CJE Wire: Case Law Updates — 2017 December 29


 Washington State Courts

Division I Court of Appeals

State v. Gonzalez: In this partially published opinion, the Court found that there was no double jeopardy violation despite the fact that the jury was not instructed that separate and distinct acts must support each conviction on the multiple allegations of child rape and child molestation brought in this case. The Court found that it was manifestly apparent to the jury that the State was not seeking to impose multiple punishments for the same offense and that each count was based on a separate act. The Court reasoned that the State distinguished the acts of child molestation and the acts of child rape, described the type of conduct that supported the child molestation count and the child rape counts, and gave examples of each. Further, the State never argued that the same conduct, oral sex, could be both child rape and child molestation. The Court found that supporting testimony and argument on the subject was neither vague nor inconsistent. The Court additionally found that the trial court did not err in giving a supplemental jury instruction after the jury began deliberations, because the instruction did not exceed matters that were argued or could have been argued to the jury. The court found it was also apparent from the record that Mr. Gonzales’ counsel assumed that the missing instruction had in fact been read, so that he could not show his cross examination or closing argument would have changed. Finally, the Court found that evidence that Mr. Gonzales had masturbated while holding his victim’s bra was not improperly before the jury, as it went to the defendant’s lustful disposition toward the victim, and the evidence was not unfairly prejudicial because his act was not more inflammatory than the charged crime, and the victim was only indirectly victimized by it. http://www.courts.wa.gov/opinions/pdf/75127-1.pdf

Personal Restraint of White: The Court found that Mr. White’s two convictions for second degree assault, entered prior to the Supreme Court’s decision in State v. Villanueva-Gonzalez, 180 Wn.2d 975, 329 P.3d 78 (2014), which found assault to be a course of conduct crime, violated double jeopardy. The Court held that the two actions constituted a single course of conduct, as they occurred over a short period of time, in the same locations, were done with the same intent, and were uninterrupted, giving Mr. White no chance to reconsider or change course, meeting all of the factors outlined in Villanueva-Gonzalez for finding acts constituted the same course of conduct. http://www.courts.wa.gov/opinions/pdf/71886-0.pdf

State v. Chase: The Court, in a matter of first impression, found that a shareholder or officer of a closely held corporation has no personal privacy interest in the corporation’s financial information under Article 1, section 7 of the Washington State Constitution. The Court found that State v. Miles, which held that individuals have a privacy interest in their personal bank records held by a third party, did not control in this case, as the records belonged to a corporation, not to Mr. Chase. The court reasoned that a corporation’s bank records have not historically been found to be private documents, and that a corporation’s financial transactions do not reveal sufficiently sensitive information about a person’s personal contacts and associations to require the protections of article 1, section 7. http://www.courts.wa.gov/opinions/pdf/750500.pdf


Division II Court of Appeals

State v. Allen: The Court affirmed the trial court’s dismissal of the State’s allegations of aggravating circumstances under chapter 10.95 RCW on double jeopardy grounds. The State had charged Darcus Allen with four counts of premeditated murder with two aggravating circumstances, and filed a notice seeking the death penalty. The jury convicted Mr. Allen, but found unanimously that the State had not proven the aggravating circumstances beyond a reasonable doubt. The state Supreme Court reversed Mr. Allen’s convictions, and the state re-filed, this time not seeking the death penalty but still alleging the same aggravating circumstances previously filed. The trial court dismissed the aggravators on Mr. Allen’s motion, citing double jeopardy. The Court reasoned that the jury’s unanimous finding on the aggravating circumstances was an acquittal and, further, that the aggravating circumstances were the functional equivalent of elements of the charged crime. The Court pointed to Apprendi v. New Jersey, 530 U.S. 466, 489, 133 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), for the proposition that “factors which raise the penalty for a crime, other than a fact of conviction, are the functional equivalent of elements. In other words, they are akin to elements, must be submitted to a jury, and must be proven beyond a reasonable doubt.” http://www.courts.wa.gov/opinions/pdf/D2%2048384-0-II%20Published%20Opinion.pdf



 Federal Law

Ninth Circuit Court of Appeals

Apelt v. Ryan: The panel vacated the district court’s judgment granting a writ of habeas corpus on Michael Apelt’s claim of ineffective assistance of counsel (IAC) at sentencing, and affirmed the district court’s denial of relief on Mr. Apelt’s other claims, in the state of Arizona’s appeal and Mr. Apelt’s cross appeal arising from his habeas corpus petition challenging his conviction and death sentence for first-degree murder. The panel held that while the state court’s alternate ruling on the merits of the IAC claims does not allow a federal court to ignore the state court’s finding of procedural default, it also does not bar a federal court from considering whether there is cause and prejudice excusing the default under Martinez v. Ryan, 566 U.S. 1 (2012), and Coleman v. Thompson, 501 U.S. 722 (1991). The panel held that counsel’s performance on Mr. Apelt’s first post-conviction petition was sufficiently deficient to provide cause for Mr. Apelt’s default. The panel agreed with the district court that Mr. Apelt was denied effective assistance of counsel at sentencing, but concluded that the state courts’ determination that counsel’s deficient performance at sentencing was not prejudicial was not unreasonable. The panel therefore vacated the district court’s grant of the writ.

Regarding Mr. Apelt’s certified claims, the panel held (1) that Mr. Apelt has not shown that the state court’s denial of funding to investigate mitigation violated his constitutional rights; and (2) that Mr. Apelt has not met his burden of showing that the state court’s denial of his mental-disability claim under Atkins v. Virginia, 536 U.S. 304 (2002), is an unreasonable determination of the facts in light of the evidence presented. The panel certified for appeal Mr. Apelt’s claims (1) that the Arizona Supreme Court applied an unconstitutional causal connection requirement to his mitigation evidence; and (2) that counsel was ineffective at trial and sentencing for failing to challenge Mr. Apelt’s competency. The panel concluded that both claims are not persuasive. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/28/15-99013.pdf

United States v. Aldana: Affirming misdemeanor convictions under 8 U.S.C. § 1325(a)(1) for attempting to enter the United States “at any time or place other than as designated by immigration officers,” the panel held that a place “designated by immigration officers” refers to a specific immigration facility, not an entire geographic area. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/29/16-50372.pdf

Hernandez v. Chappell: The panel reversed the district court’s denial of a writ of habeas corpus as to Francis Hernandez’s guilt phase claims relating to first degree murder, vacated his convictions on those counts, and remanded. The panel held that had counsel performed effectively and investigated and presented a diminished mental capacity defense based on mental impairment, there is a reasonable probability that at least one juror would have had a reasonable doubt as to whether Mr. Hernandez could have formed the requisite mental state for first degree murder.

Concurring in part and dissenting in part, Judge Nguyen wrote that even if the jury had considered the mental evidence of Hernandez’s mental condition, there is no reasonable possibility of a different outcome, and would deny the habeas petition. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/29/11-99013.pdf