Criminal Case Law & Legislative Update

Transcription

1 Criminal Case Law & Legislative Update Deputy Prosecuting Attorney DV Symposium September 2017 OVERVIEW Search & Seizure Charging Evidence Sentencing Legislative Changes Proposed ER 413 September 7 & 8, 2017 Page 1 of 9

2 Protective Sweep Allows police to conduct a warrantless search of a home if: 1. Suspect arrested in home allows police to check closets & other spaces immediately adjoining place of arrest, OR 2. Officers have [R] belief based on specific & articulable facts that area harbors an indv posing a danger to investigating officers Blockman & Chambers Review granted in Blockman (argued 11/14/17) Inadvertent Recordings & WA s Privacy Act Smith argued before WA Supreme Court 6/8/17 Was the recorded VM a private conversation? YES VM Inadmissible Att Murder 2 conviction rev d September 7 & 8, 2017 Page 2 of 9

3 CHARGING Holcomb Holding When charging Interfering w/dv reporting, the Info must state the specific DV crime Def prevented V from reporting Convict Dismissed w/o prejudice EVIDENTIARY ISSUES Streepy 2 issues 1. Confrontation Clause Did admitting the 7 yo s statements violate Def s Rt to Confrontation? NO September 7 & 8, 2017 Page 3 of 9

4 2. V s immigration status Did trial court violate Def s Rt to Confronation when it prohibited Def from cross examining V about her immigration status? NO ER 404(b) Woods Did TC err by admitting past prostitution evidence? Was Def counsel ineffective for failing to object? NO September 7 & 8, 2017 Page 4 of 9

5 True Threat Trey M WA Supreme Court Did the USSC s decision in Elonis require WA to change its construction of the harassment statute from an obj person std (aka true threat ) to a subjective intent std? NO UNIT OF PROSECUTION Computer Trespass (Novick) Each unauth access Recording Private Communications (Novick) Each recording w/o consent September 7 & 8, 2017 Page 5 of 9

6 Felony Harassment (France) Each threat where threats involve Differ types of bodily harm and Made at different times & places Promoting Prostit 2 nd Degree (Barbee) Each person promoted SENTENCING No Contact Orders 1. Expiration of misdemeanor no contact orders (Granath) Does a post conviction, RCW NCO issued by a Dist Ct expire when the Def s sentence terminates? YES September 7 & 8, 2017 Page 6 of 9

7 What does Granath mean? Does not impact NCOs issued as part of felony conviction Limited to NCOs imposed as part of misdemeanor sentence Can no longer Impose CFTS and close case b/c NCO will terminate Impose 364 day sent without suspending other terms (LFOs) and keeping case open for probation monitoring Impose 12 mos probation/supervision and 24 mos NCO Think carefully about how you structure your pleas/sent Keep cases open e.g. prob/supervision, NCLV, fines Advise Vs about civil protection order Stack misdemeanor sent to run consecutively Plea to (1 or 2) Gross Misd => Max term prob is 2 yrs Plea to (3) Gross Misd => Max term prob is 3 yrs Plea to (4) Gross Misd => Max term prob is 4 yrs (based on Parent, 164 Wn. App. 210 and RCW (1)(a)) September 7 & 8, 2017 Page 7 of 9

8 2. Fundamental Rt to Parent (Torres) NCO must be sensitively imposed & narrowly tailored TC needs to make a good record 3. Exceptional no contact orders (Weller) OK to stack max terms LEGISLATIVE UPDATE Juvenile DV offenders A4 DV New Class C Felony DNA testing required for A4 DV Scoring doubler Declined Firearm Transactions September 7 & 8, 2017 Page 8 of 9

9 [Proposed] ER 413 Applies to criminal and civil cases Generally provides that party s or witness s immigration status is inadmissible Criminal immig status is inadmiss unless it is an essential fact to prove an element of, or defense to, crime charged Establishes procedure to admit evidence Comment period expires Friday, Sept. 15 September 7 & 8, 2017 Page 9 of 9