Criminal Case Law Update, Week Ending 12-3-10

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. Siers: Reasoning that, under State v. Powell, the State must include in the information any aggravating factor it intends to prove for purposes of seeking an exceptional sentence above the standard range, the Court concluded that when the state presents an uncharged aggravator to the jury, the defendant is entitled to dismissal of the underlying criminal charge; the usual remedy for a deficient information. The Court thus dismissed without prejudice.

In his dissent, Judge Dwyer argued that there was no error, no prejudice to Mr. Siers, and the remedy imposed was a total windfall, as Mr. Siers was constitutionally convicted. The dissent argued that the information filed supported the conviction and sentence and that the dismissal was undeserved.

Division Two Court of Appeals:

State v. Louthan: The Court found probable cause to arrest Mr. Louthan for driving while under the influence of a controlled substance when there was evidence that Mr. Louthan’s pupils were fixed, he handed over a tax return insisting it was his insurance, and the officer observed what he believed to be drug paraphernalia in Mr. Louthan’s vehicle. The Court declined to address the subsequent search of Mr. Louthan’s vehicle, finding that he failed to object to the scope of that search incident to his arrest, and had therefore waived that issue.

In a partial concurrence/partial dissent, Judge Bridgewater agreed that the arrest was lawful, but argued that Mr. Louthan should have been allowed to raise the issue of the search incident to arrest, and that search was illegal under Patton and Valdez.

State v. Thomas: The court applied State v. Hall and agreed with Mr. Thomas that his multiple calls to a single witness should be treated as a single unit of prosecution for double jeopardy purposes, rather than the eight counts of witness tampering with which he was charged. The Court concluded that Mr. Thomas’ numerous calls to a witness to persuade her to recant her testimony was a continuing course of conduct aimed at the same witness in a single proceeding and amounts to one unit of witness tampering.

In her concurrence, Judge Quinn-Britnall agreed that in this case Mr. Thomas should be sentenced to only a single unit of prosecution, however, she wrote separately to caution against extending the Hall ruling to cases that contain substantially different facts.

State v. Oakley: The Court granted a motion to publish this case in part. The newly published portion of the decision held that there was sufficient evidence to support Mr. Oakley’s convictions for drive-by shooting with a firearm enhancement, but that the trial court erred in ordering him to pay restitution for damages caused by uncharged acts, and there was no casual connection between the charged crimes and damages incurred by the victim.

State v. Johnson: The Court concluded that the prosecutor’s comments in closing arguments misstating the reasonable doubt standard and undermining the presumption of innocence were so flagrant and ill-intentioned that they could not have been cured by an objection and an instruction. Specifically, the prosecutor in this case, when discussing the reasonable doubt standard, stated:

What that says is “a doubt for which a reason exists.” In order to find the defendant not guilty, you have to say, “I doubt the defendant is guilty and my reason is I believed his testimony that he just borrowed that . . . sweatshirt . . . and he didn’t know that the cocaine was in there, and he didn’t know what cocaine was.” And then you have to also believe that either he really didn’t hear the lights and sirens or that Officer Thiry really forgot to turn them on and that a lot of those events didn’t really happen or more events that didn’t. To be able to find reason to doubt, you have to fill in the blank, that’s your job.

Further, in reference to the “abiding belief” portion of the reasonable doubt standard, the prosecutor stated:

I like to look at abiding belief and use a puzzle to analogize that. You start putting together a puzzle and putting together a few pieces, and you get one part solved. So with this one piece, you probably recognize there’s a freeway sign. You can see I-5. You can see the word “Portland” from looking in the background. You may or may not be able to see which city that is, but it is probably near one that is on the I-5 corridor. You add another piece of the puzzle, and suddenly you have a narrower view. It has to be a city that has Mount Rainier in the background. You can see it. It can still be Seattle or Tacoma, or if you weren’t familiar, you might think that mountain might be Mt. Hood, and it could be Portland. You add a third piece of the puzzle, and at this point even being able to see only half, you can be assured beyond a reasonable doubt that this is going to be a picture of Tacoma.

Division Three Court of Appeals:

State v. Young: The court affirmed Mr. Young’s convictions for two counts of second degree murder, one count of vehicular assault, and one count of second degree theft. The court disagreed with Mr. Young’s contention that there was insufficient evidence to support the convictions, and concluded that the evidence, which included testimony that Mr. Young was driving at excessive speeds (up to 85 mph), swerving in and out of traffic, running stop signs and red lights, driving into an oncoming lane of traffic, and running a red light without any attempt to slow o r stop, was overwhelming evidence of recklessness, particularly in light of Mr. Young’s own testimony that he knew he was running away from police and why. The Court found that sufficient evidence allowed the jury to conclude beyond a reasonable doubt that Mr. Young acted willfully and intentionally by driving “in a rash or heedless manner, indifferent to the consequences” when he attempted to elude police.

Federal Law

United States Court of Appeals for the Ninth Circuit:

United States v. Milovanovic: The court held that honest services mail fraud does not require proof of fiduciary relationship, nor proof of damages to the money of property of the victim, thus extending the crime to a case where, as here, the defendants used mail fraud to dishonestly obtain commercial driver’s licenses. However, the Court found that five limitations apply to the crime: (1) There must be a legally enforceable right to have another provide honest services; (2) the only services which provide a predicate for fraud are those whose value depends on their being performed honestly; (3) there must be intent to defraud; (4) the scheme must use fraud – that is, misrepresentation or concealment of a material fact; and (5) the mails must be used to further the scheme.

In his dissent, Judge Fernandez argued that the indictment in this case failed to sufficiently plead the crime of honest services mail fraud, as it failed to allege the kind of heightened duty to DOL that would suffice to raise the defendants “from the status of miscreants to the status of federal defendants.”

United States v. Bush: The Court affirmed Mr. Bush’s conviction and sentence on twenty-seven counts of fraud and money laundering. The court found that although the provisions of United States v. Santos and its progeny, which require the government to prove that money-laundering transactions involve the “profits” of criminal activities, apply to the money laundering charges at issue in this case, such a finding provides no relief to Mr. Bush “because his money-laundering and fraud offenses do not “merge” as the crimes in Santos did.”

Maxwell v. Roe: The Court remanded with instructions to the district court to grant Mr. Maxwell’s habeas claim and grant him a new trial or release him. In so holding, the Court found that Mr. Maxwell was originally convicted on testimony of a Mr. Storch, one of the “most infamous jailhouse informants in Los Angeles history.” The Court noted that Mr. Storch had a propensity to go after high profile cases and the evidence in this case demonstrated that Mr. Storch likely provided false testimony in this matter. The Court therefore concluded that the state court’s finding that Mr. Storch did not give false testimony was an unreasonable determination of the facts in light of the evidence. Further, the Court concluded that the false testimony affected the jury’s verdict, and that Mr. Maxwell was convicted on the basis of false and material evidence regarding the deal Mr. Storch received in exchange for his testimony, as well as evidence regarding Mr. Storch’s prior informant history, in violation of his due process rights, and that the Court withheld material evidence in violation of Brady.

United States v. Lightfoot: The Court affirmed Mr. Lightfoot’s sentence for drug and firearms convictions, finding that Mr. Lightfoot’s prior behavior provided the district court with every reason to be concerned about his propensity for recidivistic behavior upon his release from prison, and the district court therefore did not abuse its discretion when it refused to reduce his sentence under the reduced guidelines range.

United States v. Johnson: The Court affirmed in part and reversed in part Mr. Johnson’s sentence on drug related charges, finding that, although his plea agreement waived his right to appeal any sentence of the district court, provided that sentence was constitutional, the supervised release condition forbidding association with persons associated with the Rollin’ 30’s gang was plain error. The Court vacated that provision of the sentence and remanded for further consideration regarding whether substitute language would be appropriate. The Court otherwise affirmed the exceptional sentence in this case.

Douglas v. Jacquez: The Court found that the district court exceeded its habeas powers when it directed the state court to modify Mr. Douglas’ sentence under a different section of the arson statute than that under which he was originally convicted. However, the Court found that double jeopardy was not implicated were the state court to modify the sentence of its own accord. The court vacated the order of the district court and remanded with instructions to grant Mr. Douglas a conditional writ of habeas corpus on the arson count only.

In his dissent, Judge Graber argued that granting only a conditional writ of habeas corpus so that the state court may alter Mr. Douglas’ conviction to reflect a lesser-included offense (one on which the jury was never instructed) violates Mr. Douglas’ Double Jeopardy rights. Because there was insufficient evidence to support Mr. Douglas’ conviction on the greater offense, in the circumstances the dissent argued that the proper remedy is an unconditional writ of habeas corpus.

United States v. Steel: The Court dismissed Mr. Steel’s interlocutory appeal of his claims at the district court level that a re-trial on one of the charges brought against him would violate double jeopardy as there had been insufficient evidence to support the charge in the first trial. The Court found that Mr. Steel’s double jeopardy claim was not colorable and the Court therefore lacked interlocutory jurisdiction.

Gollehon v. Mahoney: The Court affirmed the district court’s decision denying Mr. Gollehon’s motion for summary judgment and dismissing his habeas petition. In so doing, the Court determined that Mr. Gollehon had fair notice that the offense of aiding and abetting a deliberate homicide, or committing homicide by accountability in Montana is a death-eligible offense, and the state court’s conclusion to that effect is far from a “radical and unforeseen departure from former law, but rather, a perfectly logical extension of it.”

United States Supreme Court:

Los Angeles County v. Humphries: In this §1983 claim, Mr. and Mrs. Humphries, who had been exonerated of accusations of child abuse claims in California, but whose names would nevertheless appear on the Child Abuse Central Index for the next ten years, were allowed to bring suit against the county under the “policy or custom” requirement. The Court held that this requirement, under which “local governing bodies . . . can be sued directly under§1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes” a policy or custom, applied prospectively as well as retroactively. The Court thus overturned the summary judgment entered by the Ninth Circuit, which had created an exception to the “policy or custom” requirement for prospective cases. Justice Breyer delivered the opinion of the court, in which all other justices joined except Justice Kagan, who took no part in the deliberations.

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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