Criminal Case Law Update, Week Ending 11-5-10

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 One Court of Appeals:

State v. Jordan: The court upheld Mr. Jordan’s conviction and sentence, holding that his Texas conviction for voluntary manslaughter was properly included in his offender score. The Court reasoned that comparability of an out of state conviction depends upon the elements of the crime, not the available defenses. Thus, the fact that Texas and Washington have differing self-defense laws did not render the Texas conviction incomparable to one in Washington State. The court likewise found no merit in Mr. Jordan’s remaining claims of prosecutorial misconduct, double jeopardy, his competency claims, or the court’s refusal to instruct the jury on self-defense or lesser included offenses.

State v. Wilson: The court affirmed Mr. Wilson’s conviction for attempted rape of a child in the second degree. The Court was not persuaded by Mr. Wilson’s argument that he should have been charged with the more specific crime of commercial sexual abuse of a minor, reasoning that commercial sexual abuse of a minor is not concurrent with the crime of rape of a child in the second degree, as every violation of the commercial sexual abuse statute would not necessarily constitute a violation of the statute prohibiting rape of a child in the second degree. The court further found that sufficient evidence supported the proposition that Mr. Wilson had taken a substantial step toward the commission of the crime of rape of a child in the second degree when he communicated this intent with a person he believed to be a 13-year-old female, and then traveled to a motel and rented a room where he was to meet with this person.

State v. Mullins: The court affirmed Mr. Mullins’ conviction for murdering his wife, finding that his right to counsel was not violated when, despite previously having invoked his right to counsel and being reminded of that invocation by detectives upon arrival at the police station, Mr. Mullins began spontaneously making a series of incriminating statements during booking. The court found that, under the circumstances of this case, the mandate of CrR 3.1 that a person in custody be placed in communication with a lawyer at “the earliest opportunity” was not violated when Mr. Mullins was not placed in contact with counsel immediately upon his arrival at the jail. The Court also rejected Mr. Mullins’ contention that trial counsel was ineffective for not requesting lesser included offense instructions.
Division Two Court of Appeals:

State v. Reichert: The court reversed and remanded Mr. Reichert’s conviction for unlawful possession of marijuana with intent to manufacture or deliver. The Court held that detectives could accompany a DOC employee when he visited Mr. Reichert’s residence to determine whether he was living at the place he had reported to DOC as required by his probation, and that under the facts of this case, there was nothing to support Mr. Reichert’s claim that the detectives used the DOC employee as a pretext to evade the Fourth Amendment Warrant requirement. However, the Court held that the trial court should have evaluated the evidence to determine whether the DOC officer had a reasonable suspicion that Mr. Reichert had violated his probation by residing at an undisclosed location, thus allowing a search of his person, and, second, should have determined whether the officer had probable cause to believe that Mr. Reichert resided at the residence searched so as to allow a search of that location. The Court thus remanded for an evidentiary hearing using the correct standard for a search of the residence.

State v. McChristian: The Court disagreed with Mr. McChristian’s contention that the prosecutor committed misconduct during closing arguments by misstating the law on accomplice liability and accordingly lowering the State’s burden of proof for the charged crime of first degree assault, finding that the closing argument was consistent with the law on accomplice liability. The Court further found that the trial court properly imposed a 60-month mandatory minimum sentence, finding meritless Mr. McChristian’s claims that the trial court did not enter findings of fact supporting the mandatory minimum term, that the sentence violated his Sixth Amendment right to a jury trial, that the State did not allege a mandatory minimum sentence in its charging documents, and that insufficient evidence supported the sentence. The Court found that the trial court’s oral findings were sufficient to support the sentence and did not violate Mr. McChristian’s Sixth Amendment rights. The Court also found that the charging document alleged facts sufficient to inform Mr. McChristian that he may be subject to a mandatory minimum term, and sufficient evidence supported his sentence.

Federal Law

United States Court of Appeals for the Ninth Circuit:

United States v. Wright: The Court affirmed in part, reversed in part, and remanded Mr. Wright’s conviction and sentence for transportation and possession of child pornography. Specifically, the Court held that punishing the transmission of material in interstate or foreign commerce requires that material to cross state lines, and rejected the government’s contention that use of the internet, standing alone, satisfies this requirement when it is otherwise clear that the imagines in question did not cross state lines. The Court likewise rejected the government’s argument that the mere fact of Mr. Wright’s connection to an interstate internet network that enabled the initial download of the images satisfied the interstate commerce requirement. The court thus reversed Mr. Wright’s conviction on this count. The Court also reversed the district court’s denial of Mr. Wright’s motion to suppress pre-trial statements and remanded, asking the district court to enter specific findings of fact and conclusions of law regarding its decision. The court found no error in the district court’s refusal to allow him to put into evidence 404(b) evidence regarding his roommate, whom he blamed for the crimes charged, finding that the evidence would have been merely cumulative. The court further found that while the prosecutor made certain comments that did amount to misconduct, they were mild and mitigated by curative instructions, and thus constituted harmless error. The Court found that Mr. Wright had sufficient access to the mirror image hard drive, and that the access requirement does not extend to unlimited access at multiple facilities. The Court also found that the jury instructions properly instructed the finder of fact that Mr. Wright had to know the images were on his computer in order to possess them. Finally, the court found that there was no cumulative error depriving Mr. Wright of a fair trial, and that his sentence was proper.

In a separate partial concurrence, Judge Hug argued that the entire conviction and sentence should be upheld because the district court’s failure to enter findings of fact and conclusions of law regarding the denial of the suppression motion was not plain error and still permitted appellate review of the proceedings.

United States v. Leal-Felix: The court affirmed Mr. Leal-Felix’s conviction for unlawful re-entry after deportation, finding that the two convictions for traffic citations, for which Mr. Leal-Felix was jailed, were properly counted as criminal convictions for purposes of his offender score.

Judge Bennett dissented, arguing that the district court should be reversed and, and that the majority should have held that the word “arrest” unambiguously does not include “citation.” Alternatively, the dissent argued that even if the word arrest as used in the guidelines in this case is ambiguous, the policies, purposes and overall scheme of the Guidelines require “arrest” to be interpreted as not including “citation,” particularly in light of the Rule of Lenity.

United States v. Lazarenko: Former Ukrainian Prime Minister Pavel Lazarenko challenged a restitution order directing him to pay over $19 million to his co-conspirator in this matter. The Court held that in the absence of exceptional circumstances, a co-conspirator cannot recover restitution. As there were no exceptional circumstances here, the restitution order was vacated.

United States v. Hantzis: The Court affirmed Mr. Hantzis’ conviction, finding that the district court conducted an adequate Faretta colloquy and that Mr. Hantzis knowingly and intelligently
waived his right to counsel. The Court further held that the district court was not required to engage in additional Faretta colloquies at the subsequent evidentiary hearing or at sentencing in Mr. Hantzis’ case because no significant changes in circumstance occurred. Finally, the Court held that the district court did not err in declining to appoint new counsel for counsel for Hantzis at his sentencing.

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”
[email protected]

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