Criminal Case Law Update, Week Ending 3-11-11

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court:

State v. Hager: The Court reversed a Court of Appeals ruling which concluded that a detective’s statement during trial on Mr. Hager’s first degree child rape charge that Mr. Hager was “evasive” infringed upon Mr. Hager’s right to self-incrimination. The Court found that the statement did not violate that right. The Court agreed that the statement was improper but found that, to the extent that the comment invaded the province of the jury, it was rectified by the trial court’s prompt curative instruction. Therefore, contrary to the decision of the Court of Appeals, the trial court’s denial of Mr. Hager’s motion for a mistrial was not in error. http://www.courts.wa.gov/opinions/pdf/837171.opn.pdf

In his dissent, Justice Sanders noted that precedent dictates that opinion testimony regarding a defendant’s veracity is unfairly prejudicial to the defendant because it invades the exclusive province of the jury. While the majority had conceded the impropriety of the testimony, the dissent disagreed that the testimony did not violate Mr. Hager’s right to a fair trial. The dissent found the majority holding that the curative instruction was sufficient to preserve Mr. Hager’s right to a fair trial problematic on two fronts. First, contrary to the majority holding, the comment should have been presumed prejudicial because the majority did not conclude that it could not have rationally affected the verdict, as required under pertinent case law. Second, the dissent pointed out that the curative instruction may not have been truly curative, as the jury may have interpreted the comment as a description of behavior rather than an opinion of credibility, and thus may have taken it into account in their final verdict. http://www.courts.wa.gov/opinions/pdf/837171.no1.pdf

Division One Court of Appeals:

Detention of Berry: In this partially published opinion, the Court rejected Mr. Berry’s challenge to his commitment as a sexually violent predator on the grounds that an expert’s testimony was admitted into trial without a prior Frye hearing. The Court found that the evidence implicated no novel scientific procedure or principle, and therefore no Frye hearing was required. In the unpublished part of the opinion, the Court rejected Mr. Berry’s argument that he had an irreconcilable conflict with his assigned counsel, and substitute counsel should have been assigned. http://www.courts.wa.gov/opinions/pdf/64226-0.pub.doc.pdf

Division Two Court of Appeals:

Personal Restraint Petition of Monschke: Mr. Monschke asked the Court to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. In support of his petition, Mr. Monschke argued that 1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Mr. Monschke’s defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Mr. Monschke’s codefendant Tristan Frye based on a personal friendship between the elected prosecutor and Mr. Frye’s defense attorney and to allow Mr. Frye to testify against him, knowing that she would commit perjury. The court found that Mr. Monschke failed to establish prejudice arising from constitutional error, a fundamental defect which inherently results in a complete miscarriage of justice or the existence of material disputed issues of fact, and denied his personal restraint petition. http://www.courts.wa.gov/opinions/pdf/38365-9.11.cor.doc.pdf

Detention of Durbin: The Court affirmed Mr. Durbin’s commitment as a sexually violent predator, disagreeing with his contentions that (1) the State had no authority under former RCW 71.09.030 (2008) to file an SVP petition against him in Clark County because he had no Washington convictions for sexually violent crimes; (2) the current version of RCW 71.09.030, Laws of 2009, ch. 409, § 3, cannot be applied retroactively to justify filing the State’s petition in Clark County; (3) the trial court erred when it determined that the acts underlying his Clark County conviction, for which he was incarcerated when the State filed the SVP petition, would have qualified as a recent overt act because the acts were over five years old by the time the State filed its petition in Clark County; and (4) the State did not have jurisdiction to file an SVP petition in Clark County because he had been unlawfully confined under an incorrectly filed petition in Thurston County. http://www.courts.wa.gov/opinions/pdf/39454-5.11.doc.pdf

State v. Davis: The Court reversed the trial court’s order denying him credit for time served while serving part of a Drug Offender Sentencing Alternative (DOSA) sentence. The Court held that the trial court erred in modifying his judgment and sentence to strike the DOSA language after he was administratively terminated from DOSA by the Washington State Department of Corrections, finding that the modification was not a clerical change, as the intention of the parties and the trial court had originally been to provide for a DOSA sentence. The Court reasoned that the revocation of the DOSA sentence court not have been a factor in the trial court’s initial sentencing decision, and therefore striking the DOSA language four years later could not be found to be a correction of a clerical error. As the change likely misled the DOC as to the amount of time Mr. Davis should have remained in custody, the language should not have been removed, and Mr. Davis should have been given credit for the time he already served on the DOSA sentence. http://www.courts.wa.gov/opinions/pdf/40240-8.11.doc.pdf

Division Three Court of Appeals:

State v. Veliz: Mr. Veliz appealed his conviction for custodial interference in the first degree after taking his four-year-old daughter out of the country for four months in violation of his wife’s rights under a protection order. Mr. Veliz argued that the protection order did not constitute a court-ordered parenting plan within the meaning of the felony custodial interference statute, that even if such an order did in fact constitute a court-ordered parenting plan, the order was improperly completed and could not support the conviction, and that the evidence was insufficient to convict him of the offense during the period identified in the information. Mr. Veliz also argued that the trial court committed reversible error in admitting irrelevant and unduly prejudicial evidence. The Court held that the felony custodial interference statute encompasses any valid court order that establishes a minor child’s parents’ rights to residential placement and/or visitation, including the protection order issued in this case. Therefore, the Court found the evidence, based on that order, was sufficient to establish that Mr. Veliz committed the offense during the charging period, and found that the trial court did not abuse its discretion in admitting the challenged evidence of Mr. Veliz’ use of an alias while he was in flight with this child. http://www.courts.wa.gov/opinions/pdf/284956.opn.doc.pdf

State v. Yallup: The Court affirmed Mr. Yallup’s conviction for felony DUI, finding that the State is allowed to enforce implied consent laws against an enrolled member of the Yakama Nation driving on state highways on the reservation. The Court reasoned that the implied consent statute is a primarily criminal statute rather than a civil regulatory statute, and noted that the right to travel guaranteed by the treaty with the Yakama Nation did not exempt Mr. Yallup from the criminal statutes governing use of the roadways, or from the licensing and non-impaired driving requirements under state law. Therefore, the Court concluded, the treaty did not bar the instant prosecution. http://www.courts.wa.gov/opinions/pdf/280403.opn.doc.pdf

State v. Michael: The Court reversed one count of unlawful firearm possession and affirmed a second count of unlawful firearm possession, and two misdemeanor counts. The first charge was reversed on the agreement of the parties that the count was mischarged. The Court affirmed the remaining counts, disagreeing with Mr. Michael’s claim that his trial attorney provided ineffective assistance, finding that the claim was based on counsel’s failure to seek a jury instruction that had never before been applied in the context of an unwitting possession defense, and was a trial tactic and not ineffective assistance. http://www.courts.wa.gov/opinions/pdf/288773.opn.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

United States v. Kohring: The Court vacated and remanded for a new trial three public corruption charges against Mr. Kohring. The Court concluded that the government had breached its disclosure obligations under Brady v. Maryland and Giglio v. United States in failing to disclose favorable and material evidence to Mr. Kohring. Mr. Kohring, a former member of the Alaska State House of Representatives, was convicted on three counts of public corruption felonies based on allegations that had taken money from Bill Allen of VECO Corporation in exchange for legislative acts benefitting VECO. After conviction and on remand to the district court, the government disclosed, for the first time, several thousand pages of documents, including “FBI 302 reports,” undated and dated handwritten notes from interviews with Mr. Allen and Rick Smith, another VECO executive, e-mails, various memoranda, and police reports. Specifically, the newly-disclosed information included: (1) evidence that Mr. Allen had been or was still being investigated for sexual misconduct with minors, (2) evidence that cast doubt on Mr. Allen’s memory and the amount of money paid to Mr. Kohring, (3) evidence that the payments were made out of friendship and pity rather than a corrupt quid-pro-quo relationship, (4) evidence of inconsistent statements made by Smith, as well as a questionable relationship he had with an investigating FBI agent, and (6) evidence that a government witness thought Mr. Kohring was not corrupt. The Court disagreed with the district court assessment that the evidence was not material, but did not find sufficient evidence to conclude the prosecution “acted flagrantly, willfully, and in bad faith,” and so remanded for a new trial rather than dismissing the charges.

In a partial concurrence and partial dissent, Judge Fletcher agreed with the reasoning in the majority’s opinion that established that the prosecution withheld and suppressed material which was favorable to the defense, and that these suppressions undeniably prejudiced Mr. Kohring. However, Judge Fletcher argued that this case exemplifies “flagrant prosecutorial misconduct,” and that this case should have been dismissed with prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/08-30170.pdf

United States v. Eriksen: The Court affirmed convictions of Defendants-Appellants Sigmund Eriksen and Raymond Eriksen of two counts of Embezzlement or Conversion of the Funds of an Employment Benefit Plan, and one count of Making False or Misleading Statements in an Employee Retirement Income Security Act of 1974 (ERISA) Benefit Plan Document that Federal Law Requires to be Kept. The Court found that there was sufficient evidence to support the convictions, specifically holding that the government had established that the plans in question contained 401(k) components, and therefore the employer could not modify the plan by withholding contributions. The Court further held that the fact that from 2002 until their detection, the Ericksens never contributed to the plan, instead using employee contributions and withholding to pay business expenses, constituted a willful withholding of employee funds. Finally, the Court held that the fact that the defendants repaid the plan was immaterial to the proof of the charges in this case, as it was the initial withholding of money that constituted the crime. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/09/10-30056.pdf

United States v. Bonilla: The Court vacated and remanded Mr. Bonilla’s conviction upon a plea of guilty to possession of an unregistered firearm and to being a felon in possession of a firearm. The Court found that counsel’s failure to advise Mr. Bonilla that his plea was grounds for deportation, due to her mistaken belief that Mr. Bonilla is a United States citizen, was reasonable grounds for him to have declined to enter such a plea. Thus, the Court concluded, the district court’s refusal to allow him to withdraw the plea when he was informed for the first time at the plea hearing that he would be deported on the basis of the plea was an abuse of discretion. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-10307.pdf

United States v. Regalado: The Court held that the government in this case had 90 days to file a forfeiture complaint under the pertinent statute. In so holding, the Court disagreed with Mr. Regalado’s argument that the government should have filed the complaint within sixty days, finding that Mr. Regalado was not entitled to this time limit because he did not file a cost bond. The Court also noted that the regulation imposing the sixty day time limit was arguably no longer in effect because the effectuating statute had been repealed.

In a concurrence, Judge Thomas agreed that the government had ninety days to file a claim in this case, and that the subsequently filed claim was in fact timely filed. However, the concurrence argued that the filing of a cost bond was not an issue in this case. Rather, the concurrence argued, the regulation’s 60-day time limit plainly conflicts with the statute; thus, the regulation is ultra vires. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/11/09-15821.pdf

United States v. Williams: The Court held that a sentence of a life term of supervised release does not constitute “cruel and unusual” punishment under the Eighth Amendment. The Court pointed out that Mr. Williams had been convicted of sexual assault of a minor in the past, and combined with the current child porn conviction, showed a significant likelihood of re-offense. The Court likewise reasoned that child sex offenders in general have a high recidivism rate. For those reasons, the district court did not err in sentencing Williams to a fifteen-year sentence, followed by a life term of supervised release. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/07/10-30084.pdf

Huston v. Schomig: Mr. Huston appealed from an evidentiary hearing on remand of this case, the purpose of which was “to determine whether a conflict of interest adversely affected [Houston’s] counsel’s performance and, if so, whether there is a reasonable probability that the result of the trial would have been different in the absence of that effect.” The Court on remand found that Mr. Huston’s representation was not adversely affected by the fact that his attorney was part of the same public defender’s office that had represented a key witness against Mr. Huston in a previous case. On appeal, the Court found no clear error in the district court’s findings, concluding that they were well supported by the record and the law, we affirm. http://www.ca9.uscourts.gov/datastore/opinions/2011/03/08/10-15048.pdf

United States Supreme Court:

Skinner v. Switzer: In an opinion authored by Justice Ginsberg and joined by Justices Roberts, Scalia, Breyer, Sotomayor, and Kagan, the court held that a convicted state prisoner seeking DNA testing of crime scene evidence may assert that claim in a civil rights action under 42 U. S. C. §1983. Mr. Skinner was sentenced to death in Texas for murdering his girlfriend and her sons. His defense was that he had been physically incapable of the murders due to extreme intoxication, and requested that evidence that had been left untested at the trial now be tested under a new Texas law, stating his belief that the evidence would hold the DNA of his girlfriend’s uncle, whom he had identified as the likely perpetrator. The requests were twice denied, first on the ground that Mr. Skinner had not shown that he “would not have been convicted if exculpatory results had been obtained through DNA testing,” and the second on the ground that Mr. Skinner had not shown that the evidence was not previously tested “through no fault” on his part. Mr. Skinner next filed the instant federal action for injunctive relief under §1983, alleging that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. The Supreme Court reversed the Fifth Circuit denial of the complaint for failure to state a claim, which had reasoned that post conviction requests for DNA evidence are cognizable only in habeas corpus, not under §1983, finding that there is federal-court subject-matter jurisdiction over Mr. Skinner’s complaint, and the claim he presses is cognizable under §1983.

Justice Thomas, joined by Justices Kennedy and Alito, dissented, disagreeing that Mr. Skinner’s claim was cognizable under §1983. While Justice Thomas accepted that the issue had been left open by prior case law, he argued that the Court has in the past struggled to limit §1983 and prevent it from intruding into the boundaries of habeas corpus, and this case calls for another such limit: “due process challenges to state procedures used to review the validity of a conviction or sentence.” http://www.supremecourt.gov/opinions/10pdf/09-9000.pdf

Wall v. Kholi: In an opinion written by Justice Alito, and joined by Justices Roberts, Kennedy, Ginsberg, Thomas, Breyer, Sotomayor, Kagan, and joined by Justice Scalia except as to footnote three, the Court held that the phrase “collateral review” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) means judicial review of a judgment in a proceeding that is not part of direct review. In this case, Mr. Kholi was convicted of ten counts of first-degree sexual assault and sentenced to consecutive life terms. Mr. Kohli filed a direct appeal as well as a motion to reduce his sentence and a post-conviction relief motion, both of which were denied. He did not file the instant federal habeas petition under 11 years after finalization of his conviction, ten years after such petition should be filed in the normal course. The District Court dismissed the petition as untimely, and the Fifth Circuit reversed, finding the intervening period was tolled by Mr. Kohli’s sentencing motions. Under the Court’s holding, which gave the undefined term its ordinary meaning, both Mr. Kohli’s motion to reduce his sentence and his post-conviction relief motion qualified as collateral review motions, as both sought collateral remedies and both called for review of the sentence.

In his partial concurrence, Justice Scalia agreed with the Court’s conclusions but stated his opposition to footnote three of the Court’s opinion, which declines to decide whether Mr. Kohli’s motion to reduce his sentence sought direct review. http://www.supremecourt.gov/opinions/10pdf/09-868.pdf

Notices

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