OCDW 03.14.16



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).




Lewallen v. State, 2016 OK CR 4 (March 11, 2016): Child Neglect; Statutory Construction: In this Child Neglect case out of Tulsa County (the Hon. Mark Barcus, presiding), Lewallen was charged after two or more felonies. The jury was instructed that the punishment range was 20-life. The Court held that this was error (4-life is correct). This is so because construction of 21 O.S. 51.1, and 57 O.S. 571 dictate that Child Neglect is not listed. NOTE: Judges Johnson and Smith dissented.

Martinez v. State, 2016 OK CR 3 (March 8, 2016): Death Penalty; Spoliation; Sufficiency; Gruesome Photos; Hearsay: In this capital case out of Comanche County, the convictions and death sentences are affirmed over claims relating to: 1) spoliation of blood evidence by failing to take a blood sample from Martinez that would have supported an intoxication defense (no objection at trial, so no plain error); 2) sufficiency of the evidence; 3) irrelevant evidence of a blood test; 4) admission of a photo of the victims in life as a couple, gruesome photos; 5) the introduction of hearsay (startling statement; medical examiner report); 6) prosecutorial misconduct; 7) use of racial epithets used by the defendant introduced at sentencing; 8) improper victim impact statements; 9) HAC aggravator is overbroad; 10) trial court and prosecutor defined reasonable doubt; 11) IAC in several respects; and 12) cumulative error.

DeCarlos Marquis Latham v. State, No. RE-2015-180 (Okl.Cr., March 8, 2016) (unpublished): Suspended Sentences: Latham was charged with two counts of first degree rape in Oklahoma County (the Hon. Cindy H. Truong, presiding), and entered pleas of guilty. He was given a probated sentence. The State thereafter filed a motion to revoke, alleging new crimes (felon in possession of a firearm out of Michigan). The State presented uncertified copies “documents from the State of Michigan titled ‘Assignment to Youthful Trainee Status’ and ‘Order of Probation’ and several attachments to those documents” as well as testimony from a DA investigator about an NCIC report. The State confessed error, and the Court agreed, holding that there was no proof that the Michigan conviction was final. NOTE: This opinion contains a good discussion of the methods available to the State to prove allegations of new crimes in revocation proceedings.




United States v. Mario Humberto Llantada, No. 15-2082 (10th Cir., March 8, 2016) (Published) (Tymkovich, C.J., Lucero & Holmes): Supervised Release: In the recent Munoz decision, the Circuit considered 12 conditions of supervised release and the mode of analysis. In this opinion, the panel applies Munoz, and also addresses some of the other standard rules and conditions and how to interpret them using the “common sense” approach from Munoz. The panel upheld the rules and conditions.

United States v. Keith Michael Courtney, No. 15-2015 (10th Cir., March 11, 2016) (Published) (Kelly, Briscoe & Hartz): Jury Nullification; Forfeiture (Criminal): In this wire fraud case, the panel found error in a criminal forfeiture order and agreed with Courtney that the forfeited amounts must be reduced by the amount lenders received through mortgage payments and sales (i.e., the actual loss), but affirmed the denial of Courtney’s efforts to inform the jury of its right to nullify the conviction no matter what the law or evidence is.

United States v. Ralph Gene Carloss, No. 13-7082 (10th Cir., March 11, 2016) (Published) (Tymkovich, C.J., Ebel & Gorsuch) (E.D. Okla., the Hon. Ronald A. White): Search and Seizure (Knock and Talk): This is an epic series of opinions on a knock-and-talk suppression issue, the rub of which is that the homeowner here had “No Trespassing” signs posted all over his house. No matter, the police went up and knocked anyway. The panel affirmed the denial of the motion to suppress (I think Judge White is probably allergic to taking any path that does not give the Government what it wants), but Chief Judge Tymkovich penned a concurring opinion, and Judge Gorsuch, one of the most imaginative and creative jurists on the court today, dissented in an opinion that is a must-read (as most of his opinions are).




“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).


Michael Wearry v. Burl Cain, Warden, No. 14-10008 (U.S., March 7, 2016) (per curiam): Prosecutorial Misconduct (Brady Material): The Court grants relief on a Brady claim in a death penalty case where the State of Louisiana withheld evidence relating to: 1) undisclosed police records indicating that inmates had cast doubt on the credibility of a State witness; 2) the fact that another state witness sought a deal; and 3) medical records of a state witness that would have impeached his credibility. NOTE: Justice Alito and Justice Thomas dissented.

Lockhart v. United States, No. 14-8358 (U.S., March 1, 2016): Federal Sentencing Guidelines (2252(b)(2) Child Porn Enhancement); Statutory Construction: Lockhart pled guilty to possession of child porn, but his sentence was enhanced to a 10-year minimum via a state court conviction prior “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Since the prior involved his adult girlfriend, Lockhart argued that the enhancement did not apply to him. The Court disagreed, construing the statute to encompass conduct with adults. NOTE: Justice Kagan and Justice Breyer dissented.




United States v. James Wendell Brown, No. 13-3062 (D.C. Cir., December 15, 2015): Federal Sentencing Guidelines (Reasonableness): In this distribution of child porn case, Brown was sentenced to 144 months, which was in excess of the high end of the Guidelines range. In this opinion, the panel held that the explanation by the district court of the above-the-Guidelines sentence was inadequate (no explanation why the district court found Brown’s conduct more harmful or egregious than that typically falling within the Guidelines range).

Ace Patterson v. Secretary, Florida Department of Corrections, No. 12-12653 (11th Cir., January 29, 2016): Habeas Corpus (Second/Successive): Patterson successfully attacked is sentence of chemical castration in state court, and the state courts amended his sentence accordingly. Patterson then filed a second petition for habeas corpus under 2254, contending that it should be considered a first petition because it attacks the new (amended) judgment and sentence in his case. In this opinion, the panel agreed, and held that this petition is not second or successive.

Johnny Overstreet, Jr., v. Warden, No. 13-14995 (11th Cir., January 27, 2016): IAC: In this habeas corpus case out of Georgia, the panel held that appellate counsel rendered IAC in failing to argue that the evidence was insufficient to support a conviction for kidnapping.

DeLawrence King v. Donald Morgan, Warden, No. 13-4189 (6th Cir., December 1, 2015): Habeas Corpus (Second/Successive): Much like the Patterson case out of the Eleventh Circuit, above, this case deals with when a habeas petition is “successive” when a prisoner receives sentencing relief. It is settled that the prisoner may challenge a new sentence; but may he challenge again the underlying conviction? The panel held that the answer was yes (thus, the second or successive requirements are not triggered).

David Eugene Matthews v. Randy White, Warden, No. 13-5901 (6th Cir., November 10, 2015): Clemency: In this death penalty case out of Kentucky, Matthews exhausted in judicial remedies and sought clemency from the Governor. He sought funds from the federal government to secure a neuropsychologist in this effort. The district court denied funding, but the panel reversed.




MIKE WOMBLE, Clinton, took over a conflict case out of Beckham County for OIDS, and on a short preparation deadline of two weeks, tried the hell out of a drug case that had a controlled buy, a video recording of the transaction, and a disruptive client. The jury was out an hour and forty-five minutes: not guilty. Way to go, Mike!


In this odd case, prosecutors had to drop charges against a man in El Reno charged with selling ceremonial guns from the American Legion because the military simply did not provide paperwork to show ownership of the guns.




O.J. REDUX: In the wake of the new movie about the O.J. Simpson case, prosecutor Marcia Clark reflects on some aspects of the prosecution and how she felt during the trial, such as the jury being disconnected from her case, and a sense that the verdict was not justice. I couldn’t help but think that defense lawyers feel those things all the time.

JUDGE TRUMP: I am talking about the older sister of The Donald, the Hon. Maryanne Trump Barry, Senior Judge for the Third Circuit Court of Appeals, who was nominated by President Reagan to the federal bench in 1983, and then by President Clinton in 1999 to the Court of Appeals. Who knew?

WAMPLER RETIRES: District Attorney John Wampler (Jackson, Greer, Harmon, Kiowa, and Tillman Counties) has announced his retirement.

DOC SPOTLIGHT: Nice article that details some of the methods employed by DOC to deal with youthful, non-violent offenders at the Bill Johnson Correctional Center in Alva.

JUDICIAL NOMINATIONS: The nomination of judicial candidates in Pottawatomie County has spawned an Attorney General opinion, and direction from Gov. Fallin to the Judicial Nominating Committee to review the process. The problem seems to stem from the fact that the JNC sent two names to the Governor, rather than the three required.


A 14-year-old clad in a Captain America hoodie tried to rob a Starbucks in Tulsa—he failed; an ex-con sough some payback against a prison guard at McAlester by assaulting the guard at a restaurant—and was promptly arrested; thieves in Tulsa made off with a haul of loot from a house, including the front door.




FRIDAY, MARCH 25, 2016: The 11th Annual Oklahoma Forensics Academy will take place at the Moore-Norman Technology Conference Center, 13301 S. Pennsylvania, Oklahoma City, OK, and will be good for 7 CLE credits (includes 30 minutes of ethics).



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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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