10 May Criminal Case Law Update, Week Ending 5-2-11
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:
In Re Detention of West: The Court affirmed Mr. West’s commitment as a Sexually Violent Predator (SVP), and denied his motion for a new trial, finding that Mr. West was not prejudiced by the trial court’s evidentiary rulings admitting testimony regarding the SCC’s treatment phases, confinement conditions and community transition programs, finding that the testimony was admissible, and that Mr. West was not improperly prohibited from cross-examining the State’s witness regarding the efficacy of treatment programs at the SCC and presenting evidence about the federal case on the unconstitutionality of the conditions at the SCC. The Court further found that Mr. West was not entitled to discovery of the SVP evaluations done for other persons by the State’s testifying expert witness, Dr. Leslie Rawlings. The Court did find that the trial court should have given a limiting instruction and that it improperly quashed a CR 26 subpoena for Dr. Rawlings’ expert work product for cases where the doctor had testified, but properly quashed that subpoena for cases where he did not testify. The Court found both errors harmless. http://www.courts.wa.gov/opinions/pdf/825688.opn.pdf
In a concurrence, Chief Justice Madsen agreed with the majority’s conclusion, but wrote separately to argue that when CR 26(b)(4) states that its provisions are “[s]ubject to the provisions” of CR 26(b)(5), it means that insofar as provisions in CR 26(b)(5) are different from those in CR 26(b)(4), CR 26(b)(5) controls. It does not mean that if CR 26(b)(5) applies to discovery sought from an expert, then CR 26(b)(4) cannot apply at all. http://www.courts.wa.gov/opinions/pdf/825688.co1.pdf
In a dissent, Justice Sanders (sitting pro tem) argued that the majority permitted inadmissible testimony regarding the SCC and approved of the quashal of Mr. West’s subpoena duces tecum for documents to impeach Dr. Rawlings. The dissent argued that admission of the testimony regarding the SCC was error and was not harmless, and that Mr. West was erroneously precluded from obtaining all of Dr. Rawlings’ evaluation, likewise not harmless error, as it was a violations of Mr. West’s right to present a meaningful defense. http://www.courts.wa.gov/opinions/pdf/825688.no1.pdf
State v. Sims: The Court held that Mr. Sims should be allowed to challenge one particular condition of his sentence that banished him from Cowlitz County, a condition that the State conceded was unconstitutional. In so holding, the Court disagreed with the State’s contention that every part of Mr. Sims’ sentence should be revoked and remanded to the trial court for reconsideration. The Court found that to grant the State’s request would “constitute undue affirmative relief for the State and would unreasonably chill a defendant’s right of appeal.” The Court concluded that the remand should be for the limited purpose of revising the improper condition of Mr. Sims’ sentence. http://www.courts.wa.gov/opinions/pdf/837791.opn.pdf
In a dissent, Justice Stephens, joined by Chief Justice Madsen, argued that this case is about preserving a trial court’s discretion to grant or deny a special sex offender sentencing alternative (SSOSA), not whether the State is entitled to affirmative relief on appeal. The dissent posited that the majority’s focus on RAP 2.4(a) distracts from what should be a straightforward resolution of this case that involves sending Sims back to square one before the SSOSA was imposed, rather than forcing the trial court to retain a sentence it never intended to impose. http://www.courts.wa.gov/opinions/pdf/837791.no1.pdf
Division One Court of Appeals
State v. Njonge: The Court reversed Mr. Njonge’s conviction for second degree murder, finding that the trial court improperly closed the courtroom during a portion of voir dire. Specifically, the court found that the trial court had not conducted a Bone-Club analysis prior to the courtroom closure and had cited space considerations as one of the reasons for the closure, a reason the court found insufficient, particularly when the trial court had not considered less restrictive alternatives before restricting Mr. Njonge’s right to public trial. http://www.courts.wa.gov/opinions/pdf/63869-6.pub.doc.pdf
Division Two Court of Appeals
State v. Notaro: The Court affirmed Mr. Notaro’s conviction for premeditated first degree murder while armed with a firearm. The Court found that there was sufficient evidence to support the finding of premeditation based upon Mr. Notaro’s admissions to planning to kill his victim and his action in going to a house where his victim could be found armed with a firearm and luring the victim into the basement, where he shot him in the head. The Court also found that the trial court did not commit error in allowing police testimony regarding statements Mr. Notaro made during a police interview. http://www.courts.wa.gov/opinions/pdf/39106.6.11.doc.pdf
State v. Curtiss: In this companion case to Notaro, the court affirmed the first degree murder conviction of Mr. Notaro’s co-conspirator, Renee Curtiss. The Court found that Ms. Curtiss’ admission of a taped police confession was proper, that Ms. Curtiss never invoked her right to remain silent and so there could not have been comments on that right, and that opinion testimony, even if improper, could not have affected the jury’s verdict. The Court further found no evidence of prosecutorial misconduct or ineffective assistance of counsel, and found meritless claims in Ms. Curtiss’ statement of additional grounds for review challenging the sufficiency of evidence supporting her conviction, the State’s use of “crowd manipulation” tactics to influence the jury, and the trial court’s authority to impose a 40-year mandatory minimum sentence. http://www.courts.wa.gov/opinions/pdf/39215-1.11.doc.pdf
State v. Hathaway: The Court affirmed Ms. Hathaway’s conviction for unlawful possession of a controlled substance (methamphetamine), finding that law enforcement review of her driver’s licensing records was not a violation of Ms. Hathaway’s privacy rights protected by article 1, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. The Court further found that the evidence was sufficient to sustain the conviction, that the trial court did not err in refusing to give a requested “mere proximity” instruction, and that the elements in the “to-convict” instruction were proper. However, the Court agreed that the trial court exceeded its statutory authority in imposing a $1,604.53 “jury demand fee” at sentencing, and remanded for reduction of the fee to that allowed by statute. http://www.courts.wa.gov/opinions/pdf/40181-9.11.doc.pdf
United States Supreme Court
Bobby v. Mitts: The Court reversed the Sixth Circuit Court of Appeals’ vacation of Mr. Mitts’ death sentence and granted certiorari to consider the question of whether certain jury instructions were valid when Mr. Mitts claimed that they did not allow the jury to consider sentencing alternatives other than the death penalty. http://www.supremecourt.gov/opinions/10pdf/10-1000.pdf
Ninth Circuit Court of Appeals
United States v. Li: The Court reversed the convictions of Mr. Li, Mr. Li, and Mr. Zhong, who were found guilty of attempting to enter the United States at a time or place not designated by immigration officers when the three attempted to travel from the Commonwealth of the Northern Mariana Islands (“CNMI”) to the Territory of Guam by boat. Because both the CNMI and Guam are parts of the United States, the court held that an alien does not “enter[ ] or attempt[ ] to enter the United States” when traveling by boat from the CNMI to Guam. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/02/10-10079.pdf
United States v. Sanchez: The Court reversed Mr. Sanchez’ conviction for possession of a firearm while subject to a restraining order. The Court agreed with Mr. Sanchez that the district court erred as a matter of law law in denying his motion for acquittal, finding that the restraining order in this case could not satisfy the statutory requirement that the underlying court order “by its terms explicitly prohibit[ ] the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.” The Court further held that the district court erred in instructing the jury that the language of the court order need not track the exact language of the statute. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/05/10-10229.pdf
Doody v. Ryan: The Court reaffirmed its vacation of then seventeen-year-old Jonathan Doody’s conviction for nine counts of murder. The Court found that Mr. Doody’s confession to the murders was taken after inadequate and horribly convoluted Miranda warnings and could not be considered voluntary after a thirteen hour interrogation session during which Mr. Doody, then a high-school ROTC student, was repeatedly and relentlessly lectured about telling the truth as the detectives presumed to know it. The court concluded that the interrogation session overbore Mr. Doody’s will and found that state court rulings to the contrary were an unreasonable determination of the facts and an unreasonable application of governing Supreme Court precedent. The Court stood by its earlier rulings despite a Supreme Court vacation and remand of its opinion, finding that the Supreme Court’s holding in Florida v. Powell did nothing to change its opinion.
In a concurrence, Chief Judge Kozinski noted that either the State court’s interpretation of the interrogation or Mr. Doody’s interpretation could be correct, and both interpretations presented convincing arguments, and for this reason he would defer to the State court on this issue. However, the concurrence agreed that the Miranda warnings given to Mr. Doody were patently inadequate and convoluted to the point of being rendered meaningless. In fact, the concurrence argued, the warnings as given were worse than had Mr. Doody been given no warnings at all.
In a dissent, Judge Tallman, joined by Judges Rymer and Klienfeld, argued that the majority had treated the case as if it were a de novo review and had not accorded deference to the State court’s findings. The dissent further argued that Powell reaffirms prior Supreme Court precedent, under which the confession in this case reasonably fits. http://www.ca9.uscourts.gov/datastore/opinions/2011/05/04/06-17161.pdf
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