OCDW 06.06.16



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).




Lewis v. City of Oklahoma City, 2016 OK CR 12 (May 31, 2016): Guilty Pleas; Municipalities: Lewis entered a nolo plea in the municipal court of Oklahoma City to speeding, but contested the authority of the City prescribe a penalty in excess that prescribed by state statute ($10.00 vs. the $84.00 he was assessed by the City). He defended on the ground that the municipal authority was in conflict with state law, but this claim was rejected by the OCCA.

Hamilton v. State, 2016 OK CR 13 (June 1, 2016): Child Porn: Hamilton was convicted by jury in Tulsa County (the Hon. William D. LaFortune, presiding) of Distribution of Child Pornography and Aggravated Possession of Child Pornography. In this opinion, Hamilton argued that the evidence was insufficient to convict, and also that multiple images on a single computer hard drive should be considered a single unit of contraband. The Court rejected both of these claims. NOTE: As to what constitutes a prosecutable unit of contraband, the Court has held previously that 100 counts of simple possession was impermissible when it was found on several storage devices, in Brown v. State, 2008 OK CR 3, 177 P.3d 577. In footnote 2, the Court observed that the Legislature enacted the Aggravated Possession of Child Porn statute in response to Brown. Thus, it appears that the State is now free to treat each individual image toward the count of 100 to reach a charge of Aggravated Possession.

In Re Adoption of 2016 Revisions to Oklahoma Uniform Jury Instructions—Criminal, 2016 OK CR 11 (June 1, 2016): Jury Instructions: In this Order, the Court adopted changes to the jury instructions regarding Assault and Battery on Police Officers, Sexual Abuse of Children, Rape in the Second Degree, Forcible Sodomy, Sexual Battery, the Insanity Defense, instruction on Eyewitness Identification, and Jailhouse Informants.




No new cases.




“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).


Deborah K. Johnson, Warden v. Donna Kay Lee, No. 15-789 (U.S., May 31, 2016) (per curiam): Habeas Corpus (Procedural Default): In this summary reversal of the Ninth Circuit, the Court held that the procedural rule in California that a litigant must raise an issue on direct appeal or it is waived on collateral review, is adequate.

Shawn Patrick Lynch v. Arizona, No. 15-8366 (U.S., May 31, 2016) (per curiam): Death Penalty (Continuing Threat): In capital cases, the Court had fashioned a rule that when “future dangerousness” is alleged as an aggravating circumstance for death, and life without parole is the only other option, then the accused must be allowed to inform the jury about parole ineligibility. In this opinion, the Arizona Supreme Court for some odd reason simply ruled that Lynch had no right to inform his jury of parole ineligibility. Reversed.




United States v. Jonathan Bohannon, No. 14-4679-cr (2nd Cir., May 31, 2016): Search Warrants (Arrest Warrants); Arrest: This is a case where police had a valid arrest warrant, but executed it at the home of a third-party without having a valid search warrant for that home. This issue deals with conflicting law regarding police needing a warrant to enter a home, but having a warrant to arrest a person who might be in a home. In this opinion, the panel held, in line with eight other circuits, that whether the subject of an arrest warrant is apprehended at his home or a third-party residence where he is a guest, his Fourth Amendment rights are those stated in Payton v. New York, 445 U.S. 573 (1980), meaning that at the time of entry, arresting officers must possess: 1) a valid arrest warrant for the subject; and 2) reason to believe that the subject is then in the premises. Here, the district court concluded that there was insufficient reason to believe that the subject was inside the premises, but the panel disagreed and vacated the suppression order. I included this opinion because it contains an extensive treatment of the current law on this topic.

United States v. Thomas Jefferson Kent, No. 14-2082-cr (2nd Cir., May 16, 2016): Federal Sentencing Guidelines (Leader and/or Organizer): Sentence on a guilty plea is vacated and remanded where the district court erred in imposing a leader or organizer enhancement.

United States v. Zackary Robert Lull, No. 15-4216 (4th Cir., May 25, 2016): Search and Seizure (Search Warrants; Franks v. Delaware): Denial of a suppression order is reversed based on Franks where the affidavit in support of a search warrant omitted material information about the reliability of the confidential informant.

Anthony Wayne Mangum v. S. Hallembaek, Warden, No. 15-6134 (4th Cir., May 25, 2016): Concurrent and Consecutive Sentences: Interesting opinion where Mangum sought habeas relief under 2241 to compel BOP to calculate his sentence correctly where he had overlapping state and federal sentences, and he requested to serve his federal sentence in a state court (Oklahoma) prison. The BOP of course denied the request, but in this opinion the panel reversed, holding that the BOP engaged in an improper analysis by imposing a presumption that silence by a sentencing judge meant consecutive sentences.




None noted.




SHERIFF ARRESTED: The Carter County Sheriff (Ardmore), Milton Anthony, has been arrested for bribery. The “bribery” appears to be related somehow to an arrangement between a female employee and the Sheriff to trade sexual favors in return for employment of her husband.

DEPUTY FIRED: Captain Jeff Gragg of the Wagoner County Sheriff’s Office has been released.

PAWNING GUNS: Interesting article about how easy it is to pawn a gun in Oklahoma, but not so easy to get it back.

SECURITY UPDATE: Security will be beefed up at the Grady County Courthouse in Chickasha.

SHERIFF RESIGNS: Kiowa County Sheriff Bill Lancaster announced his resignation last week.

CRIME RATE UP: The OSBI reports that violent crime has increased by three percent.

OKLAHOMA COUNTY JAIL: The Oklahoman ran an article about the overcrowding problems at the Oklahoma County Jail. Meanwhile, Oklahoma County District Judge Ray C. Elliott took proactive steps to combat the problem, by coordinating with the Jail to sentence inmates receiving probation.

CRANKY OLD MAN II: Last week it was a COM with a slingshot; this week, it is a COM with a crossbow.

CONTRABAND DROP: The regularity of arrests for lobbing contraband into prison yards remains constant, this time at James Crabtree Correctional Center in Helena (again).

DOC INMATE MOVE: Inmates currently at Oklahoma State Reformatory at Granite, will be moved to the new facility in Sayre.

DIFFICULT DECISION: Judge Sid Brown recalls a difficult decision he made back in 1989 regarding whether to treat a 15-year-old as an adult offender.

DERELICTION OF DUTY: A police supervisor and a firearms instructor at the Muskogee Police Department allegedly got drunk at a firing range and left a car with guns in it unlocked overnight.

STAND YOUR GROUND: Interesting article from the Tulsa World about the rights and responsibilities of gun owners.




BB GUN v. GUN GUN: You know which one wins.

CRAIGSLIST: Note to self: if you steal a car, do not post it on Craigslist.

BURGLED: Note to self: if you burgle a house, do not take the prescription drugs you found there and then pass out in a closet.

“FAILED CRIMES”: Funny crime story to two hapless thieves who try to steal a trailer…and it goes wrong from there.

I AM A COP: An alleged “drugged driver” rammed another car—on the basis that he was a police officer, and had been instructed to do so by a “police angel.”

KEISTERED: An inmate at James Crabtree Correctional Center was caught with a Trafficking amount of meth, you know where.




THURSDAY, JUNE 23 & FRIDAY, JUNE 24, 2016: The 2016 Patrick A. Williams Criminal Defense Institute & OCDLA Annual Meeting will take place at the Hard Rock Hotel & Casino in Catoosa (Tulsa).



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