(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. 34: JEFFERSON COUNTY: Jefferson County, named in honor of President Thomas Jefferson, is located way down south on the Texas border, and the county seat is Waurika. I have been to Waurika before, but have never been to the courthouse there defending a client, so my county total is now 19 out 34.
Randa Kaylie Ludlow v. Rick Silver, Sheriff of Washington County, No. 116,802 (Okla., March 5, 2018): Contempt; Habeas Corpus: This is an Order granting original jurisdiction and granting a writ of habeas corpus in a case out of Washington County where the Petitioner was held in contempt of court by District Judge Curtis DeLapp, but a court minute is not sufficient to comply with procedures for direct contempt.
Rayvon Latroy Johnson v. State, No. RE-2016-1051 (Okl.Cr., March 15, 2018) (unpublished): Suspended Sentences: In this revocation case out of Oklahoma County (the Hon. Cindy H. Truong, presiding), Johnson contested an order of adjudication as a delinquent as proof of a prior because it was not him. This turned out to be true, and the State confessed the error on this point, but there was another basis for revocation so the Court affirmed.
Levi McCray Luginbyhl v. State, No. F-2016-196 (Okl.Cr., March 8, 2018) (unpublished): Jury Instructions (Flight): Luginbyhl was convicted by jury in Tulsa County (the Hon. Kelly Greenough, presiding) of Robbery w/Firearm, AFCF x 2, and sentenced to 40 years. In this appeal, he raised several claims, including one in which he attacked the “flight” instruction because he did not testify and offered no explanation for flight. Thus, the instruction was error, but harmless.
Jordan Taylor Cloud v. State, No. F-2016-1118 (Okl.Cr., March 8, 2018) (unpublished): Drug Court: This is a bizarre case out of Pontotoc County (the Hon. Gregory D. Pollard, presiding) where Cloud was sanctioned for violations for 30 days, but the Drug Court administrator gave an “oral directive” to keep him in jail for an additional nine days while the State collected information from his cell phone for a new violation. Cloud argued that this additional nine days constituted punishment for a violation, and thus he could not be punished again by termination. The Court rejected his claim and affirmed the termination, but check out the Specially Concurring opinion of Judge Rowland for the “troubling” fact that Cloud was held on the authority of the Drug Court Coordinator without any judicial determination on the legality of his detention.
Kurk Delawrence Johnson v. State, No. F-2016-658 (Okl.Cr., March 8, 2018) (unpublished): Confrontation/Cross-Examination; Evidence (Hearsay/Forfeiture by Wrongdoing): Johnson was convicted by jury in Tulsa County (the Hon. William D. LaFortune, presiding) of Sexual Abuse of a Child Under 12, AFCF, and sentenced to LWOP. The Court affirmed, but the wrinkle here is that the children made statements and were subject to forensic interviews, but were not called by the State at trial. The State sought to introduce the statements as hearsay by forfeiture by wrongdoing based on jail phone calls by Johnson in which he tried to influence their testimony. However, the defense called the children in its case-in-chief, thus they were questioned by the defense about their hearsay statements. This opinion is expansive on the Confrontation issue, and the Court noted the error in allowing the State to introduce the hearsay statements in its case-in-chief, but held that the error was harmless because the defense called them which satisfied the Confrontation Clause. Also, the discussion of the forfeiture by wrongdoing issue is noteworthy. NOTE: In footnote 1, Judge Lumpkin noted that he continues to follow SCOTUS precedent that issues contained in a footnote are dicta and not holdings of the Court, but he nevertheless found it necessary to rely on the law in a footnote in a SCOTUS opinion. Also, Judge Hudson concurred specially, emphasizing that Confrontation may not be satisfied by introducing hearsay; and Judge Kuehn concurred in the result, expanding upon the State’s duty in these cases and the contours of the forfeiture by wrongdoing doctrine.
United States v. David Ortiz-Lazaro, No. 16-2141 (10th Cir., March 16, 2018) (Briscoe, Seymour & McHugh) (Published): Federal Sentencing Guidelines (Reasonableness): Above-Guidelines sentenced for a term of supervised release, after a guilty plea to illegal reentry after deportation is affirmed over claims that the sentence was procedurally and substantively unreasonable.
United States v. Joseph R. Degeare, No. 17-6080 (10th Cir., March 13, 2018) (Holmes, Matheson & Moritz) (W.D. Okla., Hon. Robin J. Cauthron) (Published): Federal Sentencing Guidelines (ACC/Crime of Violence): ACCA sentence vacated because Oklahoma sodomy convictions are not crimes of violence under federal sentencing law.
United States v. Joseph P. Pacheco, No. 16-3294 (10th Cir., March 7, 2018) (Briscoe, Ebel & Matheson) (Published): Search and Seizure (Cell Phone): Conviction for drug and firearm offenses affirmed over claims relating to a search of a cell phone, and sentence affirmed over a claim relating to how the district court defined the amount and type of meth. The search of the cell phone was reasonable, even though it was searched in Missouri based upon a warrant issued in Kansas, because Leon‘s good faith exception saves the police conduct. NOTE: The Court analyzes the various bases proffered by the Government to justify the search of the cell phone (seized when Pacheco was holding it in his hand when he was caught hiding in the attic): incident to arrest, special-needs exception for parolees, totality-of-the-circumstances exception to the warrant requirement.
United States v. Michael Eugene Banks, No. 16-6322 (10th Cir., March 6, 2018) (Hartz, Phillips & Moritz) (W.D. Okla., Hon. Timothy D. DeGiusti) (Published): Search and Seizure (Protective Sweep; Ping Order; Plain View); Arrest (Warrant); Burks/Bad Acts: Drug convictions affirmed over claims relating to: 1) invalid arrest warrant (there were sufficient facts in the affidavit to support the warrant); 2) issuance of a “ping order” under the Stored Communications Act; 3) protective sweep (it was reasonable); 4) items seized in plain view during the protective sweep (a wallet and a bag were opened; which was error but harmless since no evidence seized from these items were used at trial); 5) sufficiency/constructive amendment; 6) overview testimony (proper); 7) 404(b) evidence; and 8) sentencing issues. NOTE: In a lengthy footnote, note 3, the panel questions whether the “ping” in this case is a search at all, and outlines some of the authority on this open question; however, the panel did not decide the issue. Also, Judge Phillips penned a concurring and dissenting opinion, concluding that the protective sweep was unlawful.
United States v. Richard Anthony Trent, No. 17-6041 (10th Cir., March 6, 2018) (Holmes, Matheson & Moritz) (W.D. Okla., Hon. Joe Heaton) (Published): Law of the Case: In this complicated opinion addressing a 2255 motion, the panel affirmed on the law-of-the-case doctrine where intervening SCOTUS authority undercut one rationale used by the panel to affirm on direct appeal, but did not affect the second rationale.
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. Jesse Alvarez, No. 16-4154 (8th Cir., December 27, 2017): Supervised Release: Alvarez was on supervised release and the PO petitioned to revoke based on drug test failures, but also on the fact that state prosecutors had charged him with domestic abuse. Alvarez moved the district court to continue the revocation hearing until after the state charge was resolved, but the district court refused. The panel found no abuse of discretion. NOTE: This happens frequently in state courts as well, when the client is on probation and catches a new charge. Generally, courts will forge ahead with the revocation hearing, although the trial court has discretion to continue it.
United States v. Jarnaro C. Middleton, No. 16-7556 (4th Cir., February 26, 2018): Federal Sentencing Guidelines (ACCA): Prior conviction for involuntary manslaughter (selling alcohol to a minor) is not a “violent felony” for ACCA purposes.
United States v. Jolon Devon Carthorne, Sr., No. 16-6515 (4h Cir., December 21, 2017): IAC: 2255 motion is granted on an IAC claim where trial counsel failed to make an obvious objection to the career offender designation. NOTE: The panel held that its decision on direct review of the career offender designation, under plain error review, are sufficiently distinct from the IAC claim as to not control the outcome on collateral review.
United States v. Brian Bowman, No. 16-4848 (4th Cir., March 1, 2018): Search and Seizure (Traffic Stops): Conviction for meth distribution is vacated because district court erred in denying motion to suppress evidence from dog sniff search after an already-completed traffic stop where the officer had neither consent to extend the traffic stop nor reasonable suspicion of ongoing criminal activity.
United States v. Jaime Bauzo-Santiago, No. 15-1280 (1st Cir., August 8, 2017): Evidence (Plea Discussions): The pithy introduction: “The case up today presents us with a cautionary tale of what not to say and who not to say it to, and the consequential aftermath which can flow from such a slip-up.” A police officer saw Bauzo pull a pistol out of the waistband of his pants and pitch it into a black SUV. Bauzo got side-ways with his counsel prior to trial, and he sent a hand-written letter to the judge seeking a new lawyer and accepting responsibility “as to guilt” and asking for a reasonable sentence. However, no plea deal was reached and the case proceeded to trial, where the Government introduced Bauzo’s letter. On appeal, Bauzo argued that the letter was inadmissible as plea negotiations under Rule 410, but the panel did not accept that argument. NOTE: The panel engaged in an extensive discussion of Rule 410, and noted that it encompasses statements made to “an attorney for the prosecuting authority” not the trial court as Bauzo did here.
MARK ANTINORO, Pryor, advocated several challenges for his client in Rogers County, but did secure a grant of a motion to suppress a search of a cell phone. HERE is the Order by the Hon. H.M. Wyatt, III, Associate District Judge. Nice work, Mark!
BRENDAN M. MCHUGH, Claremore, also got a victory Rogers County on a motion to dismiss based upon illegal detention of his client. HERE is the motion, and HERE is the State’s response. Good job, Brendan!
JARROD STEVENSON, OKC, and EMILIE KIRKPATRICK, secured an acquittal for bondswoman Chasity Carey in a First Degree Murder case out of Payne County. The case has caught some national attention and Jarrod has given taped interviews with his client which will appear on Inside Edition and Dr. Phil this week (maybe today, Monday). Be on the lookout for that. HERE is a link to the video of the shooting. HERE is a press release from the State. Also, Jill Tontz, who is running for District Attorney for Logan and Payne Counties, says that she would have charged the case differently. I suspect that the result would not have been different. Terrific work, Jarrod!
VIRGINIA BANKS, Stillwater, won a not guilty verdict in a drug trafficking case on March 13, 2018, for a client who faced huge exposure as the result of a long criminal history. Good job, Virginia!
JOSH LEE, Vinita, secured a spectacular appellate win in the Oklahoma Supreme Court on a writ of habeas corpus in the case featured above, in which Judge DeLapp had imprisoned the client for contempt of court. Nice job, Josh!
RIP JOHNNY ALBERT: Criminal defense attorney Johnny Albert passed away recently. At his best, he was one of the most talented trial attorneys in Oklahoma history, and was a winner of the Clarence Darrow Award from the OCDLA. He will be missed.
NEW EXECUTION METHOD: Oklahoma is poised to become the first state to use nitrogen gas to execute condemned inmates. Observed death row inmate, and my former client, Phillip Hancock, “It’s better than having some idiot trying to find a vein.”
MURPHY DISCUSSION: The Murphy case, and its implications for state jurisdiction in criminal cases involving Indian reservations, is in the public and legal eyes of the nation while the Supreme Court considers whether to hear to hear the case.
“PUNISHING POVERTY”: There is a concern that changes in Tulsa municipal law might incarcerate more low-level offenders in the jail.
“AN IDEAS MAN”: Former Assistant District Attorney Ben Fu is profiled as he runs for the office of District Attorney in Tulsa County.
MIXON TAPE: The City of Norman has settled an Open Records lawsuit for $60,000.00 involving the video of former Oklahoma football player Joe Mixon.
TOP POLYGRAPHER: Enid Police Sgt. Casey Von Schriltz completed a polygraph school in Texas at the top of his class.
CANNOT AFFORD IT: Middle-class America on down cannot afford a legal defense.
COYLE RUNNING: Assistant District Attorney Heather Coyle has announced her candidacy for District Judge in Oklahoma County.
ACCOUNTING NIGHTMARE: Woods County is in the midst of an accounting nightmare and cannot reconcile its books.
HONORED: The Lawton Fort Sill Community Coalition Advocates for Sober Teens has recognized prosecutor Mark Clark as Prosecutor of the Year.
HOT WATER: Poteau attorney Steven Minks has been jailed for contempt of court for failing to show up for dockets, which has apparently led to other charges.
EXECUTION: The State of Alabama executed death row inmate Michael Wayne Eggers.
IN THE RUNNING: Special Judge Michael Tupper (Cleveland County) has announced his candidacy for district judge.
IN THE RUNNING II: McAlester attorney Terry Harrison has announced his candidacy for District Attorney.
NEW CLERK: Laura Lee has been named the new Court Clerk for Garvin County.
OLD WARRANT: A man was arrested in McClain County after a traffic stop revealed a 26-year-old warrant on an old acceleration case.
TURMOIL: After the Kiowa Police Chief was fired, other officers have resigned.
13 SHOCKING OKLAHOMA CRIME VIDEOS: Yes, it’s click-bait from NewsOK, but there are some interesting videos, including the bailbonds shooting out of Stillwater in which Jarrod Stevenson secured an acquittal.
SHERIFF ARRESTED: The OSBI has arrested the Major County Sheriff stemming from an incident involving his daughter’s boyfriend.
FIRED: The head of the police pension fund has been fired amid a criminal investigation.
SETTLED: The estate of Eric Harris, the Tulsa man shot and killed by a Tulsa Police Officer, has settled his wrongful death civil case for $6 million.
NARCAN: The Oklahoma Sheriffs Association has given every sheriff and deputies in the State a supply of the drug Narcan, which is helpful in dealing with opioid overdoses.
CLOSED: An Oklahoma City halfway house operated by Catalyst Behavioral Services has been closed amid a multitude of problems.
RAPE KITS: The main reason why most kits are not tested: lack of victim cooperation.
ICE: ICE plans to build a facility in Oklahoma City.
CONSOLIDATION: The legislature is taking steps toward consolidating the OSBI with the ABNDD.
DUMP HIM: A Muskogee man was charged with head-butting his girlfriend and breaking her nose “after lengthy felony history.”
WRONG JACKET: Also in Muskogee, a mother was arrested after her elementary school child was found with drugs in a coat pocket that belonged to the mother.
WHY?: A Tulsa business was robbed…of popcorn equipment.
SCAMMER: A scammer in Wilson, Oklahoma, impersonated…Blake Shelton.
EMERGENCY: An OKC man was arrested…after making 37 calls to 911 in one hour.
OOPS: Police were investigating a shooting in Tulsa….when a distracted driver crashed into a police cruiser.
FIREBUG: A man in Rogers County in jail for arson has been arrested again…for throwing “fireballs” out of his jail cell.
SIGN OF THE TIMES: A boy at Byng Junior High texted a girl, telling her that he appreciated her, “Hot, shoot-up-the-school looks,” which garnered young Romeo questioning by the Sheriff.
ODIFOROUS: A Woods County Deputy arrested a man for intoxication…but the man was so foul smelling that the deputy walked him to the jail rather than transporting there in a patrol car.
THURSDAY MARCH 29 & FRIDAY MARCH 30, 2018: OCDLA and the Vital Projects at the Proteus Fund present a FREE CLE program titled Killing the Culture of Death: Litigating Juvenile Life Without Parole and Death Penalty Cases. The seminar is good for 12 hours of CLE (including 1 hour of ethics).
SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at firstname.lastname@example.org 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: ©2005-2018 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!
If you have received this e-mail in error, or no longer wish to receive the weekly newsletter, simply reply to the message, or send a new message, to email@example.com and type in “UNSUBSCRIBE” in the subject line, along with your name and e-mail address and you will be taken off the mailing list.