WAPA's Legal Notes

WEEKLY UPDATE FOR DECEMBER 31, 2009

Excited Utterances. The state confrontation clause, Wash. Const. art. I, § 22, is more protective than the Sixth Amendment. Statements by this domestic violence victim to a 911 operator were admissible under the Sixth Amendment (Crawford / Davis) because they were made under circumstances suggesting that the declarant was simply seeking help. The statements made by the domestic violence victim to the 911 operator were admissible under article I, § 22, because they fell within the res gestae doctrine as it existed when our state constitution was adopted. State v. Pugh, No. 80850-3 (Dec. 31, 2009). Justice Chambers authored a concurrence. Justice Sanders dissented.

Judicial Immunity. A deputy, who was transporting a prisoner from court to jail pursuant to a judge’s order, is not protected by judicial immunity from a suit for injuries the prisoner inflicted on another when trying to escape. Lallas v. Skagit County, No. 81672-7 (Dec. 31, 2009).

SVP– Recent Overt Act. A sex offender's statement to authorities that he will inflict

sexually violent harm against minor boys if he is not committed is sufficient evidence of a recent overt act to support a sexually violent predator (SVP) petition when that statement is considered in the context of the sex offender's history and mental condition. In re Detention of Danforth, COA No. 61967-5-I (Dec. 28, 2009).

Civil Discovery Violations. A court, subject to the exercise of its sound discretion, has the authority to hear a motion to compel discovery or a motion for sanctions in the absence of a CR 26(i)

certification or where the certification is allegedly defective. The trial court’s decision will be reviewed under the abuse of discretion standard. Amy v. Kmart of Washington, L.L.C., COA No. 62312-5-I (Dec. 28, 2009). [Editor’s note: This decision is contrary to Division Two’s position. See, e.g. Rudolph v. Empirical Research Sys., 107 Wn. App. 861, 866, 28 P.3d 813 (2001)]

Crosswalks. A negligence claim for failing to maintain a safe crosswalk could go forward even though the plaintiff produced no evidence of any physical defect rendering the crosswalk inherently dangerous or misleading, and the MUTCD did not require the city to remove, move, or further regulate the marked crosswalk at issue. Chen v. City of Seattle, COA No. 62838-1-I (Dec. 28, 2009).

Lesser Degree Instructions. Defense counsel's all or nothing strategy in a trial for first degree animal cruelty was not a legitimate trial tactic and constituted deficient performance because the defense presented evidence to call into question the State's theory on starvation, not the entire crime. State v. Smith, COA No. 38182-6-II (Dec. 29, 2009).

Gant and Guilty Pleas. A defendant who pled guilty prior to the issuance of Gant, waives the ability to appeal his conviction on the grounds that evidence was improperly seized. State v. Brandenburg, COA No. 28017-9 (Dec. 29, 2009).

Tasers. While tasers and stun guns fall into the category of non-lethal force, they may still be excessive force when their use is not justified by the circumstances. An officer who believes he is dealing with a mentally disturbed individual should make a greater effort to take control of the situation through less intrusive means. An officer should give fair warning that he is going to deploy a taser if the suspect does not comply with orders. An officer uses excessive force by deploying a taser, without warning, against a nonviolent, stationary misdemeanant who is 20 feet away from the officer. Bryan v. McPherson, No. 08-55622 (Dec. 28, 2009).

WEEKLY UPDATE FOR DECEMBER 24, 2009

Vehicle Searches. Once a defendant is handcuffed and placed in the back of a patrol car, neither officer safety nor preservation of evidence of the crime of arrest justifies a warrantless search of a vehicle. When a defendant is arrested on an outstanding arrest warrant, the crime of arrest is the crime underlying the arrest warrant. State v. Valdez, No. 80091-0 (Dec. 24, 2009). Chief Justice Alexander authored a concurring opinion. Justice Jim Johnson authored a separate concurring opinion. [Editor’s note: This case involved the arrest of a driver. No mention is made regarding the passenger’s access to evidence in the vehicle, and whether the passenger’s presence justifies a warrantless search to prevent destruction of evidence. Likely, the Court did not reach this issue because the "crime of arrest" was the outstanding arrest warrant."].

Other Sexual Misconduct. RCW 10.58.090, which permits but does not require

admission of evidence of other "sexual offenses" in sex offense prosecutions, is not an ex post facto law, does not violate the separation of powers between the legislative and judicial branches, and does not violate either the equal protection or the due process clauses of the state or federal constitutions. State v. Scherner, COA No. 62507-1-I (Dec. 21, 2009).

Other Sexual Misconduct. RCW 10.58.090, which addresses the admissibility of evidence of a defendant's past sex offenses in a criminal sex offense action, notwithstanding ER 404(b), does not violate the separation of powers doctrine, and does not violate the federal state prohibitions against ex post facto laws in prosecutions of offenses committed prior to the statute’s effective date. State v. Gresham, COA No. 62862-3-I (Dec. 21, 2009).

Time for Trial. A trial that commenced 323 days after the defendant’s arraignment was timely under CrR 3.3, and did not violate the defendant’s constitutional right to a speedy trial. The defendant expressly agreed to some of the continuances, and the illness of one of the State’s witnesses justified many of the others. A county’s difficulty in accommodating a defendant’s affidavit of prejudice, however, falls within the "routine court congestion" category. State v. Lackey, COA No. 37682-2-II (Dec. 22, 2009).

Tribal Fishing. If a non-member spouse assists the member spouse to fish on the Reservation or at the Tribe's usual and accustomed fishing places in a manner approved in the Tribal Code, the State cannot impose different conditions unless reasonable and necessary for the conservation of the resource. When a Tribal Code does not require the presence of the tribal member, the State statute that requires the presence of the tribal member cannot be enforced. State v. Guidry, COA No. 37301-7-II (Dec. 22, 2009). Judge Bridgewater dissented.

Public Records Act. A pro se inmate, who prevailed in a Public Records Act proceeding against the Washington State Institute for Public Policy (WSIPP), properly saw his award reduced by CR 11 sanctions for false and/or misleading information in an attempt to inflate the costs he would be awarded under the judgment. CR 78(e) did not bar WSIPP’s CR 60(b) motion to vacate the judgment on the inmate’s cost bill. Mitchell v. Washington State Institute for Public Policy, COA No. 38777-8-II (Dec. 22, 2009).

Statute of Limitations. When a criminal charge is filed outside the normal statute of limitations, a prudent prosecutor will allege the facts necessary to toll the statute of limitations in the charging document. When a statute of limitations challenge is raised, the State bears the burden of establishing that sufficient time is tolled to permit the matter to proceed. A period of in-state incarceration does not toll the statute of limitations. State v. Walker, COA No. 26736-9-III (Dec. 22, 2009). [Editor’s note: The charges at issue here are for bail jumping. To avoid statute of limitation problems, a prosecutor may wish to file charges when a defendant first fails to appear in court, rather than after the defendant reappears.]

Certification of Police Officers. A police officer who resigned, in anticipation of termination, while an internal investigation was pending into his handling of a NVOL w/ ID stop, was properly stripped of his police officer certification as his lies to his superiors during the internal investigation constituted disqualifying conduct, specifically the making a false or misleading statement -- within the meaning of Evidence Rule 609(a) -- to a public servant pursuant to RCW 9A.76.175. An officer cannot object to the composition of the hearing panel for the first time on appeal. The composition of the hearing panel is determined by the law in effect on the day the appeal is filed. Martin v. Criminal Justice Training Commission, COA No. 27435-7-III (Dec. 24, 2009).

WEEKLY UPDATE FOR DECEMBER 18, 2009

Custodial Interference. The lawfulness of a custody order is a question for the trial court to decide as a matter of law in a prosecution for custodial interference. Knowledge of the right to physical custody is not an implied element of first degree custodial interference. State v. Boss, No. 81897-5 (Dec. 17, 2009).

Exceptional Sentences. A trial court, following a Blakely-based reversal of an exceptional sentence, is authorized to impanel a jury for the purpose of considering whether aggravating factors exist that bear on resentencing when the defendant was not given notice before trial of the State's intent to seek an exceptional sentence and the factors upon which its request is based. Impaneling a jury to consider aggravating factors does not violate the prohibition against double jeopardy. State v. Powell, No. 80496-6 (Dec. 17, 2009). Justice Stephens authored a concurring opinion. Justice Owens authored a dissenting opinion. [Editor’s note– The lead opinion indicates that aggravating circumstances do not have to be included in the information. Including the aggravating circumstances in the information, however, prevents the defendant from entering a guilty plea to only the "base crime." See generally State v. Bowerman, 115 Wn.2d 794, 802 P.2d 116 (1990) (a defendant must plead guilty to the entire charge unless the prosecution agrees to accept a partial plea).]

Negligent Investigation. Stepparents do not have standing to bring a claim of negligent investigation against the Department of Social and Health Services pursuant to RCW 26.44.050. Ducote v. State of WA Dept. of Social & Health Services, No. 81714-6 (Dec. 17, 2009). Justice Chambers authored a dissenting opinion.

Growth Management Act. The Western Washington Growth Management Hearings Board properly concluded that the County must revise its comprehensive plan to conform to 1997 amendments to the GMA that set out criteria for establishing limited areas of more intensive rural development and rural densities. The Board, however, erroneously relied on a "bright line" rural

density rule of no more than one residence per five acres. Gold Star Resorts, Inc. v. Futurewise & Whatcom County, No. 80810-4 (Dec. 17, 2009).

Legal Financial Obligations. The denial of a RCW 10.01.160(4) motion to terminate legal financial obligations that were imposed as part of the judgment and sentence is not appealable. State v. Smits, COA No. 62243-9-I (Sept. 21, 2009, publication ordered Dec. 14, 2009).

Felony Murder. Second degree felony murder, predicated upon assault, does not violate equal protection despite the fact that a defendant who is charged with intentional murder may have a jury instructed on the lesser included offense of manslaughter. State v. Gordon, COA No. 63815-7-I (Dec. 14, 2009).

Exceptional Sentences. Where an appellate court has further defined the legal standard of a statutory aggravating factor, the failure to set that standard out in a jury instruction is an error of constitutional magnitude that may be raised for the first time on appeal. State v. Gordon, COA No. 63815-7-I (Dec. 14, 2009). [Editor’s notes: There are pattern jury instructions for both of the aggravating circumstances, deliberate cruelty and victim vulnerability, that were at issue in this case.]

Community Custody. Former RCW 9.94A.737(2), a statute directing that when an inmate violates the conditions of community custody a third time, he must be sent back to prison for the remainder of his original sentence, only applies to an inmate who committed the crimes for which the inmate was originally sentenced prior to its effective date. Wa. State Dept. of Corrections v. Madsen, COA No. 62143-2-I (Dec. 14, 2009).

Pro se. Absent a court order, standby counsel does not have a duty to obtain affidavits or subpoena witnesses in support of the pro se defendant’s motion to withdraw guilty plea. State v. Pugh, COA No. 38149-4-II (Dec. 15, 2009).

LUPA. A motion for reconsideration of a county hearing examiner's decision is a "final

determination" under former RCW 36.70C.020(1)(a) (1995), even though a motion for reconsideration is pending with the county. A motion for reconsideration, filed pursuant to a local county’s procedures, does not toll the strict LUPA filing deadline. Mellish v. Frog Mountain Pet Care, COA No. 37583-4-II (Dec. 15, 2009).

Unfair Labor Practices. The termination of a police officer, who had signed a last chance employment agreement following a DUI arrest, for violating a no contact order and for using his badge to enter a night club without paying a cover charge, while in the midst of litigating ULPs with the union regarding random drug testing, did not constitute an unfair labor practice. The union did not establish that union animus was a substantial motivating factor behind the officer’s termination. Yakima Police Patrolman’s Society v. City of Yakima, COA No. 37865-5-II (Dec. 15, 2009).

Juror Misconduct. Evidence that various jurors referred to a party’s attorney in a "racially derogatory" manner during deliberations, was sufficient to justify the grant of a new trial. Turner v. Stime, COA No. 27037-8-III (Dec. 17, 2009).

Public Records Act. A county fails to adequately search its records for a requested document when it does not examine the original computer upon which the requested record was created. There is no cause of action under the PRA to enforce the re-disclosure of records known by the requester to already be in its possession. The scope of discovery in a PRA case is limited to whether complete disclosure has been made by the agency in response to a request for information. Neighborhood Alliance of Spokane County v. County of Spokane, COA No. 27184-6-III (Aug. 11, 2009, publication ordered Dec. 15, 2009).

Cell Phones. The warrantless search of data within a cell phone seized incident to a lawful

arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances. State v. Smith, No. 2009-OHIO-6426 (Dec. 15, 2009).

WEEKLY UPDATE FOR DECEMBER 11, 2009

Emergency Entry. The Fourth Amendment was not violated when officers forced their way into a home, without a warrant, in order to provide emergency aid to the occupants. The officers were responding to a report of a disturbance, and when they arrived on the scene they encountered a tumultuous situation in the house and signs of a recent injury, perhaps from a car accident, outside. Officers do not need ironclad proof of "a likely serious, life-threatening" injury to invoke the emergency aid exception. Michigan v. Fisher, No. 09-91 (Dec. 7, 2009). [Editor’s note: This decision states that an officer’s subjective belief that someone is seriously injured is irrelevant under the Fourth Amendment. Existing Washington case law, however, requires the State to establish that: (1) the searching officer subjectively believed an emergency existed; and (2) a reasonable person in the same circumstances would have thought an emergency existed. State v. Lynd, 54 Wn. App. 18, 21, 771 P.2d 770 (1989).

Habeas Corpus. A state procedural rule is not automatically "inadequate" underthe adequate state ground doctrine—and therefore unenforceable on federal habeas review—because the state rule is discretionary rather than mandatory. Beard v. Kindler, No. 08-992 (Dec. 8, 2009).

Interlocutory Appeals. Disclosure orders about the attorney-client privilege cannot qualify for immediate appeal. Mohawk Industries v. Carpenter, No. 08-678 (Dec. 8, 2009).

Social Contacts. The arrival of a second officer can convert a social contact into an unlawful seizure. Asking a person to perform an act such as removing hands from pockets adds to the officer's progressive intrusion and moves an interaction further from the ambit of valid social contact, toward unlawful seizure. Requesting to frisk is inconsistent with a mere social contact. If an officer feels jittery about bulges in a citizen’s pockets, the officer should terminate the social contact and walk away. State v. Harrington, No. 81719-7 (Dec. 10, 2009).

Pro Se Defendants. Const. art. I, § 22, gives a defendant the right to represent himself on appeal. This right, however, is neither self-executing nor absolute. An untimely request may be denied. A defendant who initially appeared through counsel, may have to demonstrate good cause for the withdrawal of counsel. State v. Rafay, No. 80865-1 (Dec. 10, 2009).

Merger. When two crimes merge under constitutional double jeopardy principles, the proper remedy is to vacate the lesser conviction and impose a sentence on the remaining conviction. State v. League, No. 82991-8 (Dec. 10, 2009).

Closing Argument. A prosecutor does not commit error during closing argument by calling upon the jury to return a "just verdict." It is error, however, for a prosecutor to request that a jury "declare the truth," as it is not the jury’s job to "solve" a case or to "declare what happened on the day in question." A prosecutor’s statement to the jury that "in order to find the defendant not guilty, you have to say 'I don't believe the defendant is guilty because,' and then you have to fill in the blank," is improper because it starts from a premise that the jury has a duty to convict. Comparing the certainty required to convict with the certainty people often require when they make everyday decisions -- both important decisions and relatively minor ones -- is improper as it trivializes and ultimately fails to convey the gravity of the State's burden and the jury's role in assessing the case against the defendant. State v. Anderson, COA No. 37325-4-II (Dec. 8, 2009).

Probable Cause to Arrest. An attack on the sufficiency of probable cause to support an arrest may not be raised for the first time on appeal under RAP 2.5(a). The defendant’s arrest for fourth degree assault-DV was supported by probable cause where the arresting officer responded to a report of domestic violence by a man against a woman at a particular house, the officer observed evidence of a struggle in the front yard of that house, the man who answered the door of the house refused to respond to questions about what was going on in the house that evening, the only other person in the house, a woman, looked distraught and disheveled, with puffy eyes and leaves and grass in her hair, and she had a finger that was bleeding from a recently torn nail. State v. Trujillo, COA No. 27351-2-III (Dec. 10, 2009).

Escape from Community Custody and Bail Jumping. The defendant’s CCO was properly allowed to testify about telephone calls she received from the defendant in which the defendant stated, in offensive language, that he would not be reporting as required, as these calls were relevant to the mental element. It is not a defense to a charge of bail jumping that the court did not convene on the date of the offense. State v. Aguillar, COA No. 26998-1-III (Sept. 3, 2009, publication ordered Dec. 8, 2009).

Attorney as Witness. An attorney can be removed from litigation when he or she is a necessary witness, but a court must justify this action with appropriate findings regarding the materiality of the evidence that the attorney will tender, whether the evidence is unobtainable elsewhere, and whether the testimony is or may be prejudicial to the testifying attorney's client. American States Insurance Company v. Nammathao, COA No. 27641-4-III (Dec. 10, 2009).

Prosecutorial Immunity. Although the prosecutor is entitled to absolute immunity for his decision to charge two defendants with murder and for refusing to release them for five days post-charging in light of new information, the prosecutor only has qualified immunity for advising the police officers to add murder charges to the booking sheet two days before actually charging the defendants with murder. Ewing v. City of Stockton, No. 08-15732 (9th Cir. Dec. 9, 2009).

School Interviews. A student who is removed from class to be questioned by a caseworker and a uniformed police officer regarding alleged abuse has been seized for Fourth Amendment purposes. A warrantless seizure of an alleged victim of child sexual abuse will violate the child’s Fourth Amendment rights unless the officers have a court order, exigent circumstances, or parental consent. Greene v. Camreta, No. 06-35333 (9th Cir. Dec. 10, 2009).

WEEKLY UPDATE FOR DECEMBER 4, 2009

Ineffective Assistance of Counsel. It was objectively unreasonable for the Florida Supreme Court to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. Specifically, defense counsel failed to discover and present evidence of the defendant’s abusive childhood, his heroic military service and the trauma he suffered because of it, his long-term substance abuse, and his impaired mental health and mental capacity. Porter v. McCollum, No. 08-10537 (Nov. 30, 2009).

Cert. Grants of Interest to Prosecutors:

Negligent Driving. A law enforcement officer may not issue a traffic citation for second degree negligent driving, when the offense did not occur in the officer’s presence. The law enforcement officer encountered the offender, whose vehicle was facing the wrong direction on the shoulder of the SR 512 on-ramp, after receiving reports from other drivers that a vehicle was traveling the wrong direction on the highway. State v. Magee, No. 81746-4 (Dec. 3, 2009). Justice Madsen authored a concurring opinion, in which she notes that IRLJ 2.2(b)(2) authorizes a city attorney or deputy prosecutor to issue a notice of infraction. This rule does not require that the offense occur in the prosecutor’s presence.

Probation Searches. A probation officer must have probable cause to believe that a probationer resides at a particular residence before searching that residence. In this context, probable cause exists when an officer has information that would lead a person of reasonable caution to believe that the probationer lives at the place to be searched. The information known to the officer must be reasonably trustworthy. Only facts and knowledge available to the officer at the time of the search should be considered. State v. Winterstein, No. 80755-8 (Dec. 3, 2009). Justice Jim Johnson authored a concurring opinion in which he contends that the probation officer clearly had probable cause to believe the defendant lived at the residence.

Inevitable Discovery Doctrine. The inevitable discovery doctrine is incompatible with article I, section 7 of the Washington State Constitution. State v. Winterstein, No. 80755-8 (Dec. 3, 2009). Justice Jim Johnson authored a concurring opinion in which he contends that the inevitable discovery doctrine discussion is mere dictum.

On December 1, 2009, the Washington Supreme Court accepted review of the following cases:

Land Use. A recreational overlay district that was adopted to accommodate an extension of a bicycle/pedestrian trail, across and adjacent to agricultural lands, did not constitute an amendment to the county's comprehensive plan and did not run afoul of state statutes that encourage the preservation of agricultural land. Feil v. Eastern Washington Growth Management Board, COA No. 28248-1-III (Dec. 3, 2009).

Pro Se Defendants. It was not an abuse of discretion to deny a pro se defendant’s request for reappointment of counsel and for a continuance of the trial, when the defendant had previously received 12 or 13 continuances over a 3 1/2 year period and the defendant clearly was manipulating his status as represented or pro se, in order to delay proceedings. United States v. Thompson, No. 07-50351 (9th Cir. Dec. 3, 2009).

WEEKLY UPDATE FOR NOVEMBER 27, 2009

Confrontation. Neither Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), nor the Sixth Amendment confrontation clause precludes a qualified expert from offering an opinion in reliance upon another expert's work product. State v. Lui, COA No. 61804-1-I (Nov. 23, 2009).

Witness Tampering. The State is not required to prove that the defendant believed the was competent to testify according to a technical legal definition of competency. The victim does not need to testify under oath for a conviction of witness tampering to be upheld. An express threat or a promise of reward is evidence that may support a charge of witness tampering, but it is not an element of the charge. State v. Thompson, COA No. 61998-5-I (Nov. 23, 2009).

DNA Collection Fee. The state and federal constitutional prohibitions against ex post facto laws are not a basis for avoiding the application of the 2008 amendment to the DNA collection fee statute, that removed the "hardship" exemption to the fee. State v. Thompson, COA No. 61998-5-I (Nov. 23, 2009).

LUPA. A petitioner’s filing of a late administrative appeal will prevent a petitioner from exhausting administrative remedies, and will deprive the petitioner of LUPA standing. Lack of notice did not provide a basis for equitably tolling the statute of limitations for filing the necessary administrative appeal. Nickum v. City of Bainbridge, COA No. 38217-2-II (Nov. 24, 2009).

WEEKLY UPDATE FOR NOVEMBER 20, 2009

Ineffective Assistance of Counsel. Defendant did not satisfy the prejudice prong of Strickland as the introduction of additional mitigation evidence would have opened the door to damaging evidence regarding a prior murder. Wong v. Belmontes, No. 08-1263 (Nov. 16, 2009).

Bail Bond Forfeiture. The trial court abused its discretion by refusing to vacate a default judgment of forfeiture against a surety when the defendant was returned to custody, through no efforts of the surety, within the 60 days provided by RCW 10.19.105. State v. Kramer & All City Bail Bonds, No. 81071-1 (Nov. 19, 2009). Justice Fairhurst authored the dissenting opinion.

ER 404(b). In a prosecution for armed assault and unlawful possession of a firearm, evidence that the defendants possessed the same guns used to shoot into the apartment in separate incidents was admissible under ER 404(b). The limiting instruction that was provided to the jury did not constitute an improper comment on the evidence. State v. Tieskotter, COA No. 63816-5-I (Nov. 16, 2009).

Canine Sniffs. A canine sniff of air coming from the open window of a vehicle is not a search that requires a search warrant. State v. Tieskotter, COA No. 63816-5-I (Nov. 16, 2009).

Open Door. A defendant may open the door to evidence that would otherwise be inadmissible, even if constitutionally protected, if the rebuttal evidence is relevant. State v. Tieskotter, COA No. 63816-5-I (Nov. 16, 2009). [Editor’s note: This holding is consistent with prior case law, but conflicts with the recent Division II case of State v. Jones, 144 Wn. App. 284 (2008).]

Firearm Enhancement. A verdict form that uses the term "deadly weapon" does not preclude the imposition of a firearm enhancement, if the charging document specifically alleges the firearm enhancement and the only weapon at issue during the trial is a firearm. State v. Tieskotter, COA No. 63816-5-I (Nov. 16, 2009).

Drugs. A conviction for manufacturing methamphetamine in the kitchen and a conviction for manufacturing marijuana in the basement did not constitute the same criminal conduct. Convictions for the manufacturing and possession of methamphetamines do not comprise same criminal conduct because the possession and manufacture of methamphetamines require two separate objective intents -- a present intent and a future intent. Because marijuana is manufactured directly from marijuana seeds and, under RCW 69.50.101(q), possessing seeds is the equivalent of possessing marijuana plants, manufacturing of marijuana and possession of marijuana constitute same criminal conduct. State v. Bickle, COA No. 37664-4-II (Nov. 17, 2009).

Terry Stops. An officer may briefly detain a vehicle's driver for investigation when the officer knows that there are outstanding arrest warrants for the van's registered owner, and the driver of the van is the same sex as the registered owner and appears to fit the physical description of the registered owner. State v. Bliss, COA No. 37393-9-II (Nov. 17, 2009).

Time for Trial. Continuances that were granted over the defendant’s objection to allow trial counsel and the State to engage in "negotiations" violated the time for trial rule as such continuances were contrary to RPC 1.2(a) as the defendant had rejected further negotiations. Continuances granted due to the purported unavailability of the trial DPA failed on this record, as there was no indication that the matter was timely assigned to the trial DPA once negotiations broke down. State v. Saunders, COA No. 37621-1-II (Nov. 17, 2009). [Editor’s Note: This case identifies a trap for the unwary prosecutor. An agreed continuance under CrR 3.3(f)(1) has to be signed by the defendant. No substitute is possible. If the defendant can't or won't sign, the continuance must be supported by findings under CrR 3.3(f)(2).]

Jury Misconduct. The trial court did not err by denying a motion for a new trial based upon a juror looking up the term "substantial", where the juror did not share the definition with the other jurors. State v. Fry, COA No. 27406-3-III (Nov. 19, 2009).

WEEKLY UPDATE FOR NOVEMBER 13, 2009

Ineffective Assistance of Counsel. The ABA’s Standards for Criminal Justice do not set the standard by which a defense attorney’s conduct will be measured. Bobby v. Van Hook, No. 09-144 (Nov. 9, 2009).

Exceptional Sentences. A the defendant must stipulate to both facts that compromise an aggravating factor and to judicial fact-finding before a jury can be dispensed with. A defendant’s agreement that the court can consider the statements in the certificate of probable cause to determine the factual basis for the guilty plea, does not allow the judge to find aggravating circumstances. Under the sentencing provisions in effect at the time of the defendant's crime, it was procedurally impossible for the trial court to impanel a jury to reach a constitutionally acceptable finding of aggravating factors to support the defendant’s exceptional sentence. As neither the 2005 nor the 2007 amendments to the applicable sentencing provisions cured the problem in this case, and harmless error analysis does not apply, the defendant must be resentenced within the standard range. In re Personal Restraint of Beito, No. 77973-2 (Nov. 12, 2009). Justice Jim Johnson authored the dissenting opinion.

Implied Consent Warnings. The implied consent statute and the WSP warnings are not incomplete and misleading due to the absence of a warning that under RCW 46.61.506(1), the privilege to drive could be suspended, revoked, or denied if a test shows the driver had an alcohol concentration less than 0.08 but the driver is nevertheless convicted of being under the influence. The statute and the WSP implied consent warnings are not insufficient due to their failure to inform the driver that a mandatory jail term flowed from a conviction after refusing the test. State v. Elkins, COA No. 61839-3-I (Aug. 24, 2009, publication ordered Nov. 9, 2009).

Shoreline Hearings Board. The shorelines hearings board lacks jurisdiction to review conditions to a substantial development permit where those conditions arise from Clallam County's critical areas ordinance. Kailin v. Clallam County, COA No. 63901-3-I (Nov. 9, 2009).

Gant. Evidence of identity theft that was found during a search of the car after the driver, who was arrested for use of drug paraphernalia and was secured in the back of the patrol car, was lawfully seized as the arresting officer testified that he searched the vehicle for drugs– which is evidence related to the crime of arrest. State v. Snapp, COA No. 37210-0-II (Nov. 9, 2009).

Open View. Evidence seized from a car after the driver was arrested on a misdemeanor warrant and was secured in the back of the patrol car, was lawfully seized as the officer observed the chemicals and other methamphetamine manufacturing supplies through the windows, entered the vehicle solely to secure the hazardous items, and then obtained a search warrant. State v. Gibson, COA No. 37663-6-II (Nov. 9, 2009).

Pre-Text Stops. The stop of a vehicle, that officers noted while leaving a residence after unsuccessfully attempting to serve an arrest warrant on another named individual, turn without signaling was not an unlawful pre- textual stop. The stopping deputy testified that he routinely patrols the area in which he stopped the defendant and he regularly writes infractions for failing to signal. State v. Gibson, COA No. 37663-6-II (Nov. 9, 2009).

Opinion Testimony. Testimony that the defendant’s wife believed the victim’s allegations was improper and prejudicial lay opinion testimony. State v. Johnson, COA No. 37211-8-II (Nov. 9, 2009).

Vehicular Assault. Testimony that the officer handed the special statutory notice form to the interpreter, who then read from the form in Spanish, is sufficient to support the admissibility of the blood alcohol result. The State need only prove by a preponderance of the evidence that the defendant was advised of his right to an independent blood test. State v. Morales, COA No. 36941-9-II (Nov. 9, 2009).

Inevitable Discovery. Beer cans seized from a vehicle following the arrest of the driver for vehicular assault were admissible under the inevitable discovery exception to the warrant requirement as the beer cans would have been discovered during an inventory search as the vehicle was impounded pursuant to statute. State v. Morales, COA No. 36941-9-II (Nov. 9, 2009).

Obstructing a Law Enforcement Officer. The obstruction statute, RCW 9A.76.020(1), applies only to obstructive speech, in addition, to obstructive conduct. Providing a false name, date of birth, and other inaccurate information that delays the officer’s ability to identify the defendant is sufficient to support a conviction for this crime. State v. Williams, COA No. 37619-9-II (Nov. 9, 2009).

Fees. The assessment levied by the Mason County Conservation District against landowners within the district a $5.00 per parcel fee to fund programs to protect water quality was a lawful fee, rather than a tax. Cary v. Mason County, COA No. 37981-3-II (Nov. 9, 2009).

Inevitable Discovery. A defendant’s motion to suppress drugs found in a pre-Gant search of a vehicle was properly denied, as the trooper would have inevitably found the drugs during an inventory search that was justified by the defendant’s arrest for DWLS and the defendant’s inability to identify a licensed driver who could retrieve the vehicle from the side of the roadway. United States v. Ruckes, No. 08-30088 (9th Cir. Nov. 9, 2009) [Editor’s note– The court warned, however, "that the inevitable discovery doctrine will not always save a search that has been invalidated under Gant. The government is still required to prove, by a preponderance of the evidence, that there was a lawful alternative justification for discovering the evidence."]

WEEKLY UPDATE FOR NOVEMBER 6, 2009

On Wednesday, November 4, 2009, the Court accepted review of the following cases:

Restoration of Firearm Rights. An individual, who was convicted of a class B felony, may not have her right to possess a firearm restored until she has spent 10 crime-free years in the community following her release from custody. State v. Mihali, COA No. 37906-6-II (Sep. 3, 2009, publication ordered Nov. 3, 2009).

Residential Burglary. The crime of obstructing a law enforcement officer cannot serve as a predicate crime for residential burglary as it is neither a crime against person or property. State v. Devitt, COA No. 27577-9-III (Nov. 3, 2009).

Public Funds. The relocation, at significant expense to Yakima County, of a wrecking yard from a flood-prone island to a residential neighborhood was authorized by the county's interest in limiting further flooding, and, thus, did not constitute a gift of public property or credit, nor was it an improper land "swap." Citizen Protecting Resources v. Yakima County, No. 27803-4-III (Nov. 5, 2009).

WEEKLY UPDATE FOR OCTOBER 30, 2009

DUI Sentencing. A "prior offense within seven years" under RCW 46.61.5055 is one thatoccurs before the arrest for the current offense. City of Seattle v. Winebrenner, No. 81279-9 (Oct.

29, 2009). Justice Madsen authored a concurring opinion.

Untruthful Police Officers. An arbitrator’s decision requiring the reinstatement of a police

officer who was terminated for 29 documented incidents of misconduct, including untruthfulness,

was not subject to vacation as being contrary to public policy. Kitsap County Deputy Sheriff's Guild

v. Kitsap County, No. 80720-5 (Oct. 29, 2009). Justice Jim Johnson authored the dissenting opinion.

Appellate Practice. When a defendant dies while a direct appeal of his or her conviction is pending, RAP 3.2, providing for substitution of parties on appeal, allows an heir of the defendant to challenge any financial obligations imposed on the deceased defendant and to pursue the appeal on the merits. If no one steps forward to seek substitution, the conviction and all financial obligations will stand. State v. Webb, No. 81314-1 (Oct. 29, 2009). Justice Sanders authored the dissenting opinion.

DNA Collection Fee. The DNA collection fee is not punitive, so the provision in effect at the time of sentencing applies, regardless of when the crime was committed. State v. Brewster, COA No. 62764-3-I (Oct. 26, 2009).

Sexual Contact. Evidence that the defendant touched the girls' upper inner thighs while rubbing and moving his hand back and forth and breathing heavily sufficiently establishes contact with intimate parts for a sexual purpose. State v. Harstad, COA No. 61734-6-I (Aug. 24, 2009, ordered published Oct. 26, 2009).

Subdividing Property. A property owner’s creation of two distinct tax parcels, followed by the sale of one of the tax parcels to another person, does not create two lawful lots. Hoggatt v. Flores, COA No. 63861-1-I (Oct. 26, 2009).

Public Records Act. Personal e-mail addresses used by city council members to discuss city business are not exempt from disclosure under former RCW 42.16.310(1)(u). Although the PDA does not require the City to provide the unredacted e-mails in an electronic format, on remand the court should consider whether it is reasonable and technically feasible to do so. Mechling v. City of Monroe, COA No. 62011-8-I (Oct. 26, 2009).

Gant. The search of an automobile of a defendant, who is handcuffed and tasered, some distance from the vehicle cannot be justified as a search incident to arrest. The search cannot be sustained under the community caretaking/inventory exception as the trial court did not rely upon that theory. State v. Gribb, COA No. 27292-3-III (Oct. 27, 2009).

WEEKLY UPDATE FOR OCTOBER 23, 2009

Sexually Violent Predators. Due process does not require the State to plead or prove a recent overt act where the offender has been confined continuously since being incarcerated for a predicate sexual conviction. In re Detention of Fair, No. 80498-2 (Oct. 22, 2009) (Lead opinion by Justice Jim Johnson). Justice Fairhurst authored the concurring opinion. Justice Sanders authored the dissenting opinion.

Sexually Violent Predators. The trial court did not err in allowing the State to inquire of its expert if he had requested an opportunity to reevaluate the respondent, after the respondent first raised the issue of the State’s expert’s failure to examine him after the initial examination in 1996. The trial court did not abuse its discretion by barring testimony regarding the effectiveness of the treatment offered at the special commitment center. In re Pers. Restraint of Duncan, No. 81230-6 (Oct. 22, 2009). Chief Justice Alexander authored a dissenting opinion. Justice Sanders authored a separate dissenting opinion.

Search of Vehicles Incident to Arrest. Under Const. art I, § 7, an automobile search incident to arrest is not justified unless the arrestee is within reaching distance of the passenger compartment at the time of the search, and the search is necessary for officer safety or to secure evidence of the crime of arrest that could be concealed or destroyed. An individual’s attempts to avoid arrest by fleeing instead of yielding to an officer's exercise of authority to arrest, does not undermine the existence of an "arrest." State v. Patton, No. 80518-1 (Oct. 22, 2009). Justice Jim Johnson authored a concurring opinion.

Firearm Enhancement. A trial court does not exceed its authority by imposing a firearm enhancement when the jury returns a special verdict making a deadly weapon finding if the firearm enhancement was properly charged and the fact that a firearm was used is necessarily reflected in the jury's general verdict of guilt. In re Personal Restraint of Rivera, COA No. 61835-1-I (Oct. 19, 2009).

Compromise of Misdemeanors. Adhering to its prior decision, the Court holds that the crime of hit and run of an attended vehicle is subject to compromise. State v. Stalker, COA No. 62549-7-I (Oct. 19, 2009).

Booking Questions. A defendant’s answers to routine booking questions, that were reasonably likely to produce an incriminating response in light of the charge, should have been suppressed as the defendant asserted her right to remain silent to the arresting officer. State v. Denney, COA No. 37529-0-II (Oct. 20, 2009).

WEEKLY UPDATE FOR OCTOBER 16, 2009

Public Records Act. The Public Records Act does not apply to the judiciary as the judiciary is not included in the PRA’s definition of "agency." This exemption applies to both court case files

accessible through the common law, and all other documents. City of Federal Way v. Koenig, No. 82288-3 (Oct. 15, 2009). Judge Pro Tem Korsmo authored a concurring opinion. Justice Stephens authored the dissent.

Building Code Enforcement. Tacoma's notice of violation and penalties were not land use final determinations subject to the procedural requirements of LUPA. Tacoma’s enforcement regimen that authorizes an appeal from an initial notice of violation and first monetary penalty, but not from subsequent notices of violation and monetary penalties, violates due process. Post v. City of Tacoma, No. 80684-5 (Oct. 15, 2009). Chief Justice Alexander authored a concurring opinion. Justice Sanders authored a separate concurring opinion. Justice Madsen authored a dissenting opinion.

Reckless Driving. A police officer lacked the authority under RCW 10.93.070(2) to arrest a motorcyclist for reckless driving outside the officer's jurisdiction. Not every instance of reckless driving will constitute "an emergency involving an immediate threat to human life or property." State v. King, No. 80948-8 (Oct. 15, 2009). Justice Chambers authored a concurring opinion. Justice Fairhurst authored a separate concurring opinion. Chief Justice Alexander dissented. [Note: The State did not offer evidence in this case to establish the existence of a valid interlocal agreement under the Washington Mutual Aid Peace Officers Powers Act. See RCW 10.93.070(1).]

Opinion Testimony. The admission of witness opinion testimony on an ultimate fact, without objection, may be subject to review under RAP 2.5(a)(3). State v. King, No. 80948-8 (Oct. 15, 2009). Justice Chambers authored a concurring opinion. Justice Fairhurst authored a separate concurring opinion. Chief Justice Alexander dissented.

Land Use. A LUPA review cannot be conducted of a Board of County Commissioners (BOCC) remand of an administrative challenge to a construction site plan to its hearing examiner for further proceedings, as that decision does is not a final decision that conclusively determines the rights of the parties by settling the challenging party’s entitlement to relief. Harlan Claire Stientjes Family Trust v. Via-Fourre, COA No. 63865-3-I (Oct. 12, 2009).

Recantation. A defendant, who entered an Alford plea in 1985 to a variety of sex offenses involving his son, daughter, and step-son, is entitled to withdraw his guilty pleas as to all three victims, as his now-adult children claim that the defendant never abused them and they did not witness him abuse anyone else, the State withheld the medical examinations of the defendant’s children, and the mother of one of the alleged victims was having an affair with the investigation's supervising detective. In re Personal Restraint of Spencer, COA No. 37229-1-II (Oct. 13, 2009).

Public Records Act. An organization that received over 615 documents in response to its public records act request, did not establish a violation of the public records act due to the Pierce County Auditor’s failure to retain informational e-mails sent by the Washington Secretary of State's Office because such e-mails did not fall within the retention schedules set for local governments. Building Industry Association of Washington v. McCarthy, COA No. 38154-7-II (Oct. 13, 2009).

Land Use. An appeal from the superior court’s reversal of a Board’s decision to deny a joint-use pier as inconsistent with the County Code Shoreline Master Program and the Washington State Shoreline Management Act was rejected as the Board's factual determinations were unsupported by substantial evidence and its legal conclusions were clearly erroneous in light of the entire record and the applicable shoreline policies. Robertson v. Shoreline Hearings Board, COA No. 37911-2-II (Oct. 13, 2009).

Declination of Juvenile Court Jurisdiction. The juvenile court can decline jurisdiction over a individual who is younger than 15. A juvenile can waive juvenile court jurisdiction. State v. Ramos, COA No. 25740-1-III (Oct. 13, 2009).

Unit of Prosecution. The unit of prosecution for felony murder is one count per victim, rather than one count per underlying felony. State v. Ramos, COA No. 25740-1-III (Oct. 13, 2009).

Escape. A person commits escape in the second degree when, after he is arrested, is transported to a booking area, and is handcuffed to a chair bolted to the floor, the defendant slips out of the handcuffs and leaves the building. State v. Gomez, COA No. 26801-2-III (Oct. 15, 2009).

Expert Opinion. In a prosecution for animal fighting and operating an unlicensed private kennel, the opinion of the expert from the Humane Society that the evidence showed that the defendants intended to engage in dogfighting exhibitions was proper. State v. Nelson, COA No.27000-9 -III (Oct. 15, 2009).

WEEKLY UPDATE FOR OCTOBER 9, 2009

Speedy Trial. An 8-month delay between arraignment and trial that did not violate the time-for-trial court rule, CrR 3.2, did not violate the defendant’s Sixth Amendment or Const. art. I, § 22 constitutional right to a speedy trial. The analysis under both article I, section 22 and the Sixth Amendment is the same and article I, section 22 does not afford a defendant greater speedy trial rights. State v. Iniguez, No. 81750-2 (Oct. 8, 2009). Justice Chambers authored the dissenting opinion.

Open Courtrooms. The trial court’s closure of part of jury voir dire, in consultation with the defendant and the prosecution, in order to safeguard the defendant’s article I, section 22 right to a trial by an impartial jury, did not violate the defendant’s article I, section 22 right to a public trial. State v. Momah, No. 81096-6 (Oct. 8, 2009). Concurring opinion authored by Justice Pro Tem Penoyar. Dissenting opinion authored by Chief Justice Alexander.

Open Courtrooms. Questioning prospective jurors in chambers regarding sensitive matters violated the defendant’s article I, section 22 right to a public trial as the Bone-Club procedure was not followed. A reading of the lead, concurring, and dissenting opinions appear to support the proposition that protecting juror privacy will not justify a complete closure of the courtroom. State v. Stroud, No. 80849-0 (Oct. 8, 2009) (lead opinion authored by Chief Justice Alexander and joined in by Justices Owens, Sanders and Chambers). Concurring opinion authored by Justice Fairhurst and joined in by Justice Madsen. Dissenting opinion authored by Justice Charles Johnson and joined in by Justices Jim Johnson and Pro Tem Penoyar.

Risk Assessment. An inmate does not have a liberty interest in earning good time credits at a 50 percent rate. An inmate who is reclassified to a level that renders him ineligible to receive the 50 percent rate may appeal that decision to the superintendent. The appeal need only determine that DOC followed its procedures to reclassify the inmate. In re Personal Restraint of Pullman, No. 80834-1 (Oct. 8, 2009) (overruling In re Personal Restraint of Adams, 132 Wn. App. 640, 134 P.3d 1176 (2006)). Justice Sanders authored a concurring opinion.

Sexually Violent Predators. The sexually violent predator (SVP) statute, chapter 71.09 RCW, allows the State to perform "[a] current mental health evaluation" of a prisoner prior to the commencement of SVP commitment proceedings. A prisoner does not have a right to counsel at the pre-filing evaluation. A prisoner is not entitled to a voluntariness hearing to determine if the statements that he gave prior to and during the SVP proceeding are admissible. In re Detention of Strand, No. 80570-9 (Oct. 8, 2009). Justice Sanders authored the dissent.

Land Use. Development rights vest upon the filing of a a complete building permit application, not upon the filing of a site plan review permit application (site plan application). Abbey Road Group v. City of Bonney Lake, No. 80878-3 (Oct. 8, 2009) (lead opinion authored by Justice Charles Johnson, and concurred in by Justices Owens and Stephens). Concurring opinion authored by Justice Madsen. Dissenting opinion authored by Justice Sanders.

Violation of a No Contact Order. A charging document, whether a citation or complaint, that charges a defendant with violating a no contact order must identify the order alleged to have been violated, with the date or court of issuance, the name of the protected person, the cause number, or other facts identifying the specific order allegedly violated. Kaiser v. City of Bothell, COA No. 60651-4-I (Jul. 20, 2009, released for publication Oct. 5, 2009).

Time for Trial. The court rule time for trial may not be extended due to the unavailability of a judge, due to the judge’s vacation, without first exploring the availability of visiting judges or pro tempores to hear the criminal case in an unoccupied courtroom . State v. Kenyon, No. 81374-4 (Oct. 1, 2009). Justice Chambers authored a concurring opinion.

Jury Instructions. Jury instructional errors that constitute manifest error include: directing a verdict; shifting the burden of proof to the defendant; failing to define the "beyond a reasonable doubt" standard; failing to require a unanimous verdict; and omitting an element of the crime charged. Instructional errors not falling within the scope of RAP 2.5(a), that is--not constituting manifest constitutional error--include the failure to instruct on a lesser included offense; and the failure to define individual terms. Jury instruction misstating the law of self-defense do not automatically amount to an error of constitutional magnitude and are no longer presumed prejudicial. State v. O'Hara, No. 81062-1 (Oct. 1, 2009). Justice Sanders dissented.

Sexually Violent Predators. The detainee’s trial counsel had a tactical reason for stipulating to certain evidence. The detainee did not have to personally ratify the entry of the stipulation. The State is not required to prove that the detainee would within the foreseeable future to establish he is currently dangerous. In Re Detention of Moore, No. 81201-2 (Oct. 1, 2009). Justice Sanders dissented.

On Tuesday, September 29th, the Washington Supreme Court accepted review of the following cases:

Vehicular Homicide. Vehicular homicide by disregard for the safety of others, RCW 46.61.520(1)(c), is classified by the legislature as a nonviolent offense under former RCW 9.94A.030 (2006), allowing for the imposition of a first time offender sentence. State v. Stately, COA No. 38103-6-II (Sep. 29, 2009).

Exceptional Sentences. If the jury instructions on an aggravating circumstance informs the jury to answer the question "no" if they are not unanimous, the court may not direct the jury to deliberate further if it is clear that the jury "hung" on that aggravating circumstance. State v. Coleman, COA No. 36757-2-II (Sep. 29, 2009).

Shifting Burden. A prosecutor’s rebuttal argument that the defendant failed to provide any witness from his brother’s house to corroborate the defendant’s testimony that he only had two beers and a "sip" of whiskey prior to getting behind the wheel of a car, prejudiced the defendant beyond a reasonable doubt because the jury could likely infer that the defendant had the burden to prove that he was not intoxicated. State v. Toth, COA No. 38223-7-II (Sep. 29, 2009).

Finality of Convictions. A defendant’s convictions were final, for purposes of retroactively applying Blakely, when the time for filing a petition for writ of certiorari expired prior to the issuance of Blakely and the State elected not to retry the defendant on the two reversed counts. The trial court, therefore, properly refused to resentence the defendant to a standard range term on the three convictions that were affirmed by the court of appeals, and to merely enter an order correcting the judgement and sentence to reflect the reversed counts. If, however, the trial court exercised its discretion to revisit the sentence, the defendant would have an appealable issue. State v. Kilgore, No. 81020-6 (Sep. 24, 2009). Justice Sanders authored the dissenting opinion.

Division One

Identification Procedures. The identification of a suspect by an acquaintance does not raise the due process concerns that arise when an eyewitness identification is tainted by suggestive procedures. A lay-opinion identifying a person in a photograph is proper when the witness has interacted with the defendant in a variety of circumstances, in a way the jury could not in a sterile courtroom setting. State v. Collins, COA No. 61646-3-I (Sep. 21, 2009).

Legal Financial Obligations. A decision to deny a defendant’s motion under RCW 10.01.160(4) to terminate legal financial obligations (LFOs) that were imposed as part of the judgment and sentence is not appealable as a matter of right. In addition, a defendant may not obtain review of such an order because he is not an aggrieved party under RAP 3.1. State v. Smits, COA No. 62243-9-I (Sep. 21, 2009).

Sexually Violent Predators. Under the plain and unambiguous language of RCW 71.09.020(17), a conviction of incest in the first degree and proof beyond a reasonable doubt that the child was "under age fourteen," meets the definition of a sexually violent offense that qualifies as a predicate offense in a sexually violent predator civil commitment proceeding. In re Detention of Boynton, COA No. 61891-1-I (Sep. 21, 2009).

Banishment Orders. A banishment order that bars the defendant from entering a county in order to protect the mental well being of the child victim and her family does not survive under the applicable strict scrutiny test. A remand to allow the judge to tailor a narrower restriction is the appropriate remedy. Because the banishment order in this case was inexplicably linked with the imposition of a SSOSA, the trial court, on remand, is entitled to reconsider its decision to impose a SSOSA. State v. Sims, COA No. 37773-0-II (Sep. 22, 2009).

Gant. A defendant may assert a claim predicated upon Arizona v. Gant for the first time in the Court of Appeals. No motion to suppress need be filed in the trial court. The good faith exception to the exclusionary rule is not available for a search conducted prior to the Supreme Court’s decision in Gant. State v. McCormick, COA No. 37651-2-II (Sep. 23, 2009). The panel disapproves of the decision in State v. Millan, ____ Wn. App. ____, 212 P.3d 603, 607 (2009), stating that the decision is contrary to existing law.

Melindaz-Diaz and DUI Machine Records. Intoxilyzer certificates of accuracy may still be admitted into evidence post-Melindaz-Diaz without violating a defendant’s Sixth Amendment confrontation rights. State v. Bergin, No. A136490 (Sep. 23, 2009).

Ninth Circuit

Banishment Orders. A order prohibiting a convicted gang member from entering the city and County of San Francisco without the prior approval of his probation officer was constitutional as the defendant had multiple convictions within San Francisco and separating a convicted felon from negative influences in his prior life is reasonably related to the permissible goals of deterrence and rehabilitation and is a common purpose of supervised release. United States v. Watson, No. 08-10385 (9th Cir. Sep. 23, 2009).

Tribal Police Officers. Tribal police officers have inherent sovereign authority and statutory authority to continue "fresh pursuit" of motorists who break traffic laws on the reservation and then drive off the reservation. State v. Eriksen, No. 80653-5 (Sep. 17, 2009).

Offender Score. A defendant, who only contended that one of his California convictions "washed out", is deemed to have affirmatively acknowledged that the out-of-state convictions are properly included in his offender score. State v. Lucero, COA No. 57684-4-I (Sept. 14, 2009).

Time for Trial. Where each of numerous continuances satisfied various CrR 3.3 criteria, the defendant’s trial, which began 323 days after his arraignment was timely. The defendant’s constitutional right to a speedy trial was not violated as much of the delay was due to a witness’s illness and to the defendant’s request for a new counsel and that counsel’s schedule. State v. Lackey, COA No. 37682-2-II (Sept. 15, 2009).

Medical Marijuana. Former RCW 69.51A.040(1), the primary caregiver defense, may not be expanded to provide a defense to anyone other than the person named in the documentation. An individual who resides with a properly designated primary caregiver may assert a mere "presence or vicinity" defense predicated on RCW 69.51A.050(2). State v. McCarty, COA No. 37693-8-II (Sept. 15, 2009).

Specific Performance. A defendant, who requested specific performance of a plea agreement that erroneously omitted the mandatory community custody, was only entitled to have the State recommend the illegal sentence. The trial court is not bound by that recommendation, and may impose a lawful sentence that includes the mandatory period of community custody. State v. Barber, COA No. 37989-9-II (July 21, 2009, publication ordered Sept. 15, 2009).

Maximum Sentence Terms. A statement in a judgement and sentence that "[t]he total time imposed for both incarceration and community custody shall not exceed 120 months" is sufficient to comply with RCW 9.94A.505(5). State v. Booth, COA No. 37790-0-II (Sept. 15, 2009).

Medical Marijuana. Chapter 69.51A RCW provides qualifying medical users only a defense to criminal prosecution. Chapter 69.51A RCW neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the act. Roe v. Teletech Customer Management, COA No. 38531-7-II (Sept. 15, 2009).

Abuse of Process. An action for abuse of process may be based upon motions filed after a civil action has been properly commenced. Hough v. Stockbridge, COA No. 37382-3-II (Sept. 15, 2009).

Sex Offender Registration. The trial court did not err by relieving a sex offender of his obligation to register, as the sex offender successfully completed a SSOSA sentence, had spent 10 years in the community without violating any laws and an expert placed the offender’s risk of reoffending as "unlikely." State v. McMillan, COA No. 27475-6-III (Sept. 17, 2009).

WEEKLY UPDATE FOR SEPTEMBER 11, 2009

DUI. Police may obtain a search warrant for a blood sample when a motorist refuses to give consent to a breath test. City of Seattle v. St. John, No. 81992-1 (Sept. 10, 2009). Justice Sanders authored the dissenting opinion

Competency. The trial court did not violate the defendant’s due process rights by abandoning the procedures outlined in RCW 10.77.060 for determining competency, after the defendant’s attorney withdrew his competency challenge and stipulated to the defendant’s competency. State v. Heddrick, No. 80841-4 (Sept. 10, 2009).

On September 8, 2009, the Washington Supreme Court granted review of the following cases:

Terry Stops. State v. Doughty, No. 82852-1. Spokane County. COA opinion reported at 148 Wn. App. 585 (2009). Stop of a suspect after the suspect visited a known drug house at 3:20 a.m. for a two-minute-long visit.

Knapstad. State v. Montano, No. 82855-5. Grant County. COA opinion is reported at 147 Wn. App. 543 (2008). Whether threats directed toward a transporting officer could be interpreted by a rational trier of fact as designed to influence the officer’s course of action.

Wash Out. State v. Moeurn, No. 82995-1. Grays Harbor County. COA opinion is unpublished. What is the wash-out period for an attempted felony?

Child Abuse Case. State v. Webb, No. 83177-7. Island County. COA opinion reported at 149 Wn. App. 912 (2009). Competency of child witnesses, Miranda issues.

Sexually Violent Predators. In re Det. of Hawkins, No. 82907-1. COA opinion is unpublished. Challenge to a sexual history polygraph as part of a pretrial psychological evaluation.

Forfeiture Case. Guillen v. Contreras, No. 82531-9. COA opinion reported at 174 Wn. App. 326 (2008). When is a claimant a "substantially prevailing party" for purposes of attorney’s fees in a forfeiture case.

Gambling. Rousso v. State, No. 83040-1. COA opinion reported at 149 Wn. App. 344 (2009). Commerce Clause challenge to Gambling Act.

Gambling. Internet Cmty. & Entm’t Corp. v. State, No. 82845-8. COA opinion reported at 148 Wn. App. 795 (2009). On line gaming.

School Funding. Sch. Dists.’ Alliance for Adequate Funding of Spec. Educ. v. State, No. 82961-6. COA opinion reported at 149 Wn. App. 241 (2009). Special education funding.

Prejudgment Interest. Forbes v. Am. Bldg. Maint. Co. W., No. 82950-1. COA opinion reported at 148 Wn. App. 273 (2009). Petition granted only on prejudgment interest and modification of settlement amount issues.

Partnerships. Washington Trust Bank v. River Gorge, No. 82827-0. COA opinion is unreported. Partnership liability for hay bill.

Expert Witnesses. Smith v. Orthopedics Int’l, Ltd., P.S., No. 83038-0. COA opinion reported at 149 Wn. App. 337 (2009). Ex parte contact with other side’s expert witnesses.

Division One

Prior Recorded Recollection. A testifying witnesses’ statement to police, immediately after the crime occurred, that the police officer reduced to writing, and that the testifying witness signed under penalty of perjury, is admissible pursuant to ER 803(a)(5), even though the witness testified at trial that she could not remember if the statement accurately reflected what she told the police, because she was too intoxicated.. State v. White, COA No. 61848-2-I (Sept. 8, 2009).

Closed Courtrooms. No public trial right was abridged by the trial court conducting a traditional in camera proceeding on a witnesses’ Fifth Amendment claim. Such a hearing may be conducted without an on-the-record analysis of the Ishikawa/Bone-Club factors. State v. White, COA No. 61848-2-I (Sept. 8, 2009).

Warrantless Administrative Inspections. A warrantless administrative search of a business in relations to a complaint of unprofessional misconduct against a licensed health care professional may not be conducted until after the disciplining authority first determines that the complaint has merit. See RCW 18.130.080(2). Seymour v. Dept. of Health, COA No. 61494-1-I (Sept. 8, 2009).

Demonstrative Evidence. The trial court abused its discretion by admitting a trigger pull device, as the identified differences between the trigger pull device affected the "perceived trigger pull", rendering it insufficiently similar to the "facts to be proved" at trial. State v. Hunter, COA No. 37110-3-II (July 14, 2009, publication ordered Sept. 9, 2009).

Lesser Included Offense Instructions. A defendant in a second degree murder trial satisfied the factual basis for both first and second degree manslaughter as the defendant admitted shooting the victim, but claimed that the shooting was an accident. State v. Hunter, COA No. 37110-3-II (July 14, 2009, publication ordered Sept. 9, 2009).

Destruction of Court Records. GR 15(h) and RCW 10.97.060 do not authorize the destruction of a court record from a case that was dismissed without prejudice when the State could not locate a material witness as the court records do not constitute "criminal history record information." RCW 10.97.030(1). State v. Young, COA No. 37985-6-II (Sept. 9, 2009).

Growth Management. While the language of RCW 36.70A.480 certainly contemplates that plans under both the Shoreline Management Act and the Growth Management Act will regulate critical areas in shoreland regions in some situations and, thus, suggests that both types of plans can exist at the same time, the Washington Supreme Court’s result in Futurewise directs that only the Shoreline Management Act plan can be in effect at one time. Kapo v. Central Puget Sound Growth Management Hearings Board, COA No. 38017-0-II (Sept. 9, 2009).

WEEKLY UPDATE FOR SEPTEMBER 4, 2009

District Court Judges. Former RCW 3.46.070 did not apply to district court judges sitting as part time municipal judges in municipal departments and that therefore, the Spokane County District Court judges had de jure jurisdiction over municipal court criminal trials. City of Spokane v. Rothwell, No. 81271-3 (Sep. 3, 2009)

Forfeiture. A claimant seeking an "innocent owner" exception to vehicle forfeiture is not required to prove that she could not have known of the illegal use giving rise to forfeiture. The term "knowledge" under the meaning of RCW 69.50.505(1)(d)(ii) is satisfied only by proof of actual knowledge. In Re Matter Forfeiture of One 1970 Chev. Chevelle/In Re Matter Forfeiture of One 2004 Nissan Sentra, No. 81116-4 (Sep. 3, 2009). Justice Madsen authored a concurring/dissenting opinion.

Accomplice Liability A person can be charged as an accomplice to a crime when the principle actors in the crime are children, and thus legally incapable of committing a crime. State v. Bobenhouse, No. 81413-9 (Sep. 3, 2009). [Note– this case also contains a good "harmless error" analysis for multiple act cases in which a Petrich instruction is not given.]

Ineffective Assistance of Counsel/Self Defense. Trial counsel was ineffective because counsel misstated the law on self-defense in an instruction counsel proposed that was given to the jury and in statements made during closing argument about the defendant’s self-defense claim. This case is distinguishable from Studd, because at the time of the defendant’s trial, there were several cases that should have indicated to counsel that the pattern instruction was flawed. State v. Kyllo, No. 81164-4 (Sep. 3, 2009).

Redaction of Court Records. General Rule (GR) 15 and the factors set forth in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), must be considered by the court even when ruling on an uncontested motion to redact a litigant’s full name from a dismissed unlawful detainer action. Rousey v. Indigo Real Estate Services, COA No. 61831-8-I (Aug. 31, 2009).

Electronic Home Monitoring. A misdemeanant, who is detained before trial on electronic

home monitoring, is not entitled to be credited for time served. Harris v. Charles, COA No. 61629-3-I (Aug. 31, 2009).

Post-Conviction DNA Testing. A convicted rapist satisfied the procedural requirements for post-conviction DNA testing of swabs collected from a rape victim . DNA testing that was available at the time of the crime could not be done when semen was not detected. Modern STR DNA testing can detect DNA in significantly smaller samples. State v. Grey, COA No. 61709-5-I (Jul 6, 2009, publication ordered Aug. 31, 2009).

Unanimity Instructions. An unanimity instruction was required in a case in which the State did not identify a specific act for one count and the evidence at trial included multiple acts that could have provided the basis for a guilty verdict on that count. The error was not harmless. State v. York, COA No. 38185-1-II (Sep. 1, 2009).

Rape. A trial court errs by instructing the jury, at the State’s request, on the inferior degree offense of third degree rape in a second degree rape by forcible compulsion case, when the defendant contends that the intercourse was consensual and the victim testifies that the intercourse was forced. State v. Wright, COA No. 36721-1-II (Sep. 1, 2009). Judge Hunt filed a dissenting opinion.

Claims Filing Statute. Former RCW 4.96.020(3) (2006) did not require a claimant to personally verify her administrative claim before filing her lawsuit against a government body. Gates v. Port of Kalama, COA No. 37758-6-II (Sep. 1, 2009). This opinion repudiates the prior Division Two opinion in Schoonover v. State, 116 Wn. App. 171, 64 P.3d 677 (2003), and creates a split with Division One’s opinions in Johnson v. King County, 148 Wn. App. 220, 198 P.3d 546 (2009), and Delos Reyes v. City of Renton, 121 Wn. App. 498, 86 P.3d 155 (2004).

Certificate of Discharge. A defendant, who had been housed at the Special Commitment Center as a sexually violent predator, was not entitled to a certificate of discharge under RCW 9.94A.637(1), as he has not yet completed his community placement period. The start of the community placement period was tolled during his confinement as an SVP. State v. Donaghe, COA No. 37008-5-II (Sep. 3, 2009). Judge Armstrong dissented. [Note– this opinion represents a split with Division Three’s opinion in In re Pers. Restraint of Knippling, 144 Wn. App. 639, 183 P.3d 365 (2008)].

Privilege Against Self-Incrimination. A State’s witnesses’ statement that the defendant was evasive during police questioning, prejudicially violated the defendant’s Fifth Amendment and Const. art. I, § 9, privilege against self-incrimination. State v. Hager, COA No. 37539-7-II (Sep. 3, 2009). Judge Hunt dissented, stating that "The officer's one-time mention of the term "evasive," taken in context, was not a comment on Hager's exercise of his right to remain silent, was not a comment on Hager's guilt, and did not incurably prejudice the jury."

Opinion Withdrawn – Division Two withdraws its opinion in In re Personal Restraint of Wiatt, COA No. 35690-2-II (Sep. 1, 2009). The prior opinion was described as follows:

Prosecutorial Immunity. When a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity. Al-Kidd v. Ashcroft, No. 06-36059 (9th Cir. Sep. 4, 2009).

WEEKLY UPDATE FOR AUGUST 28, 2009

Firearm Enhancement. A doubling of the firearm enhancement pursuant to RCW 9.94A.533(3)(d) does not require a jury finding as to the existence of the prior felony conviction with firearm enhancement. A conviction for unlawful possession of a firearm in the first degree, based on his prior conviction for assault in the second degree with a firearm enhancement, and doubling the term for the firearm enhancements under RCW 9.94A.533(3)(d), based on the same prior assault conviction does not violate double jeopardy. State v. Simms, COA No. 60365-5-I (Aug. 24, 2009).

Search Warrants. Evidence supporting the issuance of a search warrant for a computer was not stale, even though the detective did not seek the search warrant until five months after a known video of child pornography publicly available for download from the IP address assigned to the defendant. The presence of 21 other files available for download that had titles strongly suggestive of child pornography supported an inference that the defendant was a "collector" and the detective’s training and experience allowed him to state that collectors of child pornography often retain the contraband. Most importantly, the detective was able to declare that evidence of the defendant’s contraband, in the form of metadata, would likely be found on his computer hardware, even if the

contraband itself could no longer be viewed on his computer. State v. Garbaccio, COA No. 62161-1-II (Aug. 24, 2009).

Child Pornography. A defendant’s claim that he accidently downloaded child pornography and that as soon as he realized that the file contained child pornography, goes to the possession element of the crime– not the knowledge requirement. State v. Garbaccio, COA No. 62161-1-II (Aug. 24, 2009).

Domestic Violence Protection Orders. A permanent protection order is not invalid when it does not contain language showing a specific finding made by the issuing court satisfying the

statutory requirement that for orders exceeding one year the court must affirmatively find that the respondent is "likely to resume acts of domestic violence" against his former spouse and child. Nothing in the statute requires such a finding appear on the order itself. City of Seattle v. May, COA No. 61027-9-I (Aug. 24, 2009).

Commercial Storage Facilities. The state and federal constitutions afford no privacy protection to the common area of a gated commercial storage facility. State v. S.L., COA No. 62157-2-I (Aug. 24, 2009).

Forfeiture. The beneficiaries of an estate cannot assert an "innocent owner defense" to the forfeiture of a parcel of real property that was seized prior to the owner’s death based on the owner’s use of it for commercial marijuana production. Pearson v. Snohomish County Regional Drugs Task Force, COA No. 62933-6-I (Aug. 24, 2009).

Growth Management Act. Because the Whatcom County Comprehensive Plan establishes the standards for service and finds that the fire district has the capacity to meet that standard, the fire district is foreclosed from evaluating concurrency with new development on a project-by-project basis and requiring a concurrency mitigation fee. Birch Point Village, LLC v. Whatcom County Fire Distric No. 21, COA No. 61431-2-I (June 22, 2009, released for publication Aug. 24, 2009).

Unit of Prosecution. The unit of prosecution for witness tampering is an instance of attempting to induce a witness or person to do any of the actions set forth in RCW 9A.72.120. Eight counts of witness tampering stemming from 36 phone calls to the witness over a four day period , did not violate double jeopardy. State v. Thomas, COA No. 37112-0-II (Aug. 25, 2009). Judge Van Deren dissented, holding that the unit of prosecution is each witness, regardless of the number of inducements.

Child Sex Abuse.

State v. Kennealy, COA No. 37665-2-II (Aug. 25, 2009).

Good Faith and Gant. Application of the good faith exception to exclusion to a properly preserved and/or raised Gant claim is improper under the United Supreme Court’s cases on retroactivity of new decisions. United States v. Gonzalez, No. 07-30098 (9th Cir. Aug. 24, 2009).

Execution of Search Warrants for Electronic Data. In a sweeping en banc decision, the Ninth Circuit set forth the procedure and rules governing the execution of federal search warrants for electronic data. The specified procedure includes the following:

United States v. Comprehensive Drug Testing, Inc., No. 05-10067 (9th Cir. Aug. 26, 2009).

WEEKLY UPDATE FOR AUGUST 14, 2009

Division Two

Jury Coercion. A judge’s statement, upon noting that one verdict form was blank, that "I'm sending the jury back to the jury room. Verdict form No. 1 is completely blank. It must be filled in.", violated CrR 6.15(f)(2). The defendant, therefore, is entitled to a new trial on that count. State v. Ford, COA No. 37089-1-II (Aug. 11, 2009).

Medical Marijuana. The trial court erred by barring the defendant from presenting a "primary caregiver" affirmative defense to a manufacture of marijuana charge, because there is nothing in Chapter 69.51A RCW that requires the "valid documentation" to contain the exact language of the statute. State v. Otis, COA No. 37705-5-II (Aug. 11, 2009). [This opinion appears to be inconsistent with Division Three’s opinion in State v. Shepherd, 110 Wn. App. 544, 41 P.3d 1235, review denied, 147 Wn.2d 1017 (2002)].

Tax Assessments. For tax purposes, power generating equipment is personal property, not real property. Grays Harbor Energy, LLC, v. Grays Harbor County, COA No. 37163-4-II (Aug. 11, 2009).

Gang Testimony. While gang affiliation may establish the motive for a crime or to show that defendants acted in concert, the admissibility of gang affiliation evidence depends upon the establishment of a connection between the gang's purposes or values and the offense committed. State v. Scott, COA No. 26790-3-III (Aug. 11, 2009).

Comparability. The rule that a defendant’s affirmative acknowledgment at sentencing that an out-of-state conviction is comparable to a Washington offense is binding upon that defendant in Persistent Offender Accountability Act (three strike) cases. State v. Birch, COA No. 26635-4-III (Aug. 11, 2009).

SSOSA. A defendant is not barred from receiving a SSOSA sentence solely because he is subject to a deportation hold. State v. Adamy, COA No. 27206-1-III (Aug. 13, 2009).

Ineffective Assistance of Counsel. Counsel’s failure to consult an expert blood spatter expert prior to trial, based upon counsel’s belief that the case was a "credibility contest", constituted prejudicial deficient performance. Richter v. Hickman, No. (9th Cir. Aug. 10, 2009).

Probable Cause and Child Sex Abuse. A 4-year-old’s statements that described sexual abuse the child purportedly experienced at the age of 3 does not, on its own, support a finding of probable cause if the information is not reasonably trustworthy or reliable. Before an officer can make an arrest upon such a statement, the officer must conduct further investigation and obtain corroboration of the statements. Stoot v. City of Everett, No. 07-35425 (9th Cir. Aug. 13, 2009).

Fifth Amendment and 42 U.S.C. § 1983 Liability. A statement obtained in violation of the Fifth Amendment must be "used" in a "criminal case" in order to give rise to liability under 42 U.S.C. § 1983. "Use" includes relying on the statements in an affidavit of probable cause that is filed in support of the information charging the defendant with a crime, and the consideration of the statements at a pre-trial arraignment and CrR 3.2 bail hearing. Stoot v. City of Everett, No. 07-35425 (9th Cir. Aug. 13, 2009).

WEEKLY UPDATE FOR AUGUST 7, 2009

SSOSA Revocations. The State does not need to prove that a defendant willfully violated the conditions of his SSOSA sentence in order to revoke the SSOSA. The only conditions that requires proof of willfulness is failure to pay legal financial conditions and community service obligations. State v. McCormick, No. 81193-8 (Aug. 6, 2009). Justice Sanders authored the dissenting opinion.

DWLS 1. In determining the mandatory minimum sentence for repeat DWLS 1 offenses, there is no temporal limitation upon which convictions count as "priors." The rule of lenity, however, provides a basis for allowing a trial court to convert all or part of the minimum term of imprisonment to electronic home monitoring. State v. Anderson, COA No. 61258-1-I (Aug. 3, 2009).

Stalking. Proof of two incidents of harassment is sufficient to support a conviction for stalking. The stalking statute, moreover, is not unconstitutionally vague. Double jeopardy is not violated by convicting and sentencing someone for violating both the stalking statute and the harassment statute. State v. Haines, COA No. 61858-0-I (Aug. 3, 2009).

Third Degree Assault. A floor can be an "instrument or thing likely to produce bodily harm." State v. Marhol, COA No. 37566-4-II (Aug. 4, 2009).

Gant Challenges. A defendant who did not move to suppress evidence based upon Gant in the trial court, may not assert a Gant challenge for the first time on appeal. State v. Milan, COA No. 37172-3-II (Aug. 7, 2009).

Tribal Roadblocks. A roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians. Bressi v. Ford, No. (9th Cir. Aug. 4, 2009).

Prison Litigation Reform Act. A person, who is no longer incarcerated, need not exhaust administrative remedies pursuant to the PLRA as a prerequisite to filing an action in the district court relating to the conditions of his incarceration. Talamantes v. Leyva, No. 06-55939 (9th Cir. Aug. 6, 2009).

WEEKLY UPDATE FOR JULY 31, 2009

Division One

Custodial Sexual Misconduct. "Being detained" for purposes of the custodial sexual misconduct law means "restraint on freedom of movement to such a degree that a reasonable person would not have felt free to leave." State v. Torres, COA No. 61616-1-I (Jul. 27, 2009).

WEEKLY UPDATE FOR JULY 24, 2009

Community Custody. When a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the appropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the

combination of confinement and community custody shall not exceed the statutory maximum. In Re PRP of Brooks, No. 80704-3 (Jul. 23, 2009). [Editor’s Note: This case essentially overrules State v. Linerud, 147 Wn. App. 944, 197 P.3d 1224 (2008), which held that such language constituted an illegal indeterminate sentence.]

Double Jeopardy. Double jeopardy is violated when a defendant is convicted for both rape of a child in the second degree and rape in the second degree based on incapacity to consent arising from one act of sexual intercourse with a child. State v. Hughes, No. 81270-5 (Jul. 23, 2009).

Exceptional Sentences. Exceptional minimum term sentences under RCW 9.94A.712 after the effective date of the "Blakely fix" still do not require a jury finding of aggravating circumstances. State v. Hughes, No. 81270-5 (Jul. 23, 2009).

Personal Restraint Petitions. A trial counsel’s failure to move to suppress evidence under a theory that was adopted by case law after the defendant’s trial was concluded, will not support relief in a PRP. In re Personal Restraint of Nichols, COA No. 59750-7-I (Jul. 20, 2009).

Ineffective Assistance of Counsel. In a PRP, a petitioner claiming ineffective assistance of appellate counsel for failing to raise a constitutional error or fundamental defect at trial must show that he was actually and substantially prejudiced by the error and that the legal issue had merit. As to claims of ineffective assistance of trial counsel, a petitioner must also demonstrate that he was actually and substantially prejudiced by the error. In re Personal Restraint of Davis, COA No. 35706-2-II (Jul. 21, 2009).

Failure to Register as a Sex Offender. California convictions for lewd acts on a child

are not comparable to Washington sex offenses, and thus, will not support a prosecution for failing to register as a sex offender. A California conviction for failing to register as a sex offender in California that was based upon an underlying sex offense that is not comparable to a Washington sex offense will also not support a prosecution for failing to register as a sex offender. State v. Howe, COA No. 37361-1-II (Jul. 21, 2009).

Confrontation Clause. A defendant’s Confrontation Clause rights are not violated where limitations on the effectiveness of cross-examination resulted from the witness’s own physical impairments. Vasquez v. Kirkland, Cause No. 08-55699 (9th Cir. Jul. 20, 2009).

Computer Searches. A search warrant for an item that is capable of being stored on a computer harddrive does not allow the searchers to access the computer. A searcher may only access a computer when the search warrant expressly authorizes a computer search. Officers seeking records under a warrant that lacks such express authorization may secure the computer at the scene, while they apply for a second search warrant. United States v. Payton, No. 07-10557 (9th Cir. Jul. 21, 2009). [Editor’s note: This opinion conflicts with a prior Ninth Circuit opinion. See United States v. Giberson, 527 F.3d 882 (9th Cir. 2008). Hopefully, the conflict will be addressed by the en banc court.)

Public Employees and First Amendment. A police officer’s conversations with superiors and assistant district attorneys discussing investigations into crimes or corruption within or concerning the police department and his testimony before a grand jury are clearly pursuant to his employment, and does not constitute "protected speech" which will support a First Amendment claim against his employer. Huppert v. City of Pittsburg, No. 06-17362 (9th Cir. Jul. 21, 2009).

Ethnic Generalizations. It is prosecutorial error to elicit testimony from an information and police officer regarding which ethnic groups typically fill which roles in the pseudoephedrine pill trade, and to then argue that this information supports the guilt of the defendants. United States v. Nobari, No. 06-10465 (9th Cir. Jul. 24, 2009).

WEEKLY UPDATE FOR JULY 17, 2009

Land Use Permits. A government entity cannot, under the Washington Constitution, apply a moratorium to refuse to consider a permit request from a religious organization. In the context of homeless tent cities, governments may mediate concerns for safety, noise, and crime but may not outright deny consideration of permitting. City of Woodinville v. Northshore United Church of Christ, No. 80588-1 (Jul. 16, 2009). Justice Sanders authored a concurring opinion.

Public Records Act. The Pierce County Prosecuting Attorney’s Office did not violate the public records act by withholding records contained in a specific file under the CR 26 definition of work product. A letter from the prosecuting attorney’s office that explains that a certain number of pages of police reports and witness interview transcripts are being withheld as work product because they pertained to the charging decision is sufficient to satsify PAWS. The Pierce County Prosecuting Attorney’s Office did not have to coordinate with the Sheriff’s Department to obtain the withheld records for the requester. Koenig v. Pierce County, COA No. 61821-1 - I (Jul. 13, 2009).

Legal Financial Obligations. A defendant was entitled to be relieved of all responsibility for paying his LFOs on a 1992 conviction as the 10-year statutory period for collecting the money under the prior statute expired in 2002. The bench warrant for the defendant’s failure to pay that was issued in 1995 did not toll the collection period and did not extend the trial court’s jurisdiction. Personal Restraint Petition of Spires, COA No. 61883-1 - I (Jul. 13, 2009).

Ineffective Assistance of Counsel. Because the decision to seek an acquittal instead of requesting a jury instruction on a lesser included offense can be characterized as legitimate trial strategy, a defendant cannot overcome the presumption that his counsel was competent solely because counsel did not seek an instruction on a lesser included offense. State v. Hassan, COA No. 61756-7 - I (Jul. 13, 2009).

WEEKLY UPDATE FOR JULY 9, 2009

Burglary. A large, partially fenced yard does not qualify as a "fenced area" under the burglary statute. State v. Engel, No. 81072-9 (Jul. 9, 2009).

DWLS. The post-City of Redmond v. Moore statutes afford adequate due process to a person who seeks to challenge his or her driver’s license suspension for failure to appear, respond, pay, or comply with a notice of traffic citation. City of Bellevue v. Lee, No. 81473-2 (Jul. 9, 2009). Justice Sanders was the lone dissenter.

Sexually Violent Predators. A convicted sex offender’s acts of engaging in sex with vulnerable and developmentally disabled co-patients, while institutionalized at Western State Hospital, satisfies the "recent overt act" requirement of former RCW 71.09.020(10) (2006), recodified as RCW 71.09.020(12). While SVP detainees are not entitled to an unlimited number of experts at state expense, the trial court abused its discretion by not granting this detainee’s request for appointment of a second expert. In Re Detention of Anderson, No. 79111-2 (Jul. 9, 2009). Justice Sanders authored a dissenting opinion regarding the "recent overt act" issue. Justice Fairhurst authored a separate dissenting opinion on the same issue.

On Tuesday, July 7, 2009, the Washington Supreme Court granted review in the following cases:

Cross-Examination of Defendant. Const. art. I, § 22, provides no greater protection to a criminal defendant then does the federal constitution with respect to a prosecutor’s cross-examination of the defendant concerning the defendant’s opportunity to tailor his testimony to evidence previously introduced at trial. State v. Martin, COA No. 61127-5-I (Jul. 6. 2009).

Bail Jumping. Bail jumping is classified for sentencing purposes according to the nature of the underlying charge at the time the defendant jumps bail, not on the basis of the underlying charge's ultimate disposition. State v. Coucil, COA No. 61731-1-I (Jul. 6, 2009).

Money Laundering. Defendant is entitled to a new trial where the "to convict" instruction did not specify the two pieces of property that supported the charges and the jury heard testimony regarding uncharged pieces of property. State v. Jain, COA No. 61412-6-I (Jul. 6, 2009). [Editor’s note– This opinion contains a nice review of the law related to "to convict" instructions.]

Community Custody. A defendant is not entitled to have excess time spent in prison credited toward his community custody term. State v. Jones, COA No. 37002-6-II (Jul. 7, 2009). [Editor’s note: This opinion represents a clear split with Division Three’s opinion in In re Pers. Restraint of Knippling, 144 Wn. App. 639, 183 P.3d 365 (2008).]

Ninth Circuit

Summary Judgment. The "sham affidavit" rule does not apply when the non-moving party resists summary judgment by pointing to deposition testimony given under oath by other percipient witnesses whose testimony differed from that of thenon-moving party’s deposition testimony. Nelson v. City of Davis, No. 07-16905 (9th Cir. Jul. 7, 2009). [Editor’s note: This opinion has a nice summary of the "sham affidavit" doctrine.]

Pro Se. A slight error in stating the maximum sentence will not invalidate a waiver of counsel, where the defendant was advised of the correct maximum sentence prior to trial and the defendant chose to continue to represent himself. No specific language must be used to advise the defendant of the risks and dangers of proceeding pro se. United States v. Gerritsen, No. 06-50552 (9th Cir. Jul. 10, 2009).

WEEKLY UPDATE FOR JULY 2, 2009

Gang Evidence. Admitting gang evidence to establish motive in a prosecution for first degree murder by extreme indifference was proper under ER 404(b). Gang evidence was also probative with respect to the defendant’s intent to commit great bodily injury as charged in the first degree assault count. Gang evidence will generally not satisfy the identity alternative of ER 404(b). The gang expert’s response to hypothetical questions did not invade the province of the jury. Double jeopardy is not violated by the imposition of an exceptional sentence on a first degree murder by extreme indifference conviction based on the aggravating factor that the murder involved a destructive and foreseeable impact on persons other than the victim. State v. Yarbough, COA No. 36457-3-II (Jun. 30, 2009).

Closing Arguments. The following statement that was made at the end of a 5-page closing argument did not constitute a comment on the defendant’s right to remain silent and did not shift the burden of proof: "What I'm asking you to do is to deliberate that there has been no real contradiction on any of these facts and to come back with a verdict of guilty." State v. Morris, COA No. 36923-1-II (Jun. 30, 2009).

Collateral Attacks. A supplemental brief that contains a new issue and that is filed more than one year after the challenged conviction became final is time barred. A transcriptionist’s mistake does not provide a basis for equitably tolling the one-year time bar contained in RCW 10.73.090. Petitioner’s open court room challenge is rejected because he explicitly agreed to the courtroom’s closure and he cannot demonstrate actual prejudice from the closure. A court should look only at whether a prosecutor’s conduct was improper and likely to cause prejudice at the time the prosecutor acted, rather than viewing the conduct through the distorting effects of hindsight. The doctrine of prosecutorial misconduct does not apply to police action. A police officers use of some deception during an investigation does not constitute outrageous government conduct. In re Personal Restraint of Wiatt, COA No. 35690-2-II (Jun. 30, 2009). Judge Van Deren dissented with respect to the open courtroom issue.

Withdrawal of Guilty Plea. A defendant, who failed to disclose his juvenile offense history at the time of his guilty plea, is contractually bound by the plea agreement to accept the increased offender score for juvenile offenses that do not wash out under current law. State v. Robinson, COA No. 27120-0-III (Jul. 2, 2009).

WEEKLY UPDATE FOR JUNE 26, 2009

Crawford. The Sixth Amendment right of confrontation is violated by the admission of a certificate from a state laboratory analyst which states that material seized by the police and connected with the petitioner is a controlled substance. Melendez-Diaz v. Massachusetts, No. 07-591 (June 25, 2009).

School Searches. A search of a school child’s outer clothing and backpack based upon plausible information that the student was violating the school’s drug rules was proper, but the search of the child’s underwear violated the Fourth Amendment. Safford United School Dist. #1 v. Redding, No. 08-479 (June 25, 2009).

Public Records Act. A citizen’s oral request for information at a public meeting is not a sufficiently clear request under the Public Records Act to trigger sanctions for failing to respond to the request within five days. Beal v. City of Seattle, COA No. 62171-8-I (June 22, 2009).

Closing Argument. A prosecutor does not vouch for his witnesses by reminding the jury that it is the sole judge of credibility, by outlining the evidence that would support a jury determination that the State’s witnesses were credible, and that the defendant’s witnesses were not credible. The State does not shift the burden of proof to the defendant by arguing that a defense witnesses’ testimony is unreasonable in the context of all the other evidence. State v. Jackson, COA No. 37585-1-II (June 23, 2009).

Blakely. A state court’s determination that the "prior conviction" exception to thegeneral rule that a sentencing judge may not make factual findings that increase the statutory maximum criminal penalty includes a determination that the instant offense was committed while the defendant was on probation for a prior offense, will not be upset by the Ninth Circuit in a habeas proceeding. Kessee v. Mendoza-Powers, No. 07-56153 (9th Cir. June 23, 2009).

Sexually Violent Predators. A pending detainer in one state will not invalidate a sex offender’s civil commitment in another state. Smith v. Richards, No. 07-35857 (9th Cir. June 23, 2009).

DNA Collection. The forcible collection, without a court order or warrant, of a DNA sample from an individual, who was convicted of a crime in another state and who did not fall within the parameters of the post-conviction DNA collection statutes, for entry into a cold case data bank constitutes a clear violation of the Fourth Amendment that may give rise to liability under 42 U.S.C. § 1983. Friedman v. Boucher, No. 05-15675 (9th Cir. June 23, 2009). Judge Callahan authored a strong dissent.

Street Performers. Seattle rules governing street artist behavior at the Seattle Center do not survive a First Amendment challenge as lawful "time, place, and manner" restrictions. Berger v. City of Seattle, No. 05-35752 (9th Cir. June 24, 2009).

WEEKLY UPDATE FOR JUNE 19, 2009

Post Conviction DNA Testing. A convicted person has no constitutional right of access to evidence for post-conviction DNA testing. District Attorney’s Office v. Osborne, No. 08-6 (June 18, 2009).

Double Jeopardy. An apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts does not affect the acquittals’ preclusive effect under the Double Jeopardy Clause. When the jury hangs on some counts, the government is not necessarily permitted to retry the defendant on those counts. Retrial will be barred when the government would be required to prove an issue that was necessarily resolved in the acquittal. Yeager v. United States, No. 08-67 (June 18, 2009).

Crawford. The deceased victim’s statements to police officers were testimonial, as the record made when this case was tried does not establish that the police officers were seeking information to respond to an ongoing emergency or to obtain information designed to enable officers to immediately end a threatening situation. State v. Koslowski, No. 80427-3 (June 18, 2009). Justice Sanders concurred. Chief Justice Alexander authored the dissenting opinion.

Mandatory Joinder. CrR 4.3.1 requires the dismissal of a charge of unlawful possession of a firearm stemming from acts committed in 2004, when the defendant was previously convicted of unlawfully possessing the same firearm for acts committed in 2005. State v. Kenyon, COA No. 37435-8-II (June 16, 2009).

Land Use. The Pierce County Hearing Examiner had the power to compel the Ciyt of Puyallup to provide water for commercial purposes to a property located outside the urban boundary that was already receiving water for residential purposes from the city.. Stanzel v. City of Puyallup, COA No. 37697-1-II (June 16, 2009).

Prosecutorial Immunity. A prosecutor is entitled to absolute immunity in an action brought under 42 U.S.C. § 1983, for not identifying and petitioning for the release of every inmate serving a sentence pursuant to a statute that has been declared unconstitutionally vague. Depending upon state statutes, such a prosecutor may still be liable for a state law claim of false imprisonment. Cousins v. Lockyer, No. 07-17216 (9th Cir. June 15, 2009).

WEEKLY UPDATE FOR JUNE 12, 2009

Judicial Bias. The due process clause was violated when a state supreme court justice sat on a case involving the financial interests of a major donor to the judge’s election campaign. Caperton v. A.T. Massey Coal, No. 08-22 (June 8, 2009).

Post Conviction DNA Testing. RCW 1073.170(2)(a)(iii) allows for post-conviction DNA when the DNA testing now requested would provide "significant new information." The Court holds that "significant new information" includes DNA test results that did not exist at the time of trial and that are material to the perpetrator's identity, regardless of whether DNA testing could have been performed at trial. Post-conviction DNA testing is properly denied where the results will not raise a probability, in light of all of the evidence, of the defendant’s innocence. State v. Riofta, No. 79407-3 (June 11, 2009). Justice Charles Johnson dissents, arguing that the Court has interpreted the statute too rigorously. Justice Chambers separately dissented to urge the Legislature to "take action."

Aggravated First Degree Murder. When a jury is convened solely to determine whether the defendant personally committed one or more of the aggravating circumstances in RCW 10.95.020, it is proper for the judge to instruct the jury that the defendant has been convicted of the crime of murder in the first degree and that the finding of guilt should not be considered as proof of the aggravating factors. State v. Thomas, No. 80643-8 (June 11, 2009). Justice Sanders agreed that a jury could be empaneled to determine the existence of the aggravating circumstances, but that the jury instructions used were improper. Thus, he dissented on this issue and on the majority’s resolution of a Batson claim.

Violation of Protection Orders. A passenger, who is charged with violating a protection order, does not have standing to object to an officer’s questioning a driver about the identity of the driver’s passengers. The spousal testimonial privilege does not allow a defendant, who is charged with violating a protection order, to keep the victim spouse off the stand. State v. Shuffelen, COA No. 61963-2-I (April 13, 2009, publication ordered June 8, 2009).

Interpretation of DNA Results. A Frye hearing is not required with respect to the interpretation of mixed-source DNA profiles, or the statitistical probabilities calculated by the PE method from such mixed-source DNA profiles. The counting method is acceptable for interpreting YSTR test results. State v. Bander, COA No. 61125-9-I (June 8, 2009).

Mentally Ill Offenders. An impaired ability to form intent is not a defense to a crime, if the State establishes that the defendant actually intended to commit the charged act. Testimony regarding "moral reasoning" is properly excluded in an insanity trial, because in an insanity case, "it is society's morals, and not the individual's morals, that are the standard for judging moral wrong. Sentencing a persistent offender, who suffers from a mental disorder, to life without the possibility of release, does not violate the prohibition upon cruel and unusual punishment. State v. Johnson, COA No. 60197-1-I (June 8, 2009).

Horn Honking. A duly enacted ordinance proscribing the honking of a horn for other than public safety reasons is entitled to a presumption of constitutionality. Horn honking per se is neither expressive conduct nor speech that is protected by the First Amendment. State v. Immelt, COA No. 60991-2-I (June 8, 2009).

"To Convict Instructions." A "to convict" jury instruction in an attempted first degree murder case is adequate if it follows the format of WPIC 100.02. The "to convict" instruction does not have to include a premeditation element. State v. Reed, COA No. 36407-7-II (June 10, 2009).

Vouching. The prosecutor does not improperly vouch for a witnesses credibility by offering into evidence a plea agreement that requires the witness to testify truthfully. State v. Ish, COA No.36562-6-II (June 10, 2009). (This opinion represents a disagreement with Division One’s opinion of State v. Green, 119 Wn. App. 15, 24, 79 P.3d 460 (2003).)

Ineffective Assistance of Counsel. Counsel in a three-strike case was ineffective for failing to determine the comparability of the defendant’s Kentucky sex abuse conviction. The Kentucky conviction, which was for sexual contact with the defendant’s 7-year-old niece, was not comparable to Washington’s first degree child molestation, as the Kentucky offense did not require proof that the then, 25-year-old defendant was more than 24-months older than the victim and was not married to the victim. In re Personal Restraint of Crawford, COA No. 37237-1-II (June 10, 2009). Judge Penoyer dissented.

WEEKLY UPDATE FOR JUNE 5, 2009

On June 2, 2009, the Washington Supreme Court granted review in the following cases:

Search Incident to Arrest. State v. Afana, No. 82600-5. Spokane County. Request of identification from a passenger in a parked car. "Grant and direct parties to address Gant." COA opinion reported at 147 Wn. App. 843 (2008).

RALJ Appeals. State v. Osman, No. 82671-4. King County. Whether the missing portion of an electronic record is significant or material under RALJ 5.4. COA opinion reported at 147 Wn. App. 867 (2008).

Unit of Prosecution. State v. Hall, No. 82558-1. King County. What is the correct unit of prosecution for witness tampering. COA opinion reported at 147 Wn. App. 485 (2008)

Rape Shield. State v. Jones, No. 82613-7. Benton County. This case involves whether the rape shield statute bars evidence that the victim consented to have sex with others in the same incident as the offense the defendant is charged with, and whether a trial judge may exclude evidence under ER 404(b) if the judge finds the proposed evidence is not credible. COA opinion is unpublished.

Privacy Act. State v. Patel, No. 82649-8. Spokane County. Instant messaging and privacy act. COA opinion is unpublished.

Attorney Fees. McGuire v. Bates, No. 82659-5. Whether the customer is the prevailing party. COA opinion reported at 147 Wn. App. 751 (2008).

Mobile Home Communities. Little Mtn. Estates Tenants Ass'n v. Little Mtn. Estates MHC LLC, No. 82574-2. COA opinion is unpublished.

Sexually Violent Predators. Unlawful custody, by itself, is not a jurisdictional impediment to a valid petition for commitment under the SVPA. An SVP committee may only be relieved of a stipulation if the stipulation was not entered into voluntarily, knowingly, and intelligently. When the stipulation is in writing, includes a list of the rights the detainee is waiving, and there is an in-court colloquy, the detainee will have a near impossible burden to overcome. Detention of Scott, COA No. 61121-6 -I (June 1, 2009).

Extradition. An alleged fugitive must be competent to participate in an interstate extradition proceeding. The level of competency needed, however, is limited. The alleged fugitive need only be able to consult her lawyer as to her identity and her status as a fugitive. In re Personal Restraint of Liu, COA No. 62820-8-I (June 1, 2009).

Double Jeopardy. Convictions for possession of methamphetamine and maintaining a vehicle for drug trafficking do not violate double jeopardy, as the latter crime has an element that is not present in the former crime and different mens rea, and these separate elements required different supporting evidence even if all facts supporting his convictions generally arose from the same course of conduct or circumstances. State v. Marin, COA No. 61262-0-I (June 1, 2009).

Failure to Register as a Sex Offender. A sex offender who lacks a fixed residence and who fails to report weekly as required by the statute may, regardless of the number of weekly reporting sessions missed, only be charged with one count of failing to register under former RCW 9A.44.130(11)(a). State v. Durrett, COA No. 60728-6-I (June 1, 2009). Judge Ellington dissented solely on the Linerud issue.

Reasonable Doubt Instruction. It is reversible error for a trial court to give any reasonable doubt instruction other than WPIC 4.01. State v. Castillo, COA No. 61867-9-I (June 1, 2009).

Double Jeopardy. Because the proof required to establish the intimidating a witness charge did not establish the felony harassment charge, the two convictions were not for the same offense and did not subject the defendant to double jeopardy.State v. Fuentes, COA No. 61319-7-I (June 1, 2009).

Forfeiture. Notice of appearances from the property owner’s attorneys that are served on counsel for seizing entity are sufficient to comply with RCW 69.50.505(5). Snohomish Regional Drug Task Force v. Jain, COA No. 60312-4-I (June 1, 2009).

Opinion. While a sexual assault nurse examiner’s opinion that the victim’s physical injuries were of the type you would expect to see in a non-consensual sexual encounter might be proper, testimony that "‘the nature and cause of [the victim’s] injuries’ was that ‘[t]hey're extensive injury related to nonconsensual sex’" and that "‘this was a very traumatic nonconsensual . . . penetration’" constituted an improper opinion of guilt. State v. Hudson, COA No. 36642-8-II (June 2, 2009). Judge Penoyer dissented.

Gang Testimony. Gang testimony should not have been admitted in this murder trial, as the State did not prove by a preponderance of the evidence that the alleged gang existed. State v. Asaeli, COA No. 35269-9-II (April 27, 2009, publication ordered June 2, 2009).

Powerpoint and Closing Arguments. Powerpoint slides used during closing argument will be scrutinized for possible misstatements of the law. State v. Asaeli, COA No. 35269-9-II (April 27, 2009, publication ordered June 2, 2009).

Ineffective Assistance of Counsel. Counsel’s failure to request lesser included instructions on manslaughter constituted ineffective assistance of counsel as the evidence of intentional murder was "sparse," a failed self-defense claim can support manslaughter, and the penalties between manslaughter and murder are significant.

State v. Grier, COA No. 36350-0-II (June 2, 2009).

Tax Foreclosure. RCW 84.64.080 is intended to protect the treasurer in paying out tax sale proceedings and not to determine ownership or prevent a tax-delinquent property owner from selling his or her interests. When a challenge arises as to the ownership of any "overage", the trial court is to determine who actually owned the property at the time of the sale and is to release the overage to that person. Stephenson v. Cumulative, LLC, COA No. 37738-1-II (June 2, 2009).

WEEKLY UPDATE FOR MAY 29, 2009

Confessions. Overruling Michigan v. Jackson, 475 U. S. 625 (1986), the Court holds that police may contact a defendant, who was appointed counsel at arraignment without a formal request for counsel, to see if the defendant wishes to answer questions. The proper administration of Miranda warnings, coupled with a voluntary waiver of the rights by the defendant, can yield an admissible statement. Montejo v. Louisiana,, No. 07-1529 (May 26, 2009). [Editor’s note: Wash. Const. art. I, § 9 is co-extensive with the Fifth Amendment. This case should, therefore, be binding on Washington Courts. See, e.g., State v. Unga, 165 Wn.2d 95, 100 (2008); State v. Radcliffe, 164 Wn.2d 900 (2008). ]

Frisks. An officer exceeds the permissible scope of a frisk by squeezing an item once he determines that the item does not contain a weapon. "[I]t is unlawful for officers to continue squeezing -- whether in one slow motion or several -- after they have determined a suspect does not have a weapon, to find whether the suspect is carrying drugs or other contraband. State v. Garvin, No. 80941-1 (May 28, 2009).

Domestic Violence Allegation. It is neither necessary nor advisable to inform the jury that charges have been designated as domestic violence crimes under chapter 10.99 RCW. State v. Hagler, COA No. 61107-1-I (May 26, 2009). Judge Ellington dissented on a separate issue.

Writs of Review. A writ of certiorari is available to the prosecution to correct errors of law. City of Seattle v. Holifield, COA No. 61679-0-I (May 26, 2009).

CrRLJ 8.3(b). Suppression of evidence is not an available remedy under CrRLJ 8.3(b). City of Seattle v. Holifield, COA No. 61679-0-I (May 26, 2009).

Impact Fees. A developer is not entitled to a full exemption from park impact fees whenever the developer previously contributed any land or money for parks pursuant to a condition of plat approval. City of Bellingham v. Woods, COA No. 62041-0-I (May 26, 2009).

Attempted Rape of a Child. Evidence was sufficient to support a conviction of attempted rape of a child where the defendant took many substantial steps toward completing the crime by: (1) entering the victim’s bedroom; (2) closing the bedroom door; (3) putting a knee on the bed; (4) unzipping his pants; (5) taking out his penis; (6) presenting his penis to the victim; (7) grabbing the victim’s buttocks and leaning to within 6-inches of the victim’s mouth with his penis exposed; and (8) telling the victim to perform oral sex on him -- not once, but twice. State v. White, COA No. 37263-1-II (May 27, 2009).

Withdrawal of Guilty Plea. A defendant who entered an Alford plea to a rape of a child charge in 2001 is entitled to an evidentiary hearing on his claimed "newly discovered evidence" of witness recantation. The motion for new trial is not untimely as the witnesses were difficult to locate. State v. Scott, COA No. 36846-3-II (May 27, 2009).

Violation of No Contact Orders. Double jeopardy does not bar convictions for two counts of violating a domestic violence no contact order based upon two non-threatening e-mails that were sent on different dates but read by the victim on the same date. These offenses are deemed committed on the day the defendant sent the e-mails. Thus, they do not constitute "same criminal conduct." State v. Allen, COA No. 36868-4-II (May 27, 2009).

Juvenile Sentencing. While double jeopardy did not bar convictions for both first degree robbery and first degree assault, the juvenile offender may be entitled to a reduced sentence for these two convictions pursuant to RCW 13.40.180(1). State v. S.S.Y., COA No. 37250-9-II (May 27, 2009).

Forfeiture. Money that is seized in an illegal search may be considered by the forfeiture court for the limited purpose of establishing its existence, and the court's in rem jurisdiction over it. The question in the forfeiture action then becomes whether there is sufficient untainted evidence to support a finding that the money was used for or gained from drug sales City of Walla Walla v. Ibarra-Raya, COA No. 26243-0-III (May 28, 2009).

Name Clearing. Oregon’s governor was entitled to qualified immunity in a 42 U.S.C. § 1983 action based upon his making stigmatizing statements in two press releases without providing the stigmatized employees with name-clearing hearings Tibbetts v. Kulongoski, No. 07-36067 (9th Cir. May 29, 2009).

Transferred Intent. Under the first degree assault statute, RCW 9A.36.011, intent to inflict great bodily harm transfers to an unintended victim who is uninjured and who the defendant did not know was present. State v. Elmi , No. 80380-3 (May 21, 2009). Justice Madsen authored the dissenting opinion.

Brady. Defendant was granted a new trial based upon the prosecutor’s failure to disclose the star witnesses’ criminal and arrest history. Prosecutor testified that he had no recollection of what he disclosed to defense counsel and that he did not recall what information the investigative officer provided to the prosecutor in response to the prosecutor’s request that the officer obtain the criminal history of the witness. The court states that:

United States v. Price, No. 05-30323 (9th Cir. May 21, 2009).

Witness Tampering. A witness who is the target of witness tampering suffers injury by being unduly pressured to act illegally and is therefore a victim. Thus, each witness that is the subject of witness tampering is "separate criminal conduct" for purposes of calculating the offender score. State v. Victoria, COA No. 61602-1-I (May 11, 2009).

Rape. A defendant received ineffective assistance of counsel in a rape in the second degree trial, for engaging in sexual intercourse with another person when the victim was incapable of consent by reason of being physically helpless or mentally incapacitated, when his counsel failed to propose a jury instruction on the "reasonable belief" defense, RCW 9A.44.030(1). State v. Powell, COA No. 37122-7-II (May 12, 2009).

Lay Opinion Testimony. A police officer may not render a lay opinion that the person on the surveillance tape is the defendant when that opinion is based solely upon the police officer’s contacts with the defendant on the day of the crime. State v. Wahsise, COA No. 36039-0-II (May 12, 2009).

Public Trials. The conducting of portions of pre-trial proceedings and voir dire without consideration of the Bone-Club factors was reversible error. State v. Heath, COA No. 36885-4-II (May 12, 2009).

At-Risk Youth. A juvenile court is required to find all statutory contempt sanctions, remedial and punitive, inadequate before resorting to its inherent power. Further, that finding of inadequacy requires a juvenile court to try all statutory contempt sanctions and specifically find

them ineffective before a court can exercise its inherent contempt powers to sanction a youth. Before a juvenile court imposes a punitive contempt sanction, full criminal due process protections attach. Inpatient treatment is an invalid purge condition on an otherwise punitive sanction. In Re Interest of Silva, No. 81573-9 (May 7, 2009). Justice Madsen authored a concurring opinion.

Slayer Statute. A finding of "not guilty by reason of insanity" is not a complete defense to the slayer statute. An action under the slayer statute is civil, and the determination of whether a slaying was willful and unlawful must be made in civil court notwithstanding the result of any criminal case. A finding of not guilty by reason of insanity does not make an otherwise unlawful act lawful. In Re Matter of Kissinger, No. 81328-1 (May 7, 2009).

Closing Argument. The prosecutor shifted the burden of proof to the defendant by improperly arguing that the defendant should have produced her passenger in a possession of methamphetamine prosecution, as there was no evidence that the passenger was under the control of the defendant and the passenger’s absence could be explained by the passenger’s desire not to incriminate himself. The prosecutor also improperly commented on the defendant’s right to remain silent. State v. Dixon, COA No. 37553-2-II (May 5, 2009). Judge Hunt dissented, finding that reversal was not required.

United States Supreme Court

Brady. Suppressed witness statements that corroborated the defendant’s trial position that he habitually used excessive amounts of drugs, that his addiction affected his behavior during the murders, and that the State’s contrary arguments were false and misleading, would not sustain his insanity defense as his behavior before, during and after the crimes was inconsistent with the contention that he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform it to the requirements of law. The suppressed evidence may have influenced the jury’s sentencing recommendation, so a remand to the lower court to fully consider whether the evidence might have been material to the jury’s assessment of the proper punishment (death or life) is proper. Cone v. Bell, No. 07-1114 (Apr. 28, 2009).

Sixth Amendment. A defendant’s statement to a jailhouse informant, that was elicited in violation of the Sixth Amendment right to counsel, was admissible to impeach his inconsistent testimony at trial. Kansas v. Ventris, No. 07-1356 (Apr. 29, 2009). [Editor’s note– The National Association of Criminal Defense Lawyers requested that the Court craft a broader exclusionary rule for uncorroborated statements obtained by jailhouse snitches because such snitches are so "inherently unreliable." The Court rejected this request, stating that "[o]ur legalsystem, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid "establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure." Spencer v. Texas, 385 U. S. 554, 564 (1967). It would be especially inappropriate to fabricate such a rule in this case, where it appears the jury took to heart the trial judge’s cautionary instruction on the unreliability of rewarded informant testimony by acquitting Ventris of felony murder."]

Persistent Offenders. A superior court judgment and sentence for a strike offense that indicated the defendant was under the age of 18 when the offense was committed is insufficient proof of the former strike, unless accompanied by proof that the superior court properly had jurisdiction over the offense. For crimes that are nor included in the auto-adult jurisdiction list, the State will generally need to produce the juvenile court’s Kent factor decline order. State v. Knippling, No. 80848-1 (Apr. 30, 2009).

Preservation of Error. The defendant failed to preserve his ER 404(b) objection for appeal and has failed to demonstrate any manifest constitutional error supporting reversal. The Court will not reverse the trial court's decision to admit evidence where the trial court rejected the specific ground upon which the defendant objected to the evidence and then, on appeal, the defendant argues for reversal based on an evidentiary rule not raised at trial. State v. Powell, No. 80535-1 (Apr. 30, 2009). Justice Fairhurst authored the lead plurality opinion. Justice Stephens authored a concurring opinion in which she found that the error was preserved, but was harmless. Justice Sanders dissented.

On April 28, 2009, the Washington Supreme Court granted petitions for review in the following cases:

Public Records Act. Whether metadata in e-mails are subject to the Public Records Act. O'Neill v. City of Shoreline, No. 82397-9. COA opinion reported at 145 Wn. App. 913 (2008).

Trial De Novo. Whether the person who requested a trial de novo pursuant to Mandatory Arbitration Rule 7.3 has the right to unilaterally withdraw that request. Hudson v. Hapner, No. 82409-6. COA opinion reported at 146 Wn. App. 280 (2008).

Restoration of Firearm Rights. Whether a defendant who was convicted of vehicular homicide when the offense was a class B felony is entitled to restoration of his right to possess a firearm, when his petition to have that right restored was filed after vehicular homicide was redesignated a class A felony and persons convicted of class A felonies may not have their rights restored. Rivard v. State, No. 82431-2. COA opinion reported at 146 Wn. App. 891 (2008).

Loss of Parental Consortium. Kelley v. Centennial Contractors, No. 82474-6. COA opinion reported at 147 Wn. App. 290 (2008). Whether a claim for loss of parental consortium must be joined with the parent’s action for personal injury against the same defendant.

Custody. An investigative Terry detention was not converted into custodial arrest for purposes of Miranda by the presence of numerous police vehicles. State v. Marcum, COA No. 61428-2-I (Apr. 27, 2009).

Informants. An investigative Terry stop of the defendant’s vehicle was proper based upon the confidential informant's history of providing accurate information to the police and his motivation to tell the truth, and by the police detectives’ corroborating observations. State v. Marcum, COA No. 61428-2-I (Apr. 27, 2009).

Competency of a Witness. The burden of establishing the competency of a mentally disabled 14-year-old victim is on the State. State v. S.J.W., COA No. 61753-2-I (Apr. 27, 2009).

Custody. A juvenile suspect was not in custody for purposes of Miranda when he was questioned in a private residence with his mother present. Significantly, the suspect’s mother summoned another person into the room when she became upset, and she terminated the interview when the questioning officer attempted to obtain a written statement. State v. S.J.W., COA No. 61753-2-I (Apr. 27, 2009).

Competency to Stand Trial. The trial court denied the defendant’s due process rights when it ordered that the trial proceed while the defendant was in a coma due to his suicide attempt and, thus, obviously incompetent to assist counsel or participate in his trial. State v. Anene, COA No. 37374-2-II (Apr. 28, 2009).

United States Supreme Court

Search Incident to Arrest. An officer may conduct a warrantless search of a vehicle upon the arrest of an occupant only when: (1) the arrestee cannot be secured in a way that limits his access to the vehicle; or (2) it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. Arizona v. Gant, No. 07-542 (Apr. 21, 2009).

Possession of a Stolen Vehicle. When calculating the offender score for a conviction for possession of a stolen vehicle, a prior conviction for vehicle prowling in the second degree counts as one point whether it is an adult or a juvenile conviction. State v. Monson, COA No. 60748-1-I (Apr. 20, 2009).

Resentencing and Double Jeopardy. A defendant who is resentenced following an appeal has the right to appeal his or her new sentence. The phrase "statutory maximum" as used in the Sentencing Reform Act is the term contained in RCW 9A.20.021. The application of a firearm sentencing enhancement to an assault with a firearm conviction does not violate a defendant’s protection against double jeopardy. State v. Toney, COA No. 36442-5-II (Apr. 21, 2009).

Erotic Dancers. The auditor abused her discretion by failing to consider any sanction less than a one year suspension of licence for a violation of the county’s lap dance ordinance. Brunson v. Pierce County Auditor, COA No. 37094-8-II (Apr. 21, 2009).

Second Amendment. The Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments. The Second Amendment, however, does not prohibits a local government from regulating gun possession on its property. Nordyke v. King, No. 07-15763 (9th Cir. Apr. 20, 2009).

Pro Se. While a defendant may invoke his or her self representation rights after a denial of a motion to substitute counsel, the invocation must be unequivocal. A request to represent oneself made while at the same time stating a preference for representation by a different lawyer and rearguing the change of counsel motion is insufficient to invoke Faretta. United States v. Mendez-Sanchez, No. 08-30044 (9th Cir. Apr. 23, 2009).

Guilty Pleas. A miscalculation of an offender score on one of two charges that occurred three months ago and that were charged separately, rendered the defendant’s guilty plea involuntary. The defendant is entitled to withdraw his plea to both the count with the erroneously calculated offender score and to the count, whose correctly calculated standard range, was higher than the standard range of the count with the erroneously calculated standard range. In Re PRP of Bradley, No. 81045-1 (Apr. 16, 2009). Justice Owens authored the concurrence. Chief Justice Alexander authored the dissent. [Editor’s note: In light of this case, counties may wish to amend their plea offer forms to indicate that this offer is separate and distinct from plea offers in any other cause numbers.]

Criminal History. For sentences imposed prior to the 2008 amendment to RCW 9.94A.500(1), a prosecutor’s summary of a defendant’s criminal history, even if not objected to by the defendant in the trial court, is insufficient to establish the existence of the defendant’s criminal history. In such cases, the defendant is entitled to a new sentencing hearing, with the State entitled to present evidence of the defendants’ criminal histories. State v. Mendoza, No. 80477-0 (April 16, 2009). Justice Owens authored the dissenting opinion.

DNA Sample Collection. The collection of biological samples for DNA identification purposes may occur during discovery under CrR 4.7(b)(2)(vi) if there is probable cause for the search. State v. Salgado, COA No. 60823-1-I (Apr. 13, 2009).

Telephone Harassment. A jury instruction that states that "[a] person commits the crime of Telephone Harassment when he or she, with intent to harass or intimidate any other person, makes a telephone call to such other person threatening to inflict injury on the person called or any member of the family or household of the person called," adequately conveys the temporal requirement announced in State v. Lilyblad, 163 Wn.2d 1, 177 P.3d 686 (2008). A defendant can be convicted of both telephone harassment and intimidating a witness arising from the same phone call without violating double jeopardy. State v. Meneses, COA No. 61118-6-I (Apr. 13, 2009).

Criminal Mistreatment. The terms "child" and "dependent person" in RCW 9A.42.010 are not mutually exclusive. A child can also be a dependent person. State v. Mitchell, COA No. 61462-2-I (Apr. 13, 2009).

Double Jeopardy. An indivisible plea of guilty does not prevent a double jeopardy challenge based on the same offense theory where the violation is clear from the record and was not otherwise waived. In this case, the defendant gets his sole sex offense vacated on double jeopardy grounds as the court finds that second degree assault and attempted third degree rape constitute the same offense State v. Martin, COA No. 60642-5-I (Apr. 13, 2009).

"Wash-out". A defendant incarcerated for violating his misdemeanor probation is not considered "in the community" for purposes of the wash out provisions of the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. State v. Ervin, COA No. 60474-1-I (Apr. 13, 2009).

Claim Filing Statute. An individual who is injured by a government employee, while that government employee is operating an employer provided vehicle within the scope of the government employee’s duties, must comply with Washington's claim filing statute before initiating a suit against the government employee. Andrea L. Melin-Schilling v. Imm, COA No. 61921-7-I (Apr. 13, 2009).

Sidewalks. Trees planted by a landowner are an artificial condition on the land, and that an abutting land owner has a duty to exercise reasonable care that the trunks, branches, or roots of trees planted by them adjacent to a public sidewalk do not pose an unreasonable risk of harm to a pedestrian using the sidewalk. Rosengren v. Hughes, COA No. 60804-5-I (Apr. 13, 2009).

Telephone Harassment. A call to the victim’s residence that is answered by the victim’s friend will support a conviction for telephone harassment where the victim also hears the threat. State v. Sloan, COA No. 36404-2-II (Feb. 14, 2009).

Division Three

Warrantless Entry. DUI is not a grave offense that will allow for a warrantless entry into a home to effect an arrest. The risk of losing blood-alcohol evidence is not a sufficient exigency that will justify a warrantless entry to effect an arrest. State v. Hinshaw, COA No. 26900-1-III (Apr. 16, 2009).

Possession of Child Pornography. The unit of prosecution for child pornography is one count for all images possessed at one time, regardless of the number of children depicted in the images or the number of images. State v. Southby, No. 80169-0 (Apr. 9, 2009). Justice Fairhurst concurred on this point. Justice Jim Johnson authored a dissenting opinion.

Ineffective Assistance of Counsel. It was ineffective assistance of counsel for the defendant’s attorney to fail to seek a severance of the child rape and molestation charges from the child pornography charges. State v. Southby, No. 80169-0 (Apr. 9, 2009). Justice Fairhurst dissented on this point. Justice Jim Johnson authored a dissenting opinion

Time-Bar. A personal restraint filed more than one year after a conviction is final, that challenges the inclusion of an out-of-state conviction in the offender score is time-barred under RCW 10.73.090. In re Personal Restraint of Banks, COA No. 60693-0-I (Apr. 6, 2009).

Facial Validity. Facial validity of a judgment and sentence is directed to the judgment and sentence itself. That is, the judgment and sentence must evidence the invalidity without further elaboration. Where the judgment and sentence results from a plea, the phrase "on its face" includes those documents signed as part of the plea agreement, and such documents may be considered if

relevant in assessing the facial validity of the judgment and sentence. In re Personal Restraint of Rowland, COA No. 59685-3-I (Apr. 6, 2009).

Material Change in the Law. Case law determining that a California burglary is not legally comparable to a Washington burglary falls within the material change in the law exception to RCW 10.73.100(6). In re Personal Restraint of Rowland, COA No. 59685-3-I (Apr. 6, 2009).

Amended Information. The State's amendment of the information after it had rested its case is not reversible error when the defendant knows about and agrees to the amendment before the State rests its case. State v. Hockaday, COA No. 35976-6-II (Apr. 7, 2009).

Escape of a Sexually Violent Predator. RCW 9A.76.115 does not violate either double jeopardy or equal protection. State v. Jagger, COA No. 37352-1-II (Apr. 7, 2009).

Escape. The offender score for escape pursuant to RCW 9.94A.525(15), each prior conviction is counted separately. State v. Combs, COA No. 37392-1-II (Apr. 7, 2009).

Jury Selection. Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court’s good-faith error in denying the defendant’s peremptory challenge to a juror. Rivera v. Illinois, No. 07-9995 (Mar. 31, 2009).

Clemency. Federally funded counsel appointed to represent a state prisoner, who has been sentenced to death, in a federal habeas corpus action shall also represent the defendant in state clemency actions at federal expense. Harbison v. Bell, No. 07-8521 (Apr. 1, 2009).

Dismissal of Juror. A trial court may only dismiss a seated juror for misconduct pursuant to RCW 2.36.110 only when the misconduct committed by the juror has affected the juror's ability to deliberate. State v. Depaz, No. 80574-1 (Apr. 2, 2009). Justice Madsen authored the concurring opinion.

On March 31, 2009, the Washington Supreme Court granted petitions for review in the following cases:

Search of Vehicle Incident to Arrest. State v. Adams, No. 82210-7. King County. COA opinion reported at 146 Wn. App. 595 (2008). Whether the justification for a warrantless search is eliminated when the arrestee is standing 4 to 5 feet from the car at the time of the arrest and the arestee locked the door of the car.

Warrantless Entry. State v. Ibarra-Cizneros, No. 82219-1. Walla Walla County. COA opinion reported at 145 Wn. App. 516 (2008). The emergency doctrine does not allow an officer to make a warrantless entry to search a private residence where the officer receives an early morning report of noise coming from a house that looks vacant during the day, the officer sees lights on and hears party noise coming from the house, and the officer determines that a vehicle parked in an ungated driveway to the residence may have been stolen.

Domestic Violence and Unlawful Force. State v. Aguirre, No. 82226-3. Thurston County. COA opinion is unpublished. Issues addressed in the unpublished opinion include whether the State’s DV expert improperly commented on the defendant’s guilt and the victim’s credibility, various jury instruction errors, and whether double jeopardy precludes a deadly weapon enhancement on second degree assault.

Warrantless Entry... State v. Schultz, No. 82238-7. Clallam County. COA opinion is unreported. Officers entered house without a warrant as part of an investigation into a possible DV incident. While in the house, officers observed drug paraphernalia. Officers then obtained a search warrant which the defendant challenged as overbroad.

Blakely and Consecutive Sentences. State v. Vance, No. 81393-1. Snohomish County. COA opinion reported at 142 Wn. App. 398 (2008).

LFOs. State v. Nason, No. 82333-2. Spokane County. COA opinion is reported at 146 Wn. App. 744 (2008). Whether this defendant received adequate due process before being incarcerated for his failure to pay his LFOs. Whether the defendant was entitled to credit against his LFOs for the time he spent in jail.

Double Jeopardy. State v. Faagata, No. 82336-7. Pierce County. COA opinion reported at 147 Wn. App. 236 (2008). Granted only on double jeopardy issue and consolidated with State v. Turner, No. 81626-3. COA held that the defendant's convictions for first-degree murder and second-degree felony murder did not violate double jeopardy under Wash. Const. art. I, § 9 or Fifth Amendment because trial court entered judgment and sentence for only the first-degree murder conviction, and judgment and sentence remained silent as to the second-degree felony murder conviction.

Protection Orders. In re Marriage of Freeman, No. 82283-2. COA opinion reported at 146 Wn. App. 250 (2008). Whether the restrained person under a permanent order of protection issued in a dissolution action is entitled to have that order modified in order to obtain a security clearance so he can continue his military career.

Civil Service Commission. Skinner v. Civil Serv. Comm'n of City of Medina, No. 82306-5. COA opinion reported at 146 Wn. App. 171 (2008). Whether the police officer’s appeal of the civil service commission’s decision was timely when it was filed within 30 days of the denial of his motion for reconsideration.

Arbitration. Broom v. Morgan Stanley DW Inc., No. 82311-1. COA opinion is unreported. Whether the rules applicable to arbitrators allow them to apply the statutes of limitations applicable to judicial proceedings.

Real Property. Proctor v. Huntington, No 82326-0. COA opinion reported at 146 Wn. App. 836 (2008). Battle over an easement and boundary marker.

Uniform Declaratory Judgment Act. South Tacoma Way, LLC v. State, No. 82212-3. COA opinion reported at 146 Wn. App. 639 (2008). Whether DOT’s sale of an alley was ultra vires.

Competency Restoration. Prosecutors may refile charges against an incompetent defendant if the prosecutor has a good faith basis to believe that the procedures outlined in chapter 10.77 RCW will likely lead to the restoration of a defendant's competency to stand trial. State v. Carneh, COA No. 61445-2-I (Mar. 30, 2009).

Arrest Warrants. An arrest warrant for failing to report to work crew was valid despite the fact that the work crew coordinator’s report to the court was not under oath. The court notes, however, that the better practice would be to have letters, such as the one the work crew coordinator wrote to the trial court, be signed under penalty of perjury. State v. Bishop, COA No. 36929-0-II (Mar. 31, 2009).

Frivolous Appeals. Property owners who appealed the denial of their motion to vacate the court's order dismissing their previously voluntarily withdrawn LUPA appeal are ordered to pay attorney’s fees to the County. Spice v. Pierce County, COA No. 37281-9-II (Mar. 31, 2009).

Ineffective Assistance of Counsel. Defense counsel is not ineffective if s/he declines to pursue a "nothing to lose" defense. It is not unreasonable for defense counsel to advise a defendant to abandon a claim that stood almost no chance of success. Counsel is not required to have a tactical reason—above and beyond a reasonable appraisal of a claim’s dismal prospects for success—for recommending that a weak claim be dropped altogether. Competence does not require a defense attorney to browbeat a reluctant witness into testifying. Knowles v. Mirzayance, No. 07-1315 (March 24, 2009).

Washington Supreme Court

City Ordinances. A city littering ordinance that classified the offense as a misdemeanor did not unconstitutionally conflict with the state statute that makes littering an infraction. Both the ordinance and the statute can co-exist as the littering statute did not pre-empt local ordinances and the ordinance does not legalize something that the state statute prohibits. State v. Kirwin, No. 80113-4 (Mar. 26, 2009). Justice Madsen authored a concurring opinion. Justice Sanders authored the dissent, in which he opines that an officer may not search a vehicle incident to the arrest of a passenger. The majority declined to reach this issue. In any event, the officer in this case prudently limited his search of the vehicle to that area of the car that the passenger could reach ("grab zone.").

Double Jeopardy and Andress. Where defendants were charged with both intentional murder and felony murder predicated on assault, but the jury was only instructed on felony murder, double jeopardy does not bar the State from proceeding with the intentional murder prosecution following the vacation of the felony murder conviction pursuant to Andress. State v. Wright, No. 78465-5 (Mar. 26. 2009). Justice Sanders authored the dissenting opinion, which was joined by Justice Chambers and Chief Justice Alexander.

Gambling. The 2006 amendment to the Washington Gambling Act, Chapter 9.46 RCW, by inserting the words "the internet" in the act's nonexclusive list of media through which the transmission of "gambling information" is prohibited, does not interfere with Congress’s authority to regulate interstate and international commerce. Rousso v. State, COA No. 61779-6-I (Mar. 23, 2009).

CrR 8.3 Dismissal. Charges of robbery, burglary, and theft of a firearm were properly dismissed pursuant to CrR 8.3 for governmental mismanagement and discovery violations where the prosecution failed: to provide a 60-page victim's statement until the day before trial; to provide the defendant’s statement to a deputy from the night of the incident; to provide the lead detective's report, which likely would have revealed other witnesses that the defendants needed to interview, and, to subpoena the victim for trial. While the lag time between the date of the incident and the date the officers transcribed the report and the witness statements was beyond the prosecutor's control, the record contained no evidence that the prosecutor’s office attempted to work with the sheriff’s office to resolve the delay and there were lengthy (9 day gaps) between the receipt of transcribed statements in the prosecutor’s office and their transmission to defense counsel. State v. Brooks, COA No. 36171-0-II (Mar. 24, 2009).

Burglary. RCW 9A.52.090(1)'s abandonment defense does not apply to a charge of second degree burglary. State v. Jensen, COA No. 36766-1-II (Mar. 24, 2009).

Frisks. Being "testy" and suspected of of illicit drug use does not support a finding that a suspect may be armed or dangerous. A pat-down based solely upon these two factors violates the Fourth Amendment. Ramirez v. City of Buena Park, No. 04-56832 (9th Cir. Mar. 25, 2009).

"Custody." The defendant bears the burden of proving that he was "in custody" for purposes of Miranda. United States v. Bassignani, No. 07-10453 (9th Cir. Mar. 25, 2009).

Washington Supreme Court

Collateral Attacks. A defendant, who was erroneously advised in both the plea agreement and the judgment and sentence that the maximum sentence he could receive was "twenty (20) years to life imprisonment," cannot bring a collateral attack 20 years after sentencing. The mistaken maximum sentence on the judgment and sentence, the actual maximum is life, is insufficient to demonstrate facial invalidity. To be facially invalid, a judgment and sentence requires a more substantial defect than a technical misstatement that had no actual effect on the rights of the petitioner. In re Personal Restraint of McKiernan, No. 81102-4 (Mar. 19, 2009).

Speedy Trial. A state is not responsible for the delays in getting a criminal case to a trial, if those delays are the result of tactics or omissions by public defender lawyers. Just because a court-appointed lawyer is from a public defender’s office does not make those attorneys government actors for whom the state is responsible for their tactical choices. Assigned counsel’s blame for delays are to be attributed to the defense, not the state — unless there is a complete breakdown in the public defender system. Vermont v. Brillon, No. 08-88 (March 9, 2009).

Washington Supreme Court

ER 404(b) and Prosecutorial Misconduct. The trial court properly allowed evidence of the defendant’s physical abuse of his step children pursuant to ER 404(b). The trial court, however, conditioned this ruling upon the defendant making an issue of the victim’s delay in reporting the sexual abuse. The prosecutor erred by discussing the physical abuse of the step children in his opening statement and in urging the jury in closing argument to consider the evidence for purposes other than it was declared admissible. State v. Fisher, No. 79801-0 (Mar. 12, 2009). Justice Madsen authored a concurring opinion.

Discovery. The State must provide a defendant with either direct access to a seized hard drive or a mirror image copy of the hard drive in a program used by the defense's computer expert. State v. Dingman, COA No. 34719-9-II (Mar. 10, 2009).

Failure to Register as a Sex Offender. A level II or III sex offender cannot be prosecuted for failing to report to the sheriff every 90 days because the legislature improperly delegated the responsibility for classifying the offender to the sheriff. State v. Ramos, COA No. 36491-3-II (Mar. 10, 2009).

Firearm Enhancements. Petitioners who were charged with firearm enhancements, but were sentenced for firearm enhancements, are entitled to be resentenced to the lesser firearm enhancement. In re Personal Restraint of Delgado, COA No. 35455-1-II (Mar. 10, 2009).

Firearm Enhancements. A petitioner who was charged with a firearm enhancement, but whose jury only received a deadly weapon special verdict form must have his sentence adjusted to reflect the lesser enhancement. In re Personal Restraint of Scott, COA No. 34686-9-II (Mar. 10, 2009).

Communication With a Minor for Immoral Purposes. RCW 9.68A.090, which prohibits "communicat[ions] with a minor or with someone the person believes to be a minor for immoral purposes through the sending of an electronic communication," is not unconstitutionally overbroad.

State v. Aljutily, COA No. 27190-1-III (Mar. 13, 2009).

Warrantless Arrest. In 2007, a three judge panel of the Ninth Circuit ruled that if police, standing outside the home, force the individual to exit the house, then the warrantless arrest will be deemed to have occurred "inside" the house. The panel opined that when a large number of officers are involved in a 12 hour standoff with a heavily armed individual, one of the officers should obtain an arrest warrant for the barricaded suspect. See Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007). Today, an en banc panel of the Court holds that during an armed a standoff, once exigent circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing his arrest, police need not obtain an arrest warrant before taking the suspect into full physical custody. This remains true regardless of whether the exigency that justified the seizure has dissipated by the time the suspect is taken into full physical custody.

Fisher v. City of San Jose, No. 04-16095 (9th Cir. Mar. 11, 2009) (en banc)

Washington Supreme Court

On March 3, 2009, the Washington Supreme Court granted petitions for review in the following cases:

Firearm Enhancements. State v. Kelley, No. 82111-9. Pierce County. COA opinion reported at 146 Wn. App. 370 (2008). Whether the firearm enhancement violates double jeopardy when use of a weapon is an element of the underlying crime.

Interfering with Domestic Violence Reporting. State v. Nonog, No. 82094-5. King County. COA opinion reported at 145 Wn. App. 802 (2008). Whether the charging document for interfering with domestic violence reporting must specify the underlying domestic violence crime.

Failure to Register as a Sex Offender. State v. Peterson, No. 82089-9. Snohomish County. COA opinion reported at 145 Wn. App. 672 (2008). Whether the subsections of RCW 9A.44.130 define elements and create alternative means of committing the crime of failure to register as a sex offender.

Guilty Pleas. State v. Sandoval, No. 82175-5. Grant County. COA opinion is unpublished. Whether a defendant is entitled to withdraw a guilty plea based upon his attorney’s misrepresentation of immigration consequences. [Note– The United States Supreme Court granted certiorari on February 23, 2009, of a case entitled Padilla v. Commonwealth of Kentucky, No. 08-651. The issue in Padilla is as follows: "Does the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea?"]

Medical Malpractice. Waples v. Yi, No. 82142-9. COA opinion reported at 146 Wn. App. 54 (2008). Does the notice requirement of former RCW 7.70.100(1) violate equal protection?

Defamation. Momah v. Bharti, No. 82059-7. COA opinion reported at 144 Wn. App. 731 (2008).

Sanctions. Over $10,000 in sanctions was properly assessed against an attorney, who inaccurately claimed that she had just learned of a new witness. Although opposing counsel violated the rules of discovery by failing to list the witness in answer to an interrogatory, the sanction attorney learned the witnesses’ name during a deposition that was conducted seven months before the start of trial. Deutscher v. Gabel, COA No. 58641-6-I (Mar. 2, 2009). Judge Dwyer authored a dissenting opinion.

Assault of a Child. Evidence that a father acted intentionally in biting his 4-month-old son was sufficient to establish that he acted recklessly for purposes of second degree assault of a child. Serious bruising can arise to the level of substantial bodily injury. State v. Hovig, COA No. 36803-0-II (Jan. 13, 2009, publication ordered Mar. 3, 2009).

Planned Residential Developments. A Planned Residential Development ("PRD") of 11.75 units per acre does not conflict the requirements of the underlying Residential Business - 2 ("RB-2") zone. Perimeter set backs are not properly included in the minimum open space requirement. City of Gig Harbor v. North Pacific Design, COA No. 36811-1-II (Mar. 3, 2009).

Fugitive Disentitlement Doctrine. The fugitive disentitlement doctrine will only permit the dismissal of a defendant’s appeal for his failure to timely report to jail, when the trial court advises the defendant of this consequence. State v. Tran, COA No. 25503-4-III (Mar. 3, 2009).

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 (9th Cir. Mar. 3, 2009) (replacing opinion filed Dec. 22, 2008).

United States Supreme Court

Domestic Violence and Firearms. In 1996, Congress extended the prohibition on the possession of firearms and ammunition to include persons convicted of "a misdemeanor crime of domestic violence." §922(g)(9). The definition of "misdemeanor crime of domestic violence," contained in §921(a)(33)(A), covers a misdemeanor battery whenever the battered victim was in fact the offender’s spouse (or other relation specified in §921(a)(33)(A)) even if the domestic relationship is not an element of the predicate misdemeanor offense. United States v. Hayes, No. 07-608 (Feb. 24, 2009).

Tribal Trust Lands. The Indian Reorganization Act (IRA or Act) authorizes the Secretary of the Interior to acquire land and hold it in trust "for the purpose of providing land for Indians." Ch. 576, §5, 48 Stat. 985, 25 U. S. C. §465. The IRA defines the term "Indian" to "include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction." §479. The phrase "now under Federal jurisdiction" refers to a tribe that was under federal jurisdiction at the time ofthe statute’s enactment. As a result, §479 limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934. Carcieri v. Salazar, No. 07-526 (Feb. 24, 2009).

The United States Supreme Court granted certiorari on February 23, 2009,in two cases of interest to prosecutors. These cases will be argued next term.

Sealing Records. A trial court that is ruling upon a motion to seal court records for a vacated criminal conviction under the current version of GR 15 must apply the mandatory five-part individualized analysis articulated in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982), to the request to seal. State v. Waldon, COA No. 61019-8-I (Feb. 23, 2009).

Firearm Enhancement. RCW 9.94A.533(3) does not violate the state and federal guarantees of equal protection, as the crimes that the statute exempts from the firearm deadly weapon enhancement are rationally related to the purpose of the sentencing enhancement. State v. Pedro-Guerra, COA No. 60949-1-I (Feb. 23, 2009).

Victim Penalty Assessment. Because a deferred disposition under RCW 13.40.127 is not a "juvenile offense disposition," a trial court lacks authority to impose a victim penalty assessment in such cases. State v. M.C., COA No. 61164-0-I (Feb. 23, 2009).

Voyeurism. The unit of prosecution for voyeurism is each victim whose privacy is violated. State v. Diaz-Flores, COA No. 60423-6-I (Feb. 23, 2009).

Public Records Act. When an agency designates a person to whom Public Records Act requests should be submitted, a requester who fails to submit his request to the designated public disclosure coordinator may not maintain a suit against the agency for failing to respond to the request in a timely fashion. Parmelee v. Clarke, COA No. 60836-3-I (Nov. 24, 2008, publication ordered Feb. 23, 2009).

Sexually Violent Predators. An SVP detainee may obtain a less restrictive alternative trial (LRA) if he can show a change in his condition since his initial commitment trial, rather than since his revocation hearing from a prior conditional LRA. But, in order to get such a trial, the proposed LRA must address the five conditions listed in RCW 71.09.092. In re Detention of Jones, COA No. 61025-2-I (Feb. 23, 2009).

Sexually Violent Predators. A jury that is confronted with evidence of several types of personality disorders need not unanimously agree on which personality disorder causes the detainee difficulty in controlling his behavior such that he is likely to engage in predatory acts of sexual violence if not confined to a secure facility. In re Detention of Sease, COA No. 36600-2-II (Feb. 24, 2009).

Growth Management. The Department of Ecology's proposed guidelines, which were not in effect when the City forwarded its amendment to its Shoreline Master Program (SMP) to Ecology for review, were not applicable to the City's amendment to its SMP that Ecology examined to confirm compliance with the Shoreline Management Act (SMA). The City’s amendment to its SMP prohibiting private docks in this shoreline of statewide significance is consistent with statutory guidelines because it promotes the public's ability to enjoy Blakely Harbor's aesthetic qualities and to navigate its waters. Samson v. City of Bainbridge Island, COA No. 34780-6-II (Feb. 24, 2009).

Sexual Exploitation of a Minor. The term "photograph" as used in RCW 9.68A.040 includes a Webcam viewing. State v. Ritter, COA No. 26804-7-III (Feb. 26, 2009).

Consecutive Sentences. A sentencing court has the authority, pursuant to RCW 9.94A.589(3), to run the sentence for a current conviction consecutively to a sentence the defendant is already serving, without identifying aggravating circumstances or declaring an exceptional sentence. State v. King, COA No. 26695-8-III (Feb. 26, 2009).

Failure to Register as a Sex Offender. Insufficient evidence supported the defendant’s conviction for failing to register. While the State proved that the defendant’s rent was not paid, that his landlord vacated him from his apartment, and that his possessions were stored and picked up by someone else after he was arrested, the State did not prove beyond a reasonable doubt that the defendant knew of his ouster from his apartment triggering his obligation to register at a new address or as a homeless person. State v. Drake, COA No. 26609-5-III (Feb. 26, 2009).

Domestic Violence Protection Orders. A trial court lacks the authority to issue a DV protection order under RCW 26.50.010 to protect a child , who is less than 16 years old, from a person with whom the child had a violent dating relationship. Neilson ex rel. Krump v. Blanchette, COA No. 27066-1-III (Feb. 26, 2009).

Malicious Prosecution. A malicious prosecution action filed against a deputy prosecuting attorney, who signed the certificate of probable cause, was properly dismissed as the DPA had probable cause to file the charges. Lassiter v. City of Bremerton, No. 07-35848 (9th Cir. Feb. 26, 2009).

Preferential Treatment in Employment. In an action brought pursuant to RCW 49.60.400, the white employee met his burden of showing that material issues of fact exist as to whether the fire chief's stated basis for promoting a less-qualified African-American applicant to the position of fireboat engineer. The evidence presented was that in the 4 of 45 instances in which the chief promoted someone other than the top-scoring applicant – the promoted person belonged to a racial or ethnic minority group, while the top-scoring person was a white male, that the plaintiff in the instant action scored 11-points higher than the minority candidate and had never been subjected to official discipline, and that the promoted minority candidate had been subjected to official discipline 17 times over the course of his career. Dumont v. City of Seattle, COA No. 61701-0-I (Feb. 17, 2009).

Domestic Violence No Contact Orders. Former RCW 26.50.110 (1) is violated by contact that would not require mandatory arrest. State v. Wofford, COA No. 36444-1-II (Feb. 18, 2009).

Collective Bargaining Agreements. When a new CBA includes a retroactive term provision, then the employer is required to arbitrate grievances that occur in the period between the expiration of one CBA and the execution of the new CBA. Kitsap County Deputy Sheriffs Guild v. Kitsap County, COA No. 37173-1-II (Feb. 18, 2009).

Crawford and Non-Existence of Government Records. A "certificate of nonexistence of a record (CNR)," which is an affidavit from a government official that essentially states that "a diligent search of the department’s files failed to disclose any record of [record that was looked for--i.e. "wages reported for [the defendant] rom January 1, 2004 through March 31, 2007" is non-testimonial in nature. United States v. Norwood, No. 08-30050 (9th Cir. Feb. 18, 2009)

Accomplice Liability. The only survivor of a single car accident cannot be charged as an accomplice to DUI or reckless driving under RCW 9A.08.020. City of Auburn v. Hedlund, No. 80110-0 (Feb. 12, 2009). Justice Madsen authored the dissenting opinion. [Editor’s note: This case does not resolve whether the survivor could be charged as an accomplice under the traffic code’s aiding and abetting statute, RCW 46.64.048.]

Double Jeopardy. The Court’s opinion reported at 160 Wn.2d 256, 156 P.3d 905 (2007), is reaffirmed. That opinion held that when a felony murder is reversed on appeal because one of two or more charged predicate offenses is invalid, the defendant may be retried on felony murder based on any of the valid alternative predicate offenses supported by sufficient evidence without being placed in double jeopardy. That opinion also held that when a jury is unable to agree on the greater charge, marks the jury verdict forms in a manner that indicates it hung on the greater charge, then the State can retry the defendant on the greater charge when the defendant appeals her conviction on the lesser offense and obtains relief. State v. Daniels, No. 76802-1 (Feb. 12, 2009). Justice Madsen authored a concurring opinion. Justice Sanders, who authored the original Daniels opinion, filed a dissenting opinion. Justice Chambers authored a separate dissenting opinion.

Three Strikes. A pre-SRA, non-RCW 9A, 1974 robbery conviction did not constitute a "strike" as its elements are comparable to a second degree robbery and the defendant spent more than 10 crime-free years in the community. When assessing these older convictions, courts are directed to use RCW 9.94A.030(32)(u), which looks to elements, instead of RCW 9.94A.035, which looks to length of sentence. State v. Failey, No. 81557-7 (Feb. 12, 2009).

Jury Selection. RCW 2.36.055, which King County to divide itself into two superior court jury districts, does not violate Const. art. I, § 22. State v. Lanciloti, No. 81219-5 (Feb. 12, 2009).

Indecent Liberties. Consent is an affirmative defense to a charge of indecent liberties under RCW 9A.44.100(1)(a). Instructions along the lines of WPIC 45.04 and WPIC 18.25 are appropriate.

Rape in the third degree is not a lesser included offense to the crime of indecent liberties. State v. Buzzell, COA No. 60012-5 (Feb. 9, 2009).

Merger and Double Jeopardy. Double jeopardy is not violated by convictions for both unlawful possession of drugs with intent to manufacture and unlawful manufacture of drugs as the two offenses do not meet the Blockburger test. State v. Danielson, COA No. 36470-1-II (Feb. 10, 2009).

Restitution. Restitution, as defined in RCW 13.40.020(22), does not include an award for unperformed but anticipated medical procedures. State v. C.A.E., COA No. 36739-4-II (Feb. 10, 2009).

Community Caretaking. The community caretaking doctrine did not authorize the warrantless entry into a motel room based upon a report from someone outside the motel room that a person inside his motel room had assaulted him and he wished to have the assailant removed from the room, because there was no evidence that someone still inside the motel room required medical or other immediate assistance. State v. Williams, COA No. 36539-1-II (Feb. 10, 2009).

Right of Entry Agreements. The government need not advise a property owner of his right to refuse to grant permission for officials to enter his property so they can monitor the property owner’s compliance with a conditional land use permit. Due process only requires that the hearing examiner, in order to revoke a conditional land use permit, determine that the property owner violated the conditions of the conditional land use permit by a preponderance of the evidence. Bonneville v. Pierce County, COA No. 36895-1-II (Nov. 4, 2008, publication ordered Feb. 10, 2009).

Land Use Vesting. The subject property did not qualify for a wetlands reasonable use exception because, despite the fact that a testamentary segregation divided the interest in the property before the critical March 1, 2005, the lots were not vested until the master applications were filed on November 28 and 29, 2005, well past the vesting deadline. Sylvester v. Grace Group, Inc., COA No. 37282-7-II (Feb. 10, 2009).

Corpus Delicti. Where a young child describes an act of attempted sexual intercourse, there is sufficient evidence to admit the defendant's statement that he succeeded in achieving penetration, even though his victim did not know that fact. State v. Angulo, COA No. 26492-1-III (Feb. 10, 2009). Judge Schultheis dissented.

Child Support. A parent who is in arrears on child support may, nonetheless, obtain a "reimbursement" under RCW 26.19.080(3) certain expenses not actually incurred by the obligee parent. The obligee parent does not establish that the expenses were incurred by producing a self-serving declaration. Rather the obligee parent must produce cancelled checks, prior tax returns, declarations from child-care providers, receipts for medical co-payments, and the like. Where an obligor parent waits a long time to make the request for "reimbursement", the obligee parent may be able to raise equitable defenses such as estoppel and laches. Fairchild v. Davis, COA No. 26818-7-III (Feb. 12, 2009). Judge Korsmo dissented.

Confrontation Clause. The trial court’s exclusion of the evidence of a key witnesses’ probation, when the witness testified to the contrary, violated the defendant’s confrontation clause rights. Slovik v. Yates, No. 06-55867 (9th Cir. Feb. 10, 2009).

Indian. The government failed to satisfy its burden of establishing that the defendant was an "Indian" for criminal law purposes where the evidence was insufficient to establish "tribal or federal government recognition as an Indian". The defendant was not an enrolled member of any tribe, he has never taken advantage of any tribal benefits to which he was entitled as a descendent, he only resided on the reservation between the ages of 6 and 7, he attended a school on the reservation that was open to non-Indians, and he never attended any ceremonies or dance festivals, has never voted in a Blackfeet tribal election, and did not have a tribal identification card. United States v. Cruz, No. 07-30384 (9th Cir. Feb. 10, 2009). [Editor’s note: The Washington test for who is an "Indian" for criminal law purposes also requires proof of "tribal or federal government recognition as an Indian". See State v. Daniels, 104 Wn. App. 271, 278, 16 P.3d 650 (2001).]

Retaliatory Discharge. A final decision maker’s wholly independent, legitimate decision to terminate an employee can insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have the employee fired. Lakeside-Scott v. Multnomah County, No. 05-35896 (9th Cir. Feb. 12, 2009).

On February 3, 2009, the Washington Supreme Court granted petitions for review in the following cases:

Custodial Interference. State v. Boss, No. 81897-5. King County. COA opinion reported at 144 Wn. App. 878 (2008). Whether the defendant’s knowledge of the validity of the custody order is an element of the offense of custodial interference in the first degree? Whether the validity of the order is a question of law for the trial court to decide as part of its gate-keeping function? Whether, in a prosecution for first degree custodial interference under RCW 9A.40.060(1), the State must prove that the defendant knew, at the time the crime was alleged to have been committed, that someone other than the defendant had a lawful right to physical custody of the child in question?

Prison Litigation. Parmelee v. O’Neel, No. 82128-3. COA opinion reported at 145 Wn. App. 223 (2008). Whether inmate was improperly infracted for violating the state misdemeanor criminal libel statute? Whether the inmate may recover damages for First Amendment retaliation by DOC?

Conditional Use Permits. Kelly v. County of Chelan, No. 81855-0. COA opinion reported at 145 Wn. App. 166 (2008). Whether a developer can take advantage of the vested rights doctrine when he misses deadlines contained in the conditional use permit?

Termination of Parental Rights. In re Dependency of Singleton, No. 81720-1. COA opinion is unpublished. Whether the State must offer a mother a psychological assessment and family preservation or home support services, despite the mother’s failure to address her substance abuse problem?

Fraudulent Transfer of Property. Was liability for the husband’s long-term sexual abuse of a child properly assessed on the ex-wife when the divorce decree transferred all assets to the ex-wife? Clayton v. Wilson, No. 81920-3. COA opinion reported at 144 Wn. App. 86 (2008).

Liquidation of Closely Held Corporations. Sound Infiniti, Inc. v. Snyder, No. 81923-8. COA opinion reported at 145 Wn. App. 333 (2008).

Use Tax. G-P Gypsum Corp. v. Dep’t of Revenue, No. 81995-5. COA opinion reported at 144 Wn. App. 664 (2008). Whether a city’s use tax applied to natural gas under the circumstances presented.

Comparability of Foreign Convictions. The production of a charging document from another jurisdiction is sufficient to establish comparability for purposes of sentencing in Washington if the law of the other jurisdiction holds that a defendant’s guilty plea to a charging document constitutes an admission of the facts alleged by the government in the charging document. State v. Releford, COA No. 59701-9-I (Feb. 2, 2009).

Replica Antique Pistol. A replica antique firearm constitutes a "firearm" for purposes of the unlawful possession of a firearm statute, despite missing its flint. The absence of a flint is the equivalent of an unloaded modern firearm. The only effort required to make the pistol fully operational was a trip to obtain the ammunition at a nearby specialty gun shop. State v. Releford, COA No. 59701-9-I (Feb. 2, 2009).

Probable Cause to Arrest. Officers had probable cause to arrest a woman for theft, where the woman picked up a casino ticket belonging to another and attempted to cash it. The woman’s "innocent explanation" that she thought the ticket was abandoned was rejected under the circumstances – not the type of property generally abandoned and the ticket was left unattended for only a brief period of time. State v. Wagner, COA No. 60828-2-I (Feb. 2, 2009).

Tax Foreclosure Proceedings. Before real property that is owned as a tenancy in common can be foreclosed for failure to pay taxes, the County must send a separate notice by certified mail to each cotenant whose interest is being foreclosed. A single notice sent to cotenants together does not satisfy the statutory notice requirement, and will result in an invalid foreclosure proceeding. Homeowners Solutions, LLC. v. Nguyen, COA No. 61267-1-I (Feb. 2, 2009).

Felony DUI. The prior convictions that are elements of felony DUI are properly included in the calculation of the offender score. State v. Draxinger, COA No. 36952-4 (Dec. 23, 2008, publication ordered Feb. 3, 2009).

Terry. Facts sufficient to justify a Terry stop for suspected drug offense existed where the defendant entered a known drug house at 3:20 a.m. for a two-minute-long visit. State v. Doughty, COA No. 26573-1-III (Feb. 5, 2009). Judge Schultheis dissented.

Prosecutorial Immunity. Supervising district attorneys possess absolute immunity against claims they failed to ensure line prosecutors disclosed constitutionally required information to criminal defendants. Van de Kamp v. Goldstein, No. 07-854 (Jan. 26, 2009).

Pat-Downs. In the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense. Arizona v. Johnson, No. 07-1122 (Jan. 26, 2009). This Fourth Amendment decision appears consistent with the Const. Art. I, § 7 opinion in State v. Mendez, 137 Wn.2d 208, 970 P.2d 722 (1999).

Anti-Retaliation. Federal law protects a worker from being fired after telling investigators, in an internal probe, about sexual harassment on the job. The anti-retaliation provision of Title VII, a key workplace anti-bias law extends to a worker who speaks out about discrimination not on her own, but in answering questions during an employer-ordered investigation. Crawford v. Metro Government of Nashville , No. 06-1595 (Jan. 26, 2009).

Pre-arrest Silence. The State may not use a testifying defendant’s pre-arrest silence as evidence of guilt. Such silence may only be used to impeach the defendant’s testimony. State v. Knapp, COA No. 36098-5-II (Jan. 27, 2009).

Public Trials. A defendant who waived his right to an open trial, lacks standing to object on the public’s behalf, to the private questioning of certain jurors in the judge’s chambers. State v. Wise, COA No. 36625-8-II (Jan. 27, 2009).

Accomplice Liability. The Ninth Circuit’s grant of habeas corpus on the grounds that an accomplice jury instruction that quoted RCW 9A.08.020 verbatim violated the defendant’s constitutional rights by confusing the jury is reversed. Waddington v. Sarausad, No. 07-772 (Jan. 21, 2009).

§ 1983. Saucier, which mandated a two-step sequence for resolving government officials’ qualified immunity claims: is overruled. A court now may skip the question of whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and may immediately proceed to determine whether the right that the plaintiff alleges was "clearly established" at the time of the defendant’s alleged misconduct. Pearson v. Callahan, No. 07-751 (Jan. 21, 2009).

Exigent Circumstances. Officer’s warrantless entry into a house was justified under the "officer and public safety" prong of the "exigent circumstances" exception to the warrant requirement by a combination of large quantities of a toxic chemical and a missing firearm. State v. Smith, No. 79917-2 (Jan. 22, 2009). Justice Sanders authored the dissenting opinion.

Public Records Act. The one year period for filing an action under RCW 42.56.550(6) to challenge a public agency’s claim of exemption or withholding of documents does not begin to run until the public agency provides a detailed privilege log under RCW 42.56.210(3) and Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 884 P.2d 592 (1994). Rental Housing Ass’n of Puget Sound v. City of Des Moines, No. 80532-6 (Jan. 22, 2009). Justice Fairhurst authored a concurring opinion. Justice Madsen authored the dissenting opinion.

Time for Trial. The 2003 amendments to CrR 3.3 and 4.1 eliminated the judicially created doctrine of constructive arraignment -- the Striker rule. State v. Rookhuyzen, COA No. 61427-4-I (Jan. 20, 2009).

Paternity. The State of Washington has standing to challenge paternity when there is a presumed father. In re the Parentage of M.K.M.R., COA No. 61138-1-I (Jan. 20, 2009).

Contributory Negligence. Where there is no issue of joint and several liability and plaintiffs seek damages only for injuries caused by a single defendant's negligence, there is no need to instruct the jury to segregate damages caused by intentional conduct. Thus, if the plaintiff only sues one defendant and only alleges a claim of negligence, the defendant is not entitled to have the jury determine what portion of the plaintiff’s loss was due to the intentional conduct of another. King County v. Rollins, COA No. 61137-2-I (Jan. 20, 2009).

Blakely Error. An exceptional sentence that was imposed at a time when the SRA did not allow for the empaneling of a jury to determine the existence of aggravating circumstances cannot be harmless error. State v. Pleasant, COA No. 21922-4-III (Jan. 22, 2009).

Brady. The government does not violate Brady by failing to call an individual who was listed on their witness list at trial. United States v. Bond, No. 06-50628 (9^th Cir. Jan. 20, 2009).

Prosecutor Immunity. Prosecutor enjoy absolute immunity for parole and clemency recommendations. Brown v. California Department of Corrections, No. 07-55409 (9^th Cir. Jan. 23, 2009).

On January 6, 2009, the Washington Supreme Court granted review in the following cases:

Unlawful Detainer and Lease Defaults. Eastwood, dba Double KK Farm v. Horse Harbor Found., Inc., No. 81977-7. COA opinion is unpublished.

Condominium Ownership. Lake v. Woodcreek Homeowners Ass’n, No. 81873-8. COA opinion is reported at 142 Wn. App. 356 (2007).

Public Records Act. Release, under the Public Records Act (PRA), of loan records received by the Attorney General’s Office (AGO) during litigation with the loan company cannot proceed until the loan customers are be notified and have an opportunity to respond. Federal law does not preempt the PRA regarding non-public information contained in the customer loan files. The loan company is not entitled to a preliminary injunction to prevent the release of the items based upon an argument that the AGO’s decision to release its attorney work product is arbitrary and capricious. Ameriquest Mortgage Company v. State Attorney General

WEEKLY UPDATE FOR JANUARY 2, 2009

Physical Control. Actual physical control is an included offense of DUI. State v. Nguyen, No. 80752-3 (Dec. 31, 2008).

Certificates of Discharge. A sentencing court has a non-discretionary obligation to issue a certificate of discharge effective as of the date it receives notice that an offender has completed all requirements of the sentence. State v. Johnson, COA No. 61311-1-I (Dec. 29, 2008).

Terry Stops. Information supporting a Terry stop will be reviewed under the totality of the circumstances test instead of the Aguilar-Spinelli test. Police are allowed to give great credence to information provided by a citizen who has been a victim of a crime. State v. Lee, COA No. 60669-7-I (Dec. 29, 2008).

Telephone Harassment. A call to a public official may support a charge of telephone harassment when the caller has the requisite intent at the time of making the call. The misdemeanor portion of RCW 9.61.230 is not unconstitutionally overbroad based upon the absence of statutory definitions for the terms "lewd, lascivious, indecent, and obscene". The statute is also not unconstitutionally vague. State v. Alphonse, COA No. 58449-9-I (Dec. 29, 2008).

Banishment Orders. An order banishing a defendant convicted of telephone harassment from the City of Everett was too broad. A narrower order could adequately protect the victim. State v. Alphonse, COA No. 58449-9-I (Dec. 29, 2008).

Double Jeopardy and Multiple Sex Offenses. When multiple identical charges of sex abuse are alleged, care must be taken to ensure that each "to convict" instruction requires the jury to find a different and distinct act. As a general rule, a separate "to convict" instruction should be offered for each count, and each "to convict" instruction should include language along the lines of "'on a day other than [the other count]'" or "'in an incident separate from and in addition to any incident that may have been proved in [the other] count.'" State v. Berg, COA No. 60729-4-I (Dec. 29, 2008).

No Contact Orders with Biological Children. A court may order a child rapist to not have unsupervised contact with his own biological children when the rapes occurred in the family home and the rapist exploited his role as a parent figure to gain the victim’s trust. State v. Berg, COA No. 60729-4-I (Dec. 29, 2008).

Community Custody. A trial court may no longer impose a community custody term that theoretically exceeds the statutory maximum along with clarifying language on the judgment and sentence that the total term of incarceration and community custody cannot exceed the maximum. Such a sentence is not authorized by the SRA because it is indeterminate in nature. State v. Linerud, COA No. 60769-3-I (Dec. 29, 2008). [Editor’s note– This opinion expressly overrules Division One’s prior affirmance of this practice in State v. Davis, 146 Wn. App. 714, 192 P.3d 29 (2008).]

Judicial Conflicts. A defendant who fails to move for a judge’s recusal in the trial court, based upon the judge’s former representation of the defendant, waives the issue on appeal. State v. Morgensen, COA No. 36853-6-II (Dec. 30, 2008).

Replaying Testimony. A trial court's decision to allow the jury to listen to an audiotape of trial testimony during deliberations will be reviewed under the abuse of discretion standard, taking into consideration the factors set forth in State v. Koontz, 145 Wn.2d 650, 41 P.3d 475 (2002). State v. Morgensen, COA No. 36853-6-II (Dec. 30, 2008).

Ninth Circuit