*1 Legis- sentence established the Oklahoma
lature. III, Proposition addressing
T 6 In claims of misconduct,
prosecutorial Appellant cites no any apparent support basis nor is his properly
conclusionthat the use of admitted closing argument
evidence in improp can be potentially prejudicial.
er or closing
argument proper place is the to discuss evi
dence that during has been admitted the trial that evidence to the instruction of given by
the law judge. the trial aWhile
conviction upon cannot be based character alone, see Malone v. 34, ¶ 8, admit
ted evidence closing argu can be used upon by
ment and relied in deter
mining a verdict. thorough
T7 After a review of the briefs record, I find certain comments made
during stage closing argument second particular
combined with facts the case remanding
warrant the case for resentenc-
ing.
Dallas Oklahoma, Appellee.
STATE of
No.F-2004-1005.
Court of Criminal Appeals of Oklahoma.
Dec. *2 Law, Attorney Hilfiger, at Musko-
Roger OK, trial. attorney appellant at gee, for Walters, Attorney, Asst. District James OK, attorneys the state at for Muskogee, trial. Walterscheid, Appellate Defense
Ricki J. Counsel, Norman, OK, attorney appellant for appeal. on Edmondson, Attorney General Drew W.A. Miller, Oklаhoma, Asst. Attor- B. Jennifer OK, General, attorneys City, ney Oklahoma appellee appeal. OPINION JOHNSON, Judge. A. by jury in Jay was tried
1 Dallas Seabolt County, Muskogee Case the District Court CF-2004-179, of Posses- and convicted Dangerous Substance sion of a Controlled Manufacture, After Former with Intent in viola- of Two or More Felonies Conviction 2-401(G). § 0.S8.8upp.2008, tion of 63 years imprison- at 45 punishment fixed H. Alford Thomas ment. The Honorable accordingly. From this sentenced Seabolt sentence, re- appeals. he We judgment verse. 3, 2004, police officer with
T2 March
On
Department
stopped
Muskogee Police
signal a left hand turn.
for failure to
Seabolt
and insur
produced a driver's license
Seabolt
reported the
The officer
ance verification.
dispatch, ran
license
traffic
Seabolt's
warning citation.1 The
began writing a
for a canine unit because
officer also called
recognized
appeared nervous and he
Seabolt
day
one he had seen earlier
the car as
activity.2 The
drug
suspected
house
pedestrian
seen
testified that he had
The officer
produced a valid license and insurance
1. Seabolt
-
drug
that was consistent
and vehicle traffic
Seabolt told the officer
on the car.
verification
days
activity
the seven
thе house sometime in
belonged
and the officer's
car
to his brother
officer did not
preceding Seabolt's arrest. The
it.
record check confirmed
activity
any drug
Seabolt's
while
observe
related
car was at the house.
plain
that,
record for
error. Cheatham v.
percep-
officer testified
other than his
¶
nervous,
427. To
tion that the driver
he did not
see,
anything
drugs
be entitled to
hear or smell
to indicate
plain
relief under the
error
doctrine,
were in the car. The
unit
prove
Seabolt must
canine
arrived
that an error
approximately
dog
25 minutes later and the
occurred,
obvious,
plain
that the error is
*3
alerted
on
car.
Seabolt's
The officers
and that
the error affected his substantial
searched the car and
a
found
suitcase con-
State,
rights. Hogan
19,
v.
2006 OK CR
¶
38,
taining
commonly
items
in methamphet-
907,
used
189P.3d
923.
special
investigation
amine labs. The
unit
reviewing
When
a trial court's
responded
officer who
to secure those items
ruling on a
suppress
motion to
evidence
testified that he believed
had been used
illegal
seizure,
based on an
search and
we
methamphetamine.
at least onee to cook
defer to
court's factual findings
Validity
stop
The
about the
the Search
and search unless those find
ings
clearly
State,
are
еrroneous.
Lee v.
T3 Seabolt claims the trial court
erred
¶41, 6,
1345,
1983 OK CR
661 P.2d
1349-50.
denying
suppress
uphold-
his motion to
and
The ultimate conclusion drawn from those
ing
argues
the search of his car. He
legal question
facts is a
we review de novo.3
officer did not have reasonable
articulable
The trial court
did not make
factual
suspicion to detain him the 25 minutes it took
findings
only
and noted
its conclusion that
drug dog
for the
to arrive and that his deten-
the search was
valid
its minute order.4
tion
scope
stop
exceeded the
of the traffic
making
ensuing
illegal.
search of his car
stop
16 A traffic
is a seizure under
$4
suppress
Seabolt moved to
the Fоurth Amendment. McGaughey v.
-
¶
State,
33, 24,
evidence of the search at
130,
the end of the
2001 OK CR
37 P.3d
136.
Preliminary Hearing.
magistrate
The
scope
asked
The
and duration of
a
such
seizure
the issue. must be
stop
parties
related to the
and must last no
on
submit briefs
Those briefs are not
longer
necessary
contained
the record.
than is
to effectuate the
stop's purpose.
Royer,
magistrate
Florida v.
460 U.S.
overruled
motion
Seabolt's
explanation
491, 500,
without
1319,1325,
and Seabolt did not re
108S.Ct.
75 L.E.d.2d229
objection
(1988);
new his
Ohio,
Terry
1, 20,
admission of the
v.
892 U.S.
88 S.Ct.
evidence at trial.
timely
(1968);
When a defendant
mitted,
committing
to commit
tion exceeded
or is about
1, ¶ 3,
the offi
Paul,
whether
justified.
We must
v.
State
crime. See
decide
890.
the deten
prolonging
justification for
cer's
totality of the
reasonable under
tion was
is whether
question presented
17 The
cireumstances.
Lunsford
seope of
exceeded
25 minute detention
¶ 11,
CROK
so,
if whether the
stop, and
initial traffic
prolong
suspicion to
reasonable
officer had
recently
Appeals
1 10 The Kansas Court
argues that
The State
detention.
Seabolt's
justified in
an officer
considered whether
suspi-
articulable
had reasonable
the officer
based
extending the detention of motorist
that the 25
the detention and
prolong
cion to
*4
and the
nervous behavior
on the driver's
dog
drug
to
spent waiting for the
minutes
minutes be
of the car
observation
officer's
Skelly v.
based on
arrive was reasonable
police
under
surveil
stop at a home
fore the
55,
length of this detention. a routine traffic officer saw Sea- trieving his license. The this was leads us to conclude drug suspected of car at a house he bolt's in a corre have resulted stop, which should activity. not and out He did observe The offi spondingly detention.5 abbreviated activity drug while associated with warning citation traffic he issued the cer should have so, there, he done expeditiously. Had parked nor did he to Seabolt car was Seabolt's no information The officer had prior to the see Seabolt. left the seene would have Seabolt occupant of the connecting Seabolt the canine unit. Without arrival of had not the officer conceded he why house and some reason in the record to show days. Under occupant in 30 to fill out the seen that 25 minutes to took the officer behavior alone trooper may request Court noted that nervous 6. This a "In a routine traffic - license, registration suspicion other be vehicle could a driver's did not create reasonable checks, necessary computer required papers, run State v. circumstances. considered with other warning U.S. v. or citation." and then issue ¶ n. 4. 3 n. Paul, Cir.2005). (10th Gregoire, 425 F.3d circumstances, these the officer average did have causes the citizen to loose faith in prolong judicial system. reasonable our the traffic stop. rights Seabolt's under the Fourth T8 To requires understand this view Amendment were violated as a matter of law historical look at development and the evidence from the search should appellate process. entire This has been done suppressed. remaining have been The evi- very scholarly fashion in the above cited dence, any, if support is insufficient reason, law review article. For that I will let conviction and Seabоlt's conviction must be the words of the article set out the historical reversed instructions to dismiss. Our perspective upon which this issue must be decision the search and seizure issue ren- addressed. ders moot Seabolt's other claims. T4 In discussing review, standards of article states range "standards from DECISION (substantial quantum evidence')", "point Judgment and Sentence of the ('de novo')", view "impression (clearly trial court is with Instruc- REVERSED 'arbitrary erroneous' and capricious')", 8.15, tions to DISMISS. Pursuant to Rule provides working "[the definition that Rules the Oklahoma Court Criminal standard review is the criterion Appeals, (2006), Title App. Ch. the which the decision of a lower tribunal will MANDATE is ORDERED upon issued dе- *5 by higher be measured tribunal to deter- livery filing of this decision. propriety". Id., mine its correctness or at added). (emphasis 14-15 CHAPEL, P.J., JOHNSON, J., and C. T5 The "nothing article notes that that concur. could appeal be called an was LEWIS, J., early English known at in common law before concurs results. Id., equity its fusion with in 1875." LUMPKIN, V.P.J., dissents. process The at bring that time was to an LUMPKIN, Viece-PresidingJudge: entirely against "new action jury original Dissent. in the case." Id. "This so called quasi-criminal 'attaint' was a procedure. The respectfully I dissent to the Court's inquiry focus of the was on the decision- action in this opportunity case and take the makers' actions or inactions within the con- to аddress what I believe is an abuse of the effect, text of the trial." Id. In this was a de movo standard of develop- review. The trial on the trial. "The writ of error ulti- ment of of long standards review has a mately It, too, replaced the writ of attaint. history. Regrettably, many believe too entirely was considered an proceeding, new courts use the label de novo without under- rather than a previous continuation of a one." standing history and limitations on the Id. concept. "Some courts [seem to] invoke it talismanically process reviewing to authenticate T6 "The the rest of of a case itself opinion". Kunsch, their Kelly Standard was English first introduced into the of (State Federal): Primer, system by Review & Chancery A Seattle courts. This review (called appeal) an (Fall took the form of a trial de University L.Rev. Vol. 1994). complete taking movo with testimony Id., and other evidence." "Conceptu- T2 Let me make it clear that I believe ally, both the trial de novo and the writ of always courts authority have the to error were considered new suits rather than interpret However, the law. it existing Therefore, a continuation of suits. when respect courts fail to review; there was no standard of there was work especially of the trier of jury in a merely a proof burden of in a new case." Id. trial, and seek to substitute their own view facts that I believe system function initially provid- This is the goes astray. type It is judicial this of action which process ed the basis for the in respect erodes for the role adopting and American colonies. "In the Consti- to law tution, continued the common 'sub- government jury the federal are reviewed sanctity of the in evidence' test. cases stantial distinction between recognize the Furthermore, equity. justifi- jury in is the law and cases to Constitutional deference." recognized this enhanced Judiciary given Act of 1789 cation for Federal Id. vehicle appropriate of error as writ Thus, federal level. all cases at the review of by abolished of error was T10 The writ equity applied error by writ appeal "an was in Congress It was not to suits at law. as well as suits really was: a review recognized for what in appeal writs that review until 1803 case." rather than a new existing Id in courts." allowed federal equity was Id., treated it Federal Rules at 18. The new article further states:. 1 8 The as such. between primary differences One of the 52(a) tried 'In all actions Rule stated: ability two methods of review [flindings ... upon the facts without error, the writ review facts. Under clearly aside unless fact shall not be set subject to factual detеrminations were erroneous, regard given shall be and due fact as appeal, issues of review. Under of the trial court opportunity full subject of law were well as those credibility of the witnesses. judge of the equity in an made sense review. This by jury protect- Findings of fact were Id. equi- initially, all evidence court because Amendment and thus by the Seventh ed (via testimony interrog- cases, including ty only as had reviewed continued to be placed into the atory deposition), was The standard at common law. been open was not taken record. Evidence as found the facts common law was re- in cases at law. The court аs it was con- the court below were and stated in the exact same viewing court was thus of law contin- on review. Issues clusive determining the trial court position as (emphasis reviewed de movo. ued to be facts. *6 added). Id., at 19. time, equity practice in America de- Over review of policy the broad de movo parted analyzes from article also theoretically chancery. ancient While rules reasons for adherence of a equity cases was still that finality review in decision is type. The this novo, there had rehearing sys- trial de process and the important to the entire and often- up Id., finality helps certain well-settled grown This tem itself by equity principles parties observed congestion, reiterated ie. fewer court reduce considering findings of fact. Def- Id., points courts in 20. The article also appeal. findings of accorded to most erence was morale of trial importance of the out deference was a fact at the trial level. This the fact that morale would testimony allowing logical result of oral guessing deci- by constant second be eroded Ultimately, accept- ... it was equity trials a trier determined which have been sions findings, [reason], al- a rule that trial court perhaps, ed as "A one of fact. Id. better conclusive, weight great though not had of reversals on high proportion that a is 'great That court. in public with trial erodes confidence 'clearly errone- weight' was codified as the Id. courts." when the Federal ous' standard of Rule 52 deferring to group of reasons for A second adopted." were Rules of Procedure Civil helps specify decisions lower tribunal Id., at 17-18. accorded more should be which decisions reasons focus on These Rules of deference. T It should be noted the Federal 9 Typically, the stated ra- specific decision. provision have no similar Procedure Criminal to the decision 52(a). However, giving deference Supreme tionale the U.S. to Rule is that the decision- underly- of a lower tribunal said, "the considerations Court has position to make in a in maker was better full force a erimi- ing that rule ... A second ratio- Id., findings on the issue by a at 24. "Facts found nal context."
241 level, jury at the trial absent a finding that preserving nale for deference is the sancti- ty jury Jury trials. decisions have al- decision passion, was made under prejudice ways been considered sacred in American or the outside influence. See v. Thrasher State, jurisprudence. protect 850 parties Juries from biased, compliant, V.P.J., judges. (Lumpkin, results); or eccentric concur in Harris 97 Okla.Crim. given Unless their decisions are deference (1953). appellate stages, right jury at the To do otherwise neuters the actions judge jury of a one, and allows an trial empty protecting only will be an against judges, might trial who court to make render a decision feelings based on the ultimate determination. rather than applying weight and credit a trier of during fact does pro- their decision Id., at 20. pursuant cess to the instructions on the law 112 The meat of this issue falls to the they have received. In this the Court decided, characterization of what is to be i.e. says it deciding question novo, is of law de law, question of issue of or a "mixed however is the fact stop that the for twen- issue of guise law and fact." It is under the ty-five minutes is unreasonable that is the characterization, of this appel- last which was basis for the decision. The trial court deter- created, late believe much mis- stop period mined the of detention was system. chief occurs in By merely using Therefore, reasonable. what the Court is label "mixed issue of law and fact" doing substituting analysis is its of the facts some courts seem to believe can violate for the trial court. Reasonableness of the applying established rules of the facts as resulting time of the detention frоm a retry determined the trier of fact and question vary a fact that will from case to in case their own minds. The Seventh case. Amendment to the U.S. Constitution reveals 1I14 I recognized what believe Justice Founding thought Fathers Scalia about this problem in prospect; law, this his dissent "[iln Suits at common Ornelas v. United States, U.S. S.Ct. controversy where the value in shall exceed (1996) dollars, twenty by jury L.Ed.2d where he shall stated part: preserved, be and no fact tried shall be otherwise re-examined today The Court decides that a district States, according Court of the United than court's determinations whether there was rules of the common law." U.S. justify cause to a warrantless added). (emphasis Const. amend. VII As search *7 suspicion and reasonable to make previously, stated the standard at common investigatory stop an should be reviewed law was that the facts as found and stated de movo. past We have the reviewed the court below were conclusive on review. questions some mixed of law fact and on a Regrettably, some courts use the mixed basis, de movo and on a others deferential question of law and facts label aas back door basis, depending upon essentially practical entry disregarding into the decisions of the Because, considerations. respect with trier of fact. here, questions the purpose issue the of fact, extremely the determination and its process 113 I believe that is being bound nature will cause de novo review to
used in this case. Each of the triers of relatively benefit, my have little it is in judge i.e. the on suppress the motion to and require view unwise to appeals courts of guilt, have made a reasoned searching inquiry undertake the that stan- decision interpretation based on their requires. judg- dard I affirm would presented, as and reasonable ment of Appeals. the Court of interpretation of those decisions would find that there was no abuse of recognizes, discretion As the Court determinations of interpretation of that probable evidence. believe suspicion cause and reasonable that questions even under the label of two-step process. First, mixed involve a a court appellate of law and fact an identify court is bound to must all of the relevant historical facts known to the officer at the time of apply the facts as determined court, A second, at 2454: district search; 110 S.Ct. it must and stop or ... objec- litigants and whether, with the issues of "[flamiliar under standard decide appeals court of situated than the is better reasonableness, give those facts would tive justifying suspicion facts and pertinent a reasonable rise to to marshal legal fact-dependent standard...." search. cause to probable ante, this second Because Moreover, acknowledges, as the Court objective application of step requires "probable suspicion" and "reasonable facts, it is to the legal standard "commonsense, nontechnical cause" are question of law as a mixed characterized factual with '"the conceptions that deal ante, 1662; ... fact. See and everyday practical considerations ques- labeling "mixed Merely the issues men, prudent reasonable life on which '" however, that tions," does not establish Ante, technicians, legal act." not it is de novo review. While receive such common- a trial court makes Where "accepi[t] appellate courts settled well totality on the determinations based sense 'clearly errone- findings of fact that are cirenmstances, ordinarily accorded is novo," ous$' questions of law de decid[e] con- said a case What we deference. to mixed rigid respect with is no rule there pay- certain cerning question whether have said that "deferential questions. We in- "gift" exсludable from ments were law and fact questions mixed review of Revenue Code under the Internal come that the dis- appears when it is warranted pertinent here. equally than the positioned trict court is 'better presented in these of the issue "Decision ques- issue in court to decide the ultimately on the must be based cases serutiny will probing tion or that fact-finding tribunal's ex- application of the clarity of doe- not contribute mainsprings of human perience with the trine." totality of the facts each conduct in favor that counsel primary factors += nature of the The nontechnical case. ques mixed review of somе of deferential standard, relationship of it to the the close of the dis fact-expertise law and tions of experience, and practical human data of law-clarifying value and lack of trict court multiplicity relevant factual ele- ordinarily appellate decision-are in the combinations, ments, their various respect to determinations present with necessity ascribing creating the cause. reasonable each, in our force to confirm us proper bearing upon de details those The factual primary weight in this area conclusion (even are often numerous and terminations given to the conclusions of must be police uncontroverted supported when fact." trier of subject credibility testimony) determina factor counsel respect to the second With court never has the An tions. review, level of ing in favor of deferential intimate fa the district court's benefit of law-clarifying in the deci value miliarity details of the case-nor with the generaliza requires sion: Law clarification hearing of the live full of its benefit *8 tion, issues lend themselves and some makes testimony, the district court unless than others. generalization much more "totality of the specific findings on the Underwood, Thus, 487 in Pierce v. U.S. stop or bearing uрon the cireumstances" 2541, 2548-49, 562, 552, 101 108 S.Ct. recognized in & Gell As we Cooter search. (1988), for principal a basis L.Ed.2d 490 384, 110 S.Ct. Corp., 496 U.S. v. Hartmarx stan applying an abuse-of-discretion our (1990), 2447, a case hold L.Ed.2d 359 110 court's determination to a district dard (abuse-of-discretion) ing that deferential litigating position that the United States' district applied to a review should be "substantially justified" within the was 11 Rules of Procedure court's Federal Civil meaning Equal of Access to Justice attorney an did not con that determination 2412(d), Act, § that was 28 U.S.C. inquiry or entertain duct a reasonable and novel question was "a multifarious non- regarding the "substantiated belief" id., susceptible, for the time question, little complaint, see at frivolousness
243 superior familiarity with the facts that it least, being generalization." at of useful aside, Probable cause and reasonable has cast suggests the Court that an similarly determinations are resistant appellate give weight" court should "due generalization. recognizes, As the Court finding a trial court's that an officer's in " concepts," readily, these are "fluid 'not or (i.e., of wrongdoing ference his assessment usefully, search) legal even reduced to a neat set of of cause to was reason rules'"; Ante, and "because the mosaic which is able. at 1663. The Court cannot ways. have it finding analyzed for both This reasonable-suspicion of "rea or multifaceted, precisely probable-cause inquiry is sonableness" is what it has told 'one The Court maintains that determination will seldom be a useful U.S. "precedent" at 1662 218] (quoting at 282,238, 11, for another.'" Ilinois v. n. 11 n. [76 Gates, 108 L.Ed.2d Ante, there S.Ct. supra, at will be 527]). [2317] 1661, [462 movo; the last us the contradictory. due" to opinion seems to me a trial court's appellate analysis, in de novo court must therefore, review, finding only the Court's is zero. wrong review de "weight In exceptions to fact-patterns this-that will 700-705, U.S. S.Ct. 1664-1666 themselves, occasionally repeat so (certain omitted). citations prior de novo pro decision will T 15 I do not believe Justice Scalia went guidance vide useful in a similar case. enough far in analyzing the historical basis Ante, that, dispute I do not often, for these rules. Too as but I why do not understand we should lawyers, just we overlook the obvious be exception allow the to frame the rule. cause we have become accustomed to ad Here, in City, as Anderson v. Bessemer dressing particular matters in a way. On 564, 574-5745, 1504, 470 U.S. 105 S.Ct. if this issue prohibited court is 1511-12, (1985), "[dJuplica L.Ed.2d 518 from retrying the question facts when it is a judge's tion of the trial in the court efforts presented, fact that has been to be consis appeals very likely would contribute tent pro court shоuld still be only negligibly accuracy of fact de retrying hibited from the facts when an issue huge termination at a in cost diversion of of law is intertwined with those facts. The judicial resources.". in should both interpret instances apply the law to those facts as determined present an additional factor showing absent a of abuse counseling against de novo review must be discretion, clearly i.e. the test. erroneous prime mentioned: The benefit of de novo State, Hogan 19, 2006 OK CR is, criminal cases 907, (Lumpkin, 951-52 V.P.J. concur in re course, prevent justice a miscarriage of sults); State, Blonner v. might result permitting from the ver- V.P.J., P.3d (Lumpkin, 1144-46 concur guilty dict upon to rest deter- part/dissent State, part); Pickens v. single judge. minations of a But the issue 2005OK CR 126 (Lump P.3d 621-25 probable-cause in these and reasonable- kin, V.P.J., dissenting); Lambert v. suspicion cases is not innocence but deter- (Lumpkin, police rence of unlawful conduct. That dissenting). V.P.J. deterrence will not be at all if lessened the 116 Here the trier fact determined the determination, judge's wrong, facts, supported by was delay subjected only deferential review. reasonable, dog provided proba- and the
ble applying cause the search. Instead *9 Finally, I must observe that Court those facts as found the trier of this appear does not to courage have the of its Court wants stopwatch to stаrt their apparent conclusions. In an effort to re- delay determine at which minute of the unproductive duce today's words, burden deci- became unreasonable. other courts, imposes upon sion appellate per- court far removed from the time haps salvage to some of court's decision, place original of the in an eso- our question mood, average citizen to over- cause the seeks philosophical teric and dam- create self inflicted judicial system and and sub- of the fact finder the decision look process. system and its respect for the age the trial cоurt for that of its wisdom stitute type to that jury. agree I cannot judge and I believe the 19 In this authority given to us. arbitrary use of that are reasonable decisions rendered before, type of conduct this I have written As I affirm would supported the evidence. analysis Justice of Chief corresponds to judgment and sentence. equates Corrigan which Maura Plato's kings of philosopher the ideal state. treatise on Republic, his Restraint in Action: Judicial
Textualism Court, Texas Review Michigan Supreme 2004). Politics, (Spring Vol. No. of Law & due problem has evolved
17 believe
being willing to exer-
not
courts
courts should honor and en- unsettled
otherwise leaves the law hoping the bio-
courages repeated appeals court will allow sue-
rhythmic chart for the day. particular on a
cess applies to the fact This same belief from the legislating
courts should be applying but should be faithful
bench constitu- the statutes and
plain language of legislatures. Policy are for
tions. decisions often, the vehicle of
All courts have used too way and fact as questions
mixed of law Kunsch, Kelly Ston- policy.
legislating Federal): Primer, (State A &
dard of Review 1, 29. University L.Rev. Vol.
Seattle my always belief that unsettled- It has been it, law, application of or the
ness assis- of the effective
deprives defendants counsel is to the fact
tance of counsel due given on a a court would rule
unsure of how facts, those cases or if it is one of
set of reinterpret those facts the court will
where in em-
already The same is true decided. appropriately evaluate
powering State uncertainty
and file cases due types problems that are the
law. These