Guide for those Suspected of or Charged with First (1st) Degree Murder in Oklahoma
By Tulsa Criminal Attorney Kevin Adams
If you or a loved one have been charged or are suspected of First Degree Murder in the State of Oklahoma this page will provide you with valuable information regarding the actions that need to be taken. Nothing you can do will ensure that you or your loved one will avoid being charged or convicted, but following the guidelines below will increase your chances success.
Finding a Qualified Criminal Trial Attorney
Anyone charged or suspected of homicide needs to contact an experienced criminal lawyer immediately. Not only do they need an experienced criminal attorney they need a trial lawyer, they need an attorney that routinely handles serious criminal cases and a lawyer that has won serious criminal cases at trial. Most criminal lawyers are not trial lawyers because most cases are resolved without trials. Good trial lawyers are difficult to find. There are very few trial attorneys in this state that I would trust a loved one’s or my freedom to. This may be one of the most important decisions you ever make so choose wisely.
Homicide charges require experienced and skillful criminal trial attorneys. Below are 10 factors that will help you determine if the lawyer you are considering hiring is a serious trial lawyer.
Has the lawyer had at least 10 criminal jury trials as lead counsel? Just because a lawyer has tried over 10 criminal jury trials as lead counsel does not mean that they are any good at it, but you will weed out a lot of bad inexperienced lawyers by only hiring a lawyer that has had at least 10 criminal jury trials as lead counsel. Oklahoma Courts have very good resources so that with a name and a case number you can verify what you are being told.
How many jury trials has that lawyer won as a defense attorney? This is a vital question to ask. It is also to distinguish between trials won as a defense attorney and trials won as a prosecutor. Prosecutors win most of their cases at trial because they pick the cases that proceed to trial and pick the cases that they settle. If a lawyer tells you that they are a former prosecutor and that they tried 20 jury trials and won everyone of them that is not that much of an accomplishment. Winning a trial as a defense lawyer is much more difficult than winning as a prosecutor.
Also even good criminal trial attorneys often lose more than they win. If a criminal defense lawyer takes difficult cases to trial you have to expect that lawyer to lose more than they win. In my opinion a criminal lawyer that has had over 10 jury trials and has a win ratio that would be considered to be a good batting average has a pretty good track record.
Get a list a of jury trials the lawyer has won so you can verify what he or she is telling you. People can tell you anything but ask for a list so that you can verify what the lawyer is telling you.
Does the lawyer go to Federal Court? Whether a criminal lawyer handles cases in Federal Court is a big dividing line among lawyers. Just because a lawyer does not go to Federal Court does not necessarily mean they are not a good lawyer, but I would be cautious in hiring any criminal lawyer to handle a homicide case that does not have significant Federal criminal law experience. The reason is that more is expected of a lawyer in Federal Court. Lawyers are not allowed to get away with filing frivolous motions, or filing “canned” one page motions, or missing deadlines. Lawyers that engage in this type of behavior in Federal Court will eventually be run off by the Federal judges.
Does the lawyer handled criminal appeals? A good trial lawyer not only has to be a good advocate in front of the jury the lawyer must understand the law and understand how to make a record for appeal in the event that the case is lost at trial the first time. With a homicide charge having a lawyer that can both successfully handle a jury trial and successfully handle an appeal gives someone facing a murder charge a better chance of winning than only having a lawyer that handles trials.
Has the lawyer ever handled and death penalty cases? This is not a must to for finding a qualified criminal attorney to handle a murder charge, but it is certainly a plus. Death penalty cases are a specialized area of the law, but generally only your more serious and experienced lawyers will handle them.
Does the lawyer write serious motions or just file “canned” form motions? Ask to see some of the lawyers writings. Is the motion over 2 to 3 pages? Is the lawyer actually arguing the law and applying the law to the facts? Or is the lawyer just asking the judge to do something without any legal analysis? Serious lawyers write serious motions and serious briefs.
What steps has the lawyer taken to improve their trial abilities? Representing someone on a murder charge is a great responsibility. What steps has that lawyer taken to improve his or her skills as a trial lawyer? Their are a number of classes, schools and seminars around the country that lawyers can attend to improve their skills as a trial lawyer. Has the lawyer attended any of these classes, schools or seminars. What types of books has the lawyer read regarding trial practice? Can the lawyer name any of those books?
Has the lawyer received any independent recognition for their abilities? Have they been recognized by a criminal defense organization for their work. Have they been rated by an independent lawyer ratting service. (Martindale.com is the most reliable in my opinion)
If you evaluate the lawyer you are considering hiring using the 10 factors listed above you should get a pretty good idea of the type of lawyer that you are considering. You can also read Tips for Hiring a Criminal Lawyer.
An Overview of First Degree Murder in Oklahoma
The Oklahoma Statute that covers First Degree Murder in the State of Oklahoma is Title 21 O.S. Section 701.7. Oklahoma statutes provide that there are four (5) ways to commit homicide in our state. The three most common types of First (1st) Degree Murder charges that are filed in Oklahoma are 1. Malice Aforethought Murder 2. Felony Murder and 3. Child Abuse Murder. Each way is explained below:
Malice Aforethought Murder
Malice Aforethought Murder is what most people think of when they think of First (1st) Degree Murder. Title 21 O.S. Section 701.7 (A) defines this type of murder as:
A person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.
In some states this is referred to as “Premeditated Murder”. Oklahoma uses “Malice Aforethought” instead of “Premeditated Murder”. “Malice Aforethought” is defined as:
“Malice aforethought" means a deliberate intention to take away the life of a human being. As used in these instructions, “malice aforethought” does not mean hatred, spite or ill-will. The deliberate intent to take a human life must be formed before the act and must exist at the time a homicidal act is committed. No particular length of time is required for formation of this deliberate intent. The intent may have been formed instantly before commission of the act. (See Oklahoma Uniform Jury Instruction CR-4-62)
So to Convict Someone of Malice Aforethought Murder in Oklahoma the prosecution must prove the following:
No person may be convicted of murder in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, the death of a human;
Second, the death was unlawful;
Third, the death was caused by the defendant;
Fourth, the death was caused with malice aforethought.
(See Oklahoma Uniform Jury Instruction CR-4-61)
All First (1st) Degree Murders are felonies. But, when the term “Felony Murder” is used it means that the death resulted from the commission of an enumerated felony. For example if a defendant robbed a liquor store and a death resulted from that robbery the law says that deaths a First (1st) Degree Murder. Even if the defendant never intended on hurting anyone. A defendant could be convicted of Felony Murder if during the robbery the clerk had a heart attack and died. Or if during the robbery the clerk attempted to shoot the robber and accidentally shot a customer. Or a common scenarios is a defendant is driving a get away car and his co-defendant robs a store and kills a clerk, in that circumstance both the driver and the shooter could be convicted of Felony Murder. Felony Murder in Oklahoma is defined by Title 21 O.S. Section 701.7 (B) as:
A person also commits the crime of murder in the first degree, regardless of malice, when that person or any other person takes the life of a human being during, or if the death of a human being results from, the commission or attempted commission of murder of another person, shooting or discharge of a firearm or crossbow with intent to kill, intentional discharge of a firearm or other deadly weapon into any dwelling or building as provided in Section 1289.17A of this title, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, eluding an officer, first degree burglary, first degree arson, unlawful distributing or dispensing of controlled dangerous substances or synthetic controlled substances, trafficking in illegal drugs, or manufacturing or attempting to manufacture a controlled dangerous substance.
Child Abuse Murder
Under Oklahoma law the death of a child that results from child abuse is First (1st) Degree Murder. Child Abuse Murder is defined by Title 21 O.S. Section 701.7 © as:
A person commits murder in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall willfully cause, procure or permit any of said acts to be done upon the child pursuant to Section 843.5 of this title. It is sufficient for the crime of murder in the first degree that the person either willfully tortured or used unreasonable force upon the child or maliciously injured or maimed the child.
Child Abuse Murder charges are most commonly seen with shaken baby cases. These are very difficult cases and in my opinion the most difficult type of criminal case to handle other than Death Penalty cases.
Punishment for First Degree Murder in Oklahoma
Oklahoma has some one of the harshest punishments for First (1st) Degree Murder in the country. In Oklahoma the minimum for First (1st) Degree Murder is Life. A Life sentence in Oklahoma means the defendant must serve 38 Calendar years before being eligible for parole. Murder also carries the possibility of a sentence of Life Without Parole which means a defendant never gets out of prison. And in some circumstance the punishment for First (1st) Degree Murder is Death.
The statute that controls the punishment for First (1st) Degree Murder in oklahoma is Title 21 O.S. Section 701.9.
Common Defenses to First Degree Murder
The defenses available to a defendant charged with Homicide vary depending upon the facts of the individual case. Of course if another person committed the homicide that certainly may serve as a factual defense. However, there are also other legal defenses available to an individual charged with a homicide. Some of the most common defenses are;
Self Defense —a person is justified in using deadly force in self-defense if that person reasonably believed that the use of deadly force was necessary to protect himself/herself from imminent danger of death or great bodily harm.
Self Defense (Battered Women Cases) — a person is justified in using deadly force in self-defense if that person reasonably believed that the
use of deadly force was necessary to protect herself from imminent danger of death or great bodily harm. Self-defense is a defense although the danger to the life or personal security may have not been real, if a person, in the circumstances and viewpoint of the defendant would reasonably have believed she was in imminent danger.
Defense of Another —a person is justified in using deadly force in defense of another if that person reasonably believed the use of deadly force was necessary to protect that person from imminent danger of death or great bodily harm.
Burden of Proof in Defense of Self & Defense of Another — in order to convict a defendant the state must prove beyond a reasonable doubt that the person was not acting in self-defense or defense of another when committing the act that caused the death.
Mitigation to a lesser degree of Homicide —
Frequently, district attorneys will file the most serious charge the evidence could possibly justify. Oftentimes, a sound trial strategy will include mitigating a homicide from 1st Degree Murder down to a lesser degree of Homicide. While mitigating a Homicide to a lesser degree may require a defendant to go to prison, it can result in a greatly reduced sentence and often times can mean the difference between a defendant being released from prison one day in the future or spending the rest of his or her life incarcerated.
Reduction with a Plea Agreement
Sometimes a First Degree Murder charge can be reduced to 2nd Degree Murder with a sentence less than a life sentence through a plea agreement with the prosecution. These pleas are most likely to occur when the state prosecutor realizes that he is facing a zealous defense attorney that is prepared to try the case to a jury.
Results Obtained by Kevin Adams with First Degree Murder Cases
February 2003 Tulsa County District Court
Jury Verdict of Acquittal on the sole charge of First Degree Murder. State of Oklahoma v. Ahmod Rashaud Henry, CF-2002-151. The state had 2 eyewitnesses that testified that Mr. Henry was the killer. However, through effective cross examination Mr. Adams showed their testimony to be untruthful. The jury deliberated approximately 1 hour after a week long trial before returning a verdict of not guilty. The trial had to be stopped on the afternoon of the third day so that Mr. Adams could be present with his wife during the birth of their daughter. (Read the Tulsa World Article)
April 2003 Mayes County District Court
Jury Verdict of Acquittal on the charge of First Degree Murder. State of Oklahoma v. John Edward Schoonover, CF-99-271A. Mr. Schoonover was previously convicted of First Degree Murder which was overturned on appeal. Kevin Adams represented Mr. Schoonover at the retrial and he was acquitted of First Degree Murder. However, Mr. Schoonover was convicted of accessory after the fact of a felony and given a seven year sentence. Mr. Adams represented Mr. Schoonover on appeal and that conviction was also overturned by the Oklahoma Court of Criminal Appeals. (Read the Opinion)The state of Oklahoma dismissed the case against Mr. Schoonover and did not attempt to retry him for a third time.
October 2003 Tulsa County District Court
First-Degree Murder Case Dismissed on Defense's Motion. State v. Mason; CF-2003-1612. District Judge Jesse Harris ordered the first-degree murder charges against Ronald Mason, Jr. dismissed after he agreed with the defense that there was insufficient evidence to order the case to trail. (Read the Tulsa World Article)
November 2004 Tulsa County District Court
Jury verdict of Not Guilty on the charge of First Degree Murder and Second Degree Murder. State of Oklahoma v. Anthony Eric Kirby. CF-2003-5246. The state had 5 eyewitnesses. The only witness the defense had was Anthony himself. However, through the use of physical evidence, effective cross examination and logic Mr. Adams was able to prove that the state's witnesses were either mistaken or lying. After a six day trial the jury deliberated for an hour and a half before finding Anthony not guilty. This was a one of Mr. Adams most difficult cases.
September 2005 Tulsa County District Court
A non-death jury verdict. State of Oklahoma v. Christopher Lay, CF-2004-2320. Christopher Lay and his father, Wade Lay, were tried for the May 24, 2004 bank robbery of Mid First Bank located in Tulsa. During the robbery the security guard was shot and killed. There was no doubt as to Christopher and his father's guilty. Christopher testified during the trial that he attempted to rob the bank in order to obtain funding so that he could buy better weapons and kill those that he and his father felt were responsible for Waco and Ruby Ridge. A list created by Christopher and his father that included United States Senators and Congressmen along with numerous law enforcement officers from the ATF and FBI. This list was seized by law enforcement officials and introduced during the trial. The objective of this trial was to save Christopher's life. After an eight day jury trial Mr. Adams and his co-counsel, Rob Nigh, were able to save Chris's life. Wade received the death penalty. Mr. Adams did not represent Wade Lay.
November 2005 Tulsa County District Court
Jury verdict of Not Guilty on the Charge of First Degree Murder in the case of State of Oklahoma v. Ernest Zollicoffer, CF-2004-2968. Ernest was instead convicted of 2nd Degree Murder and given 25 years. Ernest will be released after approximately 20 years in prison. Ernest was charged with strangling his former girlfriend . There was no doubt that Ernest was responsible for his former girlfriend's death, he testified that he strangled her. The issue was one of intent. This is a good result, a conviction on First Degree Murder would have meant a minimum of a life sentence, or 38 calendar years and 3 months before becoming eligible for parole. Mr. Zollicoffer was satisfied with the result and chose not to appeal his conviction to the Oklahoma Court of Criminal Appeals.
March 2006 Tulsa County District Court
Donnell Barker was charged with first Degree Felony Murder in Tulsa county Case No. CF-2003-5072. Donnell had confessed to participating in a robbery in which a convince store clerk was murdered. Donnell was not the shooter. After almost two (2) and one-half years (½) Mr. Adams was able to resolve this case with a reduced plea of 25 years to a charge of Second (2nd) Degree Murder.
June 2006 Tulsa County District Court
Death Penalty Case Resolved with a non-death resolution. State v. Jordan; CF-2004-2805. Alvin Jordan was charged with First-Degree Murder, Robbery, and 2 counts of Shooting with Intent to Kill for the robbery of First Fidelity Bank the murder of a bank teller and the shooting of the bank president and a customer inside the bank. The state filed a Bill of Particulars seeking the Death Penalty against Mr. Jordan. Mr. Adams raised mental retardation as a defense to the Death Penalty in accordance with the U.S. Supreme Court's decision in Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and the Oklahoma Court of Criminal Appeals opinion in Blonner v. State, 2006 OK CR 1, 127 P.3d 1135, 01/05/2006. Through negotiations with the Tulsa County District Attorney’s office, Mr. Adams was able to save Mr. Jordan's life by resolving the case with a non-death plea.
October 2006 Tulsa county District Court
Melonie Totty was charged with First Degree Felony Murder in the death on Richard Briggs. Mr. Adams was able to resolve the case with a plea to the reduced charge of Second (2nd) Degree Murder and a sentence of 20 years. Ms. Totty should be released when she is approximately 40 years old instead of being released when she was in her 60s.
September of 2009 Tulsa County District Court
In this case Mr. Adams represented Jonathan Curry who was accused of First Degree Murder in tulsa County Case No. CF-2008-3834. If convicted Mr. Curry would have received a minimum of a life sentence, which in Oklahoma means 38 calendar years before becoming eligible for parole. On the day of trial the prosecution offered Mr. Curry a deal of a no contest plea to the non-85% crime of accessory after the fact and a term of 15 years. Mr. Curry should be home within 5 to 6 years instead of a minimum of 38 years. There is always a risk in proceeding to jury trial and sometimes accepting a favorable plea is the right thing to do; but the best plea deals often come when a lawyer is ready, willing and able to put the state to the test.
August 2010 Tulsa County District Court
Derrick Mills was charged in Tulsa County Case No. CF-2009-2771 with the First Degree Murder in the shooting death on Matthew Crotts with a shotgun on Memorial Day of 2009. As the case approached trial Mr. Adams was able to resolve the case with a plea to the reduced charge of Second (2nd) Degree Murder and a sentence of 25 years. This will ensure Derrick is released from prison by the time he is in his early 40s.
August 2012 Tulsa County District Court
In Tulsa county Case No. CF-10-3167 Brandon Hall was charged with the murder of Samita Gibson after her body was found in the trash can of a local church. Law enforcement alleged that after she was killed that Ms. Gibson’s body was kept in a closet for several days. Despite Mr. Hall confessing to this crime Mr. Adams was able to negotiate a plea to the reduced charge of Second (2nd) Degree Murder and a sentence of 35 years.
Disclaimer: Kevin D. Adams only provides legal advice after having entered into an attorney client relationship, which this website specifically does not create. Only after having entered into a representation agreement with Kevin D. Adams will an attorney-client relationship have been created. It is imperative that any action taken by you should be done on advice of legal counsel.* Because every case is different, the descriptions of outcomes and cases previously handled are not meant to be a guarantee of success.
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