Crider v. State ex rel. District Court of Oklahoma County , 72 O.B.A.J. 1203 ( 2001 )

ORDER GRANTING WRIT OF PROHIBITION

{1 Benjamin Harry Crider, II, was tried by jury and convicted of First Degree Murder in violation of 21 0.8.1991, § 701.7(A), in the District Court of Oklahoma County, Case No. CF-98-2944. In accordance with the jury's recommendation the Honorable Tammy Bass-Jones sentenced Crider to life imprisonment with the possibility of parole. Crider filed his Petition in Error with this Court on January 19, 2000. On November 1, 2000, the State asked Judge Bass-Jones to enter a protective order in this case. Crider responded and claimed Judge Bass-Jones did not have jurisdiction to enter a protective order. After a December 5, 2000, hearing on the jurisdictional issue, Judge Bass-Jones issued an Order finding the trial court had jurisdiction to consider the State's request for a protective order, but stayed further proceedings pending this Court's decision on Crider's Petition for Writ of Prohibition or Mandamus. Crider subsequently filed this Petition on January 4, 2001. The Respondent filed her response on March 21, 2001.

12 The Oklahoma Court of Criminal Appeals has exclusive appellate jurisdiction in criminal cases.¹ Onee an appeal has been perfected in this Court, the trial court has no authority in the case until this Court's mandate has issued, restoring jurisdiction in the trial court.² An appeal is perfected by timely filing the Petition in Errors³ Crider filed his Petition in Error on January 19, 2000, and his Judgment and Sentence was imposed on October 22, 1999. His Petition in Error was filed within the ninety-day limit and is timely,⁴ and this Court has jurisdiction in this case.

13 However, consistent with this, the trial court may instruct jurors to report any unwelcome attention regarding jury service after it ends⁵ If a juror reports harassment, the trial court has the inherent authority to issue a protective order, upon application and for cause, prohibiting a named person or persons from having further contact with that juror. That was not the request made in this case. According to the record before this Court, two jurors filed affidavits complaining of unwelcome contact with at least two investigators from the Oklahoma Indigent Defense System (OIDS). The affidavits state the jurors felt harassed and did not wish to sign affidavits for OIDS. Neither affidavit suggests the OIDS investigators approached the jurors after they were asked to stop. An affidavit from an OIDS investigator describes conversations with and attempts to contact the jurors, and states the investigator ceased contact after the jurors said they did not want further contact with OIDS representatives.

14 In response to the jurors' concerns the State requested a protective order. The request noted OIDS investigators had questioned most of the Crider jurors, and asked the District Court to prohibit OIDS employees from further questioning or harassing "these jurors" concerning incidents that may have occurred during deliberations.⁶ In style and scope, this request exceeds the District Court's authority. We note that defense representatives are entitled to contact jurors as part of the investigation of possible appellate issues, in order to determine whether any impermissible outside influence was introduced into deliberations. We also note that jurors are not required to visit with defense representatives, and if a juror indicates that he or she does not wish to speak with the defense representative that is his or her prerogative. Such juror contacts are by their nature sensitive and the juror's wishes should at all times be respected. Individual jurors, or the State, may request that separate protective orders be entered against named representatives of the defendant on behalf of jurors who report harassment. The trial court may not, however, issue a blanket protective order against all OIDS employees on behalf of two or more unnamed jurors, in a criminal case which has resulted in conviction and is on appeal.

15 Crider's appeal has been perfected. The Oklahoma County District Court under the specific facts of this case improperly granted the State's request for protective orders. Crider's Petition for Prohibition is GRANTED.⁷

1 6 IT IS SO ORDERED.

17 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 19th day of April, 2001.

/s/ Gary L. Lumpkin GARY L, LUMPKIN, Presiding Judge, Concur in Result

/s/ - Charles A. Johnson CHARLES A. JOHNSON, Vice Presiding Judge

Is) Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

/s/ Steve Lile STEVE LILE, Judge

1 . 20 0.$.1991, § 40; Okla. Const. art. VII § 4.

2 . Tilley v. State ex rel. Scaggs, 1993 OK CR 52, 869 P.2d 847, $49 (district court without authority to proceed in case pending outcome of state appeal); Standridge v. State, 1985 OK CR 64, 701 P.2d 761, 765 (trial court without authority to rule on motion for new trial five months after petition in error filed and jurisdiction assumed by this Court); Yates v. Brock, 1974 OK CR 84, 521 P.2d 1396, 1400 (trial court has no jurisdiction over remand for new trial until this Court issues mandate on appeal). See 22 0.S$.1991, § 44, "'When the court from which an appeal is taken shall be deprived of jurisdiction of the cause pending such appeal, and when such case shall have been determined by the Criminal Court of Appeals [sic], the mandate of the Criminal Court of Appeals shall be returnable to the court of which jurisdiction has been given over said cause." [Emphasis added.]

3 . Rules 2.1(A)1, 3.1, 3.2, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001).

4 . Rule 3.1(C), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001).

5 . Cohee v. State, 1997 OK CR 30, 942 P.2d 211; Oklahoma Uniform Jury Instructions-Criminal (2nd) 10-12.

6 . - State's Request for Protective Order at 2.

7 . Crider's Application for Evidentiary Hearing on issues of juror misconduct, filed November 3, 2000, will be considered with his direct appeal.