Criminal Case Law Update, Week Ending 12-24-10

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:

State v. Wilson: The Court held that anticipatory offenses included in an offender score calculation under RCW 9.94A.525(4) must themselves be felonies in order to be calculated as such as part of the offender score calculation. Here, the trial court had erroneously included as a felony what was actually a conviction for a gross misdemeanor. In upholding the decision, the Court of Appeals reasoned that the anticipatory offense would have been a felony if completed. The Supreme Court found this to be in error and held that such a mistake is a legal mistake and therefore the petitioner is entitled to be resentenced under the correct offender score.

Division One Court of Appeals:

State v. Burns: The Court held that, when the State failed to hold a restitution hearing within 180 days of sentencing as required by the statute to determine the amount of restitution to be paid by Mr. Burns as a result of certain uncharged crimes, the trial court did not have statutory authority to determine or modify the amount of restitution after the expiration of the 180 day time period allowed for restitution to be set under RCW 9.94A.753(1). The Court reversed the restitution order.

Division Two Court of Appeals:

In Re Detention of Alsteen: The Court affirmed a jury verdict finding that Mr. Alsteen is a sexually violent predator who should be civilly committed under the “Sexually Violent Predator Act,” (SVPA) chapter 71.09 RCW. The Court held that the jury instructions were an accurate statement of the law and permitted the parties to argue their respective theories of the case to the jury, and did not prejudice Mr. Alsteen by improperly focusing on past crimes to which he had stipulated. Because the instructional challenge failed, the Court affirmed Mr. Alsteen’s commitment as a sexually violent predator.

Federal Law

Ninth Circuit Court of Appeals:

Pulido v. Hedgpeth: The Court found that erroneous jury instructions in Mr. Pulido’s state murder trial were not prejudicial as a matter of federal Constitutional law. The Court disagreed with Mr. Pulido’s contentions that the jury instructions on aiding and abetting felony murder and robbery, read together, impermissibly allowed him to be convicted of felony murder even if he did not form the intent to aid and to abet the robbery until after the murder. The Court found that despite a typographical error in the special circumstance instruction, which used the word “or” instead of “and” between its two prongs, thus enlarging the scope of activity that would qualify as robbery felony murder under the special circumstance. However, the court concluded that the instruction did not have substantial or injurious effect or influence in determining the jury’s verdict.

Judge Thomas dissented, arguing that the law was explained improperly in this case, and it could not be reasonably concluded that the error did not substantially and injuriously affect the verdict.
The dissent reasoned that the instructions allowed for a conviction for felony-murder and a finding of special circumstance robbery-murder even if Mr. Pulido became a knowing participant only after the robbery and shooting were completed. The record left the dissent with “grave doubt” as to whether the erroneous instructions had a substantial and injurious effect on the jury’s verdict.

United States v. Alvarez-Perez: The Court found that Mr. Alvarez-Perez was prosecuted for being a deported alien found in the United States in violation of the Speedy Trial Act (STA). The Court found that Mr. Alvarez-Perez’ trial was held outside the permitted 70-day period. However, because the government exceeded speedy trial by just two days, Mr. Alvarez-Perez was accused of a serious offense, there was no showing of governmental bad faith, and no showing that Mr. Alvarez-Perez would be prejudiced by a re-trial, the Court dismissed the action without prejudice.

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

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.

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.

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.

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.

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.

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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