Case Law Update 11-25-11

From the Desk of Dena Alo-Colbeck

The following criminal cases of note were decided this week:

Washington State Law

Division One Court of Appeals

State v. Duncalf:  The Court upheld the jury’s general and special verdicts, finding that the two could be harmonized.  The Court reasoned that the special verdict, a finding of an aggravating circumstance that authorized the imposition of an exceptional sentence, could be harmonized with the general verdict convicting Mr. Duncalf of a crime inferior in degree to the highest charged offense.   Further, the Court found that the absence of a jury instruction defining that aggravating circumstance is not a constitutional error that could be raised for the first time on appeal.  The Court dismissed Mr. Duncalf’s argument that injuries which do not rise to the level of “great bodily harm” cannot be the basis for an exceptional sentence for the crime of assault in the second degree, the crime for which Mr. Duncalf was convicted.  The Court concluded that while the jury must find an aggravating factor proven to impose an exception sentence, the jury is not required to find the definition of a term within that aggravating sentence.


In a concurrence, Judge Cox agreed with the majority that Mr. Duncalf could not challenge for the first time on appeal the trial court’s decision not to instruct the jury on the definition of “substantially exceeds.”  Judge Cox noted that the Supreme Court has recently defined this term in State v. Stubbs, and wrote separately to express his belief  that the instruction not given in this case should be required in future cases.  Specifically, the concurrence opined that the jury should have been required to find that the victim’s injuries met the definition of “great bodily harm” in order to have substantially exceeded the level of bodily harm, “substantial bodily harm,” required for second degree assault.


State v. Pappas:  The Court found that, if a jury finds by special verdict that the injuries sustained by a vehicular assault victim constitute bodily harm which substantially exceeds that necessary to satisfy the elements of the offense, the trial court may impose a sentence beyond the standard sentence range for that crime.  The Court disagreed with Mr. Pappas, who argued that the trial court erred as a matter of law by imposing an exceptional sentence based upon the severity of the victim’s injuries, finding that such injuries can be a basis for an exceptional sentence when the underlying crime is vehicular assault, contrary to Mr. Pappas’ assertions.  The Court concluded that the victim’s injuries were encompassed within the legislative definition of “great bodily harm” and the verdict authorizing the exceptional sentence was proper.


In a concurrence, Judge Cox agreed that Mr. Pappas cannot prevail in his appeal, but for the reasons stated in his concurrence to Duncalf, wrote separately to state his belief that an instruction defining “substantially exceed” should be required in future cases of this type where a jury is considering aggravating circumstances.


State v. O’Brien:  The Court overturned three of Mr. O’Brien’s four bail jumping convictions, finding that the bail jumping statute is ambiguous regarding the intended unit of prosecution on the facts of this case and reversal was mandated under the rule of lenity.  The Court reasoned that the statute clearly states the legislature’s intent to punish a person who has been released by court order and subsequently fails to appear or surrender as directed, but it provides no guidance regarding the unit of prosecution under the circumstances here, where Mr. O’Brien was released under multiple orders entered in different cases, each one requiring him to surrender on the same day and at the same time.  Therefore, the court concluded, the statute is ambiguous as to whether the legislature intended to punish the single failure to appear or the violations of multiple court orders.  The Court disagreed with Mr. O’Brien’s arguments that insufficient evidence supported his convictions, and found that he had not proven the uncontrollable circumstances affirmative defense, and thus failure to instruct the jury on this defense was not error.



Division Two Court of Appeals

State v. C.B.:  The Court found that RCW 10.77.120(1) provides statutory authority to involuntarily medicate a criminally ill individual in the custody of the Department of Social and Health Services.  The Court reasoned that the legislature’s command that the secretary of health “”provide adequate care and individualized treatment” to criminally insane individuals in state institutions constitutes statutory authorization for  the secretary to administer medication involuntarily to criminally insane individuals who are under the secretary’s control.  The Court turned to the dictionary definition of “treatment,” noting that it included medication.


In a concurrence, Judge Van Deren wrote separately to point out that the legislative amendments to former RCW 10.77.110(1)created an ambiguity regarding the authority of the Washington State Department of Social and Health Services to medicate the criminally insane and those found not guilty by reason of insanity.  The concurrence pointed out that legislative intent with regard to involuntary medication of the criminally insane “is no longer as clear as it should be.”  Nevertheless, Judge Van Deren concurred in the result because of the “danger to self or others that a criminally insane person may pose, both as a matter of public and individual safety, and my refusal to believe or interpret the legislature’s actions as intending to allow such danger to go untreated by the Department if involuntary medication is the best treatment alternative for the individual.


State v. Kiliona-Garramone:  The Court reversed the trial court’s dismissal of charges against Nykol Kiliona-Garramone, James Francis Garramone, and Paula Ferrara (Defendants) for false verification of a welfare form.  The Court agreed with the State that the trial court erred in ruling that the information’s omission of the statutory word “matter” rendered it constitutionally insufficient to give Defendants notice of charges against them.  The Court reasoned that the error in the information was but a scrivener’s error that did not require reversal.  The Court found that the defendants were still placed on notice of the elements of the charge against them and that there was no evidence that due to the omission the defendants were not in fact aware of the charge.  Further, the Court found that the defendants suffered no prejudice as a result of the omission.


In a dissent, Judge Penoyar argued that the trial court correctly dismissed the case.  The dissent reasoned that the problem with the information here was that it accused the defendants of providing information which they did not believe to be true “as to every material” instead of “as to every material matter.”  In this case, the dissent observed, “matter” matters because it clarifies whether the charge is that the defendants misrepresented facts that were important to the defendants’ applications or whether the charge is simply that the defendants misrepresented anything at all in the application process. The dissent agreed with the trial court that nothing in the balance of the information informs the defendants that only material false statements were alleged.



Ninth Circuit Court of Appeals

United States v. Tadio:  The Court affirmed the district court’s decision to reduce Mr. Tadio’s sentence by 24 months under Federal Rule of Criminal Procedure 35(b), which authorizes such a reduction “if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.”  The Court held that the district court appropriately considered factors other than Mr. Tadio’s substantial assistance in determining the amount of a Rule 35(b) sentence reduction, in order to ensure that the sentence ultimately imposed accords with the purposes of sentencing that Congress has articulated.  Thus, the district court’s action in considering Mr. Tadio’s offense conduct and criminal history was appropriate in this case.  The Court disagreed with Mr. Tadio’s argument that the district court erred in considering these factors and placed too low a value on the assistance he had provided.  As the district court applied the appropriate legal standard under Rule 35(b), the Ninth Circuit lacked jurisdiction to review the district court’s exercise of discretion in choosing the length of the sentence reduction. The Court thus affirmed the district court’s consideration of non-assistance factors and dismissed Mr. Tadio’s challenge to the length of the sentence reduction.


United States v. Rudd:  The Court vacated a residency restriction imposed by the district court as a special condition of supervised release, following Mr. Rudd’s conviction and sentencing for one count of engaging in illicit sexual conduct in a foreign country.  The special condition prohibited Mr. Rudd from residing “within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18.”  The Court found that, because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error. The case was remanded for an explanation or reconsideration of the 2,000 foot residency restriction.  The Court acknowledged that the “nature and circumstances of Rudd’s offenses demonstrate that Rudd poses a serious danger to children. It is evident that a condition minimizing his temptation and ability to prey upon children is supported by the record.”  However, the Court reasoned that it was not evidence why forbidding residence within direct view of places primarily used by juveniles was not sufficient to deter further conduct or how the 2,000 foot requirement would further risk the risk of re-offense upon Mr. Rudd’s release from prison at or near age seventy-three. The court further observed that such a residency restriction could subject Mr. Rudd to a state of “constant eviction,” because the prohibited locations could potentially move or open in new places. The Court noted that special conditions of supervised release must be “reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender, and involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release,” finding that there was nothing in the record to demonstrate the substantive reasonableness of the restrictions imposed in this case.


State v. Beltran Valdez:  The Court concluded that it lacked jurisdiction to hear Mr. Beltran Valdez’ interlocutory appeal from an order denying his request for new counsel and permitting him to proceed pro se.  The Court reasoned that in order to qualify for interlocutory review, an order “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” The court found that the third element was not met, as an order denying the appointment of replacement counsel can be effectively reviewed on appeal after trial. Post-conviction review of asserted Sixth Amendment deprivations such as denial of a right to represent oneself, denial of appointment of counsel, or denial of counsel’s request to be replaced because of a conflict of interest, is fully effective.




New posters in Washington Courtrooms Encourage Jurors to “Focus on the Courtroom”:   The Washington Pattern Jury Instructions Committee has created a new poster designed to remind jurors of their critical role in assuring a fair trial and the importance of refraining from conducting online research or commenting on a case on social media sites while the trial is ongoing.  The poster cautions jurors to avoid outside information about the case from the internet or other sources, and not to text, e-mail, blog, or discuss the case with family or friends.



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