Magnan v. State

• Citation: 2009 OK CR 16,207 P.3d 397
• Decision Date: 22 April 2009
• Docket Number: No. D-2005-683.,D-2005-683.
• Parties: David Brian MAGNAN, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

207 P.3d 397

2009 OK CR 16

David Brian MAGNAN, Appellant v. STATE of Oklahoma, Appellee.

No. D-2005-683.

Court of Criminal Appeals of Oklahoma.

April 22, 2009.

An Appeal from the District Court of Seminole County; the Honorable George Butner, District Judge.

Silas R. Lyman II, Diane Box, Norman, OK, attorneys for defendant at plea hearing and sentencing.

Paul Smith, Assistant District Attorney, Seminole County, Wewoka, OK, attorney for State at plea hearing and sentencing.

Sandra Mulhair Cinnamon, Jamie D. Pybas, Norman, OK, John Echols, Sapulpa, OK, attorneys for appellant on appeal.

W.A. Drew Edmondson, Oklahoma Attorney General, Preston Saul Draper, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

A. JOHNSON, Vice Presiding Judge.

¶ 1 David Brian Magnan pled guilty to three counts of First Degree Murder in violation of 21 O.S.2001, § 701.7 and one count of Shooting With Intent to Kill in violation of 21 O.S.2001, § 652 in the District Court of Seminole County, Case No. CF-04-59. Before accepting the pleas, the Honorable George Butner received the results of a psychological competency evaluation and conducted an in-court competency inquiry in which he found Magnan competent to enter the pleas. At his sentencing hearing, Magnan stipulated to the aggravating circumstances pled in the State's bill of particulars, stated he had nothing to present in mitigation, waived any direct appeal, and asked to be sentenced to death for the murders. The district court judge sentenced Magnan to death on each of the murder counts and sentenced him to a term of life imprisonment on the shooting-with-intent-to-kill count.

¶ 2 Because Magnan waived his right to a direct appeal, our review here is limited to two non-waivable issues. We consider whether this crime occurred in Indian Country and so is beyond the jurisdiction of the State of Oklahoma and we conduct our statutorily required sentence review under 21 O.S. 2001, § 701.13 and Rule 9.4, Rules of the Oklahoma Court of Criminal Appeals, Title 22 Ch.18, App. (2009). The sentence review is mandatory for all death-penalty cases and is not subject to waiver. Fluke v. State, 2000 OK CR 19, ¶ 4, 14 P.3d 565, 567.

FACTS

¶ 3 On the evening of March 2, 2004, a group of family and friends, James Howard, Lucilla McGirt, Karen Wolf, Amy Harrison, and Eric Coley, gathered at Mr. Howard's rural Seminole County home to celebrate Mr. Coley's birthday. Ms. Harrison was Ms. Wolf's daughter and Mr. Howard's niece. At some point, Mr. Howard answered a telephone call from Aaron Wolf, a co-defendant in this case. As the two men argued, Ms. Harrison took the telephone in time to hear Aaron Wolf say "I am going to kill that m___ f___."

¶ 4 Later that evening, at approximately 1:00 a.m. on the morning of March 3rd, Magnan, Aaron Wolf, and Redmond Wolf, Jr., arrived at Mr. Howard's home in Magnan's car. Mr. Coley and Ms. Harrison went out of the house to meet them. As Harrison approached, Aaron Wolf told her to get out of there and gestured toward the woods behind the house. She fled. Coley tried to stop Magnan from going inside the house. During the resulting scuffle, Coley pushed Magnan to the ground. We learn what happened next from Coley's viewpoint. He saw what appeared to be a shiny gun barrel in Magnan's hand. A flash of flame erupted from the object and Coley realized he had been shot in his left side. In spite of his injury, he ran to the house and banged on windows trying to warn Howard, McGirt, and Wolf.

¶ 5 After a short while, Harrison left the hiding place she had found in the woods and gingerly moved toward the house. As she approached, she heard gunshots from inside. She heard men get into the car and drive away. Harrison found Coley outside, preparing to enter the house. Inside, Coley saw Howard bloody and lying on a bed near the kitchen. In the bedroom he found McGirt and Wolf. Both women had been shot. After returning to the kitchen and warning Harrison against going in the bedroom where her mother was, he collapsed from his injuries.

¶ 6 Despite Coley's admonition, Harrison went to check on her mother and McGirt. She found her mother and McGirt on the bed. Harrison knew her mother was dead, but saw that McGirt was still alive. She went back to the kitchen to check on Howard and found him covered in blood and apparently dead.

¶ 7 During his plea colloquy, Magnan told the district court judge that he shot Eric Coley with the intent to kill him. He said he then walked into the house where he saw James Howard lying in a bed near the kitchen. When the old man looked up at him, Magnan said "goodbye" and shot him, intending to kill him. Magnan told the court he went into the bedroom intending only to say "good-bye" to Karen Wolf, but when she "got smart" with him, he shot her, intending to kill her. Magnan admitted he next shot McGirt, who was in the bed next to Wolf, and intended to kill her as well.

¶ 8 James Howard and Karen Wolf died at the scene. Lucilla McGirt was hospitalized for approximately two weeks before she died of complications from her gunshot wounds. Eric Coley survived his gunshot injury.

DISCUSSION

I. Jurisdictional Issue

¶ 9 Magnan's attorneys contend that the crime scene is in Indian Country and therefore beyond the State's jurisdiction. This issue was not raised in the district court. Normally, an issue not raised in the trial court, and not related to our mandatory death-penalty sentence review, is waived when a defendant pleads guilty, waives appeal, and we proceed solely under 21 O.S. 2001, § 701.13. Duty v. State, 2004 OK CR 20, ¶ 20, 89 P.3d 1158, 1162. A guilty plea, however, waives only nonjurisdictional defects. Frederick v. State, 1991 OK CR 56, ¶ 5, 811 P.2d 601, 603. It does not waive a claim that a court lacks the power to adjudicate a charge against the defendant. See e.g., Forester v. State, 1927 OK CR 33, 252 P. 861, 864 (recognizing that party can never waive or consent to subject matter jurisdiction where there is no basis for court to exercise jurisdiction); Armstrong v. State, 1926 OK CR 259, 248 P. 877, 878 (holding that jurisdiction of the subject matter cannot be conferred by consent, nor can it be waived, and it may be raised at any time before or after trial, and even for the first time on appeal).

¶ 10 Recognizing that Magnan's attorneys were raising a jurisdictional issue, inadequately supported by the record below, we granted Magnan's attorneys' request for a remand to the district court for an evidentiary hearing.

¶ 11 The district court heard evidence on Magnan's Indian status, the Indian status of the victims, the precise location of the property on which the murders occurred, and the title status of that property. The district court concluded on remand that the property was not Indian Country and the State properly exercised jurisdiction over the crimes charged. The record on appeal has now been supplemented with the full record of that proceeding as well as the district court's findings of fact and conclusions of law. The parties have filed post-hearing supplemental briefs. The record is now complete and the issues fully briefed and argued.

¶ 12 Magnan's attorneys contend that the property on which the murders were committed is Indian allotment land and therefore subject only to federal jurisdiction as having occurred in Indian Country. See e.g., Cravatt v. State, 1992 OK CR 6, ¶ 7, 825 P.2d 277, 280 (holding that jurisdiction over major crimes in Indian Country is exclusively federal). Under federal law, "Indian Country" is defined as:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

18 U.S.C. § 1151 (emphasis added). "Allotment" is a term of art in Indian law describing land owned by individual Indians that is either held in trust by the United States or is subject to statutory restrictions on alienation. Ahboah v. Housing Authority of the Kiowa Tribe of Indians, 1983 OK 20, ¶ 10, 660 P.2d 625, 627; United States v. Stands, 105 F.3d 1565, 1571-72 (8th Cir.1997)(citing Felix S. Cohen's Handbook of Federal Indian Law 615-16 (Rennard Strickland et al. eds.1982)). Allotted Indian property that is burdened by restrictions against alienation constitutes Indian Country. United States v. Ramsey, 271 U.S. 467, 470-72, 46 S.Ct. 559, 560, 70 L.Ed. 1039 (1926); Ahboah, 1983 OK 20, ¶ 10, 660 P.2d at 627; United States v. Sands, 968 F.2d 1058, 1062 (10th Cir.1992).

¶ 13 The record shows that the murders in this case occurred in a house located on property that was part of the original restricted allotment of Jimpsey Tiger, a full-blooded Seminole. On Jimpsey Tiger's death in 1944, the property passed in 1/5th fractional interests to his second wife Lena Tiger, 13/16th Creek-Seminole, and four sons and daughters including daughter Kizzie Tiger, a 3/4th blood Seminole. Lena Tiger sold her 1/5th interest in the surface rights to the property to her son George William Tiger, a 3/4th blood Seminole, but expressly retained the mineral rights. In 1950, George William Tiger and his two other siblings sold their interests in the surface rights to their sister Kizzie Tiger. Thus, as of 1950, Kizzie Tiger owned all of the surface rights (1/5th acquired by inheritance and 4/5th by conveyance from her siblings) and 1/5th of the mineral rights (acquired by inheritance). In 1970, Kizzie Tiger, now Kizzie Tiger Wolf, executed a deed purporting to convey the surface rights to the property to the...