Cole v. State, 2007 OK CR 27 (July 11, 2007):  Death Penalty; State Cases:  The Court affirmed the conviction and death sentence in this child-abuse murder case out of Rogers County over claims involving:  1) denial of motion for continuance; 2) conflict with trial counsel; 3) introduction of a prior child abuse conviction (described by Judge Lumpkin as "damaging character evidence"); 4) the introduction of gruesome photographs (one erroneous but harmless); 5) erroneous HAC instruction (error but harmless); 6) Enmund/Tison claims; 7) life photograph of decedent; 8) erroneous sentencing instructions; 9) improper argument by the prosecutor; and 10) cumulative error.

Steven Lynn Smith v. State, No. F-2005-716 (Okl.Cr., July 3, 2007) (unpublished):  1) Limiting Instructions; 2) "Bad Acts":  This is a lengthy and interesting opinion where the Court REVERSED a conviction for Lewd Acts on the basis of the introduction of "other crimes" evidence which consisted of merely a statement made by the accused that his seven-year-old daughter had given him "head" and that he had been convicted of that crime.  The Court held that there was no visible connection between this prior crime and the instant charge; and also that the proof of the prior crime was not clear and convincing.  Notably, the jury was given a limiting instruction but the Court held that the error was reversible anyway.  Judge:  Hon. Tammy Bass-Jones (Oklahoma County).  NOTE:  The legislature has enacted new provisions under the evidence code which specifically allow this type of prior bad act evidence in child sex abuse case.  It remains to be seen how these new provisions will be analyzed by the Court in a claim of unfair prejudice (one would think that if the evidence is fundamentally unfair it would not matter whether it is authorized by the legislature, but something tells me it is not going to be that easy).  This case also contains decent discussions of specific versus general statutes, conflicting punishment ranges (21 O.S. 1123(A) versus 21 O.S. 51.1a), the use of defense "rebuttal" evidence, and application of the 85% Rule.  Concerning the 85% Rule, the Court held that such an instruction was not applicable since, as a repeat offender, Smith was subject only to LWOP.

Charles Causey v. State, No. F-2006-991 (Okl.Cr., June 29, 2007) (unpublished):  1. Vouching; 2. Child Hearsay:  This is another Lewd Molestation case REVERSED and remanded for new trial on the basis of several errors:  1) failure of the trial court to hold a hearing and make specific findings on the reliability of child hearsay; 2) improper vouching (State witness and prosecutor told the jury that the complaining witness was telling the truth); and 3) failure to give the 85% instruction.  Judge Gary L. Brock (McCurtain County).

Victor Alfonso Duenas-Flores, No. C-2005-1 (Okl.Cr., June 28, 2007) (unpublished):  1. Guilty Pleas; 2. Vienna Convention:  Interesting guilty plea case involving a Mexican national charged with DUI Manslaughter in Blaine County.  He was not advised of his right to contact the Mexican consulate under Article 36 of the Vienna Convention on Consular Relations.  Prior to trial, he applied for state funds to hire an expert to attack the blood alcohol test (he tested .21).  The trial court denied the request and this denial, according to Flores, forced him into the plea and the subsequent 45-year sentence.  The Court held that, had he been advised properly of his rights under the VCCR, he would have opted to proceed to trial.  Certiorari GRANTED.

In Re:  Petition for Expungement, Jimmy Real Harmon v. State ex rel. Department of Public Safety, No. 103,326 (Okl.App., Division II, July 11, 2007) (unpublished):  Expungement:  This is a nice pro se victory over the Evil Empire on an expungement petition.  Harmon was convicted of DUI and leaving the scene of an accident in Muskogee County back in 1994.  He plead guilty in Porum municipal court to an amended charge of Reckless Driving and Leaving the Scene.  He stayed out of trouble since then and, ten years later, he petitioned for expungement.  DPS objected.  The district court granted the petition and the appellate panel affirmed in this opinion.  Good discussion of this issue and the way DPS treats driving records.


Tenth Circuit

United States v. Jackson, No. 06-2079 (10th Cir., July 9, 2007) (Published):  Federal Sentencing Guidelines:  Jackson plead guilty to six counts of illegal drug distribution.  In calculating the Guidelines range, the District Court considered un-counseled misdemeanor convictions for battery, domestic violence, and negligent use of a firearm for which he was sentenced to 90 days, all suspended.  HELD:  Such consideration was proper in calculating Jackson's criminal history (making him ineligible for the safety valve).

United States v. McKerrell, Jr., No. 06-5209 (10th Cir., July 5, 2007) (Published):  Searches and Seizures; Consent:  McKerrell barricaded himself inside his home to avoid arrest.  After negotiation with the police, he surrendered peacefully and was transported to the clink.  After he was gone from the scene, the police obtained consent to search from his wife.  McKerrell challenged this search based upon the Supreme Court's decision in Georgia v. Randolph (co-tenant can not consent to search over objecting tenant).  The Circuit held the search was lawful, and provided a most strained and truncated reading of Randolph and not buying McKerrell's argument that the act of barricading himself inside his house should have signaled to the cops that maybe he did in fact object to such a search.  Horrible case.

United States v. Samuels, No. 05-5186 (10th Cir., July 9, 2007) (Published):  Guilty plea and sentence AFFIRMED over claims of:  1) unlawful search based upon informant's tip (there was reasonable suspicion); 2) violation of the rule of sequestration; 3) IAC that resulted in Samuels not moving to withdraw his plea.

In Re:  Shea Thomas Sweeney, No. 06-1224 (10th Cir., July 11, 2007) (Published):  Restitution:  When Sweeney was a juvenile, he committed an arson, was adjudicated delinquent, and ordered to pay restitution in the amount of $89,202.10.  Eleven years later he filed for bankruptcy and sought to discharge the restitution order and the state of Colorado objected.  HELD:  The restitution order is dischargeable in federal bankruptcy proceedings(!)

United States v. Valenzuela, No. 06-1222 (10th Cir., July 12, 2007) (Published):  Searches and Seizures; Traffic Stops:  Traffic stop held valid when officer noticed Valenzuela's car "drift" into the other lane.  The panel distinguished the facts in this case from another "drift" case where it was held that the stop was unlawful (United States v. Gregory, 79 F.3d 973 (10th Cir. 1996)).

United States v. Vandam, No. 06-4104 (10th Cir., July 10, 2007) (Published):  Prosecutorial Misconduct; Breach Plea Agreement:  Since the Government breached its plea agreement to recommend a term of imprisonment at the bottom of the applicable range under the Guidelines, Vandam is entitled to specific performance.  The sentence is therefore vacated and the case remanded to the same judge for re-sentencing.


United States Supreme Court

No new cases.


Other Cases of Note

Cuervo v. State, No. SC06-1156 (Fla., July 12, 2007):  Interrogations/Fifth Amendment:  Old fashioned Miranda winner where Cuervo was questioned by the police, said (in Spanish) that he did not want to say anything, but the cops continued to question him.  The court held that the Miranda violation itself compelled suppression even in the absence of actual coercion and that the error was not harmless.  NOTE:  This was a 4-3 opinion with a spirited dissent drawing a sharp distinction between a suspect invoking his right to remain silent versus his right to counsel.  I do not like this case because it appears to be a good certiorari candidate to me and I do not think the Supreme Court will treat the defendant well if it takes the case.

United States v. Collier, No. 06-1395 (6th Cir., July 12, 2007):  Federal Sentencing Guidelines; Crime of Violence:  The crime of "prison escape" under Michigan law is not a "violent felony" that can trigger the ACCA for a firearm possession conviction.  NOTE:  There is a circuit split on this issue and the Tenth Circuit has held the opposite.

United States v. Mittel-Carey, No. 06-1960 (1st Cir., July 11, 2007):  Interrogations/Fifth Amendment:  Another Miranda winner where the FBI served a warrant at a residence and questioned one of the occupants without administering Miranda.  The District Court ordered the statements suppressed and the Circuit affirmed, holding that even though the suspect was at home, he was still in "custody" under the facts of the case.

Hilton v. State, No. SC05-438 (Fla., July 5, 2007):  Searches and Seizures; Traffic Stops:  Excellent search and seizure winner where the court held that, under Florida law, a police officer may not stop a vehicle for a windshield crack on the basis that the crack renders the windshield "not in proper adjustment or repair" and therefore the firearm and drugs in this case must be suppressed(!)  The majority took 32 pages to reach this conclusion and the three dissenters took another 19 pages to criticize the majority.  Although this case presents an issue of statutory construction under Florida law, I would suspect that Oklahoma statutes are similar.

United States v. Jernigan, No. 05-10086 (9th Cir., July 9, 2007) (en banc):  Prosecutorial Misconduct; Brady Issues:  Brady winner in a bank robbery case where the Government failed to disclose that, while Jernigan was in custody and awaiting trial, several other banks in the area were robbed by a person who bore a strong physical resemblance to Jernigan.


Procedural Trap:  Defense Rebuttal

THE TRAP:  I have filed two appeals recently in which the trial courts have refused to allow defense witnesses to testify on the basis that defense counsel did not endorse the witnesses prior to trial pursuant to the discovery code.  The Court of Criminal Appeals also addressed this issue in the unpublished Smith case outlined above.  I perceive this to be a serious problem and the subject of some confusion among the defense bar.

In the two cases I filed on appeal and also in Smith, defense counsel argued that the defense witness was a rebuttal witness and therefore no notice to the State was required.  The ambiguity is present when the defense witness is used to rebut testimony from a State witness in the State's case-in-chief.  If your witness is used to rebut a State witness who testified during the State's case-in-chief, your witness will most likely be deemed a witness for the defense case-in-chief and NOT a rebuttal witness.  THIS MEANS YOU MUST ENDORSE THE WITNESS PER THE DISCOVERY CODE AND IF YOU DO NOT THE TRIAL COURT WILL NOT ALLOW THE TESTIMONY AND THE COURT OF CRIMINAL APPEALS WILL AFFIRM THIS RULING.

The confusion stems from the fact that a defense witness who contradicts a State witness appears to be a rebuttal witness.  But the Court of Criminal Appeals does not look at it that way.  The Court has held that such defense witnesses are not true "rebuttal" witnesses, but rather witnesses that must be presented during the defense case-in-chief.  See Short v. State, 1999 OK CR 15, 980 P.2d 1081. 

My reading of the cases is that the Court will consider a rebuttal witness a witness called by the State to rebut a witness by the defense.  The defense is then entitled to present witnesses in surrebuttal.  It is the surrebuttal witnesses that you do not have to endorse prior to trial.  Witnesses that simply contradict the witness testimony of the State's case-in-chief will not be considered rebuttal and you will most likely not be able to call the witness unless you have complied with the discovery code.

Defense lawyers as a group do not like to divulge information to the State unless we must, but if you are gearing up for trial, I suggest you look carefully at Short and Smith because you could run into a buzz saw if you are sandbagging your witnesses.  Trial judges do not like it when we do this.  They will not be persuaded by your argument that your witness is only rebuttal and the Court of Criminal Appeals will agree.  I have seen it in the two appeals I filed, in Smith, and in the research I have conducted on this issue.  Do not fall into this trap!

WHAT TO DO IF YOU ARE IN THE TRAP:  If you find yourself in this bind and the trial court rules that you have violated your discovery obligations, your option at that point is to make a good record of requesting a sanction less than preclusion of the witness. 

Under the discovery code, the trial court has broad discretion to remedy discovery violations.  The State endorses witnesses late all the time and typically the trial judge will let them, but will look at you and ask you how much time you need to interview the witness.  You can do the same thing.  Ask the trial court for a brief continuance so you can make your witness available to the State and provide any written statements you have concerning the witness. 

If the trial court will not continue the trial, argue that the State did in fact have notice of the witness and there is no surprise (which will often be the case since your witness most likely will be known to the police and/or the prosecutor).

Finally, if the trial court lowers the boom and precludes your witness from testifying, you must make an offer of proof in order to show the Court of Criminal Appeals the testimony that would have been offered by your witness, how unfair the trial was without the witness, and how your client was prejudiced by your negligent representation.  :))


Victories

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



BILLY J. BAZE, OIDS, obtained another bite at the apple for Mr. Duenas-Flores in the unpublished case outlined above on a very enterprising ground---the Vienna Convention!  Nice work, Billy!

JAMES L. HANKINS, OKC, won a new trial for Mr. Causey in the unpublished case reported above.  This was a pleasant surprise waiting for me in my mailbox when I returned from vacation.  Unfortunately, I also did the appeal for Ben Cole, the published capital case outlined above, which was affirmed.  So, the bad news is published and the good news is unpublished.  But, I'll take it, and so will Mr. Causey.

CAROLYN MERRITT, OKC P.D., won a new trial for Mr. Smith in the unpublished opinion showcased above.  This is quite a compelling victory in light of the LWOP sentence and the disturbing facts of the case.  Terrific win, Carolyn!


Hearsay

SHAKE-UP AT OSP:  It has been reported that, a couple of weeks ago, Lieutenant Marion Bess at OSP was charged with multiple drug counts.  Bess was a shift supervisor at H-Unit.  His arrest prompted an institutional-wide shakedown.  I was at OSP last week visiting clients on H-Unit and it appears this crackdown has been particularly comprehensive and detailed.  They searched everyone and everything.

IMMIGRATION:  Oklahoma lawmakers have been decidedly anti-immigration and leading the way is Tulsa, which has taken strong steps to curb illegals, particularly Latinos.  HERE is an article that the criminal defense bar should read that outlines the issue.  HERE is another article describing how Tulsa County deputies are acting as ICE officers (Immigration and Customs Enforcement).  Basically, when someone is booked at the jail the officers will check their legal status.

SCOURGE OF GILCHRIST:  Gov. Henry recently issued a pardon to Harold Gene Weatherly who served more than 15 years in prison for stabbing a woman in 1984.  The pardon was based upon faulty testimony from Gilchrist at his trial.
  


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