OCDW 08.14.17



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).


No. 13: Cimarron County: This county is in the extreme western panhandle, and with a population of 2,475, it is the least-populated county in Oklahoma. The county seat is Boise City. I have never ventured to the panhandle for court, with drops my county total to 9 out of 13.




Marty Spence Duncan v. State, No. M-2016-108 (Okl.Cr., August 10, 2017) (unpublished): Waiver (Jury Trial): Duncan appealed his conviction at a non-jury trial for the misdemeanor crime of Domestic Abuse before the Hon. Jennifer H. McBee, Special Judge (LeFlore County). Reversed because no record of waiver of right to a jury.

Jerome Deshone Hopkins v. State, No. F-2016-549 (Okl.Cr., August 10, 2017) (unpublished): Waiver (Right to Counsel); Shackling: Hopkins, proceeding pro se, was convicted by jury in Muskogee County (the Hon. Michael Norman, presiding), of Placing Bodily Fluid on a Government Employee (AFCF x 2). The Court reversed because there was no record of a valid waiver of his right to counsel, and the trial court thus erred in allowing Hopkins to proceed pro se; and also the Court found that Hopkins was brought down from the jail and spent a trial day in shorts, which showed a “control device” in view, which was also reversible error.

Steven Arnold Rogers v. State, No. F-2016-5 (Okl.Cr., August 10, 2017) (unpublished): Jurors: Rogers was convicted by jury in Woodward County (the Hon. Justin P. Eilers, presiding) of two counts of Sexual Exploitation of a Child Under 12. The Court affirmed over several claims, one of which related to his for-cause challenge of a juror. Defense counsel preserved this error by using a peremptory challenge to strike the juror, and then identifying another juror as unacceptable. The juror at issue was a retired correctional officer from DOC, who was working for the Chamber of Commerce supervising inmates on a work detail. The Court held that this was the functional equivalent of a correctional officer, and thus this juror should have been excused for cause pursuant to 38 O.S. 28(D). However, the Court denied relief because it did not view any of the other jurors as “unacceptable” and rejected the proffered reason of the defense that the juror had never received junk e-mail.




Patrick Dwayne Murphy v. Terry Royal, Warden, No. 07-7068 & 15-7041 (10th Cir., August 8, 2017) (Published) (Tymkovich, C.J., Matheson & Phillips) (E.D. Okla., Hon. Ronald A. White): Jurisdiction (Indian Country); Capital Habeas Cases: In this sprawling, 132-page opinion, the panel granted habeas relief to an Oklahoma death row prisoner tried and convicted in McIntosh County on the basis that the state court lacked subject matter jurisdiction because Murphy was an Indian and the crime occurred in Indian Country. NOTE: This case has far-reaching consequences, and I would anticipate that the en banc Tenth Circuit or SCOTUS may eventually have the final say, but for now it is advisable to determine whether any of your clients are Native American and if there offenses arguably occurred in Indian Country, and get those post-conviction applications ready to do. Jurisdiction is a claim that cannot be waived and that can be raised at any time, so no procedural hurdles.

United States v. Martye Madabuti Madkins, III, No. 15-3299 (10th Cir., August 8, 2017) (Published) (Tymkovich, C.J., Matheson & Moritz): Speedy Trial; Federal Sentencing Guidelines (Variance & Career Offender): Drug convictions affirmed over claims related to Speedy Trial (proper ends-of-justice continuance), but sentence is vacated because the district court refused to grant a variance on the belief that it was obligated to impose a sentence within the Guidelines absent extraordinary circumstances, and the prior drug convictions do not qualify as controlled substance offenses under the enhancement.

United States v. Anthony Carlyle Thompson, No. 15-3313 (10th Cir., August 8, 2017) (Published) (Tymkovich, C.J., Matheson & Moritz): Search and Seizure (Cell Phones): Drug conspiracy and distribution convictions and sentences affirmed over claims relating to: 1) speedy trial (ends-of-justice continuance proper); 2) admission of historical Cell-Service Location Information (CSLI) (rejecting a constitutional challenge to the Stored Communications Act, also joining other circuits in holding no privacy in these cell phone records); 3) sufficiency of affidavit for search warrant; 4) reasonable doubt jury instruction; and 5) use of the “extrapolation method” for drug quantity calculation in the PSR; and 6) enhancement for leadership role.




“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. Miguel Delacruz, No. 15-4174 (2nd Cir., July 5, 2017): Federal Sentencing Guidelines (Acceptance of Responsibility): District court erred in denying acceptance of responsibility adjustment based on clearly erroneous factual findings.

United States v. Bret A. Dunning, No. 16-5164 (6th Cir., May 18, 2017): Child Porn: 13.75 year sentence for “receipt” of child porn is affirmed in a split opinion, but I included it because of the dissent of Judge Merritt, which notes the “irrational” distinction between punishing “receipt of” differently than “possession of” child porn, supported by a case out of the Seventh Circuit, and how it punishes offenders like Dunning more severely than a mere possession count (Dunning downloaded child porn from the internet, as nearly all of these offenders do).

United States v. Bryant Lamar Monie, No. 16-6244 (6th Cir., June 9, 2017): Guilty Pleas: Defendant allowed to withdraw his plea when the district court misinformed him of the sentence range.




None noted this week.




NO COPS ALLOWED: A gym owner in Atlanta has a policy that no police officers or military will be allowed membership to the gym. The reported that his clients are minorities who are uncomfortable with law enforcement.

D.B. COOPER: Amateur sleuths claim to have recovered a parachute strap from the famous skyjacking case.

D.A. MOVE: The district attorney’s office in Garvin County has moved one floor up in the courthouse annex building.

NO BILL: A grand jury in Okfuskee County, empaneled by citizens, has refused to issue indictments in a fatal officer-involved shooting.

JURISDICTION: Richard O’Carroll, defense counsel for former Tulsa police officer Shannon Kepler, has used the recent Murphy from the Tenth Circuit to challenge the jurisdiction of the district court. This might be one of the first tests of the new ruling.

NEW JUDGE: Gov. Fallin has appointed the Deputy City Attorney in Lawton, Scott Meaders, to the bench in Comanche County as a District Judge.

BONDSMEN ARRESTED: A female bondsman in Stillwater has been arrested for murder following a shooting last week.

SHE’S BACK: Former Tulsa police officer Betty Shelby, at the center of a controversy when she shot and killed an unarmed man, for which she was acquitted, has been hired by the Rogers County Sheriff as a reserve deputy.

NEW WEAPON: The Logan County Sheriff’s Office is using a new kind of non-lethal weapon, similar to a taser, called a Phazzer.

WE’RE NO. 4!: Oklahoma ranks number four in the country in its strict penalties for DUI.

WELCOME: Kevin Easley has joined the Higgins Law Office in Claremore, where he will focus on criminal defense.

ROLL OF THE DICE: OKPolicy.org views prosecutorial discretion in Oklahoma as a roll of the dice.

CLOSURES: Several driver’s license testing facilities are facing closure on random days because of staffing shortages.

JUDGES: The link goes to the Judicial Nominating Commission page that has all of the applicants for the various judicial openings around the state.

CAUGHT: One of the FBI’s 10 Most Wanted has been caught, gang member Walter Yovany Gomez.

TRUTH: The Chief of Police in the city of Hartshorne says that the city’s fines are “out of whack.”

OFFICER ARRESTED: A Woodward police officer has been arrested for suspected child sexual abuse.




SCOPE IT OUT: Last week, an OKC vacuum cleaner thief made a clean getaway; this week, and OKC thief shoots for the stars…by stealing a telescope from Hobby Lobby.

THE HAT TRICK: Clean getaway by the vacuum cleaner thief, the telescope thief shooting for the stars, are now joined by…the mattress thief who committed a bednapping.

IRONY: A DHS worker arrived at a home to conduct a welfare check…while she was drunk.

SAME OL’, SAME OL’: Just another naked, homeless man in OKC fondling himself at the neighborhood Wal-Mart.

BAD PLAN: A suspected armed robber in Tulsa fled and tried to get rid of the evidence…by flushing his gun and clothes down the toilet.



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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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