Warner v. State, 2006 OK CR 40 (Okl.Cr., September 26, 2006):  Death Penalty; State Cases:  Warner was convicted of First Degree Murder (Child Abuse) and sentenced to death in Oklahoma County.  The conviction and death sentence is AFFIRMED in this lengthy opinion over a myriad of claims.

Warnick v. Booher, 2006 OK CR 41 (Okl.Cr., September 29, 2006):  Convoluted case that arrived at the Court's door via a certified question of law from the United States District Court for the Northern District of Oklahoma.  The issue revolves around the calculation of credits in a case in which the prisoner is subject to multiple sentences, some of which are to be served consecutively.  Warnick was sentenced to a ten year prison term followed by two twenty year terms (the two twenties concurrent with each other).  DOC made some sort of calculation error and extended the 10 year sentence after Warnick had "discharged" it.  The question posed by the District Court was whether Oklahoma law provided Warnick "with an expectation of finality with respect to a sentence such that a correction to the period of confinement cannot be made after the sentence has been discharged but while the prisoner is still confined on a consecutive sentence?  COCA's answer is equally convoluted, but I think the Court held that multiple, consecutive sentences are considered "one sentence with multiple parts" such that discharge of the first part does not preclude alteration of the first part while the prisoner is still under confinement pursuant to the consecutive sentence.  Got that?

Ryan Anthony Van Winkle v. State, No. F-2005-620 (Okl.Cr., September 22, 2006) (unpublished):  Double Jeopardy/21 O.S. 11:  Van Winkle was convicted of two counts:  Assault with a Dangerous Weapon and Forcible Oral Sodomy.  The Hon. Rebecca Brett Nightengale in Tulsa sentenced him to pursuant to the jury's recommendation of five years and eight years, respectively and consecutively.  Van Winkle put a box knife to the victim's throat and threatened her if she did not perform oral sex on him.  She did so.  Van Winkle argued that since the assault was the same act that made the sodomy forcible, the two counts merged and he cannot be punished for both under 21 O.S. 11.  The Court agreed and distinguished this case from other cases in which one crime is completed before another one begins.  The relief provided for this error was to reverse with instructions to dismiss the Assault conviction.


Tenth Circuit

United States v. McConnel, No. 03-6345 (10th Cir., September 25, 2006) (Published):  Jurors; Jury Instructions--Deliberate Ignorance:  Former Oklahoma attorney Joseph Edward McConnel was convicted by a jury of four counts arising out of firearm sales.  McConnel's license was suspended so he apparently became self-employed as a private investigator.  He associated with Oklahoma City attorney Charles Holdstock.  Holdstock represented a member of a motorcycle gang who had a felony conviction and who eventually set up McConnel by arranging guns and ammo sales.  McConnel raised several claims in this appeal including: 1) juror dishonesty when the foreman failed to divulge that he had been charged with several felonies; 2) error in giving a jury instruction on deliberate ignorance; 3) error in impeaching McConnel with two misdemeanor convictions; and 4) Booker error at sentencing.  The panel found error in giving the deliberate ignorance instruction under the facts but no plain error requiring relief; and also found Booker error but held that the error was harmless.

United States v. Gwathney, No. 05-2165 (10th Cir., September 26, 2006) (Published):  Searches and Seizures; Administrative Searches:  Gwathney drove a commercial truck along I-40 and stopped at the inspection point in New Mexico where drugs were discovered.  He defended on the basis of lack of knowledge but was convicted of Possession with Intent to Distribute 100 kilograms or more of marijuana.  The panel affirmed over claims of:  1) search and seizure; 2) "permissive inference" instruction; and 3) denial of his motion for new trial based on newly discovered evidence.

United States v. Zuniga-Chavez, No. 04-2293 (10th Cir., September 27, 2006) (Published):  Federal Sentencing Guidelines:  Illegal re-entry conviction on a guilty plea where Zuniga-Chavez raised sentencing claims based on Booker and Shepard involving the Government's introduction of documents related to his prior convictions (a certified docket sheet, a certified copy of an abstract judgment, and court case summaries).  AFFIRMED.

Spitznas v. Boone, No. 05-6236 (10th Cir., September 29, 2006) (Published):  Habeas Corpus; Rule 60:  The panel applies the Supreme Court's opinion in Gonzalez concerning when a Rule 60(b) motion should be treated like a successive habeas petition or a "true" Rule 60(b) motion.  Rule 60(b) is concerned with procedural claims; if the claims are substantive then the motion will be treated as a successive petition.  In this case, the panel sets forth the proper mode of analysis governing these claims and concludes that Spitznas raised both types in his Rule 60(b) motion and thus remanded to the District Court on one claim and denied a COA and leave to file a successive application on the other claim.

United States v. Martinez-Jimenez, No. 04-2324 (10th Cir., September 29, 2006) (Published):  Federal Sentencing Guidelines:  Another illegal re-entry into the country case on a guilty plea affirmed over a claim of insufficient evidence to prove one of the prior convictions used to establish the criminal history category.  Here, the Government used, in part, an NCIC report which the panel held to be just fine.


United States Supreme Court

No cases yet from this term which starts this week.

 
Other Cases of Note

State v. Graves, 668 N.W.2d 860 (Iowa 2003):  Prosecutorial Misconduct; Improper Questions:  This is a good case that analyzes the question of whether a prosecutor can properly cross-examine the accused by asking him/her if another witness is lying.  This is a fairly typical prosecutorial tactic but it is condemned in this case with an excellent analysis of the extant case law on the topic and the reasons for the prohibition.  The fact pattern is typical:  Graves was arrested on drug charges and was interviewed by police at the jail.  The officer testified to the statements told to him by Graves.  Graves testified in his own defense and contradicted the testimony of the police officer.  The prosecutor, in the cross-examination of Graves, would pick out parts of the officer's testimony and ask Graves about the statement of the officer.  When Graves denied making the statement attributed to him by the officer, the prosecutor would follow-up with, "Officer Steil made that up?"  The Supreme Court of Iowa held, as a matter of first impression, that a prosecutor may not ask a defendant to comment on the veracity of another witness and to do so is prosecutorial misconduct that violates Due Process.
 

Your BEST Motions Needed

Stephen Jones, Enid, is updating his Vernon's Oklahoma Forms on Criminal Law, Practice and Procedure and all of you are invited to submit your best motions for inclusion in the book.  You will be given proper credit for your submissions.

For more information on this you can contact Brooke Tebow at btebow@stephenjoneslaw.com, fax your information to 405.601.0027, or call Stephen's main office in Enid at 580.242.5500.  The motions must be submitted by October 15, 2006, so do not delay.

Stephen's work is the definitive treatise on Oklahoma criminal law so be sure to pick out your best stuff to submit.


Victories

Send lawyers, guns and money, the shit has hit the fan.

--Warren Zevon, Lawyers, Guns and Money (song) (1978)



BOBBY G. LEWIS, OIDS, assisted sodomizer Ryan Van Winkle in avoiding a double punishment, saving Mr. Van Winkle an extra five years in the clink.  I like the opinion by the Court on this issue, even though the Court did not publish it.  Good job, Bobby! 


Hearsay

ABORTION ISSUE BACK BEFORE THE COURT:  The abortion debate is apparently back before the Supreme Court this week, although I must confess I have not been keeping up with the exact issues.  The case involves "Mary Doe" whose real name is Sandra Cano.  The case of Doe v. Bolton was decided at the same time as Roe v. Wade.

MCCLAIN COUNTY JUDICIAL RACE:  Judge Noah Ewing is retiring at the end of the year after 24-years on the bench in McClain County.  Four hopefuls have filed for the position:  Ron Boone, assistant district attorney in Cleveland County; Charles Gray, attorney in Purcell; Suzanne Woodrow, attorney in Washington, and Gordon Harness, attorney in Newcastle.

FEDERAL SHIELD LAW FOR REPORTERS?:  Thirty-nine states and the District of Columbia offer some sort of privilege for journalists who wish to protect their sources but the federal government does not.  The linked article advocates for protection of journalists at the federal level and I think the author makes some good points.

JUDGE CURBS USE OF MATERIAL WITNESS STATUTE:  A federal judge in Idaho has ruled that federal prosecutors may not use the federal material witness law as a tool to detain or investigate suspects.  Significantly, the judge also ruled that Attorney General Ashcroft is not immune from personal responsibility for wrongful detention of citizens.



   UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)


OCTOBER 13, 2006 (OKC) & OCTOBER 20, 2006 (TULSA):  Criminal Defense Oklahoma Style:  A Look at the Basics of Criminal Defense in Oklahoma.  This event is co-sponsored by the Oklahoma Criminal Defense Lawyers Association and features what appears to be a back-to-the-basics program.  Speakers include program moderator David Ogle, Derek Chance, Mack Martin, David McKenzie, Kent Bridge, John Hunsucker, Shena Burgess (Tulsa), and Bruce Edge.  You can register on-line at www.okbar.org.  Tuition is $150 and it is good for 6 hours including 1 hour of ethics. 

OCTOBER 27, 2006 (OKC) & NOVEMBER 3, 2006 (TULSA):  White Collar Crime.  This looks to be geared toward federal practice and is moderated by soon-to-be Judge Jerome Holmes and Daniel G. Webber, Jr.  Particularly interesting is the panel discussion of post-Booker sentencing strategies with Mack Martin, John W. Coyle, III, and Paul Antonio Lacy (OKC program only) and Paul Brunton (Tulsa program only).  Also, Robert L. Wyatt, IV, will present a section on the state multi-county grand jury as it applies to white collar cases.  You can register on-line at www.okbar.org.  Tuition is $150 and it is good for 6 hours including 1 hour of ethics. 

NOVEMBER 15, 16, & 17, 2006:  OBA Annual Meeting at The Crowne Plaza Hotel, Tulsa, Oklahoma.

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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