Criminal Case Law Update, Week Ending 3-4-11

Washington State Law

Washington State Supreme Court:

State v. Russell: The court held that a trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction. In this case, the Court of Appeals had reversed Mr. Russell’s conviction for first degree rape of a child because evidence of Mr. Russell’s abuse of the alleged victim in other states both before and after the alleged incidents in this case was admitted without a limiting instruction. The supreme court reversed and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/843074.opn.pdf

Division One Court of Appeals:

State v. Rowland: The court held that under the facts of this case, Blakely v. Washington did not apply to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. The Court reasoned that the remand directed the trial court only to consider the second prong of the sentencing process, wherein a judge exercises his or her discretion to determine, given the aggravating facts, whether an exceptional sentence is warranted and, if so, its length. The remand did not touch upon the factual determination made by a jury, which must find in the initial sentencing hearing that facts exist beyond a reasonable doubt to support an exceptional sentence. However, the Court found that Mr. Rowland was entitled to dispute a new offender score error at his resentencing hearing, and remanded the case to correct the offender score and standard sentencing range. http://www.courts.wa.gov/opinions/pdf/64262-6.pub.doc.pdf

Division Two Court of Appeals:

Personal Restraint of Stockwell: The Court found no unlawful restraint in this partially published opinion, and denied Mr. Stockwell’s petition. In so doing, the Court found meritless Mr. Stockwell’s arguments that (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone-Club factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. http://www.courts.wa.gov/opinions/pdf/37238-0.11.cor.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Sepulveda-Barraza: The Court affirmed Mr. Sepulveda-Barraza’s conviction for importation of cocaine and possession with the intent to distribute. The court found that the district court did not err in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. The Court reasoned that admission of such testimony was not an abuse of the district court’s discretion, because it was relevant, probative, and not unduly prejudicial in light of Mr. Sepulveda-Barraza’s defense theory that he did not know that he was
transporting drugs. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-10362.pdf

Reeb v. Thomas: The Court held that the district court does not have subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations. The Court reasoned that a habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will” and that are not “subject to the rigors of the Administrative Procedure Act, including public notice and comment.” The Court stressed that judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-35815.pdf

Alaimalo v. United States: The court found that it had jurisdiction to consider this opinion, brought without a certificate of appealability, and that the prior panel’s denial on the merits of Mr. Alaimalo’s earlier petitions should not be given preclusive effect. The Court reasoned that Mr. Alaimalo was actually innocent and failing to consider his habeas petition would result in manifest injustice. The Court recognized the probability that vacating Mr. Alaimalo’s convictions for importation of methamphetamine would not reduce the length of his confinement, however, the Court noted that the action would remove “the possibility that he will be subject to their adverse collateral consequences.

In his dissent, Judge Korman argued that this appeal, no matter how decided, would have no practical consequence, as Mr. Alaimalo is sentenced to life imprisonment on other convictions and would not be released even if the convictions at issue here were to be reversed. The dissent thus objected to the meaninglessness of the writ ordered. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/28/08-56349.pdf

United States v. Salazar-Mojica: The Court upheld Mr. Salazar-Mojica’s conviction for being a deported alien found in the United States. The Court found that despite the fact that Mr. Salazar-Mojica’s prior conviction for a felony crime of violence had been reduced to a misdemeanor after his deportation and the arrest for the current offense, the felony conviction was nevertheless the appropriate standard for calculation for the sentencing range in this case, as the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant’s deportation. Because Mr. Salazar-Mojica’s conviction for a crime of violence was a felony conviction at the time of his deportation, the court reasoned, the application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/24/09-50632.pdf

United States v. Lynn: The Court found that Mr. Lynn’s convictions for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct and for possessing visual depictions of a minor engaging in sexually explicit conduct violated double jeopardy. The Court reasoned that the convictions were based on the same underlying conduct and remanded with instructions to vacate one of the convictions, with the caveat that it could be reinstated without prejudice if his other conviction should be overturned on direct or collateral review. The Court further denied Mr. Lynn’s motion for reversal of both convictions based on insufficiency of the evidence, and found that the sentence imposed was appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-10242.pdf

United States v. Watson: The Court upheld the district court’s decision revoking Mr. Watson’s supervised release and sentencing him to three years in prison. The Court found that Mr. Watson’s eleven arrests by state authorities in Minnesota between 1996 and 2007, while he was a fugitive from federal justice based on a failure to notify his probation officer of his change in residence, were insufficient to notify federal authorities of his whereabouts. Therefore, the Court held, contrary to Mr. Watson’s arguments, his term of supervision was tolled under federal authorities could resume supervision, that is, upon his arrest by federal authorities in 2009. The district court thus had jurisdiction to revoke Mr. Watson’s period of supervised release, and to impose a three-year prison sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-50666.pdf

United States v. Hernandez-Guerrero: The Court upheld Mr. Hernandez-Guerrero’s 27-month sentence imposed upon his plea of guilty to being an alien found in the United States following deportation. The Court found that the district court did not err in using the date he reentered the country instead of the date he was actually found in the country in the computation of Mr. Hernandez-Guerrero’s criminal history score. The district court had included in that score a 1992 controlled substance conviction as having been imposed within fifteen years of the commencement of the current offense, a date based upon Mr. Hernandez-Guerrero’s re-entry date. The crime would not have been part of Mr. Hernandez-Guerrero’s offender score had the district court used the date he was actually found in the country for computation of this score. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/10-50096.pdf


United States Supreme Court:

Michigan v. Bryant: In an opinion authored by Justice Sotomayor, and joined by Justices Roberts, Breyer, Kennedy, and Alito, the Court held that a deceased victim’s identification and description of his shooter and the location of the shooting were not testimonial statements because their primary purpose was “to enable police assistance to meet an ongoing emergency,” as sanctioned under Davis. Therefore, their admission at Mr. Bryant’s trial in this case did not violate the Confrontation Clause. The Court stressed that the Davis decision had found that statements made “in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” are not testimonial. Rather, such statements are only testimonial when made in the absence of such emergency to “establish or prove past events potentially relevant to later criminal prosecution.” However, though this case, the Court added a new dimension to the “primary purpose inquiry,” ruling that the objective intent of both the declarant and the interrogator was to be considered in determining whether a statement was testimonial. The Court stressed that the existence of an ongoing emergency at the time of the encounter is among the most important circumstances informing the purpose of the interrogation. The Court reasoned that his inquiry is highly context-dependent and relies not just upon whether the threat to the first victim has been neutralized, because the threat to police and public may continue, as the Court found it did here when an armed assailant remained at large. The Court further reasoned that a victim’s medical condition is similarly important to the primary purpose inquiry, as it sheds light on the victim’s ability to have a purpose and provides a context for first responders to judge the existence and magnitude of any continuing threat. However, the Court specifically found that this “does not mean that an emergency lasts the entire time that a perpetrator is on the loose…” and stressed that whether an ongoing emergency exists is but one factor informing the ultimate inquiry regarding the primary purpose of an interrogation. Among others are the formality of the encounter, the statements and actions of both the declarant and interrogators, including the content of both the questions and answers.

In an opinion concurring in the judgment, Justice Thomas agreed that the admission of the victim’s out-of-court statements did not violate the Confrontation Clause, but reached this conclusion because he believed the victim’s questioning by police “lacked sufficient formality and solemnity for his statements to be considered ‘testimonial.’” Justice Thomas disagreed with the use of the “primary purpose test,” calling it an “exercise in fiction that is disconnected from history and yields no predictable results.” Instead, Justice Thomas argued that the Court should consider the extent resembles those “historical practices that the Confrontation Clause addressed.”

In a dissent, Justice Scalia called the Court’s conclusion “patently incorrect on the facts,” and lambasted the precedent set by this case as one that “distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Justice Scalia argued for a continued adherence to the “Confrontation Clause that the People adopted, as described in Crawford v. Washington.” Under that jurisprudence, the dissent maintained that the intent of the declarant was the primary consideration, particularly whether the declarant intended the statement to be a solemn declaration rather than an unconsidered or offhand remark and whether he made the statement with the understanding that it may be used to “invoke the coercive machinery of the State against the accused.” The dissent argued that the “hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.” The dissent posited that the declarant-focused inquiry would work in every fact pattern, and to impose a different standard is senseless, particularly in cases of spontaneous statements made without interrogation that are nonetheless testimonial in nature. The dissent noted that, “[s]orting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation.” In this case, the dissent posited, the victim had little intent in making his statement save to ensure the arrest and prosecution of his assailant. The victim doubtless had little fear of being shot again once he was surrounded by five armed police officers, the dissent pointed out, and, even considering the test set forth by the Court, the dissent observed that the police likewise likely had little fear that the alleged assailant would come after them or other members of the public, as they were aware that this was a drug-related shooting, not a crime spree, and that in the majority of murder cases, there is but one victim. Further, the dissent noted, the questions regarding identity and address were not necessary to provide medical treatment to the victim, only to ensure capture of the killer. The dissent further criticized as a throwback to the pre-Crawford law the Court’s announcement that future cases should look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial, noting that “[w]e tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” The dissent further disagreed with the context-driven inquiry set forth by the Court in this decision, noting that it would pave the way for results-based decisions, and opened up arenas of debate over factors considered in the balancing tests set forth by the Court that need not be considered.

In her dissent, Justice Ginsburg agreed with Justice Scalia’s conclusions that the victim’s statements in this case were testimonial and that “[t]he declarant’s intent is what counts.” Justice Ginsburg further agreed that even if the interrogator’s intent factored in, in this case the statements would nevertheless be testimonial. However, Justice Ginsburg wrote separately to add the observation that a dying declaration is a well-established exception to the confrontation requirement, and that such issue should have been properly tendered in this case, to allow the court to consider whether the exception for dying declarations survives the Court’s recent Confrontation Clause decisions.

Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-150.pdf

Pepper v. United States: In an opinion authored by Justice Sotomayor and joined in full by Justices Roberts, Scalia, Kennedy, and Ginsburg and joined in part by Justices Breyer and Alito, the Court ruled that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the Guidelines range. The Court reasoned that this was such a case, as Mr. Pepper had, since sentencing, overcome an addiction, attended college, found a steady job, reconciled with his father, gotten married, and was supporting his family. The Court held that this information was validly before the sentencing court, citing Williams v. New York, which held that a sentencing court should have wide discretion as to the evidence considered, thus allowing it to tailor a punishment to fit the offender and not merely the crime. The Court noted that this principle had been codified under 18 U.S.C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). Though the Court recognized that the sentencing guidelines were a good starting point, it found other factors should be considered in both the initial sentencing and any subsequent resentencing after appeal. The Court specifically found that post-sentencing rehabilitation evidence could support a downward variance from the Guidelines range, and that Mr. Pepper’s rehabilitation was clearly relevant to the selection of an appropriate sentence in this case. The Court further found that §3742(g)(2)—which prohibits a district court at resentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—is invalid after Booker, and that this section does not reflect a Congressional intent to bar consideration of post-sentencing rehabilitation evidence.

In a partial concurrence, Justice Breyer agreed that 18 U. S. C. §3742(g)(2) is invalid under Booker. He also agreed that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of post-sentencing rehabilitation. However, Justice Breyer emphasized that “this conclusion does not leave a sentencing court free to disregard the Guidelines at will,” but “permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so.”

In a partial concurrence and partial dissent, Justice Alito agreed that the decision could not be affirmed on the basis of 18 U. S. C. §3742(g), as this provision has been rendered invalid under Booker. Justice Alito also concurred in the judgment “to the extent that it holds that the decision below regarding evidence of post-sentencing rehabilitation must be reversed.” However, Justice Alito stressed that judges should still be required in almost all cases to give significant weight to the police decisions embodied in the Guidelines. However, the justice recognized that the policy statement in the instant matter is distinguishable from almost all of the other rules that the Commission has adopted, and thus concurred in the end result for this case.

In a dissent, Justice Thomas argued that the Court of Appeals decision should have been affirmed, and Mr. Pepper’s 65 month sentence upheld. The dissent argued that the Federal Sentencing Guidelines, as written, “do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s post-sentencing rehabilitation.” In so arguing, the dissent appeared to once again take issue with the holdings in Booker and Kimbrough which rendered the Guidelines advisory rather than mandatory, and argued that there is “no principled way to apply the Booker remedy,” and therefore the Guidelines should be applied as written unless so doing would be a Sixth Amendment violation.

Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-6822.pdf

Walker v. Martin: In a unanimous decision authored by Justice Ginsberg, the Court held that the “reasonableness standard” used by California courts in lieu of a determinate time limit to judge the timeliness of a habeas petition qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Federal relief is therefore unavailable for an untimely petition absent a showing of cause and prejudice. The Court found that the California rule was firmly established and regularly followed and therefore adequate under settled case law even though the exercise of discretion permits consideration of a federal claim in some cases but not others. In so holding, the Court reasoned that the requirement was framed through a trilogy of cases, and that the courts have supplied clarity through application of the rule. The Court dismissed Mr. Martin’s arguments that the terms “reasonable time” period and “substantial delay” make California’s rule too vague to be regarded as “firmly established.” The Court further found that the rule was regularly followed, lending strength to its application. The Court also decided that the California time bar was not infirm merely because it allows for differing outcomes or a bypass of the rule entirely depending on the case. The Court concluded that there was no showing that the California rule was discriminatory, and affirmed the denial of habeas relief. http://www.supremecourt.gov/opinions/10pdf/09-996.pdf