Marvin Royston White v. State, No. F-2005-110 (Okl.Cr., May 11, 2007) (unpublished):  DUI; Jury Instructions (Court's Failure to Instruct):  White was tried by jury in Grady County on three counts of First Degree Manslaughter (Misdemeanor DUI).  White was involved in a collision on November 23, 2003, that killed three persons near Tuttle, Oklahoma.  Associate District Judge John E. Herndon sentenced White to 20 years on each count in accordance with the jury's verdict, to be served consecutively.  At the time of the collision, White was driving home from a weekend hunting trip and had a BAC of between 0.08 and 0.09.  White's defense was that he did not drink any beer on the day of the collision, but he medicated himself with Equate Nite Time cold medicine which contained alcohol and he was unaware that it contained alcohol.  White denied that he was under the influence of alcohol at the time of the collision and asserted that he must have fallen asleep.  Trial counsel did not request instructions on involuntary intoxication.  In this 3-2 opinion, the Court REVERSED and remanded for new trial, finding PLAIN ERROR in the failure of the trial court to sua sponte instruct on the defense of involuntary intoxication(!!)  NOTE:  This is quite an amazing case.  I do not recall offhand any case in which the Court reversed on the basis that the trial court failed to instruct sua sponte (usually these types of instructional errors are waived if trial counsel does not request the instructions).  I suspect there is some aspect of the facts of this case which lead the majority to believe that the proceedings were unfair (there were many issues raised in addition to the one that resulted in reversal).


Tenth Circuit

United States v. Mahan, No. 05-1518 (10th Cir., May 16, 2007) (Unpublished):  Federal Sentencing Guidelines; Reasonableness:  Mahan plead guilty to felon-in-possession of a firearm and was sentenced 77-months.  Mahan asserted that he was assaulted by three men in a parking lot.  He obtained a shotgun and returned to the same parking.  He was noticed, the police were called, and he was subsequently arrested.  Defense counsel characterized Mahan's acquisition of the shotgun as an attempt to protect his wife.  The District Court stated that such crimes are essentially strict liability offenses and that the court could not consider the reasons why Mahan had the weapon for purposes of sentencing.  This view is in tension with the sentencing factors listed in 18 U.S.C. sec. 3553(a)(1) which require the court to consider the "nature and circumstances of the offense."  In this appeal, Mahan challenged his sentence on grounds of reasonableness and the panel vacated and remanded for re-sentencing on the basis that his sentence was "procedurally unreasonable" because the District Court failed to consider the nature of the offense.  NOTE:  The Circuit perceives a difference between "procedural" reasonableness and "substantive" reasonableness in these sentencing cases and imposes no presumption of reasonableness upon "procedural" reasonableness claims.

United States v. Hildreth, No. 06-3070 (10th Cir., May 14, 2007) (Published):  Federal Sentencing Guidelines; Reasonableness:  Hildreth was set-up in a sting when an undercover agent sold him some guns, one of which as an illegal machine-gun.  He went to jury trial on two counts and was convicted on one and acquitted on the other.  He was sentenced to three years of probation.  He raised an entrapment defense at trial and ended up pro se on appeal where the panel addressed two issues:  Hildreth's claim that the trial court erred in refusing to enter judgment of acquittal because he was entrapped as a matter of law; and the Government's claim that the sentence was unreasonable.  HELD:  Hildreth was not entrapped as a matter of law and the sentence was unreasonable (the Guidelines range was 27-33 months).  Remanded for re-sentencing.

Young v. Sirmons, No. 05-6282 (10th Cir., May 15, 2007) (Published):  Habeas Corpus; Capital Habeas Cases:  Oklahoma death row inmate Kevin Young is denied relief in the Circuit over claims involving:  1) sufficiency of the evidence to support his conviction; 2) failure to instruct on lesser-included offenses; 3) ineffective assistance of counsel during both stages; 4) and improper witness identification testimony.


United States Supreme Court

Schriro v. Landrigan, No. 05-1575 (U.S., May 14, 2007):  Habeas Corpus; Capital Habeas Cases:  This is another 5-4 opinion involving a death penalty case.  If you think you have a difficult client, just read the facts of this opinion.  Landrigan apparently obstructed his attorney's efforts to presence mitigation evidence on his behalf and told the sentencing judge to "bring on" the death penalty which, of course, the judge did.  Then, in post-conviction proceedings, Landrigan alleged IAC for failing to investigate and present mitigation evidence.  The federal District Court denied the claim in a habeas proceeding without holding an evidentiary hearing.  The en banc Ninth Circuit reversed with instructions for the District Court to hold an evidentiary hearing.  The Supreme Court reversed the Ninth Circuit, holding that the District Court did not err in failing to hold an evidentiary hearing because Landrigan could not establish prejudice under circumstances where he refused to allow any mitigation evidence to be presented.


Other Cases of Note

United States v. Martinez, No. 05-20330 (5th Cir., May 15, 2007):  Searches and Seizures; Traffic Stops:  Houston police officers, based upon a tip, suspected that Martinez had witnessed a violent crime and might possess the weapons used in the crime.  The tipster gave police a street address and said that Martinez was at the address with his girlfriend.  The police, rather than seek a warrant, set up a successful ruse to draw Martinez out of the house.  When Martinez and his girlfriend drove away the police stopped the car a few blocks away, put Martinez in the back seat of the patrol car, and asked the girlfriend for consent to search the home (which she gave).  The subsequent search yielded three firearms, but the tipster was wrong because the guns were not used in the crime and Martinez had in fact not witnessed such a crime.  However, he was an illegal alien and thus prohibited from possessing firearms.  The District Court suppressed his statements to police but not the guns and Martinez was convicted at a bench trial.  HELD:  The traffic stop was not supported by reasonable suspicion and the guns must be suppressed as the fruit of the poisonous tree. 

United States v. Sanders, No. 05-3133 (D.C. Cir., May 11, 2007):  Speedy Trial:  Convictions reversed with instructions to dismiss the Indictment based upon violation of the Speedy Trial Act and case remanded for a determination by the District Court whether such dismissal must be with or without prejudice.        


Victories

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


CHARLES FOSTER COX & JASON MURRY, OKC, won an acquittal in federal court before Judge Friot in a quirky case involving a mentally unstable client accused of making a threat to kill President Clinton.  The client went to a doctor's office in Edmond to make an appointment and proceeded to embark on a long rant in which he divulged that he was "double-married" to Paris Hilton, was employed as a CIA "black ops" agent, had a direct line to President Bush, and dined regularly with former President Bush at a steakhouse in Durant.  He also ranted about Democrats and President Clinton in particular, declaring that President Clinton was a mole planted by the Red Chinese army and that he was going to "pop a cap in Clinton's ass."  The subsequent psych-eval declared client insane.  Thus, Charles and Jason elected to try the case before Judge Friot on the issue of whether client was NG by reason of insanity or just plain not guilty on the facts.  The defense was that, even though client was clearly insane at the time, the speech was political in nature and thus protected by the Constitution in addition to the fact that client had no apparent means to carry out such a threat.  The first witness was the office receptionist who testified that the comments were traumatic for her because the doctor at the office had treated the Edmond Post Office killer, Patrick Sherrill.  She felt that the threats made by the client were real, that client intended to carry them out, and that she needed to call the police.  Charles informs me that she was even more dramatic on cross.  THEN the next two witnesses verified that client made the statements, but informed the court that witness number one was not even at work that day(!!!)  She had only heard about it second hand and got worked up about it when the witnesses who actually heard the statements did not feel it was necessary to call the police.  The clincher came when the Secret Service agent testified.  Judge Friot asked the agent if there was any way that he could find client guilty based upon the testimony and the agent replied, "No sir, I don't think you can."(!!!)  Charles relayed to me that he had not seen a federal case fall apart like that in a long time.  Very nice Charles and Jason! 

JAYE MENDROS, OKC, won a new trial on appeal for Mr. White in the amazing opinion discussed above, convincing the Court to reverse on instructional grounds when defense counsel failed to request instructions on involuntary intoxication.  This is a terrific appellate victory for Jaye!


Hearsay

ANOTHER DNA EXONERATION:  This one comes out of New Jersey where Byron Halsey was granted post-conviction relief after spending more than two decades in prison for the rape and murder of two children.  The DNA from the crime scene matched the DNA of a convicted sex offender who was a neighbor at the time of the murders.  Interestingly, the article indicated that Halsey confessed but defense attorneys questioned the legitimacy of the confession based upon the extended, 30-hour interrogation over a 40-hour period and the words used by Halsey.

CAPITAL PUNISHMENT FOR CHILD RAPISTS may become a reality soon in Texas under "Jessica's Law" which has been sent to Gov. Rick Perry who is expected to sign it into law.  If he does, Texas would become the sixth state to pass such a law.        



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


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.

THURSDAY, JUNE 28, 2007 & FRIDAY, JUNE 29, 2007:  The Patrick A. Williams Criminal Defense Institute.  This high quality CLE is sponsored by the University of Oklahoma College of Continuing Education and will be held at The Marriott in OKC.  I am scheduled to deliver the Court of Criminal Appeals Update on Thursday.  Contact Susan Dubbs in Norman at 1.800.522.0772 x.2891, or at 405.325.3386 or at sdubbs@ou.edu for more information.    



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