OCDW 08.08.16



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).




Kenneth Ray Friday v. State, 2016 OK CR 16 (August 3, 2016): Supervised Release (State Cases): This is a revocation case out of Tulsa County (the Hon. Deborrah Ludi Leitch, Special Judge, presiding) where the Court held that post-imprisonment supervision is part of the original sentence, and not something that can be tacked on to revocation of a suspended sentence.

State v. Michael Wayne Tubby and Rusty Lloyd Wooten, 2016 OK CR 17 (August 3, 2016): State Appeals; Jury Instructions (Lesser Included): Tubby and Wooten were charged with Murder in the First Degree (Felony Murder) in Cleveland County (the Hon. Lori Walkley, presiding). Jury trial was held, at which the accused requested an instruction on Accessory to First Degree Felony Murder as a lesser offense. Judge Walkley gave the instruction, over objection of the State, and the jury convicted both of the crime of Accessory (acquitting them of First Degree Felony Murder), and neither appealed. In this appeal, the State pursued a reserved question of law whether Accessory to First Degree Felony Murder is a legally recognized included offense of First Degree Felony Murder. In this opinion, the Court was “unable to determine whether Accessory to First Degree Felony Murder was a legally recognized lesser included offense because the State failed to designate the portions of the trial transcript need to decide the issue (the crimes that the trial evidence tends to prove must be analyzed), and also because the State failed to include any record of the judgment and sentence or its notice of appeal. Thus, the Court simply dismissed the appeal without deciding the issue because it will always be a fact-intensive inquiry. NOTE: The prosecutors were Jennifer Austin and Christy Miller. Also, I wonder why the Court chose to publish this case. Embarrassing assistant district attorneys who mess up appeals by doing it themselves is always fun, I suppose, but this case breaks no new legal ground as far as I can tell, and appears to serve very little purpose as a published opinion.

Ashley Reed Pullen v. State, 2016 OK CR 18 (August 4, 2016): Hearsay (Excided Utterance): Pullen was convicted by jury in Tulsa County (the Hon. William J. Musseman, presiding) of First Degree Rape by Narcotic or Anesthetic Agent. Pullen raised issues regarding sufficiency and the introduction of prior “bad acts” (no objection, so plain error review), but the Court found error in the admission of evidence in the form of a statement by the complaining witness to another person that she had been raped, a statement made 12 hours after the alleged rape. The trial court admitted this statement as an “excited utterance” exception to the hearsay rule, but the Court held that this was error, but harmless.

State v. Oleithia June Cudjo, No. S-2015-25 (Okl.Cr., August 5, 2016) (unpublished): DUI (Blood Draw); State Appeals: This is a State appeal out of Oklahoma County involving a DUI traffic fatality that was charged as Second Degree Murder. The Hon. Jerry D. Bass suppressed the results of a blood test prior to trial on the strength of a SCOTUS decision, Missouri v. McNeely, 569 U.S. _, 133 S.Ct. 1552, 185 L.Ed.2d 698 (2013), which appears to invalidate the warrantless draw of blood under state statute. However, in this opinion, the Court reversed the suppression grant, holding that McNeely does not invalidate Oklahoma statutes on this topic. NOTE: The Court stated that this was an issue of first impression, but for some reason did not publish the opinion. Also, Judges Lumpkin and Hudson penned lengthy opinions concurring in the result, but dissenting to the analysis of the majority.




United States v. Walter E. Ackerman, No. 14-3265 (10th Cir., August 5, 2016) (Published) (Hartz, Gorsuch & Phillips): Search and Seizure (State Actor); Child Porn: This is an intriguing case involving an allegation of possession of child porn when AOL used automated filters to flag images and then notified the National Center for Missing and Exploited Children, per federal law, which examined the images, identified Ackerman as the potential owner of the account, and then notified local law enforcement. The issue here is whether the NCMEC is a private entity (thus no Fourth Amendment violation as a private entity), and if it is not, did it enlarge the scope of the AOL investigation. In this opinion, the panel held that the NCMEC is a government actor for search and seizure purposes; and, that it did enlarge the scope of the AOL investigation, thus the suppression denial is reversed.




“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.




United States v. Corey Jones, No. 15-1518-cr (2nd Cir., July 21, 2016): Federal Sentencing Guidelines (Crime of Violence): A conviction for first-degree robbery in New York is not in every instance a crime of violence in light of Johnson v. United States, 559 U.S. 133 (2010).

United States v. Chet Lee West, No. 15-3026 (8th Cir., July 22, 2016): Supervised Release: In this tax evasion case, special conditions of supervised release are vacated that impinge upon use of the internet and computers.

United States v. Henry Brandon Williams, No. 13-3019 (D.C. Cir., July 8, 2016): Experts; Witnesses (Lay Opinion); Search and Seizure (Wire Taps): Drug convictions are reversed because of improper admission of lay opinion testimony from FBI Agent involved in the underlying investigation concerning his interpretations of audio and video recordings, and it was not harmless. NOTE: The opinion also contains a good discussion of challenges to wiretap applications, although the court found no error.




DOUG PARR, OKC, represented two environmental activists charged with disorderly conduct during a protest at Devon Energy. Judge Phillipa James found the pair not guilty. Nice job, Doug!




CITY ATTORNEY RESIGNS: The city attorney for the City of Hartshorne has resigned amid his suspension resulting from a squabble with the city council.

GOFORTH HONORED: The Chief Detective for the Ottawa County Sheriff’s Office, Holli Goforth, has been honored as the best county employee for 2016.

SELF-SUSPENSION: Embattled Love County Sheriff Marion Joe Russell, arrested for several seedy allegations of malfeasance in office, has suspended himself from further duties as Sheriff. Also, his attorney, Gary Brown, has requested a gag order from Judge Wallace Coppedge, who granted it.

JUSTICE TO RETIRE: Oklahoma Supreme Court Justice Steven Taylor has announced that he will retire from the bench at the end of the year.

PHONE WOES: DOC is investigating an allegation that an inmate at Dick Conner Correctional Center was using face-time and posting it on Facebook. On the bright side, a change in the state license tags will mean more work for the license tag shop at the prison.

INSANITY DEFENSE: Public radio continued its piece on the verdict of “guilty but mentally ill” and here is PART III.

CHUTZPAH: Missouri law allows the Chief Public Defender to appoint members of the Bar to indigent cases. The link goes to a letter from the Chief Public Defender to the Governor of the State of Missouri, explaining to the Governor that since funding for public defenders has been slashed, private attorneys must be appointed, and the first appointment is Gov. Jay Nixon, who is the Governor of the State, but also a member of the Bar. Nice.

REFORM: The Garfield County Sheriff sees problems with some criminal justice reforms.

NO EXECUTIONS: The Oklahoma Attorney General has announced that the State will not seek any executions in 2016 in the wake of new execution protocols and the grand jury investigation into the botched recent executions.

OFFICE PUSH: District Judge Leah Edwards has pushed for a local probation office in Pauls Valley.

HERMANSON HONORED: The Oklahoma District Attorney’s Council has named Brian T. Hermanson the District Attorney of the Year.

NEW JUSTICE CENTER: The Family Justice Center, which will assist victims of domestic violence access resources, will open in Oklahoma City in about a year.

FCC REGS: The FCC has capped the usurious collect call rates in prisons and jails.

MARIJUANA PETITION: The effort to change state law regarding medical marijuana was underway during the last few weeks, including some harassment of the folks spearheading the effort.

ODD ENDORSEMENT: The Lost Ogle questions the endorsement of Paul Blair for state Senate by District Attorney David Prater.

ENID DUPED: The City of Enid has been victimized by a fraudulent scheme which has cost thousands of dollars.

DOC LAWSUIT: District Judge Joe Heaton has ruled in favor of the Warden of Mabel Basset Correctional Center in a lawsuit alleging responsibility for sex crimes at the prison.



DOUBLE-DOWN: An inmate accused of aggravated assault and battery against another inmate at Cimarron Correctional Facility in Cushing had been charged again, this time for assaulting a jailer at the county jail.

POOL HALL PUTSCH: A pool hall altercation in Lawton resulted in an angry man throwing billiard balls, hitting a woman in the nose. Ouch.

ROADSIDE PUTSCH: A couple in Bartlesville were arrested for a domestic dispute that saw them throwing rocks at each other on the side of the road.

CRIMINAL MASTERMIND: When police told a Broken Arrow man that he was under arrest for First-Degree Burglary, he tried to negotiate using legal skills acquired from somewhere, telling police, “shouldn’t it be grand larceny since I just went into the garage?” No. No, it shouldn’t.

SMH: A woman in Tahlequah arrested for meth possession has requested to bond out so she does not miss her job interview for a teaching position.

POLAR BEAR: Law enforcement officials rushed to the Jones Airport to seize a mounted polar bear.

STARRY NIGHT: A drunk guy in Tulsa showed police the moon when asked to empty his pockets.




AUGUST 11, 2016, at NOON: The Oklahoma County Criminal Defense Lawyers Association will host its weekly luncheon and one-hour CLE with speaker and trial attorney Joi McClendon on the topic of overcoming confessions. The presentation starts at 11:30 a.m. with lunch, followed by the talk at the Norick Library, Fourth Floor, downtown OKC. RSVP with Billy Coyle or Jean at 405.232.1988.



SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164th St., Edmond, OK 73013.


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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