Case Law Update, Week Ending 11-19-10

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court:

In Re Personal Restraint of Francis: The Court held that there was a double jeopardy violation when Mr. Francis pled guilty to felony murder, first degree attempted robbery, and second degree assault, all arising from the same string of conduct. The Court reasoned that the State expressly relied on the second degree assault conduct to elevate the attempted robbery to the first degree when it charged the crimes, and so convictions on both charges violate double jeopardy protections. In response to the State’s argument that Mr. Francis waived his double jeopardy challenge by pleading guilty, the Court referenced its decision in State v. Knight, where the Court had concluded that a double jeopardy violation was the entry of multiple convictions for the same offense, not the guilty pleas themselves, and a defendant could challenge the court’s entry of any convictions that violate double jeopardy.

In her concurrence, Justice Madsen wrote separately to express her concern that the three part test set forth by the majority does not follow legislative intent and establishes a freestanding test that rests upon a misunderstanding of settled law. The concurrence also expressed a concern that the majority discussed determining double jeopardy based on the offenses as charged, rather than on the offenses as charged and proved, which is the true state of the law.

State v. Hirschfelder: The Court held that former RCW 9A.44.093(1)(b), criminalizes sexual intercourse between a school employee and any registered student age 16 or older. The court further held that the statute is neither unconstitutionally vague nor violative of Mr. Hirschfelder’s equal protection rights. The Court reasoned that the statute unambiguously defines “minor” as a registered student and thus includes students up to the age of 21, and is therefore not vague. The Court further held that there was a rational basis for the prohibited conduct, and therefore Mr. Hirschfelder’s discrimination claim that the Court characterized as an equal protection claim failed.

In his dissent, Justice Charles Johnson, joined by Justices Sanders, Owens, and Chambers, argued that the majority ignored an affirmative defense in the statute that allowed a person charged with sexual misconduct to rebut the charge with proof that the alleged victim was 18 years of age. The dissent further argued that the majority appeared to disregard the fact that a statutory interpretation limiting an affirmative defense is significantly different from a statutory interpretation limiting the reach of a criminal statute; an application that is more consistent with the general rule of interpretation that the majority relies upon. The dissent argued that the majority’s conclusion is inconsistent with the statutory scheme taken as a whole, and does not make sense.

In Re Personal Restraint of Adolph: The Court held that Mr. Adolph’s PRP was not procedurally barred; however, they found that there was sufficient evidence to support Mr. Adolph’s prior DUI conviction when that conviction was supported by a certified copy of Mr. Adolph’s DOL abstract and a copy of a defendant’s case history from DISCIS. Therefore, the Court held that the resulting two year sentence enhancement in the instant matter was proper, and denied Mr. Adolph’s PRP.

In his dissent, Justice Sanders argued that the evidence produced by the State to prove Mr. Adolph’s prior DU I was not comparable to a certified copy of the judgment and sentence, and was therefore insufficient to prove the conviction.

Division Two Court of Appeals:

State v. Corbett: Mr. Corbett appealed his conviction on four counts of first degree child rape, arguing that(1) the trial court improperly limited his cross-examination of a witness, (2) sufficient evidence does not support three of his convictions, (3) the jury instructions failed to protect his rights to be free from double jeopardy and to receive unanimous jury verdicts, (4) the prosecutor committed misconduct during closing arguments, and (5) the sentencing court imposed an unlawful prohibition on his contact with all minors, including his own biological children. The Court affirmed, concluding that Mr. Corbett did not provide sufficient arguments regarding the alleged erroneous limitations on his cross-examination of a witness, sufficient evidence supports his convictions, the jury instructions were proper, the prosecutor did not commit misconduct, and the sentencing condition prohibiting contact with all minor children, including Mr. Corbett’s own children, is “a valid crime-related prohibition that does not unduly burden his fundamental parenting rights.”

State v. Barnes: The court ruled that a search incident to arrest in this case was permissible when the arrest was for the crime of felony harassment and there was a gun case in plain view in the car. The Court distinguished this case from Patton and Valdez on the basis of the evidence in plain view as well as the fact that, in Patton, the defendant was not a driver or recent occupant of the car, he was secured in a patrol car at the time of the search, and there was no evidence of the crime of arrest or contraband in the car. Further, the State did not assert that there was probable cause for the search. Thus, the Court interpreted the Patton holding as a finding that the search was unconstitutional due to a lack of nexus between the arrestee, the crime of arrest, and the vehicle. Here, Mr. Barnes owned the car, was preparing to drive away at the time of his arrest, and there was probable cause to believe that there was relevant evidence in the vehicle. Therefore, the Court held that the search was constitutional.

In her dissent, Judge Van Deren argued that the evidence found in Mr. Barnes’ vehicle should have been suppressed because the officers were required to obtain a search warrant under Valdez prior to seizing evidence from the vehicle. Neither Gant nor Valdez mention the open view exception to the necessity to obtain a search warrant, the dissent observed, thus calling into question whether this is a valid exception to the warrant requirement for a search conducted after a driver is stopped and removed from his vehicle. Further, the dissent noted that the gun itself was not in open view in Mr. Barnes’ vehicle, and disagreed that the gun box alone was sufficient to trigger the open view exception.

Division Three Court of Appeals:

State v. Valdez: The Court held that the fact that a stolen laptop computer did not work was not exculpatory evidence, and the State’s failure to retain the computer or computer-related records did not violate Mr. Valdez’ due process rights. Further, the Court concluded that the evidence of Mr. Valdez’ culpability, independent of this evidence, was overwhelming, and affirmed his conviction.

State v. Naillieux: The Court found that there was no error in the trial court’s failure to give a unanimity instruction when none was requested and further no error as to the admission of opinions on whether a tank was approved by DOT. The Court upheld several convictions relating to the manufacture of methamphetamines, but concluded that the State failed to properly allege the elements of eluding a police vehicle and reversed that conviction.

Federal Law

Ninth Circuit Court of Appeals:

United States v. Todd: The Court affirmed Mr. Todd’s convictions for three counts of sex trafficking and one count of conspiracy to commit sex trafficking, finding sufficient evidence to uphold the convictions when Mr. Todd knew that force, fraud, or coercion was to be employed to cause his victims to engage in commercial sex transactions. The Court ruled that the knowledge of future action in the statute does not require knowledge in the sense of certainty as to a future act; rather it requires that the defendant was aware of an established modus operandi that would in the future cause a person to engage in prostitution.

Judge Smith wrote a separate concurrence to explain why he agreed with the panel decision.

United States v. Spangle: Calling meritless Mr. Spangle’s arguments that he was deprived of his Sixth Amendment right to represent himself, that the district court judge should have recused himself, and that the sentence imposed was unreasonable, the Court affirmed Mr. Spangle’s twenty-four month term of imprisonment imposed upon the revocation of his supervised release after he absconded from that release, withdrew cash from a bank account, bought a gun, and was attempting to locate his former probation officer.

United States v. Anderson: The court overturned the district court’s dismissal of Mr. Anderson’s indictment, finding that he could be charged with the crime of being a felon in possession of a firearm when the two predicate felony convictions each resulted from a plea of nolo contendere in a California state court, as the State of California treats a plea of nolo contendere as equivalent to a guilty plea.

United States Supreme Court:
Abbott v. United States: In an opinion authored by Justice Ginsburg and joined by all justices except Justice Kagan, who took no part in the consideration or decision of this case, the Court held that a defendant is subject to the highest mandatory minimum specified for his conduct when sentenced under the Gun Control Act, unless another provision of law directed to conduct proscribed by that act imposes an even greater mandatory minimum. The Court agreed with the government that the “except” clause, added in 1998, which provides for imposition of a minimum five year term as a consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by [the Gun Control Act itself] or by any other provision of law,” is triggered only when another provision commands a longer term for conduct violating the Gun Control Act. The Court disagreed with the defendants’ assertion that the clause was triggered when a mandatory minimum sentence was imposed for any crime, not solely those within the Gun Control Act.

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

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