(with special thanks to Mark Hoover, OIDS, for contributing regularly)

 

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

 

 

Tucker Dlayne Freeman v. State, No. F-2019-738 (Okl.Cr., February 4, 2021) (unpublished): Double Jeopardy/Section 11; Assault and Battery; Statutory Construction (Incapacitated): Freeman was convicted by jury in Oklahoma County (the Hon. Ray C. Elliott, presiding) of multiple counts of sexual assault, aggravated assault, and the like. The Court affirmed, but I included the opinion for the discussion of the double punishment prohibition of 21 O.S. 11 (which appears to be approaching dead-letter status because the Court is increasingly finding discrete crimes in what is clearly one criminal episode); and also the discussion of the definition of “incapacitated” for the aggravated assault statute wherein the victim here was awake and fighting during the assault. Judges Kuehn and Lewis dissented on this legal question, concluding that the majority appeared to reason that she was “incapacitated” because she was asleep when first attacked.

 

 

United States v. Kenneth Eugene Barrett, No. 19-7049 (10^th Cir., January 19, 2021) (Published) (Hartz, Matheson & Carson) (E.D. Okla., Hon. Ronald A. White): Death Penalty (Federal); IAC: This is a massive opinion reversing the denial of post-conviction relief under 28 U.S.C. 2255 as to the imposition of the federal death penalty on the basis of IAC during the penalty phase.

United States v. Manuel Chavez, No. 19-2123 (10^th Cir., January 20, 2021) (Published) (Phillips, Baldock & McHugh): Search and Seizure (Automobile Exception; Impoundment/Inventory; Plain View; Community Caretaking; Abandoned Property): Denial of motion to suppress is reversed in a case where a sheriff’s deputy conducted a warrantless seizure of a firearm from a car drive by Chavez that had driven a couple hundred feet up a private dirt road and parked outside his isolated trailer home. The panel rejected the district court’s theory of admissibility under an inventory search theory, and the rest of the Government’s assertions regarding standing, abandonment (on private property which seems to be the key distinction here), plain view, inventory search, community-caretaking, use of non-Mirandized statement concerning his status as a felon, and the automobile exception.

United States v. Patrick Eugene Stein, et al., No. 19-3030 (10^th Cir., January 25, 2021) (Published) (Hartz, Kelly & Holmes): Entrapment; Jurors; Federal Sentencing Guidelines (Terrorism): Convictions for planning to bomb a mosque in Kansas are affirmed over claims related to: 1) the method of jury selection; 2) refusal to instruct on the entrapment defense; and 3) error in applying a terrorism enhancement at sentencing.

 

 

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

 

No new cases.

 

 

United States v. Richard Mukes, No. 20-5134 (6^th Cir., November 7, 2020): Federal Sentencing Guidelines (Firearms Enhancements; Flight): Sentence in this felon-in-possession case is vacated because the district court erred in applying enhancements for: 1) use/possession in connection with another felony; and 2) reckless endangerment during flight.

United States v. Raymond McKinney, No. 19-50801 (5^th Cir., November 16, 2020): Search and Seizure (Pat Down): McKinney was patted down by police and a firearm was found. Denial of his motion to suppress is reversed because police did not have reasonable suspicion to detain him for questioning.

Jasper Pollini v. Amy Robey, Warden, No. 19-5131 (6^th Cir., November 25, 2020): Habeas Corpus (Procedural Default); IAC (Appellate Counsel): A claim of IAC of appellate counsel was not procedurally defaulted under Kentucky law and that claim is allowed to proceed on remand.

United States v. Alex Antonio Cartagena-Lopez, No. 20-40122 (November 2, 2020): Supervised Release: The defendant skipped out on supervised release, but was caught years later when the term had expired. The district court revoked anyway. In this opinion, the panel tackled an issue of first impression of whether the fugitive tolling doctrine applied to supervised release, and held that it does (joining the Second, Third, Fourth, and Ninth Circuits; and parting ways with the First).

 

 

Wins in the Tenth Circuit are few and far between, but let’s give a shout out to DAVID AUTRY (OKC) and WILLIAM D. LUNN (Tulsa), who scored good wins in the circuit in the Barrett and Chavez opinions, respectively as analyzed above. Good work, David and William!

MATT PRICE, Muskogee, also secured an acquittal for his client accused of kidnapping and abuse where the news headline read, “Man found not guilty in kidnapping, abuse case after police officer admits body cam videos contradict his testimony.” Nice job, Matt!

 

 

ARSON: Disturbing story out of Texas where an arsonist burned down the historical Mason County courthouse.

APPOINTED: Jodi Jennings has been appointed acting Court Clerk in Murray County.

DEATH: An inmate has died at the Oklahoma County Jail.

RELEASED: The Oklahoma County Jail, EMSA, and a bail bond agent failed to coordinate efforts which ended up in the release of an inmate.

VANDALS: Someone vandalized a fountain on the O.U. campus.

McGIRT: The FBI and the Bartlesville Police Department have entered into an agreement which allows Bartlesville police officers to investigate crimes in Indian Country.

EXPANSION: The Rogers County Jail will expand by 50-80 beds.

HIRING: Goodwill his hiring ex-cons.

QUOTAS: A bill that would prohibit ticket-quotas by law enforcement agencies is working its way through the Legislature.

GUNS: Gun sales in Oklahoma have soared during the pandemic.

DEATH PENALTY: A GOP representative has proposed a “Conviction Integrity Unit” for Oklahoma death penalty cases.

 

WACKY CRIME

 

LAWTON: A woman goes bananas at the grocery store…or, as Mark Hoover said, maybe she went cuckoo for Cocoa-Puffs (he really said that).

LAWTON II: A Lawton man has plotted…against a plot of land.

EDMOND: An Edmond woman has been arrested after calling the police…to help her get her fake ID back from the bar.

STOLEN: A man stole an OHP cruiser…and then crashed it into a Missouri Highway Patrol cruiser.

SPREE: Tulsa has a one-man crime spree.

LAWSUIT: An Oklahoma woman who was shot trying to steal a Nazi flag has sued the man who shot her.

 

CLE CALENDAR

FRIDAY, FEBRUARY 26, 2021: National Advocates for Pregnant Women, good for five hours of CLE. How to Defend Clients from Charges related to Pregnancy—Zoom Seminar. Check out the link for details. FREE to OCDLA Members!

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

COPYRIGHT STATEMENT & DISCLAIMER: ©2005-2021 by James L. Hankins. All rights reserved. OCDW hereby grants free use of these materials for any non-commercial purpose provided that proper credit to the OCDW is given. In the event that copyrighted works are included in an edition of the OCDW such works may not be reproduced without the consent of the copyright holder because under federal law the OCDW has no authority to allow the reproduction of the intellectual property of others. For purposes that go beyond “fair use” of the copyrighted material under federal law, the permission of the copyright holder must be obtained. If you are a copyright holder and object to any portion of an issue of the OCDW, please contact the publisher, James L. Hankins, at the contact information above (located under the SUBSCRIPTIONS AND SUBMISSIONS section). Finally, the materials presented in this newsletter are for informational purposes only, and are not, nor intended to be, legal advice or to create an attorney-client relationship. You should consult an experienced attorney licensed in your jurisdiction for legal advice applicable to the specific facts of your case. Cases are summarized in each weekly issue as they are issued and filed by the respective court, and are thus subject to being withdrawn, corrected, vacated, and/or modified or reversed without notice. Always conduct your own research!

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