Zigler strips Fry's probation
Special Prosecutor grills probation officer
by C.F. David
District Judge Greg Zigler stripped Dwayne Fry of his probationary sentence on Friday and sentenced him to the Department of Corrections for remaining nine years and 65 days, with the last three years 65 days suspended.
Fry, in May of 2005, had requested a modification in his 2000 probation from a blind plea of endeavoring to solicit, encourage or conspire to deliver or distribute a dangerous substance, (methamphetamine).
According to court records, Fry, in 1999 began to cooperate with several individuals in an effort to set up and or harm former District Judge George Leach II, his son, George Leach III, former Cimarron County Sheriff Ken Miller, and Fry's own sons Dallas and Eldon.
But, the 1999 drug charge wasn't Fry's first legal entanglement. In 1984, Fry had been placed on probation in Kansas on a perjury charge in connection to his testimony for an arrest for theft of 205 barrels of petroleum condensates, (drip gas).
After the 2000 blind plea, Fry was again placed under arrest, this time on a New Mexico Federal arrest as a felon in possession of a firearm. Fry received a five-year probation on the weapons charge.
Conditions of Fry's Oklahoma probation included provisions that he remain at his New Mexico home except visits to Cimarron County to visit his mother and to conduct business, then for only two or three days per week with prior written approval of his Probation Officer Odie Nunley.
Upon Fry filing for the modification, District Attorney Mike Boring, through his assistant Megan Kennedy informed Zigler that the entire DA's office was recusing itself from the case, citing a conflict of interest, (George Leach III, is an assistant).
State's Attorney General Drew Edmondson then appointed Ellis County Assistant DA Pat VerSteeg, to represent the state. VerSteeg immediately filed to have Fry's probation revoked.
According to the motion, Fry had:
F Violated Rule 3 by leaving his New Mexico home without prior written approval from his probation officer.
F Violated Rule 16 by threatening Shelby Walton in Sanders Town and Country.
F Violated Rule 23 by traveling to Cimarron County for reason other than to visit his mother and conduct business.
In the process of proving Fry had violated his probation agreement, Special Prosecutor Pat VerSteeg grilled Probation Officer Odie Nunley on his treatment of Fry as a probated felon.
Nunley explained that he had gone over the rules and regulations with Fry, and admitted that he usually met Fry at the home of Norma Leach at 216 SE Ninth St., Boise City.
Nunley also explained that he saw his role much like that of a coach making sure that society, the client, and he the probation officer all remained safe.
Nunley also told VerSteeg that all of Fry's official mail went to Leach's Boise City address. He then made reference to Fry having a dual residency between his ranch near Folsom, N.M. and Leach's home.
“This was contrary to what the court ordered? You allowed him to live here? VerSteeg asked.
“Yes,” Nunley replied.
“He didn't get prior written approval to be in Oklahoma? VerSteeg asked.
“No,” Nunley replied.
VerSteeg then asked Nunley where his records indicted that Fry lived.
“I don't recall what the records say. I didn't bring them with me. But, it was 216 SE Ninth as far as I was concerned,” Nunley said.
“The Court makes the rules and the probation officer doesn't. You do understand that? VerSteeg said.
VerSteeg then asked Nunley if Fry had spent more time in Oklahoma than New Mexico.
Nunley answered, “I'm not sure.”
“Were you maintaining a log of his visits? VerSteeg asked.
“No sir,” Nunley replied.
Fry's attorney, Charles Aspinwall objected, “This is the state's witness, and he's [VerSteeg] treating him as a hostile witness.
“He is a hostile witness,” VerSteeg replied.
VerSteeg then called Boise City businessman Craig Sanders to the stand to describe an incident between Fry and Shelby Walton, a vendor for Sanders' store.
Sanders recalled then in the late winter or early spring of 2003, Fry had entered the store and when Walton had offered his hand as a greeting, Fry refused and said, “I am gonna whip your ass.”
Upon Walton taking the stand,
VerSteeg asked if he and Fry had had a prior confrontation over irrigation repairs.
Aspinwall then objected, telling the judge that VerSteeg was both testifying and leading the witness.
Aspinwall, on his cross examination asked Walton if Fry had “touched him.”
Walton replied, “No.”
Fry's daughter-in-law, Lisa took the stand and testified that she had become alarmed when Fry, (who is denied visitation of his grandchildren), had parked near the Keyes School as the students were leaving.
“I was aware of the anger he has. He has been violent. I've seen it, Lisa said.
“He wasn't forbidden to be there was he,” Aspinwall asked.
“No,” she replied.
Former District Judge Leach took the stand and testified that from February to May of 2005, Fry, (who isn't supposed to be within 2,000 yards of Leach), had driven by his [Leach's] home as many as five to seven times a day, sometimes parking nearby.
Leach then told the court that as the date for the motion to modify drew closer, Fry's trips by his home grew fewer.
VerSteeg then asked Leach if anything else peculiar had happened, and Leach recalled that on two occasions, the hood of his truck had been tampered with and was open in spite of the fact the truck was locked. Leach then pointed out that Fry's initial threat against him, was to plant drugs in his vehicle.
On cross, Aspinwall asked Leach what evidence he had that Fry had tampered with his truck.
“None,” Leach replied.
Aspinwall then asked Leach why he even mentioned it, and Leach responded because VerSteeg had asked for anything unusual.
With Leach's testimony, the state rested.
Aspinwall stood and immediately moved to dismiss the state's motion to revoke, and made light of what he called “The Hatfield and McCoy” relationship between the Leaches and Fry.
“I think these are domestic disputes before you,” Aspinwall told Zigler.
Aspinwall then told Zigler that the edict of Fry staying 2,000 yards from Leach was written when Leach lived in Guymon.
“He [Leach] brought himself to Dwayne Fry,” Aspinwall said.
“This is not a man the public needs to be protected from, ”Aspinwall said. “Dwayne Fry has had a good many years to harm people.
Aspinwall did admit that perhaps Fry needed to cease using the term “Whip your ass.” But said the state had failed to prove its case that Fry's probation should be revoked.
In rebuttal, VerSteeg told Zigler, “This is not a typical case. The evidence suggests he [Fry] is a bully.”
“There is no question violations have occurred; the question is, what are we going to do about it?”
In breaking for lunch, Zigler overruled Aspinwall's motion to dismiss the revocation.
When court reconvened, Aspinwall put Fry on the bench and asked him to describe what had preceded the altercation with Shelby Walton.
Fry told the court that Walton had arranged for a work crew to come to the New Mexico ranch and do underground irrigation repairs.
“Biggest mistake was to let Shelby Walton on the place,” Fry said.
When Aspinwall asked Fry about his meeting Walton in Sanders store and Sanders asking him to leave and never return, Fry said, “I told Craig, we'll go to the country and one of us will be slower coming home.”
Asked why he parked near the school, Fry responded that he was in Keyes in an attempt to sell a motorcycle. He had seen some students running hurdles, became interested and stopped to watch.
Fry denied that he'd been trying to make contact with his grandchildren.
“I'd hurt anybody before I'd hurt those grandkids,” Fry said.
Aspinwall then guided Fry through his responsibilities to his mother.
“She's 85, her memory's slipping. She's burned some pans up on the stove. I change the oil in her car, that's my job.”
Asked how many times he'd check on her, Fry replied, “Five times a week.”
In his cross of Fry, VerSteeg asked Fry if he knew the rules of his probation.
“I don't know what the rules say,” he answered.
Asked where the New Mexico Federal Probation officer thought he lived, Fry responded, “He knows I live in Oklahoma.”
“You knew you weren't supposed to be driving in front of his [Leach's] house?” VerSteeg asked.
‘Yes,” Fry said.
“You knew you weren't supposed to do it, but you continued to do it?”
“Yes,” Fry said.
“In 1984, did you take a tire iron after some oil field workers?” VerSteeg asked.
“They ran me off the road. I was trying to make a citizens arrest,” Fry answered.
VerSteeg asked Fry if he were a convicted perjurer.
“I didn't perjure myself, but they took it that way,” he answered.
VerSteeg then asked about the Kansas theft of drip gas.
“It was classified as a theft but everyone was doing it,” Fry said.
VerSteeg asked Fry if in 1980 he had “...fired a gun at some people.”
“I pleaded guilty to it, but I didn't do it.”
VerSteeg then asked Fry if he had ever “Whipped up on his late wife Louella.”
“I slapped her once.”
Fry's son, Dallas took the stand and testified that he had seen her mother after being “slapped”.
“Her neck was bruised from where he'd grabbed her. Both eyes were black and she had bruises on her chest,” he replied.
After hearing the testimony, Zigler retired to his chambers for 30 minutes. When court reconvened, Zigler read to Fry from the court record of Sept. 25, 2000, where he [Fry] testified that he was clear on the rules and regulations of his probation.
“The court is satisfied you have violated Rule 3; you've changed your residency.”
“You violated Rule 16, Your use of language was a calculated breech of peace
Zigler then pointed out that Fry had violated Rule 23 by traveling to Keyes, which did not constitute taking care of his mother or conducting business.
Zigler looked at Fry, “I am not going to address every little thing. I need not, the record speaks for itself.
“What I've gleaned from your testimony today concerns me greatly.”
“I know the processes I go through. You entered an offered plea [in 2000] and I accepted. That's all past, that doesn't matter,” Zigler said.
Zigler then told Fry that he hadn't lived up to the probation agreement. He accused him of doing and saying what he, Dwayne Fry, wanted to do.
“That's not part of your rules of probation,” Zigler said. “It's black and white you either abide or you violate,” he continued.
Fry responded, “If I've done anything wrong then it wasn't intentional.”
Zigler responded that this was as humble as he had ever seen Fry.
“You are forward and stern,” he said. “Perhaps if you had had a zero tolerance probation officer with the mentality of a Marine Drill Sergeant, it would've probably done you some good.”
Mr Nunley is a very kind and gentle person. In the past I have been very complimentary to him. Today, I have no compliments,” Zigler said.
“I respect Odie, I think he's a fine guy,” Fry said.
Zigler then denied the defense motion to modify the probation agreement, and told Fry that after six years of incarceration, “We will be detailed and emphatic about your probation.”
Fry will remain in the Cimarron County Jail for at least 10 days before being surrendered to the DOC.
Boise City News