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| Double Jeopardy/21 O.S. 11 |
(OCDW 10.27.08) Although there were no published opinions or other cases of note last week, Robert L. Wyatt, IV, OKC, won a case a few weeks ago on the Court's accelerated docket by a vote of 4-0 involving a very interesting double jeopardy issue.
If any of you are not familiar with the workings of the accelerated docket, it is much different than the regular appeals docket. In regular appeals, the issues are briefed and then the Court issues a written opinion several months later. In the accelerated docket, the cases are briefed, but then argued orally before the Court, after which the judges convene in chambers for a few minutes and then come out and tell you the decision right then at the hearing. A written opinion usually follows. Bob informed me that he has not received a written opinion yet, but will forward it when he gets it.
His issue is very instructive. A sailor in the U.S. Navy was stationed at Tinker AFB, charged with rape, and tried in a military court martial and ACQUITTED. A year or so later, the Cleveland County district attorney's office filed charges in state court stemming from the same allegations. Bob objected on the basis of double jeopardy.
Ah, you say, everyone knows that the dual sovereignty doctrine allows such prosecutions and thus the State can proceed. But, everyone would be wrong. The dual sovereignty doctrine does, of course, allow prosecutions by different sovereigns as an exception to the constitutional bar to double jeopardy, and Bob conceded that point. Undeterred, he delved into the Oklahoma statutes, rather than the constitutions, and found that Oklahoma has apparently provided more protection under these circumstances than the constitutional minimums, and the district courts in Cleveland County and ultimately the Court of Criminal Appeals agreed(!) If you ever one of these cases, look at these statutes and argue the point, particularly 22 O.S. 130:
22 O.S. 14: No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and duly convicted or acquitted, except as hereinafter provided for new trials.
22 O.S. 130: When an act charged as a public offense is within the jurisdiction of another territory, county or state, as well as this state, a conviction or acquittal thereof in the former is a bar to a prosecution therefor in this state.
22 O.S. 522: When the defendant shall have been convicted or acquitted upon an indictment or information, the conviction or acquittal is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same, or for an offense necessarily included therein, of which he might have been convicted under that indictment or information.
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Dean v. Bass,
No. PR-99-1326 (Okl.Cr., January 14, 2000) (Unpublished) is an opinion with which many of you may be unfamiliar, but one that I think everyone who practices criminal defense should read and study. There are many lessons to be learned from the way Garvin Isaacs (Oklahoma City) and Opio Toure handle this case and achieve the ultimate resolution--complete dismissal with prejudice of three counts of Murder in the First Degree with a policeman as an eyewitness to the crimes(!!)
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Aimes v. State,
No. F-2004-701 (Okl.Cr., February 9, 2005) (Unpublished): Possession of CDS case, AFCF, jury gave Aimes fifteen years. No relief, but notable for quirky legal issue and dissent by Chapel, J. One of the twelve jurors had to be excused during the trial. Aimes wanted to continue with eleven. State objected. Judge Elliott, Oklahoma County, interpreted Art. II, § 19 of the Oklahoma Constitution as requiring the consent of both parties to proceed with less than twelve and granted a mistrial. On re-trial, Aimes was convicted. COCA held that the double jeopardy issue was waived because it should have been brought via extraordinary writ prior to the second trial. Judge Chapel criticized the decision because the court has been inconsistent in requiring writs in these situations and in deciding these issues on the merits when writs are pursued. Tough break for Aimes.
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Smith v. Massachusetts,
No. 03-8661 (U.S., February 22, 2005): Winner!!! Defendant on trial for several charges, including possession of a firearm. At the conclusion of the State's case, the trial judge granted Defendant's motion for finding of not-guilty on this charge. The trial continued on the other charges and the judge subsequently reversed her previous "acquittal" and submitted the possession charge to the jury after the State presented her with case law. Supreme Court held this violated double jeopardy because jeopardy attached and the court's ruling was an "acquittal" for double jeopardy purposes and she could not reconsider her decision absent some established procedural mechanism for doing so. It is nice to see a winner out of the Supreme Court, but I honestly can not fathom why the Court granted cert. in this case. The holding appears limited to the unusual facts of the case with no broader application at all to double jeopardy cases; and does not advance the law in this area one iota in my opinion. Have any of you ever heard of a trial judge granting a demurrer and then reversing the grant later in the trial? How often can this situation arise in the thousands of cases tried across the country each year? Inexplicable
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Gale v. State,
No. F-2003-1297 (Okl.Cr., March 1, 2005) (Unpublished): Convictions affirmed on multiple drug counts, but one count of Possession of Precursor w/o Permit reversed under 21 O.S. 11. Gale convicted of separate counts of Possession of Red Phosphorus and Ephedrine w/out Permit, respectively. Court held that the statutory scheme of 63 O.S. 2-322 & 328 does not distinguish between types of precursors and prohibits possession of the listed precursors individually and in combination--so no double punishment allowed for the single act of possessing them both. Frankly, I can not get a handle on the actual legal standard that the court uses in 21 O.S. 11 "double punishment" cases. Seems very "squishy" when I read the cases.
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Brown v. State:
No. MA-2001-117 (Okl.Cr., July 3, 2001) (Unpublished): Extraordinary Writ case where COCA held that death penalty cannot imposed when defendant had been previously sentenced to LWOP, even though case reversed and remanded for new trial; defendant had been acquitted of the death penalty.
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United States v. Lara,
No. 03-107 (U.S., April 19, 2004): No double jeopardy violation when sovereign Indian tribe prosecuted accused and then federal government prosecuted for same act.
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Payne v. State,
No. F-2004-368 (Okl.Cr., June 10, 2005) (Unpublished): Payne charged with 101 counts (!) of sex crimes against his daughter. The jury acquitted him on 97 counts, but convicted on 4. On appeal, Payne wins on one of these counts when the Court found plain error (!) in punishing Payne for lewd molestation which is a lesser-included offense of rape in violation of double jeopardy and section 11.
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State v. Phares,
No. S-2004-1009 (Okl.Cr., July 7, 2005) (Unpublished): Double jeopardy winner in an appeal by the State!!! This is a potentially powerful case that should be published. Phares was involved in a two-vehicle collision in which the other driver died at the scene. Phares was ticketed for failure to stop at a stop sign and he promptly entered a nolo plea and paid a fine and costs (the ticket was filed in the county courthouse, not the city). The State thereafter filed a charge of Negligent Homicide stemming from the same accident and fatality. The Special Judge dismissed on double jeopardy/sec. 11, the State appealed, and COCA affirmed (with a lengthy dissent by Lumpkin). This case would appear to have far-reaching consequences in similar situations, particularly in the context of DUI when, for example, the driver is ticketed for no seat belt or TOC.
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Walck v. Edmondson,
No. CIV-05-430 (W.D. Okla., August 10, 2005): Winner on a most improbable ground: double jeopardy! The federal District Court has enjoined a state court prosecution on double jeopardy grounds. During the state jury trial on a vehicular manslaughter charge a State witness became unavailable and the trial court declared a mis-trial over defense objection. Steve Presson, counsel for Walck in the federal court, indicated that Walck took a writ to COCA which was denied; so Walck went onward and upward. Judge David Russell adopted the report of the magistrate and issued the order directing the State to dismiss with prejudice and enjoining further state court prosecution(!). Generally, the federal courts abstain from meddling in state court criminal proceedings; but double jeopardy is one of the few grounds that will attract the attention of a federal court to issue an injunction. I am litigating a similar issue right now on a claim of statute of limitations expiration, but lost in COCA (3-2) and in the federal district court, so it is on appeal in the circuit. NOTE--PROCEDURAL TRAP: There is an unpublished opinion from COCA that holds the double jeopardy issue must be pursued via writ before the start of the allegedly barred trial or you waive the issue. So, if you have a trial that you think is barred by double jeopardy, you must not only file your motion before the trial court, but must also seek a writ in the Court of Criminal Appeals. From there you can then proceed to federal court if your client can afford it.
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Mack v. State,
2008 OK CR 23 (July 11, 2008): Double Jeopardy/21 O.S. 11: Mack was tried and found guilty of two Murder counts and sentenced to LWOP in state court. He was also part of a large drug conspiracy that spanned several states and he was charged in federal court as well. His federal sentence was enhanced to life partly because of the two murders that formed the basis of the state convictions. In this appeal, Mack argued this double punishment for the same acts constituted double jeopardy and that the dual sovereignty doctrine did not apply. However, the appellate court was not swayed and AFFIRMED over his double jeopardy claim, and also over his pro se claims involving gruesome photographs and prosecutorial misconduct.
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Romero v. State,
No. F-2004-268 (Okl.Cr., August 29, 2005): Romero was convicted of three inter-related drug counts: 1) conspiracy to traffick in meth; 2) trafficking in meth; and 3) using a minor to distribute meth. The Court held that the single transaction giving rise to the trafficking count and the using a minor to distribute count violated 21 O.S. 11. The Court reversed count II with instructions to dismiss.
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Smith v. State,
No. RE-2004-1143 (Okl.Cr., November 14, 2005) (Unpublished): Smith engaged in "dishonesty" to the trial court while in the Drug Court program (it had something to do with his employment and failure to complete community service, but the opinion is not that clear). The trial court revoked Smith from Drug Court participation on this basis. However, the record revealed that Smith had been "sanctioned" in some way for these infractions and COCA held that once a sanction is imposed for a probation violation in a Drug Court case, the State may no longer use that particular violation as the basis for a subsequent application for sanctions or to terminate a defendant's participation in Drug Court (citing Robinson v. State, 1991 OK CR 44). Nice turn of events for Smith.
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Jones v. State,
2006 OK CR 5 (January 27, 2006): Death penalty direct appeal with convictions and sentences affirmed over an assortment of claims. No relief here, but decent discussions of double jeopardy vs. section 11 (noting the differences in the analysis), Brady issues, and FBI testimony regarding the bullet lead composition analysis.
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Charles Clarence Tiger v. State,
No. F-2004-1127 (Okl.Cr., March 6, 2006) (unpublished): Tiger was convicted of 14 counts of miscellaneous criminality in Oklahoma County and sentenced to beau-coup years in the clink. The Court reversed two of the counts: Burglary in the Second Degree and Robbery w/Firearm. Concerning the Burglary, the Court reversed because convictions for both the Burglary and Robbery w/Firearm violated 21 O.S. Sec. 11 (double punishment). Concerning the Conspiracy to Commit Burglary in the Second Degree, the Court reversed on the basis of insufficient evidence.
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Anthony Jerome Johnson v. State,
No. F-2004-1226 (Okl.Cr., May 1, 2006) (unpublished): Section 11-double punishment. Johnson was tried by jury on several counts and convicted of Eluding an Officer, Obstructing an Officer, and Robbery with a Firearm. The convictions arose out of a carjacking incident in which Johnson jacked a car, drove off at a high rate of speed, wrecked the car he jacked, and then took off on foot before he was apprehended. HELD: convictions for Eluding and Obstructing violate 21 O.S. 11. The State argued that the Eluding was for the car chase and the Obstruction was for the foot chase and thus they were separate incidents. The Court characterized Johnson's behavior as a continuous attempt to flee and thus one act for section 11 purposes. The Court also engaged in a decent discussion of this topic for an unpublished opinion. The relief for Johnson was that the misdemeanor Obstructing county was reversed with instructions to dismiss. NOTE: I like the language in the case in the discussion of the reach of 21 O.S. 11. Judge Lumpkin, in his dissent on this holding, seems alarmed that the majority appeared to resurrect some of the expansive language of prior cases. That's a good thing.
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Bryan Matthew Carroll v. State,
No. F-2004-1182 (Okl.Cr., May 18, 2006) (unpublished): 21 O.S. section 11 (double punishment) and Sufficiency of the Evidence: Carroll was convicted by a jury of several counts including A&B w/Dangerous Weapon, Attempting to Elude, Possession of Paraphernalia, and Driving w/Revoked License, Speeding, and Failure to Stop at a Stop sign. He was sentenced to a year or less on all these, but Judge Joe Sam Vassar ordered them to run consecutively. A trooper noticed Carroll driving 97 mph in a 65 mph zone and tried to stop him. The twenty minute chase was captured on video and Carroll ran through several stop signs during the chase. The trooper eventually used the patrol car to "spin-out" Carroll's car whereupon the hapless Carroll proceeded to escape on foot and was apprehended in short order. HELD: 1) the count of failure to stop at a stop sign is dismissed because the charge of failure to stop at a stop sign was part of the act of eluding; 2) A&B w/Dangerous Weapon is reversed on the basis of insufficient evidence (apparently the State's theory was that Carroll used his car to ram the trooper's car) because the tape showed no intent by Carroll to do bodily harm; 3) the Possession of Paraphernalia is reversed on the basis of insufficient evidence because the State failed to prove that the glass pipe was used or intended to be used for the ingestion of CDS or that the pipe was designed specifically for use in ingesting illegal drugs, the Court stated, "We find that the mere possession of this glass device with only the trooper's opinion that it could be used for smoking marijuana or cocaine is insufficient under the drug paraphernalia statute, definitions and factors found in Title 63 (63 O.S. 2-101(32), 2-101.1, and 2-405).
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Ryan Anthony Van Winkle v. State,
No. F-2005-620 (Okl.Cr., September 22, 2006) (unpublished): Double Jeopardy/21 O.S. 11: Van Winkle was convicted of two counts: Assault with a Dangerous Weapon and Forcible Oral Sodomy. The Hon. Rebecca Brett Nightengale in Tulsa sentenced him to pursuant to the jury's recommendation of five years and eight years, respectively and consecutively. Van Winkle put a box knife to the victim's throat and threatened her if she did not perform oral sex on him. She did so. Van Winkle argued that since the assault was the same act that made the sodomy forcible, the two counts merged and he cannot be punished for both under 21 O.S. 11. The Court agreed and distinguished this case from other cases in which one crime is completed before another one begins. The relief provided for this error was to reverse with instructions to dismiss the Assault conviction.
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Anthony Logan Merrick v. State,
No. F-2005-569 (Okl.Cr., October 19, 2006) (unpublished): Child Porn; Double Jeopardy/21 O.S. 11: Merrick was convicted in Oklahoma County at a bench trial (Hon. Susan P. Caswell) of beau-coup counts ranging from Sexual Abuse of a Child, Sexual Exploitation of a Child, First Degree Rape by Instrumentation, and Indecent or Lewd Acts---a whopping 51 counts in all for which he received essentially two consecutive life sentences. Merrick gets some relief by arguing that a "single cache" of pornography can support only one count of possession of child pornography under 21 O.S. 1021.2 and 1024.1. In this case, the State introduced evidence of a videotape that contained several images and a CD-ROM that contained several images. The State apparently printed out thirteen images from these sources and charged them as discrete counts. The Court held this was impermissible under the statute because a digital/magnetic storage device is a distinct item.
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Lewis v. State,
2006 OK CR 48: Double Jeopardy/21 O.S. 11: Lewis was busted at an OKC bus termnal with a travel bag containing two kilograms of cocaine and 25 grams of heroin. He was convicted of two trafficking counts, one for the cocaine and one for the heroin and sentenced to 25 years and 15 years, respectively, to be served consecutively. Lewis argued that convictions for both violated the Oklahoma statute against multiple punishments. The Court described this issue as one of first impression and held that the one act of possessing cocaine and heroin in a single container constituted one violation of the drug trafficking statute. Count II was reversed. Judge: C. Virgil Black (Oklahoma County).
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Jimmy Douglas Letterman v. State,
No. F-2005-987 (Okl.Cr., December 4, 2006) (unpublished): Double Jeopardy/21 O.S. 11: Convictions of Possession of Meth and Possession of Marijuana violate double punishment provisions, even though the drugs were found in separate caches.
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Walck v. Edmondson,
No. 05-6273 (10th Cir., January 4, 2007) (Published): Double Jeopardy: This is a very nice opinion affirming the habeas grant by Judge Russell out of the Western District where he enjoined the State from further prosecution of Walck on double jeopardy grounds. The trial had started, two witnesses were sworn and gave testimony, then the key witness, who was then eight months pregnant, went into labor. The State moved for a mis-trial and the defense objected. This opinion provides a very good blueprint and discussion of federal court intervention into pending state criminal prosecutions.
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Brumfield v. State,
2007 OK CR 10 (March 20, 2007): Manufacturing; Double Jeopardy/21 O.S. 11; State Constitutions: Brumfield was tried by jury and convicted of Aggravated Manufacturing (Meth) and Unlawful Possession of CDS (Meth) in Pushmataha County. He was sentenced to 20 and 2 years, respectively. This case was apparently published because of the "vagueness" argument raised by Brumfield in which he argued that the word "mixture" in the Aggravated Manufacturing statute rendered the statute void for vagueness. This argument is rejected. The testimony at trial was that there was a jar found in the home that contained a two-layer liquid that did not mix: one layer on top described by OSBI criminalist Marty Wilson as an aqueous layer; and a second layer on bottom described as an organic/oil layer that contained the meth. HELD: 1) the weight of ALL THE LIQUID IN THE JAR COUNTS TOWARD THE WEIGHT CALCULATION THAT TRIGGERS THE AGGRAVATED PART OF THE MANUFACTURING STATUTE; and 2) the conviction of Possession of CDS (the liquid used in the manufacturing) violated section 11 and Count II was reversed and remanded with instructions to dismiss (the State conceded this claim). NOTE: Other issues were raised in the case but none were properly preserved. Particularly odd in the opinion is an extensive discussion of the knock-and-announce rule and whether the exclusionary rule applies under STATE LAW in light of Hudson v. Michigan. The opinion engaged in a lengthy discussion of the issue, noting the Oklahoma Supreme Court's decision in Turner v. City of Lawton, and just when you get to the part where the Court is supposed to hold that Oklahoma law provides greater protection than the Fourth Amendment, the Court decides that since trial counsel did not object to the search AT TRIAL (even though the issue was contested vigorously in pre-trial motions), the issue is waived and the Court does not reach it. Judge Lumpkin, in a concurring in part/dissenting in part opinion, noted the "eight pages of dicta" on this issue and stated rather pithily that the dicta "is as pertinent to our appellate jurisdiction as my own thoughts on, say, pop culture." I must say that I agree with him. I can see no reason for the Court to engage in such an in-depth discussion of the issue and then just summarily reject it on waiver grounds(???). However, the discussion on the knock-and-announce issue does provide a BLUE PRINT for others to attack such searches on state law grounds and for the love of Pete, ALWAYS REMEMBER THAT YOU MUST OBJECT AT TRIAL TO SEARCH ISSUES EVEN IF YOU LITIGATED THEM IN PRE-TRIAL MOTIONS.
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Marlin Virgil Brown v. State,
No. F-2006-113 (Okl.Cr., March 28, 2007) (unpublished): Double Jeopardy/21 O.S. 11: Brown gets spanked hard in this case, receiving LWOP after being convicted of trafficking, but the case is instructive because, in addition to the crack cocaine he had, there were also 25 Ecstasy pills in the same baggie. HELD: the convictions for trafficking the cocaine and also possession of the Ecstasy pills with intent to distribute constituted a single act and the State was precluded from punishing him twice; thus, the Ecstasy count is reversed with instructions to dismiss.
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United States v. Ohayon,
No. 05-17045 (11th Cir., April 12, 2007): Double Jeopardy/21 O.S. 11: This is an interesting collateral estoppel case. Ohayon was arrested when he transported bags of drugs from a hotel room occupied by a confidential informant and placed the bag in the trunk of a car. He was charged with Attempt to Possess with Intent to Distribute MDMA (Ecstasy) and Conspiracy to Possess with Intent to Distribute MDMA. His defense at trial was that he was unaware of the contents of the bags. The jury acquitted him of the Attempt count but hung up on the Conspiracy count. Prior to his re-trial on the Conspiracy, Ohayon moved to dismiss this charge because the acquittal on the Attempt collaterally estopped the Government from re-trying him on the Conspiracy charge. The District Court agreed and the circuit AFFIRMED. This is a thorny legal issue and the circuits are split.
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Brazzel v. Washington,
No. 05-36145 (9th Cir., April 12, 2007): Double Jeopardy/21 O.S. 11: Brazzel was charged with Attempted Murder but was convicted by the jury of the lesser offense of First Degree Assault. The State of Washington re-tried him, again alleging Attempted Murder, and again the jury convicted him of the lesser offense of First Degree Assault. HELD: the second trial was barred by double jeopardy since the conviction on the lesser charge was an "implied acquittal" to the greater charge.
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Lacy v. State,
2007 OK CR 20 (May 23, 2007): 1. Jury Instructions; Defense Requested Instructions; 2. Double Jeopardy/21 O.S. sec. 11: Lacy was convicted by a jury in Payne County before the Hon. Donald Worthington of: I) Procuring Child Pornography; II) Distributing Child Pornography; and III & IV) Contributing to the Delinquency of a Minor. The Court held that the convictions on counts II & III violated the prohibition against double punishment for a single act and therefore Count III is reversed with instructions to dismiss. The State had plead specifically, and the evidence showed, that Lacy asked his 14-year-old daughter to distribute fliers with the victim's photograph at a high school. The Court also granted sentencing relief for a violation of the 85% Rule jury instruction. Lacy's convictions were after former conviction of a felony. The State argued that since he was sentenced under the general enhancement statute no 85% instruction was required. There was some support for such a position in Coates v. State, 2006 OK CR 24, 137 P.3d 682. However, the Court clarified that Coates did not involve an 85% Rule crime at all (therefore no instructional error) and the dicta in Coates that would support the State's position is clarified in favor of a simple rule: "Juries should be instructed on the 85% Rule in every case in which it applies, including cases where a defendant's sentence is enhanced under section 51.1."
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Bobby M. Ellis v. State,
No. F-2006-826 (Okl.Cr., October 12, 2007) (unpublished): Double Jeopardy/21 O.S. 11: Ellis was convicted of various sex crimes involving his two young step-daughters and zapped with time totaling 210 years (all counts running consecutively). For the criminal defense bar, there are two aspects of this case worth noting. First, Ellis apparently made one videotape of the sexual abuse, depicting both victims. The State charged him with two counts of Preparing Child Pornography. The Court reversed one of these counts, holding that the single videotape supported only one count and thus the other count was prohibited by Double Jeopardy. This had the effect of knocking a whopping ten years off the 210 year sentence. Second, Ellis claimed that his sentence was excessive. The Court denied this claim, noting that Ellis showed no remorse for his crimes and in fact "blamed the child victims for seducing him." Note to the defense bar: The defense of "I was seduced by the child I molested" probably will not fly either at trial or on appeal.
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Jeffrey Airehart v. State,
No. F-2006-850 (Okl.Cr., October 19, 2007) (unpublished): Double Jeopardy/21 O.S. 11: Airehart was terminated from Drug Court by Judge Charles L. Goodwin in Beckham County. The facts showed that Airehart tested positive for drug use on two occasions but was sanctioned. The Court held that the State may not sanction and terminate for the same violation. Termination order reversed.
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Manh Micahel Mach v. State,
No. F-2006-538 (Okl.Cr., November 15, 2007) (unpublished): Double Jeopardy/21 O.S. 11: Mach was tried at a bench trial in Tulsa County before the Hon. P. Thomas Thornbrugh and found guilty of six drug counts. Three of the counts involved Possession with Intent to Distribute Cocaine, Methamphetamine, and Marijuana, respectively. The Court held that convictions for these three crimes violated the constitutional prohibition against multiple punishments for the same offense. The Court stated that 63 O.S. sec. 2-401(A) prohibits possession of these drugs without regard to the number or type of drug involved; thus, there was only one violation of this statute. The remedy is that counts 2 and 3 are reversed with instructions to dismiss.
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United States v. Zalapa,
No. 06-50487 (9th Cir., December 5, 2007): Double Jeopardy/21 O.S. 11: The panel holds that a defendant who fails to object in the district court to multiplicitous convictions and sentences does not waive his or her right to raise a double jeopardy challenge on appeal; and in this case the district court erred plainly by sentencing Zalapa on mutiplicitous firearm counts.
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Brown v. State,
2008 OK CR 3 (January 23, 2008): Double Jeopardy/21 O.S. 11: Brown was tried in Oklahoma County in front of now-dethroned judge Susan Caswell on 100 counts of Possession of Obscene Material involving a child under 18. The jury sentenced him to only six months on each count, but her honor thought it was just that each count should be served consecutively. As with almost all of these cases, the child porn was found scattered on various media, including a computer hard drive and several CD-ROM discs. The State argued that the 100 counts were supported by the existence of 88 images and 12 video clips regardless of the number of media storage units on which they were collected. The Court had previously ruled in an unpublished opinion (Merrick v. State, No. F-2005-569) that the statute is worded in such a way that the storage media of the images is the prosecutable unit that applies in these cases. The Court affirmed the rule of Merrick in this case case and this time is was published. In Brown's case, the State presented evidence of only nine storage media (the hard drive and 8 CDs); thus, the Court REVERSED counts 10-100 as being in violation of 21 O.S. 11. NOTE: Trial counsel did not raise this issue below but the Court still granted relief.
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United States v. Davenport
No. 06-30596 (9th Cir., March 20, 2008): 1. Child Porn; 2. Double Jeopardy/21 O.S. 11: Convictions for both Receipt of Child Pornography and Possession of Child Pornography, based upon the same acts, violate double jeopardy because Possession is a lesser-included offense of Receipt.
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