OCDW 03.21.16

 

(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).

 

 

State v Feeken, 2016 OK CR 6 (March 17, 2016): Standard of Review (Suppression); Search and Seizure (Drug Dogs; Reasonable Suspicion; Inevitable Discovery): In this case out of Caddo County, Feeken was charged with Trafficking in meth, and after preliminary hearing, Judge Richard Van Dyck granted a motion to suppress. The State appealed. A deputy saw Feeken standing beside a motorcycle in the parking lot of a closed business in the early morning hours. He asked for a drivers license and ran a records check. The motorcycle was not insured. He radioed for assistance, which arrived along with a drug dog, and the original deputy obtained consent to search the compartments of the motorcycle, but Feeken took out a travel bag and then refused consent (?) (the facts here are a little confusing). The drug dog alerted, drugs were found. The Court held that the search was reasonable, especially since officers were going to impound the motorcycle and the encounter took less than six minutes. NOTE: The Court indicated that inevitable discovery would apply here and that it could “end our analysis at this point” but it did not do so and went on to hold that the entire police interaction was reasonable. It is not apparent to me why the Court decided to publish this opinion. There is no extended discussion of the law in this area, no change in the law that I can detect, it involved a run-of-the-mill fact pattern, and the opinion contained little in the way of facts or analysis that makes the law in this area more clear (if anything, it is difficult to pin down exactly what points of law are important in this case).

Jackson v. State, 2016 OK CR 5 (March 15, 2016): Jury Instructions (Transferred Intent): Jackson was tried by jury in Tulsa County (the Hon. William Musseman, presiding), and convicted of Murder in the First Degree (two counts; and sentenced to life with parole). The issue on appeal is whether the trial court erred in instructing on the doctrine of transferred intent. According to Jackson, transferred intent is an alternative theory of first degree murder that must be charged in the Information (thus, he also argued a notice component of his claim). The Court rejected the claim, finding that the murder statute encapsulated intent to kill a human being and that the Information provided adequate notice. NOTE: The claim was not preserved, either by objection to the Information or objection to the jury instructions, so the analysis was plain error review (with a rejected IAC claim also).

Eric Lamont Muhammad v. State, No. RE-2015-104 (Okl.Cr., March 17, 2016) (unpublished): Suspended Sentences: In this revocation appeal out of Oklahoma County (the Hon. Cindy Truong, presiding), the order of revocation is reversed because it took place on a Monday, but the 20-day limit expired on a Sunday, and there was no record that Muhammad had waived the 20-day time frame for a hearing. NOTE: Judge Smith dissented, apparently applying OCCA rules governing filing deadlines to these types of hearings (since the 20 days expired on a Sunday).

Roger Davis v. The Oklahoma Department of Corrections, No. 113,773 (Okla. Civ. App., Div. IV, March 14, 2016) (Released for Publication): Sex Offender Registration: Davis was convicted in Indiana of a sex crime requiring registration in 1997. He moved to Oklahoma where he had to register and lodged objections on ex post facto and equal protection grounds. The DOC had the case removed to federal court, which denied some claims, but remanded to the state district court for factual issue resolution. The Court of Appeals affirmed in part, but reversed in part on the basis that there is a claim to be argued that Davis was assigned as a level three offender without notice or evidentiary basis.

Steven Wade Jameson v. State of Oklahoma ex rel., Department of Public Safety, No. 114,321 (Okla. Civ. App., Div. IV, March 16, 2016) (Not for Official Publication): DUI (DPS): Jameson was cited for the municipal offense of Underage in Possession of Beer in Public. The municipal court in Stillwater sent notification to the DPS recommending that his license be canceled. Subsequently, he was involved in a fatal collision two months later. The district court ruled that DPS did not have jurisdiction to cancel the drivers license for the Underage offense (as a matter of statutory construction); but, on an issue whether the statute of limitations had run, that is remanded to the district court for a factual determination of when the claim accrued.

 

 

United States v. Marvin Iverson, No. 14-8071 (10^th Cir., March 16, 2016) (Published) (Hartz, O’Brien & Phillips): Hearsay; Evidence (Best Evidence Rule): Iverson was convicted by jury of a scheme to defraud JPMorgan and Big Horn Federal Savings, but the statute required that the victims be “financial institutions” which was supported by the testimony of a lone FBI agent who testified that each was FDIC insured. On appeal, Iverson argued that this testimony was inadmissible hearsay and violated the best-evidence rule. The panel affirmed, holding that the testimony was not inadmissible hearsay, and no plain error on the best-evidence rule issue because it was not raised below. NOTE: Judge O’Brien concurred, arguing that the Court could (and should) take judicial notice of the insured status of the banks but Judge Phillips dissented, arguing that Iverson should win on the hearsay issue. Note also that the Government confessed error, but Iverson still lost on appeal(!) Does this constitute a waiver of the issue by the Government? Of course not, the Court can address the legal rules anyway to deny the accused a win on appeal. The panel majority invoked a rule of appellate procedure where the Court may affirm on an unpreserved ground if doing so is fair to appellant (I kid you not, that is how the majority phrased the rule).

 

 

“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.

 

 

Kevan Brumfield v. Burl Cain, Warden, No. 12-30256 (5^th Cir., February 10, 2016): Death Penalty (MR); Habeas Corpus (Capital Habeas Cases): After a remand from the Supreme Court, a grant of habeas relief in a capital case out of Louisiana on grounds that Brumfield is mentally retarded is affirmed.

United States v. Gregorio Gonzalez-Longoria, No. 15-40041 (February 10, 2016): Federal Sentencing Guidelines (Crime of Violence): The Armed Career Criminal Act’s enhancement for a “crime of violence” was found unconstitutionally vague by the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015). The issue here is whether “crime of violence” in 18 U.S.C. 16 is also vague. In this split opinion, the Fifth Circuit joined the Seventh and Ninth Circuits in holding that it is.

United States v. James William Smith, No. 14-60926 (5^th Cir., February 10, 2016): Prosecutorial Misconduct (Vouching); Waiver (Appellate Issues): Possession of child porn conviction is reversed because the prosecutor committed plain error by vouching for the credibility of witnesses and invoking the integrity of his office in order to bolster the Government’s case. Also, there is an interesting discussion of waiver rules on appeal, since Smith convinced the trial court to grant a motion of acquittal, but that was reversed in a prior appeal. In this second appeal, the panel held that Smith did not waive his prosecutorial misconduct claim by failing to raise it as a cross-appeal issue in the first appeal.

 

 

This last weekend I discovered a hidden gem in the low-key town of Sulphur, Oklahoma, in the form of The Artesian Hotel and Spa. This hotel has been a fixture in Sulphur since 1906, but was destroyed in a fire in 1962. The Chickasaws rebuilt it again two and half years ago, and it is one of the most opulent and impressive hotels that I have seen in our state. The hotel itself seems brand-new, with a tastefully appointed lobby, spacious hallways, and rooms that represent the class of the place, but without excess gaudiness. This place is simply amazing, and a very pleasant surprise for me.

The room was $209 a night, and well worth it. My sense is that The Artesian is more of a “couples” retreat for a night or a weekend. The spa is incredible, featuring massage, a large steam room, dry sauna, and hot tubs (including a co-ed one in a common area). There are not many spas in our state that feature steam (my favorite), but this one is among the best I have seen (my gold standard of spas is the one at The Bellagio in Vegas, but the one at The Artesian is a very good facsimile on a smaller scale). Apart from the spa, the indoor-outdoor pool is very nice, but across the hallway is the largest hot tub I have ever seen anywhere. It would accommodate 23! It is like a little swimming pool, it is so big, but it is all hot jetty water, with relaxing falling water from 5 or six spouts falling onto stone and splashing below.

The food at the hotel restaurant, Springs, was also very good and incredibly affordable. My main course of meatloaf was only about $11 (with garlic mashed potatoes and asparagus), and my girlfriend’s meal was about $13 (a tasty chicken dish). The steaks were more expensive, about what you would pay at a decent steakhouse (around $35), but I did not eat one and cannot comment on those. But, the ambience was upscale, the service was very good (a rarity in our state), and the food flavorful.

The hotel features a “casino” which, like many casinos here in Oklahoma, is a smallish room loaded with slots. There were four table games (Ultimate Texas Hold’Em, blackjack, and Let it Ride), but only one going when I was there on Saturday, and I did not play any of them or the slots. I would like it if they had actual poker there, but there are no poker tables. The casino seems like an afterthought, and is perhaps out of place there, but it is there if you like slots or those table games.

The idea seems to be to add other shops around the hotel, and although some of the space is currently vacant, there is a neat spice shop, as well a diner and a smoke shop. The spice shop had a large assortment of teas, sugars, salts, and spices. I saw a similar shop in Seattle at Pike Place Market and bought some smoked salt on that trip (yes, it’s sea salt that is smoked and the flavor is unique and tasty). It had smoked salt and about twenty other flavors, and many other spices to sample by lifting the lid and smelling them. Even if you are not a foodie, it is a cool store (I bought a pre-mixed pack of spices for some chicken tortilla soup that I am going to try out soon).

The Artesian seems to offer a lot for kids as well, including a “kids spa” with activities and services, but to me the entire vibe of the place is that of a couple’s retreat or even a getaway for women (we saw quite a few groups of women only checking in and walking around). The place is so beautiful and nicely appointed that it really is odd to think that you are in Sulphur. If you need a weekend getaway to de-stress, I would recommend this place without a doubt.

NICETIES: Pillows: many hotels seem to have what I call “thin pillows” which are the ones that you lay on and they just compress all the way down to the mattress. I have never understood why hotels have these because they are horribly uncomfortable and can give you a neck crink in the morning. I suppose they are just cheap, but pillows are not expensive anyway. The pillows at The Artesian were firm and did not sink—a pleasant surprise. Hot tub: I mentioned the huge hot tub, but this thing must be seen to be believed. It is huge. Hallways: the hallway on our floor (the fourth floor) was not the normal hotel hallway (narrow with just rooms); rather, it had opulent couches and seats in a large area. I do not see that too often in hotels. Intangible: sometimes a place just “works” and has a feel to it that is just pleasant. This place has that. Also, even though we were there on a Saturday, it did not seem too busy. That might change once folks find out more about this place.

TIP: The spa is on the second floor. My girlfriend suggested that if we ever go back, we should probably request a room on the second floor to make it easier to walk down to the spa (steam, hot tub, dry sauna, and massage). Might be a good idea.

DINGS: I cannot really find a whole lot to criticize about this hotel. We did order room service for breakfast, and they did not include any butter or jelly for the toast (although they had “French pressed coffee” which is pressed and a little stronger than normal, which I loved). A minor oversight, very common with service in Oklahoma (if you travel outside of our great state and experience service at top hotels you will know what I mean), but that is about all I can muster as far as a critique. Another might be the simple fact that it is in Sulphur, which means that once you get around the place, there is not much else around to do. That should not be a problem because if you are there for a day or two, you won’t want to leave. NOTE: Just off the interstate at Davis is the Bedre Fine Chocolate factory. We stopped there on Sunday, and the factory itself was closed (the machines can be seen through the large glass wall, but they were not operating), but the shop was open. It is a neat place as well to stop and see either to or from Sulphur.

Check it out!

 

 

MIKE ROBERTS, Enid, secured dismissal of child porn charges against a former Major County deputy (Fairview). The details are a little sketchy, but it looks like Mike did a great job on this case.

WINSTON CONNOR, II, Miami, was able to get charges of lewd acts dropped against his client, apparently on the basis of new evidence. Nice work, Winston!

 

 

MCCLENDON CRASH: Former CEO of Chesapeake Energy, Aubrey McClendon was driving roughly 88 mph when he slammed into a bridge abutment and died in the subsequent crash, less than a day after he was indicted on allegations of anti-trust violations.

PENNSYLVANIA JUDICIAL MELTDOWN: The Attorney General of Pennsylvania, Kathleen Kane, is embroiled in a risqué e-mail scandal, and she is taking others down with her. She has released hundreds of e-mails circulated among government officials and jurists which have resulted in two justices of the state Supreme Court resigning.

SECOND CHANCE: When Ohio botched an execution back in 2009, when it could not insert properly an IV to deliver the execution drugs, the execution was called off. Last week, the Ohio Supreme Court ruled that the State may attempt the execution again.

NORTH KOREA: A 21-year-old college student visiting North Korea decided to steal a propaganda banner from his hotel. He was caught and sentenced to 15 years at hard labor.

JARED GETS ROUGHED UP: Jared Fogle, the disgraced former pitchman for Subway, was beaten up by another inmate in the prison rec yard in January.

OKLAHOMA DEATH PENALTY: Attorney General Scott Pruitt is insistent that, despite the State botching the last three executions, his office will pursue the death penalty once it has completed its investigation.

NEW MARSHALS: Eleven marshals of the Cherokee Nation in Tahlequah were cross-deputized as U.S. Marshals.

JUDGE vs. SHERIFF: Oklahoma County district judge Ray C. Elliott has reduced the per diem for inmates at the Oklahoma County Jail from $44.51 to $32.

DEPUTY PROFILE: The Duncan Banner profiled four female deputies of the Stephens County Sheriff’s Office.

RIP SAMMY: Longtime death row inmate Samuel Van Woudenberg died last week at the age of 65, after spending 32 years on death row.

OSCN UPDATE: OSCN added more counties to the web site, with more to come.

DEPUTY CHARGED: A Pushmataha deputy sheriff has been charged with embezzlement. A more detailed story can be found HERE.

NO MORE: Custer County Sheriff Bruce Peoples has announced that he will not run for re-election, citing frustration with the risk/reward aspect of the job.

JUDGE APPOINTED: Gov. Fallin has appointed a former prosecutor, Michele McElwee, to the bench in Oklahoma County.

BAIL SCHEDULE: The new Presiding Judge in Oklahoma County, the Hon. Don Deason, says that he is going to make some changes in how bail is set.

JAILER FILED: A jail supervisor in Muskogee has been fired, and is also under investigation by the OSBI.

 

WACKY CRIME

Thieves in Custer County stole a truck—owned by Assistant District Attorney Ricky McPhearson; a woman in Oklahoma City went cuckoo for cuckoo clocks—her neighbor’s cuckoo clocks; a prison fight in Cushing was caught on camera—by another inmate using a cell phone; a Casanova in Duncan ended up behind bars after he thought the cops were his lover’s “old man”; a woman in Tahlequah decided to cash some stolen checks—at the bank where the victim worked; a man from Foster, Oklahoma, was arrested for selling marijuana, but insisted that he does not sell it, he just uses weed as currency; a homeless man in Tulsa is back in the slammer after committing a burglary—across the street from the police station; find out if you live in one of the ten drunkest cities in Oklahoma.

 

 

FRIDAY, MARCH 25, 2016: The 11^th Annual Oklahoma Forensics Academy will take place at the Moore-Norman Technology Conference Center, 13301 S. Pennsylvania, Oklahoma City, OK, and will be good for 7 CLE credits (includes 30 minutes of ethics).

THURSDAY, MARCH 31, 2016: The O.U. College of Law will host Jonathan Rapping, a MacArthur Foundation Fellow, who will give a talk on criminal justice reform titled, “Creating a New Criminal Justice Narrative: The Role of Public Defenders in Driving Reform.” Also on this day, Tulsa will host the Oklahoma Criminal Justice Panel on Sentencing Reform.

 

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