OCDW 01.25.16

 

(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).

 

 

Meyer v. Engle, 2016 OK CR 1 (January 22, 2016): Jurisdiction (Appellate); Judicial Bias: This opinion deals with the way in which courts compute times under the rules that set deadlines, in this case District Court Rule 15(b) which sets a five day deadline to file a writ regarding judicial recusal, and OCCA Rule 10.6 which says the same thing. However, the Oklahoma Supreme Court and the OCCA use different methods to calculate time. The Supreme Court uses the “business day” method which excludes counting weekends and holidays, and the OCCA uses the “calendar day” method which includes them (unless the deadline lands on a day on which the clerk’s office is closed). It matters in this case because a writ to disqualify a judge in a criminal case was filed in a way that was timely under the construction used by the Supreme Court, but untimely under the construction used by the OCCA. In this opinion, the OCCA disagrees with the Supreme Court and applied its own construction of its rule, and thus rejected the appeal. NOTE: The Court gave the appellant an out by noting that the appeal out of time procedure is available, and it also provided a cryptic sentence about how it would “review its rules for the sake of comity to determine whether the rules can be amended in such a manner as to prevent confusion to litigants” but as the death penalty opinions from last year illustrate, our highest appellate courts seem like bickering children when it comes to harmonizing the law in our state, rather than sober, responsible jurists offering leadership to the bench and bar. Perhaps the Legislature will show some leadership and initiate some changes in the rules to make time computation uniform.

Richard Wayne Kellum v. State, No. F-2014-984 (Okl.Cr., January 20, 2016) (unpublished): Waiver (Appellate Issues): Kellum was convicted by jury in Bryan County (the Hon. Mark R. Campbell, presiding) of multiple drug and firearm charges. The Court affirmed, but I included the opinion because of a procedural appellate trap that the Court appears to be enforcing more and more often, and that is when an appellant raises more than one issue in a proposition of error. This is a violation of the Court’s Rules, and in this case three substantive issues were raised in a single proposition of error, and thus the Court applied waiver and refused to address any of them.

Daniel Lee Ramirez v. State, No. F-2014-988 (Okl.Cr., January 21, 2016) (unpublished): Interrogations (Fifth Amendment): Ramirez was convicted by jury in Oklahoma County (the Hon. Ray C. Elliott, presiding), of First Degree Murder and A&B w/Deadly Weapon. The Court affirmed, but the opinion shows just how watered down Miranda has become, this time on the issue of whether Ramirez “unequivocally” invoked his right to remain silent by saying, “I don’t wish to speak right now,” or “I’ll remain silent at this time.” The police stopped questioning, but went back 15 minutes later to continue on the basis that Ramirez qualified his invocation by leaving open the possibility that he would talk at a later time.

 

 

United States v. Christopher Craig, No. 14-3185 (10^th Cir., December 22, 2015) (Published): Federal Sentencing Guidelines (Leader/Organizer; Obstruction of Justice): Enhancements for a murder cross-reference, a leadership enhancement, and an obstruction of justice enhancement are affirmed in this conspiracy and drug case.

United States v. Paul D. Edwards, No. 14-5083 (10^th Cir., December 29, 2015) (Published): Search and Seizure (Search Warrants; Sufficiency; Good Faith): In this possession of child pornography case, the panel held that the search warrant affidavit was insufficient to establish probable cause, but the denial of the motion to suppress is affirmed on the basis of good faith.

Abraham Hagos v. Rick Raemisch, No. 14-1497 (10^th Cir., December 29, 2015) (Published): Habeas Corpus (General);
Jurisdiction (Appellate): Raemisch is in prison on separate criminal convictions and is attacking each, one in state court and another in federal court. The federal district court dismissed his habeas petition for lack of case or controversy. In this opinion, the panel reversed.

United States v. Daniel Phillip Tenorio, No. 15-2037 (10^th Cir., December 29, 2015) (Published): Polygraphs: When Tenorio testified that his confession was coerced, the Government cross-examined him regarding whether he took a polygraph test. The district court also gave a limiting instruction, and the panel found no reversible error.

United States v. Ricky D. Webster, No. 15-3027 (10^th Cir., January 5, 2016) (Published): Search and Seizure (Exclusionary Rule): An elite police unit in Kansas was tasked with making entry in search warrant cases. The FBI and state investigators caught them stealing personal property in the houses they entered, including Webster’s residence. The issue was whether the exclusionary rule should apply to suppress the contraband that was found by the “honest” drug cops that followed the unit inside. The panel held that the exclusionary rule did not apply because the good cops were not tainted.

 

 

“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).

 

White v. Wheeler, No. 14-1372 (U.S., December 14, 2015) (per curiam): Habeas Corpus (Capital Habeas Cases); Jurors (Impartial—Capital): This is a routine rebuke of the Sixth Circuit in a case where it reversed a capital conviction in federal habeas proceedings when the trial court excused a juror that could not give sufficient assurance of neutrality or impartiality when considering the death penalty. The Court reversed, holding that the Sixth Circuit failed to accord the lower state courts sufficient deference under the AEDPA.

Hurst v. Florida, No. 14-7505 (U.S., January 12, 2016): Death Penalty: The Court holds that the death penalty scheme in Florida violates the Sixth Amendment because the additional facts required to impose death are judge-found rather than found by a jury.

Kansas v. Carr, No. 14-449 (U.S., January 20, 2016): Death Penalty: Reversal of the death penalty by the Kansas Supreme Court is reversed, where the state court held that jurors must be told that mitigation evidence need not be proven beyond a reasonable doubt (only to the satisfaction of the individual juror). The Supreme Court held that the Eighth Amendment does not require such an instruction. NOTE: Justice Sotomayer dissented, observing that the State had not violated any right of the accused, and that in fact the Kansas Supreme Court had “overprotected its citizens” and that therefore the writ should have been dismissed as granted improvidently.

 

 

United States v. James Allen Caravayo, No. 14-50773 (5^th Cir., January 5, 2016): Supervised Release: In this case where the accused was convicted of possession of child pornography, the district court imposed a condition of supervised release that prevented him from dating any adult woman with minor children. The panel vacated this condition because it was not supported by factual findings or otherwise clearly substantiated by the record.

United States v. Jose Miguel Medina-Mora, No. 14-1243 (7^th Cir., August 5, 2015): Concurrent/Consecutive Sentences: The district court orally pronounced sentence that the federal time would run concurrently with undischarged state sentences. However, the district court changed this in the written judgment and sentence, maintaining that it intended to run them consecutively. The panel reversed, applying the rule that the oral pronouncement controls, not the written judgment and sentence.

United States v. Rodolpho Hernandez Flores, No. 15-1515 (7^th Cir., August 19, 2015): Search and Seizure (Traffic Stops): Police pulled Flores over for driving with an obstructed license plate (his rear plate was affixed to his car by a standard frame that covered the plate’s periphery). He ended up consenting to a search which yielded drugs. The panel held that the officer could not have believed reasonably that the commonplace plate frame violated state law and reversed.

 

 

None noted.

 

 

DRUG TRAFFICKING ROUTES: The feds have designated Pittsburg and McIntosh counties as high drug trafficking areas.

FELONY FILINGS: Like Tulsa County, Oklahoma County has seen a record number of felony filings in 2015. District Attorney David Prater stated that the increased number of filings might be caused by the decrease in services for mental health and substance abuse problems.

DOES NOT LOOK RIGHT: A report says that physicals at the Tulsa County Jail, which cost $80.00, jumped to $800.00 when the company that employed the Undersheriff’s wife was hired to do them.

COMMUTATIONS: Gov. Fallin has commuted the sentences of two offenders serving lengthy sentences for drug crimes.

JUSTICE SAFETY VALVE: The link goes to an article about a case out of Cleveland County where attorney Sam Talley has filed a motion for judicial discretion in sentencing under the Justice Safety Valve law. District Judge Lori Walkley has taken the matter under advisement.

FELONS VOTING: A lawmaker in Oklahoma wants to clarify state law regarding the voting rights of felons.

MORE FEES: Rogers County has joined other counties in imposing fees in civil cases to fund courthouse security.

JAIL REPRIEVE: The feds have given Oklahoma County two years to deal with overcrowding issues.

SKIATOOK P.D.: The link goes to an article that profiles the Skiatook Police Department.

RIP JUDGE LUCAS: Former District Judge Tom Lucas passed away last week. Also, an article from NEWSOK can be seen HERE.

CHIEF EJECTED: The Mounds Police Chief, who showed up at a Donald Trump rally in uniform and with a sidearm, was told by the Secret Service that he could not be there with his gun, so he opted to leave the rally.

CHALLENGE REJECTED: Tulsa County Public Defender Rob Nigh presented argument in the OCCA challenging the constitutionality of state law mandating adult status for juveniles charged with specific crimes. At the accelerated docket hearing, the Court announced that the challenge was rejected and that a written opinion would follow.

EXECUTION: Alabama executed inmate Christopher Brooks last week for a 1992 rape-murder.

WARRANT DISCOUNT: The town of Roland is offering a 50% discount in the month of February for those with outstanding municipal warrants.

OJA DIRECTOR: Steven Buck has been named as the new Director of the Office of Juvenile Affairs.

ASSET SEIZURES: The seizure of assets by law enforcement in Cleveland County is profiled in this article.

HOLTZCLAW: Interesting article from johntv.com operater and video vigilante Brian Bates on why he believes Daniel Holtzclaw to be innocent. Contains some good discussion and comment on the evidence at trial.

 

WACKY CRIMES

A Grove woman faked her abduction in an attempt to scam her own mother; a 19-year-old woman in Sand Springs called police to report that she was too drunk to drive and had no one to come pick her up, and she was rewarded for being responsible when police took her home and…lol, don’t be silly, of course she was arrested; this burglar was arrested without incident—after he was found asleep behind the wheel in a stolen truck; this guy thought his license was invalid and that he had outstanding warrants so he eluded police—who arrested him and charged him with a host of crimes stemming from the acts of eluding, but found out that his license was valid and that he had no warrants; an Ardmore man was assaulted with a bag of grapes; and finally, a woman in Tulsa, who was on probation, thought it would be a good idea to retrieve her son’s bicycle—with a shotgun.

 

 

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.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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