Homicide

F-2018-1103

  • Post author:
  • Post category:F

**IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA** **BERT GLEN FRANKLIN,** **Appellant,** **v.** **THE STATE OF OKLAHOMA,** **Appellee.** **Case No. F-2018-1103** **OPINION** LUMPKIN, JUDGE: Appellant, Bert Glen Franklin, was tried by jury and convicted in a consolidated trial of Count 1, First Degree Murder (Child Abuse), and of Count 2, Solicitation of First Degree Murder. The jury recommended punishment of life imprisonment without parole on Count 1 and life imprisonment on Count 2, with the sentences running consecutively. Appellant appeals from this judgment and sentence raising two propositions of error. **PROPOSITION I: Joinder of Charges** Appellant contends that his cases should not have been joined in one trial, asserting that this improper joinder resulted in prejudice. However, as Appellant failed to object at trial, we must review this for plain error, which requires an actual error that is plain or obvious and that affects the Appellant's substantial rights. The statute governing joinder of charges, 22 O.S.2011, § 438, permits the trial of two or more offenses together if they could have been joined in a single indictment. Our analysis is guided by reconciling the factors set forth in previous case law. 1. **Same Type of Offenses:** The charges of murder and solicitation reflect a common theme of violence directed towards individuals involved with the defendant, qualifying them as the same type of offenses. 2. **Proximity in Time:** While the offenses occurred approximately seventeen months apart, the delay was due to Appellant's incarceration. They are sufficiently related given the circumstances under which Appellant acted. 3. **Proximity in Location:** Both offenses were committed within Oklahoma County, suggesting a logical relationship between the two. 4. **Overlapping Proof:** Evidence supporting each charge would have been admissible in separate trials since they are intrinsically linked to Appellant’s actions and intent. Given these observations, we find that the joinder was proper, and Appellant suffered no prejudice; therefore, no error occurred. We deny Proposition I. **PROPOSITION II: Ineffective Assistance of Counsel** Appellant argues that his trial counsel was ineffective for not objecting to the joinder. Under the Strickland test, Appellant must demonstrate both that counsel's performance was deficient and that such performance prejudiced his case. Since we determined in Proposition I that the joinder was appropriate, Appellant cannot show that any failure to object prejudiced his case. As a result, we also deny Proposition II. **DECISION** The judgment and sentence are affirmed. The mandate is ordered issued upon the delivery and filing of this decision. --- **APPEARANCES:** **For Appellant:** R. Scott Adams Box 926 Norman, OK 73070 **For Appellee:** Mike Hunter Attorney General of Oklahoma Theodore M. Peeper, Asst. Attorney General 320 Robert S. Kerr, #505 Oklahoma City, OK 73102 --- **OPINION BY:** LUMPKIN, J. **LEWIS, P.J.:** Concur in Result **KUEHN, V.P.J.:** Recuse **HUDSON, J.:** Concur **ROWLAND, J.:** Recuse --- [Download PDF](https://opinions.wirthlawoffice.com/wp-content/uploads/F-2018-1103_1734788162.pdf) This ruling affirms the conviction and sentences of Bert Glen Franklin and addresses the legal standards regarding the joinder of offenses and ineffective assistance of counsel.

Continue ReadingF-2018-1103

F-2017-1147

  • Post author:
  • Post category:F

In OCCA case No. F-2017-1147, Michael Andrew Nordbye appealed his conviction for Murder in the First Degree (Child Abuse). In an unpublished decision, the court decided to uphold the conviction, concluding that sufficient evidence supported the jury’s verdict. One judge dissented. Michael Andrew Nordbye was found guilty of killing a four-year-old girl named J.H. The jury sentenced him to life in prison without the possibility of parole, and he was also fined $1,000. The case involved disturbing evidence of injuries on J.H.'s body, including bruises and cigarette burns, which suggested she had been abused before her tragic death. On November 15, 2015, J.H. was brought to the hospital but was unresponsive and cold. Doctors tried to save her, but she was declared dead shortly after arriving. The medical examiner determined that J.H. had blunt force injuries and several cigarette burns. They believed these injuries were inflicted shortly before her death. Evidence showed that Nordbye was with J.H. during the hours leading up to her death but his account of the events was inconsistent. During the trial, it was revealed that he had taken her to various places and returned home, where J.H. was later found unresponsive. Witnesses testified about the day of J.H.'s death, including retrospective video surveillance and testimonies that placed Nordbye with J.H. in different locations. The jury was presented with medical evidence indicating the cause of death was homicide due to blunt force trauma, compounded by a possible drug overdose. Despite Nordbye's claims, the jury found him guilty based on the compelling evidence that linked him to the injuries and the timeline leading up to J.H.'s death. Several claims made by Nordbye about improper legal proceedings were dismissed by the court, including issues concerning jury instructions and witness testimonies that were not allowed. The court ultimately found that the trial had been conducted fairly and that the evidence sufficiently demonstrated that Nordbye was guilty of the charges.

Continue ReadingF-2017-1147

F-2017-171

  • Post author:
  • Post category:F

In OCCA case No. F-2017-171, #William Hunter Magness appealed his conviction for #First Degree Child-Abuse Murder. In an unpublished decision, the court decided #to affirm his conviction and sentence. #One judge dissented. William Hunter Magness was found guilty by a jury for causing the death of his 22-month-old son, T.G. The incident happened on November 11, 2013, when T.G. was returned to Magness after spending the day with a friend. Shortly after T.G. returned, Magness called for help because T.G. was in distress. When emergency responders arrived, T.G. had multiple injuries, including bruises and a serious head injury. Tragically, T.G. died a few days later due to severe brain swelling from a large hematoma. During the trial, it was argued that Magness had intentionally harmed T.G., while the defense pointed to possible accidents that could explain the child’s injuries. Medical experts testified about the nature of T.G.'s injuries, and the key issues were whether the injuries were caused accidentally or intentionally. There were disagreements among the experts about the timing and cause of the injuries. Magness raised several arguments in his appeal. He claimed that the state did not prove all elements of the crime beyond a reasonable doubt, that he was not given the proper tools to defend himself, and that important evidence was wrongly excluded. He also asserted prosecutorial misconduct and ineffective assistance of his attorneys. The court reviewed these claims and found that there was enough evidence for a reasonable juror to decide that Magness was guilty beyond a reasonable doubt. They concluded that the trial court had not denied him essential rights or that any errors made did not significantly affect the outcome of the trial. Ultimately, the court upheld the conviction and sentence, stating that Magness would have to serve a significant portion of his life sentence before being eligible for parole.

Continue ReadingF-2017-171

F-2018-622

  • Post author:
  • Post category:F

The opinion you provided appears to be a detailed court ruling from the Oklahoma Court of Criminal Appeals regarding the case of Jasmine Michelle Irvin, who was convicted of First Degree Murder. Below is a summary of the key points from the opinion: ### Case Summary - **Appellant**: Jasmine Michelle Irvin - **Appellee**: State of Oklahoma - **Case Number**: F-2018-622 - **Court**: Oklahoma Court of Criminal Appeals - **Judge**: Cynthia Ferrell Ashwood - **Verdict**: Convicted of First Degree Murder - **Sentence**: Life in prison without the possibility of parole ### Facts of the Case - The victim, Robert Godwin, was found shot to death in a secluded area. - Evidence indicated that Appellant had expressed a desire to have the victim killed and had made attempts to recruit others to help. - Appellant contacted the victim, leading him to the location where he was killed. - The victim suffered multiple gunshot wounds to the back, and information from cell phone data supported the timeline of events leading to the murder. ### Legal Propositions 1. **Waiver of Jury Trial**: Appellant challenged whether she knowingly and intelligently waived her right to a jury trial. The court found that the waiver was clear and the trial court had adequately assessed her understanding of the waiver. 2. **Victim Impact Testimony**: Appellant contended that her due process rights were violated due to the admission of victim impact testimony from a non-family member. The court acknowledged the error but did not find it sufficient to warrant relief since the trial judge was presumed to consider only competent evidence in sentencing. 3. **Ineffective Assistance of Counsel**: Appellant alleged her counsel was ineffective for not ensuring her waiver of the jury trial was valid and for failing to object to the victim impact testimony. The court found no deficiency in counsel's performance. 4. **Accumulation of Errors**: The court addressed Appellant's claim that the cumulative errors denied her a fair trial. It was determined that since no reversible errors were found, the cumulative error claim lacked merit. ### Conclusion - The court affirmed the judgment and sentence of the district court, concluding there were no reversible errors present. - An additional concurrence discussed the standard of review for the waiver of jury trial but ultimately supported the affirmation of the conviction. For more details or to read the full opinion, you may refer to the link provided in your original text.

Continue ReadingF-2018-622

RE-2018-484

  • Post author:
  • Post category:RE

**In the Court of Criminal Appeals of the State of Oklahoma** **Case No. RE-2018-484** **Summary Opinion** **Appellant:** Orville Tabe Keith, Jr. **Appellee:** The State of Oklahoma **Judge Hudson:** Orville Tabe Keith, Jr. appeals the revocation of his concurrent twelve-year suspended sentences following a revocation hearing where the State alleged that he violated probation by committing Manslaughter in the First Degree. **Background:** On March 5, 2009, Appellant pled guilty to two counts of Assault and Battery With a Dangerous Weapon. He was sentenced to twelve years on each count, with the sentences to run concurrently and suspended under specific probation conditions. The State filed a Motion to Revoke on March 23, 2017, based on allegations that Appellant committed Manslaughter in connection with the death of Brandon Martinez during an altercation on June 27, 2015. Evidence presented included DNA matching Appellant to items found at the crime scene and testimony from a neighbor, Donna Underwood, who claimed Appellant admitted to killing Martinez. **Revocation Hearing:** The revocation hearing took place on May 1, 2018. The court reviewed evidence including: - DNA analysis linking Appellant to the crime scene. - Testimony from Underwood about Appellant’s self-incriminating statements. Judge Fry found that Appellant violated his probation conditions, leading to a full revocation of his suspended sentences. **Appellant's Argument:** Keith appeals on the grounds that the evidence presented was insufficient to justify the revocation of his suspended sentences. He challenges the credibility of Underwood's testimony and suggests that another individual, Paul Anderson, may have committed the homicide. **Analysis:** Oklahoma law requires that alleged violations of probation conditions be proven by a preponderance of the evidence. The appeals court found that Underwood's testimony and the DNA evidence were adequate for a rational trier of fact to conclude that Appellant had violated the terms of his probation. **Decision:** The court affirmed the trial court's decision to revoke Appellant's concurrent twelve-year suspended sentences, concluding there was no abuse of discretion in Judge Fry's ruling. **Order:** The order of the District Court of LeFlore County is **AFFIRMED**. **Opinion by**: HUDSON, J. **Concurrences by**: LEWIS, P.J.; KUEHN, V.P.J.; LUMPKIN, J.; ROWLAND, J. --- For further details, you can [**download the PDF**](https://opinions.wirthlawoffice.com/wp-content/uploads/RE-2018-484_1734542820.pdf).

Continue ReadingRE-2018-484

F-2016-375

  • Post author:
  • Post category:F

This document is the opinion of the Oklahoma Court of Criminal Appeals regarding the appeal of James Stanford Poore from his convictions of four counts of First Degree Murder and two counts of Robbery with a Firearm, which occurred in Tulsa County District Court. The jury recommended sentences of life imprisonment without the possibility of parole for the murder convictions and life imprisonment for the robbery charges. The opinion outlines the factual background of the case, including the brutal murders of four victims during a robbery and the subsequent evidence linking Appellant Poore and his brother Cedric Poore to the crime. Key pieces of evidence included witness testimonies, DNA analysis, and ballistic evidence connecting the Poores to both the murders and an earlier robbery. The appellate court addressed several propositions raised by Poore, reviewing the admission of expert testimony, the exclusion of certain third-party perpetrator evidence, the relevance of other crimes evidence, the legality of the search warrant executed at Poore's mother's residence, and claims of ineffective assistance of counsel. After careful consideration, the court concluded that the trial court did not abuse its discretion in admitting the evidence or denying Poore's requests for different evidence and upheld the sufficiency of the search warrant. The court affirmed the judgment and sentence imposed by the district court, providing a detailed legal rationale for its decisions. The final decision includes an order for the mandate to be issued upon the filing of this opinion. The judgment for both the defendant and the state was documented, with all judges concurring in the decision. For those interested in viewing or downloading the original document, a link is provided at the end of the summary.

Continue ReadingF-2016-375

F-2018-184

  • Post author:
  • Post category:F

In OCCA case No. F-2018-184, Juanita Martinez Gomez appealed her conviction for First Degree Malice Murder. In an unpublished decision, the court decided to affirm her conviction. One judge dissented. Juanita, a 49-year-old woman, was found guilty of killing her daughter, Geneva Gomez, who was 33 years old, in Oklahoma City. The events took place in August 2016 after a violent encounter at Juanita's home. Geneva had previously lived with her boyfriend but went to collect her belongings with her mother. The boyfriend later became worried when he could not communicate with Geneva. The trial revealed that when the boyfriend visited Juanita's home, he found Geneva's body. She had severe injuries on her head and signs that she had been beaten. Instead of asking for help, Juanita showed strange behavior, claiming that Geneva was possessed. Evidence showed that Juanita attempted to clean up the crime scene and tried to prevent her boyfriend from leaving. At trial, Juanita did not testify, and her lawyers claimed that her odd behavior and statements meant she did not kill her daughter with intent. The jury, however, found that the evidence showed a clear intention to kill, considering the violent nature of the attack and Juanita's actions afterward. Juanita raised multiple claims of error in her appeal, but the court found that she had not been denied a fair trial. Her statements to the police about her motive for killing Geneva were not allowed in court because they were considered hearsay. The court reviewed the evidence and decided that it was sufficient to support the conviction for malice murder, rejecting Juanita's claims for lesser charges or defenses. The court ultimately affirmed the judgment of the District Court.

Continue ReadingF-2018-184

F-2017-1042

  • Post author:
  • Post category:F

In OCCA case No. F-2017-1042, Vincent Ray Perosi appealed his conviction for First Degree Murder and Assault and Battery with a Deadly Weapon. In an unpublished decision, the court decided to affirm the conviction. One judge dissented. The case began when Perosi, who had recently divorced, was ordered to leave the house he had been living in by January 1, 2016. After that date, his ex-wife, Pamela Perosi, returned to the house with two friends to change the locks because he had not moved out. This led to a confrontation. Perosi shot and killed Pamela and another friend, Buddy Weber, while wounding Karen Priest, who was also present. Perosi claimed he shot in self-defense, saying he was scared of Weber. However, evidence showed that he had a history of threats against his ex-wife and evidence contradicted his version of events. The court ruled that he did not qualify for immunity under the Stand Your Ground law and denied his request for related jury instructions. In reviewing the evidence, the court found sufficient proof to support the convictions, rejecting Perosi's claims of self-defense and that shooting Pamela was accidental. Further, his videotaped confession was admitted as evidence, despite defense claims it was coerced; the court found it was voluntary. In addition, the court allowed testimony about Perosi's bad character and a victim impact statement from Pamela’s family. Ultimately, the court upheld the trial’s decisions and affirmed the conviction, denying any errors raised in the appeal.

Continue ReadingF-2017-1042

F-2017-1103

  • Post author:
  • Post category:F

In OCCA case No. F-2017-1103, the appellant appealed his conviction for first degree murder. In a published decision, the court decided to affirm the judgment and sentence. One justice dissented. Jose Jonathan Rivera-Chavez was convicted of killing Wanda Cooper at a hotel. On December 27, 2016, Cooper went to the hotel office pleading for help while covered in blood. She collapsed shortly after and died from her injuries. Witnesses saw Rivera-Chavez trying to open car doors nearby after the incident. The police found him on the run and apprehended him with help from a police dog. Evidence showed blood on his clothes matched Cooper's. During the trial, Rivera-Chavez claimed he was under the influence of drugs and did not intend to kill Cooper. He admitted to stabbing her multiple times with a knife after becoming paranoid during a drug high. Despite his defense, the court noted that his actions and demeanor suggested he was not severely intoxicated. One key issue in the appeal was whether the court allowed evidence of Rivera-Chavez's silence after being read his rights, which he claimed violated his rights. The court found that this evidence was used properly to address his claim of voluntary intoxication and did not unfairly suggest guilt. The court concluded that even if there had been some error in admitting the evidence, it was harmless because ample evidence showed Rivera-Chavez's intent to kill. The judgment and sentence were ultimately upheld.

Continue ReadingF-2017-1103

F-2012-1029

  • Post author:
  • Post category:F

In OCCA case No. F-2012-1029, Dustin Kyle Martin appealed his conviction for Second Degree Felony Murder and Accessory to Second Degree Murder. In an unpublished decision, the court decided to affirm Martin's conviction for Second Degree Felony Murder but reversed the conviction for Accessory to Second Degree Murder, with instructions to dismiss that count. One judge dissented regarding the classification of being a principal and an accessory to the same crime. Martin was found guilty of both murder and being an accessory, which raised questions about whether one person can be convicted of both for the same crime. The court explained that under Oklahoma law, a person involved in a crime can be considered either a principal or an accessory, but cannot be both for the same offense. The trial court made an error by allowing the accessory charge to remain when Martin was already convicted of murder. During the trial, Martin's lawyers pointed out that he was convicted as a principal for the murder, so being convicted as an accessory to the same murder didn't make sense legally. The prosecution agreed that this was an error. Thus, the court decided to reverse the accessory conviction but kept the murder conviction intact. Martin also argued that there were many other problems during the trial, including mistakes in the jury instructions and the admission of prejudicial evidence, but the court found that these issues either did not affect the verdict or were harmless errors. The judges considered everything and concluded that the conviction for felony murder was supported by enough evidence, while the evidence wasn’t sufficient to support him being an accessory. In summary, the final decision of the court affirmed the murder conviction, while the accessory conviction was dismissed.

Continue ReadingF-2012-1029

F-2012-567

  • Post author:
  • Post category:F

In OCCA case No. F-2012-567, the appellant appealed his conviction for first-degree murder, shooting with intent to kill, and possession of a firearm after conviction of a felony. In an unpublished decision, the court decided to affirm the conviction but modified the sentence for the first-degree murder charge to life imprisonment with the possibility of parole, and the sentence for the possession of a firearm charge to seven years imprisonment. One judge dissented regarding the sentence modification. Mario Lenard Phenix was found guilty of killing Nicholas Martin and injuring Alex Shaw during a dispute on December 31, 2010. The incident involved Phenix, his former girlfriend, and her friends after a night out at a club. Phenix had been angry after his girlfriend ended their relationship, which led to threatening phone calls and ultimately to the shooting. The trial revealed different accounts of what happened that night. Witnesses said Phenix confronted the men with a gun, fired at them, and later, after a struggle, shot Martin again while inside his car. Phenix claimed he shot in self-defense, saying Martin was armed and aggressive. However, the jury rejected this, finding him guilty of murder and other charges. During the trial, Phenix raised several issues on appeal. He argued that he should have been allowed to present a lesser charge of manslaughter. However, because his self-defense claim would have resulted in an outright acquittal if believed, the court found that the jury's instructions were sufficient. Phenix also claimed that the trial process was unfair because the order of presenting evidence might have influenced the jury's decision on punishment. The court agreed that there was a procedural error but found it did not affect the fairness of the trial or the sentence imposed, except for the first-degree murder, which was modified to allow parole. Other arguments related to the introduction of evidence about Phenix's past violent behavior and comments made by the prosecutor during closing arguments were also addressed. The court found no prejudicial errors in these matters that would have affected the trial's outcome. In summary, the decision affirmed the conviction while modifying certain sentences, indicating that, despite some procedural issues, the overall due process was upheld in the trial.

Continue ReadingF-2012-567

F-2010-307

  • Post author:
  • Post category:F

In OCCA case No. F-2010-307, the appellant appealed his conviction for first-degree murder. In an unpublished decision, the court decided to affirm the conviction but vacated the sentence for re-sentencing. One judge dissented, suggesting a modification of the sentence to life imprisonment instead of life without the possibility of parole.

Continue ReadingF-2010-307