Similarities are found in traffic stop, OHP cases
http://www.tulsaworld.com/common/printerfriendlystory.aspx?articleID=070930_1_A1_hrpah05082by: RHETT MORGAN World Staff Writer
9/30/2007
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Read two other stories related to a complaint against the Oklahoma Highway Patrol.
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A judge last year condemned the unsuccessful prosecution of a former Tulsan charged with perjury in connection with an Oklahoma Highway Patrol traffic stop.
The felony case originated from the trial of Emily Kelley, who was convicted in Bryan County and fined $50 for failing to change lanes when approaching a stationary emergency vehicle with flashing lights.
The case is similar to another controversy in which prosecutors have charged a woman because they dispute a sworn complaint she made against a different trooper.
Kelley, whose maiden name is Potter, was charged with perjury after her testimony about a conversation with OHP Trooper Steve Nabors wasn’t identical in wording and sequence to a videotape of the incident, court records show.
“This case had a peculiar air about it from the beginning, and the source of the odor is now apparent: Ms. Potter was charged with a felony offense in retaliation for her ‘attempt to discredit an officer of the law and the justice system,’ ” Choctaw County Associate District Judge Don Ed Payne wrote in February 2006.
Appointed as an out-of-county judge, Payne acquitted her of the perjury charge at a nonjury trial, adding that the substance of the defendant’s testimony “was consistent with the trooper’s version and videotape in all material respects.”
Payne, who died in December, wrote that it is hard to understand why Kelley was charged with perjury until he read the following language of the state’s argument: “. . . this case is in fact serious because of the defendant’s attempt to discredit an officer of the law and the justice system over something as simple as a traffic violation.”
Complaint filed: Another perjury case, this one involving Latisha White, is still brewing in nearby Carter County.
A native Oklahoman who lives in Louisiana, White filed an Oklahoma Department of Public Safety complaint in which she claims OHP Trooper Rocky Northcutt repeatedly cursed at her during a traffic stop of her sister on Sept. 3, 2006.
Oklahoma prosecutors claim audio/videotaped evidence backs Northcutt. Attorneys for White, who also has filed a civil lawsuit against Northcutt, claim the videotape is incomplete and that nothing their client swore to constitutes perjury. An extradition attempt of White was halted recently by the Louisiana state attorney general’s office.
Taken seriously: Tulsa attorney Rick White represented Kelley at her perjury trial. “The activity that resulted in this complaint was irrelevant to the charge against her,” he said. “You’ve got to be very careful when you make a complaint against the Department of Public Safety.
“My opinion is that they take it very seriously. They take it very personal. In this case, I think it was personal.” Kelley, who now lives in Mc- Kinney, Texas, is a registered nurse at a Dallas hospital. “It makes you think twice about what you can and cannot do,” she said of contesting a traffic ticket.
Kelley swore out a four-page complaint against the DPS on Feb. 3, 2006. In it, she admits that after viewing the videotape, her testimony was erroneous in several respects.
“However, in no instance was it my intent to speak falsely or with the intent to deceive the court or anyone else,” she wrote in her affidavit.
Wellon Poe, chief legal counsel for DPS, was unavailable for comment. But Gary James, an Oklahoma City attorney who represents the Oklahoma State Troopers Association, said he was unaware of the case until a reporter faxed it to him this past week.
James said he knows of no other perjury charge that has resulted from a defendant’s testimony in an OHP traffic ticket case.
“Somebody says a car is red and it’s burgundy,” he said. “That’s human nature, people’s perceptions, observations, etc. We have no intent of punishing or suing people or making them accountable for things that are based on difference of human observation.”
The difference between the Kelley and White cases is relevancy, the attorney said.
“What Latisha White is lying about is the issue in the case,” James said. “It’s not just material. It is the issue.” Latisha White alleges that Northcutt used the F-word five times in her affidavit. “That’s not a question of observation, or as Mr. (White’s civil attorney Chris) Roy says, ‘maybe mistakenly heard it.’ Mistaken is once.”
Videotape played: Returning from a visit to her fiance in College Station, Texas, Kelley was heading home to Tulsa on the evening of May 20, 2004.
Nabors, 46, was assisting at a minor wreck north of Caddo on U.S. 69. before 9 p.m. in Bryan County. Kelley, traveling alone with no vehicles around her, failed to move to the other lane when approaching an emergency vehicle with lights activated, as required by law, Nabors testified at the traffic citation trial.
At the trial on the traffic charge, the state played a videotape of the stop and devoted much of its closing statement to weighing Kelley’s credibility.
Assistant District Attorney Tim Webster told the judge he was being asked to choose between ignoring the “seven or eight lies that we have on tape” or believing Kelley’s two statements that she didn’t see the emergency vehicle and cars prevented her from moving over, a transcript shows.
According to court records, the state said discrepancies included:
Kelley testified that she initially asked the officer why she had been stopped, and Nabors responded, “You may not question me. You will do as you are told. You will give me your license and registration.”
The videotape showed that the trooper asked her for her license and registration, at which time she asked a question, to which he replied, “Yes, you give me your license and insurance, and I’ll explain it to you. You need to follow instructions right now.”
Kelley testified that she asked Nabors for his name when he asked her to sign the ticket, and he tapped where his name was on the ticket and said, “It’s right here.”
The tape indicated that he instructed her to sign the ticket, whereupon she said, “Is your name on this?” and he replied, “Right here.”
The videotape and Kelley concur that when the trooper returned to the car, she was on the cell phone to her father and that the trooper asked her to get off the phone and she tried to get him to talk to her father but he refused.
The discrepancy is between whether he said, “You mind getting off the phone?” or “You will get off the phone right now,” and whether Nabors said he didn’t have to identify himself to the father or said, “I’m not talking to anybody; I don’t need to talk to anybody,” a trial brief filed by White indicated.
Kelley was charged with perjury in October 2004.
Payne, in his verdict and findings, said that to constitute perjury, false testimony must be relevant to some material fact at issue in the case.
Payne wrote that it didn’t appear Kelley tried to discredit Nabors or the justice system, saying no evidence existed that Nabors acted improperly.
But even if she were trying to discredit a peace officer, “that is no crime, and she was well within what remains of the dwindling rights of an American citizen to do so without fear of imprisonment,” the judge wrote.
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Rhett Morgan 581-8395
rhett.morgan@tulsaworld.com
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