OCDW 02.13.17

 

(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).

 

 

In Re Adoption of the 2017 Revisions to the Oklahoma Uniform Jury Instructions—Criminal, 2017 OK CR 1 (February 9, 2017): Jury Instructions: The Court approved new jury instructions dealing with self-representation, forcible sodomy, rape and other sex crimes, possession of firearm by child, use of communication facilities, defense of another, stand your ground law, victim impact evidence, and return of verdict.

Deandre Lashawn Henderson v. State, No. C-2016-40 (Okl.Cr., February 9, 2017) (unpublished): Double Jeopardy; Guilty Pleas; IAC: Henderson entered an Alford plea in Seminole County before the Hon. Gayla Arnold, Special Judge, to four counts of A&B w/Dangerous Weapon (AFCF) and a count of Possession of Firearm by Felon. The Court denied the motion to withdraw the plea on some counts, but found IAC error based upon a double jeopardy claim in the multiple counts of A&B, which involved multiple gunshots at a single victim in a continuous, rapid-fire incident. Thus, counts 2-4 were reversed with instructions to dismiss. NOTE: Henderson did not sign the plea form, nor did he answer some of the questions; however, the Court found that substantial compliance with King was present in the record.

Alex E. Brown v. The Hon. Cindy H. Truong, No. MA-2016-1103 (Okl.Cr., February 9, 2017) (unpublished): Bail: This is a mandamus order out of Oklahoma County where Judge Truong denied bail. Under Brill, the district court must prepare a written order, outlining the facts and the statement of reasons for the detention without bail. At the hearing, Judge Truong ruled from the bench, but failed to issue a written order. This order directs Judge Truong to prepare a proper order for review by the appellate court.

 

 

United States v. Tremale Odale Henry, No. 15-6181 (10^th Cir., February 3, 2017) (Published) (Gorsuch, Baldock & Phillips) (W.D. Okla., Hon. Stephen Friot): Supervised Release: Revocation of supervised release is remanded because the district court relief upon hearsay statements.

United States v. Phillip David Hernandez, No. 15-1116 (10^th Cir., February 9, 2017) (Published) (Briscoe, Seymour & Lucero): Search and Seizure (Pat Down); Waiver (Appellate Issues): Hernandez was walking down the street in Denver and eventually questioned by police, who found that he had a gun. It was also discovered that Hernandez had an outstanding warrant for a parole violation. The district court held that the search and seizure was unlawful, and the panel majority affirmed. NOTE: The outstanding warrant would prove to be a problem for Hernandez in light of Utah v. Strieff, 136 S.Ct. 2056 (2016), but the panel held that the Government’s argument of attenuation had been waived because the Government failed to argue it below. Also, Judge Briscoe dissented.

In re: Julius Darius Jones, No. 17-6008 (10^th Cir., February 10, 2017) (Published) (Tymkovich, C.J., Kelly) (per curiam): Habeas Corpus (Second or Successive): Authorization to file a second habeas petition is denied to Oklahoma death row inmate Julius Jones, who sought authorization based upon the Supreme Court’s decision in Hurst v. Florida, 136 S.Ct. 616 (2016).

United States v. Donald Bowers, No. 16-4008 (10^th Cir., February 10, 2017) (Briscoe, Matheson & Phillips): Contempt; Supervised Release; Discovery: Bowers violated a permanent injunction in a civil case, which subsequently gave rise to a criminal case of contempt. In this opinion, the Court affirmed over his claims relating to: 1) imposition of special condition of supervised release requiring him to pay monthly payments on an outstanding civil judgment; 2) denial of his motion for disclosure of the criminal referral; and 3) his term of imprisonment that exceeded six months.

 

 

“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.

 

 

United States v. Marcelo Monsivais, No. 15-10356 (5^th Cir., February 2, 2017): Search and Seizure (Pat Down): Police saw Monsivais walking along the highway, away from an apparently disabled truck, and they made contact with him for a “welfare check” which resulted in a pat down, finding a handgun and meth. The district court denied a motion to suppress, but the panel reversed, holding that the officers lacked a basis to reasonably suspect Monsivais of a criminal act before seizing him. NOTE: This panel split 2-1 on this issue, with Judge Jones dissenting.

United States v. Christopher R. Gates, No. 16-2193 (7^th Cir., January 4, 2017): Federal Sentencing Guidelines (Firearm Enhancement): Enhancement for possessing a firearm in connection with two drug offenses is reversed when the first transaction involved a person short of cash pawned the Glock to the accused pending payment for marijuana; and the second transaction was sale of the Glock (to a CI) to settle the drug debt. Thus, the enhancement did not apply because the Glock was merely used as collateral.

United States v. Maximo Mateo-Medina, No. 15-2862 (3^rd Cir., January 9, 2017): Federal Sentencing Guidelines (PSR): Sentence for Illegal Re-entry is vacated because the district court relief upon the PSR that disclosed prior arrests (which did not lead to convictions) but did not contain any of the underlying conduct.

 

 

THE UNKNOWN LAWYER: A man in Washington County has been found not guilty last week of charges of exploitation and financial neglect of a vulnerable person. The press reported the result, but neither the story nor OSCN gives a clue as to the lawyer. Congratulations, to somebody!

PERRY HUDSON, OKC, and JOSH KIDD, defended the accused who was charged in Osage County with child sexual abuse. These are tough cases, especially with a 9-year-old complaining witness who displayed no personality or behavioral problems one might expect from an abused child. Perry reported that ADA Kyle Alderson prosecuted the case professionally and ethically, and that Perry and Josh were otherwise treated well in Osage County. Nice work, Perry and Josh!

JACK GORDON, Claremore, has enough victories in the legal area to fill several victory pages, but I wanted to include a story from the Claremore paper about how Jack continued his 40-year tradition, started by his father, of delivering Christmas ornaments to women in town to simply spread good cheer and good will in the community. That is how real lawyers do it. Keep up the good work, Jack!

 

 

INMATE DIES: An inmate at the Oklahoma County Jail has died in custody; also, a new study indicates that Oklahoma ranks sixth in the nation in having a high mortality rate among its prison population.

I.C.V.: The Stephens County Sheriff’s Office has an “Incident Command Vehicle” up and running. For what reason, no one knows.

DRUG COURT: The passage of State Question 780 has left the future of Drug Court in Cleveland County uncertain.

DISPATCHER SHORTAGE: OHP is in need of dispatchers.

NEW CHIEF: David Boes has been named the new Chief of Police in the town of Dickson.

PHONE SMUGGLING: Two men have been accused of attempting to transport cell phones to a prisoner at Great Plains Correctional Institution in Hinton at $5,000.00 for a smart phone and $1,000.00 for a flip phone. This story details the scope of the problem, as well as some of the ways that cell phones are smuggled into prisons.

NEW JUSTICE: Gov. Fallin has selected Patrick R. Wyrick as the newest Justice on the state Supreme Court. Justice Wyrick has served as Solicitor General under Attorney General Scott Pruitt.

NEW D.A.: Gov. Fallin has appointed Paul Smith as the District Attorney for Seminole, Hughes and Pontotoc Counties. He replaces Chris Ross, who retired on January 1.

NEW PROGRAM: A new program in Muskogee is designed to help felons manage their lives.

NGRI: A man in Sequoya County was found not guilty by reason of insanity in the death of his mother.

BIG BUST: A Kansas couple were stopped near El Reno recently and arrested after police found 30 pounds of meth.

NEW UNDERSHERIFF: James Harryman has been selected as the Undersheriff in McClain County.

NEW MARSHAL IN TOWN: The city of Enid has resurrected the position of City Marshal for the first time in about 100 years.

NEW TRAINING CENTER: DOC has opened a new training center at the town of Wilson.

 

WACKY CRIME

NOT WORTH IT: An armed robber in Tulsa pointed a gun at a car full of people to rob, but when the occupants could produce only three dollars, he threw the money back as “not worth it.”

ODD KIDNAPPER: A man in Stephens County was arrested for kidnapping…his own grandmother.

DOUGHNUT ARREST: An officer in Orlando, with 10-years of experience, has resigned after the kerfuffle that ensued when she arrested a man for possession of meth—which turned out to be doughnut glaze (she even “tested” it).

SELF-ARREST: A burglar in Oklahoma City broke into a truck, but found himself trapped inside. The truck had a malfunction which disabled the doors from opening unless the truck was running with the key in the ignition. The hapless burglar cussed and kicked until police showed up to let him out…and arrest him.

FAIR TRADE: An Ardmore man was arrested for trying to barter with some Girl Scouts by asking for some cookies in exchange for…vodka.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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