Malone v. State, 2007 OK CR 34 (August 31, 2007):  1) Jury Instructions; Defense Requested Instructions; 2) Death Penalty; State Cases:  This is the rather notorious capital murder case of Ricky Ray Malone who shot and killed OHP Trooper Nik Green.  The Court affirmed the conviction, but vacated the death penalty on the basis of improper victim impact testimony.  This is one of the Court's best explications on the topic of victim impact evidence; and the Court treats harshly the trial court, the prosecutor, and defense counsel for allowing the extended and emotional testimony to go to the jury in this case.  Remanded for re-sentencing.  There is also a detailed discussion on the defense of voluntary intoxication in malice murder cases and the appropriate jury instructions.  In Malone's case, the erroneous instructions constituted plain error but it was held harmless.  NOTE:  The Court split 3-2 in this case with Judges Lumpkin and Lewis dissenting on the death penalty reversal.

Serapio Penny Coronado v. State, No. F-2006-669 (Okl.Cr., August 29, 2007) (unpublished):  Restitution:  Coronado was convicted by jury in Jackson County of Attempted Burglary in the Second Degree.  He was sentenced to 4 years and ordered to pay $25 in restitution.  The prison time was upheld but the restitution order was reversed and remanded with instructions for a proper determination of the restitution amount.  The general legal rule in Oklahoma is that "restitution may be ordered if the damages are determinable with reasonable certainty."  Taylor v. State, 2002 OK CR 13, para. 5, 45 P.3d 103, 105; and, the record must reflect a basis for the district court's determination of a victim's loss or the decision is arbitrary.  Honeycutt v. State, 1992 OK CR 36, para. 33, 834 P.2d 993, 1000.  In this case, there was evidence that the lock and hasp were damaged but no evidence of the value of the lock and hasp.


Tenth Circuit

United States v. Cereceres-Zavala, no. 05-2191 (10th Cir., August 28, 2007) (Published):  Illegal re-entry case AFFIRMED over claims that the District Court improperly relied upon contested statements in the PSR and failed to consider the sentencing factors in 18 U.S.C. sec. 3553.  This case involves an interpretation of Rule 32 which requires the defendant to make challenges to factual inaccuracies in the PSR.

United States v. Jarvis, No. 06-2264 (10th Cir., August 28, 2007) (Published):  Forfeiture; Waiver:  Interlocutory appeal by Jarvis challenging an order denying release of funds.  HELD:  The use by the United States of the New Mexico lis pendens statute was improper.  Reversed and remanded with instructions to order the lis pendens notices removed.  NOTE:  Jarvis wanted the notices removed so he could sell the property and pay his attorney!

United States v. Zamudio-Carrillo, No. 06-3193 (10th Cir., August 28, 2007) (Published):  Searches and Seizures; Traffic Stops:   Kansas Highway Patrolman John Rule was traveling westbound on I-70 when he saw a Ford Explorer traveling eastbound.  He suspected the Explorer had a false compartment because the rear of the vehicle was raised higher than normal.  Like magic, Rule observed a traffic violation as he followed the Explorer and became convinced that it had a false compartment.  The Explorer had Arizona specialty plates as did a Ford Escape that was following it.  Rule stopped the Explorer and the drug dog alerted.  Rule radioed another trooper to stop the Escape which was driven by Zamudio-Carrillo since the specialty plates were sequentially numbered and he believed the cars to be traveling together.  Both cars were towed and searched.  Drugs were found in both.  The panel held that the discovery of the false compartment in the Explorer coupled with objective information indicating that the cars were traveling in tandem gave police probable cause to stop and seize the Zamudio-Carrillo in the Escape.  In other words, in the Tenth Circuit, if it has wheels then it can be searched.  This is a truly awful case for the Fourth Amendment.

United States v. Benally, No. 06-4173 (10th Cir., August 29, 2007) (Published):  "Bad Acts":  Benally was convicted by jury of one count of Aggravated Sexual Abuse of a Minor in Indian Country.  He was sentenced to 324 months.  AFFIRMED over his claim that the District Court erred in allowing testimony of four witnesses regarding his prior acts of sexual assault.


United States Supreme Court

No new cases.

HERE is a link to the oral argument calendar.


Other Cases of Note

United States v. Canty, No. 06-1376 (7th Cir., August 28, 2007):  Right to Present a Defense:  When Canty was caught with guns, drugs, and counterfeit money in his apartment, he did not deny that the money was counterfeit; rather, he explained that he was printing the money to give to the police for use as "flash money" in undercover drug operations.  When he tried to tell this story to the jury, the trial court held that he was attempting a public authority defense and because he had not given notice under Rule 12.3, he could not offer such testimony in his own defense.  REVERSED and remanded for a new trial (the Government conceded error but tried to persuade the panel that the error was harmless).

United States v. Razmilovic, No. 06-4195 (2nd Cir., August 27, 2007):  Double Jeopardy:  This complex securities jury trial lasted six weeks and featured 40 witnesses.  The jury deliberated two days before adjourning for President's Day weekend.  On the third day, the jury sent a note saying it was deadlocked.  The District Court declared a mistrial without inquiry of the jury and the record shows conflicting positions of the defendants.  The panel held that re-trial was barred by double jeopardy since there was no manifest necessity to declare the mistrial.


Victories

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



JAMES H. LOCKARD & KATHLEEN SMITH, OIDS, convinced the Court of Criminal Appeals to vacate the death penalty in the Malone case.  When you read the facts it is clear that his was quite a feat.  Very nice job James and Kathleen!

JOHN MICHAEL SMITH, OKC, tried a domestic abuse misdemeanor jury trial before Judge Croy last week.  Although I do not have many details on this, I am informed that the "victim", the defendant, the investigators, and all witnesses, were police officers(!)  Jury out nine hours and considered the confession of the accused before bringing back an acquittal.  Terrific work, John!


Hearsay

DUKE PROSECUTOR JAILED:  Disgraced ex-prosectuor Mike Nifong was sentenced to one day in jail as punishment for contempt of court when he lied to the trial judge during his aborted prosecution of several Duke lacrosse players.  Nifong told the judge that he had given the defense DNA results when he in fact did not.

GONZALES GONE:  The link goes to a good article outlining the controversial career of ex-Attorney General Alberto Gonzales.



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