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WEEKLY ROUNDUP FOR JULY 30, 2010

Lethal Injection. The Department of Corrections's authorship of the protocol governing lethal injection is permitted by a legislative delegation of powers arising from RCW 10.95.180(1) and related provisions. The Court declines to grant a declaratory judgment on whether DOC’s handling of the substances necessary for lethal injection violates the state and federal controlled substances acts, chapter 69.50 RCW, Washington's Uniform Controlled Substances Act (UCSA), and 21 U.S.C. §§ 801-971, the federal Drug Abuse Prevention and Control Act (DAPCA). The constitutional challenge to the three-drug protocol is dismissed as moot. Brown v. Vail, No. 83474-1 (Jul. 29, 2010).

True Threats. The harassment statute must be read to proscribe only "true threats", and the jury must be instructed that the defendant knew or foresaw that the person threatened (or, for that matter, any listener) would reasonably fear that the threat will be carried out. State v. Schaler, No. 81864-9 (July 29, 2010). Justice Sanders agreed that the jury instructions were in error, but he would have dismissed the charges. See Concurring/Dissenting opinion. Justice Jim Johnson dissents on the grounds that any error was harmless and/or invited by the defendant.

Child Sex Abuse. Federal law, specifically the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act),does not preempt Washington's criminal discovery rules. Thus, subject to an appropriate protective order, the State must obtain possession of photographs or images that are in the hands of federal officers, for the use of the defendant’s counsel, in defendant the defendant on child pornography, child rape, and child molestation charges. Because the state courts have no direct power to compel federal actors to produce the evidence, the trial court may exclude any evidence to which the defense attorney had limited pre-trial access. State v. Norris, COA No. 37842-6-II (Jul. 27, 2010).

Lesser Included Offense Instructions. Although disavowing, once again, that the court has not established a rule that pursuing an all-or-nothing strategy is per se defective performance or ineffective assistance of counsel, the court indicates that in a third"most serious offense" trial, an all-or-nothing approach will not be considered reasonable trial strategy unless the lesser included offense would result in a similarly lengthy sentence or the defendant has reached an advanced age or contracted a terminal illness. In the instant case, the court finds a reasonable probability that the jury may have convicted the defendant of the offense of unlawful display of a weapon instead of attempted second degree assault. In re Personal Restraint of Crace, COA No. 37806-0-II (Jul. 28, 2010).

Juror Misconduct. A potential juror’s failure to volunteer that she saw the defendant restrained in the hallway, does not entitle the defendant to a new trial. In re Personal Restraint of Crace, COA No. 37806-0-II (Jul. 28, 2010).

Public Records Act. An individual who has forfeited his right to vote by having been convicted of a felony has standing to request documents under the PRA. A trial court may, however, consider a PRA requestor's explicit and volunteered threat when deciding whether to grant a government employee's personal request for an injunction. An individual's identification badge photograph is not exempt from disclosure under the privacy exemption because it is not the type of intimate, personal information the PRA intended to protect. Finally, the PRA does not create a substantive liberty right. Parmelee v. Mathieu, COA No. 35469-1-II (Jul. 29, 2010).

Americans With Disabilities Act. A police department may require a fitness for duty exam of an officer, who has displayed unusually defensive and antagonistic behavior towards co-workers and supervisors without violating the ADA. Brownfield v. City of Yakima, No. 09-35628 (9th Cir. Jul. 27, 2010).

WEEKLY ROUNDUP FOR JULY 23, 2010

Duress. An implicit threat is sufficient to support a defendant’s request to have the jury instructed on the affirmative defense of duress. State v. Harvill, No. 82358-8 (July 22, 2010).

Interfering With the Reporting of Domestic Violence. A charging document that alleges interfering with domestic violence reporting in violation of RCW 9A.36.150, that contains the phrase "having committed a crime of domestic violence as defined in RCW 10.99.020" instead of identifying the specific underlying crime, will survive a post-trial challenge to the constitutional sufficiency of the information, when other counts in the same information separately allege domestic violence offenses. State v. Nonog, No. 82094-5 (July 22, 2010). [Editor’s note: The Court did not resolve the split between the Divisions as to whether the specific underlying crime of domestic violence must be included in the count.]

Canine Sniffs. Const. art. I, § 7 is not violated when a canine standing outside a suspect vehicle detects a substance that is located within the vehicle. State v. Hartzell, COA No. 63816-5-I (Jul. 19, 2010).

ER 404(b). Evidence that linked the defendants to two firearm offenses committed in other jurisdictions was proper to establish their identity as the shooters in the charged offense. State v. Hartzell, COA No. 63816-5-I (Jul. 19, 2010).

Open the Door. A criminal defendant can open the door to otherwise inadmissible testimonial hearsay statements. State v. Hartzell, COA No. 63816-5-I (Jul. 19, 2010).

Limiting Instructions. A limiting instruction that informs a jury is "may" consider evidence for a certain purpose is permissive and does not constitute a comment on the evidence. State v. Hartzell, COA No. 63816-5-I (Jul. 19, 2010).

Making a False or Misleading Material Statement to a Police Officer. The offense of refusing to give a name or address or giving a false name or address in violation of RCW 46.61.020, is not concurrent with the offense of knowingly making a false or misleading material statement to a police officer in violation of RCW 9A.76.175, allowing charges to be brought under either statute when a driver knowingly gives a police officer a false name. State v. Ou, COA No. 63454-2-I (Jul. 19, 2010).

Public Trial. Criminal defendant is entitled to a new trial because the court questioned some jurors in chambers after the prosecuting attorney and the defense counsel responded to the judge’s question of "Does either party have an objection to allowing jurors to take up sensitive issues, sensitive questions, in chambers if they feel that that would be beneficial to them?" with a negative. This was insufficient to constitute a waiver of the defendant’s right to a public trial because: (1) the trial court, not defense counsel, proposed individual in-chambers voir dire of jury pool members; (2) defense counsel did not actively participate in the in-chambers voir dire; the trial court judge asked all the questions and only asked the attorneys whether they wanted to inquire further or objected to the excusing of jurors; (3) the record does not indicate circumstances requiring individual questioning of jurors in chambers, as opposed to another public location; and (4) the record contains no indication that either the court or the parties considered the defendant’s right to a public trial or explained that right to him. State v. Bowen, COA No. 39096-5-II (Jul. 20, 2010).

Criminal Mistreatment. (1) The first degree criminal mistreatment statute contains alternative means of committing the offense. A jury need not be unanimous as to which means, provided sufficient evidence supports each of the alternative means that appears in the "to convict" instruction. (2) It is a defense to the recklessness element of criminal mistreatment that the defendant acted reasonably in withholding medical care in light of the diabetic 86-year-old man, who has some form of mental deterioration’s past wishes to not receive medical care. The WPIC definition of "recklessness" is insufficient to allow the jury to consider this "subjective belief" theory. (3) A defendant, whose defense for criminal mistreatment for failing to obtain medical treatment for a a diabetic 86-year-old man with some form of mental deterioration, was that the victim had expressed an unwillingness to receive medical treatment in the past, is entitled to a jury instruction that informed the jury that forcing medical care upon an unwilling patient constitutes an assault. State v. Koch, COA No. 38429-9-II (Jul. 20, 2010). Judge Quinn-Brintnall dissented.

Frisk. The trooper had objectively valid reasons for frisking the defendant after stopping the vehicle in which the defendant was a passenger for speeding. Specifically, the defendant’s furtive movements during the time the driver was refusing to comply with the order to stop her vehicle, his evasive and deceptive responses when asked what he was doing at that time, the peculiar way he opened the door with his left hand, and the way he kept his right hand near and reached for his right coat pocket when he got out of the vehicle, would justify an experienced law enforcement officer’s belief that the defendant was armed and dangerous. United States v. Burkett, No. 09-30260 (9th Cir. Jul. 20, 2010).

Tenth Circuit

Prosecutorial Immunity. A prosecutor is not entitled to absolute immunity when reviewing an affidavit in support of a search warrant. A prosecutor may, however, be entitled to qualified immunity if qualified immunity if she reasonably concluded probable cause existed to support the warrant application. Qualified immunity did not exist in the instant case because the search warrant failed the particularity requirement. Mink v. Knox, No. 09-1250 (10th Cir. Jul. 19, 2010).

WEEKLY ROUNDUP FOR JULY 16, 2010

Escape. An information for escape that contained the phrase "contrary to the form of the Statute . . . and against the peace and dignity of the State of Washington", but that did not expressly allege the knowledge element was defective. Vacation of the conviction and dismissal without prejudice is required, despite the absence of any prejudice. State v. Brown, No. 84083-1 (Jul. 15, 2010).

Statute of Limitations. "A criminal statute of limitations is jurisdictional and creates an absolute bar to prosecution if charges are not timely filed." Only relocations to another state, rather than temporary absences, will toll the statute of limitations. State v. Willingham, No. 84036-9 (Jul. 15, 2010).

ER 615. The trial judge abused its discretion by excluding a defense witness based upon the judge’s overhearing a discussion in which the defense witness told the defendant what she intended to testify about. The judge failed to conduct a hearing regarding the circumstances of the interaction, so there is no evidence to support a finding that ER 615 was violated. State v. Skuza, COA No. 38042-1-II (Jul. 14, 2010).

Persistent Offender Accountability Act. A superior court conviction for an offense that was committed when the defendant was 15 years old, counted as a "strike" where the defendant stipulated to the waiver of juvenile court jurisdiction. State v. Saenz, COA No. 27683-0-III (July 13, 2010).

Gang Testimony and Witness Intimidation. The trial court did not abuse its discretion by admitting evidence of gang affiliation and witness intimidation. State v. Saenz, COA No. 27683-0-III (July 13, 2010).

Ethics in Public Service Act. An e-mail sent by a college teacher from a community college computer that encouraged recipients to urge state legislators to approve two bills that would provide tenure-like protections for part-time college teachers violated the statutes prohibiting the use of state resources for private gain and lobbying. Knudsen v. Washington State Executive Ethics Board, COA No. 26680-0-III (July 13, 2010).

Second Amendment and Domestic Violence. The Second Amendment permits the federal categorical prohibition on the possession of guns by persons previously convicted of a domestic violence misdemeanor. United States v. Skoien, No. 08-3770 (7th Cir. Jul. 13, 2010).

On Tuesday, July 6, 2010, the Washington Supreme Court granted review of the following cases:

Violation of No Contact Orders. The placement of the legend required by RCW 10.99.040(4)(b) on the reverse side of a no contact order is adequate under the statute, and such an order will support a criminal charge for violating the no contact order. The better practice, however, would be for the front of the no contact order to contain a reference calling attention to the warnings on the reverse side. State v. Turner, COA No. 63147-1-I (Jul. 6, 2010).

Zoning. A boundary line adjustment did not change the zoning on the subject property from Commercial Forest Land (CFL) to Low Density Rural Residential (LDRR). Stafne v. Snohomish County, COA No. 62843-7-I (May 24, 2010, publication ordered Jul. 6, 2010).

Friends of Cedar Park Neighborhood v. City of Seattle, COA No. 63338-4-I (May 17, 2010, publication ordered Jul. 6, 2010).

Credit for Time Served. Defendant not entitled to credit for the two years he was subject to conditions of release pending trial, as a curfew, week-day reporting requirement, and minor travel restrictions were not the equivalent of "home detention" or "house arrest." State v. Dockens, COA No. 38873-1-II (Jul. 9, 2010).

Growth Management Act. The Board erred when it used bright line rules to find that

the reduced urban density, the land capacity analysis, and the Rural Wooded Incentive Program's

rural density component complied with the GMA. Substantial evidence does not support the Board's decision that the existing design standards in KCC 17.301.080 protect rural character. The Board did not decide all of the relevant issues that the Citizens raised; thus, requiring a remand to the Board to decide all remaining relevant issues, including those regarding the reduction in urban density, the use of minimum density in the land capacity analysis, preservation of rural character, and the local circumstances supporting the goal harmonizing document. Suquamish Tribe v. Central Puget Sound Growth Management Hearings Board, COA No. 39017-5-II (Jul. 7, 2010).

Pro Se Criminal Defendants. A trial court judge may not deny a competent defendant, who is adamant in his desire to represent himself by asserting an absurd legal theory wrapped up in Uniform Commercial Code gibberish, the right of self-representation. Once granted, the right to self-representation need not be terminated for "wacky" behavior. United States v. Johnson, No. 08-10147 (9th Cir. Jul. 6, 2010).

United States Supreme Court

Gun Rights. The Second Amendment applies to state and local governments, but the right is not absolute:

McDonald v. Chicago, No. 08-1521 (Jun. 28, 2010).

Search of Vehicles Incident to Arrest. The presence of an unsecured and unarrested vehicle occupant will not authorize a search of a vehicle incident to the arrest of another occupant. The good faith exception to the exclusionary rule "is incompatible with the nearly categorical exclusionary rule under article I, section 7." State v. Afana, No. 82600-5 (Jul. 1, 2010). Justice Jim Johnson authored a concurring opinion that reminds officers and attorneys that a frisk of the vehicle would have been permissible if the officers had objective reasons to believe that the unsecured occupant was armed or dangerous.

School Zone Enhancements. Admission of results from a distance measuring device requires a showing that the particular device was functioning properly and produced accurate results. Generally, this can be accomplished by comparing results generated by the device on a known distance or evidence that the device has been inspected or calibrated. State v. Bashaw, No. 81633-6 (Jul. 1, 2010). Chief Justice Madsen authored a dissenting opinion.

Special Verdict Forms. When a jury has unanimously found a defendant guilty of a substantive crime and proceeds to make an additional finding that would increase the defendant's sentence beyond the maximum penalty allowed by the guidelines, the jury’s answer need not be unanimous in order to be final. A non-unanimous jury decision on such a special finding is a final determination that the State has not proved that finding beyond a reasonable doubt. It is error to instruct the jury that they must be unanimous in order to answer "no" to a special verdict form. State v. Bashaw, No. 81633-6 (Jul. 1, 2010). Chief Justice Madsen authored a dissenting opinion.

[Editor’s note: Compliance with this opinion will require that WPIC 160.00 be edited as follows:

Felony DUI. Under former RCW 46.61.5055(14)(a) , the driver must already have four prior DUI-related convictions at the time of the driving event giving rise to the current charge in order to have committed a felony offense. State v. Castle, COA No. 63627-8-I (Jun. 28, 2010).

Juries. To be constitutionally qualified for jury service, a prospective juror must reside in the county wherein the offense is alleged to have been committed. When a city is located in two counties, jurors must be chosen solely from the county in which the offense occurred. City of Bothell v. Barnhart, COA No. 63494-1-I (Jun. 28, 2010).

Rape and Double Jeopardy. When there are multiple incidents in an identical charging period, the State must ensure that the "to convict" instruction requires the jury to find "a separate and distinct incident in count ___, then was found in counts __, __, and ___." The failure to do so will result in the dismissal of all but one charge on appeal. State v. Carter, COA No. 38264-4-II (Jun. 29, 2010).

Drug Sentencing. Unlawful possession of a firearm and unlawful delivery of a controlled substance while armed with a firearm are not the "same criminal conduct". When both offenses are present, the firearm sentencing enhancement must be applied to the delivery charge, and both offenses must be included in the offender score. A prior unlawful possession of a controlled substance conviction is sufficient to double the statutory maximum for a current unlawful delivery charge. The prior conviction need not be pled in the complaint and proved to the jury. A jury verdict that the defendant was "armed with a firearm" is sufficient to raise a delivery of cocaine with a deadly weapon enhancement to a level III drug offense, as every firearm is a "deadly weapon." State v. McGrew, COA No. 37928-7-II (Jun. 29, 2010).

Gant. A defendant may not raise a challenge to a search of a vehicle for the first time on appeal when the defendant indicates an intention in the trial court to file a motion to suppress evidence, but then never files such a motion. If a Gant challenge is raised for the first time on appeal and an appellate court is willing to consider such a challenge, the appropriate remedy is to remand the matter to the trial court for a fact-finding suppression hearing. State v. Cross, COA No. 38498-1-II (Jun. 29, 2010). Judge Houghton dissents on the search incident to arrest issue.

Harassment. The State is not required to prove a "nonconditional present threat" in a gross misdemeanor harassment prosecution. A conditional threat to a police officer, from an arrested person, that "if he wasn’t handcuffed, he would kick the officer’s ass", is sufficient under the facts of this case. State v. Cross, COA No. 38498-1-II (Jun. 29, 2010).

Wash-Out. "We hold that for purposes of applying the Sentencing Reform Act's (SRA), ch. 9.94A RCW, wash-out provisions, a DISCIS printout, which is a document generated using the Judicial Information System (JIS), satisfies the State's burden of proving prior misdemeanor convictions by a preponderance of the evidence." State v. Cross, COA No. 38498-1-II (Jun. 29, 2010).

WEEKLY ROUNDUP FOR JUNE 25, 2010

Pornography. When the unit of prosecution for the offense of possession of child pornography is per possession, evidence that a defendant simultaneously possessed multiple images of child pornography does not constitute evidence of multiple acts of possession, making a Petrich unanimity instruction unnecessary. State v. Furseth, COA No. 63759-2-I (Jun. 21, 2010).

Public Records Act. The one-year statute of limitations within which to bring an action under the Public Records Act (PRA), chapter 42.56 RCW, is not triggered by an agency tendering a redacted document without an accompanying claim of exemption, what the agency believes is all the responsive documents in its possession, or a statement that no responsive documents were found. Tobin v. Worden, COA No. 60929-7-I (Jun. 21, 2010).

Permissible Closing Arguments. This case illustrates how to properly argue credibility to a jury. State v. Larios-Lopez, COA No. 39194-5-II (May 4, 2010, publication ordered Jun. 22, 2010).

Booking Costs. A county that contracts for juvenile detention services at an out-of-county and remote facility, may require that a city police agency pay the booking fees at a local out-of-county facility if the city chooses not to transport juvenile detainees to the remote location where the detainees may be booked at no cost to the city. City of East Wenatchee v. Douglas County, COA No. 28580-4-III (Jun. 22, 2010).

WEEKLY ROUNDUP FOR JUNE 18, 2010

Privacy of Government Employee’s Electronic Communications. Assuming that: (1) a government employee has a reasonable privacy expectation in messages sent on an employer provided communication device; (2) the employer’s review of a transcript of the messages constituted a Fourth Amendment search; and (3) the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere, the Court holds that a warrantless review of the employee’s pager transcript was reasonable because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. The non-investigatory work-related purpose was to determine whether the City’s contractual character limit was sufficient to meet the City’s needs. Reviewing the transcripts was an efficient and expedient way to determine whether the City was paying for extensive personal communications or whether employees were being forced to pay out of their own pockets for work-related expenses. City of Ontario v. Quon, No. 08-1332 (Jun. 17, 2010).

Interpreter Services. A nonindigent limited English proficiency (LEP) individuals' statutory right to government-paid interpreter services under chapter 2.43 RCW is triggered when a government agency initiates a legal proceeding involving the LEP. However, if a government agency, in its discretion, appoints an interpreter to assist an LEP party at an appeal hearing, chapter 2.43 RCW requires the government agency to permit the interpreter to translate whenever necessary to assist the LEP individual at the hearing. This provision of interpreter services at a hearing does not depend on indigency nor does it extend beyond the hearing itself. Kustura v. Department of L&I, No. 81478-3 (Jun. 17, 2010). Justice Chambers dissented.

Access to Evidence. When a protective order that limited access to the defendant’s computer prevented a defendant from obtaining expert assistance in a child pornography case, the conviction must be vacated unless the properly admitted evidence is so overwhelming as to necessarily lead to a finding of guilt. State v. Grenning, No. 81449-0 (Jun. 17, 2010). Chief Justice Madsen authored a dissenting opinion. [Editor’s note: compliance with the majority’s rule will require the prosecution to turn over a mirror image of the defendant’s hard drive.]

Rape Prosecutions. Under a traditional ER 404(b) test, the trial court properly admitted evidence of a 1995 rape in a prosecution for 1998 rapes. The absence of a limiting instruction was not error as the defendant never requested one and the prosecutor gave an oral limiting instruction during her closing argument. ("The prosecutor cautioned the jury that evidence of prior convictions should not be used to decide that a defendant is a "bad seed," but may only be considered if the prior bad acts had such striking similarities that they showed a common scheme or plan."). The second degree assault charge for strangling the victim merges with the first degree rape conviction, as the assault was used to effectuate the rape. Prior convictions need not be pled in the information and proved to a jury in persistent offender cases. State v. Williams, COA No. 27924-3-III (Jun. 15, 2010).

Rapid Recidivism. The rapid recidivism factor does not apply to an attempting to elude offense committed six months after release from incarceration. State v. Combs, COA No. 28370-4-III (Jun. 17, 2010).

Tasers. The use of a taser against a seatbelt violator, who was only passively resisting, was excessive. Bryan v. MacPherson, No. 08-55622 (9th Cir. Jun. 18, 2010).

WEEKLY ROUNDUP FOR JUNE 11, 2010

Legal Financial Obligations. Due process requires the court to inquire into a defendant’s reason for nonpayment of LFOs at the time of the collection action or sanction. A court may not order a defendant to report to jail for non-payment of LFOs without a contemporaneous inquiry into his ability to pay. A jail sentence imposed for nonpayment of LFOs should not be credited against the balance of the defendant’s LFOs. State v. Nason, No. 82333-2 (Jun. 10, 2010).

Revocation of Juvenile Deferred Dispositions. A trial court may revoke a deferred disposition for failure to pay restitution, when the revocation motion is filed prior to the expiration of the supervisory period. A juvenile probation officer’s written report is sufficient to provide the offender with notice of the grounds for the revocation. The offender bears the burden of proving that her inability to pay was not willful. State v. N.S.T., COA No. 62934-4-I (Jun. 7, 2010).

Dismissal of Juror. The trial court did not abuse its discretion by removing a juror after deliberations began, when the juror indicated that she could not be fair and she asked to be removed. Trial court properly refrained from asking the specific basis for the juror’s change of position on being able to deliberate on the evidence fairly and impartially for both parties, as such an inquiry would have improperly intruded upon the jury’s deliberations. State v. Hopkins, COA No. 38265-2-II (Jun. 8, 2010).

Interlocutory Discretionary Review. Explaining when review under RAP 2.3(b) is appropriate, and suggesting that all such motions "argue with specificity (1) the criteria they are relying on, (2) why the challenged ruling was sufficiently erroneous to meet the applicable rule criterion, and (3) how that error established the relevant harm threshold." Minehart v. Morning Star Boys Ranch, Inc., No. 28981-8-III (Jun. 8, 2010).

WEEKLY ROUNDUP FOR JUNE 4, 2010

Miranda Waivers. A suspect’s Miranda right of silence must be invoked "unambiguously." If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation or ask questions to clarify the accused’s intent. After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights. Berghuis v. Thompkins, No. 08-1470 (Jun. 1, 2010).

Sex Offender Notification. The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect. This decision was based upon statutory text and not the ex post facto clause. Carr v. United States, No. 08-1301 (Jun. 1, 2010).

On Tuesday, June 1, 2010, the Washington Supreme Court accepted review of the following cases:

RCW 10.58.090. State v. Gresham, No. 84148-9 (Snohomish County) and State v. Scherner, No. 84150-1 (King County). COA opinions reported at 153 Wn. App. 659 (2009) and at 153 Wn. App. 621 (2009). Whether RCW 10.58.090 violates separation of powers, due process, equal protection, or ex post facto. Division One briefs available on line: Gresham Appellant Brief; Gresham Respondent Brief; Scherner Respondent Brief; Scherner Reply Brief.

Sexually Violent Predators. In re Det. of Danforth, No. 84152-7. COA opinion reported at 153 Wn. App. 833 (2009). Whether the State established a recent overt act in a case in which the offender, who had a criminal history of sexually assaulting minor boys and who was living in the community, voluntarily requested to be civilly committed? Division One briefs available on line: Respondent Brief and Reply Brief.

Public Records Act. Neighborhood Alliance of Spokane County v. County of Spokane, No. 84108-0. COA opinion reported at 153 Wn. App. 241 (2009). Whether the County conducted an adequate search for responsive documents, when it failed to search all of the computers on which the information or documents likely resided at the time the disclosure request was made?

Duty to Protect. Kaltreider v. Lake Chelan Cmty. Hosp., No. 84144-6. COA opinion is reported at 153 Wn. App. 762 (2009). Whether a hospital has a duty to protect a non-disabled person from engaging in consensual sexual acts with a nurse?

Employment Law. Federal Way Sch. Dist. No. 210 v. Vinson, No. 84243-4. COA opinion reported at 154 Wn. App. 220 (2010). Whether a teacher’s dishonesty, during an investigation of alleged harassment and retaliation, is adequate grounds for termination?

Distribution of Property. Bank of Am. v. Owens, No. 84044-0. COA opinion reported at 153 Wn. App. 115 (2009). Should the husband’s lien, created by a dissolution decree, be given priority over the bank’s lien?

62862-3-I 84148-9

Grant and consolidate with

62507-1-I 84150-1 State v. Scherner

Grant and consolidate with State v. Gresham #84148-9

LUPA. The failure to challenge the city's approval of a temporary use agreement that permitted a church to use its property to host a homeless encampment in a timely LUPA petiition bars the appellant’s due process claims, including its claims for damages under 42 U.S.C. § 1983. Mercer Island Citizens for Fair Process v. Tent City 4, COA No. 63504-2-I (Jun. 1, 2010).

Closing Argument. It is not improper for a prosecutor to ask the jury to decide whether they believed the defendant’s testimony or the testimony of another witness. State v. Lewis, COA No. 38523-6-II (Mar. 2, 2010, publication ordered Jun. 2, 2010).

Search of Person Incident to Arrest. Gant does not alter the rules governing a search of a person incident to arrest. Such a search is not limited to evidence of the crime of arrest. State v. Whitney, COA No. 28243-1-III (Jun. 3, 2010).

WEEKLY ROUNDUP FOR MAY 28, 2010

Private Prosecutors. The Supreme Court dismissed this case, which dealt with whether the victim of a crime is able to prosecute criminally the violation of a domestic violence restraining order, as improvidently granted. Chief Justice Roberts, joined by Justices Scalia, Kennedy, and Sotomayor, issued a dissent that prosecutors will want to cite when responding to requests for citizen complaints pursuant to CrRLJ 2.1(c). Robertson v. Watson, No. 08-6261 (May 24, 2010). [Editor’s note: WAPA has extensive briefing regarding the unconstitutionality of CrRLJ 2.1(c)).

Sentencing Factors. In a case that deals with whether the government must plead and prove that the defendant used a machine gun during an offense, the Court gives the following guidance: "Sentencing factors traditionally involve characteristics of the offender - such as recidivism, cooperation with law enforcement, or acceptance of responsibility. . . . Characteristics of the offense itself are traditionally treated as elements. . ." (citations omitted.). United States v. O’Brien, No. 08-1569 (May 24, 2010).

DOSA Revocations. For DOC to lawfully reclassify an offender for imprisonment for a violation of an "obey all laws" condition of community custody, the notice must allege the facts and legal elements that DOC would have to prove to show an offender did not obey all laws. Although a notice may state the elements, a citation to the statute suffices if the statute includes all of the elements. If the statute does not include all of the elements, the notice must indicate the nonstatutory elements that would render the offender's conduct unlawful. In Re PRP of Blackburn, No. 82329-4 (May 27, 2010).

Presumption of Innocence. Holding a murder trial in a jailhouse courtroom violated the defendant’s right to due process by eroding the presumption of innocence. State v. Jaime, No. 82008-2 (May 27, 2010). Justice Sanders concurred on the jailhouse courtroom issue, but would also reverse because the trial judge excluded expert testimony on eyewitness identification. Justice Alexander authored a separate concurrence in order to respond to Justice Jim Johnson’s dissenting opinion. Justice Fairhurst also authored a dissenting opinion.

Discovery. A prosecutor's awareness that a federal agency was conducting video surveillance of the defendant’s residence must be disclosed under CrR 4.7, regardless of whether the defense requested such information and regardless of whether the prosecutor thought the information was material. State v. Krenik, COA No. 64913-2-I (May 24, 2010).

Sexually Violent Predators. The State is not required to prove a SVP’s violation of the conditions of a less restrictive alternative placement were willful, before revoking the less restrictive alternative. In re Detention of Wrathall, COA No. 63143-8-I (Mar. 22, 2010, publication ordered May 24, 2010).

Open Courts. The trial court need not make a finding of compelling interest justifying the sealing of confidential documents that were filed with the court under seal in connection with a motion for summary judgment, when the case settled before the trial court judge ever considered the summary judgment action. Clark v. Britton, COA No. 62824-1-I (May 24, 2010).

Suppression of Evidence. Defendant waived her claim that evidence discovered in a warrantless search of her vehicle should be suppressed pursuant to Gant by not challenging the search in the trial court. Trial counsel was not ineffective for failing to anticipate the Gant decision. State v. Pearsall, COA No. 38659-3-II (May 25, 2010). Judge Houghton dissented.

Exceptional Sentences. The "free crimes" basis for an exceptional sentence does not require a jury determination, as the statutory factor does not include a "clearly too lenient" requirement. The other factors in RCW 9.94A.535(2), that do contain the "clearly too lenient" requirement, may not be submitted to a jury under the current statutory language. State v. McNeal, COA No. 38014-5-II (May 25, 2010).

Defendant as Witness. A defendant’s waiver of his Fifth Amendment rights by taking the stand at his trial extends only to cross-examination. Such cross-examination is limited to the scope of the defendant's direct testimony. The State may not call a defendant to the stand in the State’s rebuttal case, in order to question the defendant about matters beyond the scope of the defendant’s direct testimony. State v. Epefanio, COA No. 27578-7-III (May 27, 2010).

Violation of the Attorney/Client Privilege. The dismissal of charges was upheld because officers, when executing a search warrant, removed documents that the defendant claimed had been prepared at the direction of his attorney with respect to the attorney’s representation of the defendant on any anticipated criminal charges. The officers copied the materials, read them, and prepared an analysis of the materials for the prosecutor. State v. Perrow, COA No. 27894-8-III (May 25, 2010). Judge Korsmo dissented. [Editor’s note: When officers are confronted with a claim that seized items are protected by the attorney/client privilege, the officers should place the disputed documents, unread, into an envelop, seal the envelop, and then have the envelop brought to the court for review by either the judge who issued the subpoena or a special master.]

False Confession? The concurring opinion in this habeas corpus action finds that trial counsel’s decision to not call Richard Ofshe as a witness was deficient performance. The decision was based upon trial counsel’s belief that Ofshe’s testimony would not satisfy Frye/Kelly. Lunberry v. Hornbeak, No. 08-17576 (9th Cir. May 25, 2010).

WEEKLY ROUNDUP FOR MAY 21, 2010

Eighth Amendment. It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on "cruel and unusual" punishment. Graham v. Florida, No. 08-7412 (May 17, 2010).

Right to Public Trials. An in-chambers conference held by the trial judge in response to a question the jury submitted during its deliberations did not violate the defendant’s his right to an open and public trial or the defendant’s right to be present. In general, in-chambers conferences between the court and counsel on legal matters are not critical stages of the proceedings except when the issues involve disputed facts. State v. Sublett, COA No. 38034-0-II (May 18, 2010).

Comparability of Offenses. California second degree robbery convictions pursuant to California Penal Code section 211, are comparable to Washington’s second degree robbery. State v. Sublett, COA No. 38034-0-II (May 18, 2010).

Specific Performance. State v. Miller, 110 Wn.2d 528, 536, 756 P.2d 122 (1988), gives the trial court authority to enforce terms of a plea agreement that violate RCW 9.94A.507 (determinate-plus provision). The Miller rule does not violate separation of powers, and its application in the determinate-plus context does not work an injustice, simply because it can detrimentally affect DOC’s ability to protect the public from future sex offenders. In re Post Sentence Review of Hudgens, COA No. 28423-9-III (May 20, 2010).

Confrontation Rights. The admission of hearsay statements at a preliminary hearing to determine probable cause does not not violate the Fourth, Sixth, or Fourteenth Amendments. Peterson v. California, No. 09-15633 (9th Cir. May 17, 2010).

WEEKLY ROUNDUP FOR MAY 14, 2010

Public Records Act. The requester of public records must be joined pursuant to CR 19 to any action seeking to enjoin the release of the requested documents. Burt v. Department of Corrections, No. 80998-4 (May 13, 2010). Justice Sanders authored a concurring opinion in which he argues that prisoners should enjoy equal access under the Public Records Act. Justice Alexander authored the dissenting opinion.

Truthfulness Provisions in Plea Agreements. Irrelevant and prejudicial statements should be redacted from immunity or plea agreements upon request. A declaration of the State's intent in entering a plea agreement is to "secure" truthful testimony constitutes improper vouching. State v. Coleman, COA No. 64923-0-I (May 10, 2010).

Development Charges. RCW 82.02.020, which prohibits local governments from imposing direct or indirect taxes, fees, or charges on development, does not apply to a shoreline master programs (SMPs) developed pursuant to the Shoreline Management Act of 1971, because of the pervasive level of state involvement in and control over the entire SMP process. Citizens for Rational Shoreline Planning v. Whatcom County, COA No. 63646-4-I (May 10, 2010).

Diminished Capacity. Intoxication and/or diminished capacity do not add an additional element to a crime, and there is no need to instruct the jury that the State must disprove diminished capacity or intoxication beyond a reasonable doubt. State v. Sao, COA No. 38164-8-II (May 11, 2010).

Social Contact. An officer’s request for identification from a passenger in a vehicle that is parked in a handicapped spot was a social contact, where the officer parked his patrol car 10 to 15 feet away, did not activate the patrol car’s lights, and did not request that the passenger step out of the parked vehicle until the officer confirmed the existence of an arrest warrant. State v. Johnson, COA No. 38540-6-II (May 11, 2010).

Double Jeopardy. Neither double jeopardy nor collateral estoppel barred the defendant’s retrial for possession of two stolen firearms, when the jury in the first case acquitted the defendant of the possession of two other stolen firearms, but hung with respect to these two stolen firearms. State v. McPhee, COA No. 37610-5-II (May 11, 2010).

Failure to Register as a Sex Offender. The double jeopardy clause prohibits charging a defendant who was acquitted for failing to register during one 90 day period, with a separate count of failing to register for a different 90 day period. The State may file another charge for new failure to register conduct, only when the continuing course of conduct of a prior failure to register has ended. State v. Green, COA No. 38893-6-II (May 11, 2010). Judge Hunt dissented.

Public Records Act. The County was properly ordered to pay the requester’s attorney’s fees and costs, and a PRA penalty, where the County withheld the employees’ towns of residence while various employee guilds and the PRA requester litigated whether the towns of residence were exempt from disclosure under exempt from disclosure under RCW 42.56.250(3) and RCW 42.56.050. Kitsap County Prosecuting Attorney’s Guild v. Kitsap County, COA No. 39196-1-II (May 11, 2010).

Sexually Violent Predators. The fact that a detainee’s schizophrenia is controlled by medication does not require a full evidentiary hearing where the detainee’s antisocial personality disorder was the "mental abnormality" forming the basis of his commitment. In re Detention of McGary, COA No. 38257-1-II (Mar. 23, 2010, publication ordered May 11, 2010).

Treaty Fishing. The State lacks criminal jurisdiction over an enrolled member of the Yakama Nation for fishing violations allegedly occurring at the Maryhill Treaty Fishing Access Site. State v. Jim, COA No. 28079-9-III (May 11, 2010).

Rendering Criminal Assistance. A defendant’s failure to name the assailants, who shot the defendant and who killed another person in the defendant’s presence, is sufficient to support a conviction of rendering criminal assistance when the defendant knew the identity of the assailants. State v. Budik, COA No. 27547-7-III (May 13, 2010).

WEEKLY ROUNDUP FOR MAY 7, 2010

Libraries and the Internet. Const. art. I, § 5 protects the right to receive information and ideas. Nonetheless, a library can filter Internet access for all patrons, including adults, without violating art. I, § 5, so long as the library has a procedure by which to unblock erroneously blocked sites. Bradburn v. N.Central Regional Library District, No. 82200-0 (May 6, 2010). Justice Jim Johnson authored a concurring opinion. Justice Tom Chambers authored a dissenting opinion.

Firearms and Felons. Individuals, if they comply with the other requirements for restoration of the right, are eligible to own or possess firearms under RCW 9.41.040 if they were convicted of vehicular homicide before the 1996 legislative reclassification of that crime from a class B to a class A felony. An individual convicted of a class B felony, with no prior disabling offenses may have the right restored after a mere five year crime-free period in the community. Rivard v. State, No. 82431-2 (May 6, 2010)

Offender Score. A defendant's mere failure to object to the State's assertion of criminal history is not an affirmative acknowledgment amounting to a waiver of criminal history sentencing error. State v. Lucero, No. 83777-5 (May 6, 2010).

Sex Offender Registration. Failure to register as a sex offender is not an alternative means crime. The elements of the crime do not include a registrant's particular residential status. State v. Peterson, No. 82089-9 (May 6, 2010)

Blakely and Consecutive Sentences. An exceptional sentence, in the form of consecutive terms, does not require a jury finding of an aggravating circumstance. State v. Vance, No. 81393-1 (May 6, 2010).

WEEKLY ROUNDUP FOR APRIL 30, 2010

On Tuesday, April 27, 2010, the Washington Supreme Court granted review of the following cases:

Firearm Enhancements. A firearm enhancement requires proof that the weapon used during the commission of the crimes was operable and capable of firing a projectile. State v. Pierce, COA No. 38377-2-II (Apr. 27, 2010).

Pro Se. The trial court abused its discretion by denying the defendant’s request to proceed pro se, as the motion was made prior to the jury being sworn in and was not accompanied by a motion for a continuance. State v. Paumier, COA No. 36346-1-II (Apr. 27, 2010).

Open Courts. A review of Momah, Strode, and Presley v. Georgia, 130 S. Ct. 721 (2010), establishes that the failure to make Bone-Club findings prior to questioning individual jurors in chambers requires reversal of the conviction. State v. Paumier, COA No. 36346-1-II (Apr. 27, 2010). Judge Quinn-Brintnall dissented.

Nicknames. Murder conviction reversed because the defendant’s confrontation clause rights were violated by the admission of the defendant’s nickname through an officer who lacked first-hand knowledge that the defendant used the nickname "Tony Guns." The trial court also abused its discretion by admitting evidence of the defendant’s flight and resisting arrest. State v. Marlow, COA No. 37323-8-II (Apr. 28, 2010).

DV Protection Orders. There is no right to a jury trial in a hearing on a petition for a domestic violence protection order under ch. 26.50 RCW. Blackmon v. Blackmon, COA No. 36421-3-II (Apr. 27, 2010).

LUPA. CR 12(b)(6) motion properly granted where challenger had actual notice of the grant of an engineering permit, but did not file a timely administrative appeal. West v. Stahley, COA No. 37853-1-II (Apr. 27, 2010).

Nonlawyer Representation. While a nonlawyer, who is a member of a group, may represent that group before growth management hearings boards, the nonlawyer may not represent the group in court. A nonlawyer, who submits comments on behalf of a group in the county level, will lack personal standing before the Growth Management Hearings Board. Advocates for Responsible Development v. Western Washington Grown Management Hearings Board, COA No. 38721-2-II (Mar. 3, 2010, publication ordered Apr. 27, 2010).

Felon Voting. En Banc review granted in Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Apr. 28, 2010). The prior panel, Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010), which held that there are significant statistical racial disparities in the operation of the criminal justice system in Washington and that those disparities cannot be explained in race-neutral ways, may not be cited as precedent by or to any court. See 9th Cir. R. 35-3(3) and GR 14.1(b).

WEEKLY ROUNDUP FOR APRIL 23, 2010

Witness Tampering. The unit of prosecution for witness tampering is one count for each ongoing attempt to persuade a witness not to testify. Thus, a defendant’s multiple phone calls to a single witness constitutes one unit of prosecution for witness tampering. State v. Hall, No. 82558-1 (Apr. 22, 2010).

Gant. Officer’s warrantless search of the defendant’s vehicle was lawful under both the Fourth Amendment and Const. art. I, § 7, because the officers had probable cause to arrest the defendant for possession of marijuana, and a nexus between the defendant, the crime of the arrest, and the search of the vehicle. State v. Wright, COA No. 62142-4-I (Apr. 19, 2010).

Ineffective Assistance of Counsel. Defense counsel’s tactical decision to pursue an "all or nothing" defense in a second degree assault trial amounted to ineffective assistance of counsel. State v. Breitung, COA No. 38869-3-II (Apr. 20, 2010). Judge Penoyar dissented. [Editor’s note: This is the third case in which Division Two has found that trial counsel was ineffective for not requesting jury instructions on a lesser included offense. The Washington Supreme Court granted the State’s petition for review of State v. Grier, 150 Wn. App. 619 (2009). The Supreme Court Cause No. is 83452-1. Argument has not yet been scheduled in this case.]

Unlawful Possession of a Firearm. The municipal court’s failure to provide the defendant with the notice required by former RCW 9.41.047(1), when the municipal court imposed sentence for DV assault, required the vacation of the defendant’s conviction for unlawful possession of a firearm and the dismissal of the offense with prejudice. State v. Breitung, COA No. 38869-3-II (Apr. 20, 2010). Judge Penoyar dissented.

Pre-Text Stops. An officer’s decision to stop a vehicle after a check of the license plate indicates that the registered owner’s license is suspended is not a pretextual stop in violation of Const. art. I, § 7. State v. Johnson, COA No. 27422-5-III (Dec. 10, 2009, publication ordered Apr. 22, 2010).

Gant. Gant does not prohibit an officer from searching a purse that a driver removes from the vehicle and is holding at the time the driver is placed under arrest. State v. Johnson, COA No. 27422-5-III (Dec. 10, 2009, publication ordered Apr. 22, 2010).

WEEKLY ROUNDUP FOR APRIL16, 2010

Rape Shield Statute. The rape shield statute does not preclude a defendant from offering evidence or cross-examining a victim about the events on the night of the alleged sexual encounter, including the victim’s sexual conduct with other individuals. State v. Jones, No. 82613-7 (Apr. 15, 2010).

Persistent Offenders. Equal protection does not require the State to prove the prior strikes to a jury in a Persistent Offender Accountability Act, chapter 9.94A RCW, sentencing. Reasonable grounds exist for distinguishing persistent offenders whose prior convictions are treated as aggravators for purposes of sentencing, and other recidivists for whom a prior conviction is treated as an element of the current offense. State v. Langstead, COA No. 61869-5-I (Apr. 12, 2010).

Indecent Exposure. Felony indecent exposure, based upon a prior conviction for a sex offense or for indecent exposure, is an unranked crime. State v. Steen, COA No. 38679-8-II (Feb. 4, 2010, publication ordered Apr. 13, 2010).

CrR 4.7 Violation. The trial court imposed an unjust CrR 4.7(h)(7) discovery sanction by preventing a defense witness from regarding the causation of injuries because counsel had only informed the prosecution that the defense witness would be testifying about the treatment of the assault victim. Postponing the witnesses’ testimony until after the State obtained an expert would have been an effective sanction. State v. Venegas, COA No. 37828-1-II (Apr. 13, 2010).

Closing Arguments. The prosecutor committed "flagrant misconduct" by making the following statement during closing argument: "In order to find the defendant not guilty, you have to say to yourselves: 'I doubt the defendant is guilty, and my reason is' -- blank". State v. Venegas, COA No. 37828-1-II (Apr. 13, 2010).

Business Records. Under the Uniform Business Records as Evidence Act (UBRA), business records are presumptively reliable if made in the regular course of business and there was no apparent motive to falsify. Questions regarding the records' accuracy, go to their weight, not their admissibility. State v. Fleming, COA No. 37533-8-II (Apr. 13, 2010).

Theft of Rental Property. A "presumption of intent to deprive" jury instruction based upon RCW 9A.56.096(2)(a), may only be tendered to a jury when the State provides proof that the defendant actually received the written notice. State v. Fleming, COA No. 37533-8-II (Apr. 13, 2010).

WEEKLY ROUNDUP FOR APRIL 9, 2010

Invalid On its Face. A judgment and sentence that included a boiler plate paragraph regarding community placement was not "invalid on its face", despite the fact that community custody was not available for the crime of conviction. The errors in the guilty plea forms, that the available sentence would include 1 year of community placement, do not render the judgment and sentence "invalid on its face." In re Personal Restraint of Clark, No. 81522-4 (Apr. 8, 2010). Justice Sanders is the lone dissenter.

Double Jeopardy. Convictions for both second degree theft and second degree identify theft does not violate the constitutional prohibition against double jeopardy, because the two crimes are not the same in law under the "same evidence" test. State v. Milam, COA No. 63049-1-I (Apr. 5, 2010).

Replacement of Defense Counsel. A defendant cannot force the appointment of a new attorney by assaulting his attorney in the presence of the jury. State v. Fualaau, COA No. 62746-5-I (Apr. 5, 2010).

ER 404(b). The admission of a defendant’s prior testimony describing a vicious assault on a victim, was properly admitted under ER 404(b) to prove identity, where the assault described in the prior testimony and the assault in the current case shared a ritualistic quality. State v. Fualaau, COA No. 62746-5-I (Apr. 5, 2010).

Public Records Act and SSOSA. Victim impact statements are exempt from disclosure under the Public Records Act. Special Sex Offender Sentencing Alternative (SSOSA) evaluations, however, must be disclosed after redaction of any identifying information regarding the victim and certain other third parties. Koenig v. Thurston County, COA No. 37446-3-II (Apr. 6, 2010). [Editor’s note: This case was decided in a 1-1-1 split: Judge Penoyar held that the victim impact statements are exempt from disclosure, Judge Armstrong held that both victim impact statements and SSOSA evaluations are exempt from disclosure, while Judge Bridgewater held that neither victim impact statements nor SSOSA evaluations are exempt from disclosure. The opinion’s reasoning with respect to the SSOSA evaluations would be equally applicable to a GR 15 motion to seal such evaluation.]

WEEKLY ROUNDUP FOR APRIL 2, 2010

Juries. A defendant raising a violation of the "fair-cross-section" requirement of the Sixth Amendment must establish that any existing underrepresentation was due to "systematic exclusion" of the group in the jury-selection process. Practices, such as excusing people who merely alleged hardship or simply failed to show up for jury service, reliance on mail notices, a failure to follow up on nonresponses, the use of 15-months old residential addresses, and the refusal of police to enforce court orders for the appearance of prospective jurors, are insufficient to establish "systematic exclusion." Berghuis v. Smith, No. 08-1402 (Mar. 30, 2010).

Guilty Pleas and Immigration. The lawyer for an alien charged with crime has a constitutional obligation to tell the client that a guilty plea carries a risk that he will be deported. Padilla v. Kentucky, No. (Mar. 31, 2010).

Jury Selection. A prosecutor's peremptory challenge of the only African-American venire member in a trial of an African-American defendant does not amount to a prima facie case of discrimination in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The trial judge, therefore, did not err in failing to require that the prosecutor provide a race-neutral explanation for his challenge. Justice C. Johnson authored the lead opinion State v. Rhone, No. 80037-5 (Apr. 1, 2010). Chief Justice Madsen concurred with the result reached by the lead opinion, but she cast a fifth vote for the rule announced in the dissent. Justice Alexander authored the dissenting opinion. This opinion announced the following rule for future cases:

....

Tort Claim Filing Statute. The injured party substantially complied with former RCW 4.96.020(3) (2001), the local government tort claim filing statute, when he submitted a claim that described the damages he would request, without identifying a numerical number, and that included one of his addresses for the six-month period preceding his discharge. Renner v. City of Marysville, No. 81959-9 (Apr. 1, 2010). Chief Justice Madsen authored a concurrence. Justice Fairhurst dissented.

On Tuesday, March 30, 2010, the Washington Supreme Court granted review in the following cases:

Post-Conviction DNA Testing. The denial of a motion for post conviction DNA testing is appealable as a matter of right. A defendant is entitled to an order of indigency to pursue such an appeal. Post-conviction DNA testing should have been ordered where there was no evidence that anyone other than the rapist had intercourse with the victim; thus, DNA results excluding the defendant as the donor of the sperm would provide new information about the rapist's identity and likely establish his innocence. State v. Thompson, COA No. 59366-8-I (Mar. 29, 2010).

SEPA. The City of Seattle’s approval of a plan for residential development of federal property being disposed of under the Defense Base Closure and Realignment Act of 1990 (BRAC), 10 U.S.C. section 2687, is a project action that is subject to SEPA compliance. Magnolia Neighborhood Planning Council v. City of Seattle, COA No. 63466-6-I (Mar. 29, 2010).

Unlawful Possession of Fictitious Identification. Providing a potential employer with a forged SSN card and green card will support a conviction for unlawful possession of fictitious identification. State v. Tinajero, COA No. 27932-4-III (Dec. 24, 2009, publication ordered Apr. 1, 2010).

Uniform Act to Secure Attendance of Witnesses. A prosecutor shows sufficient diligence in attempting to obtain the presence of an out-of-state sexual assault victim, who does not wish to return to California and testify, by obtaining a subpoena for her from the out of state court pursuant to the Uniform Act to Secure Attendance of Witnesses from without the State in Criminal Cases (Pen. Code, § 1334 et seq.). The prosecutor was not required to also invoke the detention and transportation provisions of the act. People v. Cogswell, S158898 (Apr. 1, 2010). [Editor’s note: Out-of-state cases interpreting this Act are persuasive authority in Washington pursuant to RCW 10.55.110. This case would appear relevant to the use of a CrR 4.6 or CrRLJ 4.6 deposition at trial.]

WEEKLY ROUNDUP FOR MARCH 27, 2010

Drug Enhancements. A sentencing enhancement for possession of a controlled substance in a jail or prison requires a finding that the defendant took a volitional act to place himself in the enhancement zone. State v. Eaton, No. 81348-5 (Mar. 25, 2010) . Justice Fairhurst authored the dissenting opinion.

Self-Representation. The grounds that allow a court to deny a defendant the right to self-representation are limited to a finding that the defendant's request is equivocal, untimely, involuntary, or made without a general understanding of the consequences. A court may not deny a motion for self-representation based on grounds that self-representation would be detrimental to the defendant's ability to present his case or concerns that courtroom proceedings will be less efficient and orderly than if the defendant were represented by counsel. Similarly, concern regarding a defendant's competency alone is insufficient; if the court doubts the defendant's competency, the necessary course is to order a competency review. Finally, a court may not deny pro se status merely because the defendant is unfamiliar with legal rules or because the defendant is obnoxious. State v. Madsen, No. 81450-3 (Mar. 25, 2010). Justice Fairhurst authored a concurring opinion.

Missing Transcript. The missing portion of the electronic record of a suppression hearing is material to the defendant’s appeal, entitling the defendant to a new trial. In determining whether a missing portion is "significant or material" under RALJ 5.4, the trial court must first determine the content of the lost record. This determination is a factual determination. The trial court must then determine whether the contents of the missing record were significant or material pursuant to RALJ 5.4. This is a legal determination that is reviewed de novo by an appellate court. State v. Osman, No. 82671-4 (Mar. 25, 2010).

Public Disclosure Act. In a replacement for Justice Sanders’ January 15, 2009, opinion, Five separate opinions were issued by the Court in Yousoufian v. The Office of Ron Sims, No. 80081-2 (Mar. 25, 2010). Now, the new majority opinion holds that the sanction set by the trial court judge was unreasonably low, and sets a new daily sanction of $45. The Supreme Court’s chosen sanction was based upon a consideration of the following mitigating and aggravating factors:

Justice Owens dissented, finding that the trial court judge did not abuse its discretion.

Attorney’s Fees. A prisoner, who succeeded in getting an appellate court to vacate a penal infraction and to declare a statute unconstitutional, is entitled to attorney fees under 42 U.S.C 1988(b). The award of attorney fees is not precluded by the Prison Litigation Reform Act, 42 U.S.C. 1997e. The award of attorney fees is not dependent upon the prisoner succeeding on his remaining claims. Parmelee v. O'Neel, No. 82128-3 (Mar. 25, 2010) .

Gant. Evidence collected, without a warrant, from a driver’s vehicle, after the driver was arrested for DWLS 3, handcuffed, and placed in the back of the patrol car, must all be suppressed. Although the search occurred well before the issuance of Gant, the defendant preserved the claim by bringing a CrR 3.6 motion to suppress that alleged the officer’s exceeded the scope of a lawful search incident to arrest. State v. Scalara, COA No. 37966-0-II (Mar. 23, 2010).

Fair Labor Standards Act. If police officers have the option of donning and doffing their uniforms and gear at home, these activities are not compensable pursuant to the FLSA and the Portal-to-Portal Act. Bamonte v. City of Mesa, No. 08-16206 (9th Cir. Mar. 25, 2010).

Excessive Force. Officers, who Tasered a misdemeanant arrestee, who was resisting attempts to extract her from her vehicle, were entitled to qualified immunity in an action for excessive force. The officers had probable cause to arrest the woman for failing to sign the notice of infraction, and for obstruction. The Taser was deployed in ‘touch" or "drive-stun" mode, only after efforts to obtain the woman’s cooperation, warnings that non-cooperation would result in the use of the Taser, the woman became increasingly confrontational, and the woman used force to immobilize herself in her vehicle. This opinion distinguishes a Taser on "touch" or "drive-stun" mode from a Taser on "dart" mode. Brooks v. City of Seattle, No. 08-355526 (9th Cir. Mar. 26, 2010).

WEEKLY ROUNDUP FOR MARCH 19, 2010

Court Appointed Special Deputy Prosecuting Attorneys. An attorney for criminal defendants in concurrent litigation against the State, is not "qualified" to serve as a court appointed special prosecutor. Former RCW 36.27.030 does not authorize the appointment of a special prosecutor as a means for the judge to direct the manner in which a particular case will be handled. State v. Tracer, COA No. 37812-4-II (Mar. 16, 2010).

Court Involvement in Plea Negotiations. A trial court judge may not sua sponte amend a charge to a lesser included offense, and then accepting a guilty plea to that lesser included offense. State v. Tracer, COA No. 37812-4-II (Mar. 16, 2010).

Rape Trauma Syndrome. In this civil case, the court holds that rape trauma syndrome evidence is admissible to help explain the trauma process and the manner in which a victim reacts to rape. The analysis should be helpful in criminal cases, particularly since the court cites to many Washington criminal cases in support of its holding. Carlton v. Sunwest Management, Inc., COA No. 36797-1-II (Mar. 16, 2010).

Public Trials. A defendant’s right to a public trial is not violated by requiring members of the public to undergo routine general courthouse security screening before entering the courthouse. State v. O’Connor, COA No. 27691-1-III (Mar. 18, 2010).

Courthouse Displays. The Spokane County prosecutor's office Victims and Witnesses Unit’s National Day of Remembrance for Murder Victims displays, which were set up by the courthouse entrances, did not require a mistrial. State v. O’Connor, COA No. 27691-1-III (Mar. 18, 2010).

WEEKLY ROUNDUP FOR MARCH 12, 2010

Sexually Violent Predators. A jury in a SVP proceeding should receive an instruction defining the term "personality disorder." In re Detention of Pouncy, No. 81769-3 (Mar. 11, 2010). Chief Justice Madsen dissented with respect to this part of the opinion.

Expert Witnesses. An expert witness may not be impeached by a judge’s findings in another case. In re Detention of Pouncy, No. 81769-3 (Mar. 11, 2010). Chief Justice Madsen concurred on this point, although she dissented with respect to the need for a jury instruction defining the term "personality disorder."

No Contact Orders. A life-time no contact order with the defendant’s ex-wife/telephone harassment victim and his daughter/first degree kidnapping victim, had to be vacated because the sentencing judge did not consider whether a lifetime no contact order prohibiting all contact was reasonably necessary to serve the State’s interests with respect to the victims. In re Personal Restraint of Rainey, No. 81244-6 (Mar. 11, 2010).

Collateral Attacks. The petitioner in a personal restraint petition or other collateral attack bears the burden of establishing the timeliness of a petition for relief. In re Personal Restraint of Quinn, COA No. 60180-6-I (Mar. 8, 2010).

Misinformation. A defendant who was affirmatively misinformed about the consequences of pleading guilty at the time he entered his plea, did not waive the right to seek withdrawal of his plea where he attempted to raise the issue prior to sentencing. In re Personal Restraint of Quinn, COA No. 60180-6-I (Mar. 8, 2010).

Court Ordered Recordings. An application for a wire under RCW 9.73.130(3)(f) is not invalid simply because it contains some boilerplate language. A wire application is sufficient if it contains an explanation of how the wire will assist in proving the target crime, and information regarding prior failed investigative techniques. State v. Constance, COA No. 63903-0-I (Mar. 8, 2010).

Merger. The burglary anti-merger statute allows for separate punishment when burglary is the predicate crime of the felony murder. State v. Elmore, COA No. 34861-6-II (Mar. 9, 2010).

Blakely. Application of the 2007 amendments to the SRA, to a crime committed prior to 2007, does not violate the constitutional separation of powers doctrine. State v. Elmore, COA No. 34861-6-II (Mar. 9, 2010).

Abuse of Trust. The aggravating factor for abuse of trust, statutorily enacted in 2005, could be applied to a rape of child offense committed prior to 2005. Application of the statutorily enacted abuse of trust aggravating factor to a pre-2005 offense does not violate the ex post facto clauses of the federal or state constitution. State v. Hylton, COA No. 38575-9-II (Mar. 9, 2010).

"Actual Innocence". A court created "actual innocence" exception will allow a petition to collaterally attack his conviction more than one year after the conviction becomes final. An offender is "actually innocent" of being a persistent offender if a foreign conviction is not "comparable" to a Washington "strike." A California "assault" conviction is not comparable to assault in Washington, because California assaults require general intent, while Washington assaults require a specific intent. In re Personal Restraint of Carter, COA No. 37048-4-II (Mar. 9, 2010). Judge Penoyar dissented.

Bail Jumping. The State is required to establish that a defendant had notice of his obligation to appear for the specific hearing that underlies a charge of bail jumping. State v. Cardwell, COA No. 38684-4-II (Mar. 9, 2010).

Disqualifying Misconduct. A public employee committed misconduct that justified the denial of unemployment benefits. The disqualifying misconduct included secretly recording conversations with co-workers and members of the public without their knowledge or consent in violation of Kitsap County policy and state law, and removing unauthorized software from a county-owned laptop computer after his supervisor instructed the employee to return the laptop without deleting anything on it. Smith v State of Washington Employment Security Dept., COA No. 37492-7-II (Mar. 9, 2010).

Gender Discrimination, Sexual Harassment, and Negligent Supervision. A jury’s determination of damages will generally not be subject to reduction by the trial court. An attorney award in such cases should not include a separate award of "overhead." Collins v. Clark County Fire District No. 5, COA No. 36968-1-II (Mar. 11, 2010).

Unlawful Possession of Fictitious Identification. The presentation to an employer, of unauthentic social security and permanent resident cards in a name other than that of the employee, is sufficient to support a conviction for unlawful possession of fictitious identification. State v. Tinajero, COA No. 27932-4-III (Dec. 24, 2009, publication ordered Mar. 9, 2010).

WEEKLY ROUNDUP FOR FEBRUARY 26, 2010

Miranda Warnings. Advice that a suspect has "the right to talk to a lawyer before answering any of [the law enforcement officers’] questions," and that he can invoke this right "at any time . . . during th[e] interview," satisfies Miranda. Florida v. Powell, No. 08-1175 (Feb. 23, 2010).

Confessions. Scaling back the presumption of involuntariness announced in Edwards v. Arizona, 451 U.S. 477 (1981), the Court holds that a suspect, who invokes his right to have counsel present during questioning, may be reapproached, with fresh Miranda warnings, if there has been a break in custody of at least two weeks in length. Incarceration does not constitute custody for Miranda purposes. A prisoner, who is removed from the general prison population and taken to a separate location for questioning, is in custody for Miranda purposes. Maryland v. Shatzer, No. 08-680 (Feb. 24, 2010).

Batson Challenges. A judge need not have personally observed jury voir dire in order to accept a demeanor-based explanation for a prosecutor’s challenge, when ruling on an objection to a peremptory challenge under Batson v. Kentucky, 476 U. S. 79 (1986). Thaler v. Cardell, No. 09-273 (Feb. 22, 2010).

Excessive Force. An excessive force action may not be dismissed solely because the injured party suffered de minimis injuries. Wilkins v. Gaddy, No. 08-10914 (Feb. 22, 2010).

VUCSA Prosecutions. The specific identity of the controlled substance should be included in the "to convict" jury instruction. It’s omission, however, was not fatal when the "to convict" jury instructions incorporated the drug identity by reference to the charging document, which specified methamphetamine, and where that drug and only that drug was proven at trial. WPIC 10.2, the "knowledge instruction" is a correct statement of the law with respect to a delivery charge. State v. Sibert, No. 79509-6 (Feb. 25, 2010). Justice Sanders authored a dissenting opinion. Chief Justice Alexander authored a separate dissenting opinion.

Firearm. A hollowed-out bolt, in which a bullet is inserted, when used with a hammer to strike the bullet is a firearm under former RCW 9.41.010(1) (2001). State v. Hammock, COA No. 37389-1-II (Feb. 23, 2010).

Gant and Waiver. A defendant’s failure to challenge the lawfulness of a search in the trial court does not prevent the defendant from raising a Gant challenge for the first time on appeal. State v. Burnett, COA No. 38196-6-II (Feb. 23, 2010).

Gant and Waiver. A defendant waives his right to appeal the admission of evidence seized in a vehicle search incident to arrest if he fails to challenge that search below.7 State v. Nyegaard, COA No. 37829-9-II (Feb. 23, 2010). Judge Houghton dissents, citing a decision issued by a differently constituted panel of Division Two judges.

Intra-panel Splits. Only the Washington Supreme Court can resolve a split between different panels of the same division of the Court of Appeals. State v. Nyegaard, COA No. 37829-9-II (Feb. 23, 2010).

Land Use. The recreational overlay district is not an amendment to the county's comprehensive plan. The recreational overlay district does not run afoul of state statutes that encourage the preservation of agricultural land. The decision to permit the overlay is amply supported by the findings of the commissioners. Feil v. Eastern Washington Growth Management Hearings Board, COA No. 28248-1-III (Feb. 23, 2010).

Frye. This medical malpractice case contains an excellent discussion of the Frye test. Eakins v. Huber, COA No. 27357-1-III.

42 U.S.C. § 1983. There is no actionable claim under § 1983 for procuring a coercive or involuntary waiver of a civil rights claim. A coerced waiver, however, does not extinguish a detainee’s claim for over-detention or false imprisonment. Avalos v. Baca, No. 07-56511 (9th Cir. Feb. 24, 2010).

WEEKLY ROUNDUP FOR FEBRUARY 12, 2010

Corpus Delicti. RCW 10.58.035, a statute that permits a lawfully obtained and otherwise admissible statement of a defendant to be admitted when independent proof of the crime is absent, the alleged victim is dead or incompetent to testify, and the defendant's statement is found trustworthy based on a nonexclusive set of statutory factors that a trial court must consider, is constitutional. A statement that is admissible under the provisions of RCW 10.58.035 is insufficient, in itself, to support a conviction. The State must still prove every element of the crime charged by evidence independent of the defendant's statement. State v. Dow, No. 81243-8 (Feb. 11, 2010). Justice Jim Johnson authored a brief concurring opinion.

On Tuesday, January 9, 2010, the Washington Supreme Court granted review of the following matters:

Good Faith. A conviction predicated upon evidence collected from the defendant’s car incident to his arrest under circumstances later declared unconstitutional in Arizona v. Gant, is affirmed because the officer was acting in good faith reliance on existing Fourth Amendment law. Suppressing the evidence would not deter police misconduct. The same result applied under article I, section 7 of the Washington constitution. State v. Riley, COA No. 62418-1-I (Feb. 8, 2010). Judge Dwyer dissented.

Failure to Register as a Sex Offender. A homeless sex offender does not violate the sex offender registration law by falsely listing the locations where he stayed during the prior week. Such an individual may be charged with making a false or misleading statement to a public servant, in violation of RCW 9A.76.175. State v. Flowers, COA No. 38468-0-II (Feb. 9, 2010).

Sexual Motivation. The trial court lacked authority under former RCW 9.94A.835(3) to dismiss a sexual motivation allegation over the State's objection. The trial court lacks the authority to dismiss any special allegation over the State’s objection when the underlying charge is not subject to dismissal. State v. Meacham, COA No. 38548-1-II (Feb. 9, 2010).

Limiting Instructions. The trial court’s failure to sua sponte give a limiting instruction regarding ER 404(b) evidence is reversible error. It is irrelevant that the defendant did not request such an instruction. State v. Russell, COA No. 38233-4-II (Feb. 9, 2010).

Prosecutorial Immunity. A DPA, who obtained a bench warrant for a sex offender for the sex offender’s failure to progress in treatment, was entitled to absolute immunity in the sex offender’s civil lawsuit for false arrest and violation of various constitutional rights. The DPA’s motion, which stated that it was "based upon the records and files" attached as exhibits, did not convert the DPA into a "complaining witness." Waggy v. Spokane County, No. 09-35133 (9th Cir. Feb. 5, 2010).

Felons in Possession of Firearms. The federal law that prohibits the possession of firearms by felons does not violate the Second Amendment, or the Equal Protection Clause. United States v. Vongxay, No. 09-10072 (9th Cir. Feb. 9, 2010).

Strip Searches. The sheriff’s policy, instituted to address a serious problem of contraband smuggling in the jail system, of strip searching all arrestees, who were to be introduced into San Francisco’s general jail population for custodial housing, did not violate the Fourth Amendment. Bull v. City and County of San Francisco, No. 05-17080 (9th Cir. Feb. 9, 2010).

WEEKLY UPDATE FOR JANUARY 29, 2010

Withdrawal of Guilty Pleas. A 12-year-old, who was represented by a Grant County public defender, who was compensated under a flat fee contract, is entitled to withdraw his guilty plea to a sex offense on the grounds that counsel provided ineffective assistance of counsel. It appears that defense counsel spent as little as 55 minutes with the 12-year-old defendant before the plea hearing, did no independent investigation, did not carefully review the plea agreement, did not consult with any experts, and misadvised the defendant of the consequences of a guilty plea. State v. A.N.J., No. 81236-5 (Jan. 28, 2010). Justice Sanders authored a concurring opinion in which he "urge[s] the judiciary to take a more proactive role to facilitate the appointment of effective counsel for indigent criminal defendants." Justice Jim Johnson authored a separate concurring opinion in which he "stress[es] the limited nature of the present holding." [Editor’s Note: One bright spot, the lead opinion indicates that the WSBA endorsed standards have not been incorporated into statute and that they "are evidence of what should be done, no more."].

Andress. The mandatory joinder rule, CrR 4.3.1(b)(3), does not prevent the the State from bringing additional homicide charges against defendants, whose original convictions for second degree felony murder were overturned as a result of the Washington Supreme Court's decision in In re Personal Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002). In so holding, the Court concedes that "the circumstances presented by the Andress decision are truly extraordinary and justify application of the ends of justice exception." State v. Gamble, No. 80131-2 (Jan. 28, 2010). Justice Sanders was the lone dissenter.

Firearm Enhancements. A sentencing court is statutorily required to impose multiple enhancements where a defendant is convicted of multiple enhancement-eligible offenses that constitute the same criminal conduct under the sentencing statute. Such enhancements run consecutively to each other. State v. Mandanas, No. 80441-9 (Jan. 28, 2010). Justice Sanders authored a concurring opinion.

Negligent Dissemination of Information. No cause of action lies for negligent dissemination of unsubstantiated information. Pierce County v. Corey, COA No. 62505-5-I (Jan. 25, 2010).

Promissary Estoppel. A former deputy prosecuting attorney, who did not have either an express or implied contract for just cause termination, because there was no consideration, could proceed on a wrongful discharge claim on a theory of promissary estoppel. Pierce County v. Corey, COA No. 62505-5-I (Jan. 25, 2010).

Attorney Fees. A request for attorney fees pursuant to RCW 49.48.030, must be filed within the 10 day period authorized by CR 54(d)(2). Pierce County v. Corey, COA No. 62505-5-I (Jan. 25, 2010).

Community Caretaking. A warrantless entry into a home to check on an apparently non-responsive person, in order to determine whether the person was breathing and whether she needed medical assistance was proper under the community caretaking exception to the warrant requirement. State v. Hos, COA No. 37860-4-II (Jan. 26, 2010)

WEEKLY UPDATE FOR JANUARY 22, 2010

Open Courtrooms. The Sixth Amendment right to a public trial extends to jury selection. While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule. Such circumstances will be rare, however, and require the court to consider alternatives to closure, to limit the closure, and to make findings in support of the closure. Presley v. Georgia, No. 09-5270 (Jan. 19, 2010).

Stipulations to the Sufficiency of the Evidence. A stipulation to the sufficiency of the evidence in a drug court contract was not the functional equivalent to a guilty plea. A stipulation to the sufficiency of the evidence is a legal conclusion is not binding on a court. Instead, the court must make an independent determination of guilt after considering all the evidence. The trial still has the authority to find the defendant not guilty if it determines that the stipulated evidence does not establish all elements of the crime beyond a reasonable doubt. The statutory inference regarding burglary was appropriately utilized in this case. State v. Drum, No. 81498-8 (Jan. 21, 2010). Justice Madsen authored the dissenting opinion related to the inference of criminal intent.

Medical Marijuana. The presentation of a medical marijuana authorization does not negate probable cause. Police may obtain a search warrant despite being presented with a medical marijuana authorization. The trial court did not err by precluding a compassionate use defense where the undisputed evidence was that the defendant was not a "qualifying patient." State v. Fry, No. 81210-1 (Jan. 21, 2010). Justice Chambers authored a concurring opinion that found no fault with the majority’s opinion regarding the issuance of a search warrant, but that the trial court should generally not preclude a compassionate use defense prior to the start of trial. Justice Sanders dissented on both points. [Editor’s note: On a related note, the Medical Quality Assurance Commission, in consultation with the Board of Osteopathic Medicine and Surgery, made the decision on January 15, 2010, to deny the petition to add bipolar disorder, severe depression and anxiety related disorders, specifically social phobia to the medical conditions for which medical marijuana would be beneficial and that are permitted under state law RCW 69.51A.010(4).]

Arrest Warrants. An arrest warrant for a probation violation must be supported by a well-founded suspicion that the defendant violated the terms of his or her release. State v. Erickson, No. 81594-1 (Jan. 21, 2010).

Firearm Enhancements. Double jeopardy principles are not violated by imposition of a firearm enhancement where use of a firearm is an element of the underlying offense. State v. Kelley, No. 82111-9 (Jan. 21, 2010).

Failure to Register as a Sex Offender. Residential status is not an element of the crime of failure to register as a sex offender. State v. Bennett, COA No. 62962-0-I (Jan. 19, 2010).

Juvenile LFOs. To be timely, a order extending the period of time to collect LFO’s in a juvenile case must be entered no later than 10 years from the entry of the original disposition order or prior to the offender’s 28th birthday, whichever is earlier. The extension of judgment fee authorized by RCW 36.18.016, is not available in juvenile matters. In re Personal Restraint of Brady, COA No. 27005-0 (Jan. 19, 2010).

Terry Stops. Information from a citizen who confronts an officer in person to advise that a designated individual is committing a specific crime displays significant indicia of reliability, that may support a Terry stop of the designated individual. United States v. Palos-Marquez, No. 08-50498 (9th Cir. Jan. 19, 2010).

Summary Judgment. A district court has discretion to entertain successive motions for summary judgment. Hoffman v. Tonnemacher, No. 08-16166 (Jan. 21, 2010).

WEEKLY UPDATE FOR JANUARY 15, 2010

Sufficiency of the Evidence. In determining whether sufficient evidence supports a conviction, a reviewing court may not consider evidence outside the trial record that goes to the reliability of trial evidence. McDaniel v. Brown, No.08-559 (Jan. 11, 2010).

Firearm Enhancements. A firearm enhancement may not be imposed in cases in which the jury returned a "deadly weapon" verdict, instead of a more specific "firearm" verdict. The harmless error doctrine does not apply to this mistake. State v. Williams-Walker, No. 78611-9 (Jan. 14, 2010). Justice Fairhurst authored the dissenting opinion.

Sexually Violent Predators. When a detainee was incarcerated for a crime when the SVP petition was filed, the trial court does not need to hold an evidentiary hearing before deciding whether the act for which the detainee was incarcerated constituted a recent overt act. The preponderance of the evidence standard applies to the trial court’s determination that the crime of incarceration was a recent overt act. In this case, the record supports the trial court's determination that the detainee’s possession of child pornography was an overt act because knowledge of the detainee’s history and mental condition could create a reasonable apprehension of harm of a sexually violent nature in the mind of an objective person. In re Detention of Brown, COA No. 62383-4-I (Jan. 11, 2010).

Necessary Party. Pierce County is a necessary party to an action in which the person, who purchased a plot of land at a Pierce County tax foreclosure sale, sought title clear of any restrictions arising out of the Woodfield Estates plat. The recreational use restriction, however, was a required condition for Pierce County’s approval of the development. Graziano v. Woodfield Neighborhood, COA No. 37769-1-II (Nov. 9, 2009, publication ordered Jan. 12, 2010)

Mutual Aid Agreements. The Washington State University Police Department is a general authority law enforcement agency for purposes of the Mutual Aid Peace Officers Powers Act,

chapter 10.93 RCW. The WSU police officer’s off-campus traffic stop of the defendant was propoer under the local mutual aid agreement. State v. Hardgrove, COA No. 27994-4-III (Jan. 14, 2010).

Tasers. The officer’s use of a taser against a woman, who was standing between an officer who was attempting to arrest the woman’s belligerent and intoxicated husband for a DV assault, and the woman’s husband, and who made physical contact with the officer in an attempt to stave off the arrest, was constitutionally reasonable. Mattos v. Agarano, No. 08-15567 (9th Cir. Jan. 12, 2010).

Failure to Investigate a Crime. Law enforcement officers who are accused of failing to investigate a crime or make an arrest due to the race of the victim and that of the perpetrator are not entitled to qualified immunity. Elliot-Park v. Manglona, No. 08-16089 (9th Cir. Jan. 12, 2010).

Fifth Amendment Violations and 42 U.S.C. § 1983. The use of coerced statements in grand jury proceedings, juvenile declination hearings, and release hearings, can support a § 1983 claim against the interrogating officers. A police officer is the proximate cause of the Fifth Amendment violation, even though it is the prosecutor, not the police officer, who decides to introduce and actually introduces the statement into evidence. The officers’ conduct during the interrogations also support an action under Due Process Clause of the Fourteenth Amendment because the techniques used were so coercive as to "shock the conscience." A suspect whose arrest is supported by probable cause, but whose continued detention was justified by coerced statements, may pursue a Fourteenth Amendment rights to familial companionship claim. Crowe v. Wrisley, No. 05-55467 (9th Cir. Jan. 14, 2010).

42 U.S.C. § 1983 Liability. The traditional deliberate indifference standard applies to a pre-trial detainee’s claim that the jail staff and mental health workers failed to prevent a suicide. Court rejects the proposed substantial risk of serious harm standard proposed by the family of a detainee who committed suicide. Clouthier v. County of Contra Costa, No. 07-16703 (9th Cir. Jan. 14, 2010).

WEEKLY UPDATE FOR JANUARY 8, 2010

Land Use. When a trial court denies a permit previously granted by a hearing examiner, that permit's time limit is terminated unless the permit is reinstated on appeal. Kelly v. Chelan County, COA No. 81855-0 (Jan. 7, 2010).

The Washington Supreme Court granted review of the following cases on January 5, 2010:

Vehicular Assault. Where the trooper handed the special statutory notice form to the interpreter, who then read from the form in Spanish to the defendant, the State meets its burden of establishing that the defendant received notice of his right to an independent blood test. The State need only prove, by a preponderance of the evidence, that the special statutory notice was tendered to a defendant. Beer cans seized from the car without a warrant were admissible because the trooper would have inevitably discovered the beer cans in the back of the car during the lawful impound and inventory search of the defendant’s vehicle. State v. Morales, COA No. 36941-9 (Jan. 5, 2010).

Gant . A defendant who did not bring a suppression motion prior to trial, may assert a claim under Gant v. Arizona for the first time on appeal. The good faith exception to the exclusionary rule will not be applied to automobile searches performed prior to the issuance of Gant. State v. Harris, COA No. 36565-1-II (Jan. 7, 2010). Judge Quinn-Brintnall dissented.

Paternity. In cases in which there is a presumptive father, a trial court must first hold a hearing to determine if DNA testing is in the child’s best interests. In re Parentage of S.E.C., COA No. 38883-9-II (Jan. 7, 2010).

Voting Rights. Vote denial claims challenging felon disenfranchisement laws are cognizable under § 2 of the Voting Rights Act (VRA). The Washington felon disenfranchisement law violates § 2 of the VRA, in that: (1) there are significant statistical racial disparities in the operation of the criminal justice system; (2) those disparities cannot be explained in race-neutral ways; and (3) those non-race-neutral disparities in the criminal justice system lead to significant racial disparities in the qualification to vote. Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010).