Criminal Case Law Update, Week Ending 9-30-11

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

Division One Court of Appeals

State v. Mandanas: The Court upheld Mr. Mandanas’ convictions for second degree assault and felony harassment, finding that Mr. Mandanas failed to raise his current double jeopardy challenge in his first appeal in this case. Despite this, the Court reviewed the case on the facts, and found that there was no merger and no double jeopardy violation, because in addition to pointing a gun at his victim and threatening to kill him, conduct that constituted both assault and felony harassment, Mr. Mandanas admitted to striking his victim on the head with a gun, conduct witnessed by three separate parties, and which constituted second degree in its own right.

Division Two Court of Appeals

State v. Chanthabouly: Mr. Chanthabouly appealed his conviction for second degree murder, stemming from the shooting of Sam Kok at Foss High School in Tacoma. Mr. Chanthabouly argued that he killed Mr. Kok in the delusional belief that he was acting in self defense and he was therefore unable to tell right from wrong at the time of the crime. Accordingly, Mr. Chanthabouly asserted that (1) the trial court erred by denying his pre-trial motion for a judgment of acquittal on the grounds of insanity, (2) the jury erred by rejecting his insanity defense, and (3) his counsel provided ineffective assistance by failing to propose a jury instruction that a person who kills another in the delusional belief that he was acting in self defense is “unable to tell right from wrong.” Mr. Chanthabouly also appealed his exceptional sentence of lifetime community custody, arguing that (4) the “destructive and foreseeable impact” aggravating circumstance, which supported the trial court’s imposition of the exceptional sentence, is unconstitutionally vague; and (5) insufficient evidence supported the jury’s special verdict finding this aggravating circumstance. Finally, Mr. Chanthabouly contends that (6) the trial court deprived him of a full opportunity to conduct voir dire, and (7) cumulative error deprived him of a fair trial. The Court was not convinced by any of these arguments, finding that there was sufficient evidence that Mr. Chanthabouly knew right from wrong, and that the acquittal motion and insanity defense were properly rejected. The Court further found no ineffective assistance of counsel in failing to propose a jury instruction to which Mr. Chanthabouly had no right. The court additionally upheld the lifetime community custody sentence, finding that the aggravating circumstance was not vague and was supported by sufficient evidence. Finally, the court found voir dire adequate and found no cumulative error.

State v. Mahone: In this partially published opinion, Mr. Mahone appealed two consecutive 240-day penalties imposed for four violations of his post-confinement community supervision and community placement portions of sentences for two separate convictions. The Court agreed that former RCW 9.94A.200(1994) authorized the superior court to impose only a single confinement period of 240 days, based on four consecutive multiple 60-day penalties for the four acts that constituted the violations of both community terms. The Court left intact the 240-day period of confinement imposed for violating his assault conviction community supervision, and remanded for correction of the superior court’s April 23, 2010 order.

Lynch v. Department of Licensing: The Court reversed the trial court’s order reversing the Washington State Department of Licensing’s decision to suspend Ms. Lynch’s driver’s license and disqualify her commercial driver’s license. The Court agreed with the State that the implied consent warnings Ms. Lynch received were accurate and not misleading, and that Ms. Lynch failed to prove that she was prejudiced by the warnings. The Court reasoned that the CDL warning included in the implied consent warnings is not required by the statute, are in compliance with the CDL and the implied consent statutes, and are not confusing. The Court held that a person of normal intelligence would not be led by the warnings to believe that either the CDL disqualification (1) could be remedied by an ignition interlock driver’s license or (2) would last only as long as the driver’s license suspension or revocation. Finally, the court found that the warnings did not prejudice Ms. Lynch.

Division Three Court of Appeals

State v. Hilton: In this partially published opinion, the court upheld Mr. Hilton’s conviction for two counts of aggravated first degree murder. The Court found that the trial court did not err in admitting evidence under the independent source doctrine, that there was no violation when Mr. Hilton was questioned by the prosecutor regarding his ability to tailor his alibi testimony because Mr. Hilton opened the door to such cross-examination, and the trial court did not err in excluding third party perpetrator evidence and argument when Mr. Hilton never advanced this theory at trial and never made the requisite showing to allow him to make the argument at trial.

State v. Savoie: The Court reversed Mr. Savoie’s murder conviction based on a finding that the trial court violated his right to a public trial and erred in appointing counsel for the victim’s parents. The Court found that the courtroom was closed to protect the interests of the victim’s parents, not the interests of Mr. Savoie, and that Mr. Savoie strenuously objected to the closing of the courtroom. The Court held that the only proper remedy is reversal for a new trial.

State v. Schroeder: The Court affirmed Mr. Schroeder’s convictions for second degree unlawful possession of a firearm and possession of a controlled substance. The Court found that Mr. Schroeder waived any confrontation challenge to the admission of a laboratory report when he did not object to the admission of the crime laboratory certificate and did not demand that the lab technician testify in his case. Under the Court rules, the Court found that the lab reports were properly entered without further foundation if there is no request for an expert.

Federal Law

United States Court of Appeals for the Ninth Circuit

United State v. Krupa: The Court rejected Mr. Krupa’s challenge to the district court’s denial of his motion to suppress evidence seized from computers in his custody. The Court found probable cause for the issuance of the search warrant for the computers when the affidavit set for the qualifications of the investigating agent, set forth a statement that a photograph viewed in a preliminary, consensual search constituted “suspected contraband,” and stated that the police had responded to “a report of child neglect,” that no custodial parents were at the residence, that Mr. Krupa, who was not affiliated with the military, had care and custody of the residence that was on a military base, and that the residence contained 15 computers. The Court reasoned that these facts created a fair probability that contraband would be found in the computers, and even if there was not probable cause to support the warrant, the warrant fit within the good-faith exception to the warrant requirement.

In a dissent, Judge Berzon argued that Mr. Krupa had been shown, at worst, to be idiosyncratic, negligent, and irresponsible, but that this did not rise to the level of probable cause. The dissent argued that in a case such as this, where the items to be seized—images on a computer—could be, and usually are, innocuous in nature, an affidavit in support of a search warrant must establish a “fair probability” that the images actually are contraband or evidence of a crime. In this case, there was no such probability.

United States v. Kortlander: The Court held that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. The court further found that the district court erred in granting Mr. Kortlander only restricted access to the warrant materials without articulating a compelling reason for its ruling or making specific factual findings. The court vacated the district court’s order and remanded to reapply the common law standard to the request in this case. The court declined to decide whether the public has a qualified First Amendment right of access to warrant materials after an investigation has been terminated, reserving that issue for the district court.

United States v. Barraza-Lopez: The Court held that the Speedy Trial Act’s 30-day pre-indictment time limit, which ordinarily runs from the date of the defendant’s initial arrest, restarts when the underlying complaint is dismissed without prejudice and the charges are later re-filed. In this case, the 30-day clock both started and stopped upon the filing of the second superseding indictment, which reinstated the dismissed illegal reentry charge against Mr. Barraza-Lopez. Therefore, the court found no speedy trial violation.

United States v. Perelman: The Court rejected Mr. Perelman’s First Amendment facial challenge to the government’s prohibition on the unauthorized wearing of military medals. Mr. Perelman challenged the statute after pleading guilty to fraudulently obtaining a purple heart and wearing it in public. Mr. Perelman had accidentally shot himself in the right thigh twenty years after his service in Vietnam and claimed the injury stemmed from his service in that war. Based on those claims, he was awarded a Purple Heart and other medals as well as disability benefits. Mr. Perelman pled guilty to the charge against him but claimed that the statute prohibiting the wearing of unauthorized medals in public violated his First Amendment Rights. The Court held that the regulation was justified as it “furthers an important or substantial governmental interest [that] is unrelated to the suppression of free expression [and that] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

Stokley v. Ryan: The Court affirmed Mr. Stokely’s capital sentence for the murder of two thirteen-year-old girls. The Court found that Mr. Stokley had not made a colorable claim of ineffective assistance of counsel and was not entitled to an evidentiary hearing to develop his claim that his trial counsel provided ineffective assistance at sentencing by failing adequately to investigate and present evidence that Mr. Stokley suffered from organic brain damage at the time of the murders. The Court found that trial counsel undertook an extensive investigation into Mr. Stokley’s mental health, arranged for him to be evaluated by a neuropsychologist, and presented testimony from a psychologist and a neurologist.

United States v. Chung: The court affirmed Mr. Chung’s convictions for violation of the Economic Espionage Act of 1996 (EEA), one count of conspiring to violate the EEA, one count of acting as an unregistered foreign agent, and on one count of making a false statement to federal agents. The court found that the convictions were supported by sufficient evidence, including correspondence and trade secret documents found in Mr. Chung’s home. The Court disagreed with Mr. Chung’s allegation that he was entitled to a new trial for Brady violations and due to erroneous evidentiary rulings, finding that there was no prejudice from the delayed production of certain materials, and that though there was a Sixth Amendment violation in admission of certain certificates, the error was harmless. The Court finally confirmed Mr. Chung’s sentence.

United States v. Sykes: The court found that the district court’s modification of Mr. Sykes’ sentence to the 120-month mandatory minimum term did not constitute the application of a new sentence, as argued by Mr. Sykes. The Court reasoned that the mandatory minimum sentence clearly applied in this case and the district court lacked the power to resentence Mr. Sykes without regard to the statutory minimum.

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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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