Case Law Updates; October 18 - 29, 2010

WASHINGTON SUPREME COURT

Merger/Juvenile Sentencing: First degree assault and first degree robbery do not merge in the juvenile context.

State v. S.S.Y., ___ Wn.2d ___ (Oct.28, 2010)
Facts: S.S.Y., a juvenile, was convicted of first degree assault and first degree robbery for attacking another juvenile and taking his MP3 player.
Held: The legislature intended to punish first degree assault and first degree robbery as separate crimes. They do not merge in the juvenile context.

71.09: In a Chapter 71.09 RCW trial, the court erred when it allowed the admission of evidence about the treatment available at the Special Commitment Center and about the possibility of future release to a less restrictive alternative.

71.09: In a Chapter 71.09 RCW trial, it is relevant evidence that a person would be subject to another 71.09 proceeding if that person were released and committed a recent overt act.

In re Post, ___ Wn.2d ___ (Oct.28, 2010)
Facts: The State sought to have Mr. Post civilly committed under Chapter 71.09 RCW. At trial the court allowed the State to present evidence about the treatment that would be available to Mr. Post if he were civilly committed and about the possibility of future release to a less restrictive alternative.

Held: The court erred when it allowed the admission of evidence about the treatment available at the Special Commitment Center and about the possibility of future release to a less restrictive alternative. This error was not harmless.

Evidence that, if released, Mr. Post could be subject to another 71.09 proceeding if he were to commit a recent overt act would be relevant on re-trial.

Self-Defense: Self-defense is available when a weapon accidentally discharges, and it was an appropriate defense in this case.

State v. Werner, ___ Wn.2d ___ (Oct.28, 2010)
Facts: Mr. Werner had a handgun with him when he was approached by several of his neighbor’s dogs. He asked his neighbor’s friend to call off the dogs. There was evidence at trial that the neighbor’s friend refused. The gun Mr. Werner held went off, discharging into the ground. Mr. Werner claimed this was an accident. At trial for first degree assault, Mr. Werner requested jury instructions on self defense, but the court refused to give them.

Held: Mr. Werner was entitled to self defense jury instructions. The defense is available when a weapon accidentally discharges. There was evidence here that Mr. Werner was justified in acting in self defense against his neighbor’s friend, who may have refused to call off the dogs.

WASHINGTON COURT OF APPEALS


Privacy Act: Defense interviews with police officers are not private conversations as defined by Chapter 9.73 RCW.

CrR 4.6: A deposition is not appropriate simply because a witness refuses to allow defense counsel to tape record an interview.

State v. Mankin,___ Wn.App.___ (Div. II) (Oct.19, 2010)
Facts: Mr. Mankin was charged with manufacturing methamphetamine, and he sought to interview the police officers involved in the case. The officers were willing to talk to defense counsel, but, because they refused to be tape recorded, defense counsel terminated the interviews. Mr. Mankin then moved to depose the officers, and the trial court granted the motion.

Held: Chapter 9.73 RCW prohibits recording private conversations without the consent of all parties involved. Defense interviews with police officers are not private conversations as defined by Chapter 9.73 RCW.

CrR 4.6(a) allows a deposition only in certain circumstances. One of those circumstances is when a witness refuses to discuss the case. Here, the court erred in ordering depositions. Refusal to be tape recorded is not a refusal to discuss the case.

Sufficiency /Gang Evidence: When the evidence showed the defendant was member of a subgroup of a gang, sufficient evidence showed he was acting as a member of a gang.

Double Jeopardy: Gang intimidation and second degree assault do not constitute the same offense for purposes of double jeopardy.

Bill of Particulars: A bill of particulars does not prejudice a defendant if the defendant knows what the State seeks to prove.

State v. Gatlin,___ Wn.App.___ (Div. III) (Oct.21, 2010)

Facts: Mr. Gatlin and a friend, Mr. Lambert, decided to form a group called the 4 Block Crips in Dayton, Washington as a subset of the Walla Walla gang called the Duce 47 Crips. There were no other members of the 4 Block Crips. Mr. Gatlin and Mr. Lambert invited a third person, M.W., to join the 4 Block Crips. When M.W. declined, Mr. Gatlin and Mr. Lambert said they would beat him up. Later, Mr. Lambert hit and choked M.W. while Mr. Gatlin encouraged him, and Mr. Gatlin separately punched M.W. Still later, Mr. Lambert found M.W. hiding and punched him again. Finally, when M.W. was being driven home, Mr. Gatlin called M.W.’s cell phone and made a threat. The State charged the defendant with several counts of assault and one count of gang intimidation.

Held: On appeal, Mr. Gatlin argued there was not sufficient evidence to show a gang existed. The Court of Appeals disagreed. A gang consists of three or more people. Here, the 4 Block Crips were a subset of the Duce 47 Crips, which had more than 3 members, so there was sufficient evidence Mr. Gatlin acted as part of a gang.

Gang intimidation and second degree assault do not constitute the same offense for purposes of double jeopardy.

The bill of particulars, which alleged Mr. Gatlin was a member of the 4 Block Crips but not the Duce 47 Crips did not deny Mr. Gatlin due process because he was aware of what the State sought to prove.

Search /Seizure: Where the record is not adequate to show why police searched a defendant’s car, the Court of Appeals will not review a claim that police wrongfully searched the car incident to arrest.

State v. Roberts,___ Wn.App.___ (Div. I) (Oct.25, 2010)

Facts: Police arrested Mr. Roberts for DWLS and towed his car. Police searched his car, but it was unclear whether the search was primarily incident to arrest or an inventory search prior to towing the car. Because Mr. Roberts went to trial prior to the U.S. Supreme Court opinion in Gant, he did not challenge the search of his car at the trial level.

Held: The record was inadequate to evaluate Mr. Roberts’ claim that police searched his car incident to arrest.

Search /Seizure: An officer does not seize an individual when the officer makes a permissive request that falls short of immobilizing the individual.

Show Up ID: A show up ID is not impermissibly suggestive because the person identified is in handcuffs.

Crawford: There is no right to confrontation under Crawford at a pre-trial hearing.

State v. Fortun-Cebada,___ Wn.App.___ (Div. I) (Oct.25, 2010)

Facts: Police officers saw what appeared to be a drug deal with Mr. Fortun-Cebada selling drugs to Mr. Walker, but the officers were not able to see what was exchanged. Shortly thereafter, police found Mr. Walker, asked if they could talk to him and asked him to take his hands out of his sweatshirt pocket. Mr. Walker complied and eventually told police he could identify the man who sold him cocaine. Police then held a show up identification, and Mr. Walker identified Mr. Fortun-Cebada.

Held: On appeal, Mr. Fortun-Cebada argued his trial counsel was ineffective for failing to move to suppress on the grounds that police unlawfully seized Mr. Walker and that Mr. Walker’s identification of Mr. Fortun-Cebada was unreliable. The Court of Appeals disagreed. He court held that Mr. Walker was not seized when police asked him to remove his hands from his sweatshirt pocket. Assuming Mr. Fortun-Cebada had standing to challenge the police contact with Mr. Walker, there was no seizure to challenge, only a permissible social contact because the officers’ request did not immobilize Mr. Walker.

The fact that Mr. Fortun-Cebada was in handcuffs when Mr. Walker identified him did not make the show up ID impermissibly suggestive.

There is no right to confrontation at a pre-trial 3.6 hearing under Crawford, so it was not ineffective assistance of counsel for the trial attorney not to object to the admission of Mr. Walker’s statements at Mr. Fortun-Cebada’s 3.6 hearing.


Corpus Delicti: A child’s allegation that the defendant molested her plus an adult’s testimony that the defendant admitted to the molestation provide corroborative independent evidence of corpus delicti.

State v. Grogan,___ Wn.App.___ (Div. III) (Oct.28, 2010)

Facts: Six-year-old M.L. told an adult that Mr. Grogan had touched her vagina. M.L. died before Mr. Grogan’s trial on first degree child molestation. Mr. Grogan later made incriminating statements to the police and told another adult, Mr. Bowyer, that he had inappropriately touched M.L.

Held: M.L.’s statement and Mr. Bowyer’s testimony provided corroborative independent evidence of the corpus delicti of first degree child molestation, thus allowing admission of Mr. Grogan’s statements to police.

Case Law Update, Week Ending 10-22-10

Washington State Law

Division Two Court of Appeals

State v. Mankin: The Court held that the privacy act does not apply to defense interviews of police officer witnesses. However, the Court ruled that the Court Rules do not provide any provision for the trial court to order depositions, including depositions of police officers. The Court also found that such witnesses, while they cannot refuse to be interviewed, can set the terms under which they will be interviewed, including refusing to be recorded. The Court noted that Mr. Mankin did not set forth a credible argument that the refusal of a witness to be tape recorded and thus provide the best evidence for impeachment purposes was a due process violation. http://www.courts.wa.gov/opinions/pdf/38977-1.10.doc.pdf

Division Three Court of Appeals

State v. Gatlin: The Court found that sufficient evidence existed to uphold Mr. Gatlin’s convictions for three counts of second degree assault and gang intimidation when, upset by an acquaintance’s refusal to join their gang, Mr. Gatlin and an associate chased down, beat, and choked a man, all the while yelling the name of their gang. After the beating was stopped, Mr. Gatlin is alleged to have threatened the man’s life. The Court likewise found unpersuasive Mr. Gatlin’s argument that the bill of particulars denied him due process, finding that it incorporated the police reports and accurately included all elements of the charged crimes. http://www.courts.wa.gov/opinions/pdf/286207.opn.doc.pdf



In Other News

King County Superior Court Judge Joan E. DuBuque was honored on Friday by the King County Coalition Against Domestic Violence in recognition of her efforts in education, promotion, and coordination of domestic violence preventions services locally and at the national level. http://www.courts.wa.gov/newsinfo/?fa=newsinfo.internetdetail&newsid=1694



Federal Law

Ninth Circuit Court of Appeals

United States v. Berry: The Court noted that Mr. Berry’s pro se motion to vacate his conviction was in actuality a motion for a new trial. The Court found that the motion was brought ten years after the conviction, well outside the three year time limit for such motions, but that the government had waived its objection to the untimeliness of the motion by failing to object to it, and so the district court properly decided the motion on its merits. The court then found that the motion was properly denied when new information regarding the forensic evidence that the government had used against him was merely impeaching and did not discredit the government’s witness, and would not likely result in an acquittal at a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/22/08-35002.pdf

Earp v. Cullen: The Court ruled that the district court erred in allowing a witness to invoke her Fifth Amendment right against self-incrimination, which deprived Mr. Earp of a full and fair opportunity to present his claim of prosecutorial misconduct, in which he had alleged witness intimidation by the prosecutor, during the initial remand of this habeas corpus petition. The Court remanded for a full and fair evidentiary hearing on only that claim, and instructed that the case be reassigned to a different district judge on remand. The Court also affirmed the district court’s denial of Mr. Earp’s ineffective assistance of counsel claim, finding that there was no showing that Mr. Earp’s trial counsel was deficient. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/19/08-99005.pdf

United States v. Lozano: The Court found that evidence of a prior consensual search of Mr. Lozano’s home in which drugs had been found, but after which Mr. Lozano was not charged with a crime, were properly admitted under ER 404(b), as the evidence of Mr. Lozano’s prior possession or sale of narcotics was relevant with respect to his intent and knowledge for the current distribution charge. The Court further found that the postal inspector had a reasonable suspicion that the package addressed to a “Bill Corner” at Mr. Lozano’s P.O. Box contained contraband after it was reported that Mr. Lozano had been asking questions about inspections of incoming packages for drugs. The Court held that the two day detention of the package from a remote location to allow a sniff by a drug-sniffing dog was a reasonable detention.

In his concurrence, Judge O’Scannlain wrote separately to argue that this case would be more easily resolved by the proposition that Mr. Lozano had no legitimate expectation of privacy in the mailed package, as he was not the addressee on the package. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/18/09-30151.pdf

United States v. Mitchell: The Court affirmed Mr. Mitchell’s 180-month imprisonment sentence as a career offender under the United States Sentencing Guidelines following his guilty plea to distributing 52.4 grams of crack cocaine. The Court joined other circuits in clarifying that, even in cases where a defendant is being sentenced as a career offender the sentencing court may depart downward in its sentence to account for the disparity between treatment of crack cocaine and powder under the Guidelines. (Mr. Mitchell appealed arguing that even the 180-month sentence was too long, and that he should have been sentenced to the 120-month minimum for this crime, due to the disparity.) http://www.ca9.uscourts.gov/datastore/opinions/2010/10/20/08-50429.pdf

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

Case law Updates - September 7-17, 2010

WASHINGTON SUPREME COURT

Public Records Act (PRA) – An agency must specify exemption and give a brief explanation how exemption applies when withholding documents.

Sanders v. State ___ Wn.2d ___ (No. 82849-1) (Sep. 16, 2010)

Facts: Justice Sanders sued the AG’s office for inadequately responding to his PRA request and for withholding nonexempt documents in violation of the PRA. This is long in depth case on the PRA with many holdings.

Held: (1) An Agency withholding or redacting a record must specify the exemption and give a brief explanation of how the exemption applies. The AGs office failed to do so here when all it provided was a list of documents and an indication of which exemption applies. (2) The remedy for violating the brief explanation requirement is consideration when awarding costs, attorneys’ fees and penalties. (3) An agency’s decision to produce documents after suit is filed does not admit that the initial withholding was wrongful. (4) The “common interest” doctrine applies to the PRA as it relates to waiver of confidence in communications. (5) The work product privilege protects documents even if they do not specify on their face a relevant controversy. (6) Documents can be exempt as work product even if created before an anticipated controversy. (7) There is a lengthy analysis about proper calculation of penalty for wrongful withholding.

Intimidation of a Public Servant/Sufficiency: Evidence must show an attempt to influence; a suspect’s mere threats or generalized anger is not sufficient on its own.

State v. Montano ___ Wn.2d ___ (No. 82855-5) (Sep. 16 2010)

Facts: Montano was detained for investigation of assault. He refused to cooperate and resisted the officer’s commands. Another officer responded and tazed him, and he was arrested. On the way to jail, he made several threatening and insulting comments to the officer. Montano was charged with assault, resisting arrest and intimidation of a public servant. The trial court granted his motion to dismiss the intimidation count pursuant to Knapstad.

Held: The state can not bring an intimidation charge anytime a defendant insults or threatens a public servant. More than threats alone or anger is necessary to prove intimidation of a public servant. There must be evidence that a suspect engaged in the behavior for the purpose of influencing the public official’s actions.

71.09: State may not compel a polygraph as part of a pre-trial evaluation pursuant to 71.09.040(4).

In re Detention of Hawkins ___ Wn.2d ___ (No. 82907-1)(Sep. 9, 2010)

Facts: The State filed a petition under 71.09 against Hawkins and sought to compel a pre-trial polygraph examination under 71.09.040(4). The statute requires the court, once probable cause is determined, to transfer the person to a facility “for an evaluation as to whether the person is a sexually violent predator.” The statute does not mention the use of a polygraph as part of the evaluation, although elsewhere in 71.09 the legislature has authorized the use of polygraphs.

Held: The legislature did not intend the statute to provide for a polygraph as part of the evaluation. If it had, it would have included the language. 71.09.040(4) prohibits the state from compelling a polygraph as part of a pre-trial evaluation.


Sentencing/Washout: Jail time for a misdemeanor probation violation does not interrupt the washout period on a felony.

State v. Ervin ___ Wn.2d ___ (No. 83244-7) (Sep. 9, 2010)

Facts: Ervin was convicted of felony violation of a no contact order. At sentencing, he argued that his prior class C felonies had washed. He had spent 17 days in jail on a probation violation stemming from a misdemeanor conviction during the five year period he was supposed to be in the community without committing any crime that results in conviction.

Held: Serving jail time for a misdemeanor probation violation does not interrupt the washout period on a felony.


Sentencing/Community Custody: Condition of sentence in drug case barring use of certain items unconstitutionally vague.

State v. Sanchez Valencia ___ Wn.2d ___ (No. 82731-1) (Sep. 9, 2010)

Facts: Sanchez-Valencia and his co-defendant were convicted of drug crimes. Their sentences included conditions barring them from using items that could be used to ingest or process controlled substances or to facilitate the sale or transfer of controlled substances, including scales, pagers, police scanners, and hand held electronic scheduling and data storage devices. Because they were still incarcerated when the initial appeal was heard the COA declined to hear their appeal as not ripe.

Held: The vagueness challenge was ripe and the conditions were unconstitutionally vague.



WASHINGTON COURT OF APPEALS

Lesser Included: Unlawful use of drug paraphernalia is not a lesser offense of possession of a controlled substance.

State v. Laplant ___ Wn.App.___ (Div II) (No. 36902-5)(Sep. 14, 2010)

Facts: LaPlant was charged with possession of methamphetamine after police lawfully searched him and found a baggie with meth residue. He admitted to using meth from the bag the night before. At trial, he sought an instruction on the lesser included offense of use of drug paraphernalia.

Held: A defendant can possess a controlled substance without using drug paraphernalia. Proof that a defendant used paraphernalia requires proof of an element not found in possession.


Confessions: Statements suppressed when deliberate two step interrogation technique undermines Miranda.

State v. Hickman___ Wn.App.___ (Div II) (No. 39039-6)(Sep. 14, 2010)

Facts: Hickman was convicted of failure to register. When officers tried to locate him at his address, they were told by other residents that he moved. Hickman contacted police the same day, and was directed to report to the police station and to fill out a new registration form. He was told there would be an administrative part to his interview, then a criminal investigation portion of the interview. He provided information about his current address and the past address/residence. After doing so, he was advised of his Miranda warnings and provided a statement. He was not advised his pre-Miranda statements would not be used against him.

Held: Post-warning confessions obtained during a deliberate two-step interrogation where the midstream Miranda warnings do not effectively apprise a suspect of his rights must be suppressed. Here, under the unique circumstances of this case, the Miranda warnings were not sufficient to advise Hickman of his rights.


Jury Instructions: Instructions must be clear that there are separate mens rea elements for intentional assault and injury caused by recklessness or negligence.

State v. Holzknecht ___ Wn.App.___ (Div II) (No. 63017-2)(Sep. 13, 2010)

Facts: Holzknecht was charged with three counts of assault of a child 2 for alleged assaults on his infant daughter. He was convicted of two counts as charged and one lesser count of assault on a child 3. On appeal he challenged the jury instructions, arguing the state was relieved of it burden to prove the separate mens rea elements of intentional assaults and that the injury was caused by recklessness or criminal negligence.

Held: The instructions did not relieve the state of its burden. The instructions properly advised the jury of the separate mens rea elements for the assault and the injury. The jury verdict finding the defendant guilty of a lesser in one count further supports a finding that the jury was not confused by the instructions.

Defense: Good faith claim of title defense applies to theft prosecutions and does not extend to theft related crimes such as PSP.

State v. Hawkins ___ Wn.App.___ (Div III) (No. 28118-3)(Sep. 9, 2010)

Facts: The defendant was convicted of possession of stolen property. His attorney failed to raise the defense of good faith claim of title. On appeal, he alleged his attorney was ineffective for failing to raise the defense.

Held: The good faith claim of title defense does not apply to theft related crimes, such as possession of stolen property crimes. Defense counsel was not ineffective for failing to raise the defense.


Unlawful Possession of Firearm (UPFA): Firearm need not be operable during the commission of the crime.

State v. Raleigh ___ Wn.App.___ (Div II) (No. 39221-6)(Sep. 8, 2010)

Facts: Raleigh was arrested with two others leaving the scene of a residential burglary. A search of their vehicle produced a box containing a real gun and two toy guns. He was charged with unlawful possession of a firearm (UPFA). The real gun was not working, pitted and rusty, but it was tested and later made operable by the state’s firearm expert. Raleigh was convicted of unlawful possession of a firearm. On appeal, he argued that the state must prove the firearm was operable for a UPFA charge.

Held: For purpose of the crime of UPFA, the state must prove the defendant possessed a firearm and the relevant prior conviction. The firearm need not be operable at the time of the offense for the crime of UPFA.


Jurisdiction/Tribal Lands: The state has jurisdiction over all Indians while operating a motor vehicle on public roads on an Indian Reservation.

State v. Abrahamson ___ Wn.App.___ (Div I) (No. 62699-0)(Sep. 8, 2010)

Facts: Abrahamson, a member of the Spokane Indian Tribe, was charged in Snohomish County Superior Court with several criminal traffic offenses which occurred on the Tulalip Indian Reservation. He challenged the State’s jurisdiction over criminal traffic matters on tribal land.

Held: The state has assumed jurisdiction over Indians operating motor vehicles on public roads on an Indian Reservation. RCW 37.12.010 is unambiguous.

Marijuana Prosecutions For Year 2009 Near Record High -- Pot Arrests Now Comprise More Than One-Half Of All Drug Arrests Nationwide

September 16, 2010 - Washington, DC, USA

Washington, DC: Police prosecuted 858,408 persons for marijuana violations in 2009, according to the Federal Bureau of Investigation's annual Uniform Crime Report, released yesterday. The arrest total is the second highest ever reported by the FBI, and marks a 1.3 percent increase in the number of arrests reported in 2008 (847,864).

According to the report, marijuana arrests now comprise more than one-half (approximately 52 percent) of all drug arrests reported in the United States. A decade ago, marijuana arrests comprised just 44 percent of all drug arrests.

Approximately forty-six percent of all drug prosecutions nationwide are for marijuana possession.

"The numbers tell the story; the enforcement of criminal marijuana laws and the prosecution of marijuana offenders, in particular minor marijuana possession defendants, is driving the present drug war," NORML Deputy Director Paul Armentano said. "Those who claim otherwise would be better off advocating for a long-overdue reprioritization law enforcement resources and concerns.

"It makes no sense to continue to prosecute Americans for their use of a substance that poses far fewer health risks than alcohol or tobacco. A better and more sensible solution would be to legalize and regulate cannabis in a manner similar to alcohol, as is presently being proposed in California by Proposition 19."

Of those charged with marijuana violations, approximately 88 percent (758,593 Americans) were charged with possession only. The remaining 99,815 individuals were charged with "sale/manufacture," a category that includes virtually all cultivation offenses.

Regionally, the percentage of marijuana arrests was highest in the Midwest (62 percent of all drug arrests) and southern regions (56 percent of all drug arrests) of the United States, and lowest in the west, where pot prosecutions comprised only 40 percent of total drug arrests.

In 2007, the FBI reported 872,721 marijuana prosecutions in the United States, the highest total on record.

For more information, please contact Allen St. Pierre, NORML Deputy Director, at (202) 483-5500, or Paul Armentano, NORML Deputy Director, at: paul@norml.org.

updated: Sep 16, 2010

Washington State Law

Washington State Supreme Court

State v. Sanchez Valencia: In this consolidated appeal, the Court overturned a sentencing condition prohibiting the defendants from using items that could be used to ingest or process controlled substances, or to facilitate the sale or transfer of controlled substances. The court found that the action was final and the issue was primarily legal and required no further factual development, and was therefore ripe for review. The Court then reviewed the condition itself, holding that the condition was void for vagueness. In so doing, the Court clarified that the defendants need not overcome a presumption of constitutionality to challenge a community custody condition. The court then noted that the condition was vague because it prohibited the possession of any paraphernalia, not solely drug paraphernalia, and was not only vague but raised the potential for arbitrary enforcement. The opinion may be viewed at: http://www.courts.wa.gov/opinions/pdf/827311.opn.pdf.

In his concurrence, Justice James Johnson agreed that the sentencing condition was too vague, and commented that a simple correction to the term paraphernalia to specify "drug paraphernalia" would be sufficient to satisfy due process. The concurrence may be viewed at: http://www.courts.wa.gov/opinions/pdf/827311.co1.pdf

State v. Ervin: In a unanimous opinion, the Court held that two of Mr. Ervin's prior Class C felony convictions washed out for purposes of his sentence for felony violation of a protection order. Specifically, the Court held that the 17 days that Mr. Ervin spent in jail for violating a term of his probation for a misdemeanor did not interrupt the requisite "five consecutive years in the community without committing any crime that subsequently results in a conviction." The court found that the incarceration was not pursuant to a felony conviction and that Mr. Ervin had not committed any crime in the previous five year period. http://www.courts.wa.gov/opinions/pdf/832447.opn.pdf

In re Detention of Hawkins: The Court ruled that the trial court had exceeded its statutory authority in ordering a polygraph examination of Mr. Hawkins regarding his sexual history as part of an evaluation into whether Mr. Hawkins was a sexually violent predator, as alleged by the State in a petition for commitment. The trial court had found that there was probable cause to believe that Mr. Hawkins was an SVP but before the matter was set for a trial the State requested, and the trial court ordered, the contested polygraph examination. The Court concluded that RCW 71.09.040 does not specifically authorize compulsory polygraphs as part of an SVP evaluation, and it is therefore reasonable to presume that the legislature intended to prohibit their use. In so holding, the Court noted that polygraphs are unreliable, inadmissible in a trial, and invasive both physically and of one's private affairs, considerations of which the legislature was doubtless mindful in drafting the statute at issue. http://www.courts.wa.gov/opinions/pdf/829071.opn.pdf

In her dissent, Justice Stephens, joined by Justices Fairhurst and Madsen agreed that polygraphs are invasive and unreliable tools that are disfavored in our legal system, but argued that the legislature intended that the Department of Social and Health Services should determine how best to evaluate SVPs, and to this end the law grants DSHS authority to regulate pretrial evaluations. Nothing in the law limits DSHS's authority to prescribe what tools or methods are appropriate in conducting an evaluation, and therefore, the dissent argued, no method of evaluation should be proscribed that otherwise falls within the ambit of permissible methods of evaluation, as does a polygraph. http://www.courts.wa.gov/opinions/pdf/829071.no1.pdf

Division One Court of Appeals

State v. Abrahmson: The court held that under the plain language of RCW 37.12.010 the State assumed jurisdiction over all criminal offenses committed by Native Americans while operating a motor vehicle on public roads on a reservation, and therefore affirmed Spokane Tribe member Abrahmson's conviction of DUI, attempting to elude, and driving while license revoked committed on the Tulalip Indian Reservation. http://www.courts.wa.gov/opinions/pdf/62699-0.pub.doc.pdf

Division Two Court of Appeals

State v. Raleigh: The Court upheld a jury verdict finding Mr. Raleigh guilty of unlawful possession of a firearm, finding that the State proved possession beyond a reasonable doubt because the firearm "(1) was a gun in fact and could have been made operable, and (2) sufficient evidence supports his conviction because the State proved his possession of the firearm." Mr. Raleigh was stopped in the area of a residential burglary, and a subsequent search of the car in which he was riding uncovered a box containing two toy guns and one real gun that appeared to have been sitting in water for a significant period of time, as it was "pitted and rusty." One of Mr. Raleigh's co-defendants admitted to ownership of the box, but another testified he had seen Mr. Raleigh place the box in the vehicle the morning of the burglary. The Court concluded that the Rencuenco decision did not overrule Faust's requirement that a gun be a gun in fact, and did not require that the gun also be operational. Further, the court found that the State actually proved that the gun in this case could be made operational. http://www.courts.wa.gov/opinions/pdf/39221-6.10.doc.pdf

Division Three Court of Appeals

State v. Hawkins: The court held that the defense of good faith claim of title does not apply to possession of stolen property cases. Rather, that defense by its very terms applies to a prosecution for theft, not to theft-related crimes such as possession of stolen property. The court also found that the trial court erred in excluding evidence concerning that motive for Mr. Hawkins' in-laws to frame him for the crime, but concluded that the error was harmless, as the motive was available only on the two counts for which Mr. Hawkins was acquitted. http://www.courts.wa.gov/opinions/pdf/281183.opn.doc.pdf


Federal Law

Ninth Circuit Court of Appeals

Kittel v. Thomas: Mr. Kittel, filing pro se, challenged a Bureau of Prisons rule that categorically excludes from an early release incentive program prisoners whose offenses of conviction involved firearms possession. The Court affirmed the District Court dismissal of the petition, noting that the petition was moot in light of the decision in Arrington, which held that the rule at issue was procedurally invalid under the APA because the BOP did not adequately provide a rationale for the adoption of the rule. Since filing the petition, Mr. Kittel had qualified for and been granted early release. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/07/09-35630.pdf

Armstrong v. Schwarzenegger: Defendants in this case denied any responsibility for making accommodations for prisoners and parolees under the ADA, claiming that regulations implementing the ADA, which make explicit that an entity cannot avoid its ADA obligations by operating “through contractual, licensing, or other arrangements” with third parties, 28 C.F.R. § 35.130(b)(1), are “manifestly contrary to the” ADA. The Court found that the defendants claims were without merit and upheld the District Court order requiring the defendants to make reasonable accommodations to prisoners and parolees that are housed in county jails. However, the Court found that the specific relief ordered by the district court could not be affirmed because there was insufficient evidence to justify that relief. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/07/09-17144.pdf

United States v. Crews: Holding that a conviction under Oregon's second degree assault statute is a crime of violence under the Sentencing Guidelines' residual clause, the Court affirmed Mr. Crews' conviction and sentence. In so holding, the court concluded that “[i]ntentionally or knowingly caus[ing] physical injury to another by means of a deadly or dangerous weapon,” the definition of second degree assault in the State of Oregon “otherwise involves conduct that presents a serious potential risk of physical injury to another,” as required under the sentencing guidelines, and likewise involves purposeful, aggressive conduct. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/08/09-30183.pdf

Rhodes v. Robinson: The Court found that the district court erred in dismissing several of Mr. Rhodes' claims as unexhausted under the Prison Litigation Reform Act (PLRA), as the exhaustion requirement of the PLRA is satisfied as long as Mr. Rhodes exhausted his administrative remedies with respect to the new claims asserted in his SAC before he tendered that complaint to the court for filing. As Mr. Rhodes asserted that he did so, and this assertion was not contradicted by the record, the district court should not have dismissed the claims. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/08/08-16363.pdf

Thompson v. Runnel: The Court held that when police deliberately withheld Mr. Thompson's Miranda warnings until after he confessed to the charged crime, the later reading of the warnings was rendered ineffective. The Court found that the subsequent use at trial of Mr. Thompson's confession was prejudicial and constitutionally infirm, and reversed the district court's denial of Mr. Thompson's petition for a writ of habeas corpus.

In his dissent, Judge Ikuta argued that Mr. Thompson's confessions were voluntary and the mere fact that they were preceded by a period of questioning before Miranda was read did not render the confessions inadmissible. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/08/08-16186.pdf

Heishman v. Ayers: The Court affirmed the denial of Mr. Heishman's appeal from his petition for a writ of habeas corpus claiming ineffective assistance of counsel during the penalty phase and prosecutorial misconduct during the guilt phase of trial. The court found that the failure of the prosecution to correct the false testimony of the prosecution's key witness concerning the scope of her prior criminal activity and remuneration for her testimony and the prosecutor's failure to turn over material concerning that witnesses' past that would have been relevant for impeachment purposes did not, and could not have, changed the verdict against Mr. Heishman. The court also found that defense counsel's alleged failure to begin sentencing investigations until two months prior to sentencing hearings was not deficient, and counsel's alleged failure to follow through with a psychological evaluation of Mr. Heishman was not prejudicial.

In his concurrence, Judge Silverman noted that there was no evidence that the psychologist would have uncovered the mitigating circumstances Mr. Heishman alleged existed if he were in fact examined by the psychologist at the time of trial in this case. The decision and concurrence may be viewed at: http://www.ca9.uscourts.gov/datastore/opinions/2010/09/08/07-99016.pdf

United States v. Bennett: The Court found that there was insufficient evidence to support Mr. Bennett's conviction for bank fraud for allegedly fraudulently procuring mortgages from Equicredit Corporation, a wholly-owned subsidiary of Bank of America (BOA) for his fraudulent house flipping scheme. Specifically, the Court held that there was no evidence that BOA had custody or control of its subsidiary's funds, and the government could therefore not prove that Mr. Bennett fraudulently obtained assets owned by a financial institution, as Equicredit itself was not a financial institution.

In his dissent, Judge Callahan argued that the funds obtained from Equicredit were in fact under the custody and control of BOA even if BOA did not actually exercise actual control over Equicredit. BOA owned 100% of Equicredit's shares and could exercise some control over its subsidiary. The dissent argued that the conviction should have been affirmed. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/06-50580.pdf

United States v. Espinoza-Morales: The court found that Mr. Espinoza-Morales' prior conviction for sexual battery and his conviction for penetration with a foreign object under the California Penal Code did not constitute crimes of violence warranting a 16-level sentencing enhancement for the crime of illegal re-entry following deportation. The Court concluded that neither the crimes themselves constituted crimes of violence, and the facts of the underlying offenses did not constitute violent crimes at federal law. The Court reversed the sentence and remanded for re-sentencing.

In his dissent, Judge Walter disagreed after a review of the facts of the underlying convictions that they could correctly be categorized as non-violent crimes. The dissent pointed out that the facts showed violence in the acts committed by Mr. Espinoza-Morales, and argued the sentencing enhancement was proper. http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-50267.pdf


In Other News:

Revised Code of Judicial Conduct: On September 10, 2010, the Washington State Supreme Court adopted a revised code of judicial conduct, the first major revision of the rules governing judicial behavior since 1995. Changes to the code include rules addressing the recusal of judges based on monetary contributions to campaigns and the reinstatement of the rule requiring judges to refrain from the “appearance of impropriety” standard to promote public confidence. The revised code may be found online at: http://www.courts.wa.gov/newsinfo/content/pdf/cjcOrder.pdf.

Anne Bremner pleads guilty to DUI

Washington Case Law Ipdates August 9 - 20, 2010

SUPREME COURT

Criminal Mistreatment: Child and Dependant are Not Mutually Exclusive Terms

State v. Mitchell, ___ Wn.2d ___ (Aug. 12, 2010)

Facts: The defendant was convicted of criminal mistreatment for the abuse and neglect of a four year old boy.

Held: The State established beyond a reasonable doubt all of the essential elements of the crime. The terms child and dependent are not mutually exclusive for purposes of establishing whether “people who assume responsibility to provide the basic necessities of life for a dependent person” can be found guilty of criminal mistreatment when the victim is a child.

Persistent Offender: Verdict Finding of Firearm Facially Valid in Determining whether the Defendant Was Armed with a Deadly Weapon

In re Cruze, __ Wn.2d ___ (Aug 12, 2010)

Facts: The defendant was sentenced to life in prison as a persistent offender. Several years after the one year time limit to appeal had passed, he filed a PRP and challenged the second strike conviction, a 1996 drug conviction with a special verdict finding that he was armed with a firearm at the time of the drug crime. In the PRP, he argued that the 1996 conviction was facially invalid and should not qualify as a “most serious offense.”

Held: A deadly weapon verdict is any verdict or finding made in compliance with the procedures of former RCW 9.94A.125 that determines that the defendant used an item that former RCW 9.94A.125 defined as a deadly weapon. Where state established that the defendant was armed with a firearm, and not specifically a deadly weapon, the conviction is facially valid and the one-year time bar applies.


Search/Seizure: Gant Still Applies; No Good Faith Exception for Police

State v Adams, __ Wn.2d ___ (Aug 19, 2010)

Facts: The defendant was arrested on a warrant and his vehicle was searched incident to arrest, yielding drugs. Here, the defendant was not in reaching distance of the passenger compartment at the time of the search, there was no officer safety concern and no need to secure evidence of the crime of arrest. The State argued good faith exception should apply.

Held: There is no good faith exception to the exclusionary rule under the Washington Constitution.


Double Jeopardy: Violated when court explicitly holds vacated less conviction alive for reinstatement should the more serious conviction for the same criminal conduct fail on appeal.

State v. Turner, __ Wn.2d ___ (Aug 19, 2010)

Facts: Two separate defendants were convicted of multiple crimes. Based on double jeopardy some lesser crimes were vacated at sentencing but conditionally. The trial courts issued order stating that if the greater convictions were overturned on appeal, the convictions of the vacated crimes could be reinstated.

Held: In some circumstances that a lesser conviction previously vacated may be revived following appellate reversal of the more serious conviction, but explicit conditional vacation of a lesser conviction violates double jeopardy. The court may not state orally, or include in the judgment and sentence, any reference to the vacated conviction, nor can the court make reference to the vacated conviction at sentencing.


WASHINGTON COURT OF APPEALS


Sentencing/Crime Against Law Enforcement Officer: Sufficient evidence supports the aggravating circumstance that the defendant committed the crime against a law enforcement officer.

Search/Seizure: an unlawful seizure by police does not justify shooting at the police officer when only faced with loss of freedom. A person may only use reasonable and proportional force to resist injury from an officer.

State v Mann, ___ Wn.App.___ (Div. III) (No. 27317-2-III) (Aug.12, 2010)

Facts: The defendant was a passenger in a vehicle stopped for a traffic infraction. He ran from the scene, fleeing after the patrol officer instructed him to stop. Police followed his footprints and found him. Gunfire was exchanged and he was arrested. He was charged with and convicted of assault 1, and other weapons and drug charges, and the aggravator of committing the offense against a law enforcement officer. He received an exceptional sentence of 48 months above the standard range. The defendant challenged the seizure for the first time on appeal.

Held: There was sufficient evidence to show the defendant knew that the victim was a law enforcement officer. The defendant testified that he thought it was the police that found him and told him to surrender, but denied shooting intentionally. Forensic evidence contradicted the defendant’s version of an accidental shooting.

The seizure was unlawful, but that did not excuse the defendant’s conduct of shooting at the officer. A person can use reasonable and proportional force to resist injury from an officer during an arrest but not when faced only with loss of freedom.


71.09: evidence that a respondent may be eligible for the CPP program is not admissible in 71.09 proceeding unless the option would certainly exist upon unconditional release.

In Re Mulkins, ___ Wn.App. ___ (Div I)(No. 63222-1-I)(Aug. 9, 2010)

Facts: The respondent had two prior convictions for child molestation, one juvenile and one adult. Prior to his release from prison on the adult matter, the State filed a 71.09 petition. While serving his sentence, he received a letter from DSHS indicating he might be eligible for a voluntary program of supervision (CPP). He sought to introduce the letter at trial but the court denied it.

Held: A respondent in a 71.09 proceeding is not entitled to present evidence that he is eligible to participate in the CPP program unless the evidence establishes the option would in fact exist for him upon his unconditional release from detention. The letter only indicated he might qualify, not that he had been accepted. The trial court properly refused to allow the letter into evidence.

71.09: A jury demand made after a 71.09 case has been set for trial is generally too late.

71.09: First degree statutory rape is a automatically “crime of sexual violence.”

In Re Coppin, ___ Wn.App.___ (Div I)(No. 64963-9)(Aug 16, 2010)

Facts: The State sought to have Mr. Coppin civilly committed under RCW 71.09. Six days prior to trial Mr. Coppin waived his right to a jury trial. On the first morning of trial he requested a jury trial.

Held: The trial court did not abuse its discretion when it denied Mr. Coppin a jury trial on the first morning of trial. A jury demand made after a 71.09 case has been set for trial is generally too late.

In order to have a person civilly committed under RCW 71.09, the State must show the person has been convicted of or charged with a crime of sexual violence. Here, first degree statutory rape is automatically “crime of sexual violence,” and the State need not specifically show the crime involved violence.

Felony DUI: Whether a prior offense meets the statutory definition of 46.61.5055(13) is not an element of the crime. It is a threshold question of law for the court to determine admissibility of the prior offense at trial.

State v. Chambers, ___ Wn.App.___ (Div I)(No. 61857-1)(Aug 16, 2010)

Facts: The defendant was charged and convicted of felony DUI. Her prior offenses included three Washington convictions and a California conviction. The defense requested a bifurcated trial, which the court denied, then argued that the jury had to find the out of state prior met the definition of prior offense.

Held: The validity of a prior conviction is a question of law and a threshold question of admissibility for the court to decide, but the fact that the defendant has prior convictions that elevate a crime to a felony is a essential element that he State must prove to the jury beyond a reasonable doubt.

Duress Defense: Prior criminal association with others which recklessly contributes to the circumstances of duress is an exception to the defense.

State v. Healy, ___ Wn.App.___ (Div I)(No. 62994-8)(Aug 16, 2010)

Facts: The defendant was tried for burglarizing model homes. He testified that he was forced to commit the crimes by two former associates who threatened him and his 82 year old mother. The jury was instructed on the defense of duress, including optional language explaining that the defense is not available if the defendant recklessly puts himself in a situation likely to result in duress.

Held: Here, the court properly allowed the language in the instruction on the recklessness exception. The defendant testified that he had previously been criminally involved with the associates who forced him to commit these crimes and he failed to avail himself of several non-criminal options when he was threatened.

Prosecutorial Misconduct: A prosecutor may comment on a witness’ veracity as long as the prosecutor does not express a personal opinion and the comments are not intended to incite the passions of the jury.

Sentencing: Because the free crimes aggravator falls into the prior conviction exception to Blakely, notice is not required before the State seeks an exceptional sentence under that aggravator.

State v. Edvalds, ___ Wn.App.___ (Div I)(No. 64953-1)(Aug 16, 2010)

Facts: The defendant was convicted of burglary, theft and possession of drugs. On appeal he alleged prosecutorial misconduct. During trial the prosecutor questioned the defendant’s credibility. He also mentioned surveillance despite an order in limine that the parties not use the term surveillance.

Held: Regarding the comments on the defendant’s credibility, the defendant failed to show on appeal that the comments were improper or created prejudice. A prosecutor may comment on a witness’ veracity as long as the prosecutor does not express a personal opinion and the comments are not intended to incite the passions of the jury. Regarding the mention of surveillance, the prosecutor did his best to abide by the court’s order in limine while having an officer identify the defendant.

After trial but prior to sentencing, the defendant pleaded guilty to several new felonies. The State sought an exceptional sentence on the charges the defendant had taken to trial under the free crimes provision of the SRA. On appeal, the defendant argued the State’s failure to give him notice that it would be seeking an exceptional sentence meant the court could not impose an exceptional sentence. The Court of Appeals disagreed, holding the because the free crimes aggravator falls into the prior conviction exception to Blakely, notice is not required before the State seeks an exceptional sentence under that aggravator.


Indecent Exposure: A witness does not need to observe exposed genitalia to prove the crime of indecent exposure.

Sentencing/Sexual Motivation/404b: The aggravator may be proven by prior convictions if they establish a sexually motivated pattern of behavior.

Double Jeopardy/Unit of Prosecution: The unit of prosecution for indecent exposure is per exposure, not per witness, even if exposure to witnesses is separated by time.

State v. Vars, ___ Wn.App.___ (Div I)(No. 64963-9)(Aug 16, 2010)

Facts: The defendant was charged and convicted of two counts of indecent exposure with sexual motivation for roaming the streets of a Kirkland neighborhood in the early morning hours naked. Two witnesses saw him but did not see his genitalia. On appeal he challenged the sufficiency of the evidence on the underlying crime as well as the aggravator. The trial court allowed in evidence of 3 of the defendant’s 8 similar priors to establish proof of the aggravator.

Held: A witness need not see the offender’s exposed genitalia to establish proof of the underlying crime. If an obscene exposure takes place when another is present, and the offender knew the exposure likely would cause reasonable alarm the offender has committed the crime. Here there was sufficient evidence of the sexual motivation aggravator. The common elements of the prior similar offenses permit the reasonable inference that the conduct was sexually motivated.

Sealed Records: Redacted indigent defense billing records of a closed criminal case may be accessed by the media under GR 15.

State v. Mendez, ___ Wn.App.___ (Div I)(No. 27535-3)(Aug 19, 2010)

Facts: The defendant was charged with Aggravated Murder in Yakima County and the State filed a death penalty notice. The court appointed death penalty qualified attorneys. A “budget judge” that was separate from the trial judge was appointed to address costs and attorney fees. Defense counsel sought an obtained an order sealing the billing records and related documents. After the case resolved, the Yakima Herald sought the billing records under the Public Records Act. The trial court denied the motion. The paper appealed then later moved to intervene, arguing that the records could be unsealed under GR 15 (e)(2) since the case was final. The trial court granted the motion to unseal the documents subject to redactions to protect privileged communications and attorney work product.

Held: The newspaper has standing to intervene to unseal the records, and the court did not err when allowing access to unprivileged materials.

Supreme Court Opinions, August 26, 2010

State v. Bunker, No Contact Orders

Former RCW 26.50.110 criminalizes all no-contact order violations and is not limited to contacts with the protected party that are violent, threaten violence or occur in a specifically prohibited place.

State v. Kintz, Stalking

Trial court's interpretation of "separate occasions" upheld where the the acts were "dinstinct, individual, noncontinuance occurence or incident", but not necessarily separated in time. In both incidents, defendant's conduct occurred over a very short period of time.

State v. Meneses, Telephone Harassment (Mens Rea); Double Jeopardy

Telephone Harassment requires that the jury find that the defendant form the intent to harass at the time the call is "made".

Convictions for telephone harassment and intimidating a witness may not violate the double jeopardy protection against multiple punishments for the same offense.

These and all other cases from the last ninety days can be found here:
http://www.courts.wa.gov/opinions/?fa=opinions.recent