OCDW 07.20.15

 

(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).

 

 

Deandre Bethel v. State, No. F-2014-336 (Okl.Cr., July 15, 2015) (unpublished): Double Jeopardy: In this appeal out of Tulsa County (the Hon. James M. Caputo, presiding), the jury convicted Bethel of multiple counts. All were affirmed, except a conviction for robbery w/firearm, which was the predicate felony supporting a conviction for felony murder. This violated Double Jeopardy. NOTE: The legal rule is that separate convictions for felony murder and the predicate felony violate Double Jeopardy, but the remedy is to reverse the predicate felony with instructions to dismiss.

John Cody Brantley v. State, No. F-2014-525 (Okl.Cr., July 14, 2015) (unpublished): Sufficiency (Kidnapping): Brantley was convicted by jury in McCurtain County (the Hon. Michael DeBerry, presiding), of Kidnapping, A&B, and Threatening to Perform an Act of Violence. According to the opinion, Brantley lured the victim to a secluded area, punched him, threatened him in various ways for about an hour, and punched him again. The Court affirmed, but I included the opinion because the Court held that these actions were sufficient for the “confinement” element of a Kidnapping charge.

State v. Jason Michael Thomas, No. S-2014-1003 (Okl.Cr., July 13, 2015) (unpublished): Search and Seizure (Traffic Stops; Mistake by Officer): Thomas was stopped in Ada (Pontotoc County) for speeding in a construction zone, the officer smelled marijuana inside the car, and the search by consent yielded drugs. Thomas filed a motion to suppress, arguing that a contractor for DOT had posted a 25 MPH limit sign in error, and that therefore he was not speeding at all. The Hon. C. Steven Kessinger, Special Judge, agreed with this and granted the motion, holding that the officer made a mistake of law that could never be deemed reasonable under the Fourth Amendment. The State appealed, and the Hon. Greg Dixon affirmed. However, in this appeal the OCCA reversed, holding that the Supreme Court’s holding in Heien v. North Carolina, 135 S.Ct. 530 (2014), resolved the issue and abolished the mistake-of-fact vs. mistake-of-law analysis. NOTE: This is how our rights erode. The actual law is largely irrelevant now in suppression cases. The focus in on the police officer and whether his/her actions are “reasonable.”

 

 

“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.

 

 

United States v. Quartavious Davis, No. 12-12928 (11^th Cir., May 5, 2015) (en banc): Search and Seizure (Search Warrants; Stored Communications Act): The Stored Communications Act allows a court to compel production of a third-party telephone company’s business records containing historical cell tower location information. In this opinion, the en banc court held that such an order did not violate the rights of Davis.

United States v. Kathy Medlock, No. 14-5084 (6^th Cir., May 13, 2015): Identity Theft: Various convictions for fraud are affirmed, but the panel reversed convictions for identity theft where the Medlocks, who ran a non-emergency ambulance business, misrepresented that certain people had been transported by stretchers. The panel held that this does not constitute “use” of the identification of these people under the federal aggravated identity theft statute.

United States v. Corey Griffin, No. 14-1508 (7^th Cir., May 21, 2015): Supervised Release: Drug case where the conditions of supervised release were vacated pursuant to the circuit’s watershed decision in United States v. Thompson, 777 F.3d 368 (7^th Cir. 2015), which held that the conditions of supervised release are part of the sentence and must be supported with reasons about how they relate to the 18 U.S.C. 3553(c) sentencing factors.

United States v. Donald Eugene Creel, No. 14-12438 (11^th Cir., April 21, 2015): Scienter; Child Porn: As phrased by the panel, this appeal “requires us to decide whether the definition of ‘distribution’ of child pornography under the Sentencing Guidelines, U.S.S.G. § 2G2.2(b)(3)(F) (Nov. 2013), includes an element of mens rea.” Creel pled guilty to receipt of child porn, but his sentenced was enhanced because he “distributed” it using a file-sharing program. The panel held that the Guidelines do not require an offender to know that he made child porn accessible to others.

United States v. Bigley, No. 12-3022 (D.C. Cir., May 15, 2015): Entrapment (Sentencing Manipulation): Although arguments of sentence manipulation were prohibited by circuit precedent prior to Booker, the Court held that post-Booker defendants must be allowed to argue all non-frivolous mitigation, and this includes allegations of sentence manipulation (here, Bigley was caught in a sting operation in a pedophile chat room, and the police officer suggested that he bring his camera to a meeting, which was used to enhance his sentence).

Curtis J. Pidgeon v. Judy P. Smith, Warden, No. 14-3158 (7^th Cir., May 13, 2015): IAC; Guilty Pleas: Pidgeon pled guilty under state law, but upon erroneous advice of counsel concerning the punishment range. The district court granted an evidentiary hearing, at which Pidgeon testified, but trial counsel did not (as required by state law). The district court granted relief, and in this opinion the panel affirmed, holding that the federal district court is not bound by state procedure in this regard.

Thomas Barton v. Warden, No. 12-4003 (6^th Cir., May 15, 2015): Prosecutorial Misconduct (Brady Cases): Habeas relief is granted on the basis that the State withheld evidence that would have impeached the sole witness against Barton.

 

 

None noted.

 

 

PROSECUTOR ATTACKED: Assistant District Attorney Katie Koljack (Tulsa County) was hit with a water pitcher thrown by a defendant in a competency jury trial. Ms. Koljack sustained a split lip and a broken tooth.

BATES TRIAL: The trial for former Tulsa County Reserve Deputy Robert Bates has been set for next February in front of Judge James Caputo in Tulsa County.

BUSTED: A city of Edmond employee was busted recently for parking illegally in a handicapped space in front of a Subway. The photographic evidence was sent to the Edmond newspaper. I guess it is a sign of the times that a customer would go to the trouble to photograph the offending vehicle, and a newspaper would publish such an event as news.

SHERIFFS I: Custer County Sheriff Bruce Peoples spent $6,000.00 on a “policies and procedures study” which appears to be of little help.

SHERIFFS II: There may be a whiff of nepotism going on at the Wagoner County Sheriff’s Office.

INTERESTING SENTENCE: A man in Weatherford was convicted of rape, but was sentenced to four 15-year sentences, concurrent and suspended except for the first year…but the year is to be served as “flat time” with no credit for time served per the order of Judge Jill Weedon.

CRIMINALS: This guy almost got caught trying to steal a TV from Wal-Mart the first time, and definitely got caught the second time; a young woman in Enid and her “jailed boyfriend” were charged with blackmail when they threatened to out a gay resident on Facebook; and finally, this genius attempted to shoot another person with a flare gun, missed, and set a filed on fire.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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