Oklahoma
Layman v. State, No. F-2004-198 (Okl.Cr., February 28, 2005) (Unpublished): Winner!!! Life sentence on a Trafficking REVERSED and remanded for new trial on a Batson claim. Court reversed because trial court did not require State to provide a race-neutral reason for excluding a black juror because Layman is white. Racial identity between accused and venireman is not a prerequisite to a Batson challenge. Sharp lawyering.
Gale v. State, No. F-2003-1297 (Okl.Cr., March 1, 2005) (Unpublished): Convictions affirmed on multiple drug counts, but one count of Possession of Precursor w/o Permit reversed under 21 O.S. 11. Gale convicted of separate counts of Possession of Red Phosphorus and Ephedrine w/out Permit, respectively. Court held that the statutory scheme of 63 O.S. 2-322 & 328 does not distinguish between types of precursors and prohibits possession of the listed precursors individually and in combination--so no double punishment allowed for the single act of possessing them both. Frankly, I can not get a handle on the actual legal standard that the court uses in 21 O.S. 11 "double punishment" cases. Seems very "squishy" when I read the cases.
Elton v. State, No. F-2003-1335 (Okl.Cr., March 2, 2005) (Unpublished): Elton slammed by jury on a Robbery w/Dangerous and A & B w/Dangerous for 50 and 10 years, respectively and consecutively, at 85%. Affirmed, but notable because court held no error in refusing Elton.s requested instruction informing the jury that he would have to serve 85% of his sentence before becoming eligible for parole. I t hink this is a huge problem in that jurors do in fact take into account parole eligibility and overcompensate with longer sentences. Grossly unfair. I wonder if the court would find error if the jury sent a note specifically asking about parole or if the new members of the court would reach the same conclusion. I think it will take a jury note to reach a different result. If you have an 85% case, it might be a good idea to try and get juror views on this during voir dire. In a capital case I am working on, one juror was talking about her prior jury service and stated that the jury gave the guy seven years and a few months later she saw him at the county fair eating a snow cone(!) If you can get a juror to express some concern about this issue, you may be able to show some prejudice or some real need for the instruction.
Horn v. State, No. F-2003-1089 (Okl.Cr., March 3, 2005) (Unpublished): Winner!!! Lewd acts case out of Oklahoma County (Tammy Bass-Jones) reversed because of the introduction of polygraph evidence and prosecutorial misconduct in attempting to define reasonable doubt. The polygraph evidence came in through a videotape of a police interview with Horn and also the prosecutor asked Horn if the cops did not believe his claims of innocence because he "had just taken an examination." The court was emphatic: polygraph evidence is not admissible in an Oklahoma criminal trial for any purpose. Concerning reasonable doubt, prosecutor told the jury they could "actually convict the defendant and have doubts in your mind." Court held this statement diluted the State's burden of proof and contrasted it with acceptable statements such as the burden is not "beyond a shadow of a doubt," or "not beyond any doubt." Prosecutors were Ken Stoner and Lynn Loftis.
Tenth Circuit
United States v. Gonzales, No. 04-2126 (10th Cir., March 1, 2005) (Published): Winner!!! In New Mexico, a magistrate with authority to issue a search warrant does not have to be a lawyer. Apparently, they do not have to be too bright, either. Gonzales was hammered and wrecked his car. In the wreckage, cops found a magazine to a Glock 10mm, but no gun. Cop seeks warrant two days later to search Gonzales's home after finding out that Gonzales was a convicted felon and the car was registered to a person other than Gonzales. Problem is, the affidavit failed to state that the address listed was Gonzales's home, or had any other connection to Gonzales, the vehicle, or the suspected criminal activity. Gum.ent conceded that affidavit lacked PC, but invoked Leon. Circuit held that not even Leon could save this affidavit and cops still have some responsibility to evaluate PC. "For good faith to exist, there must be some factual basis connecting the place to be searched to the defendant or suspected criminal activity. When this connection is wholly absent, the affidavit and resulting warrant are .so lacking in probable cause as to render official belief in its existence entirely unreasonable."
Bey v. United States, No. 05-3051 (10th Cir., March 1, 2005) (Published): Authorization for second or successive habeas denied because Booker may not be applied retroactively to these types of proceedings.
United States v. Solomon, No. 04-5063 (10th Cir., March 1, 2005) (Published): Convictions affirmed over confrontation, right to present a defense, and cumulative error claims. Procedural tra p noted: confrontation claim not raised below (only objection was hearsay) but raised on appeal; circuit held issue waived on appeal because plain error not raised, i.e., no claim that trial court should have raised the issue sua sponte. Other than that, unremarkable legal analysis; not sure why this was published over some others that were not.
United States v. Ramos-Lerma, No. 04-1301 (10th Cir., March 3, 2005) (Unpublished): Another remand in light of Booker when error properly preserved in the trial court.
United States Supreme Court
Roper v. Simmons
, No. 03-633 (U.S., March 1, 2005): Winner!!! Court overrules precedent and decides that execution of a person who was under the age of eighteen at the time the crime was committed violates the Eighth and Fourteenth Amendments. The courageous Supreme Court of Missouri is affirmed and kudos to the "show me" state for the plucky decision that forced the issue. Scalia delivers a particularly acerbic, if overdone, dissent. OCDW notes that the Court acted too late to save Oklahomans Sean Sellers and Scott Hain.
Other Cases of Note
United States v. Sahlin, No. 04-1324 (1st Cir., February 22, 2005) (Published): First circuit
holds that Booker, decided subsequent to a Defendant's guilty plea, does not make the plea involuntary. The circuit stated that Defendant was in fact sentenced under the madatory scheme that he expected and the possibility of a favorable change in the law occurring after a plea is one of the normal risks that accompany a guilty plea.
Franklin v. McCaughtry, No. 03-1031 (7th Cir., February 24, 2005) (Published): Seventh circuit Winner!!! in a habeas case on ground of actual bias of trial judge. Strict standards of AEDPA met and good discussion of judicial recusal and bias.
Bockting v. Bayer, No. 02-15866 (9th Cir., February 22, 2005) (Published): Good news: Ninth circuit holds that confrontation case, Crawford v. Washington, 541 U.S. 36 (2004) is retroactive under Teague. Bad news: it is the Ninth circuit.
In re the Matter of Kenneth J. Peasley, 208 Ariz. 27, 90 P.3d 764 (2004): This is a case where a prosecutor was actually disbarred for knowingly presenting false testimony in an Arizona capital case (no, it was not Whinery). The false testimony dealt with a police officer's knowledge of certain facts and the identities of other suspects in an effort to bolster the credibility of an informant. This prosecutor was very seasoned and had conducted approximately 60 capital murder jury trials. This is the only case I have come across where a prosecutor was actually disbarred for intentional misconduct in a capital case.
DUI ALERT!!!
As the result of a bureaucratic snafu, the "Guth 2100" simulator in Intoxilyzer machines has not been officially approved by the Board of Tests since July 11, 2004--so, every breath test administered after that date using a machine that utilizes this simulator is invalid and the results can not be used in either the criminal case or in the DPS administrative hearing.
This pleasant surprise has been reported by Charles Sifers (Oklahoma City) and deals with the provisions of the Board of Tests rules adopting approved simulators. If a simulator is not formally adopted, it is not approved for use in Oklahoma, and all tests using the unapproved simulator are inadmissible. Below is the published rule (click on View Registers, then look under Volume 21, Issue 17):
40:25-1-3. Alcoholic breath simulators
The following alcoholic breath simulator devices are hereby approved, for use in association with any breath-alcohol analysis apparatus, device, or instrument for the determination of the alcohol concentration of breath specimens approved for that purpose by the Board of Tests for Alcohol and Drug Influence or its predecessor agency:
(1) Alcoholic Breath Simulator, Part No. 6000, Stephenson Co., Red Bank, NJ, or its predecessors or successors
(2) Alcoholic Breath Simulator, Model MKII, National Draeger, Inc., Pittsburgh, PA or its predecessors or successors
(31) Alcoholic Breath Simulator, Model Mark IIA, National Draeger, Inc., Pittsburgh, PA, or its predecessors or successors
(4) Alcoholic Breath Simulator, Model LS-40, Luckey Laboratories, Inc., San Bernardino, CA, or its predecessors or successors
(52) Alcoholic Breath Simulator, Model 34C, Guth Laboratories, Inc., Harrisburg, PA, or its predecessors or successors
(63) Alcoholic Breath Simulator, Model 10-4, Guth Laboratories, Inc., Harrisburg, PA, or its predecessors or successors
(7) Alcoholic Breath Simulator, Model TOXITEST or ABS 120, CMI, Inc., Owensboro, KY, or its predecessors or successors
(8) Alcoholic Breath Simulator, Model TOXITEST II, CMI, Inc., Owensboro, KY, or its predecessors or successors
(4) Alcoholic Breath Simulator, Model 210021, Guth Laboratories, Inc., Harrisburg, PA, or its predecessors.
(5) Alcoholic Breath Simulator, Model 210021, Guth Laboratories, Inc., Harrisburg, PA, or its predecessors.
Notice anything peculiar about entries (4) and (5) above? Yep, they approved the same device two times--and left out the one they wanted to approve, the Guth 2100. This is the officially published reg., approved on July 1, 2004, and became effective ten days after that, on July 11, 2004. So, since the Guth 2100 is not on the approved list, it is a legal eunuch, incapable of satisfying the needs of approved machines, but very much capable of satisfying the needs of thorough and perceptive criminal defense lawyers.
Charles reports that the rule actually signed by the Governor did list the Guth 2100, but somehow did not make it to the officially published records. The beauty of it is that the published version above is the controlling, official document. See 75 O.S. 250.7.
Stephen Fabian paved the way on this issue with Manning v. State ex rel. Department of Public Safety, 2003 OK CIV APP 57 and McCown v. State ex rel. Department of Public Safety, 2003 OK CIV APP 66, both of which deal with the Guth 2100 and hold that if it is not approved formally then tests performed with it are inadmissible.
BOTTOM LINE: In your DUI cases, check the Officer's Affidavit and see if the Guth 2100 is listed as the simulator. If it is (and it most likely is), you have an argument, my friend. Cite the cases above, the regulation, and get it kicked!
Charles advises that even though he has won recently with this argument (see Victories below), DPS may attack the argument on the basis that the "2100" is really the same device as the "210021" therefore the re gulation validly adopted the "2100." We will have to see how this plays out, but until it's resolved authoritatively, consider yourself armed and dangerous.
DUI: The Longer You Blow, the Higher You Go
Charles also posted a message on the OCDLA listserv last October in which he relayed a casual DUI experiment conducted at his office (yes, Charles owns several Intoxilyzers). It seems that two unnamed individuals who had dinner and a wide variety of tasty beverages wanted to see Charles's office at 1:00 a.m. (don't ask) and the machine beckoned. With fully exhaled blows (nothing left) they tested at .124% and .123%, respectively.
On a second test within two minutes, each blew until the "0" to the left of the decimal point "popped up" on the machine and then they stopped immediately. The second test yielded .082% and .081%, respectively--clearly a dramatic difference.
Although this specific test was not scientific, Charles advises that there is scientific evidence which supports these results. To view it, check out the web site of Dr. Michael Hlastala by clicking HERE. Charles has also taken the Fifth concerning the identities of the two subjects, but reports that one is from California and the other is from Oregon.
Killer Cross--Interdiction Cop
Cross-examination of the arresting officer is key in developing the factual basis for the Motion to Suppress. Traffic stops, and the susequent search of your client's car, happen with such frequency that I thought I would present what I believe to be an excellent cross-examination of an arresting officer.
This particular cross occurred back in 2002 and was conducted at the preliminary hearing by John W. Coyle, III (Oklahoma City). Client was stopped by COMIT (Central Oklahoma Metro Interdiction Team--OKC PD) Officer Kevin Kyte for improper lane change--not that client did not signal, he did--he signaled without driving the required 100 feet with the signal on (changed lanes at the same time he signaled). You know how it went from there.
To view John's cross, click HERE--CROSS-EXAMINATION.
Use the Oklahoma Constitution!
By James L. Hankins
I have been very pleased lately to find that the Oklahoma Constitution has been cited in many of the pleadings I have seen, both in the trial court and in appellate briefs. I think most of us are aware generally that there is a state constitutional (and statutory) counterpart to most of the provisions of the federal Bill of Rights that deal with criminal procedure. Although in many cases the language is the same, the Oklahoma Constitution is an independent document that is subject to different interpretation than its federal counterpart.
I hear what you are saying: "Yes, Jim, we know that; and it does not matter because COCA never interprets the state Constitution as granting more protection to citizens that the federal courts." Well, not exactly. There are several good examples of the Oklahoma Constitution providing citizens greater protection than the federal Constitution, such as:
Turner v. City of Lawton, 733 P.2d 375, 378-80 (Okla. 1987), which rejected the holding of United States v. Janis, 428 U.S. 433 (1976), and established that in Oklahoma evidence obtained by a search warrant which was invalidated in a criminal action must also be suppressed in a related civil administrative proceeding. The Oklahoma Supreme Court stated, "The state of Oklahoma in the exercise of its sovereign power may provide more expansive individual liberties than those conferred by the United States Constitution--it is only when state law provides less protection that the question must be determined by federal law. The Constitution of the State of Oklahoma contains independent sources of rights and liberties, which may, under some circumstances, offer more protection than the federal constitution." See also Umholtz v. City of Tulsa, 565 P.2d 15, 24 (Okla. 1977) (Art. II, § 7 of the Oklahoma Constitution may afford public employees even greater due process protection than the Fourteenth Amendment to the United States Constitution when property interests are implicated).
The Oklahoma Court of Criminal Appeals adopted the exclusionary rule several decades before it was grafted into the Fourteenth Amendment and made applicable to the States. Richardson v. State, 1992 OK CR 76, para. 6 (citing Gore v. State, 218 P.2d 545, 550 (Okl.Cr.1923) and Simmons v. State, 277 P.2d 196, 198 (Okl.Cr.1954)).
There is also a quirky case in which the Oklahoma Court of Criminal Appeals held that a consent to search from a person in custody must be preceded by Miranda warnings. Schorr v. State, 499 P.2d 450 (Okl.Cr.1972), overruled on other grounds by Rowbotham v. State, 542 P.2d 610 (Okl.Cr.1975); see also Kreijanovsky v. State, 706 P.2d 541, 545 (Okl.Cr.1985) (same). The Court of Criminal Appeals does not like Schorr but can not get around the fact that the portion of the case requiring Miranda is still g ood law. See Cannon v. State, 904 P.2d 89, 96 n. 13 (Okl.Cr.1995).
But by far the greatest thing the Court of Criminal Appeals has failed to do is adopt the "good faith" exception to the exclusionary rule found in United States v. Leon, 468 U.S. 897 (1984). If you do not get to federal court very often, trust me, the Court of Criminal Appeals has done us a huge favor by keeping this monstrosity out of our state jurisprudence (he says, even though the circuit declined a Leon challenge in this very OCDW issue; go figure). The funny thing is, I have no idea why the Court has not adopted Leon, but it has not, even though it has discussed Leon many times and has had opportunities to do so. See Tomlin v. State, 869 P.2d 334, 341 (Okl.Cr.1994) (discussing Leon); Richardson v. State, 841 P.2d 603, 604 (Okl.Cr.1992) (discussing Leon); Solis-Avila v. State, 830 P.2d 191, 192 (Okl.Cr.1992) (recognizing explicitly that the Court has not adopted Leon and seeing no reason to do so in this case); Moore v. State, 788 P.2d 387, 395 (Okl.Cr.1990) (discussing Leon); and Lowry v. State, 729 P.2d 511, 513-14 (Okl.Cr.1986 ) (Bussey, J., dissenting, on the basis that Leon applies to the facts of the case but unable to persuade his collegues to apply it).
So, the point is that the Court has shown some historical receptivity to straying from the federal line to the benefit of the accused Oklahoma citizen and the only way to make the Court do so more often is to raise the issue. A request to you trial lawyers out there: please do the appellate lawyers a favor and always throw in the Oklahoma Constitution as a legal basis for your sterling arguments. Doing so does not take much extra time and it makes us happy.
The recent turnover on the Court of Criminal Appeals inspired me to write this article. Judge Lile is out and Judge (Arlene) Johnson has yet (as of this writing) to actually decide a case. Two new, strong voices on the court can shift radically the direction of personal liberties in our state.
Consider the scourge of pretext traffic stops. Have any of you ever come across a case where the cops stop a car for improper lane change (insert any other innocuous traffic violation here) and then once contact is made with the driver the cops forget about the traffic violation and proceed to quiz the driver (your client) about his travel plans and whether he has any firearms, drugs or alcohol in the vehicle and then your client starts acting "nervous" (according to the cops) at which time the entire encounter escalates with the arrival of drug dogs and ends with your client face down on the pavement in handcuffs while ten drug interdiction cops rip apart his car looking for drugs.
Sound familiar? It should because it happens all the time; and the United States Supreme Court allows it to happen by shielding the subjective intent of the officers from scrutiny. See Whren v. United States, 517 U.S. 806 (1996). The Supreme Court said that the Fourth Amend ment does not protect us from cops who use that minor traffic violation as a pretext for a drug interdiction investigation as long as the cops have a reasonable basis to believe that the driver committed any violation, no matter how de minimus (Note: the driver does not have to actually commit a violation; the cops just need a reasonable basis to believe that he did).
Well, the State of Washington is not buying what the United States Supreme Court is selling. The Washington Supreme Court was confronted with a case in which brazen interdiction cops admitted that the minor traffic stop was a pretext. The court recognized the danger of allowing such a thing and interpreted its state constitution as providing its citizens with more protection than Whren and put a stop to the practice. See State v. Ladson, 979 P.2d 833 (Wash. 1999).
The re-shuffling of the judges on the Court of Criminal Appeals presents us with the opportunity to press these issues upon potentially receptive minds with an eye toward real change. I am not so optimistic that I see a change along the lines of a Ladson decision, but I know what will happen if we do nothing.
So, tweak those motions to include an argument for greater freedom under the Oklahoma Constitution. The busy trial judge in your case will be neither impressed nor inclined to accept such an invitation, but procedurally you must make the request there first, even though the trial judge is not the real audience.
I have recently drafted and filed a motion to suppress that raises this issue and you can see it HERE--MOTION TO SUPPRESS. Feel free to use it in your motions.
Victories
"Send lawyers, guns and money, the shit has hit the fan."
---Warren Zevon, "Lawyers, Guns and Money" (song) (1978)
CINDY BROWN-DANNER, OIDS, gets an appellate victory in the Horn case, supra. Reversal in Lewd Acts case where polygraph evidence and prosecutor attempting to define reasonable doubt convinced the court to order a new trial. Outstanding job, Cindy!
KIMBERLY D. HEINZE, OIDS, gets an appellate victory in the Layman case, supra. Outright reversal and a new trial on a trafficking conviction with life sentence. Not too shabby. Great appellate work, Kim!
PAM KIMBROUGH & MIKE MCBRIDE secured for their respective clients a second bite at the apple in Oklahoma County before Judge Bass last week. Both clients, who are father and son, were charged with a single count of Murder I (premeditated)--after having been tried once before on this charge, convicted, and sentenced to life. McBride represented the then-eighteen year old son and Kimbrough represented the father. As an added twist, the two clients were tried before "dual juries" who sat at the same time in Judge Bass's courtroom during opening statements and common evidentiary presentation, but were excused for closing. The allegations stemmed from an altercation earlier in the evening when the son and others were harassed by four males aged 25, 17, 15, and 13. Clients and a third defendant were concerned that the four would do a drive-by so they got guns and went to discuss the matter. The third defendant was the shooter of the 15-year-old and plead out to LWOP. The father and son went to trial (the first trial was overturned). During the first trial, father and son were tried jointly before one jury and son did not take the stand. In the second trial, there were two juries in the courtroom at the same time and son did take the stand. The defense centered around the degree of aiding and abetting (since the shooter was known), the credibility of the State.s witnesses (mainly the other guys involved in the altercation), and at the close of evidence the defense requested and received lesser offense instructions of Murder II and Man. I (heat of passion). Both convicted of Man. I and since father had a prior felony (pointing a firearm (!)) there was a second stage in which he faced not less than 10. Son sentenced to four (the minimum) and father, with the prior, sentenced to fifteen (pre-85% by a few months). Since son had nearly flat-served the four, Judge Bass ordered him released that night from the county jail over vociferous objection by the State (Suzanne Lister and Gary Ackley). Son went from serving life to walking out of jail that night and father went from serving life to nearly discharging the fifteen. Good work under unique circumstances Pam and Mike!
CHARLES SIFERS w/honorable mention to STEPHEN FABIAN, who developed the basis (discussed in detail above) upon which to invalidate 100's of DUI breath tests administered since July 11, 2004. Charles reports that the argument above has worked in the real world with Judge Croy in Oklahoma County who suppressed a breath test in a criminal case a few weeks ago and kicked a license revocation on appeal on Monday, February 28, 2005, on the same grounds. These DUI gurus are on the ball when the gum.ent drops the ball!
Hearsay
METH SEMINAR/CLE (LAST REMINDER!!!): Defending Meth Cases Seminar to be held on Friday, March 11 in downtown OKC. Organized by Catt Burton and speakers to include Paul Brunton, Barry Derryberry, John Coyle, Jeff Box, John Duncan, Tracy Schumacher, Katrina Legler, Andrea Miller, Bert Richard, Jim Rabon, and more. For registration and details contact Catt at cb@burtongoodmanlaw.com
or by phone at 405.236.2221.
THE TENTH CIRCUIT IS IN TOWN this week hearing oral arguments in various cases, including death penalty cases, at various places around the state. Check out the schedule HERE.
JUDGE LILE RESIGNED from the Court of Criminal Appeals effective Tuesday, March 1, 2005. He has been under intense media scrutiny for several weeks as the result of an investigation into alleged financial improprieties and influence peddling. His resignation does not come as a surprise and it will be interesting to see who is appointed to replace him on the court.
OKC COP GONE BAD: The Daily Oklahoman reported on Friday, February 25, 2005, that OKC police officer Russell Lowry was arrested for possession of CDS and stolen property. This is the second arrest of Officer Lowry in three months. Last December he was arrested for possession of meth and paraphernalia. He has been on paid administrative leave since December 29, 2004. Someone reading this probably represents Lowry, but the rest of you may want to check the State's witness list to see if Lowry is listed. He ma y not be in the mood to testify in your case.
JUDGE FARRELL HATCH, Distict Judge in Bryan County, is retiring effective April 30, 2005.
SPECIAL THANKS to Catt Burton and Scott Anderson--my very first OCDW subscribers!
OKLAHOMA CIVIL LAW WEEKLY??? If anyone has interest in subscribing to a civil counterpart to this newsletter let me know. I am tinkering with the idea and plan to launch it if enough lawyers are interested. Let me know what you think: jameshankins@ocdw.com
SUBSCRIPTIONS: To subscribe click HERE
