OCDW 05.23.16

 

(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).

 

 

Cyndie Dee Jones v. State, No. F-2015-352 (Okl.Cr., May 11, 2016) (unpublished): Jury Instructions (Sex Offender Registration): Jones was tried and convicted by jury in Haskell County of Enabling Child Sexual Abuse. She raised several claims on appeal, including denial of a jury instruction to inform the jury that she would have to register as a sex offender. The Court denied this claim, but I included the opinion because Judge Smith, P.J., concurred in the result, holding that the jury should be advised of the applicability of the Sex Offender Registration Act. Thus, the issue seems foreclosed for now, but there is one judge on the Court with an opposing view, so such instructions should still be sought at trial.

Martin Shon High v. State, No. F-2015-208 (Okl.Cr., May 13, 2016) (unpublished): Confrontation and Cross-Examination (911 Call): High was tried in Garvin County at a bench trial before the Hon. Seven C. Kendall, and convicted of Murder in the First Degree. He was sentenced to LWOP. The primary issue raised on appeal dealt with the introduction of hearsay in the form of a 911 call. The Court found no error in this case (and harmless error, in any event), but the analysis is good because it highlights Supreme Court precedent in this area and sets forth with some clarity the criteria by which such calls may be admitted.

State v. Henry Joseph Arthur, Jr., No. S-2015-402 (Okl.Cr., May 13, 2016) (unpublished): State Appeals; Identification: Arthur was charged in Oklahoma County with Forgery (Second Degree; AFCF x 2), and the Hon. Susan K. Johnson, Special Judge, bound him over for trial. However, the Hon. Ray C. Elliott granted a motion to quash on the basis that there was no in-court identification of the accused. The State appealed, and in this opinion, the Court reversed, holding that other evidence supported a finding of probable cause to believe that Arthur committed the charged offense. NOTE: Judge Hudson penned a lengthy dissent on the basis that “no one identified the defendant at preliminary hearing as the man depicted in the surveillance photos cashing the forged check belonging to the victim.”

Jimmy Don Myrick v. State, No. F-2015-36 (Okl.Cr., May 13, 2016) (unpublished): Supplementation of the Record: Myrick was tried in McCurtain County at a bench trial before the Hon. Gary Brock on a charge of Possession of CDS. Myrick defended on appeal on the basis that the State had failed to present evidence that he was represented by counsel in his prior conviction (a misdemeanor possession of marijuana count used to enhance the current charge to a felony). Myrick would win this appeal, but the State moved to supplement the record pursuant to Rule 3.11 with a certified copy of the waiver of attorney form. The Court granted the motion and denied relief on this basis. NOTE: I included this opinion because it seems to me that supplementation under Rule 3.11 was not authorized under those circumstances, but the Court allowed the State to do it anyway. This opinion might come in handy if the accused wishes to do the same in the future. Also, Judge Lumpkin actually dissented to allowing the State to supplement the record because the document was not identified properly or subject to cross-examination; and in his view the proper procedure would be to remand for an evidentiary hearing.

 

 

Juston Shaw v. Robert Patton, Director, No. 15-6106 (10^th Cir., May 18, 2016) (Published) (Hartz, Bacharach & Phillips) (W.D. Okla., the Hon. Lee R. West): Sex Offender Registration: In this sprawling, detailed opinion, the panel holds that Oklahoma’s registration scheme is not punitive so as to invoke Ex Post Facto protection to a person who moves into the state, thus retroactive application is acceptable. NOTE: The panel disagreed with the contrary opinion of the Oklahoma Supreme Court in the Starkey case.

United States v. Brian Von Behren, No. 15-1033 (10^th Cir., May 10, 2016) (Published) (Briscoe, Seymour & Lucero): Privileges (Fifth Amendment); Supervised Release: Excellent opinion dealing with a polygraph test administered to a sex offender on supervised release that asked the offender if he had committed criminal acts not charged. The panel found this was a violation of the Fifth Amendment right against self-incrimination.

 

 

“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.

 

 

RANDY LYNN, Tulsa, secured a judicial finding of “actually innocent” for his client, Matthew Richard Parker. Excellent work, Randy!

KEN SUE DOERFEL, Lawton, and JOSH LEE, Vinita, and CHRISTINA GREEN, also secured a judicial finding of “actually innocent” for her clients De’Marchoe Carpenter and Malcolm Scott in Tulsa last week. Lots of good news out of Tulsa! Nice work, Ken Sue!

 

HEARSAY

 

FUGITIVE CAPTURED: A man on the lam since 1968 (the year I was born) has been recaptured.

STILLWATER: Filming is underway in Stillwater for the crime drama of the same name.

AI LAWYER: Interesting article about how computer AI can be used to create a virtual lawyer.

DOC WOES: In the wake of the grand jury report on the botched executions, Attorney General Scott Pruitt piles on.

HELPING VICTIMS: There apparently is a program offered by OSU-OKC concentrating on crime victim/survivor services, and eight new graduates.

MEA CULPA: A letter to the editor in Stillwater contains a confession that the writer made up a false story about a police officer.

TULSA COUNTY: Tulsa County ranks high nationally, and statewide, among counties having the most exonerated criminal defendants.

PAROLE DENIED: Larry Yarbrough has been in prison for 22 years for one ounce of cocaine, and was denied parole recently by a 5-0 vote.

NEW PLATES: Oklahomans will have to purchase new license plates next year if the state House has its say. The ones we have now have a reflective coating that wears off, making it more difficult for police to see. So the Legislature is fixing that “problem” by mandating new license plates.

GARVIN COUNTY: Major renovations are in store for the Garvin County courthouse.

PROSECUTOR DISBARRED: Former St. Charles Parish (Louisiana) District Attorney Harry Morel has been disbarred after being convicted of a federal obstruction charge.

NEW LAW: Gov. Fallin has signed into law the new creating the option of “guilty but mentally ill.”

NEW WARDEN: DOC has named Kevin Duckworth of Norman as the new interim Warden at OSP.

JAIL CONTRABAND: Two employees at the Oklahoma County Jail were arrested for bringing contraband into the facility.

 

WACKY CRIME

 

WRONG HOUSE: A hit man in Ohio carried out a contract killing—at the wrong house.

MOONSHINE: Bad moonshine claimed in death, making others ill.

HEAD-DENT: An angry man in Chickasha dented a patrol car—with his head.

CONTRABAND DROP: Officials at Jim E. Hamilton Correctional Center in Hodgen, found duffel bags containing quite a haul—including sports bras and mousetraps.

THE BIG HOUSE: Authorities have alleged that an inmate with the cool name of Slint Tate is the ringleader of a huge drug ring—all operated by Tate from prison using a cell phone.

DOMESTIC: A domestic dispute meandered through the city until it crashed through the gate at the Governor’s mansion.

WATER THEFT: An ex-convict has been accused of stealing—water.

MEMORIAL: A wacky roadside memorial in the town of Beggs went viral a couple of weeks ago.

 

 

THURSDAY, JUNE 23 & FRIDAY, JUNE 24, 2016: The 2016 Patrick A. Williams Criminal Defense Institute & OCDLA Annual Meeting will take place at the Hard Rock Hotel & Casino in Catoosa (Tulsa).

 

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