The 85% rule has become a treasure trove for appellate lawyers, resulting in many cases being remanded for re-sentencing, including two cases featured below, or modified by the Court on appeal. I won on this issue recently also, but left the opinion at the office and will have to feature it next week. If any of you tried a case, or know of a client who may have this issue but has not appealed it, you might want to think about raising it ASAP. It is worth a shot. If you are unclear about how to proceed if, for example, the ten day appeal time has expired, give me a call and I can guide you through it. Also, Steve Presson in Norman, Gloyd McCoy in OKC, or Andrea Miller in OKC can assist your clients as well with this issue.


Stouffer v. State, 2006 OK CR 46 (Okl.Cr., November 14, 2006): Death Penalty; State Cases; "Bad Acts": Death penalty case that originated in 1985 and has already wound itself through the appellate process once. In this appeal from a re-trial, Stouffer is once again found guilty and sentenced to death over a host of the usual death penalty issues. The Court did find error in the State's use of "other crimes" evidence but held that the error was harmless.


Edgar Allen Moore v. State, No. F-2005-1031 (Okl.Cr., November 8, 2006) (unpublished): Sufficiency of the Evidence; Jury Instructions: Defense Requested Instructions; Curative Instructions: Moore was convicted by jury in Caddo County of Shooting w/Intent to Kill and KCSP. He was sentenced to 50 and 5 years, respectively, by the Hon. Wyatt Hill. HELD: 1) the KCSP count is reversed for insufficient evidence; and 2) the SWIK count is affirmed but remanded for re-sentencing pursuant to the 85% rule. Good language from the Court on the sufficiency claim. The Court stated that "mere possession of stolen property is not enough; possession must be supplemented with facts inconsistent with honest possession." Error was found also in the prosecutor's repeated statements that Moore did not take any action to give the gun back to the owner (improper comment on Moore's right to remain silent) and the single admonition did not cure the error. Finally, trial counsel requested an 85% instruction when the jury sent a note inquiring about parole eligibility and the trial court refused it. Thus, the principal count is reversed and remanded for re-sentencing.

Clarence Andre Gatewood v. State, No. F-2005-829 (Okl.Cr., November 17, 2006) (unpublished): Jury Instructions: Defense Requested Instructions: Gatewood was tried by jury on a charge of First Degree Murder, but convicted of the lesser offense of Second Degree Murder and sentenced to Life. Remanded for re-sentencing based upon lack of an 85% instruction pursuant to Anderson v. State.

Misty Dawn Nelson v. State, No. RE-2006-135 (Okl.Cr., November 14, 2006) (unpublished): Suspended Sentences: Nelson plead to False Personation and received a deferred sentence. She violated the deferred and sentencing was accelerated to a four year suspended. The State filed an application to revoke the four years based upon new charges out of Tulsa County. The Court revoked two years and ordered them to run consecutively to the Tulsa case. HELD: this was error because the trial court had no authority to lengthen or extend a suspended sentence past the expiration of the term of the original judgment and sentence. The case was remanded to the trial court to determine whether revocation of all or any portion of the suspended sentence is appropriate. Also, the Tulsa case was resolved and the court there ordered the two cases to run concurrently. Concerning this conflict, the Court held that 22 O.S. 976 authorized the concurrent sentences and there was no corresponding authority authorizing a trial court to order sentences to run consecutively when a sentencing judge has provided for a concurrent sentence.


Tenth Circuit

United States v. Villagrana-Flores, No. 05-4313 (10th Cir., November 7, 2006) (Published): Defendant was mentally ill and acting crazy. Police were called. They ran his name for warrants and hit. The panel catalogs degrees of detention, noting that the Fourth Amendment is triggered any time police take an individual into custody against his will, not just in criminal investigations (here the custody was for perceived mental illness). HELD: police may, during a Terry stop, obtain the person's identity and perform a warrants check.

United States v. Steven Jones a/k/a Smooth, No. 06-8003 (10th Cir., November 8, 2006) (Published): Drug convictions affirmed over claims of prosecutorial misconduct, a claim that the judge read the jury instructions wrong although the written instructions were correct, and error when the jury saw the defendant in shackles briefly. No objections below so the panel applied plain error.


United States Supreme Court

Ayers v. Belmontes, No. 05-493 (U.S., November 13, 2006): Habeas Corpus; Capital Habeas Cases: This case deals with the infamous "factor (k)" in California's prior capital sentencing scheme. This factor provides that the jury may consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime[.]" The mitigation focused on Belmontes' good behavior in prison and he argued that this instruction caused the jury to limit his mitigation evidence to consideration tied to the crime itself rather than forward-looking evidence such as his proffered good conduct in prison. HELD: factor (k) is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings.


Other Cases of Note

Joseph v. Coyle, No. 05-3111 (6th Cir., November 9, 2006): Habeas Corpus; Capital Habeas Cases: Grant of habeas in a capital case is affirmed under the AEDPA where capital case had the following errors: 1) insufficient evidence that Joseph was the "actual killer" under state law; 2) jury verdict did not convict him of a capital crime; 3) ineffective assistance of counsel in failing to understand and object to the indictment and jury instructions; 4) Brady violations; and 5) prosecutorial misconduct.


VIENNA CONVENTION: This link goes to a very interesting case from the Texas Court of Criminal Appeals which rejects President Bush's entreaty to apply a decision by the International Court of Justice to grant rehearings to 51 Mexican nationals convicted in American courts. This decision may set the stage for a state vs. federal showdown in the federal courts and I think the state courts may have some strong support from the Supreme Court on this issue.



Awards

I was in Denver last week arguing a case and working on another case so I unfortunately had to miss the OCDLA awards. Luckily, I am on the Board so I already knew who was chosen to receive the awards.

Congratulations to Andrea Miller and Gloyd McCoy for being selected to receive the Thurgood Marshall Appellate Advocacy Award. Well deserved by both. Andrea had more published wins in the last year than anyone and Gloyd probably has the most published wins of anyone, ever.

Also, Tony Lacy at the Federal Public Defender's Office in OKC was the recipient of the Clarence Darrow Award. Tony won three consecutive jury trials in federal court which, as all of you well know, is quite a tall order.

OTHER AWARDS:

Randy Grau, Edmond, was the recipient of the Earl Sneed Continuing Legal Education Award, given annually for outstanding continuing legal education contributions.

Janice Loyd, Edmond, received the Award for Outstanding Pro Bono Service for offering free legal assistance to children and families.

HERE is the OBA web page for other awards presented at the annual meeting.


Oral Arguments in the Circuit

Last week was a meeting of the OCDLA north in Denver, Colorado. I argued a case on Tuesday before a panel consisting of Lucero, Kelly, and Tymkovich. Also there was Steve Presson and Mark Barrett. Barry Derryberry was down the hall arguing one of two cases he had during the week.

On my way into the courthouse I had the horror-of-horrors happen to me. I showed my DL to the marshal who took it and eyeballed it for a long time. He handed it back to me and said, "Your license is expired. You can't come in here without a valid ID." Gulp. I looked at my DL and sure enough, it had expired two weeks ago and I did not realize it.

Amazing. My argument was scheduled in thirty minutes and I could just imagine my case being called and me not being there. I explained the situation to the marshal and he made me wait in the foyer while he obtained authorization from somewhere. He came back about fifteen minutes later and let me through. Whew!

My case involved a drug conviction (67 pounds of cocaine) and a traffic stop. There were some interesting issues and I thought the argument went fine. I left myself two minutes for rebuttal which came in handy as it always does. Mary Smith from the U.S. Attorney's Office in OKC argued for the government.

Lucero can be very gruff from the bench but he did not jump on me and luckily I was not blindsided by any questions from the panel.

Steve Presson argued before me on the double jeopardy case he won before Judge Russell a while back. The State appealed and Steve found himself in a very strange place: seated at the appellee's table! One of the assistant district attorney's argued the case for the State and it was obvious he had little experience (if any) in the Circuit. He was very prepared but talked very fast, trying to cram everything in during his time. He actually had another prosecutor with him who was going to bat clean-up but he ran out of time without reserving any rebuttal. When you are up there in the headlights, the time goes by very fast. You cannot discuss every aspect of your case and if you get bogged down in the questions from the judges it runs out before you know it.

Steve, of course, was an old hand and calmly refuted the State's arguments. It sounds like Steve has a winner, but I have found that you cannot tell too much from the arguments.

All-in-all, it was a good trip. Denver is a very nice city with many fine restaurants and other things to do. If you ever have to go there, I suggest you take your significant other and spend a few days there.

NOTE: Preservation of error is a wonderful thing. When you handle appeals the best thing you ever see is a transcript page where the trial lawyer articulates an objection or a written motion seeking suppression, dismissal, etc. and is followed up by trial counsel and re-urged at trial. Do not EVER get in too big a hurry during the heat of battle where you fail to object to a possible error. Preserving the errors in this manner obtains for your client the possibility of appellate review and helps us appellate lawyers out by having to tap-dance to the "plain error" tune or arguing structural error. It makes a HUGE difference, folks.


Victories

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



PAULA J. ALFRED, Tulsa County Assistant Public Defender, won a re-sentencing for Mr. Gatewood on a Murder II conviction. Very nice, Paula!


WILLIAM (BILL) EARLEY, OKC Assistant Federal Public Defender, won an acquittal recently on a two count indictment charging his client with Assault on a Federal Officer (FBI Agent) and Attempting to Escape from Arrest. I do not have many details on this case, but sounds like another super win for the FPD!

STEVEN M. PRESSON, Norman, won a dismissal of one count and a re-sentencing of a whopping 50-year sentence for Mr. Moore in the case reported above. Another notch for Steve!


Hearsay

MARK FOLEY FALLOUT: The Florida Department of Law Enforcement has opened a "full criminal investigation" into the sexually explicit messages sent to congressional pages. It appears Foley might face criminal exposure under Florida law. I suppose it is a long shot he will be prosecuted but this is still a spectacular fall from grace.

WHITE HOUSE JUDICIAL NOMINATIONS: President Bush will continue to nominate conservative judges to the federal bench. Vice-President Cheney articulated the White House philosophy HERE.

WINCHESTER CHIEF JUSTICE: James Winchester was elected to serve as Chief Justice of the Oklahoma Supreme Court beginning January 1, 2007. James Edmondson was selected as Vice Chief Justice to serve a term concurrent with Winchester.

DOMESTIC SURVEILLANCE LAWSUIT: A federal district judge in California has allowed to go forward a class action lawsuit challenging the White House domestic surveillance program. DOJ had challenged the lawsuit on, among other grounds, "state secrets."

LEGAL LYRICS: Here is a fun article about some research conducted by OCU law professor Alex B. Long into the instances of citation to song lyrics in legal opinions.

COCAINE DISPARITY: U.S. District Judge Reggie B. Walton denounced the disparity in federal sentencing for possession of crack cocaine and cocaine powder in testimony last Tuesday before the U.S. Sentencing Commission. Federal sentencing establishes a 100:1 differential, meaning that possession of 5 grams of crack will get you a mandatory 5 year sentence; while it takes possession of 500 grams of powder cocaine to get the same sentence.

EXECUTION: WHAT HAPPENS AFTER?: Interesting article that delves into the aftermath of an execution in a capital case and how the families of victims are affected.



UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)


NOVEMBER 29, 2006 (OKC): Mastering Jury Selection Skills for Criminal Attorneys. This program features John W. Coyle, III, Stephen Jones, Gloyd McCoy, and Doug Parr. Location: Holiday Inn Hotel & Suites, 6200 N. Robinson, Oklahoma City, OK 73118. Presented by NBI and more info can be found by calling 800.930.6182. Tuition is pretty steep at $309 but this one looks worth it. CLE: 7.0 hours of ethics (including 1 hour of ethics).

NOVEMBER 30, 2006 (OKC) & DECEMBER 1, 2006 (TULSA): Crimes Against Minors--Protecting the Defendant's Rights. This looks like a good one featuring Brian T. Hermanson, Creekmore Wallace, Harry Krop, Ph.D. (ethics discussion of forensic analysis in a sex abuse case), Deborah Reheard, Scott Adams, Jack Dempsey Pointer, and Garvin Isaacs. You can register on-line at www.okbar.org. Tuition is $150 and it is good for 7.5 hours including 1 hour of ethics.

DECEMBER 13, 2006 (TULSA) & DECEMBER 14, 2006 (OKC): Powerful Communication Skills: Winning Strategies for Lawyers. This is a one-woman CLE presented in its entirety by Dr. Anita Jacobs, President of The National Center for Effective Speaking in New Jersey. Although not particularly focused on criminal defense, this program is designed to assist lawyers. 6.5 hours approved including .5 hours of ethics. Tuition is $225 and more information can be obtained at the OBA/CLE Office (800.522.8065 or 405.416.7006).





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