Court upholds wife’s murder charge

TULSA — A 75-year-old woman’s murder charge still stands after the Oklahoma Court of Criminal Appeals upheld a Tulsa judge’s ruling that she is not eligible for immunity under the state’s Stand Your Ground law.

The 3-2 decision could impact defendants statewide.

The ruling, written by Judge Robert Hudson, states Vicky McNeely is legally unable to appeal a June decision from District Judge William LaFortune because the Oklahoma Legislature has not outlined any statutory right to appeal the results of immunity hearings to a higher court.

McNeely is charged with fatally shooting her husband, Daniel McNeely, in the back in January 2013 amid a tumultuous relationship she has reported was marred by domestic violence. She had been free on bond following her arrest but had her bond revoked in September after being charged with aggravated driving under the influence.

Vice Presiding Judge David Lewis, in a pointed dissent, said the decision constitutes “needless destruction of the interlocutory review procedure for Stand Your Ground immunity claims” previously established by the court.

Other states with Stand Your Ground laws, Lewis said, have avenues for appeal, and as a result he said he is troubled by what he believes is the court diminishing the scope of immunity protection for Oklahomans.

“The struggle, as they say, is real,” he wrote, later saying, “while some defendants may well be immune from criminal prosecution and trial under the Stand Your Ground law, they must first be criminally prosecuted and tried to see if they are immune. The court thus turns Stand Your Ground immunity into a presentday Catch-22.”

However, Hudson maintained LaFortune’s decision was an exercise of discretion before trial that is fully within the scope of his powers as a judge.LaFortune’s June ruling indicated he decided against ruling McNeely was immune from prosecution because of statements from a medical examiner about where the husband was shot. He also observed that the position of knives in the home in relation to her husband’s body suggested they might have been moved before police arrived, and that the knife McNeely raised as an issue wasn’t being held by its handle during the shooting.

With McNeeley’s appeal, Hudson wrote, “there is simply no statutorily authorized means under existing law to address the issue pretrial as it is presented here.”

However, each of the five appellate judges took issue with the language of Oklahoma’s Stand Your Ground law and its use of the word “immunity,” noting the issue can’t be raised until a person is facing criminal action.

“The legislature must now enact the interlocutory appeal statute that today’s new majority demands or resign the enforcement of immunity statutes to local prosecutors and judges, just as the court does today,” Lewis wrote.

Similarly, Judge Dana Kuehn said she was “deeply disturbed” by the decision because it deprives a defendant of the right to a pretrial appeal.

“The defendant must establish he is factually entitled to immunity before the statute applies. The majority disregards the fact that this particular fact-finding happens before trial begins,” Kuehn wrote. She later said it is “fundamentally unfair” for a defendant to undergo full prosecution before the appellate court can even consider an immunity claim.