OCDW 05.22.17



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).


COUNTY NO. 4: BEAVER COUNTY: This one is located in the Oklahoma panhandle with the county seat the same name, derived from the Beaver River and its many beaver dams in the area. The total population is 5,636. I have never ventured to the panhandle, so this makes me 2-out-of-4 in the county courthouse race.




Tony Preciliand Overton v. State, No. F-2015-1107 (Okl.Cr., May 11, 2017) (unpublished): Jurors; Confrontation and Cross-Examination; Cumulative Error: This is a first degree murder, burglary, and robbery case out of Oklahoma County (the Hon. Don Deason, presiding) in which the Court found error in the trial court refusing to disqualify a potential juror for actual bias; and also in the testimony of a police detective testifying about DNA findings from reports that he did not prepare. However, both of these errors were harmless. NOTE: Judges Smith and Hudson dissented on the basis of cumulative error. Also, Judge Lumpkin dissented, in part, to the analysis used by the majority on whether the juror was “unacceptable” to the defense.

State v. Jason Alexander Giddings, No. S-2016-517 (Okl.Cr., May 18, 2017) (unpublished): State Appeals; Confidential Informants; Search and Seizure (Search Warrants; Sufficiency): Giddings was charged with Trafficking in Tulsa County, and the Hon. James M. Caputo granted a motion to suppress based upon the participation of an “unwitting confidential informant” that compromised a controlled buy. In this State appeal, the Court reversed, holding that the totality of the circumstances established PC. NOTE: This opinion contains a good discussion of the legal standards governing this issue.




United States v. Kappelle Simpson-El, No. 16-3107 (10th Cir., May 17, 2017) (Published) (Lucero and Bacharach): Restitution: The defendant obtained a settlement against the Government in a tort case, and the district court applied most of those funds toward restitution in a prior criminal action. 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).

No new cases.




Sarah Weeden v. Deborah K. Johnson, No. 14-17366 (9th Cir., April 21, 2017): IAC: Denial of habeas relief is reversed in the case of a 14-year-old girl who was involved in a robbery indirectly when trial counsel decided to not pursue a psychological expert.

United States v. Guadalupe Velazquez, No. 14-10311 (9th Cir., May 1, 2017): Substitute Counsel; Guilty Pleas: Guilty pleas vacated because the trial court refused the request of the accused for substitute counsel.

United States v. Jason Daniel Sims, No. 16-1233 (8th Cir., April 27, 2017): Federal Sentencing Guidelines (Violent Felony): Sentence under the ACCA is vacated because prior convictions in Arkansas for residential burglary do not count as “violent felonies.”




SHANNON McMURRAY, Tulsa, scored a huge win in Tulsa when the jury acquitted Tulsa Police Officer Betty Shelby of manslaughter in the high-profile case that caught national attention because it involved a white police officer shooting and killing an unarmed black man. A juror stated after the verdict that they jury agreed that Shelby should never be a patrol officer again; but, she walked out of the courtroom a free woman. Terrific work, Shannon!

DANIEL GIRALDI, OIDS, represented a low-IQ defendant charged with Murder in the First Degree and Robbery. The jury acquitted on the murder county, but convicted on the robbery and accessory. Not a walk-free victory, but these are the types of cases that allow clients the chance at freedom with life still to live and are always hard-fought. Nice work, Daniel!

BRIAN BOEHEIM and CIERA FREEMAN, Tulsa County PD, secured a rare not guilty by reason of insanity verdict in a child abuse case for a client accused of intentionally dropping her 3-week-old child. Sounds like a good result in a very difficult case. Good job, Brian and Ciera!

R. JAY COOK, Muskogee, secured suppression of evidence from a warrantless and unconstitutional search and seizure from the home of his clients which resulted in dismissal of the case. District Judge Thomas Alford agreed with Cook that police should have obtained a warrant, and any consent was not voluntary because police had their guns drawn. Terrific work, Jay!

MISTRIAL: A jury in Altus deadlocked in a murder case last week, resulting in a mis-trial. Defense attorney Robert McMahan fought the good fight. Any time the client emerges from a jury trial without a conviction is a good day in court. Nice work, Robert!




JUDGE SMITH RETIRING: Judge Clancy Smith of the Oklahoma Court of Criminal Appeals has announced her retirement effective June 1, 2017.

APPOINTED: Gov. Fallin has appointed Kory Kirkland as District Judge in Grady and Caddo Counties.

CHIEF RESIGNS: The Police Chief in Colbert has resigned after only three days on the job.

PAROLED: An inmate in DOC was paroled after serving 23 years of a life sentence. The link goes to a nice article about the case.

BIG BUST: Police in Sequoyah County found more than 260 pounds of marijuana in a traffic stop.

SELF-DEFENSE UPDATE: Gov. Fallin signed into law a tweak to the law of self-defense that allows citizens to draw and point guns at persons to deter felonious conduct (thus, allowing the act of pointing a weapon but not firing it, which would otherwise be a crime).

LOBBER: An Enid man was arrested of lobbing contraband over the fence at James Crabtree Correctional Center.

INJURED: Five employees at the prison in Cushing were injured in an altercation with inmates.

BONDSMAN BUSTED: A local bondsman in Sequoyah County has been arrested on drug charges.

CLEARED: Oklahoma County District Attorney David Prater has cleared two policemen of an officer-involved use of deadly force back in March.



THE RECORD?: A Chickasha man arrested for a string of auto burglaries admitted to burglarizing five cars…in just one hour.

ROLLING: Two thieves caught on video try to steal a truck…only to see it roll away.

STARTING EARLY: Police in Choctaw were led on a high-speed car chase that reached speeds in excess of 100 mph after a truck back into a police cruiser and then took off during a traffic stop…it turns out the suspect was a 14-year-old boy.




THURSDAY, JUNE 29th and FRIDAY, JUNE 30th, 2017: 2017 PATRICK A. WILLIAMS CRIMINAL DEFENSE INSTITUTE will take place in Oklahoma City at the Reed Center located at the Sheraton Hotel. The link goes to registration info and more info about the venue.



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.

COPYRIGHT STATEMENT & DISCLAIMER: ©2005-2017 by James L. Hankins. All rights reserved. OCDW hereby grants free use of these materials for any non-commercial purpose provided that proper credit to the OCDW is given. In the event that copyrighted works are included in an edition of the OCDW such works may not be reproduced without the consent of the copyright holder because under federal law the OCDW has no authority to allow the reproduction of the intellectual property of others. For purposes that go beyond “fair use” of the copyrighted material under federal law, the permission of the copyright holder must be obtained. If you are a copyright holder and object to any portion of an issue of the OCDW, please contact the publisher, James L. Hankins, at the contact information above (located under the SUBSCRIPTIONS AND SUBMISSIONS section). Finally, the materials presented in this newsletter are for informational purposes only, and are not, nor intended to be, legal advice or to create an attorney-client relationship. You should consult an experienced attorney licensed in your jurisdiction for legal advice applicable to the specific facts of your case. Cases are summarized in each weekly issue as they are issued and filed by the respective court, and are thus subject to being withdrawn, corrected, vacated, and/or modified or reversed without notice. Always conduct your own research!


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