(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).
Charles Edward Weimer v. State, No. F-2014-698 (Okl.Cr., October 28, 2015) (unpublished): Restitution; Confrontation and Cross; Accreditation: In this child abuse murder case out of Lawton, the Court affirmed the conviction and sentence, but vacated a restitution order that was supported by nothing more than an amount stated in the pre-sentence report. NOTE: Weimer also raised an issue regarding the lack of accreditation of the Medical Examiner’s Office. The Court found no error in either the lack of accreditation or the ruling of the trial court to not allow cross-examination on that topic. However, Judge Lewis dissented on the denial of cross-examination on the accreditation issue, finding error but holding that it was harmless.
Dale Lynn Taylor v. State, No. F-2014-500 (Okl.Cr., October 29, 2015) (unpublished): After Formers (Enhancement): Taylor was convicted by jury in Marshall County (the Hon. Wallace Coppedge, presiding) of Second Degree Rape, AFCF, and sentenced to 20 years. The Court affirmed the conviction, but modified the sentence to 15 years because the prior used to enhance had been discharged more than 10 years pursuant to 21 O.S. 51.1 (on plain error review since there was no objection at trial).
Aaron Mitchell Stigleman v. State, No. F-2013-1129 (Okl.Cr., October 30, 2015) (unpublished): Right to Present a Defense; IAC: Stigleman was convicted by jury in Beckham County (the Hon. Doug Haught, presiding) of First Degree Murder and sentenced to LWOP. Reversed and remanded because the trial court denied the defense expert funding on the possibility of methamphetamine psychosis (OIDS had denied funding for the expert, and the trial court also denied funding out of the court fund), and also on the basis of IAC when trial counsel failed to properly request the expert timely. NOTE: Judges Lumpkin and Lewis dissented, finding no prejudice in any error.
Mica Shoate v. State, No. F-2014-448 (Okl.Cr., October 27, 2015) (unpublished): Search and Seizure (Jail Calls): Shoate was convicted by jury in Tulsa County (the Hon. James M. Caputo, presiding) of Child Abuse Murder and Child Neglect and sentenced to LWOP and Life. Affirmed over several claims, including an objection to the recorded phone calls made by Shoate from the jail to her brother, based upon the Oklahoma Security of Communications Act. The Court construed the Act to allow interception by jail officials, and also on the basis of consent since inmates and the persons receiving the calls are given notice of the recording of the calls.
Tyrone Lamont Nash v. State, No. F-2014-538 (Okl.Cr., October 27, 2015) (unpublished): First Amendment (Student Teacher Sex): Nash was convicted at a non-jury trial in Oklahoma County before the Hon. Jerry D. Bass, of the crimes of Second Degree Rape and Forcible Oral Sodomy. This case apparently involved a teacher having consensual sex with a student in the same school system, and Nash argued that there is a fundamental right to do this, which was rejected by the Court.
Roderick Leandrew Jackson v. State, No. F-2014-452 (Okl.Cr., October 28, 2015) (unpublished): Drug Court: Special Judge Robin Adair (Muskogee County) sentenced Jackson to imprisonment for several counts of KCSP, Attempting to Elude, and DUS, but stayed the sentences pending his successful completion of Drug Court. The State sought to terminate him from Drug Court, the trial court did so, but in this appeal the Court reversed because Jackson had already been sanctioned for the violations (the State agreed that there was reversible error).
Rocky Dale Armstrong v. State, No. F-2014-453 (Okl.Cr., October 26, 2015) (unpublished): Indictments and Informations (Vague Information); Jurisdiction (Appellate): Armstrong was convicted by jury in Beaver County (the Hon. Clark Jett, presiding) of multiple counts of Lewd Acts and other sex crimes. This is one of those cases where the State alleged that the criminal acts occurred within an expansive time frame (three and a half years). On appeal, Armstrong objected to the lack of specificity as to the dates, citing Due Process and the lack of opportunity to present a defense, lack of opportunity to present an alibi defense, and the fact that he remains vulnerable to Double Jeopardy. The Court affirmed, but there is a decent discussion of this issue. NOTE: Judge Jett pronounced sentence on February 21, 2014, but vacated the original J&S because it was rendered without a PSI report which was mandatory. The notice of appeal was filed within 10 days of the pronouncement second sentence, and also the Petition in Error was filed within 90 days of the second pronouncement, but not the first. The Court held that the first pronouncement was valid and remained in force as to the conviction, but that the trial court could properly pronounce sentence after considering the PSI. This is the only instance of which I am aware where the Court has held that it had jurisdiction in a case where the jurisdictional documents (the Notice of Appeal and the Petition in Error) were filed after the deadlines. Also, as to the claim regarding the insufficiency of the Information, this was attacked via a motion to quash filed and heard before the district court arraignment, which was sufficient to preserve the issue for appellate review.
United States v. Dennis Eugene Rodenbaugh, No. 13-1081 (10th Cir., August 25, 2015) (Published) (per curiam) (Matheson, Bacharach & Moritz): Interrogations (Fifth Amendment); Waiver (Appellate Issues): Rodenbaugh was convicted of baiting wildlife for tree-stand hunts and selling the wildlife taken under the Lacey Act. Affirmed over claims relating to: 1) denial of his motion to suppress his confession; 2) Colorado law on this subject is void for vagueness; 3) insufficient evidence; 4) sentence enhancements; and 5) condition of supervised release. NOTE: This opinion contains a good discussion on the suppression issue, the voluntary nature of confessions, and the claim regarding the order of presentation of evidence at the suppression hearing. Also, there is an extended discussion on waiver/forfeiture of issues, and what happens when the Government itself does not properly assert that an issue has been waived/forfeited.
Johnny Ray Davis v. Tracy McCollum, No. 15-5018 (10th Cir., August 25, 2015) (Published) (Hartz, Tymkovich & Moritz): Habeas Corpus (COA): Davis was a juvenile who was sentenced to LWOP. He petitioned for habeas relief in light of the Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012) (invalidating mandatory LWOP for juveniles), but in this opinion the panel held that his claims were time barred, and that the Miller claim was not debatable because the jury in Davis’ case had the option of life with parole, thus imposition of LWOP was not mandatory.
United States v. Joseph C. Kupfer, No. 13-2189 (10th Cir., August 19, 2015) (Published) (Briscoe, C.J., Baldock & Bacharach): Jury Instructions (Tax Evasion); Federal Sentencing Guidelines (Obstruction of Justice and Calculating Offense Level): Kupfer and his wife were convicted of tax evasion and conspiracy in a kickback scheme. The conviction for tax evasion is affirmed over an objection to the jury instructions, but the sentence is vacated because the district court selected the wrong guideline for the offense and enhanced improperly the sentence based on obstruction of justice (improper to use obstruction for the defendant’s failure to disclose his own crime).
United States v. Kenneth Eugene Barrett, No. 12-7086 (10th Cir., August 19, 2015) (Published) (Kelly, Hartz & Matheson) (E.D. Okla., Hon. James H. Payne): IAC: Barrett was sentenced to death in federal court for killing a state law enforcement officer, which was affirmed on direct appeal. In this 2255 proceeding, the panel reversed and remanded for an evidentiary hearing on an IAC claim involving whether trial counsel were ineffective by failing to investigate and present evidence of Barrett’s background and mental health for the penalty phase.
Phillip Hancock v. Anita Trammell, No. 12-6255 (10th Cir., August 18, 2015) (Published) (Lucero, Matheson & Bacharach) (W.D. Okla., Hon. Stephen Friot): Burks Notice and Bad Acts; Habeas Corpus (Capital Habeas Cases): This Oklahoma capital case is affirmed on habeas review on claims relating to: 1) evidence of a prior murder; 2) jury instructions on self-defense; 3) IAC for failing to request a jury instruction on the lesser-included offense of manslaughter while resisting a criminal attempt; and 4) cumulative error. NOTE: Judge Lucero dissented, and would reverse as to the claim regarding the evidence of a prior murder.
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.
KRISTI CHRISTOPHER, OIDS, secured a terrific appellate win in the unpublished Stigleman case featured above, in which she won a reversal in a First Degree Murder case because the trial court refused to provide funding for a necessary defense expert. Great job, Kristi!
SARAH KENNEDY, Perry, won a not guilty verdict last week in a jury trial involving a client accused of child abuse (10 fractured bones). The evidence was vague about the details of the injuries and how and when they were inflicted. Four jurors were crying as the verdict was read, wanting to hold someone accountable, but in the end they did their duty and acquitted when the evidence was not strong enough to convict. Good job on a tough case, Sarah!
JOE WHITE, OKC, won an acquittal for a client in Oklahoma County last week who was charged with felony assault and battery involving an altercation with a then-pitching prospect for the New York Yankees over signing bonuses. The defense was that the client, Anthony David Morales, acted in self-defense, and the jury took about two hours to agree. Nice work, Joe!
CLE: The Sixth Annual Barry Albert Memorial Mock Trial: Learning from the Oklahoma Criminal Jury Trial Masters
THURSDAY, NOVEMBER 12 & FRIDAY, NOVEMBER 13, 2015
Year in and year out, this is one of the best CLE events presented, in my opinion (the CDI is the second must-attend). David McKenzie, Assistant Public Defender in Oklahoma County, conceived it and it has been a hit ever since. The idea is to model a mock jury trial as it happens live in front of a lay jury so that attendees can see how it happens in a situation similar to a real trial. David added a twist in that the defense team consists of lawyers who practice criminal defense and all of whom have been awarded the Clarence Darrow Award for trial advocacy (David himself won it in 1997).
Punctuating the proceedings with ethical observations and learning/teaching moments, is Oklahoma trial legend Garvin Isaacs, who offers insights into how the prosecution and defense are doing, live as it happens. Registration is HERE, and below is the list of participants and the fact pattern at issue this year. Mark your calendars for this one!
Barry Albert Memorial Mock Trial:6th Annual Learning from the Oklahoma Criminal Jury Trial Masters
Oklahoma City University Moot Courtroom
800 N. Harvey, Oklahoma City, Oklahoma
NOTE: Pre-registration is required. No walk-ins permitted.
Ethics Advisor and Trial Techniques Presenter
Garvin Isaacs, Garvin A. Isaacs, Inc., Oklahoma City
The Trial of Kristoffer M. Chamberlin
THE FACTS: On August 4, 2010, at 5:18 a.m. the Braum’s store located at 9020 N.E. 23rd Street in Midwest City was robbed of just over $2900.00. The robber came into the store just as the morning shift was coming in to open for breakfast. The robber wore a mask, a hooded sweatshirt and gloves. The robber ordered the employees at knife point to the back of the store where the safe was and demanded that it be opened and he be given all the money. After he got the money he ran from the store into the early morning darkness. One of employees called 911 and the Midwest City Police rushed to the scene. While waiting for the police to get there the employees started to talk. One of them said, “I think the guy who just robbed us was Kris.” The three other employees agreed the robber was Kristoffer Chamberlin, a fellow employee of that very same Braum’s store.
The employees told the police who they though the perpetrator of the robbery was and Midwest City Detectives rushed to Kris’ house. Kris was supposed to be helping the others open the store that morning but called in sick.Kris lived with his girlfriend’s parents near the Braum’s. When they arrived at Kris’ house Kris was present and he told them he had not left the home except for around 7:00 a.m. to get a pack of cigarettes. Kris denied any involvement in the robbery. The police were given consent to search but did not locate the money or the ski mask. The police did notice that a knife was missing from a wooden knife holder in the kitchen. The home had an outdoors shed that was searched. The police found a gray sweatshirt in the shed but did not see the significance of sweatshirt because the employees said the robber worn a black sweatshirt. The following day the detectives were able to view the security video of the robbery and found the eyewitnesses were wrong and the robber, in fact, did have a gray sweatshirt on.
Kristoffer Chamberlin was immediately arrested and is now on trial for his life.
Richard Anderson, 2008 Clarence Darrow Award Recipient, Oklahoma City
Cindy Viol, 2009 Clarence Darrow Award Recipient; 2007 Barry Albert Award Recipient, Oklahoma City
Tony Coleman (2015 Clarence Darrow Award)
Johnny Albert (1994 Clarence Darrow Award)
Merle Gile (1990 Clarence Darrow Award)
David Autry (1989 Clarence Darrow Award)
Jarrod Stevenson (2012 Clarence Darrow Award)
J. W. Coyle, III (1995 Clarence Darrow Award)
Robert Ravitz (1996 Clarence Darrow Award)
David McKenzie (1997 Clarence Darrow Award)
DRONE: A drone was used recently as a delivery vehicle to import contraband (hacksaw blades, cigarettes, drugs, etc.) into OSP at McAlester. However, it apparently clipped some razor wire and crashed where it was discovered by prison personnel.
WARDEN RESIGNS: Anita Trammell, the first female Warden of OSP at McAlester, has resigned the position and will use her accrued leave time to no longer report for work.
EXECUTION: The State of Florida executed inmate Jerry Correll last week for killing three persons in 1985.
RHODES RESIGNS: Oklahoma County Court Clerk Tim Rhodes has resigned his position to accept the position of Director of Administration with the Oklahoma Corporation Commission.
NOLAN COMPETENT: Nolan, who is on trial in Cleveland County for the beheading death of a co-worker, has been found competent to stand trial.
COURT CLOSING: After nearly a century, the division of the Creek County District Court in Drumright will be closing.
FIRING SQUAD UPHELD: A federal judge has ruled that Utah’s use of the firing squad for executions is not cruel and unusual punishment.
COLEMAN RECOGNIZED: Attorney Tony Coleman, who is representing the woman accused of driving her car into the crowd at the homecoming event at Oklahoma State University, is recognized in the media as being the first African-American to win the Clarence Darrow Award from the OCDLA back in June of this year.
The bubonic plague is back, infecting an Oregon teenager via a flea bite; a Lawton man was arrested for leaving “porn crumbs” around the city in what he described as a statement against rape; ice chest thief put on ice.
THURSDAY, NOVEMBER 12 & FRIDAY, NOVEMBER 13, 2015: The sixth annual Barry Albert Memorial Mock Trial: Learning from the Oklahoma Criminal Jury Trial Masters, will take place in mid-November, this year in the moot courtroom at the Oklahoma City University School of Law.
FRIDAY, DECEMBER 11, 2015: The Criminal Law Hodgepodge XXVI will take place at the Tulsa County Bar Association. The moderators will be Paul Brunton and Shena Burgess. The seminar is good for 6 hours of CLE (including one hour of ethics). For more information contact Paul Brunton at 918.599.8600 or firstname.lastname@example.org.
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