14 Jun Case Law Update, Week Ending 6-10-11
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. Mutch: The Court affirmed Mr. Mutch’s conviction and 400-month sentence on five counts of second degree rape and one count of second degree kidnapping. In so doing, the court held that the trial court had the authority to impose this exceptional sentence and that it properly calculated his offender score. The Court reasoned that the five counts of rape did not comprise the same criminal conduct when there had been five distinct instances of penetration, requiring Mr. Mutch to form a new intent each time. Further, despite infirmities in the jury instructions, the Court found that there was sufficient evidence to find beyond a reasonable doubt that the jury had convicted Mr. Mutch of five separate counts of rape. http://www.courts.wa.gov/opinions/pdf/820295.opn.pdf
State v. Monday: The Court reversed Mr. Monday’s conviction for first degree murder and first degree assault stemming from a shooting in Pioneer Square. The Court found that prosecutorial misconduct in the form of repeated racial slurs deprived Mr. Monday of a fair trial. The Court observed that the prosecutor intentionally and improperly imputed an anti-snitch code to black persons only, clearly attempting to discount several witnesses’ testimony both on this basis and on the basis of race. The Court concluded that it could not find beyond a reasonable doubt that the error did not contribute to the verdict, as the misconduct tainted nearly every lay witness’ testimony. http://www.courts.wa.gov/opinions/pdf/827362.opn.pdf
In a concurrence, Justice Madsen argued that a criminal conviction cannot stand when it is obtained in a trial by racial bias deliberately introduced by the prosecution, as occurred here. The concurrence argued that the “injection of insidious discrimination into this case is so repugnant to the core principles of integrity and justness upon which a fundamentally fair criminal justice system must rest that only a new trial will remove its taint.” Although Justice Madsen expressed a belief that there was “abundant evidence of the defendant’s culpability,” she argued that rather than a harmless error analysis, the Court should hold that the “injection of racial discrimination into this case cannot be countenanced at all.” http://www.courts.wa.gov/opinions/pdf/827362.co1.pdf
In a dissent, Justice James Johnson argued that there was overwhelming evidence of Mr. Monday’s guilt in a videotape of the murder, a videotape viewed by the jury. The dissent argued that the conviction should stand based on this evidence, as the jury properly and correctly considered all the evidence and found Mr. Monday guilty, and because the jurors were reminded of their duty to act impartially. Justice Johnson placed his trust in the jury’s ability to faithfully apply the law provided by the instructions to the evidence presented at trial. “By reversing these convictions,” the dissent stated, “the majority not only sets aside controlling legal precedent, it delays or denies justice for the victim, disregarding the constitutional rights of Francisco Green and his family as victims under article I, section 35 of the Washington State Constitution.” The dissent argued that it is possible to deter what it termed “problematic trial conduct” without denying justice for the victim, concluding that “If justice is not equal for all, it is not justice.” http://www.courts.wa.gov/opinions/pdf/827362.no1.pdf
State v. Anderson: The Court affirmed Mr. Anderson’s conviction for child molestation, finding that while statements from a sexual assault clinic nurse concerning a child’s sexual molestation were in fact testimonial and subject to the right to confrontation under the Sixth Amendment, the admission of the statements was harmless in light of the abundant compelling evidence against Mr. Anderson. In so holding, the Court overruled the Court of Appeals, which had held that the statements were nontestimonial because they were made under circumstances indicating that the nurse was conducting a medical examination. http://www.courts.wa.gov/opinions/pdf/840661.opn.pdf
Division Three Court of Appeals
State v. Webb: The Court upheld Mr. Webb’s conviction for reckless endangerment and first degree robbery, finding that there was sufficient evidence to establish that Mr. Webb displayed what appeared to be a firearm when he used a toy gun during the course of a convenience store robbery, based on the testimony of the store clerk that he at first believed that Mr. Webb was armed and testimony of officers that the gun looked real. The Court did, however, reverse the aggravating factor that the robbery involved a destructive and foreseeable impact on Mr. Webb’s young daughter, who was with him during the robbery. The Court reasoned that there was evidence regarding the effect of the robbery on the girl at the time it occurred, but that there was no evidence of long term impact on Mr. Webb’s daughter. Finally, the Court found that the trial court did not err in refusing to give a voluntary intoxication instruction. http://www.courts.wa.gov/opinions/pdf/286274.opn.doc.pdf
In a dissent, Judge Sweeney argued that Mr. Webb was entitled to a voluntary intoxication instruction when the evidence in this case was viewed in the light most favorable to Mr. Webb, as he established that he had been drinking and the alcohol affected his ability to form the requisite mental state for the robbery. The dissent thus argued that the jury should have been instructed on the aggravating factor. The dissent further argued that there was substantial evidence to support the aggravating factor based on the impact on Mr. Webb’s daughter at the time of the robbery. http://www.courts.wa.gov/opinions/pdf/286274.dis.doc.pdf
Personal Restraint of Bailey: The court held that, as a Personal Restraint Petition (PRP) is a civil action, an award of statutory attorney fees to the prevailing party, in this case the State, is proper. The Court reasoned the fees are not prohibited by RCW 10.73.160 in that they do not represent prosecuting attorney salaries and are not intended to recoup expenditures to maintain and operate government agencies. http://www.courts.wa.gov/opinions/pdf/286525.opn.doc.pdf
United States Supreme Court
DePierre v. United States: Justice Sotomayor, writing for the Court, and joined by Justices Roberts, Kennedy, Thomas, Ginsburg, Breyer, Alito, and Kagan, held that, for the purposes of the Anti-Drug Abuse Act of 1986 (ADAA) the term “cocaine base” refers not just to crack cocaine but cocaine in its chemically basic form. Therefore, in this case, where Mr. DePierre was convicted of distribution of 50 grams or more of cocaine base, the District Court did not err in declining to instruct the jury that they must find that in order to find Mr. DePierre guilty of distribution of cocaine base it must find that his offense involved crack cocaine. The Court reasoned that this is the most natural reading of the term “cocaine base,” and to read otherwise, as argued by Mr. DePierre, would be to stray far from the statute’s text, which nowhere contains the term “crack cocaine.” The Court found that the plain language of the statute mandated this conclusion.
In an opinion concurring in part and concurring in the judgment, Justice Scalia argued that the fact that the defendant’s interpretation of the statute is not supported by the statutory text and the fact that there is no evidence of Congressional intent to subject only crack cocaine offenses to enhanced penalties were sufficient to support the judgment in this case. Justice Scalia argued that the remainder of the opinion should have been omitted, and that the “needless detour” taken by the majority into legislative history “conveys the mistaken impression that legislative history could modify the text of a criminal statute as clear as this.” http://www.supremecourt.gov/opinions/10pdf/09-1533.pdf
Sykes v. United States: Justice Kennedy, writing for the court and joined by Justices Roberts , Breyer, Alito, and Sotomayor, held that Mr. Sykes’ prior conviction for felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of the 15-year mandatory minimum prison term under the Armed Career Criminal Act. The Court reasoned that the crime of felony vehicle flight, or felony eluding, contained as an inherent part of the offense the defendant’s lack of concern for the safety of others, and that the danger incurred is similar to arson or burglary.
In his dissent, Justice Scalia observed that this case is the fourth attempt since 2007 to clarify what distinguishes violent felonies under the ACCA from other crimes. The dissent argued this decision is merely another ad hoc judgment that “will sow further confusion,” and that the Court instead should admit that this provision in the ACCA is a “drafting failure” and should be declared void for vagueness.
In her dissent, Justice Kagan, joined by Justice Ginsburg, argued that Indiana, as does most states, distinguishes between simple and aggravated vehicular flight, recognizing that only the latter generally poses a risk to the safety of others. The dissent urged attention to these distinctions when deciding which of Indiana’s several vehicular flight crimes count as “violent felon[ies]” under the ACCA, and argued that Mr. Sykes was convicted only of simple vehicular flight, which should not be considered a violent felony under the ACCA. http://www.supremecourt.gov/opinions/10pdf/09-11311.pdf
Ninth Circuit Court of Appeals
Styre v. Adams: The Court reversed the district court’s writ of habeas corpus to Mr. Styre, finding that the claims are foreclosed by the Supreme Court’s recent decision in Swarthout v. Cooke, which held that “the responsibility for assuring that the constitutionally adequate procedures governing California’s parole system are properly applied rests with California
courts, and is no part of the Ninth Circuit’s business.” In light of this case, the Ninth Circuit has ruled that there is no substantive due process right created by California’s parole scheme. The Court disagreed with Mr. Styre that his case was distinguishable from past precedent because the Governor, rather than the Board, denied his request for parole, finding that the Due Process clause does not require that the Governor hold a second suitability hearing before reversing a parole decision. The Court also found that the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) precludes Mr. Styre from obtaining a writ of habeas corpus. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/06/09-15782.pdf
United States v. Gonzalez-Aparicio: The Court affirmed Mr. Gonzalez-Aparicio’s sentence on one count of attempted re-entry after deportation. The Court found that Mr. Gonzalez-Aparicio fails to satisfy the applicable plain error standard of review with respect to the District Court’s determination that he was previously convicted of a “crime of violence,” namely “statutory rape.” The Court additionally found that the District Court did not otherwise abuse its discretion or impose a sentence that was either procedurally erroneous or substantive unreasonable. The court reasoned that the District Court provided a thorough explanation for its determination, appropriately responded to the various arguments made by the defense, did not give undue weight to the Sentencing Guidelines, and reasonably took into account Mr. Gonzalez-
Aparicio’s prior record as well as several mitigating factors.
In a dissent, Judge Tashima argued that the majority opinion announced a “new and startling method” of selecting a standard of review, one in which the panel, at its sole option, selects which standard of review to apply. The dissent argued that his standard is no standard at all, and that the long-established standard of review should have been applied, requiring the court to reverse and remand for resentencing. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/08/09-10447.pdf
United States v. Scott: The Court affirmed Mr. Scott’s conviction and 220-month sentence for one court of RICO conspiracy for participating in violent acts undertaken by the Aryan Brotherhood gang. The Court disagreed with Mr. Scott’s contention that the district court abused its discretion in limiting voir dire, finding that the questions proposed by Mr. Scott were either repetitive or inflammatory. The Court further found no abuse of discretion in the limits placed on cross-examination or in prohibiting juror note-taking. The Court likewise found no error in the refusal of certain jury instructions when they were not requested and did not fit the evidence. The Court found that the district court did not leave the admissibility of co-conspirator statements to the jury, and found that the judge did not engage in misconduct in remarks made to defense counsel, finding that the remarks did not warrant reversal, and were followed by a series of curative instructions. Finally, the Court upheld Mr. Scott’s sentence, finding no merit in his arguments that the district court violated his Sixth Amendment rights by increasing his sentence based on overt acts, erroneously found his offense was a “crime of violence,” applied the incorrect base offense level, and failed adequately to articulate the reasonableness of the sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/08/07-50020.pdf
Ocampo v. Vail: The Court reversed the district court’s denial of Mr. Ocampo’s petition for habeas corpus relief. In so doing, the Court found that the Washington State Court of Appeals unreasonably applied clearly established Supreme Court Confrontation Clause jurisprudence to the facts of this case, and that the error was prejudicial. Specifically, the Court allowed testimony concerning a witness’ out of court statements to two detectives, which bolstered the State’s weak case against Mr. Ocampo and flatly contradicted Mr. Ocampo’s alibi defense. The Court ordered the writ granted unless the state elects to retry Mr. Ocampo within a reasonable amount of time. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/09/08-35586.pdf
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