OCDW 10.10.16

 

(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).

 

 

Emanuel DeWayne Mitchell v. State, 2016 OK CR 21 (October 7, 2016): Pro Se Representation; Accomplice Liability; After-Formers: Mitchell was convicted by jury in Oklahoma County (the Hon. Timothy R. Henderson, presiding) of Murder I and Conspiracy to Commit Robbery w/Dangerous, as well as UUMV in a “consolidated action.” Mitchell was involved in the Reliable Pharmacy episode which received extensive media attention when pharmacist Jerome Ersland was convicted also for killing one of the robbers. In this case, Mitchell represented himself, and his first claim on appeal was that the trial court erred in letting him do so. The Court rejected this claim, in an extensive discussion of the right of self-representation and the role of stand-by counsel. A claim that the testimony of an accomplice was not corroborated sufficiently was also rejected. Finally, the Court found error when the State introduced the fact that Mitchell had received suspended sentences in his prior convictions, but this was harmless. NOTE: In his previous trial, Mitchell had physically attacked District Attorney David Prater in court and in front of the jury.

In Re: Revision of Portion of the Rules of the Court of Criminal Appeals, 2016 OK CR 20 (October 5, 2016): Court Rules: The Court updated some of the Rules, including matters such as sealing documents, how child pornography exhibits are handled on appeal, and restricting information from being published on-line.

Kathy Lynn Logan v. State, No. RE-2015-735 (Okl.Cr., September 30, 2016) (unpublished): Indigents; Suspended Sentences; Waiver (Right to Counsel): The Hon. David R. Bandy (Kay County) revoked 8-years of the suspended sentences Logan was serving. The Court reversed because Logan appeared at the revocation hearing pro se, and Judge Bandy did not make a proper record of a waiver of her right to counsel, nor ascertain her financial situation. This is another case where the trial court applied the rule that if the defendant makes bail, then they do not get a lawyer (instead of merely applying a presumption and then taking evidence whether the accused can overcome it).

Tammy Aurora Mann v. State, No. F-2015-1098 (Okl.Cr., September 27, 2016) (unpublished): DUI (Blood Draw): Mann was convicted by jury of Manslaughter in the First Degree in Canadian County (the Hon. Gary E. Miller, presiding), and sentenced to 20 years. Affirmed over several claims relating to the admission of blood tests, compliance with the BOT rules, and lay opinion on intoxication.

State v. John C. Angulo, No. S-2016-95 (Okl.Cr., September 27, 2016) (unpublished): State Appeals; Search and Seizure (Traffic Stops; Drug Dogs): This is a State appeal out of Sequoyah County involving drug charges. The Hon. Jeffrey Payton granted a motion to suppress. Angulo was stopped by an OHP trooper who wrote a warning, but then asked for permission to run the drug dog around the car, and Angulo said no. The trooper deployed the canine anyway. In this opinion, the Court rejected the State’s appeal and affirmed the suppression order. NOTE: Judge Hudson dissented, finding an abuse of discretion.

State ex rel. Department of Public Safety v. $2,785.00, No. 115,084 (Okla. Civ. App., Div. II, September 27, 2016) (Not for Official Publication): Forfeiture: This case involved a traffic stop for speeding, and a subsequent finding of a small bag of marijuana in the driver’s pocket, rolling papers in his other pocket, and a hand-rolled cigarette in the ashtray. $2,785.00 in cash was found in a shaving bag in the backseat. The district court held that the money was in “close proximity” to the drugs and thus forfeitable, and in this opinion the panel agreed.

 

 

United States v. Rachel Basurto, No. 15-2119 (10^th Cir., August 19, 2016) (Published) (Matheson, Seymour & Bacharach): Fines: The panel granted rehearing in this case, but again affirmed the imposition of a fine of $13,133.33 in the case of a woman who was on disability, but co-owned a home with her husband.

Michael W. Wood v. Tracy McCollum, Warden, No. 16-6067 (10^th Cir., August 16, 2016) (Published) (Hartz, Murphy & Phillips): Habeas Corpus (Exhaustion): This case involves a “mixed” habeas petition which alleged both exhausted and unexhausted claims. In these cases, the district court must either dismiss the entire petition without prejudice in order to permit exhaustion, or deny the entire petition on the merits. Here, the district court denied all claims except one, and dismissed the remaining claim without prejudice. This is not one of the options under circuit precedent, thus the judgment is vacated.

United States v. Jakota Allen Wolfname, No. 15-8025 (10^th Cir., August 26, 2016) (Published) (Tymkovich, C.J., Hartz & Moritz): Jury Instructions (Resisting): Relief is granted under plain error review when the jury was not instructed that assault is an element of the federal resisting arrest statute. NOTE: There appears to be a circuit split on this legal question.

United States v. Robert G. Lustyik, Jr., No. 15-4050 (10^th Cir., August 15, 2016) (Published) (Tymkovich, C.J., Briscoe & Matheson): Classified Information: This case involves a 24-year veteran FBI agent who was indicted for obstruction of justice. He pled guilty, but trial counsel sought a security clearance in order to review evidence for sentencing. The district court denied this request, and the panel affirmed.

 

 

“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.

 

 

Marion Wilson, Jr., v. Warden, No. 14-10681 (11^th Cir., August 23, 2016) (en banc): Habeas Corpus (General): This opinion involves aspects of habeas law of what to do when a state appellate court issues a summary opinion with no reasoning. The question is whether a federal court must “look through” the summary opinion to the last court that issued a reasoned opinion. The full court concluded that they need not do so.

Aldridge Currie v. Neil McDowell, Warden, No. 13-16187 (9^th Cir., June 8, 2016): Peremptory Challenges: Denial of a habeas petition is reversed on the basis of racially motivated peremptory challenges by the prosecution.

Rashaad A. Imani v. William Pollard, No. 14-3407 (7^th Cir., June 22, 2016): Pro Se Representation: Habeas relief is granted when the state courts violated the right of Imani to represent himself.

 

 

JARROD HEATH STEVENSON, OKC, scored a nice appellate win in the Logan case featured above, where Judge Bandy forced the client to a revocation hearing pro se. Nice win, Jarrod!

MARK KANE, Bartlesville, heard a “not guilty” verdict recently in Washington County in a case where is client was charged with four counts stemming from a police chase. Client had two priors and could not testify, but the “passenger” in the vehicle claimed the client was driving and ran away from the scene. Mark commented that this was the first case he has tried where the jury ordered lunch—and reached a verdict before eating it. Good work, Mark!

VICKI FLOYD, OKC, won a Trafficking jury trial in Oklahoma County. The case involved 162 pounds of marijuana from a vehicle in which four persons were found, including the 19-year-old client who did not have a DL, nor was it her car. The case actually was hung 11-1 in favor of not guilty back in May, and the State elected to re-try it. Vicki reported that Judge Stuart gave her client a fair trial. Good work, Vicki!

NICK LEE, OKC, scored a nice win in Kay County in a DUI case involving a roadblock, but when the State was unable to prove any written policy regarding the roadblock, Judge Turner dismissed the case. Good job, Nick!

LARRY MONARD, Lawton, after seven hours of deliberations, a jury in Comanche County acquitted Larry’s client of first-degree murder. Nice work, Larry!

BEN MUNDA, Oklahoma County Public Defender, defended a client who was in a dating relationship with the complaining witness, after having served 12 years in DOC for Trafficking, and he allegedly hits her in the mouth. She returned to the apartment they shared and he tried to break in after she locked him out. Ben pursued a motion to quash on the basis that the client did not have any intent to commit a crime inside, and Judge Elliott agreed. Nice result by Ben!

ROB RIDENOUR, Federal Public Defender, secured an acquittal for a client in federal court in Tulsa who was charged with federal cyber-stalking. Nice work, Rob!

 

 

D.A. GRANT: District Attorney Orvil Loge (Muskogee) has received a grant to prosecute domestic violence cases.

AWARDS: Several deputies were honored recently by the Oklahoma Sheriff’s Association.

DISCUSSION: The Chief of Police in Norman recently discussed issues with the Red Dirt Report, including the militarization of police forces, use of force, and other topical issues.

RETIREMENT: Judge Gary Miller (Canadian County) addressed a crow of folks gathered for his recent retirement party.

BOT MEETING: The Board of Tests held an emergency meeting to address the administration of breathalyzer tests in response to the Sample case.

COP CAMERAS: New research shows that police body-cams reduce the number of citizen complaints dramatically.

SWORN: Former Assistant District Attorney Irma Newburn has been sworn in as a new district judge in Comanche County.

OFFICERS SUSPENDED: The Police Chief of Muskogee has suspended officers involved in a pepper-spray incident of an elderly woman.

LAWYER RESIGNS: Attorney Mark Hixson has resigned from the Board of the Office of Juvenile Affairs after being arrested and charged with soliciting prostitution.

OFFICER CHARGED: A police officer in Edmond has been charged with exposing himself while on duty.

DOC PHYSICIANS: The Oklahoman has reported that more than one-third of DOC physicians have been disciplined by the Medical Board.

CHIEF RESIGNS: The Chief of Police in Woodward has tendered his resignation.

 

WACKY CRIME

THE SPIDERS, MAN: A man at a McDonald’s in Tahlequah freaked out, claiming to see spiders, and was arrested for shooting up meth to the surprise of no one.

CLOWNS: A man dressed up as a clown in Wagoner was arrested on outstanding warrants. Pro tip: take care of your outstanding warrants prior to drawing attention to yourself.

THE WANDERER: A woman in Muskogee has been charged with “gross injury to morals” for wandering around town naked.

DISRUPTIVE CLIENT: Veteran defense counsel Royce Hobbs had to deal with a disruptive client in Stillwater.

CLEAN DOGS: A Comanche man was arrested for washing his Chihuahuas—with an industrial pressure washer.

(SIGH): An Oklahoma City man committed burglary of auto—while wearing an ankle monitor. The real story is that law enforcement officials appear to be incapable of catching him, even though there is video of him committing the crime and wearing the monitor.

HEALTHY EATING IN PRISON: A rapper has penned a book about how to eat healthy in prison. An excerpt from the article: The further you go into the book, the less healthy (and, in Prodigy’s estimation, more disgusting) recipes become. Near the end, there are recipes like “Prison Surprise:” a mixture of ramen noodles, Doritos, Jack Mack (canned mackerel) and hot sauce. Prodigy ends his cooking instructions for these dishes with “Good luck, yo.”

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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