In Re:  Amendment of the Rules of the Court of Criminal Appeals, 2008 OK CR 9 (February 20, 2008):  This is a short correction order to the extensive amendments to the Court's Rules filed at the end of January, 2008.  This order corrects question number 37 on the Plea of Guilty Summary of Facts Form and allows the court to find that the defendant is committed to either the RID Program, the Regimented Training Program, or the Delayed Sentencing Program for Young Adults.  There has been some recent discussion on the OCDLA listserv about the prospect of "out of custody RID" or delayed sentencing without the client going to RID.  This addition to the court's powers on the plea form seems to contemplate that RID is a separate and distinct sentence from the Delayed Sentencing Program for Young Adults and thus the court can sentence a client under the DSPYA on a pure "paper time" basis.   


Tenth Circuit

United States v. Verdin-Garcia, No. 06-3354 (10th Cir., February 19, 2008) (Published):  Wiretaps:  Verdin-Garcia and a co-defendant were convicted of leadership roles in a large marijuana and methamphetamine trafficking conspiracy in and around Kansas City and were sentenced to life sentences as well as a multitude of lesser sentences.  AFFIRMED over claims relating to:  1) wiretap warrants under Title III (the Government satisfied its burden of showing "necessity" for the wiretaps); 2) the use by the Government of translations of the words spoken on the wiretaps; 3) the use of intercepted prison phone calls as voice exemplars (the Court held that the defendants were warned and thus consent was implied; 4) and the substantive and procedural reasonableness of the sentences.


United States Supreme Court

Danforth v. Minnesota, No. 06-8273 (U.S., February 20, 2008):  Retroactivity:  This is an interesting federal habeas opinion dealing with a retroactivity issue.  The rub here is that the Minnesota Supreme Court held that Crawford was not retroactive to cases on collateral review (which is in line with SCOTUS precedent) and also that it, as a state court, was not allowed to give a SCOTUS case more retroactive effect that SCOTUS.  On this point, the Court disagreed and reversed the judgment of the Minnesota Supreme Court, holding:  Teague was intended to limit the authority of federal courts to overturn state convictions---not to limit a state court's authority to grant relief for violations of new rules of constitutional law when reviewing its own State's convictions.  This was a solid 7-2 opinion (with Chief Justice Roberts and Justice Kennedy dissenting).


Other Cases of Note

Mitchell v. Jones, No. CIV-06-503-RAW-KEW (E.D. Okla., February 20, 2008):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  In this federal habeas case brought by an Oklahoma inmate, Mitchell alleged a Brady violation when the State failed to turn over a videotape of an interview with a co-defendant that had some very exculpatory information on it (this was admitted by the prosecutor).  One problem:  Mitchell filed his habeas petition more than four years after the one-year statute of limitations had expired.  Solution:  convincing Judge Ronald White that the Court of Criminal Appeals was incorrect in placing the burden of discovery of the videotape on Mitchell instead of on the prosecution.  Thus, because Mitchell could not have discovered the videotape (the factual predicate of the claim) through the exercise of due diligence prior to the expiration of the SOL, his petition is timely under 28 U.S.C. sec. 2244(d)(1)(D).

United States v. Langford, No. 06-2774 (3rd Cir., February 22, 2008):  Federal Sentencing Guidelines; Reasonableness:  Langford argued that the District Court calculated improperly his criminal history score (by counting a juvenile conviction that should not have been counted) and thus applied an erroneous Guidelines range as the first step in the sentencing process.  The Government argued that any error was harmless because the applicable Guidelines range overlaps with the correct range.  In this case, the split panel stated:  "We will join our sister courts of appeals who have decided this issue and hold that the error is not harmless."

United States v. Odeneal, No. 06-5885 (6th Cir., February 22, 2008):  Peremptory Challenges/Batson:  This is a solid Batson winner where the panel split 2-1, but the majority held that the prosecutor's race-neutral reasons fro striking black jurors were merely pretextual and thus the actual strikes were discriminatory on the basis of race.  Notably, the prosecutor struck one black juror who had sat on a jury and voted for acquittal in a "gun case" but for some reason did not strike a white juror who sat on the same jury.  Reversed and remanded for a new trial.

United States v. Murphy, No. 06-30582 (9th Cir., February 20, 2008):  Searches and Seizures; Consent:  In this case, the circuit applies the Supreme Court's decision in Georgia v. Randolph and reverses a district court denial of a motion to suppress when storage units were searched pursuant to permission from one person who had control over them, but another person who had control over them objected.  Notably, the objecting party was not physically present at the time of the search as in Randolph, but the panel held that his did not matter to the constitutional analysis.

Anderson v. Terhune, No. 04-17237 (9th Cir., February 15, 2008) (en banc):  Interrogations; Fifth Amendment:  In this habeas case, the Ninth Circuit en banc vacates a murder conviction on the basis that the state court unreasonably applied federal law by allowing police to continue questioning Anderson when he had twice made statements indicating that he did not want to answer questions and then said, "I plead the Fifth."  The California Court of Appeals held that this statement was ambiguous(!)  The Circuit basically ridicules the state appellate court in this regard and grants the writ.

United States v. Bell, No. 06-6248 (6th Cir., February 14, 2008):  "Bad Acts":  Conviction of Possession of Marijuana w/Intent is REVERSED on the basis that the District Court erred in admitting into evidence four prior state court drug convictions under Rule 404(b) for the purpose of proving absence of mistake or accident and intent.

Harris v. Carter, No. 06-35313 (9th Cir., February 8, 2008):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  This is a case where the panel grants Harris "equitable tolling" in order to allow him to file out-of-time his federal habeas petition because he relied on then-existing circuit precedent which was subsequently reversed by the Supreme Court.  Something tells me that we need to watch this case carefully because it might be short-lived.  I can see SCOTUS summarily vacating this opinion in the near future.


What Exactly is a Demurrer? 

This article is a little primer on the sometimes confusing roles of the "demurrer," the "motion to quash" and the "motion for a directed verdict."  As with many things in our line of work, the key to understanding these concepts, and which one to assert, is timing.

PRE-TRIAL:

Pre-trial, you can file a DEMURRER that attacks the Indictment or Information on its face (e.g., it charges more than one offense, the facts stated do not constitute a public offense, etc.)  These are filed pursuant to 22 O.S. sec. 504 on the grounds listed therein, and must be filed prior to the formal arraignment when your client enters his/her plea.  NOTE:  Do not let the client plead to the Information because this will waive all non-jurisdictional defects.  See White v. State, 1980 OK CR 10, 607 P.2d 713 ("When a defendant enters a plea of not guilty, that plea waives all defects except subject matter jurisdiction, or a failure of the indictment to state a public offense").
 
The pre-trial demurrer is very powerful because if it is granted, and the trial court does not direct that a new Information be filed, the order granting the demurrer is a bar to subsequent prosecution for the same offense.  Thus, the case is over right then and the State cannot appeal.  See State v. Young, 1994 OK CR 25, 874 P.2d 57; see also State v. Walton, 1925 OK CR 290, 236 P. 629 (a judgment sustaining a demurrer to the Information is far-reaching and conclusive as to the defendant's liability for the crime charged as though it had been rendered upon a verdict of not guilty; further, the trial court must direct resubmission of the case or the filing of a new Information contemporaneously with the sustaining of the demurrer or else the preclusive effects are final).

In contrast to the demurrer, a MOTION TO QUASH for insufficient evidence after preliminary hearing looks to facts beyond the face of the Indictment or Information.  See 22 O.S. 504.1.  NOTE:  You can file a motion to quash in misdemeanor cases also (see Young, supra).  Typically, in felony cases you will attach or cite to the preliminary hearing transcript in support of your motion to quash.  Unlike a demurrer, if a trial court grants the motion to quash, the state can appeal.  See State v. Davis, 1991 OK CR 123, 823 P.2d 367.

Like the demurrer, a motion to quash must be filed before a plea is entered or else such defects in the Information are waived.  Atkins v. State, 1977 OK CR 150, 562 P.2d 947; see also Primeaux v. State, 2004 OK CR 16, para. 18, 88 P.3d 893 (claim attacking the sufficiency of the evidence at preliminary hearing is preserved for appeal by a properly filed motion to quash prior to entering a plea).  In addition, a motion to quash must be VERIFIED or it is not properly before the court.  Atkins, supra.

NOTE ON VERIFICATION OF MOTIONS:  ALL MOTIONS raising fact issues shall be verified by a person having knowledge of the facts, if possible; otherwise, a verified statement by counsel of what the proof will show will suffice until a hearing or stipulation can be provided.  This is verbatim from Rule 4(c) of the Rules for the District Courts of Oklahoma.  This is one of those rules that most of us do not strictly follow (and I am guilty as anybody), but strictly speaking, if you raise fact issues in your demurrer, or a motion to quash, or a motion to suppress, etc., you should verify the pleading.  This was brought home to roost last year when a defense lawyer got hyper-technical in Washington County and moved to deem a motion confessed because the State did not file a written response within 15 days.  Judge Janice P. Dreiling then got hyper-technical on defense counsel because the motion to suppress was not verified pursuant to Rule 4(c).  This was the first time I had ever heard of a judge striking a motion because it was not verified, and I do not think most judges would do this, but it is an easily avoidable trap and we as a defense bar should start following this rule.

NOTE ON STANDING MUTE:  For a long time, I viewed as a good policy advising the client to stand mute at the arraignment under the theory that if he does not enter a plea, he does not waive any defects in the Information or Indictment.  However, I came across the case of In Re Habeas Corpus of William Carrell Pendygraft, 1968 OK CR 31, 438 P.2d 290, which seems to refute this notion.  Thus, unless someone can point me to some more recent case-law on this topic, we should take special care to make sure that our demurrers and motions to quash are verified and filed prior to the formal arraignment and prior to the time the client enters a plea.

TRIAL PROCEEDINGS:

Well, you verified your demurrer and motion to quash, filed them properly before the client entered his plea, but the trial court denied them (note also that, strictly speaking, motions are properly either granted or denied by a court; objections are either sustained or overruled;  I sometimes hear judges and lawyers say that a motion was overruled, but this is not technically proper).  So, you have to proceed to trial.

When the State finishes presenting its evidence, what do you do?  Demur to the evidence or move for a directed verdict of acquittal under 22 O.S. sec. 850?  Or both?  What about after the defense case?  What about after the State's rebuttal?  The early cases from the Court of Criminal Appeals have not been clear.

In fact, some early cases have stated explicitly that there is "no such thing as a demurrer to the evidence in a criminal case in Oklahoma."(!!)  See Bradley v. State, 1929 OK CR 286, 279 P. 920; see also Spencer v. State, 1917 OK CR 203, 169 P. 270 (stating that since demurrers to the evidence in criminal cases are not recognized by the criminal code, the Court will treat a demurrer as a motion for a directed verdict of acquittal); Renfro v. State, 1980 OK CR 6, 607 P.2d 703 ("A demurrer to the evidence (properly called a motion for a directed verdict) admits for the sake of argument the facts which the State's evidence tends to prove").

However, the Court of Criminal Appeals cleared up this confusion in 1995 in the case of Omalza v. State, 1995 OK CR 80, 911 P.2d 286.  In Omalza, the Court stated (apparently oblivious to the early cases of Bradley and Spencer and later Renfro) that the demurrer and the motion for a directed verdict of acquittal were "two systems of criminal procedure [that] have developed side by side to allow the defendant to challenge the sufficiency of the State's case."  The Court described the demurrer as "rooted deeply in the common law" whereas the motion for a directed verdict was a creature of statute (22 O.S. sec. 850).

Although they seem similar, the Court stated that the fact that "these two procedural tools have been used interchangeably for generations does not mean they are the same, nor does the fact that the trial court applies an identical analysis to determine whether either shall be granted."  How are they different?  

The key difference is that if a demurrer is granted, the count is dismissed right at that moment and it does not go to the jury.  In contrast, if a motion for a directed verdict of acquittal is granted, the count goes to the jury with instructions from the court advising acquittal but also advising the jury that it is not required to acquit.  

So, when do you demur to the evidence and when do you move for a directed verdict of acquittal?  Based upon my reading of Omalza and 22 O.S. sec. 850, here is what I advise:

1.  After the State rests its case-in-chief, defense counsel should both demur to the State's evidence and move for a directed verdict of acquittal.  As a practical matter, if the demurrer is sustained then the count is dismissed right then and does not go to the jury; thus, any motion for a directed verdict would be moot.  But, I see no reason to not urge both at this time.  You want the demurrer sustained because that takes it out of the hands of the jury.  Since the standard is the same for both, you will have an interesting appellate issue if the trial court grants a motion for a directed verdict of acquittal but denies your demurrer.  It does not appear to me that, under Omalza, a court can grant one but not the other.

2.  If the defense presents evidence, defense counsel should move for a directed verdict of acquittal after the defense rests.

3.  If the State presents rebuttal evidence, defense counsel should again both demur to the State's evidence and move for a directed verdict of acquittal.  NOTE:  This procedural posture is somewhat ambiguous insofar as applicability of a demurrer because once the defense presents evidence in the case such evidence is part of the calculus of determining whether the evidence is sufficient.  My feeling is that a demurrer is probably not proper, but in the absence of a case saying we cannot do it, I would go ahead and demur anyway.


Victories

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



DAVID OGLE, Ogle & Welch, P.C. in OKC, convinced federal district judge Ronald White in the Mitchell opinion featured above that the Oklahoma Court of Criminal Appeals applied the law incorrectly, thus saving the viability of his client's claim against an attack on statute of limitations grounds.  The one-year SOL under the AEDPA is pretty darn stout and it is quite an accomplishment when it is circumvented in favor of a client.  Terrific work, David!
 


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


THURSDAY, MARCH 6, 2008:  The Western District in OKC will hold demonstrations on its electronic case filing system beginning March 6, 2008, and continuing until June 4, 2008.  The schedule is as follows (all starting times are 9:00-10:30 a.m.):  March 6 & 27, April 3, May 8, and June 4, 2008.  The tuition is $20 and 2 hours of CLE credit is available.  Be sure to bring your photo ID or else you cannot enter the federal courthouse.  Contact Anne Ross at 405.609.5031 for details.

THURSDAY & FRIDAY, MAY 15 & 16, 2008:  The Oklahoma Criminal Defense Lawyers Association and the Oklahoma County Criminal Defense Lawyers Association presents THE SEX CRIME ACCUSATION---FIGHTING FOR YOUR CLIENT'S LIFE.  This CLE will be held at The Marriott Hotel, 3233 N.W. Expressway, OKC, OK (1.800.228.9290) and a seminar rate of $109 is available.  The seminar has been approved for 15 hours of CLE (including 1 hour of ethics).  A registration form and program can be found HERE.  This looks like it is shaping up to be a very good treatment on sex offense issues.  Presenters include yours truly.  I will deliver an update on COCA and legislative goings-on along with David Ogle on Thursday.  Other presenters include:  Cynthia Viol, Andrea Miller, David Smith, Jamie Vogt (Forensic Interviewer from Tulsa and for-hire expert that David and Josh have used before), Stanley G. Schneider (Houston, TX), Jamie Farrell (SANE nurse), Dr. Richard Kishur (the OKC sex offender evaluation guru), Robert A. Manchester, Inspector Les Little, Mary Long (OSBI who will discuss DNA issues), Tracy Schumacher, Jack D. Pointer, Julia Summers (Fed. PD here in OKC who will discuss the federal civil commitment law and presumably the case in which she persuaded Judge DeGuisti that her client was not a "sexually dangerous person"), and Jelpi Pichou (New Orleans).  Also, on Friday afternoon there will be panel discussion of the issues in YOUR cases (you can submit your problems to us by April 21).  Some of these luminaries as well as Tony Lacy will try to solve some of the practical problems that arise in real cases.  This one should be good.


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