Williams v. City of Tulsa

BUSSEY, Judge,

dissenting.

I must dissent to the reversal of this case. For his first assignment of error, the appellant alleges that he cannot be convicted by a non-unanimous verdict. Article II, § 19 of the Constitution of Oklahoma allows a conviction in a case less than a felony by a verdict rendered by five of a six person jury, as was the result in the case before us. The appellant relies upon Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979) wherein the Supreme Court of the United States held that a five out of six verdict violated the federal constitutional right to a trial by jury when it was allowed for a non-petty offense. He does not argue, however, that this offense is non-petty, but asserts that because many criminal offenses which are “less than felonies” are non-petty in nature, a conflict exists between Art. II, § 19 and the holding in Burch, and that because such a conflict exists, this Court has no authority to construe Oklahoma’s Constitution to allow any but a unanimous verdict. I am not persuaded by this argument. Nothing in the Constitution of the State of Oklahoma is intended to conflict with any provision of the Constitution of the United States, where such provision is applicable to an

individual State. Acuff v. State, 283 P.2d 856 (Okl.Cr.1955). The Oklahoma constitutional and statutory provisions providing for a right to trial by a six-person jury authorized to reach a 5-1 verdict is limited by Burch to those misdemeanors and municipal ordinance violations which may be deemed “petty” under federal laws. Within that area those provisions remain operative and effective and bind the Court. See dissent, Murrah v. City of Oklahoma City, 620 P.2d 1335 (Okl.Cr.1980). The verdict in the case at bar violates neither the Constitution of the State of Oklahoma nor the Constitution of the United States. Therefore, I would affirm the judgment and sentence.