OCDW 05.26.15

 

(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).

 

 

Deborah Ann Leftwich v. State, 2015 OK CR 5 (May 22, 2015): Statutory Construction: This case involves former state senator Leftwich and her conviction at a bench trial in Oklahoma County (the Hon. Cindy H. Truong, presiding) of one count of soliciting/accepting a bribe to withdraw from candidacy in violation of 26 O.S. § 16-108. Judge Truong sentenced Leftwich to one year suspended. In this appeal, the Court affirmed the conviction, construing the legal terms “candidate” and “withdraw” to cover the acts by Leftwich. NOTE: In a companion case, issued as an unpublished opinion on the same day, the Court affirmed the conviction by jury of co-defendant Randall Terrill in Randall Terrill v. State, No. F-2013-1169 (Okl.Cr., May 22, 2015) (unpublished). It appears that Terrill was convicted first, which appears to have prompted Leftwich to take her chances with a bench trial.

Jorge Alberto Guevara v. State, No. F-2014-279 (Okl.Cr., May 19, 2015) (unpublished): IAC (Conflicts): In this drug trafficking case out of Oklahoma County (the Hon. Kenneth Watson, presiding), trial counsel represented at trial both the driver and passenger of a semi which was stopped along the interstate and in which drugs were found. In this opinion, the Court reversed and remanded for a new trial on the basis of IAC where trial counsel had an actual conflict representing both defendants (with no waiver of conflict). NOTE: This was a good win, but by a narrow 3-2 margin, with Judges Lumpkin and Lewis dissenting. Newly appointed Judge Hudson concurred, and was actually the swing vote in favor of reversal.

Edward Thomas Brown v. State, No. F-2014-334 (Okl.Cr., May 20, 2015) (unpublished): Jury Instructions (Accomplice Testimony): Brown was convicted by jury in Oklahoma County (the Hon. Jerry D. Bass, presiding) of A&B w/Deadly, Conspiracy to Commit Larceny of MV, and Attempted Larceny of a MV, and sentenced to 26 years. The Court found error in the failure of the trial court to instruct on the use of accomplice testimony and the need for corroboration, but since there was no objection or proffered instructions, the Court found no plain error.

 

 

United States v. Clay O’Brien Mann, No. 13-2214 (10^th Cir., May 18, 2015) (Published) (Kelly, Bacharach & Phillips): Constructive Amendment: In this complicated case, the panel rejects Mann’s claim of constructive amendment when the Government alleged that Mann knowingly discharged a firearm in relation to an assault on a person. The crux of the argument seems to be that these elements are not required under the statute, but the Government alleged them anyway.

United States v. Dejuan Leshae Hill, No. 13-5074 (10^th Cir., May 22, 2015) (Published) (Hartz, Phillips & McHugh) (N.D. Okla., Hon. James H. Payne): Variance: Hill and other gang members were convicted of several robberies in Tulsa, as well as conspiracy. In this opinion, the panel found that a variance existed (that is, the evidence did not show one large conspiracy as alleged by the Government, but rather several smaller conspiracies), but that it was insufficiently prejudicial to reverse. NOTE: This case was a 2-1 split, with Judge McHugh dissenting on the issue of whether the variance was reversible. Also, the panel denied relief on similar grounds to co-defendants in unpublished opinions in United States v. Deandre Antonio Hopkins, No. 13-5072 (10^th Cir., May 22, 2015) (unpublished), and United States v. Vernon James Hill, No. 13-5084 (10^th Cir., May 22, 2015) (unpublished).

 

 

“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).

 

Henderson v. United States, No. 13-1487 (U.S., May 18, 2015): Bail; Possession (Firearm by Felon): Henderson was charged in federal court with a drug offense, and ordered to turn over his firearms to the FBI as a condition of bail (which he did). Upon his conviction, he could no longer possess them, but asked the court to order the FBI to turn them over to a third party. Both lower courts refused to order this, but in this unanimous opinion, the Court reversed, holding that a district court does have authority to order the guns transferred to a third party, provided that the court is convinced that the third party will not give them back to the felon. NOTE: This is a good opinion from the Court, and unanimous to boot, in stopping what appears to be a simple scam by the FBI and the lower federal courts to simply confiscate property from a defendant to which the government is not entitled.

 

 

United States v. Nickdaniel DeWayne Clay, No. 14-60283 (5^th Cir., May 22, 2015): Federal Sentencing Guidelines (Reasonableness): Interesting opinion where the panel vacated a within-the-Guidelines sentence because the district court “failed to appreciate” its discretion to vary from the advisory Guidelines.

Timothy W. Austin v. Andrew Pazera, No. 14-2574 (7^th Cir., February 19, 2015): Prison Discipline: Instructive case where Austin was working in an area accessed by four others, and a guard found tobacco. Austin was found guilty of possession of tobacco and disciplined, but in this opinion the panel found the evidence too scant to uphold the imposition of discipline even under the lax standard that governs such hearings.

Junior Blackston v. Lloyd Rapelje, No. 12-2668 (6^th Cir., February 17, 2015): Confrontation and Cross-Examination: Blackston was convicted of murder at a retrial in state court, but before this second trial was held, two of the State’s key witnesses recanted their testimony. They were determined to be unavailable at the second trial and the trial court ordered their earlier testimony read to the jury but refused to allow Blackston to impeach their testimony with evidence of their recantations. One would think this a simple matter of black-letter fundamental fairness, but the panel split 2-1 to grant habeas relief. Judge Kethledge dissented on the basis that no Supreme Court case holds that an accused has a right to admit evidence as part of Confrontation.

Teshome Campbell v. Dan Reardon, Warden, No. 13-2634 (7^th Cir., March 10, 2015): IAC: Habeas relief is granted on an IAC claim in this murder case where defense counsel failed to investigate and present testimony from three witnesses who would have contradicted the State’s evidence.

Branden Clark v. Leann K. Bertsch, No. 13-3379 (8^th Cir., March 13, 2015): Habeas Corpus (Procedural Default): This opinion addresses an intra-circuit split on whether review by a state court for plain error on an otherwise defaulted claim preserves it for federal habeas. Following the earliest case, the panel held that it does not.

Lawrence Owens v. Stephen Duncan, Warden, No. 14-1419 (7^th Cir., March 23, 2015): Sufficiency: Habeas relief is granted in this state court bench trial murder case where the judge relied upon facts that he just “made up” (that Owens knew the decedent, and that the decedent was a drug dealer) instead of those contained in the record. NOTE: The panel was exceedingly harsh in its critique of the findings by the state trial judge.

 

 

KEN GALLON, Miami, won a lewd molestation jury trial last Tuesday in Ottawa County. Great job, Ken!

JAMES L. HANKINS, OKC, and LAURA DESKIN, Norman, scored a nice appellate win in the Guevara case cited above, securing new trials for co-defendants who were tried in the same case and represented by the same counsel. It is always tough to win the OCCA!

MARK HENRICKSEN, OKC, won a suppression issue recently in Custer County in this opinion by the Hon. Jill Weedon, who found fault in the traffic stop and subsequent search, particularly the admission by the officer that the refusal of the motorist to consent was a factor for reasonable suspicion. Nice win, Mark!

SONJA R. PORTER, OKC, tried a felony DUI case last week before a jury and the Hon. Glenn Jones (Oklahoma County). The jury found her client not guilty of the felony, but guilty of misdemeanor hit and run and imposed a sentence of…$50.00! That is definitely a win!

 

 

IRISH VOTE: In an historic vote last week, Ireland became the first country to approve same-sex marriage by popular vote.

JOHN NASH KILLED: Nobel Prize winner John Nash, the mathematician who was the subject of the movie “A Beautiful Mind”, was killed, along with his wife, last week in a car accident in New Jersey.

FREED MAN SUES: A man who was imprisoned wrongly in Ohio and spent nearly 40 years in prison has sued the detectives who put him there.

DEATH ROW INMATE DIES: An inmate on death row in Nebraska since 1985—30 years—has died of an apparent brain tumor.

OCCA DATABASE: Appellate guru extraordinaire, Bryan Dupler, has created a database of all of the OCCA published opinions by year.

 

 

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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