Attorney General Requests Execution Dates

Tuesday, Attorney General Drew Edmondson asked the Oklahoma Court of Criminal Appeals to set execution dates for two men convicted of separate murders in Oklahoma County after the United States Supreme Court today denied their final appeals.
Garry Thomas Allen, 48, was convicted of the Nov. 21, 1986, murder of Lawanna Gail Titsworth, 42. Titsworth was the mother of Allen’s sons, Antonio, 6, and Adrian, 2. Allen was convicted of shooting Titworth as she attempted to pick up her sons at Beaulah’s Day Care Center in Oklahoma City.
George James Miller, Jr., 39, was convicted of the Sept. 17, 1994, murder of Gary Kent Dodd, 25. Dodd was working as the night auditor for Central Plaza Hotel, I-40 and Martin Luther King Dr., when Miller stabbed him repeatedly, beat him with hedge shears and a paint can and poured muriatic acid down his throat.Edmondson asked the court to set both dates 60 days from today or at the earliest date the court deems fit.
Source:Attorney General Press Release

Law Limiting Public Access To DPS Records Progresses

Legislation to limit the public's access to Department of Public Safety records was approved by a legislative committee after its author said the Oklahoma Press Association is working with DPS to iron out differences.Representative John Carey says the House Rules Committee voted 8-to-0 to send the measure to the full House for a vote.Earlier this month, an Oklahoma County judge ordered DPS to give a Tulsa newspaper a list of documents and computerized data including records concerning use of force by state troopers; a database of police dog searches; a list of lawsuits and other legal actions involving DPS; and records relating to the agency's computerized data.The proposed legislation would amend Oklahoma's Open Records Act to only permit requests for records related to a specific incident and would bar access to DPS policies and procedures as well as operations manuals if their release would jeopardize safety or security.

Source: Associated Press

Governmental Immunity for Injury Resulting from an Athletic Contest is Limited

In the recent case of GREEN v.KONAWA INDEPENDENT SCHOOL DISTRICT, 2005 OK CIV APP 10 the Oklahoma Court of Civil Appeals ("COCA") has limited the interpretation previously given to 51 O.S. § 155.
On May 11, 2001, Raymond Green, a fourth grader at the Konawa Elementary School, ("School") was a participant in the elementary school track meet at the track/football field facility of Konawa Schools. After taking his turn, he and three other students were directed by a supervising teacher to go to a "stand" outside the track area and wait for the event to be completed. Raymond and the others went to the stand and climbed to the top level. One of the students, who weighed perhaps two hundred pounds, leaned over the top rear edge of the stand, causing it to topple backwards. Raymond was injured in the ensuing fall.
Raymond's father, Dennis Green, filed a lawsuit against the School. He claimed his son's injuries were caused by the negligence of School in failing to secure the stand and/or to properly supervise the children.
School filed a motion for summary judgment based upon an exemption from liability for a loss or claim resulting from "[p]articipation in or practice for any interscholastic or other athletic contest sponsored or conducted by or on the property of the state or a political subdivision" provided in 51 O.S. § 155(20).
Based upon the intpretation given to this statute in the following three cases, the trial court granted the School's Motion for Summary Judgment.
In Curtis v. Board of Education of Sayre Public Schools, 1995 OK 119, 914 P.2d 656, the injured party in that case was a 12-year-old boy who was participating in a softball game during a physical education class. The Oklahoma Supreme Court held that the exemption barred the action, because, although the law had originally only applied to injuries sustained in interscholastic contests, the legislature had amended the provision to also apply to "other athletic contest[s]." Id. at ¶ 9, 914 P.2d at 659.
In Evans v. Oaks Mission Public School, 1997 OK 97, 945 P.2d 492 the injured party was a high school student who injured his shoulder in a wrestling match during a physical education class. The Oklahoma Supreme Court ruled that Section 155(20) barred the action to recover for the child's injury, because it was unrefuted "(1) that the injury . . . occurred while the student was participating in a wrestling match, an athletic contest, during his physical education class, and (2) that the injury occurred on school property." Id. at ¶ 9, 945 P.2d at 494.
Finally, in Hull v. Wellston Independent School District, 2002 OK CIV APP 46, 46 P.3d 180, a student at Wellston High School, suffered an intra-cerebral hemorrhage, a broken collar bone, and a punctured lung while participating in a practice football game between Wellston and Bethel High School. As a result of his injuries, he became permanently disabled. The COCA held that Section 155(20) barred the action because the student "was participating in a practice athletic contest at the time he was injured, and the contest was sponsored and conducted by School District." Id. at ¶ 13, 46 P.3d at 183.
However, upon a de novo review of the record, the COCA held that unlike the three cases described above, in which the child was clearly participating in an athletic contest on school property, "while there is no question the injury to Raymond was sustained on school property, there is a substantial question whether Raymond was participating in or practicing for an interscholastic or other athletic contest." The court noted that the undisputed material facts established that Raymond had ended his direct participation in the event and, at the direction of a school employee, had gone to the stand to wait for the other children to finish the competition.

Gov. Henry Approves Rules on Ammonium Nitrate Fertilizer Sales

Press Release: Gov. Brad Henry has approved state Department of Agriculture rules that restrict sales of ammonium nitrate fertilizer, a key component of the bomb used in the 1995 attack on Oklahoma City’s federal building.“Although it has been 10 years since a bomb of fertilizer and fuel destroyed the Murrah building, the impact of that deadly day still reverberates today,” the Governor said. “These rules are sensible and will help guard against similar tragedies occurring again. Oklahoma must remain vigilant as the specter of terrorism continues to loom over our state and nation.”Under the rules, retailers will have to obtain the name, address, telephone number and driver’s license number of customers who purchase ammonium nitrate fertilizer.Ammonium nitrate was a key ingredient in the homemade bomb that Timothy McVeigh and Terry Nichols used to destroy the Alfred P. Murrah Federal Building, an attack that killed 168 people and injured more than 500 others. Ammonium nitrate was also used in a 2002 terrorist bombing in Indonesia and twice in November, 2004, explosions in Turkey.

Senate Budget Panel Approves Higher Education Bond Issue

Press Release: Governor Brad Henry’s higher education bond issue is on its way to the full Senate for consideration. The Senate Appropriations Committee unanimously approved Senate Bill 745, authored by Senate President Pro Tempore Cal Hobson, D-Lexington, on Wednesday. The $500-million capital bond issue is designed to address aging facilities and help colleges and universities keep pace with growing enrollment and technology. With more than 140 projects in 36 communities across the state, the bond issue is expected to create more than 2,000 jobs in the first year. The total economic impact of the projects is estimated at $737 million and 4,000 jobs in construction alone.

Governor Brad Henry establishes the Operation Homefront Task Force

On February 14, 2005, Governor Brad Henry moved closer to the creation of a Military Family Relief Fund. He signed an executive order establishing the Operation Homefront Task Force that will help identify the most pressing needs of Guardsmen and their families. Gov. Henry said the 15-member panel will recommend what needs should be addressed by the relief fund, as well as what criteria should be set up to determine eligibility for relief grants. The task force will also identify other issues affecting Guard members, especially upon their return home from active duty. The proposed benefits package of “Operation Homefront” also directs that the State purchase a $250,000 life insurance policy for every Guardsman and provide tax exemptions for up to half of all veterans’ military pensions. Oklahomans would be able to contribute to the Military Family Relief Fund through an income tax check-off program.

Supreme Court Opinion on Jury Instructions

On February 8, 2005, the Oklahoma Supreme Court issued an opinion in the case of Capshaw v. Gulf Insurance Co., 2005 OK 5. After waiting for a green light, Capshaw entered the intersection then stopped to make a left turn. Sam Coronado's truck rear ended Capshaw's pickup. These facts were uncontested on appeal.
The issue on appeal concerned the use of a nonstandard verdict form which authorized the jury to apportion negligence between the parties in any manner so long as the aggregate sum equaled zero or one hundred percent. Although the parties tendered for the court's use in the case Oklahoma Uniform Jury Instruction (OUJI) verdict forms, none objected to the nonstandard form selected by the judge. Because the jury found none of the parties negligent, it did not award recovery to anyone.
In conversation with both parties' counsel and outside the jury's hearing, the trial court then expressed sua sponte his concern that he submitted to the jury a flawed verdict form. The form permitted a finding of no negligence by either party. However, the judge did not think the jury was free to find none of the parties negligent under the submitted theories of the case, but rather was required to find the sum of the parties' negligence to be no less than one hundred percent. Capshaw's lawyer suggested a mistrial. Coronado's counsel urged that the jury be re-instructed and afforded the opportunity to deliberate further. The judge accepted neither suggestion. He directed the verdict be read and accepted, and the jury was discharged.
Capshaw moved for a mistrial, a new trial or judgment notwithstanding the verdict. The trial judge sustained the Capshaw's motion for a new trial, and Coronado appealed.
The Court of Civil Appeals ("COCA") reversed. COCA did not address itself to whether the verdict form was tainted by fundamental error. Its opinion is bottomed on the rationale that a jury may find liability and yet limit or assess no damages. It concluded that although insofar as it dealt with the litigants' negligence the jury verdict could have been corrected, its decision not to award damages adequately serves as a resolution of the dispute and as grounds to deny the new-trial motion. Any defect in the form was not fatal, and a new trial should not have been granted. COCA reversed the trial court's order and remanded the cause with instructions to reinstate the jury's verdict that allowed no recovery.
Capshaw sought certiorari relief. On certiorari review the Supreme Court vacated the opinion of the COCA, but also reversed the order of the trail court granting a new trial, reinstated the jury verdict, and ordered judgment to be entered on the verdict. The Supreme Court held that though the COCA reviewed the issue before it as one of law and the standard to be used as that of abused discretion, it improperly injected a different standard into its opinion that embodied in the terms of 20 O.S. §3001.1,whose review standard deals with appellate reversal of a jury verdict by granting a new trial.
Having settled the proper review standard the Supreme Court held that Capshaw had failed timely to except to the verdict form and hence failed preserve that error for review.
Under Oklahoma law a claim that the blank verdict form is manifestly flawed may be presented absent a preserved trial-court exception. However, because the blank form used permitted a jury to find negligence, no negligence or contributory negligence in any proportion that totaled either zero or one hundred percent, the court held that there was no manifest error.

Life Sentence for the Death of a Co-Conspirator

On February 4, 2005, in the case of Dickens v. State, 2005 OK CR 4, the Oklahoma Court of Criminal Appeals affirmed the decision of the District Court sentencing Christopher Michael Dickens to life imprisonment.
Dickens and two others robbed a McDonald’s restaurant in Tulsa, Oklahoma on the evening of September 25, 2002 . "One accomplice, Charles Turner, used a firearm during the robbery. The police were alerted as the robbery was in progress. An officer arrived and waited for the robbers to exit.
"Turner and [Dickens] left the store and ran to an open field. One of the officers released his K-9 and ordered the two to stop, but they continued to run. As the K-9 closed in on the pair, Turner fired shots from his weapon. Officers returned fire, striking and killing Turner. As the shooting began, [Dickens] dropped to the ground, and he was apprehended after the shooting."
In Tulsa County District Court, Dickens, was convicted after jury trial of Robbery with a Firearm in violation of 21 O.S. § 801, and First Degree (felony) Murder in violation of 21 O.S. § 701.7(B). The jury set punishment at life imprisonment on the Felony-Murder conviction. The trial court dismissed the robbery count and sentenced Dickens to life imprisonment. Upon appeal, the Oklahoma Court of Criminal Appeals affirmed Dickens conviction. The court held that Dickens' attempted escape was still part of the robbery, and Dickens' fall to the ground did not constitute withdrawl.

Parental Rights and Child Custody Opinion

In King v. King, 2004 OK 4, the Oklahoma Supreme Court issued and opinion today holding that a prevailing parent, demonstrating good cause for withholding court-ordered visitation, is entitled to appeal-related attorney fees. The court further held that where a child consistently repeated the allegations of abuse, professionals expressed opinions that the abuse occurred, and the mother had to make a choice between denying visitation and putting her parental rights in jeopardy, the equities supported an award to the mother.
Summary:
Anthony and Barbara King were married in 1998. They had one child in also in 1998. In December of 2000, Mrs. King moved to Kansas. Mr. King later filed for divorce in 2001. The court granted Mrs. King custody and gave Mr. King standard visitation rights. Following allegations of sexual abuse by an uncle during visitation with Mr. King, Mrs. King refused to allow the father visitation with the child.
The father filed a motion to modify asserting that it would be in the best interests of his son to change the custodial arrangement. After a hearing, the trial court, Honorable Noah Ewing, granted the father custody ordering the mother to pay child support. He also ordered that the child was not to be around the uncle at any time.
The Court of Civil Appeals reversed determining that: 1) the mother had good cause for the temporary failure to allow visitation; 2) there was no evidentiary support for the conclusion that the child was manipulated; 3) no clear and convincing evidence existed of a permanent, substantial and material change of circumstances; and 4) the trial court's decision was against the clear weight of the evidence. Upon review, the Supreme Court left the Court of Civil Appeals opinion, which reversed and remanded the decision of the trial court, undisturbed. The court held that because the clear, explicit, mandatory and unmistakable terms of 43 O.S. Supp. 2003 §112(D)(2) authorize the award of attorney fees to the prevailing party, on consideration of an issue of first impression, a prevailing parent, demonstrating good cause for withholding court-ordered visitation, is entitled to appeal-related attorney fees. The court further held, under the facts presented -- where the child consistently repeated the allegations of abuse, professionals expressed opinions that the abuse occurred and the mother had to make a choice between denying visitation and putting her parental rights in jeopardy, the equities support an award to the mother.