CJE Wire: Case Law Updates — 2017 November 3


 Washington State Courts

Washington State Supreme Court

State v. Cruz:  In a unanimous opinion authored by Justice Gordon McCloud, the Court dismissed the State’s appeal of the trial court’s order suppressing a search of Eric Cruz’ car incident to his arrest for illegally “snagging” a salmon in the Similkameen River.  The officer searched the truck after Mr. Cruz, in response to questioning, admitted there were guns in the vehicle, but never obtained a search warrant.  Mr. Cruz, who has a prior felony, was subsequently charged with three counts of second degree unlawful possession of a firearm.  The defense moved to suppress evidence gathered in the search under Gant and its progeny, and the trial court granted the motion, noting in its handwritten findings, that “the practical effect of this order is to terminate the case.”  The State then moved to dismiss without prejudice.  The Court instead dismissed with prejudice.  The State appealed the suppression order, but not the order of dismissal.  The Court quoted a prior ruling in State v. Fortun, 94 Wn.2d 754, 755, 626 P.2d 504 (1980) (per curiam) explaining that even if the suppression order was reversed, “fundamental common sense compels us to conclude there remains no existing charge to which a possible reversal of a pretrial order could apply” because “the dismissal order would remain unchanged and the case below would still be at an end.”  The State did file a motion to amend the notice of appeal to add in the dismissal order, which was granted.  However, the Court found that the circumstances remained unchanged, given that the State had still failed to brief and argue the propriety of the order of dismissal, and that the State was the party that affirmatively requested, or invited, the trial court to enter the dismissal order.  The Court concluded that “[c]haracterizing the “notice of appeal [as being] from the order of suppression and dismissal,” as the amended notice of appeal now does, fails to solve these invited error, failure to brief, and failure to assign error problems.  http://www.courts.wa.gov/opinions/pdf/937320.pdf


Division I Court of Appeals

State v. LaPointe:  The court reversed the trial court’s denial of Clifford LaPointe’s Knapstad motion and dismissed the charge of felony vehicle prowling based on it being a third or subsequent conviction for what would otherwise be misdemeanor vehicle prowling.  The Court pointed out that the Washington State Legislature’s 2013 amendments to RCW 9A.52.100 that elevated the crime of gross misdemeanor vehicle prowling in the second degree to a class C felony “upon a third or subsequent conviction” take effect if “a person has been previously convicted at least two separate occasions of the crime of vehicle prowling in the second degree.”  However, the Court noted that multiple counts charged in the same information or based on the same incident date do not count as separate offenses.  Here, Mr. LaPointe pled guilty to three separate charges of misdemeanor vehicle prowling resulting from two separate complaints on the same day and in the same proceeding in 2013.  The Court concluded that the language of the statute is ambiguous, and found that the 2013 convictions that occurred on the same day and in the same proceeding, and did not elevate the crime to a felony.  The Court pointed out that it had decided much the same question with regard to the persistent offender accountability act in State v. Bluford, 195 Wn. App. 570, 379 P.3d 163 (2016), reversed on other grounds, 188 Wn.2d 298, 393 P.3d 1219 (2017), finding that a guilty plea entered the same day to two different counts of armed robbery were not convictions on two separate occasions, so as to trigger the application of the act.  Further, the Court found that neither the plain language of the statute nor the legislative history was clear as to the meaning of “two separate occasions,” and so the rule of lenity should be applied and the statute interpreted in favor of the defendant.  http://www.courts.wa.gov/opinions/pdf/752189.pdf

State v. Wilson:  The Court reversed and remanded for a new trial Leslie Wilson’s convictions for rape of a child in the first degree and attempted rape of a child in the first degree. The Court found that there was sufficient evidence to support the convictions, but found that the jury was not properly instructed on the elements of attempt – specifically, there was no instruction that connected the definition of “substantial step” to the offense of attempted rape of a child.  Further, the Court found that admission of a prior remark by Mr. Wilson to the victim’s older cousin was not markedly similar to the alleged abuse that occurred in this case, and was thus not admissible under the common scheme or plan exception to ER 404(b).  http://www.courts.wa.gov/opinions/pdf/749447.PDF


Division II Court of Appeals

State v. Yelovich:  In this partially published opinion, the Court upheld Steven Yelovich’s conviction for violation of a felony no-contact order.  The Court affirmed the trial court’s denial of a proposed defense of property instruction that Mr. Yelovich wanted to give in his defense.  According to Mr. Yelovich, his former girlfriend and the subject of the no-contact order had taken his phone and other items out of an open window of his car while he was packing boxes in a garage.  Mr. Yelovich saw her and gave chase, eventually assaulting her in an attempt to recover his phone.  The Court found that a defense of property instruction is appropriate only when a party is about to be injured, or in preventing or attempting to prevent “malicious interference with … personal property lawfully in his or her possession.”  Here, the Court found that the theft was already complete.  The interference with property could no longer be prevented, and the defendant could further no longer prevent an injury, as the injury had occurred.  Therefore, a defense of property instruction was inappropriate.   Specifically, the Court held that “an owner of property cannot use force to defend that property when (1) the interference with the property occurs when the defendant was not present, (2) the interference has been completed and the property is no longer in the owner’s possession, and (3) the property has been removed from an area within the owner’s control.” http://www.courts.wa.gov/opinions/pdf/D2%2048949-0-II%20Published%20Opinion.pdf

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%20Order%20Publishing.pdf

State v. Cofield and Jeter:  The Court found that the juvenile court and the superior court erred in denying Mr. Cofield and Mr. Jeter contested record-sealing hearings after the juvenile court received objections to their records being sealed at the administrative record-sealing hearing.  The Court reasoned that under RCW 13.50.260(1)(b), the juvenile court must schedule an administrative record sealing hearing at a juvenile’s disposition hearing.  RCW 13.50.260(1)(a) clearly states that the juvenile court “shall” seal the juvenile’s court record at the administrative record-sealing hearing unless “the court receives an objection to sealing or the court notes a compelling reason not to seal.”  If the juvenile court receives an objection or notes a compelling reason not to seal a juvenile offender’s record, the statue provides that “the court shall set a contested hearing to be conducted on the record to address sealing.”  RCW 13.50.260(1)(a) (emphasis added).  RCW 13.50.260(1) makes clear that the legislature intended that juvenile courts seal all juvenile offenders’ records unless certain exceptions apply.  RCW 13.50.260(1) creates a presumption that the juvenile court will seal a juvenile offender’s court record at the administrative record-sealing hearing.  To overcome this presumption, there must be an objection or the juvenile court must note a compelling reason not to seal the record.  If there is such an objection, the juvenile court shall set a contested record-sealing hearing.  RCW 13.50.260(1)(a).  Therefore, as there was an objection here, a contested hearing should have been held. http://www.courts.wa.gov/opinions/pdf/D2%2049039-1-II%20Published%20Opinion.pdf


Division III Court of Appeals

State v. Small:  In this partially published opinion, the Court found no violation of Mr. Small’s public trial right when a record of the jury selection process, including silent, on-paper peremptory challenges, was made and misfiled within the clerk’s papers but not within the record of the trial.  The court reasoned that the jury selection process occurred in open court, visible to the public, and that after the notations on the seating chart were made, any member of the public could have requested, and would eventually have received, a copy of that chart.  http://www.courts.wa.gov/opinions/pdf/312267_pub.pdf

State v. Novikoff:  The Court upheld Alex Novikoff’s convictions for felony violation of a protection order and fourth degree assault, rejecting his arguments that the fourth-degree assault conviction either violated double jeopardy protections or merged with the no contact order violation.  The Court found that though the crimes were the same in law and fact, the legislature had signaled a clear intent to make the two crimes punishable separately.  The primary purpose of the assault statutes is to prevent assaultive behavior, but chapter 26.50 RCW, which controls the protection order, serves additional purposes beyond prevention of assault-it addresses the serious societal problem of domestic violence, it assigns more serious penalties than the assault statutes, and it punishes contempt of court. Further, amendments to chapter 26.50 RCW had recently included a statement in the intent section: “The legislature finds this act necessary to restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense and shall be enforced accordingly to preserve the integrity and intent of the domestic violence act.”  Based on this, the Court found legislative intent was the punish the two crimes separately, and upheld the convictions.  http://www.courts.wa.gov/opinions/pdf/344584_pub.pdf


 Federal Law

Ninth Circuit of Appeals

United States v. Preston:  The panel reversed a conviction on two counts of aggravated sexual abuse of a child, and remanded for a new trial.  The panel held that the cumulative effect of the following errors rendered the defendant’s trial fundamentally unfair:  (1) improper witness testimony that bolstered the alleged victim’s credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of the defendant’s ex-wife’s testimony regarding a child-incest fantasy the defendant allegedly had in 2003; and (3) prosecutorial misconduct – namely, commenting on the defendant’s decision not to testify, witness vouching, and misstating the evidence in summation.  

Concurring, Judge Kozinski joined the majority opinion, including Part III.B, because the district court erred in admitting testimony about the defendant’s masturbation to establish intent, where the government provided no other rationale for introduction of this evidence.  Judge Kozinski wrote that in the event of a retrial, he does not read this court’s ruling as precluding the government from identifying a different basis on which to seek admission of the testimony, such as to show that the defendant was sexually aroused by young boys.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/17/15-10521.pdf

United States v. Wallen:  The panel vacated the defendant’s conviction after a bench trial for killing three grizzly bears in violation of the Endangered Species Act.  The panel rejected the defendant’s contention that his offense was serious, rather than petty, entitling him to a trial by jury.  The panel held that the magistrate judge, who served as the trier of fact at trial, misconceived the self-defense element of the offense.  The panel held that the “good faith belief” defense for a prosecution under 16 U.S.C. § 1540 is governed by a subjective, rather than an objective, standard, and is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear.  Because the district court applied an objective standard, and the error was not harmless, the panel vacated the conviction and remanded for a new trial.  The panel rejected the defendant’s contention that, even if the Constitution does not guarantee his right to a jury trial, he is entitled to one, because if he is again tried by a judge, that judge would have access to the defendant’s record of conviction, biasing the trier of fact.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/25/16-30033.pdf

United States v. Kelly: The panel affirmed a conviction for selling and possessing with the intent to sell over 446 grams of ethylone, and dismissed the defendant’s challenge to his sentence.   The panel rejected the defendant’s contention that the Drug Enforcement Administration violated the nondelegation doctrine by temporarily adding ethylone as a Schedule I controlled substance.  The panel explained that the plain language of the Controlled Substances Act, as codified at 21 U.S.C. §§ 811(h) and 812(b), permits the DEA to make findings for a parent substance as a basis to temporarily schedule that substance and its isomers.    The panel rejected the defendant’s contention that the DEA violated due process by failing to provide adequate notice that ethylone was a controlled substance.  The panel explained that the defendant received fair notice when the DEA filed the Notice and Order in the Federal Register.  The panel held that the rule of lenity does not apply because the text, history, and purpose of the Controlled Substances Act make unambiguous that Congress intended to empower the DEA to temporarily schedule isomers.   The panel held that because the intent of Congress is clear that the DEA has authority to temporarily schedule a parent substance and its isomers, the district court properly accorded Chevron deference to the agency interpretation.  The panel held that the defendant’s challenge to the district court’s criminal history calculation and resulting sentence is waived.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/30/16-10460.pdf

United States v. Johnson:  The panel reversed the district court’s denial of the defendant’s motion for a judgment of acquittal in a case in which the defendant was convicted of obstruction of justice under 18 U.S.C. § 1512(b)(3) for failing to include material information about the use of force upon an inmate in reports documenting the encounter with the inmate.  The panel held that the “reasonable likelihood” standard articulated in Fowler v. United States, 563 U.S. 668 (2011), applies to the federal nexus requirement of § 1512(b)(3). Applying the Fowler standard, the panel held that there was insufficient evidence for any rational juror to find that it was reasonably likely that the defendant’s reports would have reached federal officers.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/02/16-50018.pdf

United States v. Hernandez-Quintania:  The panel affirmed (1) a conviction under 18 U.S.C. § 1326 for reentry by a previously-deported alien without the express consent of the Attorney General to reapply for admission, and (2) the resulting revocation of the defendant’s supervised release from a prior illegal reentry conviction.   The panel rejected the defendant’s contention that the government failed to prove he did not obtain the Attorney General’s consent to reapply for admission to entering the United States.  The panel held that § 1326 requires a deported alien to receive the Attorney General’s consent to reapply for admission after his or her most recent deportation, regardless of whether he or she had prior permission to reapply, and that the evidence was sufficient for the jury to find that the defendant was in the United States without such consent. The panel held that the district court properly denied the defendant’s Batson challenge asserting that the government struck two jurors based on their ethnicity.  The panel held that the totality of the circumstances does not raise an inference that the government’s challenges were racially motivated, that the defendant failed to make a prima facie case of discrimination, and that the district court’s comments regarding the possible reasons for striking the jurors did not constitute structural error.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/03/16-50171.pdf

Browning v. Baker:  The panel filed an order in which (1) Judges Wardlaw and Gould amended their September 20, 2017, majority opinion in Paul Browning’s appeal from the denial of his habeas corpus petition; (2) Judge Callahan objected to any basis for expanding the COA, and stood by her dissent; and (3) the panel denied a Petition for Panel Rehearing.  In the opinion, the panel affirmed the district court’s denial of Mr. Browning’s habeas corpus petition as to his escape conviction; reversed the district court’s denial of the petition as to Browning’s convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon; and remanded for further proceedings.  Mr. Browning contended that the prosecutor withheld material evidence favorable to the defense in violation of his constitutional rights as described in Brady v. Maryland, 373 U.S. 83 (1963), and presented false and misleading evidence at trial in violation of his constitutional rights as described in Napue v. Illinois, 360 U.S. 264 (1959).  The panel held that an officer’s shoeprint observation, a witness’s expectation of a benefit for his testimony, and the precise description of the assailant’s hairstyle received from the victim were all favorable to Browning under Brady.  The panel held that Mr. Browning’s Napue claim fails because it was not clearly established at the time of Supreme Court of Nevada’s decision that a police officer’s knowledge of false or misleading testimony would be imputed to the prosecution. For the Brady evidence, except for the witness’s expectation of a benefit for his testimony, the Supreme Court of Nevada did not explicitly address whether this evidence was favorable to Mr. Browning.  The panel held that had the Supreme Court of Nevada not viewed the evidence as favorable to the defense, it would have been an unreasonable application of Supreme Court precedent.  The panel also held that it was an objectively unreasonable application of Supreme Court precedent to hold that the Brady materiality standard was not met here, and therefore concluded that the district court should have granted habeas relief on Mr. Browning’s Brady claims.  Mr. Browning also contended that he was denied his right to effective assistance of trial counsel due to inadequate pretrial investigation and preparation.  Granting Mr. Browning’s motion to expand the certificate of appealability, and explaining that the court considers counsel’s conduct as a whole to determine whether it was constitutionally adequate, the panel wrote that the district court erred by limiting the COA to particular “claims” that counsel’s failure to investigate particular avenues of evidence were deficient.  The panel held that Mr. Browning’s trial counsel unreasonably failed to investigate Mr. Browning’s case, and that the Supreme Court of Nevada unreasonably concluded that Mr. Browning failed to prove just that.  The panel amended the opinion to state that because Mr. Browning’s ineffective of assistance of counsel claims succeed on other grounds, it need not address other alleged deficiencies argued by Mr. Browning in support of an expansion of the COA.  The panel held that the Supreme Court of Nevada’s conclusion that any deficient performance did not prejudice Mr. Browning was objectively unreasonable. The panel concluded that Mr. Browning is entitled to a writ of habeas corpus with respect to his convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon.  The panel wrote that Mr. Browning is not entitled to relief as to his escape conviction because he offered no reason to call its validity into question.

Dissenting in part, Judge Callahan wrote that a meaningful application of the deferential standard of review under AEDPA compels the conclusion that the Nevada Supreme Court was not objectively unreasonable in rejecting Mr. Browning’s ineffective assistance of counsel claim as well as his claims under Brady and Napuehttp://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/03/15-99002.pdf