Cash v. St., 2024 OK CR 1
Affirmed revocation of fifteen year sentences in full based on finding of technical violation of leaving the state and non technical violations of failing to report and committing new crime. Transcript of Arkansas revocation hearing showing proof of new crime was hearsay but properly admitted. Hampton v. St., 2009 OK CR 4 disapproved of revocations based entirely on hearsay which involved complete denial of confrontation. Relaxed standards of confrontation at revocation would permit introduction of letters, affidavits, and other material inadmissible at trial. Appellant had opportunity to cross-examine witnesses in the prior hearing.
St. v. Bradford, 2024 OK CR 3
Affirmed order dismissing prosecution for second degree murder or first degree manslaughter based on Stand Your Ground immunity. Defendant killed his half-brother when defendant and his sister were leaving a residence in defendant’s vehicle. Defendant and the brother had an altercation. Defendant pulled a gun believing the brother was armed with a knife. Defendant and his sister decided to leave the residence but as they pulled from driveway onto public road they heard shots and believed the brother was shooting at them. Defendant left the vehicle, saw the brother standing in an apparent shooting position, and returned fire in defense of himself and his sister, whom he believed already had been struck by gunfire. Defendant drove to the police station and surrendered. Trial court properly found the defendant was not engaged in illegal activity, was in a place where he had a right to be, and reasonably believed deadly force was necessary to defend himself and his sister. The trial court’s ruling was not an abuse of discretion.
St. v. Fuller, 2024 OK CR 4
Affirmed dismissal of felony DUI and traffic charges against Indian defendant in Indian County based on McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020). Trial court properly found Wyandotte Reservation was never disestablished by Congress under facts identical to the establishment and continued existence of Ottawa and Peoria Reservations recognized as Indian County in St. v. Brester, 2023 OK CR 10. In cases under the General Crimes Act, 18 U.S.C. § 1152, jurisdictional analysis does not end upon finding that crime was committed in Indian country. Castro-Huerta v. Oklahoma clarified that Indian country unless preempted. Reviewing court applies Bracker balancing of tribal, state, and federal interests to determine whether state jurisdiction would infringe tribal self-government. Whether State can prosecute Indians for GCA crimes in Indian Country is not resolved by Castro-Huerta, and State abandoned the argument in this appeal.
Haliburton v. St., 2024 OK CR 7
Affirming lewd acts conviction. Defendant was not denied effective counsel by failure to file motion to quash for insufficient evidence at preliminary hearing that victim was under age sixteen. Since successful motion to quash for insufficient evidence would not prohibit refiling of information under extant statutes and cases, Appellant cannot show that failure to file motion to quash impacted the outcome of his case. Sufficient evidence was presented at trial and Appellant cannot show Strickland prejudice.
McCauley v. St., 2024 OK CR 8
Affirmed first degree manslaughter conviction. Osage Reservation was disestablished by Congress according to 10th Circuit’s decision in Osage Nation v. Irby, 597 F.3d 1117, 1127 (10th Cir. 2010). The earlier decision is consistent with McGirt v. Oklahoma and will not be questioned in this appeal. Prosecutor’s brief viewing of jury deliberations recorded by a security camera and displayed on a remote television screen did not prejudice the defendant or require reversal. Violations of the privacy of deliberations are subject to a rebuttable presumption of prejudice which State rebutted here. Video had no accompanying audio. Prosecutor admitted to the court viewing the screen on the way to the bathroom for thirty seconds and derived no particular information from the images. Court ordered the camera disabled at defense request but denied motion for mistrial. The violation of statutory privacy of deliberations is not structural error warranting automatic reversal. Camera was a passive presence and had no direct impact on deliberations. Jury was not aware of the camera so it had no chilling effect on deliberations. Prosecutors gained no advantage or useful knowledge from brief exposure to the video, which was preserved for court’s review on appeal.
Washburne v. St., 2024 OK CR 9
Affirmed conviction for lewd or indecent proposal. Any error in trial court’s instruction that jury’s sentence was a mere recommendation was harmless, because jury was given proper range of punishment, counsel agreed to the instruction as given, and trial court imposed sentence assessed by the jury. Instruction to jury that Appellant would serve 85% of the sentence before he was eligible for parole was correct. A lewd or indecent proposal in violation of 21 O.S.Supp.2018, § 1123(A)(1), is a crime of lewd molestation subject to the 85% Rule of 21 O.S.Supp.2015, § 13.1. Lewd molestation is not defined in the Oklahoma Statutes.Proscribed conduct involving children appears in a single section without no attempt to differentiate between physical or verbal acts. The Legislature intended to include all sex crimes against children in the 85% Rule.
Posey v. St., 2024 OK CR 10
Affirmed murder conviction and death penalty rejecting numerous alleged errors.
Jackson v. St., 2024 OK CR 11
Affirmed racketeering and related conviction over several alleged errors. Trial court properly rejected request for lesser included offense instruction on gang-related activity in violation of 21 O.S.2011, § 856.3.A lesser included crime is one whose elements are necessarily subsumed within the greater offense. Section 856.3 is effectively an enhancement crime, adding a five year term to any felony committed for the forbidden purpose of gang membership or association. The essential element thus assumes the commission or attempt of the “greater” crime as a necessary element and was not intended as a lesser offense.
Swager v. St., 2024 OK CR 12
Affirmed child sexual abuse convictions. On plain error review, Appellant’s confessions were voluntary despite investigator’s use of common interrogation tactics, such as saying he believed Appellant was a good person; that he wanted to help Appellant show the DA and jury that he was not evil and calculating; that though he made no promises, he would tell the DA that Appellant was genuine and maybe needed some help; and that he would act as a buffer between Appellant and the judicial system. The Court found no evidence of exploitation or overreaching or that he suffered a mental disability that rendered his confession involuntary. Victim’s mother’s statement at sentencing that Appellant had also physically and emotionally abused their three sons statements went beyond victim impact evidence, but even if the trial court considered these allegations, the sentence indicated no unreasonable emotional response. The trial court suspended a significant portion of one sentence and granted credit for time served, which shows no prejudice accrued from the victim impact statement.
Dominguez v. St., 2024 OK CR 13
Affirmed revocation of three year suspended sentence in full for failing to pay DA probation fees and complete Batterer’s Intervention Program. On plain error review, 22 O.S.2021, § 991b limits revocation based upon a technical violation to ≤ 6 months for first technical and ≤ 5 years for second or subsequent revocation. But 21 O.S.2021, § 644(G) provides that failure to attend court-ordered domestic abuse counseling or treatment allows revocation of all or any part of a suspended sentence, deferred sentence, or probation. Section 644 is a specific statute mandating court-ordered domestic violence counseling; general reference to section 991b does not override the more specific section 644(G)(5) governing how much of the domestic violence sentence can be revoked. The specific statute controls the revocation of suspended sentences in domestic violence crimes and authorized revoking Appellant’s suspended sentence in full.
Caudle v. St., 2024 OK CR 14
Affirmed conviction for lewd acts. Defendant’s presentation of evidence after State rested at trial waived his challenge by demurrer to the State’s evidence, but Court reviews general challenge to the sufficiency of the evidence. Appellant’s defense was entrapment. The primary factual issue in entrapment is whether the defendant was willing to violate the law. Appellant argues the evidence was insufficient to disprove entrapment without a history of sexually targeting underage girls and the lack of child pornography or related messages on his phone. The evidence would permit a rational jury to find he was willing to commit the charged crime and police provided him an opportunity. Evidence showing his willingness to make lewd propositions to the fictitious profile of a 13-year-old girl, his statements to police, and his trial testimony were sufficient to support the conviction and disprove entrapment.
Thomas v. St., 2024 OK CR 15
Denied certiorari from guilty plea to unauthorized use of motor vehicle. Motion to withdraw plea filed thirteen days later after plea was untimely and properly denied. Defendant’s incorrect belief that he had ten business days did not excuse the late filing. Because Petitioner was not free from fault, the trial court cannot have abused its discretion in denying his untimely request. Pursuant to Rule 2.2(C), appellate counsel offered affidavits from defense attorneys and prosecutor describing an untranscribed and unrecorded hearing on the motion to withdraw the plea. Counsel moved to supplement the record with these affidavits. Rule 2.2(C) contemplates a proceeding in which counsel must appear before the trial court to offer their stipulations or testimony about untranscribed and unrecorded proceedings. The trial court should then either adopt those statements as the official record or adjudicate any disputed matters about the proceeding. If the hearing occurs before completion of the original record the reconstructed proceeding will be transmitted with the original record. If the proceeding has been reconstructed after the original record is transmitted, counsel may file a motion to supplement the record under Rule 3.11. Because the materials submitted by counsel to reconstruct this proceeding are unnecessary to the resolution of this appeal, neither supplementation of the record on appeal nor remand to trial court for further proceedings under Rule 2.2(C) is required.
Golden v. St., 2024 OK CR 16
Affirmed trial court’s pre-trial denial of Stand Your Ground immunity. See generally 21 O.S.2021, § 1289.25. Murder and felony battery charges arose from physical altercation after a football game. Appellant allegedly fired on the crowd with a pistol he was carrying. Some evidence indicated Appellant started the quarrel, but may have been surrounded and knocked down just before the shooting. Appellant’s subsequent certification as an adult does not “relate back” or negate his crime of being a minor in possession of a firearm at the time of the fatal shooting. Because he was engaged in unlawful activity, SYG immunity is precluded under section 1289.25(D). Carrying the firearm allegedly involved in the shootings was a not a “minor infraction’ excepted from section 1289.25(D)’s “unlawful activity” exclusion. Juveniles carrying weapons in situations such as this results in escalation of conflicts into deadly confrontations; and is the kind of unlawful activity contemplated in section 1289.25(D). The crime is almost identical to Dawkins v. St., 2011 OK CR 1, where the Court held the crime of possession of the sawed-off shotgun used to shoot the victim was “unlawful activity” that precluded Stand Your Ground immunity.
St. v. Aguilar, 2024 OK CR 18
Affirmed trial court’s order quashing information for child neglect for insufficient evidence. An expectant mother who holds a medical marijuana card and uses the drug while pregnant does not violated statute prohibiting “the failure or omission to protect a child from exposure to . . . the use, possession, sale, or manufacture of illegal drugs,” 10A O.S.Supp.2019, § 1-1-105(48)(b)(1), and is therefore not guilty of child neglect. The statutes contain no definition of “illegal drug,” but most Schedule I drugs have high potential for abuse and no medical value, and historically could not be prescribed by a practitioner. The medical marijuana law blurred this distinction, because marijuana is not where the defendant, has a medical marijuana card. Illegal drugs are only those whose possession or use violated the law at the time of that possession or use. An expectant mother’s licensed use of medical marijuana cannot support an allegation that the mother failed to protect her unborn child from exposure to illegal drugs because her use is not illegal.
Bowlds v. St., 2024 OK CR 20
Affirmed felony assault convictions. Appellant rejected the help of two different appointed attorneys during trial and freely chose to represent himself, then requested re-appointment of counsel at sentencing. The court’s denial of such a request is reviewed for abuse of discretion, considering “the degree to which a defendant has shown good cause and the timeliness of the request.” Appellant requested counsel eleven days before the sentencing due to his COVID infection and inability to prepare. This was untimely given the court rules allowing 15 days to the opposing party to respond. And he managed after that to file a 45 page motion for new trial. The court found he was able to represent himself at sentencing. The trial court’s refusal to re-appoint counsel was not an abuse of discretion.
Cotton v. St., 2024 OK CR 21
Vacated and remanded order in revocation of suspended sentence. After more than four years on a 10 year suspended sentence, trial court’s order revoked 5 years and ordered a further five years suspended after the five years in custody. Trial court may revoke all or part of an original term of imprisonment that was suspended, but cannot order additional suspended time past the expiration of the sentence. Roberson v. St., 1977 OK CR 74. The trial court does retain the authority to revoke the entire term at any time before the expiration of the sentence. Revocation is remanded for modification to impose remaining balance of the 10 year sentence, either to confinement or suspended.
St. v. Alvarado, 2024 OK CR 23
Answered question of law reserved by the State. The initial information alleging five former felony convictions for enhancement is not a sufficient notice of stale prior convictions to comply with section 2609(B) of the Evidence Code, requiring advance written notice of a party’s intent to use stale convictions for impeachment. After the enactment of Discovery Code, the State may readily give the required written notice when it provides a timely pre-trial discovery of defendant’s prior convictions. See 22 O.S.2021, § 2002 (A)(1)(e, f, g), (D). Absence of written notice is not fatal to impeachment with stale convictions where the affected party has actual notice of the State’s intent to impeach with specific convictions already known to the party.
Irwin v. St., 2024 OK CR 24
Affirmed convictions for felony assault, kidnapping, and drug trafficking. Appellant’s McGirt and ineffective counsel claims are denied. He offers documents that he is apparently 1/32 quantum degree of Cherokee blood and a tribal member, and the crimes were committed within the boundaries of the Cherokee and Muskogee (Creek) Nations. McGirt claims no longer implicate subject matter jurisdiction, but rather personal and territorial jurisdiction. Deo v. Parish, 2023 OK CR 20, and may be waived if not raised prior to entry of a plea at district court arraignment. Appellant fails to show clear and convincing evidence that trial counsel was ineffective in failing to raise the claim. His self-serving allegation that he told trial counsel he was Indian is uncorroborated, and his motion to dismiss in the trial court contained no evidence of Indian blood. He presents no evidence that trial counsel knew he was Indian or omitted to file a McGirt claim knowing the current facts. No evidentiary hearing on the effectiveness of counsel is warranted.
Barkus v. St., 2024 OK CR 25
Affirmed firearm possession and felony DUI convictions over Appellant’s claim that his convictions in state court are void under McGirt. He presented evidence in the trial court of his Estelusti (Freedman) Seminole ancestry, and two commercial DNA tests indicating Native American ancestry. His Seminole Freedman tribal card lists his Indian blood quantum as 0/0 and the tribe declined his request to change the quantum. The trial court found Appellant presented no prima facie evidence that he has some Indian blood. This Court has yet to determine whether any DNA result would prove Indian blood for McGirt purposes and will not do so here. Appellant offered no expert or scientific evidence on the general reliability of DNA as proof of Indian ancestry, the reliability of the specific samples’ collection and preservation, or the methods for analysis and interpretation of these tests. Appellant cannot show the required prima facie evidence that he has some degree of Indian blood, and this defeats his McGirt claim.
Taylor v. St., 2024 OK CR 26
Affirmed convictions and life sentences for sexual battery and lewd acts. Trial court committed plain error when it gave the standard 85% Rule instruction(OUJI-CR(2d) No. 10-13A), without language explaining how life sentence is calculated as 45 years. The jury asked about separate terms and concurrent or consecutive sentences, but had no question about parole eligibility or the meaning of life imprisonment. The evidence was horrific and the jury intended to impose the maximum sentence in each count. Appellant fails to show the error seriously affected the fairness of the sentence, and no relief is warranted.
St. v. Kriegel, 2024 OK CR 27
Reversed and remanded order quashing information charging six counts of sexual rape or attempted rape for insufficient evidence at preliminary hearing. Trial court erred where evidence showed victim believed she was about to be raped when attacked, straddled, and groped by the accused. She managed to break free and escape. Two other victims indicated the defendant’s propensity to press unwanted sexual advances. Defendant’s actions probably would have resulted in first degree rape except for her resistance. Defendant’s acts of straddling and groping the victim showed an overt act supporting the charge of attempted rape.
Olvera v. St., 2024 OK CR 28
Affirmed convictions for murder, burglary, and desecration of a corpse. The record is inadequate to determine if Appellant’s arrest was unlawful or his statements were inadmissible, but the claim fails because he cannot show that the statement affected the outcome of the trial. Overwhelming direct and circumstantial evidence of Appellant’s direct involvement in murder and presence at the time crime scene permitted conclusion that his incriminating statements, even if inadmissible, did not affect the outcome of the trial.
St. v. Velasquez, 2024 OK CR 29
Reversed order suppressing evidence and dismissing criminal case. The district court found officers violated 22 O.S.2021, § 1228, the statutory “knock and announce” rule, when executing the search warrant and suppressed all the evidence discovered by the officers. Exclusion of relevant evidence is too extreme a remedy for a violation of section 1228 under the facts. Officers obtained a valid search warrant and whether they knocked and announced or not, they would have entered the illegal drugs, paraphernalia, and cash. The knock and announce rule seeks to prevent deadly confrontations between police and residents; it does not protect an interest in preventing the seizure of evidence described in a warrant. Other remedies, including a civil, police discipline, or criminal prosecutions for excessive force, better deter violations of the knock and announce rule. The exclusion of relevant evidence was not warranted here.
Martin v. St., 2024 OK CR 30
Affirmed revocation of suspended sentence and remanded for correction of court’s order. Trial court lacked authority to order Appellant’s revoked sentence be served consecutively to a subsequently imposed in another county. When a court revokes a suspended sentence it is not imposing a new sentence, but ordering execution of an original sentence. The original judgment and sentence did not provide for a consecutive sentence; the revocation of that sentence does not allow the court to now order it served consecutively to pre-existing time.
City of Tulsa v. O’Brien, 2024 OK CR 31
Reversed and remanded order dismissing municipal criminal case. Appellant moved for dismissal under McGirt with proof that he was Osage Indian and the crimes occurred within the Muscogee (Creek) Reservation in Tulsa. The General Crimes Act does not preempt state jurisdiction of crimes in Indian Country; nor does the balance of state, federal, and tribal interests as analyzed according to Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022) guided by White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (19xx). Oklahoma has concurrent jurisdiction with tribal and federal governments (for all but Major Crimes) committed by non-tribal-member Indians in Indian Country.
St. v. Tannehill, 2024 OK CR 32
Reversed order suppressing drug trafficking evidence seized in traffic stop. Trial court’s finding that officer unlawfully detained Appellee after completing the traffic stop. Officer’s questioning after conclusion of the traffic stop and telling defendant he was free to leave was part of a consensual encounter and involved no seizure of the person. was an abuse of discretion. This Court’s finding of a consensual encounter resolves Appellee’s challenge to the drug evidence in this case.
Jiminez v. St., 2024 OK CR 33
Affirmed order denying motion withdraw blind no contest plea. Plea counsel was not ineffective for deficiencies in explaining the plea, asking for a pre-sentence investigation, and presenting mitigation. The record shows the plea was voluntary. Failure to ask whether he wanted a PSI cannot invalidate the plea as it can be cured by re-sentencing. 22 O.S.2021, section 982 no longer mandates that a presentence investigation be conducted for any offender pleading guilty or no contest to a violent felony “as part of or in exchange for a plea agreement.” This plea was entered “in exchange” for the dismissal of 11 felony counts, and other terms. The effect of a PSI on the outcome is purely speculative.