OCDW 04.27.15



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).




State ex rel. Pruitt v. Steidley, 2015 OK CR 6 (April 22, 2015): Conflicts: This is an opinion resolving a dispute between the Attorney General and the elected District Attorney concerning whether the A.G. can “take over” a criminal prosecution. It appears that the A.G. can. NOTE: This result is probably expected, and on balance, it is probably a good thing to not have a power vacuum in our state government on this subject.

Glenn Dale Briggs v. State, No. RE-2014-238 (Okl.Cr., April 21, 2015) (unpublished): Supervised Release: In this revocation case out of Ottawa County (the Hon. Robert G. Haney, presiding), imposition of one-year supervised release is vacated because the charge under title 63 does not contain such a provision, and the general statute that does was not enacted until after the initial sentences were imposed.




Richard Fairchild v. Anita Trammell, Warden, No. 13-6030 (10th Cir., April 23, 2015) (Published) (W.D. Okla, Hon. Timothy D. DeGiusti) (Hartz, O’Brien & Holmes): Habeas Corpus (Capital Habeas Cases; Procedural Default): Oklahoma capital habeas case is denied on claims relating to: 1) OCCA failure to apply state cases retroactively (no clearly established federal law); 2) unconstitutional mens rea requirement for child abuse murder; 3) failure to give a lesser-included offense instruction; and 4) trial court handling of a jury question on LWOP; and 5) IAC at the penalty phase.

United States v. Anthony Dexter Washington, No. 14-7017 (10th Cir., April 22, 2015) (Published) (E.D. Okla., Hon. Ronald A. White) (Lucero, Bacharach & McHugh): Sufficiency: Drug conviction is reversed based upon insufficient evidence (thus, no re-trial) when two persons were in a car—and Washington was the driver(!!)

United States v. Lester Ray Nichols, No. 14-3041 (10th Cir., April 15, 2015) (Published) (Lucero, J., and Gorsuch, J., dissenting from the denial of rehearing en banc): Sex Offender Registration: These opinions respecting the denial of rehearing en banc deal with whether SORNA applies to offenders who leave the country. Since the Eighth Circuit has created a circuit split, the dissenting judges believe that en banc review is necessary.

United States v. Dana J. Huff, No. 13-3216 (10th Cir., April 14, 2015) (Published) (McHugh, McKay & Baldock): Motion to Reconsider: In this case, the district court had initially granted a motion to suppress, but the Government sought reconsideration based upon a different legal theory, which the district court accepted. Huff argued that reconsideration was not proper because the Government gave no reason for overlooking the second theory in the first place. However, in this opinion the panel said that it did not matter and that the district court did not abuse its discretion.




“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).


Rodriguez v. United States, No. 13-9972 (U.S., April 21, 2015): Search and Seizure (Traffic Stops): In this traffic stop case, the officer concluded the stop by issuing a warning ticket, but then asked for permission to walk a drug dog around the vehicle, which was refused. He then detained Rodrigues for 7-8 minutes while he got the dog out, which then alerted. The Court held that, absent reasonable suspicion, extension of the traffic stop in order to conduct a dog sniff was unconstitutional.




People v. Boris Shaulov, No. 43 (N.Y. Ct. App., March 31, 2015): Prosecutorial Misconduct (Surprise Testimony): In this case involving rape allegations, it was agreed pre-trial by the State that the complaining witness made no “prompt outcry” to anyone after the alleged rape. Sure enough, at trial, the witness stated that she in fact called her friend right afterwards and reported it. The court reversed because of the surprise testimony which was elicited by the prosecutor after informing the court and the parties pre-trial that there was no such evidence.

People v. Richard Garcia, No. 40 (N.Y.Ct. App., March 31, 2015): Experts (Background Narrative): Conviction for manslaughter reversed because of improper background testimony by police officer and refusal to give limiting instruction on such testimony.




SCOTT ADAMS, OKC, secured a not guilty verdict in Cleveland County for a little league coach accused of lewd acts. Sounds like a tough case, but not tough enough for Scott!

DARRELL BOLTON & MARK HEIDENREITER, Tulsa, won demurrers against several bus drivers accused of embezzlement in Tulsa County. Nice work, Darrell and Mark!

ERIC EDWARDS, Enid, attacked the State’s case in a DUI prosecution in Enid (Garfield County), ultimately convincing Judge Grey to grant a demurrer on the basis that the traffic stop was pretextual(!!) Nice work, Eric!

NICK LEE, OKC, won a nifty motion to suppress in front of Judge Walke. A 7/11 store clerk called police to report a drunk starting fights in the parking lot, and when police arrived they stopped the client as he was leaving. All of the evidence from the stop was suppressed, and Nick has a nice win!

KIMBERLY MILLER & DAVID MCKENZIE, OKC, won a murder trial in Oklahoma County last week for a client who had spent almost three years in jail without bond. Way to go, Kimberly and David!




O’REILLY REDUX (NSFW): The short clip of Bill O’Reilly snapping while he worked at Inside Edition became a YouTube sensation a few years ago (the original can be viewed HERE). I don’t like O’Reilly that much, but I never thought his outburst reflected poorly on him (except he acts confused at what the phrase “to play us out” means, which is obvious from the context). We’ve all felt that frustration at once time or another, and if we all had cameras on us I think none of us could cast stones at him. But, it is pretty freaking funny to watch. My girlfriend and I would be talking about something, wondering what to do for the evening, and sometimes erupt, “Fuck it!, We’ll do it live! We’ll go to the movies and do it live!” Internets wits, of course, have had a field day with the clip, setting it to music or interspersing clips of other people talking in a manner in which it appears that they are talking to O’Reilly and he is reacting to them. This version, set to HIPHOP, is one of the best musical versions. One of the funniest is THIS version where a guy plays the part of the producer and “interacts” with O’Reilly; and there is this JEWEL, where an enterprising YouTuber set the voice to chipmunk sound (you will laugh out loud at this one).

OFFICER TARGETED: Shots were fired into the home and personal vehicle of a police officer in Tulsa.

BATES INVESTIGATION: Looks like things have gotten worse for the reserve deputy accused of killing a suspect thinking he was using a Taser rather than his handgun. It appears that a report from 2009 indicated that Bates was not ready for the field.

CDL FOR FELONS?: A bill is awaiting Gov. Fallin’s signature that would allow non-violent felons on probation to be eligible for CDLs.

FIRST BLACK SHERIFF: Sherd Parker, 93, passed away last week. It is believed that Parker was the first black Sheriff in Oklahoma.

LOCAL PAPERS BOUGHT: Berkshire-Hathaway has purchases several small, weekly newspapers in Oklahoma. I would think that small print media in Oklahoma would not be a good investment, but then again I am not Warren Buffet.

GOOGLE EXEC KILLED: An executive at Google was among the persons killed last week in the big earthquake in Nepal.

INMATE KILLED: An inmate at James Crabtree Correctional Center in Helena has been killed by another inmate, who has been charged with murder.

LUNA CONVICTED: A jury in Stephens County convicted Chancey Luna of murder in the death of an Australian native who was shot and killed in 2013. The jury recommended a sentence of LWOP for Luna, who was 16-years-old at the time of the offense.

DISCIPLINARY CHANGES: The Superintendent of Oklahoma City Public Schools has announced “sweeping” changes to school disciplinary policy in light of recent data showing that minorities were punished at a much higher rate than whites.

INDICTMENTS: A grand jury in Garvin County has handed down indictments, accusing several persons of conspiring to commit murder.

ILLEGAL DUMPING: This is such a problem in Canadian County that a full-time deputy has been assigned to deal with the issue.

PAROLE DENIED: Convicted cop-killer Arthur Parks was denied parole recently, having served 30 years, likely thanks to the efforts of District Attorney Jason Hicks who mobilized the citizenry to speak out against a parole recommendation.

DEA RAID: The DEA and the U.S. Marshals have raided Ziggyz, a local head shop that has been around for years.

NEW APPOINTMENT: Chief Justice John F. Reid has appointed retired police officer William E. Latimer to the Pardon and Parole Board. It is embarrassing to see our state officials stack the Board with former cops and prosecutors.

TBT TULSA: Interesting article in The Tulsa World about how they did things in the old days to get a confession: 20 days in custody without being charged, denial of access to a lawyer, and telling the suspect that there was an angry mob outside about to lynch him.

DEPUTY ACCUSED: A former Latimer County deputy has been accused of stealing drug evidence; also, two jailers were fired in Bryan County, perhaps because the Sheriff’s Office is broke.

OFFICERS SHOT: A deputy in Choctaw County and a Hugo police officer were injured, and the suspect killed, in a shootout last week; also, a police officer in Moore was dragged by a fleeing suspect.

FUNDING WOES: The screening program designed to send low-risk offenders to specialized programs at DOC is underfunded in most counties.

DRUG BUST: An almost year-long investigation has resulted in several drug arrests in Durant.

POLICE SHOOTING: An OHP Trooper shot and killed a man in Miami after the man fled a checkpoint.

NEW LAB: The City of Edmond is about to open its new state-of-the-art crime lab.

INVESTIGATOR CHARGED: The investigator for the Department of Veterans Affairs, who turned out to be a convicted felon, has been charged with 26 counts of various criminality.

BOND ARREST: A second arrest has been made under the new law requiring bounty hunters to be CLEET certified.

TEACHERS: A new law allows teachers to use necessary and reasonable force on students.

HACKER ARREST: An 18-year-old was arrested in Ponca City and charged with hacking into the web site of a local business.



A man was arrested in Oklahoma City after he undressed inside his apartment in front of a door-to-door magazine salesman, claiming that his “religion” requires him to be nude; an apparently meek robber was foiled by a Boston terrier; what to do if your granddaughter is not getting enough playing time? Pull a gun on the coach, of course.




THURSDAY, JUNE 25 & FRIDAY, JUNE 26, 2015: The 2015 Patrick A. Williams Criminal Defense Institute & Annual Meeting (including annual awards) will be held at the Renaissance Hotel and Cox Convention Center in Oklahoma City. This program is always top-notch, and this year I am presenting on a case-law update during the Friday session. Hope to see you there!



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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.

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!


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