Case Law Update 11-18-11

The following criminal cases of note were decided this week:


Washington State Law


Washington State Supreme Court


Personal Restraint of Coats:   The court reviewed a challenge to Mr. Coats’ judgment and sentence that was brought fourteen years after the fact when Mr. Coats claimed that the document erroneously states that the maximum sentence for the crime committed, conspiracy to commit murder, was life in prison. The Court found that there was in fact an error in the judgment and sentence, however, the judgment was nevertheless valid on its face and the sentencing court did not exceed its authority in sentencing Mr. Coats to a standard range 20-year sentence.  The Court concluded that not every defect renders a judgment and sentence invalid.  Instead, only errors that result from a judge exceeding the judge’s authority will render a judgment and sentence facially invalid. Further, the court cautioned, the “not valid on its face” limitation of RCW 10.73.090 is not a device to make an end run around the one-year time bar for most errors, including errors at trial that affect a fair trial.


In a concurrence, Chief Justice Madsen agreed with the majority that in order to avoid the once year time bar on collateral attack, the claimed defect must be a defect in the judgment and sentence and it must appear on the face of the judgment and sentence itself.  The Chief Justice wrote separately, however, to bemoan the fact that the majority did nothing to resolve the fact that the Court has in the past relied on ad hoc determinations of the “valid on its face” language of the statute and the instant opinion did not provide a fixed meaning for this language.  The Chief Justice noted that “[e]xplaining only how the statute has played out in prior cases, as the majority does, is of little use in providing guidance as to how the statute should be applied across a range of circumstances.  This perpetuates a situation where a flood of personal restraint petitions must be considered in detail despite the heavy burden this places on the courts and the obvious purposes of the statute to restrict and manage the flow of personal restraint petitions.”  Additionally, the concurrence raised concerns with the majority opinion over a claimed conflation of the issue whether the one-year time bar of the statute applies with the issue of whether a petitioner has established requisite prejudice entitling the petitioner to relief from restraint.  Equally serious, the concurrence observed, the majority seems to think that RCW 10.73.090(1)substantively governs whether a petitioner is entitled to relief.  The statute is, of course, a procedural bar, not a substantive bar.  Finally, the concurrence argued, the majority fails to provide any meaningful discussion of the petitioner’s main contention — that once the one-year time bar of RCW 10.73.090(1) is avoided as to one claim, it is automatically avoided as to all claims asserted by the petitioner.  The Chief Justice also took Justice Stephens’ concurrence to task for, like the majority, also failing to adequately explain what RCW 10.73.090(1) means.


In a second concurrence, Justice Stephens agreed with the outcome of the majority opinion but wrote separately to clarify the type of showing a petitioner must make to establish that a judgment and sentence is invalid.  Justice Stephens expressed the opinion that Supreme Court precedent does not require a showing of harm or prejudice to the petitioner in order to demonstrate a facial invalidity in the first instance.  Instead, the concurrence argued, the prejudice inquiry comes later, only after the petitioner establishes that the judgment and sentence is invalid.  Justice Stephens also wrote separately to explain the remedy that follows from an invalid judgment and sentence, arguing that the remedy is correction of the error that renders the judgment and sentence facially invalid, not opening the door to other time-barred claims.


Division Two Court of Appeals


State v. Wallmuller:  In this partially published opinion, the Court affirmed Mr. Wallmuller’s convictions for three counts of first degree child rape and two counts of sexual exploitation of a minor.  The Court rejected Mr. Wallmuller’s argument that the trial court violated his right to be free from double jeopardy by failing to instruct the jury that it had to find that a separate and distinct act supported each of these counts.  Turning to the Washington Supreme Court’s recent decision in Mutch, the Court explained that it must look at the entire trial record when reviewing this type of double jeopardy claim.  The Court held that a double jeopardy violation occurs if it was not “manifestly apparent to the jury” from the evidence, arguments, and instructions that “the State [was] not seeking to impose multiple punishments for the same offense and that each count was based on a separate act.”  The Court concluded that, based on the testimony and the closing arguments, “it was manifestly apparent to the jury that each count represented a separate act and that it could not convict Mr. Wallmuller on a specific count of rape or exploitation without unanimously agreeing that he had committed the act that the State identified in closing argument as that count’s underlying act.



Division Three Court of Appeals


State v. Daily:  The Court affirmed Ms. Daily’s DUI conviction, finding that based on the facts of this case, where a witness had observed Ms. Daily driving and Ms. Daily had likewise admitted to driving, there could not be a conclusion that the lesser included offense of physical control while under the influence was committed to the exclusion of DUI.  Therefore, the Court held, the safely off the road affirmative defense to the lesser-included offense was inapplicable in this case, as that defense is applicable only to the crime of physical control, not to DUI.



Federal Law


Ninth Circuit Court of Appeals


Rhoades v. Reinke:  The Court affirmed the district Court’s denial of Mr. Rhoades’ emergency motion for preliminary injunction or stay of execution.  The Court agreed with the district court ruling that the Idaho Department of Correction (“IDOC”) has provided appropriate safeguards to ensure that there is not a substantial risk of serious harm to Mr. Rhoades in the form of severe pain during the administration of the drugs used in Idaho’s three-drug lethal injection protocol; that the safeguards are substantially similar to those contained in execution protocols approved by the Supreme Court and by the Ninth Circuit; that the IDOC is not required to implement a different, one-drug protocol in this execution; that Rhoades will suffer irreparable harm in the absence of preliminary relief; that the equities of the case do not require a different result; and that the public interest favors denial of the request for a stay of the execution.  Further, the Court concluded that Mr. Rhoades has not shown that he is likely to succeed in his challenge to the protocol and was therefore not entitled to the stay.


Rhoades v. Blades:   The Court denied Mr. Rhoades’ Motion for a Stay of Execution, finding that Mr. Rhoades’ counsel were not unconstitutionally ineffective for failing to have Mr. Rhoades tested for brain damage when litigating his claim that trial counsel had ineffectively represented Mr. Rhoades during the penalty phase of his two capital trials. Mr. Rhoades acknowledged that “courts have uniformly rejected the claim that there is a constitutional right to effective assistance of counsel in post-conviction proceedings,” and that the only way he could be entitled to file a successive petition is if the Supreme Court holds that there is such a right in the case of Martinez v. Ryan, currently pending a written decision.  The motion was filed less than 48 hours prior to Mr. Rhoades’ execution, and the Court found that there was not a substantial likelihood of success on the merits, and that Mr. Rhoades unnecessarily delayed bringing the claim for over five months after the Supreme Court granted certiorari in Martinez.


Ortiz v. Uribe: The Court affirmed the district court’s denial of Mr. Ortiz’ petition for a writ of habeas corpus claiming a violation of his due process rights under the Fifth and Fourteenth Amendments based on the admission of his confession, which he asserts was not voluntary.  The Court found that the detective who administered a polygraph to Mr. Ortiz spoke to him in empathic and maternal tones, but that the comments did not rise to the level of psychological manipulation sufficient to overbear Mr. Ortiz’s will and was not coercive.  Further, the Court found that the detective’s statements that may have suggested to Mr. Ortiz that she was not a law enforcement officer were not reasonably likely to deceive Mr. Ortiz when the polygraph was arranged by detectives and conducted at the sheriff’s headquarters and, even if Mr. Ortiz was deceived, the detective’s actions were within the permissible scope of tactics necessary to secure a lawful confession by the police.  Finally, the Court found that the detective’s actions in reminding Mr. Ortiz of his obligation to his family to tell the truth and that his children were counting on him to do the right thing were permissible psychological appeals to his conscience that, although possibly making him more emotional during the interview, do not demonstrate that his will was overborne.





Governor Gregoire appoints Supreme Court Justice:  On November 15, 2011, Governor Chris Gregoire appointed King County Superior Judge Steven Gonzalez to fill the seat of Justice Gerry Alexander, who will leave the bench at the end of the year.  Judge Gonzalez has served on the King County District Court since March 2002, and before that worked as an Assistant United States Attorney for the Western District of Washington.  Judge Gonzalez chairs the Washington State Access to Justice Board, a position to which he was appointed by former Chief Justice Alexander. He co-chairs the Race and Criminal Justice System Task Force. From 2006 to 2010 he co-chaired the Court Security Committee for the State of Washington. The Washington State Bar Association recently presented the 2011 Outstanding Judge of the Year Award to Judge Gonzalez, along with Judge Mary Yu, citing their work on promoting equal access to the courts, including developing helpful materials for self-represented persons.



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