J. M. F., Appellant
THE STATE OF OKLAHOMA, Appellee.
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE
HONORABLE CASSANDRA WILLIAMS, SPECIAL JUDGE
APPEARANCES AT TRIAL JARROD STEVENSON THOMAS GRIESEDIECK
ATTORNEYS AT LAW COUNSEL FOR APPELLANT
APPEARANCES ON APPEAL DANNY JOSEPH SARAH MACNIVEN APPELLATE
DEFENSE COUNSEL OKLAHOMA INDIGENT DEFENSE SYSTEM COUNSEL FOR
BROWN COLLEEN GALAVIZ ASSISTANT DISTRICT ATTORNEYS
BROWN ASSISTANT DISTRICT ATTORNEY DISTRICT NO. 7 COUNSEL FOR
A Delinquency Petition was filed on January 23, 2017,
charging Appellant, J. M. F., age thirteen, with two counts
of Indecent or Lewd Acts with a Child Under Sixteen, pursuant
to 21 O.S.Supp. 2015, § 1123 (A)(2), in Oklahoma County
District Court Case No. JDL-2017-1. Following a December 2017
trial, the jury found Appellant delinquent on the first count
and not delinquent on the second count. The Honorable
Cassandra Williams, Special Judge, adjudicated Appellant
delinquent pursuant to 10A O.S.Supp. 2014, § 2-2-402.
Appellant appeals from the order adjudicating him a
delinquent child. 10A O.S.2011, § 2-2-601.
Pursuant to Rule 11.2(A)(3) , Rules of the Oklahoma Court
of Criminal Appeals, Title 22, Ch.18, App. (2018), this
appeal was automatically assigned to the Accelerated Docket
of this Court. Oral argument was held June 21, 2018. Rule
11.2(E). As we find merit in Appellant's first
proposition of error, the adjudication is reversed and
remanded for a new trial on Count 1.
Appellant's first proposition of error argues he was
denied due process of law when the trial judge broke
sequestration over defense counsel's objection in
violation of 22 O.S.2011, § 857. Section 857 directs:
After hearing the charge, the jury may either
decide in court, or may retire for deliberation.
If they do not agree without retiring, one or
more officers must be sworn to keep them together
in some private and convenient place, and not to
permit any person to speak to or communicate with
them, nor do so themselves, unless it be by order
of the court, or to ask them whether they have
agreed upon a verdict, and to return them into
court when they have so agreed, or when ordered
by the court.
case, at 10:43 p.m. on December 6, 2017, when the jury was
unable to reach a unanimous verdict on one of the counts,
Judge Williams released the jurors to go home for the
evening. Counsel for Appellant objected. The judge, in
overruling the objection, held that since this is not a
purely criminal case and because of the Legislature's
intent under the Juvenile Code, she did not believe the Rule
of Sequestration applied. She also relied upon 10A O.S.Supp.
2014, § 2-2-402(A), which directs that all adjudicative
hearings shall be conducted according to rules of evidence
and "may be adjourned from time to time." Judge
Williams recessed deliberations until 9:00 a.m. the following
day with an admonition.
A child has a right to demand a trial by jury in adjudicatory
hearings to determine if the child is delinquent. 10A
O.S.2011, § 2-2-401. Section 2-2-402(A) requires
adjudicative hearings be conducted according to the rules of
evidence. We agree that Section 2-2-402(A) allows
adjudicative hearings to be adjourned from time to time, but
once the jury has been charged, Section 857 controls.
The plain purpose and intent of the law regarding
sequestration "is to surround a trial by such safeguards
as will exclude all external and improper influence from the
jury, and thus protect the right of a defendant to a fair and
impartial trial." Evans v. State, 1924 OK CR 4,
18, 221 P. 794, 797, overruled in part on other
grounds by Neill v. State, 1994 OK CR 69,
¶ 33, 896 P.2d 537, 550. As set forth in Johnson v.
This statute [Section 857], or a comparable
version of it, has been on the books in Oklahoma
since 1890. It is a well established part of this
State's jurisprudence and even the earliest
cases found it to mandate that a jury be kept
together between the time the cause is submitted
and the verdict returned. For almost a century,
this Court's treatment of this statute has
remained consistent, perhaps because neither its
language nor its intent is ambiguous. Under the
plain language of Section 857, after the jury has
heard the charge, they are to remain together for
deliberation until a verdict is returned. If they
do not decide in court they must immediately
retire for deliberations after having been put in
the charge ...