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PHILLIPS & ASSOCIATES Oklahoma Criminal Defense Attorneys

Fatal Shooting of Burglar Shows Real Risk of Crime in Oklahoma

December 22nd, 2014

The holiday season is peak time for burglaries and theft in Oklahoma and around the nation. While homeowners are advised to make sure windows and doors are locked and valuables are out of sight, those who would consider breaking and entering should be aware of the risks they face when they burglarize a home in Oklahoma.

On Saturday afternoon, police were called to a northwest Oklahoma City neighborhood in response to an alarm.  As they arrived, they could hear the burglar alarm sounding. In the meantime, a homeowner’s son called 9-1-1 to report that his father shot an intruder.

When police arrived, they found the suspect’s body found outside the home. The homeowner claims that the intruder was shot inside the home and died as he attempted to leave. Police are investigating the shooting.

Reports indicate the homeowner involved in the shooting was Windsor Hills Baptist Church pastor Tom Vineyard, who has made news in the past when the Southern Poverty Law Center listed his congregation as a hate group in response to his inflammatory statements about homosexuality.

In Oklahoma, breaking into an occupied home with the intent to commit a crime is first degree burglary. The penalties are severe: seven to 20 years in prison. It is also an 85 Percent Crime–a violent crime that requires anyone convicted to serve a minimum of 85 percent of his or her sentence before being given even the possibility of parole.

However, in a state that has permissive gun laws and fully supports the Castle Doctrine and Stand Your Ground laws, the real risk of committing burglary is not the criminal penalty associated, but the risk of being shot and killed by an armed homeowner.

  • On New Year’s Eve 2011 in Blanchard, a recently widowed 18-year-old mother shot and killed an intruder breaking into her home searching for drugs.
  • In October 2010, a Midwest City mother shot two teenagers who broke into her home to steal a flat-screen TV. One of the 15-year-old burglars died of his injuries.
  • In October 2012, a 12-year-old girl in southeast Oklahoma shot an intruder through a door as she crouched and hid in the closet.
  • In October 2014, a Shawnee homeowner shot a burglary suspect in the chest.

The Castle Doctrine supports the rights of people to feel safe and secure in their own homes. If an intruder breaches the sanctity of one’s home, the homeowner and any occupants have the right to assume an intruder means harm and thus, have the right to use lethal force to protect themselves.

If you are considering letting yourself into someone else’s home and lifting the presents from under the Christmas tree, be aware that the immediate risk you run in Oklahoma is far more serious than the penalties of conviction.

 

 

 

’99 Problems’ but the Fourth Amendment Ain’t One

December 18th, 2014

About 45,000 people graduate from law school each year. The remaining 316.055 million Americans get their legal education from pop culture. Everything we know about forensic investigation, we get from CSI. Everything we know about criminal law and the justice process, we get from Law and Order marathons. And now, everything we know about the Fourth Amendment comes from Jay Z’s ’99 Problems.’

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Image Credit: dailymail.co.uk

Sometimes, pop culture gets it right; often, it perpetuates myths and misconceptions about the way things really are. Saying, “I know my rights,” because we watch a lot of courtroom drama is akin to saying, “I can perform open heart surgery,” because we watch a lot of ER.

One law professor took a close look at pop culture and the law when he performed a line-by-line analysis of the second verse of Jay Z’s ’99 Problems.’ While pop culture may not tell us what we really need to know about the law, using it as a tool for understanding is a common pedagogical strategy to help students make meaningful connections. That’s exactly what Caleb Mason, Associate Professor of Law at Southwestern Law School and former Assistant U.S. Attorney, did when he wrote the essay, “Jay-Z’S 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps.”

In his article, Mason goes line-by-line through the second verse of the song, in which Jay-Z details a traffic stop as he is transporting drugs, an incident the rapper says is based on a real experience.

I’m not going to go through and rehash the article, because you can read it for yourself to see what Mason says Jay Z got right about his Fourth Amendment rights, and what he got wrong. If you haven’t read the article, you really should–whether you’re a law student, a lawyer, a law enforcement agent, a drug trafficker, or just someone interested in understanding your constitutional rights.

However, I do want to spotlight something interesting that Mason points out in his analysis–the misconception that police need a warrant to search your vehicle in a traffic stop.

In the article, Mason writes about a lot of things that Jay-Z, as the detainee in a traffic stop–who happens to be transporting drugs–gets right:

  • He chooses to stop rather than to attempt to evade police. (“I got two choices y’all, pull over the car or / Bounce on the double put the pedal to the floor. / Now I ain’t trying to see no highway chase with jake / Plus I got a few dollars I can fight the case.”
  • He doesn’t answer police questions about the nature of the stop. (“And I heard, “Son do you know what I’m stopping you for?” / “’Cause I’m young and I’m black and my hat’s real low? / Do I look like a mind reader sir, I don’t know.”
  • He asks the officer if he is under arrest. (“Am I under arrest or should I guess some mo’?”)

In each instance, Mason explains why Jay-Z made the appropriate choice. However, it is at this point in the song that Mason says Jay-Z’s knowledge of the Fourth Amendment gets a little fuzzy.

In the narrative, the cop asks Jay-Z to step out of the car, and he refuses. Unfortunately, a Supreme Court ruling in Pennsylvania v. Mimms holds that it is not a Fourth Amendment violation to ask a person to exit the vehicle in a traffic stop:

“[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.”

After the officer asks Jay-Z to step out of the vehicle, he asks if he can search the car. Jay-Z rightfully withholds consent. You have the right to refuse consent to a search. The police will not notify you of your right to refuse, so it is important to know that you do have that right.

One important thing to note: Your refusal does not mean that police cannot search your vehicle. There are lots of ways around your refusal, including “reasonable suspicion.” However, if you have consented to the search, it trashes your ability to argue illegal search and seizure, and it ruins a lot of defense remedies available to you.

This is something else that Jay-Z got wrong: that police cannot search a locked trunk (or glove compartment) without a warrant: “Well, my glove compartment is locked, so is the trunk and the back, / and I know my rights so you go’n need a warrant for that.”

Mason explains:

“If this Essay serves no other purpose, I hope it serves to debunk, for any readers who persist in believing it, the myth that locking your trunk will keep the cops from searching it. Based on the number of my students who arrived at law school believing that if you lock your trunk and glove compartment, the police will need a warrant to search them, I surmise that it’s even more widespread among the lay public. But it’s completely, 100% wrong.

There is no warrant requirement for car searches. The Supreme Court has declared unequivocally that because cars are inherently mobile (and are pervasively regulated, and operated in public spaces), it is reasonable under the Fourth Amendment for the police to search the car—the whole car, and everything in the car, including containers—whenever they have probable cause to believe that the car contains evidence of crime.75 You don’t have to arrest the person, or impound the vehicle. You just need probable cause to believe that the car contains evidence of crime. So, in any vehicle stop, the officers may search the entire car, without consent, if they develop probable cause to believe that car contains, say, drugs.”

A lot of times, the more loudly someone protests, “I know my rights!” the more likely he or she is to be completely misguided about the rights. It is important that all citizens truly understand what is expected of them and what law enforcement can and cannot legally do.

Remember: protect your right to silence, do not consent to a search, and call your lawyer.

‘Baby It’s Cold Outside’ – Alcohol, Roofies, and Date Rape

December 15th, 2014

What do Bill Cosby, a Norman teenager, and a popular Christmas song have in common?

If the allegations are true, all of the above are somehow involved in date rape.

At least 19 women have publicly accused Bill Cosby of sexually assaulting or raping them in a string of alleged incidents stemming back to the 1960s. In many of these cases, Cosby allegedly drugged the woman in some way: offering “herbal pills” for relaxation or to relieve menstrual cramps or giving them a glass of wine or cup of coffee. In these cases, the women say they awoke disoriented and disrobed, having never consented to sexual activity.

Here in Oklahoma, a former Norman High School student was arrested and charged with rape after being accused of raping three girls between January and September. Tristen Kole Killman-Hardin, 18, is charged with two counts of first degree rape after allegedly assaulting a 16-year-old girl who accepted a ride home from a party. The girl was highly intoxicated, and according to reports, the boy bragged to a friend about raping the unconscious girl. A cell phone recording purported to be a conversation between the accused teen and his friend seems to indicate that the Killman-Hardin intentionally took advantage of the girl, who was unable to consent to sex. When the friend asks if the girl was “into it at first,” a voice alleged to be Killman-Hardin’s replies, “She was asleep! I just, like, she was, like, incoherent. Like you could not talk to her at all.”

So what could the two above-described cases possibly have to do with a holiday song?

Some say the seasonal classic “Baby It’s Cold Outside” isn’t about playful banter, but rather a song trivializing date rape.

If you take a look at the lyrics to “Baby It’s Cold Outside,” the idea isn’t so far-fetched.

The song was written in the 1940’s by Frank Loesser, who dubbed the female role of the duet “Mouse,” and the male role “Wolf.” Just the designation of the parts as Wolf and Mouse seems to give the song a predatory tone.

Next, the lyrics go between a woman’s insistence that she needs to leave, and the man’s persistent string of arguments attempting to convince her to stay. Those who love the song would argue that the woman actually wants to stay and is looking for reasons–that she wants to be convinced. In that case, maybe this is just a cute song about a man trying to woo a woman into staying with him, using the weather as a ruse.

But a key issue in the song is when the girl finally agrees to “Maybe just a half a drink more.” Withing just a few lines, she asks, “Say, what’s in this drink?”

Does that question indicate that Wolf slipped a roofie in Mouse’s drink, a la Bill Cosby, or that he’s mixing them strong in order to get little Mouse too drunk to refuse?

"Say, what's in this drink?"

“Say, what’s in this drink?”

Under Oklahoma law, it wouldn’t matter whether Wolf actually drugged a drink or plied Mouse with alcohol until she was too intoxicated to resist.

State law defines first degree rape in 21 O.S. § 1114, and included in this definition are acts of sexual intercourse accomplished through a victim’s intoxication or unconsciousness:

Rape in the first degree shall include: . . .

3. rape accomplished where the victim is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit; or

4. rape accomplished where the victim is at the time unconscious of the nature of the act and this fact is known to the accused;

Whether you think of the song as a cute, flirty little ditty or a sinister look at how pop culture glosses over rape, it is important to be aware of the significance of the role of alcohol and drugs in date rape. If a person is too intoxicated to verbally withhold consent, that doesn’t mean that consent is implicit.

We’ve been taught for decades that “No Means No,” –and in fact, in “Baby It’s Cold Outside,” Mouse clearly does state, “The answer is no.” However, it is important that men and boys understand that the absence of a verbal “no” is not a green light to “yes.”

Image Credit: Modified from image by Pat (Cletch) Williams

Wife of Murdered Fire Chief Loses Appeal

December 12th, 2014

In 2013, Rebecca Bryan was convicted of murdering her husband, Nichols Hills Fire Chief Keith Bryan. Her case was sordid–like something you might see on a prime-time mini-series, not something playing out in an Oklahoma City courtroom.

Tales of illicit affairs, nude photos, and a woman who was laughing and texting another man on the way to the hospital after her husband had been shot in the head by “an intruder” painted a picture of an obsessed woman who cared nothing for the man she was accused of killing in cold blood.

Bryan was found guilty and sentenced to life without parole.

After her conviction, Rebecca Bryan launched an appeal, citing errors including ineffective counsel, improperly admitted prejudicial evidence, and “accumulation of error” which prohibited the defendant from receiving a fair trial.

Yesterday, the Oklahoma Court of Criminal Appeals upheld her conviction.

In her appeal, Bryan argued that the court should not have entered as evidence nude photos of the woman that she allegedly sent to other men, and should not have allowed evidence of her sexual encounters and communications with men other than her husband. Bryan’s attorneys argued that such evidence was “prejudicial” and “did not show motive.”

The appeals court disagreed, issuing the following opinion:

“Taken together, this evidence paints a sad and striking picture of Bryan in the days and hours leading up to the murder. All this evidence was relevant to show Bryan’s motive and state of mind. We found no error in Propositions I, II or III. Where there is no error, there is no cumulative error.”

Read more about the Bryan murder case here.

A similar case is currently playing out in Oklahoma City. Kinney Glasson, 33, called police to his Northwest Oklahoma City home last month, saying that an intruder broke into his home, and that in an attempt to shoot the intruder, he accidentally shot his own wife. Erin Glasson, 41, died of a single gunshot wound to the head.

Soon, Glasson was under investigation for his wife’s murder, with police believing the story didn’t add up. They discovered that the man had been having an affair with an exotic dancer he met at a strip club, and who was currently incarcerated in the Stephens County jail.

After the death of Erin Glasson, her husband’s mistress expressed shock, saying that he told her that his divorce was to be finalized in January, and that he was raising bail money to get her out of jail.

No court documents indicate that Glasson ever filed for divorce.

 

Longest Prison Sentences

December 8th, 2014

On August 1, 2013, Ariel Castro was sentenced to life in prison plus 1,000 years for kidnapping three young women and holding them in captivity for more than a decade. Approximately one month later, on September 3, he was found dead, hanging in his cell. Apparently, the thought of captivity, which he ruthlessly inflicted on his three victims, was too much for him.

Life without parole plus 1,000 years is a sentence which is designed to ensure that the convicted person will never, ever be released from prison. While Castro’s sentence was newsworthy, it was not the longest sentence ever handed down.

Longest Prison Sentences CopyWhile the average prison sentence is 2.9 years, longer sentences are certainly possible for more egregious crimes. In Oklahoma, life sentences are possible for violent crimes including murder, manslaughter, child abuse, and rape.

In some cases, life sentences are multiplied, with a convicted person given a life sentence for each victim. Sometimes, a person is sentenced not to life, but to hundreds or even thousands of years in prison.

The longest prison sentence on record, according to the Guinness Book of World Records, actually comes from Oklahoma, which is really not surprising when you look at the state’s reputation for tough sentencing.

In 1994, Charles Scott Robinson was convicted of six counts of sex crimes against children, including rape by instrumentation, forcible oral sodomy, and lewd acts with a child under 16. For the rape and molestation of a 3-year-old girl, Robinson was sentenced to 5,000 years for each of the six counts–a 30,000 year prison sentence.

The jury recommended the 5,000 year sentences, which the judge ordered to be run consecutively, as a way of ensuring that Robinson would never be released from prison, because “life without parole” was  not a legally-appropriate sentence for his crimes.

Two more men on the “longest sentences” list also were convicted in Oklahoma. In 1993, Allan McLaurin and Darron Anderson were convicted of rape, forcible sodomy, assault with a dangerous weapon, burglary, robbery, and larceny. McLaurin was sentenced to 21,250 years in prison. He appealed, and his sentence was reduced by 500 years. His accomplice, Anderson, was initially sentenced to 2,200. He also appealed, but at his second trial, he was again convicted, and this time sentenced to 11,250 years in prison–the longest sentence ever given as the result of an appeal.

The record for the most life sentences is held by Bobby Joe Long, a serial rapist and murderer in Florida. Long became known as the “Classified Ad Rapist” after he would respond to ads about small appliances. If he found a woman alone in responding to the ad, he would rape her. He is accused of raping about 50 women, and he confessed to murdering 9 women, although police believe he is responsible for more murders. He was given one 5-year term, four 99-year term, and 28 life sentences; however, he also received a death sentence, so those other sentences won’t matter much in the long run.

 

Former Cake Drummer Sentenced for Child Molestation

December 4th, 2014

Back in the good ol’ days, if you heard about a celebrity sex scandal, it involved who was sleeping with whom, who was cheating on whom, and whose sex tape was leaked. Recently, though, it seems as if celebrity sex scandals more frequently involve sex crimes than consensual sexual escapades:

  • Stephen Collins, an actor who played a minister and father of seven on the television series 7th Heaven is accused of exposing himself to three young girls and molesting at least one of them.
  • Bill Cosby, perhaps the most famous of wholesome TV dads, has been accused of rape by several women.

Obviously, celebrity sexual assault claims aren’t anything new, but in the past few weeks, the headlines seem inundated with accusations.

Just this week, Peter Ivan McNeal, former drummer for notable acts including Cake and Norah Jones, was sentenced to 15 years in prison for molesting a 3-year-old girl.

Police arrested McNeal in early 2012 for the incident they say took place at a Thanksgiving party in 2009. He was charged with a single count of oral copulation of a child under 10. Although his first trial ended in a mistrial with a hung jury, he was convicted in the spring of 2013. This week, he was finally sentenced in the case. McNeal is sentenced to 15 years to life in prison and lifetime sex offender registration.

The drummer has another conviction involving child molestation as well. Just a two weeks after the Thanksgiving incident, McNeal was accused of trying to molest a 6-year-old girl at a school where he was working as a volunteer. In that case, McNeal pleaded guilty to two counts of luring a child and lewd conduct. He was given 3 years of probation and ordered to attend sexual counselling for a year.

McNeal and his family continue to maintain his innocence in the most recent case, and his attorney has filed an appeal.

It does seem a difficult case in which to obtain a conviction: a man is accused of having oral sex with a toddler, but the arrest came more than two years after the alleged incident–and only after he was convicted of a separate crime. It seems that evidence would be shaky at best, with a lack of physical evidence and the testimony of a 6 or 7-year-old asked to recall an incident when she was only 3. It is possible that the girl was led to make certain statements and to have false recollections after being questioned in the aftermath of McNeal’s guilty plea to an attempted molestation.

It is also possible that he is, in fact, guilty of the crime of which he was convicted.

Regardless, while one jury could not reach an agreement, a second jury found enough evidence for a guilty verdict. Unless his appeal is successful, he will spend the next several years in prison.

 

How to Avoid Identity Theft During the Holidays

December 1st, 2014

Today is Cyber Monday, and for shoppers who prefer to skip the drama of Black Friday sales, it means online deals and the ability to shop peacefully at home without fighting crowds.

It also means the risk of identity theft from unsecured websites. Of course, identity theft and credit card theft aren’t limited to online shopping. Recent hacks have resulted in the large-scale theft of credit card information and “data breaches” from major retailers including Home Depot, Target, Kmart, Staples, Neiman Marcus, and more.

Any time you use your credit card or debit card, that information may be available to hackers. Every time you receive personally identifying information or account statements in the mail, those documents could be vulnerable to theft.

Obviously, there are risks whether you shop in person or online, whether you pay by credit card or PayPal or whether you pay only in cash. Armed robbery and muggings may be a risk if you shop at a brick-and-mortar store, but identity theft may be a risk if you use a credit card or shop online.

The answer isn’t to avoid shopping, but rather to take precautions to protect yourself from identity theft during the holiday season and throughout the year.

An article published by the San Diego Union-Tribune (U-T San Diego) gives “6 Cybersecurity Tips for the Holidays.” These include the following recommendations:

  • Avoid phishing scams that collect your personal information by being careful about which links you click. Avoid clicking email links that offer unbelievably low prices. Sometimes, these links appear to be from trusted retailers, but the actual email address from which the message generates is not the official business email address. Reputable businesses will not solicit personal information in an email.
  • Read the fine print of any deal to be sure you are not getting more than you bargained for in the form of recurring monthly charges. Also check the site’s privacy policy to make sure they don’t collect and save your payment information.
  • Take a close look at your social media profiles to make sure you aren’t giving out more information than you intended. Giving a full name, birthdate, and hometown can allow information thieves to piece together partial information to steal your identity and create false accounts.
  • Only shop from secure websites. Make sure the URL for the site from which you are buying begins with https://. If the ‘s’ is missing, the site is not secure.
  • Always log out of payment accounts and close your browser after purchasing online. Staying logged into accounts allows people to access your payment information, even on a private computer.
  • Don’t allow e-commerce sites to store your credit card information. Often, this can seem like a time-saving technique for online stores you frequent, but it makes your credit card information vulnerable to hacking.

Learn more about preventing identity theft at USA.gov.

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PHILLIPS & ASSOCIATES Oklahoma Criminal Defense Attorneys