Oklahoma Criminal Defense Blog

As criminal defense attorneys will tell you, an attorney is expected to defend someone suspected of a crime.  That was not the case in New Mexico earlier this month.  The lawyer called the police, but she did so when a man apparently told her to do so.

Lauren Oliveros called the police in Albuquerque, New Mexico, to report a man walked into her law office and told her had killed two people the day before and wanted to turn himself in.  The man told her where the bodies could be found.

Ralph Montoya wanted to give himself up.  He was already on bail for attacking these very two victims weeks before.  Police found the bodies of Stefanie Gray and her boyfirend, Hector Torres at Torres’ home.  Ms. Gray was a high school teacher, and Torres was a professor of English at the University of New Mexico.  Gray was also a graduate student at the University of New Mexico due to defend her thesis this month.

Following the tip from Montoya, police went to Torres’ home, kicked in the back door and found their bodies in the house.  Police reported they found a handgun was in Torres’ left hand, pointing at his head.  One officer said the handgun appeared to have been placed there, but that could be one of those “police opinions” that creep into the courtroom and are claimed to rest on some sort of expertise, but which are really based on nothing more than “hunch”.  In other words, police routinely claim to know things that they really do not know.  But none of that apparently matters to solving this case.

At the time of these deaths, Montoya was on bail for attacking Ms. Gary and Mr. Torres. In that earlier incident, Montoya reportedly forced his way into the front door, chased Gray into a back bedroom, jumped on her and kicked her, all while Torres was fighting him.  Gray broke free, Montoya pulled a knife, and Torres started talking.  Torres must have been a pretty good English professor because he talked Torres into dropping the knife.

Gray then obtained from the court in Sandoval County a restraining order against Montoya, who was then released on bail on the charges of kidnapping, aggravated assault with a deadly weapon, aggravated assault on a household member  and aggravated burglary.  It was while on bail for this incident that Montoya allegedly confessed to going to Torres’ home and killing Gray and Torres.

This was not Montoya’s first rodeo.   In 1995, Montoya pleaded guilty to charges of stalking, assault, attempted arson and attempted breaking and entering after a complaint from a student at New Mexico State University in Las Cruses.  For that, he received probation for a year.      But that was not enough, so in 1998, another woman from Las Cruses obtained a restraining order against Montoya.  She claimed that Montoya had made 15 to 20 threatening telephone calls a day for two months and that she had seen him near apartment window several times.

With a belly still not full, Montoya had an incident in 2005 with a different woman, this one from Rio Rancho.  She complained that Montoya had harassed her for a month after they had dated briefly.  She said he would show up at her home at her new boyfriend’s home, but no charges were ever filed.

Nadine Hamby, spokeswoman for the Albuquerque Police Department, summed up Montoya’s attitude pretty well.  “Obviously ‘no’ was not something he wanted to hear,” Hamby said.   As to the subjects of Montoya’s serial attention, she said: “It appears he wouldn’t leave them alone until he found someone new.”

Not to be outdone by Arizona, Oregon, Missouri and other states, the Oklahoma legislature has been considering enactment of a law to permit the “open carry” of firearms.  Various states have various laws permitting such display of guns.  Some states permit such practice only with a permit.  Other states permit the practice but it is subject to municipal restrictions.  Vermont has no restrictions on the open carry of firearms.

Of course, the local police often have interpretations different than the plain reading of the law.  As criminal defense attorneys in Oklahoma, police routinely demand of homeowners if “they have any guns in the house.”  The police then seize the guns, regardless that the guns or their possession have nothing to do with the reason the police were called to the citizen’s home.  Then the police, regardless of lacking any legal basis for their possession of these guns, refuse to release the guns until forced by a court order to do so.

A proposal in the Oklahoma House of Representatives was recently killed as result of legislative procedures.  However, a proposal is still alive in the House to allow gun carry permit-holders, now required to carry guns concealed at all times, to also carry them out in the open.

Representative Sue Tibbs of Tulsa sponsored HB 2538.  She accepted an amendment to her bill by Rep. David Derby of Owasso, allowing those with concealed carry permits to carry the weapons in the open.  She had also accepted an amendment offered by Rep. Mike Reynolds of Oklahoma City to allow any person to carry a rifle, shotgun or pistol at any time if the person had a reasonable fear of bodily harm.

Rep. Reynolds then spoke against his own amendment because, if his amendment failed, he could introduce a stronger open-carry amendment. He was unhappy that Rep. Tibbs filed an amendment that took the title off the bill, which meant that it eventually would have to go through the committee process.

Reynolds wanted his amendment voted on with a recorded vote so that gun rights advocates could see how legislators voted.  Before a vote could be taken, however, Rep. Tibbs accepted the amendment.  Rep. Jeff Hickman, presiding in the House, then asked for a voice vote on Reynold’s amendment, and, upon that voice vote, Hickman declared the amendment adopted.  At that point, Hickman realized his mistake.  He had called for the vote and left off the amendment.

Rep. Tibbs then said she will not bring up her bill for consideration this session.  Rep. Derby’s amendment allowing concealed carry permit-holders to carry the weapons in the open may get new life, however.  Rep. Rex Duncan of Sand Springs says he will try to place this amendment into one of his proposals, HB 3354, which deals with the carrying of weapons.   Amendments may be added to legislation if they have the same general subject matter as the legislation to which they are added.

Rep. Tibbs held her N.R.A. card up for all to see during the debate on her bill.  She also stated she herself has a concealed-carry permit. She claimed that this was not one of the N.R.A.’s priorities, that this “is not an N.R.A. bill.”  Nevertheless, Tim Gillespie, vice president of the Oklahoma Second Amendment Association, said he is disappointed the measure failed.

The Oklahoma Office of the Chief Medical Examiner lost its accreditation in July, 2009, from the National Association of Medical Examiners.  In June, 2008, Dr. Jeffery Gorton, the chief medical examiner, announced he planned to quit performing autopsies in Tulsa.  Legislators from Tulsa objected, and he resigned.   An employee in the Tulsa office who was in charge of petty cash and checks was discovered to have a felony conviction and promptly resigned.  Then the chief investigator, Kevin Rowland, resigned last March, claiming the reason for his resignation was job stress.  Four months later in July, however, he was indicted in Tulsa County District Court for sexual battery and harassment.

Tom Jordan, long-time employee and former deputy director of the Oklahoma State Bureau of Investigation was hired a couple of months ago as chief administrative officer of the Medical Examiner’s office.  Then, a new chief medical director, Dr. Collie Trant, was hired as chief medical examiner in . Those two did not get along, as illustrated by the fact that Tom Jordan informed the board that Trant was a “liar.”  The Oklahoma Board of Medicolegal Investigations then fired Trent on February 5th after nine months on the job. The board gave reason for the dismissal, and Trant has filed suit to get his job back.  Trant claims he was fired when he presented evidence of employee misconduct to the board.

Last month was busy month at the medical examiner’s office with other events.  The governor ordered an investigation into the office.  The board hired another acting chief medical examiner, Dr. Eric Duvall, but he promptly resigned.  Citing financial irregularities, leaders of both houses of the legislature asked for a special audit of the medical examiner’s office, and Chief Administrative Officer Tom Jordan then fired the medical examiner’s long-time budget director, Steve Slater. The board is still looking for a chief medical examiner.

Governor Brad Henry has urged the Medical Examiner’s office be merged into the Oklahoma State Bureau of Investigation to save money.  Speaker of the Oklahoma House estimates it will save $5.3 million annually with that merger and the merger of the Oklahoma Bureau of Narcotics and Dangerous Drugs also into the Oklahoma State Bureau of Investigation. However, Representative Randy Merrill, chairman of the house public safety and judiciary appropriations subcommittee, proposes that the Office of the Chief Medical Examiner be moved to the University of Central Oklahoma campus, where the agency can lease a facility built to specification but also maintain its autonomy. This contrasts with a previous push by some to make the agency part of the Oklahoma State Bureau of Investigation.

This recognition of the importance of autonomy for the medical examiner’s office is surprising.  It is also vital, as any Oklahoma criminal defense lawyer can tell you.  The National Research Council of the National Academics of Science, Engineering and  Medicine’s recently published report on the state of forensic science in the United States cites many reasons why the medical examiner’s office should not be part of the Oklahoma State Bureau of Investigation.

That report even urged the establishment of a wholly independent federal agency to address the problems with the current system of forensic science to govern and improve the forensic science community. There is also a need for institutional independence of public forensic laboratories, which the National Research Council found to have a prosecutorial bias.

In times of fiscal want, such as Oklahoma now finds itself, it is difficult to justify any expenditure except the very cheapest.  It is understandable the force to merge the medical examiner’s office into the State Bureau of Investigation.  But without an independent medical examiner, we can expect medical findings to follow the dictates of “law enforcement.”   The lessons of the fiasco with our former medical examiner, Joyce Gilcrest would be lost.

Cause and effect are often too casually connected as connections claimed between them are less then sure in nature.  Given this cautionary proviso, the enactment of one recent law does seem to have achieved its intended success.   Graduated driver’s licenses appear to have lowered fatal accidents in Oklahoma.

Oklahoma enacted the law in 1999, and since that time fatality crashes involving 16 and 17-year-old drivers has dropped from 75 in the year 2000 to 39 in the year 2008.  Accidents generally were also down in that period.  The accidents in question involved a 16 or 17-year-old as at least one of drivers in the accident.

Preliminary data for the year 2009 indicate the number of such accidents was 38, which would be an even greater drop.
The total number of crashes (not just fatal crashes) involving 16- and 17-year-olds dropped from 11,837 in the year 2000 to 7,597 in the year 2008.  The latest highway report shows that from the year 2000 to the year 2008, 16- and 17-year-olds made up 3 percent of the licensed drivers in the state of Oklahoma, but drivers from that age group were involved in 7.1 percent of the accidents and in 4.7 percent of the fatal crashes.

The graduated driver’s license allows 16-year-olds who have had a learner’s permit for six months to obtain an intermediate driver’s license, provided they have logged at least 40 hours behind the wheel, have no traffic convictions, and have passed the driving skills examination of the driver’s test.

The intermediate license allows the 16-year-old to drive except during the hours between 11:00 p.m. and 5:00 o’clock a.m. or at any time when accompanied by a licensed driver who is at least 21 years old.

Things other than age contribute to accidents and need to be addressed.  As criminal defense lawyers know, these issues include avoiding distractions, obeying the speed limits, and wearing seat belts.

Noteworthy from the nine-year study in the years 2000 to 2008 is the statistic that of the 169 teen drivers killed, 58.6 percent were not wearing seat belts.   In those last two years of the study, 2007 and 2008, more than 2 percent of total crashes involved drinking and driving.  In that same two-year period, the primary contributing factor from more than half the crashes was driving at what the reporters determined to be an “unsafe speed, ” with “failure to yield” and “inattention” also significant contributing factors.

The Oklahoma Bureau of Narcotics and Dangerous Drugs (OBN) is the “Drug Enforcement Agency (DEA)” of Oklahoma.  Besides stopping cars with out-of-state license plates and running their drug dogs around the cars, the OBN tracks prescriptions of all pain killer drugs.  Its computer programs assemble all such prescriptions obtained by John Doe, patient, the date, the pharmacy where and when the drug was obtained, the quantity and strength of the drug, and the prescribing physician.

The programs also assemble every prescribing physician in the state, and lists all controlled drugs prescribed to all patients of that doctor, the identify of all those patients, the strength and quantity of each drug, and where and when the prescription was filled.  The plan is to track patients who are obtaining too many controlled drugs (likely from multiple prescribing doctors), and to track doctors who are prescribing too many controlled drugs.

Pain pills give a high, especially when they are ingested immediately rather than through their time-release feature.  Of course, they are addictive, as Rush Limbaugh will testify, and now Sean Sutton will perhaps testify.  Sean Sutton, former Oklahoma State University men’s basketball coach, was arrested a week ago as he took possession of a box of pills in the mail from a fellow-pill user.

Those who are addicted to pain pills, like OxyContin, may go to many different doctors without telling any one doctor they are obtaining the pills from the other doctors.  This way the user can obtain more pills than any one doctor would prescribe.  The data base catches this pattern.

This data base, begun in 1991,  is so comprehensive that it is accessed about 25,000 times per month by doctors, pharmacists and law enforcement to track the type, strength and quantify of potentially addictive pain killers.  Controlled painkillers, anti-anxiety medications and amphetamines are the types of drugs tracked in the data base

Once the drug agents observe the pattern of excessive use, they will use surveillance to collect some more evidence to prove their case.  In Sean Sutton’s case, the police arrested him just as he took possession of a box of pills sent from another person, not a doctor.