The Court of Criminal Appeals has not issued any published cases in a while, but that is not to say the Court has not been busy.  Since my last issue the Court has decided approximately 20 cases via unpublished opinions and almost all of them were affirmed.  Some notable unpublished opinions are featured below:
 

Earnest Ray Kingery, Jr., v. State, No. F-2006-1015 (Okl.Cr., November 27, 2007) (unpublished):  "Bad Acts":  Kingery was convicted of Rape in Cherokee County and sentenced by the Hon. Mark Dobbins to seventy years.  Kingery apparently raped his two children, one boy and one girl.  He was charged originally with two counts, but one was dismissed at PH when the child did not testify.  However, at trial, the State proceeded on one count, but introduced the evidence and testimony on the other count as Burks material to show common scheme or plan.  The Court held that it was not error to introduce evidence of the second rape, but the manner in which the State did it, by presenting evidence of the second rape as if it was a second count, was unduly prejudicial.  Sentence modified to 25 years.  NOTE:  This opinion contains some very bad language in allowing the second rape.  The Court held the evidence admissible because of "the contemporaneous nature of the crimes and locations, the similarity of the acts, and the close relationship between the victims and Kingery, all suggest the existence of a common scheme or plan."  But, these are the very things that make the evidence unduly prejudicial.  Finally, this opinion was 3-2, with Judges Lumpkin and Lewis dissenting to the sentence modification.

State v. Evan Markel Clemons, No. S-2007-96 (Okl.Cr., December 12, 2007) (unpublished):  Searches and Seizures; Traffic Stops:  This case is a traffic stop search and seizure winner in a Trafficking case, but as with many of these unpublished opinions, this one might not be all that helpful on its face because there is virtually no discussion of the facts.  One thing is clear:  the State lost in front of Judge Charles L. Goodwin in Custer County, appealed, and lost again.  From footnote 1 we get this:  "Here, Clemons's detention exceeded that necessary for the purpose of the stop.  As the trial court found, there was no reasonable suspicion to justify Clemons's continued detention after the purpose of the stop had concluded.  As a result, the subsequent search and seizure were unlawful."  Also helpful is the State's proposition of error:  "Whether the district court erred in ruling that once the appellee denied consent to search his vehicle and indicated his desire to leave, an officer may not ask the driver for consent to run his canine, even though the officer was going to run his canine based upon reasonable suspicion." 


Tenth Circuit

United States v. Mumma, No. 06-3163 (10th Cir., December 7, 2007) (Published):  Federal Sentencing Guidelines; Reasonableness:  Mumma appealed her 48-month sentence for Bankruptcy Fraud and Making False Statement to a Financial Institution which represented a 300% and 36-month increase over the top of the Guidelines range.  The high sentence was a result of her prior record and the fact that she had defrauded others while out on bond.  AFFIRMED because the sentence was reasonable.

United States v. Galloway, No. 06-1487 (10th Cir., December 7, 2007) (Published):  Restitution:  Galloway was convicted by jury of multiple white-collar counts, including Conspiracy to Defraud the U.S., Wire Fraud and Aiding and Abetting, False Statements, etc. as part of a scheme involving mortgages and mortgage insurance.  He was sentenced to 12 months and 1 day in prison with 3 years supervised release and restitution in the amount of $29,359.20.  He attacked the restitution order in this appeal, arguing that the District Court used his gain from the crimes in order to measure the loss when the actual amount of the loss was unquantifiable based upon the evidence presented by the Government.  The panel vacated the sentence and remanded since the rule in the circuit is that "the use of a gain as an estimate of loss must be limited to transactions in which there was indeed a loss." 

United States v. Baker, No. 07-3002 (10th Cir., December 6, 2007) (Published):  1) Jury Instructions; Defense Requested Instructions; 2) Possession of Firearm by Felon:  Poor James Baker was sitting in a car in a parking lot in front of his stepdaughter's apartment complex.  A Wichita, Kansas, police officer on patrol noticed the car and thought it looked suspicious.  When the officer turned his lights on the vehicle, Baker got out and approached the officer.  The officer stopped him right there and a routine check on the vehicle revealed that the tag had been reported lost or stolen.  Baker also had two active city bench warrants for his arrest.  Now is when Baker's problems begin.  When the officer searched incident to the arrest, he found a six-round speed-loader in Baker's pocket (no gun, just the speed-loader).  It was discovered later that the ammunition in the speed-loader had been stolen earlier that night during a robbery of Doc's Steakhouse in Wichita.  Baker was charged with Felon in Possession of Ammunition and with Stolen Ammunition.  He went to trial on his theory that he found the ammunition on the ground after leaving a Halloween party at an apartment complex, he picked up the ammunition because he was worried that a child might find it.  As luck would have it, before he could turn in the ammunition to the police he was approached by the officer in the parking lot and arrested.  Baker requested an "innocent possession" jury instruction which the District Court denied.  He was convicted and sentenced to 235 months(!!)  The panel affirmed, holding that, although the circuit does recognize a "necessity defense" it is different from the "innocent possession" defense asserted by Baker.  The worst part if this decision is the discussion by the majority about how Congress intended almost strict liability in these cases and that liability for "Good Samaritan's" and unjust results can be safeguarded by "sound prosecutorial discretion."  (Ugh)  Also, Baker's prior does count under the ACCA because, even though his civil rights had been restored under Kansas law, his right to possess a firearm was not specifically restored.  NOTE:  Judge Holloway dissented and would follow the decision of the D.C. Circuit which recognized the "innocent possession" defense.


United States Supreme Court

The Supreme Court has finally given us (and the circuits) some firm guidance on what Booker really means as far as the discretion of the District Court to impose sentences in federal criminal case.  The details are in the cases below, but the bottom line is that federal sentencing seems to be more in line with state sentencing:  the District Court has very broad discretion that will not be disturbed on appeal (no matter whether the sentence is outside or within the Guidelines range) unless there is a clear abuse of discretion.  The Tenth Circuit, as well as the other circuits, had been addressing sentences on a sort of sliding scale, the further deviation from the Guidelines range the more extraordinary the justification had to be.  The Supreme Court has rejected this approach in the important cases below:

Kimbrough v. United States, No. 06-6330 (U.S., December 10, 2007):  Federal Sentencing Guidelines; Reasonableness:  This is the crack/powder cocaine case.  Kimbrough was looking at 15-life under the statute.  Since this was a "crack" case, the Guidelines called for 19-22.5 years.  The District Court, noting the unfairness of the crack/powder rule and that in a "powder" case the Guideline range would be 97-106 months, held that the statutory minimum (15 years) was long enough to accomplish the objectives of section 3553(a).  The Fourth Circuit vacated, finding that the outside the Guidelines sentence was per se unreasonable when it is based upon a disagreement with the sentencing disparity for crack and powder offenses.  The Supreme Court REVERSED, holding that the Guidelines are advisory and the Fourth Circuit erred in holding them effectively mandatory; and a district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in a particular case, a within-Guidelines sentence is "greater than necessary" to serve the objectives of sentencing.  NOTE:  Justices Thomas and Alito dissented.

Gall v. United States, No. 06-7949 (U.S., December 10, 2007):  Federal Sentencing Guidelines; Reasonableness:  The Syllabus of the Court sums up this case nicely.  Gall joined an ongoing enterprise distributing "ecstasy" while he was in college.  However, he withdrew from the conspiracy after seven months, sold no illegal drugs since, used no illegal drugs since and worked steadily since graduation.  Three and half years after withdrawing from the conspiracy, Gall pleaded guilty.  The PSR recommended 30-37 months, but the District Court sentenced Gall to 36 months probation, finding that probation reflected the seriousness of his offense and that imprisonment was unnecessary because Gall voluntarily withdrew from the conspiracy and his post-offense conduct showed that he would not return to a life of criminal behavior.  The Eighth Circuit reversed (as the Tenth Circuit would surely have done), holding that a sentence outside the Guidelines range must be supported by extraordinary circumstances.  The Supreme Court REVERSED, holding that "While the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, courts of appeals must review all sentences---whether inside, just outside, or significantly outside the Guidelines range---under a deferential abuse-of-discretion standard; and the sentence in this case was reasonable.  NOTE:  Justices Thomas and Alito dissented.  

Watson v. United States, No. 06-571 (U.S., December 10, 2007):  Statutory Construction:  Watson traded a pistol for some drugs.  Under 18 U.S.C. 924(c)(1)(A), it is a crime for Watson to "use" a firearm in relation to any drug trafficking crime.  HELD:  A person does not "use" a firearm under the statute when he receives it in trade for drugs.  The Court stated that the Government's position "lacks authority in either precedent or regular English."  Nice.

Logan v. United States, No. 06-6911 (U.S., December 4, 2007):  1) Federal Sentencing Guidelines; Crime of Violence; 2) Possession of Firearm by Felon:  This is a felon-in-possession of a firearm case in which Logan's sentence was enhanced because he had three convictions for violent felonies.  However, if one of the felonies was resolved in such a manner that the offender's civil rights have been restored, it is excluded.  In this case, Logan was convicted of three misdemeanor battery convictions under Wisconsin law and he challenged their use as enhancers because none of his civil rights were revoked as a result of these convictions.  However, the Court was not impressed and held that the statute is worded in terms of civil rights being "restored"; thus, the exemption does not cover the case of an offender who retained civil rights at all times and whose legal status remained in all respects unaltered by any state dispensation.


Other Cases of Note

United States v. Collins, et al., No. 05-4708 (7th Cir., December 14, 2007):  Searches and Seizures; Exigent Circumstances:  This is a very nice "Posner opinion" where the DEA tactical team went to a drug house without a warrant, but with a battering ram, where they waited about 20 seconds after knocking before breaking down the door and searching/arresting everything and everyone in sight.  Posner has a way with words and calls out the Government on several things in this case, holding ultimately that the entry was unconstitutional and the evidence must be suppressed.  There was no emergency that would allow the DEA to bypass the warrant requirement.  The DEA only heard movement within the house and a voice say "the police are at the door."  That's it.  Judge Posner explains all this with his usual flair.

United States v. Mannie, No. 06-1353 (7th Cir., December 12, 2007):  Trial Procedure; Disruptive Co-Defendant:  Poor Mannie was tried jointly with a co-defendant on conspiracy and drug charges.  Unfortunately, his co-defendant was a loon and engaged in "severe and violent disruptions during the trial" and also some jurors felt threatened by members of the gallery.  The panel found the trial as to Mannie was unfair and vacated the conviction and remanded for a new trial.

Crater v. Galaza, No. 05-17027 (9th Cir., December 6, 2007):  Habeas Corpus; AEDPA Deference:  This is an order denying rehearing en banc by the Ninth Circuit, but it is notable because of the dissent by Judge Reinhardt, joined by four other judges, in which he asserts that the AEDPA is unconstitutional insofar as it forces the federal judiciary to give deference to state court rulings which are, in the independent judgment of the federal court, simply wrong as a matter of federal constitutional law.

United States v. Zalapa, No. 06-50487 (9th Cir., December 5, 2007):  Double Jeopardy/21 O.S. 11:  The panel holds that a defendant who fails to object in the district court to multiplicitous convictions and sentences does not waive his or her right to raise a double jeopardy challenge on appeal; and in this case the district court erred plainly by sentencing Zalapa on mutiplicitous firearm counts. 

State v. Ellison, No. SC88468 (Mo., December 4, 2007):  "Bad Acts":  In a child molestation case, the introduction of a prior conviction for sexual abuse simply to show propensity of the accused to commit such acts violates the state constitutional guarantee that the accused shall be tried only for the offense for which he is charged. 

In Re Motion for Release of Court Records, No. MISC. 07-01 (U.S. For. Intel. Surv. Ct., December 11, 2007):  Foreign Intelligence Surveillance Court:  The ACLU requested the release of court records from the Foreign Intelligence Surveillance Court.  In this Memorandum Opinion, the motion is denied, but the opinion is noteworthy for its thorough treatment of the nature of the Court and for the fact that this is only the third published order from the Court in its history.

United States v. Richter, No. 06-1930 (2nd Cir., December 4, 2007):  Writ of Audita Querela:  This is a very odd case involving a "writ of audita querela."(??)  I had never heard of such a thing.  According to the court, "The writ of audita querela is available where the absence of any other avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues."  The court held that the claim raised in this case, asserting a Booker claim, does not meet this requirement because Booker does not apply retroactively to cases on collateral review; therefore no serious constitutional questions are raised.  Still, if you want to delve into the minutia of esoteric writs, this looks like a good one.

Garrison v. Ward, No. CIV-04-218-FHS-KEW (E.D. Okla., July 20, 2007):  Ineffective Assistance of Counsel:  Garrison was convicted of murder in Oklahoma and, after getting no relief from the state courts, pressed his claims in the federal courts.  In this Report and Recommendation, Magistrate Kimberly E. West recommends the writ be granted on IAC claims that counsel failed to present evidence of mental health status and also the trial court failed to give a lesser crime instruction.  Judge Seay agreed with the Report and issued the writ.  The State did not appeal and Garrison is going to get a re-trial.


Juror Questionnaires

Michael D. Morehead, OIDS Capital Direct Appeals Division, has brought to my attention a possible issue concerning the appellate use of juror questionnaires.  He has a case where the trial judge promised that the questionnaires would be destroyed, except for those of the actual jurors who sat on the case and then only for appellate purposes. 

The problem is that all the questionnaires are arguably relevant to Batson claims and/or cause challenges or other issues.  The Court of Criminal Appeals has not established procedures governing the retention of such questionnaires or how they are to be kept for purposes of the appellate record.  My feeling is that judges do not like to divulge these questionnaires; so, if you have a case where you have used them, it will be up to you to make sure that they are kept for inclusion in the trial record and thereafter included in the record on appeal.  

Probably the best way to handle this issue is to have a hearing and make sure the trial judge knows what you want and can make sure any appropriate protective orders are in place prior to trial so there is no ambiguity about what happens to the actual questionnaires after the trial. 


Victories

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



MICHAEL ARNETT, OKC, won a suppression motion before Judge Goodwin in Custer County, then vanquished the State again when prosecutor Stephanie Jones appealed!  Very nice, Mike! 

KIM BAZE, OIDS, deserves some mention for her efforts in the Garrison case, featured above, in which she was instrumental in preparing the extra-record facts of IAC which carried the day with Judge Seay in the Eastern District when he granted the writ!  Excellent work, Kim! 

S. GAIL GUNNING, OIDS, transformed the 70-year sentence for Mr. Kingery into a 25-year sentence on appeal.  Very nice, Gail!

STEVE STICE, Norman, won a not guilty in a Lewd Mo case Friday, December 7, 2007.  I am informed that the client testified (and had priors), but the best part was that the jury was out for two hours, primarily to get that state-paid free dinner; or else they would have returned in about 30 minutes!  Terrific job, Steve!


Hearsay

DEATH ROW IN JAPAN:  This is an interesting article from the BBC about death row in Japan.  Suffice it to say that the Japanese do not have any problems with last-minute appeals like we have here in the U.S.

N.J. STATE ASSEMBLY VOTES TO ABOLISH the death penalty.  Gov. Jon Corzine has indicated that he will sign the bill.  If he does so, N.J. would become the first state in 40 years to outlaw capital punishment.

THE MITCHELL REPORT:  This link goes to the lengthy report prepared by former Senator George Mitchell on all the steroid use in Major League Baseball.  It is striking how the Player's Union stonewalled the entire investigation and continues to do so.  Also, HERE is the Indictment against home run king Barry Bonds for lying to a grand jury.



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

TUESDAY, JANUARY 8, 2007:  OIDS is sponsoring a seminar from 11:00 a.m. to 3:00 p.m. (note the time change) in Room 104 of the State Capitol Building.  The seminar will focus on the use of the ABA Guidelines in capital cases and the importance of mitigation evidence.  Presenters include Robin Maher, Director of the Death Penalty Representation Project, and Russ Stetler, an experience capital case litigator.  OIDS is in the process of obtaining CLE approval.  You can obtain the registration form HERE.

TUESDAY, JANUARY 8, 2007:  The death penalty case of Littlejohn v. State will be argued at the Court of Criminal Appeals at 10:00 a.m.  Defense counsel is David Autry.  If you have an argument coming up or just want to see a good lawyer argue a case before the Court, this would be a good one to see.




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