Criminal Case Law Update, Week Ending 7-22-11

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

Washington State Law

Washington State Supreme Court

Detention of D.F.F.: The Court held that the Superior Court Mental Proceeding Rule 1.3, which provides involuntary commitment proceedings “shall not be open to the public, unless the person who is the subject of the proceedings or his attorney files with the court a written request that the proceedings be public,” violates the right to open administration of justice under article I, section 10 of the Washington Constitution. The Court reasoned that MPR 1.3 automatically closes involuntary confinement proceedings to the public without requiring the court to make the constitutionally mandated determination whether closure is permissible under article I, section 10. In so holding, the Court reasoned that the remedy proposed by the State, to provide a transcript of a closed proceeding, “falls far short of guaranteeing open justice.” The court remanded for a new proceeding.

In a dissent, Chief Justice Madsen agreed that MPR 1.3 runs afoul of article I, section 10 of the Washington State Constitution. However, the Chief Justice disagreed that the appropriate remedy in this case is a new trial. The dissent reasoned that the harm resulting from the closure of D.F.F.’s commitment hearing fell not to D.F.F. but to the absent public. The dissent argued that, “[b]because D.F.F. declined to exercise her explicit right under MPR 1.3 to request an open trial, she cannot demand a new trial on grounds that the ensuing closure violated her own article I, section 10 rights. Nor can she seek a new trial on behalf of the public.” Therefore, the dissent argued, the appropriate remedy is the release of transcripts, not a new trial.

State v. Lormor: The court held that, under the facts of this case, the removal from the courtroom of one person, in this case the defendant’s young daughter, was not a closure of proceedings in violation of the right to public trial. Rather, the Court found, such action is instead an aspect of the court’s power to control the proceedings. The Court thus rejected under the facts in this case, the Court of Appeals’ holding that embraced a trivial standard in regard to court closures. The Court reasoned that a trial court has the inherent, as well as statutory, power to remove disruptive spectators from the courtroom. The use of that power is reviewable for abuse of discretion. In this case, the trial court judge gave reasons on the record for the removal, the justification was not manifestly unreasonable or based on untenable grounds, and was not an abuse of discretion.

Division Two Court of Appeals

State v. E.K.P.: The Court upheld E.K.P.’s conviction for minor in possession, finding that the juvenile court properly denied her motion to suppress evidence seized in a warrantless search of her backpack. The Court disagreed with E.K.P.’s contention that the juvenile court should have applied the Aguilar-Spinelli test to the informant who claimed she may have alcohol in her backpack, which tip led to a search by school administrators. The Court reasoned that searches of students conducted by school officials are not held to the same standard as those by police officers. A school teacher or administrator need only have “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school” to conduct a warrantless search of student property. The Court held that the proper standard was applied and that administrators had reasonable grounds to suspect that a search of E.K.P.’s backpack would turn up evidence of alcohol possession.

Division Three Court of Appeals

State v. Bea: In this partially published opinion, the court affirmed Mr. Bea’s conviction for first degree assault, holding that the trial court properly gave the jury a first aggressor instruction when the facts showed that, while Mr. Bea’s victim started the argument, he had asked Mr. Bea to leave his home and Mr. Bea, rather than going, first locked himself in a bathroom where he wreaked damage on the room and then, when the door was forced open, Mr. Bea went into the kitchen, grabbed a knife, and stabbed his victim. The Court further found that the deadly weapon verdict form was proper and that the prosecutor did not misstate the law during closing. With regard to the first aggressor instruction, the Court observed that the State need only provide some evidence that Mr. Bea was the aggressor, which it did in this case.

State v. Diluzio: The Court reversed Mr. Diluzio’s conviction for two counts of possession of a controlled substance. The Court found that there was no probable cause for the stop when a police officer with 13 years of experience pulled over Mr. Diluzio’s vehicle based on the officer’s suspicion that Mr. Diluzio was soliciting prostitution. The officer drew the conclusion based upon the fact that the area was known for prostitution and a female pedestrian got into Mr. Diluzio’s car. There was no informant, the officer did not see money exchange or overhear a conversation between the two, and neither party was known to be involved in prostitution. The drugs were seized in a search incident to arrest.

In a dissent, Judge Korsmo argued that both the veteran officer and the veteran trial judge believed there had been probable cause for the stop, and that decision should not be disturbed. The dissent argued that the facts gave the officer an articulable suspicion that a crime had occurred, and this was all that was needed for the stop.

State v. Byrd: The Court overruled its recent decision in State v. Johnson, in which it held that the Gant decision did not apply to the search of a purse incident to arrest. The Court reasoned that Gant allows a search only of those areas within an arrestee’s immediate control when an arrest is made, and only in the interests of officer safety and the preservation of evidence. Thus, only areas within the arrestee’s reach at the time of the search can be searched under Gant. Here, the defendant’s purse was in her car as she sat handcuffed and locked in a patrol car. She had no way to access her purse and the officer was not concerned that she could access a weapon or destroy evidence. Therefore the search incident to arrest justifications did not exist and the search was illegal.

In his dissent, Judge Brown argued that the purse was on Ms. Byrd’s lap up until the time that she was removed from her car and taken into custody. Thus, the dissent argued, the purse was within Ms. Byrd’s reach and could even be considered on her person at the time of the arrest. The dissent further argued that there was no reason to overrule Johnson.

Federal Law

Ninth Circuit Court of Appeals

United States v. Quinzon: The Court affirmed Mr. Quinzon’s sentence for possession of child pornography, including a condition of supervised release requiring monitoring technology to be installed on Mr. Quinzon’s computer-related devices. The Court ruled that Mr. Quinzon received adequate notice of the condition, and that the condition was adequately limited to target only his Internet-related computer conduct; not computer activities not related to the Internet. The Court found reading the judgment to impose such limitations was reasonable when read in light of the district court’s overall intention of preventing Mr. Quinzon from accessing and sharing child pornography.

United States v. Kennedy: The Court overturned a restitution order directing Mr. Kennedy to pay $65,000 in restitution to two victims of his crime of possession and transport of child pornography. The Court found that the government failed to carry its burden of proving that Mr. Kennedy’s offense conduct proximately caused the losses incurred by the victims. The Court observed that the statute governing restitution for all crimes is a poor fit for offenses such as this one, noting that “it is likely to be a rare case where the government can directly link one defendant’s viewing of an image to a particular cost incurred by the victim.” The Court stated that the responsibility lies with Congress to “develop a scheme to ensure that defendants such as Kennedy are held liable for the harms they cause through their participation in the market for child pornography,” and appeared to urge Congress to reconsider the statutory restitution scheme.

United States v. Duncan: The Court overturned Mr. Duncan’s waiver of his right to appeal his death sentencing, ruling that a competency hearing was required prior to his exercise of his right to represent himself and his exercise of the waiver without assistance of counsel. The Court thus reversed and remanded for a retrospective competency hearing to determine whether Mr. Duncan competently waived his right to appeal. If the district court determines that Mr. Duncan did not competently waive his right to appeal, then the Court directed the district court to determine whether Mr. Duncan competently waived his right to counsel before the penalty phase hearing. If the district court further finds that Mr. Duncan did not competently waive his right to counsel, the Court directed it to vacate Mr. Duncan’s sentence and convene a new penalty phase hearing with Mr. Duncan properly represented.

Ngo v. Giurbino: The Court affirmed the denial of Mr. Ngo’s petitions for writ of habeas corpus on his convictions of one count of first degree murder, one count of conspiracy to commit murder, and six counts of attempted premeditated murder, all arising from shootings during two gang-related car chases. The court deferred to state court rulings and found that the convictions were supported by sufficient evidence and that preemptory challenges to strike African American jurors did not violate Mr. Ngo’s Equal Protection rights when there were sufficient race neutral explanations for the challenges.

In a partial concurrence and partial dissent, Judge Noonan concurred in the opinion of the majority except as to its affirmance of Mr. Ngo’s convictions of attempted murder. The partial dissent argued there was insufficient evidence to demonstrate that Mr. Ngo knew that there were people in the back seat of the car he shot at.

Richter v. Harrington: The Court affirmed on remand the state court denial of Mr. Richter’s habeas petition finding that Mr. Richter’s trial counsel was not constitutionally ineffective because he failed to consult or call forensic experts to explain a pool of blood found at the crime scene. The Court observed that “Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court’s decision ‘was contrary to’ federal law then clearly established in the holdings of this Court, [28 U.S.C.] § 2254(d)(1); or that it ‘involved an unreasonable application of’ such law, § 2254(d)(1); or that it ‘was based on an unreasonable
determination of the facts’ in light of the record before the state court, § 2254(d)(2).” Finding no such factors in this case, the Court affirmed.

Brown v. Horell: The Court affirmed the denial of Mr. Brown’s habeas petition regarding his convictions for first degree murder, attempted murder, and attempted robbery with enhancements for firearm use and prior convictions. The Court found that under the “highly deferential standard” that it must apply to the state appellate court’s determinations under AEDPA, Mr. Brown’s petition for a writ of habeas corpus was correctly denied. The Court reasoned that neither the state court’s rulings on the constitutionality of the admission of Mr. Brown’s confession nor the constitutionality of the exclusion of an expert witness’ testimony are contrary to or an unreasonable application of clearly established Supreme Court law.

West v. Brewer: The Court denied Mr. West’s Emergency Motion for Temporary Restraining Order or Preliminary Injunction to allow Mr. West to temporarily stay his execution in the State of Arizona. The Court reasoned that Mr. West did not meet his burden of showing “(1) that he is likely to succeed on the merits of such a claim, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.” While the Court acknowledged Mr. West has a strong interest in being executed in a constitutional manner, it found he did not show that his interest was threatened in this case, as he did not show that the proposed method of execution “creates a demonstrated risk of severe pain….[a risk that] is substantial when compared to the known and available alternatives.”

United States v. Bagdasarian: The court reversed the district court’s conviction of Mr. Bagdasarian for threatening to kill or do bodily harm to a major presidential candidate for making the following statements on online message boards two weeks before the presidential election: (1) “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and (2) “shoot the nig.” The Court found that the statements directly encouraged violence but did not constitute an offense within the meaning of the threat statute under which Mr. Bagdasarian was convicted. Specifically, the court found that the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Mr. Bagdasarian had the subjective intent to threaten a presidential candidate, and the statements were therefore not a true threat.

In a partial dissent, Judge Wardlaw concurred with the analysis of the law of true threats, but argued that in this case a reasonable person would foresee that the statements made would be perceived as a threat to harm a presidential candidate. The dissent further argued that there was sufficient evidence to support a finding of objective and subjective intent, even under a heightened standard of review, and therefore sufficient evidence to find Mr. Bagdasarian guilty of threatening harm against then-presidential candidate Barack Obama.

Blair v. Martel: The court affirmed the denial of the writ of habeas corpus for Mr. Blair, who argued that the California Supreme Court’s delay in resolving the direct appeal from his murder conviction and death sentence denied his right to due process under the Fourteenth Amendment. The Court reasoned that “no clearly established Federal law, as determined by the Supreme Court of the United States recognizes a due process right to a speedy appeal.” Thus, because no Supreme Court decision clearly establishes the right that Mr. Blair claims California violated, the petition must be denied.

United States v. Dann: The Court affirmed Ms. Dann’s convictions for conspiracy to commit visa fraud (count one), visa fraud (count two), forced labor (count three), unlawful conduct regarding documents in furtherance of servitude (count four), and harboring an illegal alien for the purpose of private financial gain (count five), after it was found that she had brought a live-in nanny and housekeeper, Zoraida Peña Canal to the United States from Peru in 2006 under a fraudulently-obtained visa and then seized her passport, forbade her from speaking with anyone outside the home, failed to pay her for two years, although she often promised that she would, and repeatedly threatened to send Ms. Peña Canal back to Peru; yet when Ms. Peña Canal agreed to go home, Ms. Dann told her that she would owe her $8,000 because she had only worked off $7,000 of the $15,000 worth of “expenses” that Ms. Dann had paid on her behalf. Ms. Dann then asked Ms. Peña Canal to sign a false statement that she had been paid minimum wage. The Court found there was sufficient evidence to support the convictions, affirmed an enhancement for holding Ms. Peña Canal in forced labor for over one year and an enhancement for committing a felony “in connection with” forced labor. However, the Court reversed the district court’s restitution order, finding that child support owned by Ms. Dann could not be assigned to Ms. Peña Canal by a restitution order while Ms. Dann’s children were still minors, as the children are the real parties in interest to accrued child support.

John-Charles v. California: The Court affirmed the district court’s denial of Mr. John-Charles’ federal habeas petition. The Court found that the California Court of Appeal’s rulings that Mr. John-Charles had no absolute Sixth Amendment right to the reappointment of counsel after waiving his right to counsel, that the trial court’s abuse of discretion in failing to reappoint counsel was harmless beyond a reasonable doubt, and that there was no Apprendi violation when the California court used a prior juvenile conviction as a “strike” to enhance his sentence were not “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The court observed that it has been warned by the Supreme Court to avoid applying AEDPA in a manner that displays “a lack of deference to the state court’s determination and an improper intervention in state criminal processes,” and to instead consider “arguments that would otherwise justify the state court’s result.” The Court reasoned that not all fair minded jurists would be compelled to hold that the California Court of Appeal’s determinations were contrary to or an unreasonable application of clearly established Supreme Court precedent, and therefore it must deny Mr. John-Charles’ request for relief.

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