Case Law Update, Week Ending 11-3-11

From the Desk of Dena Alo-Colbeck

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

State v. Immelt: The Court overturned Ms. Immelt’s conviction for violating a noise ordinance by sounding her car horn at length in front of a neighbor’s house in the early morning hours. The Court found that the ordinance, which prohibits horn honking for a purpose other than public safety, or originating from an officially sanctioned parade or other public event, was overbroad. The Court noted that in striking down the ordinance, it did not need to determine whether Ms. Immelt’s actions amounted to protected speech, as an overbreadth challenge allows “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” However, the Court found that horn honking in general may rise to the level of speech, and in some instances that speech may be protected. As the ordinance categorically prohibits horn-honking for any purpose other than public safety, unless it is a sound “originating from officially sanctioned parades and other public events,” the court found that it proscribed some protected speech, and does so in a way that prohibits a substantial amount of protected activity. The Court concluded that the statute prohibits a wide swath of expressive conduct in order to protect against a narrow category of public disturbances.

In a dissent, Chief Justice Madsen, joined by Justice Charles Johnson, argued that that the majority improperly failed to consider whether the conduct of blowing a car horn is speech and, in particular, whether the conduct displayed by Ms. Immelt constituted symbolic speech. The dissent argued that the challenged ordinance’s horn-honking provision regulates conduct not commonly associated with expression, and that merely because it is possible to think up possible impermissible applications of the statute does not mean an overbreadth analysis is required. Instead, the dissent argued that the proper course would have been to examine Ms. Immelt’s own conduct, leading to the conclusion that her horn honking was not sufficiently imbued with communicative elements to raise any First Amendment issue.

In a dissent, Justice James Johnson argued that both the majority opinion and Chief Justice Madsen’s dissent fail to properly analyze the constitutional overbreadth challenge to the statute at issue in this case. The dissent argued that the horn ordinance does not violate Ms. Immelt’s free speech rights and is not overbroad. The dissent argued that neither the majority nor the Chief Justice’s dissent properly followed the analytical steps to determine overbreadth. The error, the dissent claimed, came when the majority failed to recognize that the noise ordinance is susceptible to a narrowing construction. Further, the dissent argued that the Chief Justice’s approach confused an overbreadth challenge with an as-applied challenge when it suggested that the Court should have determined whether Ms. Immelt’s own conduct constituted protected speech before engaging in the overbreadth analysis. The dissent argued that, under the appropriate narrowing construction, recognizing the express exceptions for expressive horn use, the horn ordinance does not violate the First Amendment. As applied to Ms. Immelt, the dissent would have found that the horn ordinance legitimately prohibited her harassing conduct.

State v. Beadle: The Court upheld Mr. Beadle’s convictions for child molestation in the first degree. The Court found proper the trial court’s determination that Mr. Beadle’s victim, a four year old child, was unavailable to testify and that her non-testimonial pre-trial statements could be admitted. The Court found that the trial court’s admission of the child’s testimonial statements and evidence of the child’s emotional breakdown was error, but that the error was harmless, as it only confirmed that the jury already knew given other evidence properly admitted at trial, and was unlikely to have affected the outcome of the trial.

Division One Court of Appeals

State v. Hayes: The Court reversed Mr. Hayes’ conviction for leading organized crime, holding that in order to be convicted of this offense, a defendant must actually be a leader of a criminal profiteering organization, not just a member, even a member that aids and abets the leader. The Court also reversed Mr. Hayes’ conviction for possession of a stolen vehicle, holding that the record lacks substantial evidence that Mr. Hayes either disposed of or concealed the vehicles in question.

Division Two Court of Appeals

State v. Johnson: On remand from the State Supreme Court, the Court reversed Mr. Johnson’s convictions for unlawful possession of a controlled substance and unlawful use of drug paraphernalia and remanded to the trial court for a hearing regarding the search of Mr. Johnson’s car incident to his arrest, to determine if that search was in compliance with Gant. The Court found that Mr. Johnson was entitled to such a hearing despite not raising the search issue at trial as the Supreme Court in Robinson held that (1) Gant applies retroactively to appellants whose cases were pending on direct appeal when the United States Supreme Court issued Gant, and (2) failure to raise a suppression issue below does not bar a defendant from raising a Gant issue for the first time on appeal if he meets four specific criteria, which Mr. Johnson met in this case.

State v. Nyegaard: In an opinion identical to Johnson, the Court reversed and remanded Mr. Nyegaard’s convictions for a hearing regarding the search of his car incident to arrest, to determine if that search was in compliance with Gant.

State v. Evans: The Court affirmed Mr. Evans’ conviction for second degree identity theft, finding that a corporation does in fact qualify as a person under the identity theft statute, and that the definition of person in the relevant definitional statute is not ambiguous or void for vagueness. The Court found that the legislature incorporated the term corporation into the identity theft statute, specifically stating that a corporation was a person for the purposes of this crime.

Division Three Court of Appeals

State v. Ibrahim: The Court reversed Mr. Ibrahim’s conviction for being a legal alien in violation of a former statute that required aliens to register all firearms. Noting that citizens are not required to register their firearms, and that Mr. Ibrahim was a permanent legal alien at the time of his arrest, the Court concluded that the statute violated Mr. Ibrahim’s right to equal protection of laws. The Court agreed with Mr. Ibrahim that, as a lawful permanent resident alien, he was entitled to the same constitutional rights as citizens of this country, including the right to keep and bear arms guaranteed by the Second Amendment. In holding that the statute is unconstitutional, the Court further observed that the State Supreme Court strongly suggested that the prohibitions therein violate equal protection when it stated in State v. Hernandez-Mercado, “There is nothing in the ‘statutory scheme’ which establishes that the status of being foreign-born of itself creates ‘dangerous hands’ in the context of firearms control. . . . RCW 9.41.170 is not necessary to safeguard the State’s interest in keeping ‘firearms out of dangerous hands’.”

State v. Devlin: The Court held that a substituted party for a deceased criminal defendant on appeal must independently pursue an order of indigency, and cannot proceed at public expense under the deceased’s order of indigency. The Court further found that the substituted party must demonstrate that the issues on appeal have probable merit and that the party has a constitutional or statutory right to that review at public expense. The Court disagreed with the estate that the personal representative of the estate stands in the shoes of the deceased and is therefore entitled to an order of indigency, reasoning that this would be impossible, as the estate is not an offender and cannot serve a sentence for Mr. Devlin’s crimes. The Court concluded that Mr. Devlin’s estate was not at risk of a loss of liberty and the appeal was thus not at a “critical stage” justifying a constitutional right to counsel at public expense. Thus, the estate would be treated as a quasi-civil appellant without a fundamental constitutional right to legal representation. An order of indigency would only be granted, then, if the moving party could demonstrate “that the issues the party wants reviewed have probable merit and that the party has a constitutional or statutory right to review partially or wholly at public expense.” RAP 15.2(c). If the superior court finds that the party seeking review is unable to pay for all or some of the expenses for appellate review, those findings are forwarded to the Supreme Court to determine whether the superior court should enter an order of indigency. RAP 15.2(c)(2), (d). And if the Supreme Court determines that the party is seeking review in good faith, has an issue of probable merit, and is entitled to review partially or wholly at public expense, the Supreme Court will order the superior court to enter an order of indigency. RAP 15.2(d).

In a concurrence, Judge Sweeney agreed with the analysis and disposition of the majority, but wrote separately to state his belief that the Supreme Court’s opinion in State v. Furth sets out the preferable rule to be followed in this case. Christopher Devlin is dead. The “defendant” does not exist. He no longer walks this earth. Moreover, his estate has no assets. Indeed, there is no showing that any claim has even been made against his estate. So there is no way for the State to relieve him of any punishment or, for that matter, to punish him further.

Federal Law

United States Supreme Court

Cavazos v. Smith: In a per curiam decision, the Court reversed the judgment of the Court of Appeals, which had concluded that the jury’s verdict of guilt in this murder case was irrational. The Court admonished the Ninth Circuit for substituting its judgment for that of the jury, finding that the verdict was supported by sufficient evidence that a rational trier of fact could have agreed with the jury, and thus the Court of Appeals’ action in setting aside the verdict was improper. The Court acknowledged that it is possible that the Court of Appeals genuinely believed the verdict in this case to be mistaken, but that it should have been upheld, as it was a question of whether the prosecution’s or the defense’s expert witnesses more persuasively explained the cause of death in this case. The Court held that it was not the job of the Ninth Circuit to decide whether the State’s theory of guilt was correct, as the jury had decided that question, and its decision was supported by the record.

In a dissent, Justice Ginsburg, joined by Justices Breyer and Sotomayor, argued that the Court’s summary disposition of this case was a misuse of discretion. The dissent argued that discretion, soundly exercised, would have occasioned denial of the State’s petitions for review. The dissent pointed out that the evidence raised many questions and, at the least, argued that the Court should have conducted a thorough review of this case.

Ninth Circuit Court of Appeals

United States v. Reveles: The Court found that the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution does not prevent criminal prosecution of Mr. Reveles for a crime after the Navy punished him for the same offense. The Court agreed with the Government that the Double Jeopardy Clause is not implicated because the non-judicial punishment (“NJP”) administered by the Navy is not criminal in nature. The Court reasoned that Congress did not intend NJP to be criminal, and the punishment meted out was not so punitive as to transform it into a criminal penalty.

Doe v. Busby: The Court affirmed the district court’s grant of a writ of habeas corpus due to deficient jury instructions that informed the jury that it could find Mr. Doe guilty of murder and domestic violence so long as it found by a preponderance of the evidence that he had perpetrated prior unadjudicated acts of domestic violence. The Court found that Mr. Doe’s counsel’s egregious neglect in this case in failing to file a habeas motion despite being paid $20,000.00 up front to do so, and misrepresenting to Mr. Doe for four years – three years after the time for filing had passed – that the petition had in fact been filed entitled Mr. Doe to equitable tolling of his petition. The Court then found that jury instructions that may have allowed the jury to find Mr. Doe guilty based on a preponderance standard rather than requiring a finding of guilt beyond a reasonable doubt were plainly in error and could not be said to have not affected the outcome of the trial. The Court affirmed the issuance of a conditional writ on this basis, but found meritless Mr. Doe’s claims that retroactive application of the California Evidence Code violated the Ex Post Facto Clause of the United States Constitution.

United States v. Williams: The Court held that the federal crime of advertising to distribute child pornography does not require that the defendant produce the child pornography which he advertises or offers to distribute. The Court found that the plain language of the statute and interpretations by other circuits lead to the conclusion that personal production is not an element of the crime, and nothing in the tense of the wording evidences a congressional intent to insert such an element.

Schultz v. Tilton: The Court affirmed the denial of Mr. Schultz’s petition for a writ of habeas corpus, finding that a revised version of the jury instruction used in the Doe case, supra, did not violate Mr. Schultz’s constitutional right to due process by allowing the jury to find him guilty of charged offenses based only on facts found by a preponderance of the evidence. The Court held that in contrast to the prior instructions, the revisions made in 1999 and 2002 made clear that Mr. Schultz could be convicted only if the evidence as a whole “proved [him] guilty beyond a reasonable doubt of the charged crime.”

Seeboth v. Mayburg: The Court dismissed as moot Mr. Seeboth’s appeal from the district court’s denial of his habeas petition. The court noted that during the course of the proceedings in this case, California adopted Proposition 83, which changed the commitment term for sexually violent predators (SVPs) from renewable two-year periods to an indeterminate period. The California Court of Appeal then held that pending petitions for two-year term extensions would be considered petitions for indefinite terms. Therefore, when Mr. Seeboth finally received his trial on the 2005 petition in September 2010, once the jury found Mr. Seeboth to be an SVP the trial court ordered him committed for an indefinite term. The Court found that Mr. Seeboth’s petition was moot as it sought release from custody from a civil commitment for an indeterminate term based on a proceeding that was legitimately commenced and the result of which is not challenged in this appeal.

United States v. Wilson: The Court reversed the district court’s order dismissing appellants Richard A. Gray, Jr., Gray Investment Partners, and Cumberland Hill Capital Fund, L.P., (collectively “Gray”) third-party petition to adjudicate property interests in forfeited property. The Court found that Gray retained an interest in the investment money he deposited into defendant Stefan Wilson’s fraudulent investment fund despite the fact that there was a change in the kind of interest Gray held in the property. The Court held that a petitioner’s interest, or a related interest derived from the petitioner’s original interest, must have existed prior to the event that gave rise to the Government’s interest, but that a change in the type of interest would not forfeit the property. The Court further found that Gray’s interest in the property in this case was greater than Mr. Wilson’s, as the government is merely standing in Mr. Wilson’s shoes, and its interest cannot exceed Mr. Wilson’s interest. However, the Court found that tracing should not be applied in this case, as allowing Gray to trace his funds out of the scheme would be done at the expense of other victims. The Court remanded for further proceedings consistent with its holdings.

Boyer v. Belleque: The Court denied Mr. Boyer’s petition for habeas corpus. The Court found that the evidence presented at Mr. Boyer’s trial was sufficient to find him guilty of attempted aggravated murder beyond a reasonable doubt. The Court reasoned that the prosecution presented evidence of specific intent to kill, that element has been defined by Oregon state law and interpreted by the state appellate court. The Court observed that the evidence of intent was thin, but concluded that state courts have a broad general entitlement to deference to define their own state criminal law and that the state courts’ determination that sufficient evidence existed to support Mr. Boyer’s convictions for attempted aggravated murder was not objectively unreasonable.

United States v. Sanchez: The Court reversed Mr. Sanchez’s convictions for importation and possession of cocaine and remanded for a new trial based on prosecutorial misconduct. The Court held that the prosecutor’s comments suggesting that an acquittal would encourage future lawbreaking as delivered at the end of his closing rebuttal argument were improper and prejudicial and likely affected the jury’s ability to decide the case fairly. The Court observed that, given the scarcity of evidence for either side on Mr. Sanchez’s duress claim, it could not comfortably assume that the jury would have convicted Mr. Sanchez absent the prosecutor’s misconduct. The court concluded that the prosecutor’s comments “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”

United States v. Harvey: The Court affirmed the district court’s order finding Mr. Harvey in violation of his conditions of supervised release based upon his use of marijuana. The Court was apparently unimpressed by Mr. Harvey’s claimed recommendation from a physician to use marijuana in California pursuant to the California Compassionate Use Act of 1996, finding that “[w]hatever else ‘order’ might mean under § 844(a) of the Controlled Substances Act, it does not include a mere recommendation from a physician pursuant to the Compassionate Use Act.”

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