11 Jan Criminal Case Law Update, Weeks Ending 1-7-11
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:
Personal Restraint of Gentry: Death row prisoner Jonathan Lee Gentry brought a challenge to his conditions of confinement as implemented by the Washington State Department of Corrections in 2009, claiming he has been effectively placed in indefinite solitary confinement in violation of ex post facto prohibitions. The Court found that solitary confinement was contemplated by state law at the time of Mr. Gentry’s crime and sentence, and therefore his conditions of confinement do not constitute ex post facto punishment, and there is no unlawful restraint. The Court further noted that participation in the good behavior incentive program did not create a liberty interest in special housing and related privileges. http://www.courts.wa.gov/opinions/pdf/840393.opn.pdf
In her dissent, Justice Stephens, joined by Justice Sanders, argued that the case should have been remanded to a superior court for a reference hearing to resolve unanswered factual questions, and pointed out that the majority mischaracterized Mr. Gentry’s argument and therefore failed to see the relevance of the missing facts. The dissent argued that Mr. Gentry was not arguing that he had a protected liberty interest in housing conditions, but that his present custody of indefinite solitary confinement, without the opportunity for human contact with other inmates and visitors, constitutes an ex post facto punishment. The dissent pointed out that there were insufficient facts to establish solitary confinement is synonymous with the intensive management unit in which Mr. Gentry had been placed. In fact, the current custody situation for death row inmates is entirely new, the dissent noted, because it eliminates the structured system that accompanied the former IMU placement, which offered the opportunity for interaction on a daily basis and contact visits with family members. http://www.courts.wa.gov/opinions/pdf/840393.no1.pdf
State v. Coucil: The Court affirmed a Court of Appeals decision finding that the penalty classification for bail jumping is based on the classification of the offense the defendant was held for, charged with, or convicted of at the time he or she jumped bail, not the classification of the offense to which the defendant ultimately was sentenced. Because Mr. Coucil was charged with a class C felony when he committed the act of jumping bail, he was properly found guilty of and sentenced for felony bail jumping, regardless of the fact that he was ultimately sentenced to a gross misdemeanor. http://www.courts.wa.gov/opinions/pdf/836540.opn.pdf
State v. Marohl: Mr. Marohl was charged with second degree assault or, in the alternative, third degree assault, based on allegations that he placed Joseph Peterson in a choke hold and caused him to fall to the floor, scraping and bruising his face and breaking his prosthetic arm. He was found guilty of third degree assault and appealed, claiming insufficient evidence existed to show he committed third degree assault because the floor was not an “instrument or thing likely to produce bodily harm” under RCW 9A.36.031(1)(d). The Court reversed the conviction, ruling that the statute is unambiguous and that under these circumstances, the casino floor was not similar to a weapon, nor was it “likely to produce bodily harm.” The casino floor was therefore not within the scope of RCW 9A.36.031(1)(d). http://www.courts.wa.gov/opinions/pdf/835705.opn.pdf
Division Two Court of Appeals
State v. Hyder: The Court found that statements by Mr. Hyder’s therapist were properly admitted under RCW 26.44.030, which makes inapplicable any therapist-client privilege. Further, the Court found that the investigating officer properly employed a search warrant to obtain the therapists’ records. Based on this, the record supports the jury’s findings on aggravating factors for sentencing. The Court also found that Mr. Hyder waived any error by failing to object to the manner in which one of the jurors was seated. Further, the Court found that the issue of whether statutory aggravating factors found by a jury as required by RCW 9.94A.535(3) are substantial and compelling is a legal question to be decided by a judge rather than a jury, and the trial court therefore did not err in determining this issue or imposing an exceptional sentence. However, the Court ruled that Mr. Hyder’s judgment and sentence leaves unclear whether the combined terms of incarceration and community custody exceed the statutory maximum. Therefore, the Court remanded for clarification of the community custody term and otherwise affirm Hyder’s convictions and sentence. http://www.courts.wa.gov/opinions/pdf/37267-3.11.doc.pdf
Division Three Court of Appeals
State v. Yon: The Court overturned Mr. Yon’s convictions for wildlife trafficking in the first degree, imposed for his purchase of four bear gallbladders for $200 apiece. The Court found that the statute does not permit a value aggregation of pieces of contraband to reach the $250 threshold required to commit the crime. The Court further found that RCW 77.15.030 requires each piece of contraband he purchased to be treated as a separate offense. http://www.courts.wa.gov/opinions/pdf/287742.opn.doc.pdf
State v. Rosalez: The Court found that the Benton County Superior Court, sitting in its appellate capacity in a DUI case, exceeded the proper scope of review when it reversed on the basis of ER 403. The Court reasoned that, although an ER 403 issue may have been present within the question of whether the breath test evidence was admissible in light of misconduct and misinformation originating at the state toxicology lab, Mr. Rosalez had never raised the ER 403 issue at trial, and was not entitled to raise it for the first time on review, nor should it have been raised sua sponte by the district court. The Court found that the superior court therefore exceeded the scope of its review when reversing under these circumstances. http://www.courts.wa.gov/opinions/pdf/282538.opn.doc.pdf
Ninth Circuit Court of Appeals
United States v. Harris: The Court dismissed Mr. Harris’ appeal from his sentence to being a felon in possession of a firearm and ammunition. The Court ruled that Mr. Harris waived his right to bring the instant appeal, and refused to exercise jurisdiction over Mr. Harris’ claims. Mr. Harris had argued that the district court erred in concluding that California first-degree burglary is a crime of violence of purposes of an enhanced sentence, however, the Court found that his plea agreement on its face prevented him from appealing the sentence. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/04/09-50113.pdf
United States v. Carona: Former Orange County, California sheriff Michael Carona appealed a guilty verdict on one count of witness tampering. Mr. Carona argued, first that a recorded conversation between Mr. Carona and a confederate who was cooperating with federal prosecutors should not have been admitted into evidence, and second, that the prohibition under that witness tampering statute against “corruptly persuad[ing]” a witness to “withhold testimony” from the grand jury properly applied only where a defendant intended for a witness to withhold all testimony, and not where, as in this case, the evidence indicated that the defendant intended for a witness to omit information by testifying falsely in the course of providing testimony. The Court disagreed with the district court that prosecutors had violated rules of professional conduct by communicating with Carona, known by them at the time to be represented by counsel, through the cooperating witness, to whom the prosecutors had given fake documents to use in eliciting incriminating statements, and therefore found that the evidence was properly admitted. The Court further found that the statute under which Mr. Carona was convicted covers the conduct for which he was found guilty. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/06/09-50235.pdf
United States v. Valverde: The court upheld the dismissal of the indictment against Mr. Valverde under the Sex Offender Registration and Notification Act (“SORNA”). The Court rejected Mr. Valverde’s commerce clause arguments in light of its recent decision in United States v. George, but dismissed on the separate ground that the Attorney General’s interim regulation of February 28, 2007 — applying SORNA’s registration requirements retroactively to sex offenders, such as Valverde, who were convicted before the statute’s enactment — did not comply with the notice and comment procedures of the Administrative Procedure Act (“APA”), and did not qualify for the “good cause” exemption, as there was no “rational connection between the facts found and the choice made” to promulgate the interim rule on an emergency basis. As a result, the retroactivity provision did not become effective until August 1, 2008 —30 days after its publication in the final SMART guidelines along with the Attorney General’s response to related public comments. This was nearly eight months after the January 2008 conviction of Mr. Valverde. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/27/09-10063.pdf
McCullough v. Kane: The Court affirmed a district court finding that Governor Schwarzenegger violated Mr. McCullough’s due process rights in twice reversing the decision of the California Board of Prison Terms to recommend Mr. McCullough for parole of his sentence of fifteen years to life following a murder conviction, finding that the governor’s decision was not supported by “some evidence” of future dangerousness. The Court noted that since his incarceration in 1983, Mr. McCullough had earned his GED, his associate’s degree, and his bachelor’s degree in social work. He participated in a juvenile offender deterrent program, helping to keep children out of trouble. He obtained job training and excelled in his employment placements. He successfully rehabilitated himself to the point where his most recent psychological evaluations indicate he is less likely to commit violence than the average community citizen. The Court also noted that in the three years since Mr. McCullough’s release pending his appeal in this case he obtained employment at a furniture manufacturing company in Gardena, California, and had not only made outstanding contributions to the company, but had been promoted to supervisor.
In his dissent, Judge Rawlinson observed that in reversing the parole decision the Governor had referenced the “especially heinous” nature of the murder, bludgeoning “a sleeping, unsuspecting, and unthreatening man repeatedly with a brick . . . for the remarkably trivial motive of stealing his money.” The dissent argued that this case could not be distinguished from the Irons case, in which a similar decision by the Governor was upheld, and that “extreme deference” is due the Governor’s determinations under Hayward. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/27/07-16049.pdf
United States v. Liquidators of European Federal: The liquidators of accounts belonging to former Ukranian Prime Minister Pavel Lazarenko appealed an order of forfeiture seizing monies placed in European Federal (EuroFed) bank branches in the United States. The Court reversed the forfeiture and ordered the monies returned to the bank liquidators. In its decision, the Court reasoned that the civil forfeiture complaint involving the same property had been dismissed for a statute of limitations violation, and that ruling barred relitigation of the matter as a criminal forfeiture proceeding. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/04/09-10116.pdf
Lakey v. Hickman: The Court ruled that Mr. Lakey’s petition for a writ of habeas corpus was time-barred under 28 U.S.C. § 2244(d). The Court reasoned that The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) allows state prisoners only one year from the completion of the direct review process in state court to apply in federal court for a writ of habeas corpus and, while the limitations could be tolled, Mr. Lakey was not eligible for such tolling because he unreasonably delayed his petition and further unreasonably relied upon law that had since been overturned. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/05/09-15940.pdf
United States v. Luong: The Court affirmed Mr. Luong’s and co-defendant’s Mady Chan’s appeal from their convictions for the use of a firearm in the commission of a violent crime. The Court found, first that Mr. Luong and Ms. Chan for the most part did not make actual sentencing arguments in support of their appeal. Two arguments that did meet the standard were also rejected, however, as the Court found, first that the defendants misread the statute in arguing that the statute precluded the five-year sentences which were imposed upon them and, second, that the five year sentence was in fact a mandatory minimum and the district court did not err in imposing such a sentence. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/29/09-10265.pdf
United States v. Anaya-Acosta: The Court upheld Mr. Anaya-Acosta’s conviction for being an illegal alien in possession of a firearm and ammunition. In so doing, the court reasoned that the fact that Mr. Anaya-Acosta was subject to a departure control order did not modify his immigration status so as to render him legally within the United States, and was not equivalent to being paroled into the United States for purposes of the controlling statute in this case. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/03/09-50610.pdf
Hamilton v. Brown: The Court ruled that California state prison inmates constitutionally may be required to provide blood samples for DNA identification under California’s DNA and Forensic Identification Database and Data Bank Act of 1998. The Court rejected Mr. Hamilton’s due process claims, reasoning that the DNA requirements under the Act are self-executing and do not require notice prior to the taking of a DNA sample. The Court further rejected Mr. Hamilton’s Eighth Amendment claims, observing that Mr. Hamilton did not allege he was subject to physical force in connection with the taking of the blood sample beyond being handcuffed and then restrained in a chair, nor did he allege the infliction of pain beyond the needle stick and the discomfort of the temporary restraint, which, although “uncomfortable, frustrating and humiliating,” did not constitute a viable Eighth Amendment claim. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/04/09-15236.pdf
United States v. Contreras-Hernandez: The Court found that California solicitation to commit murder is a crime of violence for purposes of a Guidelines enhancement, and concluded that the
district court performed its obligation to consider the Section 3553 factors. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/03/09-50009.pdf
United States v. Chaudhry: The Court concluded that it does not possess appellate jurisdiction to review a district court’s decision not to impose a provision sentence until the defendant is competent to be sentenced. The court reasoned that such a decision is not a final order and provides no basis for the Court to exercise jurisdiction. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/03/09-10381.pdf
United States v. Montes: The Court found that an evidentiary hearing regarding alleged juror misconduct was not required where, as here, the District Court could adequately make its determination without the benefit of an evidentiary hearing. The Court reasoned that the allegation of misconduct here was limited to a juror bringing in articles that alleged that the new presidential administration may be more lenient on pot clubs, and that such information could have no impact on their evaluation of Mr. Montes’ guilt or innocence, as the conduct with which Mr. Montes was charged was criminal at the time, and the fact that a future president may choose a different designation for that conduct would have no bearing on the case at hand. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/04/08-10539.pdf
Byrd v. Maricopa County Sheriff’s Department: Charles E. Byrd was subjected to a cross-gender strip search of his genital area. The Court found that the strip search was unreasonable under the facts of this case, and reversed the district court’s judgment in favor of the sheriff’s department. Because the search was unreasonable, the Court concluded, it violated Byrd’s rights under the Fourth Amendment to be free from unreasonable searches.
Judge Smith, joined by Judges Kozinski, Gould, Tallman, and Bea, dissented in part and concurred in part, arguing that (1) the deference we owe prison administrators, (2) the jury’s undisputed factual findings, and (3) the relevant case law compelled them to conclude that O’Connell’s actions were reasonable under the Fourth Amendment. The partial dissent parted ways with the majority on this basis. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/05/07-16640.pdf
Hayes v. Ayers: The Court affirmed the district court’s denial of Royal Kenneth Hayes’ habeas corpus petition after he was convicted and sentenced to death by a California state court for murder. The Court found meritless all eight of Mr. Hayes’ claims of error, including, (1) the trial court’s denial of his motion for change of venue based on alleged adverse pretrial publicity; (2) the admission of hearsay evidence regarding a firearms conviction of the man who allegedly delivered the murder weapon to Mr. Hayes; (3) the trial court’s refusal to declare a mistrial following a statement by a witness during her testimony that she had heard that Mr. Hayes had offered $25,000 to have her killed; (4) the trial court’s refusal to permit Mr. Hayes to call the attorney of another witness to testify about communications he had with his client that allegedly would have impeached her testimony; (5) the prosecutor’s alleged failure to correct false testimony by that same witness; (6) security measures taken during the trial; (7) the eleven years that passed between Mr. Hayes’s conviction and the filing of his opening brief on direct appeal to the California Supreme Court; and (8) the alleged cumulative prejudice of the above errors.
Judge Fletcher dissented, arguing that the guilt phase of Mr. Hayes’s trial should have been transferred out of Santa Cruz County because the considerable adverse pretrial publicity created a presumption of prejudice among the jury pool. The dissent would have granted the petition on the grounds that the lower court’s failure to grant his motion for change of venue violated his right to an impartial jury and to due process of law. http://www.ca9.uscourts.gov/datastore/opinions/2011/01/07/07-99014.pdf
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Washington Supreme Court Chief Justice Barbara Madsen will deliver the 2011 State of the Judiciary Address before a joint session of the Washington State Legislature on Wednesday, January 12th at 11:30 a.m. The address will be carried live via TVW, Washington’s Public Affairs Network. Copies of the address will be available online at www.courts.wa.gov immediately following the event.
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