Lacy v. State, 2007 OK CR 20 (May 23, 2007):  1. Jury Instructions; Defense Requested Instructions; 2. Double Jeopardy/21 O.S. sec. 11:  Lacy was convicted by a jury in Payne County before the Hon. Donald Worthington of:  I) Procuring Child Pornography; II) Distributing Child Pornography; and III & IV) Contributing to the Delinquency of a Minor.  The Court held that the convictions on counts II & III violated the prohibition against double punishment for a single act and therefore Count III is reversed with instructions to dismiss.  The State had plead specifically, and the evidence showed, that Lacy asked his 14-year-old daughter to distribute fliers with the victim's photograph at a high school.  The Court also granted sentencing relief for a violation of the 85% Rule jury instruction.  Lacy's convictions were after former conviction of a felony.  The State argued that since he was sentenced under the general enhancement statute no 85% instruction was required.  There was some support for such a position in Coates v. State, 2006 OK CR 24, 137 P.3d 682.  However, the Court clarified that Coates did not involve an 85% Rule crime at all (therefore no instructional error) and the dicta in Coates that would support the State's position is clarified in favor of a simple rule:  "Juries should be instructed on the 85% Rule in every case in which it applies, including cases where a defendant's sentence is enhanced under section 51.1."

Goree v. State, 2007 OK CR 21 (May 23, 2007):  Jury Instructions; A & B w/Deadly Weapon:  Goree fired several gunshots into a crowd of partygoers in front of a house, injuring two of them.  He was convicted of two counts of Assault & Battery with a Deadly Weapon and one count of Intentional Discharge of a Weapon into a Dwelling.  The Court published this opinion to clarify the jury instructions and elements of Assault & Battery with a Deadly Weapon under 21 O.S. 652(C), holding that the crime does not contain intent to take a human life as an element.  OUJI-CR 4-6 is thus ordered modified to reflect this change.

Gregory Scott Thompson v. State, No. F-2006-68 (Okl.Cr., May 22, 2007) (unpublished):  Jury Instructions; Defense Requested Instructions:  Thompson was convicted in Oklahoma County of Murder in the First Degree and sentenced to LWOP.  The Court modified the sentence to straight life imprisonment on the basis that the jury was not given the 85% instruction.  Significantly, the jury sent a note during deliberations which asked, "How long must you serve before getting paroled on a life sentence?"  These types of jury questions, along with preservation of the issue by defense counsel, are a good recipe for appellate relief.    
 
Sylvia Coronado Frias v. State, No. F-2005-718 (Okl.Cr., May 24, 2007) (unpublished):  Frias was convicted in Oklahoma County of Trafficking and sentenced to 20 years.  Judge Jerry Bass, for reasons unexplained, imposed sentence of 25 years (apparently a misunderstanding of the jury verdict).  The Court remanded with instructions to impose the jury sentence.  The Court also addressed a claim that the jury should have been instructed that, in trafficking cases, the prison terms are not subject to deferral, suspension, or certain earned credits.  The Court held it was not error to refuse such an instruction, thus declining to extend the rule in Anderson to this context.  PROCEDURAL TRAP ON APPEAL:  Appellate counsel apparently tried to raise some claims of juror misconduct and IAC by attaching affidavits to the Brief-in-Chief.  The Court refused to consider the affidavits because they were not properly raised either in a motion for new trial or an application for an evidentiary hearing under the Court's rules.

Larry Roger Watts v. State, No. F-2005-963 (Okl.Cr., May 25, 2007) (unpublished):  Drive-by Shooting; Sufficiency of the Evidence:  Interesting case where the Court characterized drive-by shootings as "indisputably a crime against the person" and thus unsustainable in a case such as this one where "there were no persons in the building, in front of it, or anywhere near where the shooting took place.  As such, the conviction for that crime cannot stand."


Tenth Circuit

Howard v. United States Bureau of Prisons, No. 06-3315 (10th Cir., May 23, 2007) (Published):  Right to Present a Defense:  Federal prisoner was disciplined for having contraband.  In this opinion, the panel vacated the dismissal of his habeas petition on the basis that prison officials refused to produce and review a videotape which Howard asserted would exonerate him, thus violating his due process right to present evidence in his own defense.

United States v. Ahidley, No. 06-2056 (10th Cir., May 25, 2007) (Published):  Restitution:  In this case, Ahidley was ordered to pay restitution under the Mandatory Victims Restitution Act of 1996 (18 U.S.C. 3663A).  However, the trial court ordered the restitution to be paid immediately in a one-lump sum.  The circuit panel reversed this order and remanded with instructions for the trial court to impose an appropriate payment schedule based upon the factors in section 3664(f)(2).


United States Supreme Court

Roper v. Weaver, No. 06-313 (U.S., May 21, 2007):  The Eighth Circuit, in applying the AEDPA, held that a prosecutor's closing argument was "unfairly inflammatory" to the extent that the death penalty was vacated.  The State of Missouri did not like this result and petitioned the Supreme Court to reverse.  The Supreme Court granted certiorari to decide this issue, the case was briefed, and oral arguments were had.  In this opinion, the Court dismissed the cert. grant as improvidently granted because Weaver's co-defendants obtained relief on this issue in pre-AEDPA cases and Weaver's case was governed by the AEDPA because of a faulty ruling by the District Court.  Thus, the Court recognized that application of the AEDPA would require deference to the state court decision and likely result in the death penalty for Weaver while the others would avoid it through happenstance.  This result fairly made Justice Scalia livid and he penned a scathing dissent, joined by Justice Thomas and Justice Alito.  Justice Scalia's opinion describes the opinion below as "grossly erroneous precedent" in the Eighth Circuit and warned other courts to ignore it.  It is fairly alarming to read the manner in which Justice Scalia expresses such disappointment in being denied the chance to uphold a death sentence, describing the Court's dismissal as "a rare manifestation of judicial clemency unrestrained by law."


Other Cases of Note

Kopsho v. State, No. SC05-763 (Fla., May 24, 2007):  Jurors:  Kopsho was tried by jury in Florida and convicted of Armed Kidnapping and First Degree Murder of his wife.  The Florida Supreme Court reversed and remanded for a new trial because of the trial court's refusal to grant a challenge for cause to a potential juror based upon the views of the juror regarding a defendant's right to not testify at trial (the venireman expected the defendant to take the stand because he "would like to hear his side" and expressed uncertainty if he could be fair if the defendant did not do so).  Kopsho was able to show prejudice because he used a peremptory challenge to strike the juror, then ran out of peremptory challenges, and requested another peremptory to challenge a veniremen who actually sat on the jury.  This is the KEY to winning these issues on appeal and making a record.  You will basically have to show that an unacceptable juror sat on the actual jury and that you used all your peremptory challenges and requested additional challenges and were denied.

Offord v. State, No. SC05-1611 (Fla., May 24, 2007):  Death Penalty:  Capital case involving a guilty plea to murder by Offord, who killed his wife with a claw hammer.  Offord had a long history of serious mental illness.  In this opinion, the Florida Supreme Court vacated the death penalty because it is disproportionate in this case where the only aggravator was "heinous, atrocious, or cruel" and measured against significant mitigation evidence (primarily in the form of mental health issues).

United States v. Quirante, No. 06-13527 (11th Cir., May 21, 2007):  Federal Sentencing Guidelines; Safety Valve:  The Eleventh Circuit, in accord with the Second and Ninth Circuits, holds that the application of the "safety valve" is mandatory in federal sentencing calculations, not discretionary.  As the court put it, the District Court erred in believing that the safety valve provision is "precatory not mandatory, a suggestion not a command."

United States v. Amico, No. 03-1737-cr (2nd Cir., May 23, 2007):  Judges/Bias/Recusal:  Amico and a co-defendant were convicted on charges arising out of a mortgage fraud scheme.  The panel vacated the convictions in this case on the basis of the appearance of judicial partiality and failure to recuse because the Government's key witness was a mortgage broker who assisted in the preparation a mortgage application for the trial judge years before (Judge Siragusa in New York).

United States v. Curtin, No. 04-10632 (9th Cir., April 4, 2006):  Conviction of one count of Travel with Intent to Engage in a Sexual Act with a Juvenile is reversed because the Government was allowed to introduce incest-related stories/literature at trial as improper character evidence.  This is a very lengthy 2-1 opinion.
 

LOUISIANA UPHOLDS DEATH FOR CHILD RAPIST:

State v. Kennedy, No. 2005-KA-1981 (La., May 22, 2007):  This is the first appellate opinion from a state court of last resort upholding a death sentence in a case of child rape which did not result in the death of the child.

 

The Oklahoma Court of Criminal Appeals recently decided that jurors must be instructed on the 85% Rule where it applies in order to more fully inform the jury of the consequences of its sentencing determination and to deter "rounding up" of sentences on the mistaken belief that the accused will be released much sooner than he actually would.  See Anderson v. State, 2006 OK CR 6.  Do the same policy considerations apply in sex-offense cases where the accused, if convicted, must register as a sex offender?

Thus far, the Court has balked at requiring such an instruction.  However, in a recent unpublished opinion, Judge Chapel opined that sex offender registration is not a collateral consequence of conviction but rather involves substantial restrictions upon the liberty of the accused and thus should be considered punitive and part of the sentence.  See Derek Tewinn Edmonds v. State, No. F-2006-220 (Okl.Cr., May 14, 2007) (Chapel, J., specially concurring). 

Edmonds raised the issue on appeal but notably this issue was not raised in the trial court and an instruction was not requested by trial counsel.  Thus, review was for plain error and the Court was unwilling to go down that road in a case where the issue was not preserved properly.

Mark Hoover at OIDS has indicated the issue has been raised in other cases with no good results but Judge Chapel's position may be stronger now in light of the tightened restrictions on sex offenders and where they may live.  One thing is clear:  the defense bar has no chance at this issue unless the Court is presented with a "pristine" case, one in which a written jury instruction is proposed and rejected by the trial court (and preferably with some sort of jury question on this subject).  So, be mindful of this issue the next time you try one of these cases and make a good record. 


Victories

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



KEITH BERGMAN, Tulsa, won an acquittal in Judge Kellough's courtroom for a client charged with Stalking a local television news reporter.  Keith was able to discredit the reporter, Kim Jackson from KTUL Channel 8, in the face of what appeared to be strong evidence of Stalking from six cops, threatening voice messages, and an allegation that client wrecked her car while chasing her (with photos of the damage to the car).  Oh, did I mentioned that this is the same client that Bergman and James Linger acquitted in a capital murder case a few months ago?  Amazing string of victories for the client and excellent advocacy by Keith!   

WINSTON H. CONNOR, II, Miami, OK, scored a superb win in Delaware County before the Hon. Robert G. Haney.  Client was charged with Manslaughter in the First Degree in the deaths of three persons who were killed in an airplane crash.  Client was apparently the pilot and was not properly licensed or cleared to fly the plane.  Tests showed he was not under the influence of intoxicants.  Judge Haney granted the motion to quash on the basis that non-licensure can not, as a matter of law, support legal causation of the deaths in a criminal case under the State's theory that the deaths occurred while client committed a misdemeanor (operating the plane unlawfully).  HERE is a copy of the order.  Sharp lawyering by Winston!

MARNY HILL, Tulsa, won a NG in a Statutory Rape case in Tulsa County before Judge Kellough last Wednesday.  The jury took a whopping 15 minutes to dispose of the State's allegations.  Top notch job, Marny! 

BRIAN LOUGHRIN, OKC, won an acquittal in Oklahoma County before Judge Black.  The charge was Robbery with a Firearm but I do not have many details.  Still, a NG is NG.  Good job, Brian! 

ANDREA DIGLIO MILLER, Okla. Co. P.D., won an appellate sentencing for Mr. Thompson, altering his LWOP sentence to straight life.  Another good appellate result for Andrea! 

THOMAS PURCELL, OIDS, obtained some appellate relief on the sentencing front for Mr. Lacy in the case outlined in this issue.  Very nice, Thomas!

PITTSBURG COUNTY:  I am informed that there were four jury trials in criminal cases in Pittsburg County for the May jury term that resulted in two acquittals and one dismissal mid-trial(!).  This is an outstanding performance by the defense bar in Little Dixie.  The ones who made it happen are:

WARREN GOTCHER:  NG in a Negligent Homicide case.

JOHN CONSTANTIKES:  NG in a Trafficking case where client was a passenger who claimed ignorance of the dope which was stashed in a secret compartment in a rented vehicle.

TOM WEBB:  Dismissal mid-trial in an Injury to Minor case.  The minor is said to have testified differently from his pre-trial statements and when asked why purportedly stated, "I wasn't under oath before."      


Hearsay

SEX OFFENDER GUIDELINES (FEDERAL):  HERE is a link to the National Guidelines for Sex Offender Registration and Notification--Proposed Guidelines, May 2007.  These Guidelines are to assist the states in implementing the Sex Offender Registration and Notification Act (SORNA) which is title I of the Adam Walsh Child Protection and Safety Act of 2006 (P.L. 109-248).

BOTCHED EXECUTION:  This article details an execution in Ohio that took 16 minutes to carry out and involved tedious efforts to find a vein on the accused into which needles could be inserted to carry the lethal drugs.    
  



                       ------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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