BURLESON v. SAFFLE

BURLESON v. SAFFLE
2002 OK CR 15
46 P.3d 150
Case Number: CQ-2002-140
Decided: 03/27/2002
Mandate Issued: 04/17/2002
B.J. BURLESON, Appellant -vs- JAMES SAFFLE AND DREW EDMONDSON, Appellee

OPINION ANSWERING CERTIFIED QUESTION OF LAW

CHAPEL, JUDGE:

¶1 The Honorable Carlos F. Lucero, Presiding Judge for a three-judge panel of the United States Court of Appeals for the Tenth Circuit, has certified the following question pursuant to the Revised Uniform Certification of Questions of Law Act:

On August 1, 1997, the Oklahoma Court of Criminal Appeals held that "where a vehicle is used to facilitate the intentional discharge of a weapon during a single transaction or 'shooting event' only one count of Using a Vehicle to Facilitate the Intentional Discharge of a Firearm [Okla. Stat. Tit. 21, § 652(B)] is appropriate." Locke v. State,

FACTS

¶2 On February 16, 1995, Burleson and four friends had a dispute with two other men. They arranged to meet the men and fight, but instead drove by their house. Burleson fired approximately five shots at the men from the car; one shot hit and paralyzed one victim. Burleson was convicted of two counts of violating Oklahoma's "drive-by" shooting statute,

¶3 Burleson's federal petition for writ of habeas corpus was referred to a magistrate judge. The magistrate recommended that the district court deny the petition because (1) the nonretroactivity principle set forth in Teague v. Lane

QUESTION ANSWERED

¶4 The Tenth Circuit has asked this Court to clarify its interpretation of the statute prohibiting the use of a vehicle to facilitate the discharge of a firearm (drive-by shootings). As the Tenth Circuit notes, this question turns on the intent of the Legislature: whether this statute criminalizes a course of action rather than a discrete act.

¶5 Drive-by shooting, like shooting with intent to kill or assault and battery with a deadly weapon, is indisputably a crime against the person. The Legislature intended to stop people from using vehicles to aid them in shooting other people, and the statute's focus is on behavior which aids the intentional shooting. Crimes against the person are separate and distinct if they are directed at separate victims. "[I]t has long been part of our jurisprudence that, where crimes against the person are involved, even though various acts are part of the same transaction, they will constitute separate and distinct crimes where they are directed at separate and distinct persons. Temporal and/or spatial proximity or the fact that the weapon used was, or was not, identical, are not material."

¶6 Other jurisdictions, interpreting similar provisions, have reached the same conclusion.

The primary purpose of the proscription against double punishment is to insure that [46 P.3d 153] the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.

¶7 The drive-by shooting statutes require the specific intent to discharge a weapon in conscious disregard for the safety of another person or persons.

¶8 THEREFORE, we find that the Legislature intended to allow multiple counts for the offense of use of a vehicle to facilitate the intentional discharge of a weapon, where multiple victims are involved.

OPINION BY: CHAPEL, J.

FOOTNOTES

LUMPKIN, PRESIDING JUDGE: DISSENTS

¶1 I dissent to the Court's decision that

I concur in the results reached by the Court in this case. However, I do so based on an application of the statutory language contained in

¶2 Locke is the only published case addressing the issue of multiple prosecutions under § 652(B). Therefore, it is the only decision binding on this Court. See Rule 3.5(C)(3), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1999). In determining that Locke was wrongly decided, the Court is ignoring established precedent in order to achieve a desired result in a particular case.

¶3 However, I recognize the decision in Locke was not specifically declared to be retroactive. Therefore, it cannot be applied to Appellant's case which was decided before Locke.