Floyd Joseph Ball, Jr. v State Of Oklahoma

F-2020-54

Filed: Jun. 3, 2021

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Floyd Joseph Ball, Jr. appealed his conviction for kidnapping and other crimes. His original conviction resulted in a total sentence of 31 years, but he argued that the court did not have the power to try him because he is recognized as an Indian and the crimes occurred in Indian Country. The Oklahoma Court of Criminal Appeals found that Ball has Indian heritage and that the crimes were committed in the Chickasaw Reservation. Therefore, the court decided that the State of Oklahoma did not have the right to prosecute him. The judges ruled to reverse and dismiss Ball's case, and this means he won't face those charges anymore, as the trial court also found his original lawyer did not need to bring up the jurisdiction issue. The judges in this case appeared to agree on the outcome, with no noted dissenting opinions.

Decision

The Judgment and Sentence in this case is hereby reversed and the case remanded to the District Court of McClain County with instructions to dismiss the case. The Judgment and Sentence of the District Court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The MANDATE is not to be issued until twenty (20) days from the delivery and filing of this decision.

Issues

• Was there a determination of Appellant's Indian status for purposes of federal law?
• Did the court find that the crimes occurred in Indian Country?
• Was trial counsel ineffective for failing to challenge jurisdiction based on Appellant's Indian status and the location of the crimes?
• Did the District Court have jurisdiction to adjudicate the charges against Appellant?
• Was the issue of ineffective assistance of counsel rendered moot by the findings on jurisdiction?

Findings

• The court erred in finding the State of Oklahoma lacked jurisdiction to prosecute Appellant.
• The trial court did not abuse its discretion in rendering Appellant's claim of ineffective assistance of counsel moot.
• The Judgment and Sentence of the District Court is reversed and remanded with instructions to dismiss the case.

F-2020-54

Jun. 3, 2021

Floyd Joseph Ball, Jr.

Appellant

v

State Of Oklahoma

Appellee

OPINION

JOHN D. HADDEN HUDSON, JUDGE:

Appellant, Floyd Joseph Ball, Jr., was convicted at a jury trial for the crimes of Kidnapping (Count 1); Assault and Battery with a Dangerous Weapon (Count 2); Aggravated Assault and Battery (Count 3); and Disrupt/Prevent/Interrupt an Emergency Telephone Call (Count 4), in the District Court of McClain County, Case No. CF-2018-157. The jury recommended sentences of twenty years imprisonment on Count 1, five years imprisonment on Count 2, five years imprisonment on Count 3, and one year in the county jail plus a $3,000.00 fine on Count 4. The Honorable Charles Gray, Associate District Judge, presided at trial and sentenced Appellant in accordance with the jury’s verdicts. Judge Gray ordered the sentences for Counts 1-3 to run consecutively each to the other but concurrently with the Count 4 sentence. Ball now appeals and raises nine propositions of error.

In Proposition VIII, Appellant complains that trial counsel was ineffective for not objecting to the state court’s jurisdiction in this case. Appellant claims that he is an Indian for purposes of federal law and that the crimes charged in this case occurred in Indian Country. Appellant also filed an Application to Supplement Record or for Evidentiary Hearing on Sixth Amendment Claims challenging defense counsel’s effectiveness for failing to raise the jurisdictional claim set forth in Proposition VIII. See McGirt v. Oklahoma, 140 S. Ct. 2452 (2020). Pursuant to McGirt, Appellant’s claim raises three separate questions: (a) his Indian status, (b) whether the crimes occurred in Indian Country; and (c) whether trial counsel was constitutionally ineffective for failing to challenge jurisdiction based on these factors. These issues require fact-finding. We therefore remanded this case to the District Court of McClain County for an evidentiary hearing on these issues.

Recognizing the historical and specialized nature of this remand for evidentiary hearing, we requested the Attorney General and District Attorney work in coordination to effect uniformity and completeness in the hearing process. Upon Appellant’s presentation of prima facie evidence as to his legal status as an Indian and as to the location of the crime in Indian Country, the burden shifts to the State to prove it has jurisdiction. The District Court was ordered to determine whether Appellant has some Indian blood and is recognized as an Indian by a tribe or the federal government. The District Court was further ordered to determine whether the crimes in this case occurred in Indian Country. In so doing, the District Court was directed to consider any evidence the parties provided, including but not limited to treaties, statutes, maps, and/or testimony. Finally, we ordered the District Court to determine whether trial counsel was constitutionally ineffective for failing to raise this issue under the two-part standard for evaluating claims of ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). We also directed the District Court that in the event the parties agreed as to what the evidence would show regarding the questions presented, the parties may enter into a written stipulation setting forth those facts upon which they agree and which answer the questions presented and provide the stipulation to the District Court. The District Court was also ordered to file written findings of facts and conclusions of law with this Court.

The record before this Court shows the parties presented a written stipulation to the District Court concerning the above issues in lieu of an evidentiary hearing. On March 26, 2021, Judge Gray entered a written order adopting the parties’ stipulations and making written findings of fact and conclusions of law relating to the three questions in our remand order. The record indicates that attorneys from the Oklahoma Attorney General’s Office, the McClain County District Attorney’s Office, and counsel for Appellant authored and signed the stipulation and presented it to the District Court. In its written findings of fact and conclusions of law, the District Court found that Appellant is 1/8th degree Indian blood of the Mississippi Choctaw Tribe; that Appellant was an enrolled member of the Choctaw Nation of Oklahoma on the date of the charged crimes; that the Choctaw Nation of Oklahoma is recognized by the federal government; and that the charged crimes in this case occurred within the Chickasaw Reservation. The District Court concluded based on these findings that Appellant was an Indian and that the location of Appellant’s crimes occurred in Indian Country for purposes of criminal jurisdiction.

Concerning Appellant’s claim that trial counsel was constitutionally ineffective for failing to raise this jurisdictional claim, the trial court found as follows: The parties stipulate, and this court finds that it lacks jurisdiction of defendant Ball for which reason his ancillary claim of ineffective assistance of trial counsel for failing to raise the jurisdictional claim in the trial court is moot. Although the agreed stipulation of the parties was not made part of the record on appeal transmitted to this Court, Appellant has attached it to his supplemental brief as Exhibit A. It is signed by counsel for the parties and fully supports the District Court’s written findings.

On April 26, 2021, both parties filed supplemental briefs with this Court after remand. Both parties acknowledge our recent decision in Bosse v. State, 2021 OK CR 3, 484 P.3d 286, recognizing the Chickasaw Nation’s continuing existence. Both parties also cite and attach to their briefs our unpublished decision in Floyd Joseph Ball v. State of Oklahoma, No. C-2019-263, slip op. (Okl.Cr. Apr. 1, 2021), an appeal from McIntosh County, in which we acknowledged Appellant’s Indian status in that case. In its brief, the State acknowledges the District Court accepted the parties’ stipulations as discussed above and the District Court’s findings. The State contends in its brief that should this Court find Appellant is entitled to relief based on the District Court’s findings, this Court should stay any order reversing the convictions for twenty (20) days.

After thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts, and the briefs of the parties, we find that under the law and evidence relief is warranted. Based upon the record before us, the District Court’s findings of fact and conclusions of law are supported by the stipulations jointly made by the parties on remand. We therefore find Appellant has met his burden of establishing his status as an Indian, having 1/8th degree Indian blood of the Mississippi Choctaw Tribe and being a member of the Choctaw Nation of Oklahoma. We further find Appellant met his burden of proving the crimes in this case occurred on the Chickasaw Reservation and, thus, occurred in Indian Country. Pursuant to McGirt, we find the State of Oklahoma did not have jurisdiction to prosecute Appellant in this matter. The trial court did not abuse its discretion in concluding that this finding renders the ancillary claim of ineffective assistance of counsel moot.

The Judgment and Sentence in this case is hereby reversed and the case remanded to the District Court of McClain County with instructions to dismiss the case.

DECISION

The Judgment and Sentence of the District Court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The MANDATE is not to be issued until twenty (20) days from the delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF MCCLAIN COUNTY

THE HONORABLE CHARLES GRAY
ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

CHAD JOHNSON
OKLA. INDIGENT DEF. SYSTEM
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL

CHAD JOHNSON
OKLA. INDIGENT DEF. SYSTEM
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR APPELLANT

LESLEY MARCH
ASST. DISTRICT ATTORNEY
MCCLAIN COUNTY
121 NORTH 2ND, SUITE 212
PURCELL, OK 73080
COUNSEL FOR THE STATE

MIKE HUNTER
ATTORNEY GENERAL OF OKLAHOMA
JOSHUA FANELLI
ASST. ATTORNEY GENERAL
313 N.E. 21 ST STREET
OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: HUDSON, J.
KUEHN, P.J.: CONCUR
ROWLAND, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR IN RESULTS
LEWIS, J.: CONCUR IN RESULTS

LUMPKIN, JUDGE: CONCURRING IN RESULTS: Bound by my oath and the Federal-State relationships dictated by the U.S. Constitution, I must at a minimum concur in the results of this opinion. While our nation’s judicial structure requires me to apply the majority opinion in the 5-4 decision of the U.S. Supreme Court in McGirt v. Oklahoma, – U.S. , 140 S. Ct. 2452 (2020), I do so reluctantly. Upon the first reading of the majority opinion in McGirt, I initially formed the belief that it was a result in search of an opinion to support it. Then upon reading the dissents by Chief Justice Roberts and Justice Thomas, I was forced to conclude the Majority had totally failed to follow the Court’s own precedents, but had cherry picked statutes and treaties, without giving historical context to them. The Majority then proceeded to do what an average citizen who had been fully informed of the law and facts as set out in the dissents would view as an exercise of raw judicial power to reach a decision which contravened not only the history leading to the disestablishment of the Indian reservations in Oklahoma, but also willfully disregarded and failed to apply the Court’s own precedents to the issue at hand. My quandary is one of ethics and morality. One of the first things I was taught when I began my service in the Marine Corps was that I had a duty to follow lawful orders, and that same duty required me to resist unlawful orders. Chief Justice Roberts’s scholarly and judicially penned dissent, actually following the Court’s precedents and required analysis, vividly reveals the failure of the majority opinion to follow the rule of law and apply over a century of precedent and history, and to accept the fact that no Indian reservations remain in the State of Oklahoma.

The result seems to be some form of social justice created out of whole cloth rather than a continuation of the solid precedents the Court has established over the last 100 years or more. The question I see presented is should I blindly follow and apply the majority opinion or do I join with Chief Justice Roberts and the dissenters in McGirt and recognize the emperor has no clothes as to the adherence to following the rule of law in the application of the McGirt decision? My oath and adherence to the Federal-State relationship under the U.S. Constitution mandate that I fulfill my duties and apply the edict of the majority opinion in McGirt. However, I am not required to do so blindly and without noting the flaws of the opinion as set out in the dissents. Chief Justice Roberts and Justice Thomas eloquently show the Majority’s mischaracterization of Congress’s actions and history with the Indian reservations. Their dissents further demonstrate that at the time of Oklahoma Statehood in 1907, all parties accepted the fact that Indian reservations in the state had been disestablished and no longer existed. I take this position to adhere to my oath as a judge and lawyer without any disrespect to our Federal-State structure. I simply believe that when reasonable minds differ, they must both be reviewing the totality of the law and facts.

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Footnotes:

1. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
2. Bosse v. State, 2021 OK CR 3, 484 P.3d 286.
3. Floyd Joseph Ball v. State of Oklahoma, No. C-2019-263, slip op. (Okl.Cr. Apr. 1, 2021).
4. Strickland v. Washington, 466 U.S. 668 (1984).
5. Okla. Stat. tit. 18 § 2011.
6. Okla. Stat. tit. 18 § 2040.
7. John Collier, Commissioner of Indian Affairs, Memorandum of Explanation (regarding S. 2755), p. 145, hearing before the United States Senate Committee on Indian Affairs, February 27, 1934.
8. Okla. Stat. tit. 25 § 2001.
9. Okla. Stat. tit. 25 § 2005.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - General definitions for use in the criminal code
• Okla. Stat. tit. 47 § 11-801(B)(1) (2011) - Definitions for motor vehicle and traffic violations

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
• Bosse v. State, 2021 OK CR 3, 484 P.3d 286
• Hogner v. State, 2021 OK CR 4, P.3d
• Floyd Joseph Ball v. State of Oklahoma, No. C-2019-263, slip op. (Okl.Cr. Apr. 1, 2021)