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

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