Criminal Case Law Update, Week Ending 12-17-10

The following criminal cases of note were decided this week:

Washington State Law

Division One Court of Appeals:

State v. Deer: The Court dismissed without prejudice due to the trial court’s error in allowing the State to amend the information in this case after the State had rested its case. The original information in this case had alleged that Ms. Deer had had “sexual contact” with a minor rather than “sexual intercourse,” thus alleging the elements of child molestation rather than child rape. The Court further found that the trial court erred in rejecting a proposed jury instruction which would have required the State to prove beyond a reasonable doubt that Ms. Deer had committed a volitional act, and instead instructed the jury that Ms. Deer had the burden of proving her defense, “that the child had intercourse with the defendant without the knowledge or consent of the defendant” by a preponderance of the evidence. In so doing, the Court ruled, the trial court relieved the State of its burden of providing the actus reas of the crime beyond a reasonable doubt. http://www.courts.wa.gov/opinions/pdf/63737-1.pub.doc.pdf

Division Three Court of Appeals:

State v. Stark: The Court reversed Ms. Stark’s convictions for first degree premeditated murder and conspiracy to commit first degree murder in the shooting death of her estranged husband, from whom she had endured years of abuse before finally escaping the marriage. The Court found that the trial court erred in giving an aggressor instruction, thus eliminating her defense of self-defense under the circumstances of this case that showed that Ms. Stark was hiding in the kitchen when Mr. Stark came over, and that he had charged toward her threatening to kill her when he was served by another person with a restraining order against him, and that Ms. Stark only shot him when he made a move toward a knife on the counter. The Court disagreed with the State’s contention that the restraining order was sufficient provocation for an aggressor instruction, finding that case law has established that spoken words are insufficient, and therefore written words would likewise not be sufficient. The Court further found that the to-convict instruction for the alleged conspiracy in this case failed to name the specific conspirators as alleged in the information, a discrepancy that must be addressed on remand. However, the court found that there were sufficient facts for a new trial, both on the murder and the conspiracy counts. http://www.courts.wa.gov/opinions/pdf/281418.opn.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Newhoff: The Court upheld Mr. Newhoff’s conviction for felon in possession of a firearm, finding that there was a reasonable inference from the testimony showing that Mr. Newhoff was the burglar who was attempting to sell the firearm that he was in fact the person who found and stole it. As there was no clear error in the district court’s finding of fact in this regard, the Court affirmed the conviction. In so doing, the Court rejected Mr. Newhoff’s arguments that there was no eyewitness testimony demonstrating he took the pistol during the burglary, finding that the circumstantial evidence was sufficient. The Court also found that, though the district court’s failure to give an admonition to the jury that they were not to place undue weight on the officer’s testimony after it was read back to them during deliberations at the close of the trial was plain error; it did not affect Mr. Newhoff’s substantial rights and did not warrant reversal. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/16/09-30143.pdf

Roberts v. Marshall: The Court found that the district court did not abuse its discretion in denying Mr. Roberts an evidentiary hearing to determine whether his asserted mental incompetence warranted equitable tolling of the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996. The Court noted that the district court had access to extensive medical records that indicated Mr. Roberts’ relevant mental functions were either “good” or “within normal limits” during the time period for which he sought tolling of the statute of limitations, and that the district court’s conclusion that Mr. Roberts’ mental incompetency was not the cause of his untimeliness was proper, particularly considering that Mr. Roberts managed to file several petitions for post-conviction relief in state court presenting identical arguments to those presented in the federal court during the time for which Roberts seeks equitable tolling. The court found that Mr. Roberts did not carry his burden of establishing that he is entitled to equitable tolling, and his federal petition was therefore barred by AEDPA’s statute of limitations. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/13/08-55901.pdf

In Other News: The Law Offices of Dena Alo-Colbeck is pleased to be able to offer trial preparation services. For a single flat fee, we will prepare all trial paperwork, including suppression motions, motions in limine, jury instructions, and bullet-point summaries of all interviews, reports and statements with direct and cross-examination points. Give us a call for more information or an estimate for your case.

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Law Offices of Dena Alo-Colbeck
“Research and Writing for Washington Lawyers”
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