OCDW 08.03.15

 

(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).

 

 

Klayton Jordan Kitchens v. State, No. F-2014-889 (Okl.Cr., July 17, 2015) (unpublished): Double Jeopardy: Kitchens was convicted by jury in Comanche County (the Hon. Gerald Neuwirth, presiding), of drug crimes. Two counts of possession were based upon marijuana and meth found in separate drawers of a dresser. This violated 21 O.S. 11 and constituted double punishment for a single act of possession of CDS.

Jason Duane Barnes v. State, No. RE-2014-575 (Okl.Cr., July 21, 2015) (unpublished): Suspended Sentences: Revocation proceeding out of Choctaw County where the Hon. Jana K. Wallace revoked based upon a new crime. The State introduced evidence of the new judgment and sentence, but no evidence that the conviction was final. Reversed and remanded for further proceedings.

Christopher M. Turner v. State, No. F-2014-580 (Okl.Cr., July 28, 2015) (unpublished): VCA: Turner was convicted by jury in Stephens County of four counts of Lewd Acts. The trial court (the Hon. G. Brent Russell) imposed a $2,500.00 Victims Compensation Assessment on each count. In this opinion, the Court vacated the VCA, and remanded for a hearing so that the trial court could support such an order with proper findings pursuant to 21 O.S. 142.18(A).

Tanner Levi Rutledge v. State, No. F-2014-321 (Okl.Cr., July 28, 2015) (unpublished): Drug Court: This case out of Choctaw County (the Hon. Gary L. Brock, presiding), involves a termination from drug court, and imposition of a 20 year sentence for eluding. Rutledge raised the issue that the 20 year sentence exceeded the statutory maximum (disputed by the State because Rutledge had priors), but the Court held that the claim was not cognizable in a termination appeal (it has to be presented in a certiorari appeal). NOTE: I included this opinion because of the procedural trap. Take heed.

Phillip Warren Tucker v. State, No. PC-2015-613 (Okl.Cr., July 29, 2015) (unpublished): Appeal Out of Time; Waiver (Appellate Issues): Tucker was convicted by jury of Manslaughter in the First Degree in Comanche County. He alleged that trial counsel filed a notice of intent to appeal, but failed to file a designation of record, which was fatal to a direct appeal. So, Tucker filed an application for post-conviction relief, requesting an appeal out-of-time. This was granted by the Hon. Emmit Tayloe, and then went up to the OCCA for final approval. The Court denied an appeal out-of-time because Tucker had not verified his application for post-conviction relief. NOTE: This is a major procedural trap in post-conviction cases, and I find it exceedingly harsh to treat verification as some sort of jurisdictional requirement, but the Court apparently did so (again, in an unpublished order). Be warned!

State v. Chad Allan Lunsford, No. S-2014-759 (Okl.Cr., July 31, 2015) (unpublished): Possession; State Appeals: This is a “passenger” case out of Blaine County where the passenger of a vehicle was charged conjointly with Trafficking when drugs were found in the car. The twist here is that the driver and owner of the car was homeless, and was living in the car, and Lunsford was wise enough to not make any statements. Basically, there was no evidence that Lunsford had knowledge of, or possessed, the drugs (thus, this was a “mere proximity” case under Staples). The Hon. Rick Bozarth granted Lunsford’s motion to quash after preliminary hearing, and the State appealed. In this 3-2 opinion (Judges Lumpkin and Hudson, dissented), the Court affirmed. NOTE: The majority applied the “abuse of discretion” standard of review, but the dissent seemed to apply a mixed standard (clearly erroneous for facts, and de novo for legal conclusions).

Darryl Gene Toler v. State, No. C-2014-614 (Okl.Cr., July 31, 2015) (unpublished): Guilty Pleas; Waiver (Appellate Issues): This is a Lewd Acts case out of Beckham County (the Hon. Doug Haught, presiding) where Toler entered a blind plea after jury trial had commenced and was sentenced to 25 years. Toler moved to withdraw his plea, was denied, but the trial court did suspend 15 years. On appeal, Toler’s principal argument was that there was no factual basis to support the conviction. However, the Court refused to consider this claim because he had not raised it as an issue in the district court (not even plain error review, and no IAC either). Also, to add insult to injury, the Court held that the order suspending the 15 years was void because the trial court had no jurisdiction to alter the sentence after it had been imposed. NOTE: This case illustrates a couple of things. In guilty/nolo plea cases, when you raise issues in the trial court, you will be stuck with those issues on appeal! Also, note that once a sentence is imposed from the bench, it cannot be changed in a motion to withdraw hearing (you must pursue a sentence modification or post-conviction relief).

 

 

“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. Martin Alcantara-Castillo, No. 12-50477 (9^th Cir., June 11, 2015): Prosecutorial Misconduct (Vouching; Improper Questions): Conviction for illegal re-entry into the country reversed because prosecutor vouched for immigration officer, and also asked the accused to comment on the veracity of the officer’s testimony.

Paul M. Zapata v. Rodolfo Vasquez, No. 12-17503 (9^th Cir., June 9, 2015): IAC; Prosecutorial Misconduct (Improper Argument): Habeas relief granted based upon trial counsel’s failure to object to prosecutor’s closing argument in which he imagined what the final words of the deceased might have been, which included ethnic slurs.

United States v. David Parse, No. 13-1388 (2^nd Cir., June 8, 2015): Motion for New Trial; Jurors: In this mail fraud/tax fraud case, denial of motion for new trial based upon juror bias, which had been granted as to co-defendants, is reversed.

United States v. Elliott Duke, No. 14-30559 (5^th Cir., June 5, 2015): Supervised Release: In this child porn case, the district court imposed two conditions of supervised release, a lifetime ban on accessing computers capable of Internet access, and no contact with individuals under 18. These were vacated as overbroad.

United States v. Yuri Bershchansky, No. 13-3145 (2^nd Cir., June 5, 2015): Search and Seizure (Search Warrants; Particularity): Search of an apartment that was not named in the warrant was unlawful (the warrant authorized a search of apartment number 2; but the police searched apartment number 1 instead).

 

 

MISTY FIELDS, Pryor, moved to dismiss a case of attempted burglary against her client which resulted in this AMAZING ORDER by the Hon. Terry H. McBride, dismissing the case on the basis of speedy trial and also for bad faith spoliation of evidence (the cell phone of the accused) by the State. This opinion is a must read. Terrific work, Misty!

JAMES L. HANKINS, OKC, and JUAN GARCIA, Clinton, scored a beautiful appellate win over the State’s appeal in the Lunsford case featured above. This was a “passenger” case where the passenger in a vehicle was charged conjointly with the driver/owner with Trafficking. Juan did the preliminary hearing and the motion work before Judge Bozarth in Blaine County, did a sterling job, and convinced the judge to grant a motion to quash. The State appealed, and the OCCA affirmed in a close 3-2 opinion. There are actually quite a few good opinions in “passenger” cases, and if any of you would like a copy of the brief that I filed, just shoot an e-mail.

MITCH SOLOMON & BOBBY LEWIS, OIDS, secured a not guilty by reason of insanity verdict in a bench trial in Shawnee in a case involving the “thrill killing” of a student at East Central University by another student who wanted to know what it felt like to kill someone. Nice work, Mitch and Bobby!

 

 

CYCLE GRANT: The Ardmore Police Department is seeking a grant to fund two motorcycle units to address the problem that some motorists have treated the streets of Ardmore as “their personal autobahn.”

SEIZURE ABUSE: Interesting article from Oklahoma Watch reporting on state audit records that show abuses in the way seized property is handled in Oklahoma; and HERE is a more detailed itemization of some of the abuses (spending seized money before it was forfeited, using seized money for retirement parties, etc.); also, HERE is a follow-up story about law enforcement seizures.

EXECUTIVE DIRECTOR NAMED: The new Executive Director of the Pardon and Parole Board is DeLynn Fudge, who comes straight out of the District Attorneys Council after serving there for 14 years as a federal grants director.

NEW CHIEF: Stewart Steele has been named the new Chief of Police of the Chickasha Police Department.

INTERNET CRIMES: The link goes to an article profiling the work of Sheriff Investigator Melissa Jackson in Muskogee County, who works the internet searching for criminal activity involving children.

GRAND JURY: The grand jury investigating the Tulsa Count Sheriff has been sworn.

SHERIFF COINS: The Wagoner Count Sheriff is questioned about specialty coins it authorized.

DRUG BUST: There was a large meth drug bust in Duncan recently.

EMPLOYING FELONS: BAMA Pie Company and other Tulsa area companies are spearheading efforts to employ felons.

DA OF THE YEAR: Jason Hicks has been named District Attorney of the Year.

POLYGRAPHS: This story from the Enid News describes how tough it is to beat polygraphs; and the Enid Police Department has used polygraphs since the 1970s.

WIRETAPS: Interesting article on state wiretaps, and that they are “rarely granted.”

WARRANT ISSUED: An arrest warrant has been issued for Ponca City police officer Rock Lewis Minghetti for domestic abuse; also, a former Valley Brook police officer has been arrested on sex crimes complaints; a police officer in Checotah has been arrested on a drug complaint; also, a police officer in Muldrow left the drug dog inside a patrol car and the dog died when the air conditioning “malfunctioned.”

CHIEF FIRED: The Chief of Police in Vian has been fired.

SILVERNAIL SPEAKS: OKC attorney Jay Silvernail made statements about how he shot and killed a former client. He has been cleared by the district attorney.

SOCIAL MEDIA: The OKC Police Department has an officer to deal with its social media presence.

PRISON BRAWL: Cimarron Correctional Facility in Cushing is still on high alert after a large inmate brawl nearly two months ago.

TEXAS A.G. INDICTED: The Texas Attorney General, Ken Paxton, has been indicted by a grand jury for securities fraud.

FILING PROCEDURE: Tulsa County is taking felony Informations that allege murder off-line so that named witnesses cannot be easily harassed.

BODY CAMS: The discussion about police body cams has been spurred by shootings in other states.

DUNCAN vs. PICKERILL: The Oklahoma Supreme Court has rejected, without comment, efforts by District Attorney Rex Duncan to continue his dispute with Judge Patrick Pickerill.

WACKY CRIME

Mother accused of assaulting son…with a chainsaw; son brings a machete to a gun fight with father; thief steals bondsman’s car, leads police on high-speed chase.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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