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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
events Calendar OCTOBER 2010 18 21 22
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 Petry Lewis, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; John Burchell, Information Services Manager; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Manni Arzola, Debbie Brink, Melissa Brown, Stephanie Burke, Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Amy Kelly, 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
23 27 28 29
OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Andrea Braeutigam (405) 640-2819 OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kade A. McClure (580) 248-4675 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Jack Brown (918) 581-8211 OBA Communications Committee Meeting; 12:30 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Douglas Dodd (918) 591-5316 OBA Young Lawyers Division Board of Directors Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Molly Aspan (918) 594-0595 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 Oklahoma Bar Foundation Meeting; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 OBA Unauthorized Practice of Law Meeting; 1:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact: Deborah Reheard (918) 689-9281
NOVEMBER 2010 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 Ruth Bader Ginsburg American Inn of Court; 5 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Donald Lynn Babb (405) 235-1611 11 OBA Closed – Veteran’s Day Observed 12 OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800 17 – 19 OBA 106th Annual Meeting; Crowne Plaza Hotel, Tulsa 25 – 26 OBA Closed – Thanksgiving Day Observed 10
For more events go to www.okbar.org/calendar The Oklahoma Bar Association’s official website:
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Oklahoma Bar Association
table of
contents October 16, 2010 • Vol. 81 • No. 28
page 2291 Events Calendar 2294 Index to Court Opinions 2295 Supreme Court Opinions 2322 Court of Criminal Appeals Opinions 2352 Disposition of Cases Other Than by Publication 2362 2011 Committe Sign-Up Form 2363 Annual Meeting 2377 OBA Resolutions 2387 OBA Board of Governors Vacancies
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Index To Opinions Of Supreme Court 2010 OK 71 IN THE MATTER OF THE REINSTATEMENT OF: CHARLA REITER MONTGOMERY, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD-5600..................................................................... 2295 2010 OK 72 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. MERL ALAN WHITEBOOK, Respondent. SCBD No. 5579................................... 2297 2010 OK 69 IN THE MATTER OF BTW, Deprived child under the age of eighteen (18) years KIM L. WEBSTER Appellant v. STATE OF OKLAHOMA ex rel. HOLLIS E. THORP, District Attorney of Woodward County; BTW, a Deprived Child; and BETTY WARD, Foster Parent Appellees No. 106,865................................................................................ 2304 2010 OK 70 IN THE MATTER OF THE APPLICATION OF SYLVIA MCCORMICK SPILMAN FOR EXPUNGEMENT AND SEALING OF RECORDS. SYLVIA MCCORMICK SPILMAN, Petitioner, v. OKLAHOMA BAR ASSOCIATION, Respondent. No. 108,544........... 2314
Index To Opinions Of Court of Criminal Appeals 2010 OK CR 22 STATE OF OKLAHOMA, Appellant, v. JOHNNY Q. SITTINGDOWN, Appellee. Case No. S-2009-755......................................................................................................... 2322 2010 OK CR 23 CARLOS CUESTA-RODRIGUEZ, Appellant -vs- STATE OF OKLAHOMA, Appellee Case No. D-2007-825......................................................................................... 2325
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At Work The Oklahoma Bar Journal
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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 71 IN THE MATTER OF THE REINSTATEMENT OF: CHARLA REITER MONTGOMERY, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD-5600. October 12, 2010 PROCEEDING FOR REINSTATEMENT TO THE OKLAHOMA BAR ASSOCIATION ¶0 Attorney seeks reinstatement to the Oklahoma Bar Association following her suspension from the practice of law on September 18, 2000 for nonpayment of dues and noncompliance with Mandatory Continuing Legal Education. At that time, she was not under investigation for any ethical violation and has not otherwise been disciplined or disbarred. Petitioner was admitted to practice in 1995 and practiced law in Oklahoma for ten months before leaving Oklahoma. REINSTATEMENT GRANTED COSTS AND PAYMENT OF DUES AND PENALTIES IMPOSED Charla Reither Montgomery, Dallas, Texas, Pro Se. Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Respondent. HARGRAVE, J. ¶1 Petitioner, Charla Reither Montgomery, was admitted to the Oklahoma Bar Association (OBA) in September 1995. Petitioner practiced law in the State of Oklahoma for ten months. In 1996, Petitioner moved from the State of Oklahoma to Fort Worth, Texas. Montgomery was later employed by Affiliated Computer Services (ACS). She is currently employed by Sterling Commerce in Irving, Texas. Her employment has consisted of being senior contract negotiator, and later as supervisor and senior manager in the software licensing department. ¶2 Evidence presented before the Professional Responsibility Tribunal showed that her job duties required her to draft and negotiate complex agreements. Her employment also Vol. 81 — No. 28 — 10/16/2010
required her to negotiate contract terms and details with contract administrators, negotiators, and managers of other companies. She has managed a group of negotiators and managed contract assignments. She reviewed contracts to determine if they were in compliance with corporate business and legal policies, and also worked on contract language and helped with open issues. She conducted some legal research, but reported to attorney supervisors for guidance and for legal opinions on legal issues. The fully negotiated contracts would be sent to attorneys in the companies for approval. Montgomery’s work involved following the policies of the company, leaving legal issues to be resolved by attorneys. Testimony presented at the hearing showed that Petitioner did not handle legal issues. ¶3 Petitioner was stricken from the roll of attorneys of the Oklahoma Bar Association for nonpayment of dues and noncompliance with Mandatory Continuing Legal Education. Evidence was presented at the hearing before the Professional Responsibility Tribunal that she was experiencing family issues at the time and she put herself and her legal career on the backburner and failed to do what was necessary to maintain her licence. Montgomery has never been disbarred from the Oklahoma Bar Association or any other state or federal bar, and has not resigned pending investigation or disciplinary proceedings from the Oklahoma Bar Association or any other state or federal bar. ¶4 Petitioner has not had any involvement with the Client’s Security Fund of the Oklahoma Bar Association. Petitioner also provided evidence as to the good moral character necessary to be admitted to the Oklahoma Bar Association as an active member, and she provided evidence that she is current in her Mandatory Continuing Legal Education. The PRT unanimously found that Montgomery had met the prerequisites for reinstatement by clear and convincing evidence, and the Oklahoma Bar Association has asked that we accept that recommendation. ¶5 This Court exercises original and exclusive jurisdiction in bar reinstatement proceedings. In
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re Reinstatement of Brown, 1996 OK 95, ¶ 14, 925 P.2d 44, 49. Although the PRT’s recommendations are afforded great weight, they are advisory only, inasmuch as this Court exercises de novo review. Id. ¶6 Rule 11.5 of the RGDP requires the PRT to make specific findings regarding (1) “[w]hether or not an applicant possesses the good moral character which would entitle him to be admitted to the Oklahoma Bar Association,” (2) “[w]hether or not an applicant has engaged in the unauthorized practice of law during the period of suspension,” and (3) “[w]hether or not an applicant possesses the competency and learning in the law required for admission to practice law in the State of Oklahoma.” ¶7 In the present matter, Montgomery met the first requirement by testimony presented before the Professional Responsibility Tribunal by three separate witnesses who testified as to her competency and her moral character. She has not been shown to have committed any crimes and it is apparent that she has been, at all times, an upstanding member of the community. ¶8 Next, we must address whether Petitioner has engaged in unauthorized practice of law. This Court has held that the practice of law is “the rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent.” R.J. Edwards, Inc. V. Hert, 1972 OK 151, ¶20, 504 P.2d 407. In the R.J. Edwards case, municipal bond marketers and their agents allegedly engaged in the unlawful practice of law. This Court found that the marketers merely reproduced forms prepared by the Attorney General, furnished them to school districts, and filled them out according to the directions set out in the Attorney General’s handbook. This Court found that such activity was clerical in nature and the marketers were not acting as attorneys. At ¶28 this Court held: To the extent that the defendants merely filled in the uniform forms prescribed by the Attorney General, they apparently acted as an amanuensis, secretary, or clerk for that attorney. The record before us does not show that this called for the determination of questions involving legal skill, or constituted the practice of law. ¶9 In the present matter Montgomery testified unequivocally that she had not engaged in 2296
the unauthorized practice of law. The Bar’s investigator testified that unauthorized practice of law was not an issue in this matter and evidence provided by the Texas Bar Association shows that the work conducted by Montgomery was not considered the practice of law in Texas. All of Montgomery’s witnesses testified that she never held herself out as an attorney and all legal issues were overseen by the legal departments in both companies. ¶10 Montgomery’s work, from evidence presented before the PRT, is not what is considered the practice of law in Oklahoma. It was business oriented and many nonlawyers conducted these contract negotiations as well. All legal matters were handled by the legal departments of her employers. Therefore, Montgomery has shown by clear and convincing evidence that she has not engaged in unauthorized practice of law. ¶11 Finally, Montgomery testified that she has become reacquainted with the rules of professional responsibility, has reviewed Legislative Today Primer, has tried to keep abreast of the law relating to her job, and has read the Oklahoma Bar Journal for the past year. She further testified that she has taken continuing legal education courses. Montgomery’s witness testified as to her legal competency. Montgomery also recently attended 12 hours of Oklahoma continuing legal education including one hour of ethics. Rule 11.5 requires evidence that the applicant possesses the competency and learning in the law for readmission to the practice of law in the State of Oklahoma. Montgomery has shown that she has met the requirements for reinstatement to the Oklahoma State Bar Association. We therefore reinstate Charla Reiter Montgomery to membership in the Oklahoma Bar Association upon showing that Petitioner has remitted the amount of $715.25, which constitutes full payment of the costs incurred in this matter as allowed under 5O.S. 2001, Ch.1, App. 1-A, as well as $1,175.00, which consists of dues and penalties for 1999 and 2000, and this year’s current bar dues. REINSTATEMENT GRANTED COSTS AND PAYMENT OF DUES AND PENALTIES IMPOSED ¶12 CONCUR: EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WATT, WINCHESTER, COLBERT, REIF, JJ.
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2010 OK 72 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. MERL ALAN WHITEBOOK, Respondent. SCBD No. 5579. October 12, 2010 ORIGINAL PROCEEDING FOR ATTORNEY DISCIPLINE ¶0 The Oklahoma Bar Association filed a complaint against the respondent alleging violations of rules 1.1, 1.3, 1.4, 1.5, 1.15, 1.16, 8.1(b), and 8.4(a), (c), and (d) of the Oklahoma Rules of Professional Conduct, 5 O. S.2001, ch. 1, app. 3-A, and rules 1.3 and 5.2 of the Rules Governing Disciplinary Proceedings, 5 O.S.2001, ch. 1, app. 1-A. The respondent did not file a response to the complaint. Pursuant to rule 6.4 of the Rules Governing Disciplinary Proceedings, the Professional Responsibility Tribunal deemed the allegations in the complaint to be admitted by the respondent and recommended that he be suspended from the practice of law for two years and one day and ordered to pay the costs of the proceedings. RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY; ORDERED TO PAY COSTS. Ted D. Rossier, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant. TAYLOR, V.C.J. ¶1 The Oklahoma Bar Association (OBA), filed a complaint against attorney Merl Alan Whitebook (Whitebook). The OBA alleges in four counts that Whitebook violated the Oklahoma Rules of Professional Conduct, 5 O. S.2001, ch. 1, app. 3-A (ORPC), and the Oklahoma Rules Governing Disciplinary Proceedings, 5 O.S.2001, ch. 1, app. 1-A (RGDP). Whitebook did not file an answer to the complaint as required by rule 6.4 of the RGDP. ¶2 On October 20, 2009, the Professional Responsibility Tribunal (PRT), conducted a hearing. Whitebook failed to appear. The PRT found that Whitebook had received notice of the charges against him, and that the charges were deemed admitted based on Whitebook’s failure to respond to the complaint. The PRT recommended that Whitebook be suspended Vol. 81 — No. 28 — 10/16/2010
from the practice of law for two years and one day and ordered to pay the costs of the disciplinary proceeding. I. STANDARD OF REVIEW ¶3 In bar disciplinary proceedings, this Court exercises its constitutional, nondelegable power to regulate the practice of law and legal practitioners. State ex rel. Okla. Bar Ass’n v. Bolton, 1994 OK 53, ¶ 15, 880 P.2d 339, 344. This Court decides whether misconduct has occurred and, if so, the appropriate discipline to be imposed. State ex rel. Okla. Bar Ass’n v. Todd, 1992 OK 81, ¶ 2, 833 P.2d 260, 261. The burden of proof is by clear-and-convincing evidence. State ex rel. Okla. Bar Ass’n v. Rogers, 2006 OK 54, ¶ 9, 142 P.3d 428, 432. In our de novo review, this Court is not bound by the PRT’s findings of fact, its view of the evidence, its view of the credibility of witnesses, or its recommendations of discipline. Todd, 1992 OK 81 at ¶ 2, 833 P.2d at 261. II. COUNT I ¶4 The OBA alleges the following facts in count one of the complaint. About June 29, 2007, a client retained Whitebook to handle the probate of an estate and paid Whitebook $1,000.00 as a retainer fee. Whitebook initially performed some work on the case but ceased further work some time in October of 2007.1 The client attempted to contact Whitebook multiple times. On one or two occasions when the client communicated with Whitebook he vaguely promised to complete the probate. ¶5 The client was forced to retain substitute counsel, and the probate was completed about November 5, 2008, at considerable additional expense and hardship on the family. Whitebook has not refunded the unearned portion of the retainer. III. COUNT II ¶6 The OBA alleges the following in count two of the complaint. About July 9, 2008, a client hired Whitebook to handle a probate of an estate and paid Whitebook an $800.00 retainer fee. As of November 9, 2009, Whitebook had failed to take any action on the probate. The client made multiple attempts at communicating with Whitebook which were unsuccessful. Some time after April 8, 2009, the client communicated with Whitebook. Whitebook indicated he was not feeling well but would get to the probate as soon as possible. Whitebook still failed to perform any services for the client. The client
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requested that Whitebook refund the retainer fee, but Whitebook has failed to do so. IV. COUNTS III AND IV ¶7 In count three, the OBA alleges the following facts. On July 17, 2008, the OBA received the grievance from the client in count one. On July 21, 2008, the OBA sent Whitebook a letter advising him of the grievance and requesting that he respond to the allegations within twenty days. Having failed to receive a response from Whitebook, the OBA sent Whitebook a letter by certified mail on August 18, 2008, asking Whitebook to respond within five days. Whitebook signed for the certified letter on August 19, 2008, but did not respond. The Professional Responsibility Commission issued a subpoena duces tecum for appearance at an investigative deposition. Whitebook appeared at the hearing held on October 2, 2008, but failed to give an adequate reason for his failure to respond to the OBA’s investigation.2 ¶8 In count four, the OBA alleged the following facts. On January 12, 2009, the client in count two filed a grievance with the Tulsa County Bar Association (TCBA). Because Whitebook did not respond to the TCBA’s request for information, the grievance was forwarded to the OBA which opened a formal investigation in April of 2009. ¶9 On May 1, 2009, the OBA mailed Whitebook a letter asking him to respond to the grievance within twenty days. When Whitebook failed to respond, the OBA sent Whitebook a certified letter on May 22, 2009. Whitebook did not sign for the certified letter and, on July 6, 2009, was personally served with a subpoena to appear for an investigative deposition on July 9, 2009. Whitebook did not appear at the deposition. On July 9, 2009, Whitebook called the OBA and left a message that he was in Denver, Colorado, and had received the subpoena on July 8. The OBA’s investigator tried unsuccessfully to return the call. Contradicting Whitebook’s statement that he was served on July 8, the process server’s affidavit shows that Whitebook was personally served at 9:25 p.m. on July 6, 2009, in Bartlesville, Oklahoma. On July 20, 2009, the OBA’s investigator sent Whitebook an email informing him that he was “still obligated under our subpoena” and that he needed to contact her as soon as possible. 2298
V. ADDITIONAL FACTS ¶10 The OBA filed the complaint in this proceeding and a copy was mailed to Whitebook by certified mail, return receipt requested and restricted delivery, to his official OBA roster address on September 4, 2009. The return receipt shows that Whitebook signed for the complaint at 4:36 p.m. on September 10, 2009. Whitebook did not file a response to the complaint. The certificate of mailing shows, on September 10, 2009, the OBA sent Whitebook a copy of the notice that the hearing before the PRT was set for 9:30 a.m. on October 20, 2009, at the OBA conference room in Oklahoma City, Oklahoma. Whitebook did not appear at the hearing held on the set date. On November 9, 2009, the OBA filed a motion to deem the allegations in the complaint to be admitted. Even though a copy was mailed to Whitebook, he did not respond to the motion. ¶11 On October 20, 2009, the PRT held a hearing and took evidence. Whitebook did not appear. Even though the motion to deem the allegations in the complaint to be admitted had yet to be filed in the Supreme Court clerk’s office, the PRT had the motion before it at the hearing and considered the motion. At the hearing, the PRT accepted documents into evidence and heard the testimony of the OBA’s investigator. The investigator’s testimony concerned only counts three and four. ¶12 The PRT filed its report on November 13, 2009, in which it accepted the motion to deem the allegations admitted. It also found that Whitebook had properly been served with notice but had wholly failed to respond. Lastly, the PRT recommended that Whitebook be suspended from the practice of for two years and one day and ordered to pay the costs of the proceeding. ¶13 On November 13, 2009, the OBA filed its application to assess costs against Whitebook in the amount of $1,226.51. On November 20, 2009, this Court filed a briefing schedule with the OBA’s brief being due on December 4, 2009, Whitebook’s brief due within fifteen days thereafter, and the OBA’s reply brief due ten days after Whitebook’s was filed. ¶14 The OBA filed its brief on December 4, 2009, Whitebook did not file a brief, and the OBA waived filing a reply brief. In its brief, the OBA asserts that there is sufficient evidence for this Court’s de novo review, that Whitebook had sufficient notice to satisfy due process require-
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ments, that the PRT properly sustained the OBA’s motion to deem the allegations admitted, and that the OBA proved Whitebook’s misconduct by clear and convincing evidence and supported its recommendation of suspension of two years and a day with authority and argument. VI. ANALYSIS ¶15 When a lawyer fails to file an answer to the complaint, as Whitebook has failed to do, the factual charges in the complaint are deemed admitted. RGDP rule 6.4 (“In the event the respondent fails to answer, the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed.”). Rule 6.4 allows the OBA to meet its burden of proof without unnecessarily increasing the cost of the proceedings. ¶16 As to counts one and two, the OBA alleges Whitebook has violated rules 1.1,3 1.3,4 and 1.4,5 1.5,6 1.15,7 1.16,8 and 8.4(a), (c), and (d) of the ORPC and rule 1.3 of the RGDP.9 As to counts three and four, the OBA alleges Whitebook has violated rules 8.1(b)10 and 8.4(a) and (c) of the ORPC and rules 1.3 and 5.211 of the RGDP. ¶17 The facts alleged in counts one and two of the complaint which are deemed admitted under rule 6.4 support the following findings: (1) Whitebook failed to provide competent representation to both of these clients as required by rule 1.1 of the ORPC; (2) Whitebook failed to act with diligence in representing these clients as required by rule 1.3 of the ORPC; (3) Whitebook failed to keep these clients reasonably inform and failed to promptly comply with reasonable requests for information as required by rule 1.4(a)(3) and (4) of the ORPC; and (4) Whitebook failed to charge the client referenced in count two a reasonable fee as required by rule 1.5 of the ORPC, but the allegations in count one do not show that Whitebook failed to provide services in the amount of the retainer fee.12 ¶18 We address next the allegations that Whitebook violated rules 1.15 and 1.16 of the ORPC. Rule 1.15 addresses the safekeeping of a client’s property entrusted to a lawyer by segregating the property. Under rule 1.15, a lawyer may be required to maintain a trust account and deposit a client’s money in the account. The OBA does not allege in the complaint that Whitebook failed to deposit the Vol. 81 — No. 28 — 10/16/2010
retainer fees in a trust account or otherwise failed to isolate the fees from his other funds. The alleged facts, if deemed admitted, are insufficient to show that Whitebook violated rule 1.15 of the ORPC. ¶19 Rule 1.16 of the ORPC addresses a lawyer’s obligations and methods for declining and terminating representation. The complaint does not allege that Whitebook declined representation, that his representation was terminated, or that he failed to surrender papers and property to which his clients’ were entitled. The OBA has failed to the show Whitebook violated rule 1.16 of the ORPC. ¶20 Rule 8.1(b) of the ORPC requires a lawyer, when requested by the OBA, to respond to a demand for information regarding a grievance. Rule 5.2 of the RGDP requires a lawyer to answer within twenty days after the service of a grievance unless additional time is granted by the OBA. Here Whitebook filed his answer to the first grievance only after being subpoenaed by the OBA and did not file an answer to the second grievance in violation of rule 8.1(b) of the ORPC and rule 5.2 of the RGDP. VII. FINDINGS AND CONCLUSIONS ¶21 A lawyer accused of misconduct must be afforded due process: the lawyer must be given notice of the charges and afforded an opportunity to be heard. State ex rel. Okla. Bar Ass’n v. Seratt, 2003 OK 22, ¶ 7, 66 P.3d 390, 392. Whitebook received notice by mail, certified mail, and personal service of every stage of the proceeding and of the charges against him, and Whitebook was afforded an opportunity to respond to the grievances and to the complaint, to attend the PRT hearing, and to file a brief with this Court. He chose to attend only one deposition and did not otherwise avail himself of opportunities to be heard. We find that Whitebook received sufficient notice and was afforded an opportunity to be heard so that he received his right to due process. ¶22 The Court finds that the record is sufficient for our de novo review of the allegations against Whitebook. State ex rel. Okla. Bar Ass’n v. Shomber, 2009 OK 95, ¶ 28, 227 P.3d 157, 162163. Based on this record, we find that Whitebook violated rules 1.1, 1.3, 1.4, 1.5, and 8.1(b) of the ORPC and Rule 5.2 of the RGDP. The record is insufficient to support a finding of a violation of rules 1.15 and 1.16 of the ORPC, and rule 8.4 of the ORPC and rule 1.3 of the RGDP are inapplicable.
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¶23 The goal of discipline in bar proceedings is not to punish but to protect the public and the integrity of the judicial system. State ex rel. Okla. Bar Ass’n v. Beasley, 2006 OK 49, 142 P.3d 410. “The integrity of the judicial system demands that lawyers, who are officers of the court, respect its authority.” State ex rel. Okla. Bar Ass’n v. Giger, 2003 OK 61, ¶ 34, 72 P.3d 27, 38. This Court’s authority in bar disciplinary proceedings extends to the rules promulgated by this Court which govern the proceedings. A person who holds a bar license is subject to these rules and is required to promptly and adequate respond to allegations of misconduct when lawfully requested to do so. ¶24 In Beasley, 2006 OK 49, 142 P.3d 410, the lawyer, who admittedly had a substance abuse problem, was charged in six grievances generally of failing to perform legal services for which he was paid, failing to communicate with clients, and failing to refund unearned fees. He did not respond to the grievance, did not respond to the complaint, and did not participate in the proceedings except to appear at the PRT hearing. At the hearing rather than oppose the OBA’s motion to deem the allegations admitted, the lawyer stipulated to the motion. This Court suspended the lawyer from the practice of law for two years and a day. ¶25 Similarly, in State ex rel. Okla. Bar Ass’n v. Phillips, 1990 OK 4, 786 P.2d 1242, the lawyer was suspended from the practice of law for three years generally for neglecting a client matter, failing to act with reasonable diligence, failing to communicate with a client, failing to respond to the OBA’s request for information concerning the grievances, and failing to appear at dispositions and the hearing. The lawyer did not respond to the complaint, file a brief, or otherwise defend his right to practice law. Both Beasley and Phillips, guide us in determining the proper discipline in this proceeding. ¶26 We find that Whitebook’s neglect of his clients’ matters and his failure to communicate with his clients warrant discipline. Whitebook’s almost total disregard for this Court’s authority as exhibited by his failure to respond to a grievance, failure to appear for a deposition for which he was subpoenaed, failure to answer the complaint, and failure to file a brief warrant additional discipline. When a lawyer places so little value on his license to practice law and shows no desire to protect his license, he should be forced to appear before this Court pursuant to rule 11 of the RGDP to show why 2300
he should again be allowed to practice law. Thus, we find that the appropriate discipline is suspension from the practice of law for two years and a day. Merl Alan Whitebook is ordered to comply with rule 9 of the RGDP. Pursuant to rule 6.16 of the RGDP, costs are assessed in the amount of $1,226.51 to be paid within ninety days that this opinion becomes final, and reinstatement is conditioned on payment of these costs. RESPONDENT SUSPENDED FROM THE PRACTICE OF LAW FOR TWO YEARS AND ONE DAY; ORDERED TO PAY COSTS. Edmondson, C.J., Taylor, V.C.J., and Hargrave, Watt, Winchester, and Colbert, JJ., concur. Kauger, J., (by separate writing) concurs in part, dissents in part. Reif, J., disqualified. 1. In a deposition, Whitebook testified that he worked on the case at least until January of 2008. The OBA’s questions in the deposition indicate that the client fired Whitebook in March of 2008 and retained other counsel. 2. In the deposition, Whitebook admitted that he received the letters from the OBA but he “panicked,” and “[ j]ust froze up” when he received them. 3. Rule 1.1 of the ORPC provides: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. 4. Rule 1.3 of the ORPC provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.” 5. Rule 1.4 of the ORPC provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 6. Rule 1.5(a) of the ORPC provides in part: “A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. . . .” 7. Rule 1.15 of the ORPC governs the requirements to segregate a client’s property and to maintain a trust account. 8. Rule 1.16(c) and (d) provide: (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expenses that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. 9. In State ex rel. Okla. Bar Ass’n v. Wilcox, 2009 OK 81, n. 9, 227 P.3d 642, 651 n.9, regarding rule 8.4 of the ORPC, we stated: “This rule does not by itself mandate a lawyer’s conduct but defines professional misconduct for which discipline is appropriate.” Also in the same note 9, regarding rule 1.3 of the RGDP, we stated: “Rule 1.3 does not mandate lawyer conduct. Rule 1.3 subjects a lawyer to discipline for a violation of rules mandating lawyer conduct.” Rules 8.4 and 1.3 are the authorities which allow a lawyer to be disciplined and are not provisions mandating a lawyer’s professional conduct. 10. Rule 8.1(b) of the ORPC provides in part: “[A] lawyer . . . in connection with a disciplinary matter, shall not . . . knowingly fail to
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respond to a lawful demand for information from an adissions or disciplinary authority. . . .” 11. Rule 5.2 of the RGDP provides in part: “The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline.” 12. The complaint acknowledges that Whitebook performed some services for the client. In a deposition, Whitebook testified and produced documents (the OBA did not make the documents part of the record) that he had done considerable work on the probate and was continuing working on the probate at the time of the deposition.
KAUGER, J, concurring in part, dissenting in part: ¶1 The complaint filed by the Oklahoma Bar Association (Bar Association) on September 4, 2009, states that the second grievance was originally filed with the Tulsa County Bar Association (TCBA) on January 12, 2009. Apparently, when the lawyer did not respond to the TCBA inquiries, the TCBA forwarded the matter to the Bar Association for a formal investigation on April 8, 2009. ¶2 The record reflects that the TCBA sent a letter to the lawyer on January 19, 2009, which provides in pertinent part: Dear Mr. Whitebook: Enclosed is a copy of a grievance alleging professional misconduct filed with the Tulsa County Bar Association Professional Responsibility Committee. Please submit a written response within twenty (20) days of the date hereof. Your failure to respond timely may result in the referral of this grievance to the General Counsel of the Oklahoma Bar Association for further action. As you may know, the Supreme Court delegated to the Oklahoma Bar Association General Counsel the duty to investigate grievance filed against Oklahoma lawyers. The Tulsa Professional Responsibility Committee has been asked by the OBA General Counsel to assist with the investigation of grievances filed with the TCBA against lawyers in Northeastern Oklahoma. Our role is investigative only. Our more than 60 volunteer members investigate and report their recommendations to the Committee as a whole. The Committee can take one of two actions: dismiss the grievance, in which case no further action will be taken; or refer the matter to the OBA General Counsel for further action, investigations, and possible disciplinary action by the OK Supreme Court. (Emphasis supplied.) Vol. 81 — No. 28 — 10/16/2010
¶3 Additionally, the TCBA website (www. tulsabar.com) contains a link which provides: “Problems with a Lawyer?” The website also states: The Tulsa County Bar Association cannot give you any advice regarding your attorney’s conduct. However, the TCBA Professional Responsibility Committee will investigate complaints involving ethical concerns. All complaints must be submitted in writing and signed. . . . If the attorney is in Tulsa County you may download the Grievance form using the link to the right under Related Links. If the attorney is NOT located in Tulsa County you must call the State Bar of Oklahoma at the numbers listed below or visit their website to obtain the correct form. (Emphasis in original). ¶4 The original jurisdiction of the Oklahoma Supreme Court extends to a general superintending control over all inferior courts and all agencies, commissions and boards created by law.1 It is the Supreme Court’s nondelegable, constitutional responsibility to regulate discipline of the practitioners of law and the duty is vested solely in this department of government.2 The Supreme Court, to aid in its duty of administering justice in Oklahoma created the Oklahoma Bar Association,3 as an official arm of the Court.4 Attorney’s licensed in Oklahoma are a part of the judicial system and are officers in its courts.5 ¶5 The Court has original and exclusive jurisdiction in all matters involving administration of persons to practice law in this State and to discipline for cause, any and all persons licensed to practice law in Oklahoma.6 As part of this jurisdiction the Court, through the Board of Governors and the Professional Responsibility Commission, employs the General Counsel of the Bar Association7 whose duties of office include investigation of all matters involving possible misconduct.8 The Court approves over a million dollar budget funded from the private dues paid by the Oklahoma Bar Association members to enable the General Counsel to carry out those duties. Extensive procedures for investigation of grievances against lawyers as well as for investigating misconduct by the General Counsel, when alleged to occur, have been established to ensure that justice is administered equally and fairly to all lawyers in Oklahoma in a central-
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ized location are found in the Rules Governing Disciplinary Proceedings.9 ¶6 Rule 3.2 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2010 Ch. 1, App. 1-A, Rule 3.2 provides in pertinent part: The General Counsel of the Oklahoma Bar Association shall have the following powers and duties in the area of discipline under these Rules: . . . (i) To use the services of other members of the Oklahoma Bar Association (including, but not limited to, any state or county Bar grievance committee) in carrying out the duties imposed upon the General Counsel concerning the general supervision of all disciplinary matters affecting lawyers. We explained in State ex. rel. Oklahoma Bar Association v. Downes, 2005 OK 33, ¶26, 121 P.3d 1058, that, Rule 3.2(i) does not allow a bar member or county Bar Association to determine that a formal complaint should not be initiated or to impose discipline, even by private reprimand.10 We also said that after a bar member or state or county bar committee investigates a grievance, it should submit its report as to every grievance or complaint, together with supporting documentation, to the General Counsel for presentation to the Commission.11 According to the TCBA letter, it does not interpret either Downes or Rule 3.2 the way we do. I would be most interested in determining how many cases have been dismissed by the Tulsa County Bar Disciplinary Committee since Downes was promulgated in 2005. ¶7 I have grave concerns regarding this rule and its potential misuse. I thought those concerns might have been diminished when we decided Downes, but today I would re-visit the issue and strike Rule 3.2(i) altogether as unconstitutional since its promulgation. Allowing a County Bar Association to screen grievances and to decide whether such grievances may be dismissed or forwarded to the General Counsel should not be authorized. Such an interpretation fails to provide even-handed due and equal process to Oklahoma lawyers.12 For 76 counties in Oklahoma we have a neutral investigator; for Tulsa County, investigations are being conducted by a lawyer’s peers and colleagues. Rule 3.2 provides special treatment for Tulsa County lawyers. This treatment may inure to their benefit or to their detriment — either way it is disparate. 2302
¶8 The respondent lawyer in this cause does not complain of the grievance being forwarded by the TCBA.13 Nevertheless, one of the main factors for determining the respondent’s discipline is the fact that he was non-responsive to the OBA investigations. Most lawyers in Oklahoma would probably be surprised to discover that their County Bar Association may be investigating and questioning them. Had he been contacted initially by the General Counsel’s office of the Bar Association, his responsiveness may have been very different. ¶9 The discipline recommended by the Professional Responsibility Commission, the Bar Association and this Court may or may not be comparable to similar situated previous disciplined lawyers. For instance, in the deposition of the respondent lawyer taken on October 2, 2008, the assistant general counsel of the Oklahoma Bar Association appeared to be very sympathetic to his depression, Crohn’s disease, and possible onset of prostate cancer. He was asked to elaborate on his health issues, and the Bar Association’s lawyer even offered to provide assistance and/or help regarding these health issues.14 Perhaps this cause should have been brought under Rule 10.15 ¶10 I do concur that discipline should be imposed. However, I cannot sanction the continuation of allowing a County Bar Association to screen and dismiss grievances on behalf of the General Counsel without referring them to the General Counsel. The TCBA letter suggests that it has continued this practice in contradiction to State ex. rel. Oklahoma Bar Association v. Downes, 2005 OK 33, ¶26, 121 P.3d 1058. Again, I would like to know how many causes have been dismissed, if any, since 2005. I would strike Rule 3.2 (i) of the Rules Governing Disciplinary Proceedings, 5 O.S. 2010 Ch. 1, App. 1A, and prohibit the General Counsel from delegating the duty to investigate complaints to anyone outside of the office of the General Counsel. 1. The Oklahoma Constitution art. 7, §4 provides in pertinent part: . . .The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; except that the Court of Criminal Appeals shall have exclusive appellate jurisdiction in criminal cases until otherwise provided by statute and in the event there is any conflict as to jurisdiction, the Supreme Court shall determine which court has jurisdiction and such determination shall be final. The original jurisdiction of the Supreme Court shall extend to a general superintendent control over all inferior courts and all Agencies, Commissions and Boards created by law. . . . 2. Title 5 O.S. 2001 §13; In re Reinstatement of Pacenza, 2009 OK 9, ¶7, 204 P.3d 58, State ex rel. Oklahoma Bar Ass’n v. Farrant, 1994 OK 13, ¶13, 867 P.2d 1279.
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3. The Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S. 2010 Ch. 1, App. 1, Preamble provides: In the public interest, for the advancement of the administration of justice according to law, and to aid the courts in carrying on the administration of justice; to foster and maintain on the part of those engaged in the practice of law high ideals of integrity, learning, competence and public service, and high standards of conduct; to provide a forum for the discussion of subjects pertaining to the practice of law, the science of jurisprudence, and law reform; to carry on a continuing program of legal research in technical fields of substantive law, practice and procedure, and to make reports and recommendations thereto; to prevent the unauthorized practice of law; to encourage the formation and activities of local bar associations; to encourage practices that will advance and improve the honor and dignity of the legal profession; and to the end that the responsibility of the legal profession and the individual members thereof, may be more effectively and efficiently discharged in the public interest, and acting within the police powers vested in it by the Constitution of this State (Okla. Const. (1907), Art. IV, Section 1, Art. VII (1967) Section 1, 4; In re Integration of State Bar of Oklahoma, 185 Okla. 505, 95 P.2d 113 (1939); In re Bledsoe, 186 Okla. 264, 97 P.2d 556 (1939); Ford v. Board of Tax Roll Corrections of Oklahoma County, 431 P.2d 423 (Okla.1967)). The Supreme Court of Oklahoma does hereby create and continue an association of the members of the Bar of the State of Oklahoma to be known as the Oklahoma Bar Association, and promulgates the following rules for the government of the Association and the individual members thereof. 4. Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, ¶4, 624 P.2d 1049. The Rules Creating and Controlling the Oklahoma Bar Association, 5 O.S. 2010 Ch. 1, App. 1,Art. 1, §1 provides: The Oklahoma Bar Association is an official arm of this Court, when acting for and on behalf of this Court in the performance of its governmental powers and functions. 5. The Rules Creating and Controlling the Oklahoma Bar Association, 5. O.S. 2010 Ch. 1, App. 1, Art. 1, §2 provides: Attorneys admitted to practice law in Oklahoma are a part of the judicial system of Oklahoma and officers of its courts. 6. Smith v. Brock, 1975 OK 27, ¶15, 532 P.2d 843; The Rules Governing Disciplinary Proceedings, 5 O.S. 2010 Ch. 1, App. 1-A, Rule 1.1, Declaration of Jurisdiction provides: This Court declares that it possesses original and exclusive jurisdiction in all matters involving admission of persons to practice law in this State, and to discipline for cause, any and all persons licensed to practice law in Oklahoma, hereinafter referred to as lawyers, and any other persons, corporations, partnerships, or any other entities (hereinafter collectively referred to as “persons”) engaged in the unauthorized practice of law. This Court further declares that a member of the Bar of this State may not take unto himself any office or position or shroud himself in any official title which will place him beyond the power of this Court to keep its roster of attorneys clean. In the exercise of the foregoing jurisdiction, this Court adopts and promulgates the following rules which shall govern disciplinary and unauthorized practice of law proceedings. 7. The Rules Governing Disciplinary Proceedings, 5 O.S. 2010 Ch. 1, App. 1-A, Rule 3.1 provides: The Board of Governors with the concurrence of the Professional Responsibility Commission shall employ and discharge the General Counsel of the Oklahoma Bar Association. 8. The Rules Governing Disciplinary Proceedings, 5 O.S. 2010 Ch. 1, App. 1-A, Rule 3.2 provides: The General Counsel of the Oklahoma Bar Association shall have the following powers and duties in the area of discipline under these Rules: (a) With the approval of the Commission, to employ and supervise staff needed for the performance of the duties of the office; (b) To investigate all matters involving possible misconduct or alleged incapacity of any lawyer, or the unauthorized practice of law, called to the General Counsel’s attention by complaint or otherwise; (c) To report to the Commission the results of investigations made by or at the direction of the General Counsel, and to make recommendations to the Commission concerning the institution of formal complaints for alleged misconduct or personal incapacity of lawyers; (d) To prosecute all proceedings under these Rules; (e) To appear at hearings conducted with respect to petitions for reinstatement of suspended or disbarred lawyers or lawyers suspended for incapacity to practice law, to cross-examine wit-
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nesses testifying in support of such petitions, and to marshal and present available evidence, if any, in opposition thereto; (f) To file with the Supreme Court certificates of conviction of lawyers for crimes; (g) To maintain permanent records of all active and inactive discipline and disability matters, subject to the expungement requirements of Rule 3.2(h), as follows: (1) All inactive disciplinary matters where a formal complaint has been filed with the Supreme Court, shall be maintained indefinitely; (2) All inactive disciplinary matters where a member has resigned pending disciplinary proceedings or pending investigation which might result in disciplinary proceedings, shall be maintained indefinitely; (3) All inactive disciplinary matters where a private reprimand has been issued by the Professional Responsibility Commission shall be maintained indefinitely; (4) All inactive disciplinary matters where the General Counsel’s Office has investigated a grievance and reported the grievance to the Professional Responsibility Commission or its predecessor for action, shall be maintained for a period of three (3) years from the date the grievance is made inactive; (5) All inactive disciplinary matters where the General Counsel has disposed of the grievance by informal procedures, shall be maintained for a period of three (3) years from the date the grievance is made inactive. (h) To expunge after three (3) years all records of the Commission relating to grievances terminated by dismissal, except that the General Counsel shall retain a docket showing the names of each respondent and complainant, the final disposition, and the date all records relating to the matter were expunged, except that the General Counsel may, prior to the expiration of the three (3) years, apply to the Commission for an additional three (3) years which application shall be granted upon a showing of good cause and with notice to respondent; expunge other grievances as directed by the Commission pursuant to Rule 5.3(b). (i) To use the services of other members of the Oklahoma Bar Association (including, but not limited to, any state or county Bar grievance committee) in carrying out the duties imposed upon the General Counsel concerning the general supervision of all disciplinary matters affecting lawyers. 9. The Rules Governing Disciplinary Proceedings, 5 O.S. 2010 Ch. 1, App. 1-A, Rule 1.1 et seq. 10. In State ex. rel. Oklahoma Bar Association v. Downes, 2005 OK 33, ¶26, 121 P.3d 1058, one of the grievances filed against Downes was filed by a client initially with the TCBA and then with the OBA. On March 11, 2004, the TCBA wrote to the OBA, forwarding the complaint which had been filed with them. The letter provides in pertinent part: . . .I would advise you that on March 7, 2003, Ms. Hanger filed the referenced complaint with the Tulsa County Bar Association Professional Responsibility Committee. While it is not verbatim the identical complaint, it appears to be contained the same principal components of the complaint filed with the Tulsa County Bar Association. This complaint was. . .reported on at the December 2003 regular meeting of the Professional Responsibility Committee and was dismissed by vote of the committee. A copy of the letter informing Ms. Hanger of the declination to take further action is attached hereto. The purpose of this letter is simply to advise you of these facts. As always, our file concerning this matter is available to the Oklahoma Bar Association. I find it a bit disconcerting that a complainant would file a second complaint with the OBA after her first substantially similar claim was determined by the committee not to be forwarded to the Oklahoma Bar Association, without bringing that fact to the Bar Association’s attention. (Emphasis in original.). . . The December 10, 2003, letter which was sent to the complainant from the TCBA provides in pertinent part: . . .Thank you for bringing this matter to our attention. The Professional Responsibility Committee has investigated your complaint against the referenced attorney. This Committee only addressed grievances alleging attorney misconduct which violates the Oklahoma Rules of Professional Conduct. Although conduct of an attorney may seem otherwise inappropriate, it may not necessarily constitute a violation of the Rules. The conduct in this case was deemed not to violate those Rules and the Committee has dismissed your Complaint. Accordingly, we decline to take any further action with respect to your Complaint. . . .
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11. Also in State ex. rel. Oklahoma Bar Association v. Downes, see note 10, supra, the Bar Association wrote to the attorney a letter on March 25, 2004, which provides in pertinent part: . . .Our office is in receipt of your ‘response’ to this grievance, consisting of a cover letter and a copy of your reply to the Tulsa County Bar Association. While our office was aware of a grievance from Ms. Hanger against you being made to the Tulsa County Bar Association, we have no way of knowing if these matters are ‘in substantially similar form and content,’ as no copy of the original grievance against you has ever been furnished to this office. . . . 12. The Equal Protection Clause of the 14th Amend., § 1, U.S. Const., commands that no State shall deny due process of the law or “deny to any person within its jurisdiction the equal protection of the laws.” Oklahoma’s due process clause, Art. 2, § 7, Okl. Const., has a definitional sweep that is coextensive with its federal counterpart. Black v. Ball Janitorial Serv., Inc., 1986 OK 75, ¶8, fn.9, 730 P.2d 510, 513. 13. In another cause, State ex. rel. Oklahoma Bar Association v. Beasley, 2006 OK 49, 142 P.3d 410. The TCBA received several complaint forms against Beasley. The record contained letters by the TCBA investigators which concluded several violations of the Rules of Professional Conduct had occurred. Subsequently, the TCBA Professional Responsibility Committee voted to refer the complaints to the OBA. The TCBA sent Beasley a letter similar to the letter sent in State ex. rel. Oklahoma Bar Association v. Downes, see note 10, supra, in which they also informed Beasley that they had the authority to either vote to dismiss the action or to refer the matter to the OBA. 14. The deposition of October 2, 2008, provides in pertinent part at p.21: Q: Speaking for myself, if I had trouble getting up out of bed after a prolonged period of time, I would have some issues with depression. That’s my question to you. And the reason I’m asking that is not to invade your private life or anything like that, but we have to know these things, (a), to see if there is something present, there are some things that we can offer to assist you, to help you. Number two is that if there are those things, that might be a mitigating factor, so that’s the reason I ask the question. . . Q Okay. Would you be willing, after we’re done here, if we refer you to someone that could probably help you define that, (a), and then that could help you? Would you be willing to do that? A. Yes, sir. . . . 15. The Rules Governing Disciplinary Proceedings, 5 O.S. 2010 Ch. 1, App. 1-A, Rule 10.2 provides: Whenever it has been determined that a lawyer is personally incapable of practicing law, his license to practice shall be suspended until reinstated by order of this Court. The Rules Governing Disciplinary Proceedings, 5 O.S. 2010 Ch. 1, App. 1-A, Rule 10.1 provides: The term “personally incapable of practicing law” shall include: (a) Suffering from mental or physical illness of such character as to render the person afflicted incapable of managing himself, his affairs or the affairs of others with the integrity and competence requisite for the proper practice of law; (b) Active misfeasance or repeated neglect of duty in respect to the affairs of a client, whether in matters pending before a tribunal or in other matters constituting the practice of law; or (c) Habitual use of alcoholic beverages or liquids of any alcoholic content, hallucinogens, sedatives, drugs, or other mentally or physically disabling substances of any character whatsoever to any extent which impairs or tends to impair ability to conduct efficiently and properly the affairs undertaken for a client in the practice of law.
2010 OK 69 IN THE MATTER OF BTW, Deprived child under the age of eighteen (18) years KIM L. WEBSTER Appellant v. STATE OF OKLAHOMA ex rel. HOLLIS E. THORP, District Attorney of Woodward County; 2304
BTW, a Deprived Child; and BETTY WARD, Foster Parent Appellees No. 106,865. October 5, 2010 APPEAL FROM THE DISTRICT COURT OF WOODWARD COUNTY ¶0 The mother appeals from a post-appeal permanency/review hearing order of the District Court, Woodward County, Rick Bozarth, Judge, that provides: (1) the child is to remain in the care of the foster parent (2) for supervised visitation by the mother with child and (3) a permanency plan of long-term out-ofhome placement for the child. AFFIRMED Jami J. Fenner, Lester, Loving & Davies, P.C., Edmond, Oklahoma, for the mother, Susan K. Meinders, Office of the District Attorney of Woodward County, for the State of Oklahoma, Careylyn Stuckey Talley, Foard, Talley & Stake, P.L.L.C., Woodward, Oklahoma, for the child, D. Kent Meyers, Harvey D. Ellis, Mary H. Tolbert, Crowe & Dunlevy, P.C., Oklahoma City, Oklahoma, for the foster parent.1 Opala, J. ¶1 This appeal presses three issues: (1) whether this court’s mandate — that affirmed a 2008 trial court order — was ignored by the trial judge’s 2009 decision in a post-appeal permanency/review hearing order, (2) did the trial judge abuse his discretion when he ordered (A) the child to remain in the care of the foster parent (B) supervised visitation for the mother and (C) a change of permanency plan to longterm out-of-home child placement and (3) were the mother’s due process rights violated when the court ordered long-term foster care for the child. We answer all questions in the negative. I. ANATOMY OF THE LITIGATION ¶2 The appeal deals with the post-decisional consequence of an earlier pronouncement by this court, In the Matter of BTW.2 That case shall be referred to as BTW I. To provide continuity and assist the reader, a brief recitation of the relevant factual and procedural history leading to our earlier decision and today’s cause will be provided here. For a more complete account of the facts leading to BTW I, the reader is referred to the opinion in that cause.
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Facts and Procedure Leading to BTW I ¶3 The mother (appellant in today’s cause) adopted BTW in 1999.3 In June 2005 the mother recognized that her physical and mental abilities to function were deteriorating and that she would need hospitalization. She sought care for BTW from the individual who currently serves as the foster mother.4 Upon her return home from the hospital, mother alleged the foster mother permitted her only limited supervised visits with BTW. In response to reports of the mother’s volatile behavior toward the foster mother, BTW, and a Department of Human Services (DHS) employee, DHS became involved. In May 2006 the child was adjudicated deprived and placed in DHS custody. The agency continued the child’s placement with its foster mother. In August 2007, DHS unsuccessfully sought to terminate the mother’s parental rights.5 ¶4 Two permanency/review hearings were held. In October 2007, following the first hearing, the trial judge ordered that a different placement be found for the child, all parties to work toward a permanency plan for the child’s reunification with her mother and increased visitation with a view to allowing weekend visitations in the mother’s home within thirty days.6 ¶5 Although visitation increased, DHS did not find alternative foster placement for BTW. At the second review hearing the foster parent intervened. Following the hearing the trial judge issued an order on 15 February 2008 that again directed a change of foster-home placement, reunification for the permanency plan, and visitation between the mother and her child to continue.7 The state, child, and foster mother (the appellants in BTW I) immediately filed an emergency motion for the cessation of the mother’s visitation rights and a stay of portions of the order. The trial judge denied this motion.8 ¶6 On 25 February the appellants filed in this court an application to assume original jurisdiction, a petition for writ of prohibition, and an application for an emergency stay. The court stayed solely the requested change in foster placement.9 It assumed original jurisdiction on 18 April and issued a writ prohibiting further proceedings in the case.10 During this time, the appellants also filed in the district court motions for disqualification of the trial judge11 and reasonable efforts to return the child to the home Vol. 81 — No. 28 — 10/16/2010
no longer be required, in accordance with the terms of 10 O.S. §7003-4.6(A).12 ¶7 On 21 April the appellants sought a request to clarify whether the court’s writ of prohibition prevents the enforcement of the trial court’s order for visitation.13 Three days later DHS suspended all visitation and appellants filed an emergency motion requesting the court to construe the writ of prohibition as preventing enforcement of the visitation order. This motion was bottomed on reports of the child becoming physically sick following the most recent visitation and allegations that the mother threatened to strangle the child on an earlier weekend visit.14 The court responded by an order to permit the district court to place for hearing before a disinterested judge the appellants’ motion to discontinue visitation. Following a two-day hearing, a newly-appointed judge ruled supervised visitation to take place not more than once a week.15 The trial judge’s 19 June order noted the incidents leading to the hearing on visitation “were not as horrible as characterized by the child and her supporters nor were they as noncontroversial as was characterized by mother.”16 The court’s decision in BTW I that affirmed the district court order was issued on 16 September 2008. Facts and Proceedings Following BTW I ¶8 Before mandate issued in BTW I,17 DHS, the child, and foster parent (collectively to be known here as appellees or state) filed an emergency motion to discontinue visitation and request that disclosures of the court’s opinion to the child be limited.18 This motion was bottomed on a 3 October 2008 report provided by the child’s counselor who recommended that visitation with the mother be discontinued because of the child’s increased anxiety and deterioration.19 He also opined to the child’s attorney that informing BTW of the court’s decision would be harmful to the child.20 The parties further disagreed on visitation and on which order controlled during this period.21 Mother sought a contempt citation against DHS, alleging the latter failed to obey the order affirmed by this court.22 ¶9 The trial judge set 25 November for a regular review hearing and to entertain: (1) the state’s emergency motion to discontinue visitation and (2) its earlier motion pursuant to 10 O.S. §7003-4.6(A). The trial judge denied the movants’ latter motion sans hearing.23 On 9 February, following a three-day hearing, he
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ordered (1) the child to remain in the care of the foster parent (2) supervised visitation for mother and child and (3) a change in permanency plan from being promotive of reunification to long-term out-of-home placement. The mother appeals from this order. II. THE FEBRUARY 2008 ORDER WAS SUBJECT TO REVIEW AND MODIFICATION IF CONDITIONS WARRANT ITS CHANGE ¶10 Mother first urges the trial judge erred in his 9 February 2009 order when he failed to enforce this court’s 27 October 2008 mandate that affirmed the 2008 trial court’s ruling. According to mother, the latter order — that directed a change in foster placement, unsupervised visitation, and the goal of family reunification — was never implemented.24 Mother asserts this court’s order dissolved the temporary stay “instanter.” Neither did the intervening 19 June 2008 order — that provides for supervised visitation between mother and child once a week — relieve the trial court of its obligation to comply with this court’s decision. According to the mother, the settled-law-ofthe-case doctrine — that precludes review of issues decided by an appellate court that have become final in a previous appeal — is applicable to child welfare cases.25 She urges the continued litigation is due to the appellees’ dissatisfaction with the earlier trial judge’s ruling26 and the February 2009 order renders this appellate review meaningless. ¶11 The appellees respond the February 2008 order was never more than an interlocutory order. It is hence subject to modification at any time in accordance with the terms of 10 O.S. § 7003-6.1.27 ¶12 The goal of inquiry into the meaning of a statutory enactment is to ascertain and give effect to the intent of the legislature.28 It is presumed that the law-making body has expressed its intent in a statute’s language and that it intended what it so expressed.29 If the meaning of a statute is plain and unambiguous, it will not be subjected to interpretation by reference to rules of judicial construction but will instead receive the effect its language dictates.30 Only if legislative intent cannot be ascertained from the language of a statute, as in cases of ambiguity, are rules of statutory interpretation to be invoked and employed.31 The determination of legislative intent controls statutory interpreta2306
tion by the judiciary.32 When possible, different provisions must be construed together to effect a harmonious whole.33 ¶13 The district court’s continuing authority over children whose status stands adjudicated as deprived is implicit in the scheme of the Oklahoma Children’s Code.34 The terms of § 7003-6.1 are explicit.35 A decree or order made pursuant to the Oklahoma Children’s Code may be modified by the court at any time. An order dealing with termination of parental rights is not modifiable. Further, the legislature has directed that a district court must review every disposition order concerning a child adjudicated as deprived at least every six months.36 Review hearings may be set at any time upon a motion by any party.37 The Oklahoma Children’s Code, 10 O.S. §7001-1.1 et seq., is to be liberally construed to carry out its purpose, which includes unifying and strengthening family ties whenever possible in children’s best interest and for the safety and health of children.38 ¶14 The terms of § 7003-6.139 are clear and unambiguous. An order made pursuant to the Oklahoma Children’s Code that does not decree parental-rights termination may be modified at any time. The 2009 order appealed from here did not effect termination of parental rights. That order was made in a review hearing in accordance with the terms of § 7003-5.6 (C).40 The state’s quest for termination of visitation was sufficient to invoke the court’s jurisdiction. The February 2008 order entered by the trial judge and affirmed here was hence subject to review and modifiable if conditions should warrant its alteration. III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT ORDERED NO CHANGE IN THE CHILD’S FOSTER HOME PLACEMENT, A LONG-TERM OUT-OF-HOME PERMANENCY PLAN, AND SUPERVISED VISITATION WITH THE MOTHER A. Foster-Home Placement ¶15 The mother next urges the trial judge abused his discretion when he failed to order a change of foster placement, changed the permanency plan from reunification to long-term out-of-home placement, and ordered supervised visitation. According to the mother, the foster mother’s failure to support reunification, the lack of assistance from DHS, and the
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unflagging litigation brought by the appellants is the primary cause of BTW’s anger towards, fear of, and alienation from her. This has served to undermine her relationship with BTW and efforts toward successful visitation and reunification with the child.41 Motivated by these thoughts, she now urges the trial judge erred when he found the foster mother is acting in the best interest of the child, DHS has attempted to make reunification work, and supervised visitation was proper. The appellees respond there is sufficient evidence to support the trial court’s findings. ¶16 Abuse of discretion is the standard of review for the conclusion we reach here. When reduced to articulate and meaningful simplicity, abuse of discretion — as a legal standard of appellate review — means exceeding the outer range of permissible judicial choice-making.42 A trial court’s findings concerning visitation and placement of a child previously adjudicated as deprived are matters of equitable cognizance.43 Its paramount consideration is the best interest of the child.44 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.45 It is beyond the appellate court’s power to disturb that decision unless it is found to be clearly contrary to the weight of the evidence or to some governing principle of applicable law.46 ¶17 The record in this appeal is lengthy. Divergent views of the situation and its cause are again pressed by the parties. There is evidence to support the mother’s contention. The child, when initially placed with the foster mother, loved and missed her mother.47 It was shortly thereafter that BTW began to express a fear of her. The court in BTW I noted the record evidence supported the mother’s contention that the foster mother interferes with the mother-child relationship and does not promote reunification.48 The court-appointed guardian ad litem has consistently held this view ever since her appointment in that capacity in 2005.49 She has and continues to urge the child be removed from the current foster home because of this factor.50 Indeed, the close attachment of the foster mother to the child and the impact of this relationship upon reunification efforts was noted by the current trial tribunal in its June order regarding visitation.51 ¶18 Until the recent visits, upon which the April 2008 emergency motion to terminate visitation was based, the child has been unable Vol. 81 — No. 28 — 10/16/2010
to provide specific information about what is stressful about her visits with her mother.52 BTW has and continues to express her desire that visitations stop and she be allowed to continue to live with her foster mother.53 ¶19 The record further reveals the most recent reports and testimony of the two treating psychologists — one who works jointly with mother and child and one who works solely with BTW. The child’s counselor, although originally concerned about the foster mother’s negative impact on the child’s relationship with her mother, has since the May/June 2008 hearing on visitation testified that he doesn’t now believe the foster mother tries to harm the child’s relationship with her mother.54 The psychologist who jointly treats mother and child, when queried whether this was a case of parental alienation, testified he did not have sufficient information to make that determination.55 ¶20 According to both counselors, BTW has a genuine fear of her mother and of being returned to the latter’s care.56 Her adamant opposition to visitation and possible reunification with her mother impacts their interactions.57 According to the family counselor, the mother, while having made earnest efforts to moderate her behavior and improve the situation, believes BTW’s fears of her are more displays for effect and not genuine concerns.58 She is unable to find an effective means of responding to or handling the child’s behavior.59 Her anger and foul language frighten the child.60 The child’s therapist recommends that efforts toward reunification cease.61 The counselor for mother and child reports the current therapeutic efforts are unproductive.62 Because of the deficiencies in the parent-child bond, less far-reaching goals would currently be more appropriate.63 ¶21 A district court has the duty to remove a child from foster care when the circumstances do not promote an opportunity for reunification.64 Although there is conflicting evidence here concerning whether the foster mother supports family reunification, we cannot say the trial tribunal’s decision to continue the child’s placement in the current foster-home was clearly contrary to the weight of the evidence. The mother and child have attended joint and individual counseling sessions for almost a year. Unfortunately, little progress towards establishing a healthy parent-child bond has been made. Both counselors believe
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the child’s fear of the mother is genuine. Further, they now advise that to continue the current therapeutic efforts may be injurious to the child’s functioning.65 Additionally, testimony from teachers and the child’s school counselor support the notion that the child is progressing well in school and socially.66 She feels secure in her current foster-home placement.67 In light of record evidence, we cannot hold that the trial court abused its discretion when it ordered no change in foster-home placement. B. Permanency Plan ¶22 The mother next urges the trial judge abused his discretion when he changed the permanency plan from reunification to longterm, out-of-home placement. According to the mother, the trial judge erred when he determined the state has made reasonable efforts to reunify this family.68 She asserts there has been no legitimate opportunity for reunification because of improper foster placement, obstructive and delayed actions by DHS, and inadequate visitation, at times limited to one hour per week. Further, DHS has and continues to interfere with her rights to make educational, healthcare, and religious-training decisions for BTW, and the only reunification services it is providing are foster care and visitation. The mother’s argument must fail in light of the record before us. The trial judge’s February 2009 order does reflect some tension exists between the mother and DHS staff. “[I]t is the position of the court that the DHS should make every effort to facilitate visitation that is more successful than in the past and supervised by persons and in places that are more conducive to pleasant circumstances.” (9 February 2009 order, p. 5) Although the mother asserts efforts by DHS dealing with reunification are meager, she does not identify any required services the state has failed to provide her. The evidence reveals the state is providing foster care, conducting monthly visits of the foster home, arranging and supervising visitation sessions, talking with providers, and facilitating some transportation for the child’s visits with her mother.69 Further, the mother and child have attended court-ordered counseling. We cannot say the trial judge abused his discretion when he found the state had made reasonable efforts toward reunification.70 ¶23 The mother further urges that it was error for the trial judge to fail to order a modi2308
fication in the treatment and service plan following the November/December 2008 review hearing, in conformity to the terms of 10 O.S. § 7003-5.6(F)(6).71 Neither was a new treatment plan filed nor did the court provide the mother with a description of conduct that is expected of her to alleviate the conditions that resulted in the child’s removal from her home in conformity to the terms of §§ 7003-5.3(B)72 and 70035.3(D)(5)(d).73 ¶24 The § 7003-5.3 terms deal with the initial service plan implemented by the district court. It is subject to modification by the § 7003-5.6 terms that deal with periodic review hearings.74 Our review of the § 7003-5.6(F)(6) terms reveals that it is within the trial tribunal’s discretion to modify the existing treatment plan. It is not mandatory that the plan be changed at each hearing but it stands subject to modification as the court determines to be in the best interests of the child. When this is so, a new plan is not required. We hence cannot say the trial judge’s failure to order a modification of the existing treatment plan constitutes reversible error. ¶25 Lastly, the mother contends the trial judge violated her due process rights when he changed the permanency plan from family reunification to long-term, out-of-home placement.75 According to mother, an order providing for long-term foster care and limited supervised visitation is a significant restriction of her parental rights.76 The mother relies on In the Matter of Baby Girl L.77 and asserts that because the alleged harm here is psychological in nature, it is “serious psychological harm” to the child that must be shown before her parental rights may be restricted.78 ¶26 The mother’s reliance on Matter of Baby Girl L is mistaken. That cause dealt with the return of a child to its biological parents after a failed adoption. The court there held that prospective adoptive parents should be allowed to make a showing of serious psychological harm to a child resulting from a change in custody from adoptive parents to the biological parent after a lengthy period of a failed adoption. If this showing has been made, a trial court may award custody to a party other than a biological parent. The court’s decision there was bottomed on the state’s adoption statutes.79 It is inapplicable here.80 ¶27 In that cause the court reiterated that concern about actual or imminent harm to the child is the legislature’s standard in terminat-
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ing or restricting parental rights.81 The mother urges the trial tribunal made no finding that the mother’s actions would result in harm to BTW. According to the mother, by restricting her rights without this finding the trial court denied her due process. There is evidence here that reveals the child’s functioning has deteriorated and if efforts toward reunification were to continue further deterioration may result in the child’s mental health functioning.82 This finding is sufficient as a basis for actual or imminent harm. The mother’s due process rights were hence not violated when the trial judge ruled long-term out-of-home placement of the child was proper. C. Visitation ¶28 The mother’s final claim to error is that no factual basis exists to deny her unsupervised visitation. Neither is there evidence that suggests BTW will be harmed by the mother or by unsupervised visitation. Further, she urges her fear that has already been instilled in BTW will only be reinforced by requiring supervised visitation. Although there is evidence to support each side’s position on appeal, we cannot say the trial tribunal erred when it ordered supervised visitation of the mother with the child. The counselors have testified that the child’s fear of her mother is genuine. One counselor has recommended that visitations cease and the other questions the advisability of unsupervised interactions between the mother and child.83 The trial judge did not hence err when he ordered supervised visitation. IV. SUMMARY ¶29 We review the trial court’s resolution of fact issues under the centuries-old equitable standard. It is our duty to affirm the trial court’s decree if it is not clearly contrary to the weight of the evidence. Our careful review of the massive record reveals that although there is conflicting evidence, we cannot say the trial judge abused his discretion (or that his findings are clearly contrary to the weight of the evidence) when he ordered the child to remain in her current foster-home environment as a long-term, out-of-home placement and permanency plan, and enjoy supervised visitation with her mother. The trial court’s order must be and hence is affirmed. Vol. 81 — No. 28 — 10/16/2010
¶30 EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, KAUGER, WATT, WINCHESTER AND REIF, JJ., CONCUR; ¶31 COLBERT, J, CONCURS IN PART AND DISSENTS IN PART. 1. Identified herein are only those counsel for the parties whose names appear on the appellate briefs. 2. In the Matter of BTW, 2008 OK 80, 195 P.3d 896. The court affirmed there a February 2008 order of the district court and ruled the trial judge did not abuse his discretion when he ordered (1) a change of child’s placement from the current foster home (2) continued visitation between mother and child and (3) the goal to be that of reunification of the child with mother. 3. The child was originally placed in the adoptive mother’s home as a foster child. She was approximately 19 months old at the time of her placement. The Department of Human Services (DHS) was aware of the mother’s medical history, including mental illness, but was supportive of the adoption. BTW I, supra note 2, at ¶ 4, at 899. The child is currently thirteen years old. We continue the use of generic names for the parties to protect the child’s privacy in the spirit of the terms of Rule 1.25, Oklahoma Supreme Court Rules, 12 O.S. 2001, Ch. 15, App.1. The pertinent terms of this rule provide: *** (b) In appeals from juvenile proceedings including, but not limited to, adoption and paternity proceedings and proceedings under the juvenile code, the initials of the child’s name shall be used rather than the child’s name. *** 4. In April 2005, DHS responded to information alleging neglect of BTW. Upon investigation, DHS found neither evidence of neglect nor did it recommend legal action to the district attorney. A “services recommended” finding was entered, and the mother was to place the child in counseling. BTW I, supra note 2, at ¶ 5, at 900. Although the parties disagree as to who sought a guardianship, one was established in June 2005 with the person who is now the foster mother. BTW I, supra note 2, at ¶ 6, at 901. 5. DHS initially sought to terminate mother’s rights in 2006. The state’s amended petition alleged the mother refused to comply with an earlier treatment plan entered under a disposition order and that her mental condition would not respond to treatment. After a trial, a jury refused to terminate the mother’s parental rights. BTW I, supra note 2, at ¶¶ 9-10, at 903. 6. After the trial DHS permitted the mother weekly one-hour supervised visitation with the child. In September the mother filed a motion to assume full custody of the child or alternatively to remove the child from the foster parent. The judge also ordered DHS to expand its search to the threecounty area for a home where the faith was different from that of the foster parent, continued counseling for the mother and child and for the mother to execute a release of her medical records. See BTW I, supra note 2, at ¶ 13, at 904. 7. At this review hearing DHS had requested reunification efforts cease and the child remain in out-of-home placement. BTW testified she wanted visitations discontinued because she was fearful of her mother and her mother treated her poorly. BTW I, supra note 2, at ¶ 15, at 907. The court summarized the child’s major complaints against the mother as yelling at her, using foul language, and interfering with her church activities. BTW I, supra note 2, at ¶ 23, at 907. Although BTW expresses fear of the mother, she acknowledges that she has had enjoyable experiences during visitation periods. BTW I, supra note 2, at ¶ 23, at 907. The order further provided that unsupervised weekend visitation was to occur every other weekend and DHS was to advise the court monthly concerning the availability of a new foster-home placement. 8. BTW I, supra note 2, at ¶ 16, at 907. 9. The stay was granted only insofar as it related to the child’s change of placement from the foster home. The court’s order provided “[t]he portion of the trial court’s ruling which orders a change of foster placement is temporarily suspended, during the pendency of this original proceeding, or until further order of the court. In all other respects, the Emergency Motion for Stay is denied.” (27 February 2008 order, record, p. 1181) 10. In addition to prohibiting further proceedings in the cause the 18 April order (1) retained the cause for disposition by the court and (2) reiterated the stay issued on 27 February should remain in effect pending resolution of the cause. BTW I, supra note 2, at ¶ 17, at 907.
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11. The appellants’ 14 March 2008 motion to disqualify the trial judge urged reasonable doubt about his impartiality. According to appellants this was based on (1) ex parte communications between the judge and the guardian ad litem and (2) the trial judge’s change of his opinion about the foster mother, sans new evidence. (record, pp. 56979) The guardian ad litem denies any improper communication took place. The trial judge refused to recuse himself and denied the motion. (record, p. 585) 12. This motion was filed on 18 April 2008. (record, p. 720) 13. The state’s inquiry was whether the court’s earlier 18 April order granting a writ of prohibition preventing further proceedings in this cause also prohibits enforcement of the lower court’s order for continuing visitation. If so, they requested to be allowed to seek relief in the district court before a disinterested judge. Although DHS did not subscribe to this motion, it was solely because the responsible attorney was not available to do so. (record, pp.808-10) 14. The appellants’ motion, filed 24 April, was based on reports of mounting stress on BTW as a result of the mother’s alleged behavior during recent visitations. Toward the end of a weekday visitation on 23 April, it is alleged the child requested an umbrella before going to an event at the mother’s church that she previously had been allowed to attend. The mother refused her permission and is alleged to have begun yelling and using foul language. Later that evening, when mother returned the child to the foster mother at the designated dropoff location, the child became so upset that she vomited. (record, pp. 808-19) This is referred to as the “umbrella incident.” According to mother’s response to this motion, neither the psychologists nor the guardian ad litem were consulted or notified concerning the termination of visitation. (record, p. 834) The motion was also based on the child’s diary account of events on 6 April, referred to as the Wal-Mart or picture incident. While at Wal-Mart to have pictures of the child made, BTW alleged her mother had threatened to strangle her. The child’s diary reveals that she did not want to have her picture taken because she thought her mother would use it in court. (record, p. 819) Although the appellants’ emergency motion to discontinue visitation did not mention an earlier allegation of threat by the mother to choke the child, this was addressed during the June hearing. This occurrence, referenced as the Easter incident, took place on Easter weekend approximately one month before the emergency motion was filed. The alleged statement was made by the mother in response to finding BTW and a friend playing in the mother’s closet where she had hidden the child’s Easter presents. (transcript of June hearing on visitation, p. 334) 15. 19 June order regarding visitation, record, p. 1052. 16. 19 June 2008 order regarding visitation, record, p. 1050. It was not the trial tribunal’s opinion that the mother would be physically violent with the child and the choking allegations “did not appear to be much more than words of frustration or anger.” (record, p. 1051) The mother “does not seem to sufficiently recognize the impact of her angry reactions and profane outbursts have on the child nor does she seem to recognize that her reactions and outbursts are fuel for the child’s desires and justifications in resisting a relationship with the mother.” (record, p. 1051) 17. Mandate issued on 27 October 2008. 18. The motion was filed 10 October 2008. The state’s motion was based upon an 3 October 2008 report from the child’s psychologist. (record, p. 1070-75) 19. Report of John Stewart, Ph.D., 3 October 2008, record, p. 1080-81. 20. State’s emergency motion for termination of all visitation, record, p. 1072. The therapist who treats both mother and child informed the guardian ad litem that the availability of inpatient treatment might be needed upon the child’s being informed of the court’s opinion that affirmed the trial judge’s decision. (letter of Stephen R. Close, Ph.D., record p. 1083) 21. DHS contends the 19 June district court order that provides for supervised visitation once a week has not been abrogated. Mother asserts that order by its own terms determined the visitation to be provided during the pendency of the cause before the court. “The Supreme Court . . . directed that a hearing be held by a disinterested judge to determine whether it is proper, during the pendency of the case before the Supreme Court, to allow continued visitation between the Mother and Child.” (19 June order regarding visitation, record, p. 1231) 22. At the hearing the judge, noting the motion suffered from a service defect and was based on the wrong statute, dismissed mother’s original application for citation of contempt. (transcript of November/ December 2008 review hearing, p. 6) 23. The judge relied on In the Matter of C.R.T., 2003 OK CIV APP 29, 66 P.3d 1004, and ruled that the time passage, basis and culpability for
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a determination or granting of the motion had not occurred. (record, pp. 1297) 24. Mother cites the following cases for support of her proposition that it is the duty of the lower court to comply with the mandate. Hurst v. Brown, 1954 OK 25, ¶ 7, 266 P.2d 438, 440; Marshall v. Cantrell, 1951 OK 172, ¶ 6. 236 P.2d 262, 63. The district court must implement the mandate of the Supreme Court by entering an order in accordance with the appellate decision. Take v. Woodruff, 1931 OK 255, ¶ 3, 300 P. 698, 699. 25. For support mother cites to In the Matter of Baby Girl L., 2002 OK 9, ¶ 6 n.2, 51 P.3d 544, 547 n.2. There the court noted earlier appellate review of the issue of a child’s adoption sans its father’s consent and that the father’s parental rights could not be terminated. These conclusions were not before the court on corrective review because of the settled-law-of-the case doctrine. Baby Girl L, supra. 26. Mother asserts the movants have made seven attempts to overturn the order of the previously assigned trial judge that provided for visitation and reunification. (mother’s response to emergency motion to terminate visitation record, p. 1111) 27. The terms of 10 O.S. § 7003-6.1, provide: Any decree or order made pursuant to the provisions of the Oklahoma Children’s Code may be modified by the court at any time; provided, however, that an order terminating parental rights shall not be modified. All citations in this opinion are to the statutory numbering system used before the time of its change in May 2009. 28. Villines v. Szczepanski, 2005 OK 63, ¶ 9, 122 P.3d 466, 470; Cooper v. State ex rel. Dept. of Public Safety, 1996 OK 49, ¶ 10, 917 P.2d 466, 468. 29. Nealis v. Baird, 1999 OK 98, ¶ 55, 996 P.2d 438, 460; TXO Production Corp. v. Okla. Corp. Comm’n, 1992 OK 39, ¶ 7, 829 P.2d 964, 969. 30. Ross v. Peters, 1993 OK 8, ¶ 9 n. 17, 846P.2d 1107, 1119 n. 17; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20; Forston v. Heisler, 1961 OK 198, ¶ 11, 363 P.2d 949, 951. 31. Cooper, supra note 28, at ¶ 10, at 468; TXO Production Corp., supra note 29, at ¶ 7, at 969; Cox v. Dawson, 1996 OK 11, ¶ 6, 911 P.2d 272, 276. 32. State ex rel. Dept. of Human Services v. Jerry Colclazier, 1997 OK 134, ¶ 9 n. 13, 950 P.2d 824, 827 n. 13; Copeland v. Stone, 1992 OK 154, ¶ 5, 842 P.2d 754, 756; Fuller v. Odom, 1987 OK 64, ¶ 5, 741 P.2d 449, 453. 33. McNeill v. City of Tulsa, 1998 OK 2, ¶ 11, 953 P.2d 329, 332. 34. State ex rel. Dept. of Human Services v. Colclazier, supra note 32, at ¶ 10, at 828. 35. For the terms of § 7003-6.1 see supra note 27. 36. The terms of 10 O.S. Supp. 2007 § 7003-5.6 (A), the statute in effect at the time, provide: Every case regarding a child alleged or adjudicated to be deprived shall be reviewed by the court at a hearing no later than six (6) months from the date of the child’s out-of-home placement and at least once every six (6) months thereafter. *** Colclazier, supra note 32, at ¶ 10, at 828. 37. The terms of 10 O.S. Supp. 2007 § 7003-5.6 (C), the statute in effect at the time, provide: The court may set a case for a review hearing upon the motion of a party at any time, if the hearing is deemed by the court to be for the health, safety or welfare of the child and in the best interests of the child. Colclazier, supra note 32 at ¶ 10, at 828. 38. Skrapka v. Bonner, 2008 OK 30, ¶ 19, 187 P.3d 202, 212. 39. For the terms of §7003-6.1 see supra note 27. 40. For the terms of §7003-5.6(C) see supra note 37. 41. The foster mother recently testified at the December 2009 review hearing that she is willing to adopt BTW. (transcript of November/December 2008 review hearing, p. 431) 42. Other definitions of abuse of discretion include: “Abuse of discretion by a trial court is any 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. “An adjudicator’s failure to exercise sound, reasonable, and legal decision-making.” Black’s Law Dictionary 10 (7th ed. 1999). 43. BTW I, supra note 2, at ¶ 19, at 908. 44. BTW I, supra note 2, at ¶ 19, at 908. 45. In re Estate of Bleeker, 2007 OK 68, ¶ 12, 168 P.3d 774, 779. 46. Ray v. Ray, 2006 OK 30, ¶ 10, 136 P.3d 634, 636; In re Estate of Bleeker, supra note 45, at, ¶ 12, at 779. If a trial court’s decision stands by record and reason, it will not be disturbed on review. Hammonds v. Osteopathic Hosp. Founders Ass’n, 1996 OK 100, ¶ 6, 934 P.2d 319, 322. We have characterized the abuse-of-discretion standard by a variety of similar expressions. We have said that discretion is abused when a trial court makes a clearly erroneous conclusion and judgment contrary to
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reason and evidence, when it exercises its discretion to an end or purpose not justified by, and clearly contrary to, reason and evidence, and when discretion is employed on untenable grounds or for untenable reasons, or where its exercise is manifestly unreasonable. State v. Torres, 2004 OK12, ¶ 10, 87 P.3d 572, 580. 47. Transcript of November/December 2008 review hearing, where the foster mother is testifying on cross examination in pertinent part at pp. 444-45. Q. “And then on June 26th, you noted that ‘She prays every night for her mom to get well so she can go home. She wants to go live with her real family.’ Correct?” A: “Correct.” Q: “And then in the next paragraph, it says ‘She seldom asks about mom in the day time now and does not seem sad, only mentions her on occasion, and when we pray even for a meal she prays for mom to get well so she can go home.’” A: “Correct.” 48. BTW I, supra note 2, at ¶22, at 909. 49. BTW I, supra note 2, at ¶ 22, at 909 and ¶ 17, at 908 n.46. Although the foster mother denies influencing the relationship between the mother and child, the guardian’s ad litem testimony reveals her concerns. Transcript of November/December 2008 review hearing, Robyn Price, guardian ad litem, testifying in pertinent part at p. 633: “I’m not really trying to offer any new opinions that haven’t been said before. As everybody knows, I’ve always had concerns with the placement with [foster mother]. They’ve never been anything with [BTW’s] physical safety, but it’s always been along the lines of whether [foster mother] fostered or encouraged that relationship between [BTW] and her mother.” Transcript of November/December 2008 review hearing, Robyn Price, guardian ad litem, testifying in pertinent part at p. 635: “In addition to the protective order issue between [mother] and [foster mother] and the hostility between these two women — and [BTW] was very aware of that — was the comment — and this was on my very first meeting with [BTW] — that [foster mother] had told her that her mother had a mental illness and she would never get better. And that was said to me more than once by [BTW].” Transcript of May/June 2008 hearing on visitation, Robyn Price, guardian ad litem, testifying in pertinent part at p. 459: “And I said, ‘[BTW], I remember in the guardianship case that you told me that you and [foster mother] would say a prayer for [mother] at night.’ And I said, ‘Are you guys still saying a prayer at night together?’ And she said, ‘Yeah.’ And I said, ‘Well, what do you pray about?’ or ‘Do you pray for [mother]?’ ‘Yeah, we pray for [mother] to realize that I’m not safe, happy or loved with her.’ And — I mean, it’s obvious that the child does not want to be with her mother, have anything to do with her mother.” Transcript of May/June 2008 hearing on visitation, Robyn Price, guardian ad litem, testifying on cross examination in pertinent part at p. 458: “I’ve had — always had concerns about [BTW’s] knowledge and information of the case. I know when [the child’s attorney] and I met with her, [BTW] made the statement that ‘I do not have to be removed from [foster mother’s] home and the court decided Judge Jackson was not the judge anymore.’ And [her attorney] said, ‘Well, [BTW], I didn’t tell you that, so who told you that?’ And her response was, [foster mother].” Transcript of May/June 2008 hearing on visitation, Robyn Price, guardian ad litem, testifying in pertinent part at p. 469: The Court: “Okay. I might ask the last question first. Any changes in your opinions that you’ve developed with reference to this child since this hearing began Friday?” Ms. Price: “The videotape has impacted some of the thoughts on this. I was — to some extent, I thought the evidence had been presented that there was a rage that went on for two hours with [mother], and what I saw on the videotape, I see [BTW] laughing, I see her playing. I don’t see a child that seems to be scared of her mother in that videotape. So that — I guess I’ve been enlightened by that.” 50. Transcript of November/December 2008 review hearing, Robyn Price, guardian ad litem, testifying on cross examination in pertinent part at pp. 650:
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Q: “Well, if I understand you correctly you’re still not changing your opinion that she needs to be removed from [foster mother’s] home.” A: “That’s correct.” Transcript of November/December 2008 review hearing, Robyn Price, guardian ad litem, testifying in pertinent part at p. 635. “And that’s something that I’ve been consistent on as well: I’ve never said for her to stay in [the foster mother’s] care; I’ve never said for her to be returned to [the mother].” *** 51. “[The foster mother] has a close relationship with the child which the child treasures and desires to continue but which could be so close that it does not contribute to a relationship between mother and child. As Dr. Close opined on cross examination, the Foster parent relationship has contributed to difficulties between mother and child. That situation might present itself in any long term relationship between a child and an adult in this situation, the fault perhaps of no one individual.” (19 June 2008 order regarding visitation, record, p. 1233). 52. Transcript of May/June 2008 hearing on visitation, Robyn Price, guardian ad litem, testifying in pertinent part at p. 464: “Okay. ‘April 30th, 2008: The patient began to accuse this therapist [Dr. Stewart] of being against her. She is unable to be specific about the stressors at her mother’s.’” “[BTW] has had difficulty in being very descriptive of the characteristics about her visits with her mother in describing what makes them so traumatic. However, her report that her mother has difficulty with frustration and becomes agitated easily has been personally witnessed.” (2 May 2008 letter of John Stewart, Ph.D., respondent’s exhibit 2) 53. November/December 2008 review hearing, transcript, p. 725; May/June 2008 hearing on visitation, in-camera interview by judge of BTW, p. 578; BTW I, supra note 2, at ¶ 15, at 907. The child’s attitude toward her mother exhibited during the weekly, one-hour visitations is angry and disrespectful. Transcript of November/December 2008 review hearing, Sue Lougee, DHS Child Welfare Specialist, testifying in pertinent part at p. 257: Q: “Okay. Overall, what’s you opinion on how the visits have gone?” A: “[The mother] really makes a sincere effort, I think, to engage [BTW], and she comes in with good ideas for the visits and that type of thing, but [BTW’s] response to that effort is usually anger directed at [mother]. Sometimes it has been directed at me for having her — having to bring her there and to keep her there. There are times when they do play a game, a board game or a bean toss game, but there’s very little really personal interaction between the two. They kind of don’t take turns; they just play the game kind of almost, like individually. And so [BTW] usually wants to get out of there as quickly as possible, and she continually asks what time it is, you know, wanting the visit to end. And she will make comments about that, derogatory comments about her mom, to her mom, that type of thing.” 54. A 2 May 2008 report from the child’s counselor reveals his concern about the foster mother’s influence on the child. “Another concern I have developed since the last hearing is the influence that the foster mother plays in [BTW’s] relationship with her mother and the role that [foster mother] is playing in contributing to the continued anger [BTW] has towards her mother. [BTW] has indicated that [foster mother] does not promote the development of a relationship but has instead has possibly contributed to the anger and anxiety that [BTW] has. It is recommended that if [BTW] is to remain in [foster mother’s] home, [foster mother] should be counseled as to the importance of promoting a positive relationship with her mother. . . .” (November/ December 2008 review hearing, respondent’s exhibit 2) Transcript of 30 May of the May/June 2008 hearing on visitation, John Stewart, Ph.D., testifying on cross examination in pertinent part at p. 69: Q: “Did your questions relate to a connection between placement and visitation?” A: “I was concerned at the time that [BTW’s] views about her mom and her negative view of her mother and just her overall negative perception was related to her — could be related to her placement. I didn’t know. I’m not saying it was. Since then, I think I’ve come to the place — I’ve come to an understanding that I don’t think that it is.” Q: “And what changed your mind?” A: “In talking with [BTW] and in — I haven’t worked with [foster mother] over the last six months, but she’s brought her. I means, she’s brought her the majority of the times. I don’t believe — one of the questions I had — and Ms. Price has brought this up — is that [foster mother] doesn’t promote a relationship with her mom. And I don’t know if she does or not, but I don’t think
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she tries to harm that relationship either. And I think [foster mother] is sincerely concerned about [BTW] and is concerned about her safety and her — and that’s why she’ so invested in her. And that’s just what I’ve come to understand.” The guardian ad litem noted Dr. Stewart’s opinion concerning the foster mother’s influence on the child had changed since her conversations with him the previous month. Transcript of 30 May of the May/June hearing on visitation, Robin Price, guardian ad litem, at pp. 454-56. 55. Transcript of November/December 2008 review hearing, Stephen R. Close, Ph.D., testifying on cross examination in pertinent part at p. 65: Q: “Would you say that you have a serious case of parental alienation on your hands?” A: “Well, it depends how you use that term.” Q: “Okay.” A: “Because if you’re using that with respect to parent alienation as conceptualized in divorce proceedings, then no. I mean, I don’t have the amount of information necessary to make that kind of determination.” 56. Report of Stephen Close, Ph.D., 10 November 2008, record, p.1495. Transcript of May/June 2008 hearing on visitation, Stephen R. Close, Ph.D., testifying in pertinent part at p. 127: Q: “Did [BTW] tell you that she was fearful?” A: “Yes, she did.” Q: “Do you believe her fear is contrived?” A: “No.” Q: “On a scale of 1 to 10, how would you rate [BTW’s] fear?” A: “Oh, I think 7 or 8.” Transcript of May/June 2008 hearing on visitation, John Stewart, Ph.D., testifying in pertinent part at p. 45: Q: “Do you believe that [BTW] is truly afraid of her mother?” A: “Yes” Q: “An on a level of 1 to 10, what do you believe [BTW’s] level of fear of [mother] is? A: “An 8 or 9.” 57. Report of Stephen R. Close, Ph.D., 10 November 2008, record, p.1494. 58. Report of Stephen R. Close, Ph.D., 10 November 2008, record, p.1495. 59. Report of Stephen R. Close, Ph.D., 10 November 2008, record, p.1494. 60. Transcript of November/December 2008 review hearing, Stephen R. Close, Ph.D., testifying in pertinent part at pp. 49-50: Q: “Okay. You testified in May as to some flashes of anger that [mother] had that created an emotional risk to [BTW].” A. “Yes.” 61. Report of John Stewart, Ph.D., 3 October 2008, record, p. 1491. 62. Report of Stephen R. Close, Ph.D., 10 November 2008, record, p.1495. Report of John Stewart, Ph.D., 3 October 2008, record, p. 1492. Transcript of November/December 2008 review hearing, Stephen R. Close, Ph.D., testifying in pertinent part at p. 46: Q: “Can you tell me what those factors that are interfering with treatment are?” A: “Well, from [BTW’s] standpoint, I think that she has difficulty with attachments. That’s been covered before. I think that the strength of attachment with [mother] after their separation has been very, very low, very, very little. And from [mother’s] standpoint, I think it’s very difficult for [mother] to be able to tap into [BTW’s] emotional state and her emotional needs. As a result, [BTW] is not — doesn’t really have a meaningful bond with [mother], and [mother’s] difficulties in really understanding and reaching [BTW] emotionally then effectively interferes with building that bond.” 63. Report of Stephen R. Close, Ph.D., 10 November 2008, record, p.1495. Transcript of November/December 2008 review hearing, Stephen R. Close, Ph.D., testifying in pertinent part at p. 51: Q: “In your observations of [mother] and [BTW] in your sessions, is it your opinion that a different environment might lend a different outcome at this point?” A: “Well, I — yeah, this has come up before, and I’ve talked to [mother] about this as well, that [BTW] has a fear that if things go well between she and [mother] that that would speed reunification. And so the kind of onus of having this potential change in custody causes [BTW] to not only be chronically worried, but she’s wary of anything that would indicate that progress was being made, and, therefore, that it would be likely to speed being reunified . . .”
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64. BTW I, supra note 2, at ¶ 22, at 909 n.54 (citing Skrapka, supra note 38, at ¶ 15, 187 P.3d 202, 210; Colclazier, supra note 32, at ¶ 9, at 829). The mother asserts that because the foster mother does not allow for the opportunity to effect reunification, the district court failed to consider BTW’s long-term best interests when it ordered her to remain in the foster mother’s home in accordance with 10 O.S. §§ 7003-5.6d(B) and 7003-5.6(F)(2)(a) & (F)(5). 65. Transcript of November/December 2008 review hearing, Stephen R. Close, Ph.D., testifying in pertinent part at pp. 48-49: Q: “In spite of your recommendation that the joint counseling stop, do you see any danger to [BTW] if the sessions with you were to continue?” A: “Well, conceivably, yes.” Report of John Stewart, Ph.D., 3 October 2008, record, p. 1491. 66. Transcript of November/December 2008 review hearing, Lisa D. Ross, teacher, testifying in pertinent part at pp. 500: Q: “ How does [BTW] do in your class?” A: “She does very well.” Q: “And how does she get along with her peers?” A: “Very well.” Transcript of November/December 2008 review hearing, Tara Burnett, school counselor, testifying in pertinent part at p. 479: Q: “How is [BTW] functioning currently when you see her?” A: “I think she’s doing fine.” Q: “So -” A: “Academically, I think she’s doing fine” 67. Transcript of November/December 2008 review hearing, Stephen R. Close, Ph.D., testifying on cross examination in pertinent part at pp. 63: Q: “Okay. Do you think if we changed the foster placement that things would just be better, that [BTW’s] and [mother’s] interaction together would be significantly better?” A: “Well, that raises a whole host of issues about alliances and loyalties and so on. Like I said before, the way that I would tend to reason through that is that it’s going to be an emotional expense to [BTW] to move away from people that she identifies as loving and caring. If we were to do that, then we’d want to know that we had some gain that would outweigh the costs of making that move.” Transcript of November/December 2008 review hearing, Sue Lougee, DHS child welfare specialist, testifying in pertinent part at p. 264: Q: “What is your recommendation on [BTW] being moved? A: “I don’t know if the Court’s gonna like me to say this, but I think that’s ludicrous. *** When children — growing up, a child, one of the things that make a healthy child is the stability of a caretaker and a physical home where they live where they can feel safe. If you move [BTW], she’s gonna have to start all over. She’s gonna have to gain trust. She’s not gonna really know a lot of people again. You’re gonna lose everything that she has if she’s moved.” 68. According to the mother the state is obligated to make reasonable efforts to reunify the family. 10 O.S. § 7003-5.3(J); 42 U.S.C. § 671(a)(15). The trial judge must have failed to consider prior evidence pursuant to 10 O.S. § 7003-5.6(F)(4). According to the mother, she is compliant with her service plan and she is not at fault for the time BTW has been out of the home. 69. Transcript of November/December 2008 review hearing, Sue Lougee, DHS child welfare specialist, at p. 263 and 308. 70. The mother contends the foster mother was never a proper placement for the child and that the terms of 10 O.S. §§ 21.1 and 70041.5(B)(1)(b) — dealing with order of placement preference — were ignored by the court in the earlier guardianship case and by DHS in its placement of BTW. The trial judge determined that although the child’s grandmother was a willing kinship placement, the evidence indicated she never completed a proper application and was rejected by DHS for that reason. (9 February 2009 order, p. 5) The mother in her reply brief, p. 15. note 6, further urges DHS ignored the terms of § 7003-8.1(A) which require DHS to select a placement for the child with the same religious faith as the parents. The § 7003.8.1(A) terms state that “the court shall, and the Department of Human Services shall, if at all possible, select a person or an agency or institution governed by persons of the same religious faith as that of the parents of the child…” (emphasis supplied) Concerning the child’s religious education, the record reveals that BTW attends a church that is neither the foster mother’s church nor the mother’s preferred church. According to the DHS worker this is so because (1) the mother did not respond to her after their initial discussion of this issue (2) the foster parent made this arrangement and (3) her understanding of the earlier court order permits the mother to direct the child’s religious education when she is with her. (November/December hearing review hearing, Sue Lougee,
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DHS child welfare specialist, testifying, p. 301-02) (exhibit 17, 3 March 2008 DHS letter) The mother’s argument — that the trial court violated Title II of the Americans with Disabilities Act (ADA) by failing to direct the development of a treatment and service plan that included additional services for BTW and herself — was denoted as an issue to be raised on appeal in her amended petition in error. Because the mother does not in her briefs make specific arguments concerning ADA provisions, this issue stands abandoned. The mother next urges the state cannot fail to make reasonable efforts to unify the family and then urge “exceptional circumstances” exist as a basis for determining long-term out-of-home placement as the proper permanency plan. For support she cites to Matter of A.S., 1991 OK CIV APP 44, ¶ 24, 811 P.2d 910, 915-16; Matter of C.R.T., 2003 OK CIV APP 29, ¶ 33, 66 P.3d 1004; and Matter of G.C., 1996 OK CIV APP 131, 928 P.2d 974, 978 n.4. The terms of 10 O.S. Supp. 2007 § 70035.6(F)(1)(d), the provision in effect at the time, provide: F. At each review hearing the court shall: 1. Determine whether: *** (d) the child, because of exceptional circumstances, should remain in long-term out-of-home placement as a permanent plan or with a goal of independent living: *** The mother’s argument is bottomed on the premise that the state failed to make reasonable efforts to reunify this family. This premise is unsupported upon review and the argument hence fails. The mother further contends the trial judge erred when he decided that reunification is not a realistic goal in this case. He erred when he considered Dr. Stewart’s opinion because (1) the latter offered an opinion yet was acting in the dual role — that of a therapist as well as being in a forensic role and (2) he rendered an opinion about an individual sans a formal assessment or having substantial contact with the person. This, according to the mother, is an ethical prohibition in accordance with OAC 575:10-1-10(b), that adopted the ASPPB Code of Conduct, Section III(A)(6). Appellate brief, p. 28. We note this is an ethical argument, not a legal one. According to the mother, the trial court further erred when it considered the testimony of appellees’ third expert witness, Dr. Barbara Bonner. The latter had no contact with the parties but offered her opinion of the situation based on her review of the reports and testimony of the treating psychologists and related portions of the trial court record and transcripts. According to the mother, neither experts’ testimony meets the Daubert factors for admissibility and cites Christian v. Gray, 2003 OK 10 ¶ 7, 65 P.3d 591, 597 (adopting Dauber v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 592 (1993)). Both psychologists possess specialized knowledge that assists the trier of fact to understand the evidence. The mother is not specific concerning which of “their theories have not been tested, published, or do not have widespread acceptance.” Appellant’s brief, p. 28. We cannot say the trial judge erred when he considered this testimony. The mother further urges that reasonable efforts to return the child to her home are required unless one of the enumerated bases set forth in 10 O.S. § 7003-4.6 is present. Because none of these bases is present here, according to the mother, reunification is the required plan. The mother is mistaken. A settled rule of statutory construction requires that, when possible, different provisions must be construed together to effect a harmonious whole. (see infra part II) The trial court rested its decision on the § 7003-5.6(F)(1)(d) terms, which provide for long-term out-of-home placement because of exceptional circumstances. The mother’s final assertion is that the trial judge erred by abandoning reunification as the permanency plan before it was attempted. The terms of § 6.1 provide that a decree or order pursuant to the Oklahoma Children’s Code may be modified at any time. See section II of this opinion, infra. 71. The terms of 10 O.S. Supp. 2007 § 7003-5.6(F)(6), the statute in effect at the time, provide in pertinent part: F. At each review hearing the court shall: *** 5. Order such modification to the existing individual treatment and service plan as the court determines to be in the best interests of the child and necessary for the correction of the conditions that led to the adjudication of the child. 72. The terms of 10 O.S. Supp. 2006 § 7003-5.3(B), the terms in effect at the time, provide: The plan shall be filed by the Department of Human Services or the agency responsible for the supervision of the case, or by the Department or the agency or licensed child-placing agency having custody of the child if the child has been removed from the custody of its lawful parent or parents.
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73. The terms of 10 O.S. Supp. 2006 § 7003-5.3(D)(5)(d), the terms in effect at the time, provide: D. The individual treatment and service plan shall include, but not be limited to: *** 5. If the child is placed outside the home: *** d. the services necessary to assist the child to reintegrate with the child’s family or other community-based placement and a description of acts by and conduct that is expected of the parent or parents, legal guardian, custodian, or stepparent or other adult person living in the home that would alleviate the conditions that resulted in the removal of the child before the child can be returned to a safe home. 74. The authority of DHS to determine a child’s placement is confined by the guidelines of §§ 7003-5.3 and 7004-1.1, for determination of individual treatment and service plans, and subjected to approval, disapproval, or modification by order of the district court in §§ 70035.5 and 7003-5.6 disposition and review proceedings. Colcazier, supra note 32 at ¶ 12, at 829. 75. According to the mother it is a denial of her due process rights to not be reunited with her daughter based on factors outside of her control — the passage of time and the acts of the State and foster parent. The trial judge’s decision was not bottomed on passage of time. There is sufficient evidence to support the trial court’s ruling concerning the actions of the State and foster mother. 76. York v. Halley, 1975 OK 51, ¶ 9, 534 P.2d 363, 365, teaches that failure to schedule a hearing for nearly two months after depriving the parents of the custody of their children is an impediment to the continuation of the parent-child relationship and a denial of due process. 77. In the Matter of Baby Girl L, supra note 25, at ¶ 12, at 550. 78. Mother argues there was neither evidence to support a finding of serious psychological harm nor a witness, including the psychologists, who stated they could predict what may happen if BTW is moved from [foster mother’s] home. In essence she urges there was no evidence presented to a “reasonable psychological certainty” that the mother would cause harm to the child. Appellant’s reply brief, p. 12-13. 79. In the Matter of Baby Girl L., supra note 25, ¶ 29, at 557. The Oklahoma Legislature has enacted that after a failed adoption the child should not automatically be returned to the child’s biological parents because a serious psychological harm to a child may occur in a particular case. In the Matter of Baby Girl L., supra at ¶ 24, at 556. 80. Even if the phrase “serious psychological harm” were applicable here, the court acknowledged the phrase did not lend itself to precise definition. In the Matter of Baby Girl L., supra note 25, at ¶ 31, at 556. 81. Oklahoma’s legislature has used imminent or actual harm to a child as a basis for terminating or restricting parental rights. Matter of Baby Girl L., supra note 25, at ¶ 26, at 556 (citing In the Matter of J.N.M, 1982 OK 153, 655 P.2d 1032 and 10 O.S. Supp.2000 § 7003-4.6(A)(9), (preservation of a family is not required if a court determines that an abandonment has occurred that constitutes a serious danger to the health and safety of the child)). Substantive due process forbids termination of such fundamental rights in the absence of a demonstration of a compelling state interest in the form of specific findings of existing or threatened harm to the child. Matter of J.N.M.,supra. 82. Transcript of November/December 2008 review hearing, John Stewart, Ph.D., testifying in pertinent part at p. 139-140. “Due to the continued determination of [BTW] that is related to her contact with her mother and her current level of distress when with her mother, it is recommended that visitations be stopped.” *** “The second recommendation was ‘Due to the lack of progress that has been made with the reunification attempt and the level of distress that continued attempt has on [BTW], it is recommended that reunification attempts be terminated. If these attempts continue, it is likely that [BTW] will continue to deteriorate and her mental health functioning may become severely limited.’” Q. “Are those still you recommendations, or have your recommendations changed?” A. “No, those are still my recommendations.” 83. “Considering the emotional distance between these individuals and the difficulty interacting meaningfully in a structured and protected setting such as a therapy session, there is reason for even greater concern regarding the nature and outcome of prolonged interactions in an unsupervised setting.” Report of Stephen R. Close, Ph.D., 10 November 2008, record, p.1495.
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2010 OK 70 IN THE MATTER OF THE APPLICATION OF SYLVIA MCCORMICK SPILMAN FOR EXPUNGEMENT AND SEALING OF RECORDS. SYLVIA MCCORMICK SPILMAN, Petitioner, v. OKLAHOMA BAR ASSOCIATION, Respondent. No. 108,544. October 5, 2010 APPLICATION FOR EXTRAORDINARY RELIEF ¶0 Petitioner is a practicing lawyer who was convicted of bribing a State’s witness, allowed to resign from the Bar pending disciplinary proceedings, later reinstated to membership in the Bar, and after receiving a pardon from the Governor successfully had her district court criminal records sealed, and now seeks to seal and expunge her Oklahoma Supreme Court and Bar Association disciplinary files as well as the present proceeding. The Oklahoma Bar Association objects to the relief sought by Petitioner. We hold that 22 O.S.Supp.2009 §§ 18 and 19, and Oklahoma Supreme Court Rules 1.260, 1.261, and 1.262 do not apply to the records in an Oklahoma Supreme Court Bar disciplinary proceeding that are related to a criminal conviction, and the Court declines to adopt a rule or procedure for sealing and expunging the records in Bar disciplinary proceedings based upon a disciplined lawyer’s compliance with 22 O.S.Supp. §§ 18,19. ORIGINAL JURISDICTION ASSUMED AND APPLICATION FOR EXTRAORDINARY RELIEF DENIED Sylvia McCormick Spilman, Tulsa, Oklahoma, Pro se. Loraine Dillinder Farabow, First Assistant General Counsel, Oklahoma City, Oklahoma, for the Oklahoma Bar Association. EDMONDSON, C.J. ¶1 An attorney, Sylvia McCormick Spilman, seeks to seal and expunge the records in her Bar Association disciplinary files. We hold that her request is not within the scope of the statutory authority relied upon, but involves this Court’s original and exclusive jurisdiction over the regulation of the Bar and the practice of law. We assume jurisdiction in this matter because the requested relief is within the exclusive original jurisdiction of this Court, and we 2314
issue an opinion because the application presents a first-impression issue. ¶2 In 1995, Spilman was convicted by a jury of bribing a State’s witness, sentenced to one year in the state prison, served eight weeks, and was released on parole.1 The conviction was affirmed by the Court of Criminal Appeals. Upon her conviction Spilman was allowed to resign from the Bar pending disciplinary proceedings.2 Nine and one-half years after her resignation, she applied for reinstatement to the Bar and the Court granted the application in October 2004.3 In 2005, the Pardon and Parole Board gave Spilman a favorable recommendation and the Governor gave her a pardon.4 ¶3 In 2007, the District Court for Tulsa County granted Spilman’s application to seal and expunge her criminal bribery file, CRF-1994920, and two other criminal files, CF-1994-180 and CF-79-693.5 The order was later modified by a nunc pro tunc order which included her record maintained by the Department of Cor rections.6 The District Court’s order exempted from sealing and expungement “the internal litigation files and records of the Tulsa County District Attorney’s Office . . . .”7 ¶4 In July 2010, Spilman filed in this Court an “Application for Expungement and Sealing Records” which requests that the records be sealed in her resignation proceeding, reinstatement proceeding, and the present proceeding.8 The records she seeks to seal are records of this Court ministerially controlled by the Clerk of this Court9 and files maintained by the Oklahoma Bar Association.10 The Bar Association filed its response to Spilman’s application and objected to the relief sought. The Bar Association argues that records relating to grievances terminated by a dismissal are expunged, but not a proceeding that involved a resignation pending discipline.11 ¶5 Spilman relies upon 22 O.S. §§ 18(8), 19; Oklahoma Supreme Court Rules 1.260, 1.261, 1.262; and the exhibits attached to the application as sufficient for her request to seal and expunge her Bar disciplinary files. The 2009 version of title 22, section 18, lists ten12 circumstances which may be used to support expunging a criminal record.13 Spilman indicates reliance upon the following language in 22 O.S.Supp.2004 § 18(8), now codified at § 18(9).14 Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories: . . . .
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(8) [t]he offense was a nonviolent felony, as defined in Section 571 of title 57 of the Oklahoma Statutes, the person has received a full pardon for the offence, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charge are pending against the person, and at least ten (10) years have passed since the conviction; . . . . Spilman’s Application at page 2, paragraph 2. The correctness of the adjudication by the District Court of Tulsa County in issuing its order granting Spilman’s request to seal and expunge criminal records is not before the Court in this proceeding. The present proceeding is not an appeal from the order of the District Court for Tulsa County.15 The first question presented for our review is whether 22 O.S.Supp. §§ 18, 19 apply to Supreme Court Bar disciplinary proceedings. ¶6 The first paragraph of 22 O.S.Supp.2009 § 19 shows that the § 18 remedy is provided by a district court. A. Any person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information. 22 O.S.Supp.2002 § 19 (A). Section 19 refers to a district court order appealed to the Supreme Court, but contains no reference to the Supreme Court issuing an order sealing Bar disciplinary records.16 Section 19 does state that a district court’s order “shall specify those agencies to which such order shall apply.” 22 O.S.Supp. 2009 § 19 (C). However, such language may not be read so broadly as to include the Oklahoma Supreme Court as one of those “agencies.” ¶7 When the term “agency” (or agencies) is used to name a government entity the term is usually17 not considered to include the Oklahoma Supreme Court or any other entity exercising judicial power. The State Constitution designates the three departments of governmental power as Legislative, Executive, and Judicial (Okla. Const. Art. 4 § 1), and the Supreme Court possesses judicial power (Okla. Const. Art. 7 § 2) which is exercised by an original jurisdiction proceeding in the nature of general superintending control over “Agencies, Commissions, and Boards created by law.” Vol. 81 — No. 28 — 10/16/2010
Okla. Const. Art. 7 § 4 (emphasis added). Consistent with this concept is the common use of “agency” to identify Executive Branch entities which utilize a statutory administrative procedure and which possess quasi-judicial authority in some circumstances.18 Generally, records of a court are in that court’s custody and control;19 and while the Supreme Court has superintending control over district courts, no district court has superintending control over the Supreme Court or other district courts.20 Thus, the usual construction of “agencies” in § 19 would not include the Oklahoma Supreme Court as an agency whose records are subject to control by a district court. ¶8 Section 19 states that “[u]pon entry of an order to seal the records, or any part thereof, the subject actions shall be deemed never to have occurred . . . .” and a record sealed pursuant to § 18, “if not unsealed within ten (10) years of the expungement order, may be obliterated or destroyed at the end of the ten-year period.” 22 O.S.Supp.2009 §19 (D), (K). However, in a Bar disciplinary matter this Court’s scrutiny of a lawyer’s conduct is not limited to either a ten- or twenty- year-period21 preceding the filing of the complaint in this Court. ¶9 A lawyer’s record of prior professional conduct is always open to scrutiny by this Court when he or she is before the Court in a professional disciplinary matter. We have explained that there is no equitable statute of limitations in Bar disciplinary proceedings and that “[t]his Court does not take lightly charges against a member of the Bar regardless of when they occurred.” State ex rel. Oklahoma Bar Association v. Dobbs, 2004 OK 46, ¶ 110, 94 P.3d 31, 71, emphasis added.22 We have explained that “[i]n imposing discipline, the court evaluates the entire record of an attorney’s professional conduct and scrutinizes the record to determine whether the alleged offenses are a mere blotch on an otherwise untainted career, or just one long series of ethically questionable actions.” Dobbs, at ¶ 111. A lawyer’s record of professional conduct of more than thirty years without a disciplinary action has been used as a mitigating factor in imposing discipline. State ex rel. Oklahoma Bar Association v. Berger, 2008 OK 91, ¶¶ 15-16, 202 P.3d 822, 826. Thus, a lawyer’s record of professional missteps as well a lawyer’s record without missteps are important to this Court’s assessment of the appropriate discipline.
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¶10 This Court has also explained that “[t]he 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 Association v. Wilburn, 2010 OK 25, ¶ 4, 236 P.2d 79, 80. Our nondelegable and exclusive jurisdiction in Bar matters has been stated often by this Court,23 and it includes every aspect24 of a disciplinary inquiry involving the authority of the Oklahoma Bar Association, and our jurisdiction herein is not a novel principle unknown to the Legislature when it crafted 22 O.S. §§ 18 & 19.25 Sections 18 and 19 express no indication of any intent by the Legislature to encroach upon the Court’s jurisdiction in Bar matters. ¶11 The Court’s need for a complete record of a lawyer’s professional conduct in a disciplinary action and the exclusive jurisdiction of this Court in Bar disciplinary matters explains, in part, why examination of a lawyer’s conduct is not necessarily limited to the ten years preceding the filing of the disciplinary complaint in this Court, and why 22 O.S. §§ 18 & 19 should not apply to Bar proceedings. We conclude that 22 O.S.Supp.2009 §§ 18, 19 do not apply to Bar disciplinary records in this Court, and thus do not apply to Spilman’s disciplinary proceedings. ¶12 The Court recognizes that it has implemented §§ 18 and 19 for the purpose of sealing and expunging civil appellate records that are related to sealed and expunged district court proceedings. Expungement of records Persons who have obtained an order of expungement from a district court, pursuant to Title 22, Sections 18 and 19, may seek expungement of related civil appellate records in this Court for retained cases as well as those that stand or stood assigned to the Oklahoma Court of Civil Appeals. Those persons who seek a district court’s expungement by appeal or writ may seek this court’s order directing the clerk to keep certain materials sealed pending the outcome of the case. 12 O.S.Supp.2009 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.260 (emphasis added). Both Rule 1.261 and Rule 1.262 refer to “appellate records” to be, or which have been, expunged by the Court.26 While an appeal is, 2316
for several purposes, a continuation of the proceeding commenced in the lower court,27 a Bar disciplinary record is created in a sui generis proceeding28 by the exercise of the Court’s original, not appellate, jurisdiction;29 and substantive differences exist between this Court’s exercise of general civil appellate jurisdiction and the original jurisdiction that is exercised in a Bar matter.30 ¶13 We conclude that Oklahoma Supreme Court Rules 1.260, 1.261, and 1.262 do not apply to Bar disciplinary records. The records in State of Oklahoma ex rel. Oklahoma Bar Association v. Spilman, 1995 OK 60, 898 P.2d 152 and In the Matter of the Reinstatement of Spilman, 2004 OK 79, 104 P.3d 576, were not created in the process of civil appeals and Rules 1.260, 1.261, and 1.262 do not apply to them.31 ¶14 Once a formal complaint has been brought, it is this Court’s constitutional duty to ensure that the goals of lawyer discipline are carried out. These goals include “(1) preservation of public trust and confidence in the Bar by strict enforcement of the profession’s integrity, (2) protection of the public and the courts and (3) deterrence of like behavior by both the disciplined lawyer and by other members of the Bar . . . .” State ex rel Oklahoma Bar Association v. Caldwell, 1994 OK 57, 880 P.2d 349, 353. These first two goals include the Court’s recognition that public confidence in the legal practitioner is essential to the proper functioning of the profession,32 and that it is essential in disciplinary matters to preserve the public’s confidence in the legal system as well as in the judiciary that licenses its practitioners.33 ¶15 In State ex rel. Oklahoma Bar Association v. Trower, 1963 OK 93, 381 P.2d 142, we stated the following. . . . the facts still remain that it is not for the sake of the individual member of the legal profession, nor the Oklahoma Bar Association, that men and women are licensed to engage in the practice of law. It is for the benefit of the public. Id. 381 P.2d at 144. We have explained that a lawyer’s continued good moral character is required throughout the lawyer’s lifetime.34 The public’s interest in the professional conduct of a lawyer is a continuing interest throughout the lawyer’s professional career. We have explained that the public must have confidence that the legal profession,
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which is self-regulated, will not disregard an offending lawyer’s conduct,35 and this includes the continuing nature of the lawyer’s conduct and this Court’s continuing function in not disregarding an offending lawyer’s conduct. In a disciplinary proceeding this Court is serving that public interest when it “evaluates the entire record of an attorney’s professional conduct and scrutinizes the record to determine whether the alleged offenses are a mere blotch on an otherwise untainted career, or just one long series of ethically questionable actions.” State ex rel. Oklahoma Bar Association v. Dobbs, 2004 OK 46, ¶ 110, 94 P.3d 31, 71. ¶16 A Court-created Bar disciplinary procedure that would mirror 22 O.S. §§ 18 and 19 would prevent the Court from maintaining a lawyer’s complete disciplinary record during that lawyer’s professional career, thwart the public obtaining knowledge of the disciplinary record of a lawyer’s professional conduct,36 and attack both the public’s interest in a lawyer fulfilling continuing ethical obligations and this Court’s function in evaluating the continuing professional conduct of the lawyer. Spilman was reinstated to membership in the Bar Association. In the Matter of the Reinstatement of Spilman, 2004 OK 79, 104 P.3d 576. We noted therein that Spilman had a “heavy burden” to “establish affirmatively that, if readmitted . . . [her] conduct will conform to the high standards required of a member of the Bar.” Id. at ¶ 4 (language omitted and explanation added). However, Spilman, like all lawyers who satisfy their respective burdens upon admission or reinstatement, do not thereby also satisfy their continuing burden to actually conform to the high standards required by members of the Bar. Spilman’s attainment of her Executive Pardon is commendable, but the issuance of a Pardon does not encroach upon the Court’s inherent power over lawyer disciplinary proceedings. In re Bozarth, 1936 OK 811, 63 P.2d 726, 730.37 We thus decline to create a procedure or rule for disciplinary proceedings that would mirror 22 O.S. §§ 18 and 19 and Supreme Court Rules 1.260 -1.262.38 ¶17 In summary, we assume original jurisdiction and deny the application to seal and expunge records in Petitioner’s Bar Disciplinary proceedings. The request to seal and expunge the record in the present proceeding is also denied. We hold that 22 O.S.Supp.2009 §§ 18 and 19, and Oklahoma Supreme Court Rules 1.260, 1.261, and 1.262 do not apply to the records in an Oklahoma Supreme Court Vol. 81 — No. 28 — 10/16/2010
Bar disciplinary proceeding. We decline to adopt a procedure or rule for sealing and expunging Bar disciplinary proceedings after a disciplined lawyer has complied with the requirements of 22 O.S.Supp.2009 §§ 18-19. ¶18 ALL JUSTICES CONCUR. 1. In the Matter of the Reinstatement of Spilman, 2004 OK 79, ¶ 1, 104 P.3d 576, 577. 2. State of Oklahoma ex rel. Oklahoma Bar Association v. Spilman, 1995 OK 60, 898 P.2d 152. 3. In the Matter of the Reinstatement of Spilman, 2004 OK 79, 104 P.3d 576. 4. Application for Expungement of Record, No.108,544 (filed July 27, 2010) (“Exhibit B”, Pardon and Parole Board Letter & Executive Order, Certificate of Pardon). 5. Application for Expungement of Record, No.108,544 (July 27, 2010) (“Exhibit C”, Order Granting Defendant’s Petition to Seal Records and for Expungement of Criminal Records, No. MI-07-161, Dist. Crt. Tulsa Cnty., March 28, 2008). The Order of the District Court, Exhibit C, at page 2 and paragraph number 6, states that case CF-1994-180 was dismissed by the State and case CF-79-693 was dismissed by the Court at Spilman’s Preliminary Hearing. 6. Application for Expungement of Record, No.108,544 (July 27, 2010) (“Exhibit D”, Application for Order Nunc Pro Tunc, and “Exhibit E”, Order Nunc Pro Tunc, No. MI-07-161, Dist. Crt. Tulsa Cnty.). 7. Application for Expungement of Record, No.108,544 (July 27, 2010) (“Exhibit C”, Order Granting Defendant’s Petition to Seal Records and for Expungement of Criminal Records, No. MI-07-161, Dist. Crt. Tulsa Cnty., March 28, 2008, at page 2, paragraph number 9. 8. Petitioner relies upon 12 O.S.Supp.2009 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.260, Expungement of Records, for sealing the record in the present proceeding. Rule 1.260 states, in part, that applicants who seek a district court’s expungement by appeal or writ may seek an order from this Court “directing the clerk to keep certain materials sealed pending the outcome of the case.” (Emphasis added). The present proceeding is not an application seeking a district court’s expungement, but an expungement by this Court of its own records. 9. Although her application does not identify with specificity the proper extraordinary remedy herein, we assume for the purpose of adjudicating her request that she seeks a writ directed to the Clerk of this Court in his role as the Court’s custodian of the Court’s records, and that such writ should issue based upon the statutes and court rules she expressly relies on, or in the alternative, a procedure or rule fashioned herein by this Court for Bar matters that would serve for this controversy as substantive law enforced by the proper procedural writ. 10. Because we deny the application to seal and expunge records maintained by the Clerk of this Court in disciplinary proceedings and reject the application of 22 O.S. §§ 18 and 19 to Bar matters, we need not address whether application of such statutes should require Spilman’s files held and maintained by the Bar Association to be treated similar to records not sealed to law enforcement agencies for law enforcement purposes. 11. Rule 3.2. Rules Governing Disciplinary Proceedings, 5 O.S. 2001 Ch. 1, App. 1-A, Duties [of General Counsel]. The General Counsel of the Oklahoma Bar Association shall have the following powers and duties in the area of discipline under these Rules: . . . . (g) To maintain permanent records of all active and inactive discipline and disability matters, subject to the expungement requirements of Rule 3.2(h), as follows: (1) All inactive disciplinary matters where a formal complaint has been filed with the Supreme Court, shall be maintained indefinitely; (2) All inactive disciplinary matters where a member has resigned pending disciplinary proceedings or pending investigation which might result in disciplinary proceedings, shall be maintained indefinitely; (3) All inactive disciplinary matters where a private reprimand has been issued by the Professional Responsibility Commission shall be maintained indefinitely; (4) All inactive disciplinary matters where the General Counsel’s Office has investigated a grievance and reported the grievance to the Professional Responsibility Commission or its predecessor for action, shall be maintained for a period of three (3) years from the date the grievance is made inactive;
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(5) All inactive disciplinary matters where the General Counsel has disposed of the grievance by informal procedures, shall be maintained for a period of three (3) years from the date the grievance is made inactive. (h) To expunge after three (3) years all records of the Commission relating to grievances terminated by dismissal, except that the General Counsel shall retain a docket showing the names of each respondent and complainant, the final disposition, and the date all records relating to the matter were expunged, except that the General Counsel may, prior to the expiration of the three (3) years, apply to the Commission for an additional three (3) years which application shall be granted upon a showing of good cause and with notice to respondent; expunge other grievances as directed by the Commission pursuant to Rule 5.3(b). 12. The 2001 version of § 18 lists 7 circumstances. The three additional circumstances in the 2009 version are factual innocence established by DNA, § 18 (3), a full pardon with a written finding by the Governor of actual innocence, § 18 (4), and when a person has been charged or arrested for a crime committed by another person who appropriated or used that person’s identity without consent or authority, § 18 (10). 13. 22 O.S.Supp.2009 §18. Expungement of records — Persons authorized Persons authorized to file a motion for expungement, as provided herein, must be within one of the following categories: 1. The person has been acquitted; 2. The conviction was reversed with instructions to dismiss by an appellate court of competent jurisdiction, or an appellate court of competent jurisdiction reversed the conviction and the district attorney subsequently dismissed the charge; 3. The factual innocence of the person was established by the use of deoxyribonucleic acid (DNA) evidence subsequent to conviction, including a person who has been released from prison at the time innocence was established; 4. The person has received a full pardon on the basis of a written finding by the Governor of actual innocence for the crime for which the claimant was sentenced; 5. The person was arrested and no charges of any type, including charges for an offense different than that for which the person was originally arrested are filed or charges are dismissed within one (1) year of the arrest, or all charges are dismissed on the merits; 6. The statute of limitations on the offense had expired and no charges were filed; 7. The person was under eighteen (18) years of age at the time the offense was committed and the person has received a full pardon for the offense; 8. The offense was a misdemeanor, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the judgment was entered; 9. The offense was a nonviolent felony, as defined in Section 571 of Title 57 of the Oklahoma Statutes, the person has received a full pardon for the offense, the person has not been convicted of any other misdemeanor or felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the conviction; or 10. The person has been charged or arrested or is the subject of an arrest warrant for a crime that was committed by another person who has appropriated or used the person’s name or other identification without the person’s consent or authorization. For purposes of this act, “expungement” shall mean the sealing of criminal records. Records expunged pursuant to paragraph 10 of this section shall be sealed to the public but not to law enforcement agencies for law enforcement purposes. 14. The language quoted and citation provided by Spilman in her application shows that she relies upon the language in 2004 version of § 18 (8) which appears in the 2009 version of § 18 (9). The 2004 version of the statute appears to have been in effect in September 2007 when her district court application was adjudicated, and the 2009 version appears to have been in effect in July 2010 when she filed her application in this Court. Spilman does not raise any issue concerning different versions of § 18, we need not discuss further any differences in the versions of § 18, and we cite the 2009 version of § 18 herein for the purposes of uniformity and clarity. 15. A district court order granting or denying a 22 O.S.Supp. 2009 § 18 application to seal and expunge a criminal record is based upon the procedure provided by 22 O.S.Supp. 2009 § 19, and a district court’s order may be appealed to the Oklahoma Supreme Court. 22 O.S.Supp. 2009 § 19 (C). 16. 22 O.S.Supp.2002 § 19. Sealing and unsealing of records — Procedure
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A. Any person qualified under Section 18 of this title may petition the district court of the district in which the arrest information pertaining to the person is located for the sealing of all or any part of the record, except basic identification information. B. Upon the filing of a petition or entering of a court order, the court shall set a date for a hearing and shall provide thirty (30) days of notice of the hearing to the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of such record. C. Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part thereof except basic identification information, to be sealed. If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records. Any order entered under this subsection shall specify those agencies to which such order shall apply. Any order entered pursuant to this subsection may be appealed by the petitioner, the district attorney, the arresting agency, or the Oklahoma State Bureau of Investigation to the Oklahoma Supreme Court in accordance with the rules of the Oklahoma Supreme Court. In all such appeals, the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings. D. Upon the entry of an order to seal the records, or any part thereof, the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person. E. Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person in interest who is the subject of such records, the Attorney General, or by the district attorney and only to those persons and for such purposes named in such petition. F. Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or otherwise, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records provide information that has been sealed, including any reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant’s refusal to disclose arrest and criminal records information that has been sealed. G. All arrest and criminal records information existing prior to the effective date of this section, except basic identification information, is also subject to sealing in accordance with subsection C of this section. H. Nothing in this section shall be construed to authorize the physical destruction of any criminal justice records. I. For the purposes of this section, sealed materials which are recorded in the same document as unsealed material may be recorded in a separate document, and sealed, then obliterated in the original document. J. For the purposes of this act, district court index reference of sealed material shall be destroyed, removed or obliterated. K. Any record ordered to be sealed pursuant to Section 1 et seq. of this title, if not unsealed within ten (10) years of the expungement order, may be obliterated or destroyed at the end of the ten-year period. L. Subsequent to records being sealed as provided herein, the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, or other interested person or agency may petition the court for an order unsealing said records. Upon filing of a petition the court shall set a date for hearing, which hearing may be closed at the court’s discretion, and shall provide thirty (30) days’ notice to all interested parties. If, upon hearing, the court determines there has been a change of conditions or that there is a compelling reason to unseal the records, the court may order all or a portion of the records unsealed. M. Nothing herein shall prohibit the introduction of evidence regarding actions sealed pursuant to the provisions of this section at any hearing or trial for purposes of impeaching the credibility of a witness or as evidence of character testimony pursuant to Section 2608 of Title 12 of the Oklahoma Statutes. 17. A few examples may be found in this Court’s opinions where the term “agency” is used to describe the Court, such as when the Court acts “as a licensing agency for lawyers,” State ex rel. Oklahoma Bar Association v. Leigh, 1996 OK 37, 914 P.2d 661, 666, and the Bar Association has been described as a “State agency” created by the Court, Ford v. Bd. of Tax-Roll Corrections, 1967 OK 90, 431 P.2d 423, 431. 18. See, e.g., State ex rel. Oklahoma Bar Association v. Gasaway, 1993 OK 133, 863 P.2d 1189,1200 (The Oklahoma Supreme Court is not an
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“agency” for the purpose of the Oklahoma Administrative Procedures Act. 75 O.S.1991 § 250.3, nor is the Bar Association, as an arm of this court, such an agency for the purpose of that Act.); Bd. of Law Library Trustees of Okla. Cnty. v. State ex rel. Petuskey, 1991 OK 122, 825 P.2d 1285, 1290 (provisions of an administrative procedure statute which allow the district court to determine the legality of an agency’s rule in a declaratory judgment action do not apply to rules promulgated by the Supreme Court); 75 O.S.2001 § 250.3 (defining “agency” for the purpose of the Administrative Procedures Act and exempting the Legislature and the courts); Jackson v. Independent Sch. Dist. No. 16 of Payne Cnty., 1982 OK 74, n. 20, 648 P.2d 26, 31 (Quasi-Judicial power is a term applied to the action of public administrative officers or boards which investigate facts or ascertain the existence of facts; draw conclusions from them as a basis for official action; and exercise discretion of a judicial nature in connection with and incidental to the administration of matters entrusted to or assigned to the officers or board.). 19. Allen v. Lackey, 1947 OK 377, 188 P.2d 215, 217. Cf. Oklahoma Tax Commission v. Clendinning, 1943 OK 382, 143 P.2d 143, 152 (“The people are protected from vicious reports of grand juries not amounting to indictments or presentments by the court’s control over its journals and through the medium of motions to expunge from the official court records.”). 20. Board of Library Trustees of Oklahoma County v. State ex rel. Petuskey, 1991 OK 122, 825 P.2d 1285, 1290-1291 (The Supreme Court, its administrative director appointed under Art. 7 § 6, Okla. Const., and its Chief Justice exercising authority pursuant to that office could not be considered inferior officers to the district court for the purpose of review of either adjudicative or administrative decisions.); Board of Commissioners of Carter County v. Worten, 1927 OK 445, 261 P. 553, 554 (the Supreme Court has a superintending control over a district court and one district court has no superintending control over another); Harris v. Hudson, 1926 OK 613, 250 P. 532, 533-534 (district court has no superintending control over another district court). 21. Section 18(9) authorizes the application to seal expunge when “at least ten (10) years have passed since the conviction” and § 19(K) refers to a ten-year period after the order to seal a record. 22. See also State ex rel. Oklahoma Bar Association v. Warzyn, 1981 OK 23, 624 P.2d 1068, 1071 (“This Court does not take lightly charges against a member of the Bar, and in imposing disciplinary measures this Court wants the entire record of an attorney’s professional conduct before it.”); State ex rel. Oklahoma Bar Association v. Hensley, 1977 OK 23, 560 P.2d 567, 569 (“In determining appropriate discipline for respondent’s admitted unprofessional conduct, it is proper to consider his previous record concerning professional conduct.”); State ex rel. Oklahoma Bar Association v. Braswell, 1998 OK 49, ¶ 41, 975 P.2d 401, 413 (“Unless from the circumstances of the particular case it appears that it would be unjust or unreasonable to require a lawyer to respond to a grievance, we hold that no time period will per se bar a proceeding against a lawyer.”). 23. See, e.g., State ex rel. Oklahoma Bar Association v. Albert, 2007 OK 31, ¶ 11, 163 P.3d 527, 533; In re Reinstatement of Fraley, 2005 OK 39, ¶ 36, 115 P.3d 842, 852; Tweedy v. Oklahoma Bar Association, 1981 OK 12, 624 P.2d 1049, 1052; In re Integration of State Bar of Oklahoma, 1939 OK 378, 95 P.2d 113, 116. See also 12 O.S.2001 Ch. 15, App. 1, Okla. Sup. Ct. R. 1.17 (Court notes its role in adjudicating Bar disciplinary proceedings and states therein that “[t]he law vests in the Supreme Court alone” this function.). 24. State ex rel. Oklahoma Bar Association v. Livshee, 1994 OK 12, 870 P.2d 770, 773. 25. This Court presumes that legislative authority is exercised with a knowledge of this Court’s opinions. See, e.g., Bishop v. Takata Corp., 2000 OK 71, n. 14, 12 P.3d 459, 463, (discussion of legislative acquiescence to this Court’s construction of a statute). 26. Rule 1.261. Application for expungement. A party desiring expungement of appellate records must file an Application for Expungement with the Clerk of this Court. The Application shall state (1) the category under which the person was qualified to seek expungement in the district court, as set forth in Title 22, Section 18; and (2) the date the district court entered the order of expungement and the scope of that order. A certified copy of the party’s motion for expungement and of the district court’s order granting the motion shall be filed with the Application for Expungement. Rule 1.262. Inspection of expunged appellate records. Inspection of expunged appellate records may thereafter be permitted only by order of this Court. For purposes of this section, appellate records ordered expunged shall not be physically destroyed. See Title 22, Section 19. 27. GRP of Texas, Inc. v. Eateries, Inc., 2001 OK 53, ¶ 8, 27 P.3d 95, 98. See Woods v. Chicago, R.I. & P. Ry. Co., 1928 OK 62, 263 P.446, 447 (Since the filing of an appeal in the appellate court, under our appellate procedure, is not the commencement of an action, but is a continuation in
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the appellate court of the original action, appellant was not required to serve summons upon appellee.). 28. In the Matter of Evinger, 1979 OK 127, 604 P.2d 844, 845. 29. State ex rel Oklahoma Bar Association v. Armstrong, 1992 OK 130, 863 P.2d 1107, 1108. 30. See, e.g., State ex rel. Bar Association v. Clausing, 2009 OK 74, ¶ 4, 224 P.3d 1268, 1272 (In the exercise of the Court’s original jurisdiction in a Bar disciplinary proceeding the Court is “not restricted by the scope-of-review rules that govern corrective relief on appeal or on certiorari....”); State ex rel. Oklahoma Bar Association v. Combs, 2007 OK 65, ¶ 4, 175 P.3d 340, 344 (same). 31. We also note that when a 22 O.S. §§ 18-19 application is filed notice is provided to the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of the record. 22 O.S.Supp.2009 § 19(B). When a § 19 order is appealed “the Oklahoma State Bureau of Investigation is a necessary party and must be given notice of the appellate proceedings.” Id. at § 19(C). Since we decline to apply §§ 18 and 19 in this proceeding we need not address whether Spilman should have notified any of these entities of her application in this Court. 32. State ex rel. Oklahoma Bar Association v. Kinsey, 2009 OK 31, ¶ 35, 212 P.3d 1186, 1197. 33. State ex rel. Oklahoma Bar Association v. Gassaway, 2008 OK 60, ¶ 80, 196 P.3d 495, 510. 34. State ex rel. Oklahoma Bar Association v. Burns, 2006 OK 75, ¶ 30, 145 P.3d 1088, 1094. See In re Bond, 1934 OK 228, 31 P.2d 921 (a lawyer’s good moral character upon admission is required and it is “equally essential” afterwards) (syllabus by the Court). 35. State ex rel. Oklahoma Bar Association v. Burns, 2006 OK 75, ¶ 32, 145 P.3d 1088, 1095, quoting State ex rel. Oklahoma Bar Association. v. Giger, 2001 OK 96, ¶ 21, 37 P.3d 856, 864. 36. The fact that disciplinary proceedings result in written opinions published in the Court’s official reporter and on the Court’s web site is insufficient to satisfy the public’s interest so as to justify the creation of a rule to implement 22 O.S. § 19 in a Bar matter. Section 19 (D) states that upon sealing “the subject official actions shall be deemed never to have occurred” and “no such record exists with respect to such person.” This language is inconsistent with the necessary evaluation of the conduct of a lawyer in a Bar matter and the public’s interest in the ethical conduct of the lawyer continued after admission or reinstatement. 37. Spilman’s pardon was not based upon a written finding by the Governor that she was innocent of the crime for which she was convicted. We need not address in today’s opinion the effect of a Governor’s finding of innocence upon a Bar disciplinary proceeding. 38. This controversy does not involve the public policies which support a Rule 10 confidential proceeding when a lawyer is personally incapable of practicing law and the Supreme Court has not ordered the record therein to be a public record. 5 O.S. 2001 Ch. 1, App. 1-A, Rules Governing Disciplinary Proceedings, Rule 10.12.
OPALA, J., with whom TAYLOR, V.C.J., joins, concurring ¶1 Although I join the court’s opinion, I write separately to add my own thoughts and analysis about the public’s right of access to information about one’s status at the Bar, both past and present. ¶2 This case calls upon us to focus today upon the public’s claim to know the background status of a lawyer presently engaged in providing legal services under a license from this state. One engaged in the practice of a profession that serves the public under a state license offers his full professional status as a licensee for ready public access and scrutiny. All information that pertains to a licensee’s qualification or status, past or present, must be made available and released to the public. Any impediment to full disclosure would be utterly inconsistent with public interest and constitute
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an unwarranted as well as impermissible government secrecy to the detriment of the people this court is duty-bound to serve in its official capacity of policing the profession’s conduct. The judicial service of government conducts all of its official business in the light of every day. The cover of darkness must not be allowed to stretch across any of its activities mandated by the constitutions, federal or state. ¶3 The judiciary must live in the sunshine of free and unimpeded information exchange. Its Bar cannot suppress access to government-collected data in its possession. A contrary rule would introduce a process of internal censorship that will destroy the freedom of information and public access to what government keeps in its file. ¶4 The executive act of granting a pardon will erase the legal effect and the factum of one’s prior conviction, but it cannot and does not reach as far as to command the judiciary, a separate and independent service, to alter its files that reveal a professional history of licensed lawyers.1 ¶5 A chief executive’s pardon affects neither the Bar status of a person nor that individual’s professional file contents. Pardon has absolutely no effect on one’s claim to a license to practice law. A post-pardon reinstatement does not operate to erase from a licensed lawyer’s file the factum of a prior conviction and disbarment. These historical entries will not be expunged as legally obliterated by the governor’s pardon. The chief executive’s act of pardoning cannot reach that far. It is only an act of forgiveness that cleans the slate of the conviction and of its legal consequences. Since the Bar status remains unaffected, so does the licensed lawyer’s file at the Bar. ¶6 No provision of Oklahoma’s law mandates that the Bar’s personal file of a lawyer be purged of information that pertains to a pardoned criminal conviction. The Bar’s continued retention of these criminal record entries is not inconsistent with any constitutional command. Nay, the Bar’s position fully accords with the fundamental law’s notion of judicial freedom from executive dominance. Absent a valid legal mandate clearly directing expungement, we are utterly free to continue the present policy. ¶7 Retention of the data sought to be expunged is absolutely needed for the ongoing protection of the public from unsafe and 2320
unworthy-of-confidence legal practitioners.2 In the exercise of its constitutionally conferred powers over the licensing and discipline of lawyers the Supreme Court will and must continue the present Bar practice of not excising from the file any of the lawyer’s pardoned criminal convictions. ¶8 Exclusion of the public from a trial3 presents a situation similar in law to exclusion of the public from access to public records.4 In both instances at stake is the public’s right to know. The critical difference between these two situations is that here there is no concern for the protection to be secured to safeguard a fair trial of a criminal defendant. Here we are not dealing with a pending criminal proceeding and a problem of guarding against contamination of public opinion about one’s guilt in advance of the trial. ¶9 But both issues implicate the free speech clause of the First Amendment — a clause that gave birth to a constitutional public right to know. In this case the knowledge sought to be withheld is that of public facts dealing with a publicly licensed practitioner.5 The law cannot and will not force the judicial service of government into any complicity to conceal public facts in its rightful possession. ¶10 In sum, there is no constitutional right to support petitioner’s claim for expungement from the Bar record of entries that pertain to her pardoned criminal conviction. I hence concur in the court’s opinion. 1. A conviction “is not wiped out by a pardon, as the pardon by the executive power does not blot out the solemn act of the judicial branch of the government.” Kellogg v. State, 1972 OK CR 345, ¶6, 504 P.2d 440. A pardoned criminal conviction may be used for purposes of enhancing punishment on a subsequent conviction. Id.; 21 O.S.Supp.2002 § 51.1. See also Stone v. Oklahoma Real Estate Commission, 1962 OK 55, 369 P.2d 642 (the effect of a pardon in the case of an applicant for a broker’s license was to restore to him his rights of citizenship removing all penalties and legal disabilities, but it “does not wipe the slate clean” and “cannot and does not substitute a good reputation for one that is bad”). 2. A licensed practitioner’s past disciplinary history (whether by an unpublished private reprimand or a published opinion) is considered in assessing the appropriate quantum of discipline. State ex. rel. Oklahoma Bar Assn. v. Minter, 2001 OK 69, 37 P.3d 763; State ex rel Oklahoma Bar Association v. Clausing, 2009 OK 74, ¶22, 224 P.3d 1268. 3. Gannett Co., Inc v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608(1979). 4. Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). 5. Expungement of records presents constitutional challenges of speech and press restrictions flowing out of the principle enunciated in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973448 U.S. 555 (1980), that “the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors.”
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Court of Criminal Appeals Opinions 2010 OK CR 22 STATE OF OKLAHOMA, Appellant, v. JOHNNY Q. SITTINGDOWN, Appellee. Case No. S-2009-755. September 30, 2010 OPINION LUMPKIN, JUDGE: ¶1 Appellee, Johnny Q. Sittingdown, was charged by Information February 21, 2007, as amended July 28, 2008, in the District Court of Woods County, Case No. CF-2007-17, with two counts of Unlawful Possession of Controlled Dangerous Substance With Intent to Distribute Within 2000 Feet of a School (Methamphetamine), After Former Conviction of a Felony (63 O.S.Supp.2005, § 2-401). Following the preliminary hearing the magistrate, the Honorable Mickey Hadwiger, dismissed the Information after suppressing the State’s evidence. ¶2 The State appealed the adverse ruling of the magistrate pursuant to 22 O.S.2001, § 1089.1. Following a hearing before the Honorable Ray Dean Linder, District Judge, the ruling of the magistrate was affirmed. The State appeals to this Court pursuant to 22 O.S.2001, § 1089.7. ¶3 This appeal was automatically assigned to the Accelerated Docket of this Court. Rule 11.2(A)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010). Oral argument was held April 8, 2010, pursuant to Rule 11.2(E). At the conclusion of oral argument, the matter was taken under advisement.1 ¶4 The record reflects that the Woods County Sheriff’s Office was delivered a Writ of Execution to serve on Appellee. Deputy Swenn served the writ on Appellee at 4:00 p.m., on February 16, 2007. Two other deputies accompanied him to serve the court order. The “Writ of General Execution” stated in part: NOW, THEREFORE, You are commanded that of the goods and chattels of the said John Sittingdown, an individual, you cause the money above specified to be made; and for want of goods and chattels you cause the same to be made by EXECUTING ON THE CASH REGISTER AT THE DEBTOR’S PLACE OF BUSINESS AS WELL 2322
AS ANY CASH ON THE PERSON OF MR. JOHN SITTINGDOWN. And make return of this Execution, with your certificate thereon, showing the manner you have executed the same, within sixty days from the date hereof. ¶5 When the deputies arrived at the establishment, Appellee was leaving the bar. Deputy Swenn informed Appellee he had a paper to serve him and suggested they step back inside. Swenn asked Appellee “to take all of his money, everything out of his pockets.” (Tr. 11). When Appellee started emptying his left front pocket, a small clear baggie containing a white crystal substance (methamphetamine) was mixed in with the money. Appellee was taken into custody. ¶6 An Alva Police Department K-9 was walked around Appellee’s vehicle and alerted to the odor of narcotics from the vehicle. Appellee gave consent to the search of his vehicle, which was parked in front of the bar. Paraphernalia containing a white residue, a money bag marked “Ira’s” which contained money and half of an envelope with seven names on it, and the other half of the envelope with five bags of methamphetamine were found in the vehicle. Pursuant to a subsequent search warrant for Ira’s Bar, issued by the District Court, ten red small jeweler’s bags and two clear, cut-corner bags containing methamphetamine and a recipe to manufacture methamphetamine were found. Ira’s Bar is located approximately seventy-five feet from a vo-tech school. ¶7 The magistrate suppressed all of the evidence finding a writ of execution would not authorize or allow deputies to ask Appellee to empty his pockets. While the reviewing judge determined the officers proceeded in good faith as they executed the civil writ and proceeded in good faith after that, he found Deputy Swenn exceeded his authority when he asked Appellee to take everything out of his pocket as there was not probable cause at that time. ¶8 The State argues the District Court erred in invoking the exclusionary rule and suppressing the evidence resulting from the service of the writ of execution, from the probable
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cause established by the “hit” of the drug dog and from the service of the search warrant. Appellee answers that the District Court properly invoked the exclusionary rule and suppressed the evidence in this case because the writ was void on its face, the deputies exceeded their authority and that the remaining evidence obtained from the search of Appellee’s vehicle and the business were “fruit of the poisonous tree.” ¶9 A law enforcement officer’s execution of a writ or a civil order upon an individual’s real or personal property constitutes a “seizure” within the meaning of the Fourth Amendment. Soldal v. Cook County, Ill., 506 U.S. 56, 61, 113 S.Ct. 538, 543, 121 L.Ed.2d 450 (1992). The United States Supreme Court has recognized that the Fourth Amendment applies in the civil context as well as the criminal context. Id., 506 U.S. at 67, 113 S.Ct. at 546. The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, provides in part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….” See Mapp v. Ohio, 367 U.S. 643, 646 n.4, 81 S.Ct. 1684, 1687 n.4, 6 L.Ed.2d 1081 (1961). Generally, warrantless seizures are presumed unreasonable. Harjo v. State, 1994 OK CR 47, ¶ 21, 882 P.2d 1067, 1073. However, no warrant is required when the seizure occurs pursuant to a civil order or writ. Soldal, 506 U.S. at 67 n.11, 113 S.Ct. at 546 n.11; (citing G.M. Leasing Corp. v. U.S., 429 U.S. 338, 351-52, 97 S.Ct. 619, 628, 50 L.Ed.2d 530 (1977)). In contrast, a municipal inspector must obtain a search warrant before conducting an administrative search of an individual’s home. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 534, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967) (“administrative searches of the kind at issue here are significant intrusions upon the interests protected by the Fourth Amendment, that such searches when authorized and conducted without a warrant procedure lack the traditional safeguards which the Fourth Amendment guarantees to the individual ....”). Likewise, the Internal Revenue Service may not intrude into the privacy of an individual’s home or office to execute a tax levy without first obtaining a search warrant. G.M. Leasing Corp. 429 U.S. at 354-55, 97 S.Ct. at 629-30. ¶10 Civil orders and writs are, by their very nature, distinct from administrative searches, tax levies or a warrantless seizure. A writ of Vol. 81 — No. 28 — 10/16/2010
execution is “[p]rocess issuing from a court in a civil action authorizing the sheriff or other competent officer to carry out the court’s decision in favor of the prevailing party.” Black’s Law Dictionary 568 (6th ed. 1990). Its purpose is the collection of a judgment in a civil matter. An execution is the fruit and end of the suit, and is very aptly called the life of the law. The suit does not terminate with the judgment; and all proceedings on the execution, are proceedings in the suit …. Bank of U.S. v. Halstead, 23 U.S. 10 Wheat 51, 64, 6 L.Ed. 264 (1825). The writ existed at common law and predates the Magna Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 18 How. 272, 277, 15 L.Ed. 372 (1855). ¶11 Oklahoma has codified the issuance of the writ of execution. Oklahoma civil procedure permits a civil court litigant to execute upon a judgment debtor’s lands, tenements, goods and chattels, which are not otherwise exempt by law, to satisfy an outstanding judgment. 12 O.S.2001, § 731 et seq. The writ of execution may only be issued by a court of record in this state. 12 O.S.2001, § 736. It is civil process of the court directed to a county sheriff. 12 O.S.2001, § 731. ¶12 As opposed to criminal or administrative searches, the subject of a civil order or writ has prior notice and opportunity to be heard. A writ of execution may only be issued following the entry of judgment. 12 O.S.2001, § 706(D). The parties are provided notice upon the initiation of the lawsuit. 12 O.S.2001, § 2004.2. The non-prevailing party is given notice of the entry of the judgment. 12 O.S.Supp.2007, § 696.2. Generally, no writ of execution may issue for ten (10) days following entry of the judgment. 12 O.S.2001, § 990.3(A). The subject of the order or writ may initiate challenges or take measures to avoid the writ of execution. See 12 O.S.2001, § 1031 (motion to vacate or modify judgment or order); 12 O.S.Supp.2004, § 706.2 (cash deposit ceases judgment lien); 12 O.S.2001, § 1036 (motion for order suspending collection proceedings); 12 O.S.Supp.2002, § 990A (appeal); 12 O.S.Supp.2009, § 990.4 (stay of enforcement of judgment). ¶13 Because a civil order or writ is court process, the resulting seizure’s constitutionality is subject to the “ultimate standard” of “reasonableness.” Soldal, 506 U.S. at 71, 113 S.Ct. at 549; quoting Camara, 387 U.S., at 539, 87 S.Ct., at
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1736. In Soldal the Supreme Court noted that where officers were acting pursuant to a court order, a showing of unreasonableness in the execution of the civil process would be a “laborious task indeed.” Soldal, 506 U.S. at 71, 113 S.Ct. at 549. ¶14 The seizure in the present case was reasonable. The seizure was conducted solely pursuant to the civil writ of execution. The writ has not been shown to be unreasonable on its face. No challenge was made to the writ in the District Court. Furthermore, the officer’s actions did not go outside the authority of the writ. The writ was executed as it was presented to the officer. ¶15 The writ of execution authorized the officer to assume control and dominion over the contents of Appellee’s pockets. A writ of execution is a command to the officer, to whom it is directed, to collect the money specified in the writ from the goods and chattels of the debtor. 12 O.S.2001, § 736. The officer to whom the writ is directed has a duty at law to execute the writ, levy against the goods and chattels of the judgment debtor, and to pay over all moneys collected or received to the judgment creditor. 12 O.S.2001, § 811. The power of levy authorizes the officer to take possession of the judgment debtor’s property. The Oklahoma Supreme Court, relying upon the various authorities available at the time, described it as follows: Our statutes specify the contents of an execution that shall be issued by a justice of the peace, section 994, Okla. St. 1931, 39 Okla. St. Ann. § 283; but other than specifying that it shall be collected out of the personal property of the debtor, there are no directions with respect to the manner or method of making the levy upon the property found and subjected to the levy. However, as is said in 36 C. J. 1032, see. 2B “A levy, as applied to writs, is a word with a well-defined meaning,” and “In its original sense, an actual making the money out of the property; the obtaining of money by seizure and sale of property. In its secondary sense, seizing the property preliminary to making the money out of it. * * *” The annotations on the quoted text and the text following the quotations make it obvious that a levy is made when property is seized by virtue of the authority of a writ of execution. 23 C. J. 430; Words & Phrases, Levy, Writs; 21 Am. Jur. 58, §§107 et seq., and the 2324
cases cited thereunder. In 21 Am. Jur. 58, § 107, it is said: In regard to a levy of execution upon personal property, the law generally does not prescribe any special or detailed methods of procedure. Assuming the authority of an officer to make a levy of execution upon personal property to be complete, the question of what constitutes a valid levy thereon seems to depend upon the combined results of the circumstances of each particular case, rather than upon the existence or nonexistence of any one circumstance which properly may, or usually does, accompany, evidence, or form a part of, the act of making a levy. In general, it may be said that to constitute a valid levy of execution upon personal property, the officer must interfere with the possession of the property in such a manner that he would be amenable to an action for trespass were it not for the protection afforded him by the writ. Farris v. Castor, 1940 OK 7, ¶ 9, 99 P.2d 900, 902 (quotations and citation omitted). In making a valid levy, it is essential that the officer executing the order assumes control and dominion over the property. See Fiegel v. First Nat’l Bank, 1923 OK 112, ¶ 16, 214 P. 181, 184. ¶16 When Appellee emptied his pockets pursuant to the officer’s execution of the writ, the officer perceived in plain view a small baggie of what appeared to be a controlled dangerous substance. Seizure of this baggie in the course of execution of the civil writ did not violate the Fourth Amendment. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) (the plain view doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless comes across an incriminating object); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). ¶17 In addition to the fact that the actions of the officers were reasonable, they were also acting in “good faith” and their actions fall directly under the criteria outlined by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 920-21, 104 S.Ct. 3405, 3419, 82 L.Ed.2d 677 (1984). Since this Court has previously held in DeGraff v. State, 1901 OK CR 82, 103 P. 538, 541; State v. Thomason, 1975 OK CR 148, ¶ 14, 538 P.2d 1080, 1086; and Long v. State,
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1985 OK CR 119, ¶ 6. 706 P.2d 915, 916-17, that the Federal Constitution and the Oklahoma Constitution are the same in the rights protected, we find Leon is applicable here. The exclusionary rule is not applied when a law enforcement officer has conducted a search in “objectively reasonable reliance” upon a search warrant issued by a magistrate and has abided by the terms of the warrant even if the warrant is subsequently determined to be invalid. See Leon, 468 U.S. at 922, 104 S.Ct. at 3420. The same rationale applies to a civil writ or order. The fruits of a search and seizure pursuant to a civil writ will not be suppressed even if the writ is subsequently found invalid if the officer acted in “objectively reasonable reliance” upon the civil writ and abided by its terms.
DATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF WOODS COUNTY THE HONORABLE RAY DEAN LINDER, DISTRICT JUDGE APPEARANCES AT TRIAL Danny Lohmann, Westline Ritter, Assistant District Attorneys, 407 Government Street, Ste 10, Alva, Oklahoma 73717, Counsel for the State Stephen Jones, April M. Davis, Jones, Otjen & Davis, 114 E. Broadway, Ste 1100, Enid, Oklahoma 73702, Counsel for Defendant APPEARANCES ON APPEAL
¶18 As set forth in Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 1165-66, 94 L.Ed.2d 364 (1987) (citation omitted), “the ‘prime purpose’ of the exclusionary rule ‘is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.’” “Indiscriminate application of the exclusionary rule, therefore, may well ‘generat[e] disrespect for the law and administration of justice.’” Leon, 468 U.S. at 908, 104 S.Ct. at 3412 (quoting Stone v. Powell, 428 U.S. 465, 491, 96 S.Ct. 3037, 3051, 49 L.Ed.2d 1067 (1976)). The reviewing judge found the officers in this case proceeded in good faith. We agree. We find no evidence of police misconduct or unlawful conduct. The officer’s seizure and search were conducted in objectively reasonable reliance of the writ of execution. The officers acted as reasonable officers would and should act in similar circumstances.
Danny Lohmann, Westline Ritter, Assistant District Attorneys, 407 Government Street, Ste 10, Alva, Oklahoma 73717, Counsel for Appellant
¶19 Therefore, finding the District Court erred in invoking the exclusionary rule and suppressing the evidence in this case, the State’s appeal is granted and the matter is reversed and remanded to the District Court for further proceedings consistent with this Opinion. The remaining propositions of error are rendered moot.
¶1 I would find that the officers exceeded their authority as granted to them pursuant to the Writ of Execution. I would affirm the prior Judges’ rulings.
DECISION
Case No. D-2007-825. October 12, 2010
¶20 The order of the District Court of Woods County suppressing the State’s evidence and dismissing the Information is REVERSED. The matter is REMANDED for further proceedings consistent with this Opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MAN-
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Stephen Jones, April M. Davis, Jones, Otjen & Davis, 114 E. Broadway, Ste 1100, Enid, Oklahoma 73702, Counsel for Appellee OPINION BY: LUMPKIN, JUDGE C. JOHNSON, P.J.: CONCUR IN RESULT A. JOHNSON, V.P.J.: CONCUR LEWIS, J.: DISSENT S. TAYLOR, A.J.: CONCUR 1. Vice Presiding Judge Arlene Johnson and Judges Lumpkin and Lewis were present for oral argument. Presiding Judge Charles Johnson and Vice Chief Justice Steven W. Taylor, of the Oklahoma Supreme Court, listened to the audio tape of the oral argument as the three judges present for oral argument could not unanimously agree upon the outcome. Due to the retirement of the Honorable Charles Chapel from the Court effective February 28, 2010, Justice Taylor was appointed to participate in this decision.
LEWIS, JUDGE, DISSENTS:
2010 OK CR 23 CARLOS CUESTA-RODRIGUEZ, Appellant -vs- STATE OF OKLAHOMA, Appellee
A. JOHNSON, VICE PRESIDING JUDGE: ¶1 Carlos Cuesta-Rodriguez was tried in the District Court of Oklahoma County, Case No. CF-2003-3216, and was found guilty of First Degree Murder in violation of 21 O.S.2001,
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§ 701.7. The jury imposed the death penalty after finding that the murder was especially heinous, atrocious, or cruel and that CuestaRodriguez presented a continuing threat to society. See 21 O.S.2001, § 701.12(4) and (7). The Honorable Virgil C. Black, District Judge, who presided at trial, sentenced him accordingly. From this Judgment and Sentence, he appeals raising twenty-one claims of error. We find none of these claims merit relief and affirm the judgment and sentence. FACTS ¶2 Olimpia Fisher, the victim in this case, and her adult daughter Katya Chacon lived with Cuesta-Rodriguez in a home that Fisher and Cuesta-Rodriguez had purchased together. In the year after the couple purchased the home, their relationship had become strained over Fisher’s long working hours as a moving company packer and Cuesta-Rodriguez’s fears that she was cheating on him. Cuesta-Rodriguez would question Fisher and Chacon whenever they left the home about where they were going and what they would be doing. Eventually, the relationship deteriorated to the point that Cuesta-Rodriguez wanted Fisher to move out and Fisher wanted Cuesta-Rodriguez to move out. ¶3 On May 20, 2003, Fisher went to the Santa Fe Station of the Oklahoma City Police Department to make a complaint of domestic abuse. Officer Jeffrey Hauck observed bruising on her right upper arm and stomach. When Fisher found out that Officer Hauck was going to take photographs of the bruising and that CuestaRodriguez would be arrested, she ran out of the station. ¶4 On Friday May 31, 2003, Cuesta-Rodriguez tried calling Fisher on her cell phone. She answered and told him she was at work. Cuesta-Rodriguez had gone by her place of work, however, and knew she was not there. Believing she was cheating on him, he went home, drank some tequila, and went to bed. ¶5 Katya Chacon came home to a dark house at approximately 10:00 p.m. She saw an empty bottle of tequila and a note next to it. The note, written on the back of an envelope, said “F—you bitches and puntas, goodbye” (Tr. Vol.2, 381). She thought she was alone in the house, but when she heard Cuesta-Rodriguez cough in the other room, she tried to telephone her mother. Unable to contact Fisher by telephone, Katya left the house and joined her as she was 2326
getting off work. They ate a late meal at a McDonald’s restaurant, and went home. They initially planned to pack and leave, but decided to remain in the house overnight. Katya slept in her own bedroom and Fisher slept in a third bedroom. ¶6 Around 4:30 a.m., Katya woke up and heard Fisher and Cuesta-Rodriguez arguing. Katya went into the bedroom where the two were fighting and persuaded Fisher to come to Katya’s bedroom in the hope that Cuesta-Rodriguez would leave them alone. Cuesta-Rodriguez followed the women into Katya’s bedroom while continuing to argue loudly with Fisher. Fisher picked up a telephone, but Cuesta-Rodriguez snatched it out of her hand and threw it away. At the same time, he pulled out a double-barreled .45 caliber pistol loaded with two .410 shotgun shells and blasted Fisher in the right eye.1 With her mother shot, Katya retrieved a baseball bat from under the bed and tried to hit CuestaRodriguez in the hand. Cuesta-Rodriguez grabbed the bat as Katya swung it and threw it to the floor.2 Katya ran from the house and was able to call 911 from a neighbor’s residence. According to Cuesta-Rodriguez’s statement to police, Fisher was still alive and conscious after he shot her so he took her to his bedroom where, despite having an eye blown out, Fisher continued to fight and struggle. ¶7 The first police officers arrived on the scene at approximately 4:41 a.m., within two minutes of being dispatched by 911. While one officer took information from Katya near the neighbor’s house from where she had called 911, other officers approaching Cuesta-Rodriguez’s and Fisher’s house could hear Fisher screaming and banging on a bedroom window as if she was trying to escape. The windows and doors to the house were covered with burglar bars that not only prevented her escape, but also prevented entry by police. The officers’ first attempt at entry by kicking in the front door failed. While attempting to get through the front door, officers heard a gunshot and Fisher’s screams stopped. ¶8 Certain that Fisher was no longer alive, and certain that Cuesta-Rodriguez was armed, police summoned their tactical team. In the meantime, a police hostage negotiator attempted to make telephone contact with CuestaRodriguez and used a loudspeaker in an attempt to convince him to come out. Eventually, the tactical team forced their way through the front door burglar bars with some difficulty
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using a specialized hydraulic tool called a jamram. Cuesta-Rodriguez was arrested and taken to the police station. He gave statements to detectives that day and the next day. In both interviews he admitted shooting Fisher, although he claimed the first shot was accidental. Photographs of Fisher’s face taken at the scene, and introduced as trial exhibits, showed severe injuries centered on her eyes.3 ¶9 Other facts will be discussed as necessary with Cuesta-Rodriguez’s individual claims of error. DISCUSSION 1. Jury Instruction: Voluntary Intoxication ¶10 Cuesta-Rodriguez claims that his constitutional rights to due process and to present a defense were denied by the trial court’s refusal to issue a jury instruction on the defense of voluntary intoxication. ¶11 This Court reviews a trial court’s decision on whether to instruct a jury on the defense of voluntary intoxication for an abuse of discretion. Fitzgerald v. State, 1998 OK CR 68, ¶ 43, 972 P.2d 1157, 1174. Before a voluntary intoxication instruction is given, the evidence must be sufficient to establish a prima facie case that the defendant was intoxicated to the point he was unable to form deliberate intent to kill. Malone v. State, 2007 OK CR 34, ¶ 22, n.48, 168 P.3d 185, 197, n.48. Where the trial court finds insufficient evidence has been introduced to show that the defendant was so intoxicated that his mental powers were overcome and he was unable to form criminal intent, the court may either reject the instruction or instruct the jury that intoxication was not a defense to the crime. Fitzgerald, 1998 OK CR 68, ¶ 43, 972 P.2d at 1174; see also Miller v. State, 1977 OK CR 189, ¶ 18, 567 P.2d 105, 109 (holding that for voluntary intoxication to be defense to first-degree murder, defendant must be so intoxicated as to be incapable of forming any criminal intent). ¶12 The evidence in this case showed that Cuesta-Rodriguez did consume some tequila several hours before the murder. Under questioning by police, for example, Cuesta-Rodriguez said that he consumed two or three drinks of tequila, but denied that he consumed enough to make him drunk.4 Katya Chacon described Cuesta-Rodriguez as “stupid drunk” on the night of the murder, but also testified that he Vol. 81 — No. 28 — 10/16/2010
was steady on his feet and talking clearly. Detective Dupy testified that Cuesta-Rodriguez smelled of alcohol at 9:15 a.m., four hours after the shooting, but stated in his report that Cuesta-Rodriguez appeared only slightly intoxicated. This evidence may certainly support an inference that Cuesta-Rodriguez was intoxicated, but it does not rise to the level of making a prima facie showing that CuestaRodriguez was so intoxicated that he was incapable of forming criminal intent. See Charm v. State, 1996 OK CR 40, ¶ 13, 924 P.2d 754, 761 (finding that where evidence concerning defendant’s level of intoxication was conflicting, there was insufficient evidence of impairment to raise reasonable doubt as to defendant’s ability to form requisite criminal intent to commit first-degree murder).5 This conclusion is well supported by the fact that Cuesta-Rodriguez remembered events well enough to give police a detailed account of the shooting and the circumstances surrounding it. See Valdez v. State, 1995 OK CR 18, ¶¶ 56-58, 900 P.2d 363, 379 (explaining that defendant who is able to give detailed, lucid account of circumstances of crime is hard pressed to argue that he was significantly intoxicated at the time of the incident). The trial court did not abuse its discretion by denying Cuesta-Rodriguez’s request for a jury instruction on the defense of voluntary intoxication. 2. Exclusion of Expert Testimony ¶13 Cuesta-Rodriguez claims that the trial court violated his rights to present a defense and to a fair trial by failing to allow psychologist, Dr. James Choca, to testify in his defense during the guilt phase of the trial. According to Cuesta-Rodriguez, Dr. Choca would have testified about the negative effect of combining alcohol and the steroid diprospan on CuestaRodriguez’s mental state; that Cuesta-Rodriguez was suffering from depression at the time of the murder, and would have concluded that the depression created a psychotic belief system in Cuesta-Rodriquez’s mind that resulted in delusions. Cuesta-Rodriguez contends that this testimony was relevant to his voluntary intoxication defense and to the lesser included offense of manslaughter upon which the jury was also instructed. ¶14 We review a trial court’s evidentiary rulings for an abuse of discretion. Jackson v. State, 2006 OK CR 45, ¶ 48, 146 P.3d 1149, 1165. To constitute an abuse of discretion, the trial
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court’s conclusion or judgment must be clearly against the logic and effect of the facts presented. Perryman v. State, 1999 OK CR 39, ¶ 11, 990 P.2d 900, 904. ¶15 In this instance, the trial court judge sustained the State’s objection to Dr. Choca’s first stage testimony about alcohol, diprospan, and depression as part of the voluntary intoxication defense by finding the evidence of alcohol impairment insufficient to raise the voluntary intoxication defense. We agree. We can find no evidence in the record of the first stage proceeding showing that Cuesta-Rodriguez ingested the steroid diprospan.6 On this record, therefore, there simply was no basis for the proposed testimony about the combined effects of diprospan and alcohol as part of a voluntary intoxication defense. Furthermore, we cannot find that the proposed testimony about Cuesta-Rodriguez’s depression was relevant to a voluntary intoxication defense to the first degree murder charge or to the lesser included offense of manslaughter.7 See e.g., Mott v. State, 1951 OK CR 68, 232 P.2d 166, 179 (holding that when defendant claims mental faculties have been destroyed by chronic intoxication, appropriate defense is insanity, not voluntary intoxication). ¶16 Moreover, we are not convinced that Dr. Choca was qualified to testify as to the effects of combining alcohol and the steroid diprospan. Dr. Choca testified during the sentencing phase of the trial. His testimony there reveals that he is a psychologist with a Ph.D. There is nothing in the record showing that Dr. Choca had any specialized knowledge or training in toxicology or medicine that would qualify him as an expert in the field of drug interactions in the human body. ¶17 Given the inadequate factual basis for the voluntary intoxication defense, the lack of evidence that Dr. Choca was even qualified to opine on the subject of drug-alcohol interactions, and the lack of relevance of the testimony to the lesser included offense of heat of passion manslaughter, the trial court did not abuse its discretion by excluding Dr. Choca’s testimony during the guilt phase of the trial. 3. Evidentiary Issues ¶18 Cuesta-Rodriguez contends that the trial court erred when it denied his motion to dismiss the case based on his claims that the Oklahoma City Police Department acted in bad faith by failing to collect and preserve certain 2328
evidence from the crime scene. Specifically, Cuesta-Rodriguez alleges that the police acted in bad faith by not saving empty tequila bottles that were shown in photographs of the scene and not saving the “goodbye note” that Katya Chacon read before she fled the house. According to Cuesta-Rodriguez, the liquor bottles and the note were key pieces of exculpatory evidence that were essential to his defense. ¶19 We review a district court’s denial of a motion to dismiss for an abuse of discretion. Bewley v. State, 1985 OK CR 11, ¶ 9, 695 P.2d 1357, 1359. An abuse of discretion here is “any unreasonable, unconscionable and arbitrary action taken without proper consideration of the facts and law pertaining to the matter submitted.” See Williams v. State, 2008 OK CR 19, ¶ 27, 188 P.3d 208, 217 (quoting Harvey v. State, 1969 OK CR 222, ¶ 9, 458 P.2d 336, 338), cert. denied, 555 U.S. ___, 129 S.Ct. 1529, 173 L. Ed.2d 660 (2009). An abuse of discretion has also been described as “a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented.” Stouffer v. State, 2006 OK CR 46, ¶ 60, 147 P.3d 245, 263 (citation and quotation omitted). ¶20 The State has a duty under the Due Process Clause of the Fourteenth Amendment to preserve evidence that might be expected to play a significant role in the suspect’s defense. California v. Trombetta, 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 102 L.Ed.2d 413 (1984). Such evidence “must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. Neither condition is met in this case. “[U]nless a defendant can show bad faith by the police, destruction of potentially useful evidence does not constitute a due process violation.” Torres v. State, 1998 OK CR 40, ¶ 24, 962 P.2d 3, 13. ¶21 Cuesta-Rodriguez did not explain to the district court, nor does he explain here, how the tequila bottles themselves would have been any more exculpatory than the photographs of the bottles that were presented at trial. The photographs of the two bottles, one of which was a tequila bottle, corroborated Cuesta-Rodriguez’s statement to police that he had two or three shots of tequila the evening before the murder. Any further exculpatory value is not apparent on the face of this record, and likely was not apparent to officers at the scene because, as
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Detective Carson testified, the presence of liquor bottles is commonplace at crime scenes. ¶22 With regard to the note, Katya Chacon testified that she fled the house after she read it, presumably leaving it in Cuesta-Rodriguez’s control. Detective Carson testified that if he had found the note, he would have preserved it because it had obvious inculpatory value. Based on this testimony, it is not clear that police ever took possession of the note despite looking for it. Additionally, while the note’s inculpatory value is obvious, its exculpatory value is not. Cuesta-Rodriguez did not explain to the district court, nor does he explain here, how the note, even if it had been found by police, was exculpatory, or why the paper itself would have been any more exculpatory than the testimony of Katya Chacon who read it. ¶23 Because Cuesta-Rodriguez failed to meet his burden of showing that the note and tequila bottles possessed exculpatory value and because he failed to show that the photographs of the bottles and testimony about the note were not reasonably comparable substitutes for the items themselves, we do not find the district court abused its discretion in denying Cuesta-Rodriguez’s motion to dismiss. 4. Other Crimes Evidence ¶24 Cuesta-Rodriguez claims that he was denied a fair trial by the trial court’s admitting evidence of other crimes. He complains about the testimony of Officer Jeffrey Hauck who told the jury that he observed bruising on Olimpia Fisher when she reported an assault to him on May 20, 2003, eleven days before she was murdered.
¶27 Evidence of previous altercations between spouses is relevant to the issue of intent. Hooker v. State, 1994 OK CR 75, ¶ 25, 887 P.2d 1351, 1359. See also, Duvall v. State, 1991 OK CR 64, ¶ 6, 825 P.2d 621, 626 (“[t]he relevance of testimony showing ill feeling, threats, or similar conduct by one spouse toward another in a marital homicide case has been established by this Court”); Lamb v. State, 1988 OK CR 296, ¶ 10, 767 P.2d 887, 891 (“[e]vidence of previous altercations between an appellant and a deceased is relevant to establish motive, malice, or intent, ‘even though such evidence constitutes evidence of another crime’”)(quoting Villanueva v. State, 1985 OK CR 8, ¶ 7, 695 P.2d 858, 860). Because evidence of Cuesta-Rodriguez’s prior attack on Fisher was relevant to show motive and intent, the trial court did not abuse its discretion in admitting it. 5. Autopsy Result as Testimonial Hearsay ¶28 Cuesta-Rodriguez claims that his Sixth Amendment right to confront the witnesses against him was violated by the admission of testimonial hearsay evidence, specifically information contained in the report from the autopsy on Olimpia Fisher’s body. Dr. Fred Jordan, the medical examiner who performed the autopsy on Fisher had retired by the time of trial and Dr. Jeffrey Gofton, the Chief Medical Examiner, testified in his place. Dr. Gofton testified regarding the examination of the body conducted by Dr. Jordan and gave his own opinions on Fisher’s injuries and cause of death based on Dr. Jordan’s observations as recorded in his autopsy report. Cuesta-Rodriguez contends that because the autopsy report was prepared by Dr. Jordan, not Dr. Gofton, he was denied his constitutional right to confront Dr. Jordan and challenge his findings and conclusions contained in the autopsy report.
¶25 We review a trial court’s evidentiary rulings for an abuse of discretion. Jackson, 2006 OK CR 45, ¶ 48, 146 P.3d at 1165. To constitute an abuse of discretion, the trial court’s conclusion or judgment must be clearly against the logic and effect of the facts presented. Perryman, 1999 OK CR 39, ¶ 11, 990 P.2d at 904.
¶29 A trial court’s ruling admitting or excluding evidence is reviewed for an abuse of discretion. Jackson, 2006 OK CR 45, ¶ 48, 146 P.3d at 1165.
¶26 Title 12 O.S.2001, § 2404(B) governs the admission of evidence of other crimes, wrongs, or bad acts, and specifically prohibits evidence intended to prove a character trait of a person in order to show the person acted in conformity with that trait. Other crimes evidence is permissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.
¶30 In Crawford v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004), the Supreme Court held that the Sixth Amendment confrontation right applies not only to in-court testimony, but also to testimonial hearsay (i.e., out-of-court statements that are testimonial in nature). The Confrontation Clause forbids the admission of testimonial hearsay unless the declarant is unavailable to
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testify and the defendant had a prior opportunity to cross-examine the declarant. Id. at 68, 1374. Testimonial statements are not limited to formal statements made to government officers, but also include pretrial statements that a declarant would reasonably expect to be used prosecutorially. Id. at 51, 1364. A. The Autopsy Report ¶31 Cuesta-Rodriguez’s claim is premised on the assertion that Dr. Jordan’s autopsy report was testimonial hearsay under Crawford. The State argues, on the other hand, that because autopsy reports are prepared in the ordinary course of business by the Medical Examiner’s Office they are non-testimonial because Crawford explicitly stated that business records are non-testimonial by their nature. The State’s position is founded on the idea that 63 O.S.Supp. 2004, § 949(A)(1)(a) and 63 O.S.2001, § 938(A) require the medical examiner to conduct investigations and prepare autopsy reports under a number of statutorily enumerated circumstances, not just circumstances in which the report might be used in a criminal prosecution. Therefore, according to the State, autopsy reports are admissible under the business record exception to the hearsay rule at 12 O.S.2001, § 2803(6). ¶32 In McCarty v. State, 1998 OK CR 61, ¶¶ 8589, 977 P.2d 1116, 1136-37, conviction reversed on other grounds, 2005 OK CR 10, 114 P.3d 1089, this Court accepted the business record rationale and held that a Chief Medical Examiner could properly testify to the autopsy findings of another medical examiner, even absent a finding of unavailability, under the business record exception to the hearsay rule codified at 12 O.S.1991, § 2803(6). McCarty was decided, however, before the United States Supreme Court’s 2004 decision in Crawford and its more recent decision in Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), which was decided while this appeal was pending. ¶33 In Melendez-Diaz, the Supreme Court held that reports prepared by analysts at a state crime laboratory declaring that a substance was cocaine were testimonial statements, and that the analysts who prepared the reports were witnesses for purposes of the Sixth Amendment. Id. at 2532. Thus, the Court concluded that absent a showing that the analysts were unavailable to testify and that the defendant had a prior opportunity to cross-examine them, the defendant was entitled to confront 2330
the analysts at trial. Id. In Melendez-Diaz, the Supreme Court rejected the contention that public or business records are categorically nontestimonial. “Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial.” Id. at 2538 (internal citation omitted). With specific reference to the laboratory reports at issue in that case, the Court added: Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here — prepared specifically for use at petitioner’s trial — were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment. Id. at 2539-40. In the course of rejecting the asserted Confrontation Clause exception for business and public records, the Court wrote that “whatever the status of coroner’s reports at common law in England, they were not accorded any special status in American practice.” Id. at 2538. ¶34 In Oklahoma, a medical examiner is required by law to investigate deaths under a variety of circumstances including violent deaths and deaths under suspicious circumstances. 63 O.S.2001, § 938(A). The medical examiner must promptly turn over to the district attorney copies of all records relating to a death for which the medical examiner believes further investigation is advisable. 63 O.S.Supp.2004, § 949(A)(2). On completion of his investigation, a medical examiner must send copies of his reports to investigating agencies with an official interest in the case. 63 O.S.2001, § 942. Further, “[a]ny district attorney or other law enforcement official may, upon request, obtain copies of such records or other information deemed necessary to the performance of such district attorney’s or other law enforcement official’s official duties.” 63 O.S.2001, § 938(A)(2). Given this statutory framework, it is obvious that a medical examiner’s words recorded in an autopsy report involving a violent or suspicious death could
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constitute statements that the medical examiner should reasonably expect to be used in a criminal prosecution and therefore under the Crawford and Melendez-Diaz framework would be testimonial for Sixth Amendment confrontation purposes. ¶35 In this case, the circumstances surrounding Fisher’s death warranted the suspicion that her death was a criminal homicide. Under these circumstances, therefore, it is reasonable to assume that Dr. Jordan understood that the report containing his findings and opinions would be used in a criminal prosecution. Dr. Jordan’s autopsy report was a testimonial statement, and Dr. Jordan was a witness within the meaning of the Confrontation Clause.8 B. Dr. Gofton’s Testimony ¶36 Prior to Dr. Gofton testifying, CuestaRodriguez objected on the grounds that the autopsy report was prepared by Dr. Jordan who would not be subject to cross-examination. After hearing argument from counsel, the district court judge overruled the objection without explanation other than the following statement: For the purpose of the record, I’m going to admit the testimony, allow the testimony, and it’s my request to the Court of Criminal Appeals that, if they get this case, that they clarify by published opinion the proper procedure, if they agree or disagree as to what occurred. (Tr. Vol. 3, 560). ¶37 After Dr. Gofton introduced himself to the jury and briefly summarized his education and experience, he was asked by the prosecutor if he had reviewed the records of the autopsy performed by Dr. Jordan. Over defense counsel’s objections the State introduced three diagrams from Dr. Jordan’s report that depicted the locations and types of injuries he observed on Fisher’s body. Dr. Gofton explained to the jury the nature of the injuries noted on the diagrams and recited other observations mentioned in Dr. Jordan’s report. He concluded that a firearm injury to the head was the cause of death and opined that among several possibilities, the method of death was most likely choking on blood that had entered the airway from bone fracturing in the nasal area. According to Dr. Gofton, Fisher would have lost consciousness in a matter of seconds to minutes and could have taken as long as eight Vol. 81 — No. 28 — 10/16/2010
minutes to aspirate on the blood. Gofton also opined that of the two gunshot wounds to Fisher’s head, the gunshot to the right side of the face and eye was the less severe wound, probably occurred first, and was non-fatal. He also offered the opinion that the second gunshot, the one to the left side of the face and eye, was the likely cause of death because it fractured the skull and nasal bone causing brain injuries and bleeding into the airway. ¶38 Although we agree with Cuesta-Rodriguez that Dr. Jordan’s autopsy report was testimonial, this position does not resolve the issue because the autopsy report was not introduced in evidence. Instead, Dr. Gofton was called to testify to his own opinions regarding Fisher’s injuries and death, and the contents of the autopsy report were used by Dr. Gofton to show the basis for his opinions. ¶39 Although neither the prosecutor nor the trial court expressly cited the evidence rules at 12 O.S.Supp.2002, §§ 2703 and 2705, it is apparent from the trial record that these rules were the basis upon which Dr. Gofton’s testimony was offered and admitted. Under § 2703, an expert witness may base an opinion on facts or data that are not admissible in evidence, provided that the inadmissible facts or data are of a type reasonably relied on by experts in the particular field. Under this rule, an expert may base an opinion solely on inadmissible hearsay. Lewis v. State, 1998 OK CR 24, ¶ 19, 970 P.2d 1158, 1166-67. Under § 2705, an expert witness may generally disclose on direct examination the facts or data underlying his opinion. Id. Under certain limited circumstances, an expert witness may disclose the facts and data underlying his opinion even if they are inadmissible as evidence. 12 O.S.Supp.2002, § 2705(d); Lewis, 1998 OK CR 24, ¶ 19, 970 P.2d at 1166-67. Nevertheless, evidence rules cannot trump the Sixth Amendment’s right of confrontation. See Crawford, 541 U.S. at 61, 124 S.Ct. at 1370 (“[W]e do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence”). Confrontation “is one means of assuring accurate forensic analysis” and “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Melendez-Diaz, 129 S.Ct. at 2536-37. Consequently, while Dr. Gofton’s opinions were admissible because he was available for crossexamination about those opinions, CuestaRodriguez was denied the opportunity to confront Dr. Jordan in order to test his competence
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and the accuracy of his findings contained in the hand-annotated diagrams and the autopsy report whose contents Dr. Gofton disclosed to the jury. The trial court erred by admitting the autopsy diagrams drawn by Dr. Jordan and Dr. Gofton’s testimony about what Dr. Jordan said in his autopsy report. Cf. Marshall v. State, 2010 OK CR 8, ¶¶ 28-31, 232 P.3d 467, 475-76 (finding confrontation error where DNA expert testified to contents of DNA report prepared by non-testifying expert who wrote report and defendant had no prior opportunity to crossexamine author of report). C. Harmless Error ¶40 Because there was constitutional error, we must reverse Cuesta-Rodriguez’s conviction unless we are satisfied beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Marshall, 2010 OK CR 8, ¶ 31, 232 P.3d 467, 475-76; see also Mayes v. State, 1994 OK CR 44, ¶ 67, 887 P.2d 1288, 1307 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). That is, a violation of a defendant’s confrontation right does not require automatic reversal where the weight of the rest of the evidence is overwhelming and the prejudicial effect of the inadmissible evidence is insignificant. Id. In this instance, Dr. Gofton’s opinions that the first gunshot to Fisher’s face was not fatal, that she died by choking on blood caused by the second gunshot wound, and that Fisher did not die immediately, but may have lingered for up to eight minutes did not violate CuestaRodriguez’s confrontation right. The confrontation error was Dr. Gofton’s disclosure of the underlying information contained in Dr. Jordan’s testimonial autopsy report. We conclude, however, that the error was harmless. ¶41 The out-of-court testimonial statements disclosed by Dr. Gofton consisted of his recitation of Dr. Jordan’s conclusions that the manner of Fisher’s death was homicide and the cause of death was a firearm wound to the head. Dr. Gofton also recited Dr. Jordan’s descriptions of the injuries to Fisher’s head and face to include Jordan’s observations that: (1) Fisher’s eye sockets had been shattered; (2) her nasal bone and skull had been fractured by the second gunshot; (3) she had substantial amounts of blood in her lungs and airway; and (4) that her brain had “subarachnoid bleeding,” “contusive hemorrhages,” but no swelling. From these observations, Dr. Gofton testified that in his opinion the gunshot to the 2332
right eye occurred first, but caused a non-fatal injury. In Gofton’s opinion, the second gunshot went to the left eye and produced the fatal injury. Dr. Gofton opined on several ways in which the gunshot to the left eye might have caused Fisher to die, but concluded the most likely cause was bleeding through the shattered nasal bone and skull that entered the airway and lungs and caused her to choke to death on blood. In Gofton’s opinion, when choking to death in this manner a person could remain conscious for a period of time of seconds to minutes, and in this instance, Fisher might have remained conscious for up to eight minutes. ¶42 With regard to the jury’s guilt or innocence determination, Gofton’s testimony was harmless because even if Dr. Gofton had not testified, the jury still had ample evidence to conclude on its own that Fisher’s death was a homicide (i.e., the killing of one human being by another)9 and that the cause of death was a firearm injury to her face and head. This evidence included (1) Katya Chacon’s testimony that she saw Cuesta-Rodriguez shoot Fisher in the face; (2) Cuesta-Rodriguez’s admissions to police that he shot Fisher; (3) testimony of officers that they heard a woman’s screams from inside the house but then silence after a gunshot; and (4) photographs of Olimpia Fisher’s face taken at the crime scene showing massive injuries to her head and face with the injuries centered on the eyes. ¶43 Similarly, with regard to sentencing, the error was also harmless. The bulk of Gofton’s testimony concerning the details of Fisher’s death involved a recitation of Dr. Jordan’s autopsy observations and Gofton’s own opinions based on those observations that Fisher was able to remain conscious some seconds or minutes after the second, ultimately fatal, gunshot. This was potentially relevant to proving the heinous, atrocious, or cruel aggravator in the sentencing phase by showing that Fisher consciously suffered before she died.10 ¶44 In determining whether a Confrontation Clause violation is harmless error, we must consider the importance of the witness’s testimony to the State’s case, whether the testimony was cumulative of other evidence, the presence or absence of evidence corroborating or contradicting the out-of-court statements on material points, and the overall strength of the prosecution’s case. Littlejohn v. State, 2004 OK CR 6, ¶ 28, 85 P.3d 287, 297-98 (citing Delaware v. Van
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Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)). ¶45 Dr. Gofton’s testimony about Fisher’s external injuries, as described in Dr. Jordan’s report and accompanying hand-drawn diagrams were largely cumulative of the same injuries depicted in photographs of Fisher’s face and head taken at the murder scene that were properly entered into evidence with the testimony of Detective John Fiely. These photographs, more detailed and graphic than Dr. Jordan’s diagrams, clearly depicted Fisher’s shattered eye sockets, skull, and nasal bones. Additionally, Dr. Jordan’s annotated diagram showing bruises elsewhere on Fisher’s body were cumulative to some extent to Officer Jeffrey Hauck’s testimony in which he told jurors that he saw bruises on Fisher’s upper right arm and stomach when she initiated a domestic abuse complaint approximately two weeks before her death. Moreover, Dr. Jordan’s observation of bleeding and bruising in the brain, but no swelling, was not of any significance to the State’s case. ¶46 Furthermore, even if Dr. Gofton’s testimony is discounted in its entirety, there was still more than sufficient evidence for the jury to conclude that Fisher consciously suffered before her death. As discussed at greater length below, the testimony of police officers and Katya Chacon, as well as Cuesta-Rodriguez’s statements to police showed that when CuestaRodriguez fired the first blast from his pistol into Fisher’s right eye, she was not rendered unconscious. Instead, this evidence showed that she continued struggling for at least seven minutes until Cuesta-Rodriguez delivered the fatal shot to her left eye. During this interval, with her right eye blown out, the jury could have reasonably concluded that Fisher consciously experienced great physical and mental suffering. Consequently, even if Dr. Gofton’s testimony about how long Fisher may have remained conscious after the second gunshot is eliminated from consideration, there was enough remaining evidence to show conscious suffering in the interval between the first and second shots. ¶47 In conclusion, Dr. Jordan’s autopsy report was a testimonial statement. Dr. Jordan was therefore a witness within the meaning of the Confrontation Clause as construed in Crawford and Melendez-Diaz. Under the circumstances of this case, therefore, the disclosure of the contents of Dr. Jordan’s autopsy report by Dr. GofVol. 81 — No. 28 — 10/16/2010
ton violated Cuesta-Rodriguez’s right of confrontation. We are satisfied beyond a reasonable doubt, however, that the disclosure of the information taken from the autopsy report did not contribute to Cuesta-Rodriguez’s conviction or punishment.11 6. Discovery ¶48 Cuesta-Rodriguez claims the State failed to comply with the Oklahoma Criminal Discovery Code at 22 O.S.Supp.2002, § 2002, by not providing notice that Detective Steve Carson would be a witness at trial and by not providing a summary of his anticipated testimony. Specifically, Cuesta-Rodriguez claims that Detective Carson was not listed in the State’s Summary of Witness Testimony that was filed on October 21, 2004. This claim is clearly refuted by the record. Page five of the State’s Summary of Witness Testimony lists Detective Carson as a witness and provides a summary of his anticipated testimony as follows: Steve Carson – OCPD, 701 Colcord, Oklahoma City, Oklahoma 73102 Homicide Detective assigned to case. Will testify consistently with reports previously provided and preliminary hearing testimony. Will sponsor consent to search 807 S.W. 47th obtained from Katya Chacon. Will sponsor video taped confession of defendant. Worked the crime scene at 807 S.W. 47th. (O.R. 547). There is no merit to this claim. 7. Sufficiency of Evidence: First Degree Murder ¶49 Cuesta-Rodriguez claims that there was insufficient evidence to support his conviction for first degree murder. In particular CuestaRodriguez contends that the evidence of his intent to murder Fisher was insufficient to overcome evidence that he was intoxicated and therefore unable to form the specific intent to kill (i.e., malice aforethought). When considering a sufficiency of the evidence claim, we review the evidence 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.
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Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 571 (1979)). ¶50 Katya Chacon saw Cuesta-Rodriguez shoot Fisher on the right side of her face and Cuesta-Rodriguez admitted to police that he shot Fisher. Cuesta-Rodriguez was the only person in the house with Fisher when police heard her screams stop with a second gunshot. Testimony from Gordon Robertson, a firearms examiner for the Oklahoma State Bureau of Investigation, showed that the handgun Cuesta-Rodriguez used was unusual in that it required several sequential steps to be fired a second time. Additionally, after he shot Fisher the second time, Cuesta-Rodriguez remained barricaded in the house, even though there were police and emergency medical personnel just outside that could have provided assistance. ¶51 When this evidence is considered in the light most favorable to the State, it was sufficient to permit a rational trier of fact to conclude that Cuesta-Rodriguez intended to kill Fisher with either the first or second gunshots despite some evidence showing that he was intoxicated, but not so intoxicated that his mental powers were overcome rendering him incapable of forming criminal intent. 8. Jury Selection: Manner and Extent of Voir Dire ¶52 Cuesta-Rodriguez claims that the jury selection method used by the trial judge did not provide him with an adequate opportunity to meaningfully question potential jurors on their ability to follow the law in determining a sentence for first degree murder. Cuesta-Rodriguez complains specifically that the trial court judge did not permit individual questioning of jurors but allowed only en masse questioning of the group with yes-no questions. According to Cuesta-Rodriguez this was a superficial mode of examining jurors that provided little information about individual jurors and thereby denied him the opportunity to exercise his peremptory challenges intelligently. CuestaRodriguez also complains that placing thirty potential jurors in the courtroom for voir dire examination, created uncomfortable conditions for the jurors and an atmosphere not conducive to discovering bias, interest, or partiality. ¶53 The manner and extent of voir dire is within the discretion of the trial court and the trial court’s voir dire rulings will not be disturbed on appeal unless the court’s decision 2334
was clearly erroneous or manifestly unreasonable. Hogan v. State, 2006 OK CR 19, ¶ 13, 139 P.3d 907, 917, reh’g granted, 2006 OK CR 27. There is no abuse of discretion if the voir dire questioning is broad enough to afford the defendant a jury free of outside influence, bias or personal interest. Id. ¶54 Contrary to Cuesta-Rodriguez’s claim, the transcript of the voir dire proceeding shows that while there were twenty-eight potential jurors seated in the courtroom, defense counsel questioned many of them individually and elicited more than yes or no answers from them. Additionally, Cuesta-Rodriguez does not point to any instance in which he sought to ask a question of a particular juror but was prevented from doing so by the trial judge’s voir dire method. Furthermore, Cuesta-Rodriguez does not allege that his jury was not impartial, nor does he point to any evidence the court’s method of selection of a jury hindered his voir dire questioning or his intelligent exercise of peremptory challenges. ¶55 The trial court’s method of conducting voir dire of a large group was neither clearly erroneous nor manifestly unreasonable because Cuesta-Rodriguez was able to question individual venire members broadly. The trial court did not abuse its discretion. 9. Jury Selection: Individual Questioning and Questionnaires ¶56 Cuesta-Rodriguez claims the trial court judge erroneously denied his requests for individual sequestered voir dire of potential jurors and for use of jury questionnaires. CuestaRodriguez argues that his inability to use questionnaires and conduct individual sequestered voir dire denied him the opportunity to question potential jurors individually and thereby deprived him of the ability to intelligently exercise his peremptory challenges to strike biased jurors. ¶57 Individual voir dire may be held at the discretion of the trial court. McCarty v. State, 1995 OK CR 48, ¶ 5, 904 P.2d 110, 115. Individual voir dire is appropriate where the record shows jurors were not candid in their responses about the death penalty, or that responses were tailored to avoid jury service. Stouffer v. State, 2006 OK CR 46, ¶ 12, 147 P.3d 245, 257. Cuesta-Rodriguez does not allege that jurors were not candid in their responses or that any juror provided responses tailored to avoid jury
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service. He argues only that, had he been able to question sequestered jurors individually, he could have probed more deeply in trying to find juror bias. In the absence of some evidence on the record that jurors were not candid in their responses or were attempting to avoid jury service, individual sequestered voir dire was not warranted. ¶58 Because of the difficulty in evaluating juror candor from a transcript, this Court places great weight on the trial court’s opinion of the jurors. Childress v. State, 2000 OK CR 10, ¶ 41, 1 P.3d 1006, 1015. Additionally, while this Court has encouraged trial courts to use jury questionnaires in capital cases, we have never held that their use is mandatory in every instance. Jones v. State, 2006 OK CR 17, ¶ 16, 134 P.3d 150, 156. Thus, the use of questionnaires, like individual voir dire, is also discretionary with the trial court. See Jones, 2006 OK CR 17, ¶ 3, 134 P.3d at 160 (A. Johnson, J. concurring); Instruction Number 1-10, OUJI-CR(2d) (Supp.2009)(Notes on Use)(“[i]n its discretion, the trial court may direct use of this juror questionnaire . . . as a supplement to, rather than a substitute for voir dire”). In this instance, the trial court, saw the prospective jurors, heard their responses firsthand, and found no need to conduct individual voir dire. Furthermore, Cuesta-Rodriguez does not identify any specific question he would have asked on a questionnaire that he did not ask, or could not have asked, during oral voir dire, to obtain information with which to raise a challenge for cause or to intelligently exercise a peremptory challenge. The trial court did not abuse its discretion by not incorporating juror questionnaires into the voir dire process and Cuesta-Rodriguez’s constitutional right to due process was not harmed. 10. Jury Instructions A. Evidence Spoliation ¶59 Cuesta-Rodriguez claims his constitutional right to a fair trial was violated when the trial court refused to give his proffered jury instruction concerning the State’s alleged failure to collect and preserve certain evidence. He argues that the trial court should have instructed jurors that they could draw a negative inference from the failure of police to collect and preserve liquor bottles and a note written by Cuesta-Rodriguez from the crime scene.12 We review a trial court’s rulings on jury instrucVol. 81 — No. 28 — 10/16/2010
tions for an abuse of discretion. Eizember v. State, 2007 OK CR 29, ¶ 111, 164 P.3d 208, 236. ¶60 While the actual liquor bottles were not collected and preserved as evidence, the fact of the presence of liquor bottles at the scene was established by photographs of the bottles taken by the police. It is not obvious to us why the bottles themselves would have been any more exculpatory than the photographs of the bottles that were entered into evidence. The handwritten note was last seen in Cuesta-Rodriguez’s possession when Katya Chacon fled the house after reading it. Detective Carson testified that officers did not find the note when they searched the house and stated further that if they had, they certainly would have collected it and preserved it for trial. Despite this, the substance of the note was disclosed to the jury when Katya Chacon testified as to what it said. Again, it is not obvious to us why the note itself would have been any more exculpatory than Katya Chacon’s testimony about what it said. Under these circumstances, we see no evidence that the failure of police to collect liquor bottles and a note from the scene constituted bad faith conduct. Nor are we convinced that Cuesta-Rodriguez was prejudiced in some way by the evidence of these items that was collected and introduced. ¶61 In the absence of a showing of bad faith by police, therefore, an instruction allowing the jury to draw a negative inference from the destruction of evidence was not appropriate. See Torres v. State, 1998 OK CR 40, ¶ 24, 962 P2d 3, 13 (holding that unless defendant can show bad faith by police, destruction of potentially useful evidence does not constitute due process violation and instruction allowing jury to draw negative inference from destruction of evidence is not warranted). The trial court did not abuse its discretion by denying CuestaRodriguez’s request for a negative inference instruction. B. Reasonable Doubt ¶62 Cuesta-Rodriguez also contends that his rights to due process were violated when the trial court refused his proffered jury instruction on reasonable doubt. We have consistently and repeatedly held that reasonable doubt is selfexplanatory, and that rather than clarifying the meaning of the phrase, definitions of reasonable doubt tend to confuse the jury.13 We decline to revisit this issue.
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11. Prosecutor’s Decision to Seek Death Penalty ¶63 Cuesta-Rodriguez claims that the prosecutor’s decision to seek the death penalty was arbitrary and therefore his death sentence violates the Eighth Amendment prohibition against cruel and unusual punishment. CuestaRodriguez argues that the arbitrariness of the prosecutor’s decision is shown by the fact Oklahoma County prosecutors chose not to seek the death penalty in two unrelated firstdegree murder cases tried in 2001 and 2007. According to Cuesta-Rodriguez, the two instances he cites show that Oklahoma applies the death penalty in a “freakish and wanton manner” that does not comport with the constitutional mandate of consistent even handed application set out in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). ¶64 “The decision regarding which criminal charge to bring lies within the wide parameters of prosecutorial discretion.” Childress, 2000 OK CR 10, ¶ 18, 1 P.3d at 1011. See also Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978))(holding that as long as prosecutor has probable cause to believe that accused committed an offense defined by statute, decision whether or not to prosecute, and what charge to file “generally rests entirely in his discretion”). Prosecutorial discretion is not unlimited, however, but is cabined only by the constitutional requirement that its exercise not be based on some arbitrary classification such as race or religion. See Bordenkircher, 434 U.S. at 364, 98 S.Ct. at 668-69 (“‘[t]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation’ so long as ‘the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification”) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962)). To prevail on a claim of an abuse of prosecutorial discretion, therefore, it is the defendant’s burden to show that his prosecution is based on some impermissible discriminatory ground. Childress, 2000 OK CR 10, ¶ 18, 1 P.3d at 1011. ¶65 In this instance, even assuming that Cuesta-Rodriguez’s case was identical to the cases of the two defendants he cites, he fails to allege that the prosecutor’s decision to seek the death penalty in his case, was motivated by some impermissible classification such as race or religion.14 Absent such a showing, and considering the facts alleged by Cuesta-Rodriguez, 2336
we can conclude only that the prosecutor chose to exercise some selectivity when electing to seek the death penalty in Cuesta-Rodriguez’s case. We cannot conclude that his exercise of discretion rose to the level of a constitutional violation. 12. Victim Impact Testimony A. Focus on Emotional and Psychological Impact ¶66 Cuesta-Rodriguez claims the trial court erred in admitting certain victim impact evidence because the evidence was more prejudicial than probative. Cuesta-Rodriguez contends that the victim-impact testimony of Olimpia Fisher’s daughters Katya and Cinthia Chacon focused exclusively on the emotional and psychological impact of the loss of their mother and was therefore too emotionally charged to be admissible. ¶67 Katya testified that she had nightmares about Cuesta-Rodriguez “abusing, hitting, stabbing, shooting, torturing her, and attempting to kill her mother again in [her] presence showing no guilt or remorse” (Tr. Vol. 5, 967). She also described what her mother looked like after the shooting, which was cumulative to her testimony in the first stage. Katya testified further about the difficulty of having to tell her children, who never knew Fisher, that their grandmother was gone. Cinthia’s testimony included information about the impact the crime had on her sister Katya as well as her own infant daughter. Both Katya and Cinthia testified about the difficulty of facing holidays, pregnancy and motherhood without their mother. ¶68 Evidence about the victim, the physical effects of the crime on the victim, the circumstances surrounding the crime, the manner in which the crime was perpetrated, and about the financial, emotional, psychological, and physical impact of the murder on the victim’s family is admissible. 22 O.S.2001, § 984; 21 O.S.2001, § 701.10(C). The testimony in this case clearly related to the physical effects of the crime, the manner in which it was carried out, and the emotional and psychological impact of Fisher’s murder on her family. It was properly admitted as victim impact evidence. ¶69 Nevertheless, Cuesta-Rodriguez argues that his case is like Cargle v. State, 1995 OK CR 77, 909 P.2d 806, in which this Court found
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error in the admission of certain victim impact evidence that on its face met the statutory requirements for admissibility but was otherwise unfairly prejudicial when compared to its probative value. In Cargle, the victim impact evidence included extended testimony by the sister of one of the victims that recounted detailed anecdotes from the victim’s childhood and college years through his death at age thirty-three. In addition to her own remembrances of the victim, the sister’s testimony included second-hand reminiscences of friends of the victim. Acknowledging that information about a victim is permissible as victim impact evidence under 22 O.S. § 984, the Cargle court nevertheless explained that even victim impact evidence is subject to the balancing requirement of 12 O.S. § 2403, which mandates that evidence be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Cargle, 1995 OK CR 77, ¶¶ 8081, 909 P.2d at 829-30. To ensure that victim impact evidence meets this test, the Cargle court explained that testimony about the personal characteristics of a victim should constitute a “quick glimpse” of the victim and the use of the evidence should be limited to showing how the victim’s death is affecting or might affect the victim’s survivors. Id. ¶ 75, 828. ¶70 Unlike the wide-ranging victim impact evidence condemned in Cargle, the testimony in this case, as Cuesta-Rodriguez concedes, “focused exclusively on the emotional and psychological impact of the crime” (Aplt’s Brief at 62). Because the evidence was concise and narrowly focused on these permissible subjects, it was not unfairly prejudicial. The trial court did not abuse its discretion by allowing this victim impact testimony into evidence. B. Victim Impact Evidence as Superaggravator ¶71 Cuesta-Rodriguez claims that victim impact evidence is not relevant to proving either the aggravating or mitigating factors necessary to perform the narrowing function for application of the death penalty. According to Cuesta-Rodriguez, victim impact evidence acts instead as a superaggravator and skews the sentencing proceeding in violation of the Eighth Amendment. We have rejected this argument in the past and are not persuaded to revisit the issue here. See Hogan v. State, 2006 OK CR 27, ¶ 71, 139 P.3d 907, 932; Thacker v. State, 2005 OK CR 18, ¶ 16, 120 P.3d 1193, 1196; Harris v. State, 2004 OK CR 1, ¶ 58, 84 P.3d 731, Vol. 81 — No. 28 — 10/16/2010
752; Murphy v. State, 2002 OK CR 24, ¶¶ 45-47, 47 P.3d 876, 886. C. Victim Impact Evidence Jury Instruction ¶72 Cuesta-Rodriguez claims that the jury was improperly instructed as to the scope of victim impact evidence. Specifically, CuestaRodriguez complains that Instruction No. 9-45, OUJI-CR(2d), which the trial court gave as Instruction No. 11 of the second stage jury instructions, contained language permitting jurors to consider that the victim was an “individual whose death may represent a unique loss to society and the family.” Cuesta-Rodriguez argues that the phrase “unique loss to society” improperly allowed jurors to consider the impact of the loss of the victim on society at large rather than simply the impact on the immediate family. ¶73 Cuesta-Rodriguez did not object to this language at trial, and in fact, included it in his own proposed jury instruction. For that reason, this claim is waived as invited error. See Ellis v. State, 1992 OK CR 45, ¶ 28, 867 P.2d 1289, 1299 (holding that error invited by defense counsel cannot serve as basis for reversal because defendant cannot invite error and then seek to profit from it); Pierce v. State, 1990 OK CR 7, ¶ 10, 786 P.2d 1255, 1259 (“[w]e have often recognized the well established principal [sic] that a defendant may not complain of error which he has invited, and that reversal cannot be predicated on such error”). ¶74 Nevertheless, the claim also fails on the merits. While Cuesta-Rodriguez is correct that 22 O.S.2001, § 984 does not specifically authorize victim impact evidence concerning the victim’s “unique loss to society,” he is incorrect in his assertion that the phrase exceeds the scope of victim impact testimony permitted by case law. Specifically, in Cargle, 1995 OK CR 77, ¶ 69, 909 P.2d at 826, this Court held that “victim impact evidence is permissible because ‘the State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family’”(emphasis added)(quoting Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608, 115 L.Ed.2d 720 (1991)). The trial court did not err by using Instruction No. 9-45, OUJICR(2d)(Supp.2000), and its language referring
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to the “unique loss to society” resulting from a victim’s death.
her in the face a second time, all the while ignoring her desperate screams. Furthermore, despite the presence of police officers outside the house who could have assisted Fisher before or after the second gunshot, Cuesta-Rodriguez kept them locked out of the house for another three hours.
13. Continuing Threat: Sufficiency of Evidence ¶75 Cuesta-Rodriguez claims the evidence was insufficient to support the jury’s finding of the continuing threat aggravating circumstance. We review a challenge to the sufficiency of the evidence of an aggravating circumstance in the light most favorable to the State to determine whether any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. Jackson v. State, 2007 OK CR 24, ¶ 29, 163 P.3d 596, 604. ¶76 To support this aggravating circumstance, the State must show that a defendant will continue to present a threat to society after sentencing. Cudjo v. State, 1996 OK CR 43, ¶ 30, 925 P.2d 895, 902. “A defendant’s criminal history, the callousness of the crime, threats against others, lack of remorse, and attempts to prevent calls to the police are all factors” that can support a finding of continuing threat. Id. The record contains evidence of several of these factors: (a) Criminal History: A California conviction for possession of heroin for sale; arrest for driving under the influence. (b) Threats and Violence Against Others: A previous girlfriend obtained a victim protective order against Cuesta-Rodriguez because he had been drinking, angry, and violent; domestic abuse against Olimpia Fisher by CuestaRodriguez in the weeks before the murder that left bruises on her abdomen and arm. (c) Preventing Calls to Police: As Fisher attempted to call police for help on the night of her death, Cuesta-Rodriguez snatched the telephone from her hands, threw it against the window, and shot her. (d) Callousness of the Crime: Cuesta-Rodriguez delivered the first gunshot to the right side of Fisher’s face as her pregnant eighteen-year-old daughter watched in horror. Then, rather than seeking help, Cuesta-Rodriguez carried Fisher to his bed in another room and several minutes later, after Fisher struggled with him and tried to escape, shot 2338
In its totality, this evidence is sufficient to support the jury’s finding of the continuing threat aggravating factor. 14. Heinous, Atrocious, Cruel: Sufficiency of Evidence ¶77 Cuesta-Rodriguez claims the evidence was insufficient to support the jury’s finding that this murder was heinous, atrocious, or cruel. Again, we review a challenge to the sufficiency of the evidence of an aggravating circumstance in the light most favorable to the State to determine whether any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. Jackson, 2007 OK CR 24, ¶ 29, 163 P.3d at 604. ¶78 To establish that the murder was heinous, atrocious, or cruel, the State must prove: (1) that the murder was preceded by either torture of the victim or serious physical abuse; and (2) that the facts and circumstances of the case establish that the murder was heinous, atrocious, or cruel. DeRosa v. State, 2004 OK CR 19, ¶ 96, 89 P.3d 1124, 1156. The “term ‘torture’ means the infliction of either great physical anguish or extreme mental cruelty.” Id. A finding of “serious physical abuse” or “great physical anguish” requires that the victim have experienced conscious physical suffering prior to her death. Id. “[T]he term ‘heinous’ means extremely wicked or shockingly evil; the term ‘atrocious’ means outrageously wicked and vile; and the term ‘cruel’ means pitiless, designed to inflict a high degree of pain, or utter indifference to or enjoyment of the suffering of others.” Id. ¶79 When Cuesta-Rodriguez fired the first .410 shotgun cartridge from his pistol into Olimpia Fisher’s eye, she was not rendered unconscious and continued to struggle. At one point during that struggle, Fisher screamed and banged on a barred bedroom window in an apparent attempt to escape. Her screams and banging were loud enough for police officers to hear through the closed doors and windows. The time between the first shot to her
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right eye, and the final fatal shot to the left eye was at least seven minutes. During this time, Fisher must have consciously experienced great physical and mental suffering. Additionally, the facts that Cuesta-Rodriguez fired the first shot in the presence of Fisher’s daughter, targeted Fisher’s eyes, ignored her screams after shooting her, and allowed her to linger for at least seven minutes show that the crime was pitiless. That is, the evidence allowed a reasonable inference that Cuesta-Rodriguez intended to inflict a high degree of pain and did so with utter indifference to Fisher’s suffering. There was sufficient evidence for the jury to find this aggravating factor beyond a reasonable doubt. 15. Heinous Atrocious Cruel Aggravator Unconstitutional as Overbroad ¶80 Cuesta-Rodriguez claims that the heinous, atrocious, or cruel aggravating circumstance is unconstitutionally vague and overbroad on its face, and as applied to him. We have consistently rejected such claims in other cases and see nothing to convince us to change course here. See Thacker v. State, 2004 OK CR 32, ¶ 26, 100 P.3d 1052, 1058 (collecting cases). Nor do we find the heinous, atrocious, or cruel aggravator vague or overbroad as applied to Cuesta-Rodriguez because the aggravator does not require a showing that the injuries CuestaRodriguez inflicted on the victim were the result of gratuitous violence. See Mitchell v. State, 2006 OK CR 20, ¶ 104, 136 P.3d 671, 711 (“we have recently addressed the argument that this aggravator is ‘overbroad as applied’ and explained that an aggravating circumstance does not become ‘overbroad’ based upon the manner it is applied to particular cases”); DeRosa, 2004 OK CR 19, ¶¶ 92-93, 89 P.3d at 1154-55 (rejecting argument that heinous, atrocious, cruel aggravator should be restricted to cases involving infliction of gratuitous violence). ¶81 Cuesta-Rodriguez also claims that the heinous, atrocious, or cruel aggravator was rendered invalid by Dr. Gofton’s testimony about Olimpia Fisher’s manner of death. Specifically, Cuesta-Rodriguez argues that Dr. Gofton’s testimony created the impression that Fisher’s manner of death could have been slower than that described by Dr. Jordan in his autopsy report. According to Cuesta-Rodriguez, because Dr. Gofton’s testimony about Dr. Jordan’s autopsy report was improperly admitted, his conclusion as to the length of time Vol. 81 — No. 28 — 10/16/2010
Fisher consciously experienced suffering lacked any foundation. Assuming that Dr. Gofton’s testimony as to the length of time Fisher may have remained conscious after the second gunshot to her face was improperly admitted, the error was harmless. Regardless of the length of time Fisher may have remained conscious after the second gunshot, other evidence, independent of Dr. Gofton’s testimony, showed that Fisher experienced conscious physical suffering prior to her death. ¶82 Specifically, police officers testified that Fisher was alive and conscious when they arrived on scene several minutes after being summoned by Fisher’s daughter because they could hear Fisher screaming and banging on a bedroom window trying to escape. Understanding that Fisher had been shot in the face several minutes before the police arrived, and having seen photographs of Fisher’s face showing the blasted out right eye socket, jurors could reasonably conclude, independent of any testimony by Dr. Gofton, that in the several minutes before the fatal gunshot, Fisher experienced conscious physical suffering. Any error in the admission of Dr. Gofton’s testimony as to the length of time Fisher may have consciously suffered after the second gunshot is therefore harmless beyond a reasonable doubt. 16. Limitation on Mitigating Evidence ¶83 Cuesta-Rodriguez claims that his due process and Eighth Amendment rights to present mitigating evidence were violated when the judge presiding over pretrial motions issued a ruling limiting the testimony of Dr. Hamm, an expert on Cuba. Dr. Hamm had studied the conditions surrounding the Mariel Boatlift and the conditions in the facilities where certain Cubans such as Cuesta-Rodriguez were held while the United States and Cuba attempted to reach an agreement on what to do with them. Defense counsel represented that Dr. Hamm would provide specific testimony about conditions in Cuba for Cuesta-Rodriguez and his family as well as the conditions of Cuesta-Rodriguez’s confinement in federal custody while awaiting a determination of his status. Counsel asserted that Dr. Hamm’s testimony was essential to the jury understanding the cultural and historic background of Cuesta-Rodriguez’s mitigation case. The trial court judge ruled that Dr. Hamm could testify about general matters related to
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the boatlift and detention of Cuban nationals, but he could not testify as to the specifics of Rodriguez’s case or testify as to hearsay statements made by Cuesta-Rodriguez’s mother or other relatives. ¶84 At trial, Dr. Hamm testified at length about the Mariel Boatlift, the circumstances that caused it, and the conditions of confinement in the United States of the relatively small numbers of Cubans that were incarcerated. Dr. Hamm also testified about the causes and history of prison riots involving incarcerated Marielitos. Cuesta-Rodriguez’s counsel did not attempt to elicit testimony from Dr. Hamm about any specifics of Cuesta-Rodriguez’s migration via Mariel or Cuesta-Rodriguez’s activities while incarcerated, and counsel did not object for being constrained against doing so by the previous judge’s pretrial ruling. At one point during Dr. Hamm’s testimony, the prosecutor objected to the testimony’s relevance to Cuesta-Rodriguez, and the judge’s response, directed to Cuesta-Rodriguez’s counsel, was merely to “cut to the chase.” ¶85 Cuesta-Rodriguez now claims that the pretrial ruling on the State’s motion in limine was incorrect and that the trial court judge’s sustaining of the prosecutor’s objection to Dr. Hamm’s testimony that was given at trial in accordance with the pretrial ruling was also incorrect. Cuesta-Rodriguez contends that the combined effect of both of these rulings denied him the opportunity to present evidence in mitigation of the death penalty. Specifically, Cuesta-Rodriguez argues that he was denied the opportunity through Dr. Hamm’s testimony to provide the jury with the cultural and historic context of Cuesta-Rodriguez’s mitigation case. ¶86 There are several problems with this argument. First, Cuesta-Rodriguez did not raise the previous judge’s pretrial ruling again at trial, nor did he proffer to the trial judge what testimony he wanted to present beyond that authorized by the pretrial ruling. “A ruling on a motion in limine is advisory and not conclusive.” Kaiser v. State, 1983 OK CR 156, ¶ 5, 673 P.2d 160, 161. “An incorrect ruling on a pretrial motion is not grounds for reversal.” After a motion in limine is sustained, the party seeking to introduce the evidence must make an offer of proof at trial. Id. ¶ 6, 162. This affords the trial court an opportunity to make a final ruling on the evidence. Id. “Failure to follow the proper procedure contesting a ruling 2340
on a motion in limine waives the issue for appellate review.” Id. This issue was not properly preserved for appellate review. It is waived. ¶87 Second, the claim fails in substance. As he did below, Cuesta-Rodriguez fails to identify here, just what testimony he was precluded from presenting by the pretrial ruling on the State’s motion in limine. The trial record shows that Dr. Hamm testified at great length about the Mariel Boatlift of 1980 and the political, social, and economic circumstances that gave rise to it. He also testified about the numbers of Cubans that entered the United States via the Mariel Boatlift (Marielitos), the numbers that were released into the United States, and the numbers and reasons that some of the Marielitos were detained in federal prisons. Dr. Hamm also testified as to the conditions under which the detained Marielitos were incarcerated, to include the conditions that gave rise to the Marielito prison riots in the two federal prisons that housed them in 1987. Dr. Hamm explained further that as a result of the negotiated end of the prison disturbances, the federal government agreed to provide a “meaningful review” for release or deportation to Cuba for all incarcerated Marielitos. He also explained the review process and how someone like CuestaRodriguez would have been affected by longterm indefinite incarceration and how he would have been processed for release under the federal government’s “meaningful review” procedures. This testimony provided the jury with cultural and historical context concerning the Mariel Boatlift, the Marielito detainees, and by implication, Cuesta-Rodriguez’s background as a Marielito. ¶88 Additionally, Cuesta-Rodriguez’s claim that the trial court erroneously sustained the State’s relevance objection during the course of Dr. Hamm’s testimony also fails when considered on the merits. At one point, when defense counsel asked Dr. Hamm to compare the Marielito prison riots to riots in other American prisons involving American prisoners, the prosecutor objected on grounds of relevance. In response to the objection, and after some discussion at the bench, the trial court judge sustained the objection and told defense counsel to “cut to the chase” (Tr. Vol. 6, 1144). We agree with the trial court and fail to see how a comparison of the Marielito prison riot in the Atlanta federal prison with other American historic prison riots, would have been relevant as to
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Cuesta-Rodriguez’s degree of blameworthiness in the murder of Olimpia Fisher. Further, in light of Dr. Hamm’s extensive testimony about the course of the Marielito prison riots and his testimony about the Mariel Boatlift and the treatment of the Marielitos in the United States, we fail to see how the trial court’s sustaining of this objection prejudiced Cuesta-Rodriguez’s ability to provide the jury with cultural and historical context concerning Cuesta-Rodriguez’s background as a Marielito. 17. Misleading Mitigating Evidence Jury Instruction ¶89 Cuesta-Rodriguez claims that the jury instruction defining mitigation in his case contradicted the instruction that listed specific mitigating circumstances the jury should consider. According to Cuesta-Rodriguez, this alleged contradiction rendered the sentencing proceeding unreliable. ¶90 During the penalty phase, the jury was given an instruction that defined mitigating circumstances as follows: Mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame. The determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case. (O.R. Vol. 7, 1284 (Instruction No. 9)). This instruction was a nearly verbatim version of Instruction No. 4-78, OUJI-CR(2d)(Supp.2007). The Jury was also instructed that: Evidence has been introduced as to the following mitigating circumstances: 1. Carlos Cuesta came to the United States from the poverty-stricken Communist country of Cuba. 2. Carlos Cuesta came to the United States with 120 thousand other Cubans during the Mariel Boat Lift of 1980. 3. Carlos Cuesta was taken into Federal detention in 1983 after he was convicted of possession of heroin for sale and sentenced to one year in jail and four years probation. 4. During his time in Federal custody, some Cubans in the prison who feared repatriation revolted. Carlos Cuesta volunVol. 81 — No. 28 — 10/16/2010
teered for and welcomed repatriation so that he would see his family again. 5. During his Federal Detention, Cuesta used his time productively to learn to speak and read English. 6. Carlos Cuesta has a long, stable work history with Forest Lumber and Dan Fioroni, Chairman of the Board. From 1992 until 2002 he was a respected, valued employee of Forest Lumber. And after his departure from Forest Lumber, he remained a cherished and trusted friend of Mr. Fioroni’s, even continuing to work at Mr. Fioroni’s personal residence until the time of his arrest. Carlos Cuesta has the friendship and support of Dan Fioroni now and in the future. 7. For seven years Carlos Cuesta volunteered his time and skills in the Christmas in April project, where the homes of elderly and needy persons were made safe and habitable. 8. Carlos Cuesta’s past employment experiences and willingness to work will make his an asset to a prison community where productive inmate workers are needed. 9. Carlos Cuesta has family in Cuba that he has maintained regular contact with throughout the years, through letters and telephone calls. These family members appeared through depositions and/ or videotape and asked you to spare Carlos Cuesta’s life. 10. Carlos Cuesta loves his son, Carlos (Kery) Cuesta Gonzalez, and despite time and distance, has had a positive influence on him. Carlos (Kery) Cuesta Gonzalez is studying to become a writer because of the beautiful letters his father wrote to the family over the years. 11. After entering into a relationship with Olimpia Fisher, Carlos Cuesta began to suffer from serious, debilitating depression. This condition was made worse by self medication with alcohol and other substances. 12. Carlos Cuesta’s mental condition rapidly deteriorated such that it was obvious to those around him. This deteriorated mental condition, combined with alcohol and other substances, culmi-
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nated in Carlos Cuesta’s actions on May 31, 2003 which caused the death of Olimpia Fisher. 13. For the past 4 years Carlos Cuesta’s mental condition has been effectively stabilized by medications that are given to him in the county jail. These medications ease the symptoms of depression and delusions. 14. While housed in the County Jail, Carlos Cuesta was identified by jail medical staff as being a candidate for the WRAP Program, a Department of Mental Health program, in which Carlos Cuesta actively participated and successfully completed. 15. Carlos Cuesta has behaved well in the Oklahoma County Jail the past 4 years while he has been awaiting trial. 16. Carlos Cuesta is remorseful for causing the death of Olimpia Fisher. In addition, you may decide that other mitigating circumstances exist, and if so, you should consider those circumstances as well. (O.R. Vol. 7, 1287-1288 (Instruction No. 10)). With the exception of the specific circumstances enumerated, this instruction was taken directly from Instruction No. 4-79, OUJICR(2d)(Supp.2007). ¶91 Cuesta-Rodriguez argues that these instructions, as given, were confusing to the jury and therefore could have led to an erroneous application of the death penalty because when read together, the mitigating circumstances listed in Instruction 10 do not fit within the definition of mitigating circumstances given in Instruction 9. We do not see any contradiction. For example, the fact that CuestaRodgriguez was remorseful, or the fact that he volunteered to help the elderly and needy are things which, in fairness, sympathy, or mercy, could extenuate or reduce the degree of moral culpability or blame because they are evidence of good character.15 ¶92 Cuesta-Rodriguez argues further, however, that jurors likely understood these instructions when combined with the prosecutor’s closing argument as foreclosing them from considering the proffered mitigating evidence because it did not tend to reduce his moral cul2342
pability or blame for the crime for which he had been convicted. ¶93 We rejected a nearly identical argument in Harris v. State, 2007 OK CR 28, ¶ 25, 164 P.3d 1103, 1113, and do the same here. As we did in Harris, we do not read Instruction No. 9 (based on Instruction No. 4-78, OUJI-CR(2d)) (Supp.2007) as foreclosing consideration of the mitigating circumstances cited in Instruction No. 10 (based on Instruction No. 4-79, OUJICR(2d)(Supp.2007)).16 The jury was properly instructed. ¶94 Unlike Harris, however, where we found that a prosecutor argued improperly that jurors should not consider defendant Harris’s evidence as mitigating because it did not extenuate or reduce his guilt or moral culpability, we find that the prosecutor’s argument in this case was proper. Specifically, the prosecutor in this case did not urge the jury to categorically disregard the proffered mitigation evidence, but instead argued that the evidence offered in mitigation did not support an inference of reduced culpability. (See e.g., Tr. Vol. 7, 1284 (“And, again, I’m not telling you don’t listen to them; by all means, you consider what they have to say. I’m telling you that . . . it doesn’t do anything to reduce the moral culpability of what he did to Olimpia Fisher”), 1313 (“So now let’s look at the mitigating evidence they offer . . . and you ask yourselves . . . does that reduce his degree of culpability or blame? State submits no”). The prosecutor in this case properly argued the evidence and reasonable inferences to be drawn from it. See e.g., Selsor v. State, 2000 OK CR 9, ¶¶ 38-40, 2 P.3d 344, 354 (finding that prosecutor’s argument constituted fair comment on defendant’s mitigating evidence where argument was based on facts adduced at trial and reasonable inferences drawn from it). 18. Prosecutorial Misconduct ¶95 Cuesta-Rodriguez claims that numerous instances of improper argument and questioning of witnesses during the sentencing phase of his trial produced a sentence that failed to meet the heightened standard of reliability in death penalty cases required by the Eighth Amendment. According to Cuesta-Rodriguez, the prosecutors asked questions designed to make the jury disregard the mitigating circumstances and did so in pursuit of a strategy of convincing jurors that the defense had not presented any mitigating evidence to weigh against the
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aggravators. With regard to closing argument, Cuesta-Rodriguez contends that the prosecutors made many statements designed to diminish, denigrate, or completely invalidate the mitigating evidence that was presented. ¶96 “Relief will be granted on a prosecutorial misconduct claim only where the misconduct effectively deprives the defendant of a fair trial or a fair and reliable sentencing proceeding.” Mitchell, 2006 OK CR 20, ¶ 95, n.208, 136 P.3d at 708, n.208. We evaluate alleged prosecutorial misconduct 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. Hanson v. State, 2009 OK CR 13, ¶ 18, 206 P.3d 1020, 1028; see also Paxton v. State, 1993 OK CR 59, ¶ 69, 867 P.2d 1309, 1329 (holding that alleged errors of prosecutorial misconduct should not, on an individual basis, serve as cause for reversal, but instead require reversal only if cumulative effect was such that they deprived defendant of fair trial). ¶97 We have reviewed the prosecutors’ questions and comments cited by Cuesta-Rodriguez as improper. With one exception, we see nothing in any of those questions or comments, individually or cumulatively, that go beyond an attempt to minimize the effect of the evidence presented by the defense, or going beyond discussing the evidence in arguing for an appropriate sentence. See Warner v. State, 2006 OK CR 40, ¶ 192, 144 P.3d 838, 891 (“prosecutor may properly attempt to minimize the effect of the evidence presented by the defense”); Bland v. State, 2000 OK CR 11, ¶ 94, 4 P.3d 702, 727 (holding that prosecutor may discuss evidence during penalty phase and argue for appropriate punishment). Additionally, the jury was properly instructed as to mitigating evidence, and the prosecutors’ questions and argument, while often pointed or skeptical, did not preclude the jury from considering all the mitigating evidence. Warner, 2006 OK CR 40, ¶ 192, 144 P.3d at 891; see also Powell v. State, 2000 OK CR 5, ¶ 139, 995 P.2d 510, 538 (finding no error where prosecutor made legal arguments as to why mitigating circumstances listed in the jury instructions should not be considered as reducing blame because jury was not precluded from considering as mitigating factor, any aspect of defendant’s character or record or any circumstances of offense that appellant proffered as basis for Vol. 81 — No. 28 — 10/16/2010
sentence less than death). Cuesta-Rodriguez was not denied a fair or reliable sentencing proceeding. ¶98 We do note, however, that in one instance, when referring to defense counsel’s closing argument, the prosecutor told jurors that “what you’ve heard for 20 minutes is the guilt trip” (Tr. Vol. 7, 1304). Defense counsel immediately objected and the judge admonished the prosecutor to rephrase the statement. On rephrasing the statement, the prosecutor told the jury: You know, when I say guilt trip, you don’t need to feel guilty about doing your job. He’s the one that brought us together. It is his actions. And I want to talk about that because you can consider sympathy absolutely. (Tr. Vol. 7, 1306). And shortly thereafter, he said: So, yeah, when they want to talk to you about mercy, which you can consider, and I submit to you you decide if you should feel guilty about doing your job . . . [defense objection, overruled] . . . So when they ask you about mercy, and I say, you don’t have to feel guilty if you’re sitting on this jury; you’re doing your civic duty. (Tr. Vol. 7, 1310). ¶99 In Hooker v. State, 1994 OK CR 75, ¶ 55, 887 P.2d 1351, 1367, we specifically condemned the practice of referring to mitigation as a “guilt trip.” Like the “guilt trip” argument in Hooker, the prosecutor’s first “guilt trip” comment in this case pushes beyond the limits of permissible argument because it was not a comment on the evidence, but instead was an obvious attempt to denigrate Cuesta-Rodriguez’s mitigation defense. The prosecutor’s other two comments referring to “guilt trip” or feeling guilty both come very close to crossing this line. Nevertheless, we do not find that any of these comments were verdict determinative, and given the strength of the evidence supporting imposition of the death penalty, they were harmless. Id. In any event, while we find the improper argument was harmless in this instance, we caution prosecutors in future cases to keep their argument focused on the evidence and to avoid making comments that do nothing but denigrate the defense.
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19. Miscellany ¶100 In this section, Cuesta-Rodriguez raises eight claims, challenging various sentencing phase jury instructions, the constitutionality of Oklahoma’s death penalty scheme, and the manner in which the death penalty is carried out. ¶101 Cuesta-Rodriguez contends that the sentencing phase jury Instruction No. 6, as taken verbatim from Instruction No. 4-76, OUJI-CR(2d)(Supp.2000), seriously diminished the effect of the mitigating evidence. Cuesta-Rodriguez did not object to this instruction at trial, and in fact, as the State points out, his requested instruction contains the very language he now claims is defective. This claim is waived. See Warner, 2006 OK CR 40, ¶ 135, 144 P.3d at 881 (holding that failure to object to jury instruction waives all but plain error review); Ellis, 1992 OK CR 45, ¶ 28, 867 P.2d at 1299 (holding that invited error may not serve as basis for reversal). We find no plain error. See Pickens v. State, 1993 OK CR 15, ¶¶ 43-45, 850 P.2d 328, 339 (rejecting similar claim on the merits). ¶102 Cuesta-Rodriguez argues that Instruction No. 6, taken verbatim from Instruction No. 4-76, OUJI-CR(2d)(Supp.2000), erroneously implies that a life sentence is appropriate only if the jury failed to find the existence of an aggravating circumstance. Again, CuestaRodriguez did not object to this instruction at trial, and again, in fact, he requested the very language he now claims is defective. This claim is waived. See Warner, 2006 OK CR 40, ¶ 135, 144 P.3d at 881; Ellis, 1992 OK CR 45, ¶ 28, 867 P.2d at 1299. We find no plain error.17 ¶103 Cuesta-Rodriguez claims that Instruction No. 13, taken directly from Instruction No. 4-80, OUJI-CR(2d)(Supp.1997), set out an improper burden of proof by failing to instruct jurors that the aggravating factors must outweigh the mitigating circumstances beyond a reasonable doubt in order to impose the death penalty. We have consistently rejected this claim in other cases. Harris v. State, 2004 OK CR 1, ¶ 66, 84 P.3d 731, 754-55; Torres v. State, 2002 OK CR 35, ¶ 7, 58 P.3d 214, 216. We are not persuaded to revisit the issue here. ¶104 Cuesta-Rodriguez attacks the entire death penalty scheme for this State as unconstitutional for vagueness, overbreadth, abuse of prosecutorial discretion, and arbitrariness. Cuesta-Rodriguez’s brief provides neither 2344
argument nor authority to support these sweeping allegations. Instead, he purports to “incorporate by reference” into his brief the arguments and authorities on these issues as they were raised in pretrial motions in the trial court (See Aplt’s Brief at 93). Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), requires that an appellant’s brief, among other things, must include: An argument, containing the contentions of the appellant, which sets forth all assignments of error, supported by citations to the authorities, statutes, and parts of the record. Each proposition of error shall be set out separately in the brief. Merely mentioning a possible issue in an argument or citation to authority does not constitute the raising of a proposition of error on appeal. Failure to list an issue pursuant to these requirements constitutes waiver on appeal. See Armstrong v. State, 1991 OK CR 34, 811 P.2d 593, 599. (Emphasis added). Rule 3.5(A)(5) is clear. This rule unambiguously directs that an appellant’s argument and authority must be contained within the pages of his brief. Cuesta-Rodriguez’s brief does not comply with the rule. The issue is waived.18 ¶105 Cuesta-Rodriguez contends that the trial court erroneously denied his motion to strike Oklahoma’s death penalty sentencing procedure as unconstitutional because it requires a jury to make special findings of fact prohibited by Okla. Const. art. VII, § 15. Cuesta-Rodriguez asks us to reconsider our prior decision on this issue as set out in Duckett v. State, 1995 OK CR 61, ¶ 91, 919 P.2d 7, 27, but provides no argument or authority to support his claim. This issue is waived. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010). ¶106 Cuesta-Rodriguez argues that the trial court erroneously denied his request for a jury instruction on the presumption of a life sentence. Again, Cuesta-Rodriguez provides no argument or authority to support his claim. The issue is waived. Rule 3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010). ¶107 Cuesta-Rodriguez claims that the trial court erroneously denied his motion to allow him the right of allocution and to argue last but fails to provide any argument or authority to support this claim. The issue is waived. Rule
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3.5(A)(5), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010). ¶108 Cuesta-Rodriguez claims that Oklahoma’s use of lethal injection is cruel and unusual punishment in violation of the Federal and Oklahoma Constitutions. See U.S. Const. amend. VIII; Okla. Const. art. II, § 9. CuestaRodriguez contends that one of the drugs used in the death penalty in Oklahoma (pancuronium bromide) may leave an inmate awake as two other unnamed drugs used in the process cause him to suffocate slowly and painfully. He also argues that Oklahoma’s death penalty protocol is flawed because: (1) it shields the identities of those administering the drugs; (2) leaves certain decisions surrounding administration of the lethal drugs up to the individuals administering them; and (3) there is no backup plan should a doctor be unavailable to assist in the execution as a result of medical ethics or other circumstances. Cuesta-Rodriguez did not raise this issue in the trial court. The issue is therefore waived for all but plain error. Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693. ¶109 In support of his position about which drugs and procedures are used in the Oklahoma lethal injection process, Cuesta-Rodriguez refers to a document entitled “Procedures for the Execution of Inmates Sentenced to Death.” With regard to the alleged inadequacies of the drug pancuronium bromide, CuestaRodriguez refers to a New York Times article. We are unable to find the procedure document cited by Cuesta-Rodriguez anywhere in the record. Nor are we able to find any mention of the drug pancuronium bromide in the record, nor any listing of the names of other drugs that are used, nor any record information about potential inadequacies of pancuronium bromide when used individually or in combination with the two unnamed drugs to which Cuesta-Rodriguez refers. Cuesta-Rodriguez has not provided a sufficient record to allow us to address this issue. See Warner, 2006 OK CR 40, ¶ 148 144 P.3d at 883 (finding that where record does not set out Oklahoma’s lethal injection protocol, an appellant’s claim of Eighth Amendment violation based on reference to pancuronium bromide and “two other” drugs and supported by newspaper articles is speculative “at best”). Consequently, on this record, we cannot find a substantial violation of any constitutional right against cruel or unusual punishment. See Cardenas v. State, 1985 OK CR 21, ¶ 7, 695 P.2d 876, 879 (“[i]t is the Vol. 81 — No. 28 — 10/16/2010
appellant’s burden to include enough of the record on appeal to permit the review of alleged error”). There is no plain error. See Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923 (holding that plain error requires, among other things, showing that error affected substantial right); 20 O.S.2001, § 3001.1 (prohibiting setting aside of judgment unless reviewing court is of opinion that alleged error constitutes substantial violation of constitutional right). 20. Cumulative Error ¶110 Cuesta-Rodriguez claims that even if no single error in his case warrants reversal, an accumulation of errors denied him a fair trial and sentence determination. This Court has held 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). While we conclude that Cuesta-Rodriguez’s trial was not error free, the errors do not require relief because when considered in the aggregate, they did not render his trial fundamentally unfair, taint the jury’s verdict, or render the sentencing unreliable. Any errors were harmless beyond a reasonable doubt, individually and cumulatively. 21. Mandatory Sentence Review ¶111 Title 21 O.S.2001, § 701.13 requires this Court to determine “[w]hether the sentence of 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). ¶112 Having reviewed the record in this case, we find that Cuesta-Rodriguez’s death sentence was not the result of trial error, prosecutorial misconduct, or improper evidence or witness testimony and that Cuesta-Rodriguez’s death sentence was not imposed under the influence of any arbitrary factor, passion, or prejudice.
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¶113 The jury’s finding that Cuesta-Rodriguez posed a continuing threat to society and that he murdered Olimpia Fisher in a heinous, atrocious, or cruel manner, is amply supported by the evidence. 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. DECISION ¶114 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 delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE VIRGIL C. BLACK, DISTRICT JUDGE APPEARANCES AT TRIAL Catherine Hammarsten, Cynthia Viol, Assistant Public Defenders, 320 Robert S. Kerr, Suite 611, Oklahoma City, OK 73102, Attorneys for Defendant Steve Deutsch, Scott Rowland, Assistant District Attorneys, 320 Robert S. Kerr, Suite 505, Oklahoma City, OK 73102, Attorneys for State APPEARANCES ON APPEAL Andrea Digilio Miller, Assistant Public Defender, Oklahoma County Public Defender’s Office, 611 County Office Building, 320 Robert S. Kerr Avenue, Oklahoma City, OK 73102, Attorneys for Appellant W.A. Drew Edmondson, Oklahoma Attorney General, Robert Whitaker, Assistant Attorney General, 313 N.E. 21st Street, Oklahoma City, OK 73105, Attorneys for Appellee OPINION BY: A. JOHNSON, V.P.J. C. JOHNSON, P.J.: Concur LUMPKIN, J.: Concur in Results LEWIS, J.: Concur TAYLOR, A.J.: Concur 1. Katya Chacon testified that the gunshot hit the right side of Fisher’s face. 2. Cuesta-Rodriguez told police that Katya beat him with a baseball bat before he shot Fisher. Cuesta-Rodriguez also told police that the gun went off as Fisher attempted to wrestle it from him. CuestaRodriguez said the shot hit near her eyes, but thought it might have hit near her left eye. 3. In addition to being the situs of Fisher’s injuries, Fisher’s eyes came up in another context. According to the testimony of Fisher’s former boyfriend, when Fisher terminated their relationship in favor of
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Cuesta-Rodriguez, Fisher said that she had “put her eyes on somebody else” (Tr. Vol. 2, 347-348). The ex-boyfriend stated he was familiar with Fisher’s use of this unusual phrase because she previously told him that if she put her eyes on somebody else, that meant she was “interested in him” (Tr. Vol. 2, 347-348). 4. In his statement to police, Cuesta-Rodriguez insisted that he acted out of anger toward Fisher as a result of his belief that she was seeing other men, not as a result of having consumed alcohol. 5. In Cuesta-Rodriguez’s reply brief and at oral argument, counsel for Cuesta-Rodriguez asserted that detectives ended their initial interview with Cuesta-Rodriguez because he was too intoxicated to continue. Cuesta-Rodriguez does not point to any portion of the trial record where this information can be found. To the contrary, Detective Carson specifically denied terminating the interview for intoxication, and stated instead that the interview was stopped because CuestaRodriguez was sleepy and not feeling well. Detective Dupy testified that the interview was terminated to give Cuesta-Rodriguez the opportunity to get some sleep. According to Dupy, although CuestaRodriguez appeared slightly intoxicated, he also appeared emotionally drained, tired, and slow to respond. 6. Dr. Choca testified during the second stage and stated that Cuesta-Rodriguez told him that on the day of the murder he injected himself with diprospan. 7. The trial court’s decision to instruct the jury on heat of passion manslaughter as a lesser included offense was based on evidence showing that Cuesta-Rodriguez was angry at Fisher for cheating on him. According to the trial court: I’m going to give you the heat of passion because he says — the first thing he ever says, she’s cheating on me, cheating on me, over and over again, and that seems to be the whole gist of this, that he was angry because of some real or imagined infidelity on the part of the victim. (Tr. Vol. 5, 888). 8. At least three appellate courts have applied Melendez-Diaz to cases involving autopsy reports and substitute medical examiners as expert witnesses. All three courts found that autopsy reports of homicides were testimonial and that the medical examiner who wrote the report was a witness for Confrontation Clause purposes. See Wood v. State, 299 S.W.3d 200, 209-210 (Tex.App. 2009)(holding that under Melendez-Diaz, autopsy report involving death that was suspected homicide was testimonial statement and that medical examiner who wrote report was witness within meaning of Confrontation Clause); Commonwealth v. Avila, 912 N.E.2d 1014, 1029-1030 (Mass. 2009)(holding that medical examiner who did not perform victim’s autopsy but who, in preparation for testifying, reviewed autopsy report and related materials of medical examiner who performed autopsy, is not permitted, under Confrontation Clause, on direct examination, to recite or otherwise testify about underlying factual findings of unavailable medical examiner as contained in autopsy report; the examiner’s testimony must be confined to his or her own opinions and, as to these, the examiner is available for cross-examination); State v. Locklear, 681 S. E.2d 293, 304-05 (N.C. 2009)(holding that autopsy report is testimonial and therefore inadmissible under Melendez-Diaz and Crawford absent showing that forensic analyst was unavailable to testify and defendant had prior opportunity to cross-examine). See also, State v. Martin, 291 S.W.3d 269, 283-88 (Mo.App. 2009)(holding that error in allowing medical examiner who did not conduct autopsy to testify about report of medical examiner who did conduct autopsy and admitting autopsy report to show that victim died of smoke inhalation was harmless, despite claim that autopsy was testimonial evidence and that medical examiner’s testimony therefore violated Confrontation Clause, given that means of victim’s death was not disputed at trial, and testimony was cumulative of other admissible evidence of forensic toxicologist that victim’s toxicology report revealed fatal amounts of carbon monoxide in her body). But see, People v. Lewis, No. 274508, __ N.W.2d ___ (Mich.App. Jan. 12, 2010)(finding no Confrontation Clause violation under Melendez-Diaz where substitute medical examiner testified about autopsy report prepared by another medical examiner on grounds that state statute required autopsy reports under certain circumstances regardless of whether criminal prosecution is contemplated). 9. 21 O.S.2001, § 691(A). 10. See Browning v. State, 2006 OK CR 8, ¶ 47, 134 P.3d 816, 841-42 (“The heinous, atrocious or cruel aggravating circumstance requires proof beyond a reasonable doubt that the victim’s murder was preceded by torture or serious physical abuse, including great physical anguish or extreme mental cruelty. A finding of serious physical abuse requires proof that the victim consciously suffered before death”). 11. Having found a confrontation error in this case resulting from a substitute medical examiner testifying as to the contents of a nontestifying medical examiner’s report, we believe it would be better practice in future cases for a substitute medical examiner to prepare his
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or her own report and testify from it. Of course, such a report must be provided to the defendant in a timely manner. 12. Cuesta-Rodriguez requested the following instruction: There has been evidence presented that the State in this case failed to preserve or collect evidence that existed at the home of Carlos Cuesta and Olimpia Fisher, specifically a note written by Carlos Cuesta to Olimpia Fisher and Katya Chacon that would have shown Defendant’s state of mind just hours before Olimpia Fisher was killed and empty tequila bottles and a shot glass that would have corroborated testimony that Defendant was intoxicated at the time Olimpia Fisher was killed. The failure of the State to preserve this evidence creates a rebuttable presumption that the missing evidence has qualities or characteristics favorable to the Defendant and adverse to the State. This presumption could be sufficient to raise a reasonable doubt that Defendant was not intoxicated to the point he could not form the specific mental intent of malice aforethought. (O.R. 1180). 13. See Harris v. State, 2004 OK CR 1, ¶ 51, 84 P.3d 731, 750 (“we have long disapproved of attempts by the trial court to define reasonable doubt for the jury”); Al-Mosawi v. State, 1996 OK CR 59, ¶ 27, 929 P.2d 270, 279 (“[t]his Court has long and consistently condemned the giving of an instruction as to the definition of the term ‘reasonable doubt’ and held that the giving of same is error”); Romano v. State, 1995 OK CR 74, ¶ 55, 909 P.2d 92, 115 (“[i]t is error for any party to try to define “beyond a reasonable doubt”); Smallwood v. State, 1995 OK CR 60, ¶ 51, 907 P.2d 217, 231 (“[i]t is well settled that the term ‘reasonable doubt’ is self-explanatory and it is error for the trial court or prosecutor to attempt to define it for the jury”); Cheatham v. State, 1995 OK CR 32, ¶ 55, 900 P.2d 414, 428 (“it is well settled that the term ‘reasonable doubt’ is self-explanatory and is not to be defined in jury instructions”); LaFevers v. State, 1995 OK CR 26, ¶ 29, 897 P.2d 292, 305 (this Court has consistently held that ‘reasonable doubt’ is self-explanatory and any instruction on it is error); Summers v. State, 1985 OK CR 98, ¶ 2, 704 P.2d 91, 92 (“[i]t is error for the trial court or the prosecutor to attempt to define reasonable doubt to the jury”); Underwood v. State, 1983 OK CR 28, ¶ 9, 659 P.2d 948, 950 (“‘reasonable doubt’ is self-explanatory, and . . . definitions thereof do not clarify the meaning of the phrase, but rather tend to confuse the jury”); Taylor v. State, 1983 OK CR 24, ¶ 4, 659 P.2d 362, 364 (“[t]he phrase ‘reasonable doubt’ is self-explanatory and definitions of it do not clarify its meaning but tend to confuse the jury”); Pannell v. State, 1982 OK CR 13, ¶ 3, 640 P.2d 568, 570 (“An attempt to define ‘reasonable doubt’ by a trial judge is reversible error. The phrase ‘reasonable doubt’ is self-explanatory; definitions do not clarify its meaning, but rather tend to confuse the jury”). 14. Cuesta-Rodriguez calls our attention to the 2001 case of State v. Hamilton, Okla. Co. No. CF-01-1147, and the 2007 case of State v. Vargas, Okla. Co. No. CF-06-7890, and alleges that these were first degree murder cases in which the prosecutor did not seek the death penalty. Whatever the significance of these two cases, a cursory review of our published opinions shows that Oklahoma County prosecutors sought the death penalty in at least sixteen first degree murder cases during the same time period. See Simpson v. State, 2010 OK CR 6, 230 P.3d 888, Hunt v. State, 2009 OK CR 21, 218 P.3d 516, Jones v. State, 2009 OK CR 1, 201 P.3d 869, Grant v. State, 2009 OK CR 11, 205 P.3d 1, Littlejohn v. State, 2008 OK CR 12, 181 P.3d 736, Andrew v. State, 2007 OK CR 23, 164 P.3d 176, Pavatt v. State, 2007 OK CR 19, 159 P.3d 272, Wood v. State, 2007 OK CR 17, 158 P.3d 467, Smith v. State, 2007 OK CR 16, 157 P.3d 1155, Glossip v. State, 2007 OK CR 12, 157 P.3d 143, Hancock v. State, 2007 OK CR 9, 155 P.3d 796, Stouffer v. State, 2006 OK CR 46, 147 P.3d 245, Coddington v. State, 2006 OK CR 34, 142 P.3d 437, Hogan v. State, 2006 OK CR 19, 139 P.3d 907, Dodd v. State, 2004 OK CR 31, 100 P.3d 1017, Harris v. State, 2004 OK CR 1, 84 P.3d 731. 15. The version of the Oklahoma Uniform Jury Instructions in effect at the time of Cuesta-Rodriguez’s trial listed evidence of the defendant’s character as an illustrative example of a type of permissible mitigating circumstance. See Instruction No. 4-79, OUJI-CR(2d) (Supp.2007). The complete list of OUJI 4-79’s illustrative examples includes the following: (1) the defendant did not have any significant history of prior criminal activity; (2) the defendant acted under duress or under the domination of another person; (3) the defendant’s capacity to appreciate the criminality of his/ her conduct or to conform his/her conduct to the requirements of law was impaired; (4) the defendant was under the influence of mental/emotional disturbance; (5) the victim was a willing participant in the defendant’s conduct; (6) the defendant acted under circumstances which tended to justify, excuse or reduce the crime;
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(7) the defendant is likely to be rehabilitated; (8) cooperation by the defendant with authorities; (9) the defendant’s age; (10) the defendant’s character; (11) the defendant’s emotional/family history. The specific mitigating circumstances listed in the instruction that was actually given to Cuesta-Rodriguez’s jury easily fall into these categories (see main text). 16. Expressing concern about potential misuse of the language of the instruction by prosecutors in closing argument, the Harris court directed that the language of Instruction No. 4-78, OUJI-CR(2d) be modified to include language stating “(a) that mitigating circumstances may extenuate or reduce the degree of moral conduct or blame, and separately, (b) that mitigating circumstances are those which in fairness, sympathy or mercy would lead jurors individually or collectively to decide against imposing the death penalty. Harris, 2007 OK CR 28, ¶ 27, 164 P.3d at 1114-15. Harris emphasized, however, that the language of the previous OUJI instruction (the one at issue here) was not legally inaccurate, inadequate, or unconstitutional and stated further that “cases in which the current OUJI-CR (2d) 4-78 has been used and applied are not subject to reversal on this basis.” Id. ¶ 26, 1114. The jury rendered its sentencing verdict in this case on June 12, 2007. Harris was decided on July 19, 2007. 17. Even when considered on the merits, this claim fails. Instruction No. 13 (O.R. 7, 1292), is taken directly from Instruction No. 4-80, OUJI-CR(2d)(Supp.1997), which explicitly provides that “[e]ven if you find that the aggravating circumstances outweigh the mitigating circumstances, you may impose a sentence of imprisonment for life with the possibility of parole or imprisonment for life without the possibility of parole” (emphasis added). Based on this language, there is no reasonable possibility jurors could have read Instruction No. 6 as preventing them from considering life or life without parole as sentencing options if they found the existence of an aggravating circumstance. 18. Additionally, Rule 9.3(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), sets a one-hundred page limit on an appellant’s brief-in-chief in death penalty cases. Cuesta-Rodriguez’s brief is one-hundred pages long and the pretrial motions he attempts to incorporate into the brief total at least fifteen pages. If these materials from the trial court record are incorporated by reference, the brief would exceed the one-hundred page limit. Our rule sets page limits. This rule may not be circumvented by incorporating pages by reference from sources outside the brief.
LUMPKIN, JUDGE: CONCUR IN RESULTS ¶1 I concur in the Court’s decision to affirm the judgment and sentence in this case. However, I have some disagreement in how the Court arrives at those decisions. ¶2 I disagree with the majority’s reliance upon footnote 48 of Malone v. State, 2007 OK CR 34, ¶ 22 n. 48, 168 P.3d 185, 197 n. 48, in its disposition of Proposition I. “While there are exceptions, statements in footnotes are generally regarded as dicta, having no precedential value.” Cannon v. State, 1995 OK CR 45, ¶ 2, 904 P.2d 89, 108 (Lumpkin, J., concurring in result) citing Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985). Further, I continue to maintain, as I set forth in Malone, that our prior case law regarding the legal standard used to determine when an instruction on voluntary intoxication is warranted is not inconsistent. Malone, 2007 OK CR 34, ¶ 3, 168 P.3d at 233-34 (Lumpkin, P.J., concurring in party/dissenting in part). See Taylor v. State, 2000 OK CR 6, ¶ 19, 998 P.2d 1225, 1230; Jackson v. State, 1998 OK CR 39, ¶ 65, 964 P.2d 875, 892.
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¶3 As to Proposition II, it should be noted that the normal experiences and qualifications of laymen likely do not provide an understanding of the effects of illicit drug usage on one’s ability to control behavior, to think rationally, and to form an intent to kill. See Coddington v. State, 2006 OK CR 34, ¶ 42-43, 142 P.3d 437, 44950 (holding that medical physician could properly testify that defendant would have been unable to form the requisite deliberate intent of malice aforethought due to cocaine intoxication.). “Expert opinion testimony . . . is based on ‘scientific, technical, or other specialized knowledge’ and can be provided only by a witness who is ‘qualified as an expert,’ in the field at issue, ‘by knowledge, skill, experience, training, or education.’” Malone, 2007 OK CR 34, ¶ 81, 168 P.3d at 217; (quoting 12 O.S.Supp.2002, § 2702). I agree that there is nothing in the record to show that Dr. Choca, a psychologist with a Ph.D., was qualified to testify as to the effects of combining alcohol and the steroid diprospan. ¶4 As to Proposition V, I disagree with the majority’s analysis of Appellant’s claim that the admission of the Chief Medical’s Examiner’s testimony regarding an autopsy performed by his predecessor in office and the admission of certain diagrams from the autopsy violated Appellant’s right to confrontation. I agree that the Former Chief Medical Examiner’s autopsy report is not afforded any special status and is considered testimonial for Sixth Amendment confrontation purposes under Crawford v. Washington, 541 U.S. 36, 47 n. 2, 124 S.Ct. 1354, 1361 n. 2, 158 L.Ed.2d 177 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, 2538, 174 L.Ed.2d 314 (2009). However, to properly ascertain whether Appellant’s right to Confrontation was violated we must determine whether the State’s expert is simply a conduit for an absent witness’s conclusions or whether the State’s expert is offering his own conclusions, based in part on the data, analysis and conclusions of other professionals reasonably relied upon by experts in the field. See Vann v. State, 229 P.3d 197, 206 (Alaska App., 2010) (“when the government’s expert is simply a conduit for an absent witness’s analysis, courts find a violation of the confrontation clause; but when the government’s expert offers their own analysis, based in part on test data obtained from other people, courts find that the confrontation clause is satisfied.”); see also United States v. Johnson, 587 F.3d 625, 636 (4th Cir. 2009) (“An expert witness’s reliance on evidence that Crawford would bar if offered directly only 2348
becomes a problem where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation.”). ¶5 This Court previously adopted a similar rule in Marshall v. State, 2010 OK CR 8, ¶ 30, 232 P.3d 467, 475, to wit: While Rules of Evidence cannot trump the Sixth Amendment, Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, Melendez-Diaz does not do away with 12 O.S.2001, § 2703. ([A]s a matter of expert opinion testimony, a physician’s reliance on reports prepared by other medical professionals is plainly justified in light of the custom and practice of the medical profession. Doctors routinely rely on observations reported by other doctors ... and it is unrealistic to expect a physician, as a condition precedent to offering opinion testimony to have performed every test, procedure, and examination himself). Avila, 912 N.E.2d at 1028-1029. However, § 2703 must be read in conjunction with the Confrontation Clause. This requires the expert witness testimony must be confined to his or her own opinions and the expert must be available for cross-examination. The majority fails to explain why this analysis is not used in the present case. Appellate courts should be clear and consistent in establishing guidelines for the judges of the District Court. Hampton v. State, 2009 OK CR 4, ¶ 1, 203 P.3d 179, 189 (Lumpkin, J., concurring in part/dissenting in part). ¶6 In Marshall, we were presented with the situation where an expert witness was simply a conduit to gain admission of a non-testifying expert’s report and the conclusions therein. Id., 2010 OK CR 8, ¶ 29, 232 P.3d at 475. The expert testified solely to the findings of the non-testifying expert’s report, he was repeatedly asked about the non-testifying expert’s findings, answered those questions by reading from the non-testifying expert’s report, and did not offer his own opinions concerning the findings. Id. We determined that allowing the expert to testify to the findings contained in the non-testifying expert’s report violated the Confrontation Clause. Id., 2010 OK CR 8, ¶ 31, 232 P.3d at 475-76. ¶7 The circumstances in Marshall must be distinguished from the instance where an expert testifies to his or her own opinions. When an expert testifies to his or her own opin-
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ions, then evidence may also be offered as the basis of the expert’s opinion. Crawford and its progeny are not applicable to evidence offered as the basis of an expert’s opinion because such evidence is not offered for the truth of the matter asserted. “Crawford does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Andrew v. State, 2007 OK CR 23, ¶ 31, 164 P.3d 176, 189; citing Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. at 1369 n. 9, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 2081-82, 85 L.Ed.2d 425 (1985). Evidence offered as the basis of an expert’s opinion is not being offered for the truth of the matter asserted. Lewis v. State, 1998 OK CR 24, ¶ 22, 970 P.2d 1158, 1167-68. “[A] limiting instruction clarifying that the evidence can only be used to evaluate the credibility of the testifying expert’s opinion is required.” Id., citing Ake v. State, 1989 OK CR 30, 778 P.2d 460, 467; see also OUJI-CR(2d) 9-42A (Supp.2000). ¶8 An expert witness may properly testify to his or her own conclusions based on the testing of other professionals if reasonably relied upon by experts in the field. Marshall, 2010 OK CR 8, ¶ 30, 232 P.3d at 475-76; 12 O.S.Supp.2002, § 2703. The Oklahoma Evidence Code places few restrictions on the information an expert may rely upon to form his or her opinions. In referring to such information, 12 O.S.1991, § 2703 specifically provides that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” Accordingly, under section 2703 an expert may rely upon information considered to be hearsay if this information is of a type reasonably relied upon by experts in forming their opinions. The Code also provides, “[t]he expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may be required to disclose the underlying facts or data on cross-examination.” 12 O.S.1991, § 2705. Appellant argues that section 2705 provides no statutory authority for revealing to the jury the reasons underlying Dr. Call’s opinion. While section 2705 only mandates that this information be divulged to the jury if required by the judge or on cross-examination, it does not preclude the Vol. 81 — No. 28 — 10/16/2010
admission of such absent the trial court’s request or on direct examination. Lewis, 1998 OK CR 24, ¶ 19, 970 P.2d at 1166-67. In Lewis, we found that it was permissible for a psychologist to rely, in part, upon hospital records and information given to him by a physician, while forming his opinion of the defendant’s mental state. Id., 1998 OK CR 24, ¶ 20, 970 P.2d at 1167. Likewise, we have found that a discharge summary from Eastern State Hospital and an unsigned psychological evaluation which the expert reasonably relied upon in arriving at her opinion were properly admitted into evidence. Humprhreys v. State, 1997 OK CR 59, ¶¶ 26-28, 947 P.2d 565, 575. It is permissible for an expert to rely on professional studies of which the expert is aware. Revilla v. State, 1994 OK CR 24, ¶ 21, 877 P.2d 1143, 1150-51. A medical expert may reasonably rely upon the diagnoses of other medical professionals in forming his opinion. Ake, 1989 OK CR 30, ¶¶ 30-31, 778 P.2d at 467. Again, the purpose of evidence of the basis of the opinion is solely to permit the jury to determine the credibility of the expert’s opinion. Id., 1989 OK CR 30, ¶ 31, 778 P.2d at 467. ¶9 Thus, the testifying expert need not go back and perform the non-testifying expert’s examination, testing and analysis if other professionals in the field would reasonably rely upon the non-testifying expert’s examination, testing and analysis. Instead, the testifying expert may arrive at his own analysis and conclusions reasonably based upon the work of the non-testifying expert. ¶10 Such a conclusion is consistent with the United States Supreme Court’s conclusion in Melendez-Diaz that “we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Melendez-Diaz, 129 S. Ct. at 2532 n. 1. ¶11 The present case illustrates the necessity of application of the conduit test. Dr. Gofton reasonably relied upon the photographs taken of Fisher, Dr. Jordan’s findings, diagrams and report in forming his own opinions. Dr. Gofton testified as to his own opinion regarding the timing, severity and survivability of the different wounds; the manner, cause, and mechanism of death; the amount of blood where Fisher was discovered; and the probability that Fisher remained conscious after the second gunshot wound. Within this testimony Dr. Gof-
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ton often referenced Dr. Jordan’s findings and his diagrams as a basis for his opinions. These opinions and the evidence introduced as the basis for them were properly admitted and did not violate the Confrontation Clause. Dr. Gofton was subject to cross examination and the basis for his opinions was not introduced for the truth of the matter asserted but solely to permit the jury to determine the credibility of the expert’s opinion. Ake, 1989 OK CR 30, ¶ 31, 778 P.2d at 467. ¶12 However, a fair amount of Dr. Gofton’s testimony consisted of his parroting the report of Dr. Jordan. Dr. Gofton did not give his own opinion but merely testified as to Dr. Jordan’s findings or conclusions. This evidence was not presented as the basis for any of Dr. Gofton’s opinions. It was admitted to prove the truth of the matter asserted and did not weigh on the credibility of Dr. Gofton’s opinions. This type of conduit testimony is improper and violated Appellant’s right to Confrontation. ¶13 I agree with the majority that the Confrontation Clause violation is harmless beyond a reasonable doubt. Marshall, 2010 OK CR 8, ¶ 31, 232 P.3d at 476. Those portions of Dr. Gofton’s testimony where he was simply a conduit for Dr. Jordan’s report and conclusions were not that important to the prosecution’s case, the testimony was cumulative of other evidence in the case, the conduit testimony was corroborated by other evidence at trial, and the great weight of the evidence supported the jury’s determination of both guilt and that Fisher consciously suffered before her death. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). ¶14 As to Proposition VIII, this Court has previously approved the “struck juror” method for seating a jury in a criminal case. Jones v. State, 2006 OK CR 5, ¶¶ 7-8, 128 P.3d 521, 533.
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¶15 As to Proposition XI, I further note that this Court conducts a mandatory sentence review in every case where a sentence of death was imposed that encompasses the very circumstances that Appellant alleges. 21 O.S.2001, § 701.13. As discussed in the mandatory sentence review, Appellant’s sentence was not imposed under the influence of any arbitrary factor, passion or prejudice. ¶16 As to Proposition XV, I disagree with the majority’s assumption that Dr. Gofton’s testimony as to the length of time Fisher may have remained conscious was improperly admitted. Appellant complains that Dr. Gofton’s opinion as to the length of time Fisher may have remained conscious was different than that described by Dr. Jordan in his report. Within this claim Appellant concedes that Dr. Gofton rendered his own opinion and was not simply a conduit for Dr. Jordan’s report. As such, the testimony was proper and did not violate the Confrontation Clause. Marshall, 2010 OK CR 8, ¶¶ 29-30, 232 P.3d at 475-76. ¶17 As to Proposition XVI, the opinion goes through a plain error analysis without ever naming it or citing such authority. Appellant’s failure to make an offer of proof of the testimony that he wanted to present beyond that authorized by the pre-trial ruling waives all but plain error. Simpson v. State, 1994 OK CR 40, ¶¶ 10-11, 876 P.2d 690, 694-95; 12 O.S.2001, § 2104(A)2) (“If the ruling is one excluding evidence, the substance of the evidence was made known to the judge by offer or was apparent from the context within which questions were asked.”). I agree that plain error did not occur. ¶18 As to Proposition XIX, subsection H, this Court has previously rejected claims that Oklahoma’s lethal injection protocol violates the Eighth Amendment prohibition against cruel and unusual punishment. Malicoat v. State, 2006 OK CR 25, ¶¶ 2-11, 137 P.3d 1234, 1235-39.
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Mark Your Calendar and Register Today
Annual Criminal Law Section Luncheon Crowne Plaza Hotel, Tulsa, Oklahoma Wednesday, November 17, 2010
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ewly appointed Judge Clancy Smith of the Oklahoma Court of Criminal Appeals has graciously accepted our invitation to deliver the keynote address for the Annual Luncheon and Professional Advocate Awards Presentation of the Criminal Law Section of the Oklahoma Bar Association, to be held in the Crowne Plaza Hotel on Wednesday, November 17, 2010, during the OBA Annual Meeting. Judge Smith served as a Tulsa County Special Judge for 11 years and as District Judge for 5 years prior to her appointment by Chief Justice James Edmondson, and took the Court of Criminal appeals bench in early September. Please join us in welcoming Judge Smith to the Oklahoma Court of Criminal Appeals. A gourmet plated luncheon will be served. The luncheon is open to all OBA members, whether or not members of the Section. PLEASE register on or before November 12, 2010 if possible, so that we may ensure adequate luncheon plates are provided. However, walk-in registration is accepted at no extra cost.
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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Tuesday, September 28, 2010 PCD-2010-161 — Clarence Rozell Goode, Jr., was charged, conjointly with Ronald Dwayne Thompson and Kenneth Dominick Johnson, with three counts of first degree murder, with alternative theories of malice or felony murder, in violation of 21 O.S.Supp.2004, § 701.7(A) and (B), and one count of first degree burglary, in violation of 21 O.S.2001, § 1431, in Tulsa County District Court case number CF-2005-3904. The State filed a Bill of Particulars alleging two aggravating circumstances for each of the three murder offenses: (1) the defendant knowingly created a great risk of death to more than one person; and (2) there exists a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society for each of the three murder offenses. 21 O.S.2001, § 701.12 (2) and (7). Goode’s case was severed from his codefendants, and his trial commenced on December 3, 2007, before the Honorable Tom C. Gillert, District Judge. The jury found Goode guilty on all four counts and assessed punishment at death on each of the three first degree murder convictions, after finding that both of the aggravating circumstances existed in each murder. The jury assessed twenty (20) years imprisonment and a $10,000 fine on the first degree burglary count. Judge Gillert formally sentenced Goode in accordance with the jury verdict on January 7, 2008. Thereafter, Goode filed a direct appeal of his convictions and sentences, which were affirmed by this Court in Goode v. State, 2010 OK CR 10, ___ P.3d ___, 2010 WL 2698281. Goode’s original application for post-conviction relief was denied by unpublished Opinion on September 7, 2010. Goode is now before this Court with a subsequent application for postconviction relief and a motion for an evidentiary hearing. We conclude that he is not entitled to relief. Accordingly, Goode’s Subsequent Application for Post-Conviction Relief is DENIED, and the motion for an evidentiary hearing is also DENIED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs. 2352
Wednesday, September 29, 2010 S-2009-1057 — Appellee, William B. Sheppard, was charged by Information November 7, 2008, in the District Court of Oklahoma County, Case No. CF-2008-6681, with Possession of a Controlled Dangerous Substance (Cocaine Base). The Honorable Tammy Bass-Lesure, District Judge, ordered the State’s evidence suppressed at a pre-trial hearing. The State appeals this order pursuant to 22 O.S.Supp.2009, § 1053(5). The order of the District Court of Oklahoma County suppressing the State’s evidence and dismissing the Information is REVERSED. The matter is REMANDED for further proceedings consistent with this Opinion. Opinion by: C. Johnson, P.J.: dissent; A. Johnson, V.P.J.: concur; Lewis, J.: dissent; Smith, J: concur. RE-2009-527 — Boyd Ray Bates, Appellant, appeals from the revocation of his seven year suspended sentence in Case Nos. CF-2003-75, in the District Court of Caddo County. The District Court found Appellant had violated rules and conditions of his probation, and on May 29, 2009, revoked his suspended sentences. The order of the District Court of Caddo County revoking Boyd Ray Bates’ suspended sentence in CF-2003-75 is AFFIRMED. Opinion by: Smith, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur. Thursday, September 30, 2010 F-2009-582 — Roderick Delvon Lafayette, Appellant, was tried by jury and convicted of two counts of lewd molestation in violation of 21 O.S.Supp.2007, § 1123(A)(2), in Tulsa County District Court case number CF-2008-2444, before the Honorable Thomas Gillert, District Judge. The jury set punishment at thirty-five years (35) and twenty-five (25) years imprisonment respectively, with $5000.00 fines in each count. The trial court sentenced Lafayette in accordance with the jury verdict, ordering that the sentences be served concurrently. From this judgment and sentence, Roderick Delvon Lafayette has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., concurs; A. Johnson, V.P.J., concurs in results; Lumpkin, J., concurs; Smith, J., concurs.
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RE-2009-151 — In the District Court of Garfield County, Robert Edward Julian, Appellant, entered a plea of guilty in Case No. CF-2007-468 to Assault and Battery upon a Police Officer and on August 15, 2007, the Honorable Dennis Hladik, District Judge, sentenced Appellant to two (2) years imprisonment. In Case No. CF2007-781, Appellant entered a plea of guilty to Possession of Controlled Substance (Marijuana), a Subsequent Offense, and on May 19, 2008, Judge Hladik sentenced Appellant to five (5) years imprisonment. In imposing these sentences and pursuant to plea agreements, Judge Hladik, ordered execution of the terms of imprisonment suspended on written conditions of probation. On February 13, 2009, Judge Hladik found Appellant had violated his probation, revoked both of the suspension orders in full, and directed that the sentences be served consecutively. Appellant appeals the final order of revocation. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J.: Concurs; Lumpkin, J.: Concurs in Results; Lewis, J.: Concurs; Smith, J.: Concurs. F-2009-219 — Appellant, Sheila Ann Devereux, was charged conjointly with Earnest Allen Butler with Trafficking in Illegal Drugs (cocaine base) in violation of 63 O.S.Supp.2004, § 415, and Unlawful Possession of Paraphernalia in violation of 63 O.S.Supp.2004, § 405(B), in the District Court of Tulsa County, case number CF2005-373. A jury trial was held before the Honorable P. Thomas Thornbrugh, District Judge. The jury found Devereux guilty on both counts, and, during the second stage, found that Devereux had two prior felony drug convictions. The jury sentenced Devereux to life without the possibility of parole and a $25,000 fine on Trafficking and one (1) year in the county jail on the paraphernalia charge. Judge Thornbrugh sentenced Devereux in accordance with the jury verdict. From the Judgment and Sentence Devereux has perfected her appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., concurs in results; A. Johnson, V.P.J., concurs in results; Lumpkin, J., concurs; Smith, J., concurs. Friday, October 1, 2010 C-2009-1207 — Tyler Blaine Jones, Petitioner, entered guilty pleas to the crimes of Count 1: Possession of Methamphetamine with Intent to Distribute; and to the misdemeanor paraphernalia charge in Count 3. As part of the plea agreement, Petitioner was transferred to Drug Court. On successful completion of the Drug Court program, Petitioner would receive an Vol. 81 — No. 28 — 10/16/2010
eight-year suspended sentence on Count 1. If he failed the program, he would be sentenced to fifteen years in prison. The State filed an Application to Terminate Drug Court Participation and Sentence Defendant. After a hearing, the Honorable Charles L. Goodwin, District Judge, granted the application, and Petitioner was sentenced to 15 years imprisonment and a $2500.00 fine on Count 1, and a $250.00 fine on Count 3. Petitioner filed an application to withdraw his original guilty plea. At the hearing Judge Goodwin denied that request. This appeal followed. The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the trial court is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs; Lewis, J., Concurs; Smith, J., Concurs. Thursday, October 7, 2010 F-2009-1015 — Appellant Scott Allen Black was tried by jury and convicted of First Degree Arson (21 O.S.2001, § 1401), Case No. CF-200915, in the District Court of Jefferson County. The jury recommended as punishment imprisonment for twenty (20) years and a $25,000 fine. 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; Lewis, J., concur; Smith, C., concur. Friday, October 8, 2010 F-2009-177— Jesse James Stout, Appellant, was tried by jury and found guilty Counts 1 through 8, sexual abuse of a child, in violation of 10 O.S.Supp.2006 § 7115; and Counts 9 through 11, exhibition of obscene materials to a minor child, in violation of 21 O.S.Supp.2006 § 1123(A)(5)(d), in the District Court of Oklahoma County, Case No. CF-2006-7200. The jury sentenced Appellant to forty-three (43) years imprisonment on Count 1 and 2; forty (40) years imprisonment on Count 3, 4, 5, and 6; thirty (30 years imprisonment on Count 7 and 8; and fifteen (15) years imprisonment on Count 9, 10, and 11. The Honorable Virgil Black, District Judge, imposed judgment and sentence accordingly. Judge Black ordered sentences ran consecutively. The trial court sentenced accordingly. From this judgment and sentence, Jesse James Stout has perfected his appeal. The judgment and sentence of the District Court of Oklahoma in Counts 1 through 8 is AFFIRMED. Counts 9, 10, and 11 are REVERSED and REMANDED for a new trial. Opinion by Lewis,
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J.; C. Johnson, P.J., concurs; A. Johnson, V.P.J., concurs in results; Lumpkin, J., concurs in part/dissents in part. COURT OF CIVIL APPEALS (Division No. 1) Friday, October 1, 2010 107,838 — In the Matter of the Adoption of L.D.B., Chad Gottfried, Appellant, vs. Crisis Pregnancy Outreach, Inc., Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jesse S. Harris, Trial Judge. Appeal of an order granting a petition by Appellee Crisis Pregnancy Outreach, Inc. pursuant to 10 O.S.2001 § 7505-2.1 to terminate Appellant’s parental rights to L.D.B. and to allow adoption of the child without his consent pursuant to grounds stated in 10 O.S.2001 § 7505-4.2. HELD: The trial court’s order finding Appellant Father failed to provide the child’s mother with support during her pregnancy, had not proven his defenses, and the child was eligible for adoption without his consent is AFFIRMED. Having so concluded, additional issues relating to the adoption of the child in Arkansas need not be addressed. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 108,109 — Association of Catoosa Classroom Teachers, Plaintiff/Appellee, vs. Independent School Dist. No. I-002 of Rogers County, Oklahoma a/k/a Catoosa Public Schools, Defendant/Appellant. Appeal from the District Court of Rogers County, Oklahoma. Honorable Sheila A. Condren, Judge. On June 18, 2009, Plaintiff/Appellee Association of Catoosa Classroom Teachers filed an action for declaratory relief and specific performance to resolve a dispute arising from the interpretation of a contractual provision with respect to unused personal business leave being rolled over into a teacher’s sick leave. Classroom Teachers were granted three personal business leave days per year and by contract, unused personal business leave days could be rolled over to the teacher’s sick leave account. Teachers with at least 20 years of service had all three days paid, but teachers who had fewer years of service only had one of the personal days paid by the Board. Classroom Teachers asserted in its Motion for Summary Judgment that any of the three unused personal business leave days could be rolled over into sick leave, but Defendant/Appellant Independent School District No. I-002 of Rogers County, Oklahoma, a/k/a Catoosa Public Schools argued that only teach2354
ers with greater than 20 years’ service, those qualifying for three days paid personal business days, could roll the unused personal business days over to paid sick leave. The district court held in favor of Classroom Teachers and granted summary judgment in its favor. We AFFIRM. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur. 108,168 — City of Shawnee (Own Risk #13289), Petitioner, vs. Mike Bertram and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation Court. City of Shawnee seeks review of an order of a Workers’ Compensation Court trial judge, affirmed by a three-judge panel, which found, in relevant part, that Claimant Mike Bertram sustained a compensable injury to both hands and awarded him benefits for permanent partial disability attributable to a 30% disability to the right hand and 22% disability to the left hand. The order is supported by competent evidence and is sustained. SUSTAINED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. Wednesday, October 6, 2010 107,611 — Joseph Quigley, Plaintiff/Appellee, vs. Independent School District 89 of Oklahoma County, Oklahoma a/k/a Oklahoma City Public Schools, Defendant/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara G. Swinton, Trial Judge. Defendant/Appellant, Independent School District No. 89 of Oklahoma County, Oklahoma (District), seeks review of the trial court’s judgment in favor of Plaintiff/Appellee, Joseph Quigley (Teacher), in Teacher’s action for trial de novo on the grounds for his employment termination pursuant to the Teacher Due Process Act of 1990 (Act), 70 O.S.2001 §§6-101.20 to 6-101.31. We AFFIRM, holding the Act is constitutional, the trial court properly applied the Act, and its order is supported by competent evidence. Teacher’s motion for appeal-related attorney fees pursuant to 70 O.S.2001 §6-1-1.27(D) is granted and REMANDED for determination of the amount of attorney fees pursuant to Burk v. City of Okla. City, 1979 OK 115, 598 P.2d 659. AFFIRMED AND REMANDED. Opinion by Hansen, J.; Buettner, P.J., concurs, and Hetherington, J., concurs in result. 107,853 — Cynthia Ann Hawkinson, Plaintiff/Appellant, vs. Russell Eugene Leggett, Lee
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Var, Inc., d/b/a Palmer of Texas, High Plains Pilot Car, Inc., Michael D. Stout, Anna Stout, John Doe, Defendants/Appellees. Appeal from the District Court of Johnston County, Oklahoma. Honorable Robert M. Highsmith, Trial Judge. Appeal of trial court granting dismissal of case and denying request to vacate the dismissal based upon attorney neglect. HELD: The procedural history of the case and plaintiff’s counsel’s neglect warranted dismissal without prejudice to refiling under 12 O.S. 1991 § 1031.1, and was not an abuse of discretion. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 108,338 — City of Midwest City (Own Risk #13308), Petitioner, vs. James Mukes and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation Court. City of Midwest City (Employer) seeks review of an order of a Workers’ Compensation trial court, affirmed by a three-judge panel, which found James Mukes sustained a compensable injury to his left knee, authorized surgery, and awarded him temporary total disability benefits. Employer has not demonstrated the trial court’s order is contrary to law or unsupported by any competent evidence. The order is SUSTAINED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur. 108,376 — Shari Lynn Sikes, Plaintiff/Appellant, vs. Bayer Pharmaceuticals Corp. and Bayer Corporation, Defendant/Appellees, and Dr. Keith Underhill, Defendant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Twyla Mason Gray, Trial Judge. Plaintiff/Appellant, Shari Lynn Sikes, seeks review of the trial court’s order denying her motion for new trial or to reconsider its order granting the motion for summary judgment of Defendant/Appellees, Bayer Pharmaceuticals Corp. and Bayer Corp. (collectively Bayer), in Sikes’ action for product liability. We affirm because Sikes failed to submit any evidence showing the product was the cause of her injury. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. 108,409 — May’s Housecall Home Health Care and American Home Assurance, Petitioners, vs. Gayla J. Young and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court. Petitioners (Employer) seek review of the decision of the three-judge panel of the Workers’ CompensaVol. 81 — No. 28 — 10/16/2010
tion Court affirming the trial court’s order which found Respondent (Claimant) had sustained a change of condition for the worse and authorized medical treatment. We sustain the order because it is supported by competent evidence. SUSTAINED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur. (Division No. 2) Monday, September 20, 2010 108,024 — Cassidy Jane Sholer, Plaintiff/ Appellant, v. ERC Management Group, LLC, ERC Properties, Inc., and Edmond Housing Associates, III, Limited Partnership d/b/a Crownridge Apartments. Appeal from an order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge, granting summary judgment in favor of Defendants. While visiting friends at an apartment complex owned and/or managed by Defendants, Plaintiff dived into the complex’s swimming pool and hit her head on the bottom of pool. Plaintiff alleged Defendants were negligent in failing to maintain the pool in a reasonably safe manner. After reviewing the parties’ evidentiary materials, we find undisputed proof of the open and obvious condition of the pool at the time of the incident. Plaintiff dived into the pool without knowing the depth of the water. The danger of diving into a pool without knowing the depth of the water is an open and obvious danger which should have been apparent to Plaintiff in the exercise of ordinary care and was in fact known to her. The condition of the pool did not constitute a hidden danger. The trial court correctly concluded as a matter of law that Plaintiff failed to show a breach of duty by Defendants. We further find that the trial court’s denial of Plaintiff’s motion to strike Defendants’ motion for summary judgment was not an abuse of discretion. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur. Friday, September 24, 2010 106,718 — In re the Marriage of: R. Susan Tronnier, Petitioner/Appellee, vs. Bill F. Tronnier, Respondent/Appellant. Appeal from the District Court of Tulsa County, Hon. Kyle B. Haskins, Trial Judge. Wife appeals the distribution of property awarded by the district court in the couple’s divorce Decree. Husband appeals the award of support alimony to Wife. The district court did not abuse its discretion in setting Wife’s support alimony. Further, the
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district court did not abuse its discretion in denying Wife’s motion to reconsider the property distribution in the December 2008 Decree. AFFIRMED. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. Tuesday, September 28, 2010 107,395 — Darrell D. Wright, Plaintiff/Appellant, v. Shannon Dean Reasor, Defendant/ Appellee. Appeal from an order of the District Court of Atoka County, Hon. Danita G. Williams, Trial Judge. Plaintiff appeals the trial court’s order which granted defendant’s motion for attorney fees. Defendant’s motion for attorney fees was filed after the trial court granted defendant’s motion for a mistrial. Based on our review of the record on appeal and applicable law, we reverse the trial court’s order to the extent that it granted defendant’s motion for attorney fees. We neither address nor rule upon any other portion of the trial court’s order. REVERSED. Opinion from Court of Civil Appeals, Division II, by BARNES, J.; WISEMAN, C.J., concurs, and FISCHER, P.J., dissents. Thursday, September 30, 2010 106,928 — Robert N. Goss, Jr. and Barbara A. Goss, husband and wife; Michael D. Johnston and Kay M. Johnston, husband and wife; and James S. Beck, Trustee of The Beck Family Trust Dated The 19th Day of August, 1986, Plaintiffs/Appellees/Counter-Appellants, vs. Rosemary Sue Mitchell, Defendant/Appellant/ Counter-Appellee. Appeal from the District Court of Delaware County, Hon. J. Dwayne Steidley, Trial Judge, awarding prevailing party attorney fees to Plaintiffs in an action concerning access to a swimming dock in a lake cove. We affirm the district court’s order granting Plaintiffs’ Motion for Attorney Fees and Costs on the issue of entitlement. We affirm the award of costs to Plaintiffs as to amount, because Mitchell has not challenged the amount of costs awarded by the district court. We reverse the attorney fees award as to amount and remand this case for further proceedings to determine the appropriate amount of attorney fees to which Plaintiffs are entitled consistent with the pronouncements in Burk and in this Opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. 2356
Friday, October 1, 2010 107,997 — Braum’s Ice Cream & Dairy Stores, and WHB Co. Inc. dba Braum’s (Own Risk #13610), Petitioner, v. Vanessa D. Frye, and the Workers’ Compensation Court, Respondents. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court, Hon. Tom Leonard, Trial Judge, modifying in part the previous decision of the Workers’ Compensation Court en banc. On August 1, 2005, Claimant suffered injury when three bundles of sacks weighing approximately 50 pounds each fell on her hand. Claimant filed her Form 3 on November 2, 2005, alleging a single-event injury to her left hand, which Employer admitted. On November 8, 2007, Claimant filed a second Amended Form 3 in which she alleged a cumulative trauma injury. Employer denied that Claimant sustained a cumulative trauma injury and asserted a statute of limitations defense because Claimant’s second Amended Form 3 was filed over two years after her date of last exposure. The trial court awarded Claimant TTD benefits and ordered Employer to provide Claimant with medical treatment. With the exception of vacating one paragraph from the trial court’s order, the three judge panel affirmed the trial court’s order and also denied Employer’s statute of limitations defense. The Court of Civil Appeals Division IV sustained the finding that Claimant experienced a single-event accidental personal injury to her left hand, but vacated the remainder of the three-judge panel’s order for lack of a judicially reviewable order. On remand, the second three-judge panel found the statute of limitations for Claimant’s cumulative trauma injury was tolled by Employer’s provision of medical treatment by Dr. GarciaMoral. We find the three-judge panel correctly concluded that the authorized medical treatment provided by Dr. Garcia-Moral tolled the statute of limitations. Claimant filed her Amended Form 3 within two years of that treatment and therefore her claim was not barred by the statute of limitations. We likewise disagree with Employer’s claim that there is no medical or lay testimony to support a finding of cumulative injury. Claimant provided evidence that she performed repetitive activities for three-and-a-half years. Dr. GarciaMoral testified that such activities could cause carpal tunnel syndrome and that Claimant in fact suffered from carpal tunnel syndrome. SUSTAINED. Opinion from the Court of Civil
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Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and BARNES, J., concur. Thursday, October 7, 2010 108,045 — James Temple, Plaintiff/Appellant, vs. Spiritbank, Defendant/Appellee. Appeal from Order of the District Court of Tulsa County, Hon. Jefferson D. Sellers, Trial Judge, granting summary judgment in favor of the owner of a commercial building. Temple, an independent contractor, worked as a roof repair estimator. He went to an EZPawn location to examine the business’s sheet metal roof. While examining the roof, he fell through a skylight and was injured. Temple alleged that, as the owner of the EZPawn premises, Spiritbank had breached its duty to keep the premises reasonably safe from hidden dangers. The district court granted summary judgment against Temple on the grounds of “open and obvious condition.” Temple was an invitee. See McKinney v. Harrington, 1993 OK 88, ¶ 8, 855 P.2d 602, 604. Although Temple was familiar with sheet metal roofs and the fact that fiberglass panels were often installed on those roofs for lighting, the evidentiary materials do not establish that he was aware of any skylights on this particular roof. Temple testified that he did not notice the fiberglass skylight as he walked on the roof because it was “painted over.” Photographs in the record show that the fiberglass covering the skylight was difficult to distinguish from the rest of the roof. Reasonable minds could differ on the issue of whether the fiberglass-covered skylight presented an apparent and obvious hazard, or whether the weathered condition of the sheet metal roof and paint on the skylight obscured visibility of the skylight’s location on the roof and created a condition that had a “deceptively innocent appearance.” Brown v. Nicholson, 1997 OK 32, ¶ 12, 935 P.2d 319, 323. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur. 107,938 — Larry Dobbins and Dobbins Ranch, LLC, Plaintiffs/Appellants, v. William Buckles and The Central National Bank of Alva, Defendants/Appellees. Appeal from an order of the District Court of Woods County, Hon. Ray Dean Linder, Trial Judge, granting summary judgment in favor of Defendants Central National Bank of Alva and its former president, William Buckles. Plaintiffs Larry Dobbins and Dobbins Ranch, LLC, filed a second amended petition alleging a slander claim Vol. 81 — No. 28 — 10/16/2010
against Buckles and claims by Dobbins Ranch against both Defendants for tortious interference with a business relationship or contract and intentional interference with prospective economic advantage. Defendants filed a motion for summary judgment which was granted. We find issues of material fact remain in dispute regarding Plaintiffs’ slander claim. Reasonable minds could differ on whether Buckles’ statements constitute slander as defined by 12 O.S.2001 § 1442. Some of these same issues of fact are crucial in determining whether Dobbins Ranch prevails on its claims for intentional interference with contract and intentional interference with prospective economic advantage. We therefore reverse the decision of the trial court and remand for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Barnes, J., and Goodman, J. (sitting by designation), concur. (Division No. 3) Friday, September 17, 2010 107,005 — Michel Eisenhour, Plaintiff/Appellant, vs. Daynelle Marie Dedmond, M.D., Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Bryan C. Dixon, Judge. Plaintiff seeks review of the trial court’s order denying her motion for new trial after entry of a judgment on a jury verdict for Defendant, challenging the jury instructions and argument by opposing counsel as affected by fundamental error. The trial court instructed on the measure of damages for aggravations of pre-existing conditions in precise accord with OUJI – Civil 2d, No. 4.10. The instruction is a correct statement of the law and is not fundamentally flawed. As the issue is presented, however, Plaintiff complains that, during closing argument to the jury, opposing counsel misstated the law concerning the measure of damages for the aggravation of preexisting conditions, and the misstatement, uncorrected by the trial court, affected the verdict. Counsel for both parties commented on the issue of damages for the aggravation of a preexisting condition, but the record before us contains none of the evidence presented by the parties on the issue of damages. Under these circumstances, we simply cannot say with any certainty that the closing remarks of Defendant’s counsel resulted in actual prejudice or affected the verdict in any way. AFFIRMED. Opinion by
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Joplin, P.J.; Mitchell, J., concurs; Bell, V.C.J., dissents with opinion. Wednesday, September 29, 2010 107,471 — Farm Credit Services of America, Inc., a Nebraska Corporation, Plaintiff/Appellant, vs. Daniel M. Wilson, an individual, and Nancy L. Wilson, an individual, Defendants/ Appellees. Appeal from the District Court of Grant County, Oklahoma. Honorable Ronald G. Franklin, Judge. Plaintiff/Appellant Farm Credit Services of America, Inc., a Nebraska Corporation (Farm Credit), seeks review of the trial court’s order granting the motion for summary judgment of Defendants/Appellees Daniel M. Wilson and Nancy L. Wilson (Defendants), on Farm Credit’s replevin claim. In this accelerated review proceeding, Farm Credit challenges the trial court’s order as contrary to law and the uncontroverted evidence. Defendants were charged with constructive notice of Farm Credit’s pre-existing and superior security interest at the time they purchased the Planter from the Sherwoods. The failure of Farm Credit to refile its security interest in Oklahoma within one year of the Sherwoods’ sale to the Defendants, as provided in 12A O.S. §1-9-316, affected only the priority Farm Credit may have enjoyed over other security interests, and did not completely extinguish Farm Credit’s claim. Because Defendants were charged with constructive notice of Farm Credit’s outstanding and superior security interest at the time they purchased the Planter from the Sherwoods, they acquired the Planter subject to Farm Credit’s security interest. Farm Credit’s claim is superior to Defendants, and the trial court erred in holding otherwise. REVERSED AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. 107,871 — Rex Everett Gilworth, Sr., Plaintiff/Appellant, vs. State of Oklahoma ex rel, Department of Public Safety, Defendant/ Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable James B. Croy, Judge. Appellant (Gilworth) appeals from the district court’s order denying his request to modify the one-year revocation of his driver’s license. Appellee (DPS) revoked Gilworth’s driver’s license because he had a prior conviction within ten years of the arrest giving rise to the most recent conviction for driving under the influence of alcohol (DUI). Gilworth’s need for a driver’s license is trumped by his extensive history of traffic violations. The trial court did not abuse its discretion when it 2358
denied Gilworth’s request to modify the revocation of his driver’s license. The judgment of the trial court is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. Friday, October 8, 2010 106,662 — Marvin Billy Jack Manns, II, Petitioner/Appellant, vs. Nicole Marie Rego, Respondent/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Carl Funderburk, Judge. Petitioner seeks review of the trial court’s order denying his application of hearing and request to assume jurisdiction in his paternity action with Respondent. In this appeal, Petitioner challenges the trial court’s determination of its lack of jurisdiction. In the present case, Petitioner requested an expedited determination of Oklahoma jurisdiction to adjudicate his paternity. However, before the trial court could undertake that determination, Petitioner and Respondent entered into an agreed-to order in the Massachusetts action, by which Petitioner confessed that the Massachusetts’ court possessed home state jurisdiction to make an initial custody determination of the parties’ minor child. The Massachusetts’ court determined its own subject matter jurisdiction to make an initial custody determination of the parties’ minor child, and that order, now final, may not be challenged collaterally in this action. Furthermore, Petition has not satisfied the requirements of the Oklahoma Uniform Child Custody Jurisdiction and Enforcement Act, §551-201 and 551-202, for modification of a foreign custody determination. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur. 107,012 — Rodney R. Culp, Petitioner/Appellee, vs. Susan Reichert Culp, Respondent/ Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barry Hafer, Judge. Wife seeks review of the trial court’s order denying her motion to enforce the settlement agreement with Husband, asserting the settlement agreement required Husband to diligently market certain of the parties’ real property for sale. The parties’ agreement clearly contemplates both the sale of the Dourdan Court property and distribution of $100,000 to Wife at the time of the sale. However, the parties’ agreement is entirely silent on when the sale should be affected. In the absence of an express provision dictating sale on the property at some specific time, we hold the trial court did not err in refusing to compel Husband’s sale of the property.
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AFFIRMED. Opinion by Joplin, P.J.; Mitchell, J., concurs; Bell, V.C.J., dissents. 107,176 — Gary K. Fuqua and Moze E. Fuqua, Plaintiffs/Appellants, vs. Coni J. Rakes, a/k/a Coni J. Springer, Defendant/Appellee. Appeal from the District Court of Washington County, Oklahoma. Honorable Russell Vaclaw, Judge. Appellants (Buyers) appeal from the trial court’s order denying their request for attorney fees and costs following their successful action against Appellee (Seller) under the Residential Property Condition Disclosure Act, 60 O.S. 2001 §831 et seq. Buyers recovered only partial damages for the cost to repair the drainage problem. Seller was victorious on her defense against Buyers’ claim for foundation repairs. Even though Seller prevailed on her defense against the claim for foundation damages and the fraud claim, for which counsel fees are not recoverable, she possessed no affirmative judgment in her favor. Buyers were the only parties entitled to the status as “prevailing parties” under the facts of this case. Pursuant to §837(D), Buyers, as the prevailing parties, were entitled to an award of reasonable attorney fees and costs. REVERSED AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concurs. 107,772 — Stephen Burnett, Plaintiff/Appellant, vs. John Middleton, Joseph Taylor, Harvey Fields, Linda Jester and Sgt. Hickman, Defendants/Appellees. Appellant is an inmate in the custody of the Department of Corrections (DOC), and is incarcerated at the Cimarron Correctional Facility (CCF). He appeals from the trial court’s order dismissing his petition against Appellees, who are CCF employees. In early May 2009, Appellant was charged with and found guilty of disciplinary misconduct. His security classification was dropped to Level 1 for 60 days and he was ordered to forfeit 90 earned credit days. The hearing officer’s findings were affirmed by both the warden and DOC. Appellant’s misconduct charge — bartering — emanated from his assistance of another inmate with a legal matter. Plaintiff admitted he helped the other inmate and evidence given by two witnesses corroborated the bartering charge. Appellant was afforded his due process. Moreover, as an inmate sentenced to life imprisonment, Appellant does not qualify for earned credits, so the disciplinary ruling cost him none. Appellant has no protected liberty interest in his security classification. We specifically reject Appellant’s claims that the Vol. 81 — No. 28 — 10/16/2010
trial court wrongfully (1) denied his motion to attend a hearing, (2) denied his request for a court reporter to transcribe the proceedings of that hearing and (3) conducted the hearing ex parte. The record plainly reflects no evidentiary hearing was conducted and the trial court’s decision was based solely on the pleadings filed by the parties. AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur. (Division No. 4) Wednesday, September 29, 2010 107,026 — Ann Beard Douglas, Personal Representative Of the Estate of Ruth H. Beard, Deceased, and Ann Beard Douglas, individually, Plaintiffs/Appellants/Counter-Appellees, v. O. Logan Beard, III, Defendant/Appellee/ Counter-Appellant, Nancy Kerr, Interested Party. Appeal from the order of the District Court of Marshall County, Hon. Robert M. Highsmith, Trial Judge. Ann Beard Douglas (Daughter) and O. Logan Beard, III (Son) each appeal the trial court’s orders granting judgment to Son and awarding him an attorney’s fee. Ruth H. Beard (Decedent) owned mineral rights in Marshall County. Over the course of several years, Decedent executed conveyances of oil and gas interests to Son. However, during the last months of her life, she believed the conveyance instruments had been forged and that Son had taken advantage of her and obtained the conveyances by “trickery.” Decedent filed a petition against Son seeking to set aside the conveyances and to recover certain income generated by the conveyed interests. She subsequently died before the trial of her case. After Daughter was appointed personal representative of Decedent’s Estate, she was substituted as a party in Decedent’s suit against Son. Daughter sought to have the conveyances set aside under theories of forgery, fraudulent inducement, and undue influence. We find the record supports the trial court’s conclusion that Daughter did not prove her theories of recovery, and judgment in favor of Son was proper. The amount of an attorney’s fee awarded, following a Burk hearing, is discretionary with the trial court. We find no abuse of discretion. We affirm the orders under review. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. 108,136 — Urology Center of Southern Oklahoma, Petitioner/Appellant, v. Heidi Miller and the Workers’ Compensation Court, Respondents/Appellees. Proceeding to review
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an order of a three-judge panel of the Workers’ Compensation Court, Hon. Cherri Farrar, Trial Judge. Employer Urology Center of Southern Oklahoma seeks review of a three-judge panel’s order affirming a trial court order awarding benefits to Claimant Heidi Miller. Claimant gave Employer two weeks notice of the date on which she would voluntarily terminate her employment. She was injured on the job the day before the final day of employment. After being on temporary total disability, she was released for light duty. However, Employer did not offer her light duty employment because she was no longer an employee. Employer continued to pay temporary total disability benefits and was later denied reimbursement of some of those benefits. Based on our review of the facts and applicable law, we sustain the three-judge panel’s order. SUSTAINED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J; Gabbard, P.J., concurs; Rapp, J., not participating. 107,406 — Jessie Mars, Plaintiff/Appellant, v. Larry Inman, Defendant/Appellee. Appeal from the District Court of Canadian County, Hon. Edward C. Cunningham, Trial Judge. Plaintiff Jessie Mars appeals from the trial court’s July 16, 2009, order denying her motion for a new trial. Plaintiff obtained a default judgment against Defendant Larry Inman. Defendant later sought to vacate the default judgment. The trial court did so, moving Plaintiff to seek a new trial, which was denied, resulting in this appeal. Based on our review of the facts and applicable law, we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. Thursday, September 30, 2010 108,269 — In the Matter of J.D.M., an Alleged Deprived Child. Misty Miller, Appellant, v. State of Oklahoma, Appellee. Appeal from the District Court of Oklahoma County, Hon. Richard W. Kirby, Trial Judge. Misty Miller (Mother) appeals from an order terminating her parental rights in her minor child, JDM, following a jury trial. State sought termination of Mother’s rights pursuant to 10 O.S.2001, § 7006-1.1(A)(5) (now 10A O.S. Supp. 2009, § 1-4-904(B)(5)), alleging Mother had failed to correct the conditions which led to JDM’s deprived status. Based upon our review of the facts and applicable law, we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. 2360
Tuesday, October 5, 2010 106,792 — Debra H. Stolz, Petitioner/Appellee, v. Steven B. Stolz, Respondent/Appellant. Appeal from the District Court of Kingfisher County, Hon. Susie Pritchett, Trial Judge. Steven B. Stolz (Husband) appeals the trial court’s orders denying his motions to reconsider. Husband contends the trial court erred in calculating the parties’ income for purposes of computing child support, dividing the marital assets and debts, including award to Wife of alimony in lieu of property, awarding certain personal property, and modifying the parties’ visitation schedule with the minor children. Based upon our review of the facts and applicable law, we affirm in part, reverse in part, and remand with directions. Opinion from the Court of Civil Appeals, Division, IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating. Wednesday, October 6, 2010 108,211 — Sheron Howard, Petitioner, v. Mid Continent Packaging, Inc., Compsource Oklahoma, and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. Bob Lake Grove, Trial Judge, affirming in part and modifying in part the trial court’s decision denying Claimant’s request for workers’ compensation benefits. Claimant alleges that the three-judge panel erred in affirming the workers’ compensation trial court’s determination that she was not a credible witness and did not sustain a compensable injury. The workers’ compensation trial court is the sole judge of the credibility of a witness and the weight and value to be given the testimony. This Court finds the decision of the three-judge panel is supported by competent evidence. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur. Thursday, October 7, 2010 107,868 — Ronald Clark Walters, individually and Michelle Lynn Walters, individually, and as next friends and on behalf of T.W., their minor son, Plaintiffs/Appellants, v. Edward Nicholas Brannan Digges, M.D., Scooter Digges and Associates, P.C., an Oklahoma for profit professional corporation, and Mercy Health Center, Inc., a domestic not for profit Corporation, Defendants/Appellees. Appeal from an order of the District Court of Oklahoma County, Hon. Daniel L. Owens, Trial Judge. The trial court plaintiffs, Ronald Clark Walters, individually and
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Michelle Lynn Walters, individually and as next friends and on behalf of T.W., their minor son (Walters), appeal an order granting summary judgment to the defendants Edward Nichols Brannan Digges, M.D. (Digges), Scooter Digges and Associates, P.C. (SDA) and Mercy Health Center, Inc. (MHC). Expert testimony is required here as to all Defendants to establish the third foundation fact under 76 O.S.2001, § 21. The Defendants have shown that Plaintiffs have no such evidence. Plaintiffs’ argument that it is unneeded is rejected. Taken in its best light, Plaintiffs’ expert’s opinion, as to the third foundation fact for all Defendants, is based upon conjecture and does not suffice to preclude summary judgment. Moreover, Plaintiffs’ expert’s conclusion that negligence follows because of injury does not establish the third foundation fact because the fact of injury does not prove any act of negligence. Therefore, summary judgment as to all Defendants is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., Goodman, J., concur. ORDERS DENYING REHEARING (Division No. 1) Wednesday, October 6, 2010 108,162 — Reginald B. Scott, Petitioner, vs. Construction Management Specialist, Inc., and/or Willowbrook Construction Co., Inc., Compsource Oklahoma and The Workers’ Compensation Court, Respondents. Petitioner’s Petition for Rehearing filed September 28, 2010 is DENIED.
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(Division No. 3) Friday, October 8, 2010 106,772 — Karen Nelson, Trustee of the Revocable Inter-Vivos Trust of Karen Nelson, Dated May 4, 1989, Plaintiff/Appellant/CounterAppellee, vs. Linn MidContinent Exploration, L.L.C., Defendant/Appellee/Counter-Appellant. Plaintiff/Appellant’s Petition for Rehearing and Brief in Support, filed September 10, 2010, is DENIED. (Division No. 4) Tuesday, September 21, 2010 107,655 — Owens Illinois Inc., and Own Risk #16452, Petitioners, v. John Jacob Kiefrider, and The Workers’ Compensation Court, Respondents. Petitioner’s Petition for Rehearing is hereby DENIED. Tuesday, September 28, 2010 107,397 — State of Oklahoma, Plaintiff/ Appellee, v. Richard Lynn Dopp, Defendant/ Appellent, and Thirty-Three Thousand, Seven Hundred Twenty-Five ($33,725.00) Dollars, et al., Defendants. Appellant’s Petition for Rehearing is hereby DENIED.
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I
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ANNUAL MEETING
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DELEGATE
ALTERNATE
ADAIR ......................... Jeff Jones . . . . . . . . . . . . . . . . . . . . . . . . . . Alfalfa .................... Marcus Jungman . . . . . . . . . . . . . . . . . . . Atoka ........................ Beaver . ..................... Todd Trippet. . . . . . . . . . . . . . . . . . . . . . . Beckham ................. Chip Eeds Jr.. . . . . . . . . . . . . . . . . . . . . . . Blaine ....................... Daniel G. Webber . . . . . . . . . . . . . . . . . . . Bryan . ....................... Pat L. Phelps . . . . . . . . . . . . . . . . . . . . . . . Caddo ....................... Canadian ............... A. Gabriel Bass . . . . . . . . . . . . . . . . . . . . . Suzanne Heggy . . . . . . . . . . . . . . . . . . . . . W. Mark Hixson Nathan D. Richter Carter ...................... Michael C. Mordy . . . . . . . . . . . . . . . . . . Judge Thomas S. Walker . . . . . . . . . . . . . Cherokee ................ N. Cheryl Hamby Jerry S. Moore Choctaw ................. J. Frank Wolf III. . . . . . . . . . . . . . . . . . . . . Cimarron ............... Stanley Ed Manske . . . . . . . . . . . . . . . . . Cleveland ............. Holly R. Iker . . . . . . . . . . . . . . . . . . . . . . . Michael D. Johnson . . . . . . . . . . . . . . . . . Don Pope . . . . . . . . . . . . . . . . . . . . . . . . . Judge Lori M. Walkley. . . . . . . . . . . . . . . Micheal C. Salem. . . . . . . . . . . . . . . . . . . Peggy Stockwell . . . . . . . . . . . . . . . . . . . . Gary A. Rife. . . . . . . . . . . . . . . . . . . . . . . . Sandee Coogan . . . . . . . . . . . . . . . . . . . . . David A. Poarch Jr.. . . . . . . . . . . . . . . . . . Dave Stockwell . . . . . . . . . . . . . . . . . . . . . Henry N. Herbst. . . . . . . . . . . . . . . . . . . . Debra D. Loeffelholz. . . . . . . . . . . . . . . . . Golda R. Long. . . . . . . . . . . . . . . . . . . . . . Judge Stephen W. Bonner . . . . . . . . . . . . Richard D. Stevens . . . . . . . . . . . . . . . . . . Janis Grant-Johnson . . . . . . . . . . . . . . . . . Jan Meadows . . . . . . . . . . . . . . . . . . . . . . Robert L. Pendarvis . . . . . . . . . . . . . . . . . Ben Odom. . . . . . . . . . . . . . . . . . . . . . . . . Coal ........................... Trae Gray . . . . . . . . . . . . . . . . . . . . . . . . . Comanche ............. Nathan M. Johnson . . . . . . . . . . . . . . . . . Irma J. Newburn . . . . . . . . . . . . . . . . . . . Mark R. Stoneman . . . . . . . . . . . . . . . . . Vol. 81 — No. 28 — 10/16/2010
The Oklahoma Bar Journal
Judge Jeff Payton Kyle Hadwiger
Jerry L. Venable Brian Henderson F. Douglas Shirley Matt B. Mickle
Michael D. Denton Jr. Emily J. Hufnagel
Judge Thomas K. Baldwin John S. Veazey
Alan M. Perry Ronald L. Kincannon Judge Michael D. Tupper Blake Virgin Jr. R. Blaine Nice Jr. Craig Sutter James E. Pence Cindee Pichot David E. Ponder John H. Sparks David Swank Richard H. Wall Roger O. Housley Amy Pepper Christal D. Adair Gregory T. Tontz Tyson T. Stanek J.D. Loftis Cheryl Farnsworth Jamie J. McGraw Rebekah C. Taylor Judge D. Clay Mowdy Shon T. Erwin David J. Kanehl Lisa E. Shaw 2363
Cotton...................... Kathleen Flanagan. . . . . . . . . . . . . . . . . . Craig.......................... Leonard M. Logan, IV . . . . . . . . . . . . . . . Creek.......................... Charles D. Watson Jr. . . . . . . . . . . . . . . . . Judge Richard A. Woolery . . . . . . . . . . . Custer........................ Richard J. Phillips . . . . . . . . . . . . . . . . . . Delaware................. Lee Griffin Eberle . . . . . . . . . . . . . . . . . . . Dewey......................... Judge Rick M. Bozarth. . . . . . . . . . . . . . . Ellis ........................... Laurie E. Hays . . . . . . . . . . . . . . . . . . . . . Garfield................... Michael C. Bigheart. . . . . . . . . . . . . . . . . Tim E. DeClerck. . . . . . . . . . . . . . . . . . . . . Douglas L. Jackson. . . . . . . . . . . . . . . . . . Garvin....................... Daniel T. Sprouse . . . . . . . . . . . . . . . . . . Grady......................... Ryland L. Rivas Grant......................... Judge Jack D. Hammontree Jr. . . . . . . . . Greer.......................... Judge Danny R. Deaver. . . . . . . . . . . . . . Harmon ................... Harper....................... Judge G. Wayne Olmstead. . . . . . . . . . . Haskell . .................. Hughes ..................... Robert L. Irby. . . . . . . . . . . . . . . . . . . . . . Jackson..................... John H. Weigel . . . . . . . . . . . . . . . . . . . . . Jefferson.................. Carrie E. Hixon . . . . . . . . . . . . . . . . . . . . . Johnston................. Dustin P. Rowe . . . . . . . . . . . . . . . . . . . . . Kay............................... Brian T. Hermanson . . . . . . . . . . . . . . . . . Rick Johnson . . . . . . . . . . . . . . . . . . . . . . Kingfisher............... E. Edd Pritchett . . . . . . . . . . . . . . . . . . . . . Kiowa ........................ Thomas W. Talley Latimer .................... LeFlore .................... Lincoln..................... Logan ....................... Jeff Hirzel . . . . . . . . . . . . . . . . . . . . . . . . . Love ........................... Kenneth L. Delashaw Jr.. . . . . . . . . . . . . Major ........................ Mitchell A. Hallren . . . . . . . . . . . . . . . . . Marshall ............... Judge Richard A. Miller . . . . . . . . . . . . . Mayes . ....................... Randall Elliott . . . . . . . . . . . . . . . . . . . . . . McClain . ................. Sara L. Bonnell. . . . . . . . . . . . . . . . . . . . . McCurtain ............. Judge Michael D. DeBerry . . . . . . . . . . . McIntosh ................ C. Brendon Bridges . . . . . . . . . . . . . . . . . Murray . ................... Phil S. Hurst . . . . . . . . . . . . . . . . . . . . . . . Muskogee ............... Doris L. Gruntmeir Roy D. Tucker Betty O. Williams Noble ........................ Nowata .................... Okfuskee ................. Jeremy T. Pittman. . . . . . . . . . . . . . . . . . . Oklahoma . ............ Mack K. Martin . . . . . . . . . . . . . . . . . . . . . John B. Heatly . . . . . . . . . . . . . . . . . . . . . Laura H. McConnell-Corbyn. . . . . . . . . Judge Timothy D. DeGiusti . . . . . . . . . . Judge Glenn M. Jones . . . . . . . . . . . . . . . James A. Kirk . . . . . . . . . . . . . . . . . . . . . . Larry M. Spears . . . . . . . . . . . . . . . . . . . . Benjamin J. Butts . . . . . . . . . . . . . . . . . . . 2364
The Oklahoma Bar Journal
Michael C. Flanagan Kent Ryals Laura S. Farris J.V. Frazier Dennis A. Smith Kay Lyn Beauchamp Julie D. Strong Judge Joe L. Jackson Robert R. Faulk Kaleb K. Hennigh Randy J. Long John A. Blake
Steven A. Young Eric G. Yarborough M. Marcus Holcomb
Candice M. Irby John M. Wampler Phillip R. Scott Laura J. Corbin Jacob W. Biby Michael P. Martin Judge Susie Pritchett
Megan Morgan Richard A. Cochran Jr. John W. McCue II Jeffrey S. Landgraf Larry J. Paden Suzanne Woodrow Snell Jerry L. McCombs Brecken A. Wagner Judge John H. Scaggs
Bruce A. Coker Judge E. Bay Mitchell III Kieran D. Maye Jr. James R. Webb W. Todd Blasdel Judge Barry L. Hafar John H. Edwards III Angela Ailles Bahm David W. VanMeter Vol. 81 — No. 28 — 10/16/2010
David W. Kisner . . . . . . . . . . . . . . . . . . . J. David Ogle . . . . . . . . . . . . . . . . . . . . . . Michael A. Rubenstein . . . . . . . . . . . . . . Charles F. Alden III . . . . . . . . . . . . . . . . . Michael W. Brewer . . . . . . . . . . . . . . . . . Judge Bryan C. Dixon . . . . . . . . . . . . . . . Judge Vicki L. Robertson . . . . . . . . . . . . Judge Barbara G. Swinton . . . . . . . . . . . David B. Donchin . . . . . . . . . . . . . . . . . . Judy Hamilton Morse . . . . . . . . . . . . . . . Judge Lisa K. Hammond . . . . . . . . . . . . Reggie N. Whitten . . . . . . . . . . . . . . . . . . G. Calvin Sharpe . . . . . . . . . . . . . . . . . . . Daniel G. Webber Jr.. . . . . . . . . . . . . . . . . Michael L. Mullins . . . . . . . . . . . . . . . . . Don G. Holladay . . . . . . . . . . . . . . . . . . . Judge J. Lynne McGuire . . . . . . . . . . . . . Nancy S. Parrott . . . . . . . . . . . . . . . . . . . D. Lynn Babb . . . . . . . . . . . . . . . . . . . . . . Amy Jo Pierce . . . . . . . . . . . . . . . . . . . . . Leslie L. Lynch . . . . . . . . . . . . . . . . . . . . . Bradley A. Gungoll . . . . . . . . . . . . . . . . . Okmulgee................ Javier Ramirez . . . . . . . . . . . . . . . . . . . . . Osage.......................... Jesse J. Worten III Ottawa...................... Charles W. Chesnut . . . . . . . . . . . . . . . . . Pawnee...................... Jeff Steven Jones . . . . . . . . . . . . . . . . . . . Payne ......................... Drew M. Ihrig . . . . . . . . . . . . . . . . . . . . . Brenda Nipp . . . . . . . . . . . . . . . . . . . . . . . Susan C. Worthington . . . . . . . . . . . . . . . Pittsburg................. Mindy M. Beare . . . . . . . . . . . . . . . . . . . . Ellen C. Quinton . . . . . . . . . . . . . . . . . . . Pontotoc................. J. Wes Billingsley . . . . . . . . . . . . . . . . . . . T. Walter Newmaster . . . . . . . . . . . . . . . Pottawatomie . .... James T. Stuart . . . . . . . . . . . . . . . . . . . . . Joseph M. Vorndran . . . . . . . . . . . . . . . . . Pushmataha ......... James T. Branam . . . . . . . . . . . . . . . . . . . Roger Mills ........... Kelly Tice Roberts . . . . . . . . . . . . . . . . . . Rogers ...................... C. Noah Sears Melinda D. Wantland Seminole.................. R. Victor Kennemer III. . . . . . . . . . . . . . . Sequoyah................. Kent S. Ghahremani . . . . . . . . . . . . . . . . . Stephens................... Texas........................... Douglas D. Dale . . . . . . . . . . . . . . . . . . . Tillman..................... Clyde H. Amyx II . . . . . . . . . . . . . . . . . . . Tulsa ......................... Robert S. Farris . . . . . . . . . . . . . . . . . . . . . Judge Charles R. Hogshead . . . . . . . . . . Leonard I. Pataki . . . . . . . . . . . . . . . . . . . Renee DeMoss . . . . . . . . . . . . . . . . . . . . . William G. LaSorsa . . . . . . . . . . . . . . . . . Paul D. Brunton . . . . . . . . . . . . . . . . . . . . C. Michael Zacharias . . . . . . . . . . . . . . . . Kenneth L. Brune . . . . . . . . . . . . . . . . . . Vol. 81 — No. 28 — 10/16/2010
The Oklahoma Bar Journal
M. Courtney Briggs Judge Page P. Morgan Evan B. Gatewood Brandon P. Long Tim Rhodes Linda L. Samuel-Jaha Steven T. Horton Daniel J. Morgan Leanne T. Burnett Richard L. Rose Amy S. Fischer J. Kelly Work Celeste T. Johnson Collin R. Walke Jeff L. Todd Janna Dunagan Hall Jeffrey E. Tate Maurice G. Woods II Daniel G. Couch Lawrence E. Schneiter IV Cherish K. Ralls Dawn M. Rahme Lou Ann Moudy John M. Weedn Pat Pickerill David W. Bryan Jill M. Ochs-Tontz Cory T. Williams Trevor J. Furlong Michael D. Parks Preston S. Draper Ash E. Mayfield Matthew L. Thomas George J. Wright Jacqueline Jo Perrin Judge F. Pat VerSteeg
William D. Huser John T. Cripps III Cory B. Hicks John P. Kent Fred H. Demier Gale G. Allison Michael Scott Ashworth Kenneth G. Miles Kimberly K. Moore-Waite David M. Thornton Jr. Amber N. Peckio Garrett Shelton L. Benedict 2365
Bruce A. McKenna . . . . . . . . . . . . . . . . . Tony W. Haynie . . . . . . . . . . . . . . . . . . . . Paul B. Naylor . . . . . . . . . . . . . . . . . . . . . Vivian C. Hale . . . . . . . . . . . . . . . . . . . . . Jack L. Brown . . . . . . . . . . . . . . . . . . . . . . Catherine M. Cullem . . . . . . . . . . . . . . . Molly A. Aspan . . . . . . . . . . . . . . . . . . . . . Patrick D. O’Connor . . . . . . . . . . . . . . . . D. Faith Orlowski . . . . . . . . . . . . . . . . . . James R. Gotwals . . . . . . . . . . . . . . . . . . . James C. Milton . . . . . . . . . . . . . . . . . . . . Ron Main Phil Frazier Julie A. Evans John T. Hall Robert P. Redemann Trisha L. Archer Christopher L. Camp Kimberly Hays Melissa F. Cornell Blake R. Givens Judge Millie E. Otey Wagoner.................. Judge Douglas A. Kirkley Washington........... Gaylene F. McCallum . . . . . . . . . . . . . . . Michael A. Shiflet . . . . . . . . . . . . . . . . . . Washita..................... Judge Christopher S. Kelly . . . . . . . . . . Woods ....................... Jeremy T. Bays . . . . . . . . . . . . . . . . . . . . . Woodward ............ Bryce L. Hodgden . . . . . . . . . . . . . . . . . .
Jeremy K. Ward William “Bill” Sanders Michael “Mike” Esmond Nathan Harley Mayenschein Martha Rupp Carter Robert B. Sartin John R. Woodard III D. Kenyon Williams Jr. Georgenia A. Van Tuyl Judge E. Mark Barcus Prof. Martin A. Frey
JUDICIAL CONFERENCE DELEGATE Dist. Judge . ................. Judge Thomas P. Thornbrugh . . . . . . . . Assoc. Dist. Judge ...... Judge Mickey J. Hadwiger . . . . . . . . . . . PAST PRESIDENTS Jon K. Parsley J. William Conger Stephen D. Beam William Robert Grimm Michael Devere Evans Harry Arthur Woods Jr. Melissa Griner DeLacerda Gary Carl Clark Charles Donald Neal Jr. M. Joe Crosthwait Jr. Douglas W. Sanders Jr. John A. Gaberino Jr. William J. Baker James Duke Logan
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Remona K. Colson Linda S. Thomas Skye D. Shephard-Wood Jesse D. Kline Christopher M. Boring
ALTERNATE Judge John M. Kane IV Judge Mark A. Moore
Sidney George Dunagan Bob Warren Rabon Dean Andrew M. Coats Robert Forney Sandlin Michael Burrage Anthony M. Massad Burck Bailey David K. Petty James R. Eagleton Judge Paul Miner Vassar William George Paul Clarence D. Northcutt Judge Thomas R. Brett Winfrey David Houston
The Oklahoma Bar Journal
Vol. 81 — No. 28 — 10/16/2010
STATE OF OKLAHOMA, DEPARTMENT OF HUMAN SERVICES CHILD SUPPORT SERVICES ANNOUNCEMENT # 10-C096BU Oklahoma Child Support Services has an opening for a full-time attorney, preferably with experience in child support enforcement. This position will be located at the OKDHS-OCSS Tulsa East Office 3840 S 103rd East Ave., Tulsa, Oklahoma. The position involves preparation and trial of cases in child support related hearings in district and administrative courts. Duties will also include consultation and negotiation with other attorneys and customers of the Division. The position will assist office staff with preparation of legal documents and ensure their compliance with ethical considerations. Active membership in the Oklahoma Bar Association is required. This position is a Child Support Enforcement Attorney IV (beginning salary $4669.79 monthly)and may be under-filled as a Child Support Enforcement Attorney III (beginning salary $4067.52 monthly),a Child Support Enforcement Attorney II (beginning salary $3711.05 monthly) or as a Child Support Enforcement Attorney I (beginning salary $3354.59 monthly). Interested individuals must send a cover letter noting announcement number 10-C096BU, resume, and a copy of current OBA card to: Department of Human Services, Attn.: Human Resource Management Division, P.O. Box 25352, Oklahoma City, OK 73125. Application must be received no earlier than 8 a.m. Friday, October 15th, 2010 and no later than 5 p.m. on Wednesday, November 3, 2010. For additional information, please contact Faye Scott at faye.scott@okdhs.org. THE STATE OF OKLAHOMA IS AN EQUAL OPPORTUNITY EMPLOYER
Daniel Rodriguez
Minerva House Drysdale Regents Chair in Law University of Texas School of Law
“Are State Constitutions Fundamentally Progressive Documents (and Why Should We Care)?”
THURSDAY, OCTOBER 21, 2010 5 p.m. Public Lecture Homsey Family Moot Courtroom Sarkeys Law Center N.W. 23rd and Kentucky For more information call: Okla. City, OK. 73106 (405) 208-5335 | http://law.okcu.edu/ Free and open to the public.
O KLAHOMA C ITY U NIVERSITY S CHOOL OF L AW
NOTICE OF MEETING FOR CREDENTIALS COMMITTEE The Credentials Committee of the Oklahoma Bar Association will meet Thursday, Nov. 18, 2010, from 9:00 - 9:30 a.m. in Room 1 of Directors Row at the Crowne Plaza Hotel, 100 East Second Street, Tulsa, Oklahoma in conjunction with the 106th Annual Meeting. The Committee members are: Chairperson Luke Gaither, Henryetta; Pethi Hayes-Gabbard, Atoka; Leisa Gebetsberger, Tulsa; and Jeffrey D. Trevillion, Oklahoma City.
NOTICE OF MEETING FOR RULES & BYLAWS COMMITTEE The Rules & Bylaws Committee of the Oklahoma Bar Association will meet Thursday, Nov. 18, 2010, from 10:00 - 10:30 a.m. in Room 1 of Directors Row at the Crowne Plaza Hotel, 100 East Second Street, Tulsa, Oklahoma in conjunction with the 106th Annual Meeting. The Committee members are: Chairperson Robert S. Farris, Tulsa; Luke Abel, Oklahoma City; Roy D. Tucker, Muskogee; Trish L. Archer, Tulsa; and Jody R. Nathan, Tulsa.
NOTICE OF MEETING FOR RESOLUTIONS COMMITTEE The Resolutions Committee of the Oklahoma Bar Association will meet Thursday, Nov. 18, 2010, from 10:45 - 11:45 a.m. in Room 1 of Directors Row at the Crowne Plaza Hotel, 100 East Second Street, Tulsa, Oklahoma in conjunction with the 106th Annual Meeting. The Committee members are: Chairperson Peggy Stockwell, Norman; Chuck Chesnut, Miami; Cathy M. Christensen, Oklahoma City; Molly A. Aspan, Tulsa; D. Faith Orlowski, Tulsa; and Glenn A. Devoll, Enid.
Vol. 81 — No. 28 — 10/16/2010
The Oklahoma Bar Journal
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You are not alone. Free 24-hour confidential assistance • depression/anxiety • substance abuse • stress • relationship challenges
800.364.7886 Counseling and peer support are available. Some services free as a member benefit.
L AW YERS HELPING L AW YERS A SSISTANCE PROGR AM 2368
The Oklahoma Bar Journal
Vol. 81 — No. 28 — 10/16/2010
www.JimPriest.com
An experienced attorney... Not a politician
Paid for by Jim Priest for Attorney General
Vol. 81 — No. 28 — 10/16/2010
The Oklahoma Bar Journal
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Program of Events
Crowne Plaza Hotel, Tulsa u Nov. 17-19, 2010 All events will be held at the Crowne Plaza Hotel unless otherwise specified. Submit meeting room and hospitality suite requests to Craig Combs at craigc@okbar.org. Submit meeting program information to Melissa Brown at melissab@okbar.org.
Tuesday, Nov. 16 OBA Registration................................4 – 7 p.m. Oklahoma Fellows of the American Bar Foundation............7 – 9 p.m.
OU College of Law Alumni Reception and Luncheon.............. 11:15 a.m. – 1:30 p.m. OCU School of Law Alumni Reception and Luncheon................... 11:45 a.m. – 2 p.m. TU College of Law Alumni Reception and Luncheon..........................Noon – 2 p.m.
Wednesday, Nov. 17 OBA Registration and Hospitality....................... 8 a.m. – 5 p.m. Oklahoma Fellows of the American Bar Foundation..................... 8:30 – 9:30 a.m. Board of Bar Examiners..... 8:30 a.m. – Noon
Criminal Law Section Luncheon...................................Noon – 2 p.m. OBA Board of Governors Meeting...............................................2 – 4 p.m. Indian Law Section.............................2 – 4 p.m.
OBA/CLE Seminar Registration................................ 8:30 – 9 a.m.
Friends of Bill W.................................5 – 6 p.m.
OBA/CLE Seminar...................... 9 a.m. – 5 p.m.
Law Day Committee........................5 – 6:30 p.m.
See seminar program for speakers and complete agenda Criminal Law How Good Lawyers Survive Bad Times Family Law Nuts & Bolts
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President’s Reception...................7 – 9:30 p.m. (Free for everyone with meeting registration)
The Oklahoma Bar Journal
Vol. 81 — No. 28 — 10/16/2010
OBA Annual Luncheon For Members, Spouses And Guests ............................. Noon – 2 p.m. ($30 with meeting registration)
Thursday, Nov. 18 Legal Aid Services Pro Bono Breakfast.............. 7:30 – 8:45 a.m.
Featuring:
American College of Trust and Estate Counsel....... 8 – 9:30 a.m.
Michael Wallis Historian, Biographer & Author Tulsa
American College of Trial Lawyers.............................. 8 – 9:30 a.m. Professionalism Committee.................................... 8 – 9:30 a.m. OBA Registration and Hospitality....................... 8 a.m. – 5 p.m. Oklahoma Association for Justice Seminar............ 8:30 a.m. – 4 p.m. Credentials Committee............... 9 – 9:30 a.m. Legal Intern Committee.................................. 9 – 10:30 a.m.
Michael Wallis Book Signing..........2 – 3 p.m. (Books available for purchase) Diversity Committee Forum.............2 – 4 p.m. Council on Judicial Complaints........................................2 – 4 p.m. Real Property Section..................2 – 3:30 p.m.
Family Law Section.................... 9 a.m. – 5 p.m.
The Incarceration of Women in Oklahoma Seminar.....................................2:15 – 3:30 p.m. (Annual Meeting registration not required for admission)
Estate Planning, Probate and Trust Section.................. 10 – 11:45 a.m.
Oklahoma Bar Foundation Board of Trustees.............................3 – 5 p.m.
OBA Rules and By-Laws Committee............... 10 – 10:30 a.m.
Board of Editors.............................3:30 – 5 p.m.
OBA/CLE Plenary Session...... 9 a.m. – Noon
MCLE Commission................ 10:30 – 11:45 a.m. OBA Resolutions Committee......................... 10:45 a.m. – Noon
OBA/CLE: Lives in Balance: Lawyers Helping Lawyers.....................3:45 – 5:15 p.m. (Annual Meeting registration not required for admission) Friends of Bill W.................................5 – 6 p.m.
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Oklahoma Bar Foundation Fellows Reception......................6 – 7:30 p.m. Health Law Section......................6 – 8:30 p.m.
Friday, Nov. 19 President’s Breakfast.................. 7:30 – 9 a.m. ($20 with meeting registration)
Young Lawyers Division Board of Directors Annual Meeting..........................6:30 – 7 p.m.
OBA Registration and Hospitality................................. 8 – 10:30 a.m.
Young Lawyers Division President’s Reception.....................7 – 9 p.m.
Oklahoma Bar Association General Assembly......................... 9 – 10 a.m.
Music through the Years Featuring Jessica Hunt......................8 – 9 p.m.
Oklahoma Bar Association House of Delegates............. 10 a.m. – Noon Election of Officers & Members of the Board of Governors Approval of Title Examination Standards Resolutions
Casino Night....................... 9 p.m. – Midnight (Free for everyone with meeting registration) Prize drawing at end of the event Sponsor: OBA Young Lawyers Division
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Ballot Committee................... 11 a.m. – Noon
The Oklahoma Bar Journal
Vol. 81 — No. 28 — 10/16/2010
OBA/CLE Annual Meeting 2010 Crowne Plaza Hotel, Tulsa
November 17, 2010
DAY ONE
Family Law
Criminal Law
How Good Lawyers Survive Bad Times
Nuts and Bolts
Promenade A
Promenade B
Promenade C
Promenade D
WEDNESDAY Registration 8 - 9 a.m.
Program Planner/ Moderator
Program Planner/ Moderator
Program Planner/ Moderator
Program Planner/ Moderator
Lori Pirraglia
Ben Brown Charles Sifers
Jim Calloway
Collin Walke
Session 1 9 - 9:50 a.m.
Client Intake: Starting Out on the Right Foot/Making Good Client Choices
Immigration & Criminal Law: A Practical Explanation in Light of Padilla v. Kentucky
50 Tips for Tough Times
Administrative Law Trials: We Aren’t in Kansas Anymore
Jon Ford
Session 2 10 - 10:50 a.m.
Gary Payne
Joan Lopez Campbell Cooke
Temporary Order Hearing: Exhibits Needed and Preparing Your Clients Phil Tucker
Session 3 11 - 11:50 a.m.
Jim Calloway
The Practical & Advance Use of the Science of Eyewitness Identification in the Courtroom PART I
Marketing on a Budget
Get Your Ethics! (ethics)
Mark A. Robertson
Gina Hendryx
The Thrifty Lawyer
Your Solo Shopping List
Professor Gary Wells Ph.D.
Finding Expert Witnesses - Business Valuators and Mental Health Professionals TBD
The Practical & Advance Use of the Science of Eyewitness Identification in the Courtroom PART 2
L. Michele Nelson
Jim Calloway
Professor Gary Wells Ph.D.
12-2 p.m. LUNCH (On your own) Session 4 2 -2:50 p.m.
Dissolution Depositions: Taking and Defending Donelle Ratheal
Vol. 81 — No. 28 — 10/16/2010
Criminal Law Motions Practice
Free, Cheap and Easy Technology Tools
TBD
Jim Calloway
The Oklahoma Bar Journal
Your Job as a Criminal Law Attorney Garvin Isaacs
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OBA/CLE Annual Meeting 2010 cont’d Session 5 3 - 3:50 p.m.
Session 6 4 - 4:50 p.m.
Family Law
Criminal Law
How Good Lawyers Survive Bad Times
Nuts and Bolts
Trial Exhibits and Witness: Choosing and Preparation
Representing Persons Charged with Driving Under the Influence
Your Law Firm Finances
Bankrupty Chapter 7: The Ins and Outs
Kimberly Hays
Josh D. Lee Charles Sifers
The End/Beginning: Drafting the Decree/ Pre-Nups for New Beginnings
Working with the Media
Bill LaSorsa
Moderator Doug Dodd
TBD
Jennifer Kirkpatrick
Cutting Costs & Coralling Clients without Compromising Ethics (ethics)
Panel TBD
Mastering the Art of the Deposition Ronald Walker
Gina Hendryx Travis Pickens
4:50 p.m. ADJOURN
November 18, 2010 THURSDAY Registration 8:30 - 9 a.m.
Topic
DAY TWO
Program Moderator: Judge Thomas C. Gillert, District Judge, Tulsa
9 a.m.
Picking Cotton: Our Memoir of Injustice and Redemption
Speakers: Jennifer Thompson-Cannino, Salem, NC Ronald Cotton, Mebane, NC
9:50 a.m.
The Science of Eyewitness Identification
Speaker: Gary D. Wells, Ph.D., Professor of Psychology, Iowa State University, Ames
10:40 a.m.
Break
10:50-11:50 a.m.
Eyewitness Identification in Oklahoma
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Panelists: Michael Huff, Tulsa Police Department, Homicide Division, Tulsa Douglas E. Drummond, Tulsa County First Assistant District Attorney, Tulsa Stephen Kunzweiler, Assistant District Attorney, Tulsa Jennifer Thompson-Cannino Ronald Cotton Gary Wells, Ph.D.
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2010 Registration Form
Please complete a separate form for each registrant.
Name _____________________________________________________________________________________________ E-mail ______________________________________________________________________________________________ Badge Name (if different from roster) ______________________________ Bar No. ____________________________ Address ___________________________________________________________________________________________ City __________________________________ State ________ Zip _______________ Phone ______________________ Name of Non-Attorney Guest _________________________________________________________________________
Check all that apply:
Please change my OBA roster information to the information above. q Yes q No
q Judiciary q OBF Fellow q OBF Past President q OBA Past President q YLD Officer q YLD Board Member q YLD Past President q Board of Bar Examiner q 2010 OBA Award Winner q Delegate q Alternate q County Bar President: County _______________________
q YES! Register me for the 2010 Annual Meeting, November 17, 18 & 19, in Tulsa. Events will be held at the Crowne Plaza Hotel. Registration fee includes continental breakfast in hospitality area, President’s Reception ticket(s), convention gift, Vendors Expo, Music through the Years and Viva Las Vegas Casino Night. q MEMBER: q $50 through Nov. 3; $75 after Nov. 3..................................................................... $ __________ q NEW MEMBER (Admitted after Jan. 1, 2010): q Free through Nov. 3; $15 after Nov. 3......................... $ __________ q LAW STUDENT DIV. q $25 through Nov. 3; $35 after Nov. 3.............................................................. $ __________ I will be attending/participating in the following ticketed events in addition to my registration fee for Annual Meeting: q WED. & THURS.: CLE Multitrack ( ___ [0 or 1] ticket @ $150 through Nov. 3; $175 after Nov. 3; and Plenary $50 for new members through Nov. 3, $75 after Nov. 3) . ............................... $ __________ q WEDNESDAY: CLE Multitrack only ($125/$150)............................................................................ $ __________ q THURSDAY: CLE Plenary only ( ___ [0 or 1] ticket @ $75 through Nov. 3; $100 after Nov. 3; $25 for new members through Nov. 3, $50 after Nov. 3)........................................... $ __________ q THURSDAY: Annual Luncheon ( ___ number of tickets @ $30 each)................................................... $ __________ q FRIDAY: President’s Breakfast ( ___ number of tickets @ $20 each).................................................... $ __________ q Please check here, if under the Americans with Disabilities Act you require specific aids or services during q Audio q Visual q Mobile (Attach a written description of your needs.) your visit to the OBA Annual Meeting. I will be attending the following ticketed events that do NOT require Annual Meeting registration: q WEDNESDAY: Law School Luncheon – (check one) q OCU q OU q TU ( ___ number of tickets @ $30 each........................................................................ $ __________ TOTAL $ __________ I will be attending the free event(s) below that do(es) NOT require Annual Meeting registration: q Lives in Balance: Lawyers Helping Lawyers PAYMENT OPTIONS: q Incarceration of Women in Oklahoma q Check enclosed: Payable to Okla. Bar Association ER IST REG TO Credit card: q VISA q Mastercard q Discover q American Express YS THREE WA ent paym with form n tratio regis n MAIL this or credit card info to: OBA Annual Meeting P.O. Box 53036 Okla. City, OK 73152 n FAX this registration form with credit card information to: (405) 416-7092. n ONLINE at www.okbar.org ANCELLATION POLICY Full refunds nC will be given through Nov. 10. No refunds will be issued after that date.
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Card #______________________________________________________________ Credit Card CVV/CVC # (on back of card)___________________________________ Exp. Date____________________________________________________________ Authorized Signature ____________________________________________________________________
HOTEL ACCOMMODATIONS:
Fees do not include hotel accommodations. For reservations contact: Crowne Plaza Tulsa Hotel at (800) 227-6963. Call by Oct. 26 and mention hotel code: Oklahoma Bar Association 2010 Convention for a special room rate of $105 per night. For hospitality suites, contact Craig Combs at (405) 416-7040 or e-mail: craigc@okbar.org. The Oklahoma Bar Journal
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ANNUAL MEETING
House of Delegates Thank you to the County Bar Presidents of: Adair, Alfalfa, Beaver, Beckham, Blaine, Bryan, Canadian, Carter, Cherokee, Choctaw, Cimarron , Cleveland**, Coal, Comanche, Cotton, Craig, Creek, Custer, Delaware, Dewey, Ellis, Garfield, Garvin, Grady, Grant, Greer, Harper, Hughes, Jackson, Jefferson, Johnston, Kay, Kingfisher, Kiowa, Logan, Love, Major, Marshall, Mayes, McClain, McCurtain, McIntosh, Murray, Muskogee, Okfuskee, Oklahoma, Okmulgee, Osage, Ottawa**, Pawnee, Payne, Pittsburg, Pontotoc, Pottawatomie, Pushmataha, Rogers, Roger Mills, Seminole, Sequoyah, Texas, Tillman, Tulsa, Wagoner, Washington, Washita, Woods and Woodward counties for submitting your delegate and alternate selections for the upcoming OBA Annual Meeting. (**Reported, awaiting election) Listed below are the counties that have not sent their delegate and alternate selections to the offices of the Oklahoma Bar Association. Please help us by sending the names of your delegates and alternates now. In order to have your delegates/alternates certified, mail or fax delegate certifications to OBA Executive Director John Morris Williams, P.O. Box 53036, Oklahoma City, OK 73152-3036, or Fax: (405) 416-7001. Atoka Caddo Harmon Haskell Latimer
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In accordance with the Bylaws of the Oklahoma Bar Association (5 OS, Ch. 1, App. 2), “The House of Delegates shall be composed of one delegate or alternate from each County of the State, who shall be an active or senior member of the Bar of such County, as certified by the Executive Director at the opening of the annual meeting; providing that each County where the active or senior resident members of the Bar exceed fifty shall be entitled to one additional delegate or alternate for each additional fifty active or senior members or major fraction thereof. In the absence of the elected delegate(s), the alternate(s) shall be certified to vote in the stead of the delegate. In no event shall any County elect more than thirty (30) members to the House of Delegates.” “A member shall be deemed to be a resident, … of the County in which is located his or her mailing address for the Journal of the Association.”
LeFlore Lincoln Noble Nowata Stephens
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ANNUAL MEETING
OBA Resolutions The following resolutions will be submitted to the House of Delegates at the 106th Oklahoma Bar Association Annual Meeting at 10 a.m. Friday, Nov. 19, 2010, at the Crowne Plaza Hotel in Tulsa. Because of the page length of this resolution, the resolution in its entirety is available at www.okbar.org.
RESOLUTION NO. THREE: AMENDMENTS TO OKLAHOMA CODE OF JUDICIAL CONDUCT BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the suggested changes to the Oklahoma Code of Judicial Conduct, as published in outline form in The Oklahoma Bar Journal and posted in its entirety on the OBA website at www.okbar.org, be approved and adopted by the Oklahoma Supreme Court. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Bench and Bar Committee. Adoption recommended by the OBA Board of Governors.) A Summary of the Proposed Code of Judicial Conduct For Oklahoma This report summarizes and highlights certain provisions of the Proposed Oklahoma Code of Judicial Conduct. The draft Code submitted to the O.B.A. Board of Governors contains the comparable provisions of the present Oklahoma Code, the proposed Oklahoma Code, how the proposed Oklahoma Code compares to the American Bar Association Model Code and comments from the Bench and Bar Committee concerning the various provisions of the proposed Oklahoma Code. This report does not attempt to address all of the changes the proposed Code makes or how it is different from the present Oklahoma Code and the Model ABA Code. The report will simply highlight some of the more significant changes the proposed Code makes in Oklahoma’s Code of Judicial Conduct.
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The most obvious change is in format. In the present Oklahoma Code there are the five Canons. These are broadly worded statements that set out general guidelines for judges. Each Canon is followed by lettered and numbered paragraphs which set out statements of what a judge should or should not do. The present Code does not set out mandatory requirements for judges. The Proposed Code abandons that format and follows the format of the new American Bar Association Model Code for Judicial Conduct. By following this format, the Code proposed for Oklahoma contains the following sections: Preamble, Scope, Terminology, Application, Canons, Rules and Comments. Five of the sections are not in the present Oklahoma Code. These are the Preamble, the Scope, the Terminology, the Rules and the Comments. 1. The Preamble sets very general guidelines for the Code and establishes the purpose of the Code. Some of the Preamble is found in the present Oklahoma Canon 1. 2. The Scope explains the goals and limitations of the various parts of the Code including the Canons, Rules, and Comments. 3. The Terminology section defines a number of the terms found in the Code. 4. The Rules address the specific conduct of judges and judicial candidates as to what is permitted and what is prohibited. 5. The Comment sections of the Code serve two functions. A. To provide guidance regarding the purpose, meaning and proper application of the Rules B. To identify aspirational goals for judges and judicial candidates
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The Canons in the Proposed Code are short statements of over-arching principles of judicial ethics. The Rules in the Proposed Code are binding and enforceable. The Canons and Comments provide important guidance in enforcing the Rules but violations of the Canons and Comments do not result in any disciplinary action. The major change in the Proposed Rules is that they are mandatory when the terms “shall” or “shall not” are used. A judge or judicial candidate can be disciplined for violating a Rule. When a Rule uses the terms “may” or “should” the conduct being addressed is committed to the personal and professional discretion of the judge or judicial candidate. The Code is not designed nor is it intended as a basis for civil or criminal liability. Judges and judicial candidates are reminded in the Code that, in addition to the Code, they must comply with the Rules of the Oklahoma Ethics Commission. The Application section makes it clear that Canon 4 applies to judicial candidates and that all candidates for judicial office are subject to discipline under the Code. Many of the Rules in the proposed Code are found in the present Oklahoma Code as a part of the Canons but, in the present Code, the language of the Canons is only directory. Canon 1 contains the general requirements that a judge shall uphold and promote the independence, integrity and impartiality of the judiciary. There were extended discussions by the ABA that the Code should not require a judge to “avoid * * * the appearance of impropriety”. Eventually, the language was included in the ABA Model Code and it is included in the Proposed Oklahoma Code. This is not a change for Oklahoma because our present Oklahoma Code in Canon 2 contains the identical language. This requirement also appears in Rule 1.2. Rule 1.2 — Comment [4] is new. This Comment suggests to judges that they should promote ethical conduct among judges and lawyers and promote access to justice for all. 2378
Rule 1.2 — Comment [6] builds on the requirement of access to justice and permits and encourages judges to initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice. Rule 1.3 prohibits a judge from abusing the prestige of the judicial office. The Comments under the Rule give guidance as to what a judge should not do if the judge wishes to avoid violating this Rule. Canon 2 requires a judge to perform the duties of the judicial office “impartially, competently and diligently.” This is similar to the present Oklahoma Canon 3 except the word “competently” is added. Rule 2.2 — Comment [4] recognizes that judges do not compromise their impartiality when they make reasonable accommodations for pro se litigants. Rule 2.3 requires a judge to perform his or her duties without bias or prejudice. Comment [2] under this Rule spells out examples of what could be considered bias or prejudice. Rule 2.6(B) recognizes that every litigant has the right to be heard and that even though settlement is often used today as a method of case resolution, judges should not act in any manner that would coerce a party to settle a legal dispute. Rule 2.8 is concerned, among other matters, with the communication a judge has with jurors. While a judge is not to commend or criticize the verdict of jury except in a court order or opinion, a judge is encouraged to express appreciation to the jurors for their service to the judicial system and community. This is not a change for Oklahoma. However, the provision for expressing appreciation to jurors for their service is not in the ABA Model Code. Rule 2.9 (A)(4) and Comment [4] were added, together with several other sections of the Code, to recognize that procedures may be different for specialized courts such as drug courts and mental health courts. Under Comment [4] a judge may initiate, permit or consider ex parte communications when serving on these specialized courts. The Oklahoma Code uses
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the term “specialized courts” while the ABA Model Code uses the term “problem solving courts.” Rule 2.10(E) allows a judge to respond either directly or through a third party to public criticism in the media or elsewhere. Comment [2] under the Rule suggests that it may be preferable for a third party to respond for the judge rather than the judge responding on his or her own behalf. See also Rule 4.1 Comments [8] and [9] on responses by candidates for judicial office. Rule 2.11 on the disqualification of a judge is very similar to the present Oklahoma Code. Rule 2.11 (A)(4) refers to the disqualification of a judge resulting from a lawyer’s or law firm’s contribution to a judge’s campaign. If a judge knows or learns of such contribution and the contributions are in such an amount that a reasonable person would believe a judge’s fairness could be affected, the judge should consider what the public’s perceptions would be of such contributions. However, contributions within the limits allowed by the Oklahoma Ethics Commission will not normally require disqualification. Rule 2.14 and 2.15 and the comments under the Rules set forth the responsibilities of a judge who becomes aware that another judge or a lawyer is impaired or is involved in misconduct. These responsibilities are much more specific and detailed than what is found in the present Oklahoma Code. Rule 3.1 on extrajudicial activities is more restrictive than the present Oklahoma Code on a judge’s activities. Rule 3.1 (E) limits a judge’s use of court premises, staff, stationery, equipment and other resources except for incidental activities that concern the law, the legal system or the administration of justice. There are exceptions found in Rule 4.1(A)(10) and 4.1(C). The latter Rule allows photographs to be taken in a courtroom by a judge or judicial candidate but not while the court is in session. Rule 3.5 prohibits a judge from intentionally disclosing or using non public information acquired in a judicial capacity for Vol. 81 — No. 28 — 10/16/2010
any purpose not related to the judge’s duties. Rule 3.6 was the most controversial rule the committee considered. This rule prohibits a judge from holding membership in any organization that practices invidious discrimination. The committee chose not to adopt the ABA Model Rule which listed a number of specific types of organizations that might be considered to practice invidious discrimination. Instead the committee adopted a rule similiar to the rule adopted for the federal courts. There are specific exemptions for religious organizations and national or state military service. There is also an exemption for purely private organizations whose membership limitation could not be constitutionally prohibited. This would include the Boy Scouts although that organization is not specifically named. Rule 3.7(A) provides limits on a judge’s activities in fundraising for charitable purposes. Rule 3.7(B) allows a judge to encourage lawyers to provide pro bono legal services. Rule 3.7(C) recognizes a judge’s responsibilities in community outreach programs primarily related to the law and the legal system. Rule 3.10 Comment [2] recognizes that Rule 3.10, which prohibits a judge from practicing law, does not prohibit the practice of law pursuant to a judge’s military service. Rule 3.12 recognizes that a judge’s receipt of compensation for extra judicial activities and a judge’s asking for, soliciting, receiving or agreeing to receive things of value from particular individuals or groups is controlled and regulated by the Rules of the Oklahoma Ethics Commission. The committee chose not to adopt the ABA Model Code which has very specific requirements for reporting extra judicial compensation and the receipt of gifts and other things of value. This was done because Oklahoma judges must comply with the Rules of the Oklahoma Ethics Commission and there were conflicts between the Rules of the Oklahoma Ethics Commission and the ABA Model Code.
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Rule 3.13 limits what a judge may accept as a gift, loan, bequest, benefit or other thing of value. In paragraph (B) the Rule sets out what a judge may accept unless it is prohibited by the Rules of the Oklahoma Ethics Commission or other law. Rule 3.15, which is the reporting requirement of the Proposed Code, is quite different from the requirements for reporting the receipt of compensation or things of value found in the ABA Model Code. The Proposed Oklahoma Code requires a judge to report such items as required by the Oklahoma Ethics Commission or applicable law. Rule 4.1 through Rule 4.5 set out the permitted and prohibited activities for those who are candidates for judicial office. Rule 4.1(10) prohibits a judge from requiring or compelling the judge’s staff to aid in the judge’s campaign for judicial office. Rule 4.1(11) and (14) adopted a malice standard for comments made by a judge during a judicial campaign. Under Minnesota v. White a judge or judicial candidate may express his or her personal views on various issues. These two Rules comply with that case and only prohibit a judge from making false or misleading statements knowingly or with reckless disregard for the truth. Section (14) specifically provides that a candidate for judicial office who knowingly or with reckless disregard for the truth misrepresents the identity, qualifications, present position or other fact concerning the candidate or an opponent is subject to discipline under the Code. Rule 4.1(13) requires that in connection with cases, controversies or issues that are likely to come before a court, a judge should not make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the judge. However, this Rule does not prohibit a judge from making statements or announcements of personal views on legal, political or other issues. These cannot be prohibited under the Minnesota v. White case.
third persons or the media. The judicial candidate may make a factually accurate public response. Comment [9] suggests that although a judicial candidate may respond directly it is preferable for someone else to respond for the judicial candidate. See also Rule 2.10(E) and Comment [2] under that Rule. Rule 4.4 sets the time limits for seeking contributions for a judicial campaign. A candidate’s campaign committee may not solicit or accept contribution more than 180 days before the filing period for the judicial election or more than 60 days after the last election in which the candidate participated. Rule 4.6 is not a significant change in the present Oklahoma Code except the Rule now specifies the form which each judicial candidate must sign and file with the Administrative Director of the Courts. Canon 4 and the Rules under the Canon do not have any enforcement provisions for prompt action involving alleged violations which occur during a campaign for judicial office. To meet this deficiency the Bench and Bar Committee has prepared rules for the enforcement of Canon 4 as it applies to judicial elections. These rules, which are designated Rules for the Committee of Judicial Elections, were considered and approved by the Bench and Bar Committee. The rules were then forwarded to the Board of Governors of the Oklahoma Bar Association for their consideration and the Board had now approved these rules. These Rules for the Committee on Judicial Elections and the Code of Judicial Conduct will be considered by the House of Delegates of the OBA at their November meeting The present Oklahoma Code of Judicial Conduct contains provisions for the limitation of use of cameras in the courtroom. The committee discussed this issue at length but eventually decided that such rules did not belong in a Code of Judicial Conduct. These rules, if they are to be kept, would be better placed in the Rules for the District Courts or some other set of rules.
Rule 4.1 Comment [8] and [9]. These comments permit a judicial candidate to respond to false, misleading, or unfair allegations made by an opposing party, 2380
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RESOLUTION NO. FOUR: ADOPTION OF RULES FOR THE COMMITTEE ON JUDICIAL ELECTIONS BE IT RESOLVED by the House of Delegates of the Oklahoma Bar Association that the suggested adoption of Rules for the Committee on Judicial Elections, as published in The Oklahoma Bar Journal and posted on the OBA website at www.okbar.org, be approved and adopted by the Oklahoma Supreme Court. (Requires 60% affirmative vote for passage. OBA Bylaws Art. VIII Sec. 5) (Submitted by the Bench and Bar Committee. Adoption recommended by the OBA Board of Governors.) PROPOSED RULES FOR THE COMMITTEE ON JUDICIAL ELECTIONS In order to maintain the independence, integrity and impartiality of the judiciary in the State of Oklahoma, the Supreme Court has adopted the Code of Judicial Conduct which governs the conduct of candidates for judicial office under its exclusive supervisory and administrative power over the inferior courts, as provided under Article VII of the Oklahoma Constitution. To facilitate the enforcement of the Code, as it relates to judicial elections, the Supreme Court now establishes a Committee on Judicial Elections. RULE 1. ORGANIZATION A. ORGANIZATION. There is established a Committee on Judicial Elections. The Committee shall consist of nine (9) members. Three (3) members shall be members of the Oklahoma Bar Association, in good standing, who are not judges of a court of record. Three members shall be district judges or associate district judges with at least 10 years of service. These judges may be judges in active service or they may be retired judges with the required length of service before their retirement. Three members shall be lay persons. B. APPOINTMENT. The Board of Governors of the Oklahoma Bar Association shall appoint the attorney members and the lay members of the committee. The Chief Justice of the Supreme Court shall appoint the judge members. The terms of the initial appointments to the Committee shall be as follows: one attorney member, one judge member and one lay member shall be appointed for a term of one year; one attorney member, one judge Vol. 81 — No. 28 — 10/16/2010
member and one lay member shall be appointed for a term of two years; and the remaining attorney member, judge member and lay member shall be appointed for a term of three (3) years. Following the initial appointments the terms of service for the members of the Committee shall be for three (3) years. If a member of the Committee changes his or her status as a member of one of the three (3) categories of membership, the Committee member shall immediately submit his or her resignation from the Committee to the Chairperson of the Committee. The Chairperson of the Committee shall provide notice of resignation to the appointing authority for the affected category of membership. Within sixty (60) days the appointing authority shall appoint a new member of the Committee. The resignation of the former committee member shall not be effective until the replacement member is appointed. The replacement member shall be appointed for the remainder of the unexpired term of the former member and may be reappointed. If a member of the committee resigns for a reason other than a change of eligibility status or death the procedure set out in the previous paragraph shall be followed in appointing a new committee member. C. CHAIRPERSON. The chairperson and vice-chair person shall be elected by the members of the Committee from any of the three groups represented on the Committee. The term of office for the chairperson and vicechair person shall be two years and these officers may be reelected for two additional terms. The chairperson and vice-chairperson shall furnish their contact information to the Administrative Director of the Courts and ensure that such information is accurate and up to date. D. CONFIDENTIALITY. Except as provided under Rule 3 L and Rule 5 A all filings, documents, correspondence and proceedings before the Committee shall be confidential and shall not be released to the public. RULE 2: COMPLAINTS A. COMPLAINT FORM. Any individual who believes there has been a violation of Canon 4 of the Code of Judicial Conduct may file a complaint against a judge or a candidate seeking election to a judicial office. The complaint shall be made in writing and be signed and verified by the complaining party. The complaint shall
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allege a violation or violations of Canon 4 with specific facts and sufficient documentation to support the allegations. If the violation or violations alleged concern written or recorded material, those materials shall be attached to the complaint.
with a copy of all attachments to him or her by overnight delivery using the United States Postal Service or another express delivery service. In addition, to provide more immediate notice, the chairperson may send a copy of the complaint by e-mail or facsimile.
B. It shall include contact information for both the complaining party and the defending party. The contact information should include the e-mail address, telephone number, facsimile number, mailing address and physical address for both parties.
F. NOTICE OF PANEL MEMBERS. Immediately upon the appointment of the Hearing Panel the Chairperson shall provide, by e-mail or facsimile to the complaining party and the defending party, the names and contact information of the three panel members.
B. FILING. The original complaint and (5) five copies of the complaint with all attachments shall be filed with the Administrative Director of the Courts. The complaint and attachments may be filed during regular business hours by personal delivery, by United States Postal Service First Class mail or another express delivery service or by e-mail or facsimile. Immediately upon receipt of a complaint, the Administrative Director shall notify the Chairperson of the Committee of the receipt of the complaint and forward five (5) copies of the complaint with all attachments to him or her. This shall be sent by overnight delivery using the United States Postal Service or another express mail provider. The Administrative Director of the Courts will in the Director’s office file one copy of the complaint with all attachments.
G. RESPONSIBILITIES OF THE PANEL CHAIRPERSON. The panel chairperson shall ensure that all members of the panel receive copies of all written communications with the parties and the documents and materials provided by the parties.
C. RECEIPT. The Chairperson shall ensure that each complaint meets the requirements of Rule 2. If the complaint fails to meet the requirements of Rule 2 the Chairperson shall notify the complaining party and indicate the reasons why the complaint is insufficient. The complaining party shall have the right to file an amended complaint to correct the deficiencies, pursuant to and in accordance with Rule 2 B. D. PANEL. If the complaint meets the requirements of Rule 2 the Chairperson shall, within two business days after its receipt, appoint a Hearing Panel comprised of three (3) members of the Committee including one judge member, one attorney member, and one lay member. The Chairperson shall designate a member of the Hearing Panel to serve as panel chairperson and shall forward the complaint to all members of the panel. E. NOTICE OF A COMPLAINT. The Chairperson shall immediately notify the defending party that a complaint has been made against him or her and forward a copy of the complaint 2382
RULE 3: HEARING PROCEDURES A. NOTICE OF THE HEARING. The panel chairperson shall set a date for a hearing to be held not less than two (2) calendar days and not more than six (6) calendar days after the appointment of the Hearing Panel and shall by e-mail or facsimile immediately notify both parties of the date of the hearing. B. RESPONSE. The defending party shall serve a written response to the allegations of the complaint along with any supporting documentation or materials to the members of the Hearing Panel and to the complaining party. A copy of the response with all supporting documentation and materials shall also be filed with the Administrative Director of the Courts. Except as provided in Rule 3 E, the Response shall be filed within two business days of receiving a copy of the complaint. The response may be filed during regular business hours by personal delivery or be sent by overnight delivery using the United States Postal Service First Class mail, another express delivery service, or by e-mail or facsimile. The date of personal delivery, the sending of the e-mail, or facsimile or the date of mailing shall be considered the date of filing. C. FAILURE TO RESPOND. If the defending party does not file a response in the manner required by Rule 3 B the Hearing Panel may proceed to hear the matter. However, at its discretion, the Committee may consider a late filed response. D. HEARING. The chairperson of the Hearing Panel shall conduct the hearing which may
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be in person or at the chairperson’s discretion by teleconference or some other effective means which allows all parties and the panel to communicate directly with each other. 1. The parties shall have an opportunity to appear at the hearing in person and/or by counsel. 2. The parties may call witnesses to give testimony relevant to the issues raised in the pleadings and may present any relevant evidence in support of the party’s position. 3. The parties may offer oral arguments in support of their positions. 4. The rules of evidence shall not be strictly enforced and the chairperson shall endeavor to conduct the proceedings in such a way as to ascertain the truth of the matter before the panel without allowing undue or duplicative proof. E. EXPEDITED HEARING. If a complaint is filed within two weeks of an election in which the parties are involved, the panel chairperson may determine that an expedited hearing is necessary. If such an expedited hearing is determined to be necessary the panel chairperson, in the chairperson’s sole discretion, shall set the date for the hearing and the time for filing a response to the complaint. All panel members and the parties shall be notified by e-mail or facsimile of the date and time for the expedited hearing and the time in which to respond to the complaint. The provision of Rule 3 C shall apply if no response is filed. F. DETERMINATION. Following the hearing the panel shall determine if a violation(s) of Canon 4 have occurred and that the allegations warrant speedy intervention or, alternatively, that a violation(s) of Canon 4 has not occurred, and/or that the allegations do not warrant speedy intervention by the panel. G. BURDEN OF PROOF AND EVIDENTIARY STANDARD. The party bringing the complaint shall have the burden of proof. The standard of evidence to be used by the panel in making its determination of whether a violation of the Rules of Judicial Conduct has occurred shall be by clear and convincing evidence. H. HEARING PANEL’S REPORT. The panel shall issue a written report within two (2) business days after the hearing specifying the panel’s determination. If a violation is found the Vol. 81 — No. 28 — 10/16/2010
report shall identify the rule(s) which has been violated and the conduct constituting the violation(s). A majority of the panel members must agree with the report and sign it. The report of the panel shall be transmitted to the parties orally, or by facsimile or by e-mail and copies shall be sent to the parties by overnight delivery. I. WAIVER OF HEARING PROCEDURES. The hearing before the Hearing Panel may be waived if the Complaining Party, the Defending Party and the Hearing Panel agree to the waiver of the hearing. The waiver by the parties shall be in writing and sent by facsimile or e-mail to the Chair of the Hearing Panel. Each party shall submit his or her individual waiver to the panel chair. Following the receipt of the waivers by the parties the panel members and the parties may then confer in person or by a telephone conference in an attempt to resolve the complaint. If the complaint is resolved through the informal procedure the Hearing Panel may dismiss the complaint if it is determined there was no violation of Canon 4. If it is decided by the Hearing Panel there has been a violation of Canon 4, the panel may require any of the action provided for in Rule 3 J. The Hearing Panel shall provide oral notice of its decision to the parties and shall send a written decision by facsimile or e-mail to the parties and to the Chair of the Committee on Judicial Elections. If the complaint is resolved through the waiver of the hearing procedure there is no right of appeal by either party. J. CEASE AND DESIST ORDER. If the panel determines that a violation(s) of Canon 4 has occurred, it may issue a cease and desist order which identifies the rule(s) violated and the conduct determined to be a violation of Canon 4. The panel may direct the defending party-candidate to take appropriate remedial measures which may include: 1. Immediately cease the offending conduct; 2. Withdraw the offending material, if any, from public distribution and/or publication; 3. Publish a retraction in the specific media required by the panel; 4. Publish an apology in the specific manner required by the panel; and/or
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5. Submit a signed written agreement of compliance within time certain; 6. Any other remedial measure deemed appropriate by the panel; 7. Any combination of the above remedial measures. The order shall provide for a reasonable time as determined by the panel, within which a defending party-candidate must comply with the cease and desist order and the manner for establishing proof of such compliance. In setting the time for compliance with the cease and desist order the panel shall take into consideration the time remaining before the judicial election. Before publication the chairperson of the panel shall approve the wording of any retraction or apology required of a candidate. If the defending party candidate does not comply with the cease and desist order, the panel may request that the Committee on Judicial Elections refer the matter in accordance with Rule 6 to the General Counsel of the Oklahoma Bar Association or to the Council on Judicial Complaints. K. FINDING OF NO VIOLATION. If the panel’s decision is that it does not believe that a violation(s) has occurred, the panel shall issue a decision that it has determined no violation has occurred. The complaining party shall have the opportunity to request an appellate hearing. L. DISCLOSURE OF THE HEARING PANEL’S REPORT. The Hearing Panel shall consider and determine if the report or any part of the report should be released to the public. In making the decision the Hearing Panel shall consider the requests of the parties and what is in the best interests of the public, but it shall be in the sole discretion of the Hearing Panel to make the decision to release or not release the report. M. CHANGE OF TIME LIMITS. The chairperson of the Hearing Panel, for good cause shown may shorten or extend the time limits set out in this rule. N. DECISION TO APPEAL. 1. If either the complaining party or the defending party wishes to appeal the decision of the Hearing Panel that party may do so by notifying the chair of the Committee on Judicial Elections of the decision to appeal and fol2384
lowing the appointment of the Appellate Panel file with that panel a notice of appeal and a position paper. The position paper shall set out the basis of the party’s appeal and why there was or there was not a violation(s) of the Rules of Judicial Conduct. The defending party may commence such an appeal even though he or she has agreed to comply with a cease and desist order or other directive. 2. If the appeal is commenced the Hearing Panel will file with the Appellate Panel its decision, orders and/or directives and the original record of all materials filed with the Hearing Panel. This material together with the party’s notice of appeal and position paper shall be the record on the appeal. 3. The party appealing the decision of the Hearing Panel shall now be designated the Appellant. The other party shall be designated the Appellee. O. STAY OF ACTION PENDING APPEAL. The Hearing Panel may stay any remedial action pending on appeal. P. TIME FOR FILING NOTICE OF APPEAL AND POSITION PAPERS. If the appeal is commenced, the Notice of Appeal and Position Paper(s) provided for in Rule 3 N shall be filed within five (5) business days of the receipt of the decision of the Hearing Panel. RULE 4: APPELLATE PROCEDURES A. APPOINTMENT OF APPELLATE PANEL. Upon receiving notice of the institution of the appellate procedures, the chairperson shall appoint an Appellate Panel consisting of three members of the Committee including one judge member, one attorney member and one lay member. The Chairperson of the Committee shall designate a member of the panel to serve as the panel chairperson. None of the members of this panel shall have served on the Hearing Panel in the matter now before the Committee. B. NOTIFICATION. The chairperson of the Appellate Panel shall set a date for the hearing and notify the parties. The hearing shall occur within ten (10) business days after receipt of the appellant’s notice of appeal and position paper. C. APPELLEE’S POSITION PAPER. The appellee shall file a written position paper with the panel chairperson and serve a copy on the appellant at least three (3) business days before the date set for hearing. The Appellee’s posi-
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tion shall also become a part of the record on appeal.
3. A majority of the members of the Appellate Panel must agree with the decision and sign it.
D. FORM OF POSITION PAPERS. The position papers shall indicate why the specific conduct alleged in the matter does or does not constitute a violation(s) of Canon 4, why the decision of the Hearing Panel was or was not in error and also may indicate why the specific conduct alleged is or is not allowed by law or the Code of Judicial Conduct.
RULE 5: ACTIONS AND SANCTIONS
E. ADMINISTRATOR. The chairperson of the Appellate Panel shall act as the administrator of the proceedings and shall call witnesses, hear arguments, entertain objections and take such other actions as are necessary to maintain the decorum of the proceedings. F. COUNSEL. The parties may be represented by counsel, if desired, or may represent themselves. G. HEARING. 1. The hearing shall be a de novo hearing. 2. The parties may call witnesses to give testimony relevant to the issues raised in the pleadings and may present any relevant evidence in support of the party’s position. 3. The parties may offer oral arguments in support of their positions. 4. The rules of evidence shall not be strictly enforced and the administrator shall endeavor to conduct the proceedings in such a way as to ascertain the truth of the matter before the panel without allowing undue or duplicative proof. H. DECISION. 1. Within five (5) business days of the date of the hearing the Appellate Panel will issue its decision. The Panel may affirm, modify or reverse the decision of the Hearing Panel. If the Committee finds that there has been a violation of the Code of Judicial Conduct it shall determine if remedial action should be imposed and, if any, the remedial action that is to be imposed upon the person or persons committing the violation. 2. The decision shall be issued in writing and shall contain findings of fact and conclusions of law and it shall specify any action taken by the Appellate Panel and the remedial action to be imposed, if any. Vol. 81 — No. 28 — 10/16/2010
A. PUBLIC STATEMENT. The Appellate Panel shall make the decision available to the public. B. CEASE AND DESIST ORDER. The Appellate Panel may issue a cease and desist order to the party-candidate requiring him or her to stop the behavior that violates Canon 4 and/or if warranted, to issue a public apology and/or a retraction in one or more forums, as determined by the Appellate Panel. The cease and desist order shall set out the conduct which violates Canon 4 of the Code of Judicial Conduct, including the specific statements which were made, if applicable. RULE 6. REFERRAL FOR DISCIPLINE. In no event shall the Committee on Judicial Elections have the authority to institute disciplinary proceedings against any candidate for judicial office, which power is specifically reserved to the Council on Judicial Complaints or the Oklahoma Bar Association, as the facts may warrant. As may be appropriate, the Committee on Judicial Elections may refer its file, findings, conclusions and recommendations for discipline to the Council on Judicial Complaints or the Oklahoma Bar Association. DEFINITIONS “Business Day” — The term “business day” in these rules shall include all the days of the week Monday through Friday except for legal holidays recognized by the state of Oklahoma. “Committee” — The term Committee in these rules means the Committee on Judicial Elections. “Complaint” — the term “complaint” refers to the original complaint and/or any amended complaint which is filed. “Filing” — Filing may be accomplished by personal delivery during regular business hours, by facsimile, e-mail or any form of overnight mail delivery requiring certification of delivery. If the filing is made by facsimile or e-mail, a copy shall also be sent by overnight mail delivery. “Forum” — A forum for purposes of the rules can include an organization, group of people or any form of publication including written, television, radio or digital media.
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“Forward� — Forwarding may be accomplished by personal delivery during regular business hours or by facsimile, e-mail or any form of overnight mail delivery requiring certification of delivery. If made by facsimile or e-mail, a copy shall also be sent by overnight mail delivery. “Remedial action� — Remedial action shall include all of those actions which a Hearing Panel may impose or require as specified in Rule 3 J of these rules. “Service� — Service may be accomplished by personal delivery during regular business hours or by facsimile, e-mail or any form of overnight mail delivery requiring certification of delivery. If made by facsimile or e-mail, a copy shall also be sent by overnight mail delivery. “Submit� — Submitting may be accomplished by personal delivery during regular business hours or by e-mail, facsimile or any form of overnight mail delivery requiring certification of delivery. If made by e-mail, facsimile or a copy shall also be sent by overnight mail delivery.
invites alumni and friends to a luncheon and panel discussion during the OBA Annual Conference Luncheon 8FEOFTEBZ /PWFNCFS r Q N Crowne Plaza Hotel, Tulsa Ballroom North 100 East Second Street, Tulsa, OK 3FTFSWBUJPOT 3FRVJSFE r 5JDLFUT 3471 CZ /PWFNCFS UP A
Featured Luncheon Speaker Jamie McDonald
TU Visiting Assistant Professor of Law, former Clerk for U.S. Chief Justice John G. Roberts, Jr. iĉF 4VQSFNF $PVSU "O 0WFSWJFX GSPN B -BX $MFSL T 1FSTQFDUJWFu
A The University of Oklahoma College of Law is excited to launch an extensive hiring campaign to recruit top-flight faculty in the next several years. Over the past decade, the law school has built world-class facilities, attracted exceptional students, and dramatically increased endowed faculty positions and resources. With a new dean, we are committed to building on this momentum and this year seek to hire up to three faculty candidates for tenure-track or tenured positions. We have particular curricular needs in Contracts, Criminal Law and Procedure, International Law, Skills, and upper-level courses in these areas. In addition, we invite highly-qualified applicants regardless of field. As an equal opportunity employer, the University of Oklahoma encourages applications from women, members of minority groups, and others who would further diversify our faculty. Applicants should possess a J.D. or equivalent academic degree, strong academic credentials, and a commitment to excellence in teaching and scholarship. Application review will begin immediately but the positions will remain open until filled. Please contact Katheleen Guzman, Chair of Faculty Appointments Committee, University of Oklahoma College of Law, 300 Timberdell Rd., Norman, OK 73019 [kguzman@ou.edu].
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Honored Alumni Edwin W. Parker II (JD ’69), Outstanding Senior Alumnus William Chad McLain (JD ’01), Outstanding Junior Alumnus Hugh M. Robert (BA ’98, JD ’08), Outstanding Junior Alumnus OBA Outstanding Student Award Philip Tinker OBF Fellows Scholarship Recipient Bradley J. Brown
Panel Discussion Tuesday, November 16 r 6:00 P.M.
TU’s +PIO 3PHFST )BMM r 1SJDF 5VSQFO $PVSUSPPN 'SFF BOE PQFO UP UIF QVCMJD r 3FDFQUJPO GPMMPXT
The Oklahoma Bar Journal
OBA President and TU Law Alumnus Allen Smallwood ( JD ’74) will give an address and moderate a panel discussion with the leaders of Lawyers Helping Lawyers and the Work-Life Balance Committee about the stresses of the profession. The University of Tulsa is an EEO/AA institution.
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BAR NEWS
2011 OBA Board of Governors Vacancies Nominating Petition Deadline was 5 p.m. Friday, Sept. 17, 2010
OFFICERS
Summary of Nominations Rules
President-Elect Current: Deborah Reheard, Eufaula Ms. Reheard automatically becomes OBA president Jan. 1, 2011 (One-year term: 2011) Nominee: Cathy Christensen, Oklahoma City
Vice President Current: Mack K. Martin, Oklahoma City (One-year term: 2011) Nominee: Reta M. Strubhar, Piedmont
BOARD OF GOVERNORS Supreme Court Judicial District Two Current: Jerry L. McCombs, Idabel Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, Pushmataha and Sequoyah Counties (Three-year term: 2011-2013) Nominee: Gerald C. Dennis, Antlers Supreme Court Judicial District Eight Current: Jim T. Stuart, Shawnee Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, Payne, Pontotoc, Pottawatomie and Seminole Counties (Three-year term: 2011-2013) Nominee: Scott Pappas, Stillwater Nominee: Gregg W. Luther, Shawnee Supreme Court Judicial District Nine Current: W. Mark Hixson, Yukon Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman Counties (Three-year term: 2011-2013) Nominee: O. Christopher Meyers, Lawton Member-At-Large Current: Jack L. Brown, Tulsa (Three-year term: 2011-2013) Nominee: Renée DeMoss, Tulsa Nominee: Kimberly K. Hays, Tulsa Nominee: Mack K. Martin, Oklahoma City Vol. 81 — No. 28 — 10/16/2010
Not less than 60 days prior to the Annual Meeting, 25 or more voting members of the OBA within the Supreme Court Judicial District from which the member of the Board of Governors is to be elected that year, shall file with the Executive Director, a signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Governors for and from such Judicial District, or one or more County Bar Associations within the Judicial District may file a nominating resolution nominating such a candidate. Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA from any or all Judicial Districts shall file with the Executive Director, a signed petition nominating a candidate to the office of Member-At-Large on the Board of Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for this office. Not less than 60 days before the opening of the Annual Meeting, 50 or more voting members of the Association may file with the Executive Director a signed petition nominating a candidate for the office of President-Elect or Vice President or three or more County Bar Associations may file appropriate resolutions nominating a candidate for the office. If no one has filed for one of the vacancies, nominations to any of the above offices shall be received from the House of Delegates on a petition signed by not less than 30 delegates certified to and in attendance at the session at which the election is held. See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure. Vacant positions will be filled at the OBA Annual Meeting Nov. 17-19. Terms of the present OBA officers and governors listed will terminate Dec. 31, 2010. Nomination and resolution forms can be found at www.okbar.org.
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CLASSIFIED ADS SERVICES
SERVICES
HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION
FREELANCE BOOK LAWYER — with highest rating and with 25+ years’ experience on both sides of the table is available for strategic planning, legal research and writing in all state and federal trial and appellate courts and administrative agencies. Admitted and practiced before the United States Supreme Court. Janice M. Dansby, 405-833-2813, jdansby@concentric.net.
Board Certified Diplomate — ABFE Life Fellow — ACFE
Court Qualified Former OSBI Agent FBI National Academy
Arthur D. Linville (405) 636-1522 INTERESTED IN PURCHASING PRODUCING & NON-PRODUCING Minerals; ORRI; O & G Interests. Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) 755-7200; Fax (405) 755-5555; E-mail: pcowan@cox.net.
WORKERS’ COMPENSATION REFERRALS APPRECIATED: Referral Fees Paid; Berry, Inhofe & Otterson PLLC (918) 431-0090.
OF COUNSEL LEGAL RESOURCES — SINCE 1992 — Exclusive research & writing. Highest quality: trial and appellate, state and federal, admitted and practiced U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf (405) 728-9925, marygaye@cox.net.
LUXURY OFFICE SPACE - THREE OFFICES: One executive corner suite with fireplace ($1,200/month) and two large offices ($850 each/month). All offices have crown molding and beautiful finishes. A fully furnished reception area, conference room and complete kitchen are included, as well as a receptionist, high-speed internet, fax, cable television and free parking. Completely secure. Prestigious location at the entrance of Esperanza located at 153rd and North May, one mile north of the Kilpatrick Turnpike and one mile east of the Hefner Parkway. Contact Gregg Renegar at (405) 285-8118.
EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL Fitzgerald Economic and Business Consulting Economic Damages, Lost Profits, Analysis, Business/ Pension Valuations, Employment, Discrimination, Divorce, Wrongful Discharge, Vocational Assessment, Life Care Plans, Medical Records Review, Oil and Gas Law and Damages. National, Experience. Call Patrick Fitzgerald. (405) 919-2312. Appeals and litigation support — Expert research and writing by a veteran generalist who thrives on wide variety of projects, big or small. Cogent. Concise. Nancy K. Anderson, (405) 682-9554, nkanderson@hotmail.com. TRAFFIC ACCIDENT RECONSTRUCTION A.C.T.A.R. Certified Reconstructionist Over 36 Years experience based in Norman, Oklahoma ROBERT W. POST Telephone: (405) 990-7610
Email: rwpost@PostAccidentReconstruction.com For more information visit website: www.PostAccidentReconstruction.com
Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. box 13557, Denver, CO 80201.
EASTRIDGE INVESTIGATIONS LLC 405-831-9829 www.eastridgepi.com “25 years of law enforcement investigative experience, specializing in suspicious death cases”
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OFFICE SPACE
Office Suites in MidTown Historic building with warmth & character, newly renovated Free utilities, wireless & conference room $400 per suite 725 NW 11th. Shown by appointment – call (405) 205-1124
OFFICE SHARE SHARED LUXURY OFFICE SPACE: Luxury all around...Granite, Wood, Slate Tile. Feel like you are working out of a beautiful home. Mix and match offices to suit your needs. We have an extra large upstairs space ($1,300), large corner office ($1,000), large office ($900), and 2 small offices ($695 each) as well as a reception area available. Included are an exquisite conference room, full kitchen and shared amenities available (phones, fax, cable and copier). Times are tough...we’re willing to work with you! Quail Pointe Suites – 13924 Quail Pointe Drive. Just West of May & Memorial off the Kilpatrick Turnpike. Please call Gina (405) 826-8188.
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POSITIONS AVAILABLE
POSITIONS AVAILABLE
LESTER, LOVING & DAVIES PC, an AV-rated law firm, seeks an associate with minimum 5-7 years litigation experience. Send resume to Lester, Loving & Davies PC, 1701 South Kelly Ave., Edmond, OK 73013.
SMALL LITIGATION FIRM practicing in all areas of law seeks associate with 1 – 3 years experience. Mail your resume to 6005 Chestnut Court, Edmond, OK 73025. SMALL LAW FIRM HAS A POSITION AVAILABLE for an attorney with 4-8 years of litigation experience. This position will involve specialized litigation in the field of eminent domain. Qualified candidate must have extensive litigation experience. To be considered, candidate must also possess experience in drafting motions, briefs and conducting all phases of pretrial discovery. Please send resume and salary requirements to “Box K,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. AV RATED OKC INSURANCE DEFENSE LITIGATION FIRM seeks associate with 3-5 years experience. Salary commensurate with experience. Please send resumes to “Box F,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
SECREST HILL BUTLER & SECREST, an AV-Rated insurance defense firm, is seeking an associate with 5+ years of experience. Emphasis on legal research, writing and litigation. Experience in employment law an asset. Salary to be commensurate with experience. All applications will remain confidential. Contact Joe Pickard at JPickard@secresthill.com or (918) 494-5905. THE UNIVERSITY OF OKLAHOMA COLLEGE OF LAW Director of Legal Research, Writing and Advocacy: The University of Oklahoma College of Law seeks a Director of Legal Research, Writing and Advocacy. The director administers and leads the college’s Legal Research, Writing and Advocacy Program, which includes three other full-time legal writing professors. In addition to acting as administrator for the program, the director teaches two sections of the two-semester legal writing course for first year law students (45 students). The director may teach one or two additional courses based on the successful candidate’s qualifications, interests and the College of Law’s curricular needs. The director trains and orients new legal writing faculty members; participates in the orientation program for incoming first-year law students; with the other legal writing faculty, prepares the syllabi and the common writing problems used by all sections; chairs weekly meetings of the legal research and writing faculty to discuss class content, teaching methods and related questions; handles student issues related to the legal writing program; coordinates with the director of competitions to organize the first-year Moot Court program and oversees the selection of legal writing award and prize recipients. As chair of the Legal Writing Committee, the director participates in evaluating the performance of the legal writing faculty and in screening candidates for legal writing positions. The director may be assigned additional administrative duties, including responsibility for the College of Law’s pro bono and public interest program, based on need and successful candidate’s experience and interests. The College of Law seeks candidates with a Juris Doctor from an ABA accredited law school, a distinguished academic record, and a serious commitment to students. The successful candidate will report directly to the dean and, after a probationary period, will be eligible for a renewable, fiveyear appointment at the assistant professor level. Salary commensurate with experience. Applicants should submit a resume, references and cover letter to Professor Randall T. Coyne, Chair of the Search Committee, at the University of Oklahoma College of Law, 300 Timberdell Road, Norman, OK 73019 or fax to (405) 325-0389. Applications will be considered if received by Nov. 16, 2010, or until the position is filled. The University of Oklahoma College of Law is an Equal Opportunity/ Affirmative Action Employer.
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DOBBS & MIDDLETON, Staff Counsel for Farmers since 1993, seeks an associate with 2-5 years of litigation experience, including 1st chair trial experience. Candidates must have good written, verbal, people and computer skills. Experience in insurance defense an asset. The position requires some same day in-state travel. The ideal candidate will assume an immediate case load with increasing responsibilities. Farmers offers an excellent starting salary and benefits package and is an equal opportunity employer. All applicants must apply, in confidence, and submit a resume via www.farmers.com. Potential candidates may contact our firm to discuss the position and expectations. NORTHEASTERN OKLAHOMA LAW FIRM seeks attorney with 2-5 years experience in real property law, real estate transactions, oil and gas, ability to read abstracts and appear in court. Send resume and writing sample to “Box D,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. OK INSURANCE DEPARTMENT JOB OPENING: Attorney III, underfill as Attorney II. Insurance or Financial experience preferred. For complete job description and requirements go to www.oid.ok.gov. Fax: (405) 522-8969. AA/EEO. FRONT DESK RECEPTIONIST OK Insurance Dept: Back up front desk receptionist. General clerical duties in legal division. For complete job description and requirements go to www.oid.ok.gov. Fax: (405) 522-8969. AA/EEO. DELAWARE RESOURCE GROUP OF OKLAHOMA LLC seeks a paralegal. Paralegal will support the general counsel. Must possess 1-3 years of experience in legal research and writing. Experience in Federal Contracting a plus. Full-time position. Please submit a cover letter, resume, writing sample and salary requirement to dwatson@buseygroup.com.
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POSITION WANTED RETIRED, LICENSED OKC ATTORNEY SEEKING LEGAL ASSISTANT POSITION that requires a highly motivated, self-sufficient, knowledgeable, experienced and skilled individual in the operation of a law office or corporate law department. Law Review, Top 10%. Will do anything from routine paralegal duties to assisting busy attorneys with appropriate legal work. Do not require health or related benefits. Salary negotiable, commensurate with expected tasks. E-mail Hjbenson1@cox.net or call (405) 947-4868.
You are not alone.
FOR SALE LAWTON OFFICE BLDG. FOR SALE BY AUCTION OCT. 21, 2010, 10 a.m. (Thurs.) 3900 sq.ft.; best office location; former law office for five attorneys and six support personnel. Contact donarmes.com or Ted Warkentin at (580) 284-0044 (to inspect). H. Allen Johnson, seller.
CLASSIFIED INFORMATION CLASSIFIED RATES: One dollar per word per insertion. Minimum charge $35. Add $15 surcharge per issue for blind box advertisements to cover forwarding of replies. Blind box word count must include “Box ____ , Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and rates. DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in writing stating number of times to be published to: Jeff Kelton, Oklahoma Bar Association P.O. Box 53036, Oklahoma City, OK 73152 E-mail: jeffk@okbar.org Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory.
Men Helping Men October 28
The Best Plan for Me Time - 5:30-7 p.m. Location
The Oil Center – West Building 1st Floor Conference Room 2601 NW Expressway Oklahoma City, OK 73112
* Food and drink will be provided! * Meetings are free and open to male OBA members. * Reservations are preferred. (We want to have enough space and food for all.) For further information and to reserve your spot, please e-mail stephaniealton@cabainc.com.
L AWYERS HELPING L AWYERS ASSISTANCE PROGRAM 2390
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Vol. 81 — No. 28 — 10/16/2010
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