Murrah v. City of Oklahoma City
This text of 1980 OK CR 110 (Murrah v. City of Oklahoma City) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
OPINION
This case must be reversed on two grounds: first, the court erred in its instructions; and, second, the verdict was reached by a non-unanimous jury. The trial was held in the Municipal Court of Record for the City of Oklahoma City.
Cathy Jean Murrah was convicted in that court of Driving Under the Influence of Alcohol, Case No. 77-116262, in which judgment and sentence was formally entered as a fine of Three Hundred Dollars ($300.00) on June 28, 1978.
The first police officer to arrive at the scene of appellant’s one-car accident found her trying to dislodge her car, with spinning wheels and engine running, from a traffic-signal pole. The investigating officer testified to the following indications of intoxication: The appellant smelled of alcohol, staggered, and spoke in a slurred manner. She told the officer that she had had an accident, that she had not bumped her head, and that she had not had a drink since the collision. A breathalyzer test indicated that her blood-alcohol level was 0.09 percentage.
The appellant raised several assignments of error, but only the two warranting reversal of the conviction will be discussed. First, the appellant argues that the court misinstructed on the blood-alcohol percentage levels as they relate to two different offenses: Driving Under the Influence of Alcohol and Driving While Impaired; and, further, that the court erroneously excluded an instruction on the lesser included offense, Driving While Impaired.
An instruction based on the blood-alcohol percentage levels set out in Laws 1972, Ch. 192, § 1, now 47 O.S.Supp. 1980, § 756, was requested by the appellant. Since she was being tried under a municipal ordinance rather than a state statute, and since Oklahoma City has not adopted the Section 756 percentage levels, the court could have properly refused to give any instruction on percentages. On the other hand, it would not have been error to give the requested instruction, had the judge determined that the statutory percentages were appropriate aids in defining for the jury the municipal offenses. But the trial court chose not to do either of these things. Rather, the judge gave an instruction derived from Section 756, supra, but changed the percentage levels.1
Under Section 756, a prima facie case of driving under the influence is established at a blood-alcohol level of 0.10 percentage. The appellant’s level was 0.09 percentage. While the judge need not have instructed according to Section 756, he was not justified in instructing according to [1337]*1337even stricter percentage guidelines than those provided in the state statute.
This leads us to consideration of the lesser included offense of driving while impaired, for which the blood-alcohol percentage levels of this appellant appropriate under the state statute. Although the requests and arguments presented at trial on the issue of instructions have not been adequately preserved, this is due to a missing portion of the transcript, and not through the fault of the appellant. That, however, does not prevent this Court from holding that the evidence not only justified, but in fact demanded, an instruction on the lesser included offense. This instruction was a fundamental right of the appellant, to which she was entitled whether or not she made an adequate request. See Jackson v. State, Okl.Cr., 554 P.2d 89 (1976).
Secondly, the appellant urges reversal because she was convicted by a non-unanimous six-person jury, in conformity with the Oklahoma Constitution, Article II, § 19, 22 O.S.1971, § 601; 1974 Okl.Sess.Laws, Ch. 67, § 1, (now, 11 O.S.Supp.1980, § 27-119). Recently, the United States Supreme Court held that “... conviction by a non-unanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to a trial by jury.” Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). That decision must be applied retroactively. Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980).
The only question remaining is whether the violation of the city ordinance of driving under the influence is a nonpetty offense, thus bringing it within the Burch mandate. In the case of Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Supreme Court ruled that a criminal trial by jury was required; crimes carrying possible punishments up to six months were held not to require a jury when they otherwise qualified as a petty offense; and the definition of petty offense was not provided, although a crime carrying a possible two year punishment was not petty.
Once again, in Burch v. Louisiana, supra, the United States Supreme Court failed to define petty offense.
Likewise, the State of Oklahoma has neglected to define the term petty offense. Our State Constitution provides that there is no right to a jury when the punishment is only a fine not exceeding $100.00, and that a six-person jury is adequate in misdemeanors, ordinance trials, and juvenile proceedings. See Article II, § 19. The delineation between jury and non-jury offenses could be construed as a demarcation between petty and nonpetty offenses. A similar demarcation exists in 22 O.S.1971, § 601.
The issue of confinement must be foremost in any definition of a petty offense. In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court recognized that the right to counsel must extend to any trial in which there is to be any imprisonment. [Emphasis added.] In reaching that conclusion, the Court said:
The requirement of counsel may well be necessary for a fair trial even in a petty-offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex then when a person can be sent off for six months or more. [Citations omitted.]
In that landmark decision, the Supreme Court continued in reference to another of its opinions:
. . . [A]s we said in Baldwin v. New York, 399 U.S., at 73, 90 S.Ct., at 1890 [26 L.Ed.2d 437], “the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affecting his career and his reputation.”
Footnoted in Argersinger is Marston v. Oliver, 324 F.Supp. 691, 696 (ED Va.1971) in which the federal court said,
[1338]*1338Any incarceration of over thirty days more or less, will usually result in loss of employment, with a consequent substantial detriment to the defendant and his family.
Confinement is not a small matter to the one restrained, and the fact of confinement is an adequate and desirable basis for distinguishing between petty and non-petty offenses. Therefore, it is the opinion of this writer that the Burch rule should apply to all cases in which the possible punishment includes confinement.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
1980 OK CR 110, 620 P.2d 1335, 1980 Okla. Crim. App. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murrah-v-city-of-oklahoma-city-oklacrimapp-1980.