State v. Hall
| Decision Date | 23 May 2008 |
| Docket Number | No. S-2007-19.,S-2007-19. |
| Parties | STATE of Oklahoma, Appellant v. Donald R. HALL, Michael Ray Hall, Leroy James Patton, Eldon W. McCumber, Michael S. Chaloner, William Sparks and Kenneth L. Doughty<SMALL><SUP>1</SUP></SMALL>, Appellees. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Mack Martin, Oklahoma City, OK, Counsel for Appellees McCumber, Sparks and Doughty in district court and on appeal.
Stephen Jones, Brooke A. Tebow, Oklahoma City, OK, Counsel for Appellee Patton in district court and on appeal.
Garvin Isaacs, Oklahoma City, OK, Counsel for Appellee Chaloner in district court and on appeal.
Chris Eulberg, Oklahoma City, OK, Counsel for Appellees Donald Hall and Michael Hall in district court and on appeal.
¶ 1 On June 22, 2006, Indictments were returned by the Tenth MultiCounty Grand Jury against Appellees Eldon W. McCumber, Michael S. Chaloner, William Sparks and Kenneth L. Doughty filed in the District Court of Oklahoma County, Case No., CF-2006-3998. The Indictments charged Appellees with one count of Conspiracy Against the State (21 O.S.2001, § 424) and one count of Embezzlement by Public Officer (21 O.S. 2001, § 341).
¶ 2 Indictments were also returned against Leroy James Patton, Donald R. Hall and Michael Ray Hall and filed in the District Court of Oklahoma County as Case Nos. CF-2006-3999, CF-2006-4000 and CF-2006-4002, charging one count of Conspiracy Against the State (21 O.S.2001, § 424) and one count of Embezzlement by Public Officer (21 O.S.2001, § 341) based on the same set of facts as in the cases against the other Appellees. Appellee Donald Hall was also charged separately by Indictment with Obtaining Property of Valuable Thing of Value Exceeding $500.00 by False Pretenses (21 O.S.2001, §§ 1541.1 & 1541.2), Case No. CF-2006-4001.
¶ 3 Initial appearances were made by all Appellees on June 22, 2006. Subsequently, applications for preliminary hearing were filed by Appellees and preliminary hearing was set for January 3, 2007, before the Honorable Roma McElwee, Special Judge, sitting as preliminary hearing magistrate. On September 26, 2006, the State filed a Motion to Dismiss Indictment in Favor of Prosecution by Information, in each case and moved to file felony Informations in Oklahoma County District Court, Case No. CF-2006-3998, charging all Appellees previously charged by separate Indictments in Case Nos. CF-2006-3998, CF-2006-3999, CF-2006-4000 & CF-2006-4002. The State also filed an Information in Case No. CF-2006-4001 charging Appellee Donald Hall with the same offense previously charged by Indictment (Obtaining Property of Valuable Thing of Value Exceeding $500.00 by False Pretenses). Copies of the felony Informations and copies of the Motion to Dismiss in favor of Prosecution by Information were taken to Judge McElwee on September 26, 2006. Judge McElwee did not rule on the State's motion.
¶ 4 On November 14, 2006, Appellees McCumber and Sparks filed a Motion to Quash Information and Suppress any Evidence Obtained Pursuant to Multicounty Grand Jury. The other Appellees subsequently joined in the motion. The motion alleged that the presence of two alternate grand jurors in the grand jury room while evidence was being taken was in direct violation of article II, § 18 of the Oklahoma Constitution and 22 O.S.2001, § 340(C). Appellees alleged that as a result of the constitutional and statutory violations, prejudice was presumed and the court must quash the Indictments and Informations along with all evidence elicited from the faulty grand jury. The State filed written responses to the motion.
¶ 5 On November 21, 2006, Appellee Patton filed a Motion for Release of Information Concerning the Composition of the Grand Jury. In the motion it was argued that because the grand jury was convened in violation of state constitutional and statutory provisions (art. II, § 18, and 22 O.S.2001, § 340), the evidence presented to the grand jury could not furnish the basis for the Information and/or for a finding of probable cause at the preliminary hearing. An evidentiary hearing on the motion was set for November 28, 2006 and continued to January 3, 2007.
¶ 6 Meanwhile, on December 8, 2006, a hearing was held before the Honorable Bryan Dixon, District Judge and Presiding Judge of the Tenth MultiCounty Grand Jury, at which time Judge Dixon verbally asked the parties if they could enter into a mutually agreeable written stipulation as to the use of alternates in the grand jury process and their presence or absence at various stages of the grand jury process, in an effort to alleviate the need for discovery on the issue. The joint stipulation was as follows:
1. Except as noted herein, twelve (12) regular grand jurors and two (2) alternate grand jurors were always present in the Grand Jury room during the presentation of testimony and evidence concerning the investigation of the Hinton Economic Development Authority "HEDA" and the above-named defendants. This would include the presentation of testimony and evidence taken on February 22, 2006, March 21, 2006, April 18, 2006, May 23, 2006, and May 24, 2006 and further includes the following testifying witnesses: Wesley Edens, David Fenton, Ian Purtle, Eldon McCumber, Michael Chaloner, Kenneth Doughty, Michael Hall, Bonnie Winsett, Leroy Patton and Donald Hall.
2. On May 23, 2006, during Leroy Patton's testimony, one (1) of the twelve (12) regular grand jurors left the Grand Jury room twenty (20) minutes early and did not return that day. Following Leroy Patton's testimony, this one (1) regular grand jury member also remained absent for that portion of Donald Hall's testimony that occurred on the same day which commenced at 5:20 p.m., and consisted only of questions regarding Mr. Hall's name, driver's license number, his current telephone number and his willingness to defer his testimony until the following day. On May 24, 2006, this one (1) regular grand juror was present for the remainder of Donald Hall's testimony.
3. Alternate grand jurors participated in the grand jury proceedings by asking questions of the testifying witnesses.
(O.R.194-196).
¶ 7 On January 3, 2007, a hearing was held before Judge McElwee on Appellees' motions to Quash the Indictments, Informations, and evidence presented to the grand jury. After hearing arguments, Judge McElwee granted the defense motions and quashed all evidence presented to the grand jury as inadmissible at the preliminary hearing. She also quashed the Indictments and Informations finding in part that alternate grand jurors should not have been present during evidentiary proceedings of the grand jury and the grand jury was therefore tainted by their presence, and found the Informations were not correctly filed. Although Judge McElwee specifically did not find 38 O.S.2001, § 21 unconstitutional, she was unable to "harmonize" the language of § 21, which expressly authorizes the selection and attendance by alternates at all functions of the grand jury, except for the deliberations of the grand jury, with art. II, § 18 and 22 O.S.2001, § 340.
¶ 8 The State immediately gave oral notice of intent to appeal and written Applications to Appeal the Adverse Ruling of the Magistrate were filed on January 4, 2007, in Case Nos. CF-2006-3998 & CF-2006-4001. The application was assigned to the Honorable Virgil Black, District Judge, acting as reviewing judge.
¶ 9 Judge Black held a scheduled hearing on January 19, 2007, and later filed written findings of fact and conclusions of law. He found the magistrate erred in quashing the Informations and sustained the State's application to that extent. He also found the magistrate erred to the extent her order applied the exclusionary rule to evidence "not discovered" by the grand jury. Judge Black declined to rule on whether or not the magistrate erred by quashing evidence "discovered" by the grand jury, stating that since the State had initiated an appeal that question was not before him and he should defer ruling to the Court of Criminal Appeals. The matter was remanded to the magistrate for proceedings on the State's Informations. To date, no Preliminary Hearing has been held in these cases.
¶ 10 Judge Black's ruling left undisturbed the magistrate's decision quashing the State's evidence, making it unavailable for use at the remanded preliminary hearing. On January 24, 2007, the State filed written notices of intent to appeal that portion of Judge Black's ruling not overturning the quashing of evidence "discovered" by the grand jury.
¶ 11 Appeals of the adverse ruling of the magistrate quashing all relevant grand jury evidence in Case Nos. CF-2006-3998 & CF-2006-4001, which was sustained in part and overruled in part by Judge Black, were filed with this Court, Case Nos. S-2007-106 & 107, pursuant to 22 O.S.2001, § 1089.7. Written Notices of Intent to Appeal (the quashing of the Informations, etc.) were timely filed in the District Court and with this Court pursuant to 22 O.S.Supp.2002, § 1053(1) & (5) and State v. Young, 1999 OK CR 14, 989 P.2d 949 (). At the State's request, the appeals in all of the above cases were consolidated on March 28, 2007, under this Court's Case No. S-2007-19 with cross-reference to the other above mentioned appellate cases.3
¶ 12 The State of Oklahoma raises the following propositions of error in support of this appeal:
I. The Magistrate erred by suppressing all evidence received by the Grand Jury and the reviewing judge erred by not fully setting aside the order of the Magistrate quashing all...
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