Wednesday, November 21, 2007

Randolf Dial Dies in Prison

One of the earliest posts to this blog concerned escaped oklahoma killer randolph dial. Dial's story involves a series of events too strange for fiction. In 1986, Dial, a gifted artist, confesses to the 1981 murder of Kelly Hogan. Dial is convicted in Tulsa County Case CRF-1986-1657 of First Degree Murder. In 1994, Dial escapes from prison in Granite, Oklahoma. He abducts the deputy warden's wife, Bobbi Parker, and uses her van in the escape. The van is discovered two days later in Wichita Falls, Texas. Eight days later, Parker's family receives phone calls saying she will be home soon.
Over ten years later, a tip following a broadcast by the television show "America's Most Wanted" leads authorities to a secluded trailer house in Campti, Texas, where Dial and Parker were both residing and working on a chicken ranch. Dial and Parker both state that Parker was being held against her will based upon threats against her family.
Randolph Dial died of complications from lung cancer on June 13, 2007.

Thursday, September 27, 2007

First Degree Manslaughter Charges Filed in Tulsa "Road Rage" Case

Tulsa County District Attorney Tim Harris filed a first-degree manslaughter charge Wednesday against Kenneth Ray Gumm, 67, in the shooting death of Dale Turney, 47.

Gumm, a retired security guard, is accused of killing Turney in a River Parks parking lot on June 10.

The shooting occurred about 4 p.m. on a Sunday afternoon near 19th Street and Riverside Drive. Witnesses said there were many people in that area of the park at that time.

''An alleged road rage confrontation ended in a tragic result,'' said Harris said in a prepared statement. ''Every situation has specific facts and circumstances unique to itself. These individualized facts are applied and analyzed under the law.''

Oklahoma law allows a person to use deadly force in self defense if that person has a reasonable belief such force is necessary to protect himself from imminent danger of death or great bodily harm, Harris said.

''We have reviewed evidence and investigation presented by the Tulsa Police Department,'' Harris said. ''Further investigation was conducted by the DA's Office, which led to the decision to file the charge. The defendant is presumed to be innocent under the law, but we will be prepared to present evidence in court at the appropriate time,'' he said.

First-degree manslaughter carries a minimum sentence of four years to a maximum sentence of life in prison.


Wednesday, July 18, 2007

Governor signs ATV helmet law

A state law requiring persons under 18 to wear a crash helmet while riding an all-terrain vehicle on public lands was signed into law Tuesday and takes effect Nov. 1.
State Rep. Bill Nations, D-Norman, House author of the legislation, said the measure was two years in the making and could not have passed without bipartisan support. Co-sponsor was Sen. Andrew Rice, D-Oklahoma City.
Besides legislators from both parties, Nations credited the help of the state health department’s Dr. Michael Crutcher and Kevin Pipes, the parents of injured children and the emergency trauma staff at the OU Health Sciences Center.
The law, signed by Gov. Brad Henry Tuesday, requires riders and passengers under age 18 to wear helmets while riding on public lands. In addition, the law prevents passengers from riding on ATVs unless that vehicle was designed to carry passengers.
The bill allows peace officers, including park rangers, to enforce the bill’s provisions. There are also penalties for adults who allow an underage rider to ignore the law.
Oklahoma now becomes one of 35 states that have enacted some safety requirements for children and teenagers driving and riding ATVs.
“As a result of the combined efforts of many professionals and involved families, lives will be saved and expensive disabling traumatic head injuries to children will be reduced,” Nations said. “This is a reasonable way to begin reversing the increases in ATV injuries and deaths in Oklahoma’s children. Although the legal aspects of this statute are aimed at preventing injuries on public lands, it is our hope that parents will take this as an encouragement to all parents to voluntarily ensure proper training and helmet use no matter the location.”
Nations said helmets reduce deaths by 42 percent and nonfatal head injuries by 64 percent. So far in 2007, seven Oklahomans have died while riding an ATV. That total includes three children. In 2006, 19 Oklahomans including three children died in ATV crashes.
“The State of Oklahoma was made a safer place for children because of the passage of this new law. By preventing devastating traumatic injuries, we will be able to save people from a lifetime of physical, emotional and financial suffering,” said Crutcher, secretary of health and the state’s commissioner of health.

Tuesday, July 10, 2007

Chesapeake to Court: Stop Plant Hearings

An attorney for Chesapeake Energy Corp. said Tuesday the Oklahoma Corporation Commission is using judicial powers it does not have to hold hearings on a proposed coal-fired power plant the natural gas producer opposes.

Chesapeake, the third largest independent gas producer in the U.S., took its case to a state Supreme Court referee in an attempt to stop hearings that began on Monday before the commission on whether the proposed 950-megawatt, $1.8 billion generating unit is needed.

Oklahoma City-based Chesapeake has questioned plans to build coal-fired generating facilities in Oklahoma and Texas. Natural gas competes with coal as a fuel for power plants.

Chesapeake attorney Robert A. Nance told referee Daniel Karim the commission does not have legal authority to pre-approve power plants and that the hearings are an "unauthorized use of judicial power."

"The Corporation Commission is a tribunal of limited jurisdiction," Nance said. "They're exercising judicial force without authority."

Attorneys for the state and a coalition of power producers that proposed the plant said it is a legislative - not judicial - function of the commission to hold hearings on the need for the proposed plant and other public utility projects.

A determination that the plant is needed will allow power producers to recover construction costs as the plant is built by adding them to customer rate bases. Utility officials have said the proposed plant's high cost will prevent them from building it unless it is preapproved by the commission.

"We'd like to know what the rules are ahead of time," said David A. Kutik, an attorney for Oklahoma Gas & Electric Company, which proposed the Red Rock generating unit with Public Service Company of Oklahoma and the Oklahoma Municipal Power Authority.

The proposed plant will be built in Noble County about 80 miles north of Oklahoma City. PSO will own 50 percent, OG&E will operate the facility and own 42 percent and the Oklahoma Municipal Power Authority, which provides electric power to about 20 communities in the state, will own 8 percent.

Red Rock would be located next to OG&E's Sooner Power Plant facilities.

Assistant Attorney General Bill Humes said recent changes in state law authorized the commission to review utility projects in advance rather than in hindsight. The commission can bar utilities from recovering construction costs of plants already built if it finds the costs were not reasonable.

Utility officials have said the proposed Red Rock plant will help the utilities keep up with growing consumer demand for electricity and keep costs down by using low-cost coal as a fuel instead of natural gas. Coal costs 85 percent less than natural gas, which has increased in price 117 percent over the last five years.

PSO's generating plants are primarily fueled by natural gas but the company also uses wind power and other fuels. If the company had relied solely on natural gas as a fuel over the last five years, its customers would have paid $1.7 billion more in fuel costs, according to company officials.

Opponents, including environmental groups, say natural gas burns much cleaner than coal and causes fewer environmental problems.

Karim said he will make a recommendation to the Supreme Court in about a week.
By TIM TALLEY 07.10.07, 6:06 PM ET

Ruling blocks direct sales of wine from producers to stores and restaurants

Gene Clifton, owner of Canadian River Winery & Vineyard near Norman, has more on his mind than this year's grape harvest.
He's worried his business will go belly-up because of a recent court ruling prohibiting wineries from selling directly to retailers and restaurants. For Clifton, direct distribution makes up 65 percent of his sales.
"Like most wine makers, we based our business plan on outside sales, so now we're stuck,” he said. "It's almost impossible to make up that kind of hit.”
In 2000, Oklahoma voters approved a measure that made wine makers exempt under Oklahoma liquor laws, which require all alcohol manufacturers to sell through a wholesaler.
But a change came after three large liquor wholesalers sued the Alcoholic Beverage Laws Enforcement Commission in federal court last year. In November, a federal judge ruled the provision was in violation of interstate commerce laws. He gave the Legislature six months to fix it, but lawmakers failed to directly address the issue during the 2007 session. So on June 15, the judge ruled in favor of the wholesalers, striking down wineries' exemption and upholding a three-tier system for alcohol distribution.
Liquor wholesalers argue the three-tier system reinforces the way Oklahoma taxes, regulates and enforces alcohol laws. Winemakers say reverting to the pre-2000 law burdens the fledgling wine industry and puts the reins on agritourism, with vineyards and wineries playing a major role. Winemakers statewide also fear wholesalers will overlook newer, less established wineries and their brands. They also say wholesaler costs — about 22 percent — will cut too deep into their profits.
Mike Greenfield, co-owner Greenfield Vineyard and Winery, said the new regulations are prohibitive for startup vineyards that only produce a few thousand bottles of wine a year. His vineyard, for example, doesn't produce enough to offer large discounts to stay competitive, he said. He already discounts 33 percent to compensate for the retailer's mark up; an additional discount would be cost-prohibitive.
"Even if we wanted to use a wholesaler at this point, they don't have to use us. It's a huge hardship. My prediction is there're going to be wineries that go out of business,” Greenfield said. "We invested everything we had — bet the farm basically — that we were going to be able to directly distribute, so that if traffic was low a particular month we could hit the retail market hard, but we can't do that ... unless we use a wholesaler and we can't make any money that way.”
Alexander said a few wholesalers are placing orders with the wineries that are posting their prices with them. Alcohol manufacturers are required to post their prices to wholesalers every month. Those who waited to hear the federal judge's ruling probably will post July 15 in order to make the deadline for Sept. 1 orders.
Alexander said Oklahoma City-based Central Wholesale Liquor Co. has placed orders with the eight wineries that have posted prices.
"As far as I know, every major wholesaler in the state is carrying Oklahoma wines right now and has ordered Oklahoma wines. Now that doesn't mean that they'll order every specific brand,” he said.
Alexander said many Oklahoma wineries don't have enough demand for their products, and that's not the fault of the wholesalers or the Legislature.
Besides direct distribution, many Oklahoma wineries also were shipping their products. In April, Gov. Brad Henry signed into law HB 1753 which made it illegal for wineries to ship in state. Wineries are still able to ship products out of state, but most say they don't have a need to.
"This was not specific to stop Oklahoma wineries. This was specific to stop anyone else from shipping directly,” Alexander said. "If Gallo and other wineries could ship directly to consumers, it would absolutely affect wholesalers. We can't allow Oklahoma companies to do something that California companies or Arizona companies are not allowed to do.”
Gary Butler, president of the Oklahoma Grape Growers and Wine Makers Association, said wholesalers are concerned more about the future of their industry than the 53,000 gallons of wine Oklahoma wineries sold last year. The group Oklahomans for Modern Laws is trying to legalize the sale of strong beer and wine in grocery and convenience stores, and is making headway on a petition that could put the issue before voters.
"The wholesalers, I think, are primarily concerned about losing revenue with the large retailers if it does get in grocery stores,” he said. "I think they're more concerned about leaving the door open for large retailers to bypass (the wholesalers).”
Recently, Costco, a large discount chain, challenged alcohol distribution laws in Washington state and won the right to order directly from wineries. But Butler is most concerned that the law will cause small wineries to go out of business and make it difficult for people to enter the industry.
"Self distribution is crucial,” he said. "It gives small farm-based wineries an opportunity to build their businesses without huge capital investment.”
For seven years, winemakers have enjoyed self distribution, and the fledgling industry grew from two wineries to 45 licensed wineries, said Marta Patton, deputy director of the ABLE Commission, the agency that regulates Oklahoma's liquor laws.
"It's a trade off. It costs them. They make probably less for their wine because there's a markup when it goes through the (wholesaler), but if someone wants it, they're willing to pay for it. That's supply and demand.”
Much like the wine they grow, Patton said winemakers are a "resilient” group of people and will survive.
"I know this is a setback for them in their minds, but I also know the system is set up to help them,” she said.
Rewriting the law to include production caps could help appease winemakers and distributors, said Rep. Jeff Hickman, R-Woodward. He wrote one bill that would have required wineries that produce more than 10,000 gallons a year to use a wholesaler.
Hickman said he is hopeful that the wholesalers and winemakers can reach common ground next session. But he doesn't have much hope for overhauling the entire alcohol distribution system.
By Trisha Evans
Business Writer

Tuesday, July 03, 2007

Principal chief retains leadership in Cherokee Nation elections

TAHLEQUAH, Okla. - Citizens of the Cherokee Nation of Oklahoma went to the polls June 23 and reaffirmed their confidence in the leadership of Principal Chief Chad ''Corntassel'' Smith and Deputy Chief Joe Grayson Jr. Smith was re-elected with 59 percent of the vote for a third four-year term as principal chief, beating out his opponent, former Cherokee Nation Supreme Court Justice Stacy Leeds. Grayson was approved for a second term with 61 percent of the vote, over Raymond Vann, a retired General Motors foreman. During pre-election debates, Leeds challenged the current leadership's distribution of gaming revenues, claiming more money should be designated for health care services. Smith disagreed, arguing that at the present time, developing tribal business and employment opportunities was most critical. Currently, 30 percent of Cherokee gaming revenues are allocated for tribal services and 70 percent for business development. Smith said that solidifying existing Cherokee business ventures and expanding new ones has been the strategy of his administration that has worked best for the tribe in achieving its current level of success. He contended the nation must continue to build on that success. ''When I [first] got into office, we didn't have two nickels to rub together,'' he said. ''Cherokees have a long history of surviving abject poverty. The question now is, can we survive prosperity?'' The tribe currently employs some 6,500 people, and many new jobs have been created under Smith's leadership through expansion of the tribe's casino operations, which feature seven casinos in northeastern Oklahoma. During the debates, Grayson indicated that there has been an approximate 50 percent increase in tribal employment over the past three years, but he supports Smith's assertion that maintaining these advancements are critical. ''We're competing in the private sector now, so we need people that have experience in the private sector to run the businesses and keep them going.'' Smith and Grayson both emphasized the continued need to focus on improving diplomatic relations with state and federal entities. Grayson said the struggle to assert and solidify sovereignty is essential. ''The state doesn't realize that we are the largest employer in northeastern Oklahoma and every two weeks we pump into the economy of northeastern Oklahoma about $3.5 million in salaries - money funneled back into Oklahoma by the Cherokee Nation.'' Smith also cited long-term strategies to improve tribal leadership as another important challenge for the nation. He said consensus is the key to achieving goals the tribe has set. ''We need leaders that will pull together,'' he pointed out. He said statesmanship and leadership focused on the best interests of the whole tribe leads to greater success. He placed special prominence on ideas for developing culturally based leadership qualities and skills among the nation's youth. ''What greater honor can you ever be engaged in than passing on [our] great Cherokee legacy with discipline, compassion and the idea that we're doing it for something bigger than ourselves?'' he asked. Prior to his service as principal chief, Smith taught Indian law at Dartmouth College, Northeastern State University and Rogers State University. He has written college curricula in tribal operations and authored a 600-page course book on Cherokee legal history. He holds a bachelor's degree in education from the University of Georgia; a master's degree in public administration from the University of Wisconsin; and a juris doctorate from the University of Tulsa, according to the Cherokee Nation Web site. He also served with two previous administrations as director of tribal planning, legal historian, attorney, tribal prosecutor, director of justice and adviser to the tribal tax commission. Smith has also worked as a prosecutor in Creek County and a public defender in Tulsa County, and operated his own private law practice. Grayson is a highly decorated Vietnam veteran, having served in the U.S. Army, 4th Infantry Division. He is a member of the Masonic Lodge and the American Legion. His professional life has been spent as a plumbing contractor and employee of W.W. Hastings Hospital in Tahlequah, according to Chad Smith's Web site. Grayson has co-chaired the Cherokee National Holiday Committee, the Tahlequah Public Schools Indian Parent Committee and served as chairman of the Cherokee United Way. In 2005, he was elected National Congress of American Indians Vice President for Eastern Oklahoma. Fifteen tribal council members were also confirmed in the election. They include Bill John Baker, Cherokee District 1; S. Joe Crittenden, Trail of Tears District 2; David W. Thornton and Janelle Lattimore Fullbright, Sequoyah District 3; Don Garvin, Three Rivers District 4; Harley L. Buzzard and Curtis G. Snell, Delaware District 5; Chris Soap and Meredith Frailey, Mayes District 6; Cara Cowan Watts, Will Rogers District 7; Buel Anglen and Bradley Cobb, Oolagah District 8; Charles ''Chuck'' Hoskin Jr., Craig District 9; and Julia Coates and Jack D. Baker, councilors at large. A run-off election is scheduled for July 28, to decide the winners of two undecided seats between incumbent Audra Smoke-Connor and Tina Glory Jordan in District 1, and incumbent Jackie Bob Martin or Jody Fishinghawk in District 2. In addition, the election also yielded a vote to affirm the removal of mandatory federal approval for amendments to the Cherokee Nation Constitution, with 67 percent carrying the question.
by: Patti Jo King

Legislator Wants to Talk About Water Sale

An Oklahoma state senator is taking a politically unpopular stance by saying his state should consider selling what he describes as "excess runoff water" to Texas if it will help raise money to pay for new roads, bridges and other projects in his district.
State Sen. Jeff Rabon, a Democrat from Hugo, said a proposal made by the Tarrant Regional Water District to buy water from Oklahoma before it flows into the Red River will not drain the state's lakes, empty its aquifers or leave its farmers high and dry, as critics have contended.
Although additional studies are needed, Rabon argues that refusing to even think about selling the water is irresponsible. The state has a moratorium on out-of-state water sales that the water district is challenging in federal court as unconstitutional.
"What is the problem in talking about it?" asked Rabon, who represents a southeastern Oklahoma district that includes one of the basins where the water district wants to get the water. "I've never understood the notion or mind-set that you don't talk about it. At the end of the day, when the study is done or the courts have wrangled, it may in fact not be a good public policy.
"But you don't get there without talking about it. I'm not afraid to keep it on the table for discussion," Rabon said.
Jim Oliver, executive director of the Tarrant Regional Water District, said the district has made progress with other Oklahoma lawmakers as well.
"When we've met with a number of elected officials they were cautiously positive on our deal but they do understand politically that it is a tough thing for them to get in front of," Oliver said.
He said the cities in southeastern Oklahoma need the money.
"The towns are sitting at reservoirs, but they can't afford the pump stations and stuff to get the water," he said.
Other Oklahoma lawmakers reject any suggestion of selling water to Texas until a new statewide water use study is completed, and environmental and economic groups are concerned about how the idea will affect the quality and quantity of water flowing into the Red River.
"Now that Oklahoma lakes are full and the drought is broken I hope we don't forget what kind of desperate problems we had when we were in a drought and make some rash decision," said state Rep. Mike Reynolds, a Republican from Oklahoma City.
Water into money
While getting water from Oklahoma for Fort Worth and Dallas is not a new idea, the Tarrant Regional Water District's recent proposal has so far met with little public support. Even Oklahoma state Sen. Jeff Rabon acknowledges that it's a "touchy subject."
Rabon, a Hugo Democrat whose district includes the Kiamichi River basin, one of the areas where the water district wants to collect water, is among a few legislators who have spoken out about studying selling the water to North Texas.
Oklahoma Water Resources estimates that 1.5 million to 1.7 million acre-feet of water, or 488.7 billion to 553.9 billion gallons, empties from the Kiamichi River every year, Rabon said. He said that is "four times the amount [of water] the entire state uses in a year, Oklahoma City and Tulsa included."
The money could be used to pay off a $68 million debt the state owes the Army Corps of Engineers for building Lake Sardis as well as bridges, roads and pipelines to carry water to communities in his district that can't afford them, he said.
"This part of the state needs the money," Rabon said. "I have done all I can to improve the economic well-being of the district, and just because it's uncomfortable I won't breach that responsibility" by not talking about turning a natural, replenishing resource that may be wasted, to a large degree, into a revenue stream.
Not so fast
Oklahoma state Rep. Jerry Ellis, chief sponsor of the moratorium blocking out-of-state water sales, said the majority of Oklahomans oppose the sale. He said Rabon is willing to talk about the idea because term limits prevent him from serving after 2008.
"He feels like he can do what he wants to, but my feeling is to do what the majority wants you to do," Ellis said.
Ellis echoes concerns from several groups that once water goes to Texas, it will be hard to get it back during a drought.
"When we're wet, you are too. When we need water, you need it too," said Ellis, a Democrat from Valliant. "We think the local people ought to be taken care of; there is no guarantee that they will be."
Legal update
The water district applied for permits to capture water from the Cache Creek and Beaver Creek basins, near Lawton, and the Kiamichi River basin near McAlester. The district wants to divert about 7 percent of the water before it goes into the Red River and absorbs too much salt to be drinkable.
The Upper Trinity Regional Water District, which serves Collin, Dallas and Denton counties, also filed for a permit.
The Tarrant Regional Water District sued the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission to keep the state from automatically dismissing or denying its permits while the matter is in court. The Tarrant water district contends that a state moratorium blocking out-of-state water sales violates federal law concerning interstate commerce.
The water district's research also indicates that when Oklahoma encouraged the federal government to build reservoirs there in the 1950s, the state encouraged the Corps of Engineers to consider the future demand for water from Fort Worth and Dallas.
"If they lose the lawsuit, it opens the door for us and others to apply for the run of the river and stored water and that is the risk they are facing," Oliver said.
Oklahoma wants the case dismissed, saying that no contract exists for selling the water, and since the moratorium applies only to contracts, there is no basis for the lawsuit. A letter from the Arkansas Natural Resources Commission stating its concern about how the plan will affect water flowing into the Red River was also was entered into evidence.
U.S. District Judge Joe Heaton has not scheduled arguments.
Star-Telegram staff writer
Max B. Baker, 817-390-7714

Thursday, January 04, 2007

2006 Oklahoma Court of Criminal Appeals Decisions 1-11

Case Number: O-2004-1175
2006 OK CR 1; 127 P.3d 1135; 2006 Okla. Crim. App. LEXIS 1
January 5, 2006, Decided


PROCEDURAL POSTURE: Defendant sought review of the decision of the Oklahoma County District Court, which concluded that he had not met his burden of proving that he was mentally retarded and denied his motion to quash the bill of particulars on grounds of mental retardation.

OVERVIEW: Defendant was currently charged with first-degree murder and he currently appealed the determination that he failed to meet his burden of proving by a preponderance of the evidence that he was mentally retarded. While he presented some evidence suggesting that he suffered from mental retardation, he did not show by a preponderance of the evidence that he met all three prongs of the definition for mental retardation. Additionally, the court set forth the procedures to be followed to resolve future Atkins claims.

OUTCOME: The judgment was affirmed.

RYAN GOLDEN, Appellant -vs- STATE OF OKLAHOMA, Appellee
Case Number: F-2004-582
2006 OK CR 2; 127 P.3d 1150; 2006 Okla. Crim. App. LEXIS 2
January 10, 2006, Decided

PROCEDURAL POSTURE: A jury for the Pottawatomie County District Court (Oklahoma) found defendant guilty of first degree murder, in violation of Okla. Stat. tit. 21, § 701.1(A) (2001). The jury set punishment at life imprisonment without the possibility of parole and the trial judge sentenced defendant in accordance with the jury's verdict. Defendant appealed.

OVERVIEW: Prior to jury selection, the trial court announced it would call 22 names and then the State and defendant would each have five peremptory challenges. Okla. Stat. tit. 22, § 655 (2001) provided that in prosecutions for first degree murder defendant was entitled to nine peremptory challenges. The trial court erred when it did not allow defendant nine peremptory challenges. The appellate court agreed with defendant that the trial court's error deprived him of his statutory right to nine peremptory challenges and his constitutional right to due process of law. While defense counsel did not object, the trial court had an affirmative duty to inform defendant of his right to challenge jurors, Okla. Stat. tit. 22, § 651 (2001), and its failure to so inform defendant of that statutory right and all that it encompassed constituted clear, structural error. Thus, the statutory right was not subject to a harmless error analysis. In addition, the right to a trial before a fair and impartial jury was the hallmark of the American system of justice, and was guaranteed by both the U.S. Const. amend. VI and Okla. Const. art. II, §§ 19, 20. Thus, defendant was entitled to a new trial.

OUTCOME: The appellate court reversed the trial court's judgment and sentence and remanded the case to the trial court for a new trial.

Case Number: PCD-2004-321
2006 OK CR 3; 127 P.3d 1158; 2006 Okla. Crim. App. LEXIS 3
January 20, 2006, Decided
PRIOR HISTORY: Murphy v. State, 2005 OK CR 25, 124 P.3d 1198, 2005 Okla. Crim. App. LEXIS 23 (Okla. Crim. App., 2005)JUDGES: CHARLES S. CHAPEL, Presiding Judge, GARY L. LUMPKIN, Vice Presiding Judge, CHARLES A. JOHNSON, Judge, ARLENE JOHNSON, Judge, DAVID B. LEWIS, Judge.OPINION: ORDER RESPONDING TO STATE'S MOTION FOR CLARIFICATION On December 7, 2005, this Court remanded this post-conviction case for a jury trial on Murphy's mental retardation claim. Murphy v. State, 2005 OK CR 25, 124 P.3d 1198.On January 9, 2006, the State filed a Motion for Clarification of that opinion. This Court's case law on the issue of mental retardation in capital cases, when read in its entirety is neither confusing nor in conflict. Lambert v. State, 2003 OK CR 11, 71 P.3d 30, and Salazar v. State, 2004 OK CR 4, 84 P.3d 764, control in this post-conviction proceeding. Regarding the State's questions, this Court does not issue advisory opinions. Canady v. Reynolds, 1994 OK CR 54, P9, 880 P.2d 391, 394; Matter of L.N., 1980 OK CR 72, P3, 617 P.2d 239, 240.

Case Number: F-2005-104
2006 OK CR 4; 128 P.3d 1085; 2006 Okla. Crim. App. LEXIS 5
February 1, 2006, Decided


PROCEDURAL POSTURE: Defendant sought review of the decision of the District Court of Payne County (Oklahoma), which convicted him of unlawful possession of controlled drug with intent to distribute in violation of Okla. Stat. tit. 63, § 2-401(B)(2) (Supp. 2004), unlawful possession of drug paraphernalia in violation of Okla. Stat. tit. 63, § 2-405 (2001), and obstructing an officer in violation of Okla. Stat. tit. 21, § 540 (2001).

OVERVIEW: Defendant appealed his convictions, but the court affirmed, stating that it adopted the following rule: If, during a non-flagrant but illegal stop, the police learned the defendant's name, and the disclosure of that name led to the discovery of an outstanding warrant for the defendant's arrest, and the execution of that warrant led to the discovery of evidence, the existence of the arrest warrant was deemed an independent intervening circumstance that dissipated the taint of the initial illegal stop vis-a-vis the evidence discovered as a consequence of a search incident to the execution of the arrest warrant. Defendant's arrest on a valid outstanding warrant was an independent intervening circumstance that attenuated the taint of the illegal stop. The officer had no flagrant or improper purpose in making what was later determined to be an invalid traffic stop. Discovery of defendant's outstanding arrest warrant was an independent intervening circumstance that attenuated the taint of the initial illegal stop and seizure. Thus, the trial court did not err in overruling defendant's motion to suppress.

OUTCOME: The court affirmed the judgment and remanded for an order nunc pro tunc reflecting that defendant's sentences should run concurrently.

Case Number: D-2002-534
2006 OK CR 5; 128 P.3d 521; 2006 Okla. Crim. App. LEXIS 4
January 27, 2006, Decided
SUBSEQUENT HISTORY: Rehearing granted by, Motion denied by Jones v. State, 2006 OK CR 10, 132 P.3d 1, 2006 Okla. Crim. App. LEXIS 9 (Okla. Crim. App., 2006)US Supreme Court certiorari denied by Jones v. Oklahoma, 166 L. Ed. 2d 287, 2006 U.S. LEXIS 7658 (U.S., 2006)

PROCEDURAL POSTURE: Defendant appealed a decision of the Oklahoma County District Court (Oklahoma) convicting him of first degree murder under Okla. Stat. tit. 21, § 701.7(B) (1998), possession of a firearm after conviction of a felony under Okla. Stat. tit. 21, § 1283 (1998), and conspiracy to commit a felony under Okla. Stat. tit. 21, § 421 (1999). Defendant was sentenced to death.

OVERVIEW: Defendant and the codefendant followed the victim intending to steal his car. Defendant shot the victim and took the car. The court held among other things: (1) the struck juror method did not deprive defendant of a fair method of jury selection; (2) the information set forth in the affidavit to obtain the search warrant was sufficient, and defense counsel was not ineffective for failing to request a Franks hearing because the warrant would have properly been issued even if "inaccuracies" had been removed from the affidavit; (3) because a witness whom defendant asked to help him sell the car was not an accomplice as a matter of law, his testimony did not require corroboration; (4) there was sufficient evidence that defendant was a felon in possession of a firearm because defendant had a prior felony conviction, and the murder weapon was found in defendant's home; (5) defendant participated as a principal, and accessory after the fact instructions were neither required nor warranted under the facts of this case; and (6) the flight instruction was proper because there was evidence that defendant fled from a second story window after an officer talked to him by phone.

OUTCOME: The court affirmed defendant's conviction and sentence.

Case Number: F-2004-882
2006 OK CR 6; 130 P.3d 273; 2006 Okla. Crim. App. LEXIS 6
February 22, 2006, Decided


PROCEDURAL POSTURE: Defendant was tried by a jury and convicted of murder in the first degree, in violation of Okla. Stat. tit. 21, § 701.7(A) (2001), in the District Court of Tulsa County (Oklahoma). In accordance with the jury's recommendation, the trial court sentenced defendant to life imprisonment without the possibility of parole. Defendant appealed from his judgment and sentence.

OVERVIEW: The victim was a methamphetamine user and dealer. The medical examiner concluded the victim died from blunt force trauma and strangulation. The appellate court found that the trial court erred in failing to instruct the jury regarding the 85 percent Rule, Okla. Stat. tit. 21, § 12 (2001), that a defendant sentenced to a term of imprisonment would be required to serve at least 85 percent of that sentence before being eligible for parole. Additionally, the expert's testimony that her DNA methodology was conservative and erred on behalf of the defense was proper. Thus, counsel could not be faulted for failing to object to it. In addition, counsel conducted a thorough and far-ranging cross-examination, getting a witness to admit she was a drug user, liar, and thief who kidnapped her children and was familiar with the victim's drug business. Also, he forcefully argued in closing that the witness had a motive to commit the murder and to accuse defendant. Finally, counsel's failure to bring out the slight inconsistency regarding the witness's hope for a benefit from testifying against defendant did not constitute ineffective assistance of counsel under the Sixth Amendment.

OUTCOME: The appellate court reversed the trial court's judgment and remanded the case to the trial court for resentencing.

Case Number: D-2003-860
2006 OK CR 7; 130 P.3d 287; 2006 Okla. Crim. App. LEXIS 7
February 24, 2006, Decided

PROCEDURAL POSTURE: In a resentencing proceeding, defendant appealed a judgment of the District Court of Washita County (Oklahoma) that again sentenced him to death after he was convicted of kidnapping, first-degree rape, and first-degree murder, based on the jury's finding of four aggravating circumstances: a prior violent felony; especially heinous, atrocious or cruel murder committed to avoid arrest or prosecution; and defendant was a continuing threat.

OVERVIEW: Defendant challenged the jury's finding of the 4 aggravating circumstances and claimed the trial court erred by improperly denying his challenge for cause against prospective jurors; by disallowing two defense witnesses because his lawyers missed a discovery deadline; in its jury instructions on the issue of mitigation; and by precluding him from presenting evidence pertaining to "residual doubt" as a mitigating circumstance. The court held that defendant's due process rights were violated by the trial court's improper denial of his challenges for cause and its imposition of the overly harsh discovery sanction under Okla. Stat. tit. 22, § 2002(E) (Supp. 2002) where the missed discovery deadline was not willful. The court found that the trial court refused to dismiss three jurors for cause, which resulted in prejudice when defendant was forced, over objection, to keep an unacceptable juror. One of the jurors was not qualified to serve under Okla. Stat. tit. 38, § 28(B)(4) (2001) because he had strong ties to law enforcement and worked as a jailer; and all three jurors had shown actual bias and were not qualified to serve under Okla. Stat. tit. 22, § 659(2).

OUTCOME: The court reversed defendant's death sentence and remanded the case for a new sentencing proceeding consistent with the opinion.

Case Number: D-2003-363
2006 OK CR 8; 134 P.3d 816; 2006 Okla. Crim. App. LEXIS 17
April 24, 2006, Decided
SUBSEQUENT HISTORY: Post-conviction relief denied at, Motion denied by Browning v. State, 2006 OK CR 37, 2006 Okla. Crim. App. LEXIS 38 (Okla. Crim. App., 2006)US Supreme Court certiorari denied by Browning v. Okla., 2006 U.S. LEXIS 7668 (U.S., Oct. 10, 2006)PRIOR HISTORY: AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY. THE HONORABLE REBECCA BRETT NIGHTINGALE, DISTRICT JUDGE.

PROCEDURAL POSTURE: Defendant appealed a judgment of the District Court of Tulsa County (Oklahoma) convicting him of two counts of first-degree murder in violation of Okla. Stat. tit. 21, § 701.7 (2001), shooting with intent to kill in violation of Okla. Stat. tit. 21, § 652(A) (2001, first-degree arson in violation of Okla. Stat. tit. 21, § 1401, and robbery with firearms in violation of Okla. Stat. tit. 21, § 801 (2001), and sentencing him to death.

OVERVIEW: Defendant was convicted for killing his pregnant girlfriend's parents, attempting to kill his girlfriend, and setting the parents' home on fire. On appeal, the court held that the trial court did not err by admitting into evidence photographs of duct tape and cigarette lighter fluid found at his residence because the facts alleged in the search warrant affidavit set forth probable cause to show that the items were at that location. After listing the crimes and defendant's participation, the affiant stated that, the day after the crimes, he saw items that appeared to be stolen from the victims' residence through defendant's window. The court rejected defendant's claim that the trial court abused its discretion by failing to either grant a mistrial or remove for cause a juror who was inappropriately contacted by a member of the victims' family because defendant failed to preserve the claim by excusing the juror with a peremptory challenge and making a record of which remaining juror he would have excused. The court dismissed defendant's convictions for arson and robbery because it treated defendant's convictions as ones for felony murder, and dismissed the underlying felonies.

OUTCOME: Defendant's convictions for first-degree arson and robbery with a firearm were dismissed. Defendant's other convictions were affirmed.

2006 OK CR 9; 132 P.3d 3; 2006 Okla. Crim. App. LEXIS 10
March 23, 2006, Decided
CORE TERMS: verification, signature, printed, verify, denotesJUDGES: CHARLES S. CHAPEL, Presiding Judge, GARY L. LUMPKIN, Vice Presiding Judge, CHARLES A. JOHNSON, Judge, ARLENE JOHNSON, Judge, DAVID LEWIS, Judge.OPINION: ORDER ADOPTING AMENDMENT TO RULE 1.13 Pursuant to the provisions of Section of 1051(b) of Title 22 of the Oklahoma Statutes, we hereby revise, adopt, promulgate and republish portions of Rule 1.13 DEFINITIONS, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2005), by adding the new provision defining verification/Notary Public in Rule 1.13 L as follows: (strikethrough denotes deleted words, bold denotes added words)
L. Verification/Notary Public. For the purpose of these Rules when a Rule or Form requires that a document be verified before a Notary Public or [**4] other person authorized to administer oaths, it shall be sufficient if the person required to verify the document or form complies with the provisions of 12 O.S.Supp.2004, § 426, and verifies utilizing the statutory verification as follows: "I state under penalty of perjury under the laws of Oklahoma that the foregoing is true and correct. (Date and place) (Signature)" with the date [***2] and place printed on the line and the name printed under the signature.
This revision shall become effective on the date of this order.

Case Number: D-2002-534
2006 OK CR 10; 132 P.3d 1; 2006 Okla. Crim. App. LEXIS 9
March 14, 2006, Decided
PRIOR HISTORY: Jones v. State, 2006 OK CR 5, 128 P.3d 521, 2006 Okla. Crim. App. LEXIS 4 (Okla. Crim. App., 2006)

PROCEDURAL POSTURE: Defendant filed a petition for rehearing and a motion to recall the mandate after the court upheld his first-degree murder conviction and death sentence.

OVERVIEW: Defendant was convicted of first-degree murder and sentenced to death. After the court upheld his conviction and sentence, he filed a petition for rehearing and a motion to recall the mandate. The court found that the evidence supported the State's claim that defendant created a great risk of death to more than one person and posed a continuing threat to society. Further, while defendant made an observation about some of the second-stage evidence, he did not claim, much less attempt to demonstrate, that the introduction of that evidence unfairly prejudiced him. Had he actually developed such an argument, it would have failed. His criminal history was replete with the use and threat of violence. The continuing-threat aggravator was further supported by the nature of the instant offense: his unabashed willingness to use deadly force to obtain property. Any arguably nonviolent offenses did not improperly affect the jury's finding of the continuing threat aggravator, and the balance of the evidence amply supported it. Finally, trial counsel did not deny defendant the right to present a defense by not calling certain alibi witnesses.

OUTCOME: The court granted defendant's petition for rehearing. The court denied his motion to recall the mandate.

Case Number: S-2005-0632
2006 OK CR 11; 133 P.3d 339; 2006 Okla. Crim. App. LEXIS 12
April 6, 2006, Decided


PROCEDURAL POSTURE: Defendant was charged with, inter alia, attempted lewd or indecent proposal to a minor and attempted seclusion for the purpose of lewd molestation, Okla. Stat. tit. 21, § 1123(A)(1) and (3) (2001). A magistrate judge found that the State's evidence was not sufficient to show the crimes alleged were committed within Cleveland County, and the District Court of Cleveland County (Oklahoma) affirmed that ruling. The State appealed.

OVERVIEW: Two of the offenses with which defendant was charged were attempted lewd or indecent proposal to a minor and attempted seclusion for the purpose of lewd molestation. The record submitted to the appellate court arguably reflected that defendant formed the specific intent to commit those charged crimes and purposely engaged in conduct which would have constituted the crimes if the attendant circumstances were as defendant believed them to be. The act of driving to Cleveland County and entering the agreed upon meeting place was evidence of an overt act. Also, the sexual comments and requests to meet for sex were purported to have been generated from defendant's computer in Carter County. Thus, pursuant to Okla. Const. art. II, § 20 and Okla. Stat. tit. 22, § 124 (2001), venue could be proper in either Carter County or Cleveland County. Also, pursuant to Okla. Stat. tit. 22, § 125.1 (2004), because defendant's actions constituted a pattern of criminal activity culminating with his driving to Cleveland County, an argument could be made that venue in that county would be appropriate. Thus, the appellate court found the magistrate erred in dismissing the State's case.

OUTCOME: The appellate court granted the State's appeal, reversed the district court's order, and remanded the case to the district court for further proceedings.

Tuesday, November 07, 2006

Oklahoma Candidates for U.S. Congress - District 5 Independent

Matthew Horton Woodson

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Mary Fallin for Congress

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Dr. Hunter for U.S. Congress :: A Lifetime of Caring for Oklahomans

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Cole for U.S. Congress

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Patrick K. Miller (not an official website)

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Boren for Congress

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Bill Wortman for U.S. Congress

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Congressman John Sullivan - Oklahoma's First District

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Alan Gentges for U.S. Congress

Oklahoma Election Information November 7, 2006

All of the following websites and more can be found at the Oklahoma State Election Board website.
See unofficial results for all elections at General Election — November 7, 2006.
See complete ballot text of all State Questions at State Questions for General Election — November 7, 2006 (PDF).
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See the Offices to Be Filled.
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