(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. 21: Delaware County: Delaware County is nestled in the northeast corner of Oklahoma. The county seat is the great city of Jay, and the county is named after the Delaware Indians who had established a village in the area prior to the arrival of the Cherokees in what was then Indian Territory in the 1830s. I have never had a case in Delaware County, which drops my total to 14 out of 21 counties in Oklahoma so far.
Danielle R. Nealis v. State of Oklahoma ex rel. Department of Public Safety, No. 115,595 (Okla. Civ. App., Div. IV, October 11, 2017) (Not for Official Publication): DUI: In this refusal case, revocation of DL is set aside because the 13.5 month delay from the request for the hearing to the DL hearing violated the speedy trial rights of the licensee.
Kadrian Daniels v. State, No. F-2016-562 (Okl.Cr., October 12, 2017) (unpublished): Fines; Standard of Review: Daniels was convicted by jury in Tulsa County (the Hon. Kelly Greenough, presiding) of Robbery with a Firearm and Possession of a Firearm AFCF x 2. The Court affirmed, but vacated the imposition of a $10,000.00 fine which the jury was instructed as mandatory upon conviction. This was plain error. Also, the prosecutor asked a police officer witness how many robberies take place in Tulsa each year. Trial counsel objected based on relevance, but on appeal Daniels objected because the question was geared to invoke societal alarm. The Court denied the claim on plain error review. NOTE: This issue of the robbery question is an example of an appellate trap where trial counsel makes an objection based upon one legal ground, but appellate counsel presents the claim on appeal on a different legal ground. The Tenth Circuit panels are the kings of doing this to trial and appellate lawyers and then imposing waiver rules and plain error review, but the OCCA does this sometimes as well. The lesson for trial lawyers is to always think through your objections and raise all grounds available.
Tyler Dillon Cook v. State, No. F-2016-1043 (Okl.Cr., October 19, 2017) (unpublished): DUI (Blood Draw); Standard of Review: Cook was convicted by jury in Garfield County (the Hon. Tom L. Newby, presiding) of First Degree Manslaughter (DUI) and sentenced to four years. The Court affirmed, but Cook attacked the blood draw taken after his arrest and without a warrant. I included this opinion because Judges Hudson and Lumpkin continue to disagree with Oklahoma precedent in this regard. NOTE: This is another case where trial counsel litigated the admissibility of the blood draw pre-trial, but failed to object at the trial itself when the State sought to admit the evidence. This constitutes a waiver and plain error review. This is one of those terrible appellate rules that trips up trial lawyers, and irritates trial judges who have to again hear objections upon which they have ruled already, but we are stuck with it. This is the primary reason why I never file motions in limine and see little utility in them. Pre-trial objections and rulings are all advisory. None of them matter at all unless raised at trial, with specificity.
United States v. Kathleen Stegman, No. 16-3321 (10th Cir., October 20, 2017) (Published) (Briscoe, Ebel & Matheson): Indictments & Informations (Amendment); Evidence (Privileges/Fifth Amendment); Evidence (Spoliation); Confrontation and Cross-Examination; Federal Sentencing Guidelines (Obstruction of Justice/Sophisticated Means/Intended Loss): Stegman was convicted of two counts of tax evasion and sentenced to 51 months. The panel affirmed over her claims relating to: 1) amendment of the indictment during trial (a matter of form, not substance); 2) violation of Fifth Amendment privilege by using corporate records (company ledgers) obtained by compulsory process; 3) destruction of exculpatory evidence (IRS audit information); 4) admission of testimonial evidence by her tax preparer in violation of the Confrontation Clause (not testimonial in nature); and 5) a challenge to the sophisticated means and obstruction of justice enhancements at sentencing and the intended loss calculation.
UNITED STATES SUPREME COURT
“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.
OTHER CASES OF NOTE
State of Ohio v. Thomas, No. 2017-Ohio-8011 (Ohio, October 4, 2017): Burks Notice and Bad Acts: Capital murder conviction is reversed based upon introduction of evidence that the accused possessed knives.
United States v. Lawrence James Taylor, No. 16-11384 (5th Cir., October 12, 2017): Federal Sentencing Guidelines (ACCA): Interesting 2255 action concerning the now-invalid residual clause of the ACCA, which the district court held “played no role” at sentencing. However, since the claim was constitutional in nature, and Taylor had already served longer than the 10-year maximum (unenhanced) the panel granted relief and ordered him released.
None noted, but Enid attorney Eric Edwards won a nice victory for his client in the driver’s license case featured above, which involved a refusal to take the breath test, but the license was reinstated by the district court, and again on appeal, because of a violation of the client’s speedy trial rights.
EXECUTION: The state of Alabama executed a convicted cop-killer last week, who extended his middle finger to the audience as he took 35-minutes to die, and exclaimed his last words: “Mom, sis, look at my eyes. I’ve got no tears in my eyes. I’m unafraid…to the State of Alabama, I hate you motherfuckers. I hate you.” Also, in Texas, an inmate was executed for killing a prison guard in 1998. Robert Pruett was the sixth prisoner executed in Texas this year. As Ron White said, if you kill someone in Texas, we’ll kill you back.
MURDER MOST FOUL: A lawyer in Las Vegas, from Oklahoma, died in 2015 of an apparent suicide, but a grand jury in Nevada has indicted her husband.
BRUTAL CROSS-EXAMINATION: The State of Oklahoma, in its fourth attempt at a jury trial for ex-police officer Shannon Kepler, finally got a conviction but this story details the cross-examination of a witness by defense counsel Richard O’Carroll. The witness became agitated, complained to the judge through tears, and apparently could not continue his testimony that day because of what he called “bullshit questions” from Richard.
DEPUTY CHIEF: The new Deputy Chief of Police in Durant has been named, Joe Clark.
SHERIFF: Todd Gibson has been appointed as the interim Sheriff in Cleveland County.
EMBEZZLEMENT: State park workers are in trouble for selling free passes and pocketing the proceeds.
UNQUALIFIED: The ABA has deemed federal magistrate Charles Goodwin “unqualified” to be appointed to the federal bench, something that has not occurred in eleven years.
FACEBOOK: Another police officer, this one in Verdigris, is in trouble for questionable Facebook posts.
U.S. ATTORNEY: Brian J. Kuester has been sworn in as the new U.S. Attorney for the E.D. Okla.
OFFICER DEATH: The death of a police officer in Westville, Oklahoma (Adair County) was caused by an overdose of meth and oxycodone.
EXPUNGEMENT: The article goes to a 50-state guide to expungement and restoration of rights.
TOUGH CASE: Tulsa attorney Ivan Orndorff has a tough case defending a teenager who has an extensive criminal background and is now charged with murder.
ACQUITTED: A Tulsa man tries to get his life back on track after being acquitted of rape.
TREATMENT: A new treatment facility for women has opened in Ardmore.
FIRST ASSISTANT: Newly appointed District Attorney Jack Thorp has named Joshua C. King as first assistant for District 27 (Adair, Cherokee, Sequoyah and Wagoner Counties).
CRIME: Apparently the areas of Memorial Street, Harvard, Yale and Sheridan are where the crime occurs in Tulsa.
SUICIDE: A woman committed suicide at the Midwest City Jail.
TASTY THEFT: A county worker in Texas has been accused of stealing $1.2 million…worth of fajitas over nine years.
COLD FEET: Another defendant has bolted from court prior to his appearance, this time in Creek County and while wearing handcuffs.
EWWWWW: A man has been charged with placing his junk inside a jar of peanut butter at the Oklahoma Indian Clinic.
GENIUS: A man in Guthrie tried to hide from the police…on a rooftop across the street from the Sheriff’s Office. He was caught.
STILL WEIRD: Lawton continues its weirdness, teens shoot man with pellet guns, woman arrested when police arrived and saw her sitting atop a vehicle and screaming and cursing at the man inside of it.
VISUAL: A Spiro man was arrested in Owasso for snorting heroin at a local car wash. Check out the booking photo…it looks like a keg of gunpowder blew up in his face.
GOING BACK: A homeless man wanted to go back to jail…so he robbed a bank and then waited for the police to arrive. This is apparently a true story.
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