L AW YERS HELPING L AW YERS
DISCUSSION GROUP
Contact Kim Reber @ 405-840-0231 • [email protected]
You are not alone.
Oklahoma City Location - 6 p.m.
Office of Tom Cummings
701 N.W. 13th St.
Oklahoma City, OK
Tulsa Location - 7 p.m.
University of Tulsa
College of Law
John Rogers Hall
3120 E. 4th Pl.
Rm. 206, Tulsa
Topic:
The Challenges of Work, Relationships
and Parenting
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2008 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS pUBLISHEd THREE TIMES A MONTH IN JANUARy, FEBRUARy, MARCH, ApRIL, MAy, AUgUST, SEpTEM-BER, OCTOSEpTEM-BER, NOvEMBER ANd dECEMBER ANd BIMONTHLy IN JUNE ANd JULy. By THE OKLAHOMA BAR ASSOCIATION, 1901 N. LINCOLN BOULEvARd, OKLAHOMA CITy, OKLAHOMA 73105. pERIOdICALS pOSTAgE pAId AT OKLA-HOMA CITy, OK. pOSTMASTER: SENd AddRESS CHANgES TO THE OKLAOKLA-HOMA BAR ASSOCIATION, p.O. BOx 53036, OKLAHOMA CITy, OK 73152-3036. SUBSCRIp-TIONS ARE $55 pER yEAR ExCEpT FOR LAw STUdENTS REgISTEREd wITH THE OKLAHOMA BAR ASSOCIATION, wHO MAy SUBSCRIBE FOR $25. ACTIvE MEM-BER SUBSCRIpTIONS ARE INCLUdEd AS A pORTION OF ANNUAL dUES. ANy OpINION ExpRESSEd HEREIN IS THAT OF THE AUTHOR ANd NOT NECESSAR-ILy THAT OF THE OKLAHOMA BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARd OF EdITORS.
EvENTs CALENdAR
For more events go to www.okbar.org/calendar
THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2013 Oklahoma Bar Association. The design of the scales and the “Oklahoma Bar Association” encircling the scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors.
THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS pUBLISHEd THREE TIMES A MONTH IN JANUARy, FEBRUARy, MARCH, ApRIL, MAy, AUgUST, SEpTEM-BER, OCTOSEpTEM-BER, NOvEMBER ANd dECEMBER ANd BIMONTHLy IN JUNE ANd JULy By THE OKLAHOMA BAR ASSOCIATION, 1901 N. LINCOLN BOULEvARd, OKLAHOMA CITy, OKLAHOMA 73105. pERIOdICALS pOSTAgE pAId AT OKLA-HOMA CITy, OK. pOSTMASTER: SENd AddRESS CHANgES TO THE OKLAOKLA-HOMA BAR ASSOCIATION, p.O. BOx 53036, OKLAHOMA CITy, OK 73152-3036. SUBSCRIp-TIONS ARE $60 pER yEAR ExCEpT FOR LAw STUdENTS REgISTEREd wITH THE OKLAHOMA BAR ASSOCIATION, wHO MAy SUBSCRIBE FOR $25. ACTIvE MEM-BER SUBSCRIpTIONS ARE INCLUdEd AS A pORTION OF ANNUAL dUES. ANy OpINION ExpRESSEd HEREIN IS THAT OF THE AUTHOR ANd NOT NECESSAR-ILy THAT OF THE OKLAHOMA BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARd OF EdITORS.
The Oklahoma Bar Association’s official website:
www.okbar.org
OFFICERs & BOARd OF GOvERNORs
James T. Stuart, President, Shawnee Renée deMoss, President-Elect, Tulsa dietmar K. Caudle, Vice-President, Lawton Cathy M. Christensen, Immediate Past President, Oklahoma City
Sandee Coogan, Norman gerald C. dennis, Antlers Robert S. Farris, Tulsa
Robert d. gifford II, Oklahoma City Kimberly Hays, Tulsa
douglas L. Jackson, Enid O. Chris Meyers II, Lawton d. Scott pappas, Stillwater Nancy S. parrott, Oklahoma City Bret A. Smith, Muskogee Richard d. Stevens, Norman Linda S. Thomas, Bartlesville Joseph M. vorndran, Shawnee,
Chairperson, OBA/Young Lawyers Division
BAR CENTER sTAFF
John Morris williams, Executive Director; gina L. Hendryx, General Counsel; Jim Calloway,
Director of Management Assistance Program; Craig d. Combs, Director of Administration; Susan damron Krug, Director of Educational
Programs; Beverly petry Lewis, Administrator
MCLE Commission; Carol A. Manning, Director
of Communications; Travis pickens, Ethics Counsel; Robbin watson, Director of Information Technology; Jane McConnell, Coordinator Law-related Education; Loraine dillinder Farabow, Tommy Humphries, Tina Izadi, Katherine Ogden, Steven Sullins,
Assistant General Counsels; Tommy Butler, Tanner Condley, Sharon Orth, dorothy walos and Krystal willis, Investigators
Manni Arzola, debbie Brink, Emily Buchanan, Susan Carey, Johnny Marie Floyd, Matt gayle, dieadra goss, Brandon Haynie, Suzi Hendrix, Misty Hill, debra Jenkins, durrel Lattimore, Heidi McComb, Renee Montgomery, wanda Reece-Murray, Larry Quinn, Lori Rasmussen, Tracy Sanders, Mark Schneidewent, Jan Thompson, Laura willis & Roberta yarbrough EdITORIAL BOARd
Editor in Chief, John Morris williams, News & Layout Editor, Carol A. Manning, Editor, Melissa deLacerda, Stillwater, Associate Editors: dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily duensing, Tulsa; pandee Ramirez, Okmulgee; Mark Ramsey, Claremore; Judge Megan Simpson, Buffalo; Joseph M. vorndran, Shawnee; Judge Allen J. welch, Oklahoma City; January windrix, poteau
NOTICE of change of address (which must be in writing and signed by the OBA member), undeliverable copies, orders for subscriptions or ads, news stories, articles and all mail items should be sent to the Oklahoma Bar Association, p.O. Box 53036, Oklahoma City, OK 73152-3036. Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAx 405-416-7001 Continuing Legal Education 405-416-7006 Ethics Counsel 405-416-7055
general Counsel 405-416-7007 Law-related Education 405-416-7005 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance program 405-416-7008 Mandatory CLE 405-416-7009
OBJ & Communications 405-416-7004 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070
14 OBA Law Day Committee meeting; 12 p.m.; Oklahoma Bar Center,
Oklahoma City; Contact Richard Vreeland 405-360-6631
OBA Legal Intern Committee meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact Candace Blalock 405-238-0143
15 OBA Women in Law Committee meeting; 4 p.m.; Oklahoma Bar
Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact Kim Hays 918-592-2800
15-16 Legal Aid Services of Oklahoma seminar; 8:30 a.m.; Oklahoma Bar
Center, Oklahoma City; Contact Cindy Goble 405-488-6823
16 OBA Technology Committee meeting; 3 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact Gary Clark 405-744-1601
OBA Professionalism Committee meeting; 3:30 p.m.; Oklahoma Bar
Center, Oklahoma City with teleconference; Contact Richard Woolery 918-227-4080
17 OBA Board of Governors meeting; 8:30 a.m.; Oklahoma Bar Center,
Oklahoma City; Contact John Morris Williams 405-416-7000
Oklahoma Bar Foundation Trustee meeting; 1 p.m.; Oklahoma Bar
Center, Oklahoma City; Contact Nancy Norsworthy 405-416-7070
OBA Rules of Professional Conduct Committee meeting; 3 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact Paul Middleton 405-235-7600
18 OBA Title Exam Standards Committee meeting; 9 a.m.; Tulsa County
Bar Center, Tulsa; Contact Jeff Noble 405-942-4848
20 OBA Litigation Section meeting; 12 p.m.; Oklahoma Bar Center,
Oklahoma City and OSU Tulsa, Tulsa; Contact Renée DeMoss 918-595-4800
OBA Solo and Small Firm Conference Planning Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact
Collin Walke 405-235-1333
OBA Alternative Dispute Resolution Section meeting; 4 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact Michael O’Neil 405-232-2020
Online access saves you time & money
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contents
May 11, 2013 • Vol. 84 • No. 13O
klahOma
B
ar
a
ssOciatiOn
page
table of
915
Events Calendar
918
Index to Court Opinions
919
Supreme Court Opinions
924
Sovereignty Symposium 2013
928
Court of Criminal Appeals Opinions
936
Judicial Nominating Commission Elections
940
Court of Civil Appeals Opinions
Index to Opinions of supreme Court
2013 OK 33 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION,
Com-plainant, v. wILLIAM g. BERNHARdT, Respondent. SCBd-6001 ... 9 1 9 2013 OK 32 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION
Com-plainant, v. CRAIg STEvEN KEy, Respondent. SCBd-6000 ... 9 1 9
Index to Opinions of Court of Criminal Appeals
2013 OK CR 7 THE STATE OF OKLAHOMA, Appellant, v. ROBERT HARRELL BASS,
JR., Appellee. Case No. S-2012-363 ... 9 2 8
Index to Opinions of Court of Civil Appeals
2013 OK CIv App 35 IN THE MATTER OF THE ESTATE OF dONALd R. ROZELL: plaintiff/Appellant, vs. THE BETTy ROZELL REvOCABLE TRUST ANd EARL
ROZELL, TRUSTEE, defendants/Appellees. Case No. 109,331 ... 9 4 0 2013 OK CIv App 36 IN RE THE MARRIAgE OF: dIANA HILLHOUSE, petitioner/
Appellant, vs. JEFFREy MICHAEL FITZpATRICK, Respondent, and MIKE FITZpAT
RICK and JANIE FITZpATRICK, Intervenors/Appellees. Case No. 109,565 ... 9 4 4 2013 OK CIv App 37 EOR dOMESTIC, LLC, a delaware limited liability company,
plain-tiff/Appellee, vs. dAvId SHROFF, d/b/a ExCALIBUR, INC.; AvONdALE OpER-ATINg CO., an Oklahoma corporation; and ExCALIBUR xyZ, INC., defendants
Appellants. Case No. 110,100 ... 9 4 7 2013 OK CIv App 38 HSRE-pEp I, LLC, a delaware limited liability company, substituted
as plaintiff for FIRST UNITEd BANK ANd TRUST CO., an Oklahoma banking asso-ciation, plaintiff/Appellant, vs. HSRE-pEp CRIMSON pARK LLC, a delaware limit-ed liability company, substitute as defendant for FIRST UNITEd pROpERTy HOLd-INg COMpANy, LLC, SERIES B, a series of First United property Holding, LLC, an Oklahoma limited liability company; BENEFIT BANK, Frisco Branch; AIRTIME INC., an Oklahoma corporation; MITCHELL gEE, an individual; SAUNdRA dE-SELMS, Treasurer for Cleveland County, Oklahoma; and the BOARd OF COUNTy COMMISSIONERS OF CLEvELANd COUNTy, OKLAHOMA, defendants, and BENEFIT BANK, plaintiff/Appellee, vs. AdUddELL dEvELOpMENT gROUp, LLC; Odg-OU, LLC; FIRST UNITEd BANK & TRUST CO.; FIRST UNITEd pROp-ERTy HOLdINg COMpANy, LLC, SERIES B, a series of First United property Hold-ing Company, LLC; MITCHELL gEE d/b/a AIRTIME, INC.; gARy d. BROOKS; KENNy w. THOMAS; dAvId w. AdUddELL; and J. gLENN RANKIN,
defen-dants. Case No. 110,288; (Comp. w/109,777) ... 9 5 2 2013 OK CIv App 39 IN RE gUARdIANSHIp OF KANdEE ANN MARy CATHERINE
BOROvETZ. KANdEE ANN MARy CATHERINE BOROvETZ, ward, Applicant/ Appellant, vs. FRANK BOROvETZ, JR., Limited Co-guardian,
2013 OK 33
sTATE OF OKLAHOMA ex rel. OKLAHOMA BAR AssOCIATION, Complainant, v. WILLIAM G. BERNHARdT,
Respondent. sCBd-6001. May 6, 2013
ORdER OF IMMEdIATE INTERIM SUSpENSION
The Oklahoma Bar Association (OBA), in com-pliance with Rule 7.1 and 7.2 of the Rules gov-erning disciplinary proceedings (Rgdp), has forwarded to this Court certified copies of the Information, Order deferring judgment and sen-tence on a plea of guilty in which william g. Bernhardt, pled guilty to the felony charges of (1) driving Under the Influence of Alcohol, under 47 O.S. 11-902; and (2) Attempting to Elude a police Officer, under 21 O.S. 540A(B); and (3) one misdemeanor count of Transporting an Open Container of Alcohol, a violation of 21 O.S. 1220. Rule 7.3 of the Rgdp provides: “Upon receipt of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or informa-tion and the judgment and sentence, the Supreme Court shall by order immediately suspend the lawyer from the practice of law until further order of the Court.”
Having received certified copies of the required paperwork, this Court orders that william g. Bernhardt is immediately suspended from the practice of law. william g. Bernhardt is directed to show cause, if any, no later than May 17, 2013, why this order of interim suspension should be set aside. See Rgdp Rule 7.3. The OBA has until May 28, 2013, to respond.
Rule 7.2 of the Rgdp provides that a certified copy of a plea of guilty, an order deferring ment and sentence, or information and judg-ment and sentence of conviction “shall consti-tute the charge and be conclusive evidence of the commission of the crime upon which the judg-ment and sentence is based and shall suffice as the basis for discipline in accordance with these rules.” pursuant to Rule 7.4 of the Rgdp, wil-liam g. Bernhardt has until May 27, 2013, to
show cause in writing why a final order of disci-pline should not be imposed, to request a hear-ing, or to file a brief and any evidence tending to mitigate the severity of discipline. The OBA has until June 11, 2013, to respond.
dONE By ORdER OF THE SUpREME COURT this 6th day of May, 2013.
/s/ Tom Colbert CHIEF JUSTICE
Colbert, C.J., Reif, v.C.J., watt, winchester, Edmondson, Taylor, Combs and gurich, JJ., Concur.
Kauger, J., Not participating.
2013 OK 32
sTATE OF OKLAHOMA ex rel. OKLAHOMA BAR AssOCIATION Complainant, v. CRAIG sTEvEN KEY,
Respondent. sCBd-6000. May 6, 2013
ORdER APPROvING REsIGNATION
¶1 On April 25, 2013, the Oklahoma Bar Association (Bar Association), notified the Court that the respondent, Craig Steven Key (Attorney/respondent), resigned from the Oklahoma Bar Association pending disciplin-ary proceedings. The disciplindisciplin-ary proceedings relate to: misappropriation of client funds; fail-ure to provide accounting of settlement funds, failure to communicate with clients, conflict of interest, and committed forgery and embezzle-ment.
¶2 THE COURT FINdS:
1. The respondent has voluntarily resigned from the Oklahoma Bar Association by complying with Rule 8.1 and Rule 8.2, Rules governing disciplinary proceedings, 5 O.S. Supp. 2008 Ch. 1, App. 1-A.
The respondent’s affidavit of resignation reflects that: a) it was freely and voluntarily rendered; b) he was not subject to coercion or duress; and c) he was fully aware of the consequences of submitting the resignation.
supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2. The respondent states that he is aware of the following grievances against him: dC 12-056: grievance by James dale Morn-ingstar: regarding allegations that despite repeated requests, he failed to provide his client with an accounting of $57,238.00 in settlement funds he received on the client’s behalf since September of 2010. Said griev-ance further alleges he may have misap-propriated said funds for personal use. dC 12-068: grievance by Tara Johnson: regarding allegations that he neglected cli-ent’s case and failed to earn or refund a $3,500.00 retainer fee she paid on or about November 30, 2011. The grievance further alleges he failed to diligently communicate with client despite repeated requests for action or information regarding the status of case or refund of the retainer.
dC 12-246: grievance by the Office of the general Counsel: regarding a report from First Bank of Chandler, received by the Oklahoma Bar Association on November 19, 2012, that client trust account had been over-drawn since October 15, 2012 in the amount of $5,482.24. Said grievance further alleges he failed to provide a written response to the inquiry to the Office of the general Counsel as required by Rule 5.2, Rgdp.
dC 13-0009: grievance by Jennifer Savage: regarding allegations he failed to promptly handle, account for, and safe keep settle-ment funds in which Accident Care & Treatment Center of Oklahoma City, OK claimed an interest. Said grievance further alleged his trust account check written to Accident Care & Treatment Center in the amount of $8,391.28 was returned for insuf-ficient funds on January 7, 2013.
dC 13-014 grievance by Steven Lemar Mitchell: regarding allegations he neglect-ed client’s lawsuit which resultneglect-ed in its dismissal and that he failed to communi-cate with client regarding concerns about the case. Said grievance further alleges he had a conflict of interest in representing Mr. Mitchell’s wife in a divorce proceeding because he had previously had a conversa-tion with Mr. Mitchell about the possibility of representing him in the divorce wherein he divulged confidential information. dC 13-052: grievance by Joseph T. wood: regarding allegations he neglected a quiet
title suit, failed to communicate with requests for information as to the status of the matter, made repeated misrepresentations about refunding the unearned fee of $1,000.00 retainer and that he may have converted said funds to his own personal use.
dC 13-064: grievance by Michelle Roux: regarding allegations he neglected her fam-ily law matter and failed to earn a $2,500.00 retainer fee.
dC 13-065 grievance by Steve and wendy Mays: regarding allegations he missed the statute of limitations on their personal injury claim, lied about settling their case, and that he gave his clients a check from his client trust account at the First Bank of Chandler (Account #143477, Check #1146) in the amount of $3,990.30 on October 11, 2011 and a cashier’s check from First Bank of Chandler (No. B 09276 in the amount of $8,642.00) on June 12, 2012 in an effort to hide his neglect of their legal matter. dC 13-066: grievance by the Office of the general Counsel: regarding criminal charg-es filed against him in Lincoln County district Court Case No. CF-2013-137 alleg-ing he committed the felony crimes of (I) delivery of a Forged Instrument and (II) Embezzlement (See also dC 12-56, supra.) dC 13-067: grievance by the Office of the general Counsel: regarding criminal charg-es filed against him in Lincoln County district Court Case No. CF-2013-138 alleg-ing he committed the felony crimes of (I) Conspiracy to Commit Larceny of domes-tic Animals & Implements of Husbandry and (II) Larceny of domestic Animals & Implements of Husbandry.
dC 13-068: grievances by the Office of the general Counsel: regarding criminal charg-es filed against him in Lincoln County district Court Case No. CF-2013-138 alleg-ing he committed the felony crimes of (I) delivery of a Forged Instrument and (II) Embezzlement.
3. The respondent states in his affidavit of resignation that he is aware that the allega-tions of conduct, if proven, would be a violation of Rules 1.1, 1.3, 1.4, 1.5, 1.6, 1.7, 1.15, 1.16(d), 3.2, 8.1(b), and 8.4 of the Okla-homa Rules of professional Conduct, 5 O.S. Supp. 2008, Ch. 1, App. 3-A and Rules 1.3 and 5.2 of the Rules governing
disciplin-ary proceedings, 5 O.S. Supp. 2008, Ch. 1, App. 1-A and of his oath as an attorney. 4. The respondent’s resignation pending disciplinary proceedings is in compliance with all of the requirements set forth in Rule 8.1, Rules governing disciplinary proceedings, 5 O.S. Supp. 2008, Ch. 1, App. 1-A and it should be approved.
5. The official roster address of the respon-dent as shown by the Oklahoma Bar Asso-ciation is: Craig Steven Key, 910 East 1st Street, Chandler, OK 74834.
6. The Bar Association has waived the imposition of minimal costs and the respon-dent asks that any costs incurred be waived in this proceeding.
IT IS THEREFORE ORdEREd, AdJUdgEd, ANd dECREEd that Craig Steven Key resig-nation pending discipline be approved.
IT IS FURTHER ORdEREd, AdJUdgEd, ANd dECREEd that Craig Steven Key’s name
be stricken from the roll of attorneys. Because resignation pending disciplinary proceedings is tantamount to disbarment, the respondent may not make an application for reinstatement prior to the expiration of 5 years from the date of this order. pursuant to Rule 9.1, Rules gov-erning disciplinary proceedings, 5 O.S. Supp. 2008, Ch. 1, App. 1-A, the respondent shall notify all of his clients, if any, having legal busi-ness pending with him within 20 days, by cer-tified mail, of his inability to represent them and of the necessity for promptly retaining new counsel. The Bar Association has waived the imposition of costs in this proceeding.
dONE By ORdER OF THE SUpREME COURT THIS 6th dAy OF MAy 2013.
/s/ Tom Colbert CHIEF JUSTICE
Colbert, C.J., Reif, v.C.J., Kauger, watt, win-chester, Edmondson, Taylor, gurich, JJ., concur. Combs, J., recused.
NOTICE OF JUDICIAL VACANCY
The Judicial Nominating Commission seeks applicants to fill the following judicial office:
Associate District Judge
Fourteenth Judicial District
Pawnee County, Oklahoma
This vacancy is created by the retirement of the Honorable Matthew D. Henry effective
August 1, 2013.
To be appointed an Associate District Judge, an individual must be a registered voter of the applicable judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, the appointee must have had a minimum of two years experience as a licensed practicing attorney, or as a judge of a court of record, or combination thereof, within the State of Oklahoma.
Application forms can be obtained on line at www.oscn.net by following the link to
the Oklahoma Judicial Nominating Commission or by contacting Tammy Reaves,
Admin-istrative Office of the Courts, 2100 North Lincoln, Suite 3, Oklahoma City, OK 73105, (405)
556-9300, and should be submitted to the Chairman of the Commission at the same
address
no later than 5:00 p.m., Friday, May 31, 2013. If applications are mailed,
they must be postmarked by midnight, May 31, 2013.
Heather Burrage, Chairman
The Oklahoma Criminal Defense Lawyers Association
Presents
The 21
thAnnual
Patrick A. Williams
Criminal Defense
Institute
June 27 & 28, 2013
The Skirvin Hilton Hotel
Oklahoma City, OK
MCLE Credit
x
OK - 12 Hours, includes 6 hours of Mandated Juvenile Law training* and 1 hour ethics**
Location
The Skirvin Hilton Hotel has a room rate of $129.00 for the CDI. This rate is good until May
28th. For room reservations call
405-272-3040or online. Reference Group Code: OCDLA
Registration Fees
-
OIDS Contractors/ OCDLA Member
_____ $150.00
-Non Member/Non OIDS
_____ $200.00
-Registration after June 18th
_____ $175.00 OCDLA/OIDS
_____ $225.00 Non OCDLA/OIDS
Full Name: ________________________________________________OBA#:_________________ Address: _________________________________________________________________________ City: _____________________________________ State_________ Zip: _____________________ Phone: ___________________________Email: __________________________________________
Visit www.OCDLAOKLAHOMA.com to register
2013 CRIMINAL DEFENSE INSTITUTE SCHEDULE
Thursday, June 27, 2012 Main Session
8:30 - 9:00 am Welcome
Michael Haggerty II, OCDLA President, Bob Ravitz, Chief Public Defender OK County Jack Zanerhaft, Chief Public Defender Tulsa County, Joe Robertson, OIDS
9:00 - 10:40 am Voir Dire: The Marriage of Colorado and Wyoming
Cindy Viol, OIDS & David Smith, Norman
10:50 - 11:40 am Ethically Addressing Issues of Prosecutorial Misconduct**
David Autry, OKC
11:40 - 12:30 pm Interviewing and Cross Examining the Child Complainant*
William Korman, Boston, MA.
BREAKOUT SESSIONS Track 1
1:30 - 2:20pm Identifying and Litigating Brady Violations* David Autry, OKC
2:30 - 3:20pm SORA & Convictions Triggering The Act- Jack Dempsey Pointer, OKC
3:30 - 4:20pm Issues in Drug Dog Cases - Doug Parr, OKC
4:30 - -5:20pm Search and Seizure*- Larry Edwards, Tulsa
Track 2
1:30 - 2:20pm Your Military Client’s Records: Getting Them All & Decoding the Military Language
Robert Don Gifford, United States Attorneys Office
2:30 - 3:20pm Veterans Justice Outreach- How The Program Can Help Your Client
Joseph Dudley, MSW, VA Hospital, OKC
3:30 - 4:20pm Writing Tips for Appellate Attorneys-Rob Ramana, OKC
4:30 - -5:20pm Case Update: State and Federal
Barry Derryberry,Federal Defender, Stuart Southerland, Tulsa Public Defender
Track 3
1:30 - 2:20pm DUI: John Hunsucker, OKC & Bruce Edge, Tulsa
2:30 - 3:20pm DUI: John Hunsucker, OKC & Bruce Edge, Tulsa
3:30 - 4:20pm DUI-Drugs/DRE-John Hunsucker, OKC & Bruce Edge, Tulsa
4:30 - -5:20pm Designer Drugs- Dr. John Duncan, PhD, OUHSC
Friday, June 28
th8:30 - 9:00am Welcome & Presentation of the 2013 Patrick A Williams Award
9:00 - 9:50am Assessing Trauma: Integrating It Into Your Adult and Juvenile Defense Strategy*
Cathy Olberding, LPC, OKC
9:50 - 10:40am The Youthful Brain- Using the Science to Benefit Child & Young Adult Clients*
Rick Wardroup, Lubbock, TX
10:50 - 11:40pm Enforcing the Personal and Fundamental Right to a Meaningful Preliminary Hearing
John Echols, Tulsa
11:40 -12:30pm How to Represent the Sex Crimes Defendant & Still Get Invited to Cocktail Parties*
William Korman, Boston, MA
FOR MORE INFO: Email: [email protected] or call the OCDLA: 405-212-5024
A Fair Impartial
Independent Judiciary
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klahoma Stephen Mopope (Kiowa)Flute Dance
Oklahoma Art in Public Places – The Oklahoma Judicial Center Permanent Collection
Wednesday Morning
4.5 CLE credits / 1 ethics included
7:30 – 4:30 Registration (Honors Lounge) 8:00 – 8:30 Complimentary Continental Breakfast
10:30 – 10:45 Morning Coffee / Tea Break 12:00 – 1:00 Lunch on your own
8:30 – 5:30 PANEL A: TRIBAL ECONOMIC dEvELOPMENT Crystal Room
8:30 – 12:30 INITIATIvEs FOR ECONOMIC dEvELOPMENT
MOdERATOR: dR. JAMES C. COLLARd, director of planning and Economic development, Citizen potawatomi Nation HONORABLE dAvId wALTERS, president, walters power International, governor of Oklahoma, 1990-1994
dEE ALExANdER, Senior Advisor on Native American Affairs, United States department of Commerce
JONNA KIRSCHNER, ESQ., Executive director and general Counsel, Oklahoma department of Commerce
ROy H. wILLIAMS, president and CEO, greater Oklahoma City Chamber of Commerce
gEORgE LEE, vice-president, Red devil, Inc., Chair, Oklahoma governor’s International Team
JANIE HIpp, ESQ., director, Indigenous Food and Agriculture Initiative, University of Arkansas School of Law
TIM gATZ, director of Capital programs, Oklahoma department of Transportation
JAy AdAMS, Tribal Liaison, Oklahoma department of Transportation
8:30 – 12:30 PANEL B: vETERANs Grand Ballroom B
8:30 – 10:45 IssUEs FACING MILITARY MEMBERs PAsT ANd PREsENT
CO-MOdERATORS: HONORABLE w. KEITH RApp, Oklahoma Court of Civil Appeals
MAJOR gENERAL RITA ARAgON (ret.), (Choctaw/Cherokee), Oklahoma Secretary of veterans Affairs
dEBORAH ANN REHEARd, ESQ., past president (2011), Oklahoma Bar Association, Member, Judicial Nominating Commission
COLONEL BRENT wRIgHT ESQ. (Cherokee Nation) Staff Judge Advocate, Oklahoma National guard, 138th Fighter wing [ANg] [ACC]
COLONEL CURTIS ARNOLd, Construction Facilities Manager, Oklahoma National guard
10:45 – 12:30 vETERANs ANd dIvERsION COURT PROGRAMs – UNITEd sTATEs dEPARTMENT OF vETERANs AFFAIRs
MOdERATOR: HONORABLE dOUgLAS COMBS, (Muscogee
Creek), Justice, Oklahoma Supreme Court
JOSEpH dUdLEy, veterans Justice Outreach Specialist, Oklahoma City veterans Administration Medical Center dEvAN BROTHERTON, Tulsa County veterans Treatment Court Liaison/Readjustment Counselor, Jack C. Montgomery veterans Administration Medical Center CATHERINE BURTON, ESQ., Assistant district Attorney, Oklahoma County,
pAULA wILLCOx, veterans Justice Outreach Specialist
8:30 – 5:30 PANEL C: A FAIR, IMPARTIAL, ANd INdEPENdENT JUdICIARY
Centennial Ballroom
8:30 – 12:30 HIsTORICAL ANALYsIs
MOdERATOR: HONORABLE pHILLIp LUJAN, (Kiowa/
Taos-Pueblo), presiding Judge, Citizen potawatomi Nation Tribal Court
BRUCE FISHER, Administrative programs Officer, Oklahoma Historical Society
TERRy wEST, ESQ., general Counsel, Oklahoma Council on Judicial Complaints
MICKEy EdwARdS, director, Aspen Institute-Rodel Fellowships in public Leadership
THOMAS S. wALKER, (Wyandotte/Cherokee), Appellate Magistrate of the Court of Indian Offenses for the Southern plains Region of Tribes, district Judge, (ret.), Brigadier general (ret.), Oklahoma National guard CATHy CHRISTENSEN, ESQ., past president (2012), Oklahoma Bar Association
1:15 – 2:30 OPENING CEREMONY ANd KEYNOTE AddREss Grand Ballroom d-F
MASTER OF CEREMONIES – HONORABLE RUdOLpH HARgRAvE, Justice, Oklahoma Supreme Court, Retired pRESENTATION OF FLAgS
HONOR gUARdS:
Absentee Shawnee veterans Association Kiowa Black Leggings
THE sOvEREIGNTY sYMPOsIUM AGENdA
The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court.
dRUM: SOUTHERN NATION
CAMp CALL: CHIEF gORdON yELLOwMAN, (Cheyenne) INvOCATION: BISHOp ROBERT E. HAyES JR., United Methodist Bishop of Oklahoma
wELCOME: HONORABLE MARy FALLIN, governor of Oklahoma
wELCOME: JAMES T. STUART, president, Oklahoma Bar Association
wELCOME ANd INTROdUCTION OF JUSTICE
SANdRA dAy O’CONNOR: HONORABLE TOM COLBERT, Chief Justice, Oklahoma Supreme Court
KEYNOTE: HONORABLE sANdRA dAY O’CONNOR, Justice, supreme Court of the United states, Retired
AddRESS: HONORABLE TOM COLE, (Chickasaw),
United States House of Representatives, Oklahoma district Four pRESENTATION OF AwARdS, HONORABLE yvONNE KAUgER, Justice, Oklahoma Supreme Court
HONOR ANd MEMORIAL SONgS: SOUTHERN NATION CLOSINg pRAyER: BISHOp wILLIAM wANTLANd, (Seminole, Chickasaw, Choctaw), Chief Justice, Seminole Nation Supreme Court, former Bishop of the diocese of Eau Claire
Wednesday Afternoon
4.5 CLE credits / 1 ethics included 2:30 – 2:45 Tea / Cookie Break for all Panels
2:45 – 5:30 PANEL A : TRIBAL ECONOMIC dEvELOPMENT (A Continuation of the Morning Panel) Crystal Room TRIBAL ANd LOCAL GOvERNMENT COOPERATION
MOdERATOR: dR. JAMES C. COLLARd, director of planning and Economic development, Citizen potawatomi Nation
HONORABLE JOHN A. BARRETT, (Citizen Potawatomi Nation), Chairman, Citizen potawatomi Nation
HONORABLE wALLACE COFFEy, (Comanche), Chairman, Comanche Nation of Oklahoma
d. JAy HANNAH, (Cherokee), Executive vice president, Financial Services, BancFirst
HONORABLE FREd L. FITCH, Mayor, Lawton, Oklahoma HONORABLE wES MAINORd, Mayor, Shawnee, Oklahoma CAROLyN STAgER, Executive director, Oklahoma Municipal League
2:45 – 5:30PANEL B: THE EssENTIALs OF TRIBAL sELF– GOvERNMENT ANd sOvEREIGNTY
Grand Ballroom A-B
MOdERATORS: HONORABLE JERRy gOOdMAN, Oklahoma Court of Civil Appeals
ALExANdER T. SKIBINE, (Osage), S.J. Quinney professor of Law, S.J. Quinney College of Law, University of Utah ROBERT J. MILLER, (Eastern Shawnee), professor of Law, Lewis and Clark Law School
ELIZABETH A. KRONK, (Sault Ste. Marie Tribe of Chippewa
Indians), Associate professor of Law, University of Kansas School of Law, director, Tribal Law and government Center, Affiliated professor, Indigenous Studies
gEORgE T. SKIBINE, ESQ., (Osage), SNR denton LINdSAy ROBERTSON, professor of Law, University of Oklahoma College of Law, Faculty director, American Indian Law and policy Center, and Associate director, Inter–American Center for Law and Culture
CHAd SMITH, ESQ., (Cherokee), Chad Smith Consulting JOSE FRANCISCO CALI TZAy, (Myan Caqchikel), 2013 Fellow in Comparative and Indigenous peoples Law, University of Oklahoma College of Law
2:45 – 5:30 PANEL C: A FAIR, IMPARTIAL, ANd INdEPENdENT JUdICIARY (A Continuation of the Morning Panel) - Centennial Ballroom
MOdERATOR: HONORABLE pHILLIp LUJAN, (Kiowa/
Taos–Pueblo), presiding Judge, Citizen potawatomi Nation Tribal Court
2:45 – 3:15 ETHICs AddREss
HONORABLE JOHN REIF, vice-Chief Justice, Oklahoma Supreme Court
3:15 – 4:45 THE JUdICIAL NOMINATING COMMIssION ANd JUdICIAL RETENTION
CO-MOdERATOR: dEBORAH REHEARd, ESQ., past president (2011), Oklahoma Bar Association, Member, Judicial Nominating Commission
dAvId HILL, Kimray Corporation, Former Member, Oklahoma Judicial Nominating Commission
BARRy SwITZER, Former Member, Oklahoma Judicial Nominating Commission
JENNy dUNNINg, Oklahoma Judicial Nominating Commission
HEATHER BURRAgE, ESQ., Chairperson, Oklahoma Judicial Nominating Commission
wILLIAM p. BOwdEN, Major general (ret.), United States Air Force
4:45 – 5:30 CONvERsATION: HONORABLE sANdRA dAY O’CONNOR, Justice, supreme Court of the United states, Retired
ROBERT HENRy, president, Oklahoma City University
2:45 – 5:30 PANEL d: TRUTH ANd RECONCILIATION
MOdERATOR: HONORABLE NOMA gURICH, Justice, Oklahoma Supreme Court
BISHOp ROBERT E. HAyES, JR., Bishop of the United Methodist Conference of Oklahoma
REvERENd dR. dAvId wILSON, (Choctaw) United Methodist Conference Superintendent, Oklahoma Indian Missionary Conference
CHIEF gORdON yELLOwMAN, (Cheyenne), director, Cheyenne and Arapaho Tribes Language program
C. BLUE CLARK, (Muscogee Creek), professor of History, Native American Legal Research Center, Oklahoma City University CHIEF HARvEy pRATT, (Cheyenne), Oklahoma State Bureau of Investigation
6:30 RECEPTION – UNvEILING OF THE PAINTING HONORING JUsTICE sANdRA dAY O’CONNOR Oklahoma Judicial Center – 2100 North
Lincoln Boulevard
Thursday Morning
4 CLE credits / 1 ethics included
7:30 – 4:30 Registration (Honors Lounge) 8:00 – 8:30 Complimentary Continental Breakfast
10:30 – 10:45 Morning Coffee / Tea Break
8:30 – 12:00 PANEL A: GAMING - Grand Ballroom d-E
CO-MOdERATORS: MATTHEw MORgAN, (Chickasaw), gaming Commissioner, Chickasaw Nation
NANCy gREEN, ESQ., (Choctaw), green Law Firm
8:30 – 9:15 REMARKs
HONORABLE TRACIE STEvENS, (Tulalip), Chair, National Indian gaming Commission
ERNEST STEvENS, JR., (Oneida), Chair, National Indian gaming Association
9:15 – 10:30 COMPACT NEGOTIATIONs ANd OKLAHOMA IssUEs UPdATE
JACQUE SECONdINE HENSLEy, (Kaw), Native American Liaison, Office of governor Mary Fallin
STEvE MULLINS, ESQ., general Counsel, Office of governor Mary Fallin
JEFFREy CARTMELL, ESQ., deputy general Counsel, Office of governor Mary Fallin
10:45 – 12:00 TRIBAL/sTATE OF OKLAHOMA RELATIONsHIP – FEEs ANd TAXEs, PROCEdUREs, IMPACT OF GAMING dEvELOPMENT
wILLIAM NORMAN, ESQ., (Muscogee Creek), Hobbs Straus, dean and walker
gARy pITCHLyNN, ESQ., (Choctaw), pitchlynn Law Firm dEAN LUTHEy, ESQ., gable gotwals, general Counsel Oklahoma Indian gaming Association
10:30 – 11:30 BOOK sIGNING JUsTICE sANdRA dAY O’CONNOR – OUT OF ORDER: STORIES FROM THE HISTORY OF THE SUPREME COURT
8:30 – 12:30 PANEL B: CRIMINAL LAW/CROss dEPUTIZATION Grand Ballroom A-B
MOdERATOR: HONORABLE SANFORd C. COATS, ESQ., United States Attorney, western district of Oklahoma ARvO MIKKANEN, ESQ., (Kiowa/Comanche), Assistant U.S. Attorney, western district of Oklahoma
KURT g. gLASSCO, district Judge, district Court of Tulsa County
HONORABLE dAvId LEwIS, Chief Judge, Oklahoma Court of Criminal Appeals
8:30 – 12:00 PANEL C: TRIBAL LANGUAGE PREsERvATION IN THE TWENTY-FIRsT CENTURY - Crystal Room
MOdERATOR: HONORABLE CHARLES TATE, (Chickasaw), Supreme Court Justice for the Kickapoo Tribe of Oklahoma, former Special Judge, district Court of Carter County BLAKE wAdE, Chief Executive Officer, The American Indian Cultural Center and Museum, president, Oklahoma Business Roundtable
JEROd IMpICHCHAACHAAHA’ TATE, (Chickasaw), Composer CHIEF gORdON yELLOwMAN, (Cheyenne), director, Cheyenne and Arapaho Tribes Language program HONORABLE gREg BIgLER, (Yuchi), district Judge, Muscogee-Creek Nation
HOLLy dAvIS, (Cherokee), Cherokee Immersion Charter School vON ROyAL, Executive director, One-Net
8:30 – 12:00 PANEL d: THE sTATUs OF TRUsT IssUEs IN THE
WAKE OF JUdICIAL dECIsIONs - Centennial Ballroom
CO-MOdERATORS: HONORABLE JOHN REIF, vice-Chief Justice, Oklahoma Supreme Court
LEAH HARJO wARE, (Muscogee Creek), ESQ.
STACy LEEdS, (Cherokee), dean, University of Arkansas School of Law, Commissioner, United States Trust Commission MICHAEL SMITH, deputy Bureau director, Field Operations, United States department of the Interior, Bureau of Indian Affairs
JIM JAMES, deputy director of Field Operations, United States department of the Interior, Office of Special Trustee for American Indians
dAvId SMITH, ESQ., Kilpatrick, Townsend and Stockton MELOdy MCCOy, ESQ., (Cherokee), Native American Rights Fund
wILLIAM RICE, (Keetoowah), Associate professor of Law, University of Tulsa College of Law
MICHAEL ANdERSON, ESQ., (Muscogee Creek)
Thursday Afternoon
4 CLE credits / 0 ethics included 3:30 – 3:45 Tea / Cookie Break for all panels 1:30 – 3:30 PANEL A: GAMING (A Continuation of the
Morning Panel) - Grand Ballroom d-E
CO-MOdERATORS: MATTHEw MORgAN, (Chickasaw), gaming Commissioner, Chickasaw Nation
NANCy gREEN, ESQ., (Choctaw), green Law Firm
1:30 – 3:30 sOvEREIGNTY IssUEs ANd INTERNET GAMING – JURIsdICTION, OFF REsERvATION, ECONOMIC ANALYsIs, sOCIAL GAMING, sTRATEGIEs
ERNEST STEvENS, JR., (Oneida), Chair, National Indian gaming Association
JAMIE HUMMINgBIRd, (Cherokee), Cherokee Nation gaming Commission, director and Chairman of the National Tribal gaming Commission Regulators
ALAN MEISTER, pH.d., principal Economist, Nathan Associates, Inc.
d. MICHAEL MCBRIdE, III, ESQ., Crowe & dunlevy dEAN LUTHEy, ESQ., gable gotwals, general Counsel Oklahoma Indian gaming Association
3:45 – 5:00 LANd INTO TRUsT ANd OTHER REGULATORY IssUEs – CARCIERI, ROLEs OF NIGC ANd BIA, COMPET-ING INTEREsTs, TAXATION IssUEs, NIGC UPdATE
HONORABLE TRACIE STEvENS, (Tulalip), Chair, National Indian gaming Commission
SHEILA MORAgO, (Gila River), Executive director, Oklahoma Indian gaming Association
ELIZABETH HOMER, ESQ. (Osage), Homer Law gARy pITCHLyNN, ESQ. (Choctaw), pitchlynn Law Firm wILLIAM NORMAN, ESQ., (Muscogee Creek), Hobbs Straus, dean and walker
1:30 – 5:00 PANEL B: THE ICWA ANd OTHER CHILdREN’s IssUEs - Crystal Room
MOdERATOR: HONORABLE JOHN FISCHER, Oklahoma Court of Civil Appeals
STEvEN HAgER, ESQ., Oklahoma Indian Legal Services SUE TATE, Court Improvement project Coordinator, Oklahoma Administrative Office of The Courts
SUSAN wORK, ESQ., Assistant Attorney general, Cherokee Nation of Oklahoma
ANASTASIA pITTMAN, (Seminole), Oklahoma House of Representatives
KELLy STONER, (Cherokee), Instructor in Law, director of the Native American Legal Resources Center, Oklahoma City University
RITA HART, (Choctaw and Jicarilla Apache), OKdHS Tribal program Manager
1:30 – 5:00 PANEL C: THE TRIBAL LAW ANd ORdER ACT- THE HOPI PERsPECTIvE - Grand Ballroom A-B MOdERATOR: HONORABLE dAvId LEwIS, Chief Judge, Oklahoma Court of Criminal Appeals
HONORABLE LEROy SHINgOITEwA, (Hopi), Chairman, Hopi Tribe, Kykotsmovi, Arizona
JILL ENgEL, ESQ., Chief prosecutor, Hopi Tribe, Kykotsmovi, Arizona
ROBERT J. LyTTLE, ESQ., general Counsel, Hopi Tribe, Kykotsmovi, Arizona
MARILyN TEwA, (Hopi), Mishongnovi village Representative, Kykotsmovi, Arizona
MERvyN yOyETEwA, (Hopi), Mishongnovi village Representative, Kykotsmovi, Arizona
JOHN TUCHI, Chief Assistant United States Attorney, phoenix, Arizona
1:30 – 5:00 PANEL d: dEPARTMENT OF THE INTERIOR sECRETARIAL COMMIssION ON INdIAN TRUsT AdMINIsTRATION ANd REFORM - Centennial Ballroom
The five-member Secretarial Commission will share its drafts recommendations regarding trust management and administration, and invite feedback from attendees. MOdERATOR: STACy LEEdS, (Cherokee), dean, University of Arkansas School of Law, Commissioner, United States Trust Commission
dR. pETERSON ZAH, (Diné/Navajo), Last Chairman of the Navajo Tribal Council, First Elected president of the Navajo Nation
TEx g. HALL, (Mandan, Hidatsa, and Arikara Nation), Chairman, Three Affiliated Tribes, past president of the National Congress of American Indians, Chairman of the Inter Tribal Economic Alliance, Chairman of the great plains Tribal Chairmen’s Association
ROBERT ANdERSON, (Minnesota Chippewa Tribe Bois Forte
Band), professor of Law and director of the Native American Law Center at the University of washington, Oneida Nation visiting professor of Law, Harvard Law School
LIZZIE MARSTERS, Chief of Staff to the deputy Secretary of the Interior
A MEETINg OF THE dEpARTMENT OF THE INTERIOR SECRETARIAL COMMISSION ON INdIAN TRUST AdMINISTRATION ANd REFORM wILL BE HELd AT THE
OKLAHOMA JUdICIAL CENTER, 2100 NORTH LINCOLN BOULEvARd, OKLAHOMA CITy, OKLAHOMA
ON JUNE 7, 2013 AT 8:30 AM
Commission Meetings are open to the public and information about meetings is posted to:
2013 OK CR 7
THE sTATE OF OKLAHOMA, Appellant, v. ROBERT HARRELL BAss, JR., Appellee.
Case No. s-2012-363. May 1, 2013 sUMMARY OPINION sMITH, vICE PREsIdING JUdGE:
¶1 On January 17, 2011, Robert Harrell Bass, Jr. was charged by Information in the district Court of Sequoyah County, Case No. CF-2011-26, with Trafficking in Illegal drugs (marijua-na), under 63 O.S.Supp.2007, § 2-415 (Count I), and Misdemeanor possession of drug para-phernalia, under 63 O.S.2011, § 2-405 (Count II).1
On February 3, 2011, Bass filed a Motion to Quash, Suppress, and dismiss.2 On February 15,
2011, a preliminary hearing was held before the Honorable L. Elizabeth Brown, Associate dis-trict Judge. The State announced at the hearing that it would amend Count I to “possession with Intent.” At the conclusion of the hearing, the Honorable L. Elizabeth Brown denied Bass’ motion to suppress, overruled his demurrer, and bound Bass over for trial on the Count I charge of possession with Intent to distribute. On February 16, 2011, the State filed an Amend-ed Information, amending Count I to posses-sion of Controlled drug with Intent to distrib-ute (marijuana), under 63 O.S.2011, § 2-401.
¶2 On March 24, 2011, Bass filed a new Motion to Quash, Suppress and dismiss.3 On
April 19, 2012, a hearing was held on this motion before the Honorable J. Jeffrey payton, district Judge. The court noted that it had reviewed the transcript of the preliminary hearing, a video of the stop, and the filings of the parties and then announced that it was granting Bass’ motion to suppress, without allowing any argument from the parties.4 The
court did not, however, dismiss the case against Bass. The State now appeals the district court’s grant of Bass’ motion to suppress, under 22 O.S.Supp.2011, § 1053(5), and the matter is properly before this Court.5
¶3 The State raises the following proposi-tions of error in its appeal:
I. The Appellee does not have standing to challenge the search of the vehicle.
II. The appellee’s rights were not violated because his detention and subsequent search of the vehicle were reasonable under the law and Miranda does not
apply.
¶4 In proposition I, the State argues that Bass does not even have standing to challenge the search of the van, because he was not an autho-rized driver of the van. The State cites both
Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), and Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), in support of its “standing” argument. yet in
Carter, the Supreme Court described the “stand-ing” approach to the question of who can prop-erly assert a Fourth Amendment challenge to a search or seizure as “an analysis that this Court expressly rejected 20 years ago in Rakas.” 525 U.S. at 87, 119 S.Ct. at 472 (citing Rakas); see
Rakas, 439 U.S. at 139, 99 S.Ct. at 428 (“[w]e think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably inter-twined concept of standing.”).
¶5 Nevertheless, the State is raising a plau-sible claim that because Bass was not listed as an authorized driver on the rental contract for the van, he did not have a reasonable expecta-tion of privacy regarding the contents of that van. In Carter, the Supreme Court recognized as follows:
[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has “a source outside of the Fourth Amendment, either by reference to con-cepts of real or personal property law or to understandings that are recognized and permitted by society.”
525 U.S. at 88, 119 S.Ct. at 472 (quoting Rakas, 439 U.S. at 143 n.12, 99 S.Ct. at 430 n.12).6
¶6 The State argues that Bass was “commit-ting the felony of unauthorized use of a vehi-cle.” The record, however, does not establish this claim. The record establishes only that Bass was not the named renter of the van, nor was he
listed as an authorized driver, and that the van was not reported stolen. The only evidence in the record regarding whether the person listed on the rental contract authorized Bass to drive the van is Bass’ statement to Officer Cody Hyde that the named renter did authorize him to drive the van. Hence the question before this Court is whether the driver of a rental vehicle, who is not listed on the rental contract for that vehicle, but who claims to have been given per-mission to drive the vehicle by the person listed on the contract, has a reasonable expectation of privacy in the contents of that vehicle. Thus this is not a case where the vehicle stopped is deter-mined to be stolen or where the driver admits that he or she had no legal right to be driving the vehicle at issue.
¶7 In United States v. Soto, 988 F.2d 1548 (10th Cir. 1993), the court considered whether a driver who asserted that the car he was driving had been loaned to him by his uncle, whose name was on the car’s registration, had a pro-tected Fourth Amendment privacy interest in the car.7 The Soto court found that “[w]here the
defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle.” Id. at 1552 (quoting United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990)). The Soto court then concluded that because the defendant had produced a registration bearing the name “Cor-ral” and stated that Mr. Corral had loaned him the car, in combination with the fact that the car had not been reported stolen, the defendant had a sufficient expectation of privacy in the vehicle to challenge a search of that vehicle in a motion to suppress.8
¶8 In Parker v. State, 182 S.w.3d 923, 924 (Tex. Crim. App. 2006), the Texas Court of Criminal Appeals recently addressed a situation where the driver of a car stopped for “following another car at an unsafe distance” was driving a rental car that had been leased by his girl-friend. The driver was not on the rental agree-ment.9 The court stated, “The question in the
case before us is whether someone driving a rental car with permission only from the per-son who rented the car has an expectation of privacy that society is prepared to recognize as reasonable.” Id. at 926. The Parker court reviewed authority from the United States Supreme Court, other Texas cases, and other jurisdictions, id. at 925-26, and rejected the approach of focusing upon whether the car rental contract allowed
the renter to allow others to drive the vehicle.10
The court then concluded that under the factual circumstances of that case, “society would rec-ognize as reasonable Appellee’s expectation of privacy in the use of his girlfriend’s rental car with her permission even though he was not listed as an authorized driver on the rental agreement.” Id. at 927.
¶9 given these authorities and the analysis therein, this Court declines to find that Bass, who was in sole possession of the van he was driving, did not have a reasonable expectation of privacy in the contents of the van. Although Bass was not listed on the rental contract for the van, he told Officer Hyde that the person listed on the contract gave him permission to drive the van; and the record contains no evi-dence to the contrary. Furthermore, the rental agency confirmed that the van had not been reported stolen. Under these circumstances, we find that Bass had a right to challenge the search of the van, which led to the discovery of the marijuana that Bass was then charged with possessing.11
¶10 In proposition II, the State argues that the district court abused its discretion in grant-ing Bass’ motion to suppress, because the stop of the van, detention of Bass, and subsequent search of the van were all reasonable and proper. This Court reviews the district court’s grant of Bass’ motion to suppress for abuse of discretion. See State v. Love, 1998 OK CR 32, ¶ 2, 960 p.2d 368, 369 (“In appeals prosecuted pur-suant to 22 O.S.1991, § 1053, this Court reviews the trial court’s decision to determine if the trial court abused its discretion.”).
¶11 Officer Hyde’s original stop of the white van was clearly a valid traffic stop. Bass does not challenge the validity of the original stop, which was based upon Hyde’s observation that the van was following another vehicle too closely and that it had crossed over the “fog line” onto the shoulder. This valid traffic stop ended, however, when Hyde gave Bass the warnings that he had written up for him, handed Bass his license, and told him to “be careful.”
¶12 In State v. Goins, 2004 OK CR 5, 84 p.3d 767, this Court addressed the question of when an officer may continue to question a person originally detained for a valid traffic stop, after the initial traffic stop has concluded. we found that an officer can continue to question a driver after a valid traffic stop has concluded in two
specific situations: “First, the officer may detain the driver for questioning unrelated to the ini-tial stop if he has an objectively reasonable and articulable suspicion illegal activity has oc-curred or is occurring. Second, further ques-tioning unrelated to the initial stop is permis-sible if the initial detention has become a con-sensual encounter.” Id. at ¶ 13, 84 p.3d at 770 (quoting United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998)). The Supreme Court has recognized that the issue of whether a detaining officer has an adequate and objective basis for detaining an individual suspected of wrongdoing is based upon “the totality of the circumstances.” See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002).
¶13 After the traffic stop was over and Bass had just exited Hyde’s OHp vehicle, Hyde asked Bass if he would mind answering a few more questions. when Bass then voluntarily got back in Hyde’s car, a consensual encounter began. during this encounter, Bass voluntarily answered Hyde’s question about whether he had any weapons or anything illegal in the van. (Bass said “no.”) Hyde then asked Bass for per-mission to search the van, but Bass said “no” and asked if he could leave. Hyde then told Bass that he was not free to leave and that he needed to stay in the patrol car. The consensual encoun-ter ended at this time; and the question for this Court is whether, at this point, Hyde had ade-quate, articulable “reasonable suspicion” that illegal activity had occurred or was occurring, in order to detain Bass any longer.
¶14 This Court notes that it is irrelevant to the legality of the ensuing detention that Offi-cer Hyde originally attempted to get Bass to engage in a consensual encounter and to vol-untarily agree to a search of his van. There is nothing improper in an officer — who may also have adequate reasonable suspicion to detain a particular individual — initially attempting to prolong his interaction with that person (whom he suspects of illegal activity) through the vol-untary consent of that person. This is what Hyde attempted to do in the current case. An officer who has both adequate reasonable sus-picion and voluntary consent can feel quite comfortable that his continuing encounter with the stopped individual is lawful and is unlikely to be found improper at a later time.
¶15 In the district court’s brief comments at the time it granted Bass’ motion to suppress and in the court’s later written findings, the
court appears troubled (and even offended) by the fact that Officer Hyde “released” Bass to go and then, just moments later, detained him — without any new suspicious behavior on the part of Bass. This Court emphasizes that the legal question remains whether, at the point Hyde detained Bass, the totality of the circum-stances provided Hyde with an adequate, par-ticularized, and objective basis for doing so. This Court does not hesitate to find that Officer Hyde had an adequate reasonable suspicion of Bass under this standard.
¶16 Bass originally told Officer Hyde that he himself rented the white van, yet he was unable to produce the rental contract. A short time later, Hyde learned from the rental company that it was not Bass who actually rented the van, but someone else — and that the van was supposed to be returned in San Francisco in four days, even though Bass was going east and had stated that he was headed home to North Carolina. The fact that Bass then changed his story and said that yes, the other person did actually rent the van—and that they had actu-ally been together in San Francisco, though Bass had earlier stated he was traveling alone — but that the other person rented the van for
Bass, only increased the suspiciousness of Bass’ situation. The State emphasizes Hyde’s testi-mony about how nervous Bass appeared dur-ing the stop — that his hands were shakdur-ing; his voice was cracking; he had visible sweat beads on his face, etc. This Court finds that Hyde’s testimony in this regard supports our conclu-sion herein, but that Bass’ lies and shifting stories are the most important factors in this Court’s determination that Hyde did have adequate reasonable suspicion to detain Bass.
See State v. Paul, 2003 OK CR 1, ¶ 3, 62 p.3d 389, 390 (inconsistent statements about destination and questionable proof of authority to operate vehicle provide reasonable suspicion).
¶17 In its 7/26/12 “Findings of Fact and Conclusions of Law,” the district court found that “Bass’s actions in the patrol vehicle as testi-fied to by Trooper Hyde did not establish an objectively reasonable and articulable suspicion that the vehicle contained illegal contraband.” This approach, however, misunderstands the analysis at issue. First, neither Hyde nor this Court is limited to considering the “actions” of Bass while he was “in the patrol vehicle” in mak-ing the determination of whether Hyde had an adequate and objective “reasonable suspicion” at the time he told Bass that he was not free to
leave. The dishonest and shifting words of Bass, from the time Hyde first interacted with him, while Bass was still in the van, and throughout the encounter, were all part of the reasonable suspicion that developed in this case. Hence the district court unreasonably limited the basis for its reasonable suspicion analysis. In addition, the law only requires that Hyde have a reasonable suspicion that some kind of illegal activity has occurred or is occurring at the time he begins detaining Bass. The State is not required to establish a reasonable suspicion that the van “contained illegal contraband” to justify the short detention of Bass that occurred while Hyde was getting out his drug dog and taking him around the van.
¶18 This Court finds that Hyde had adequate reasonable suspicion to detain Bass for the few minutes that passed while Hyde got his trained drug detection dog out of the backseat of his OHp vehicle and then took the dog around the white van.12 when the dog then visibly
“alert-ed” on the back of the van, Hyde was justified in allowing the dog to enter the van, i.e., Hyde had probable cause to search the van, at which time the dog further alerted on certain large bags in the rear of the van.13 At that point, Hyde
had probable cause to open and search these bags, which contained multiple, separate bags of marijuana. Hyde was then authorized to arrest Bass, which he did. See Paul, 2003 OK CR 1, ¶ 3, 62 p.3d 389 (finding search of vehicle proper after drug-dog-sniff “hit” established probable cause, in factually parallel case).
¶19 The district court abused its discretion in granting Bass’ motion to dismiss. Hence the grant of Bass’ motion to suppress must be reversed, and this matter must be remanded to the district court.
decision
¶20 The decision of the district court grant-ing Bass’ motion to suppress is REvERsEd, and this case is REMANdEd to the district court for further proceedings consistent with this opinion. pursuant to Rule 3.15, Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2013), the MANdATE is
OR-dEREd issued upon the delivery and filing of this decision.
AN AppEAL FROM THE dISTRICT COURT OF SEQUOyAH COUNTy THE HONORABLE J. JEFFREy pAyTON,
dISTRICT JUdgE
ATTORNEYs IN TRIAL COURT
Matthew R. Orendorff, Attorney at Law, 206 N. Oak, p.O. Box 129, Sallisaw, OK 74955, Attor-ney for defendant
Anthony J. Evans, Assistant district Attorney, Sequoyah County d.A.’s Office, 120 E. Chicka-saw, Suite 204, Sequoyah County Courthouse, Sallisaw, OK 74955, Attorney for State
ATTORNEYs ON APPEAL
Anthony J. Evans, Assistant district Attorney, Sequoyah County d.A.’s Office, 120 E. Chicka-saw, Suite 204, Sequoyah County Courthouse, Sallisaw, OK 74955, Attorney for Appellant donn F. Baker, Attorney at Law, 319 E. dela-ware, Tahlequah, OK 74464, Attorney for Appellee
OPINION BY: sMITH, v.P.J.
LEwIS, p.J.: CONCUR
LUMpKIN, J.: CONCUR IN pART/dISSENT IN pART
C. JOHNSON, J.: SpECIALLy CONCUR A. JOHNSON, J.: CONCUR
1. Count II, which alleged possession of “plastic bags,” is not involved in the current appeal.
2. The State filed a response to this motion on February 14, 2011. 3. The State filed a response to this motion on May 12, 2011; and Bass filed a reply to this response on June 15, 2011.
4. After the State noted its intent to appeal this ruling, the prosecu-tor asked, “I would just ask [] what in particular did you find wrong with the stop?” The court responded: “He released the guy to go and then turned him around and brought him back into the vehicle and started questioning him again after about 30 minutes.” The court then added, “And it was just unreasonable.”
5. On July 26, 2012, over three months after granting Bass’ motion to suppress, the district court filed “Findings of Fact and Conclusions of Law” regarding its grant of Bass’ motion to suppress. This filing, which occurred after the record on appeal had been ordered from the district court, has been added to the record in this case pursuant to the State’s motion to amend and supplement the record on appeal.
6. In Rakas, the Supreme Court noted that this inquiry “requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” See Rakas, 439 U.S. at 140, 99 S.Ct. at 429.
7. The driver of the car (i.e., Soto) was an illegal alien and initially gave a false name and a false driver’s license. when he produced the registration for the car, it showed the owner to be a person whose last name was “Corral.” Soto then stated that Mr. Corral was his uncle and that he had loaned him the car for a trip from Chicago to Los Angeles and back. Soto was not able to provide Mr. Corral’s home address. However, when the stopping officer performed an NCIC check on the car, he learned that it had not been reported stolen. See Soto, 988 F.2d at 1550.
8. The Soto court wrote:
[d]efendant here claimed to have borrowed the car from the rightful owner, and produced a registration bearing that indi-vidual’s name. Although this evidence is not determinative of defendant’s right to possess the vehicle, absent evidence that defendant wrongfully possessed the vehicle[,] it is sufficient to confer standing on him to challenge the subsequent search of the car.
See id. at 1553.
9. In fact, the rental agreement expressly stated that the car’s renter was not allowed to permit anyone else to drive the car without the permission of the rental agency; and the defendant’s girlfriend acknowledged at the hearing on his motion to suppress that she knew
