Criminal Case Law Update, Week Ending 10-22-10

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

Division Two Court of Appeals

State v. Mankin: The Court held that the privacy act does not apply to defense interviews of police officer witnesses. However, the Court ruled that the Court Rules do not provide any provision for the trial court to order depositions, including depositions of police officers. The Court also found that such witnesses, while they cannot refuse to be interviewed, can set the terms under which they will be interviewed, including refusing to be recorded. The Court noted that Mr. Mankin did not set forth a credible argument that the refusal of a witness to be tape recorded and thus provide the best evidence for impeachment purposes was a due process violation. http://www.courts.wa.gov/opinions/pdf/38977-1.10.doc.pdf

Division Three Court of Appeals

State v. Gatlin: The Court found that sufficient evidence existed to uphold Mr. Gatlin’s convictions for three counts of second degree assault and gang intimidation when, upset by an acquaintance’s refusal to join their gang, Mr. Gatlin and an associate chased down, beat, and choked a man, all the while yelling the name of their gang. After the beating was stopped, Mr. Gatlin is alleged to have threatened the man’s life. The Court likewise found unpersuasive Mr. Gatlin’s argument that the bill of particulars denied him due process, finding that it incorporated the police reports and accurately included all elements of the charged crimes. http://www.courts.wa.gov/opinions/pdf/286207.opn.doc.pdf

In Other News

King County Superior Court Judge Joan E. DuBuque was honored on Friday by the King County Coalition Against Domestic Violence in recognition of her efforts in education, promotion, and coordination of domestic violence preventions services locally and at the national level. http://www.courts.wa.gov/newsinfo/?fa=newsinfo.internetdetail&newsid=1694

Federal Law

Ninth Circuit Court of Appeals

United States v. Berry: The Court noted that Mr. Berry’s pro se motion to vacate his conviction was in actuality a motion for a new trial. The Court found that the motion was brought ten years after the conviction, well outside the three year time limit for such motions, but that the government had waived its objection to the untimeliness of the motion by failing to object to it, and so the district court properly decided the motion on its merits. The court then found that the motion was properly denied when new information regarding the forensic evidence that the government had used against him was merely impeaching and did not discredit the government’s witness, and would not likely result in an acquittal at a new trial. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/22/08-35002.pdf

Earp v. Cullen: The Court ruled that the district court erred in allowing a witness to invoke her Fifth Amendment right against self-incrimination, which deprived Mr. Earp of a full and fair opportunity to present his claim of prosecutorial misconduct, in which he had alleged witness intimidation by the prosecutor, during the initial remand of this habeas corpus petition. The Court remanded for a full and fair evidentiary hearing on only that claim, and instructed that the case be reassigned to a different district judge on remand. The Court also affirmed the district court’s denial of Mr. Earp’s ineffective assistance of counsel claim, finding that there was no showing that Mr. Earp’s trial counsel was deficient. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/19/08-99005.pdf

United States v. Lozano: The Court found that evidence of a prior consensual search of Mr. Lozano’s home in which drugs had been found, but after which Mr. Lozano was not charged with a crime, were properly admitted under ER 404(b), as the evidence of Mr. Lozano’s prior possession or sale of narcotics was relevant with respect to his intent and knowledge for the current distribution charge. The Court further found that the postal inspector had a reasonable suspicion that the package addressed to a “Bill Corner” at Mr. Lozano’s P.O. Box contained contraband after it was reported that Mr. Lozano had been asking questions about inspections of incoming packages for drugs. The Court held that the two day detention of the package from a remote location to allow a sniff by a drug-sniffing dog was a reasonable detention.

In his concurrence, Judge O’Scannlain wrote separately to argue that this case would be more easily resolved by the proposition that Mr. Lozano had no legitimate expectation of privacy in the mailed package, as he was not the addressee on the package. http://www.ca9.uscourts.gov/datastore/opinions/2010/10/18/09-30151.pdf

United States v. Mitchell: The Court affirmed Mr. Mitchell’s 180-month imprisonment sentence as a career offender under the United States Sentencing Guidelines following his guilty plea to distributing 52.4 grams of crack cocaine. The Court joined other circuits in clarifying that, even in cases where a defendant is being sentenced as a career offender the sentencing court may depart downward in its sentence to account for the disparity between treatment of crack cocaine and powder under the Guidelines. (Mr. Mitchell appealed arguing that even the 180-month sentence was too long, and that he should have been sentenced to the 120-month minimum for this crime, due to the disparity.) http://www.ca9.uscourts.gov/datastore/opinions/2010/10/20/08-50429.pdf

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”
253-318-1758
[email protected]

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