Byron Cornelius Thompson v. State, 2007 OK CR 38 (October 11, 2007):  1) Feloniously Pointing a Weapon; 2)  Confrontation/Cross-Examination:  Thompson was convicted in Tulsa County of Murder in the First Degree and two counts of Feloniously Pointing a Weapon, AFCF.  He received LWOP on the murder and 50 years on the other two counts.  This opinion deals primarily with the two counts of Feloniously Pointing a Weapon.  The Court stated that when a defendant points a weapon at a group of persons, only a single violation of the statute has occurred.  Since that is what happened under the facts of this case, one of the Pointing counts is reversed with instructions to dismiss.  A second issue deals with witness availability.  One of the State's witnesses refused to testify for fear of reprisals.  The trial court declared him "unavailable" and allowed the State to use the preliminary hearing transcript of his prior testimony.  The Court of Criminal Appeals found no abuse of discretion under the circumstances (i.e., "the actual circumstances of this gang case").  However, Thompson maintained that the limits on cross-examination at preliminary hearing did not satisfy the confrontation clause.  Although the Court noted that such a showing might be possible, Thompson made no showing in this case.  Thompson's other claims were denied as well.

Anthony Marnette Hurst v. State, No. F-2006-191 (Okl.Cr., October 10, 2007) (unpublished):  Jury Instructions; Defense Requested Instructions:  Hurst was convicted by jury of Lewd Molestation in Comanche County and sentenced to thirteen years.  Since his requested 85% instruction was denied and the jury asked for guidance in sentencing, his sentence is vacated and the case remanded for re-sentencing.

David Tull v. Commissioner of the Department of Public Safety, No. 104,472 (Okl.Civ.App., Div. I, October 12, 2007) (released for publication):  DUI; DPS Administrative Hearings:  Tull applied for an Oklahoma driver's license.  DPS rejected his application because his license had been revoked permanently by the State of Florida following his fourth DUI.  Since Oklahoma law does not impose permanent revocations, the District Court allowed Tull to have his license under an exception found in the Oklahoma Driver License Compact (47 O.S. 781 et seq.) which allows a citizen to apply one year after a revocation.  DPS appealed and the Court of Appeals reversed.  In a lengthy opinion analyzing the Compact, the Court held that the intent and purpose of Oklahoma's Motor Vehicle Code precluded Tull's effort while his license was still revoked in another jurisdiction.  NOTE:  This is a 2-1 opinion with Hansen, P.J., dissenting.

 
Tenth Circuit

United States v. Woody, No. 06-2100 (10th Cir., October 12, 2007) (unpublished):  1) "Bad Acts"; 2) Sufficiancy of the Evidence:  The Woody brothers were convicted by jury of Murder in the Second Degree in connection with a stabbing death on an Indian Reservation in New Mexico.  Henry Woody was sentenced to 262 months and Larry Woody was sentenced to 235 months.  In this lengthy opinion, the Court REVERSED both convictions, Larry's based on insufficient evidence and Henry's based on erroneous admission of evidence substantially prejudicial to his defense (statements of propensity toward violence and talking about killing people when drinking).  NOTE:  Larry briefed the issue of sufficiency of the evidence, but Henry did not---ugh!


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Newbert, No. 07-1387 (1st Cir., October 11, 2007):  Waiver/Guilty Pleas:  In this interesting case, Newbert entered a guilty plea in a drug case.  A provision of the plea agreement contained a waiver provision that if Newbert breached the agreement he would waive his right under Rule 410 to challenge admission of his guilty plea in future proceedings.  Sure enough, about two months later Newbert moved to withdraw his plea, citing newly discovered exculpatory evidence and contending that he plead guilty to protect his family, and the District Court granted the motion.  The Government contended Newbert breached the agreement and sought to use his guilty plea at trial.  The District Court refused to allow this and the Government sought an interlocutory appeal.  The Court of Appeals AFFIRMED the District Court and applied contract principles to resolve the issue.

United States v. Richard, No. 06-10377 (9th Cir., October 12, 2007):  Trial Procedure; Testimony Read-back:  In this Felon in Possession case, the jury requested a read-back of testimony by a key witness.  The District Court permitted the jury to hear only a portion of the testimony without taking precautions to ensure the jury did not unduly emphasize the testimony.  The panel held this was reversible error.

United States v. Cavera, No. 05-4591 (2nd Cir., June 6, 2007):  Federal Sentencing Guidelines; Reasonableness:  The District Court committed reversible error by relying upon community-specific characteristics, such as population density, to impose a non-Guidelines sentence.

Parle v. Runnels, No. 06-16780 (9th Cir., October 10, 2007):  1) Cumulative Error; 2) Habeas Corpus; AEDPA Deference Met:  Parle killed his wife during a domestic dispute by stabbing her in the back.  The state trial court committed multiple evidentiary errors by allowing certain evidence damaging to Parle and excluding evidence favorable to him.  The federal District Court granted habeas relief on his cumulative error claim and the circuit affirmed.



Victories

"Send lawyers, guns and money, the shit has hit the fan."
--Warren Zevon, "Lawyers, Guns and Money" (song) (1978)




None reported.


Hearsay

TEXAS-STYLE JUSTICE IN CAPITAL CASES:  The Supreme Court recently stayed an execution in Kentucky and granted review to consider the constitutionality of lethal injection as a method of execution.  On the evening that Michale Richard was to be executed in Texas, several judges on the Texas Court of Criminal Appeals were prepared to consider a similar issue in the event lawyers for Richard raised it in filed pleadings.  The pleadings were never filed and Richard was executed without the court ever considering staying his case in light of the action by the Supreme Court.  Why?  Because Presiding Judge Sharon Keller refused to allow the pleadings to be filed after 5:00 p.m.



                         ------LEGAL CALENDAR------

MONDAY, OCTOBER 22, 2007:  THE WILLIAM J. HOLLOWAY, Jr. LECTURE will feature Judge Patrick E. Higginbotham of the U.S. Court of Appeals for the Fifth Circuit.  The lecture will take place at The Skirvin Hilton Hotel Ballroom in Oklahoma City at 5:30 p.m.  Click on the link for further information. 

WEDNESDAY & THURSDAY, NOVEMBER 7 & 8, 2007:  OBA Annual Meeting 2007.  You can register for the various CLE sessions by using the REGISTRATION FORM.  Also, HERE is the schedule of events.  Looks like some good stuff.   




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