Ellis v. State

establishing a manu- the burden of plaintiff negligence replace ELLIS, it Appellant,

facturer’s Marshall place duty not to unsafe manufacturer’s into the stream commerce. products Oklahoma, Appellee. STATE market safe duty A manufacturer’s No. F-86-676. (1) depend upon should not wheth- products buyer is a or industrial commercial er Appeals of Criminal of Oklahoma. opposed to an individual consumer user as (2) fortuity May the full ex- of whether 1992. or posed— danger tent of the unreasonable Rehearing Denied June 1992. i.e., property personal injury damage to or product than the defective itself—has other happened. that cause

actually Products just unexpected

sudden and accidents in the dangerous public to the when

as industrial user

hands a commercial or are in an individual they as those of Moreover, product consumer. defective it did not dangerous though even

is still potential its harm caus- reach full injury damage to other

ing personal or

property. case

The court’s characterization of this purely loss to the

as one economic conceptu-

product itself runs counter 402A,5 underpinnings of which are

al § protect public including

tended — or un- commercial industrial user—from my explanation For products.

safe views context,, slightly see different Mobile Country v. Town

Waggoner &

Homes, concurring in (Opala, Inc. V.C.J. dissenting part).6

part, (1) [Emphasis add- (2) applies with the tual relation seller.” rule stated in Subsection although ed.] (a) possible all care the seller exercised (Sec- pertinent Restatement 5. For the terms of product, preparation and sale of 402A, ond) supra 4. note § of Torts see V.C.J., Okl., (b) bought (Opala, or has not P.2d the user consumer 6. concurring part, dissenting part). product from into contrac- or entered Oyler, City,

Mac Oklahoma appellant. Gen., H. Henry, Atty. Robert Sandra D. Howard, Atty. Gen., Asst. City, Oklahoma appellee. OPINION JOHNSON, Judge: PROCEDURAL BACKGROUND Ellis, appellant, Marshall charged by information in the District Court of Wood- County, CRF-85-59, ward Case No. the crimes of Murder in the Degree, First I, Shooting Kill, Count with Intent to Count II, Kill, III, Assault with Intent to Count Delivery Unlawful Drug, a Controlled IV, Count and Possession of a sawed-off shotgun, Count V. January appellant

On entered a IV, guilty to Count Unlawful Deliv- ery Drug V, of a Controlled and Count Possession of a shotgun. sawed-off 18,1986, February appellant was sentenced (2) years imprisonment to two and a One ($1,000.00) Thousand Dollar fine on Count IV, (2) years imprisonment and two and a ($500.00) Five Hundred Dollar fine on imprisonment Count V. The terms of were concurrently. to be served January through February From 1986, appellant by jury was tried on Counts I, II jury and III. The returned verdicts of guilty II, I and recommending Counts punishments imprisonment fifty of life effecting “the death of William Ross Stew- jury returned respectively. The years, gun, by shooting him with a certain to- guilty on Count III. art of not a verdict Remington gauge “A Model .12 wit: Judgment and Immediately after shotgun sawed-off to 13¾" Serial 18, 1986, on Counts February Sentence V622480V, # with malice afore- ...” V, pleas his oral appellant entered IV and thought. jeopardy. The trial court over- of double this Court appellant’s motions and ruled charged ap- II Information Count for Writ of appellant’s Application declined Kill, Shooting with Intent to pellant with Mandamus, P- and/or Writ Prohibition alleging that he did “shoot one Mark A. 28, 86-122, Appellant was March 1986. on firearm, Chumley Reming- A with a to-wit: 1986, 28, as to Counts on March sentenced 870, gauge shotgun, Model .12 sawed- ton II, ordering the I with the trial court and V622480V, length, in Serial # off to 13¾" concurrently. run sentences to deadly weapon being same a loaded shot, gun powder and held in the with Court, this appeal taken to A direct was of said Defendant ...” hands 10, 1990, affirmed the con April on which opinion in unpublished in Case an victions III the Information Count of Cer- petition A writ No. F-86-676. Kill, appellant Assault with Intent to with States Su was filed United tiorari at one Jim alleging that he did “shoot Court, judgment preme which vacated firearm, to-wit: A Rem- Dempewolf with a this the case to and remanded 870, gauge shotgun, ington .12 Model light in further consideration length, in Serial to 13¾" sawed-off 2084, 508, Corbin, V622480V, being deadly the same # — U.S. —, (1990); L.Ed.2d 548 shot, gun powder and weapon with loaded 504, 112 L.Ed.2d 517. of said Defendant ...” held in the hands V, pled appellant to which Finally, Count FACTS possession guilty, charged Appellant with Agent William May O.S.B.I. alleging he did shotgun, that of sawed-off during killed an undercover Stewart was shot possession in a sawed-off “have his Woodward, operation in Oklahoma. drug in 18 inches less that gun with a barrel during the agent injured One other length, in and more 13A2d length, to-wit: to agents attempting were incident. The Remington Mod as a specifically described buy/bust trans- arrest Marcia Boston 870, gauge shotgun, Serial .12 el in passenger Ms. Boston was action. V622480V, # ...” During transac- appellant’s vehicle. shotgun, killing tion, appellant fired conviction Appellant submits wounding another Agent and possession Stewart of a sawed-off sentence for and trial, appellant 1985, admitted shoot- agent. 8, (specifically At May agents, other Agent 870, gauge pump and at the ing Stewart .12 Remington Model and Appellant length, claimed self-defense. Serial to 13¾" shotgun sawed-off testified that prosecu- witnesses V622480V), other defense the further # barred identify as a himself De- Agent Stewart did of First alleged offenses tion for approached he ve- Kill police Murder, Shooting officer when Intent to gree With Kill, Appellant claimed based each of hicle. Intent to and Assault reputation, Agent undercover and/or use alleged possession Stewart’s which pull gun 870, his Agent gauge Stewart shot- when he saw Model .12 Remington “a vehicle, thought appellant approach the 13¾" in Serial gun sawed-off appellant were about Specifically, he and Ms. Boston # V622480V.” I, II killed. of Counts ripped-off and/or claims that the by double III barred were ARGUMENT guilty to entered after he had shot- possession of sawed-off charge of charged ap- I of the Information Count shotgun is either or both Degree gun, since First Murder pellant with necessary essential or factor in the commis- nal act or transaction under two criminal I, sion of the felonies described Counts statutes whenever each statute does not II require proof and III. of a fact which the other does not.

After differentiating the Jeopar- Double Later, dy Vitale, analysis applicable in Illinois v. multiple punish- ment cases from 65 L.Ed.2d applicable succes- question presented prosecutions, sive we find that Grady v.

Corbin, was whether the 521 n. Double Jeopardy Clause of the Fifth 2093 n. Amendment 564 n. 12 prohibited the prose- State of Illinois from applicable is not to this case. cuting for involuntary manslaughter driver of an automobile involved in a fatal I. accident, previously who had been convict- prosecutions A. Successive failing speed ed for to reduce to avoid the Jeopardy Double Clause Supreme Illinois, embodies collision. The Court of protections: protects three It against analyzing a sec- after the elements of each of- prosecution ond fense, for the same offense after offense, held that because the lesser acquittal. protects against It failing a second speed, required to reduce proof no prosecution for the same beyond offense after con- that which necessary was for con- viction. protects against And it greater, viction of the involuntary man- punishments for the same offense. slaughter, North purposes ... of the Double Pearce, 711, 717, Carolina v. Clause, 395 U.S. Jeopardy 89 greater the by offense is 2072, 2076, (1969). 23 L.Ed.2d 656 definition the ‘same’ as the lesser offense included within it. the court found prosecutions Where successive in prosecution that the manslaughter was volved, the Jeopardy Double pro Clause by barred Jeopardy Double Clause. In tects the individual’s in having interest not affirming, Supreme United States gauntlet”, to twice “run the being in not suggested that even if two succes- subjected “embarrassment, expense and prosecutions sive by were not barred ordeal”, and in being compelled not “to live test, Blockburger prosecution the second continuing anxiety state of and inse prosecution would be barred if sought curity”, with “possibili enhancement of the to establish an essential element of the ty though that even may innocent he by second crime proving the conduct for guilty”. States, found Green v. United which the defendant was convicted 184, 187, 190, 221, 223, U.S. 78 S.Ct. prosecution. first 2 L.Ed.2d protect To this interest, Supreme Finally, Corbin, in Grady v. adopted has a factual-evidentiary approach, (1990), 110 S.Ct. 109 L.Ed.2d 548 Nielsen, In re 9 S.Ct. Supreme the United States Court held that (1889), L.Ed. 118 and appropriate, where Jeopardy the Double Clause bars a subse- estoppel approach, collateral quent prosecution if, Ashe v. Swen to establish an essen- son, 436, 448, 1189, 1196, tial element of an charged offense in that (1970)(Brennan, J., prosecution, government concur prove will con- ring). approaches Both of these look to the duct that constitutes an offense for which produced evidence at the first trial to deter the defendant already prosecuted. been mine if the same facts or issues will be In Grady, Corbin had driven his automo- proved at the second. yellow bile across the double high- line of a In way, striking v. United oncoming vehicles. 299, 304, 180, 182, hospital being L.Ed. While at the treated for his the United States injuries, Corbin was served with two uni- Court held that Double charged form traffic tickets. One ticket Clause of the Fifth prohibits Amendment him driving with the misdemeanor of while prosecutions successive for the same crimi- intoxicated and the other him with keep right already of the In the for which failing to median. the defendant has been meantime, occupants prosecuted. of the ve- one Id. at injuries emphasized hicles died from hit Corbin sus- 109 L.Ed.2d at 564. The Court accident. tained this an “actual is not evidence” or critical inquiry “same evidence” test. The 27, 1987, pleaded Corbin October prove, is what the State will conduct guilty to the two traffic tickets. Corbin prove evidence the State will use guilty pleas on No- sentenced repeated, conduct. The Court pre- Id. later, 17, 1987. Two months vember specific sentation of evidence one trial jury January grand investigat- prevent government does not forever Corbin, ing charging indicted the accident from introducing that same evidence manslaughter, him reckless second- subsequent proceeding. Id. manslaughter, degree crimi- vehicular homicide, nally negligent third-degree reck- Applying analysis, this driving less while assault intoxicated. initially Court found that the Blockburger prosecution of particulars filed bill did not test bar of the reckless negli- that identified the three reckless or manslaughter, criminally negligent homi- gent rely prove it would acts on which third-degree cide and reckless assault of- charges: (1) oper- and assault homicide However, by fenses. the Court found that ating public highway on a a motor vehicle pleadings particulars, its own in the bill condition, (2) failing in an intoxicated prove the State admitted that it would the median, keep driving right of the entirety of the conduct for which Corbin miles approximately per 45 to 50 hour driving had while been intoxi- convicted— rain, heavy speed too fast which failing keep right cated and of the medi- pend- the and road conditions then weather elements an—to essential of the establish ing. Thus, homicide offenses. the and assault Jeopardy Court found the Double Clause to dismiss the Corbin moved indictment prosecution subsequent the barred jeop- statutory on and constitutional double charges homicide unless the and assault ardy hearing,-the grounds. After a district rely proving conduct for State would not appeal, court motion. denied Corbin’s already been convicted. which Corbin had Appeals the York Court of New reversed. affirming Ap- In the New York Court prosecutions, successive whether Supreme peals, States the United Court conviction, following implicate acquittal or whether a subse- stated that to determine beyond those inher- double values quent barred Double prosecution is the cases. multiple punishment ent See Clause, Jeopardy apply a court must first 187, States, 184, Green United appli- If Blockburger the traditional test. 223, (1957). 221, that cation of that test reveals the offenses explained However, Supreme Court as statutory have elements or that identical bring can Grady, a State even when included one is a lesser offense against an individual un- charges other, cease, must inquiry then the der a tremendous additional Blockburger, is subsequent prosecution barred. is that defendant if he placed burden 2090, 516, at L.Ed.2d at at charges separate face must each of 561. independent proceeding. of these Because however, concerns, that Supreme Court stressed Supreme

The Court continued exclusively on the they have relied subsequent prosecution must finding that a vindicate Double Blockburger test to merely survive the Blockbur- do more than against multi- Jeopardy protection then Clause’s ger The Court held test. 495 U.S. at ple prosecutions. Grady, bars Jeopardy Double Clause subse- 2092, 109 L.Ed.2d at 563. 110 S.Ct. at quent govern- in which the prosecution multiple prosecution ment, These essential concerns element to establish adopt height- led prosecution, context the Court charged in that will an offense inquiry. ened constitutes prove an offense conduct Multiple punishments Hunter, B. In Missouri v. S.Ct. 74 L.Ed.2d 535 the United Different interests are involved when the Supreme States Court considered whether purely multiple punish- issue is one of and conviction aof criminal ments, complications without suc- single defendant in a charge trial on both a right prosecution. cessive to be free charge of “armed criminal action” and a proceedings simply from vexatious is not first-degree robbery, underlying felony, Court, According

present. Supreme Jeopardy violated the Double Clause of the possibility a defendant’s sole concern is the Fifth Amendment. The Court found that of an enhanced sentence. Grady, respect im- cumulative sentences stated, 2091. multi- “[I]n [the posed trial, in single Jeopardy the Double context, ple punishment] Jeop- the Double prevent Clause does no more than the sen- ardy prevent no than Clause does more tencing prescribing greater court pun- from sentencing prescribing greater court from legislature ishment than the punishment legislature than the intended.” intended. In Hunter, Id. the Missouri Court had construed the two statutes at issue as de- fact, In test was devel- addition, fining the same crime. In oped multiple punish- in the context of recognized legislature court in- imposed single prosecution. ments punishment tended that for violations of v. United Garrett the statutes be cumulative. The simply then noted that because two context, inAnd the Double may criminal pro- statutes be construed to prevent Clause does no more than scribe the same conduct under the Block- sentencing prescribing court from burger test does not mean that the Double greater punishment legislature than the precludes imposition, Clause Hunter, tended. Missouri v. trial, single in punishments a of cumulative 673, 678, 103 S.Ct. 74 L.Ed.2d 535 pursuant to those statutes. The (1983). Court con- The Blockburger simply test is a cluded, legislature specifically that where a statutory construction, rule guide of a to legislature punishment authorizes cumulative determine whether the intended under statutes, did, multiple punishments. Hunter, supra regardless as Missouri of 366, 103 at 678. proscribe whether those two statutes “same” conduct Blockburger, under determining The established test for statutory court’s task of construction is at sufficiently whether two offenses dis- prosecutor may an end and the seek and tinguishable permit imposition of may impose pun- the trial court cumulative punishment cumulative was stated in single ishment under such in statutes States, Blockburger v. United U.S. trial. 180, 182, 52 S.Ct. 76 L.Ed. 306: applicable The rule is that where the States, In Albernaz v. United same act or transaction constitutes a vio- 333, (1981), 67 L.Ed.2d 275 statutory provi- lation of two distinct Supreme Court addressed the issue sions, applied the test to be to determine cumulatively whether a defendant could be only whether there are two offenses or punished single conspiracy trial for provision requires one is whether each import conspiracy marihuana and to distrib- proof of a fact which the other does not. Applying Blockburger, ute marihuana. emphasizes This test the elements of the the Court concluded that the two statutes requires proof proscribe two crimes. If each of a did not the same offense in the not, provision requires proof fact that the other does of Blockbur- sense that each satisfied, notwithstanding Interesting- ger test is a sub- a fact that the other does not. overlap proof ly, stantial offered to es- the Court went further state that Ohio, the crimes. Brown test is a rule of tablish v. 432 because the construction, it statutory 53 L.Ed.2d 187 and because discerning congres- serves as a means of purpose, proof required by other, the rule should not be con- sional element of where, trolling legislature is a it example, may for there clear inferred that the contrary legislative separate application tended to authorize of indication of intent. each Conversely, proving statute. if viola- Woodward, Finally, in always proves tion of one statute a viola- (one tion another of statute is a lesser Court considered the another, i.e., of included offense it shares case wherein Woodward was indicted on another), all of its elements with then it charges making of a false statement to an appear legislature creating would was agency willfully of the United prosecution, only alternative bases for failing to report carrying he was single offense. $5,000.00 excess of into the United States. conduct, answering The same “no” to the judice II. case sub carrying question he was more whether find it We clear that this case con $5,000.00 country, than into the formed the only multiple cerns punishments. Appel count. The United basis each States lant was one information with Circuit, Ninth Appeals only counts. concern relying Blockburger, held that Wood- would be whether each count satisfied punished ward’s conduct could not be un- Blockburger test. false der both statutes because the state- O.S.1981, 1289.18(A), felony provides ment included Title lesser offense § any a sawed-off shall currency reporting of the misdemeanor. mean reversed, capable discharging firearm a series of finding projectiles any may material which rea- Appeals plainly misapplied the Court of expected sonably be to be able to cause determining Blockburger rule for whether injury, lethal with a barrel or barrels less Congress permit intended cumulative than eighteen inches proof punishment and that of one offense using gunpowder, gas any either or means necessarily proof did not include propulsion. makes rocket Subsection C Finding other offense. no evidence that crime, license, it a absent a federal Congress separate did not intend to allow person possession to have under or punishment for the two different offenses shotgun, his immediate control a sawed-off the Court it held could not assume Thus, whether concealed or not. the Congress that was unaware that had it charge possession of a of sawed-off shot- permitting created different offenses gun require proof that a had person would multiple punishment for the same conduct. under his immediate possession his or Congress’ The that Court noted intent to a firearm a barrel or barrels control with punishment under allow both statutes was eighteen inches less that by shown the fact that the statutes were capable discharging projectiles which separate directed to evils. may reasonably expected to able to be Indeed, legislature where has the injury. lethal cause multiple punishment explicitly authorized O.S.1981, 701.7(A), provides Title § end, judicial is inquiry multiple at an murder in the first person commits proper, punishment is authorized and and degree unlawfully he and malice when with is Blockburger test irrelevant. Hunt aforethought the death of another causes er, supra. corollary necessary The Thus, charge being. of Murder human legislative focus on intent is that Block- Degree proof of require in the First would rule, burger is not a constitutional test by an death of a human caused unlawful merely of construction used to canon aforethought. malice the defendant with deciphering legislative in guide courts in O.S.1981, provides Title 21 tent. Whalen v. United § felony Shooting with person commits intentionally and Kill he underlying Blockburger The Intent when rationale requires any with kind of wrongfully is shoots another test if each statute firearm, any person. intent kill with CONCLUSION Thus, charge Shooting with Intent to Finding by the evidence used State require proof Kill would of an intentional present pass case to the Blockburger wrongful shooting and with a firearm at finding test and Grady inapplicable, is person another with the intent to take a appellant we find that the trial of did not human life. protection violate his Jeopardy. of Double Judgment and Sentence is AF- O.S.1981, 652, Finally, provides also § FIRMED. person felony that a commits the of As- Battery Deadly Weapon sault and with a LANE, P.J., concurs in result in which they any battery when commit assault and PARKS, J., joins. upon any deadly another means of LUMPKIN, V.P.J., specially concurs. weapon, byor such other means or force as BRETT, J., death, concurs. likely produce is inor manner Thus, attempts charge to kill another. LANE, Presiding Judge, concurring in Battery Deadly of Assault and with a result. Weapon require proof would of an assault agree majority I that the instant battery upon person and another with a However, matter should be affirmed. I do deadly weapon with the intent to take a Corbin, Grady believe that human life. any application at all In to this case. test, Applying Blockburger fo- which therein, Grady, upon and the cases relied necessary proof prove cuses on the separate prosecutions. there were two offense, statutory elements of each rather prosecuted defendant was first for drunk presented than on the actual evidence to be driving being left of center and entered trial, requires we find that each statute plea prior subsequent to the time the proof of an additional fact which the others charges were filed. We do not have that do not. the offenses not the In scenario. our situation all of the of- test, (empha- same under the charged prosecution by fenses are in one added) sis means on a count Information. Appellant separated himself out the count III. possession of the sawed-off he plea guilty when entered a to that We further find that is hot charge. Grady applies To hold that would applicable due to the fact it that was every allow defendant with more appellant separated action of the which out than one count to choose least count to possession the count on the of the sawed- guilty prevent prosecu- enter a pled guilty off when he to the remaining tion of all of the counts. charge. As the United States My application Grady view of the of to Johnson, Court stated in v. Ohio support this matter finds in Ohio v. John- 2536, 2542, 81 L.Ed.2d S.Ct. son, (1984), [appellant’s] “the efforts (1984). There, L.Ed.2d 425 Johnson was separate disposition of were directed to murder, charged aggravated robbery, counts in the same indictment no where involuntary manslaughter and theft. He charged more than one trial of the offenses pleas guilty entered of to the last Notwithstanding contemplated. was ever charges jeopardy and then claimed that acceptance [appellant’s] the trial court’s prosecution barred the of the first two. guilty pleas, [appellant] should not be enti though Court found that even tled to use the Double Clause as manslaughter charge was a lesser prevent complet a sword from State charge cluded offense of the murder ing prosecution remaining its on aggravated that theft a lesser of rob- charges.” bery precluded the State of Ohio was not prosecuting remaining charges by arising

from ecutions from the same acts. Too prohibition. In of a jeopardy lawyers the event often and courts fail to discern the remaining charges, conviction on appropriate rule of construction because would courts have to then face the Ohio they protec fail first determine which problems punishment, of double but the involved, is tion based on the facts of the guilty pleas are not a from further bar Thus, the analysis may case. be skewed prosecution. attempts analyze when are made to a suc prosecution cessive case based on caselaw A distinction was the Court made restrictions, defining multiple punishment charged is a defendant one instru- where opinion and vice versa. The in this than ment with more one count and where sought provide the bench and bar charge a defendant stands convicted of a compendium authority with a succinct prosecuted is later for other crimes detailing analysis which must take arising out of the incident. The same determining place applicable authori distinguished from Brown Johnson ty presented. based facts Ohio, v. principal case relied Grady. It is distinction the same I that would draw here: where single prosecution

counts are to one or more the counts does prosecution remaining further

not bar

counts, if a com- has been

pleted prior filing subsequent HONEYCUTT, Appellant,

charges principals of double John apply. principals Because established Oklahoma, Appellee. STATE any application do not have in this case, go I no reason exten- see into the No. F-88-521. against sive discussion of the rules succes- prosecutions. factual basis sive Without a Appeals of Court of Criminal Oklahoma. case, present por- for the issue May 20, 1992. opinion merely of the court’s dicta tion is precedential without value.

Therefore, I concur in result reached majority stated

by but for the reasons

herein.

LUMPKIN, Judge, Vice-Presiding concurring.

specially thorough compliment the its

I Court on regarding

analysis presented of the issues protections against dou

the constitutional join ren jeopardy and in the decision

ble of the decision is

dered. correctness States Su

reflected recent United decision in preme Court — —,

Felix, ap has also

L.Ed.2d 25 The Court noted of double

propriately issues analyzed must be based on wheth multiple punishments involves

er the case pros

in the same or successive

Case Details

Case Name: Ellis v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: May 20, 1992

Citation: 834 P.2d 985

Docket Number: F-86-676

Court Abbreviation: Okla. Crim. App.