OCDW 03.06.17

 

(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State v. Martin Stites, No. S-2016-163 (Okl.Cr., February 28, 2017) (unpublished): State Appeals: This is a child sexual abuse prosecution out of Pittsburg County where the Hon. Matthew Sheets, Special Judge, granted a demurrer in part, dismissing count one and amending one count to Lewd Molestation. The State appealed, which was affirmed by Associate District Judge Dennis Shook, who affirmed, and in this final appeal, the OCCA affirmed. NOTE: On a point of procedure, Judge Shook failed to issue his decision within 20 days of the filing of the State’s application to appeal (required by statute), but the Court held this was not cause for dismissal (the ruling was issued 24-days after).

State v. Z.N., JS-2016-1062 (Okl.Cr., March 3, 2017) (unpublished): Juveniles & Y.O.: Youthful Offender case out of Oklahoma County (the Hon. Geary L. Walke, Special Judge, presiding) where the youth was accused of First Degree Burglary at age 16 years and seven months old. Judge Walke granted the youth’s motion for certification as a juvenile, and in this opinion the Court affirmed.

Rodney Dale Justus v. State, No. F-2016-87 (Okl.Cr., March 1, 2017) (unpublished): Jurors: Justus was convicted by jury in Pawnee County (the Hon. Jefferson D. Sellers, presiding) of two counts of First Degree Manslaughter, Possession of CDS (Marijuana), and Driving Left of Center, and sentenced to 25 years on the Manslaughter counts, consecutively. The Court affirmed, but addressed an issue of a state correctional officer serving as a juror (statutorily prohibited). Justus argued that this was structural error, but the Court rejected this argument.

Charles Langham v. State, No. CRF-1986-6674 (Okla. Co., February 16, 2017): Post-Conviction: Federal Public Defender Barry Derryberry returned to his old state-court haunts recently, filed a post-conviction application and obtained an agreed Order signed by Judge Ray C. Elliott (Oklahoma County) suspending a 10-year sentence for a federal client who had suffered a series of unfortunate events that had prevented him from serving the original 10-year sentence.

 

 

United States v. Mark Anthony Wireman, No. 15-3291 (10^th Cir., February 28, 2017) (Published) (Tymkovich, C.J., McKay & Baldock): Federal Sentencing Guidelines (Reasonableness); Standard of Review: Wireman argued that his sentence was procedurally unreasonable because the district court did not specifically address his argument that the Guideline under which he was sentenced was flawed on policy grounds. The panel rejected this argument, and his request for a downward variance. NOTE: Judge McKay concurred in the judgment, but agreed that the district court erred by failing to explain why it rejected the non-frivolous argument advanced by Wireman. Also, plain error review was had because, although Wireman presented a memorandum for a downward variance to the district court, he failed to object contemporaneously to the lack of explanation.

United States v. Steven Michael John, No. 15-2178 (10^th Cir., February 27, 2017) (Published) (Hartz, Murphy & Holmes): Confrontation and Cross-Examination; Jury Instructions (Lesser-Included): Sex assault convictions are affirmed over claims relating to: 1) denial of cross-examination of victim; jury instructions regarding assessment of the evidence; and 3) refusal to instruct on lesser-included offenses.

United States v. Adrienne Lopez, No. 15-3130 (10^th Cir., February 27, 2017) (Published) (Kelly, Hartz & Matheson): Search and Seizure (Traffic Stops): Although the initial stop was valid, there was no reasonable suspicion for continued detention for the officer to obtain a drug dog, thus denial of motion to suppress is reversed. Nice win.

United States v. Miguel Bustamenat-Conchas, No. 15-2025 (10^th Cir., March 3, 2017) (Published) (en banc): Allocution: This is a 7-4 en banc opinion clarifying the standards of review in cases where the accused is denied the right of allocution prior to 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.

 

 

United States v. Geremy Atkins, No. 16-5531 (6^th Cir., December 13, 2016): Peremptory Challenges: Conviction for felon in possession of a firearm is reversed on a Batson claim.

United States v. Jimmy Jail Abernathy, No. 16-5314 (6^th Cir., December 8, 2016): Search and Seizure (Trash Pull): Search warrant insufficient when based upon trash pull evidence of marijuana roaches and T2-laced plastic bags. NOTE: This was a split opinion; also, good faith under Leon did not apply because there was also a Franks violation.

Robert L. Tatum v. Brian Foster, No. 14-3343 (7^th Cir., January 31, 2017): Pro Se Representation: Habeas relief is granted in a homicide case out of Wisconsin when the state courts refused to honor Tatum’s request to represent himself.

 

 

None reported.

 

 

DEPUTIZATION REFUSAL: The Pontotoc County Sheriff has refused to cross-deputize officers from the town of Stonewall, citing no confidence.

MONOPOLY: CoreCivic (formerly Corrections Corporation of America) is consolidating its hold on private incarceration in Oklahoma by trying to acquire halfway houses.

ANOTHER MACY: Brett Macy, son of former Oklahoma County District Attorney Bob Macy, has announced that he will run for Sheriff. Also, acting Sheriff P.D. Taylor of Oklahoma County has announced his plans for new policy directions.

FAKE ID: Minors using fake IDs in Tulsa have gotten so good at creating them that federal authorities have taken notice.    

RIP: A young Craig County deputy has died in a car crash.

HOW IT WORKS: OKPolicy.org conducted a podcast with Jill Webb of the Tulsa County Public Defender’s Officer on how the criminal justice system works.

DOC BUDGET: DOC Director Joe Allbaugh makes the case for a big DOC budget; also, the DOC backlog is hovering around 1,400.

AMNESTY: Pittsburg County is offering amnesty for folks with outstanding warrants and court costs, a way to deal with them without arrest.

RECUSAL DENIED: Judge Nikki G. Leach has denied a motion by District Attorney Brian Hermanson to recuse in a sex abuse case involving a local math teacher.

CLOSE CALL: Students at Broken Arrow schools were fortunate when police realized they did not have real guns.

FIRED: The Colbert Police Chief has been fired; also, a Piedmont police officer has been fired for a sex scandal of some sort.

VESTS: Bryan County has equipped paramedics with bullet-proof vests.

OSBI: The story behind OSBI Director Stan Florence resigning, and then un-resigning, apparently involves complaints by OSBI employees.

RAPE?: A food service manager at Jess Dunn Correctional Facility caught having consensual sex with an inmate has been charged with assault with intent to commit a felony. It seems odd that a food service manager could be charged with a crime under these circumstances.

HONORED: Chad Moyer has been honored as Police Officer of the Year by the Tulsa Rotary Club.

 

WACKY CRIME

MOAT WAS THE CASE THAT THEY GAVE HIM: An Oklahoma City man was arrested for several unusual crimes involving exotic animals after officials discovered a moat that he had built for his reptiles.

LEFT BEHIND: A little bit more sad than wacky, a Tulsa man ran from officers who were investigating a burglary…and left his eight-year-old son behind.

OOPS!: A defendant in Cherokee County got in trouble when he dropped a “glass pipe” with residue on the courtroom floor.

DOESN’T PAY: A man who went to the trouble to break into a café in Tulsa got away with a cash register…which was empty.

SUDS: A thief in Tulsa likes his beer…stealing about $6,000.00 worth of it over a two month period.

LIKE THE MOVIES: A bar brawl in Lawton ended when someone was thrown through a window.

DARWIN: A man stole a bunch of guns form an Oklahoma Undersheriff…and left his cell phone behind.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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