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Elton v. State
, No. F-2003-1335 (Okl.Cr., March 2, 2005) (Unpublished): Elton slammed by jury on a Robbery w/Dangerous and A & B w/Dangerous for 50 and 10 years, respectively and consecutively, at 85%. Affirmed, but notable because court held no error in refusing Elton's requested instruction informing the jury that he would have to serve 85% of his sentence before becoming eligible for parole. I think this is a huge problem in that jurors do in fact take into account parole eligibility and overcompensate with longer sentences. Grossly unfair. I wonder if the court would find error if the jury sent a note specifically asking about parole or if the new members of the court would reach the same conclusion. I think it will take a jury note to reach a different result. If you have an 85% case, it might be a good idea to try and get juror views on this during voir dire. In a capital case I am working on, one juror was talking about her prior jury service and stated that the jury gave the guy seven years and a few months later she saw him at the county fair eating a snow cone(!) If you can get a juror to express some concern about this issue, you may be able to show some prejudice or some real need for the instruction.
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Satterlee v. State,
No. F-2004-16 (April 29, 2005) (Unpublished): Multiple rape and sodomy convictions affirmed, but case notable for three reasons. First, the Court stated that a trial court may instruct the jury pursuant to the specific provisions of 21 O.S. 13.1 that the defendant must serve at least 85 per cent of his sentence before becoming eligible for parole(!) Note that the Court decided recently in March of this year in the Elton case that it is not error for a trial court to refuse such an instruction; but here is good language from the Court stating that giving such an instruction is not error. Second, the dissent from Judge Chapel is particularly powerful. It involves the introduction at trial of a particularly graphic and nasty home-made porn tape depicting Satterlee and his wife. The problem is that Satterlee was accused of crimes against his son, not his wife, and the sex tape is just an hour long depiction of consensual sex acts with his wife (no crimes). The tape evidence sounds incredibly prejudicial and only marginally probative, if at all. Third, new-Judge Johnson concurs in the opinion by Lumpkin. Chapel makes a compelling case in dissent but was apparently unable to persuade her to join in.
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United States v. Visinaiz,
No. 04-4277 (10th Cir., November 16, 2005) (Published): Conviction of second degree murder in Indian country affirmed over a slew of claims in a lengthy opinion. Notable because the opinion re-affirms the rule that a criminal defendant is entitled to jury instructions on his theory of the case if it is grounded in fact and law and failure to do so is reversible error (but not in this case).
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Trammell v. State,
No. F-2004-1112 (Okl.Cr., December 16, 2005) (unpublished): Murder I winner on the grounds that the trial court erred in refusing to instruct on self-defense. The Court noted that Trammell himself testified at trial that he was attacked, then pursued by at least two if not three men, who had and were attempting to continue to assault him; and that this testimony was sufficient to allow the jury to determine if the deadly force was justified.
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United States v. Herron,
No. 04-1232 (10th Cir., December 20, 2005) (Published): Felon in possession of a firearm case that went to jury trial and is affirmed over a variety of claims. Most noteworthy in this case is that Herron requested and was granted a jury instruction (which is set forth in the opinion) on the defense of innocent possession of the firearm which is basically that Herron handled the gun with no illegal intent and got rid of it as quickly as possible. The jury did not buy it under the facts of the case, but note that this defense exists.
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Anderson v. State,
2006 OK CR 6 (Okl.Cr., February 22, 2006): JURIES MUST BE INSTRUCTED ON 85%!!! Anderson was convicted of Murder in the First Degree and sentenced to LWOP. The jury sent a note inquiring how much time he would actually serve if given straight life. The trial court sent the standard ambiguous response (you have all the law needed to decide the case) even though Anderson objected and proffered an 85% instruction. The Court reevaluated its decisions in this context and held that Oklahoma juries must now be instructed on the 85% Rule in cases to which the rule applies(!!) The decision is prospective only and the Court held that the failure to give such an instruction is not reversible in other cases (but it is unclear whether the decision applies to cases on direct appeal). This is one of the most progressive decisions I have seen out of the Court in many years. NOTE: In this case, the question was how the 85% affects a straight life sentence. Since DOC considers, as a matter of administrative interpretation, a "life" sentence to be 45 years, the 85% Rule mandates that a person must serve 85% of 45 years. Note also that the relief in this case was remand for re-sentencing, not for a new trial. Finally, the Court discussed a Brady claim that is very helpful in addition to the 85% holding. The defense theory of the case was that the deceased had a quarrel with drug dealers who may have killed him. The State's star witness was a drug dealer but the prosecutors did not divulge that fact to the defense (it came out during the trial). Good discussion of exculpatory evidence but ultimately no relief since the trial court allowed a continuance and access to witnesses to cure it.
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People v. Vasquez,
No. B175639 (Cal. App., February 15, 2006): Nice winner holding that the defendant was entitled to a jury instruction on "imperfect self-defense" in which the accused actually believed that his life was in danger, but that belief was unreasonable.
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United States v. Biggs,
No. 04-50613 (9th Cir., March 31, 2006): Very nice self-defense winner. Biggs was in prison and stabbed another inmate. He claimed that the other inmate threatened him on the way to the recreation cage and Biggs believed the other inmate was trying to procure a knife. In this opinion, the Ninth Circuit splits with the Seventh Circuit and holds that self-defense does not require that a defendant show that no other reasonable alternatives to the use of force existed, only that there be a reasonable belief that the use of force was necessary and the actual use of force was no more than necessary under the circumstances. Terrific case but I always get a little nervous when the Ninth Circuit disagrees with another Circuit (it usually spells doom for the good Ninth Circuit law).
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Felix Finley, IV, v. State,
No. F-2004-682 (Okl.Cr., May 1, 2006) (unpublished): 85% Rule. Finley was convicted by jury of Manslaughter in the First Degree (which was a lesser-included charge) and sentenced to 70 years by Judge Susan S. Caswell in Oklahoma County. The jury sent a note inquiring about pardon and parole which went unanswered by the trial court. HELD: since his appeal was pending when the Court decided Anderson v. State, 2006 OK CR 6, it was error for the jury to not be instructed about the 85% rule. NOTE: the Court "reversed and remanded for re-sentencing." Re-sentencing? The opinion is not clear how this will work. Does this mean re-sentencing by the Court or by a jury? If a jury, how will it work? I suspect a new jury will empaneled for the purpose of deciding sentencing only, but such a procedure seems somehow incomplete.
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Jonathan Dwight Harjo v. State,
No. F-2004-1261 (Okl.Cr., May 16, 2006) (unpublished): 85% Rule. First Degree Rape conviction, AFCF, and sentence of 15 years is modified to 10 years because the trial court refused to instruct the jury that Harjo would have to serve the sentence at 85%.
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Reginald Lamond Brazell v. State,
No. F-2004-767 (Okl.Cr., May 23, 2006) (unpublished): 85% Rule: Brazell was convicted of Robbery in the First Degree (AFCF) and sentenced to 40 years in Oklahoma County. Sentence modified to 30 years on the basis that the jury should have been instructed on the applicability of the 85% rule pursuant to Anderson v. State, 2006 OK CR 6. This is the latest in a series of cases that have been modified on this basis.
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James Joseph Wymer v. State,
No. F-2005-814 (Okl.Cr., May 23, 2006) (unpublished): 85% Rule: This is another case on direct appeal where the Court modified the sentence because the jury was not instructed on the 85% rule. Wymer was convicted of First Degree Burglary (AFCF) and sentenced to 45 years. The Court modified the sentence to 35 years.
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Coates v. State,
2006 OK CR 24 (Okl.Cr., June 9, 2006): Jury Instructions: Defense Requested Instructions: Coates was convicted of Unlawful Distribution of CDS w/in 2,000 feet of a School and sentenced to 10 years. He raised several claims, one of the most interesting was denial of a jury instruction that would have created a mens rea requirement that he knew he was within 2,000 feet of a school. This was denied and the Court held that the 2,000 feet requirement acts as an aggravator to enhance the sentence, rather than an element for which a mens rea requirement must be found by the jury. Something about that holding seems to just water down the State's burden of proof, but the holding is in line with the large majority of other state and federal decisions. Also, the Court found no plain error by the failure to instruct on the 85% rule. This is a very strange holding that distinguishes Anderson v. State, 2006 OK CR 6, on the basis that Anderson involved enhancement under the general statute at 21 O.S. 51.1, while this case involved enhancement under the drug statutes found at 63 O.S. 2-401(F). Very odd distinction, but most likely it turned on the fact that Coates did not request the instruction and thus gets shafted with the plain error standard of review.
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Luke Sinclair v. State,
No. F-2004-146 (Okl.Cr., June 8, 2006) (unpublished): Jury Instructions: Defense Requested Instructions: Sinclair was convicted at jury trial of Murder in the First Degree and sentenced to LWOP. He did not request an 85% instruction at trial, but the Court held that since his appeal was pending when Anderson was decided he will get the benefit of that rule; thus his case is remanded for re-sentencing. This is at least the third unpublished opinion to apply Anderson to cases pending on direct appeal, even cases where the defendant did not request the instruction. This approach by the Court seems completely arbitrary to litigants like Coates in the case above.
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Michael WcWhirt v. State,
No. F-2005-105 (Okl.Cr., June 15, 2006) (unpublished): Jury Instructions; Defense Requested Instructions: McWhirt was found guilty by jury in Tulsa on nine counts ranging from kidnapping to multiple sexual offenses and was sentenced from ten years to life on all counts, all counts running consecutively. In fact, the jury was so impressed with McWhirt's criminal prowess that they sentenced him to the max on all counts. The crimes appear to have been an abduction with rape and other horrible sex crimes resulting. This case was on appeal at the time Anderson (the 85% rule case) was decided and the Court recognized that plain error had occurred in this case. However, the Court stated that under the circumstances of the case, "the instructional error had no substantial influence on the outcome and requires no relief." This is the first post-Anderson case where the Court found plain error but did not grant at least partial sentencing relief.
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Deitric Benard Pierson v. State,
No. F-2004-874 (Okl.Cr., June 21, 2006): Jury Instructions; Defense Requested Instructions: Pierson was convicted of Sexual Abuse of a Child and sentenced to Life. Although he raised several issues, the Court modified his sentence to 30 years because it found plain error under Anderson when the trial court did not instruct on the 85% law. NOTE: the Court has refused to find plain error in several of these cases recently by applying harmless error review; so be aware that just because this error may exist in your case, your client may not get any relief if the facts are very bad and the jury sentenced to the maximum. Frankly, I would have thought that this case would be a candidate for harmless error but the Court has surprised me.
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Carter v. State,
2006 OK CR 42 (Okl.Cr., October 3, 2006): Jury Instructions; Defense Requested Instructions: Carter was only 17-years-old when he committed the murder for which he received LWOP (the opinion does not give any additional facts). In this appeal, the Court affirmed the conviction, but reversed the sentence and remanded for a re-sentencing hearing based upon error in the trial court failing to instruct the jury on the 85% law. The Court clarified that an error of this type is instructional error and thus reversal is not automatic unless there is a showing of a miscarriage of justice or a substantial violation of a constitutional or statutory right. Significantly, the jury in this case sent a note specifically seeking clarification of the parole issue ("Can you clarify life? What is the minimum # of years served before coming up for parole?) and the question was not answered by the trial court, other than the pro forma response of "you have all the law and evidence that is proper for you to consider." Hon. Twyla Mason Gray (Oklahoma County).
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Edgar Allen Moore v. State,
No. F-2005-1031 (Okl.Cr., November 8, 2006) (unpublished): Sufficiency of the Evidence; Jury Instructions: Defense Requested Instructions; Curative Instructions: Moore was convicted by jury in Caddo County of Shooting w/Intent to Kill and KCSP. He was sentenced to 50 and 5 years, respectively, by the Hon. Wyatt Hill. HELD: 1) the KCSP count is reversed for insufficient evidence; and 2) the SWIK count is affirmed but remanded for re-sentencing pursuant to the 85% rule. Good language from the Court on the sufficiency claim. The Court stated that "mere possession of stolen property is not enough; possession must be supplemented with facts inconsistent with honest possession." Error was found also in the prosecutor's repeated statements that Moore did not take any action to give the gun back to the owner (improper comment on Moore's right to remain silent) and the single admonition did not cure the error. Finally, trial counsel requested an 85% instruction when the jury sent a note inquiring about parole eligibility and the trial court refused it. Thus, the principal count is reversed and remanded for re-sentencing.
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Clarence Andre Gatewood v. State,
No. F-2005-829 (Okl.Cr., November 17, 2006) (unpublished): Jury Instructions: Defense Requested Instructions: Gatewood was tried by jury on a charge of First Degree Murder, but convicted of the lesser offense of Second Degree Murder and sentenced to Life. Remanded for re-sentencing based upon lack of an 85% instruction pursuant to Anderson v. State.
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Roy v. State,
2006 OK CR 47 (November 22, 2006): 1) Jury Instructions; Defense Requested Instructions and 2) Prosecutorial Misconduct; Improper Argument: First Degree Murder case out of Tulsa County where the defendant was sentenced to LWOP. The Court affirmed the conviction but reversed the sentence and remanded for re-sentencing on an 85% instruction error. Note: this error was not preserved below but the Court found plain error, notably in the form of a jury question inquiring about guidelines about sentencing and Roy was a young man with no prior record. The Court also found "blatant prosecutorial misconduct" in the way the prosecutor contrasted the victim's character with that of Roy but found insufficient prejudice to reverse.
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Thomas Terrill v. State,
No. F-2005-527 (Okl.Cr., November 9, 2006) (unpublished): 1) Jury Instructions; Defense Requested Instructions and 2) Prosecutorial Misconduct; Improper Argument: Terrill went to trial in Pushmataha County charged with First Degree Murder but was convicted of First Degree Manslaughter and sentenced to life. The Court affirmed the conviction but remanded for re-sentencing on an 85% instruction error and prosecutorial misconduct (evoking sympathy for the victim and closing with "If you take a life, you give a life"). This is another plain error case where the jury sent a note asking about parole eligibility which combined with the prosecutorial misconduct to create the error.
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Doyle Blythe v. State,
No. M-2006-555 (Okl.Cr., April 12, 2007) (unpublished): Jury Instructions; Defense Requested Instructions: Blythe was charged with Feloniously Pointing a Firearm in Pushmataha County. The jury convicted him of the lesser-included misdemeanor offense of Reckless Conduct with a Firearm and the Hon. Mark R. Campbell sentenced Blythe to six months in the clink. REVERSED and REMANDED for NEW TRIAL because the trial judge refused to instruct on self-defense. This opinion contains very good language on the right of the accused to a self-defense instruction, especially in a case like this one where the entire theory of the defense case was self-defense and the jury wrote a note about it: "However, a defendant is entitled as a matter of law to have his theory of defense clearly set forth in an instruction to the jury, where there is evidence to support it and as long as that theory is tenable as a matter of law. Kinsey v. State, 1990 OK CR 64, paras. 7-8, 798 P.2d 630, 632. Even if the defendant's evidence is discredited, and wholly self serving, the jury must be advised of the defendant's theory of defense. Kinsey, supra; Jackson v. State, 1998 OK CR 39, para. 63, 964 P.2d 875, 891."
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Jerome Monroe v. State,
No. F-2006-352 (Okl.Cr., May 7, 2007) (unpublished): Jury Instructions; Defense Requested Instructions: Monroe was convicted in Tulsa County of Murder in the First Degree and sentenced to LWOP. The Court affirmed his conviction over several claims, but remanded for re-sentencing because his jury was not instructed on the 85% rule.
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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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Gregory Scott Thompson v. State,
No. F-2006-68 (Okl.Cr., May 22, 2007) (unpublished): Jury Instructions; Defense Requested Instructions: Thompson was convicted in Oklahoma County of Murder in the First Degree and sentenced to LWOP. The Court modified the sentence to straight life imprisonment on the basis that the jury was not given the 85% instruction. Significantly, the jury sent a note during deliberations which asked, "How long must you serve before getting paroled on a life sentence?" These types of jury questions, along with preservation of the issue by defense counsel, are a good recipe for appellate relief.
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United States v. Kayser,
No. 06-50178 (9th Cir., May 31, 2007): 1) Taxes; 2) Jury Instructions; Defense Requested Instructions: A conviction for tax evasion is reversed where the district court erred in declining to instruct the jury on defendant's theory of defense. The defendant had wanted an instruction on his defense that certain deductions he initially reported on his corporate tax return in 2000 should be applied to eliminate the deficiency on his personal return for that year. The panel held that, because the requested jury instruction was supported by law and had sufficient foundation in the evidence, it was reversible error for the court to deny it.
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Beverly Michelle Moore v. State,
No. F-2006-63 (Okl.Cr., June 11, 2007) (unpublished): Jury Instructions; Defense Requested Instructions: Moore was convicted of Murder in the First Degree in Oklahoma County and walloped with LWOP. In this appeal, she gets relief via the 85% Rule since her jury was not given this instruction. This case has the magical ingredient for relief: a jury note asking the trial judge if there were any "guidelines that determine the minimum time a prisoner will serve with [a] Life Sentence." Thus, Moore was able to show plain error and her sentence was modified to Life with the possibility of parole.
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Malone v. State,
2007 OK CR 34 (August 31, 2007): 1) Jury Instructions; Defense Requested Instructions; 2) Death Penalty; State Cases: This is the rather notorious capital murder case of Ricky Ray Malone who shot and killed OHP Trooper Nik Green. The Court affirmed the conviction, but vacated the death penalty on the basis of improper victim impact testimony. This is one of the Court's best explications on the topic of victim impact evidence; and the Court treats harshly the trial court, the prosecutor, and defense counsel for allowing the extended and emotional testimony to go to the jury in this case. Remanded for re-sentencing. There is also a detailed discussion on the defense of voluntary intoxication in malice murder cases and the appropriate jury instructions. In Malone's case, the erroneous instructions constituted plain error but it was held harmless. NOTE: The Court split 3-2 in this case with Judges Lumpkin and Lewis dissenting on the death penalty reversal.
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Alfred Gene Ryan v. State,
No. F-2005-649 (Okl.Cr., September 7, 2007) (unpublished): Jury Instructions; Defense Requested Instructions: Ryan was convicted in Kay County of Rape in the First Degree and Lewd Molestation. The jury set punishment at 20 years and 10 years, respectively, and the District Court ran them consecutively. Ryan raised several claims which were rejected, but the Court did modify the sentences to run concurrently based upon an 85% Rule error.
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Ball v. State,
2007 OK CR 42 (November 14, 2007): Jury Instructions; Defense Requested Instructions: Ball was convicted by jury in Tulsa County of First Degree Murder and Child Neglect. He was sentenced by Judge P. Thomas Thornbrugh to LWOP and Life, respectively. Ball lived in a Tulsa apartment with his four children, the youngest of which was Keenan Taylor who was almost three-years-old. Ball called 911 back in June, 2005, and reported that Keenan was injured. EMSA responded and found Keenan in the apartment, severely burned. Keenan died later that day. Ball's story was that he had boiled some water on the stove to make some macaroni and cheese, but changed his mind. When he took the water off the stove, the pot slipped from his hand and spilled on Keenan, who had been standing behind him. Ball did not call for help because he was afraid he would get in trouble. At trial, Ball did not call any witnesses and did not testify. HELD: 1) The trial court erred by denying the defense requested instructions on Excusable Homicide and Second Degree Manslaughter. Notably, the Court held that the trial court did not base its refusal upon a finding of insufficient evidence, but rather on the convoluted and misleading explanations of the law by the State. However, the Court held that the instructional error was harmless(!?) 2) Also, the Court found an 85% Rule where the jury asked questions about the sentence, defense counsel requested an 85% instruction, but the trial Court refused to give it. The case is remanded for re-sentencing.
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United States v. Baker,
No. 07-3002 (10th Cir., December 6, 2007) (Published): 1) Jury Instructions; Defense Requested Instructions; 2) Possession of Firearm by Felon: Poor James Baker was sitting in a car in a parking lot in front of his stepdaughter's apartment complex. A Wichita, Kansas, police officer on patrol noticed the car and thought it looked suspicious. When the officer turned his lights on the vehicle, Baker got out and approached the officer. The officer stopped him right there and a routine check on the vehicle revealed that the tag had been reported lost or stolen. Baker also had two active city bench warrants for his arrest. Now is when Baker's problems begin. When the officer searched incident to the arrest, he found a six-round speed-loader in Baker's pocket (no gun, just the speed-loader). It was discovered later that the ammunition in the speed-loader had been stolen earlier that night during a robbery of Doc's Steakhouse in Wichita. Baker was charged with Felon in Possession of Ammunition and with Stolen Ammunition. He went to trial on his theory that he found the ammunition on the ground after leaving a Halloween party at an apartment complex, he picked up the ammunition because he was worried that a child might find it. As luck would have it, before he could turn in the ammunition to the police he was approached by the officer in the parking lot and arrested. Baker requested an "innocent possession" jury instruction which the District Court denied. He was convicted and sentenced to 235 months(!!) The panel affirmed, holding that, although the circuit does recognize a "necessity defense" it is different from the "innocent possession" defense asserted by Baker. The worst part if this decision is the discussion by the majority about how Congress intended almost strict liability in these cases and that liability for "Good Samaritan's" and unjust results can be safeguarded by "sound prosecutorial discretion." (Ugh) Also, Baker's prior does count under the ACCA because, even though his civil rights had been restored under Kansas law, his right to possess a firearm was not specifically restored. NOTE: Judge Holloway dissented and would follow the decision of the D.C. Circuit which recognized the "innocent possession" defense.
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Spence v. State,
2008 OK CR 4 (January 29, 2008): Jury Instructions; Defense Requested Instructions: Spence was tried by jury in Cleveland County for Murder in the First Degree and sentenced to life imprisonment. At the conclusion of the evidence, Judge Hetherington found sufficient evidence to warrant a heat of passion instruction (Manslaughter in the First Degree). Spence objected and wanted to go all-or-nothing. Judge Hetherington, relying on Shrum, agreed, sustained the objection and granted Spence's wish which, of course, turned out to be disastrous for Spence. The rub in this case is that McHam was decided six months before Spence's trial and holds that the trial court is not bound by the wishes of a defendant in this regard and may instruct on lesser offenses over the objection of the defendant. Spence understandably filed a motion for new trial, alleging that Judge Hetherington made a mistake of law by following Shrum when it had been modified by McHam six months before trial (neither the trial court, nor the prosecutor, nor defense counsel were aware of McHam). As you might suspect, the Court was not impressed with Spence's argument, holding that nothing in Shrum or McHam prohibited the district court from doing what it did in this case and that in any event the district court's decision had no bearing on Spence's decision to go all-or-nothing. Frankly, I am a little confused why this case was selected for publication since it involves quirky facts that probably will not repeat in future cases.
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Curtis Dale Gibson v. State
No. F-2006-905 (Okl.Cr., April 10, 2008) (unpublished): Jury Instructions; Defense Requested Instructions: This is a Rape I (AFCF) case out of Jackson County in which the jury imposed a 30 year sentence. Gibson raised several claims on appeal, and the Court affirmed his conviction, but vacated his sentence and remanded for re-sentencing based on an 85% jury instruction error.
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Michael David Williams v. State,
No. M-2006-1334 (Okl.Cr., May 14, 2008) (unpublished): 1. Jury Instructions; Defense Requested Instructions; 2. Sufficiency of the Evidence. Williams went to jury trial in Cleveland County on two counts of misdemeanor Domestic Abuse. He was found guilty and the jury recommended 1 year and a $1,000 fine on each count. This is a typical situation where the police are called, the woman reports that the man has assaulted her, but then at trial it is a different story. In this case, the complaining witness told the responding officers that Williams had assaulted her, but at trial she testified that she got into a fight with her aunt on one occasion and on the second occasion she "fell over her children's bicycle while going down some stairs into her garage." The case presents two notable issues. First, the Court found plain error as to one of the counts where the trial court did not instruct the jury that the statements of the complaining witness to police must be used to determine her credibility rather than for substantive evidence of guilt. This was reversible as to one count because a police officer testified that her injuries would be consistent with the "fall" she described in court. The Court applied the rule of Leeks v. State, 95 Okl.Cr. 326, 332, 245 P.2d 764, 770 (1952): When a large part of the state's evidence consists of evidence offered to impeach its own witnesses, it is a "positive duty of the court to limit the consideration of such evidence as going only to the credibility of the witnesses and not to be considered as substantive evidence by the jury." (this was not plain error on the other count because when police arrived there was no sign of an aunt and it was clear Williams inflicted the injuries on that occasion). Concerning the second notable issue, the Court held that, as to "fall" count, the evidence was "insufficient for any rational juror to find guilt beyond a reasonable doubt."
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Michael Ralph Conroy v. State,
No. F-2006-1282 (Okl.Cr., August 21, 2008) (unpublished): Jury Instructions; Defense Requested Instructions: Conroy exercised his right to a jury trial in Logan County on a multitude of charges including Rape in the First Degree, Kidnapping, Domestic Abuse, Forcible Oral Sodomy, and A & B w/Dangerous Weapon, all AFCF x 2. He was sentenced to 50 years on the principal Rape charge by Judge Donald Worthington. Although Conroy raised several issues, the Court affirmed his convictions, but remanded for RE-SENTENCING on all counts because the jury was not instructed on the 85% Rule.
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Richard Wayne Robbins Jr., v. State,
No. F-2007-807 (Okl.Cr., September 5, 2008) (unpublished): Jury Instructions; Defense Requested Instructions: This case (although it is unpublished) seems to be the death knell for any hope of a sex offender registration jury instruction. I handled this appeal and it was a "pristine" case for the Court to rule on the issue. The issue was preserved quite well by trial counsel both orally and with a proposed written instruction, and the jury actually sent notes asking directly about registration, none of which were answered by the trial court. On appeal, the Court denied the issue 4-1, stating that registration is automatic upon conviction and thus not within the purview of the jury, and also that registration is merely a tangential effect of a conviction and not within the jury's control. NOTE: Judge Chapel dissented based upon his special concurrence in the unpublished case of Edmonds v. State, No. F-2006-220, but was apparently unable to swing any more votes on this issue.
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Watts v. State,
2008 OK CR 27 (September 25, 2008): Jury Instructions; Defense Requested Instructions: Watts was tried by jury in Oklahoma County and found guilty of multiple drug counts after having been on a prior deferred sentence for a drug felony. As to the use of the deferred to enhance, the Court stated that the objection was without merit in light of the plain language of 63 O.S. sec. 2-410 and, under Platt v. State, 2008 OK CR 20, 188 P.3d 196, it was not error since Watts was still on his deferred at the time of trial. However, the Court found error in the instructions/range on the count of Maintaining a Dwelling. The trial court instructed the jury that the range was not more than 10 years (pursuant to 21 O.S. sec. 51.1) when the correct range was 2-Life. The Court modified the sentence on this count from 8 years to 5 years. The Court also refused to extend the 85% Rule instruction in Anderson to ineligibility of earned credits in Trafficking cases and denied the other claims raised by Watts. AFFIRMED.
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