Autry v. State, 2007 OK CR 41 (November 2, 2007):  Contempt:  OKC attorney David Autry defended a client in a capital murder case in Oklahoma County and was held in contempt.  I have been interested in this case for a long time and was disappointed in the Court's recitation of the facts.  I believe them to be lacking and not telling the complete story.  As I recall the facts, the crime was a sexual assault/murder but there was DNA found on the panties of the victim that did not match the client.  For some inexplicable reason, Judge Tammy Bass-Jones (now Tammy Bass LeSure) ruled that such evidence was inadmissible.  When the trial started, then-DA Wes Lane told the jury in opening statements that there was no evidence of anyone having committed the murder other than the client(!)  This is when David told the jury about the DNA evidence in his opening statement and was held in contempt.  The matter was transferred to then-judge Susan P. Caswell for hearing at which David was found guilty of direct contempt and fined $500 plus ordered to pay $13,147.50 as costs resulting from his conduct.  In this published opinion, the Court affirmed the contempt citation and $500 fine, but vacated the assessment of costs.  This opinion contains a good discussion of the topic of direct contempt, notably holding that such proceedings are sui generis and thus there is no right to the set of Due Process rights of a criminal defendant such as the beyond a reasonable doubt standard.

Mann v. State, 2007 OK CR 37 (October 30, 2007):  Interrogations/Fifth Amendment:  NOTE:  The name of this case should be Blanton v. State.  It looks like a typo by the Court to title the case Mann v. State, since the Appellant's name is Mann Shockley Blanton.  I will use Mann to refer to the appellant.  Mann was convicted of Rape in the First Degree in Carter County and sentenced to 50 years.  While Mann was in the county jail, a DHS worker interviewed him about the allegations as part of a parallel DHS "child protection" investigation.  The DHS worker did not Mirandize Mann before questioning him at the jail.  The trial court allowed admission of the statements on the basis that the DHS worker was not a law enforcement officer.  The Court of Criminal Appeals disagreed and held that the DHS worker is a law enforcement officer for Miranda purposes.  Thus, the statements made by Mann to the DHS worker were inadmissible.  Unfortunately for Mann, the Court held that the statements were not material to the conviction, but were material to the sentence.  Thus, the conviction is affirmed, but his sentence was modified to 35 years.

Fancy's Entertainment, L.L.C. v. The City of Enid, No. 103,588 (Okl.Civ.App., Div. II, October 23, 2007) (Released for Publication):  City Ordinances:  Although not a criminal case per se, this opinion deal with an ordinance enacted by the City of Enid that prevented persons aged 18-21 from entering the premises of "any establishment licensed to sell low-point beer in which nearly nude dancing is permitted."  As you can imagine, this caused some problems for strip-club owners in the area because dancers and employees under 21 could no longer enter the building.  One such owner sued, arguing that the city ordinance was contrary to state law and unconstitutional as well.  In this opinion, the Court of Appeals agreed!  Although the Court did not go so far as to address the constitutional claims, it did hold that the ordinance was contrary to state law on the subject and is therefore invalid. 


Tenth Circuit

United States v. Angel-Guzman, No. 06-4303 (10th Cir., October 30, 2007) (Published):  Federal Sentencing Guidelines; Reasonableness:  Angel-Guzman challenged his sentence (at the low end of the Guideline range) for substantive unreasonableness.  In this opinion, the panel stated that this was the first case argued in the circuit post-Rita involving a within-Guidelines sentence challenge, "we take this occasion to discuss our understanding of the current state of the law applicable to such challenges."  As you might have guessed, the panel concluded:  "We therefore conclude that, with respect to within-Guidelines sentences, Rita 'does nothing to change the appellate reasonableness standard this Circuit has applied since Booker.'"  The panel did, however, make it clear that Rita "portends a modest change in the practice of some judges within our Circuit" by dispensing with the presumption of reasonableness at the District Court level.  Angel-Guzman was convicted (by guilty plea) of Knowingly Transporting Illegal Aliens (8 of them).  The PSR showed that he had six prior misdemeanor convictions (four alcohol-related, assault w/deadly weapon, and infliction of corporal injury on a spouse).  Although he argued that the PSR exaggerated the seriousness of his criminal history, neither the District Court nor the Circuit was impressed.  AFFIRMED.

Cummings v. Sirmons, No. 06-7091 (10th Cir., October 30, 2007) (Published):  Habeas Corpus; Capital Habeas Cases:  Oklahoma death row inmate's habeas denial is AFFIRMED over claims of:  1) IAC of trial and appellate counsel for failing to seek DNA testing, challenge the confession, obtain various records, and a variety of alleged shortcomings by appellate counsel; 2) admission of uncorroborated testimony of accomplices; 3) misjoinder of counts; 4) and the lack of jury instruction on the credibility of accomplice testimony.

United States v. Contreras, No. 06-4144 (10th Cir., October 31, 2007) (Published):  Federal Sentencing Guidelines; Obstruction of Justice:  The panel stated that this case presents a matter of first impression for this circuit:  Whether the Sentencing Guidelines enhancement for obstruction of justice, United States Sentencing Guidelines Manual sec. 3C1.1 (2002), applies when a defendant's obstructive conduct occurred during the prosecution of state charges preceding the federal indictment, but both federal and state charges were based on the same underlying conduct."  We hold that, in this case, it does.  This case involved a traffic stop and subsequent finding of drugs (the search was lawful).  Contreras, who was also charged in state court, fled to Mexico.  Eight months later she was arrested crossing the border.  The "obstruction" allegation contained in the PSR was her failure to appear at her state-court hearing.  NOTE:  Six circuits have held that obstruction of state court proceedings does qualify for the enhancement (the Second, Third, Fourth, Sixth, Eighth, and Eleventh); while one circuit has held to the contrary (the Seventh).

United States v. Copening, No. 06-5232 (10th Cir., October 31, 2007) (Published):  Investigative/911:  This case out of Tulsa presents a search and seizure issue.  A series of phone calls (from an anonymous caller) were placed to 911 which detailed an African-American man exit a vehicle, drop a pistol outside a convenience store, pick up the pistol, return to the vehicle, "stash" the pistol in the seat, and then enter the convenience store.  Four more phone calls followed with additional details of seeing this person with a gun, descriptions of the vehicle, and reports of where it traveled.  This information resulted in a "felony takedown" of Copening and the seizure of the gun.  The panel engaged in a Terry analysis and concluded that the five 911 calls contained sufficient "indicia of reliability" to justify the stop of the truck and the "felony takedown" procedure used to subdue Copening and the other occupant of the truck was reasonable.

Diestel v. Hines, No. 06-7070 (10th Cir., November 1, 2007) (Published):  Insanity/Competency:  Federal habeas case out of Oklahoma in a non-capital First Degree Murder case.  The basic facts surrounding the killing were undisputed except for Diestel's state of mind.  At trial, Diestel asserted an insanity defense.  In this lengthy opinion, the panel AFFIRMED the habeas denial over claims involving whether the evidence was sufficient to show that Diestel could distinguish between right and wrong; and that the decision by the Oklahoma Court of Criminal Appeals was not contrary to federal law.  This case appears to be one involving the "battle of the experts" and the panel refused to disturb the state appellate court decision.


United States Supreme Court

No new cases.

The Court heard oral arguments on Tuesday, October 30, 2007, in Logan v. United States, which deals with priors under federal firearms statutes.  HERE is a link to the transcript of the oral argument.
 

Other Cases of Note

Morales v. Mitchell, No. 00-3694 (6th Cir., November 2, 2007):  1) Habeas Corpus; Capital Habeas Cases; 2) Ineffective Assistance of Counsel:  Capital habeas case where the death penalty was vacated on the basis of IAC of trial counsel for failure to investigate and present mitigation evidence.

United States v. Bercier, No. 06-4125 (8th Cir., November 1, 2007):  Hearsay:  In this case involving a conviction for Aggravated Sexual Assault and Abusive Sexual Contact in Indian Country, the convictions are reversed because the District Court abused its discretion in allowing hearsay testimony by an examining physician recounting in considerable detail what the victim said in a hospital interview about the alleged assault.  NOTE:  This is a very good case that has applicability in Oklahoma sex cases because it is a very common tactic for the State to put on the victim and then parade a series of witnesses who offer nothing but testimony of what the victim said to them about the crime.  This is what happened in this case and the panel held this was error because the hearsay statements were offered as substantive evidence of guilt, not for the limited purpose of rehabilitating the credibility of the victim.

Lightbourne v. McCollum, No. SC06-2391 (Fla., November 1, 2007):  In the ongoing litigation over the lethal injection protocol, the Florida Supreme Court holds that the Florida procedure is constitutional.

United States v. Rosa, No. 05-3621-cr (2nd Cir., October 30, 2007):  Federal Sentencing Guidelines:  ACCA sentence of a mandatory minimum of 180 months is vacated where there was no evidence presented in the District Court to establish that a "guilty plea [resulting in a predicate state conviction] necessarily admitted, and supported a conviction for" a crime or "act of juvenile delinquency involving the use or carrying of a firearm...that would be punishable by imprisonment for [a] term [exceeding one year]," in violation of Shepard v. United States, 544 U.S. 13 (2005).

United States v. McKee, No. 05-3297 (3rd Cir., October 29, 2007):  Constructive Amendment:  Complicated tax case, but relief on some counts are obtained by arguing constructive amendment of the indictment that resulted in plain error.

United States v. Wilson, No. 06-6339 (6th Cir., October 29, 2007):  Searches and Seizures; Pat Downs:  Cops stopped a car upon observing that neither the driver nor the passenger was wearing a seatbelt.  The driver began "rambling" before finally admitting that he had served federal time on a gun charge and both were "acting extremely nervous."  When the car came back registered to someone else, the cops asked for consent to search which was given.  Wilson was patted down for officer safety, during which a package wrapped in gray duct tape fell from one of Wilson's pant legs and landed on the ground.  Wilson then kicked the cop in the shin and fled the scene.  HELD:  The District Court's order granting the suppression motion is AFFIRMED.  The panel stated:  "In sum, the government can point to no specific and articulable facts to justify the pat-down of Wilson on the basis of a reasonable suspicion that he was armed and dangerous [under Terry]."


Recommended Experts

Jaye Mendros, MENDROS & STOUT, OKC, needed a crime scene reconstruction expert recently and she hired OKCPD Detective David Feskanich to assist her.  Jaye reports that David has extensive crime scene/TI training and experience.  Jaye practices criminal defense here in Oklahoma and she recommends him.  You should consider him on your next case.
 
Jaye can be reached at 405.605.8639.  David's contact information is:

David L. Feskanich
5025 N.W. 19th Terr.
OKC, OK  73127
Phone:  405.917.7891
E-mail:  Fesk37.1@juno.com


Victories

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


Last Thursday was a banner day at the Oklahoma County courthouse:


TOMMY ADLER, OKC, convinced an Oklahoma County jury to acquit a 73-year-old man accused of manslaughter in the stabbing death of another man at a retirement home in 2005.  He asserted self-defense and that carried the day.  It probably did not hurt that the other man was younger (52), bigger and stronger, and was smoking crack cocaine when the client asked him to leave.  He refused and it ended badly.  Congratulations on a good win, Tommy!

JOHN W. COYLE, III, & BILLY COYLE, OKC, also heard the words "not guilty" from the jury foreman last Thursday in Oklahoma County when a former coach at a charter school as acquitted of sexually assaulting a 15-year-old girl.  The client testified in his own behalf and denied the allegations during the four day trial.  Another good win for JW! 

GARVIN A. ISAACS, NANCY A. ZERR, MARK HENRICKSEN, & MICHAEL R. WILDS, all represented OKC attorney David Autry in his contempt case, both at trial before judge Caswell and on appeal in the Court of Criminal Appeals where the Court, in the published opinion noted above, vacated the huge imposition of "costs" to the tune of over $13,000.00.  I am glad that these fabulous lawyers achieved such a good result for another fabulous lawyer defending a client charged with Murder in the First Degree and facing the death penalty.  Kudos to all!

MICHAEL D. ROBERTS, Enid, JAMES L. HANKINS, OKC, won a victory for nubile 18-21 year-olds in Garfield County by preserving their right to dance in a nearly nude state lawfully in the Fancy's opinion discussed above.  I assisted Mike on this case both in the trial court and in the Court of Appeals.  For some reason, the panel of the Court of Appeals scheduled this case for oral argument at OCU Law School.  This was quite a big deal for Mike and the city attorney, Carol Layman.  The place was packed with law students and the judges were very active in their questions on this subject.  Both Mike and Carol did a superb job under very stressful conditions!    




                    ------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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