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Articles by Dale Chappell

New Mexico Supreme Court: Seriousness of Charged Crime Itself Not Sufficient to Deny Defendant Pretrial Release

by Dale Chappell

A court must not automatically consider any single factor to be dispositive when deciding whether to deny or grant pretrial release, but must consider several factors on the record to determine if an accused must be detained, the New Mexico Supreme Court held.

Mariah Ferry, having been charged with first-degree murder, was granted pretrial release after the court determined that, while the crimes were “gruesome and heinous,” that alone was not enough to keep Ferry in jail until trial. The State disagreed and appealed that decision to the New Mexico Supreme Court.

On appeal, the State argued that the district court erroneously concluded that the nature of the charges, “no matter how serious the crime,” are “never sufficient” to prove a defendant’s future dangerousness and thus denial of pretrial release. The Supreme Court observed that is one reasonable interpretation of the district court’s ruling. However, another reasonable interpretation is that it did consider the seriousness of the charges and nevertheless concluded that certain conditions of release could still reasonably protect the community.

New Mexico law provides that bail may be denied by a court if the State proves “by clear and convincing evidence” that the ...

Texas Court of Criminal Appeals Announces ‘Finality’ Under Sentence Enhancement Provision for Out-of-State Convictions Governed by Texas Law

by Dale Chappell

“Finality” of an out-of-state conviction to support an enhanced sentence depends on whether Texas State law would consider that prior conviction “final,” not on the particular state of conviction, the Court of Criminal Appeals of Texas held, finding a suspended sentence in California cannot serve as the basis for an enhanced sentence under the habitual-offender provision of Texas Penal Code § 12.42(d).

Jeremy Pue filed an application for writ of habeas corpus in the Court of Criminal Appeals, claiming that his enhanced sentence based on his prior California suspended sentence for a controlled substance offense was not “final” and thus cannot serve to enhance his sentence as a habitual offender. Because it exceeded the statutory maximum, absent the enhancement, Pue argued that his sentence was illegal. The Court agreed and vacated his sentence.

A claim that a sentence is illegal because it exceeds the statutory maximum for the offense is cognizable in a writ of habeas corpus and may be raised at any time, even if it was not raised on direct appeal. Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). Texas Penal Code § 12.42(d) provides that ...

Montana Supreme Court Holds Failure to Instruct Jury on State’s Burden of Proof is Plain Error

by Dale Chappell

It is plain error when a trial court fails to instruct the jury on the burden of proof for justifiable use of force and who carries that burden, even if the error was not preserved for review on appeal, the Supreme Court of Montana held December 19, 2017.

At his trial for misdemeanor assault, Lee Akers raised the affirmative defense that he had acted in self-defense during an altercation. A jury found Akers guilty of assault, and he appealed to the Montana Supreme Court.

On appeal, Akers raised for the first time that the trial court failed to instruct the jury that it was the State’s burden to prove beyond a reasonable doubt that he had not acted in self-defense, after he raised the affirmative defense of self-defense at trial. The State argued that since Akers did not raise the issue before, he failed to preserve it for review on appeal.

The Supreme Court disagreed, holding that the trial court’s failure to instruct the jury on the burden of proof was plain error and reviewable even if not preserved for appeal.

Generally, an appellate court does not address issues raised for the first time on appeal; however ...

Eleventh Circuit Holds Florida Drug Trafficking Statute Indivisible and Overbroad for Removal Under Immigration and Nationality Act

by Dale Chappell

In a major decision that may affect thousands with a prior Florida drug trafficking conviction, the U.S. Court of Appeals for the Eleventh Circuit held that Florida’s drug trafficking statute under Fla. Stat. § 893.135 is indivisible and overbroad, and therefore not a “match” with its federal counterpart under the Controlled Substance Act (“CSA”).

After Natalia Cintron, a native of Argentina, was convicted for “trafficking in illegal drugs” under Fla. Stat. § 893.135(1)(c), the U.S. Department of Homeland Security began proceedings to deport her. When an immigration judge ordered her deportation, finding that Cintron’s conviction under § 893.135(1)(c) was a “drug trafficking crime” under the Immigration and Nationality Act (“INA”), Cintron appealed to the Board of Immigrations Appeals (“BIA”). The BIA found that § 893.135(1)(c) was divisible and that Cintron’s conviction qualified as a drug trafficking crime, requiring her deportation. Cintron appealed to the Eleventh Circuit.

The INA requires deportation of an alien who is convicted of an “aggravated felony,” which includes a “drug trafficking crime,” defined under the federal CSA as manufacturing, distributing, or possessing with intent to do so. Mere possession ...

Washington Supreme Court: Nexus Between Property Searched and Probation Violation Required for Warrantless Search of Probationer’s Property

by Dale Chappell

Probationers have a limited, but constitutionally protected, privacy interest that does not permit community correction officers (“CCO”) to conduct open-ended property searches. Instead, the warrantless search must be connected to a suspected violation of a probation condition, the Supreme Court of Washington held, settling a circuit split within the state.

After Curtis Cornwell failed to report to his CCO, a warrant was issued for his arrest. Police stopped Cornwell’s vehicle based solely on the warrant, and a CCO was called to search his property. The CCO found drugs in a bag in the vehicle, and Cornwell was arrested on new charges for the drugs, as well as the probation violation.

Cornwell moved to suppress evidence obtained during the search of his car. The trial court denied his motion, stating that any subjective expectation of privacy was not “objectively reasonable” since he was on probation and thus entitled to a reduced expectation of privacy.

At the trial, the CCO testified that he searched the vehicle “to make sure there’s no further violations of his probation.” He further testified that “if there’s anything in the vehicle, whether it is in a suitcase, clothing, I’m going to go through ...

Missouri High Court Holds Checkbox-Style Search Warrant Constitutes an Unconstitutional General Warrant

by Dale Chappell

A search warrant with checkboxes generally describing the purpose of the warrant lacked particularity and probable cause and was an unconstitutional “general search warrant,” the Supreme Court of Missouri held. The Court affirmed the defendants’ motions to suppress all evidence seized in connection with the defective warrant.

After Jennifer Gauter and Phillip Douglass were accused of burglarizing a home, the Kansas City police applied for a search warrant to search their residence to check for the stolen items. The search warrant prepared by a detective had checkboxes that generally described the items to be seized and the reason for the warrant, including a checkbox authorizing officers to seize a “deceased human fetus or corpse, or part thereof.” The warrant also listed in detail some of the items that were allegedly stolen from the home. All of the boxes were checked, including the corpse box, and the judge approved the warrant.

Gauter and Douglass were charged with burglary in the second degree and felony stealing, after police recovered several of the items listed in the warrant, but not the corpse. The pair filed pretrial motions to suppress the evidence, arguing that the warrant was invalid because ...

Kansas Supreme Court: Judge’s ‘Thwarting’ of Defendant’s Right to Self-Representation was Structural Error Requiring Reversal of Convictions

by Dale Chappell

A defendant who “unequivocally” invoked his right to self-representation at trial and was denied that right when the judge ignored his requests got a new trial when the Supreme Court of Kansas held that it constituted a “structural error.”

Josiah Bunyard was “very active” in his defense. At a pretrial hearing before his trial was about to begin, he noticed his lawyer was overlooking something he believed to be crucial, so he spoke up. “You Honor, could I please be heard?” he interrupted. “Mr. Bunyard, you have appointed counsel ... so you’re either having [counsel] argue this case—or you are representing yourself? Which is it?” the judge responded. “I’ll represent myself, if that’s the choice,” Bunyard replied.

The court recessed to let Bunyard talk to his lawyer, and when the court reconvened, Bunyard stated, “I want it on the record I wish to represent myself unequivocally.” The judge refused to acknowledge Bunyard’s demand and told him he had to “file a proper motion” to be heard in court. Since it was Friday, Bunyard said, “there’s no mail going out for the weekend. There’s no way I can get it” to the court. The ...

Missouri Supreme Court Clarifies No Resisting Arrest Charge Once Arrest is Completed

by Dale Chappell

A defendant trying to break free of an officer’s grip while already under arrest and in handcuffs was not “resisting arrest” because the defendant was not trying to prevent his arrest, the Supreme Court of Missouri held.

Six officers surrounded Daniel Ajak and put him under arrest by placing him in handcuffs and making him sit in a chair in his kitchen after a domestic disturbance at his house. As Ajak continued to verbally protest that he was the victim, he was moved to a police car to be taken to jail. On the way out to the car, he tried to break free of the officer’s grip while still in handcuffs and spit on the officer. In addition to the domestic assault charges, police added a resisting arrest charge. A jury found Ajak guilty of only the resisting arrest charge, and he was sentenced to 280 days in jail. He appealed, and the Missouri Supreme Court granted transfer after the court of appeals affirmed.

The question before the Supreme Court was whether Ajak actually resisted arrest when he tried to break free, after having been put in handcuffs and forced by the officers to sit in ...

FBI Data Reveal ‘War on Cops’ is Nonexistent

by Dale Chappell

Where is the “war on cops” claimed by the country’s leaders? According to the Federal Bureau of Investigation’s annual report on law enforcement officers killed in the line of duty across the country, 93 cops died in the line of duty in 2017, and 118 were killed in 2016. However, more than half were killed in accidents, and half of those were not wearing seatbelts. The data were compiled from local, state, federal, tribal, and campus police agencies.

Being a cop is not even in the top 10 most dangerous jobs in the United States. While some officers unfortunately die while on duty, the data clearly show that there is no “war on cops” as some falsely claim. In fact, being a federal law enforcement officer was one of the safest jobs in the country the past two years: None were killed in the line of duty in 2017, and only one was killed in 2016.

Yet, Congress still wants to make the killing of a cop a “hate crime.” The facts do not support this push. More cops were killed in previous years than the last two years. Clearly, line of duty deaths for cops ...

South Carolina Supreme Court Clarifies When Court Can Deny Right to Self-Representation; Orders New Trial

by Dale Chappell

“One who is his own lawyer has a fool for a client,” U.S. Supreme Court Justice Blackmun once opined.

Nevertheless, a circuit judge may deny a defendant’s request to be his own lawyer but only if the court finds he has not knowingly, intelligently, and voluntarily waived his right to counsel, the Supreme Court of South Carolina held, clarifying when a court may deny such a request.

According to the circuit court, there was no question that Lamont Samuel was “bright enough, educated enough” to waive his right to counsel and represent himself at his murder trial. However, the court denied Samuel’s motion to represent himself, after the lawyer Samuel claimed was helping him told the court that he was not doing so. Concluding that Samuel had lied, the court determined that he had violated the Rules of Professional Conduct and was trying to manipulate the system. The court denied his motion to proceed pro se. He was convicted and sentenced to 50 years in prison. Samuel appealed, arguing the circuit judge erred in denying his right to self-representation.

The court of appeals affirmed. The South Carolina Supreme Court granted certiorari and reversed the court ...


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