OCDW 12.05.17

 

(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).

 

No. 23: ELLIS COUNTY: Ellis County is located in the western part of our state, and the county seat is Arnett. It is named for Albert H. Ellis, vice president of the 1906 Constitutional Convention. I do not recall ever having represented a client in Ellis County, which drops my county total to 14 out of 23.

 

 

NEW JUDGE: Gov. Fallin has appointed First Assistant District Attorney from Oklahoma County Scott Rowland as the newest Judge on the OCCA which, along with the recent appointment of Judge Dana Kuehn, brings the Court back to a full five members.

 

State v. George Wesley Gilchrist, Jr., 2017 OK CR 25 (November 9, 2017): State Appeals; Double Jeopardy: Gilchrist was charged with 13-counts of cruelty to animals in Grant County (mistreatment of dogs). The facts showed that the 13 dogs had been abandoned at the same time and at the same location. Judge Paul K. Woodward granted a motion to quash, agreeing with the accused that these facts supported one count (one act) of animal cruelty and not 13. The State appealed, and in this opinion the Court agreed with the State, concluding that statutory construction and legislative intent supported the separate counts.

Travis Dillion Barnes v. State, 2017 OK CR 26 (November 22, 2017): Prosecutorial Misconduct; Jury Instructions (Duress): Barnes was convicted by jury in Nowata County (the Hon. Curtis L. DeLapp, presiding) of First Degree Burglary and First Degree Rape. Barnes alleged prosecutorial misconduct in the form of improper comment on his right to trial, implying that he was a liar, personal opinion, appealing to sympathy and passion, and misstating the law. The Court affirmed for the most part, affirming the denial (on plain error review) on a jury instruction of duress, but found plain error requiring resentencing based upon the prosecutor’s comment on the right to trial. NOTE: This appears to be the first published opinion issued with new Judge Kuehn voting to concur.

State v. Daniel Lee Shade, Jr., No. 115,523 (Okla. Civ. Appl., Div. IV, November 16, 2017) (Released for Publication): Expungement: Shade was received a full pardon for the offenses of Embezzlement by Employee and Second Degree Burglary in Cleveland County, and Larceny of Motor Vehicle from Logan County, and sought expungement, which the district court in Cleveland County granted. The State appealed (at the behest of the OSBI) on the basis that Shade was not eligible under the statute, and the Court reversed and remanded for further findings. NOTE: I included this case because published opinions on expungement do not appear that often and this opinion contains a good discussion of how amendments to the expungement statute apply.

Marcus Stephon Miller v. State, No. F-2016-229 (Okl.Cr., November 16, 2017) (unpublished): After-Formers (Enhancement): Miller was charged in Tulsa County (the Hon. Sharon K. Holmes, presiding) with Murder in the First Degree (two counts) and Possession of a Firearm While under DOC Supervision, but the jury convicted him of the lesser offense of Murder in the Second Degree. The Court affirmed for the most part, but vacated the sentences on the Murder counts because the trial was not bifurcated (actually trifurcated in this case) and it thus heard evidence of Miller’s priors. NOTE: Sometimes the bifurcation/trifurcation process can be confusing and this opinions spells it out.

L.D.H. v. State, No. J-2017-729 (Okl.Cr., November 16, 2017) (unpublished): Juveniles & YO: LDH was charged as a Youthful Offender in Tulsa County with Lewd Molestation of a Victim Under 12, and also a separate case of First Degree Robbery, and sentenced to 25 years and 10 years as a YO and remanded to the custody of the OJA. The State filed a motion to bridge to DOC based upon a pattern of disruptive behavior. The Hon. Kelly Greenough granted the State’s motion. In this opinion, the Court affirmed, but I included it because it has a good discussion of the law regarding motions to “bridge” in YO cases.

Jarvis Jones v. State, No. F-2016-665 (Okl.Cr., November 16, 2017) (unpublished): Double Jeopardy: Jones was convicted by jury in Oklahoma County (the Hon. Timothy R. Henderson, presiding) of Felony Murder, Conspiracy, and Possession of Firearm After Juvenile Adjudication. The Court affirmed over several claims, one of which related to double punishment since the gun possessed was also used in the felony murder. This would seem to make sense under 21 O.S. 11, but the Court held otherwise.

 

 

United States v. Kenneth Hardin, No. 16-1229 (10^th Cir., October 25, 2017) (Published) (Lucero, McKay & Hartz): Bribery; Sufficiency: Evidence supporting conviction for federal bribery (“program bribery”) was sufficient.

United States v. Darnell Sharon O’Connor, No. 16-3300 (10^th Cir., October 30, 2017) (Published) (Briscoe, Ebel & Matheson): Federal Sentencing Guidelines (Crime of Violence): In this felon in possession case, enhancement under the Hobbs Act for robbery is not a “crime of violence” for enhancement purposes.

 

 

“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).

 

Scott Kernan, Secretary v. Michael Daniel Cuero, No. 16-1468 (U.S., November 6, 2017) (per curiam): Habeas Corpus (AEDPA); Plea Bargains: This case involved a state guilty plea where the State was allowed to amend the complaint which allowed a higher sentence, so Cuero was allowed to withdraw his plea, but eventually pled to the amended complaint. The lower court granted habeas relief on the basis that Cuero was entitled to the benefit of his initial plea agreement, but the Court reversed on the basis that no case from the Court holds that specific performance is the only option for such breaches.

Jefferson Dunn, Commissioner v. Vernon Madison, No. 17-193 (U.S., November 6, 2017) (per curiam): Insanity & Competency; Habeas Corpus (AEDPA): Madison was found guilty of capital murder 30 years ago, but has since had a stroke and does not recall the crime (shooting a policeman); however, he does appreciate the fact that the State is going to execute him for this crime that he does not remember committing. The Court found this acceptable under the AEDPA since no case from the Court has held that the prisoner must remember the crime in order to be competent.

 

 

D.A. Rex Duncan v. Associate District Judge Patrick Pickerill: Earlier this month, all charges were dismissed against Judge Pickerill in Pawnee County where D.A. Rex Duncan had sought to squelch the Drug Court, first by using the civil process, and then by using the grand jury process to indict Judge Pickerill and his bailiff. This clear abuse of the system resulted in Duncan being disqualified from prosecuting the case, and after independent review by the A.G., dismissal of the case in its entirety.

WILLIAM CAMPBELL, OKC, had a recent federal case involving an allegation of credit card skimmers placed on ATMs where his client, and others, were charged by criminal complaint. A preliminary hearing was held, at which time Bill noted that there was not any actual evidence that the client had committed a crime. The Government agreed, and declined to present to the grand jury (although other co-defendants were indicted). All defendants were foreign nationals and the case against Bill’s client was dismissed. Nice work, Bill!

JOAN LOPEZ, OKC, secured a hung jury for her client who was charged in Logan County with Murder in the First Degree. Any result that allows the accused to walk out of the courtroom is not bad. Good job, Joan!

 

 

FAST CHASE: A police officer in George chased a suspected drunk driver who was driving a 2017 McLaren 720S in a pursuit that reached speeds of 155 mph.

MANSON HOSPITALIZED: Notorious inmate Charles Manson, 82, has been hospitalized in California.

HUGE BUST: The Coast Guard mad a huge drug seizure of 10 tons of cocaine and 50 pounds of heroin, with a street value of $300 million.

DEPUTY ARRESTED: A Sheriff’s Deputy in Canadian County was arrested, and fired, for DUI; meanwhile, an investigator in the Sheriff’s Office in Canadian County was fired for “public corruption” by having financial dealings with a subject under investigation.

NEW DJ: Gov. Fallin has appointed Michael Tupper as a new District Judge in Cleveland County.

HANNON EXECUTED: The State of Florida executed death row inmate Patrick Hannon earlier this month.

 

WACKY CRIME

 

C’MON, MAN!: Man in court in Colorado on a drug charge accidentally drops…cocaine during a court hearing.

NOT LIKE THE MOVIES: A robber was foiled trying to rob a liquor store in Purcell when a clerk hit him over the head with a bottle of Bailey’s Pumpkin Spice which, unlike in the movies, did not shatter, but instead left a nasty cut on the robber’s head.

IT’S LIKE ARMOR: An Ada man went into “survival mode” and challenged his neighbor to a knife fight, taping adult magazines to his body for protection.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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