Monday, September 26, 2011

Case Law Update, Week Ending 9-23-11

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

Personal Restraint of Talley: The Court held that former RCW 9.92.151 (2004) requires a county jail to provide opportunities for an inmate who is yet to be sentenced to earn credit toward early release, also known as "good-time" credit. As the Skamania County Jail and the Department of Corrections did not provide such opportunities to Mr. Talley prior to his criminal conviction, the Court held that the entities were in violation of former RCW 9.92.151, and that Mr. Talley was entitled to good-time credit at the statutory maximum rate of 15 percent. Mr. Talley also argued that the policy violated the equal protection clause of the United States Constitution; however, the Court did not reach that argument.

Personal Restraint of Rhome: The Court held that the state and federal constitutions do not require independent findings of fact that a defendant is competent to waive counsel and represent himself at trial. The Court rejected Mr. Rhome’s arguments that the sixth and fourteenth amendments to the federal constitution and the due process clause in the state constitution authorized a separate inquiry into his mental competency, and failure to do so constituted a violation of his rights under those amendments. The Court reasoned that relevant case law imposed no such standards, but merely did not find fault with courts that undertook such an inquiry, and that mental health status is but one factor that may be considered in determining the validity of a waiver. The Court further found that the trial court’s colloquy in this matter, during which the trial court advised Mr. Rhome of the risks of representing himself and ensured he understood the significance of the undertaking were sufficient to secure a valid waiver of counsel, notwithstanding that the court did not address Mr. Rhome’s known mental health issues during the colloquy.

State v. Caldwell: Mr. Caldwell and co-defendant John Gordon were each charged with second degree murder with two aggravating factors, deliberate cruelty and particular vulnerability of the victim. The jury was instructed to determine whether the aggravators were present, but the instructions did not define "deliberate cruelty" or "particular vulnerability." The defendants did not object to the instructions on that basis, and were found guilty of the crime and the aggravators applied. On appeal, the court found that the failure to provide detailed instructions defining the meaning of "deliberate cruelty" or "particular vulnerability" was not a manifest error of constitutional magnitude that may be addressed for the first time on appeal. The Court reversed the Court of Appeals’ alternate ruling, finding that the lower court mistakenly relied upon Apprendi and Ring to hold that the error could be characterized as failing to properly instruct on an element of the aggravated crime. The court reasoned that Apprendi and Ring do not dictate the level of detail required in an instruction setting forth aggravating factors, the statue at issue in this case does not define or elaborate on the meaning of “deliberate cruelty" or "particular vulnerability," and the jury instructions follow the statute. The omission of additional terms is not an error of constitutional magnitude.

Division One Court of Appeals

State v. Strizheus: The court affirmed the trial court’s exclusion of other suspect evidence that Mr. Strizheus claimed established that his son Vladimir committed the crime of attempting to murder Mr. Strizheus’ wife, and Vladimir’s mother, Valentina. The Court found that Mr. Strizheus did not meet his burden of showing facts or circumstances clearly pointing to Vladimir as the person who committed the crime. The Court reasoned that there was no evidence establishing a nexus between Vladimir and the crime, no physical evidence connecting Vladimir to the crime, no eyewitness testimony placing Vladimir at the scene, and no identification of Vladimir by Valentina as her attacker. In fact, the only evidence Mr. Strizheus relied upon was a statement made by his son when his son was admittedly intoxicated, and which his son later recanted.

State v. Peters: The Court reversed and remanded for a new trial charges against Mr. Peters, who had been accused of felony murder in the second degree based on the predicate offense of assault and manslaughter in the first degree with a firearm, as a result of the shooting death of his six year old daughter. The jury had also been instructed on the lesser-included offense of manslaughter in the second degree The jury found Mr. Peters not guilty of felony murder but guilty of manslaughter in the first degree. However, the trial court erroneously instructed the jury that in order to convict Mr. Peters of manslaughter in the first degree, the State need only prove that he knew of and disregarded "a substantial risk that a wrongful act may occur," rather than "a substantial risk that death may occur." The Court found that the jury instruction was not harmless beyond a reasonable doubt, and the uncontroverted evidence did not establish that Mr. Peters knew of and disregarded a substantial risk that death may occur.

State v. Read: The Court found that there was sufficient evidence to uphold Mr. Read’s conviction for malicious harassment when Mr. Read was found to have used “virulent racial epithets” coupled with aggressive and intimidating conduct when confronting an Ethiopian parking lot attendant regarding a ticket he had been issued for parking over two spaces in a restaurant parking lot. After calling the victim a nigger, blaming her for the issuance of the ticket, making advances toward her on foot and then in his vehicle, the victim hid, terrified in the bushes and called 911 for police assistance. The Court found that this record established that Mr. Read intentionally and maliciously harassed the victim because her race, ethnicity, or national origin.

Division Two Court of Appeals

State v. Corona: The Court reversed and remanded Mr. Corona’s case for a new sentencing hearing, as the court had imposed a $3,000.00 drug clean-up fine after convicting Mr. Corona of delivery involving less than two kilograms of methamphetamines. The Court found, in agreement with the State’s concession on the matter, that the trial court abused its discretion when it imposed the fine, as it erroneously believed that the fine was mandatory. However, under RCW 69.50.401, such fine is discretionary in offenses such as the one of which Mr. Corona was convicted.

Division Three Court of Appeals

State v. Guerrero: In this partially published opinion, Mr. Guerrero appealed the denial of sentencing under the drug offender sentencing alternative (DOSA). The Court found no error in the trial court’s refusal to impose the DOSA sentence. The Court further found that no chemical dependency screening was required, contrary to Mr. Guerrero’s argument, under the DOSA statutes, and the trial court did not commit error in failing to order such a screening.

State v. Santos: The Court reversed Mr. Santos’ felony DUI conviction and remanded for entry of a conviction and sentence for gross misdemeanor DUI. The Court found that the State did not prove that Mr. Santos and the person named in documents purporting to show four prior DUI convictions were one and the same. The Court reasoned that the fact of the prior offenses is an essential element of felony DUI that the State must prove beyond a reasonable doubt, as this is the distinguishing factor between felony and misdemeanor DUI. Though the State introduced into evidence certified copies of four DUI judgments to show that Mr. Santos had prior offenses within ten years, generally accepted as the best evidence of a prior conviction, the Court found, based on prior precedent in bail jumping cases that those certified copies must also show beyond a reasonable doubt that “the person named therein is the same person on trial.” The showing, the Court found, cannot be based on the certified copy of the judgment, but must be based on independent evidence that "the person named therein is the defendant in the preset action," such as booking photographs or fingerprints, eyewitness identification, or distinctive personal information.In the present case, the Court determined that no evidence linked Mr. Santos to the prior DUI judgments: none of the information could be compared to Mr. Santos by simple observation and none could be compared to any other independent evidence that could be linked to Mr. Santos. The Court observed that the State had produced no evidence of Mr. Santos’ address, birth date, or other criminal history. No photographs of the person named in the judgments were produced to compare to Mr. Santos at the trial. The Court held this evidence was insufficient to establish the felony element of felony DUI.

State v. Chacon Arreola: The Court reversed Mr. Chacon Arreola’s DUI, finding that the stop for a modified muffler was pretextual in violation of the Washington Constitution. A patrol officer had followed Mr. Chacon Arreola’s vehicle for over half a mile because it fit the description of a car reportedly driven by a suspected drunk driver. No details regarding the informant or the information provided are included in the record. Though the officer observed no signs of impaired driving, he claimed that the car was equipped with a modified muffler in violation of state vehicle equipment requirements. The officer pulled the vehicle over based on the muffler violation with the primary motive of investigating Mr. Chacon Arreola for a possible DUI. Though the officer testified at a motion hearing that the muffler may have caused him to stop and cite Mr. Chacon Arreola even absent suspicion of drunk driving, the criminal investigation was the primary motive for the stop. The officer further testified that he did not always stop and cite a driver upon noticing a noncompliant muffler. The Court found that the trial court’s finding that the officer was following Mr. Chacon Arreola to investigate a possible DUI and stopped him principally for that reason compel the conclusion that the stop was pretextual in violation of the Washington Constitution. The court observed that the infraction would have constituted sufficient justification for stopping Mr. Chacon Arreola under the Fourth Amendment to the United States Constitution, as the United States Supreme Court has held that an officer wishing to investigate a crime may stop a driver for any traffic infraction observed. However, the Washington Supreme Court, in Ladson, had expressed concern that due to the extensiveness of traffic regulation, “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter." The Court ruled that the reasoning of Ladson compels the result that “a traffic stop is without authority of law where it cannot be constitutionally justified for its primary reason (speculative criminal investigation) but only for some other reason (enforcing the traffic code) which is at once lawfully sufficient but only a secondary reason. The Court found that the traffic stop that yielded the evidence on which Mr. Chacon Arreola was charged in this case was without authority of law because the reason for the stop – to investigate for drunk driving – was not exempt from the warrant requirement.

In a dissent, Judge Brown argued that the Court should defer to the fact-finding discretion of the trial judge, who determined from disputed facts "an actual reason for the stop" was the muffler violation. The dissent argued that a stop can serve multiple, legal, complimentary purposes so long as an actual stop reason passes legal muster, and that officers should not be expected to be “blind to other potential concurring violations detected when investigating an actual stop reason.”

Federal Law

Ninth Circuit Court of Appeals

United States v. Ibarra-Pino: The Court upheld Mr. Ibarra-Pino’s conviction for importation and possession of marijuana. The Court found that the district court did not err in disallowing a duress instruction. Contrary to Mr. Ibarra-Pino’s claims, the Court found that the district court did allow Mr. Ibarra-Pino to present evidence of a duress defense at trial, but agreed that Mr. Ibarra-Pino did not establish the elements of a duress defense. Specifically, the Court found that Mr. Ibarra-Pino had an opportunity to escape the threatened harm when confronted at the border by law enforcement, and before the search of his vehicle uncovered the drugs. Thus, the Court found, there was no error in the district court’s refusal to allow a duress defense or a jury instruction on duress.

In a concurrence, Judge Kozinski agreed that the district court did not preclude a duress defense prior to trial, but did allow Mr. Ibarra-Pino to present evidence of duress during the trial. The concurrence argued that there was no occasion in this matter to discuss whether the district court could properly have precluded a duress defense and tersely concluded that this is a difficult issue “that we should leave to a case where it matters.”

United States v. Baker: Mr. Baker appealed his conviction for misdemeanor possession of methamphetamines, arguing that due to flagrant governmental misconduct the case should have been dismissed. The Court affirmed the conviction despite evidence that officers manufactured claims that Mr. Baker threw bags of methamphetamines out of his car during a high speed chase, leading prosecutors to charge him with a felony rather than a misdemeanor based upon the amount of methamphetamines found in his car. Mr. Baker then appealed conditions of probation, including one requiring him to submit to suspicionless searches and one requiring him to submit to DNA collection. The Court affirmed the suspicionless search condition but, because the district court exceeded its statutory authority by imposing the DNA condition, reversed with instructions to strike that condition and to order expungement of DNA records collected pursuant to it.

In a concurrence, Judge Graber agreed completely with the panel’s decision, however, wrote separately to highlight the Court’s continued reliance on the proposition that there is no difference between parolees and probationers in the context of suspicionless searches. The concurrence argued that this position directly contravenes Supreme Court precedent and forecloses the Ninth Circuit’s ability to resolve the question on the merits. The concurrence urged the court to convene en banc to correct this issue.

United States v. Dugan: The court found constitutional 18 U.S.C. § 922(g)(3), which makes it illegal for “any person . . . who is an unlawful user of or addicted to any controlled substance . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Mr. Dugan, a convicted marijuana dealer who also had a business dealing in firearms, argued that the statute ran afoul of the Second Amendment because it deprives him of his constitutional right “to possess and carry weapons in case of confrontation.” The Court noted that in District of Columbia v. Heller, 554 U.S. 570, 592 (2008), the Supreme Court instructed that the Second Amendment right “is not unlimited.
Specifically, the Court ruled that nothing in its opinion “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…or laws imposing conditions and qualifications on the commercial sale of arms.” The Court ruled that the same dangers existed in allowing drug users to possess guns as with the mentally ill, and upheld the prohibition.

United States v. Rivera: The Court upheld Mr. Rivera’s sentence of 37 months for unlawfully attempting to re-enter the United States after having previously been removed. The Court found reasonable the district court’s increase in the offense level by eight levels because Mr. Rivera “previously was deported, or unlawfully remained in the United States, after . . . a conviction for an aggravated felony.” The Court found that the district court properly determined that any one of Mr. Rivera’s three prior felony petty theft convictions would be sufficient to trigger the eight-level increase, because he had been sentenced to concurrent 16-month terms of imprisonment in state prison for his first and second offense and two years in state prison for his third offense. The Court rejected Mr. Rivera’s arguments that the crimes could not be considered aggravated felonies due to the sentencing structure of the crimes and the crime covered by the California Penal Code, finding that the documents submitted in this case establish that at least one of the convictions was based on a guilty plea to conduct that constitutes a generic theft offense, for which the term of imprisonment was at least a year, at that only one prior aggravated felony was necessary for the increase in sentencing levels.

United States v. Fitch: The Court upheld the exceptional sentence imposed on Mr. Fitch’s convictions for nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The Court found that the district court properly increased the sentencing after finding by clear and convincing evidence that Mr. Fitch had murdered his wife and that her death was the means he used to commit his crimes, despite the fact that Mr. Fitch was not charged with his wife’s murder and there was in fact no evidence she was deceased, only that she had disappeared. The Court held that a judge has broad powers to increase a sentence based even on uncharged conduct because a sentence may be based not just on the crimes for which the defendant was convicted but the manner in which the defendant committed the crimes. Here, the district court apparently believed that Mr. Fitch completed the crimes for which he was convicted by first killing his wife, and sentenced him accordingly. The Court found that the district court had authority to sentence Mr. Fitch as it did, and further that the sentence was a reasonable upward departure from the guidelines.

In a dissent, Judge Goodwin argued that, while the evidence of aggravated criminal exploitation of the victim in this case would support an upward departure from the sentencing guidelines, the dissent could not agree there was clear and convincing evidence from which the district court could conclude that Mr. Fitch committed premeditated murder in connection with the fraud charged. The dissent pointed out there was no evidence that Mr. Fitch’s wife was dead, much less evidence of how she died or the degree of Mr. Fitch’s involvement in her disappearance. The dissent further observed that the death of Mr. Fitch’s wife was not a necessary predicate to the fraud committed, and that the district court could not have evaluated the dangerousness of Mr. Fitch’s conduct or the extent to which his wife’s presumed death was intended or knowingly risked because the record is silent on these factors. The only facts in the record are that Mr. Fitch’s wife disappeared and Mr. Fitch immediately exploited her disappearance for his own