author:
HODGES, J.
      OPALA, J.,

text:
    2002 OK 21
    In re INITIATIVE PETITION NO. 366, State Question No. 689.
    No. 95,070.
    Supreme Court of Oklahoma.
    April 2, 2002.

      Matthew F. Stowe, Patton Boggs, Washington, DC, for Proponent Carol Martin. .
    Ron Kirby, Lawton, OK, Pro Se Proponent.
    James C. Thomas, Tulsa, OK, for Protestant, Delilah Christine Gentges.
    John E. Parris, Fannie Bates, Norman, OK, for Protestant Fannie Bates.
    Neal Leader, Senior Assistant Attorney General, Oklahoma City, OK, for Amicus Curia Attorney General W.A. Drew Edmondson.
    Steven M. Presson, Jackson & Presson, Norman, OK, for American Civil Liberties Union of Oklahoma Foundation, American Civil Liberties Union Foundation of Northern California, Inc., Mexican American Legal Defense and Education Fund, Asian American Legal Defense and Educational Fund, Employment Law Center of the Legal Aid Society of San Francisco.
    Julian K. Fite, David A. Mullon, Jr., Richard D. Osburn, Cherokee Nation, Tahlequah, OK, for amicus curiae Cherokee Nation.
   HODGES, J.

I. HISTORY

{1 May 10, 2000, Oklahoma State Senator Carol Martin and Oklahoma State Representative Ron Kirby (proponents) started a petition drive for Initiative Petition No. 366 to enact a new statute. The proposed statute designates English as Oklahoma's official language; requires all official documents, transactions, proceedings, meetings and publications of the State of Oklahoma and its political subdivisions to be in English only, requires the return to the general revenue fund of all money appropriated or designated for translation or printing materials in a language other than in English, and prohibits all future expenditure of funds for translation services and printing in a language other than English The petition provides for exceptions for conflicts with the federal constitution, laws, and regulations and with the Oklahoma Constitution. The petition makes an exception for educational institutions subject to rules adopted by the Board of Education and State Board of Regents.

12 Oklahoma's Attorney General, deeming the ballot title proposed by the proponents to be legally inadequate, submitted a substitute ballot title. A protest to the signatures was lodged and then abandoned. Numerous protests and letters were submitted and have been considered by this Court. The proponents attempted to withdraw Petition No. 366 after it was submitted to the Secretary of State. The motion to withdraw the petition was denied. The matter is now before this Court on the merits. The proponents have declined to submit briefs to this Court.

II ISSUES

13 The issues in this case are: (1) whether this Court should conduct a pre-election review of Petition No. 366, and (2) whether Petition No. 366 is constitutionally flawed. We hold that it is appropriate for this Court to address the constitutionally of the petition and that the petition is constitutionally flawed.

III. PROPRIETY OF REVIEW

1 4 The right of initiative petition and referendum is a right protected by the Oklahoma Constitution and Oklahoma Statutes. This right is not without limitations. This Court has entertained pre-election attacks on initiative petitions to avoid costly and unneec-essary elections. As discussed below, Initiative Petition No. 366 is fraught with infirmities. It would be a disservice to the citizens of Oklahoma to submit a petition which could not withstand a constitutional attack to a state-wide vote.

IV. BACKGROUND

15 Twenty-two states, as well as a number of municipalities, have English only laws. In contrast to Initiative Petition No. 366, most of the laws make English the official language of the governmental entity and are non-prohibitive, brief, and symbolic. Arizona adopted a constitutional provision similar to Petition No. 366. The Arizona provision was labeled as one of the most restrictive state measures. Petition No. 366 is even more restrictive than Arizona's provision. Like the Arizona provision, Petition No. 366 makes exceptions for conflicts with federal law. However, the Arizona provision made exceptions for protection of pub-lie health and safety and for the protection of the rights of criminal defendants. Petition No. 366 does not make these exceptions. The Arizona provision was declared unconstitutional by both the Court of Appeals for the Ninth Circuit and the Arizona Supreme Court.

v. CONSTITUTIONAL IMPLICATIONS

T6 In an apparent attempt to avoid the constitutional infirmaries of the Arizona provision, Petition No. 366 makes a specific exception for conflicts with the United States and Oklahoma constitutions and with federal statutes and regulations. Petition No. 366 states that it should not be construed to limit the constitutional rights of "any citizen, state employee, private business or corporation . . . ," These two provisions are mere sur-plusage because a statutory provision that conflicts with either the United States Constitution or the Oklahoma Constitution is unenforceable. In assessing the First Amendment infringements of the Arizona provision, the Arizona Supreme Court and the Ninth Cireuit Court of Appeals did not consider the exception for conflicts with federal law as curing the constitutional abridge-ments.

A. Free Speech and Right of Petition

17 We first note that the Oklahoma Constitution is more protective of speech than is the United States Constitution. Article 2, section 22 of the Oklahoma Constltutmn provides:

Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right: and no law shall be passed to restrain or abrldge the hberty of speech or of the press

Article 2, section 3 of the Oklahoma Constitution provides:

. The people have the right peaceably to assemble for their own good, and to apply to those invested with the power of government for redress of grievances by petition, address, or remonstrance.

18 In order to determine whether these constitutional provisions have been abridged, it is necessary to ascertain the exact impact of section B of Petition No. 366. Section B of the petition requires "[alll official documents, transactions, proceedings, meetings, or publications issued, which are conducted or regulated by, on behalf of, or representing the state and all of its political subdivisions shall be in the English language."

T9 Rules of statutory construction require words be given their plain meaning considering the context." ."Official" means "[plertaining to an office; invested with the character of an officer; proceeding from, sanctioned by or done by, an officer." An "official act" is "[olne done by an officer in his official capacity under color and by virtue of his office." Applying the rules of statutory construction, section B would prohibit all governmental communications, both written and oral, by government employees, elected officials, and citizens, of all words, even those which are of common usage, in any language other than English when conducting state business. This construction of section B is in keeping with the encompassing words of the petition.

T 10 By restricting all governmental communications to the Enghsh language, seetion B seeks to prevent citizens of limited English proficiency from effectively communicating with government officials and from receiving, when available, vital information about government. This restriction is prohibited by both sections 3 and 22 of article 2 of the Oklahoma Constitution.

111 In Gaylord, this Court discussed the importance of freedom of speech in the political context. The freedom of speech protected by section 22 and the freedom to petition the government for redress of grievances protected by section 3 are closely related. Protection of these freedoms is an essential part of the right to participate in self-government. Information and meaningful discussion are necessary for a self-governing society. "There should be 'no potential interference' with a meaningful dialogue of ideas concerning self-government; nor should there be a threat of liability that causes self-censorship." These protections are afforded, not only the speaker but also the listener. These rights apply equally to those proficient in the English language and those who are not.

112 It is difficult to envision a situation where these protections are more necessary than in communications between government officials, whether eléctees or employees, and citizens. Restricting all governmental communications to English prevents citizens who are of limited English proficiency from effectively communicating with their government. Even with the exceptions for constitutional conflicts, Petition No. 366 would disenfranchise segments of Oklahoma citizens by interfering with their ability to access vital information necessary for a self-governing society and cause self-censorship by inhibiting communications with government officials. Oklahoma Constitution. All of this in contravention of the

B. Vagueness

{13 The due process clause of the Oklahoma Constitution requires statutory prohibitions to be clearly defined. Statutory prohibitions which are not clearly defined will be void for vagueness. Laws must afford "[a] person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that [the person] may act accordingly."

T 14 There are several inherent dangers of vague laws. Vague laws "may trap the innocent" by failing to provide fair warning. By failing to provide explicit standards, vague laws delegate basic policy matters to judges and juries for ad hoe resolution resulting in discriminatory enforcement. A vague law restraining speech causes citizens to avoid lawful conduct for fear of entering the forbidden zone. "[A] law which interferes with the right of free speech" is éubjecfc to heightened serutiny because "[the threat of sanctions may deter [free speech's] exercise almost as potently as the actual application of sanctions."

(I 15 Very similar to Petition No. 866 is the classic example of an unconstitutionally vague statute: "It shall be a crime to say anything in public unless the speech is protected by the first and fourteenth amendments. Such a statute is patently vague and will deter constitutionally protected conduct. A vague statute's prohibitions become clear only after "courts [have] proceeded on a case-by-case basis to separate out constitutional from unconstitutional areas of coverage." Because of its vagueness, Petition No. 366 would force citizens to refrain from exercising their right to freedom of speech. Thus, Petition No. 366, if adopted, would unconstitutionally abridge article 2, section 7 of the Oklahoma Constitution.

C. Non-delegation Doctrine

{16 Section C of Petition No. 366 allows the use of languages other than English in state-supported public schools under rules promulgated by the State Board of Education and the State Board of Regents for Higher Education "to promote the following principles." However, Petition No. 366 fails to provide any principles.

§17 Articles 4 and 5 of the Oklahoma Constitution provide the basis for Oklahoma's non-delegation doctrine. Article 4 addresses the separation of the three branches of government. Article 5, section 1 charges the Legislature with policymak-ing for the state. The non-delegation doe-trine prevents the Legislature from abdicating its policy-making role by delegating its authority to an ageney. The Legislature "must establish its policies and set out definite standards for the exercise of any agency's rulemaking power." The non-delegation doctrine applies to enactments by the people in the same manner it applies to enactments by the Legislature.

{18 Petition No. 366's omission of any principles leaves the fundamental policy-making function to the unbridled discretion of the State Board of Education and the Board of Regents for Higher Education. This delegation of legislative authority would contravene articles 4 and 5 of the Oklahoma Constitution making Petition No. 366 unconstitutional if it were to be adopted.

VI. CONCLUSION

T19 Initiative Petition No. 366 is properly before this Court for substantive review. Petition No. 366 contravenes the Oklahoma Constitution. The petition unconstitutionally infringes upon the freedom of speech, upon the freedom to petition the government for redress, and upon the Legislature's policy-making function. Thus, the Initiative Petition No. 366 is legally insufficient for submission.to a vote of the people of Oklahoma.

[20 In finding Initiative Petition No. 366 is constitutionally infirm, we are not requiring any Oklahoma governmental entity to provide services in languages other than English beyond what is presently required by law. The issues before this Court do not include the extent that government must accommodate non-English proficient citizens and residents. Further, we do not express the propriety of laws promoting English as an official language. That is not the duty of this Court. We hold only that the restrictions Petition No. 366 places on: constitutionally protected rights runs afoul of the Oklahoma Constitution.

INITIATIVE PETITION NO. 366 IS DECLARED LEGALLY INSUFFICIENT FOR SUBMISSION TO A VOTE OF THE PEOPLE OF OKLAHOMA.

{21 HARCRAVE, C.J., WATT, V.C.J., LAVENDER, KAUGER, BOUDREAU, WINCHESTER, JJ., concur. -

22 OPALA, J., dissents.

123 SUMMERS, J. not participating.

APPENDIX A

BE IT-ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

Section 1. NEW LAW. A new section of law to be codified in the Oklahoma Statutes as Section 40 of title 24 unless there is a duplication created in numbering to read as follows:

A. In order to encourage every citizen of this state to become more proficient in the English language, thereby facilitating participation in the economic, political, and cultural activities of this state and of the United States, the English language is hereby declared to be the official language of the State of Oklahoma.

B. Except as otherwise provided in subsection C of this section, the English language shall be the language of the government. All official documents, transactions, proceedings, meetings. or publications issued, which are conducted or regulated by, on behalf of, or representing the state and all of its political subdivisions shall be in the English language.

C. Languages other than English may be used when required by:

1. The United States Constitution, the Oklahoma Constitution, federal laws, or federal regulations.

2. Any state supported common school or institution of higher education of this state subject to rules governing the use of foreign languages in such public education systems adopted by the State Board of Education of (sic) Oklahoma State Board of Regents for Higher Education pursuant to the provisions of the Administrative Procedures Act to promote the following principles.

D. On and after January 1, 2001, any state moneys appropriated or designated for use to print or translate reading materials, providing of services or information in a language other than English shall not be expended for such purposes. The director, agency, board, or commission which has state moneys appropriated for such purposes shall:

1. Notify the Office of State Finance of the total amount of all such moneys under their control;

2. Follow procedures established by the Director of State Finance to immediately return all such moneys to the General Revenue Fund.

E. At the beginning of the Second Session of the 47th Oklahoma Legislature specifying the total amount of these moneys returned and available for reappropriation or redesignation. All moneys received pursuant to the provisions of subsection D of this section may be used to fund English As A Second Language programs.

F. The provisions of this Section shall not be construed to limit the ability of any citizen, state employee, private business, or corporation to exercise their rights pursuant to:

1. The Constitution of the United States of America, or

2. The Constitution of the State of Oklahoma.

APPENDIX B

This measure adds a new law to Oklahoma statutes. Under the measure the State could not spend funds to:

8. Print or translate reading material into a language other than English.

4. Provide services in a language other than English

5. Provide information in a language other than English.

The State would have to return any monies provided for these purposes to the State General Revenue Fund.

The measure makes English the official language of the State and State government. The measure requires all official State documents to be in English. It requires the State to conduct all its business in English. The same requirements would apply to counties, municipalities, and school districts. The State and these subdivisions could use languages other than English when required by:

1. The United States or State Constitution, or

2. Federal law or regulation.

Schools could also use other languages under rules approved by the Legislature.

SHALL THE PROPOSAL BE APPROVED:

FOR THE PROPOSAL-YES

AGAINST THE PROPOSAL-NO

OPALA, J.,

dissenting from the court's pronouncement.

T1 The court declares today that the initiative petition under consideration-which would prohibit (a) the use of non-English languages in state government meetings, documents, transactions proceedings and publications as well as (b) the expenditure of funds for translating into, as well as printing in, non-English languages-does not qualify for submission to a vote of the electorate because it offends several state constitutional norms.

2 I cannot join the court in so disposing of the controversy. I would declare this unchampioned measure unfit for submission because its prosecution for clearance stands abandoned. This case ceased to present a lively controversy when the proponents requested "leave to withdraw" their quest for the initiative's submission to a vote and found themselves in default for want of timely briefing. Today's pronouncement raises to new heights the aberrational enormity of this State's constitutional jurisprudence. It subjects to fundamental-law seru-tiny a people-proposed change in the law which no longer has a live champion and does not present a justiciable controversy for judicial resolution. In other words, judicial review is applied to a hopelessly lifeless initiative petition that could never reach submission stage because nobody advocates its passage for further processing as potential law. The judicial testing accorded today has earlier stood reserved for viable initiative petitions actively pressed for submission to a vote, not for a dead-end measure.

T3 I would counsel the court to pronounce-as a rule of law to be applied prospectively-that when proponents in a pending cause refuse further to prosecute (and defend against a protest) an initiative that stands under a constitutional challenge, the court should give all interested persons due notice and afford, them the opportunity to pursue the quest sought to be withdrawn.

T4 There is another basic flaw in the process invoked today. Even if this were a lively controversy, appellate courts must not make constitutional pronouncements in advance of strict necessity. There is here no necessity for the rush to judgment upon this lifeless dispute. Lastly, because of my long-pressed opposition to the court's departure from Threadgill's teachings by allowing pre-submission testing of initiative measures for constitutional orthodoxy, I would refrain from giving this petition that kind of seruti-ny. There is simply no earthly need for making a ponderous pronouncement in a patently nonadversarial context. A declaration of mootness and abandonment, coupled with a default for want of timely briefing, should suffice.

I

PROPONENTS' PUBLIC-LAW CLAIM FOR SUBMISSION OF AN INITIATIVE MEASURE TO A VOTE CANNOT BE WITHDRAWN AFTER THE PETITIONS HAVE BEEN PRESENTED TO THE SECRETARY OF STATE

T5 I continue to espouse my earlier vote against granting proponents leave to withdraw the initiative from judicial process that is pending upon their adversaries' protest. Before a petition is filed with the Secretary of State proponents have complete control over the measure. They may withdraw it at any time. In the post-filing stage, the proponents cannot be treated as a Hohfeldian plaintiff (dominus litis ). At that point they become participants in the public-law process with no cognizable legal interest in the petition's prosecution. This measure clearly cannot be withdrawn on the proponents' withdrawal attempt alone.

II

THE ABANDONED INITIATIVE MEASURE LOST ITS JUS-TICIABLE QUALITY

16 Judicial cognizance cannot be invoked by pressing for resolution a nonjusticiable controversy-one that presents nothing more than an academic, abstract, hypothetical or moot issue. Mootness is a state or condition which prevents the appellate court from rendering effective relief. This court may address only viable, lively disputes. Foisting a sentence of nullity upon a lifeless measure is but a judicial exercise in futility and supererogation.

T7 After its voluntary abandonment by the proponents' withdrawal request, the initiative in contest must be treated as no longer justiciable. While the proponents" claim for the measure's submission cannot be withdrawn at their request, there is here no legal barrier to (a) declaring the initiative mooted and abandoned because, during the twelvemonth period between the proponents' request to withdraw the petition and today's pronouncement, no one from the proponents' side of the controversy has come forth to prosecute the measure and (b) declaring the proponents to stand in default for want of timely briefing.

III

NOTICE OF PROPONENTS' FAILURE TO PROSECUTE AN INITIATIVE MEASURE IS THE SIGNATORIES DUE

8 Proponents, gua trustees of a petition's signatures, are under a duty to prosecute (and defend against the protests) an initiative measure 'on the signatories' behalf. Their role in the process is akin to that of a class representative who voluntarily assumes a fiduciary obligation toward the class. The latter may not be abandoned at will if prejudice to the class would likely follow. The court is charged with protecting the class members who, through their forensic absence, are unable to protect themselves. In the pursuit of an initiative measure the signatories' rights (qua legislators) would clearly be prejudiced by (a) proponents' abandonment of their quest sans notice to the signatories and without the opportunity to pursue further their interest in the measure and (b) the court's judicial condemnation of the initiative as impermissible.

T9 I would counsel that in all future instances of a measure's mid-stream withdrawal by its proponents the court (a) give notice by publication (and by other mandatory means) to all persons known to be interested in the measure, (b) which would advise them that the proponents have withdrawn from the initiative's prosecution (or defense), and (c) would give the interested persons adequate opportunity to pursue the pending cause to its completion. If someone with a viable interest should come forth, the proceeding could then be reinstated as an active cause.

IV

EVEN IF THIS CAUSE WERE A LIVELY CONTROVERSY, CONSTITUTIONAL ISSUES ARE NOT TO BE DECIDED IN ADVANCE OF STRICT NECESSITY

110 Today's pronouncement clearly violates the prudential bar of restraint which commands that constitutional issues not be resolved in advance of strict necessity. No necessity exists here for resolution of the constitutional content-based challenges to an abandoned and lifeless nitiative measure.

1 11 No lively controversy is present here in which antagonistic adversaries press for testing a legal norm's validity against the backdrop of facts that are forensically unfolded after the offending measure has come to be applied as law. Where there is no forensic scenario in the context of which challenged law is to be enforced, courts should not in vacuo assess the attacked norm's constitutional soundness. I would not, as the court does today, reach for settlement the protestants' premature content-based constitutional challenges to a lifeless mea-gure.

V

THREADGILL v. CROSS

[12 Nor would I today undertake to test the validity of this measure's content before its enactment as law by a vote of the people. My commitment to the undiluted force of Threadgill v. Cross continues with undiminished fervor. Threadgill teaches that conformity of a measure's content to the commands of the Constitution-state and federal-may not be judicially examined in advance of the initiative's adoption as law. Pre-enactment review of a measure's fundamental-law conformity should be confined to fatally vitiating infirmities in the initiative process itself. The electorate's effort at legislating directly must not be hindered by pre-submission attacks other than those which target the petition's lack of compliance with. some sine gua non prerequisite for judicial clearance in order to achieve the measure's submission to a vote of the people.

VI

SUMMARY

{ 13 The initiative measure in judicial process here cannot be withdrawn on proponents' request. This cause is a public-law controversy over which proponents have no control after the petition's filing. No legal impediment is present here to this court's (a) declaring the measure mooted and voluntarily abandoned because, during the period between the proponents' request to withdraw the measure from submission and today's pronouncement, no one has come forth to prosecute (and defend against the protest) the petition and (b) declaring the proponents to stand in default for want of timely briefing.

T 14 The court's commitment to pre-enactment constitutional serutiny of initiative measures reaches a new level of aberrational excess. Today's pronouncement im-permissibly injects vitality into a lifeless, un-championed and utterly abandoned initiative petition with a zeal reminiscent of a roving commission rushing to judgment on abstract grievances.

115 I also press my counsel that in the future, when proponents refuse to prosecute a challenged initiative, the court give all interested persons adequate notice and opportunity to pursue the quest to its completion.

{16 Because of my continued and unswerving commitment to the teachings of Threadgill, I must vigorously oppose subjecting any measure to constitutional testing in advance of its enactment into law. Aside from other flaws, today's pronouncement clearly violates the prudential bar of self-restraint from entertaining constitutional challenges in advance of strict necessity.

      . The full text of the Initiative Petition No. 366, numbered State Question 689, is at Appendix A.

      . Okla. Stat. tit. 34, § 9(D)(a) (1991). The ballot title is attached as Appendix B.

      . The Oklahoma Attorney General's motion to file a brief as amicus curiae was granted. The brief of the American Civil Liberties Union of Oklahoma Foundation, American Civil Liberties Union Foundation of Northern California, Inc., Mexican American Legal Defense and Education Fund, Asian American Legal Defense and Educational Fund, Employment Law Center of the Legal Aid Society of San Francisco and the brief of the Cherokee Nation are accepted as amici curiae briefs.

      . Okla. Const. art. V, § 1, provides:
      [The people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature. Title 34 of the Oklahoma Statutes addresses initiatives and referendums.

      . In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 35, 838 P.2d 1, 12.

      . Id.

      . Id.

      . Ala. Const. amend. 509; Alaska Stat. §§ 44.12.300-.380 (1998); Ark.Code. Ann. § 1-4-117 (1987); Cal. Const. art. III, § 6; Colo. Const. art. II, § 30(a); Fla. Const. art. II, § 9; Ga.Code Ann. § 50-3-100 (1996); Haw. Const. art. XV, § 49 ("'English and Hawaiian shall be the official languages of Hawaii...."); Ill.Rev. Stat. ch. 5, para. 460/20 (1991); Ind.Code § 1-2-10-1 (1995); Ky.Rev.Stat. Ann. § 2.013 (Baldwin 1984); Miss.Rev.Stat. § 3-3-31 (1987); Mont. Code. Ann. § 1-1-510 (1995); Neb. Const. Art. 1, § 27, N.H.Rev.Stat. Ann. § 3-C:1 (1995); N.C. Gen.Stat. § 145-12 (1987); N.D. Cent.Code § 54-02-13 (1987); S.C.Code Ann. § 1-1-696 (1987); S.D. Codified Laws Ann. §§ 1-27-20, 1-27-22 (1995); Tenn.Code Ann. § 4-1-404 (1984); Va.Code Ann. § 7.1-42 (Michie 1996); Wyo.Stat. § 8-6-101 (1996).

      . Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 994 (1998).

      . Ark.Code. Ann. § 1-4-117 (1987) ("(a) The English language shall be the official language of the State of Arkansas. (b) This section shall not prohibit the public schools from performing their duty to provide equal educational opportunities to all children."); Colo. Const. art. II, § 30(a) (''The English language is the official language of the State of Colorado. This section is self executing; however, the General Assembly may enact laws to implement this section."); N.D. Cen. Code § 54-02-13 (1987) (''The English language is the official language of the state of North Dakota.").

      . Ariz. Const. Art. XXVIII Article 28 was declared unconstitutional in Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 994 (1998), and in Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir.1995) (en banc), vacated on other grounds AOE v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), on remand, Yniguez v. AOE, 118 F.3d 667 (9th Cir.1997).

      . Ruiz, 957 P.2d at 994.

      . Yniguez, 69 F.3d at 920.

      . Ruiz, 957 P.2d at 984.

      . It appears the Arizona Supreme Court and the Ninth Circuit Court of Appeals did not construe the conflict with federal laws exception in the Arizona provision to include a conflict with the United States Constitution. Ruiz, 957 P.2d at 984; Yniguez, 69 F.3d 920. Because Petition No. 366 is a proposed statutory amendment rather than a proposed constitutional amendment, it is subject to invalidation based on the Oklahoma Constitution as well as the United States Constitution: Okla. Const. art. I, § 1; Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, ¶ 22, 679 P.2d 1296, 1302.

      . Reherman, 1984 OK 12 at 22, 679 P.2d at 1302.

      . Ruiz, 957 P.2d at 984; Yniguez, 69 F.3d 920.

      . Okla. Const. art. 2, § 22; Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 13 n. 23, 958 P.2d 128, 138 n. 23. Compare Oklahoma's protections with the First Amendment of the United States Constitution which states: "Congress shall make no law ... abridging the freedom of speech." In our analysis of Oklahoma's Constitution, federal authority is used solely for guidance. Our determination of the validity of Petition No. 366 is premised exclusively upon Oklahoma's Constitution and not upon federal constitutional considerations. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

      . City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, ¶ 14, 967 P.2d 1214, 1220.

      . Black's Law Dictionary p. 978. (5th ed.1979).

      . Id.

      . Gaylord Entertainment, 1998 OK 30, ¶ 13 n. 23, 958 P.2d at 138 n. 23.

      . Id. at ¶ 24 n. 52, at 142 n. 52.

      . Id. at ¶ 14 n. 24, at 138 n. 4.

      . Id. at ¶ 13, at 138.

      . Id.

      . Id.

      . See Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

      . Okla. Const. art. II, § 7, provides:
      No person shall be deprived of life, liberty, or property, without due process of law.

      . Grayned v. City of Rockford, 408 U.S. 104, 107, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

      . Id.

      . Id.

      . Id.

      . Id.

      . Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

      . NAACP v. Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

      . L. Tribe, American Constitutional Law § 12-29, at 1031 (2d ed.1988).

      . Id.

      . Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964).

      . Article 4, section 1 of the Oklahoma Constitution provides:
      The powers of the government of the State of Oklahoma shall be divided into three separate departments: 'The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.

      . Article 5, section 1 of the Oklahoma Constitution provides:
      The Legislative authority of the State shall be vested ina Legislature, consisting of a Senate and a House of Representatives....

      . Democratic Party of Okla. v. Estep, 1982 OK 106, ¶ 16 n. 25, 652 P.2d 271, 277 n. 25.

      . Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge Number 188 v. Board of County Comm's of Tulsa County, 2000 OK 2, ¶ 9, 995 P.2d 1124, 1128.

      . Estep, 1982 OK 106 at ¶ 16, 652 P.2d at 277-78.

      . See id.

      . Okla. Const. art. II, § 22.

      . Id. at § 3.

      . Id. at art. IV, § 1; id. art. V, § 1.

      . The proponents have submitted two cases from other jurisdictions in support of their position: (1) Alexander v. Sandoval, 531 U.S. 1049, 121 S.Ct. 652, 148 L.Ed.2d 556 (2001), and (2) Anderson v. Utah, Slip OP. NO. 000909680 (D.Utah 2001). In Alexander v. Sandoval, the United States Supreme Court held administering a driver's license examination only in the English language did not violate federal regulations prohibiting fund recipients from using discriminatory methods. Alexander does not support proponents position. Anderson v. Utah is a state district court case, reported by slip opinion, upholding Viah's "Official English" act against a constitutional challenge. The Utah Supreme Court had previously held that the purpose of the act was "to declare English to be the official language for the conduct of government business in Utah." Stavros v. Office of Legislative Research and General Counsel, 15 P.3d 1013, 1018 (Utah 2000). At issue in Stavros was the ballot title, not the constitutionality of the act. We are applying Oklahoma constitutional jurisprudence, the analysis by the Court in Anderson is inapplicable in this action.

      . See, e.g., In re Initiative Petition No. 364, State Question No. 673, 1996 OK 129, 930 P.2d 186; In re Initiative Petition No. 362, State Question 669, 1995 OK 77, 899 P.2d 1145; In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, 838 P.2d 1; In re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, 820 P.2d 772; In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, 813 P.2d 1019; In re Initiative Petition No. 341, State Question No. 627, 1990 OK. 53, 796 P.2d 267; In re Initiative Petition No. 332, 1989 OK 93, 776 P.2d 556; In re Initiative Petition No. 315, State Question No. 553, 1982 OK 15, 649 P.2d 545; In re Supreme Court Adjudication, Etc., 1975 OK 36, 534 P.2d 3.

      . Threadgill v. Cross, 1910 OK 165, 109 P. 558.

      . This court's 16 April 2001 order states in pertinent part:
      ORDER
      Upon the unexcused failure of the proponents to file an answer brief as directed by this Court's order of October 5, 2000, this matter is ordered standing submitted for adjudication on the protestants' briefs alone. The motion of proponent Carol Martin to withdraw the petition is denied. In re Initiative Petition No. 364, 1996 OK 129, 930 P.2d 186 .... [Opala, J., concurs in result].

      . The pertinent terms of 34 O.S.Supp.1992 § 8 (A) are:
      A. * * * The proponents of a referendum or an initiative petition, any time before the final submission of signatures, may withdraw the referendum or initiative petition upon written notification to the Secretary of State.

      . A Hohfeldian plaintiff is a legal entity seeking a judicial determination that as a party litigant it has "a right, a privilege, an immunity or a power" vis-a-vis the opposite party in litigation. Macy v. Board of County Com'rs, 1999 OK 53, ¶ 12, 986 P.2d 1130, 1137-38; Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, 890 P.2d 906, 914 (Opala, J., concurring); Fowler v. Bailey, 1992 OK 160, 844 P.2d 141, 150 (Opala, C.J., concurring); Louis L. Jaffe, The Citizen As Litigant In Public Actions: The non-Hobfeldian or Ideological Plaintiff, 116 U.Pa.L.Rev. 1033 (1968).

      . Literally translated, dominus litis means master of the suit, i.e., one who by law is entitled to manage and control the litigation to the exclusion of others. Black's Law Dictionary 437 (5th ed.1979); Davis v. Davis, 1985 OK 85, 708 P.2d 1102, 1107 (one who is "placed in charge of prosecuting" the case is "dominus litis"); Ex parte Lewis, 85 Okl. Cr. 322, 188 P.2d 367, 380 (1947); Virginia Electric & Power Co. v. Bowers, 181 Va. 542, 25 S.E.2d 361, 363 (1943).

      . The initiative petition's proponents stand in this court as non-Hohfeldian plaintiffs. One who stands in that status sues to secure judicial relief that would benefit other persons or the community as a whole. Toxic Waste, supra note 5 at 914 (Opala, J., concurring). There are many examples of non-Hohfeldian plaintiffs whose prosecution in behalf of others is authorized by the common law: (l) the gui tam plaintiff-one who sues primarily to benefit a public entity-is typically non-Hohfeldian; State ex rel. Trimble v. City of Moore, 1991 OK 97, 818 P.2d 889, 894; see Flast v. Cohen, 392 U.S. 83, 120, 88 S.Ct. 1942, 1963, 20 L.Ed.2d 947 (1968) (Harlan, J., dissenting); Kenneth E. Scott, Standing in the Supreme Court-A Functional Analysis, 86 Harv.L.Rev. 645, 660-662 n.1 (1973); Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 604-607 (1968); see also Sierra Club v. Morton, 405 U.S. 727, 732 n. 3, 92 S.Ct. 1361, 1364-1365, 31 L.Ed.2d 636 (1972); Clark v. Valeo, 559 F.2d 642, 675 (D.C.Cir.1977); (2) in a stockholder's derivative suit the plaintiff stands in the very same category as a gui tam plaintiff. Warren v. Century Bankcorporation, Inc., 1987 OK 14, 741 P.2d 846, 847, 853; (3) in actions by bailee for recovery of damage to bailed personalty, the bail-ee may press a claim for conversion of, or injury to,; the chattel, though ownership of the damaged or lost chattel remains in the bailor; Hare v. Fuller, 7 Ala. 717 (1845); Montgomery Gas-Light Co. v. Montgomery E. Ry. Co., 86 Ala. 372, 5 So. 735 (1889); Associates Discount Corp. v. Gillineau, 322 Mass. 490, 78 N.E.2d 192, 193 (1948); Atkinson, The Real Party In Interest Rule: A Plea for Its Abolition, 32 N.Y.U.L.Rev. 926, 949 (1957); (4) actions for recovery in behalf of an underage child, Knowles v. Tripledee Drilling Co., Inc., 1989 OK 40, 771 P.2d 208.

      .My April 16 vote (concurring in result, supra note 3) is entirely consistent with the position I take today. While I still concur in denying the proponents' motion to withdraw the petition and in effecting final disposition of this cause by adjudication, I do not favor a dismissal upon proponents' quest to withdraw their petition. The form of adjudication I press for is that of declaring the initiative petition abandoned and its proponents in default for want of a timely brief (see Part II infra). An "adjudication" is distinguishable from a judicial disposition that would effect the proceeding's termination by dismissal upon proponents' motion to withdraw the petition from submission to a vote.

      . A dispute ceases to present a lively "case or controversy" when the tendered issues are abstract, academic, hypothetical or have become moot. Hughey v. Grand River Dam Authority, 1995 OK 56, 897 P.2d 1138, 1143; Northeast Okl. Elec. v. Corporation Comm'n, 1991 OK 28, 808 P.2d 680, 683; Westinghouse Elec. Co-op., Inc. v. Grand River Dam Auth., 1986 OK 20, ¶ 21, 720 P.2d 713, 718; Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 15, 701 P.2d 754, 761; Lawrence v. Cleveland County Home Loan Auth., 1981 OK 28, 626 P.2d 314, 315; Edwards v. Hanna Lumber Co., 1966 OK 20, 415 P.2d 980, 981; Westgate Oil Co. v. Refiners Production Co., 1935 OK 548, 44 P.2d 993, 994; Payne v. Jones, 1944 OK 86, 146 P.2d 113, 116; Wallace v. McClendon, 1930 OK 305, ¶ 3, 289 P. 354. See also Application of Goodwin, 1979 OK 106, 597 P.2d 762, 765 n. 8.

      . Morton v. Adair County Excise Bd., 1989 OK 174, 780 P.2d 707, 711; Rogers, supra note 9 at 761.

      . Ashcroft v. Mattis, 431 U.S. 171, 172, 97 S.Ct. 1739, 1740, 52 L.Ed.2d 219 (1977); DeFunis v. Odegaard, 416 U.S. 312, 316-317, 94 S.Ct. 1704, 1705-1706, 40 L.Ed.2d 164 (1974); Park View Hospital Trust Auth. v. State of Oklahoma ex rel. Dept. of Labor, 1996 OK 108, 925 P.2d 541, 544 (Opala, J., concurring in judgment).

      . See in this connection Shelton v. Lambert, 1965 OK 28, ¶ 6, 399 P.2d 467, 469 ('The withdrawal or dismissal of a protest to an initiative measure is in effect its abandonment within the meaning of 34 O.S.1961 § 8. Upon such withdrawal the protest is treated as abandoned subject to the right of 'any other citizen' to revive it within five days from the abandonment."). Likewise, a proponent's attempt to withdraw an initiative measure should be treated as an abandonment of the petition.

      . Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 549, 69 S.Ct. 1221, 1227, 93 L.Ed. 1528 (1949) (a class representative is a fiduciary for absent class members); In re Oxford Health Plans, Inc. Sec. Litig, 182 F.R.D. 42, 46 (S.D.N.Y.1998). A class action may not be voluntarily dismissed by the named plaintiffs without the court's approval and notice of the proposed dismissal to all members of the class in whatever manner the court directs. 12 O.S.2001 § 2023 (D) and (E); Fed.R.Civ.P. 23(e); Blanchard v. EdgeMmark Financial Corp., 175 F.R.D. 293, 298-99 (N.D.Ill.1997); Shelton v. Pargo, Inc., 582 F.2d 1298, 1305 (4th Cir.1978).

      . In order to carry out its role as guardian of the absent class members' interests, the court has the power and the duty, as set forth in 12 O.S.2001 § 2023 (D) and (E), to ensure that the class representative and class counsel do nothing to compromise or otherwise prejudice the interests of those whom they have. undertaken to represent. See also Fed.R.Civ.P. 23(d) and (e); Blanchard, supra note 13 at 298-99, citing Manual for Compex Litigation (Third) § 30 (1995).

      . The proponents of an initiative measure and the petition's signatories act in the capacity of legislators. In re Initiative Petition No. 23, State Question No. 38, 1912 OK 611, 127 P. 862, 866, the court observes that "[pleople interested as the circulators of ... [initiative] petitions, and the others who sign them, are acting in the capacity of legislators. They are members of the largest legislative body in the state, and, where so acting, do so in a public or at least a quasi public capacity. ..." See also Brock v. The Honorable Donald D. Thompson, 1997 OK 127, ¶ 12, 948 P.2d 279, 286.

      . I do not counsel for additional notice-giving in this case but rather wish to foreshadow a needed procedural change in processing initiative petitions after the proponents' withdrawal or abandonment. Harry R. Carlile Trust v. Cotton Petroleum, 1986 OK 16, 732 P.2d 438, 447-448 n. 46 (notice can 'be mandated by a pronouncement that is given prospective effect).

      . The adoption of my proposed procedure would be consistent with those statutory requirements that call for this court to adopt rules governing challenges during the initiative (or referendum) process. 34 O.S.Supp.1992 § 8 (E). If the applicable procedure is not set forth in either § 8 or Rule 1.194, Oklahoma Supreme Court Rules, 12 O.S.Supp.1997, App. 1, this court may utilize any "procedure that conforms to federal and state constitutional due process requirements." In re Initiative Petition No. 365, State Question No. 687, 2000 OK 85, ¶ 2, 14 P.3d 545, 546.
      The terms of 34 O.S.Supp.1992 § 8 (E) are:
      E. Upon the filing of an objection to the count, the Supreme Court shall resolve the objection with dispatch. The Supreme Court shall adopt rules to govern proceedings to apply to the challenge of a measure on the grounds that the proponents failed to gather sufficient signatures.
      The terms of Rule 1.194 are:
      Proceedings in the Supreme Court to determine protests or objections to initiative and referendum petitions shall be commenced and proceed in accordance with the procedures set out in 34 O.S.Supp.1992 § 8.
      The proceeding shall be treated as an original action and the parties shall be afforded a trial de novo, In re Initiative Petition 281, State Ques. No. 441, Okl.,[1967 OK 230] 434 P.2d 941. If factual issues are raised, the Court may assign the matter to a referee.
      The Court may issue directions when the procedure is not set out in 34 O.S.Supp.1992 § 8, in this Rule, or in Part VI of these Rules.

      . The prudential rule of necessity, adhered to by all state and federal courts, holds that constitutional issues must not be resolved in advance of strict necessity. In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, 927 P.2d 558, 565; In re Initiative Petition No. 347, supra note 1 at 1037 (Opala, C.J., concurring); Smith v. Westinghouse Elec. Corp., 1987 OK 3, 732 P.2d 466, 467 n. 3; I.N.S. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). See also Schwartz v. Diehl, 1997 OK 115, 568 P.2d 280, 283; Dablemont v. State Dept. of Public Safety, 1975 OK 162, 543 P.2d 563, 564.

      . The pertinent provisions of Art. 5, § 3, Okl. Const., are:
      * * * Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature shall make suitable provisions for carrying into effect the provisions of this article.

      . Smith, supra note 18, at 467.

      . Supra note 2.

      . Id.

      . My unswerving commitment to Threadgill, supra note 2, is documented in several reported decisions. See In re Initiative Petition No. 349, supra note 1 at 18 (Opala, C.J., dissenting); In re Initiative Petition No. 348, supra note 1 at 781 (Opala, C.J., concurring in result); In re Initiative Petition No. 347, supra note 1, at 1037 (Opala, C.J., concurring); In re Initiative Petition No. 341, supra note 1 at 275 (Opala, V.C.J., concurring in result); In re Initiative Petition No. 317, State Question No. 556, 1982 OK 78, 648 P.2d 1207, 1222 (Opala, J., concurring in the judgment); In re Initiative Petition No. 315, supra note 1 at 554-555 (Opala, J., concurring in result); In re Initiative Petition No. 349 (No. 76,-437, February 20, 1991) (Opala, C.J., concurring in part and dissenting in part) (unpublished opinion).

      . For an initiative to pass the threshold test it must (a) be in substantial compliance with the sine qua non procedural requirements for submission, (b) address but a single subject (In re Initiative Petition No. 344, State Question No. 630, 1990 OK 75, 797 P.2d 326, 330; In re Initiative Petition No. 342, State Question 628, 1990 OK 76, 797 P.2d 331, 333) and (c) embrace content appropriate for lawmaking by the people (In re Supreme Court Adjudication, Etc., supra note 1); see also in this connection In re Initiative Petition No. 347, supra note 1 (Opala, C.J., concurring).

      . Supra note 2.


source: Caselaw Access Project

author: JOHNSON, Viee-Presiding Judge: CHAPEL, Judge,

license: Public Domain

text:
    2002 OK CR 2
    Kip Antonio SMITH, Appellant, v. STATE of Oklahoma, Appellee.
    No. F-2000-658.
    Court of Criminal Appeals of Oklahoma.
    Jan. 7, 2002.
    Edward G. Lindsey, C. Timothy Tuck, Tulsa, OK, Attorneys for Defendant at trial.
    Chad Greer, Tracy I. Cain, Assistant District Attorneys, Tulsa, OK, Attorneys for the State at trial.
    Barry Benefield, Oklahoma City, OK, Attorney for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Patrick Crawley, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
   SUMMARY OPINION

JOHNSON, Viee-Presiding Judge:

1 1 Appellant, Kip Antonio Smith, was convicted by a jury in Tulsa County District Court, Case No. CF 99-104, of Sexually Abusing a Minor Child, in violation of 10 O.S.Supp.1998, § 7115. Jury trial was held on March 6-84", 2000, before the Honorable Thomas Gillert, District Judge. The jury found Appellant guilty and set punishment at Fifteen (15) years imprisonment. Judgment and Sentence was imposed on May 8", 2000, in accordance with the jury's verdict. From the Judgment and Sentence imposed, Appellant filed this appeal.

T2 Appellant raised the following propositions of error:

1. The trial court erroneously failed to dismiss the case because of the prior jury determination of the factual issue of sexual abuse of the alleged victim by Appellant;
2. The court erroneously allowed State testimony as to the juvenile proceeding but refused to allow defense inquiry and denied defendant's motion for mistrial based on introduction of evidence about the juvenile protective order proceedings; and,
3. The court erroneously allowed cross-examination and rebuttal testimony on the subject of an alleged threat by Appellant against one of his other children. 4 |

13 After thorough consideration of these propositions and the entire record before us on appeal, including the original record, tran-seripts, and briefs of the parties, we find neither reversal nor modification is requlred and we therefore affirm.

4 Prior to Appellant's criminal trial, the State filed a deprived child action seeking to terminate Appellant's parental rights over his two daughters E.S. and K.S. on the basis of his alleged sexual abuse of their half-sister B.J., the victim in the criminal case underlying this appeal. In that deprived child/termination proceeding, although the jury found the children to be deprived, it answered negatively to certain special interrogatories relating to the alleged sexual abuse. Because the jury did not find Smith had committed the sexual abuse alleged in the Petition, the deprivation action ended there and his parental rights were not terminated.

15 Prior to Appellant's trial in this case, he filed a Motion to Dismiss arguing the doctrine of collateral estoppel barred the State from further prosecution, because the jury in the deprived child action determined Appellant had not sexually abused his stepdaughter B.J. The trial court denied the Motion. Appellant was thereafter tried and convicted of Sexually Abusing a Minor Child (B.J.). In Proposition One, Appellant argues the trial court's decision was in error and asks this Court to reverse his conviction.

T6 Oral argument on the claim raised in Proposition One was held on October 9, 2001. All judges of this Court were present.

17 The doctrine of collateral estoppel stands for the prmc1ple that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 442, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) This rule of law is applicable to criminal proceedings and is embodied in the Fifth Amendment guarantee against double jeopardy. Ashe, 397 U.S. at 445—446, 90 S.Ct at 1195.

18 While an aequittal on a criminal charge is never a bar to a civil action arising out of the same set of facts upon which the criminal proceeding was based, State Mutual Life Assurance Co. of America v. Hampton, 1985 OK 19, ¶ 4, 696 P.2d 1027, 1036 (Opala, J., concurring opinion), the reverse is not necessarily true. Collateral estoppel may be applicable where the first cause of action was civil and the second was criminal. Yates v. United States, 354 U.S. 298, 335-336, 77 S.Ct. 1064, 1085, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). This is true because there is a lower burden of proof in a civil proceeding. A specific jury finding on an ultimate issue in favor of the defendant would preclude a subsequent criminal prosecution on the same issue or issues. This Court's discussion of collateral estoppel has thus far been limited to those cases involving prior criminal prosecutions or proceedings. Today, we affirm the applicability of the doctrine of collateral estoppel to criminal prosecutions or proceedings when the prior proceeding was civil in nature.

19 To apply collateral estoppel, the following elements must be established: (1) the issue previously decided is identical with the one presented in the action in question; (2) the prior action has been finally adjudicated on the merits; (8) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Harrison v. Eddy Potash, Inc., 248 F.3d 1014, 1022 (10th Cir.2001), cert. denied, -- U.S. --, 122 S.Ct. 543, 151 L.Ed.2d 421 (2001).

110 There is no doubt that the prior deprived child proceeding has been finally adjudicated on the merits; the parties were the same or in privity, and both parties had a full and fair opportunity to litigate the issue in the prior action. In this case, however, we cannot find that the issue(s) previously decided in the deprived child proceeding "were identical with" the one presented in - this criminal proceeding-whether Appellant sexually abused his minor child B.J. While at first glance the doctrine seems to apply, upon closer review of the deprived child action, we must conclude the jury in that case did not necessarily acquit Appellant of the same identical allegations.

111 The jury in the deprived child proceeding found Appellant had not committed sexual abuse that was "heinous or shocking" and had not committed sexual abuse that caused "severe harm or injury." See f. 2. The questions submitted to the jury did not allow the jury to find Appellant had committed sexual abuse without finding such abuse was aggravated in some way.

12 Because of the language of the special interrogatories and the jury's verdict, we cannot conclude that they in fact found Appellant had not committed sexual abuse against B.J. Also, we cannot conclude the factual issues decided by the jury in Appellant's favor were "ultimate issues." The jury was instructed it did not have to answer any of the special interrogatories affirmatively and could still find the children to be deprived. Seef. 2.

113 Therefore, we find the doctrine of collateral estoppel did not bar Appellant's further criminal prosecution and the trial court did not err by denying the Motion to Dismiss.

T14 Proposition Two does not warrant relief. If any error occurred when evidence of the prior protective order was put before the jury, the error was cured when the trial court instructed the jury to disregard the evidence. Cheatham v. State, 1995 OK CR 32, ¶ 35, 900 P.2d 414, 425.

15 Further, we find no error in the admission of testimony relating to the alleged threat made by Appellant towards his daughter. Douglas v. State, 1997 OK CR 79, ¶ 50, 951 P.2d 651, 668, cert. denied, 525 U.S. 884, 119 S.Ct. 195, 142 L.Ed.2d 159 (1998). Trial counsel did not object to the trial court's limiting instruction relating to the admission of the evidence and all but plain error is waived. Id. at ¶ 49, 951 P.2d at 668. We find no plain error and Proposition Three is denied.

DECISION

116 The Judgment and Sentence of the trial court is hereby AFFIRMED.

LUMPKIN, P.J., and STRUBHAR and LILE, JJ., concur.

CHAPEL, J., concurs in part/dissents in part.

CHAPEL, Judge,

concurs in part/dissents in part:

T1 I concur in the majority's discussion and conclusion as to the applicability of the collateral estoppel doctrine to criminal proceedings where the issue has been finally determined in a civil proceeding. I cannot agree, however, with the majority's application of the doctrine to the facts in this case. To reach the conclusion the majority has reached, one must conclude that a child could be the victim of sexual abuse in a manner that is not "heinous or shocking" or that did not cause "severe harm or injury." That is not a conclusion I am prepared to make. I therefore dissent to the decision to affirm the conviction and sentence in this case.

      . Tulsa County District Court, Case No. JVD-98-254. Jury trial was held in JVD-98-254 on January 22, 1999, before the Honorable Carlos Chappelle.

      . The "verdict" form for the special interrogatories read as follows:
      We further find the following to éxist (the Jury may find all to exist, one or more to exist, or that none exist. The Jury does not have to find one of the following in order to find this child to be deprived):
      1. Has the natural father sexually abused a child or sibling in a manner that is shocking and heinous; or
      2. Has the natural father sexually abused a child or a sibling in a manner which caused severe harm or injury to said child; or
      3. Has the natural father failed to protect this child or a sibling from sexual abuse that is shocking and heinous; or
      4. Has the natural father failed to protect 'this child or a sibling from sexual abuse which caused severe harm or injury to said child?
      (JVD 98-254 O.R. 19)

      . The State admits in its Motion for New Trial, filed in JVD 98-254, that "[the judge, based on the inconsistency between the verdict and the answers to the interrogatories, determined the State would be unable to proceed with the second stage of the trial and dismissed the jury from further duty." (O.R. 23, JVD 98-254).

      . Appellate counsel, Barry Benefield, appeared on behalf of Appellant. Patrick Crawley, Assistant Attorney General, appeared on behalf of the State of Oklahoma.

      . See e.g. Brown v. State, 1998 OK CR 77, ¶ 10, 989 P.2d 913, 920; Wilson v. State, 1998 OK CR 73, ¶ 11, 983 P.2d 448, 456, cert. denied, 528 U.S. 904, 120 S.Ct. 244, 145 L.Ed.2d 205 (1999); Alverson v. State, 1999 OK CR 21, ¶ 6, 983 P.2d 498, 506, cert. denied, 528 U.S. 1089, 120 S.Ct. 820, 145 L.Ed.2d 690 (2000); Bowie v. State, 1995 OK CR 4, ¶ 18, 906 P.2d 759, 762; Romano v. State, 1993 OK CR 8, ¶ 85, 847 P.2d 368, 388, aff'd, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). This is not an exhaustive list of all published cases in which this Court has dealt with issues of collateral estoppel.


author: L UMPKIN, Presiding Judge: STRUBHAR, Judge: CHAPEL, J.,

text:
    2002 OK CR 12
    Christopher Alan HAWKINS, Appellant, v. The STATE of Oklahoma, Appellee.
    No. F-2000-769.
    Court of Criminal Appeals of Oklahoma.
    March 12, 2002.

      Janet Cox, David McKenzie, Assistant Public Defenders, Oklahoma City, Counsel for Appellant at trial
    Mare Pate, Assistant District Attorney, Oklahoma City, Counsel for the State at trial.
    Wendell B. Sutton, Assistant Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, Counsel for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, Steven E. Lohr, Assistant Attorney General, Oklahoma City, Counsel for the State on appeal.
   OPINION

L UMPKIN, Presiding Judge:

T1 Appellant, Christopher Alan Hawkins, was tried by jury in the District Court of Oklahoma County, Case No. CF-98-736, and convicted of First Degree Murder (Count 1), in violation of 21 O.S.Supp.1997, § 701.7, and Conspiracy to Commit First Degree Murder (Count II), in violation of 21 O.S.1991, § 421. The jury set punishment at life imprisonment without parole on Count I and ten (10) years imprisonment on Count II. The trial judge sentenced Appellant accordingly and ordered the sentences to run concurrently. Appellant now appeals his convictions and sentences.

T2 On January 29, 1998, Appellant, Michael Draper, and Zane Johnson went to the home of Wayne Dollar. Appellant fired four shots into Dollar's head while Dollar lay sleeping on a living room couch. He admitted shooting Dollar during subsequent interviews and when he took the stand at trial.

13 Appellant claimed Draper asked him to shoot Dollar and that Draper would then forgive a debt Appellant owed to him. Appellant claimed he had no choice in the matter: "[If I didn't do this either Draper was going to send Dollar after me again or he (Draper) was going to get me."

T4 ''There was testimony Dollar had fired multiple shots into Appellant's apartment three days before the shooting, using the same gun Appellant used to kill Dollar, A police investigator theorized that Dollar had shot up Appellant's apartment at Draper's request, due to the money Appellant owed Draper. « tos

T5 In his first proposition, Appellant claims the trial court denied him a fair trial, in violation of his federal and state constitutional rights, by admitting videotaped interviews he gave to the police following the incident and photographs of the victim. Pri- or to the admission of the interviews and photographs, Appellant's counsel [lodged timely objections.

T 6 Regardihg the videotaped interviews, Appellant claims he unambiguously invoked his right to counsel during his first interview, but then alleges the police reinitiated contact with him, ultimately conducting an interrogation that led to his confession the next day. Appellant claims the interviews should have been suppressed because there was not .a sufficient showing Appellant had waived his right to counsel or had reinitiated contact with the police investigators.

T7 The State points out that the trial court held an in camera hearing regarding Appellant's waiver and found it was Appellant who reinitiated contact. The State claims this ruling was proper, because the record contains sufficient facts to support the trial court's ruling by a preponderance of the evidence.

18 Appellant's first interview was held on February 4, 1998 and was terminated when Appellant requested an attorney. Questioning ceased, but the police detectives gave Appellant their number in case he changed his mind. They also informed Appellant he was being booked for first degree murder and warned him that "[olther people have been talking. The deals are getting made." The detectives took Appellant's picture, asked him about hlS hair color, and then left.

19 Appellant was then taken to jail,. According to Detective Matthews, while he was being "booked," Appellant asked if any of the other people had been arrested. Matthews told him yes. Appellant then asked what they had said and whether they were blaming him. Matthews told him he could not discuss this because Appellant had invoked his right to counsel.

110 According to Matthews, Appellant then said, "Well, I will speak to you now." Matthews testified he told Appellant to "sleep on it" and that they would contact him the next day. (Tr. II at 116-17; P.H.Tr. at 76.) Detective Maddox also recalled Matthews informing him that, during book-in, Appellant had said he had changed his mind and wished to speak to the detectives. Appellant, however, claimed this exchange never happened and that Matthews made it up.

T11 The second interview occurred the next day, February 5, 1998. Detective Matthews testified at the preliminary hearing that, before the interview began, he made contact with Appellant and confirmed that he still wanted to speak to the detectives. Appellant said, "Yes I do." (Tr. II at 137; P.H.Tr. at 77-78.) At trial, Matthews could not specifically recall this exchange, but he testified that he was sure his preliminary hearing statement was true.

112 The second interview began with Detective Maddox confirming his understanding that Appellant, at booking, had evidently changed his mind about wanting to speak to investigators without an attorney. In order to confirm whether or not that was true, Maddox informed Appellant that he would start over and read him his rights again. Appellant first nodded, then verbally agreed to this procedure. The Miranda warning was given, and Appellant waived his right to an attorney. Thereafter, he made several damning admissions.

113 Appellant argues the trial court should have focused, not only on whether the statement was given voluntarily, but also upon whether Appellant knowingly and intelligently relinquished his right to counsel. Appellant thus argues his lack of access to counsel, young age, drug dependency, learning disability, parents' divorce, home environment, and ninth grade education must all be taken into consideration. Appellant did not, however, ask the trial court to consider these factors when rendering its decision.

{114 Appellant points to slight inconsistencies in Detective Matthews's story regarding Appellant's alleged re-initiation of contact and to the "incredulous" claim that Appellant was allowed to "sleep on it" as supporting a lack of a knowing and intelligent waiver of the right to remain silent and right to counsel.

115 When an accused in custody requests the assistance of counsel the Fifth Amendment requires that all "interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Furthermore, an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). Even if an accused initiates further communication with authorities, his or her waiver of counsel "must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case 'upon the particular facts and cireumstances surrounding that case, including the background, experience, and conduct of the accused." Edwards, 451 U.S. at 482, 101 S.Ct. at 1884, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

{16 With this in mind, we find the facts of this case are analogous to those in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) and fall squarely within the law pronounced therein. In that case, the defendant had requested an attorney during his custodial interrogation. Questioning ceased. Thereafter, while the defendant was being transferred to the county jail, he asked an officer "what is going to happen to me now?" The officer replied that the defendant did not have to talk to him and that, because he had requested counsel, his desire to speak to the officer had to be of his own free will. After indicating he understood, the officer and defendant discussed where the defendant was being taken, with what he was being charged, and the possibility of his taking a polygraph test to help himself, The defendant agreed to take the test. The following day, after being given the Miranda warning, the defendant took the test. After the examiner told the defendant he did not believe he was telling the truth, the defendant made some damning admissions.

T 17 In its plurality opinion, the Supreme Court found these facts did not constitute a violation of the Edwards rule: '

There can be no doubt in this case that in asking, "Well, what is going to happen to me now?", respondent "initiated" further conversation in the ordinary dictionary sense of that word. While we doubt that it would be desirable to build a superstructure of legal refinements around the word "initiate" in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to "initiate" any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards.
Although ambiguous, the respondent's question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a nee-essary inquiry arising out of the incidents of the custodial relationship. - It could reasonably have been interpreted by the officer as relating generally to the investigation.

Oregon v. Bradshaw, 462 U.S. at 1045-46, 103 S.Ct. at 2835.

118 This case is sufficiently similar in terms of facts. While there was a dispute over whether Appellant actually spoke to Detective Matthews during booking, the trial judge, who was the trier of fact with respect to this question, heard testimony from Matthews that Appellant asked about who else had been arrested and whether or not he had been blamed. Matthews testified Appellant said he desired to speak to Matthews "now". This testimony was supported by at least one document and testimony from Maddox. While Appellant testified no such conversation ever occurred, the trial judge had the benefit of hearing the evidence and assessing the weight and credibility of the testimony. We find the trial judge's ruling that Appellant reinitiated communication to be factually and legally supported by the record. No Edwards violation occurred.

119 This, however, does not end our inquiry. We must now determine "whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Oregon v. Bradshaw, 462 U.S. at 1046, 103 S.Ct. at 2835. This determination depends '*upon the particular facts and cireumstances surrounding the case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023.

120 Here, the trial court, based upon the "totality of the circumstances and looking at all of the testimony that I have had here today," found that Appellant's decision to speak to the detectives, thereby waiving his right to silence and right to counsel, was voluntary, without coercion, without being under the influence of drugs or alcohol, and given at a time when Appellant was coherent. While there was no specific discussion of many of the factors Appellant mentions in his appellate brief, the trial judge had available to him information regarding Appellant's age, his competency evaluation, his previous contacts with the law, his ability to understand the charges against him, his drug dependency, his family problems, and his "paranoia and disordered thinking." We do not second guess a trial judge who was presented this evidence during the course of a hearing and we presume the judge considered such factors in entering his ruling.

121 Considering the totality of the circumstances, including Appellant's background, experience, conduct, and his own testimony (Tr. III at 87), we find the trial judge's ruling is sufficiently supported, by a preponderance of the evidence, and that the Appellant's waiver of the right to remain silent and the right to counsel was entered knowingly and intelligently.

122 Regarding the admission of the photographs of the deceased, we find the probative value thereof was not substantially outweighed by the danger of unfair prejudice. 12 O.S.1991, § 2403. While Appellant admitted the shooting, he also raised concerns about duress and heat of passion. Furthermore, the position of the body was helpful in determining the cireumstances of the crime, and the photographs helped to corroborate Appellant's confession.

123 In proposition two, Appellant claims the trial court committed reversible error by denying his requested jury instructions on duress and the lesser offense of first degree manslaughter, in violation of the federal and state constitutions.

124 Regarding duress, Appellant argues he was entitled to an instruction on this complete defense where there is any possible support for it in the evidence, even if discredited. To support his claim that the evidence at trial required the giving of a duress instruction, he points to the following facts in the record: Appellant had been buying methamphetamine from Michael Draper, selling drugs for Draper, and owed money to him as a consequence; Draper was known to have a bad temper; Appellant told Draper he was unable to pay for the drugs he had received; two days later, his apartment was shot up while he was inside, and the same gun later given to him by Draper to kill Dollar was used; Draper called Appellant and asked him to come over so they could discuss his debt; Draper told him "he had a way for me to pay off the debt;" Draper then told him that Dollar had ripped Draper off and had shot up Appellant's apartment; he went with Draper and Zane Johnson to Dollar's apartment, thinking they were only going to seare Dollar; Johnson told Draper he could let Appellant "do it to knock off the debt;" Johnson and Draper both had guns; Draper handed him his gun and asked, "Are you going to do this?"; Appellant took the gun, thinking he had no choice in the matter because Draper would get him or send Dollar to get him; he shot without thinking and because he was scared of "losing my life;" and he specifically testified that he acted in a heat of passion, out of pressure put on him by Draper, and out of fear that it would be his life or Dollar's.

125 But there are other fmportant facts from the record to consider. Appellant admitted there was talk about killing Dollar before they even went to his apartment that night. During his confessions to police, Appellant did not claim he acted out of fear. Furthermore, there was never any claim, during the confessions or at trial, that an actual or even an implied threat was made against Appellant. Indeed, it appears highly likely Appellant was acting out of monetary pressure, rather than a sense of imminent danger. (He testified that, while most people work to pay off their bills, "I had never ever really have (sic) been able to keep a job.") Draper, the person Appellant allegedly feared, was in a car a considerable distance away, when Appellant shot the sleeping victim four times in the head. Draper had given Appellant his gun, leaving Appellant armed and Draper disarmed. Additionally, although Appellant had seen Draper "blow up" at Draper's wife, he had never seen Draper threaten anyone who owed him money-he had only "heard stories." Furthermore, Appellant never testified he knew Draper had instructed Dollar to shoot up his apartment-he only knew Draper said that Dollar, whom he had never met, collected for him on occasion. In fact, according to his testimony, he never really thought about any of these things; he just took the gun and shot in a spur-of-the-moment manner.

€26 There has been some debate in this Court over the years about whether or not the affirmative defense of duress is available to one charged with first degree malice murder. The most recent pronouncement on this issue, adopted by two current members of this Court, says that it is. Even then, it is available in an extremely limited set of circumstances.

127 We need not revisit this issue today, however, because the record before us shows the trial judge did not abuse his discretion in denying a duress instruction under the facts of this case, even if one was hypothetically available.

128 According to 21 O.S.Supp.1992, § 156, duress requires the defendant to have committed a prohibited act or omission "because of a reasonable belief that there was imminent danger of death or great bodily harm from another upon oneself, ones spouse, or ones child." Here, the record indicates Appellant committed the act because of his drug habit and unpaid debt; He did not shoot with a reasonable belief of imminent danger. Draper had left the scene and had turned over his weapon. - At best, this indicates Appellant feared some future, hypothetical action from Draper, a man whom he had never seen take such action.

{29 Moreover, Appellant cannot be said to have been under the "involuntary subjection" of a superior power. He came along willingly, following discussion of killing Dollar, in hopes of gaining by extinguishing his debt. He was never threatened or bullied. There is no indication Draper was a superior power.

130 Finally, Spunaugle recognizes that a person who fails to avail himself of an opportunity to escape from a situation of duress is not entitled to claim the defense. Appellant had that opportunity when he was left alone with a weapon.

131 Next, Appellant claims he should have been given his requested instruction for first degree "heat of passion" manslaughter as a lesser-included or lesser-related offense. He claims "in light of the evidence of duress and fear and terror on the part of Mr. Hawkins toward Michael Draper and the decedent," a rational juror could have found him guilty of first-degree manslaughter and the absence of that instruction was a violation of due process.

1382 This claim fails for several reasons. First, first degree manslaughter, by definition, requires the killing to have been committed "in the heat of passion" and "without a design to effect death." 21 O.S.1991, § 711. It can hardly be suggested there was no design to effect death here. |

$83 Secondly, heat of passion requires adequate provocation on the part of the deceased toward the defendant, not some implied provocation on the part of a third person sitting in a car a considerable distance away. Williams v. State, 2001 OK CR 9, 22 P.3d 702, 713; Black v. State, 2001 OK CR 5, 21 P.3d 1047, 1067. Here, the victim was asleep on the couch when Appellant fired four shots into his head. While it is true the victim allegedly shot up Appellant's apartment, that event occurred three days earlier. Moreover, Appellant had been told Dollar committed the action before he even went to Dollar's apartment.

134 Thus, there was more than a reasonable opportunity for any passion on the part of Appellant to cool. In Oklahoma, a homicide must occur while the passion still exists and before a reasonable opportunity for the passion to cool. Williams, 22 P.3d at 713.

T35 We find the trial court did not abuse its discretion in refusing to give a first degree heat of passion manslaughter instruction, and, consequently, Appellant suffered no deprivation of his due process rights.

136 In proposition three, Appellant claims the evidence was insufficient to establish the corpus delicti of a conspiracy to commit first degree murder, apart from his own confessions. In other words, he claims the State failed to present sufficient independent evidence that an agreement to kill Dollar existed and that Appellant was a party to that agreement at the time it was made.

187 In Fontenot v. State, 1994 OK CR 42, 881 P.2d 69, 77-78, this Court rejected the corpus delicti line of analysis and reaffirmed this Court's prior adoption of the "standard which requires only that a confession be supported by 'substantial independent evidence which would tend to establish [its] trustworthiness....' Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954), adopted in Jones v. State, 555 P.2d 63, 68 (Okl.Cr.1976)."

1838 We find the following substantial independent and corroborating evidence sufficient to establish the trustworthiness of Appellant's confessions: the victim was found on the couch in the living room; he appeared to have been shot while sleeping; his body was covered by a blanket; he had been shot four times in the head; a .838 caliber revolver was used; the shooter appeared to have stood above the victim; the door to the vie-tim's residence was found unlocked, without any sign of forced entry; the sereen door to the victim's residence was found propped open; co-defendant Zane Johnson's fingerprints were found on an unscrewed, but working, porch light bulb at the residence; a dog was found locked in the utility room; a television was on when the victim was found; police interviews with several possible suspects led to Appellant as a possible suspect; bullets taken from the victim's head were an exact match to bullets found at the Casa Cortez apartments, where Appellant lived; Appellant's apartment had been shot up three days before the victim was killed; police investigations indicated Michael Draper came up with the idea to kill the victim; and both Appellant and the victim owed money to Draper relating to drugs. Furthermore, Appellant testified at trial that his confessions were "pretty much" accurate. _"

139 We find, after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury's verdict, any rational trier of fact could have found the essential elements of the crime of conspiracy beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-204. The information provided Appellant with sufficient notice of what he had to defend, a conspiracy charge concerning an agreement to kill Wayne Dollar on January 29, 1998. At trial, Appellant admitted there were discussions about shooting Dollar while the group was still at Michael Draper's house. We do not find it legally significant that Appellant's trial testimony postponed the agreement a short amount of time or contended that the overt act occurred when Appellant took the gun from Draper, rather than when they drove over to the victim's home. We find Appellant's conspiracy conviction does not violate due process.

1 40 -In proposition four, Appellant claims he was denied effective assistance of counsel under the federal and state constitutions, by the following acts of counsel: coming "perilously close" to conceding guilt to first degree murder during closing argument; unequivocally conceding guilt to conspiracy during closing arguments; the inability to effectively advocate duress due to the trial judge's denial of an instruction on that defense; and failing to object to corpus delicti for conspiracy and/or the use of Appellant's statements without substantial independent evidence of an agreement to kill Dollar and Appellant being a party to that agreement at the time that it was made.

{141 We find, however, Appellant's counsel was not ineffective. First, given the fact that Appellant confessed to the murder before and during trial, it can hardly be said counsel's arguments on this point, some of which are taken out of context by Appellant, could have done anything but come "perilously close" to admitting guilt. Second, we find a reasonable trial strategy in conceding guilt to the lesser conspiracy charge during closing arguments, considering Appellant's confession and trial testimony. We have previously found the trial court did not abuse its discretion in denying a duress instruction. Third, while appellate counsel has made well-reasoned arguments regarding the sufficiency of the evidence of conspiracy, those arguments have been rejected. Trial counsel was not ineffective for failing to raise those same or similar arguments. Appellant has thus failed to show his counsel's representation fell below an objective standard of reasonableness or that any errors by counsel were so serious as to deprive Appellant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

«142 In proposition five, Appellant claims the trial court denied him his right to a fair trial and due process, in violation of the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article II, §§ 7, 9, 19, and 20 of Oklahoma's Constitution, by denying his motion for new trial. His motion was based upon the trial judge's response to the jury's questions, "What is life in years?" and "What is life without parole in years?" The motion was also based upon the jury's consideration of alleged "extrancous matters and influences" in the form of the jurors' opinions that punishment of life without parole meant a defendant could be released after serving a certain terms of years.

(43 At trial, when the jury's note was received, the trial judge informed them in writing, "This is not for your consideration." There is no indication in the record that defense counsel objected to this response. Thus, we review for plain error. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 693.

€44 Appellant points to unsworn telephone interviews with ten jurors and an affidavit from a Public Defender's investigator detailing the results of his investigation, all of which were filed with the motion for new trial, as support for his claim that jurors were confused about what life and life without the possibility of parole meant.

145 However, according to our evidence code, when there is an inquiry into the validity of a verdict, a juror is incompetent to testify about "any matter or statement occurring during the course of the jury's deliberations or as to the effect of anything upon his or another juror's mind or emotions as influencing him to assent to or dissent from the verdict ... or concerning his mental processes during deliberations." 12 O.S.1991, § 2606(B). A juror may testify about "extraneous prejudicial information," i.e. information injected into the deliberation process from the outside, but we do not believe this includes information coming from the juror's own subjective experiences and background, as here. Moreover, in difficult line-drawing cases, the line should be drawn in favor of juror privacy, and the testimony should be disallowed. Weatherly v. State, 1987 OK CR 28, 733 P.2d 1331, 1335.

T 46 This Court has, in numerous instances, stated that the meaning of life without parole is self-explanatory and that an instruction on its meaning is not required. Powell v. State, 2000 OK CR 5, 995 P.2d 510, 536, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258 (2000); Howell v. State, 1998 OK CR 53, 967 P.2d 1221, 1224-25, cert. denied, 528 U.S. 834, 120 S.Ct. 93, 145 L.Ed.2d 79 (1999); McCracken v. State, 1994 OK CR 68, 887 P.2d 323, 334, cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). We need not revisit that issue here.

€§47 Appellant points out, however, that the "clarifying instruction" set forth in Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 320 was not used, although he acknowledges that such an instruction is not required. He then states the trial court "could have, and should have," instructed as follows:

A life sentence means imprisonment for the balance of the defendant's natural life with the possibility of being considered for parole by statute after serving fifteen years imprisonment. A life without parole sentence means imprisonment for the balance of the defendant's natural life without the possibility of ever being considered for parole.

Of course Appellant did not request this instruction. Although we see no immediate problem with this instruction, it cannot be said Appellant was denied a constitutional right by the trial court's failure to issue this instruction sua sponte, especially in light of our previous cases on this issue.

148 With respect to proposition six, we find Appellant's sentence of life imprisonment without parole, although severe, was not so excessive as to shock the conscience of the Court. Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149; Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 291. While Appellant may not have any prior felony convictions, the record indicates he previously received a deferred sentence relating to burglary and concealing stolen property charges, and said sentence had not been resolved at the time the instant erime was committed. Appellant also has a history in the juvenile court system. His actions in firing four bullets into the head of a sleeping victim indicate he is willing to commit the most serious of crimes over drugs and his own indebtedness.

149 With respect to proposition seven, we find no eumulative error. With respect to proposition eight, we find Appellant's convietion for conspiracy and murder do not violate state and federal prohibitions against double jeopardy. This Court has consistently held that "a conspiracy to commit an unlawful act constitutes an independent crime, complete in itself and distinct from the unlawful act contemplated." Littlejohn v. State, 1998 OK CR 75, 989 P.2d 901, 909-10; Huckaby v. State, 1990 OK CR 84, 804 P.2d 447, 450.

DECISION

{50 The judgments and sentences are hereby AFFIRMED.

JOHNSON, V.P.J., and LILE, J., concur.

STRUBHAR, J., concur in result.

CHAPEL, J., concur in part/dissent in part.

STRUBHAR, Judge:

Concur in Results.

[1 I concur in results only for the reason of stare decisis. I continue to believe that a trial court should provide a meaningful answer to questions from the jury when they ask about the meaning of life without parole.

CHAPEL, J.,

Concurring in nPart and Dissenting in Part.

T1 I concur in affirming Hawking's murder' conviction. However, I dissent to affirming (a) his conviction for conspiracy to commit murder and (b) the sentence of life without parole. First, I continue to believe that convictions for murder and conspiracy to commit murder violate the prohibition against double jeopardy. I would reverse Hawking's conspiracy conviction. Further, I have consistently stated that the jury should be informed of the meaning of life without parole. In Malicoat, I said, "Our error in failing to require instruction as to the meaning of life without parole is of constitutional magnitude and has, in my judgment, resulted in death sentences for many who would otherwise -have received the life without parole sentence." Although this is not a capital case, the principle applies. When a jury asks a question about the term: of incarceration meant by life with parole, as these jurors did, it means the jurors are confused. Juror confusion may well result in a longer sentence. Where the trial court can clear up juror confusion, it should. I would remand for resentencing with appropriate instructions.

      . Matthews's incident report also confirmed Appellant had advised he would like to continue the interview.

      . Matthews testified he normally asked defendants to "sleep on it" when they had previously invoked their right to counsel.

      . Appellant quotes from the presentencing report, which was filed several months after the trial, and citations to the transcripts occurring after the Jackson v. Denno hearing to support these factors relating to Appellant's background.

      . The dissent, in Oregon v. Bradshaw, had a more stringent view of what was required for a defendant to initiate further communication, ie. the communication had to be "about the subject matter of the criminal investigation." 462 U.S. at 1053, 103 S.Ct. at 2839. Thus, the four dissenters did not believe the defendant's open-ended question, "what is going to happen to me now?", qualified as the initiation of further communication. However, even using the more-stringent definition set forth in the dissent, hypothetically, Appellant's questions regarding who had been arrested and whether or not he had been blamed would clearly be about the subject matter of the criminal investigation and constitute the initiation of further communication.

      . This ruling is strikingly similar to the one entered by the state court in Oregon v. Bradshaw, a ruling that the Supreme Court let stand.

      . See, e.g., Nance v. State, 1992 OK CR 54, 838 P.2d 513, 515; Hunter v. State, 1992 OK CR 19, 829 P.2d 64, 68; and Broaddrick v. State, 1985 OK CR 108, 706 P.2d 534, 536.

      . See, e.g., Spunaugle v. State, 1997 OK CR 47, 946 P.2d 246, 250("We find the defense of duress is available in Oklahoma to a defendant charged with the crime of first degree malice murder."); Spunaugle, 946 P.2d at 256 (J. Lumpkin dissenting)('the defense of duress is not applicable to first degree malice aforethought murder."); Tully v. State, 1986 OK CR 185, 730 P.2d 1206, 1210 (discussing how the common law's, and hence Oklahoma's, rationale for denial of the duress defense to intentional killing "is premised on the theory that one should risk or sacrifice one's own life rather than take the life of an innocent person.") ,

      . I continue to disagree, however, for the reasons stated in my dissent in Spunaugle.

      . See 21 O.S.1991, § 152(7); 21 O.S.1991, § 155.

      . See Shrum v. State, 1999 OK CR 41, 991 P.2d 1032, 1036.

      . Appellant's request for an evidentiary hearing on this issue, relating to his counsel's alleged failure to obtain his consent before conceding guilt on the conspiracy charge is denied, considering the entire record, Appellant's statements, and his testimony at trial.

      . Appellant suggests, in his brief, that the question asked and the answer given raises an issue similar to that in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct 2187, 129 L.Ed.2d 133 (1994). We disagree. Simmons dealt with a capital trial, where the defendant's future dangerousness was at issue but the jury was never informed the defendant was parole ineligible. Here, the death penalty and statutory aggravating circumstances are not an issue. Furthermore, the specific question asked was to define the two sentencing options, i.e. life and life without parole, in a specific number of years that would be served. The precise number of years to be served is not a proper question, however, and the trial judge correctly advised the jury it was not for their consideration. The trial judge did not, in any way, tell the jury they could not consider the issue of parole in their deliberations. Indeed, the jury's ability to consider that issue was inherent in Jury Instruction 27, which stated that "Murder in the First Degree is punishable by Life or Life without the possibility of parole." We find this instruction is a constitutionally-sufficient explanation of the jury's sentencing options and certainly no violation of Simmons or its progeny.

      . The telephone interviews, if accurate, indicate some jurors believed life imprisonment without the possibility of parole meant exactly what it says, that the defendant would never be a candidate for parole, while others believed a person still might be paroled after serving a certain amount of years (although some of these believed it was possible that a defendant might not ever get out of prison).

      . Moss v. State, 1994 OK CR 80, 888 P.2d 509, 522 (Chapel, J., concurring in part and dissenting in part).

      . See, e.g., Powell v. State, 2000 OK CR 5, 995 P.2d 510, 543, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258 (2000) (Chapel, J., dissenting); Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 605 n. 100, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999); Mollett v. State, 1997 OK CR 28, 939 P.2d 1, 15, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998) (Chapel, J., concurring in result); Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 321, cert. denied, 522 U.S. 832, 118 S.Ct. 99, 139 L.Ed.2d 54 (1997) (Chapel, J., specially concurring); Smallwood v. State, 1995 OK CR 60, 907 P.2d 217, 239, cert. denied, 519 U.S. 980, 117 S.Ct 431, 136 L.Ed.2d 330 (1996) (Chapel, J., specially concurring); McGregor v. State, 1994 OK CR 71, 885 P.2d 1366, 1383 n. 59, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995) (concurring by reason of stare decisis).

      . Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 400 n. 43, cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146 (2000).

      . "A trial court has a duty of special care to evaluate jurors' understanding of the law and clear away any explicit difficulties." Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 312, cert. denied, - U.S. --, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001); Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000); Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).

      . As the majority notes, six years ago we suggested the standard instructions on punishment could be clarified by defining life both with and without parole. Johnson, 928 P.2d at 320.