OCDW 12.11.17

 

(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. 24: GARFIELD COUNTY: Garfield County, located in north-central Oklahoma, was named after President James A. Garfield and the county seat is Enid. I started my law career there and have appeared at the courthouse there many times, which brings my total to 15 out of 24 counties where I have appeared on behalf of a client.

 

 

Isaiah Jamil Walker v. State, No. F-2015-937 (Okl.Cr., December 7, 2017) (unpublished): Double Jeopardy; Jury Instructions (Lesser Included): Walker was convicted by jury in Cleveland County (The Hon. Lori Walkley, presiding) of First Degree Felony Murder, Robbery AFCF, Burglary in the First Degree AFCF, and Possession of Firearm AFCF. In this opinion, the Court basically affirmed everything, except the error conceded by the State that convictions for First Degree Felony Murder and First Degree Burglary violate double jeopardy because the underlying felony was the burglary (thus, the burglary count is dismissed). NOTE: The trial court proposed lesser offense instructions, but the accused rejected them, choosing to proceed on an “all-or-nothing” basis. The Court found that the accused had this right and that there was no error.

Jonathan Ray Thomas v. State, No. F-2016-132 (Okl.Cr., December 7, 2017) (unpublished): Interrogations (Fifth Amendment): Thomas was convicted by jury in Tulsa County (the Hon. William Musseman, presiding) of Assault and Battery w/Deadly Weapon and Possession of Firearm AFCF. The Court affirmed, but I included this opinion because of the opinion of Judge Lumpkin, concurring in part and dissenting in part, on the issue of the State’s use of statements of the accused that were obtained in violation of Miranda as substantive evidence of guilt (rather than for impeachment). The State conceded an error here when the trial court, after having found a Miranda violation, allowed the State to impeach but instructed the jury that the statements could be used as substantive evidence of guilt rather than impeachment. In addition, Judge Kuehn concurred in the result, disagreeing with the majority’s analysis of this issue, but concluding that there was no plain error and the error was otherwise harmless.

Charles David Miller v. State, No. C-2016-877 (Okl.Cr., December 7, 2017) (unpublished): Guilty Pleas; Double Jeopardy: Miller entered a negotiated plea in Muskogee County (the Hon. Norman Thygesen, presiding) to Stalking, Possession of a Firearm During Commission of a Felony, Violation of a Protective Order, and Reckless Conduct with a Firearm. In this appeal, the Court held that Miller must be resentenced on the Stalking charge because 10 years exceeds the statutory maximum of 5 years; and also that the count of Reckless Conduct with a Firearm must be reversed and remanded with instructions to dismiss because it violated double punishment under 21 O.S. 11 and had counsel raised this claim it would have prevailed.

 

 

United States v. Tito Ontiveros, No. 16-1362 (10^th Cir., November 7, 2017) (Published) (Kelly, Holmes & Bacharach): Federal Sentencing Guidelines (Crime of Violence): Colorado statute governing second-degree assault qualifies as a crime of violence.

Emmanuel Littlejohn v. Terry Royal, Warden, No. 14-6177 (10^th Cir., November 7, 2017) (Published) (Tymkovich, C.J., Lucero & Holmes): Habeas Corpus (Capital Habeas Cases); IAC; Cumulative Error: Oklahoma capital habeas appeal is affirmed over claims relating to: 1) ineffective assistance of counsel for failing to investigate and present mitigating evidence; and 2) cumulative error. NOTE: Judge Tymkovich, C.J., concurred, emphasizing his view that scientific testimony about organic brain damage is not categorically more powerful than other types of mental-health evidence.

United States v. Lindsey Kent Springer, No. 15-5109 (10^th Cir., November 13, 2017) (Published) (Phillips, McHugh & Moritz): Habeas Corpus (COA): The Court denied a certificate of appealability in this complicated appeal brought by a pro se federal prisoner alleging fraud on the trial court in collateral proceedings, and also that SCOTUS authority had undermined Tenth Circuit precedent on whether a COA was required. The panel held that it was.

Delano Marco Medina v. Johnny Choate, No. 17-1159 (10^th Cir., November 14, 2017) (Published) (Hartz, Holmes & Bacharach): Habeas Corpus; Speedy Trial: Medina, while awaiting trial, filed an application for habeas relief under 2241 seeking dismissal on speedy trial grounds. The Court affirmed the denial, noting that although exceptional circumstances might be present in a case where 2241 is proper, such circumstances do not exist in this case because he has remedies in the district court and also on direct appeal.

United States v. Steven J. Meisel, No. 15-3182 (10^th Cir., November 14, 2017) (Published) (Tymkovich, C.J., Briscoe & Murphy): Right to Present a Defense; Jury Instructions (Defense Theory of the Case): Conviction for distribution and possession of child porn is affirmed over claims relating to denial of right to present evidence of other perpetrators and denial of a jury instruction on his theory of the case that someone else placed the images on his computer.

United States v. Kenroy Lloyd Benford, No. 15-6163 (10^th Cir., November 14, 2017) (Published) (Phillips, Baldock & McHugh): Possession of Firearm by Felon: Felon in possession conviction is reversed because of erroneous jury instruction that omitted element of intent to exercise dominion and control (on plain error review, no less). NOTE: This was a split decision, with Judge Phillips dissenting on the basis that there was no reasonable possibility of acquittal absent the error.

 

 

“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.

 

 

KEVIN ADAMS, Tulsa, and a prior winner of the Clarence Darrow Award, continued his winning ways last week, securing an acquittal for a client, a West Point cadet, accused of rape in Tulsa. Nice work, Kevin!

JOHN MARTINO, OKC, traveled to Noble County to represent a client who was charged with Receiving/Possessing a Stolen Vehicle. The client’s version of the events won the day, and John reports that Judge Ross was a very fair jurist in the case, as was the prosecutor, Tom Lane. Good job, John!

BRECKEN WAGNER, McAlester, suited up for a misdemeanor jury trial where his client was accused of threatening to perform an act of violence…not guilty! Nice work, Brecken!

 

 

FEMINIZATION OF GAMBLING: Interesting article about women and slot machines.

NEW ADAs: District Attorney Laura Thomas (Logan and Payne Counties) has hired two new assistants.

NEW COMMISH: Gov. Fallin has appointed OHP Major Billy D. “Rusty” Rhoades, III, to serve as the new Commissioner of Public Safety.

NEW JUDGE: Gov. Fallin has appointed Laura Corbin as the new Associate District Judge in Johnston County. She is one of the few recent appointees not selected straight from the district attorney’s office.

NEW JUDGE II: Michael Tupper was appointed as District Judge in Cleveland County.

FEMALE INCARCERATION: Interesting Tulsa World story about Oklahoma’s continued lead in the country for locking up women; and the general incarceration rate in our state continues to rise. For example, in Carter County, District Attorney Craig Ladd is actively targeting pregnant women who use drugs. Plus, things are not any better at the county jails, where for example the Logan County Jail is full, as is the Rogers County Jail. This ARTICLE calls upon lawmakers to re-think life and other long sentences. DOC also canceled a contract with a halfway house as the result of a death.

RIP JUDGE GOODWIN: Judge Charles L. “Buzz” Goodwin passed away last month.

HALL OF FAME: Former OSBI investigator inducted into the Oklahoma Law Enforcement Hall of Fame.

DOC FUNDING: The woeful state of funding for DOC has the specter of a takeover by the feds, and DOD Director Joe Allbaugh says his request for a billion dollars from the Legislature is not a joke.

OFFICER CLEARED: District Attorney David Prater has cleared a police officer in the shooting of a deaf man on September 19.

OFFICER CHARGED: District Attorney David Prater has charged a police officer with Murder in the Second Degree in the shooting of a suicidal man last month.

OFFICER CHARGED II: Prosecutors in McClain County have charged a Purcell Police Officers with a felony count of child abuse.

JAILER CHARGED: A jailer in Pushmataha County has been fired and charged with sexual assault for performing a sex act with a female inmate. This type of thing seems to happen a lot in our county jails.

OSBI HIRING: We have no money for prisons but the OSBI is hiring.

SHAKEN BABY: Interesting article on Shaken Baby Syndrome and how the science behind this diagnosis is crumbling.

CHURCH SECURITY: Oklahoma law enforcement officers recently attended a seminar on “church security.”

CONTRACT FIGHTING CRIME: A local motel owner in Tulsa has included an addendum in the agreement that any illegal activity in the room will subject the tenant to removal, which has helped reduce crime.

INVESTIGATION: A drug program pioneered by retired district Judge Tom Landrith (Pontotoc County) has come under investigation for fraud.

RETIRING: The Nowata County Sheriff, Sandy Hadley, has announced her retirement.

“JUGGING”: Police are alert for thieves who are “jugging” which is when they surveil people getting cash from ATMs and then follow them to rob them later.

TIPS: Here are some tips for avoiding parking tickets in OKC.

WACKY CRIME

 

QUESTIONABLE TACTIC: A man in Miami has asserted self-defense under the “Stand Your Ground” law…after he was “attacked” by a five-year-old.

STRAY BULLETS: Are apparently a problem in Rogers County.

JACKER JACKED: A car-jacker is behind bars, bloody and beaten up by the people whom he tried to rob.

THE WEEDS: The Weed family, infamous for allegedly trafficking in weed, continues to make headlines, this time when the matriarch, Margery Weed, allegedly threated to kill her son’s arresting officer during a recorded jailhouse phone call.

LAWTON: More weirdness from Lawton, including a case of “assault with a dangerous sock.”

BANDIT: Police are looking for the “Beef Jerky Bandit.” This man must be stopped.

HUBRIS: A man has been accused of sexting with a minor…from his prison cell at Jess Dunn Correctional Center.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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