McCauley v. State

548 P.3d 461

2024 OK CR 8

Dakoda Aaron MCCAULEY, Appellant

v.STATE of Oklahoma, Appellee

No. F-2022-208

Court of Criminal Appeals of Oklahoma.

Filed April 4, 2024

AN APPEAL FROM THE DISTRICT COURT OF OSAGE COUNTY; THE HONORABLE BURL O. ESTES, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

T. RICHARD O’CARROLL, ATTORNEY AT LAW, 2171 N. VANCOUVER, TULSA OK 74129, COUNSEL FOR DEFENDANT

BRETT MIZE, TARA K. JACK, ASST. DISTRICT ATTORNEYS, OSAGE COUNTY, 628 ½ KIHEKAH, 3RD FLOOR, PAWHUSKA, OK 74056, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

REGINALD C. ARMOR, OKLA INDIGENT, DEFENSE SYSTEM, 111 N. PETERS AVE., SUITE 100, NORMAN, OK 73069, COUNSEL FOR APPELLANT

GENTNER F. DRUMMOND, OKLA. ATTORNEY GENERAL, JOSHUA R. FANELLI, CAROLINE E.J. HUNT, ASST. ATTORNEYS GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

EUGENE BERTMAN, TALLEY, TURNER, STICE, & BERTMAN, P.C., 219 EAST MAIN STREET, NORMAN, OK 73069, AMICUS CURIAE FOR OSAGE NATION

CLINT PATTERSON, ATTORNEY GENERAL, OFFICE OF THE ATTORNEY GENERAL, OSAGE NATION, 1071

GRANDVIEW LANE, PAWHUSKA, OK 74056, AMICUS CURIAE FOR OSAGE NATION

R. BROWN WALLACE, 219 EAST MAIN STREET, NORMAN, OK 73069, AMICUS CURIAE FOR OSAGE NATION

OPINION

HUDSON, JUDGE:

¶1 Appellant, Dakoda Aaron McCauley, was tried and convicted by a jury in the District Court of Osage County, Case No. CF-2018-135, of Manslaughter in the First Degree (Heat of Passion), in violation of 21 O.S.2011, § 711.¹ The jury sentenced McCauley to twenty-two years imprisonment. The Honorable Burl O. Estes, Associate District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury’s verdict.

¶2 McCauley now appeals and alleges four propositions of error.² After careful review, we reject these claims and affirm McCauley’s judgment and sentence.

FACTS

¶3 Given the nature of Appellant’s claims on appeal, a lengthy recitation of the facts surrounding his conviction is unnecessary. In summary, Appellant fatally stabbed thirty-year-old Frankie Cotto during the early morning hours of May 9, 2018. The fatal stabbing occurred at Appellant’s rural home in Barnsdall. Appellant suspected his girlfriend, Carley McCauley,³ was having a sexual relationship with Cotto. On the morning in question, after a night of drinking together, Appellant attacked Cotto, stabbing him repeatedly in the back with Cotto’s own twelve-inch hunting knife as Cotto physically struggled to get away. Cotto suffered numerous injuries during the physical altercation: a laceration on the back of his head that was consistent with blunt force trauma; two stab wounds to his upper back that punctured his right and left lungs; a knife wound to the back of his right upper arm; a fractured nose; bruising to his cheeks and forehead; a laceration and an abrasion/contusion to his lower lip; and abrasions to both his knees and the back of his elbows. Cotto’s death was caused by multiple sharp force injuries. Appellant suffered no significant injuries. At trial, Appellant asserted that he acted in self-defense.

ANALYSIS

1. Jurisdiction

[1] ¶4 Appellant claims in his first proposition of error that the District Court lacked jurisdiction to try him. Appellant argues he is a citizen of the Osage Nation and the crime occurred within the boundaries of the Osage Nation Reservation. Appellant raised this claim for the first time below in a Motion for New Trial filed on February 10, 2022 (O.R. 495-98).⁴ Appellant contended therein, inter alia, that McGirt v. Oklahoma, 591 U.S. —, 140 S. Ct. 2452, 207 L.Ed.2d 985 (2020) overruled prior Tenth Circuit precedent finding that the Osage reservation was disestablished by Congress. See Osage Nation v. Irby, 597 F.3d 1117, 1127 (10th Cir. 2010) ("the Osage reservation has been disestablished by Congress."). The trial court disagreed as does this Court. McGirt did not expressly overrule Osage Nation, nor is the binding precedent established in Osage Nation incongruent with the Supreme Court’s decision in McGirt. Further, the Tenth Circuit’s decision in Osage Nation applies here because of its preclusive effect. Appellant’s claim is entirely derivative of the Osage Na- tion’s original claim, and as such the claim cannot be relitigated here by Appellant.⁵

¶5 For these reasons, we decline to revisit the issue and affirm the vitality of the Tenth Circuit’s decision in Osage Nation. See also Chance v. Zinke, 898 F.3d 1025, 1027 (10th Cir. 2018) (reiterating Congress’ disestablishment of the Osage Reservation); Murphy v. Royal, 875 F.3d 896, 954 (10th Cir. 2017), aff'd sub nom. Sharp v. Murphy, — U.S. —, 140 S. Ct. 2412, 207 L.Ed.2d 1043 (2020) (discussing Osage Nation and reiterating Congress’ disestablishment of the Osage Reservation). Appellant’s claim that his crime occurred in Indian Country is precluded by the prior precedent established in Osage Nation. Proposition I is denied.

2. Courtroom Security Camera

¶6 In his second proposition, Appellant complains that structural error occurred when a portion of the jury’s deliberations in this case were recorded by a courtroom security camera and one of the prosecutors briefly observed the live-streaming video as he walked past a security monitor on his way to the restroom. Appellant argues the "surreptitious" recording of jury deliberations is so offensive to the bedrock principle of secrecy in deliberations that the error in recording the jury deliberations necessitates automatic reversal of his conviction and sentence. For the reasons discussed below, we find that jury privacy infringements are not structural but are instead subject to a rebuttable presumption of prejudice—a presumption heavily incumbent on the State to rebut. The State aptly rebutted the presumption of prejudice resulting from the security video at issue here.

A. Factual Background

¶7 Jury deliberations were held in the courtroom and commenced at approximately 7:45 p.m. The jury sent out multiple questions to the trial court, including around 9:35 p.m., 9:40 p.m. and 9:59 p.m., by the trial court’s clock. Defense counsel agreed with the manner in which the trial court responded to each of the jury’s questions.

¶8 At 10:41 p.m.—roughly three hours into deliberations—defense counsel went on the record to announce that it had "come to [his] attention that there is a video system in the courtroom where people can see the jurors deliberate." Defense counsel asked that the camera be turned off and sought an assurance under oath that the video lacked audio. Matt Clark, an individual presumably involved with the security at the courthouse, advised the court that there was no audio associated with the courtroom’s security camera or any of the cameras in the courthouse. Clark further stated that the video camera could not be turned off, but another court-house employee, Monte Stout, interjected that the camera could indeed be turned off. With this, the trial court directed Stout to turn the security camera off immediately.

¶9 Thereafter, Assistant District Attorney Tara Jack, one of the two trial prosecutors, interposed:

Judge, I just don’t want there to be an implication on that record that [defense counsel] thinks that myself or [Assistant District Attorney Brett Mize] was lookingat any video, we were not. We were not privy to that. We’ve been sitting in the victim witness center when we weren’t up here in this courtroom. We’ve gone to the bathroom maybe one time but other than that, we have not witnessed any video into that courtroom, and we’ve actually stayed very clear of that.

¶10 Though appreciative of Jack’s assurances, defense counsel sought an affirmation from each prosecutor that no information from the courtroom security video was imparted to either of them. At this point, ADA Mize interjected:

Judge, … Ms. Jack doesn’t know this … the fourth floor has a restroom. I walked up there. I saw a camera system, I glanced at it for 30 seconds, whatever it was. I looked at it, I’m not going to tell you that I didn’t. I didn’t gain anything from it. Everybody’s spread out, there’s pictures there.

[Defense counsel] has gotten every response he wanted to every question that has been asked. Everything he wanted and those responses he got. So there’s been no information that I gathered from that. I haven’t watched the camera on the first floor. I haven’t been down there. I’ve been sitting in the victim room. There’s no audio. There’s no problem here.

[Defense counsel]’s asking the security cameras be turned off. There’s one in the courtroom. The Court’s granting that. He’s been assured there’s no audio. He’s gotten every response to every note that he’s wanted so there’s no problem there.

¶11 ADA Mize assured the trial court that he only viewed the camera on that one occasion and described what he observed. Mize further assured the trial court that there was nothing he could glean from the video other than the fact that the jurors were "all standing around in different areas and pacing around." ADA Jack advised too that no information from the security video had been imparted to her. Thereafter, the record was closed.

¶12 At 11:26 p.m., the trial court went back on the record, and defense counsel again urged the issue of the courtroom security video and requested a mistrial. Defense counsel asserted that "jurors would resent like hell being videotaped in their deliberations[.]" Defense counsel further argued that the sheer fact that ADA Mize viewed the video suggested the State gained information and thus an advantage when addressing how to respond to jury questions. The trial comt denied defense counsel’s motion stating:

Motion at this time will be denied based on the fact that the State had the opportunity to be questioned about anything they may have gleaned from a simple video for a matter of seconds. There was an affirmation by both State’s counsel that they gleaned nothing from it. It satisfied defense counsel at that time. It was affirmed by [ ] security [personnel] that there [w

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