Category Archives: Oklahoma Criminal Defense Weekly

OCDW 06.19.17


www.ocdw.com

06.19.17

James L. Hankins, Publisher

 

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

 

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

 

COUNTY No. 6: BLAINE COUNTY: Named for James G. Blaine, Secretary of State under President Benjamin Harrison in the latter part of the 19th century, the county seat is Watonga. According to Wiki, Blaine County is the birth place of Clarence Nash, who did the voice for Donald Duck. I have practiced in Blaine County before, bringing my county total to 4 out of 6.

 

OKLAHOMA

 

Kolosha v. State, 2017 OK 48 (June 6, 2017): Return of Property: A pro se prisoner in Tulsa County filed a writ of replevin to recover property seized in a criminal case. The District Attorney’s Office denied that it possessed the property, and the district court denied the writ. In this opinion, the Court affirmed the denial of replevin, but remanded for the district court to consider the effect of 22 O.S. 1321, which allows the release of seized evidence.

Witherow v. State, 2017 OK CR 17 (June 15, 2017): Retroactivity: This is a Trafficking case out of Washington County (the Hon. Curtis L. DeLapp, presiding) where the accused was convicted and sentenced to LWOP. On appeal, he argued that mandatory LWOP was not a proper punishment in light of the subsequent change in the sentencing law (a claim that was not raised at trial). Witherow was arrested and charged on May 22, 2015. A month earlier, in April 2015, the Legislature passed the bill amending the mandatory LWOP sentence, which became effective on November 1, 2015; and Witherow’s trial began after this date, in February, 2016. The Court held that statutory changes are prospective only, unless there is an indication that the Legislature intended retroactive effect; thus, Witherow gets no relief.

Johnny Lee Ingram v. State, No. F-2015-1007 (Okl.Cr., June 8, 2017) (unpublished): Jurors: Ingram was convicted by jury in Tulsa County (the Hon. James M. Caputo, presiding), of Assault and Battery w/Deadly Weapon; and acquitted him of a count of Possession of Firearm AFCF. The jury sent a note asking the trial court this question: Instruction 22: Does criminal intent or commission of a crime refer strictly to the case at hand or any crime committed? The trial court gave the standard non-answer, with the consent of the parties, that the jury had all the law they needed. The jury sent a second note about instruction 22: Does the admission that he was there to commit a crime not listed in the current charge make him principle (sic) to the charged crime if he is deemed to not have prior knowledge of the crime charged? The Court reversed, finding that the trial court’s answers did not clarify sufficiently the jury’s concerns regarding the law of principals to crimes. NOTE: Judge Lumpkin dissented.

 

TENTH CIRCUIT

 

James Dwight Pavatt v. Terry Royal, Warden, No. 14-6117 (10th Cir., June 9, 2017) (Published) (Kelly, Briscoe & Hartz) (W.D. Okla., Hon. David Russell): Habeas Corpus (Capital Habeas; HAC): In this capital habeas case involving an Oklahoma death row inmate, the panel denied relief with respect to the convictions, but granted relief as to the sentence on the basis that the evidence failed to support the “heinous, atrocious or cruel” aggravating circumstance. NOTE: Judge Briscoe dissented, which means this issue might get some play in the en banc court, or SCOTUS.

United States v. Brett J. Williamson, No. 15-3147 (10th Cir., June 6, 2017) (Published) (Tymkovich, C.J., Briscoe & Murphy): IAC; Pro Se Representation: In this child porn case, defense counsel and the prosecutor had a personal history together (they had been married, divorced and shared a child), and Williamson objected and demanded new counsel (for the second time). The panel found no error in this, refusing to extend SCOTUS precedent in this area, and also found no error in the pro se representation which was voluntary.

 

UNITED STATES SUPREME COURT

 

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

 

No new cases.

 

OTHER CASES OF NOTE

 

United States v. Edward Dennis Jones, No. 15-4763 (4th Cir., June 1, 2017): Double Jeopardy; Conspiracy: The panel found a Double Jeopardy error in successive conspiracy prosecutions in different jurisdictions. NOTE: Instructive analysis on this topic.

United States v. Harold Hall, Jr., No. 15-4720 (4th Cir., June 1, 2017): Burks and Bad Acts: Drug conviction based on constructive possession is reversed when the district court allowed 404 evidence of prior drug convictions. NOTE: This is a split 2-1 panel with insightful analysis of this issue.     

Walter Alexander Sorto v. Lorie Davis, Director, No. 16-70005 (5th Cir., June 15, 2017): Death Penalty (MR): The panel held that the corrective process in Texas is not effective to protect the rights of Sorto under Atkins to pursue his claim of intellectual disability (lack of funding).

 

VICTORIES

 

BEVERLY A. ATTEBERRY, Tulsa, represented a client involved in a wild domestic dispute that spawned multiple charges against the client, including Assault and Battery w/Deadly Weapon and operating a still inside his home. The jury acquitted on everything, except the still charge which was admitted during opening statements, and the client received a five year suspended sentence. Nice work, Beverly!

 

JURY PANELS

 

Tulsa attorney Richard O’Carroll has filed a Motion to Quash the jury panel in a felony case in Tulsa County based upon the way in which jury panels are created. This is an area of the law that is not typically litigated, but Richard has delved into the issue, including the fact that a Canadian Company called Courthouse Technologies, Ltd, seems to operate the way in which jury pools are created here in Oklahoma.

His motion is an in-depth treatment of the topic and deserves to be watched to see how it is resolved. It may also behoove other defense counsel in other counties to take a look at the jury selection procedure and determine whether those procedures comply with the law.

 

HEARSAY

 

REGRET: A woman who attempted suicide by jumping off a bridge, and survived, regrets her decision.

HOMICIDE RATE: Police detectives in Tulsa are worried that the homicide rate will increase over last year.

PRISON CORP.: CoreCivic, formerly CCA, acquired two inmate reentry sites and then promptly closed them.

OFFICER INVESTIGATED: A Tulsa police officer is under investigation for pulling his weapon on a woman during a traffic stop, which was captured on video.

SUED: Corrections officials have been sued over failing to imprison an inmate who killed their relative in a bank robbery.

UNDERSTAFFED: Tulsa County Public Defender says his office is understaffed and he has requested more funds.

CAUGHT: The last of the four inmates who escaped from the Lincoln County Jail have been caught.

NEW DEPUTY: Rick Whitten has been named the new Deputy Warden at LARC.

DUI HEARINGS: Gov. Fallin has issued an executive order reinstating the right of motorists to drivers license revocation hearings.

JAIL BAILED OUT: Voters in Tillman County have voted in favor of a sales tax in order to keep the jail open.

NURSE CHARGED: A nurse at James Crabtree Correctional Center has been charged with bringing in a cell phone and “mutual groping” of an inmate.

DISMISSED: An Oklahoma County Judge dismissed charges against a Payne County Assistant District Attorney whose ex-wife, a current Assistant District Attorney in Oklahoma County, accused him of theft from her home.

DETENTION OFFICER ARRESTED: A Tulsa County detention officer has been arrested for smuggling contraband into the jail.

SNITCHES: Interesting article about jailhouse snitches and how they profit from snitching.

 

WACKY CRIME

BEER RUN: The coach of the boys basketball team in Tishomingo was fired for making a beer run…in a school bus.

MAKE YOURSELF COMFORTABLE: A burglar apparently broke into a home…then took a shower and put on the victim’s underwear.

PICKY EATER: An Oklahoma City man found that Popeye’s Chicken did not have the food he wanted…so he threatened to blow the place up.

SIGN THEFT: Theft of road signs in Coal County is becoming an expensive problem.

HIGHER BOND: A woman being arraigned in Garfield County found out that the more you argue with the judge, the higher your bond will be.

OFFICER ARRESTED: An Oklahoma City Police Officer has been arrested for domestic abuse…but I bet it’s not what you think.

 

LEGAL CALENDAR

 

THURSDAY, JUNE 29th and FRIDAY, JUNE 30th, 2017: 2017 PATRICK A. WILLIAMS CRIMINAL DEFENSE INSTITUTE will take place in Oklahoma City at the Reed Center located at the Sheraton Hotel. The link goes to registration info and more info about the venue.

 

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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