holding that because section 11 complements double jeopardy protections of Oklahoma and United States Constitutions, traditional double jeopardy analysis is conducted only if section 11 does not apply
How later courts described this case
- holding that because section 11 complements double jeopardy protections of Oklahoma and United States Constitutions, traditional double jeopardy analysis is conducted only if section 11 does not apply
- where last Allen charge was two hours previous to instruction at issue, trial court erred in failing to admonish jury to hold to conscientiously held convictions
- adopting same evidence test for double jeopardy analysis
Written by the judges who cited it.
The opinion
LUMPKIN, Vice-Presiding Judge:
concurs in results.
¶ 1 I concur in the Court’s decision to affirm Appellant’s conviction in this case and the modification of the sentence to Life Without Parole. However, there are several issues upon which I cannot agree to the Court’s analysis.
¶2 First, I cannot join in the Court’s misstatement of the holding in Van White v. State, 1988 OK CR 47 , 752 P.2d 814, 820-22 . This Court has not held that the State bears the responsibility of ensuring that the record is sufficient to enable the Court to conduct the mandatory sentence review. What this Court said in Van White is
“[accordingly, we hold that under Kelly, supra, the failure of the court reporter to transcribe voir dire as requested by counsel for appellant in his designation of record, requires that appellant’s judgment and sentence for first degree murder on Count I must be reversed and remanded for a new trial. In so holding, we specifically adopt Judge Brett’s special concurrence in Kelly, supra, requiring that in order to effectuate this Court’s mandatory sentence review obligation under 21 O.S.Supp.1985, § 701.13(C)(1), a complete stenographic record shall be taken in all capital proceedings.”
Id. 1988 OK CR 47, ¶ 17 , 752 P.2d at 821 .
¶ 3 A review of Judge Brett’s separate vote in Kelly reveals Judge Brett’s language is, “I believe there should be a judicial rule in this state that, in order to effectuate this Court’s mandatory obligation under 21 O.S. 1981 , § 701.13, a complete stenographic record must be taken in all capital proceedings, *894 and I would so hold.” Kelly v. State, 1984 OK CR 99 , 692 P.2d 563, 566 . Rather than misstate the holding of a case, I suggest the better practice would be merely to restate the language of that case. It is still the responsibility of an appellant to provide a record for this Court to review. Failure to do so can waive the issue on appeal.
¶ 4 I also have difficulty with the Court’s generic discussion concerning the alleged unauthorized and improper communication by the bailiff with the jury. It is impossible in the course of managing a trial involving a jury to ensure that a bailiff is not going to have some verbal communication with the jurors. In fact, a part of the duties of a bailiff is to take charge of the jury and serve as a conduit to the Court regarding any needs the jury might have. Just because some communication takes place does not mean it was unauthorized or improper. It appears in this case, that whatever communication took place was of an administrative nature which this Court has never held was an inappropriate or unauthorized communication. Because of the way it is treated in the opinion, I cannot join in that analysis. In addition, I do not think this Court wants to adopt an analysis which would create an argument that any type of verbal communication between a bailiff and a jury was unauthorized and improper communication. We should distinguish between administrative matters and matters which go to the substance of their deliberation. In this particular case, I can find nothing in the record that shows this limited communication involved more than the bailiff performing her ministerial duties and no error occurred.
¶ 5 I would prefer the Court to remand this case for resentencing. However, based on the evidentiary hearing which totally impeached the testimony of David Cox, I concur in the modification of the sentence.