Walker v. State , 1989 Okla. Crim. App. LEXIS 64 ( 1989 )

PARKS, Presiding Judge,

dissenting:

In this case, the majority upholds appellant’s conviction although the district judge directed a verdict of guilty. Such an action is strictly prohibited under constitutional principles:

For this reason, a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, regardless of how overwhelmingly the evidence may point in that direction. (Citations omitted)

United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977). In the case at bar, the trial judge made the following statement to the jury:

The Court has been advised that the defendant would enter into a stipulation at this time to be given to the jury that he committed the acts [as charged] ... And I would just simply instruct the Jury on the range of punishment. They would listen to what the evidence is on both sides, and then the Jury would assess the punishment in the case. And in effect what it would be is a directed verdict of guilty.

From this statment, it is abundantly clear that a directed verdict of guilty was entered against appellant. Thus, the trial judge acted outside constitutional boundaries in directing a verdict of guilty.

The majority apparently agrees that the trial judge directed a guilty verdict, but upholds appellant’s conviction by saying that he waived his right to jury trial, or in the alternative, that such error was invited. Addressing first the majority’s position that jury trial may be waived, I agree that a defendant may waive this right. But waiver of a right to jury trial is not the issue raised by appellant. Appellant asserts that the waiver of his right to a jury trial, coupled with the stipulation of facts, was tantamount to a guilty plea, thus requiring that the guidelines set forth in King v. State, 553 P.2d 529 (Okla.Crim.App.1976) must be followed. I must agree.

The situation presented in the case at bar has occurred in several other jurisidictions. Primarily, two different factual situations have been addressed: (1) directed verdicts, or some other analogous situation where the procedure is tantamount to a guilty plea, and (2) stipulations of guilt. Ingersoll v. State, 65 Md.App. 753, 501 A.2d 1373, 1377 (1986); State v. Johnson, 104 Wash.2d 338, 705 P.2d 773, 775 (1985); State v. Steelman, 126 Ariz. 19, 612 P.2d 475, 480 (Ariz.1980); In re Mosley, 1 Cal.3d 913, 83 Cal.Rptr. 809, 815, 464 P.2d 473, 479 (1970), cert. denied, 400 U.S. 905, 91 S.Ct. 144, 27 L.Ed.2d 142 (1970). The general rule which has emerged from these cases was best explained in Steelman, 612 P.2d at 480:

Submission on transcripts, sometimes known as ‘stipulated bench trials,’ or ‘slow pleas,’ are procedurally distinct from guilty pleas. In some instances, however, submissions are tantamount to a guilty plea because it is obvious, that at the time they are made, the defendant has no hope of acquittal. We have held that in such cases, ‘[d]ue process requires that the trial court make a record similar to that required by Boykin v. Alabama, to determine if the decision to submit the case ...was freely, intelligently and voluntarily made.’ (Citations omitted)

Thus, in cases where the ultimate fact of guilt is not left to the factfinder, courts have held that the trial judge, in effect, has directed a verdict. In these cases, the “directed verdict” is tantamount to a guilty plea and the procedural safeguards of Boy-kin must be followed. Otherwise, the “directed verdict” is violative of federal constitutional law. See Sparf & Hansen v. United States, 156 U.S. 51, 105, 15 S.Ct. 273, 294, 39 L.Ed. 343 (1895). If the ultimate fact of guilt is left for determination by the factfinder, the procedure is not the functional equivalent of a guilty plea, and therefore Boykin does not apply. Id. at 480. See also Ingersoll, 501 A.2d at 1376.

In the present case, the jury was specifically directed that the decision as to guilt or innocence was not to be decided by them; only a decision regarding punishment was left for their determination. Thus, there is no alternative but to find that the “directed verdict” was the functional equivalent of a guilty plea. Any other holding would violate federal constitutional principles. See Sparf, 156 U.S. at 105, 15 S.Ct. at 294; In re Mosley, 464 P.2d at 481. Because it was the functional equivalent of a guilty plea, the safegards of Boykin and King v. State, 553 P.2d 529 (Okla.Crim.App.1976) must be applied.

Addressing the issue of invited or harmless error with regard to the trial court’s actions, the United States Supreme Court, in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986), specifically stated that the harmless error doctrine enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), does not apply “if a court directed a verdict for the prosecution in a criminal trial by jury.” Hence, the majority is incorrect in stating that the error was harmless.

Lastly, I wish to comment on the rationale used by the majority to support the procedure used by the trial court. The majority implies that any other holding, such as the one suggested in this dissent, would foreclose the possibility of a “stipulated facts trial.” I again disagree. Rather than foreclose the possibility of a defendant’s stipulation to the facts, the holding suggested by this dissent would merely insure that such a stipulation was consistent with constitutional requirements. The majority disapproves this procedure because it would require a case-by-case analysis. However, when a “fact-specific decision” is required by constitutional law, it is the responsibility of this Court to render such a decision.