OCDW 10.31.16

 

(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).

 

 

Christopher Moss v. Oklahoma Department of Corrections, 2016 OK CR 23 (October 26, 2016): Jurisdiction (Appellate); Concurrent/Consecutive Sentences; Sentence Modification: This case involves a prisoner with multiple convictions and sentences from different counties, one of which was modified pursuant to 22 O.S. 982a, and ordered to run concurrently with a sentence out of Tulsa. DOC refused to implement the change, Moss pursuant administrative remedies and lost, and then lost in the district court of Oklahoma County. In this opinion, the Court granted mandamus and ordered the district court in Oklahoma County to direct DOC to implement the new concurrent sentences. NOTE: The procedural posture of this case involves a civil case seeking to order DOC to administer sentences in a specific way (concurrently in multiple counties). The case went to the Oklahoma Supreme Court first, but that Court transferred the matter to the OCCA, holding that the OCCA had exclusive jurisdiction in such cases.

David Earl Flowers v. State, 2016 OK CR 22 (October 20, 2016): DNA: This is a case out of Comanche County where the Hon. Gerald F. Neuwirth denied a post-conviction application seeking DNA testing on the basis that Flowers had not raised this issue in a previous post-conviction application (i.e., it was barred). In an odd retreat, the Court held by a 3-2 vote that this application was not barred because it was the first time Flowers had raised this issue. NOTE: Judges Lewis and Lumpkin dissented.

Walter Lacurtis Jones v. State, No. F-2015-561 (Okl.Cr., October 19, 2016) (unpublished): Assault and Battery; Sufficiency: Jones was tried at a bench trial before the Hon. Ken J. Graham in Stephens County for Feloniously Pointing a Firearm, Possession of a Firearm AFCF, and A&B w/Dangerous Weapon. The weapon used was an inoperable Ruger revolver, which was not a per se dangerous weapon, and it was not made dangerous by the manner it was used (nudging another person in the forehead knocking off his hat). Since it was not used or intended to inflict great bodily injury or death, the evidence was insufficient. Reversed with instructions to dismiss. NOTE: The conviction for feloniously pointing a firearm was affirmed, even though the revolver was not operable, because it was designed to discharge a projectile under the statute; same with the count of possession of a firearm by a felon—imitation or inoperable guns count.

State v. Bobby J. Floyd, Sr., and Justin Hendren, No. S-2015-1036 (Okl.Cr., October 21, 2016) (unpublished): State Appeals; Sufficiency (Burglary in the Second Degree): Judges Rebecca Gore, Special Judge, and Hon. Robert G. Haney (Craig County) presided over a Second Degree Burglary and Obstructing case which was kicked at PH on the basis that the State had only proven misdemeanor breaking and entering (no evidence of intent to steal). The Court analyzed the evidence and concluded that the evidence to steal was sufficient, and reversed. NOTE: In an unexpected twist, Judges Lumpkin and Johnson dissented on the basis that the majority had conduct de novo review, rather than review for an abuse of discretion. The abuse of discretion standard should be very difficult to meet in these state appeals, but the Court does seem to routinely review such cases de novo.

Shannon James Kepler v. District Court, No. PR-2016-939 (Okl.Cr., October 18, 2016) (unpublished): Discovery: Nice opinion granting a petition for a writ of prohibition in a Tulsa murder case where the district judge had ordered the defense to produce discovery related to interviews conducted by the defense with persons not listed as witnesses.

 

 

United States v. Emanuel Godinez-Perez, No. 15-3159 (10^th Cir., October 24, 2016) (Published) (Tymkovich, C.J., Briscoe & Murphy): Federal Sentencing Guidelines (Relevant Conduct): The district court failed to make particularized findings regarding relevant conduct attributable to Godinez in this drug conspiracy case. Sentence vacated and remanded for re-sentencing.

United States v. Leslie Chapman, Nos. 15-2143 & 15-2173 (10^th Cir., October 24, 2016) (Published) (Tymkovich, C.J., Ebel & Lucero): Domestic Abuse; Witnesses: Domestic assault conviction is affirmed over a claim relating to the use by the Government of SANE nurse testimony on the subject of domestic violence victims harming themselves as a coping mechanism.

United States v. Manuel Maldonado-Palma, No. 15-2146 (10^th Cir., October 25, 2016) (Published) (Matheson, Seymour & Bacharach): Federal Sentencing Guidelines (Crime of Violence): A charge of aggravated assault under New Mexico law is a crime of violence.

United States v. Frank Sharron Piper, III, No. 15-3288 (10^th Cir., October 25, 2016) (Published) (Kelly, Hartz & Matheson): Federal Sentencing Guidelines (Sentence Modification): The district court denied a motion for sentence reduction based upon retroactive application of drug guidelines, and the panel affirmed.

United States v. Tremale Odale Henry, No. 15-6181 (10^th Cir., October 25, 2016) (Published) (Gorsuch, Baldock & Phillips) (W.D. Okla., Hon. Stephen Friot): Supervised Release; Confrontation/Cross-Examination: The district court relied improperly upon hearsay evidence at a hearing on revocation of supervised release. Remanded for re-sentencing.

 

 

“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.

 

 

MISTY FIELDS, Tulsa, scored a 12-minute jury verdict of acquittal in a felony child abuse case out of Mayes County last week. Great job, Misty!

CLEVELAND COUNTY: A jury in Cleveland County hung in a case of a clerk at a head shop charged with selling bongs and paraphernalia.

 

 

SHERIFF JOE CHARGED: Long-time Arizona sheriff Joe Arpaio has been charged with criminal contempt for ignoring a judge’s order.

PRISON DEATH: Amber Hilberling, a woman convicted of pushing her husband through the window of their 25^th floor apartment, has hanged herself in prison.

NORMAN P.D.: Interesting article on the 40-year history of the SWAT team for the Norman Police Department, which has neither killed anyone nor even fired a shot in all that time. Head shops, on the other hand, are being dealt with severely.

BACA: Interesting article about how the group Bikers Against Child Abuse operates.

NO BOND: District Attorney David Prater is asking for a Brill hearing for a man charged with his seventh DUI.

NURSE CHARGED: A nurse has been charged with rape for allegedly having sexual relations with an inmate.

JURY FIELD TRIP: A jury in Oklahoma County viewed the scene in a murder prosecution.

TESTIMONY: Tommy Adler, OKC, received a nice legal ruling by Judge Stephen Kistler in Payne County regarding testimony from a counselor to explain the client’s changing story.

FELON FACTORY: Interesting article about the incarceration rate in Oklahoma and how state questions on the ballot might impact the situation.

 

WACKY CRIME

 

BUMP’EM: A man in Tulsa sat in his “unmoving vehicle” at an intersection, and when confronted by cops he made an obscene gesture, backed out, rammed the police car behind his, and took off.

STEAL’EM: Another man in Tulsa jumped behind the wheel of a Tulsa P.D. patrol car and took off—along with the handcuffed DUI arrestee in the back seat.

DIG: Authorities in Rogers County used a backhoe to dig up property buried by a thief.

BURN IT UP: A Cushing man got rid of his wife’s car—by setting fire to it in the backyard.

ROBBER ATTIRE: A man who robbed a bank in Norman was caught on camera wearing a funny t-shirt.

TOOTH PROBLEM: A man with a “tooth problem” thought it would be a good idea to strip down naked outside of OHP headquarters in Tulsa.

GYMNASTS: A female inmate with gymnastic skills slipped her cuffs and tried to escape, but was thwarted by a jailer using his gymnastic skills.

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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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