CJE Wire: Case Law Updates — 2017 October 13


 Washington State Courts

Washington State Supreme Court

Blomstrom v. Tripp:  The Washington State Supreme Court found that the three petitioners in this consolidated case lacked an adequate remedy at law in the lower courts, and therefore were entitled to statutory writs of review to challenge pre-trial random UA requirements.  In an opinion authored by Justice Wiggins, and joined by Justices Stephens, Gordon McCloud, Johnson, and Owens, the Court further found that the pre-trial testing requirements violated Article 1, section 7 of the Washington State Constitution, as the UA requirements invaded the petitioners’ private affairs, and there was no legal authority for the imposition of the pre-trial testing requirements.  The Court declined the State’s invitation to adopt the federal special needs exception to the warrant requirement in this context, holding that the petitioners did not have a diminished expectation of privacy pre-trial, noting that all were presumed innocent at this stage of proceedings.

Dissenting in part, Justice Gonzalez, joined by Chief Justice Fairhurst, and Justices Madsen and Yu, argued that the majority’s interpretation of Article 1, Section 7 usurps the trial court’s authority to determine pre-trial release conditions.  The dissent noted that probable cause for prosecution had been found in each case, and that the probable cause finding was evidence that the defendant may reoffend.  Therefore, the dissent argued, each had a diminished expectation of privacy and the court had the authority under CrRLJ 3.2 to order random drug testing as a pre-trial condition of release.

State v. Barnes:  In an opinion authored by Justice Owens and joined by Justices Johnson and Madsen, a plurality of the Court determined that a riding lawn mower does not fit the definition of a “motor vehicle” under RCW 9A.56.065, Washington’s theft of a motor vehicle statute.  The Court reasoned that the legislature had chosen not to define “motor vehicle” in the theft statute, and therefore the Court gave the term its plain and ordinary meaning.  Though that definition could encompass a riding lawn mower, the Court determined that the legislature had explicitly indicated a differing intent, noting that the legislature used the term “car,” “auto,” or “auto theft” more often in its findings than the term “motor vehicle,” and that the legislature “passed this bill with the explicit purpose of curbing the rising rate of auto thefts.”  The Court noted in dicta that the legislative history of the act further supports this interpretation. 

Concurring, Justice Wiggins, joined by Justices Gordon McCloud and Stephens, wrote separately to clarify two steps the concurrence believed were necessary to the analysis.  First, the Court should “should consider the entirety of the statute when interpreting the phrase “motor vehicle.” Second, upon concluding the term is ambiguous, the concurrence wrote that the Court “must serve the legislature’s stated intent in light of the circumstances in which the statute was passed.” Following this process, the concurrence reached the same conclusion as the lead opinion. 

Dissenting, Justice Gonzales, joined by Justice Yu and the Chief Justice, agreed with the lead opinion’s statement that “a plain reading of the term [‘motor vehicle’] could conceivably include a riding lawn mower,” and that it is not inconceivable for the legislature to have intended this result.  The dissent argued that the Court’s analysis should turn on the plain meaning of the statute, which in the dissent’s opinion, included riding lawn mowers.  The dissent claimed that the lead opinion rewrote the statute “because it believes the legislature probably meant ‘automobiles.’”  To the contrary, the dissent argued, the statute clearly says, “motor vehicle,” and the legislative definition of the term “vehicle” incudes “all self-propelled vehicles, such as low-speed, four-wheeled neighborhood electric vehicles, RCW 46.04.320, and farm mowing machines, RCW 46.04.180.”  The dissent argued that the Court should not have disregarded or circumvented the plain meaning of the statute.  http://www.courts.wa.gov/opinions/pdf/938296.pdf

State v. Salgado-Mendoza:  Justice Stephens, joined by Chief Justice Fairhurst and Justices Wiggins, Gonzales, and Owens determined that the State’s disclosure of the State Toxicologist witness the morning of trial was misconduct, but had not prejudiced the defendant in this case, and the trial court’s decision not to impose sanctions was not “manifestly unreasonable” given the facts of the case.  The Court observed that the State had disclosed the names of nine toxicologists from the lab five months prior to trial, narrowing this list down to three the day before trial and to one the morning of trial.  The Court reasoned that counsel had had ample time to prepare to cross-examine all nine toxicologists, that all nine would have provided substantively similar testimony, and the defendant was not prejudiced by the late disclosure.  The Court reasoned that CrRLJ 8.3(b) and case law require actual prejudice to be demonstrated by a preponderance of the evidence, and found no actual prejudice in this case.  The Court noted with displeasure, however, the prosecutor’s apparent minimization of the State’s discovery obligations, having stated that “[t]he defendant was given the name as soon as we had it and that’s all we can do in terms of disclosure.”  The Court found this statement incorrect, stating that “pursuing disclosure of information the prosecutor does not have is literally the purpose of CrRLJ 4.7(d).” In a footnote, the Court also expressed concern that this pattern of disclosure appears to be the standard operating procedure for the state toxicology lab. 

Dissenting, Justice Madsen, joined by Justices Yu, Gordon McCloud, and Johnson, agreed that the late disclosure of the name of the testifying toxicologist in Mr. Salgado-Mendoza’s Trial constituted misconduct.  The dissent, however, argued that Mr. Salgado Mendoza was prejudiced by this delayed disclosure. The dissent observed that “[f]orcing a defendant to bear the burden of preparing to cross-examine a long list of witnesses when the State only intends to call one is not how our system of justice operates. The State cannot cite funding deficiencies and simply shift its burden of prosecution onto defense counsel. If the State wishes to pursue prosecution, it must allocate sufficient resources to its departments so that they may operate in a way that is consistent with a defendant’s right to a fair trial. By understaffing the State’s toxicology laboratory so that they cannot confirm who will testify until the day of trial, the State is not meeting this burden and defendants are being forced to compensate for the deficiency.”  The dissent argued that the defense showed actual prejudice because the State’s late disclosure forced the defendant to choose between his right to a speedy trial and his right to adequately prepared counsel, noting that counsel had made it clear he would have preferred to request a continuance, but the defendant did not want to waive his speedy trial rights.  Citing as an example of defense counsel’s lack of preparedness, the dissent pointed to an instance in cross-examination where counsel attempted to question the testifying toxicologist about a 2009 study “that allegedly criticized certain tests regularly used by the State toxicology laboratory.”  However, the toxicologist was not aware of the specific study, leading the trial court to sustain the State’s objection to the line of questioning due to this unfamiliarity.  The dissent observed, “[h]ad the State provided Salgado-Mendoza with the name of the testifying toxicologist prior to the morning of trial, defense counsel could have interviewed the toxicologist, learned what studies he was familiar with, and provided him a copy of the unfamiliar study so that they could have a productive dialogue about it during cross-examination. Without that time for preparation, defense counsel’s attempt at using the study to defend his client simply fell flat.”  The dissent also stressed that the trial court erred in describing toxicologist witnesses as “fungible,” and argued that the majority ruling minimized the importance of the differences between these experts.  The dissent concluded that “we cannot demand a criminal defendant go above and beyond to compensate for the State’s mismanagement of its expert witnesses,” and argued that the case should have been dismissed, noting that allowing “underfunding and congestion at the State’s toxicology lab to excuse fair trial rights” gives the State no incentive to remedy the problem.  http://www.courts.wa.gov/opinions/pdf/932930.pdf


Division I Court of Appeals

State v. Sinrud:  The Court reversed Ms. Sinrud’s conviction for possession of a controlled substance with intent to deliver and remanded for a new trial.  The Court found that the element of “knowingly” was added to the possession requirement under the law of the case doctrine, as this word was part of the jury instructions, but that there was sufficient evidence to support this element.  The Court also found that one of the jury instructions, which contained the phrase “[t]he law requires at least one additional corroborating factor” with reference to possession with intent to deliver, constituted a judicial comment on the evidence.  The Court agreed, reasoning that the sentence prior to the objected to sentence stated that “the law requires” substantial corroborating evidence. By stating that the law requires at least one additional factor in the next sentence, the Court found that this conflated these two requirements “such that a reasonable juror would have interpreted the second sentence to be defining the first.”  The Court found that there could have been prejudice, as no direct evidence demonstrated that Ms. Sinrud intended to deliver the drugs she possessed.  http://www.courts.wa.gov/opinions/pdf/750526.pdf


Division II Court of Appeals

State v. Pippin:  In this partially published opinion, the Court found that Mr. Pippin’s tent, which served as his residence, and its contents were entitled to constitutional privacy protection under article I, section 7.  The Court reasoned that Mr. Pippin’s tent served “as a refuge or retreat from the outside world,” and he thus had an expectation of privacy in the tent and the belongings within under article I, section 7. The Court found that the “law is meant to apply to the real world, and the realities of homelessness dictate that dwelling places are often transient and precarious.  The temporary nature of Pippin’s tent does not undermine any privacy interest.”  The court found that the fact that Mr. Pippin was unlawfully occupying public land did not diminish this privacy interest.  The court concluded that “…the law is something more than a stay against anarchy or oil for the wheels of trade.  Its work also is to bring signs of justice amid our thirsts and furies and, in doing so, remind us of our humanity.”  http://www.courts.wa.gov/opinions/pdf/D2%2048540-1-II%20Published%20Opinion.pdf

In re Restraint of Sorenson:  The court dismissed Mr. Sorenson’s PRP as time barred, as it was filed about 13 months after the Court issued its mandate on his direct appeal.  The Court found that the time taken by the trial court to correct scrivener’s errors in his judgment and sentence, as directed on remand, did not toll the one-year period as the trial court did not exercise its independent judgment in correcting the scrivener’s errors on remand.  The Court reasoned that there were no reviewable issues when the trial court had not exercised any independent judgment on remand, making the time of the mandate the date that the decision was final.  http://www.courts.wa.gov/opinions/pdf/D2%2048111-1-II%20Published%20Opinion.pdf


 Federal Law

Ninth Circuit of Appeals

Gonzalez v. Sherman: Reversing the district court’s dismissal of a California state prisoner’s habeas corpus petition and remanding, the panel held that a state court’s alteration of the number of presentence credits to which a prisoner was entitled under California law constitutes a new, intervening judgment which renders a subsequent federal habeas petition a first rather than second or successive petition under 28 U.S.C. § 2244(b)(1). http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/11/14-56855.pdf

Kirkpatrick v. Chappell:  The panel vacated the district court’s order dismissing for lack of exhaustion claims in William Kirkpatrick, Jr’s habeas corpus petition challenging his murder conviction and death sentence, and remanded to the district court so that it may adjudicate those claims on the merits.  The district court dismissed the claims as unexhausted on the grounds that, although Mr. Kirkpatrick presented them to the California Supreme Court, he subsequently waived them by means of a handwritten, pro se filing.  The California Supreme Court ruled that the handwritten form constituted a valid waiver despite the conclusion of the referee it appointed that there was not enough evidence that the waiver was made knowingly, voluntarily, and intelligently.  The district court agreed with the California Supreme Court.  The panel held that there is insufficient evidence in the record to support a finding that Mr. Kirkpatrick’s handwritten form constituted a valid waiver of his right to proceed and that the State of California failed to carry its burden to the contrary.  Consequently, the panel held that the district court erred in dismissing the claims as unexhausted.

Dissenting, Judge Kozinski wrote that the majority failed to defer to the California Supreme Court whose findings are supported by more than enough evidence, and that under de novo review Kirkpatrick would fare no better, but that none of this matters because California has no functional death penalty. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/14-99001.pdf

United States v. Bonnett:  Affirming a sentence for receipt and distribution of child pornography, the panel held that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1.  The panel explained that without any factual objections to resolve, there was no violation of Fed. R. Crim. P. 32.  The panel rejected the defendant’s challenge to an enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B) (2015) for distribution of pornography for a “thing of value.”  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/15-10557.pdf

United States v. Slade:  The panel vacated a sentence for being a felon in possession of a firearm, and remanded for resentencing, in a case in which the district court treated the defendant’s prior conviction under Washington’s second-degree assault statute, RCW 9A.36.021, as a “crime of violence” under the United States Sentencing Guidelines.   The panel held that United States v. Jennen, 596 F.3d 594 (9th Cir. 2010), in which this court affirmed a sentence when the district court had treated a prior conviction under section 9A.36.021(1)(c) as a crime of violence, has been effectively overruled by the Supreme Court’s decisions in Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016).  Applying United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the panel wrote that section 9A.36.021 criminalizes conduct that does not meet the generic federal definition of crime of violence and is not divisible.  The panel concluded that the district court therefore erred in applying the modified categorical approach and in determining that the defendant’s prior conviction constituted a crime of violence, which caused the district court to miscalculate the defendant’s base offense level and Guidelines range.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/16-30150.pdf