OCDW 08.10.15



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State v. Adam Clayton Zilm, No. S-2014-812 (Okl.Cr., August 6, 2015) (unpublished): Hearsay (Child Hearsay): Zilm was accused in Tulsa County of Sexual Abuse of a Minor. In a pre-trial hearing, the Hon. Kurt Glassco held a reliability hearing for child hearsay statements of the minor complaining witness, and concluded that they were unreliable and should be suppressed(!!) The State appealed, and in this opinion the OCCA affirmed. NOTE: The Court also noted that the trial court did not abuse its discretion in permitting the minor complaining witness to testify at the hearing. Judge Hudson dissented.

Gilbert Paz v. State, No. C-2014-584 (Okl.Cr., August 6, 2015) (unpublished): Guilty Pleas: This is another case where the trial court, the Hon. Tracy Schumacher, did not provide new counsel to Paz on the hearing to withdraw his guilty pleas; so the case is remanded for a proper hearing on the motion to withdraw the pleas.

Jahmond Cavell Harley v. State, No. RE-2014-263 (Okl.Cr., August 3, 2015) (unpublished): Suspended Sentences; Discovery: In this revocation hearing out of Cleveland County (the Hon. Thad Balkman, presiding), Harley appealed in part on the basis that the trial court denied discovery. The Court held that denial of the right to discovery was harmless in this case. NOTE: I included this case because there is a terrific published opinion, Bourland v. State, 1993 OK CR 14, 848 P.2d 580, holding that the accused does have the right to discovery in revocation proceedings.

Darvin Wayne Gray v. State, No. F-2014-322 (Okl.Cr., August 7, 2015) (unpublished): Election; Prosecutorial Misconduct (Improper Argument-Comment on Failure of Accused to Testify): This is an appeal of a sexual assault conviction out of Muskogee County where the manager of the “Trail of Blood” at The Castle in Muskogee was convicted of sexually assaulting un underage employee. The Court affirmed over claims relating to election of offenses (good discussion of this topic), and the fact that the prosecutor commented about Gray’s failure to testify (error but harmless).

Christopher Paul Delair v. State, No. F-2014-265 (Okl.Cr., August 7, 2015) (unpublished): Drug Court; Indigents: Delair was terminated from Drug Court in Grady County (the Hon. Richard G. Van Dyck, presiding), apparently for non-payment of fees and costs. On appeal, he argued that the State failed to prove that the non-payment was willful; however, the Court clarified that once the State establishes that the violations occurred, it is the burden of the accused to show that non-payment was not willful, and since Delair did not meet this burden, the termination is affirmed.




“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).


The Court is on summer break.




United States v. Victor Tavarez-Levario, No. 14-50415 (5th Cir., June 5, 2015): Statute of Limitations: In a case of first impression, the court held that use of a false immigration document is not a continuing offense; thus, the conviction here is reversed because the statute of limitations had expired.

Derral Wayne Hodgkins v. State, No. SC13-1004 (Fla., June 18, 2015): Sufficiency: Extremely rare case where the court reversed a capital murder conviction based upon insufficient evidence.

Scott Lewis v. Connecticut Commissioner of Correction, No. 14-193-pr (2nd Cir., May 14, 2015): Prosecutorial Misconduct (Brady Cases): Grant of habeas relief on a Brady claim is affirmed.

Robert A. Lynch v. Superintendent Dolce, No. 14-1675-pr (2nd Cir., June 18, 2015): IAC (Appellate Counsel): In this federal habeas case out of a state robbery conviction in New York, failure of appellate counsel to raise an instruction issue was IAC.




DOUG BAXTER, OKC, went to Grady County last week and argued a suppression motion in a case where the client turned out of a privately owned parking lot onto a state highway and was stopped for failing to signal. The judge construed 47 O.S. 11-604 narrowly and in the favor of the client, ruled the stop illegal, suppressed the evidence, and dismissed the DUI/CDS case. Good job, Doug!

ALLEN M. SMALLWOOD, Tulsa, scored a nice pre-trial win in Tulsa County by having hearsay statements of a minor complaining witness suppressed, and then when the State appealed, Allen won again in the OCCA (see the unpublished Zilm opinion, supra). Nice work, Allen!




SOLITARY: Interesting article about a long-term study on the effects of long-term solitary confinement of prisoners.

INCREASED SECURITY: In the wake of an inmate secreting a razor blade at an in-court hearing, security has been tightened at the courthouse in Garvin County (Pauls Valley). The new security heralds the swearing in of new district judge Leah Edwards, sworn in recently by Judge Richard Van Dyck.

DOUBLE EXECUTION: The State of Texas is schedule to execute two inmates this week, Daniel Lee Lopez and Tracy Lane Beatty.

MORE WOES FOR SHERIFF: Embattled Tulsa County Sheriff Glanz cannot like this story, which states that the fired spokesman for his office is “excited” to be testifying before a state grand jury about the Sheriff’s Office.

NEW MUNICIPAL BUILDING: The City of Oklahoma City is constructing a new municipal building, which will have six courtrooms.

MAKES IT TOUGH ON EVERYONE: In Oklahoma’s version of Willie Horton, an inmate named Jared Wayne Jordan is accused of raping a teenaged girl twice—just one day after he was released from prison; and another ex-con is accused of raping a pregnant woman in Tulsa.

FORFEITURES: The Oklahoma Highway Patrol leads state agencies in asset forfeitures; and former state Speaker of the House Steve Lewis explains why having District Attorneys fund themselves with forfeitures and fees creates systemic problems.

COPS ARRESTED: Two Konawa police officers were arrested for shooting guns out of a vehicle; and an Oklahoma County Sheriff’s Deputy was caught trying to smuggle meth into the jail, and was personally arrested and booked by Sheriff Whetsel.

CHIEF RETIRING: The Chief of Police in Durant is retiring.

STATE SENATOR RESIGNS: State Senator Rick Brinkley, R-Owasso, has resigned in the wake of allegations of embezzlement.

FAMILY DRUG COURT: Nice story about family drug court in Norman.

NEW CHIEF: Levi Risley has been hired as the new police chief in Vian.

NEW DOC OFFICERS: DOC has hired 33 new correctional officers.

UNINTENDED CONSEQUENCES: The prescription pill monitoring laws have made it difficult for addicts to obtain pills—so they are apparently turning to heroin.


Drunk and naked is no way to go through life, son; not even in a Dollar General men’s room; man accused of lewd acts—with a tree; woman breaks into tattoo parlor, and then gets stuck inside; man “throws chainsaws” at deputy during chase; I-40 was closed for a while last week following a shooting incident; bounty hunters looking for an Oklahoma fugitive mistakenly targeted the home of the Chief of Police in Phoenix; an Oklahoma City school teacher was arrested for public drunkenness.



SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.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 jameshankins@ocdw.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.