Tran v. State, 2007 OK CR 39 (October 19, 2007):  1) Leaving the Scene; 2) Rule of Lenity:  Tran was driving his truck on I-44 in Oklahoma City, transporting a leather love-seat.  The loveseat fell out of the truck and onto the highway.  A Lincoln Navigator came upon the loveseat on the highway, swerved to avoid it, and ended up losing control, rolling, and killing three adults who were ejected and killed (three children, restrained, survived).  Police traced the loveseat back to Tran (by using good investigative techniques, tracing the manufacturer and the material that composed the loveseat).  Tran told police that he knew the loveseat fell out of his truck, but when he went back for it and saw the wreckage, he got scared and left the scene.  Tran was charged with Leaving the Scene of an Accident Resulting in Death.  The District Court granted the Motion to Quash and DISMISSED this count, holding that the statute requires the vehicle itself to be involved in the accident; and Tran's vehicle was not involved in the accident.  The State appealed and the Court of Criminal Appeals AFFIRMED, applying the rule of strict construction to criminal statutes.  Very good case!    

Russell Wayne Horn, Jr., v. State, No. F-2006-736 (Okl.Cr., October 15, 2007) (unpublished):  1. Searches and Seizures; Search Warrants; 2. Curtilage:  Horn was convicted of Trafficking and Unlawful Possession (Cocaine), AFCF, in Tulsa County before the Hon. Clancy Smith.  The priors came into play big-time, resulting in LWOP for the Trafficking and 19.5 years for the Possession.  In this 3-2 opinion, the Court reversed the Trafficking and remanded for new trial and reversed the Possession with instructions to dismiss based upon an invalid search warrant(!!)  The warrant described Horn's apartment accurately, but also authorized police to search "a certain vehicle."  When the police searched the apartment, they found car keys.  They took the keys and searched Horn's car where they found the bulk of the drugs.  The Court held that the warrant failed to specifically describe the vehicle.  Particularly instructive--and very important to Oklahoma criminal defense attorneys--is the analysis of the Court in rejecting the State's arguments.  First, the State argued that the police knew what kind of vehicle Horn owned.  The Court rejected this, stating, "This Court will not start down the slippery slope of applying an officer's knowledge to a deficient description."  Second, the State argued that the search was proper because the vehicle was within the curtilage of the apartment.  The Court held that in this case, the "home" was an apartment building and the common parking lot of a multi-family dwelling does not fall within the curtilage of a dwelling in the complex.  Third, and perhaps most important, the Court declined to adopt the "good faith" exception to the exclusionary rule(!!)  The Court had done this in the past, but I was a little bit concerned that in the right case the Court would reconsider.  Key to the Court's decision in this regard is the fact that the police apparently knew about the car and could have described it specifically in the warrant application, but did not do so.  Fabulous case!  Judges A. Johnson and Lumpkin dissented, arguing that the evidence found inside the house pursuant to the legal search was sufficient to support the warrantless search of the car in the parking lot.

Bobby M. Ellis v. State, No. F-2006-826 (Okl.Cr., October 12, 2007) (unpublished):  Double Jeopardy/21 O.S. 11:  Ellis was convicted of various sex crimes involving his two young step-daughters and zapped with time totaling 210 years (all counts running consecutively).  For the criminal defense bar, there are two aspects of this case worth noting.  First, Ellis apparently made one videotape of the sexual abuse, depicting both victims.  The State charged him with two counts of Preparing Child Pornography.  The Court reversed one of these counts, holding that the single videotape supported only one count and thus the other count was prohibited by Double Jeopardy.  This had the effect of knocking a whopping ten years off the 210 year sentence.  Second, Ellis claimed that his sentence was excessive.  The Court denied this claim, noting that Ellis showed no remorse for his crimes and in fact "blamed the child victims for seducing him."  Note to the defense bar:  The defense of "I was seduced by the child I molested" probably will not fly either at trial or on appeal.

Charles Terrell v. State, No. F-2006-348 (Okl.Cr., October 12, 2007) (unpublished):  "Bad Acts":  Terrell was tried and convicted by jury of one count of Lewd Molestation in Sequoyah County before the Hon. A. J. Henshaw and sentenced to the maximum of 20 years.  The State was allowed to introduce evidence of "other crimes" in the form of testimony by his former step-daughter who testified that Terrell molested and raped her repeatedly over a four year period.  The Court held that this evidence of "other crimes" had a visible connection with the charged offense because:  1) both girls testified that Terrell committed the same act against them; 2) Terrell threatened them afterwards to not tell; 3) both girls were family members; and 4) both girls were about the same age when the molestation occurred.  However, the Court held that the testimony by the step-daughter was not limited and that she was allowed to testify about the details of the abuse, including many instances of rape by instrumentation with various inanimate objects.  This degree of detail was more prejudicial than probative and constituted error.  The Court held that the error did not affect the finding of guilt, but did contribute to the sentence and therefore the Court modified the sentence to 10 years.  NOTE:  In footnote 2, the Court recognized that the Legislature enacted 12 O.S. 2414 which allows this type of evidence and also held that such evidence is subject to the balancing test under 12 O.S. 2403.  To my knowledge, this is the first opinion from the Court addressing the newly enacted 12 O.S. 2414. 

Johnny Lee Whitworth v. State, No. F-2006-408 (Okl.Cr., October 17, 2007) (unpublished):  Jury Instructions; Defense Requested Instructions:  Whitworth was charged in Oklahoma County with First Degree Murder, but was convicted by a jury of First Degree Manslaughter on the theory that he was too intoxicated to form intent to kill.  Still, he was hammered with a 100 year sentence.  In this appeal, the Court affirmed the conviction but MODIFIED the sentence to 50 years because the trial court refused to instruct on the 85% Rule when the jury sent a note asking how much time Whitworth would actually serve.


Tenth Circuit

United States v. Romero-Hernandez, No. 05-2154 (10th Cir., October 16, 2007) (Published):  Federal Sentencing Guidelines; Crime of Violence:  In this Illegal Re-entry case, the circuit held that the crime of Unlawful Sexual Contact under Colorado law is a "crime of violence" and thus the sentence was enhanced properly. 


United States Supreme Court

No new cases.

Last Wednesday, the Court issued a stay of execution in a Virginia death penalty case amid the lethal injection challenges.

Also, last Monday the Court granted cert. to decide this question:  "Whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction."  The case is Cuellar v. United States, No. 06-1456.  The decision below is reported at 478 F.3d 282.


Other Cases of Note

United States v. Gill, No. 2:06-CR-00725-PGC (C.D. Utah, October 15, 2007):  Sex Offender Registration:  District Court order granting a motion to dismiss in a Failure to Register case on the grounds that Gill failed to register before the Attorney General had promulgated Interim Rules making the Act's criminal provision applicable to persons convicted before its effective date.

State v. Brown, No. 2005-0749 (Ohio, October 3, 2007):  Prosecutorial Misconduct; Brady Issues:  Capital case reversed on direct appeal on two grounds:  1) A Brady violation where the State failed to disclose police reports indicating that another person committed the murders; and 2) IAC where trial counsel failed to challenge the competency to testify of Brown's wife who was the main witness against him (she was not advised that she could refuse to testify against Brown).

Rivera v. Quarterman, No. 06-70022 (5th Cir., October 18, 2007):  1) Habeas Corpus; Capital Habeas Cases; 2) Death Penalty; Mental Retardation:  Rivera's mental retardation claim under Atkins is affirmed (the circuit affirmed the finding of the District Court that Rivera is mentally retarded), but the case is reversed and remanded for an evidentiary hearing on the issue of equitable tolling on the State's claim that the petition was time-barred.

Parker v. Renico, No. 06-2419 (6th Cir., October 17, 2007):  Possession of Firearm by Felon:  Solid habeas winner in a Felon in Possession of a Firearm case where the circuit held that the state court's application of Supreme Court precedent regarding sufficiency of the evidence was unreasonable (Parker was in a car with others and the State presented evidence of mere presence only).


Victories

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


KIMBERLY ADAMS, McAlester, convinced the Court of Criminal Appeals to trim 10 years off the sentence of Mr. Terrell in the case reported above.  I believe this is the first appellate decision from the Court applying the 2403 balancing to 2414 evidence.  Terrific work, Kimberly!

KIM CHANDLER BAZE, OKC PD, persuaded the Court of Criminal Appeals to cut the sentence of Mr. Whitworth from 100 years to 50 years on an 85% Rule issue.  Good work, Kim!

CHRIS EULBERG & JEFF EULBERG, OKC, scored a terrific win and a published opinion to boot in the Tran case noted above.  It is particularly satisfying to win in the District Court and then prevail again in the Court of Criminal Appeals.  Super job by the Eulbergs!   

STEVEN M. PRESSON, Norman, scored a very nice win on a search and seizure issue in the Horn case noted above.  Super job, Steve!


Hearsay

EXECUTION HALTED just 90 minutes before it was scheduled to begin.  The Nevada Supreme Court last week stayed the execution of William Castillo in light of the action by the U.S. Supreme Court on the lethal injection issue.  Castillo, a volunteer, was reportedly disappointed at receiving the stay.

NEW JUSTICE:  Gov. Henry appointed Judge John Reif to the Oklahoma Supreme Court.  Justice Reif will fill the seat vacated by Justice Robert Lavender.  Justice Reif had served on the Oklahoma Court of Civil Appeals for 23-years.
 


                    ------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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