Edwards v. State
815 P.2d 670
Okla. Crim. App.
1991
Check Treatment

*1 Country is in Indian commercial matters

limited. shop is licensed

Bruner smoke Tribe, of the Indian su principal chief operated by a member pervised and Tribe, comply required to with tribal have, nor The State does

ordinances. complete had commercial and has it ever jurisdiction over Indians and regulatory has offered their lands. The Commission support its contention no evidence cigarette retailers should be re Indian permits. quired state licenses and to obtain sovereignty from State protecting Tribal control, we hold that the jurisdiction and right does not have a lawful Commission permit its license and impose or enforce upon tribally licensed Indian requirements doing in Indian cigarette retailers business Country on behalf of the Tribe. reasonable that Indian retailers we think it register required to with the Commis Moe, 96 S.Ct. at sion. 1645. reasons, foregoing

For the the district court is A.FFIRMED IN PART AND REVERSED IN PART.

LAVENDER, SIMMS, KAUGER SUMMERS, JJ., concur.

OPALA, C.J., HODGES, V.C.J., and WILSON, JJ., and ALMA HARGRAVE part; part. dissent in concur EDWARDS, Jerry Appellant, Michael Oklahoma, Appellee. STATE No. F-86-857. Appeals Criminal Oklahoma.

July 1991.

OPINION

LANE, Vice-Presiding Judge: appellant, Jerry Edwards, The Michael by jury Robbery was tried for the crimes of (21 O.S.1981, 801) With Firearms and two § O.S.1981, Kidnapping (21 741), counts of § After Former Conviction of Two or More Court, Felonies Oklahoma District Case No. CRF-86-267. The defendant appeared se, pro jury the returned a verdict of guilty, jury and accord with the verdict appellant the trial court sentenced to nine- (99) ty-nine years imprisonment on each count with the the kidnapping sentences on counts to run concurrently. The state con- that the kidnapping cedes conviction on the charges violated the constitu- right process tional to due because the appellant under (to 741(3) slavery sell into or hold to § service) jury but the instructed by (secret 741(1) under trial court confine- § imprisonment) ment consequently or the two counts of must be re- Appellant versed. four raises additional address, arguments which we will that the kidnapping charges merged into charge robbery, thus armed conviction all of charges prohibition is barred jeopardy; court him pro- should have allowed se; prosecutorial misconduct; pro ceed bias. We affirm the robbery for firearms sentence after former conviction and reverse remand charges kidnapping. for trial the new year Sixty-eight old Thomas Watson and sixty year operate old Ola Dean Watson a cellophane plastic bag business out of City. garage their Oklahoma theOn 26,1985, evening they expect- of November pick up bags. ed a order of customer an appellant rang When the their Mr. doorbell him in Watson let and asked if he was reply appellant the customer. stuck gun struggle in Watson’s face. A short pulled ensued. then Wat- Gloyd McCoy, Deputy L. Appellate Pub- pocket son’s inside-out and caused the con- Defender, Norman, lic appellant. tents, teeth, money and to fall out. his false Robert Henry, Atty. Appellant H. State took Mrs. money. Gen. Watson Howard, Atty. Gen., Sandra D. Asst. Okla- the room and the stuck entered City, appellee. gun up against ap- homa her stomach. (1 branch) Madison, 2 L.Ed. tape. duet them with pellant bound then jeopardy clause of to show The double Mrs. Watson forced precludes She Amendment a second home safe was located. him where the reviewing Mr. Watson did, open it. court finds but she could trial once try. only third and the opened legally it on the insufficient evidence *3 property personal loaded the Watson’s is a direction of a just remedy then available and left. The Wat- Mrs. Watson’s car acquittal. into Burks v. United judgment of they 2141, themselves and 1, 18, to free States, son’s were able 437 U.S. 98 S.Ct. police. (1978). 2150-51, called the L.Ed.2d 1 Id. 57 underlying reasoning is based on the This the conviction The State concedes problem fundamental that the re conclusion kidnapping must be on the counts of into information is transformed remand a defective that the Court urges versed following evidentiary insufficiency the au an trial under counts for new these pro 1067 which thority of 22 § Supreme the United States vides: in a different conclusion reached Court appears that the defendant ... it Hall, 400, 107 S.Ct. [I]f v. 481 U.S. Montana although defectively guilty of an offense 1825, (1987). In that 95 L.Ed.2d indictment, the charged in the [Court appeal of held that the successful the court prison- the Appeals] must direct Criminal ground than the any other to delivered over er to be returned and support to the insufficiency of the evidence proper county, there to jailer the Jeopar- trigger the Double verdict does not court in which he the order of the abide of the federal constitution dy Clause convicted. po- charge in the Information an incorrect prosecution on a jeopardy to further appellant argues on double ses no bar charges charge. must dis- grounds the be related that missed. originally the Hall federal both the state and Under step sexual assault of his charged with certain circum retrial under constitutions hearing preliminary the daughter and at prohibition against by the stances is barred and tried the Information State amended II, 21; art. jeopardy. Okla.Const. double § following his appeal him for incest. On Const, Jeopardy attaches amend. V. appellant successfully ar the conviction overturned due a conviction must be when apply, for at gued incest statute did not the evidence, v. insufficiency of the Burks it did not include time of the crime 1, 2141, 437 U.S. 98 S.Ct. United by step-parent. Mon sexual assault (1978), successive and it bars L.Ed.2d jeopardy held had at Supreme tana charged in if offense the second trial Brown, supra the under tached because and fact as the trial is the same law be the trial for sexual assault would second first trial. Brown charged offense as the first trial for same in law and fact 2221, Ohio, 97 S.Ct. v. disagreed, incest. L.Ed.2d 187 finding why the State should “no reason put respondent to a trial in not be allowed to jeopardy We addressed this double charge of sexual assault. (Okl.Cr.1988). on the related Carter the evidence case, suggestion is no defendant was also There In that by holding to ser- charged introduced at trial insufficient 402, 107 respondent". of kid- 481 U.S. at against her will but convicted convict vice (emphasis at 208. at 356. napping by secret confinement. Id. 95 L.Ed.2d added). current time of the Court held Section find that at the We prohibition not allow the court to remand 1067 did constitutional state retrial, reasoning that such would violate that of is coextensive with jeopardy constitution, expressly the United States Constitution. the federal extent it is inconsist conflicting overrule Carter controls over The Constitution holding. ent with our statutory authority. bury Mar See deeply represented by public are concerned with the num- We defender and himself, represent of cases which come before us which wanted to judge ber the trial questioned been him on the record for some fif (15) wrong crime. While in some cases this regarding teen minutes this choice. particularly being be understandable due to After satisfied that facts, complex or the development knowingly voluntarily counsel, natural waived prepared of a case as it is it public more allowed the defender often than not to be the result of appears appellant during to remain with the trial to part respond questions. inattention or carelessness on the to his tactical Inciden tally, consulting the State. We must make clear that this we arrangement note this grant, Court will not and in this decision was of true benefit to the for the granted has not the State appointed carte blanche to trial court allowed in counsel to *4 repeated attempts who, terrogate juror make to convict an indi- a in the middle of offense, alleged vidual for an thereby might and revealed she know one of the embarrassment, subject him to the ex- witnesses and attended the same church as ordeal, pense, continuing and state of anxi- attorney. the district This Court has not ety insecurity brought by imposed laundry on succes- a list of factors which the prosecution; sive nor party will we be a to trial court accepting must address when a enhancing possibility though counsel, that even waiver of and we decline to do so may, through Rather, innocent a defendant re- now. we have held that the trial peated prosecution, guilty. be found See court must make a defendant aware of the problems Green v. United 78 self-representation, and must 2 L.Ed.2d establish record that the defendant understands that his in proceeding actions appellant raises a second double may without counsel be to his ultimate jeopardy argument, may that he not be State, detriment. See Johnson v. 556 P.2d prosecuted kidnapping for both and rob (Okl. Cr.1976), State, Dunnum v. firearm, bery kidnapping with a for the (Okl.Cr.1982). P.2d 613 On the record be merges robbery. into the crime of Our appellant fore us find that the we was both State, recent case Turner v. 786 P.2d 1251 problems self-representa aware of (Okl.Cr.1990) dispositive argu of this tion, proceeding pro and understood that se Therein, explained ment. we that when the possibly to his ultimate detriment. act same or transaction constitutes a viola statutory provisions, tion of two appellant object distinct At trial the did not applied by prosecutor the test to be to determine whether to comments made which one, only argues there are two offenses or is he now constitute misconduct. provision requires proof Having lodge timely objection, whether each failed to an additional fact which other does not. has waived all but fundamen State, statutory provision Id. at 1253. If each tal error. Harris v. 777 P.2d 1359 requires (Okl.Cr.1989); Quilliams State, proof of a fact that the other does 779 P.2d not, satisfied, (Okl.Cr.1989); notwithstanding State, this test is Hunt v. (Okl.Cr.1990). overlap proof substantial in the offered to We have all reviewed to, objected establish the crimes. Id. In the the comments now as well as robbery whole, case the crimes of the record as a and find that the required proof interject with a firearm each of ele comments did not fundamental un separate proof ments and distinct from the into the fairness trial. We find See, error, required reject for the crime. 22 no argu other fundamental this 741 and 801. We find no dou ment. §§ jeopardy problem here. ble proposition As his final argues

Appellant argues by next the trial the trial court erred failing grant allowing proceed pro erred in him to a mistrial when one of the jurors immedi revealed she attended se. When the announced the same prosecutor, ately prior may to trial that he did not want to church as the have profession stated that neither the fact that she in her of the victims treated one victim, juror This stated have treated the or that the district capacity as a nurse. al facts that these would went to her church affected her unequivocally appel in this case. The judgment, her decision and she believed she could re- affect disregard juror’s state urges us to impartial. Appellant lant moved for a main position presume prejudice. This ment and which denied mistrial law. This supported by Oklahoma is not court. consistently that when an Court has held readily distinguishable This case is from appellant requests a new trial based required which have reversal on the cases misconduct, appellant bears the juror juror knowingly did not this issue. showing juror prejudice burden of both during any conceal relevant information juror’s service. See harm as a result voir dire. She came forward as soon as (Okl.Cr. State, 370 P.2d 567 Wagers v. conflict, possible she was aware of a 1962); (Okl. 597 P.2d 340 Johnson she sure her she stated that Cr.1979). showing appellant makes no would not be biased. Her contact with the of actual harm. remote, victim was so that she was directs our attention to him, positive she had treated and she was in which we found the several cases quite spoken sure she had never with him. *5 juror for service and reversed for bias unfit Her contact with the district was judge after the trial denied a defendant’s vaguely recog- more remote. . even She These cases indicate motion for mistrial. wife, nized his but did not remember ever juror will be found where the bias seeing prior to trial. Under some set information which should juror conceals membership, of facts a church or common dire, during revealed voir or the have been treating a victim of a crime could well

juror prejudiced that he or she is due states bias, impermissible we do not cause but relationship given person.1 find that to be the case here. present In the D.M. came to We REVERSE and REMAND the counts and advised him that she kidnapping to the district court for new thought recognized she the hands of one of trial, finding no error which warrants day who had testified the be- victims reversal or modification of the might have treated him in her fore Firearms, Robbery for and sentence With professional capacity as a nurse. She also we AFFIRM this count. recognized stated that she a woman who previ- in the Courtroom on the PARKS, Presiding Judge, concurring in day, initially place could not how ous but part/dissenting part: night she knew her. In the middle of the my disagreement I first wish to voice pictured up

she woke the woman walk- majority’s treatment of ing up the church aisle for communion. argument. con- jeopardy second double It got directory, pic- her church found a She opinion to of this “that ture of the woman and she was tinues be writer discovered jeop- attorney trying to the district the ‘same transaction’ test for double married seeing ardy, skillfully explained by Justice case. She did not remember ever as 436, Swenson, attorney, having any person- or Brennen in Ashe v. 397 U.S. the district 448, 1189, 1197, 25 L.Ed.2d 469 emphatically al contact with his wife. D.M. 90 S.Ct. State, (Okl.Cr. deputy try Enriquez v. P.2d 1204 mother-in-law of a sheriff who 1. See 1987) (juror against ing gain employment bias with the District Attor admits alibi witness trial, forged ney's Office at the time of and who ob who is her husband’s ex-wife and who daughter recently against juror’s served the and that her check which husband cashed crime; engaged been the victim of a sex Tibbetts bank account and with whom husband had child); year girl tried for a twelve old in an extra-marital affair and fathered a State, her); (Okl.Cr.1987) (juror committing sex crimes Manu Bass v. 733 P.2d 1340 State, (Okl.Cr.1975) (venire important P.2d 233 conceals fact that State’s witness was el v. fiance); fact he is married to the chief his sister's Tibbetts v. 698 P.2d man conceals secretary (Okl.Cr.1985) Attorney). (juror District fact she is the of the conceals correct, ently finds that the reversal in (1970), and affords the this case is eminently interpretation of both proper upon a defective information1 and based to the U.S. Constitution Amendment insufficiency presented of the evidence 2, 21 of the Oklahoma Con- article section majority’s at trial. I find that the reliance Lamm, ex rel. stitution.” Stohler v. State Hall, 400, upon 481 U.S. Montana (Parks, 1038, (Okl.Cr.1985) 1825, (1987), 95 L.Ed.2d 354 is mis- However, P.J., dissenting). yield my I view placed may easily and that such case this to that of the distinguished from the case at bar. Accordingly, I must decisis. basis stare appellant’s con- affirmance of concur The defendant Hall was Robbery With a Firearm. viction by convicted of incest. As stated the ma- jority, appellant’s first double Hall’s conviction was not reversed respect With agree I the kid- jeopardy argument, insufficiency of because of the evidence to reversed, I napping convictions must be but incest, prove the crime of because in- but respectfully remanding dissent to the same by cest its definition at the time of trial did trial. for new Burks United apply to the defendant. Stated other- 57 L.Ed.2d 1 98 S.Ct. wise, the crime of incest as was then de- (1978), distinguished be- by legally inapplicable fined statute was “evidentiary “trial error” and insuf- tween Indeed, to defendant Hall’s conduct. such ficiency” purposes jeopardy legal inapplicability required would have reviewing deter- claims. Where a court the dismissal of the State’s Information mines that a convicted defendant been properly had Hall raised such motion deprived fair trial on the of trial of a basis before that court remand the cause for due to new trial. a case reversed contrast, By “inapplicability” *6 must, evidentiary insufficiency under the charged present in the case crimes Jeopardy of Double Clause factual, legal. The reason for reversal Amendment, be dismissed. convictions for [Rjeversal for trial as distin- are because the State could not guished evidentiary insufficiency, from prove that held facts sufficient to does not constitute a decision to the ef- their his victims to service will. government fect that the has failed to allegation no that the Infor- Their has been such, implies prove its case. As it noth- charging appellant was defective mation so respect guilt ing with to the or innocence except it him any respect, Rather, determi- of the defendant. it is a wrong Again, a crime that crime. nation that a defendant has been convict- inapplicable to factually, legally, through judicial process ed which is utterly It is inconceiv- appellant’s conduct. defective in some fundamental re- spect. part ... that such a mistake able :

n [*] n n [*] [*] charging authority can fairly be considered type of information/indictment de- as the The same said when a defen- cannot be contemplated by fect dant’s conviction been overturned Rather, it deciding progeny. and its Burks proof due to a failure of at which in- presented my opinion State prosecution complain cannot prejudice, given for it has been one fair crimes prove evidence to sufficient opportunity proof it to offer whatever Although the district charged. could assemble. erroneously charged appellant with such 15-16, Id., at 2149-50. crimes, charging so the Information Accordingly, I defect. dissent was without overruling to arrive at its ulti- Carter conclusion, overruling of and to this appar- herein Carter mate Burks, S.Ct. at 2148. 437 U.S. at 1. A defective indictment has been cited example Supreme Court as an of "trial error.” appellants kid- to remand decision Court’s charges for new

napping CRUMLEY, Appellant, Curtis Gene Oklahoma, Appellee. STATE No. F-90-0638. Appeals of Criminal of Oklahoma.

July 1991. *7 Clark, Jr., Earl, Jr., R.

Joseph F. Leslie Tulsa, appellant. Gen., Henry, Atty. H. Steven S.

Robert Kerr, Gen., Atty. City, for Asst. Oklahoma appellee.