OCDW 07.11.16

 

(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).

 

 

 

Brian Christopher Cripps v. State, 2016 OK CR 14 (June 30, 2016): DUI (Blood Draw); Experts: Cripps was convicted by jury in Tulsa County (the Hon. Jefferson D. Sellers, presiding) of Manslaughter in the Second Degree (Automobile). Affirmed over his claims relating to: 1) admission of expert testimony from the State’s accident reconstruction witness; 2) and admission of blood alcohol content, which was obtained through the implied consent law when Cripps was unconscious. NOTE: The issue regarding the blood draw is still live because recent SCOTUS authority cast doubt upon the resolution of this claim by the OCCA. Note also that Judges Lumpkin and Hudson penned spirited separate opinions.

 

 

United States v. Ivan Bennett Willis, No. 15-6102 (10^th Cir., June 21, 2016) (Published) (Briscoe, Lucero & McHugh) (W.D. Okla., Hon. Robin J. Cauthron): After-Formers (Federal); Juvenile Records; Custodial Statements; Rape Shield; Cumulative Error: In this sexual assault case that occurred in Indian country, the conviction is affirmed over claims relating to: 1) admission of other crimes evidence consisting of two prior sexual assaults; 2) use by the Government of juvenile records that should have been expunged under tribal law, but were not; 3) admission of custodial statements (right to counsel was waived); 4) exclusion of prior sexual behavior of the complaining witness; 5) improper vouching; and 6) cumulative error. NOTE: Regarding the other crimes evidence, a pre-trial hearing was held at which testimony was given, but the witnesses testified differently at trial. The Circuit invoked a rule that it would consider only the pre-trial testimony in evaluating the claim.

United States v. Robert Lee Holloway, No. 14-4164 (10^th Cir., June 20, 2016) (Published) (Tymkovich, C.J., Seymour & Lucero): Counsel of Choice; Victim Impact; Confrontation and Cross-Examination: Convictions for wire fraud and false tac returns are affirmed over claims related to: 1) denial of counsel of choice (re-framed as a garden-variety IAC claim instead); 2) improper victim impact testimony; 3) denial of confrontation and cross-examination in not being able to question witnesses about default judgments against them; and 4) improper enhancement for more than 250 victims (no objection to the PSR, so waived).

Bigler Jobe Stouffer, II, v. Kevin Duckworth, No. 14-6211 (10^th Cir., June 17, 2016) (Published) (Lucero, O’Brien & Matheson) (W.D. Okla., Robin J. Cauthron): Jurors: In this Oklahoma death penalty case, the matter was remanded to the district for an evidentiary hearing on a claim of jury tampering (the husband of one of the jurors). In this opinion, after the remand, the panel affirmed.

 

 

“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).

 

Robert F. McDonnell v. United States, No. 15-474 (U.S., June 27, 2016): Statutory Construction (Honest Services; “Official Acts”): In this “honest services” fraud case involving former Virginia Governor Robert McDonnell and his wife, the Court reversed the convictions because the Government failed to prove that the Gov. performed “official acts” in exchange for bribes (arranging meetings, hosting events, and contacting other government officials do not count).

Stephen L. Voisine v. United States, No. 14-10154 (U.S., June 27, 2016): Possession (Firearm): Misdemeanor domestic violence convictions that do not require knowing or intentional assault, but merely reckless assault, still qualify as a crime of domestic violence under 922(g) such that the person cannot possess a firearm.

 

 

Curtis T. Ellison v. Dushan Zatecky, No. 15-1884 (7^th Cir., April 19, 2016): Prison Discipline: District Court order denying 2254 relief is vacated where the prison hearing officer did not allow Zatecky to present evidence in his behalf about possessing drugs in his cell.

United States v. Lonnie Whitaker, No. 14-3290 (7^th Cir., April 12, 2016): Search and Seizure (Drug Dogs; Good Faith): Acting on a tip, police obtained permission from a property manager of an apartment and ran a drug dog around a shared hallway, and the dog alerted to a specific door. Police then secured a search warrant. The panel held that, pursuant to the recent SCOTUS decision in Jardines (no drug dog sniffs at houses), the search was illegal; and also the subsequent warrant was not saved by good faith.

United States v. Harold Delonte Castle, No. 14-3073 (D.C. Cir., June 14, 2016): Search and Seizure (Reasonable Suspicion): Police were on patrol in an unmarked pickup truck in D.C. and saw Castle walking quickly away from the direction of an apartment complex outside of which it was known that PCP was sold. In this split opinion, the panel held that police lacked reasonable suspicion to seize Castle.

 

 

ERIC EDWARDS, Enid, scored a nice win in Blaine County in a Manslaughter (DUI) case before Judge Woodward who granted a motion to quash based upon denial of speedy trial and spoliation (the black boxes in the cars). Nice work, Eric!

JOHN D. RUSSELL, Tulsa, & ALLEN M. SMALLWOOD, Tulsa, won a nifty case out of Rogers County when the client was charged in 2005, but the State made no effort to arrest her for seven years, and a total of ten years after the alleged criminal conduct. John and Allen filed this terrific motion to dismiss and brief in support based upon speedy trial and due process (two witnesses had died during the delay). In this Order, Judge H. Michael Claver denied the speedy trial claim, but dismissed with prejudice based upon delay by the State. Great lawyering, John and Allen!

 

 

TEXT SUICIDE?: A teenage girl in Massachusetts must stand trial on a Manslaughter charge for encouraging her boyfriend through texts to kill himself. She pressed her case to the state supreme court which allowed the prosecution. This seems really odd to me that a criminal case can proceed when only words via text were used and someone commits suicide.

ROLLING STONE v. U.VA: Interesting article about a Rolling Stone reporter who investigated an alleged gang rape at a fraternity, but the more she investigated, the more she disbelieved the complaining witness. The paper apparently ran the story anyway, and the University of Virginia has launched a defamation lawsuit.

POLITICS: Rhetoric in the presidential race here in the U.S. is nothing compared to statements made by Philippines President Rodrigo Duterte, who continues to urge people to “go ahead and kill” drug traffickers and drug addicts in the country.

OSCN COMPLETE: The Oklahoma State Courts Network (not the Oklahoma Supreme Court Network) includes all 77 counties now (Cimarron County was the last holdout).

DEATH ROW BACKLOG: Jemaine Monteil Cannon became the eighth death row inmate in Oklahoma eligible for execution once the State works out a reliable, constitutional method.

OFFICER ARRESTED: A Tulsa police officer has been arrested for pawning his police-issued firearms.

DANGEROUS OKLAHOMA: Oklahoma has been ranked as the second-most dangerous state in which to live (behind Mississippi).

NEW SHERIFF: Voters in Wagoner County have elected Chris Elliott as the new Sheriff; also, voters in Pittsburg County have elected Chris Morris as the new Sheriff; in Cleveland County, Sheriff Joe Lester won a resounding victory, but the Court Clerk race will go to a runoff; in Beckham County, the election was won by Derek Manning; in Kay County, Steve Kelley was elected as the new Sheriff.

NEW COURT CLERK: Janelle Sharp has been elected Court Clerk in Garfield County.

CHAPPELLE HONORED: The late Judge Carlos J. Chappelle has been honored by having a courtroom (Courtroom 605) named in his honor at the Tulsa County Courthouse.

DEPUTY ACCUSED: A deputy in Carter County has resigned amid accusations that he had a sexual relationship with a female inmate.

RETIRED: Court reporter Jimsye Boman out of Bryan County has retired after 42 years!

CHIEF SHOT: The Chief of Police in Cache was shot last week, but her bullet proof vest worked to save her life. Suspects are still at large.

 

WACKY CRIME

ANGRY OLD MAN: Another AOM was arrested for shooting at a passing car in Chickasha.

ANGRY OLD MAN II: This one attacked a car in Lawton with an ax.

LOST: A woman who got lost in the woods in southeast Oklahoma (near Jackfork) was found after police “pinged” her cell phone, but alas she possessed what appeared to be meth when found.

 

 

FALL 2016 OKLAHOMA FORENSIC SCIENCE ACADEMY: The Academy consists of eight sessions beginning August 18, 2016, but the deadline to apply is FRIDAY, July 15, 2016.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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