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WEEKLY UPDATE FOR JULY 2, 2009

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

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

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

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

WEEKLY UPDATE FOR JUNE 26, 2009

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

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

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

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

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

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

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

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

WEEKLY UPDATE FOR JUNE 19, 2009

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

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

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

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

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

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

WEEKLY UPDATE FOR JUNE 12, 2009

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

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

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

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

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

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

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

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

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

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

WEEKLY UPDATE FOR JUNE 5, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WEEKLY UPDATE FOR MAY 29, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

United States Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Division Three

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Washington Supreme Court

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

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

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

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

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

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

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

Washington Supreme Court

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

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

Washington Supreme Court

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

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

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

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

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

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

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

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

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

Washington Supreme Court

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

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

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

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

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

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

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

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

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

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

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

Sex Offenders. RCW 9.94A.728(2)(a), which provides for convicted sex offenders’ early release into community custody, does not create a liberty interest that is protected under the Due Process Clause of the Fourteenth Amendment. Carver v. Lehman, No. 06-35176 (9th Cir. Mar. 3, 2009) (replacing opinion filed Dec. 22, 2008).

United States Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WEEKLY UPDATE FOR JANUARY 2, 2009

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

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

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

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

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

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

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

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

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

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

Ninth Circuit