Oklahoma Bar Association Has Presented to the Oklahoma Supreme Court a New Rule to Be Added As Rule 31 to the Rules of the District Courts for the State of Oklahoma

Volume 80 u No. 5 u Feb. 21, 2009

Court Material Supreme Court Requests Comments from OBA Members

New Rule Proposed for Rules of the District Courts

The Board of Governors of the Oklahoma Bar Association has presented to the Oklahoma Supreme Court a new rule to be added as Rule 31 to the Rules of the District Courts for the state of Oklahoma. The complete text of the proposed rule is set forth below. Prior to adoption, amendment or rejection of the proposed rule, the Oklahoma Supreme Court has requested that an opportunity for comment be allowed. Written comments shall be submitted by March 2, 2009, to John Morris Williams, Executive Director, Oklahoma Bar Association at P.O. Box 53036, Oklahoma City, OK 73152-3036 or electronic comments shall be sent to [email protected]. Rule 31. Conduct During Depositions A. Objections to questions during an oral deposition are limited to “Objection, leading” and “Objection, form.” Objections to testimony during the deposition are limited to “Objection, nonresponsive.” These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the deposition to be later raised in court. Argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition or assessing court or other sanctions. B. An instruction to a deponent not to answer a question shall be limited to the grounds set forth in Section 3230 E. 1. of the Discovery Code, 12 O.S. 2001 § 3230 E. 1. The attorney instructing the witness not to answer shall give a concise, nonargumentative, nonsuggestive explanation of the grounds for the instruction if requested by the party conducting the examination. C. Counsel and a witness shall not engage in private, off-the-record conferences during the actual taking of the deposition, except for the purpose of deciding whether to assert a privilege or to move for a protective order. Private conferences may be held, however, during agreed recesses and adjournments.

314 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 OFFICERS & BOARD OF GOVERNORS Jon K. Parsley, President, Guymon Allen M. Smallwood, President-Elect, Tulsa Linda S. Thomas, Vice President, Bartlesville events Calendar J. William Conger, Immediate Past President, Oklahoma City FEBRUARY 2009 Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami 23 Administrative Law Judges Meeting; 12 p.m.; Oklahoma Bar Center, Cathy Christensen, Oklahoma City Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Gary Payne Donna Dirickson, Weatherford (405) 271-1269 Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon 24 Death Oral Argument; Richard Norman Rojem; D-2007-660; 10 a.m.; Jerry L. McCombs, Idabel Court of Criminal Appeals Courtroom Lou Ann Moudy, Henryetta OBA Bar Center Facilities Committee Meeting; 2 p.m.; Oklahoma Bar Deborah Reheard, Eufaula Center, Oklahoma City; Contact: J. William Conger (405) 208-5845 Peggy Stockwell, Norman James T. Stuart, Shawnee 24-27 OBA Bar Examinations; 8 a.m.; Oklahoma Bar Center, Oklahoma City; Richard Rose, Oklahoma City, Chairperson, Contact: Board of Bar Examiners (405) 416-7075 OBA/Young Lawyers Division 28 OBA Law-related Education Representative Democracy in America BAR Center Staff Teacher Training; 8 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams, Executive Director; Jane McConnell (405) 416-7024 Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of MARCH 2009 Communications; Craig D. Combs, Director of Ad- ministration; Gina L. Hendryx, Ethics Counsel; Jim 3 OBA High School Mock Trial Finals; OU Law School; Bell Courtroom; Calloway, Director of Management Assistance Pro- Norman, Oklahoma; Contact: Judy Spencer (405) 755-1066 gram; Rick Loomis, Director of Information Systems; Beverly S. Petry, Administrator MCLE Commission; 5 OBA Diversity Committee Meeting; 3 p.m.; Oklahoma Bar Center, Jane McConnell, Coordinator Law-related Educa- Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Linda L. tion; Janis Hubbard, First Assistant General Coun- Samuel-Jaha (405) 290-7030 sel; Mark Davidson, Loraine Dillinder Farabow 6 Civil Oklahoma Uniform Jury Instructions Meeting; 10 a.m.; and Janna D. Hall, Assistant General Counsels; Oklahoma Bar Center, Oklahoma City; Contact: Chuck Adams (918) 631-2437 Robert D. Hanks, Senior Investigator; Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Oklahoma Trial Judges Association Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: A.J. Henshaw (918) 775-4613 Nina Anderson, Manni Arzola, Jenn Barrett, Debbie Brink, Melissa Brown, Brenda Card, OBA Law Day Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Sharon Dotson, Johnny Marie Floyd, Matt Gayle, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Tina Izadi Susan Hall, Brandon Haynie, Suzi Hendrix, (405) 521-4274 Misty Hill, Debra Jenkins, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee 10 OBA Women in Law Committee Meeting; 3 p.m.; Oklahoma Bar Center, Montgomery, Wanda Reece-Murray, Tracy Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Deborah Reheard Sanders, Mark Schneidewent, Robbin Watson, (918) 689-9281 Laura Willis & Roberta Yarbrough 11 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar EDITORIAL BOARD Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Sharisse Editor in Chief, John Morris Williams, News & O’Carroll (918) 584-4192 Layout Editor, Carol A. Manning, Editor, Melissa 13 Oklahoma Bar Foundation Trustee Meeting; 12 p.m.; Oklahoma Bar DeLacerda, Stillwater, Associate Editors: Scott Center, Oklahoma City; Contact: Nancy Norsworthy (405) 416-7070 Buhlinger, Bartlesville; Emily Duensing, Tulsa; John Munkacsy, Lawton; Pandee Ramirez, Ok- OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center, mulgee; Julia Rieman, Enid; James Stuart, Shaw- Oklahoma City and OSU Tulsa; Contact: Lynn S. Worley (918) 747-4600 nee; Leslie D. Taylor, Oklahoma City; Judge Lori or Noel Tucker (405) 348-1789 M. Walkley, Norman; January Windrix, Poteau For more events go to www.okbar.org/news/calendar.htm NOTICE of change of address (which must be in writing and signed by the OBA member), The Oklahoma Bar Association’s official Web site: www.okbar.org undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar should be sent to the Oklahoma Bar Association, Association. All rights reserved. Copyright© 20082009 Oklahoma Bar Association. P.O. Box 53036, Oklahoma City, OK 73152-3036. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried Oklahoma Bar Association (405) 416-7000 in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Toll Free (800) 522-8065 FAX (405) 416-7001 Continuing Legal Education (405) 416-7006 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Ethics Counsel (405) 416-7083 a month in january, February, March, April, May, August, Septem- General Counsel (405) 416-7007 ber, October, November and December and bimonthly in June and Law-related Education (405) 416-7005 July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Lawyers Helping Lawyers (800) 364-7886 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Mgmt. Assistance Program (405) 416-7008 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mandatory CLE (405) 416-7009 tions are $55 per year except for law students registered with the OBJ & Communications (405) 416-7004 Oklahoma Bar Association, who may subscribe for $25. Active mem- Board of Bar Examiners (405) 416-7075 ber subscriptions are included as a portion of annual dues. Any Oklahoma Bar Foundation (405) 416-7070 opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 315 OBA SEEKS GENERAL COUNSEL

The Oklahoma Bar Association, an integrated bar association of 16,000 members, seeks a General Counsel. The Office of the General Counsel acts as chief disciplinary counsel supervising a staff of 12 and as counsel to the Association on other legal matters.

The successful candidate must have a minimum of 10 years of practice experience and be (or become) a member in good standing of the Oklahoma Bar Association. Competitive salary and generous benefit package.

Application and complete job description are available by going to www.okbar.org/generalcounselsearch.htm or by writing to:

General Counsel Search Committee P.O. Box 53036 Oklahoma City, OK 73152

All applications will be kept confidential. The Oklahoma Bar Association is an equal opportunity employer.

APPLICATION DEADLINE EXTENDED TO FEB. 27, 2009 AT 5 P.M.

316 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 Oklahoma Bar Association

table of contents Feb. 21, 2009 • Vol. 80 • No. 5 page 315 Events Calendar 318 Index to Court Opinions 319 Supreme Court Opinions 342 Court of Criminal Appeals Opinions 380 Court of Civil Appeals Opinions 391 Disposition of Cases Other Than By Publication

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 317 Index To Opinions Of Supreme Court

2008 OK 105 TED KRUCHOWSKI, GERALD ADAMS, WILLIAM COOPER, TONY FEN- NELL, ALAN GEBERT, HAROLD GRIFFIN, STAN HARRIS, FORD HENDERSHOT, ED RISENHOOVER, SUSAN ROGERS, LINDA SLABAUGH, and JOEL WHITE, Plaintiffs, v. THE WEYERHAEUSER COMPANY, Defendant. and LARRY THOMP- SON, Plaintiff, v. THE WEYERHAEUSER COMPANY, Defendant 104,872...... 3 1 9 Notice Concerning Automatic Revocation of Certified and Licensed Shorthand Report- ers for Failure to Fulfill Continuing Education Requirements for Calendar Year 2007 SCAD NO. 2009-7...... 3 1 9 2009 OK 7 IN THE MATTER OF THE REINSTATEMENT OF CARL KESSINGER TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD No. 5441...... 3 2 0 2008 OK 39 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Com- plainant, v. JAMES E. GOLDEN, JR., Respondent. OBAD No. 1738 SCBD-5386...... 3 2 0 2009 OK 8 STATE OF OKLAHOMA ex rel., Oklahoma Bar Association, Complainant, v. RONALD WAYNE PHELPS, Respondent. SCBD NO. 5481...... 3 2 0 2009 OK 12 Wilspec Technologies, Inc., an Oklahoma corporation, Plaintiff, v. DunAn Holding Group Co., LTD. formerly known as DunAn Group Co. LTD., formerly known as Zhejiang DunAn Group Co. LTD., a Chinese corporation, Defendants. No. 106,174...... 3 2 2 2009 OK 9 IN THE MATTER OF REINSTATEMENT OF: FRANKLIN J. PACENZA, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS. SCBD-5432...... 3 2 6 2009 OK 11 STATE OF OKLAHOMA, ex rel. OKLAHOMA TAX COMMISSION, Plain- tiff/Appellant, v. SUN COMPANY, INC. (R&M), a corporation, Defendant/Appellee. No. 103,776...... 3 3 4 2009 OK 10 DONNA FLETCHER, Plaintiff/Appellant, v. MICHAEL MONROE, Defen- dant/Appellee. No. 104,364...... 3 3 6

Index To Opinions Of Court of Criminal Appeals

2009 OK CR 3 KATHERINE RUTAN a/k/a KATHERINE POLLARD, Appellant, v. STATE OF OKLAHOMA Appellee. Case No. F-2007-1022...... 3 4 2 2009 OK CR 1 JARED WILLIAM JONES, Appellant v. STATE OF OKLAHOMA, Appel- lee. Case No. D-2005-599...... 3 5 5

Index To Opinions Of Court of Civil Appeals

2009 OK CIV APP 6 HOLDEN, P.C., d/b/a HOLDEN & CARR, Plaintiff/Appellee, v. ALI SEZGIN, Defendant/Appellant, Stephen J. Capron, and Capron & Edwards, P.C., Defendants. Case No. 105,047...... 3 8 0 2009 OK CIV APP 5 NANCY DOYLE, Plaintiff/Appellant, v. JEREMY SMITH and DANA SMITH, Defendants/Appellees, and JAMES A. SMITH and DOROTHY L. SMITH, Plaintiffs/Appellees, v. NANCY DOYLE, Defendant/Appellant. Case 104,698...... 3 8 1

318 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 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)

2008 OK 105 calendar year 2007 continuing education TED KRUCHOWSKI, GERALD ADAMS, requirements with the Administrative Office of WILLIAM COOPER, TONY FENNELL, the Courts by the close of business on Decem- ALAN GEBERT, HAROLD GRIFFIN, STAN ber 31, 2008. HARRIS, FORD HENDERSHOT, ED The license or certificate of each such person RISENHOOVER, SUSAN ROGERS, LINDA was automatically revoked, without further SLABAUGH, and JOEL WHITE, Plaintiffs, v. action of the Supreme Court or the Oklahoma THE WEYERHAEUSER COMPANY, Board of Examiners of Official Shorthand Defendant. and LARRY THOMPSON, Reporters, effective December 31, 2008, pursu- Plaintiff, v. THE WEYERHAEUSER COMPANY, Defendant. ant to Rule 4 of the Rules Governing Disciplin- ary Proceedings of the State Board of Examin- No. 104,872. February 11, 2009 ers (20 O.S. Chapter 20, Appendix 2, Rule 4). CORRECTION ORDER Therefore, under authority of Article 7, It is hereby ordered that the typewritten Section 6 of the Oklahoma Constitution and opinion in the above styled and numbered Section 1501 of Title 20 of the Oklahoma Stat- cause on December 16, 2008, is hereby correct- utes, the Supreme Court gives notice that a ed as follows: person whose license or certificate has been revoked may not engage in shorthand report- p. 20 The second paragraph, mislabeled ¶31, should be labeled ¶32 ing in this state. (Section 20 O.S. § 1503). pp. 20-23 The successive paragraphs should Reinstatement of a court reporter whose be corrected accordingly so that the license has been revoked is controlled by Rule final paragraph on page 23 is 9 of the Rules Governing Disciplinary Proceed- labeled ¶37. ings of the State Board of Examiners (20 O.S. Chapter 20, Appendix 2, Rule 4). In all other respects, the opinion of December 16, 2008, shall remain unaffected by this correc- The Administrative Office of the Courts is tion order. directed to mail a copy of this notice to each person named in Exhibit A at the last known DONE BY ORDER OF THE SUPREME COURT THIS 11th DAY OF FEBRUARY, 2009. address of the person as provided to the Board, the Secretary of the Board, or the Administra- /s/ tive Office of the Courts. James E. Edmondson CHIEF JUSTICE Approved this 16th day of January, 2009 Notice Concerning Automatic Revocation of /s/ Certified and Licensed Shorthand Reporters James E. Edmondson for Failure to Fulfill Continuing Education Chief Justice Requirements for Calendar Year 2007 EXHIBIT A SCAD NO. 2009-7. January 16, 2009 For Publication in OBJ Only COURT REPORTER LICENSE NUMBER Julia Brown 921 NOTICE CONCERNING AUTOMATIC Francheska Duffey 1880 LICENSE REVOCATION FOR FAILURE TO Catherine Goins 1650 FULFILL CONTINUING EDUCATION Billie McCabe 810 REQUIREMENTS Katherine Powell 1555 Each of the persons named in the attached Melvin Power 1864 Exhibit failed to file a compliance report for Lisa Sparks 1840

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 319 2009 OK 7 ¶2 The last sentence in ¶ 4 of the opinion shall be deleted and shall be replaced with the IN THE MATTER OF THE following: REINSTATEMENT OF CARL KESSINGER TO MEMBERSHIP IN THE OKLAHOMA The OBA filed a brief in support of final BAR ASSOCIATION AND TO THE ROLL imposition of discipline which set forth OF ATTORNEYS authority strongly supporting Golden’s disbarment. SCBD No. 5441. January 26, 2009 ¶3 The last sentence of ¶ 9 of the opinion ORDER shall be deleted and shall be replaced with the ¶1 On de novo examination of the paperwork following: on file and of the transcript and record of pro- We reject the character letters which their ceedings before the Professional Responsibility authors wrote to the sentencing judge for Tribunal’s assigned trial panel, the court finds the purpose of seeking leniency in a crimi- that the applicant established by clear and con- nal sentencing after a guilty plea. Respon- vincing proof that: dent has neither presented convincing argument that those letters are relevant to (1) he is a person of ethical fitness, the issues concerning mitigation of profes- (2) he has not engaged in the unauthorized sional discipline before us, nor proof that practice of law in this State since 6 Decem- their authors authorized the letters to be ber 1991 when he voluntarily relinquished presented to this body for that purpose. his Oklahoma law license, and ¶4 The Opinion shall otherwise remain as (3) the applicant is competent and learned filed on April 22, 2008. in the law of this State to qualify for rein- ¶5 Rehearing of the Opinion, as herein statement without examination. amended, is denied. ¶2 The applicant’s license to practice law in DONE BY ORDER OF THE SUPREME the State of Oklahoma shall stand reinstated COURT THIS 22nd DAY OF JANUARY, 2009. upon his payment, within 10 days of the date hereof, of the assessed costs of this proceeding /s/ in the sum of $478.65. James E. Edmondson CHIEF JUSTICE ¶3 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 26th DAY OF ¶6 EDMONDSON, C.J., TAYLOR, V.C.J., WATT, WINCHESTER, COLBERT, JJ. - Concur. JANUARY, 2009. ¶7 HARGRAVE, OPALA, REIF, JJ. - Disquali- /s/ fied. James E. Edmondson CHIEF JUSTICE ¶8 KAUGER, J. - Recused. ¶4 ALL JUSTICES CONCUR 2009 OK 8 2008 OK 39 STATE OF OKLAHOMA ex rel., Oklahoma Bar Association, Complainant, v. RONALD STATE OF OKLAHOMA ex rel. WAYNE PHELPS, Respondent. OKLAHOMA BAR ASSOCIATION, Complainant, v. JAMES E. GOLDEN, SCBD NO. 5481. January 26, 2009 JR., Respondent. ¶0 ORDER APPROVING OBAD No. 1738 RESIGNATION FROM OKLAHOMA SCBD-5386 BAR ASSOCIATION PENDING January 22, 2009 DISCIPLINARY PROCEEDINGS ORDER CORRECTING OPINION AND ¶1 Before this Court is an affidavit filed by DENYING HEARING Ronald Wayne Phelps in the above-styled bar disciplinary action, pursuant to Rule 8.1, Rules ¶1 The Opinion of the Court filed herein on Governing Disciplinary Proceedings, 5 O.S. April 22, 2008 shall be corrected as follows. ch.1, App. 1A, requesting that he be allowed to

320 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 resign his membership in the Oklahoma Bar 6. Respondent has agreed to comply with Association and relinquish his right to practice Rule 9.1, Rules Governing Disciplinary law, and Complainant’s Application for Order Proceedings, and acknowledges that he Approving Resignation Pending Disciplinary may be reinstated to practice law only Proceedings. upon compliance with the conditions and procedures prescribed by Rule 11, Rules UPON CONSIDERATION OF THE ¶2 Governing Disciplinary Proceedings. MATTER WE FIND: 7. Respondent recognizes and agrees that 1. Respondent Ronald Wayne Phelps exe- he may not make application for rein- cuted his resignation pending disciplin- statement to membership in the Okla- ary proceedings on November 26, 2008. homa Bar Association prior to expiration 2. Respondent’s resignation was freely and of five years from the date of this order. voluntarily tendered; he was not acting 8. Respondent acknowledges that as a under coercion or duress and he was result of his conduct that the Client Secu- fully aware of the consequences of sub- rity Fund may receive claims from his mitting his resignation. former clients. 3. Respondent was aware that the follow- 9. Respondent has agreed to reimburse the ing grievances were lodged with the Client Security Fund the principal Office of the General Counsel of the amounts and applicable statutory inter- Oklahoma Bar Association and are pres- est for any claims the Oklahoma Bar ently being investigated: Association should approve, with the DC 07-297 alleging that he was charged payments being made prior to the filing in the District Court of the United States of any application for reinstatement. for the District of Sourth Carolina Green- 10. Respondent agrees that costs have been ville Division with Cournt One — Wire incurred by the Oklahoma Bar Associa- Fraud in violation of 18 U.S.C. § 1343 tion in the investigation of the above having knowledge of the actual commis- stated matters in the amount of $172.55 sion of a felony and concealment of the and has paid said amount to the Okla- same. He waived indictment and pled homa Bar Association on November 26, guilty on March 30, 2006 to Information 2008. charging Misprision of Felony in violation of 18 U.S.C. § 4. On June 7, 2007, as 11. Respondent acknowledges and agrees a result of this plea, he was sentenced to that he is to surrender his Oklahoma Probation for a term of one year. This Bar Association membership card to the conviction is a violation of Rules 8.4(b) Office of the General Counsel contem- and 8.4(c), Oklahoma Rules of Profes- poraneously with his resignation but sional Conduct, and Rule 1.3 of the Rules that he has not been able to locate it and Governing Disciplinary Proceedings, considers it lost. If located he will imme- and facially demonstrates his unfitness diately provide it to the office of the to practice law. General Counsel. 4. Respondent was aware that the burden 12. The resignation pending disciplinary of proof regarding the aforementioned proceedings executed by Respondent is complaints rests upon the Oklahoma Bar in compliance with Rule 8.1, Rules Gov- Association. Respondent waived any erning disciplinary Proceedings, 5 O.S. and all rights to contest the allegations. ch.1, App. 1A. 13. Respondent’s name and address appear 5. Respondent was aware that the com- on the official roster maintained by the plaints lodged and being investigated Oklahoma Bar Association as: Ronald concerning his conduct, if proven, would Wayne Phelps, OBA #7108, P.O. Box constitute violation of the Oklahoma 850374, Yukon, OK 73085-0374 Rules of Professional Conduct and the Oklahoma Rules Governing Disciplinary 14. Respondent’s resignation should be Proceedings. approved.

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 321 ¶3 IT IS THEREFORE ORDERED THAT District Court for the Western District of Okla- Complainant’s application and Respondent’s homa for hindering Plaintiff’s performance or resignation be approved. rendering Plaintiff’s performance more costly or burdensome in a contract between Plaintiff ¶4 IT IS FURTHER ORDERED THAT Respon- and a third party. That court has certified two dent’s name be stricken from the Roll of Attor- questions pursuant to the Revised Uniform neys, and that he make no application for Certification of Questions of Law Act, Okla. reinstatement to membership in the Oklahoma Stat. tit. 20, §§ 1601-1611 (2001): Bar Association prior to the lapse of five years from the date of this order. 1. Whether Oklahoma adopts Restatement (Second) of Torts § 766A, which states: ¶5 IT IS FURTHER ORDERED THAT Respon- dent comply with Rule 9.1 of the Rules Gov- One who intentionally and improperly erning Disciplinary Proceeding, 5 O.S. ch.1, interferes with the performance of a con- App. 1A. tract (except a contract to marry) between another and a third person, by preventing ¶6 DONE BY ORDER OF THE SUPREME the other from performing the contract or COURT IN CONFERENCE THIS 26th DAY OF causing his performance to be more expen- JANUARY 2009. sive or burdensome, is subject to liability to /s/ the other for the pecuniary loss resulting to James E. Edmondson him. CHIEF JUSTICE 2. If so, whether Oklahoma would permit ALL JUSTICES CONCUR punitive damages on such a claim. 2009 OK 12 In response, this Court adopts Restatement (Second) of Torts § 766A and holds that Okla. Wilspec Technologies, Inc., an Oklahoma Stat. tit. 23, § 9.1 (2001) is the statutory vehicle corporation, Plaintiff, v. DunAn Holding that governs all claims for punitive damages. Group Co., LTD. formerly known as DunAn Group Co. LTD., formerly known as FACTS Zhejiang DunAn Group Co. LTD., a Chinese ¶2 Pursuant to section 1604(A)(2) of title 20, corporation, Defendants. the federal court has submitted “[t]he facts rel- No. 106,174. February 10, 2009 evant to the question[s], showing fully the nature of the controversy out of which the CERTIFIED QUESTIONS OF LAW question[s] arose.” Those facts are repeated ¶0 The United States District Court, West- here, verbatim. ern District of Oklahoma, Honorable ¶3 Plaintiff, Wilspec Technologies, Inc., and Tim Leonard, certified two questions. defendant, DunAn Holding Group Co. Ltd., Question One addresses whether Okla- both design, manufacture, and sell parts for air homa has expressly or implicitly adopt- conditioning units. On November 20, 2002, ed Restatement (Second) of Torts § 766A. plaintiff entered into a three-year contract with Question Two inquires as to whether defendant’s predecessor in interest, Zhejiang Oklahoma would permit punitive dam- DunAn Group Co., Ltd. Pursuant to the con- ages on such a claim if recognized. tract, defendant was to manufacture various CERTIFIED QUESTIONS ANSWERED. heating ventilating and air conditioning (“HVAC”) parts for sale by plaintiff through- James E. Warner, III, Stephen R. Johnson, Hol- out North America. The products included, but laday & Chilton, PLLC, Oklahoma City, for were not limited to, certain air conditioning Plaintiff. parts known as service valves and reversing Charles B. Goodwin, Mack J. Morgan, III, valves, and were to be sold under the Wilspec Marie S. Johnston, Phillip L. Free, Jr., Crowe & brand. Plaintiff was designated the exclusive reseller or distributor for the products in the Dunlevy, Oklahoma City, for Defendant. North American market. COLBERT, J. ¶4 During the term of the contract, plaintiff ¶1 In an action for tortious interference, entered into multiple-year contracts to supply Plaintiff brought suit against Defendants in the service and reversing valves with three HVAC

322 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 manufacturers and secured the right to supply QUESTION 1 valves to other HVAC manufacturers on a INTENTIONAL INTERFERENCE WITH quote and purchase order basis. Plaintiff alleges ANOTHER’S PERFORMANCE OF HIS defendant intentionally interfered with plain- OWN CONTRACT tiff’s contractual or business relations with its HVAC customers by: (1) directly soliciting the ¶6 The Restatement Second of Torts presents sale of products and selling products to plain- various species of the intentional interference tiff’s existing and prospective customers in claim. An interference may be a: (1) section 766 North America; (2) unilaterally changing the interference with a third party’s performance contract price and payment terms; (3) refusing with an existing contract; (2) section 766A to manufacture and ship products without interference with plaintiff’s own performance; payment in advance; (4) failing to maintain or (3) section 766B interference with prospective contractual relations not yet reduced to design, manufacturing, and product quality contract.1 standards; (5) failing to build and ship products within the four week lead time specified in ¶7 It is well established that Oklahoma has the contract; (6) delivering defective, non-con- embraced two variations of the intentional tor- forming products; (7) refusing to manufacture tious interference claims found at sections 766 and ship components to plaintiff following ter- and 766B. The section 766 variation is illus- mination of the parties’ contract so plaintiff trated in Morrow Development Corp. v. Amer- could continue to serve customers with exist- ican Bank and Trust Co., 1994 OK 26, 875 P.2d ing contracts and purchase or supply agree- 411. Section 766 states: ments; and (8) making disparaging statements One who intentionally and improperly to plaintiff’s customers about plaintiff’s finan- interferes with the performance of a con- cial condition and ability to perform and tell- tract (except a contract to marry) between ing plaintiff’s customers that plaintiff had another and a third person by inducing or breached its contract with defendant. Plaintiff otherwise causing the third person not to claims that as a result of defendant’s actions, it perform the contract, is subject to liability was unable to meet its customers’ require- to the other for the pecuniary loss resulting ments in a timely manner and a number of its to the other from the failure of the third customers terminated their business with person to perform the contract. plaintiff. Restatement (Second) of Torts (1977). In Mor- ¶5 Plaintiff seeks actual and punitive dam- row, a borrow er and bank entered into a loan ages for defendant’s alleged intentional inter- agreement for the development of real proper- ference with its contractual and business rela- ty. The agreement required the borrower to tions. In support of this claim, plaintiff alleges it initiate a secondary contract engaging the ser- had contracts with numerous customers to sup- vices of a developer for management of the real ply them with components defendant agreed to estate project. Additionally, the primary agree- manufacture; defendant knew plaintiff had ment conditioned advances upon the sale of additional lots. The lot sales, however, never contracted with such customers; defendant occurred and bank demanded additional secu- knew plaintiff’s customers depended on plain- rity from borrower and threatened to initiate tiff to supply them with such components and foreclosure proceedings under Okla. Stat. tit. that a failure on defendant’s part to manufac- 12, § 686 (1991), if borrower failed to comply. In ture the components in conformity with the response, borrower executed a deed-in-lieu of 2002 Agreement would disrupt and possibly foreclosure2, transferring title to the mortgaged destroy plaintiff’s customer relations and result land to bank. The developer brought suit alleg- in significant economic harm to plaintiff; and ing that bank’s actions tortiously interfered defendant’s actions were not justified, war- with the developer-borrower contract. Devel- ranted, or excusable, but were carried out in oper claimed that the bank’s primary purpose furtherance of an unlawful scheme to intention- was to deprive the developer of its contractual ally undermine and eventually destroy plain- rights with borrower. Bank however, success- tiff’s contractual and business relations with its fully defended against developer’s claim customers so that defendant could sell the com- because bank’s conduct was privileged con- ponents directly to plaintiff’s customers. duct that gave bank a complete defense against

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 323 developer’s section 766 tortious interference 766A does not require a breach or nonperfor- claim. mance for liability to attach. However, in either case, the inducer either prevents or hinders the ¶8 In Brock v. Thompson, 1997 OK 127, 948 performance of a valid contract to which it is P.2d 279, this Court was presented with a sec- not a party. tion 766B-type3 interference with one’s advantageous business relations. In Brock, promoters ¶11 The policy reasons for recognizing a tor- of an initiative petition launched a campaign to tious interference claim under section 766A bring about tort reform. Their campaign includ- and section 766 are virtually the same. For the ed publishing statements relating to the trial past seventy-five years, and well before the lawyers and their profession. The trial lawyers passage of section 766A in 1979, this Court has asserted that the promoters “conspired to use repeatedly protected contractual relationships unlawful means” to bring about a change in between parties from unprivileged, unjusti- the fundamental law of the state which amount- fied, and inexcusable interference from one ed to inter alia, injury to their property interest who is not a party to the contract or business in their practiced profession. Promoters con- relation. See Crystal Gas Co. v. Oklahoma tended their activities were constitutionally Natural Gas. Co., 1974 OK 34, 529 P.2d 987; protected and that they were immune from Nat’l Life & Accident Ins. Co. v. Wallace, 1933 civil liability. This court concluded that the trial OK 160, 21 P.2d 492; Stebbins v. Edwards, 1924 lawyers’ claim for tortious interference was not OK 227, 224 P. 714; Schonwald v. Ragains, 1912 viable as promoter’s actions constituted politi- OK 210, 122 P. 203. In Stebbins v. Edwards, this cal free speech and was not unlawful. A section Court, stated: 766B claim of tortious interference with one’s advantageous business relations will only lie The common law seeks to protect every where a defendant has acted with unlawful person against the wrongful acts of others, means. whether committed alone or by combination, and an action may be had for injuries ¶9 What remains unclear is whether Okla- done which cause another loss in the enjoy- homa has recognized a cause of action under ment of any right or privilege or property section 766A. Section 766A provides: . . . . Losses willfully caused by another, One who intentionally and improperly from motives of malice, to one who seeks interferes with the performance of a con- to exercise and enjoy the fruits and advan- tract (except a contract to marry) between tages of his own enterprise, industry, skill, another and a third person, by preventing and credit, will sustain an action. It is clear the other from performing the contract or that it is unlawful and actionable for one causing his performance to be more expen- man, from unlawful motives, to interfere sive and burdensome, is subject to liability with another’s trade by fraud or misrepre- to the other for the pecuniary loss resulting sentation, or by molesting his customers, to him. or those who would be customers, or by preventing others from working for him, or Restatement (Second) of Torts (1979). This lan- causing them to leave his employ, by fraud guage is similar to section 766 which is part of or misrepresentation, or physical or moral our existing law. See Mac Adjustment, Inc. v. intimidation or persuasion, with an intent Prop. Loss Research Bureau, 1979 OK 41, 595 to inflict an injury which causes loss. P.2d 427. 1924 OK 227, ¶ 6, 224 P. 714, 715. ¶10 The core distinction between the torts described in section 766 and section 766A is to ¶12 Additionally, since our 1912 pronounce- whom the defendant’s conduct is targeted. Sec- ment in Schonwald, this Court has never affir- tion 766 focuses on conduct directed at a third matively drawn a distinction between a plain- party which induces the third party to breach tiff’s or third party’s nonperformance as a basis his contract with the plaintiff. Section 766A on for recognizing a tortious interference cause of the other hand, is concerned with conduct tar- action. 1912 OK 210, 122 P. 203. Maliciously geted at the plaintiff which hinders plaintiff’s interfering in a contract between two parties own performance or renders plaintiff’s perfor- and inducing one of them to break that con- mance more burdensome or costly. See Restate- tract to the injury of the other is an actionable ment (Second) of Torts § 766A, Comment C wrong against the inducer. Whether the induc- (1979). Additionally unlike section 766, section er procures a third party breach, as demon-

324 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 strated in section 766; makes plaintiff’s perfor- ¶14 In this Court’s view, section 766A is mance more oppressive, or in the most egre- another avenue to demonstrate tortious inter- gious of cases, procures plaintiff’s breach, as in ference. A section 766 tortious interference section 766A, the inducer’s actions are none- with a contractual relation claim and a section theless a tort. The harm a section 766A plaintiff 766B tortious interference with a business suffers is just as genuine and damaging as that relation claim have been previously recog- to the plaintiff in a section 766 claim.4 nized by this Court as viable causes of actions. Under existing Oklahoma law, sections 766 ¶13 Oklahoma does not stand alone in its and 766B require that the inducer act mali- view. The Supreme Judicial Court of Massa- ciously5 and improperly6 - the same elements chusetts decided a similar matter in Shafir v. required in a section 766A claim. John A. Steele, 727 N.E.2d 1140 (2000). In Shafir, a suc- Henry & Co., Ltd. v. T.G. & Y. Stores Co., 941 cessful bidder at a foreclosure sale sued a F.2d 1068, 1072 (10th Cir. 1991) (citing Over- newspaper-trust who previously owned and beck v. Quaker Life Ins. Co., 1984 OK CIV APP presently occupied a foreclosed property for 44, 757 P.2d 846). To predicate a cause of action intentionally interfering with bidder’s pur- solely on the identification of the breaching chase agreement with bank. Prior to the fore- party and to deny recovery where plaintiff’s closure sale, newspaper-trust worked out a performance is hindered or rendered more restructuring agreement with bank. The restruc- costly is without reason and a distinction this turing agreement permitted newspaper-trust Court refuses to draw. to repurchase the foreclosed property for ¶15 Presently, Oklahoma recognizes a tor- $100,000 below market value, provided that no tious interference claim with a contractual or third party outbid the newspaper-trust. The business relationship if the plaintiff can prove bank valued the property at $275,000. On the (1) the interference was with an existing con- day of the sale, newspaper-trust was outbid tractual or business right; (2) such interference and immediately launched a campaign of was malicious and wrongful; (3) the interfer- defamatory statements in the media and served ence was neither justified, privileged nor excus- successful bidder with a legal complaint charg- able; and (4) the interference proximately ing the bidder with fraud, extortion, and mali- caused damage. Mac Adjustment, Inc., 1979 cious interference with the restructuring agree- OK 41, ¶ 5, 595 P.2d 427, 428. Additionally, the ment. At trial, newspaper-trust admitted the claim is viable only if the interferor is not a complaint lacked a factual basis but delivered party to the contract or business relationship. it to the bidder nonetheless. Bidder, realizing Voiles v. Santa Fe Minerals, Inc., 1996 OK 13, that newspaper-trust’s harassment would not ¶ 18, 911 P.2d 1205, 1209. end, sent a letter to the bank declaring bidder’s ¶16 Although Defendants provide adverse intention not to close the sale and requesting authority from other jurisdictions, we believe bidder’s deposit be returned. In addition, bid- that where the law provides a remedy against der described (among other things) newspa- a tortfeasor who induces or causes a third per-trust’s intimidation tactics and stated that party not to perform the contract, the protec- she believed she would be facing litigation and tion against such tortious acts extends to a that newspaper-trust was unlikely to leave party who is unable to perform his/her con- willingly or pay rent. The bank refused to tract or where such performance becomes return bidder’s deposit and maintained its more costly or unduly burdensome. To hold right to recover additional expenses. The bank otherwise would unjustly enrich a tortfeasor eventually sold the property to newspaper- and leave a plaintiff less than whole. trust for $175,000. The Shafir court, acknowl- QUESTION TWO edging that no Massachusetts case had expressly adopted section 766A, affirmed the trial PUNITIVE DAMAGES court’s jury verdict for bidder. The Shafir court ¶17 The second question certified to this reasoned that the only difference between the Court inquires as to whether punitive damages torts described in sections 766 and 766A are the are permissible on a section 766A claim. Typi- nonperforming parties. The court explained cally, punitive damages are not recoverable that there was no compelling reason to deny solely for breach of contract obligations. How- recovery under section 766A, and that it “never ever, when a breach of obligations arises from specifically disavowed it.” Id. at 369. tortious conduct, as alleged in this case, puni-

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 325 tive damages may be recoverable.7 See, e.g., 5. The comment to the Oklahoma Uniform Jury Instruction (OUJI)(Civil) No. 24.2 provides: “[An] intentional interference may be Burk v. K-Mart Corp., 1989 OK 22, ¶17, 770 malice in the law without personal hatred, ill will, or spite.” This sec- P.2d 24, 28; See also Restatement (Second) Con- tion further describes a defendant’s conduct as intentional if the defendant “either desired to interfere with [Plaintiff]’s contract with [Third tracts § 355 (1981) (“Punitive damages are not Party], or [he/she/it] was substantially certain that his actions would recoverable for a breach of contract unless the interfere with the contract.” OUJI Civil 24.2. 6. The Oklahoma Uniform Jury Instruction (OUJI)(Civil) No. 24.1 conduct constituting the breach is also a tort comments provide the following factors to determine whether a for which punitive damages are recoverable”). defendant’s conduct was improper: 1. The nature of the defendant’s conduct; A tortious interference claim is predicated on 2. The defendant’s motive; the tort. Mac Adjustment, Inc., 1979 OK 41, 595 3. The interests of the plaintiff with which the defendant’s con- P.2d 427. duct interfered; 4. The interests sought to be advanced by the defendant; 5. The social interests in protecting the freedom of action of the ¶18 Punitive damages are awarded only in defendant and the contractual interests of the plaintiff; the most egregious circumstances and are 6. The proximity or remoteness of the defendant’s conduct to the interference claimed by the plaintiff; and aimed at punishing the offending party. In 7. The relationship among the plaintiff, [name of breaching addition to proving the elements of a tort, the party], and the defendant. plaintiff seeking punitive damages for tortious 7. Today’s answer to the second question posed does not assure the plaintiff that it will be entitled to an instruction on punitive damages. interference with a contract obligation must Until all the proof has been adduced and the case stands ready to be prove that the defendant acted either reckless- cleared for submission to the triers, neither this court nor the federal court whence the question came will be able to ascertain whether the ly, intentionally, or maliciously by clear and proof that will be adduced at trial would warrant a punitive damages convincing evidence. See Okla. Stat. tit. 23, charge to the jury. § 9.1 (2001). 2009 OK 9 CONCLUSION IN THE MATTER OF REINSTATEMENT ¶19 Today we recognize a plaintiff’s right to OF: FRANKLIN J. PACENZA, TO maintain a cause of action against an interferor MEMBERSHIP IN THE OKLAHOMA BAR when wrongful acts are aimed at hindering or ASSOCIATION AND TO THE ROLL OF otherwise rendering plaintiff’s performance ATTORNEYS. more costly or burdensome in a contact between SCBD-5432. February 10, 2009 plaintiff and a third party. Accordingly, this Court adopts Restatement (Second) of Torts, Petition for Reinstatement § 766A (1979), and holds that Okla. Stat. tit. 23, ¶0 Following a suspension of two years § 9.1 (2001), is the statutory vehicle that gov- and one day, the petitioner, Franklin J. erns all claims for punitive damages. Pacenza (Pacenza/attorney), sought rein- CERTIFIED QUESTIONS ANSWERED. statement to the respondent, Oklahoma Bar Association (Bar Association). The sus- ALL JUSTICES CONCUR. pension arose from the attorney’s dishon- est, fraudulent, deceitful, and misleading 1. The Restatement (Second) of Torts, § 766C also recognizes a negligent interference with either a contract or a prospective contrac- actions in a real estate transaction resulting tual relation. in significant economic harm, embarrass- 2. A defaulting borrower may avoid all in personam liability for a loan, including those claims arising under Okla. Stat. tit. 12, § 686 ment to the legal profession and to this (1991) for post-judgment deficiency by conveying an absolute deed Court, and an undermining of public confi- title to real property pledged as security for the indebtedness. This is dence in the Bar Association and its mem- known as a “deed-in-lieu of foreclosure.” Morrow, 1994 OK 26, ¶ 4 n.3, 875 P.2d 411 n. 3. bers. The Bar Association opposed rein- 3. The Restatement (Second) of Torts § 766B states: One who inten- statement. Although the trial panel of the tionally and improperly interferes with another’s prospective contractual relation (except a contract to marry) is subject to liability to the Professional Responsibility Tribunal found other for the pecuniary harm resulting from loss of the benefits of the that Pacenza had not engaged in the unau- relation, whether the interference consists of (a) inducing or otherwise thorized practice of law during his suspen- causing a third person not to enter into or continue the prospective relation or (b) preventing the other from acquiring or continuing the sion and had offered credible evidence of prospective relation. his competency and learning of the law, it 4. Moreover, permitting an injured party to recover even though it was he who had been induced by the defendant to break the con- determined that the attorney did not pres- tract is no different than permitting recovery against an actor who ent evidence sufficient to demonstrate his maliciously interfered with a prospective business relationship or good moral character in that he lacked true economic advantage - a situation which does not require a contract for liability to attach. See Stebbins, 1924 OK 227, 224 P. 714; See also remorse for his actions leading to suspen- Brock, 1997 OK 127, ¶ 31 n.58, 948 P.2d 279, 293 n. 58 (1995) (Interfer- sion and did not acknowledge the adverse ence includes inducing a third person not to enter into the prospective relation or preventing the other party from acquiring the pro- effect his actions had upon the public and spective relation). his clients. The trial panel recommended

326 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 that reinstatement be denied and that costs arising from his collusion in removing a client’s be assessed. Upon de novo review, we deter- child from the lawful custody of the minor’s mine that reinstatement should be denied father and transporting the mother and child and impose $2,714.63 in costs. from Texas to Oklahoma. On February 24, 1989, the Professional Responsibility Commis- PETITION FOR REINSTATEMENT IS sion administered a private reprimand for DENIED; PETITIONER IS ORDERED TO misrepresentations he made to a social worker PAY COSTS. at the Oklahoma Department of Human Ser- Franklin J. Pacenza, Cleveland, Oklahoma, vices that he had filed suit on behalf of an indi- Pro se. vidual and expected to settle the suit within six months. No lawsuit had been filed and the Mark A. Davidson, Assistant General Counsel, attorney was aware that there was no settle- Oklahoma City, Oklahoma, for Complainant. ment forthcoming. PER CURIAM: ¶4 The transaction leading to his suspension ¶1 On June 13, 2006, we suspended the attor- occurred in 1999 when the Richards executed a ney for two years and one day for his dishon- contract for deed to purchase real property est, fraudulent, deceitful, and misleading from the attorney. At that time, Pacenza did not actions in a real estate transaction resulting in disclose: the existence of $300,00.00 in IRS tax significant economic harm, embarrassment to liens against the property; title problems exist- the legal profession and to this Court, and an ing as a result of an incomplete foreclosure undermining of public confidence in the Bar action; or that the couple could only expect a Association and its members. We deemed the merchantable title upon the payment of cash in extended suspension appropriate based on hand to the attorney. For a period of approxi- Pacenza’s disciplinary history, discipline mately nine months, Pacenza represented to administered in similar cases, and the attor- the Richards and to attorneys hired to assist ney’s unwillingness to acknowledge his wrong- them that he was working on clearing title to doing.1 the property. During this period, the attorney did nothing to remedy the title problems. ¶2 Upon a de novo review,2 we determine that the attorney did not present clear and convinc- ¶5 Once the Richards sought independent ing evidence that, if readmitted, his conduct legal advice, Pacenza attempted to force the would conform to the high standards required couple into a settlement of $55,000.00. The of a member of the Bar Association.3 Therefore, attorney advised the couple’s lawyer that if we deny reinstatement and impose the costs of they did not take his offer, he would obtain a the proceeding in the amount of $2,714.63.4 Our divorce to protect his assets. The settlement decision is supported by the attorney’s contin- offer was refused; and Pacenza followed ued lack of understanding of the consequences through with his threats, divorcing his wife in 5 of his actions leading to suspension and any order to preserve assets of his estate. The Rich- true remorse for the results of his conduct ards estimated their total out of pocket expens- along with testimony from former colleagues es at $116,265.25. By the conclusion of the and a judicial officer questioning both his legal bankruptcy proceedings, the couple received abilities and his integrity and by uncertainty between $39,000.00 and $40,000.00, leaving concerning his competency to practice law them with a loss in excess of $75,000.00. Pacen- raised by the lack of strict compliance with the za was able to purchase many of the items sold rules governing suspension and reinstatement in the bankruptcy proceedings, including the proceedings. building where his law office was located; and, he and his wife remarried. FACTS RELEVANT TO REINSTATEMENT PROCEEDINGS ¶6 On July 28, 2008, Pacenza filed for reinstatement pursuant to Rule 11, Rules Govern- ¶3 Pacenza was admitted to the practice of ing Disciplinary Proceedings, 5 O.S. 2001, Ch. law on October 7, 1976. Before the incident 1, App. 1-A. The hearing on reinstatement was resulting in his suspension for two years and a held before the trial panel on October 14, 2008. day, he was disciplined on two occasions. The The trial panel issued its report on November attorney was privately reprimanded by this 12, 2008 determining that Pacenza had not met Court in October of 1987 for engaging in con- the burden of proof for reinstatement and rec- duct involving misrepresentations and deceit ommending that reinstatement be denied and

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 327 costs be imposed. On the same day, the Bar suspension; and 3) the petitioner possesses the Association filed an application for the assess- competency and learning in the law required ment of costs in the amount of $2,714.63. The for admission to the practice of law in the State order setting a briefing schedule issued on of Oklahoma. In addition, this Court considers November 13, 2008. On December 9th and the following eight factors in making a rein- 15th, respectively, Pacenza and the Bar Associ- statement decision: 1) the applicant’s present ation filed waivers of their rights to file briefs moral fitness; 2) demonstrated consciousness in the cause. of the conduct’s wrongfulness and the disre- JURISDICTION, STANDARD OF REVIEW, pute it has brought upon the legal profession; AND BURDEN OF PROOF 3) the extent of rehabilitation; 4) the original misconduct’s seriousness; 5) conduct after res- ¶7 It is this Court’s nondelegable, constitu- ignation; 6) time elapsed since the resignation; tional responsibility to regulate both the practice and the ethics, licensure, and discipline of 7) the applicant’s character, maturity, and expe- the practitioners of the law. The duty is vested rience when suspended; and 8) present legal 16 solely in this department of government.6 Our competence. Each reinstatement decision is determinations are made de novo.7 Although determined on a case-by-case basis, carefully 17 given great weight,8 neither the finding of facts weighing all factors. of the trial panel nor its view of the evidence or ¶10 a. The attorney has not demonstrated the the credibility of witnesses bind this Court. The 9 clear and convincing evidence necessary for recommendation is merely advisory. We are his readmittance to the practice of law in bound neither by its findings nor its assess- Oklahoma. ments as to the weight or credibility of the evidence.10 A thorough and complete exploration ¶11 Pacenza did not submit a brief arguing of all relevant facts is mandatory in consider- his position, but we assume that the attorney ation of matters to regulate the practice of law would assert that he has met all requirements and legal practitioners.11 Attorneys suspended for reinstatement; or, he would not have sought for disciplinary reasons will not automatically such by the filing of a petition and participa- be reinstated on a prima facia showing that the tion in reinstatement proceedings. The trial attorney has not engaged in improper conduct panel found that Pacenza had not submitted 12 during the suspension period. credible evidence of his good moral character ¶8 A suspension from the practice of law for or that, if readmitted, he would conform his a period of two years and one day is tanta- conduct to the high standards expected of mount to disbarment in that the suspended members of the legal profession in Oklahoma. lawyer must follow the same procedures for Specifically, it determined that the attorney readmittance as would a disbarred counter- was not truly remorseful for his actions and part.13 Before an attorney who has been disci- did not understand their gravity nor did he plined for more than two years may be read- acknowledge the effect of his actions on the mitted to the practice of law, it must be estab- public and his clients. Nevertheless, the trial lished that the lawyer’s conduct will conform panel did believe that Pacenza had met the to the high standards required of a member of burden of proof on the issue of his learning and the Oklahoma Bar. The burden is on the appli- competence in the law. Both the trial panel and cant to demonstrate by clear and convincing the Bar Association recommend that we deny evidence that the prerequisites for reinstate- reinstatement and impose costs of the proceed- ment are satisfied.14 The applicant must present stronger proof of qualifications than one seeking. We agree with these recommendations. ing first time admission.15 However, unlike the trial panel, we are not persuaded that Pacenza met the burden of ¶9 Rule 11.5, Rules Governing Disciplinary proof as it relates to his competency to practice Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A law. Our lack of confidence in the attorney’s requires the trial panel to make specific find- legal abilities arises from his failure to strictly ings regarding whether: 1) the petitioner pos- comply with the rules governing suspension sesses the good moral character which would and reinstatement proceedings. entitle him to be admitted to the Bar Associa- tion; 2) the petitioner has engaged in the unau- ¶12 1) Pacenza failed to demonstrate true thorized practice of law during the period of remorse for the damage he caused his clients

328 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 and to recognize that they have not been excess of $116,000.00. The Richards have not fully reimbursed economically. been “made whole” and any contention to the contrary is unconvincing to this Court and ¶13 Both the Richards appeared to testify demonstrative of the attorney’s continued lack against readmitting the attorney to the practice of understanding of the harm his actions of law. Their general purpose in doing so was an attempt to keep the same harm Pacenza caused. inflicted upon them from happening to anyone ¶16 2) Evidence of Pacenza’s good work in else.18 The first time that the attorney contacted his church and in his community is the Richards to express his regrets for the treat- insufficient to overcome testimony ment they suffered at his hands was the day of from former colleagues and a judicial the reinstatement hearing. Although those officer questioning both his legal abilities apologies appear on the record, the candor of and his integrity. the attorney’s statements do not comport with the tone of questioning he utilized with the ¶17 During the reinstatement hearing, the couple. In cross examination, Pacenza was far attorney called four individuals. Two of these more interested in attempting to show that the individuals were not listed as witnesses but couple had not been injured to the extent they were allowed to make narrative statements. claimed, approximately $75,000.00,19 than he Only one of the four witnesses was a lawyer was to demonstrate that he had done anything familiar with Pacenza’s legal practice. He testi- to ease their losses.20 Although the attorney fied that the attorney had given him excellent testified that not a day had gone by since his assistance in research of a complicated medical suspension that he did not feel remorse for the malpractice case during his suspension. He pain he had caused the Richards and the disre- also stated that Pacenza was considered a very pute he brought on the profession, when asked ethical and decent person in the community. how he would characterize his punishment, The two individuals allowed to make narrative Pacenza testified that the discipline imposed statements were adamant that Pacenza is a for his involvement with the Richards was good man who does extensive work in his “excessive” and “harsh.”21 church, ministers to shut-ins in the local rest homes, and is a solid contributor to the well ¶14 In his opening statement, Pacenza being of the community as a whole. Also expressed that he had done everything in his included in the record are eight letters from 22 power to make the injured parties whole. This members of the legal and church community statement, in itself, is misleading. The record is which strongly urge reinstatement. devoid of any indication that the Richards ever received anything from the attorney other than ¶18 The President of the Pawnee County Bar the original settlement monies disbursed in the Association, Patrick Pickerill (Pickerill), testi- bankruptcy proceedings. It appears that the fied that he began receiving telephone calls attorney believes that the settlement reached in and letters from other attorneys in his commu- bankruptcy constituted full restitution for his nity opposing Pacenza’s reinstatement even wrongs.23 before he read the notice of the filing of the petition in the Bar Journal. Recognizing that he ¶15 Making full restitution to a lawyer’s vic- has had personal differences with Pacenza in tims will neither preclude discipline nor insure 27 24 the past, Pickerill testified that the attorney reinstatement. Nevertheless, the lack of any did not possess the character and knowledge attempt at restitution is germane to a reinstate- 28 25 necessary to practice law and that he lacked ment proceeding. This Court’s concern is candor with his clients.29 Pickerill also stated heightened when an attorney takes the posi- that he believed it would be a detriment to the tion that no further restitution is necessary law and to the legal profession if Pacenza was where it is obvious that the monetary position allowed to practice law again.30 of a client has not been fully restored.26 Undoubt- edly, the Richards entered a settlement agree- ¶19 Another lawyer testified that he became ment whereby they accepted substantially less involved in a cause in which Pacenza had been than they lost in the real estate transaction with the attorney of record in a guardianship and Pacenza, releasing any legal right to pursue adoption case in which the father’s parental full restitution from the attorney. However, a rights had been terminated and an adoption settlement netting approximately $40,000.00 had been allowed, all without notice to the does not constitute full restitution for a loss in father.31 The lawyer was successful in having

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 329 the father’s parental rights reinstated. When ¶25 The three documents attached to the asked if he would support Pacenza’s readmis- application did not conform with the statutory sion to the practice of law, he responded that requirements for affidavits. In one instance, the he could not make such a recommendation.32 document denominated as an affidavit was not ¶20 Pacenza listed several judges as potential signed. None of the three supposed affidavits witnesses. Most of those listed were ambivalent indicated they were signed before an individu- about the reinstatement either stating that they al authorized to administer oaths nor did they did not have a lot of contact with the attorney contain a statement indicating they were being when practicing or that they simply had no signed under penalty of perjury.39 knowledge of his having engaged in the unau- ¶26 A witness list was attached to the appli- thorized practice of law during his suspension. cation denominating twenty-seven individu- Nevertheless, the Bar Association’s investigator als. When the investigator for the Bar Associa spoke to one judge who stated that he did not - support reinstatement because he did not believe tion made inquiries of these individuals, only the attorney to be trustworthy.33 nine responded. In addition, it became clear that Pacenza had not contacted all the indi- ¶21 The District Attorney of Pawhuska viduals nor advised them that he would be County stated that he did not believe Pacenza calling them as witnesses.40 could be trusted and that he hoped he would not be reinstated.34 In contrast, the District ¶27 Rule 9.1, Rules Governing Disciplinary Attorney of Creek County said he thought the Proceedings, 5 O.S. 2001, Ch. 1, App. 1-A41 pro- attorney was aggressive and conscientious in vides that when a lawyer is suspended there is the representation of his clients but expressed an affirmative duty within twenty days, to no opinion on reinstatement.35 notify all clients via certified mail with pending ¶22 The statements from the attorney’s wit- business of the inability to represent them. nesses are insufficient to demonstrate clear and There is also a requirement to formally with- convincing evidence36 of either Pacenza’s good draw from all pending cases. Finally, during moral character or his competency in the law the same twenty day period, the lawyer must when compared with the strength of contrary file an affidavit with the Commission and with evidence elicited by the Bar Association. They the Clerk of the Supreme Court affirming his do not produce in this Court’s collective mind compliance with the rule and providing a list a firm belief or conviction37 that: the attorney of the clients notified along with a summary of understands the extent of his wrongdoing; he all other state and federal courts and adminis- is truly remorseful for his actions; or he pos- trative agencies before which the lawyer is sesses the good moral character necessary in admitted to the practice of law. one licensed by this body to practice law. ¶28 Because he had no pending causes in any ¶23 3) The attorney’s failure to strictly court, Pacenza did not file any formal with- comply with the rules governing suspension drawals after he was notified of his suspen- and reinstatement proceedings militates sion. When asked for evidence that he had against a finding of knowledge of the law contacted all his clients as required upon sus- and competency in its practice. pension, the attorney was able to present only ¶24 Pacenza filed for reinstatement pursuant twenty-five return receipts although he had a to Rule 11, Rules Governing Disciplinary Pro- client list of thirty-five individuals.42 ceedings, 5 O.S. 2001, Ch. 1, App. 1-A. How- ¶29 Every lawyer is charged with the obser- ever, his petition did not conform strictly to the 43 requirements of the rule. Rule 11.1, Rules Gov- vance of the rules of professional conduct. erning Disciplinary Proceedings, 5 O.S. Supp. The lack of knowledge of the rules of profes- 2002, Ch. 1, App. 1-A requires that affidavits be sional conduct and disciplinary proceedings 44 attached to the petition showing all the appli- raises concerns. While there is no evidence cant’s activities and places of residence since that Pacenza’s failure to strictly comply with suspension along with an affidavit of the appli- the rules governing suspension and reinstate- cant and of all court clerks in counties in which ment arose from a deceitful motive, it is addi- the applicant resided establishing that there tional evidence of his lack of knowledge of the has been no unauthorized practice of law dur- rules which govern the practice of law in Okla- ing the suspension.38 homa.

330 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 CONCLUSION proof presented must be sufficient to overcome the Supreme Court’s former judgment adverse to the applicant. Feelings of sympathy toward the applicant must be disregarded. If applica- ¶30 We agree with the trial panel that there is ble, restitution, or the lack thereof, by the applicant to an injured no evidence to indicate that the attorney party will be taken into consideration by the Trial Panel on an engaged in the unauthorized practice of law application for reinstatement. Further, if applicable, the Trial Panel shall satisfy itself that the application complied with Rule during his suspension. However, although 9.1 of these rules. there is testimony in support of Pacenza, the Matter of Reinstatement of Katz, 1995 OK 115, ¶20, 907 P.2d 1029. 4. Rule 11.1, Rules Governing Disciplinary Proceedings, see note transcript of proceedings before the trial panel 13, infra. makes it clear that the attorney has not demon- 5. Transcript of Reinstatement Hearing, October 14, 2008, Franklin J. Pacenza testifying in pertinent part at p. 132: strated true remorse for the damage he caused “. . . Q. My question is, was one of the motivations for this and that he continues to fail to recognize that divorce proceedings to preserve assets? his clients have not been made whole finan- A. Yes, it was. . . .” 6. Title 5 O.S. 2001 §13; State ex rel. Oklahoma Bar Ass’n v. Farrant, cially. In addition, we are presented with testi- 1994 OK 13, ¶13, 867 P.2d 1279; Tweedy v. Oklahoma Bar Ass’n, see mony from the clients harmed by the attorney’s note 11, infra. 7. In re Reinstatement of Otis, see note 2, supra; State ex rel. Okla- actions leading to discipline, by the practicing homa Bar Ass’n v. Hulett, 2008 OK 38, ¶4, 183 P.3d 1014; Matter of bar, and by one judicial officer questioning his Reinstatement of Jones, 2006 OK 33, ¶7, 142 P.3d 380; Matter of Rein- statement of Massey, see note 2, Matter of Reinstatement of Blevins, see legal abilities and his integrity. Finally, we are note 2, supra. faced with evidence that Pacenza did not 8. In re Reinstatement of Holden, 2003 OK 28 ¶5, 66 P.3d 416; Mat- ter of Reinstatement of Kamins, see note 9, infra. strictly comply with the rules governing either 9. Rule 6.15, Rules Governing Disciplinary Proceedings, 5 O.S. his suspension or his reinstatement. 2001, Ch. 1, App. 1-A; State ex rel. Oklahoma Bar Ass’n v. Besly, 2006 OK 18, ¶2, 136 P.3d 590; Matter of Reinstatement of Rhoads, 2005 OK ¶31 In making a reinstatement decision, this 53, ¶2, 116 P.3d 187; State ex rel. Oklahoma Bar Ass’n v. Taylor, 2003 OK 45 56, ¶2, 71 P.3d 18; Matter of Reinstatement of Kamins, 1988 OK 32, ¶18, Court must disregard feelings of sympathy, 752 P.2d 1125. recognizing that the petitioner’s burden of 10. State ex rel. Oklahoma Bar Ass’n v. Raskins, 1982 OK 39, ¶11, proof is a heavy one.46 While we are concerned 642 P.2d 262. 11. Tweedy v. Oklahoma Bar Ass’n, 1981 OK 12, ¶4, 624 P.2d 1049. with any adverse effect reinstatement might 12. Matter of Reinstatement of Pierce, 1996 OK 65, 919 P.2d 422; have on the practicing bar, our foremost con- Matter of Reinstatement of Cantrell, see note 47, infra; Application of Sharpe, 1972 OK 92, ¶7, 499 P.2d 406; sideration is always to protect the public wel- 13. Rule 11.1, Rules Governing Disciplinary Proceedings, 5 O.S. fare.47 After having given due consideration to Supp. 2002, Ch. 1, App. 1-A providing in pertinent part: “A person whose name has been stricken from the Roll of Attor- the evidence contained in this record and the neys for non-payment of dues, or who has been suspended from appropriate factors examined in reinstatement the practice of law for a period of longer than two (2) years or disbarred, or who has resigned membership in the Association proceedings, we determine that the petitioner may be readmitted to the practice of law only through the fol- has failed to carry his burden to show by clear lowing procedures: and convincing evidence48 that he is entitled to (a) The applicant shall file an original and ten copies of a petition for reinstatement with the Clerk of the Supreme Court, and reinstatement. Therefore, reinstatement is attach thereto (1) an affidavit showing all of the applicant’s denied and costs of $$2,714.6349 are imposed. activities since the termination or suspension of his right to practice law and the applicant’s place or places of residence since that PETITION FOR REINSTATEMENT IS date; and (2) the applicant’s affidavit and the affidavits of the court clerks in the several counties in which he has resided, DENIED; PETITIONER IS ORDERED TO establishing that the applicant has not practiced law in their PAY COSTS. respective courts since the termination or suspension of his right to practice law. . . . Edmondson, C.J., Taylor, V.C.J., Hargrave, (c) The applicant shall pay a fee to cover the expenses of investigating and processing the application as determined by the Pro- Opala, Kauger, Watt, Winchester, Colbert, JJ. - fessional Responsibility Tribunal. In addition, the applicant shall concur. pay the cost of the original and one copy of the transcript of any hearings held in connection with the application. . . .” Oklahoma Bar Ass’n v. Pacenza, see note 1, supra. Reif, J. - recused 14. Rule 11.4, Rules Governing Disciplinary Proceedings, see note 3, supra; Matter of Reinstatement of Jones, see note 7, supra. 1. State ex rel. Oklahoma Bar Ass’n v. Pacenza, 2006 OK 23, ¶2, 136 15. Rule 11.4, Rules Governing Disciplinary Proceedings, see note P.3d 616. 3, supra; In re Reinstatement of Fraley, 2005 OK 39, ¶37, 115 P.3d 942. 2. In re Reinstatement of Otis, 2007 OK 82, ¶7, 175 P.3d 357; In re 16. In re Reinstatement of Otis, see note 2, supra; Matter of Rein- Reinstatement of Massey, 2006 OK 21, ¶12, 136 P.3d 610; Matter of statement of Blevins, see note 2, supra; Matter of Reinstatement of Reinstatement of Blevins, 2002 OK 78, ¶3, 59 P.3d 510. Kamins, see note 9, supra. 3. Rule 11.4, Rules Governing Disciplinary Proceedings, 5 O.S. 17. In re Reinstatement of Page, 2004 OK 49, ¶3, 94 P.3d 80; In re 2001, Ch. 1, App. 1-A providing: Reinstatement of Anderson, 2002 OK 64, ¶4, 51 P.3d 581; State ex rel. “An application for reinstatement must establish affirmatively Oklahoma Bar Ass’n v. Cantrell, see note 47, infra. that, if readmitted or if the suspension from practice is removed, 18. Transcript of Reinstatement Hearing, October 14, 2008, Chris- the applicant’s conduct will conform to the high standards tina Richards testifying in pertinent part at p. 141: required of a member of the Bar. The severity of the original “. . . Q. Why are you here today? offense and the circumstances surrounding it shall be considered A. We believe that - that what happened to us should not happen in evaluating an application for reinstatement. The burden of to anyone else and the hardships that we faced should not have proof, by clear and convincing evidence, in all such reinstate- came from an attorney, should not have came to - to anyone who ment proceedings shall be on the applicant. An applicant seeking has taken an oath to repre - represent the people and represent such reinstatement shall be required to present stronger proof of the United States and we believe that anything that we can do qualification than one seeking admission for the first time. The future wise, to let the courts know what has happened to us,

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 331 would - would be a big help, so that nobody else has to go 23. Transcript of Reinstatement Hearing, October 14, 2008, Franklin through this. . . .” J. Pacenza testifying in pertinent part at p. 68: 19. See, ¶5 and accompanying footnotes, supra. “. . . I tried to do everything I could in my power to right the 20. Transcript of Reinstatement Hearing, October 14, 2008, Franklin wrongs I’ve done. It was my understanding that entered into J. Pacenza in cross examination of Christina Richards providing in a full and complete and final settlement with the complain- pertinent part: ing witnesses here. And, in fact, they wrote a letter to the bar at pp. 156-57 “. . . Q. So it’s you testimony the house is worth association to that effect, that we had made a complete and $116,265? final settlement. . . .” A. I would believe it’s worth more. . . . 24. In re Reinstatement of Otis, see note 2, supra; Matter of Rein- Q. So you had a house that you thought was worth statement of Massey, see note 2, supra. 116,000 and you entered into a contract to sell it for 25. Matter of Reinstatement of Bradley, 1993 OK 107, ¶8, 897 70,000? P.2d 243. A. Yes, sir, because of the situation that we were in, 26. In re Reinstatement of Otis, see note 2, supra. that’s the reason why Hattie Birchfield was excited 27. Transcript of Reinstatement Hearing, October 14, 2008, Patrick to buy it, that we were selling it at such a low cost, Pickerill testifying in pertinent part at p. 216: because we were in a situation where we needed a “. . . I’ve tried, as a Christian - it’s no secret that Mr. Pacenza quick sell. . . .” and I have never seen eye to eye from the very beginning of at p. 159 “. . . Q. I mean, you could have gone to trial and if you our period of time to practice in the same town. . . .” had won the trial you would - may have won sig- 28. Transcript of Reinstatement Hearing, October 14, 2008, Patrick nificantly more money against me than you settled Pickerill testifying in pertinent part at p 214: for, is that correct? “. . . Q. And what is that opinion? A. Right. I believe though that I was - I was advised A. My opinion is that Mr. Pacenza lacks the most important at that time that because you were in bankruptcy character that every attorney must have. The character that court, that you were - you were losing everything, so it was best to take - take the bird in hand is what Mr. Pacenza lacks is humility. . . . they had said to us. . . . He has never believed that the rules of the Court, that the Q. You didn’t have to make a settlement, did you? rules of the law apply to him. He has never demonstrated A. At the time, yes, sir, we did. We weren’t able to that he understood that consequences of his actions would - to do anything else in our financial situation…” affect him. Mr. Pacenza doesn’t have the humility to wield Transcript of Reinstatement Hearing, October 14, 2008, Franklin J. the power of an attorney, and yet, not take advantage of his Pacenza cross examination of Eric Richards providing in pertinent at clientele. . . .” pp. 195-96: 29. Transcript of Reinstatement Hearing, October 14, 2008, Patrick “. . . Q. Exactly how much were you out? Pickerill testifying in pertinent part at p. 217: A. 116,000, sir. “. . . Q. Now that’s with respect to his moral character. Do Q. And how do you remember that and not remember the you have an opinion with respect to his competency and $4,700 that I loaned to you in cash? learning in the law? In other words, has there ever been a A. I believe it’s in writing, sir. time where you’ve inherited a case of his and have learned Q. Now, were you going to sell the house for $116,000? that it was not done correctly, would be an example. . . . . A. We were to sell it for more, but because of your A. Yes. On several occasions, I’ve inherited cases or had to delays, sir, we had to drop the price. reform cases where certain notices were not given. I recall, at Q. Did you have it - an offer on it for more than $116,000? least two or three occasions, where severance of joint tenancy A. We did have some people interested, yes, sir. in real estate had occurred and no required estate tax exemp- Q. That’s not what I asked. Did you have an offer? I’m asking tion had been - a release had been filed. These types of a simple question. Did you have an offer on it? things. . . . A. I believe there were two people interested in the house, I’ve witnessed Mr. Pacenza speak untruths to his clients sir. . . .” before. . . .” 21. Transcript of Reinstatement Hearing, October 14, 2008, Franklin 30. Transcript of Reinstatement Hearing, October 14, 2008, Patrick J. Pacenza testifying in pertinent part at p. 103: Pickerill testifying in pertinent part at pp. 216-17: “. . . Q. Do you think that the Supreme Court’s suspension of “. . . The last two years during Mr. Pacenza’s suspension, two years and a day was excessive? practice of law in Pawnee County has gone very smoothly. A. Sure, I’m an attorney by training and I’ve learned, in 30 There is generally an increase in the public’s outlook and years, that you accept the judgments of the Court and move attitude towards attorneys. on. . . . And I believe, with all my heart, that if Mr. Pacenza is read- Q. Okay. You’ve never told anyone you thought it was harsh mitted into the bar association, he will begin his practice or excessive? again in Pawnee County in the same office that he was, A. I thought it was harsh in that the Trial Panel recom- which still remains vacant, and that everything that was will mended six - six months, and when I got from the Trial Panel be again. to the Supreme Court, it multiplied by four times, so I was I don’t believe that the lessons that should have been learned pretty devastated by that and - and in that regard, I thought by Mr. Pacenza can be learned. And it will be a detriment to it was harsh . . .” the citizens of Pawnee County, to the bar association of Paw- Transcript of Reinstatement Hearing, October 14, 2008, Sharon nee County if the Oklahoma Bar Association allows Mr. Orth testifying in pertinent part at pp. 311-12: Pacenza to practice law there again. . . .” “. . . Q. . . What did he have to say for himself when - par- 31. Transcript of Reinstatement Hearing, October 14, 2008, Samuel ticularly, when you asked him the question Mr. Pacenza, why do you want to be reinstated to practice law? What did Douglas Withiam testifying in pertinent part at p. 234: he say? “. . . Q. And who was their attorney again? A. Well, I asked him - well, first of all, I asked him why do A. Mr. Pacenza . . . . you want to practice law again? And he said that he felt he A. As I looked deeper into the situation and reviewed the had always done good for people and thought he was well- pleadings that were at hand, reviewed the statute, reviewed respected in his community. some of the pertinent case law that was involved, I realized Then I asked him why did he think he should be reinstated that the processes that were left out of the adoption were all and he said to me that he thought he got a harsh sentence, of the required notice requirements to the father and it didn’t that he had served his disciplinary punishment, he had done appear to be a mistake. It appeared to have been done - everything he was supposed to, he had maintained his profi- enough of them were gone that I felt like that was fraud…” ciency in law, he had continued to receive the Bar Journal. 32. Transcript of Reinstatement Hearing, October 14, 2008, Samuel …” Douglas Withiam testifying in pertinent part at p. 251: 22. Transcript of Reinstatement Hearing, October 14, 2008, Franklin “. . . Q. (By Mr. Davidson) based upon your representation to J. Pacenza in his opening statement at p. 10: the Sissoms in this fraudulent guardianship and adoption of “. . . MR. PACENZA: . . . I’ve done everything in my power their child, do you have an opinion as to whether or not Mr. to - to rectify the situation, to make full the parties that were Pacenza possesses good moral character that would entitle harmed. . . .” him to reinstatement?

332 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 A. The only thing that I have to base that on is this case and Q. And what did you learn? what I saw in the file and based on what I saw, I would cer- A. Again, he was not aware that he’d been listed as tainly not recommend that. . . .” a witness for Mr. Pacenza. . . . 33. Transcript of Reinstatement Hearing, October 14, 2008, Sharon He said he did not feel that Mr. Pacenza could be Orth testifying in pertinent part at pp. 295-96: trusted and he hopes that he was not reinstat- “. . . Q. When you say Judge Henry, are you talking about ed…” Matthew Henry? Transcript of Reinstatement Hearing, October 14, A. Matthew Henry, yes, sir. 2008, Franklin J. Pacenza testifying in pertinent Q. And what else did you learn? part at p. 102: A. When I spoke with him - first of all, as I said, he was not “. . . Q. You also have a list of witnesses here on the aware he had been listed as a witness. next page. I believe there’s 27 or so witnesses. Judge Henry did say, quite readily, that he did not support A. Uh-huh. the reinstatement of Mr. Pacenza. He said he didn’t think Mr. Q. Some of them you’ve called. Some of them Pacenza was trustworthy based on some phone calls that we’ve gotten letters. Did you speak with each one Judge Henry had received some time ago, he estimated prob- of these individuals and tell them you would be ably sometime after the suspension and these were from calling them as a witness? criminal defendants that would need a continuance or some A. No. other assistance from the court and they would say to Judge Q. So you didn’t talk at all with them? Henry, well, Frank told me to call and say this or that, what- A. No. ever it was. . . .” Q. So you don’t know if all of them agreed to tes- 34. Transcript of Reinstatement Hearing, October 14, 2008, Sharon tify or say something positive about you; is that Orth testifying in pertinent part at p. 298-99: correct? “. . . Q. Larry Stuart, D.A. of Pawhuska, did you visit with A. That’s correct. . . .” him? Transcript of Reinstatement Hearing, October 14, 2008, Franklin J. A. I did. Pacenza testifying in pertinent part at p. 118: Q. And what did you learn? “. . . MR. GOLDSCHMIDT: You were asked whether you A. Again, he was not aware that he’d been listed as a witness called or contacted each of those people to know if they were for Mr. Pacenza. He told me that he had known Frank for going to be a witness. quite a few years, that they had been assistant D.A.s together Does that mean that you didn’t call them to be a witness in Osage County, I believe. They had actually run against today or did you submit this list and these people didn’t each other for D.A. and Mr. Stuart had won that race. know they were on the list? He said he did not feel that Mr. Pacenza could be trusted and THE WITNESS: They didn’t know they were on the list when he hopes that he was not reinstated. . . .” I submitted it. . . .” 35. Transcript of Reinstatement Proceedings, October 14, 2008, 41. Rule 9.1, Rules Governing Disciplinary Proceedings, 5 O.S. Sharon Orth testifying in pertinent part at p. 299: 2001, Ch. 1, App. 1-A providing in pertinent part: “. . . Q. And did you visit with Max Cook, the D.A. of Creek “When the action of the Supreme Court becomes final, a County? lawyer who is disbarred or suspended, or who has resigned A. I did, yes. membership pending disciplinary proceedings, must notify Q. And what did you learn there? all clients having legal business then pending within twenty A. He said he had limited experience with Mr. Pacenza. In (20) days, by certified mail, of the lawyer’s inability to repre- his opinion, Mr. Pacenza was aggressive and conscientious in sent them and the necessity for promptly retaining new representing his clients. That most of the time, he used good counsel. . . . The lawyer shall also file a formal withdrawal of judgment. Said he hadn’t seen Mr. Pacenza for two or three counsel in all cases pending in any tribunal. . . . Proof of years and really had no opinion one way or the other about substantial compliance by the lawyer with this Rule 9.1 shall his reinstatement. . . .” be a condition precedent to any petition for reinstatement.” 36. Rule 11.4, Rules Governing Disciplinary Proceedings, see note 42. Transcript of Reinstatement Hearing, October 14, 2008, Franklin 3, supra; Matter of Reinstatement of Jones, see note 7, supra. J. Pacenza testifying in pertinent part at: 37. Clear and convincing evidence, warranting reinstatement to the pp. 82-84 “. . . Q. Okay. When I count them out, I count 35 bar, is that measure or degree of proof which produces in the mind of clients that you sent certified mailings to; is that the trier of fact a firm belief or conviction as to the truth of the allega- correct? tions sought to be established. In re Reinstatement of Massey, see note A. Well, you want me to count them? That sounds 2, supra; State ex rel. Oklahoma Bar Ass’n v. Green, 1997 OK 39, ¶5, 936 approximately correct. . . . P.2d 947. Q. Okay. At the request of Ms. Sharon Orth, the 38. Rule 11.1(a), Rules Governing Disciplinary Proceedings, see investigator of the Oklahoma Bar Association seat- note 13, supra. ed here today, you were requested to provide certi- 39. Title 12 O.S. 2001 §422 providing: fied mail receipts of the notices that were sent to “An affidavit is a written declaration, under oath, made without your clients, is that correct? notice to the adverse party.” A. Yes. . . . Title 12 O.S. 2001 §432 providing: Q. (By Mr. Davidson) Showing you what has been “An affidavit may be made in and out of this state, before any previously marked as Respondent’s Number 1 and person authorized to administer oaths.” ask you if you would identify that? Title 12 O.S. Supp. 2002 §426 providing in pertinent part: A. Yes. That is the letter I sent to Ms. Orth. . . . “Whenever, under any law of Oklahoma or under any rule, order, Q. And are there attachments to that? or requirement made pursuant to the law of Oklahoma, any matter . . . . Those are the - the certified mail receipts that is required or permitted to be supported, evidenced, established, we got back that I could find. . . . or proved by the sworn statement, declaration, verification, certifi- Q. Okay. Would you mind counting those, please? cate, oath, or affidavit, in writing of the person making the same A. 25. My count is 25. . . .” . . . the matter may be proved by the unsworn statement in writing 43. In re Reinstatement of DeBacker, 2008 OK 17, ¶23, 184 P.3d of the person made and signed under penalty of perjury setting 506. forth the date and place of execution and that it is made under the 44. State ex rel. Oklahoma Bar Ass’n v. Wagener, 2005 OK 3, ¶13, laws of Oklahoma. . . .” 107 P.3d 567; State ex rel. Oklahoma Bar Ass’n v. Downes, 2005 OK 33, 40. Transcript of Reinstatement Hearing, October 14, 2008, Sharon ¶45, 121 P.3d 1058, rehearing granted, opinion modified on other grounds Orth testifying in pertinent part: (2005). at pp. 294-95 “. . . Q. And what did you learn from your conversation with Judge Henry? 45. Matter of Reinstatement of Page, see note 17, supra. A. Well, I called and introduced myself, that I was an investigator 46. In re Reinstatement of Hird, 2008 OK 25, ¶3, 184 P.3d 535; Mat- and that I was investigating the petition for reinstatement of Mr. ter of Reinstatement of Bradley, see note 25, supra; Matter of Reinstate- Pacenza. ment of Kamins, see note 9, supra. I explained to Judge Henry that he had been listed as a witness and 47. In re Reinstatement of Fraley, see note 15, supra; Matter of Rein- he was somewhat taken aback by that. He wasn’t aware that he had statement of Cantrell, 1989 OK 165, ¶2, 785 P.2d 312. been. . . .” 48. Rule 11.4, Rules Governing Disciplinary Proceedings, see note at p. 298-99 “. . . Q. Larry Stuart, D.A. of Pawhuska, did you 3, supra; Matter of Reinstatement of Jones, see note 7, supra. visit with him? 49. Rule 11.1, Rules Governing Disciplinary Proceedings, see note A. I did, yes. 13, supra.

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 333 2009 OK 11 back” transactions1. Under these “barrel-back” arrangements, Sunoco purchased oil at the lease STATE OF OKLAHOMA, ex rel. and transported it to a market center. At the OKLAHOMA TAX COMMISSION, Plaintiff/ market center, Sunoco would sell the oil back to Appellant, v. SUN COMPANY, INC. (R&M), a the producer for the price paid by Sunoco plus corporation, Defendant/Appellee. transportation costs. The producer would then No. 103,776. February 10, 2009 sell the oil to third parties at the price set by the New York Mercantile Exchange. Taxes were CERTIORARI TO THE COURT OF CIVIL paid on the Sunoco purchases at the lease in APPEALS, DIVISION I accordance with 68 O.S.2001 § 1010(B)(5)2. These APPEAL FROM THE DISTRICT COURT OF facts were assumed true by the trial court with- DEWEY COUNTY, STATE OF OKLAHOMA out objection of the parties for purposes of summary judgment. HONORABLE R.W. COLLIER, TRIAL JUDGE ¶2 The Tax Commission basically believes that “barrel-back” arrangements are nothing more ¶0 The Oklahoma Tax Commission filed suit than a scheme for producers to sell oil off the in district court to collect gross production and lease at a price higher than the prevailing field excise taxes allegedly owed by Sun Company, price, but having taxes and royalties figured on Inc. (R&M) now Sunoco, Inc. (R&M). The Tax the field price paid by Sunoco. According to the Commission alleged that Sunoco aided produc- Tax Commission, the producers could not carry ers in making off-lease sales of oil and was liable out such a scheme without the complicity of for additional taxes based on the off-lease sales transporters such as Sunoco, who ostensibly over and above any taxes Sunoco had paid in buy the oil at the lease, but have no intent to sell connection with its purchase of oil at the lease. the oil to any other party than the producer. In Sunoco contended its tax liability was limited to addition to playing this passive role, the Tax the oil it purchased at the lease as provided by Commission alleges that Sunoco actively fur- 68 O.S. 2001 § 1010(B)(5). The trial court granted thers this scheme by filing gross production tax summary judgment in favor of Sunoco and the returns based on its purchases at the lease, Court of Civil Appeals affirmed. The Tax Com- knowing that these purchases are simply the mission timely sought certiorari review by this conduit through which producers were moving Court. oil off-lease for the first arms-length sale at the CERTIORARI PREVIOUSLY market center. GRANTED; OPINION OF THE COURT ¶3 In substance, the Tax Commission argues OF CIVIL APPEALS VACATED; JUDGMENT that Sunoco has acted as an accomplice to tax AFFIRMED. evasion not only in the movement of oil off- Robert K. Pezold and Joseph C. Woltz of lease, but also by filing misleading returns. The PEZOLD, BARKER & WOLTZ, Tulsa, Oklaho- Tax Commission contends that Sunoco bears ma, for Plaintiff/Appellant. joint liability with the producers for the additional taxes due from the market center sales by Larry D. Patton, Assistant General Counsel, virtue of its role in this scheme. Oklahoma Tax Commission, Oklahoma City, Oklahoma, for Plaintiff/Appellant. ¶4 In response, Sunoco maintains that it has done everything the law requires of it in connec- James M. Chaney and Matthew L. Standard of tion with its purchase of the oil at the lease. KIRK & CHANEY, Oklahoma City, Oklahoma, Sunoco points out that it paid Sunoco’s field for Defendant/Appellee. price for the oil it purchased at the lease, report- REIF, J. ed each purchase at the lease and paid taxes on each purchase at the lease, all as required by § ¶1 This case concerns the liability of Sunoco 1010(B)(5). In essence, Sunoco believes the sale for gross production taxes on oil that was mar- at the lease ends the producer’s status as a pro- keted under “barrel-back” arrangements ducer for purposes of gross production tax lia- between the producers and Sunoco. The Okla- bility. Thereafter, the producer is just another homa Tax Commission contends that Sunoco is market buyer when repurchasing the oil at the liable for additional taxes (1) on “barrel-back” market center. In turn, when reselling the oil to purchases by Sunoco from 1984 and after, and other market buyers, the producer is acting as (2) on an amount that Sunoco paid to settle a any other market seller. class action suit by royalty-owners over“barrel-

334 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ¶5 As concerns liability for additional taxes was not “retained” by the producers within the on the amount paid by Sunoco to settle the ordinary sense of the word. royalty owners class action suit, Sunoco con- ¶11 To be sure, “barrel-back” transactions tends that this amount was not paid for under- provide an opportunity to producers to market valued oil. Sunoco maintains it was paid to buy oil and obtain a higher price than the field peace and to settle a disputed claim. price upon which gross production taxes are ¶6 The primary basis asserted by the Tax based. It is also obvious that the Tax Commis- Commission for holding Sunoco liable for sion regards this as a “loophole” to avoid taxa- additional taxes is that the oil was not actually tion. The fact that the “barrel-back” transac- sold at the time of production but was retained tions provide such an opportunity or even a by the producer through the “barrel-back” tax “loophole” is not justification for this Court arrangement. The Tax Commission relies on 68 to interpret the statute contrary to the ordinary O.S.2001 § 1009(D)3 that provides, in pertinent meaning of the words used therein. Courts part, “[i]n the event oil is not sold at the time of cannot enlarge the taxing act’s ambit to make production but is retained by the producer, the provisions applicable to cases not clearly with- tax on such oil not sold shall be paid by the in the Legislature’s contemplation or fill lacu- producer ....” Again, the Tax Commission pro- nae (gaps) in the revenue law in a manner that pounds that Sunoco shares liability for taxes on would distort the enactment’s plain language. such retained oil by reason of its complicity Globe Life & Accident Insurance Company v. Okla- with the producer. homa Tax Commission, 1996 OK 39, ¶ 10, 913 P.2d 1322, 1327. As the Globe Life case points ¶7 Resolution of this controversy necessarily out, “the proper remedy for OTC is not to have depends on the correctness of the Tax Commis- the court’s expand the ... Tax Code’s scope ... sion’s interpretation of § 1009(D). More partic- but rather to press the gap’s closure by the Leg- ularly, we must determine whether the pro- islature.” Id. at ¶ 19, 913 P.2d at 1329. ducer “retained” the oil in the “barrel-back” arrangement. ¶12 In conclusion, we hold the gross production tax law as written by the Legislature does ¶8 Statutory construction presents a question not subject the producers’ buy-back of oil and of law. Blitz USA, Inc. V. Oklahoma Tax Commis- resale at the market center to taxation. In the sion, 2003 OK 50, ¶ 6, 75 P.3d 883, 885. Ques- absence of tax liability on the part of the pro- tions of law are reviewed by a de novo stan- ducer, there can be no tax liability for Sunoco to dard. Fanning v. Brown, 2004 OK 7, ¶ 8, 85 P.3d share or jointly incur. This conclusion is dis- 841, 845. Under this standard, this Court has positive of the Tax Commission’s claim for plenary, independent, and non-deferential additional taxes both on the direct sales between authority to decide the question of law. Id. the producers and Sunoco and on the settle- ¶9 The Legislature has directed that words ment paid by Sunoco in the royalty owners’ used in any statute are to be understood in case. To the extent that the “barrel-back” their ordinary sense, except when a contrary arrangements present a “loophole” in the gross intention plainly appears, or when words are production tax law, such transactions must be given a definition by statute. 25 O.S.2001 § 1. made subject to taxation by a clear, affirmative The word “retained” as used in § 1009(D) is the declaration of the Legislature and not by impli- past tense of the word retain. The common cation through judicial construction. meaning and ordinary sense of the word retain AFFIRMED. is to keep or hold in one’s possession or in a particular place, condition, or position. The ¶13 Edmondson, C.J., Hargrave, Opala, Watt, American Heritage Dictionary 1054 (2nd College Winchester, Colbert, and Reif, JJ., concur. ed. 1985). ¶14 Kauger, J., concurs in result. ¶10 Under the facts concerning the “barrel- ¶15 Taylor, V.C.J., dissents. back” arrangement as assumed true by the trial court, the producers sold the oil to Sunoco and 1. In re Lease Oil Antitrust Litigation, 186 F.R.D. 403 (S.D. Tex. 1999). parted with possession of it. Thereafter, the oil 2 Title 68 O.S.2001 § 1010(B)(5) states in pertinent part: was kept by Sunoco in Sunoco’s pipeline until B. Except as otherwise provided in subsection G of this section, every person responsible for paying or remitting the tax levied it reached the market center. Even under the by Section 1001 et seq. of this title on the production from any Tax Commission’s version of the facts, the oil lease shall file with the Tax Commission a monthly report on

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 335 each lease, regardless of sales or purchases of production from COURT OF CIVIL APPEALS OPINION the lease during the report period, under oath, on forms prescribed by the Tax Commission, giving, with other information VACATED; REVERSED AND REMANDED. required, the following: . . . . Mark S. Stanley, Carpenter, Stanley & Myers, 5. The total value of the mineral oil, gas, or casinghead gas, at the Tulsa, Oklahoma, for Plaintiff/Appellant, time and place of production, including any and all premiums paid for the sale thereof, at the price paid, if purchased at the David D. Wilson, Frances J. Armstrong, Wil- time of production. 3. Title 68 O.S.2001 § 1009(D) states in pertinent part: son, Cain & Acquaviva, Tulsa, Oklahoma, for D. On oil and gas sold at the time of production, the gross pro- Defendant/Appellee. duction tax shall be paid by the purchaser of such products, and such purchaser shall, and is hereby authorized to deduct in mak- WATT, J.: ing settlements with the producer and/or royalty owner, the amount of tax so paid. In the event oil is not sold at the time of ¶1 We granted certiorari to address a single production but is retained by the producer, the tax on such oil issue:1 whether an instruction to the jury involv- not so sold shall be paid by the producer for himself including the tax due on royalty oil not sold; provided, that in settlement ing the possibility of a post-judgment attorney with the royalty owner such producer shall have the right to fees award in a personal injury case constituted deduct the amount of such tax so paid on royalty oil or to deduct 2 therefrom royalty oil equivalent in value at the time such tax fundamental error requiring a new trial. becomes due with the amount of the tax paid. The gross produc- Although Fletcher did not seek the award of an tion tax upon asphalt, or on ores bearing lead, zinc, jack, gold, attorney fee at trial and it is undisputed that silver or copper shall be paid by the producer for himself, including the royalty interest; provided, that in settlement with the the cause of action for personal injury would royalty owner such producer shall have the right to deduct the not support an award for attorney fees,3 the amount of such tax so paid on royalty asphalt, or on ores bearing trial court sua sponte gave an instruction indi- lead, zinc, jack, gold, silver or copper, or to deduct therefrom royalty asphalt, or ores bearing lead, zinc, jack, gold, silver or cating to the jury that its judgment might be copper, equivalent in value at the time such tax became due, to increased by a discretionary award of attorney the amount of tax paid. fees. Under these facts, we hold that error suf- 2009 OK 10 ficient to require the granting of a new trial occurred. Our determination is supported by DONNA FLETCHER, Plaintiff/Appellant, v. our recent pronouncement in Snyder v. Domin- MICHAEL MONROE, Defendant/Appellee. guez, 2008 OK 53, ___ P.3d ___ holding that an No. 104,364. February 10, 2009 instruction on an issue irrelevant to the cause of action in a jury trial is fundamental error CERTIORARI TO THE COURT OF CIVIL requiring the granting of a new trial. APPEALS, DIVISION I RELEVANT FACTS AND PROCEDURAL ¶0 The defendant/appellee, Michael Mon- HISTORY roe (Monroe), admitted liability for personal injuries suffered in a car accident by ¶2 It is undisputed that on December 17, the plaintiff/appellant, Donna Fletcher 2003, Monroe was operating a motor vehicle and rear-ended an automobile occupied by (Fletcher). Nevertheless, Monroe contested Fletcher. On November 24, 2004, Fletcher filed the necessity of medical attention Fletcher suit to recover $8,928.05 in medical expenses received and the amount of damages aris- along with remuneration for pain and suffering therefrom. Before submitting the issue ing, costs, and a reasonable attorney fee. The of damages for personal injury to the jury, trial was held on March 20 and 21, 2006. Mon- the trial court gave an unrequested jury roe did not deny that his negligence caused the instruction indicating that it would exer- accident during the jury trial. Nevertheless, he cise its discretion in any award of attorney did dispute the reasonableness and necessity fees which might be made. Considering of medical treatment Fletcher obtained as a our recent pronouncement in Snyder v. result of the crash. Dominguez, 2008 OK 53, ___ P.3d ___ and the facts presented, where no claim for ¶3 At trial, Fletcher did not request that the attorney fees was pressed, the cause of jury consider the issue of attorney fees as a part 4 action tried to the jury would not support of the damages to be awarded. Nevertheless, an award of attorney fees, and the trial the trial court sua sponte gave a non-Oklahoma court sua sponte gave an instruction indicat- Uniform Jury Instruction (OUJI) advising the ing it might exercise its discretion to jury that it: increase the judgment by the award of such “. . . should not consider or attempt to a fee, we hold that error occurred requiring award attorney fees as a part of any verdict a new trial. you may render in this case for any party

336 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 or parties. Based upon your verdicts, the JUDGMENT MIGHT BE INCREASED BY Court will determine the entitlement of THE DISCRETIONARY AWARD OF SUCH any party or parties to recover attorney A FEE, ERROR OCCURRED REQUIRING A fees.” 5 NEW TRIAL. The jury returned a verdict in Fletcher’s favor ¶7 The parties agree that Fletcher’s personal for $2,800.00. The figure does not conform with injury claim will not support an award of attor- medical expenses Fletcher incurred immedi- ney fees.10 Nevertheless, Monroe contends that ately following the accident or with any other the attorney fee instruction is an accurate state- combination of expenses incurred at a later ment of Oklahoma law that could not and did date.6 not create a miscarriage of justice requiring a new trial. Fletcher argues that the instruction ¶4 On June 26, 2006, Fletcher filed a motion created conjecture and speculation by the jury for new trial alleging irregularities in the pro- that any award it made would subsequently be ceedings and errors of law occurring at trial.7 increased by an amount equal to the costs of The motion was denied on January 30, 2007. In the prosecution of her cause. Under the facts an opinion promulgated on July 25, 2008, the presented and considering recent jurispru- Court of Civil Appeals affirmed the trial court. dence, we agree with Fletcher’s position. Fletcher filed a petition for certiorari on Sep- tember 9, 2008. On November 13, 2008, we ¶8 Generally, the right of a litigant to recover granted certiorari. Monroe filed an application attorney fees is governed by the American on November 21, 2008 to withdraw the order Rule. Pursuant to the rule, courts are without granting the petition for certiorari and to strike authority to award attorney fees in the absence and deny the petition or, in the alternative, to of a specific statute or a contractual provision grant him the opportunity to answer. The allowing the recovery of such fees.11 Excep- motion asserted a lack of notice of the filing of tions to the American Rule are narrowly the petition on certiorari. On December 1, 2008, defined.12 It is undisputed that no statute or we issued an order directing the parties to contractual basis has been provided to sup- show cause: 1) whether certiorari should be port an award of attorney fees in favor of withdrawn as improvidently granted for fail- Fletcher for her personal injuries. Neither has ure to meet the notice requirements of Rule there been an argument that some exception 1.4(g), Supreme Court Rules, 5 O.S. Supp. 2008, to the American Rule exists which might sup- Ch. 15, App. 18 and Rule 1.179, Supreme Court port such an award. Rather, the issue of attor- Rules, 5 O.S. 2001, Ch. 15, App. 1;9 and 2) ney fees was not discussed during the proceed- whether, if certiorari is not withdrawn as ings before the jury until the trial court sua improvidently granted, Monroe should be sponte gave the instruction indicating that any allowed an opportunity to file an answer pur- such award would be within her discretion. suant to Rule 1.179, Supreme Court Rules, 5 ¶9 We were recently presented with a situa- O.S. 2001, Ch. 15, App. 1. tion similar to the one posed here in Snyder v. ¶5 Responses to the show cause order were Dominguez, 2008 OK 53, ___ P.3d ___. Like filed on December 9 and 11, 2008. On January here, the Court was presented with a single 12, 2009, upon reconsideration of the petition issue in Snyder: whether the trial court erred in to grant certiorari and the answer thereto along the giving of a jury instruction. Before address- with the responses to the show cause order, we ing the issue, we set out the narrowly defined issued an order refusing to withdraw certiorari circumstances under which this Court will dis- as improvidently granted and allowing the fil- turb a jury verdict based on errors in jury ing of an answer to the certiorari petition. The instructions. Paragraph 8 of the opinion pro- answer was filed on January 23, 2009. vides in pertinent part: ¶6 UNDER THE FACTS PRESENTED, “. . . The power of an appellate court to WHERE ATTORNEY FEES WERE NOT disturb a jury’s verdict on the basis of an SOUGHT AS A PART OF THE AWARD AT error in jury instructions is tightly circum- TRIAL, THE CAUSE OF ACTION TRIED scribed and can be exercised only if the TO THE JURY WOULD NOT SUPPORT AN court concludes that the error ‘has probably AWARD OF ATTORNEY FEES, AND THE resulted in a miscarriage of justice, or con- TRIAL COURT SUA SPONTE GAVE AN stitutes a substantial violation of a constitu- INSTRUCTION INDICATING THE tional or statutory right.’ Okla. Stat. Tit. 20,

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 337 § 3001.1 (2001); see also Lierly v. Tidewater ent when a probability of change in the out- Petroleum Corp., 2006 OK 47, ¶15, 139 P.3d come of a lawsuit occurs.17 Prejudicial error 897, 902. This Court can disturb a jury’s occurs requiring a new trial when an instruc- verdict only if it concludes that an error in tion materially deviates from the dispositive a jury instruction is so pervasive that the legal issue.18 instructions as a whole create the ‘probability that the jury was misled into reaching a ¶14 The only issue before the jury here was result different from that which would the amount sufficient to compensate Fletcher have been reached but for the error.’ Myers for her physical injuries. Fletcher did not seek v. Mo. Pac. R.R., 2002 OK 60, ¶29, 52 P.3d attorney fees and the recovery sought, com- 1014, 1028-29.” [Emphasis in original.] pensation for personal injuries, would not support such an award.19 We determine that the ¶10 Snyder involved a car accident in which trial court erred in giving sua sponte the mis- there were allegations of a passenger’s con- leading jury instruction on attorney fees and in tributory negligence. The evidence presented subsequently denying Fletcher a new trial. in the cause did not support a finding of con- Therefore, we reverse and remand for proceed- tributory negligence on the passenger’s part. ings consistent with this opinion. Nevertheless, the trial court gave the instruction. This Court determined that the giving of COURT OF CIVIL APPEALS OPINION the unwarranted instruction was fundamental VACATED; REVERSED AND REMANDED. error tending to create confusion, conjecture Edmondson, C.J., Taylor, V.C.J., Opala, Kauger, and speculation on the part of the jury. Watt, Colbert, JJ. - concur ¶11 Here, as in Snyder, the trial court gave an Hargrave, Winchester, Reif, JJ. - dissent instruction which was entirely inappropriate to the issue to be determined by the jury, the 1. Fletcher has vigorously argued that error also occurred when the trial judge encouraged the parties to enter into a joint stipulation extent of Fletcher’s physical injuries and the involving the testimony of Monroe’s expert witness. The allegedly reasonableness of the medical expenses controversial stipulation, read to the jury after Fletcher rested her case, incurred. Although there was no basis upon is found at p. 145, Transcript of Jury Trial, March 20 & 21, 2006, the Court providing: which the trial court could award attorney fees “Ladies and gentlemen, the parties have a stipulation that the to either party, it gave an instruction implying defendant requested the permission of the court to allow examination of the plaintiff by Dr. Sami Framjee on July 19, 2005. The that any award the jury entered might be court denied that request because the plaintiff reported full enhanced by the trial court’s discretionary recovery of any injuries claimed in this lawsuit in July of 2005.” The on-record discussion of the issue of the stipulation appears at award of an attorney fee. p. 144, Transcript of Jury Trial, March 20 & 21, 2006, statement by Mr. Stanley providing: ¶12 The instruction misled the jury on the “For the record, the stipulation accurately sets forth the facts and dispositive legal issue of what amount would the true facts of exactly what transpired. My only objection is, is that counsel for the defendant should have handled that in the be sufficient to compensate Fletcher for her cross-examination of Dr. Framjee. He pointed out to Dr. Framjee physical injury arising from the automobile that my client was well before the lawsuit was filed, there was no accident. Most certainly the jury believed that opportunity for him to see her and do that, rather than to have the court do that for him. . . .” any award it entered would be enhanced once Because any objection to the stipulation was not voiced when the the trial court determined the attorney fee stipulation was read, the issue is waived on appeal. Wilson v. Still, 1991 OK 108, ¶4 819 P.2d 714; Bane v. Anderson, Bryant & Co., 1989 OK 140, issue. Instructing on a non-existent issue, an ¶24, 786 P.2d 1230. Messler v. Simmons Gun Specialties, Inc. 1984 OK award which was not supported by the facts 35, ¶13, 687 P.2d 121. Our determination that the plaintiff was preju- or the cause of action, constituted an unau- diced by the instruction on attorney fees negates the need to determine whether the trial court’s reading of the stipulation constituted funda- 13 thorized application of judicial force. We mental error. Tile 12 O.S. 2001 §2104(D) providing: hold that a new trial is necessary to correct “Nothing in this section precludes taking notice of plain errors affecting substantial rights although they were not brought to the fundamental error, the substantial compromise attention of the court.” of Fletcher’s uncontested right to compensa- McMillan v. Lane Wood & Co., 1961 OK 95, ¶14, 361 P.2d 487 [No objection necessary if a showing of prejudice or fundamental error is made tion for the totality of her personal injuries suf- or is apparent.]. fered in the accident with Monroe.14 2. Fundamental error compromises the integrity of the proceeding to such a degree that the error has a substantial effect on the rights of CONCLUSION one or more of the parties. Sullivan v. Forty-Second West Corp., 1998 OK 48, ¶7, 961 P.2d 801; 20 O.S. 2001 §3001.1 providing: ¶13 The right to a fair trial is statutorily pre- “No judgment shall be set aside or new trial granted by any 15 appellate court of this state in any case, civil or criminal, on the served. A new trial is required when a party is ground of misdirection of the jury or for error in any matter of prevented from having a fair trial as a result of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a an error which materially affects the substan- miscarriage of justice, or constitutes a substantial violation of a tial rights of the party.16 Reversible error is pres- constitutional or statutory right.”

338 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 3. Lee v. Griffith, see note 10, infra; Truelock v. City of Del City, see 9. Rule 1.179(b), Supreme Court Rules, 5 O.S. 2001, Ch. 15, App. 1 note 10, infra; 12 O.S. 2001 §990(A), see note 10, infra. providing in pertinent part: 4. Fletcher’s Proposed Jury Instruction, filed on March 10, 2006, “. . . The petition shall be served upon the respondent and the providing in pertinent part: petition shall show service. See Rule 1.4(g).” “. . . In fixing the amount [of Plaintiff’s damages] you will award 10. Lee v. Griffith, 1999 OK 32, ¶5, 990 P.2d 232; Truelock v. City of her you may consider the following elements: A. Her physical pain and suffering; Del City, 1998 OK 64, ¶22, 967 P.2d 1183; Title 12 O.S. 2001 §990(A) B. Her mental pain and suffering; providing: C. Her age; “In any civil action to recover damages for the negligent or will- D. Her physical condition immediately before and after the acci- ful injury to property and any other incidental costs related to dent; such action, the prevailing party shall be allowed reasonable E. The nature and extent of her injuries; attorney’s fees, court costs and interest to be set by the court and F. The physical impairment; to be taxed and collected as other costs of the action.” G. The reasonable expenses of the necessary medical care, treat- 11. Barnes v. Oklahoma Farm Bureau Mut. Ins. Co., 2000 OK 55, ment, and services, past and future.” 5. Instruction number 12 is denominated by the trial court as ¶46, 11 P.3d 162; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶13, 829 “Non-OUJI” and is found in the record at p. 115. P.2d 15. 6. Plaintiff’s exhibit 3, found at p. 933 of the record, lists the medi- 12. Barnes v. Oklahoma Farm Bureau Mut. Ins. Co., see note 11, cal expenses incurred as follows: 12-18-03, $313.06 to Hillcrest Medical supra; Kay v. Venezuelan Sun Oil Co., 1991 OK 16, ¶5, 806 P.2d 648. Center and $216.00 to Tulsa Hillcrest Emerg. Phys.; 12-30-03/2-2-04, 13. See, W.R. Grisham Co. v. First Nat’l Bank & Trust Co. of Tulsa, $2,975.22 to Green Country PT; 2-9-04/4-5-04, $3,354.00 to Simpson 1977 OK 28, ¶¶25-26, 562 P.2d 117 [Instructions constituting an Physical Therapy; 2-5-04/4-8-04, $1,597.80 to David A. Traub M.D.; improper statement of the law constitute reversible error requiring a 12-23-03, $18.00 to Walmart; 2-5-04/2-9-04, $176.75 to Saffa Pharmacy; new trial.]; Lusk v. Pugh, 1916 OK 668, ¶15, 159 P. 855 [An unauthor- 2-5-04, $277.00 to Okla. Med. Svc. & Supply. ized instruction constitutes reversible error.]. 7. Title 12 O.S. 2001 §651(1) and (8). 8. Rule 1.4(g)(1), Supreme Court Rules, 5 O.S. Supp. 2008, Ch. 15, 14. Simpson v. Gear, see note 18, infra. App. 1 providing: 15. Title 12 O.S. 2001 §651, see note 7, supra; Taliaferro v. Shahsa- “By Parties. Service of all documents filed with the Supreme vari, 2006 OK 96, ¶13, 154 P.3d 1240. Court or Court of Civil Appeals shall be made in the manner 16. Id. provided in 12 O.S.Supp.1998, § 2005(B). Proof of service may be 17. Taliaferro v. Shahsavari, see note 15, supra; Public Serv. Co. v. by a certificate of service endorsed on the filing. The Court, a Brown, 1998 OK 121, ¶7, 972 P.2d 354; Missouri, Kansas, & Oklahoma Justice thereof, or a Referee of the Supreme Court may require Trans. Lines v. Jackson, 1968 OK 28, ¶0, 442 P.2d 287; Badgwell v. Lair, other methods of service and proof of service. 1958 OK 122, ¶8, 325 P.2d 968. No brief, motion, petition, application or suggestion will be considered by the Supreme Court or the Court of Civil Appeals 18. Simpson v. Gear, 1986 OK 27, ¶7, 725 P.2d 1241. without proof of service as required herein, except where the 19. Lee v. Griffith, see note 10, supra; Truelock v. City of Del City, Court determines that notice is not required.” [Emphasis in see note 10, supra; 12 O.S. 2001 §990(A), see note 10, supra. original.]

NOTICE OF JUDICIAL VACANCY

The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Fifteenth Judicial District, Office 2 Wagoner and Cherokee Counties

This vacancy is due to the retirement of the Honorable Bruce Sewell effective March 1, 2009. To be appointed to the office of District Judge for the Fifteenth Judicial District, Office 2, one must be a legal resident of Wagoner or Cherokee County at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, such appointee shall have had a minimum of four years experience as a licensed practicing attorney, or as a judge of a court of record, or both, within the State of Oklahoma. Application forms can be obtained by contacting Tammy Reaves, Administrative Office of the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405) 521 2450, or on line at www.oscn.net and must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, February 27, 2009. If applications are mailed, they must be postmarked by midnight, February 27, 2009.

Robert C. Margo, Chairman Oklahoma Judicial Nominating Commission

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 339 THE MUSCOGEE (CREEK) NATION DISTRICT COURT “DOING BUSINESS IN INDIAN COUNTRY” Seven Years of Quality CLE

March 12th and 13th, 2009 Tribal Mound Building Auditorium Okmulgee, Oklahoma

Moderators: Shelly Grunsted, BA, JD, LL.M, Professor - University of Oklahoma Patrick E. Moore, BBA, JD, LL.M, Muscogee (Creek) Nation District Court Judge

Some of the Many Faculty members include: Mark Jarboe – Partner, Head of Indian Gaming, Dorsey & Whitney, LLP, Minneapolis, MN Richard Monette – Professor of Law, University of Wisconsin Phillip Wilson, President, Labor Relations Institute, Broken Arrow Judith V. Royster, BA, MA, JD, Professor of Law, University of Tulsa Shannon Prescott, JD, Director Muscogee (Creek) Nation Citizen Legal Services Department Joe Valandra, Past Chief of Staff for the National Indian Gaming Commission Townsend Hyatt, BS, JD, Managing Partner – Hyatt Law Firm D. Michael McBride, III – Partner & Chair of Indian Law & Gaming Practice Group

COURSE OUTLINE DAY ONE

March 12th, 2009 8:30 - Registration and Continental Breakfast 8:40 - Ceremonial Opening Exercises 8:50 - Welcome and Introduction by Patrick Moore, Comments 9:00 - ITEDSA – the new Energy Development Act– Professor Judith Royster 10:00 - Break 10:10 - ITEDSA – Continued – Professor Royster 11:00 - Cossey v. Cherokee Nation Enterprises, LLC. - D. Michael McBride 11:50 - Lunch - Culinary Arts Chefs OSU 1:15 - Project Finance in Indian Country - A Case Study– Townsend Hyatt (being joined by Aaron Harkins 2:20 - Break 2:30 - Water law and Land Rights – Where’s the Sovereignty? – Professor Richard Monette 3:30 - Exerting Sovereignty in Responsible, Renewable, and Revenue Building Ways – Shannon Prescott 4:30 - Question and Answer Session – All Faculty and Speakers 5:00 - Supreme Court Swearing in Ceremony 5:30 - Barbeque Dinner Provided at the Okmulgee Casino in conjunction with the Annual Meeting of the Muscogee (Creek) Nation Bar Association

340 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 March 13th, 2009 COURSE OUTLINE DAY TWO 8:50 - Opening Remarks - Judge Patrick E. Moore 9:00 - Tribal Employment Responsibilities-Federal and State Mandates – Phillip Wilson 10:00 - Break 10:05 - Ethical Responsibility – It all Starts with You – Professor K. Smith 10:55 - Break 11:00 - Redefining Tribal Identity through Economic Development - Mark Jarboe 12:00 - Lunch - Culinary Arts Chefs OSU 1:30 - NIGC’s Proposed Class II Regulations-Tribal Impact- Joe Valandra 2:20 - Break 2:30 - National Indian Gaming Regulations – Philip Hogan – Chairman, National Indian Gaming Commission 3:20 - Panel Discussion- Question and Answer Session – Faculty and Speakers 4:30 - Closing Comments and Evaluations Adjourn

Tuition: $150.00 for ATTORNEYS and LAYMAN who preregister on or before March 7th $175.00 for walk-in registrations - space available.

Cancellations: Cancellations will be accepted at any time prior to seminar date, however, a cancellation fee of $50.00 will be charged.

13* Hours of CLE Credit with 1 hour of ETHICS

REGISTRATION FORM DOING BUSINESS IN INDIAN COUNTRY-2009 Name______Firm/Organization______Address______City______State______Zip______OBA Member ___Yes ___No OBA Bar # ______E-Mail______Make Check payable to Muscogee (Creek) District Court - CLE Program and mail entire page to: Muscogee (Creek) District Court, P.O. Box 652, Okmulgee, Oklahoma 74447 *Applied for

Questions contact the District Court @ 918.758.1400 or [email protected] **Speakers/Topics subject to change

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 341 Court of Criminal Appeals Opinions

2009 OK CR 3 with enough force to knock him to the ground. Appellant told Mullins she felt trapped and KATHERINE RUTAN a/k/a KATHERINE asked him several times when she would be POLLARD, Appellant, v. STATE OF able to start enjoying her life. Arriving home OKLAHOMA Appellee. from work one night, he observed that Logan Case No. F-2007-1022. February 13, 2009 “had been beaten and beaten severely.” OPINION ¶4 Brady Gougler, Appellant’s third husband to whom she was married from 1999 to 2001, LUMPKIN, JUDGE: observed Appellant yell at the children fre- ¶1 Appellant Katherine Rutan Pollard was quently and spend time at the computer instead tried by jury and convicted of First Degree of with them. In August 2001, Appellant told Murder (21 O.S.2001, § 701.7), Case No. CF- her neighbors in Nowata, Oklahoma, the Ran- 2006-31, in the District Court of Woods County.1 dells, that she could not stand Logan and that The jury recommended as punishment life she felt he was a mistake that stood in the way imprisonment without the possibility of parole of what she could accomplish, that he was the and the trial court sentenced accordingly. It is reason her relationships failed and she did not from this judgment and sentence that Appel- know what she might do to him. The Randells lant appeals. noticed that Appellant’s relationship with Logan was different from that with J.D. While ¶2 Appellant and her two young sons, 6 year J.D. received her attention and compassion, old Logan Tucker and 4 year old J.D., shared a Logan was pushed aside and ignored. The home with Melody Lennington in Woodward, Randell’s fifteen year old daughter, Ashlee, Oklahoma. At approximately 3:00 a.m., Sun- observed Appellant discipline the boys and felt day, June 23, 2002, Ms. Lennington was awak- her discipline of Logan was excessive. She said ened by a scream. She recognized the voice as Appellant repeatedly spanked Logan with a that of Logan. Thinking he was having another belt and plastic coat hangers. nightmare, she want back to sleep. A short time later, she got out of bed to find Appellant in the ¶5 Having separated from Gougler, Appel- front room at the computer. Lennington asked lant moved in with Richard Cody later that if Logan was okay. Appellant said he was sick year. They had met at their children’s day care so she had put him in a back bedroom. Len- center. One evening, Appellant and her sons, nington returned to bed and woke up again at and Cody and his daughter went for a drive. 6:00 a.m. to get ready for work. Appellant was Appellant and Logan screamed at each other still sitting at the computer. Lennington again most of the ride. At one point, Appellant told asked if Logan was okay. She told Appellant Cody to stop the truck. She took Logan out of she needed to get her work clothes from the the truck, left him on the side of the road, and back bedroom and didn’t want to disturb told Cody to drive off and leave him there. Logan. Appellant told her, “[d]on’t worry about Cody drove a few feet before stopping and put- it. He’s in the basement.” The basement was ting Logan back in the truck. solid cement with cinder blocks and contained ¶6 During the relationship, Appellant told the hot water heater, an old cabinet, and an old Cody that her brother had offered her a job out soiled twin mattress on a set of springs. No of state, but that she would not be able to bring place for a sick child, thought Lennington. her children because her brother did not like Although upset that Logan was in the base- children. One night Cody and Appellant were ment, Lennington got ready and left for work. in bed talking. Appellant told Cody she wished ¶3 The scream was the last anyone heard there was some way she could kill her kids and from Logan Tucker. Appellant had long seen get away with it. Not believing what he heard, Logan as an obstacle that stood between her Cody replied, “excuse me.” Appellant repeated and the life she wanted to live. Paul Mullins, a what she had said, but then said she was only former boyfriend who lived with Appellant in kidding. Cody was so disturbed by what he 1999, frequently observed Appellant hit Logan heard that he left his bed and slept the night in

342 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 his daughter’s bed. With the help of a crisis Melody Lennington. Appellant and her chil- center, Cody got Appellant out of his house dren moved into Lennington’s home on June within three to four days. 10, 2002. Appellant spoke poorly of Logan in Lennington’s presence as well as Logan’s. She ¶7 Kevin Caudill met Appellant in March blamed him for trying to burn down their 2002 and though they dated only a couple of home in Tulsa. On June 19, 2002, Lennington months, they remained friends. One night, smelled sulphur in her house and found Logan Appellant phoned Caudill, upset. She said that with cigarettes and J.D. with a lighter. Lenning- most people look forward to the weekend to ton called the police. When they arrived, Appel- spend time with their children, but her chil- lant told them Logan was trying to burn down dren were the very reason she dreaded the Lennington’s house and she wanted him arrest- weekend. ed. The officer did not take Logan into custody, ¶8 On April 27, 2002, Tulsa police officers but called Jimmie Fraley, a mental health work- responded to a call to check the well-being of a er, to the scene. child. Appellant told the officers she was afraid ¶13 Appellant later told Pettey she found she was going to hurt her children, did not Logan with matches trying to burn down Len- want to be around them, and that Logan “made nington’s house. Feeling responsible for Appel- her so angry that she just wanted to hit him as lant living with Lennington, and having previ- hard as she could.” The officers took both boys ously been told by Appellant that Logan had into protective custody and transported them tried to burn down their Tulsa home, Pettey to a shelter. told her he wanted her out of Lennington’s ¶9 Michelle Christy interviewed Appellant home. He told her he did not want her at his regarding the April 27 incident for the Depart- house, his mother’s house, or at the house of ment of Human Services (DHS). Appellant told anyone else he knew, because he did not want her she felt “very overwhelmed” by Logan and Logan to burn anything down. she was often angry at him and yelled at him ¶14 On that day and the next, June 20, 2002, frequently. Appellant wanted her parents, the Appellant spoke to three different people, Cathcarts, to take Logan. However, despite Aubrey Mabrey of the Northwest Domestic helping Appellant with the children in the Crisis Services, Jimmie Fraley of the Mental past, Mr. and Mrs. Cathcart, who lived in Health Center in Woodward, and RaGenia Ives Florida, were unable to take Logan at that of DHS, in an attempt to send Logan away time. immediately, either by sending him to a hospi- ¶10 After a hearing, the children were tal, to a shelter, or relinquishing her parental returned to Appellant on May 2, 2002. About rights. Appellant told Aubrey Mabrey that this time Appellant met Michael Pettey through Logan hid some lighters from her and that he personal ads she had posted on the internet. stabbed J.D. She said that Logan finally showed On the day her children were returned to her, her where the lighters were, but the lady she she told Pettey in an e-mail that Logan would was living with told her she had to find anoth- not be coming home. er place to live. Appellant also told Mabrey she had called DHS and spoken with RaGenia Ives ¶11 By the middle of May, Appellant and who told her DHS had closed her case and they Pettey were discussing the idea of Appellant could not help her. Appellant further said that moving from her home in Tulsa to Fort Supply, both she and her boyfriend were scared of where Pettey lived. While Pettey wanted Logan and that the youth shelter would not Appellant to move to the area, he expressed take him. reservations about actually living with her. Appellant had other ideas. On May 23, she ¶15 Appellant told Jimmie Fraley she wanted informed Pettey that she had been fired from Logan placed in inpatient psychiatric care at a her job and she and the boys were moving to hospital. Fraley called Meadowlake Hospital, a Fort Supply. Appellant and the children lived psychiatric hospital for children, and was told with Pettey for two weeks. Not ready for that there was no room available immediately, but type of relationship, Pettey looked for another if they could wait a few days, there would be space by Monday, June 24. Fraley went ahead place for Appellant to live. and made an appointment for Logan for Mon- ¶12 Pettey made arrangements for Appellant day morning. Appellant was extremely upset and her children to move in with his co-worker, when she learned Logan could not be admitted

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 343 that day. She told Fraley he was dangerous and because that was the way she could cope with needed to be placed immediately. During the it. She added that Logan wasn’t dead, but she interview, Fraley observed Logan to be a “nor- was going to treat it like he was. Appellant also mal little boy,” well-mannered and friendly. talked to Jim Stinnett and Evelyn Pettey that However, Appellant appeared to be angry with day. She told Stinnett, her next door neighbor, Logan, impatient and very strict with him. that DHS had taken Logan earlier that day. She When Appellant left Fraley’s office, she shout- told Ms. Pettey, Michael Pettey’s mother, that ed, “[y]ou people never listen to me. He’s a DHS had taken Logan and she would not see child murderer and a house burner, and you him again until he was 18 years old. Ms. Pettey won’t do anything.” thought it was odd that DHS would pick up a ¶16 RaGenia Ives visited Appellant at Len- child on a Sunday morning. Based upon a com- nington’s home. Appellant spent most of the ment from J.D., Ms. Pettey observed a “goopy- time telling Ives about Logan’s bad behavior. looking” substance on the front of Appellant’s She said Logan was affecting her relationship shirt. Appellant explained she had spilled a with her boyfriend and she was afraid he candle on herself. Ms. Pettey also noticed that would leave her because of Logan. Appellant Appellant kept scratching her arms and legs. told Ives they were waiting for space to open Appellant explained that she and J.D. had been up at Meadowlake Hospital. Ives observed out walking in the brush and it made her itch. Logan to be healthy, clean and appropriately ¶20 At approximately 4:00 p.m. that day, dressed. When Ives first arrived, Logan asked Lennington’s other daughter, Christy Vaughn, her if she was there to take him away. went to check on her mother. When she arrived ¶17 Around this time, Appellant became fix- at the house, she found no sign of Logan. Find- ated on an accident that had occurred Memo- ing Appellant in the kitchen, Vaughn began a rial Day Weekend in which a bridge on I-40 conversation. Appellant started to cry and told had collapsed over a river. Appellant repeat- Vaughn that DHS had taken Logan. Appellant edly talked to Debra Lenning, Pettey’s sister, said it “felt like a stress was lifted off” of her, about the fact that people drove off the bridge that “the weight was lifted off.” Appellant then and were never seen again, that they “just tried to give Vaughn some of Logan’s clothes. disappear[ed] into thin air.” On Friday, June 21, When asked where she thought Logan would 2002, Appellant was upset that she could not end up, Appellant said she thought the “real attend a motorcycle rally that weekend with father” would have him. At the time, Ms. Pettey. She told Lennington she could not find Vaughn worked for the Woodward County anyone to stay with her children, particularly Police Department as a police dispatcher. In Logan. that capacity, she had not received any information that DHS was to pick up Logan. ¶18 On June 23, and the days thereafter, Appellant told several different stories to ¶21 Later that day, Ms. Lennington returned explain Logan’s absence. Around noon on the home to find Appellant next door at Pam 23rd, Lacie Lennington arrived to visit her Chambers’ home. Appellant told the women mother. When asked where the boys were, that DHS had picked up Logan and showed Appellant, who was playing cards on the com- them a bruise on her arm claiming it had been puter, replied that DHS had just picked up caused by Logan. Appellant explained that Logan. Having previously been told by Appel- DHS was going to give Logan to his natural lant that if DHS took one boy they would take father. Appellant tried to give Chambers the other, Lacie asked if both boys had been Logan’s clothes and toys for her grandchildren taken. Appellant replied that only Logan had explaining that DHS would not let him have been taken. Appellant did not seem to be upset those things. Chambers refused to accept the over the matter. items. ¶19 That afternoon, Appellant met Pettey at ¶22 That evening, Michael Pettey arrived at the home of Dee Kirby. Appellant told them Appellant’s house per her request to talk. He she was upset because DHS had picked up found her dressed up as if ready for a date. He Logan. Appellant said she was treating the sit- said she did not seem sad and did not mention uation the same as when her infant daughter, Logan. The couple went to Phillip Burkhalter’s Logan’s twin, passed away at birth.2 She said home to look at pictures from a motorcycle she was going to look at it as if Logan was dead rally. During the evening, Appellant told

344 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 Burkhalter that DHS had taken Logan that she participated in a topless contest. Phillip morning. Burkhalter, who was also at the rally, was told by Appellant that she had learned that Logan ¶23 On Monday, June 24, Dannella Smith, had been placed with his natural father. When with Meadowlake Hospital, phoned Appellant asked if that was a good situation, Appellant to tell her that a bed was available for Logan. replied that she didn’t know, she had not seen Appellant told her she didn’t need the space, Logan’s father in several years. Sometime in that Logan was going to live with his uncle. late June, Appellant told Dee Kirby that Logan’s ¶24 That same day, Appellant told Melody natural father had him. By June 29, the Cath- Lennington that she had seen some wildflow- carts had decided they could keep Logan and ers that she thought would look pretty in Len- called DHS to check on him. They found he nington’s window box. Appellant told Len- was not in DHS custody. nington she was going to dig up the flowers ¶29 By late June and early July, 2002, Appel- and bring them back to the house and plant lant’s conflicting stories began to attract the them. Later that day, Appellant borrowed a attention of law enforcement. The media began shovel from Pettey and some clear Visqueen running stories concerning Logan’s disappear- plastic he was using to build a pond in his ance. During this time, Appellant sought out yard. Appellant never brought Lennington any people to make calls to appease the authorities wildflowers. and her parents, who she then knew were look- ¶25 On June 25, Appellant spoke to Jennifer ing for Logan. Between July 5 and 7 she asked Winn with DHS about raising her food stamps. three different women to call her parents and The day-care services for Logan and J.D. were tell them Logan was alright. On July 5, she also cancelled as Appellant was not working. asked Dee Kirby to phone her parents and let Appellant explained that she was having prob- them know that Logan was okay. Having no lems with Logan and was trying to put him in idea where Logan was, Kirby refused. On July some type of facility. She said he was currently 6, Appellant told Kathy Link, whom she had in another town with his grandparents. Also on met through Dee Kirby, that she was looking that day, Appellant phoned her parents to tell for someone to call her parents and let them them that DHS had taken Logan and her know that Logan was okay. Appellant explained parental rights were going to be terminated. to Link that Logan was with his biological She told them Logan had been placed in a facil- father who had gone to court and gotten cus- ity for disturbed children and he was not to be tody of him, and she did not want him taken contacted. from where he was. Link told Appellant it would be hard to find someone to make such a ¶26 On June 26, RaGenia Ives received a call without knowing the situation. On July 7, message from Meadowlake Hospital that the Appellant asked Fancie Hamilton, whom she appointment for Logan Tucker had been can- had met through Pettey, to call her parents and celled. Ives called Appellant and asked what tell them Logan was okay. Appellant told had happened. Appellant told her she had can- Hamilton that if her parents started asking celled the appointment at Meadowlake because questions to hang up. Not knowing where she had sent Logan to her brother in Vermont Logan was, Hamilton asked Appellant why to go camping, and that afterwards she was she wanted to make the call. Appellant replied, going to place him at Brown’s School in Tulsa.3 “because everybody’s wanting to know where Ms. Ives subsequently learned that no arrange- [Logan’s] at, and he’s with his father in South ments had been made for Logan to attend Carolina.” Appellant also told Hamilton to tell Brown’s School. her parents that “any outside contact would ¶27 On June 26, Appellant enrolled J.D. in a not be advised” and “not to worry about him, child care center in Woodward. She told the he’d be fine.” Hamilton did not make the director she had an older son who had been phone call. taken away the day before to a mental hospital ¶30 On July 7, Appellant also called Kevin and would not be returning. Appellant filled Caudill, who she had not seen in a long time. out the paperwork to enroll J.D., but never She told him that her brother had taken Logan took him to the center. on a camping trip to either Pennsylvania or ¶28 The weekend of June 27, Appellant Vermont. When Caudill said that covered a big accompanied Pettey to a motorcycle rally. There area and asked which state it was, Appellant

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 345 couldn’t remember. She then said that the contact Brian, Appellant said she did not have Woodward County Sheriff’s Department was a phone number. However, the authorities looking for her son. She asked Caudill to call already had a phone number for Brian and them, pretend to be her brother and say that called it in Appellant’s presence. They asked Logan was with him camping. Caudill refused, Brian Marquardt if he had Logan. He said he telling Appellant to “give it a couple of days” did not. Appellant claimed she told her brother to see if her brother called. On July 8, Appellant not to tell anyone where Logan was. When called Caudill on his cell phone and his home Undersheriff Clem called Marquardt back he phone. Seeing her number on the phones, he handed the phone to Appellant. Marquardt didn’t answer the call. Appellant left a message could be heard yelling at Appellant over the for Caudill to “call me” but Caudill did not phone. When the undersheriff tried to take the return the call. phone from Appellant, she pulled it away. ¶31 On July 7, Mickey Cathcart, Appellant’s Undersheriff Clem asked Appellant to accom- brother, called the Woodward authorities and pany him to the sheriff’s office and Appellant asked them to check on the welfare of Logan agreed. During the ensuing interview, Clem and J.D. That same day, officers from the told Appellant that by the next morning she Woodward County Sheriff’s Department needed to call her brother and get Logan back arrived at Lennington’s home. Observing them or file a kidnapping report. If she did not, the pull into the driveway, Lennington told Appel- situation would be treated as a homicide. lant of their arrival. Appellant got up from her Appellant never filed a kidnapping report. chair, told Lennington to tell them she was not there and went to her bedroom. The officers ¶34 That same evening, Sergeant Barnett and informed Lennington they were there to speak Sheriff Morton returned to Lennington’s home to Appellant. Lennington told them she was and searched everything except Appellant’s there and called Appellant to talk with the offi- bedroom. In the basement, they found an old cers. They told her they were there to do a bed without bedding, a pillow with no cover- welfare check on Logan. Appellant told the ing, wood shelves, and a white bucket on the officers that Logan was with her brother, Brian floor. On the pillow, mattress, and floor directly Marquardt, on a camping trip in either Penn- beneath the bed was a substance which sylvania or Vermont. The officers asked for appeared to be orange candle wax. In the Marquardt’s phone number, but Appellant did bucket was a wad of masking tape which con- not have one. After the officers left, Lennington tained clumps of whitish blond hair and a confronted Appellant about what she had told small blood stain, and more of the orange the officers. Appellant admitted she had lied to waxy substance. Subsequent DNA testing the officers but said nothing more. revealed that the hair and blood came from a ¶32 On July 8, Appellant approached Don male biological child of Appellant and Robert Hackley at a local gas station. Appellant and Tucker, Logan’s biological father. Hackely had never met. Appellant, talking in a ¶35 Appellant’s car was also searched. Inside whisper, asked him to leave a message on an the trunk was found drain cleaner, rope, and answering machine that Logan was okay. an amount of plastic that was so large it could Appellant dialed the number and Hackely left barely fit into a three foot envelope. The heavy the following message, “[t]his is for Katie. And Visqueen plastic was the same type that Michael this is for her brother. She (sic) has Logan. He’s all right, and they’ll be back in a couple of Pettey had on his property. weeks.” A few days later, Hackely heard on the ¶36 The Woodward County authorities regis- radio that a little boy named Logan was miss- tered Logan’s disappearance with two national ing. Remembering Appellant and the phone organizations, The National Center for Missing call, he contacted law enforcement. and Exploited Children and the Vanished Chil- ¶33 The evening of July 8, Appellant phoned dren Lights. Extensive searches, involving 300 the sheriff’s office to report she had received a to 400 volunteers and spanning numerous message from her brother Brian on her answer- days were made in the areas surrounding ing machine. When the authorities arrived, Woodward and Fort Supply. Appellant never Appellant played the message left by Hackley, participated in any of the searches nor called but claimed the voice was that of her brother the sheriff’s office to check on the status of the Brian. When asked how the authorities could searches.

346 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ¶37 On July 9, 2002, officers again searched lant said that her brother Brian had agreed to Lennington’s home, with her consent. As a take Logan and arrived at Melody Lenning- result of this search, Lennington realized she ton’s home on June 23 at approximately 11:00 was missing a blue suitcase that had belonged a.m. or noon to pick him up. She said that three to her father. The last time she had seen the or four days later, her brother left a message on suitcase, it was in a closet in the back bedroom. Lennington’s phone telling her that Logan was Officers told Lennington what they believed all right and they were going camping the next happened to Logan. After the police left, Appel- day. She said before she could get Brian’s lant pulled into the driveway and said to Len- phone number, he hung up. nington, “I suppose you want me to leave.” Lennington said, “yes.” Appellant gathered ¶41 On September 7, 2002, Appellant moved her things from the house and left. Sometime to Bartlesville, Oklahoma. Subsequently, Appel- in July, Appellant had a conversation with lant and her husband visited in the Salzyn home as Mr. Salzyn and Appellant’s husband Jamie Adams at a McDonald’s restaurant. She 4 told the young woman that she had one son worked together. When the Salzyn’s young who was four years old. son began fussing, Appellant commented to Laura Salzyn that “she remember[ed] those ¶38 Further investigation revealed that Brian days.” Not realizing that Appellant had any Marquardt never took Logan camping and had children, Mrs. Salzyn asked Appellant about never had him in his custody. Marquardt, his her children. Appellant replied that she had a sales company W.O.W. Industries, its employ- son that would have been nine and a son that ees and business travels were thoroughly was six. When asked what happened to the investigated by state and federal authorities. It older son, Appellant replied that he had been, was established that on June 23, 2002, Mar- “killed by a drunk driver.” Appellant explained quardt and his employees were in Maryland that afterwards she was “a real mess” and she and subsequently traveled to West Virginia. decided she should give up her parental rights The evidence showed there was never a small to her other son and have him live with his child traveling with the company. FBI agents father. interviewed Robert Tucker, Logan’s biological father, on July 12. Tucker said he had not seen ¶42 Appellant’s younger son, J.D., was 9 Logan since he was an infant. Ronald Tucker, years old at the time of trial. He testified that Robert’s brother, was also interviewed. In 2002 the last time he saw Logan, it was the after- he and his brother lived close to each other in noon and they were in the backseat of Appel- North Carolina. By the time of trial, they lived lant’s car together. Logan was not talking or together in South Carolina. He said that he had moving. J.D. said Appellant parked on a curve never seen Logan in his brother’s custody. and carried Logan to a house. J.D. could not see if Appellant went into the house because of the ¶39 In July 2002, authorities placed under- trees. When Appellant returned to the car, cover officer Rick Stephens in an apartment Logan was not with her. As they drove off, J.D. across the hall from Appellant’s apartment in saw a man looking through the window of the Woodward. Over the next month, Appellant house. J.D. never saw Logan again. told Stephens that Logan was camping with her brother in Wisconsin. She later told him she ¶43 Several interviews with J.D. were con- believed in her heart he was dead. She said that ducted by investigators and recorded in July her ex-boyfriend and the ex-boyfriend’s room- and August, 2002. During an interview on July mate had taken Logan. She admitted that she 9, J.D. told investigators that Logan was with had made several phone calls to friends in “my mom’s brother.” J.D. said he didn’t know areas outside of Woodward to please the police his uncle’s name and he had not seen him. He and say that they’d seen Logan. She told Ste- said Logan was not coming back because he phens that “if law enforcement found out she was bad. He told the investigators that Logan had done it, she’d hung herself.” Appellant was sick when he went with his uncle, and that also told Stephens that she felt like her attorney his uncle had picked Logan up from the doctor did not trust her, was secretly recording her, and taken him far away. He said that when and believed she knew more about her son’s Logan left he forgot to take his clothes and toys disappearance than she was telling. with him. ¶40 On August 9, 2002, Appellant was inter- ¶44 During an interview on July 15, J.D. told viewed by FBI Agent Ronald Parrish. Appel- investigators that Appellant borrowed a shovel

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 347 from Michael Pettey’s house and they went street from Ms. Lennington’s residence. It was digging for flowers. J.D. said Logan was with not in a place where Ms. Lennington usually their uncle at the time. J.D. said when Appel- placed her trash. The blue suitcase was bulky, lant put the shovel in the trunk, she also put in wrapped in a clear, thick plastic, and tied with plastic. When J.D. was asked what Appellant a rope. Bell thought the suitcase weighed any- was doing when she went to dig, J.D. did not where from 40 to 60 pounds and that it smelled want to say because it kept “hurting [his] like a dead animal. Bell wanted to look inside heart.” J.D. led investigators to a spot where he the suitcase, but it would have taken a while to told them, “Mama put her foot on the fence unwrap and untie it, and he needed the aid of and got the shovel and went through the fence a knife. Further, he noticed that he was being that way into the grassy area.” As he said this, watched by a woman from across the street. J.D. became despondent and wanted to leave ¶48 Based upon Bell’s information, and Ms. the area. Authorities returned to the second Lennington’s missing blue suitcase, the area area J.D. had led them and found a dig mark landfill was searched. The landfill was used by which appeared to have been made with a several surrounding counties and by the time it shovel in the ground which was very hard. was searched it contained 4 years worth of ¶45 During an interview in August 2002, J.D. trash. Despite searching every day, all day, was asked why Appellant needed the shovel from March through July 2006, using a track- and the plastic. He said it was, “[t]o bury hoe type system and a core drilling machine, Logan.” When asked what that meant, J.D. said Logan’s body was never found. Further facts it was to put dirt on Logan. However, he said will be set forth as necessary. he didn’t see Appellant put any dirt on Logan. ¶49 In her first assignment of error, Appel- J.D. said that to keep Logan from crying, lant challenges the sufficiency of the evidence Appellant put tape over his eyes and mouth. supporting her conviction. Specifically, she However, before she put the tape over his argues the State failed to produce sufficient mouth, she put food in it. evidence to prove she used unreasonable force ¶46 In another interview in August 2002, which resulted in the death of Logan Tucker. investigators took J.D. back to Lennington’s When reviewing challenges to the sufficiency home where he became “very agitated” when of the evidence, we view the evidence in the talking about Logan being in the back room. light most favorable to the prosecution, to J.D. said that in the morning Appellant dressed determine whether any rational trier of fact Logan in the living room in the blue chair. He could have found the essential elements of the said Logan was sick and was not crying or talk- crime charged beyond a reasonable doubt. ing. J.D. pointed out a desk in the living room Easlick v. State, 2004 OK CR 21, ¶ 15, 90 P.3d where he said Appellant had gotten the tape. 556, 559; Spuehler v. State, 1985 OK CR 132, ¶ 7, J.D. opened the desk and commented, “the 709 P.2d 202, 203-204. The credibility of wit- tape’s not here anymore.” J.D. said Appellant nesses and the weight and consideration to be carried Logan from the house to the car. He given to their testimony are within the exclu- said Logan sat in the backseat with his head sive province of the trier of facts. Bland v. State, slumped over, that Logan was sick, he was not 2000 OK CR 11, ¶ 29, 4 P.3d 702, 714. Although moving or crying and he was very white. there may be conflict in the testimony, if there When asked to explain about Logan being sick, is competent evidence to support the jury’s J.D. indicated he didn’t want to talk about it. finding, this Court will not disturb the verdict When asked why, he said, “it hurts” and began on appeal. Id. On appellate review this Court crying. J.D. said that after Appellant drove accepts all reasonable inferences which tend to around with him and Logan in the car, she support the jury’s verdict. Scott v. State, 1991 found an old run down farm house where she OK CR 31, ¶ 4, 808 P.2d 73, 76. stopped and left Logan. ¶50 Appellant was charged under 21 O.S. ¶47 Appellant was arrested and charged 2001, § 701.7 (C) with committing the crime of with Logan’s murder in 2006. At that time, first degree murder of a child by “unlawfully, Mark Bell, a sanitation worker in Woodward, willfully, and maliciously us[ing] unreasonable remembered something which occurred around force on one Logan L. Tucker, a child under the the time of Logan’s disappearance. Bell remem- age of 18 years . . .” (O.R. 1). The jury was bered that during his trash route on a Tuesday, instructed that it had to find the following ele- he came across a suitcase located across the ments beyond a reasonable doubt:

348 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 First, the death of a child under the age of ¶54 From the record before us, we do not eighteen; know exactly what happened to Logan Tucker early that Sunday morning. We do not know Second, the death resulted from the willful whether he was alive at the time he was taken or malicious using of unreasonable force; to the basement and died thereafter or whether Third, by the defendant. he was already dead when he was placed in the basement. However, we do know that (O.R. 1280) (OUJI-CR 2d 4-65(A). Appellant was his primary caregiver and the ¶51 The term “unreasonable force” was fur- last adult to ever see him alive. We do know ther defined for the jury as “[m]ore than that that at some point in time she put tape over his ordinarily used as a means of discipline.” (O.R. mouth and eyes and thereafter he neither 1281). See OUJI-CR 2d 4-40(D). See also Cole v. moved nor made any sounds. We do know that State, 2007 OK CR 27, ¶ 25, 164 P.3d 1089, 1096 she drove the lifeless little boy around in an (in proving that the defendant willfully or apparent attempt to dispose of him. Based maliciously used unreasonable force, “the State upon this evidence, the jury could logically had to prove Appellant intended to use more infer that Appellant maliciously used force on force than was reasonable under the circum- Logan beyond that ordinarily used as a means stances or, alternatively, that the amount of of discipline and that such unreasonable force force was malicious insofar as showing a wish caused his death. to injure”). ¶55 Additionally, evidence of the history of ¶52 The evidence immediately surrounding verbal and physical abuse inflicted upon the the commission of the crime is sufficient to victim by Appellant supports a finding that she show that Appellant used unreasonable force used unreasonable force on Logan which See Rawlings v. State which resulted in the death of the victim. At resulted in his death. , 1987 OK CR 135, 740 P.2d 153 (a first degree murder 3:00 a.m. Logan screamed loud enough to case where the victim’s body was never found wake up Melody Lennington. Logan was never and this Court determined the defendant’s his- seen or heard from again. Appellant told Len- tory of threats and physical abuse inflicted on nington she put her “sick” child in the barren the victim supported the finding that the vic- basement. In addition to falsely telling those tim died as a result of the criminal acts of the around her that DHS had come and picked up defendant). When considered in its entirety, the Logan, she felt the need to explain a bruise on evidence shows that Appellant did everything her arm, which she attributed to Logan. The she could to rid herself of the burden of raising wad of tape found in the basement contained Logan, who she considered a mistake and an mainly scalp hair from the victim, but one to obstacle to having the life she felt she deserved. two hairs appeared to be from an eyebrow. When she was unable to have him arrested, Appellant explained that the wad of tape was taken into state custody, placed in a mental left from a time when Logan, J.D., and other hospital or given to her parents, she resorted to children were putting tape all over themselves her expressed wish to kill her child and get during a tornado warning. However, testimo- away with it. ny from witnesses present in the basement at that time directly refuted Appellant’s claim ¶56 Appellant claims that unlike in other that the children played in the basement and murder prosecutions, in child abuse murder that there was tape in the basement. Lenning- cases, the State must prove the cause of the ton testified she kept neither tape nor candles victim’s death. In support, Appellant directs in the basement. Appellant admitted she had our attention to language in the statute which spilled candle wax on her shirt. requires “that the harm to the child, either injury or the use of unreasonable force, be the ¶53 Appellant contends that J.D.’s statements cause of death.” See 21 O.S.2001, § 701.7 (C). concerning Appellant putting food in Logan’s Appellant asserts that “the mere fact that an mouth and tape over his eyes and mouth do unreasonable force preceded a death of a child not support a finding that Logan was fatally is not sufficient for a conviction.” Appellant taped in the basement. Appellant asserts the argues that under this statutory language, only logical inference is that Logan was already “proof of some specific act is required because, dead or extremely ill when J.D. purportedly much like a typical felony-murder charge, the observed Appellant put the tape on him. act replaces the mens rea.” In support, Appel-

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 349 lant relies on Gilson v. State, 2000 OK CR 14, 8 ¶59 Mr. Christian filed an objection and P.3d 883, which she asserts “analogiz[ed] child attached two sworn affidavits, one from him abuse murder . . . to felony murder.” and one from Appellant. In her affidavit, Appel- lant listed the statements attributed to her by ¶57 Appellant’s reliance on Gilson is mis- the State and said that “none of the statements placed. In Gilson, we compared § 701.7 (C) were true.” She further stated, “[a]t the time child abuse murder to § 701.7(B) felony mur- the statements were made, I was not aware that der, only in so far as both provisions set out the person asking me questions was a law alternate ways of committing the crime. Under enforcement agent. At no time did he ever Oklahoma law, all manner of first degree mur- identify himself as a law enforcement agent.” der requires that the defendant’s actions cause (Defendant’s Exhibit A). Appellant also stated the victim’s death for a finding of guilt. See 21 that Mr. Christian had fully explained to her O.S.2001, §§ 701.7(A) – (E). To accept Appel- that if she felt any of the things said in the lant’s argument that a specific cause of death State’s recording were true, that she could file a must be proven in this case would allow report against him with the Oklahoma Bar Appellant to literally get away with murder Association, and she could have another attor- because she successfully disposed of the body. ney represent her in the case. In his affidavit, Contrary to Appellant’s argument, “a body Mr. Christian also refuted and denied the State’s need not be found in order for the crime of allegations of any conflict or impropriety. murder to be proven.” Arnold v. State, 1990 OK CR 78, ¶ 13, 803 P.2d 1145, 1148. In the present ¶60 At the hearing, the parties stipulated that case, the State was required to prove that Mr. Christian paid the rent for Appellant’s Appellant caused the victim’s death by the motel from July 9-15, 2002 (State’s Exhibit 1), unlawful, willful, and malicious use of unrea- and that he paid for and was listed as a co- sonable force. See Revilla v. State, 1994 OK CR applicant with Appellant for an apartment 24, ¶ 11, 877 P.2d 1143, 1148 (the State is not (State’s Exhibit 2). State’s Exhibit 2 also con- required to prove the element of intent to kill, tained a lease agreement for Apartment No. 52, but was required to prove that Appellant ‘will- dated July 15, 2002, listing Mr. Christian and fully’ or ‘maliciously’ injured, tortured, maimed Appellant as co-tenants. Mr. Christian also or used unreasonable force upon the victim”). stipulated that if called to testify, Jamie Hensal Based upon the evidence in this case, there can would testify that in the summer of 2004 she be no other conclusion than that Appellant found a backpack in Mr. Christian’s garage and used unreasonable force on the victim which was told by Mr. Christian that he knew it was resulted in his death. This assignment of error there, and she should put it somewhere so he is denied. could find it later if needed. The State alleged the backpack belonged to Logan Tucker and ¶58 In her second assignment of error, Appel- that his name was written on it. Mr. Christian lant contends that she was denied her constitu- would not stipulate to having any knowledge tional right to counsel of her choice in violation the backpack belonged to Logan. of the Sixth and Fourteenth Amendments to the United States Constitution and Art. 2, §§ 7 ¶61 The State then called Investigator Rick and 20 of the Oklahoma Constitution. The Stephens to the stand. Stephens testified that record reflects that on May 11, 2006, the State in his capacity as an undercover officer, he moved to disqualify David Christian from rep- moved into an apartment on July 20, 2002, resenting Appellant on the basis of an inappro- directly across from Appellant’s apartment in priate physical relationship between Mr. Chris- the Briarwood Complex in Woodward. Ste- tian and Appellant; the existence of a conflict of phens met Appellant the next weekend and interest between Mr. Christian and Appellant over the next six weeks, the two had numerous resulting from the physical relationship as well conversations. Stephens tape-recorded these as statements made by Appellant to an under- conversations. During these tape recorded con- cover officer; an improper fee arrangement and versations, Appellant told Stephens that a improper financial payment; possession of rel- movie was going to be made on Logan’s story evant evidence in the form of a book bag and that Mr. Christian would be paid from the belonging to Logan Tucker; and the appear- proceeds of the movie. Appellant also told Ste- ance of impropriety. These reasons were set phens that prior to the time they met, she had forth in detail in the State’s Memorandum of “made out” with Christian in a motel room. Law (O.R. 147-154). She said Christian told her he “wanted to have

350 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 sex with her but he wouldn’t because of her focuses on the adversarial process, not on status.” She said that at the time the police the accused’s relationship with his lawyer were executing a search warrant on her home, as such.” United States v. Cronic, 466 U.S. she and Christian were drinking at the City 648, 657, n. 21, 104 S.Ct. 2039, 2046 n. 21, 80 Limits bar. Appellant told Stephens she felt L.Ed.2d 657 (1984). Thus, while the right to that Mr. Christian did not trust her and that he select and be represented by one’s pre- was tape recording her statements. She ferred attorney is comprehended by the explained that she didn’t know who to trust, Sixth Amendment, the essential aim of the that she couldn’t even trust her attorney. Ste- Amendment is to guarantee an effective phens testified that he turned the tape record- advocate for each criminal defendant rath- ings over to the District Attorney. Stephens also er than to ensure that a defendant will testified that Appellant did not know he was inexorably be represented by the lawyer with law enforcement and he never took her whom he prefers. . . . drinking or gave her alcohol. The tape record- 486 U.S. at 158-159, 108 S.Ct. at 1696-97 (inter- ings were admitted as State’s Exhibits 4 and 5. nal citations omitted). ¶62 At the conclusion of the two day hearing, ¶65 The Supreme Court further stated: and after hearing arguments, the trial court found: The District Court must recognize a presumption in favor of petitioner’s counsel of The court finds at this time that there is a choice, but that presumption may be over- conflict of interest of counsel and the client, come not only by a demonstration of actual that it exists, that it is a serious conflict and conflict but by a showing of a serious one which inevitably must affect strategy, potential for conflict. The evaluation of the and counsel is, therefore, disqualified. facts and circumstances of each case under The court would find that a wavier would this standard must be left primarily to the be ineffectual, and that the conflict that the informed judgment of the trial court. court considers at this time is one that has 486 U.S. at 164, 108 S.Ct. at 1700. arisen out of the defendant’s conduct and her statements as well as evidence that ¶66 In United States v. Collins, 920 F.2d 619 would tend to support those. (10th Cir. 1990), the Tenth Circuit Court of Appeals stated: (Tr. 1/1/06, pg. 43).5 A defendant’s right to retain counsel of his ¶63 We review the trial court’s ultimate choice therefore represents “‘a right of con- determination of whether an actual conflict stitutional dimension,’” . . . the denial of existed de novo, and the court’s resolution of which may rise to the level of a constitu- the underlying facts giving rise to its conclu- tional violation, . . . When a court unrea- sion is subject to a “clearly erroneous” stan- sonably or arbitrarily interferes with an dard of review. Ellis v. State, 1990 OK CR 43, accused right to retain counsel of his choice, ¶ 11, 795 P.2d 107, 111 citing United States v. Soto a conviction attained under such circum- Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988). stances cannot stand, irrespective of wheth- ¶64 In Wheat v. United States, 486 U.S. 153, 108 er the defendant has been prejudiced. . . . S.Ct. 1692, 100 L.Ed.2d 140 (1988), the Supreme However, a defendant’s right to retain Court stated: counsel of his choice is not absolute and “may not ‘be insisted upon in a manner The Sixth Amendment to the Constitution that will obstruct an orderly procedure in guarantees that “[i]n all criminal prosecu- courts of justice, and deprive such courts of tions, the accused shall enjoy the right ... to the exercise of their inherent powers to have the Assistance of Counsel for his control the same.’” defence.” . . . [t]he purpose of providing . . . assistance of counsel “is simply to ensure that criminal defendants receive a fair A defendant’s choice of retained counsel trial,” Strickland v. Washington, 466 U.S. 668, must be respected “unless it would unrea- 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 sonably delay proceedings or burden the (1984), and that in evaluating Sixth Amend- court with retained counsel who was ment claims, “the appropriate inquiry incompetent or unwilling to abide by court

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 351 rules and ethical guidelines”. . .Courts 636 P.2d 358, 361. However, “[n]ot all conflicts therefore must balance a defendant’s con- may be waived.” United States v. Schwarz, 283 stitutional right to retain counsel of his F.3d 76, 95 (2nd Cir. 2002). In Schwarz, the court choice against the need to maintain the said: highest standards of professional responsi- An actual or potential conflict cannot be bility, the public’s confidence in the integ- waived if, in the circumstances of the case, rity of the judicial process and the orderly the conflict is of such a serious nature that administration of justice. no rational defendant would knowingly 920 F.2d at 625-26 (internal citations omitted). and intelligently desire that attorney’s representation. . . . Under such circumstances, ¶67 In Banks v. State, 1991 OK CR 51, ¶ 38, 810 the attorney must be disqualified, regard- P.2d 1286, 1295, this Court noted that the Okla- less of whether the defendant is willing to homa Constitution guarantees a defendant waive his right to conflict-free counsel . . . effective assistance of counsel who is free from conflicts of interest. The Court stated that the Id., at 95-96 (internal citations omitted). guarantee of effective assistance of counsel ¶70 Further, in Wheat, 486 U.S. at 163, 108 found in the State Constitution is coextensive S.Ct. at 1698-1699, the Supreme Court to that found in the Constitution of the United explained: States. Id. “The right to effective assistance of counsel includes the correlative right to repre- Thus, where a court justifiably finds an sentation that is free from conflicts of interest.” actual conflict of interest, there can be no Carey v. State, 1995 OK CR 55, ¶ 8, 902 P.2d 1116, doubt that it may decline a proffer of waiv- 1118 citing Wood v. Georgia, 450 U.S. 261, 271, er, and insist that defendants be separately 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981). represented. As the Court of Appeals for “Counsel cannot be effective if conflicts of the Third Circuit stated in United States v. interest, no matter how subtle, dull the zeal of Dolan, 570 F.2d 1177, 1184 (1978): undivided loyalty. However, the mere appear- “[W]hen a trial court finds an actual conflict ance or possibility of a conflict of interest is not of interest which impairs the ability of a sufficient to cause reversal.” Banks, 1991 OK criminal defendant’s chosen counsel to con- CR 51, ¶ 34, 810 P.2d at 1296. form with the ABA Code of Professional ¶68 In the present case, the trial court did not Responsibility, the court should not be specify a particular conflict as the basis for its required to tolerate an inadequate repre- disqualification of counsel. However, the State’s sentation of a defendant. Such representa- evidence if believed, and even when weighed tion not only constitutes a breach of profes- against counsel’s denials, is sufficient to find sional ethics and invites disrespect for the that a conflict existed sufficient to warrant dis- integrity of the court, but it is also detri- qualification of counsel. See Oklahoma Rules of mental to the independent interest of the Professional Conduct, 5 O.S. 2001, Ch., 1. trial judge to be free from future attacks App.3-A Rules 1.8(d), (e), and (j).6 On appeal, over the adequacy of the waiver or the fair- Appellant asserts that as an officer of the court, ness of the proceedings in his own court defense counsel’s opinion on the existence of a and the subtle problems implicating the conflict “ought to carry some weight.” Coun- defendant’s comprehension of the waiver.” sel’s credibility, just as that of any other wit- ¶71 The trial judges of this state are vested ness, was an issue for the trial court. Consider- with the responsibility to ensure that counsel ing counsel’s affidavit along with his argument appearing before them adhere to the standards at the hearing, (where counsel asserted the of effective assistance of counsel set out in State’s failure to prove the existence of any Strickland v. Washington, 466 U.S. 668, 104 S.Ct. actual conflict), the trial court’s credibility deci- 2052, 80 L.Ed.2d 674 (1984) and adopted by this sions are supported by the record. Court. See Bland v. State, 2000 OK CR 11, ¶ 112, ¶69 Appellant also challenges the trial court’s 4 P.3d 702, 730-731. Trial judges are required to ruling that any waiver on her part of a conflict ensure fairness and impartiality throughout of interest would be ineffectual. A defendant the proceedings. In the present case, the trial may waive any conflict of interest as long as court was faced with numerous conflicts which the waiver is made “knowingly and intelli- had the potential to adversely affect Mr. Chris- gently.” Pisano v. State, 1981 OK CR 137, ¶ 8, tian’s representation of Appellant. The record

352 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 before us shows that Mr. Christian was put in about entering the topless contest and why she the position of defending his credibility at his didn’t win.7 client’s expense in the face of evidence that he ¶74 Title 12 O.S. 2001, § 2404(B) prohibits the agreed to split the movie rights with her, that admission of evidence of “other crimes, wrongs, he paid for her living expenses, that he “made or acts” to prove the character of a person in out” with her and wanted to have sex with her order to show action in conformity therewith and that he didn’t believe her stories about the absent one of the specifically listed exceptions. disappearance of her son. In this situation, “no An act that is not a violation of the criminal law rational defendant would knowingly and intel- is nonetheless governed by § 2404(B) if it car- ligently desire” that Mr. Christian continue his ries a stigma that could unduly prejudice an representation. accused in the eyes of the jury. Eizember v. State, ¶72 On the record before us, the presumption 2007 OK CR 29, ¶ 75, 164 P.3d 208, 230. How- in favor of the defendant’s right to counsel of ever, evidence that a defendant committed choice was overcome “by a showing of a seri- other crimes or bad acts is admissible to show ous potential for conflict.” Therefore, the trial motive, opportunity, intent, preparation, plan, court properly disqualified Mr. Christian from knowledge, identity or absence of mistake or accident. Lott v. State, 2004 OK CR 27, ¶ 40, 98 representing Appellant and this assignment of P.3d 318, 334. When the State seeks to introduce error is denied. evidence of a bad act or crime other than the ¶73 In her third assignment of error, Appel- crime charged, it must comply with the proce- lant argues that the trial court erred in admit- dures in Burks v. State, 1979 OK CR 10, ¶ 2, 594 ting irrelevant and prejudicial evidence of P.2d 771, 772, overruled in part on other grounds, other bad acts which amounted to nothing Jones v. State, 1989 OK CR 7, 772 P.2d 922. Id. more than “character assassination.” Specifi- Burks requires, in part, the State give a pre-trial cally, she complains about testimony from notice of the other crimes or bad acts evidence Delbert and Faye Randell, that while visiting in it intends to introduce. Id. the Randell home, Appellant flirted with Mr. ¶75 Appellant first asserts that not all of the Randell whenever his wife left the room, that evidence complained of above was included in within a week or two of the break up of Appel- the State’s Burks notice. The record shows that lant’s marriage, she began living with a man most, but not all, of the evidence set forth she had just met, and that following the break- above was included in the State’s pre-trial up of that relationship, Appellant moved to a notice. However, Appellant has a claim of error low-income apartment and began posting on under Burks only if she can show she was sur- internet dating sites that she was looking “for prised by the evidence. Eizember, 2007 OK CR one night stands;” State’s Exhibit 1, an internet 29, ¶ 75, 164 P.3d at 230 (the purpose of the personals ad submitted by Appellant which notice requirement is to prevent surprise on the included responses by Appellant that she did part of the defense). Appellant is not complain- not have any children and she was not sure if ing about surprise in this case. Rather, she she wanted any; testimony from Michael Pettey complains the evidence was not relevant to any that his relationship with Appellant “got phys- issue in the case. ical” on the first weekend they met face to face; ¶76 As Appellant correctly notes, the State’s e-mails between Appellant and Pettey showing theory in this case was that she killed Logan so the relationship was becoming more serious to she could finally lead the life she wanted to Appellant than to Pettey and references to par- lead, free from the responsibilities of caring for ticular sexual activity they were going to him. Appellant even acknowledges that evi- engage in when they were next together; testi- dence of her prior treatment of Logan, particu- mony regarding Appellant accompanying larly when compared with that of J.D., her Pettey to a biker rally the first weekend after stated feelings toward him and her desires to Logan disappeared and her participation in a hurt and kill him were relevant to show her topless contest; and admission of photographs motive and intent on June 23, 2002. However, from the rally and the contest. Appellant also contrary to Appellant’s assertions, it was entire- complains about testimony from co-worker ly appropriate for the jury to hear evidence of Jamie Adams, that after Logan’s disappear- her string of failed relationships with men and ance, Appellant said she had only one son who her placing the blame for those failed relation- was 4 years old and that Appellant told her ships on Logan’s behavior and personality, her

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 353 increasing determination not to let Logan ruin been denied effective assistance of counsel. Id. another relationship, and her complete lack of First, the defendant must show that counsel’s remorse and concern for her missing son when performance was deficient, and second, he she was finally able to do what she wanted and must show the deficient performance preju- go to the biker rally the first weekend after his diced the defense. Id. Unless the defendant disappearance. This evidence was highly rele- makes both showings, “it cannot be said that vant to show her motive and intent. See Andrew the conviction… resulted from a breakdown in v. State, 2007 OK CR 23, ¶¶ 49-53, 164 P.3d 176, the adversary process that renders the result 191-192 (evidence of defendant’s sexual affairs unreliable.” Id. quoting Strickland, 466 U.S. at which had ended prior to the murder of her 687, 104 S.Ct. at 2064. husband was relevant to show her motive and ¶80 Appellant must demonstrate that coun- intent). sel’s representation was unreasonable under ¶77 Although relevant, evidence may be prevailing professional norms and that the excluded if its probative value is substantially challenged action could not be considered outweighed by the danger of unfair prejudice, sound trial strategy. Id. 2007 OK CR 29, ¶ 152, confusion of the issues, misleading the jury, 164 P.3d at 244. The burden rests with Appel- undue delay, needless presentation of cumula- lant to show that there is a reasonable probabil- tive evidence, or unfair and harmful surprise. ity that, but for any unprofessional errors by 12 O.S. 2001, § 2402. Some of the prior bad acts counsel, the result of the proceeding would evidence admitted in this case carried a great have been different. Id. A reasonable probabil- risk of prejudice. However, a review of the ity is a probability sufficient to undermine record shows that in light of evidence of confidence in the outcome. Id. The issue is Appellant’s own statements to numerous peo- whether counsel exercised the skill, judgment ple that she blamed Logan for the failure of her and diligence of a reasonably competent relationships, her varied and inconsistent state- defense attorney in light of his overall perfor- ments regarding his whereabouts after June 23, mance. Id. 2002, and her conduct during the days follow- ¶81 Appellant first complains that counsel ing his disappearance, any error in admitting was ineffective for failing to object to certain the bad acts evidence was harmless beyond a bad acts evidence set forth in Proposition III. reasonable doubt. The trial court did not abuse Any failure on counsel’s behalf to raise an its discretion in admitting the complained of objection is not indicative of ineffective assis- evidence. See Eizember, 2007 OK CR 29, ¶ 99, tance. As shown in Proposition III, the evidence 164 P.3d at 234. was either properly admitted or any error in its ¶78 Appellant also finds error in the trial admission was harmless. Where objections that court’s failure to issue a limiting instruction on might have been raised would have been prop- the use of prior bad acts evidence. Such an erly overruled and those that might have been instruction was never requested by Appellant, sustained would have amounted to at most and based upon the record in this case, we find harmless error had the ruling been incorrect, no plain error in the omission of such an Appellant has failed to show that any errors by instruction. See Powell v. State, 2000 OK CR 5, counsel were so great as to render the results of ¶ 68, 995 P.2d 510, 527. Accordingly, this assign- the trial unreliable. Phillips v. State, 1999 OK CR ment of error is denied. 38,¶ 104, 989 P.2d 1017, 1044. ¶79 In her fourth assignment of error, Appel- ¶82 Appellant also asserts counsel was inef- lant contends she was denied the effective fective in failing to timely appeal the trial assistance of counsel. An analysis of an ineffec- court’s decision to disqualify Mr. Christian tive assistance of counsel claim begins with the from representing her by seeking extraordi- presumption that trial counsel was competent nary relief in this Court. As shown in Proposi- to provide the guiding hand that the accused tion II, the trial court’s ruling on disqualifica- needed, and therefore the burden is on the tion was proper. Even if an appeal had been accused to demonstrate both a deficient perfor- filed it would have been denied by this Court. mance and resulting prejudice. Eizember, 2007 Therefore, Appellant is unable to show that she OK CR 29, ¶ 151, 164 P.3d at 244, citing Strick- was prejudiced by the absence of an appeal, land, 466 U.S. at 687, 104 S.Ct. at 2064. Strickland and her claim of ineffectiveness in this regard sets forth the two-part test which must be is denied. Accordingly, this assignment of error applied to determine whether a defendant has is denied.

354 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 DECISION relationship commenced, and 2) the relationship does not result in a violation of Rule 1.7(a) (2). The Judgment and Sentence is AFFIRMED. 7. The prior bad acts evidence admitted without a defense objection has been reviewed for plain error only, and none has been found. Pursuant to Rule 3.15, Rules of the Oklaho- See Eizember, 2007 OK CR 29, ¶ 92, 164 P.3d at 233. ma Court of Criminal Appeals, Title 22, Ch.18, App. (2008), the MANDATE is 2009 OK CR 1 ORDERED issued upon the delivery and fil- JARED WILLIAM JONES, Appellant v. ing of this decision. STATE OF OKLAHOMA, Appellee. AN APPEAL FROM THE DISTRICT COURT Case No. D-2005-599. January 21, 2009 OF WOODS COUNTY THE HONORABLE RAY DEAN LINDER, OPINION DISTRICT JUDGE LUMPKIN, JUDGE: APPEARANCES AT TRIAL ¶1 Appellant Jared William Jones was tried Larry T. Jordan, Gerald Weis, 823 Frisco, Clin- by jury and convicted of three counts of First ton, OK 73601, Counsel for Appellant. Degree Malice Murder (Counts I, II, and III) (21 O.S.2001, § 701.7(A)), and two counts of Shoot- Ray Don Jackson, District Attorney, Chris L. ing with Intent to Kill (Counts IV and V) (21 Ross, A.J. Laughan, Assistant District Attor- O.S.2001, § 652), Case No. CF-2003-2046, in the neys, 1600 Main Street, Ste. 5, Woodward District Court of Oklahoma County. In Count I, County Courthouse, Woodward, OK 73801, the murder of Pamela Karr, the jury found the Counsel for the State. presence of one aggravating circumstance, that APPEARANCES ON APPEAL the defendant knowingly created a great risk of death to more than one person, and set punish- Michael D. Morehead, Oklahoma Indigent ment at death. In Counts II and III, the murders Defense, P.O. Box 926, Norman, OK 73070, of Brian Galindo and Joel Platt, respectively, Counsel for Appellant. the jury found the presence of two aggravating W.A. Drew Edmondson, Attorney General of circumstances: (1) that the defendant know- Oklahoma, Keeley L. Harris, Assistant Attor- ingly created a great risk of death to more than ney General, 313 N.E. 21st St., Oklahoma City, one person and (2) that the murder was espe- OK 73105, Counsel for the State. cially heinous, atrocious, or cruel. The jury set punishment for each count at death. Regarding Opinion by: Lumpkin, J.; C. Johnson, P.J.: Con- Counts IV and V, the shootings of Tara Platt cur; A. Johnson, V.P.J.: Concur; Chapel, J.: Con- and Tara Johns, respectively, the jury set pun- cur in Result; Lewis, J.: Concur in Result. ishment at life imprisonment on each count. 1. The felony information against Appellant was filed in Wood- The trial judge sentenced Appellant in accor- ward County. Due to extensive pre-trial publicity, a change of venue dance with the jury’s determination and was granted and the trial was moved to Woods County. 2. Appellant’s father testified that he was present at Logan’s birth ordered all sentences to run consecutively. and that Logan was a single birth, there was no twin. Appellant now appeals his convictions and 3. By the time of trial, Brown’s School was known as Shadow 1 Mountain Behavioral Health Center. sentences. 4. The record does not indicate when Appellant married Mr. Pol- lard. ¶2 Appellant was convicted of shooting Joel 5. In its written order, the court stated: Platt, Brian Galindo, Pam Karr, Tara Platt and The Court, having considered the evidence presented and the argument of counsel, finds that a conflict of interest exists Tara Johns. Only the last two survived the between the defendant, Katherine Rutan, aka Katherine Pollard, shootings. The shootings were connected to and her attorney herein, David B. Christian; that the conflict of interest is a serious conflict of interest which must affect strategy; Appellant’s relationship with Carla Phillips, that any attempted waiver of the conflict of interest by the defen- his live-in girlfriend. Appellant and Phillips dant would be ineffectual; and that the State’s motion is well lived down the street from the Platt residence, taken and should be granted. 6. Rule 1.8(d) provides that prior to the conclusion of representa- where brother and sister, Joel and Tara lived tion of a client, a lawyer shall not make or negotiate an agreement and where the crime in question took place. giving the lawyer literary or media rights to a portrayal or account based in substantial part on the information relating to representation. Eight adults and two children were in the Rule 1.8(e) provides that a lawyer shall not provide financial assistance Platts’ home at the time of the shootings. Five to a client in connection with pending or contemplated litigation, except for a lawyer may advance court costs and expenses of litigation of the adults testified as witnesses for the State and a lawyer who represents an indigent client may pay court cost and and Appellant testified in his own behalf. expenses of litigation on behalf of the client. Rule 1.8(j) prohibits a sexual relationship between a lawyer and a client unless 1) a consen- While certain details of the circumstances lead- sual sexual relationship existed between them when the client – lawyer ing up to and including the shootings vary

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 355 among the witnesses, the State witnesses essen- boy’s room into the living room, an intoxicated tially testified to the following. Joel Platt fell. He got up and took a “drunken swing” at Appellant, but missed him. Others in ¶3 On the night of April 11, 2003, Ms. Phillips the house began telling, with some shouting, and her young son went to the Platt residence, Appellant to leave. while Appellant went to a car show. Before going to the show, Appellant and his friends ¶6 Despite continued efforts to get Appellant drank beer and wine and smoked marijuana. to leave, Appellant, Joel Platt, and Galindo Meanwhile, at the Platt residence, Ms. Phillips ended up in the front bedroom which Ms. Platt had joined Tara Platt, Tara Johns, and 2 other shared with her two year old daughter. Ms. women in visiting, playing video games, drink- Platt told the men to leave and climbed onto ing beer and smoking marijuana. While there her sleeping daughter’s bed and covered her were several children at the house early in the ears. Backed into a corner, Appellant took out a evening, by the time of the fatal confrontation, gun, pointed it at Joel Platt’s eyes, and only Tara Platt’s two children remained in the announced he had “two .45’s.” Joel turned to house, asleep in their beds. During the evening get Ms. Phillips. She entered the room, briefly and into the early morning hours, Ms. Phillips spoke with Appellant, then left the house. At spoke with Appellant several times over the the sight of the gun, Galindo put his hands in phone. Their conversations included some the air and told Appellant, “we’ve got children amount of verbal sparring. After a conversa- in the house, we don’t need this, put the gun tion at approximately 2:36 a.m., April 12, away.” Appellant fired 4 times at Galindo, Appellant headed to the Platt residence, armed striking him in the chest. Galindo fell in the with two .45 caliber guns in his pockets.2 middle of the bedroom floor. Pam Karr rushed in and knelt by his side. Appellant shot her ¶4 By this time, Joel Platt, Brian Galindo, twice in the head. Tara Platt put her head down Pam Karr, and Ramone Hernandez were at the and covered her daughter. Appellant turned Platt residence, having been at nightclubs ear- toward her and shot her in the shoulder and lier in the evening. Tara Platt was at the front thumb. door when she saw Appellant’s car drive up. She opened her front door to see Appellant get ¶7 Tara Johns was standing in the living out of his car, walk to her house and inform her room when she saw Appellant shoot Galindo. he had come to party with them. He entered She grabbed a phone to call 911 and turned to the living room and asked for Ms. Phillips. Ms. see Appellant facing her with a gun in each Platt indicated Ms. Phillips was in the back hand. She also saw Joel Platt facing Appellant. bedroom and she would get her for Appellant. Appellant shot Tara Johns in the hip. She held To get to the back bedroom, Ms. Platt had to on to the phone waiting for the dispatcher to walk through the bedroom where her seven pick up. Appellant then shot her in the head. year old son was sleeping. Unbeknownst to She was able to hold on until the dispatcher Ms. Platt, Appellant followed her. He reached answered, then she fell to the floor. The 911 call around her and pushed open to the door to the recorded the rest of the events at the house. back bedroom. Angry that Appellant had fol- Appellant fired two more shots and struck Joel lowed her into her son’s room, she shoved him Platt in the back of his head. He fired three backwards, causing him to fall over a child size more shots into Tara Johns as she lay on the chair. ground. ¶5 The ensuing argument over why Appel- ¶8 After having been shot Tara Platt remained lant had forced open the door and why Ms. in her daughter’s bedroom. She heard Appel- Platt had pushed him, brought Joel Platt and lant’s screams and seven more gunshots. She Brian Galindo out from the bedroom. Joel Platt then heard him leave through the front door. and Galindo tried to calm Appellant down and She picked up her daughter and started out of remove him from the child’s bedroom either by the bedroom. However, Appellant met her at placing him between the two of them with the door and forced her back into the house, each grabbing an arm, or by Joel Platt placing cornering her near the bathroom door, which his arm around Appellant’s shoulder and push- adjoined the bedrooms. Attempting to protect ing him towards the door. Appellant resisted her daughter, Tara Platt stood in front of her their efforts to remove him from the room, say- and begged Appellant not to shoot them. ing he needed to talk with Ms. Phillips. While Appellant waved his guns in her face and coming through the doorway from the little mockingly said, “don’t shoot me.” By this time,

356 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 Appellant’s guns were empty. Appellant ran tial jury under the Sixth, Eighth, and Four- out of the house and Tara Platt ran to look for teenth Amendments to the U.S. Constitution a phone, unaware that Tara Johns had already and Article 2, Sections 7, 9, 19, and 20 of Okla- called 911. homa’s Constitution. Appellant’s attack is two- ¶9 The State’s witnesses all testified that once fold. He first claims the trial judge erred by the shooting started the situation was chaotic. removing seven potential jurors (and two However, they all consistently stated the only potential alternates) for cause over defense physical contact with Appellant was Joel Platt objection and without proper questioning, i.e., and Galindo attempting to push him out the before it was adequately established that the door. The witnesses testified there was no jurors could not follow the law and consider fighting and no one hit, kick, punched or even the death penalty. Secondly, Appellant claims threatened Appellant. two prospective jurors were not removed for cause, although they should have been, thus ¶10 By contrast, Appellant testified that dur- requiring Appellant to use and lose two of his ing the altercation he felt trapped and described peremptory challenges. the group in the house as a “crazed mob” that was “tweaked out” on “crank”. Appellant tes- ¶14 “The proper standard for determining tified he was familiar with the drug from previ- when a prospective juror may be excluded for ous experience with his brother and his broth- cause because of his or her views on capital er’s friends, and that he recognized the smell punishment is whether the juror’s views would and the crazy behavior its users exhibited. ‘prevent or substantially impair the performance of his duties as a juror in accordance ¶11 Appellant said the group used profanity with his instructions and his oath.’” Williams v. and unnecessary force to remove him from the State, 2001 OK CR 9, ¶ 10, 22 P.3d 702, 709, quot- house, slammed him against a wall, restrained ing Wainwright v. Witt, 469 U.S. 412, 424, 105 his arms and ultimately choked him. Appellant S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). See also claimed that as he reached for the guns inside Eizember v. State, 2007 OK CR 29, ¶ 41, 164 P.3d the little girl’s bedroom, Joel Platt grabbed him 208, 221. A juror’s bias need not be proved with by his throat and began choking, possibly unmistakable clarity; neither must the juror grabbing one of his hands in the process. express an intention to vote against the death Appellant claimed he pulled a pistol from his Williams, left pocket, but Galindo grabbed that arm. As penalty automatically. 2001 OK CR 9, he was about to black out, he pulled the other ¶ 10, 22 P.3d at 710. Determination of a juror’s pistol from his right pocket and hit Joel with it. bias often cannot be reduced to a question and According to Appellant, this did not stop the answer session. Id. Despite the lack of clarity in choking. As he and Galindo struggled with the the written record, there are situations where pistol, it went off and fell to the floor. Appel- the trial judge is left with the definite impres- lant said Galindo grabbed the gun, but Appel- sion that a prospective juror would be unable lant shot him with the other pistol. Someone to faithfully and impartially apply the law. Id. grabbed the first pistol and moved toward This Court will look to the entirety of the Appellant, so he shot her. Appellant said he juror’s voir dire examination to determine if the them made his way to the living room, but trial court properly excused the juror for cause. found Joel coming toward him. He shot Joel Id. As the trial court personally observes the and continued shooting as he ran out the front jurors and their responses, this Court will not door, stating “they’re going to kill me.” Appel- disturb its decision absent an abuse of discre- lant offered no explanation for the shootings of tion. Id. Tara Platt and Tara Johns, but said he did not ¶15 In the present case, three of the prospec- go to the Platt residence with the intention of tive jurors, R.L., T.M., and C.D. were excused killing anyone. for cause sua sponte after questioning solely by ¶12 Other facts will be discussed as we the trial court. Defense counsel’s objections and address Appellant’s thirteen propositions of requests to attempt to rehabilitate the potential error. jurors through further voir dire questioning were denied. Relying on Mitchell v. State, 2006 VOIR DIRE ISSUES OK CR 20, 136 P.3d 671, Appellant asserts the ¶13 In proposition five, Appellant claims voir trial court abused its discretion in denying dire errors violated his right to a fair and impar- defense counsel’s requests for an opportunity

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 357 to voir dire the potential jurors further and in return a verdict of death if guilt were estab- excusing them for cause so abruptly. lished. In most cases, the prosecutor asked a ¶16 In Mitchell, this Court held that as the series of probing questions on the issue, and last-recorded answers of the potential jurors the answers to those questions demonstrated excused for cause indicated that they were not the potential jurors were deeply conflicted, able to consider the death penalty, the trial extremely pessimistic about their ability to court did not err when it struck them for cause. fairly consider a death sentence, or unable to However, as the trial court failed to ask the vote for the death penalty. None of these jurors appropriate clarifying question under our uni- indicated that all three punishment options form jury instructions about the potential would be fairly considered. The jurors’ respons- jurors’ willingness to consider the death pen- es went beyond “general objections to the alty despite their objections to it, the trial court death penalty” and “expressed religious con- abused its discretion in not allowing defense scientious scruples”. Witherspoon v. Illinois, 391 counsel an opportunity to further question the U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d potential jurors.3 776 (1968). As the trial court was able to direct- ¶17 In its voir dire examinations of R.L., T.M., ly observe and evaluate these potential jurors and C.D., the trial court followed the questions and their responses, we find no abuse of discre- set out in Oklahoma Uniform Jury Instruction tion in their dismissal for cause, even where (OUJI-CR 2d) 1-5. As to R.L. and C.D., the court defense counsel’s attempt at rehabilitation was specifically asked the prospective jurors ques- denied. See Littlejohn v. State, 2004 OK CR 6, tion number 12, alternative 2 as noted in Mitch- ¶ 49, 85 P.3d 287, 301-02. ell. The last-recorded answers of these potential ¶21 Appellant’s second attack on the voir dire jurors excused for cause indicated that they process concerns the trial court’s failure to were not able to consider the death penalty. remove prospective jurors L.J. and J.L.P. for Therefore, the trial court did not abuse its dis- cause. On the third day of voir dire, under ques- cretion in striking them for cause without tioning by defense counsel, L.J. expressed res- allowing defense counsel an opportunity to ervations “about how you shoot five people in further question the potential jurors. self-defense”. The trial court immediately ¶18 As for prospective juror T.M., the uni- adjourned to chambers with the prospective form questions were followed except question juror and all counsel. During the ensuing dis- number 12 alternative 2 was not asked. The cussion, the trial court explained that voir dire last-recorded answers of T.M. indicated he was was not the appropriate time for the attorneys not able to consider the death penalty. The trial to discuss the intricacies of self-defense. How- court’s failure to permit defense counsel an ever, the trial court needed to know if the pro- attempt at rehabilitation was not abuse of dis- spective juror was open to listening to the evi- cretion in light of defense counsel’s admission dence and law as presented during the trial, that the prospective juror’s responses were and setting aside any preconceived notions of “fairly unequivocal”. self-defense and determine whether the defen- ¶19 The remaining prospective jurors ulti- dant’s action constituted self-defense. L.J. indi- mately excused for cause initially informed the cated she could, but she wasn’t sure if she was court they were able to consider all three pun- “on a level playing field” and that she wanted ishments and the prosecution was allowed to the defendant to have a fair trial. L.J. said she voir dire. Four of these, A.H., D.N., L.W., and had some questions and she needed to let the S.H. were subsequently excused sua sponte by court know. Under questioning by the court, the court and two, G.M. and J.W., were excused L.J. indicated she could listen to the evidence at the State’s request.4 In each instance defense and follow the instructions given to the jury; counsel’s objection and request to further ques- that she was uncomfortable based upon her tion the prospective jurors was denied. notion of self-defense but she didn’t know ¶20 The record shows that under question- what the court was going to tell her about self- ing by the prosecutor, the answers of these defense. L.J. agreed with the court that even prospective jurors became equivocal. The pro- though she had some concerns, she was open spective jurors all variously commented that to all the information as it was presented at having thought about the issue overnight, they trial and she would make her decision based had strong reservations about their abilities to on the law as given to the jury by the court.

358 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ¶22 Under questioning by defense counsel, ¶25 Contrary to Appellant’s claim, L.J. was L.J. said she was very comfortable with the not “incessantly harangued” by the trial court case until the term self-defense was raised and into saying she could be a fair juror. L.J.’s desire at that point in time, she felt the State was to inform the court of her concerns necessitated ahead in the “war of persuasion”. When L.J. a more extensive voir dire than with certain indicated the defense was going to have to other jurors. However, we do not find the court work harder than the prosecution, the court improperly persuaded L.J. into saying she stepped in and told L.J. she was getting “mixed could be a fair juror. Given her responses feelings” about her ability to be a fair and throughout voir dire, we are left with the impartial juror. L.J. admitted she was giving impression that if L.J. felt she could not be a herself “mixed feelings”, and she wasn’t sure fair juror, she would have said so. Therefore, she was the right person to give the defense a we are left with judging the credibility of L.J.’s fair trial. After informing L.J. the jurors would promises to be fair and impartial — and that decide whether or not self-defense applied credibility choice is, of course, one which the based on the evidence, L.J. indicated she could trial court is much better suited to make. See be a fair juror. Defense counsel objected on the Harris v. State, 2004 OK CR 1, ¶¶ 16-18, 84 P.3d grounds there was a difference between “I’m 731, 742. We find the trial court did not abuse not comfortable with it and I can’t do it”. While its discretion in refusing to strike L.J. for cause admitting she was concerned, L.J. said she as she did not exhibit any actual bias. could be a fair juror. In asking about L.J.’s specific concerns, the trial court noted that L.J. did ¶26 Prospective juror J.L.P. was a Lieutenant not sound concerned about her ability to listen in the Oklahoma City Police Department. He to the evidence or apply the law fairly. L.J. indi- was not excused for cause sua sponte by the cated that she felt better having let the court court or challenged for cause by the defense, know she was concerned and that she could and was ultimately dismissed by the defense listen to the evidence and arrive at a proper with a peremptory challenge. Appellant claims verdict. J.L.P. was statutorily unqualified to serve as a juror pursuant to 38 O.S.2001, § 28(B)(4) and ¶23 When asked by defense counsel when Fennell v. State, 1964 OK CR 107, 396 P.2d 889. she would make the defense prove it was self- defense, L.J. replied that she was going to listen ¶27 In Fennell, this Court held that an active to everyone and apply the law as given to the duty police officer was not qualified under § 28 jury by the court. Defense counsel requested to serve as a juror. 1964 OK CR 107, ¶ 14, 396 L.J. be removed for cause arguing that her P.2d at 891. However, the statute in effect at the answers were unequivocal until she was reha- time excluded from jury service all law enforce- bilitated by the trial court’s “skillful rehabilita- ment officers or persons having custody or tion.” The State disagreed and argued that prisoners. Id. L.J.’s responses indicated she could be a fair ¶28 Section 28 has since been amended and juror. The court denied the request to excuse specifically excludes from jury service “jailers L.J. for a cause. The defense ultimately used a or law enforcement officers, state or federal, peremptory challenge to excuse the potential having custody of prisoners.” See 38 O.S.2001, juror from service. § 28(B)(4). This Court has determined this pro- ¶24 Appellant asserts L.J. should have been vision is limited to law enforcement officers or excused for cause for exhibiting actual bias jailers whose principal duty is having custody under 22 O.S.2001, § 659(2) as she “exhibited a of or supervising prisoners. See Rojem v. State, state of mind . . . in reference to the case, or to 2006 OK CR 7, ¶ 28, 130 P.3d 287, 294 (prospec- either party, which satisfies the court, in the tive juror whose job was supervising inmates exercise of a sound discretion, that he cannot from the Hobart Work Center for the city of try the issue impartially, without prejudice to Cordell was excluded from jury service under the substantial rights of the party challenging.” § 28(B)(4)). If, as Appellant claims, the Legisla- Considering the facts of this case, it is not sur- ture had intended all law enforcement officers prising that a potential juror would voice seri- to be disqualified to serve as jurors, they would ous concerns over the self-defense claim. L.J. have specifically said so as was done in subsec- may not have been appreciably different from tion (B)(3) specifically excluding sheriffs or many others who served on the jury, just a little deputy sheriffs from jury service. See 38 more vocal about her concerns. O.S.2001, § 28(B)(3).5 See also Warner v. State,

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 359 2001 OK CR 11, 29 P.3d 569, 576 (Lumpkin P.J., J.L.P. consistently maintained that he could set concurring in results). his knowledge of certain parties aside and render a fair verdict pursuant to the evidence. The ¶29 In the present case, J.L.P. was a field trial court did not abuse its discretion in failing supervisor of other police officers. He described to sua sponte strike J.L.P. for cause as he did not himself to defense counsel as a “street cop.” He exhibit any actual bias. did not reference any experience as a jailor or having custody of prisoners. Therefore, he was ¶33 Not surprisingly, Appellant finds defense not excluded under 38 O.S.2001, § 28(B)(4) counsel ineffective for failing to challenge J.L.P. from jury service. for cause. However, Appellant has failed to prove any resulting prejudice from counsel’s ¶30 While not raised at trial, Appellant now performance. See Rojem, 2006 OK CR 7, ¶ 36, argues on appeal that J.L.P. should have been 130 P.3d at 295 (any claim of jury partiality excused for actual bias under 22 O.S.2001, must focus on the jurors who ultimately sat, § 659(2). J.L.P. said that twenty-three years ear- because the loss of peremptory challenges is lier he had worked with one of the prosecutors not of constitutional dimension and Appellant at the police department, but he had not had must establish prejudice in order to get relief). any contact with her during the ensuing years; The defense ultimately removed J.L.P. with a he was acquainted with the police officers in peremptory challenge. After all of the peremp- the case on trial and supervised one of the offi- tory challenges had been exercised, the defense cers on the witness list. He said there was noth- asked for one more. J.T.W. was named as the ing in his relationship with the prosecutor or juror the defense would have excused, claim- police officers which would prevent him from ing without explanation, that he was biased being a fair and impartial juror. He said he and very young. (Tr. Vol. III, pg. 80). When that could keep all of the witnesses on a “level play- request was denied, defense counsel objected ing field”, he could be objective and fairly to the empanelling of the jury arguing that a evaluate the case and could consider all three fair jury had not been seated. punishment options. ¶34 On appeal, this Court will not grant ¶31 Under questioning by the prosecutor, relief based on the improper denial of a chal- J.L.P. said that people he had worked with had lenge for cause unless the record affirmatively told him he was one of the fairest people they shows that the erroneous ruling reduced the had dealt with. He said police officers were number of the appellant’s peremptory chal- witnesses just like any other witnesses and lenges to his prejudice, and he must demon- they had to prove their credibility; while he strate that he was forced, over objection, to expected a police officer’s integrity to be above keep an unacceptable juror. Rojem, 2006 OK reproach, that did not mean they were going to CR 7, ¶ 37, 130 P.3d at 295. Appellant has not be any more honest than any other citizen or pointed to a juror whose presence on the jury witness on the stand; he could listen to all of prevented him from having a fair trial. The the evidence and if the State did not meet all of record shows Juror J.T.W. was a sophomore in the elements, he would not hesitate to return a college and was the neighbor of another juror. verdict of not guilty. In terms of punishment, There was nothing in his voir dire which would he said he could listen to the evidence, follow render him an undesirable juror. Therefore, as the law and consider all three punishments if Appellant has not shown he was forced to keep so instructed. Under questioning by the an unacceptable juror, he has not shown he defense, J.L.P. said he had never been a homi- was prejudiced by counsel’s performance. cide detective; he could listen to the evidence and could consider all three possible punish- ¶35 Appellant also finds error in the trial ments. court’s attempt during death qualifying voir dire to explain the term “consider”. The judge ¶32 Despite his close ties to the State, J.L.P. compared her consideration of Brussels sprouts was not the sort of biased juror with whom we despite her dislike for them to the jurors’ con- found error in Rojem, 2006 OK CR 7, ¶ 29, 130 sideration of all three punishment options. P.3d at 294 (prospective juror said “he ‘could Appellant asserts this analogy confused the probably sit fairly,’ although he also admitted jury and warrants a new sentencing hearing. In that ‘if I was in [the defendant’s] place, I Mitchell, 2006 OK CR 20, ¶ 40, 136 P.3d at 690, wouldn’t want me up here,’” and agreed it fn. 97, this Court cautioned against attempts to would be appropriate for him to be excused). define or further explain the term “consider”.

360 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 The Court found “the word ‘consider’ has a State, 2007 OK CR 9, ¶ 72, 155 P.3d 796, 813; commonly understood meaning; and even Hogan v. State, 2006 OK CR 19, ¶ 29, 139 P.3d good-faith attempts to clarify its significance in 907, 920. this context invariably run the risk of shading ¶40 Based upon Appellant’s testimony that its meaning in a way that is misleading or erro- he felt under attack by a crazed mob on drugs neous”. Id. However, the Brussels sprouts anal- and shot only in self-defense, the trial court ogy (the same as used in the present case) was found the defense of self-defense had been suf- not grounds for relief in Mitchell. In the present ficiently raised and so instructed the jury.7 Evi- case, in light of the absence of any contempora- dence that the deceased victims had illegal neous objection to the analogy, and any indica- drugs in their systems would have corroborat- tions of juror confusion due to the analogy, we ed Appellant’s testimony that the group of deny Appellant’s request for a new sentencing people he encountered in the house were hearing. under the influence of illegal drugs and acting ¶36 Having thoroughly reviewed Appellant’s unusually aggressive, thus causing him to fear objections to jury selection, we find any errors for his life and act in defense of his life. See 12 did not deny him a fair trial. This assignment O.S.2001, § 2401 (relevant evidence is evidence of error is denied. having any tendency to make the existence of a fact that is of consequence to the determination FIRST STAGE TRIAL ISSUES of the action more probable or less probable ¶37 In proposition one, Appellant claims the than it would be without the evidence). In fact, trial court committed reversible error by pre- the toxicology reports would have been the cluding the defense from presenting evidence only evidence, aside from Appellant’s own tes- of the decedents’ methamphetamine use in timony, supporting his defense. support of his defense of self-defense, thereby ¶41 Evidence regarding the decedents’ violating his right to present a complete intoxication levels was also relevant to the defense, in contravention of the Sixth, Eighth, manslaughter lesser offense option. The evi- and Fourteenth Amendments of the U.S. Con- dence might have convinced jurors that Appel- stitution and Article 2, Sections 7, 9, and 20 of lant was acting out of a heat of passion, rather Oklahoma’s Constitution. than with malice. The excluded evidence ¶38 Prior to trial, the State filed a motion in could also have been used to show witness limine seeking in part to prohibit admission of bias and/or as mitigating circumstances for evidence that officers located illegal drugs and stage two proceedings. paraphernalia in the Platt residence and testi- ¶42 Therefore, we find the trial court abused mony that the victims had used illegal drugs its discretion in excluding the toxicology the night of the homicides.6 The State argued reports. However, the error is subject to harm- that such evidence was not relevant to the less error review. Having thoroughly reviewed charges filed or to support any defense. In pre- the evidence, we find exclusion of the toxicol- trial hearings, the defense responded that the ogy reports did not have a substantial influ- evidence was relevant to explain why Appel- ence on the outcome of the trial, see Simpson v. lant went to the house (he knew it was a “drug State, 1994 OK CR 40, ¶ 37, 876 P.2d 690, 702, house” and wanted to remove his girlfriend nor did it deny Appellant the ability to present from the situation) and to support a claim of a defense. The State’s evidence showed that self-defense as it explained the victims’ abnor- several people at the house had been using mally aggressive behavior. The trial court ruled marijuana that evening and/or drinking alco- that in the absence of evidence of Appellant’s hol. Several of the women admitted to using personal knowledge that the victims used marijuana and officers found some of the drug drugs that night, any evidence, including the and drug related paraphernalia on the living toxicology reports, showing that the deceased room table. If the jury so chose, this evidence victims had used drugs that night or had drugs could serve to corroborate Appellant’s descrip- in their system, was not relevant. tion of those at the house as a “crazy mob”, ¶39 The admission or exclusion of evidence “drugged up,” and “tweaked out”, and the over a timely objection is left to the sound dis- jury could have found the victims were the cretion of the trial court whose decision will aggressors. However, such a finding was high- not be reversed on appeal unless clearly erro- ly unlikely in light of evidence that Appellant neous or manifestly unreasonable. Hancock v. arrived at the Platt residence, uninvited, armed

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 361 with two guns, and repeatedly resisted the did not include a name for the jailer who alleg- homeowner’s verbal requests to leave the edly processed Appellant into jail. premises. It is this very evidence which shows ¶45 As their last first stage witness, the that even if the toxicology reports had been defense called Robert Clark informing the admitted, they would not have negated the court he was the detention officer on duty murder charge or reduced the conviction to when Appellant was arrested and would testi- first degree manslaughter. Accordingly, this fy that he observed bruises and scratch marks assignment of error is denied. on Appellant’s neck. The State objected on the ¶43 In proposition two, Appellant claims the grounds of lack of notice and argued that the trial court committed reversible error under discovery it had received listed Clark as testify- the Fifth, Sixth, Eighth, and Fourteenth Amend- ing he was with Appellant the night of the ments to the U.S. Constitution and Article II, homicide. Defense counsel responded that Sections 7, 9, and 20 of Oklahoma’s Constitu- when he prepared the initial witness list includ- tion by excluding the testimony of defense wit- ing Clark’s name he did not know what the ness Robert Clark for a discovery violation. witness would testify to and that he had just Clark was a former detention officer at the found out the subject of Clark’s testimony that day. The trial court noted that the address Oklahoma County Jail and would have report- given for Clark was his home address and that edly testified that he saw bruises and scratch his name had not been included on the list of marks on Appellant’s neck at the time he was witnesses read to the jury. The court informed arrested, several hours after the homicides. defense counsel she had seen the witness the Appellant claims this testimony would have day before when he was brought to her cham- helped corroborate his self-defense claim and bers and introduced as a witness. The trial its exclusion as a discovery violation by his court determined that someone on the defense attorney was an overly harsh remedy under team knew the substance of Clark’s testimony Oklahoma law and the specific facts of this prior to that day and could have provided the case. He claims, to the extent his trial attorney State with the information and given them failed with respect to having Mr. Clark testify, time to prepare. In the absence of such notice, that failure constituted ineffective assistance of the court found the discovery violation delib- counsel. erate and ruled Clark would not testify. ¶44 The record reflects the defense filed its ¶46 Although the criminal discovery code first witness list approximately three months provides for exclusion of evidence as a sanc- before the August 30, 2004, trial date, and Rob- tion for non-compliance, exclusion of a defense ert Clark was not listed. Changes in counsel witness is a severe sanction, in some cases too necessitated a continuance and trial was reset severe. See Rojem, 2006 OK CR 7, ¶ 49, 130 P.3d for December 2004, February 7, 2005, and Feb- at 296-98. The Sixth Amendment Compulsory ruary 14, 2005. On February 4, 2005, the defense Process Clause could be violated by excluding filed an additional witness list and included a material defense witness as a sanction for a Robert Clark’s name for the first time, an discovery violation. White v. State, 1998 OK CR address in Bethany, Oklahoma, and stated that 69, ¶ 12, 973 P.2d 306, 311 citing Allen v. State, Clark would testify that he was with Appellant 1997 OK CR 44, ¶ 11, 944 P.2d 934, 937. “Exclud- prior to the homicides. The same day the State ing a material defense witness is appropriate filed a demand for more specific discovery spe- only where the discovery violation is ‘willful cifically requesting more information on Rob- and motivated by a desire to obtain a tactical ert Clark and his proposed testimony. On Feb- advantage that would minimize the effective- ruary 11, 2005, the defense requested funds to ness of cross-examination and the ability to hire Tom Bevel as an expert and the trial was adduce rebuttal evidence.” Id. “Where the dis- again reset for May 9, 2005. At a status confer- covery violation is not willful, blatant or calcu- ence held April 4, 2005, defense counsel lated gamesmanship, alternative sanctions are informed the court he anticipated interviewing adequate and appropriate.” Id. a jailer who processed the defendant the day ¶47 There clearly was a discovery violation he was arrested, he would provide an updated in this case, but excluding Clark’s testimony witness list, and he would provide Tom Bevel’s was too severe a sanction. The circumstances report by that Friday. On April 15, 2005, the surrounding calling Robert Clark as a witness defense endorsed Tom Bevel as a witness but give the impression more of poor preparation

362 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 by defense counsel than a willful desire to gain at the time he was booked into jail were visible a tactical advantage. However, neither the trial in a photograph taken at least one year earlier. court’s erroneous exclusion of the witness’s In light of this record, Appellant has failed to testimony nor defense counsel’s apparent inef- show there is a reasonable probability that had fectiveness in the matter warrants a new trial. counsel done more to ensure Clark’s testimony ¶48 Giving Appellant the benefit of the the result of the proceeding would have been defense of self-defense, as the trial court did, different. Accordingly, this assignment of error even without Clark’s testimony, Appellant was is denied. still able to present to the jury testimony and ¶51 In proposition three, Appellant claims photographs supporting his claim of injuries reversible error occurred when Officer Hernan- suffered at the hands of Joel Platt. Appellant dez was allowed to testify regarding Carla testified to his alleged injuries and how they Phillips’ out-of-court statements made at the occurred. Defense forensics expert Tom Bevel crime scene. He contends this testimony was identified a photograph wherein he stated he improperly admitted hearsay that violated his could see a scratch on Appellant’s neck. rights under the Sixth, Eighth, and Fourteenth ¶49 As for counsel’s conduct, we review Amendments to the U.S. Constitution. Appel- claims of ineffective assistance under the stan- lant asserts he was unduly prejudiced by the dard set forth in Strickland v. Washington, 466 testimony as Phillips’ statements were “radi- U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d cally different” from the trial testimony of all 674 (1984). Warner v. State, 2006 OK CR 40, ¶¶ the other eye witnesses, including Phillips her- 198-199, 144 P.3d 838, 891-892. Strickland sets self and was the first rendition of the events forth the two-part test which must be applied surrounding the homicides that the jury to determine whether a defendant has been heard. denied effective assistance of counsel. Id. First, the defendant must show that counsel’s perfor- ¶52 Officer Hernandez testified he and his mance was deficient, and second, he must partner were the third and fourth officers to show the deficient performance prejudiced the arrive at the crime scene. After assisting in defense. Id. Unless the defendant makes both clearing the house, Officer Hernandez located showings, “it cannot be said that the conviction Ms. Phillips outside of the house and escorted ... resulted from a breakdown in the adversary her to his patrol car where he conducted an process that renders the result unreliable.” Id. initial interview with her. The officer’s testi- quoting Strickland, 466 U.S. at 687, 104 S.Ct. at mony concerning the content of that interview 2064. Appellant must demonstrate that coun- was not met with an objection from the defense. sel’s representation was unreasonable under Therefore, we review only for plain error. Simp- prevailing professional norms and that the son, 1994 OK CR 40, ¶ 2, 876 P.2d at 693. challenged action could not be considered sound trial strategy. Id. The burden rests with ¶53 On appeal, the State submits this evi- Appellant to show that there is a reasonable dence was properly admitted under the “excit- probability that, but for any unprofessional ed utterance” exception to the hearsay rule. 12 errors by counsel, the result of the proceeding O.S.2001, § 2803(2). However, in Marquez v. would have been different. Id. A reasonable State, 1995 OK CR 17, ¶ 17, 890 P.2d 980, 984- probability is a probability sufficient to under- 985 we held that statements made during the mine confidence in the outcome. Id., citing course of the police interview process after the Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, 80 investigation of a crime has begun lack sponta- L.Ed.2d at 700. neity and do not qualify as excited utterances. ¶50 Here, Appellant has failed to prove he Ms. Phillips’ statements were given as the suffered any prejudice by counsel’s conduct. result of police questioning and therefore do Clark’s testimony would have been subject to not qualify as an excited utterance. As Ms. Phil- impeachment to the extent that Appellant was lips’ out of court statements were offered for not arrested immediately after the murders the truth of the matter asserted and with no and there was nothing to show that any inju- applicable hearsay exception, it was error to ries to his neck did not occur in some other admit the testimony. However, neither this manner in the time between the murders and error nor counsel’s failure to raise an objection his arrest. Further, the State presented evidence warrants reversal of the convictions and a new that any red marks visible on Appellant’s neck trial.

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 363 ¶54 Contrary to Appellant’s claims, Ms. Phil- wounds. The photographs were relevant in lips’ out-of-court statements to Officer Hernan- establishing the corpus delicti and to disprove dez were not “radically different” from her the defense of self-defense. Although some trial testimony. Although the statements and blood is seen in certain photographs, it is mini- trial testimony differed on certain points, both mal. Therefore, we reject Appellant’s sugges- Hernandez and Phillips were subject to cross- tion the photos were introduced solely to examination. The jury also heard testimony inflame the jury. As we have said previously, from other witnesses which in some respects gruesome crimes make for gruesome photos contradicted Ms. Phillips’ recitation of events and the State was not required to downplay the to Officer Hernandez. Considering Ms. Phil- violence involved or its repercussions. See Id. lips’ out-of-court statements in light of the While certain images in the photographs are other evidence presented at trial, we find its cumulative to other photographs, Appellant erroneous admission did not have a substantial has failed to meet his burden of showing the influence on the outcome. See Simpson, 1994 repetition was needless or inflammatory. Id. OK CR 40, ¶ 37, 876 P.2d at 702. Counsel’s failure to object to the evidence does not constitute ¶58 As for the bloody clothing, two shirts and ineffective assistance of counsel as Appellant a pair of jeans worn by Galindo (State’s Exhibits has failed to show a reasonable probability that 226, 227 and 228) were identified and intro- had counsel raised an objection, the result of duced at trial. Testimony showed that the bullet the trial would have been different. This assign- holes in the shirts were consistent with Galin- ment of error is denied. do’s wounds. The shirt and jeans worn by Joel Platt (State’s Exhibits 222 and 223) were identi- ¶55 In his seventh proposition of error, fied as clean on the front except for blood on the Appellant claims certain photographs (five upper right shoulder. These exhibits corrobo- showing Pamela Karr laying dead at the scene rated the State’s argument that Platt was shot or at the morgue, four showing Joel Platt laying while running away from Appellant and not dead at the scene or at the morgue, five morgue toward him. Although the clothing corroborated photos of Brian Galindo, three hospital photos certain testimony from the State, it was not so of Tara Platt, and other crime scene photos) cumulative as to be unduly prejudicial. were cumulative to other photos that fairly depicted the crime scene. He also claims blood- ¶59 Both the photographs and clothing were stained clothing from the victims admitted as probative and that probative value was not evidence was irrelevant and highly prejudicial outweighed by any prejudicial impact. Appel- and deprived him of a fair trial in violation of lant has failed to meet his burden of prejudice, the Eighth and Fourteenth Amendments of the and we find the trial court did not abuse its U.S. Constitution and Article II, Sections 7 and discretion in admitting the evidence. 9 of Oklahoma’s constitution. ¶60 In proposition eight, Appellant claims ¶56 The admissibility of photographs is a the 911 calls were erroneously admitted because matter within the trial court’s discretion and they were more prejudicial than probative. absent an abuse of that discretion; this Court Tara Platt sponsored an audio tape recording will not reverse the trial court’s ruling. Warner, of the two 911 calls she and Tara Johns made 2006 OK CR 40, ¶ 167, 144 P.3d at 887. Photo- from the crime scene on the night of the homi- graphs are admissible if their content is rele- cide. The recordings were admitted over vant and their probative value is not substan- defense objections. (State’s Exhibit 298). The tially outweighed by their prejudicial effect. Id. first call was made by Tara Johns. She was shot The probative value of photographs of murder several times after she made the call and was victims can be manifested in numerous ways, not able to converse with the dispatcher. How- including showing the nature, extent and loca- ever, background sounds can be heard such as tion of wounds, establishing the corpus delicti, gunshots, and screams including screams by depicting the crime scene, and corroborating Appellant for Ms. Phillips, for someone to help the medical examiner’s testimony. Id. him and that “they were trying to kill” him. In the other 911 call, Tara Platt identified Appel- ¶57 The challenged photographs were rele- lant as the shooter and said that several people vant to aid the jury in understanding testimony had been shot. from police officers and the medical examiner concerning the position of the bodies when ¶61 Despite defense counsel’s initial objec- shot, and the nature and extent of the gunshot tion to the tapes, the record reflects Appellant

364 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 actually relied on the tapes to support his did not provoke another with intent to cause defense of self-defense. Therefore, his appellate an altercation or did not voluntarily enter into claim of error is not well taken. Further, the mutual combat has no duty to retreat, but may tapes materially assisted the State in disprov- stand firm and use the right of self-defense; ing the defense of self-defense as the jury could and a person is an aggressor when that person hear for itself the repercussions of Appellant’s by his wrongful acts provokes, brings about, or conduct. The tapes corroborated the testimony continues an altercation (the use of words of many of the State’s witnesses. As such, the alone cannot make a person an aggressor). cumulative nature of the evidence was not so (OUJI-CR (2d) 8-50 – 8-53). prejudicial as to warrant its exclusion. The ¶65 When the evidence is disputed as to who State is not prohibited from presenting the jury was the aggressor, the determination should be with visual evidence from the crime scene made by the jury under appropriate instruc- merely because a witness has already verbally tions. See Keith v. State, 1985 OK CR 150, ¶ 17, described the evidence. As with photographs, 709 P.2d 1066, 1070. Although the evidence in only where the evidence tends to elicit an emo- this case was conflicting, sufficient evidence tional rather than rational judgment by the jury was presented to support the instructions. should the evidence be excluded. Warner, 2006 Appellant arrived at the Platt home armed OK CR 40, ¶ 170, 144 P.3d at 887. Here, the pro- with two loaded pistols. At no time was any- bative value of the 911 calls was not substan- one else in the house armed. Although Appel- tially outweighed by the danger of unfair prej- lant had been shoved, possibly pushed, and udice; therefore the trial court did not abuse its shouted at to leave, he had not been kicked, hit, discretion in admitting the 911 recordings. punched or threatened with any bodily injury. FIRST STAGE JURY INSTRUCTIONS Yet, he refused repeated requests to leave and instead pulled out two guns and shot five ¶62 In proposition four Appellant argues people. This evidence was sufficient evidence that the trial court’s instructions to the jury to support giving the “aggressor” instructions. regarding trespasser and aggressor were improper as they were not supported by the ¶66 As for the trespasser instructions, the evidence. Appellant also finds counsel ineffec- uniform instructions given to the jury essen- tive for failing to object to the instructions. tially explained that the defense of self-defense is available to a person who was a trespasser ¶63 Having made the decision to give the only if the trespasser availed or attempted to jury instructions on the defense of self defense, avail himself of a reasonable means of retreat it was the trial court’s duty to fully instruct the from the imminent danger of death or great jury on the applicable law. See Hogan, 2006 OK bodily harm before repelling an unlawful attack CR 19, ¶ 39, 139 P.3d at 923. The determination and that a person is a trespasser if that person of which instructions are warranted by the evi- has refused to leave the land of another after a dence remains a matter of trial court discretion. lawful request to leave has been made to him. Id. Jury instructions are sufficient if when read (OUJI-CR (2d) 8-54-855). as a whole they state the applicable law. Id. We will reverse the judgment only where an error ¶67 Relying on his own testimony, Appellant in the instructions to the jury has probably argues the instruction was not warranted resulted in a miscarriage of justice, or consti- because before he was told to leave, he was tutes a substantial violation of a constitutional assaulted first by Tara Platt and then by Joel or statutory right. Id. Platt and Brian Galindo. As with many issues in this case, the evidence was conflicting. How- ¶64 The instructions on aggressor and tres- ever, the State’s evidence showed that Appel- passer were appropriately given in this case as lant was initially allowed into the home by the they fully explained the defense of self-defense homeowner, but she later told him to leave. and were supported by the evidence. The jury Contrary to Appellant’s argument, whether was given the uniform instructions on self- she initially asked him to leave before she defense. These instructions informed the jury shoved him or afterward is not a determining in part that self-defense is not available to a factor. Ms. Platt asked Appellant several times person who was the aggressor or provoked to leave. Each time he refused, often on the another with the intent to cause the altercation basis that he needed to talk with Ms. Phillips. or who voluntarily entered into mutual com- He was also told by others at the house to bat; a person who was not the aggressor and leave. Instead of retreating or leaving the

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 365 house, Appellant pulled out two guns and shot counsel’s contemporaneous objections proper- five people. When Appellant refused to leave ly preserved the issue for appellate review. after being asked to, he was clearly a trespasser. ¶70 “[A]... a criminal conviction is not to be See Walston v. State, 1979 OK CR 69, ¶ 6, 597 lightly overturned on the basis of a prosecu- P.2d 768, 770-771. Tara Platt’s shoving of Appel- tor’s comments standing alone, for the state- lant (causing him to fall over the child’s chair) ments or conduct must be viewed in context; was not a dangerous or unlawful attack which only by so doing can it be determined whether would require Appellant to fire two .45 pistols the prosecutor’s conduct affected the fairness into five people who were standing no more of the trial.” Ryder v. State, 2004 OK CR 2, ¶ 82, than 3 to 4 feet away from him. Joel Platt’s 83 P.3d 856, 875, quoting United States v. Young, leading Appellant to the door in an effort to get 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d him out of the house, after several requests had 1, 11 (1985). In order for the remarks of the been made for Appellant to leave, was a rea- prosecuting attorney to constitute reversible sonable use of force under the circumstances. error they must be flagrant and of such a Appellant further argues that “cluttering up nature as to be prejudicial to the defendant. Id. self-defense instructions” with the erroneous From a practical standpoint, every slight excess instructions imposing on him a duty to retreat by the prosecutor does not require that a ver- which did not exist under the evidence took dict be overturned and that a new trial be away his defense. The instructions on aggres- ordered. Id. sor and trespasser did not hamper Appellant’s defense. Appellant was still able to fully pres- ¶71 In the second part of her closing argu- ent his side of the story and the aggressor and ment, the prosecutor responded to defense trespasser instructions did not prevent the jury counsel’s argument that death was not the only from fully considering his defense. Based upon answer. The prosecutor reminded the jurors the evidence, the trial court did not abuse its they had taken an oath to follow the law and discretion in giving instructions on aggressor that since the evidence had been presented, and trespasser. they needed to follow that oath and render a verdict according to the law and the evidence, ¶68 As for Appellant’s claim of ineffective and this included considering the entire instruc- assistance of counsel, the record reflects defense tion packet. The prosecutor noted that a juror counsel did not object to the trespasser instruc- could have said in jury selection that he or she tions and that he requested the instructions on would vote for the death penalty and then after aggressors. Reviewing counsel’s conduct under the start of trial decide they could not do that. the standard set forth in Strickland, 466 U.S. at However, the jurors were on the case based 687, 104 S.Ct. at 2064, we find Appellant has upon their representations that they would fol- failed to show any prejudice resulting from low the law and base their verdict on the evi- counsel’s performance. See Warner, 2006 OK dence and law as given by the trial court. The CR 40, ¶ 198, 144 P.3d at 891. In light of the trial prosecutor did not tell the jury they would be court’s decision to give instructions on self- violating their oath if they considered the miti- defense, the instructions on trespassers and gating evidence. In fact, later in her argument, aggressors were appropriately given based on the prosecutor specifically addressed particu- the law and evidence in this case. We will not lar mitigating factors, telling the jury to look at find counsel ineffective for failing to raise all the mitigating evidence when weighing it objections which would have been denied. See against the evidence in aggravation. The com- Phillips v. State, 1999 OK CR 38, ¶ 104, 989 P.2d ments focused on the jurors’ duty and it did 1017, 1044. Accordingly, this assignment of not convey the message that they had to vote error is denied. for the death penalty or to decide the case based on emotional reaction. See Moore v. State, SECOND STAGE ISSUES 1987 OK CR 68, ¶ 33, 736 P.2d 161, 167. ¶69 In proposition six, Appellant claims the ¶72 Appellant also claims the prosecutor’s prosecutor’s closing argument in second stage argument led the jurors to believe they must was improper and amounted to prosecutorial reach a unanimous agreement in the second misconduct that “crossed the bounds of per- stage proceedings. Appellant compares the missible argument” by telling jurors they argument to that condemned in Hooks v. State, would be violating their oaths if they sentenced 2001 OK CR 1, ¶¶ 48-49 408, 19 P.3d 294, 316. In Appellant to anything but death. Defense Hooks, the prosecutors argued in part against

366 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 the prospect of a hung jury, anticipated defense jurors not to consider mitigating evidence. counsel’s reminder that it took only one juror However, as in Harris, the prosecutor’s improp- to avoid the death sentence, read the dictionary er argument on this issue was cured by further definition for jury nullification and told jurors argument and instruction. Considering the this would impede or attempt to prevent entire context of the closing argument, and the enforcement of the law. The prosecutors argued written instructions, there was no reasonable “one or two people could cripple the system, likelihood that the prosecutor’s arguments led cut it up and eviscerate it.” This Court “strong- the jury to believe it could not consider Appel- ly caution[ed] prosecutors against using this lant’s mitigating evidence in determining his argument during the second stage of a capital sentence. Accordingly, this assignment of error trial.” Id. is denied. ¶73 The comments in the present case are not ¶77 In proposition ten, Appellant claims the as egregious as those in Hooks. Here, the pros- evidence supporting the heinous, atrocious, or ecutor did not misstate the law, but merely cruel aggravating circumstance relating to the reiterated the jury’s promise to follow their deaths of Brian Galindo and Joel Platt was oath and the law. When read in context of the insufficient. Appellant asserts that the shoot- entire closing argument and the instructions ings rendered each of these two victims uncon- given to the jury, the challenged comments did scious nearly instantaneously and that Brian not deny Appellant a fair sentencing proceed- Galindo could have suffered nothing more ing. This assignment of error is denied. than momentary pain, possibly no more than a minute’s worth. ¶74 In proposition nine, Appellant claims the definition of mitigating circumstances in ¶78 When the sufficiency of the evidence of Oklahoma jury instruction OUJI-CR 2d, 4-78, an aggravating circumstance is challenged on combined with the prosecutor’s closing argu- appeal, this Court reviews the evidence in the ment addressing the instruction, impermissi- light most favorable to the State to determine if bly limited consideration of mitigating evi- any rational trier of fact could have found the dence and violated his right to a reliable sen- aggravating circumstance beyond a reasonable tencing proceeding, as guaranteed by the doubt. Warner, 2006 OK CR 40, ¶ 122, 144 P.3d Eighth and Fourteenth Amendments to the at 878. To prove the “especially heinous, atro- U.S. Constitution and Article II, Section 9 of cious or cruel” aggravator, the State must show Oklahoma’s Constitution. that the murder of the victim was preceded by torture or serious physical abuse, which may ¶75 We have previously rejected challenges include the infliction of either great physical to OUJI-CR 2d, 4-78 finding the instruction anguish or extreme mental cruelty. Id. 2006 OK does not unconstitutionally limit the jury’s CR 40, ¶ 129, 144 P.3d at 880.8 After making the consideration of evidence that may support a above determination, the attitude of the killer sentence less than death. Malone v. State, 2007 and the pitiless nature of the crime can also be OK CR 34, ¶ 87, 168 P.3d 185, 219; Harris v. considered. Lott v. State, 2004 OK CR 27, ¶ 171, State, 2007 OK CR 28, ¶¶ 24-25, 164 P.3d 1103, 98 P.3d 318, 358. 1113; Primeaux v. State, 2004 OK CR 16, ¶ 92, 88 P.3d 893, 909-10; Williams v. State, 2001 OK CR ¶79 The evidence shows Galindo received 9, ¶¶ 108-109, 22 P.3d 702, 727. five gunshot wounds, none of which would have caused instantaneous death. Testimony ¶76 As for the prosecutor’s arguments, we showed that when confronted by the gun review only for plain error as those comments wielding Appellant, Galindo put his hands up, now challenged on appeal were not met with asked Appellant to put the gun away and solve objections at trial. In Harris, which was handed the problem another way. The evidence as to down after the briefing in this case, we noted Galindo’s length of consciousness and actual that the problem was not so much the instruc- physical suffering was contradictory. However, tion, but the way it was being misused by pros- testimony from the medical examiner showed ecutors. There, as in the instant case, one pros- that Galindo could have remained conscious ecutor consistently argued in closing that jurors after he was shot for approximately five min- should not consider second stage evidence as utes and would have been in pain during that mitigating, since it did not extenuate or reduce time. Testimony also showed that the trajectory his guilt or moral culpability. This argument, on the wound to Galindo’s shoulder indicated just like the one in Harris, improperly told he was standing when he received that injury.

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 367 Other wounds had a trajectory indicating he the evidence was also sufficient to support the was bending at the waist at the time he was “great risk of death” aggravator. shot. The medical examiner testified the wound ¶82 The aggravating circumstance of creat- to the shoulder was not fatal and was surviving a great risk of death is proved by a defen- able. Further, after Galindo had been shot and dant’s acts which create a risk of death to fallen to the ground, Pam Karr came to his aid another in close proximity, in terms of time, before she was shot in the head. From this evi- location, and intent to the killing. Eizember, dence, the jury could easily infer Galindo saw 2007 OK CR 29, ¶ 123, 164 P.3d at 239. The his girlfriend shot before he lost consciousness. rationale behind the aggravator is that, by its While the existence of this aggravator was a very language, there must be a risk of death, close call, reviewing the evidence in the light that risk must be to more than one person, it most favorable to the State, the evidence sup- must be great, and the defendant must know ports a finding that Galindo’s death was pre- that risk exists. Id. It is not merely the death of ceded by physical suffering and mental cruelty. more than one person that satisfies this aggra- ¶80 As for the murder of Joel Platt, Appellant vator, but the acts of a defendant that create a threatened the unarmed Platt with a gun point- great risk of death to at least one other person ed at his head in a home where his sister and who is near to the homicide. Id. 2007 OK CR 29, her children were present. With his friends ¶ 125, 164 P.3d at 239. In fact the death of a held at gunpoint in the bedroom, Platt was person other than the homicide victim is not a forced to locate Appellant’s girlfriend in the prerequisite for a finding of this aggravator. Id. house. Upon returning with her, he personally The gravamen of the circumstance is not the witnessed three of his friends, including his number of persons killed, but the callous cre- own sister, shot by Appellant. He turned from ation of the risk to more than one person. Id. In that scene only to see Tara Johns being shot by the present case, Appellant emptied two semi- Appellant in the living room. In an attempt to automatic weapons in a house full of adults leave that scene, he was shot in the back of the and children, fatally wounding three. Victims head. The location where his body was found killed in the same manner, at the same place, suggests he was not attempting to leave the and at essentially the same time, presents “a house but was headed towards a back bed- classic example of the ‘great risk of death’ room, possibly where his young nephew was aggravating circumstance.” Dodd v. State, 2004 sleeping. While the physical suffering found in OK CR 31, ¶¶ 106-107, 100 P.3d 1017, 1047-48. most homicides deemed heinous, atrocious or ¶83 Therefore, we find the evidence suffi- cruel is not evident in Platt’s murder, the antic- cient to support both aggravating circumstanc- ipation of death caused by the knowledge that es. The weighing of these aggravators against others around the victim are being shot is suf- the mitigating evidence we address below ficient to support the mental anguish require- under the mandatory sentence review. ment of the aggravator. See Hancock v. State, 2007 OK CR 9, ¶ 121, 155 P.3d 796, 824 (evi- ¶84 In proposition eleven, Appellant claims dence sufficient to support aggravator where the opinion of one victim impact witness, Brian unarmed victim witnessed shooting of friend Galindo’s mother, was constitutionally unten- and was fatally shot while attempting to help able when she testified she felt “[Appellant] his friend); Hamilton v. State, 1997 OK CR 14, needs to pay for death with his life.” This ¶ 56, 937 P.2d 1001, 1014 (evidence of aggrava- Court has previously upheld admission of the tor held sufficient where four employees were opinion of a victim impact witness as to the made to kneel while each one was systemati- appropriateness of the death penalty as long as cally shot in the head and died). it is limited to the simple statement of the recommended sentence without amplification. ¶81 Appellant further asserts that without Young v. State, 2000 OK CR 17, ¶ 83, 12 P.3d 20, the improper finding of the heinous, atrocious 43. See also DeRosa v. State, 2004 OK CR 19, ¶ 81, or cruel aggravator, the jury likely would not 89 P.3d 1124, 1151-52; Murphy v. State, 2002 OK have imposed a death sentence for any of the CR 24, ¶¶ 44-45, 47 P.3d 876, 885. Appellant has homicide victims, as the “great risk of death” not presented a new argument or new author- aggravating circumstance alone could not out- ity in support his assertion we should recon- weigh the evidence in mitigation. Although we sider our decision. As such, we decline to have found sufficient evidence to support the revisit the issue and find that as the testimony heinous, atrocious or cruel aggravator, we find in this case fit within the above parameters, it

368 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 was properly admitted. This assignment of MCMI-III did not show that Appellant suffered error is denied. from bipolar disorder. He found Appellant was subject to manic episodes of an “explosive and CLAIMS OF INEFFECTIVE ASSISTANCE hostile character.” Dr. Hand also noted signs of OF COUNSEL feigning by Appellant or exaggerating his ¶85 In proposition twelve, Appellant claims symptoms, i.e., a “high debasement score.” Dr. his trial counsel was ineffective for failing to (1) Hand indicated more work needed to be done seek admission of Appellant’s alleged bipolar before he could confirm or rule out a diagnosis. disorder; and (2) make a better offer of proof Dr. Hand stated that he had shared his findings regarding the possible effects of methamphet- with defense counsel who told him not to amine use on the victims’ behavior. These assess or evaluate Appellant further. Dr. Hand arguments are further developed in the Appli- stated that defense counsel told him he felt that cation for Evidentiary Hearing on Sixth Amend- in the context of this case, the evaluation could ment Claims filed simultaneously with the direct be a potential liability and more of a risk than appeal. Rule 3.11(B)(3)(b), Rules of the Oklahoma a help to the defense. Court of Criminal Appeals, Title 22, Ch. 18, App. ¶88 Exhibit B is a sworn affidavit from Jack (2008) allows an appellant to request an evi- Randall Price, Ph.D., who states that he was dentiary hearing when it is alleged on appeal retained by appellate counsel to conduct a psy- that trial counsel was ineffective for failing to chological and neuropsychological evaluation “utilize available evidence which could have of Appellant. Dr. Price diagnosed Appellant as been made available during the course of suffering from a long-standing bipolar disorder. trial....” Id. Once an application has been prop- In arriving at this diagnosis, Dr. Price addressed erly submitted along with supporting affida- Appellant’s history of significant alcohol and vits, this Court reviews the application to see if drug abuse; his discharge from the military for it contains “sufficient evidence to show this illegal drug use; and his status as a former seller Court by clear and convincing evidence there of drugs. Dr. Price found Appellant’s attempts is a strong possibility trial counsel was ineffec- to self-medicate with drugs and alcohol only tive for failing to utilize or identify the com- served to exacerbate his mood swings, and plained-of evidence.” Rule 3.11 (B)(3)(b)(i). In “[t]he use of drugs and alcohol acted to disin- order to meet the “clear and convincing” stan- hibit his agitated mood state, leading to unpre- dard set forth above, Appellant must present dictable and aggressive behavior.” this Court with evidence, not speculation, second guesses or innuendo. Lott, 2004 OK CR 27, ¶89 Also included are affidavits from Appel- ¶ 136, 98 P.3d at 351. lant’s half-brother, Jason Jones, and cousin, Mike Ballard. (Exhibits C & D). Both men state ¶86 The defen se pre sented no evidence they grew up with Appellant and were with in either stage of trial that Appellant suffered him during the afternoon and evening of April from a mental illness or mental disorder. Wanda 11, 2003, before Appellant went to the Platt Draper, Ph.D., testif ied during the second residence. Their affidavits provided informa- stage to Appellant’s chaotic family background tion about Appellant’s family, his personality, and its negative effect on his emotional stabili- his explosive temper, as well as his drug and ty and his ability to control his aggressive ten- alcohol use in the hours before the shootings. dencies. However, she was not a psychologist Both men state they talked with defense coun- and could not and did not give any diagnosis sel but for various reasons were not called to of a mental illness or personality disorder. testify at trial. Affidavits from Appellant’s Included in the application for evidentiary mother, Tedi J. Roberts, and his uncle, Matthew hearing are affidavits which Appellant asserts Scott Ballard (Exhibits E & F) provide further show the availability of evidence before trial anecdotal evidence of Appellant’s explosive indicating he suffered from bipolar disorder. behavior. ¶87 In Exhibit A, Dr. Ray Hand, Ph.D., testi- ¶90 In a pre-trial motion hearing, defense fied that in January 2005 (approximately 4 counsel informed the court that Appellant had months before trial) he met with Appellant at a history of bipolar disorder and the informa- the Oklahoma County Jail and administered tion might be useful to the self-defense claim. some psychological tests. Dr. Hand did not Counsel indicated he was going to rely on tes- diagnose Appellant as having bi-polar disor- timony from a jail psychiatrist (unnamed at der, noting that the interpretive report for the that time) who had prescribed medication for

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 369 Appellant which would not have been pre- ¶93 The decision to instead use Dr. Draper to scribed if Appellant did not have a mental ill- explain Appellant’s family background and its ness. The court informed defense counsel that effect on him presented the more viable option if an expert was called for the defense, the State for counsel at the time. Dr. Draper testified that would be entitled to have its own expert exam- growing up, Appellant, his parents and young- ine Appellant. Defense counsel was informed er sister lived in a camper, a tent and then a that if in fact the jail psychiatrist or any expert small house built by his father. Dr. Draper said had diagnosed Appellant with a mental illness, Appellant’s mother was preoccupied with a report needed to be prepared and turned making a living, stressed and depressed over over to State. Defense counsel informed the the family living conditions and eventually court he had no intention of calling Dr. Hand emotionally withdrew from the family. She as a witness. testified that throughout Appellant’s life, his mother was not strong enough to give him the ¶91 The failure to present any evidence that kind of help he needed. Dr. Draper said Appel- Appellant suffered from bipolar disorder has lant’s parents had numerous verbal and physi- all the hallmarks of a strategic decision. Dr. cal alterations and by the time Appellant was 8 Hand, Jason Jones, and Mike Ballard all indi- years old had divorced. Appellant and his cated in their affidavits they spoke with defense younger sister lived with his mother and counsel prior to trial and none of them were Appellant became very protective of his sister. called to testify. Tedi Roberts and Michael Bal- lard testified in the second stage, but were not ¶94 By the time the children were in middle asked about Appellant’s mental state. Defense school, they were separated with Appellant liv- counsel was informed that if the defense called ing with his father and his sister living with his an expert, the State was entitled to do the same. mother. Appellant’s father abused alcohol and The failure to present the evidence was deliber- drugs. Appellant was emotionally upset by the ate trial strategy and not merely an oversight separation from his sister. He began to get into by defense counsel. trouble. Appellant had been grounded by his father on the date his sister accidentally died ¶92 Counsel’s decision not to present evi- from a fall. He felt responsible as he had not dence of any bipolar disorder was reasonable been with her and watching out for her at the under the circumstances as the State’s cross- time. After his sister’s death, his father drank examination of the witnesses would have even more while his mother became even more brought out much damaging information emotionally detached. Appellant continued to regarding Appellant’s drug use and violent get into trouble both in school and outside of temper. This is clearly illustrated by Dr. Price’s school. He moved with his mother to Florida affidavit which shows that any evidence of briefly but returned to Oklahoma City for high Appellant’s bipolar disorder would have been school. He began to hang out with “the wrong accompanied by evidence that Appellant had a crowd”, his older brother introduced him to history of significant alcohol and drug abuse marijuana, he dropped out of school, had his and the use of the drugs and alcohol lead to driver’s license suspended, and by the time he unpredictable and aggressive behavior on was eighteen had fathered a child. Appellant’s part. Further, Dr. Hand’s affidavit reveals he advised counsel there was no bipo- ¶95 Dr. Draper testified that Appellant had a lar illness, only evidence of Appellant feigning “rescue mentality toward girls in his life” and the symptoms. Evidence that Appellant may a “protective mentality” which stemmed from have suffered from bi-polar disorder contains his sister’s untimely death. Dr. Draper said the “‘double edge’ the Supreme Court has when Appellant met Carla Phillips, he believed found sufficient to justify limited investiga- her greatest problem was with drugs and he tions.” Lott, 2004 OK CR 27, ¶ 161, 98 P.3d at tried to protect her from her friends who used 356 quoting Burger v. Kemp, 483 U.S. 776, 107 “hard drugs.” She testified that because Appel- S.Ct. 3114, 97 L.Ed.2d 638 (1987). The defense lant did not have at least one emotionally stable theory that Appellant was defending himself parent in his life, he began to make poor deci- against a crazy, “drugged out” mob, would sions. She said he did not have the basis for have had much less impact in the face of infor- sympathy for himself or for others that would mation that he had schizophrenic or bipolar help to mitigate against aggression and behav- tendencies. iors that were not appropriate.

370 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ¶96 Dr. Draper also testified to anecdotal considered high. Ms. Perham stated that Dr. evidence of Appellant’s good character. She Kemp did not provide her with specific details testified that he once sat with sick puppies, regarding how the methamphetamine could nursing them for several days until they have affected the behavior of the victims, regained their health; he had previously except to say that each individual may react stopped at the scene of a car wreck and helped differently to the drug and it is not possible to pull a woman out of a damaged car; and he predict exactly how an individual will behave. had wrestled a gun away from his brother who had pointed it at his uncle. ¶100 Exhibits H and H2 are affidavits from David R. Wallace, Ph.D., who was contacted by ¶97 The affidavits from Dr. Hand and Dr. appellate counsel to evaluate the levels of vari- Price and the testimony of Dr. Draper all con- ous substances found in the system of the tain information unflattering to Appellant. homicide victims and determine the possible However, Dr. Draper’s testimony contained effects of the substances on their behavior at more evidence likely to be considered mitigat- the time of the offenses. Dr. Wallace stated that ing than did the affidavits of Dr. Hand and Dr. if asked to do so he would testify in part that Price. This record shows “a reasoned strategic methamphetamine use can lead to aggressive decision, made after a reasonably thorough behavior and psychological disorders such as investigation, not to present [evidence of bipo- depression, hallucinations, paranoia. He also lar disorder] because it would have opened the stated that use of diazepam could lead to floodgates to evidence very harmful to Appel- increased aggression. He opined that the use of lant.” Id., 2004 OK CR 27, ¶ 162, 98 P.3d at 356. methamphetamine, diazepam, and alcohol by Even with the evidence that Appellant might the victims “very well could have been a pre- have suffered from a bipolar disorder, the cipitating factor in a potentially aggressive and State’s evidence in aggravation was great in over-exaggerated response to a perceived hos- this case, while the mitigating evidence was tile threat.” much weaker. Presentation of the evidence would not have significantly influenced the ¶101 The record reflects the trial court took jury’s appraisal of Appellant’s moral culpabil- the position that it was first necessary for ity. Id., 2004 OK CR 27, ¶ 162, 98 P.3d at 356. Appellant to show that he was aware of the victims’ methamphetamine use and that his ¶98 In light of this record, we find Appellant decision to use deadly force in self-defense was has failed to show by clear and convincing evi- influenced thereby. Appellant could not make dence a strong possibility that defense counsel such a showing as he had not previously met was ineffective for failing to investigate further Brian Galindo or Pam Karr. Therefore, the trial and utilize the complained-of evidence. There- court found evidence of the victim’s metham- fore, an evidentiary hearing is not warranted. phetamine was not relevant evidence. Having ¶99 As for Appellant’s claim that an eviden- reviewed the record, no amount of evidence tiary hearing is warranted because counsel submitted in an offer of proof about the effects failed to make a sufficient offer of proof regard- of methamphetamine use would have altered ing the possible effects of methamphetamine the trial court’s ruling. use on the victims’ behavior, three affidavits ¶102 Accordingly, having thoroughly are offered. In Exhibit G, appellate investigator reviewed Appellant’s Application and accom- Jolene Perham stated she interviewed chief panying affidavits, we find he has failed to medical examiner Dr. Jeffrey Gofton who per- show by clear and convincing evidence a formed the autopsy on Brian Galindo. She strong possibility that defense counsel was states that Dr. Gofton informed her he did not ineffective for failing to investigate further and think the .25 micrograms per milliliter of meth- utilize the complained-of evidence. We decline amphetamine found in Galindo’s system to be to grant Appellant’s application for an eviden- particularly high considering his size and tiary hearing on Sixth Amendment grounds. weight. Ms. Perham also stated she interviewed Dr. Phillip Kemp, Chief Forensic Toxi- ¶103 Further, we have reviewed the claims of cologist, who determined that the amount of ineffective assistance raised in the appellate methamphetamine found in Galindo’s system brief under the standard set forth in Strickland was considered to be a high level and the v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, amount of methamphetamine found in Joel 2064, 80 L.Ed.2d 674 (1984). See Warner, 2006 Platt’s system and Pamela Karr’s system was OK CR 40, ¶ 199, 144 P.3d at 892. Based upon

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 371 the above discussion, we find Appellant has overcome his feelings of survivor’s guilt and not shown that in failing to present evidence of helplessness over his sister Tia’s death; he is Appellant’s alleged bi-polar disorder and extremely remorseful for what he did and even methamphetamine use by the decedents that asked his friend Andy Yarber to kill him after counsel’s performance was deficient or that he the shootings; Appellant turned himself in and was prejudiced by counsel’s conduct. There- cooperated fully with the police; he experi- fore, the claim of ineffective assistance of coun- enced a troubled family life with both parents sel is denied. abandoning him emotionally and many times ACCUMULATION OF ERROR CLAIM physically, when he needed their guidance, support and help to deal with the break up of ¶104 In his thirteenth assignment of error, the family and then his sister’s untimely death; Appellant contends that, even if no individual and Appellant was denied parental guidance error merits reversal, the cumulative effect of setting appropriate limits and experiences to such errors warrants either reversal of his con- build a positive self image and emotional sta- viction or a modification of his sentence. A bility. This evidence was summarized and pre- cumulative error argument has no merit when this Court fails to sustain any of the other sented to the jury in Instruction No. 10 along errors raised by Appellant. Warner, 2006 OK with any other mitigating evidence the jury CR 40, ¶ 223, 144 P.3d at 896. However, when might find existed. there have been numerous irregularities dur- ¶107 Upon our review of the record and care- ing the course of a trial that tend to prejudice ful weighing of the aggravating circumstances the rights of the defendant, reversal will be and the mitigating evidence, we find the sen- required if the cumulative effect of all the tence of death to be factually substantiated and errors is to deny the defendant a fair trial. Id. appropriate in each of Counts I, II and III. While certain errors did occur in this case, even Under the record before this Court, we cannot considered together, they were not so egre- say the jury was influenced by passion, preju- gious or numerous as to have denied Appel- dice, or any other arbitrary factor contrary to lant a fair trial. Therefore, no new trial or 21 O.S.2001, § 701.13(C), in finding that the modification of sentence is warranted and this aggravating circumstances outweighed the assignment of error is denied. mitigating evidence. Accordingly, we find no MANDATORY SENTENCE REVIEW error warranting reversal or modification. ¶105 Pursuant to 21 O.S.2001, § 701.13(C), we DECISION must determine (1) whether the sentence of death was imposed under the influence of pas- ¶108 The JUDGMENTS and SENTENCES sion, prejudice or any other arbitrary factor, for First Degree Murder are AFFIRMED, as are and (2) whether the evidence supports the the JUDGMENTS and SENTENCES for Shoot- jury’s finding of the aggravating circumstances ing with Intent to Kill, and the APPLICATION as enumerated in 21 O.S.2001, § 701.12. Turning FOR EVIDENTIARY HEARING ON SIXTH to the second portion of this mandate, the jury AMENDMENT CLAIMS IS DENIED. Pursu- found the existence of the “great risk of death” ant to Rule 3.15, Rules of the Oklahoma Court of aggravator in each of counts I, II and III and the Criminal Appeals, Title 22, Ch.18, App. (2007), existence of the additional aggravating circum- the MANDATE is ORDERED issued upon the stance “heinous, atrocious or cruel” in Counts delivery and filing of this decision. II and III (the murder of Brian Galindo and Joel Platt, respectively). See 21 O.S.2001, AN APPEAL FROM THE DISTRICT COURT § 701.12(2),(4). As discussed in Proposition Ten, OF OKLAHOMA COUNTY the aggravators were supported by sufficient THE HONORABLE SUSAN P. CASWELL, evidence. DISTRICT JUDGE ¶106 Appellant presented four witnesses in APPEARANCES AT TRIAL mitigation, his mother, father, uncle, and Dr. C. Thomas Kite, 2601 NW Expressway, Ste Wanda Draper. These witnesses testified gener- 100W, Oklahoma City, OK 73102, Counsel for ally that at the time of the murders, Appellant Appellant was overcome by strong emotions; he was twenty-three years old at the time of the mur- James T. Rowan, 228 Robert S. Kerr, Ste 220, Okla- ders; Appellant never had anyone help him homa City, OK 73102, Counsel for Appellant

372 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 Joseph Ashbaker, 228 Robert S. Kerr, Oklahoma amphetamine, and trace elements of diazepam and nordiazepam (Court’s Exhibit 3). City, OK 73102, Counsel for Appellant 7. This writer finds that in responding to the group of unarmed individuals by brandishing weapons, Appellant lost the right of self- Angela J. Smith, 831 NW 4th Street, Oklahoma defense. See Ruth v. State, 1978 OK CR 79, ¶ 7, 581 P.2d 919, 921-922 (if City, OK 73106, Counsel for Appellant a person by provocative behavior initiates a confrontation, even with no intention of killing the other person, he loses the right of self- defense). Therefore, the trial court should not have instructed the jury C. Wesley Lane II, District Attorney; Cassandra on the defense of self-defense. Consequently, the toxicology reports Williams, Sandra Elliott, Assistant District were not relevant evidence and were properly excluded. There was no evidence that Appellant knew the decedents were acting under the Attorneys, Oklahoma County Office Bldg., 320 influence of illegal drugs, he only guessed that they were. There was Robert S. Kerr, Suite 505, Oklahoma City, OK no evidence that any methamphetamine found in the decedents’ sys- 73102, Counsel for the State tem contributed to any aggressive behavior they may have shown. There was no consensus by the expert witnesses that a particular behavior would be exhibited by a person under the influence of drugs. APPEARANCES ON APPEAL Therefore, evidence that the decedents may have used methamphetamine before the homicides was not relevant as it did not make it more William H. Luker, Okla. Indigent Defense Sys- or less likely that Appellant acted in self-defense in shooting the tem, P.O. Box 926, Norman, OK 73070, Counsel unarmed victims. See 12 O.S.2001, § 2401. Further, the danger of unfair prejudice substantially outweighed any probative value as the evi- for Appellant dence could have led the jury to draw unnecessary and unfavorable conclusions regarding the decedents’ character. See 12 O.S.Supp. 2003, W.A. Drew Edmondson, Attorney General of § 2403. However, I recognize the Court’s decision to the contrary and Oklahoma; Jennifer J. Dickson, Assistant Attor- accede to that decision. ney General, 313 N.E. 21st Street, Oklahoma 8. 21 O.S. 2001, § 701.12(4). City, OK 73105, Counsel for the State CHAPEL, J., DISSENTING: Opinion by: Lumpkin, J. ¶1 The majority finds three separate errors in the presentation of first-stage evidence in this C. Johnson, P.J.: Concur in Result case. The majority finds the trial court erred in A. Johnson, V.P.J.: Concur prohibiting Jones from presenting evidence Chapel, J.: Dissent which was relevant and would have assisted Lewis, J.: Concur jurors, and in allowing hearsay evidence. How- 1. Appellant’s Petition in Error was filed in this Court August 19, ever, the majority concludes that these serious 2005. His brief was filed October 23, 2006. The State’s brief was filed errors were harmless. In doing so, the majority February 20, 2007. Appellant’s reply brief was filed March 12, 2007. The case was submitted to the Court March 1, 2007. Oral arguments speculates that the evidence would have had were held July 22, 2008. no effect on the jury’s verdict. I cannot agree 2. Appellant claimed this was standard practice, as he normally with that conclusion. I also believe that jurors carried guns in his neighborhood for protection. Also, he did not want to leave the guns at his house with his friends, who were hanging L.J. and J.L.P. should have been excused for about and, ironically, not to be trusted with guns. cause. I dissent. 3. See OUJI-CR 2d (Supp. 2000) 1-5, Question 12, Alternate 2 (for prospective juror with reservations about death penalty) (“If you ¶2 I begin by discussing Jones’s voir dire found beyond a reasonable doubt that the defendant was guilty of murder in the first degree and if under the evidence, facts and circum- claims in Proposition V. I believe that in the stances of the case the law would permit you to consider a sentence of recent past the Court has unnecessarily com- death, are your reservations about the penalty of death so strong that regardless of the law, the facts and circumstances of the case, you plicated our discussion of claims involving would not impose the penalty of death?”). Mitchell, 2006 OK CR 20, ¶¶ jurors who should have been excused for 43-44, 136 P.3d at 691-692, fn. 100 & 103. 4. L.W. and S.H. were called as alternates. (Tr. Vol. III, pg. 86). cause. In this writing, I explain that belief. I 5. Effective November 1, 2008, § 28 was amended to delete from the encourage the Court to give guidance to trial section the phrase “jailers or law enforcement officers, state or federal, courts and counsel by returning to the simple having custody of prisoners.” Added as subsection D, the following language was inserted: “Jailers or law enforcement officers, state or application of our standard of review, in which federal, shall be eligible to serve on noncriminal actions only.” See 28 the Court is not forced to second-guess or sub- Okla. Sess. Laws 339 (2008). This amendment clearly reflects the Leg- islature’s intention to disqualify law enforcement officers from jury stitute our own judgment for that of defense service in criminal matters. However, in the analysis of Appellant’s counsel. claim of error, we apply the law in existence at the time of the commission of the crime. See Nestell v. State, 1998 OK CR 6, ¶ 5, 954 P.2d 143, ¶3 I disagree with the majority’s resolution 144 (“new legislative enactments should only be applied prospectively from their effective date, unless they are specifically declared to have to and analysis of Proposition V. I note at the retroactive effect.”) outset that the majority’s entire legal discus- 6. The toxicology reports showed Pam Karr’s blood contained 2.0 micrograms per milliliter of methamphetamine, 0.18 micrograms per sion of Jones’s claims regarding challenges for milliliter of amphetamine, and trace elements of diazepam and nordi- cause is structurally flawed, and thus incoher- azepam (Court’s Exhibit 1); Joel Platt’s blood contained 0.82 micro- ent. Jones claims that the trial court erred in grams per milliliter of methamphetamine, 0.16 micrograms per milliliter of amphetamine, and trace elements of diazepam and nordiazepam rejecting his challenge to L.J., and that trial (Court’s Exhibit 2); and Brian Galindo’s blood contained .25 micro- counsel was ineffective for failing to challenge grams per milliliter of methamphetamine and trace elements of diazepam and nordizaepam; Pam Karr’s blood contained 2.0 micrograms J.L.P. An appropriate appellate analysis would per milliliter of methamphetamine, 0.18 micrograms per milliliter of first review the merits of the claim regarding

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 373 L.J., including a discussion of whether Jones sider all three punishments. However, any preserved that issue for review. Then the analy- doubt about juror bias should be resolved in sis would move to the ineffective assistance the defendant’s favor.1 A juror’s bias need not claim, perhaps using a substantive analysis of be proved with unmistakable clarity.2 Based on the underlying challenge for cause to J.L.P. to the record, I doubt both jurors’ fitness to serve discover whether such a challenge would have on this jury. succeeded, and deciding whether Jones was ¶6 Prospective juror L.J. made clear that she prejudiced by counsel’s failure to make the had grave reservations about her ability to give challenge. Jones a fair trial if he claimed self-defense for ¶4 The majority follows another, more con- killing five victims. The trial court continued to fusing, path. The majority begins appropriate- question L.J., rejecting her own statement that ly, by discussing the merits of the claim regard- she was very concerned about her ability to be ing L.J., and concludes that the trial court did a fair juror, until the juror finally conceded that not err in denying the challenge for cause. she could listen to the evidence and reach a However, the majority does not conduct the proper verdict. The majority defers to the trial second part of the analysis and determine court’s judgment of L.J.’s credibility. I find the whether that claim was preserved by Jones’s record is not ambiguous and supports the con- request for an extra peremptory hearing to clusion that L.J. should have been removed for remove a sitting juror, J.T.W. The majority cause. instead moves on to a substantive analysis of ¶7 Prospective juror J.L.P., an Oklahoma City the juror J.L.P., reviewing the record to deter- police lieutenant, may or may not fall within mine whether J.L.P. was subject to a challenge the new statutory exclusions from jury service for cause, even though this is not raised as a involving law enforcement officers. I note that substantive proposition of error. After deter- the majority’s reading of the revised statute is mining that J.L.P. was not subject to a challenge extremely narrow.3 I am not convinced that the for cause, the majority turns to the ineffective Legislature intended to automatically exclude assistance claim. However, the majority does only jailers or guards with this statutory revi- not simply hold that, as the opinion just found sion. I believe it is likely that J.L.P., in his cur- that J.L.P. was not subject to a challenge for rent assignment as a field supervisor or street cause, counsel was not ineffective for failing to cop, has some responsibility for custody of make such a challenge. Instead, the opinion prisoners.4 Jones argues J.L.P. also should have chooses this time to review Jones’s effort to been excused for actual bias. I agree. J.L.P. preserve his appellate issue of challenges for knew several of the officers connected with the cause by requesting an extra peremptory. The case and supervised one of the State’s wit- majority’s ineffective assistance analysis never nesses. He stated that he was fair and would refers to J.L.P.’s fitness as a juror, but reviews not be biased toward police officers. However, the information in the record about J.T.W., the as I read the record his professional duties and juror Jones said he would excuse with an extra associations indicate that he should have been peremptory were one available. Any discus- excused for cause.5 sion of J.T.W.’s fitness is entirely irrelevant in this context. This is particularly true because ¶8 The majority opinion misstates the law the record shows that Jones named J.T.W. as an regarding preservation of the issue of chal- unacceptable juror in the context of the trial lenge for cause for appellate review. A defen- court’s failure to excuse L.J. As trial counsel did dant who raises this claim must first preserve it not ask that J.L.P. be excused for cause, his by naming, at trial, an unacceptable sitting juror he would have excused with another extra peremptory request could not be associ- 6 ated with J.L.P. and any discussion of Jones’s peremptory challenge. The majority errone- attempt to preserve the issue of challenges for ously concludes that Jones failed to do this, cause has no bearing on the ineffective assis- although the record and the opinion itself tance claim. show otherwise. After using his last peremptory challenge Jones asked for an extra chal- ¶5 Jones claims that he was forced to use lenge, naming juror J.T.W. as the juror he peremptory challenges on two jurors who wished to excuse. Jones stated that J.T.W. was should have been excused for cause. Each of both biased and very young. The majority these jurors stated at some point that they reviews this as though it was a substantive could be fair, listen to the evidence, and con- issue and concludes that, in its opinion, J.T.W.

374 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 was not unacceptable. Therefore, the majority in a death case that a trial judge flatly refuses to finds, Jones “has not pointed to a juror whose excuse any juror for cause. Assume also that presence on the jury prevented him from hav- nine jurors clearly state that they are irrevoca- ing a fair trial.”7 bly committed to the view that any person who commits premeditated murder forfeits the right ¶9 This conclusion misstates the standard of to live and must be given a death sentence. review and shows a basic misunderstanding of Assume further that the defense challenges the law in this area. The requirement that a each such juror for cause and each challenge is defendant name an unacceptable juror is a denied by the trial judge. Assume that in each simple procedural requirement designed to instance the defense uses one of its peremptory preserve the voir dire issue for appeal. That is challenges to remove each one of these biased all. A defendant cannot separately raise an jurors and in each instance objects, asks for an “unacceptable juror” claim as a substantive additional peremptory, and names another issue; the substantive issue on appeal is always juror who is unacceptable to the defense. Now, whether a different juror should have been here we have a case where a defendant has excused for cause. In determining whether this been erroneously denied all nine of his statuto- procedural requirement is met we ask whether rily allotted peremptory challenges. If the issue the defense named an unacceptable juror. If is raised on appeal what does this Court do? that was done, we proceed to the substantive Do we review whether a defendant has been voir dire issue, which is whether another juror denied a fundamental right to nine peremptory should have been excused for cause. If we find challenges by determining whether or not the the trial judge did not err in not removing the nine jurors should have been excused for juror for cause, we do not reach the substantive cause, or do we look at the nine jurors who sat voir dire claim unless there is plain error pres- and were deemed unacceptable to the defense ent. A defendant need not show, to meet this and determine whether they are unacceptable procedural requirement, that the juror’s pres- to us? The answer, of course, is obvious. I rec- ence prevented him from having a fair trial. He ognize the hypothetical is extreme. But it puts need only show that he found that particular the issue in perspective. And, because a single juror unacceptable and would have excused juror can determine whether or not a death that juror with a peremptory had he been able sentence is imposed, the loss of a single peremp- to do so.8 It is critical that we keep in mind here tory challenge can mean the difference between that the ultimate issue involved in this require- life or death. ment to “preserve” the error is whether or not the trial court erred in failing to excuse a par- ¶12 As I note above, the majority apparently ticular juror for cause, thereby causing the is confused by the ineffective assistance of defense to forfeit a peremptory challenge. counsel claim. In reviewing the ineffective assistance of counsel claim the majority natu- ¶10 The majority, by contrast, treats the pro- rally begins by looking to see whether, if the cedural requirement as a separate claim requir- claim were true, Jones suffered any prejudice. ing substantive appellate review. This adds an If he were not prejudiced by counsel’s failure to unnecessary layer of complexity to a simple challenge juror J.L.P. for cause, counsel would test: did the defendant preserve the claim?9 not be ineffective. However, the majority’s This Court cannot determine on review wheth- analysis goes astray. Instead of reviewing the er any particular juror was unacceptable to the record surrounding J.L.P., the majority reviews defense. That is the standard of review and the the record surrounding the unacceptable juror, point of the requirement — the defendant must J.T.W., concludes that juror was not unaccept- claim that some other juror was unacceptable able, and finds that Jones did not show J.T.W.’s to him, and he would have used a peremptory presence prevented him from having a fair challenge against that juror. This Court’s own trial. That is simply not the question. Jones has opinion of the sitting jurors is simply irrelevant asked us to determine whether counsel should to this inquiry.10 The majority reviews the have challenged J.L.P. for cause. Any discus- record and determines that the Court would sion of this issue should revolve around J.L.P. not find J.T.W. unacceptable. This is exactly the The majority already conducted a substantive sort of inquiry we cannot and should not analysis of J.L.P.’s fitness to serve. While I do engage in. not agree with the conclusion, that discussion ¶11 The absurdity of the majority’s approach would serve as an appropriate basis for rejec- can be shown by a simple hypothetical. Assume tion of the ineffective assistance claim. The

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 375 majority apparently wants to discuss the “unac- udiced by counsel’s failure to correctly endorse ceptable juror” question. If so, the proper place the witness. The Court suggests that the evi- for that discussion is in the analysis of the dence might have been impeached with other claim regarding the challenge for cause to L.J., evidence suggesting that Jones got the marks which currently lacks any discussion of wheth- either a year before the crimes or in the hours er Jones preserved that claim for appellate afterwards. The Court thus finds that the evi- review. Because I believe J.L.P. should have dence could not have affected the jury’s delib- been excused for cause, I would find counsel erations because it might be attacked in two was ineffective for failing to so request. inconsistent ways. This makes no sense. Clark could have presented eyewitness testimony ¶13 I agree with the majority’s conclusion in which corroborated Jones’s claims that he had Proposition I that the trial court should have fought with the victims. While this was cer- allowed Jones to present evidence that the vic- tainly subject to impeachment, it would have tims had detectable, and even significant, provided jurors confirmation of Jones’s story. amounts of methamphetamine in their blood at The evidence came not from Jones’s friends or the time of their deaths. However, I cannot family but from a detention officer, which agree that the exclusion of this evidence had no might have made it more credible in jurors’ effect on the jury’s decisions. Jones claimed eyes. This claim must be analyzed in light of that he was faced with a mob of crazed adults the juror’s inability to consider forensic evi- under the influence of methamphetamine, dence which also supported Jones’s story. which made them unpredictable and belliger- Taken together these two rulings prevented ent. The majority suggests that other evidence jurors from hearing any independent evidence showed the victims had been drinking and supporting Jones’s claims, or considering it as smoking marijuana, so there was evidence to they deliberated. I simply cannot find that support Jones’s claim that the victims were on exclusion of this evidence could have had no drugs. This is ridiculous. Even a lay person is effect on the jury’s decisions. aware that marijuana and alcohol use has very different effects and results in different behav- ¶15 I also agree with the majority finding in ior than the use of methamphetamine. Jones Proposition III that the trial court erred in was making a very specific claim about a par- allowing Officer Hernandez to repeat hearsay ticular type of drug use commonly known to statements from Carla Phillips during his testi- lead to aggressive behavior and bad judgment. mony. Once again, I do not agree this error was This claim was supported by forensic evidence. harmless. The majority states that Phillips’s I agree with the majority that the circumstances statements as reported by Hernandez did not of this crime — Jones entered the house armed differ radically from her trial testimony. It is and shot multiple unarmed victims several true that parts of the out-of-court statement times — make it unlikely that jurors would and testimony coincide, and that other wit- believe a self-defense claim. For that reason I nesses supported parts of the out-of-court find the admission of this evidence essential. statement. However, the main point of Phil- Forensic evidence corroborating Jones’s claim lips’s statement to Hernandez — and the ques- that his victims were high on methamphet- tion at issue in the trial — is that without argu- amine might well have made a difference to ing with any of the victims, and after being jurors who were reviewing the possibility that asked to leave once, Jones began shooting ran- he acted in the heat of passion, who were judg- domly at the people in the house. This differs ing witness credibility, and who were review- dramatically from Phillips’s trial testimony, ing mitigating circumstances. I cannot agree testimony of other witnesses, and Jones’s story, with the speculation that the admission of all of which state that Jones began arguing with forensic evidence supporting Jones would have Tara Platt and the conflict escalated before the had no effect on the jury. shooting began. Jurors should not have heard Phillips’s hearsay statements, and they sharply ¶14 I agree with the majority finding in contradicted the remainder of the testimony Proposition II that the trial court erred in refus- describing the circumstances of the crime. Par- ing to allow defense witness Robert Clark to ticularly when combined with the errors in testify he saw bruises and scratch marks on Propositions I and II, which left the jury unable Jones’s neck when he was arrested several to consider independent evidence supporting hours after the killings. I cannot agree that this Jones’s story, I cannot find this error had no error was harmless, or that Jones was not prej- effect on the jury’s deliberations.

376 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ¶16 Jones committed a series of horrible, hold that the statute applies exclusively to persons having custody of prisoners as their primary duty. Rojem, 130 P.3d at 294. senseless crimes. As the majority notes, a jury 4. I agree with my former colleague Judge Strubhar, who noted that which heard relevant and admissible evidence a police officer who patrolled in a marked unit and made arrests “necessarily had custody of prisoners from time to time” and should be supporting Jones’s version of events may well excused for cause under 38 O.S.2001, § 28. Warner, 29 P.3d at 572 n. 5. have convicted him and returned the same 5. See Plantz v. State, 1994 OK CR 33, 876 P.2d 268, 278 (record belied juror’s claim that she could be fair); Tibbetts v. State, 1985 OK CR 43, 698 sentences as he received. However, Jones’s jury P.2d 942, 946 (juror could not be impartial, despite her statement oth- did not have the chance to consider that evi- erwise, where her son-in-law was county deputy sheriff, had applied for a job with the county district attorney, and was present at trial); dence, although he tried to offer it. I believe Hawkins v. State, 1986 OK CR 58, 717 P.2d 1156, 1158 (despite stating she that this Court should not substitute its after- could be fair, wife of county sheriff should not have been placed in the the-fact judgment for that of a fully informed potentially compromising position of juror). 6. Browning v. State, 2006 OK CR 8, 134 P.3d 816, 830; Warner, 29 jury. I would reverse and remand for a new P.3d at 574. trial, where a jury may consider the evidence 7. Majority Opinion at 16. I suspect the majority uses this phrase, which has no place in the test of whether a defendant preserved a chal- for and against Jones. I also note that this opin- lenge for cause claim for review, because the majority is writing in the ion is yet another case in which a majority context of the ineffective assistance of counsel claim and inexplicably chose this avenue to deny that claim. This is one example of the legal opinion in a death case finds multiple serious incoherence caused by the opinion’s flawed structure on this issue. errors, but affirms a death sentence by con- 8. Jones v. State, 2006 OK CR 17, 134 P.3d 150, 155; Hanson, 72 P.3d at 49. cluding the errors were individually harmless. 9. This is like an objection at trial. Counsel must preserve a claim Certainly there is a place for the harmless error for appellate review by objecting. This Court will look at the record to see whether the defense objected and, if he did, will review the claim concept in our law. But I believe we should be of error on its merits. We may well find that the claim fails on the very careful about its use where multiple seri- merits. However, we do not then say that, because the claim failed on ous errors occur. I dissent. its merits, the objection was not preserved. 10. I recognize that in the federal system the question becomes whether, despite any voir dire irregularities, the jury which heard the 1. Warner v. State, 2001 OK CR 11, 29 P.3d 569, 572. case was fair and impartial. However, our system allows peremptory 2. Rojem v. State, 2006 OK CR 7, 130 P.3d 287, 295; Hanson v. State, challenges and gives both parties discretion to excuse jurors which 2003 OK CR 12, 72 P.3d 40, 48. they find unacceptable. In that context this Court may not substitute 3. While Rojem found that a person who supervised inmates in a our opinion of the jurors for trial counsel’s when resolving voir dire city work center was included in the statutory exemption, it did not issues.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Associate District Judge Twelfth Judicial District Mayes County, Oklahoma This vacancy is created by the appointment of the Honorable Terry H. McBride to District Judge on February 2, 2009. [To be appointed an Associate District Judge, an individual must be a registered voter of the applicable judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, the appointee must have had a minimum of two years experience as a licensed practicing attorney, or as a judge of a court of record, or combination thereof, within the State of Oklahoma.] Application forms can be obtained on line at www.oscn.net or by contacting Tammy Reaves, Administrative Office of the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405) 521 2450, and should be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, March 6, 2009. If applications are mailed, they must be postmarked by midnight, March 6, 2009. Robert C. Margo, Chairman Oklahoma Judicial Nominating Commission

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 377 NOTICE OF INVITATION TO SUBMIT OFFERS TO CONTRACT

THE OKLAHOMA INDIGENT DEFENSE SYSTEM BOARD OF DIRECTORS gives notice that it will entertain sealed Offers to Contract (“Offers”) to provide non-capital trial level defense representation during Fiscal Year 2010 pursuant to 22 O.S. 2001, §1355.8. The Board invites Offers from attorneys interested in providing such legal services to indigent persons during Fiscal Year 2010 (July 1, 2009 through June 30, 2010) in the following counties: 100% of the Oklahoma Indigent Defense System caseloads in Atoka, Coal, Cherokee, Delaware, Logan, Ottawa, Payne, and Pon- totoc Counties, Oklahoma.

Offer-to-Contract packets will contain the forms and instructions for submitting Offers for the Board’s consideration. Contracts awarded will cover the defense representation in the OIDS non- capital felony, juvenile, misdemeanor, traffic, youthful offender and wildlife cases in the above counties during FY-2010 (July 1, 2009 through June 30, 2010). Offers may be submitted for partial or complete coverage of the open caseload in any one or more of the above counties. Sealed Offers will be accepted at the OIDS offices Monday through Friday, between 8:00 a.m. and 5:00 p.m. The deadline for submitting sealed Offers is 5:00 PM, Thursday, March 5, 2009.

Each Offer must be submitted separately in a sealed envelope or box containing one (1) complete original Offer and two (2) complete copies. The sealed envelope or box must be clearly marked as follows:

FY-2010 OFFER TO CONTRACT TIME RECEIVED: ______COUNTY / COUNTIES dATE RECEIVED:

The Offeror shall clearly indicate the county or counties covered by the sealed Offer; however, the Offeror shall leave the areas for noting the time and date received blank. Sealed Offers may be delivered by hand, by mail or by courier. Offers sent via facsimile or in unmarked or unsealed envelopes will be rejected. Sealed Offers may be placed in a protective cover envelope (or box) and, if mailed, addressed to OIDS, FY-2010 OFFER TO CONTRACT, Box 926, Norman, OK 73070-0926. Sealed Offers delivered by hand or courier may likewise be placed in a protective cover envelope (or box) and delivered during the above-stated hours to OIDS, at 1070 Griffin Drive, Norman, OK 73071. Please note that the Griffin Drive address is NOT a mailing address; it is a parcel delivery address only. Protective cover envelopes (or boxes) are recommended for sealed Offers that are mailed to avoid damage to the sealed Offer envelope. ALL OFFERS, INCLUDING THOSE SENT BY MAIL, MUST BE PHYSICALLY RECEIVED BY OIDS NO LATER THAN 5:00 PM, THURS- DAY, MARCH 5, 2009 TO BE CONSIDERED TIMELY SUBMITTED.

Sealed Offers will be opened at the OIDS Norman Offices on Friday, March 6, 2009, beginning at 9:00 AM, and reviewed by the Executive Director or his designee for conformity with the instructions and statutory qualifications set forth in this notice. Non-conforming Offers will be rejected on Friday, March 6, 2009, with notification forwarded to the Offeror. Each rejected Offer shall be maintained by OIDS with a copy of the rejection statement.

Copies of qualified Offers will be presented for the Board’s consideration at its meeting on Friday, March 27, 2009, at Griffin Memorial Hospital, Patient Activity Center (Building 40), 900 East Main, Norman, Oklahoma 73071.

378 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 With each Offer, the attorney must include a résumé and affirm under oath his or her compliance with the following statutory qualifications: presently a member in good standing of the Oklahoma Bar Association; the existence of, or eligibility for, professional liability insurance during the term of the contract; and affirmation of the accuracy of the information provided regarding other factors to be considered by the Board. These factors, as addressed in the provided forms, will include an agreement to maintain or obtain professional liability insurance coverage; level of prior representation experience, including experience in criminal and juvenile delin- quency proceedings; location of offices; staff size; number of independent and affiliated attorneys involved in the Offer; professional affiliations; familiarity with substantive and procedural law; willingness to pursue continuing legal education focused on criminal defense representation, including any training required by OIDS or state statute; willingness to place such restrictions on one’s law practice outside the contract as are reasonable and necessary to perform the required contract services, and other relevant information provided by attorney in the Offer.

The Board may accept or reject any or all Offers submitted, make counter-offers, and/or provide for representation in any manner permitted by the Indigent Defense Act to meet the State’s obligation to indigent criminal defendants entitled to the appointment of competent counsel.

FY-2010 Offer-to-Contract packets may be requested by facsimile, by mail, or in person, using the form below. Offer-to-Contract packets will include a copy of this Notice, required forms, a checklist, sample contract, and OIDS appointment statistics for FY-2005, FY-2006, FY-2007, FY- 2008 and FY-2009 together with a 5-year contract history for each county listed above. The request form below may be mailed to OIDS OFFER-TO-CONTRACT PACKET REQUEST, Box 926, Norman, OK 73070-0926, or hand delivered to OIDS at 1070 Griffin Drive, Norman, OK 73071 or submitted by facsimile to OIDS at (405) 801-2661.

* * * * * * * * * * * *

REQUEST FOR OIDS FY-2010 OFFER-TO-CONTRACT PACKET

Name: ______OBA #: ______

Street Address: ______phone: ______

City, State, Zip: ______Fax: ______

County / Counties of Interest:______

______

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 379 Court of Civil Appeals Opinions

2009 OK CIV APP 6 ¶4 After a hearing on August 10, 2006, the trial court ordered LawFirm’s attorney’s lien HOLDEN, P.C., d/b/a HOLDEN & CARR, be withdrawn, and ordered Attorney to file a Plaintiff/Appellee, v. ALI SEZGIN, motion for permission to withdraw the settle- Defendant/Appellant, Stephen J. Capron, ment proceeds, thus affording LawFirm an and Capron & Edwards, P.C., Defendants. opportunity to object. Also on August 10, Cli- Case No. 105,047. December 19, 2008 ent, through Attorney, file an offer to confess judgment on LawFirm’s breach of contract APPEAL FROM THE DISTRICT COURT OF claim. TULSA COUNTY, OKLAHOMA ¶5 On August 15, 2006, Attorney filed a HONORABLE P. THOMAS THORNBRUGH, Motion for Order Commanding the Court JUDGE Clerk to release the settlement proceeds. On REVERSED August 17, and, apparently without notice to LawFirm, Attorney obtained such an order and Stephen J. Capron, Capron & Edwards, P.C., withdrew the settlement proceeds from the Tulsa, Oklahoma, for Appellant, Court Clerk. Also on August 17, LawFirm filed Michael L. Carr, Reagan L. Madison, Holden, its acceptance of the offer to confess. Carr & Skeens, Tulsa, Oklahoma, for Appellee. ¶6 However, upon Client’s failure to pay, Larry Joplin, Judge: LawFirm commenced the instant action against Client, Attorney and Attorney’s LawFirm, ¶1 Defendant/Appellant Ali Sezgin (Client claiming their conversion of its share of the or Defendant) seeks review of the trial court’s settlement proceeds. LawFirm filed a Motion order disqualifying Client’s attorney on motion to Disqualify Attorney, arguing that Attorney’s of Plaintiff/Appellee Holden, P.C., d/b/a representation of Client, himself and his Law- Holden & Carr (LawFirm). In this appeal, Cli- Firm in the present action constituted a patent ent complains the trial court’s order should be conflict of interest under Rules 1.7 and 3.7, reversed because the trial court (1) failed to Oklahoma Rules of Professional Conduct conduct the requisite evidentiary hearing (ORPC), 5 O.S. 2001, Ch. 1, App. 3-A. establishing grounds for disqualification, (2) failed to set out specific findings of fact sup- ¶7 Client responded. Client first asserted porting the order of disqualification, and (3) that LawFirm filed the motion to disqualify granted disqualification without a factual basis only to harass and “drive a wedge” between and in spite of his express waiver of any con- Client and Attorney. Client also argued that his flict of interest. disqualification was not required by the ORPC. ¶2 Attorney Stephen J. Capron (Attorney) worked for LawFirm. During his employment, ¶8 On July 13, 2007, the parties appeared for Attorney assisted in the representation of Law- hearing. On consideration of the parties’ argu- Firm’s Client. Prior to resolution of Client’s ments, the trial court granted LawFirm’s case, Attorney left the LawFirm, opened his motion to disqualify, and ordered Client “to own office, and assumed the responsibility for retain separate counsel for his defense in this Client’s representation. matter.” Client now seeks review in this Court. ¶3 Attorney later negotiated the settlement of Client’s case. LawFirm asserted an attorney’s ¶9 “The right to the assistance of legal coun- lien for fees earned during its representation of sel includes the right to be represented by a Client, and commenced an action against Cli- legal practitioner of one’s own choosing,” and ent, claiming his breach of the parties’ fee “[a] litigant’s choice of counsel may be set agreement. The settlement proceeds were aside under limited circumstances, where hon- deposited with the Court Clerk. oring the litigant’s choice would threaten the integrity of the judicial process.” Towne v. Hub-

380 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 bard, 2000 OK 30, ¶¶14, 15, 3 P.3d 154, 160, 161. Plaintiffs/Appellees, v. NANCY DOYLE, “Disqualification is such a drastic measure that Defendant/Appellant. it should be invoked if, and only if, the Court is Case 104,698. September 18, 2008 satisfied that real harm is likely to result from failing to invoke it.” Hayes v. Central States APPEAL FROM THE DISTRICT COURT OF Orthopedic Specialists, Inc., 2002 OK 30, ¶10, 51 BRYAN COUNTY, OKLAHOMA P.3d 562, 565. “[T]he barrier a party must sur- mount to secure the disqualification of his HONORABLE MARK CAMPBELL, opponent’s counsel is high,” if, for no other TRIAL JUDGE reason, “to insure that such motions are not REVERSED AND REMANDED WITH used for strategic purposes.” Hayes, 2002 OK INSTRUCTIONS 30, ¶¶9, 10, 51 P.3d at 565. Jarrod Heath Stevenson, STEVENSON LAW ¶10 Upon presentation of a motion to dis- FIRM, PLLC, Oklahoma City, Oklahoma, for qualify for an alleged conflict of interest, the Plaintiff/Appellant, Defendant/Appellant, trial court must hold an evidentiary hearing, Nancy Doyle and, if the trial court grants the motion to disqualify, the order of disqualification must Payton L. Phelps, Durant, Oklahoma, for include specific findings of fact supporting the Defendants/Appellees, Jeremy and Dana decision. Piette v. Bradley & Leseberg, 1996 OK Smith 1 124, ¶2, 930 P.2d 183, 184. On appeal in such Don Michael Haggerty, D. Michael Haggerty, cases, “the function of an appellate court is to HAGGERTY & HAGGERTY, Durant, Oklaho- determine whether the [trial court’s] findings ma, for Plaintiffs/Appellees, James A. and are supported by substantial competent evi- Dorothy L. Smith dence and whether the findings are sufficient to support the trial court’s conclusions of law.” KEITH RAPP, CHIEF JUDGE: Prospective Investment and Trading Co., Ltd. v. ¶1 Nancy Doyle (Doyle) appeals from a GBK Corp., 2002 OK CIV APP 113, ¶13, 60 P.3d judgment against her in a consolidated action 520, 524. where, in one case, Doyle was plaintiff and ¶11 In the present case, the trial court con- Jeremy Smith and Dana Smith (D. Smith) were ducted a hearing on the LawFirm’s motion to defendants, and in the other case, James A. disqualify, but conducted no evidentiary hear- Smith (Smith) and Dorothy Smith, were plain- ing. Further, in its order granting the motion to tiffs and Doyle was defendant.1 disqualify, the trial court did not enter specific findings of fact supporting its decision to dis- BACKGROUND qualify Attorney from Client’s representation. ¶2 This case began as a boundary dispute In the absence of the requisite evidentiary hear- between Doyle and Smith. They are neighbors ing and findings of fact, we are unable to deter- since each purchased their respective property mine whether the decision to disqualify is in the 1970s. Their property was separated by “supported by substantial competent evidence an old, meandering fence and trees on Smith’s and whether the findings are sufficient to sup- west side and Doyle’s east side.2 The fence was port the trial court’s conclusions of law.” Pro- in place when they each purchased the prop- spective Investment and Trading Co., Ltd., 2002 erty. The dispute that arose was whether the OK CIV APP 113, ¶13, 60 P.3d at 524. fence and trees constituted the boundary line. ¶12 The order of the trial court is conse- ¶3 The dispute escalated when Smith began quently REVERSED. to remove the fence and trees. Doyle filed suit HANSEN, J., and ADAMS, P.J., concur. against Smith and his wife on August 23, 2002, seeking injunctive relief to restore the fence 1. This case also holds that such an order may be appealed imme- and a determination that she owned the prop- diately. erty on her side of the fence line by virtue of 2009 OK CIV APP 5 adverse possession.3 The case was tried before the court on August 24, 2004.4 NANCY DOYLE, Plaintiff/Appellant, v. JEREMY SMITH and DANA SMITH, ¶4 The court heard testimony and received Defendants/Appellees, and JAMES A. documentary evidence detailing the history of SMITH and DOROTHY L. SMITH, the ownerships and the parties’ relationships.

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 381 Smith appeared pro se. Both sides presented Approved by the District Judge of evidence as to their exclusive uses of their Bryan County, Nineteenth Judicial District, property up to the fence. James Smith testified this 18th day of October, 2004. that he thought the matter was settled by hav- IT IS SO ORDERED! ing a survey and establishing a new fence on S/ Ferrell M. Hatch the survey line. He also testified that he owned Ferrell M. Hatch the property on his side of the fence and Doyle District Judge owned the property on the other side and that the general community knew that the fence ¶8 No other form of order or journal entry was the boundary. He also testified that he had was prepared and filed according to the record never sold any of his twenty acres since 1979 before this Court. However, in a subsequent and that he owned twenty acres.5 proceeding, on September 23, 2005, Smith was found to be in contempt of the October 18th ¶5 Smith’s daughter, Dana Smith, testified as Order because he did not replace the fence as a witness on his behalf. She testified that the ordered, but put it on the survey line.10 During general community knew that Smith owned on the contempt proceeding, the trial judge repeat- the east side of the fence and that Doyle owned edly referred to what he had ordered done and on the west side and that the fence was the 6 that he determined the fence line boundary boundary. She further testified that she and was established by adverse possession. Smith her father recognized the fence as the bound- 7 was adjudicated to be in contempt and directed ary and conducted themselves accordingly. to “build a fence on the property line that was She was not asked, at this trial, and she did not previously ordered” or be fined and jailed.11 It volunteer, whether she owned any of the twen- does not appear from the record that any party ty acres by virtue of a conveyance from her appealed either the October 18th Order or the father. subsequent contempt finding. ¶6 The court, after both sides completed their ¶9 On March 25, 2006, Doyle filed, in Doyle presentations, announced that the case was I, a motion for a temporary injunction against taken under advisement. The court informed Smith. A new trial judge was assigned because the parties, “I will let you know my decision by the original judge had retired. Doyle also 8 Minute Order.” named D. Smith and her husband as defen- ¶7 On October 18, 2004, the trial court signed dants, stating that they claimed some interest and filed a typed Order (October 18th Order).9 in the land in issue by reason of a deed dated This document contains the case caption and and filed August 14, 2002. Doyle’s Motion set case number and is styled “Order.” In the out the case history including the contempt lower left corner of the document a handwrit- finding. She alleged that Smith had not com- ten notation reads: plied and that she caused a fence to be built on the fence line established by the October 18th P to JE Order. She claimed that Smith began to tear the copy to counsel & def fence down and intended to build another at a FMH location on her property. The body of the document reads: ¶10 On April 24, 2006, D. Smith and her hus- Court finds that Plaintiff was in open, band specially appeared seeking dismissal of notorious, hostile and adverse possession the injunction motion. They maintained that of all property west of the original fence they were not parties to Doyle I and that add- line. ing them in post-judgment proceedings is not The original fence line is found as fol- permitted. The court dismissed them and lows: granted Doyle time to refile a new action. Smith was ultimately sanctioned for failure to The northeast corner of plaintiff’s comply with the contempt finding entered sub- property begins where the tree in Plaintiff’s sequent to the October 18th Order.12 Exhibit 27 formerly stood but was dozed down, thence south at an angle to the old ¶11 Doyle then sued D. Smith and her hus- southeast corner represented in Plaintiff’s band in a separate action brought on June 21, Exhibit Numbers 14 and 15. 2006 (Doyle II). Doyle’s petition alleges the fact Defendant to restore fence and pay of the conveyance from Smith to his daughter Plaintiff’s costs. D. Smith and her husband. Doyle claimed that

382 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 she owned that portion of the land conveyed ¶16 Doyle and her daughter testified. Doyle’s by Smith, which was west of the common fence daughter had participated in erecting the new line, by adverse possession and by virtue of the fence. Their evidence was that the new fence decision in Doyle I. followed the historic fence line and conformed to the Doyle I order. When asked whether she ¶12 Now divorced, Dana Smith, answered paid taxes on the land, she responded that she and admitted the existence of a historic fence. owned eighty acres “more or less” and paid the She denied Doyle’s claim of adverse possession. She denied that she was bound in any taxes on the land. manner by Doyle I. In a counterclaim, D. Smith ¶17 After the trial, and before a decision, the alleged ownership of a parcel of land out of the court directed the parties to brief the question ten-acre tract adjacent to Doyle by virtue of a of whether Doyle I disposed of Doyle II and conveyance from Smith dated August 14, 2002. Doyle III by res judicata or estoppel.14 After the The parcel consisted of approximately one acre parties briefed the issue, the court ruled that and a road easement. Doyle I did not dispose of Doyle II and Doyle ¶13 D. Smith alleged that the fence, in place III for the reason that the prior litigation did for more than fifteen years, was the boundary not result in a final judgment. by acquiescence of the owners of the lands on ¶18 The court then decided the issues in each side of the fence. She alleged that the favor of Smith and Dana Smith, with a finding fence was situated, in part, to the west of the that Doyle did not adversely possess the land line established by the legal description, and in issue. The court directed that the fence be thus partially on Doyle’s side. She claimed title placed on the survey line at Doyle’s expense. also by adverse possession as to the land situ- Doyle appeals. ated east of the fence. Last, she alleged that Doyle had constructed a new fence which STANDARD OF REVIEW encroached on the land she claimed as a result ¶19 The availability of the doctrine of issue of the historic fence boundary. Her request for preclusion presents a question of law to be relief included quieting title and removal of the reviewed de novo. Whether it applies under the newly constructed fence. facts presented here calls for an exercise of the ¶14 Then, on July 26, 2006, Smith sued Doyle trial court’s discretion, which this Court reviews (Doyle III) claiming that Doyle unlawfully for abuse of that discretion. Cities Serv. Co. v. erected a fence on the Smith property.13 The Gulf Oil Corp., 1999 OK 14, ¶ 12, 980 P.2d 116, petition alleges that Smith owns the entire 124; Wilson v. City of Tulsa, 2004 OK CIV APP twenty-acre tract, which includes the parcel in 44, ¶ 8, 91 P.3d 673, 677. the ten acres Dana Smith supposedly owns as ANALYSIS AND REVIEW of August 14, 2002. In response, Doyle denied any illegal action and alleged ownership of the ¶20 Smith and D. Smith joined their argu- land she fenced by virtue of the trial court ment before the trial court and here. First, they order in Doyle I. Doyle II and Doyle III were argued that there must be a final order before consolidated, over Doyle’s objection, and tried an action may have preclusive effect and that to the court. the absence of a final, appealable order is fatal to the argument that Doyle I must be afforded ¶15 The dispute in Doyle II and Doyle III preclusive effect.15 They characterize the Octo- concerned the new fence erected by Doyle. ber 18th Order as a nonfinal minute order, Smith testified, using recent photographs, that which would not authorize an appeal. Second, the old fence line actually lay west of the sur- they assert that Doyle I could not have any vey boundary so that using the Doyle I bound- preclusive effect as to D. Smith because she, ary would result in a fence that took in a por- D. Smith, was not a party. tion of Doyle’s property. He further testified that a new fence, erected by Doyle or members ¶21 Therefore, the initial question here is to of her family, did not follow the old fence line decide whether the trial court’s October 18th and encroached up to fifty-five feet easterly Order qualifies as a judgment and then, if a onto his property and that of his daughter. He judgment, whether it is final for purposes of stated that his desire was to have the fence giving it preclusive effect. A ruling that the placed on the survey line. October 18th Order is a final judgment would

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 383 then lead to an examination of its preclusive Smith had a boundary dispute over whether effect as to Smith and D. Smith. their boundary was an old fence line or the survey line. Testimony and exhibits were pre- A. Does the October 18th Order Qualify sented in a full bench trial. The trial court’s as a Judgment? October 18th Order completely resolves the ¶22 Although the trial court did not elabo- boundary dispute. This determination is aided rate on its reasoning, it appears that the prem- by the fact that the original trial judge, during ise for the trial court ruling that the October the subsequent contempt hearing in this same 18th Order of Doyle I was not a final judgment matter, stated that he had done so and then was that no appealable order had been entered. enforced his judgment by contempt.22 In order to prosecute an appeal, the appellate ¶28 Examination of the record shows that the record must contain a written memorialization October 18th Order contains the caption, par- of the action taken by the trial court which con- ties, case number, and title, the relief provided stitutes the appealable event. Depuy v. Hoeme, and obligations imposed, and the signature 1989 OK 42, ¶ 8, 775 P.2d 1339, 1342-43. Depuy and title of the court. The document has the presented a similar, but distinguishable, fact court clerk’s file stamp and deputy’s signature. situation and many of the principles applied The October 18th Order thus meets the criteria there are instructive.16 for and is a judgment. This Court further rules ¶23 Depuy involved an oral, postjudgment that the trial judge’s handwritten minute order and the issue was whether that order was (Record, p. 122) and notation on the October final. The definition of a final order is set out in 18th Order are surplusage and do not trans- 12 O.S.2001, § 953.17 However, because the Depuy form what otherwise qualifies as a judgment by definition and content into an abstract or postjudgment order was not memorialized, the 23 Supreme Court directed that a hearing be held minute of the court’s action. to determine what the postjudgment order pro- ¶29 This Court, based on the above, answers vided and then to determine whether it met the the captioned question in the affirmative. The definition of Section 953, before its preclusive October 18th Order is a Judgment. However, effect could be ascertained. the question of finality and appealability is answered in the following section. ¶24 In Doyle’s case, there are two issues for resolution. The first issue is to determine B. Finality of October 18th Order as to Smith whether there has been a judgment. A judg- 18 ¶30 The foregoing does not resolve whether ment is defined in 12 O.S.2001, § 681. A judg- the Order’s appeal time had expired. The Octo- ment is effective, valid and enforceable not- ber 18th Order was prepared by the trial judge, withstanding the fact that it has not been but it does not contain a mailing certificate reduced to a written journal entry. Depuy, 1989 as part of the document. 12 O.S. Supp. 2007, OK 42 at ¶ 9, 775 P.2d at 1343. § 696.2(B). When the mailing certificate is ¶25 The second issue, if there is a judgment absent, Section 990A(A) provides that “the in Doyle I, is to determine whether that judg- petition-in-error may be filed within thirty (30) ment has been memorialized in statutory form days after the earliest date on which the court so as to make the judgment final and appeal- records show that a copy of the judgment, able.19 The deadline for filing an appeal is trig- decree, or appealable order was mailed to the gered by the filing of the written judgment, appellant.” If the thirty days-after-mailing is with a mailing exception not applicable here. applicable, then the filing of the October 18th 12 O.S. Supp. 2007, § 990A(A). Section 990A(A) Order without a mailing certificate was not an also requires that the written judgment must appealable event initiating the running of the comply with 12 O.S. Supp. 2007, § 696.3.20 time to file an appeal. 12 O.S. Supp. 2007, § 696.2(D); McMillian v. Holcomb, 1995 OK 117, ¶ ¶26 Once these two issues are determined, 6, 907 P.2d 1034, 1036. then the next step is to determine whether Doyle I has preclusive effect if a final judgment ¶31 The state of the record before this Court exists.21 shows that a judgment was entered and memorialized in statutory form. Before a judgment ¶27 This Court finds that the October 18th will have any preclusive effect it must be final. Order constitutes an enforceable judgment, The appellate record shows that the time with- both as to definition and content. Doyle and in which an appeal has to be filed was not initi-

384 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ated because of the lack of mailing and the es the claim; (b) “bar” where a defendant’s judgment therefore does not meet all of the judgment extinguishes the claim; and (c) “issue statutory requirements prerequisite to an appeal preclusion” where the effect of the determina- from the filed judgment. Hence, it must be tion of an issue in another action between the determined that the Judgment in Doyle I is not parties on the same claim (direct estoppel) or a a “final” order for appeal purposes. Therefore, different claim (collateral estoppel) precludes the question then becomes whether “final further action on the claim at hand. All three order” for purposes of appeal is identical to are now broadly referred to as res judicata. “final order” for purposes of giving preclusive Restatement (Second) of Judgments, IN. NT effect. and §§ 17, 27 (1982).24 1. Finality and Appeal ¶35 The Restatement distinguishes that which constitutes “finality” in merger and bar ¶32 The reason for a final order or judgment from “finality” in issue preclusion. Restate- to be filed and recorded for purposes of appeal ment of Judgments (Second), § 13 (1982).25 In is to show that the trial court litigation is at an Comment b of Section 13, the Restatement end. In general, only at such time is there a equates finality of a judgment for purposes of cause subject to appellate review. Moreover, appeal with finality for purpose of bar or the absence of finality would not promote judi- merger of claims. Thus, on the record before cial economy and would entail the Appellate this Court, the judgment of Doyle I would not Court’s having to decide issues before the trier operate as a bar or merger because the appeal of fact has reached a final determination, espe- time has not been shown to expire. cially when the facts dictate the legal conclusion. Jerry Scott Drilling Co., Inc. v. Scott, 1989 ¶36 However, the Restatement offers a less OK 131, ¶¶ 7, 10, 781 P.2d 826, 828-29. In ruling strict rule for the “issue preclusion” category. on the appeal of nonfinal orders and judg- In Section 13, comment g, the Restatement ments, the Oklahoma Supreme Court, in Okla- maintains that, when dealing with issues, as homa City Land & Dev. Co. v. Patterson, 1918 OK opposed to claims, rigidity can work hardship, 610, ¶ 5, 175 P. 934, 935, stated: duplication of effort, unnecessary expense, and result in inefficient use of court time. If such orders as were entered in this case were appealable to this court for review ¶37 The Oklahoma Supreme Court follows before final judgment, there would never the Restatement position. See Oklahoma Dept. of be any end of litigation. It would furnish Public Safety v. McCrady, 2007 OK 39, 176 P.3d a method and means by which litigation 1194.26 The Court ruled: could be carried on ad infinitum. Public In accordance with the doctrine of issue policy requires that there should be an preclusion (previously known as collateral end to litigation at some time, and for that estoppel), once a court has decided an reason our statute has wisely provided a issue of fact or law necessary to its judg- salutary rule which does not permit an ment, the same parties or their privies may appeal to this court from an interlocutory not relitigate that issue in a suit brought order or ruling made by the trial court upon a different claim. The principle of during the trial of a cause unless specially issue preclusion operates to bar from reliti- authorized. gation both correct and erroneous resolu- ¶33 Therefore, this Court holds that the tions of jurisdictional and nonjurisdictional record before this Court shows that the Octo- challenges. An issue is actually litigated ber 18th Order in Doyle I is not a final order for and necessarily determined if it is properly purposes of appeal. The reason is that the raised in the pleadings, or otherwise sub- appeal time has not began to run due to the mitted for determination, and judgment failure or lack of service by mailing or personal would not have been rendered but for the service to the parties. determination of that issue. The doctrine may not be invoked if the party against 2. Finality And Preclusive Effect whom the earlier decision is interposed did ¶34 There are three general types of preclu- not have a “full and fair opportunity” to sive effect between the parties to a judgment litigate the critical issue in the previous (such as Doyle and Smith). These are: (a) case. For invocation of issue preclusion “merger” where a judgment for plaintiff merg- there need not be a prior adjudication on

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 385 the merits (as is often the case with res judi- ing in the appellate record showing any reason cata) but only a final determination of a to litigate these issues again after Doyle I. The material issue common to both cases. judgment in Doyle I is final for purposes of (Emphasis original.) claim preclusion. Oklahoma Dept. of Public Safety, 2007 OK 39 at ¶41 In Doyle III, Smith sought to relitigate ¶ 7, 176 P.3d at 1199 (citing Restatement (Sec- the boundary and fence line location. These ond) of Judgments § 27, cmt. b (1982)). issues are precluded by the judgment in Doyle I. This Court determined above that there had ¶38 Other Courts agree and discuss the ele- been a judgment on the merits in writing in ment of finality. Lummus Co. v. Commonwealth statutory form in Doyle I. It is not necessary Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961) that such a statutorily complete and “final” cert. den., 368 U.S. 986 (whether a judgment, judgment exist for enforcement or preclusion. not “final,” within meaning of a statute per- Oklahoma Dept. of Public Safety, 2007 OK 39 at taining to appeals from final decisions of dis- ¶ 7, 176 P.3d at 1199. trict courts, ought nevertheless be considered “final,” in the sense of precluding further liti- ¶42 Therefore, this Court holds that the trial gation of the same issue, is dependent upon court erred by its ruling denying preclusive such factors as nature of the decision, adequacy effect to Doyle I as to Smith’s claim in Doyle III. of the hearing, and opportunity for review.) The boundary is the old fence line, as provided “’Finality’. . . may mean little more than that in the Doyle I judgment, and not the survey the litigation of a particular issue has reached line. The only issues which might still exist are such a stage that a court sees no really good whether Doyle erected the fence in accordance reason for permitting it to be litigated again.” with the Doyle I judgment and whether Doyle’s Id.; Asahi Glass Co. Ltd. v. Toledo Engineering Co., costs have been paid or discharged in Bank- Inc., 505 F. Supp.2d 423 n.2 (N.D. Ohio 2007).27 ruptcy. However, these are issues germane to Doyle I post-judgment enforcement proceed- ¶39 Wisconsin applies Section 13 of the ings. Therefore, the judgment of the trial court Restatement. In re Jaynes, 377 B.R. 880, 884 in Doyle III is reversed and the cause is remand- (Bankr. W.D. Wis. 2007) (citing Estate of Rille v. ed with instructions to dismiss the Doyle III Physicians Ins. Co., 2007 WI 36, 728 N.W.2d 693 action. (2007)). Whether collateral estoppel is appropriate in any case to preclude relitigation of an C. Preclusive Effect as to D. Smith issue is dependent upon a determination of ¶43 D. Smith was not a named party to Doyle fundamental fairness by the trial judge. One I. She testified therein as a witness without factor is the prior opportunity to adequately mentioning the deed to her from her father, litigate the issue. Michelle T. by Sumpter v. Cro- Smith, conveying to her an acre and an ease- zier, 495 N.W.2d 327, 335 (Wis. 1993); see People ment that are affected by the boundary dispute. v. Cooper, 57 Cal. Rptr.3d 389, 406-7 (Cal. Ct. She recognized the fence line as the boundary App. 2007). and conducted herself accordingly, as did her ¶40 In Doyle I, the trial court determined that father. In Doyle I, Smith testified that he had the Doyle-Smith boundary was fixed by the not conveyed any of his twenty acres. The evi- old fence line and not the survey line. The trial dence, arguments, legal principles and judg- court further determined the location of that ment governing Doyle and Smith in Doyle I fence line boundary. There was a full trial on apply equally to Doyle and Smith in Doyle II. the merits, thus affording Doyle and Smith the ¶44 The fact is that the conveyance to D. opportunity to litigate these issues. The bound- Smith preceded the Doyle I trial — but not the ary determination and location of the fence line filing of the case. However, the record does not were a necessary and an integral part of the show that a lis pendens notice was filed of Doyle I judgment. There was nothing tentative record. 12 O.S.2001, § 2004.2(A)(1). Moreover, about the judgment in Doyle I.28 Based upon the record does support a conclusion that the the contempt hearing, it is clear that Smith daughter had actual knowledge of the Doyle I knew the terms of the judgment and had an lawsuit from its inception. She had a confronta- opportunity to seek review and apparently tion with Doyle, prior to the filing, over the old failed to do so.29 Whether the Doyle I judgment fence removal.30 She participated in removing was final for appeal purposes is not a sufficient the old fence.31 She was present when Smith reason to relitigate these issues. There is noth- was served in Doyle I.32

386 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ¶45 The comments to the Restatement (Sec- established by the record and this Court’s find- ond) Judgments, § 44 (1982), offer a position ing that D. Smith acquiesced in having Smith when there is a transfer of property while the represent her property interest bring into con- action is pending to a transferee who has sideration the third definition. knowledge of the action, but does not join the ¶50 The concept of “virtual” or “adequate” action. The Restatement, comment a, takes the representation was reviewed in Becherer v. Mer- position that the transferee has acquiesced in rill, Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d having the transferor continue to be the appar- 1054 (6th Cir. 1995) cert. den., 516 U.S. 912.33 In ent owner and effectively treats the transferor Becherer the court stated: as his representative in the action. In such cases, the transferee is bound by the judgment The doctrine of adequate representation and, here, D. Smith under the Restatement, is is also known as virtual representation.34 bound in the same manner as Smith. This concept has been developed primarily by the Fifth Circuit, Charles A. Wright, ¶46 In Doyle I, D. Smith’s testimony was con- Arthur R. Miller & Edward H. Cooper, Fed- sistent with Smith, her father, that Smith was eral Practice and Procedure § 4457 (1981). In the owner of the entire twenty acres and, for the words of the Fifth Circuit, the doctrine purposes of the trial, she treated him as the of virtual representation apparent owner. Based on the record, this Court finds that D. Smith effectively treated Smith as requires more than a showing of paral- her representative to protect her property inter- lel interest or, even, a use of the same est in Doyle I and was in privity with her father, attorney in both suits. . . . The question Smith. The legal consequences of this finding of virtual representation is one of fact have a role in the concept of privity. and is to be kept within “strict con- fines.”. . . . Virtual representation ¶47 To be in privity, a party must “actually demands the existence of an express or have the same interest, character, or capacity as implied legal relationship in which par- the party against whom the prior judgment was ties to the first suit are accountable to rendered.” Hildebrand v. Gray, 1993 OK CIV APP non-parties who file a subsequent suit 182, ¶ 16, 866 P.2d 447, 450-51. There are no hard raising identical issues. and fast rules; the existence of privity depends upon the circumstances and requires “’a person Becherer, 43 F.3d at 1070. so identified in interest with another that he represents the same legal right.’” Wilson v. City of ¶51 The elements of virtual representation Waddell & Reed Financial, Inc. v. Tulsa, 2004 OK CIV APP 44, ¶ 11, 91 P.3d 673, 677 were set out in Torchmark Corp. (quoting Hildebrand). , 180 F. Supp.2d 1235, 1245 (D. C. Kan. 2001). ¶48 Court decisions speak of privity between parties, such as D. Smith, and Smith as a pre- To support a finding of virtual representa- requisite to giving Doyle I preclusive effect in tion, the Court ordinarily must find that Doyle II against D. Smith. Three classes of priv- the parties in the earlier action were in ity situations are given. some sense proper agents for the latter parties so as to support preclusion of the latter A privy is defined as: 1) a non-party who claim. . . . Such an agency relationship may has succeeded to a party’s interest in prop- arise, for example, where the party in the erty (a successor in interest); 2) a non-party first suit had some obligation to safeguard who controlled the original suit; or 3) a the interests of the party to the second suit. non-party whose interests were adequately . . . (“A court will apply virtual representa- represented by a party in the original suit tion only when it finds the existence of (through “virtual” or “adequate” represen- some special relationship between the par- tation). ties justifying preclusion.”), (“Virtual representation demands the existence of an Asahi Glass Co., Ltd. v. Toledo Eng. Co., Inc., 505 express or implied legal relationship in F. Supp.2d 423, 434 (N.D. Ohio, 2007). which parties to the first suit are account- ¶49 The first does not apply here. The second able to non-parties who file a subsequent is not here applicable as there is no evidence suit raising identical issues.” . . . (“the par- supporting a conclusion that D. Smith con- ties’ independence — the inescapable fact trolled the Doyle I lawsuit. However, the facts that the [prior] plaintiffs were not legally

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 387 responsible for, or in any other way account- Smith testified as to Smith’s ownership of all of able to, the [nonparty] plaintiffs — weighs the land on his side of the fence with full heavily against a finding of virtual repre- knowledge of her ownership in part of the sentation”) . . . (interests of nonparty must property. be adequately represented by another vested with authority of representation) . . . ¶55 Therefore, this Court finds that there is (“The doctrine of virtual representation privity between Smith and D. Smith and that does not authorize application of a bar to the doctrine of virtual representation applies relitigation of a claim by a nonparty to the under the facts. The Doyle I judgment is final original judgment where the interests of as to D. Smith just as for Smith. The scope of the parties to the different actions are sepa- the preclusive effect of Doyle I is also the same rate or where the parties to the first suit are for D. Smith as it is for Smith. Therefore, the not accountable) (citations omitted) judgment in favor of D. Smith in Doyle II is (emphasis added). reversed and the case is remanded with instructions to enter judgment for Doyle as to the Id. boundary and fence line in accordance with ¶52 Moreover, D. Smith’s testimony and Doyle I. position in Doyle I relative to her silence on her CONCLUSION ownership also give rise to another form of estoppel in Doyle II. ¶56 This Court holds that the doctrine of issue preclusion is here applicable to Doyle in There is a kind of evidential estoppel which, though it may not amount to com- Doyle III so as to bar Smith from relitigation of plete estoppel in pais, is raised when per- the boundary and fence line locations in Doyle sons who have spoken or acted one way III. The predicate action, Doyle I, has a memo- under one set of circumstances, and with rialized judgment. Although the record does one objective in mind, undertake under not affirmatively show that the appeal time has other circumstances and when their objec- expired in Doyle I, the element of finality is tive has changed, to testimonially give satisfied, under the record before this Court, different color to what they formerly said because the Doyle I judgment is “sufficiently and did. firm” so as to be accorded preclusive effect for purposes of issue preclusion and can therefore Holly Hill Citrus Growers’ Ass’n v. Holly Hill be classified as to this litigation as final. Fruit Products, Inc., 75 F.2d 13, 17 (5th Cir.1935); In re Gilmore, 221 B.R. 864, 879 (Bankr. N.D. ¶57 Next, this Court holds that the doctrine Ala.1998); see State Farm Fire & Cas. Co, v. Evans, of issue preclusion is available to Doyle so as to 956 So.2d 390, 393 (Ala. 2006). (Emphasis bar D. Smith from relitigation of the boundary added).35 and fence line location in Doyle II. Under the facts and equities of the case, as shown by the ¶53 Further, application of the companion record, there is privity between D. Smith and equitable doctrine of “clean hands” is likewise suggested by D. Smith’s testimony in Doyle I. Smith. The predicate judgment in Doyle I satis- “Equity will not lend its aid to one seeking its fies the finality requirement as to D. Smith for active interposition, who has been guilty of the same reason it is satisfied as to Smith. unlawful or inequitable conduct in the matter ¶58 Last, this Court holds that the trial with relation to which he seeks relief.” Camp v. court’s failure to apply issue preclusion in Camp, 1945 OK 234, 163 P.2d 970 (Syl.). these cases constitutes an abuse of discretion ¶54 Both doctrines, evidential estoppel and under the facts and law of this case. Therefore, clean hands, support a finding that D. Smith the judgment of the trial court in the matter of should also be bound by the judgment in Doyle Nancy Doyle versus Dana Smith is reversed I by application of the virtual representation and the cause is remanded with instructions to rule. Her interest in having the fence located enter judgment for Nancy Doyle against Dana other than on the old fence line coincided with Smith establishing the boundary and fence line her father’s, Smith’s, interest. He represented in accordance with the judgment in Doyle I. that he owned all of his twenty acres and had The judgment in the matter of James A. Smith not transferred any portion of the acreage. D. and Dorothy L. Smith versus Nancy Doyle is

388 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 reversed and the cause is remanded with 20. The evidence of the existence of a judgment and its content is the written judgment bearing the judge’s signature. Depuy, 1989 OK 42 instructions to dismiss the action. at ¶ 9, 775 P.2d at 1343. Section 696.3 provides for the contents of final judgments. ¶59 REVERSED AND REMANDED WITH A. Judgments, decrees and appealable orders that are filed INSTRUCTIONS. with the clerk of the court shall contain: 1. A caption setting forth the name of the court, the names and designation of the parties, the file number of the case and the BARNES, J., concurs, and GOODMAN, Act- title of the instrument; ing P.J. (sitting by designation), concurs in 2. A statement of the disposition of the action, proceeding result. or motion, including a statement of the relief awarded to a party or parties and the liabilities and obligations imposed on the other party or parties, including the amount of any pre- 1. Dana Smith is the daughter of James and Dorothy Smith. During judgment interest; the course of these proceedings Dana and Jeremy Smith divorced and 3. The signature and title of the court; and Jeremy Smith disclaimed any interest in the property that is involved 4. Any other matter approved by the court. in this matter. B. Judgments, decrees and appealable orders that are filed 2. Doyle owns a “long” 80 acres running east to west. Smith owned with the clerk of the court may contain a statement of costs, a “long” 20 acres running north to south. As a result, only the northern attorney fees and interest other than prejudgment interest, or any one-half of Smith’s “long” side abutted Doyle’s property. of them, if they have been determined prior to the time the judg- 3. This action will be referred to as “Doyle I.” ment, decree or appealable order is signed by the court in accor- 4. The trial transcript and court record are part of the record in this dance with this section. appeal. C. The clerk shall endorse on the judgment, decree or appeal- 5. Doyle I, Tr., pp. 147-48. able order the date it was filed and the name and title of the 6. Doyle I at pp. 133-34. clerk. 7. Doyle I at pp. 135-36. D. A file-stamped copy of the judgment, decree, or appeal- 8. Doyle I at p. 166. able order shall be served upon all parties, including those par- 9. Record, p. 123. ties who are in default for failure to appear in the action, as 10. Record, pp. 129-30. provided in Section 696.2 of this title. 11. Record, pp. 129-30. 21. Doyle has not presented an argument, based on Depuy, that the 12. Record, p. 141. postjudgment contempt decree has any preclusive effect. 13. The trial in Doyle II and Doyle III brought out that there were 22. In the contempt hearing, testimony was given characterizing three fences built, in addition to the historic fence. The first fence, the trial court’s decision as a final judgment that was not appealed. erected by Smith, precipitated Doyle I and was removed. The second, Smith did not object or dispute this characterization. Contempt Tr., also erected by Smith, was built to comply with Doyle I, but did not do p. 7. The trial judge referred to his Order in addressing Smith. Con- so according to Doyle and was removed and Smith was directed to tempt Tr., pp. 15, 26, 30-31, 37, 39. Smith made no objection and his give Doyle money to erect the fence. The third fence, erected by Doyle, argument for nonpayment was that he was discharged in bankruptcy. is the subject of Doyle II and Doyle III. Doyle II Transcript, p. 62, 23. A minute contains only a “very brief description of the order or 14. The trial court took judicial notice of all of the records of Doyle judgment rendered.” 12 O.S.2001, § 23; Mansell v. City of Lawton, 1994 I for the purpose of ruling on the preclusive effect of Doyle I. Court OK 75, ¶ 1, 877 P.2d 1120, 1121. Preparation of minutes is usually a Memorandum dated “3/13/07,” Record, p. 24. All of these records, function of the clerk, but the court may also prepare minutes, and the including the trial transcript, are part of the record on appeal. How- minute “must not be encumbered with a detailed recital of the terms.” ever, the trial transcript was not prepared and filed at that time and 12 O.S.2001, § 23; compare Corbit v. Williams, 1995 OK 53, 897 P.2d 1129. could not have been reviewed. The reporter’s certificate bears the date In Corbit, the trial court’s order was written on a printed form titled October 30, 2007, and the district court clerk’s file stamp is dated “Court Minute,” but otherwise contained the content from Section November 1, 2007. 696.3. The Supreme Court ruled that this document in Corbit did not 15. Depuy v. Hoeme, 1989 OK 42, ¶ 10, 775 P.2d 1339, 1343-44 and qualify as an order commencing the statutory appeal time because of the n.23 (“While the ‘finality’ requirement has troubled courts and oft “Court Minute” title and the statute, Section 696.2(C) now Section times its application may vary with the circumstances, all courts agree 696.2(D), specifically exempts a minute entry as a qualifying document that, after the expiration of appeal time when no appeal has been for purposes of appeal. taken, a judgment acquires the degree of finality requisite for the appli- 24. Section 17 reads: A valid and personal judgment is conclusive between the cation of res judicata doctrine.”) parties, except on appeal or direct review, to the following 16. Depuy is sometime referred to as Depuy II because of a prior extent: appeal involving the underlying merits of the parties’ dispute decided (1) If the judgment is in favor of the plaintiff, the claim is extin- in Depuy v. Hoeme, 1980 OK 26, 611 P.2d 228. Depuy II differs from guished and merged in the judgment and a new claim may arise Doyle’s case in these respects. Depuy II involved an oral, postjudgment on the judgment (see § 18); order enforcing the underlying judgment. The order was never memori- (2) If the judgment is in favor of the defendant, the claim is extin- alized and the trial judge died. The Depuy II judgment had been memo- guished and the judgment bars a subsequent action on that claim rialized and was on appeal when the oral, postjudgment order was (see § 19); given. In Doyle’s case the concern is whether there is a judgment, where (3) A judgment in favor of either the plaintiff or the defendant is con- the record contains a written, signed document (the October 18th clusive, in a subsequent action between them on the same or a different Order), together with a trial transcript and court record. In addition, claim, with respect to any issue actually litigated and determined if its the subsequent enforcement order (contempt) is memorialized and a determination was essential to that judgment. (Emphasis added.) transcript of that proceeding is also available. Section 27 is essentially the same language as Section 17(3). 17. Section 953 provides: At one time the nomenclature was “claim preclusion” and “issue An order affecting a substantial right in an action, when such preclusion.” The former had been called “res judicata” and the latter order, in effect, determines the action and prevents a judgment, “collateral estoppel.” Under “claim preclusion,” or res judicata, a final and an order affecting a substantial right, made in a special pro- judgment on the merits of an action precludes the parties or their ceeding or upon a summary application in an action after judg- privies from relitigating issues that were or could have been raised in ment, is a final order, which may be vacated, modified or that action. Under collateral estoppel, once a court has decided an reversed, as provided in this article. issue of fact or law necessary to its judgment, that decision may pre- 18. Section 681 provides: clude relitigation of the issue in a suit on a different cause of action A judgment is the final determination of the rights of the involving a party to the first case. Allen v. McCurry, 449 U.S. 90, 94, parties in an action. 101 S.Ct. 411, 414. 19. If there is a judgment which has not been memorialized, then 25. Section 13 reads: Depuy II instructs that an adversary hearing must be conducted to The rules of res judicata are applicable only when a final judg- reduce the judgment to writing and provide its content. ment is rendered. However, for purposes of issue preclusion, (as dis-

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 389 tinguished from merger and bar), “final judgment” includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect. (Emphasis City Attorney added.) 26. Although the Opinion cited Section 27 and comment b, and Enid, Oklahoma not Sections 13 or 17, all three Sections provide for the same principle. See n.24 and n.25. The City of Enid, Oklahoma (Pop. 48,000) invites 27. Another Federal District Court reached this same conclusion applications for the position of City Attorney. The in a case not reported in the Federal Supplement. O’Diah v. New York City Attorney is charged with diligent representation City, 2002 WL 1941179 (S.D. N.Y. 2002). 28. The written judgment closes, “IT IS SO ORDERED!” in bold of the legal interest of the City of Enid, in all matters, type and with the emphasis punctuation mark. Moreover, the trial including municipal, state, and federal court; in court held Smith to be in contempt for v iolation of the October 18th union negotiations; and in adoption and implemen- Order. 29. He also claimed to be discharged from the monetary portion tation of policies and procedures and city ordinances. of the judgment by his bankruptcy. Knowledge of the existence and Responsibilities also include the supervision of the terms of the judgment would be necessary to present this argu- legal division including an assistant city attorney, ment. executive assistant, and the municipal court clerk 30. Doyle I, Tr., p. 132. 31. Doyle I, Tr. p. 131. and staff. Responsibilities include preparing legal 32. Doyle I, Tr., p. 144. opinions, court papers, administrative regulations, 33. This Court is mindful of the Due Process of Law implications contracts, ordinances, resolutions, deeds, leases and of the “virtual representation” doctrine. 34. The concept is discussed in Am. Jur.2d. Judgments, § 596. other legal documents. This position advises the 35. Doyle obliquely argues this principle at page 11 in the open- department managers, city officials, city boards and ing Brief. “Evidential estoppel” differs from judicial estoppel in the city commission on legal issues. Qualifica- that the latter doctrine provides a party who knowingly assumed a tions include a Juris Doctorate degree and a license to particular position dealing with matters of fact is estopped from assuming an inconsistent position to the prejudice of the adverse practice law in Oklahoma and more than five years party. This rule ordinarily applies to inconsistent positions assumed experience in municipal government or related expe- in the course of the same judicial proceeding or in subsequent rience and/or training. Salary is commensurate on proceedings where the parties and questions are identical. Harding & Shelton, Inc. v. The Prospective Investment and Trading Co., Ltd., experience. Application must be received by March 2, 2005 OK CIV APP 88, ¶ 27, 123 P.3d 56, 64. D. Smith was not a party 2009 at 401 W. Garriott, Enid, Oklahoma 73701, or in Doyle I, but was privy with Smith. apply on-line at www.enid.org. The City of Enid is proud to be an Equal Opportunity Employer and a Drug Free Workplace.

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF diana lynn mooreland-rucker, SCBD #5494 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Dis- ciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Diana Lynn Mooreland-Rucker should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Oklaho- ma City, Oklahoma, at 9:30 a.m. on Friday, April 3, 2009. Any person wishing to appear should contact Janis Hubbard, First Assistant Gen- eral Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007, no less than five (5) days prior to the hearing. PROFESSIONAL RESPONSIBILITY TRIBUNAL

390 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS tion of a Controlled Dangerous Substance, Summary Opinions Case No. CF-2003-2347 in the District Court of Wednesday, January 21, 2009 Oklahoma County. Appellant was sentenced to fifteen (15) years imprisonment. It is from this RE-2008-0130 — Appellant, Keith Andrew judgment and sentence that Appellant appeals. Tackett, pled guilty April 9, 2007, to Accessory AFFIRMED. Opinion by: Lumpkin, J.; C. John- After the Fact. He was sentenced to sixty-six son, P.J.: Concur; A. Johnson, V.P.J.: Concur; months, suspended, with rules and conditions Chapel, J.: Concur; Lewis, J.: Concur in Result. of probation, and a $500,000 fine plus costs and assessments. An application to revoke Appel- Friday, January 30, 2009 lant’s suspended sentence was filed August 15, RE-2008-47 — Terry Lee Smalle, Appellant, 2007. Following a hearing January 31, 2008, the entered a plea of Nolo Contendere to a charge Honorable Tom Gillert, District Judge, granted of Grand Larceny in Bryan County District the State’s application to revoke Appellant’s Court Case No. CF-1998-113. Appellant was suspended sentence. Appellant appeals from sentenced to ten years incarceration with all this revocation. The revocation of Appellant’s but the last five years suspended pursuant to suspended sentence is AFFIRMED. Opinion terms and conditions of probation. Appellant by: Lewis, J.; C. Johnson, P.J., Concurs; A. John- later entered a plea of Nolo Contendere to Bur- son, V.P.J., Concurs; Lumpkin, J., Concurs; glary in the Second Degree in Bryan County Chapel, J., Not Participating. District Court, Case No. CF-2005-636. Appel- Thursday, January 22, 2009 lant was sentenced to ten years incarceration, all suspended. The sentence in CF-2005-636 F-2008-171 — Ramon Jamel Samuels, Appel- was ordered to run concurrently with the sen- lant, was convicted after a non-jury trial in tence in CF-1998-113. Appellant’s suspended Case No. CF-2007-2562 in the District Court of sentences were subsequently revoked in full by Tulsa County, of Trafficking in Illegal Drugs the Honorable Mark R. Campbell, District (Count I), Failure to Obtain a Drug Tax Stamp Judge. From these orders of revocation, Appel- (Count IV), Possession of Marijuana, Second lant has perfected his appeal. The District Offense (Count V), Posession of Controlled Court’s orders revoking Appellant’s suspend- Dangerous Drug (Count VI) and Possession of ed sentences are AFFIRMED. Opinion by: A. Paraphernalia (Count VIII). The trial court sen- Johnson, V.P.J.; C. Johnson, P.J.: Concur; Lump- tenced Appellant to ten years imprisonment kin, J.: Concur; Chapel, J.: Concur in Results; and a $25,000.00 fine on Count I, five years Lewis, J.: Concur. imprisonment and a $250.00 fine on each of Counts IV and V, ten years imprisonment and F-2007-806 — Mark Lewis Paul, Appellant, a $250.00 fine on Count VI, and one year in the was tried in a bench trial and convicted of three county jail and a $250.00 fine on Count VIII. All counts of Indecent Exposure in Case No. CF- sentences were ordereed to run concurrently. 2006-254 in the District Court of Beckham From this judgment and sentence Ramon Jamel County. The Honorable Charles L. Goodwin, Samuels has perfected his appeal. AFFIRMED. District Judge, sentenced Paul to five years Opinion by C. Johnson, P.J.; A. Johnson, V.P.J., imprisonment on each count to run concur- Concurs; Lumpkin, J., Concurs in Results; Cha- rently with each other, with the execution of pel, J. Concurs; Lewis, J., Concurs. sentence to be suspended. From this judgment and sentence, Mark Lewis Paul has perfected Friday, January 23, 2009 his appeal. The Judgment and Sentence of the F-2008-170 — Appellant Delois Ann Briggs District Court is AFFIRMED. Opinion by: A. was convicted in a non-jury trial of Distribu- Johnson, V.P.J.; C. Johnson, P.J., concurs; Lump-

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 391 kin, J., concurs; Chapel, J., concurs; Lewis, J., Wednesday, February 4, 2009 concurs. RE-2008-50 — Jeremy Jess Renfro, Appellant, Monday, February 2, 2009 appeals from the revocation of his concurrent suspended sentences totaling four years in F-2007-1268 — Appellant, Ryan Lee Jones, Case Nos. CF-2003-143, CF-2004-100, CF-2004- was convicted, after a bench trial, of lewd or indecent proposals or acts to a child under six- 106, CF-2004-116 and CF-2004-137 in the Dis- teen (16) in violation of 21 O.S.Supp.2006, trict Court of Choctaw County, by the Honor- § 1123, in Coal County District Court Case No. able James R. Wolfe, Associate District Judge. CF-2007-31, before the Honorable Richard E. On November 8, 2007, the State filed applica- Branam, District Judge. Judge Branam sen- tions for revocation of Appellant’s suspended tenced Jones to eighteen (18) years imprison- sentences in all of his cases alleging Appellant ment, with all but the first six (6) years sus- violated the terms of his suspended sentence pended. From the Judgment and Sentence, by (1) committing the new crimes of False or Jones has perfect his appeal to this Court. Bogus Check (two counts) as charged in Choc- AFFIRMED. Opinion by: Lewis, J.; C. Johnson, taw County Case No. CF-2007-170; (2) testing P.J. Concurs; A. Johnson, V.P.J., Concurs; Lump- positive for methamphetamine on August 1, kin, J., Concurs; Chapel, J., Concurs. 2007; (3) failing to pay court costs; and (4) failing to pay restitution. On January 3, 2008, the C-2008-541 — Petitioner Ronald Dwayne Court found that Appellant had violated the Thompson, was charged conjointly with Clar- terms and conditions of his suspended sen- ence Rozell Goode, Jr., and Keneth Dominick tences as alleged. On January 8, 2008, Judge Johnson, with three counts of First Degree Wolfe revoked Appellant’s concurrent sus- Murder, 21 O.S.2001, § 701.1, [all three were pended sentences totaling four years in full. charged alternatively with three counts of mal- The revocation of Appellant’s suspended sen- ice murder or felony murder] and one count of tences in Case Nos. CF-2003-143, CF-2004-100, First Degree Burglary 21 O.S.2001, § 1431, in CF-2004-106, and CF-2004-116 and CF-2004- Tulsa County District Court Case No. CF-2005- 137 in the District Court of Choctaw County is 3904. The State entered into an agreement with AFFIRMED. Opinion by: A. Johnson, V.P.J.; Thompson that the State would not file a bill of C. Johnson, P.J., concurs; Lumpkin, J., concurs; particulars against Thompson and agree to a life without parole sentence, if he would testify Chapel, J., concurs; Lewis, J., concurs. against the co-defendants. Apparently, Thomp- Thursday, February 5, 2009 son did not like the agreement, so he entered a blind plea before the Honorable Tom C. Gillert, F-2007-10 — William Basil Manship, Jr., District Judge, on March 17, 2008. On April 28, Appellant, was charged by information in Pot- 2008 Judge Gillert sentenced Thompson to life tawatomie County District Court, Case No. without the possibility of parole on the first CF-2007-327, with Count I, First Degree Rape murder count, life on the remaining murder in violation of 21 O.S.Supp.2001, § 1114(A)(3); counts, and twenty (20) years on the first Count II, Kidnapping in violation of 21 degree burglary count. On May 8, 2008, Thomp- O.S.Supp.2004, § 741; and Count III, Feloni- son filed an application to withdraw the plea ously Pointing a Firearm in violation of 21 alleging that he would not have entered a plea O.S.Supp.2001, § 1289.16. A jury trial was held and waived his right to jury trial had he fully before the Honorable Douglas L. Combs, Dis- understood the consequences. After a hearing trict Judge. The jury found Appellant guilty as on May 19, 2008, the application was denied. It charged on all three counts and recommended is that denial which is the subject of this appeal. sentences of 15 years, 5 years and 10 years, From this Judgment and Sentence, Petitioner respectively. The court ordered the sentences to has perfected his appeal. The Judgment of the run consecutively to one another. From this trial court is AFFIRMED and Petitioner’s Appli- Judgment and Sentence, William Basil Man- cation for Writ of Certiorari is DENIED. Opin- ship, Jr., has perfected his appeal. AFFIRMED. ion by: Lewis, J.; C. Johnson, P.J., Concurs; Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Con- A. Johnson, V.P.J., Concurs; Lumpkin, J., Con- curs; Chapel, J., Concurs. curs; Chapel, J., Concurs in Results.

392 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 F-2007-1202 — Stephen Paul Hawzipta, S-2008-761 — Robert Lee Smallen was Appellant, was tried by jury for the crime of charged by Information with First Degree Mur- Lewd Molestation in Case No. CF-2006-185 in der in Case No. CF-2007-321 in the District the District Court of Cherokee County. The Court of Cherokee County. The district court jury returned a verdict of guilty and recom- granted Smallen’s motion to suppress state- mended as punishment ten (10) years impris- ments made to police during a videotaped onment, subject to a one (1) year review. The interview conducted shortly after he was taken trial court sentenced accordingly. From this into custody. Pending this appeal by the State, judgment and sentence Stephen Paul Hawzipta the district court stayed its suppression order. has perfected his appeal. AFFIRMED. Opinion The State appeals claiming the district court by: Chapel, J.; C. Johnson, P.J., concur; A. John- erred by suppressing the videotaped statements. The order of the district court suppress- son, V.P.J., Concur; Lumpkin, J., Concur in ing the statements and videotaped interview of Results; Lewis, J., Concur. Robert Smallen is AFFIRMED. Opinion by: M-2008-332 — Billy Wayne Gregory, Appel- A. Johnson, V.P.J.; C. Johnson, P.J., concurs; lant, appeals from his misdemeanor Judgment Lumpkin, J., concurs; Chapel, J., concurs; Lewis, and Sentence, imposed after a non-jury trial J., concurs. before the Honorable William C. Kellough, Monday, February 9, 2009 District Judge, in Case No. CF-2007-4874 in the District Court of Tulsa County. Appellant was F-2007-1161 — Marcus Lavon Franklin, convicted of Public Intoxication and was sen- Appellant, was tried by jury and convicted of tenced to thirty days in the Tulsa County Jail Count 1, robbery with a dangerous weapon, in plus a fine of $100.00. Appellant’s Judgment violation of 21 O.S.2001, § 801; Count 2, endan- and Sentence in Case No. CF-2007-4874 in the gering another while eluding a police officer, in District Court of Tulsa County is AFFIRMED. violation of 21 O.S.2001, § 540A; Count 3, driving under suspension, a misdemeanor, in vio- Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., lation of 47 O.S.Supp.2005, § 6-303; and Count Concur; Lumpkin, J., Concur; Chapel, J., Con- 4, driving without owner’s security verifica- cur; Lewis, J., Concur. tion form, in violation of 47 O.S.Supp.2006, F-2008-225 — Deangelo Lamont Penny, § 7-606, in Tulsa County District Court, Case Appellant, was tried by jury for the crimes of No. CF-2006-5738. The jury found that Appel- Count 1: Trafficking in Cocaine Base, After lant committed Counts 1 and 2 after a prior Conviction of Two or More Drug-Related Felo- felony conviction, and sentenced Appellant to nies; Count 3: Driving without a License; sixteen (16) years imprisonment in Count 1, Count 4: Speeding; and Count 6: Obstructing eight (8) years imprisonment in Count 2, six (6) an Officer, in Case No. CF-2007-1674 in the months in jail in Count 3, and a fine of $1.00 in District Court of Tulsa County. The jury Count 4. The District Court, Hon. Dana Kuehn, returned a verdict of guilty and given Appel- District Judge, sentenced Appellant to serve Counts 1 and 2 consecutively, but concurrent to lant’s criminal history, the jury imposed the Count 3. From this judgment and sentence, mandatory sentence of life imprisonment with- Marcus Lavon Franklin has perfected his out parole on Count 1. The jury also recom- appeal. AFFIRMED. Opinion by: Lewis, J.; mended sentences of fifteen days in the county C. Johnson, P.J., Concurs; A. Johnson, V.P.J., jail on Count 3, ten days in the county jail on Concurs; Lumpkin, J., Concurs; Chapel, J., Count 4, and one year in the county jail on Concurs. Count 6. The Honorable William C. Kellough, District Judge, imposed judgment and sentence Tuesday, February 10, 2009 in accordance with the jury’s verdict, ordering F-2007-814 — Alfred Timothy Poolaw, Appel- all sentences to be served concurrently. From lant, was tried by jury for the crimes of Child this judgment and sentence Deangelo Lamont Abuse (Count 1), Child Stealing (Count 2), and Penny has perfected his appeal. AFFIRMED. Domestic Abuse — Assault and Battery (Count Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., 3) in Case No. CF-2005-179 in the District Court Concurs; Lumpkin, J., Concurs; Chapel, J., Spe- of Caddo County. The jury returned a verdict cially Concurs; Lewis, J., Concurs. of guilty and recommended as punishment

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 393 thirty years imprisonment on Count 1, five Friday, February 13, 2009 years imprisonment on Count 2, and four years RE-2008-334 — Billy Wayne Gregory, Appel- imprisonment on Count 3. The trial court sen- lant, appeals from the revocation of his two tenced accordingly and ordered the sentences year suspended sentence in Case No. CF-2006- to be served consecutively. From this judgment 5073 in the District Court of Tulsa County. and sentence Alfred Timothy Poolaw has per- Appellant entered a plea of guilty and was fected his appeal. The Judgment and Sentence convicted of Count 1 — Driving Under the of the District Court is AFFIRMED. Opinion Influence of Alcohol, 2nd Offense, and was by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; sentenced to a term of two years, with the sen- Lumpkin, J., concurs; Chapel, J., concurs in tence suspended. The District Court found part, dissents in part; Lewis, J., concurs. Appellant had violated rules and conditions of his probation and, on March 27, 2007, revoked F-2007-252 — Eric Lamont Watson, Appel- his two year suspended sentence. The revoca- lant, was tried by jury for the crimes of Murder tion of Appellant’s two year suspended sen- in the First Degree (Count 1), Possession of a tence in Case No. CF-2006-5073 in the District Firearm After Former Conviction of a Felony Court of Tulsa County is AFFIRMED. Opinion (Count 3), and Joyriding (Count 4) in Case No. by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; CF-2006-1372 in the District Court of Tulsa Lumpkin, J., concurs; Chapel, J., concurs; Lewis, County. The jury returned a verdict of guilty J., concurs. and recommended as punishment life impris- COURT OF CIVIL APPEALS onment on each of Counts 1 and 3, and a $500 (Division No. 1) fine on Count 4. The trial court sentenced Friday, January 23, 2009 accordingly and ordered the life sentences be served consecutively. From this judgment and 102,020 — (Cons. w/103,817) Sonny Lauren Harmon, Sr., on behalf of the Harmon Family, sentence Eric Lamont Watson has perfected his their personal Belongings & Damages to the appeal. The Judgment and Sentence of the Dis- Structures at 302 N. Elm & 609 Bradley Streets trict Court is AFFIRMED. Opinion by: A. John- in Pauls Valley, OK, Garvin County, Plaintiff/ son, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, Appellant, vs. Agents, Lydia Williams, David J., concurs in result; Chapel, J., concurs in part Cathey and the Oklahoma State Bureau of and dissents in part; Lewis, J., concurs. Investigation ex rel. the State of Oklahoma, Thursday, February 12, 2009 Defendants/Appellees. Appeal from the Dis- trict Court of Garvin County, Oklahoma. Hon- RE 2008-86 — Appellant, Maurice C. Wash- orable Candace L. Blalock, Judge. Appellant, ington, pled guilty May 1, 2001, in Garfield appeals from the trial court’s orders granting County District Court Case No. CF-2000-166 to partial relief to Plaintiff in his replevin/dam- Knowingly Concealing Stolen Property. He ages action and from the trial court’s order was sentenced to five years suspended pursu- denying his motion for new trial. Appellant ant to rules and conditions of probation. The asserts he is entitled to compensation for prop- sentence was ordered to run consecutively to erty damage and contends he is entitled to CF-1999-213. The State filed an Application to double damages under 12 O.S. 2001 §1571.1. Revoke Suspended Sentence on June 21, 2007. Appellant has no legal claim to those items and cannot derive benefit from §1571.1. He also An Amended Application to Revoke was filed argues he should be awarded damages because on November 19, 2007. Following a revocation Appellees have not returned his two weapons. hearing January 22, 2008, the Honorable Den- Appellant has not designated a suitable person nis W. Hladik, District Judge, revoked Appel- to which the weapons could be released. Addi- lant’s suspended sentence in full, five years. tionally, Appellant did not prove which seized Appellant appeals from this revocation. The items belonged to him and he failed to demon- revocation of Appellant’s suspended sentence strate he was entitled to more property than is AFFIRMED. Opinion by Lumpkin, J.; that which the court awarded him. Appellant’s C. Johnson, P.J., concur; A. Johnson, V.P.J., con- issue with the validity of the search warrant is cur; Chapel, J., concur; Lewis, J., concur. immaterial for the purposes of this appeal and

394 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 his argument that he was wrongly convicted is after issuance. Appellant argues for a distinc- also irrelevant to this civil proceedings. He has tion in treatment of its debt based upon factors failed to demonstrate the court abused its dis- not supported in the language of 68 O.S.2001 cretion in denying his motion for new trial. We § 1209(a), which looks solely to the interval find the court’s order to contain sufficient find- between issuance and the date the indebted- ings of fact and conclusions of law within the ness is payable. Appellant’s debt issuance-to- meaning of 12 O.S. 2001 §611. The judgment of payment interval exceeded those time limits the trial court is AFFIRMED. Opinion by Bell, and § 1209(a) required that the debt be treated P.J.; Adams, J., and Buettner, J., concur. as capital. The Oklahoma Tax Commission’s order is supported by substantial evidence and 104,712 — (Consolidated with 105,016) Linda is not contrary to law. An additional issue Kaye Payne, now Van Buskirk, Plaintiff/Appel- regarding classification of debt as capital is not lant, vs. Ramon Charles Payne, Defendant/ preserved for review. Accordingly, the order is Appellee. Appeal from the District Court of AFFIRMED. Opinion by Adams, J.; Bell, P.J., Oklahoma County, Oklahoma. Honorable and Buettner, J., concur. Geary L. Walke, Trial Judge. Consolidation of two appeals (No. 104,712 and No. 105,016) 106,197 — Larry E. Fox, Petitioner, vs. City of with Case No. 104,712 as surviving number. Oklahoma City and The Workers’ Compensa- Case No. 104,712 is an appeal of an order sus- tion Court, Respondent. Proceeding to Review taining a demurrer and finding that child sup- an Order of The Workers’ Compensation Court. port was implicitly terminated by a prior order Honorable Cherri Farrar, Trial Judge. Petition and that laches and estoppel barred other Larry E. Fox seeks review of an order of The claims. Case No. 105,016 is the appeal of an Workers’ Compensation Court which found order awarding attorney fees and costs. HELD: that Fox did not sustain an injury arising out of The denial of claimed medical and daycare and in the course of his employment with expenses based upon a failure to sustain the Respondent City of Oklahoma City (Employ- burden of proof is not clearly against the er). Competent evidence supports the trial weight of the evidence and is affirmed. The court’s order and we sustain. SUSTAINED. trial court decision sustaining the demurrer to Opinion by Buettner, P.J.; Adams, J., and Joplin, Appellant’s evidence is reversed, and the issue J. (sitting by designation), concur. of child support must be remanded for the trial 106,333 — OU Medical Center and Zurich court’s consideration following receipt of American Insurance Company, Petitioners, vs. Appellee’s evidence. The view that 43 O.S.2001 Joy Elaine Davis and The Workers’ Compensa- § 111.1(C)(2) applied when this case was heard tion Court, Respondents. Proceeding to Review and that it mandated the imposition of an an Order of a Three-Judge Panel of The Work- order for attorney fees and costs fails to give ers’ Compensation Court. Petitioners OU Med- due regard to the clear words of the statute, ical Center and Zurich American Insurance and the resulting order is reversed. AFFIRM- Company (collectively “Employer”) seek ED IN PART, REVERSED IN PART, AND RE- review of an order of a three-judge panel of the MANDED. Opinion by Adams, J.; Bell, P.J., and Workers’ Compensation Court which affirmed Buettner, J., concur. the trial court’s order finding that Respondent 104,827 — Saied Music Company, Appellant, Joy Elaine Davis sustained a work-related vs. The Oklahoma Tax Commission, Appellee. injury to the lower back. Competent evidence Appeal from the Oklahoma Tax Commission. supports the panel’s order and we sustain. Appeal of an order of the Oklahoma Tax Com- SUSTAINED. Opinion by Buettner, J.; Bell, P.J., mission which denied a protest to the assess- and Adams, J., concur. ment of additional franchise tax for the 2003- Friday, January 30, 2009 2005 tax years based upon the classification of certain debt as capital. HELD: The franchise 104,511 — Richard C. Blevens and Evelyn tax is imposed upon business organizations Blevens, Trustees of The Richard C. Blevens based upon the capital used, invested or Trust; and Richard C. Blevens and Evelyn Blev- employed by them, and capital includes the ens, Trustees of The Evelyn Blevens Trust, amount of various types of indebtedness which Plaintiffs/Appellants, vs. Ralph E. Keith II and mature and are payable more than three years Janel Keith, Defendants/Third-Party Plain-

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 395 tiffs/Appellees, vs. Richard C. Blevens and denied. AFFIRMED. Opinion by Adams, J; Evelyn Blevens, Third-Party Defendants. Bell, P.J., and Buettner, J., concur. Appeal from the District Court of McClain 105,355 — J. Philip Adamson, Plaintiff/ County, Oklahoma. Honorable Charles N. Appellant, vs. Phoenix Village One Associates, Gray, Trial Judge. Appeal from the denial of a Ltd. and Ed Gage, Defendants/Appellees. motion to vacate a trial court order treated by Appeal from the District Court of Muskogee the parties as a judgment. The Court noted the County, Oklahoma. Honorable Jeffery Patton, absence of either the resolution of a breach of Judge. The Oklahoma Court of Civil Appeals warranty claim or an express determination or reversed and remanded this case in No. 102,594 direction of the trial court required by 12 in an “... action to determine the right of Appel- O.S.2001§ 994(A) in order to make an order lant, J. Philip Adamson (Adamson), to receive which resolves less than all of the claims by a proportionate distribution upon liquidation and between all parties a final judgment. of Appellee, Phoenix Village One Associates, Appellants timely responded to an order to Ltd. (Partnership).” After remand, Partnership show cause why the appeal should not be dis- paid Adamson, an assignee of a limited part- missed as premature and they advised of the ner, $50,000 as his share of Partnership’s dis- dismissal of the breach of warranty claims, solution. Adamson also claimed the right to appending a certified copy of a trial court order attorney fees and costs. On October 3, 2007, the which dismissed the breach of warranty claim. trial court heard Adamson’s Motion for Attor- The Court then filed a second order which con- ney Fees. It did not find entitlement to attorney cluded that if Appellants filed an Amended fees, but awarded Adamson $1,295 in costs. We Petition in Error, attaching a certified copy of affirm. AFFIRMED. Opinion by Buettner, J.; the order dismissing the breach of warranty Bell, P.J., and Adams, J., concur. claims, the appeal could proceed. Appellants have not filed any amended or supplemental 105,941 — Consumat Systems, Inc. and Okla- petition in error. HELD: The appeal stands in homa Property & Casualty Insurance Guaranty the same status of prematurity as at the time Association, Petitioners, vs. Darrell Stafford the initial Petition in Error was filed. The and The Workers’ Compensation Court, appeal is dismissed as premature pursuant to Respondents. Proceeding to Review an Order Okla.Sup.Ct.R. 1.26 because the order did not of a Three-Judge Panel of The Workers’ Com- resolve all of the claims by and between all of pensation Court. On May 9, 2008, a three-judge the parties and the record contains no express panel of The Workers’ Compensation Court determination or direction as required by unanimously affirmed the order of the trial § 994(A) to make such an order a final judg- court entered February 4, 2008, which denied ment. DISMISSED AS PREMATURE. Opinion Claimant/Respondent Darrell Stafford’s (Staf- by Adams, J.; Bell, P.J., and Buettner, J., concur. ford) request for temporary total disability benefits, but also denied Employer/Petitioner 105,328 — In the Matter of the Adoption of Consumat Systems, Inc.’s (Consumat Systems) Baby Girl H., a minor child, Tommy Daniel and defense that Stafford’s Motion to Re-Open was Tara Daniel, Petitioners/Appellants, and Kim not timely filed. The trial court specifically Henderson, Co-Appellant, vs. Shawn E. Cor- found that “(t)he Court En Banc on September ley, Respondent/Appellee. Appeal from the 25, 2002 granted the claimant’s request for District Court of Cleveland County, Oklahoma. ‘hormonal patches.’ The motion to re-open this Honorable Stephen Bonner, Trial Judge. The cause was filed by the claimant November 8, biological mother of Baby Girl H. (Child), Kim 2004 well within the time allowed for the re- Henderson, and Child’s prospective adoptive opening of this cause pursuant to 85 O.S. parents, Tommy Daniel and Tara Daniel (Peti- §43(B).” Consumat Systems contended that the tioners), appeal a trial court order denying order allowing hormonal patches was merely a Petitioners’ application to adopt Child without continuation of medical maintenance, and not the consent of her biological father, Shawn E. a “last order,” and therefore insufficient to Corley. Because we conclude the trial court’s extend the time in which to file. We disagree order is supported by the clear weight of clear and affirm the order of the three-judge panel. and convincing evidence, we affirm. Corley’s AFFIRMED. Opinion by Buettner, J.; Bell, P.J., request for appeal-related attorney fees is concurs in result, and Adams, J., concurs.

396 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 Thursday, February 5, 2009 ard B. Darby, Judge. Plaintiffs/Appellants James Claborn and Debbie Claborn appeal 106,269 — Sonny Lauren Harmon, Plaintiff/ from judgment entered on a jury verdict in Appellant, vs. Paul Cradduck; Glynn Booher; favor of Defendant/Appellee Plains Cotton and Alice Turner, Defendant/Appellees. Cooperative Association d/b/a/ Oklahoma Appeal from the District Court of Oklahoma Cotton Cooperative Association (Plains Cot- County, Oklahoma. Honorable Daniel L. ton). The Claborns challenge the jury instruc- Owens, Trial Judge. Inmate seeks review of the tions and the trial court’s decision to sustain an trial court’s order granting the motion for sum- objection to a question of a witness. The trial mary judgment of Defendants/Appellees Paul court properly instructed the jury and did not Cradduck (Officer), Glynn Booher (Warden), abuse its discretion in sustaining the objection and Alice Turner (Assistant) on Inmate’s con- at issue. We affirm. AFFIRMED. Opinion by version claim. Inmate adduced no evidence Buettner, J.; BELL, P.J., and ADAMS, J., concur. affirmatively or inferentially demonstrating Officer wrongfully exercised any dominion 106,164 — Ponca Iron & Metal, Inc., Own over his personal property to establish his con- Risk #11794, Petitioner, vs. Jackie Wilkinson version claim. The individual defendants were and The Workers’ Compensation Court, not parties to the prior appeal, and the adjudi- Respondents. Proceeding to Review an Order cation of Inmate’s right to amend in the prior of The Workers’ Compensation Court. Honor- appeal did not determine the validity of any able Cherri Farrar, Judge. Petitioner (Employer) claims that he might add by amendment. The seeks review of an order of the Workers’ Com- record establishes Inmate did not raise Defen- pensation Court awarding Respondent (Claim- dants’ concealment in any of the prior admin- ant) temporary total disability (TTD) benefits istrative proceedings, and the supplemental and medical care, and denying Employer’s special report establishes Inmate’s failure to statute of limitations defense. Claimant’s job pursue his administrative remedy for the indi- duties encompassed continuous computer key- vidual defendants’ alleged concealment, a mat- board use and filing. Her employment was ter clearly beyond the decision in the prior terminated on December 18, 2005. On August appeal. While Inmate asserts the evidentiary 18, 2006, Claimant filed a Form 3 alleging she materials arguably establish the active conceal- sustained cumulative trauma injuries (carpal ment of Officer’s wrongdoing by Warden and tunnel syndrome) to both hands and arms with Assistant, having reviewed the record, we dis- a date of last exposure on December 18, 2005. cern no such evidence, and Inmate’s mere alle- Employer denied receiving proper notice of the gation of the existence of such a conspiracy claim and that the injury arose out of or in the among the individual defendants is insuffi- course of Claimant’s employment. Employer cient. Inmate’s property was seized as contra- also contends the court erred in denying its band under DOC policy, DOC afforded Inmate statute of limitations defense because the last an adequate administrative procedure to chal- sentence of 85 O.S. Supp. 2005 §43(A) clearly lenge the seizure of his personal property, limits a terminated employee’s time within Inmate presented his grievances in the admin- which to file a workers compensation claim to istrative process, and the record does not, six months after the termination date. Claim- therefore, support his claims of an illegal sei- ant argues this language should be interpreted zure without due process. AFFIRMED. Opin- as only applying to injuries sustained by a ion by Joplin, J.; Adams, P.J., concurs, and claimant after said claimant is terminated from Hansen, J., concurs in part and dissents in part employment, e.g. when a terminated employee with opinion. is injured while cleaning out his or her desk, vacating the premises and/or returning to the Friday, February 6, 2009 workplace to collect his or her final paycheck. 105,479 — James D. Claborn and Debbie The divergence of these arguments demon- Claborn, Plaintiffs/Appellants, vs. Plains Cot- strates the ambiguity of this language. Where ton Cooperative Association d/b/a Oklahoma an ambiguity exists as to legislative intent, the Cotton Cooperative Association, Defendant/ appellate courts invoke the construction which Appellee. Appeal from the District Court of is most reasonable. We therefore hold the last Jackson County, Oklahoma. Honorable Rich- sentence of §43(A) applies only to workers’

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 397 compensation claims filed by claimants for other hazardous materials backed-up into injuries sustained after termination from Appellant’s home causing damage to the home employment. The order of the trial court deny- and its contents. Appellant discovered the ing Employer’s statute of limitations defense is sewer backup was directly caused by Appel- SUSTAINED. Opinion by Bell, P.J.; Adams, J., lee’s installation of a new sewer line and aban- specially concurring with opinion, and Buettner, donment of an old sewer line on Appellant’s J., dissents. property. Appellant argued Appellee’s repair and replacement of a sewer line and abandon- Friday, February 13, 2009 ment of an old sewer line did not constitute 105,435 — Henry Tang, Amy Tang, Husband “an improvement to real property” as contem- and Wife and Next Friends of Allan Henry plated by §109. The sewer lines are appurte- Tang, Minor, Plaintiffs/Appellants, vs. Stacy nant to Appellant’s real property and integral Gill, Defendant/Appellee. Appeal from the to the habitability and operation of the home’s District Court of Tulsa County, Oklahoma. disposal, bathing, washing and toilet facilities. Honorable P. Thomas Thornbrugh, Judge. In Appellant’s averment that the defect was hid- this premises liability action, Henry and Amy den and undiscovered until 2007 implies the Tang, on behalf of their minor son, Allan (the old, abandoned sewer line and the new sewer “Tangs”), sued Stacy Gill (Defendant/Appel- line could not be removed from the real prop- lee/Gill) for damages Allan suffered in a near erty without some expense, excavation and drowning incident in the Gill’s residential disruption. This illustrates the permanence of pool. Gill and her mother chaperoned the the sewer line and the intention of both parties party. Allan was one of about twelve 9-10 year to make the sewer lines integral to the real old boys who received an invitation for and property. Additionally, the sewer line had no attended the Gill’s swim party August 9, 2002. separate value standing alone, other than the Allan was unable to swim and was instructed cost for parts. But, its placement on the real by his father to tell the host that fact, as well as property certainly improved the habitability to ascertain where the shallow end of the pool and value of the home. We hold the court prop- was. Allan did not reveal that he could not erly concluded the sewer line was an “improve- swim, but did find out where the shallow part ment to real property” under §109. We further of the pool was. The boys first played with find the trial court properly determined Appel- water guns in the shallow end. Allan then went lant’s breach of contract action was barred by after his gun toward the middle of the pool and the statute of limitations. AFFIRMED. Opinion failed to re-surface. This was noticed first by by Bell, P.J.; Adams, J., concurs in part and dis- one of the other children who rescued Allan sents in part, and Buettner, J., concurs. and called Gill, who was pool-side. Emergency (Division No. 2) measures were then put into action. The matter Wednesday, January 21, 2009 was tried to the court which rendered its verdict December 6, 2007 in favor of Defendant 105,760 — In the Matter of the Estate of Bob Gill. We affirm. AFFIRMED. Opinion by D. Rosencutter, Deceased. Nancy Rosencutter, Buettner, J.; Bell, P.J., and Adams, J., concur. Robert Rosencutter, Danny Rosencutter, Indi- vidually and as Personal Representative of Bob 105,884 — Dale Kirby, Plaintiff/Appellant, D. Rosencutter, Deceased, Lou Ann Brinsfield vs. Jean’s Plumbing Heat & Air, Defendant/ and Glenda O’Brien, Respondents/Appellants, Appellee. Appeal from the District Court of v. Randy Rosencutter, Petitioner/Appellee. Oklahoma County, Oklahoma. Honorable Bar- Appeal from the District Court of Tulsa Coun- bara G. Swinton, Judge. In this action for negli- ty, Hon. Linda G. Morrissey, Trial Judge. Nancy gence and breach of contract, Appellant appeals Rosencutter, Robert Rosencutter, Danny Ros- the trial court’s order dismissing his lawsuit encutter, Individually and as Personal Repre- against Appellee. Appellee sought dismissal of sentative of Bob D. Rosencutter, Deceased, Lou Appellant’s action pursuant to the statute Ann Brinsfield, and Glenda O’Brien (Respon- of repose at 12 O.S. 2001 §109 and the statute of dents), appeal the trial court’s April 10, 2008, limitations at 12 O.S. 2001 §95. In July 1996, order granting Randy Rosencutter limited Appellant contracted with Appellee to install a authority to file a petition on behalf of the new sewer line. In June 2007, raw sewage and Estate of his deceased father, Bob D. Rosencut-

398 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ter. Respondents contend the order constituted Moore’s bankruptcy] had been lifted.” Pursu- trial court error. We dismiss the appeal as pre- ant to Oklahoma statute, judgments are valid mature. DISMISSED. Opinion from Court of for five years unless certain specific steps are Civil Appeals, Division II, by Goodman, P.J.; followed. See 12 O.S. Supp. 2007 § 735(B). Since Fischer, J., and Gabbard, J. (sitting by designa- 3M failed to take any of the requisite actions, its tion), concur. judgment became unenforceable. 3M failed to timely extend the life of the judgment, and Friday, January 23, 2009 therefore the judgment and judgment liens are 105,706 — 3M Dozer Service, Inc., Plaintiff/ unenforceable and of no effect. A review of the Appellant, v. Barbara Moore Baker a/k/a Bar- pleadings and other evidentiary materials bara J. Moore a/k/a Barbara Jean Baker, shows there is no substantial controversy as to Spouse, if any, of Barbara Sue Baker, Karen Sue any material fact and that the trial court did not Moore, Debra K. Foster, Spouse, if any, of err in granting Appellees judgment as a matter Debra K. Foster, Hamm & Phillips Service of law. We find no reversible error and affirm its Company, Terry L. Seay, Spouse of Terry L. decision. AFFIRMED. Opinion from the Court Seay, if any, Dakota J. Gauley, Emily D. Gauley, of Civil Appeals, Division II, by Wiseman, J.; Shane P. Gauley, Carol S. Snow, Darrel L. Snow, Goodman, P.J., and Fischer, J., concur. and their unknown heirs or devisees, Defen- Monday, January 26, 2009 dants/Appellees. Appeal from the District Court of Major County, Hon. Ray D. Linder, 105,179 — Galmor’s Inc. and American Home Trial Judge, granting summary judgment in Assurance Company, Petitioners, v. Thomas favor of Appellees Barbara Moore (Moore) and Earl Appleton, and The Workers’ Compensa- Karen Sue Moore. On February 16, 1988, 3M tion Court, Respondents. Proceeding to Review obtained a judgment against defendant Moore. an Order of a Three-Judge Panel of the Work- The next day, 3M filed a certified copy of its ers’ Compensation Court, Hon. Gene Prig- judgment with the county clerk, which insti- more, Trial Judge. Employer Galmor’s Inc. tuted a lien on certain real property Moore seeks review of a three-judge panel’s October owned in Major County. On February 12, 1993, 2, 2007, order which affirmed the trial court’s 3M extended the judgment for another five June 21, 2007, order awarding Claimant Thom- years. In November 1996, Moore filed bank- as E. Appleton compensation benefits. The ruptcy. On June 11, 2001, 3M filed this separate issue on appeal is whether the award of com- action to foreclose its lien. Appellees moved for pensation benefits to Claimant is supported by summary judgment in December 2007, assert- competent evidence. We find that it is not and ing that 3M’s renewal filed in July 2002 is the reverse. REVERSED. Opinion from the Court “last action taken by 3M Dozer to renew the of Civil Appeals, Division II, by Goodman, P.J.; judgment” and as a consequence, the judgment Fischer, J., concurs, and Wiseman, J., dissents. is now dormant and unenforceable pursuant to Friday, January 30, 2009 12 O.S. Supp. 2007 § 735(B). 3M admitted that it had taken no renewal action since 2002 but 104,954 — Danny L. Johnson, Appellee, v. responded that such a fact “has no bearing on Marilyn Denice Johnson, Appellant. Appeal the issues now before this Court in view of the from the District Court of Oklahoma County, specific findings of fact and conclusions of law Hon. Allen Welch, Trial Judge, modifying the reached by the Court of Appeals and the amount of child support to be paid by Father Supreme Court [in their opinions from a previ- and denying Mother’s application for con- ous appeal reversing the trial court’s grant of tempt citation. Mother filed an application for summary judgment to Appellees].” 3M appears contempt citation in which she claimed that to conclude that because the Supreme Court Father owed her unpaid child support, unpaid previously granted 3M a reprieve, the renewal medical and dental bills, unpaid medical insur- statutes are no longer applicable. We disagree. ance premiums, and daycare expenses. Father The Supreme Court’s opinion specifically stat- then filed a motion to modify child support ed that “All we hold today is that [3M] was not alleging that he had suffered a substantial and barred as a matter of law from attempting to permanent loss of income. At trial, Father enforce its lien until at least 30 days after it claimed that he entered into an agreement with received notice that the bankruptcy stay [in Mother when he was laid off from his job in

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 399 late 2001, promising to pay Mother $200 per the on-the-job injury sustained by Claimant. month in addition to Father and his father CompSource asserts that it complied with the working for Mother’s janitorial service, all of provisions of 85 O.S.2001 § 64(G) by sending a which was to be counted toward Father’s child notice of cancellation by certified mail to support obligation. Mother denied that she Employer at its address stated in the policy. entered into any type of agreement with Father CompSource argues that an employer’s actual that his father would provide services in lieu of receipt of a cancellation notice is unnecessary payment of child support but admitted that to achieve an effective termination of workers’ Father and his father did provide services. compensation insurance coverage, provided Where the evidence is conflicting, we must that the notice mailed by the insurer complies defer to the trier of facts. The primary issue on with the statute’s requirements that it (1) spec- appeal here is whether Father should be held ify the effective cancellation date, and (2) pro- in contempt. This case involves indirect con- vide at least ten (10) days’ prior notice of the tempt, which consists “of willful disobedience intention to cancel on the specified date. The of any process or order lawfully issued or Oklahoma Supreme Court has made it clear made by court; resistance willfully offered by that, for purposes of cancelling a policy of any person to the execution of a lawful order or workers’ compensation insurance, a cancella- process of a court.” 21 O.S.2001 § 565. The issue tion notice sent by mail must be received by the on which this present appeal involving a ques- insured. See Rasberry v. R.O. Knost & Sons, 1930 tion of contempt for failure to pay child sup- OK 459, ¶ 12, 293 P. 778, 779-80. CompSource’s port turns is not whether the payor failed to appellate argument focuses on the fact and pay, but whether the failure to pay was willful. proof of mailing, rather than receipt of notice, There is no indication from the record that and is contrary to the well-established author- Father willfully failed to pay the child support ity on which the Workers’ Compensation Court as ordered, and the trial court correctly con- properly relied in determining CompSource’s cluded that Father was not in contempt for liability to Claimant pursuant to the policy. The willful failure to pay. Finding no error of law, Trial Court’s order finding that CompSource we must affirm the trial court’s decision on the did not effectively cancel the policy of workers’ issue of contempt. Mother also asserts that the compensation insurance issued to Employer is trial court should have imputed an income to both legally and factually correct. SUSTAINED. Father that he was capable of earning. We find Opinion from Court of Civil Appeals, Division no error in the trial court’s refusal to impute II, by Fischer, J.; Goodman, P.J., and Wiseman, Father’s former income to him when deciding J., concur. to modify his child support obligation. Mother failed to show that the trial court erred either 105,563 — In the Matter of the Adoption of as a matter of law in denying her application Baby W. Robert Ravitz, Oklahoma County for contempt citation or in failing to impute Public Defender, Appellant, vs. E.C. and S.C., income to Father as requested by Mother, and Prospective Parents/Appellees. Appeal from the order of the trial court is therefore affirmed. Order of the District Court of Oklahoma Coun- AFFIRMED. Opinion from Court of Civil ty, Hon. Brian H. Upp, Trial Judge. Appellant Appeals, Division II, by Wiseman, V.C.J.; Oklahoma County Public Defender seeks Barnes, P.J., and Goodman, J., concur. review of an order of the district court denying its motion to vacate Appellees’ (Parents) vol- Monday, February 2, 2009 untary dismissal of their petition for adoption. 105,680 — CompSource Oklahoma, Petition- This case concerns the adoption of an Oklaho- er, vs. Ryan Cason, Thermal Technologies and ma child by persons living in Massachusetts. The Workers’ Compensation Court, Respon- Parents previously adopted another child from dents. Proceeding to Review an Order of The the same birth mother. Following court pro- Workers’ Compensation Court, Hon. H. Thom- ceedings involving the natural mother’s volun- as Leonard, Trial Judge. Insurer CompSource tary relinquishment of her parental rights and Oklahoma seeks review of an order of the termination of parental rights of putative natu- Workers’ Compensation Court, which found ral fathers, the attorney for Parents submitted a that it had a policy of workers’ compensation proposed final decree of adoption to the dis- insurance in effect that provided coverage for trict court. The district court found “no compli-

400 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 ance” with Oklahoma County Administrative Defendant/Appellee. Appeal from Order of Order No. AD7-2006-21, In re Adoption Proce- the District Court of Oklahoma County, Hon. dures, June 1, 2006. By minute order, the district Vicki L. Robertson, Trial Judge. Appellant court directed Parents’ attorney to obtain Cindy Barrett seeks review of an order of the approval of final expenses from Public Defend- district court granting Appellee Donald K. er or to set the matter for a hearing with a spe- Hardin’s motions for dismissal and summary cial judge. In response, Public Defender filed judgment. Barrett worked for the Oklahoma an application to review and copy the contents Department of Consumer Credit (ODCC) from of the court file in order to “present it in a con- September 14, 1987, until her termination on fidential manner to the selected attorney for September 27, 2004. At the time of her termina- review of the case (i.e., potentially as an expert tion, Barrett served as Deputy Administrator. witness in the area of costs). Parents objected to Hardin, ODCC Administrator, was her super- Public Defender examining the court file or, as visor. Barrett alleges that in April 2004 she a non-party, otherwise interfering with the grew worried about apparent irregularities adoption. In a hearing on Public Defender’s occurring within ODCC. On two separate occa- application conducted on January 18, 2008, the sions, she met with commissioners of ODCC to district court granted Public Defender’s request report what she believed to be numerous viola- for file review. Parents then promptly moved tions of Oklahoma law committed by Hardin to dismiss their petition, advising the district in his capacity as Administrator. Hardin was court that they would finalize the adoption in subsequently terminated and filed this action. their home state. The district court entered an The State and Hardin in his official capacity order on the same day, dismissing the adoption were properly dismissed with respect to all “so Petitioners may finalize the adoption of claims asserted by Barrett. Likewise, Hardin in said child in their home state of Massachu- his invididual capacity was properly granted setts.” On January 23, 2008, Public Defender judgment on Barrett’s section 1983 claim based moved to set aside the district court’s January on an alleged violation of the Equal Protection 18 order of dismissal on grounds that the dis- clause of the Fourteenth Amendment to the missal left the child in “a situation of legal United States Constitution. However, we abandonment.” Appellant Public Defender remand consideration of Barrett’s section 1983 lacks standing, and, therefore, his appeal is claim based on an alleged violation of her First dismissed. See In re Adoption of Baby G., 2008 Amendment right to free speech. As to Barrett’s OK 92, 195 P.3d 377. However, the current state claim for tortious interference, a genuine issue of this case has presented to this Court a funda- of material fact exists as to whether Hardin’s mental issue of public interest that must be dismissal of Barrett exceeded the scope of his addressed. In this instance of a failed adoption, employment, and we remand the matter for the district court was required to hold a hear- further consideration by the district court of ing and enter an order regarding custody of the that claim consistent with this Opinion. child. Consequently, we vacate the January 18, AFFIRMED IN PART, REVERSED IN PART 2008, dismissal of Parents’ adoption petition AND REMANDED FOR FURTHER PRO- and remand the matter to the district court to CEEDINGS. Opinion from Court of Civil conduct the custody hearing required by 10 Appeals, Division, II, by Fischer, J.; Goodman, O.S.2001 § 7505-6.4. APPEAL OF PUBLIC P.J., and Wiseman, J., concur. DEFENDER DISMISSED, ORDER OF DIS- MISSAL VACATED AND CASE REMANDED 104,500 — Amy Suzanne Poe-Woolum, Peti- FOR HEARING AND ISSUANCE OF ORDER tioner/Appellee, v. Scott Fitzgerald Woolum, FOR LEGAL AND PHYSICAL CUSTODY OF Respondent/Appellant. Appeal from orders of CHILD PURSUANT TO 10 O.S.2001 § 7505-6.4. the District Court of Oklahoma County, Hon. Opinion from Court of Civil Appeals, Division Barry L. Hafar, Trial Judge, relating to child II, by Fischer, J.; Goodman, P.J., and Wiseman, support, alimony, property division, and con- J., concur. tempt citations. Husband asserts that the trial court erred in refusing to modify the tempo- Wednesday, February 4, 2009 rary support order and in finding him guilty of 105,792 — Cindy D. Barrett, Plaintiff/Appel- contempt. He further asserts that the evidence lant, vs. Donald K. Hardin, an individual, presented did not support the trial court’s cal-

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 401 culation of his income and that the award of Monday, February 9, 2009 support alimony to Wife was excessive, against 104,668 — SKS3, LLC, and Precision Build- the clear weight of the evidence, and should be ers, LLC, Plaintiffs/Appellees, v. Robert Chris- reversed. He also asserts that the property divi- tian Arrowood d/b/a Arrowood Companies, sion award was inequitable and an abuse of Inc., Defendant/Appellant. Appeal from an discretion. Husband bears the burden of pro- order of the District Court of Cleveland Coun- ducing to this Court a record that will clearly ty, Hon. Stephen Bonner, Trial Judge, granting demonstrate that the trial court’s findings and judgment against Arrowood. Arrowood nego- decree are contrary to the weight of the evi- tiated with SKS3 to lease office space under dence. We hold that the trial court correctly which SKS3 gave Arrowood a $20 per square denied Husband’s motion to modify as he foot build-out allowance to complete the office failed to establish a material change of circum- space. After the improvements were complete, stances between the date of the temporary sup- Precision presented Arrowood with an invoice port order and the date of his motion to modify. for the cost of the project in excess of the $20 We also hold that the record supports the trial per square foot allowance, which Arrowood court’s finding of contempt. Further, we hold failed to pay. SKS3 and Precision sued Arro- that the trial court did not abuse its discretion wood and the trial court granted judgment to in its imputation of Husband’s income for pur- the “Petitioner” and granted Defendant’s poses of child support. We do hold, however, “cross claim”. On October 23, 2008, this Court issued an order directing the parties to show that the trial court incorrectly calculated the cause why this appeal should not be dismissed arrearage in child support and alimony pay- for lack of an appealable order. In response to ments, and as a result, we reduce that part of this Court’s show cause order, the trial court the judgment to $18,250. Husband has not pro- entered an order nunc pro tunc. We find that duced to this Court sufficient evidence to the nunc pro tunc order entered by the trial establish that the trial court’s alimony award court must be reversed. It is clear from the was clearly contrary to the weight of the evi- record that, although the two companies, SKS3 dence, and we therefore affirm the award of and Precision, have common ownership, they support alimony. Finally, we hold that the trial are two distinct entities with distinct claims. court did not abuse its discretion in the divi- The plaintiffs in this action have different inter- sion of marital property. AFFIRMED AS MOD- ests; SKS3 is the landlord and Precision is the IFIED. Opinion from the Court of Civil Appeals, contractor providing goods and labor to Arro- Division II, by Wiseman, J.; Goodman, P.J., and wood. For these reasons, the order of the trial Fischer, J., concur. court must be reversed and the matter remanded for the trial court to determine the merits of Friday, February 6, 2009 each plaintiff’s claims, and if each plaintiff is 104,228 — Jimmie L. Henderson, Plaintiff/ entitled to a judgment, in what amount, as well Appellant, v. County Commissioners of Washi- as to correct the indefinite reference to “Peti- ta County, Defendant/Appellee, and Swoda tioner” in the judgment on Arrowood’s coun- Development Corporation, an Oklahoma not terclaim. Although this Court can look outside an ambiguous order and examine the four cor- for profit Corporation, Defendant. Appeal from ners of the record to interpret the trial court’s the District Court of Washita County, Hon. decision, see State ex rel. Oklahoma Board of Charles L. Goodwin, Trial Judge. Jimmie L. Medical Licensure and Supervision v. Pinaroc, Henderson appeals the trial court’s December 2002 OK 20, ¶ 9, 46 P.3d 114, 118, we cannot 21, 2006, order which, among other rulings, appropriately conduct a review on the merits dismissed his suit against County Commis- of the order before us, which on wholly indi- sioners of Washita County and SWODA Devel- vidual claims, fails to identify to whom a judg- opment Corporation. Based upon our review ment is granted and in what amount. The of the facts and applicable law, we affirm. attempt to cast the judgment for SKS3 and Pre- AFFIRMED. Opinion from Court of Civil cision as joint and several does not resolve the Appeals, Division II, by Goodman, P.J.; Fischer, deficiencies and ambiguities in the trial court’s J., concurs, and Wiseman, J., dissents. orders. Accordingly, this matter must be

402 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 reversed and remanded to the district court for ment against Appellant Thomas Fabri ordering entry of a new order in conformity with this the forfeiture of the respondent property to the opinion. REVERSED AND REMANDED FOR Appellee State of Oklahoma and from the trial FURTHER PROCEEDINGS. Opinion from the court’s subsequent denial of Appellant’s Court of Civil Appeals, Division II, by Wise- Motion to Vacate Default Judgment. During man, J.; Goodman, P.J., and Fischer, J., concur. the course of this appeal, “in the best interest of justice and procedural fairness,” the parties Wednesday, February 11, 2009 reached an agreement that this matter should 105,800 — Florene Thomas, Plaintiff/Appel- be reversed and remanded to the trial court for lant, v. M. C. Baldwin, Inc., a foreign corpora- the resolution of significant issues “regarding tion, d/b/a McDonald’s, Defendant/Appellee. the facts and circumstances surrounding the Appeal from Order of the District Court of forfeiture of the captioned property and pre- Okmulgee County, Hon. John Maley, Trial sentation of potential defenses.” Based on the Judge. This is an accelerated appeal of the trial parties’ agreement and stipulations, the default court’s March 26, 2008, Journal Entry of Judg- judgment entered by the trial court on July 10, ment, granting summary judgment in favor of 2007, and the order of November 28, 2007, Appellee M.C. Baldwin, Inc., a foreign corpora- denying Appellant’s Motion to Vacate Default tion, d/b/a McDonald’s (McDonald’s), and Judgment are reversed and the case remanded against Appellant Florene Thomas (Thomas). to the trial court for further proceedings. The dispositive issue is whether the trial court REVERSED AND REMANDED FOR FUR- erred by granting summary judgment in favor THER PROCEEDINGS. Opinion from the of McDonald’s and against Thomas, who Court of Civil Appeals, Division II, by Wise- slipped on the sidewalk on the McDonald’s man, V.C.J.; Barnes, P.J., and Goodman, J., restaurant premises, fell, and was injured. This concur. Court finds that, after considering all the evi- (Division No. 3) dentiary materials and the applicable law, Friday, January 30, 2009 there are disputed issues of fact concerning whether the condition of the sidewalk was an 104,479 — Peggy C. Bowen, Petitioner/ open and obvious hazard, whether the hazard Appellant, vs. Robert Charles Bowen, Respon- was deceptively innocent, and whether McDon- dent/Appellee. Appeal from the District Court ald’s knew or should have known of the dan- of Osage County, Oklahoma. Honorable John ger, all of which affect whether McDonald’s M. Kane, Judge. The parties married in 1988 had a duty to warn Thomas. Because of these and began divorce proceedings in 2003. The questions of material fact for a jury, this Court trial court issued the appealed from decree on concludes the trial court erred in granting sum- March 12, 2007. No children resulted from the mary judgment in favor of McDonald’s and marriage. The parties accumulated various against Thomas. We reverse and remand for property and debt during the course of their further proceedings. REVERSED AND RE- marriage and their seventeen day divorce trial MANDED FOR FURTHER PROCEEDINGS. consisted of argument and evidence regarding Opinion from Court of Civil Appeals, Division various property and how it should be divided II, by Barnes, P.J.; Wiseman, V.C.J., and Good- between the parties upon the dissolution of man, J., concur. their marriage. The court’s property accounting resulted in an award to Peggy Bowen Thursday, February 12, 2009 (Wife) of $81,188.50 to equalize the apportion- 105,407 — State of Oklahoma ex rel. Greg ment of the marital estate. Wife appealed the Mashburn, District Attorney for the Twenty- March 12, 2007 order and Husband counter- First Prosecutorial District, Petitioner/Appel- appealed. Wife claimed the trial court erred in lee, v. A Smith and Wesson .357 Handgun, disregarding a 2003 stipulation related to funds Serial #ACS1176 and $39,320.00 in U.S. Cur- in an account which were used by Wife during rency seized from Thomas Alexander Fabri, the pendency of the divorce. The stipulation Respondent/Appellant. Appeal from an order provided the funds were neither support ali- of the District Court of Cleveland County, Hon. mony nor property division. The trial court William C. Hetherington, Jr., Trial Judge. This determined the funds were a marital asset and appeal arises from the entry of a default judg- divided them as such. While it is possible to

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 403 gain relief from a stipulation upon a showing cow-calf operation which ceased to exist in any of good cause, Husband did not provide a suf- discernable respect years before the couple’s ficient showing of good cause to relieve him divorce. This error demonstrated an abuse of from this agreement. Thus the trial court abused the trial court’s discretion. This portion of the its discretion in disregarding the stipulation. court’s valuation and corresponding marital Wife had several propositions relating to vari- estate credit is reversed. Husband claims the ous pieces of property. First, the Okesa prop- Soderstrom property, purchased during mar- erty, owned by Husband prior to the marriage, riage and jointly titled, was his individual was improved during the couple’s marriage. property and should not have been placed in Wife disputes the improvement value assigned the marital estate. We find no abuse of discre- by the court. In reviewing the value-assess- tion in the trial court placing this property in ment elements to determine the share of the marital estate. Husband finally claims error enhanced value owed Wife, the trial court’s in the treatment of an antique car as marital decision demonstrates no abuse of discretion property. Husband also complains the court’s and is not contrary to the weight of the evi- value assessment for the car was too high. The dence. With regard to a Talala area property, car was purchased during marriage and jointly owned by Husband prior to the marriage, Wife titled. There was also evidence presented indi- requested that mortgage payments made cating the couple treated the car as a marital toward this property from the couple’s joint asset. Based on this evidence we do not find account be credited to her in the marital estate error in the court placing the car in the marital accounting. The trial court declined to do so. estate. There was competent, though conflict- Husband presented evidence these payments ing, evidence to support the court’s valuation were matched with corresponding reimburse- as well. The order of the trial court, granting ments from Husband’s own funds. No abuse of the decree of divorce and dissolution of mar- discretion was demonstrated. Wife next com- riage of Robert and Peggy Bowen, is affirmed plains that eleven items of personal property, in part, reversed in part and the cause remand- valued at $20,000.00, were awarded as Hus- ed. The order of the trial court is affirmed in all band’s separate property. As Husband pro- respects, except as to the trial court’s disregard duced evidence these items were his separate of the parties’ stipulation entered into on June property, even though Wife presented conflict- 23, 2003 and the trial court’s finding of value ing evidence, this award did not demonstrate and award of value to Wife in the couple’s an abuse of discretion, nor was it contrary to cow-calf operation, which did not exist in any the weight of the evidence. Husband alleged discernable respect at the time of the couple’s error in awarding as Wife’s separate property divorce. The remainder of the trial court’s an IRA account in Wife’s name, which consist- order is undisturbed. This cause is remanded ed of funds accumulated during the marriage. to the trial court for implementation of a prop- Based on existing authority, the trial court may erty accounting in accord with this decision. examine the particular situation to determine AFFIRMED IN PART, REVERSED IN PART whether such pension benefits are marital and REMANDED. Opinion by Joplin, J.; Han- property or not. Given the trial court’s discre- sen, P.J., and Mitchell, C.J., concur. tion with respect to such property, we do not find any abuse of discretion in this case. Hus- 104,923 — In the Matter of the Appeal of band also took issue with the trial court’s valu- Rodney J. Young from the Decision of the ation of an antique piano and vellums, claim- Board of Adjustment of the City of Tulsa, Okla- ing the antiques were given too low a value homa, BOA Case NO. 20302. Rodney J. Young, and should have been awarded to Wife, but Appellee, vs. City of Tulsa, Oklahoma, a munic- credited in their entirety to Husband for the ipal corporation, ex rel. Board of Adjustment of marital estate accounting. Husband’s treat- the City of Tulsa, Appellant. Appeal from the ment of the antiques as a marital asset and District Court of Tulsa County, Oklahoma. information regarding value were consistent Honorable Mary Fitzgerald, Judge. Appellant with the trial court’s award and not shown to City seeks review of the trial court’s order be clearly against the weight of the evidence. granting a hardship zoning variance to Appel- Husband alleged error with respect to the lee Young. In this appeal, City asserts the evi- value and marital estate credit given Wife for a dence does not support a finding of hardship

404 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 as to warrant a variance. In the present case, cally, that Father should be awarded sole cus- the evidence showed Young’s house had been tody of the child. The authority of the trial built toward the rear of the lot, less than eight court to appoint a guardian ad litem is set out (8) feet from the later-imposed rear setback in 43 O.S.2006 §107.3. Nowhere in this section restriction of City’s zoning ordinances. The or elsewhere is the GAL given authority to evidence also showed that City’s board of appeal from a trial court custody order that adjustment previously granted to Young’s does not follow the recommendations of the neighbor a variance of the required rear yard GAL. Accordingly, this appeal is dismissed. from 25’ to 16’, and granted variances permit- Mother’s motion for appeal related attorney ting encroachment of the side setback require- fees is denied. APPEAL DISMISSED. Opinion ments in the addition. From this evidence, one by Hansen, P.J.; Joplin, J., concurs, and Mitch- might reasonably conclude that application of ell, C.J., specially concurs. the zoning ordinances resulted in an “unneces- 105,853 — Toby Vannoy and Mary Vannoy, sary hardship” to Young. One might also rea- Plaintiff/Appellees, vs. Earth Biofuels, Inc., a sonably conclude that a variance permitting Delaware Corporation, Defendant/Appellant. Young’s encroachment into the rear setback is Appeal from the District Court of Bryan Coun- not consistent with the existing improvements ty, Oklahoma. Honorable Mark Campbell, Trial previously allowed within the Woody Crest Judge. Appellant (Earth) seeks review of the addition, and does not, in any substantial man- trial court’s order denying its petition to vacate ner, violate either the public interest in the a default judgment entered against it for orderly development of the addition, or the $1,000,000.00 in favor of Appellees (Vannoys) public policy expressed by City’s zoning ordi- in their tort action to recover for personal nances, which clearly permit a variance in injury. The trial court denied the petition citing appropriate circumstances. The trial court’s District Court Rule 10. Title 12 O.S. Supp.2002 judgment is not clearly contrary to the weight §2004(B)(2) requires notice of the specific of the evidence. AFFIRMED. Opinion by Jop- amount of damages sought be given the party lin, J.; Hansen, P.J., and Mitchell, C.J., concur. against whom default judgment is sought. A 105,532 — Traci R. Rowe, Plaintiff/Appellee, statute must prevail over a conflicting court vs. Michael B. Rowe, Defendant/Appellee, and rule. Therefore, to the extent Rule 10 conflicts Donelle H. Ratheal, Guardian Ad Litem/ with §2004(B)(2), the statute prevails. The trial Appellant. Appeal from the District Court of court’s order is reversed and this matter is Oklahoma County, Oklahoma. Honorable remanded for further proceedings. REVERSED Barry L. Hafar, Trial Judge. In this divorce AND REMANDED. Opinion by Hansen, P.J.; action, the trial court granted shared custody Mitchell, C.J., and Joplin, J., concur. of the minor child to Plaintiff/Appellee (Moth- 105,994 — In the Matter of: P.K.D., dob er) and Defendant/Appellee (Father). Soon 6/2/2007; M.D., dob 1/24/2001; S.D.D., dob thereafter, Father sought sole custody. The 2/25/2002; N.G.D., dob 6/1/2006, alleged court appointed Donnelle H. Ratheal as Guard- deprived children. Shawn Dreadin and Tracy ian Ad Litem (GAL) for the minor child. The Ladwig, Appellants, vs. The State of Oklahoma, GAL met with the parties and with the child to Appellee. Appeal from the District Court of address issues relating to his education and Grady County, Oklahoma. Honorable John E. well being and made recommendations to the Herndon, Judge. Appellants (Parents) appeal parties for a revised custody schedule. GAL from an adjudication of deprived status of their filed a motion to modify the decree as to inter- four minor children. Parents argue the trial im custody and visitation and to give Father court erred in denying their Motion for Jury sole custody with supervised visitation by Trial and that the determination of deprived Mother. The court granted sole and exclusive status on the basis of allegations of heinous and custody of the child to Mother, set Father’s shocking physical abuse was not supported by visitation and child support and released GAL sufficient evidence. The evidence clearly dem- from “further representation and/or obligation onstrates the infant was in the care of her father in this matter.” GAL filed this appeal on her at the time she suffered her right femur frac- own behalf claiming the court did not follow ture, which according to medical expert testi- the majority of her recommendations, specifi- mony, could only have occurred as a result of

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 405 physical abuse. The evidence additionally sup- dant/Appellee. Appeal from the District Court ports a finding of numerous bone fracture inju- of Oklahoma County, Oklahoma. Honorable ries arising from five separate instances of Carolyn R. Ricks, Trial Judge. Appellant (Young) abuse suffered by P.K.D. over the first ten seeks review of the trial court’s order granting weeks of her life. Dr. Ramji’s testimony includ- the motion to dismiss of Appellee (Chesa- ed his expert opinion that these injuries were peake) for failure to state a justiciable contro- extremely painful and at least one of the frac- versy in Young’s action for declaratory judg- tures in the infant’s leg could lead to permanent ment. We affirm, holding the mere allegation a disability. We find the uncontroverted medical property owner intends to violate restrictive expert testimony concerning the cause and covenants in the future fails to state an actual effects of the injuries constitutes competent evi- controversy, and in order to invoke the district dence of heinous and shocking physical abuse court’s subject matter jurisdiction to enforce and we therefore affirm the finding of deprived restrictive covenants in a declaratory judgment status. AFFIRMED. Opinion by Mitchell, C.J.; action, the plaintiff must allege the defendant Hansen, P.J., and Joplin, J., concur. has taken action in violation of the restrictive covenants such as applying for a building per- 106,344 — Jan R. Barrett, Petitioner, vs. City mit. AFFIRMED. Opinion by Hansen, P.J.; of Oklahoma City, own risk, and the Workers’ Mitchell, C.J., and Joplin, J., concur. Compensation Court, Respondents. Proceed- ing to Review an Order of a Three-Judge Panel Friday, February 6, 2009 of the Workers’ Compensation Court. Petition- 105,837 — In the Matter of the Estate of Jerry er (Claimant) seeks review of a Workers’ Com- Dale Smith, Deceased, Janice Jo Ellis and Allen pensation Court (WCC) order finding, among Craig Monroe, Appellants, vs. Robert Lee other things, she did not sustain a compensable Smith, Personal Representative of the Estate of injury to her cervical spine. Claimant alleged Jerry Dale Smith, Petitioner/Appellee. Appeal cumulative trauma injury to both hands and from the District Court of Alfalfa County, Okla- her right arm and shoulder as the result of homa. Honorable Loren E. Angle, Judge. Appel- repetitive duties including typing, writing, etc. lee (Smith) filed a Petition for Letters of Admin- while working as a “court clerk” for Respon- istration, which included a request for a judi- dent (Employer). She late amended her claim cial determination of the death of his brother, to include the cervical spine. She points out her Jerry Dale Smith, a request for a determination medical expert, Dr. B., opined her cervical of the heirs of the Decedent’s estate and spine injury necessitating spinal fusion was appointment of Smith as personal representa- work related. Employer’s medical expert, Dr. tive (PR) of his brother’s estate. This probate P., opined the major cause of Claimant’s cervi- matter was brought pursuant to 58 O.S. 2001 cal symptoms, leading to a two level cervical §941, which provides the district court with fusion, was a 1992 automobile accident, and jurisdiction and authority to declare a missing that her work activities were not the major person (missing for a continuous period of cause of her current symptoms. Although there seven years or more) legally dead and issue is conflicting expert medical evidence, the letters of administration upon the estate of weight and probative value of medical evi- such person. The Petition states that at the time dence is for the determination of the WCC, of his disappearance in 1988, Decedent was a which may accept or reject such evidence in resident of Kansas but had real property in whole or in part. There is competent evidence Alfalfa County. Appellants, Ellis and Monroe from which the WCC could conclude Claimant (Movants), joint owners of an estate pour autre failed to meet her burden of persuasion. There vie, a life estate based on the life of the alleged is also competent evidence to support a finding Decedent, filed a Motion to Dismiss the Peti- Claimant’s neck complaints were caused by tion for lack of subject matter jurisdiction, something other than her duties. SUSTAINED. improper venue and failure to state a claim Opinion by Hansen, P.J.; Mitchell, C.J., and upon which relief can be granted. Movants Joplin, J., concur. contend the alleged Decedent had previously 106,517 — Stanton L. Young, Plaintiff/Appel- conveyed his life estate property to their prede- lant, vs. Chesapeake Land Company, L.L.C., an cessor in interest, and owned no property in Oklahoma Limited Liability Company, Defen- Alfalfa County at the time the Petition was

406 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 filed. Movants contend because the alleged provides evidence beyond a reasonable doubt Decedent, an out-of-state resident, owned no that continued custody by Mother would result property in Alfalfa County, venue was improp- in serious emotional damage to Child. We er and there was no basis for the trial court to affirm, holding the trial court correctly instruct- exercise jurisdiction and appoint a PR. Mov- ed the jury as to the burden of proof and the ants concede that a determination of the death jury’s findings are supported by the requisite of Jerry Dale Smith will terminate their estate evidence. AFFIRMED. Opinion by Hansen, P.J.; in the subject property. The court did not enter Mitchell, C.J., and Joplin, J., concur. an order making a determination of death but (Division No. 4) did enter an interlocutory order appointing Thursday, January 29, 2009 Smith as PR. Movants appeal this order. The evidentiary hearing revealed no evidence Dece- 104,979 — Bob O. Parris, Plaintiff/Appellant, dent owned any property or property rights, v. Barney Limes, M.D., James Brinkworth, real or otherwise, in Alfalfa County. Decedent M.D., Shelby D. Barnes, M.D., Urology Associ- conveyed his life estate in the property in 1976 ates, Inc., and Saint Anthony Hospital, trade- and thus, did not possess a substantial prop- name for SSM Healthcare of Oklahoma, Inc., erty right “arising and enforceable in the juris- Defendants/Appellees. Appeal from the Dis- diction” to support the appointment of a PR. trict Court of Oklahoma County, Hon. Patricia The order appointing Smith as PR is REVERSED G. Parrish, Trial Judge, granting dismissals or and this case is REMANDED FOR FURTHER summary judgment to Defendants in this med- PROCEEDINGS. Opinion by Mitchell, C.J.; ical malpractice action. Plaintiff substantially Hansen, P.J., and Joplin, J., concur. complied with the trial court’s order to name an expert, even though the expert stated he 106,353 — In the Matter of B.L., a deprived would not testify voluntarily. Furthermore, the child under eighteen years of age: Molly Lewis, doctrine of res ipsa loquitur applies. REVERSED Appellant, vs. State of Oklahoma, Appellee. AND REMANDED FOR FURTHER PRO- Appeal from the District Court of Tulsa Coun- CEEDINGS. Opinion from the Court of Civil ty, Oklahoma. Honorable Doris L. Fransein, Appeals, Division IV, by Gabbard, P.J.; Barnes, Trial Judge. Appellant (Mother) seeks review J., concurs, and Rapp, C.J., dissents. of the trial court’s order terminating her parental rights to B.L. (Child) based on a jury verdict. Friday, January 30, 2009 She contends the court erred in instructing the 106,233 — Larry Mills, Plaintiff/Appellee, v. jury in a case subject to the ICWA that the James E. McCoy and Alice M. McCoy, Defen- State’s burden of proof was clear and convinc- dants/Appellees, v. Marva Moore, Eunita ing evidence of the grounds for termination Spencer, Veatrice Dumas, Schebeverly Alexan- under 10 O.S.2001 §7006-1.1(A)(5) and (15). She der, Felicia Campbell, Gloria Harris, Nellie argues the trial court should have used the Davis, Barbie Woods, Jamie Woods, and Doug- OUJI for Juvenile Cases, which apply the rea- las Woods, Petitioners/Appellants. Appeal sonable doubt standard of the ICWA, 25 U.S.C. from Order of the District Court of Haskell §1912(f), to the state law requirements for ter- County, Hon. Brian C. Henderson, Trial Judge, mination of parental rights as well as to the denying a petition to vacate a quiet title judg- requirement under §1912(f) that continued cus- ment previously obtained by Plaintiff. The tody by the parent is likely to result in serious quiet title judgment entered in favor of Plain- emotional or physical damage to the child. We tiff in December 2003 is not void on the face of hold the trial court properly instructed the jury. the judgment roll, and it is undisputed that Mother also contends the State failed to meet its Petitioners did not file their petition to vacate burden of proof. This record provides clear and pursuant to 12 O.S.2001 § 1031(4) until Janu- convincing evidence Mother had not corrected ary 2007, well beyond the limitations period her neglect of Child or her failure to provide a for such actions set forth in 12 O.S.2001 § 1038. safe and stable environment for Child. It pro- The trial court properly denied the petition to vides clear and convincing evidence Child had vacate. AFFIRMED. Opinion from Court of been in foster care for more than fifteen of the Civil Appeals, Division IV, by Gabbard, P.J.; last twenty-two months. The testimony of the Barnes, J., concurs, and Rapp, C.J., concurs child welfare specialist for the Cherokee Nation specially.

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 407 Monday, February 2, 2009 credits were applied, but the forty-five percent of the back-in interest was not limited as to 103,496 (Consolidated with Nos. 104,272 and time or by revenue as opposed to a property 104,273) — James W. Trentz, Individual, and interest. Trentz also appeals the award of addi- Terrane Associates, Inc., Plaintiffs/Appellants, tional attorney fees for having prevailed in vs. Glen Rupe, Individual, Rupe Oil Company, their action to foreclose their attorneys’ liens. Inc., and Peter Paul Petroleum Company, Trentz does not dispute whether his former Defendants, and Bradley D. Brickell & Associ- attorneys are entitled to be compensated. A cli- ates, Ted W. Haxel and Mahaffey & Gore, P.C., ent has a right to discharge a lawyer at any Attorney-Lien Claimants/Appellees. Appeal time, with or without cause, but the client from an Order of the District Court of McClain remains subject to liability for compensation. County, Hon. Noah H. Ewing, Jr., Trial Judge. With reasonableness as the subjective criterion, The trial court defendant, Peter Paul Petroleum a discharged lawyer is entitled to be compen- Company (PPPC) appeals a trial court judg- sated for his or her services when discharged ment awarding the plaintiffs, James W. Trentz without cause and the compensation is based and Terrane Associates, Inc (collectively Trentz), upon quantum meruit and not the now non- attorney fees, costs, and an attorney fee as a existent attorney-client fee agreement. It was sanction. The trial court plaintiffs, Trentz, error to consider the M&G contingency con- appeal the award of attorney fees to Trentz’s tract as a relevant factor because the amount of former attorneys, the attorney lien claimants, compensation must be calculated using the Bradley D. Brickell & Associates (Brickell), Ted Burk standards and not what the parties may W. Haxel (Haxel), and Mahaffey & Gore, P.C. have previously agreed to. When the trial court (M&G). The trial court defendants, Glen Rupe is setting the compensatory fee, the end result and Rupe Oil Company, Inc. (collectively Rupe) must be a sum certain. Absent the setting of a appeal the trial court judgments in favor of sum certain, this reviewing Court cannot ascer- attorney-lien claimants Bradley D. Brickell & tain whether the amount awarded is excessive. Associates (Brickell), Ted W. Haxel (Haxel) and Here, the award to Trentz’s former attorneys Mahaffey & Gore, P.C. (M&G) where the attor- fails to meet the sum certain requirement. This ney-lien claimants were awarded attorney fees Court holds that Trentz’s former attorneys are against Rupe for the prosecution of their attor- entitled to ancillary attorney fees pursuant to ney fee claims against their former client, 42 O.S.2001, § 176 (lien foreclosure) and 12 O.S. Trentz. M&G appeals the trial court’s alloca- Supp. 2008, § 936 (labor and services). These tion of the fee awarded against Trentz between fees are to be calculated for each of Trentz’s M&G and Brickell/Haxel. The Trentz-PPPC attorneys in the same manner as the base fees dispute involved an equitable case for an under Burk and shall be for a sum certain. Rupe accounting. The dispute between Trentz and was exposed to three discrete liabilities for PPPC did not involve an open account. The attorney fees. The only one of these three trial court erred in awarding attorney fees. instances before this Court involves Rupe’s Trentz is entitled to costs “tailored to the equi- liability with Trentz for the ancillary attorney ties of the case.” The amount of costs to be fees and costs attributed to the action by M&G assessed on this basis is for the trial court to and Brickell to recover their fee against Trentz. determine initially as the appellate court does This Court holds that 5 O.S.2001, § 8, does not not make first instance fact determinations. provide for an award of an attorney fee to During the proceedings, the trial court issued attorneys who prevail against a party to an and clarified a discovery order. The court action, when that party is a settling party and found that a basis for sanctions existed. This not the client, or former client, of the attorney. Court finds that the trial court’s determination However, M&G and Brickell are entitled to is not against the clear weight of the evidence costs. The trial court allocated the net fee and, therefore, the precondition for the sanc- awarded based upon the attorneys’ representation was satisfied. Trentz appeals the trial court tion of Trentz. In light of this Court’s disposi- judgment awarding his prior attorneys, M&G, tion of the fee award and the directive to calcu- Brickell, and Haxel, forty-five percent of all late and award fees independently, the judg- properties, monies and rights recovered by ment allocating the fee must be vacated. Trentz from the litigation against Rupe. Certain IN CAUSE 104,272, THE JUDGMENT IS

408 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 REVERSED AS TO ATTORNEY FEES, Company, Defendant/Appellee. Appeal from REMANDED FOR RECONSIDERATION OF an Order of the District Court of Comanche COSTS, AND OTHERWISE AFFIRMED AS County, Hon. Keith B. Aycock, Trial Judge. The MODIFIED; IN CAUSE 103,496, THE JUDG- trial court plaintiff, Robert Teters (Teters), indi- MENT THAT IS APPEALED AS TO GLEN vidually and as Administrator of the Estate of RUPE AND RUPE OIL COMPANY, INC. IS Yolanda Teters, deceased, appeals a judgment REVERSED AS TO ANCILLARY ATTORNEY entered after a jury verdict in favor of the FEES AND REMANDED FOR RECONSIDER- defendant, Ford Motor Company (Ford). Teters ATION OF COSTS; IN CAUSE 103,496, THE has failed to demonstrate an error basis justify- JUDGMENT AS TO JAMES W. TRENTZ AND ing reversing the judgment and verdict based TERRANE ASSOCIATES, INC. IS AFFIRMED on a trial judge’s ruling amounting to an abuse IN PART, REVERSED IN PART, VACATED IN of discretion standard. Jury Instruction 20 did PART AND REMANDED FOR FURTHER not exclude from consideration a proper issue PROCEEDINGS; IN CAUSE 104,273, THE of the case. A judgment will not be disturbed JUDGMENT IS VACATED AND THE CAUSE on appeal by allegedly erroneous instructions REMANDED FOR FURTHER PROCEEDINGS. where as a whole they fairly present the law Opinion from Court of Civil Appeals, Division applicable to the issues raised by the pleadings IV, by Rapp, C.J.; Gabbard, P.J., and Barnes, J., and the evidence. Therefore the judgment is concur. affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gab- 105,420 — John H. McGath, Petitioner/ bard, P.J., and Fischer, J., concur. Appellee, vs. Diane E. McGath, Respondent/ Appellant. Appeal from an Order of the Dis- Wednesday, February 4, 2009 trict Court of Comanche County, Hon. Gerald 106,226 — Ward & Glass, LLP, Plaintiff/ Neuwirth, Trial Judge. The trial court respon- Appellee, vs. Kelly Hackworth Grant, Defen- dent, Diane E. McGath (Wife), appeals an dant/Appellant. Appeal from an Order of the Order Overruling, in part, her motion for new District Court of Cleveland County, Hon. trial entered after the Decree of Divorce in an Charles N. Gray, Trial Judge. The trial court action where John H. McGath (Husband) was defendant, Kelly Hackworth Grant (Grant), petitioner. Wife’s appeal presents three propo- appeals the trial court’s order granting sum- sitions. Wife maintains that the alimony award mary judgment to the law firm of Ward & was insufficient in light of her physical and Glass, LLP (WG). WG, a law firm, represented health condition, age, and length of time away Grant in connection with her discrimination from the workplace. Wife next asserts error in claims against her employer. It is undisputed certain aspects of the property division. Wife that the parties do not have a signed attorney- further asserts that Husband’s VEBA retire- client agreement concerning the fee. Mr. Glass, ment insurance policy was undervalued. Last, of WG, provided an affidavit in which he states Wife alleged that Husband paid his attorney that WG discovered, after a period of time, that fees from a joint account before dividing the the parties did not have a written fee agree- account. She sought to have her attorney fees ment. A written agreement was then sent to also paid from the account. Wife has the bur- Grant, prior to trial on either claim, specifying den to produce a record and to demonstrate a 40 percent contingency before trial and 50 error. She has failed to do so as to any of her percent contingency after trial. Grant did not contentions on appeal. In addition, she failed sign the agreement. According to Mr. Glass, the to raise her support alimony issue in her firm continued representation with the under- motion for new trial. Therefore, the trial court’s standing that this contingency fee was in Decree will not be disturbed and its ruling on accord with the parties’ agreements. Grant’s the motion for new trial are affirmed. affidavit asserts that she sought a reduced fee AFFIRMED. Opinion from Court of Civil arrangement in consideration of her work per- Appeals, Division IV, by Rapp, C.J.; Gabbard, sonally on the case preparation. She denied P.J., and Fischer, J., concur. any agreement to a 50 percent contingency 104,801 — Robert Teters, Individually and as arrangement and states that the fee agreement Administrator of the Estate of Yolanda Teters, was mailed only after she had performed a Deceased, Plaintiff/Appellant, vs. Ford Motor substantial amount of work on the case prepa-

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 409 ration. Glass’ affidavit recites that settlement the action. The record shows that Board’s deci- with the employer was explored at a pretrial sion to subject Plaintiff to discipline was nei- mediation. Glass then states that settlement ther unreasonable nor frivolous, and the trial negotiations occurred after the trial which court erred in holding otherwise. Its decision is resulted in a verdict. He states that Grant therefore REVERSED. Opinion from Court of demanded that WG accept a 70-30 split of set- Civil Appeals, Division IV, by Gabbard, P.J.; tlement, which WG declined. Mr. Glass does Rapp, J., concurs, and Fischer, J., concurs in concede that WG agreed to 60-40 split, as had result. been the proposal at the mediation. Grant’s Wednesday, February 11, 2009 affidavit asserts that Mr. Glass agreed to a 70- 30 split based upon the settlement figures and 105,502 — John M. Slotta and Rose Marie in consideration of the work done. The trial Slotta, Plaintiffs, vs. Ward Paxton, Jr.; John Pax- court granted WG summary judgment for the ton; Donald D. Dryden; Barbara J. Ryan; and 10 percent of the proceeds remaining undis- Vance and Grayce Morris Trust, Defendants, tributed. The only issue in this case is whether Castlerock Resources, Inc.; Gothic Production WG, acting through Mr. Glass, and Grant Corporation; Joseph O’Connor; Tularosa, Inc.; agreed to divide the settlement proceeds 70-30 Cordilia Ann Slotta; and Texas Firms, Inc., or 60-40. The record presents questions of fact Cross-Defendants/Appellants, vs. James regarding the agreement of the parties con- Franklin Renegar, Jr., James E. Dryden, and cerning division of the settlement proceeds. Brenda A. Wilkinson, Intervenors/Appellees. Moreover, the question is narrowed to whether Appeal from Order of the District Court of the division is 70-30, as argued by Grant, or 60- Pushmataha County, Hon. Lowell R. Burgess, 40, as asserted by WG. Under the standard of Jr., Trial Judge. The trial court correctly denied review, summary judgment cannot stand and it Appellants’ motion for summary judgment is reversed. REVERSEDAND REMANDED and instead found the undisputed material FOR FURTHER PROCEEDINGS. Opinion from facts compelled judgment in favor of Appel- Court of Civil Appeals, Division IV, by Rapp, lees. The reformation of the disputed 1999 and C.J.; Gabbard, P.J., and Barnes, J., concur. 2000 deeds is supported by the clear weight of Thursday, February 5, 2009 the evidence. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Barnes, J.; 104,169 — Darlene Whaley, Plaintiff/Appel- Rapp, C.J., and Gabbard, P.J., concur. lee, vs. Oklahoma Pardon and Parole Board, Defendant/Appellant, and Oklahoma Merit 105,533 — Karla Honeysuckle, and State of Protection Commission, Defendant. Appeal Oklahoma ex rel. Department of Human Ser- from Order of the District Court of Pottawato- vices, Plaintiffs/Appellees, vs. William Honey- mie County, Hon. Douglas L. Combs, Trial suckle, Defendant/ Appellant. Appeal from Judge. The trial court reversed the Oklahoma the District Court of Oklahoma County, Hon. Merit Protection Commission’s denial of attor- Barry L. Hafar, Trial Judge, affirming a child ney fees to Plaintiff, who prevailed in her dis- support administrative order finding that pute with her employer, the Oklahoma Pardon Father owed a substantial child support arrear- and Parole Board. Both 74 O.S.2001 § 840-6.8 age. Father’s evidence that Mother implicitly and the relevant Commission rule allow for agreed to waive support was disputed, and awards of attorney fees and costs “if the posi- resolved by the administrative law judge. tion of the nonprevailing party was without Father’s evidence of laches did not constitute reasonable basis or was frivolous.” The trial the prejudice necessary to support the defense. court’s determination that Board acted unrea- AFFIRMED. Opinion from Court of Civil sonably was based on Board’s abandonment of Appeals, Division IV, by Gabbard, P.J.; Fischer, approximately half of the allegations it asserted J., concurs, and Rapp, J., dissents. as grounds for terminating Plaintiff; however, Thursday, February 12, 2009 under the Commission’s rules it is clear that the term “position” refers to the nonprevailing 104,735 — Kimberly Blum Kennedy, Plain- party’s position with reference to the action as tiff/Appellant, vs. Timothy Edward Kennedy, a whole, and not to that party’s position as to a Defendant/Appellee. Appeal from Order of particular underlying allegation in support of the District Court of Comanche County, Hon.

410 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 Mark. R. Smith, Trial Judge. Wife seeks review Insurer from denying coverage because: (1) the of the district court’s partial denial of her injury occurred during the time Claimant’s motion to recover child support, medical and employer maintained a compensation liability daycare expenses. The record supports the dis- policy; (2) the employer paid premiums to trict court’s reduction of Husband’s child sup- Insurer for workers performing the same sort port obligation based on the doctrines of equi- of work Claimant performed; and (3) Claimant table estoppel and laches. Further, we affirm sustained an injury that occurred in and arose the district court’s denial of medical and day- out of his employment. While the Insurer care expenses due to Wife’s failure to provide asserts the policy involved did not cover the evidence in the record on appeal to demon- employer in Oklahoma, a claimant’s rights strate error on the part of the court. AFFIRMED. under the Workers’ Compensation Act are Opinion from Court of Civil Appeals, Division based on statute, rather than the contract IV, by Fischer, J.; Gabbard, P.J., and Rapp, J., between an employer and its insurer. VACAT- concur. ED AND REMANDED FOR FURTHER PRO- CEEDINGS. Opinion from the Court of Civil 106,439 — Rockford Road, L.L.C., Plaintiff/ Appeals, Division IV, by Gabbard, P.J.; Rapp, J., Appellant, v. David and Janis Finer; William V. and Fischer, J., concur. Hanks, Trustee of the Lorelei J. Hanks Trust; Henry and Katherine Haskell; Brent and Lucia ORDERS DENYING REHEARING Laughlin; Arlene B. Oliphant, Individually and (Division No. 1) as Trustee of the Arlene B. Oliphant Living Thursday, January 22, 2009 Trust; William and Patricia Southmayd; and 105,890 — Tri Mac Corporation and Ameri- Elizabeth Lorene Stambaugh, Defendants/ can Home Assurance, Petitioners, vs. David L. Appellees, and Clark and Michelle Wiens, Graves and The Workers’ Compensation Court, Defendants. Appeal from Order of the District Respondents. Petitioner’s Petition for Rehear- Court of Tulsa County, Hon. Michael J. Gassett, ing filed January 8, 2009 is DENIED. Trial Judge, granting summary judgment in favor of Defendants, property owners who Monday, February 2, 2009 sought to enforce a restrictive covenant prohib- 106,159 — M. Eddie Dillon, Petitioner, vs. iting Plaintiff from building two homes on a Sutton Tractor, Inc., Federated Mutual Insur- split lot in a housing addition. The undisputed ance, and The Workers’ Compensation Court, facts demonstrate that the restriction in ques- Respondents. Petitioner’s Petition for Rehear- tion, which provides that properties subject ing filed January 8, 2009 is DENIED. thereto “shall be used for single, one-family dwelling units only,” and that “only one family (Division No. 2) shall use and occupy each property,” was rea- Monday, January 26, 2009 sonable and enforceable, and thus is binding 104,700 — Carmen E. Gottschalk, Petitioner/ on Plaintiff. AFFIRMED. Opinion from Court Appellant, v. David A. Gottschalk, Respon- of Civil Appeals, Division IV, by Gabbard, P.J.; dent/Appellee. Appellant’s petition for rehear- Rapp, J., and Fischer, J., concur. ing regarding motion for attorney fees is Friday, February 13, 2009 DENIED. 105,977 — Stanley D. Quick, Petitioner, v. Friday, January 30, 2009 Deep Fork Wireless, Texas Mutual Insurance 105,648 — Tim Crawford, Plaintiff/Appel- Company, and The Workers’ Compensation lant, v. State of Oklahoma ex rel. Office of Juve- Court, Respondents. Proceeding to Review an nile Affairs and Richard DeLaughter, Defen- Order of the Workers’ Compensation Court, dants/Appellees. Appellant’s Petition for Hon. Ellen C. Edwards, Trial Judge, finding Rehearing is DENIED. that an insurance policy issued by Texas Mutu- al Insurance Company (Insurer) to Claimant’s Friday, February 13, 2009 employer does not cover the employer’s liabil- 106,094 — Shalonda and James Stone, Plain- ity to Claimant, and dismissing Insurer as a tiffs/Appellants, v. Linden Real Estate, Inc., party to this action. Oklahoma’s estoppel act, Defendant/Appellee. Appellee’s Petition for found at 85 O.S.2001 §§ 65.2 and 65.3, estops Rehearing is DENIED.

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412 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 OFFICE SPACE POSITIONS AVAILABLE

CENTRALLY LOCATED between Tulsa, Rogers, Mayes NORTHEAST OKLAHOMA REAL ESTATE ATTOR- and Wagoner counties, beautiful new office space for NEY: Logan & Lowry, LLP, a 13 attorney AV Rated rent. Receptionist, phone, copier, fax, conference room, Law Firm, is seeking an experienced real estate attor- and Internet. Call (918) 379-0022 or come by 2701 North ney. Duties would include abstract examination and Old Highway 66, Catoosa. quiet title work. This full-time position is a significant opportunity for a motivated candidate. Firm’s clients LUXURY OFFICE SPACE - FOUR OFFICES: One exec- are widely diversified, including significant institu- utive corner suite with fireplace ($1,200.00/month); one tional clients, estates, trusts and start up-businesses. large office ($850.00/month); and two small offices Salary commensurate with experience. Send reply in ($650.00 each/month). All offices have crown molding confidence to Box “U,” Oklahoma Bar Association, and beautiful finishes. A fully furnished reception area, P.O. Box 53036, Oklahoma City, OK 73152. conference room, and complete kitchen are included, as well as a receptionist, high-speed internet, fax, cable NELSON ROSELIUS TERRY O’HARA & MORTON television and free parking. Completely secure. Presti- is seeking an attorney with 1-4 years experience in gious location at the entrance of Esperanza located at civil trial practice, insurance litigation and insurance 153rd and North May, one mile north of the Kilpatrick coverage. Submit resume, cover letter and writing Turnpike and one mile east of the Hefner Parkway. sample to Derrick DeWitt at P.O. Box 138800, Okla- Contact Gregg Renegar at (405) 285-8118. homa City, OK 73113. PROMINENT AV-RATED DOWNTOWN OKLAHO- POSITIONS AVAILABLE MA CITY LAW FIRM seeks attorney with 1-5 years of tax/estate planning experience. Requires excellent LEGAL SECRETARY/PARALEGAL: Working for Rich- people skills to work for high net worth clientele. ard Ogden of Mulinix Ogden Hall Andrews & Ludlam. Must have impeccable academic credentials. Com- Must have at least two years experience working in liti- pensation is commensurate with the position. Please gation, Commercial and Creditor Bankruptcy prefera- send resume with list of references to “Box R,” Okla- ble. Must know how to electronically file. Must be able homa Bar Association, P.O. Box 53036, Oklahoma to multi-task and be organized. Job duties include tran- City, OK 73152. scription, preparation of draft pleadings, billing (Tabs software), keeping track of accounts on Quicken and AV RATED NORTHWEST OKLAHOMA CITY FIRM miscellaneous matters. You will be working for Mr. Og- seeking outstanding associate for busy litigation sec- den and two associate attorneys. An assistant secretary tion. Successful applicant must have three years experi- is available for internal filing, errands, copying and ence in private practice litigation, excellent academic light secretarial duties. Pay range: 30K to 35K depend- record and legal research and writing skills. Send re- ing on experience, plus medical insurance and parking. sume, references and writing sample to “Box Y,” Okla- Position available immediately for training. Interviews homa Bar Association, P.O. Box 53036, Oklahoma City, will begin with receipt of resumes. E-mail resumes to OK 73152. [email protected]. For more information about the firm go to www.lawokc.com. THE LAW FIRM OF HOLDEN CARR & SKEENS seeks experienced litigators for the firm’s Oklahoma City and SOCIAL SECURITY DISABILITY ATTORNEY needed Tulsa offices. Holden Carr & Skeens is an insurance de- for busy multi-state plaintiffs’ practice. Must be able to fense firm with a broad client base and a strong pres- handle volume case load. Experience with criminal law ence in Oklahoma. The firm seeks attorneys with 10 and/or estate planning a plus. Compensation com- years of experience or more in litigation and, in particu- mensurate with experience. Send replies to Box “O,” lar, jury trial practice. Proven track record in business Oklahoma Bar Association, P.O. Box 53036, Oklahoma development is preferred. The firm strives to be the best City, OK 73152. and requests nothing less from its members, therefore strong academic credentials and trial practice skills ASSOCIATE ATTORNEY: The firm of Conner & are required. Salary is commensurate with experience. Winters, LLP is seeking an associate attorney with 2 Applications will be kept in the strictest confidence. – 6 years experience for its Oklahoma City office. Resumes and writing samples should be sent to Strong academic credentials and excellent writing [email protected]. skills required. Business litigation experience a plus. Competitive salary and benefits. Send resume, writ- RAINEY, ROSS, RICE & BINNS, AV-rated OKC firm is ing sample and transcript in confidence to “Box P,” seeking a litigation attorney with strong research and Oklahoma Bar Association, P.O. Box 53036, Oklaho- writing skills, and 3 + years experience. Send resume ma City, OK 73152 Direct inquiries to Conner & Win- and writing sample in confidence to: Office Manager, ters will not be accepted. Rainey, Ross, Rice & Binns, 735 First National Center West, Oklahoma City, Okla. 73101-2324.

Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 413 POSITIONS AVAILABLE POSITIONS AVAILABLE

NORTHEAST OKLAHOMA: 3 ATTORNEY AV RAT- PROMINENT AV-RATED DOWNTOWN OKLAHO- ED LAW FIRM is seeking Associate with 0 to 4 years of MA CITY LAW FIRM seeks attorney with 3-5 years of experience. Duties will include work in all areas of the mergers and acquisitions, corporate and securities law civil law practice. Salary commensurate with experi- experience. Must have strong academic credentials. ence. Send reply in confidence to Box “M,” Oklahoma Compensation is commensurate with the position and Bar Association, P.O. Box 53036, Oklahoma City, Okla- the applicant’s experience. Please send resume with list homa 73152. of references to Box “W,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. MCDANIEL, HIXON, LONGWELL & ACORD, PLLC seeks an associate with 2-3 yrs. experience who is eager THE OKLAHOMA INSURANCE DEPARTMENT to be a contributing member of a successful litigation has a job opening for an Attorney III. The salary team. Candidate must possess excellent research and range is $48K-$58K. Resumes will be accepted until writing skills, a proactive outlook and strong decision- 5 p.m., February 25, 2009. Submit resumes by email making abilities. Top 25% of graduating class preferred. [email protected] or fax (405) Compensation package commensurate with experience. 522-8969. To see a complete job description and require- Send resume, cover letter, class rank and writing sample ments go to www.ok.gov/oid. to [email protected] or fax to (918) 382-9200. SOUTHWEST OKLAHOMA AV RATED LAW FIRM MULINIX OGDEN HALL ANDREWS & LUDLAM, located one (1) hour from Oklahoma City and Norman PLLC., an AV Rated downtown Oklahoma City law in Anadarko, Caddo County Seat. Two (2) man firm firm, 19 attorneys, seeks a commercial and business liti- seeking a purchaser of law practice consisting of build- gation/corporate attorney with 1-3 years experience. ing and equipment. Great opportunity for young attor- Remuneration is structured as follows: Hourly at ney/attorneys. This is the oldest continuously operated $50.00/per hour (increasing with experience) for each law firm in Caddo County. Attorneys are looking for hour billed, payable on a monthly basis. The associate retirement. Please send reply in confidence to Box “G,” attorney will be allowed to keep 100% of revenue gen- Oklahoma Bar Association, P.O. Box 53036, Oklahoma erated from his or her own originations. The firm will City, OK 73152. assist in oversight of the associate’s files which he or she originates and will also assist the associate in client CLASSIFIED INFORMATION development. High motivation, high quality work, professionalism are key requirements for this position. CLASSIFIED RATES: One dollar per word per Please send law school transcript, writing sample and insertion. Minimum charge $35. Add $15 surcharge resume to Richard Ogden at 210 Park Ave., 3030 Okla- per issue for blind box advertisements to cover homa Tower, Oklahoma City, 73102 or email all docu- forwarding of replies. Blind box word count ments to [email protected]. For more information about must include “Box ____ , Oklahoma Bar the firm visit MartindaleHubbell.com or lawokc.com. Association, P.O. Box 53036, Oklahoma City, This position is available immediately. OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar. DOWNTOWN AV RATED LAW FIRM, business litiga- org for issue dates and Display Ad sizes and rates. tion practice, seeks experienced lawyer with portable practice for of counsel relationship. Send resume to Box DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in “B,” Oklahoma Bar Association, P.O. Box 53036, Okla- writing stating number of times to be published to: homa City, OK 73152. Jeff Kelton, Oklahoma Bar Association LEGAL ASSISTANT/SECRETARY FOR SMALL OKC P.O. Box 53036, Oklahoma City, OK 73152 DOWNTOWN OFFICE. Must be experienced with civ- E-mail: [email protected] il litigation. Must also be proficient in typing andW ord Publication and contents of any advertisement is not Perfect. Must have strong work ethic and must be self to be deemed an endorsement of the views expressed motivated. Competitive salary based on experience. therein, nor shall the publication of any advertisement Please email resumes to [email protected]. be considered an endorsement of the procedure or service involved. All placement notices must be clearly non-discriminatory.

414 The Oklahoma Bar Journal Vol. 80 — No. 5 — 2/21/2009 Vol. 80 — No. 5 — 2/21/2009 The Oklahoma Bar Journal 415 Oklahoma Bar Association Day at the Capitol March 17, 2009 11:00 - 11:10 Welcome - Jon Parsley, OBA President

11:10 - 11:30 Bills of Interest - Duchess Bartmess, Chair of Legislative Monitoring Committee

11:30 - 11:50 Civil Practice Update - Brad West, West Law Firm, Shawnee, Oklahoma

11:50 - 12:10 Break for lunch buffet

12:10 - 12:20 Uniform Laws and Commercial Law update, Fred Miller, Uniform Law Commissioner

12:20 - 12:30 Events of the Day, John Morris Williams, OBA Executive Director

12:30 - 1:00 Break

1:00 - 5:00 Members to go to capitol to visit with legislators

5:00 - 7:00 Legislative reception in Emerson Hall

RSVP for lunch appreciated. Contact Debbie Brink at [email protected]; (405) 416-7014; (800) 522-8065