OCDW 02.23.15

 

(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).

 

 

State ex rel. Oklahoma Bar Association v. Wintory, 2015 OK 25 (April 28, 2015): Prosecutorial Misconduct: Former Assistant District Attorney (Oklahoma County) Richard Wintory was disciplined by the state of Arizona and suspended for 90 days. However, in this opinion, the Oklahoma Supreme Court issued an order suspending him from practicing in Oklahoma for two years and one day.

State v. Brandon Lee Zungali and Daisha Tyshell Harris, 2015 OK CR 8 (May 1, 2015): Search and Seizure (Traffic Stops); Standard of Review: Suppression order is reversed and traffic stop upheld based upon the use by an OBNDD agent of a “three second rule” to time vehicles following too closely, when the statute simply states that the distance must be reasonable and prudent. The Court followed a similar case from the Tenth Circuit. NOTE: The Court stated that the standard of review of a ruling on a motion to suppress is a mixed question of law and fact (evidence in light most favorable to the district court’s ruling, and the ultimate determination of reasonableness is de novo). The Court’s cases on the standard of review of these issues is haphazard; sometimes de novo, sometimes mixed, and sometimes it is even an abuse of discretion, and there appears to be no rhyme or reason as to which one it will choose in a given case.

Phillip Antonio Davis v. State, No. F-2014-25 (Okl.Cr., April 29, 2015) (unpublished): Confrontation and Cross-Examination; Trial Procedure: Davis was convicted by jury in Oklahoma County (the Hon. Cindy Truong, presiding) of Murder in the First Degree and Possession of Firearm AFCF. The Court affirmed the convictions, but noted that the trial court erred in not allowing the defense to question a witness regarding the possibility that she might be charged in the death of the decedent (but the error was harmless). NOTE: This is a good opinion in a long line of opinions holding that the bias of a witness is always a proper inquiry on cross-examination. NOTE: The trial court also refused a request to split the closing argument between two defense attorneys. The Court held that this was not an abuse of discretion.

Reuben Julius Ingram, III, v. State, No. F-2014-256 (Okl.Cr., April 30, 2015) (unpublished): Search and Seizure (Jail Calls): Ingram was convicted by jury in Oklahoma County (the Hon. Glenn M. Jones, presiding) of Trafficking (AFCF) and was sentenced to 30 years. The main contention on appeal was the admissibility of the jail calls that Ingram made which proved his knowledge of, and dominion and control over, the drugs. I cannot imagine how any inmate would still do that, but Ingram did. The Court affirmed, but I include the opinion because it outlines the legal basis for admitting jail calls (the inmates are given notice, and there is no reasonable expectation of privacy; also, the Court discusses the Security of Communications Act in this regard).

Arthell Vernon Tiger v. State, No. M-2013-806 (Okl.Cr., April 30, 2015) (unpublished): Experts (Handwriting): This is an appeal from a misdemeanor conviction for violation of a protective order out of Tulsa County (the Hon. William Hiddle, Special Judge, presiding). The Court affirmed over Tiger’s claim that the trial court erred in allowing the State’s handwriting expert to testify that some letters were written by Tiger. I included the case because of the instruction discussion about handwriting experts and how far their testimony can go.

 

 

United States v. Simona Gallegos, No. 13-6236 (10^th Cir., April 30, 2015) (Published) (Briscoe, C.J., Tymkovich & Moritz) (W.D. Okla., Hon. David L. Russell): Conspiracy; Variance: Drug conspiracy conviction is affirmed over claims relating to: 1) admission of hearsay statement of co-defendant; 2) sufficiency; 3) variance; 4) admission of post-arrest statement for attorney by co-defendant; and 5) cumulative error.

United States v. Roger Keith Howard, No. 14-1075 (10^th Cir., April 28, 2015) (Published) (Kelly, Lucero & Hartz): Restitution: In this mortgage fraud case, a restitution award is reversed because of a lack of evidence presented establishing loss by the victims.

 

 

“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).

 

 

 

United States v. Carlos Manuel Del Valle-Cruz, No. 13-1050 (1^st Cir., April 6, 2015): Supervised Release; Waiver (Appeals Waivers): In this case, the defendant pled guilty to one count of failing to register, and waived his appellate rights; however, the court granted relief on plain error concerning one of the conditions of supervised release that interfered with his right to see his son.

United States v. Marco Antonio Alvarado-Zarza, No. 13-50745 (5^th Cir., April 6, 2015): Search and Seizure (Traffic Stops): Denial of a motion to suppress is reversed because a Texas statute requires a car to signal 100 feet before a turn, and here it was clear that the motorist did so.

People v. Lee Carr, No. 26 (N.Y.Ct. App., April 2, 2015): Right to Counsel; Trial Procedure: The trial court violated the right of the accused to counsel by holding an in camera proceeding without counsel present to discuss with the People’s main witness the mental and physical ability of the witness to testify (whether his migraine headaches would interfere with his focus).

 

 

None reported.

 

 

GRANDMOTHER AWAITING EXECUTION: A 58-year-old grandmother from Britain is on death row in Indonesia for drug trafficking, and she expects to be executed as were seven others last week. They do not play around in Indonesia.

BAD STOP?: An OHP Trooper in Sequoyah County stopped a Virginia man last week and, after the man refused to consent to the search, the Trooper ran Bullet the drug dog around the car until it alerted. Sounds like exactly what happened in the Rodriguez case from SCOTUS last week, which was a winner.

BATES FALLOUT: Tulsa County Undersheriff Tim Albin has resigned amidst the investigation into the shooting by Reserve Deputy Robert Bates, and he was replaced by Chief Deputy Rick Weigel; also, a secret recording has emerged in which Bates bragged about his influence with the Sheriff’s Office.

SHERIFF RETIRES: Sheriff James Hallett, Nowata County, has announced his retirement effective May 31, 2015.

SHERIFF’S MONEY WOES: Things are so bad in Pushmataha County that the Sheriff is apparently donating some of his own money to keep the office afloat; also feeling the pinch are Court Clerks, whose budgets cuts are going to be severe.

COURTHOUSE SECURITY: Pontotoc County has finally implemented courthouse security measures, including metal detectors and bag searches.

DEPUTY DIES: Delaware County Sgt. Mike Halter passed away last week from an apparent heart attack; also, Garfield County Senior Deputy Mike Weber also passed away last week.

TEXAS PREPARES: In what looks like a satirical article from the Onion, Texas Governor Greg Abbott ordered Texas State Guard troops to monitor a joint Navy SEAL/Green Berets training exercise, just in case the feds decide to take over Texas and declare martial law. This appears to be a real article.

FUND SET UP: A fund set up at Gofundme will assist a police officer from Hugo wounded in a shootout last week.

COURTHOUSE FLOODED: The Pittsburg County Courthouse sustained water damage from flooding last Monday.

PROSECUTOR EXPLAINS: A prosecutor in Texas explained his decision to not seek the death penalty for the person who murdered American Sniper Chris Kyle.

OFFICER ARRESTED: A police officer in Hartshorne was arrested last week on allegations of sexual misconduct and accepting a bribe; also, an officer in Oklahoma City was arrested for domestic abuse.

CAN YOU RUN?: This AP article dissects when it is lawful to run from or ignore the cops.

BODYCAMS: The Clinton P.D. will require all patrol officers to wear body cams.

NO RETURNS?: A drug manufacturer has requested that the state of Oklahoma return its supply of an execution drug.

JONES TO JUVY: Former DOC Director Justin Jones will take over as the director of the Tulsa County Juvenile Bureau.

 

WACKING CRIME

A Tulsa man was arrested for taking a nice, relaxing Sunday stroll down L.L. Tisdale Parkway—completely naked; a Chickasha citizen assisted local police in catching a speeding motorcyclist by standing in the middle of the road and playing “chicken” with the cycle—the man won!; a man out to buy some grass paid for $170.00—for actual grass; Gov. Fallin tackled the tough issues last week, signing a bill into law that makes it legal to carry switchblades here in Oklahoma.

 

 

THURSDAY, JUNE 25 & FRIDAY, JUNE 26, 2015: The 2015 Patrick A. Williams Criminal Defense Institute & Annual Meeting (including annual awards) will be held at the Renaissance Hotel and Cox Convention Center in Oklahoma City. This program is always top-notch, and this year I am presenting on a case-law update during the Friday session. Hope to see you there!

 

SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164^th St., Edmond, OK 73013.

OKLAHOMA CRIMINAL DEFENSE WEEKLY

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