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WEEKLY UPDATE
FOR JULY 2, 2009
Division Two
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.
Division Three
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
United States Supreme Court
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).
Division One
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).
Division Two
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).
Ninth Circuit
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
United States Supreme Court
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).
Washington Supreme Court
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.
Division Two
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).
Ninth Circuit
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
United States Supreme Court
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).
Washington Supreme Court
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.
Division One
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).
Division Two
"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
Washington Supreme Court
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.
Division One
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).
Division Two
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
United States Supreme Court
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). ]
Washington Supreme Court
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).
Division One
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).
Division Two
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).
Division Three
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).
Ninth Circuit
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).
WEEKLY UPDATE FOR MAY 22, 2009
Washington Supreme Court
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.
Ninth Circuit
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:
where the prosecutor states either that he cannot remember or
does not know what information his agents relayed to him, the
government’s burden is not met. Allowing such convenient and
conclusory testimony to defeat a Brady claim would render
a defendant’s right to obtain Brady material meaningless.
United States v. Price,
No. 05-30323 (9th Cir. May 21, 2009).
WEEKLY UPDATE FOR MAY 15, 2009
Division One
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).
Division Two
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).
WEEKLY UPDATE FOR MAY 8, 2009
Washington Supreme Court
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).
Division Two
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.
WEEKLY UPDATE FOR MAY 1, 2009
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."]
Washington Supreme Court
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.
Division One
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).
Division Two
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).
WEEKLY UPDATE FOR APRIL 24, 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).
Division One
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).
Division Two
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).
Ninth Circuit
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).
WEEKLY UPDATE FOR APRIL 18, 2009
Washington Supreme Court
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.
Division One
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).
Division Two
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).
WEEKLY UPDATE FOR APRIL 11, 2009
Washington Supreme Court
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
Division One
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).
Division Two
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).
WEEKLY UPDATE FOR APRIL 3, 2009
United States Supreme Court
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).
Washington Supreme Court
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.
Division One
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).
Division Two
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).
WEEKLY UPDATE FOR MARCH 27, 2009
United States Supreme Court
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.
Division One
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).
Division Two
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).
Ninth Circuit
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).
WEEKLY UPDATE FOR MARCH 20, 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).
WEEKLY UPDATE FOR MARCH 13, 2009
United States Supreme Court
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.
Division Two
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).
Division Three
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).
Ninth Circuit
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)
WEEKLY UPDATE FOR MARCH 6, 2009
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).
Division One
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.
Division Two
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).
Division Three
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).
Ninth Circuit
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).
WEEKLY UPDATE FOR FEBRUARY 27, 2009
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.
Forfeiture. Alvarez v. Smith, No.
08-351. Whether local law enforcement agencies may seize and
retain custody indefinitely of personal property without
judicial or administrative review of the lawfulness of the
continued detention of the property.
Ineffective Assistance of Counsel.
Padilla v. Commonwealth of Kentucky, No. 08-651. 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?
Division One
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).
Division Two
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).
Division Three
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).
Ninth Circuit
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).
WEEKLY UPDATE FOR FEBRUARY 20, 2009
Division One
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).
Division Two
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).
Ninth Circuit
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)
WEEKLY UPDATE FOR FEBRUARY 13, 2009
Washington Supreme Court
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).
Division One
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).
Division Two
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).
Division Three
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.
Ninth Circuit
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).
WEEKLY UPDATE FOR FEBRUARY 6, 2009
Washington Supreme Court
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.
Division One
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).
Division Two
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).
Division Three
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.
WEEKLY UPDATE FOR JANUARY 30, 2009
United States Supreme Court
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).
The Supreme Court granted certiorari in the
following case of interest to prosecutors:
Interrogations. Maryland v. Shatzer, Sr.,
No. 08-680. Whether Edwards v. Arizona (1981), which
bars police from initiating questioning with criminal suspects
who have invoked their right to counsel, applies to an
interrogation that takes place nearly three years later.
Pleadings in this case may be found on
SCOUTUSWiki.
Division Two
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).
WEEKLY UPDATE FOR JANUARY 23, 2009
United States Supreme Court
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).
Washington Supreme Court
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.
Division One
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).
Division Three
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).
Ninth Circuit
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 (9th Cir. Jan. 20, 2009).
Prosecutor Immunity. Prosecutor enjoy absolute immunity
for parole and clemency recommendations.
Brown v. California Department of
Corrections, No. 07-55409 (9th Cir.
Jan. 23, 2009).
WEEKLY UPDATE FOR JANUARY 16, 2009
United States Supreme Court
Blakely and Consecutive Sentences. The Sixth Amendment
does not inhibit States from assigning to judges, rather than to
juries, the finding of facts necessary to the imposition of
consecutive, rather than concurrent, sentences for multiple
offenses.
Oregon v. Ice, No.
07-901 (Jan. 14, 2009). [Editor’s note: This opinion is contrary to
the Washington Supreme Court opinion of In re Personal Restraint
of Van Delft, 158 Wn.2d 731, 147 P.3d 573 (2006), cert.
denied, 127 S. Ct. 2876 (2007). Since Van Delft rested
only upon the federal constitution, the United States Supreme
Court’s opinion in Ice controls the issue in Washington
Courts. See generally State v. Radcliffe, 164 Wn.2d
900, 907, 194 P.3d 250 (2008) (when the United States Supreme Court
decides an issue under the United States Constitution, all other
courts must follow the Supreme Court's rulings); State v.
Laviollette, 118 Wn.2d 670, 673, 826 P.2d 684 (1992) (the United
States Supreme Court is the final arbiter of controversies arising
under the federal constitution and Washington courts must follow
their interpretation of a particular provision); State v. Nixon,
10 Wn. App. 355, 357, 517 P.2d 212 (1973), review denied, 83
Wn.2d 1014 (1974) (if a United State Supreme Court's decision or
interpretation of the Fourteenth Amendment is in conflict with that
rendered by the Washington State Supreme Court, the decision of the
United States Supreme Court controls)].
Good Faith Exception to Suppression. When police mistakes, such
as failing to recall an arrest warrant, leading to an unlawful
search are the result of isolated negligence attenuated from the
search, rather than systemic error or reckless disregard of
constitutional requirements, the exclusionary rule does not apply.
Herring v. United States,
No. 07-513 (Jan. 14, 2008). [Editor’s note: This opinion will have
no effect in Washington as our appellate courts have already
rejected this theory under Const. art. I, § 7.]
Washington Supreme Court
Separation of Powers. The 2007 statutory
definition of "disability" that the Legislature declared should be
applied retroactively to causes of action occurring the day before
the opinion in McClarty v. Totem Elec., 157 Wn.2d 214, 137
P.3d 844 (2006), was filed and to causes of action occurring on or
after the effective date of the amendment does not violate
separation of powers.
Hale v. Wellpinit School District, #49,
No. 80771-0 (Jan. 15, 2009).
Nunc Pro Tunc. A trial court misuses its nunc pro
tunc power and abuses its discretion when it uses such an order to
change its mind or rectify a mistake of law. But where the record
demonstrates that the court intended to take, and believed it was
taking, a particular action only to have that action thwarted by
inartful drafting, a nunc pro tunc order stands as a means of
translating the court's intention into an order.
State v. Hendrickson,
No. 80245-9 (Jan. 15, 2009).
Public Records Act. A sanction of $15 a day for
King County’s noncompliance with the Public Records Act was
insufficient under the facts of this case. In calculating the
appropriate sanction on remand, the trial court should consider the
entire legislative penalty range, with no presumption that the
minimum penalty should be applied. Mitigating factors to be
considered are: (1) the lack of clarity of the PRA request; (2) an
agency's prompt response or legitimate follow-up inquiry for
clarification7; (3) good faith, honest, timely, and strict
compliance with all the PRA procedural requirements and exceptions;
(4) proper training and supervision of personnel; (5) reasonableness
of any explanation for noncompliance; (6) helpfulness of the agency
to the requestor; and (6) the existence of systems to track and
retrieve public records. Aggravating factors that increase a penalty
are (1) a delayed response, especially in circumstances making time
of the essence; (2) lack of strict compliance with all the PRA
procedural requirements and exceptions; (3) lack of proper training
and supervision of personnel and response; (4) unreasonableness of
any explanation for noncompliance; (5) negligent, reckless, wanton,
bad faith, or intentional noncompliance with the PRA; (6)
dishonesty; (7) potential for public harm, including economic loss
or loss of governmental accountability11; (8) personal economic
loss; and (9) a penalty amount necessary to deter future misconduct
considering the size of the agency and the facts of the case.
Yousoufian v. The Office of Ron Sims, No. 80081-2 (Jan. 15,
2009). The
lead opinion of the
plurality was authored by Justice Sanders. Justice Chambers authored
a
concurring opinion. Justice
Jim Johnson authored a separate
concurring opinion. Chief
Justice Alexander authored an opinion that
concurred in part and dissented in part.
Justice Owens authored a
dissenting opinion.
Division One
Jail Phone Calls. A pre-trial detainee has no
reasonable expectation of privacy in jail telephone conversations.
Accordingly, a recording of such conversations may not be suppressed
as a violation of Const. art. I, § 7.
State v. Archie, COA
No. 60227-6-I (Jan. 12, 2009)
Truancy. A proceeding to declare a child truant
affects the child's rights to liberty, privacy, and education. Due
process requires that the child be afforded counsel at the initial
hearing, despite RCW 28A.225.035(11), which provides that "[t]he
court may permit the first hearing to be held without requiring that
either party be represented by legal counsel, and to be held without
a guardian ad litem for the child."
Bellevue School Dist. v. E. S.,
COA No. 60528-3-I (Jan. 12, 2009).
Claim Filing Statute. The failure to explicitly
state the location where an individual signs, under penalty of
perjury, the tort claim to be submitted under the claim filing
statute is not fatal to the tort claim if the place of signing is
reasonably inferred from the information provided in the claim.
Johnson v. King County,
COA No. 61047-3-I (Jan. 12, 2009).
Division Two
Possession with Intent to Deliver. Evidence was
sufficient to sustain convictions for possession with intent to
deliver, despite the fact that officers did not discover marijuana
on the defendant’s persons or within their vehicles. Circumstantial
evidence supported the conclusion that the black plastic bags that
the defendant were observed removing from a known drug house
contained marijuana, as marijuana was found in a similar bag that
was in the custody of another driver.
State v. Sanchez, COA
No. 36029-2-II (Jan. 13, 2009).
Community Custody Conditions. State v. Bahl,
164 Wn.2d 739, 193 P.3d 678 (2008), which held that a preenforcement
challenge to a community custody condition prohibiting the
possession of pornographic material ripe for review, does not
require appellate courts to abandon the ripeness doctrine for all
preenforcement challenged to community custody provisions. The
defendant’s preenforcement challenge to a community custody
condition prohibiting the possession of drug paraphernalia, which
does not implicate First Amendment rights, is not ripe for review.
State v. Sanchez, COA
No. 36029-2-II (Jan. 13, 2009).
Community Custody Conditions. A community custody
condition prohibiting drug traffickers from possessing cellular
telephones and electronic storage devices was clearly a valid
crime-related prohibition.
State v. Sanchez, COA
No. 36029-2-II (Jan. 13, 2009).
Sexual Misconduct With a Minor. RCW
9A.44.093(1)(b) only criminalizes sexual contact between school
employees and students aged 16 and 17.
State v. Hirschfelder,
COA No. 36804-8-II (Jan. 13, 2009).
Division Three
Legal Financial Obligations. The 10-year
jurisdictional time limit for collecting LFOs begins after release
from the initial term of incarceration, rather than from release
from subsequent periods of incarceration imposed in the same action.
State v. Olson, COA
26749-1-III (Jan. 13, 2009).
Medical Marijuana. A defendant’s presentation of
the paperwork supporting his primary care giver affirmative defense
to police 1 ½ years after arrest is not fatal to the assertion of
the affirmative defense as the defendant was arrested away from home
and, once at the jail, the police did not give him the opportunity
to retrieve his documents.
State v. Adams, COA
No. 26168-9-III (Jan. 13, 2009).
Ninth Circuit
Prosecutor Civil Liability. Qualified immunity is not available
to a prosecutor, being sued in his individual capacity, by a deputy
who claims that he was retaliated against for statement’s the deputy
district attorney’s attorney made to the press.
Eng. v. Cooley, No.
07-56055 (9th Cir. Jan. 14, 2009).
WEEKLY UPDATE FOR
JANUARY 9, 2009
Supreme Court
On January
6, 2009, the Washington Supreme Court granted review in the
following cases:
Felony Harassment. State v. Schaler,
No. 81864-9. Okanogan County. COA opinion is reported at 145
Wn. App. 628 (2008). Whether the jury must receive an instruction
defining "true threats."
Non-Parental Custody Action. In re the
Custody of Wilson, No. 81945-9. COA opinion is reported at 144
Wn. App. 865 (2008).
U.C.C. and Letters of Credit. Alhadeff v.
Meridian on Bainbridge Island, LLC, No. 81833-9. COA opinion is
reported at 144 Wn. App. 928 (2008).
Reimbursement from Third Party. Tobin v.
Dep’t of Labor & Indus., No. 81946-7. Review taken of issues
raised by both the petitioner and the respondent. COA opinion is
reported at 145 Wn. App. 607 (2008).
Unlawful Detainer and Lease Defaults.
Eastwood, dba Double KK Farm v.
Horse Harbor Found., Inc., No. 81977-7. COA opinion is
unpublished.
Code Enforcement at a Mobile Home Park.
Lawson v. City of Pasco, No. 81636-. COA opinion is reported at
144 Wn. App. 203 (2008).
Condominium Ownership.
Lake v. Woodcreek Homeowners Ass’n,
No. 81873-8. COA opinion is reported at 142 Wn. App. 356 (2007).
Division Two
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
Washington Supreme Court
Physical Control. Actual physical control
is an included offense of DUI.
State v. Nguyen, No.
80752-3 (Dec. 31, 2008).
Division One
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).]
Division Two
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).
Division Three
Ninth Circuit |