# Cohee v. State

> Court of Criminal Appeals of Oklahoma · July 2, 1997 · 942 P.2d 211

URL: https://www.frixlaw.com/law-library/cases/9627944

## Case

- **Full name:** Larry Darnell COHEE, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** July 2, 1997
- **Citations:** 942 P.2d 211; 1997 OK CR 30; 1997 Okla. Crim. App. LEXIS 42; 1997 WL 291454
- **Precedential status:** Published
- **Opinion:** Concurring in part by Lumpkin
- **Judges:** Chapel, Strubhar, Johnson, Lane, Lumpkin
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9627944

## Opinion text

LUMPKIN, Judge,
concurs in part, dissents in part.
The great writer H.L. Mencken once observed that “[tjhere is always an easy solution to every human problem — neat, plausible, and wrong.” 1 If he were that cynical when addressing a solution to a real problem, imagine how he would react to a solution to something which is not a problem. I concur in the Court’s decision to vacate the dicta in Glazier v. State, 514 P.2d 87 (Okl.Cr.1973), however I must dissent to the overreaching dicta which is spawned by the “Guidelines” attached to the opinion.
As a trial judge I recognized immediately my role was to adjudicate the issues presented to me. It was not proper for a judge to attempt to create issues where none existed. That principle is even more important on the appellate court. In this case the Court is presented with a proposition of error that alleges “[I]t was reversible error to permit a juror to take his notes into the jury room during deliberations”; no more, no less. Sua sponte, without any factual or legal basis in the record, the Court after adjudicating the issue presented flies off on a tangent to embrace a notion of how trial judges should manage their courts and deal with jurors. Clearly the Court exceeds its jurisdiction and envisions itself as the combined houses of the Oklahoma Legislature and the Executive fiat rolled into one. This action not only violates the concept of separation of powers, but also fails to apply the basic understanding of judi-ciable issues which are subject to the court’s action. 2
*217 To a great degree, the “Guidelines” merely restate basic, common sense principles of courtesy and management which trial judges exercise as a matter of course on a daily basis. Yet, the Court seeks to establish “Guidelines” without considering either the effect the violation of any of these “guidelines” might have on the criminal trial proceedings, or the cost of implementation. The United States Supreme Court painted itself into a corner on the issue of the rights of jurors as we have seen in Batson 3 and its progeny. This Court should not begin a journey down that same dark path. 4
In addition, the suggestions on time management violate prior caselaw regarding the emphasis of some evidence over other evidence. It is a longstanding holding in this *218 Court that trial judges must remain neutral and should not indicate their opinion as to guilt or innocence in any trial. We have noted that jurors are easily influenced by the conduct and remarks of a facial judge, and the judge should use great care to avoid giving a personal opinion of the weight of the evidence or the guilt or innocence of a defendant. Allen v. State, 862 P.2d 487, 489 (Okl.Cr.1993); Richmond v. State, 456 P.2d 897, 899-900 (Okl.Cr.1969); Martin v. State, 463 P.2d 995, 998 (Okl.Cr.1970); Megown v. State, 300 P.2d 673, 678-79 (Okl.Cr.1956); Robedeaux v. State, 94 Okl.Cr. 171, 176 , 232 P.2d 642, 648 (1951); Rice v. State, 93 Okl. Cr. 86, 92, 225 P.2d 186, 189-90 (1950). Indeed, we have reversed on this very issue. See Harrell v. State, 85 Okl.Cr. 293, 295 , 187 P.2d 676, 677 (1947); McMahan v. State, 96 Okl.Cr. 176, 177 , 251 P.2d 204, 205 (1952) (judgment and sentence modified due to prejudicial remarks made by trial judge); Holcomb v. State, 95 Okl.Cr. 55, 58-59 , 239 P.2d 806, 810-11 (1952) (reversal based at least in part on improper conduct of trial judge who, among other things, rebuked defense counsel in front of the jury for making a valid objection). The “Guidelines” give no guidance as to how a trial court is to determine what is “reasonable” in setting limits on the presentation of evidence by a party. By prejudging the importance of evidence and allocating a time period in which it must be presented, does the Court create the potential of giving greater emphasis to some evidence to the exclusion of other evidence? If a jury during deliberations relates its problems to the court, and the court refuses to allow a defendant to put on additional evidence in an attempt to resolve the question in the jurors’ minds, could that be construed as limiting the ability of a defendant to present evidence? These are not an all-inclusive list of the problems I foresee coming out of this Court’s holding; they are merely examples.
There is nothing wrong with reforms. Often, they are very helpful. Here, however, the Court seeks to apply a reform to problems which do not exist. In this ease, it is wise to remember the words of Ralph Waldo Emerson, when he wrote in his Essays on history: “Every reform was once a private opinion, and when it shall be a private opinion again it will solve the problem of the age.” I am afraid the Court has abandoned its role as the adjudicator of the facts and the law and seeks to play to the ever-changing waves of public opinion. That is not to say, if properly enacted pursuant to the proper authority, some of the “Guidelines” could not assist in the improvement of trial procedure in the District Courts. However, it is not this Court’s role to reach out and reshape the world in the Court’s perceived better image.
The opinion correctly states the issue of jurors taking notes into the jury room was not before the Glazier Court. Here, it is. Appellant agreed to the procedure at trial and the issue is waived for review on appeal. Instead of adjudicating the issue and properly denying it based on that waiver, the Court seeks to justify its extrajudicial action by attempting to fashion a systemic problem where none exists. In doing so, the Court relies on one or two unpublished cases. If a true problem actually existed it would seem this Court would have been required to at least address the issues embraced by this opinion in one published case.
In the famous play-within-a-play scene in Hamlet, the melancholy Dane at one point turned to Queen Gertrude and asked her how she enjoyed the play, to which she replied: “The lady protests too much, methinks.” Here, methinks the Court is guilty of a similar kind of overreacting. Unfortunately, this is no play.
. Mencken, H.L., "The Divine Afflatus,” A Mencken Chrestomathy, ch. 25, p. 443 (1949).
. I am aware this Court has in the past issued guidelines on various subjects. But even in those instances, the guidelines have been consistent with adjudicating an issue before this Court; or if the issue were not squarely before the Court, the issue was at least indicative of a systemic, recurring problem. For instance, in Bruner v. State ex rel. District Court of Oklahoma County, 581 P.2d 1314, 1315 (Okl.Cr.1978), the Court began with the issue before it: whether, when a defendant had retained counsel, he could still be provided with a trial transcript at State expense. Clearly, the issue affected the appellate jurisdiction of this Court. See id. at 1315 ("It is unquestionable that no person can be denied an effective appeal solely on the ground of lack of sufficient funds to properly prosecute the appeal.” (emphasis added)). See also id. at 1315— 16 (Noting that the Court had held in previous cases that “one's 'financial inability' to pay for a transcript is a prerequisite to the granting of a transcript at public expense and must be made on a case by case basis. However, while it is true that every defendant’s financial condition is unique, we now believe that guidelines would aid the District Courts of this State in ordering trial transcripts prepared at public expense for appeal purposes.” (emphasis added)). If determining eligibility for a transcript for purposes of appeal does not touch on the appellate jurisdiction of this Court, I don't know what does. In Burks v. State, 594 P.2d 771 (Okl.Cr.1979), the Court on rehearing specifically addressed its power to pro *217 mulgate rules to aid it in its appellate jurisdiction. The Court noted that in establishing the “other crimes” guidelines, "we were responding to a problem of perpetual existence in the trial courts of our state, where it is not uncommon to find the erroneous admission of evidence of crimes other than that for which the defendant is on trial.” Id. at 775 . We then noted that one basis for the rules rested on "constitutional considerations of due process,” id., which applied throughout the nation. We also observed that standardization of the use of such evidence assured all defendants equal protection of the laws. Id. at 775-76 , and would eliminate the “recurring misuse of other crimes at trials in this state.” Id. at 776 . The Court observed that it had exercised its authority "to establish criteria for the constitutional application of a given statute, in aid of our appellate criminal jurisdiction.” The Court characterized the interpretation of the statute as a "function of this judicial tribunal," adding "[i]t is the responsibility of this Court to construe the intent of pertinent criminal statutes in the manner in which they should have been implemented in light of constitutional standards.” In Burks , the Court noted that due process requires a defendant he given notice so he can prepare a defense and adequately confront witnesses. Id. The court described what it had done as "further delineat[ing] and clarify[ing] the constitutional application of 12 O.S.Supp.1978, § 2404(B).” It observed that such clarification "does not exceed our jurisdiction, but is in aid or (sic) our appellate jurisdiction,” adding that the use of such evidence "has long created problems in the courts of our state.” Id. Even in Allen v. District Court of Washington County, 803 P.2d 1164, 1167 (Okl.Cr.1990), we said we were "continually confronted with issues on appeal relating to compliance with pre-trial discovery within the framework of our criminal procedure,” adding the case presented an opportunity to "fill the gaps.” We rationalized this by observing that "every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction”. Id.
In other words, when imposing guidelines on the trial courts, this Court at least had a principled reason for doing so. Here, there is no such reason. This Court rarely — if ever — gets complaints from defendants about the way jurors on their panels were treated. Accordingly, there is no need to step in to correct a problem, because no such problem exists. If this Court is going to burden the trial courts with additional rules, it must be because they aid us in our jurisdiction, and address a problem before the Court. There must be a reason for imposing additional responsibilities on the courts below, and that reason must be more than we think it would be a keen thing to do.
. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).
. And it can be a dark path. What happens when a trial court violates this Court's guidelines? Can a defendant seek reversal based on a violation of rights not his own? It would seem such a thing is possible, if the violation is severe enough. See e.g., the line of cases which have descended from Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986): J.E.B. v. Alabama ex rel T.B., 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994) (intentional discrimination on the basis of gender by state actors in use of peremptory strikes in jury selection violates equal protection clause); Georgia v. McCollum, 505 U.S. 42 , 112 S.Ct. 2348 , 120 L.Ed.2d 33 , (1992) (equal protection clause prohibited defendant from engaging in purposeful discrimination on ground of race); Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991) (under equal protection clause, criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not defendant and excluded jurors share same race); Holland v. Illinois, 493 U.S. 474 , 110 S.Ct. 803 , 107 L.Ed.2d 905 (1990) (white defendant had standing to object, on "fair cross section” grounds, to prosecutor's use of peremptory challenges to exclude blacks from jury). See also Ezell v. State, 909 P.2d 68, 73 (Okl.Cr.1995) (Lumpkin, J., concurring) (concern over focus of case changing to “a juror’s right to serve rather than the parties’ right to select a jury to try the case,” labeling the holding as "an example of reaching out and embracing a novel legal idea which in practice paints the Court into the proverbial corner. The problem is the paint never dries to allow the painter to leave the room."). None of these cases has anything to do with a defendant's right to a fair trial. Even in these cases, however, the Court was able to hang its ruling on some constitutional principle (the Equal Protection Clause of the Fourteenth Amendment to the United Stales Constitution). That is more than I can say for the guidelines set forth today.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627944. Public record. Not legal advice.