Gomez v. State, 2007 OK CR 33 (September 5, 2007):  Searches and Seizures; Traffic Stops:  Gomez was stopped in Kingfisher County for swerving across the center yellow line twice.  The officer noticed an odor of alcohol from Gomez and two six-packs of beer in the car, but one container was missing.  The officer searched (over the objection of Gomez), finding the opened beer inside the console and also a glass pipe and a small amount of meth under the bottle.  The Court decided two questions:  whether the officer had probable cause to search and whether a warrantless search must be supported by a showing of exigent circumstances in addition to probable cause.  HELD:  Probable cause existed and Oklahoma law does not require an exigency in addition to probable cause for such a search.  NOTE:  This is a horrible opinion because prior Oklahoma cases construed the Oklahoma Constitution as requiring exigent circumstances in addition to probable cause to search.  The Court overruled these cases and brought the rule in Oklahoma in-line with the Supreme Court's interpretation of the Fourth Amendment.  Judges Chapel and C. Johnson dissented to this holding (although they would have affirmed the convictions on the basis of plain view).

Carl Don Myers v. State, No. F-2005-1011 (Okl.Cr., September 6, 2007) (unublished):  Sufficiency of the Evidence:  Myers was convicted of Murder in the First Degree (along with several other crimes) and sentenced to LWOP.  Although the Court affirmed the principal charge and sentence, a conviction for Kidnapping was reversed for insufficient evidence.  The Court held that under the facts the State failed to prove that his intent was to extort money or property from the deceased while he was forcible seized and confined.

Alfred Gene Ryan v. State, No. F-2005-649 (Okl.Cr., September 7, 2007) (unpublished):  Jury Instructions; Defense Requested Instructions:  Ryan was convicted in Kay County of Rape in the First Degree and Lewd Molestation.  The jury set punishment at 20 years and 10 years, respectively, and the District Court ran them consecutively.  Ryan raised several claims which were rejected, but the Court did modify the sentences to run concurrently based upon an 85% Rule error.

Alfred Junior Mills v. State, No. F-2004-935 (Okl.Cr., August 27, 2007) (unpublished):  Jury Instructions; Defense Requesed Instructions:  This is an unusual order GRANTING rehearing on an 85% Rule error.  The Court modified the sentence from 30 years to 20 years.


Tenth Circuit

United States v. Beckstead, No. 05-4178 (10th Cir., September 5, 2007) (Published):  Spoliation/Destruction of Evidence:  Police did not act in bad faith when they destroyed the meth lab which could have been potentially exculpatory evidence for Beckstead.

United States v. Schaefer, No. 06-3080 (10th Cir., September 5, 2007) (Published):  Child Porn; Sufficiency of the Evidence:  Schaefer subscribed to various web sites to supply him with child porn.  Following a tip, officers executed a warrant of his home and found the images on a CD.  Schaefer admitted to seeking out images of child porn on the Internet.  He waived jury trial and was tried by the court.  HELD:  REVERSED because the Government failed to produce sufficient evidence that Schaefer possessed and received images that traveled across state lines(!) and on plain error review, to boot.  The Court noted that the jurisdictional nexus requires a movement between states.  The Court held:  "The government did not present evidence of such movement; instead, the government only showed that Mr. Schaefer used the Internet."

United States v. Conlan, No. 06-1510 (10th Cir., September 6, 2007) (Published):  Federal Sentencing Guidelines; Reasonableness:  Conlan was convicted of filing false tax returns and sentenced to fifteen (15) months.  He was part of a multi-member scheme committing tax fraud.  The probation office actually recommended a variance from the fifteen (15) to twenty-one (21) months based upon Conlan's involvement in the scheme (the probation office recommended three years of probation with the first six months in home detention).  HELD:  Reversed and remanded for re-sentencing because the District Court, at the urging of the Government, imposed a presumption of reasonableness to the Guidelines range (now we know this presumption applies on appeal; not in the District Court).

United States v. Sanchez-Garcia, No. 06-2262 (10th Cir., September 6, 2007) (Published):  Federal Sentencing Guidelines; Crime of Violence:  In this illegal re-entry case, the panel held that the crime of "Unlawful Use of Means of Transportation" under Arizona law is not a "crime of violence" for enhancement purposes.


United States Supreme Court

No new cases.

HERE is a blog entry detailing that the parties in the Second Amendment case out of the D.C. Circuit have sought review in the Supreme Court.  I suspect that the Court will accept this case.


Other Cases of Note

United States v. McDowell, No. 06-10818 (5th Cir., August 24, 2007):  Sufficiency of the Evidence:  Conviction for Aiding and Abetting the Mailing of Obscene Material is REVERSED for insufficient evidence.  NOTE:  The error was not preserved with a motion for judgment of acquittal but the panel found a manifest miscarriage of justice.

United States v. Ellis, No. 06-3137 (7th Cir., August 27, 2007):  Searches and Seizures; Exigent Circumstances:  Warrantless entry and search of home violated Fourth Amendment because officers had no warrant and the fact that there was movement by persons in the house did not constitute exigent circumstances.

Bell v. Miller, No. 05-5235 (2nd Cir., August 31, 2007):  Eyewitness ID/Line-Ups:  Habeas winner on an IAC claim where an eyewitness was the only evidence linking Bell to the crimes (Robbery and Assault), but the witness was shot in the thigh, lost half his blood, was heavily medicated, and lapsed into a coma for eleven days before recovering and identifying Bell.  Counsel was ineffective for failing to consult with an expert on the reliability of the identification.


Hearsay

FISHER'S CONVICTION AFFIRMED:  Last week, the Court of Criminal Appeals affirmed the conviction of former-Insurance Commissioner Carroll Fisher.  The opinion was unpublished.

OFFICERS CHARGED IN NOBLE:  District Attorney Greg Mashburn has approved charges of Second Degree Murder against two Noble police officers in the death of a five-year-old boy who was shot and killed by one of the officers in Noble.  The officer was trying to kill a snake.

IMPORTANCE OF PHYSICAL LOOKS AT TRIAL:  This is an interesting article detailing the murder trial of music producer Phil Spector.  According to the article, "his dress and mannerisms at the defense table were impossible to ignore."




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

WEDNESDAY & THURSDAY, NOVEMBER 7 & 8, 2007:  OBA Annual Meeting 2007.  You can register for the various CLE sessions by using the REGISTRATION FORM.  Also, HERE is the schedule of events.  Looks like some good stuff.   



SUBSCRIPTIONS: To subscribe click HERE