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Saturday, February 12, 2011
Tuesday, February 8, 2011
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.
Monday, December 27, 2010
CASE LAW UPDATE - Week ending 12-24-10
The following criminal cases of note were decided this week:
Washington State Law
Washington State Supreme Court:
State v. Wilson: The Court held that anticipatory offenses included in an offender score calculation under RCW 9.94A.525(4) must themselves be felonies in order to be calculated as such as part of the offender score calculation. Here, the trial court had erroneously included as a felony what was actually a conviction for a gross misdemeanor. In upholding the decision, the Court of Appeals reasoned that the anticipatory offense would have been a felony if completed. The Supreme Court found this to be in error and held that such a mistake is a legal mistake and therefore the petitioner is entitled to be resentenced under the correct offender score. http://www.courts.wa.gov/opinions/pdf/837970.opn.pdf
Division One Court of Appeals:
State v. Burns: The Court held that, when the State failed to hold a restitution hearing within 180 days of sentencing as required by the statute to determine the amount of restitution to be paid by Mr. Burns as a result of certain uncharged crimes, the trial court did not have statutory authority to determine or modify the amount of restitution after the expiration of the 180 day time period allowed for restitution to be set under RCW 9.94A.753(1). The Court reversed the restitution order. http://www.courts.wa.gov/opinions/pdf/63768-1.pub.doc.pdf
Division Two Court of Appeals:
In Re Detention of Alsteen: The Court affirmed a jury verdict finding that Mr. Alsteen is a sexually violent predator who should be civilly committed under the "Sexually Violent Predator Act," (SVPA) chapter 71.09 RCW. The Court held that the jury instructions were an accurate statement of the law and permitted the parties to argue their respective theories of the case to the jury, and did not prejudice Mr. Alsteen by improperly focusing on past crimes to which he had stipulated. Because the instructional challenge failed, the Court affirmed Mr. Alsteen’s commitment as a sexually violent predator. http://www.courts.wa.gov/opinions/pdf/37140-5.10.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
Pulido v. Hedgpeth: The Court found that erroneous jury instructions in Mr. Pulido’s state murder trial were not prejudicial as a matter of federal Constitutional law. The Court disagreed with Mr. Pulido’s contentions that the jury instructions on aiding and abetting felony murder and robbery, read together, impermissibly allowed him to be convicted of felony murder even if he did not form the intent to aid and to abet the robbery until after the murder. The Court found that despite a typographical error in the special circumstance instruction, which used the word “or” instead of “and” between its two prongs, thus enlarging the scope of activity that would qualify as robbery felony murder under the special circumstance. However, the court concluded that the instruction did not have substantial or injurious effect or influence in determining the jury’s verdict.
Judge Thomas dissented, arguing that the law was explained improperly in this case, and it could not be reasonably concluded that the error did not substantially and injuriously affect the verdict. The dissent reasoned that the instructions allowed for a conviction for felony-murder and a finding of special circumstance robbery-murder even if Mr. Pulido became a knowing participant only after the robbery and shooting were completed. The record left the dissent with “grave doubt” as to whether the erroneous instructions had a substantial and injurious effect on the jury’s verdict. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/21/05-15916.pdf
United States v. Alvarez-Perez: The Court found that Mr. Alvarez-Perez was prosecuted for being a deported alien found in the United States in violation of the Speedy Trial Act (STA). The Court found that Mr. Alvarez-Perez’ trial was held outside the permitted 70-day period. However, because the government exceeded speedy trial by just two days, Mr. Alvarez-Perez was accused of a serious offense, there was no showing of governmental bad faith, and no showing that Mr. Alvarez-Perez would be prejudiced by a re-trial, the Court dismissed the action without prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/22/09-50334.pdf
Washington State Law
Washington State Supreme Court:
State v. Wilson: The Court held that anticipatory offenses included in an offender score calculation under RCW 9.94A.525(4) must themselves be felonies in order to be calculated as such as part of the offender score calculation. Here, the trial court had erroneously included as a felony what was actually a conviction for a gross misdemeanor. In upholding the decision, the Court of Appeals reasoned that the anticipatory offense would have been a felony if completed. The Supreme Court found this to be in error and held that such a mistake is a legal mistake and therefore the petitioner is entitled to be resentenced under the correct offender score. http://www.courts.wa.gov/opinions/pdf/837970.opn.pdf
Division One Court of Appeals:
State v. Burns: The Court held that, when the State failed to hold a restitution hearing within 180 days of sentencing as required by the statute to determine the amount of restitution to be paid by Mr. Burns as a result of certain uncharged crimes, the trial court did not have statutory authority to determine or modify the amount of restitution after the expiration of the 180 day time period allowed for restitution to be set under RCW 9.94A.753(1). The Court reversed the restitution order. http://www.courts.wa.gov/opinions/pdf/63768-1.pub.doc.pdf
Division Two Court of Appeals:
In Re Detention of Alsteen: The Court affirmed a jury verdict finding that Mr. Alsteen is a sexually violent predator who should be civilly committed under the "Sexually Violent Predator Act," (SVPA) chapter 71.09 RCW. The Court held that the jury instructions were an accurate statement of the law and permitted the parties to argue their respective theories of the case to the jury, and did not prejudice Mr. Alsteen by improperly focusing on past crimes to which he had stipulated. Because the instructional challenge failed, the Court affirmed Mr. Alsteen’s commitment as a sexually violent predator. http://www.courts.wa.gov/opinions/pdf/37140-5.10.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
Pulido v. Hedgpeth: The Court found that erroneous jury instructions in Mr. Pulido’s state murder trial were not prejudicial as a matter of federal Constitutional law. The Court disagreed with Mr. Pulido’s contentions that the jury instructions on aiding and abetting felony murder and robbery, read together, impermissibly allowed him to be convicted of felony murder even if he did not form the intent to aid and to abet the robbery until after the murder. The Court found that despite a typographical error in the special circumstance instruction, which used the word “or” instead of “and” between its two prongs, thus enlarging the scope of activity that would qualify as robbery felony murder under the special circumstance. However, the court concluded that the instruction did not have substantial or injurious effect or influence in determining the jury’s verdict.
Judge Thomas dissented, arguing that the law was explained improperly in this case, and it could not be reasonably concluded that the error did not substantially and injuriously affect the verdict. The dissent reasoned that the instructions allowed for a conviction for felony-murder and a finding of special circumstance robbery-murder even if Mr. Pulido became a knowing participant only after the robbery and shooting were completed. The record left the dissent with “grave doubt” as to whether the erroneous instructions had a substantial and injurious effect on the jury’s verdict. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/21/05-15916.pdf
United States v. Alvarez-Perez: The Court found that Mr. Alvarez-Perez was prosecuted for being a deported alien found in the United States in violation of the Speedy Trial Act (STA). The Court found that Mr. Alvarez-Perez’ trial was held outside the permitted 70-day period. However, because the government exceeded speedy trial by just two days, Mr. Alvarez-Perez was accused of a serious offense, there was no showing of governmental bad faith, and no showing that Mr. Alvarez-Perez would be prejudiced by a re-trial, the Court dismissed the action without prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/22/09-50334.pdf
Monday, December 20, 2010
Washington Case Law Update Dec. 20, 2010
The following criminal cases of note were decided this week:
Washington State Law
Division One Court of Appeals:
State v. Deer: The Court dismissed without prejudice due to the trial court’s error in allowing the State to amend the information in this case after the State had rested its case. The original information in this case had alleged that Ms. Deer had had “sexual contact” with a minor rather than “sexual intercourse,” thus alleging the elements of child molestation rather than child rape. The Court further found that the trial court erred in rejecting a proposed jury instruction which would have required the State to prove beyond a reasonable doubt that Ms. Deer had committed a volitional act, and instead instructed the jury that Ms. Deer had the burden of proving her defense, "that the child had intercourse with the defendant without the knowledge or consent of the defendant" by a preponderance of the evidence. In so doing, the Court ruled, the trial court relieved the State of its burden of providing the actus reas of the crime beyond a reasonable doubt. http://www.courts.wa.gov/opinions/pdf/63737-1.pub.doc.pdf
Division Three Court of Appeals:
State v. Stark: The Court reversed Ms. Stark’s convictions for first degree premeditated murder and conspiracy to commit first degree murder in the shooting death of her estranged husband, from whom she had endured years of abuse before finally escaping the marriage. The Court found that the trial court erred in giving an aggressor instruction, thus eliminating her defense of self-defense under the circumstances of this case that showed that Ms. Stark was hiding in the kitchen when Mr. Stark came over, and that he had charged toward her threatening to kill her when he was served by another person with a restraining order against him, and that Ms. Stark only shot him when he made a move toward a knife on the counter. The Court disagreed with the State’s contention that the restraining order was sufficient provocation for an aggressor instruction, finding that case law has established that spoken words are insufficient, and therefore written words would likewise not be sufficient. The Court further found that the to-convict instruction for the alleged conspiracy in this case failed to name the specific conspirators as alleged in the information, a discrepancy that must be addressed on remand. However, the court found that there were sufficient facts for a new trial, both on the murder and the conspiracy counts. http://www.courts.wa.gov/opinions/pdf/281418.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Newhoff: The Court upheld Mr. Newhoff’s conviction for felon in possession of a firearm, finding that there was a reasonable inference from the testimony showing that Mr. Newhoff was the burglar who was attempting to sell the firearm that he was in fact the person who found and stole it. As there was no clear error in the district court’s finding of fact in this regard, the Court affirmed the conviction. In so doing, the Court rejected Mr. Newhoff’s arguments that there was no eyewitness testimony demonstrating he took the pistol during the burglary, finding that the circumstantial evidence was sufficient. The Court also found that, though the district court’s failure to give an admonition to the jury that they were not to place undue weight on the officer’s testimony after it was read back to them during deliberations at the close of the trial was plain error; it did not affect Mr. Newhoff’s substantial rights and did not warrant reversal. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/16/09-30143.pdf
Roberts v. Marshall: The Court found that the district court did not abuse its discretion in denying Mr. Roberts an evidentiary hearing to determine whether his asserted mental incompetence warranted equitable tolling of the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996. The Court noted that the district court had access to extensive medical records that indicated Mr. Roberts’ relevant mental functions were either “good” or “within normal limits” during the time period for which he sought tolling of the statute of limitations, and that the district court’s conclusion that Mr. Roberts’ mental incompetency was not the cause of his untimeliness was proper, particularly considering that Mr. Roberts managed to file several petitions for post-conviction relief in state court presenting identical arguments to those presented in the federal court during the time for which Roberts seeks equitable tolling. The court found that Mr. Roberts did not carry his burden of establishing that he is entitled to equitable tolling, and his federal petition was therefore barred by AEDPA’s statute of limitations. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/13/08-55901.pdf
Washington State Law
Division One Court of Appeals:
State v. Deer: The Court dismissed without prejudice due to the trial court’s error in allowing the State to amend the information in this case after the State had rested its case. The original information in this case had alleged that Ms. Deer had had “sexual contact” with a minor rather than “sexual intercourse,” thus alleging the elements of child molestation rather than child rape. The Court further found that the trial court erred in rejecting a proposed jury instruction which would have required the State to prove beyond a reasonable doubt that Ms. Deer had committed a volitional act, and instead instructed the jury that Ms. Deer had the burden of proving her defense, "that the child had intercourse with the defendant without the knowledge or consent of the defendant" by a preponderance of the evidence. In so doing, the Court ruled, the trial court relieved the State of its burden of providing the actus reas of the crime beyond a reasonable doubt. http://www.courts.wa.gov/opinions/pdf/63737-1.pub.doc.pdf
Division Three Court of Appeals:
State v. Stark: The Court reversed Ms. Stark’s convictions for first degree premeditated murder and conspiracy to commit first degree murder in the shooting death of her estranged husband, from whom she had endured years of abuse before finally escaping the marriage. The Court found that the trial court erred in giving an aggressor instruction, thus eliminating her defense of self-defense under the circumstances of this case that showed that Ms. Stark was hiding in the kitchen when Mr. Stark came over, and that he had charged toward her threatening to kill her when he was served by another person with a restraining order against him, and that Ms. Stark only shot him when he made a move toward a knife on the counter. The Court disagreed with the State’s contention that the restraining order was sufficient provocation for an aggressor instruction, finding that case law has established that spoken words are insufficient, and therefore written words would likewise not be sufficient. The Court further found that the to-convict instruction for the alleged conspiracy in this case failed to name the specific conspirators as alleged in the information, a discrepancy that must be addressed on remand. However, the court found that there were sufficient facts for a new trial, both on the murder and the conspiracy counts. http://www.courts.wa.gov/opinions/pdf/281418.opn.doc.pdf
Federal Law
Ninth Circuit Court of Appeals:
United States v. Newhoff: The Court upheld Mr. Newhoff’s conviction for felon in possession of a firearm, finding that there was a reasonable inference from the testimony showing that Mr. Newhoff was the burglar who was attempting to sell the firearm that he was in fact the person who found and stole it. As there was no clear error in the district court’s finding of fact in this regard, the Court affirmed the conviction. In so doing, the Court rejected Mr. Newhoff’s arguments that there was no eyewitness testimony demonstrating he took the pistol during the burglary, finding that the circumstantial evidence was sufficient. The Court also found that, though the district court’s failure to give an admonition to the jury that they were not to place undue weight on the officer’s testimony after it was read back to them during deliberations at the close of the trial was plain error; it did not affect Mr. Newhoff’s substantial rights and did not warrant reversal. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/16/09-30143.pdf
Roberts v. Marshall: The Court found that the district court did not abuse its discretion in denying Mr. Roberts an evidentiary hearing to determine whether his asserted mental incompetence warranted equitable tolling of the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996. The Court noted that the district court had access to extensive medical records that indicated Mr. Roberts’ relevant mental functions were either “good” or “within normal limits” during the time period for which he sought tolling of the statute of limitations, and that the district court’s conclusion that Mr. Roberts’ mental incompetency was not the cause of his untimeliness was proper, particularly considering that Mr. Roberts managed to file several petitions for post-conviction relief in state court presenting identical arguments to those presented in the federal court during the time for which Roberts seeks equitable tolling. The court found that Mr. Roberts did not carry his burden of establishing that he is entitled to equitable tolling, and his federal petition was therefore barred by AEDPA’s statute of limitations. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/13/08-55901.pdf
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