Hogg v. State, 2008 OK CR 8 (February 13, 2008):  Contempt:  Vanessa Hogg was held in contempt of court by Judge Tammy Bass-Jones (Lesur) in Oklahoma County because she willfully refused to retain counsel in an underlying criminal case.  VACATED and DISMISSED because the record was "sketchy" (shocking) and supported neither that Hogg's actions were willfully contemptuous nor that Judge Bass-Jones gave her a warning prior to holding her in contempt.

Lay v. State, 2008 OK CR 7 (February 12, 2008):  Death Penalty; State Cases:  First Degree Murder and death sentence out of Tulsa County AFFIRMED over largely undisputed facts and claims attacking the sentence.  Lay and his son attempted a bank robbery in Tulsa and ended up in a gun battle in which a security guard was killed.  Lay represented himself and asserted on appeal that he had no right to pro se representation during the sentencing phase of a capital trial.  The Court disagreed, but issued a rule in this case that requires the trial court to appoint stand-by counsel for pro se defendants in capital trials.  The Court also refused to grant relief on claims of juror misconduct in failing to divulge knowledge of Lay's wife and in failing to allow Lay to present a "necessity defense" even though it appears that the trial court allowed most of it.  Lay asserted that he and his son needed to rob the bank in order to obtain money to buy guns so they could stop government atrocities.  It appears Lay was trying to overthrow the current federal government.  For some reason, the Court did seem too receptive to this claim.  Probably the true import of this case is that the Court held that OUJI-CR 4-77 is still required even though Easlick v. State appeared to invalidate it (it involves the explanation of how aggravating circumstances are to be found and that if the State relies on circumstantial evidence it must be inconsistent with any reasonable theory or conclusion other than the existence of the aggravator).   

Charles Thompson v. The City of Oklahoma City, No. M-2007-0118 (Okl.Cr., February 13, 2008) (unpublished):  Public Intoxication:  I love this case!  Thompson was inside a large suite at a hotel in OKC.  He rented the suite to host a youth football team while they ate pizza and watched film for the championship game the next day.  Although about 21 kids had been in the suite earlier, all of them were picked up by parents at around 10:00 p.m.  This left Thompson and six or seven adults in the suite to make banners and talk about the game plan.  At around midnight, police knocked on the door in response to a "noise complaint."  The cops said that Thompson was belligerent and that they could detect a strong odor of alcoholic beverage on his breath.  When Thompson stepped across the threshold of his suite door and into the landing, the cops immediately placed him under arrest for public intoxication (Thompson and three other adults who were in the suite testified that no on was drinking; and the cops found no visible evidence of alcohol).  The case went to trial in Oklahoma City municipal court before judge William J. Manger who found Thompson guilty and fined him $69.00.  In this appeal, the Court REVERSED with Instructions to dismiss because "the evidence does not show Appellant was drunk in a public place."

E.A.L.S. v. State, No. J-2008-36 (Okl.Cr., February 7, 2008) (unpublished):  Juvenile/Youthful Offender:  In this juvenile case, the juvenile appealed an order of the district court certifying him to stand trial as an adult on a charge of First Degree Manslaughter.  However, the district court vacated the juvenile's indigent status upon learning that he was admitted to bail in the amount of $10,000.00.  The juvenile contends that he is indigent and simply had the assistance of his brother to bail him out.  The district court was under the impression that the financial status of the parents was relevant since the accused was a juvenile and the parents were responsible for him.  The Court disagreed and reversed with instructions for the trial court to appoint counsel.  The test for indigence is personal to the Defendant.

MORE ON SEX OFFENDER REGISTRATION:  In the extensive changes to the Court's Rules issued recently, we might want to take note that the Court has added quite a few questions to the mandatory plea form (Form 13.10), including questions designed to make sure the Defendant understands if the crime is an 85% crime, is subject to sex offender registration, and has any earned credit restrictions (see the new question 14 on the form).  This is very interesting because it seems to suggest that these things are punitive and part of the sentence and, thus, the Defendant must be aware of them in order to make the plea knowing and voluntary.  This also suggests that JURIES should be made aware of these restrictions on the actual length of incarceration as well in the form of a jury instruction.  In the area of sex offender registration, the Court has been reluctant to hold such instructions mandatory but I am not aware that the Court has been presented with a proper case in which the issue was preserved at trial with a requested instruction.  In Derek Tewinin Edmonds v. State, No. F-2007-220 (Okl.Cr., May 14, 2007), Judge Chapel opined that the issue is "live" in a proper case.

Also, HERE is an interesting chart assigning various sex offenses to a level of registration. 


Tenth Circuit

Darwin Desmond Brown v. Sirmons, No. 06-5071 (10th Cir., February 5, 2008) (Published):  Habeas Corpus; Capital Habeas Cases:  Oklahoma capital habeas case affirmed over several claims of constitutional error.

United States v. Todd, No. 06-6334 (10th Cir., February 12, 2008) (Published):  Federal Sentencing Guidelines:  This case presents the issue of a proper calculated Guidelines range even under the new sentencing regime heralded in Gall.  Here, Todd admitted to dealing 680.4 grams of meth, but the District Court used only the 37 grams recovered in calculating the base offense level.  The discrepancy in the Guidelines calculations is quite large (188-235 months as opposed to 77 to 96 months).  The panel, upon the Government's appeal, remanded for re-sentencing upon finding that the mis-calculation was not harmless.


United States Supreme Court

No new cases.


Other Cases of Note

Tassin v. Cain, No. 07-70013 (5th Cir., February 14, 2008):  Prosecutorial Misconduct; Brady Issues:  Grant of habeas relief is AFFIRMED in this capital murder case involving a state court conviction where the State suppressed evidence that a witness had a sentencing agreement and argued to the jury that the witness had "no deal" and no reason to lie.

State v. Mata, No. S-05-1268 (Neb., February 8, 2008):  Death Penalty:  The Nebraska Supreme Court declares that the use of the electric chair as a method of execution is "cruel and unusual punishment" in violation of the Nebraska Constitution.

Reliable Consultants, Inc., v. Ronnie Earle, No. 06-51067 (5th Cir., February 12, 2008):  The Fifth Circuit holds that the people in the Great State of Texas can now use sex toys under the Fourteenth Amendment.  I was wondering if there was some discussion among the judges about whether to actually issue the opinion on Valentine's Day, but I guess they thought it would better to issue it two days before.

State v. Audrey A. Edmunds, 2008 WL 249090 (No. 2007AP933, Wis. App., January 31, 2008):  Shaken Baby Syndrome:  This is an interesting case brought to my attention by Stephen Jones, Enid, in which the Wisconsin Court of Appeals granted relief in post-conviction proceedings to a woman in a "shaken baby" case.  The Court stated, "A debate has developed in the medical community over whether babies can be killed by shaking alone, how long they can live with traumatic head injuries, and whether similar symptoms can be caused by other factors."  According to Stephen, this is the first court of which he is aware that has publicly recognized the shift in medical opinion away from the old pediatric theory that a person can shake a baby to death to the neurosurgeon-pathologist view that a person cannot, absent head trauma.  This opinion presents some good ideas for cross-examination of you have a pending shaken-baby case. 


Victories

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



MICHAEL S. JOHNSON, OKC, represented Mr. Thompson in Oklahoma City municipal court on a charge of Public Intoxication and Thompson was hit with a whopping $69 fine.  This will not stand!  And, indeed, it did not, as Michael took the case to the Court of Criminal Appeals where it was promptly reversed and remanded with instructions to dismiss!  Very nice, Michael!
 
CHERYL RAMSEY, Stillwater, reported that she was in a non-jury trial in Delaware County in a Negligent Homicide case when Judge Alicia Littlefield halted the proceedings abruptly in a good way when she sustained Cheryl's demurrer!  Very nice, Cheryl!
 


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