Criminal Case Law Update, Week Ending 10-29-10

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

Washington State Supreme Court

In Re Detention of Post: The Court held that the introduction by the State in Mr. Post’s trial to determine if he was a sexually violent predator (SVP) of evidence regarding the treatment that would be available to him if he were civilly committed and the possibility of release to a less restrictive alternative in the future was irrelevant and the admission of this evidence was error that was not harmless. However, the court held that evidence that a person who commits a “‘[r]ecent overt act,'” as defined by RCW 71.09.020(12), could be subject to a new SVP commitment petition is relevant in an SVP determination trial. The Court remanded the case for new proceedings consistent with its opinion.

In her concurrence/dissent, Chief Justice Madsen agreed that evidence regarding future treatment and future release to a less restrictive alternative was irrelevant to the SVP determination. Justice Madsen parted company with the majority over its holding that evidence of a recent overt act could trigger a new SVP petition, arguing that the potential for this evidence to confuse and mislead the jury outweighs its probative value, and the evidence should have been excluded.

In her concurrence, Justice Stephens agreed that Mr. Post should be entitled to a new trial, agreeing that the evidence admitted was properly excluded upon remand. However, Justice Stephens disagreed that any evidence of treatment in which Mr. Post did not participate was irrelevant, arguing that such evidence is relevant and can be properly admitted with an adequate limiting instruction.

State v. S.S.Y: The Court held that S.S.Y.’s convictions and subsequent consecutive sentences for first degree robbery and first degree assault did not violate double jeopardy. In so holding, the Court ruled that the juvenile sentencing structure for first degree robbery and first degree assault demonstrates a legislative intent to punish these crimes as separate offenses.

State v. Werner: The Court held that Mr. Werner was entitled to a jury instruction on self-defense in his prosecution for first degree assault when he claimed he had accidentally discharged a firearm into the ground while attempting to dial 911 when confronted by seven of his neighbor’s dogs that had previously exhibited menacing behavior toward him while he was on his own property. The testimony of the alleged victim varied considerably from Mr. Werner’s account, but the Court held that Mr. Werner had produced sufficient evidence of both accident and self-defense for the trial court to have given the instruction.

Division One Court of Appeals:

State v. Fortun-Cebada: The Court affirmed Mr. Fortun-Cebada’s conviction of possession of cocaine with intent to deliver, finding that he was unable to establish ineffective assistance of counsel with his claim that his attorney failed to move to suppress on the grounds of unlawful seizure of his alleged buyer, improper admission of a show-up identification and failure to object to out of court hearsay statements at the 3.6 suppression hearing. The court concluded that there was no unlawful detention of the alleged buyer and that the show-up identification of Mr. Fortun-Cebada did not create a substantial likelihood of irreparable misidentification. The Court also concluded that the admission of out-of-court hearsay statements at the pretrial CrR 3.6 hearing did not violate Crawford.
State v. Roberts: The Court declined to review Mr. Roberts’ claim, made for the first time on appeal, that the search of his vehicle was in violation of Arizona v. Gant, finding that the record was insufficient to allow it to evaluate the merits of the claimed Constitutional error to determine whether it was a manifest error under RAP 2.5(a)(3), because there was not enough evidence to determine if the claimed inventory search was valid or was a pretext to search for evidence.

Division Three Court of Appeals:

State v. Grogan: On remand from the State Supreme Court, the Court held that there was sufficient independent corroborating evidence supporting the corpus delicti of the crime of first degree child molestation to allow admission of Mr. Grogan’s confession under the corpus delicti rule, as clarified in Dow. (The Dow Court held that RCW 10.58.035 pertains only to admissibility of statements, and not to the sufficiency of evidence required to support a conviction, and the State must still establish all elements of a crime). The Court’s holding in this present case was based upon statements made by six-year-old M.L. prior to her murder that Mr. Grogan had touched her inappropriately, combined with statements by Mr. Grogan’s stepson that Mr. Grogan, after M.L.’s funeral, had likewise admitted to the inappropriate touching. Because independent proof of the crime was present here, the Court ruled that RCW 10.58.035, which pertains only to “when independent proof of the corpus delicti is absent,” did not apply in this case.

Federal Law

Ninth Circuit Court of Appeals:

United States v. Redlightning: The Court affirmed Mr. Redlightning’s conviction for killing Rita Disanjh on Native American land with premeditation and in the perpetration or attempted perpetration of sexual abuse. In so holding, the Court found that the district court did not err in (1) refusing to suppress Mr. Redlightning’s confessions; (2) excluding certain portions of expert testimony regarding the effects of hypoglycemia and PTSD on a confession; (3) excluding expert testimony regarding false confessions; (4) excluding evidence that a police officer previously supplied a suspect with nonpublic information about the murder, excluding unreliable hearsay evidence pursuant to the residual hearsay exception that another suspect may have committed the murder, and excluding evidence of manual strangulations in a neighboring county; and (5) rejecting Mr. Redlightning’s proposed jury instruction regarding the credibility, reliability, and truthfulness of his confessions. The Court also concluded that the prosecutor’s statement in closing arguments that people do not confess to crimes that they did not commit did not result in plain error, nor, likewise, did the district court’s failure to limit the jury’s use of Mr. Redlightning’s confession under Rule 413 when Mr. Redlightning failed to request a limiting instruction. Finally, the Court ruled that if the district court erred in excluding expert testimony about the absence of Redlightning’s medicine, medical equipment, and eyeglasses, that error was harmless in light of other evidence admitted.

Landrigan v. Brewer: The Court upheld the Arizona District Court’s order enjoining Mr. Landrigan’s execution, finding that the State of Arizona had not provided sufficient information to establish that the foreign-procured sodium pentothal that the State intended to use in the execution was reliable and safe, such that the use would not result in serious or needless suffering during the course of the execution.

United State v. Vela: The Court held that a finding of not guilty by reason of insanity and the resulting lack of criminal sentence does not necessarily preclude appellate jurisdiction. Further, the Court held that Mr. Vela’s motions to dismiss the indictment, to instruct the jury on a willfulness element when none was charged, and to present a diminished capacity defense were properly denied. With regard to the diminished capacity defense, the Court found that the crime with which Mr. Vela was charged did not require specific intent, and therefore the defense was not available.

In a dissent, Judge Smith argued that there was in fact no jurisdiction to hear this case, as there could be no final judgment without conviction and imposition of a sentence.

McNeal v. Adams: The Court affirmed the district court’s denial of Mr. McNeal’s habeas petition, finding that the motion to compel a DNA sample from Mr. McNeal did not violate his right to counsel. In its holding, the court assumed without finding that Mr. McNeal had a right to counsel at that proceeding, but noted that counsel appeared after the hearing but before collection of the DNA sample and could have objected at that time, and that counsel further had an opportunity to object to the admission of the DNA evidence. Therefore, the Court concluded that lack of counsel at the hearing was not prejudicial. The Court then found that the DNA hearing was not in fact a critical stage of the proceeding at which Mr. McNeal was entitled to counsel.

In a concurrence, Judge Berzon argued that the “critical stage” determination was unnecessary, but concurred in the Court’s result. Judge Berzon further argued that the majority had confused the two standards for right to counsel, noting a distinction between the questions of whether a defendant is entitled to counsel during a certain proceeding and whether the denial of a lawyer gives rise to automatic reversal of the conviction because of the difficulty of determining the impact a lawyer may have had.

Williams v. Ryan: The Court found that the state court erred in refusing to consider all mitigating evidence at sentencing in Mr. Williams’ case and remanded for consideration of Mr. Williams’ due process claim. Further, the Court remanded for an evidentiary hearing, denied by the District Court, on Mr. Williams’ Brady claim, citing potentially exculpatory evidence found after his conviction.

Judge Ikuta, concurring in part and dissenting in part, disagreed with the majority’s decision to remand for an evidentiary hearing on Mr. Williams’ Brady claim, arguing instead that the suppression of the exculpatory evidence in this case rose to the level of a Brady violation
with respect to the penalty phase of Mr. Williams’ capital case, but not with respect to the guilt phase.

United States v. Krane: The Court concluded that, under the circumstances presented in this case, the Perlman rule survives Mohawk Industries, Inc. v. Carpenter. The Perlman Case ruled that a discovery order directed at a ‘disinterested third-party custodian of privileged documents’
is immediately appealable because ‘the third party, presumably lacking a sufficient stake in the proceeding, would most likely produce the documents rather than submit to a contempt citation.’ However, the Mohawk Case held that “disclosure orders adverse to the attorney-client privilege” are not subject to interlocutory review under the Cohen “collateral order” exception to the final-judgment rule of 28 U.S.C. § 1291. 130 S.Ct. at 609. (See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). In resolving the apparent tension between the two rulings, the Court reasoned that Mohawk forecloses interlocutory appeal of some district court orders where post judgment appeals will suffice to protect the rights of the litigants and assure the vitality of the attorney-client privilege. On the other hand, Perlman applies in those cases where a privilege holder is “ ‘powerless to avert the mischief of’ ” a district court’s discovery order because the materials in question are held by a disinterested third party. Thus, where a third party holds the materials, that party may well disclose rather than appeal or suffer a contempt violations, effectively foreclosing the aggrieved party’s appeal rights.

Smith v. Mitchell: On this second remand from the United States Supreme Court, the Ninth Circuit again upheld its original ruling that no reasonable finder of fact could have found Ms. Smith guilty of the crime of assault on a child resulting in death. The Court found nothing in the case of McDaniel v. Brown to convince it to reverse its holding.

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”
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