OCDW 07.25.16

 

(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).

 

 

Christopher Wayne Goldman v. State, No. F-2015-457 (Okl.Cr., July 20, 2016) (unpublished): Double Jeopardy; Standard of Review (Plain Error); Jury Instructions (Sex Offender Registration): Goldman was convicted by jury in Muskogee County (the Hon. Thomas H. Alford, presiding) of rape, forcible sodomy, and incest. The Court affirmed mostly, but reversed the conviction for incest because the rape and incest counts were based upon the same act, thus double punishment was prohibited by 21 O.S. 11. Also, the Court rejected a claim that the jury must be instructed on sex offender registration. NOTE: This legal claim was not raised in the trial court, but the Court found plain error warranting relief.

Dehrian Eugene Berry Wilson v. State, No. F-2015-147 (Okl.Cr., July 19, 2016) (unpublished): Shackling: Wilson was tried by jury in Tulsa County (the Hon. Mark Barcus, presiding) of Robbery w/Firearm and Assault While Masked. The Court affirmed over several claims, but I included the opinion because it has a discussion of the use of a shock-sleeve on Wilson during trial and how this relates to 22 O.S. 15.

State v. Lloyd Kennedy, No. CRF-1972-197 (Sequoyah County): Post-Conviction (Sentence Modification): This is an Order granting post-conviction relief by the Hon. Jeff Payton to Lloyd Kennedy based upon health concerns, age and the long number of years served. Kennedy was convicted of Murder in the First Degree in 1973. Judge Payton ordered modification of the sentence to time served.

 

 

Matthew Hale v. Jack Fox, Warden, No. 14-1294 (10^th Cir., July 19, 2016) (Published) (Tymkovich, C.J., Holmes & Matheson): Habeas Corpus (Second or Successive): Hale was convicted of obstruction of justice and soliciting the murder of a federal judge. He tried a 2255 but was denied. In this case, he tried further appeals, but the panel found lack of jurisdiction under 2255(e) pursuant to circuit precedent.

United States v. Cody Little, No. 15-2019 (10^th Cir., July 19, 2016) (Published) (Tymkovich, C.J., Lucero & Holmes): Possession; Aiding and Abetting; Jury Instructions (Deliberate Ignorance): In this felon in possession of a firearm case, the panel applied SCOTUS precedent that changed circuit precedent, holding: constructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object. Although the jury was instructed erroneously, the error was harmless. Also, the panel noted further that circuit law allows a district court to instruct on aiding and abetting even when the Government argues that a defendant was a principal. Finally, the panel found error on a deliberate ignorance instruction based upon constructive knowledge, but this too was harmless. NOTE: Judge Holmes dissented on the constructive possession jury instruction, and would hold that it was not harmless.

 

 

“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.

 

 

Aldridge Currie v. Neil McDowell, Warden, No. 13-16187 (9^th Cir., Jun 8, 2016): Peremptory Challenges: Federal habeas grant is affirmed in this 2-1 split decision on a Batson claim. The dissent viewed the treatment of the issue by the state court as not unreasonable under the AEDPA.

Tony Goodrum v. Timothy E. Busby, Warden, No. 13-55010 (9^th Cir., June 9, 2016): Habeas Corpus (Second or Successive): Reversing the district court, the panel held that, just as a new habeas petition filed in the district court while a first petition remains pending is not second or successive; a new petition filed in the court of appeals while a first petition remains pending also is not a second or successive petition subject to the standards of 2244(b).

United States v. Tyrone Davis, No. 13-30133 (9^th Cir., June 13, 2016) (en banc): Sentence Modification: In this complicated opinion, the en banc court held that a sentence reduction under 18 U.S.C. 3582(c)(2) is available to a defendant even if they entered a plea of guilty pursuant to a plea agreement.

 

 

KEN SUE DOERFEL, Lawton, represented a client charged with Possession of CDS (Marijuana) with Intent to Distribute. At preliminary hearing, Judge Herberger dismissed the case based upon the lack of proximity of the client to the CDS in the trunk, and the lack of evidence that the accused had knowledge of the CDS, in the trunk of a car that he did not own and he was not driving. Nice work, Ken Sue!

RAYMOND DENECKE, Norman, secured a good result in a recent parole case. After being appointed to represent a client out of Wagoner County on felony murder and drug charges, the client arrived at LARC with health problems (difficulty breathing). The client eventually was seen at O.U. Medical Center and was diagnosed with stage 4 lung cancer and given about 9 months to live. At Ray’s direction, the client applied for a medical parole, which languished in the system. The client eventually got a hearing before the Pardon and Parole Board—on Ray’s birthday—and Ray was there to talk to the Board on a jacket review. Because of a snafu in DOC, the client was sent to OSP, and was transported for chemo treatment to O.U. Medical Center every day. The Board denied parole. Undeterred, Ray contacted the doctor at OSP to apply the client for another medical parole. It was not until July of this year that the client, still alive, got on another parole docket. Ray advocated for the client again, who was by this time in a wheelchair with cancer spreading to his brain and bones. Four members of the Board (sans Board Member Pattye High), voted on the matter, and by a vote of 3-1, approved parole. Ray and the client are now waiting for Gov. Fallin to approve it. This is a good example of tenacious advocacy. Nice work, Ray!

 

 

INCREASED SECURITY: Security will be beefed up at the Comanche County Courthouse in Lawton. Also, courthouse security is a concern in Kay County as well.

OFFICER CHARGED: A former police officer n Cyril has been indicted by a grand jury for perjury and destruction of evidence.

SHERIFF ARRESTED: The Love County Sheriff has been arrested on accusations by a grand jury of neglect of duty and maladministration.

CHIEF RESIGNS: The Chief of Police in the town of Cordell has resigned.

RIFLES: The Oklahoma City Police Chief has reversed his stance on allowing officers to carry their own rifles.

BODY CAMS: The Norman Police Department will soon have body cams for officers. Also, the Tulsa Police Department has received a federal grant to obtain body cams.

EXONERATION: A man who spent 18 years in prison was freed last week in Oklahoma County.

OFFICER SHOOTING DEATHS: A record 33 officer-involved shooting deaths occurred in Oklahoma in 2015.

RETIREMENT: Judge Michael Claver (Okmulgee County) has announced his retirement.

FIELDS SELECTED: District Attorney Michael Fields (Garfield, Canadian, Grant, Kingfisher, and Blaine Counties) has been selected as President of the Oklahoma District Attorneys Association.

 

WACKY CRIME

WAYBACK MACHINE: NewsOK recalls how Machine Gun Kelly kidnapped a businessman in Oklahoma City back in the 1930s.

WAYBACK MACHINE II: The Tulsa World covers the shooting death of Officer Gus Spanos in 1993 sparked the use of dashcams.

FEELS GOOD: A woman in Enid gave discounts to customers at J.C. Penney where she worked because it felt good. Unfortunately, it is also embezzlement.

BEVO BLUES: Someone pilfered an upside-down Bevo the Longhorn from the Comanche National Museum and Cultural Center.

COM-TAHLEQUAH: This Cranky Old Man ™ got upset at a FedEx driver and threatened to blow out his tires with a shotgun.

DWNATS: A man in Alva was arrested for DWNATS (Driving While Naked and Touching Self).

ASSAULT: A man in Stephens County has been arrested for assaulting antiques…with tomatoes.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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