Case Law Update, Week Ending 10-14-11

Courtesy of Law Offices of Dena Alo-Colbeck
“Writing and Research for Washington Attorneys”

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

State v. Perez-Valdez: The Court affirmed Mr. Perez-Valdez’s conviction for one count of second degree rape of a child and one count of third degree rape of a child, finding proper two evidentiary decisions made by the trial court. The Court determined that the defense called witnesses who testified to Mr. Perez-Valdez’s reputation for good moral character and, though the State failed to object at the time, it later argued that a general reputation for good character is not pertinent under ER 404(a)(1) to a specific element of the charged crime, rape of a child. The Court thus found proper the trial court’s action in preventing the defense from presenting argument about evidence that, upon later objection, the court deemed to be inadmissible. The Court also found proper the trial court’s denial of Mr. Perez-Valdez’s motions for a mistrial based on a statement made by a state witness relating to the credibility of the victims. http://www.courts.wa.gov/opinions/pdf/840032.opn.pdf

In a dissent, Justice Wiggins argued that the evidence sought to be entered by the defense, testimony about an arson committed by the accusers in this case, was sought to be used as evidence of motive to fabricate allegations against Mr. Perez-Valdez. The dissent argued that Mr. Perez-Valdez was erroneously prohibited from introducing admissible evidence to challenge the alleged victims’ credibility. The dissent argued that the evidence was relevant to show that the alleged victims had a motive to lie, and the defense should have been allowed to present this evidence due to the presumption of innocence and requirement of proof beyond a reasonable doubt. The dissent posited that this evidence was particularly necessary when the conviction rested upon uncorroborated testimony of two teenagers, as in this case. http://www.courts.wa.gov/opinions/pdf/840032.no1.pdf

State v. Franklin: The Court found that the 2009 legislation requiring sentencing courts to reduce the term of community custody when the total terms of confinement and community custody exceed the statutory maximum do apply retroactively to cases such as Mr. Franklin’s. However, the Court also concluded that the legislature in writing the law charged the Department of Corrections, not the sentencing court, with adjusting the length of community custody for those serving terms of confinement or community custody by modifying the end date for community custody. Thus, the Court concluded that Mr. Franklin was not entitled to resentencing by the trial court and affirmed the Court of Appeals. http://www.courts.wa.gov/opinions/pdf/845450.opn.pdf

Division Two Court of Appeals

State v. Ramirez-Estevez: In this partially published opinion, the Court affirmed Mr. Ramirez-Estevez’s conviction on five counts of first degree child rape. The Court agreed that the trial court erred by admitting as an excited utterance the hearsay testimonies of a school counselor and of the victim’s aunt that the victim told them that Mr. Ramirez-Estevez raped her was error. The court reasoned that though recalling the rapes was highly stressful and upsetting for the victim, and that the victim’s understandably excited emotions appeared to have been the result of reliving and relating these past traumatic events to these apparently trusted adults, however the Court observed that the recollection happened nearly two years after the rapes occurred and, because of this prolonged delay, the victim’s statements did not constitute the type of excited utterance made under the stress of the event that are admissible under ER 803(a)(2). However, the Court found the error harmless and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/40226-2.11.doc.pdf

Federal Law

Ninth Circuit Court of Appeals

James v. Schriro: The Court granted Mr. James’ writ of habeas corpus with respect to his death sentence. The Court found that Mr. James was denied effective assistance of counsel in the penalty phase, concluding that counsel’s complete failure to investigate and present mitigating evidence of Mr. James’s troubled childhood, his mental illness, and his history of chronic drug abuse constituted deficient performance. We further conclude that this failure prejudiced Mr. James because it prevented the sentencing judge from learning that Mr. James had “the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” However, the Court affirmed the trial court’s denial of relief with respect to Mr. James’ claimed Brady claim wherein he argued that the state failed to disclose an oral plea agreement with a co-defendant under which the co-defendant agreed to testify against Mr. James. The Court also denied relief with respect to Mr. James’ claims that the state failed to correct false testimony of his co-defendant that denied the existence of this agreement. The Court instructed the district court to grant the state a reasonable amount of time in which to resentence Mr. James and, if the state chooses not to resentence, ordered that Mr. James’ sentence to automatically be converted to life in prison in accordance with Arizona law. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/12/08-99016.pdf

United States v. McEnry: The Court vacated Mr. McEnry’s sentence on his guilty plea to serving as an airman without an airman’s certificate. The Court reasoned that the trial court selected the incorrect guideline under which to sentence Mr. McEnry, and that the trial court further relied upon uncharged relevant conduct in selecting the applicably guideline. Thus, the Court found, the trial court had incorrectly calculated Mr. McEnry’s Guidelines range. The Court remanded for resentencing under the correct guideline range. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/10-10433.pdf

United States v. Reyes: The Court affirmed Mr. Reyes’ conviction in a second criminal trial for (1) securities fraud and making false filings with the Securities and Exchange Commission (SEC) (2) falsifying corporate books and records; and (3) making false statements to auditors. The Court was unpersuaded by Mr. Reyes’ arguments that his conviction should be vacated due to prosecutorial misconduct, insufficient evidence, and various evidentiary and instructional errors at trial. The Court found that Mr. Reyes did not establish prosecutorial misconduct through the government’s use of evidence showing that Mr. Reyes personally profited from the backdating of stock options while he served as CEO of Brocade, as the evidence that was not false, and the Government did not impermissibly ask the jury to draw false inferences from the evidence presented at trial. The Court further found that evidence of the profits made from the scheme was not irrelevant and did not unfairly prejudice the jury. The Court found that the government introduced the evidence to permit the jury to draw a reasonable inference that Mr. Reyes knew what he was doing and how the scheme operated to his benefit. Further, the Court found no misconduct in the government’s questioning of two witnesses to elicit testimony regarding the company’s options-pricing process and governance and compensation practices. The Court found that the testimony was not false or that the government sought to draw improper inferences based on its admission. The Court also concluded that the trial court did not abuse its discretion in admitting Prior Case Evidence to show that Mr. Reyes understood that he was engaged in illegal conduct and that the statements were relevant because they were inconsistent with Mr. Reyes’s position at his second trial and to his guilty state of mind. The Court likewise found no plain error in the introduction of evidence that Mr. Reyes, in his role as CEO, signed the financial statements and representation letters which formed the basis of the Government’s charges that Mr. Reyes falsified Company books and records, and lied to Company auditors. The Court found no error in the rejection of proposed jury instructions as well, including an instruction that a corporate officer is not criminally responsible for the acts of subordinates. The Court found that the district court had discretion to refuse to give a separate instruction regarding the defense’s theory where “other instructions, in their entirety, adequately cover that defense theory.” Finally, the court found that there was sufficient evidence to support the conviction, and that the prosecution did not improperly suggest to the jury that it could find materiality based on proxy-voting decisions, and disagreed that the district court erred because it did not give an instruction that would prevent the jury from being mislead. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/10-10323.pdf

United States v. Urena: The court upheld Mr. Urena’s conviction for assault with a dangerous weapon and possession of contraband in prison. The Court held that the district court did not abuse its discretion by refusing to instruct the jury on his theory that he acted in self-defense, finding that Mr. Urena did not use commiserate force when he stabbed a man in retaliation for calling him a “bitch” in prison, and that even if the other man was armed, it was clear that Mr. Urena was the attacker and could not avail himself of the self-defense instruction. The Court also held that the district court did not violate his Confrontation Clause rights by refusing to allow him to cross examine the treating physician about the cause of the victim’s injuries, holding that the district court’s limitations on cross-examination did not limit relevant testimony, prejudice Mr. Urena, or deny the jury sufficient information to appraise the biases and motivations of the witness. The Court concluded that Mr. Urena was able to cross-examine the doctor regarding the issues on which he testified, and did not have a right to examine him regarding additional issues. Next, the Court held that the district court did not err in refusing to let him designate the treating physician as his expert witness on causation during the trial, finding that Mr. Urena could have hired his own expert or designated an expert prior to trial, but did not do so. Finally, the court found that the sentence was not unreasonable, as the district court sentenced him under the guidelines that were in effect at the time that he was sentenced. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/13/09-50285.pdf

United States v. Carper: The Court affirmed Mr. Carper’s sentence of three years’ imprisonment for unlawfully exporting PVS-14 Gen 3 night-vision devices (“PVS-14 devices”). The Court ruled that the district court correctly interpreted the Guidelines in calculating Mr. Carper’s three year sentence. The Court reasoned that the district court followed the sentencing guidelines, and did not abuse its discretion in declining to make a downward variance to the guidelines. The court noted that the district court explained that it had considered all of the factors in the guidelines and did grant a downward departure to Mr. Carper’s sentence. The Court deferred to the district court decision. http://www.ca9.uscourts.gov/datastore/opinions/2011/10/14/10-10517.pdf

The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators. If you know of anyone who you think would like to receive these updates, please feel free to either forward this message or ask us to add his or her name to our email list. If you have any questions regarding the foregoing decisions or if we may be of assistance on any other matter, please do not hesitate to contact us.

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