OCDW 04.11.16

 

(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. Blacksher, 2016 OK CR 8 (April 4, 2016): DUI; After-Formers (Enhancement): In this DUI case out of Lincoln County, Blacksher was charged with felony DUI (AFCF x 2) but none of his prior were DUI related, so he moved to strike the second page on the basis that DUI can only be enhanced with the specific enhancement provisions under title 47. The Hon. Cynthia Ferrell Ashwood granted the motion. The State appealed, and in this opinion the Court reversed, holding that enhancement under title 21 was proper.

Loretta Marjorie Hawks v. State, No. F-2014-764 (Okl.Cr., April 5, 2016) (unpublished): Aiding and Abetting; Prosecutorial Misconduct (Improper Argument): Hawks was convicted by jury in Cleveland County (the Hon. Thad Balkman, presiding) of Murder I, Burglary, and Kidnapping (along with co-defendants with whom she was guilty as an aider and abettor). The Court reversed the Murder I charge on the basis that, although the jury was properly instructed, the prosecutors argued both to the jury and the judge that aiding and abetting had no specific intent element. NOTE: The two prosecutors were Susan Caswell and Christy Miller. This opinion is significant on the law of aiding and abetting. It is puzzling why it was not published. Judges Lumpkin and Lewis dissented.

Steven R. Jennings v. State, No. F-2015-187 (Okl.Cr., April 7, 2016) (unpublished): Double Jeopardy; Waiver (Appellate Issues): Jennings was convicted by jury in Tulsa County (the Hon. Doug Drummond, presinding) of two counts of Domestic A&B (AFCF x 2). The Court found that Jennings engaged in one course of conduct, therefore double punishment violated 21 O.S. 11. NOTE: The error here was preserved for appellate review when counsel objected orally at sentencing.

Stuart Chance Jones v. State, No. F-2014-783 (Okl.Cr., April 8, 2016) (unpublished): Deferred Sentences: Jones pled guilty as a Youthful Offender to Burglary I in Tulsa County before the Hon. Mark Barcus, was bridged, and eventually ended up on a deferred sentence. In this acceleration appeal, based upon a new offense, he argued that the State failed to present evidence of the new crime because it failed to introduce the preliminary hearing transcript. The Court rejected this argument because the record showed that the trial court reviewed the transcript, even though the State did not technically introduce it into evidence. NOTE: There was no objection below, so the analysis was plain error. I am informed that the DAC has been circulating Jones in the belief that it modifies Wortham v. State, 2008 OK CR 18 (mentioned in the opinion).

Sean Matthew Kane v. State, No. F-2015-533 (Okl.Cr., April 8, 2016) (unpublished): Deferred Sentences; Appeal Out-of-Time: This is another acceleration case out of Payne County (the Hon. Stephen R. Kistler, presiding). The trial court accelerated sentence, but failed to make a record that he informed Kane of his right to withdraw his plea. This was error, but since the deadline had passed, the Court stated that the proper avenue open to Kane was to pursue an appeal out-of-time.

Gregory Antwon O’Neal v. State, No. F-2013-958 (Okl.Cr., April 5, 2016) (unpublished): Prosecutorial Misconduct (Improper Argument): O’Neal was convicted by jury in Tulsa County (the Hon. James M. Caputo, presiding) of First Degree Murder by Child Abuse and sentenced to LWOP. The Court affirmed the conviction, but vacated the sentence because of the conduct of prosecutor Sarah McAmis who used a doll to re-enact the injuries to the child during closing arguments. NOTE: Judges Lumpkin and Hudson dissented. Also, this case go some media attention, see the story HERE.

Nathan J. Schuermann v. State of Oklahoma ex rel. Department of Public Safety, No. 113,166 (Okla. Civ. App., Div. IV, April 8, 2016) (Not for Publication): DUI (DPS): Schuermann was involved in an accident, and arrested for DUI (he refused the breath test). DPS appealed the denial of revocation. The Court affirmed because the supplemental affidavit supplied by the officer (to cure deficiencies held invalid in prior cases) did not contain a new notice of revocation.

 

 

United States v. William Kurtz, No. 15-2140 (10^th Cir., March 29, 2016) (Published) (Lucero, Matheson & Bacharach): Federal Sentencing Guidelines (Sentence Modification): Denial of sentence reduction under 18 U.S.C. 3582 is affirmed. Appellate counsel filed an Anders brief and the panel agreed, noting that his sentence of 78 months was still below the range of any amendment range.

United States v. Eric Leo Alexander, No. 15-2086 (10^th Cir., April 4. 2016) (Published) (Tymkovich, C.J., Briscoe & Matheson): Sex Offender Registration: Conviction for failure to register as a sex offender is reversed based on an erroneous jury instruction.

United States v. Cameron Taevon Jones, No. 15-6119 (10^th Cir., April 5, 2016) (Published) (Tymkovich, C.J., Briscoe & Matheson) (W.D. Okla., the Hon. Stephen Friot): Supervised Release: The sole Government witness testified to hearsay evidence during the hearing on revocation. The panel reversed, holding that Rule 32 requires a balancing test to determine whether hearsay evidence may be considered for revocation.

 

 

“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).

 

Jeffrey Woods, Warden v. Timothy Etherton, No. 15-723 (U.S., April 4, 2016) (per curiam): Habeas Corpus (AEDPA Deference): Grant of habeas relief in this non-capital case is reversed because on the question of IAC (whether counsel should have raised a Confrontation Clause argument regarding the admission of an anonymous tip) because under AEDPA deference the ruling is reasonable.

Nichols v. United States, No. 15-5238 (U.S., April 4, 2016): Sex Offender Registration: Nichols, a sex offender, left Kansas and moved to the Philippines. The question is whether federal law required him to update his registration status in Kansas when he left. The Court held that it does not. NOTE: This opinion resolves a circuit split between the Eighth and Tenth Circuits (the Tenth was reversed in this opinion).

 

 

JAMES L. HANKINS, Edmond, was pleased to see an article in the Tulsa World detailing the legal trials and tribulations of his client, Michael Nolte, who concluded a 30-year prison odyssey, including a stint on death row where he came within hours of execution, by walking out of prison last year a free man. His story is compelling, he is an amazing person, and his is one of my most satisfying cases. Good luck, Michael!

TERRY HULL, OIDS, secured a reversal on appeal of the murder conviction for her client Loretta Marjorie Hawks, featured in the unpublished opinion, supra. Terrific job, Terry!

DAVID HAMMOND, Duncan, won a nice suppression motion in a drug trafficking case before the Hon. Ken Graham (the issue apparently involved a warrantless arrest inside a home and the State relied on “protective sweep” when the suspect was handcuffed on the ground). Good job, David!

JOI MCCLENDON, OKC, won yet another Murder I jury trial in Oklahoma County. The details on this one are scant (involving a burned body inside a vehicle), but any murder trial win is noteworthy. Good work, Joi!

 

 

OFFICER CHARGED: An Oilton police officer has been charged with possession of child porn.

DIRECTOR NAMED: The Oklahoma Ethics Commission named Ashley Kemp as the new Executive Director. Ashley is my cousin, and I think she will do an outstanding job.

NEW CLERK: Rick Warren, Jr., is the new Oklahoma County Court Clerk.

NEW SHERIFF: Vic Regalado has been elected the new Tulsa County Sheriff.

JAILER ARRESTED: A jailer in Craig County has been arrested for having sex with an inmate.

INTERIM CLERK: Kristel Gray has been named interim Court Clerk in McClain County. Elsewhere, the Court Clerk in Garfield County, Margaret Jones, has announced her retirement.

OFFICER ARRESTED: A Creek Nation police officer has been arrested for shoplifting at Wal-Mart.

DEATH ROW DEATH: The oldest inmate on death row in Texas has died—of natural causes at age 78.

U.S. MARSHAL TURMOIL: There has apparently been “turmoil” for about a year in the U.S. Marshal’s Office in the Western District. The Chief Deputy U.S. Marshal has been placed on administrative leave, for reasons not clear, but stated through his attorney, Stephen Jones, that he intends to fight the accusations.

 

WACKY CRIME

OFFICER INJURED: A Tulsa police officer was injured when she dropped an ammo bag—and a round exploded.

SEWER SERVICE: Police and Postal Inspectors are investigating a complaint at an apartment complex when someone saw a mailman dump an entire bucket of letters in the trash.

CHAIN REACTION: A Duncan man has been arrested for pawning a chainsaw—that he had borrowed from another pawn shop.

STOLEN GNOMES: A Medford man was arrested for possessing stolen garden gnomes.

PRANKED: A Burger King in Shawnee was the victim of a prank caller who convinced employees that he was with the Fire Marshal and that high levels of carbon monoxide in the store required breaking the windows.

NO GUITAR: A Tahlequah man, irritated at the incessant guitar playing by his neighbor—bit his neighbor.

 

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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.

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