Case Law Update November 2013

Washington State Law

Division One Court of Appeals

State v. Davis:  The Court agreed with Mr. Davis that kidnapping and assault charges brought against him after he repossessed a car by removing the owner at gunpoint merged into a single charge, and remanded for vacation of the assault charge.  The Court reasoned that assault with a deadly weapon can raise the crime of unlawful imprisonment to kidnapping in the second degree, and without proof in this case of the second degree assault charge, Mr. Davis could have been convicted only of unlawful imprisonment.

Division Two Court of Appeals

State v. Higgs:  The Court upheld Mr. Higgs’ conviction for unlawful possession of methamphetamine despite the fact that only trace amounts of the drug were found in his apartment, noting that there is no minimum amount required to prove an unlawful possession charge.  The Court further upheld Mr. Higgs’ remaining convictions for unlawful possession with intent to deliver or manufacture, unlawful delivery, and use of drug paraphernalia, finding (1) the warrant’ s portions supported by probable cause could be severed from the overbroad portions and therefore the trial court likely would have denied a motion to suppress the drug evidence seized under the valid portion of the warrant, and (2) Mr. Higgs could not show that the admission of the evidence seized under the invalid portion of the warrant prejudiced him.

State v. Mashek:  The Court found that the trial court in this case erroneously required a continuous visual observation of the subject of a breath alcohol test under RCW 46.61. 506(4)( a)( ii) and (iii). The Court held instead that a prima facie showing that nothing was in the defendant’s mouth during the fifteen minute period was all that was required, and the State had made such a showing between the officer’s testimony and the videotape in this case, notwithstanding the fact that Ms. Mashek had been out of the officer’s field of vision for at least three minutes, as there was no proof she had put anything in her mouth during those three minutes.  The Court further reversed the trial court’s dismissal of the felony DUI charge, finding that the 1994 vehicular assault conviction in this case was incurred under a statute substantially similar to the current vehicular assault statute and could be used to raise the DUI to a felony.  The Court affirmed the trial court’s exclusion of the State’ s proposed drug recognition expert, however, holding that the expert’s testimony regarding the field tests in this case would have been no more helpful than the officer’s testimony, as the officer was trained in administering the tests.

State v. Garcia:  The Court upheld Mr. Garcia’s convictions for first degree assault, first degree unlawful possession of a firearm, and unlawful possession of a controlled substance.  At trial, Mr. Garcia stipulated that he had committed a “serious offense” for purposes of the unlawful possession of a firearm charge to prevent the State from introducing evidence of his prior first degree robbery conviction. However, the jury instructions inadvertently included an instruction stating that the jury had to find that Mr. Garcia committed first degree robbery in order to convict on the first degree unlawful possession of a firearm charge. The trial court replaced the erroneous instruction and instructed the jury to disregard it. The trial court then denied Mr. Garcia’ s motion for a mistrial.  Division II found that the trial court had not abused its discretion in denying the mistrial motion because the jury’ s temporary exposure to the improper instruction was not such a serious trial irregularity that it could not be cured by an instruction to disregard.

State v. Hayes:  The Court found that a major economic offense sentence enhancement could not be imposed when the trial court instructed the jury that the underlying conviction could be based on accomplice liability. The Court reasoned that the major economic offense sentence enhancement does not indicate legislative intent to extend the enhancement to accomplices.

Division III Court of Appeals

State v. Ritter:  The Court remanded for further hearings regarding Mr. Ritter’s involuntary commitment as a sexually violent predator (SVP).  The Court agreed that the trial court should have held a Frye hearing on a predictive tool used in this case, the forensic version of the Structured Risk Assessment (SRA-FV). The Court directed the trial court to hold the hearing and enter factual findings and legal conclusions for its further review.

State v. Quaale:  The Court found that Mr. Quaale may have been denied his right to a fair trial when the State’s witness, an arresting trooper, testified to his opinion based on a horizontal gaze nystagmus (HGN) test performed in the field that there was “no doubt” Mr. Quaale was impaired from alcohol consumption. Given the type of witness involved, the nature of the testimony, and the limits that the Washington State Supreme Court placed on opinions that may be expressed from HGN testing in State v. Baity, 140 Wn.2d 1,991 P.2d 1151 (2000), Division III held that the opinion might well have improperly influenced the jury, depriving him of a fair trial. The court reversed and remanded for a new trial.

Washington State Supreme Court

State v. Ollivier:  The Court found no violation of Mr. Ollivier’s speedy trial rights under CrR 3.3, the Sixth Amendment to the United States Constitution, and article I, section 22 of the Washington State Constitution when the defendant’s own counsel requested the continuances causing the delay and no claim of ineffective counsel is made related to those continuances.  The Court further found that the search warrant affidavit did not lack probable cause despite defects in the affidavit.  Finally, the Court found that CrR 2.3(d) was not violated when a copy of the warrant was posted at his residence, despite the fact Mr. Ollivier was not personally presented with the warrant prior to commencement of the search. The Court affirmed the Court of Appeals’ decision upholding Mr. Ollivier’s conviction for possession of child pornography.

State v. Wooten:  The Court affirmed Mr. Wooten’s conviction for first degree malicious mischief for damaging a home he was purchasing on a real estate contract. The Court disagreed with Mr. Wooten’s claim that he did not damage “property of another”-an element of malicious mischief – because he had exclusive possessory and proprietary interests in the property.  The Court noted that Mr. Wooten had never signed the real estate contract and it had never been recorded, and thus Mr. Wooten was not the exclusive owner of the property at the time the damage occurred.  The Court further found that the trial court did not abuse its discretion by excluding defense counsel’s closing arguments regarding a mortgage taken out by the seller of the home without Mr. Wooten’s knowledge, finding it was irrelevant to the issue of property damage.

Personal Restraint of Lain:  Mr. Lain challenged RCW 9.95.160 after he was granted parole with a fixed release date, only to have it cancelled four days prior to the release date by the governor pursuant to RCW 9.95.160, which provides that “the governor may cancel or revoke the parole granted to any convicted person by the board.” In response, the board added 36 months to Mr. Lain’s minimum term of confinement.   Mr. Lain argued that the statute violates due process because it does not outline procedures for the governor to provide the inmate notice and an opportunity to be heard before the governor acts. The Court found that RCW 9.95.160 is constitutional both on its face and as applied to Mr. Lain.  The Court found that Mr. Lain was not entitled to a separate hearing before the governor prior to cancellation of his parole, and that due process requirements were met when he had a parolability hearing before the board and received written reasons for the governor’s decision to cancel parole.

State v. Bao Dinh Dang:  The Court found that chapter 10.77 RCW, requires trial courts to find conditionally released insanity acquittees dangerous before committing them to mental institutions against their will.  The court further concluded that a preponderance of the evidence standard sufficiently protects an insanity acquittee’s rights in the context of revoking conditional release.  Because the trial court in this case specifically determined that Bao Dinh Dang was dangerous, the Court found that the revocation of his conditional release was proper.  The Court found that the trial court erred in admitting hearsay statements at Mr. Dang’s revocation hearing without finding good cause for doing so, but that the error was harmless beyond a reasonable doubt.

State v. Monfort:  The Court reversed the trial court’s grant of a defense motion to strike a notice of special sentencing proceeding (hereinafter “death penalty notice”) pursuant to RCW 10.95.040(1).  The Court held that the trial court erred in striking the notice, as the prosecutor is not held to the same standard as the defense attorney in investigating mitigating circumstances prior to filing of the notice, and need not be convinced beyond a reasonable doubt that the defendant should be put to death prior to filing the notice.  The Court further found that a county prosecutor may consider the facts of the crime when deciding whether to file a death penalty notice, and the judiciary may review only whether a prosecutor has a “reason to believe that there are not sufficient mitigating circumstances” under RCW 10.95 .040(1 ).

Federal Law

Ninth Circuit Court of Appeals

United States v. Tercero:  The Court affirmed the district court’s order granting in part and denying in part a requested sentence reduction under the Fair Sentencing Act of 2010 and its related amended Sentencing Guidelines ranges for those convicted of offenses involving crack cocaine.  Ms. Tercero pled guilty to possession of methamphetamines with intent to deliver in exchange for dismissal of two counts involving cocaine.  She was sentenced to 72 months, in consideration of her criminal history and the minimal part she had played in the drug ring.  After passage of the Fair Sentencing Act, Ms. Tercero moved for a reduction in her sentence to 58 months.  The district court agreed to reduce the sentence, but determined that it could not reduce it below the low end of the adjusted Guidelines range, in this case 70 months.  On appeal, the Ninth Circuit found that the district court correctly interpreted and applied both § 3582(c) and § 1B1.10.

Stewart v. Cate:  The panel affirmed the district court’s denial of an untimely habeas corpus petition.  The panel determined that petitioner was not entitled to statutory tolling for the 100-day gap between the denial by the California Court of Appeal of petitioner’s habeas petition and the filing of his petition in the California Supreme Court because there was no “properly filed” petition pending in state court during that time, and because the delay was unreasonable.  Further, the panel found that petitioner failed to pass through the actual innocence gateway of Schlup v. Delo, 513 U.S. 298 (1995), and that the district court properly denied an evidentiary hearing.  In her dissent, Judge Berzon argued that the 100-day gap was reasonable and that the petitioner should have been entitled to statutory tolling.  Alternatively, Judge Berzon would have remanded with instructions to hold an evidentiary hearing on petitioner’s actual innocence claim because he has presented postconviction evidence that, if credible, demonstrates this case to be the sort of extraordinary one that requires reaching the merits of petitioner’s otherwise barred federal habeas claims.

United States v. Horob:  Mr. Horob appealed the district court’s sentence on remand of 132 months, the same sentence he was given prior to the reversal by the Ninth Circuit of two of his convictions, one of which carried a mandatory 24-month sentence.  The Court held that the district court sentenced Mr. Horob, both originally and on remand, in light of the totality of the circumstances, including the nature of the crime and the character and history of the defendant.  Thus, the Court held that the presumption of vindictiveness did not apply when a district court does not impose a more severe sentence on remand, even when the vacated conviction carried a mandatory sentence.

Poyson v. Ryan:  The Court affirmed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition by an Arizona state prisoner challenging a conviction and capital sentence for murder, holding that the Arizona Supreme Court did not deny petitioner his right to individualized sentencing by applying an unconstitutional causal nexus test to potentially mitigating evidence, because the Court could not presume a constitutional violation from an ambiguous record that did not contain a “clear indication” that the court applied such a test as an unconstitutional screening mechanism, as opposed to a permissible means of determining the weight or significance of mitigating evidence.  The Court further denied relief of the petitioner’s claim that the Arizona courts failed to consider his history of substance abuse as a nonstatutory mitigating factor, explaining that the state courts considered the evidence and found it wanting as a matter of fact because it failed to prove a history of substance abuse, and that the state supreme court did not misconstrue the state trial court’s findings so as to deny petitioner of meaningful appellate review.  In a partial dissent, Judge Thomas argued that the state court unconstitutionally excluded mitigating evidence from consideration because it was not casually related to the crimes.  Judge Kozinski, joined by Judges Pregerson, Reinhardt, Thomas, McKeown, Wardlaw, W. Fletcher, Paez, Berzon, Murguia, Christen and Watford, dissented from the denial of the rehearing en banc, arguing that the majority’s decision, to declare the record too ambiguous to interpret, contravenes Supreme Court authority and undermines Circuit law.

Vega v. Ryan:  The Court reversed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition based on ineffective assistance in counsel’s failure to familiarize himself with the file and call witnesses who could provide exculpatory testimony.  The Court found that after petitioner’s conviction of contributing to the delinquency of a minor, child molestation, and sexual abuse, his trial lawyer learned that the victim had recanted her allegations to her priest. The Court found that the trial lawyer should have learned this information prior to trial, and that counsel’s failure to familiarize himself with petitioner’s file led to a failure to present a key witness to the jury, and that a reasonable lawyer would not have made such an “inexplicable” decision. The Court held that counsel’s deficient performance was prejudicial, because the priest’s testimony about the victim’s recantation was not merely cumulative of her own testimony admitting the recantation to her mother, but could have tipped the scales in petitioner’s favor.

United States v. King:  The Court affirmed Mr. King’s convictions for unlawfully dealing in firearms, in violation of 18 U.S.C. § 922(a)(1)(A), and making false statements to customs officials to gain entry into the United States, in violation of 18 U.S.C. § 1001. With regard to the firearms conviction, the Court found that Mr. King was not entitled to a jury instruction that required the government to prove that Mr. King was not acting as an authorized agent of a federal firearms licensee.  Mr. King sought the instruction so that he could argue to the jury that he was not guilty of unlicensed firearms dealing because he only acted on behalf of MHPS, a licensed corporate entity that was in fact a front corporation with a straw principal.  The Court reasoned that one of the primary purposes of the Gun Control Act was to restrict access to those people who may possess firearms, and that it was clear Congress would not make it as easy to work around the act as the attempt made by Mr. King in this case.  Further, the Court noted it is well-settled that an agent may not be insulated from criminal liability merely because his principal has authorized his conduct.  Finally, the Court pointed out that there was no factual basis for the instruction, as there was in fact no evidence that MHPS had authorized Mr. King to sell firearms.

United States Supreme Court

Burt v. Titlow:  The Court found that the Sixth Circuit had failed to apply the “doubly differential” standard to the Michigan State Court when it refused to credit the state court’s reasonable factual finding and assumed ineffective assistance of counsel when the record was actually silent on that issue.  The Court reversed the Sixth Circuit’s reversal of Mr. Titlow’s conviction, reasoning that the state court’s record adequately supported its conclusion that Mr. Titlow’s attorney only recommended withdrawal of a guilty plea after hearing his client’s protestations of innocence.  The Court also found that it appeared the Sixth Circuit had ignored the strong presumption of adequate assistance contained in Strickland v. Washington.  While the Court admitted that counsel’s conduct in this litigation was far from exemplary, it observed that a lawyer’s ethical violations do not make the lawyer per se ineffective.  Justice Alito delivered the opinion of the Court, joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan.  Justice Sotomayor filed a concurring opinion, and Justice Ginsburg filed an opinion concurring in the judgment.


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