Case Law Update, Week Ending 10-21-11

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

Washington State Law

Washington State Supreme Court

State v. Ibarra-Cisneros: The court reversed Mr. Ibarra-Cisneros’s conviction for possession of cocaine based on an unlawful search of his brother and co-defendant’s cell phone. The Court agreed with the Court of Appeals that the search of Mr. Ibarra-Cisneros’ home was unlawful and the subsequent evidence seized as a result of the subsequent search of the cell phone must also be suppressed. However, the Court disagreed with the appellate court’s use of the attenuation doctrine to find that any connection between the cell phone and the cocaine found near Mr. Ibarra-Cisneros was too attenuated to affect his conviction. The Court ruled that the State offered no supporting facts or argument for the application of the attenuation doctrine as an exception to the exclusionary rule in this case, and that the Court of Appeals failed to consider both this fact and the record below in applying the attenuation doctrine to uphold Mr. Ibarra-Cisneros’ conviction. The Court concluded that the State has not met its burden of purging the taint resulting from the unlawful home search, and that as a result all evidence seized in the search must be suppressed.

In a concurrence, Justice Alexander agreed with the result in this case, but argued that the Court of Appeals correctly considered the issue of whether the evidence found in the search of the cell phone was too attenuated from the discovery of the cocaine. The Court found that the Court of Appeals had ample evidence to consider this question, but that it incorrectly determined that the evidence was too attenuated when there was an ample showing that the evidence found in the search of the cell phone was instrumental in the discovery of the cocaine with which Mr. Ibarra-Cisneros was charged with possessing.

In a dissent, Justice Madsen argued that the majority should have considered whether Mr. Ibarra-Cisneros had any privacy interest in his brother’s cell phone or in a conversation on that phone that eventually led to discovery and seizure of the cocaine. The dissent argued that there must be a protectable privacy interest at stake before there can be a constitutional violation or any need to address taint or suppression of evidence. Here, the dissent posited, the record “unequivocally” showed that no privacy interest existed, and suppression was inappropriate.

In a dissent, Justice James Johnson argued that the majority reversed in the face of clear evidence supporting the verdict and failed to answer the question on which review was granted in this case. The dissent claimed that the record in this case showed that officers observed a bindle of cocaine at Mr. Ibarra-Cisneros’ feet after he exited a truck in a public parking lot. According to the dissent, Mr. Ibarra-Cisneros was lawfully seized and the bindle was in plain view when it was observed. The dissent argued that the bindle was properly admitted in evidence and the jury’s verdict that Mr. Ibarra-Cisneros was in possession of cocaine should not have been overturned.

Personal Restraint of Carter: The court reversed the Court of Appeals’ reversal of Mr. Carter’s sentence. The Court held that the Court of Appeals correctly applied the actual innocence doctrine to this case, finding that the doctrine may be applied in non-capital cases in Washington State, an issue that has split the federal courts. However, the Court found that the Court of Appeals erroneously applied the doctrine, which requires that the petitioner first exhaust all other challenges and demonstrate that there is an alleged constitutional error resulting in the conviction of one who is actually innocent of the crime or of the aggravated circumstances supporting a penalty. Here, Mr. Carter argued that his California assault conviction was not comparable to a Washington strike offense, and therefore his conviction on a third strike and subsequent life sentence was in error. The court observed that a petitioner must demonstrate “by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible” for the sentence received. The Court found that Mr. Carter did not meet this burden. Further, the Court found that Mr. Carter had raised other challenges to his sentence, and remanded for consideration of those challenges.

In a concurrence, Justice Stephens agreed with the result reached by the majority because the Court of Appeals erred in applying the actual innocence doctrine before considering other available claims to avoid the time bar. Al innocence” in the context of a persistent offender sentencing enhancement requires proof that the defendant did not commit any underlying offense.

Division One Court of Appeals

State v. Parent: In this recently published opinion, the Court applied the rule of lenity to find that the trial court had no authority to impose probation for a length of time in excess of the maximum term set forth in RCW 9.95.210. Here, Mr. Parent’s sentence to two consecutive 12-month jail terms, with 16 months of the total term of confinement suspended for a period of 24 months on each count, to run consecutively, for a total period of 48 months probation. The Court found that the pivotal langue in the statute, which prohibits the sentence from exceeding the maximum term of sentence or two years, whichever is longer, is silent as to whether the term “sentence” refers to the cumulative sentence imposed in the one judgment and sentence, or to the individual sentence imposed on each count. As the statute was ambiguous, with two equally valid interpretations, the Court found that the rule of lenity must be applied and the sentence reversed.

State v. Ramos: The Court overturned Mr. Ramos’ conviction for unlawful delivery of cocaine and remanded for a new trial. The Court found that the prosecutor committed substantial misconduct during cross examination and closing argument, and violated Mr. Ramos’ constitutional right to a fair trial. The Court found that the prosecutor improperly asked Mr. Ramos on cross-examination whether one of his witnesses had a motive to lie, and by asking Mr. Ramos about the drug history of the man and the woman he spoke to while under surveillance. Finally, the Court found that the prosecutor committed misconduct in closing argument by improperly appeal to the passion and prejudice of the jury by arguing that Mr. Ramos was part of the drug world and that the jury should convict him in order to eliminate drug dealing in a certain area. The court found that there was a substantial likelihood that these three instances of misconduct impermissibly affected the jury’s verdict and reversed and remanded for a new trial.

Division Two Court of Appeals

State v. Lohr: The Court reversed Ms. Lohr’s conviction and remanded to the trial court to enter an order suppressing the evidence during an unauthorized search of her purse during a premises search. The Court found that Ms. Lohr was not named in the warrant and the purse searched was readily recognizable as belonging to her when it was next to her pants and shirt and she admitted ownership of the purse when asked. Thus, the court concluded, the purse was not lawfully within the scope of the premises search warrant, which allows only the search of the premises owner’s personal effects if those effects are “plausible repositories for the objects named in the warrant.” The Court observed that a premises warrant does not authorize an officer to conduct a personal search of individuals found at the premises or a search of the personal effects that individuals are wearing or holding, as occurred in this case.

State v. Ferguson: In this partially published opinion, the court affirmed Mr. Ferguson’s convictions from two trial for one count of first degree robbery with a firearm enhancement, two counts of first degree kidnapping with firearm enhancements, and one count of attempting to elude a pursuing police vehicle. The Court disagreed with Mr. Ferguson’s argument that the accomplice liability statute is unconstitutionally overbroad because it criminalizes constitutionally protected speech in violation of the First and Fourteenth Amendments to the United States Constitution. The Court adopted Division One’s reasoning in Coleman and held that the statute is not overbroad because its language forbids advocacy directed at and likely to incite or produce imminent lawless action, it does not forbid the mere advocacy of law violation that is protected speech.

State v. Harris: The Court reversed Mr. Harris’ conviction for first degree assault of a child, and remanded for a new trial. The court found that the trial court erred in giving an incorrect recklessness jury instruction. The court declined to reach Mr. Harris’ claims that his counsel was ineffective for failing to file a Knapstad motion to dismiss a charge that he engaged in a pattern and practice of abuse of the minor child and that the trial court abused its discretion in admitting evidence of prior injuries to the minor child. The court finally found that the evidence was sufficient to support the conviction. However, the Court found that the recklessness instruction given to the jury, that defined recklessness as knowing and disregarding a substantial risk that a “wrongful act” may occur, and that the court should instead, as argued by Mr. Harris, have substituted the term “great bodily harm” for the term “a wrongful act.” The Court reasoned that the instruction as given does not adequately convey the mental state required to convict Mr. Harris for first degree assault of a child, and ignores the direction of the pattern jury instruction to instruct the jury that, in order to find that a defendant acted recklessly, it must find that the defendant “act[ed] recklessly when he or she kn[e]w[ ] of and disregard[ed] a substantial risk that [a particular result] m[ight] occur and this disregard [wa]s a gross deviation from conduct that a reasonable person would [have] exercise[d] in the same situation.” WPIC 10.03, at 209. The court additionally found that the instructions deprived Mr. Harris of an opportunity to argue his theory of the case, that Mr. Harris knew his actions would cause great bodily harm, and that he realized the import of his actions when undertaken.

State v. Fenwick: The Court upheld Mr. Fenwick’s convictions for first degree unlawful possession of a firearm and Driving Under the Influence. The Court declined to allow Mr. Fenwick to raise for the first time on appeal that the search of his car incident to arrest was unlawful under Gant. The court found first that Robinson could not be applied to this case to circumvent the requirement of issue preservation, as the change in the law occurred prior to the time Mr. Fenwick’s trial was completed. In further determining that the error in failing to raise this issue was not a manifest error, the Court found that there was insufficient evidence in the record to determine that, had this issue been raised below, the trial court would have suppressed evidence, as there was insufficient evidence as to whether Mr. Fenwick’s passenger was constrained, and therefore posed a threat to officer safety or was able to destroy evidence at the time of the search. For this reason, the Court also found there was insufficient evidence to address Mr. Fenwick’s ineffective assistance of counsel claim. Interestingly, however, in dicta the Court appears to have acknowledged that the Washington Supreme Court in Patton did require that a search incident to arrest be conducted only if there is “a reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains evidence of the crime of arrest that could be concealed or destroyed, and that these concerns exist at the time of the search.” This dicta is seemingly contrary to other recent opinions of the Court the appeared to hold that a search incident to arrest could be conducted merely due to a belief that there was evidence of the crime of arrest in the car.

State v. Cooper: The Court affirmed Mr. Cooper’s sentence imposed following his guilty plea convictions for bail jumping and for obtaining or attempting to obtain a controlled substance by fraud or forged prescription. The Court found no error in the trial court’s determination that Mr. Cooper’s two Texas deferred adjudications counted as “conviction[s]” under RCW 9.94A.030(9)1 for offender score calculation purposes. The Court held that the trial court properly considered these Texas adjudications as “convictions” for offender score calculation purposes, because, despite not having “entered” these adjudications, the Texas court had accepted Cooper’s guilty pleas to these charges. The Court reasoned that the plain language of RCW 9.94A.030(9) expressly provides that acceptance of a guilty plea is sufficient to establish a prior “conviction” for offender score and sentencing purposes. Thus, the Court concluded, the statute’s plain language supports the trial court’s inclusion of Cooper’s two Texas deferred adjudications as “convictions” in his offender score.

Federal Law

Ninth Circuit Court of Appeals

United States v. Wilkes: The Court partially reversed and remanded Mr. Wilkes’ convictions on multiple counts of conspiracy, honest services wire fraud, bribery, and money laundering stemming from the political corruption surrounding former California Congressman Randall “Duke” Cunningham, who provided lucrative government defense contracts to Mr. Wilkes and others in exchange for expensive meals, lavish trips, a houseboat in Washington, D.C., and mortgage payments for his multi-million dollar home in San Diego County. The Court remanded on the issue of whether the district court should have granted use immunity to defense witness Michael Williams, ordering an evidentiary hearing on the issue, which Mr. Wilkes claimed violated his Fifth and Sixth Amendment rights. Under Straub, the court found that the district court’s determination that it was not authorized to compel use immunity for defense witness Williams absent a finding of prosecutorial misconduct was erroneous. However, the Court found no reversible error in the remainder of Mr. Wilkes’ claims, including claims that prosecutors committed Brady violations and engaged in improper closing arguments, and that the district court erroneously failed to grant Mr. Wilkes a continuance for trial preparation. The Court further found sufficient evidence to support Mr. Wilkes’ conviction, that reversal is not required under Skilling v. United States due to prosecution reliance on honest services fraud theories invalidated in that case, and that the criminal forfeiture judgment does not violate the Sixth Amendment despite the failure of the jury to return a verdict on that charge.

United States v. Rizk: The Court affirmed Ms. Rizk’s convictions for one count of conspiracy, one count of bank fraud, and thirteen counts of loan fraud. The Court found no error in the admission of two summary charts under Federal Rule of Evidence 1006, and found sufficient evidence to support the convictions. The Court reasoned that the summary charts, which outlined the alleged conspiracy in this case, were within the scope of the indictment, as the transactions shown on the charts were “inextricably intertwined” with the conspiracy charge and were not “other acts” subject to Rule 404(b), despite not being included in the indictment. The Court concluded that a jury rationally could view the summary charts as proof of the scope of the conspiracy and of Ms. Rizk’s broad participation in it. Further, the Court found that the government made the requisite showing under Federal Rule 1006 to introduce summary evidence by seeking to admit admissible evidence that was made available to Ms. Rizk for inspection. The Court pointed out that the error claimed by Ms. Rizk, that the government did not present the underlying records supporting the information on the charts at trial, was in fact the very act that Rule 1006 allows, as the rule permits the admission of summaries based on voluminous records that cannot readily be presented in evidence to a jury and comprehended. However, the Court did find error in the restitution order, which ordered a full restitution to be paid to the alleged victims. Instead, the Court found, the order should have directed payment to Ms. Rizk’s insurer to recoup the payment it made to the victims, and that that amount should be deducted from the amount to be paid to the victims, as they had already received that sum from the insurer.

Dena Alo-Colbeck
Law Offices of Dena Alo-Colbeck
“Research and Writing for Washington Lawyers”
[email protected]

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