Date: 03-17-2006

Case Style: State of Oklahoma, et al. v. One Thousand Two Hundred Sixty-Seven Dollars

Case Number: 2006 OK 15

Judge: Opala

Court: Supreme Court of Oklahoma on appeal from the District Court of Tulsa County

Plaintiff's Attorney:

Timothy H. Harris, District Attorney, Charles Creekmore, Assistant District Attorney, Tulsa, Oklahoma, for Appellee

Scott Rowland, General Counsel, Brian Surber, Deputy General Counsel, Oklahoma City, Oklahoma, for amicus curiae, Oklahoma Bureau of Narcotics and Dangerous Drugs Control

Suzanne McClain Atwood, Executive Director, Oklahoma City, Oklahoma, for amicus curiae, Oklahoma District Attorneys Associatio

Defendant's Attorney:

Carl Demetrius Mitchell, pro se, Helena, Oklahoma, for Appellants

Description:

1 The dispositive issues on certiorari are: (1) Did the trial court err in refusing to consolidate two discrete claims to money seized in separate arrests? (2) Is summary process appropriate in statutory civil in rem forfeiture cases? (3) Is the trial court's judgment of forfeiture supported by a preponderance of the evidence? We answer the first question in the negative and the second and third questions in the affirmative.

I

THE ANATOMY OF LITIGATION

2 By invoking the seizure-and-forfeiture provisions of the Uniform Controlled Dangerous Substances Act (Act)(63 O.S.2001 §2-501 et seq), the State of Oklahoma (State) sought on 24 September 2002 forfeiture of $1,267.00 seized in an arrest. Notice was sent to the property's owner, Carl Demetrius Mitchell (Mitchell or claimant). The State's claim to forfeiture rests on three grounds - the money was (1) used or intended to be used to facilitate a violation of the Act;2 or (2) furnished or intended to be furnished in exchange for a controlled dangerous substance or was proceeds traceable to such an exchange;3 or (3) found in close proximity to forfeitable substances, to forfeitable drug manufacturing or distribution paraphernalia or to forfeitable records of the importation, manufacture, or distribution of forfeitable substances.4 The arrest resulted in a criminal prosecution in which Mitchell was charged with trafficking in illegal drugs, possession of a firearm after former conviction of a felony and driving without a seatbelt. After pleading nolo contendere, claimant was convicted of possession with intent to distribute.

3 According to the arresting officer's affidavit admitted as evidentiary material in summary process: (1) he brought about a traffic stop of a vehicle (on 14 May 2002) in which claimant was a passenger: (2) claimant exited from the car and began to run; (3) he appeared to be carrying something when he got out of the vehicle; (4) the officer chased claimant and observed him drop a small baggy; (4) during the chase he also observed that claimant was carrying additional baggies and a gun; (5) the claimant stopped when the officer pulled out a gun and ordered him to halt; (6) the officer retrieved the baggies that were found on claimant's person which contained tan rocks that he suspected of being cocaine; (7) the officer returned to the location where claimant dropped one of the baggies and noticed that it contained tan rocks that he also suspected of being cocaine; (8) when field tested, the tan rocks showed positive results for crack cocaine; (9) the total amount of cocaine seized was 37.10 grams, which is more than the amount required for a trafficking charge; (10) the officer also seized $1,267.00 which the claimant was carrying on his person; and (11) claimant was not legitimately or lawfully employed at the time of his arrest. The police department's forensic laboratory tested the tan substance and found it to weigh 31.85 grams and to contain cocaine (base)(a schedule II controlled substance).

4 Before the State had filed the Notice of Seizure and Forfeiture, Mitchell wrote a letter to the trial judge on 20 September 2002 requesting the release of $1,877.00. The letter referred to money seized in two separate arrests - the 2002 arrest5 from which this forfeiture arose as well as another disconnected arrest in 2001.6 The property seized in the earlier arrest had been forfeited by order entered 26 February 2002.

5 The State filed its forfeiture case against the $1,267.00 on 24 September 2002 and served notice on the claimant. Instead of filing a verified answer, the claimant moved for summary judgment. He claimed that summary judgment is appropriate because the State cannot prove by a preponderance of the evidence that the money was either acquired, intended to be used or traceable to a violation of the Act.7 He claims that his burden is to demonstrate there exists no dispute over the currency's illegal use while the State's burden is to present evidentiary material that would furnish at the least inferential support for forfeiture.8 The trial court denied claimant's motion. The State later filed its own motion for summary judgment. The claimant's response to that motion included a counter-motion for summary judgment.

The State's Argument for Summary Adjudication

6 According to the State's motion for summary judgment the undisputed facts of this case strongly establish probable cause that the money in contest was used for an illegal transaction. When the claimant was arrested he had drugs in his possession as well as a large amount of cash, rather than mere drug paraphernalia and drug residue. The State argues that the close proximity of the drugs to the money creates a statutory presumption there was no likely source for the money other than a violation of the Act.9 The State claims that once this presumption has been raised by a preponderance of the evidence, the burden shifts to claimant to demonstrate the money's acquisition was not contrary to the Act. Because claimant did not meet this statutory burden, the State concludes that its quest for summary relief is legally established.

Claimant's Counter-Motion For Summary Relief

7 Mitchell's response with counter-motion for summary judgment notes that the State's forfeiture claim rests on three grounds.10 He argues due process dictates that a claimant should not have to guess what violation of the Act the State relies on to support a statutory forfeiture. Mitchell urges that if the State relies on the first ground, it has the burden to show a nexus between the currency and the Act's violation. According to Mitchell the State has neither pleaded nor proven any violation of the Act to be a source of the money. He urges the trial court to construe the statute in the same manner as was done in State ex rel. Dept. of Public Safety v. 1985 GMC Pickup, Serial No. 1GTBS14EOF2525894, OK Tag No. ZPE852.11 There the court held mere possession of a controlled dangerous substance does not trigger the forfeiture provisions of §2-503(A)(4). He relies on statements in 1985 GMC Pickup that forfeiture is penal in nature and therefore the Eighth Amendment's Excessive Fines Clause applies to any forfeiture under statutes similar to that in controversy here. According to Mitchell, the legislature did not intend that close proximity of currency to controlled dangerous substances would alone be a basis for forfeiture. He argues that to be forfeitable under §2-503(A)(7)12 the money must be in close proximity to controlled dangerous substances which are possessed in connection with manufacturing, importation or distribution of forfeitable substances. Mitchell further argues that the State's reliance on the arresting officer's affidavit that merely recites the money constituted one of many items located or found during a search following a routine traffic stop is insufficient to support an inference of the money's actual use in violation of the law.

8 The State responds that Mitchell's argument confuses the two forfeiture cases claimant insists on intermixing. In the first criminal case, he was convicted of simple possession, but in the second case from which this forfeiture arose, he was arrested for trafficking and convicted of possession with intent to distribute. According to the arresting officer's affidavit the plastic bags that Mitchell dropped while being chased by the officer contained more cocaine than was needed to support a charge of trafficking. The State argues that claimant's continued reference to the first arrest and to the ensuing forfeiture of money ($505.00) is irrelevant and beyond the trial court's cognizance in this, the second, forfeiture.

9 Confining itself to the evidence of the second arrest, the trial court gave summary judgment to the State and overruled Mitchell's quest for like relief. Rejecting Mitchell's efforts at consolidation of both seizures of cash, the trial court ruled the only amount of money at issue before the court is the amount ($1,267.00) seized in the second arrest. Mitchell brought this appeal. The Court of Civil Appeals (COCA) reversed and remanded the cause for further proceedings.

The Court of Civil Appeals' Reversal

10 According to COCA: (a) summary process is inappropriate in a forfeiture proceeding authorized by 63 O.S.2001 §2-50313 and 63 O.S.Supp.2002 §2-506;14 (b) the forfeiture statutes are penal in nature and subject to constitutional standards that govern penal statutes; (c) COCA struck down as unconstitutional the rebuttable presumption that money is forfeitable when found in close proximity to forfeitable substances (§2-503(A)(7)); (d) the State must present a prima facie case without the aid of a presumption to establish the wrong that forms the basis of the forfeiture penalty; (e) claimant's quest for the return of money seized in the first and second arrests operated to commence a single proceeding under 22 O.S.2001 §1321 for the return of the money, and (f) the §1321 claim and the second forfeiture action should have been consolidated and complete relief afforded in both causes.

11 We granted certiorari on the State's petition. The Oklahoma Bureau of Narcotics and Dangerous Drugs Control and the Oklahoma District Attorneys Association appear here by leave of court as amici curiae.

II

THE PARTIES' CERTIORARI ARGUMENTS

12 The State argues that COCA erred in (1) declaring that Mitchell's two separate claims to money seized in the first and second arrests should have been consolidated for adjudication in this single case; (2) declaring forfeiture proceedings to be penal in nature and subject to constitutional standards that govern penal statutes; (3) declaring unconstitutional the §2-503(A)(7) "close proximity" rebuttable presumption; (4) disregarding the State's prima facie case that the seized money was in close proximity to controlled dangerous substances and hence forfeitable (established by the arresting police officer's affidavit and the laboratory reports); and (5) holding that summary process is unavailable in in rem forfeitures of property and (6) changing the caption on appeal to reflect the style appearing on claimant' petition in error, which shows the amount of $1,877.00 pressed by the claimant instead of making the style conform to that which was borne by the case in the trial court.

13 According to Mitchell (a) forfeiture statutes are penal in nature and hence the State has the initial burden to prove the property is forfeitable;15 (b) simple possession of a controlled dangerous substance alone will not support a §2-503 forfeiture;16 (c) the State's position that forfeiture statutes provide for separate civil in rem proceedings with a lesser burden of proof than that borne by the prosecution in criminal cases and thus not penal in nature is inconsistent with extant jurisprudence; (d) federal constitutional jurisprudence is concerned not with whether forfeitures are civil or criminal, but whether forfeiture imposes monetary punishment; (e) the State relies on an unconstitutional statutory presumption to penalize the claimant; and (f) COCA correctly holds that a presumption grounded on proximity that relieves the State from its burden to prove some unlawful use of the money and shifts the burden to a claimant to avoid the penalty of forfeiture offends due process and is hence unconstitutional.

III

THE TRIAL COURT DID NOT ERR IN REFUSING TO CONSOLIDATE FOR TRIAL TWO DISCRETE CLAIMS FOR THE RELEASE OF MONEY ARISING OUT OF SEPARATE AND UNRELATED EVENTS

A.

The Consolidation of Claims For Trial

14 Mitchell's response and his counter-motion for summary judgment seek the release of money seized from him at two separate events - an arrest in 2001 and another in 2002.

15 The consolidation of claims for trial is neither mandatory nor a matter of right.17 Consolidation is a procedural mechanism to enhance the efficiency of judicial process and its economy.18 A trial court has broad discretion in performing its task of orderly processing of litigation to allow (or to refuse) consolidation of proceedings for trial and disposition.19 The terms of 12 O.S.2001 §2018(C)20 provide for consolidation of pending actions that deal with common questions of law or fact. The statute is permissive in nature and does not alter the pre-existing common law that governs the trial court's discretionary power over consolidation requests.21 A nisi prius consolidation decision would not be disturbed absent a clear abuse of discretion.22

16 An order of the trial court is required to accomplish consolidation of separate actions for trial.23 In the orderly processing of this litigation the trial court limited itself here to the case before it. The refusal to consolidate is not shown to have transgressed the trial court's sound discretion.24 There is here absolutely no showing of some predominant equitable consideration that demands a joint trial of the two separate claims to money which arose out of discrete events.

B.

The Reviewability/Appealability of Judicial Consolidation Decisions

17 An aggrieved party may secure review of every preserved prejudicial error committed at nisi prius in the course of proceedings which precede an appealable decision.25 This common-law concept of reviewability is explicitly embodied in the terms of 12 O.S.2001 § 952(a).26

18 Error in the trial court's refusal to adjudicate a claim arising from the earlier arrest has not been shown. This is so because the claim to money seized in the first case has absolutely no connection to the forfeiture now before us on this appeal. Mitchell's request for relief from two seizures of money presents discrete claims arising out of separate occurrences which have no commonality in law or fact. The trial court severed from this (second) forfeiture any claim to money seized and forfeited in the earlier case. We will not reach Mitchell's claim arising out of the earlier disconnected forfeiture. It is not before us.

19 In short, claimant is entitled to no corrective relief from the nisi prius consolidation's denial.

C.

The Correct Style of the Case On Appeal

20 Claimant's summary judgment motion changed the caption of the case to reflect an amount in controversy of $1,877.00. This was done in an apparent unauthorized attempt to combine his claims against seizure in both arrests. He unilaterally accomplished the very same changes in the caption used for his petition in error. The new caption also reversed the sequence of the parties. COCA's opinion adopted the style shown in claimant's petition. We decline to follow the claimant's unauthorized alterations.

21 The terms of 20 O.S.2001 § 300227 require that the style of all cases in an appellate tribunal be parallel to that borne by the case in the trial court.28 According to the terms of Rule 1.25(b),29 the judgment or order on appeal must bear the same "style and sequence of the parties" as that used in the trial court.30 The forfeiture judgment sought here is for $1,267.00, the amount actually seized in the second arrest and shown in the caption of the nisi prius forfeiture judgment. We have accordingly corrected the style of the case and the sequence of the parties in the caption on appeal to conform to statute, the rules of this court, and extant jurisprudence.31

IV

THE STANDARD OF REVIEW FOR APPEALABLE PRODUCTS OF SUMMARY PROCESS

22 COCA condemned the trial court's use of summary process sua sponte. It held that process unauthorized for use in a forfeiture proceeding authorized by 63 O.S.2001 §2-503 and 63 O.S.Supp.2002 §2-506. Neither party at nisi prius (a) made a demand for jury trial or (b) challenged the use of summary process as constitutionally infirm. On the contrary, both parties initiated separate quests for summary disposition and claimant responded to the State's quest with his own request, by a counter-motion, for summary relief.

23 Neither constitutional nor statutory law condemns the use of summary process in forfeiture proceedings.32 That process is unavailable for juvenile,33 parental termination,34 judgment vacation35 as well as for small claims proceedings.36 Inasmuch as there is no statutory or jurisprudential prohibition against the use of summary process in forfeiture cases and neither party launched a legal attack upon that procedure at nisi prius, we do not reach for discussion the COCA-spawned summary-process condemnation. The question before us is whether this forfeiture was effected upon procedure that is conformable to or violates due process. Due process is dependent here alone on the sufficiency of the proof offered by the movant.37 We hence review the record solely to determine whether it is sufficient to support a judgment by summary process.

24 Summary process - a special pretrial procedural track pursued with the aid of acceptable probative substitutes38 - is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process.39 Summary relief is permissible where neither the material facts nor any inferences that may be drawn from uncontested facts are in dispute, and the law favors the movant's claim or liability-defeating defense.40 Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nisi prius resort to summary process for a claim's adjudication.41

25 Summary relief issues stand before us for de novo review.42 All facts and inferences must be viewed in the light most favorable to the non-movant.43 Just as nisi prius courts are called upon to do, so also appellate tribunals bear an affirmative duty to test for its legal sufficiency all evidentiary material received in summary process to support the relief sought by the movant.44 Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary relief in its favor.45

V

THE STATE'S EVIDENTIARY MATERIAL IS SUFFICIENT TO ESTABLISH PRIMA FACIE PROOF OF THE REQUISITE STATUTORY CONNECTION OF THE SEIZED MONEY TO THE FORFEITABLE SUBSTANCES

26 The State's claim to seized money rests on the statutory presumption that subjects to forfeiture "[a]ll moneys, coin and currency found in close proximity to any amount of forfeitable substances."46 The proof to be offered must be by a preponderance of the evidence.47 Once this onus is met the burden shifts to the claimant to rebut the statutory presumption.48

27 The State's evidentiary material - the police officer's affidavit and the police department's laboratory analysis of the seized substances - establishes prima facie the requisite statutory connection that provides support for forfeiture. The baggies that were retrieved from Mitchell, as well as the bag which he dropped during the police chase, contained 31.85 grams of crack cocaine (base), more than six times the amount needed to support a trafficking charge.49 The quantum of the seized forfeitable substances found in close proximity to the money ($1,267.00) was amply sufficient proof to shift to Mitchell the burden to show by counter-affidavit circumstances sufficient to raise a disputed issue of fact. Mitchell accepted as true all the facts proffered by the State's affidavit when he chose not to counter that affidavit's allegations by evidentiary material of his own.50

28 On this record, we hence hold the trial court correctly entered summary judgment for the State.

VI

MITCHELL'S EIGHTH AMENDMENT ARGUMENT

29 Mitchell argued at nisi prius that the statutory phrase "found in close proximity to forfeitable substances"51 must be construed in a way that takes into account the entire statute and avoids an application that would violate the Eighth Amendment's Excessive Fines Clause.52 He argues here that the State's reliance upon a police officer's affidavit which merely recites that money was one of many items found during a search following a routine traffic stop is an insufficient evidentiary basis for an inference of the money's actual use in violation of the Uniform Controlled Dangerous Substances Act.53

30 Claimant's argument is unavailing. This is so because at nisi prius he failed to show by counter-affidavit either that the value of forfeited currency was utterly out of proportion to the criminal act's gravity or that the forfeited currency bore no nexus to the Act's violation.54 The State's evidentiary materials are clearly sufficient to shift the burden of proof to the claimant and to cast on the latter the burden to dispute by his own affidavit the evidentiary materials to be pressed in opposition to the State's forfeiture claim.

VII

SUMMARY

31 The trial court did not err in limiting the issues to the forfeiture case laid before it. It was under no duty to adjudicate in this proceeding two discrete claims arising out of entirely separate money seizure events. The trial judge correctly refused to consider Mitchell's request for relief from the earlier forfeiture when the court was called upon to decide the rights flowing from the second forfeiture.

32 The caption of an appeal must follow the very same style and sequence of the parties as that which was used in the trial court's judgment or order from which the appeal was taken.

33 The State's evidentiary material admitted in summary process establishes prima facie the requisite connection borne by the forfeited money to the forfeitable substances. Claimant failed to counter the State affidavit's allegation by contradicting evidentiary material of his own.

34 On certiorari previously granted upon the State's petition, the Court of Civil Appeals' opinion is vacated and the trial court's judgment is affirmed.

Outcome: ¶34 On certiorari previously granted upon the State's petition, the Court of Civil Appeals' opinion is vacated and the trial court's judgment is affirmed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None