CJE Wire: Case Law Updates — 2017 September 22


 Washington State Courts

Division III Court of Appeals

State v. D.E.D.: The Court overturned D.E.D.’s juvenile adjudication finding him guilty of obstructing a public servant, concluding that “his passive resistance to an investigatory stop was not a crime under these facts.” D.E.D was stopped after a call to 911 complaining of a group of youth in front of the caller’s house who “did not belong in the neighborhood.” The responding officer found no group, only the defendant making his way down the street. With no justification to contact him, the officer nonetheless attempted to engage D.E.D. in conversation, which was met with open hostility. The officer then received a call about a group of young men with a gun nearby but, rather than allowing D.E.D. to continue on his way, the officer attempted to handcuff him, though telling him he was not under arrest. D.E.D resisted being handcuffed, and was then arrested for obstruction. The Court held that there is “no duty to cooperate with police,” and that lack of cooperation with an investigation cannot be used as the basis for an obstruction charge. Specifically, the Court found that “passive resistance consistent with the lack of a duty to cooperate…is not criminal behavior.” The Court cautioned against extending the holding to instances of more active resistance, however.

Concurring, Judge Fearing agreed with the conclusion, but disagreed with the basis, arguing that the officer had no reasonable suspicion that D.E.D had engaged in criminal activity, such that the officer had a basis to conduct a Terry stop. Further, the concurrence disagreed that there was no duty to cooperate with police if in fact the stop had been lawful. Judge Fearing opined that the detainee at the least “should cooperate by standing still and refraining from struggling with the officer.” http://www.courts.wa.gov/opinions/pdf/338584_pub.pdf



 Federal Law

Ninth Circuit of Appeals

Browning v. Baker: The panel affirmed the district court’s denial of Paul Browning’s habeas corpus petition as to his escape conviction; reversed the district court’s denial of the petition as to Mr. 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’ expectation of a benefit for his testimony, and the precise description of the assailant’s hairstyle received from the victim were all favorable to Mr. 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 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 Napue. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/20/15-99002.pdf