Opinion
F-2023-931
06-13-2024
NI'AVIEN LEE GOLDEN, Appellant v. THE STATE OF OKLAHOMA, Appellee
Benjamin Fu Attorney for Defendant Kevin Keller Asst. District Attorney Attorney for State Benjamin Fu Attorney for Appellant Kevin Keller Asst. District Attorney Attorneys for Appellee
An Appeal from the District Court of Tulsa County the Honorable Clifford Smith, Assoc. District Judge
Appearances at Trial
Benjamin Fu Attorney for Defendant
Kevin Keller Asst. District Attorney Attorney for State
Appearances on Appeal
Benjamin Fu Attorney for Appellant
Kevin Keller Asst. District Attorney Attorneys for Appellee
OPINION
LEWIS, JUDGE
¶1 Ni'Avien Lee Golden, Appellant, was ordered held for trial as an adult after preliminary examination on amended charges of Count 1, second degree murder, in violation of 21 O.S.2021, § 701.8; and Counts 2 through 4, assault and battery with a dangerous weapon, in violation of 21 O.S.2021, § 645, in the District Court of Tulsa County, Case No. YO-2023-24. Appellant moved to dismiss the charges, claiming immunity from prosecution pursuant to the Stand Your Ground law. See generally 21 O.S.2021, § 1289.25. The Honorable Clifford Smith, Associate District Judge, denied the motion to dismiss. Mr. Golden appeals.
The State originally charged Appellant with first degree murder and three counts of shooting with intent to kill in Case No. CF-2022-3805, but amended the charges at preliminary examination and filed a new youthful offender (YO) case. The examining magistrate ordered a certification study and, after hearing, denied Appellant's motions for certification as a juvenile or youthful offender and ordered Appellant to stand trial as an adult.
FACTS
¶2 Only a brief statement of the facts is necessary to the resolution of this appeal. Appellant is charged with murder and felony battery arising from a verbal and physical altercation involving multiple persons shortly after a football game at Tulsa's McClain High School in September, 2022. Four people were injured--one fatally--when Appellant allegedly fired on the crowd with a pistol he was carrying during this incident. Some evidence indicates that Appellant initially sought out a difficulty with one or more rivals, but also may have been encircled at some point, punched in the face, and knocked down just before he produced the pistol and opened fire.
ANALYSIS
¶3 In his sole proposition of error, Appellant argues the district court erred in ruling that he was engaged in unlawful activity at the time of his use of deadly force and thus barred from obtaining Stand Your Ground immunity. We review the trial court's denial of Stand Your Ground immunity for an abuse of discretion, Reynolds v. State, 2022 OK CR 14, ¶ 12, 516 P.3d 249, 255, defined as "a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented." Vanderpool v. State, 2018 OK CR 39, ¶ 32, 434 P.3d 318, 325.
The State sees Appellant's proposition as combining separate claims of error in violation of Rule 3.5(A)(5), Rules of the Court of Criminal Appeals, 22 O.S., Ch. 18, App. (2024). We interpret Appellant's sub-propositions A through C as advancing the logical premises supporting his main claim.
¶4 A defendant seeking pre-trial immunity under section 1289.25 bears the burden to establish by a preponderance of the evidence that the use of force was justified. Reynolds, 2022 OK CR 14, ¶ 15, 516 P.3d at 255. Appellant presents his argument in three parts: He first maintains that because he is now an adult in the eyes of the law, his carrying of a firearm on the day of the shootings when he was yet sixteen years old was not a crime, and thus not an "unlawful activity" that precludes Stand Your Ground immunity.
¶5 Second, he argues that the misdemeanor of illegally carrying a firearm is not the type of unlawful activity that removes his otherwise justified use of force from Stand Your Ground immunity. Finally, he argues that to treat him as an adult for disadvantageous purposes of trial and punishment without beneficially relating his adult status back to the date of his possession of a firearm denies him equal protection.
¶6 First, we address Appellant's claim that his possession of a firearm on the date of the shootings was not a crime because of his subsequent certification to stand trial as an adult. The significance of this premise is found in the language of 21 O.S.2021, § 1289.25 (D), which provides:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony (emphasis added).
¶7 If Appellant could establish that he was attacked in a place where he had a right to be and used only such force as he reasonably believed necessary to prevent death or great bodily injury, he would be immune from prosecution. 21 O.S.2021, § 1289.25 (F). On the other hand, if he was engaged in "unlawful activity" when he used deadly force, he is ineligible for immunity by the terms of section 1289.25 (D).
¶8 No act or omission is deemed a crime under state law except by enactment of the Legislature in the Oklahoma Statutes. 21 O.S.2021, § 2. As pertinent here, Title 21, O.S.2021, section 1273 provides:
It shall be unlawful for any child to possess any of the arms or weapons designated in Section 1272 of this title, except firearms used for participation in hunting animals or fowl, hunter safety classes, education and training in the safe use and handling of firearms, target shooting, skeet, trap or other sporting events or competitions... As used in this section, "child" means a person under eighteen (18) years of age.21 O.S.2021, § 1273 (C), (E) (emphasis added). Violation of section 1273 is a misdemeanor punishable by a fine of $100.00 to $250.00 and up to thirty days in jail. 21 O.S.2021, § 1276.
Pistols, revolvers, shotguns, and rifles are among the weapons designated by section 1272.
A misdemeanor committed by a person under eighteen is a delinquent act ordinarily subject to adjudication and treatment within the juvenile justice system. See 10A O.S.2021, §§ 2-1-103 (6) (defining juvenile); (13) (defining delinquent child or juvenile as one who, inter alia, violates state or federal law); 2-2-403 (providing certification as an adult for delinquent act that would be felony if committed by an adult).
¶9 We hold that Appellant's subsequent judicial certification as an adult on these felony charges does not relate back the date of these offenses in the way he would wish. Whether one will face trial and punishment as an adult rather than rehabilitation and treatment as a juvenile or youthful offender involves a statutory assessment of the crime(s) and the offender's potential amenability to treatment and rehabilitation. See 10A O.S.2021, §§ 2-2-403 (A) and 2-5-206A (B)(stating statutory factors for certification). This determination has nothing at all to do with whether Appellant was chronologically under age eighteen when he possessed a firearm without a purpose allowed by law, and thus violated the state statute regulating firearms possession.
¶10 On the date of these shootings, Appellant was sixteen years old and in possession of a concealed and loaded pistol on the crowded premises of a high school football game in apparent violation of section 1273. His later certification to stand trial as an adult cannot remit or pardon an act that was criminal and delinquent when it occurred. Indeed, this fiction contradicts the whole purpose of certification for juveniles and youthful offenders. See 10A O.S.Supp.2022, § 2-5-202 (B) (stating Legislature's purpose to hold youths accountable for serious crimes while affording rehabilitation for amenable offenders).
¶11 We also reject the argument that the illegal act of carrying the firearm allegedly involved in these shootings was a "minor infraction" of law rather than the kind of unlawful activity contemplated in section 1289.25 (D). To hold otherwise minimizes the grave danger of juveniles carrying weapons in anticipation of situations just such as this one, with the resulting escalation of verbal or physical conflicts into tragic and deadly confrontations.
We are not troubled by Appellant's speculation that the statute prohibiting underage carry of firearms would deny Stand Your Ground immunity to an underage occupant of a home who uses deadly force against an intruder. Such an intruder is presumed by the Stand Your Ground law to act "with the intent to commit an unlawful act involving force or violence." 21 O.S.2021, § 1289.25 (E). A person who takes up arms against a home intruder is in a very different situation, practically and legally, than an underage person who carries a concealed firearm to a high school football game. See District of Columbia v. Heller, 554 U.S. 570, 632-34 (2008) (finding it highly improbable that authorities would enforce a general ban on discharging firearms against one acting in self-defense).
¶12 In Dawkins v. State, 2011 OK CR 1, ¶ 11, 252 P.3d 214, 218, this Court held that the defendant's possession of an illegally modified (sawed-off) shotgun that he used to shoot the victim was an "unlawful activity" within the meaning of section 1289.25 (D) which precluded Stand Your Ground immunity. The Court said that:
[T]he Legislature's intent was to exclude from the benefit of this statute persons who are actively committing a crime, not persons who have or may have committed a crime in the past. Examples of current crimes include, but are not limited to, use of an illegal weapon in commission of the homicide, possession of illegal drugs on the premises, or an ongoing assault by the defendant against another person in the residence.Id. (emphasis added).
¶ 13 Dawkins rejected the argument that the unlawful activity must have some causal "nexus" to the allegedly justified use of force. We instead concluded that where the Legislature declined to specify the types of unlawful activity that would preclude Stand Your Ground immunity, this Court would "not attempt to create such distinctions." Id., 2011 OK CR 1, ¶ 10, 252 P.3d at 218.
¶14 Appellant understandably points to language in Dawkins venturing that unlawful activity under section 1289.25 (D) would not include "minor infractions of the law," and giving the examples of being illegally parked, having outdated vehicle registration, outstanding warrants for minor offenses, or back due child support. See Dawkins, 2011 OK CR 1, ¶ 11, 252 P.3d at 218.
The State argues that even the "minor infraction" discussion in Dawkins improperly restricts the broad meaning of unlawful activity in section 1289.25 and urges us to overrule this point in Dawkins. We have no difficulty in concluding that the unlawful activity in this case was not minor and thus have no need to further consider what offenses would be minor under Dawkins.
¶15 However, we see little or no meaningful difference between our reasoning and resolution in Dawkins and this case, considering the evidence that Appellant here was actively committing a crime at the time of the shootings by being "in possession of an illegal weapon" and thus "engaged in an unlawful act." Id., 2011 OK CR 1, ¶¶7-8, 252 P.3d at 218.
¶16 Finally, Appellant seems to argue that the guarantee of equal protection, as well as statutory language granting him all adult rights and protections when facing trial as an adult, dictate that his underage carrying of a firearm was either a minor offense or no crime at all for purposes of Stand Your Ground immunity. We respectfully disagree.
¶17 We first conclude that these statutory classifications do not burden any fundamental rights. Appellant cannot seriously claim a right to carry a concealed firearm in public while still a child in violation of state law. Nor is Appellant denied any fundamental right by the loss of Stand Your Ground immunity. He retains the right to present a claim of self-defense or justification to a judge or jury at trial. See Reynolds, 2022 OK CR 14, ¶ 15, 516 P.3d at 255 (observing that loss of pre-trial immunity does not preclude claim of self-defense or justification at trial); Ball v. State, 2007 OK CR 42, ¶ 29, 173 P.3d 81, 89 (allowing jury consideration of a theory of defense supported by prima facie evidence).
S. Cornell , "Infants" and Arms Bearing in the Era of the Second Amendment: Making Sense of the Historical Record, 40 Yale L. & Pol'y Rev. 1 (Fall 2021) (concluding that historical evidence showing Second Amendment involved no right to bear arms for minors presents "an almost unbreachable barrier" to current recognition of such a right under Heller, supra, n.5).
¶18 We also find that the classifications here are rationally related to legitimate State purposes and are neither arbitrary nor capricious. See Callaway v. City of Edmond, 1990 OK CR 25, ¶ 10, 791 P.2d 104, 106 (holding age classifications are constitutional if reasonably related to legitimate state interests). Appellant was afforded a judicial determination that he should stand trial as an adult. This classification is reasonably related to deterring juveniles who commit serious crimes and are unlikely candidates for rehabilitation.
¶19 The classification of Appellant as a child for purposes of his alleged crime of firearms possession on the night of the shootings also bears a rational relationship to legitimate State interests. The statute prohibiting a person under eighteen from possessing a firearm without a legitimate reason is reasonably related to discouraging the carrying and potential use of deadly weapons by immature persons. This classification does not deny Appellant equal protection.
¶20 We find no abuse of the trial court's discretion in its conclusion and judgment that Appellant was engaged in unlawful activity when he allegedly used deadly force and was therefore precluded from obtaining Stand Your Ground immunity.
DECISION
¶21 The judgment is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2024), the MANDATE is ORDERED issued upon delivery and filing of this decision.
ROWLAND, P.J.: Concur
MUSSEMAN, V.P.J.: Concur
LUMPKIN, J.: Concur in Results
HUDSON, J: Concur
LUMPKIN, JUDGE: CONCUR IN RESULTS
¶1 While I agree with both the analysis of the law and the result rendered by this decision, I write to point out a couple of procedural matters that should not be overlooked.
¶2 First, I find the State is correct that the single proposition violates this Court's Rule 3.5(A)(5) by incorporating several legal issues in a single proposition of error, thus risking the possibility of waiving an issue on appeal. Attorneys seeking to practice in the area of appellate law must first read and understand the rules of the court before which they seek to practice. The purpose of Rule 3.5(A)(5) is simple -- to ensure that each individual legal issue is fully adjudicated and not overlooked. Appellate courts address legal issues separately, not collectively; based on the law applicable to a particular legal principle. Seeking to combine different issues of law into a single proposition brings about potential conflict in the consideration of the legal issues raised. It can also result in a separate issue being raised so vaguely as to render it easily overlooked. Thus, adherence to Rule 3.5(A)(5) ensures that only one legal issue is raised in a single proposition of error so that all valid claims are fully addressed. While I can understand the Court's reluctance to apply the Rule in this case, the court should not develop the habit of making excuses for parties who fail to follow this Court's rules.
¶3 Secondly, I continue to stand by the analysis in my separate writings to Reynolds v. State, 2022 OK CR 14, 516 P.3d 249 and McNeely v. State, 2018 OK CR 18, 422 P.3d 1272, 1276, that the use of the terms "immune" and "immunity" in Section 1289.25 are misnomers and actually conflict with other terms defined in Title 21. As I pointed out in Reynolds:
... the use of the term "immunity" is not totally appropriate [under Section 1289.25] since only the executive branch of the government, i.e., the prosecutor, can propose a grant of immunity. See Mills v. State, 1985 OK CR 58, ¶ 12, 733 P.2d 880, 882 ("[T]he immunity provision in Art. II, § 27 of the Oklahoma Constitution[] extends the privilege only to witnesses testifying for the State."); United States v. Apperson, 441 F.3d 1162, 1203-04 (10th Cir. 2006) (holding courts have no inherent authority to grant a witness use immunity in absence of prosecution's deliberate attempt to distort fact finding process); United States v. LaHue, 261 F.3d 993, 1014 (10th Cir. 2001) ("[T]he district court did not abuse its discretion in refusing to grant immunity to the twelve unnamed defense witnesses, because use immunity is the sole prerogative of the executive branch...."). The court's role is only to confirm the immunity which the prosecution has granted. See Harris v. State, 1992 OK CR 74, ¶ 17, 841 P.2d 587, 601 (holding immunity attaches after hearing before court reporter, when court approves written immunity agreement with written order)... The better method with which to address actions raising Section 1289.25 claims, reflecting consistency with our statutes and case law, is to question whether the use of deadly force is "justified" when the requirements of the statute are met. As discussed above, the State is the only authority which can grant immunity from prosecution. In Oklahoma, District Attorneys have the authority to investigate and initiate criminal charges and to determine whether the use of deadly force is justified pursuant to Section 1289.25. The Legislature should amend the statute to make its wording consistent with other statutes and our case law, thus resolving any potential conflicts in its application. 2022 OK CR 14, ¶¶ 3-4, 516 P.3d at 260-261 (Lumpkin, J. CIR) (internal citations omitted).