OCDW 07.13.15

 

(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State v. Thomas Anthony Cooper, No. S-2014-961 (Okl.Cr., July 7, 2015) (unpublished): State Appeals; Self Defense: Cooper was charged in Tulsa County with Shooting w/Intent to Kill. The Hon. Mark Barcus granted Cooper’s motion to quash, apparently on the basis that the State had not overcome the presumption found in the Stand Your Ground law that the shooting here was justified. The State appealed. The Court reversed, holding that Cooper asserted a motion to quash based upon insufficient evidence, not an assertion of immunity from prosecution under the Stand Your Ground law; and based upon the facts of the case at preliminary hearing, the motion should not have been granted. NOTE: This opinion by Judge Lumpkin is troubling on a couple of fronts, and in my opinion highlights one of the fundamental flaws in the way this Court resolves cases. First, Cooper asserted both a motion to quash, and immunity from prosecution in the same motion. Now granted, these two things are very different, and the order by Judge Barcus could have been construed as granting either one. In other words, there was ambiguity concerning what legal claims were asserted by Cooper, and what legal issues were resolved by Judge Barcus. The legal issues surrounding the ambiguity were essentially resolved, in an unpublished opinion, issued by the Court on June 9, 2015, State v. Ramos, which outlines the procedure for how claims of immunity under the Stand Your Ground law must be litigated, a fact noticed by Judge Lewis, joined by Judge Johnson. Why then, does Cooper not get the benefit of the doubt here? Why is Ramos, which resolved an important legal question, unpublished? This Court seems to do things in the dark and then punish litigants when there is the slightest uncertainty. The proper remedy in this case would have been to remand the case to Judge Barcus for clarification of his order (did he mean to quash the Information for insufficient evidence, or to order immunity from prosecution under the Stand Your Ground law? The distinction is important because the State can appeal the former, but not the latter which acts as an acquittal for all intents and purposes), and then an opportunity for Cooper to comply with Ramos. The Court issues these unpublished opinions that change the landscape of the law, like Ramos, and then cites them as precedent; yet, does not publish them. What is the bench and bar to think of this? What is the law? Nobody knows for sure, and it gives the appearance that the Court is simply making it up as it goes.

State v. Kyle Parker Williams, No. S-2014-963 (Okl.Cr., July 10, 2015) (unpublished): Search and Seizure (Traffic Stops; Odor of Marijuana): In this traffic stop case out of Creek County, police detected the odor of marijuana (smoked, not fresh), and Williams protested that it was a lingering scent from marijuana that he had smoked the day before, and of course his driver’s license was revoked. Police searched and found even more marijuana. Special Judge Richard A. Woolery granted a motion to suppress the warrantless search, but offered no findings or reasoning; and when the State appealed to the Hon. James R. Pratt, District Judge, the decision was affirmed based on Arizona v. Gant (searches of vehicles incident to arrest are invalid in general). However, in this opinion, the OCCA reversed on the basis that the odor of marijuana provided sufficient reason to search the vehicle.

Clifford Lyle Littleraven v. State, No. C-2014-693 (Okl.Cr., July 9, 2015) (unpublished): Guilty Pleas; Child Neglect: Littleraven had two or more prior felony convictions and was charged with child neglect in Grady County, to which he pled guilty. The OCCA granted relief in this appeal because he was mis-advised concerning the punishment range. NOTE: For a first-time offender, the punishment range is 0-life/0-1 year county/$500-$5,000.00 fine; however, when the accused has two or more priors, the range is 4-life (since child neglect is not an enumerated crime under 57 O.S. 571, the minimum of 20 does not apply under 21 O.S. 51.1).

Robert Dewayne Cox v. State, No. F-2014-524 (Okl.Cr., July 9, 2015) (unpublished): Double Jeopardy: Cox was convicted by jury in Bryan County (the Hon. Rockey L. Powers, presiding) of possession of meth & marijuana, and public intoxication. Cox has separately packaged meth and marijuana in the same container, which the OCCA held was one violation of 63 O.S. 2-402; thus, double conviction was a violation of 21 O.S. 11. NOTE: Although the Court found a violation of the double punishment statute, it should be noted that the remedy was to dismiss count 2 (the misdemeanor), but leave the felony conviction intact.

EXECUTION NEWS: In light of the opinion issued on June 29, 2015, by the Supreme Court which affirmed the Tenth Circuit’s decision denying a stay of execution for Oklahoma death row inmate Richard Glossip on an issue surrounding implementation of lethal injection, the OCCA has issued orders setting execution dates for Benjamin Robert Cole (October 7, 2015) and Richard Eugene Glossip (September 16, 2015).

 

 

“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).

 

Glossip, et al. v. Gross, et al., No. 14-7955 (U.S., June 29, 2015): Death Penalty (Lethal Injection; Stays): This is the Oklahoma case dealing with the 42 U.S.C. 1983 litigation and the denial of a preliminary injunction by the Tenth Circuit. The Supreme Court affirmed, holding that the Petitioners (death row inmates in Oklahoma) failed to establish a likelihood of success on the merits (that the use of midazolam violates the Eighth Amendment).

 

 

United States v. Victor Tavarez-Levario, No. 14-50415 (5^th Cir., June 5, 2015): Statute of Limitations: Deciding an issue of first impression in the federal courts, the panel held that use of a forged immigration document is not a continuing offense for purposes of the statute of limitations.

United States v. Jayquis Brock, et al., No. 14-239-cr (2^nd Cir., June 3, 2015): Conspiracy: Conviction for drug conspiracy is reversed because the evidence showed merely that the accused purchased drugs from the conspiracy, not that he joined it.

United States v. Innocent Rutahagara Batamula, No. 12-20630 (5^th Cir., June 2, 2015): IAC (Immigration): A statement by the trial judge to the effect that deportation is “likely” is not dispositive of whether a petitioner whose counsel failed to advise him regarding the immigration consequences of his plea can demonstrate prejudice under Padilla.

United States v. Cecilio Mercedes-De La Cruz, No. 14-1186 (1^st Cir., May 26, 2015): IAC: This is “the rare case” where the panel found IAC on direct appeal (failure to file a motion to suppress and attack the arrest).

 

 

MARK P. HOOVER, OIDS, the Oklahoma Criminal Defense Weekly’s own contributing editor, scored a nice appellate win in the Littleraven guilty plea case featured above. Nice job, Mark!

 

 

POTUS IN OKLAHOMA: President Obama will be in Oklahoma this week to tour the federal prison at El Reno, apparently the first time a sitting President has ever visited a federal prison.

EDWARDS APPOINTED: Gov. Fallin appointed Leah Jo Edwards to the bench in Garvin and McClain Counties—yet another prosecutor straight out of the DA’s office and onto the bench.

R.I.P. JUDGE CHAPPELLE: Judge Carlos Chappelle retired about four weeks ago, and passed away on Sunday, June 28, 2015.

SERIAL TREE KILLER: A Tulsa chiropractor has been sentenced to probation for poisoning trees and lawns of several homes in sough Tulsa.

TCSO SUED: The Tulsa County Sheriff’s Office has been slapped with a civil suit detailing “years of problems” at the Office; also, an investigative report has uncovered some lavish spending by Sheriff Glanz.

INVESTIGATION: At the behest of CLEET, the OSBI is investigating the Wagoner County Sheriff’s Office for misconduct; but Sheriff Bob Colbert has fired back and denied allegations of falsified CLEET records.

NEW SHERIFF: Undersheriff Shane Booth has been sworn in as the new Sheriff in Ellis County.

NEW CHIEF: The town of Verden has hired a new police chief, James Miller; also, the police chief in Marlow has resigned.

OFFICER vs. OFFICER: Police officers in Konawa have been accused of animal cruelty by a fellow officer.

COUNTY COMMISIONERS: A County Commissioner in Alfalfa County and his wife have been arrested on firearms and drug charges; also, a Commissioner in Pushmataha County has been bound over for trial on fraud charges.

JAILER ARRESTED: A jailer in Stephens County jailer has been fired and charged with stealing medication from an inmate.

NEW FIRST ASSISTANT: Prosecutor Irma Newburn has been named First Assistant in Comanche County.

PRISON POLICY: Gov. Fallin has urged DOC to change a policy regarding earned credits for 85% crimes, a move that could lessen some sentences. The change has been opposed by District Attorney David Prater.

JUDGE RETIRES: Associate District Judge John Gardner (Pottawatomie County) retired recently.

ACCUSED WANTS DEATH: Accused triple-murderer Alan J. Hruby, being prosecuted for murdering his parents and sister in an inexplicable crime in Duncan, has used unwise judgment and corresponded with the media about his crime and desire to be put to death.

COMMUTATIONS: The Pardon and Parole Board has considered commutation applications recently, and granted hearings to twelve inmates.

 

WACKY CRIME

A Texas man involved in an accident waited for the Highway Patrol to arrive, and then did what we all would do: hop into the patrol car and take off!; note to self: do not use housecat as a bowling ball; a man caught in the act of molesting a child was chased and beaten by the child’s mother; burglar makes himself at home—only to get caught; a lobber got caught lobbing contraband—from one part of James Crabtree Correctional Center to another part.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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