Tulsa Criminal Defense Attorney | Highly Respected | Cale Law Office
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The defendant argued that there should be a cautionary instruction as to eyewitness modification. Reason for this is to attack the credibility concerning eyewitness edification there are numerous reasons for this. One, the witness was not in a position to clearly observe the assailant. Secondly, the witness was not certain as to identity. Thirdly a witnesses identification becomes weak by qualification for failure to identify the defendant on one or more prior occasions. Fourth, the witnesses accuracy is doubtful. And lastly, there’s some question as to the accuracy of the witness’s prior description of the assailant.
The defendant failed to request an instruction on eyewitness defecation. The order to request instruction operates as a waiver less the court is convinced that under the facts of the particular case, the failure to instruct resulted in a substantial violation of the accused rights. If the factors listed above are not present, the Custer instruction is not necessary. The case at hand, both the victim and his mother saw the defendant for at least five minutes in good light. The victim was face-to-face with the assailant.
Plus, the victim never lost consciousness after being shot and dumped in the bathroom. He continued to view his assailant. Both witnesses testified that they were positive about their identification of the defendant. In a witness previously failed to identify the defendant. Both witnesses remained positive of their identification, even if cross-examination.
The prior description of the defendant did not reveal any inaccuracies. The drilling jury was fully informed that the evidence was controverted whether the second rubber did or did not wear a mask. However, under the facts of this case, a cautionary instruction on eyewitness edification was not necessary. The trial court’s failure to provide this instruction did not violate the defendant’s constitutional rights.
Additionally, the defendant relied on the U. S. Supreme Court case the role that the confrontation clause requires the state to make a good-faith effort to obtain the presence of a witness at trial. This must be done before his preliminary hearing testimony can be used. The Oklahoma Court of Criminal Appeals set forth the following standards. If the prosecution seeks to introduce a preliminary hearing transcript, then it must prove two things. First, the must prove the actual unavailability of the witness despite the good faith and due diligence efforts to secure the presence of the witness at trial. Secondly, the transcript of the witness’s testimony must pay her sufficient indicators of reliability to for the trier of fact to evaluate the truth of the prior testimony.
Tulsa criminal defense attorney Stephen Cale said that the purpose of the preliminary hearing is twofold. First, the court will decide whether not a crime was committed. Secondly, the judge will determine whether not there is sufficient evidence that the defendant committed the crime. However, the judge does not determine guilt or innocence. There is a different standard of proof for a preliminary hearing.
Preliminary hearings applied to felony cases, said Tulsa criminal defense attorney Stephen Cale. As part of the strategy, attorney Cale almost never waives a preliminary hearing. That’s because the hearing will review the evidence that the state has and how a witness will testify. There are some drawbacks to this hearing nonetheless. A judge can add additional accounts to the charge if he finds sufficient evidence to do so.
The defendant also argued that the trial court should have instructed the jury on the lesser included offense of assault battery with a dangerous weapon. The Oklahoma Court of Criminal Appeals disagreed. Assault battery with a dangerous weapon has long been recognized Oklahoma as a lesser included offense of shooting with intent to kill. If the circumstances regionally indicating a lack of intent to kill, the failure to instruct on the lesser included offense deprives the accused of a federal right. In this case, the defendant shot the victim a close range of the stomach.
The bullet entered a vital organ. During the robbery while the victim was on his knees he the defendant not to his mother. The victim then drifted to the bathroom where he was dumped into the tub. A rational trier of fact could have found that the defendant intended to kill the victim under the circumstances. Therefore, under previous case law, the court cannot reverse the conviction on the basis that the court refused to include the lesser included offense.
The defendant asserted that because the officers preliminary hearing testimony contains references that the defendant exercises right to remain silent, that his conviction should be reversed. He argued that this was a fundamental error. The Oklahoma Court of Criminal Appeals disagreed. The question of the preliminary hearing was whether the defendant made any statement the time of his arrest. Defense counsel asked this question on cross-examination the officer merely responded that he did not. Additionally, the prosecution did not exploit a trial the appellant’s refusal to give up his right to remain silent.
Lastly, the defendant argued that charging with both pointing a firearm and caring a weapon constituted double jeopardy. His argument was that carry a weapon was lesser included offense. The appellate court said that this argument was frivolous. The defendant carried to weapons of time of his arrest. The pistol was looked at the time as was the high-caliber pistol. Police found both. Tulsa criminal defense attorney Stephen Cale is an excellent lawyer.