Smith v. State, 2007 OK CR 16 (April 26, 2007):  Death Penalty; State Cases; Joinder:  This is an Oklahoma County death penalty case arising out of two separate murders committed by Smith, a member of the Crips.  The conviction and death penalty are AFFIRMED over several issues including:  1) Batson issues in jury selection; 2) jointer of the two, separate, murders into a single trial (the discussion of this issue is particularly instructive); 3) arraignment by a Special Judge (this is a local practice in Oklahoma County and the Court found no error); 4) Miranda issues; 5) the trial court's handling of jury questions; 6) the introduction of irrelevant and prejudicial evidence; 7) sufficiency of the evidence; 8) and sufficiency of HAC and other penalty phase issues.         

City of Elk City v. Taylor, 2007 OK CR 15 (April 23, 2007):  State Appeals:  The municipal court of Elk City is a court not of record.  Taylor was cited in that court with six counts of violating a city ordinance prohibiting inoperative junk vehicles from being kept closer than 50 feet to any street within the city.  The municipal court found him guilty of all six counts.  Taylor appealed to the district court in Beckham County and, after a trial de novo, the court reversed the findings of the municipal court as to counts 1, 2, 4, and 5.  The city then lodged an appeal seeking reinstatement of these four counts (someone in Elk City must really, really, really not like Mr. Taylor).  The city first went to the Oklahoma Supreme Court but was redirected to the Oklahoma Court of Criminal Appeals which promptly DISMISSED the appeal because under current statutes the city is not entitled to appeal (but a defendant would be).

Nehemiah Martin Hellems v. State, No. F-2005-784 (Okl.Cr., April 23, 2007) (unpublished order):  Deferred Sentences:  This case presents a procedural trap for appellate lawyers and trial lawyers alike.  Hellems plead no contest to KCSP and False Declaration of Ownership to a Pawnbroker and was given a 3 year deferred sentence.  Thereafter, the State moved to accelerate sentencing when Hellems committed another crime (A & B w/Deadly Weapon).  The only issued raised on appeal was that the sentence was excessive under facts.  However, the Court held that in an appeal of an order accelerating a deferred sentence, the excessive nature of the sentence cannot be considered; rather, the Court may consider only the validity of the acceleration order.  Beware!  NOTE/RANT:  the option for the appellant is to move to withdraw the underlying pleas and proceed with a certiorari appeal.  I am always mystified when the Court issues these types of holdings in UNPUBLISHED ORDERS rather than via a published opinion so we will all be made aware of this interpretation of the appellate rules.
             

Tenth Circuit

United States v. Rice, No. 06-5138 (10th Cir., April 23, 2007) (Published):  Searches and Seizures: Pat Downs & Traffic Stops:  Rice was in a car that was stopped by police at 2:30 a.m. for the crime of not having a tag light.  The car had two males in the front and a female in the back.  Rice was in the front passenger seat and provided the cops with an Oklahoma identification card.  The female in the back seat had no identification and gave the cop two different names when pressed to identify herself.  While writing a citation for the tag light, the returns came back with no records for the names given by the female and a notation that Rice had an extensive criminal record and was "known to be armed and dangerous."  The officer removed Rice from the car and conducted a pat-down search which yielded a handgun from Rice's pocket (not good for Rice since he had sixteen prior felony convictions).  The District Court GRANTED the motion to suppress on the basis of an improper pat-down frisk, but the circuit REVERSED the grant, holding that the officer's actions were reasonable because:  1) Rice was one of three persons in a car in a high crime area of Tulsa at 2:30 a.m. when no other cars or persons were around; 2) the car proceeded along two residential blocks, slowing intermittently in a manner that an observing officer thought consistent with preparing for a burglary or drive-by shooting; 3) the car did not have a tag light, which in the observing officer's experience could indicate a desire to avoid identification; 4) the passenger in the backseat had given what the officer believed to be false names intended to conceal her true identity; 5) the computer check confirmed the suspicion's of the officer about the female passenger when the search revealed no records in the database(!); 6) the computer check identified Rice as "known to be armed and dangerous"; 7) Rice had a lengthy and violent criminal record; and 8) Rice immediately assumed the position for a weapons search upon exiting the car.  The panel concluded that, taken together, these facts support the belief of the officer that a pat-down search was justifed for his own safety.

United States v. Andrus, No. 06-3094 (10th Cir., April 25, 2007) (Published):  Searches and Seizures; Apparent/Common Authority:  Andrus plead guilty, conditionally, to possessing child pornography, retaining the right to challenge his suppression issue on appeal.  Andrus showed up on the radar of the feds during an investigation of Regpay, a third-party billing and credit card company that provided subscribers with access to websites containing child porn.  Andrus was a subscriber under his own name and address in Kansas.  Agents did not have enough information for a search warrant so they decided to conduct a "knock and talk" in the hope of securing a consent search.  Agents conducted the "knock and talk" at 8:45 a.m. and the door was opened by Andus's ninety-one-year-old father who was still in his pajamas.  The father gave the officers permission to search the house and any computers in it.  Andrus's bedroom door was open and the father stated that he knocks when the door is closed but walks in when it is open.  A forensic computer expert analyzed the computer in Andrus's room which revealed later was subject to password protection.  The software used by the agents, EnCase, by-passed this feature and allowed the agent to search for .jpg images on the hard drive.  HELD:  2-1 that there was apparent authority to conduct the search of the computer based upon the consent of the father and thus no Fourth Amendment violation.  NOTE/RANT:  The majority analogized a home computer to a suitcase or footlocker that "command a high degree of privacy" and a computer password as a "lock."  The analysis by the majority is very weak, hinging almost entirely upon the silence of the ninety-one-year-old father to indicate to the cops that the computer was pass-word protected.  The majority stated that the cops did not have to ask about pass-word protection since there was no ambiguity(??)  This makes no sense at all under the facts of the case and Judges Murphy and Gorsuch just seem intent on affirming no matter what.  Judge McKay brings some sense to this opinion in his dissent which takes the majority to task for failing to acknowledge that pass-word protection is common.  He would institute a rule that the cops, if using software that bypasses passwords, must make a reasonable inquiry regarding the presence of password protection in third-party consent cases.

United States v. Cachucha, No. 06-2215 (10th Cir., April 26, 2007) (Published):  Prosecutorial Misconduct; Breach Plea Agreement: Plea Bargains: Cachucha was driving while intoxicated on Indian land and struck another vehicle resulting in a death.  He was indicted on a charge of involuntary manslaughter and entered a plea pursuant to a plea agreement.  At the time of the crime, the guidelines range was 10-16 months.  At the time of the plea, the range was 37-47 months.  The District Court sentenced Cachucha to 30 months, finding that the range of 10-16 months was not a reasonable sentence.  HELD:  the sentence is REVERSED and remanded for re-sentencing before a different judge on the basis that the Government violated the plea agreement by essentially arguing against the punishment range it agreed was applicable to the case (10-16 months).


United States Supreme Court

The Supreme Court issued three new death penalty decisions last week, ALL THREE reversing death penalty decisions in the courts below in Texas capital cases, one from the Texas Court of Criminal Appeals and the other two out of the Fifth Circuit.  All involve application of various legal rules and errors from the use of a jury instruction in Texas that has not been used since the early 1990s, so I do not think the cases have broad application to current law or to cases in other jurisdictions, but it sure looks like the Court is becoming frustrated with the way the Fifth Circuit and the Texas Court of Criminal Appeals have handled these issues.  Also note the sharp division on the Court as these cases are all 5-4 decisions.

Smith v. Texas, No. 05-11304 (U.S., April 25, 2007):  The Texas Court of Criminal Appeals erred in finding that a procedural default required Smith to show "egregious harm" rather than a lower standard of harmlessness.

Brewer v. Quarterman, No. 05-11287 (U.S., April 25, 2007):  The opinion of the Texas Court of Criminal Appeals denying relief on a Penry issue was both contrary to and involved an unreasonable application of clearly established federal law as determined by the Supreme Court (basically the jury instructions did not allow the jury to consider or give effect to the mitigation evidence).

Abdul-Kabir v. Quarterman, No. 05-11284 (U.S., April 25, 2007):  This case is very similar to Brewer, supra, and the Court finds a Penry error which should have been enforced by the lower courts.


Other Cases of Note

Ege v. Yukins, No. 05-2078 (6th Cir., April 24, 2007) (Published):  Bite Mark Evidence:  Erroneous admission of bite mark evidence was prejudicial to the defense and the state court erred holding otherwise.    


Hearsay

LETHAL INJECTION:  This article describes a "new medical review" that indicates drugs used to execute prisoners in the United States "sometimes fail to work as planned, causing slow and painful deaths that probably violate constitutional bans on cruel and unusual punishment[.]"  See also this ARTICLE.  

ANOTHER DNA EXONERATION:  This one involved a man who spent 25 years in an Illinois prison for rape.

"LOVE CONTRACTS":  This is an interesting article that describes contracts or legal waivers that companies use when employees are dating or sexually involved with one another.  The point is to protect the company against sexual harassment lawsuits.  I had never heard of these things. 




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

FRIDAY, MAY 4, 2007:  Expungements in Oklahoma.  This is a workshop presented by Kent Morlan and will be held from 12:00 to 1:30 in the Route 66 computer lab located on the first floor of the Downtown Metro Library in OKC.  RSVP to the Oklahoma County Law Library at 405.713.1355.  Judge Virgil C. Black, Oklahoma County, will be present for a Q&A session afterward.    

THURSDAY, JUNE 7, 2007:  Criminal Defense:  Pre-Trial Success.  This program will be held at The Embassy Suites Hotel, 1815 South Meridian, Oklahoma City, OK  73108, phone 405.682.6000.  It is presented by National Business Institute (NBI) and you can register on-line at www.nbi-sems.com.  Tuition is $309 and you can get 7.0 hours of CLE with 1.0 hour of ethics included.  Speakers include:  John W. Coyle, III, Gloyd L. McCoy, W. Devin Resides, Tracy Schumacher, and Steven Stice. 



SUBSCRIPTIONS: To subscribe click HERE