State v. Barthelme, 2007 OK CR 40 (October 25, 2007):  Immunity:  This case involves a State appeal out of the Grady County in the case where some members of the Sheriff's Office have been charged with gambling offenses.  In this case, Delmer Frank Barthelme, then a deputy for the Grady County Sheriff's Office, agreed to be interviewed by an investigator of the District Attorney's Office (why an experienced law enforcement officer would do such a thing is not explained).  During this interview, Barthelme acknowledged that he was a member of the Elk's Lodge (where the machines were located) and that he had played them (losing $10.00).  This was the extent of the State's evidence at PH.  The demurrer was sustained because the magistrate held Barthelme's statements to the investigator were not admissible on the basis of quirky language in 21 O.S. 961 that grants immunity to a person giving testimony or evidence concerning these crimes.  The Court REVERSED on the basis that the statute does not apply to volunteered statements; or in other words:  "Compulsion is a condition precedent for immunity."  NOTE:  This was a 3-2 opinion with Judges Chapel and Lewis, dissenting.

Jeffrey Airehart v. State, No. F-2006-850 (Okl.Cr., October 19, 2007) (unpublished):  Double Jeopardy/21 O.S. 11:  Airehart was terminated from Drug Court by Judge Charles L. Goodwin in Beckham County.  The facts showed that Airehart tested positive for drug use on two occasions but was sanctioned.  The Court held that the State may not sanction and terminate for the same violation.  Termination order reversed.


BLAST FROM THE PAST--SENTENCE MODIFICATIONS:  There was some discussion recently on the OCDLA list-serv concerning whether a sentence may be modified upward at the request of the State via the modification statute (22 O.S. 982a).  I found an unpublished Order that addressed this question and concluded that such sentence modifications "are limited to downward modifications."  The Order can be found at Lloyd Henry Neuville v. State, No. PC-2000-1412 (Okl.Cr., March 20, 2001), and the language concerning sentence modifications can be found at pages 5-6 and footnote 6.


Tenth Circuit

United States v. Avalos, No. 06-2228 (10th Cir., October 23, 2007) (Published):  Conviction and sentence by jury for Distribution of Five Grams or More of Meth (a controlled buy) is AFFIRMED over claims of:  1) improper admission of statements of other drug deals by Avalos; 2) violation of the rule of sequestration (the panel joined the other circuits holding that the government may designate a case agent responsible for an investigation as its representative); 3) sufficiency of the evidence; and 4) sentencing errors.

United States v. Serawop, No. 06-4022 (10th Cir., October 25, 2007) (Published):  Restitution:  Lengthy opinion affirming a huge restitution order ($325,751) under the Mandatory Victims' Restitution Act in a case involving a conviction of voluntary manslaughter in the death of a three-month old girl.  The restitution order was based upon the lost earnings of the girl and based upon an expert appointed by and paid for by the District Court.  The District Court also refused to reduce the award amount to reflect projected personal consumption by the victim.

Johnson v. Mullin, No. 06-6260 (10th Cir., October 26, 2007) (Published):  Johnson was the co-defendant of Jay Neill in the infamous Geronimo bank robbery/murder case in Oklahoma back in 1984.  In this habeas case, the panel affirmed the denial of habeas relief to Johnson over his claims that there was insufficient evidence of his direct involvement in the crimes, the trial court's instructions on felony murder, and various evidentiary issues. 


United States Supreme Court

No new cases.

HERE is an interesting Petition for a Writ of Certiorari on the issue of whether the jury must be instructed on the effective date of a criminal statute when some of the alleged criminal conduct occurred prior to the statute and thus would be barred by the Ex Post Facto Clause.

Also, HERE is a list of "Petitions to Watch" prepared by the SCOTUSblog.


Other Cases of Note

State v. Rose, No. K06-0545 (Balt. Co. Cir. Ct., 2007):  Fingerprints:  Baltimore County Circuit Judge Susan M. Souder ruled recently that the State failed to present proof sufficient to establish as reliable the "ACE-V methodology" of latent fingerprint identification under the Frye test(!!)  That's right folks.  Fingerprints unreliable in a capital case; and, under Maryland law, her decision is not appealable by the State pre-trial.  From the decision:  "In conclusion, the proof presented by the State in this case regarding the ACE-V methodology of latent fingerprint identification showed that it was more likely so, than not so, that ACE-V was the type of procedure Frye was intended to banish, that is, a subjective, untested, unverifiable identification procedure that purports to be infallible."  HERE is a news article on the decision.

United States v. Introcaso, No. 05-4088 (3rd Cir., October 25, 2007):  1) Rule of Lenity; 2)  Firearms Act:  The Circuit held that the Firearms Act is ambiguous concerning registration requirements for "antique firearms" and this, applying the rule of lenity, reversed a conviction for possession of such a firearm.  NOTE:  The panel disagreed with decision from the Second Circuit on this issue.

United States v. Holmes, No. 05-3171 (D.C. Cir., October 23, 2007):  Searches and Seizures; Pat Down:  Holmes was out at 3:40 a.m., standing very close to a woman in an alley in an area known for drug dealing and prostitution.  When a police cruiser drove by, Holmes and the woman ran away in different directions.  Police chased Homes, who hurdled several residential fences in his attempt to elude.  They patted down Holmes for officer safety and removed a set of keys from his pocket.  Holmes told police he ran because he was soliciting oral sex from the woman and also that he was on parole.  Police took his car keys and went back to the alley and found his car.  They obtained consent from Holmes to search the car where they found a firearm.  Holmes was indicted and convicted of possessing the firearm.  HELD:  The seizure of the car keys constituted an illegal Terry search and the consent was not sufficiently voluntary to purge the taint of the illegal search.  The motion to suppress should have been granted and the conviction is REVERSED.

United States v. Jones, No. 06-15203 (11th Cir., October 22, 2007):  Jury Instructions; Allen Charge:  Statements by the trial court to deadlocked jury ("We will do this until you reach a verdict" and "There is no need of sending any notes that you can't agree, because you are going to stay here for a long time") were sufficiently coercive to constitute plain error.  REVERSED.


Federal Misdemeanors

Sometimes during plea negotiations in federal cases you need a plausible misdemeanor for your client and to resolve the case with the least exposure.  You might find that federal misdemeanor crimes are difficult to locate.

Well, Thomas Salisbury (Ponca City) has forwarded this paper to us at the OCDLA list-serv and I think it is very handy.  It is titled "Searching for Federal Misdemeanors" and shows you where to find them.  Good luck!


Victories

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


ANNE MOORE, OKC, convinced the Court to send Mr. Airehart back to Judge Goodwin's court to try his hand at Drug Court again.  Nice work, Anne!



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

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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