Monday, January 24, 2011

Case Law Update 1.24.11

Washington State Supreme Court:

State v. Barber: The court overruled State v. Miller to the extent that decision calls for specific performance of a plea agreement that would bind the court to impose a sentence that is contrary to law; in this case, a plea agreement that failed to include a statutorily mandated term of community custody. The Court limited the remedy of specific performance to the situation in which the State breaches its promise to make a specific charging decision or recommendation to the sentencing court.

State v. Schultz: In a plurality opinion authored by Justice Chambers and joined by Justices Sanders, Stephens, James Johnson and Charles Johnson, the Court overturned Ms. Schultz’ conviction for possession of illegal substances. Here, the State claimed entry was proper under the emergency exception when police had a report of yelling in an apartment and heard only raised voices, including a man saying he needed his space prior to knocking on the door. After contacting Ms. Schultz, who initially denied that there was anyone else in the apartment and then called a male out of his room, police entered the apartment based only on Ms. Schultz’ acquiescence to their entry. The Court held that these facts were insufficient to support entry under the emergency exception. In so doing, the Court made modifications to the test under which the emergency aid exception may be applied. The Court further held that the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, and further – and more importantly – specifically found that “mere acquiescence to an officer’s entry is not consent and not an exception to our state’s constitutional protection of the privacy of the home.”

In her dissent, Justice Fairhurst, joined by Justices Madsen, Alexander, and Owens, argued that the majority altered the three part test for the finding of entry under the emergency aid exception, and adopted new, unnecessary factors to add to the test. The dissent further argued that under the original three factors, the application of the emergency aid exception should stand and the conviction should have been affirmed.

Disciplinary Proceeding Against J. David Smith: The court held that a rule 10.14(c) of the Rules of Enforcement of Lawyer Conduct (ELC), which provides that a civilian criminal conviction is conclusive evidence of the underlying misconduct at an attorney disciplinary proceeding, does not violate state and federal constitutional requirements. Mr. Smith was disbarred, as recommended by the hearing officer.

Disciplinary Proceeding Against Paul King: Mr. King, who pled guilty to federal mail fraud, challenged the subsequent disbarment recommendation, arguing that the proceedings against him were unfair, that disciplinary counsel should have been disqualified, that the hearing officer failed to follow hearing rules with regard to settlement of the hearing transcript, and that Mr. King’s guilty plea should not be binding where he was not permitted to enter an Alford plea. The court found Mr. Kings’ disbarment warranted and his arguments against such action meritless.

Division One Court of Appeals:

State v. Miles: The Court remanded this case for further proceedings, finding that the trial court improperly decided that evidence found in a search warrant for Mr. Miles’ bank records that was related to a complaint filed against Mr. Miles with the Securities Division of the Department of Financial Institutions was suppressible. The Court found that the trial court improperly applied the independent source exception, under which an unlawful search does not invalidate a subsequent search if (1) the issuance of the search warrant is based on untainted, independently obtained information, and (2) the State's decision to seek the warrant is not motivated by the previous unlawful search and seizure. Because there was no dispute that the search warrant application in this case was based on untainted evidence and did not contain any information learned from the illegal search and seizure, it was not clear that the trial court used the correct legal standard in analyzing the independent source exception, and the court did not address the question of whether the State's decision to seek the warrant was motivated by evidence obtained in the previous unlawful search, the Court remanded.

State v. Williams: The Court found that Mr. Williams’ rights were not violated by the imposition of an exceptional sentence that did not exceed the statutory maximum when there had been a jury finding that Mr. Williams committed the crime under aggravating circumstances. The Court further found that Mr. Williams additional claims of error were unpersuasive, including a claim that the trial court denied him due process when it did not reinstruct the jury on the “presumption of innocence” during the aggravating circumstances portion of the trial and a claim that the trial court erred in denying his motion for a retrial based on spectator misconduct.

State v. Winkle: The Court affirmed Mr. Winkle’s sentence for convictions on two counts of rape of a child in the third degree. The trial court had imposed a term of 60 months, the statutory maximum for this offense, and a term of community custody for earned early release limited to the statutory maximum. The court found that the sentence was in line with recent amendments to the SRA, which prohibits a term of confinement and a term of community custody in excess of the statutory maximum, as the SRA in any event requires that a defendant convicted of a sex offense must be transferred to community custody in lieu of earned early release, and the court specifically mandated that the sentence imposed would not exceed the statutory maximum sentence.

State v. Brown: The Court affirmed Mr. Brown’s convictions, finding that the trial court correctly found that multiple no contact order violations based on contact on separate days did not violate double jeopardy, and that the trial court properly declined to give a Petrich instruction because Mr. Brown engaged in a continuing course of conduct. Further, the Court found that no prejudice resulted when the State argued that Mr. Brown’s alibi was not credible, and that Mr. Brown received effective assistance of counsel because his counsel’s performance was not deficient. Finally, the Court found that Mr. Brown’s argument that the State failed to prove underlying criminal conduct fails under Bunker.

Detention of Ticeson: The Court affirmed Mr. Ticeson’s sexually violent predator commitment, finding that, as he is not a criminal defendant, Mr. Ticeson has no rights under article 1, section 22 of the Washington Constitution and therefore the trial court’s failure to require a jury unanimity as to whether Mr. Ticeson suffered from a mental abnormality and/or personality disorder which made him likely to engage in predatory acts of sexual violence if not confined to a secure facility. Further, the Court found that the court’s in-chambers conferences dealing with purely legal matters did not violate Mr. Ticeson’s right to an open proceeding.

Division Two Court of Appeals:

State v. McKague: The Court upheld Mr. McKague’s convictions for third degree theft and second degree assault, as well as his lifetime sentence as a persistent offender. The Court found that the trial court properly exercised its discretion in declining to accept Mr. McKague’s request to waive a jury, that there was sufficient evidence of substantial bodily harm to support his second degree assault conviction, that the to convict instruction for second degree assault did not create an impermissible presumption that relieved the State of its burden of proof, that he was not denied ineffective assistance of counsel when his attorney withdrew a proposed instruction on an inferior degree offense, and that the fact that a judge rather than a jury found the existence of his prior convictions by a preponderance of the evidence rather than beyond a reasonable doubt did not violate his due process and equal protection rights.

In his partial concurrence and partial dissent, Judge Armstrong disagreed with the lead opinion’s conclusion that the evidence was sufficient to uphold a conviction for second degree assault, arguing that the lead opinion erroneously applied the definition of substantial bodily harm, and that the bruising in this case was did not meet that definition.

In her partial concurrence and partial dissent, Judge Quinn-Brintnall agreed that the trial court properly refused Mr. McKague’s bench trial request, that the jury instructions and the evidence properly support the jury verdict finding Mr. McKague guilty of second degree assault, and concurred that Mr. McKague's convictions should be affirmed. However, Judge Quinn-Brintnall argued that Judge Armstrong’s stated concern about the improper use of expert testimony to support the lead opinion's second degree assault sufficiency analysis is unfounded. Further, the concurrence/dissent argued that the lead opinion failed to comply with constitutional principles articulated in Apprendi and Blakely when it held that Mr. McKague was not entitled to have a jury find him a persistent offender beyond a reasonable doubt before being sentenced to life without possibility of parole. Judge Quinn-Brintnall argued that under Blakely, a trial court sitting without a jury may not constitutionally sentence a defendant to life without the possibility of parole on a class B felony that otherwise carries a maximum term of 10 years.

The lead opinion and both dissents/concurrences may be found at:

State v. Rice: The Court ruled that RCW 9.94A.835, .836, and .837, which involve special allegations of sexual motivation, predation, and a victim under 15 years of age, respectively, did not violate the separation of powers doctrine, did not improperly involve the trial court in plea bargaining, and did not violate due process or Eighth Amendment rights. Further, the Court held that a sentencing enhancement that mirrored and element in Ms. Rice’s underling crime (that the victim was under 15 years of age) did not violate double jeopardy, and that Ms. Rice’s sentence was not illegal.

State v. Bluehorse: The Court affirmed Mr. Bluehorse’s conviction for drive-by shooting but reversed his exceptional sentence based on a gang aggravator, finding that the trial court failed to base the sentence on substantial and compelling facts based on the jury’s verdict finding Mr. Bluehorse guilty of drive-by shooting with a gang aggravator. Rather, the court found that the sentence was imposed in an attempt to achieve parity with Mr. Bluehorse’s co-defendant’s standard range sentence for first degree assault based on his offender score, and violated the real facts doctrine. The Court found meritless, however, Mr. Bluehorse’s remaining contentions, that his right to public trial was violated, that the prosecution was vindictive, that his motions for a mistrial should have been granted, that the trial court should not have granted a two-month recess during the trial despite the fact it was agreed to by all parties, that the state erroneously used police reports to refresh witness’ memories, and that the cumulative errors deprived him of a fair trial.

Division Three Court of Appeals:

State v. Brown: The Court found that Mr. Brown’s attorney’s failure to research and advise him of the pendency of Arizona v. Gant, which Mr. Brown claimed would have required suppression of evidence against him, did not constitute ineffective assistance of counsel. The Court reasoned that to adopt Mr. Brown’s suggested standard, which would have required defense counsel to perform computer research to determine that the opinion was pending and that the lower court’s holding was on point and favorable to his position “would place an unreasonable burden on defense counsel and set a standard for diligence that obliges counsel to raise issues in anticipation of any possible change in the law. The burden on defense counsel would be especially onerous in the plea bargain context, because the consequence of a mistaken prediction could be far more adverse than time and effort spent on a failed argument -- it could be the lost offer of a favorable plea.”

State v. Castro: The court found that the trial court’s decision of pretrial motions on legal matters in chambers with a later statement regarding those decisions in open court with an invitation to counsel to object did not violate Mr. Castro’s constitutional right to a public trial. The Court found that the matters decided did not involve any fact finding required to be open to the public, and the trial court was therefore not required to engage in a Bone-Club analysis prior to deciding the matters in chambers.

Federal Law

Ninth Circuit Court of Appeals:

United States v. Liu: The Court affirmed Mr. Liu’s convictions for conspiracy to import, transfer, and sell high quality counterfeit United States currency. The Court found that Mr. Liu’s speedy trial rights were not violated, as the speedy trial clock restarted when his wife was added to the case as a co-defendant. The Court further found that the district court did not err in failing to give a multiple conspiracy jury instruction because there was no potential for spillover guilt in this case, and likewise did not error when it failed to give a specific unanimity jury instruction as there was no proof the omission affected his substantial rights.

United States v. Begay: The Court found that there was sufficient evidence to establish premeditation in support of Mr. Begay’s convictions for first degree murder, and upheld the two convictions. Specifically, the Court found that evidence that Mr. Begay had stopped near an unknown vehicle on the highway, gotten out and walked to the vehicle, where he spoke briefly to the occupants, and then returned to his truck and retrieved a gun, which he used to shoot both occupants of the car, gave him time to formulate a purpose and plan to kill the occupants of the other vehicle.

Judge Reinhardt, joined by Judge Berzon, dissented, arguing that the minimal facts set forth by the majority in its opinion failed to establish premeditation, as there was no evidence that Mr. Began reflected upon, planned, or otherwise premeditated the killing.

United States v. Basher: The Court upheld Mr. Basher’s conviction for illegal discharge of a firearm on park lands. The court found that the officers’ interaction with Mr. Basher in this case was a valid Terry encounter, and that Mr. Basher’s Fifth Amendment rights were not violated. The Court further held that Mr. Basher’s Fourth Amendment rights were not violated, as he consented to the retrieval of the shotgun from his tent. Finally, the Court found that the area of a campsite outside of a tent in these circumstances is not curtilage.

Miller v. Oregon Board of Parole: The Court held that Oregon’s aggravated murder review statute creates a federally-protected liberty interest in early parole eligibility, and the Due Process Clause requires that the Board of Parole’s determinations be supported by “substantial evidence” as that standard is defined under Oregon law. In this case, the Court found that the Board’s denial of relief at the conclusion of Mr. Miller’s murder review hearing did not violate his due process rights and was not an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Therefore, the Court found that Mr. Miller was not entitled to habeas corpus relief.

United States v. Doss: Mr. Doss appealed his conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering. The Court found that a conviction for witness tampering is proper when the defendant was found to have encouraged a witness to withhold testimony when that witness possessed a legal right or privilege not to testify. However, the Court vacated the sentence and remanded as to several counts, directing the district court to determine whether the victim in Mr. Doss’ prior sex offense conviction was a minor by a reasonable doubt standard instead of the modified categorical approach used by the district court.

United States v. Lindsey: The Court held that the proper remedy for a good faith, erroneous denial of a defendant’s peremptory challenge is not automatic reversal under United States v. Annigoni, but a review for plan error under Rivera v. Illinois, which the Court found effectively overruled Annigoni. The Court found in this case, where defense counsel did not object when the Court stated that it had no further peremptory challenges and did not attempt to exercise its final challenge, there was no plain error and Mr. Lindsey’s conviction should stand.

In a concurrence, Judge Pregerson wrote separately agreeing with the plain error standard of review but arguing that the case could be resolved without deciding whether Rivera overruled Annigoni, as Annigoni is inapposite to this case, where there was a good faith error, as opposed to Annigoni, where the defendant was actively prevented by the district court from exercising a peremptory challenge.

Perez v. Cate: The Court held that the fee caps under The Prison Litigation Reform Act (PLRA) of 150% of the “rate established” by the Criminal Justice Act “for payment of court-appointed counsel” also applies to separately billed paralegal fees under the holding in Missouri v. Jenkins.

Lopez v. Ryan: The court affirmed the district court’s denial of Mr. Lopez’ petition for a writ of habeas corpus challenging his capital sentence for first degree murder. The Court found that Mr. Lopez was given an individualized sentencing determination at which the sentencing court considered all mitigating evidence and found no leniency was warranted. The Court further found that Mr. Lopez received effective assistance of counsel, as there was no showing of error in counsel’s failure to provide the expert with eyewitness testimony caused him prejudice. Finally, the Court found no merit in Mr. Lopez’ Brady claim, reasoning that a note that was not disclosed by the government was not “material” for Brady purposes, as it included legal opinions and facts cumulative of information available in previously release police reports. Further, there was no evidence that the failure to disclose the note caused prejudice to Mr. Lopez.

United States Supreme Court:

Harrington v. Richter: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Harrington’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d)—which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court. The Court found that this section applied to Mr. Richter’s petition despite the fact that the State Supreme Court issued only a summary denial, as Mr. Richter did not show that there was no reasonable basis for the state court to deny relief, nor did he demonstrate that there was a more likely explanation for the state court’s decision. The Court reasoned that the Ninth Circuit in holding otherwise “failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition,” and that the Ninth Circuit’s opinion showed an “improper understanding of §2254(d)’s unreasonableness standard and operation in the context of a Strickland claim.” The Court ruled that a state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of that decision. The court found that the Ninth Circuit erred under this standard in finding Mr. Richter’s counsel’s performance deficient, as the complained of actions could have been undertaken as part of a reasonable trial strategy. The Court further found that the Ninth Circuit erred in finding prejudice to Mr. Richter, as there was no substantial likelihood of acquittal had counsel acted differently.

In her concurrence, Justice Ginsburg agreed with the judgment on the basis the any lapse by counsel was not sufficiently serious as to deprive Mr. Richter of a fair trial. Justice Kagan took no part in the consideration or decision of the case.

Premo v. Moore: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Moore’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d) as the claim had been previously adjudicated on the merits in state court. The Court found that the State Court decision was not an unreasonable application of either part of the Strickland rule. The Court found that Mr. Moore’s counsel acted reasonably and that, even had he acted differently, there was no basis to believe that the outcome of Mr. Moore’s trial would have been different.

In a concurrence, Justice Ginsburg agreed with the Court that Mr. Moore had not shown he would have acted differently had he been better informed by counsel. Justice Kagan took no part in the consideration or decision of the case.

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