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Oklahoma
Head v. State, 2006 OK CR 44 (Okl.Cr., October 24, 2006): After Formers; Eyewitness ID/Line-Ups; Residue: Head was convicted of Robbery in the First Degree, Resisting Arrest, Possession of CDS (Crack), and Possession of Paraphernalia in Oklahoma County (Judge Susan P. Caswell). AFFIRMED over several claims: 1) Sufficiency of the Evidence regarding the Possession of CDS count: this is a "charred residue" case in which the Court noted that it had held previously that the statute does not prescribe a minimum amount of CDS that must be possessed but held that even if residue is insufficient, the State presented enough evidence to convict by introducing Mr. Head's statement, "[l]eave me alone, I didn't take nothing. I was just smoking crack;" 2) double punishment (no double punishment for conviction of Possession of CDS and Possession of Paraphernalia); 3) improper testimony by the police officer concerning identification of Head by the complaining witness; and 4) sentencing errors involving IAC for failure to move to redact the Judgments and Sentences of the priors and jury consideration of parole (it sent a note saying "[d]o sentences run concurrently?"); and 5) excessive sentence.
Daniel Allen Moore v. State, No. F-2004-1188 (Okl.Cr., October 19, 2006) (unpublished): Jury Instructions; Punishment Range: Moore was convicted of Murder in the First Degree and sentenced to LWOP in Sequoyah County (Hon. A.J. Henshaw). The opinion states that the jury was not given an instruction concerning the punishment range for Murder I and that this was plain error requiring re-sentencing.
Anthony Logan Merrick v. State, No. F-2005-569 (Okl.Cr., October 19, 2006) (unpublished): Child Porn; Double Jeopardy/21 O.S. 11: Merrick was convicted in Oklahoma County at a bench trial (Hon. Susan P. Caswell) of beau-coup counts ranging from Sexual Abuse of a Child, Sexual Exploitation of a Child, First Degree Rape by Instrumentation, and Indecent or Lewd Acts---a whopping 51 counts in all for which he received essentially two consecutive life sentences. Merrick gets some relief by arguing that a "single cache" of pornography can support only one count of possession of child pornography under 21 O.S. 1021.2 and 1024.1. In this case, the State introduced evidence of a videotape that contained several images and a CD-ROM that contained several images. The State apparently printed out thirteen images from these sources and charged them as discrete counts. The Court held this was impermissible under the statute because a digital/magnetic storage device is a distinct item.
Tenth Circuit
Stevens v. Ortiz, et al., No. 05-1250 (10th Cir., October 18, 2006) (Published): Confrontation/Cross-Examination: Habeas case where co-defendant confessed to the cops that he committed murder on the orders of Stevens. This confession was admitted over objection at Stevens' trial but co-defendant did not testify. The panel determined that the holding of the Colorado Supreme Court was contrary to clearly established federal law (pre-Crawford) and that the error was not harmless.
United States v. Blanco, No. 05-4087 (10th Cir., October 24, 2006) (Published): Federal Sentencing Guidelines; Acceptance of Responsibility: The Government's refusal to recommend a one-level downward departure for acceptance of responsibility when the accused requested an independent lab reweigh the drug evidence is legitimate and AFFIRMED.
United States v. Pedraza, No. 05-2141 (10th Cir., October 25, 2006) (Published): Habeas Corpus; Rule 60: Pro se appellant filed various motions under Rule 60 and Rule 59(e) apparently trying to avoid the procedural traps of successive 2255 petitions. He is unsuccessful and the panel held that his motion for reconsideration was itself in part a second 2255 petition and in part a "true" Rule 59(e) motion. This case further construes the circuit's recent decision in Spitznas v. Boone which outlines the analytical framework of these issues.
Hammon v. Ward, No. 05-6158 (10th Cir., October 25, 2006) (Published): Ineffective Assistance of Counsel: Oklahoma habeas case where two brothers were charged with drug and firearm possession after a traffic stop and search. The two brothers hired the same attorney and that is when the problems really started. Counsel worked out a deal for one brother, Demarcus, who had no priors, to receive a deferred sentence in exchange for pleading guilty and testifying against the other brother, Glen. No joint representation agreement was reduced to writing and there was no written waiver of conflict. The actual conflict arose when Glen went to jury trial under the impression that Demarcus would testify for him about the gun and the drugs. Demarcus was a no-show for trial but the issue came up regarding the role of Demarcus as a defense or a state witness. The panel held that Glen was entitled to an evidentiary hearing on his IAC claims and thus the District Court dismissal is REVERSED and remanded.
Maynard v. Boone, No. 05-5063 (10th Cir., October 26, 2006) (Published): Standards of Review; Insanity/Competency; Waiver: Very lengthy opinion affirming an Oklahoma habeas case over claims of incompetency to stand trial and invalid waiver of right to counsel. The panel stated that it was required to "enter the labyrinth of collateral review under the [AEDPA]." Judge Lucero dissented strongly on the issue of waiver of the right to counsel, asserting that "Oklahoma allowed a mentally ill man to represent himself."
United States Supreme Court
No new cases.
Other Cases of Note
Joseph v. State of Alaska, No. 2067 (Alaska App., October 13, 2006): State Constitutions; Searches and Seizures; Pat Downs: In California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court held that the exclusionary rule did not apply in the situation where cops approach unlawfully a suspect and the suspect runs and throws drugs as he's running; the rationale being that the suspect had not actually been seized. Thus, the evidence discarded by a fleeing person subject to an impending unlawful police detention is admissible. In this case, the Alaska Court of Appeals rejected Hodari D. on state constitutional grounds and ruled the evidence, obtained in the case under very similar circumstances, inadmissible. The court also cited fifteen other state courts that have rejected Hodari D. on state constitutional law grounds.
State v. Jimenez, No. A-50-2005 (N.J., October 24, 2006): Death Penalty; Mental Retardation: The lower appellate court in New Jersey ruled that in a capital murder case, the State bore the burden of proving that a defendant was not mentally retarded beyond a reasonable doubt under Atkins v. Virginia, 536 U.S. 304 (2002). In this case, however, the New Jersey Supreme Court REVERSED this holding and concluded that the accused must bear the burden to prove that he is mentally retarded by a preponderance of the evidence.
United States v. Sepulveda-Contreras, No. 04-1409 (1st Cir., October 25, 2006): Federal Sentencing Guidelines: District Court abused its discretion in imposing a financial disclosure and search condition for the first time in its written judgment without orally announcing them at sentencing; and also improperly delegated when it ordered drug tests at the discretion of the Probation Officer.
United States v. Golden, No. 06-1326 (7th Cir., October 25, 2006): Federal Sentencing Guidelines; Crime of Violence: State convictions for "failure to report to county jail" are "violent felonies" under the ACCA. This is a splintered opinion authored by Judge Bauer, joined in a separate concurrence by Judge Rovner, and with a written dissent by Judge Williams.
United States v. Ulyessie Huggins, No. 05-4054 (3rd Cir., October 20, 2006): Federal Sentencing Guidelines; Juvenile Convictions: In a federal drug case, a Pennsylvania juvenile adjudication is not a "prior conviction" that can be used to enhance under 21 U.S.C. 841(b)(1)(B).
Spisak v. Mitchell, No. 03-4034 (6th Cir., October 20, 2006): Habeas Corpus; Capital Habeas Cases; Ineffective Assistance of Counsel: Capital case winner resulting in vacatur of the death penalty based upon trial counsel's closing argument during the sentencing phase (bizarre closing in which counsel described graphically the crime and told the jury his client deserved no sympathy, had no good thoughts, has done no good deeds, and is "sick" and "twisted") and also because of an "acquittal first" jury instruction."
Stanley v. Bartley, No. 06-2184 (7th Cir., October 17, 2006): Habeas Corpus; AEDPA Deference (Met); Ineffective Assistance of Counsel: Grant of habeas by the District Court in a non-capital murder case is affirmed on the basis of ineffective assistance of counsel in failing to interview or call witnesses on behalf of the client.
DEXTER: Must see TV
Other than sports, I do not watch much television. The one show I always watch is LOST on Wednesday nights. My wife started watching another show recently and got me hooked. It is called "DEXTER" and it appears on SHOWTIME on Sunday nights.
The star is Michael Hall, who played the character of David Fisher on the excellent HBO series "Six Feet Under." In "DEXTER" Hall plays the part of Dexter Morgan, a blood spatter expert for the Miami PD. He also happens to be a homicidal sociopath who learned from his deceased-cop father to channel his tendencies into killing other serial killers, to blend in appropriately with "normal" persons, and to cover his tracks.
The premise is, of course, far-fetched but the show makes it work. Hall brings depth to his character and his transformation from the mousy and weak David from "Six Feet Under" to the dangerous but intelligent Dexter is amazing. The supporting cast is solid as well, and includes many character actors you may recognize from HBO shows such as OZ and Sex and the City.
Before he dispatches his victims, Dexter collects a slide of their blood which he keeps hidden in a box that he stores inside his window-unit air conditioner. This show is high on the gore factor, strong language, and adult themes, but with the humor (mostly dark and some unintended) and the ambiguous morality it is a treat each week. Check it out.
Sex Offender Maps--Where Can They Live?
HERE is an interesting map of the city of Edmond depicting "Sex Offender Buffer Zones" which are the areas from which sex offenders are prohibited from living. The map details a surprisingly (at least to me) large area verboten to sex offenders.
I would imagine that the larger urban areas in the state have a similarly large area that excludes sex offenders. The legislature has gone "registration" crazy lately and it appears the federal government is going to enact (or may have already) similar requirements. Finding places where these clients can legally live may become difficult.
The ACLU has filed a lawsuit in the U.S. District Court for the Northern District of Oklahoma challenging these requirements in Tulsa. The lawsuit centers around Tulsa and challenges recent Oklahoma legislation which would place almost all of Tulsa off-limits for sex offenders to live.
Victories
"Send lawyers, guns and money, the shit has hit the fan."
--Warren Zevon, "Lawyers, Guns and Money" (song) (1978)
JAMES DENNIS, OIDS in Sapulpa, won an acquittal in a case with peculiar facts. Get this: the client caught a thief trying to siphon gas out of his car, at night, in the client's driveway. Client fired a warning shot with a .410 shotgun and a second shot a little closer that caught thief in the pattern with some pellets in the backside. The prosecutor, Pamela Hammers in Creek County, declined to charge the thief and the accomplice, but charged the client with shooting with intent to injure(!?) James ran into some judicial hostility from Judge Douglas Golden but prevailed anyway. Creekmore Wallace reported that he saw a little bit of the testimony, as well as jurors chewing and spitting tobacco who were very disinclined to convict under the circumstances. Terrific advocacy, James!
MARNA FRANKLIN, Oklahoma County PD, won a NG in a Murder I case in Oklahoma County before Judge Black last week. I do not have many details, and client is still on the hot seat for a possession of firearm AFCF, but he is out of the woods on the principal charge thanks to Marna's tenacious advocacy. Way to go, Marna!
ALECIA FELTON GEORGE, OKC, won a re-sentencing for Mr. Moore in the case outlined above. Quite a significant development since Moore received LWOP by the jury. Maybe he will fare better on re-sentencing, and if he does, it will be thanks to Alecia. Good job, Alecia!
JAMES L. HANKINS, OKC, won a remand for an evidentiary hearing in the Hammon case out of the Tenth Circuit. Published wins in the circuit are an (increasingly) rare treat and Glen Hammon really deserves his day in court where I think he will win on the merits.
ANDREA D. MILLER, Oklahoma County PD, gave us a good, albeit unpublished case (Merrick v. State), to use in child porn cases where the State prints out images and charges each image as a separate count. The Court in Merrick held that the statute does not allow this. Very nice work (again), Andrea!
STEVE STICE, Norman, represented a client charged with misdemeanor "threatening a violent act." Steve convinced Judge Gaston that the statute was unconstitutionally vague(!) Case dismissed and the State will not appeal. Complete victory for the client. Good job, Steve!
Hearsay
PICASSO RUINED: Casino mogul Steve Wynn had a deal to sell a Picasso painting titled "La Reve" (The Dream) for $139 million. Unfortunately, Wynn accidentally put his elbow through the middle of the painting at his office while talking to an assembled group about the painting. The sale is off and Wynn is reportedly going to keep the painting and have it repaired. This story was reported originally by Nora Ephron in her blog at The Huffington Post.
HASSLED BY THE MAN: Snoop Dogg was arrested last week in California on drug and gun charges. He was at the airport and committed some sort of code or traffic violation which resulted in a search of his car. Always bein' hassled by The Man.
EX-DA CRITICAL OF LANE: Ex-Assistant District Attorney Jay Trenary has penned a multi-part essay very critical of Oklahoma County District Attorney Wes Lane. Trenary refers to Lane as "The Minister of Justice" and catalogs some of the apparently extreme views of Lane and how he appears to be guided in a seemingly inappropriate manner by his religious beliefs. Very interesting read.
CHINESE JUSTICE: This story, about a Chinese court that sentenced a pro-democracy leader to three years in prison for criticizing the communist government on the internet, illustrates the value of our First Amendment.
GRISHAM BOOK: Here is another good review of the new John Grisham book "The Innocent Man: Murder and Injustice in a Small Town." Grisham chronicles a murder in Ada, Oklahoma, and its aftermath. Lots of local color and real Oklahoma personalities involved in the criminal justice system.
DEATH ROW INMATE SUICIDE: A Texas death-row inmate, Michael Dewayne Johnson, 29, killed himself recently just 15 hours before he was scheduled to be executed. He apparently obtained a blade and slit his own throat and wrist between the 15-minute checks by the guards. He also wrote in his own blood that he was innocent.
CALIFORNIA INMATES ON THE WAY: The prison industry is huge here in Oklahoma and it looks to get even bigger when California will start shipping inmates to other states, including Oklahoma, to alleviate its overcrowding problem.
UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)
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).
SUBSCRIPTIONS: To subscribe click
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SUBMISSIONS: Submit articles, war stories, letters to the editor, victory stories, comments, critiques and questions via e-mail to jameshankins@ocdw.com, by phone 405.232.1988, by fax to 405.272.9859, or by regular mail to James L. Hankins, 119 N. Robinson Ave, Ste 320, Oklahoma City, OK 73102. |
