21 Jun Case Law Update, Week Ending 6-17-11
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
Personal Restraint of Strandy: The Court granted Mr. Strandy’s motion for discretionary review and remanded to the trial court with directions to vacate two felony murder convictions that the trial court merged with two aggravated first degree murder convictions for sentencing purposes, but did not vacate at the time of sentencing. The Court concluded, and the State conceded, that it was clear from a reading of the judgment and sentence in conjunction with the information that Mr. Strandy was convicted twice for each homicide. http://www.courts.wa.gov/opinions/pdf/823081.opn.pdf
Division Three Court of Appeals
State v. Sweany: The Court held that when an individual commits first degree arson by “knowingly and maliciously . . . ©aus[ing] a fire or explosion on property valued at ten thousand dollars or more with intent to collect insurance proceeds,” the value of the property to be proved is the “value assigned the property for insurance purposes, whether or not it is (as it should be) a fair reflection of fair market value or replacement value.” In so holding, the Court reasoned that the arson statue’s plain language refers to property “valued at” $10,000 or more, and that the plain and ordinary meaning of “valued at” is of a value that is not inherent or objective but which is, or has been, assigned. Thus, for insurance-motivated arson, where the intent is to collect insurance proceeds, the logical assigned value would be the insured value, or the amount the arsonist hopes to collect. The Court found there was ample evidence to support the insured value as being greater than $10,000 in this case where the owner of the mobile home had taken out a policy insuring the home for $45,000. http://www.courts.wa.gov/opinions/pdf/288609.opn.doc.pdf
State v. King: The Court found that Mr. King’s offender score was incorrectly calculated on one of his two convictions, and reversed both convictions, holding that probation or supervision on an out of state criminal conviction does not count in a Washington offender score calculation. In so doing, the Court reasoned that the command of the SRA to add one point to the offender score if the current offense was committed while the offender was under community custody applies only to the various forms of post-custodial supervision applied to offenders under the SRA. The Court noted that the Legislature understood there were times when Washington supervision needed to equate with the practices of other states, but did not equate other states’ supervision of felons with Washington’s supervision for purposes of scoring crimes committed in this state. http://www.courts.wa.gov/opinions/pdf/289052.opn.doc.pdf
United States Supreme Court
Bond v. United States: In an opinion written by Justice Kennedy for a unanimous Court, the Court held that Ms. Bond has standing to challenge the federal statute under which she was indicted, which forbids knowing possession or use, for non-peaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States, on grounds that the measure interferes with the powers reserved to States. In so holding, the Court found that Article III’s standing requirement has no bearing on Ms. Bond’s capacity to assert defenses in the District Court, and that Article III’s prerequisites are met with regard to Ms. Bond’s standing to appeal. The Court disagreed with the government’s contention that Ms. Bond should be permitted to assert only that Congress cannot enact the challenged statute under its enumerated powers, but not that the statute interferes with state sovereignty.
In a concurrence, Justice Ginsburg, joined by Justice Breyer, wrote separately to observe that Ms. Bond, like any other defendant, has a person right not to be convicted under a constitutionally invalid law, as “[i]f a law is invalid as applied to the criminal defendant’s conduct, the defendant is entitled to go free. For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct.” http://www.supremecourt.gov/opinions/10pdf/09-1227.pdf
Davis v. United States: In an opinion written by Justice Alito, joined by Justices Roberts, Scalia, Kennedy, Thomas, and Kagan, the Court upheld a good faith exception to the exclusionary rule for searches conducted in violation of a defendant’s Fourth Amendment rights. The Court found that if the search is conducted in objectively reasonable reliance on binding appellate precedent, as was the search in this case, which was conducted prior to the issuance of the Gant decision. The Court reasoned that the exclusionary rule’s sole purpose is to deter future Fourth Amendment violations, and it operation is limited to situations in which this purpose is “thought most efficaciously served.” Thus, the Court concluded, for exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Those costs are not outweighed, the Court found, when police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence.
In a concurring opinion, Justice Sotomayor agreed that the primary purpose of the exclusionary rule is “to deter future Fourth Amendment violations.” In this case, the concurrence reasoned, application of the exclusionary rule cannot reasonably be expected to yield appreciable deterrence, and thus the exclusionary rule should not apply in this case.
In a dissent, Justice Breyer, joined by Justice Ginsburg, argued that the Gant decision held that a police search of an automobile without a warrant violates the Fourth Amendment if the police have previously removed the automobile’s occupants and placed them securely in a squad car. The dissent noted that the present case involves the same circumstances and, because it was pending while this case was decided, applies in this case, as the majority found. However, the dissent parted ways with the majority with regard to the remedy, arguing that a new “good faith” exception and this Court’s retroactivity decisions are incompatible, as “the Court’s distinction between (1) retroactive application of a new rule and (2) availability of a remedy is highly artificial and runs counter to precedent.” http://www.supremecourt.gov/opinions/10pdf/09-11328.pdf
J.D.B. v. North Carolina: In a unanimous decision written by Justice Sotomayor and joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, the Court held that a child’s age properly informs Miranda’s custody analysis. Here, a juvenile was not given Miranda warnings or an opportunity to speak to his legal guardian or told he was free to leave the room until after his confession, and was pressured with the threat of juvenile detention to admit his involvement in a robbery. The Court reasoned that a child’s age in some circumstances affects how a reasonable person in the suspect’s position would perceive his or her freedom to leave, the standard for finding a custodial situation for Miranda purposes. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to a reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances “unknowable” to them, nor to “anticipat[e] the frailties or idiosyncrasies of the particular suspect being questioned.” The Court remanded for the state court to address the question of whether J.D.B. was in custody when he was interrogated, taking into account all circumstances, including age.
In a dissent written by Justice Alito, and joined by Justices Roberts, Scalia, and Thomas, Justice Alito argued that the Court’s decision was not sensible, but was “fundamentally inconsistent with one of the main justifications for the Miranda rule: the perceived need for a clear rule that can be easily applied in all cases.” The dissent further argued that the holding was not necessary to protect the constitutional rights of minors who are questioned by the police. The dissent posited that this decision was the first step toward a slippery slope that would end in Miranda losing the “clarity and ease of application that has long been viewed as one of its chief justifications. http://www.supremecourt.gov/opinions/10pdf/09-11121.pdf
Tapia v. United States: In a unanimous opinion written by Justice Kagan, the Court held that a federal statute directing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation,” does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Here, Ms. Tapia was convicted of smuggling unauthorized aliens into the United States, and the District Court, in imposing a 51-month prison term, noted its belief that Ms. Tapia should serve that long in order to qualify for and complete the Bureau of Prisons’ Residential Drug Abuse Program. The Court reasoned that prior attempts to use an indeterminate sentencing system premised on faith in rehabilitation had failed, resulting in serious sentencing disparities while rehabilitation was not achieved. The court found that the plain language of the statute as well as its context supported the conclusion reached by the Court.
Justice Sotomayor, joined by Justice Alito, concurred in the opinion, but wrote separately to note her skepticism that the District Judge in fact had lengthened Ms. Tapia’s sentence for rehabilitation purposes. However, the concurrence acknowledged that the District Judge’s comments at sentencing were not perfectly clear, and she could therefore not be certain that the judge did not lengthen Ms. Tapia’ sentence to promote rehabilitation. http://www.supremecourt.gov/opinions/10pdf/10-5400.pdf
Ninth Circuit Court of Appeals
United States v. Landa: The Court found that Mr. Landa’s prior conviction for driving with a BAC of .05 or greater while under 21 years of age was similar to a conviction for DUI and thus counted as a criminal history point pursuant to the US Sentencing Guidelines. The Court disagreed with Mr. Landa’s contention that his violation was actually more like a juvenile status offense and should not be counted under the Guidelines.
In a dissent, Circuit Judge Fletcher argued that the Court should have found that Mr. Landa’s offense was similar to a juvenile status offense and should not have been counted as a criminal history point. The dissent argued that the case should be remanded so that Mr. Landa could debrief the government and allow the district court to determine Mr. Landa’s eligibility for safety valve relief. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/15/09-10429.pdf
United States v. Holmes: The Court vacated and remanded for resentencing on Mr. Holmes’ convictions on six counts of setting public lands afire. Mr. Holmes had argued at sentencing that his crime did not include the destruction or attempted destruction of a place of public use. However, the Court found that Mr. Holmes had conceded the issue of whether the land was a place of public use. The Court then turned to the question of what it means to destroy land, reasoning that, unlike a shattered vase or a shredded document, land will nearly always rebound and be useable again. The Court found that to destroy land, the damage needn’t be total or irreversible and need not eliminate every possible use of the object. Rather, land is destroyed “if it is rendered incapable of being used for one or more of its principal purposes, and can’t be restored swiftly and relatively cheaply… [or] if its aesthetic, environmental, recreational, economic or cultural uses have been eliminated for a significant period of time, generally meaning more than a year.” The Court remanded for further consideration in light of its conclusions, noting that there was insufficient evidence in the record to determine whether or not the fires at issue had destroyed the land.
In a concurrence, Judge Kleinfeld agreed that the sentence should be vacated and the case remanded for resentencing, but argued that the level of sentencing guideline used in this case is that applied to blowing up a government building, an airport, a bus, or a train, and that those acts cannot be compared to the arson in this case. Rather, the concurrence argued, a lower sentencing level is appropriate. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/16/09-30211.pdf
United States v. Park: The court reversed and remanded for resentencing of Mr. Park’s 47-month sentence for a charge of being a felon in possession of a firearm, finding that the district court erred when it refused to impose a “crime of violence” sentencing enhancement based on Mr. Park’s prior conviction for first-degree burglary in California. The Court agreed with the government that the crime is categorically a crime of violence under the sentencing guidelines, and should have been so considered when sentence was imposed in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/17/09-50609.pdf
United States v. Wiles: The Court held that a conviction for attempted sexual assault constitutes a prior conviction for sentencing purposes of a law relating to aggravated sexual abuse, sexual abuse, or abusive conduct involving a minor, such that the district court should apply the enhanced sentencing range of fifteen to forty years to Mr. Wiles, who had been convicted in the present case of transporting or receiving child pornography. The Court reasoned that to be convicted of attempted sexual assault, the sexual assault must “be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.” Further, the Court noted, Montana statutes and case law make clear than an attempt under Montana law relates to the competed offense. Thus, the Court concluded that a conviction for attempted sexual assault us under Montana law relates to sexual abuse for the purposes of the sentencing enhancement in this case, and that the district court did not err in imposing the enhancement. http://www.ca9.uscourts.gov/datastore/opinions/2011/06/17/10-30224.pdf
Proposed court rule re: Access to judicial branch administrative records ready for public comments: A proposed new court rule governing public access to judicial branch administrative records has been released for public input by the Washington State Supreme Court. The rule presumes open access to judicial administrative records, within the standards and guidelines of the rule. Comments on the proposed rule must be received no later than November 30, 2011.
To read the proposed rule, go to http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=258 .
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Law Offices of Dena Alo-Colbeck
“Research and Writing for Washington Lawyers”