OCDW 03.27.17



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).




Robert Wayne Grayson, Jr., v. State, No. M-2015-934 (Okl.Cr., March 21, 2017) (unpublished): Continuance: In this DUI case out of Washington County, the conviction was affirmed over a couple of claims, one of which related to the denial of a motion for a continuance. I included this opinion because it is a good reminder of the requirements of a continuance, namely that it must be supported by an affidavit; and failure to attach an affidavit, or a request for more time to prepare an affidavit, is fatal.

Scott Allen Bolden v. State, No. F-2015-1112 (Okl.Cr., March 24, 2017) (unpublished): Prosecutorial Misconduct; Shaken Baby Syndrome; Motion in Limine: Bolden was convicted by jury in Tulsa County (the Hon. William D. LaFortune, presiding) of First Degree Murder and Child Abuse by Injury. This is a long opinion for one that is not published, and although the Court denied relief, several issues were discussed, including several instances of prosecutorial misconduct (comment on expert witness fee, lack of remorse, vouching, speculation, courtroom theatrics, appealing to emotions), the introduction of Shaken Baby Syndrome evidence, and a claim based on the denial of cross-examination. NOTE: One claim centered around the theatrics of the prosecutor (Sarah McAmis), which was supported with another unpublished opinion where she did the same thing. The Court was not swayed, and refused to consider the prior case in the absence of a strong record in this one. Thus, the Court seems to have little interest in reigning in this particular prosecutor. Only Judge Smith noted the problem in a concurring opinion, refusing to condone the conduct in this case, but finding that the theatrics did not contribute to the verdict. Also, counsel argued a motion in limine regarding cross-examination of the mother regarding a prior history of her shaking the baby, which the trial court denied. However, counsel failed to attempt the cross-examination that was forbidden by the motion in limine, thus waiving the issue. I rarely, if ever, use motions in limine because the appellate courts treat them as worthless rulings. You still have to attempt whatever you are trying to do at trial in order to preserve the record.




Keighton Budder v. Mike Addison, Warden, No. 16-6088 (10th Cir., March 21, 2017) (Published) (Briscoe, Matheson & Phillips) (W.D. Okla., the Hon. Joe Heaton): Juveniles; Excessive Sentence: Budder was convicted in Oklahoma of several violent, but non-homicide, crimes when he was 16-years-old and sentenced to multiple life sentences running consecutively, resulting in a situation where he must serve 131 years in prison before being eligible for parole. The panel reversed the denial of the writ of habeas corpus based upon Graham v. Florida, 560 U.S. 48 (2010), which held that sentencing juvenile offenders who have not committed homicide crimes to life in prison without a meaningful opportunity for release is unconstitutional.

United States v. Daminion T. Titties, No. 15-6236 (10th Cir., March 24, 2017) (Published) (Briscoe, Matheson & Phillips) (W.D. Okla., Hon. David L. Russell): Federal Sentencing Guidelines (ACCA; Crime of Violence): In this felon in possession case, the Government sought enhanced penalties under the ACCA based upon, in part, a prior conviction for feloniously pointing a firearm. In this split opinion, the panel held that this crime is not a “violent felony” under the ACCA. NOTE: Judge Phillips dissented, and would apply the “modified categorical approach” and would hold that this prior offense is a “violent felony” under the ACCA. Keep a watch on this case, it appears to be a good candidate for en banc treatment.




“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.




Donald R. Phillips v. Randy L. White, Warden, No. 15-5629 (6th Cir., March 15, 2017): IAC; Habeas Corpus (AEDPA Deference): Phillips was tried in a capital case, but the jury recommended LWOP. In this habeas case, he alleged IAC when counsel failed to mount a defense during the sentencing phase, which was presumed prejudice under Cronic resulting in resentencing. Also, the state courts did not address the claim, thus no AEDPA deference.

Andrew Lee Thomas, Jr. v. Bruce Westbrooks, Warden, No. 15-5399 (6th Cir., February 24, 2017): Prosecutorial Misconduct (Brady Cases): Tennessee capital case vacated and writ granted when the prosecutor suppressed evidence that the key witness was paid $750.00 by the FBI prior to trial. NOTE: Judge Siler dissented, finding no prejudice.

United States v. Jay Littlewind, Sr., No. 16-1380 (8th Cir., February 27, 2017) (per curiam) (unpublished): Experts: In this federal case dealing with a charge of sexual abuse of a minor, Littlewind argued that the testimony of the forensic interviewer was improper as irrelevant and unfairly prejudicial. The panel majority found no reversible error, but I included this case because Judge Kelly dissented, finding that the testimony was more prejudicial than probative.




KEITH PATTERSON, OIDS-Sapulpa Division, secured a not guilty verdict last week in Creek County (State v. Keenan Cooper, No. CF-2016-388), in a case where the client was charged with placing bodily fluids on a police officer. Max Cook, the D.A., tried the case for the State and the trial was presided over by the Hon. Joe Sam Vassar. Excellent work, Keith!

BILL FOSTER & JP HILL, Oklahoma County P.D., won a not guilty on a Trafficking charge. There are not too many details on this, but that is a spectacular result. Congratulations Bill and JP!

CATHY HAMMERSTEIN & RICHARD HULL, Oklahoma County P.D., tried a tough death penalty case against prosecutors Geiger and Easter in the courtroom of the Hon. Bill Graves, and convinced the jury to impose LWOP rather than the death penalty. Nice work, Cathy and Richard!




PHILLY D.A. INDICTED: The chief prosecutor in Philadelphia has been indicted on corruption charges.

EXECUTIONS: The state of Arkansas has a backlog of executions that it intends to carry out in April—eight in all to be executed in a 10-day period.

APPLICATIONS ACCEPTED: The Judicial Nominating Commission is accepting application for the position of district judge in Comanche County, occasioned by the retirement of the Hon. Mark Smith.

INMATE DIES: Oklahoma death row inmate Jared Williams Jones, convicted of a triple murder in Oklahoma City, was found “unresponsive” in his cell last week and later pronounced dead. Elsewhere, a convicted child molester was also found dead in his cell at a prison in Sayre.

TRUSTEES: The Payne County Jail has extended the trustee program to women. It is mystifying why this is a new thing.

SHORTEY SAGA: State Senator Ralph Shortey (R-Oklahoma City) has been charged with several prostitution counts and has resigned from the Senate. He is represented by Oklahoma City attorney Ed Blau. Oklahoma attorney Michael Brooks-Jimenez has announced that he will run for Shortey’s seat.

DRONES: A drone attempted to deliver contraband at the Lawton Correctional Center, but it was intercepted.



FIRES: Wildfires around Beggs have apparently been caused by “mailbox bombs.”

CANDOR: A man in Alfalfa County involved in a roll-over accident was amazingly candid with the Trooper asking questions about the accident.



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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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