OCDW 06.05.17

 

(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).

 

COUNTY 5: BECKHAM COUNTY: Beckham County is located in western Oklahoma on the Texas panhandle border, and the county seat is Sayre. It was founded the same year as statehood in 1907, and was named after J.C.W. Beckham, the Governor of Kentucky. I have been out that way a few times, although not recently, which brings my county count to 3-out-of-5.

 

 

Baird v. State, 2017 OK CR 16 (June 1, 2017): Double Jeopardy; Court Costs: Baird was tried by jury in Comanche County (the Hon. Gerald Neuwirth, presiding) and convicted of Murder in the First Degree, Unlawful Desecration of a Dead Body, Forging Certificate of Title, and Obtaining Food Stamps by Fraud, and sentenced to LWOP. Affirmed over claims relating to: 1) double jeopardy bar following mis-trial (client who objected to mis-trial is stuck with counsel’s strategic decision); 2) assessment of court costs and fees related to mistrial; 3) denial of self-defense instructions; 4) sufficiency of the evidence; 5) admission of evidence of other weapons in the home; 6) excessive sentence; and 7) cumulative error. NOTE: It appears this opinion was published because the issue of double jeopardy was one of first impression; however, the Court imposed a procedural default because the claim raised on appeal was different than the one raised in the trial court, thus conducted plain error review.

Ashton v. State, 2017 OK CR 15 (June 1, 2017): Privileges; Right to Present a Defense; Jury Instructions (Flight); Prosecutorial Misconduct (Threats to Defense Witnesses; Sympathy; Personal Opinion); IAC: Ashton was convicted by jury in Tulsa County (the Hon. William D. LaFortune, presiding), of Murder in the First Degree (two counts) and Carrying a Weapon Unlawfully, and sentenced to LWOP. Affirmed over claims relating to: 1) right to present a defense when helpful testimony was not admitted because the witness invoked the Fifth; 2) flight instruction (plain error); 3) prosecutorial misconduct of threatening defense witnesses, sympathy, and personal opinion; and 4) IAC. NOTE: The instructive discussion is whether prosecutors informing a witness of the consequences of testifying is interference with defense right to present a defense.

In Re: Retirement of the Honorable Clancy Smith, 2017 OK CR 11 (June 1, 2017): This opinion recognizes the retirement of Judge Clancy Smith, who was appointed to the Court on September 1, 2010.

Pershall v. State, 2017 OK CR 13 (May 31, 2017): Jurisdiction (Appellate): Pershall proceeded pro se to appeal the denial of post-conviction relief in an appeal out-of-time, but unfortunately failed to file a notice of appeal within 10 days. Appeal dismissed. NOTE: This opinion appears to have warranted publication because the Court’s Rule in regular appeals actually says that failure to file the notice is jurisdictional;, but the Rule in post-conviction cases does not say this, although it says that the petitioner must file the notice within 10 days.

Frederick v. State, 2017 OK CR 12 (May 25, 2017): Jurors; Confrontation-Cross; Hearsay; Jury Instructions (Lesser-Included); Continuing Threat; HAC: Capital case out of Oklahoma County (the Hon. Timothy R. Henderson, presiding), affirmed over claims relating to: 1) jury selection; 2) hearsay/confrontation re dying declaration of decedent stating that Frederick was the killer (not testimonial); 3) lack of notice that witnesses would testify as experts (no plain error); 4) lesser-included jury instructions; 5) sufficiency of the evidence; 6) use of prior burglary and juvenile conviction for robbery to support continuing threat aggravator; 7) sufficiency of HAC; 8) several death-penalty related attacks; 9) prosecutorial misconduct; 10) and IAC: NOTE: The analysis of the decedent identifying Frederick prior to death as “non-testimonial” is particularly dubious because it was done at the scene by the police who asked “who did it.” The Court got around Crawford by characterizing the purpose of the question as necessary to enable medical assistance and police assistance to meet an ongoing emergency.

Bosse v. State, 2017 OK CR 10 (May 25, 2017): Death Cases (State Cases); Evidence (Daubert); Prosecutorial Misconduct (Comment on Exercise of Fourth Amendment); Sequestration; Gruesome Photos; Victim Impact; HAC; Evidence (Accreditation of ME); IAC; Cumulative Error: This is a capital murder case out of McClain County that was remanded by the Supreme Court on the issue of victim impact statements. The Court addressed other issues: 1) insufficient Daubert hearing regarding fire origin; 2) prosecutors commenting on Bosse’s refusal to consent to a search (assuming without deciding that this was error, it was harmless); 3) visual aids and exhibits regarding DNA results; 4) violation of sequestration in allowing family members to sit in during trial; 5) gruesome photos (error, but harmless); 6) victim impact when victims allowed to recommend sentence (error but harmless); 7) sufficiency of evidence supporting HAC; 8) accreditation of the Medical Examiner’s Office; 9) prosecutorial misconduct (various); 10) IAC; and 11) cumulative error. NOTE: The discussion about the gruesome photos is very odd. The Court held that the photos were so gruesome that it was error to admit them, even if relevant, because the probative value was outweighed substantially by the risk of unfair prejudice; yet, the Court found no prejudice.

Joel Robert Giefer v. State, No. F-2016-543 (Okl.Cr., May 31, 2017) (unpublished): Prosecutorial Misconduct (Comment on Silence): Giefer was convicted by jury in Tulsa County (the Hon. Sharon K. Holmes, presiding) of Murder in the First Degree and sentenced to LWOP. The Court found error in the State commenting on Giefer’s post-Miranda silence, but found the error harmless.

Derlin Lara v. State, No. C-2016-813 (Okl.Cr., May 25, 2017) (unpublished): Restitution/VCA: Lara entered an Alford plea to First Degree Manslaughter (DUI) and other counts in Mayes County (the Hon. J. Dwayne Steidley, presiding). The Court upheld his pleas, but vacated the VCA amounts because the district court did not support them.

State v. Zachary Richard Lindstrom, No. S-2016-224 (Okl.Cr., June 1, 2017) (unpublished): State Appeals; DUI (Blood Draw): This is a Manslaughter (DUI) case out of Tulsa County (the Hon. William D. LaFortune and the Hon. Sharon K. Holmes, presiding), in which Judge Holms granted a motion to suppress and the State appealed. The suppression issues revolve around the State’s compliance with blood draw rules, and chain of custody. The Court reversed the suppression grant, holding that the State complied.

Jerry Lee McNatt v. State, No. F-2015-1048 (Okl.Cr., May 25, 2017) (unpublished): Jurisdiction (District Court); Preliminary Examination; Waiver (PH): McNatt was convicted by jury in Muskogee County (the Hon. Thomas H. Alford, presiding), of several sex offense counts. The Court affirmed over several claims, but I included it because of an issue regarding plea negotiations that took place after the PH had begun, they fizzled out, but McNatt waived PH and proceeded to DCA. He hired new counsel, who sought to re-open the PH, but was denied. The Court cited the old rule that the district court has no jurisdiction unless a PH is held or waived; and that a plea at the arraignment waives the right to a PH, or if one was held, any irregularities therein. NOTE: Fairly common procedure is to enter a plea at the arraignment and to thereafter file motions. Practitioners need to be aware that entering the plea has consequences in this regard concerning the preliminary hearing and the right to attack the Information.

Carlos James Miera, Jr., v. State, No. RE-2016-282 (Okl.Cr., May 25, 2017) (unpublished): Suspended Sentences; Stays: In this revocation case out of Kay County (the Hon. David A. Bandy, presiding), the Court affirmed, but I included the opinion because the accused raised an issue of being forced to defend the revocation proceeding prior to resolution of the new criminal case, which influenced his right to testify. The Court found no error, and distinguished the cases cited by Miera. NOTE: It is common for clients to be on probation and then be accused of new crimes. This provides a tremendous advantage to the State because of the ridiculously low burden of proof in revocation cases, which means that the client will likely go to jail even if he has a good defense to the new charge at a jury trial. I read this case to say that a trial court may stay the revocation proceeding, but is not obligated to do so.

Vone Phantirath v. State, No. M-2015-1099 (Okl.Cr., May 31, 2017) (unpublished): Guilty Pleas: Phantirath was convicted by jury in Tulsa County (the Hon. Bill Hiddle, presiding) of the misdemeanor offenses of Prostitution and Operating a Place of Prostitution. The jury recommended no jail time, but rather a fine on each count. On appeal, she raised several claims, but the Court found merit in her contention that the trial court erred in refusing to accept her guilty plea to count one. NOTE: This seems to be a simple question of law, whether a trial judge must accept a guilty plea properly tendered, but Judges Lumpkin and Hudson dissented. Thus, there appears to be a 3-2 split on the Court concerning this question of law.

Steven Richard Reaves v. State, No. F-2016-437 (Okl.Cr., May 25, 2017) (unpublished): Trafficking: This is a Trafficking case out Tulsa County (the Hon. William D. LaFortune, presiding), which was affirmed, but it has a good discussion of the proper range of punishment when the accused has multiple priors. In this case, the jury was instructed incorrectly on the range of punishment, but this was harmless.

 

 

United States v. Alexander J. Pauler, No. 16-3070 (10^th Cir., May 23, 2017) (Published) (Briscoe, McKay & Baldock): Possession (Firearm): Pauler was convicted of domestic battery (punching his girlfriend) in the municipal court of Wichita, Kansas. He thereafter possessed a firearm and was prosecuted in federal court for possessing it after having been convicted of a “misdemeanor crime of domestic violence.” The panel held that the municipal conviction does not count, and reversed.

United States v. Ishmael Petty, No. 15-1421 (10^th Cir., May 22, 2017) (Published) (Hartz, Baldock & Holmes): Jury Instructions (Reasonable Doubt): Petty is a violent inmate already serving a life sentence for killing his cellmate, and here appealed additional convictions for assaulting correctional officers. The appeal attacked the pattern jury instruction on reasonable doubt. The panel rejected his claim, holding that the Tenth Circuit pattern jury instruction on reasonable doubt is adequate. NOTE: The pattern instruction has always bothered me, as well, particularly the “firmly convinced” language which does not seem to really capture the burden of proof.

 

 

“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. Alexander Michael Roy, No. 12-15093 (11^th Cir., April 26, 2017) (en banc): Standard of Review: In this sex offense case, trial counsel returned a few minutes late from a lunch break on the third day of a six week trial, and missed a small part of the testimony of the 12^th Government witness. He was out of the courtroom for seven minutes. All parties agree this was error. The question is whether it was structural or amenable to harmless error review. In this sprawling set of opinions, the court held that this error is subject to harmless error review.

United States v. Philip Swaby, No. 15-7616 (4^th Cir., April 24, 2017): IAC: Denial of habeas relief is reversed because defense counsel made an error concerning the immigration consequences of a plea.

Corey Lorenzo Woodfolk v. Gary D. Maynard, Secretary, No. 15-6364 (4^th Cir., May 23, 2017): IAC; Guilty Pleas; Habeas Corpus (SOL & Equitable Tolling: Odd case involving a 30 year old guilty plea where trial counsel represented co-defendants; but the panel remanded for an evidentiary hearing on the IAC claim (conflict) finding that the claim was not time-barred.

 

 

MISTRIAL: A jury in Cherokee County could not reach a decision in a rape case, thus ending the proceedings in a mistrial. Defense counsel Donn Baker and his client live to fight again.

 

 

WAY BACK: The Tulsa World ran an interesting article on the Tulsa race riots of 1921.

A.G. OPINION: The Attorney General opined that a rule requiring the county jails to bear the costs of an inmate sentenced to DOC for a three-day period after sentencing is invalid.

CHARGED: A Sheriff’s deputy in Tulsa County has been charged after showing up to work drunk.

SCHOOL: A new school of cosmetology has opened at Mabel Bassett prison for women.

DEPUTY WARDEN: Chester Mason has been hired as the new Deputy Warden at Jess Dunn Correctional Center in Taft.

JUDGE RESIGNS: Special Judge David Youll (Tulsa County) resigned abruptly from the bench last month after serving for 14 years.

INMATE DEATH: The article details the death of an inmate at the Oklahoma County Jail from “agitated delirium.”

NEW MEMBER: Sequoyah County deputy B.R. Rutherford has been named to the U.S. Fugitive Task Force.

DISMISSED: Charges of domestic violence were dismissed against a Muskogee police officer when the complaining witness failed to appear at the preliminary hearing.

FRICTION: Comanche County Jail Administrator William Hobbs has issued an ultimatum to DOC to come get their inmates.

NEW CLERK: The new Clerk of the Appellate Courts is John Hadden.

 

WACKY CRIME

WAY OF THE WARRIOR: A Duncan man involved in a domestic dispute compounded his problems by brandishing a samurai sword at responding officers…which earned him a trip to jail.

PURSUIT: Tulsa police pursued a suspect…across an active airport runway.

DISCOVERY: Local divers in Lenapah, Oklahoma (Nowata County) have discovered several vehicles in the water…apparently stolen.

 

 

THURSDAY, JUNE 29^th and FRIDAY, JUNE 30^th, 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.

 

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