Harry Oliver West v. State, No. F-2005-700 (Okl.Cr., July 14, 2006) (unpublished):  DUI:  West was tried and convicted of DUI, AFCF, and sentenced to forty-five (45) years(!!)  Although West did not request jury instructions on the definitions of the terms "driving under the influence" and "driving while impaired" the Court nevertheless found the trial court's failure to so instruct to be plain error requiring reversal under Slusher v. State, 1991 OK CR 83.  Trial Judge:  April Sellers White (Creek County).

Marion Whitmore v. State, No. F-2004-1283 (Okl.Cr., July 7, 2006) (unpublished):  After-Formers:  Whitmore was convicted of Possession of Meth, AFCF, and whacked for sixty-five (65) years.  The Court modified his sentence to thirty-five (35) years because the prosecutor, during second stage closing arguments, made direct reference to the fact that Whitmore did not serve the full sentences imposed in his prior convictions.  Trial Judge:  Ted A. Knight (LeFlore County).

Ronald Lavel Hubbard v. State, No. F-2005-392 (Okl.Cr., July 7, 2006) (unpublished):  Excessive Sentence:  Hubbard was convicted by jury of two counts of Delivery of CDS (Cocaine Base) and sentenced to 20 years on each count, to be served consecutively.  The Court found that the consecutive nature of the sentences "shocked" its conscience and modified the terms of the sentences to run concurrently.  This is a somewhat unusual result because the standard whether sentences should run concurrently/consecutively is an abuse of discretion.  Trial Judge:  Janice P. Dreiling (Nowata County).

Tony Neal Duncan v. State, No. F-2005-320 (Okl.Cr., July 11, 2006) (unpublished):  Confrontation/Cross-Examination:  Duncan was convicted of First Degree Manslaughter in a DUI car crash.  The case was reversed and remanded for new trial because the trial court allowed the State to introduce the preliminary hearing transcript of the attending physician's assistant (who claimed to have smelled the odor of alcohol on Duncan's breath when he was admitted to the hospital) but failed to show that he was "unavailable" (the State in fact simply released him from the trial subpoena because he had to attend college classes out of state).  The trial judge here deserves some exposure for the degree to which he tried to assist the State in introducing the transcript.  First, he ruled that the preliminary hearing transcript was a "deposition of a witness" (under the civil procedure code that does not apply to criminal cases) and then alternatively ruled that the statements were "present sense impressions" and then, for good measure, "excited utterances" which would allow admission regardless of the availability of the witness.  The Court of Criminal Appeals reminded the judge that preliminary hearing testimony is neither a "present sense impression" nor an "excited utterance."  The prejudice was clear because the three first-responder EMTs at the scene of the collision testified that they did not detect the odor of alcohol on Duncan at the scene.  Trial Judge:  Lowell R. Burgess (Pushmataha County).

Daniel Hawkes Fears v. State, No. F-2004-1279 (Okl.Cr., July 7, 2006) (unpublished):  1. Insanity/Competency; 2. Prosecutorial Misconduct (Improper Argument):  Fears apparently went on a shooting spree in Sequoyah County and ended up killing two persons and being convicted of seventeen counts ranging from Murder I to various firearms counts.  He was sentenced to consecutive sentences of LWOP on the Murders and a whole bunch of consecutive time on the other counts.  Fears admitted to committing the crimes but entered a plea of not guilty by reason of insanity (he told one of the Troopers that aliens were controlling him and his brain).  During voir dire, the issue came up regarding what exactly happens to an accused who is found not guilty by reason of insanity.  The potential jurors were asking this question and the trial judge would not tell them, presumably in light of Ullery v. State, 1999 OK CR 36, which held that trial courts are not required to instruct jurors regarding the consequences of a verdict of not guilty by reason of insanity.  Pursuant to statute, if an accused is found not guilty by reason of insanity, the court "shall thereupon order the defendant committed to the state hospital for the mentally ill, or other state institution provided for the care and treatment of cases such as the one before the court, until the sanity and soundness of mind of the defendant be judicially determined, and such person be discharged from the institution according to law."  HELD:  1) Ullery is no longer controlling law and jurors must be informed of the consequences of the "not guilty by reason of insanity" verdict; and 2) prosecutorial misconduct was pervasive and prejudicial, and encouraged the jury to reach a verdict based upon sympathy and emotion rather than the evidence presented (the prosecutor's arguments centered around charges that Fears "bought" a defense by hiring expert witnesses, criticizing Fear's decision to have a jury trial, expressing personal opinions about the result of the case, and "seriously misstating" the law on the insanity defense).  Particularly repugnant was the prosecutorial tactic of calling to the stand a four-year-old victim of the crimes (she was two-years-old when she was injured).  This witness was not endorsed.  Trial counsel objected and the State agreed to fore go her testimony until after a hearing in order to determine whether she was competent to recall events when she was two years old.  The State never requested a hearing and the little girl never testified.  The State thus obviously called the little girl for the sole purpose of having her walk before the jury to the witness stand and the Court so held.  REVERSED AND REMANDED FOR ENTRY OF A VERDICT OF NOT GUILTY BY REASON OF INSANITY(!)  NOTE:  this opinion is a total of over fifty pages in length and purports to overrule a published decision of the Court; yet, the opinion is unpublished(!?!)  This is very peculiar.  Trial Judge:  John Garrett (Sequoyah County); Prosecutor:  Monte Strout (Sallisaw, OK).


Tenth Circuit

United States v. Krejcarek, No. 04-1531 (10th Cir., July 11, 2006) (Published):  Federal Sentencing Guidelines:  Third Degree Assault Misdemeanor convictions under Colorado law are "crimes of violence" under the Guidelines. 

United States v. LaDeaux, No. 05-8097 (10th Cir., July 12, 2006) (Published):  Searches and Seizures; Traffic Stops:  This traffic stop case marks the return of the notorious Trooper Ben Peech out of Wyoming.  After stopping a motorist for following too closely and failure to signal, Peech took the driver to his patrol car to write a warning and noticed that the driver was "very, very nervous."  Peech requested that another trooper arrive with a drug dog.  Peech acknowledged that he had no basis other than "a hunch" to believe that drugs were in the car he stopped.  When the second trooper arrived at the scene, he ordered the occupants of the car out and ordered them to roll up the windows of the car and "turn the vents on" (to keep the dog from jumping inside the car and to force air out of the car to help the dog sniff).  The dog alerted to the trunk, drugs were found, and LaDeaux entered a conditional plea.  The Circuit held there was no error in ordering the passengers out of the car because the Supreme Court has issued a bright-line rule on this, but remanded to the District Court to consider in the first instance whether the additional requests to roll up the windows and turn on the vents violated the Fourth Amendment. 


United States Supreme Court

No new decisions to report.


Other Cases of Note

United States v. Ponds, No. 03-3134 (D.C. Cir., July 14, 2006):  Immunity:  Ponds was an attorney who took a car as a fee in a drug case.  The Government sought to forfeit the car and Ponds did not inform anyone, including the judge at his client's sentencing, that he had the car.  The AUSA and the DEA went after Ponds in Grand Jury proceedings, acquired information from his client through subpoenas (the fee agreement that discussed the car), and issued subpoenas to Ponds to produce records relating to the car.  Ponds invoked his right against self-incrimination and the Government sought and received an order from the court granting act-of-production immunity under 18 U.S.C. 6002. Pursuant to the immunity grant, Ponds appeared before the Grand Jury and produced the records.  He was thereafter indicted and convicted of tax evasion and mail fraud, although these convictions were not related directly to the car.  The Circuit reversed because the Government made "derivative" use of some of the protected documents. 


Victories

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



JAMES L. HANKINS, OKC:  I received some good news in my mailbox last week in the form of the opinion in the Duncan case reported above, reversing and remanding for a new trial.  I would like to point out the efforts of trial counsel in the case, Maria Tasi Blakely, Hugo, OK.  I do not know Ms. Blakely personally, but I read a great many trial transcripts and can tell rather quickly when trial counsel is "fighting" for the client.  In the Duncan case, she was definitely a "fighter" in protecting the record and filing motions.  I think he has a good shot at winning a re-trial.

JUDITH L. JOHNSON, OIDS, convinced COCA to shave 30 years off the sentence of Mr. Whitmore for possession of a small quantity of meth.  Very nice, Judith!

GLOYD MCCOY, OKC, made sure that the conscience of the court was shocked enough to modify the sentences of Mr. Hubbard in Nowata County.  Good job, Gloyd!

ROB NIGH, Tulsa, did a fine job both at trial and on appeal in the Fears case as reported above.  Extraordinary opinion on the insanity defense and, with over fifty pages of opinion, it is a mystery to me why the Court did not publish the case, particularly when it appears to have overruled a published opinion(!?)  Terrific advocacy, Rob! 

BILL ZUHDI, OKC, secured the appellate win for the hapless Mr. West in the case reported above.  I do not recall ever seeing a 45 year sentence for DUI.  Good work, Bill!


Hearsay

CLARK BREWSTER will not be charged criminally with witness tampering as fall-out from his defense of former-judge Donald Thompson.  Brewster called a witness and interviewed her prior to trial.  The witness later accused Brewster of attempting to have her alter her testimony and she submitted a partial tape-recording of the conversation to the trial judge.  Brewster also taped the conversation and submitted the tape to the Bar.  This is a good lesson in dealing with witnesses to be careful what you say and to tape the conversation if you can.

EXECUTION DATE SET:  The Oklahoma Court of Criminal Appeals has set an execution date for August 29, 2006, for Eric Allen Patton.  Patton was convicted and sentenced to death for the December 16, 1994, murder of Charlene Elizabeth Kauer, 56, during a robbery at her home in Oklahoma City.

JAIL PROBLEMS:  Interesting article about a federal investigation into jails, including this near the end:  "At LeFlore County Jail, across the state line in Oklahoma, the Justice Department found "credible allegations of a pattern of physical violence" among inmates, made worse by the fact that inmates victimized by assaults often received no medical treatment."

COORS LOSES LICENSE FOR DUI:  Talk about irony.  The President of Molson Coors Brewing Company, Peter Coors, was arrested in Golden, Colorado for DUI.  According to the article:  "in one breath test, he registered a blood alcohol level of 0.073 percent. In a second, 20 minutes later, he registered 0.088. The legal limit in Colorado is 0.05 percent."  That seems like a very low limit.

HOLMES UNDER FIRE:  Jerome Holmes, President Bush's nomination to the Tenth Circuit, is deflecting criticism of his decidedly conservative views as expressed in newspaper editorials he authored. 

COURT TV will highlight the Ronald Williamson case out of Ada.  The program description is as follows:  Monday, July 31st 11 P.M. ET/PT:  Court TV's acclaimed series highlights inspirational stories of redemption from the case files of Barry Scheck and Peter Neufeld's Innocence Project, which has provided direct representation or critical assistance in cases involving post-conviction DNA evidence, resulting in the exoneration of more than 110 wrongly imprisoned men and women. In this episode, police in Ada, Oklahoma are stumped by a horrific crime and when the case quickly stalls, they focus the investigation on the town eccentric, Ron Williamson. Convinced there were two killers, authorities arrest Williamson and his only friend, Dennis Fritz. Both men proclaim their innocence but are found guilty: Fritz is sentenced to life in prison, and Williamson is sent to death row. Can the Innocence Project wade through faulty hair evidence, ignored suspects and questionable informants in time to save one man from a life in prison and another from death? This compelling case is also the subject of a new book from best-selling author John Grisham.

UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER):

JULY 27, 2006:  OCDLA DEATH PENALTY SEMINAR:  This will take place Thursday, July 27--Friday, July 28, 2006, at Oklahoma City University.  The times and registration info will be available soon.  Speakers include:  Rob Ravitz, Rob Nigh, Brian Hermansen, Dick Burr, Vicki Werneke, Cynthia Hartung, Sid Conway, Lee Ann Peters, Wendi Hobbs, Randy Bauman, Creekmore Wallace, Jack Gordon, Mark Henricksen, Lanita Henricksen, Brenda McCray, Sandra Collett, Kim Marks, Jim Fowler, Scott Braden, and Lisa McCalmont.

SEPTEMBER 14, 2006:  The Federal Bar Association presents this program at the Petroleum Club in Oklahoma City featuring Morris Dees, the founder of the Southern Poverty Law Center.  Mr. Dees will give a presentation on the topic, "With Justice for All."  FBA members $20, all others $30.  To sign up, contact Rosene Coleman at 405.609.5320 or at rosene_coleman@okwd.uscourts.gov.  



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