Date: 11-04-2014

Case Style: State of Oklahoma v. Thomas Anthony (Tony) Cooper

Case Number: CF-2014-1986

Judge: Mark Barcus

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Kevin Gray

Defendant's Attorney: Allen Smallwood

Description: Tulsa County, OK - The State of Oklahoma charged Thomas Anthony (Tony) Cooper, age 31, with:

Count # 1.
Count as Filed: SWIK, SHOOTING WITH INTENT TO KILL , in violation of 21 O.S. 652A
Date Of Offense: 02/06/2014

THOMAS ANTHONY COOPER, on or about 2/6/2014, in Tulsa County, State of Oklahoma and within the jurisdiction of this Court, did commit the crime of SHOOTING WITH INTENT TO KILL, a Felony, by unlawfully, feloniously, willfully, knowingly, and intentionally, attempt to kill one Houston Wayne Brown by then and there shoot him with a firearm, to-wit: a gun the same being a deadly weapon loaded with gunpowder and shot, held in the hands of said defendant and which he wrongfully and intentionally pointed, aimed and fired at the said Houston Wayne Brown the bullet therefrom, striking, penetrating and causing wounds in the body of the said Houston Wayne Brown, with the unlawful, wrongful, willful and felonious intent then and there on the part of said defendant to kill Houston Wayne Brown.

Defendant made the following discovery request:

The above-named defendant, through counsel, moves this Court, pursuant to
22 O.S. § 2001, to order the State of Oklahoma to produce for inspection and copying the following, which are known to, or in the possession of, the State of Oklahoma or any of its agents, or which through due diligence would become known from the investigating officers or witnesses or persons having knowledge of this case. This matter is currently scheduled for a district court arraignment on Thursday, October 30, 2014, at 9a.m.
The defendant respectfully requests the State of Oklahoma to disclose the following information:
L (a) The names, addresses, and telephone numbers for persons having knowledge of the facts or relevant information concerning this case.
(b) The names and addresses of witnesses, whether called in the State’s case-in-chief or in rebuttal, together with their relative oral, written and/or recorded statement, or summaries of the same;
(o) The names and address of any and all persons having knowledge of the circumstances of this case, or who were interviewed by the Government or its agents in connection with this case.
(d) The identity, all known aliases, and the whereabouts of any person who supplied the State with confidential information which led to the arrest of the defendant.
(e) The names and addresses of all identification witnesses in this case.
(f) The time and place of any photographic and/or corporal identification by identification witnesse&
(g) Any and all written notes of any statements made by any identification witness who viewed the alleged defendant in a line-up, show-up, or photographic show-up.
2. (a) Any and all written and/or recorded statements made by or purported to be made by the defendant, either before or after the defendant’s arrest, either to State agents or to third parties, whether or not the State intends to introduce such statement at trial, and the substance of any oral statements made by the accused.
(b) The substance of any oral statement attributed to the defendant, whether made before or after the defendant’s arrest, whether or not the State intends to introduce evidence of such statement at triaL
(c) Any and all tape recordings of telephone conversations including transcripts, to which the defendant is purported to be a party.
(d) Any and all documents, instruments, or forms of any kind signed, or purported to have been signed, by the defendant.
(e) The original of any and all tape-recordings of conversations (telephonic, live, radio transmitted, or by other means) between the defendant and any law enforcement agent investigating the defendants in this matter or any other matter.
3. (a) Any and all written statements of (1) any witnesses concerning the subject matter of this case, the transaction in question, the defendant (2) the condition and situation existing at the scene of the alleged offense.
(b) Any and all offense reports.
(c) Any reports or statements made by experts in connection with the particular case, including the results of physical or mental examinations and of scientific tests, experiments, or comparisons, and any and all memoranda, reports, summaries, records, or documents reflecting the results of laboratory tests performed, whether or not the State intends to utilize the results of same at trial, where the foregoing results are in the possession, custody, or under control of the State.
(d) Any results of fingerprint tests conducted which relate to the subject matter of the instant case, whether or not the State intends to utilize the test results at the time of trial, where the foregoing results are in the possession, custody, or under the control of the State. Such information or results should include any reports or statements made by experts in connection with the particular case, including the results of physical examinations and of scientific tests, experiments, or comparisons, and any and all memoranda, reports, summaries, records, or documents reflecting the results of laboratory tests performed, whether or not the State intends to utilize the results of same at trial, where the foregoing results are in the possession, custody, or under the control of the State.
(e) A copy of each search warrant and each affidavit in support thereof, each arrest warrant and each affidavit in support thereof and/or other process utilized in the present case.
(f) Any and all oral statements or memoranda, summaries, recordings, stenographic recordings, telephonic recordings and/or transcriptions of the foregoing of any witnesses or persons, whether or not the oral statements (in whatever form) are admissible at trial and/or relate to the testimony of the witnesses at trial (if called to testify).
(g) An inventory of all items seized in relation to the investigation of this matter. (This request shall include but not be limited to all original inventories, drafts of inventories, and notes taken by all law enforcement officers during each and every search of the defendant’s automobile, person, or at the scene of arrest.
(h) Any and all waivers signed by the defendant, including but not limited to a waiver to search the automobile, or for questioning pursuant to Miranda.
(i) All items seized during py search of the defendant’s automobile, person, or scene of arrest between then and the present. (Such items shall include, but not be limited to, all items noted on the inventory and any other items seized by law enforcement agents and/or any other person on the scene during the various searches of the defendant’s person, automobile, and scene of arrest.)
(j) Any and all contraband (including, but not limited to, controlled dangerous substances, chemicals, drug paraphernalia, glassware, and any other contraband) and all containers seized from the defendant’s person, automobile, or at the scene of arrest in regard to this investigation.
(k) All law enforcement reports, charts, diagrams, photographs, or other written documents (including computer tapes, graphic information, and other electronically stored or recorded information) made pursuant to this investigation on which attorney work product is not claimed.
4. (a) Any and all books, papers, documents, written statements, accounts, letters, photographs, tapes (including, but not limited to, audio and video), films, weapons, bullets, or any tangible object or thing, building or places, whether exculpatory or inculpatory for the defendant, that were solicited, obtained, or seized by any person or agency from the defendant or belonged to the defendant, whether or not said tangibles are utilized by the State during any
aspect of the investigation of this case, where said tangible objects or things are in the possession, custody or control of the State.
(b) Any and all books, papers, documents, written statements, accounts, letters, photographs, tapes (including, but not limited to, video and audio), films, or any other tangible objects or things, whether exculpatory and inculpatory for the defendant, that were solicited, obtained, or seized by any person or agency from any complainant or witness to this case, or belonged to the witness, whether or not said tangibles are utilized by the State during any aspect of the investigation of this case, where said tangible objects and things are in the possession, custody, or control of the State.
(c) Any and all books documents, written statements, accounts, letters, photographs, tapes (including, but not limited to, video and audio), films, weapons, bullets, or any other tangible object or thing, whether exculpatory or inculpatory to the defendant, that were solicited or seized by any person or agency from the scene of the alleged offense, whether or not said tangibles are used by the State during any aspect of the investigation of this case where said tangibles and things are in the possession, custody, or control of the State.
5. A copy of all arrest warrants, bench warrants, or civil warrants upon which the arresting officer(s) alleged relied in affecting the arrest of this defendant which resulted in the instant charges.
6. A copy of pictures, photographs, snapshots, mug shots, movies, films, videotapes, or other replicas or likenesses of the defendant made at the time of arrest or any time subsequent to the arrest of the defendant.
7. Any and all evidence in the form of tapes (including but not limited to video and audio) and/or wire recordings or transcriptions of conversations to which defendant, complaining witness, or any other witness, was a party, which recordings were obtained as a result of bugging, electronic eavesdropping, or wire tapping, including conversations overheard or evidence secured as a result of such conversations.
8. Counsel requests the State of Oklahoma produce all phone number information, internet information, social media/networking information, with respect to the alleged victim in this case, Houston Wayne Brown,
9. Counsel requests the State of Oklahoma produce any blood test results with respect to the alleged victim in this case, Houston Wayne Brown, during his initial intake and/or treatment as a result of the injuries he received as alleged in this matter.
10. Counsel further requests the State of Oklahoma produce any blood test results with respect to the alleged defendant in this case, Anthony Wayne Cooper, after his arrest in this matter.
11. Any record of prior criminal convictions of the defendant, including, but not limited to, OSBI or FBI rap sheets/records check.
12. OSBI or FBI rap sheets/records check on any witnesses listed by the State or the defense as possible witnesses who will testify at trial.
13. Any material or information within the State’s possession or control which tends to negate the guilt of the accused as to the offense charged or which would tend to reduce the punishment of the accused. The defendant hereby requests all favorable information or exculpatory information in the possession or control of the State. This request for favorable information and exculpatory information (whether or not admissible)1 includes, but it not limited to:
(a) Distinctions between testimony at the preliminary hearing or material points and
statements given to police or other law enforcement officers or the District Attorney’s Office;
(b) Differences in identification given to law enforcement and testified to at preliminary hearing;
(c) Any and all books, papers, documents, statements, results of scientific or forensic tests, photographs, video or audio tapes, films or movies, or tangible objects, which are in the possession, custody, or control of the State which are material to the preparation of the defendant’s defense including, but not limited to, all currency, documents, instruments, or other writings obtained from the defendant.
(d) Any evidence that someone else may have been involved;
(e) Any and all exculpatory or inculpatory written and/or oral confessions or statements or admissions (whether or not reduced to writing) presently in the possession, custody, or under the control of the State, its agents or agencies, made by the defendant to an agent of the federal government and/or any state, county, or municipal government, said statements, confessions, or admissions being made at any time.
(f) Any and all statements of defendant and State witnesses, including statements which are in conflict with each other and in conflict with other information known to State prosecutors and/or investigative agents, or which are exculpatory as to the moving defendant.
(g) Previous convictions or bad reputation of any of the State’s witnesses.
14. Copies of any and all written notes of any other individuals, which relate in any way to the allegations contained in the charges lodged against this defendant.
15. Pursuant to 22 0.S. § 749, the defendant requests that the State produce all sworn statements taken by law enforcement agencies.
16. Pursuant to White v. State, 19720K CR 165, 498 P.2d 421, the defendant requests the State produce all unsworn statements of the defendant, recorded or written.
17. Pursuant to 12 D.S. § 2613, the defendant respectfully requests all statements of witnesses, including but not limited to unsworn statements by witnesses.
18. The defendant respectfully requests the State to identify any promises of leniency made to any witnesses in exchange for their testimony, including the substance of any and all statements or discussions had with any informant in this case, or with any such persons’ counsel indicating a promise or suggestion of leniency, compensation, assurance not to prosecute, agreement to proceed only on certain counts of an indictment or information, representations with respect to yet uncharged misconduct, or any benefit whatsoever occurring to said individuals in exchange for their cooperation, assistance, or testimony at the trial of this case. Any promises or suggestions relating to tax returns or tax benefits (state or federal) are included in this request.
19. Records of any payment or compensation or reimbursement of expenses to any individual, including all information set forth in paragraph 18 above.
20. Any and all examination reports prepared by any State agency including, but not
limited to, the Oklahoma State Bureau of Investigation, and the Oklahoma Bureau of Narcotics and Dangerous Drugs.
21 The discovery requests outlined above shall extend to material information in the possession or control of the State, members of the prosecutor’s staff and any others who regularly report or, with reference to the particular case, have reported to the prosecutor’s office.
Memorandum of Law
Counsel relies, as legal authority
for this Motion, on 22 OS. § 2001, et q.

Motion To Quash Evidence Adduced at Preliminary Hearing and Memorandum of Law in Support

Allen M. Smaliwood, counsel for the above-named defendant, moves this Court to quash the evidence adduced at the preliminary hearing as being insufficient to establish probable cause that this defendant committed the felony count alleged against him. In support of this Motion counsel states:
1. This defendant is charged by way of felony information in CF-2014-1986 with shooting with intent to kill (Count 1 — Felony), a violation of 21 O.S. § 652(A), alleging he shot and attempted to kill one Houston Wayne Brown (hereinafter ‘Brown”).
2. On September 3, 2014, a preliminary hearing was held in this case in which the magistrate found probable cause this defendant committed this crime based upon the evidence adduced from two witnesses. The magistrate’s decision was grounded, at least in substantial part, upon an erroneous finding that while the defendant was a legal resident of the residential structure in question, since the shooting did not occur in “the defendant’s room” the presumption afforded him in 21 OS. § 1289.25, did not apply and the magistrate bound him over on the crime as alleged, shooting with intent to kill, in violation of 21 0.5. § 652(A).
3. A district court arraignment is currently scheduled for Thursday, October 30,
2014, at 9a.m. The defendant is currently free on bond.
4. Counsel moves to quash the evidence adduced at the preliminary hearing as being insufficient to establish that shooting with intent to kill was alleged, as the evidence failed to overcome the presumptions afforded all citizens under 21 OS. § 1289.25, after the defendant was physically attacked by the alleged victim, Brown, and any actions committed by the defendant, including shooting a firearm into Brown, was fully justified under the provisions of
21 0.5. § 1289.25.
5. Pertinent evidence adduced at the preliminary hearing can be summarized as follows:
HOUSTON WAYNE BROWN - Direct
A. He testified the defendant, Anthony Wayne Cooper (hereinafter “Cooper”), was a legal resident of the structure where the incident occurred (8325 North 120th East Avenue, Owasso, Tulsa County, Oklahoma 74055), and he was there as a guest (PH Tr. 8—11).
B. He took a shower and, without Cooper’s permission put on a pair of Cooper’s clothes and asked him after the fact if that was o.k. (PH Tr. 13— 14).
C. He found the gun in the room where Cooper’s clothes were and since the other roommate, Kevin Aron Cole (hereinafter “K.C.”), had just gotten out of prison on a gun charge, he wanted to tell K.C. about that (PH Tr. 14).
D. He vaguely remembered Cooper swinging at him after they got into an argument but doesn’t remember anything else (PH Tr. 18).
HOUSTON WAYNE BROWN — Cross-Examination
E. He used marijuana on the street and had used marijuana recently. He was on prescription painkillers, Alprazolam, Oxycontin/Oxycodone, which he was taking every four to six hours throughout the day (PH Tr. 23— 24).
F. He didn’t believe he was using methamphetamine but probably was using marijuana (PH Tr. 24).
S He had several felony convictions, including possession of a firearm after commission of a felony, assault with a dangerous weapon, and assault and battery with a dangerous weapon (PH Tr. 26— 28).
H. He probably smoked marijuana the morning of February 6, 2014 (the day of the shooting) (PH Tr. 29).
I. He acknowledged he was not a legal resident of the structure where the shooting occurred (PH Tr. 30).
J. He acknowledged he understood Cooper had paid money to K.C. for Cooper to be a legal resident of the structure where the shooting occurred (PH Tr. 31).
K. He acknowledged Cooper’s property was in an upstairs bedroom of the structure where the shooting occurred and where he, without permission first, had taken Cooper’s clothes and was wearing them (PH Tr. 34— 35).
L. He found a shotgun and a pistol in the room where Cooper’s clothes were (PH Tr. 36).
M. He really didn’t have any specific memory of the events because of the injury to his brain (PH Tr. 42).
N. He failed to tell any of the police about Cooper and Cooper’s friend, Stephen Gaffney, using “K-2” (PH Tr. 43 —45).
BRITTANY MATTHEWS - Direct:
A. She was present on February 6, 2014, at the residence located at 8325 North 1201h East Avenue, Owasso, Tulsa County, Oklahoma, and that Cooper was moving into that residence on that day (PH Tr. 50).
B. She witnessed an argument between Cooper and Brown and Cooper was telling Brown he had to leave the residence (PH Tr. 51 — 52).
C. During the course of the argument between Cooper and Brown, she witnessed Brown grab Cooper by the throat, and she witnessed Brown starting to hit Cooper with his fists (PH Tr. 53).
D. Cooper’s initial response was to “pistol-whip” Brown with a pistol in an effort to defend himself with the bull of the pistol (PH Tr. 54).
E. Brown fell halfway on the floor and halfway on the bed after his legs got wrapped up in a comforter and that she saw Cooper fire five or six times hitting Houston Brown in the back, neck, and back of his head (PH Tr. 55—56).
BRITTANY MATTHEWS — Cross-Examination:
F. She understood K.C. and Cooper had a contract whereby Cooper was a legal resident of the house and that Cooper was moving his personal property into that residence as a result of his legal right to be there (PH Tr. 58).
G. She had several felony convictions, including possession of a stolen vehicle and robbery
(PH Tr. 60— 61).
H. K.C. and Brown felt it was not a good idea for Cooper to have any weapons in the house as they were both convicted felons (PH Tr. 62).
I. After Cooper found the pistol, she understood Cooper had told her there was no ammunition for it (PH Tr. 63— 64).
J. Brown was having a “bad day” and that he was cranky and irritable and complaining that as a result of his sister drugging him up, he was complaining that the government had installed a camera in his head (PH Tr. 66 —67).
K. She acknowledged that Cooper, on numerous occasions, told Brown to leave the house and was urging K.C. to have Brown leave the house as well. She felt Cooper was uncomfortable with Brown in the house and remembered Cooper asked K.C. to ask Brown to leave the house on at least two occasions (PH Tr. 69 —70).
L. During the verbal altercation between Cooper and Brown, Cooper never struck Brown, never had a weapon in his hand, and only armed himself after Brown grabbed Cooper by the throat and started pummeling him in the face with his hand (PH Tr. 71).
Memorandum of Law
6. 22 OS. § 504.1, provides in pertinent part Motion to Quash for Insufficient Evidence
A, In addition to a demurrer to the indictment or information, as provided in Section 504 of Title 22 of the Oklahoma Statutes, the defendant may file a motion to quash for insufficient evidence in felony cases after preliminary hearing.
7. The current version of 21 0.5. § 1289.25, as amended in November 21,
2011, provides for individuals who are legal residents and have a right to be at that residence a presumption, upon being presented with an intruder and having a reasonable fear of imminent peril of death or great bodily harm and affords that resident the right, to use force, up to deadly force, to defend his person and place of residence. Section 1289.25 is produced here in full:
Physical or Deadly Force Against Intruder
A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes or places of business.
B. A person or an owner, manager or employee of a business is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if
1. The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, occupied vehicle, or a place of business, or if that person had removed or was attempting to remove another against the will of that person from the dwelling, residence, occupied vehicle, or place of business; and
2. The person who uses defensive force knew or had reason to believe that an unlau Jul and forcible entry or unlawful and forcible act was occurring or had occurred,
C. The presumption set forth in subsection B of this section does not apply if
1. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not a protective order from domestic violence in effect or a written pretrial supervision order of no contact against that person;
2. The person or persons sought to be removed are children or grandchildren, or are otherwise in the lawful custody or under the lawfl.d guardianship of the person against whom the defensive force is used; or
3. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, occupied vehicle, or place of business to further an unlawful activity.
D. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a ford ble felony.
E. A person who unlawfully and by force enters or attempts to enter the dwelling, residence, occupied vehicle of another person, or a place of business is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
F. A person ze,ho uses force, as permitted pursuant to the provisions of subsections B and B of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term “criminal prosecution” includes charging or prosecuting the defendant.
G. A laze enforcement agency may use standard procedures for investigating the use of force, but the law enforcement agency may not arrest the person for using force unless it determines that there is probable cause that the force that zi’as used was unlawful.
H. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection F of this section.
I. The provisions of this section and the provisions of the Oklahoma Self-Defense Act shall not be construed to require any person using a pistol pursuant to the provisions of this section to be licensed in any manner.
J. As used in this section:
1. “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people;
2. “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest; and
3. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
8. Counsel acknowledges, while the testimony is not clear, a reasonable inference is that Brown was in the residence, at least initially, as a guest or with permission of K.C., who was a resident. However, a legal guest of a lawful resident of a home can easily become an intruder based upon the conduct that guest engages in. Here, the testimony clearly establishes Brown was not a legal resident and defendant Cooper was. The evidence is further uncontested that the defendant, Cooper, a legal resident, was attacked by Brown in an unprovoked manner, with Brown grabbing Cooper by the throat and striking him with his fists. The testimony is further uncontradicted that rather than initially using deadly force, Cooper attempted to defend himself in a reasoned and measured fashion by using the butt end of the pistol to fend off Brown’s illegal assault without success. Only then did Cooper use lethal force to protect himself as he is entitled to do under 21 O.S. § 1289.25.
9. The strength of the presumption Section 1289.25 is emphasized in paragraph F which makes one in this defendant’s position ‘immune from criminal prosecution and civil action for the use of such force.” As used in this subsection, the term ‘criminal prosecution’ includes “charging or prosecuting the defendant.” Clearly, under the latest version of this statute law enforcement and prosecution should have been in receipt of evidence, at the time of the charging decision that would overcome the presumption that such an intruder was there to cause physical or deadly force. Surely if that presumption prevails at the charging stage, it will prevail at a preliminary hearing. Therefore, if charges are filed the State must present evidence at the preliminary hearing which would overcome the presumption that the defendant was acting lawfully under this factual scenario.
10. Legal and common sense definitions of the pertinent terms in this statute support the proposition that not only should the evidence at the preliminary hearing be found insufficient to overcome the statutory presumption, but that had a thorough investigation occurred by law enforcement, no charges should even have been filed.
11 “Force” has been defined as:
1. Capacity to do work or cause physical change; strength; power. 2. Power made operative against resistance; exertion: use force in driving a nail, 3. The use of such power or exertion. 4. Intellectual power or vigor, as of a statement.
5. A capacity for affecting the mind or behavior; efficacy. 6. Anything or anyone possessing such capacity: forces of evil. 7. A body of persons or other resources organized or available for a certain purpose: a work force. 8. A group organized for military, police, or hostile purposes: an armed force. 9. Law. Legal validity; efficacy. 10. Symbol F Physics. A vector quantity that tends to produce an acceleration of a body in the direction of its application. —See synonyms at strength. —in force. 1. In full strength. 2. In effect; operative: a rule no longer in force. —tr,v. forced, forcing, forces. 1. To compel to perform an action; coerce. 2. To obtain by the use of force or coercion: force a confession. 3. To produce by efforce: force a tear from one’s eye
The American Heritage Dictionary of the English Language 513 (New College ed. 1978).
12. ‘Forcible Entry” has been defined as:
At common law, violently taking possession of lands and tenements with menaces, force, and arms, against the will of those entitled to the possession, and without the authority of law. 4 Bl. Comm. 148. Entry accompanied with circumstances tending to excite terror in the occupant, and to prevent him from maintaining his rights.
Black’s Law Dictionary 645 (6th ed. 1990).
13. “Force” has also been defined as:
Power, violence, compulsion, or constraint exerted upon or against a person or thing. Landry v. Daley, D.C. Ill., 280 F. Supp. 938, 954. Pozver dynamically considered, that is, in motion or in action; constraining power, compulsion; strength directed to an end, Commonly the word occurs in such connections as to show that unlawful or wrongful action is meant; e.g.forcible entry.
Black’s Law Dictionary 644 (6th ed. 1990).
14. The statutory change in Section 1289.25, occurring on November 1, 2011, cannot be overemphasized. There is a significant difference between the former statute which offered a citizen an affirmative defense to the use of deadly force with the current version of the statute governing this Court’s decision here, giving a presumption to all citizen under factual situations presented to this defendant on September 26, 2012, that the intruders are there to do harm. Just as the “presumption of innocence” must be overcome by evidence beyond a reasonable doubt at trial, this presumption (gives “a person or an owner,... a presum[ptionj to have held a reasonable fear of imminent peril or death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another ) must be overcome by evidence rising to the level of probable cause at the preliminary hearing. 21 0.8. § 1289.25 B, D, and F.
15. Presumptions are afforded significant weight, particularly when they appear here to be presumptions not only of law, but presumptions of fact assuming the statutory fact patterns are met.
16. Once again, legal and common sense definitions of presumptions are consistent with and support the defendant’s argument.
17. “Presumption” has been defined as:
2. The act of presuming or accepting as true. 3. Acceptance or belief based on reasonable evidence; an assumption or supposition. 4. A condition or basis for accepting or presuming. 5. Law. An inference as to the truth of an allegation or proposition, based on probable reasoning, in the absence of or prior to, actual proof or disproof
The American Heritage Dictionary of the English Language 1037 (New College ed. 1978).
18. “Presumption” has also been defined as:
An inference in favor of a particular fact. A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact
Slack’s Law Dictionary 1185 (6th ed. 1990).
19. ‘Presumptions of fact” has been defined as:
Such are presumptions which do not compel a finding of the presumed fact but which warrant one when the basic fact has been proved. The trend has been to reject the classifications of presumptions of “fact” and presumptions of “law”. See Inference.
Black’s Law Dictionary 1186 (6 ed. 1990).
20. “Presumptions of law” has also been defined as:
A presumption of law is one which, once the basic fact is proved and no evidence to the con trary has been introduced, compels a finding of the existence of the presumed fact. The presumption of law is rebuttable and in most cases the adversary introduces evidence designed to overcome it, The trend has been to reject the classifications of presumptions of “law” and presumption of “fact.”
Black’s Law Dictionary 1186 (61h ed. 1990).
21 Presumptions are afforded strong support in areas other than criminal law. In child custody matters our Court of Appeals, in Van Wart v. Cook, 1976 OK CIV APP 39, 557 P.2d 1161. the court held:
The statute the plaintiff refers to merely creates a presumption, which is defined as “, . . a rule of law, created by statute, or judicial decision, in which a finding of the basic fact of the presumption gives rise to the existence of the presumed fact until the presumption is rebutted and becomes inoperative.”
22. The 1 0th Circuit in British America Assur. Co. of Toronto, Canada. v. Bowen ?isi.. 134 F.2d 256 (1943), the court supported the assertion that a presumption will remain in full force and effect until overcome by sufficient evidence to the contrary.
23. In xpwn v. Oklahoma Transportation Company, 1978 OK CIV APP 60, 588 P.2d 595, the court emphasized the significance and power of legal and factual presumptions. There the court described “presumptions” as:
ILlegal lifesavers tossed out by statute or decisional law to litigants foundering helplessly in a jurisprudential sea of injustice. Creation of a presumption is inevitably designed to affect the burden of proof by shifting it from the party possessed of the procedural device to his adversary.
24. In Hawkins v. Oklahoma County Court Clerk’s Office, 2001 OK CIV APP 83,
29 P.3d 124, the court held:
Thus, a presumption ordinarily operates as an aid to the party u’ho has the burden to prove a specific fact. It allows that party to prove an alternate fact which then gives rise to the ultimate fact which had to be proven in order to establish a claim or defense. As a result, the burden of producing other evidence to controvert the existence of the ultimate fact historically then shifted to the other party. Rotramel, 1975 OK 91 at ¶J 13-14, 546 P.2d at 1017; Echols, 1925 OK 14, 243 P. at 495. In other words, as to the ultimate fact, the party has satisfied his burden to present evidence with the aid of the presumption.
25. Nowhere in the testimony elicited at the preliminary hearing was there any testimony that Cooper’s legal residence status was limited solely to his bedroom. The magistrate, without justification, and supported by no evidence, wrongfully concluded that since the shooting occurred downstairs, rather than upstairs where Cooper’s clothes were, the presumption of Section 1289.25 did not apply and issued the bind-over order. Nowhere in the evidence adduced at the preliminary hearing, nor in any legal concept counsel is aware of, does a tenant of a residence who is paying rent to occupy that residence had any limitation as to his legal right to possess and be present in the residence as a whole.
26. The evidence is clear and uncontradicted that Brown was not a legal resident to the house and that Cooper was a legal resident of the house. The evidence is further clear and uncontradicted that any acts by Cooper were in measured response to his desire to have Brown leave the hOuse as a result of his actions and behavior, and only after Brown physically attacked Cooper did Cooper attempt to defend himself by using non-lethal force, unsuccessfully, and had no option left but to employ legal force in an effort to protect himself from Brown’s unlawful attack.
27. This evidence fails to overcome the presumption afforded all citizens under Section 1289.25, giving them the right to use force, up to lethal force, in an effort to protect their right to be safe in their residence from an individual who has become an unlawful intruder and has unjustifiably physically attacked them.
28. This Motion is made in good faith and not for purposes of delay.
WHEREFORE, counsel for defendant seeks an order of this Court quashing the evidence adduced at the preliminary hearing as being insufficient to establish that this defendant committed the felony crime for which he is charged and dismissing that felony count.

Outcome: 10-30-2014 CTFREE - COOPER, THOMAS ANTHONY 91815769 Oct 30 2014 2:32:31:767PM - $ 0.00
JUDGE BARCUS: DEFENDANT PRESENT, NOT IN CUSTODY, REPRESENTED BY ALLEN SMALLWOOD. STATE REPRESENTED BY KEVIN GRAY. DEE TANNER - COURT REPORTER. CASE CALLED FOR MOTION HEARING. COURT GRANTS DEFENDANT MOTION. STATE ANNOUNCED INTENT TO APPEAL. BOND TO REMAIN AWAITING ON APPEAL FROM STATE.

Dismissed at the request of the State.

Plaintiff's Experts:

Defendant's Experts:

Comments: