Brink v. St., 2021 OK CR 1
Convictions for three counts of assault with a dangerous weapon for each of three victims and an additional count of using a vehicle to facilitate the discharge of a firearm violated 21 O.S.2021, § 11, because defendant is twice punished for the same act of shooting. If Legislature intended for drive-by shooting statute as an add-on punishment for gun violence, it could have said so, and did not. Under Burleson v. Saffle, 2002 OK CR 15, the State could have charged three counts of using a vehicle to facilitate discharge of a firearm (one for each victim), but here charged three counts of assault with a dangerous weapon and an additional count of drive-by shooting. While the State could charge either of these crimes as to each victim, it cannot convict the defendant of violating both laws with a single act of shooting. The verdicts are affirmed but the sentences are vacated. The court on remand can either dismiss either counts 1-3 or, alternatively, count 4, and re-sentence on the surviving count or counts.
Swanson v. St., 2021 OK CR 2
Affirmed drug court termination and acceleration of sentence. Sex offender living with 2,000 feet of a school was a new crime, and fifty other contract violations addressed by lesser sanctions showed Appellant was not responding to drug court treatment program and justified termination.
Bosse v. St., 2021 OK CR 3
Reversed and remanded murder convictions with instructions to dismiss, but mandate later by U.S. Supreme Court pending further certiorari review. Chickasaw Reservation was never disestablished under analysis required by McGirt v. Oklahoma. State court lacked subject matter jurisdiction to convict non-Indian petitioner for murders of Indian victims in Indian Country.
Hogner v. St., 2021 OK CR 4
Reversed and remanded assault, domestic abuse, and weapons convictions with instructions to dismiss. Appellant has some Indian blood and is a member of the Miami Tribe. Cherokee Reservation was never disestablished, applying McGirt v. Oklahoma. State court lacked subject matter jurisdiction to try and convict petitioner for major crimes in Indian Country.
Nolen v. St., 2021 OK CR 5
Affirmed murder conviction and death sentence and other crimes of assault in workplace rampage. Jury properly determined appellant was not intellectually disabled and not exempt from capital punishment under Atkins v. Virginia, 536 U.S. 304 (2002). The Court reviews such a verdict in the light most favorable to the State to determine if any rational fact-finder could reach the same conclusion. 21 O.S.2021, § 701.10b (I). A defendant must demonstrate intellectual disability by (1) significantly subaverage general intellectual functioning; (2) concurrent significant limitations in adaptive functioning; and (3) manifestation of the disability before age 18. 21 O.S.2021, § 701.10b©. The defendant has the burden of proof by a preponderance of the evidence. 21 O.S.2021, § 701.10b(F). Defense experts testified to IQ of 69, or in the range of 64-74. This was sufficient evidence of disability to warrant review of adaptive functioning and age of onset. Conflicting testimony about whether appellant had significant limitations in two or more of the enumerated adaptive skills areas, and whether the disability manifested before age 18, supported the jury’s verdict of non-disability. The trial court’s related order that appellant had not shown that he was incompetent to stand trial as a result of intellectual disability was also supported by the evidence.
Sizemore v. St., 2021 OK CR 6
Reversed and remanded conviction for murder and assaulting an officer with instructions to dismiss. Appellant has some Indian blood and is a recognized member of the Choctaw Tribe. Choctaw Reservation was never disestablished under analysis required by McGirt v. Oklahoma. State court lacked subject matter jurisdiction to try and convict petitioner for major crimes in Indian Country.
Spears v. St., 2021 OK CR 7
Reversed and remanded murder conviction with instructions to dismiss. Appellant has some Indian blood and is a recognized member of the Cherokee Tribe. Cherokee Reservation was never disestablished under analysis required by McGirt v. Oklahoma. State court lacked subject matter jurisdiction to try and convict petitioner for major crimes in Indian Country.
Grayson v. St., 2021 OK CR 8
Reversed and remanded murder and weapons possession convictions with instructions to dismiss. Appellant is Seminole who committed crimes on the Seminole reservation, which was never disestablished. The State of Oklahoma had no jurisdiction to prosecute an Indian for murder committed on the lands of the Seminole reservation.
Detar v. St., 2021 OK CR 9
Affirmed conviction for lewd or indecent proposals. Lewd or indecent proposals are crimes of “lewd molestation” within the meaning of that phrase as used in the “85% Rule” of 21 O.S.2021, § 13.1. Court leaves open the different question whether every violation of § 1123(A) is “lewd molestation” as used in 21 O.S.2021, § 51.1a, providing mandatory life without parole for repeat lewd molestations, having held in unpublished cases that lewd acts, but not proposals, violating § 1123(A) are “lewd molestation” for purposes of § 51.1a. See in this regard, Lewis, J., concurring and dissenting in part.
Cole v. St., 2021 OK CR 10 Reversed and remanded murder conviction with instructions to dismiss. Infant victim of homicide had some Indian blood and was a recognized member of the Cherokee Tribe. Victim’s application for enrollment in Cherokee Nation was pending at the time when petitioner murdered her and was approved six months after her death. Cherokee Reservation was never disestablished under analysis required by McGirt v. Oklahoma. State court lacked subject matter jurisdiction to try and convict petitioner for major crimes in Indian Country. Issuance of mandate later stayed indefinitely in light of stay granted by U.S. Supreme Court in Oklahoma v. Bosse and Court of Criminal Appeals order directing supplemental briefing on retroactivity of McGirt in St. ex rel. Matloff v. Wallace, 2021 OK CR 15.
Ryder v. St., 2021 OK CR 11
Reversed and remanded murder conviction with instructions to dismiss. Victims had some Indian blood and were members of the Choctaw Tribe. Choctaw Reservation was never disestablished under analysis of McGirt v. Oklahoma. State court lacked subject matter jurisdiction to convict petitioner for major crimes in Indian Country. Issuance of mandate stayed indefinitely in light of stay granted by Supreme Court in Oklahoma v. Bosse and order directing supplemental briefing on retroactivity of McGirt in St. ex rel. Matloff v. Wallace, 2021 OK CR 15.
Bench v. St., 2021 OK CR 12
Reversed and remanded murder conviction with instructions to dismiss. Appellant has some Indian blood and is a recognized member of the Choctaw Tribe. Chickasaw Reservation was never disestablished, applying McGirt v. Oklahoma. State court lacked jurisdiction to convict petitioner for major crimes in Indian Country. Issuance of mandate later stayed indefinitely in light of stay granted by Supreme Court in Oklahoma v. Bosse, and Court of Criminal Appeals order directing briefing on retroactivity of McGirt in St. ex rel. Matloff v. Wallace, 2021 OK CR 15.
St. v. Allen 2021 OK CR 13, 2021 OK CR 14
Reversed order quashing charges of child neglect and conspiracy, alleging parents failed to protect an unborn child from drug exposure and conspired to commit neglect. The trial court held a fetus was not a child under the neglect statute. The Court held in St. v. Green, 2020 OK CR 18, that § 843.5(C) protects an unborn child from neglect. In Green, a stillborn baby died from mother’s ingestion of methamphetamine. The baby here lived after similar exposure. From the language and purpose of the neglect statute, a viable unborn child is a child under § 843.5©, and may be victim of neglect from defendants who subject the child to their use of drugs.
St. ex rel. Matloff v. Wallace, 2021 OK CR 15
Granted stay of proceedings and directing supplemental briefs on whether, in light of Ferrell v. St., 1995 OK CR 54, U.S. v. Cuch, 79 F.3d 987 (10th Cir. 1996), Edwards v. Vannoy (No. 19–5807), 593 U.S. __ (May 17, 2021), and related cases, recent judicial recognition of federal criminal jurisdiction in the Creek and Choctaw Reservations announced in McGirt and Sizemore should apply retroactively to void a state conviction that was final when McGirt and Sizemore were announced?
St. v. Roberson, 2021 OK CR 16
Reversed pre-trial order suppressing evidence in trafficking and drug possession case. In probable cause analysis, despite recent legalization of medical marijuana, marijuana possession remains a crime in other circumstances and thus, its odor or presence is evidence of criminal activity. Driver’s admission that marijuana was in vehicle gave probable cause for warrantless search under automobile exception to 4th Amendment Warrant Clause. A medical marijuana license may provide a defense to a charge of possession, but does not affect the determination of probable cause. The trial court abused its discretion in granting the motion to suppress.
Parker v. St., 2021 OK CR 17
Affirmed first degree manslaughter conviction. Defendant’s familial descent from Cherokee Freedmen and alleged eligibility for Cherokee Nation membership did not make him an “Indian” for purposes of jurisdictional challenge under McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). A person is “Indian” if the person has “some Indian blood” and is “recognized as an Indian by a tribe or by the federal government.” Tribal identity was not part of defendant’s upbringing and he was not recognized as Indian by the tribe or federal government.
Fuentes v. St., 2021 OK CR 18
Affirmed aggravated trafficking conviction. Under the Fellow Officer Rule or Collective Knowledge Doctrine, which imputes reasonable suspicion or probable cause possessed by one officer or group to another officer who makes a search or seizure, detective’s reasonable suspicion to believe defendant was trafficking drugs based upon information from two known reliable informants, was vertically imputed to officer who made traffic stop of defendant at detective’s request; and justified extending the stop for a reasonable time to permit drug dog’s walk around the vehicle, which led to discovery of drugs.
Williams v. St., 2021 OK CR 19
Affirmed convictions for lewd or indecent acts. Plain error occurred when trial court omitted instruction that jury must find beyond a reasonable doubt the child was under the age of 12, a necessary factual element for the enhanced 25-year minimum sentence. The error was harmless beyond a reasonable doubt, as fact that victim was under age 12 was uncontested and shown by overwhelming evidence. A properly instructed jury still would have found the defendant guilty.
A.M.C. v. St., 2021 OK CR 20
Affirmed delinquency adjudication for possession of firearm after former delinquency. Custodial interrogation of seventeen year-old juvenile about a recent murder, that resulted his confession to firearms offense, was properly admitted at trial. Though 10A O.S.2021, § 2-2-301, prohibits custodial juvenile interrogation without the presence of a parent, guardian, or lawyer, another statute, 10A O.S.2021, § 2-5-205, provides that persons seventeen years of age, when charged with first degree murder, are accountable as adults and not subject to the Youthful Offender Act or Juvenile Code. The Court held that this custodial interrogation of a seventeen year old about a first degree murder was not prohibited by Section 2-2-301, but was governed by the general requirements of Miranda and voluntariness, just as any other adult custodial interrogation.
St. ex rel. Matloff v. Wallace, 2021 OK CR 21
Granted writ prohibiting enforcement of order granting post-conviction relief. Petitioner’s second degree murder conviction was final in 2012, long before McGirt v. Oklahoma, 140 S.Ct. 2452 (2020) held Oklahoma had no jurisdiction of major crimes committed by Indians in Indian Country. McGirt’s jurisdiction holding was a new procedural rule that would not be applied retroactively in state-post-conviction proceeding to void a conviction that was final when McGirt was announced on July 9, 2020. Trial court’s order granting post-conviction relief was unauthorized by law, and there was no adequate remedy where regular appeal time ran after State timely sought writ of prohibition and appellate court granted request for a stay.
St. v. Lewis, 2021 OK CR 22
Reversed pre-trial order suppressing evidence in trafficking and firearm possession case. Initial traffic stop was uncontested. Deputy could reasonably request criminal background checks on all three occupants in vehicle after initial stop, where the request was processed within about eight minutes from the initial stop. Deputy had reasonable suspicion to prolong the stop based on objective facts, including travel from one notorious drug-related location to another, drug-related criminal histories of all three vehicle occupants, and apparent nervousness of at least two occupants. Under totality of the circumstances, these facts provided a particularized and objective basis for suspecting legal wrongdoing.
Bosse v. St., 2021 OK CR 23
Vacated previous order granting capital post-conviction relief and withdrew opinion in Bosse v. State, 2021 OK CR 3, in light of St. ex rel. Matloff v. Wallace, 2021 OK CR 21.
Bench v. St., 2021 OK CR 24
Vacated previous order granting capital post-conviction relief and withdrew opinion in Bench v. State, 2021 OK CR 12, in light of St. ex rel. Matloff v. Wallace, 2021 OK CR 21.
Ryder v. St., 2021 OK CR 25
Vacated previous order granting capital post-conviction relief and withdrew opinion in Ryder v. State, 2021 OK CR 11, in light of St. ex rel. Matloff v. Wallace, 2021 OK CR 21.
Cole v. St., 2021 OK CR 26 Vacated previous order granting capital post-conviction relief and withdrew opinion in Bosse v. State, 2021 OK CR 10, in light of St. ex rel. Matloff v. Wallace, 2021 OK CR 21.
Roth v. St., 2021 OK CR 27
Reversed and remanded with instructions to dismiss convictions for manslaughter and leaving the scene of accident. The victim had Cherokee blood and was a registered member of Cherokee Nation at the time of his death, and the crimes occurred within Creek Reservation which, under McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), was never disestablished by Congress and remains Indian Country under exclusive federal criminal jurisdiction under the Major Crimes Act and Indian Country Crimes Act. 18 U.S.C. §§ 1151-1153. The State has no “concurrent” jurisdiction to prosecute these crimes by a non-Indian defendant. Congress has authorized States to assume criminal jurisdiction over Indian Country in limited circumstances, but Oklahoma has never complied with the requirements to assume jurisdiction in Indian Country.
Cole v. St., 2021 OK CR 28
Denied capital post-conviction relief on sole proposition that Oklahoma lacked jurisdiction to prosecute murder of Indian child. Child was Cherokee Indian and murder occurred in Cherokee Nation, recognized as Indian Country in light of McGirt v. Oklahoma. Petitioner’s conviction was final when McGirt was decided, and state post-conviction relief is barred by non-retroactivity of McGirt under State ex rel. Matloff v. Wallace, 2021 OK CR 21.
White v. St., 2021 OK CR 29
Affirmed denial of post-conviction relief. Petitioner’s sentence of life without parole for murder committed at age seventeen did not violate the Eighth Amendment’s ban on mandatory life without parole sentence for juvenile murderers in Miller v. Alabama, 567 U.S. 460 (2012). Trial court had discretion to impose a life sentence in light of Petitioner’s youth. Petitioner’s capital sentencing trial allowed the jury to consider youth and attendant characteristics as contemplated by Miller, as well as other mitigating background evidence, and affording him the individualized sentencing required for juvenile LWOP in Miller. Jones v. Mississippi, 141 S. Ct. 1307 (2021), clarified that Miller (and Montgomery v. Louisiana, 577 U.S. 190 (2016) required only that sentencer consider youth and attendant characteristics before imposing life-without-parole. No separate finding of permanent incorrigibility or on-the-record sentencing explanation is needed. In future trials or blind pleas, the State must file notice to juvenile stating in bold type that it will seek life without parole; the parties shall be afforded full discovery; bifurcated jury sentencing is required, unless jury is waived; each party can present evidence to support its position on punishment; sentencer must consider defendant’s youth and youth-related characteristics, as well as any other aggravating and mitigating circumstances, along with the nature of the crime committed, in exercising its discretion to impose sentence. In cases of re-sentencing because of Miller error, Jones requires no jury at resentencing. and previous holdings to the contrary in Johnson v. Elliott, 2019 OK CR 9, ¶ 10, 1091, certiorari granted and judgment vacated by Oklahoma v. Johnson, 2021 WL 1725141 (U.S. May 3, 2021) and Stevens v. St. 2018 OK CR 11, ¶ 34, are overruled. Right to jury at re-sentencing is governed solely by 22 O.S.2021, §§ 812.1 and 929.
Bosse v. St., 2021 OK CR 30
Denied capital post-conviction relief. Petitioner’s convictions were final when McGirt v. Oklahoma was decided. Post-conviction relief on his claim that Oklahoma lacked jurisdiction to prosecute murders of Chickasaw Indian woman and her children within the Chickasaw Nation by this non-Indian defendant is barred by non-retroactivity under State ex rel. Matloff v. Wallace, 2021 OK CR 21. Allegations that “dysfunctional” trial attorneys failed to conduct reasonable mitigation investigation, adequately prepare, and utilize experts, and related claims against appellate counsel, are barred, as the facts were ascertainable with reasonable diligence before filing previous post-conviction application. Even if proven, allegations do not establish clear and convincing evidence that, but for alleged errors, no reasonable fact finder would have rendered the penalty of death.
Johnson v. Elliott, 2021 OK CR 31
Denied writ of prohibition. On remand from Supreme Court for reconsideration in light of Jones v. Mississippi, 141 S.Ct. 1307 (2021). Trial court denied belated request for jury re-sentencing, finding Petitioner waived jury when he originally entered blind guilty plea. Jones v. Mississippi held that the Sixth Amendment does not require jury sentencing in juvenile LWOP cases. Because Petitioner ignored statutory procedure to demand jury on re-sentencing, trial court properly denied request for jury based upon waiver.
Shaw v. St., 2021 OK CR 33
Affirmed convictions for armed robbery and kidnapping for extortion. Prosecutor’s repeated explicit references to defendant as a liar was improper argument, but error was harmless where guilt was shown by overwhelming evidence; the jury acquitted on one count; and imposed minimum sentences on other counts. Evidence that Appellant was wearing an ankle monitor, and removed it shortly after the crimes, was not improper evidence of other crimes, wrongs, or bad acts under 12 O.S.2021, § 2404(B). Wearing an ankle monitor is not other crimes evidence, but is related to criminal behavior and carries a stigma, and must be admissible as other crimes evidence. It may also be admissible as res gestae of the crime. Defendant’s wearing and removal of the ankle monitor completed the story of the case, because its data corroborated and pinpointed time and location of the defendant’s and victim’s movements. Removing the monitor indicated consciousness of guilt and corroborated evidence that defendant had a knife; its recovery near other stolen items corroborated the accusation that defendant stole those items.
Detar v. St., 2021 OK CR 34 Vacated and withdrew opinion in Detar v. State, 2021 OK CR 9 for reconsideration of direct appeal claim that State lacked jurisdiction under McGirt v. Oklahoma.
Simms v. St., 2021 OK CR 35
Reversed and remanded for a new trial. Defendant cannot be held liable as a principal to the underlying felony of drug distribution, and thus cannot be convicted of felony murder during, or a result of, crime of drug distribution, because he was a buyer or pretended buyer of marijuana from the seller and seller’s companion, who were killed by buyer or buyer’s accomplice during a drug deal. Defendant remains. Jeopardy on that charge did not terminate in conviction or acquittal. Verdicts for each count separately listed both the drug distribution-murder and robbery-murder theories of liability. The jury checked “guilty” of distribution-murder on both verdicts and left the robbery-murder option blank. Their silence does not imply an acquittal on the robbery-murder charge that would bar re-trial as double jeopardy.
Ryder v. St., 2021 OK CR 36
Denied capital post-conviction relief on sole proposition that Oklahoma lacked jurisdiction to prosecute murder of Choctaw tribal members within the Choctaw Nation, recognized as Indian Country in light of McGirt v. Oklahoma. Petitioner’s conviction was final when McGirt was decided, and state post-conviction relief is barred by non-retroactivity of McGirt under State ex rel. Matloff v. Wallace, 2021 OK CR 21.
St. v. Lawhorn, 2021 OK CR 37
Affirmed dismissal of charge of lewd or indecent acts. Defendant filed a motion to dismiss for lack of jurisdiction under the Major Crimes Act and McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). The trial court found that defendant is an Indian and that the crime occurred in within the historic boundaries of the Quapaw Reservation. On review, the Court finds that Congress by treaty established a Quapaw Nation Reservation in Oklahoma. The State admits it has no evidence that Congress ever disestablished the reservation, which thus remains Indian Country. McGirt requires the Court to hold that Oklahoma is without jurisdiction to prosecute the defendant.
McClain v. St., 2021 OK CR 38
Reversed convictions for rape by instrumentation, lewds acts with a child under 16, and engaging in a pattern of crimes, with instructions to dismiss. After filing briefs on direct appeal, defendant filed a motion with Court of Criminal Appeals arguing that Oklahoma lacked jurisdiction to try him under McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). The Court remanded for an evidentiary hearing to determine whether defendant has some Indian Blood, and whether the crimes were committed in Indian Country. On review, defendant showed he has some Choctaw Indian blood of the Choctaw/Creek Tribes and that the crime occurred within the Chickasaw Nation. The Court again rejects Oklahoma’s argument that it has concurrent jurisdiction of these crimes committed by an Indian against a non-Indian. See Roth v. St., 2021 OK CR 27.
Bench v. St., 2021 OK CR 39
Denied capital post-conviction relief on sole proposition that Oklahoma lacked jurisdiction to prosecute murder of Choctaw tribal member within the Chickasaw Nation, recognized as Indian Country in light of McGirt v. Oklahoma. Petitioner’s conviction was final when McGirt was decided, and state post-conviction relief is barred by non-retroactivity of McGirt under State ex rel. Matloff v. Wallace, 2021 OK CR 21.
Martinez v. State, 2021 OK CR 40
Denied capital post-conviction relief on claim that Oklahoma lacked jurisdiction to prosecute murder committed by Comanche Indian in Comanche County, within historic boundaries of Kiowa Comanche Apache Reservation. Petitioner is Comanche Indian beyond any doubt. However, several cases have held that the Act of June 6, 1900, disestablished the Kiowa Comanche Apache Reservation. Tooisgah v. U.S., 186 F.2d 93, 97 (10th Cir. 1950); Application of Yates, 1960 OK CR 8, ¶¶ 3-4. The lands in question here were no longer within an Indian reservation after June 6, 1900, and thus no longer Indian Country. Even if Court concluded otherwise, Petitioner’s conviction and sentence were final before the Supreme Court’s decision in McGirt, and relief would be barred by non-retroactivity of McGirt under State ex rel. Matloff v. Wallace.