Hollis v. State ex rel. Department of Public Safety, 2008 OK 31 (April 1, 2008):  DUI; DPS Administrative Hearings:  The District Court set aside the DL revocation on the basis that Hollis was incapable of providing a knowing and conscious refusal to the State's test because of extreme mental distress (his son, who had been in a coma for one year, had spoken the day before Hollis was arrested; but his wife called the day Hollis was arrested and told him that the boy's heart rate was high and that he needed to hurry home where his son was).  The only evidence presented was testimony by the arresting officer and Hollis.  The Supreme Court REVERSED, holding that a licensee cannot be allowed to use an emotional distress claim without supporting medical testimony when there is no obvious medical infirmity.  Thus, Hollis failed to produce sufficient credible evidence that he was mentally incapable of giving a knowing and conscious refusal.  NOTE:  In a footnote (no. 8) the Court stated:  "We do not decide here today that expert medical testimony must be presented in all cases in order to satisfy the licensee's burden.  Indeed, whether such testimony is necessary is a matter to be determined by the facts of a particular case."       

King v. State, 2008 OK CR 13 (April 4, 2008):  1.  Statutory Construction; 2.  Standards of Review:  King was stopped for following too closely on I-40 by Ronnie Jackson, an agent of the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD).  The traffic stop ended up with a K-9 alert and the subsequent discovery of 161 pounds of reefers in King's car.  King argued in this appeal that agents of the OBNDD do not have the statutory authority to enforce the traffic laws of the State of Oklahoma.  HELD:  That statutes grant OBNDD agents the authority to make traffic stops connected with their enforcement of the Controlled Substances Act.  NOTE:  The Court's decision seems to be logically indefensible.  King was stopped for following too closely on the interstate.  This traffic offense has no connection to the Act.  However, it is no surprise that the Court ruled the way it did.  A NOTE ON THE STANDARD OF REVIEW:  The Court, in its new Rules, has directed us appellate types to articulate the appropriate standard of review in the briefs.  In this case, the State urged the Court to apply an abuse of discretion standard in reviewing the decision of the District Court on a motion to suppress.  The Court rejected this standard, opting instead for one similar to the federal rule:  the District Court's findings of fact are reviewed for an abuse of discretion, while its legal conclusion is reviewed de novo.

In Re:  Adoption of the 2008 Revisions to the Oklahoma Uniform Jury Instructions, 2008 OK CR 10 (April 2, 2008):  The Court has tinkered with several of the OUJI-CR jury instructions:

1-5:  Voir Dire in capital cases by the trial court.  The changes in this instruction appear to be beneficial to the accused because the venireman is told that even if he finds that the aggravators outweigh the mitigators, he may still impose straight life or LWOP.

1-8:  Some technical additions; also, directs the jurors specifically to not read newspapers, watch television, listen to the radio, or obtain information from the internet about the case; or visit the crime scene on their own.

2-22:  Conspiracy Definitions:  Adding definition of Conspirator.

4-6:  A & B w/Deadly.  Updates the Committee Comments in light of Goree v. State, 2007 OK CR 21, which removed the element of intent to take human life.

4-57:  Crimes Against Unborn Children.  Deleting some superfluous definitional language.

4-57A:  Limitations on Injuries/Death of Unborn Child.  Technical changes.

4-57B:  Unborn Child Homicide--Causation.  Technical changes.

4-78:  Death Penalty Proceedings--Jury's Determination of Mitigating Circumstances.  In light of Harris v. State, 2007 OK CR 28, para. 26, clarifies that the jury may consider mitigators even though they do not reduce moral culpability for commission of the crime; and also, mitigators may lead "you as jurors individually or collectively to decide against imposing the death penalty."

4-110:  Kidnapping--Elements.  Adds a Fifth Element of "or, the victim was 12 years of age or less at the time of the offense."  [seemingly as an alternative to "against the person's will"]

8-33A:  Defense of Insanity.  New instruction explaining to the jury if it decides that the accused is insane at the time of the commission of the crime, he/she will not be released from confinement unless the court determines that he/she is no longer dangerous.

9-33, 9-34, 9-35, 9-36, 9-37, 9-38 & 9-39 are STRICKEN:  These instructions all deal with co-conspirator testimony.  In Pink v. State, 2004 OK CR 37, para. 28, the Court clarified that the independent corroboration requirement for accomplice testimony does not apply to co-conspirator testimony.  Thus, these instructions should not be given.

9-47:  Evidence--Refusal to Take Blood Alcohol Test:  This is a new instruction regarding refusal's and if such a refusal can be used as substantive evidence of guilt.


Tenth Circuit

Gilson v. Sirmons, No. 06-6287 (10th Cir., April 2, 2008) (Published):  Habeas Corpus; Capital Habeas Cases:  This a very lengthy (103 pages) capital habeas case out of Oklahoma involving the notorious murder of 8-year-old Shane Coffman.  The panel ultimately AFFIRMED the denial of habeas, but some of the issues are interesting; and, Judge Henry penned a dissent, finding a Beck error by the trial court's denial of a lesser crime instruction.  The first issue involved the quirky verdict form.  Gilson was charged under the child-abuse murder statute.  The jury was instructed Gilson could have committed First Degree Murder under this statute by engaging in child abuse himself or permitting the child abuse that led to the murder OR the jury could check the box to designate that it was "divided as to the underlying theory."  It checked the box indicating that it was divided as to the underlying theory. 
     This led the panel into a discussion of Schad v. Arizona, 501 U.S. 624 (1991), which I have found to be one of the most difficult cases to understand.  As I understand the panel's conclusion, it held that Oklahoma has defined First Degree Murder as including both actual infliction of child abuse that leads to death and also permitting such abuse (which is unique among the states, according to the panel at p.23); and such a definitional construction is consistent with Due Process under a Schad analysis because willful commission of abuse and willful permission of abuse are not so "disparate as to exemplify two inherently separate offenses."
     Other issues included:  1) an insufficient culpability claim under Tison/Enmund; 2) an Ex Post Facto claim regarding an after-enacted statute; 3) the trial court's refusal to instruct on lesser-included offenses (Judge Henry dissented on this claim); 4) preclusion of expert witness by the defense to testify regarding the credibility of the child-witnesses; 5) IAC in failing to introduce evidence of Gilson's brain damage.  AFFIRMED.

United States v. Eccleston, No. 07-2123 (10th Cir., March 31, 2008) (Published):  Concurrent/Consecutive Sentences:  Eccleston, a state prisoner convicted of both state and federal criminal offenses, filed a 2241 petition in federal court, asserting that although he is in state prison, he is entitled to go to federal prison and serve his federal sentence there, to serve his state/federal sentences concurrently, and that he is entitled to credit on his federal time for the time he has served in state prison.  HELD:  The 2241 application is dismissed with prejudice because it fails to raise any viable claim since the federal judgment and sentence fails to say anything about these issues.  NOTE:  Judge Lucero dissented.  In his view, he would decide only the issue decided by the District Court---whether Eccleston exhausted his administrative remedies (and he would affirm dismissal on that basis).

United States v. Kinchion, No. 07-6064 (10th Cir., April 1, 2008) (unpublished order and judgment):  Federal Sentencing Guidelines; Reasonableness:  Kinchion got walloped with a 352-month sentence on various drug and firearm charges.  This sentence is vacated and the case remanded for re-sentencing because the District Court applied a presumption of reasonableness to the within-the-Guidelines sentencing range in violation of Gall; thus, the sentence was procedurally unreasonable.

United States v. Lamy, No. 07-2048 (10th Cir., April 1, 2008) (Published):  1. Interrogations/Fifth Amendment; 2. Jurisdiction:  Lamy, 18-years-old, was convicted by jury of Aggravated Sexual Abuse in Indian Country in connection with a sexual assault on another teen who was unconscious because of drug/alcohol consumption.  AFFIRMED over his claims that:  1) his confession should have been suppressed because it was involuntary based upon his sub-average intellect (he was functionally illiterate and read at a second-grade level) and he could not intelligently waive his rights; 2) several improper statements by the testifying law enforcement agent prejudiced him; and 3) the Government failed to prove beyond a reasonable doubt that the crime occurred in Indian Country.

United States v. Worthon, No. 07-3122 (10th Cir., April 1, 2008) (Published):  Searches and Seizures; Standing:  There is no reason to suspect that the Circuit is interested in curbing pretext traffic stop and this case is no exception.  A local sheriff's deputy in Kansas became suspicious of two vehicles while stopped at a rest stop.  He radioed DEA who thereafter contacted KHP and requested that the vehicles be stopped "if the officer sees a traffic violation."  (what do you suppose the odds are that the Kansas trooper would see such an infraction?).  Lo and behold, the vehicles were stopped for "following too closely" and subsequently drugs were found in some duffel bags in the rental van driven by Worthon.  Worthon challenged the stop because when the deputy slowed down in traffic it caused traffic to slow down.  Thus, Worthon argued that the police contributed to the traffic violation.  The Circuit denied this contention on the basis that Worthon should have slowed down and followed at an appropriate distance.  But the really mystifying holding of this opinion is the way the panel analyzed the standing of both Worthon and a co-defendant to challenge the search.  A co-defendant in the case, who was a passenger in a different vehicle, was held to lack standing to challenge the search of Worthon's rental.  Unfortunately for Worthon, the rental he was driving did not list him as an authorized driver.  Thus, even though he asserted that the duffel bags were his, the panel held that, as an unauthorized driver, he had no standing to object to the search of the bags(!)  Ugh.

United States v. Sutton, No. 07-1223 (10th Cir., April 3, 2008) (Published):  Federal Sentencing Guidelines; Amount of Loss:  Over a several year period, Sutton purchased 76 "high-mileage" vehicles at auction and rolled back the odometers.  He also took various steps to conceal this.  His base offense level was only 19 which, combined with his criminal history category of I, resulted in a Guidelines range of 30-37 months.  However, the PSR whacked him with a 12-level increase by calculating a loss per vehicle of $4,000.00 which resulted in a total of $304,000.00 in loss for sentencing purposes.  Sutton countered with an alternate method of calculating the loss which was much lower than the PSR.  The panel, applying a clearly erroneous standard to the findings of fact by the District Court, found no error and AFFIRMED.

United States v. $148,840.00, No. 07-2142 (10th Cir., April 4, 2008) (Published):  Forfeiture; Standing:  David Austin was stopped for speeding in a rental car.  Things progressed as these things do and the police found the money in the trunk.  However, no other contraband was found in the vehicle and Austin refused to answer questions about the money without counsel.  He also maintained that the money was his.  Austin was given a receipt for the money and allowed to go on his way.  At the forfeiture hearing, Austin again claimed the money, but invoked his Fifth Amendment rights concerning all questions about its origins.  The Government filed a motion for summary judgment and the District Court granted it on the basis that Austin lacked standing to challenge the forfeiture.  REVERSED.  The panel held that, just as to the question of standing, his categorical claim of ownership of the money along with physical possession of the money when it was seized, was sufficient to establish standing.  The Court stated:  "As we view it, the government cannot prevent every person unwilling to completely explain his relationship to property that he claims to own, and that is found in his possession and control, from merely contesting a forfeiture of that property in court.  It may well be that forfeiture ultimately will prove appropriate, but we find it obvious that such a claimant risks injury within the meaning of Article III and thus may have his day in court.  We thus hold that when a claimant has asserted an ownership interest in the res at issue and has provided some evidence tending to support the existence of that ownership interest, the claimant has standing to challenge the forfeiture."


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Urrieta, No. 07-5431 (6th Cir., March 20, 2008):  Searches and Seizures; Traffic Stops:  A split panel reverses the denial of a motion to suppress in this case.  Urrieta was driving with his girlfriend and her 16-year-old on I-24 in Tennessee, towing another car and both cars were "fully packed."  He was stopped for minor traffic offenses.  Urrieta produced a Mexican driver's license which was legal in Tennessee, but the cop did not know this and asked Urrieta to produce a passport (which is not required).  The panel majority held that the cop had no reasonable suspicion to extend the stop beyond the scope of the traffic infractions.  The majority stated:  "Although the government finds it suspicious that Urrieta's cars were "fully packed" and that he was towing another car, we are puzzled as to why either of these factors suggests that Urrieta was transporting drugs."  NOTE:  Judge McKeague's dissent is particularly disturbing in light of the very weak facts he seems to think justifies a continued detention (e.g., both vehicles were fully packed with belongings, "the defendant did not seem to care about the way the Honda was being towed (e.g., he utilized a homemade towbar);" etc.)

United States v. Carty, No. 05-10200 (9th. Cir., March 24, 2008) (en banc):  Federal Sentencing Guidelines; Reasonableness:  In an opinion that could operate as a primer on the procedures of federal sentencing, the en banc Ninth Circuit declined to adopt an appellate presumption of reasonableness for sentences imposed within the Guidelines.  NOTE:  The Tenth Circuit has adopted such a presumption.

Whaley v. Belleque, No. 06-35759 (9th Cir., March 24, 2008):  Judicial Estoppel:  This concept prevents the government from taking inconsistent positions in a case.  Although the OCCA has generally allowed the State to get away with this, the federal courts police this activity a little better.  In this case, involving a state prisoner who filed a federal habeas action, the State argued in the Oregon state court below that Whaley's appeal was moot (to which Whaley did not object).  However, in federal habeas, the State argued that the claim was not moot and that Whaley is procedurally defaulted since he did not appeal to the Oregon Supreme Court.  The Circuit held that the State is judicially estopped from making this argument in federal court.  The case was remanded to the federal District Court to consider the merits.

United States v. Hairston, No. 05-5178 (4th Cir., April 3, 2008):  Guilty Pleas:  Guilty plea vacated when the trial court failed to inform Hairston of the mandatory minimum 15-year sentence before accepting his pleas, and this Rule 11 error was not harmless.  His guilty pleas and convictions are vacated and he is permitted to plead anew.

United States v. Gracia, No. 07-40245 (5th Cir., March 31, 2008):  Vouching:  Gracia was convicted at jury trial of drug related counts.  The panel reversed, finding plain error when the prosecutor bolstered improperly the Government's key witnesses during rebuttal closing argument:  the border patrol agents who heard Gracia's unrecorded confession.  The prosecutor told the jury:  1) the agents were "very, very credible"; 2) rhetorically, if the jury thought the agents, who were family men, from this area, and chose law enforcement as a career, would put their careers on the line by committing perjury; 3) "I'm going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered"; and 4) the prosecutor told the jury that, in order to convict Gracia, they would have to believe that the agents "got out of bed" on the day of the arrest and decided to conspire to wrongfully convict Gracia.


Victories

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


None reported.



Hearsay

INMATES SPEND ALMOST 36 YEARS IN SOLITARY:  Two prisoners serving time at the Louisiana State Penitentiary at Angola have been moved to a special dormitory after spending nearly 36 years in solitary, where they were confined in cells for 23-hours a day.  They were incarcerated in solitary for killing a prison guard, but still, that long in solitary seems inhuman.  How could a person keep from going insane?  Oklahoma death row inmates experience similar conditions, but typically have a cell-mate and none have spent that long on death row.  Louisiana is hardcore.



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


FRIDAY, APRIL 11, 2008:  The 2008 Oklahoma Forensic Academy will be held at the Moore/Norman Technology Center at 13301 S. Penn, OKC, OK.  The CLE has been approved for 8.5 hours of credit (including 1 hour of ethics).  Faculty includes:  Det. Tim Hoch (OKC PD), Paul Wallace (OSBI Lab), J. Robert Blakeburn (Dir. Board of Tests), Charles L. Sifers, Eddie Valdez (Assist. DA), Jim Drummond, Laura Schile, John B. Kwasnoski (Accident Reconstruction), Dr. Phillip Kemp (OSBI Toxicologist), Dan Murdock.  The schedule and registration form can be downloaded HERE.

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.

TUESDAY, JUNE 3, 2008:  Update to Oklahoma's Immigration Law.  This is an OBA/CLE webcast seminar.  It has been approved for two hours of CLE (0 ethics).  Cost is $100 and you can register on-line at:  www.legalspan.com/okbar/webcasts.asp.  Questions?  Call 405.416.7006.  Particularly relevant to us is a discussion of HB 1804.



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