OCDW 04.04.16

 

(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).

 

 

State v. Reba J. Vincent, 2016 OK CR 7 (March 23, 2016): Child Neglect; State Appeals: At PH, the State presented evidence that Vincent was driving a vehicle while intoxicated, and that passengers included an adult male along with his infant child, who was unrelated to Vincent. Applying precedent, the magistrate and the district court sustained the demurrer on the basis that Vincent was not related to or responsible for the child. In this opinion, the Court reversed, holding that its prior case law had been abrogated by subsequent legislative amendments to the Child Neglect statutes.

Phillip Paul Morrison v. State, No. F-2015-302 (Okl.Cr., April 1, 2016) (unpublished): Trial Procedure (Forensic Interviews); Privileges (Invocation by Witness): Morrison was convicted by a jury in Washington County (the Hon. Curtis L. DeLapp, presiding) of several sex offenses, and sentenced to LWOP. A forensic interview was introduced at trial, and during deliberations the jury asked to view it. This type of evidence is treated specially, and the trial judge has to make findings so as not to emphasize it. This was error, but deemed harmless. Also, a witness called by the defense was charged with a crime related to the case and refused to testify. Counsel moved to declare her unavailable so that her PH testimony could be read to the jury. The trial court granted this request, but told the jury that the reason why the transcript was being read because the witness invoked the privilege. This was error because the jury should not be told that a witness has invoked a privilege, but no objection was made at trial, so there was no plain error. NOTE: Judge Lumpkin and Judge Hudson concurred in the result, and clarified their understanding of the standard used regarding the introduction of recorded statements.

Michael Joseph Sauter v. State, No. F-2015-155 (Okl.Cr., March 31, 2016) (unpublished): Sufficiency: Sauter was convicted by jury in Nowata County (the Hon. Curtis L. DeLapp, presiding) of Robbery and Burglary. The evidence consisted of accomplice testimony, and the fact that Sauter’s car was involved. Amazingly, the Court found, by a 3-2 vote, that this was insufficient as a matter of law, and reversed with instructions to dismiss(!!) NOTE: Judge Hudson filed a dissent, which was joined by Judge Lumpkin.

Jeffery Tallon v. State, No. F-2014-931 (Okl.Cr., March 29, 2016) (unpublished): After-Formers (Enhancement): Tallon was convicted by jury in Tulsa County (the Hon. James M. Caputo, presiding) of Rape by Instrumentation and Aggravated Assault and Battery, after former conviction, and was sentenced to Life and 10 years. Although the Court affirmed his convictions, error was found in the admission of a California conviction for “Battery on Cohabitor” because the State presented no other evidence of the nature of the crime. NOTE: This opinion (I do not know why it is unpublished), contains a good discussion of the requirements necessary to substantiate prior convictions.

Brandon Gerald Thomas v. State, No. F-2015-201 (Okl.Cr., March 23, 2016) (unpublished): Jury Instructions (Tax Stamp): Thomas was convicted by jury in Tulsa County (the Hon. James M. Caputo, presiding) of Trafficking (Meth), and Possession of CDS w/o Tax Stamp, for which he was sentenced to 8 years and 2 years. The Court affirmed, but noted that there is no uniform instruction for the crime of No Tax Stamp and found a lack of scienter instruction harmless in this case. NOTE: Interesting discussion of the elements of the crime. The issue is whether “knowingly or intentionally” was an element, and the Court intimated that it is, but keep this case in your pocket in case you need to argue the elements in the future.

Robert Leroy Gore v. State, No. F-2015-212 (Okl.Cr., March 24, 2016) (unpublished): Waiver (Jury Trial): Gore was convicted at a bench trial of Larceny of an Automobile (AFCF x 2), and KCSP in Pottawatomie County (the Hon. John G. Canavan, Jr., presiding). Reversed because there was no record of a valid waiver of the right to a jury trial.

Seth Harvey Speed v. State, No. F-2015-35 (Okl.Cr., March 22, 2016) (unpublished): Trafficking: Speed was convicted by jury of Conspiracy to Traffic (Meth) (AFCF x 2) in Oklahoma County (the Hon. Timothy R. Henderson, presiding), and sentenced to LWOP. The Court affirmed, but I included the opinion because it contains a good discussion of the punishment for Trafficking in light of the 2015 changes made by the Legislature (no more mandatory LWOP), and specifically that the new punishment ranges are prospective only.

State v. Christopher Daniel Welch, No. S-2015-568 (Okl.Cr., March 23, 2016) (unpublished): Possession (Firearm by Felon); State Appeals: Welch was charged with Possession of a Firearm (AFCF) in Carter County. At PH, Welch demurred to the evidence on the basis that the air pistol did not come within the ambit of 21 O.S. 1283. Special Judge Carson M. Brooks sustained the demurrer. The State appealed to the district court, and the Hon. D. Clay Mowdy affirmed. In this State appeal, the Court affirmed again, finding no abuse of discretion. NOTE: Likely driving the opinion was the standard of review, which is an abuse of discretion. The statute prohibits possession of an “imitation pistol” and I could see where an air pistol might quality, but the judges in this case said no. Also significant here is that this case appears to recognize that Sims v. State, 1988 OK CR 193, may have been abrogated by subsequent legislative enactments. Finally, Judges Lumpkin and Johnson did not participate, so this was a 3-0 opinion.

State v. R.Z.M., No. JS-2015-1076 (Okl.Cr., March 24, 2016) (unpublished): State Appeals; Statutory Construction (Forcible Oral Sodomy): R.Z.M. was charged as a Youthful Offender in Tulsa County with Rape and Forcible Oral Sodomy. The Hon. Patrick Pickerill granted a pre-trial motion to dismiss the Sodomy count on the basis that Forcible Oral Sodomy cannot occur where the victim is so intoxicated as to be unconscious at the time of the sexual act. The Court affirmed. NOTE: This is a significant construction of the sodomy statute, which is worded differently than the rape statute, which allows prosecution for sex with an unconscious person. It is a mystery why this case is not published.

 

SELF DEFENSE: The link goes to an article that I authored in the recent Bar Journal dealing with the law of self-defense. The focus is on an unpublished case from last year that changes some of the rules, and establishes some procedural rules, governing the assertion of immunity under the Stand Your Ground Law. If you have a self-defense case, this article will be useful because you have to assert immunity pre-trial, and pursue an interlocutory appeal if it is denied.

 

 

United States v. Ismael Cobian Mendoza, No. 15-7042 (10^th Cir., March 25, 2016) (Published) (Kelly, Briscoe & Hartz) (E.D. Okla., Hon. Ronald A. White): Search and Seizure (Traffic Stops; Consent): In this traffic stop case, police found drugs in two ice chests. Mendoza moved to suppress on the basis that his consent was invalid, the search exceeded the scope, and that the search and destruction of the second chest was unlawful because officers did not have probable cause. The district court denied the motion, and in this opinion the panel affirmed.

United States v. Adan Humberto Dominguez-Rodriguez, No. 15-2100 (10^th Cir., March 31, 2016) (Published) (Tymkovich, C.J., Briscoe & Matheson): Federal Sentencing Guidelines (Drug Trafficking Offense): In this illegal re-entry case, the Government sought a sixteen level enhancement because the accused had been deported previously after having been convicted of a federal drug crime. The district court refused, construing the Guidelines as mandating the enhancement, and the Government appealed. The issue is whether, under Guidelines § 2L1.2(b)(1)(A)(1), a federal offense of possession of a CDS is a “drug trafficking crime.” The panel held that it does.

Steven D. Bonney v. Eddie Wilson, Warden, No. 15-8010 (10^th Cir., March 29, 2016) (Published) (Gorsuch, Bacharach & McHugh): Habeas Corpus (Procedural Default): Instructive opinion out of Wyoming where Bonney entered a guilty plea in state court to sex offenses. In this opinion, the panel held that the procedural default rule mandating that a defendant raise IAC on direct appeal has not been adequately applied by the Wyoming courts. Thus, the reliance on procedural default by the federal district court was error, and the panel remanded for consideration of the merits of the claim.

 

 

“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).

 

Jaime Caetano v. Massachusetts, No. 14-10078 (U.S., March 21, 2016) (per curiam): Second Amendment: The Supreme Court of Massachusetts upheld a law that banned the possession of stun guns. In this opinion, the Court summarily reversed, holding that such a ruling was inconsistent with Heller.

Nebraska, et al., v. Colorado, No. 144, Orig. (U.S., March 21, 2016): This is the case where Oklahoma and Nebraska sued Colorado over its marijuana law, and the Court denied those states leave to file a bill of complaint, or as one wag phrased it on the Findlaw SCOTUS blog, High Court Puffs, Puffs, Passes on Interstate Marijuana Suit…(hehe, get it)? NOTE: Justices Thomas and Alito dissented, wanting to explore the Court’s jurisdiction in such cases.

Luis v. United States, No. 14-419 (U.S., March 30, 2016): Counsel of Choice: Federal law allows the Government to freeze assets in certain banking and healthcare fraud cases, including assets untainted by the alleged crimes. In this case, the district court allowed the Government to freeze assets despite the fact that it included untainted assets that Luis needed to hire counsel of choice. The Eleventh Circuit affirmed, but in these fractured opinions the Court reversed. NOTE: Justice Thomas provided the fifth vote in concurrence with a 4-Justice plurality to reverse. Justices Alito, Kennedy, and Kagan dissented.

 

SPLIT DECISION: With the death of Justice Antonin Scalia, the Court has only eight Justices, which could result in a tie vote. Such a thing is likely, given the ideological split on the Court, and it did not take long for it to happen. In a case involving a question of discriminatory lending practices in the banking industry, the Court issued a one-sentence per curiam
opinion: “The judgment is affirmed by an equally divided Court.”

 

 

United States v. James J. Bulger, No. 13-2447 (1^st Cir., March 4, 2016): Immunity: In this epic, 49-page opinion, the First Circuit affirms the convictions of James J. “Whitey” Bulger, the Boston mobster who was the subject of the excellent movie “Black Mass” starring Johnny Depp (and I am not even that much of a fan of Depp, but he really sold himself in that role; it was a masterclass of acting in my opinion). Bulger raised several claims, including a claim that he was granted immunity as a Government snitch decades ago. The immunity discussion is very instructive, including when it should be raised (pre-trial with a judge or with a jury? The answer is pre-trial with a judge). The basic problem for Bulger was that he had no documentation of an immunity agreement, and the prosecutor who allegedly gave him immunity had died, so the Government got the boss of that deceased prosecutor to draft an affidavit saying that there was no immunity, and even if there was the prosecutor was without authority to grant it. Bulger raised other claims regarding deals with witnesses, and prosecutorial misconduct, but these were rejected as well.

 

 

JASON MAY, Ardmore, did an outstanding job in the unpublished Welch case, featured above, where the State charged his client with unlawful possession of an air pistol. Jason defended at PH and won there, then won again before the district court, and then finally won a third time in the OCCA. Terrific advocacy, Jason!

WINSTON CONNOR, II, Miami, secured a dismissal at PH in an interesting case where the client was charged with murder stemming from an incident where he gave pills to his mother and she overdosed. Winston argued a lack of proximate causation. The State announced intent to appeal, so this legal issue may be developed further, but for now this is a terrific result for Winston and the client. Nice work, Winston!

LARRY ROBERSON, Sapulpa, secured a not guilty verdict in a jury trial recently for a client charged with felony embezzlement. The jury was out just 30 minutes. Good job, Larry!

SARAH KENNEDY, Perry, won a jury trial in Payne County for a client charged with felony child abuse. Great job, Sarah!

 

 

TEXAS EXECUTION: The State of Texas executed another inmate last week. Adam Ward was put to death last Tuesday, the fifth execution in Texas this year.

FOUND: A woman missing from Indiana since 1974 has been found alive and well in Texas. Appears that she could not handle motherhood and just up and left. I find this story interesting because I had an appeal here in Oklahoma where a husband was convicted in a “no-body” murder case of his wife where the defense was that she just decided to leave.

FORMER OFFICER SENTENCED: A former Oklahoma City police officer was given a deferred sentence for pointing a firearm at another.

CRIMEFIGHTER: An Edmond man has set up a web site to fight crime using video and internet capabilities, which he calls “crowd source crime solving.”

SHERIFF INDICTED: A grand jury has indicted Wagoner County Sheriff Bob Colbert on an accusation of receiving a bribe after a traffic stop.

TOWN HALL: Interim DOC Director Joe Allbaugh will participate in a public discussion on April 12 on the challenges facing DOC.

CLERK TO RETIRE: Tulsa County Court Clerk Sally Howe Smith will retire after 24 years.

CLERK TO RETIRE II: McClain County Court Clerk Lynda Baker will also retire after 24 years.

JUDGE JONES RETIRES: Special District Judge Larry Jones (Oklahoma County) will retire after being eased out by the district judges.

OFFICER PLEADS TO DUI: A Tulsa Police Officer has pled guilty to DUI and received a deferred sentence.

OFFICER ARRESTED: Another Tulsa Police Officer has been arrested for unauthorized use of a credit card.

DEATH PENALTY NEWS: A state grand jury has resumed its investigation into Oklahoma’s botched executions. Also, former Gov. Brad Henry will lead an expert panel that will examine death penalty procedures.

GOOD PROGRAM: Gov. Fallin recently toured a central Oklahoma Habitat for Humanity program that uses inmate labor to build houses.

JAILER ARRESTED: A jailer in Pontotoc County has been charged with a rape count for having sex with a female inmate.

DARBY SWORN IN: New District Attorney Ken Darby (Jackson County) was sworn in by district judge Richard Darby.

 

WACKY CRIME

Late Rental: a Concord, Oklahoma, man has been arrested for failing to return a VHS tape (yes, you heard that correctly, a VHS tape) of the terrible movie “Freddy Got Fingered”—as in failing to return it for the last 14 years late(!). The store where he rented it is defunct, but the law churns on. Makes me wonder if I have any overdue library books from back in the day.

Domestic: Only this one involves an arrest of a woman, who beat a man…with a shovel.

Prostitution Ring: A Lawton man has been accused of trying to operate a prostitution ring—from jail.

Sad Case: A sister who wanted to rob her brother started a chain of events that ended in his death—over $16.

Hiding Place: A woman fugitive was found at a home in Stephens County—curled up inside a foosball table.

Drone Killed: A company that was hired to clean the gutters of a woman’s home in Oklahoma City used a drone to fly over the property and document the gutters—which was shot down by a neighbor.

 

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