CJE Wire: Case Law Updates — 2018 August 3


 Washington State Courts

Washington State Supreme Court

State v. Black/In Re Detention of Black:  In a decision authored by Justice Yu and joined by Chief Justice Fairhurst and Justices Owens, Gonzalez, and Johnson, the Court found that the trial court did not err as a matter of law in admitting expert testimony on paraphilia NOS, a sexual deviancy diagnosis, nor did it abuse its discretion when it allowed an expert to describe Mr. Black’s specific paraphilic focus as “persistent sexual interest in pubescent aged females.”  Nor did the trial court err in excluding Mr. Black’s expert’s testimony on the controversy surrounding a similar diagnosis, as that diagnosis was not generally accepted in the scientific community.  The court observed that the State’s expert had diagnosed Mr. Black after reviewing approximately 4,000 pages of records, administering a psychological test, and interviewing Mr. Black in 2008 and 2011.  The Court noted that paraphilia is generally accepted in the scientific community and, contrary to Mr. Black’s arguments, does not focus on whether an individual’s sexual focus is abnormal, but on the consequences of the illness in his specific circumstances.  Here, Mr. Black demonstrated an “inability to control his behavior to such an extent that he has committed repeated sexual offenses against multiple children who were legally incapable of giving consent. As Dr. Arnold concluded in his evaluation, “despite prior sanctions for virtually identical grooming and sexually exploitive behavior, [Black] was unable to resist the opportunity to reoffend.” Because the diagnosis was appropriate and accepted within the scientific community, the Court found that the trial court did not err as a matter of law in accepting it into evidence. 

Dissenting, Justice Madsen, joined by Justices Wiggins, Gordon McCloud, and Stephens, argued that, despite the paraphilia NOS label, “the specifically identified condition substantially mirrors a diagnosis identified under another name—^hebephilia—that is controversial within the same scientific community.”  The dissent opined that by admitting the State’s expert’s testimony regarding paraphilia NOS but excluding Mr. Black’s expert’s testimony regarding Hebephilia and the controversy surrounding the diagnosis, the trial court improperly excluded rebuttal evidence crucial to Mr. Black’s case.  http://www.courts.wa.gov/opinions/pdf/944946.pdf

State v. Tyler:  In an opinion authored by Justice Stephens and joined by Justices Wiggins, Gonzalez, Johnson, Madsen, Owens, and Yu, the Court affirmed Mr. Tyler’s conviction for possession of a stolen vehicle.  The Court disagreed with Mr. Tyler’s position that the State was required to prove that he engaged in all the actions that constitute “possession” of a stolen vehicle because these were listed in the to-convict jury instruction. The Court further found there was sufficient evidence to establish he disposed of a stolen vehicle.  The Court held that its decision in Hickman was still good law despite the recent decision inState v. Johnson, but that Hickman’s law of the case doctrine is inapplicable in this case because possession of a stolen motor vehicle is a single means crime, and the given instructions did not alter that fact. Thus, the State had to prove only that Mr. Tyler possessed a stolen vehicle, not that he disposed of it, and the Court found it was “undisputed” that the evidence established possession.

Concurring, Justice Gordon McCloud, joined by Chief Justice Fairhurst, agreed that the statute criminalizing possession of a stolen vehicle is a single means crime.  The concurrence further agreed that the five different definitions of “possess” does not change this face.  However, the concurrence disagreed with the majority’s conclusion that the jury instructions made this fact clear to the jury, as the five different methods of accomplishing possession were listed without the disjunctive made the instructions ambiguous.  Thus, the concurrence argued, there should have been an analysis of whether the evidence proved that Mr. Tyler met all of the different definitions of possess which the concurrence argued that he did.  http://www.courts.wa.gov/opinions/pdf/937702.pdf

In Re Pers. Rest. Of Meredith:  In an opinion authored by Justice Owens and joined by the Chief Justice and Justices Wiggins, Johnson, Gonzalez, Madsen, Gordon McCloud, and Stephens, the Court held that Mr. Meredith’s appellate counsel was not ineffective for failing to raise an objection to the fact that the trial court erroneously gave the State and defense counsel one less preemptory challenge than they were entitled to under the Court Rules, as the claimed error was not objected to at trial and is not the type of structural error that requires automatic reversal. The Court distinguished Mr. Meredith’s case from those in which trial courts had given, and then rescinded, preemptory challenges, causing an objectionable juror to be seated on the venire.  The Court also declined to address the issue of the limiting instruction given to the jury that failed to advise them that Mr. Meredith’s prior convictions could only be used as evidence of one element on Count II of the information, not as evidence relating to the whole of that charge.  The Court found that the issue was insufficiently briefed and not a part of the appellate grant of review in the first place.

Concurring, Justice Yu wrote separately to emphasize that “jury selection is a critical part of trial and ought not to be treated as merely a prelude to the main event.”  Justice Yu agreed with the result in this case but argued that trial courts should make every effort to ensure litigants have a “meaningful opportunity to select an unbiased jury.”  http://www.courts.wa.gov/opinions/pdf/945829.pdf

In Re Pers. Rest. Of Light-Roth:  In an opinion authored by Justice Madsen and joined by Chief Justice Fairhurst, Justices Wiggins, Johnson, Owens, Stephens, and Yu, and Justice Pro Tem Van Deren, the Court found that the State Supreme Court’s decision in State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015), did not constitute a significant change in the law and could not be retroactively applied to relieve Mr. Light-Roth of any portion of his 335-month sentence, imposed when he was 21 years old.  The Court reasoned that the O’Dell decision found that while “age is not a per se mitigating factor automatically entitling every youthful defendant to an exceptional sentence, a trial court is permitted to consider youth as a mitigating factor.” In this way, the Court held, O’Dell broadened the Court’s understanding of youth as it relates to culpability but did not open up avenues of argument that had been previously foreclosed.  In fact, the Court noted, defense counsel had asked for consideration in sentencing due to Mr. Light-Roth’s age.

Concurring in the result, Justice Gonzalez agreed that Mr. Light-Roth was not entitled to relief, as the O’Dell decision was not material to his case, but argued that O’Dellshould have been found to be significant because it altered the Court’s understanding of prior decisions, and retroactive because it reinterpreted a provision in the SRA.  http://www.courts.wa.gov/opinions/pdf/949506.pdf

In Re Pers. Rest. Of Schorr:  In a unanimous decision authored by Justice Gordon McCloud, the Court found that Mr. Schorr’s guilty plea to first degree murder, first degree robbery, second degree arson, and first-degree theft in 2006 could be heard after the one-year time bar for personal restraint petitions (PRP) because Mr. Schorr’s petition was based solely on double jeopardy grounds.  The Court affirmed that double jeopardy challenges are exempt from the one-year time bar.  The Court further cited prior jurisprudence that held that challenges to sentences that exceed the court’s authority, such as a double jeopardy challenge, cannot be waived by a guilty plea such as the one entered in this case.  The Court found, however, that Mr. Schorr’s convictions did not violate double jeopardy protections.  http://www.courts.wa.gov/opinions/pdf/945918.pdf



Division II Court of Appeals

State v. Moen:  The Court affirmed Mr. Moen’s conviction for aggravated first degree murder and his sentence to mandatory life imprisonment without the possibility of parole.  The court found that the trial court did not err in refusing to excuse a juror on day 2 of the trial when she disclosed that she had met his family once in the past for about half an hour in her capacity as the director for a long-term care facility, when Mr. Moen’s family was looking into long term care after his self-inflicted head injury.   The Court also found that sentencing a defendant with dementia to mandatory life imprisonment without the possibility of parole under RCW 10.95.030(1) is not categorically barred by article I, section 14’s prohibition against cruel punishment.  http://www.courts.wa.gov/opinions/pdf/D2%2049474-4-II%20Published%20Opinion.pdf



Division III Court of Appeals

State v. Clements:  In this partially published opinion, the Court affirmed Ms. Clements’ convictions and exceptional sentence for first degree theft and first-degree identity theft. The Court found that the fact that the jury was momentarily discharged before being recalled to complete a corrected verdict form did not abrogate the conviction.  The jury had been given an erroneous verdict form referring to theft instead of identity theft and were returned to the jury room with blank verdict forms and no instructions as to what the error had been.  After brief deliberations, verdicts of guilty were again returned.  The Court found that the constitutional right to a verdict authorized by the jury is not implicated when jurors are re-empaneled, particularly after no more than two minutes had passed, as here.  Further, discharging a jury does not foreclose recall and did not impact Ms. Clements’ right to an impartial jury when there was no time for the jury to be involved in any activity that may have influenced their revised verdict.http://www.courts.wa.gov/opinions/pdf/351122_pub.pdf



 Federal Law

Ninth Circuit Court of Appeals

United States v. Mickey:  The panel affirmed convictions for two counts of sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1). The panel held that the district court did not err by refusing to give a specific unanimity instruction regarding which precise combination of means the defendant used to cause the victim to engage in a commercial sex act.  The panel rejected the defendant’s contention that force, threats of force, fraud, and coercion are separate elements of the crime. The panel held that although the prosecution technically erred in failing to include the statutory phrase “or any combination of such means” in the indictment, inclusion of that phrase in the jury instructions and Special Verdict Form did not constitute a constructive amendment of the indictment. The panel wrote that the defendant cannot show prejudice and concluded that there was no plain error. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-50343.pdf

United States v. Ochoa-Orogel:  Reversing a conviction for unlawful re-entry into the United States in violation of 8 U.S.C. § 1326, the panel held that the defendant’s 2008 and 2011 removals were fundamentally unfair, and neither can serve as a predicate removal for purposes of § 1326.  

 The panel held that because the 2008 removal proceeding was in absentia, the defendant satisfied the exhaustion and deprivation-of-judicial-review requirements for bringing a collateral attack on the validity of that removal, which was based on a prior conviction for California domestic violence battery. The panel also held that because circuit precedent at the time of the 2008 removal hearing established that California battery was not a categorical crime of violence, it was error to remove the defendant for a crime of domestic violence under Section 237(a)(2)(E)(i) of the Immigration and Nationality Act based on his California battery conviction. The panel held that the due process defects in the 2008 removal proceeding infected the defendant’s 2011 expedited removal for presenting invalid entry documents. The panel wrote that a person should not be stripped of the important legal entitlements that come with lawful permanent resident status – including protection against expedited removal – through a legally erroneous decision that he or she had no meaningful opportunity to contest.  The panel rejected the government’s contention that the defendant was not prejudiced.  The panel explained that if the defendant was still a lawful permanent resident, his entry documents were not invalid, and even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/02/16-50413.pdf