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