Washington State Law
Washington State Supreme Court:
State v. Russell: The court held that a trial court is not required to sua sponte give a limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction. In this case, the Court of Appeals had reversed Mr. Russell’s conviction for first degree rape of a child because evidence of Mr. Russell’s abuse of the alleged victim in other states both before and after the alleged incidents in this case was admitted without a limiting instruction. The supreme court reversed and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/843074.opn.pdf
Division One Court of Appeals:
State v. Rowland: The court held that under the facts of this case, Blakely v. Washington did not apply to require that facts supporting an exceptional sentence be tried to a jury and proved beyond a reasonable doubt on remand for resentencing from a collateral attack on a miscalculated offender score. The Court reasoned that the remand directed the trial court only to consider the second prong of the sentencing process, wherein a judge exercises his or her discretion to determine, given the aggravating facts, whether an exceptional sentence is warranted and, if so, its length. The remand did not touch upon the factual determination made by a jury, which must find in the initial sentencing hearing that facts exist beyond a reasonable doubt to support an exceptional sentence. However, the Court found that Mr. Rowland was entitled to dispute a new offender score error at his resentencing hearing, and remanded the case to correct the offender score and standard sentencing range. http://www.courts.wa.gov/opinions/pdf/64262-6.pub.doc.pdf
Division Two Court of Appeals:
Personal Restraint of Stockwell: The Court found no unlawful restraint in this partially published opinion, and denied Mr. Stockwell’s petition. In so doing, the Court found meritless Mr. Stockwell’s arguments that (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone-Club factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. http://www.courts.wa.gov/opinions/pdf/37238-0.11.cor.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Sepulveda-Barraza: The Court affirmed Mr. Sepulveda-Barraza’s conviction for importation of cocaine and possession with the intent to distribute. The court found that the district court did not err in admitting expert testimony regarding the structure and operations of drug-trafficking organizations and drug couriers, including testimony that drugs are rarely smuggled by unknowing couriers. The Court reasoned that admission of such testimony was not an abuse of the district court’s discretion, because it was relevant, probative, and not unduly prejudicial in light of Mr. Sepulveda-Barraza’s defense theory that he did not know that he was
transporting drugs. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-10362.pdf
Reeb v. Thomas: The Court held that the district court does not have subject matter jurisdiction to review the Bureau of Prisons’ (“BOP”) individualized residential drug abuse program (“RDAP”) determinations. The Court reasoned that a habeas claim cannot be sustained based solely upon the BOP’s purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law. Program statements are “internal
agency guidelines [that] may be altered by the [BOP] at will” and that are not “subject to the rigors of the Administrative Procedure Act, including public notice and comment.” The Court stressed that judicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/03/09-35815.pdf
Alaimalo v. United States: The court found that it had jurisdiction to consider this opinion, brought without a certificate of appealability, and that the prior panel’s denial on the merits of Mr. Alaimalo’s earlier petitions should not be given preclusive effect. The Court reasoned that Mr. Alaimalo was actually innocent and failing to consider his habeas petition would result in manifest injustice. The Court recognized the probability that vacating Mr. Alaimalo’s convictions for importation of methamphetamine would not reduce the length of his confinement, however, the Court noted that the action would remove “the possibility that he will be subject to their adverse collateral consequences.
In his dissent, Judge Korman argued that this appeal, no matter how decided, would have no practical consequence, as Mr. Alaimalo is sentenced to life imprisonment on other convictions and would not be released even if the convictions at issue here were to be reversed. The dissent thus objected to the meaninglessness of the writ ordered. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/28/08-56349.pdf
United States v. Salazar-Mojica: The Court upheld Mr. Salazar-Mojica’s conviction for being a deported alien found in the United States. The Court found that despite the fact that Mr. Salazar-Mojica’s prior conviction for a felony crime of violence had been reduced to a misdemeanor after his deportation and the arrest for the current offense, the felony conviction was nevertheless the appropriate standard for calculation for the sentencing range in this case, as the relevant time for determining whether a prior conviction was a felony for purposes of the enhancement is the time of the defendant’s deportation. Because Mr. Salazar-Mojica’s conviction for a crime of violence was a felony conviction at the time of his deportation, the court reasoned, the application of the 16-level enhancement was appropriate, despite the subsequent reduction to a misdemeanor. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/24/09-50632.pdf
United States v. Lynn: The Court found that Mr. Lynn’s convictions for receiving or distributing visual depictions of a minor engaging in sexually explicit conduct and for possessing visual depictions of a minor engaging in sexually explicit conduct violated double jeopardy. The Court reasoned that the convictions were based on the same underlying conduct and remanded with instructions to vacate one of the convictions, with the caveat that it could be reinstated without prejudice if his other conviction should be overturned on direct or collateral review. The Court further denied Mr. Lynn’s motion for reversal of both convictions based on insufficiency of the evidence, and found that the sentence imposed was appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-10242.pdf
United States v. Watson: The Court upheld the district court’s decision revoking Mr. Watson’s supervised release and sentencing him to three years in prison. The Court found that Mr. Watson’s eleven arrests by state authorities in Minnesota between 1996 and 2007, while he was a fugitive from federal justice based on a failure to notify his probation officer of his change in residence, were insufficient to notify federal authorities of his whereabouts. Therefore, the Court held, contrary to Mr. Watson’s arguments, his term of supervision was tolled under federal authorities could resume supervision, that is, upon his arrest by federal authorities in 2009. The district court thus had jurisdiction to revoke Mr. Watson’s period of supervised release, and to impose a three-year prison sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/09-50666.pdf
United States v. Hernandez-Guerrero: The Court upheld Mr. Hernandez-Guerrero’s 27-month sentence imposed upon his plea of guilty to being an alien found in the United States following deportation. The Court found that the district court did not err in using the date he reentered the country instead of the date he was actually found in the country in the computation of Mr. Hernandez-Guerrero’s criminal history score. The district court had included in that score a 1992 controlled substance conviction as having been imposed within fifteen years of the commencement of the current offense, a date based upon Mr. Hernandez-Guerrero’s re-entry date. The crime would not have been part of Mr. Hernandez-Guerrero’s offender score had the district court used the date he was actually found in the country for computation of this score. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/23/10-50096.pdf
United States Supreme Court:
Michigan v. Bryant: In an opinion authored by Justice Sotomayor, and joined by Justices Roberts, Breyer, Kennedy, and Alito, the Court held that a deceased victim’s identification and description of his shooter and the location of the shooting were not testimonial statements because their primary purpose was “to enable police assistance to meet an ongoing emergency,” as sanctioned under Davis. Therefore, their admission at Mr. Bryant’s trial in this case did not violate the Confrontation Clause. The Court stressed that the Davis decision had found that statements made “in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” are not testimonial. Rather, such statements are only testimonial when made in the absence of such emergency to “establish or prove past events potentially relevant to later criminal prosecution.” However, though this case, the Court added a new dimension to the “primary purpose inquiry,” ruling that the objective intent of both the declarant and the interrogator was to be considered in determining whether a statement was testimonial. The Court stressed that the existence of an ongoing emergency at the time of the encounter is among the most important circumstances informing the purpose of the interrogation. The Court reasoned that his inquiry is highly context-dependent and relies not just upon whether the threat to the first victim has been neutralized, because the threat to police and public may continue, as the Court found it did here when an armed assailant remained at large. The Court further reasoned that a victim’s medical condition is similarly important to the primary purpose inquiry, as it sheds light on the victim’s ability to have a purpose and provides a context for first responders to judge the existence and magnitude of any continuing threat. However, the Court specifically found that this “does not mean that an emergency lasts the entire time that a perpetrator is on the loose…” and stressed that whether an ongoing emergency exists is but one factor informing the ultimate inquiry regarding the primary purpose of an interrogation. Among others are the formality of the encounter, the statements and actions of both the declarant and interrogators, including the content of both the questions and answers.
In an opinion concurring in the judgment, Justice Thomas agreed that the admission of the victim’s out-of-court statements did not violate the Confrontation Clause, but reached this conclusion because he believed the victim’s questioning by police “lacked sufficient formality and solemnity for his statements to be considered ‘testimonial.’” Justice Thomas disagreed with the use of the “primary purpose test,” calling it an “exercise in fiction that is disconnected from history and yields no predictable results.” Instead, Justice Thomas argued that the Court should consider the extent resembles those “historical practices that the Confrontation Clause addressed.”
In a dissent, Justice Scalia called the Court’s conclusion “patently incorrect on the facts,” and lambasted the precedent set by this case as one that “distorts our Confrontation Clause jurisprudence and leaves it in a shambles.” Justice Scalia argued for a continued adherence to the “Confrontation Clause that the People adopted, as described in Crawford v. Washington.” Under that jurisprudence, the dissent maintained that the intent of the declarant was the primary consideration, particularly whether the declarant intended the statement to be a solemn declaration rather than an unconsidered or offhand remark and whether he made the statement with the understanding that it may be used to “invoke the coercive machinery of the State against the accused.” The dissent argued that the “hidden purpose of an interrogator cannot substitute for the declarant’s intentional solemnity or his understanding of how his words may be used.” The dissent posited that the declarant-focused inquiry would work in every fact pattern, and to impose a different standard is senseless, particularly in cases of spontaneous statements made without interrogation that are nonetheless testimonial in nature. The dissent noted that, “[s]orting out the primary purpose of a declarant with mixed motives is sometimes difficult. But adding in the mixed motives of the police only compounds the problem. Now courts will have to sort through two sets of mixed motives to determine the primary purpose of an interrogation.” In this case, the dissent posited, the victim had little intent in making his statement save to ensure the arrest and prosecution of his assailant. The victim doubtless had little fear of being shot again once he was surrounded by five armed police officers, the dissent pointed out, and, even considering the test set forth by the Court, the dissent observed that the police likewise likely had little fear that the alleged assailant would come after them or other members of the public, as they were aware that this was a drug-related shooting, not a crime spree, and that in the majority of murder cases, there is but one victim. Further, the dissent noted, the questions regarding identity and address were not necessary to provide medical treatment to the victim, only to ensure capture of the killer. The dissent further criticized as a throwback to the pre-Crawford law the Court’s announcement that future cases should look to “standard rules of hearsay, designed to identify some statements as reliable,” when deciding whether a statement is testimonial, noting that “[w]e tried that approach to the Confrontation Clause for nearly 25 years before Crawford rejected it as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause.” The dissent further disagreed with the context-driven inquiry set forth by the Court in this decision, noting that it would pave the way for results-based decisions, and opened up arenas of debate over factors considered in the balancing tests set forth by the Court that need not be considered.
In her dissent, Justice Ginsburg agreed with Justice Scalia’s conclusions that the victim’s statements in this case were testimonial and that “[t]he declarant’s intent is what counts.” Justice Ginsburg further agreed that even if the interrogator’s intent factored in, in this case the statements would nevertheless be testimonial. However, Justice Ginsburg wrote separately to add the observation that a dying declaration is a well-established exception to the confrontation requirement, and that such issue should have been properly tendered in this case, to allow the court to consider whether the exception for dying declarations survives the Court’s recent Confrontation Clause decisions.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-150.pdf
Pepper v. United States: In an opinion authored by Justice Sotomayor and joined in full by Justices Roberts, Scalia, Kennedy, and Ginsburg and joined in part by Justices Breyer and Alito, the Court ruled that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s post-sentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the Guidelines range. The Court reasoned that this was such a case, as Mr. Pepper had, since sentencing, overcome an addiction, attended college, found a steady job, reconciled with his father, gotten married, and was supporting his family. The Court held that this information was validly before the sentencing court, citing Williams v. New York, which held that a sentencing court should have wide discretion as to the evidence considered, thus allowing it to tailor a punishment to fit the offender and not merely the crime. The Court noted that this principle had been codified under 18 U.S.C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). Though the Court recognized that the sentencing guidelines were a good starting point, it found other factors should be considered in both the initial sentencing and any subsequent resentencing after appeal. The Court specifically found that post-sentencing rehabilitation evidence could support a downward variance from the Guidelines range, and that Mr. Pepper’s rehabilitation was clearly relevant to the selection of an appropriate sentence in this case. The Court further found that §3742(g)(2)—which prohibits a district court at resentencing from imposing a sentence outside the Guidelines range except upon a ground it relied upon at the prior sentencing—is invalid after Booker, and that this section does not reflect a Congressional intent to bar consideration of post-sentencing rehabilitation evidence.
In a partial concurrence, Justice Breyer agreed that 18 U. S. C. §3742(g)(2) is invalid under Booker. He also agreed that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of post-sentencing rehabilitation. However, Justice Breyer emphasized that “this conclusion does not leave a sentencing court free to disregard the Guidelines at will,” but “permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so.”
In a partial concurrence and partial dissent, Justice Alito agreed that the decision could not be affirmed on the basis of 18 U. S. C. §3742(g), as this provision has been rendered invalid under Booker. Justice Alito also concurred in the judgment “to the extent that it holds that the decision below regarding evidence of post-sentencing rehabilitation must be reversed.” However, Justice Alito stressed that judges should still be required in almost all cases to give significant weight to the police decisions embodied in the Guidelines. However, the justice recognized that the policy statement in the instant matter is distinguishable from almost all of the other rules that the Commission has adopted, and thus concurred in the end result for this case.
In a dissent, Justice Thomas argued that the Court of Appeals decision should have been affirmed, and Mr. Pepper’s 65 month sentence upheld. The dissent argued that the Federal Sentencing Guidelines, as written, “do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s post-sentencing rehabilitation.” In so arguing, the dissent appeared to once again take issue with the holdings in Booker and Kimbrough which rendered the Guidelines advisory rather than mandatory, and argued that there is “no principled way to apply the Booker remedy,” and therefore the Guidelines should be applied as written unless so doing would be a Sixth Amendment violation.
Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-6822.pdf
Walker v. Martin: In a unanimous decision authored by Justice Ginsberg, the Court held that the “reasonableness standard” used by California courts in lieu of a determinate time limit to judge the timeliness of a habeas petition qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Federal relief is therefore unavailable for an untimely petition absent a showing of cause and prejudice. The Court found that the California rule was firmly established and regularly followed and therefore adequate under settled case law even though the exercise of discretion permits consideration of a federal claim in some cases but not others. In so holding, the Court reasoned that the requirement was framed through a trilogy of cases, and that the courts have supplied clarity through application of the rule. The Court dismissed Mr. Martin’s arguments that the terms “reasonable time” period and “substantial delay” make California’s rule too vague to be regarded as “firmly established.” The Court further found that the rule was regularly followed, lending strength to its application. The Court also decided that the California time bar was not infirm merely because it allows for differing outcomes or a bypass of the rule entirely depending on the case. The Court concluded that there was no showing that the California rule was discriminatory, and affirmed the denial of habeas relief. http://www.supremecourt.gov/opinions/10pdf/09-996.pdf
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Washington State Law
Washington State Supreme Court:
In Re Discipline of Ferguson: The Court upheld a 90 suspension of Sandra Ferguson’s law license, finding that the disciplinary board’s imposition of that suspension in lieu of the 30 days recommended by the hearing officer was reasonable in light of the hearing officer’s findings that Ms. Ferguson appeared ex parte before a superior court judge in a contested matter without notice to opposing counsel, failed to disclose all relevant facts at an ex parte hearing, and obtained relief through misrepresentation and deceit in violation of the Rules of Professional Conduct. The Court reasoned that the enhanced suspension time was warranted in light of aggravating factors in this case. http://www.courts.wa.gov/opinions/pdf/2007198.opn.pdf
In his concurrence/dissent, Justice Alexander agreed with the suspension, but dissented with regard to the length, arguing that there was no justification for the Court’s downward departure from the ABA recommended suspension of 180 days. http://www.courts.wa.gov/opinions/pdf/2007198.ip1.pdf
Division One Court of Appeals:
State v. Mohamoud: The Court held that the deferred disposition statute, RCW 13.40.127, does not authorize the juvenile court to order a post-conviction deferred disposition on its own initiative. The Court concluded that the legislature did not intend to grant a juvenile court this type of authority, and the court in this case therefore lacked authority to order the deferred disposition in this case. In any case, the Court found that the deferred disposition would have been void because the trial court failed to follow all statutory requirements. The Court reversed and remanded for resentencing. http://www.courts.wa.gov/opinions/pdf/64958-2.pub.doc.pdf
Division Two Court of Appeals:
State v. Johnson: The Court found that a locomotive meets the definition of a “railway car” for the purposes of the burglary statute, and meets the statutory definition of a “building” for purposes of second degree burglary. Specifically, the Court found that the statutory definition of “building” includes “any…railway car,” a locomotive is therefore a railway car and a building. The Court also found that the trial court did not err in admitting a sales receipt found on Mr. Johnson at the time of his arrest showing that the prior day he had sold 105 pounds of copper wire to Valley Recycling. The court presumed that the trial court admitted the receipt as circumstantial evidence of Mr. Johnson’s motive or intent and instructed the jury on the limits of its use. As such, the Court concluded, the evidence was both relevant and admissible.
In her dissent, Judge Van Deren argued that the definition of “railway car” was ambiguous, as dicta in prior cases suggest that a locomotive is a “railway car,” however the ordinary dictionary definition of “railway car” does not encompass locomotive. Accordingly, the dissent would hold that whether a locomotive falls under the phrase “railway car” is subject to more than one reasonable interpretation and the rule of lenity should apply, with a holding that a locomotive is not a railway car under the burglary statute. Given this definition, there was insufficient evidence to find Mr. Johnson guilty of second degree burglary, and the case should have been dismissed. http://www.courts.wa.gov/opinions/pdf/39607-6.11.doc.pdf
Division Three Court of Appeals:
State v. Weber: The Court agreed with the superior court’s determination that the stop for speeding in this case did not support the district court’s legal conclusion that the stop was pretextual. The Court affirmed the superior court’s action in remanding the case for trial. The Court concluded that under Ladson, both a subjective intent of the officer and the reasonableness of the stop must be considered before finding a pretext and, in this case there was a reasonable stop with no improper motive, and therefore no basis for finding that the traffic stop was pretextual. http://www.courts.wa.gov/opinions/pdf/281922.opn.doc.pdf
In his dissent, Judge Sweeney argued that the superior court applied the wrong standard of review in this case, and improperly weighed the evidence, substituting its own judgment for that of the district court. The dissent argued that the test is not whether the appellate or superior courts would have found a different motive for the stop, but whether there is sufficient evidence, which if believed, would support the district court’s finding on the factual question of motive. The dissent posited that the standard was met in this case and the superior court’s decision should be reversed and the district court’s suppression order affirmed. http://www.courts.wa.gov/opinions/pdf/281922.dis.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
Stanley v. Cullen: Mr. Stanley filed an amended habeas petition in federal court asserting claims arising out of both the guilty and penalty phases of his arson and murder trial, including competency claims. The district court held that a biased juror rendered invalid the verdict of the competency jury and remanded to the state court to allow that court to determine whether it was feasible to conduct a retrial to decide whether Mr. Stanley was competent during his penalty phase trial. The district court denied all of Mr. Stanley’s guilt phase claims and held the remaining penalty phase claims in abeyance. Mr. Stanley appealed, contending that the state trial court’s failure to institute competency proceedings sua sponte during the guilt phase violated his right to procedural due process. Second, he contended that his trial counsel were ineffective for failing to investigate or raise the issue of his competency to stand trial during the guilt phase. Third, he contended that the district court improperly denied an evidentiary hearing on a claim that counsel were ineffective in failing to raise a diminished capacity defense during the guilt phase. Fourth, he contends that the district court acted improperly in remanding to the state court for a determination whether a retrial to decide Stanley’s competency during the penalty phase is feasible. Fifth, he contends that the district court acted improperly in holding in abeyance his remaining penalty phase claims pending the state court’s decision concerning the feasibility of a retrial, and possibly pending the retrial itself, on remand. Finally, he asks us to consider an uncertified claim that he was denied a full and fair hearing by the state courts on his motions to suppress evidence. The Court found that the district court’s decisions were reasonable, and declined to certify Mr. Stanley’s uncertified claim that he was denied a “full and fair” opportunity to litigate his Fourth Amendment search and seizure claims during the pretrial phase of his trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/31/08-99026.pdf
United States v. Morris: The Court found that the government’s single plea offer in this case, in which it agreed not to file an amended information with an enhancement that would increase Mr. Morris’ sentence by ten years in exchange for a guilty plea and cooperation in an upcoming murder and drug dealing trial of a gang leader with whom Mr. Morris was associated, did not offend due process. The Court reversed the district court’s finding to the contrary, in which that court reasoned that the government’s tactics “short-circuited the truth-finding process” by requiring Mr. Morris to forfeit most of his rights from the start of the proceedings. The Court recognized that a give and take is required in the plea bargaining process, but found that this does not mean that the government “must engage in an extensive series of back-and-forth negotiations
for a plea offer to be valid.” The court concluded that “[t]here is nothing fundamentally wrong with the prosecution’s decision to present its best offer up front,” and that the government did not offend due process by extending a take it or leave it plea offer to Mr. Morris. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/02/10-10009.pdf
United States v. Smith: The Court upheld Mr. Smith’s conviction for being a felon in possession of a firearm, upholding the district court’s decision to deny Mr. Smith’s motion to suppress the gun found on his person by a police officer. The Court found that Mr. Smith was not seized by the arresting officer after he crossed the street in front of the officer’s patrol car and the officer activated his siren, pulled to the curb, and ordered Mr. Smith to stand in front of the patrol car. Instead, Mr. Smith turned and ran, and was tackled and handcuffed by the officer. This is the point at which the Court found the seizure occurred, and the Court held that there was probable cause for the seizure at this juncture. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/03/10-10036.pdf
In Re Discipline of Ferguson: The Court upheld a 90 suspension of Sandra Ferguson’s law license, finding that the disciplinary board’s imposition of that suspension in lieu of the 30 days recommended by the hearing officer was reasonable in light of the hearing officer’s findings that Ms. Ferguson appeared ex parte before a superior court judge in a contested matter without notice to opposing counsel, failed to disclose all relevant facts at an ex parte hearing, and obtained relief through misrepresentation and deceit in violation of the Rules of Professional Conduct. The Court reasoned that the enhanced suspension time was warranted in light of aggravating factors in this case. http://www.courts.wa.gov/opinions/pdf/2007198.opn.pdf
In his concurrence/dissent, Justice Alexander agreed with the suspension, but dissented with regard to the length, arguing that there was no justification for the Court’s downward departure from the ABA recommended suspension of 180 days. http://www.courts.wa.gov/opinions/pdf/2007198.ip1.pdf
Division One Court of Appeals:
State v. Mohamoud: The Court held that the deferred disposition statute, RCW 13.40.127, does not authorize the juvenile court to order a post-conviction deferred disposition on its own initiative. The Court concluded that the legislature did not intend to grant a juvenile court this type of authority, and the court in this case therefore lacked authority to order the deferred disposition in this case. In any case, the Court found that the deferred disposition would have been void because the trial court failed to follow all statutory requirements. The Court reversed and remanded for resentencing. http://www.courts.wa.gov/opinions/pdf/64958-2.pub.doc.pdf
Division Two Court of Appeals:
State v. Johnson: The Court found that a locomotive meets the definition of a “railway car” for the purposes of the burglary statute, and meets the statutory definition of a “building” for purposes of second degree burglary. Specifically, the Court found that the statutory definition of “building” includes “any…railway car,” a locomotive is therefore a railway car and a building. The Court also found that the trial court did not err in admitting a sales receipt found on Mr. Johnson at the time of his arrest showing that the prior day he had sold 105 pounds of copper wire to Valley Recycling. The court presumed that the trial court admitted the receipt as circumstantial evidence of Mr. Johnson’s motive or intent and instructed the jury on the limits of its use. As such, the Court concluded, the evidence was both relevant and admissible.
In her dissent, Judge Van Deren argued that the definition of “railway car” was ambiguous, as dicta in prior cases suggest that a locomotive is a “railway car,” however the ordinary dictionary definition of “railway car” does not encompass locomotive. Accordingly, the dissent would hold that whether a locomotive falls under the phrase “railway car” is subject to more than one reasonable interpretation and the rule of lenity should apply, with a holding that a locomotive is not a railway car under the burglary statute. Given this definition, there was insufficient evidence to find Mr. Johnson guilty of second degree burglary, and the case should have been dismissed. http://www.courts.wa.gov/opinions/pdf/39607-6.11.doc.pdf
Division Three Court of Appeals:
State v. Weber: The Court agreed with the superior court’s determination that the stop for speeding in this case did not support the district court’s legal conclusion that the stop was pretextual. The Court affirmed the superior court’s action in remanding the case for trial. The Court concluded that under Ladson, both a subjective intent of the officer and the reasonableness of the stop must be considered before finding a pretext and, in this case there was a reasonable stop with no improper motive, and therefore no basis for finding that the traffic stop was pretextual. http://www.courts.wa.gov/opinions/pdf/281922.opn.doc.pdf
In his dissent, Judge Sweeney argued that the superior court applied the wrong standard of review in this case, and improperly weighed the evidence, substituting its own judgment for that of the district court. The dissent argued that the test is not whether the appellate or superior courts would have found a different motive for the stop, but whether there is sufficient evidence, which if believed, would support the district court’s finding on the factual question of motive. The dissent posited that the standard was met in this case and the superior court’s decision should be reversed and the district court’s suppression order affirmed. http://www.courts.wa.gov/opinions/pdf/281922.dis.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
Stanley v. Cullen: Mr. Stanley filed an amended habeas petition in federal court asserting claims arising out of both the guilty and penalty phases of his arson and murder trial, including competency claims. The district court held that a biased juror rendered invalid the verdict of the competency jury and remanded to the state court to allow that court to determine whether it was feasible to conduct a retrial to decide whether Mr. Stanley was competent during his penalty phase trial. The district court denied all of Mr. Stanley’s guilt phase claims and held the remaining penalty phase claims in abeyance. Mr. Stanley appealed, contending that the state trial court’s failure to institute competency proceedings sua sponte during the guilt phase violated his right to procedural due process. Second, he contended that his trial counsel were ineffective for failing to investigate or raise the issue of his competency to stand trial during the guilt phase. Third, he contended that the district court improperly denied an evidentiary hearing on a claim that counsel were ineffective in failing to raise a diminished capacity defense during the guilt phase. Fourth, he contends that the district court acted improperly in remanding to the state court for a determination whether a retrial to decide Stanley’s competency during the penalty phase is feasible. Fifth, he contends that the district court acted improperly in holding in abeyance his remaining penalty phase claims pending the state court’s decision concerning the feasibility of a retrial, and possibly pending the retrial itself, on remand. Finally, he asks us to consider an uncertified claim that he was denied a full and fair hearing by the state courts on his motions to suppress evidence. The Court found that the district court’s decisions were reasonable, and declined to certify Mr. Stanley’s uncertified claim that he was denied a “full and fair” opportunity to litigate his Fourth Amendment search and seizure claims during the pretrial phase of his trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/31/08-99026.pdf
United States v. Morris: The Court found that the government’s single plea offer in this case, in which it agreed not to file an amended information with an enhancement that would increase Mr. Morris’ sentence by ten years in exchange for a guilty plea and cooperation in an upcoming murder and drug dealing trial of a gang leader with whom Mr. Morris was associated, did not offend due process. The Court reversed the district court’s finding to the contrary, in which that court reasoned that the government’s tactics “short-circuited the truth-finding process” by requiring Mr. Morris to forfeit most of his rights from the start of the proceedings. The Court recognized that a give and take is required in the plea bargaining process, but found that this does not mean that the government “must engage in an extensive series of back-and-forth negotiations
for a plea offer to be valid.” The court concluded that “[t]here is nothing fundamentally wrong with the prosecution’s decision to present its best offer up front,” and that the government did not offend due process by extending a take it or leave it plea offer to Mr. Morris. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/02/10-10009.pdf
United States v. Smith: The Court upheld Mr. Smith’s conviction for being a felon in possession of a firearm, upholding the district court’s decision to deny Mr. Smith’s motion to suppress the gun found on his person by a police officer. The Court found that Mr. Smith was not seized by the arresting officer after he crossed the street in front of the officer’s patrol car and the officer activated his siren, pulled to the curb, and ordered Mr. Smith to stand in front of the patrol car. Instead, Mr. Smith turned and ran, and was tackled and handcuffed by the officer. This is the point at which the Court found the seizure occurred, and the Court held that there was probable cause for the seizure at this juncture. http://www.ca9.uscourts.gov/datastore/opinions/2011/02/03/10-10036.pdf
Monday, January 31, 2011
CASE LAW UPDATE - JANUARY 31, 2011
Washington State Supreme Court:
State v. Irby: The Court affirmed the Court of Appeals’ decision to reverse Mr. Irby’s convictions for first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary. The Court concluded that the trial court violated Mr. Irby’s rights under both the federal and state constitutions to be present at trial by conducting a portion of the jury selection process by e-mail in Mr. Irby’s absence. The Court further found that this error was not harmless. http://www.courts.wa.gov/opinions/pdf/826650.opn.pdf
In her dissent, Chief Justice Madsen, joined by Justices Charles Johnson, James Johnson, and Fairhurst, argued that the majority treats the “routine process” used for excusing several potential jurors as a critical stage of the trial. Instead, the dissent argued, the majority should have recognized that the trial court has broad discretion to excuse jurors for a range of reasons not pertaining to Mr. Irby’s case, and the distinction should have been made between excusing jurors for reasons not pertaining to Mr. Irby’s case and those relevant to his case. Further, the dissent argued that the fact Mr. Irby was not present for discussions between the court and counsel regarding whether to excuse jurors for reasons related to Mr. Irby’s case did not affect his ability to prepare for his defense, as a defendant’s right to be present at jury selection exists only if his presence would substantially relate to his ability to defend himself. Finally, the dissent argued that to the extent any juror was released for reasons related to the circumstances of Mr. Irby's trial, none of these potential jurors sat on Irby's jury. Therefore, if any error occurred in releasing these jurors, it was harmless error. http://www.courts.wa.gov/opinions/pdf/826650.no1.pdf
Division One Court of Appeals:
Personal Restraint of Heidari: The Court granted Mr. Heidari’s PRP, accepting the State’s concession that there was insufficient evidence as a matter of law to support his conviction for child molestation in the second degree and that there was a sentencing error on the conviction for rape of a child in the first degree. The Court declined, however, to grant the State’s request to remand for entry of judgment on the lesser included offense of attempted child molestation, holding that a remand for resentencing on the lesser included crime of attempt is precluded where the jury is not instructed on that crime. http://www.courts.wa.gov/opinions/pdf/63040-7.pub.doc.pdf
Division Three Court of Appeals:
State v. Acevedo: The court affirmed the trial court’s refusal to overturn Mr. Acevedo’s conviction for possession of a stolen motor vehicle, holding that a vehicle does not have to be operable or, indeed complete – this “vehicle” was purchased without a motor or transmission – to satisfy the elements of this crime. However, the Court found that the trial court improperly ordered restitution for the full value of the vehicle in its undamaged condition because that level of restitution appears unrelated to the crime for which Mr. Acevedo was convicted. The Court further held that the prohibition in Mr. Acevedo’s sentence against possession of deadly weapons was not crime related or authorized by statute, and remanded for resentencing and the setting of a modified restitution amount. http://www.courts.wa.gov/opinions/pdf/286339.cor.doc.pdf
Personal Restraint of Benavidez: The Court dismissed Mr. Benavidez’ PRP, finding meritless his contention that the amended information failed to notify him that he faced a firearm enhancement. The Court noted that the information advised Mr. Benavidez that he was charged with a crime and armed with a firearm while committing the crime, and that the information further cited the deadly weapon special verdict statute, all of which placed Mr. Benavidez on notice that he was charged with a deadly weapon enhancement. The court ruled that the judgment and sentence were facially valid, and the petition untimely and frivolous. http://www.courts.wa.gov/opinions/pdf/284433.opn.doc.pdf
State v. Smith: The Court affirmed the trial court’s modification of Mr. Smith’s sentence, finding such modification was appropriate when the sentence had originally included partial confinement, which option had been eliminated due to budget reductions. The Court found that this constituted an extraordinary circumstance that could not have been anticipated at the time of sentencing. The Court reasoned that the sentencing judge made clear that the partial confinement aspect was an important part of the sentence he had imposed, and a fundamental underpinning of the judge’s sentencing decision was changed and his sentencing objective thereby undermined. http://www.courts.wa.gov/opinions/pdf/287696.opn.doc.pdf
Federal Law
United States Supreme Court:
Swarthout v. Cooke: Mr. Cooke was sentenced by a California court to an indeterminate term of seven years to life after he was convicted of attempted first degree murder in 1991. He filed the instant writ of habeas corpus after the parole board determined in November 2002 that he was ineligible for parole based on the “especially cruel and callous manner” of his commitment offense his failure to participate fully in rehabilitative programs; his failure to develop marketable skills; and three incidents of misconduct while in prison. The board further dismissed Mr. Cooke’s favorable psychological report as not credible because it included several inconsistent and erroneous statements. His co-respondent in this petition, Mr. Clay, who had been convicted of first-degree murder in 1978, was in fact approved for parole in 2003, but that decision by the parole board was reversed by the governor. The governor cited the gravity of Mr. Clay’s crime, his extensive criminal history, his failure to participate fully in self-help programs, and his unrealistic plans for employment and housing after being paroled, which increased his chances of recidivism. The Ninth Circuit Court of Appeals reversed both decisions, finding that there was insufficient evidence to support the denial in both cases. In a Per Curiam opinion, the Supreme Court denied certiorari, but reversed the Ninth Circuit, finding that the Court misapplied the law in its holding. The court observed that a federal court may issue a writ of habeas corpus to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” which was not the case here. The Court further observed that, though Mr. Cook and Mr. Clay were deprived of a liberty interest, the procedures followed by the State were constitutionally sufficient. However, rather than stopping its inquiry at that point, the Ninth Circuit, the Court reasoned, had reviewed the state courts’ decisions on the merits. “The short of the matter,” the Court concluded, “is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.”
In her concurrence, Justice Ginsberg pointed out that California only requires “some evidence,” to support a parole denial, unlike other states, which require prisoners to meet specified criteria. The concurrence therefore agreed with the majority decision.
http://www.supremecourt.gov/opinions/10pdf/10-333.pdf
Ninth Circuit Court of Appeals:
United States v Munoz-Camarena: The court withdrew its September 3, 2010 opinion in this case and granted Mr. Munoz-Camarena’s petition for re-hearing in part. Specifically, the Court ordered the district court to re-calculate Mr. Munoz-Camarena’s sentence in light of the intervening United States Supreme Court holding in Carachuri-Rosendo v. Holder, which casts doubt on the district court’s calculation of the recommended Guidelines sentence in this case. The court found that the district court should have applied a four-level enhancement rather than an eight-level enhancement that was applied for an aggravated felony, as the prior convictions do not constitute aggravated felonies. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/28/09-50088.pdf
United States v. Lichtenberg: The court affirmed Mr. Lichtenberg’s 112-month sentence for wire fraud, money laundering, and making a false statement in connection with a passport application. The Court found that the above-Guidelines sentence properly took into account facts of a different nature than those required for an enhancement under the Guidelines. The court also found that the district court identified a need for a lengthy sentence to prevent Mr. Lichtenberg from profiting from the crime by moving outside the United States to live comfortably off the money he had stolen, much of which had not been recovered. The Court finally found meritless Mr. Lichtenberg’s argument that the sentence was above and beyond that normally imposed for similar crimes. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/09-10191.pdf
United States v. Leyva-Martinez: The Court affirmed Mr. Leyva-Martinez’ 70-month sentence for illegal re-entry after deportation. The Court deemed proper the 16-level sentencing enhancement, finding that his prior conviction for inflicting corporal injury on a spouse or co-habitant is plainly a crime of violence. The Court further ruled that Almendarez-Torres v. United States, which permits enhancement based on the existence of a prior felony, has never been overruled by the Supreme Court, and Mr. Leyva-Martinez’ prior convictions need not be proven beyond a reasonable doubt. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/10-50269.pdf
United States v. Jenkins: The Court upheld Mr. Jenkins’ and co-defendant Mr. Gentry’s convictions on multiple counts of securities fraud, wire fraud, international concealment money laundering, concealment money laundering, transactional money laundering, as well as one count of tax evasion and conspiracy to defraud the United States and commit wire fraud, securities fraud, and mail fraud. The Court found that the statute of limitations had not expired before the indictment was filed, that there was sufficient evidence to support the convictions on all counts, that the jury’s instructions on money laundering were proper, and that the district court did not err at sentencing in calculating the amount of loss and number of victims. The Court further found that Mr. Jenkins’s sentence was reasonable, and that the district court properly denied Mr. Gentry’s motion to sever his trial from Mr. Jenkins’, and that the district court properly denied Mr. Gentry’s motion for additional cross-examination of a government witness. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-10109.pdf
United States v. Carothers: The Court found that neither the Double Jeopardy Clause nor Mr. Carothers’ decision to elect a Jackson instruction on the lesser included offense of simple possession posed a barrier to a retrial of Mr. Carothers for possession with intent to distribute. The district court’s error in the verdict form that did not allow the jury to report its unanimous verdict on simple possession along with its deadlock on intent to distribute in this case was compounded when the court ordered a mistrial on both the greater offense and the lesser included and, when it realized the error, dismissed the indictment concluding that Jackson and Double Jeopardy barred re-trial. The court reversed on the government’s motion and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-50191.pdf
United States v. Gonzalez-Diaz: The Court affirmed Mr. Gonzalez-Diaz’ conviction for being found in the United States, ruling that the fact that Mr. Gonzalez-Diaz entered Canada a day before he was “found” in this country, and was in the company of the authorities upon re-entry did not bar his prosecution for this offense. The Court reasoned that Mr. Gonzalez-Diaz never legally entered Canada, and was in custody the entire time he was on Canadian soil. Therefore, the Court concluded, he remained in the United States until found there on the date of his arrest. Because Mr. Gonzalez-Diaz was not entering the United States from a foreign country, the Court held, the official restraint doctrine does not apply. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-30002.pdf
United States v. Burgum: The Court vacated Mr. Burgum’s 180-month sentence following his guilty plea to two counts of armed bank robbery. The Court found that the district court’s sentence was not improperly based on the statutory maximum and was not substantively unreasonable. However, the Court found that the district court relied on Mr. Burgum’s inability to pay restitution as an aggravating factor in imposing the sentence, an action that constituted plain error affecting substantial rights that compromised the fairness and integrity of the sentencing hearing.
Judge O’Scannlain dissented, arguing that when viewed in the context of the sentencing as a whole, it was clear that the district court judge upwardly departed from the sentencing guidelines because of the violent nature of the robberies of which Mr. Burgum was convicted, and that the judge’s reference to unlikely restitution “was an incidental observation that did not affect the sentence.” http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-50449.pdf
United States v. Potter: The Court affirmed Mr. Potter’s conviction for possession of a firearm in furtherance of drug trafficking. The Court found that the statute was not unconstitutional on its face or as applied, and does not violate the Second Amendment. In so holding, the Court reasoned that the personal right to bear arms in one’s home extends only to the lawful possession and use of a firearm, not the unlawful use of such a weapon in furtherance of drug trafficking. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/26/09-30266.pdf
State v. Irby: The Court affirmed the Court of Appeals’ decision to reverse Mr. Irby’s convictions for first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary. The Court concluded that the trial court violated Mr. Irby’s rights under both the federal and state constitutions to be present at trial by conducting a portion of the jury selection process by e-mail in Mr. Irby’s absence. The Court further found that this error was not harmless. http://www.courts.wa.gov/opinions/pdf/826650.opn.pdf
In her dissent, Chief Justice Madsen, joined by Justices Charles Johnson, James Johnson, and Fairhurst, argued that the majority treats the “routine process” used for excusing several potential jurors as a critical stage of the trial. Instead, the dissent argued, the majority should have recognized that the trial court has broad discretion to excuse jurors for a range of reasons not pertaining to Mr. Irby’s case, and the distinction should have been made between excusing jurors for reasons not pertaining to Mr. Irby’s case and those relevant to his case. Further, the dissent argued that the fact Mr. Irby was not present for discussions between the court and counsel regarding whether to excuse jurors for reasons related to Mr. Irby’s case did not affect his ability to prepare for his defense, as a defendant’s right to be present at jury selection exists only if his presence would substantially relate to his ability to defend himself. Finally, the dissent argued that to the extent any juror was released for reasons related to the circumstances of Mr. Irby's trial, none of these potential jurors sat on Irby's jury. Therefore, if any error occurred in releasing these jurors, it was harmless error. http://www.courts.wa.gov/opinions/pdf/826650.no1.pdf
Division One Court of Appeals:
Personal Restraint of Heidari: The Court granted Mr. Heidari’s PRP, accepting the State’s concession that there was insufficient evidence as a matter of law to support his conviction for child molestation in the second degree and that there was a sentencing error on the conviction for rape of a child in the first degree. The Court declined, however, to grant the State’s request to remand for entry of judgment on the lesser included offense of attempted child molestation, holding that a remand for resentencing on the lesser included crime of attempt is precluded where the jury is not instructed on that crime. http://www.courts.wa.gov/opinions/pdf/63040-7.pub.doc.pdf
Division Three Court of Appeals:
State v. Acevedo: The court affirmed the trial court’s refusal to overturn Mr. Acevedo’s conviction for possession of a stolen motor vehicle, holding that a vehicle does not have to be operable or, indeed complete – this “vehicle” was purchased without a motor or transmission – to satisfy the elements of this crime. However, the Court found that the trial court improperly ordered restitution for the full value of the vehicle in its undamaged condition because that level of restitution appears unrelated to the crime for which Mr. Acevedo was convicted. The Court further held that the prohibition in Mr. Acevedo’s sentence against possession of deadly weapons was not crime related or authorized by statute, and remanded for resentencing and the setting of a modified restitution amount. http://www.courts.wa.gov/opinions/pdf/286339.cor.doc.pdf
Personal Restraint of Benavidez: The Court dismissed Mr. Benavidez’ PRP, finding meritless his contention that the amended information failed to notify him that he faced a firearm enhancement. The Court noted that the information advised Mr. Benavidez that he was charged with a crime and armed with a firearm while committing the crime, and that the information further cited the deadly weapon special verdict statute, all of which placed Mr. Benavidez on notice that he was charged with a deadly weapon enhancement. The court ruled that the judgment and sentence were facially valid, and the petition untimely and frivolous. http://www.courts.wa.gov/opinions/pdf/284433.opn.doc.pdf
State v. Smith: The Court affirmed the trial court’s modification of Mr. Smith’s sentence, finding such modification was appropriate when the sentence had originally included partial confinement, which option had been eliminated due to budget reductions. The Court found that this constituted an extraordinary circumstance that could not have been anticipated at the time of sentencing. The Court reasoned that the sentencing judge made clear that the partial confinement aspect was an important part of the sentence he had imposed, and a fundamental underpinning of the judge’s sentencing decision was changed and his sentencing objective thereby undermined. http://www.courts.wa.gov/opinions/pdf/287696.opn.doc.pdf
Federal Law
United States Supreme Court:
Swarthout v. Cooke: Mr. Cooke was sentenced by a California court to an indeterminate term of seven years to life after he was convicted of attempted first degree murder in 1991. He filed the instant writ of habeas corpus after the parole board determined in November 2002 that he was ineligible for parole based on the “especially cruel and callous manner” of his commitment offense his failure to participate fully in rehabilitative programs; his failure to develop marketable skills; and three incidents of misconduct while in prison. The board further dismissed Mr. Cooke’s favorable psychological report as not credible because it included several inconsistent and erroneous statements. His co-respondent in this petition, Mr. Clay, who had been convicted of first-degree murder in 1978, was in fact approved for parole in 2003, but that decision by the parole board was reversed by the governor. The governor cited the gravity of Mr. Clay’s crime, his extensive criminal history, his failure to participate fully in self-help programs, and his unrealistic plans for employment and housing after being paroled, which increased his chances of recidivism. The Ninth Circuit Court of Appeals reversed both decisions, finding that there was insufficient evidence to support the denial in both cases. In a Per Curiam opinion, the Supreme Court denied certiorari, but reversed the Ninth Circuit, finding that the Court misapplied the law in its holding. The court observed that a federal court may issue a writ of habeas corpus to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States,” which was not the case here. The Court further observed that, though Mr. Cook and Mr. Clay were deprived of a liberty interest, the procedures followed by the State were constitutionally sufficient. However, rather than stopping its inquiry at that point, the Ninth Circuit, the Court reasoned, had reviewed the state courts’ decisions on the merits. “The short of the matter,” the Court concluded, “is that the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts, and is no part of the Ninth Circuit’s business.”
In her concurrence, Justice Ginsberg pointed out that California only requires “some evidence,” to support a parole denial, unlike other states, which require prisoners to meet specified criteria. The concurrence therefore agreed with the majority decision.
http://www.supremecourt.gov/opinions/10pdf/10-333.pdf
Ninth Circuit Court of Appeals:
United States v Munoz-Camarena: The court withdrew its September 3, 2010 opinion in this case and granted Mr. Munoz-Camarena’s petition for re-hearing in part. Specifically, the Court ordered the district court to re-calculate Mr. Munoz-Camarena’s sentence in light of the intervening United States Supreme Court holding in Carachuri-Rosendo v. Holder, which casts doubt on the district court’s calculation of the recommended Guidelines sentence in this case. The court found that the district court should have applied a four-level enhancement rather than an eight-level enhancement that was applied for an aggravated felony, as the prior convictions do not constitute aggravated felonies. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/28/09-50088.pdf
United States v. Lichtenberg: The court affirmed Mr. Lichtenberg’s 112-month sentence for wire fraud, money laundering, and making a false statement in connection with a passport application. The Court found that the above-Guidelines sentence properly took into account facts of a different nature than those required for an enhancement under the Guidelines. The court also found that the district court identified a need for a lengthy sentence to prevent Mr. Lichtenberg from profiting from the crime by moving outside the United States to live comfortably off the money he had stolen, much of which had not been recovered. The Court finally found meritless Mr. Lichtenberg’s argument that the sentence was above and beyond that normally imposed for similar crimes. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/09-10191.pdf
United States v. Leyva-Martinez: The Court affirmed Mr. Leyva-Martinez’ 70-month sentence for illegal re-entry after deportation. The Court deemed proper the 16-level sentencing enhancement, finding that his prior conviction for inflicting corporal injury on a spouse or co-habitant is plainly a crime of violence. The Court further ruled that Almendarez-Torres v. United States, which permits enhancement based on the existence of a prior felony, has never been overruled by the Supreme Court, and Mr. Leyva-Martinez’ prior convictions need not be proven beyond a reasonable doubt. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/27/10-50269.pdf
United States v. Jenkins: The Court upheld Mr. Jenkins’ and co-defendant Mr. Gentry’s convictions on multiple counts of securities fraud, wire fraud, international concealment money laundering, concealment money laundering, transactional money laundering, as well as one count of tax evasion and conspiracy to defraud the United States and commit wire fraud, securities fraud, and mail fraud. The Court found that the statute of limitations had not expired before the indictment was filed, that there was sufficient evidence to support the convictions on all counts, that the jury’s instructions on money laundering were proper, and that the district court did not err at sentencing in calculating the amount of loss and number of victims. The Court further found that Mr. Jenkins’s sentence was reasonable, and that the district court properly denied Mr. Gentry’s motion to sever his trial from Mr. Jenkins’, and that the district court properly denied Mr. Gentry’s motion for additional cross-examination of a government witness. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-10109.pdf
United States v. Carothers: The Court found that neither the Double Jeopardy Clause nor Mr. Carothers’ decision to elect a Jackson instruction on the lesser included offense of simple possession posed a barrier to a retrial of Mr. Carothers for possession with intent to distribute. The district court’s error in the verdict form that did not allow the jury to report its unanimous verdict on simple possession along with its deadlock on intent to distribute in this case was compounded when the court ordered a mistrial on both the greater offense and the lesser included and, when it realized the error, dismissed the indictment concluding that Jackson and Double Jeopardy barred re-trial. The court reversed on the government’s motion and remanded for a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-50191.pdf
United States v. Gonzalez-Diaz: The Court affirmed Mr. Gonzalez-Diaz’ conviction for being found in the United States, ruling that the fact that Mr. Gonzalez-Diaz entered Canada a day before he was “found” in this country, and was in the company of the authorities upon re-entry did not bar his prosecution for this offense. The Court reasoned that Mr. Gonzalez-Diaz never legally entered Canada, and was in custody the entire time he was on Canadian soil. Therefore, the Court concluded, he remained in the United States until found there on the date of his arrest. Because Mr. Gonzalez-Diaz was not entering the United States from a foreign country, the Court held, the official restraint doctrine does not apply. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/24/10-30002.pdf
United States v. Burgum: The Court vacated Mr. Burgum’s 180-month sentence following his guilty plea to two counts of armed bank robbery. The Court found that the district court’s sentence was not improperly based on the statutory maximum and was not substantively unreasonable. However, the Court found that the district court relied on Mr. Burgum’s inability to pay restitution as an aggravating factor in imposing the sentence, an action that constituted plain error affecting substantial rights that compromised the fairness and integrity of the sentencing hearing.
Judge O’Scannlain dissented, arguing that when viewed in the context of the sentencing as a whole, it was clear that the district court judge upwardly departed from the sentencing guidelines because of the violent nature of the robberies of which Mr. Burgum was convicted, and that the judge’s reference to unlikely restitution “was an incidental observation that did not affect the sentence.” http://www.ca9.uscourts.gov/datastore/opinions/2011/01/25/09-50449.pdf
United States v. Potter: The Court affirmed Mr. Potter’s conviction for possession of a firearm in furtherance of drug trafficking. The Court found that the statute was not unconstitutional on its face or as applied, and does not violate the Second Amendment. In so holding, the Court reasoned that the personal right to bear arms in one’s home extends only to the lawful possession and use of a firearm, not the unlawful use of such a weapon in furtherance of drug trafficking. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/26/09-30266.pdf
Monday, January 24, 2011
By K.C. Mehaffey
World staff writer
Saturday, January 22, 2011
OKANOGAN — John Novak is in a fight with the law over what he believes is his right to grow medical marijuana for himself and another medical marijuana patient at his remote Okanogan County home.
He’s hoping the battle doesn’t turn out the way it did for the guy in his dad’s hit song, “I fought the law.”
Novak, 45, says he is the son of the late Bobby Fuller, best known for the 1965 top-ten single with the familiar refrain that ends “and the law won.”
But in his case, Novak says, the law is on his side. If a judge doesn’t dismiss the criminal charges against him next week, he thinks a jury will see it his way when his case goes to trial Feb. 1.
Full story at:
Wenatchee World - Medical Marijuana
World staff writer
Saturday, January 22, 2011
OKANOGAN — John Novak is in a fight with the law over what he believes is his right to grow medical marijuana for himself and another medical marijuana patient at his remote Okanogan County home.
He’s hoping the battle doesn’t turn out the way it did for the guy in his dad’s hit song, “I fought the law.”
Novak, 45, says he is the son of the late Bobby Fuller, best known for the 1965 top-ten single with the familiar refrain that ends “and the law won.”
But in his case, Novak says, the law is on his side. If a judge doesn’t dismiss the criminal charges against him next week, he thinks a jury will see it his way when his case goes to trial Feb. 1.
Full story at:
Wenatchee World - Medical Marijuana
Case Law Update 1.24.11
Washington State Supreme Court:
State v. Barber: The court overruled State v. Miller to the extent that decision calls for specific performance of a plea agreement that would bind the court to impose a sentence that is contrary to law; in this case, a plea agreement that failed to include a statutorily mandated term of community custody. The Court limited the remedy of specific performance to the situation in which the State breaches its promise to make a specific charging decision or recommendation to the sentencing court. http://www.courts.wa.gov/opinions/pdf/836400.opn.pdf
State v. Schultz: In a plurality opinion authored by Justice Chambers and joined by Justices Sanders, Stephens, James Johnson and Charles Johnson, the Court overturned Ms. Schultz’ conviction for possession of illegal substances. Here, the State claimed entry was proper under the emergency exception when police had a report of yelling in an apartment and heard only raised voices, including a man saying he needed his space prior to knocking on the door. After contacting Ms. Schultz, who initially denied that there was anyone else in the apartment and then called a male out of his room, police entered the apartment based only on Ms. Schultz’ acquiescence to their entry. The Court held that these facts were insufficient to support entry under the emergency exception. In so doing, the Court made modifications to the test under which the emergency aid exception may be applied. The Court further held that the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, and further – and more importantly – specifically found that “mere acquiescence to an officer’s entry is not consent and not an exception to our state’s constitutional protection of the privacy of the home.” http://www.courts.wa.gov/opinions/pdf/822387.opn.pdf
In her dissent, Justice Fairhurst, joined by Justices Madsen, Alexander, and Owens, argued that the majority altered the three part test for the finding of entry under the emergency aid exception, and adopted new, unnecessary factors to add to the test. The dissent further argued that under the original three factors, the application of the emergency aid exception should stand and the conviction should have been affirmed. http://www.courts.wa.gov/opinions/pdf/822387.no1.pdf
Disciplinary Proceeding Against J. David Smith: The court held that a rule 10.14(c) of the Rules of Enforcement of Lawyer Conduct (ELC), which provides that a civilian criminal conviction is conclusive evidence of the underlying misconduct at an attorney disciplinary proceeding, does not violate state and federal constitutional requirements. Mr. Smith was disbarred, as recommended by the hearing officer. http://www.courts.wa.gov/opinions/pdf/2007481.opn.pdf
Disciplinary Proceeding Against Paul King: Mr. King, who pled guilty to federal mail fraud, challenged the subsequent disbarment recommendation, arguing that the proceedings against him were unfair, that disciplinary counsel should have been disqualified, that the hearing officer failed to follow hearing rules with regard to settlement of the hearing transcript, and that Mr. King’s guilty plea should not be binding where he was not permitted to enter an Alford plea. The court found Mr. Kings’ disbarment warranted and his arguments against such action meritless. http://www.courts.wa.gov/opinions/pdf/2007619.opn.pdf
Division One Court of Appeals:
State v. Miles: The Court remanded this case for further proceedings, finding that the trial court improperly decided that evidence found in a search warrant for Mr. Miles’ bank records that was related to a complaint filed against Mr. Miles with the Securities Division of the Department of Financial Institutions was suppressible. The Court found that the trial court improperly applied the independent source exception, under which an unlawful search does not invalidate a subsequent search if (1) the issuance of the search warrant is based on untainted, independently obtained information, and (2) the State's decision to seek the warrant is not motivated by the previous unlawful search and seizure. Because there was no dispute that the search warrant application in this case was based on untainted evidence and did not contain any information learned from the illegal search and seizure, it was not clear that the trial court used the correct legal standard in analyzing the independent source exception, and the court did not address the question of whether the State's decision to seek the warrant was motivated by evidence obtained in the previous unlawful search, the Court remanded. http://www.courts.wa.gov/opinions/pdf/61474-6.pub.doc.pdf
State v. Williams: The Court found that Mr. Williams’ rights were not violated by the imposition of an exceptional sentence that did not exceed the statutory maximum when there had been a jury finding that Mr. Williams committed the crime under aggravating circumstances. The Court further found that Mr. Williams additional claims of error were unpersuasive, including a claim that the trial court denied him due process when it did not reinstruct the jury on the “presumption of innocence” during the aggravating circumstances portion of the trial and a claim that the trial court erred in denying his motion for a retrial based on spectator misconduct. http://www.courts.wa.gov/opinions/pdf/63213-2.pub.doc.pdf
State v. Winkle: The Court affirmed Mr. Winkle’s sentence for convictions on two counts of rape of a child in the third degree. The trial court had imposed a term of 60 months, the statutory maximum for this offense, and a term of community custody for earned early release limited to the statutory maximum. The court found that the sentence was in line with recent amendments to the SRA, which prohibits a term of confinement and a term of community custody in excess of the statutory maximum, as the SRA in any event requires that a defendant convicted of a sex offense must be transferred to community custody in lieu of earned early release, and the court specifically mandated that the sentence imposed would not exceed the statutory maximum sentence. http://www.courts.wa.gov/opinions/pdf/64367-3.pub.doc.pdf
State v. Brown: The Court affirmed Mr. Brown’s convictions, finding that the trial court correctly found that multiple no contact order violations based on contact on separate days did not violate double jeopardy, and that the trial court properly declined to give a Petrich instruction because Mr. Brown engaged in a continuing course of conduct. Further, the Court found that no prejudice resulted when the State argued that Mr. Brown’s alibi was not credible, and that Mr. Brown received effective assistance of counsel because his counsel’s performance was not deficient. Finally, the Court found that Mr. Brown’s argument that the State failed to prove underlying criminal conduct fails under Bunker. http://www.courts.wa.gov/opinions/pdf/63607-3.cor.doc.pdf
Detention of Ticeson: The Court affirmed Mr. Ticeson’s sexually violent predator commitment, finding that, as he is not a criminal defendant, Mr. Ticeson has no rights under article 1, section 22 of the Washington Constitution and therefore the trial court’s failure to require a jury unanimity as to whether Mr. Ticeson suffered from a mental abnormality and/or personality disorder which made him likely to engage in predatory acts of sexual violence if not confined to a secure facility. Further, the Court found that the court’s in-chambers conferences dealing with purely legal matters did not violate Mr. Ticeson’s right to an open proceeding. http://www.courts.wa.gov/opinions/pdf/63122-5.pub.doc.pdf
Division Two Court of Appeals:
State v. McKague: The Court upheld Mr. McKague’s convictions for third degree theft and second degree assault, as well as his lifetime sentence as a persistent offender. The Court found that the trial court properly exercised its discretion in declining to accept Mr. McKague’s request to waive a jury, that there was sufficient evidence of substantial bodily harm to support his second degree assault conviction, that the to convict instruction for second degree assault did not create an impermissible presumption that relieved the State of its burden of proof, that he was not denied ineffective assistance of counsel when his attorney withdrew a proposed instruction on an inferior degree offense, and that the fact that a judge rather than a jury found the existence of his prior convictions by a preponderance of the evidence rather than beyond a reasonable doubt did not violate his due process and equal protection rights.
In his partial concurrence and partial dissent, Judge Armstrong disagreed with the lead opinion’s conclusion that the evidence was sufficient to uphold a conviction for second degree assault, arguing that the lead opinion erroneously applied the definition of substantial bodily harm, and that the bruising in this case was did not meet that definition.
In her partial concurrence and partial dissent, Judge Quinn-Brintnall agreed that the trial court properly refused Mr. McKague’s bench trial request, that the jury instructions and the evidence properly support the jury verdict finding Mr. McKague guilty of second degree assault, and concurred that Mr. McKague's convictions should be affirmed. However, Judge Quinn-Brintnall argued that Judge Armstrong’s stated concern about the improper use of expert testimony to support the lead opinion's second degree assault sufficiency analysis is unfounded. Further, the concurrence/dissent argued that the lead opinion failed to comply with constitutional principles articulated in Apprendi and Blakely when it held that Mr. McKague was not entitled to have a jury find him a persistent offender beyond a reasonable doubt before being sentenced to life without possibility of parole. Judge Quinn-Brintnall argued that under Blakely, a trial court sitting without a jury may not constitutionally sentence a defendant to life without the possibility of parole on a class B felony that otherwise carries a maximum term of 10 years.
The lead opinion and both dissents/concurrences may be found at: http://www.courts.wa.gov/opinions/pdf/39087-6.11.doc.pdf
State v. Rice: The Court ruled that RCW 9.94A.835, .836, and .837, which involve special allegations of sexual motivation, predation, and a victim under 15 years of age, respectively, did not violate the separation of powers doctrine, did not improperly involve the trial court in plea bargaining, and did not violate due process or Eighth Amendment rights. Further, the Court held that a sentencing enhancement that mirrored and element in Ms. Rice’s underling crime (that the victim was under 15 years of age) did not violate double jeopardy, and that Ms. Rice’s sentence was not illegal. http://www.courts.wa.gov/opinions/pdf/39600-9.11.doc.pdf
State v. Bluehorse: The Court affirmed Mr. Bluehorse’s conviction for drive-by shooting but reversed his exceptional sentence based on a gang aggravator, finding that the trial court failed to base the sentence on substantial and compelling facts based on the jury’s verdict finding Mr. Bluehorse guilty of drive-by shooting with a gang aggravator. Rather, the court found that the sentence was imposed in an attempt to achieve parity with Mr. Bluehorse’s co-defendant’s standard range sentence for first degree assault based on his offender score, and violated the real facts doctrine. The Court found meritless, however, Mr. Bluehorse’s remaining contentions, that his right to public trial was violated, that the prosecution was vindictive, that his motions for a mistrial should have been granted, that the trial court should not have granted a two-month recess during the trial despite the fact it was agreed to by all parties, that the state erroneously used police reports to refresh witness’ memories, and that the cumulative errors deprived him of a fair trial. http://www.courts.wa.gov/opinions/pdf/38328-4.11.doc.pdf
Division Three Court of Appeals:
State v. Brown: The Court found that Mr. Brown’s attorney’s failure to research and advise him of the pendency of Arizona v. Gant, which Mr. Brown claimed would have required suppression of evidence against him, did not constitute ineffective assistance of counsel. The Court reasoned that to adopt Mr. Brown’s suggested standard, which would have required defense counsel to perform computer research to determine that the opinion was pending and that the lower court’s holding was on point and favorable to his position “would place an unreasonable burden on defense counsel and set a standard for diligence that obliges counsel to raise issues in anticipation of any possible change in the law. The burden on defense counsel would be especially onerous in the plea bargain context, because the consequence of a mistaken prediction could be far more adverse than time and effort spent on a failed argument -- it could be the lost offer of a favorable plea.” http://www.courts.wa.gov/opinions/pdf/284301.opn.doc.pdf
State v. Castro: The court found that the trial court’s decision of pretrial motions on legal matters in chambers with a later statement regarding those decisions in open court with an invitation to counsel to object did not violate Mr. Castro’s constitutional right to a public trial. The Court found that the matters decided did not involve any fact finding required to be open to the public, and the trial court was therefore not required to engage in a Bone-Club analysis prior to deciding the matters in chambers. http://www.courts.wa.gov/opinions/pdf/288854.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Liu: The Court affirmed Mr. Liu’s convictions for conspiracy to import, transfer, and sell high quality counterfeit United States currency. The Court found that Mr. Liu’s speedy trial rights were not violated, as the speedy trial clock restarted when his wife was added to the case as a co-defendant. The Court further found that the district court did not err in failing to give a multiple conspiracy jury instruction because there was no potential for spillover guilt in this case, and likewise did not error when it failed to give a specific unanimity jury instruction as there was no proof the omission affected his substantial rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/21/09-10136.pdf
United States v. Begay: The Court found that there was sufficient evidence to establish premeditation in support of Mr. Begay’s convictions for first degree murder, and upheld the two convictions. Specifically, the Court found that evidence that Mr. Begay had stopped near an unknown vehicle on the highway, gotten out and walked to the vehicle, where he spoke briefly to the occupants, and then returned to his truck and retrieved a gun, which he used to shoot both occupants of the car, gave him time to formulate a purpose and plan to kill the occupants of the other vehicle.
Judge Reinhardt, joined by Judge Berzon, dissented, arguing that the minimal facts set forth by the majority in its opinion failed to establish premeditation, as there was no evidence that Mr. Began reflected upon, planned, or otherwise premeditated the killing. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/12/07-10487.pdf
United States v. Basher: The Court upheld Mr. Basher’s conviction for illegal discharge of a firearm on park lands. The court found that the officers’ interaction with Mr. Basher in this case was a valid Terry encounter, and that Mr. Basher’s Fifth Amendment rights were not violated. The Court further held that Mr. Basher’s Fourth Amendment rights were not violated, as he consented to the retrieval of the shotgun from his tent. Finally, the Court found that the area of a campsite outside of a tent in these circumstances is not curtilage. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/09-30311.pdf
Miller v. Oregon Board of Parole: The Court held that Oregon’s aggravated murder review statute creates a federally-protected liberty interest in early parole eligibility, and the Due Process Clause requires that the Board of Parole’s determinations be supported by “substantial evidence” as that standard is defined under Oregon law. In this case, the Court found that the Board’s denial of relief at the conclusion of Mr. Miller’s murder review hearing did not violate his due process rights and was not an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Therefore, the Court found that Mr. Miller was not entitled to habeas corpus relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/18/07-36086.pdf
United States v. Doss: Mr. Doss appealed his conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering. The Court found that a conviction for witness tampering is proper when the defendant was found to have encouraged a witness to withhold testimony when that witness possessed a legal right or privilege not to testify. However, the Court vacated the sentence and remanded as to several counts, directing the district court to determine whether the victim in Mr. Doss’ prior sex offense conviction was a minor by a reasonable doubt standard instead of the modified categorical approach used by the district court. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/07-50334.pdf
United States v. Lindsey: The Court held that the proper remedy for a good faith, erroneous denial of a defendant’s peremptory challenge is not automatic reversal under United States v. Annigoni, but a review for plan error under Rivera v. Illinois, which the Court found effectively overruled Annigoni. The Court found in this case, where defense counsel did not object when the Court stated that it had no further peremptory challenges and did not attempt to exercise its final challenge, there was no plain error and Mr. Lindsey’s conviction should stand.
In a concurrence, Judge Pregerson wrote separately agreeing with the plain error standard of review but arguing that the case could be resolved without deciding whether Rivera overruled Annigoni, as Annigoni is inapposite to this case, where there was a good faith error, as opposed to Annigoni, where the defendant was actively prevented by the district court from exercising a peremptory challenge. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/09-50459.pdf
Perez v. Cate: The Court held that the fee caps under The Prison Litigation Reform Act (PLRA) of 150% of the “rate established” by the Criminal Justice Act “for payment of court-appointed counsel” also applies to separately billed paralegal fees under the holding in Missouri v. Jenkins.
http://www.ca9.uscourts.gov/datastore/opinions/2011/01/13/09-17185.pdf
Lopez v. Ryan: The court affirmed the district court’s denial of Mr. Lopez’ petition for a writ of habeas corpus challenging his capital sentence for first degree murder. The Court found that Mr. Lopez was given an individualized sentencing determination at which the sentencing court considered all mitigating evidence and found no leniency was warranted. The Court further found that Mr. Lopez received effective assistance of counsel, as there was no showing of error in counsel’s failure to provide the expert with eyewitness testimony caused him prejudice. Finally, the Court found no merit in Mr. Lopez’ Brady claim, reasoning that a note that was not disclosed by the government was not “material” for Brady purposes, as it included legal opinions and facts cumulative of information available in previously release police reports. Further, there was no evidence that the failure to disclose the note caused prejudice to Mr. Lopez. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/08-99021.pdf
United States Supreme Court:
Harrington v. Richter: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Harrington’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d)—which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court. The Court found that this section applied to Mr. Richter’s petition despite the fact that the State Supreme Court issued only a summary denial, as Mr. Richter did not show that there was no reasonable basis for the state court to deny relief, nor did he demonstrate that there was a more likely explanation for the state court’s decision. The Court reasoned that the Ninth Circuit in holding otherwise “failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition,” and that the Ninth Circuit’s opinion showed an “improper understanding of §2254(d)’s unreasonableness standard and operation in the context of a Strickland claim.” The Court ruled that a state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of that decision. The court found that the Ninth Circuit erred under this standard in finding Mr. Richter’s counsel’s performance deficient, as the complained of actions could have been undertaken as part of a reasonable trial strategy. The Court further found that the Ninth Circuit erred in finding prejudice to Mr. Richter, as there was no substantial likelihood of acquittal had counsel acted differently.
In her concurrence, Justice Ginsburg agreed with the judgment on the basis the any lapse by counsel was not sufficiently serious as to deprive Mr. Richter of a fair trial. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-587.pdf
Premo v. Moore: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Moore’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d) as the claim had been previously adjudicated on the merits in state court. The Court found that the State Court decision was not an unreasonable application of either part of the Strickland rule. The Court found that Mr. Moore’s counsel acted reasonably and that, even had he acted differently, there was no basis to believe that the outcome of Mr. Moore’s trial would have been different.
In a concurrence, Justice Ginsburg agreed with the Court that Mr. Moore had not shown he would have acted differently had he been better informed by counsel. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-658.pdf
State v. Barber: The court overruled State v. Miller to the extent that decision calls for specific performance of a plea agreement that would bind the court to impose a sentence that is contrary to law; in this case, a plea agreement that failed to include a statutorily mandated term of community custody. The Court limited the remedy of specific performance to the situation in which the State breaches its promise to make a specific charging decision or recommendation to the sentencing court. http://www.courts.wa.gov/opinions/pdf/836400.opn.pdf
State v. Schultz: In a plurality opinion authored by Justice Chambers and joined by Justices Sanders, Stephens, James Johnson and Charles Johnson, the Court overturned Ms. Schultz’ conviction for possession of illegal substances. Here, the State claimed entry was proper under the emergency exception when police had a report of yelling in an apartment and heard only raised voices, including a man saying he needed his space prior to knocking on the door. After contacting Ms. Schultz, who initially denied that there was anyone else in the apartment and then called a male out of his room, police entered the apartment based only on Ms. Schultz’ acquiescence to their entry. The Court held that these facts were insufficient to support entry under the emergency exception. In so doing, the Court made modifications to the test under which the emergency aid exception may be applied. The Court further held that the likelihood of domestic violence may be considered by courts when evaluating whether the requirements of the emergency aid exception to the warrant requirement have been satisfied, and further – and more importantly – specifically found that “mere acquiescence to an officer’s entry is not consent and not an exception to our state’s constitutional protection of the privacy of the home.” http://www.courts.wa.gov/opinions/pdf/822387.opn.pdf
In her dissent, Justice Fairhurst, joined by Justices Madsen, Alexander, and Owens, argued that the majority altered the three part test for the finding of entry under the emergency aid exception, and adopted new, unnecessary factors to add to the test. The dissent further argued that under the original three factors, the application of the emergency aid exception should stand and the conviction should have been affirmed. http://www.courts.wa.gov/opinions/pdf/822387.no1.pdf
Disciplinary Proceeding Against J. David Smith: The court held that a rule 10.14(c) of the Rules of Enforcement of Lawyer Conduct (ELC), which provides that a civilian criminal conviction is conclusive evidence of the underlying misconduct at an attorney disciplinary proceeding, does not violate state and federal constitutional requirements. Mr. Smith was disbarred, as recommended by the hearing officer. http://www.courts.wa.gov/opinions/pdf/2007481.opn.pdf
Disciplinary Proceeding Against Paul King: Mr. King, who pled guilty to federal mail fraud, challenged the subsequent disbarment recommendation, arguing that the proceedings against him were unfair, that disciplinary counsel should have been disqualified, that the hearing officer failed to follow hearing rules with regard to settlement of the hearing transcript, and that Mr. King’s guilty plea should not be binding where he was not permitted to enter an Alford plea. The court found Mr. Kings’ disbarment warranted and his arguments against such action meritless. http://www.courts.wa.gov/opinions/pdf/2007619.opn.pdf
Division One Court of Appeals:
State v. Miles: The Court remanded this case for further proceedings, finding that the trial court improperly decided that evidence found in a search warrant for Mr. Miles’ bank records that was related to a complaint filed against Mr. Miles with the Securities Division of the Department of Financial Institutions was suppressible. The Court found that the trial court improperly applied the independent source exception, under which an unlawful search does not invalidate a subsequent search if (1) the issuance of the search warrant is based on untainted, independently obtained information, and (2) the State's decision to seek the warrant is not motivated by the previous unlawful search and seizure. Because there was no dispute that the search warrant application in this case was based on untainted evidence and did not contain any information learned from the illegal search and seizure, it was not clear that the trial court used the correct legal standard in analyzing the independent source exception, and the court did not address the question of whether the State's decision to seek the warrant was motivated by evidence obtained in the previous unlawful search, the Court remanded. http://www.courts.wa.gov/opinions/pdf/61474-6.pub.doc.pdf
State v. Williams: The Court found that Mr. Williams’ rights were not violated by the imposition of an exceptional sentence that did not exceed the statutory maximum when there had been a jury finding that Mr. Williams committed the crime under aggravating circumstances. The Court further found that Mr. Williams additional claims of error were unpersuasive, including a claim that the trial court denied him due process when it did not reinstruct the jury on the “presumption of innocence” during the aggravating circumstances portion of the trial and a claim that the trial court erred in denying his motion for a retrial based on spectator misconduct. http://www.courts.wa.gov/opinions/pdf/63213-2.pub.doc.pdf
State v. Winkle: The Court affirmed Mr. Winkle’s sentence for convictions on two counts of rape of a child in the third degree. The trial court had imposed a term of 60 months, the statutory maximum for this offense, and a term of community custody for earned early release limited to the statutory maximum. The court found that the sentence was in line with recent amendments to the SRA, which prohibits a term of confinement and a term of community custody in excess of the statutory maximum, as the SRA in any event requires that a defendant convicted of a sex offense must be transferred to community custody in lieu of earned early release, and the court specifically mandated that the sentence imposed would not exceed the statutory maximum sentence. http://www.courts.wa.gov/opinions/pdf/64367-3.pub.doc.pdf
State v. Brown: The Court affirmed Mr. Brown’s convictions, finding that the trial court correctly found that multiple no contact order violations based on contact on separate days did not violate double jeopardy, and that the trial court properly declined to give a Petrich instruction because Mr. Brown engaged in a continuing course of conduct. Further, the Court found that no prejudice resulted when the State argued that Mr. Brown’s alibi was not credible, and that Mr. Brown received effective assistance of counsel because his counsel’s performance was not deficient. Finally, the Court found that Mr. Brown’s argument that the State failed to prove underlying criminal conduct fails under Bunker. http://www.courts.wa.gov/opinions/pdf/63607-3.cor.doc.pdf
Detention of Ticeson: The Court affirmed Mr. Ticeson’s sexually violent predator commitment, finding that, as he is not a criminal defendant, Mr. Ticeson has no rights under article 1, section 22 of the Washington Constitution and therefore the trial court’s failure to require a jury unanimity as to whether Mr. Ticeson suffered from a mental abnormality and/or personality disorder which made him likely to engage in predatory acts of sexual violence if not confined to a secure facility. Further, the Court found that the court’s in-chambers conferences dealing with purely legal matters did not violate Mr. Ticeson’s right to an open proceeding. http://www.courts.wa.gov/opinions/pdf/63122-5.pub.doc.pdf
Division Two Court of Appeals:
State v. McKague: The Court upheld Mr. McKague’s convictions for third degree theft and second degree assault, as well as his lifetime sentence as a persistent offender. The Court found that the trial court properly exercised its discretion in declining to accept Mr. McKague’s request to waive a jury, that there was sufficient evidence of substantial bodily harm to support his second degree assault conviction, that the to convict instruction for second degree assault did not create an impermissible presumption that relieved the State of its burden of proof, that he was not denied ineffective assistance of counsel when his attorney withdrew a proposed instruction on an inferior degree offense, and that the fact that a judge rather than a jury found the existence of his prior convictions by a preponderance of the evidence rather than beyond a reasonable doubt did not violate his due process and equal protection rights.
In his partial concurrence and partial dissent, Judge Armstrong disagreed with the lead opinion’s conclusion that the evidence was sufficient to uphold a conviction for second degree assault, arguing that the lead opinion erroneously applied the definition of substantial bodily harm, and that the bruising in this case was did not meet that definition.
In her partial concurrence and partial dissent, Judge Quinn-Brintnall agreed that the trial court properly refused Mr. McKague’s bench trial request, that the jury instructions and the evidence properly support the jury verdict finding Mr. McKague guilty of second degree assault, and concurred that Mr. McKague's convictions should be affirmed. However, Judge Quinn-Brintnall argued that Judge Armstrong’s stated concern about the improper use of expert testimony to support the lead opinion's second degree assault sufficiency analysis is unfounded. Further, the concurrence/dissent argued that the lead opinion failed to comply with constitutional principles articulated in Apprendi and Blakely when it held that Mr. McKague was not entitled to have a jury find him a persistent offender beyond a reasonable doubt before being sentenced to life without possibility of parole. Judge Quinn-Brintnall argued that under Blakely, a trial court sitting without a jury may not constitutionally sentence a defendant to life without the possibility of parole on a class B felony that otherwise carries a maximum term of 10 years.
The lead opinion and both dissents/concurrences may be found at: http://www.courts.wa.gov/opinions/pdf/39087-6.11.doc.pdf
State v. Rice: The Court ruled that RCW 9.94A.835, .836, and .837, which involve special allegations of sexual motivation, predation, and a victim under 15 years of age, respectively, did not violate the separation of powers doctrine, did not improperly involve the trial court in plea bargaining, and did not violate due process or Eighth Amendment rights. Further, the Court held that a sentencing enhancement that mirrored and element in Ms. Rice’s underling crime (that the victim was under 15 years of age) did not violate double jeopardy, and that Ms. Rice’s sentence was not illegal. http://www.courts.wa.gov/opinions/pdf/39600-9.11.doc.pdf
State v. Bluehorse: The Court affirmed Mr. Bluehorse’s conviction for drive-by shooting but reversed his exceptional sentence based on a gang aggravator, finding that the trial court failed to base the sentence on substantial and compelling facts based on the jury’s verdict finding Mr. Bluehorse guilty of drive-by shooting with a gang aggravator. Rather, the court found that the sentence was imposed in an attempt to achieve parity with Mr. Bluehorse’s co-defendant’s standard range sentence for first degree assault based on his offender score, and violated the real facts doctrine. The Court found meritless, however, Mr. Bluehorse’s remaining contentions, that his right to public trial was violated, that the prosecution was vindictive, that his motions for a mistrial should have been granted, that the trial court should not have granted a two-month recess during the trial despite the fact it was agreed to by all parties, that the state erroneously used police reports to refresh witness’ memories, and that the cumulative errors deprived him of a fair trial. http://www.courts.wa.gov/opinions/pdf/38328-4.11.doc.pdf
Division Three Court of Appeals:
State v. Brown: The Court found that Mr. Brown’s attorney’s failure to research and advise him of the pendency of Arizona v. Gant, which Mr. Brown claimed would have required suppression of evidence against him, did not constitute ineffective assistance of counsel. The Court reasoned that to adopt Mr. Brown’s suggested standard, which would have required defense counsel to perform computer research to determine that the opinion was pending and that the lower court’s holding was on point and favorable to his position “would place an unreasonable burden on defense counsel and set a standard for diligence that obliges counsel to raise issues in anticipation of any possible change in the law. The burden on defense counsel would be especially onerous in the plea bargain context, because the consequence of a mistaken prediction could be far more adverse than time and effort spent on a failed argument -- it could be the lost offer of a favorable plea.” http://www.courts.wa.gov/opinions/pdf/284301.opn.doc.pdf
State v. Castro: The court found that the trial court’s decision of pretrial motions on legal matters in chambers with a later statement regarding those decisions in open court with an invitation to counsel to object did not violate Mr. Castro’s constitutional right to a public trial. The Court found that the matters decided did not involve any fact finding required to be open to the public, and the trial court was therefore not required to engage in a Bone-Club analysis prior to deciding the matters in chambers. http://www.courts.wa.gov/opinions/pdf/288854.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Liu: The Court affirmed Mr. Liu’s convictions for conspiracy to import, transfer, and sell high quality counterfeit United States currency. The Court found that Mr. Liu’s speedy trial rights were not violated, as the speedy trial clock restarted when his wife was added to the case as a co-defendant. The Court further found that the district court did not err in failing to give a multiple conspiracy jury instruction because there was no potential for spillover guilt in this case, and likewise did not error when it failed to give a specific unanimity jury instruction as there was no proof the omission affected his substantial rights. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/21/09-10136.pdf
United States v. Begay: The Court found that there was sufficient evidence to establish premeditation in support of Mr. Begay’s convictions for first degree murder, and upheld the two convictions. Specifically, the Court found that evidence that Mr. Begay had stopped near an unknown vehicle on the highway, gotten out and walked to the vehicle, where he spoke briefly to the occupants, and then returned to his truck and retrieved a gun, which he used to shoot both occupants of the car, gave him time to formulate a purpose and plan to kill the occupants of the other vehicle.
Judge Reinhardt, joined by Judge Berzon, dissented, arguing that the minimal facts set forth by the majority in its opinion failed to establish premeditation, as there was no evidence that Mr. Began reflected upon, planned, or otherwise premeditated the killing. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/12/07-10487.pdf
United States v. Basher: The Court upheld Mr. Basher’s conviction for illegal discharge of a firearm on park lands. The court found that the officers’ interaction with Mr. Basher in this case was a valid Terry encounter, and that Mr. Basher’s Fifth Amendment rights were not violated. The Court further held that Mr. Basher’s Fourth Amendment rights were not violated, as he consented to the retrieval of the shotgun from his tent. Finally, the Court found that the area of a campsite outside of a tent in these circumstances is not curtilage. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/09-30311.pdf
Miller v. Oregon Board of Parole: The Court held that Oregon’s aggravated murder review statute creates a federally-protected liberty interest in early parole eligibility, and the Due Process Clause requires that the Board of Parole’s determinations be supported by “substantial evidence” as that standard is defined under Oregon law. In this case, the Court found that the Board’s denial of relief at the conclusion of Mr. Miller’s murder review hearing did not violate his due process rights and was not an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Therefore, the Court found that Mr. Miller was not entitled to habeas corpus relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/18/07-36086.pdf
United States v. Doss: Mr. Doss appealed his conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering. The Court found that a conviction for witness tampering is proper when the defendant was found to have encouraged a witness to withhold testimony when that witness possessed a legal right or privilege not to testify. However, the Court vacated the sentence and remanded as to several counts, directing the district court to determine whether the victim in Mr. Doss’ prior sex offense conviction was a minor by a reasonable doubt standard instead of the modified categorical approach used by the district court. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/07-50334.pdf
United States v. Lindsey: The Court held that the proper remedy for a good faith, erroneous denial of a defendant’s peremptory challenge is not automatic reversal under United States v. Annigoni, but a review for plan error under Rivera v. Illinois, which the Court found effectively overruled Annigoni. The Court found in this case, where defense counsel did not object when the Court stated that it had no further peremptory challenges and did not attempt to exercise its final challenge, there was no plain error and Mr. Lindsey’s conviction should stand.
In a concurrence, Judge Pregerson wrote separately agreeing with the plain error standard of review but arguing that the case could be resolved without deciding whether Rivera overruled Annigoni, as Annigoni is inapposite to this case, where there was a good faith error, as opposed to Annigoni, where the defendant was actively prevented by the district court from exercising a peremptory challenge. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/14/09-50459.pdf
Perez v. Cate: The Court held that the fee caps under The Prison Litigation Reform Act (PLRA) of 150% of the “rate established” by the Criminal Justice Act “for payment of court-appointed counsel” also applies to separately billed paralegal fees under the holding in Missouri v. Jenkins.
http://www.ca9.uscourts.gov/datastore/opinions/2011/01/13/09-17185.pdf
Lopez v. Ryan: The court affirmed the district court’s denial of Mr. Lopez’ petition for a writ of habeas corpus challenging his capital sentence for first degree murder. The Court found that Mr. Lopez was given an individualized sentencing determination at which the sentencing court considered all mitigating evidence and found no leniency was warranted. The Court further found that Mr. Lopez received effective assistance of counsel, as there was no showing of error in counsel’s failure to provide the expert with eyewitness testimony caused him prejudice. Finally, the Court found no merit in Mr. Lopez’ Brady claim, reasoning that a note that was not disclosed by the government was not “material” for Brady purposes, as it included legal opinions and facts cumulative of information available in previously release police reports. Further, there was no evidence that the failure to disclose the note caused prejudice to Mr. Lopez. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/20/08-99021.pdf
United States Supreme Court:
Harrington v. Richter: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Harrington’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d)—which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court. The Court found that this section applied to Mr. Richter’s petition despite the fact that the State Supreme Court issued only a summary denial, as Mr. Richter did not show that there was no reasonable basis for the state court to deny relief, nor did he demonstrate that there was a more likely explanation for the state court’s decision. The Court reasoned that the Ninth Circuit in holding otherwise “failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition,” and that the Ninth Circuit’s opinion showed an “improper understanding of §2254(d)’s unreasonableness standard and operation in the context of a Strickland claim.” The Court ruled that a state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of that decision. The court found that the Ninth Circuit erred under this standard in finding Mr. Richter’s counsel’s performance deficient, as the complained of actions could have been undertaken as part of a reasonable trial strategy. The Court further found that the Ninth Circuit erred in finding prejudice to Mr. Richter, as there was no substantial likelihood of acquittal had counsel acted differently.
In her concurrence, Justice Ginsburg agreed with the judgment on the basis the any lapse by counsel was not sufficiently serious as to deprive Mr. Richter of a fair trial. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-587.pdf
Premo v. Moore: In an opinion authored by Justice Kennedy and joined by Chief Justice Robert and Justices Scalia, Thomas, Breyer, Alito, and Sotomayor, the Court held that Mr. Moore’s habeas petition asserting ineffective assistance of counsel pursuant to Strickland v. Washington should be denied under 28 U. S. C. §2254(d) as the claim had been previously adjudicated on the merits in state court. The Court found that the State Court decision was not an unreasonable application of either part of the Strickland rule. The Court found that Mr. Moore’s counsel acted reasonably and that, even had he acted differently, there was no basis to believe that the outcome of Mr. Moore’s trial would have been different.
In a concurrence, Justice Ginsburg agreed with the Court that Mr. Moore had not shown he would have acted differently had he been better informed by counsel. Justice Kagan took no part in the consideration or decision of the case. http://www.supremecourt.gov/opinions/10pdf/09-658.pdf
Friday, January 21, 2011
Medical Pot Debated - Olympia, WA
JORDAN SCHRADER; Staff writer
Published: 01/21/1112:05 am
http://www.thenewstribune.com/2011/01/21/1510907/medical-pot-debated.html
The voter-approved medical-marijuana law has so many pitfalls for patients, even a couple of pillars of the Tacoma community see something to fear in it.
“Picture this: Local minister and deputy mayor arrested for having medical marijuana in their possession,” Lauren Walker said as she testified to state lawmakers Thursday on a proposed overhaul of the law.
Walker was describing her husband, the Rev. Marcus Walker, and herself, a Tacoma city councilwoman. Drawn into the strange world of medicinal cannabis just two weeks ago as part of her husband’s cancer treatment, she’s speaking up in Olympia in support of more protections from arrest for legitimate patients.
A proposal that would create those protections, and legalize the marijuana dispensaries that have cropped up in what advocates see as a gray area in the law, has broad bipartisan support in the state Senate.
But it could stumble on opposition that has been quietly building among key law enforcement officials. The Washington Association of Prosecuting Attorneys put forward an alternative proposal Thursday that seeks to avoid what Pierce County Prosecutor Mark Lindquist calls “the Starbucks approach” to the proliferation of medicinal marijuana.
REGULATING MARIJUANA
Under the 1998 ballot measure, patients can grow marijuana for their own use or designate a provider to grow on their behalf, as long as providers only serve one patient at a time.
Entrepreneurs have interpreted that to mean they can serve one patient after another in retail-style dispensaries.
Enforcement of the law has been uneven. The Tacoma City Council in October decided to suspend the city’s attempt to shut down eight dispensaries until the Legislature could clarify the law.
The council is looking to a bill authored by Sen. Jeanne Kohl-Welles of Seattle, which would license dispensaries and producers. Alternatively, up to 25 patients could band together and grow up to 99 plants in a so-called collective garden.
Today, patients have a legal defense against prosecution, but advocates say that hasn’t stopped police from harassing and arresting legitimate patients. The bill would head off arrests in a couple of ways. It would set up a voluntary registry of patients that law enforcement could access. It would give arrest protection to patients with a valid order from a medical provider and up to 24 ounces of marijuana or 15 plants.
Patients would also get protections from discrimination in employment and housing.
Kohl-Welles said bringing regulation to medical marijuana would end an underground system that has encouraged criminal activity.
“We’ve had shootouts, we’ve had armed robbery, burglary. We can’t have that going on. We need a regulated system,” she said.
PROSECUTORS, SHERIFFS OPPOSE
Lindquist agreed changes are needed but said the proposal takes the wrong approach.
“The bill as a whole seems to be more focused on creating a medical-marijuana industry than focused on providing medical marijuana,” he said. “We want to keep the focus on providing medical marijuana, because that’s what the voters passed.”
Prosecutors joined in the call for a registry and are seeking more limited forms of collective growing and arrest protection.
But they don’t want dispensaries legalized. In their proposal, a designated provider would be banned from serving multiple patients in the same 15-day period, a rule that is also in Kohl-Welles’ bill but would not apply to dispensaries.
The Washington Association of Sheriffs and Police Chiefs supports the prosecutors’ proposal, Lindquist said. Association director Don Pierce didn’t return phone calls Thursday.
The opposition from law enforcement groups could be a major hurdle. But the bill also has strong support, at least from the health committee where it sits now.
Chairwoman Karen Keiser, D-Kent, and a majority of the committee have signed on as co-sponsors. It’s backed by Democrats such as Kohl-Welles and Republicans such as Sen. Jerome Delvin of Richland.
The committee heard a long parade of mostly supportive testimony from the public, led off by Walker, who painted a picture of medical marijuana users as normal folks mostly unfamiliar with marijuana.
“It was very minimal,” she said of her previous pot exposure. “A joint was passed around a party when I was around 16, and then my Marxist relatives in northern Vermont offered marijuana cookies to my husband and me in the early 1980s. My husband threw up for three hours afterward.”
But after her husband’s treatment for melanoma left him with pain and complete loss of appetite, she said, they decided they would try anything. After a pickup at a downtown dispensary, the couple went to a family reunion and asked the young people in the room to help him figure out how to smoke it.
“His 87-year-old mother, desperate for her son’s survival, was cheering him on while examining the pipe to figure out if the seniors in her pottery class might be able to make one for him.”
Not all patients and providers are on board. Medical marijuana activist Steve Sarich wore a button to the hearing that said “No Patient Registry. We are NOT sex offenders.”
He’s worried law enforcement will use the registry to target, rather than avoid, patients.
Jordan Schrader: 360-786-1826 jordan.schrader@thenewstribune.com blog.thenewstribune.com/politics
http://www.thenewstribune.com/2011/01/21/1510907/medical-pot-debated.html
Published: 01/21/1112:05 am
http://www.thenewstribune.com/2011/01/21/1510907/medical-pot-debated.html
The voter-approved medical-marijuana law has so many pitfalls for patients, even a couple of pillars of the Tacoma community see something to fear in it.
“Picture this: Local minister and deputy mayor arrested for having medical marijuana in their possession,” Lauren Walker said as she testified to state lawmakers Thursday on a proposed overhaul of the law.
Walker was describing her husband, the Rev. Marcus Walker, and herself, a Tacoma city councilwoman. Drawn into the strange world of medicinal cannabis just two weeks ago as part of her husband’s cancer treatment, she’s speaking up in Olympia in support of more protections from arrest for legitimate patients.
A proposal that would create those protections, and legalize the marijuana dispensaries that have cropped up in what advocates see as a gray area in the law, has broad bipartisan support in the state Senate.
But it could stumble on opposition that has been quietly building among key law enforcement officials. The Washington Association of Prosecuting Attorneys put forward an alternative proposal Thursday that seeks to avoid what Pierce County Prosecutor Mark Lindquist calls “the Starbucks approach” to the proliferation of medicinal marijuana.
REGULATING MARIJUANA
Under the 1998 ballot measure, patients can grow marijuana for their own use or designate a provider to grow on their behalf, as long as providers only serve one patient at a time.
Entrepreneurs have interpreted that to mean they can serve one patient after another in retail-style dispensaries.
Enforcement of the law has been uneven. The Tacoma City Council in October decided to suspend the city’s attempt to shut down eight dispensaries until the Legislature could clarify the law.
The council is looking to a bill authored by Sen. Jeanne Kohl-Welles of Seattle, which would license dispensaries and producers. Alternatively, up to 25 patients could band together and grow up to 99 plants in a so-called collective garden.
Today, patients have a legal defense against prosecution, but advocates say that hasn’t stopped police from harassing and arresting legitimate patients. The bill would head off arrests in a couple of ways. It would set up a voluntary registry of patients that law enforcement could access. It would give arrest protection to patients with a valid order from a medical provider and up to 24 ounces of marijuana or 15 plants.
Patients would also get protections from discrimination in employment and housing.
Kohl-Welles said bringing regulation to medical marijuana would end an underground system that has encouraged criminal activity.
“We’ve had shootouts, we’ve had armed robbery, burglary. We can’t have that going on. We need a regulated system,” she said.
PROSECUTORS, SHERIFFS OPPOSE
Lindquist agreed changes are needed but said the proposal takes the wrong approach.
“The bill as a whole seems to be more focused on creating a medical-marijuana industry than focused on providing medical marijuana,” he said. “We want to keep the focus on providing medical marijuana, because that’s what the voters passed.”
Prosecutors joined in the call for a registry and are seeking more limited forms of collective growing and arrest protection.
But they don’t want dispensaries legalized. In their proposal, a designated provider would be banned from serving multiple patients in the same 15-day period, a rule that is also in Kohl-Welles’ bill but would not apply to dispensaries.
The Washington Association of Sheriffs and Police Chiefs supports the prosecutors’ proposal, Lindquist said. Association director Don Pierce didn’t return phone calls Thursday.
The opposition from law enforcement groups could be a major hurdle. But the bill also has strong support, at least from the health committee where it sits now.
Chairwoman Karen Keiser, D-Kent, and a majority of the committee have signed on as co-sponsors. It’s backed by Democrats such as Kohl-Welles and Republicans such as Sen. Jerome Delvin of Richland.
The committee heard a long parade of mostly supportive testimony from the public, led off by Walker, who painted a picture of medical marijuana users as normal folks mostly unfamiliar with marijuana.
“It was very minimal,” she said of her previous pot exposure. “A joint was passed around a party when I was around 16, and then my Marxist relatives in northern Vermont offered marijuana cookies to my husband and me in the early 1980s. My husband threw up for three hours afterward.”
But after her husband’s treatment for melanoma left him with pain and complete loss of appetite, she said, they decided they would try anything. After a pickup at a downtown dispensary, the couple went to a family reunion and asked the young people in the room to help him figure out how to smoke it.
“His 87-year-old mother, desperate for her son’s survival, was cheering him on while examining the pipe to figure out if the seniors in her pottery class might be able to make one for him.”
Not all patients and providers are on board. Medical marijuana activist Steve Sarich wore a button to the hearing that said “No Patient Registry. We are NOT sex offenders.”
He’s worried law enforcement will use the registry to target, rather than avoid, patients.
Jordan Schrader: 360-786-1826 jordan.schrader@thenewstribune.com blog.thenewstribune.com/politics
http://www.thenewstribune.com/2011/01/21/1510907/medical-pot-debated.html
Tuesday, January 18, 2011
Case Law Updates Dec. 27, 2010-Jan. 7, 2011
WASHINGTON STATE SUPREME COURT
Bail Jump: Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of a the time of the failure to appear.
State v. Council, ___ Wn.2d___ (No 83654-0)(Dec. 30, 2010)
Facts: Mr. Council was charged with felony harassment when he failed to appear for a pre-trial hearing. He was arrested 4 months later, and the State added a charges of bail jumping and malicious harassment. The bail jumping charge was severed for trial. He was found not guilty of felony harassment and malicious harassment but convicted of misdemeanor harassment. A second jury subsequently found him guilty of bail jumping. The trial court classified the bail jumping as a class C felony because he failed to appear at a time when he was charged with a felony. On appeal he argued the bail jump statute was ambiguous.
Held: The statue is not ambiguous. Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of.
Assault 3/Sufficiency: The floor is not an instrument or thing likely to produce bodily harm for purpose of the assault 3 statute when not used proactively to injure the victim.
State v. Marohl___ Wn.2d___ (No 83570-5)(Dec. 30, 2010)
Facts: Mr. Marohl was charged with Assault 2 and in the alternative Assault 3, stemming from a fight in a bar. Mr. Marohl put another patron, Mr. Peterson, in a choke hold, and either took him to the ground or Mr. Peterson fell. Mr. Peterson lost consciousness and his prosthetic arm broke off at the elbow. The prosecutor argued that the floor was “an instrument or thing likely to produce bodily harm” for purpose of the assault 3 statute. Mr. Marohl was convicted of assault 3 and appealed arguing that there was insufficient evidence that he used an instrument or a thing when he caused bodily harm.
Held: Where a defendant causes a victim to impact the floor, but does not proactively use the floor to injure the victim, the defendant has not used the floor like a weapon. The floor, under the circumstances of this case, is not included within the meaning of “instrument or thing” because it was not likely to produce harm and was not used like a weapon.
Death Penalty: Solitary Confinement at the IMU does not violate ex post facto. Good behavior by death row inmate does not create a liberty interest in a special housing unit or the attendant privileges.
In Re PRP of Gentry, ___ Wn.2d___ (No 84039-3)(Dec. 30, 2010)
Facts: Mr. Gentry was convicted of aggravated murder and sentenced to death in 1991. He resides at the Intensive Management Unit (IMU) of the Washington State Penitentiary. He challenged his conditions of confinement, claiming that solitary confinement violates ex post facto prohibitions. Death row inmates spend the first 12 months at the IMU. With good behavior, they were able to earn privileges and move to the special housing unit (SHU). Mr. Gentry had been housed in the SHU, enjoying additional privileges. In December 2008, due to state budget constraints, he was transferred back to the IMU where he was confined to his cell 23 hours a day and denied the privileges he had earned the SHU.
Held: Solitary confinement was contemplated by state law at the time of Mr. Gentry’s crime, thus there is no ex post facto violation. DOC has been given broad discretion over conditions of inmate housing. Participation in a good behavior program does not create a liberty interest in special housing and related privileges.
WASHINGTON STATE COURT OF APPEALS
Sex crimes: Statements to sexual deviancy therapist are not privileged when they concern allegations of child sexual abuse.
State v. Hyder, ___Wn.App. ___ (No 37267-3)(Jan. 4, 2011)
Facts: Mr. Hyder was charged with multiple counts of child rape and child molestation involving two of his daughters. Prior to charging, he sought treatment from a sexual deviancy therapist. After Mr. Hyder was charged and prior to trial the attorneys agreed to review the CPS records, rather than have the court review them in camera. In the review of the records, they discovered a report by his therapist to CPS containing Mr. Hyder’s admissions regarding the sexual abuse. Police served a search warrant on the therapist for all the treatment records. The therapist and her forensic evaluator were called as witnesses at Mr. Hyder’s trial. Mr. Hyder’s moved in limine to prohibit their testimony, but was denied. On appeal, he asserted that the State’s use of a search warrant was improper since there are other procedures for seeking medical records which require notice to a patient in advance. Mr. Hyder also asserted that the records should have been reviewed in camera by the court, rather than the attorneys.
Held: The trial court did not abuse its discretion when it permitted the therapist to testify concerning Hyder’s admissions of abuse. The mandatory reporting laws trump the therapist patient privilege. The State’s use of a search warrant to obtain the medical records was not an abuse of process. The appellate court noted that although the attorneys agreed to review the records, they should have been viewed in camera by the court. The error was invited error and as such the issue was waived by Mr. Hyder.
Wildlife Trafficking: RCW 77.15.260 does not permit value aggregation of pieces of contraband.
State v. Yon, ___Wn.App. ___ (No 28774-2)(Dec 28, 2010)
Facts: Mr. Yon was charged with and convicted of wildlife trafficking in the first degree for purchasing four black bear gall bladders for $200.00 each. RCW 77.15.260 defines first degree wildlife trafficking as a C felony, and requires the value of the trafficked goods to exceed $250.00. Wildlife trafficking in the second degree is a misdemeanor. RCW 77.15.030 says that trafficking of big game, each big game animal should be charged as a separate offense. Mr. Yon argued it was improper to aggregate the value of the bear gall bladders to satisfy the elements of first degree wildlife trafficking.
Held: The statute intends for each piece of contraband to be charged separately and does not permit aggregation of value of pieces of contraband.
RALJ Appeal: The Superior Court exceeds the scope of review when it considers an issue not raised at the trial level.
State v. Rosalez___Wn.App. ___ (No 28253-8)(Dec 28, 2010)
Facts: Mr. Rosalez was charged and convicted of DUI. At his trial, he moved to suppress the breath test, based on the irregularities and false certifications in the crime lab during the tenure of Ann Marie Gordon. He argued due process violation, improper foundation, and challenged the evidence under ER 702 and 703. Mr. Rosalez did not expressly move to suppress the breath test under ER 403.
The trial court admitted the breath test, holding that the crime lab irregularities went to the weight of the evidence and not the admissibility. He was convicted at trial and appealed to Superior Court. The Superior Court reversed, holding that the breath test should have been suppressed, based on a due process violation of the right to a fair trial and on the failure to follow the protocols of RCW 46.61.506. The Superior Court also found that the trial court erred when it did not exercise discretion under ER 403, by failing to weigh the prejudicial value of the misconduct against the probative value of the breath test. The appellate court limited review in this case to whether the Superior Court exceeded the scope of review by considering the ER 403 issue.
Held: The Superior Court exceeded the scope of review when it held that the trial court erred for failure to exercise discretion ER 403, which was not argued at the trial level.
Bail Jump: Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of a the time of the failure to appear.
State v. Council, ___ Wn.2d___ (No 83654-0)(Dec. 30, 2010)
Facts: Mr. Council was charged with felony harassment when he failed to appear for a pre-trial hearing. He was arrested 4 months later, and the State added a charges of bail jumping and malicious harassment. The bail jumping charge was severed for trial. He was found not guilty of felony harassment and malicious harassment but convicted of misdemeanor harassment. A second jury subsequently found him guilty of bail jumping. The trial court classified the bail jumping as a class C felony because he failed to appear at a time when he was charged with a felony. On appeal he argued the bail jump statute was ambiguous.
Held: The statue is not ambiguous. Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of.
Assault 3/Sufficiency: The floor is not an instrument or thing likely to produce bodily harm for purpose of the assault 3 statute when not used proactively to injure the victim.
State v. Marohl___ Wn.2d___ (No 83570-5)(Dec. 30, 2010)
Facts: Mr. Marohl was charged with Assault 2 and in the alternative Assault 3, stemming from a fight in a bar. Mr. Marohl put another patron, Mr. Peterson, in a choke hold, and either took him to the ground or Mr. Peterson fell. Mr. Peterson lost consciousness and his prosthetic arm broke off at the elbow. The prosecutor argued that the floor was “an instrument or thing likely to produce bodily harm” for purpose of the assault 3 statute. Mr. Marohl was convicted of assault 3 and appealed arguing that there was insufficient evidence that he used an instrument or a thing when he caused bodily harm.
Held: Where a defendant causes a victim to impact the floor, but does not proactively use the floor to injure the victim, the defendant has not used the floor like a weapon. The floor, under the circumstances of this case, is not included within the meaning of “instrument or thing” because it was not likely to produce harm and was not used like a weapon.
Death Penalty: Solitary Confinement at the IMU does not violate ex post facto. Good behavior by death row inmate does not create a liberty interest in a special housing unit or the attendant privileges.
In Re PRP of Gentry, ___ Wn.2d___ (No 84039-3)(Dec. 30, 2010)
Facts: Mr. Gentry was convicted of aggravated murder and sentenced to death in 1991. He resides at the Intensive Management Unit (IMU) of the Washington State Penitentiary. He challenged his conditions of confinement, claiming that solitary confinement violates ex post facto prohibitions. Death row inmates spend the first 12 months at the IMU. With good behavior, they were able to earn privileges and move to the special housing unit (SHU). Mr. Gentry had been housed in the SHU, enjoying additional privileges. In December 2008, due to state budget constraints, he was transferred back to the IMU where he was confined to his cell 23 hours a day and denied the privileges he had earned the SHU.
Held: Solitary confinement was contemplated by state law at the time of Mr. Gentry’s crime, thus there is no ex post facto violation. DOC has been given broad discretion over conditions of inmate housing. Participation in a good behavior program does not create a liberty interest in special housing and related privileges.
WASHINGTON STATE COURT OF APPEALS
Sex crimes: Statements to sexual deviancy therapist are not privileged when they concern allegations of child sexual abuse.
State v. Hyder, ___Wn.App. ___ (No 37267-3)(Jan. 4, 2011)
Facts: Mr. Hyder was charged with multiple counts of child rape and child molestation involving two of his daughters. Prior to charging, he sought treatment from a sexual deviancy therapist. After Mr. Hyder was charged and prior to trial the attorneys agreed to review the CPS records, rather than have the court review them in camera. In the review of the records, they discovered a report by his therapist to CPS containing Mr. Hyder’s admissions regarding the sexual abuse. Police served a search warrant on the therapist for all the treatment records. The therapist and her forensic evaluator were called as witnesses at Mr. Hyder’s trial. Mr. Hyder’s moved in limine to prohibit their testimony, but was denied. On appeal, he asserted that the State’s use of a search warrant was improper since there are other procedures for seeking medical records which require notice to a patient in advance. Mr. Hyder also asserted that the records should have been reviewed in camera by the court, rather than the attorneys.
Held: The trial court did not abuse its discretion when it permitted the therapist to testify concerning Hyder’s admissions of abuse. The mandatory reporting laws trump the therapist patient privilege. The State’s use of a search warrant to obtain the medical records was not an abuse of process. The appellate court noted that although the attorneys agreed to review the records, they should have been viewed in camera by the court. The error was invited error and as such the issue was waived by Mr. Hyder.
Wildlife Trafficking: RCW 77.15.260 does not permit value aggregation of pieces of contraband.
State v. Yon, ___Wn.App. ___ (No 28774-2)(Dec 28, 2010)
Facts: Mr. Yon was charged with and convicted of wildlife trafficking in the first degree for purchasing four black bear gall bladders for $200.00 each. RCW 77.15.260 defines first degree wildlife trafficking as a C felony, and requires the value of the trafficked goods to exceed $250.00. Wildlife trafficking in the second degree is a misdemeanor. RCW 77.15.030 says that trafficking of big game, each big game animal should be charged as a separate offense. Mr. Yon argued it was improper to aggregate the value of the bear gall bladders to satisfy the elements of first degree wildlife trafficking.
Held: The statute intends for each piece of contraband to be charged separately and does not permit aggregation of value of pieces of contraband.
RALJ Appeal: The Superior Court exceeds the scope of review when it considers an issue not raised at the trial level.
State v. Rosalez___Wn.App. ___ (No 28253-8)(Dec 28, 2010)
Facts: Mr. Rosalez was charged and convicted of DUI. At his trial, he moved to suppress the breath test, based on the irregularities and false certifications in the crime lab during the tenure of Ann Marie Gordon. He argued due process violation, improper foundation, and challenged the evidence under ER 702 and 703. Mr. Rosalez did not expressly move to suppress the breath test under ER 403.
The trial court admitted the breath test, holding that the crime lab irregularities went to the weight of the evidence and not the admissibility. He was convicted at trial and appealed to Superior Court. The Superior Court reversed, holding that the breath test should have been suppressed, based on a due process violation of the right to a fair trial and on the failure to follow the protocols of RCW 46.61.506. The Superior Court also found that the trial court erred when it did not exercise discretion under ER 403, by failing to weigh the prejudicial value of the misconduct against the probative value of the breath test. The appellate court limited review in this case to whether the Superior Court exceeded the scope of review by considering the ER 403 issue.
Held: The Superior Court exceeded the scope of review when it held that the trial court erred for failure to exercise discretion ER 403, which was not argued at the trial level.
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