OCDW 01.12.16

 

(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).

 

 

Ryan Ray Garcia v. State, No. F-2014-679 (Okl.Cr., December 21, 2015) (unpublished): Interrogations (Fifth Amendment): Garcia was convicted by a jury in Comanche County (the Hon. Keith B. Aycock, presiding) of Murder in the First Degree and sentenced to LWOP. Garcia was an inmate in prison who stabbed another inmate to death. He was interviewed three times, made statements in the first two, but invoked his right to counsel in the third. Defense counsel filed a motion to suppress, and a Jackson v. Denno hearing was held on the voluntary nature of the custodial statements. Since defense counsel filed the motion, the trial court gave her “the floor” apparently on the belief that the defense bore the burden of proof. This is incorrect since the State bears the burden of proving that the statements were voluntary. However, the ultimate issue of the voluntary nature of the statements was addressed by the trial court, so the error was harmless. NOTE: This case contains a nice summary of the law regarding these types of hearings.

Chester Lee Hobbs, Jr., v. State, No. F-2014-583 (Okl.Cr., December 23, 2015) (unpublished): Concurrent/Consecutive Sentences: Hobbs was convicted by jury in Tulsa County (the Hon. Mark Barcus, presiding) of Trafficking, Possession of a Firearm AFCF, and Possession of CDS w/o Tax Stamp. The jury sent a question, “Will the sentences be consecutive or concurrent?” The trial court replied that the jury had “all the instructions you need,” and since there was no objection, the Court found no plain error. I included this case because in my view defense counsel should press the trial court to give the jury a straight answer on this question (i.e., that the trial court will determine that), especially in a case like this one where there was some voir dire discussion which implicated the issue.

Ricco Dante Walters v. State, No. F-2014-870 (Okl.Cr., December 22, 2015) (unpublished): Double Jeopardy: In this case out of Cherokee County (the Hon. Darrell G. Shepherd, presiding) convictions for both Possession of a Sawed-Off Shotgun and Possession of Firearm AFCF (involving the same shotgun) violate 21 O.S. 11; thus, the conviction for Possession of a Firearm AFCF is reversed and remanded with instructions to dismiss.

Stephen A. Hacker v. State, No. F-2014-976 (Okl.Cr., January 5, 2016) (unpublished): Double Jeopardy: Hacker was convicted by jury in Okmulgee County (the Hon. Kenneth E. Adair, presiding) of Aggravated Possession of Child Pornography and Use of a Computer to Violate Oklahoma Statutes. The sentences were ordered to be served consecutively, so Hacker attacked both convictions as double punishment for the same act under 21 O.S. 11. The Court disagreed and denied the appeal. NOTE: I have raised this issue before and lost as well. It would seem to be strong since there is only one act when a person downloads the images onto the computer, but the Court does not see it that way.

Benjamin Andrew Akers v. State, No. RE-2015-206 (Okl.Cr., January 5, 2016) (unpublished): Suspended Sentences: In this revocation appeal out of Pontotoc County (the Hon. Gregory D. Pollard, presiding), the order revoking is reversed because of a violation of the 20-day rule. NOTE: This opinion is particularly good because the State actually filed an amended application to revoke which alleged additional grounds, but the Court found this was insufficient because the State did not dismiss the initial application as the statute requires.

Andrew Dewaun Boyles v. State, No. F-2014-858 (Okl.Cr., January 6, 2016) (unpublished): Sufficiency (Burglary): In this Burglary II case out of Creek County, the Court affirmed but the opinion contains a decent discussion of the “breaking” element of burglary (any act of physical force, however slight, by which obstructions to entering an automobile are removed).

Johnny Cannon Sumner v. State, No. F-2014-1080 (Okl.Cr., January 6, 2016) (unpublished): Preliminary Hearing: In this case out of McIntosh County, where Sumner was charged with, and convicted by jury of, Child Sexual Abuse, the State was not ready for PH so the case was dismissed. The State refiled. Sumner appealed, and in this opinion the Court affirmed, holding that Jones v. State, 1971 OK CR 27, 481 P.2d 169, did not bar re-filing because the magistrate did not discharge the accused based upon an adverse ruling on the merits.

State v. Shonda Bridge, No. S-2015-432 (Okl.Cr., January 8, 2016) (unpublished): Solicitation: Bridge was charged with Solicitation for Murder in the First Degree in Pittsburg County, and the Hon. James Bland sustained a motion to quash at preliminary hearing on the basis that the evidence showed that Bridge asked her boyfriend to drive her to the victim’s home so that she could kill him—which was evidence that she wanted him to aid her in the murder, not solicit him to commit it for her. The State appealed. In this opinion, the Court reversed, holding that Bridge solicited her boyfriend to be a principal to the crime. NOTE: This is some soft reasoning by Judge Lumpkin. Judge Johnson dissented.

Tricia Mauldin v. State, No. 112,674 (Okla. Civ. App., Div. II, December 31, 2015) (Not for Official Publication): Expungement: Denial of expungement is reversed when expungement of records was part of the plea agreement with the State.

 

 

DOUG FRIESEN, OKC, won an acquittal right before Christmas in a First Degree Murder case out of Caddo County. In fact, Doug objected to a lesser included offense instruction of Manslaughter, and the jury ultimately agreed with the defense theory of self-defense. The investigator for the defense found two bullets that were shot into the ground as warning shots after the police apparently missed them. Nice win, Doug!

 

 

DIRECTOR PATTON’S LEGACY: Interesting article on the legacy at DOC as a result of the tenure of former Director Robert Patton. DOC still has severe financial problems, and has announced a freeze on all new hiring for all positions.

CERTIFICATION LAW CHALLENGED: Tulsa County Public Defender Rob Nigh has challenged the constitutionality of a statute that mandates adult status for juveniles charged with violent crime.

ELECTING JUDGES: Recent polling suggests that citizens do not like the Judicial Nominating Commission process and would prefer direct election of judges.

SHERIFF GLANZ LOSES APPEAL: Former Tulsa County Sheriff Stanley Glanz has lost his bid in Tenth Circuit for immunity in a lawsuit brought by a former inmate who claimed that she was raped in the jail.

K-9 vs. CELL PHONES: DOC has begun using dogs to locate cell phones in prisons (they have found 279 so far).

CUNNINGHAM RETIRES: Stephens County Court Clerk Margaret Cunningham is retiring after 39 years in the clerk’s office. Newly appointed Clerk Dana Blevins has been sworn in by Special District Judge Ken Graham.

FELONY FILINGS UP: The number of felony filings in Tulsa County was the highest since 2002—a total of 6,928.

FU PROFILE: The link goes to a profile of Tulsa County prosecutor Benjamin Fu.

FORFEITURE PROGRAM SUSPENDED: The suspension of a federal forfeiture program may affect law enforcement here in Oklahoma. In addition, the District Attorneys in Oklahoma opposed any reform of forfeiture laws.

PROBATION ASSISTANCE: Chief Public Defender for Tulsa County Rob Nigh is taking proactive steps to assist probationers avoid the perils of being on probation.

NO PEPPER SPRAY: OJA is phasing out the use of pepper spray in juvenile detention centers.

A.G. vs. AUDITOR: Attorney General Scott Pruitt is in a dispute with State Auditor Gary Jones over whether the A.G. may select an independent auditor.

PROCESS SERVER ARRESTED: A process server in Moore has been arrested on a complaint of sexual assault.

INTERIM WARDEN: Jerry Chrisman, the Warden at Jackie Brannon Correctional Center in McAlester, has been named interim Warden at OSP. In addition, Joe M. Allbaugh has been named the Interim Director of DOC.

LAWSUIT SETTLEMENT: The lawsuit between a Claremore Police Detective and former District Attorney Janice Steidley and her first assistant has been settled for $110,000.00.

COATS RESIGNS: U.S. Attorney for the Western District of Oklahoma Sandy Coats has resigned. It is unclear why he resigned or what his plans are for the future.

FORMER OFFICER CHARGED: A former Midwest City police officer has been charged with 22 counts relating to a pawn shop scheme, which may have included guns belonging to the police department.

BOLIN EXECUTED: The State of Florida has executed serial killer Oscar Ray Bolin for murdering three women. He was executed on January 7, 2016—making him the first person executed in 2016.

NEW SHERIFF: Derek Derwin has been sworn in as the new Sheriff for Ottawa County.

NEW FIRST ASSISTANT: Chuck Sullivan has been sworn in as the new First Assistant DA in Pittsburgh County.

P.C. GRANTED: Judge James Caputo in Tulsa has granted post-conviction relief in a manslaughter case where prosecutors may have charged the man under the wrong statute. The State will appeal.

GREENOUGH APPOINTED: Gov. Fallin has appointed Kelly Morgan Greenough as district judge in Tulsa and Pawnee Counties (finally, one that is not straight out of the DA’s office).

 

WACKY CRIME

A driver in Miami fell out of his truck and caused a three-vehicle collision; a man brings “a pocket full of felonies” with him at Wal-Mart trying to steal a blue tooth; a man arrested in Tulsa alleged forced himself to puke on the arresting officer; someone in Purcell is burning—trash dumpsters; a man was arrested in Stephens County for trespassing, asserting that “this is Texas and I know it”; an Enid man was arrested for doing “drunken doughnuts” in the parking lot of a local hospital; an ill-conceived intervention in McClain County has resulted in the first murder charge of the year; a man being chased by police called the officer in pursuit and asked him to stop.

 

 

FRIDAY, FEBRUARY 5, 2016: State and Federal Gun Laws: When Worlds Collide: This is a 5-hour CLE presented by the OCDLA and will take place at H&H Shooting Sports, 400 N. Vermont Avenue, Oklahoma City, OK 73108.

 

SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164^th St., Edmond, OK 73013.

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.

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