“He Took It Like a Man”: Harvey Weinstein’s Conviction and the Limits of Discrimination Law

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent conviction of Harvey Weinstein for criminal sexual assault in the first degree and rape in the third degree. Grossman points out that our country’s antidiscrimination laws do not actually protect the people they intend to protect, instead focusing on employer policies and procedures. She argues that we should take this opportunity to learn from the system of criminal law, which did work in this case, to fix the antidiscrimination laws that purport to protect against sexual harassment and misconduct.

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Holguin-Hernandez v. United States

Court: US Supreme Court

Docket: 18-7739

Opinion Date: February 26, 2020

Judge: Stephen G. Breyer

Areas of Law: Criminal Law

Holguin was convicted on drug charges and sentenced to imprisonment and supervised release while he was still serving a term of supervised release for an earlier conviction. The prosecution sought an additional consecutive prison term of 12-18 months for violating the conditions of the earlier term. Holguin countered that 18 U.S.C. 3553’s sentencing factors either did not support imposing any additional time or supported a sentence shorter than 12 months. The court imposed a consecutive 12-month term. The Fifth Circuit held that Holguin had forfeited his argument that the sentence was greater than necessary to accomplish the goals of sentencing by failing to object to the reasonableness of the sentence in the district court. A unanimous Supreme Court vacated. Holguin’s district-court argument for a specific sentence (less than 12 months) preserved his claim on appeal that the sentence imposed was unreasonably long. A party who informs the court of the “action” he “wishes the court to take,” Federal Rule of Criminal Procedure 51(b), ordinarily brings to the court’s attention his objection to a contrary decision. Judges, knowing their duty under section 3553(a) to impose a sentence sufficient, but not greater than necessary, to serve the purposes of sentencing, would ordinarily understand that a defendant in that circumstance was arguing that the shorter sentence would be “sufficient” and a longer sentence “greater than necessary.” Nothing more is needed to preserve a claim that a longer sentence is unreasonable. In any case, “reasonableness” is an appellate standard, not the substantive standard that trial courts apply under section 3553(a).

McKinney v. Arizona

Court: US Supreme Court

Docket: 18-1109

Opinion Date: February 25, 2020

Judge: Brett M. Kavanaugh

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

A jury found McKinney guilty of two counts of first-degree murder. The judge weighed the aggravating and mitigating circumstances and sentenced McKinney to death. Nearly 20 years later, the Ninth Circuit held on habeas review that the Arizona courts violated Supreme Court precedent (Eddings), by failing to properly consider as relevant mitigating evidence McKinney’s posttraumatic stress disorder. On return to the Arizona Supreme Court, McKinney argued that he was entitled to a jury resentencing, but the court reweighed the aggravating and mitigating circumstances, as permitted by “Clemons,” and upheld both death sentences. The Supreme Court affirmed. A Clemons reweighing is a permissible remedy for an Eddings error; when an Eddings error is found on collateral review, a state appellate court may conduct a Clemons reweighing on collateral review. Clemons did not depend on any unique effect of aggravators as distinct from mitigators. The Court’s holdings in Ring v. Arizona and Hurst v. Florida, that a jury must find the aggravating circumstance that makes the defendant death-eligible, do not mean that a jury is constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision. While an Arizona trial court, not the jury, made the initial aggravating circumstance finding that made McKinney eligible for the death penalty, his case became final on direct review long before Ring and Hurst, which do not apply retroactively on collateral review, The Arizona Supreme Court’s 2018 decision reweighing the factors did not constitute a reopening of direct review.

Shular v. United States

Court: US Supreme Court

Docket: 18-6662

Opinion Date: February 26, 2020

Judge: Ruth Bader Ginsburg

Areas of Law: Constitutional Law, Criminal Law

The Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence for a defendant convicted of being a felon in possession of a firearm who has at least three convictions for “serious drug offense[s],” 18 U.S.C. 924(e)(1). A state offense ranks as a “serious drug offense” if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Shular pleaded guilty to being a felon in possession of a firearm. The Eleventh Circuit affirmed Shular’s 15-year sentence, ACCA’s mandatory minimum, based on his six prior cocaine-related convictions under Florida law. A unanimous Supreme Court affirmed. A “categorical approach” is often used to determine whether an offender’s prior convictions qualify for ACCA enhancement. That approach looks “only to the statutory definitions" of the prior offenses; the court must come up with a “generic” version of a crime (the elements of the offense as commonly understood) and then determine whether the statutory elements of the offense of conviction match those of the generic crime. Section 924(e)(2)(A)(ii)’s “serious drug offense” definition does not require a categorical approach but requires only that the state offense involved the conduct specified in the statute. The statutory text and context show that 924(e)(2)(A)(ii) refers to conduct, not offenses. State laws in existence at the time of 924(e)(2)(A)(ii)’s enactment lacked common nomenclature; the solution to identify offenses by the conduct involved, not by the name of the offenses.

United States v. Ojeda

Court: US Court of Appeals for the Second Circuit

Docket: 18-1770

Opinion Date: February 24, 2020

Judge: Reena Raggi

Areas of Law: Criminal Law

The Second Circuit affirmed defendant's sentence after he pleaded guilty to being a felon in possession of a firearm and obstructing justice. The court held that defendant's prior conviction for New York first degree robbery was a violent felony as defined in the Armed Career Criminal Act (ACCA), because the forcible‐takings element common to New York robbery in every degree requires the use or threatened use of physical force as defined by the Supreme Court in Curtis Johnson v. United States, 559 U.S. 133, and Stokeling v. United States, 139 S. Ct. 544. The court explained that Samuel Johnson v. United States, 135 S. Ct. 2551, which invalidated the ACCA's residual clause definition of violent felony as unconstitutionally vague, does not undermine this court's precedents, both before and after Samuel Johnson, recognizing attempted drug sales or attempted drug possession with intent to sell in violation of New York law as serious drug offenses under the ACCA. Finally, the court held that the district court correctly followed controlling precedent in identifying defendant's two prior New York State drug convictions, one for attempted drug sale and the other for attempted drug possession with intent to sell, as serious drug offenses under the ACCA.

United States v. Baxter

Court: US Court of Appeals for the Third Circuit

Docket: 18-3613

Opinion Date: February 21, 2020

Judge: Smith

Areas of Law: Constitutional Law, Criminal Law

Customs and Border Protection K-9 Officer Lopez was working at the airport in St. Thomas and took his certified canine, Bo, into a cargo plane to inspect incoming mail. Bo alerted to a package, indicating the presence of drugs. The package purportedly had been sent by Price, whose address was in South Carolina, and had been mailed to Meade in St. Thomas. Kouns removed it from the plane, opened the box and brought out a piece of clothing that smelled strongly of marijuana, although no drugs were found. When Kouns returned the item to the box, a magazine and round of ammunition fell to the floor. The officers discovered the unassembled parts of a gun. Days later, a postal inspector contacted Customs regarding another package, bearing the same names and addresses. Lopez and Kouns responded. Because of the addresses and the package's weight, Kouns suspected it might contain another gun. An x-ray revealed items an apparent gun and ammunition. Kouns opened the package and discovered a gun and ammunition. Homeland Security arranged a controlled delivery of the packages. Authorities apprehended Baxter as the sender of the packages; he was charged with two counts of illegal transport of a firearm, 18 U.S.C. 922(a)(5). The District Court of the Virgin Islands granted his motion to suppress. The Third Circuit vacated, holding that Customs permissibly conducted the searches pursuant to the border search exception to the Fourth Amendment.

United States v. Diaz

Court: US Court of Appeals for the Third Circuit

Docket: 18-2157

Opinion Date: February 25, 2020

Judge: Rendell

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Diaz was charged with conspiracy to distribute and possess with intent to distribute drugs. His five co-defendants pled guilty. Albert-Heise, assigned to represent Diaz, accepted a new position. Dissatisfied with his newly-appointed attorney, O’Brien, Diaz requested new counsel, stating that O’Brien pressured him to plead guilty, did not accept Diaz’s advice on pretrial motions, and failed to share discovery. The district court then appointed Kalinowski. Diaz subsequently complained about Kalinowski’s failure to communicate with him. Kalinowski never complied with a court order to respond to Diaz. Diaz again requested new counsel. The court did not inquire further or schedule any hearing and granted a continuance without commenting on Diaz’s request for new counsel. Diaz and Kalinowski appeared together for a pretrial conference; neither raised any issue related to the representation. Twice more, Diaz wrote to the court complaining of Kalinowski. The case proceeded to trial with Kalinowski representing Diaz. The Third Circuit affirmed his conviction, despite expressing concern that the district court “may not have been as attentive to Diaz’s complaints regarding his counsel as it should have been,” and that certain testimony by a government witness violated Rule 701 (lay opinion testimony). The improper testimony did not prejudice Diaz so as to affect his substantial rights. The court did not clearly err when it attributed more than 20 grams of heroin to Diaz at sentencing.

United States v. Ath

Court: US Court of Appeals for the Fourth Circuit

Docket: 18-4823

Opinion Date: February 21, 2020

Judge: Roger L. Gregory

Areas of Law: Criminal Law

The Fourth Circuit affirmed defendant's three drug-related convictions. The court held that the evidence was sufficient to support defendant's conviction for conspiracy to possess with intent to distribute and distribute methamphetamine, because the evidence was sufficient for a reasonable jury to find proof beyond a reasonable doubt that defendant knew of the conspiracy and knowingly and voluntarily became a part of it; the evidence was sufficient to support defendant's conviction for use of a communication facility in the commission of a drug felony where a reasonable jury could infer from defendant's actions that he knew he was using the mail to transfer controlled substances; and sufficient evidence supported defendant's conviction for possessing and distributing a controlled substance where a reasonable jury could find beyond a reasonable doubt that defendant knew the package at issue contained methamphetamine. Finally, the court held that the record did not support a finding of willful blindness, because the court could not identify any deliberate actions that defendant took to avoid learning of the conspiracy or the contents of the package that was shipped to his residence.

United States v. Williams

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-60463

Opinion Date: February 27, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's sentence under the Armed Career Criminal Act (ACCA) imposed after he pleaded guilty to possessing a firearm after a felony conviction. Defendant argued that he could not be sentenced under the ACCA because 18 U.S.C. 924(a)(2), not 924(e), was charged in the indictment, and that his 2008 Mississippi robbery conviction does not constitute a violent felony conviction under the ACCA. Defendant conceded that his arguments are contrary to precedent but, nonetheless, wished to preserve the issues for further review. The court held that defendant's argument that the district court erred in sentencing him under the ACCA because section 924(e) was not cited in the indictment was unavailing. Furthermore, the court rejected defendant's challenges to his conviction for Mississippi robbery in light of its prior rulings and defendant's failure to cite Mississippi case law that establishes a realistic probability that Mississippi courts would apply the robbery statute to conduct that does not involve "the use, attempted use, or threatened use of physical force against the person of another."

J.H. v. Williamson County

Court: US Court of Appeals for the Sixth Circuit

Docket: 18-5874

Opinion Date: February 27, 2020

Judge: R[ansey] Guy Cole, Jr.

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Juvenile Law

J.H., a 14-year-old pretrial detainee, was placed in segregated housing in Williamson County’s juvenile detention facility after other juveniles alleged that he threatened to assault them. J.H. suffers from Pediatric Autoimmune Neuropsychiatric Disorder Associated with Streptococcal Infections (PANDAS), which often manifests in psychiatric symptoms. In a suit under 42 U.S.C. 1983, J.H. alleged that his placement in segregated housing for a month in 2013 amounted to unconstitutional punishment; that a detention monitor, Cruz, sexually assaulted him during this period, as a result of Williamson County’s failure to train Cruz; and that during that period, officials failed to provide adequate medical care. The Sixth Circuit affirmed summary judgment in favor of the defendants. The official is entitled to qualified immunity. While the punishment imposed on J.H. was excessive in relation to the verbal threats he made, the right at issue was not established with sufficient specificity as to hold it clearly established as of 2013. J.H. met with and received medication from multiple medical professionals, none of whom requested that the facility make any accommodations for J.H.’s medical needs. J.H. has not shown a “direct causal connection” between the failure to train Cruz and his alleged assault; it is far from clear that any lack of training was the “moving force” behind Cruz’s decision to sexually assault a child.

United States v. Chavez

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-5016

Opinion Date: February 21, 2020

Judge: Thapar

Areas of Law: Criminal Law, Health Law, White Collar Crime

Four men from Miami drove to Louisville to set up chiropractic clinics. Lezcano, the mastermind, decided to file false claims with the patients’ insurers and get paid for treatments that never happened. The others, Chavez, Betancourt, and Diaz joined in. The plan worked due to aggressive marketing. The conspirators recruited and paid patients both to come to the clinics and to recruit others. Many of the patients worked at the Jeffboat shipyard. Jeffboat (through its claim administrator, United Healthcare) paid the clinics more than $1 million for fake injections of a muscle relaxant. The government discovered the scheme and brought criminal charges. Chavez went to trial, claiming he had no idea that Lezcano was cooking the books. Convicted of healthcare fraud, conspiracy to commit healthcare fraud, aggravated identity theft, and conspiracy to commit money laundering for purposes of concealment. Chavez was sentenced to 74 months’ imprisonment. The Sixth Circuit affirmed, rejecting his challenges to the sufficiency of the evidence and a related challenge to the prosecutor’s closing argument; two hearsay arguments; three objections to the jury instructions; and a sentencing argument.

Rhodes v. Smith

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3581

Opinion Date: February 24, 2020

Judge: Grasz

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Eighth Circuit affirmed the district court's denial of a third successive federal habeas corpus petition challenging petitioner's state law murder conviction. The court held that the district court did not err in finding that it lacked jurisdiction to hear the petition because he failed to establish by clear and convincing evidence it was more likely than not that no reasonable jury would have found him guilty beyond a reasonable doubt. Because petitioner failed to make out a colorable claim under 28 U.S.C. 2254(e)(2)(B), he was not entitled to an evidentiary hearing.

United States v. Harris

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-1174

Opinion Date: February 21, 2020

Judge: Melloy

Areas of Law: Criminal Law

The Eighth Circuit reversed defendant's sentence imposed after he pleaded guilty to distributing methamphetamine. The court held that the district court erred in finding that defendant's prior Arkansas conviction for terroristic threatening was a crime of violence under USSG 4B1.1(a). In this case, the available materials suggest that the "injury to persons" and "injury to property" components of the Class B felony's mens rea requirement are different means of satisfying a single mens rea element and not alternative elements defining different crimes. Therefore, the court concluded that the categorical approach's "demand for certainty" has not been met. However, the court held that the district court did not err in finding defendant's conviction for second degree battery qualified as a crime of violence under section 4B1.1(a). Accordingly, the court remanded for resentencing.

United States v. Hoeffener

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1192

Opinion Date: February 24, 2020

Judge: Erickson

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction and sentence for one count of receipt of child pornography and two counts of possession of child pornography. The court held that the district court did not abuse its discretion in denying defendant's motion to compel discovery requiring the government to produce the source code, manuals, and software for Torrential Downpour. In this case, defendant's mere speculation that the software program could possibly access non-public areas of his computer or that there was a possibility that it malfunctioned during the officers' investigation into defendant's sharing of child pornography was insufficient to meet the requisite threshold showing of materiality to his defense. The court also held that the district court did not err in denying defendant's motion to suppress evidence that officers obtained while using the program where a defendant has no legitimate expectation of privacy in files made available to the public through peer-to-peer file-sharing networks; the magistrate judge did not abuse her discretion in denying defendant's request for a Franks hearing; and defendant's motion to suppress his post-Miranda statements was properly denied. Finally, the court held that defendant's disagreement with the weight the district court gave to his age and sex offender treatment history was insufficient to rebut the presumption of reasonableness of his sentence.

United States v. Jawher

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1276

Opinion Date: February 24, 2020

Judge: Melloy

Areas of Law: Criminal Law

The Eighth Circuit reversed defendant's conviction for possessing a firearm while being an alien illegally or unlawfully in the United States. The court held that, based on Rehaif v. United States, 139 S. Ct. 2191 (2019), the district court plainly erred by accepting defendant's guilty plea under Federal Rule of Criminal Procedure 11, because the district court failed to advise defendant that the government would need to establish beyond a reasonable doubt at trial that he knew that he was illegally present in the United States, or to examine the record to determine whether there was a factual basis for finding such knowledge. Furthermore, the error affected defendant's substantial rights where, but for the error, he would not have pleaded guilty. Accordingly, the court vacated defendant's plea and remanded for further proceedings.

United States v. Luscombe

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3355

Opinion Date: February 21, 2020

Judge: Bobby E. Shepherd

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction and sentence for three counts of wire fraud, two counts of mail fraud, and one count of money laundering. The court held that the district court did not err in failing to sua sponte revoke defendant's right to self-representation on the first day of trial or to hold a competency hearing, and the district court did not abuse its discretion in declining to grant a new trial on that basis. The court also held that the district court did not err by terminating defendant's self-representation during the third day of trial and in directing standby counsel to take over his defense. In this case, the totality of defendant's behavior supported the district court's decision to terminate defendant's self-representation. Finally, the court held that the district court adequately explained the basis for the upward variance in light of the 18 U.S.C. 3553(a) factors; defendant's sentence was not substantively unreasonable; and the district court did not abuse its discretion in sentencing defendant.

United States v. Timmons

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1972

Opinion Date: February 24, 2020

Judge: Kobes

Areas of Law: Criminal Law

The Eighth Circuit reversed the district court's revocation of defendant's supervise release, holding that the district court denied him the right to confront the key witness against him at his revocation hearing. The court held that the government failed to provide a reasonably satisfactory explanation for not producing the witness and failed to show that the witness's recorded police statement was inherently reliable. Finally, denying defendant the opportunity to confront the witness was not harmless. The court declined to remand to the district court for a new hearing without providing the government the opportunity to expand the record and bring in live testimony from the witness.

United States v. Welch

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-3530

Opinion Date: February 27, 2020

Judge: Grasz

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction for illegal gun possession. The court held that, under the totality of the circumstances, the police officers had probable cause to arrest defendant. Furthermore, defendant's age, intelligence, sobriety, and experience with the criminal justice system, coupled with his Miranda warning, supported a finding that he voluntarily consented to a cheek swab for a DNA sample. Therefore, the district court properly denied defendant's motion to suppress the DNA evidence. The court also held that the district court did not abuse its discretion by admitting evidence of the synthetic marijuana evidence, because it made it more likely that defendant knew of and possessed the firearm. Finally, the court rejected defendant's argument under Rehaif v. United States, 139 S. Ct. 2191 (2019), and held that it was not reasonably probable that, if the government had to prove defendant's knowledge of a previous conviction for "a crime punishable by imprisonment for a term exceeding one year," he would have been acquitted.

United States v. Williams

Court: US Court of Appeals for the Eighth Circuit

Docket: 18-1445

Opinion Date: February 27, 2020

Judge: Kobes

Areas of Law: Criminal Law

The Eighth Circuit affirmed defendant's conviction for one count of felon in possession of a firearm, two counts of possession with intent to distribute cocaine and marijuana, one count of maintaining a premise for the purpose of distributing a controlled substance, and one count of possessing a firearm in furtherance of a drug trafficking crime. The court held that the district court did not abuse its discretion by admitting evidence seized after a warrantless protective sweep under the plain view doctrine; defendant failed to show that the government deleted any exculpatory evidence; defendant validly waived his right to proceed with a jury trial; and the district court did not err in denying defendant's motion to proceed pro se.

Allen v. Ives

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-35001

Opinion Date: February 24, 2020

Judge: William A. Fletcher

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Ninth Circuit reversed the district court's dismissal of a 28 U.S.C. 2241 petition for habeas relief based on lack of jurisdiction. Petitioner claimed actual innocence of his sentence as a career offender. The panel held that petitioner's appeal was not moot, because petitioner had a nontrivial argument for reducing his supervised release period under 18 U.S.C. 3583(e). The panel also held that petitioner has made a cognizable claim that he is actually innocent of a noncapital sentence for purposes of qualifying for the escape hatch, and that he has not had an unobstructed procedural shot at presenting the claim. The panel clarified that Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 570 U.S. 254 (2013), apply retroactively when a court reviews a criminal judgment in the course of addressing a section 2241 petition or a first section 2255 motion. The panel concluded that petitioner may file a petition for habeas corpus under section 2241 and the panel remanded for reconsideration of petitioner's claim on the merits.

Ross v. Williams

Court: US Court of Appeals for the Ninth Circuit

Docket: 16-16533

Opinion Date: February 24, 2020

Judge: Friedland

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Federal Rules of Civil Procedure 15(c)(1)(B) and 10(c) apply in habeas proceedings. The en banc court reversed the district court's dismissal of petitioner's amended habeas corpus petition as time-barred. Petitioner challenged his Nevada state conviction for theft-related offenses, asserting multiple claims, including the ineffective assistance of counsel. The en banc court held that claims in petitioner's amended petition that share core operative facts in common with those in his original petition relate back to the original petition and should not have been dismissed. However, the en banc court did not typically consider in the first instance issues not discussed by the district court, and thus the en banc court remanded for the district court to consider which of the claims in the amended petition are supported by facts incorporated into the original petition.

United States v. Arpaio

Court: US Court of Appeals for the Ninth Circuit

Docket: 17-10448

Opinion Date: February 27, 2020

Judge: Jay S. Bybee

Areas of Law: Criminal Law

After defendant was found guilty of criminal contempt in a bench trial for willfully violating a preliminary injunction prohibiting him from enforcing federal civil immigration law, he was granted a pardon by the President. The district court granted defendant's motion to dismiss the case with prejudice, but refused to vacate the guilty verdict. The Ninth Circuit affirmed the district court's judgment, holding that United States v. Munsingwear, Inc., 340 U.S. 36 (1950), which provides for vacatur in cases mooted while on appeal, did not apply in this case. Because the mootness issue here arises from the fact that the district court's findings of guilt can be given no future preclusive effect, the panel held that the Munsingwear rule did not apply to defendant and he was not entitled to vacatur. In this case, defendant was never sentenced and thus there was no final judgment of conviction. Furthermore, the verdict was not essential to the judgment, but was inconsistent with, the final judgment, which dismissed the criminal contempt charge. Finally, defendant's challenges to the district court's finding of guilt were moot and thus the panel did not address them.

Rainer v. Hansen

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-1427

Opinion Date: February 25, 2020

Judge: Robert Edwin Bacharach

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

After committing crimes when he was seventeen years old, defendant Atorrus Rainer was convicted of two counts of attempted first-degree murder, two counts of first-degree assault, one count of first-degree burglary, and one count of aggravated robbery. For these crimes, the district court sentenced Mr. Rainer to 224 years in prison. On direct appeal, the convictions were affirmed. But the Colorado Court of Appeals ordered modification of the sentences, concluding that the prison terms for attempted first-degree murder and first-degree assault should have run concurrently, rather than consecutively, because the crimes could have been based on identical evidence. The Colorado Court of Appeals thus modified Mr. Rainer’s sentences to run for 112 years. After the direct appeal, the Supreme Court held in Graham v. Florida, 560 U.S. 48 (2010), that the Eighth Amendment prohibited life imprisonment without the possibility of parole for juveniles convicted of nonhomicide crimes. Under Graham, these juveniles were entitled to a meaningful opportunity for release based on demonstrated maturity and rehabilitation. Defendant sought habeas relief, claiming the State of Colorado deprived him of this opportunity by imposing the 112-year sentence for the crimes he committed as a juvenile. The Tenth Circuit Court of Appeals concluded the State provided defendant with the required opportunity through the combination of the Juveniles convicted as Adults Program, and the general parole program.

United States v. Bacon

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-4163

Opinion Date: February 21, 2020

Judge: Mary Beck Briscoe

Areas of Law: Constitutional Law, Criminal Law

Defendant-Appellant Michael Bacon appealed a district court’s decision to keep the supplement to his plea agreement filed under seal. In 2015, Bacon pleaded guilty to two counts of bank robbery and one count of robbing a credit union, pursuant to a written plea agreement. At his combined plea and sentencing hearing, the district court asked Bacon if he had signed the documents relating to his plea agreement. After responding that he had not, Bacon’s counsel explained that Bacon was “concerned about the [plea] supplement” and asked “for permission to file the plea agreement without the [plea] supplement. The district court responded that under Utah local rules, supplements were sealed in every case, “and we do that to protect the rare person who does cooperate.” Plea supplements describe the nature of the defendant’s cooperation with the government or lack thereof. Bacon ultimately refused to sign his plea supplement, explaining to the court that “[w]hen you go off to prison and you’ve got something sealed inside your paperwork and the yard gets the paperwork and they see you’ve got a sealed document, they think you cooperated, and they want to hurt you.” His counsel signed it on his behalf. At Bacon’s resentencing, the parties did not dispute that Bacon’s supervised release term should have been reduced to 36 months, however, a dispute emerged over the sealed plea supplement. Bacon addressed the court himself, regarding the sealed plea supplement, stating, “If I don’t wan’t [sic] to place my life in jeopardy, I don’t see how the federal government can force me to do that.” Bacon contended the district court erred by failing to consider the common law right of access to court documents and by failing to make case-specific findings regarding sealing on the record. The Tenth Circuit determined defendant was challenging the district court’s decision to keep a specific document under seal, not its authority to enact a local rule. “A presumption of openness must be overcome for a judicial record to remain under seal. The record demonstrates that the district court did not consider this presumption of access to judicial records.” Because the Court determined the district court failed to articulate a case-specific reason for its sealing decision, its decision was vacated and the matter remanded.

United States v. Lovato

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-1468

Opinion Date: February 27, 2020

Judge: Carson

Areas of Law: Constitutional Law, Criminal Law

On March 3, 2018, a man called 911 to report that he witnessed two men in a Honda shoot at another car. The caller followed the Honda and dialed 911 within “two to three minutes” of observing the gunfire. During the approximately thirteen-minute 911 call, the caller discussed the shooting, his continuing observations of the Honda and its occupants, and his safety, often in response to the 911 operator’s questions. Shortly thereafter, responding police officer Levi Braun (“Officer Braun”) located a Honda matching the caller’s description. With Officer Braun in pursuit, the Honda slowed down and Defendant Daniel Lovato jumped out of the passenger’s side of the moving car. Officer Braun stopped to detain Defendant, who volunteered that he had a gun on him. Officer Braun then retrieved a .22 caliber pistol from Defendant’s waistband, along with thirty-two rounds of .22 caliber ammunition from Defendant’s left front pants pocket. At the time of this incident, Defendant had prior felony convictions. The government ultimately charged Defendant with three counts of being a felon in possession of a firearm or ammunition: one each for possessing the .22 caliber pistol, thirty-two rounds of .22 caliber ammunition, and canister full of additional ammunition. At trial, Defendant objected to the admission of the 911 call on hearsay grounds. The district court overruled the objection and admitted the 911 call into evidence under the present sense impression exception to the rule against hearsay. A jury convicted Defendant as charged, and the district court sentenced Defendant to 100 months’ imprisonment followed by three years of supervised release. On appeal, Defendant alleged the district court abused its discretion in admitting the 911 call. Finding no reversible error as to Defendant's conviction, the Tenth Circuit affirmed. The Court vacated a special condition and remanded on that issue for further proceedings.

United States v. Smith

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 18-3010

Opinion Date: February 25, 2020

Judge: Thomas Beall Griffith

Areas of Law: Criminal Law

The DC Circuit affirmed defendants' convictions for conspiracy to commit bank robbery by intimidation. The court held that the evidence was sufficient to support the jury's finding that defendants agreed to rob by intimidation. In this case, the court considered the record as a whole, including defendants' demands and the bank tellers' fear.

People v. McKenzie

Court: Supreme Court of California

Docket: S251333

Opinion Date: February 27, 2020

Judge: Ming Chin

Areas of Law: Criminal Law

The Supreme Court affirmed the court of appeal's judgment ordering four of Defendant's sentence enhancements stricken, holding that a convicted defendant who is placed on probation after imposition of sentence is suspended, and who does not timely appeal from the order granting probation, may take advantage of ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence. In three separate cases, Defendant pleaded guilty to drug-related offenses and admitting having sustained four prior felony drug-related convictions for purposes of sentence enhancement under Cal. Health & Safety Code former 11370.2. The trial court later revoked probation and imposed a prison sentence that included four three-year prior drug conviction enhancements under former section 11370.2(c). Thereafter, the governor signed Senate Bill No. 180, which revised section 11370.2 so that Defendant's prior drug-related convictions no longer qualified Defendant for sentence enhancement. The Supreme Court remanded the case for reconsideration in light of the revised statute. On remand, the court of appeal concluded that Defendant could take advantage of the revisions to the statute that rendered the sentence enhancements inapplicable to Defendant's prior drug-related convictions. The Supreme Court affirmed, holding that the Legislature must have intended section 11370.2's ameliorative changes to operate in cases like this one.

People v. Perez

Court: Supreme Court of California

Docket: S248730

Opinion Date: February 27, 2020

Judge: Groban

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court reversed the judgment of the court of appeal concluding that a defense counsel's failure to object at trial, before People v. Sanchez, 63 Cal.4th 665 (2016), was decided, forfeited a claim that a gang expert's testimony related case-specific hearsay in violation of the confrontation clause, holding that a defense counsel's failure to object under such circumstances does not forfeit a claim based on Sanchez. Sanchez held that an expert cannot relate case-specific hearsay to explain the basis for her opinion unless the facts are independently proven or fall within a hearsay exception. Defendants in the instant case were each convicted of two counts of first degree special circumstance murder and other crimes. Before Defendants' appeals were resolved, the Supreme Court issued its opinion in Sanchez. On appeal, one of the defendants argued that a gang expert testified to case-specific hearsay in violation of the confrontation clause. The court of appeal held that the defendant's failure to object to case-specific hearsay in expert testimony at trial forfeited any Sanchez claim on appeal. The Supreme Court reversed, holding that the court of appeal erred in finding that the defendant forfeited his claim on appeal based on Sanchez by failing to object at a trial that occurred before Sanchez was decided.

People v. Veamatahau

Court: Supreme Court of California

Docket: S249872

Opinion Date: February 27, 2020

Judge: Tani Cantil-Sakauye

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the court of appeals concluding that the admission of expert testimony did not violate the prohibition against communication of case-specific hearsay set forth in People v. Sanchez, 63 Cal.4th 665 (2016) and that sufficient evidence supported Defendant's conviction for possession of alprazolam, holding that the court of appeal did not err. Sanchez held that an expert cannot relate case-specific hearsay to explain the basis for his or her opinion unless the facts are independently proven or fall within a hearsay exception. In the instant case, an expert told the jury that he identified the controlled substance Defendant was charged with possessing by comparing the visual characteristics of the pills seized against a database containing descriptions of pharmaceuticals. On appeal, Defendant argued that the expert related inadmissible case-specific hearsay. The court of appeal affirmed. The Supreme Court affirmed, holding (1) the expert related no inadmissible case-specific hearsay in testifying to the contents of a drug identification database; and (2) substantial evidence supported Defendant's conviction.

California v. Cota

Court: California Courts of Appeal

Docket: D074935(Fourth Appellate District)

Opinion Date: February 26, 2020

Judge: Cynthia Aaron

Areas of Law: Constitutional Law, Criminal Law

Fernando Cota pled guilty to felony carrying a concealed dirk or dagger in exchange for three years of probation and the possibility that the charge might be reduced to a misdemeanor at the end of one year. The trial court imposed various probation conditions that Cota objected to in the trial court and challenged on appeal. Based on the California Supreme Court's recent decision in In re Ricardo P., 7 Cal.5th 1113 (2019), the Court of Appeal concluded that an electronics search condition that the court imposed was unreasonable, but remanded for further consideration of a potentially appropriate electronics search condition. The Court upheld the remaining challenged conditions. Cota also challenged the trial court's imposition of various fees and a restitution fine, arguing that due process required a finding of ability to pay before such charges may be imposed. He requested a remand to the trial court for a hearing to consider his ability to pay the fines and fees assessed at sentencing. To this, the Court of Appeal concluded due process did not bar the imposition of the assessments and fine that Cota challenged and that remand on this issue was therefore not required. In all other respects, judgment was affirmed.

California v. Gastelum

Court: California Courts of Appeal

Docket: D075368A(Fourth Appellate District)

Opinion Date: February 25, 2020

Judge: Guerrero

Areas of Law: Constitutional Law, Criminal Law

Victor Gastelum was convicted by jury of the first degree murder of Terrance Rodgers with the special circumstance of lying-in-wait, and the premeditated attempted murder of J.W. As to both offenses, the jury found that Gastelum participated with the knowledge that another principal in the offense was armed with a firearm. In bifurcated proceedings, the trial court found that Gastelum had suffered a prior prison term and had not remained free of custody or subsequent offense for five years thereafter, therefore sentencing him to consecutive indeterminate terms of life imprisonment without the possibility of parole and life imprisonment with the possibility of parole, plus three years. Gastelum appealed, contending: (1) the trial court erred under California v. Chiu, 59 Cal.4th 155 (2014) by instructing the jury that he could be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine; and (2) the court erred by instructing the jury that it could find true the lying-in-wait special circumstance if it found Gastelum acted with "intent to kill," without specifying whom Gastelum must have intended to kill. In its original opinion, the Court of Appeal found Gastelum's contentions unpersuasive and affirmed the judgment. Gastelum then petitioned for review by the California Supreme Court. He reiterated these contentions and additionally argued that a newly enacted statute, Senate Bill No. 136 (Stats. 2019, ch. 590, sec. 1), should have applied to him. The Supreme Court granted review and transferred the matter back to the Court of Appeals court with directions "to vacate [our] decision and reconsider the cause in light of Senate Bill No. 136[.]" After that reconsideration, the appellate court concluded Senate Bill No. 136 applied here because the judgment against Gastelum was not yet final. Because Gastelum's prior prison term was for spousal abuse, not a sexually violent offense, the one-year prior prison term enhancement could no longer be imposed on him. The Court therefore modified the judgment to strike the one-year prior prison term enhancement and affirmed the judgment as modified. Analysis of Gastelum's original contentions remained unchanged: (1) Chiu did not consider the first degree lying-in-wait murder at issue here, and Gastelum provided no persuasive argument why Chiu should have been extended to this type of murder "particularly where, as here, the defendant and perpetrator are equally culpable, having committed all the same actions that gave rise to the lying-in-wait murder;" and (2) Gastelum forfeited any claim of error by failing to object at trial to the allegedly deficient instruction, and, "assuming that competent counsel would have objected, Gastelum has not shown prejudice based on his counsel's failure to do so."

California v. Mora-Duran

Court: California Courts of Appeal

Docket: C085192(Third Appellate District)

Opinion Date: February 21, 2020

Judge: William J. Murray, Jr.

Areas of Law: Constitutional Law, Criminal Law

Defendant Fidel Mora-Duran waived preliminary hearing and pleaded no contest to felony marijuana cultivation. After his plea, but before sentencing, Proposition 64 was passed, which amended Health & Saf. Code section 11358 narrowing the scope of conduct constituting felony marijuana cultivation. Defendant asked the trial court to sentence him and redesignate his conviction as a misdemeanor. The trial court refused, explaining the parties had not agreed to that. The court then rejected the plea agreement and reinstated charges. After the prosecution filed an amended information, defendant pleaded no contest to felony marijuana cultivation under section 11358(d)(3)(C), a new provision enacted as part of Proposition 64 requiring proof of additional elements. Thereafter, defendant was placed on probation for two years on the condition that he serve a period in jail that amounted to time served. On appeal, defendant contended: (1) the trial court abused its discretion in rejecting the plea agreement; (2) his conviction should have been reversed because charges were added to the amended information after a preliminary hearing was waived in violation of Penal Code section 1009; and (3) his sentence violated the prohibition on ex post facto punishment. The Court of Appeal concluded defendant’s second contention had merit: the amendment to the information, though ostensibly filed pursuant to the same statute, constituted a significant variance from the original charges. Defendant's conviction under section 11358(d)(3)(C) was reversed, and the attendant sentence was vacated. The matter was remanded for further proceedings on the other charges.

California v. Superior Court (Quarles)

Court: California Courts of Appeal

Docket: D076494(Fourth Appellate District)

Opinion Date: February 24, 2020

Judge: Richard D. Huffman

Areas of Law: Constitutional Law, Criminal Law

In June 2018, the superior court determined that Alvin Quarles, who had been committed as a sexually violent predator (SVP) since 2014, should have been conditionally released. The State unsuccessfully brought a motion for reconsideration of that order. Seeking a writ of mandate, the State petitioned the Court of Appeal to prohibit Quarles' conditional release. To this end, the State contended: (1) the superior court misinterpreted the law and thus erred in ordering Quarles' conditional release; (2) substantial evidence supported Quarles' continued confinement because he remained dangerous and was likely to reoffend; (3) exclusion of certain polygraph evidence was error; and (4) all proceedings relating to Quarles' petition to be conditionally released should have been open to the public. On the record before it, the Court of Appeal expressed concern over whether the superior court applied the correct legal standard in granting Quarles's petition to be conditionally released. "Because of the significance of conditionally releasing an SVP back into the community (especially one with a criminal history like Quarles's)," the Court granted some of the requested relief and ordered the superior court to hold a new trial to determine whether Quarles should have been conditionally released under the correct legal standard. The Court determined the other issues the State raised in its petition were without merit and denied the requested relief as to those issues accordingly.

In re Amber K.

Court: California Courts of Appeal

Docket: A155515(First Appellate District)

Opinion Date: February 21, 2020

Judge: Miller

Areas of Law: Criminal Law, Juvenile Law

A juvenile court found that Amber had committed felony assault by force likely to produce great bodily harm, adjudged her a ward of the court, and imposed conditions of probation. The conditions included a requirement that she submit her electronic devices to warrantless searches of any medium of communication likely to reveal whether she is complying with the conditions of her probation. The court of appeal held that the condition is appropriate but too broad to withstand scrutiny. It imposes a burden that is not proportionate to the legitimate interest it serves of ensuring that Amber does not have contact with a specific person.

In re Brown

Court: California Courts of Appeal

Docket: E071401(Fourth Appellate District)

Opinion Date: February 25, 2020

Judge: Carol D. Codrington

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

The State appealed a trial court's orders granting respondent Brandon Brown’s (defendant) petition for writ of habeas corpus, vacating his sentence, and resentencing him to 16 years eight months in prison, which was eight years shorter than his original sentence. The trial court granted his writ petition because his strike for carjacking as a juvenile did not qualify as a strike under Welfare and Institutions Code section 707(b) and Penal Code section 667(d)(3). The trial court also concluded that defendant’s trial counsel provided ineffective assistance of counsel (IAC) by not objecting to the strike during sentencing. The State contended on appeal that the trial court erred in granting defendant’s writ petition because: (1) defendant’s juvenile carjacking adjudication qualified as a strike under the 2006 law; (2) the trial court erred in applying California v. Gallardo, 4 Cal.5th 120 (2017), retroactively; (3) the trial court exceeded its jurisdiction by vacating the carjacking strike entered in Los Angeles (case No. VA 076709) and Orange County (case No. 03NF1824) cases; (4) defendant’s trial counsel was not ineffective, because the record of conviction established defendant’s carjacking adjudication qualified as a strike; and (5) defendant’s delay in filing his writ petition prejudiced the People’s ability to oppose it. The Court of Appeal determined the trial court did not err in applying Gallardo retroactively and granting defendant’s writ petition on the ground defendant’s juvenile carjacking adjudication did not qualify as a strike. Therefore, the Court concluded it did not need to address the State's additional IAC challenge. Furthermore, the Court rejected the State’s other objections and affirmed the writ petition order and judgment.

In re McDowell

Court: California Courts of Appeal

Docket: A157020(First Appellate District)

Opinion Date: February 26, 2020

Judge: Burns

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

McDowell and Hutchison planned and executed a burglary and an attempted armed robbery of a drug dealer. Hutchison shot and killed the drug dealer. Although he was not the actual killer, McDowell was sentenced to life imprisonment without the possibility of parole after a jury convicted him of, among other things, first-degree murder (Pen. Code 187(a)) and found true robbery-murder and burglary-murder special circumstances (190.2(a)(17)(A), (G)). After the California Supreme Court’s Banks (2015) and Clark (2016) decision, McDowell sought habeas corpus relief, challenging the special circumstance findings. The court of appeal denied relief, holding that the “major participant” and “reckless indifference to human life” findings are adequately supported. McDowell’s decision to arm himself with a palm knife should be viewed in combination with the particularly risky crime that he planned and led—a home invasion robbery of a methamphetamine dealer. McDowell’s proximity to the crime and opportunity to restrain Hutchison also increased his culpability.

Munoz v. Superior Court of Alameda County

Court: California Courts of Appeal

Docket: A157445(First Appellate District)

Opinion Date: February 26, 2020

Judge: Henry E. Needham, Jr.

Areas of Law: Criminal Law

The Hayward Police Department investigated the East Las Palmas street gang, of which Munoz and Villegas were members. They wiretapped Villegas's phone. While Munoz was in custody, he referred to killing Bagshaw during a phonecall with Villegas. The two texted about the plan and spoke later that day. Munoz indicated where Bagshaw would be (Fog Line) and what he would be wearing, stating, “R.I.P. The police had Bagshaw notified of the threat, went to Fog Line, and stationed themselves in highly visible positions. In a call, Munoz asked Villegas whether he was ready to go. Villegas answered affirmatively. Several texts followed, many concerning the police presence. No shooting occurred. An officer saw a car associated with Villegas drive by. Munoz was charged with conspiracy to commit murder. He argued that the corpus delicti rule prohibited consideration of a defendant’s own statements absent the presentation of independent evidence regarding the elements of the crime. The court of appeal declined to grant relief. The statements at issue were not subject to the rule; the recorded conversations and the statements made during those conversations constituted part of the criminal agreement central to the charge of conspiracy. “If the primary purpose of the corpus delicti rule is to ensure that a crime was actually committed, what better proof could there be of a criminal conspiracy than the words of the alleged conspirators actually constituting the agreement itself?”

People v. Botello

Court: California Courts of Appeal

Docket: F076907(Fifth Appellate District)

Opinion Date: February 26, 2020

Judge: Snauffer

Areas of Law: Criminal Law, Juvenile Law

The Court of Appeal affirmed defendant's conviction for murdering two juveniles and held that the trial court's error in admitting into evidence defendant's rap song video glorifying gang violence was harmless. However, the court vacated defendant's life sentence because it was unable to conclude that the trial court's sentence complied with the Eighth Amendment prohibition against cruel and unusual punishments. The court held that Penal Code section 3051, subdivision (b)(4), does not moot defendant's abuse of discretion claim. The trial court then examined and illuminated the transient immaturity versus irreparable corruption legal standard applicable to juvenile life without parole sentencing. The court concluded that, to faithfully apply this deeply rooted in the Eighth Amendment sentencing standard, a trial court must affirmatively and expressly find the circumstances that justify imposing a life without parole sentence upon a juvenile offender. Accordingly, the court remanded for resentencing.

People v. Lipsett

Court: California Courts of Appeal

Docket: H045282(Sixth Appellate District)

Opinion Date: February 21, 2020

Judge: Nathan D. Mihara

Areas of Law: Criminal Law

Lipsett pled guilty to battery on a non-prisoner by a prisoner and admitted a prior conviction that qualified as a strike. He was sentenced to six years in prison. The court of appeal affirmed, rejecting his argument that the trial court abused its discretion and violated his constitutional rights in refusing to strike the strike, noting that Lipsett has an extensive criminal history involving violence and that this crime was violent. The court also rejected an argument that his case should be remanded for a determination of whether he qualifies for mental health diversion, Penal Code 1001.36. That section was not intended to apply retroactively to cases that have been adjudicated but are not yet final on appeal.

Howard v. Colorado

Court: Colorado Supreme Court

Citation: 2020 CO 15

Opinion Date: February 24, 2020

Judge: Brian D. Boatright

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

Nevik Howard, when sixteen years old, was convicted of first-degree assault (a crime of violence) and first-degree criminal trespass after his case was transferred from juvenile court to district court. During the sentencing hearing, Howard argued that he was subject to a more severe penalty for a crime of violence conviction under the transfer statute than he would be if this were a direct-file case because direct-filed juveniles were exempted “from the mandatory minimum sentencing provisions in [the crime of violence statute],” whereas transferred juveniles were not. To address that equal protection concern, the district court determined that the mandatory minimum sentencing provisions in the crime of violence statute would not apply in this transfer proceeding, just as they would not have applied in a direct-file proceeding. The court further determined, however, that this ruling did not make Howard eligible for probation. Instead, the court concluded that the statutory scheme only allowed either: (1) a youth offender services (“YOS”) sentence with a suspended Department of Corrections (“DOC”) sentence; or (2) a DOC sentence. The court ultimately sentenced Howard to six years in YOS with a suspended fifteen-year DOC sentence. Howard, appealed, arguing the district court erred in its reasoning. The court of appeals affirmed. The Colorado Supreme Court granted review, affirming the court of appeals, but on different grounds. The Supreme Court held that under the facts of this case, there was no equal protection violation because neither direct-filed juveniles nor transferred juveniles convicted of crimes of violence were eligible for probation, and the district court did not apply the mandatory minimum sentencing provisions in the crime of violence statute. Hence, Howard was treated the same as a direct-filed juvenile would have been with regard to probation and the applicable sentencing range.

State v. White

Court: Connecticut Supreme Court

Docket: SC20168

Opinion Date: March 3, 2020

Judge: Richard A. Robinson

Areas of Law: Criminal Law

The Supreme Court affirmed the judgment of the superior court convicting Defendant of assault in the first degree, holding that the trial court did not err in denying Defendant's motions seeking public funds to pay for a DNA expert to assist in his defense and to exclude certain evidence. On appeal, Defendant argued that the trial court (1) abused its discretion and violated his federal and state constitutional rights when it denied his motion for funds for a DNA expert to assist in his defense, and (2) abused its discretion when it denied his motion in limine seeking to preclude certain evidence of the victim's confidence in her identification of Defendant when presented with a photographic array by the police. The Supreme Court affirmed, holding that the trial court (1) properly denied Defendant's motion for costs to pay for expenses associated with procuring the DNA expert; and (2) did not abuse it discretion in denying Defendant's motion in limine seeking to preclude evidence of the victim's post identification confidence in her identification of Defendant as her attacker.

Calm v. Delaware

Court: Delaware Supreme Court

Docket: 577, 2018

Opinion Date: February 26, 2020

Judge: Traynor

Areas of Law: Constitutional Law, Criminal Law

Anthony Calm was convicted for several weapons charges and resisting arrest. His sole argument on appeal was that the Superior Court erred in denying his motion to suppress a firearm and ammunition that the arresting officer found on Calm during a stop of a motor vehicle in which Calm was the passenger. Pat-down searches must be justified by a “reasonable articulable suspicion that the detainee is armed and presently dangerous.” The Delaware Supreme Court determined the Superior Court did not apply this standard, instead concluding that the mere removal of Calm from the vehicle for the purpose of conducting a consent search of the vehicle justified the pat-down of his person. Furthermore, the Supreme Court found the trial court’s other findings indicated that, had it applied the correct standard, the court would have found the State’s proof lacking and granted the motion to suppress. The Supreme Court therefore reversed Calm’s convictions for possession of a firearm by a person prohibited, possession of ammunition by a person prohibited, and carrying a concealed deadly weapon. Because the evidence seized from Calm was not relevant to the resisting-arrest charge, the Supreme Court affirmed that conviction.

Sweet v. State

Court: Florida Supreme Court

Docket: SC19-195

Opinion Date: February 27, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the judgment of the post conviction court summarily denying Defendant's eighth successive motion to vacate his judgment of conviction and sentence, holding that all of Defendant's postconviction claims were legally insufficient or based on allegations that were conclusively refuted by the record. Defendant was convicted of first-degree murder and sentenced to death. The Supreme Court affirmed. This case concerned Defendant's eighth successive motion to vacate the judgment of conviction and sentence. Along with his eighth successive motion Defendant filed a motion to compel discovery documents from the Office of the State Attorney. The postconviction court summarily denied Defendant's eighth successive postconviction motion and denied his motion to compel. The Supreme Court affirmed, holding (1) Defendant was not entitled to an evidentiary hearing on a newly discovered evidence claim alleging spoliation of evidence and a Brady violation; (2) Defendant was not entitled to an evidentiary hearing on his ineffective assistance of counsel claims; (3) the trial court did not err in summarily denying a standalone actual innocence claim; and (4) because Defendant failed to demonstrate his entitlement to the requested records the postconviction court correctly denied his motion to compel.

Idaho v. Christensen

Court: Idaho Supreme Court - Criminal

Docket: 46371

Opinion Date: February 24, 2020

Judge: Bevan

Areas of Law: Constitutional Law, Criminal Law

Dave Christensen was indicted by a grand jury on five counts of lewd conduct with two minors under sixteen. The State notified Christensen of its intent to introduce interviews of the two alleged victims at trial under Idaho Rules of Evidence (“I.R.E.”) 803(4) and 803(24). At a pretrial hearing, the district court ruled the interviews were admissible because the victims’ statements were made for purposes of medical diagnosis or treatment. The interviews were admitted at trial by stipulation. A jury found Christensen guilty on four of the five counts. Christensen appealed the district court’s admission of the interviews. Finding no reversible error, the Idaho Supreme Court affirmed.

People v. Gayden

Court: Supreme Court of Illinois

Citation: 2020 IL 123505

Opinion Date: February 21, 2020

Judge: Robert R. Thomas

Areas of Law: Civil Procedure, Civil Rights, Criminal Law

Gayden was convicted of unlawful use or possession of a weapon for possessing a shotgun “having one or more barrels less than 18 inches in length” and was sentenced to two years in prison and one year of mandatory supervised release (MSR). Gayden argued that his attorney was ineffective for failing to move to suppress the evidence. The appellate court declined to decide that claim, finding the record insufficient to determine the issue. The court noted that Gayden could pursue collateral relief under the Post-Conviction Hearing Act. Gayden sought rehearing, informing the court that he lacked standing to seek postconviction relief because he had completed his MSR while his appeal was pending and arguing that the court erred in finding the record insufficient to consider his ineffective assistance claim. Upon denial of rehearing, the appellate court held that, because Gayden had not informed the court that he had been released from custody when he filed his appeal, the court would not consider this new argument upon rehearing and that an argument concerning his ineffective assistance claim was impermissible reargument. The Illinois Supreme Court affirmed. The appellate court properly concluded that the record was insufficient to decide the ineffective assistance claim on direct appeal. The court rejected Gaydens’s request to allow him to file a petition for postconviction relief or to order the appellate court to retain jurisdiction and remand the case for an evidentiary hearing in the trial court.

Brace v. Commonwealth

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12841

Opinion Date: February 24, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the judgment of a single justice of the court denying Petitioner's petition pursuant to Mass. Gen. Laws ch. 211, 3, holding that Petitioner's claim could adequately be resolved by the appeals court. Petitioner pleaded guilty to an indictment alleging sex offenses. Petitioner's probation was later revoked, and the Commonwealth filed a petition to commit Petitioner as a sexually dangerous person (SDP). Petitioner moved to dismiss the SDP petition on the ground that, at the time it was filed, he was not a "prisoner" as defined by Mass. Gen. Laws ch. 123A, 12(b) because the release date had been revised. The motion was denied. Petitioner then filed this petition under Mass. Gen. Laws ch. 211, 3, alleging that the Commonwealth cannot demonstrate that he was a prisoner at the time his discharge petition was filed. A single justice denied relief. The Supreme Judicial Court affirmed, holding that the single justice correctly concluded that the ordinary appellate process provided an adequate remedy.

Commonwealth v. Mansur

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12745

Opinion Date: February 21, 2020

Judge: Kafker

Areas of Law: Criminal Law, Government & Administrative Law

The Supreme Judicial Court held that possession of an open container of alcohol in a motor vehicle is a civil motor vehicle infraction rather than a criminal offense, thus overruling Commonwealth v. Giannino, 371 Mass. 700 (1977), in which the Court held that automobile law violations must encompass the "operation or control" of a motor vehicle. Defendant was charged with possessing open container of alcohol in a motor vehicle in violation of Mass. Gen. Laws ch. 90, 20, and other offenses. Defendant argued that the open container charged constituted a civil infraction, rather than a criminal offense. The trial court disagreed, concluding that it was a criminal offense. A jury found Defendant guilty. At issue was whether an open container violation fits within the definition of a "civil motor vehicle infraction," which is defined as an automobile law violation for which the maximum penalty does not provide for imprisonment. The Supreme Court affirmed after analyzing the legislative history and plain language of the open container statute, holding that a violation of Mass. Gen. Laws ch. 90, 24I is an automobile law violation and thus a civil motor vehicle infraction.

Kyricopoulos v. Commonwealth

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12824

Opinion Date: February 21, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the judgment of the county court denying Petitioner's petition for relief under Mass. Gen. Laws ch. 211, 3, holding that the single justice neither erred nor abused his discretion in denying relief. Petitioner was convicted of multiple counts of larceny over $250. Petitioner's appeal was ultimately dismissed for lack of prosecution. Petitioner later filed his Mass. Gen. Laws ch. 211, 3 petition seeking an order dismissing the underlying criminal charges on the grounds that his appeal was deliberately blocked by the appeals court and others. A single justice denied relief. The Supreme Judicial Court affirmed, holding that Petitioner was not entitled to review pursuant to Mass. Gen. Laws ch. 211, 3.

Murphy v. Superior Court

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12820

Opinion Date: February 21, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the judgment of the single justice of the court denying Plaintiff's requests for declaratory relief pursuant to Mass. Gen. Laws ch. 231A, 1, holding that the single justice properly denied relief. In his petition for declaratory relief Plaintiff requested to have the judge removed from his criminal matter and sought a general declaration that the judge should not sit on any criminal matters in Bristol County. The single justice denied relief. The Supreme Judicial Court affirmed, holding (1) because Plaintiff pleaded guilty, disposing of the criminal charge, Plaintiff's request to have the judge removed from his criminal matter was moot; and (2) Plaintiff had no right as a matter of law to seek an order compelling a judge's recusal from any case other than his own.

Pinney v. Commonwealth

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12774

Opinion Date: February 21, 2020

Judge: Per Curiam

Areas of Law: Criminal Law

The Supreme Judicial Court affirmed the judgment of a single justice denying Defendant's Mass. Gen. Laws ch. 211, 3 petition for bail review, holding that because the bail determinations were properly made and no violation of Defendant's rights occurred, the single justice did not err or abuse her discretion in denying Defendant's petition seeking review of the bail determination. Defendant's first trial for murder in the first degree and ended in a mistrial. Defendant subsequently filed a motion to dismiss the indictment on double jeopardy grounds, but the motion was denied. A single justice denied Defendant's Mass. Gen. Laws ch. 211, 3 petition seeking review of that ruling, and the Supreme Judicial Court affirmed. While Defendant's appeal was pending, bail was set in the cash amount of $250,000. After Defendant unsuccessfully filed a motion for bail review he filed a petition pursuant to Mass. Gen. Laws ch. 211, 3 for bail review. A single justice denied the petition. The Supreme Judicial Court affirmed, holding that the single justice did not err or abuse her discretion in denying the petition.

Eubanks v. Mississippi

Court: Supreme Court of Mississippi

Citation: 2018-KA-00282-SCT

Opinion Date: February 27, 2020

Judge: Griffis

Areas of Law: Constitutional Law, Criminal Law

Ashley Brown and Jessica Baugh were roommates at the Bay Meadows Apartments in Ridgeland, Mississippi. They worked together at a local bar. One night after work, Brown and Baugh met up with friends, including Stephanie Mejia, another co-worker. Mejia arranged to spend the night at Brown’s and Baugh’s apartment. Because Mejia did not have a key to the apartment, Baugh told her that she would leave the door unlocked. Mejia then left Baugh to meet up with her friends. During the night, Jones woke up Baugh and advised that someone had come into the apartment. Baugh was not concerned because she assumed it was Mejia. Later that morning, Brown woke up Baugh and advised that her car was gone. Brown’s keys, along with her debit and credit cards, were also gone. Baugh began to look around the apartment and noticed that her iPad and Michael Kors bag were missing. The tips that Baugh had received from work were in the bag. Brown and Baugh called the police. The Ridgeland Police Department learned that Amonteel Pates had used Brown’s credit card to purchase a pair of shoes. Pates was later arrested. When questioned about the incident at Brown’s and Baugh’s apartment, Pates acknowledged his involvement and culpability and provided the names of the other suspects: Rahim Williams, Michael Tillman, Fabiyonne Peel, and defendant Jontavian Eubanks. According to Pates, Mejia instigated taking Baugh's tips; Pates was aware that Mejia had arranged to spend the night at Baugh’s and Brown’s apartment and that Baugh would leave the door unlocked. Eubanks, Pates, Peel, Williams, and Tillman were indicted on burglary of a dwelling, conspiracy to commit burglary of a dwelling, motor-vehicle theft, and conspiracy to commit motor-vehicle theft. Pates pleaded guilty and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years to serve. As part of his plea agreement, Pates testified against Eubanks at trial. Eubanks was convicted of burglary of a dwelling, and conspiracy to commit burglary of a dwelling, and was sentenced to serve twenty-five years in the custody of the MDOC on Count I and five years on Count II, with the sentences to run concurrently to each other, but consecutively to any and all other sentences. He was further ordered to pay $698.50 in court costs, fees, and assessments. Eubanks appealed, arguing the trial court erred by: (1) denying his motion for funds to retain an expert for trial; (2) denying his motion for funds to retain an expert for a Daubert hearing; (3) overruling his Batson challenge; and (4) permitting hearsay testimony to establish essential elements of the charged offenses. Finding no reversible error, the Mississippi Supreme Court affirmed Eubanks' conviction.

State v. Krannawitter

Court: Nebraska Supreme Court

Citation: 305 Neb. 66

Opinion Date: February 21, 2020

Judge: Michael G. Heavican

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed Defendant's conviction for third-offense driving under the influence, holding that the district court did not err in denying Defendant's motion to suppress or in denying Defendant's motion for a new trial. After a law enforcement officer stopped Defendant a breath test showed that Defendant had an elevated blood alcohol level. On appeal, Defendant challenged, among other things, the denial of her motion to suppress the evidence. The Supreme Court affirmed, holding (1) under the totality of the circumstances, the officer's seizure of Defendant was supported by a particularized and objective basis for suspecting the particular person stopped of criminal activity; and (2) the district court did not abuse its discretion in denying Defendant's motion for a new trial based on newly discovered evidence.

State v. Valentino

Court: Nebraska Supreme Court

Citation: 305 Neb. 96

Opinion Date: February 21, 2020

Judge: Lindsey Miller-Lerman

Areas of Law: Criminal Law

The Supreme Court affirmed the decision of the district court affirming the judgment of the county court convicting Defendant of solicitation of prostitution, holding that there was no merit to Defendant's claim that he was selectively prosecuted for solicitation based on gender. Defendant filed a motion to suppress evidence and statements and served subpoenas duces tecum claiming that he had been selected prosecuted based on his gender. The county court quashed the subpoenas and denied Defendant's motions to suppress and to dismiss. The court then convicted Defendant of the offense. The district court affirmed. The Supreme Court affirmed, holding that neither the county court nor the district court erred when it found that Defendant had not been selectively prosecuted based upon his gender.

North Dakota v. Marcum

Court: North Dakota Supreme Court

Citation: 2020 ND 50

Opinion Date: February 27, 2020

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Henry Marcum appealed following a bench trial found him guilty of a lesser included offense of possession of a controlled substance and possession of drug paraphernalia. On appeal, Marcum argued the district court erred when it denied his motion to suppress evidence from what he argued was an unconstitutional arrest, and the evidence was insufficient to convict him. Marcum requested that the verdict be reversed or that the North Dakota Supreme Court vacate the verdict and reverse the district court order denying his motion to suppress. The Supreme Court affirmed denial of the motion to suppress because law enforcement acted in good faith on the arrest warrant and representations about its validity. Furthermore, the Court affirmed the criminal judgment because sufficient evidence supported finding Marcum had a prior conviction for an equivalent offense, and the residue in the pipe found supported the conviction for possession of methamphetamine.

North Dakota v. McAllister

Court: North Dakota Supreme Court

Citation: 2020 ND 48

Opinion Date: February 27, 2020

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Kelvin McAllister was convicted by jury of assault. On appeal to the North Dakota Supreme Court, McAllister claimed his right to an impartial jury was violated. He argued the district court erred when it denied various challenges for cause he made because jurors either knew the prosecuting attorney or had been the prosecuting attorney’s clients. He also claimed that due to the aggregate effect of the jurors’ familiarity with the prosecutor the court should have granted his motion for a mistrial. McAllister also claimed multiple errors with respect to the trial court’s admission of certain evidence, and in instructing the jury. The Supreme Court determined there was no evidence in the record that any of the jurors were clients of the prosecuting attorney at the time of trial. The jurors who stated they knew the prosecuting attorney or were familiar with him all affirmed they would be impartial. Furthermore, the Court determined McAllister did not show a material departure from “the forms prescribed by law in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn.” The Supreme Court concluded the district court did not abuse its discretion when it denied McAllister’s challenges for cause, for denying a mistrial, admitting evidence relating to restitution, or in instructing the jury.

North Dakota v. Mohammed

Court: North Dakota Supreme Court

Citation: 2020 ND 52

Opinion Date: February 27, 2020

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

The State alleged Ibrahim Ahmed Mohammed knocked on E.W.’s apartment door, and when she opened it, forced himself inside. He appealed after a bench trial found him guilty of gross sexual imposition, arguing the district court abused its discretion when it denied his motion for acquittal because the “force” element of the crime was not proven beyond a reasonable doubt, and the district court improperly reduced the standard for “force” based on the view that E.W. was a vulnerable adult. After review, the North Dakota Supreme Court found no reversible error and affirmed.

North Dakota v. Ovind

Court: North Dakota Supreme Court

Citation: 2020 ND 51

Opinion Date: February 27, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Blain Ovind appealed after a jury found him guilty of two counts of construction fraud, two counts of acting as a contractor without a license, and one count of disobedience of a judicial order. On appeal, Ovind argued the district court erred by denying his requests for court-appointed counsel, and his convictions should have been reversed because of prosecutorial misconduct. Finding no reversible error, the North Dakota Supreme Court affirmed.

State v. Bates

Court: Supreme Court of Ohio

Citation: 2020-Ohio-634

Opinion Date: February 27, 2020

Judge: Donnelly

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court reversed Defendant's convictions for aggravated murder and other felonies and the death sentence imposed by the county court of common pleas, holding that Defendant was deprived of his constitutional right to the effective assistance of counsel when defense counsel, during voir dire, failed to question or strike a racially biased juror. On appeal, Defendant presented seventeen propositions of law. In his seventeenth proposition of law, Defendant argued that his trial counsel provided ineffective assistance by failing to question and strike a juror who made racially biased statements on her juror questionnaire and that counsel's deficient performance denied him a fair and impartial jury. The Supreme Court found this issue dispositive and reversed Defendant's convictions and sentence, holding that defense counsel's performance during voir dire was objectively unreasonable and that counsel's deficient performance prejudiced Defendant in violation of his constitutional right to effective assistance of counsel. The Court remanded the case to the trial court for a new trial.

State v. Ramirez

Court: Supreme Court of Ohio

Citation: 2020-Ohio-602

Opinion Date: February 25, 2020

Judge: DeWine

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the court of appeals dismissing the State's appeal from the order of the trial court granting Defendant's motion for a new trial based on insufficient evidence, holding that the court of appeals was not correct in dismissing the State's appeal. The court of appeals premised its dismissal of the State's appeal on principles of double jeopardy and on its application of Ohio Rev. Code 2945.67. The Supreme Court reversed, holding (1) the double jeopardy protection does not prevent the State from appealing the trial court's order granting the motion for a new trial but, rather, only prevents the State from retrying the defendant in the event the State is unsuccessful on appeal; and (2) section 2945.67, which delineates when the State may appeal in a criminal case, does not require dismissal of the State's appeal.

Martinez v. Cain

Court: Oregon Supreme Court

Docket: S066253

Opinion Date: February 21, 2020

Judge: Nelson

Areas of Law: Constitutional Law, Criminal Law

Petitioner Pedro Martinez was 'playing with’ a gun, and asked the victim for his wallet. The victim refused. Petitioner then asked the victim to get out of his car, and the victim refused that request, too, saying "you ain’t getting my wallet and you ain’t getting my car." Petitioner said, "Well, then I’m going to have to shoot you." As the victim tried to drive away, petitioner did just that: shooting the victim once in the arm. The victim testified that his car already was moving when petitioner fired; the victim believed it was possible that the car bumped petitioner’s hand, causing him to lose some control of the gun when he pulled the trigger. The victim drove the short distance to his home and called 9-1-1. He was transported to a hospital. A doctor who treated the victim testified that the bullet broke the victim’s arm and fragments traveled to his chest, coming within inches of multiple blood vessels. Petitioner was indicted on several counts, though the only counts relevant here charged petitioner with first-degree robbery and attempted aggravated felony murder. He sought post-conviction relief, contending that his counsel had been constitutionally inadequate by failing to argue that those crimes should be merged. The post-conviction court granted summary judgment against petitioner, concluding that he had not been prejudiced by his counsel’s failure to object, because as a matter of law the sentences would not merge. A majority of the Court of Appeals panel affirmed, On review, the presented to the Oregon Supreme Court was whether petitioner’s convictions should have been merged under ORS 161.067(1). The Court concluded they should have, reversed the trial and appellate courts, and remanded for further proceedings.

Oregon v. Iseli

Court: Oregon Supreme Court

Docket: S066142

Opinion Date: February 21, 2020

Judge: Garrett

Areas of Law: Constitutional Law, Criminal Law

This interlocutory appeal involves the “unavailability as a witness” requirement under Oregon Evidence Code (OEC) 804(1), for purposes of applying an exception to the hearsay rule in a criminal case. The State served a subpoena on a key witness to testify against defendant Chad Iseli and made other efforts to ensure her attendance at trial, but she did not attend. The State therefore moved to introduce her earlier out-of- court statements under the “forfeiture-by-wrongdoing” exception to the hearsay rule, OEC 804(3)(g). The trial court found that the State had made substantial efforts to secure the witness’s attendance and that she had expressed safety concerns about testifying. It also found, in relation to the forfeiture-by-wrongdoing exception, that defendant had engaged in intentional, wrongful conduct that had caused her absence. The court further determined, however, that the State had not established that the witness was unavailable because it had not sought a material witness warrant or a remedial contempt order. The court therefore denied the state’s motion to admit her earlier statements. The State appealed that ruling, and the Court of Appeals reversed, reasoning that, particularly in light of defendant’s intentional, wrongful conduct, the State had satisfied the “process or other reasonable means” requirement of OEC 804(1)(e), thereby establishing that the witness was unavailable. The Oregon Supreme Court reversed, finding that while the trial court was incorrect to view certain facts as categorically irrelevant to the “unavailability as a witness” determination under OEC 804(1)(e). "Ultimately, though, when we add those facts to the calculus, we again conclude that the trial court’s ultimate ruling - that the state did not satisfy the “other reasonable means” component and, therefore, did not establish that the victim was unavailable - was correct.

State v. Vance

Court: Tennessee Supreme Court

Docket: M2017-01037-SC-R11-CD

Opinion Date: February 25, 2020

Judge: Bivins

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the court of criminal appeals' judgment affirming Defendant's conviction for one count of second degree murder, an alternative count of first degree felony murder, especially aggravated robbery, and three counts of aggravated assault, holding that, while the trial court erred in admitting certain testimony, substantial justice did not require that plain error relief be granted. At issue was whether the trial court committed reversible error in allowing the State to elicit testimony about a statement made by a non-testifying codefendant whose trial was severed and whose statements were the subject of a motion in limine granted by the trial court. After he was convicted, Defendant filed a motion for new trial, arguing that the trial court erred in concluding that the doctrine of curative admissibility permitted the testimony and, for the first time, raising a contention that the testimony violated his constitutional right of confrontation. The court of criminal appeals affirmed. The Supreme Court affirmed, holding (1) the testimony should not have been allowed, but Defendant was not entitled to plain error relief on his claim that the trial court violated his constitutional rights of confrontation by permitting the testimony; and (2) Defendant was not entitled to relief on the claims he preserved for plenary review.

Walker v. Texas

Court: Texas Court of Criminal Appeals

Docket: PD-0399-17

Opinion Date: February 26, 2020

Judge: Newell

Areas of Law: Constitutional Law, Criminal Law

Appellant Kenyetta Walker lived in a house that police identified as a “a major distribution point” for drugs along with her two daughters and a man who went by the nickname “Pill.” One night, three intruders broke into the house through the front door. A gunfight ensued. One of the intruders escaped the home unscathed. Another limped away. The final intruder crawled out of the house to die on the lawn. Police were called out to the scene. Surveillance cameras around the house showed that after the shootout, but before the police arrived, Appellant made several trips outside. First, she carried a bag of more than 400 grams of dihydrocodeinone pills to an Infiniti parked outside. She gave a pistol to “Pill” who left the scene, but not before he hit the dead man on the lawn. Police arrived to find the dead body lying on the ground outside of the house and occasional guest, Brian Grant (who had also been shot), sitting near the porch. A subsequent search of the house uncovered a large amount of controlled substances and drug paraphernalia. Police also recovered digital scales, re-sealable plastic bags, a drawer full of small denomination bills, and the pills from the bag Appellant had placed in the parked Infiniti. The State charged Appellant with engaging in organized criminal activity by commission of the predicate offense of possession of a controlled substance. The indictment was later amended to include the allegation that Appellant had possessed the controlled substance “with intent to deliver.” Appellant did not object to the indictment or otherwise argue to the trial court that the indictment was substantively defective for alleging a non-existent offense. The issue Appellant's appeal raised for the Texas Court of Criminal Appeals' review was whether a jury convicts a defendant on a "non-existent" greater offense, could a court of appeals reform the judgment to reflect conviction for an existent "lesser-included" offense? The Court answered yes, if the reformed offense was authorized, as it was in this matter, by the indictment. Appellant's case was remanded for a determination of whether the jury necessarily found each element of the offense of possession with intent to deliver beyond a reasonable doubt, and whether the evidence was legally sufficient to support the conviction for that offense.

State v. Grunwald

Court: Utah Supreme Court

Citation: 2020 UT 9

Opinion Date: February 21, 2020

Judge: Matthew B. Durrant

Areas of Law: Criminal Law

The Supreme Court reversed Defendant's conviction as an accomplice to the crime of aggravated murder, holding that it was reasonably probable that the jury would not have convicted Defendant absent three jury instruction errors. The jury instruction discussing the elements for accomplice liability on aggravated murder contained three errors. The court of appeals affirmed the conviction, holding that, in the absence of these errors, there was not a reasonable probability that the jury would have reached a different result. The Supreme Court reversed, holding that there was a reasonable probability that the jury would not have convicted Defendant in the absence of the three errors in the jury instruction that provided the basis for Defendant's conviction.

Phongmanivan v. Haynes

Court: Washington Supreme Court

Docket: 96980-9

Opinion Date: February 27, 2020

Judge: Susan Owens

Areas of Law: Constitutional Law, Criminal Law

The Ninth Circuit Court of Appeals certified a question of law to the Washington Supreme Court. In 2011, Phonsavanh Phongmanivan was convicted of two counts of first degree assault with two firearm enhancements, and he was sentenced to 306 months' imprisonment. Phongmanivan appealed, and the Washington Court of Appeals affirmed his conviction and denied his motion for reconsideration. Phongmanivan's judgment and sentence becamse final on March 11, 2014 when his window to file a petition for certiorari review by the Washington Supreme Court expired. This marked the beginning of Phongmanivan’s one-year statute of limitations to file a federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). On February 4, 2015, 329 days later, Phongmanivan filed a PRP with the Washington Court of Appeals, thereby tolling AEDPA's statute of limitations for the pendency of that proceeding. The acting chief judge dismissed Phongmanivan s PRP as frivolous; the Washington Supreme Court’s commissioner denied further review. Phongmanivan then filed a timely motion to modify the commissioner's decision, which the Supreme Court denied on February 10, 2016. On April 1, 2016, the clerk of the Court of Appeals issued Phongmanivan's certificate of finality. Acting pro se, Phongmanivan filed his federal habeas petition 8 days later. However, following the federal magistrate's recommendation, the federal district court denied Phongmanivan’s petition as untimely, holding AEDPA's one-year tolling period had ceased on February 10, 2016, when the Supreme Court denied his motion to modify. By such reasoning, 388 total untolled days had elapsed prior to Phongmanivan's filing, rendering his habeas petition untimely by 23 days. Having reviewed the certified question from the Ninth Circuit relating to the denial of the PRP and the appellate court’s clerk’s certification of finality. Adopting Phongmanivan's suggested reformulation, the Washington Supreme Court determined Phongmanivan's PRP proceeding did not become final until the date his certificate of finality was issued on April 1, 2016.

Washington v. Hugdahl

Court: Washington Supreme Court

Docket: 97148-0

Opinion Date: February 27, 2020

Judge: Johnson

Areas of Law: Constitutional Law, Criminal Law

In January 2017, petitioner Jamie Hugdahl was the target of two controlled drug buys executed by a confidential informant in the vicinity of a Safeway parking lot in Ellensburg, Washington. Hugdahl was subsequently charged by an information in 2017, which was amended twice. All three versions of the information alleged four counts of delivery of a controlled substance in violation of RCW 69.50.401(1). Count I was based on the first delivery of heroin. Counts II, III, and IV arose out of the second delivery involving methamphetamine, alprazolam, and ecstasy. The issue this case presented for the Washington Supreme Court’s review concerned the adequacy of the charging document in alleging statutory sentence enhancements for delivering controlled substances within a protected zone under RCW 69.50.435(l)(c). The statutory sentence enhancement applied where a delivery of a controlled substance occurred within 1,000 feet of a school bus route stop. Hugdahl's information alleged that she delivered controlled substances "within one thousand feet of a school bus route.'" Hugdahl first challenged the adequacy of the information on appeal, and a divided Court of Appeals affirmed finding that the information provided constitutionally adequate notice of the enhancement. The Supreme Court, however, reversed, finding that the charging document omitted the facts necessary to charge the statutory enhancement. The sentencing enhancement was vacated and the matter remanded for resentencing.

Washington v. Karpov

Court: Washington Supreme Court

Docket: 95080-6

Opinion Date: February 27, 2020

Judge: Charles Wiggins

Areas of Law: Constitutional Law, Criminal Law

The district court dismissed the criminal case against Mikhail Karpov on the ground that the State had failed to prove jurisdiction. Karpov was tried in the district court of Spokane County, Washington for five counts of indecent exposure. After the State rested, Karpov moved to dismiss the case on the ground that the State had provided insufficient evidence of jurisdiction. The court granted the motion because no witness had expressly stated that the alleged crimes took place in Spokane County, to which the district court's jurisdiction was statutorily limited. The question this case presented for the Washington Supreme Court’s review was whether the State could appeal that dismissal and retry Karpov upon reversal. Karpov argued that jurisdiction was an essential element of every crime and thus that the dismissal for the State's failure to prove jurisdiction resulted in an acquittal, meaning double jeopardy barred the State's initial appeal and prohibited retrial. The State countered that jurisdiction was not an essential element of every crime and thus that double jeopardy did not apply here. The Supreme Court held that jurisdiction was not an essential element of every crime but, rather, was the power of the court to hear and determine a case. However, the Court reversed the superior court and remanded for the reinstatement of the trial court's dismissal with prejudice. “When the trial court substantively treated jurisdiction as an essential element of the crime, the dismissal for failure to prove jurisdiction was no different than if jurisdiction were actually an essential element. The trial court therefore judicially acquitted Karpov when it dismissed the case against him, and double jeopardy barred the State's appeal from the district court and prohibits retrial of Karpov on these charges.”

State v. Howells

Court: Supreme Court of Appeals of West Virginia

Docket: 18-0963

Opinion Date: February 25, 2020

Judge: Hutchison

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed the order of the circuit court sentencing Petitioner to two terms of one to five years of imprisonment in connection with his conviction of two counts of delivery of a controlled substance, holding that the circuit court did not err in not suppressing evidence of an audio/video recording of one of the two drug transactions. On appeal, Petitioner argued that the circuit court erred in refusing to suppress evidence related to one of the drug transactions on the grounds that the evidence was obtained as a result of a recorded transaction within his home without an electronic intercept order issued prior to the transaction. Petitioner argued that this conduct violated State v. Mullens, 650 S.E.2d 169 (W. Va. 2007), and was not in compliance with the Electronic Interception of Conduct or Oral Communications in the Home Act. The Supreme Court affirmed, holding that exigent circumstances prevented law enforcement officers from obtaining an order authorizing the use of an audio/video recorder in Petitioner's home.

State v. Patrick C.

Court: Supreme Court of Appeals of West Virginia

Docket: 18-0945

Opinion Date: February 25, 2020

Judge: Hutchison

Areas of Law: Constitutional Law, Criminal Law

The Supreme Court affirmed the order of the circuit court resentencing Petitioner to not less than ten nor more than twenty-five years in prison, holding that the sentence did not shock the conscience and was not disproportionate to the crime. For appeal purposes, Petitioner was resentenced subsequent to his guilty plea to a charge of failure to provide sex offender registration change of information. In this appeal, Petitioner argued that his sentence shocked the conscience and was disproportionate to the offense. The Supreme Court affirmed, holding (1) Petitioner's sentence does not shock the conscience; and (2) Petitioner failed to establish that his sentence is disproportionate.

State v. Brantner

Court: Wisconsin Supreme Court

Docket: 2018AP000053-CR

Opinion Date: February 25, 2020

Judge: Kelly

Areas of Law: Criminal Law

In this criminal case, the Supreme Court affirmed in part and reversed in part the decision of the court of appeals, holding that venue in Fond du Lac County was proper but that two of the charges on which the jury convicted Defendant were multiplicitous. Defendant was transported to the Fond du Lac County jail to face criminal charges unrelated to this case. During the booking process, a cache of narcotics and prescription medications was discovered in Defendant's boot. This case was then brought in the Fond du Lac County circuit court. A jury found Defendant guilty of multiple drug-related charges. Defendant filed a postconviction motion claiming that venue was improper in Fond du Lac County because he did not possess the drugs when the deputy discovered them where his arrest in Kenosha County terminated his ability to possess contraband on his person. Defendant also argued that two charges for possessing oxycodone were multiplicitous. The postconviction court denied the motion. The court of appeals affirmed. The Supreme Court held (1) Defendant did not lose possession of the drugs in his boot upon his arrest, and because he still possessed the drugs in Fond du Lac County, venue there was proper; and (2) the two charges at issue were multiplicitous.