. The Texas courts measure recovery for the use of casing as the difference between the value of the casing in place less the cost of removal. Fike v. Riddle, 677 S.W.2d 722, 724 (Tex. App. 1984); Eubank v. Twin Mountain Oil Corp., 406 S.W.2d 789, 792 (Tex. Civ. App. 1966). The Wyoming Supreme Court has held that, when the owner of casing is prevented from removing his casing from a well, the owner of casing may be entitled to the reasonable rental value of the casing so long as the well remains capable of producing in paying quantities. Champion Ventures, Inc. v. Dunn, 593 P.2d 832, 834 (Wyo. 1979). ¶24 Oklahoma uses the measure of rental value. In Okmulgee Supply Corp. v. Anthis, 1940 OK 428, 114 P.2d 451, the Oklahoma Supreme Court held that, because the removal of the casing would destroy the producing well, and the purchaser of the casing could not, under that circumstance, extract the casing, the owner of the casing was entitled, as a matter of equity, to the reasonable rental value of the casing. 1940 OK 428, ¶8, 114 P.2d at 453. Vol. 81 — No. 8 — 3/20/2010

III. Conclusion

BELL, V.C.J., and MITCHELL, J., concur. 1. See, Rule 13(h), Rules for District Courts, 12 O.S. 2001, Ch. 2, App.; Ok.S.Ct.R. 1.36, 12 O.S. 2001, Ch. 15, App. 2. “The landowners’ ownership of the bore hole has never been a controverted issue here. The real issue in dispute was whether the operator was entitled to an uncompensated use of the bore hole. That legal issue could not be litigated as a defense to an injunction suit absent some compelling equitable considerations. Short of an emergency, an injunction suit cannot be used to litigate title to property or property rights or for the purpose of transferring possession from one party to another. Montgomery v. Coleman-Nelson Gasoline Co., 130 Okl. 14, 264 P. 895 [1928]; Mid-Continent Pipe Line Company v. Emerson, Okl., 396 P.2d 734, 736 [1964].” 3. Eff. July 1, 1982.

2010 OK CIV APP 24 In the Matter of the Estates of Bartley Joh David McLean and Beulah Simpson McLean, same person as Beulah S. McClean, both deceased: JOHN L. BRANSON, JEFFREY BRANSON, and JIMMIE KAY WILLIAMS, Appellants, v. JAEL McLEAN, MARCUS TYE McLEAN, and JAIME CAROL McLEAN, Appellees. Case No. 106,200. December 4, 2009 APPEAL FROM THE DISTRICT COURT OF ROGER MILLS COUNTY, OKLAHOMA HONORABLE GALE F. SMITH, JUDGE AFFIRMED Doug Friesen, Oklahoma City, Oklahoma, for Appellants, Thomas B. Goodwin, Cheyenne, Oklahoma, for Appellee Jael McLean, Thomas S. Ivester, Ivester, Ivester, & Invester, Sayre, Oklahoma, for Appellees Marcus Tye McLean, and Jaime Carol McLean.

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Larry Joplin, Judge: ¶1 Appellants John L. Branson, Jeffrey Branson, and Jimmie Kay Williams (individually, by name, or collectively, Appellants) seek review of the trial court’s order determining Appellees Jael McLean, Marcus Tye McLean, and Jaime Carol McLean (Appellees) to be sole and only heirs of Bartley John David McLean, Deceased, the pretermitted heir of Beulah Simpson McLean, Deceased. In this proceeding, Appellants challenge the trial court’s refusal to admit evidence of the intentional omission of Bartley from Beulah’s Will. ¶2 Beulah Simpson McLean had two children, a daughter and a son, Bartley John David McLean. Beulah’s daughter (and her child) died in an automobile accident sometime prior to 1988. ¶3 In 1988, Beulah, a Texas resident, executed her Last Will and Testament in Texas. In her Will, Beulah devised all of her estate to her nephew John L. Branson, nephew Jerry L. Branson, and Jimmie Kay Williams, in equal shares, and, if any beneficiary predeceased her, devised “the share of my estate which he or she would have received to his or her children who survive[d]” her.1 Beulah did not mention Bartley. ¶4 Bartley died in 2000, survived by three children, Appellees Jael McLean, Marcus Tye McLean, and Jaime Carol McLean. Beulah died in 2002. At the time of her death, Beulah owned the surface and a fraction of the minerals underlying one hundred sixty (160) acres of real property in Roger Mills County, Oklahoma. ¶5 In 2006, nephew John L. Branson filed his Petition for Probate of Beulah’s Will in the trial court.2 Over John L. Branson’s objection, the trial court held that, prior to her death, Beulah owned a fractional interest in the minerals underlying the Roger Mills County property, and Beulah validly conveyed one-half of her interest in the surface of the Roger Mills County property to her son, Bartley.3 ¶6 Appellees subsequently filed their Applications to Share in Beulah’s estate as the children of her omitted son, Bartley, and Beulah’s sole and only heirs at law. Appellants objected. To the objection, Appellants attached an order of a Texas District Court severing the relationship between Beulah and Bartley with Jael McLean.4 780

¶7 At the hearing on Appellees’ claim and Appellants’ objection, Appellants offered a videotape of Beulah during her initial interview with the Texas attorney who drafted her Will. By offer of proof, Appellants said the tape reflected Beulah’s intentional omission of Bartley from her Will, and that the tape was admissible under Texas law, the law in effect where Beulah made her Will. Appellees responded, arguing Beulah did not express her intentional omission of Bartley in her Will, and, under Oklahoma law, absent any ambiguity in the Will, extrinsic evidence was inadmissible to show such intent. ¶8 On consideration of the parties’ arguments, the trial court held: . . . . Beulah . . . omitted to provide in her will for her son, Bartley . . . , who predeceased her leaving [Appellees] as his sole and only issue. [T]he omission by Beulah . . . to provide for her son does not appear from the four corners of her Will to have been intentional. There is no ambiguity in the text of the Will and insufficient evidence of latent ambiguity to warrant resort to extrinsic evidence to establish intent. The children of the son of Beulah . . . are pretermitted heirs entitled to intestate shares of her Oklahoma estate. The trial court accordingly awarded Beulah’s Oklahoma property to Appellees in equal shares. Appellants appeal. ¶9 “Probate proceedings are of equitable cognizance.” In the Matter of the Estate of Holcomb, 2002 OK 90, ¶8, 63 P.3d 9, 13. (Footnotes omitted.) “While an appellate court will examine and weigh the record proof, it must abide by the law’s presumption that the nisi prius decision is legally correct and cannot be disturbed unless found to be clearly contrary to the weight of the evidence or to some governing principle of law.” Id. (Emphasis original.) “If legally correct, a district court’s ruling will not be reversed because of its faulty reasoning, erroneous finding of fact or its consideration of an immaterial issue.” ¶10 Section 132 of title 84, O.S. 2001, provides: When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child,

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or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, . . . . Section 152 of title 84, O.S. 2001, provides: In case of uncertainty, arising upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations. (Emphasis added.) ¶11 Relevant to this appeal, the Oklahoma Supreme Court has consistently held: Title 84 O.S. 1991 §132 provides that if a testator fails to provide for the issue of a deceased child, the grandchild shall share in the estate as if the testator had died intestate. The purpose of §132 is to protect an issue’s right to take unless the will itself gives a clear expression of an intentional omission. In interpreting §132, we have consistently held that the intent to disinherit an heir must appear upon the face of the will in strong and convincing language.… In the Matter of the Estate of Hoobler, 1996 OK 56, ¶8, 925 P.2d 13, 17. Accord, In the Matter of the Estate of Woodward, 1991 OK 25, ¶5, 807 P.2d 262, 264. Moreover: . . . . A latent ambiguity will arise from a fact or circumstance extraneous to the text which renders the meaning uncertain. [Wh]ere there is no ambiguity but only silence . . . the law’s command has supplied its own answer. The pretermittedheir statute superimposes itself upon the silent will to establish heirship in the protected person. The status once so created by force of law cannot be erased by parol. The needed intent for the heir’s omission cannot come dehors the will from sources not testamentary in character. Crump’s Estate v. Freeman, 1980 OK 80, ¶4, 614 P.2d 1096, 1098. “Parol evidence was not allowed to show the testator’s intent to disinherit his granddaughter in Crump.” In the Matter of the Estate of Flowers, 1993 OK 19, ¶13, 848 P.2d 1146, 1152. ¶12 In Estate of Flowers, testatrix and her husband adopted a girl and a boy, biological sibVol. 81 — No. 8 — 3/20/2010

lings. 1993 OK 19, ¶2, 848 P.2d at 1148-49. Four years later, the Okfuskee County Court declared the girl delinquent on petition by testatrix’s husband, and the girl was committed to foster care. Id. Testatrix and her husband relinquished their parental rights to the girl, and “the court’s order provide[d] that they were released from all further liabilities and responsibilities as [the girl’s] parents.” Id. ¶13 Testatrix later executed her Last Will and Testament without mention of the girl, the trial court held the girl was a pretermitted heir entitled to share in testatrix’s estate, and the Court of Appeals affirmed. Estate of Flowers, 1993 OK 19, ¶4, 848 P.2d at 1148-49. The Supreme Court granted further review, holding that, “[b]ecause [testatrix] died after the enactment of the Adoption Act abolishing all differences between natural and adopted children and because the . . . termination of [her] parental rights [under Oklahoma law did] not affect [the girl’s] right to inherit from its parent, [she] qualifie[d] as a pretermitted heir under 84 O.S. 1991 §132.” Estate of Flowers, 1993 OK 19, ¶15, 848 P.2d at 1151. However, the Supreme Court also held: The instant cause is similar to Crump in that the entire estate was given to [testatrix’s] sisters in the will. The cause differs in that there is an extraneous fact making the will ambiguous — the termination order, duly filed in a court of record and admitted by the trial court. The very existence of this order raises questions concerning [testatrix’s] intent. If [testatrix] thought the termination order ended any relationship between [her] and [the girl], the failure to mention [the girl] in the will may well have been intentional. If she believed that some familial relationship continued to exist, did [testatrix’s] stated intent to disinherit her adopted son and his ‘kin’ coupled with the false statement that she had only an adopted son create an ambiguity within the will? The intention of the testator is controlling; when the Court construes a will, it must ascertain and give effect to the testator’s intent, unless the intent attempts to effect what the law forbids. Here, the termination order makes the admission of extrinsic evidence necessary to determine intent. We find that the existence of the termination order is an extraneous fact rendering the testatrix’s

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will ambiguous. Parole evidence is admissible to ascertain the adoptive mother’s intent. Estate of Flowers, 1993 OK 19, ¶14, 848 P.2d at 1152. The Supreme Court consequently reversed the order of the trial court and remanded for further proceedings. Estate of Flowers, 1993 OK 19, ¶16, 848 P.2d at 1152-53. ¶14 We distinguish Estate of Flowers from the present case. In Estate of Flowers, the parent/ child relationship between the testatrix and the omitted child had been terminated by an order admitted into evidence by the trial court. In the present case, and solely according to an offer of proof, only the relationship of Bartley’s child to her grandmother, testatrix Beulah, and her father, Bartley, had been terminated, not the parent/child relationship of the testatrix, Beulah, and the omitted child, Bartley. The order terminating the relationship of Beulah and Bartley to the grandchild, Appellee Jael McLean, consequently creates no ambiguity in Beulah’s Will concerning Bartley’s omission as to justify, under Oklahoma law, the admission of the extrinsic evidence of the video tape purportedly establishing Beulah’s intent to disinherit Bartley. ¶15 Furthermore: Except as otherwise provided, the validity and interpretation of wills is governed, when relating to real property within this state, by the law of this state; when relating to personal property, by the law of the testator’s domicile. 84 O.S. 2001 §20. (Emphasis added.) See also, 16 Am. Jur. 2d, Conflict Of Laws, §61.5 So, Oklahoma law controls the devise of Oklahoma realty by a non-resident testator. Dean v. Moore, 1962 OK 177, ¶3, 380 P.2d 934, 9356; In re Adams’ Estate, 1950 OK 201, ¶6, 222 P.2d 366, 3687; Bacus v. Burns, 1915 OK 401, ¶¶8-9, 149 P. 1115, 1116.8 The law of the state where real property is located also governs the determination of the rights of a pretermitted child. See, e.g., Price v. Johnson, 428 P.2d 978, 981 (N.M. 1967); Crossett Lumber Co. v. Files, 149 S.W. 908, 910-911 (Ark. 1912). ¶16 Under the Texas pretermitted-heir statute, extrinsic evidence may be admissible to show an heir’s omission by “accident” or “mistake.” V.A.T.S. Probate Code, §67; Estate of Gorski v. Welch, 993 S.W.2d 298, 304-305 (Tex.App. 782

— San Antonio 1999). In Oklahoma, however, “[t]he needed intent for the heir’s omission cannot come dehors the will from sources not testamentary in character,” because “[o]ur pretermitted-heir statute, which makes no reference to ‘accident’ or ‘mistake’[,] . . . confine[s] judicial inquiry to a search for the expressed testatorial intention to omit one’s protected heir.” 84 O.S. §132; Crump’s Estate, 1980 OK 80, ¶4, 614 P.2d at 1097-1098.9 ¶17 Because there is no patent ambiguity on the face of Beulah’s will, the only circumstance in which extrinsic evidence might be admitted is if some latent ambiguity appears within the will’s four corners. Appellants here argue that, because extrinsic evidence is admissible in the state where the will was executed (Texas), but not in the state where the real property is located (Oklahoma), Beulah’s will is latently ambiguous. ¶18 However, in our view, the fact that extrinsic evidence may or may not be admissible does not create some latent ambiguity justifying the admission of extrinsic evidence in this case. By force of 84 O.S. §20, the validity and interpretation of Beulah’s will, as it relates to the disposition of her Oklahoma real property, is governed by Oklahoma law. As to her Oklahoma real property, Oklahoma law also governs the determination of the rights of any pretermitted heirs pursuant to 84 O.S. §132. Under Oklahoma law, §132, “[t]he needed intent for the heir’s omission cannot come dehors the will from sources not testamentary in character.” Crump’s Estate, 1980 OK 80, ¶4, 614 P.2d at 1098. ¶19 The potential admissibility of evidence in one state, by itself, does not create a latent ambiguity in a will justifying the admission of extrinsic evidence. In Oklahoma, one must examine the nature of the evidence itself to determine its admissibility. ¶20 The video tape was not referred to or incorporated in Beulah’s will. The video tape does not appear to have been acknowledged in the manner of self-proving testamentary documents. The tape stands outside the will and is not a “source testamentary in character.” Under Oklahoma law, the video tape is inadmissible to demonstrate Beulah’s intentional omission of Bartley. ¶21 Beulah failed to clearly express her intent to disinherit Bartley in her Will. Under §132,

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Beulah is deemed to have died intestate as to Bartley, and Bartley is Beulah’s pretermitted heir. Bartley’s surviving offspring are consequently Beulah’s sole and only heirs at law. The trial court did not err in so holding. ¶22 The order of the trial court is AFFIRMED. MITCHELL, C.J., concurs; HANSEN, P.J., dissents. 1. Nephew/Devisee Jerry L. Branson predeceased Beulah, but was survived by a son, Appellant Jeffrey Branson. 2. Nephew John L. Branson was appointed administrator of Beulah’s Texas estate in the District Court of Hutchinson County, Texas. 3. By unpublished opinion, the Court of Civil Appeals affirmed the trial court’s judgment. In the Matter of the Estates of Bartley John David McLean and Beulah Simpson McLean, Case No. 103,963 (Ok. Civ. App. Div. III, March 21, 2008) ( Petition for Certiorari denied as untimely filed, May 19, 2008) (Petition for Rehearing denied, June 16, 2008). 4. The order appears to have been obtained by Jael’s mother shortly after her divorce from Bartley when Jael was about two years old. 5. “In general, all questions arising under wills in regard to real property are referred to the lex rei sitae. That is, the testamentary disposition of real property is governed by the laws of its situs. . . .” 6. “The residuary estate under consideration consists only of real property located within Oklahoma. Therefore, the fact that testatrix was domiciled in Arkansas has no bearing on our decision. This is true because of the provisions of 84 O.S.1961 § 20: ‘Except as otherwise provided, the validity and interpretation of wills is governed, when relating to real property within this State, by the law of this State; when relating to personal property, by the law of testator’s domicile.’ We held in In re Adams’ Estate, 203 Okl. 377, 222 P.2d 366; and in Bacus v. Burns, 48 Okl. 285, 149 P. 1115; that, as to the interpretation of a devise by will of real estate lying within Oklahoma, the law of Oklahoma must govern.” 7. “The first question presented is whether the interpretation of the will is to be governed by the law of Texas, the domicile of the testators, or that of Oklahoma, where lies the real estate involved. This question is not an open one because foreclosed by statute, Tit. 84 O.S. 1941 §20. The statute was construed in Bacus v. Burns, 48 Okl. 285, 149 P. 1115.” 8. “It is conceded that the testator was a resident of Kansas at the time the will was made, and that the same was properly executed under the laws of that state. This being true, it is entitled to probate under the laws of this state under section 8351, Rev. Laws 1910, which is as follows: ‘A will, . . . , made out of this state by a person not having his domicile in this state, is as valid when executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, as if it were made in this state, and according to the provisions of this article.’ Its interpretation, however, so far as the same relates to real estate located in this state, is governed by the laws of this state. Section 8336, Rev. Laws 1910.” 9. “Two different approaches to the problem of an heir’s omission from his ancestor’s will are identified in national legal literature by reference to the Massachusetts and Missouri prototype statutes. The Missouri-type solution benefits children ‘not named or provided’ for in the will, whereas Massachusetts makes superimposition of heirship status subject to the qualifying phrase ‘unless it shall appear that such omission was intentional and not occasioned by any mistake or accident.’ Under a Massachusetts-type statute extrinsic evidence is admitted to show both presence or absence of intention to disinherit, while under a Missouri-type solution any evidence offered to rebut the statutorily-created presumption of inadvertent omission must appear within the four corners of the will. Oklahoma’s pretermitted-heir provision has been characterized as Massachusetts-derived . . . [and] disallowing the use of parol proof to show testator’s unexpressed intentional omission of children from the will. . . .”

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CAROL M. HANSEN, PRESIDING JUDGE, dissenting: ¶1 The only issue in this appeal is whether extrinsic evidence, in this case video evidence taken during the creation of the will, may be admitted to show intention on the part of the testator. There is no other issue. ¶2 At the time of the execution of the will, the testator was a resident of Texas, the will was executed in Texas and prepared by a Texas attorney. In the will, Testator did not mention her eldest son, Bartley. Apparently the video tape would indeed show she intended to disinherit her son and his heirs. ¶3 A will must be construed according to the intention of the testator 84 O.S. 2001 §151. Clearly the tape will show testator’s intent. ¶4 Title 84 O.S. 2001 §20 does not control the admission of parol evidence. Crump, cited by the majority states, “the law in force in the state when the will is made forms part of that instrument” Crump at p. 1099. Thus, the Texas law allowing extrinsic evidence forms a part of the will. We are here dealing with the correctness of the admission of parol evidence — nothing more. Texas law is the law of the state where the will was made. Texas law allows parol evidence to show the intent of the testator. The reasonable expectations of Testator when she made the will were that the video would be admitted to show her intent to disinherit Bradley and his heirs at law. ¶5 Probate proceedings are equitable in nature. In re Holcomb, 2002 OK 90, 63 P.3d 9. In my view, because the tape would clearly evidence Testator’s intent, not only the law, but equity requires the tape to be admitted. ¶6 I also believe there is merit to Appellant’s argument the legal differences between the two states’ treatment of parol evidence creates a latent ambiguity, which in Oklahoma would allow parol evidence to be admitted to show intent of testator. “A latent ambiguity will arise from a fact or circumstance extraneous to the text — which renders the meaning uncertain.” (Emphasis supplied) Crump at p. 1099. ¶7 I would reverse and remand with directions to admit the video evidence.

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2010 OK CIV APP 25 JIMMY BAKER, Petitioner, v. DARR EQUIPMENT CO., and CONTINENTAL CASUALTY CO., Insurance Carrier, Respondents. Case No. 107,149. February 5, 2010 PROCEEDING TO REVIEW AN ORDER OF THE WORKERS’ COMPENSATION COURT HONORABLE MICHAEL J. HARKEY, TRIAL JUDGE SUSTAINED Donald E. Smolen, II, SMOLEN, SMOLEN & ROYTMAN, Tulsa, Oklahoma, for Petitioner Nelson J. Christiansen, MCGIVERN, GILLIARD & CURTHOYS, Tulsa, Oklahoma, for Respondents JERRY L. GOODMAN, JUDGE: ¶1 Claimant Jimmy Baker seeks review of the trial court’s May 13, 2009, order dismissing his claim for compensation. Based on our review of the facts and applicable law, we sustain the order under review. FACTS ¶2 Claimant first filed a claim for benefits on January 9, 2001, arising from a single-incident injury to both his right and left shoulders which occurred in July 2000. Less than two weeks later, on January 23, 2001, he filed a request for a hearing on the issues of temporary total disability (TTD) benefits and medical treatment. Employer Darr Equipment Co. denied an injury occurred and denied being given any notice of the injury. Employer later claimed Claimant had pre-existing injuries and was involved in horseplay when he was injured. ¶3 Following a hearing on the issue of TTD on July 26, 2001, the trial court entered an order finding Claimant was injured while employed by Employer and suffered compensable injuries to the right and left shoulders which aggravated a pre-existing injury. The trial court overruled Employer’s horseplay defense and awarded Claimant TTD benefits and medical treatment. The issue of permanent partial disability (PPD) benefits was reserved for a future hearing. ¶4 Employer initially perfected an appeal of that order to the Oklahoma Supreme Court 784

seeking review of the denial of its horseplay defense, but later dismissed the appeal, choosing instead to submit the issue to a three-judge panel for review, which affirmed the trial court’s order on June 6, 2002. Employer then appealed the panel’s order. The Oklahoma Court of Civil Appeals issued Opinion No. 97,904 sustaining the order. No further appeal was taken and mandate was issued May 15, 2003. ¶5 There was no further activity on this claim until May 19, 2006, when Claimant’s new counsel filed an entry of appearance. The next request for benefits came on October 30, 2006, when Claimant filed a Form 9, seeking a hearing on the previously-reserved issue of PPD benefits. Employer objected, contending that issue had been previously adjudicated and was barred by operation of “85 O.S. § 43(B).” Employer asked the trial court to dismiss the claim. ¶6 On February 20, 2007, Claimant voluntarily dismissed his claim. The Form 100 dismissing his claim reflects the following: he was represented by counsel; the $75.00 filing fee was paid; no permanent disability award or settlement order was entered; and this was a dismissal without prejudice. The order of dismissal was executed by the trial court with a notation the dismissal was “Without Prejudice.” ¶7 Less than one year later, on February 1, 2008, Claimant filed a new Form 3, with a new case number, seeking PPD benefits arising from the July 2000 single-incident injury to the left and right shoulders. Employer answered on June 19, 2008. Its Form 10 raised the defenses of res judicata, failure to prosecute, statute of limitations, and statute of repose. ¶8 On July 14, 2008, Employer filed a Form 13 Motion to Dismiss. Claimant requested PPD benefits. Following a hearing on May 12, 2009, the trial court found: ¶1 The claim was filed on JANUARY 9, 2001, the last order entered was SEPTEMBER 5, 2003, dismissed without prejudice on FEBRUARY 20, 2007, refiled on FEBRUARY 1, 2008. ¶2 The Court dismisses the case for claimant’s failure to timely prosecute the initial claim. Therefore, claimant’s claim for compensation is dismissed with prejudice. …

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Claimant seeks review of this May 13, 2009, order. STANDARD OF REVIEW ¶9 The worker’s compensation trial court’s legal ruling on these undisputed facts is reviewed by a de novo standard. Amos v. Spiro Public Schools, 2004 OK 4, ¶ 5, 85 P.3d 813, 815. Further, we apply the law in effect at the time of Claimant’s injury. Id. at ¶ 8, at 816. ANALYSIS ¶10 The law governing the dismissal of Claimant’s claim for lack of prosecution is found at 85 O.S.1991 and Supp. 1999, § 43(B).1 That section reads, in relevant part: B. When a claim for compensation has been filed with the Administrator as herein provided, unless the claimant shall in good faith request a hearing and final determination thereon within three (3) years from the date of filing thereof or within three (3) years from the date of last payment of compensation or wages in lieu thereof, same shall be barred as the basis of any claim for compensation under the Workers’ Compensation Act and shall be dismissed by the Court for want of prosecution, which action shall operate as a final adjudication of the right to claim compensation thereunder. If represented by counsel, the claimant may, upon the payment of the Court’s filing fee, dismiss any claim brought by the claimant at any time before final submission of the case to the Court for decision. … Such dismissal shall be without prejudice unless the words “with prejudice” are included in the order. If any claim that is filed within the statutory time permitted by this section is dismissed without prejudice, a new claim may be filed within one (1) year after the entry of the order dismissing the first claim even if the statutory time for filing has expired. (Emphasis added.) ¶11 This statute provides the only means by which a trial court may dismiss a claimant’s action. Amos, 2004 OK at ¶ 7, 85 P.3d at 816. Further, It is settled law that when a statutory bar of limitation is properly invoked, the burden devolves upon the party seeking to avoid its effect to show the facts or acts which operate to either arrest, suspend, toll or waive the limitation period. United Brick Vol. 81 — No. 8 — 3/20/2010

& Tile Co. v. Roy, Okl., 356 P.2d 107; Swafford v. Schoeb Ranch Mills, Okl., 359 P.2d 584; Bowling v. Blackwell Zinc Co., Okl., 347 P.2d 1022. . . . Beatty v. Scott, 1961 OK 140, ¶ 5, 362 P.2d 699, 701. ¶12 Section 43(B) has been interpreted by the Oklahoma Supreme Court in Matter of Death of Hendricks, 1991 OK 52, 812 P.2d 1361. The time period being examined here in light of 85 O.S.Supp.1990 § 43(B) is the time from the filing of the claim being adjudicated forward for five years. During this period, there is no evidence of any attempt to bring the claim to a final determination. This being the case, the application of § 43(B) to bar the claim is a question of law. There is no evidence of any fact during the relevant time period which would raise a fact question to be adjuciated by the trier of fact. [] The resolution of this contention is pointed to in the early case of Parsons v. State Industrial Court, 372 P.2d 27 (Okl.1962). There this Court stated claimant’s formal written request was made June 30, 1954, which was within five years after the effective date of the limitation provision. There the Court noted that the question of whether the five-year period had run after the request of June 30, 1954 was raised. The Court held that the claimant had requested a hearing three times by June 18, 1959 and thus the claim was not barred five years after the June 30, 1954 request. If the court had been of the opinion that one request for a hearing within five years of filing the compensation claim forever tolled the bar of § 43 this inquiry would have been a useless act. This analysis is born out by the discussion in White v. Weyerhaeuser Co., 798 P.2d 623, 626 (Okl.1990). There this Court said: We have ruled the bar of § 43 requiring dismissal of a claim for compensation when a claimant fails to request a hearing and final determination within five years is positive “and unless a claimant brings himself within the express exception contained in the enactment, or shows acts which operate to toll or arrest the statutory bar, the provisions of the statute are mandatory....” Beatty v. Scott, 362 P.2d 699, 701 (Okl.1961). We have further ruled the claim does not have to be deter-

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mined in the five year period, only that a request be made within the specified period of time. Purdy v. Flint Steel Corp., 535 P.2d 277, 280 (Okl.1975) (emphasis added). In White, supra at 627, this Court noted that the Court of Appeals has recognized the five-year provision was promulgated in part to limit the period of potential liability of an employer once the jurisdiction of the Workers’ Compensation Court is invoked. Were we to hold that a claim could be withdrawn from the five-year limitation period forever by the filing of a request for final determination, the legislative purpose behind the statute would be completely thwarted. We thus hold that the bar of the statute is demonstrated when any five-year period passes after filing a claim in which there has not been a goodfaith effort to receive a hearing and final determination. The claimant’s case is barred by the precise language of the statute. Hendricks, at ¶¶ 9-12, at 1363, 1364 . ¶13 Applying the applicable version of § 43(B), which reduces the time in which a claimant must seek a hearing to three rather than five years, as applied in Hendricks, we must examine the record for any three-year period passing after the filing of a claim in which there has not been a goodfaith effort to request a hearing and final determination. Id. at ¶ 9, at 1363. ¶14 We note two weeks passed between the January 9, 2001, initiation of Claimant’s claim and the January 23, 2001, filing of his Form 9 to request a hearing on the issue of TTD benefits. Seven months elapsed between the January 23, 2001, filing of his Form 9 until Claimant could no longer advance his claim toward finality because Employer sought appellate review on August 22, 2001. Neither party nor the trial court could file further pleadings or orders in this matter until the appellate process was completed on May 23, 2003, when mandate was filed of record and the trial court’s order became final. From that date, no further request for a hearing was filed by Claimant until October 30, 2006, when he sought PPD benefits. ¶15 Whether measured from the time of the first requested hearing for TTD benefits in 2001 until the second requested hearing for PPD

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benefits in 2006, even accounting for the intervening appellate process, or whether by the more generous measure between the May 2003 mandate and the October 2006 request for PPD benefits, the result is the same. More than three years had elapsed during which no request for a hearing was filed or movement toward finality was discernable. Under the mandatory dismissal provisions of § 43(B), whenever any three-year span of time shall elapse between requests for a hearing, the trial court has no discretion but to dismiss the case. ¶16 We are not persuaded by Claimant’s argument that the three-year limitations period is tolled by the setting of an appointment with Employer’s medical expert witness to examine Claimant for purposes of producing a medical report. This argument has been expressly rejected in Smedley v. State Industrial Court, 1977 OK 55, 562 P.2d 847: We hold after the limitation period of one year has run, and in the absence of evidence clearly showing a contrary intent, the furnishing of medical treatment is a conscious recognition of liability for the disability to the employee resulting from a compensable accidental injury under the Workmen’s Compensation law, and tolls or waives the limitation period of one year, with the limitation period beginning to run from last date of such a furnishing under § 43. With this holding, it is not intended, by implication or otherwise, to allow tolling or waiving of the limitation period by a medical examination procured by employer, or by employer’s insurance carrier, to obtain evidence for use at the Industrial Court trial. Id. at ¶ 12, at 851 (emphasis added). See also, Swafford v. Schoeb, 1961 OK 33, ¶ 6, 359 P.2d 584, 586. CONCLUSION ¶17 We hold the trial court correctly dismissed Claimant’s claim for benefits. ¶18 AFFIRMED. GABBARD, P.J., and RAPP, J., concur. 1. Section 43(B) was last amended in 1997, when the previous fiveyear time limit to request a hearing was reduced to three years. Section 43 has since been twice amended in 2001 and 2005, but subsection (B) has remained unchanged since 1997.

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, February 3, 2010 C-2009-477 — Stewart Lee Tobias, Petitioner, entered pleas of no contest to the crimes of Lewd Molestation (Count 1) and Sexual Battery (Count 2) in Case No. CF-2008-11 in the District Court of Garfield County. The Honorable Dennis W. Hladik accepted his pleas and sentenced him pursuant to the plea agreement to ten years imprisonment on Count 1 and five years imprisonment on Count 2, with the sentences to be served concurrently and the balance of the sentences suspended upon successful completion of the Sexual Offender’s Treatment Program. Tobias filed a timely motion to withdraw his pleas, and after the prescribed hearing, that motion was denied. Tobias appeals the District Court’s order and asks this court to grant certiorari allowing him to withdraw his plea. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. F-2008-1199 — Cody Robert Grenemyer, Appellant, was tried by jury for the crimes of First Degree Rape (Count I) Lewd Molestation (Counts II and III) and First Degree Rape (Count IV) in Case No. CF-2007-119, in the District Court of Rogers County. The jury returned a verdict of guilty and recommended as punishment two sentences of life imprisonment without the possibility of parole in Counts I and IV and twenty (20) years imprisonment on each of Counts II and III with all sentences to run consecutively. The trial court sentenced accordingly. From this judgment and sentence Cody Robert Grenemyer has perfected his appeal. Judgments of the District Court are AFFIRMED. The Sentences on Counts II and III are AFFIRMED. The Sentences on Counts I and IV are Modified to life imprisonment with the possibility of parole, to run consecutively. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur. Vol. 81 — No. 8 — 3/20/2010

F-2009-28 — Jennifer Louise Grenemyer, Appellant, was tried by jury on two counts of Failure to Protect from Sexual Abuse in Case No. CF-2007-118, in the District Court of Rogers County. The jury returned a verdict of guilty and the trial court sentenced Grenemyer to twenty (20) years imprisonment on each count, to run concurrently. From this judgment and sentence Jennifer Louise Grenemyer has perfected her appeal. AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur. Thursday, February 4, 2010 S-2009-574 — On August 18, 2005, Douglas Edward Hardy was charged by Information with, count one, possession of a controlled drug (methamphetamine) in violation of 63 O.S.Supp.2004 § 2-402 and, count two, bring contraband into a jail in violation of 57 O.S.2001, § 21(A), both after former conviction of a felony, in the District Court of Caddo County Case No. CF-2005-250. On November 15, 2005, Hardy entered a negotiated guilty plea and sentencing was delayed so that Hardy could be diverted to the drug court program pursuant to the Drug Court Act, 22 O.S.2001, § 471, et seq. On March 11, 2009, the State filed an application to terminate Hardy from the drug court program. A hearing was set for April 16, 2009. On the same date, Hardy filed a motion to dismiss the State’s application. The trial court heard evidence on the 16th, but continued the case until June 11, 2009, to hear argument on Hardy’s motion. On June 11, the trial court found for Hardy, reasoning that the State’s application was not timely filed, and dismissed the State’s application to terminate Hardy from drug court. The trial court indicated its intention to sentence Hardy pursuant to the plea agreement, as if Hardy had successfully competed drug court. The State announced it wished to appeal. On June 11, 2009, the trial court issued an “Order Dismissing Application To Terminate; Order Staying Imposition of Sentence After Completion of Drug Court Program; Order Granting Leave to State to File Interlocutory Appeal Of A Question Of Law” (as corrected on June 12, 2009). On June 19,

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2009, the State filed its notice of intent to appeal with the District Court followed by its petition in error with this Court on September 9, 2009. The State has perfected its appeal. The State’s appeal pursuant to 22 O.S.Supp.2009, § 1053(3) is hereby dismissed. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur. C-2008-1183 — Petitioner, Kory Williams, on June 20, 2008, entered blind pleas of no contest to the crimes of: (1) shooting with intent to kill in violation of 21 O.S.2001, § 652(A); (2) assault with a deadly weapon in violation of 21 O.S.Supp.2005, § 652; (3) feloniously possession of a firearm in violation of 21 O.S.2001, § 1283; (4) possession of a sawed-off shotgun in violation of 21 O.S.2001, § 1289.18; and (5) receiving or concealing stolen property in violation of 21 O.S.2001, § 1713, in Muskogee County Case No. CF-2007-204, before the Honorable Michael Norman, District Judge. Sentencing was set off for the purposes of having a pre-sentence investigation completed. At sentencing, on November 17, 2008, Judge Norman sentenced Williams to life on counts one and two and ten (10) years on counts 3-5. All sentences were ordered to be served concurrently. Williams filed several pro-se letters indicating that he wanted to withdraw his plea before formal sentencing. Counsel filed on December 1, 2008, a “renewed application to withdraw plea” which incorporated Williams’s hand written requests, as well as claiming that his plea was not voluntary and his sentences are excessive and he was unaware he could receive the sentences given. A hearing was held on December 8, 2008, before Judge Norman who denied the motion. From this judgment and sentence, Williams has perfected his appeal. The Writ of Certiorari is GRANTED. Williams is allowed to withdraw his guilty plea and the judgment and sentence of the District Court is vacated. This case is REMANDED to the District Court for further proceedings consistent with the Opinion. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Results; Chapel, J., Concurs. F-2008-817 — Byron Tyree Watson, Appellant, was tried by jury and convicted of, counts one, two, and three, robbery with a firearm, in violation of 21 O.S.2001, § 801; counts four and five, assault and battery with a dangerous weapon, in violation of 21 O.S.Supp.2007, § 645; counts six and seven, kidnapping, in 788

violation of 21 O.S.2001, § 741, count eight, first degree burglary, in violation of 21 O.S.2001, § 1431, in Oklahoma County District Court, Case No. CF-2007-3267, before the Honorable Virgil C. Black, District Judge. The jury found Appellant guilty as charged and set punishment at thirty (30) years on counts one, two, and three; ten (10) years on counts four, five, six, and seven; and seven (7) years on count 8. The trial court sentenced Appellant in accordance with the jury’s verdict with the terms ordered to run consecutively. From the judgments and sentences, Watson has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Concurs in Results. Monday, February 8, 2010 C-2009-437 — Danny Dawkins, Petitioner, pled guilty to the crime of Possession of a Controlled Dangerous Substance (Methamphetamine) in Case No. CF-2006-392 in the District Court of Seminole County. The Honorable George W. Butner accepted his plea, and delayed sentencing pending successful completion of an in-patient treatment program. Prior to sentencing, Dawkins filed a motion to withdraw plea. A hearing on the motion was held on January 15, 2009, before the Honorable B. Gordon Allen. After denying the motion, Judge Allen sentenced Dawkins to ten years imprisonment with all but the first five years suspended. Dawkins appeals the order and asks this Court to grant certiorari and allow him to withdraw his plea and proceed to trial, or in the alternative, to favorably modify his sentence. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. C-2009-617 — Christopher Overby, Petitioner, entered a guilty plea to the crime of Possession of a Firearm While Under Supervision of the Department of Corrections in Case No. CF2008-5956 in the District Court of Tulsa County. The Honorable Tom C. Gillert accepted his plea and sentenced him to ten years imprisonment, with the first five years to be served in custody and the last five years to be suspended. The sentence was ordered to be served concurrently with his sentence in Tulsa County Case No. CF-2007-5705. Overby filed a timely pro se motion to withdraw plea, and after the pre-

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scribed hearing, the motion was denied. Overby appeals the District Court’s order and asks this Court to grant certiorari and order a new hearing on his motion to withdraw plea with representation by conflict-free counsel. The Petition for Writ of Certiorari is GRANTED and the case is REMANDED to the District Court for a hearing on the Application to Withdraw Plea consistent with this Opinion. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. C-2009-309 — Cory Alan Burton, Petitioner, entered pleas of guilty to the crimes of Conspiracy to Deliver/Manufacture/Possess Controlled Dangerous Substance (Methamphetamine) (Count 1), and Possession of Controlled Substance (Count 3), both after Former Conviction of Three Felonies; and Unlawful Possession of Drug Paraphernalia (Count 4), a misdemeanor, in Case No. CF-2008-60 in the District Court of Beckham County. The Honorable Doug Haught accepted his plea and diverted sentencing pending Burton’s participation in the Drug Court Program. On September 10, 2008, Burton was terminated from the Drug Court Program and he was sentenced pursuant to his plea agreement to twenty years imprisonment on Count 1, ten years imprisonment on Count 3, and one year imprisonment on Count 4. Burton filed a timely application to withdraw his plea, and after the prescribed hearing before the Honorable Charles L. Goodwin, his application was denied. Burton now appeals the District Court’s order and asks this Court to grant certiorari allowing him to withdraw his plea and proceed to trial, or in the alternative, to favorably modify his sentences. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. F-2008-1042 — Appellant Armon Jonell Williams was tried by jury and convicted of Attempted Robbery, After Former Conviction of Two or More Felonies, Case No. CF-2008129, in the District Court of Tulsa County. The jury recommended as punishment twenty (20) years imprisonment and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J.: concur; A. Johnson, V.P.J., concur; Chapel, J., concur in result; Lewis, J., concur. Vol. 81 — No. 8 — 3/20/2010

F-2009-188, F-2009-189, F-2009-190 — Christopher Michael Ross, Appellant, appeals from an order revoking him from the Drug Court program and imposing his sentences, entered by the Honorable Farrell M. Hatch, District Judge, in Case Nos. CF-2005-300, CF-2006-27 and CF-2007-64 in the District Court of Bryan County. In Case No. CF-2005-300, Appellant entered a plea of guilty to Count 1 — Unlawful Possession of Controlled Drug With Intent to Distribute (Marijuana), a felony; and Count 2 — Driving Under the Influence of Alcohol/ Drugs, a misdemeanor. If Appellant was unsuccessful in the program he was to be sentenced to a term of ten years, with five years to serve and five years suspended on Count 1, and one year to serve in the County Jail on Count 2. In Case No. CF-2006-27, Appellant was charged with Count 1 — Possession of Controlled Substance (Methamphetamine), a felony; and Count 2 — Possession of Controlled Substance (Marijuana), a misdemeanor. If Appellant was unsuccessful in the program he was to be sentenced to a term of ten years, with five years to serve and five years suspended on Count 1, and Count 2 was to be dismissed. In Case No. CF-2007-64, Appellant was charged with Count 1 — Burglary in the Second Degree, a felony; Count 2 — Knowingly Concealing Stolen Property, a felony; and Count 3 — Possession of Controlled Substance (Marijuana), a misdemeanor. If Appellant was unsuccessful in the program he was to be sentenced to a term of seven years, with two years to serve and five years suspended on Count 1, and five years to serve on Count 2. All sentences were allowed to be served concurrently. On February 27, 2009, Judge Hatch found that Appellant had committed numerous violations of his Drug Court contract, and that disciplinary sanctions had been insufficient to gain his compliance. Judge Hatch revoked Appellant from the Drug Court program and sentenced him in each of the cases as provided in his plea agreement. The order of the District Court of Bryan County revoking Appellant from Drug Court and imposing his concurrent sentences in Case Nos. CF-2005-300, CF-2006-27 and CF-2007-64 is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J., concur; Lewis, J., concur RE-2008-753 — Therman Krishawn Kemp, Appellant, entered guilty pleas to various felony charges in Oklahoma County Case Nos. CF-2007-802 and CF-2007-4931. Appellant was sentenced to varying terms of incarceration for

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the offenses, and all of the sentences were suspended, subject to terms and conditions of probation. The State filed an Application to Revoke Suspended Sentences and on July 30, 2008, Appellant’s suspended sentences were revoked in full. From this judgment and sentence, Appellant appeals. The revocation of Appellant’s suspended sentences in full is AFFIRMED. The portion of the District Court’s order purporting to revoke Appellant’s suspended sentence for Count 2 in Oklahoma County Case No. CF-2007-802 is VACATED as the sentence had been fully discharged prior to the filing of the State’s application to revoke. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Chapel, J., concur; Lewis, J., concur. Tuesday, February 9, 2010 F-2008-843 — Byron Tyree Watson, Appellant, was tried by jury and convicted of, counts one, two, and three, robbery with a firearm, in violation of 21 O.S.2001, § 801; counts four and five, assault and battery with a dangerous weapon, in violation of 21 O.S.Supp.2007, § 645; counts six and seven, kidnapping, in violation of 21 O.S.2001, § 741, count eight, first degree burglary, in violation of 21 O.S.2001, § 1431, in Oklahoma County District Court, Case No. CF-2007-3267, before the Honorable Virgil C. Black, District Judge. The jury found Appellant guilty as charged and set punishment at thirty (30) years on counts one, two, and three; ten (10) years on counts four, five, six, and seven; and seven (7) years on count 8. The trial court sentenced Appellant in accordance with the jury’s verdict with the terms ordered to run consecutively. From the judgments and sentences, Watson has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Chapel, J., Concurs in Results. F-2009-16 — Roger Sloan Haney, Appellant, was tried by jury for the crimes of Count 1: Second Degree Felony Murder and Count 2: Driving Under the Influence of Drugs in Case No. CF-2007-248 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment ten years imprisonment on Count 1, and one year in the county jail on Count 2. The trial court sentenced accordingly, ordering that the sentences be served consecutively to each other. The court also imposed restitution of $4,321.03. From this judgment and sentence Roger Sloan 790

Haney has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur in Result; Lewis, J., Concur. C-2009-526 — Robert J. Peters, Petitioner, entered blind pleas of guilty to the crimes of Conspiracy to Commit Robbery (Count 1) and Robbery with a Dangerous Weapon (Count 2) in Case No. CF-2007-848 in the District Court of Muskogee County. The Honorable Norman D. Thygesen accepted Peters’s pleas, and, after receipt of a Presentence Investigation Report and hearing, sentenced him to ten years imprisonment on Count 1 and thirty-five years imprisonment on Count 2, with the sentenced to be served concurrently. Thereafter, Peters sent Judge Thygesen a hand-written note indicating his desire to withdraw his pleas of guilty which was construed as a pro se motion to withdraw his pleas. After the prescribed hearing, that motion was denied. Peters appeals the District Court’s order and asks this Court to grant certiorari and allow him to withdraw his pleas and proceed to trial on the merits. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. Wednesday, February 10, 2010 C-2009-569 — Leslie Morton, Petitioner, entered an Alford plea to five counts of Embezzlement in Case No. CF-2008-117, in the District Court of Woodward County. In accordance with a negotiated plea agreement, Morton was sentenced to one (1) year deferred judgment on each count, to run concurrently. Morton also agreed to pay restitution and not to seek employment in law enforcement for a period of time. Morton filed a timely motion to withdraw his pleas, which were denied following a June 4, 2009 hearing. From this judgment and sentence Leslie Morton has perfected his Petition for Writ of Certiorari. The Petition for Writ of Certiorari is DENIED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. Friday, February 12, 2010 C-2009-208, C-2009-217, and C-2009-218 — Robert Antwain Long, Petitioner, entered guilty pleas to the crimes of Robbery with a Firearm in Case No. CF-2008-4463, and Possession of a Credit/Debit Card Belonging to Another and Unauthorized use of a Credit/Debit Card in

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Case No. CF-2008-4373, and confessed the Application to Accelerate Judgment and Sentence for the crime of Knowingly Concealing or Receiving Stolen Property in Case No. CF2008-2557, in the District Court of Tulsa County. The Honorable Gordon McAllister, Jr., accepted his pleas and sentenced him to eighteen years imprisonment and a $500 fine in Case No. CF-2008-4463; three years imprisonment and thirty days imprisonment, respectively, to run concurrently with each other, in Case No. CF-2008-4373; and two years imprisonment in Case No. CF-2008-2557. The sentences imposed in these three cases were ordered to run concurrently each with the other. Long filed a motion to withdraw his pleas, and after the prescribed hearing, his motion was denied. Long filed three Petitions for Writ of Certiorari raising six propositions in support of each petition. Before this Court, Long raises the single issue of whether he is entitled to be resentenced because he had the right to and was denied a presentence investigation. Long’s Petitions for Writ of Certiorari are DENIED. The Judgments and Sentences of the Trial Court are AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs in results; Lumpkin, J., concurs; Chapel, J., dissents; Lewis, J., concurs. C-209-365 — Petitioner, Cecelia Cathleen Rodriguez, entered a blind plea of guilty to the offense of Grand Larceny in violation of 21 O.S.2001, § 1704, after former conviction of two or more felonies, in Oklahoma County District Court case no. CF-2008-2013, before the Honorable Ray C. Elliot, District Judge. Judge Elliot accepted the plea and sentenced Rodriguez to life imprisonment. A hearing on the motion to withdraw plea was held on April 13, 2009. The trial court denied Rodriguez’s motion. From this ruling, Petitioner has perfected her appeal. Rodriguez’s petition for writ of certiorari is DENIED, and the trial court’s order denying Rodriguez’s motion to withdraw plea is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., concurs; A. Johnson, V.P.J., concurs in part/ dissents in part; Lumpkin, J., concurs; Chapel, J., concurs in part/dissents in part. Thursday, February 18, 2010 C-2009-491 — Jimmy Dewayne Stevens, Jr., Petitioner, pled guilty to the crimes of Possession of a Controlled Dangerous Substance (Methamphetamine) (Count 1) and Possession of a Controlled Dangerous Substance (Marijuana) (Misdemeanor) (Count 2) in Case No. Vol. 81 — No. 8 — 3/20/2010

CF-2008-04 in the District Court of Marshall County. The Honorable Richard A. Miller accepted Stevens’ plea and sentenced him to ten years imprisonment on Count 1 and one year imprisonment on Count 2, and ordered the sentences to be served consecutively. Stevens filed a timely motion to withdraw plea and after the prescribed hearing, the district court denied the motion. Stevens appeals the district court’s order and asks this Court to grant certiorari. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., dissents; Lumpkin, J., concurs; Chapel, J., dissents; Lewis, J., concurs. F-2008-786 — James Dion Smith, Appellant, entered a plea of no contest to Unlawful Possession of a Controlled Drug in Tulsa County District Court Case No. CF-2003-4739. The District Court deferred imposition of Smith’s Judgment and Sentence for two years. The sentence was subsequently accelerated by the Honorable Tom C. Gillert, District Judge. From this order of acceleration, Appellant has perfected his appeal. The District Court’s order revoking Appellant’s suspended sentences in full is REVERSED and this matter is remanded with instructions to DISMISS. Opinion by Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Dissent; Lewis, J., Concur. Friday, February 19, 2010 F-2007-1133 — Jona Ann Montgomery, Appellant, was tried by jury for the crimes of Second Degree Murder (Count 1) and Leaving the Scene of a Fatality Accident (Count 2) in Case No. CF2006-372 in the District Court of Pittsburg County. The jury returned a verdict of guilty and recommended as punishment life imprisonment with the possibility of parole on Count 1 and ten years imprisonment on Count 2. The trial court sentenced accordingly and ordered the sentences to be served concurrently. From this judgment and sentence Jona Ann Montgomery has perfected her appeal. The Judgment and Sentence of the District Court on Count 1 is REVERSED and REMANDED for a new trial. The Judgment and Sentence on Count 2 is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., dissents; Chapel, J., concurs; Lewis, J., concurs. RE-2009-0080 — Appellant, Zachary Glenn Hayes, pled guilty November 14, 2007, to Rape by Instrumentation in Garfield County District

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Court Case No. CF-2007-446. Appellant was sentenced to twenty years suspended with rules and conditions of probation. The State filed an application to revoke Appellant’s suspended sentence on June 5, 2008. Following a revocation hearing January 21, 2009, the Honorable Ronald G. Franklin, District Judge, revoked Appellant’s suspended sentence in full and assessed $625.55 in jail costs. Appellant appeals from the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence in Garfield County District Court Case No. CF-2007-446 is AFFIRMED but the order directing the defendant pay $626.55 jail costs entered at the revocation hearing is VACATED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., Concur; Lumpkin, J., Concur in Results; Chapel, J., Concur; Lewis, J.: Concur. F-2008-1231 — Jimmy Glenn Hendrix, Appellant, was tried by jury for the crimes of First Degree Murder (Count I), Possession of a Firearm (Count II), both after former conviction of two or more felonies, in Case No. CF-20081228, in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment Life imprisonment on Count I and thirty (30) years imprisonment on Count II with sentences to run consecutively. The trial court sentenced accordingly. From this judgment and sentence Jimmy Glenn Hendrix has perfected his appeal. AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur. Monday, February 22, 2010 F-2008-969 — Terry Ray Webb, Appellant, was tried by jury for the crimes of First Degree Rape, After Former Conviction of Two or More Felonies (Count 1) and First Degree Burglary, After Former Conviction of Two or More Felonies (Count 3) in Case No. CF-2007-498 in the District Court of Washington County. The jury returned a verdict of guilty and recommended as punishment thirty years imprisonment on Count 1 and twenty years imprisonment on Count 3. The trial court sentenced accordingly. From this judgment and sentence Terry Ray Webb has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. We REMAND to correct the Judgment and Sentence nunc pro tunc to reflect Webb was convicted under 21 O.S.2001, § 1114(A)(3) in Count 1. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs in results. 792

C-2009-865 — Floyd Reid, Petitioner, pled guilty to Robbery with a Firearm (Counts IV and V), each after former conviction of two or more felonies in Case No. CF-2009-3165, in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment twenty (20) years imprisonment on each count, with the sentences running concurrently. The trial court sentenced accordingly. From this judgment and sentence Floyd Reid has perfected his appeal. The Petition for Writ of Certiorari is GRANTED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur in Results. F-2008-1041 — David Roland Boschee, Appellant, was tried by jury for the crimes of Robbery with a Firearm (Counts I and IV), Committing a Felony with Firearm with Defaced Serial Number (Count II), and Possession of a Firearm AFCF (Counts III and V), in Case No. CF-20082320 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment twenty five years imprisonment on each of Counts I and IV, and five years imprisonment on each of Counts II, III and V. The trial court sentenced Appellant accordingly, ordering the sentences on Counts I and IV to run consecutive to each other and the sentences on Counts II, III and V to run concurrently with the sentence imposed on Count I. From this judgment and sentence David Roland Boschee has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED as to Counts I-IV. Judgment and Sentence on Count V is REVERSED with instructions to DISMISS. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Dissent; Lewis, J., Concur. F-2008-824 — James Taylor Allen, Appellant, entered guilty pleas to four felony charges in Pontotoc County Case No. CF-2005-215. Appellant was sentenced to ten (10) years for Count 1, seven (7) years each for Counts 2 and 3 and two (2) years for Count 4, all suspended, the sentences to be served concurrently. Upon filing of the State’s Application to Revoke Suspended Sentences, the District Court delayed sentencing pending Appellant’s completion of Drug Court. Appellant was subsequently terminated from Drug Court, his suspended sentences were revoked in full, and he was ordered to serve the sentences consecutively. From this judgment and sentence, Appellant appeals. Appellant’s termination from Drug Court is AFFIRMED.

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The District Court’s order is VACATED and the matter is REMANDED to the District Court of Pontotoc County for entry of an order directing Appellant’s sentences to be served concurrently. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs. F-2009-40 — Kim Lynn Mason, Appellant, was tried by jury for the crimes of Assault and Battery Upon a Police Officer, After Former Conviction of Two or More Felonies (Count I), Unlawful Possession of Marijuana (Count II) and Unlawful Possession of Paraphernalia (Count III), in Case No. CF-2007-30 in the District Court of Craig County. The jury returned a verdict of guilty and recommended as punishment life imprisonment on Count I, one year in the county jail and a $1,000 fine on Count II and six months in the county jail and a $500 fine on Count III. The trial court sentenced accordingly ordering the sentences be served concurrently. From this judgment and sentence Kim Lynn Mason has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur in Part/Dissent in Part; Lewis, J., Concur in Result. Tuesday, February 23, 2010 C-2009-549 — Arthur Eugene Pennington II, Petitioner, entered negotiated pleas of guilty, in the District Court of Tulsa County, Case No. CF2008-2043, to the following crimes: Count 1, Trafficking in Cocaine Base; Count 2, Possession of Marijuana (Subsequent Offense); Count 3, Possession of Controlled Drugs without a Tax Stamp; and Count 4, Possession of Drug Paraphernalia. Pursuant to the plea agreement, the State dismissed all but one of Petitioner’s prior convictions for sentence enhancement purposes, and the District Judge, sentenced Petitioner as follows: Count 1, life imprisonment and a $25,000 fine; Count 2, 10 years imprisonment and a $500 fine; Count 3, five years imprisonment and a $500 fine; and Count 4, one year in the county jail and a $250 fine. The court ordered all sentences to be served concurrently. Petitioner filed a motion to withdraw his pleas. At a hearing held the court denied Petitioner’s request. From this judgment and sentence Arthur Eugene Pennington II has perfected his appeal. The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the trial court is AFFIRMED, but the case is REMANDED to the district court for nunc pro tunc correction of the Judgment and Sentence. Vol. 81 — No. 8 — 3/20/2010

Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J., Concur. F-2009-197 — James Robert Koomsa, Appellant, was tried by jury for the crimes of Count 1: Possession of Methamphetamine, After Conviction of one Drug-Related Felony; Count 2: Possession of Drug Paraphernalia; and Count 3: Tampering with a Vehicle, in Case No. CF-200760 in the District Court of Caddo County. The jury returned a verdict of guilty and recommended as punishment twelve years on Count 1, one year and a $1000 fine on Count 2, and a $500 fine on Count 3. The trial court sentenced accordingly, ordering the terms of incarceration to be served concurrently. From this judgment and sentence James Robert Koomsa has perfected his appeal. The Judgment and Sentence of the district court is AFFIRMED, but the case is REMANDED to the district court for correction of the Judgment and Sentence nunc pro tunc. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Chapel, J., Concur; Lewis, J., Concur. Thursday, February 25, 2010 F-2009-47 — Mark Kenneth Simmons, Appellant, was tried by jury for the crime of Murder in the First Degree in Case No. CF-2004-435 in the District Court of Comanche County before the Honorable Mark R. Smith, District Judge. The jury found the Appellant guilty of the lesser included charge of Manslaughter in the First Degree in violation of 21 O.S. 2001, § 711 and set punishment at fifteen (15) years imprisonment. The trial court imposed judgment and sentence in accordance with the jury’s verdict. From this judgment and sentence, the Appellant has perfected his appeal. The Judgment is AFFIRMED. The sentence is VACATED and REMANDED for re-sentencing. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs; Chapel, J., Concurs. F-2009-440 — Carlis Anthony Ball was tried by jury and convicted of Count I, First Degree (Child Abuse) Murder and Count II, Child Neglect in the District Court of Tulsa County, Case No. CF-2005-2586. He was sentenced to life imprisonment without the possibility of parole (Count I) and life imprisonment (Count II). This Court affirmed the convictions, but remanded the case for resentencing. A non-jury resentencing trial was held on April 21, 2009. The Honorable Tom C. Gillert sentenced Ball to

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life imprisonment without the possibility of parole (Count I) and twenty-five (25) years imprisonment (Count II) to run consecutively. From this sentence Carlis Anthony Ball has perfected his appeal. AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur. Friday, February 26, 2010 F-2009-77 — Patrick Darnell Phillips, Appellant, was tried by jury for the crime of First Degree (Child Abuse) Murder in Case No. CF2007-87, in the District Court of Garfield County. The jury returned a verdict of guilty and recommended as punishment life imprisonment. The trial court sentenced accordingly. From this judgment and sentence Patrick Darnell Phillips has perfected his appeal. AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Part/ Dissent in Part; Lewis, J., Concur. Tuesday, March 2, 2010 C-2008-1155 — Sean Phillip Gillen, Petitioner, entered blind pleas of guilty to the crimes of Distribution of Controlled Dangerous Substance to a Minor (Count 1), Rape in the Second Degree (Count 2), Unlawful Possession of Drug Paraphernalia (Count 3), and Obstructing an Officer (Count 4) in Case No. CF-2007-481 in the District Court of Payne County. The Honorable Donald L. Worthington accepted his pleas and sentenced him to ten years imprisonment on each of Counts 1 and 2 and one year in the Payne County Jail on each of Counts 3 and 4, with the sentences on all four counts to be served concurrently. Gillen filed a timely Application to Withdraw Plea, and, after the prescribed hearing, the application was denied. Sean Phillip Gillen appeals the District Court’s order and asks this Court to grant certiorari and allow him to withdraw his pleas and proceed to trial or, alternatively, to favorably modify his sentences. The Petition for Writ of Certiorari on Counts 1, 2, and 3 is DENIED. The Judgment and Sentence of the District Court on those counts is AFFIRMED. The Petition for Writ of Certiorari on Count 4 is GRANTED and this matter is REMANDED to the District Court with instructions to permit Gillen to withdraw his plea of guilty as to Count 4. Gillen’s Application for Evidentiary Hearing is DENIED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in results; Chapel, J., dissents; Lewis, J., concurs. 794

F-2009-0148 — Appellant, Cameron Marcus Ross, appeals from the acceleration of his deferred sentences in eight separate cases from the District Court of Garfield County. On November 9, 2007, Appellant pled guilty as follows: CM-2006-823: Count 1 – Possession of Controlled Substance, a misdemeanor, and Count 2 – Unlawful Possession of Drug Paraphernalia, a misdemeanor; CF-2007-328: Burglary in the Second Degree; CF-2007-329: Count 1 - Burglary in the Second Degree and Count 2 – Knowingly Concealing Stolen Property; and, CM-2007-517: Count 1 – Driving Without A Driver’s License, a misdemeanor, and Count 2 – Failure to Maintain Security, a misdemeanor. On April 16, 2008, Appellant pled guilty as follows: CM-2008-27: Malicious Injury to Property; a misdemeanor; CF-2008-51: Count 1 – Uttering a Forged Instrument, Counts 2 and 3 – Possession of a Forged Instrument; CF-200859: Distribution of Controlled Substance (crack cocaine); and, CF-2008-149: Three counts of Uttering Forged Instrument. Following completion of the RID program, Appellant was given five year deferred sentences in each of the eight cases on November 21, 2008. All cases were ordered to run concurrently and be supervised by the Department of Corrections with rules and conditions of probation. The State filed an application to accelerate Appellant’s deferred sentences on December 3, 2008. Following an acceleration hearing February 5, 2009, the Honorable Dennis W. Hladik, District Judge, found the State met its burden, granted the State’s motion to accelerate Appellant’s deferred sentences and sentenced Appellant as follows: CM-2006-823: one year in the County Jail on each count, each count concurrent with the other and with CM-2008-27, CM-2007-517 and CF-208-149; CF-2007-328: seven years suspended to run consecutive to CF-2008-59; CF2007-329: seven years on Count 1 and five years on Count 2, each to run concurrent with the other but consecutive to CF-207-328; CM2007-517: thirty days on each count, each count concurrent with the other and with CM-200827, CM-2006-823 and CF-2008-149; CM-200827: one year in the County Jail, concurrent with CM-2007-517, CM-2006-823 and CF-2008-149; CF-2008-51: seven years on each count to run concurrent with the other but consecutive to CF-2008-149; CF-2008-59: ten years imprisonment to run consecutive to CF-2008-51; and, CF-2008-149: seven years on each count to run concurrently with the other. Appellant appeals from the acceleration of his deferred sentences.

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The acceleration of Appellant’s deferred sentences is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concur; Lumpkin, J., concur; Chapel, J., dissent; Lewis, J., concur in results. Wednesday, March 3, 2010 C-2009-647 — On May 4, 2009, Petitioner Daryl Marion Daniel pled guilty before the Honorable Michael C. Flanagan to Second Degree Murder (Count I) and Shooting With Intent to Kill (Count II, Case No. CF-2006-28, in the District Court of Cotton County, Case No. CF-2006-28. On May 21, 2009, the court sentenced Petitioner to life imprisonment without the possibility of parole in Count I and imprisonment with the possibility of parole in Count II, ordering the sentences to run concurrently. On June 2, 2009, the court accepted a handwritten letter from Petitioner requesting withdrawal of his pleas as an application to withdraw the guilty pleas. After a hearing on July 1, 2009, the trial court denied Petitioner’s request to withdraw the pleas. Petitioner subsequently filed this appeal to the trial court’s denial of his motion to withdraw plea. Accordingly, Petitioner’s Request to Supplement Existing Appeal Record is GRANTED, the Application for Evidentiary Hearing on Sixth Amendment Claim is DENIED, the Petition for a Writ of Certiorari is GRANTED and the case is REMANDED to the District Court for a proper hearing on the motion to withdraw plea in a manner not inconsistent with this Order. Opinion by: Lumpkin, Judge; Johnson, C., P.J., concur; Johnson, A., V.P.J., concur; Lewis, J., concur. F-2008-982 — Jason Todd Burns, Appellant, was tried by jury for the crimes of Soliciting Sexual Conduct with a Minor by use of Technology (Count I) and Possession of Child Pornography (Counts II and III) in Case No. CF-2007171, in the District Court of County. The jury returned a verdict of guilty and recommended as punishment ten (10) years imprisonment and $10,000 fine on Count I and five (5) years imprisonment and a $5,000 fine on each of Counts II and III, with all sentences ordered to run consecutively. The trial court sentenced accordingly. From this judgment and sentence Jason Todd Burns has perfected his appeal. AFFIRMED. Opinion by: Chapel, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J., concur.

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F-2008-1069 — Michael Jay Showalter, Appellant, was tried by jury for the crimes of First Degree Rape (Count 1), Forcible Sodomy (Count II) and Manufacturing Child Pornography (Count III), each after Former Conviction of Two or More Felonies in Case No. CF-2005-611 in the District Court of Garfield County. The jury returned a verdict of guilty and acquitted Appellant on Count I and convicted him on Counts II and III. The jury assessed punishment at forty years imprisonment on Count II, and fifteen years imprisonment on Count III. The trial court sentenced Appellant accordingly ordering the sentences to be served consecutively. From this judgment and sentence Michael Jay Showalter has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. Thursday, March 4, 2010 C-2009-842 — Robert Lynn Owens, Petitioner, entered blind pleas of guilty to the crimes of Possession of a Controlled Dangerous Substance (Methamphetamine), After Former Conviction of Two or More Felonies (Count 1), Unlawful Possession of Drug Paraphernalia (Misdemeanor) (Count 2), Possession of a Controlled Dangerous Substance (Hydrocodone) (Misdemeanor) (Count 3), and Violation of Protective Order (Misdemeanor) (Count 4), in Case No. CF-2007496, in the District Court of LeFlore County. The Honorable Brian Henderson accepted Owens’s pleas and sentenced him to twenty years imprisonment and a $10,000 fine on Count 1, and one year imprisonment and a $1,000 fine on each of Counts 2, 3, and 4. Judge Henderson ordered the sentences to be served concurrently with each other and Owens’s sentence in CF-2003152, but consecutively to the sentence of twentyfive years on Count 2 in CF-2008-1. Robert Lynn Owens filed a timely motion to withdraw plea and after the prescribed hearing, the motion was denied. Owens appeals the district court’s order and asks this Court to grant certiorari and allow him to withdraw his pleas and proceed to trial on the merits, or in the alternative, to favorably modify his sentence. The Petition for Writ of Certiorari is DENIED. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Chapel, J., concurs; Lewis, J., concurs.

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POSITIONS AVAILABLE THE PAWNEE NATION OF OKLAHOMA is accepting applications for the position of Attorney General. For complete job descriptions, application deadlines, and the employment application form, please visit our website at www.pawneenation.org. DOWNTOWN TULSA AV RATED FIRM SEEKS ASSOCIATE with 3 to 10 years civil litigation experience. Firm offers an excellent compensation package. Salary is commensurate with experience. Strong academic record required. Please send resume, references, writing sample and law school transcript to “Box Z,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. DOWNTOWN OKLAHOMA CITY, AV RATED, product liability and insurance defense firm seeks attorney with at least 5 years of experience. Please send resumes to “Box L,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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POSITIONS AVAILABLE

FOLIART, HUFF, OTTAWAY & BOTTOM seeking motivated associate with 0-3 years defense litigation experience for challenging position with heavy emphasis on discovery and trial preparation in defense of medical negligence cases. Must be detail oriented and have excellent writing skills. Competitive salary and benefits. Send resume, transcript and writing sample to davidmcphail@oklahomacounsel.com.

DOWNTOWN OKLAHOMA CITY, AV RATED, INSURANCE DEFENSE LAW FIRM with emphasis on Commercial Trucking Litigation, seeks associate attorney with 0-2 years of litigation experience, good writing skills and looking for new challenges. Compensation package is commensurate with level of experience. Please send resume in confidence via email to karen@millsfirm.com.

ADMINISTRATVIE ASSISTANT WANTED for executive offices of the Oklahoma Education Association. Proficiency in all computer applications and electronic media required. Prior experience with client relations and general office management desired. Salary range in low $30’s depending upon experience. Liberal fringe benefits, including employer paid health insurance premium, defined benefit pension plan and matching 401(k) contributions. Send resume to Lynn Tiefenthaler, Oklahoma Education Association, P.O. Box 18485, Oklahoma City, OK 73154. EEO Employer.

EXPERIENCED PARALEGAL NEEDED for very busy Edmond law firm. Experience in civil litigation required. Salary commensurate with experience. Please send resume and references to “BOX AA,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

IN-HOUSE REAL ESTATE ATTORNEY. Solid OKC-based national corporation seeking an attorney with 3 to 7 years of experience. Strong transactional experience is required. Experience with real estate transactions, especially commercial leasing, is a plus. Position will provide counsel to the company’s real estate and construction departments. Duties will include negotiating and drafting commercial lease documents, resolving disputes with existing leases, and providing counsel on a wide variety of real estate and construction issues. Exceptional working environment, competitive salary, medical/dental plan, life ins., 401k, etc. Applications MUST include resume’, writing sample, and salary requirements. Send to “Box CC,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. IN-HOUSE COUNSEL: The Bama Companies in Tulsa, Oklahoma is seeking a transactional attorney with 7 years experience in contract/business law. This role is responsible for drafting, reviewing and negotiating contracts for various departments and for providing counsel in the areas of labor and employment, real estate, product’s liability and workers’ compensation. Reporting to the Director of Legal Services, this position is a hands-on role with varied day-to-day responsibilities and the potential for growth as a leader within the Bama system. Prefer undergraduate business degree and/or broad business knowledge and skills. Please apply online at www.bama.com or send resume to hrdepartment@bama.com.

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ASSISTANT GENERAL COUNSEL III: The Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) is recruiting for an Assistant General Counsel III. This position performs responsible professional legal work in preparation & presentation of cases in court & administrative proceedings, & advises the agency & personnel regarding legal matters. Requires: Juris Doctorate degree from an ABA accredited law school and member in good standing with the Oklahoma Bar, with a min. of 6 yrs exp. in practicing law. Preference may be given to applicants with civil & administrative litigation, trial exp. & for individuals with a min. of 1 yr. exp. in representing governmental entities in litigation & trial exp. Applicant must be willing and able to fulfill all job related travel normally associated with this position. Salary range: $60,000 – 75,900, ODMHSAS offers excellent benefit & retirement packages; reference #2010-10 CO with job title & send resume with a writing sample & a copy of your most recent performance evaluation to address below. Reasonable accommodation to individuals with disabilities may be provided upon request. Application period: 2-19-2010 – 3-27-2010. EOE. ODMHSAS – Human Resources, 2401 NW 23rd, Suite 85, OKC, OK 73107, Fax (405) 522-4817, humanresources@odmhsas.org. CONTRACT MANAGER, OU MEDICAL CENTER: Applies high level technical knowledge to manage and process contracts such as service, referral source and income guarantees. Develops, implements and maintains methods for ensuring contract compliance. Works with hospital Directors and HCA legal department to prepare documents. Bachelor’s Degree + 3 yrs experience in managing contracts. To apply submit application at www.oumedicine.com or for questions contact Diane Gonzales, Recruiter (405) 271-5728 Ext 53707. EEO/AA Employer M/F/V/D. PARALEGAL WITH EXPERIENCE HANDLING SOCIAL SECURITY DISABILITY CASES needed for busy Tulsa office. Pay commensurate with experience. Bonus for bilingual ability. Send resume to “Box A,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. All replies kept confidential.

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The Cybersleuth's Guide to the Internet OKC: April 9 - Oklahoma Bar Center 1901 N. Lincoln Blvd. About the Speakers: Carole Levitt, Esq. , President of Internet for Lawyers and American Bar Association author, has over twenty years of combined experience in the legal field as a California attorney, Internet trainer, law librarian, and legal research and writing professor. She was the “Computer Counselor” columnist for the Los Angeles Lawyer magazine. Ms. Levitt received her J.D. from the John Marshall Law School in Chicago, IL, graduating with distinction, and was a member of the school’s law review. She earned her Master’s in Library Science and her Bachelor’s in Political Science at the University of Illinois in Champaign-Urbana. Ms. Levitt serves on the ABA’s Law Practice Management Executive Council and the section’s Publishing Board. Mark Rosch , Vice-President of Internet for Lawyers and ABA author, is the developer and manager of Internet for Lawyers’ website and online education services. He serves as the editor of IFL’s newsletter, The Internet Legal Research Update. More recently, Mark developed IFL’s Facebook Fan Page and tweets about legal technology and Internet research. Mr. Rosch authors numerous articles about computer technology in the law office for Law Technology News, Los Angeles Lawyer, Law Practice, FindLaw.com and the Los Angeles Daily Journal, among other publications. Mr. Rosch served on the ABA’s Law Practice Management Education Board. He is a graduate of Tulane University.

Morning Program:

Super Search Engine Strategies: Mastering Google and Beyond Attendees will learn how the Internet is changing the way they need to research in order to competently represent their clients - and to avoid ethical or malpractice issues! Do lawyers have a duty to Google? At this seminar, attendees will learn the best research strategies (including advanced search features at Google and other search engines) that will assist them in meeting their research obligations.

8:30 a.m. Registration & Continental Breakfast

10:30 a.m. -10:45 a.m. Break

9:00 a.m. -12:15 p.m. Program: Search Engine Strategies: Mastering Google and Beyond

12:15 p.m. Adjourn Networking lunch for all-day attendees (included in all-day registration)

Afternoon Program:

Investigative Research Strategies For Legal Professionals Nationally recognized Internet trainers and authors will show you how to find and use specific web sites to unearth factual and investigative information FREE (or at low cost!) on the Net. Instead of first turning to experts, consultants, skip tracers, and private investigators, seminar attendees will quickly learn how to be their own Cybersleuth.

2:30 p.m. - 2:45 p.m. Break

12:30-1:15 p.m. Registration 1:15-4:30 p.m. Program: Investigative Research Strategies For Legal Professionals

4:30 p.m. Adjourn

CLE Credit: 7 hours of mandatory CLE credit, including 0 hours of ethics for all day program; 3.5 hours MCLE/0 ethics for morning session; 3.5 hours MCLE/0 ethics for afternoon session. Tuition: $225 (full day,) $150 (single session) for early-bird registrations

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