WAPA's Legal Notes

WEEKLY UPDATE FOR DECEMBER 26, 2008

Failed Tape Recorder. When the recording system in a court of limited jurisdiction fails, a new trial is only required when the judge of the court of limited jurisdiction determines that the missing or damaged recording is "significant" or "material". The district court judge’s determination is reviewable by the superior court under an abuse of discretion standard. State v. Osman, COA No. 60359-1-I (Dec. 22, 2008).

Offender Score Calculation. An Ohio burglary conviction that rested upon the defendant’s intent to commit a misdemeanor is not comparable to a Washington burglary conviction. State v. Larkins, COA No. 59559-8-I (Dec. 22, 2008).

Juvenile Confessions. Although a separate CrR 3.5 hearing is not necessary in juvenile proceedings, the circumstances surrounding a juvenile's statement must be fully assessed before the admission of an alleged inculpatory statement, either in a formal pretrial hearing or during trial. State v. S.A.W., COA No. 36336-4-II (Nov. 18, 2008, publication ordered Dec. 23, 2008).

Offender Score. A prior Louisiana conviction is properly established by producing (1) a felony bill of information, (2) a page containing a stamp with specific language, the defendant's fingerprints, and a signature, and (3) an extract of court minutes for the trial court judge's oral sentencing ruling, for each conviction. State v. Harris, COA No. 36725-4-II (Dec. 23, 2008).

Sexually Violent Predators. Age alone is not sufficient to warrant a new commitment hearing under the current version of RCW 71.09.090. This version of the statutory scheme passes constitutional muster. In re the Detention of Savala, COA No. 24691-4-III (Sept. 25, 2008, publication ordered Dec. 23, 2008).

Sex Offenders. RCW 9.94A.728(2)(a), which provides for convicted sex offenders’ early release into community custody, does not create a liberty interest that is protected under the Due Process Clause of the Fourteenth Amendment. Carver v. Lehman, No. 06-35176 (9^th Cir. Dec. 22, 2008). [Editor’s note: This opinion replaces a prior opinion that was not finalized before the death of one of the prior members of the panel.]

WEEKLY UPDATE FOR DECEMBER 12, 2008

Blakely. The proper remedy when a jury was convened to consider aggravating circumstances prior to the adoption of a statute authorizing jury consideration of aggravating circumstances, is a vacation of the exceptional sentence and a remand to the trial court for a resentencing. Whether the 2007 Blakely-fix statute applies to the resentencing should not be decided at this time, as the State has not yet attempted to invoke the statute. State v. Doney, No. 81269-1 (Dec. 11, 2008).

Felony Riot. To be guilty of felony riot, the defendant must personally be armed with a deadly weapon. State v. Montejano, COA No. 26805-5-III (Dec. 11, 2008).

Consent Searches. Police officer’s failure to give Ferrier warnings to a homeowner when requesting permission to enter the homeowner’s house to look for a non-resident suspect in a rollover accident, invalidated the consent and required the suppression of the marijuana that the officers observed while searching for the suspect. State v. Freepons, COA No. 26496-3-II (Dec. 11, 2008). Judge Brown authored the dissent.

Brady and 42 U.S.C. § 1983 Liability. Police officers can be found liable under 42 U.S.C. § 1983 for withholding potential exculpatory evidence from a defendant by failing to disclose the information to a prosecutor. Bad faith on the part of the police officers is not a necessary predicate to recovery under 42 U.S.C. § 1983. The prejudice to the plaintiff caused by the delay in turning over potentially exculpatory information post guilty verdict may support a 42 U.S.C. § 1983 action. Tennison v. Sanders, No. 06-15426 (9th Cir. Dec. 8, 2008).

WEEKLY UPDATE FOR NOVEMBER 28, 2008

Jury Selection. Article I, section 22 of the Washington State Constitution guarantees a fair and random selection of jurors from the county in which a crime is alleged to have been committed. With respect to a court of limited jurisdiction, the jurors may be selected from a more limited pool, "the population of the area served by the court," so long as the jurors are randomly selected. Both the constitutional and statutory provisions were complied with by selecting jurors from areas having zip codes that the United States Postal Service that apply to the City of Tukwila, even though the zip codes also apply to property outside the city limits. City of Tukwila v. Garrett, No. 81067-2 (Nov. 26, 2008). Justice Sanders authored the dissenting opinion.

Equitable Tolling. The one-year time limit on collateral attacks contained in RCW 10.73.090 is not jurisdictional. This time limit, however, may only be equitably tolled when there is bad faith, deception, or false assurances by the State or prison officials and the exercise of diligence by the criminal defendant. In Re PRP of Bonds, No. 80995-0 (Nov. 26, 2008). Chief Justice Alexander authored the concurring opinion. Justice Sanders authored the dissenting opinion.

Felony Sentencing. Unranked felony fish and wildlife convictions are properly included in the offender score calculation. A judgment and sentence is facially invalid when the term of incarceration plus the period of community custody exceeds the statutory maximum for the offense. In Re PRP of Tobin, No. 81110-5 (Nov. 26, 2008).

Vehicle Impounds. The process for redeeming an impounded vehicle contained in RCW 46.55.120 is not the exclusive remedy for a person whose vehicle is unlawfully impounded. A person whose vehicle is unlawfully impounded may bring a conversion action against the authority that authorized the impoundment. Potter v. Washington State Patrol, No. 79172-4 (Nov. 26, 2008). Justice Madsen authored the dissenting opinion.

Search Warrant. Evidence collected pursuant to a search warrant predicated upon a drug dog’s alert will be inadmissible if the issuing magistrate is not provided with sufficient evidence of the drug dog’s reliability. A conclusory statement that the dog was "[t]rained to recognize the odor of illegal narcotics" is insufficient to establish reliability. State v. Neth, No. 81361-2 (Nov. 26, 2008).

Confessions. A 16-year-old defendant’s confession was not rendered involuntary by a detective’s promise that he would not be charged with a crime for the graffiti on the interior of a stolen vehicle. Such a promise is only one factor to be considered under the totality of the circumstances test. In order to result in a suppression of the confession, such a promise must be sufficiently compelling to overbear the suspect's will in light of all attendant circumstances. State v. Unga, No. 80020-1 (Nov. 26, 2008). Justice Sanders authored a concurring opinion.

Attorney/Client Privilege – Inadvertent Disclosure of Privileged Documents. An attorney who is responding to a discovery request can waive the attorney/client privilege on behalf of his client by producing privileged documents. Documents inadvertently disclosed by an attorney will result in a waiver of the attorney/client privilege depending on the circumstances surrounding the disclosure. Five factors will be considered: (1) the reasonableness of precautions taken to prevent disclosure, (2) the amount of time taken to remedy the error, (3) the scope of discovery, (4) the extent of the disclosure, and (5) the overriding issue of fairness. Sitterson v. Evergreen School Dist. No. 114, COA No. 36218-0-II (Nov. 25, 2008).

Sex Offender Registration. An out-of-state conviction will only support a conviction for failing to register as a sex offender when the out-of-state conviction is legally "comparable" to Washington sex offenses and, if not legally, then factually comparable. State v. Werneth, COA No. 26208-1-III (Nov. 25, 2008).

Intimidating a Public Servant. Threats made to a police officer by a suspect, upon the suspect’s arrest and continuing during the suspect’s transport to the jail, could reasonably be inferred as being made with the intent to get the officer to change his course of conduct. An explicit "I will will attack you unless you release me" statement is not necessary. State v. Montano, COA No. 26124-7-III (Nov. 25, 2008).

Same Criminal Conduct. A trial court does not err by including a defendant’s prior robbery and assault convictions that arose out of the same incident in the offender score. A de novo standard of review will be applied to the trial court’s determination that the offenses do not constitute the same criminal conduct. State v. Torngren, COA No. 26561-7-III.

WEEKLY UPDATE FOR NOVEMBER 21, 2008

State v. Warren, No. 79356-5 (Nov. 20, 2008). Justice Madsen authored an opinion that disagrees with the majority’s determination that the prosecutor’s misconduct was harmless, but agrees with the majority’s resolution of the no contact issue. Justice Alexander authored an opinion that would reverse the convictions on the grounds that the argument was not harmless. Justice Sanders authored an opinion that dissented on both issues.

Wind Turbines. The energy facilities site locations act (EFSLA), chapter 80.50 RCW, authorizes the governor to preempt county land use laws when siting a facility that exclusively uses wind power. The State did not abuse its authority in deciding whether to preempt county land use laws. The State did not violate the appearance of fairness doctrine. The State did not fail to adequately consider an environmental impact statement. Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, No. 81332-9 (Nov. 20, 2008).

On Site Sewage System Applications. The "all requirements" provision in the Thurston County Board of Health Code for septic systems includes the alternatives provided in the code. Griffin v. Thurston County Bd. of Health , No. 80214-9 (Nov. 20, 2008). Justice Sanders authored the dissenting opinion.

Unit of Prosecution. The unit of prosecution for witness tampering, RCW 9A.72.120, is each individual instance of attempting to induce a witness or a person to do any of the actions set forth in RCW 9A.72.120. State v. Hall, COA No. 60538-1-I (Nov. 17, 2008).

Possession of Stolen Access Devices. A conviction for possession of a stolen access device may be supported by the possession of checking account numbers. Because checking account numbers can be used to access accounts in nontraditional ways not involving paper checks, they do not fall within the statutory exclusion for devices that can be used to initiate a transfer of funds "solely by paper instrument." State v. Chang, COA No. 60743-0-I (Nov. 17, 2008).

Probation Violations. Revoking probation based on a violation of a "no criminal violations of the law" condition does not require a finding of proof beyond a reasonable doubt but instead requires evidence sufficient to reasonably satisfy the municipal court that the defendant violated a probationary condition. Thus probation can be revoked even if the defendant is acquitted on the new charges. City of Aberdeen v. Regan, COA No. 36715-7-II (Nov. 18, 2008).

Miranda. No Miranda warnings were required for a suspect who voluntarily went to the police station, who was told once he was at the police station that he could leave at any time, who was not handcuffed at any time, who was allowed to leave at the end of the interview, and who did not need a door key or police escort to leave the interview room. State v. Grogan, COA No. 26511-1 (Nov. 18, 2008).

Child Hearsay. The defendant’s statements to police and to one person who was not a law enforcement officer, was sufficient to corroborate the non-testimonial statement of the non-testifying child victim. State v. Grogan, COA No. 26511-1 (Nov. 18, 2008).

Unlawful Seizure. Police unlawfully seized a passenger in a parked car when, during a social contact, they refused to let him leave when he requested to do so. State v. Beito, COA No. 26379-7-III (Nov. 18, 2008).

WEEKLY UPDATE FOR NOVEMBER 14, 2008

Crime Related Prohibitions. A sentencing condition imposed on a Native American tribal member convicted for off-reservation, illegal fishing is enforceable within Indian Country. State v. Cayenne, No. 80499-1 (Nov. 13, 2008).

Restoration of Rights. A felon, who was convicted prior to July 1, 2000, is entitled to a certificate of discharge even though he did not pay his restitution obligations in full, once the time period for collecting on his LFO’s has expired. State v. Gossage, No. 80310-2 (Nov. 13, 2008).

Search of Vehicles Incident to Arrest. In order to justify a search of a vehicle incident to the arrest of a driver for DUI, the State must demonstrate that the driver was physically proximate to the passenger compartment of his vehicle at the time of his arrest. That burden was not met in the instant case, as the field sobriety tests that resulted in the arrest were conducted 20 feet away from the defendant’s car, and the defendant was placed in a patrol car that was parked 40 feet from his car prior to the search of the car. State v. Webb, COA No. 60732-4-I (Sept. 29, 2008, publication ordered November 10, 2008).

County Liability. Thurston County is liable for the acts of the prosecuting attorney that gave rise to hostile work environment and retaliation claims. The prosecutor’s actions are those of the county. Evidence of actions that occurred outside the statute of limitations period may be admitted to support a hostile work environment claim. Broyles v. Thurston County, COA No. 35950-2-II (Nov. 12, 2008).

LUPA Damages. Whether a City knew or reasonably should have known that imposition of the 30 percent open-space set-aside condition was unlawful is an issue of material fact that will defeat a developer’s motion for summary judgment for damages under RCW 64.40.020(1). Isla Verde Intn'l Holdings v. City Of Camas, COA No. 36066-7-II (Nov. 12, 2008).

Firearm Enhancement. Where the charging document specifies that the defendant was armed with a firearm, but the jury verdict form merely states that the defendant was armed with a deadly weapon, the error in the verdict form is not subject to harmless error. The defendant may only receive the deadly weapon enhancement. State v. Williams, COA No. 23124-1-III (Nov. 13, 2008). ***Please note the case upon which Division Three relies upon, Recuenco, deals with a defective charging document along with a defective verdict form. As indicated in the following issue statement from the Washington Supreme Court’s web site, the situation present in this case is currently before the Washington Supreme Court in a number of cases:

WEEKLY UPDATE FOR NOVEMBER 7, 2008

Restitution. Insufficient evidence supported a restitution award for the $11,500 worth of stolen jewelry that was not recovered. The defendant , who pled guilty to possession of stolen property, could only be ordered to pay restitution for the items that the evidence puts in her possession. On remand, the court may enter a new restitution order, but may only consider the evidence developed at the original restitution hearing. State v. Griffith, No. 79883-4 (Nov. 6, 2008). Justice Madsen dissents, in part.

Unit of Prosecution. The unit of prosecution for solicitation to commit murder centers on the enticement, not the number of victims. A new or separate and distinct request may constitute a fresh enticement that supports a separate conviction, although multiple conversations regarding an offer that remained open constitutes a single count. The unit of prosecution for solicitation does not multiply when the offeree brings in his or her crime partners. State v. Jensen, No. 79384-1 (Nov. 6, 2008). Justice J. Johnson dissented.

The Washington Supreme Court granted petitions for review on November 5, 2008, in the following cases:

Forfeiture. A claimant does not substantially prevail for purposes of attorney's fees in a forfeiture action when the court rejected their claim as to one of the two items challenged, resulting in a recovery of approximately $19,000 out of the nearly $77,000 sought. Guillen v. Contreras, COA No. 26432-7-III (Nov. 4, 2008). Judge Schultheis authored a dissenting opinion.

Double Jeopardy. When judgment is arrested because the defendant was convicted for an alternative means of committing a crime that was not contained in the information, double jeopardy precludes trying the defendant on the correct alternative means of committing the crime. State v. Goldsmith, COA No. 26403-3-III (Nov. 4, 2008).

Law of the Case. A prosecutor does not act vindictively by filing a motion in the trial court to correct the maximum sentence to 20 years under the doubling provisions of RCW 69.50.408(1) in accordance with an order of the Court of Appeals. State v. Roy, COA No. 26082-8-III (Nov. 4, 2008).

WEEKLY UPDATE FOR OCTOBER 31, 2008

Appellate Record. A transcript prepared from a tape recording system that contained numerous short gaps due to multiple people speaking or people straying too far from the microphone, although imperfect, is sufficient for appellate review. State v. Johnson, COA No. 35492-6-II (Oct. 28, 2008).

Severance of Defendants. Severance was properly denied, as one defendant’s attempt to exculpate himself by blaming his codefendants did not require them to convict the codefendants. The jury could have believed each of the three defendants’ defenses, thus the defenses were not irreconcilable. Severance of defendants is not required when one of the joined defendants takes the stand to testify on his own behalf. State v. Johnson, COA No. 35492-6-II (Oct. 28, 2008).

WEEKLY UPDATE FOR OCTOBER 24, 2008

Equivocal Requests for Counsel. Once a suspect has knowingly waived his right to an attorney, he must explicitly ask for an attorney or the police may continue questioning. The rule announced in State v. Robtoy, 98 Wn.2d 30 (1982), which forbad officers from asking any questions beyond those necessary to clarify an equivocal request for counsel, is replaced by the rule announced in Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). State v. Radcliffe, No. 80391-9 (Oct. 23, 2008). Justice Chambers authored a concurring opinion.

[Editor’s note: The Court did not reach the defendant’s argument that Const. art. I, § 9, required a different result because the defendant did not assert this claim in the Court of Appeals or in his motion for discretionary review. If the Court had considered the issue, the result should be the same.

Blakely. The 2007 Blakely-fix will apply on remand to the resentencing of a defendant who was originally tried in 2004, and who had a jury determination of aggravating factors. Harmless error cannot be applied to avert the retrial on the aggravating circumstances. State v. Applegate, COA No. 56085-9-I (Oct. 20, 2008)

Restoration of Firearm Rights. A juvenile offender who is convicted of a class A felony sex offense is ineligible to have his firearm rights restored pursuant to RCW 9.41.040(4). A court’s order relieving such an individual from the requirement to register as a sex offender is not the equivalent of a "certificate of rehabilitation." The permanent restriction upon the owning of firearms violates neither the Second Amendment nor Washington Const. art. I, § 24. State v. Hunter, COA No. 60552-6-I (Oct. 20, 2008)

Double Jeopardy and Guilty Pleas. A "same offense" double jeopardy claim is waived by the entry of a guilty plea to both counts. State v. Amos, COA No. 36104-3-II (Oct. 21, 2008).

Double Jeopardy. A trial court’s conditional dismissal of a second degree felony murder verdict of guilty based upon a jury’s finding of guilty on a separate count of first degree murder is sufficient to satisfy double jeopardy, where the conditionally dismissed count does not appear in the judgment and sentence. The conditional dismissal will stand unless the first degree murder conviction is set aside at some time in the future. State v. Faagata, COA No. 36325-9-II (Oct. 21, 2008).

42 U.S.C. § 1983 Liability. In a Fourteenth Amendment claim for violation of the constitutional right of association brought by the parents of a son who was killed during an urgent police confrontation, the established standard is whether the officer acted with a purpose to harm the deceased without regard to legitimate law enforcement objectives. Porter v. Osborne, No. 07-35974 (9th Cir. Oct. 20, 2008).

WEEKLY UPDATE FOR OCTOBER 17, 2008

Marijuana and Drug Paraphernalia. A defendant may receive an unwitting possession jury instruction without taking the stand. A citation issued by a police officer that charges "possession of drug paraphernalia" does not state all the essential elements of the offense and must be dismissed. Despite the fact that the marijuana and pipe were found on the floorboard near the back seat, the evidence was insufficient to convict the sole back seat passenger for constructive possession of the marijuana and the pipe. State v. George, COA No. 59624-1-I (Oct. 13, 2008). Judge Dwyer filed a dissenting opinion with respect to the sufficiency of the evidence.

Open Public Trials. The trial court violated the defendant’s right to an open trial by hearing the defendant’s Batson claim in the jury room rather than the courtroom. State v. Sadler, COA No. 35021-1-II (Oct. 14, 2008). Judge Hunt dissented on the public trial issue.

Sexual Exploitation. The phrase "requiring production" in the affirmative statutory defense to sexual exploitation of a minor, is not unconstitutionally vague. State v. Sadler, COA No. 35021-1-II (Oct. 14, 2008). Judge Hunt dissented.

Independent Source. Where the State stipulated that the officers had no intent to seek a search warrant before they conducted an illegal "inventory search" of the defendant’s trunk, the State cannot save the fruits of the search under the independent source doctrine. State v. Perez, COA No. 35379-2-II (Oct. 14, 2008). Judge Quinn-Brintnall dissented.

Consent Searches. Ferrier warnings were not required when the officer was in fresh pursuit of the suspect, the officer did not enter into the home or any other building on the property with the intent of seeking consent to search, and the suspect voluntarily led the officer to the shed that contained the elk carcases. State v. Overholt, COA No. 26270-7-III (Oct. 14, 2008).

WEEKLY UPDATE FOR OCTOBER 10, 2008

Community Custody. A defendant may raise a preenforcement vagueness challenge to conditions of community custody for the first time on appeal. A requirement that prohibits the from "possess[ing] or access[ing] pornographic materials, as directed by the supervising Community Corrections Officer is unconstitutionally vague. The condition that prohibits the defendant from frequenting "establishments whose primary business pertains to sexually explicit or erotic material" is not unconstitutionally vague. The requirement that the defendant "not possess or control sexual stimulus material for [his] particular deviancy as defined by the supervising Community Corrections Officer and therapist except as provided for therapeutic purposes" is unconstitutionally vague. State v. Bahl, No. 79988-1 (Oct. 9, 2008). Justice J. Johnson authored a concurring opinion.

Double Jeopardy. Reaffirming the "hard look at each case" double jeopardy standard adopted in State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005), the Court vacates a second degree assault conviction entered against a separate victim than the victim of the first degree robbery conviction. State v. Kier, No. 81030-3 (Oct. 9, 2008). Justice J. Johnson authored a dissenting opinion.

Growth Management Act. The Growth Management Hearings Board improperly dismissed evidence that the County relied upon in finding that the land at Island Crossing was not land of long-term commercial significance to agriculture. Neither res judicata nor collateral estoppel precluded the County from redesignating this land "urban commercial. City of Arlington v. Cent. Puget Sound Growth Management Board, No. 80395-1 (Oct. 9, 2008). Justice Chambers authored a concurring opinion. Chief Justice Alexander authored the dissenting opinion.

Restoration of Firearm Rights. When a person seeks the restoration of firearm rights, his petition is judged by the version of RCW 9.41.040 that is in effect on the date the petition is considered. State v. Rivard, COA No. 25923-4-III (Oct. 7, 2008). Judge Thompson dissented.

Prior Offenses. When the existence of a prior offense elevates a crime from a gross misdemeanor to a felony, the State must prove the existence of these prior offenses to the jury. State v. Bache, COA No. 26262-6 (Oct. 7, 2008).

Pervasively Regulated Industries. Commercial trucking is subject to warrantless inspections as a pervasively regulated industry under New York v. Burger, 482 U.S. 691 (1987). United States v. Delgado, No. 07-50238 (9th Cir. Oct. 7, 2008).

WEEKLY UPDATE FOR OCTOBER 3, 2008

The United States Supreme Court starts its new term on Monday, October 5th. Some cases that will impact Washington prosecutors include:

Speedy Trial. Whether delays caused by a public defender can deprive a criminal defendant of his right to a speedy trial. Vermont v. Brillon, No. 08-88.

Jury Selection. Whether the erroneous denial of a criminal defendant’s preemptory challenge that resulted in the challenged juror being seated requires automatic reversal of a conviction. Rivera v. Illinois, No. 07-9995.

Impeachment. Whether prosecutors may use a defendant’s statement - made in the absence of a knowing and voluntary waiver of the right to counsel - to impeach a witness, as opposed to during its case-in-chief. Kansas v. Ventris, No. 07-1356.

Interrogation. Whether an indigent defendant must affirmatively accept the appointment of counsel to preclude future police interrogation in the absence the attorney. Montejo v. Louisiana, No. 07-1529.

Searches incident to arrest. Whether the warrantless search of automobiles based upon the arrest of an occupant violates the Fourth Amendment. Arizona v. Gant, No. 07-542.

Frisks. Whether a police officer may search a suspect during a routine traffic stop if she believes that suspect may be armed and dangerous but has no justifiable reason to believe that they are committing a crime. Arizona v. Johnson, No. 07-1122.

Crawford and Lab Reports. Whether crime lab reports may be used as evidence without having the expert who prepared them testify. Melendez-Diaz v. Massachusetts, No. 07-591.

Blakely and Consecutive Sentences. Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), requires that facts (other than prior convictions) necessary to imposing consecutive sentences be found by the jury or admitted by the defendant. Oregon v. Ice, No. 07-901.

Accomplice Liability. The Washington Supreme Court has repeatedly approved of the pattern accomplice liability jury instructions given in Sarausad’s trial, which mirror the statutory language on accomplice liability under state law. The United States Court of Appeals for the Ninth Circuit found a violation of due process based its independent conclusion that the instructions were ambiguous, and that there was a reasonable likelihood a jury could misapply the instructions so as to relieve the prosecution of its burden to prove each element of a crime beyond a reasonable doubt.

Waddington v. Sarausad, No. 07-772.

Commutation. Due process protections attach to the revocation of a conditional commutation. Thus, a prisoner is entitled to be heard prior to the revocation of a conditional commutation. A prisoner may, however, only get relief in a PRP based upon this claim if he can show that he was prejudiced by the violation. In re Personal Restraint of Bush, No. 79834-6 (Oct. 2, 2008). Justice Chambers authored the dissenting opinion.

Execution of Search Warrants. A trespass claim may be asserted against a city alleging that law enforcement officers exceed the scope of their lawful authority to enter property to execute a search warrant. To be successful, the plaintiff must establish that the officers executing the search warrant unnecessarily damaged the property while conducting their search, that is, that they damaged the property to a greater extent than is consistent with a thorough investigation. Police need not pay compensation for damage caused during the execution of a search warrant under a taking of private property theory. Brutsche v. City of Kent, No. 79252-6 (Oct. 2, 2008). Justice Chambers concurred in part, and dissented in part. Justice Sanders authored the dissenting opinion.

Domestic Violence and Employees. For purposes of a wrongful discharge tort brought by an at-will domestic violence survivor, the Court holds that the State of Washington established a clear mandate of public policy of protecting domestic violence survivors and their families and holding their abusers accountable. Danny v. Laidlaw Transit Services, Inc., No. 78421-3 (Oct. 3, 2008). Justice Fairhurst authored a concurring opinion. Justice Madsen concurred in part and dissented in part. Justice J. Johnson authored a dissenting opinion.

The Washington Supreme Court accepted review of the following cases on October 1^st:

Drug Court. Whether a drug court contract’s provision that the evidence in the police reports is sufficient to convict the defendant of burglary may be challenged following the defendant’s expulsion from drug court. Whether the drug contract is unenforceable because it amounts to a guilty plea and the trial court did not fully advise the defendant of the consequences. State v. Drum and In re Personal Restraint of Drum, No. 81498-8. Jefferson County. COA opinion reported at 143 Wn. App. 608 (2008).

Constitutional Speedy Trial. Whether a nine-month delay between arraignment and trial which was lawful under CrR 3.3 violated the defendant’s constitutional right to a speedy trial. State v. Iniguez. No. 81750-2. Franklin County (State’s petition). COA opinion is reported at 143 Wn. App. 845 (2008).

Discovery of Child Pornography. Whether the trial court’s denial of a mirror image of the computer hard drive mandates a new trial on the commercial child pornography charges. State v. Grenning, No. 81449-0. Pierce County. Defendant’s petition for review denied; Review granted only as to issue raised in State’s answer to petition for review. COA opinion is reported at 142 Wn. App. 518 (2008).

SVP. When is a SVP detainee who was committed prior to the last amendment to RCW 71.09.090 entitled to a full evidentiary hearing on whether he still poses a danger to the public. In re Det. Of Fox, In re Det. of Jones, and In re Det. of Jacka, No. 81796-1. Cconsolidated with State v. McCuistion # 81644-1. COA opinion is unpublished.

Property Loss. Whether the actual cash value provision of an insurance policy included reimbursement for sales tax. Holden v. Farmers Ins. Co. of Wash., No. 81487-2. COA opinion reported at 142 Wn. App. 745 (2008).

Uniform Fraudulent Transfer Act. Thompson v. Hanson, No. 81311-6. COA opinion reported at 142 Wn. App. 53 (2007).

Alcohol Overservice. Sufficiency of the evidence of negligent overserving. Faust v. Albertson, No. 81356-6. Petition for Review granted only on issue of alcohol overservice. COA opinion is unpublished.

SVP. The "best interests" standard applies to the mental health treatment needs of a violent sex offender, a standard which must be met to justify release to an LRA. The terms "best interests" and "adequate community safety" can be understood by persons of common intelligence and reasonably applied within the statute's intent. In re the Detention of Bergen, COA No. 59167-3-I (July 7, 2008, released for publication on Sept. 29, 2008).

WEEKLY UPDATE FOR SEPTEMBER 26, 2008

Organ Collection. The Washington Uniform Anatomical Gift Act (WAGA), RCW 68.50.520-.620, repealed by Laws of 2008, ch. 139, § 31, .901- .903, allows only hospitals to accept an undesignated anatomical gift. While the Act does not provide a statutory cause of action, unauthorized use of an organ is actionable under common law theories of recovery. Adams v. King County, COA No. 81028-1 (Sept. 25, 2008).

Felony Sentencing Violations. The legislature, in establishing concurrent enforcement procedures administered by DOC, did not divest superior courts of their authority to enforce the sentences that they impose. State v. Gamble, COA No. 60706-5-I (Sept. 22, 2008).

Homicide by Abuse. Sufficient evidence supported the defendant’s conviction for homicide by abuse. Double jeopardy precludes convictions for both homicide by abuse and second degree felony murder. The second degree murder conviction must be vacated. State v. Reyes, COA No. 36136-1-II (Sept. 23, 2008).

Search Incident to Arrest. Where an officer manifest an intent to make an actual lawful custodial arrest, the officer may search the defendant incident to arrest, despite the fact that the local jail is under booking restrictions. State v. Gering, COA No. 26313-4-III (July 31, 2008, publication ordered Sept. 25, 2008).

Third Degree Assault. A shoplifter, who is detained by someone who is not employed by the victim store and who did not witness the theft, cannot be convicted of third degree assault for pushing the person who detained him, as the detention was not lawful. The shoplifter is properly convicted of fourth degree assault. State v. Garcia, COA No. 26037-2-III (Sept. 23, 2008). Judge Schultheis authored a dissenting opinion in which he argues that remanding a case for sentencing on a lesser included offense is only proper when the State requests this remedy in its briefing.

Land Use. A legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative land-use exaction,

is reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). Tapps Brewing v. City of Sumner, No.13744 (9th Cir. Sept. 25, 2008).

WEEKLY UPDATE FOR SEPTEMBER 19, 2008

High Offender Score. The trial court’s imposition of an exceptional sentence above the standard range pursuant to RCW 9.94A.535(2)(c) upon a defendant who was convicted of multiple crimes and who had a high offender score did not violate the defendant’s Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296 (2004). No jury is needed for the "unpunished" crime aggravating circumstance because RCW 9.94A.535(2)(c) does not include "clearly too lenient" language. State v. Alvarado, No. 81069-9 (Sept. 18, 2008).

Privacy Interests. A pre-trial detainee’s privacy interests are necessarily lowered while in custody. The State may lawfully inventory an arrestee's personal effects, whether shoes or a box of documents. The State’s action of obtaining an ex parte order for the seizure of some of the detainee’s possessions, which purportedly contained copies of autopsy photos and other non-redacted discovery materials, does not provide a basis for dismissing his murder case under CrR 8.3(b). State v. Puapuaga, No. 80041-3 (Sept. 18, 2008). Justice Sanders authored a concurring opinion.

Bail Bonds. A negligence action brought against the county clerk for applying monies belonging to one bail bond company to pay an obligation of another bail bond company at the request of an agent for both companies should not have been dismissed on the County’s summary judgment action, as the clerk had written notification of which bonds each company underwrote and a jury could reasonably find that the clerk had a duty to verify that a bond was underwritten by a surety before allocating the surety's funds to the forfeited bond. Ranger Insurance Co. v. Pierce County, COA No. 80389-7 (Sept. 18, 2008).

Exceptional Sentences. When the combined standard range of incarceration and the standard community custody period exceed the statutory maximum, the court may impose an exceptional sentence below the standard range of incarceration to accommodate a longer period of community custody. State v. Davis, COA No. 60228-4-I (Sept. 15, 2008).

Guilty Plea Withdrawal. A defendant who pleads guilty (not by a Newton plea) may only withdraw his guilty plea based upon newly discovered evidence when the newly discovered evidence would destroy the factual basis for the plea. In re Personal Restraint of Reise, COA No. 34879-9-II (Sept. 16, 2008).

Ineffective Assistance of Counsel. Because counsel had a tactical reason for not objecting to a mental health professionals’ testimony that the defendant (1) suffered from antisocial personality disorder and (2) was the type of person who repeatedly harms others and feels no remorse for his actions, his representation was not deficient. State v. Kolesnik, COA No. 35837-9-II (Sept. 16, 2008).

Exceptional Sentences. The law enforcement aggravating circumstance contained in former RCW 9.94A.535(3)(v) is applicable to first degree assault. State v. Kolesnik, COA No. 35837-9-II (Sept. 16, 2008).

Community Custody Conditions. In a case where drugs impacted the defendant’s conduct, it was proper for the court to order the defendant to notify his community corrections officer when he has a valid prescription for a controlled substance, and to prohibit the defendant from possessing or using any paraphernalia that can facilitate the ingestion, process, or sale of a controlled substance. State v. Kolesnik, COA No. 35837-9-II (Sept. 16, 2008).

LFO Collection. The court’s imposition of sanctions for the failure to pay LFO’s does not constitute an illegal suspended sentence if the defendant is required to serve the entire period of incarceration. RCW 10.01.180(3) does not allow the defendant to receive credit against his fine for the time spent in custody pursuant to RCW 9.94A.634 for non-payment of LFOs. State v. Nason, COA No. 26180-8-III (July 31, 2008), released for publication on Sept. 18, 2008).

WEEKLY UPDATE FOR SEPTEMBER 12, 2008

Smoking Regulations. Smoking is prohibited at an American Legion Post under chapter 70.160 RCW as the Post is a "place of employment" and the prohibition as applied to the Post is constitutional. American Legion Post #149 v. WA State Dept. of Health & Kitsap County Health District, No. 79839-7 (Sept. 11, 2008). Justice Madsen concurred in part and dissented in part. Justice Sanders authored a dissenting opinion. Justice Chambers authored a dissenting opinion. Justice J. Johnson also authored a dissenting opinion.

Rearraignment. The defendant was not misled by an unnecessary rearraignment on an uncharged crime following a mistrial. State v. Eaton, No. 78970-3 (Sept. 11, 2008). Justice J. Johnson authored a concurring opinion. Justice Sanders dissented.

Charging Document. A trial court may not allow the State to reopen its case to amend an otherwise insufficient charging document. State v. Quismundo, No. 80195-9 (Sept. 11, 2008).

Frisks. Officers improperly reached into a suspect’s pocket as part of a more intensive frisk that was performed after the suspect was handcuffed following an initial pat down. Since the suspect was cooperative and made not attempt to reach his pant’s pocket, and could not have reached the pocket with the handcuffs in place, there was no objective basis for the officers to believe that the suspect was presently armed or dangerous. State v. Xiong, No. 80236-0 (Sept. 11, 2008).

Land Use. The County’s decision to redesignate property from "agricultural lands of long-term significance" to "rural self sufficient" was not clearly erroneous where there are no dryland framing operations in the area, the property is not within an irrigation district, the property does not have irrigation water, and precipitation is inadequate for farming. Yakima County v. Eastern Washington Growth Management Board, COA N0. 26783-1-III (Sept. 11, 2008).

WEEKLY UPDATE FOR SEPTEMBER 5, 2008

The Washington Supreme Court granted review in the following cases on September 3, 2008:

Defendant’s Death. State v. Webb, No. 81314-1. King County. No published COA opinion. Webb raises the issue of when a criminal conviction must be vacated following death of the defendant. We argued that the appeal should be abated but the criminal conviction should stand. The COA agreed with us in an unpublished order dismissing the appeal but refusing to dismiss the conviction. The case will require the S.Ct. to apply State v. Devin, 158 Wn.2d 157, 142 P.3d 599 (2006).

Drug Sentencing Enhancement. State v. Eaton, No. 81348-5. Clark County – State’s Petition. COA opinion reported at 143 Wn. App. 155 (2008). Because arresting officer brought defendant and the methamphetamine on defendant's person into the county jail, defendant did not voluntarily bring the methamphetamine into the county jail. Thus, trial court improperly imposed sentence enhancement for possession of methamphetamine in a county jail under RCW 9.94A.533(5) on defendant.

Time for Trial. State v. Kenyon, No. 81374-4. Mason County. COA opinion reported at 143 Wn. App. 304 (2008). Defendant's trial was timely under CrR 3.3 as 1) conflict between judge's vacation and defendant's trial was due to defense attorney's repeated requests for continuances and extensions; and 2) there was no unnecessary delay because the trial commenced as quickly as possible following attorney's completion of trial preparation.

Corpus Delicti. State v. Dow, No. 81243-8. Cowlitz County. COA opinion reported at 142 Wn. App. 971 (2008). RCW 10.58.035 is not unconstitutional as corroboration is not a federal constitutional requirement and assuming that the corpus delicti rule was grounded in due process, the statute satisfied due process by demanding some indication of reliability. (In this opinion, the COA indicated that the uncorroborated statement would be insufficient to establish guilt beyond a reasonable doubt. Hopefully, the Supreme Court will correct this part of the COA ruling.).

Blakely. State v. Hughes, No. 81270-5. Spokane County. COA opinion reported at 142 Wn. App. 213 (2007). Blakely did not apply to indeterminate minimum sentences under former RCW 9.94A.712 that did not exceed the maximum sentence imposed. Thus, in a second degree child rape and second degree rape case, RCW 9A.44.076(1) and 9A.44.050(1)(b), the trial court should have considered the State's exceptional sentencing request.

DUI Sentencing. City of Seattle v. Winebrenner and City of Seattle v. Quezada, Nos. 81279-9 and 81280-2. COA opinion reported at 142 Wn. App. 43 (2007). In two DUI cases, there was error in the calculation of the prior offenses under RCW 46.61.5055 because the phrase "within seven years" designated the period before and after the arrest for a current offense; moreover, a revoked deferred prosecution for the current offense did not count as a prior offense for sentencing purposes.

Municipal Court Jurisdiction. City of Spokane v. Rothwell and City of Spokane v. Smith, No. 81271-3. COA opinion reported at 141 Wn. App. 680 (2007). Defendants' convictions were overturned where judge was not properly elected to position of municipal court judge because she was elected in county-wide election of district court seat rather than by city voters to municipal court position, contrary to RCW 3.46.063(1) and 3.46.070; judge had no authority to preside over the trials.

Forfeiture. In the Matter of the 1970 Chevrolet and In the Matter of the 2004 Nissan County, No. 81116-4. Snohomish County. COA opinion reported at 140 Wn. App. 802 (2007). Vehicle owners were not innocent owners under RCW 69.50.505(1)(d)(ii) and therefore vehicle was property forfeited because information of their son's past and present problems with drugs and unemployment would have led a reasonable person to further inquire into the vehicle's use.

Inverse Condemnation. Fitzpatrick v. Okanogan County, No. 81257-8. Okanogan County. COA opinion reported at 177 P.3d 716 (2008). A superior court erroneously granted the county and State summary judgment on the landowners' inverse condemnation claim where they, inter alia, had presented evidence that the waters held back by a dike would have otherwise flowed through natural side channels and rejoined the river and the character of the water was an issue of fact.

Contributory Negligence. Gregoire v. City of Oak Harbor, No. 81253-5. County. COA opinion is unpublished. Petition for review granted only on the issue as to the jury instruction as to contributing negligence and assumption of risk.

Negligent Investigation. Ducote v. Dep’t of Soc. & Health Servs., No. 81714-6. County. COA opinion reported at 144 Wn. App. 531 (2008). The statutory duty owed by DSHS under RCW 26.44.050 does not extend to stepparents.

Medical Malpractice. Ambach v. French County, No. 81107-5. COA opinion reported at 141 Wn. App. 782 (2007). Summary judgment in a doctor's favor was reversed because allegations of economic loss due to the increased cost of surgery over the cost of more conservative treatment were sufficient to satisfy the damages requirement of Washington's Consumer Protection Act. Since the claim was viable, the imposition of sanctions was also reversed.

Slayer Statute. In re Estate of Kissinger, No. 81328-1. COA opinion reported at 142 Wn. App. 76 (2007). In determining whether a son, who murdered his mother, was prohibited from sharing in proceeds of settlement of wrongful death claim under RCW 11.84.010 and .020 of slayer statute, case was remanded to determine whether son's mental illness prevented him from forming intent to kill and permitted him to share in proceeds of settlement.

Time for Trial. The 2003 amendments to the time for trial rulesupersede the decision in State v. Fulps, 141 Wn.2d 663, 9 P.3d 832 (2000). State v. Thomas, COA No. 59832-5-I (Sept. 2, 2008).

Search Incident to Arrest. A recent occupant of a vehicle, who is arrested in close temporal and spatial proximity to the vehicle. may not preclude the search simply by locking the vehicle. State v. Adams, COA No. 60401-5-I (Sept. 2, 2008).

Good Time Credits. A sentencing court’s award of credit for a certain number of days served does not include an award of good time. Good time can only be certified to DOC by the jail. Personal Restraint Petition of Erickson, COA No. 60020-6-I (Sept. 2, 2008).

First Degree Robbery of a Financial Institution. A jury in a bank note robbery may properly be instructed that the threat of force may be implied. State v. Shcherenkov, COA No. 35825-5-II (Sept. 3, 2008).

Paternity. Under RCW 26.26.540(2), an individual’s parentage petition, which was filed less than two months after the results of a deoxyribonucleic acid (DNA) test showed him to be the father, but more than two years after the child's mother acknowledged another man as the child’s father, was not filed within the statutory time limits. But because the trial court's order dismissing the individual’s parentage petition was issued in a proceeding in which the child's constitutional right to be a party to an action determining his paternity was denied, the matter must be remanded for the appointment of a guardian ad litem (GAL) to represent the child's best interests and his constitutionally protected interest in an accurate determination of his parentage. In re Parentage of Q.A.L., COA No. 36564-2-II (Sept. 3, 2008).

Land Use. The hearing examiner properly employed a burden-shifting framework when considering the property owner’s claim of a legal, nonconforming use of its property, and properly found that the property owner failed to carry its burden of proof. First Pioneer Trading Co. v. Pierce County, COA No. 31291-3-II (Sept. 3, 2008).

Growth Management Act. Futurewise is not barred from brining a challenge to a local GMA decision solely because Futurewise has advised a local citizen during the local citizen’s challenge to the local GMA decision. A county ordinance that defines "critical habitat" as only those areas designated by a state or federal agency through a formal statutory or rule-making process does not comply with the GMA. Stevens County v. Futurewise, COA No. 26038-1-III (June 26, 2008, ordered published on Sept. 4, 2008).

WEEKLY UPDATE FOR AUGUST 29, 2008

Pre-Trial Release. Because a urinalysis (UA) is a warrantless search and there is not any evidence that a weekly UA would increase the likelihood of appearance, the imposition of a UA as a standard condition of pretrial release is inappropriate. State v. Rose, COA No. 36269-4-II (August 26, 2008).

Double Jeopardy. The grant of a mistrial at the State’s request due to jury misconduct and/or bailiff misconduct, that was not supported by sufficient investigation and development of the record, and that was opposed by the defendant, barred the defendant’s retrial. State v. Robinson, COA No. 35623-6-II (Aug. 27, 2008).

WEEKLY UPDATE FOR AUGUST 22, 2008

Community Custody Prohibitions. Absent evidence that a drug offender actually utilized a cell phone or a handheld electronic storage device during the commission or her offense, the court cannot prohibit ownership of either item as a condition of community custody. The appellant’s constitutional challenge to the "possess no drug paraphernalia condition" is not ripe for review. State v. Zimmer, COA No. 36423-9-II (Aug. 19, 2008).

Contempt of Court. A trial court judge may not summarily find an attorney in contempt for non-appearance for a scheduled trial or hearing. State v. Jordan, COA No. 36027-6 (Aug. 19, 2008).

Self-Incrimination. A judge’s or prosecutor’s straightforward and non-coercive warning to a defense witness about that witnesses’ right against self-incrimination does not violate a defendant’s right to put on a defense. United States v. Jaeger, No. 06-30621 (9th Cir. Aug. 18, 2008).

Miranda. Under the Fifth Amendment, an interrogation by law enforcement officers in the suspect’s own home will turn the home into such a police-dominated atmosphere that the interrogation becomes custodial in nature and requires Miranda warnings will depend upon (1) the number of law enforcement personnel, the number of agencies represented, and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made. United States v. Craighead, No. 07-10135 (9th Cir. Aug. 21, 2008).

Franks and Computer Search Warrants. An affidavit’s failure to provide general information about hacking, IP Spoofing, or internet hijacking does not constitute a "deliberate or reckless omission of facts" that will support a Franks hearing. United States v. Craighead, No. 07-10135 (9th Cir. Aug. 21, 2008).

Strip Searches. A blanket policy of strip searching without reasonable suspicion of all individuals arrested and classified for housing in the general jail population violates the arrestees’ clearly established constitutional rights. Bull v. City and County of San Francisco, No. 05-17080 (9th Cir. Aug. 21, 2008).

WEEKLY UPDATE FOR AUGUST 17, 2008

Updates to Comprehensive Plans. A party may challenge a county's failure to revise aspects of a comprehensive plan that are directly affected by new or recently amended GMA provisions if a petition is filed within 60 days after publication of the county's seven year update. A party may challenge a county's revisions or failures to revise its UGA designations when there is a change in the population projection, if a petition is filed within 60 days after publication of the county's 10 year update. Thurston County v. Western Washington Growth Management Hearings Board, No. 80115-1 (August 14, 2008).

Taking a Motor Vehicle Without Owner’s Permission. Second degree TMV is not a lesser included offense of first degree theft. State v. Crittenden, COA No. 59809-1-I (Aug. 11, 2008).

Firearm Enhancements. The firearm sentence enhancement on a second degree assault conviction does not violate double jeopardy. State v. Kelley, COA No. 35944-8-II (Aug. 12, 2008).

File Sharing Software. An individual who installs file sharing software on his computer does not have a reasonable expectation of privacy in the files stored on his computer. The Fourth Amendment does not require police to obtain a search warrant before viewing files via a file sharing software program. United States v. Ganoe, No. 07-50195 (9th Cir. Aug. 15, 2008).

WEEKLY UPDATE FOR AUGUST 8, 2008

Parole. The ISRB did not abuse its discretion in denying parole to a prisoner who is an untreated sex offender. In Re PRP of Dyer, No. 79872-9 (Aug. 7, 2008). Justice Sanders penned the dissenting opinion.

On August 5, 2008, the Washington Supreme Court granted review in the following cases:

Second Appeals. State v. Kilgore, No. 81020-6. Pierce County. Whether a defendant who received an exceptional sentence pre-Blakely could appeal that sentence post-Blakely where his case was remanded following the vacation of some counts on appeal? COA opinion reported at 141 Wn. App. 817 (2007).

Post-Blakely Exceptional Sentence Appeals. A trial court must still enter written findings of fact and conclusions of law when imposing an exceptional sentence based upon a jury’s special verdict that an aggravating circumstance exists beyond a reasonable doubt. An appellate court will review the exceptional sentence under the following three prongs: (1) does the record support the jury's special verdict on the aggravating circumstances; (2) are the trial court's reasons for imposing an exceptional sentence substantial and compelling; and (3) did the trial court abuse its discretion by imposing a sentence that is clearly excessive? State v. Hale, COA No. 35928-6-II (Aug. 5, 2008).

2007 Blakely Fix. The 2007- post-Pillatos Blakely fix statute applies retroactively. This statute allows for the impaneling of juries on remand to consider whether an aggravating circumstance is present. State v. Mann, COA No. 26436-0-III (Aug. 7, 2008).

WEEKLY UPDATE FOR AUGUST 1, 2008

Public Disclosure Act. The identities of public school teachers who are the subjects of unsubstantiated allegations of sexual misconduct are exempt under the Public Disclosure Act. Letters of direction must be released to the public, but where a letter simply seeks to guide a teacher's future conduct, does not identify an incident of substantiated misconduct, and the teacher is not subject to any form of restriction or discipline, the name of the teacher and other identifying information must be redacted. Bellevue John Does 1-11 v. Bellevue School District, #405, No. 78603-8 (July 31, 2008). Justice Madsen authored the dissenting opinion.

Shoreline Management Act. Critical areas within the jurisdiction of the Shoreline Management Act (SMA) are governed only by the SMA. Futurewise v. West. WA. Growth Management Hearings Board, No. 80396-0 (July 31, 2008). Justice Chambers authored the dissenting opinion.

Sexually Violent Predators. The presumption of innocence and corpus delicti rule are based on rights of defendants facing criminal convictions that do not apply in SVP civil proceedings. In re Detention of Law, COA No. 59619-5-I (June 2, 2008, released for publication July 28, 2008).

Private Juror Voir Dire. The individual questioning of four jurors in the jury room with defense counsel’s acquiescence, violated the defendant’s right to a public trial. State v. Erickson, COA No. 35628-7-II (July 29, 2008). Judge Quinn-Brintnall dissented.

Sexually Violent Predators. RCW 71.09.090, as amended in 2005, is constitutional. In re Detention of Reimer, COA No. 35242-7-II (July 29, 2008).

Sexually Violent Predators. An detainee in an SVP proceeding may not challenge the lawfulness of his "custody" at the time of the commitment hearing in the SVP proceeding. The detainee must challenge his detention through other means. State v. Dudgeon, COA No. 36273-2-II (July 29, 2008).

Legal Financial Obligations. Despite the fact that DOC is deducting a portion of his inmate wages to contribute to his legal financial obligations, the inmate is not entitled to an evidentiary hearing on his motion for remission of costs. State v. Crook, COA No. 26338-0-III (May 29, 2008, publication ordered July 29, 2008).

WEEKLY UPDATE FOR JULY 25, 2008

ER 404(b) and Domestic Violence. Evidence of prior bad acts is admissible pursuant to ER 404(b) to assess a victim’s credibility versus his/her state of mind, and to prove the "reasonable fear of bodily injury" element of assault. State v. Magers, No. 79332-8 (July 24, 2008). Justice Madsen authored a concurring opinion that affirms the lead opinion’s themes, just finds that they did not apply to the facts of the instant case. Justice Charles Johnson authored the dissenting opinion.

Public Records Act. Once an agency implements a policy or recommendation, records pertaining to that policy or recommendation no longer fall within the ambit of the deliberative process exemption of the public records act (PRA). Here, records related to a lease should have been disclosed as the lease was executed before the records request was made. West v. Port of Olympia, COA No. 60723-5-I (July 21, 2008).

Public Records Act. Metadata in the electronic version of an e-mail sent by a private citizen to the mayor’s private e-mail account, that the mayor referred to in a public meeting, is subject to disclosure under the Public Records Act. The First Amendment does not protect the identity of the individual that originally e-mailed the mayor. The harddrive of the mayor’s personal computer is subject to a search to see if it has the e-mail with the metadata. Disapproving of the Secretary of State’s records retention guidelines, the Court holds that a print out of the e-mail, without the electronic metadata, is not an adequate substitute under the PDA. O’Neill v. City of Shoreline, COA No. 59534-2-I (July 21, 2008).

Claim Filing Statute. RCW 4.96.020(2) expressly precludes the district, which never appointed an agent to receive claims against it, from arguing that because Connelly's estate served its claim on the wrong person, the claim failed to toll the statute of limitations. Estate of Connelly v. Snohomish County PUD #1, COA No. 59942-9-I (July 21, 2008).

Confessions. Police are not required to electronically record custodial interrogations. State v. Turner, COA No. 59153-3-I (July 21, 2008).

Andress and Double Jeopardy. Double jeopardy does not bar the State from prosecuting the defendant for manslaughter after his second degree murder conviction was vacated pursuant to Andress. The jury’s response to the special interrogatory in the murder trial is of no consequence to double jeopardy because the jury was instructed that it did not have to unanimously agree on the alternate means of intentional or felony murder predicated on assault. State v. Scott, COA No. 58285-2-I (July 21, 2008).

Lane Travel. Washington State's requirement that automobile drivers remain within a single lane of travel "as nearly as practicable," RCW 46.61.140(1), does not impose strict liability. A vehicle crossing over a lane once for one second by two tire widths does not, without more, constitute a traffic violation justifying a stop by a police officer. State v. Prado, COA No. 59133-9-I (July 7, 2008).

Andress and Double Jeopardy. A defendant, who pled guilty to second degree felony murder predicated on assault and who contacted the State to negotiate relief under the Andress decision, could not have his conviction vacated by the State against his will. Double jeopardy principles bar the State from retrying the defendant for murder because (1) jeopardy attached when the State amended its charge and the defendant pled guilty to second degree felony murder; (2) jeopardy terminated when he successfully completed his sentence and the court discharged it, without his having challenged his conviction; and (3) the State recharged him with first degree murder for the same criminal act, in law and fact, as the act for which it had originally charged him by amended information and to which he had pled guilty. State v. Walters, COA No. 37336-0-I (July 22, 2008).

Pre-trial Diversion Programs. Yakima County’s "Friendship" Diversion program, a post-arraignment, pretrial diversion program for felonies, does not violate the Sentencing Reform Act. State v. Ashue, COA No. 25970-6-III (Mar. 25, 2008, released for publication on July 22, 2008).

Habitat and Species of Local Importance. The County is not barred from first asserting that neither the habitat nor the species were properly nominated for protection after three rounds of litigation. Stevens County v. Loon Lake Property Owners Assn., COA No. 25774-6-III (July 22, 2008).

DOSA. The suspended portion of a DOSA sentence can include time that arises from a sentencing enhancement. In re Post Sentencing Petition of Gutierrez, COA No. 26875-6-III (July 24, 2008).

WEEKLY UPDATE FOR JULY 18, 2008

Probable Cause. A moderate odor of marijuana emanating from a passenger vehicle does not probable cause to arrest each of the occupants in the vehicle. Const. art. I, § 7 requires individualized probable cause for each occupant of the vehicle. State v. Grande, No. 81068-1 (July 17, 2008). [Editor’s note: This opinion represents a rejection of the rule announced by the United States Supreme Court in Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003).]

Sexual Contact. Ejaculation onto the victim is a "touching" for purposes of "sexual contact." State v. Jackson, COA No. 60361-2-I (July 14, 2008).

Right to Be Present. A drug court cannot hold a bench trial upon stipulated facts when the defendant is not present. State v. Pruitt, COA No. 60094-0-I (July 14, 2008).

Interfering With the Reporting of Domestic Violence. An information that alleges the crime of interfering with the reporting of domestic violence must specify the underlying crime of domestic violence. An information that is challenged for the first time on appeal sufficiently defines the charge of interfering if the count alleging the crime contains all the statutory elements and makes clear that the underlying crime of domestic violence is delineated elsewhere in the information. There are three alternative means of committing the offense of interfering with the reporting of domestic violence. Only the means supported by substantial evidence and included in the information may be submitted to the jury. State v. Nonog, COA No. 60248-9-I (July 14, 2008).

Sealing Court Records. Documents filed in support of a motion are only subject to sealing under the compelling interest standard, regardless of whether the documents were considered by the court. The fact that some of the allegations contained in the documents are embarrassing or may harm a person’s business interests does not establish a compelling interest sufficient to overcome the presumption of open courts. Treseler v. Treadwell, COA No. 59092-8-I (May 5, 2008, publication ordered July 14, 2008).

SVP. It is error for the trial court in an SVP proceeding to admit evidence regarding less restrictive alternatives and the content of special commitment center treatment program phases in which the defendant has not participated. In re Detention of Post, COA No. 55572-3-I (July 14, 2008). Judge Becker authored a dissenting opinion.

County Roads. RCW 35.02.180, which provides that "[t]he ownership of all county roads located within the boundaries of a newly incorporated city or town shall revert to the city or town and become streets as of the official date of incorporation," does not include an unimproved right-of-way. City of Spokane Valley v. Spokane County, COA No. 26268-5-III (July 15, 2008).

Batson Challenges. When the race-neutral reasons offered by a prosecutor for the striking of minority jurors also apply to unchallenged white jurors, the non-racial reasons will be considered pretexts for race and a new trial will be ordered. Green v. LaMarque, No. 06-16254 (9th Cir. July 17, 2008).

WEEKLY UPDATE FOR JULY 11, 2008

Double Jeopardy. Double jeopardy did not preclude retrial on an aggravating factor following a reversal of a conviction. State v. Eggleston, No. 77756-0 (July 10, 2008). Justice Sanders authored a concurring opinion. Justice Chambers authored a separate concurring opinion.

Jail Phone Calls. Calls made by a jail inmate were not "private" for purposes of the Washington privacy act, chapter 9.73 RCW, where a sign was posted near the jailhouse telephones that warned the users that calls would be recorded and an automatic message stated that the calls would be recorded played for every person making or receiving a call from the telephones. The majority does warn, however, that

State v. Modica, No. 79767-6 (July 10, 2008). Justice Sanders authored the dissenting opinion.

The Washington Supreme Court granted review in the following cases on July 8, 2008:

DOSA. A trial court cannot grant a conditional DOSA that is dependent upon DOC finding that the offender is amenable to treatment. The trial court must have the evaluation result in hand before a DOSA can be imposed. A trial court cannot amend a sentence by converting a standard range sentence to a DOSA sentence after the judgment and sentence became final. State v. Harkness, COA No. 59748-5-I (July 7, 2008).

Failure to Register as a Sex Offender. RCW 9A.44.130 imposes one duty – to register with the sheriff. Subsection (11)(a) contains the only punishable offense – knowingly failing to register with the county sheriff or notify the county sheriff, or changing one’s her name without notifying the county sheriff and the state patrol. The definition of registration and procedure for registration are set forth in the remaining subsections merely articulate the definition of continuing compliance. They do not define the elements or create alternative means of committing the crime of failure to register as a sex offender. State v. Peterson, COA No. 59722-1-I (July 7, 2008).

Land Use. King County Ordinance 15053 §14 (KCC 16.82.150), which limits clearing on property zoned rural area residential (RA) to a maximum of 50 percent, depending on the size of the parcel, violates RCW 82.02.020, which generally prohibits counties from imposing "any tax, fee, or charge" on the development of land, subject to certain exceptions. A local government’s ordinances that are adopted in response to the Growth Management Act are not exempt from the requirements of RCW 82.02.020. Citizens’ Alliance for Property Rights v. Sims, COA No. 59416-8-I (July 7, 2008).

Trial De Novo. A party who requests a trial de novo after arbitration, obtains an unfavorable judgment at trial, and then successfully appeals that judgment may, before the second trial, withdraw his request for the trial de novo. Hudson v. Hapner, COA No. 35797-6-II (July 8, 2008).

WEEKLY UPDATE FOR JULY 3, 2008

Public Records Act. The Department of Corrections interception of documents DOC sent to a prisoner in response to the prisoner’s public records request as contraband under DOC’s mail policy applicable to all incoming and outgoing materials, did not violate the public records act. Livingston v. Cedeno, No. 79068-4 (July 3, 2008). Justice Jim Johnson authored the dissenting opinion. [Editor’s note: The court unanimously "agrees the Department may not deny a public records request based on the requester's status as an inmate." Majority opinion at 11. See also Dissent at 3.]

Claim Filing Statute. A bona fide attempt to meet the requirement in RCW 4.96.020 to state the claimant's actual residence at the time of presenting the claim and for a period of six months before the claim arose substantially complies with the statute so long as the information provided enables the government entity, by reasonable diligence, to determine where the claimant resided at the relevant times. A claim made under RCW 4.96.020 was not defective for failing to state an amount where the wrongful termination claimant wrote on the claim form "undetermined pending further investigation and discovery" and then listed the elements of his claim as including, among other things, wages and benefits "as well known to the city since termination." Renner v. City of Marysville, COA No. 60509-7-I (June 30, 2008).

Protection Order Violations. The State must prove beyond a reasonable doubt that a defendant "knows" that his victim resides at the home he is being prosecuted for going to in violation of the protection order. Evidence that the protected person kept her personal belongings at her mother’s house, that she lived there off and on, and that she received mail there, coupled with the defendant’s testimony that he "assumed" the protected person lived with her mother, was sufficient to satisfy the State’s burden. State v. Vant, COA No. 35779-8-II (July 1, 2008).

Community Supervision. Fourth degree assault with sexual motivation is not a qualified sex offense. RCW 13.40.020(4) limits community supervision to one year for this non-sex offense. State v. C.D.C., COA No. 36431-0-II (July 2, 2008).

Arrest on Quashed Warrant. The public duty doctrine precluded an individual, who was arrested on a warrant that the court had ordered quash, from maintaining a negligence lawsuit against the county. Vergeson v. Kitsap County, COA No. 35313-0-II (July 1, 2008).

Protective Sweeps. Officers improperly entered a house that appeared vacant during the day, but which had lights and music emanating from it at night, where there was no evidence of immediate risk to health or safety. State v. Ibara-Raya, COA No. 25734-7-III (July 1, 2008).

Premeditation. Sufficient evidence supported the defendant’s conviction for first degree premeditated murder where the defendant had a long history of beating the victim, his right hand was swollen and stained with the victim’s blood, blood spatter from the victim appeared in several distinct locations in the house, and the victim sustained at least 42 separate blunt force injuries. State v. Sherrill, COA No. 25193-4-III (July 1, 2008). Judge Schultheis authored a dissenting opinion.

True Threats. The jury in a felony harassment case must be instructed on the definition of "true threat." The failure to do so, however, may be harmless error. State v. Schaler, COA No. 25919-6-III (July 3, 2008). Judge Sweeney authored a dissenting opinion.

Fed. R. Civ. Pro. 8(a)(2). A plaintiff’s 81-page complaint that was coherent, well-organized, and stated viable claims, should not have been dismissed for containing excessively detailed factual allegations. Hearns v. San Bernardino Police Department, No. 05-56214 (9th Cir. July 1, 2008).

WEEKLY UPDATE FOR JUNE 27, 2008

Right to Counsel. A criminal defendant’s initial appearance before a magistrate

judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Rothgery v. Gillespie County, Texas, No. 07-440 (June 23, 2008).

Death Penalty. While reaffirming the constitutionality of the death penalty for certain murders, the Court holds that the death penalty is unconstitutional for the crime of rape of a child. Kennedy v. Louisiana, No. 07-343 (June 25, 2008).

Forfeiture Doctrine. The forfeiture doctrine only allows for the admission of unconfronted testimony when the defendant acted with an intent to prevent a witness from testifying. The Court noted that acts of domestic violence are often intended to dissuade a victim from resorting to outside help, stating that a defendant’s prior abuse, or threats of abuse, intended to dissuade a victim from resorting to outside help would be highly relevant to determining the intent of a defendant’s subsequent act causing the witness’s absence, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. The Court also noted that a battered woman’s statements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment are nontestimonial, and only subject to exclusion by hearsay rules, which states are free to alter. Giles v. California, No. 07-6053 (June 25, 2008). [Corrected Editor’s note: This case does change Washington law, as State v. Mason, 160 Wn.2d 910 (2007), previously indicated that specific intent to prevent testimony was unnecessary.]

Second Amendment. The second amendment guarantees the individual right to possess and carry weapons in case of confrontation. The right, however, is not without limits. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." District of Columbia v. Heller, 07-290 (June 26, 2008).

Involving a Minor in a Drug Transaction. The offense of involving a minor in a drug transaction, former RCW 69.50.401(f) (1998), recodified as RCW 69.50.4015, does not encompass the act of merely allowing a minor to remain present during transactions that take place in the defendant’s residence. The offense, however, does apply when a defendant commits an affirmative act to bring or attempt to bring a minor into the criminal enterprise, regardless of whether the minor knows that he is being used to commit a crime. State v. Flores, No. 79135-0 (June 26, 2008). Justice Sanders dissented from the majority’s holding that the improper admission of some testimonial statements by the defendant’s wife was harmless error. Justice Owens dissented from the majority’s interpretation of RCW 69.50.401(f) and from the majority’s invalidation of an exceptional sentence imposed pursuant to a judicial finding that the defendant’s conduct satisfied the major VUCSA aggravator.

Resentencing. A defendant who is resentenced after discovery of an error in the initial sentencing is not denied equal protection under the law or due process by the inclusion in his offender score of convictions entered after the initial sentencing, but before the resentencing. State v. Bryan, COA No. 59576-8-II (June 23, 2008).

Claim Filing Statute. The claim filing statute, RCW 4.96.020(4), does not toll an action brought under 42 U.S.C. § 1983. Southwick v. Seattle Police Office John Does 1-5, COA No. 59283-1-I (May 5, 2008, ordered published June 23, 2008).

Jury Demand. A previously waived right to jury trial in a civil case will not be revived by the filing of an amended or supplemental complaint unless the amended or supplemental complaint raises new issues or changes the issues raised in the original complaint. Saldivar v. Momah, COA No. 34891-8-II (June 24, 2008).

Anti-SLAPP Statute. RCW 4.24.510 only provides immunity with respect to communications to a public officer who is authorized to act on the communication. Once the communicant becomes a private plaintiff seeking private relief in a civil lawsuit, the communicant ceases to be among the class of persons who can claim protection from liability under RCW 4.24.510. Saldivar v. Momah, COA No. 34891-8-II (June 24, 2008).

ER 404(b). Evidence that the twin defendants impersonated each other on occasion was admissible under ER 404(b), even though the impersonation occurred at different locations and did not result in the same harm alleged by the plaintiff. Saldivar v. Momah, COA No. 34891-8-II (June 24, 2008).

Service of Search Warrants. Officers violated the defendant’s Fourth Amendment rights by removing two women from an SUV at gunpoint, detaining them, and searching them, solely because the SUV was parked in the driveway of a residence for which the officer’s had a search warrant. State v. Smith, COA No. 26010-1-III (Apr. 24, 2008, publication ordered June 24, 2008).

Terry Stop of Witnesses. Police may not stop a potential witness when investigating a disturbance complaint when there exists no exigent circumstances. State v. Dorey, COA No. 25938-2-III (June 26, 2008). [Editor’s note: This opinion merely adds to the confusion arising from Division Two’s fractured opinion in State v. Carney, 142 Wn. App. 197 (2007), petition for review filed (Wash. Jan 23, 2008) (No. 81124-5), and Division One’s opinion in State v. Mitchell, COA No. 58935-1-I (order granting motion to publish June 17, 2008).]

Dorm Search. Police violated a Washington State University student’s Fourth Amendment rights by conducting a building-wide search of the interior hallways of the dormitory without a warrant. State v. Houvener, COA No. 25938-2-III (June 26, 2008). Judge Brown authored a concurring opinion.

Land Use. The superior court lacked jurisdiction over a citizen challenge to a Walla Walla City Council decision to amend the city's comprehensive plan governing certain property. The proper method to challenge the decision was to raise a complaint to the Growth Management Hearings Board (GMHB). Coffey v. City of Walla Walla, COA No. 26277-4-II (June 26, 2008).

Death Penalty. King County death row inmate, Cal Brown, did not receive constitutionally ineffective assistance of counsel. Mr. Brown’s petition for a writ of habeas corpus is denied. Brown v. Uttecht, No. 04-35598 (9^th Cir. June 27, 2008).

Family and Medical Leave Act. The FMLA allows a plaintiff to recover damages for absences from work that were caused by an emotional condition that itself resulted from the employer’s wrongful denial of FMLA leave. Farrell v. Tri-County Metropolitan District of Oregon, No. 06-35484 (9^th Cir. June 27, 2008).

WEEKLY UPDATE FOR JUNE 20, 2008

Pro Se Litigants. The Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Indiana v. Edwards, No. 07-208 (June 19, 2008).

Unemployment Benefits. RCW 50.20.050(2), the statutory list of reasons that do not disqualify an individual from benefits, is not an exhaustive list of good cause reasons to voluntarily leave a job without losing benefit eligibility. Spain v. Employment Sec. Dep’t., No. 79878-8 (June 19, 2008).

Criminal Libel Statute. The criminal libel statute, RCW 9.58.010, is facially unconstitutional for overbreadth and vagueness. Parmelee v. O’Neel, COA No. 35652-0-II (June 19, 2008).

Former RCW 26.50.110. A defendant’s contact with a protected person that did not occur at one of the enumerated prohibited locations and/or did not involve acts or threats of violence is not a crime under former RCW 26.50.110(1)(2000). State v. Hogan, COA No. 35534-5-II (June 19, 2008). Judge Quinn-Brintnall dissented. [Editor’s note– The Hogan opinion conflicts with Division One’s opinion in State v. Bunker, ___ Wn. App. ___, 183 P.3d 1086, 2008 WL 1932670 at *7 (2008).]

Former RCW 26.50.110. A defendant’s contact with a protected person that did not occur at one of the enumerated prohibited locations and/or did not involve acts or threats of violence is not a crime under former RCW 26.50.110(1)(2000). State v. Madrid, COA No. 35952-9 (June 17, 2008). [Editor’s note– The Hogan opinion conflicts with Division One’s opinion in State v. Bunker, ___ Wn. App. ___, 183 P.3d 1086, 2008 WL 1932670 at *7 (2008).]

Civil Infractions. RCW 46.63.070 allows a court to defer a finding on some traffic infractions. The statute, however, does not require a judge to defer a finding. Pierce County v. Magee, COA No. 34261-8-II (June 18, 2008) (amended opinion).

Land Use. A builder may not, to meet code density requirements, include in its plat proposal five neighboring and previously platted and developed lots. Milestone Homes, Inc. v. City of Bonney Lake, COA No. 36441-7-II (June 17, 2008).

Child Sexual Abuse. A mistrial should have been granted when charges against one child were dismissed when that child refused to testify, as the jury had already heard significant hearsay testimony regarding that child’s allegations. State v. Babcock, COA No. 23491-6-III (June 19, 2008).

Adoption of Ordinances. A city clerk’s duty to attest to a newly enacted ordinance was entirely ministerial and the clerk's failure to attest to the ordinance did not invalidate the ordinance.

City of Wenatchee v. Owens, COA No. 26152-2-III (June 19, 2008).

Land Use. A developer’s appeal from an adverse LUPA ruling must be dismissed as moot because, with the passage of time, the permit expired due to the developer's failure to meet deadlines required by the permit. Kelly v. County of Chelan, COA No. 25378-3-III (June 19, 2008).

Land Use. Rock quarry developers could not challenge highway improvement conditions that they had affirmatively agreed with DOT to complete. Joe Humbert/Birch Creek Construction v. Walla Walla County, COA No. 26081-0-III (June 19, 2008).

Text Messages and Government Employees. Users of text messaging services have a reasonable expectation of privacy in their text messages stored on the service provider’s network. Government employers may not audit the content of text messages sent over government supplied equipment on a government paid for account unless there is a clear policy establishing that such messages are subject to review. The existence of a public records law does not overcome the employee’s Fourth Amendment rights. Quon v. Arch Wireless Operating Co., No. 07-55282 (9th Cir. June 18, 2008).

WEEKLY UPDATE FOR JUNE 13, 2008

Public Employees. Public employees may not bring their discrimination complaints to federal court when they are alleging that adverse job actions resulted from arbitrary or malicious reasons unique to their situation. Enquist v. Oregon Dep’t of Agriculture, No. 07-474 (June 9, 2008).

Andress. Neither the mandatory joinder rule, CrR 4.3.1(b)(3), nor double jeopardy principles prevent the State from recharging this defendant, whose convictions for second degree felony murder was vacated under In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), with first degree manslaughter as jeopardy was never terminated on intentional second degree murder and manslaughter is a lesser included offense of that alternative means of committing second degree murder. State v. Ramos, No. 77347-5 (June 12, 2008). Justice Sanders authored the dissenting opinion.

Andress. A manslaughter conviction that was vacated on double jeopardy grounds may be reinstated when the remaining conviction for felony murder was subsequently vacated pursuant to In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). State v. Schwab, No. 79262-3 (June 12, 2008). Justice Sanders authored a dissenting opinion. Justice Jim Johnson authored a separate dissenting opinion.

SVP. The 2005 amendment to the sexually violent predator act is not retroactive. In Re Detention of Smith, No. 80144-4 (June 12, 2008).

SVP. An SVP detainee may be held in contempt for refusing to submit to a court order requiring compliance with a psychological exam that was ordered as part of the detainee’s evidentiary hearing to determine if he still meets the definition of a sexually violent predator. The trial court’s sanction of a stay of proceedings is appropriate. In Re Detention of Young, No. 79747-1 (June 12, 2008). Justice Sanders authored the dissenting opinion.

Rule Changes. The following court rule changes that are of interest to prosecutors were adopted by the Washington Supreme Court on June 5, 2008. The effective date of these rule changes appear next to each rule.

GR 14. Effective September 1, 2008. GR 14(a) has the following sentence added to it: "This rule applies to attachments unless the nature of the attachment makes compliance impractical." GR 14(b) is amended to speak of "trial or hearing" exhibits.

MAR 3.1. Effective September 1, 2008. An arbitrator must be a member in good standing of the WSBA. The court is authorized to remove an individual from a list of qualified arbitrators for good cause.

RPC 1.8. Effective September 1, 2008. Prohibits a lawyer from making or participating in making an agreement with a governmental entity for the delivery of indigent defense services if the terms of the agreement obligated the contracting lawyer or law firm to bear the cost of providing conflict counsel; or to bear the cost of providing investigation or expert services unless a reasonable amount for such costs is specifically designated in the agreement in a manner that does not adversely affect the income or compensation allocated to the lawyer, law firm, or law firm personnel. The amendment also makes it a conflict to knowingly accept compensation for the delivery of indigent defense services from a lawyer who has entered into a current agreement in violation of the above.

ER 408. Effective September 1, 2008. The rule has been amended to conform with case law. The rule now begins with "In a civil case, evidence . . ."

ER 410. Effective September 1, 2008. A new subsection is added to the rule that specifies that "[e]vidence of payment or an offer or agreement to pay (i) to compromise a misdemeanor pursuant to RCW Chapter 10.22, or (ii) for a liability described in RCW 4.24.230, shall not be admissible in any civil or criminal proceeding."

RAP 2.2(b)(1) and RALJ 2.2(c)(1). Effective September 1, 2008. Consistent with case law, the rules now expressly authorize the government to appeal an adverse Knapstad ruling.

CrR 7.8(c) and CrRLJ 7.8(c). Effective September 1, 2008. Establishes a formal procedure for Knapstad motions. The new court rule incorporates significant case law.

JuCR 7.15. September 1, 2008. This court rule sets out the procedure by which a juvenile offender may waive his or her right to counsel. The rule contains a written waiver form, that must be signed by both the juvenile and the juvenile’s lawyer.

Blood Alcohol. A sufficient foundation was laid for the admission of the defendant’s blood alcohol test where the toxicologist testified that vials used for the collection of samples for a blood alcohol test are provided by the manufacturer with powdery chemicals, which he identified as potassium oxalate and sodium fluoride, that the labels on the vials that contained the defendant’s blood indicated that the vials contained sodium fluoride and potassium oxalate, that if those chemicals were not present the blood would be clotted and no alcohol would be detected in the samples, and that the blood in the samples were not clotted and alcohol was detected in the samples. State v. Brown, COA No. 25892-1-III (June 10, 2008).

Alternative Means. When a defendant is charged with more than one alternative means of committing a crime that each carry different seriousness levels, a trial court must use the lowest seriousness level in sentencing the defendant absent a special interrogatory indicating the jury unanimously finds that the defendant committed the offense by a means with a higher seriousness level. When there is a special interrogatory indicating that jury unanimously finds the defendant committed a higher seriousness level alternative, the sentencing court must impose a penalty from the higher standard range. State v. Brown, COA No. 25892-1-III (June 10, 2008).

Identification. An officer does not seize someone who has exited a vehicle and is walking away by asking the individual for identification to verify that he is not another person who is suspected of committing a crime. State v. Vanderpool, COA No. 26402-5-III (June 10, 2008).

Early Release. Washington state law creates a liberty interest in an inmate’s early release into community custody that is protected under the Due Process Clause of the Fourteenth Amendment. DOC may deny release only if it finds one of the statutory criteria listed in RCW 9.94A.728(2)(d) is met. Carver v. Lehman, No. 06-35176 (9th Cir. June 9, 2008).

WEEKLY UPDATE FOR JUNE 6, 2008

Private Search Doctrine. The private search doctrine, which provides that a warrantless search by a state actor does not offend the Fourth Amendment if the search does not expand the scope of the private search, is inapplicable under Const. art. I, § 7. State v. Eisfeldt, No. 81005-2 (June 5, 2008). Justice Madsen authored the concurring opinion.

On Tuesday, June 3rd, the Washington Supreme Court accepted review in the following cases:

Double Jeopardy. State v. Thomas, No. 80643-8. Pierce County. Grant on all but one issue (prosecutorial misconduct issue). Defendant was found guilty of premeditated first degree murder and the crime was aggravated by concealment; the trial court (Washington) sentenced him to death. On appeal, the sentence was reversed and remanded for a new trial on the aggravating circumstances or for resentencing. On remand, a jury found the murder was aggravated by concealment and furtherance of burglary, and defendant was sentenced to life without parole. Defendant appealed contending the trial court had no authority to empanel a jury, double jeopardy barred rehearing on the aggravating circumstances, and the jury instructions were faulty. The appellate court disagreed, finding first that the supreme court authorized the trial court, on remand, to sentence defendant for premeditated murder or empanel a jury to determine the existence of aggravating factors; the supreme court issued its ruling on the remedy, and the appellate court thus could not revisit this ruling. Double jeopardy was not implicated because the supreme court ordered a rehearing after defendant's initial appeal and, therefore, his case was never final. The supreme court did not rule that the evidence was insufficient to support an aggravating factor; thus, double jeopardy did not bar a rehearing on that sentencing factor. Contrary to defendant's assertion, RCW 10.95.020 (1995) did not require that defendant committed the aggravating circumstances when the State sought a punishment of life without parole. COA opinion is unpublished.

Competency to Stand Trial. State v. Heddrick, No. 80841-4. King County. In these consolidated cases involving felony harassment and custodial assault, the defendant argued that the trial court violated his right to due process by finding him competent to stand trial without observing adequate procedural safeguards because the trial court proceeded to trial without an evidentiary hearing. The court of appeals disagreed. Defendant's own expert examined him for the second time and concluded that he was competent to stand trial. That satisfied defense counsel that defendant was competent. Defendant did not make a compelling argument that an evidentiary hearing would have added anything under the circumstances. No other expert had examined him or come to a different conclusion about his competence at that time. Moreover, the record did not indicate that any issues regarding competency arose during either of the two trials that followed. Balanced against the State's interest in trying defendant for his crimes, an evidentiary hearing was not required and defendant received the due process to which he was entitled, notwithstanding that the trial court did not follow the statutory procedures of RCW 10.77.060. COA Opinion is unpublished.

Offender Score. State v. Knippling, No. 80848-1. Spokane County– State petition for review. Challenge to the inclusion of a "strike" offense on the grounds that the defendant was a juvenile when the crime was committed and the State did not establish that he had been declined in juvenile court prior to the entry of the adult conviction. COA Opinion reported at 141 Wn. App. 450 (2007).

Probation Search. State v. Winterstein, No. 80755-8. Cowlitz County. Defendant, who was under the supervision of a community corrections officer (CCO), was arrested and convicted after the CCO, based on a tip, searched defendant's residence and discovered a methamphetamine lab in a trailer on the property. On appeal, the court held that the trial court did not err by refusing to give defendant's jury instruction on accomplice liability because the instruction given properly informed the jury of applicable law and allowed the defense to argue its theory of the case. The court held that the evidence was sufficient to support defendant's conviction because: (1) officers saw two methamphetamine pipes in defendant's bedroom; (2) another man who lived in the mobile home on the property testified that defendant helped bring the travel trailer onto the property and hooked up electricity to it; and (3) two drug store employees testified that defendant regularly bought pseudoephedrine-based cold medicines. The court further held that specific and articulable facts supported the CCO's belief that defendant still lived in the mobile home and therefore the search was not improper. COA Opinion reported at 140 Wn. App. 676 (2007).

Removal of Juror. State v. Depaz, No. 80574-1. King County. Defendant appealed a judgment of a Washington trial court that convicted him of one count of first degree rape, arguing that the trial judge erred in excusing a deliberating juror. The court concluded that the trial judge did not abuse his discretion in excusing the juror. The basis for the decision to excuse the juror was a violation of the trial judge's instruction to not discuss the case with anyone but the other jurors during deliberations. The trial judge excused the juror for cause pursuant to RCW 2.36.110, not because of her views on the sufficiency of the evidence, but because she was not candid about her discussion of the case with her husband and committed misconduct by discussing the case with him. The trial judge was uniquely situated to decide whether the juror should be excused. There was no suggestion in the record that the other jurors wanted the juror removed because of her views on the sufficiency of the evidence. COA decision is unpublished.

Physical Control. State v. Nguyen, No. 80752-3. King County. Is physical control a lesser included offense of DUI? Granted on lesser issue only. COA Opinion is unpublished.

Brady and Police Officers. Kitsap County Deputy Sheriffs Guild v. Kitsap County, No. 80720-5. Kitsap County. Was a binding arbitration order to reinstate a deputy sheriff properly set aside as violative of public policy where the arbitrator sustained 23 counts of misconduct based upon the deputy sheriff’s acts of dishonesty. COA opinion reported at 140 Wn. App. 516 (2007).

Washington Minimum Wage Act. Almquist v. City of Redmond, No. 80804-0. Having reached an impasse in bargaining, a police association and the city went into statutory interest arbitration. The arbitration award included retroactive pay raises for the employees. The employees sued the city on the ground that the retroactive pay became due as of the day of the arbitrator's award and should have been paid on the next payday after the award instead of two months later. The trial court entered judgment for the city, and this appeal followed. In affirming, the appellate court determined that, because the precise date when the retroactive payments were "due" was not fixed by statute, judgment, or contract, the trial court properly entered judgment for the city. The interest arbitration award did not create an immediate obligation to pay money to the employees. The employees cited no authority demonstrating that the retroactive pay raises awarded by the arbitration decision were due at any time before the city paid them. As there was no unlawful delay, the employees did not show a violation of the payment interval rule under WAC 296-126-023 and WAC 296-128-035 or the wage payment statutes. COA Opinion reported at 140 Wn. App. 402 (2007).

LUPA. Post v. City of Tacoma, No. 80684-5. Appellant property owner sued respondents, a city, a collection agency, and others, claiming that the fines imposed under the city's building and structures code were excessive, unconstitutional, and outside the city's statutory authority. The Washington trial court granted summary judgment to the city. The owner challenged the judgment. COA held the claims were barred due to the owner’s failure to comply with LUPA. COA Opinion reported at 140 Wn. App. 155 (2007).

Insurance Law. Am. Best Food, Inc. v. Alea London, Ltd., No. 80755-8. Duty to defend case. COA Opinion reported at 138 Wn. App. 674 (2007).

Asbestos Case. Lunsford v. Saberhagen Holdings, Inc., No. 80728-1. COA Opinion reported at 139 Wn. App. 334 (2007).

Workmen’s Comp. Tomlinson v. Puget Sound Freight Lines, No. 80811-2. Calculation of a permanent partial disability award. COA Opinion reported at 140 Wn. App. 845 (2007).

Consumer Protection Act. Michael v. Bright Now! Dental, Inc, No. 80665-9. Peridontist’s use of cow bone for grafting after the consumer specifically requested that no animal products be used. COA Opinion reported at 140 Wn. App. 139 (2007).

Shareholder Action. Nelson v. Westport Shipyard, Inc, No. 80672-1. COA Opinion reported at 140 Wn. App. 102 (2007).

Second Degree Theft. A credit card that is stolen from the mail before the account holder actually has possession of it and before it is activated is an "access device" under RCW 9A.56.010. State v. Clay, COA No. 59648-9-I (June 2, 2008).

Custodial Interference. The offense of custodial interference does not contain as an element the defendant's knowledge of a custody order's validity. The validity of the order is not a jury question. Instead, the judge determines the custody order's validity as part of its "gate- keeping" function. State v. Boss, COA No. 59573-3-I (June 2, 2008).

Indian County Jurisdiction. A tribe’s grant of a highway easement to the State does not terminate the tribe’s interest in the land over which the highway runs. Accordingly, the State may not prosecute an Indian for an offense unrelated to the traffic laws that is committed on the highway. State v. Pink, COA No. 36485-9-II (June 3, 2008).

Amendment of Information. State v. Pelkey, 109 Wn.2d 484 (1987), does not prohibit an amendment of charges made after the State rests, where the State and defense agreed to the amendment before the State rested its case in chief, and the prosecutor merely failed to put the appropriate motion on the record before resting. State v. Hockaday, COA No. 35976-6-II (June 3, 2008).

Individual Voir Dire. Questioning some jurors in open court, out of the presence of the rest of the venire, does not violate the defendant’s right to a public trail because jurors become officers of the court when sworn to serve and are not members of the general public. Thus, Bone-Club factors need not be addressed on the record. State v. Vega, COA No. 24889-5-III (June 2, 008).

LUPA. RCW 36.70C.070(4), which requires a party filing a Land Use Petition Act (LUPA) petition to attach a copy of the decision being appealed to the petition, is a procedural requirement, not a jurisdictional threshold requirement. Keep Watson Cutoff Rural v. Kittitas County, COA No. 26202-2-III (June 5, 2008).

WEEKLY UPDATE FOR MAY 30, 2008

Collateral Attacks. The superior court erred by equitably tolling the one-year time limit for filing collateral attacks contained in RCW 10.73.090, where the petitioner first filed his motion to vacate 8 years after the judgment and sentence had been entered. Equitable tolling under the circumstances presented here does not serve any of the policies underlying RCW 10.73.090. The court’s routine destruction of its records provides no basis for equitable tolling. City of Bellevue v. Benyanimov, COA No. 59243-2-I (May 27, 2008).

Crime-Related Prohibitions. A condition prohibiting the defendant from accessing the internet without prior approval from his community custody officer or treatment provider is not a proper crime-related prohibition in a rape case. The State’s argument that allowing the defendant unfettered internet access to inappropriate sexual material would increase his risk of reoffending and thus endanger the community must fail as there is no evidence that the defendant accessed the internet before the rape, or that the defendant used the internet to contact and lure the victim into an illegal sexual encounter. The court, however, notes that "[o]ur holding does not preclude control over internet access being imposed as part of sex offender treatment if recommended after a sexual deviancy evaluation." State v. O’Cain, COA No. -I (May 27, 2008).

CrR 7.8. Under the 2007 version of CrR 7.8(c)(2), the superior court’s only options in dealing with an untimely motion to vacate judgment is to transfer the motion to the court of appeals for handling as a personal restraint petition. State v. Smith, COA No. 36858-7-II (May 28, 2008). Editor’s note: The rule change prevents the appointment of counsel to represent the defendant on his appeal from the superior court’s dismissal of the motion to vacate as untimely.

Mental Health Commitments. The State is solely responsible for the care and treatment of long-term public mental health patients under the Involuntary Treatment Act, chapter 71.05 RCW. Former WAC 388- 865-0203 and the contract provisions incorporating it are invalid. The 2006 amendments to chapters 71.05 and 71.24 RCW, Laws of 2006, ch. 333, §§ 103, 301 (codified at RCW 71.05.026 and RCW 71.24.370), pass constitutional muster. These statute bar future lawsuits by the counties against the state over the state’s actions in caring for long-term public mental health patients. Pierce County v. State, COA No. 34423-8-II (May 28, 2008).

Search Warrants. A search warrant that describes particular documents authorizes the seizure of a computer when the searching agents reasonably believes that documents specified in the warrant would be found stored in the computer. In this respect, computers are treated no differently than traditional file cabinets or home libraries. United States v. Giberson, No. 07-10100 (9th Cir. May 30, 2008).

WEEKLY UPDATE FOR May 23, 2008

Child Pornography. Section 2252A(a)(3)(B), which generally prohibits offers to provide and requests to obtain child pornography, is not overbroad under the First Amendment. Section 2252A(a)(3)(B) is not impermissibly vague under the Due Process Clause. United States v. Williams, No. 06-694 (May 19, 2008).

Blakely. The trial court could not convene a jury to determine the existence of an aggravating circumstance in any case tried prior to the 2005 Blakely statute. The Court does not reach whether the State can seek the imposition of an exceptional sentence under the 2007 statute that allows for the convening of a jury. State v. Davis, No. 79068-0 (May 22, 2008). Justice Jim Johnson authored the dissenting opinion.

Frisks. An officer who encountered an individual who appeared to be under the influence of methamphetamine in a public area of the DSHS building had no basis for conducting a frisk, as the intoxicated individual offered threatening gestures or words and remained seated. State v. Setterstrom, No. 79690-4 (May 22, 2008).

Expert Witnesses. A judge’s finding in another SVP case that the expert’s methodology was not generally accepted in the expert’s field was inadmissible since the judge in the prior SVP case is not an expert in the field. The prior judge’s opinion was also inadmissible as hearsay. In re the Detention of Pouncy, COA No. 59034-1-I (May 19, 2008).

Possessing Depictions of a Minor Engaged in Sexually Explicit Conduct. When the evidence does not demonstrate that the defendant aided, invited, employed, authorized, or caused the photographed minor to become naked, there is insufficient evidence to establish the minor victim engaged in sexually explicit conduct. State v. Whipple, COA No. 35523-0-II (May 20, 2008).

Community Custody. Petitioner is entitled to have the extra 24 months of custody served before he was resentenced under Blakely credited against his term of community custody. In re the Personal Restraint of Knippling, COA No. 25403-8-III (May 20, 2008). Judge Sweeney authored the dissenting opinion. [Editor’s note –

Exceptional Sentences. The trial court did not err in a first degree assault case by considering the severity of the victim's injuries as an aggravating factor under RCW 9.94A.535(3)(y). RCW 9.94A.535(3)(y) does not violate due process vagueness prohibitions. A jury instruction that uses the phrase "substantially exceeds" is not unconstitutionally vague. State v. Stubbs, COA No. 25475-5-III (May 20, 2008). Judge Schultheis authored the dissenting opinion.

Rape. A defendant who engages in sexual intercourse with a victim, who is physically helpless due to a debilitating disease such as Lou Gehrig disease, is only guilty of third degree rape. State v. Bucknell, COA No. 25783-5-III (Mar. 13, 2008, publication ordered May 22, 2008).

Firearms. A defendant who was convicted of vehicular assault when that offense was a class B felony was entitled to have his firearm rights restored, despite the fact that vehicular assault has been reclassified as a class A felony and an individual who has been convicted of a class A felony may not have his firearm rights restored.. State v. Rivard, COA No. 25923-4-III (May 22, 2008). Editor’s note: This case maybe correct in so far as it provides that a particular defendant’s offense cannot be reclassified post conviction. This case appears to be wrong in so does not appear to alter the principle that restrictions upon owning firearms are collateral consequences of a conviction. In re Personal Restraint of Ness, 70 Wn. App. 817, 823-24, 855 P.2d 1191 (1993), review denied, 123 Wn.2d 1009 (1994) (citing Saadiq v. State, 387 N.W.2d 315, 325 (Iowa), appeal dismissed, 479 U.S. 878 (1986)); see also In re Firearm Rights of Nelson, 120 Wn. App. 470, 475, 85 P.3d 912 (2003) ("Although the prohibitions of the amended firearm statute impose a disability and a threat of criminal prosecution if violated, they do not amount to punishment for a previous conviction, nor do they alter the standard of punishment.") (citing State v. Schmidt, 143 Wn.2d 658, 676, 23 P.3d 462 (2001)).

WEEKLY UPDATE FOR May 16, 2008

State v. Montgomery, No. 79564-9 (May 15, 2008). Justice Madsen wrote a concurring opinion. Justice J. Johnson wrote a separate concurring opinion.

Plea Agreements. A defendant breaches a plea agreement when he contests the inclusion of out-of-state convictions at sentencing that he affirmatively acknowledged during the plea negotiations. In such cases, rescission is the proper remedy. State v. Collins, COA No. 59943-7-I (May 12, 2008).

Community Custody. Failure to register as a sex offender is a sex offense that carries a 36 to 48 month term of community custody. The inadvertent numbering error in Substitute Senate Bill (SSB) 6519 does not mandate a different result. State v. Albright, COA No. 35890-5-II (May 13, 2008).

Public Disclosure. Requester of attorney invoices was entitled to attorney’s fees and statutory penalty, as the county did not provide copies until after the requester filed a lawsuit. The requester, however, was not entitled to proceed upon his breach of contract lawsuit as he was not a party to the contract. West v. Thurston County, COA No. 36252-0-II (May 13, 2008).

Consensual Contacts. The arrival of a second officer, who stood a respectful distance away without becoming part of the encounter between the defendant and the first officer did not convert the encounter into a seizure. The first officer’s request for permission to check the defendant’s pocket after the defendant kept putting his hands into his object-laden pockets after the officer requested that the defendant not do so, did not turn the voluntary meeting into a seizure. State v. Harrington, COA No. 25497-6-III (May 13, 2008). Judge Sweeney authored a dissenting opinion.

Community Custody. Failure to register as a sex offender is a sex offense that carries a 36 to 48 month term of community custody. The inadvertent numbering error in Substitute Senate Bill (SSB) 6519 does not mandate a different result. State v. Castillo, COA No. 25845-9-III (May 15, 2008).

Urine Drug Testing. A person on supervised release has a right to cross-examine the laboratory technician who tested a urine sample containing an illegal drug, where: (1) the test report itself stated the sample was "dilute"—meaning the urine sample had been combined with another liquid at some point before or during the testing; (2) the evidence presented showed the person on supervised release did not have an opportunity herself to dilute nor add a substance to the sample; and (3) the result of the urinalysis was critical to support a finding that the person on supervised

release had possessed or used illegal drugs. United States v. Perez, No. 07-10289 (9th Cir. May 16, 2008).

Counsel of Choice. A judge’s denial of a defendant’s motion, brought the morning of trial, to allow his attorney to withdraw and to postpone proceedings, does not improperly deny the defendant his right to the counsel of his choice. Miller v. Blackletter, No. 06-36090 (9th Cir. May 12, 2008).

Pretermination Hearings. A government employee has a due process right to a pre-termination hearing prior to being laid off, even if the employee’s union contract stated he was not entitled to a pretermination hearing if laid off. Levine v. City of Alameda, No. 06-15480 (9th Cir. May 13, 2008).

Victim’s Counseling Records. Prosecutors have a right to appear and to present argument in opposition to a defense request for a victim’s counseling records. A prosecutor’s submission of argument at such a hearing does not amount to the representation of third party interests, and does not provide a basis for recusal. People v. Humberto S., No. S149123 (May 12, 2008).

WEEKLY UPDATE FOR May 9, 2008

Withdrawal of Guilty Pleas. A defendant, who is properly advised of the standard range penalty, is entitled to withdraw his guilty plea whenever he is misadvised about the statutory maximum penalty for the offense. State v. Weyrich, No. 80061-8 (May 8, 2008).

Unit of Prosecution. Division One, declining to adopt Division Two’s conclusion in State v. Sutherby, 138 Wn. App. 609, 158 P.3d 91 (2007), review granted, 162 Wn.2d 1018 (2008), that the word "any" in RCW 9.68A.070's definition of "visual or printed matter" rendered ambiguous the unit of prosecution for violation of RCW 9.68A.070, adheres to State v. Gailus, 136 Wn. App. 191, 147 P.3d 1300 (2006) in which we held that the unit of prosecution is one crime for each photograph, regardless of whether they are stored in a single location. State v. Reeves, COA No. 59528-8-I (May 5, 2008).

Former RCW 26.50.110. Former RCW 26.50.110 criminalized the same behavior as does the 2007 clarifying amendment to that statute. Neither the last antecedent rule nor the rule of lenity require a different result. State v. Bunker, COA No. 59322-6-I (May 5, 2008).

Exceptional Sentences. A trial court may impose an exceptional sentence in a felony violation of domestic violence protection order on the grounds that the person protected by the protection order was "an initiator, willing participant, aggressor, or provoker of the incident". State v. Bunker, COA No. 59322-6-I (May 5, 2008).

Sealing Court Files. The standard for sealing court files is the same in family law matters as in other types of cases. When a party moves to unseal records that were sealed under the former rule and the original sealing order does not conform to the current rule, it is not appropriate to apply the current standard for unsealing. Rather, the proponent of unsealing should be permitted to show that under the standards of the new rule, the original order was unjustified or overbroad. To reduce the burden upon the court, the judge can require all parties to suggest redacted versions of pleadings, so as to allow the largest possible amount of information to be available to the public. In re Marriage of R.E., COA No. 58864-8-I (May 5, 2008).

Claims Filing Statute. The claim filing requirements of chapter 4.96 RCW do not apply to breach of contract actions. Matia Contractors, Inc. v. City of Bellingham, COA No. 60672-7-I (May 5, 2008).

Terry Stops. An officer responding to two different phone calls of shots fired in a residential neighborhood, acted properly in detaining an individual that he observed 2 to 3 minutes after the calls approximately a block from the reported location, speeding away on an unlit bicycle. State v. Rowell, COA No. 25366-0-III (May 5, 2008). Judge Schultheis authored the dissenting opinion.

Taser Error. An officer’s deployment of a firearm, in lieu of an intended deployment of a taser, is governed by the Fourth Amendment’s reasonableness analysis. Five factors are relevant to the reasonableness analysis: (1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant’s conduct heightened the officer’s sense of danger; and (5) whether the defendant’s conduct caused the officer to act with undue haste and inconsistently with that training. Torres v. City of Madera, No. 05-16762 (9th Cir. May 5, 2008).

DNA Statistics. Testimony regarding DNA that confused source probability with random match probability violated the defendant’s right to due process in this sexual assault case. Brown v. Farwell, No. 07-15592 (9th Cir. May 5, 2008).

Brady/Giglio. Although the proper remedy for Brady and Giglio violations is usually the grant of a new trial, such violations can support a motion to dismiss a prosecution. United States v. Chapman, No. 06-10316 (9th Cir. May 6, 2008).

Stalking. The crime of stalking encompasses the act of directing others to harass a victim. State v. Becklin, No. 79354-9 (May 1, 2008). Chief Justice Alexander authored the dissenting opinion.

Terry Stops. An individual’s startled reaction to police, and movement to one side before walking quickly away does not provide grounds for a Terry stop. Although the officers did not tell the individual "Stop, I want to talk to you", until after the individual illegally crossed the street, the Supreme Court stated that the order was "premature", and that the firearm and drugs should be suppressed. State v. Gatewood, No. 79992-0 (May 1, 2008).

Sexually Violent Predators. A prosecutor cannot file an SVP proceeding, or request that the attorney general’s office file an svp proceeding, based upon out-of-state convictions, if the prosecutor has never convicted or charged the detainee with an offense. In Re Detention of Martin, No. 78963-1 (May 1, 2008). Justice Chambers authored the dissenting opinion.

The Washington Supreme Court granted review in the following cases on April 29, 2008:

Open Courtrooms. MPR 1.3, which provides that mental commitment hearings shall be closed unless the person who is subject to the proceeding files with the court a written request for an open hearing, is unconstitutional under Const. art. I, § 10. In re Detention of D.F.F., COA 59462-1-I (Apr. 28, 2008).

Prosecutor Conflicts. A prosecuting attorney’s office may assist a county employee in obtaining a civil anti-harassment order against another county employee, and may prosecute the offending employee criminally for violating the order. State v. Orozco, COA No. 59064-2-I (March 17, 2008, released for publication Apr. 28, 2008).

Prosecutorial Misconduct.

State v. Jones, COA No. 34471-8-II (Apr. 29, 2008).

Open Door Doctrine. Even if a defendant has "opened the door" to evidence or examination of a particular subject at trial, the prosecutor is not absolved of her ethical duty to ensure a fair trial by presenting only competent evidence on this subject. . State v. Jones, COA No. 34471-8-II (Apr. 29, 2008). Editor’s note– This holding is arguably inconsistent with other opinions which allow prosecutors to introduce evidence that would otherwise be protected by constitutional principles when a defendant opens the door. See 5 K. Tegland, Wash. Prac., Evidence § 103.14, at 76 (5th ed. 2007). 11, at 41 (3d ed. 1989). See also, State v. Kendrick, 47 Wn. App. 620, 736 P.2d 1079, review denied, 108 Wn.2d 1024 (1987) (defense counsel's cross-examination of a police officer and direct examination of the defendant that sought to portray the defendant as fully cooperative with police opened the door to evidence of the defendant's post-arrest silence). Similarly, evidence offered by the State under the open door rule will not ordinarily be excluded under ER 403. See State v. Smith, 115 Wn.2d 434, 442-44, 798 P.2d 1146 (1990); State v. Knight, 54 Wn. App. 143, 153-54, 772 P.2d 1042, review denied, 113 Wn.2d 1014 (1989).

Invited Error Doctrine. The invited error doctrine does not apply to prosecutorial misconduct. State v. Jones, COA No. 34471-8-II (Apr. 29, 2008).

Arresting Judgment. State v. Womac, 160 Wn.2d 643, 160 P.3d 40 (2007), does not require the dismissal of a constitutionally valid conviction that is not reduced to judgment, based upon its merger into another count. A trial court may, without violating double jeopardy, sign an order that the conviction for the merged crime is valid and can be taken to sentencing if an appellate court finds any problems with the greater conviction. State v. Turner, COA No. 33678-2-II (Apr. 29, 2008).

Anti-SlAPP. The anti-SLAPP statute, RCW 4.24.510, provides immunity to state agencies who make a good faith report to police regarding a threatening citizen. The anti-SLAPP statute confers immunity from a malicious prosecution claim. Segaline v. Dept. of L&I, COA No. 35823-9 (Apr. 29, 2008).

Jury Instructions. The order in which jury instructions are read will not provide a ground for reversal, if the jury instructions, read as a whole, properly state the law and allow a defendant to argue his theory of the case. The self-defense and assault instructions in the instant case properly set out the law. State v. Prado, COA No. 24917-4-III (Apr. 29, 2008).

Pre-Text Stop. An officer, who parked in a neighboring parking lot, after dark, in order to watch the occupants of a van who had engaged in suspicious behavior, made an unconstitutional pretext stop of the van after observing that the van left its parking lot and drove 100 yards on the public street before turning on its headlights. State v. Montes-Malindas, COA No. 25280-9-III (Apr. 29, 2008).

Sex Offender Supervision. Rejecting constitutional challenges to a number of limitations and conditions imposed upon a convicted sex offender as part of his sentence. United States v. Stoterau, No. 07-50124 (9th Cir. Apr. 29, 2008).

Excessive Force. Officers, who were confronted with a suspect who might be in a state of excited delirium, were not liable in an excessive force action brought by the suspect’s estate, where the officers response to the suspect began with a verbal confrontation, and only then escalated to an attempt to disarm and to restrain the suspect. Gregory v. County of Maui, No. 06-15374 (9th Cir. Apr. 29, 2008).

Search Incident to Arrest. The police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when they performed a search of the defendant’s person incident to the arrest. Virginia v. Moore, No. 06-1082 (Apr. 23, 2008). Editor’s note– This opinion will mainly have an impact in 42 U.S.C. § 1983 lawsuits arising out of warrantless arrests in Washington.

"Not a Capital Case." Defense counsel’s informing the jury that the murder charge was not a capital case and in failing to object to similar statements from the prosecutor and judge was deficient performance, but not prejudicial. State v. Hicks, No. 79143-1 (Apr. 24, 2008). Justice Chambers authored the concurring opinion. Justice Sanders authored the dissenting opinion.

Batson Challenges. Trial courts are not required to find a prima facie case based on the dismissal of the only venire person from a constitutionally cognizable group, but they may, in their discretion, recognize a prima facie case in such instances. The exercise of peremptory challenges based upon generalizations about the type of persons engaged certain professions, such as educators and social workers, are constitutionally permissible. State v. Hicks, No. 79143-1 (Apr. 24, 2008). Justice Chambers authored the concurring opinion. Justice Sanders authored the dissenting opinion.

Waiver of Appeal. A stipulated trial form that contained the statement that the defendant’s stipulation "waived ‘the right to challenge the sufficiency of the evidence to support these convictions on appeal’" was insufficient to waive the defendant’s right to appeal when the accompanying colloquy did not clearly establish that the defendant understood the import of the language. State v. Neff, Justice Bridge authored a concurring opinion. Justice Sanders authored a concurring/dissenting opinion.

Firearm Enhancement. There was sufficient evidence to sustain a firearm enhancement in a case in which the defendant, who was detained outside the garage meth lab, had a key to the garage, had three loaded weapons in the garage, one of which was hanging from a rafter, and had two security cameras with live feeds into the garage for countersurveillance purposes. State v. Neff, Justice Bridge authored a concurring opinion. Justice Sanders authored a concurring/dissenting opinion.

Quasi-Judicial Immunity. A deputy sheriff, who purportedly acted negligently when carrying out a judge’s order to escort a prisoner to jail, is not shielded from liability by quasi-judicial immunity, in an action brought by an individual who was injured by the prisoner during the prisoner’s escape attempt. Lallas v. Skagit County, COA No. 60054-1-I (Apr. 21, 2008).

Juveniles and Civil Anti-Harassment Protection Orders. A juvenile found to have violated the terms of a temporary civil antiharassment protection order issued under the authority of chapter 10.41 RCW is subject to the sanction contained in RCW 7.21.030(4). That sanction is purely punitive and thus criminal in nature, despite its being included in a section of the revised code that is labeled as remedial. State v. T.A.W., COA No. 59156-8-I (Mar. 17, 2008, released for publication on Apr. 21, 2008).

"Wash-out" RCW 9.94A.035 which requires a court to classify a non Title 9A RCW robbery as a class A felony for offender score purposes if the maximum imprisonment term was for 20 years or more, is not unconstitutionally vague. Collateral estoppel does not preclude the State from contending that an offender’s prior conviction does not "wash-out" under the current version of the SRA, even if the State agreed that the prior conviction "washed-out" under prior versions of the SRA. State v. Failey, COA No. 35677-5-II (Apr. 22,2008).

ER 404(b) and Felony Murder. It is an abuse of discretion to admit prior threats to kill to under the intent section of ER 404(b) in a felony murder predicated on burglary case, as intent is not an essential element of felony murder. State v. Wilson, COA No. 24578-1-III (Apr. 24, 2008).

Experienced Counsel. A trial court judge may not deny a request for experienced co-counsel solely on budgetary concerns. State v. Wilson, COA No. 24578-1-III (Apr. 24, 2008).

Interrogation. An officer’s "death notification" to a defendant who was accused of stabbing her husband, after that defendant had requested counsel, was the functional equivalent to interrogation. The defendant’s post-notification statements should have been suppressed. State v. Wilson, COA No. 24578-1-III (Apr. 24, 2008).

Conflict of Interest. When a judge is notified that defense counsel has previously represented a State witness, the judge should make an inquiry into whether a conflict exists. . State v. Wilson, COA No. 24578-1-III (Apr. 24, 2008).

School Bus Stop Enhancements. School enhancement jury instructions properly require a jury to be unanimous before rendering a verdict on the enhancement. The lack of a certification process for a rolling wheel measuring device goes to the weight to be given to its measurement, rather than to the admissibility of the measurement. State v. Bashaw, COA No. 25748-7-III (Apr. 24, 2008).

Public Records Act. A privately-run corporation that contracts with the Animal Control Authority (ACA) of Richland, Pasco and Kennewick (tri-cities) to provide animal control services for the tri-cities area is a public agency that is subject to the Public Records Act. Clarke v. Tri-Cities Animal Control and Sheltering Services, COA No. 25222-1-III (Apr. 24, 2008).

Manufactured/Mobile Home Landlord-Tenant Act. The Manufactured/Mobile Home Landlord-Tenant Act does not preempt local ordinances that prohibit the placement of recreational vehicles in a residential mobile home park. Lawson v. City of Pasco, COA No. 25967-6-III (Apr. 24, 2008).

Laptop computers. Reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border. United States v. Arnold, No. 06-50581 (9th Cir. Apr. 21, 2008).

WEEKLY ROUNDUP FOR APRIL 18, 2008

Lethal Injection. In a widely splintered decision, the Supreme Court cleared the way for executions to resume across the country, concluding that the most common method of lethal injection does not violate the Constitution. Although there was no opinion that spoke for five or more Justices, the Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a "substantial risk of serious harm." It rejected the death row inmate’s proposal that the standard be "unnecessary risk." Baze v. Rees, No. 07-5439 (Apr. 16, 2008).

This week the Court granted certiorari in the following case of interest to prosecutors:

Blakely and Harmless Error. Under Washington law, harmless error analysis does not allow for the imposition of a "firearm" enhancement in a case in which the charging document only alleged that the defendant was armed with a "deadly weapon". When a "firearm" enhancement is included in the information, the matter may be submitted to the jury. State v. Recuenco, No. 74967-7 (Apr. 17, 2008). The dissent was authored by Justice Fairhurst, and concurred in by Justices Bridge (ret.), Chambers, and Jim Johnson.

Use of Lawful Force. In a felony murder case predicated upon assault in which the defendant asserts an excusable homicide defense predicated upon a claim that he was acting in self-defense at the time of the underlying assault, the defendant is not entitled to a jury instruction that requires the State to disprove, beyond a reasonable doubt, the defendant’s self-defense claim. State v. Slaughter, COA No. 59256-4-I (Apr. 14, 2008).

Auto-Adult Jurisdiction. When a teen is charged with an auto-adult jurisdiction offense that is alleged to have occurred over a period of time that includes pre-age 16 conduct, the State must present sufficient evidence to support a finding that there is probable cause that the offense occurred after the teen’s 16th birthday. If such evidence was not presented at filing, and the jury was not provided with special interrogatories as to the date of the offenses, the teen was entitled to be tried in juvenile court, unless juvenile court jurisdiction was deemed inappropriate under Kent factors. State v. Meridieth, COA No. 35345-8-II (Apr. 15, 2008). [Editor’s note: When the period charged includes the effective date of a statutory amendment that alters the available punishment, the defendant will be entitled to be sentenced under the most lenient version of the statute unless a special interrogatory was answered by the jury as to when the offense actually occurred. See State v. Parker, 132 Wn.2d 182, 191-192, 937 P.2d 575 (1997); State v. Gurrola, 69 Wn. App. 152, 158-59, 848 P.2d 199, review denied, 121 Wn.2d 1032 (1993). A sample interrogatory may be found in the WAPA charging manual.]

Escape. A judge’s oral order to take someone into custody is sufficient to support a charge of escape. State v. Eichelberger, COA No. 35606-6-II (Apr. 15, 2008)

Criminal Wildlife Penalty Assessment. Blakely does not require a jury to determine whether a defendant’s hunting violation under RCW 77.15.410(1) resulted in the death of a deer, in order to impose the mandatory $2,000 criminal wildlife penalty assessment of RCW 77.15.420(1)(b). State v. Richard, COA No. 25591-3-III (Apr. 15, 2008).

Frisks. The mere fact that someone is a passenger in a stolen car does not provide an officer with grounds to conduct a frisk. State v. Adams, COA No. 25969-2-III (Apr. 17, 2008). Judge Brown authored a dissenting opinion.

Aggressor Instruction. A defendant, who was in a physical altercation with one victim, could not claim self-defense against the two other victims, who came to the first victim’s assistance. State v. Anderson, COA No. 25859-9-III (Apr. 17, 2008).

WEEKLY ROUNDUP FOR APRIL 11, 2008

Prisoner Hunger Strikes. The protection granted under article I, section 7 to refuse "life- sustaining treatment" is coextensive with, but not greater than, the protection granted under the federal constitution. The State's interests in applying DOC's force-feeding policy to an inmate, who is not "in an advanced state of a terminal or incurable illness" or "suffering severe permanent mental or physical deterioration", outweigh the inmate’s right to refuse artificial means of nutrition and hydration. McNabb v. Dep’t. of Corrections, No. 77359-9 (Apr. 10, 2008). Justice Madsen authored a concurring opinion. Justice Sanders authored the dissent.

Collateral Estoppel. A district or municipal court order suppressing a breath test will only collaterally estop the Department of Licensing from suspending the defendant’s driver’s license if the driver establishes by a preponderance of the evidence, using competent evidence, that the issue that led to the suppression of the breath test in the criminal court is identical to the issue asserted in the DOL hearing and that the issue was resolved on the merits in the criminal court proceeding. An assertion by the defendant driver’s attorney is not competent evidence. Lemond v. Department of Licensing, COA No. 59515-6-I (Apr. 7, 2008).

Criminal Jurisdiction. The Pierce County District Court had jurisdiction to try the defendant for DUI and reckless driving as the defendant had to drive on the State controlled portion of I-5 before being stopped on the military base that is within the exclusive jurisdiction of the federal government. In addition, there is concurrent State and federal jurisdiction over that portion of I-5 crossing Fort Lewis and the associated entrance ramps. State v. Dodson, COA No. 35047-5-II (Apr. 8, 2008).

Facial Validity. Where the change of plea form incorrectly stated that the statutory maximum penalty for each count as 10 years, and the formal judgment and sentence correctly stated that the statutory maximum for each count was 5 years, the defendant did not meet his burden of establishing that the convictions were facially invalid and should not be included in his offender score. State v. Thompson, COA No. 34540-4-II (Apr. 8, 2008).

Double Jeopardy. Entry of convictions for both first degree theft and first degree trafficking in stolen property does not violate double jeopardy. The offenses may also be separate criminal conduct for offender score purposes. State v. Walker, COA No. 35612-1-II (Apr. 8, 2008).

Zoning. Where the Board of County Commissioners did not disagree with any fact found by the Examiner in determining that a requested rezone was consistent with the comprehensive plan and policies, the Examiner's facts became verities and the Board could not refuse to grant the rezone. J.L. Storedahl & Sons, Inc. v. Clark County, COA No. 36177-9-II (Apr. 8, 2008).

Privacy Act. The issue of whether conversations with public employees are subject to the Privacy Act and the broader issue of whether certain types of conversations are always considered private conversations for purposes of the Act are issues of great public importance. The County’s declaratory judgment action seeking clarification of these issues so that the County may properly advise its employees and establish policies ensuring protection of all persons' privacy rights should not have been dismissed. The matter is remanded to the trial court for full consideration. Kitsap County v. Smith, COA No. 35878-6-II (Apr. 8, 2008).

Public Records. The County’s action to recover copies of public records and original documents that were in the possession of a former employee and the former employee’s attorney should go forward on the merits as there are unresolved issues of material fact under chapters 40.14 and 40.16 RCW. Kitsap County v. Smith, COA No. 35878-6-II (Apr. 8, 2008).

Speedy Trial. Although the State complied with the time for trial court rule, the defendant’s constitutional right to a speedy trial was violated by a nine month delay between arrest and trial where the defendant consistently requested a speedy trial, was in custody pending trial, and the defendant was not responsible for any of the delay. State v. Iniguez, COA No. 25218-3-III (Apr. 8, 2008).

Destruction of Evidence. A police officer’s failure to collect or preserve evidence at the scene does not constitute a Brady violation, if at the time the officer decided not to collect or preserve the evidence, the officer did not know that the evidence was clearly exculpatory. Richter v. Hickman, No. 06-15614 (9th Cir. April 9, 2008).

WEEKLY ROUNDUP FOR APRIL 4, 2008

Sufficiency of the Evidence. Sufficient evidence supports the convictions for rape, kidnapping, and assault. State v. Mines, No. 80587-3 (April 3, 2008).

Harmless Error and Blakely. Where the legislature has directed that the court, not the jury, will make a finding, and has established that the standard of proof shall be a preponderance of the evidence, rather than beyond a reasonable doubt, the quantum of evidence introduced to support the finding is immaterial--the error cannot be harmless. In re Personal Restraint of Hall, No. 75800-0 (April 3, 2008). Justice Jim Johnson authored the dissenting opinion. [Editor’s note: This opinion did not cite or discuss Laws of 2005, ch. 205, which will allow for the sitting of a jury to reconsider the defendant’s exceptional sentence.]

Witness Immunity. Witness immunity does not apply to information disclosed in violation of the Uniform Health Care Information Act (Health Care Information Act or Act), chapter 70.02 RCW. Witness immunity may not apply to testimony relating to information acquired during a professional relationship formed for nonlitigation purposes. Wynn v. Earin, No. 78247-4 (April 3, 2008). Justice Chambers authored the concurring opinion.

The Washington Supreme Court granted petitions for review on April 1, 2008, in the following cases:

District Court Probation Warrants. A finding of probable cause for a probation violation is not required before issuing a warrant for failure to appear. State v. Erickson, COA No. 59468-1-I (March 31, 2008).

Traffic Infractions. Hearsay is inadmissible in a contested traffic infraction hearing unless an exception applies. Circumstantial evidence, namely that the defendant’s vehicle was parked on the shoulder of a highway facing the opposite direction of the normal flow of traffic, is sufficient to support a finding that a driver committed the infraction of negligent driving in the second degree. RCW 46.63.070(5) allows a court to impose costs upon a defendant as a condition of deferring a traffic infraction. Pierce County v. Magee, COA No. 34261-8-II (Apr. 1, 2008).

Post-Conviction DNA Testing. An inmate, who always maintained his innocence, has a limited federal due process right of access to biological evidence for purposes of post-conviction DNA testing at the prisoner’s own expense, which might either confirm his guilt or provide strong evidence upon which he may seek post-conviction relief. To obtain access, the inmate need only demonstrate "a reasonable probability that, if exculpatory DNA evidence were disclosed . . . he could prevail in an action for post-conviction relief." Osborne v. District Attorney’s Office, No. 06-35875 (April 2, 2008).

Criminal Investigations. It is not deceitful for the government to decide not to conduct a criminal investigation openly, in conjunction with a civil investigation. There is nothing improper about the government undertaking simultaneous criminal and civil investigations. United States v. Stringer, No. 06-30100 (9th Cir. April 4, 2008).

WEEKLY ROUNDUP FOR MARCH 28, 2008

Consular Notification. The International Court of Justice’s decision in the Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Avena), which held that the United States had violated Article 36(1)(b) of the Vienna Convention on Consular Relations (Vienna Convention or Convention) by failing to inform 51 named Mexican nationals, including petitioner Medellín, of their Vienna Convention rights, is not directly enforceable in state courts. The President’s Memorandum that sought to make the decision enforceable in state courts cannot displace state limitations on filing successive habeas applications. Medellin v. Texas, No. 06-984 (March 25, 2008).

DOSA Revocations. When a DOSA sentence is revoked, the defendant is entitled to credit for the time spent in confinement for violating the conditions of that sentence. The defendant, however, is not entitled to receive credit against the community supervision for the periods of time when he was either absent from supervision or was incarcerated on unrelated charges. In re Personal Restraint of Albritton, COA No. 58832-0-I (March 24, 2008).

Drug Court Contracts. When a drug court contract includes a stipulation by the defendant that the evidence is sufficient to find the defendant guilty as charged, the defendant cannot challenge the sufficiency of the evidence supporting his conviction following a post-revocation bench trial. In addition, a drug court contract is not the equivalent of a guilty plea and due process does not require the same information in a drug court contract as in a statement of defendant on plea of guilty. State v. Drum, COA No. 35947-2-II (March 25, 2008).

Use of Drug Paraphernalia. A plastic baggy containing marijuana residue will support a charge of "use of drug paraphernalia" as the baggy satisfies the "storing" or "containing" definitions in RCW 69.50.412. State v. O’Meara, COA No. 36194-9-II (March 25, 2008).

WEEKLY ROUNDUP FOR MARCH 21, 2008

Top Two. I-872's top two primary is constitutional. Washington State Grange and Washington v. Washington State Republican Party No. 06-713 (March 18, 2008).

Batson Challenges. The prosecutor’s "race neutral" reason for excusing the 5th black venireman who survived challenges for cause on the ground that the juror appeared nervous and was concerned about missing class was not sufficient to survive a Batson challenge, despite the trial judge's acceptance of the explanation. Note at page 6 of the slip opinion that the Court is unwilling to presume that the trial judge relied on his own observation of the venireman's demeanor without any statement from the judge to that effect. Snyder v. Louisiana, No. 06-10119 (March 19, 2008).

The United States Supreme Court granted certiorari in the following cases this week:

Perjury. The clause in our perjury statute instructing a trial judge to determine the materiality of a false statement as a matter of law is unconstitutional. The clause, however, is severable from the remainder of the statute. The perjury statute is constitutional, so long as the issue of materiality is submitted to the jury. The requirement that the jury determine materiality does not apply to perjury convictions that were final before today. State v. Abrams, No. 79481-2 (March 20, 2008). Justice Madsen wrote a concurring opinion. Justice Chambers authored a separate concurring opinion.

Juvenile Juries. A juvenile charged with a serious or violent offense does not have a right to a jury. State v. Chavez, No. 79265-8 (March 20, 2008). Justice Madsen authored the dissenting opinion.

Assault. The legislature did not violate the separation of powers doctrine by permitting the judiciary to define assault. State v. Chavez, No. 79265-8 (March 20, 2008). Justice Madsen authored the dissenting opinion.

Exceptional Sentences. There is no statutory or constitutional requirement to plead aggravating factors in the information. State v. Berrier, COA No. 35470-5-II (March 18, 2008).

Probationer Searches. People who live with probationers are entitled to the full protection of Const. art. I, § 7. Such people possess an expectation of privacy in their portion of the home. Evidence discovered during a warrantless search of a non-common area of the home is not admissible against the non-probationer. State v. McKague, COA No. 35336-9-II (March 18, 2008).

Division Three

Blakely and Refusals. The administrative suspension of a driver's license for a driving under the influence (DUI) conviction is not punishment. Accordingly, Blakely v. Washington does not entitle the driver to a jury determination of refusal. City of Spokane v. Wilcox, COA No. 24030-4-III (March 20, 2008).

WEEKLY ROUNDUP FOR MARCH 14, 2008

Prearrest Silence. When defendants take the stand, their prearrest silence may be used to impeach their testimony, but their silence may not be used as substantive evidence of guilt. State v. Burke, No. 78528-7 (March 13, 2008). Justice Madsen authored the dissenting opinion.

School Drug Testing. Random and suspicionless drug testing of student athletes violates article I, section 7 of the Washington State Constitution. The opinion expressly denies that the Washington Supreme Court has ever adopted or endorsed a "special needs" exception to the search warrant requirement. Justice Sanders authored the lead opinion in York v. Wahkiakum School District, #200, No. 78946-1 (March 13, 2008). Justice Madsen filed a concurring opinion in which she disagrees that article I, section 7 of the Washington Constitution categorically prohibits the adoption of the "special needs" exception. Justice Chambers filed a second concurring opinion in which he reiterates his dissatisfaction with the holding of State v. Athan, 160 Wn.2d 354 (2007). Justice Jim Johnson filed a third concurring opinion to highlight that the expectation of privacy of adolescents is less than that of adults.

Affirmative Defenses in Civil Cases. An affirmative defense is not waived merely because it is included in an untimely filed answer to a civil complaint. Oltman v. Holland American Line-USA, Inc., No. 79529-1 (March 13, 2008).

Escape. The "knowledge" element of first degree escape was satisfied when a work release inmate’s detention by police occurred as a result of the inmate’s conduct, when he was neither at work nor actively traveling from work back to the work release facility. State v. Carlson, COA No. 35958-8-II (Mar. 11, 2008).

Clean Water Charge. Clark County’s Clean Water Charge (CWC), with rates varying according to the services furnished, the benefits received, and the character, use, and storm water runoff characteristics of the land, is a regulatory fee as opposed to an unconstitutional tax. Storedahl Properties Llc. v. Clak County, COA No. 35608-2-II (Mar. 11, 2008).

Equivocal Waivers of Miranda Rights. The "clear statement" rule of Davis v. United States, 512 U.S. 452, 262 (1994), applies only after the police have already obtained an unambiguous and unequivocal waiver of Miranda rights. Prior to obtaining such a waiver, however, an officer must clarify the meaning of an ambiguous or equivocal response to the Miranda warning before proceeding with general interrogation. This does not mean, however, that all waivers of Miranda rights must be express: "a suspect may impliedly waive the rights by answering an officer’s questions after receiving Miranda warnings." United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127, amended, 416 F.3d 939 (9th Cir. 2005). United States v. Rodriguez, No. 07-10217 (Mar. 10, 2008).

WEEKLY ROUNDUP FOR MARCH 7, 2008

On Tuesday, March 4, 2008, the Washington Supreme Court granted review in the following cases:

Blakely and Harmless Error. When a defendant pleads guilty and stipulates to facts that a trial judge considers in imposing an exceptional sentence, may the court of appeals consider those stipulated facts in determining whether the absence of a jury finding is subject to harmless error? State v. Robinson, No. 80202-5. King County. Court of Appeals opinion is unpublished.

Warrantless Search. When the defendant was initially detained and handcuffed because police officers mistook the defendant for his brother, who was named in a felony arrest warrant that the officers were trying to execute, was the initial search of the defendant justified as a protective frisk incident to a valid investigatory stop? State v. Xiong, No. 80236-0. Spokane County. Court of Appeals opinion reported at 137 Wn. App. 720 (2007).

Transferred Intent. Whether the defendant’s intent to murder his estranged wife, transferred to the assaults upon his children? State v. Elmi, No. 80380-3. King County. Court of Appeals opinion reported at 138 Wn. App. 306 (2007).

Bail Bonds. Is the county liable to one bail bonds company when it distributes one insurance company’s funds for another insurance company’s bail bond obligations, based solely on the bail bond agent’s own representations of apparent authority? Ranger Ins. Co. v. Pierce County, No. 80389-7. Pierce County. Court of Appeals opinion reported at 138 Wn. App. 757 (2007).

Judicial Estoppel. Whether the failure to list a potential tort claim in a bankruptcy petition requires the dismissal of the tort claim? Miller v. Campbell, No. 80276-9. Court of Appeals opinion reported at 137 Wn. App. 762 (2007).

Bicyclists. Are bicyclists traveling in designated bicycle lanes required to follow the highway traffic safety laws? Borromeo v. Shea, No. 8027805. Court of Appeals opinion reported at 138 Wn. App. 290 (2007).

Requests for New Counsel. The trial court’s decision to grant a defendant’s request for substitute counsel is reviewed for abuse of discretion. To warrant substitution, good cause such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant must be shown. State v. Schaller, COA No. 57827-8-I (Dec. 3, 2007, ordered published on March 3, 2008).

Constructive Possession. There was insufficient evidence to convict the defendant, who was found hiding in the bed of a truck which contained numerous items, including some items used to make methamphetamine, where the defendant did not own the truck and the defendant’s fingerprints were not on items containing methamphetamine or on items used to manufacture it. State v. Enlow, COA No. 24396-6-III (Mar. 6, 2008). Judge Brown wrote a dissenting opinion.

WEEKLY ROUNDUP FOR FEBRUARY 29, 2008

Recent Overt Acts. Neither due process nor the Sexually Violent Predator statute requires the State to plead and prove a recent overt act where the offender has been confined continuously since his predicate conviction and awaits retrial for a nonpredicate offense which is about to be dismissed at the time of filing the SVP petition. In re Detention of Lewis, No. 79364-6 (Feb. 28, 2009). Justice Sanders authored a concurring opinion.

Felony Murder. Charging someone with felony murder predicated on assault under the current version of RCW 9A.32.050, does not result in a violation of the defendant’s equal protection rights. State v. Armstrong, COA No. 57413-2-I (Feb. 25, 2008).

Crime-Related Prohibitions. A no contact order prohibiting the defendant from having contact with "vulnerable, ill or disabled adults," is unconstitutionally vague. The term "ill" must be stricken in its entirety, and the trial judge must clarify on remand the meaning of the other terms. State v. Moultrie, COA No. 58797-8-I (Feb. 25, 2008). [Editor’s note: A provision that prohibited the defendant from having contact with "vulnerable adults as defined in RCW 9A.44.010(16) and with persons who are developmentally disabled as defined in RCW 71A.10.020(3)" would apparently pass muster.]

Unanimity Instructions. The current version of WPIC 4.25 properly states the requirement for jury unanimity. State v. Moultrie, COA No. 58797-8-I (Feb. 25, 2008).

Bail Jumping. It was reversible error to have an attorney, who was merely supervising another fully licensed attorney at trial and who was not seated at counsel table, testify that he had instructed the defendant to appear for court at the date and time specified in the bail jumping charge. State v. Regan, COA No. 25184-5-III (Feb. 26, 2008). Judge Sweeney authored a dissenting opinion.

WEEKLY ROUNDUP FOR FEBRUARY 22, 2008

Retroactivity of New Rules. Teague v. Lane, 489 U. S. 288 (1989), limits the kinds of constitutional violations that will entitle an individual to federal habeas corpus relief, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed "nonretroactive" under Teague. Danforth v. Minnesota, No. 06–8273 (Feb. 20, 2008).

Sexually Violent Predators. A person facing civil commitment as a sexually violent predator has a statutory right to counsel during a statutorily mandated precommitment psychological examination is a "proceeding". In re Detention of Kistenmacher, No. 79064-7 (Feb. 27, 2007). Justice Fairhurst concurs in the affirmance of the SVP commitment, but disagrees that the detainee has a statutory right to counsel during the psychological examination. Justice Sanders dissents from the majority’s harmless error analysis, but agrees that the detainee has a statutory right to counsel.

Consecutive or Concurrent Sentences. When a defendant commits a new felony (malicious mischief) while detained in jail, awaiting sentencing, and another felony (malicious mischief) while in jail after being sentenced, the sentences for the two new offenses should be served concurrently to each other, but consecutively to the sentence that was imposed on the original charge. State v. Elmore, COA No. 58879-6-I (Feb. 19, 2008).

Time for Trial. A trial judge’s unavailability due to a scheduled vacation, coupled with defense counsel’s repeated continuances to allow the defense counsel to prepare for trial, constituted good cause for beginning the defendant’s trial after the final day under the time for trial court rule. State v. Kenyon, COA No. 35237-1-II (Feb. 20, 2008). [Editor’s note: Snohomish County DPA Seth Fine indicates that the procedure used by the Mason County Superior Court is not really contemplated by the time for trial rule. His critique of this case is available by e-mailing me at pamloginsky@waprosecutors.org.]

Vacated Convictions. When a conviction was vacated, former RCW 9.94A.640(3) controlled the removal of the conviction from the WSP's publicly accessible database rather than RCW 10.97.060. State v. Riley, COA No. 36055-1-II (Jan. 2, 2008, publication ordered Feb. 20, 2008).

Incest. A father was properly convicted of incest where he forced his two children, both of whom were under the age of 8-years, to engage in sexual intercourse. State v. Bobenhouse, COA No. 25673-1-III (Feb. 21, 2008).

Exceptional Sentence. A letter from the prosecutor to the defense attorney was adequate notice that the State would be seeking an exceptional sentence pursuant to RCW 9.94A.537(1). State v. Bobenhouse, COA No. 25673-1-III (Feb. 21, 2008).

WEEKLY ROUNDUP FOR FEBRUARY 15, 2008

Defense of Trees. A property owner has the right to kill destructive game to protect his orchard. The jury can consider payments available for the destruction under the wildlife code in determining whether the property owner’s actions were "reasonably necessary". The burden of proving that the killings were not "reasonably necessary" is upon the State. State v. Vander Houwen, No. 77891-4 (Feb. 14, 2008). Justice Chambers authored the concurring opinion.

Minimum Wage Act. Delayed payment of wages beyond the time frame set forth in former WAC 296-128- 035 gives rise to employer liability under the Wage Rebate Act, but only where such delay is willful. Delayed payment of wages does not give rise to employer liability under the Minimum Wage Act. The Wage Payment Act does not apply outside the termination context. Champagne v. Thurston County, No. 79209-7 (Feb. 14, 2008). Justice Madsen authored a concurring opinion.

Federal Cases. In resolving questions of federal law, our court will consider unpublished federal court opinions as authorized by the federal rules. Opinions from the Ninth Circuit are no more persuasive than opinions from the Tenth, Fifth, or Seventh Circuit. S.S. v. Alexander, COA No. 58335-2-I (Feb. 11, 2008).

Offender Score. The State is not required to prove that a defendant was represented in a prior criminal prosecution, before the conviction stemming from that prosecution may be included in the offender score. State v. Booker, COA No. 58811-7-I (Feb. 11, 2008).

Drug in Jail Enhancement. The drug in jail enhancement, RCW 9.94A.533(5), only applies to someone who voluntarily enters a restricted location with a controlled substance. The enhancement does not apply to someone, who is in possession of a controlled substance at the time of arrest, solely because the controlled substance is not discovered until the person is taken to the jail. State v. Eaton, COA No. 34911-6-II (Feb. 12, 2008).

Terry Stops. Police were justified in making a Terry stop of the defendant, who was spotted inside enclosed storage units at 2:30 a.m., driving slowly with his car lights off. The storage units were within 1000 feet of recent burglaries, and the defendant was observed looking at the doors of some of the storage units in the compound. The 30 minute detention was reasonable, as officers need to ascertain which units had been burglarized. State v. Bray, COA No. 25858-1-III (Feb. 12, 2008).

Master Jury List. A defendant’s bare allegation that the jury pool is not representative is insufficient to obtain a copy of the master jury list. Counsel are not authorized to obtain copies of the master jury list without prior court approval. State v. Barajas, COA No. 24932-8-III (Dec. 4, 2007, ordered published on Feb. 12, 2008).

Prosecutorial Misconduct. Comparing the defendant to a mongrel dog in closing argument, and telling a jury that premeditation requires "the level of deliberation of a hungry dog trying to protect its food" constitute misconduct. State v. Barajas, COA No. 24932-8-III (Dec. 4, 2007, ordered published on Feb. 12, 2008).

Destruction of Evidence. To obtain a dismissal of charges, a defendant must demonstrate bad faith when the destroyed evidence is only potentially useful. State v. Johnston, COA No. 24850-0-III (Oct. 25, 2007, ordered published on Feb. 12, 2008).

Witness Competency. An adult witness, even one who is a patient in a mental health facility, is presumed competent to testify. This presumption of competence continues unless challenged by a party at trial, and the challenging party bears the burden of establishing incompetence. State v. Johnston, COA No. 24850-0-III (Oct. 25, 2007, ordered published on Feb. 12, 2008).

Potential Conflicts of Interest. A trial court has the discretion to disqualify a defense attorney when there is a potential conflict of interest arising from the attorney’s past consultation with a prosecution witness. State v. Johnston, COA No. 24850-0-III (Oct. 25, 2007, ordered published on Feb. 12, 2008).

Property Valuation. When a trial court values a property after a trial in which the property owner disputes the assessor’s valuation, the trial court is not required to set out the formula used for its calculation. The trial court’s valuation will be sustained so long as the trial judge shows a good understanding of the accounting and economic principles in play, and the valuation is within the range of expert opinions on the fair market value. Washington Beef, Inc. v. County of Yakima, COA No. 25966-8-III (Feb. 14, 2008).

Invocation of Miranda. An arrested individual’s statement to a police officer that "I plead the Fifth" is an unequivocal invocation of the right to remain silent. Officers must scrupulously honor that request by immediately ceasing all questioning. Anderson v. Terhune, No. 04-17237 (9th Cir. Feb. 15, 2008).

WEEKLY ROUNDUP FOR FEBRUARY 1, 2008

Andress Case. The State may not vacate convictions for felony murder based predicated upon assault that were declared facially invalid under Andress and may not retry the defendant on a proper charge over the defendant’s objections. State v. Hall, No. 78658-5 (Jan. 31, 2008).

Guilty Pleas. Where the plea form specifically advises a defendant that the defendant assumes the risk that the discovery of additional criminal history will increase his standard range, the defendant is not entitled to withdraw his guilty plea based upon an increased standard range due to the discovery of additional criminal history. State v. Codiga, No 79127-9 (Jan. 31, 2008). Justice Chambers authored a concurring opinion.

Gang Evidence. A prosecutor’s subtle and indirect questioning regarding gangs, required a new trial because the judge never had the opportunity to conduct an ER 404(b) analysis, and there was no evidence that the defendant was a gang member or of gang mores. State v. Ra, COA No. 35019-0-II (Jan. 29, 2008).

Community Custody. A court may not order a defendant to obtain a mental status evaluation and to comply with treatment as a condition of community custody based solely upon a pre-trial competency to stand trial evaluation. State v. Brooks, COA No. 25322-8-III (Jan. 29, 2008).

Expectation of Privacy. Evidence observed by a deputy when he drove to the defendant’s house in the middle of the day to interview the defendant regarding a theft reported by a neighbor, must be suppressed as the defendant’s house was only reachable by a private easement road, which lead to the defendant’s steep, poorly maintained driveway, that had a closed, but not locked, gate that was posted with "No Trespassing" and "Private Keep Out" signs. State v. Jessen, COA No. 25882-3-III (Jan. 29, 2008).

Facial Validity. While attempted felony murder does not exist as a crime in Washington, the defendant’s judgment and sentence was facially valid as the defendant was charged in the alternative with both attempted first degree felony murder and attempted first degree murder. The defendant’s PRP is, therefore, time-barred. In Re PRP of Richey, No. 80070-7 (Jan. 24, 2008).

Sentencing Challenges and Collateral Attacks. While the one-year time limit on collateral attack does not apply to sentences in excess of the court's jurisdiction, a sentence is not jurisdictionally defective merely because it is in violation of a statute or is based on a misinterpretation of a statute. In Re PRP of Richey, No. 80070-7 (Jan. 24, 2008).

LUPA. Where Ecology has reasonable notice of a final land use decision by the local permitting authority, it must pursue collateral attack of that decision through the Land Use Petition Act (LUPA), chapter 36.70C RCW. Ecology may not directly impose penalties under the Shoreline Management Act when a project has been constructed pursuant to valid building permits issued by the County after that County complied with applicable law (including the State Environmental Policy Act (SEPA), chapter 43.21C RCW). Twin Bridge Marine Park, LLC v. State Department of Ecology, No. 78462-1 (Jan. 24, 2008). Justice Fairhurst authored the concurring opinion. The dissenting opinion was authored by Justice Owens.

Free Crimes. RCW 9.94A.535(2)(c), which allows a court to impose an exceptional sentence based upon a judicial finding that "[t]he defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished", does not violate Blakely. State v. Newlun, COA No. 58762-5-I (Jan. 22, 2008).

Consecutive Sentences. RCW 9.94A.589(1)(b), which authorizes consecutive sentences for individuals who are convicted of two or more serious violent offenses arising from separate and distinct criminal conduct, does not apply to persistent offenders. When a court imposes a sentence of life in prison without the possibility of parole on multiple strikes, those sentences are to be served concurrently. State v. Crumble, COA No. 35501-9-II (Jan. 23, 2008).

Doubling Provision. RCW 69.50.408 does not create a sentencing enhancement and, therefore, does not have to be set forth in the charging information. The State, moreover, is not required to allege the existence of the prior convictions that trigger application of RCW 69.50.408. McNeal v. State, COA No. 35423-3-II (Jan. 23, 2008).

Blakely and Resentencings. The 2005 and 2007 "Blakely-fix" statutes may constitutionally apply to individuals who are resentenced for offenses committed prior to the adoption of those statutes. McNeal v. State, COA No. 35423-3-II (Jan. 23, 2008).

Jurors. The trial court did not err in excusing a juror mid-deliberations for mental and physical health reasons, without identifying the juror who had offended the excused juror. State v. Earl, COA No. 34629-0-II (Jan. 23, 2008).

Coroners. The statute of limitations for judicial review under RCW 68.50.015 is two years. The two year SOL may be equitably tolled in an action to compel the coroner to meet with the family as required by RCW 68.50.105, by a coroner’s failure to meet with a family in response to the family’s repeated request for such a meeting. Thompson v. Wilson, COA No. 36277-5-II (Jan. 23, 2008).

Revocation of Suspended Sentences. The defendant’s absconding from supervision tolled the termination date of his supervision, giving the court jurisdiction over the State’s revocation motion. State v. Robinson, COA No. 25568-9-III (Jan. 22, 2008).

Common Enemy Rule. The common enemy doctrine does not insulate upstream landowners, as a matter of law, from damage caused by diking, where the diking prevents the flow of water into side channels. RCW 86.12.037 does not provide immunity to governments from an unlawful takings claim based upon the construction and maintenance of flood control devices. Fitzpatrick v. Okanogan County, COA No. 25161-6-III (Jan. 22, 2008). Judge Brown authored the dissenting opinion.

Schools and Threats. A student and his parents did not have a negligence cause of action against a school for its handling of a death threat against the student. The school district’s suspension of the student who made the threat and its requirement that the threatening student obtain a clearance by a psychiatrist before returning to school satisfied its duty of care. Jachetta v. Warden Joint Consolidated School District, COA No. 26117-4-III (Jan. 24, 2008).

Social Worker Liability. A social worker, who completes a statement of facts in support of a petition to remove a child in response to an allegation of abuse, is not entitled to absolute immunity in a 42 U.S.C. § 1983 action alleging that the social worker fabricated the information in the affidavit. Beltran v. Santa Clara County, No. 05-16976 (9^th Cir. Jan. 24, 2008).

Muslim Prisoners. Prison officials may have violated the Religious Land Use and Institutionalized Persons Act, the Free Exercise Clause, and the Equal Protection Clause by denying a Muslim inmate’s request for kosher meals, instead of the ovo-lacto vegetarian diet currently provided as a religious dietary accommodation. Shakur v. Schriro, No. 05-16705 (9^th Cir. Jan. 13, 2008).

Excessive Force. An Oregon Police Department’s use of force policy was not unconstitutional due to its failure to use the phrase "probable cause": "reasonable belief" is not a lesser standard than "probable cause" as a matter of law. Price v. Sery, No. 06-35159 (9^th Cir. Jan. 22, 2008).

Pro Se Defendants. A stand-by attorney’s solo participation in a chambers conference regarding a question from the jury, probably violated the defendant’s Sixth Amendment right of self-representation. Frantz v. Hazey, No. 05-16024 (9^th Cir. Jan. 22,2008).

Group Religious Services. A jail’s policy of prohibiting a maximum security prisoner from attending group religious worship services substantially burdened the prisoner’s ability to exercise his religion under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. §§ 2000cc. The jail bears the burden of establishing that this policy is the least restrictive means of maintaining jail security. Greene v. Solano County Jail, No. 06-16957 (9^th Cir. Jan. 22, 2008).

WEEKLY ROUNDUP FOR JANUARY 18, 2008

Double Jeopardy and Plea Agreements. Vacating a conviction is the proper remedy when the conviction violates double jeopardy, even when entered pursuant to an indivisible plea agreement. State v. Knight, No. 79236-4 (Jan. 17, 2008).

Unlawful Possession of a Firearm. A court affirmatively misleads an individual when the court, at the time of conviction, fails to provide the individual with the statutorily required notice of his ineligibility to possess a firearm, by failing to check the paragraphs on the preprinted order prohibiting possession of firearms. The 15-year-old offender’s conviction for felon in possession must, therefore, be vacated. State v. Minor, No. 79003-5 (Jan. 17, 2008). Justice Madsen authored a concurring opinion. [Editor’s note: The majority does not explain whether the defendant is immune from the felon in possession law based upon his original felony adjudication, or whether this prosecution served to give him notice of his disability, such that he can be successfully prosecuted for future possession.]

Community Custody. The Department of Corrections has the power to sanction a felon for jailhouse misconduct, even though the "period" of community custody is tolled while the felon is in custody. An offender’s obligation to comply with terms of community custody, including not contacting certain individuals, continue while the offender is in custody. In re Personal Restraint of Dalluge, No. 79841-9 (Jan. 17, 2008). Justice Sanders authored the dissenting opinion.

Improper Argument. A prosecutor’s closing arguments that included a claim that the defendant’s failure to return to the scene of the crime to give his side to police was evidence of guilt, violated the defendant’s Fifth Amendment rights. State v. Thomas, COA No. 34335-5-II (Jan. 15, 2008).

Timeliness of Appeal. A notice of appeal is timely if proceeded by a motion for reconsideration that is both filed a served within 10 days of the ruling that the party is seeking to have reconsidered. The fact that the hearing on the reconsideration motion is not noted within 30 days of the entry of the order being reconsidered will not render the subsequent notice of appeal untimely. Singleton v. Naegeli Reporting Corp., COA No. 35134-6-II (Jan. 15, 2008).

Transcripts. An action under the Washington Consumer Protection Act, alleging that a court reporter inflated the number of pages in its transcripts by adding tabs and inserting new paragraphs, is not barred by any regulation promulgated pursuant to Chapter 18.145 RCW. Singleton v. Naegeli Reporting Corp., COA No. 35134-6-II (Jan. 15, 2008).

High Speed Chases. Police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. § 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm. Bingue v. Prunchak, No. 05-16388 (9th Cir. Jan. 15, 2008).

Right to Counsel. The Supreme Court has held that a criminal defendant has a constitutional right to counsel who is free of conflicts of interest. It also has held that a defendant does not have a constitutional right to an appointed lawyer with whom he has a "meaningful relationship" so long as the lawyer acts as the client’s advocate. A judge does not violate a defendant’s right to counsel when, after inquiry, refuses to appoint a new counsel where the defendant claims that an "irreconcilable conflict" has arose between the defendant and his current attorney if no actual conflict of interest exists and the defendant’s reasons for distrusting the lawyer are not supported. Plumlee v. Masto, No. 04-15101 (9th Cir. Jan. 17, 2008).

WEEKLY ROUNDUP FOR JANUARY 11, 2008

The Court granted petitions for review in the following cases on Tuesday, January 8th:

Investigatory Stops. Whether a warrantless investigatory stop of the defendant was justified based upon the police’s observing the defendant’s startled reaction upon seeing them drive by the bus shelter where he was sitting with others at 12:20 a.m., his movements that were consistent with an attempt to conceal something in the bus shelter, and his crossing the street in an apparently illegal manner. State v. Gatewood, No. 79992-0. King County. COA opinion unpublished.

Community Custody. A sex offender’s challenge to community custody restrictions upon his possessing or accessing pornographic materials or other sexual stimulus material and from frequenting establishments whose primary business pertains to sexually explicit or erotic material. State v. Bahl, No. 79988-1. Snohomish County. COA opinion reported at 137 Wn. App. 709 (2007).

Public Disclosure Act. A challenge to the $15 per day penalty that was imposed for a violation of the PDA. The COA held that the penalty was insufficient in light of the county’s gross negligence. Yousoufian v. Office of Ron Sims, No. 80081-2. COA opinion reported at 137 Wn. App. 69 (2007).

Unemployment Compensation. Voluntary quit and eligibility for unemployment benefits. Includes issues regarding the title of the bill. Batey v. Dep’t of Employment Sec., No. 80309-9, consolidated with Spain v. Dep’t of Employment Sec., No. 79878-8. Batey COA opinion reported at 137 Wn. App. 506 (2007).

Contracts. Proper interpretation of an option to purchase contract clause. Pardee v. Jolly, No. 80066-9. COA opinion is unpublished.

Product Liability. An asbestos suit. Simonetta v. Viad Corp., No. 80076-6. COA reported at 137 Wn. App. 15 (2007).

Product Liability. An asbestos suit. Braaten v. Saberhagen Holdings, Inc., No. 80251-3. COA reported at 137 Wn. App. 32 (2007).

The Court also accepted a transfer from the court of appeals of the following case:

Double Jeopardy. State v. Kier, No. 81030-3. King County. Kier was convicted of robbery in the first degree and assault in the second degree arising out of the same incident. On appeal, Kier argued that the assault conviction should be dismiss on double jeopardy grounds. Kier relies on State v. Freeman, 153 Wn.2d 765, 108 P.3d 753 (2005).

Escape. RCW 9.94A.525(14) does not alter the usual way of scoring prior offenses when the current conviction is for escape. Each prior is individually counted when calculating the offender score. In re Personal Restraint of Lofton, COA No. 57295-4-I (Jan. 7, 2008).

Telephone Harassment. The First Amendment right to petition does not insulate a person’s threats of harm from prosecution, solely because the threats were made to a public servant regarding that public servant’s official acts. State v. Alphonse, COA No. 58449-9-II (Jan. 7, 2008).

Banishment Orders. The order prohibiting the defendant from entering the city except as necessary for court hearings was overbroad, as the victim could have been sufficiently protected with an order requiring the defendant to stay a specific distance away from the victim’s home. State v. Alphonse, COA No. 58449-9-II (Jan. 7, 2008).

Timely Execution of Search Warrants. A forensic examination of information stored on copies of a hard drive may extend beyond the 10-day deadline specified in CrR 2.3(c), provided the computer is seized within the 10-day period. A delay in analyzing the information stored on a hard drive will only result in the suppression of evidence if: (1) the delay caused a lapse in probable cause; (2) it created unfair prejudice to the defendant; or (3) officers acted in bad faith. State v. Grenning, COA No. 32426-1-II (Jan. 8, 2008).

Medical Marijuana. The mere production of a document purporting to be a marijuana use authorization does not negate probable cause and does not prohibit further investigation by the State. An individual who utilizes marijuana pursuant to a doctor’s recommendation for a condition not listed in RCW 69.51A.010 is, as a matter of law, not a qualifying patient. State v. Fry, COA No. 25524-7-III (Jan. 8, 2008).

Blakely. Impaneling a jury to consider the evidence in support of aggravating factors, prior to the statutory requirement to do so, is harmless error. State v. Doney, COA No. 24621-3-III (Jan. 8, 2008).

Free Speech and Public Forums. A requirement that street performers obtain a permit and wear a badge during performances at the Seattle Center passes muster under the First Amendment. A rule that bars active solicitation by street performers, but allows street performers to provide a receptacle for donations and to place a sign asking for donations also passes muster under the First Amendment. A rule that limits street performances to sixteen designated locations, each of which is located in a high-traffic area, also passes muster under the First Amendment. A final provision, that forbids anyone in the Seattle Center from engaging in speech activities within 30 feet of a captive audience, also survives a facial First Amendment challenge. Berger v. City of Seattle, No. 05-35752 (9th Cir. Jan. 9, 2008).

WEEKLY ROUNDUP FOR JANUARY 4, 2008

Kidnapping. A parent may be convicted of kidnapping his own children even if there is no court order giving custody of the children to another. State v. Lopez, COA No. 58475-8-I (Dec. 31, 2007).

Custodial Interrogation. A phone conversation with police investigators initiated by a suspect who is in jail for an unrelated offense does not constitute a "custodial interrogation" under Miranda v. Arizona, 384 U.S. 436, 442 (1966), and its progeny. Saleh v. Fleming, No. 04-35509 (9th Cir. Jan. 3, 2008).