Thursday, January 04, 2007

2006 Oklahoma Court of Criminal Appeals Decisions 1-11

RICARDO VIRGO BLONNER, Appellant -vs- STATE OF OKLAHOMA, Appellee; THE STATE OF OKLAHOMA, Plaintiff vs. JOHN DOE, Defendant.
Case Number: O-2004-1175
COURT OF CRIMINAL APPEALS OF OKLAHOMA
2006 OK CR 1; 127 P.3d 1135; 2006 Okla. Crim. App. LEXIS 1
January 5, 2006, Decided

CASE SUMMARY

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
COURT OF CRIMINAL APPEALS OF OKLAHOMA
2006 OK CR 2; 127 P.3d 1150; 2006 Okla. Crim. App. LEXIS 2
January 10, 2006, Decided
SUBSEQUENT HISTORY: US Supreme Court certiorari denied by Okla. v. Golden, 2006 U.S. LEXIS 4949 (U.S., June 26, 2006)PRIOR HISTORY: AN APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY. THE HONORABLE JOHN GARDNER, ASSOCIATE DISTRICT JUDGE.
CASE SUMMARY

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.

PATRICK DWAYNE MURPHY, Appellant -vs- STATE OF OKLAHOMA, Appellee
Case Number: PCD-2004-321
COURT OF CRIMINAL APPEALS OF OKLAHOMA
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.

ANTHONY WAYNE JACOBS, Appellant -vs- STATE OF OKLAHOMA, Appellee
Case Number: F-2005-104
COURT OF CRIMINAL APPEALS OF OKLAHOMA
2006 OK CR 4; 128 P.3d 1085; 2006 Okla. Crim. App. LEXIS 5
February 1, 2006, Decided

CASE SUMMARY

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.

JULIUS DARIUS JONES, Appellant -vs- STATE OF OKLAHOMA, Appellee
Case Number: D-2002-534
COURT OF CRIMINAL APPEALS OF OKLAHOMA
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)
CASE SUMMARY

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.

ANDERSON v. STATE
Case Number: F-2004-882
COURT OF CRIMINAL APPEALS OF OKLAHOMA
2006 OK CR 6; 130 P.3d 273; 2006 Okla. Crim. App. LEXIS 6
February 22, 2006, Decided

CASE SUMMARY

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.

ROJEM v. STATE
Case Number: D-2003-860
COURT OF CRIMINAL APPEALS OF OKLAHOMA
2006 OK CR 7; 130 P.3d 287; 2006 Okla. Crim. App. LEXIS 7
February 24, 2006, Decided
PRIOR HISTORY: AN APPEAL FROM THE DISTRICT COURT OF WASHITA COUNTY. THE HONORABLE CHARLES L. GOODWIN, DISTRICT JUDGE.Rojem v. State, 1988 OK CR 57, 753 P.2d 359, 1988 Okla. Crim. App. LEXIS 55 (Okla. Crim. App., 1988).
CASE SUMMARY

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.


MICHAEL ALLEN BROWNING, Appellant -vs- STATE OF OKLAHOMA, Appellee
Case Number: D-2003-363
COURT OF CRIMINAL APPEALS OF OKLAHOMA
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.
CASE SUMMARY

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.

IN RE: AMENDMENT OF THE RULES OF THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA
[NO NUMBER IN ORIGINAL]
COURT OF CRIMINAL APPEALS OF OKLAHOMA
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.


JONES v. STATE
Case Number: D-2002-534
COURT OF CRIMINAL APPEALS OF OKLAHOMA
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)
CASE SUMMARY

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.

STATE OF OKLAHOMA, Appellant -vs- BRIAN KEITH FLETCHER, Appellee
Case Number: S-2005-0632
COURT OF CRIMINAL APPEALS OF OKLAHOMA
2006 OK CR 11; 133 P.3d 339; 2006 Okla. Crim. App. LEXIS 12
April 6, 2006, Decided

CASE SUMMARY

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.

10 Comments:

At 5:15 PM, Anonymous Anonymous said...

This was released today.

United Victims Group Calls on Legislature for an Impeachment Investigation of Oklahoma Criminal Court of Appeals Judges




Oklahoma Criminal Court of Appeals judges, Charles Chapel, Charles Johnson and David Lewis may have violated their Oath of Office when ruling on Fears v. State, Case No. F-2004-1279, January 26, 2007. United Victims group seeks support from the Oklahoma Legislature to launch an impeachment investigation.

Sallisaw, OK (PRWEB) February 15, 2007 -- Daniel Hawke Fears was convicted in September 23, 2004 for the killing of two women, Patsy Wells and Reba Spangler and shooting several others during a shooting spree covering 20 miles of U.S. 64 from Sallisaw to Roland Oklahoma. A Sequoyah County jury convicted Fears to two terms of life imprisonment without the possibility of parole; nine terms of life imprisonment; and 120 years.

On July 7, 2006, by unpublished Opinion the Court reversed and remanded the case to the District Court of Sequoyah County for entry of a verdict of not guilty by reason of insanity. Attorney General, Drew Edmondson filed a Petition for Rehearing on July 19, 2006. The Oklahoma Criminal Court of Appeals issued an order staying the mandate on July 20, 2006. On January 26, 2007 the Court denied the Petition for Rehearing and ordered Fears to a mental facility in Vinita, Oklahoma. The jury in this case was denied its decision and essentially ruled incompetent.

United Victims group is asking the Legislature to investigate possible Constitutional violations in the appeal of Fears v. State. under Article 8, Section 1 & 4 of the Constitution of Oklahoma. Court members may have violated their oath, consciously disregarded state law and incorrectly cited the "Oklahoma Truth in Sentencing Act" as law that was repealed July 1, 1999 without ever taking effect. See 1998 Okla. Sess. Laws, 1st Ex.Sess., ch. 2 § 23 (eff. July 1, 1999) and, 1999 Okla. Sess. Laws, 1st Ex. Sess., ch. 5 § 452 (eff. July 1, 1999)

Justice Gary Lumpkin wrote in his dissent "The most egregious violation of our jurisprudence is in the Court's usurping of the authority of the jury verdict in this case". Further he stated, "Rather than being bound by the decisions of fact finders at the trial court, the Court embraces the trump card of de novo review to allow it to do what it would have done if it had been a fact finder. The problem is this is an appellate court subject to limitations on its authority, not "philosopher kings".

Justice Lumpkin continues with, "If the Court were true to its oath and jurisprudence, the proper procedure would be to remand the case to the trial court for retrial under proper instruction as to the law, now that it has decided a change in the law is being made".

United Victims calls on the Oklahoma House of Representatives to create a House Resolution to launch an impeachment investigation and present it to the Oklahoma Senate. As stated in the Oklahoma Constitution, "All political power is inherent in the people; & government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it."

For additional information, contact Roger Nix or visit www.unitedvictims.com

About United Victims:

United Victims is an independent organization of victim's involved in the shooting spree of Daniel Hawke Fears in October of 2002.

Contact:

Roger Nix
United Victims
256-272-8448
http://www.unitedvictims.com/

###

 
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