(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).
JUDGE APPOINTED: Gov. Fallin announced that former career prosecutor and current Special District Judge Robert Hudson has been appointed to the vacant seat on the Oklahoma Court of Criminal Appeals.
T.G.L. v. State, 2015 OK CR 4 (March 20, 2015): Juveniles & Y.O.: This case deals with time elements that plague Youthful Offender cases. T.G.L. is now 27-years-old, but is charged with a crime committed allegedly when he was 15-years-old (Forcible Sodomy and Lewd Molestation) against an 8-year-old. The trial court granted the State’s motion to sentence as an adult. In this opinion, the Court seems to draw a bright line, holding that he should be not only sentenced as an adult, but prosecuted under an adult criminal case.
Robert Pernell Hurd v. State, No. F-2014-100 (Okl.Cr., March 20, 2015) (unpublished): Statutory Construction (Child Sexual Abuse); Hearsay (Child Hearsay); After Formers (Pen Pack Evidence): Hurd was convicted by jury in Pottawatomie County (the Hon. John Canavan, presiding) of Child Sexual Abuse and sentenced to LWOP. Hurd was the boyfriend of the mother of the minor complaining witness in this particularly distasteful case. The Court found: 1) the evidence was sufficient to show that Hurd was a “person responsible” for the minor, even though he was a boyfriend of the mother and had no legal relationship (but he had a key and could go as he pleased, and he did perform babysitting functions); 2) the trial court erred in not holding a reliability hearing regarding the hearsay statements of the minor (error, but not reversible plain error); 3) error in admitting extra material from a “pen pack” to prove the priors (error, but harmless). NOTE: The rule of lenity should counsel the Court to construe “person responsible” narrowly, but it is clear that the Court will count pretty much any relationship to the child as such, no matter how tenuous; also, concerning the use of “pen packs” the State is limited on what it can present to the jury, so do not let the State simply introduce the entire pack that it receives from DOC.
Jose Luis Garcia v. State, No. F-2013-1043 (Okl.Cr., March 20, 2015) (unpublished): After Formers (Bifurcation): Garcia, already imprisoned, was convicted by jury in Comanche County (the Hon. Gerald Neuwirth, presiding) of murdering another inmate inside Lawton Correctional Facility. This is one of those non-capital cases where the accused has prior convictions used to enhance. The Court’s precedents hold that Murder in the First Degree cannot be enhanced by prior convictions, thus sentence had to be recommended by the jury after conviction (without hearing about the prior convictions). This was error; however, the Legislature changed the statute in this regard to allow the jury to consider priors, thus the Court held that it was harmless. NOTE: This is a change in law that overrules the Court’s precedents. I have no idea why the Court hides these things in unpublished opinions.
Terril Glen Ellison v. State, No. F-2013-949 (Okl.Cr., March 20, 2015) (unpublished): Confidential Informants: This is a drug case out of Oklahoma County (Hon. Ray C. Elliott, presiding) where the trial court refused to disclose the identity of the confidential informant. The Court found no error, but the case is instructive on the law and standards governing when disclosure is required.
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).
LETHAL INJECTION: The Oklahoma case concerning the lethal injection issue has made its way to the Supreme Court.
OTHER CASES OF NOTE
United States v. Marco Antonio Flores, No. 13-4464 (4th Cir., March 3, 2015): Federal Sentencing Guidelines (Drug Quantity): Sentences in drug case are vacated because the district court did not make specific findings regarding the amount of drugs attributable to Flores.
United States v. Moises Medina, No. 13-1936 (1st Cir., March 4, 2015): Supervised Release: In this case involving a conviction for failure to register as a sex offender, conditions of supervised release (penile plethysmograph and denial of access to sexual stimulating material) are vacated because the district court failed to justify adequately these conditions. Also, the trial court imposed a term of 20 years of supervised release, but failure to register is not itself a sex offense under the Guidelines, therefore the recommended term is five years.
Hector Rivas v. Brian Fischer, No. 13-2974-pr (2nd Cir., March 11, 2015): IAC: Habeas relief in a murder case is granted where the case was circumstantial and the medical examiner affixed the time of death, but subsequent forensics cast doubt on the finding.
United States v. Michael J. Foreste, No. 13-4880 (2nd Cir., March 11, 2015): Discovery; Search and Seizure (Drug Dogs): Denial of a motion to suppress and discovery of the field performance records of a drug dog that alerted and formed the probable cause for the stop, is vacated.
DONN BAKER, McAlester, represented a teacher in Muskogee accused of slapping a first-grade student, and the act was caught on video. However, the teacher had Donn in her corner and the result was “not guilty.” Another amazing win for Donn!
ELLIOTT CRAWFORD, THOMAS GRIESEDIECK, and JARROD STEVENSON, OKC, secured a not guilty verdict in the courtroom of Judge Graves, representing a client accused of armed robbery outside of Penn Square Mall. The issue was one of identification and shoddy police work, and even though the victims identified the accused from video, the jury held the State to its proof. Nice work, Elliott, Thomas, and Jarrod!
PAT LAYDEN, McAlester, scored a nice jury trial acquittal in a case where his client, 18, was charged with having sex with a 13-year-old girl. The client took the stand and denied it, and 30 minutes after the jury retired it returned verdicts of not guilty. Nice job, Pat!
JOI MCCLENDON & CESAR ARMANTA, OKC, won a not guilty verdict in a Murder in the First Degree trial in Oklahoma County, and in a case where the State sought every form of lesser homicide instruction. This might be Joi’s third or fourth acquittal in a row in murder trials. Outstanding, Joi and Cesar!
RETIRING: Pottawatomie County Associate District Judge John Gardner has announced his retirement effective August 1, 2015.
WARDEN NAMED: Jason Bryant has been named Warden at James Crabtree Correctional Center.
JUDGE NAMED: Jennifer Brock has been named Special District Judge in Kay County.
RIP: Former Oklahoma City police chief David McBride passed away at his home recently at the age of 68.
CHIEF DENIED TREATMENT: The Boley Chief of Police was denied treatment at a hospital because he refused to relinquish his sidearm.
TRIBAL JUDGE ARRESTED: A former tribal judge has been arrested and charged with multiple criminal counts, including child rape, lewd acts, and drug charges.
OSBI RADAR: The OSBI purchases a ground-penetrating radar for $20,000.00 for the purpose of finding buried bodies—and they have already found one
HIRED: Commissioners in Woodward County have selected Undersheriff Kevin Mitchell to fulfill the unexpired term of Sheriff Gary Stanley, who has announced his retirement.
DOC OFFICIALS RESIGN: Two DOC officials at Mack Alford Correctional Center have resigned in the wake of an escape by two inmates who apparently cut a hole in the fence.
OFFICER INVESTIGATED: A Duncan police officer who is under investigation has retired, but the OSBI is still investigating the case.
RECORDS SAVED: A boiler explosion at the courthouse in Pushmataha County was handled well by officials who managed to save court records from damage.
OBN OFFICE: The Oklahoma Bureau of Narcotics has opened a new district office in Lawton.
GOOD P.R.: Lawyers are not all bad! The link goes to a great story of how Ponca City attorney Fred Boettcher assisted a waiter in Kansas who had bad teeth to get a new set.
EXECUTION HALTED: The State of Texas halted a scheduled execution on the basis that the inmate may not be competent to be executed. Also, the State is seriously close to depleting its supply of lethal drugs. Not to be deterred, the state of Utah has a contingency plan in case it runs out of lethal execution drugs—the old fashioned firing squad.
CALIFORNIA: The death penalty has been halted in California which has the nation’s most lengthy and dysfunctional system of capital punishment, at least according to U.S. District Judge Cormac Carney. The link goes to the pleadings filed in the case, and also in the Ninth Circuit which decide if Judge Carney is correct.
SNITCH APP: There is now an app, used by the Ada Police Department, that allows citizens to snitch on their neighbors directly to the police.
JAILERS SENTENCED: Former jailers in Muskogee County have been sentenced to short prison stints for using excessive force on inmates.
FIRST ASSISTANT: Attorney General Scott Pruitt has named Trent Shores as his First Assistant.
Naked woman shovel attack in Tahlequah; what happens when three morons meet in the parking lot of the county jail as a “safe place” for a Craig’s List transaction? They fight each other and get arrested, of course; a body found in Cherokee County 26 years ago is that of Jeanette Ellen Coleman—the wife of executed murderer Charles Troy Coleman.
THURSDAY, MARCH 26 (Tulsa University Law Moot Courtroom) & FRIDAY, MARCH 27 (Oklahoma Bar Center), 2015: The Art of War: Prepare Your Criminal Trial Notebook for Battle. This appears to be a good CLE, but there is not much detail on the Bar Association web site as of yet.
SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at email@example.com 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: ©2005-2015 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 firstname.lastname@example.org 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.