Criminal Case Law Update 11-11-11

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court

In Re Detention of Danforth: The Court found that Mr. Danforth’s actions in describing to an officer in the King County Sheriff’s Office his history of sex offenses and explicitly outlining his plans to molest boys and have intercourse with a child reasonably could be interpreted as a threat. The Court reasoned that Mr. Danforth’s repeated statements that he would act on his plans if not committed as a sex offender made him a present danger and that the involuntary commitment was legal. The court further ruled that the SVP commitment statutes are not unconstitutionally overbroad or vague.

In a dissent, Justice Wiggins compared the commitment and confinement of Mr. Danforth to punishing a citizen for committing a “thoughtcrime” a la George Orwell. The dissent argued that Mr. Danforth’s statements are not a threat because he never expressed any intent to commit a sexually violent act but sought help to prevent himself from so doing. The dissent argued that this did not constitute a recent overt act or threat and that the commitment was illegal.

In a partial concurrence and partial dissent, Justice Chambers agreed with the dissent on key principles of law, but concurred in the result. Justice Chambers reasoned that, given Mr. Danforth’s mental condition and history, the trial court was correct in concluding that “a reasonable jury could find that [Mr. Danforth’s] acts . . . constituted a Recent Overt Act” and in committing him.

State v. Hecht: The Court heard former Pierce County Superior Court Judge Michael Hecht’s appeal from the trial court’s denial of his motion for an order of indigency to allow him to appeal his conviction for felony harassment and patronizing a prostitute. The trial court had denied that order outright without entering findings. Because Mr. Hecht receives public assistance in the form of food stamps, the Court concluded that he meets the statutory definition of indigent, and the trial court erred in denying his indigency petition altogether. The Court found that the trial court should have either found him completely indigent or indigent and able to contribute to his defense, and remanded for further hearings.

Division One Court of Appeals

State v. Crawford: The Court found that the trial court erred in adding an extra point to Mr. Crawford’s offender score, as he was not in community custody, but in jail, at the time he committed the offense at issue in this case. In this case, Mr. Crawford was apprehended for felony eluding while on a term of community custody. Mr. Crawford was not able to make bail and so remained incarcerated until his trial, at which he testified that he was not the driver of the suspect car. After the trial, the State charged Mr. Crawford with perjury and, during sentencing a point was added to his offender score. The Court found that a term of community custody is tolled when an offender is in confinement because the offender is not then serving a portion of his sentence “in the community.” Therefore, the Court reasoned, because Mr. Crawford was not serving time in the community when he committed perjury, the point added to his offender score for committing the perjury under community custody was unauthorized. The Court further held that, because this was a legal error, Mr. Crawford’s agreement to the sentence was not a valid waiver of any objection to the sentence.

State v. Cuellar: In this partially published opinion, the Court upheld Ms. Cuellar’s conviction for third degree assault for biting a police officer, allegedly in self-defense. The Court rejected Ms. Cuellar’s contention that resisting arrest is a lesser included offense of third degree assault. The Court reasoned that intent to resist arrest is not a necessary element of third degree assault, as a person can commit an assault on a police officer who is performing official duties unrelated to making an arrest. Further, the Court noted, resisting arrest does not require conduct that constitutes an assault. Therefore resisting arrest does not satisfy the legal prong to find it a lesser included offense of third degree assault.

State v. Hawkins: The Court affirmed Mr. Crawford’s sentence, rejecting his challenge to an order amending that sentence. The Court found meritless Mr. Hawkins’ argument that the order is void because no request for the visiting judge who signed it appears in the record, noting that there is no requirement, statutory or otherwise, for such a request. The Court further rejected Mr. Hawkins’ claim that the judge erred by refusing to recuse himself, and that his right to counsel was violated when he had no attorney present at the hearing to amend. The Court found that the motion for recusal was untimely, and he had no right to counsel at the purely ministerial hearing to amend. Finally, the Court found that res judicata bars Mr. Crawford from raising his Apprendi and Blakely arguments on appeal.

Division Two Court of Appeals

State v. Pearsall: On remand from the State Supreme Court, the Court reversed Ms. Pearsall’s convictions for unlawful possession of a controlled substance and remanded to the trial court for a hearing regarding the search of Ms. Pearsall’s car incident to her arrest, to determine if that search was in compliance with Gant. The Court found that Ms. Pearsall 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 she meets four specific criteria, which Ms. Pearsall met in this case.

State v. Slighte: In an identical ruling to Pearsall, supra, the Court reversed Mr. Slighte’s conviction for possession of methamphetamines with intent to deliver and remanded for further proceedings in light of the Gant case.

State v. Walker: The Court reversed Mr. Walker’s convictions for first degree murder and first degree assault. The Court found that the prosecutor had committed prosecutorial misconduct during closing arguments in Mr. Walker’s trial by (1) using a fill-in-the-blank argument, (2) comparing the reasonable doubt standard to everyday decision making, (3) telling the jury its job was to declare the truth and return a just verdict, (4) commenting on the length of Mr. Walker’s presentation of evidence, and (5) misstating the defense of others standard. The Court reasoned that this case depended entirely on highly disputed facts, and that the prosecutor’s improper arguments could easily have served as the deciding factor. Further, the Court observed, the prosecutor made the improper comments not just once or twice, but frequently. He used them to develop themes throughout closing argument, such as the repeated references to the jury’s duty to declare the truth and that the jury would not have done it too, and emphasized the statements through PowerPoint slides. The Court concluded that there was a substantial likelihood that the prosecutor’s mischaracterization and minimization of the reasonable doubt standard, improper argument that the jury declare the truth and misstatement of the defense of others standard affected the jury’s verdict, and that further instructions would not have cured the effect of the prosecutor’s comments.

State v. Steen: The Court affirmed Mr. Steen’s conviction for obstructing a police officer after he refused to provide his name and date of birth to law enforcement officers who entered his trailer in response to a reported disturbance. The court found that sufficient evidence supported the conviction. The Court further disagreed with Mr. Steen’s claims that the obstruction statute violates Mr. Steen’s First and Fifth Amendment rights to remain silent, reasoning that the officers in this case did not compel Mr. Steen to express any particular viewpoint that he found repugnant or morally objectionable, but asked for his name and date of birth as part of their investigation. The Court further reasoned that Mr. Steen’s refusal to open the door, reveal his presence, and exit the trailer was substantive evidence of his guilt of the crime of obstruction, not an a comment on his exercise of rights. Finally, the Court found that there was no prosecutorial misconduct committed in this case when the prosecutor comments on Mr. Steen’s pre- and post-arrest silence, finding that the prosecutor has wide latitude in closing arguments and properly commented on testimony that Mr. Steen refused to obey officers’ orders by not exiting the trailer with his hands up.

In a dissent, Judge Quinn-Brintnall argued that because Mr. Steen was not required to open the door to officers who did not have a warrant, complied with requests that he raise his hands and keep them in full view after officers lawfully entered the trailer through a window, and merely exercised his right to remain silent when officers requested that he provide his name and date of birth, the evidence is insufficient as a matter of law to support the jury’s verdict finding Mr. Steen guilty of obstructing a law enforcement officer.

State v. Stirbling: In a partially published opinion, the Court determined that insufficient evidence supported Mr. Stirbling’s conviction for sexual exploitation of a minor, and that he had been improperly sentenced as having committed a class B rather than class C felony for the crime of attempted possession of depictions of a minor engaged in sexually explicit conduct. The court held that the legislature did not intend to criminalize the activity in this case, where Mr. Stirbling merely invited a minor to take and send nude photographs, which request was denied by the minor in question. The Court concluded that the legislature intended the statute to require an actual photograph to be taken or an actual live performance to occur. The Court found insufficient evidence to support this charge.

In a partial concurrence/partial dissent, Judge Penoyar concurred with the majority in every respect, but dissented from the conclusion that there was insufficient evidence to support the conviction for sexual exploitation of a minor, arguing that Mr. Stirbling is guilty under the plain language of the statute.

Federal Law

United States Supreme Court

Bobby v. Dixon: In a Per Curiam opinion, the Court reversed a Sixth Circuit opinion that claimed that the Ohio Supreme Court had erred to the degree that no fair minded jurist could agree with its decision. The Court reasoned that the Sixth Circuit could issue a writ of habeas corpus in this case only if the Ohio Supreme Court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,” as set forth in this Court’s holdings, or was “based on an unreasonable determination of the facts” in light of the state court record. The Court disagreed with the Sixth Circuit’s assessment that the Ohio Supreme Court’s decision contained three such egregious errors. First, the Court found that the Sixth Circuit’s conclusion that Mr. Dixon’s Miranda rights were violated was erroneous, as it was undisputed that Mr. Dixon was not in custody during his chance encounter with police where he allegedly made incriminating statements. Second, the Court found that the Sixth Circuit erred in concluding that police violated the Fifth Amendment by urging Mr. Dixon to “cut a deal” before his accomplice did so, as there is no precedent finding that this common police tactic is unconstitutional. Finally, the Court found that the Sixth Circuit erred in finding that the Ohio Supreme Court unreasonably applied this Court’s precedent to find that Mr. Dixon’s confessions were voluntary, again pointing to the circumstances surrounding the interrogations that demonstrate that statements made by Mr. Dixon during those interrogations were voluntary.

Greene v. Fisher: In a unanimous opinion authored by Justice Scalia, the Court upheld Mr. Greene’s convictions for murder, robbery, and conspiracy after the prosecution introduced the redacted confessions of two of Mr. Greene’s non-testifying co-defendants. The Court found that the rule in Gray v. Maryland, which held that Bruton does apply to some redacted confessions, did not apply in this case as Gray was not issued when the Pennsylvania Superior Court adjudicated Mr. Greene’s claim, and therefore Mr. Greene had not met the required conditions for granting habeas relief. The Court further held that because the Pennsylvania Superior Court’s decision—the last state-court adjudication on the merits of Mr. Greene’s claim—predated Gray by nearly three months, the Third Circuit correctly held that Gray was not “clearly established Federal law” against which it could measure the state-court decision. It therefore correctly concluded that the state court’s decision neither was “contrary to,” nor “involved an unreasonable application of,” any “clearly established Federal law,” the required prerequisite for a grant of habeas corpus relief.

Ninth Circuit Court of Appeals

United States v. Ceballos: The Court held that it did not have jurisdiction to review the district court’s denial of Mr. Ceballos’ request that it recommend a Southern California Housing Designation in sentencing Mr. Ceballos after his guilty plea to one count of conspiracy to distribute methamphetamine. The Court agreed with the reasoning of other circuit courts on this issue, and joined them in concluding that a district court’s recommendation to the Bureau of Prisons is just that—a recommendation. It is not part of the sentence imposed by the district court, nor is it a final order from which an appeal lies.

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