(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. 28: GREER COUNTY: Greer County is located in the southwest part of our state, and the county seat is Mangum. Greer County, Oklahoma, was actually part of Greer County, Texas, which was named for former Texas Lt. Governor John A. Greer. This county was assigned to Oklahoma Territory in 1896, as part of litigation in the Supreme Court, but kept its name after the transition. The Oklahoma State Reformatory is located there, and I have known a few people from Mangum, but I have not ever represented a client in a case in Greer County, which brings my county total to 17 out of 28.
Robert Joseph Stillwagon v. State, No. F-2016-349 (Okl.Cr., January 18, 2018) (unpublished): Waiver (Appellate Issues): Stillwagon was convicted by jury in Oklahoma County of multiple counts of lewd acts and other sex offense (the Hon. Cindy H. Truong, presiding). The Court affirmed, but I included the opinion because the Court held that some issues were waived because citations to the record were not used in violation of Rule 3.5(A)(5), although the Court addressed the merits anyway and denied the claims. The Brief in this case set out a detailed statement of facts with citations to the record and transcript pages, but apparently did not use cites in the body of the arguments. The Court has been increasingly sensitive to procedural aspects of Briefs within the last year or so, particularly when litigants raise more than one issue in a proposition of error, and now, it appears, with citations to the record. Appellate practitioners take note.
United States v. Gary Alan McKibbon, No. 16-1493 (10th Cir., December 28, 2017) (Published) (Briscoe, Ebel & Phillips): Federal Sentencing Guidelines (Drug Trafficking Offense): In this felon-in-possession of a firearm case, the sentence is vacated because a prior conviction for drug distribution in Colorado was not a “controlled substance offense” under U.S.S.G. sec. 4B1.2(b).
United States v. Walter Earl Saulsberry, No. 16-6306 (10th Cir., December 28, 2017) (Published) (Hartz, Phillips & Moritz) (W.D. Okla., Hon. Robin J. Cauthron): Search and Seizure (Anonymous Informant; Scope of Search): Search invalid where, although police had reasonable suspicion to detain based upon an anonymous informant report that Saulsberry was smoking marijuana in his car, police did not have probable cause to expand the search to the credit cards which formed the basis of the underlying fraud charge, thus the expansion of the search was illegal.
United States v. Jose Rios-Morales, No. 16-3233 (10th Cir., December 28, 2017) (Published) (Bacharach, McKay & Murphy): Prosecutorial Misconduct; Burks/Bad Acts; Jurors: In this drug conspiracy case, the panel affirmed over claims relating to: 1) 404(b) violation of evidence of a prior conviction for drug conspiracy; 2) prosecutorial misconduct (no plain error); 3) misrepresentations of Government witness; 4) trial court mishandled concern of jurors “about the Hispanic man in the parking lot” (deference to the trial court); and 5) cumulative error.
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
United States v. James Michael Wells, No. 14-30146 (9th Cir., December 19, 2017) (For Publication): Evidence (Criminal Profile Testimony); Experts; Standard of Review: Murder convictions reversed because of the admission of “criminal profile” testimony from a forensic psychologist. NOTE: Wells did not object specifically on this basis at trial, but did pre-trial, which the panel held was good enough to preserve the claim.
United States v. Latchman Singh, No. 16-1111-cr (2nd Cir., December 12, 2017): Federal Sentencing Guidelines (Reasonableness): Singh was convicted upon guilty plea of illegal reentry with a Guideline range of 15 to 21 months, with which the Probation Office and the Government agreed; however, the district court sentenced him to 60 months. The panel vacated and remanded because the trial judge committed procedural and substantive error.
United States v. William Scully, No. 16-3073-cr (2nd Cir., December 13, 2017): Advice of Counsel Defense: Conviction for conspiracy and fraud vacated because the district court excluded evidence related to Scully’s advice-of-counsel defense.
United States v. Billy Joe Rucker, No. 16-6415 (6th Cir., October 27, 2017): Supervised Release: Revocation of supervised release is vacated and remanded for resentencing because the district court considered rehabilitation as a factor in determining the length of the sentence.
LANCE PHILLIPS, OKC, won an acquittal last week in federal court representing a client charged with possession of contraband at FCI El Reno. The client was steadfast that he did not do it, despite a “confession” and other versions of the events by the correctional officers. The jury believed the client. Nice work, Lance!
KEVIN FINLAY, Norman, secured a dismissal of a negligent homicide case for his 17-year-old client, which involved the death of the wife of WWE star and Oklahoma Jim Ross. Details are scant because it was filed as a juvenile case, but District Judge Steve Stice dismissed the misdemeanor count. Good job, Kevin!
WINSTON CONNOR, II, Miami, secured dismissal of First-Degree Manslaughter charges against his client, accused in the wake of a car crash. Winston convinced Special District Judge Larry Langley to sustain his demurrer to the evidence. Terrific job, Winston!
CREDIT FOR TIME SERVED
Generally, the trial court has discretion whether to grant credit for time served to a client who has been incarcerated prior to sentencing. However, there are two situations where the issue can be litigated in the event that the trial court refuses.
The first is if the client cannot make bond because of indigence, and the time spent in jail will push the sentence over the statutory maximum. Both the Tenth Circuit and the Oklahoma Court of Criminal Appeals have found that this violates the Equal Protection Clause. See
Holloway v. State, 2008 OK CR 14, 182 P.3d 845; Hall v. Furlong, 77 F.3d 361 (10th Cir. 1996). Note that the burden is on the accused to show that pre-trial incarceration was the result of indigence. See
Leandra M. Jackson-Hubbs v. State, No. RE-2016-138 (Okl.Cr., April 11, 2017) (unpublished).
Second, the trial court may err if it refuses to grant credit for time served as a matter of “policy” to punish a defendant for exercising his right to a jury trial. Trial courts do this all the time, but if they articulate that as a reason for denying credit, then the OCCA may find an error. See
Jarrod Demar Mansker v. State, No. F-2015-194 (Okl.Cr., July 14, 2016) (unpublished).
Finally, be sure to always make a good record at sentencing that the trial court has ordered credit for time served, otherwise there might be an ambiguity and the client will not get it.
TEEN COURT: This enterprising program in Comanche County allows at risk teens to be present their case to other teens in a courtroom setting.
CRIME DROP: The rate of major crimes dropped 12% in Carter County.
SUED: A state representative, Mark McBride, found a tracking device on his case, which apparently turned out to be linked to Eastridge Investigations and Asset Protection. Rep. McBride has filed a lawsuit against Eastridge over the incident.
RAPE KITS: Gov. Fallin is applying pressure to law enforcement to keep up with rape kit tests.
SOCIAL MEDIA: Interesting article about how social media giants (Facebook, Twitter, Instagram, etc.) cooperate with law enforcement in disseminating content, but are apparently balking at assisting defense lawyers, citing the Stored Communications Act. A case out of California may clarify some of the constitutional problems with this approach.
FEMALE INCARCERATION: A short film explores female incarceration in Oklahoma, which is consistently one of, if not the, highest in the nation.
DOC: DOC Director Joe Allbaugh made a presentation to the Legislature, supporting his request for funds with photos of crumbling infrastructure of prisons.
U.S. ATTORNEY LEAVING: Mark Yancey, the U.S. Attorney for the W.D. Oklahoma, has left his post to join DOJ in another capacity in South Carolina.
EXECUTION: Texas has executed the “Tourniquet Killer” last week, marking the first execution in the nation in 2018.
RETIRING: District Judge Thomas H. Alford (Muskogee County) has announced his retirement from the bench. Attorney Bret A. Smith has announced that he plans to run for the position.
RETIRING II: The Chief of Police in Healdton, Johnny Turner, has retired, and Assistant Chief Jon Sumner will be the interim-Chief until a replacement is named.
MURDER CHARGE: A 13-year-old boy in Chandler (Lincoln County) has been charged with First Degree Murder in a crossbow shooting of two brothers. The boy is one of the youngest ever to be so charged in Oklahoma with First Degree Murder.
MENTAL HEALTH: The mental health pod at the Tulsa County Jail is full…but it appears that the inmates there are not getting help.
HOMICIDE: An Enid woman was killed in an apparent argument over a cell phone.
UNUSED: An expensive video system in the Oklahoma County Jail, designed for defendants who do not necessarily have to be present in court has not been used since it was purchased.
NEW JUDGE: Gov. Fallin has appointed Special District Judge Trevor Pemberton (Oklahoma County) as a district judge to replace the Hon. Roger Stuart, who retired in August.
NEW CHIEF: Oklahoma City University has named Jennifer Rodgers the new Chief of Police.
GUILTY: The I-40 Shooter has pled guilty to two murders and will get LWOP instead of a possible death penalty.
BODYCAMS: Deputies in Tulsa have begun using bodycams.
ROUND II FOR AMORE: Tulsa County District Judge James Caputo has announced that he will preside over another giant marriage ceremony during Valentine’s Day.
PART OF THE CREW: A woman in OKC obtained keys to a vehicle from a local business by claiming to be a member of the cleaning crew.
$323 PER CAN: A shoplifter in The Village stole three cans of beer…and the court experience ended up costing her $323 per can.
EVERYBODY GOES: A front yard fight in Okmulgee involving four persons resulted in drugs being found inside the home and everyone going to jail.
SAY IT AIN’T SO, BRO!: A former Alpha Sigma Phi fraternity brother a OU has been charged with embezzling $32,000.
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