Brown v. State

LUMPKIN, J.,

concurs in results.

¶ 1 I concur in the result reached in this case. I do not agree with portions of the rationale, however, and therefore I write separately to address those points of disagreement.

¶ 2 First, Appellant in this case was a party to the Petitions for Extraordinary Relief set out in Footnote 2 of the Court’s opinion. The issues raised have been judicially determined. Within the context of criminal procedure that judgement is res ju-dicata and Appellant is procedurally barred from raising the issue a second time. The opinion confuses collateral estoppel with the doctrine of res judicata, i.e. claim preclusion. Rather than use that approach, we should simply state the claim is procedurally barred by res judicata.

¶ 3 Second, while I am of the opinion Oklahoma .law does not prevent the trial court, in the exercise of its discretion, from impaneling dual juries, I remain skeptical regarding the value of this procedure, especially in capital cases. Although I do not find reversible error occurred in the instant case, some of the issues raised by Appellant are illustrative of future problems we will likely encounter when dual juries are impaneled. Rather than broadly endorsing the dual jury procedure, as did the majority in. Cohee v. State, 942 P.2d 211, 213 (Okl.Cr.1997) (Lump-kin, J. Concurring in part, dissenting in part), I will continue to monitor its impact on the trial on a case-by-ease basis.