| Shinn v. Kayer |
| Court: US Supreme Court Docket: 19-1302 Opinion Date: December 14, 2020 Judge: Per Curiam Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Kayer murdered Haas in 1994. Kayer was convicted of premeditated first-degree murder, refused to fully cooperate with a mitigation specialist, and refused to agree to a continuance. The court ruled him competent to make that choice. At sentencing, Kayer again refused an offer of more time and stated he would not cooperate. Arizona law authorized a death sentence only if a judge found at least one aggravating circumstance and found no mitigating circumstance sufficient to call for leniency. The judge found two aggravating factors beyond a reasonable doubt: Kayer's 1981 conviction for first-degree burglary and that Kayer murdered Haas for “pecuniary gain.” The court found one nonstatutory mitigator: his importance in his son’s life. Judge Kiger sentenced Kayer to death; the Arizona Supreme Court affirmed. Kayer sought postconviction relief, arguing ineffective assistance of counsel because his attorneys failed to investigate mitigating circumstances at the outset of their representation. The judge considered evidence of Kayer’s addictions to alcohol and gambling; his heart attack weeks before the murder; mental illness, including a diagnosis of bipolar disorder; and of his childhood difficulties. The court found that trial counsel’s performance was not deficient because Kayer had refused to cooperate and, alternatively, that there was no prejudice because it had considered the assertions of mental illness, physical illness, jail conditions, childhood development, and addictions. The Arizona Supreme Court denied review. Kayer filed an unsuccessful federal habeas petition, 28 U.S.C. 2254. The Ninth Circuit reversed. The Supreme Court vacated. A state prisoner may not obtain federal habeas relief with respect to an ineffective assistance claim that was adjudicated on the merits in state court unless the decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court. The Arizona decision is not so obviously wrong that its error lies “beyond any possibility for fair-minded disagreement.” The Ninth Circuit “essentially evaluated the merits de novo, only tacking on a perfunctory statement" that the state court’s decision was unreasonable and that “there is a reasonable probability Kayer’s sentence would have been less than death.” The most probable reason for Judge Kiger’s determination is that the new mitigation evidence offered in the post-conviction proceeding did not create a substantial likelihood of a different sentence. A fair-minded jurist could see Kayer’s past conviction as having substantial weight. Fair-minded jurists also could take a different view of Kayer’s mitigating evidence. |
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| Project Veritas Action Fund v. Rollins, Martin v. Rollins |
| Court: US Court of Appeals for the First Circuit Dockets: 19-1586, 19-1640, 19-1629 Opinion Date: December 15, 2020 Judge: David J. Barron Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| In these consolidated appeals concerning the "categorical and sweeping nature" of Mass. Gen. Laws ch. 272, 99, the First Circuit affirmed the district court's ruling that Section 99 violates the First Amendment in criminalizing the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces, holding that the district court properly accounted for the values of both privacy and accountability within our constitutional system. Section 99 makes it a crime to record another person's words secretly and without consent, but Massachusetts does not recognize any exceptions based on whether that person has an expectation of privacy in what is recorded. In 2016, two sets of plaintiffs - the Martin Plaintiffs and Project Veritas Action Fund - filed suit alleging that Section 99 violates the First Amendment. The First Circuit (1) affirmed the district court's grant of summary judgment to the Martin Plaintiffs; and (2) affirmed the district court's order dismissing Project Veritas's First Amendment overbreadth challenge for failing to state a claim but vacated on ripeness grounds the dismissal with prejudice of Project Veritas's remaining First Amendment challenges to the statute and remanded with instructions to dismiss the claims without prejudice for lack of subject matter jurisdiction. |
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| Travillion v. Superintendent Rockview SCI |
| Court: US Court of Appeals for the Third Circuit Docket: 18-1282 Opinion Date: December 15, 2020 Judge: Luis Felipe Restrepo Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| On February 24, 2003, Diodati arrived at work, unlocked the store, and entered. Someone behind her “pushed his way inside," and told her to turn off the alarm. Diodati did so. The masked intruder demanded money from the safe. Diodati handed him envelopes containing money; he set down a folder that he had been carrying and a gun. When the robber stood up, he picked up the gun but left the folder, and told her to go to the second safe, which was in her office. Taking about $7,000, the intruder went out the back and into to a running automobile. Detective Godlewski processed for fingerprints on the counter, the door that the robber tore partially off its hinges, and the Manila left by the intruder. Some prints belonged to Travillion, who was found guilty of the robbery and sentenced to a mandatory 10-20 years' imprisonment, consecutive to the separate sentence of life without the possibility of parole that he was serving as a result of a separate 2006 second-degree murder conviction. The Third Circuit granted Travillion habeas relief, finding that the Pennsylvania court’s adjudication of his insufficient evidence claim involved an unreasonable application of clearly established federal law. Evidence that Travillion’s fingerprints were found on the easily movable folder and paper inside the folder and Diodati's description of the robber, which did not match Travillion but did not exclude him is not sufficient evidence for a rational trier of fact to place Travillion at the scene of the crime when the crime was committed beyond a reasonable doubt. |
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| United States v. Heatherly |
| Court: US Court of Appeals for the Third Circuit Docket: 19-2424 Opinion Date: December 11, 2020 Judge: Bibas Areas of Law: Criminal Law |
| Heatherly and William frequented an internet chat room where users regularly shared child pornography. One chat-room user repeatedly live-streamed himself raping and sexually abusing his six-year-old nephew. Heatherly and Staples encouraged him as he did so and repeatedly asked users for other child-pornography videos. The two were convicted of receiving child pornography and conspiring to receive child pornography, 18 U.S.C. 2251(d). The Sentencing Guidelines recommended 40-70 years’ imprisonment. The court sentenced Heatherly to 25 years and Staples to 30. The Third Circuit affirmed. The district court properly admitted videos shown in the chat room of children being violently sexually abused. After reviewing that evidence for itself, the court properly found that the risk of unfair prejudice did not substantially outweigh its probative value. The evidence was highly probative of the conspiracy and the defendants’ awareness of what they were involved in. The court also rejected challenges to the sufficiency of the evidence, to venue, to the admission of other exhibits, to jury instructions on venue, to the calculation of the Sentencing Guidelines ranges, and to the denial of a motion to sever the defendants’ trials. |
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| United States v. Palacios |
| Court: US Court of Appeals for the Fourth Circuit Docket: 18-6067 Opinion Date: December 15, 2020 Judge: Diana Jane Gribbon Motz Areas of Law: Criminal Law |
| Defendant sought to appeal the district court's order denying relief on his 28 U.S.C. 2255 motion. The Fourth Circuit granted a certificate of appealability on the issue of whether defendant's counsel rendered ineffective assistance by failing to assert a double jeopardy defense. The court affirmed the portion of the district court's order denying relief on defendant's ineffective assistance of counsel claim. The court first joined its sister circuits in holding that the Double Jeopardy Clause prohibits imposition of cumulative punishments for 18 U.S.C. 924(c) and 924(j) convictions based on the same conduct. However, the court cannot conclude that the double jeopardy claim that defendant now presses was sufficiently foreshadowed at the time of trial to render his counsel's failure to raise it constitutionally deficient representation. The court denied a certificate of appealability as to the remaining issues and dismissed the remainder of the appeal. |
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| Buntion v. Lumpkin |
| Court: US Court of Appeals for the Fifth Circuit Docket: 20-70004 Opinion Date: December 14, 2020 Judge: Per curiam Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Fifth Circuit denied petitioner's application for a certificate of appealability (COA). Petitioner was sentenced to death for shooting and killing a police officer. The court held that petitioner's claims, that his sentence violates the Eighth and Fourteenth Amendments because it was based on the jury's unreliable and inaccurate predictions about his future dangerousness, are procedurally defaulted and substantively meritless. Likewise, petitioner's claim that his sentence violates the Due Process Clause is also procedurally defaulted and substantively meritless. Finally, petitioner's claim that the Eighth Amendment prohibits his execution because of how much time he has spent on death row is unexhausted and unreviewable in federal habeas. |
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| Theriot v. Vashaw |
| Court: US Court of Appeals for the Sixth Circuit Docket: 20-1029 Opinion Date: December 16, 2020 Judge: Richard Allen Griffin Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| Theriot drove the vehicle from which Matthews shot an AK-47, killing a pregnant woman and injuring three others. Theriot admitted to getting the gun, which he illegally owned. One witness testified that Theriot made the decisions on where to go that night and intentionally drove his truck to the house and slowed down when he drove by. After the shooting, Theriot wiped the gun clean of prints; he was the last person seen with the gun. He urged witnesses to lie for him. In a Michigan state court trial, a jury convicted Theriot of second-degree murder, three counts of assault with intent to commit murder, assault of a pregnant individual causing death to fetus, and felony-firearm, The Michigan Court of Appeals affirmed his convictions. The Michigan Supreme Court denied Theriot leave to appeal. In a habeas corpus petition under 28 U.S.C. 2254, Theriot argued that the state trial court violated his constitutional rights when it prohibited him from questioning witnesses about his demeanor after the shooting (allegedly violating his right to present a defense and his right to confrontation) and prohibited him from admitting jailhouse telephone call recording excerpts into evidence (allegedly violating his right to present a defense). The Sixth Circuit affirmed the denial of relief without reaching the merits. Theriot procedurally defaulted his claims and did not persuade the court to excuse his default. |
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| United States v. Jett |
| Court: US Court of Appeals for the Seventh Circuit Dockets: 19-1622, 19-1673 Opinion Date: December 15, 2020 Judge: St. Eve Areas of Law: Criminal Law |
| Two armed men robbed three cash-and-check stores. Jett and McKissick were convicted of conspiracy under the Hobbs Act, 18 U.S.C. 1951(a), and attempted bank robbery “by force and violence, or by intimidation,” section 2113(a). The government alleged four “overt acts” for Count 1: three completed robberies and an attempted fourth robbery The defendants had unsuccessfully moved for a special verdict form requiring the jury to find unanimously that the defendants had committed one specific overt act. The district court sentenced each to 293 months’ imprisonment, based on a Guidelines range of 235-293 months, repeatedly commenting on the strength of the evidence. The Seventh Circuit reversed the attempted-robbery convictions because there was no evidence of force, violence, or intimidation, but otherwise affirmed, stating “Hobbs Act conspiracy does not have an overt-act requirement.” On remand, a probation officer calculated the defendants’ advisory Guidelines ranges as 188-235 months. Although Count 2 was gone, the defendants’ total offense levels were still 33, using a grouping analysis and multiple-count adjustment based on the three robberies and the attempted robbery. The defendants’ criminal history categories were lower because of intervening precedent. The Seventh Circuit affirmed the 230-month sentences imposed on remand. The district court erred by using the preponderance-of-the-evidence standard, and not the beyond-a-reasonable-doubt standard, to decide whether the defendants conspired to commit the “object offenses” of the conspiracy but the error was harmless. The court adequately explained increasing their sentences on the conspiracy count. |
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| United States v. Norwood |
| Court: US Court of Appeals for the Seventh Circuit Docket: 19-2178 Opinion Date: December 14, 2020 Judge: Kenneth Francis Ripple Areas of Law: Criminal Law |
| Norwood met a 15‐year‐old girl, a runaway from a state facility, at an Indianapolis gas station. Using drugs, violence, threats, and manipulative affection, he enticed her to have sexual intercourse with him and then prostituted her to countless men. A jury convicted him of attempted transportation of a minor across state lines with the intent that the minor engage in prostitution, 18 U.S.C. 2423(a) and (e). The district court sentenced him to 330 months’ imprisonment. The Seventh Circuit affirmed. Norwood’s efforts to prostitute the victim before attempting to transport her to Wisconsin was sufficient evidence of his intent to continue prostituting her once they crossed state lines. The court upheld the admission of the victim’s medical records; the victim’s statements about what had happened and when were for the primary purpose of medical treatment. They are non-testimonial. The court also upheld the admission of a recorded jail call in which Norwood talked about “pimping” a young “white girl” to whom he had given cocaine. By arguing that the victim had sex with five men per day because that was what Norwood intended, the government simply asked the jury to draw a reasonable inference from the evidence. The court rejected a challenge involving a juror and affirmed the substantive reasonableness of the sentence and the application of the five‐level enhancement under U.S.S.G 4B1.5(b). |
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| United States v. Wyatt |
| Court: US Court of Appeals for the Seventh Circuit Docket: 19-3378 Opinion Date: December 11, 2020 Judge: HAMILTON Areas of Law: Criminal Law |
| Wyatt pleaded guilty to conspiring to traffic a minor, 18 U.S.C. 1594(c). The government promised to recommend a below-Guidelines sentence of 10 years’ imprisonment and to notify the court about his post-plea cooperation. Wyatt’s recommended sentencing range was 262-327 months. At sentencing, Wyatt described how he had “turned his life around” and requested a three-year sentence but reiterated that he wanted to stand by his plea agreement. The government recommended a 10-year sentence but it was defense counsel, not the prosecution, that told the court about Wyatt’s cooperation. Wyatt did not object and received the recommended sentence. The Seventh Circuit affirmed. While the government’s silence breached the plea agreement, Wyatt did not show a reasonable probability that the breach had any effect on his sentence. |
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| United States v. Zamora |
| Court: US Court of Appeals for the Seventh Circuit Docket: 19-2707 Opinion Date: December 15, 2020 Judge: HAMILTON Areas of Law: Criminal Law |
| In 2009. Zamora, a high-ranking Latin Kings Chicago gang member, pleaded guilty to an extortion and racketeering conspiracy. After successfully challenging his sentence, Zamora was transferred to the Metropolitan Correctional Center (MCC) to await resentencing. At MCC, Zamora took orders from fellow inmates for contraband and directed his sister to obtain the items. She would pass synthetic marijuana, cigarettes, and cell phones to an MCC guard, Lizak, who smuggled the items to Zamora. Over six months, the group smuggled four loads of contraband into the MCC before Lizak withdrew from the scheme. Zamora was charged with conspiracy to commit an offense against the United States, 18 U.S.C. 371, and giving and offering bribes to a federal official, 18 U.S.C. 201(b)(1)(C). He pleaded guilty to bribery; the government dismissed the conspiracy charge. The district court calculated Zamora’s guideline sentencing range using USSG 2C1.1 and added a four-level enhancement because the offense “involved … [a] public official in a high-level decision-making or sensitive position.” The district court overruled Zamora’s objection, explaining that although Lizak “may not have had high-level decision-making authority,” a prison guard qualifies as a “sensitive position.” The Seventh Circuit affirmed. The Guideline’s commentary, which generally binds courts on issues of interpretation, explains that officials in sensitive positions include those who are situated similarly to a law enforcement officer. |
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| United States v. Barraza |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2718 Opinion Date: December 11, 2020 Judge: Lavenski R. Smith Areas of Law: Criminal Law, Juvenile Law |
| Defendant was convicted of kidnapping Maria Eloiza and her five-year-old son, resulting in the deaths of both. Defendant was 16-years-old at the time he committed the offense, and the district court sentenced him to the statutorily mandated term of life imprisonment. The Supreme Court subsequently held in Miller v. Alabama, 567 U.S. 460, 465 (2012), that a mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments. Based on Miller, the district court granted defendant's motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255. After the district court sentenced defendant to 50 years' imprisonment, defendant appealed. The Eighth Circuit affirmed, holding that the district court did not clearly err in finding defendant competent to proceed with resentencing. In this case, the district court was entitled to base its competency determination on the BOP doctor's psychological evaluation concluding that defendant had been restored to competency. The court also held that the district court did not plainly err by calculating an advisory Guidelines range of life imprisonment under USSG 2A1.1; the district court considered the 18 U.S.C. 3553(a) sentencing factors, including defendant's youth; and defendant's sentence, a downward variance from the Guidelines range of life, was not substantively unreasonable. |
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| United States v. Barthman |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-3268 Opinion Date: December 17, 2020 Judge: Bobby E. Shepherd Areas of Law: Criminal Law |
| Defendant pleaded guilty to one count of possession of child pornography involving a prepubescent minor. On remand, after denying defendant's request to withdraw his guilty plea, the district court imposed a sentence of 151 months imprisonment and supervised release for life, and imposed a special assessment of $5,000 pursuant to the Justice for Victims of Trafficking Act of 2015. The court concluded that the district court did not abuse its discretion and that defendant's sentence was substantively reasonable where the district court clearly weighed the 18 U.S.C. 3553(a) sentencing factors, including defendant's postsentencing rehabilitation. However, the court found that the district court clearly erred in its implicit finding that defendant was non-indigent and thus in imposing the special assessment. In this case, the district court clearly erred in not accounting for defendant's substantial negative net worth when it found he had the ability to pay in the future. Finally, the court concluded that the district court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. |
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| United States v. Brooks |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-3199 Opinion Date: December 17, 2020 Judge: Melloy Areas of Law: Criminal Law |
| Defendant was convicted by a jury of one count of being a felon in possession of a firearm; one count of simple possession of methamphetamine; and one count of possessing a firearm in furtherance of a narcotics offense. The Eighth Circuit affirmed the district court's denial of defendant's motion to suppress and held that the district court did not err in finding that the officers' search of defendant's person was reasonable. In this case, officers ordered defendant to the ground and patted him down, they knew he had been riding in a stolen vehicle and they knew that the driver had not complied with the officers' demands following the stop. Furthermore, at that point in the tense standoff, officers possessed reasonable suspicion that defendant's possible involvement with the stolen vehicle made him guilty of tampering or car theft, and they were permitted to pat him down for weapons pursuant to Terry v. Ohio. Therefore, the guns and drugs found during the pat-down were admissible. |
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| United States v. Carrillo |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2247 Opinion Date: December 15, 2020 Judge: Stras Areas of Law: Criminal Law |
| The Eighth Circuit affirmed defendant's 190 month sentence imposed after he pleaded guilty to two drug counts, one for conspiracy and another for possession. The court held that the district court did not err in rejecting defendant's contention that his prosecutions in South Dakota and Iowa violated double jeopardy. The court explained that when defendant pleaded guilty in the Iowa case, he had not yet pleaded guilty in the South Dakota case. Therefore, jeopardy had not attached. Under this unusual scenario, the court stated that defendant should have filed the motion to dismiss in South Dakota, after he pleaded guilty in Iowa. Accordingly, the district court could not have erred when it refused to dismiss the Iowa conspiracy charge. The court also held that defendant's sentence is not substantively unreasonable where the district court did not abuse its discretion by not varying downward. |
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| United States v. Fine |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-3485 Opinion Date: December 11, 2020 Judge: Steven M. Colloton Areas of Law: Criminal Law |
| The Eighth Circuit affirmed defendant's sentence imposed after he pleaded guilty to conspiring to distribute methamphetamine, distributing methamphetamine, conspiring to commit money laundering, and tampering with a government witness. The court held that the district court did not err in denying defendant's motion for a sentence reduction under 18 U.S.C. 3582(c)(1)(A)(i). The court explained that, although defendant's argument relies in part on decisions that were issued after his sentencing, his challenge to the career offender determination was still a challenge to his sentence. Furthermore, a federal inmate generally must challenge a sentence through a 28 U.S.C. 2255 motion, and a post-judgment motion that fits the description of a motion to vacate, set aside, or correct a sentence should be treated as a section 2255 motion. In this case, because defendant did not seek authorization to file a successive motion as required by section 2255(h), the district court correctly determined that defendant's challenge to his career offender determination was an unauthorized successive habeas petition. The court rejected defendant's other asserted ground for a sentence reduction, post-conviction rehabilitation. The court concluded that the district court correctly recognized that rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason. |
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| United States v. Harrell |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2350 Opinion Date: December 15, 2020 Judge: Jane Louise Kelly Areas of Law: Criminal Law |
| The Eighth Circuit affirmed defendant's 46 month sentence imposed after he pleaded guilty to being a prohibited person in possession of a firearm. Even if the court assumes that the district court's statement at sentencing about gun violence in the Quad Cities was plainly erroneous because it was unsupported by the sentencing record and the PSR, defendant could not show that the error affected his substantial rights. In this case, there was no reasonable probability that but for the alleged error his sentence would have been lower. The court also held that defendant's sentence is not substantively unreasonable where the district court considered the 18 U.S.C. 3553(a) factors, including mitigation circumstances such as defendant's mental health history and his considerable post-offense rehabilitation efforts. |
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| United States v. Hensley |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-2417 Opinion Date: December 16, 2020 Judge: Bobby E. Shepherd Areas of Law: Criminal Law |
| Hensley, charged with attempted enticement of a minor to engage in illegal sexual conduct (18 U.S.C. 2422(b)); attempted production of child pornography after having previously been convicted of child sex crimes (18 U.S.C. 2251(a) and 2251(e)), and possession of child pornography after having previously been convicted of child sex crimes (18 U.S.C. 2252(a)(4)(B)), moved to suppress evidence of statements he made during a custodial interrogation. The district court denied the motion, finding that officers had reasonable suspicion to stop his vehicle and that the encounter became consensual by the time questioning began. Hensley was convicted on all counts and was sentenced to 420 months’ imprisonment. The Eighth Circuit affirmed, rejecting arguments that the evidence was insufficient to support his convictions. The court also rejected challenges to the instruction on how the jury could properly consider the evidence of his prior convictions and illustrative examples regarding a “substantial step.” Any error in denying the motion to suppress was harmless. The prosecutor’s closing remarks were fairly supported by the evidence or reasonable inferences therefrom. The court noted that the district court was required to impose 420 months imprisonment as Hensley’s total punishment. |
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| United States v. Nelson |
| Court: US Court of Appeals for the Eighth Circuit Dockets: 19-3686, 19-3597 Opinion Date: December 16, 2020 Judge: Steven M. Colloton Areas of Law: Criminal Law |
| Nelson and Sykes pleaded guilty to conspiring to distribute heroin, 21 U.S.C. 841(a)(1), (b)(1)(B), 846. Both were serving state sentences at the time of their convictions. The district court sentenced Nelson to 77 months’ imprisonment and Sykes to 60 months’ imprisonment, with each federal sentence to run partially concurrent with the undischarged term of the respective defendant’s state sentences. The government had agreed to recommend sentences fully concurrent to the undischarged terms of state imprisonment. Both federal sentences were within the applicable advisory guideline range. The Eighth Circuit affirmed. The district court addressed at length the sentencing factors under 18 U.S.C. 3553(a), and the reasons given were sufficient to explain the court’s exercise of discretion on the question of concurrent sentencing. Neither state sentence was attributable solely to an offense that was relevant conduct to the federal drug conspiracy. |
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| United States v. Weckman |
| Court: US Court of Appeals for the Eighth Circuit Docket: 19-1954 Opinion Date: December 16, 2020 Judge: Bobby E. Shepherd Areas of Law: Criminal Law |
| Weckman entered a credit union and placed an apparent make-shift bomb on the counter. The tellers placed approximately $1,600 in his duffle bag, including GPS-enabled fake currency. Weckman fled on a bicycle, which he abandoned minutes later. He entered a vehicle driven by Nelson. Law enforcement found the couple. Weckman exited the vehicle and ran with a duffle bag. In the vehicle, officers discovered the items Weckman had worn in the credit union. An officer found the bag near Weckman; it contained other materials used in the robbery and the stolen money. Officers later searched Weckman’s residence and discovered materials like those identified in the “bomb.: The investigation also revealed incriminating communications. Weckman was charged with aggravated bank robbery, with the lesser-included offense of bank robbery, 18 U.S.C. 2113(a) and (d). Nelson was charged with aiding and abetting, 18 U.S.C. 2. They were tried together. Each claimed to have been unknowingly caught up in the other’s scheme. Weckman claimed that these defenses were antagonistic and unsuccessfully moved for severance on the last day of trial. A jury convicted Weckman of the lesser-included offense of bank robbery and acquitted Nelson. The Eighth Circuit affirmed, upholding the denial of the motion for severance. The jury instructions did not impermissibly modify the “intimidation” element of bank robbery from an objective inquiry into a subjective one; a juror’s dismissal for alleged misconduct cleansed the remaining jury of the resulting prejudice against Weckman. |
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| Christian v. Thomas |
| Court: US Court of Appeals for the Ninth Circuit Docket: 19-70036 Opinion Date: December 14, 2020 Judge: Carlos T. Bea Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Ninth Circuit denied applicant's application for federal habeas corpus relief from his 1997 conviction in Hawaii state court for second-degree murder where applicant seeks retroactive relief based on McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The district court construed the motion as an application to file a second or successive (SOS) habeas petition and referred it to the Ninth Circuit. The panel accepted the referral and confirmed that the Rule 60(d) filing is properly construed as an application for authorization to file an SOS habeas petition. The panel held that the application does not make the required prima facie showing pursuant to 28 U.S.C. 2244(b)(2). The panel assumed without deciding that McCoy did indeed create a new rule of constitutional law and that it was previously unavailable to applicant, but found that the application was otherwise deficient. In this case, applicant failed to show that McCoy was made retroactive on collateral review by the Supreme Court and that his proposed petition would rely on McCoy's rule. |
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| Tate v. United States |
| Court: US Court of Appeals for the Ninth Circuit Docket: 20-70785 Opinion Date: December 14, 2020 Judge: Per Curiam Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Ninth Circuit denied applicant's request for authorization to file a second or successive motion under 28 U.S.C. 2255 to vacate his 2015 conviction and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1) and 924(a)(2), based on Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif held that a conviction under section 922(g), which prohibits firearm possession for certain categories of individuals, and section 924(a)(2), which imposes penalties on those who "knowingly violate" section 922(g), requires proof that the defendant "knew he belonged to the relevant category of persons barred from possessing a firearm." The panel held that applicant failed to make a prima facie showing that Rehaif announced a new constitutional rule as required by section 2244(b)(2)(A), (b)(3)(C). The panel explained that in announcing the scope of "knowingly" in section 924(a)(2), Rehaif announced a statutory, rather than a constitutional, rule. |
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| United States v. Hardiman |
| Court: US Court of Appeals for the Ninth Circuit Docket: 16-50422 Opinion Date: December 15, 2020 Judge: Per Curiam Areas of Law: Criminal Law |
| The Ninth Circuit affirmed the district court's denial of Jermain Hardiman's motions under 28 U.S.C. 2255 and 18 U.S.C. 3582(c)(2). A jury found that Hardiman was responsible for distributing at least 28 grams but less than 280 grams of cocaine base. At sentencing, the district court disagreed and found that Hardiman should be held responsible for more than 280 grams of cocaine base. After Hardiman’s direct appeal became final, the panel held in United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016), that a district court is not entitled to make a drug quantity finding in excess of that found by the jury in its special verdict. The panel held that Pimentel-Lopez announced a "new" rule of criminal procedure which is not retroactive under Teague v. Lane, 489 U.S. 288, 310 (1989). Accordingly, Pimentel-Lopez is inapplicable to Hardiman's section 2255 motion, and the district court did not err by denying the motion. The panel also held that the district court did not err at the section 3582(c)(2) proceeding by failing to revisit its drug quantity finding under Pimentel-Lopez and the Sixth Amendment. The panel explained that Hardiman's arguments about Pimentel-Lopez were not affected by Amendment 782 and therefore are outside the scope of the proceeding authorized by section 3582(c)(2). In this case, Hardiman does not otherwise argue that the district court abused its discretion by denying his section 3582(c)(2) motion based on its assessment of the section 3553(a) factors or the circumstances of his case. |
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| United States v. Alfred |
| Court: US Court of Appeals for the Tenth Circuit Docket: 19-1243 Opinion Date: December 14, 2020 Judge: Carolyn Baldwin McHugh Areas of Law: Constitutional Law, Criminal Law |
| Melvin Roshard Alfred was convicted by jury of coercion and enticement (Count 1) and facilitating prostitution (Count 2). Using a social media website, “Tagged,” Alfred attempted to convince a person he believed to be a nineteen-year-old woman living in Colorado to engage in prostitution. In fact, Alfred was communicating with FBI agents. Before trial, the government indicated it intended to admit eight “memes”: Alfred had posted the memes on Tagged in or before 2015, three years prior to Alfred’s contact with the FBI-run profile. The memes contained laudatory references to pimping and pimping culture and also contained graphic depictions suggesting dire consequences of engaging in prostitution without a pimp. The district court concluded the memes were admissible as intrinsic evidence of the crimes charged and that the probative value of six of the eight memes was not outweighed by the danger of unfair prejudice. The district court excluded the other two memes under Rule 403. On appeal, Alfred argued the district court abused its discretion in finding the memes were intrinsic evidence of the charged counts and in finding the probative value of the six memes admitted was not outweighed by the danger of unfair prejudice. Finding no such abuse of discretion, the Tenth Circuit affirmed. |
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| United States v. Allen |
| Court: US Court of Appeals for the Tenth Circuit Docket: 19-1380 Opinion Date: December 17, 2020 Judge: Mary Beck Briscoe Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law, Zoning, Planning & Land Use |
| Defendant-appellant Robert Allen appealed his conviction for depredation of government property. arguing his conviction violated both the Fifth Amendment’s Due Process Clause and separation of powers principles. Allen also appealed the district court’s restitution order of $20,300, claiming the order included restitution for uncharged conduct, and that the district court erred in applying the procedural framework of the Mandatory Victim Restitution Act (MVRA) by placing the burden on him to disprove the amount of loss contained in the presentence report and by ordering a restitution amount unsupported by evidence. After the parties completed briefing on this case, the government filed a notice of concession, acknowledging that the restitution order was erroneous and suggesting remand for resentencing on restitution. The Tenth Circuit affirmed Allen’s conviction, vacated the district court’s restitution order, and remanded the case to the district court to recalculate restitution. |
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| United States v. Ybarra Cruz |
| Court: US Court of Appeals for the Tenth Circuit Docket: 19-2132 Opinion Date: December 14, 2020 Judge: Gregory Alan Phillips Areas of Law: Constitutional Law, Criminal Law |
| In March 2018, Francisco Ybarra Cruz, a former confidential informant in federal drug investigations, was stopped for a New Mexico traffic violation. After obtaining consent to search, the officer found more than ten pounds of methamphetamine in Ybarra Cruz’s truck. After being indicted, Ybarra Cruz moved to suppress the methamphetamine evidence and his Mirandized statements and admissions. The district court denied this motion, and a jury later convicted him for possessing the methamphetamine with an intent to distribute it. On appeal, Ybarra Cruz argued the district court: (1) erred by not granting his motion to suppress, on grounds that the police officer lacked reasonable suspicion to initiate the traffic stop; (2) erred by not acquitting him based on his public-authority defense (that he reasonably believed he was acting with government authority in transporting the methamphetamine); (3) abused its discretion by not granting him a new trial on grounds that the jury might not have understood that crediting his public-authority defense would require acquittal on both counts; and (4) abused its discretion by not sua sponte instructing on the affirmative defense of duress. After review of the trial court record, the Tenth Circuit rejected each of these arguments and affirmed. |
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| Stanton v. State |
| Court: Arkansas Supreme Court Citation: 2020 Ark. 418 Opinion Date: December 17, 2020 Judge: Womack Areas of Law: Criminal Law, Legal Ethics |
| The Supreme Court reversed Defendant's conviction of first degree murder and sentence of life imprisonment, holding that the per se improper political activity of the prosecutor campaigning for a judicial position during trial so infected the integrity of the proceeding as to warrant a new trial. This was Defendant's third trial for the murder of Jesse Hamilton. The first conviction was reversed on appeal, and a mistrial occurred on remand. After a third trial, Defendant was again convicted of murder. Prosecutor Stephanie Barrett prosecuted the case, and at the time of the third trial, Barrett was campaigning for a position in the Arkansas Court of Appeals. Defendant moved for a mistrial based on an appearance of impropriety. The motion was denied. Following his conviction, Defendant appealed the circuit court's decisions related to the prosecutor's campaigning and solicitation of signatures at the courthouse. The Supreme Court reversed, holding that the prosecutor's improper political activity and the failure of the trial court to resolve the situation so compromised the integrity of Defendant's trial as to warrant a new trial. The Court remanded the case for a fourth trial. |
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| State v. Higginbotham |
| Court: Arkansas Supreme Court Citation: 2020 Ark. 315 Opinion Date: December 10, 2020 Judge: Womack Areas of Law: Criminal Law |
| The Supreme Court reversed the judgment of the circuit court dismissing charges against Defendant based on a speedy-trial violation, holding that the circuit court erred in finding that the necessary conditions for implementation of the Interstate Agreement on Detainers (IAD), Ark. Code Ann. 16-95-101, had been met. Defendant filed a motion to dismiss all pending criminal actions against him arguing that he had not been brought to trial within 180 days of the date his notice and request for final disposition were filed, in violation of the IAD's speedy-trial provision. The circuit court granted the motion. The Supreme Court reversed, holding (1) a detainer, unless based upon an untried indictment, information or complaint, will not trigger application of the IAD; and (2) the circuit court erred in finding that the IAD applied in Defendant's case. |
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| People v. Gentile |
| Court: Supreme Court of California Docket: S256698 Opinion Date: December 17, 2020 Judge: Goodwin Liu Areas of Law: Criminal Law |
| The Supreme Court held that Senate Bill 1437 bars a conviction for second degree murder under the natural and probable consequences theory and that the procedure set forth in Cal. Penal Code 1170.95 is the exclusive mechanism for retroactive relief and that, therefore, the ameliorative provisions of Senate Bill 1437 do not apply to nonfinal judgments on direct appeal. Among other things, Senate Bill 1437 amended Cal. Penal Code 188 to provide that in order to be convicted of murder, a principal in a crime shall act with malice aforethought. At issue in this appeal was the affect of this amendment on the natural and probable consequences doctrine as it applies to second degree murder. The Supreme Court remanded this matter to the court of appeal to affirm Defendant's second degree murder conviction without prejudice to any petition for relief that Defendant may file under section 1170.95, holding (1) section 188(a)(3) bars conviction for second degree murder under a natural and probable consequences theory; and (2) the ameliorative provisions of Senate Bill 1437 do not automatically apply to nonfinal judgments on direct appeal. |
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| California v. Hines |
| Court: California Courts of Appeal Docket: E071700(Fourth Appellate District) Opinion Date: December 14, 2020 Judge: Slough Areas of Law: Constitutional Law, Criminal Law |
| Defendant-appellant Brandon Hines was convicted by jury of illegally possessing firearms while out on bond, as well as spousal abuse and witness intimidation. The trial court sentenced him to 11 years 4 months in prison. During trial proceedings, Hines acted disruptively by making delusional and paranoid comments about the prosecutor. There was also evidence Hines had suffered, and continued to suffer, from mental illness. As a result, defense counsel twice asked to have Hines evaluated psychologically. The evaluations didn’t adequately address Hines’s competence to stand trial within the meaning of Penal Code section 1368. The trial judge declined to declare a doubt about his competence and proceeded to jury selection. In the middle of trial was when defense counsel declared he had come to doubt his client's competence. A psychiatrist examined Hines and diagnosed him as having schizophrenia, bipolar disorder, anxiety, depression, and post-traumatic stress disorder. Defense counsel didn’t call the psychiatrist to testify but represented he had offered the qualified opinion that Hines wasn’t competent to stand trial. The trial judge again declined to declare a doubt as to Hines’s competence and refused to suspend the trial on the ground Hines had in fact been assisting in his defense. Hines then testified at some length without further incident, and the jury convicted him as charged. On appeal, Hines argued: (1) the trial judge was required to suspend the trial and hold a full competency hearing under Penal Code section 1368; and (2) the trial court erred in admitting certain rebuttal testimony. The Court of Appeal affirmed: since the trial judge didn’t declare a doubt about Hines’s competence, the Court felt compelled to affirm unless defense counsel presented substantial evidence to doubt Hines’s competence. "Hines’s conduct and the information defense counsel adduced about him was worrisome but didn’t constitute substantial evidence of his incompetence because defense counsel didn’t link his outbursts and mental illness to any limitation on his ability to understand the proceedings or provide rational assistance to defense counsel." Further, the trial court did not abuse its discretion in admitting the testimony, and "in any event, the admission was harmless." |
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| California v. Koenig |
| Court: California Courts of Appeal Docket: C074411(Third Appellate District) Opinion Date: December 15, 2020 Judge: William J. Murray, Jr. Areas of Law: Constitutional Law, Criminal Law, White Collar Crime |
| James Stanley Koenig was convicted by jury on 33 counts of securities fraud, mostly involving Corporations Code section 25401, in addition to two counts of residential burglary. He was sentenced to an aggregate term of 42 years eight months. On appeal, defendant raised 15 contentions. The Court of Appeal concluded the trial court erred by not instructing on mistake of law as to some counts and it erred in failing to define the term “indirect” for the jury as to one count. However, the Court concluded these errors were harmless and found no merit to the other contentions. Accordingly, Koenig's convictions were affirmed. |
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| California v. Maxwell |
| Court: California Courts of Appeal Docket: C080890(Third Appellate District) Opinion Date: December 11, 2020 Judge: Cole Blease Areas of Law: Constitutional Law, Criminal Law |
| Anthony Maxwell was convicted by jury of possessing methadone, drug paraphernalia, and on two occasions, possessing heroin with the intent to sell it. The trial court found true several allegations that lengthened the sentence for these offenses, including that defendant had a prior “strike” conviction, served a prior prison term, and committed one of the offenses while out on bail on another offense. The court sentenced defendant to 13 years in prison. On appeal, defendant argued: (1) the trial court wrongly denied his two motions to suppress evidence; (2) the court wrongly instructed the jury about “uncharged offenses” (that is, offenses that were discussed but not charged in this case); and (3) the court wrongly imposed several sentencing enhancements: an “on bail” enhancement - which the court imposed because defendant committed one of the offenses here while out on bail on another offense - and a prior prison term enhancement - which the court imposed because defendant served a prior prison term shortly before he committed the offenses here. After review of the trial court record, the Court of Appeal agreed with defendant in part. A sentencing enhancement for a prior prison term required, among other things, that the prior prison term be based on a felony conviction. "But that was not true of the prior prison term here." The Court found that although defendant served this prison term after being convicted of a felony, that felony conviction was reduced to a misdemeanor under Proposition 47 (the Safe Neighborhoods and Schools Act) before sentencing in this case. The trial court thus had no ground for increasing defendant’s sentence based on his serving this prior prison term. Judgment was modified to address this error, and judgment was affirmed as modified. |
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| California v. Palacios |
| Court: California Courts of Appeal Docket: E074054(Fourth Appellate District) Opinion Date: December 17, 2020 Judge: Carol D. Codrington Areas of Law: Constitutional Law, Criminal Law |
| Senate Bill 1437, passed in 2018 and signed into law, prospectively amended the mens rea requirements for the offense of murder and restricted the circumstances under which a person can be liable for murder under the felony-murder rule or the natural and probable consequences doctrine. The Bill also established a procedure permitting certain qualifying persons who were previously convicted of felony murder or murder under the natural and probable consequences doctrine to petition the courts that sentenced them to vacate their murder convictions and obtain resentencing on any remaining counts. Defendant-appellant Alexander Palacios felt he was entitled to such relief. He appealed an order denying his petition to vacate his first degree murder conviction and obtain resentencing under Senate Bill 1437. Defendant argued the trial court erred in summarily denying his petition because he established a prima facie case entitling him to a full hearing pursuant to Penal Code section 1170.95. The Court of Appeal rejected this contention and affirmed the postjudgment order denying defendant’s section 1170.95 petition. |
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| In re Parrish |
| Court: California Courts of Appeal Docket: B292582A(Second Appellate District) Opinion Date: December 11, 2020 Judge: Wiley Areas of Law: Criminal Law |
| Kaheal Jevon Parrish was sentenced to life in prison without parole for felony murder. Although he was not the shooter, Penal Code section 190.2, subdivision (d) authorized his sentence, because Parrish was a major participant who acted with reckless indifference to human life. On remand from the Supreme Court for reconsideration in light of In re Scoggins (2020) 9 Cal.5th 667, the Court of Appeal denied Parrish's petition for habeas corpus relief under Scoggins, People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, 610. The court concluded that Parrish was a major participant in the robbery who acted with reckless indifference to human life where he knew about the guns at the robbery, he was at the murder scene from start to finish, he knew his cohorts were not peaceable or cautious, the brevity of the robbery and the speed of the murder arose because Parrish told the gunmen a witness was calling the police, and defendant took no steps to minimize risk at any point. |
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| Moore v. Super. Ct. |
| Court: California Courts of Appeal Docket: E074429(Fourth Appellate District) Opinion Date: December 11, 2020 Judge: Fields Areas of Law: Constitutional Law, Criminal Law |
| Petitioner David Moore, Sr., was charged in a felony complaint with driving under the influence of alcohol, causing injury, and with driving with a blood-alcohol content of 0.08 percent or more, causing injury. The complaint further alleged that Moore had a blood-alcohol content of 0.15 percent or more, personally inflicted great bodily injury on one victim, and proximately caused bodily injury to two additional victims. The offenses allegedly occurred on November 22, 2018, when Moore’s vehicle collided with another vehicle, injuring three occupants of the other vehicle. Moore pled not guilty to the charges and denied the enhancement allegations. Before trial, on November 8, 2019, Moore’s counsel orally moved the trial court to hold a “prima facie hearing” to determine whether Moore met the statutory criteria to qualify for pretrial mental health diversion. The trial court denied Moore’s motion on the ground that Vehicle Code section 23640 rendered all felony and misdemeanor DUI defendants ineligible for pretrial mental health diversion under Penal Code section 1001.36. Moore then petitioned the Court of Appeal for a writ of mandate, claiming the trial court’s order was contrary to the plain language of Penal Code section 1001.36, its legislative history, and public policy. The Court of Appeal concluded that the legislative history of Penal Code sections 1001.36 and1001.80 showed that the California Legislature did not intend to make DUI defendants eligible for pretrial mental health diversion under section 1001.36. The Court denied Moore's petition and dissolved the order staying trial court proceedings. |
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| People v. Estrada |
| Court: California Courts of Appeal Docket: A160032(First Appellate District) Opinion Date: December 16, 2020 Judge: Burns Areas of Law: Criminal Law |
| In 1993, Estrada pled no contest to second-degree murder and admitted a deadly weapon use enhancement allegation for his use of a knife. He was sentenced to an indeterminate 15-years-to-life term for the murder plus a consecutive one-year term for the weapon use enhancement. A 2015 California law requires courts to consider, as mitigating factors weighing in favor of a low-term determinate sentence, any trauma, substance abuse, and mental health problems caused by a defendant’s service in the U.S. military (Penal Code 1170.91(a)). A 2018 amendment allows those sentenced for a felony conviction before January 2015 to petition for a resentencing hearing at which the court could consider mitigating factors related to military service. In 2019, Estrada sought resentencing under section 1170.91(b). He attached evidence of his military service and substance abuse, which allegedly began during his military service. The court of appeal affirmed that Estrada is not eligible for resentencing. Section 1170.91(b)(1) limits resentencing eligibility to those serving determinate sentences under section 1170(b). Sentences of life imprisonment and sentences of a number of years to life, such as Estrada’s term (section 190(a)), are not subject to the determinate sentencing law. Had the Legislature intended for section 1170.91 to apply to indeterminate terms under section 1168(b), it would not have limited its application to terms imposed under section 1170(b). |
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| People v. France |
| Court: California Courts of Appeal Docket: A158609(First Appellate District) Opinion Date: December 15, 2020 Judge: Brown Areas of Law: Criminal Law |
| In 2018, France was charged as a felon in possession of a firearm (Penal Code section 29800(a)(1)); two prior strike allegations under sections 1170.12 and 667; and three enhancements under section 667.5(b) for having served prior prison terms. France pled guilty to the charge and one of the prior prison term enhancements and waived his entitlement to 403 days of custody credits, in exchange for dismissal of the rest of the enhancements and strike allegations. France stipulated to a sentence of three years in prison for the charge and one year for the enhancement; the plea deal specified that execution of the sentence would be suspended and France would be placed on three years of probation. The trial court sentenced France accordingly. A probation officer subsequently alleged France had violated the terms of his probation by committing misdemeanor domestic battery. After a hearing, the court found that France had violated his probation, lifted the stay of the suspended sentence, and ordered France committed to state prison for four years. The court of appeal modified the judgment. Senate Bill No. 136, enacted after France filed his notice of appeal, entitles him to have the one-year prior prison term enhancement stricken with no other changes to his negotiated sentence. |
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| People v. Hester |
| Court: California Courts of Appeal Docket: B299886(Second Appellate District) Opinion Date: December 14, 2020 Judge: Elizabeth A. Grimes Areas of Law: Criminal Law |
| The Court of Appeal affirmed defendant's conviction for making criminal threats in violation of Penal Code 422, subdivision (a) (count 2) and carrying a concealed dirk or dagger in violation of Penal Code section 21310 (count 3). The court held that the evidence was sufficient to support defendant's conviction on count 2 where the testimony of the sole percipient witness was credible. The court also held that the evidence was sufficient to support defendant's conviction on count 3 where the statutory exception to Penal Code section 16470 for nonlocking folding knives did not apply to defendant's box cutters, and defendant was wearing the backpack containing the box cutter and the box cutter was therefore on his person within the meaning of section 21310. |
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| People v. Jinkins |
| Court: California Courts of Appeal Docket: B301344(Second Appellate District) Opinion Date: December 15, 2020 Judge: Moor Areas of Law: Criminal Law |
| The Court of Appeal dismissed defendant's appeal of the trial court's order denying his motion to modify a $5,100 restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (b)(1). Defendant argued that the trial court's denial of his motion to modify the restitution fine is an appealable order because it is an "order made after judgment affecting the substantial rights of a party" under section 1237.2. The court held that defendant's motion requesting that the trial court reduce the restitution fine is a nonappealable order. Whether viewed as a due process claim under People v. Dueñas (2019) 30 Cal.App.5th 1157, (as the trial court saw it) or as a statutory claim (as it appears to this court), defendant's contention is based on factual arguments concerning his ability to pay, and does not fall within the exception carved out for unauthorized sentences. Therefore, the trial court lacked discretion to review the motion. |
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| People v. Yanaga |
| Court: California Courts of Appeal Docket: B302291(Second Appellate District) Opinion Date: December 14, 2020 Judge: Kenneth R. Yegan Areas of Law: Criminal Law |
| Defendant appealed a postjudgment order denying his motion to strike a Penal Code section 12022.53 subdivision (d) firearm enhancement after the Court of Appeal remanded the matter for resentencing on the enhancement. The court reversed, concluding that the trial court prejudicially erred because it was unaware of the scope of its discretionary power. In this case, the trial court refused to consider defendant's postjudgment rehabilitative efforts in prison because it mistakenly believed it could consider only information before the original sentencing court. |
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| The People v. A.G. |
| Court: California Courts of Appeal Docket: B304063(Second Appellate District) Opinion Date: December 14, 2020 Judge: Currey Areas of Law: Criminal Law, Juvenile Law |
| Defendant, a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The caption stated, "Everybody go to school tomorrow. I'm taking gum." The Court of Appeal affirmed defendant's conviction, holding that the juvenile court's findings are supported by substantial evidence. The juvenile court rejected defendant's testimony that he was joking as not credible and inconsistent with what defendant told a school police detective who investigated the threats. In this case, the record contains sufficient evidence defendant intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury; a reasonable trier of fact could have found defendant intended to threaten an expansive group of people, which included the two individuals at issue; considering the surrounding circumstances, including the notoriety of previous school shootings, defendant's story was sufficiently specific and unequivocal to convey the threat of a school shooting the next day; and the threat was immediate and reasonably placed the two individuals in fear. |
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| Colorado in the Interest of B.D. |
| Court: Colorado Supreme Court Citation: 2020 CO 87 Opinion Date: December 14, 2020 Judge: William W. Hood, III Areas of Law: Constitutional Law, Criminal Law, Juvenile Law |
| Several boys broke into two homes, one of which was owned by a man old enough to be considered an “at-risk” victim. When that man returned home, he happened upon one of the boys holding the "spoils of an ill-conceived, juvenile burglary." The others, including B.D., remained outside, oblivious to the elderly man’s arrival. All the boys quickly fled. By this opinion, the Colorado Supreme Court addressed the scope of complicitor liability for a fact that aggravates the punishment for theft; namely, an at-risk victim’s presence. Based on the plain language of the controlling statutes, the Supreme Court concluded that a complicitor need not be aware that an at-risk victim was present because it was a strict liability sentence enhancer and not an element of the offense. Accordingly, the Court reversed the judgment of the court of appeals and remanded the case for the district court to reinstate the adjudication and sentence. |
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| Colorado v. Bott |
| Court: Colorado Supreme Court Citation: 2020 CO 86 Opinion Date: December 14, 2020 Judge: Coats Areas of Law: Constitutional Law, Criminal Law |
| The Court of Appeals vacated eleven of Joshua Bott's twelve convictions for sexual exploitation of a child by possession of sexually exploitative material. Relying on language from the statute's legislative declaration and appellate decisional law predating then-current amendments to the statute, the trial court denied Bott’s motion to dismiss all but one of these exploitation counts as multiplicitous, finding that the legislature intended to permit conviction for each single incident of victimization. The court of appeals disagreed, finding instead that the applicable unit of prosecution was determined by the legislature when it chose to amend the statute to designate the act of possessing more than twenty different items qualifying as sexually exploitative material a class 4 felony. Accordingly, the court of appeals held Bott’s conviction of multiple class 4 felonies for possessing separate items numbering multiple times greater than twenty violated his constitutional protection against being subjected to jeopardy more than once for the same crime. Finding that the statute at issue "makes clear" the legislature's intent that possession of any number of items exceeding twenty that qualified as sexually exploitative material constituted a single offense. Accordingly, the appellate court's judgment was affirmed. |
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| Linnebur v. Colorado |
| Court: Colorado Supreme Court Citation: 2020 CO 79M Opinion Date: December 14, 2020 Judge: Hart Areas of Law: Constitutional Law, Criminal Law |
| In March 2016, law enforcement contacted Charles Linnebur after receiving a call that he had crashed his vehicle into a fence and might be driving under the influence of alcohol. Although he initially denied that he had been drinking, Linnebur eventually admitted that he had consumed whiskey that day. He was arrested, and a blood test revealed that his blood alcohol level was well above the legal limit. The State charged Linnebur with DUI and DUI per se, and sought felony convictions under sections 42-4-1301(1)(a) and (2)(a), C.R.S. (2020), which provided that DUI and DUI per se were felonies if they “occurred after three or more prior convictions” for, among other things, DUI, DUI per se, or DWAI. Prior to trial, Linnebur filed a motion in limine arguing that the fact of his prior convictions was a substantive element of felony DUI that had to be found by a jury beyond a reasonable doubt. The trial court denied the motion, concluding instead that Linnebur’s prior convictions were “merely sentence enhancers or aggravating factors” and could be proved to the court by a preponderance of the evidence. The Colorado Supreme Court concluded the fact of prior convictions as an element of the crime had to be proved to the jury beyond a reasonable doubt, not as a sentence enhancer, which a judge might find by a preponderance of the evidence. Because the court of appeals erred in arriving at the opposite conclusion, judgment was reversed and the matter remanded for further proceedings. |
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| Idaho v. Rebo |
| Court: Idaho Supreme Court - Criminal Docket: 46451 Opinion Date: December 16, 2020 Judge: Bevan Areas of Law: Constitutional Law, Criminal Law |
| Jesse Rebo shared a home with his wife in Coeur d’Alene for ten years. Due to a domestic assault conviction, Rebo had been ordered by a judge to not go within 300 feet of his wife or the family residence. Even so, about a week after the court issued the order, Rebo was seen near his wife, outside the home, by a police officer. The officer announced herself and Rebo retreated inside. The officer entered the home and arrested Rebo. Methamphetamine was ultimately found on Rebo’s person when he was booked at the jail. Rebo brought a motion to suppress that evidence, which the district court denied. The court ruled that Rebo lacked standing to challenge the officer’s warrantless entry into his residence because society would not recognize Rebo’s subjective expectation of privacy in the residence from which a valid no contact order prohibited Rebo from entering. Rebo appealed, arguing that his ownership interest in the home allowed him to exclude others, including the officer from the home. Rebo also argued no exigent circumstances existed to justify the officer’s warrantless entry, and the evidence discovered after the officer’s unlawful entry should have been suppressed as “fruit of the poisonous tree.” Finding no reversible error, the Idaho Supreme Court affirmed the district court. |
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| State v. Boothby |
| Court: Iowa Supreme Court Docket: 19-0454 Opinion Date: December 11, 2020 Judge: Oxley Areas of Law: Criminal Law |
| The Supreme Court affirmed Defendant's convictions for assault with a dangerous weapon and third degree criminal mischief, holding that Iowa R. Evid. 5.701 and 5.702 did not require certain testimony concerning historical cell site data to be presented by an expert. Investigating officers used Defendant's cell phone records to place him in the general vicinity at the time of the incident giving rise to Defendant's convictions. On appeal, Defendant argued that his counsel provided ineffective assistance by not challenging the phone records as inadmissible hearsay and by not challenging the testimony provided by an officer as an unqualified expert. The Supreme Court affirmed, holding (1) the testimony at issue was not based on specialized knowledge and thus did not require an expert; and (2) therefore, Defendant's counsel was not ineffective for failing to challenge the phone records or the officer's testimony. |
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| State v. Buelow |
| Court: Iowa Supreme Court Docket: 18-0733 Opinion Date: December 11, 2020 Judge: Christensen Areas of Law: Criminal Law |
| The Supreme Court reversed the judgment of the district court convicting Defendant of second-degree murder, holding that the exclusion of evidence regarding the victim's mental health records and the limitation of testimony on those records was not harmless error. On appeal, Defendant argued that the district court erred when it excluded his mental health records at trial and limited review of those records and erred in forbidding lay testimony on the victim's suicidal behavior. The court of appeals reversed on the evidentiary rulings regarding Defendant's medical records. The Supreme Court affirmed, holding (1) evidence of a person's suicidal disposition is not properly analyzed as character evidence under the Iowa Rules of Evidence in cases where the defendant alleges suicide; (2) the temporal proximity of the medical records was not too remote to be relevant to Defendant's defense that the victim committed suicide; and (3) the exclusion of the victim's medical records and limitation of related admissible testimony was not harmless error. |
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| Louisiana v. Johnson |
| Court: Louisiana Supreme Court Docket: 2019-K-02004 Opinion Date: December 11, 2020 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law |
| Defendant Tyrone Johnson pled guilty as charged to distribution of methamphetamine, for which he received a 23 year sentence of imprisonment at hard labor in exchange for the State promising not to file a habitual offender bill of information and seek a life sentence. The court of appeal vacated the plea and sentence because it found defendant was denied his right to counsel of choice when the district court refused on Friday to continue the Monday trial date to allow defendant additional time in which to hire a new attorney. Under the circumstances of this case, the Louisiana Supreme Court found the court of appeal erred. Accordingly, the Supreme Court reinstated the guilty plea and sentence. |
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| Louisiana v. Sewell |
| Court: Louisiana Supreme Court Docket: 2020-KK-00300 Opinion Date: December 11, 2020 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law, Immigration Law |
| Ronald Sewell, a 20-year-old Jamaican national, pleaded guilty to two counts of first degree robbery and pleaded guilty as charged to possession of a stolen firearm. The district court sentenced him to serve three years imprisonment at hard labor without parole eligibility for each first degree robbery, and one year imprisonment at hard labor for possession of a stolen firearm, with the sentences to run concurrently. After he served his sentences, the federal Government commenced removal proceedings based on these felony guilty pleas. Sewell filed an application for post-conviction relief in which he contended the guilty pleas had to be set aside because counsel rendered ineffective assistance by failing to advise him that they would result in his removal from the United States. Sewell’s former counsel testified at the post-conviction evidentiary hearing stating she was unaware that Sewell was not a United States citizen, and that she would have advised him of the possibility of removal if she had known his status as a noncitizen. Former counsel also testified that Sewell spoke English fluently and without an accent, and that he never informed her that he was born outside of the United States. The judge who presided over the post-conviction evidentiary hearing also accepted the guilty pleas. The judge indicated that she recalled the case and agreed that nothing about Sewell would have prompted anyone to question whether he was a United States citizen. Nonetheless, the district court granted Sewell’s application for post-conviction relief and ordered that his guilty pleas be withdrawn. The court noted that no one had advised defendant of the strong likelihood he would be removed from the United States based on his guilty pleas, the plea form did not contain any place to indicate citizenship, and therefore the court found it incumbent upon it to grant the relief requested. The State appealed. The Louisiana Supreme Court reversed, finding that under the circumstances here, Sewell failed to carry his burden post-conviction that his attorney’s failure to inquire into his citizenship fell below an objective standard of reasonableness under Strickland v. Washington, 466 U.S. 668 (1984). Therefore, the district court erred in granting Sewell’s application for post-conviction relief and in ordering that Sewell’s guilty pleas be withdrawn. Accordingly, the State’s application was granted and the rulings of the courts below reversed. Sewell’s guilty pleas were reinstated. |
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| State v. Shirey |
| Court: Maine Supreme Judicial Court Citation: 2020 ME 136 Opinion Date: December 15, 2020 Judge: Horton Areas of Law: Constitutional Law, Criminal Law |
| The Supreme Judicial Court affirmed the interlocutory order of the superior court denying Defendant's motion to dismiss on double jeopardy grounds a superseding indictment against him, holding that neither the United States Double Jeopardy Clause nor its counterpart in the Maine Constitution barred the State from retrying Defendant on the superseding indictment. On appeal, Defendant argued that the superior court erred in denying his motion to dismiss because the dismissal of the original indictment against him after the jury was empaneled and sworn barred the State from charging him twice with the same offense. The Supreme Judicial Court clarified the implications of a defective indictment for purposes of the Double Jeopardy Clauses of the state and federal Constitutions and affirmed, holding (1) jeopardy attached in Defendant's trial; but (2) the trial court's dismissal of the indictment was not the equivalent of an acquittal and did not bar retrial. |
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| Commonwealth v. Ashford |
| Court: Massachusetts Supreme Judicial Court Docket: SJC-12874 Opinion Date: December 16, 2020 Judge: Gaziano Areas of Law: Criminal Law |
| The Supreme Judicial Court vacated Defendant's conviction of unlawful possession of a loaded firearm, in violation of Mass. Gen. Laws ch. 269, 10(n), holding that the holding in Commonwealth v. Brown, 479 Mass. 600 (2018) that the Commonwealth must prove Defendant knew that the gun was loaded in order to establish a violation of the statute, applies retroactively to cases on collateral review. Defendant was convicted of several crimes and of a sentencing enhancement for two prior violent crimes under the Massachusetts armed career criminal act (ACCA), Mass. Gen. Laws ch. 269, 10G. The court of appeals affirmed. The Supreme Judicial Court vacated the judgment of conviction under Mass. Gen. Laws ch. 269, 10(n) and vacated so much of the judgment of conviction as pertains to the predicate offense of assault and battery by means of a dangerous weapon as to the ACCA charge, holding (1) the evidence was insufficient to support the conviction of carrying a loaded firearm; and (2) for Defendant's conviction of assault and battery by means of a dangerous weapon to count as a predicate offense for purposes of the ACCA the Commonwealth must use the modified categorical approach to prove Defendant was convicted of such a crime. |
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| Commonwealth v. Boger |
| Court: Massachusetts Supreme Judicial Court Docket: SJC-12878 Opinion Date: December 10, 2020 Judge: Budd Areas of Law: Criminal Law |
| The Supreme Judicial Court vacated Defendant's conviction for committing the crime of distribution of cocaine within one hundred feet of a public park in connection with a sale of the controlled substance to an undercover officer, holding that the Commonwealth failed to prove that the area in question was a "public park" for purposes of Mass. Gen. Laws ch. 94C, 32J. On appeal, Defendant argued that the Commonwealth provided insufficient evidence that the park at issue was public within the meaning of the statute. The Supreme Judicial Court agreed, holding that the section 32J conviction could not stand because there was no evidence that Defendant was within one hundred feet of an area owned or maintained by a governmental entity. |
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| Commonwealth v. Nash |
| Court: Massachusetts Supreme Judicial Court Dockets: SJC-12976, SJC-12990 Opinion Date: December 14, 2020 Judge: Cypher Areas of Law: Criminal Law |
| In these two cases in which Defendants sought stays of execution of their sentences pending appeal, the Supreme Judicial Court provided additional guidance as to how judges who are faced with requests for stays should take into account the COVID-19 pandemic as a factor in determining whether a stay is appropriate in any given case. In Daniel Nash's case, the trial judge granted a stay, which a single justice of the Appeals Court vacated. In Joseph Elibert's case, the trial court granted a stay but later revoked it, and a single justice of the Appeals Court affirmed. The Supreme Judicial Court reversed the judgments of the Appeals Court single justice in each case after addressing the procedural issues concerning these cases, holding that both defendants were entitled to a stay. |
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| Commonwealth v. Pierre |
| Court: Massachusetts Supreme Judicial Court Docket: SJC-12154 Opinion Date: December 15, 2020 Judge: Gaziano Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Judicial Court affirmed Defendant's convictions of three counts of murder in the first degree, one count of armed assault with intent to murder, and unlawful possession of a firearm and declined to order a new trial or reduce the degrees of guilt under Mass. Gen. Laws ch. 278, 33E, holding that there was no prejudicial error in the proceedings below. Specifically, the Supreme Judicial Court held (1) the judge did not abuse his discretion in admitting prior bad act evidence or in allowing the substantive use of prior inconsistent grand jury testimony by one trial witness; (2) there was no substantial likelihood of a miscarriage of justice from trial counsel's decision not to attempt to impeach one witness with his prior grand jury testimony; and (3) impermissible comments made by the prosecutor during cross-examination of Defendant did not create a substantial likelihood of a miscarriage of justice or constitute impermissible burden shifting. |
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| Commonwealth v. Ramos-Cabrera |
| Court: Massachusetts Supreme Judicial Court Docket: SJC-12900 Opinion Date: December 10, 2020 Judge: Budd Areas of Law: Criminal Law |
| The Supreme Judicial Court affirmed Defendant's convictions of distribution of a class A controlled substance and committing the crime within one hundred feet of a public park, holding that Defendant's arguments on appeal were unavailing. Defendant appealed from the denial of his motion for a required finding of not guilty, claiming, among other things, that there was insufficient evidence proving that the area was a public park within the meaning of Mass. Gen. Laws ch. 94C, 32J. The Supreme Judicial Court affirmed, holding (1) the evidence presented was sufficient for the jury to find that the park at issue was a park within the meaning of section 32J; and (2) although the judge's instructions did not include a definition of a "public park," the instructions did not result in a substantial risk of a miscarriage of justice. |
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| Desrosiers v. The Governor |
| Court: Massachusetts Supreme Judicial Court Docket: SJC-12983 Opinion Date: December 10, 2020 Judge: Cypher Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Judicial Court held that the Civil Defense Act (CDA), Mass. Gen. Laws ch. 17, 2A, provided the Governor with the authority for his March 10, 2020 declaration of a state of emergency in response to the COVID-19 pandemic and for his issuance of the emergency orders and that the emergency orders did not violate article 30 of the Massachusetts Declaration of Rights or Plaintiffs' federal or state constitutional rights to procedural and substantive due process or free assembly. Plaintiffs brought this complaint seeking declaratory judgment and injunctive relief, challenging the Governor's declaration of a state of emergency and the emergency orders placing restrictions on daily activities as unauthorized and unconstitutional. The Supreme Judicial Court denied relief, holding that Plaintiffs' claims were unavailing and that the emergency orders were authorized and constitutional. |
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| Massachusetts Coalition for Homeless v. City of Fall River |
| Court: Massachusetts Supreme Judicial Court Docket: SJC-12914 Opinion Date: December 15, 2020 Judge: Barbara A. Lenk Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Judicial Court held that Mass. Gen. Laws ch. 85, 17A, sometimes referred to as the panhandling statute, is unconstitutional on its face under the First Amendment to the federal constitution and article 16 of the Massachusetts Declaration of Rights, as amended, because the statute is a content-based regulation of protected speech in a public forum that cannot withstand strict scrutiny. Under the statute, a person who signals, stops, or accosts a motor vehicle or its occupants on a public way if undertaken for the purpose of panhandling, is subject to criminal prosecution or a fine. The statute, however, exempts the same conduct if undertaken for the purpose of selling newspapers or raising money for a nonprofit organization. Plaintiffs commenced this action asserting that the statute is unconstitutional on its face under the First Amendment and article 16. The Supreme Judicial Court held that Mass. Gen. Laws ch. 85, 17A is unconstitutional on its face under the First Amendment and article 16 because it is both over- and underinclusive with respect to the purpose it is intended to serve, is not narrowly tailored, and cannot withstand strict scrutiny. |
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| Havard v. Mississippi |
| Court: Supreme Court of Mississippi Citation: 2018-CA-01709-SCT Opinion Date: December 17, 2020 Judge: Josiah D. Coleman Areas of Law: Constitutional Law, Criminal Law |
| Jeffrey Keith Havard was convicted by jury and sentenced to death for capital murder. The Mississippi Supreme Court granted Havard’s third petition for post-conviction relief and allowed him to proceed in the trial court based on his claim that newly discovered evidence pertaining to shaken-baby syndrome required a new trial and vacating his death sentence. After an evidentiary hearing, the trial judge determined that Havard failed to prove by a preponderance of the evidence that new evidence existed that would have caused a different result as to his guilt or innocence. But the trial judge did vacate Havard’s death sentence and resentenced him to life without parole. Havard appealed the trial judge’s denial of a new trial. Finding no reversible error, the Mississippi Supreme Court affirmed. |
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| State v. Dillingham |
| Court: Montana Supreme Court Citation: 2020 MT 310 Opinion Date: December 15, 2020 Judge: Mike McGrath Areas of Law: Criminal Law |
| The Supreme Court affirmed Defendant's conviction of aggravated sexual intercourse without consent, holding that the district court did not abuse its discretion in failing to find Defendant's concerns of ineffective assistance of counsel "seemingly substantial" or by declining to grant a trial continuance. On appeal, Defendant argued that the district court abused its discretion by (1) denying his request for a continuance of the jury trial, and (2) failing to open a formal inquiry into the effectiveness of counsel following Defendant's pretrial expressions of lack of confidence. The Supreme Court affirmed, holding (1) the district court did not abuse its discretion by declining to grant Defendant's request for a continuance before trial; and (2) even if Defendant's lack of confidence did constitute a request for substitute counsel, the district court's response was an adequate initial inquiry to determine whether Defendant's concerns were "seemingly substantial." |
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| State v. Jensen |
| Court: Montana Supreme Court Citation: 2020 MT 309 Opinion Date: December 15, 2020 Judge: Gustafson Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed the order of the district court denying Defendant's motion to dismiss the charge of vehicular homicide while under the influence, holding that Mont. Code Ann. 61-8-411 does not violate either the substantive due process or equal protection guarantees of the state and federal constitutions. Defendant filed a motion to dismiss the charges, arguing that section 61-8-411 was facially unconstitutional as a violation of his substantive due process rights. The district court denied the motion to dismiss. On appeal, Defendant argued that the legislature could have made a more scientifically based policy choice to keep drivers impaired by THC off the road and that the statute unconstitutionally creates classifications. The Supreme Court affirmed, holding that Mont. Code Ann. 61-8-411 is rationally related to the government's compelling interest in keeping drug-impaired drivers off the road. |
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| State v. Blocher |
| Court: Nebraska Supreme Court Citation: 307 Neb. 874 Opinion Date: December 4, 2020 Judge: Michael G. Heavican Areas of Law: Criminal Law |
| The Supreme Court affirmed the decision of the district court denying Defendant's motion for discharge, holding that the time Defendant spent incarcerated in Douglas County was properly attributable to Defendant for purposes of her speedy trial rights. Defendant was arrested in Lancaster County and charged with possession of methamphetamine. One day before her pretrial docket call, Defendant was arrested for shoplifting in Douglas County. Defendant was arrested on a bench warrant by authorities at Douglas County Department of Corrections but was not returned to Lancaster County. After Defendant was convicted and served her sentence in Douglas County for the shoplifting charge, Defendant was transported to Lancaster County. Defendant filed a motion for absolute charge, which the Lancaster County District Court denied. The Supreme Court affirmed, holding that the Lancaster County District Court did not err in excluding from Defendant's speedy trial calculation the time she spent incarcerated while awaiting charges in Douglas County and while serving her sentence. |
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| State v. Clausen |
| Court: Nebraska Supreme Court Citation: 307 Neb. 968 Opinion Date: December 11, 2020 Judge: William B. Cassel Areas of Law: Criminal Law |
| The Supreme Court affirmed Defendant's sentences imposed pursuant to jury convictions related to a prison escape, holding that Defendant's claims lacked merit. After a jury trial, Defendant was convicted of escape, theft by unlawful taking, and operating a motor vehicle to avoid arrest. The trial court found Defendant to be a habitual criminal and sentenced him to a combined consecutive term of eighty to 140 years' imprisonment. Defendant appealed, assigning fourteen errors in his appeal. The Supreme Court affirmed, holding that Defendant failed to show that the trial court erred or abused its discretion in its rulings. |
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| Banka v. State |
| Court: Supreme Court of Nevada Citation: 136 Nev. Adv. Op. No. 81 Opinion Date: December 10, 2020 Judge: Stiglich Areas of Law: Criminal Law |
| The Supreme Court reversed Defendant's conviction of driving and/or being in actual physical control of a motor vehicle while under the influence of an intoxicating liquor or alcohol resulting in substantial bodily harm entered upon an Alford plea, holding that the district court abused its discretion by denying Defendant's presentence motion to withdraw his guilty plea. When he entered his Alford plea, Defendant was informed that he faced a mandatory fine of up to $5,000 but was not informed that the fine would be at least $2,000. Defendant filed a presentence motion to withdraw his guilty plea, arguing that he did not understand the consequences of his plea because he did not know the mandatory minimum fine for the offense was $2,000. The district court denied the motion. The Supreme Court reversed, holding (1) because a fine is a form of punishment, a defendant must be informed of any mandatory minimum fine in order to be fully informed of the direct consequences of a plea; and (2) the district court abused its discretion in denying Defendant's motion to withdraw his guilty plea. |
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| Randolph v. State |
| Court: Supreme Court of Nevada Citation: 136 Nev. Adv. Op. No. 78 Opinion Date: December 10, 2020 Judge: Silver Areas of Law: Criminal Law |
| The Supreme Court reversed Defendant's conviction of conspiring with a hitman to have his sixth wife murdered during a staged burglary and then murdering the hitman, holding that the district court abused its discretion in admitting certain prior bad act evidence. At issue was the admission of events surrounding the death of Defendant's second wife. On appeal, Defendant argued that the evidence was inadmissible under Nev. Rev. Stat. 48.045(2). The Supreme Court reversed, holding (1) the danger of unfair prejudice substantially outweighed any probative value of the disputed evidence, and the district court abused its discretion by allowing its admission; and (2) the error in admitting the prior bad act evidence was not harmless. The Court remanded the matter for a new trial. |
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| People v. Williams |
| Court: New York Court of Appeals Citation: 2020 NY Slip Op 07664 Opinion Date: December 17, 2020 Judge: Stein Areas of Law: Criminal Law |
| The Court of Appeals affirmed Defendant's conviction of unlawfully possessing a firearm, holding that the lower courts properly concluded that Defendant was not entitled to a jury charge regarding temporary and lawful possession. On Defendant's appeal, the Appellate Division affirmed, concluding that there was no reasonable view of the evidence under which Defendant was entitled to a temporary and lawful possession charge. The Court of Appeals affirmed, holding (1) because there was no reasonable view of the evidence upon which a jury could find that Defendant's initial possession of the firearm was temporary and lawful, Defendant was not entitled to a jury charge on that defense; and (2) Defendant's challenge to the denial of his motion to set aside the verdict was unavailing. |
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| People v J.L. |
| Court: New York Court of Appeals Citation: 2020 NY Slip Op 07663 Opinion Date: December 17, 2020 Judge: Jenny Rivera Areas of Law: Criminal Law |
| The Court of Appeals reversed the order of the Appellate Division insofar as appealed from and ordered a new trial on the count of criminal possession of a weapon in the third degree, holding that the jury should have been instructed regarding the definition of voluntary possession, and the failure to so charge was not harmless. Defendant was charged with criminal possession of a weapon and unlawful possession of marihuana. Based on the trial evidence, Defendant requested that the jury be charged on voluntary possession of the gun. The court denied the requested charge. The jury convicted Defendant of third-degree possession of the gun and unlawful possession of marihuana. The Appellate Division modified and affirmed, summarily rejecting Defendant's challenge to the jury instructions. The Court of Appeals reversed Defendant's conviction of third-degree possession of a weapon, holding that a reasonable juror could have concluded that Defendant had constructive, knowing, but not voluntary, possession of the gun in question for a brief moment, and therefore, the failure to instruct the jury regarding the definition of voluntary possession was not harmless. |
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| Atkins v. North Dakota |
| Court: North Dakota Supreme Court Citation: 2020 ND 316 Opinion Date: December 17, 2020 Judge: Jon J. Jensen Areas of Law: Constitutional Law, Criminal Law |
| Cody Atkins appealed a district court order denying his motion to vacate a criminal judgment and withdraw his plea of guilty. In June 2015, Atkins pled guilty to violating an order prohibiting contact, a class A misdemeanor. Atkins did not appeal the criminal judgment entered following his guilty plea. On appeal, Atkins’ counsel sought permission to file an “Anders” brief or, in the alternative, permission to withdraw as Atkins’ counsel. The North Dakota Supreme Court denied the request to file an Anders brief, granted the motion to withdraw as Atkins’ counsel, and ordered a schedule for additional filings. The Court has held previously that the procedures set forth in "Anders" did not apply to North Dakota law because, under the state constitution and statutes, an appeal was a matter of right which eliminated the need for an Anders proceeding. In light of the representation of Atkins’ defense counsel that the appeal lacked merit and Atkins’ own request for new counsel, the Court granted the request to withdraw as counsel. Atkins was given time to submit a request for the appointment of appellate counsel. |
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| City of Fargo v. Hofer |
| Court: North Dakota Supreme Court Citation: 2020 ND 299 Opinion Date: December 17, 2020 Judge: Jerod E. Tufte Areas of Law: Constitutional Law, Criminal Law |
| Simon Hofer appealed after he conditionally pled guilty to driving under the influence. He argued the district court was required to suppress the results of the urine test because the implied consent advisory was not substantively complete and the search warrant did not cure the defect in the advisory. The North Dakota Supreme Court reversed and remanded, concluding the implied consent advisory given in this case did not convey all substantive information required by statute, and as a result the test result was not admissible in a criminal proceeding. |
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| Curtiss v. North Dakota |
| Court: North Dakota Supreme Court Citation: 2020 ND 303 Opinion Date: December 17, 2020 Judge: Jon J. Jensen Areas of Law: Civil Procedure, Criminal Law |
| Spencer Curtiss appealed the dismissal of his declaratory judgment action seeking relief from a criminal judgment and the district court’s subsequent order denying his motion for reconsideration. In 2011, Curtiss was convicted and sentenced to 25 years of imprisonment with all but 15 years suspended for Gross Sexual Imposition (GSI) with a minor. Curtiss has previously initiated a direct appeal of his conviction in the criminal case, filed two petitions for post-conviction relief under the Uniform Postconviction Procedure Act, moved for relief under N.D.R.Civ.P. 60, and moved to amend his probation. In February 2020, Curtiss filed a complaint in district court seeking a declaratory judgment, a vacation of the sex offender registration requirements of his sentence, and a removal of his probation period. Curtiss asserted a variety of claims challenging the underlying GSI conviction. The court dismissed the action under N.D.R.Civ.P. 12(b)(6) after finding the current action to be an impermissible collateral attack on the criminal judgment. Curtiss subsequently filed a motion for reconsideration of the dismissal of his action. The court denied the motion. On appeal, Curtiss argued the district court erred in dismissing his action and denying his motion to reconsider. Finding no reversible error, the North Dakota Supreme Court affirmed dismissal. |
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| Everett v. North Dakota |
| Court: North Dakota Supreme Court Citation: 2020 ND 304 Opinion Date: December 17, 2020 Judge: Jerod E. Tufte Areas of Law: Constitutional Law, Criminal Law |
| In 2007 a jury found Timler Everett guilty of gross sexual imposition. Everett appealed a district court order denying his petition for postconviction relief based on allegedly newly discovered evidence. Everett argued the trial court erred in denying his petition and dismissing his related motions. The North Dakota Supreme Court treated the district court’s current order as denying Everett leave to file additional motions. Orders denying leave to file were not appealable. Therefore, the Court dismissed Everett’s appeal. |
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| Lindstaedt v. George |
| Court: North Dakota Supreme Court Citation: 2020 ND 309 Opinion Date: December 17, 2020 Judge: Jerod E. Tufte Areas of Law: Criminal Law, Family Law |
| Terry George appealed a domestic violence protection order entered against him, claiming the district court erred, without properly explaining the factual basis for its decision, in finding that a preponderance of the evidence supported that actual or imminent domestic violence had or would occur. Nicole Lindstaedt and George dated for approximately four years. They lived together and had a child in common. In February 2020, Lindstaedt petitioned for a domestic violence protection order against George, alleging he choked her, punched her, threatened to kill her, and forced her to have sex with him. After a hearing, the district court found George had committed domestic violence and issued a protection order against him. The order prohibited George from having contact with Lindstaedt for two years. The North Dakota Supreme Court concluded the district court’s finding of domestic violence was not induced by an erroneous view of the law, nor was the Court left with a definite and firm conviction a mistake has been made. The Supreme Court's review of the record showed Lindstaedt presented sufficient evidence for the district court to find domestic violence by recent physical harm and nonconsensual sex. The Supreme Court therefore affirmed the domestic violence protection order. |
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| North Dakota v. Bolme |
| Court: North Dakota Supreme Court Citation: 2020 ND 255 Opinion Date: December 17, 2020 Judge: Jon J. Jensen Areas of Law: Constitutional Law, Criminal Law |
| Trevor Bolme appealed after entering a conditional guilty plea to possession of methamphetamine and unlawful possession of drug paraphernalia. Bolme argued the district court erred in denying his motion to suppress because law enforcement lacked reasonable suspicion to initiate a traffic stop based on a cracked windshield, and lacked probable cause to search his vehicle based on the odor of marijuana. After review, the North Dakota Supreme Court concluded law enforcement had reasonable and articulable suspicion to stop and probable cause to conduct the search. Therefore, the Court affirmed the criminal judgment of the district court. |
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| North Dakota v. Foote |
| Court: North Dakota Supreme Court Citation: 2020 ND 313 Opinion Date: December 17, 2020 Judge: Jerod E. Tufte Areas of Law: Criminal Law |
| Stephanie Foote appealed an order denying her motion to suppress evidence and from the criminal judgment entered after she conditionally pled guilty to a charge of actual physical control (APC) of a motor vehicle while under the influence of alcohol. On appeal, Foote argued the district court erred in determining that she was not unconstitutionally seized and, thus, her motion to suppress should have been granted. Finding no reversible error, the North Dakota Supreme Court affirmed the judgment. |
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| North Dakota v. Hirschkorn |
| Court: North Dakota Supreme Court Citation: 2020 ND 315 Opinion Date: December 17, 2020 Judge: Jerod E. Tufte Areas of Law: Constitutional Law, Criminal Law |
| John Hirschkorn was convicted by jury of aggravated assault and driving under the influence of alcohol. The charges arose from an altercation in a McLean County, North Dakota bar that was captured on video. Hirschkorn was involved in a bar fight with another individual, resulting in Hirschkorn striking that individual in the face with a beer bottle and causing a serious cut to the individual’s face. Hirschkorn also sustained several injuries, including a blow to his head. After the fight concluded, Hirschkorn left the bar and drove away from the scene. Law enforcement officers arrived at the bar, and the individual was taken to the hospital. Officers subsequently located Hirschkorn driving his vehicle. He was stopped and ultimately arrested for driving under the influence. Because Hirschkorn was taken to the hospital to be medically cleared before testing, it was more than two hours after he had last driven that an Intoxilyzer test established his blood alcohol concentration to be 0.139 percent, over the legal limit. Before jury selection, Hirschkorn made a motion in limine requesting the court to exclude a video from the bar showing at least a portion of the fight. The court subsequently received the video into evidence at trial over his objection. The court also allowed limited testimony at trial from a neuropsychologist called as an expert witness by Hirschkorn to discuss symptoms of traumatic brain injury, to show Hirschkorn had sustained a brain injury caused by the other individual in the altercation, and to support the reasonableness of his claim of self-defense. Hirschkorn argued on appeal the district court should have excluded the exhibit including bar videos and the court should not have limited the neuropsychologist’s expert testimony. Finding no abuse of discretion or other reversible error, the North Dakota Supreme Court affirmed the district court. |
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| North Dakota v. Rodriguez |
| Court: North Dakota Supreme Court Citation: 2020 ND 308 Opinion Date: December 17, 2020 Judge: Lisa K. Fair McEvers Areas of Law: Constitutional Law, Criminal Law |
| Rolando Rodriguez was convicted by jury of gross sexual imposition, burglary, terrorizing, and domestic violence assault. On appeal, Rodriguez argued: (1) he did not knowingly, intelligently, and voluntarily waive his right to counsel; (2) insufficient evidence existed to support his guilty verdicts; and (3) the district court erred when it failed to use a special verdict for the jury to determine whether Rodriguez used a dangerous weapon in commission of the terrorizing offense. After review, the North Dakota Supreme Court concluded Rodriguez knowingly, intelligently, and voluntarily waived his right to counsel and he failed to preserve his arguments on sufficiency of the evidence and the necessity of a special verdict form. The Court, therefore, affirmed the judgment. |
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| North Dakota v. Sackenreuter |
| Court: North Dakota Supreme Court Citation: 2020 ND 312 Opinion Date: December 17, 2020 Judge: Daniel J. Crothers Areas of Law: Constitutional Law, Criminal Law |
| Dustin Sackenreuter appealed after his conditional guilty plea to refusing to take a chemical breath test. He argued that the implied consent advisory he received was insufficient under N.D.C.C. 39-08-01(1)(f), that subsection (1)(f) was unconstitutionally void for vagueness, that subsection (1)(f) was ambiguous and should be interpreted in his favor, and that his special jury instructions should not have been rejected. Finding no reversible error, the North Dakota Supreme Court affirmed. |
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| State ex rel. Summers v. Fox |
| Court: Supreme Court of Ohio Citation: 2020-Ohio-5585 Opinion Date: December 10, 2020 Judge: Per Curiam Areas of Law: Criminal Law |
| The Supreme Court granted in part and denied in part a writ of mandamus sought by Charles Summers to compel the production of public records by Mercer County Prosecuting Attorney Matthew Fox and Mercer County Sheriff Jeff Grey, holding that Summers was entitled to a writ of mandamus as to certain requests. Summers pleaded guilty to several counts of sexual battery in violation of Ohio Rev. Code 2907.03. In his public-records request to Mercer County Prosecutor's Office Summers requested several items relating to his criminal prosecution. Summers then requested from the Mercer County Sheriff several other items related to his criminal case. The county denied Summers's requests. Summers then commenced this action. The Supreme Court granted a writ in part, holding that Summers demonstrated by clear and convincing evidence that he had a clear legal right to some of the requested relief, and the county had a clear legal duty to provide that relief. |
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| State v. Dent |
| Court: Supreme Court of Ohio Citation: 2020-Ohio-6670 Opinion Date: December 16, 2020 Judge: Maureen O'Connor Areas of Law: Criminal Law |
| In these consolidated appeals the Supreme Court reversed the judgments of the court of appeals, holding that the State presented sufficient evidence to support the convictions of Alvin Dent and William Walker (collectively, Defendants) for the felony offense of engaging in a pattern of corrupt activity under Ohio Rev. Code 2923.32. After a joint jury trial, Defendants were both found guilty of engaging in a pattern of corrupt activity, possessing cocaine, illegally manufacturing drugs, and trafficking in cocaine. The court of appeals reversed each of Defendants' convictions for engaging in a pattern of corrupt activity, holding that there was insufficient evidence to support those convictions. The Supreme Court reversed, holding that a reasonable juror could have found beyond a reasonable doubt that Defendants participated in incidents of illegal activity that were not isolated and established a pattern of corrupt activity. |
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| State v. Gideon |
| Court: Supreme Court of Ohio Citation: 2020-Ohio-5635 Opinion Date: December 15, 2020 Judge: Stewart Areas of Law: Criminal Law, Professional Malpractice & Ethics |
| The Supreme Court reversed the decision of the court of appeals concluding that statements made by a medical doctor during a medical board investigation were inadmissible in a subsequent criminal prosecution of that doctor, holding that the trial court properly admitted incriminating answers given by the doctor during the investigation. Specifically, the Supreme Court held (1) a medical license is a property right, and the threatened loss of the license is a form of coercion that can compromise the defendant's Fifth Amendment privilege against self-incrimination; (2) in order for coercion to be sufficient to warrant the suppression of statements made during a medical board investigative review, the coercion must be both subjectively believed and objectively reasonable; and (3) competent, credible evidence supported the trial court's factual finding that the doctor did not objectively believe that a refusal truthfully to answer questions posed by the medical board investigator could lead to the loss of the doctor's medical license. |
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| State v. Grate |
| Court: Supreme Court of Ohio Citation: 2020-Ohio-5584 Opinion Date: December 10, 2020 Judge: Judith L. French Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed Defendant's two aggravated murder convictions and death sentences, holding that no reversible error occurred in the proceedings below. Specifically, the Supreme Court held (1) defense counsel were not ineffective for failing to request a change of venue or in filing a joint motion for a gag order; (2) defense counsel were not ineffective for withdrawing Defendant's plea of not guilty by reason of insanity in Defendant's absence or in failing to request a continuance to obtain additional neuroimaging; (3) defense counsel were deficient for failing to object to certain evidence, but the deficient performance did not result in prejudice; (4) defense counsel made an inappropriate comment during mitigation-phase closing argument, but the comment did not prejudice Defendant; (5) Defendant's remaining ineffective assistance of counsel claims were without merit; (6) the trial court did not err in replacing one juror with an alternate juror; and (7) Defendant's sentences were not unlawful. |
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| State v. Groce |
| Court: Supreme Court of Ohio Citation: 2020-Ohio-6671 Opinion Date: December 16, 2020 Judge: Maureen O'Connor Areas of Law: Criminal Law |
| The Supreme Court reversed the judgment of the court of appeals reversing Defendant's conviction for engaging in a pattern of corrupt activity, in violation of Ohio Rev. Code 2923.32, holding that the State presented sufficient evidence to support Defendant's conviction. Defendant and two codefendants were each found guilty of engaging in a pattern of corrupt activity, possessing cocaine, illegally manufacturing drugs, and trafficking in cocaine. Defendant appealed, arguing that insufficient evidence supported his conviction for engaging in a pattern of corrupt activity. The court of appeals agreed and reversed the conviction. The Supreme Court reversed, holding that a reasonable juror could have found beyond a reasonable doubt that Defendant participated in incidents of illegal activity that were not isolated and established a pattern of corrupt activity. |
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| State v. Rue |
| Court: Supreme Court of Ohio Citation: 2020-Ohio-6706 Opinion Date: December 17, 2020 Judge: Donnelly Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the court of appeals reversing the judgment of the trial court terminating Defendant's community control and sentencing him to a two-year term of incarceration, holding that the trial court lacked the authority to conduct these community-control-revocation proceedings. On June 5, 2017, Defendant's community control sentence was due to expire. On September 12, 2018, the trial court revoked Defendant's community control and ordered him to serve a two-year prison term. The court of appeals reversed, holding that the trial court did not have the authority to conduct the revocation proceedings because notice of the violations and commencement of the proceedings did not occur before the expiration of Defendant's community control term. The Supreme Court affirmed, holding that the trial court lacked the authority to revoke Defendant's community control and sentence him to a term of imprisonment because the revocation proceedings were not commenced before the expiration of Defendant's community control term. |
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| State v. Townsend |
| Court: Supreme Court of Ohio Citation: 2020-Ohio-5586 Opinion Date: December 10, 2020 Judge: Donnelly Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed the judgment of the court of appeals vacating certain sexually-violent-predator specifications that had been applied to Defendant's sentence, holding that, as applied, the specifications violated the Ex Post Facto Clause of the United States Constitution. Defendant was found guilty of numerous counts of rape, kidnapping, and related crimes involving three victims, including sexually-violent-predator specifications. The court of appeals upheld the convictions on all assignments of error except those challenging Defendant's convictions on the sexually-violent-predator specifications that attached to the crimes that Defendant committed before April 29, 2005. The court vacated the convictions on those specifications as violating the Ex Post Facto Clause. The Supreme Court affirmed, holding that the application of the current version of Ohio Rev. Code 2971.01(H)(1) to Defendant for his crimes in 2003 and 2005 violated the Ex Post Facto Clause. |
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| State v. Haffner |
| Court: Rhode Island Supreme Court Docket: 18-21 Opinion Date: December 17, 2020 Judge: Francis X. Flaherty Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the superior court finding Defendant guilty of assault with a dangerous weapon - a shod foot - and driving while intoxicated, holding that the trial justice did not err when she instructed the jury about the concept of aiding and abetting and that Defendant's Frye hearing was not conducted in error. On appeal, Defendant argued that the trial justice erred in charging the jury that it could convict him as either a principal or as an aider and abetter and that the trial justice erred during the Frye hearing because she failed to put him on notice that he was exposed to criminal liability for aiding and abetting. The Supreme Court affirmed, holding (1) an instruction on aiding and abetting was justified by the evidence; and (2) the trial justice did not err in the manner in which she proceeded during the Frye hearing. |
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| State v. Jones |
| Court: Rhode Island Supreme Court Docket: 19-7 Opinion Date: December 14, 2020 Judge: Maureen McKenna Goldberg Areas of Law: Criminal Law |
| The Supreme Court affirmed the judgment of the superior court convicting Defendant of two counts of felony assault, holding that the trial justice did not abuse his discretion by permitting the state to impeach Defendant with a prior felony assault conviction. Defendant's first jury trial ended in a mistrial after a hung jury. After a second criminal jury trial before a different trial justice, the jury found Defendant guilty of two counts of assault with a dangerous weapon. On appeal, Defendant argued that the second trial justice abused his discretion by deviating from the law of the case doctrine and allowing a prior felony assault conviction to be introduced for impeachment purposes. The Supreme Court affirmed, holding that, under the circumstances, the trial justice did not abuse his discretion by allowing the State to impeach Defendant's credibility with his prior felony assault conviction. |
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| South Carolina v. Reyes |
| Court: South Carolina Supreme Court Docket: 28004 Opinion Date: December 16, 2020 Judge: James Areas of Law: Constitutional Law, Criminal Law |
| Jose Reyes Reyes was convicted by a jury of first-degree criminal sexual conduct with a minor. The court of appeals affirmed the conviction. The South Carolina Supreme Court granted Reyes's petition for a writ of certiorari to address two questions: (1) whether the trial court improperly ruled in the jury's presence that the child victim (Minor) was competent to testify; and (2) whether the solicitor improperly bolstered Minor's credibility by phrasing questions to Minor in the first person. Finding no reversible error, the Supreme Court affirmed the court of appeals' judgment. |
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| State v. Babcock |
| Court: South Dakota Supreme Court Citation: 2020 S.D. 71 Opinion Date: December 16, 2020 Judge: Kern Areas of Law: Civil Rights, Constitutional Law, Criminal Law |
| The Supreme Court affirmed Defendant's conviction of two counts of aggravated assault and two counts of simple assault for attacking his former significant other, Rosa Sosa, holding that the circuit court did not err in excluding evidence of Sosa's drug use and that Defendant was not entitled to relief on his double jeopardy claims. Specifically, the Supreme Court held (1) the circuit court did not err in granting the State's motion in limine to exclude evidence of the victim's methamphetamine use; and (2) Defendant's convictions for multiple counts of assault did not subject him to double jeopardy. |
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| Day v. Texas |
| Court: Texas Court of Criminal Appeals Docket: PD-0955-19 Opinion Date: December 16, 2020 Judge: Newell Areas of Law: Constitutional Law, Criminal Law |
| Appellant Jonathan Day fled after being told that he was under arrest and that there was an active arrest warrant out for him. He was charged with and convicted of evading arrest or detention. The court of appeals found the evidence insufficient to prove that the attempted arrest or detention was “lawful.” It held that while Appellant’s initial detention might have been justified, his continued detention, during which Appellant fled after police discovered an outstanding arrest warrant for him, was not. The court of appeals reversed the conviction and ordered an acquittal. After review, the Texas Court of Criminal Appeals reversed the court of appeals' judgment because a jury could have rationally found the officer’s attempted arrest or detention was lawful in light of the outstanding warrant. |
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