Ochoa v. State, 2006 OK CR 21 (Okl.Cr., May 25, 2006):  Capital case; Mental Retardation.  No relief for Ochoa in another one of the mental retardation cases in the wake of Atkins.  Interesting issue concerning the jury instructions and the burden of proof.  In Oklahoma, the burden is on the accused to prove he is MR.  There is a New Jersey case holding that the State must prove the accused is not retarded beyond a reasonable doubt but COCA was not persuaded to adopt that standard.  There was also an interesting temporal element in play at Ochoa's trial on MR.  His cognitive abilities improved during his stay in the structured prison environment and defense counsel urged a jury instruction to focus the jury's decision on whether he was MR at the time of the crimes, not at the time of the MR trial.  COCA did not buy it, but I think it's a good point (especially since I'm the one who made it!)  Finally, the trial judge instructed the courtroom deputies to place a "shock-sleeve" on Ochoa during the trial as "insurance" against potential misbehavior by Ochoa.  The Court found this was error but harmless.

Anthony Joseph Frost v. State, No. F-2004-1305 (Okl.Cr., May 18, 2006) (unpublished):  Trial with Prior Felony Convictions.  Frost was convicted of Aggravated Attempt to Elude (AFCF) and Possession of Paraphernalia.  He was nailed with a 40-year sentence on the felony and 1-year on the misdemeanor.  During the second-stage of the trial, where the State had to allege and prove the existence of the prior felony convictions for enhancement purposes, Frost requested that the punishment imposed for the priors be redacted and shielded from the jury.  The reason is the obvious prejudice when the jury finds out that he had been sentenced to 15 years in 2000 but was obviously paroled out early (and proceeded to commit more crimes).  The Court has fashioned the following rules that we all should heed:  1) a trial court abuses its discretion in refusing a request to redact documents showing that the accused was released early; and 2) it is error for the prosecutor to ask an accused about the length of a given sentence he was required to serve and to comment on the possibility of early release during closing arguments.  Both of those events happened to Mr. Frost and the Court modified his sentence from 40 years to 25 years.

Bryan Matthew Carroll v. State, No. F-2004-1182 (Okl.Cr., May 18, 2006) (unpublished):  21 O.S. section 11 (double punishment) and Sufficiency of the Evidence:  Carroll was convicted by a jury of several counts including A&B w/Dangerous Weapon, Attempting to Elude, Possession of Paraphernalia, and Driving w/Revoked License, Speeding, and Failure to Stop at a Stop sign.  He was sentenced to a year or less on all these, but Judge Joe Sam Vassar ordered them to run consecutively.  A trooper noticed Carroll driving 97 mph in a 65 mph zone and tried to stop him.  The twenty minute chase was captured on video and Carroll ran through several stop signs during the chase.  The trooper eventually used the patrol car to "spin-out" Carroll's car whereupon the hapless Carroll proceeded to escape on foot and was apprehended in short order.  HELD:  1) the count of failure to stop at a stop sign is dismissed because the charge of failure to stop at a stop sign was part of the act of eluding; 2) A&B w/Dangerous Weapon is reversed on the basis of insufficient evidence (apparently the State's theory was that Carroll used his car to ram the trooper's car) because the tape showed no intent by Carroll to do bodily harm; 3) the Possession of Paraphernalia is reversed on the basis of insufficient evidence because the State failed to prove that the glass pipe was used or intended to be used for the ingestion of CDS or that the pipe was designed specifically for use in ingesting illegal drugs, the Court stated, "We find that the mere possession of this glass device with only the trooper's opinion that it could be used for smoking marijuana or cocaine is insufficient under the drug paraphernalia statute, definitions and factors found in Title 63 (63 O.S. 2-101(32), 2-101.1, and 2-405).

James Newton Nye v. State, No. F-2005-41 (Okl.Cr., May 22, 2006) (unpublished):  Trial with Prior Felony Convictions.  Nye was convicted by jury of Manufacturing (Meth) AFCF and sentenced to 60 years.  COCA modified the sentence to 20 years based upon prosecutorial misconduct (arguing guilt based upon association with known criminals, arguing facts not in evidence, and improperly focusing on the sentences Nye received for his prior convictions) and the error that occurred in the Frost case, above, namely that the documents introduced by the State to prove the prior felony convictions contained "irrelevant and prejudicial evidence relating to the dates he entered and left the county jail as well as information concerning suspended and revoked sentences."  Admission of this evidence constituted plain error(!)

Reginald Lamond Brazell v. State, No. F-2004-767 (Okl.Cr., May 23, 2006) (unpublished):  85% Rule:  Brazell was convicted of Robbery in the First Degree (AFCF) and sentenced to 40 years in Oklahoma County.  Sentence modified to 30 years on the basis that the jury should have been instructed on the applicability of the 85% rule pursuant to Anderson v. State, 2006 OK CR 6.  This is the latest in a series of cases that have been modified on this basis.

James Joseph Wymer v. State, No. F-2005-814 (Okl.Cr., May 23, 2006) (unpublished):  85% Rule:  This is another case on direct appeal where the Court modified the sentence because the jury was not instructed on the 85% rule.  Wymer was convicted of First Degree Burglary (AFCF) and sentenced to 45 years.  The Court modified the sentence to 35 years.

State of Oklahoma, ex rel. Tim Harris, District Attorney v. 1998 Lexus, et al., No. 101,903 (Okl.Civ., Div. II, May 23, 2006) (unpublished):  Forfeiture-Innocent Owner:  This forfeiture appeal was brought by a woman to get her Lexus back after it was forfeited because of the drug activity of her estranged husband.  The trial court ruled the Lexus forfeitable over her assertion of an innocent owner defense and the Court of Appeals affirmed in a fractured 2-1 opinion (with Judge Wiseman dissenting).  Not a winner, but good discussion of the current law associated with the innocent-owner defense.

State of Oklahoma, ex rel. C. Wesley Lane, v. Seven Hundred Twenty Five Dollars, No. 101, 756 (Okl.Civ., Div. II, May 16, 2006) (Released for Publication):  Forfeiture--Default Judgment:  Odd pro se forfeiture action where Oliver Thomas Stringer, who was stopped on a traffic violation that uncovered 75 pounds of cocaine in his car, sought to vacate a default judgment for $725 (he did not contest the forfeiture of the car).  He was convicted of trafficking and sentenced to 30 years.  It does not come as a surprise that the Court of Appeals affirmed the default judgment against Stringer's various Due Process claims.  The decision to publish apparently stems from interpretation of a recent Oklahoma Supreme Court case regarding the prima facie case where forfeitable property is in "close proximity" to a controlled substance; and also whether the incarceration of a claimant tolls the statute of limitations.  The Court of Appeals construed the recent Supreme Court case as rejecting the argument that the rebuttable presumption of forfeitability based upon "close proximity" is unconstitutional.  The Court also held that Stringer was not entitled to tolling of the statute of limitations on his motion because he was incarcerated.


Tenth Circuit

Last week was actually fairly busy in the Circuit with quite a few unpublished opinions but most were summary opinions denying COA's in pro se prisoner cases.  No reported cases and no unpublished cases of note.


United States Supreme Court

Brigham City, Utah, v. Stuart et al., No. 05-502 (U.S., May 22, 2006):  Exigent Circumstances:  Police received a call at 3:00 a.m. about a loud party.  When they arrived at the house they heard shouting inside and then they proceeded down the driveway and saw two juveniles drinking beer in the backyard.  They entered the yard and could then see through a screen door inside the house, as well as the windows, that a fight was taking place in the kitchen between four adults and a juvenile who "punched one of the adults, causing him to spit blood in a sink."  The officer knocked and announced, which went unnoticed, and then entered the home and announced himself again whereupon the fight subsided.  HELD:  Police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.  This was a unanimous decision that was never in doubt.  Justice Stevens, concurring, stated that "this is an odd flyspeck of a case" and expressed dismay that the minor offenses have been pending against the respondents for six years and questioned how the Utah courts could hold to the contrary and why the U.S. Supreme Court granted certiorari.


Other Cases of Note

United States v. Brown, No. 05-1723 (3rd Cir, May 22, 2006):  Reasonable Suspicion:  Very lengthy and detailed opinion reversing the denial of a suppression order.  A woman was accosted by two black males who tried to rob her.  She reported this to the police and a friend of hers.  The friend called police and said he just saw two black males in dark clothing.  Police arrived and detained two black males (one of them Brown) and upon a Terry frisk, Brown tried to escape and was captured quickly in possession of a firearm which, since he was a felon, he could not possess and was in fact subsequently convicted of possessing and sentenced to 180 months in prison.  The information relayed by the friend was not accurate and the Court focused heavily on the general nature of the description (two black males in dark clothes).  Very good discussion of the law in this area.


Bifurcated Trials:  Some Tips When Your Client has Priors

The unpublished opinions in this issue (Frost and Nye) contain some good law on how the State can use your client's prior felony convictions in jury trials where the State has to prove the existence of the prior felonies in order to enhance.  This is, of course, a horrible situation for the accused but defense counsel can mitigate the State's use of such evidence and now you have the case law to do it!  The State will generally introduce documents from the court file to prove the priors, usually the J&S and whatever else it feels it can introduce to prejudice the jury.  If you are in trial in a bifurcated case, look at the documents closely and keep in mind the following:

1.  Make an on-the-record motion to redact the actual sentences that were imposed for the prior felony convictions.  The Frost case (and the published authority cited therein) holds that it is an abuse of discretion for a trial court to refuse such a request.  You must request this in order to get it!

2.  Move to redact any mention of jail stays or suspended or revoked sentences in the documents.  The Nye case holds that the introduction of such evidence is plain error.

3.  Make sure to move in limine and to object at trial if the prosecutor comments on the sentences imposed for the priors, asks your client about how much time he served, or if the prosecutor comments on or alludes to the possibility that your client got paroled on the priors.  Use the Frost case for this.  Mentioning the length of the sentence imposed may give rise to an inference that your client was paroled at the time he committed the new crime and such is not for the jury to consider.

Basically, it appears that these cases are good authority to limiting the State strictly to the J&S and arguing the fact that the crimes were felonies.  Anything more than that should be met with an objection and motion for a mis-trial.


Book Review by James L. Hankins