Johnny Edward Mize, II v The State Of Oklahoma

F-2019-68

Filed: Mar. 25, 2021

Not for publication

Prevailing Party: The State of Oklahoma

Summary

Johnny Edward Mize, II, appealed his conviction for First Degree Manslaughter (Heat of Passion). His conviction and sentence were for twenty-five years in prison. Judge Rowland led the opinion and found that the State of Oklahoma did not have the right to prosecute Mize. The court decided that since the victim was an Indian and the crime happened on Indian land, the case should not be handled by the State. Judges Kuehn, Lumpkin, Lewis, and Hudson agreed with this decision. Judge Lumpkin, however, expressed concerns about the application of the law in this case.

Decision

The Judgment and Sentence of the district court is VACATED and the matter is REMANDED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED to issue in twenty (20) days from the delivery and filing of this decision.

Issues

• was the evidence insufficient to disprove self-defense beyond a reasonable doubt?
• did the trial court give unnecessary jury instructions which confused and misled the jury?
• did the prosecutor inject personal opinion into closing arguments and vouch for the credibility of a State's witness?
• did the State of Oklahoma have jurisdiction to prosecute him?
• did he receive the effective assistance of trial counsel?
• was his sentence excessive?
• did cumulative error require relief?

Findings

• the court erred regarding jurisdiction
• all other claims are rendered moot

F-2019-68

Mar. 25, 2021

Johnny Edward Mize, II

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

ROWLAND, VICE PRESIDING JUDGE:

Appellant Johnny Edward Mize, II, appeals from his conviction in Tulsa County District Court, Case No. CF-2017-3891, for First Degree Manslaughter (Heat of Passion), in violation of 21 O.S.2011, § 711(2). The Honorable Dawn Moody, District Judge, presided over Mize’s jury trial and sentenced him to twenty-five years imprisonment. Mize appeals raising the following issues: (1) whether the evidence was insufficient to disprove self-defense beyond a reasonable doubt; (2) whether the trial court gave unnecessary jury instructions which confused and misled the jury; (3) whether the prosecutor injected personal opinion into closing arguments and vouched for the credibility of a State’s witness; (4) whether the State of Oklahoma had jurisdiction to prosecute him; (5) whether he received the effective assistance of trial counsel; (6) whether his sentence was excessive; and (7) whether cumulative error requires relief. We find relief is required on Mize’s jurisdictional challenge in Proposition 4, rendering his other claims moot.

Mize claims the State of Oklahoma did not have jurisdiction to prosecute him. He relies on 18 U.S.C. § 1153 and McGirt U. Oklahoma, 591 U.S. 140 S.Ct., 2452 (2020). On August 19, 2020, this Court remanded this case to the District Court of Tulsa County for an evidentiary hearing. The District Court was directed to make findings of fact and conclusions of law on two issues: (a) the Indian status of his victim, Jake Ulrich, and (b) whether the crime occurred within the boundaries of the Muscogee Creek Reservation. Our order provided that, if the parties agreed as to what the evidence would show with regard to the questions presented, the parties could enter into a written stipulation setting forth those facts, and no hearing would be necessary.

On September 25, 2020, the parties appeared before the Honorable Tracy L. Priddy for a status conference. The parties agreed at the status conference and entered written stipulations in which they agreed: (1) that the victim, Jake Ulrich, had some Indian blood; (2) that he was a registered citizen of the Cherokee Nation on the date of the charged offense; (3) that the Cherokee Nation is a federally recognized tribe; and (4) that the charged crime occurred within the Muscogee Creek Reservation. The district court accepted the parties’ stipulations.

On November 16, 2020, the District Court filed its Findings of Fact and Conclusions of Law. The District Court found the facts recited above in accordance with the stipulations. The District Court concluded that the victim, Jake Ulrich, was an Indian under federal law and that the charged crime occurred within the boundaries of the Muscogee Creek Reservation. The District Court’s findings are supported by the record. While the State conceded that the victim was an Indian under federal law and that the charged crime occurred within the boundaries of the Muscogee Creek Reservation, the State did not concede that the federal courts have exclusive jurisdiction over crimes committed against Indians in Indian Country pursuant to 18 U.S.C. §§ 1152. Rather, it argued that the State has concurrent jurisdiction with federal courts over crimes committed by non-Indian defendants against Indian victims in Indian Country. We rejected the State’s argument regarding concurrent jurisdiction in Bosse v. State, 2021 OK CR 3, II 23-28, P.3d. Based upon this precedent, we reject the State’s argument regarding concurrent jurisdiction. The District Court of Tulsa County did not have jurisdiction to prosecute Mize and accordingly, we grant relief on Proposition 4.

DECISION

The Judgment and Sentence of the district court is VACATED and the matter is REMANDED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED to issue in twenty (20) days from the delivery and filing of this decision.

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Footnotes:

1. 18 U.S.C. § 1153
2. McGirt v. Oklahoma, 591 U.S. 140, 140 S. Ct. 2452 (2020)
3. 18 U.S.C. § 1152
4. Bosse v. State, 2021 OK CR 3
5. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
6. Bosse v. State, 2021 OK CR 3
7. Hogner v. State, 2021 OK CR 4
8. Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711.2 (2011) - First Degree Manslaughter (Heat of Passion)
• Okla. Stat. tit. 22 § 3.15 - Mandate

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 18 U.S.C. § 1153 - Major Crimes Act
• 18 U.S.C. § 1152 - Crimes committed in Indian country

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Bosse v. State, 2021 OK CR 3, P.3d
• Hogner v. State, 2021 OK CR 4, P.3d
• McGirt v. Oklahoma, 591 U.S. 140 S.Ct. 2452 (2020)
• Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021)