# Cohee v. State > Court of Criminal Appeals of Oklahoma · July 2, 1997 · 942 P.2d 211 URL: https://www.frixlaw.com/law-library/cases/9627945 ## 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:** Concurrence by Lane - **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/9627945 ## Opinion text LANE, Judge, concurs in results. I concur in the majority’s resolution of the issue before this Court in proposition one. The issue of whether jurors may take notes with them into deliberations has been properly decided by condemning the dicta in Glazier. However, I would add to the opinion by requiring that jurors’ notes be destroyed at the conclusion of the trial so that the notes may not be used to impeach the jury’s verdict. See 12 O.S.1991, § 2606. I also agree with many of the concerns expressed by Judge Lumpkin in his separate vote. However, I write specially to voice my own concerns regarding the “Guidelines Governing Juries in Criminal Trials” and to *219 question this Courts authority to enact such broad “legislation.” 1 The majority attempts to justify these guidelines based on an unsubstantiated conclusion that time and money were wasted in recent interlocutory appeals brought before this Court. There was absolutely no evidence on the record that either time or money was wasted in that appeal procedure. We simply found that the petitioners failed to establish that they were entitled to extraordinary relief. I would hazard a guess that more time and money has been needlessly spent discussing issues that are not properly before us. The majority condemns trial practice based on dicta, then the majority creates far more dicta than it has condemned. According to Blacks Law Dictionary, dicta, or more precisely obiter dictum, is an expression in a court’s opinion which goes beyond the facts before the court and therefore is an individual view of the author and is not binding in subsequent cases. Blacks Law Dictionary, 5th ed. 408, 409; Also see American Trailers, Inc. v. Walker, 526 P.2d 1150, 1154 (Okla.1974). Clearly the majority intends that these guidelines have precedential value, else why waste time and money in developing them? The majority also exceeds the jurisdiction of this Court in adopting these guidelines. We are a Court of special, limited jurisdiction. We have exclusive jurisdiction over the appeals of criminal cases. 20 O.S.1991, § 40. We also may issue writs when they are necessary to exercise our original jurisdiction. 20 O.S.1991, § 41. We may also prescribe and promulgate rules for the government of this Court. Id. That includes rules for the regulation of practice before this Court. Denton v. Hunt, 79 Okl.Cr. 166 , 152 P.2d 698, 700 (1944). These guidelines do nothing to regulate or aid us in the exercise of our jurisdiction. Conversely, these guidelines are more akin to an advisory opinion, except for the fact that no one has asked our opinion about a non-justiciable matter. Even more egregious, the majority has interjected its opinion on matters it has selected on its own accord. If that is not legislation, then we have been remiss in the application of our jurisdiction prior to this time. ... unless we are vested with original jurisdiction, all exercise of power must be derived from our appellate jurisdiction, which is the power and the jurisdiction to review and correct those proceedings of inferior courts brought for determination in the manner provided by law.... An advisory opinion does not fall within the Court’s original or statutory jurisdiction; neither does it come within its appellate review. Matter of L.N., 617 P.2d 239 , 240 (Okl.Cr. 1980) Guideline 4(B) is the only item which deals with an issue before us in this case. The majority goes far beyond this issue and uses this case as a springboard into improper judicial legislation. These guidelines open a whole new can of worms, worms that will wiggle and squirm through the most adept hands of jurisprudence. 2 Guideline 1 allows a judge to set time limits on the presentation of evidence and the overall length of the trial. This guideline further allow judges to manage documentary evidence. Judges already may limit the introduction of evidence which is irrelevant, cumulative, or prejudicial under our evidence code. This does not mean that trial courts may set limits on the presentation of evidence which is relevant. The limitation of evidence and testimony is likely to create a situation where a judge is perceived to be commenting on the evidence. We have historically condemned any action by the trial court that invades the province of the jury. Any word said or deed done by a trial court *220 which might tend to influence the jury in any respect is forbidden. Furthermore, courts cannot limit some portions of the trial. 22 O.S.1991, § 831 states that the court “... shall not without the consent of the attorneys limit the time of their arguments.” Can it not be said that the limitation of substantive evidence is more harmful than the limitation of argument? Some of the items in these guidelines, beginning with Guideline 1 allow a judge, in his discretion, to treat jurors with respect. Respect of jurors is not discretionary. Canon 3 of the Code of Judicial Conduct requires that judges be “patient, dignified, and courteous to ... jurors ...” Canon 3(A)(3), Code of Judicial Conduct, 5 O.S.1991, Ch. 1, App. 4. There is no need for this Court to rewrite the Judicial Canons. Guideline 2 permits dual juries. We have already given preliminary approval of this procedure by denying petitions for extraordinary relief where a trial court was intending to implement this procedure. 3 We should not create dicta in this ease where the fact situation does not exist for a full examination of the mechanics of a dual jury system. We would be wiser to wait until a fact specific case presents itself so that the dual jury procedure may be properly scrutinized. The comments to guideline 4(A) allow substantive instructions at the outset of jury trial. This procedure does not comport with 22 O.S.1991, § 831, regarding the order of trial proceedings. The Oklahoma Uniform Jury Instructions for criminal eases contain the relevant introductory instructions that should be given before trial. Instructing on substantive trial issues before all of the evidence has been introduced may lead juries to disregard some of the evidence presented during trial. Furthermore, if the subsequent evidence does not support the instructions, jurors will be confused and even prejudiced against the party failing to meet the requirements of the instructions. Jurors are likely to ignore new and different substantive instructions given at the close of the evidence. Substantive instructions must conform to the evidence presented at trial. Therefore, it would not be logical to give substantive instructions before evidence is presented. Guideline 4(B) reiterates the holding of this case, as well as includes the right for jurors to have individual copies of documents and exhibits, photographs and biographies of witnesses. Giving biographies of witnesses before they testify raises the problem of commenting on the credibility of witnesses before their credibility is placed in issue. Furthermore, there is a great expense in giving jurors individual copies of this information. I suppose that the court fund will be responsible for this expense or else only rich defendants and the State will be allowed to provide individual copies of exhibits. Guideline 4(C) allows jurors to direct questions to the witnesses through the judge. We have already ruled on this issue when it was properly before us. See Freeman v. State, 876 P.2d 283, 288-89 (Okl.Cr.1994). I see no need to “codify” our prior decisions. Guideline 4(D) allows written responses to questions from the jury during deliberations. 22 O.S.1991, § 894, specifically covers informing jurors on a point of law after they have retired for deliberations. Jurors are required to be brought into the courtroom. Although we have held that substantial compliance is sufficient, that this requirement may be waived and that a violation may constitute harmless error, we have consistently held that the failure to follow this mandatory statute constitutes error. See Walker v. State, 887 P.2d 301, 312 (Okl.Cr.1994). Clearly, the majority is rewriting statutory law in this guideline. Guideline 5 .makes a drastic change in the law of deadlocked juries. Not since the United States Supreme Courts decision in Allen v. United States, 164 U.S. 492 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896), has there been such an expansion of the law. This guideline permits the court and counsel to assist in deliberations. We might as well do away with the sequestered jury system all together and let the judge and counsel invade the jury room and partake in the deliberations. *221 This guideline goes too far in invading the sanctity of jury deliberations. It will have a chilling effect on jury deliberations by exposing individual juror opinions to outside judgments, regardless of the anonymity of the proceeding. This procedure allows for the giving of additional instructions, directing additional closing argument, and the reopening of the evidence. This procedure may place undue emphasis on certain portions of the evidence or instructions. Allowing additional argument places the court and attorneys in the midst of jury deliberations. Once a ease has been submitted for deliberation, any further argument, evidence and instruction runs the risk of invading the province of the jury. We have to realize that in some cases the jurors are never going to agree on a verdict. Anything more than the standard approved Allen instruction is likely to create an unduly coercive process. Guideline 6 is a waste of paper. Trial courts are fools if they don’t thank the jurors for their service. The post-trial interview process is something that has nothing to do with criminal appellate procedure and, therefore, we have no business even advising trial courts about this procedure. Furthermore, are we allowing judges the authority to become counselors and resource managers for jurors? This new role could break down the cloak of judicial immunity. Nothing in our Constitution nor our statutes allows this Court to enact such broad legislation. These guidelines which are intended to pre-empt needless appeals will have an opposite effect by creating more issues for appellate review. We would do well to limit ourselves to matters which are justiciable in this Court or which have an impact on criminal appellate procedure. ORDER GRANTING PETITION FOR REHEARING, AFFIRMING JUDGMENT AND SENTENCE, AND DIRECTING ISSUANCE OF MANDATE PER CURIAM. Appellant Larry Darnell Cohee, through his attorney of record, has timely filed with this Court a Petition for Rehearing. In it, Appellant points out that this Court in Cohee v. State, 942 P.2d 211 (Okl.Cr.1997), failed to address his second proposition, that the trial court should have granted a mistrial because of the evidentiary harpoon that was hurled during the testimony of Agent Glen Stubbs. Although this proposition was considered by this Court in an internal memorandum, it appears this Court failed to include the disposition of that proposition in its published opinion. Accordingly, Appellant is correct, and we hereby GRANT rehearing for the limited purpose of addressing his second proposition. We find relief is warranted. Stubbs was an agent for the Oklahoma Bureau of Narcotics. During direct examination, the agent testified their target was Jesse Cohee, who apparently worked in the garage with Appellant. During cross-examination, defense counsel re-opened the subject by attempting to impeach Stubbs with his own report. The report stated the confidential informant said he could buy crack from Appellant. When defense counsel pointed this out, he asked if the original target was Jesse. The agent replied “Jesse Cohee was our original target, but anytime we send an informant by Mr. Cohee’s garage, he has always been the number one target.” Defense counsel objected, requesting a mistrial, prompting the trial court to ask him: ‘What did you think he was going to do, Mr. Migliorino?” and ruled defense counsel had opened the door. We agree. See Brannon v. State, 670 P.2d 601, 604 (Okl.Cr.1983). See also Davis v. State, 885 P.2d 665, 668 (Okl.Cr.1994); Goodwin v. State, 743 P.2d 1101, 1103-04 (Okl.Cr.1987); Boyd v. State, 743 P.2d 658, 662 (Okl. Cr.1987); Thomas v. State, 741 P.2d 482, 485-86 (Okl.Cr.1987); Grizzle v. State, 707 P.2d 1210, 1214 (Okl.Cr.1985); Vaughn v. State, 697 P.2d 963, 968 (Okl.Cr.1985). Additionally, the agent’s statement could be interpreted in a way other than Appellant claims: the pronoun “he” could be as easily be interpreted as meaning Jesse. Accordingly, we find no merit to Appellant’s second proposition of error. *222 In his Petition, Appellant also claims this Court erred when it said Appellant did not agree to allow the jurors to take notes into the jury room during deliberations. We disagree. We believe the record clearly shows his attorney agreed the jurors could take their notes into deliberations. In the course of the trial, the following bench conference occurred: THE COURT: I forgot to mention that over the noon hour, Mrs. Looper [bailiff] got a note from Mr. Jones, who’s one of the jurors. I’ll let youall read it. THE COURT: As far as taking notes, I don’t have any objection. MR. GAY [prosecutor]: I think several of them are doing that. THE COURT: They’ve been going it the whole day. MR. MIGLIORINO [defense counsel]: You mean in here, taking them back, or taking notes here? THE COURT: They’ve been taking notes. I don’t have any objection to them taking them to the jury room, if anybody else does, say so. MR. GAY: I don’t have any objection. MR. MIGLIORINO: No, Your Honor. THE COURT: Okay. I’m gonna — counsel, I’m gonna deliver this to — I’m gonna mark this Court’s Exhibit 1 and give it to the court reporter. (Tr. 111-12)(emphasis added). Appellant failed to object at trial, and he is bound by his attorney’s decision. The Judgment and Sentence of the District Court is AFFIRMED. The Clerk of this Court is directed to issue the mandate forthwith. IT IS SO ORDERED. . I condemn this type of "judicial legislation” as I have done so in the past. See Allen v. District Court of Washington County, 803 P.2d 1164 (Okl.Cr.1990) (Lane, Vice-Presiding Judge, concurs in part/dissents in part). . The legislature has seen fit to give us guidelines for the conduct of criminal trials. 22 O.S.1991, § 831-928 set forth the duties of a trial judge and the procedure and order to be followed during a jury trial. Nearly all of these laws were enacted in the Revised Laws of 1910 and most find their origin in the 1887 Criminal Law of Dakota. . See note 2 of the majority's opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627945. Public record. Not legal advice.