Oklahoma Child Abuse Conviction Upheld in Kelsey Briggs Case
The Oklahoma criminal defense attorney for Raye Dawn Smith appealed her conviction at an evidentiary hearing last September, but last week, The Oklahoma Court of Criminal Appeals rejected Smith's appeal, upholding her conviction of enabling child abuse in the case of Kelsey Briggs. Two-year-old Kelsey died as a result of severe child abuse in 2005. Her case drew local and national attention because she was being monitored by the Oklahoma Department of Human Services at the time of her death. State officials had numerous documented evidence of her abuse prior to her death. Kelsey's case brought about a public outcry for DHS reform.
Smith was sentenced to 27 years in prison for enabling child abuse in Oklahoma. In the case, Smith and Kelsey's stepfather Michael Lee Porter each blamed the other for the abuse that ended Kelsey's life. Neither was found guilty of the homicide, but both were convicted of enabling child abuse. Porter was charged with Kelsey's murder but pleaded guilty to the reduced charge of enabling abuse. He is serving a 30-year sentence.
The Oklahoma domestic violence lawyer for Raye Dawn Smith says he is preparing to appeal her case in federal court. Smith and her attorney argue that juror misconduct led to her wrongful conviction. Smith's defense attorney provided witness statements alleging that a juror discussed the case with them and admitted to watching media reports about the case and visiting a website dedicated to the memory of the young victim. Smith and her criminal lawyer say that this juror's defiance of court orders to avoid media coverage of the case and her viewing of such information biased her opinion and tainted the verdict of the case.
Anyone accused of a crime in Oklahoma is entitled to a fair and impartial trial. If this impartiality jeopardized by a juror's failure to comply with the mandates of the course, the verdict in the case may not be fair. The right to appeal an unjust conviction is granted by the Constitution of the United States.
OKC Man Charged in Fatal Boating DUI
Last September, the Oklahoma criminal lawyer blog of Slane, Phillips, & Bailey described Senator Bill Brown's (R-Broken Arrow) push for stricter boating DUI laws in the wake of a fatal Labor Day boating accident. Now, Aaron Lynn Jones, 24, of Oklahoma City, has been charged in McIntosh County District Court in connection with the Lake Eufaula accident that killed one man and injured six other boaters. Jones is charged with first degree manslaughter and is accused of DUI in the boating accident that killed Greg Scherff, 38, also of Oklahoma City.
According to witnesses, several friends were partying on a beach before leaving to watch a football game. Scherff and six of the friends left in one boat, and Jones followed in a separate boat. Jones says that he was driving the boat at approximately 40 mph when he realized the boat Scherff was in had stopped. He said he tried to stop his own boat, but it was too late. The boat Jones was driving hit the boat in which Scherff was a passenger from behind and slid over its side. Jones says that after the accident, he called over to the passengers on the boat he struck and was told that everyone was fine. He then left the scene.
Investigating officers say that Jones was driving recklessly and that he is suspected of Oklahoma DUI. Jones admits to having two beers at the beach before the accident, but witnesses say he had at least six beers on the beach and in the boat, as well as several shots of liquor.
Oklahoma DUI law considers the legal limit for DUI to be a blood alcohol concentration (BAC) of 0.08 on land, but 0.10 on the water. Many legislators, including Sen. Brown, and their constituents push for standardizing the DUI laws and strengthening boating DUI law.
If Jones is convicted of first-degree manslaughter in McIntosh County, he could be sentenced to four years to life in prison.
If you have been charged with DUI, contact an experienced Oklahoma DUI lawyer to explain your charges and explore options for your defense.
Oklahoma Defense Attorney Admits Mistakes, Supports Appeal for Convicted Client
The current attorneys for a man convicted of murder in 2009 gain support for his appeal after his former Oklahoma defense lawyer issued an affidavit admitting mistakes that deprived his former client of a fair trial.
Clinton Riley Potts, 36, of Boynton, was convicted of first degree murder and sentenced to life in prison without parole in the 2004 death of his former friend Gregory Leroy Clark, 35. Potts's Oklahoma criminal defense attorneys are petitioning for a new trial, alleging that evidence was withheld during the initial murder trial, and that their client's former attorney failed to adequately represent the accused man at trial.
Stillwell defense lawyer Rex Earl Starr admits in an affidavit submitted to Muskogee County District Judge Tom Alford that he did not provide adequate defense for his former client and he made costly mistakes that led to the defendant's unjust conviction. Starr calls Potts's murder conviction "a gross miscarriage of justice."
Among the grounds for appeal is the allegation that a jailhouse informant, Peter Williams, only testified against Potts in order to gain favor with prosecutors. A note was recently discovered that shows that a Department of Corrections employee filed a violation report against Williams, alleging that he received preferential treatment for his testimony against Potts. However, First Assistant District Attorney Jeff Sheridan says that the strongest evidence supporting a new trial for Clinton Riley Potts is Starr's ineffective counsel affidavit.
In the affidavit, Potts's former Oklahoma defense attorney admits to failure to adequately investigate the case prior to trial, failure to interview state's witnesses, failure to subpoena eight witnesses with exculpatory statements, failure to move for mistrial when a witness was seen making prejudicial statements to jurors, failure to object to the witness's statements being admitted as evidence, failure to listen to or transcribe recorded interviews with state's witnesses, failure to move for a mistrial when he learned that a juror attended school with the victim's nephew who discovered the body, failure to present evidence and witnesses that showed another named individual committed the murder.
Starr's affidavit says that the attorney had "no strategic reasons" for his ineffective counsel.
Judge Tom Alford will submit a proposed order to the Oklahoma Court of Criminal Appeals, who will determine whether or not Potts will receive a new trial.
Expungement Request Withdrawn in Oklahoma City Homicide Case
Last summer, the Oklahoma criminal defense law firm of Slane, Phillips, & Bailey described the story of an expungement request by triple-homicide suspect Tybream Demont Rogers. When we first brought you the story, Rogers's attorney had requested a postponement of her client's Oklahoma expungement hearing. The lawyer stated that the postponement would allow her time to address objections lodged by the Oklahoma County District Attorney's office and the Oklahoma State Bureau of Investigation (OSBI).
Six months after requesting a postponement, Rogers's Oklahoma City expungement lawyer has withdrawn the request to have her client's records sealed. Paperwork for dismissal of the expungement request did not explain the reason for revoking the request.
Tybream Rogers was implicated in the 1996 shooting deaths of three people outside an Oklahoma City nightclub. Rogers was not accused as the shooter, but was charged with homicide for his involvement. His case ended in mistrial in 1999 after allegations of sexual misconduct by an arresting officer. An appellate court ruled that a retrial of Rogers on the homicide charges would be unconstitutional, subjecting him to double jeopardy.
Rogers initially filed a request to have his arrest record sealed because the record was negatively impacting his ability to find adequate employment. However, the district attorney's office and the OSBI argued that Rogers's case was not eligible for expungement because the case did not end in a verdict or a dismissal of charges. They further assert that, due to the seriousness of the charges, the public has a right to know about Rogers's arrest for the slayings.
With the filing of paperwork to dismiss the request for expungement, the arguments are now moot. Record of Tybream Demont Rogers's arrest will remain public.
For those who have successfully completed a deferred sentence, who have been acquitted of a crime, or whose conviction has been overturned upon appeal, an expungement of the criminal record may be a way to restore normalcy and to put the past behind them. To see if you qualify for expungement of your criminal record or arrest record, contact an experienced Oklahoma expungement attorney for more information.
Oklahoma Assault Charge Amended to Murder after Wife Dies
An elderly man was charged with assault and battery with a dangerous weapon in Oklahoma after allegedly stabbing his wife of fifty years as many as twenty times. However, after the woman died approximately a week after the attack, the charge has been amended to first degree murder.
On December 14, Rexford Earl Hilburn, 71, of Shawnee, allegedly stabbed his wife fourteen to twenty times in the bathroom of their home after accusing her of having an affair. Linda Carol Hilburn, 67, was able to call emergency officers for help. When police arrived, they found Rexford Hilburn standing alone in the back of a room.
The Hilburns' family members say the attack is completely out of character for Mr. Hilburn, with his son-in-law calling him "the kindest man I've ever known." The couple's granddaughter says that her grandfather began having "severe emotional issues" this summer, including mood swings, stuttering, and "[making] stories up." While he physicians had not yet found a diagnosis for Rexford Hilburn, he was on medication, and family members say he changed medication just before the attack.
Rexford Hilburn has no history of Oklahoma domestic violence, and in fact, has no criminal record at all. His Oklahoma criminal lawyer will likely be able to use Hilburn's medical history in conjunction with the lack of criminal record to build a defense. Further showing that the assault was out of character and unexpected is Mrs. Hilburn's reaction to her husband's actions. Even while hospitalized prior to her death, she was concerned for her husband's well-being, concerned about his safety in jail and wanting to make sure that he had his medication.
Pottawatomie County District Attorney Richard Smotherman says that "justice demands" a first degree murder charge for Rexford Hilburn, "regardless of the circumstances."
Judge Rules Against Infant Murder Trial; Prosecutors Appeal
Janette Mickelboro, 23, was arrested September 15, 2010, for the death of her infant son on August 20. She has remained jailed on $250,000 bond since her arrest on a first degree murder complaint. However, a Tulsa County judge ruled recently that there was not enough evidence to order a first degree murder trial for the young mother, a decision which prosecutors have appealed. A hearing in the appeal has been set for January 15, 2011.
The arrest came after Hunter Warner, just shy of four months old, was found dead in a bassinet by his father. Later, his mother, Janette Mickelboro admitted to authorities that she had tied a receiving blanket around the baby's head in order to hold his pacifier in place before putting him in a bouncy seat and leaving the room. She says that when she returned to check on her son "several hours later," she found him "stiff and cold." Rather than contacting authorities or seeking emergency medical care for her son, she admits, Mickelboro placed her son's body in a bassinet and left for work, leaving the dead infant for her partner, the boy's father, to find.
In order for someone to be found guilty of first degree murder, prosecutors must prove that the person killed someone else "with malice aforethought." This means that the killing was intentional and premeditated, or that it was committed recklessly with extreme disregard for human life.
Tulsa County Special Judge Allen Klein ruled that, in the Mickelboro case, prosecutors presented insufficent evidence for a first degree murder trial. The autopsy report in Hunter Warner's death listed the cause of death as unknown, and a report of the findings states that “no specific findings were noted at autopsy that are specific or conclusive for suffocation.” However, at Mickelboro's preliminary hearing, the medical examiner in the case testified that an airway obstruction causing suffocation was more likely than not the cause of the infant's death.
Furthermore, several witnesses claim that they had seen previously seen Mickelboro wrap a blanket around her baby's head to hold a pacifier in place, and that they had warned her that it was a dangerous practice, cautioning her against further such action. Prosecutor's contend that Mickelboro's knowledge of the dangers associated with wrapping an infant's head in a blanket makes her actions negligent, reckless, and abusive to the point of becoming first degree murder.
Mickelboro's Oklahoma criminal defense attorney calls the baby's death "an unfortunate and tragic accident," and asserts that his client is not guilty of either first degree murder or Oklahoma domestic abuse. Rather, Mickelboro was a young, uninformed mother who did not understand the consequences her actions could have.
If the judge's ruling is upheld at the January appeal hearing, first degree murder charges against Mickelboro will likely be dismissed.
7 Year Sentence for Driver in Fatal Oklahoma City DUI Crash at IHOP
A 26-year-old Oklahoma woman was sentenced last week to seven years in prison after she pleaded guilty to first-degree manslaughter on November 1. Nina D. McCollom's conviction is the result of an April 3, 2009, fatal Oklahoma City DUI accident, in which she drove her vehicle into an IHOP, killing diner Chris Pitts, 36. Pitts was eating at the restaurant with his girlfriend when McCollom crashed her SUV through the wall of the Northwest Oklahoma City IHOP, pinning Pitts against the table. He died en route to the hospital.
After the crash, McCollom told police that her brakes had failed. However, police found no evidenced of mechanical failure of the vehicle. McCollom, who then admitted to having "five beers," was found to have a blood alcohol concentration of 0.21, nearly three times the legal limit for DUI in Oklahoma.
At McCollom's sentencing, the victim's mother requested that the driver be sentenced to 36 years in prison--the length of her son's life. However, Oklahoma County District Judge Kenneth Watson, a former Oklahoma criminal defense attorney, sentenced McCollom to 7 years in prison followed by 18 years of probation. Furthermore, McCollom's driver's license will be suspended for 25 years, a move which the judge says will "provide for the safety of the community." McCollom must also pay restitution to the victim's family and $2,500 to the Oklahoma Victims Compensation Fund.
Chris Pitts is survived by a daughter who was 9 years old at the time of the crash. A lawsuit against McCollom and the bar at which she had been drinking before the accident was settled for $1.1 million, with the majority of the settlement going to Pitts' daughter.
At her sentencing, Nina McCollom said that the crash was a "horrible accident" and that she had not realized she was intoxicated the night of the fatal DUI.
Parole Board Votes to Commute Sentences of Two Oklahomans
Last week, the Oklahoma Pardon and Parole Board voted to commute the sentences of two Oklahoma men convicted of separate crimes.
In the first case, the state Parole Board voted unanimously to commute Richard Sipe's 60-year-sentence for manufacturing methamphetamine to the seven years he has already served. Sipe was convicted in 2003 of aggravated manufacturing of methamphetamine in Oklahoma. His 60-year sentence on the Oklahoma drug offense was the states most severe sentence for Oklahoma drug manufacture. The Oklahoma Department of Corrections reports that, of the nine people currently serving time on a primary offense of drug manufacture, the average sentence is 24 years. Sipe was arrested along with another person in 2002. His counterpart struck a plea agreement and was sentenced to eight years and released in 2005. Sipe, who took his chances with a jury, was sentenced to 60 years for his drug offense. Sipe's Oklahoma drug defense attorney says that the Parole Board saw clearly that Sipe's sentence was extreme.
Although his aggravated manufacturing sentence has been commuted to time served, Richard Sipe will remain in prison, serving a consecutive 10-year sentence for possession of a firearm in the commission of a felony and failure to affix a tax stamp to a controlled drug.
Charges Not Expected for Oklahoma Woman Who Shot Intruders
The woman who shot two teenage intruders, one fatally, at her home in Midwest City last week is not expected to face charges, according to Midwest City Police Chief Brandon Clabes. While a report on the shooting will be sent to the district attorney's office, the Chief of Police says that it appears that the shooting was legal, and that the woman was within her rights under Oklahoma's "Make My Day" law. She will not likely face charges of homicide or shooting with intent to kill in Oklahoma.
In the incident, two 15-year-old step-brothers kicked in the door of the woman's home last Thursday morning, and attempted to steal her flat-screen television while a 17-year-old friend acted as lookout. The noise awakened the woman, who was at the home with her two young children. When the woman found the intruders in her living room, she fired at them, shooting both. Marquis Lee Patterson died at the scene, and his stepbrother, Dewayne Edward Kemp, fled with a gunshot wound to the stomach.
Because Patterson's death occurred during the commission of a felony, Kemp and the lookout, DeAungelo Quiae Johnson, have been charged with first-degree murder. Although none of the teenagers appeared to be armed, under Oklahoma law, anyone who commits a felony during which a death occurs may be charged with murder. According to Chief Clabes, "It really makes no difference whether they were armed or not; they were committing a felony." Johnson is being held without bail in the Oklahoma County Jail, where Kemp will be transferred when he is released from the hospital. Despite the fact that neither young man was armed, they will be charged with the Oklahoma violent crime.
Oklahoma's Make My Day law was enacted in 1987. According to Senator Charles Ford (R) who fought for the bill, "The purpose of the law is to protect the victim of crime who defends his home and his family against unlawful intrusion from any criminal prosecution or civil action. We considered it outrageous that someone who protects his home and family should suffer. Our law says you can use any force, including deadly force, to defend your home."
Prior to the legislation, homeowners were only allowed to use like force in the defense of their families and property. For example, if an intruder was armed with a knife, the homeowner would not be able to use a firearm to protect themselves and their property. Lethal force, therefore, would only be legal and justified in defense against an armed burglary in Oklahoma.
Man Charged with Oklahoma DUI Manslaughter Kills Himself
A man charged with first degree manslaughter in a fatal Oklahoma DUI accident that claimed the life of a 15-year-old girl died last week of a self-inflicted gunshot wound.
On Monday, September 27, Patrick Hughes was charged with first degree manslaughter and a warrant was issued for his arrest. He killed himself Thursday before he was ever taken into custody.
Hughes's manslaughter charge came after an August 20 crash that killed 15-year-old Sara Dietz and injured her 18-year-old sister, Misty Dietz. After the accident, Hughes was determined to have a blood alcohol concentration of 0.23, nearly three times the legal limit for DUI in Oklahoma. Additionally, authorities found that Hughes was under the influence of marijuana at the time of the collision.
In the incident, Patrick Hughes, 40, was attempting to pass a car driven by the older Dietz sister. When he saw an oncoming SUV, he attempted to swerve back into his lane, striking the Dietz vehicle and pushing it into the path of the SUV. Sara Dietz, a passenger in the car driven by her sister, died as a result of the collision, leading to Hughes's manslaughter charge in addition to charges of driving under the influence.
The Oklahoma DUI charge and first degree manslaughter charge were not the first in Hughes's criminal history. Patrick Hughes previously pleaded guilty to public intoxication and to transporting an open container of alcohol. Additionally, he has had four charges of Oklahoma domestic assault and battery.
If convicted of first degree manslaughter in Oklahoma, Hughes would have faced a minimum of four years in prison for the offense.