The following criminal cases of note were decided this week:
Washington State Law
Washington State Supreme Court:
State v. Wilson: The Court held that anticipatory offenses included in an offender score calculation under RCW 9.94A.525(4) must themselves be felonies in order to be calculated as such as part of the offender score calculation. Here, the trial court had erroneously included as a felony what was actually a conviction for a gross misdemeanor. In upholding the decision, the Court of Appeals reasoned that the anticipatory offense would have been a felony if completed. The Supreme Court found this to be in error and held that such a mistake is a legal mistake and therefore the petitioner is entitled to be resentenced under the correct offender score. http://www.courts.wa.gov/opinions/pdf/837970.opn.pdf
Division One Court of Appeals:
State v. Burns: The Court held that, when the State failed to hold a restitution hearing within 180 days of sentencing as required by the statute to determine the amount of restitution to be paid by Mr. Burns as a result of certain uncharged crimes, the trial court did not have statutory authority to determine or modify the amount of restitution after the expiration of the 180 day time period allowed for restitution to be set under RCW 9.94A.753(1). The Court reversed the restitution order. http://www.courts.wa.gov/opinions/pdf/63768-1.pub.doc.pdf
Division Two Court of Appeals:
In Re Detention of Alsteen: The Court affirmed a jury verdict finding that Mr. Alsteen is a sexually violent predator who should be civilly committed under the "Sexually Violent Predator Act," (SVPA) chapter 71.09 RCW. The Court held that the jury instructions were an accurate statement of the law and permitted the parties to argue their respective theories of the case to the jury, and did not prejudice Mr. Alsteen by improperly focusing on past crimes to which he had stipulated. Because the instructional challenge failed, the Court affirmed Mr. Alsteen’s commitment as a sexually violent predator. http://www.courts.wa.gov/opinions/pdf/37140-5.10.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
Pulido v. Hedgpeth: The Court found that erroneous jury instructions in Mr. Pulido’s state murder trial were not prejudicial as a matter of federal Constitutional law. The Court disagreed with Mr. Pulido’s contentions that the jury instructions on aiding and abetting felony murder and robbery, read together, impermissibly allowed him to be convicted of felony murder even if he did not form the intent to aid and to abet the robbery until after the murder. The Court found that despite a typographical error in the special circumstance instruction, which used the word “or” instead of “and” between its two prongs, thus enlarging the scope of activity that would qualify as robbery felony murder under the special circumstance. However, the court concluded that the instruction did not have substantial or injurious effect or influence in determining the jury’s verdict.
Judge Thomas dissented, arguing that the law was explained improperly in this case, and it could not be reasonably concluded that the error did not substantially and injuriously affect the verdict. The dissent reasoned that the instructions allowed for a conviction for felony-murder and a finding of special circumstance robbery-murder even if Mr. Pulido became a knowing participant only after the robbery and shooting were completed. The record left the dissent with “grave doubt” as to whether the erroneous instructions had a substantial and injurious effect on the jury’s verdict. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/21/05-15916.pdf
United States v. Alvarez-Perez: The Court found that Mr. Alvarez-Perez was prosecuted for being a deported alien found in the United States in violation of the Speedy Trial Act (STA). The Court found that Mr. Alvarez-Perez’ trial was held outside the permitted 70-day period. However, because the government exceeded speedy trial by just two days, Mr. Alvarez-Perez was accused of a serious offense, there was no showing of governmental bad faith, and no showing that Mr. Alvarez-Perez would be prejudiced by a re-trial, the Court dismissed the action without prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/22/09-50334.pdf
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Monday, December 27, 2010
Monday, December 20, 2010
Washington Case Law Update Dec. 20, 2010
The following criminal cases of note were decided this week:
Washington State Law
Division One Court of Appeals:
State v. Deer: The Court dismissed without prejudice due to the trial court’s error in allowing the State to amend the information in this case after the State had rested its case. The original information in this case had alleged that Ms. Deer had had “sexual contact” with a minor rather than “sexual intercourse,” thus alleging the elements of child molestation rather than child rape. The Court further found that the trial court erred in rejecting a proposed jury instruction which would have required the State to prove beyond a reasonable doubt that Ms. Deer had committed a volitional act, and instead instructed the jury that Ms. Deer had the burden of proving her defense, "that the child had intercourse with the defendant without the knowledge or consent of the defendant" by a preponderance of the evidence. In so doing, the Court ruled, the trial court relieved the State of its burden of providing the actus reas of the crime beyond a reasonable doubt. http://www.courts.wa.gov/opinions/pdf/63737-1.pub.doc.pdf
Division Three Court of Appeals:
State v. Stark: The Court reversed Ms. Stark’s convictions for first degree premeditated murder and conspiracy to commit first degree murder in the shooting death of her estranged husband, from whom she had endured years of abuse before finally escaping the marriage. The Court found that the trial court erred in giving an aggressor instruction, thus eliminating her defense of self-defense under the circumstances of this case that showed that Ms. Stark was hiding in the kitchen when Mr. Stark came over, and that he had charged toward her threatening to kill her when he was served by another person with a restraining order against him, and that Ms. Stark only shot him when he made a move toward a knife on the counter. The Court disagreed with the State’s contention that the restraining order was sufficient provocation for an aggressor instruction, finding that case law has established that spoken words are insufficient, and therefore written words would likewise not be sufficient. The Court further found that the to-convict instruction for the alleged conspiracy in this case failed to name the specific conspirators as alleged in the information, a discrepancy that must be addressed on remand. However, the court found that there were sufficient facts for a new trial, both on the murder and the conspiracy counts. http://www.courts.wa.gov/opinions/pdf/281418.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Newhoff: The Court upheld Mr. Newhoff’s conviction for felon in possession of a firearm, finding that there was a reasonable inference from the testimony showing that Mr. Newhoff was the burglar who was attempting to sell the firearm that he was in fact the person who found and stole it. As there was no clear error in the district court’s finding of fact in this regard, the Court affirmed the conviction. In so doing, the Court rejected Mr. Newhoff’s arguments that there was no eyewitness testimony demonstrating he took the pistol during the burglary, finding that the circumstantial evidence was sufficient. The Court also found that, though the district court’s failure to give an admonition to the jury that they were not to place undue weight on the officer’s testimony after it was read back to them during deliberations at the close of the trial was plain error; it did not affect Mr. Newhoff’s substantial rights and did not warrant reversal. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/16/09-30143.pdf
Roberts v. Marshall: The Court found that the district court did not abuse its discretion in denying Mr. Roberts an evidentiary hearing to determine whether his asserted mental incompetence warranted equitable tolling of the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996. The Court noted that the district court had access to extensive medical records that indicated Mr. Roberts’ relevant mental functions were either “good” or “within normal limits” during the time period for which he sought tolling of the statute of limitations, and that the district court’s conclusion that Mr. Roberts’ mental incompetency was not the cause of his untimeliness was proper, particularly considering that Mr. Roberts managed to file several petitions for post-conviction relief in state court presenting identical arguments to those presented in the federal court during the time for which Roberts seeks equitable tolling. The court found that Mr. Roberts did not carry his burden of establishing that he is entitled to equitable tolling, and his federal petition was therefore barred by AEDPA’s statute of limitations. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/13/08-55901.pdf
Washington State Law
Division One Court of Appeals:
State v. Deer: The Court dismissed without prejudice due to the trial court’s error in allowing the State to amend the information in this case after the State had rested its case. The original information in this case had alleged that Ms. Deer had had “sexual contact” with a minor rather than “sexual intercourse,” thus alleging the elements of child molestation rather than child rape. The Court further found that the trial court erred in rejecting a proposed jury instruction which would have required the State to prove beyond a reasonable doubt that Ms. Deer had committed a volitional act, and instead instructed the jury that Ms. Deer had the burden of proving her defense, "that the child had intercourse with the defendant without the knowledge or consent of the defendant" by a preponderance of the evidence. In so doing, the Court ruled, the trial court relieved the State of its burden of providing the actus reas of the crime beyond a reasonable doubt. http://www.courts.wa.gov/opinions/pdf/63737-1.pub.doc.pdf
Division Three Court of Appeals:
State v. Stark: The Court reversed Ms. Stark’s convictions for first degree premeditated murder and conspiracy to commit first degree murder in the shooting death of her estranged husband, from whom she had endured years of abuse before finally escaping the marriage. The Court found that the trial court erred in giving an aggressor instruction, thus eliminating her defense of self-defense under the circumstances of this case that showed that Ms. Stark was hiding in the kitchen when Mr. Stark came over, and that he had charged toward her threatening to kill her when he was served by another person with a restraining order against him, and that Ms. Stark only shot him when he made a move toward a knife on the counter. The Court disagreed with the State’s contention that the restraining order was sufficient provocation for an aggressor instruction, finding that case law has established that spoken words are insufficient, and therefore written words would likewise not be sufficient. The Court further found that the to-convict instruction for the alleged conspiracy in this case failed to name the specific conspirators as alleged in the information, a discrepancy that must be addressed on remand. However, the court found that there were sufficient facts for a new trial, both on the murder and the conspiracy counts. http://www.courts.wa.gov/opinions/pdf/281418.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Newhoff: The Court upheld Mr. Newhoff’s conviction for felon in possession of a firearm, finding that there was a reasonable inference from the testimony showing that Mr. Newhoff was the burglar who was attempting to sell the firearm that he was in fact the person who found and stole it. As there was no clear error in the district court’s finding of fact in this regard, the Court affirmed the conviction. In so doing, the Court rejected Mr. Newhoff’s arguments that there was no eyewitness testimony demonstrating he took the pistol during the burglary, finding that the circumstantial evidence was sufficient. The Court also found that, though the district court’s failure to give an admonition to the jury that they were not to place undue weight on the officer’s testimony after it was read back to them during deliberations at the close of the trial was plain error; it did not affect Mr. Newhoff’s substantial rights and did not warrant reversal. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/16/09-30143.pdf
Roberts v. Marshall: The Court found that the district court did not abuse its discretion in denying Mr. Roberts an evidentiary hearing to determine whether his asserted mental incompetence warranted equitable tolling of the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996. The Court noted that the district court had access to extensive medical records that indicated Mr. Roberts’ relevant mental functions were either “good” or “within normal limits” during the time period for which he sought tolling of the statute of limitations, and that the district court’s conclusion that Mr. Roberts’ mental incompetency was not the cause of his untimeliness was proper, particularly considering that Mr. Roberts managed to file several petitions for post-conviction relief in state court presenting identical arguments to those presented in the federal court during the time for which Roberts seeks equitable tolling. The court found that Mr. Roberts did not carry his burden of establishing that he is entitled to equitable tolling, and his federal petition was therefore barred by AEDPA’s statute of limitations. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/13/08-55901.pdf
Tuesday, November 23, 2010
Washington State Law
Washington State Supreme Court:
In Re Personal Restraint of Francis: The Court held that there was a double jeopardy violation when Mr. Francis pled guilty to felony murder, first degree attempted robbery, and second degree assault, all arising from the same string of conduct. The Court reasoned that the State expressly relied on the second degree assault conduct to elevate the attempted robbery to the first degree when it charged the crimes, and so convictions on both charges violate double jeopardy protections. In response to the State’s argument that Mr. Francis waived his double jeopardy challenge by pleading guilty, the Court referenced its decision in State v. Knight, where the Court had concluded that a double jeopardy violation was the entry of multiple convictions for the same offense, not the guilty pleas themselves, and a defendant could challenge the court's entry of any convictions that violate double jeopardy. http://www.courts.wa.gov/opinions/pdf/826196.opn.pdf
In her concurrence, Justice Madsen wrote separately to express her concern that the three part test set forth by the majority does not follow legislative intent and establishes a freestanding test that rests upon a misunderstanding of settled law. The concurrence also expressed a concern that the majority discussed determining double jeopardy based on the offenses as charged, rather than on the offenses as charged and proved, which is the true state of the law. http://www.courts.wa.gov/opinions/pdf/826196.co1.pdf
State v. Hirschfelder: The Court held that former RCW 9A.44.093(1)(b), criminalizes sexual intercourse between a school employee and any registered student age 16 or older. The court further held that the statute is neither unconstitutionally vague nor violative of Mr. Hirschfelder’s equal protection rights. The Court reasoned that the statute unambiguously defines “minor” as a registered student and thus includes students up to the age of 21, and is therefore not vague. The Court further held that there was a rational basis for the prohibited conduct, and therefore Mr. Hirschfelder’s discrimination claim that the Court characterized as an equal protection claim failed. http://www.courts.wa.gov/opinions/pdf/827443.opn.pdf
In his dissent, Justice Charles Johnson, joined by Justices Sanders, Owens, and Chambers, argued that the majority ignored an affirmative defense in the statute that allowed a person charged with sexual misconduct to rebut the charge with proof that the alleged victim was 18 years of age. The dissent further argued that the majority appeared to disregard the fact that a statutory interpretation limiting an affirmative defense is significantly different from a statutory interpretation limiting the reach of a criminal statute; an application that is more consistent with the general rule of interpretation that the majority relies upon. The dissent argued that the majority’s conclusion is inconsistent with the statutory scheme taken as a whole, and does not make sense. http://www.courts.wa.gov/opinions/pdf/827443.no1.pdf
In Re Personal Restraint of Adolph: The Court held that Mr. Adolph’s PRP was not procedurally barred; however, they found that there was sufficient evidence to support Mr. Adolph’s prior DUI conviction when that conviction was supported by a certified copy of Mr. Adolph’s DOL abstract and a copy of a defendant’s case history from DISCIS. Therefore, the Court held that the resulting two year sentence enhancement in the instant matter was proper, and denied Mr. Adolph’s PRP. http://www.courts.wa.gov/opinions/pdf/828687.opn.pdf
In his dissent, Justice Sanders argued that the evidence produced by the State to prove Mr. Adolph’s prior DU I was not comparable to a certified copy of the judgment and sentence, and was therefore insufficient to prove the conviction. http://www.courts.wa.gov/opinions/pdf/828687.no1.pdf
Division Two Court of Appeals:
State v. Corbett: Mr. Corbett appealed his conviction on four counts of first degree child rape, arguing that(1) the trial court improperly limited his cross-examination of a witness, (2) sufficient evidence does not support three of his convictions, (3) the jury instructions failed to protect his rights to be free from double jeopardy and to receive unanimous jury verdicts, (4) the prosecutor committed misconduct during closing arguments, and (5) the sentencing court imposed an unlawful prohibition on his contact with all minors, including his own biological children. The Court affirmed, concluding that Mr. Corbett did not provide sufficient arguments regarding the alleged erroneous limitations on his cross-examination of a witness, sufficient evidence supports his convictions, the jury instructions were proper, the prosecutor did not commit misconduct, and the sentencing condition prohibiting contact with all minor children, including Mr. Corbett’s own children, is “a valid crime-related prohibition that does not unduly burden his fundamental parenting rights.” http://www.courts.wa.gov/opinions/pdf/39147-3.10.doc.pdf
State v. Barnes: The court ruled that a search incident to arrest in this case was permissible when the arrest was for the crime of felony harassment and there was a gun case in plain view in the car. The Court distinguished this case from Patton and Valdez on the basis of the evidence in plain view as well as the fact that, in Patton, the defendant was not a driver or recent occupant of the car, he was secured in a patrol car at the time of the search, and there was no evidence of the crime of arrest or contraband in the car. Further, the State did not assert that there was probable cause for the search. Thus, the Court interpreted the Patton holding as a finding that the search was unconstitutional due to a lack of nexus between the arrestee, the crime of arrest, and the vehicle. Here, Mr. Barnes owned the car, was preparing to drive away at the time of his arrest, and there was probable cause to believe that there was relevant evidence in the vehicle. Therefore, the Court held that the search was constitutional.
In her dissent, Judge Van Deren argued that the evidence found in Mr. Barnes’ vehicle should have been suppressed because the officers were required to obtain a search warrant under Valdez prior to seizing evidence from the vehicle. Neither Gant nor Valdez mention the open view exception to the necessity to obtain a search warrant, the dissent observed, thus calling into question whether this is a valid exception to the warrant requirement for a search conducted after a driver is stopped and removed from his vehicle. Further, the dissent noted that the gun itself was not in open view in Mr. Barnes’ vehicle, and disagreed that the gun box alone was sufficient to trigger the open view exception. http://www.courts.wa.gov/opinions/pdf/39627-1.10.doc.pdf
Division Three Court of Appeals:
State v. Valdez: The Court held that the fact that a stolen laptop computer did not work was not exculpatory evidence, and the State’s failure to retain the computer or computer-related records did not violate Mr. Valdez’ due process rights. Further, the Court concluded that the evidence of Mr. Valdez’ culpability, independent of this evidence, was overwhelming, and affirmed his conviction. http://www.courts.wa.gov/opinions/pdf/282953.opn.doc.pdf
State v. Naillieux: The Court found that there was no error in the trial court’s failure to give a unanimity instruction when none was requested and further no error as to the admission of opinions on whether a tank was approved by DOT. The Court upheld several convictions relating to the manufacture of methamphetamines, but concluded that the State failed to properly allege the elements of eluding a police vehicle and reversed that conviction. http://www.courts.wa.gov/opinions/pdf/283101.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Todd: The Court affirmed Mr. Todd’s convictions for three counts of sex trafficking and one count of conspiracy to commit sex trafficking, finding sufficient evidence to uphold the convictions when Mr. Todd knew that force, fraud, or coercion was to be employed to cause his victims to engage in commercial sex transactions. The Court ruled that the knowledge of future action in the statute does not require knowledge in the sense of certainty as to a future act; rather it requires that the defendant was aware of an established modus operandi that would in the future cause a person to engage in prostitution.
Judge Smith wrote a separate concurrence to explain why he agreed with the panel decision.
http://www.ca9.uscourts.gov/datastore/opinions/2010/11/15/08-30360.pdf
United States v. Spangle: Calling meritless Mr. Spangle’s arguments that he was deprived of his Sixth Amendment right to represent himself, that the district court judge should have recused himself, and that the sentence imposed was unreasonable, the Court affirmed Mr. Spangle’s twenty-four month term of imprisonment imposed upon the revocation of his supervised release after he absconded from that release, withdrew cash from a bank account, bought a gun, and was attempting to locate his former probation officer. http://www.ca9.uscourts.gov/datastore/opinions/2010/11/19/09-50508.pdf
United States v. Anderson: The court overturned the district court’s dismissal of Mr. Anderson’s indictment, finding that he could be charged with the crime of being a felon in possession of a firearm when the two predicate felony convictions each resulted from a plea of nolo contendere in a California state court, as the State of California treats a plea of nolo contendere as equivalent to a guilty plea. http://www.ca9.uscourts.gov/datastore/opinions/2010/11/16/09-50559.pdf
United States Supreme Court:
Abbott v. United States: In an opinion authored by Justice Ginsburg and joined by all justices except Justice Kagan, who took no part in the consideration or decision of this case, the Court held that a defendant is subject to the highest mandatory minimum specified for his conduct when sentenced under the Gun Control Act, unless another provision of law directed to conduct proscribed by that act imposes an even greater mandatory minimum. The Court agreed with the government that the “except” clause, added in 1998, which provides for imposition of a minimum five year term as a consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by [the Gun Control Act itself] or by any other provision of law,” is triggered only when another provision commands a longer term for conduct violating the Gun Control Act. The Court disagreed with the defendants’ assertion that the clause was triggered when a mandatory minimum sentence was imposed for any crime, not solely those within the Gun Control Act. http://www.supremecourt.gov/opinions/10pdf/09-479.pdf
In Re Personal Restraint of Francis: The Court held that there was a double jeopardy violation when Mr. Francis pled guilty to felony murder, first degree attempted robbery, and second degree assault, all arising from the same string of conduct. The Court reasoned that the State expressly relied on the second degree assault conduct to elevate the attempted robbery to the first degree when it charged the crimes, and so convictions on both charges violate double jeopardy protections. In response to the State’s argument that Mr. Francis waived his double jeopardy challenge by pleading guilty, the Court referenced its decision in State v. Knight, where the Court had concluded that a double jeopardy violation was the entry of multiple convictions for the same offense, not the guilty pleas themselves, and a defendant could challenge the court's entry of any convictions that violate double jeopardy. http://www.courts.wa.gov/opinions/pdf/826196.opn.pdf
In her concurrence, Justice Madsen wrote separately to express her concern that the three part test set forth by the majority does not follow legislative intent and establishes a freestanding test that rests upon a misunderstanding of settled law. The concurrence also expressed a concern that the majority discussed determining double jeopardy based on the offenses as charged, rather than on the offenses as charged and proved, which is the true state of the law. http://www.courts.wa.gov/opinions/pdf/826196.co1.pdf
State v. Hirschfelder: The Court held that former RCW 9A.44.093(1)(b), criminalizes sexual intercourse between a school employee and any registered student age 16 or older. The court further held that the statute is neither unconstitutionally vague nor violative of Mr. Hirschfelder’s equal protection rights. The Court reasoned that the statute unambiguously defines “minor” as a registered student and thus includes students up to the age of 21, and is therefore not vague. The Court further held that there was a rational basis for the prohibited conduct, and therefore Mr. Hirschfelder’s discrimination claim that the Court characterized as an equal protection claim failed. http://www.courts.wa.gov/opinions/pdf/827443.opn.pdf
In his dissent, Justice Charles Johnson, joined by Justices Sanders, Owens, and Chambers, argued that the majority ignored an affirmative defense in the statute that allowed a person charged with sexual misconduct to rebut the charge with proof that the alleged victim was 18 years of age. The dissent further argued that the majority appeared to disregard the fact that a statutory interpretation limiting an affirmative defense is significantly different from a statutory interpretation limiting the reach of a criminal statute; an application that is more consistent with the general rule of interpretation that the majority relies upon. The dissent argued that the majority’s conclusion is inconsistent with the statutory scheme taken as a whole, and does not make sense. http://www.courts.wa.gov/opinions/pdf/827443.no1.pdf
In Re Personal Restraint of Adolph: The Court held that Mr. Adolph’s PRP was not procedurally barred; however, they found that there was sufficient evidence to support Mr. Adolph’s prior DUI conviction when that conviction was supported by a certified copy of Mr. Adolph’s DOL abstract and a copy of a defendant’s case history from DISCIS. Therefore, the Court held that the resulting two year sentence enhancement in the instant matter was proper, and denied Mr. Adolph’s PRP. http://www.courts.wa.gov/opinions/pdf/828687.opn.pdf
In his dissent, Justice Sanders argued that the evidence produced by the State to prove Mr. Adolph’s prior DU I was not comparable to a certified copy of the judgment and sentence, and was therefore insufficient to prove the conviction. http://www.courts.wa.gov/opinions/pdf/828687.no1.pdf
Division Two Court of Appeals:
State v. Corbett: Mr. Corbett appealed his conviction on four counts of first degree child rape, arguing that(1) the trial court improperly limited his cross-examination of a witness, (2) sufficient evidence does not support three of his convictions, (3) the jury instructions failed to protect his rights to be free from double jeopardy and to receive unanimous jury verdicts, (4) the prosecutor committed misconduct during closing arguments, and (5) the sentencing court imposed an unlawful prohibition on his contact with all minors, including his own biological children. The Court affirmed, concluding that Mr. Corbett did not provide sufficient arguments regarding the alleged erroneous limitations on his cross-examination of a witness, sufficient evidence supports his convictions, the jury instructions were proper, the prosecutor did not commit misconduct, and the sentencing condition prohibiting contact with all minor children, including Mr. Corbett’s own children, is “a valid crime-related prohibition that does not unduly burden his fundamental parenting rights.” http://www.courts.wa.gov/opinions/pdf/39147-3.10.doc.pdf
State v. Barnes: The court ruled that a search incident to arrest in this case was permissible when the arrest was for the crime of felony harassment and there was a gun case in plain view in the car. The Court distinguished this case from Patton and Valdez on the basis of the evidence in plain view as well as the fact that, in Patton, the defendant was not a driver or recent occupant of the car, he was secured in a patrol car at the time of the search, and there was no evidence of the crime of arrest or contraband in the car. Further, the State did not assert that there was probable cause for the search. Thus, the Court interpreted the Patton holding as a finding that the search was unconstitutional due to a lack of nexus between the arrestee, the crime of arrest, and the vehicle. Here, Mr. Barnes owned the car, was preparing to drive away at the time of his arrest, and there was probable cause to believe that there was relevant evidence in the vehicle. Therefore, the Court held that the search was constitutional.
In her dissent, Judge Van Deren argued that the evidence found in Mr. Barnes’ vehicle should have been suppressed because the officers were required to obtain a search warrant under Valdez prior to seizing evidence from the vehicle. Neither Gant nor Valdez mention the open view exception to the necessity to obtain a search warrant, the dissent observed, thus calling into question whether this is a valid exception to the warrant requirement for a search conducted after a driver is stopped and removed from his vehicle. Further, the dissent noted that the gun itself was not in open view in Mr. Barnes’ vehicle, and disagreed that the gun box alone was sufficient to trigger the open view exception. http://www.courts.wa.gov/opinions/pdf/39627-1.10.doc.pdf
Division Three Court of Appeals:
State v. Valdez: The Court held that the fact that a stolen laptop computer did not work was not exculpatory evidence, and the State’s failure to retain the computer or computer-related records did not violate Mr. Valdez’ due process rights. Further, the Court concluded that the evidence of Mr. Valdez’ culpability, independent of this evidence, was overwhelming, and affirmed his conviction. http://www.courts.wa.gov/opinions/pdf/282953.opn.doc.pdf
State v. Naillieux: The Court found that there was no error in the trial court’s failure to give a unanimity instruction when none was requested and further no error as to the admission of opinions on whether a tank was approved by DOT. The Court upheld several convictions relating to the manufacture of methamphetamines, but concluded that the State failed to properly allege the elements of eluding a police vehicle and reversed that conviction. http://www.courts.wa.gov/opinions/pdf/283101.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Todd: The Court affirmed Mr. Todd’s convictions for three counts of sex trafficking and one count of conspiracy to commit sex trafficking, finding sufficient evidence to uphold the convictions when Mr. Todd knew that force, fraud, or coercion was to be employed to cause his victims to engage in commercial sex transactions. The Court ruled that the knowledge of future action in the statute does not require knowledge in the sense of certainty as to a future act; rather it requires that the defendant was aware of an established modus operandi that would in the future cause a person to engage in prostitution.
Judge Smith wrote a separate concurrence to explain why he agreed with the panel decision.
http://www.ca9.uscourts.gov/datastore/opinions/2010/11/15/08-30360.pdf
United States v. Spangle: Calling meritless Mr. Spangle’s arguments that he was deprived of his Sixth Amendment right to represent himself, that the district court judge should have recused himself, and that the sentence imposed was unreasonable, the Court affirmed Mr. Spangle’s twenty-four month term of imprisonment imposed upon the revocation of his supervised release after he absconded from that release, withdrew cash from a bank account, bought a gun, and was attempting to locate his former probation officer. http://www.ca9.uscourts.gov/datastore/opinions/2010/11/19/09-50508.pdf
United States v. Anderson: The court overturned the district court’s dismissal of Mr. Anderson’s indictment, finding that he could be charged with the crime of being a felon in possession of a firearm when the two predicate felony convictions each resulted from a plea of nolo contendere in a California state court, as the State of California treats a plea of nolo contendere as equivalent to a guilty plea. http://www.ca9.uscourts.gov/datastore/opinions/2010/11/16/09-50559.pdf
United States Supreme Court:
Abbott v. United States: In an opinion authored by Justice Ginsburg and joined by all justices except Justice Kagan, who took no part in the consideration or decision of this case, the Court held that a defendant is subject to the highest mandatory minimum specified for his conduct when sentenced under the Gun Control Act, unless another provision of law directed to conduct proscribed by that act imposes an even greater mandatory minimum. The Court agreed with the government that the “except” clause, added in 1998, which provides for imposition of a minimum five year term as a consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by [the Gun Control Act itself] or by any other provision of law,” is triggered only when another provision commands a longer term for conduct violating the Gun Control Act. The Court disagreed with the defendants’ assertion that the clause was triggered when a mandatory minimum sentence was imposed for any crime, not solely those within the Gun Control Act. http://www.supremecourt.gov/opinions/10pdf/09-479.pdf
Sunday, November 7, 2010
Case Law Updates; October 18 - 29, 2010
WASHINGTON SUPREME COURT
Merger/Juvenile Sentencing: First degree assault and first degree robbery do not merge in the juvenile context.
State v. S.S.Y., ___ Wn.2d ___ (Oct.28, 2010)
Facts: S.S.Y., a juvenile, was convicted of first degree assault and first degree robbery for attacking another juvenile and taking his MP3 player.
Held: The legislature intended to punish first degree assault and first degree robbery as separate crimes. They do not merge in the juvenile context.
71.09: In a Chapter 71.09 RCW trial, the court erred when it allowed the admission of evidence about the treatment available at the Special Commitment Center and about the possibility of future release to a less restrictive alternative.
71.09: In a Chapter 71.09 RCW trial, it is relevant evidence that a person would be subject to another 71.09 proceeding if that person were released and committed a recent overt act.
In re Post, ___ Wn.2d ___ (Oct.28, 2010)
Facts: The State sought to have Mr. Post civilly committed under Chapter 71.09 RCW. At trial the court allowed the State to present evidence about the treatment that would be available to Mr. Post if he were civilly committed and about the possibility of future release to a less restrictive alternative.
Held: The court erred when it allowed the admission of evidence about the treatment available at the Special Commitment Center and about the possibility of future release to a less restrictive alternative. This error was not harmless.
Evidence that, if released, Mr. Post could be subject to another 71.09 proceeding if he were to commit a recent overt act would be relevant on re-trial.
Self-Defense: Self-defense is available when a weapon accidentally discharges, and it was an appropriate defense in this case.
State v. Werner, ___ Wn.2d ___ (Oct.28, 2010)
Facts: Mr. Werner had a handgun with him when he was approached by several of his neighbor’s dogs. He asked his neighbor’s friend to call off the dogs. There was evidence at trial that the neighbor’s friend refused. The gun Mr. Werner held went off, discharging into the ground. Mr. Werner claimed this was an accident. At trial for first degree assault, Mr. Werner requested jury instructions on self defense, but the court refused to give them.
Held: Mr. Werner was entitled to self defense jury instructions. The defense is available when a weapon accidentally discharges. There was evidence here that Mr. Werner was justified in acting in self defense against his neighbor’s friend, who may have refused to call off the dogs.
WASHINGTON COURT OF APPEALS
Privacy Act: Defense interviews with police officers are not private conversations as defined by Chapter 9.73 RCW.
CrR 4.6: A deposition is not appropriate simply because a witness refuses to allow defense counsel to tape record an interview.
State v. Mankin,___ Wn.App.___ (Div. II) (Oct.19, 2010)
Facts: Mr. Mankin was charged with manufacturing methamphetamine, and he sought to interview the police officers involved in the case. The officers were willing to talk to defense counsel, but, because they refused to be tape recorded, defense counsel terminated the interviews. Mr. Mankin then moved to depose the officers, and the trial court granted the motion.
Held: Chapter 9.73 RCW prohibits recording private conversations without the consent of all parties involved. Defense interviews with police officers are not private conversations as defined by Chapter 9.73 RCW.
CrR 4.6(a) allows a deposition only in certain circumstances. One of those circumstances is when a witness refuses to discuss the case. Here, the court erred in ordering depositions. Refusal to be tape recorded is not a refusal to discuss the case.
Sufficiency /Gang Evidence: When the evidence showed the defendant was member of a subgroup of a gang, sufficient evidence showed he was acting as a member of a gang.
Double Jeopardy: Gang intimidation and second degree assault do not constitute the same offense for purposes of double jeopardy.
Bill of Particulars: A bill of particulars does not prejudice a defendant if the defendant knows what the State seeks to prove.
State v. Gatlin,___ Wn.App.___ (Div. III) (Oct.21, 2010)
Facts: Mr. Gatlin and a friend, Mr. Lambert, decided to form a group called the 4 Block Crips in Dayton, Washington as a subset of the Walla Walla gang called the Duce 47 Crips. There were no other members of the 4 Block Crips. Mr. Gatlin and Mr. Lambert invited a third person, M.W., to join the 4 Block Crips. When M.W. declined, Mr. Gatlin and Mr. Lambert said they would beat him up. Later, Mr. Lambert hit and choked M.W. while Mr. Gatlin encouraged him, and Mr. Gatlin separately punched M.W. Still later, Mr. Lambert found M.W. hiding and punched him again. Finally, when M.W. was being driven home, Mr. Gatlin called M.W.’s cell phone and made a threat. The State charged the defendant with several counts of assault and one count of gang intimidation.
Held: On appeal, Mr. Gatlin argued there was not sufficient evidence to show a gang existed. The Court of Appeals disagreed. A gang consists of three or more people. Here, the 4 Block Crips were a subset of the Duce 47 Crips, which had more than 3 members, so there was sufficient evidence Mr. Gatlin acted as part of a gang.
Gang intimidation and second degree assault do not constitute the same offense for purposes of double jeopardy.
The bill of particulars, which alleged Mr. Gatlin was a member of the 4 Block Crips but not the Duce 47 Crips did not deny Mr. Gatlin due process because he was aware of what the State sought to prove.
Search /Seizure: Where the record is not adequate to show why police searched a defendant’s car, the Court of Appeals will not review a claim that police wrongfully searched the car incident to arrest.
State v. Roberts,___ Wn.App.___ (Div. I) (Oct.25, 2010)
Facts: Police arrested Mr. Roberts for DWLS and towed his car. Police searched his car, but it was unclear whether the search was primarily incident to arrest or an inventory search prior to towing the car. Because Mr. Roberts went to trial prior to the U.S. Supreme Court opinion in Gant, he did not challenge the search of his car at the trial level.
Held: The record was inadequate to evaluate Mr. Roberts’ claim that police searched his car incident to arrest.
Search /Seizure: An officer does not seize an individual when the officer makes a permissive request that falls short of immobilizing the individual.
Show Up ID: A show up ID is not impermissibly suggestive because the person identified is in handcuffs.
Crawford: There is no right to confrontation under Crawford at a pre-trial hearing.
State v. Fortun-Cebada,___ Wn.App.___ (Div. I) (Oct.25, 2010)
Facts: Police officers saw what appeared to be a drug deal with Mr. Fortun-Cebada selling drugs to Mr. Walker, but the officers were not able to see what was exchanged. Shortly thereafter, police found Mr. Walker, asked if they could talk to him and asked him to take his hands out of his sweatshirt pocket. Mr. Walker complied and eventually told police he could identify the man who sold him cocaine. Police then held a show up identification, and Mr. Walker identified Mr. Fortun-Cebada.
Held: On appeal, Mr. Fortun-Cebada argued his trial counsel was ineffective for failing to move to suppress on the grounds that police unlawfully seized Mr. Walker and that Mr. Walker’s identification of Mr. Fortun-Cebada was unreliable. The Court of Appeals disagreed. He court held that Mr. Walker was not seized when police asked him to remove his hands from his sweatshirt pocket. Assuming Mr. Fortun-Cebada had standing to challenge the police contact with Mr. Walker, there was no seizure to challenge, only a permissible social contact because the officers’ request did not immobilize Mr. Walker.
The fact that Mr. Fortun-Cebada was in handcuffs when Mr. Walker identified him did not make the show up ID impermissibly suggestive.
There is no right to confrontation at a pre-trial 3.6 hearing under Crawford, so it was not ineffective assistance of counsel for the trial attorney not to object to the admission of Mr. Walker’s statements at Mr. Fortun-Cebada’s 3.6 hearing.
Corpus Delicti: A child’s allegation that the defendant molested her plus an adult’s testimony that the defendant admitted to the molestation provide corroborative independent evidence of corpus delicti.
State v. Grogan,___ Wn.App.___ (Div. III) (Oct.28, 2010)
Facts: Six-year-old M.L. told an adult that Mr. Grogan had touched her vagina. M.L. died before Mr. Grogan’s trial on first degree child molestation. Mr. Grogan later made incriminating statements to the police and told another adult, Mr. Bowyer, that he had inappropriately touched M.L.
Held: M.L.’s statement and Mr. Bowyer’s testimony provided corroborative independent evidence of the corpus delicti of first degree child molestation, thus allowing admission of Mr. Grogan’s statements to police.
Merger/Juvenile Sentencing: First degree assault and first degree robbery do not merge in the juvenile context.
State v. S.S.Y., ___ Wn.2d ___ (Oct.28, 2010)
Facts: S.S.Y., a juvenile, was convicted of first degree assault and first degree robbery for attacking another juvenile and taking his MP3 player.
Held: The legislature intended to punish first degree assault and first degree robbery as separate crimes. They do not merge in the juvenile context.
71.09: In a Chapter 71.09 RCW trial, the court erred when it allowed the admission of evidence about the treatment available at the Special Commitment Center and about the possibility of future release to a less restrictive alternative.
71.09: In a Chapter 71.09 RCW trial, it is relevant evidence that a person would be subject to another 71.09 proceeding if that person were released and committed a recent overt act.
In re Post, ___ Wn.2d ___ (Oct.28, 2010)
Facts: The State sought to have Mr. Post civilly committed under Chapter 71.09 RCW. At trial the court allowed the State to present evidence about the treatment that would be available to Mr. Post if he were civilly committed and about the possibility of future release to a less restrictive alternative.
Held: The court erred when it allowed the admission of evidence about the treatment available at the Special Commitment Center and about the possibility of future release to a less restrictive alternative. This error was not harmless.
Evidence that, if released, Mr. Post could be subject to another 71.09 proceeding if he were to commit a recent overt act would be relevant on re-trial.
Self-Defense: Self-defense is available when a weapon accidentally discharges, and it was an appropriate defense in this case.
State v. Werner, ___ Wn.2d ___ (Oct.28, 2010)
Facts: Mr. Werner had a handgun with him when he was approached by several of his neighbor’s dogs. He asked his neighbor’s friend to call off the dogs. There was evidence at trial that the neighbor’s friend refused. The gun Mr. Werner held went off, discharging into the ground. Mr. Werner claimed this was an accident. At trial for first degree assault, Mr. Werner requested jury instructions on self defense, but the court refused to give them.
Held: Mr. Werner was entitled to self defense jury instructions. The defense is available when a weapon accidentally discharges. There was evidence here that Mr. Werner was justified in acting in self defense against his neighbor’s friend, who may have refused to call off the dogs.
WASHINGTON COURT OF APPEALS
Privacy Act: Defense interviews with police officers are not private conversations as defined by Chapter 9.73 RCW.
CrR 4.6: A deposition is not appropriate simply because a witness refuses to allow defense counsel to tape record an interview.
State v. Mankin,___ Wn.App.___ (Div. II) (Oct.19, 2010)
Facts: Mr. Mankin was charged with manufacturing methamphetamine, and he sought to interview the police officers involved in the case. The officers were willing to talk to defense counsel, but, because they refused to be tape recorded, defense counsel terminated the interviews. Mr. Mankin then moved to depose the officers, and the trial court granted the motion.
Held: Chapter 9.73 RCW prohibits recording private conversations without the consent of all parties involved. Defense interviews with police officers are not private conversations as defined by Chapter 9.73 RCW.
CrR 4.6(a) allows a deposition only in certain circumstances. One of those circumstances is when a witness refuses to discuss the case. Here, the court erred in ordering depositions. Refusal to be tape recorded is not a refusal to discuss the case.
Sufficiency /Gang Evidence: When the evidence showed the defendant was member of a subgroup of a gang, sufficient evidence showed he was acting as a member of a gang.
Double Jeopardy: Gang intimidation and second degree assault do not constitute the same offense for purposes of double jeopardy.
Bill of Particulars: A bill of particulars does not prejudice a defendant if the defendant knows what the State seeks to prove.
State v. Gatlin,___ Wn.App.___ (Div. III) (Oct.21, 2010)
Facts: Mr. Gatlin and a friend, Mr. Lambert, decided to form a group called the 4 Block Crips in Dayton, Washington as a subset of the Walla Walla gang called the Duce 47 Crips. There were no other members of the 4 Block Crips. Mr. Gatlin and Mr. Lambert invited a third person, M.W., to join the 4 Block Crips. When M.W. declined, Mr. Gatlin and Mr. Lambert said they would beat him up. Later, Mr. Lambert hit and choked M.W. while Mr. Gatlin encouraged him, and Mr. Gatlin separately punched M.W. Still later, Mr. Lambert found M.W. hiding and punched him again. Finally, when M.W. was being driven home, Mr. Gatlin called M.W.’s cell phone and made a threat. The State charged the defendant with several counts of assault and one count of gang intimidation.
Held: On appeal, Mr. Gatlin argued there was not sufficient evidence to show a gang existed. The Court of Appeals disagreed. A gang consists of three or more people. Here, the 4 Block Crips were a subset of the Duce 47 Crips, which had more than 3 members, so there was sufficient evidence Mr. Gatlin acted as part of a gang.
Gang intimidation and second degree assault do not constitute the same offense for purposes of double jeopardy.
The bill of particulars, which alleged Mr. Gatlin was a member of the 4 Block Crips but not the Duce 47 Crips did not deny Mr. Gatlin due process because he was aware of what the State sought to prove.
Search /Seizure: Where the record is not adequate to show why police searched a defendant’s car, the Court of Appeals will not review a claim that police wrongfully searched the car incident to arrest.
State v. Roberts,___ Wn.App.___ (Div. I) (Oct.25, 2010)
Facts: Police arrested Mr. Roberts for DWLS and towed his car. Police searched his car, but it was unclear whether the search was primarily incident to arrest or an inventory search prior to towing the car. Because Mr. Roberts went to trial prior to the U.S. Supreme Court opinion in Gant, he did not challenge the search of his car at the trial level.
Held: The record was inadequate to evaluate Mr. Roberts’ claim that police searched his car incident to arrest.
Search /Seizure: An officer does not seize an individual when the officer makes a permissive request that falls short of immobilizing the individual.
Show Up ID: A show up ID is not impermissibly suggestive because the person identified is in handcuffs.
Crawford: There is no right to confrontation under Crawford at a pre-trial hearing.
State v. Fortun-Cebada,___ Wn.App.___ (Div. I) (Oct.25, 2010)
Facts: Police officers saw what appeared to be a drug deal with Mr. Fortun-Cebada selling drugs to Mr. Walker, but the officers were not able to see what was exchanged. Shortly thereafter, police found Mr. Walker, asked if they could talk to him and asked him to take his hands out of his sweatshirt pocket. Mr. Walker complied and eventually told police he could identify the man who sold him cocaine. Police then held a show up identification, and Mr. Walker identified Mr. Fortun-Cebada.
Held: On appeal, Mr. Fortun-Cebada argued his trial counsel was ineffective for failing to move to suppress on the grounds that police unlawfully seized Mr. Walker and that Mr. Walker’s identification of Mr. Fortun-Cebada was unreliable. The Court of Appeals disagreed. He court held that Mr. Walker was not seized when police asked him to remove his hands from his sweatshirt pocket. Assuming Mr. Fortun-Cebada had standing to challenge the police contact with Mr. Walker, there was no seizure to challenge, only a permissible social contact because the officers’ request did not immobilize Mr. Walker.
The fact that Mr. Fortun-Cebada was in handcuffs when Mr. Walker identified him did not make the show up ID impermissibly suggestive.
There is no right to confrontation at a pre-trial 3.6 hearing under Crawford, so it was not ineffective assistance of counsel for the trial attorney not to object to the admission of Mr. Walker’s statements at Mr. Fortun-Cebada’s 3.6 hearing.
Corpus Delicti: A child’s allegation that the defendant molested her plus an adult’s testimony that the defendant admitted to the molestation provide corroborative independent evidence of corpus delicti.
State v. Grogan,___ Wn.App.___ (Div. III) (Oct.28, 2010)
Facts: Six-year-old M.L. told an adult that Mr. Grogan had touched her vagina. M.L. died before Mr. Grogan’s trial on first degree child molestation. Mr. Grogan later made incriminating statements to the police and told another adult, Mr. Bowyer, that he had inappropriately touched M.L.
Held: M.L.’s statement and Mr. Bowyer’s testimony provided corroborative independent evidence of the corpus delicti of first degree child molestation, thus allowing admission of Mr. Grogan’s statements to police.
Wednesday, October 27, 2010
Case Law Update, Week Ending 10-22-10
Washington State Law
Division Two Court of Appeals
State v. Mankin: The Court held that the privacy act does not apply to defense interviews of police officer witnesses. However, the Court ruled that the Court Rules do not provide any provision for the trial court to order depositions, including depositions of police officers. The Court also found that such witnesses, while they cannot refuse to be interviewed, can set the terms under which they will be interviewed, including refusing to be recorded. The Court noted that Mr. Mankin did not set forth a credible argument that the refusal of a witness to be tape recorded and thus provide the best evidence for impeachment purposes was a due process violation. http://www.courts.wa.gov/opinions/pdf/38977-1.10.doc.pdf
Division Three Court of Appeals
State v. Gatlin: The Court found that sufficient evidence existed to uphold Mr. Gatlin’s convictions for three counts of second degree assault and gang intimidation when, upset by an acquaintance’s refusal to join their gang, Mr. Gatlin and an associate chased down, beat, and choked a man, all the while yelling the name of their gang. After the beating was stopped, Mr. Gatlin is alleged to have threatened the man’s life. The Court likewise found unpersuasive Mr. Gatlin’s argument that the bill of particulars denied him due process, finding that it incorporated the police reports and accurately included all elements of the charged crimes. http://www.courts.wa.gov/opinions/pdf/286207.opn.doc.pdf
In Other News
King County Superior Court Judge Joan E. DuBuque was honored on Friday by the King County Coalition Against Domestic Violence in recognition of her efforts in education, promotion, and coordination of domestic violence preventions services locally and at the national level. http://www.courts.wa.gov/newsinfo/?fa=newsinfo.internetdetail&newsid=1694
Federal Law
Ninth Circuit Court of Appeals
United States v. Berry: The Court noted that Mr. Berry’s pro se motion to vacate his conviction was in actuality a motion for a new trial. The Court found that the motion was brought ten years after the conviction, well outside the three year time limit for such motions, but that the government had waived its objection to the untimeliness of the motion by failing to object to it, and so the district court properly decided the motion on its merits. The court then found that the motion was properly denied when new information regarding the forensic evidence that the government had used against him was merely impeaching and did not discredit the government’s witness, and would not likely result in an acquittal at a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/22/08-35002.pdf
Earp v. Cullen: The Court ruled that the district court erred in allowing a witness to invoke her Fifth Amendment right against self-incrimination, which deprived Mr. Earp of a full and fair opportunity to present his claim of prosecutorial misconduct, in which he had alleged witness intimidation by the prosecutor, during the initial remand of this habeas corpus petition. The Court remanded for a full and fair evidentiary hearing on only that claim, and instructed that the case be reassigned to a different district judge on remand. The Court also affirmed the district court’s denial of Mr. Earp’s ineffective assistance of counsel claim, finding that there was no showing that Mr. Earp’s trial counsel was deficient. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/19/08-99005.pdf
United States v. Lozano: The Court found that evidence of a prior consensual search of Mr. Lozano’s home in which drugs had been found, but after which Mr. Lozano was not charged with a crime, were properly admitted under ER 404(b), as the evidence of Mr. Lozano’s prior possession or sale of narcotics was relevant with respect to his intent and knowledge for the current distribution charge. The Court further found that the postal inspector had a reasonable suspicion that the package addressed to a “Bill Corner” at Mr. Lozano’s P.O. Box contained contraband after it was reported that Mr. Lozano had been asking questions about inspections of incoming packages for drugs. The Court held that the two day detention of the package from a remote location to allow a sniff by a drug-sniffing dog was a reasonable detention.
In his concurrence, Judge O’Scannlain wrote separately to argue that this case would be more easily resolved by the proposition that Mr. Lozano had no legitimate expectation of privacy in the mailed package, as he was not the addressee on the package. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/18/09-30151.pdf
United States v. Mitchell: The Court affirmed Mr. Mitchell’s 180-month imprisonment sentence as a career offender under the United States Sentencing Guidelines following his guilty plea to distributing 52.4 grams of crack cocaine. The Court joined other circuits in clarifying that, even in cases where a defendant is being sentenced as a career offender the sentencing court may depart downward in its sentence to account for the disparity between treatment of crack cocaine and powder under the Guidelines. (Mr. Mitchell appealed arguing that even the 180-month sentence was too long, and that he should have been sentenced to the 120-month minimum for this crime, due to the disparity.) http://www.ca9.uscourts.gov/datastore/opinions/2010/10/20/08-50429.pdf
Division Two Court of Appeals
State v. Mankin: The Court held that the privacy act does not apply to defense interviews of police officer witnesses. However, the Court ruled that the Court Rules do not provide any provision for the trial court to order depositions, including depositions of police officers. The Court also found that such witnesses, while they cannot refuse to be interviewed, can set the terms under which they will be interviewed, including refusing to be recorded. The Court noted that Mr. Mankin did not set forth a credible argument that the refusal of a witness to be tape recorded and thus provide the best evidence for impeachment purposes was a due process violation. http://www.courts.wa.gov/opinions/pdf/38977-1.10.doc.pdf
Division Three Court of Appeals
State v. Gatlin: The Court found that sufficient evidence existed to uphold Mr. Gatlin’s convictions for three counts of second degree assault and gang intimidation when, upset by an acquaintance’s refusal to join their gang, Mr. Gatlin and an associate chased down, beat, and choked a man, all the while yelling the name of their gang. After the beating was stopped, Mr. Gatlin is alleged to have threatened the man’s life. The Court likewise found unpersuasive Mr. Gatlin’s argument that the bill of particulars denied him due process, finding that it incorporated the police reports and accurately included all elements of the charged crimes. http://www.courts.wa.gov/opinions/pdf/286207.opn.doc.pdf
In Other News
King County Superior Court Judge Joan E. DuBuque was honored on Friday by the King County Coalition Against Domestic Violence in recognition of her efforts in education, promotion, and coordination of domestic violence preventions services locally and at the national level. http://www.courts.wa.gov/newsinfo/?fa=newsinfo.internetdetail&newsid=1694
Federal Law
Ninth Circuit Court of Appeals
United States v. Berry: The Court noted that Mr. Berry’s pro se motion to vacate his conviction was in actuality a motion for a new trial. The Court found that the motion was brought ten years after the conviction, well outside the three year time limit for such motions, but that the government had waived its objection to the untimeliness of the motion by failing to object to it, and so the district court properly decided the motion on its merits. The court then found that the motion was properly denied when new information regarding the forensic evidence that the government had used against him was merely impeaching and did not discredit the government’s witness, and would not likely result in an acquittal at a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/22/08-35002.pdf
Earp v. Cullen: The Court ruled that the district court erred in allowing a witness to invoke her Fifth Amendment right against self-incrimination, which deprived Mr. Earp of a full and fair opportunity to present his claim of prosecutorial misconduct, in which he had alleged witness intimidation by the prosecutor, during the initial remand of this habeas corpus petition. The Court remanded for a full and fair evidentiary hearing on only that claim, and instructed that the case be reassigned to a different district judge on remand. The Court also affirmed the district court’s denial of Mr. Earp’s ineffective assistance of counsel claim, finding that there was no showing that Mr. Earp’s trial counsel was deficient. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/19/08-99005.pdf
United States v. Lozano: The Court found that evidence of a prior consensual search of Mr. Lozano’s home in which drugs had been found, but after which Mr. Lozano was not charged with a crime, were properly admitted under ER 404(b), as the evidence of Mr. Lozano’s prior possession or sale of narcotics was relevant with respect to his intent and knowledge for the current distribution charge. The Court further found that the postal inspector had a reasonable suspicion that the package addressed to a “Bill Corner” at Mr. Lozano’s P.O. Box contained contraband after it was reported that Mr. Lozano had been asking questions about inspections of incoming packages for drugs. The Court held that the two day detention of the package from a remote location to allow a sniff by a drug-sniffing dog was a reasonable detention.
In his concurrence, Judge O’Scannlain wrote separately to argue that this case would be more easily resolved by the proposition that Mr. Lozano had no legitimate expectation of privacy in the mailed package, as he was not the addressee on the package. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/18/09-30151.pdf
United States v. Mitchell: The Court affirmed Mr. Mitchell’s 180-month imprisonment sentence as a career offender under the United States Sentencing Guidelines following his guilty plea to distributing 52.4 grams of crack cocaine. The Court joined other circuits in clarifying that, even in cases where a defendant is being sentenced as a career offender the sentencing court may depart downward in its sentence to account for the disparity between treatment of crack cocaine and powder under the Guidelines. (Mr. Mitchell appealed arguing that even the 180-month sentence was too long, and that he should have been sentenced to the 120-month minimum for this crime, due to the disparity.) http://www.ca9.uscourts.gov/datastore/opinions/2010/10/20/08-50429.pdf
Tuesday, October 12, 2010
Criminal Case Law Update 10-8-10
Washington State Law
Washington State Supreme Court
O’Neill v. City of Shoreline: The Court ruled that metadata associated with public records is itself a public record and is subject to disclosure under the Public Records Act. http://www.courts.wa.gov/opinions/pdf/823979.opn.pdf
In his dissent, Justice Alexander argued that the end result in this case, that the City of Shoreline be ordered to examine the hard drive of its deputy mayor’s home computer, was improper. The dissent argued that what is contained on the hard drive of a public employee’s personal home computer, whether it is deemed metadata or something else, cannot be a public record, and should not be subject to search. http://www.courts.wa.gov/opinions/pdf/823979.no1.pdf
State v. Garcia-Salgado: The Court ruled that a cheek swab for DNA evidence is a search that intrudes into the body, and must be made pursuant to an order entered under CrR 4.7(b)(2)(vi). However, the court cautioned, the order must be supported by probable case based on oath or affirmation, be entered by a neutral and detached magistrate, describe the place to be searched and the thing to be seized, and demonstrate that the desired evidence will be found, the test is reasonable, and the test is performed in a reasonable manner. Because it was unclear in this case what evidence, if any, was before the trial court when it determined probable cause, the Court on appeal could not determine there was probable cause for the search of Mr. Garcia-Salgado’s DNA. http://www.courts.wa.gov/opinions/pdf/831564.opn.pdf
State v. Ish: The Court affirmed Mr. Ish’s conviction for second degree felony murder, finding that while it was error for the prosecutor to be allowed to reference a plea agreement with the State’s witness, Mr. Ish’s jail cellmate David Otterson during direct examination by asking Mr. Otterson if the agreement required him to testify truthfully, the error was harmless. The court did note that had the witnesses’ credibility been attacked on cross examination, the prosecutor could reference the agreement and promise of truthful testimony on redirect. http://www.courts.wa.gov/opinions/pdf/833087.opn.pdf
Justice Stephens, joined by justices Owens, Fairhurst, and James Johnson, concurred with the result of the majority, but disagreed with its reasoning. The concurrence argued that the questioning of Mr. Otterson was not error at all. http://www.courts.wa.gov/opinions/pdf/833087.co1.pdf
In his dissent, Justice Sanders argued that the trial court erred in allowing the State to reference the promise of truthfulness in Mr. Otterson’s plea agreement in its direct examination, and further argued that the error was not harmless, as it deprived Mr. Ish of the right to a fair trial. http://www.courts.wa.gov/opinions/pdf/833087.no1.pdf
State v. Moeurn: The Court reversed Mr. Moeurn’s sentence and remanded for resentencing, finding that the trial court miscalculated his offender score. The Court ruled that the steps for calculating an offender score in the SRA should be followed sequentially, and therefore the lower court’s scoring of a prior offense before determining if it had washed out was in error. http://www.courts.wa.gov/opinions/pdf/829951.opn.pdf
State v. Stubbs: The Court reversed Mr. Stubbs’ exceptional sentence for first degree assault, agreeing with Mr. Stubbs that no injury short of death can substantially exceed the level of bodily harm necessary to satisfy the element of “great bodily harm,” and therefore, because Mr. Stubbs’ victim had not been killed, the trial court erred in imposing an exceptional sentence. In so holding, the Court concluded that the legislature intended the standard range sentence for first degree assault to encompass extreme injuries, including the paralysis and shortened life expectancy suffered by Mr. Stubbs’ victim in this case. http://www.courts.wa.gov/opinions/pdf/816506.opn.pdf
In his dissent, Justice James Johnson argued that extreme injuries such as those suffered by Mr. Stubbs’ victim should be found to substantially exceed the level of harm necessary to satisfy the elements of first degree assault, and that the exceptional sentence in this case was justified. http://www.courts.wa.gov/opinions/pdf/816506.no1.pdf
Division One Court of Appeals
Personal Restraint of Newlun: Mr. Newlun appealed his sentence on guilty pleas to a number of identity theft and forgery charges, contending that his three convictions for identity theft violate double jeopardy. The Court denied Mr. Newlun’s petition, finding that he had not demonstrated a double jeopardy violation on the fact of the record at the time of his pleas. http://www.courts.wa.gov/opinions/pdf/63810-6.pub.doc.pdf
Division Two Court of Appeals
State v. Chesley: The Court held that, while Mr. Chesley’s arrest for car prowling was legal, the subsequent search of his car incident to arrest was not legal, and the search of his trunk pursuant to a warrant based on evidence found in his vehicle was likewise unlawful. Applying the search incident to arrest rules from Patton and Valdez, the Court ruled that there was no evidence that the arresting officer searched Mr. Chesley’s car to prevent destruction or concealment of evidence, nor did he have reason to believe Mr. Chesley was a safety risk at the time of the search, because Mr. Chesley had already been detained and taken into custody.
Judge Quinn-Brintnall dissented, arguing that Mr. Chesley challenged only the probable cause for his arrest, and failed to preserve his challenge to the vehicle search incident to arrest. Alternatively, the dissent argued that the search incident to arrest was proper to allow police to secure evidence of the crime of arrest in open view at the time of arrest. http://www.courts.wa.gov/opinions/pdf/38876-6.10.doc.pdf
State v. Leyerle: The Court reversed Mr. Leyerle’s conviction, finding that the trial court improperly conducted a portion of voir dire outside the courtroom and a new trial should be granted. The Court observed that one juror was interviewed in the hallway regarding a prospective bias in the case, and noted that conducting any portion of voir dire out of the courtroom constitutes closure of the proceedings and mandates a Bone-Club analysis even if the trial court has not explicitly closed the proceedings. Because there was no such analysis here, the right to an open proceeding was violated.
Judge Hunt dissented, arguing that the separate voir dire of the single prospective juror in this case was not closed to the public. However, even if it was so closed, the dissent argued that the interview of the sole biased juror outside the courtroom for two minutes in the hallway does not warrant a new trial because it served the basic purpose of the right to trial, to ensure "a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny." http://www.courts.wa.gov/opinions/pdf/37086-7.10.doc.pdf
Federal Law
Ninth Circuit Court of Appeals
Farrakhan v. Gregoire: The Court held that plaintiffs bringing a challenge to the felon disenfranchisement law under the Voting Rights Act based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. The Court declined to rule on the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates the VRA. In this case, the Court found that the plaintiffs “presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained.” Therefore, the Court ruled that the plaintiffs in this case did not show a violation of the VRA, and the district court’s summary judgment order against the plaintiffs was affirmed. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669.pdf
Judge Thomas, joined by Judges Schroeder, McKeown, and Wardlaw, concurred in the result, but argued that the district court’s order should be affirmed because the claims for prospective injunctive relief are moot in light of the state’s subsequent repeal of the felon disenfranchisement law. The concurrence also argued that the district court properly concluded that the disenfranchisement statute did not violate the VRA. Finally, the concurrence argued that proof of discriminatory intent is not required for a VRA challenge. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669c1.pdf
Judge Graber also concurred in the judgment, but noted that she would not have reached the issue addressed by the majority, and therefore did not concur in the opinion. Instead, Judge Graber argued that the case should have been resolved on the ground specifically remanded to the district court previously, disagreeing with the majority’s discretionary decision to resolve this case on its chosen ground. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669c2.pdf
United States v. Flores-Blanco: The Court upheld Mr. Flores-Blanco’s conviction for bringing an unauthorized alien to the United States for financial gain; conspiracy to bring an unauthorized alien to the United States; and inducing and encouraging an unauthorized alien to enter the United States. The Court found that the district court did not err in refusing to compel the government to grant use immunity to Mr. Flores-Blanco’s co-defendant, ruling that there was no evidence that the government caused the co-defendant to invoke his right against self-incrimination or that the government had granted use immunity to government witnesses while declining to give it to Mr. Flores-Blanco’s co-defendant. The Court found no error in the district court’s ruling allowing Mr. Flores-Blanco’s co-defendant to assert the Fifth Amendment in his testimony or in allowing a blanket assertion of the privilege against self-incrimination. Further, the Court found that there was no error in the admission of evidence of Mr. Flores-Blanco’s prior bad acts, finding that the acts were sufficiently similar to the current charge, not too remote in time, had been proven by a preponderance of the evidence, and that the prejudice of their admission did not outweigh their probative value. Finally, the Court found that there was sufficient evidence to support the convictions. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/04/09-50040.pdf
United States v. Garcia-Jimenez: The Court affirmed Mr. Garcia-Jimenez’ sentence upon his plea of guilty to being an illegal alien found in the United States after deportation, finding that the district court properly added two criminal history points for commission of the crime while under another criminal justice sentence and one criminal history for commission of the current offense less than two years after release from imprisonment on a robbery offense. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/06/09-50304.pdf
Washington State Supreme Court
O’Neill v. City of Shoreline: The Court ruled that metadata associated with public records is itself a public record and is subject to disclosure under the Public Records Act. http://www.courts.wa.gov/opinions/pdf/823979.opn.pdf
In his dissent, Justice Alexander argued that the end result in this case, that the City of Shoreline be ordered to examine the hard drive of its deputy mayor’s home computer, was improper. The dissent argued that what is contained on the hard drive of a public employee’s personal home computer, whether it is deemed metadata or something else, cannot be a public record, and should not be subject to search. http://www.courts.wa.gov/opinions/pdf/823979.no1.pdf
State v. Garcia-Salgado: The Court ruled that a cheek swab for DNA evidence is a search that intrudes into the body, and must be made pursuant to an order entered under CrR 4.7(b)(2)(vi). However, the court cautioned, the order must be supported by probable case based on oath or affirmation, be entered by a neutral and detached magistrate, describe the place to be searched and the thing to be seized, and demonstrate that the desired evidence will be found, the test is reasonable, and the test is performed in a reasonable manner. Because it was unclear in this case what evidence, if any, was before the trial court when it determined probable cause, the Court on appeal could not determine there was probable cause for the search of Mr. Garcia-Salgado’s DNA. http://www.courts.wa.gov/opinions/pdf/831564.opn.pdf
State v. Ish: The Court affirmed Mr. Ish’s conviction for second degree felony murder, finding that while it was error for the prosecutor to be allowed to reference a plea agreement with the State’s witness, Mr. Ish’s jail cellmate David Otterson during direct examination by asking Mr. Otterson if the agreement required him to testify truthfully, the error was harmless. The court did note that had the witnesses’ credibility been attacked on cross examination, the prosecutor could reference the agreement and promise of truthful testimony on redirect. http://www.courts.wa.gov/opinions/pdf/833087.opn.pdf
Justice Stephens, joined by justices Owens, Fairhurst, and James Johnson, concurred with the result of the majority, but disagreed with its reasoning. The concurrence argued that the questioning of Mr. Otterson was not error at all. http://www.courts.wa.gov/opinions/pdf/833087.co1.pdf
In his dissent, Justice Sanders argued that the trial court erred in allowing the State to reference the promise of truthfulness in Mr. Otterson’s plea agreement in its direct examination, and further argued that the error was not harmless, as it deprived Mr. Ish of the right to a fair trial. http://www.courts.wa.gov/opinions/pdf/833087.no1.pdf
State v. Moeurn: The Court reversed Mr. Moeurn’s sentence and remanded for resentencing, finding that the trial court miscalculated his offender score. The Court ruled that the steps for calculating an offender score in the SRA should be followed sequentially, and therefore the lower court’s scoring of a prior offense before determining if it had washed out was in error. http://www.courts.wa.gov/opinions/pdf/829951.opn.pdf
State v. Stubbs: The Court reversed Mr. Stubbs’ exceptional sentence for first degree assault, agreeing with Mr. Stubbs that no injury short of death can substantially exceed the level of bodily harm necessary to satisfy the element of “great bodily harm,” and therefore, because Mr. Stubbs’ victim had not been killed, the trial court erred in imposing an exceptional sentence. In so holding, the Court concluded that the legislature intended the standard range sentence for first degree assault to encompass extreme injuries, including the paralysis and shortened life expectancy suffered by Mr. Stubbs’ victim in this case. http://www.courts.wa.gov/opinions/pdf/816506.opn.pdf
In his dissent, Justice James Johnson argued that extreme injuries such as those suffered by Mr. Stubbs’ victim should be found to substantially exceed the level of harm necessary to satisfy the elements of first degree assault, and that the exceptional sentence in this case was justified. http://www.courts.wa.gov/opinions/pdf/816506.no1.pdf
Division One Court of Appeals
Personal Restraint of Newlun: Mr. Newlun appealed his sentence on guilty pleas to a number of identity theft and forgery charges, contending that his three convictions for identity theft violate double jeopardy. The Court denied Mr. Newlun’s petition, finding that he had not demonstrated a double jeopardy violation on the fact of the record at the time of his pleas. http://www.courts.wa.gov/opinions/pdf/63810-6.pub.doc.pdf
Division Two Court of Appeals
State v. Chesley: The Court held that, while Mr. Chesley’s arrest for car prowling was legal, the subsequent search of his car incident to arrest was not legal, and the search of his trunk pursuant to a warrant based on evidence found in his vehicle was likewise unlawful. Applying the search incident to arrest rules from Patton and Valdez, the Court ruled that there was no evidence that the arresting officer searched Mr. Chesley’s car to prevent destruction or concealment of evidence, nor did he have reason to believe Mr. Chesley was a safety risk at the time of the search, because Mr. Chesley had already been detained and taken into custody.
Judge Quinn-Brintnall dissented, arguing that Mr. Chesley challenged only the probable cause for his arrest, and failed to preserve his challenge to the vehicle search incident to arrest. Alternatively, the dissent argued that the search incident to arrest was proper to allow police to secure evidence of the crime of arrest in open view at the time of arrest. http://www.courts.wa.gov/opinions/pdf/38876-6.10.doc.pdf
State v. Leyerle: The Court reversed Mr. Leyerle’s conviction, finding that the trial court improperly conducted a portion of voir dire outside the courtroom and a new trial should be granted. The Court observed that one juror was interviewed in the hallway regarding a prospective bias in the case, and noted that conducting any portion of voir dire out of the courtroom constitutes closure of the proceedings and mandates a Bone-Club analysis even if the trial court has not explicitly closed the proceedings. Because there was no such analysis here, the right to an open proceeding was violated.
Judge Hunt dissented, arguing that the separate voir dire of the single prospective juror in this case was not closed to the public. However, even if it was so closed, the dissent argued that the interview of the sole biased juror outside the courtroom for two minutes in the hallway does not warrant a new trial because it served the basic purpose of the right to trial, to ensure "a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny." http://www.courts.wa.gov/opinions/pdf/37086-7.10.doc.pdf
Federal Law
Ninth Circuit Court of Appeals
Farrakhan v. Gregoire: The Court held that plaintiffs bringing a challenge to the felon disenfranchisement law under the Voting Rights Act based on the operation of a state’s criminal justice system must at least show that the criminal justice system is infected by intentional discrimination or that the felon disenfranchisement law was enacted with such intent. The Court declined to rule on the question of whether a plaintiff who has made the required showing would necessarily establish that a felon disenfranchisement law violates the VRA. In this case, the Court found that the plaintiffs “presented no evidence of intentional discrimination in the operation of Washington’s criminal justice system and argue no other theory under which a section 2 challenge might be sustained.” Therefore, the Court ruled that the plaintiffs in this case did not show a violation of the VRA, and the district court’s summary judgment order against the plaintiffs was affirmed. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669.pdf
Judge Thomas, joined by Judges Schroeder, McKeown, and Wardlaw, concurred in the result, but argued that the district court’s order should be affirmed because the claims for prospective injunctive relief are moot in light of the state’s subsequent repeal of the felon disenfranchisement law. The concurrence also argued that the district court properly concluded that the disenfranchisement statute did not violate the VRA. Finally, the concurrence argued that proof of discriminatory intent is not required for a VRA challenge. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669c1.pdf
Judge Graber also concurred in the judgment, but noted that she would not have reached the issue addressed by the majority, and therefore did not concur in the opinion. Instead, Judge Graber argued that the case should have been resolved on the ground specifically remanded to the district court previously, disagreeing with the majority’s discretionary decision to resolve this case on its chosen ground. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/07/0635669c2.pdf
United States v. Flores-Blanco: The Court upheld Mr. Flores-Blanco’s conviction for bringing an unauthorized alien to the United States for financial gain; conspiracy to bring an unauthorized alien to the United States; and inducing and encouraging an unauthorized alien to enter the United States. The Court found that the district court did not err in refusing to compel the government to grant use immunity to Mr. Flores-Blanco’s co-defendant, ruling that there was no evidence that the government caused the co-defendant to invoke his right against self-incrimination or that the government had granted use immunity to government witnesses while declining to give it to Mr. Flores-Blanco’s co-defendant. The Court found no error in the district court’s ruling allowing Mr. Flores-Blanco’s co-defendant to assert the Fifth Amendment in his testimony or in allowing a blanket assertion of the privilege against self-incrimination. Further, the Court found that there was no error in the admission of evidence of Mr. Flores-Blanco’s prior bad acts, finding that the acts were sufficiently similar to the current charge, not too remote in time, had been proven by a preponderance of the evidence, and that the prejudice of their admission did not outweigh their probative value. Finally, the Court found that there was sufficient evidence to support the convictions. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/04/09-50040.pdf
United States v. Garcia-Jimenez: The Court affirmed Mr. Garcia-Jimenez’ sentence upon his plea of guilty to being an illegal alien found in the United States after deportation, finding that the district court properly added two criminal history points for commission of the crime while under another criminal justice sentence and one criminal history for commission of the current offense less than two years after release from imprisonment on a robbery offense. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/06/09-50304.pdf
Criminal Case Law Update 10-1-10
Washington State Law
Washington State Supreme Court
City of Aberdeen v. Regan: In this plurality opinion, Justice Fairhurst, writing for the majority and joined by Justices Madsen, Charles Johnson, Owens and Stephens upheld the revocation of Mr. Regan’s suspended sentence on another matter after he was accused of fourth degree assault and criminal trespass, despite the fact that he was acquitted of both crimes. The Court held that the probation condition requiring Mr. Regan to have no “criminal violations of law” did not require, as Mr. Regan argued, a conviction or proof of commission of a crime beyond a reasonable doubt for a violation to be found. Rather, the court concluded, “a probation condition that reads "[n]o criminal violations of law" unambiguously restricts a probationer from engaging in conduct that is proscribed by the criminal law.” Because the trial court was reasonably satisfied that a crime had occurred despite Mr. Regan’s acquittal at trial, the Court found that the trial court was authorized to revoke the suspension of Mr. Regan’s sentence. http://www.courts.wa.gov/opinions/pdf/824762.opn.pdf
In his concurrence, Justice Alexander, joined by Justices Chambers and James Johnson noted a “reluctant” concurrence in the result reached by the majority, saying he believed it was “somewhat unfair for a city to seek revocation of Francis Regan's probation for noncompliance with a condition that he have "[n]o criminal violations of law" when Regan was acquitted in that same court of criminal charges that arose from facts identical to those that led to revocation of his probation.” However, because Standlee v. Smith supports the proposition that the city is not estopped from such action, Justice Alexander felt obliged to follow that decision. Justice Alexander then noted that, should the continued viability of Standlee be directly presented to the supreme court during her tenure, he would be included to advance Justice Utter’s position in his dissent in that case, where he argued, “Where the sole reason advocated for petitioner's violation of his parole is the commission of criminal acts upon which he has been adjudged not guilty by application of the beyond a reasonable doubt standard in the superior court of this state, to subsequently remove petitioner's freedom by the application of a lesser standard seems to me to completely ignore the unusually strong language used in [In re] Winship, [397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)], asserting the importance of [the] fundamental right [to due process].” http://www.courts.wa.gov/opinions/pdf/824762.co1.pdf
In his dissent, Justice Sanders argued that the term “no criminal violations of law,” required that any law violation be an actual crime, and to be guilty of a crime, one must be convicted by production of evidence sufficient to demonstrate guilt beyond a reasonable doubt. The dissent argued that the majority’s conclusion that “criminal violations of law” does not refer to any specific burden of proof but only to whether Mr. Regan actually committed acts that, if proved by a preponderance, would violate criminal law, “ignores the very language of the condition,” and rendered its analysis inaccurate. The dissent posited that the majority’s analysis would be correct if the condition had read, “no violations of criminal law,” but could not apply to the condition as it appeared in Mr. Regan’s paperwork. The dissent further argued that the language is ambiguous at worst, as it could be interpreted to require a criminal conviction on proof beyond a reasonable doubt, or to exclude acquittal. Because of this ambiguity, the dissent argued that the rule of lenity should apply and the ambiguity resolved in Mr. Regan’s favor. http://www.courts.wa.gov/opinions/pdf/824762.no1.pdf
Division One Court of Appeals
State v. Green: The Court reversed and remanded for dismissal two convictions for first degree trespass that arose from violations of a notice of trespass issued to Ms. Green by her son’s school district. The Court held that the State had failed to present sufficient evidence to prove that the notice of trespass constituted a lawful condition to her presence at her son’s school, and that it had failed to do so. Further, the court concluded, Ms. Green was not afforded sufficient due process to support a finding that she waived the right to challenge the basis for the notice of trespass. http://www.courts.wa.gov/opinions/pdf/63001-6.pub.doc.pdf
Division Two Court of Appeals
In Re Price: The Court denied Mr. Price’s personal restraint petition, finding that the statutes in effect at the time that Mr. Price’s DOSA sentence was revoked allowed DOC to revoke that sentence for violations of the terms of that sentence, as happened here. The Court further found that the severity of the violations and the risk he poses to the community rebutted the rebuttable presumption that the DOC not revoke until the third hearing unless there was a failure to complete chemical dependency treatment or conviction of a felony. http://www.courts.wa.gov/opinions/pdf/37753-5.10.doc.pdf
Federal Law
United States Court of Appeals for the Ninth Circuit
United States v. George: Mr. George appealed a conviction for failure to register as a convicted sex offender under the Sex Offender Registration and Notification Act (SORNA), claiming his conviction was void as Washington State, the state where he was required to register, has not yet implemented SORNA. Mr. George also argued SORNA’s registration requirement is an invalid exercise of congressional power and violates the Ex Post Facto Clause of the Constitution. The Court appealed Mr. George’s conviction, finding nothing in the Act that conditions an individual’s obligation to register on the state’s implementation of SORNA. The Court further found that the registration requirement in the statute is not vague, and that Mr. George was required to register as a sex offender even before the enactment of SORNA. Finally, the court found that SORNA’s requirements are not outside of Congress’ commerce clause powers, and that the Act does not violate the Ex Post Facto Clause, noting with regard to the latter that Mr. George was under the continuing obligation to register, and that the conviction at issue here was for failing to register after a move to Washington, after enactment of SORNA. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/29/08-30339.pdf
Brown v. Cate: The Court addressed whether the timing and manner of Mr. Brown’s execution was in violation of the Eighth Amendment bar on cruel and unusual punishment. The Court noted that the timing of Mr. Brown’s execution was dictated in part by the fact that the State’s existing inventory of sodium thiopental, to be used in Mr. Brown’s lethal injection, has an expiration date of October 1, 2010. Finding such timing improper, the Court also found improper the district court’s attempt to force Mr. Brown to choose between the single drug method of lethal injection or the previously used three drug method which had already been called into question as causing undue pain. The Court observed that there were no procedures currently in place for administration of the single drug protocol, and that protocol had not yet been properly reviewed and approved, nor could such review be conducted in the few days between the current order and Mr. Brown’s scheduled execution date of September 29, 2010. Thus, the court concluded, the three drug method was the only method available to Mr. Brown, and the Court remanded for further proceedings regarding whether Mr. Brown is entitled to a stay of execution as it would be conducted under the three-drug protocol currently in effect. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/28/1099019ao.pdf
United States v. Briggs: The Court affirmed Mr. Briggs’ conviction upon a plea of guilty to several drug-related charges, but vacated his sentence and remanded for resentencing. The Court found that Mr. Briggs had the capacity to make a knowing and intelligent decision about his plea and understood the consequences he faced. The court concluded that Mr. Briggs’s true complaint was that did not understand the length of his confinement, which he believed would be 200 months, not the 324 months to which he was ultimately sentenced. The Court found that this was not a sufficient reason to allow him to withdraw the plea. The Court also found that Mr. Briggs was not a victim of sentence entrapment, as there was no evidence that the artificially high level of cash and drugs in the stash house run by the government had elevated the crime beyond Mr. Briggs’ capabilities. The Court did find, however, that the district court had erroneously calculated Mr. Briggs’ sentence when it applied a firearm-related enhancement to his offense level, holding that the district court made no findings of fact concerning whether or not Mr. Briggs actually possessed a dangerous weapon in connection with the crime. The Court thus remanded for further findings regarding the enhancement, and a correct sentencing calculation. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/09-30108.pdf
Martinez v. Schriro: The Court denied Mr. Martinez’ federal habeas petition on the grounds that it was procedurally defaulted. The Court further found that Mr. Martinez’ claims of ineffective assistance of counsel did not excuse his procedural default, noting that there is no right to assistance of post-conviction counsel in connection with a petition for post-conviction relief, and therefore Mr. Martinez could not claim ineffective assistance of counsel in this proceeding. Finally, the Court noted that ineffective assistance of post-conviction counsel cannot provide cause to excuse procedural default. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/09-15170.pdf
United States v. Mayweather: The Court affirmed Mr. Mayweather’s guilty plea to possession of a firearm in furtherance of a drug trafficking crime. The Court found that Mr. Mayweather’s decision not to bring to the court’s attention at the time of his plea proceeding his instruction to his counsel to challenge the validity of the search of his apartment, and counsel’s subsequent failure to do so, precludes him from now establishing a fair and just reason to withdraw his plea, as a defendant is barred from withdrawing a plea for reasons that were known to him at the time the plea was entered. The Court further found that the record on appeal was insufficient for the court to determine whether Mr. Mayweather did in fact receive ineffective assistance of counsel and that claim could not be reviewed on appeal. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/08-50449.pdf
United States v. Weyhrauch: In light of the Supreme Court’s recent decision in Skilling v. United States, the Court affirmed the district court’s denial of the government’s motion in limine in this case, noting that under Skilling, nondisclosure of a conflict of interest is no longer a basis for prosecution under 18 U.S.C. § 1346. Therefore, the Court held, the government is precluded from offering evidence to prove a violation of § 1346 based on such nondisclosure. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/07-30339.pdf
Ward v. Ryan: Mr. Ward brought a takings claim against the Arizona State Department of Corrections, seeking immediate access to $50 in inmate earnings withheld by the Department of Corrections and held in a separate fund to be given to him as “gate money” upon his release, noting that his 197 year sentence made it unlikely he would be released from jail prior to his death. The Court upheld the district court’s denial of Mr. Ward’s claim, finding that precedent supported the DOC’s limitation to an inmate’s access to funds without offending protected property interests, and that the DOC in this matter had followed applicable statutes in limiting Mr. Ward’s access to his funds. Further, the court found that Mr. Ward had not been permanently deprived of his funds, and thus he had not been permanently deprived of any property interest in the money. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/07-17156.pdf
United States v. Webster: The Court affirmed Mr. Webster’s convictions for possession with intent to deliver, money laundering, and conspiracy to commit possession with intent and money laundering. The Court found that sufficient evidence supported the convictions. The Court further found that testimony regarding a proposed exhibit was proper when the exhibit itself was not entered into evidence and the discussion was aimed at educating the jury on the different types of methamphetamines, not connecting the methamphetamines with Mr. Webster. Additionally, the court found that admission into evidence of a wire transfer naming Mr. Webster as the recipient was proper, finding that the admission of Mr. Webster’s name on the transfer was admissible as an admission by a party-opponent. Finally, the Court found that jury instructions which failed to define proceeds as profits was not error where, as here, the facts supported a definition of proceeds as all receipts from a criminal enterprise. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/30/09-30173.pdf
Sapp v. Kimbrell: Mr. Sapp brought this section 1983 claim for medical treatment of an eye condition before properly exhausting all administrative remedies as required by the Prison Litigation Reform Act. The Court found that the improper screening of administrative appeals by a prison official may excuse a failure to exhaust under the PLRA. However, the facts here do not show that prison officials improperly screened out Mr. Sapp’s administrative grievances. Therefore, the Court affirmed dismissal of the suit. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/05-15745.pdf
United States Supreme Court
Recordings of Oral Argument: On September 28, 2010, the United States Supreme Court announced that it will make available to the general public tape recordings of all oral arguments before the court at the end of each argument week. The recordings will be posted on the Court's website, www.supremecourt.gov, Friday afternoons. http://sblog.s3.amazonaws.com/wp-content/uploads/2010/09/audiotape-release-9-28-10.pdf
Washington State Supreme Court
City of Aberdeen v. Regan: In this plurality opinion, Justice Fairhurst, writing for the majority and joined by Justices Madsen, Charles Johnson, Owens and Stephens upheld the revocation of Mr. Regan’s suspended sentence on another matter after he was accused of fourth degree assault and criminal trespass, despite the fact that he was acquitted of both crimes. The Court held that the probation condition requiring Mr. Regan to have no “criminal violations of law” did not require, as Mr. Regan argued, a conviction or proof of commission of a crime beyond a reasonable doubt for a violation to be found. Rather, the court concluded, “a probation condition that reads "[n]o criminal violations of law" unambiguously restricts a probationer from engaging in conduct that is proscribed by the criminal law.” Because the trial court was reasonably satisfied that a crime had occurred despite Mr. Regan’s acquittal at trial, the Court found that the trial court was authorized to revoke the suspension of Mr. Regan’s sentence. http://www.courts.wa.gov/opinions/pdf/824762.opn.pdf
In his concurrence, Justice Alexander, joined by Justices Chambers and James Johnson noted a “reluctant” concurrence in the result reached by the majority, saying he believed it was “somewhat unfair for a city to seek revocation of Francis Regan's probation for noncompliance with a condition that he have "[n]o criminal violations of law" when Regan was acquitted in that same court of criminal charges that arose from facts identical to those that led to revocation of his probation.” However, because Standlee v. Smith supports the proposition that the city is not estopped from such action, Justice Alexander felt obliged to follow that decision. Justice Alexander then noted that, should the continued viability of Standlee be directly presented to the supreme court during her tenure, he would be included to advance Justice Utter’s position in his dissent in that case, where he argued, “Where the sole reason advocated for petitioner's violation of his parole is the commission of criminal acts upon which he has been adjudged not guilty by application of the beyond a reasonable doubt standard in the superior court of this state, to subsequently remove petitioner's freedom by the application of a lesser standard seems to me to completely ignore the unusually strong language used in [In re] Winship, [397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)], asserting the importance of [the] fundamental right [to due process].” http://www.courts.wa.gov/opinions/pdf/824762.co1.pdf
In his dissent, Justice Sanders argued that the term “no criminal violations of law,” required that any law violation be an actual crime, and to be guilty of a crime, one must be convicted by production of evidence sufficient to demonstrate guilt beyond a reasonable doubt. The dissent argued that the majority’s conclusion that “criminal violations of law” does not refer to any specific burden of proof but only to whether Mr. Regan actually committed acts that, if proved by a preponderance, would violate criminal law, “ignores the very language of the condition,” and rendered its analysis inaccurate. The dissent posited that the majority’s analysis would be correct if the condition had read, “no violations of criminal law,” but could not apply to the condition as it appeared in Mr. Regan’s paperwork. The dissent further argued that the language is ambiguous at worst, as it could be interpreted to require a criminal conviction on proof beyond a reasonable doubt, or to exclude acquittal. Because of this ambiguity, the dissent argued that the rule of lenity should apply and the ambiguity resolved in Mr. Regan’s favor. http://www.courts.wa.gov/opinions/pdf/824762.no1.pdf
Division One Court of Appeals
State v. Green: The Court reversed and remanded for dismissal two convictions for first degree trespass that arose from violations of a notice of trespass issued to Ms. Green by her son’s school district. The Court held that the State had failed to present sufficient evidence to prove that the notice of trespass constituted a lawful condition to her presence at her son’s school, and that it had failed to do so. Further, the court concluded, Ms. Green was not afforded sufficient due process to support a finding that she waived the right to challenge the basis for the notice of trespass. http://www.courts.wa.gov/opinions/pdf/63001-6.pub.doc.pdf
Division Two Court of Appeals
In Re Price: The Court denied Mr. Price’s personal restraint petition, finding that the statutes in effect at the time that Mr. Price’s DOSA sentence was revoked allowed DOC to revoke that sentence for violations of the terms of that sentence, as happened here. The Court further found that the severity of the violations and the risk he poses to the community rebutted the rebuttable presumption that the DOC not revoke until the third hearing unless there was a failure to complete chemical dependency treatment or conviction of a felony. http://www.courts.wa.gov/opinions/pdf/37753-5.10.doc.pdf
Federal Law
United States Court of Appeals for the Ninth Circuit
United States v. George: Mr. George appealed a conviction for failure to register as a convicted sex offender under the Sex Offender Registration and Notification Act (SORNA), claiming his conviction was void as Washington State, the state where he was required to register, has not yet implemented SORNA. Mr. George also argued SORNA’s registration requirement is an invalid exercise of congressional power and violates the Ex Post Facto Clause of the Constitution. The Court appealed Mr. George’s conviction, finding nothing in the Act that conditions an individual’s obligation to register on the state’s implementation of SORNA. The Court further found that the registration requirement in the statute is not vague, and that Mr. George was required to register as a sex offender even before the enactment of SORNA. Finally, the court found that SORNA’s requirements are not outside of Congress’ commerce clause powers, and that the Act does not violate the Ex Post Facto Clause, noting with regard to the latter that Mr. George was under the continuing obligation to register, and that the conviction at issue here was for failing to register after a move to Washington, after enactment of SORNA. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/29/08-30339.pdf
Brown v. Cate: The Court addressed whether the timing and manner of Mr. Brown’s execution was in violation of the Eighth Amendment bar on cruel and unusual punishment. The Court noted that the timing of Mr. Brown’s execution was dictated in part by the fact that the State’s existing inventory of sodium thiopental, to be used in Mr. Brown’s lethal injection, has an expiration date of October 1, 2010. Finding such timing improper, the Court also found improper the district court’s attempt to force Mr. Brown to choose between the single drug method of lethal injection or the previously used three drug method which had already been called into question as causing undue pain. The Court observed that there were no procedures currently in place for administration of the single drug protocol, and that protocol had not yet been properly reviewed and approved, nor could such review be conducted in the few days between the current order and Mr. Brown’s scheduled execution date of September 29, 2010. Thus, the court concluded, the three drug method was the only method available to Mr. Brown, and the Court remanded for further proceedings regarding whether Mr. Brown is entitled to a stay of execution as it would be conducted under the three-drug protocol currently in effect. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/28/1099019ao.pdf
United States v. Briggs: The Court affirmed Mr. Briggs’ conviction upon a plea of guilty to several drug-related charges, but vacated his sentence and remanded for resentencing. The Court found that Mr. Briggs had the capacity to make a knowing and intelligent decision about his plea and understood the consequences he faced. The court concluded that Mr. Briggs’s true complaint was that did not understand the length of his confinement, which he believed would be 200 months, not the 324 months to which he was ultimately sentenced. The Court found that this was not a sufficient reason to allow him to withdraw the plea. The Court also found that Mr. Briggs was not a victim of sentence entrapment, as there was no evidence that the artificially high level of cash and drugs in the stash house run by the government had elevated the crime beyond Mr. Briggs’ capabilities. The Court did find, however, that the district court had erroneously calculated Mr. Briggs’ sentence when it applied a firearm-related enhancement to his offense level, holding that the district court made no findings of fact concerning whether or not Mr. Briggs actually possessed a dangerous weapon in connection with the crime. The Court thus remanded for further findings regarding the enhancement, and a correct sentencing calculation. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/09-30108.pdf
Martinez v. Schriro: The Court denied Mr. Martinez’ federal habeas petition on the grounds that it was procedurally defaulted. The Court further found that Mr. Martinez’ claims of ineffective assistance of counsel did not excuse his procedural default, noting that there is no right to assistance of post-conviction counsel in connection with a petition for post-conviction relief, and therefore Mr. Martinez could not claim ineffective assistance of counsel in this proceeding. Finally, the Court noted that ineffective assistance of post-conviction counsel cannot provide cause to excuse procedural default. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/09-15170.pdf
United States v. Mayweather: The Court affirmed Mr. Mayweather’s guilty plea to possession of a firearm in furtherance of a drug trafficking crime. The Court found that Mr. Mayweather’s decision not to bring to the court’s attention at the time of his plea proceeding his instruction to his counsel to challenge the validity of the search of his apartment, and counsel’s subsequent failure to do so, precludes him from now establishing a fair and just reason to withdraw his plea, as a defendant is barred from withdrawing a plea for reasons that were known to him at the time the plea was entered. The Court further found that the record on appeal was insufficient for the court to determine whether Mr. Mayweather did in fact receive ineffective assistance of counsel and that claim could not be reviewed on appeal. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/08-50449.pdf
United States v. Weyhrauch: In light of the Supreme Court’s recent decision in Skilling v. United States, the Court affirmed the district court’s denial of the government’s motion in limine in this case, noting that under Skilling, nondisclosure of a conflict of interest is no longer a basis for prosecution under 18 U.S.C. § 1346. Therefore, the Court held, the government is precluded from offering evidence to prove a violation of § 1346 based on such nondisclosure. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/07-30339.pdf
Ward v. Ryan: Mr. Ward brought a takings claim against the Arizona State Department of Corrections, seeking immediate access to $50 in inmate earnings withheld by the Department of Corrections and held in a separate fund to be given to him as “gate money” upon his release, noting that his 197 year sentence made it unlikely he would be released from jail prior to his death. The Court upheld the district court’s denial of Mr. Ward’s claim, finding that precedent supported the DOC’s limitation to an inmate’s access to funds without offending protected property interests, and that the DOC in this matter had followed applicable statutes in limiting Mr. Ward’s access to his funds. Further, the court found that Mr. Ward had not been permanently deprived of his funds, and thus he had not been permanently deprived of any property interest in the money. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/07-17156.pdf
United States v. Webster: The Court affirmed Mr. Webster’s convictions for possession with intent to deliver, money laundering, and conspiracy to commit possession with intent and money laundering. The Court found that sufficient evidence supported the convictions. The Court further found that testimony regarding a proposed exhibit was proper when the exhibit itself was not entered into evidence and the discussion was aimed at educating the jury on the different types of methamphetamines, not connecting the methamphetamines with Mr. Webster. Additionally, the court found that admission into evidence of a wire transfer naming Mr. Webster as the recipient was proper, finding that the admission of Mr. Webster’s name on the transfer was admissible as an admission by a party-opponent. Finally, the Court found that jury instructions which failed to define proceeds as profits was not error where, as here, the facts supported a definition of proceeds as all receipts from a criminal enterprise. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/30/09-30173.pdf
Sapp v. Kimbrell: Mr. Sapp brought this section 1983 claim for medical treatment of an eye condition before properly exhausting all administrative remedies as required by the Prison Litigation Reform Act. The Court found that the improper screening of administrative appeals by a prison official may excuse a failure to exhaust under the PLRA. However, the facts here do not show that prison officials improperly screened out Mr. Sapp’s administrative grievances. Therefore, the Court affirmed dismissal of the suit. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/27/05-15745.pdf
United States Supreme Court
Recordings of Oral Argument: On September 28, 2010, the United States Supreme Court announced that it will make available to the general public tape recordings of all oral arguments before the court at the end of each argument week. The recordings will be posted on the Court's website, www.supremecourt.gov, Friday afternoons. http://sblog.s3.amazonaws.com/wp-content/uploads/2010/09/audiotape-release-9-28-10.pdf
Monday, September 27, 2010
Case law Updates - September 7-17, 2010
WASHINGTON SUPREME COURT
Public Records Act (PRA) – An agency must specify exemption and give a brief explanation how exemption applies when withholding documents.
Sanders v. State ___ Wn.2d ___ (No. 82849-1) (Sep. 16, 2010)
Facts: Justice Sanders sued the AG’s office for inadequately responding to his PRA request and for withholding nonexempt documents in violation of the PRA. This is long in depth case on the PRA with many holdings.
Held: (1) An Agency withholding or redacting a record must specify the exemption and give a brief explanation of how the exemption applies. The AGs office failed to do so here when all it provided was a list of documents and an indication of which exemption applies. (2) The remedy for violating the brief explanation requirement is consideration when awarding costs, attorneys’ fees and penalties. (3) An agency’s decision to produce documents after suit is filed does not admit that the initial withholding was wrongful. (4) The “common interest” doctrine applies to the PRA as it relates to waiver of confidence in communications. (5) The work product privilege protects documents even if they do not specify on their face a relevant controversy. (6) Documents can be exempt as work product even if created before an anticipated controversy. (7) There is a lengthy analysis about proper calculation of penalty for wrongful withholding.
Intimidation of a Public Servant/Sufficiency: Evidence must show an attempt to influence; a suspect’s mere threats or generalized anger is not sufficient on its own.
State v. Montano ___ Wn.2d ___ (No. 82855-5) (Sep. 16 2010)
Facts: Montano was detained for investigation of assault. He refused to cooperate and resisted the officer’s commands. Another officer responded and tazed him, and he was arrested. On the way to jail, he made several threatening and insulting comments to the officer. Montano was charged with assault, resisting arrest and intimidation of a public servant. The trial court granted his motion to dismiss the intimidation count pursuant to Knapstad.
Held: The state can not bring an intimidation charge anytime a defendant insults or threatens a public servant. More than threats alone or anger is necessary to prove intimidation of a public servant. There must be evidence that a suspect engaged in the behavior for the purpose of influencing the public official’s actions.
71.09: State may not compel a polygraph as part of a pre-trial evaluation pursuant to 71.09.040(4).
In re Detention of Hawkins ___ Wn.2d ___ (No. 82907-1)(Sep. 9, 2010)
Facts: The State filed a petition under 71.09 against Hawkins and sought to compel a pre-trial polygraph examination under 71.09.040(4). The statute requires the court, once probable cause is determined, to transfer the person to a facility “for an evaluation as to whether the person is a sexually violent predator.” The statute does not mention the use of a polygraph as part of the evaluation, although elsewhere in 71.09 the legislature has authorized the use of polygraphs.
Held: The legislature did not intend the statute to provide for a polygraph as part of the evaluation. If it had, it would have included the language. 71.09.040(4) prohibits the state from compelling a polygraph as part of a pre-trial evaluation.
Sentencing/Washout: Jail time for a misdemeanor probation violation does not interrupt the washout period on a felony.
State v. Ervin ___ Wn.2d ___ (No. 83244-7) (Sep. 9, 2010)
Facts: Ervin was convicted of felony violation of a no contact order. At sentencing, he argued that his prior class C felonies had washed. He had spent 17 days in jail on a probation violation stemming from a misdemeanor conviction during the five year period he was supposed to be in the community without committing any crime that results in conviction.
Held: Serving jail time for a misdemeanor probation violation does not interrupt the washout period on a felony.
Sentencing/Community Custody: Condition of sentence in drug case barring use of certain items unconstitutionally vague.
State v. Sanchez Valencia ___ Wn.2d ___ (No. 82731-1) (Sep. 9, 2010)
Facts: Sanchez-Valencia and his co-defendant were convicted of drug crimes. Their sentences included conditions barring them from using items that could be used to ingest or process controlled substances or to facilitate the sale or transfer of controlled substances, including scales, pagers, police scanners, and hand held electronic scheduling and data storage devices. Because they were still incarcerated when the initial appeal was heard the COA declined to hear their appeal as not ripe.
Held: The vagueness challenge was ripe and the conditions were unconstitutionally vague.
WASHINGTON COURT OF APPEALS
Lesser Included: Unlawful use of drug paraphernalia is not a lesser offense of possession of a controlled substance.
State v. Laplant ___ Wn.App.___ (Div II) (No. 36902-5)(Sep. 14, 2010)
Facts: LaPlant was charged with possession of methamphetamine after police lawfully searched him and found a baggie with meth residue. He admitted to using meth from the bag the night before. At trial, he sought an instruction on the lesser included offense of use of drug paraphernalia.
Held: A defendant can possess a controlled substance without using drug paraphernalia. Proof that a defendant used paraphernalia requires proof of an element not found in possession.
Confessions: Statements suppressed when deliberate two step interrogation technique undermines Miranda.
State v. Hickman___ Wn.App.___ (Div II) (No. 39039-6)(Sep. 14, 2010)
Facts: Hickman was convicted of failure to register. When officers tried to locate him at his address, they were told by other residents that he moved. Hickman contacted police the same day, and was directed to report to the police station and to fill out a new registration form. He was told there would be an administrative part to his interview, then a criminal investigation portion of the interview. He provided information about his current address and the past address/residence. After doing so, he was advised of his Miranda warnings and provided a statement. He was not advised his pre-Miranda statements would not be used against him.
Held: Post-warning confessions obtained during a deliberate two-step interrogation where the midstream Miranda warnings do not effectively apprise a suspect of his rights must be suppressed. Here, under the unique circumstances of this case, the Miranda warnings were not sufficient to advise Hickman of his rights.
Jury Instructions: Instructions must be clear that there are separate mens rea elements for intentional assault and injury caused by recklessness or negligence.
State v. Holzknecht ___ Wn.App.___ (Div II) (No. 63017-2)(Sep. 13, 2010)
Facts: Holzknecht was charged with three counts of assault of a child 2 for alleged assaults on his infant daughter. He was convicted of two counts as charged and one lesser count of assault on a child 3. On appeal he challenged the jury instructions, arguing the state was relieved of it burden to prove the separate mens rea elements of intentional assaults and that the injury was caused by recklessness or criminal negligence.
Held: The instructions did not relieve the state of its burden. The instructions properly advised the jury of the separate mens rea elements for the assault and the injury. The jury verdict finding the defendant guilty of a lesser in one count further supports a finding that the jury was not confused by the instructions.
Defense: Good faith claim of title defense applies to theft prosecutions and does not extend to theft related crimes such as PSP.
State v. Hawkins ___ Wn.App.___ (Div III) (No. 28118-3)(Sep. 9, 2010)
Facts: The defendant was convicted of possession of stolen property. His attorney failed to raise the defense of good faith claim of title. On appeal, he alleged his attorney was ineffective for failing to raise the defense.
Held: The good faith claim of title defense does not apply to theft related crimes, such as possession of stolen property crimes. Defense counsel was not ineffective for failing to raise the defense.
Unlawful Possession of Firearm (UPFA): Firearm need not be operable during the commission of the crime.
State v. Raleigh ___ Wn.App.___ (Div II) (No. 39221-6)(Sep. 8, 2010)
Facts: Raleigh was arrested with two others leaving the scene of a residential burglary. A search of their vehicle produced a box containing a real gun and two toy guns. He was charged with unlawful possession of a firearm (UPFA). The real gun was not working, pitted and rusty, but it was tested and later made operable by the state’s firearm expert. Raleigh was convicted of unlawful possession of a firearm. On appeal, he argued that the state must prove the firearm was operable for a UPFA charge.
Held: For purpose of the crime of UPFA, the state must prove the defendant possessed a firearm and the relevant prior conviction. The firearm need not be operable at the time of the offense for the crime of UPFA.
Jurisdiction/Tribal Lands: The state has jurisdiction over all Indians while operating a motor vehicle on public roads on an Indian Reservation.
State v. Abrahamson ___ Wn.App.___ (Div I) (No. 62699-0)(Sep. 8, 2010)
Facts: Abrahamson, a member of the Spokane Indian Tribe, was charged in Snohomish County Superior Court with several criminal traffic offenses which occurred on the Tulalip Indian Reservation. He challenged the State’s jurisdiction over criminal traffic matters on tribal land.
Held: The state has assumed jurisdiction over Indians operating motor vehicles on public roads on an Indian Reservation. RCW 37.12.010 is unambiguous.
Public Records Act (PRA) – An agency must specify exemption and give a brief explanation how exemption applies when withholding documents.
Sanders v. State ___ Wn.2d ___ (No. 82849-1) (Sep. 16, 2010)
Facts: Justice Sanders sued the AG’s office for inadequately responding to his PRA request and for withholding nonexempt documents in violation of the PRA. This is long in depth case on the PRA with many holdings.
Held: (1) An Agency withholding or redacting a record must specify the exemption and give a brief explanation of how the exemption applies. The AGs office failed to do so here when all it provided was a list of documents and an indication of which exemption applies. (2) The remedy for violating the brief explanation requirement is consideration when awarding costs, attorneys’ fees and penalties. (3) An agency’s decision to produce documents after suit is filed does not admit that the initial withholding was wrongful. (4) The “common interest” doctrine applies to the PRA as it relates to waiver of confidence in communications. (5) The work product privilege protects documents even if they do not specify on their face a relevant controversy. (6) Documents can be exempt as work product even if created before an anticipated controversy. (7) There is a lengthy analysis about proper calculation of penalty for wrongful withholding.
Intimidation of a Public Servant/Sufficiency: Evidence must show an attempt to influence; a suspect’s mere threats or generalized anger is not sufficient on its own.
State v. Montano ___ Wn.2d ___ (No. 82855-5) (Sep. 16 2010)
Facts: Montano was detained for investigation of assault. He refused to cooperate and resisted the officer’s commands. Another officer responded and tazed him, and he was arrested. On the way to jail, he made several threatening and insulting comments to the officer. Montano was charged with assault, resisting arrest and intimidation of a public servant. The trial court granted his motion to dismiss the intimidation count pursuant to Knapstad.
Held: The state can not bring an intimidation charge anytime a defendant insults or threatens a public servant. More than threats alone or anger is necessary to prove intimidation of a public servant. There must be evidence that a suspect engaged in the behavior for the purpose of influencing the public official’s actions.
71.09: State may not compel a polygraph as part of a pre-trial evaluation pursuant to 71.09.040(4).
In re Detention of Hawkins ___ Wn.2d ___ (No. 82907-1)(Sep. 9, 2010)
Facts: The State filed a petition under 71.09 against Hawkins and sought to compel a pre-trial polygraph examination under 71.09.040(4). The statute requires the court, once probable cause is determined, to transfer the person to a facility “for an evaluation as to whether the person is a sexually violent predator.” The statute does not mention the use of a polygraph as part of the evaluation, although elsewhere in 71.09 the legislature has authorized the use of polygraphs.
Held: The legislature did not intend the statute to provide for a polygraph as part of the evaluation. If it had, it would have included the language. 71.09.040(4) prohibits the state from compelling a polygraph as part of a pre-trial evaluation.
Sentencing/Washout: Jail time for a misdemeanor probation violation does not interrupt the washout period on a felony.
State v. Ervin ___ Wn.2d ___ (No. 83244-7) (Sep. 9, 2010)
Facts: Ervin was convicted of felony violation of a no contact order. At sentencing, he argued that his prior class C felonies had washed. He had spent 17 days in jail on a probation violation stemming from a misdemeanor conviction during the five year period he was supposed to be in the community without committing any crime that results in conviction.
Held: Serving jail time for a misdemeanor probation violation does not interrupt the washout period on a felony.
Sentencing/Community Custody: Condition of sentence in drug case barring use of certain items unconstitutionally vague.
State v. Sanchez Valencia ___ Wn.2d ___ (No. 82731-1) (Sep. 9, 2010)
Facts: Sanchez-Valencia and his co-defendant were convicted of drug crimes. Their sentences included conditions barring them from using items that could be used to ingest or process controlled substances or to facilitate the sale or transfer of controlled substances, including scales, pagers, police scanners, and hand held electronic scheduling and data storage devices. Because they were still incarcerated when the initial appeal was heard the COA declined to hear their appeal as not ripe.
Held: The vagueness challenge was ripe and the conditions were unconstitutionally vague.
WASHINGTON COURT OF APPEALS
Lesser Included: Unlawful use of drug paraphernalia is not a lesser offense of possession of a controlled substance.
State v. Laplant ___ Wn.App.___ (Div II) (No. 36902-5)(Sep. 14, 2010)
Facts: LaPlant was charged with possession of methamphetamine after police lawfully searched him and found a baggie with meth residue. He admitted to using meth from the bag the night before. At trial, he sought an instruction on the lesser included offense of use of drug paraphernalia.
Held: A defendant can possess a controlled substance without using drug paraphernalia. Proof that a defendant used paraphernalia requires proof of an element not found in possession.
Confessions: Statements suppressed when deliberate two step interrogation technique undermines Miranda.
State v. Hickman___ Wn.App.___ (Div II) (No. 39039-6)(Sep. 14, 2010)
Facts: Hickman was convicted of failure to register. When officers tried to locate him at his address, they were told by other residents that he moved. Hickman contacted police the same day, and was directed to report to the police station and to fill out a new registration form. He was told there would be an administrative part to his interview, then a criminal investigation portion of the interview. He provided information about his current address and the past address/residence. After doing so, he was advised of his Miranda warnings and provided a statement. He was not advised his pre-Miranda statements would not be used against him.
Held: Post-warning confessions obtained during a deliberate two-step interrogation where the midstream Miranda warnings do not effectively apprise a suspect of his rights must be suppressed. Here, under the unique circumstances of this case, the Miranda warnings were not sufficient to advise Hickman of his rights.
Jury Instructions: Instructions must be clear that there are separate mens rea elements for intentional assault and injury caused by recklessness or negligence.
State v. Holzknecht ___ Wn.App.___ (Div II) (No. 63017-2)(Sep. 13, 2010)
Facts: Holzknecht was charged with three counts of assault of a child 2 for alleged assaults on his infant daughter. He was convicted of two counts as charged and one lesser count of assault on a child 3. On appeal he challenged the jury instructions, arguing the state was relieved of it burden to prove the separate mens rea elements of intentional assaults and that the injury was caused by recklessness or criminal negligence.
Held: The instructions did not relieve the state of its burden. The instructions properly advised the jury of the separate mens rea elements for the assault and the injury. The jury verdict finding the defendant guilty of a lesser in one count further supports a finding that the jury was not confused by the instructions.
Defense: Good faith claim of title defense applies to theft prosecutions and does not extend to theft related crimes such as PSP.
State v. Hawkins ___ Wn.App.___ (Div III) (No. 28118-3)(Sep. 9, 2010)
Facts: The defendant was convicted of possession of stolen property. His attorney failed to raise the defense of good faith claim of title. On appeal, he alleged his attorney was ineffective for failing to raise the defense.
Held: The good faith claim of title defense does not apply to theft related crimes, such as possession of stolen property crimes. Defense counsel was not ineffective for failing to raise the defense.
Unlawful Possession of Firearm (UPFA): Firearm need not be operable during the commission of the crime.
State v. Raleigh ___ Wn.App.___ (Div II) (No. 39221-6)(Sep. 8, 2010)
Facts: Raleigh was arrested with two others leaving the scene of a residential burglary. A search of their vehicle produced a box containing a real gun and two toy guns. He was charged with unlawful possession of a firearm (UPFA). The real gun was not working, pitted and rusty, but it was tested and later made operable by the state’s firearm expert. Raleigh was convicted of unlawful possession of a firearm. On appeal, he argued that the state must prove the firearm was operable for a UPFA charge.
Held: For purpose of the crime of UPFA, the state must prove the defendant possessed a firearm and the relevant prior conviction. The firearm need not be operable at the time of the offense for the crime of UPFA.
Jurisdiction/Tribal Lands: The state has jurisdiction over all Indians while operating a motor vehicle on public roads on an Indian Reservation.
State v. Abrahamson ___ Wn.App.___ (Div I) (No. 62699-0)(Sep. 8, 2010)
Facts: Abrahamson, a member of the Spokane Indian Tribe, was charged in Snohomish County Superior Court with several criminal traffic offenses which occurred on the Tulalip Indian Reservation. He challenged the State’s jurisdiction over criminal traffic matters on tribal land.
Held: The state has assumed jurisdiction over Indians operating motor vehicles on public roads on an Indian Reservation. RCW 37.12.010 is unambiguous.
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