Smiley v. St., 2017 OK CR 2
Affirmed revocation of suspended sentence. Arraignment of probationer on application to revoke, and waiver of twenty-day hearing requirement and entry of not guilty plea at arraignment, was sufficient. Second waiver of the twenty-day rule upon filing of an amended application to revoke is unnecessary.
St. v. Keefe, 2017 OK CR 3
Reversed order suppressing evidence based on traffic stop made outside officer’s jurisdiction of a suspected drunk driver, finding it a valid citizen’s arrest under 22 O.S.2021, § 202 and St. v. Kieffer-Roden, 2009 OK CR 18. An officer outside of her jurisdiction may make a citizen’s arrest, including use of emergency lights and other actions. Drunk driver’s threat to other motorists and the officer’s use of emergency equipment to make the stop under color of law was justified.
Hausle v. St., 2017 OK CR 5
Denied State’s motion to dismiss separate appeals seeking to withdraw petitioner’s guilty plea and an order accelerating deferred judgment. Following Gonseth v. St., 1994 OK CR 9, those who choose to appeal both acceleration of deferred judgment and denial of application to withdraw plea shall file a separate petition in error and petition for writ of certiorari.
Rousch v. St., 2017 OK CR 7
Affirmed convictions for obscene and threatening phone calls. Three convictions for making obscene or threatening phone calls did not violate double jeopardy. Distinct acts of the same offense, carried out against the same victim, will not violate double jeopardy where the acts are separate in time. Each of the counts here involved separate calls with obscene comments or requests made to the victim.
Duclos v. St., 2017 OK CR 8
Preliminary magistrate later presiding at trial, without consent of the defendant, was a plain and obvious error in violation of 22 O.S.2021, § 576, but is not structural and can be harmless. Appellant made no effort to show prejudice, and error did not seriously affect fairness, integrity, or public reputation of the proceedings.
Bosse v. St., 2017 OK CR 10
Affirmed murder conviction and death sentence. Victims’ recommendations of a death sentence were harmless error under Payne v. Tennessee under a four factor test of (1) the quantity and nature of the recommendations, (2) presence of limiting instructions regarding victim impact testimony, (3) certainty of guilt, and (4) the overwhelming evidence supporting aggravating circumstances.
Frederick v. St., 2017 OK CR 12, corrected, 2017 OK CR 18
Affirmed murder conviction and death sentence, finding victim’s dying declaration identifying the defendant as her attacker did not violate confrontation rights. Police found 85 year-old deaf victim, visibly injured. A police officer asked her granddaughter to ask her grandmother whether she was in pain and “who did it?” The victim responded by sign identifying the appellant, and gave same response to an EMT. Primary purpose of the questioning was to meet public emergency by identifying suspect in this assault and getting medical assistance for the victim.
Pershall v. St., 2017 OK CR 13
Dismissed post-conviction appeal after district court recommended an appeal out of time, and petitioner then failed to timely file notice of appeal of the original order denying relief, as required by Rule 5.2, and showed no good cause for this omission.
Ashton v. St., 2017 OK CR 15
Defendant’s girlfriend’s pre-trial refusal to testify under 5th Amendment and unavailability as a witness did not deny defendant’s right to present a defense. The right is not absolute, and there was hazard of witness’s self-incrimination as as accessory to murder for driving defendant from the scene. Because the trial court possesses no independent authority to grant immunity, she could not be compelled to testify.
Baird v. St., 2017 OK CR 16
Defendant is ordinarily bound by counsel’s request for mistrial. Double jeopardy does not bar retrial where the court ordered mistrial against defendant’s wishes. Personal consent to a mistrial is not necessary, and counsel’s decision to seek mistrial was binding.
Witherow v. St., 2017 OK CR 17, corrected, 2017 OK CR 20
Trial court properly instructed jury on mandatory sentence of life without parole for drug trafficker with two prior, non-trafficking drug felonies. Law passed after crime was committed changed sentence range to 20 years to life without parole. Without retrospective indication, law is prospective from effective date.
Sanchez v. St., 2017 OK CR 22
Successive capital post-conviction petitioner’s evidence of disparity in the odds of a death sentence based on the race and/or gender of the defendant and/or victim, contained in Report of Death Penalty Review Comm’n, was factually available for earlier application and could have been ascertained through reasonable diligence. Evidence did not show that but for this disparity, no reasonable trier of fact would have imposed death.
Willis v. St., 2017 OK CR 23
Affirmed conviction for offering and/or soliciting sex with a minor by use of technology, 21 O.S.2021, § 1040.13a, where defendant repeatedly offered to exchange girl in a cell phone photo for sexual purposes for $600. Preliminary hearing transcript on earlier charge of false pretenses was admissible when primary witness failed to appear at trial, and did not violate the right to confrontation.
St. v. Kistler, 2017 OK CR 24
Granted writ of prohibition against trial court’s order dismissing either first degree burglary or robbery with a firearm charge as multiple punishments violating 21 O.S.2021, § 11(A). Facts showed that initial burglary, and subsequent robbery with firearm of occupant inside the house, were separate and distinct acts.
St. v. Gilchrist, 2017 OK CR 25
Reversed order quashing and dismissing 12 felony counts of animal cruelty where evidence showed defendant deprived 13 dogs of food, water, and shelter on rural property. 21 O.S.2021, § 1685 prohibits abuse or neglect of “any animal,” and seeks to protect individual animals from abuse or neglect.
Barnes v. St., 2017 OK CR 26
Prosecutor’s closing argument that defendant had forced victim to “relive what happened to her” and jurors to “come in and listen to this type of evidence” just so defendant “could tell a story that if your kid started telling you, you would say, stop it. You would say, stop it, that’s enough,” violated 6th Amendment right to jury trial. Evidence of guilt was overwhelming, but argument probably contributed to life without parole sentence, and required remand.