Category Archives: Oklahoma Criminal Defense Weekly

OCDW 11.06.17


www.ocdw.com

11.06.17

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).

 

No. 22: DEWEY COUNTY: Dewey County is located in the western part of our state, and the county seat is Taloga. The county was named after Admiral George Dewey, the only person in the history of the U.S. to attain the rank of Admiral of the Navy. I have traveled through Taloga, but do not recall handling any cases at the courthouse there, which brings my current total to 14 out of 22 counties in which I have represented a client.

 

OKLAHOMA

 

Hunsucker v. Fallin, 2017 OK 84 (October 30, 2017): DUI; Stays: DUI attorneys John Hunsucker, Bruce Edge, Charles Sifers, and Stephen Fabian sued the Governor on behalf of their clients to stay the implementation of the 2017 Impaired Driving Elimination Act 2, while the merits of the Act are hashed out.

State v. Kistler, 2017 OK CR 24 (October 25, 2017): Extraordinary Writs; Double Jeopardy: The accused was charged with Robbery with a Firearm and another count of Burglary in the First Degree in Payne County. The Hon. Stephen Kistler agreed with the accused that he could not be charged and punished with both counts because they involved the same act or omission under 21 O.S. 11. The State argued that they were separate crimes under the facts of the case, and that even though there was a published opinion on point, it had been eroded by subsequent authority. The Court agreed with the State and overruled Lawson v. State, 1971 OK CR 188. NOTE: The Court has been steadily chipping away at 21 O.S. 11 for several years now, watering down the double punishment protection for citizens in the process. Lawson and the line of cases supporting it established a sensible legal analysis that focused on the course of conduct of the accused. The Court has changed this analysis in subsequent cases to an ambiguous legal “test” that allows it to treat a course of conduct as a series of discrete crimes, even if they are related.

Abby Rose Whitetail v. State, No. F-2016-709 (Okl.Cr., November 2, 2017) (unpublished): Robbery: Whitetail was convicted by jury in Kay County of First Degree Robbery AFCF, the Hon. David R. Bandy, presiding. On appeal, she asserted that the threat of force use was employed as a means of escape, and that the theft was an act of larceny. The Court affirmed, holding that the use of force or fear to retain wrongful possession of property is enough to convict for robbery. NOTE: This was an enterprising argument of statutory construction, since it seems obvious that the intent of the robbery statute is prevent the use of force or fear in acquiring the property; but here, the Court ignored a strict reading of the law and held that “wrongful retention” of property counts as well.

Summer Faith Turner v. State, No. F-2016-987 (Okl.Cr., October 26, 2017) (unpublished) (per curiam): Indictments and Informations (Specific vs. General): Turner was convicted by jury in Bryan County (the Hon. Mark R. Campbell, presiding) of Child Abuse by Injury (two counts) when she apparently tattooed her child. She appealed on the basis that she should have been charged under the more specific statute of performing or offering to perform piercing or tattooing on a child under 18 (21 O.S. 842.1) instead of the general child abuse statute. Unfortunately, she did not raise this issue at trial, and the Court did not find plain error. NOTE: There is good case law supporting the notion that the discretion of the prosecutor is not absolute, and that it must be channeled by the intent of the Legislature when a criminal act is punishable under multiple statutes. Generally, the more specific statute will control, which would seem to be the case here. The analysis by the Court seems thin, and the claim was not preserved properly for appeal, which is why I suppose it ended up in an unpublished summary opinion, but take note that there are many statutes that govern specific conduct, and some of these carry lesser penalties than the general statutes that the State likes to use most of the time.

Charles A. Shadid, LLC, v. City of Oklahoma City, No. M-2016-786 (Okl.Cr., October 26, 2017) (unpublished): Municipalities (Zoning): A property owner in Oklahoma City was convicted in municipal court of zoning infractions for allowing adult entertainment on his property without first obtaining the required permits. In this opinion, the Court affirmed over various claims relating to this issues. NOTE: I included this opinion because zoning issues are not litigated that often in criminal courts.

Troy Dale Richardson v. State, No. M-2016-727 (Okl.Cr., October 26, 2017) (unpublished): Public Intoxication: Richardson was convicted of a misdemeanor count of public intoxication at a bench trial before the Hon. John Gerkin, Special Judge in Washington County, for which he received a 30-day suspended sentence and a $100.00 fine. Richardson litigated this case on the legal ground that a person cannot be arrested for public intoxication while a passenger in a private vehicle. The trial judge seemed to agree with Richardson, as noted by the OCCA, but authority suggests otherwise, also noted by the OCCA; but the Court seemed to side-step the main legal point by pointing out that Richardson had exited the vehicle and was thus drunk on a public road. However, I included this case because the issue might come up again in a different context.

Gary M. Johnson v. State of Oklahoma, ex rel., Oklahoma Department of Public Safety, No. 115,924 (Okla. Civ. App., Div. III, October 25, 2017) (Released for Publication): Attorney Fees (DUI/DPS): This is a great opinion where OKC DUI lawyer Stephen Fabian secured a judgment against DPS from the Hon. Geary L. Walke (Oklahoma County) for attorney fees and expert witness fees in a case where DPS had no reasonable basis for revoking the driver’s license under the law.

Dwight Albert Cross v. State, No. F-2016-702 (Okl.Cr., November 2, 2017) (unpublished) (per curiam): Jury Instructions (Defense Theory): Cross was convicted by jury in Tulsa County (the Hon. Doug Drummond, presiding) of Lewd Acts. Cross argued on appeal that the trial court erred in refusing his requested instruction on the lesser offense of solicitation of prostitution, which was the defense theory of the case. The Court acknowledged the law requiring such instructions, and concluded that the trial court abused its discretion in denying the instruction; however, the Court found the error harmless.

 

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.

 

VICTORIES

 

BRECKEN WAGNER, McAlester, secured a dismissal before trial for his client who was accused of a felony count of sealing a dog, whom the client thought was in distress in the back of a pick-up truck. Brecken attacked the charge on legal grounds as well, which Judge Tim Mills found persuasive. The State may appeal, but for now Brecken and his client have prevailed. Nice work, Brecken!

WINSTON CONNOR, II, Miami, secured an acquittal for a client charged with First Degree Manslaughter during a pig hunting accident. The jury saw it as an accident after less than two hours of deliberation. Good job, Winston!

J.P. HILL & CLAY CURTIS, OK CO P.D., secured an outright acquittal in a first degree murder case in Oklahoma County. Spectacular win by the defense, and congratulations J.P. and Clay!

NICK SOUTHERLAND & TIM WILSON, OK CO P.D., secured an acquittal for a client charged with murder in the first degree and pointing a firearm, although the jury did convict on lesser offenses. Still, terrific work, Nick and Tim!

PAMELA SNIDER, DAVID T. MCKENZIE, ANTHONY MITCHELL & SHEILA CUNNINGHAM scored an impressive win in Kiowa County for a client charged with manslaughter in the first degree after he apparently got his ass kicked at a bar in Hobart, then proceeded to drive to the home of the 72-year-old man who assaulted him and beat him until he died. The jury convicted the client of misdemeanor assault and battery. The trial judge was Brad Henson and the prosecutor was Ricky Marsh. Seems like a very improbable win. Congrats Pamela, David, Anthony, and Sheila!

 

REFLECTIONS OF ROBERT ALLEN ZIMMERMAN OF DULUTH, MN

 

The Voice of a Generation received the Nobel Prize for Literature earlier this year, and he accepted the honor with a particularly powerful, and sometimes quixotic, acceptance speech.

Dylan may be the voice of his generation, but not mine. Although I was around in the 1960s, I don’t remember much of it, mainly because I was born in October, 1968, the year that the Rev. Dr. Martin Luther King, Jr., was assassinated (I have always remembered the date, April 4, 1968, because it was the very day that my parents were married), followed by Bobby Kennedy just a couple of months later. By that time, Dylan had already reminded his peers that the times definitely were a-changin’; and Like a Rolling Stone had already cemented his personality into the collective conscious of the counter-culture. As Springsteen described it upon first hearing the single, “that snare shot sounded like somebody’d kicked open the door to your mind.”

But to Gen-X-ers like me, folk music is like kryptonite. We grew up comfortable with bad hair bands and Madonna, raw country music out in the sticks, the simple adolescent hard-thumping songs of AC/DC, the supply-side economics of the Gipper, and the greased-back look of Gordon Gekko assuring us that greed was good. Still, Dylan was able to creep into my life, and that of my sister, during the 1970’s through old-school 8-tracks and vinyl worn thin by my mother as she painted during the day and let me play to the songs that she liked. She listened to a lot of music, but Desire was one of her favorites, which rotated during the day with Some Girls by the Stones, Carney by Leon Russell, Pearl by Joplin, some Freddy Fender, and others (Jerry Lee Lewis popped up from time to time, but I think that the appearance of The Killer was slipped into the rotation by my father). I would spend hours playing with my toys and singing along with the quirky voice inflections of Tight Rope, the rockin’ version of Me and Bobby McGee from Joplin (still the best), and the catchy country tunes of Before the Next Teardrop Falls (I was able to see Freddy Fender later in life and he was terrific in a small venue).

But it was Desire, on that crappy 8-track that skipped sometimes during the middle of songs, that I liked the most (with Some Girls not far behind, particularly Miss You and When the Whip Comes Down). The hard-driving and epically long Hurricane (with the dirty words) commanded attention, Isis was a moody danger-song to me back then with inscrutable lyrics that made Dylan actually sound like a singer, and the rest of the line-up that was just plain fun to listen to, from Mozambique, Romance in Durango, Black Diamond Bay which sometimes made my mom laugh for reasons beyond my ken at the time, and the agonizingly slow Joey.

So, Dylan may not have revolutionized my generation, but he did have a back-door influence through our parents. I have revisited Desire over the years, and it is odd how those songs still rattle around in my head even after 40+ years, and how the lyrics, heard then by a boy and now by a 49-year-old man, add new depth to the songs. But, when Dylan was awarded the Nobel Prize for Literature, I have to confess that I didn’t pay much attention to it, that is, until my sister asked me recently if I had heard or read his acceptance speech. I had not. She said it was worth the read, or even better to listen to it narrated by Dylan himself in his unique style.

So, I did.

If you have not read or listened to it yet, I would recommend that you do. Dylan questions whether he should have even been awarded the Prize at all since, after all, he’s a song-writer, not a poet or an author. He made the point that songs are unlike literature; they are meant to be sung and heard that way, not read in the mind of the reader. But to make this point, he launched into extended discussions of three works of literature that had stayed with him since grammar school: Moby Dick, All Quiet on the Western Front, and The Odyssey. This prompted me to re-visit these works myself, although through Audible with a professional reader to read them aloud to me through a pair of high-quality noise-canceling Bose headphones (Anthony Heald did a particularly good job narrating Moby Dick), which may be another nuance about how literature is intended to be processed by the reader, but in any event, after Dylan described how he, at the age of 18, had traveled from Minnesota to see the 22-year-old Buddy Holly sing, Dylan described these works in great detail, drawing out the themes of each.

In the end, he tells us what we should have already figured out, that Moby Dick isn’t about a whale, it’s about men and women and madness, and why we do what we do. All Quiet on the Western Front isn’t about war, it’s about men and women, too, how horror affects us and why should it be? The Odyssey isn’t about a journey, it’s about men and women, too, and finding your way home again. Dylan helps us do that, too, and comforts us at the end when he tells us that we don’t always have to know what it all means. Sometimes it’s enough that it just sounds good.

 

HEARSAY

 

100 YEARS: Next week will mark the 100 year anniversary of the federal courthouse in Lawton.

INDIGENTS & COURT FEES: Two law firms in Tulsa have sued every Sheriff in Oklahoma in federal court over the way that indigent people are jailed over non-payment of fines and court costs.

WAL-MART: Interesting article about a “restorative justice” program for shoplifters that does not involve the police, but has a component of payment that might be called extortion.

COMPLAINT: An OKC woman details her complaint against an OKC police officer for aggressive conduct.

CANDIDATE: Attorney Jill M. Tontz has announced that she plans to run for District Attorney for Payne and Logan Counties.

LAB: The Crime Lab at the Tulsa Police Department has received some acclaim for the way it conducts evidence collection and analysis.

ARRESTS: Six employees at the Tulsa County Detention Center have been arrested since June for various offenses.

NO MOONLIGHTING: The Garvin County Sheriff has banned all outside work for employees.

FIRST FEMALE: The town of Haskell has hired its first female police officer.

UNDERSHERIFF: Blake Green has been named the new Undersheriff in Cleveland County.

DISMISSAL: A felony charge of Lewd Molestation leveled against a retired McAlester Police Lt. has been dismissed by the State after the complaining witness changed her statement.

DENIED: Oklahoma County Commissioners have denied a request by the U.S. Justice Department to inspect the jail.

NEW DIGS: Gov. Fallin recently toured the new facilities of the state Medical Examiner.

APPROVED: O.U. Assistant Dean Scott Palk has been confirmed by the Senate for the federal bench in W.D. Okla.

 

WACKY CRIME

 

DON’T QUESTION IT: Citizens in Tonkawa wondered why a man who was arrested the week before for domestic abuse was seen driving a police cruiser…and the explanation that the Chief was helping out the man’s detailing business did not seem satisfactory.

ELEMENTARY: Police in Chickasha tracked down a burglar the old fashioned way…by following his distinctive tire tracks.

FED UP: A grandmother in Muldrow is in jail for shooting at her grandchildren…luckily no one was injured.

LAKE CRASH: A truck crashed into the lake home of country singer Blake Shelton on Lake Texoma.

DEDICATION: Two youths blew through $15,000.00 in cash that they stole from a home in Wagoner County.

ODD GIFT: The Chief of Police in Enid received a letter in the mail that contained 100 $1 bills folded in the shape of hearts from an anonymous citizen.

YEP: An inmate in prison for child sexual abuse has been charged with downloading child porn on a computer at a prison.

IT BURNS US: A nurse in Oklahoma City has been banned from working at the jail…after she performed an exorcism on an inmate that did not end well.

GHOST STORY: It turns out that the Cherokee County Courthouse might be…haunted.

WAY BACK: Nice article about the time that Bonnie & Clyde decided to visit Enid, Oklahoma.

 

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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