WEEKLY ROUNDUP FOR JULY 25, 2014

Washington Supreme Court

Open Administration of Justice. The public’s interest in the open administration of justice prohibits redaction of the Superior Court Management Information System (SCOMIS) indices to replace the petitioners’ full names with their initials in order to hide the fact that they were defendants to an unlawful detainer action. "Property owners in this state have an interest in being able to discover unlawful detainer actions that settle, and the public has a general interest in the open administration of justice. Altering the indices to obscure the fact that an action was filed will not help to ‘foster the public's understanding and trust in our judicial system.’" Hundtofte v. Encarnaciуn, No. 88036-1 (Jul. 24, 2014). Chief Justice Madsen concurred, resolving the issue solely under GR 15. Justices Gonzбlez, Gordon McCloud, Stephens and Fairhurst dissented.

Division One

Blood Search Warrants. The State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested. State v. Martines, COA No. 69663-7-I (Jul. 21, 2014).

Law Enforcement Digest

The August edition of the Law Enforcement Digest is now on line.

Ninth Circuit

Batson. Comparative juror analysis is not required by Batson. When voir dire is extremely limited, appellate courts must be extra-hesitant in substituting their judgment based upon the cold transcript for the trial judge’s judgment based upon direct observation. McDaniels v. Kirkland, No. 09-17339 (9th Cir. Jul. 25, 2014).

WEEKLY ROUNDUP FOR JULY 18, 2014

Washington Supreme Court

Collateral Attack. An inmate’s personal restraint petition, in which the inmate argues that his 999-month sentence for a crime committed prior to his 18th birthday violates both the Eighth Amendment and article I, § 14, is dismissed as a time-barred mixed petition. In re Personal Restraint of Thomas, No. 88921-0 (Jul. 17, 2014).

Children and Firearms. An adult, who negligently allowed a child to remove an unsecured and loaded firearm from the family home, cannot be prosecuted for third degree assault for the injuries sustained by the child’s classmate when the firearm discharged while inside the child’s backpack. While "cause in fact" is the same for civil and criminal liability, "legal causation" is less broad in criminal cases than in tort cases. Because it is not unlawful for an adult to leave loaded unsecured firearms in the home where children can access them, the legal causation for a crime is not satisfied. The adult cannot be charged under RCW 9A.08.020's "innocent or irresponsible person" prong as the adult did not act with the mens rea necessary for third degree assault. State v. Bauer, No. 88559-1 (Jul. 17, 2014). Justice Gonzбlez authored the dissenting opinion, which was signed by Fairhurst and Stepens.

Assaults and Double Jeopardy. The defendant’s convictions for second degree assault and fourth degree assault violated the prohibition upon double jeopardy because the multiple assaultive acts constituted one course of conduct. The double jeopardy analysis in these cases is highly dependent upon the totality of circumstances, considering (1) the length of time over which the assaultive acts took place; (2) whether the assaultive acts took place in the same location; (3) the defendant's intent or motivation for the different assaultive acts; (4) whether the acts were uninterrupted or whether there were any intervening acts or events; and (5) whether there was an opportunity for the defendant to reconsider his or her actions. In the instant case, the defendant head butted the victim and then grabbed her neck and held her against some furniture in the same location over a short period of time. State v. Villanueva-Gonzalez, No. 89364-1 (Jul. 17, 2014). [Editor’s note: The legislature can avoid this fact-specific test by statutorily defining "assault" and adopting a unit of prosecution for assault.]

Burglary and Cruel and Unusual Punishment. The defendant’s implied threat of force was sufficient to support his conviction of second degree burglary. A sentence of life in prison without the possibility of parole (LWOP) for a defendant whose third strike is the Class B felony of second degree robbery does not violate article I, § 14's prohibition against cruel or unusual punishment. Previous strike convictions do not need to be proven to a jury in a Persistent Offender Accountability Act case. State v. Witherspoon, No. 88118-9 (Jul. 17, 2014). Justice Gordon-McCloud authored the dissenting opinion, stating that a mandatory sentence of LWOP violates article I, § 14. The facts of this case support the imposition of a standard range sentence. Justices Wiggins, Fairhurst and Gonzбlez signed the dissent.

Division One

Collateral Attacks. A facial error related to an assault charge does not entitle the defendant to collaterally challenge his guilty plea to murder, more than one year after his judgment and sentence became final. The defendant’s sole remedy, is correction of his sentence for the murder conviction. In re Personal Restraint of Smalls, COA No. 68740-9-I (Jul. 14, 2014).

Division Two

Revocation of Conditional Releases. An insanity acquittee need not be competent before a court can proceed on a motion to revoke the insanity acquittee’s less restrictive alternative (LRA). State v. Derenoff, COA No. 44314-7-II (Jul. 15, 2014).

Division Three

Confrontation Clause. The defendant’s right to confrontation was violated through the admission of hearsay evidence–specifically a recitation of the non-testifying confidential informant’s summary of the phone conversation the informant had with the defendant to set up the methamphetamine deal. The statements were "testimonial hearsay", because a reasonable confidential informant would believe his or her statements regarding a controlled buy would further police investigations towards future criminal prosecutions and specifically that such statements would be available for use at a later trial. The error was not harmless under the law of the case doctrine because the "to convict" instruction required the State to prove that the defendant knew that the substance he was delivering was methamphetamine. State v. Hudlow, COA No. 31027-2-III (May 13, 2014, publication ordered Jul. 15, 2014).

Forfeiture. Seizure of property for evidentiary purposes related to fish and wildlife violations does not preclude a subsequent forfeiture of the property. The department must comply with the time limit for giving notice of forfeiture action once its investigation establishes that the evidence was used in the commission of the crime. State v. 1999 Ford F350 Pickup, COA No. 31361-1-III (Jul. 17, 2014).

WEEKLY ROUNDUP FOR JULY 3, 2014 AND JULY 11, 2014

Washington Supreme Court

Law of the Case. If the jury is instructed (without objection) that to convict the defendant, it must be persuaded beyond a reasonable doubt of some element that is not contained in the definition of the crime, the State must present sufficient evidence to persuade a reasonable jury of that element regardless of the fact that the additional element is not otherwise an element of the crime. While this rule applies to all unchallenged instructions, not just the to-convict instruction, the State is generally not required to prove each definition of "threat" that may be included in the jury instructions. State v. France, No. 89235-1 (July 3, 2014).

Frisks. The "fruit of the poisonous tree" doctrine does not apply to Terry frisks. Thus, an officer may rely upon information learned during a prior contact with the defendant to justify a current frisk without proving the legality of the prior contact. The opening of a small (6 inch long, 4 inch wide, and 1 to 2 inch deep) opaque box that the officer removed from the suspect’s pocket during a lawful weapons frisk was improper. State v. Russell, No. 89253-9 (Jul. 10, 2014).

On Tuesday, July 8th and Thursday, July 9th, the Court accepted review of the following cases:

Defendant’s Off Stand Demeanor. State v. Barry, No. 89976-2. Kitsap County. COA opinion reported at 179 Wn. App. 175 (2014). Issue presented: Whether it was prejudicial error for the trial court to instruct the jury that it may consider the defendant’s off stand demeanor during deliberations. Briefs available on line: •89976-2 COA Appellants Brief89976-2 COA Respondents Brief89976-2 Petition for Review

Murder by Extreme Indifference and Gang Affiliation. State v. Henderson, No. 90154-6. Pierce County – State’s Petition. COA opinion reported at 180 Wn. App. 138 (2014). Issues presented: (1) Whether first degree manslaughter and/or second degree manslaughter are lesser included offenses of first degree murder by extreme indifference; and (2) Whether the trial court abused its discretion by admitting evidence of the defendant’s gang affiliation to show motive for the murder. Briefs available on line: •90154-6 COA Appellants Brief •90154-6 COA Respondents Brief90154-6 COA Supplemental Appellants Brief90154-6 COA Supplemental Respondents Brief90154-6 Petition for Review90154-6 Answer to Petition for Review

Terry Stops. State v. Fuentes, No. 90039-6. Benton County. COA opinion is unpublished. Whether the officers had reasonable suspicion that the defendant was engaged in drug activity? Briefs available on line: Brief of Appellant Brief of Respondent Petition for Review

Public Records Act. Worthington v. West Net, No. 90037-0. "Grant petition for review; deny motion to strike answer; deny motion for sanctions; deny motion to take judicial notice." Kitsap County. COA opinion reported at 179 Wn. App. 788 (2014). Issue presented: Whether a drug task force is subject to the Public Records Act or the Open Public Meetings Act? Relevant briefs available on line: •90037-0 COA Appellants Brief90037-0 COA Reply Brief90037-0 COA Respondents Brief90037-0 Petition for Review90037-0 Answer to Petition for Review

Public Records Act. Predisik v. Spokane Sch. Dist. No. 81, No. 90129-5. COA opinion is reported at 179 Wn. App. 513 (2014). Issues presented: (1) Whether the release of unsubstantiated allegations of misconduct violated the public employee’s right to privacy? (2) Whether allegations of misconduct may be disclosed in response to a PRA request when the employer has not completed its investigation and when the employee has not been allowed his statutory right to a hearing? (3) Whether redacting the government employee’s name from records related to an open investigation into misconduct render the disclosure less offensive? Briefs available on line: •90129-5 COA Appellants Brief90129-5 COA Reply Brief90129-5 COA Respondents Brief90129-5 Petition for Review90129-5 Answer to Petition for Review

Nonjudicial Foreclosures. Wash. Fed. v. Gentry, No. 90085-0. "Granted and consolidated with #90078-7." COA opinion is reported at 179 Wn. App. 470 (2014). Wash. Fed. v. Harvey, No. 90078-7. "Granted and consolidated with #90085-0." COA opinion is unpublished. Issues presented: (1) Whether the lender may seek a deficiency judgment when the lender elects to non-judicially foreclose a deed of trust? (2) Can a secured lender contractually avoid the anti-deficiency protections of the Deed of Trust Act through boilerplate waiver provisions in its guaranty form, or is such action void as against public policy?

"John Doe" Defendants. Powers v. WB Mobile Servs., Inc., No. 90133-3. COA opinion is reported at 177 Wn. App. 208 (2013). Issues presented: May a plaintiff toll the statute of limitations under RCW 4.16.170 against an unnamed defendant by naming a "John Doe" defendant with reasonable particularity and by serving at least one named defendant within 90 days of filing? (2) Does a plaintiff, who only alleges the role of a "John Doe" defendant and does not offer any evidence of pre-litigation efforts to determine that defendant's identity, identify the "John Doe" with reasonable particularity sufficient to toll the statute of limitations? (3) If a plaintiff properly tolls the statute of limitations as to an unnamed defendant under RCW 4.16.170, must he also comply with the relation back requirements of CR 15( c) in order to substitute the unnamed defendant for a "John Doe" defendant designated in the original complaint pursuant to CR 10(a)(2)?

Nuisances. Moore v. Steve's Outboard Serv., No. 90115-5. "Grant petition for review; deny issue raised in answer; deny Respondent's motion to amend record." COA opinion is unpublished. Issues presented: (1) Whether LUPA’s 21 day statute of limitations barred a neighbor’s nuisance per se claim? (2) Whether the operation of a cottage industry in violation of the Shoreline Management Act and other Mason County or Washington state regulations constitutes a nuisance per se?

Division One

Residential Burglary. Abandonment is not a defense to the crime of residential burglary. State v. Olson, COA No. 69537-1-I (Jul. 7, 2014).

Unlawful Use of Weapons. The City of Seattle’s ordinance that prohibits carrying a fixed-blade knife in public does not violate Wash. Const. art. I, sec. 24. Applying the ordinance to person, who claimed he was carrying a fixed-blade kitchen knife for protection because he had been "jumped" before in the same neighborhood, does not violate the person’s federal constitutional right to bear arms. City of Seattle v. Evans, COA No. 67816-7-I (Jun. 30, 2014).

Vacated Streets. Where a street was vacated after two individuals contracted to purchase the abutting properties, but before either completed performance under the contract and received the deed, the conveyance included the vacated land. The seller’s subsequent attempt to convey the vacated property to King County via a quitclaim deed was ineffectual. Holmquist v. King County, COA No. 70500-8-I (Jun. 30, 2014).

Division Three

Marijunana. It is not "outrageous conduct", such as would support dismissal of delivery charges, for a police officer or a police informant to falsely claim to be medical marijuana patients. A defendant, who possessed 15 provider designation forms at one time, should have been allowed to present his medical marijuana defense to the charge of manufacturing under Shupe and the pre-2011 version of Chapter 69.51A RCW. A defendant cannot assert a medical marijuana defense to a charge of delivery when the purchaser of the marijuana presents an authorization that is not on tamper resistant paper. State v. Markwart, COA No. 31158-9-III (Jul. 8, 2014).

Ninth Circuit

Brady. Murder conviction reversed because the prosecutor did not disclose impeachment evidence regarding a witness. The withheld information included: (1) a probation report that disclosed the witness had pleaded guilty to committing a robbery; (2) that he was on probation for the offense; and (3) that the witness was a member of an affiliated Bloods gang. The State’s action is not "excused" by the fact that the defendant’s attorney had the opportunity to interview the witness prior to trial, but had failed to do so. The State’s action is not "excused" by the fact that the defendant’s attorney could have, and did, obtain a copy of the probation report post trial, with little effort.

The prosecutor’s obligation under Brady is not excused by a defense counsel’s failure to exercise diligence with respect to suppressed evidence. However, defense counsel cannot lay a trap for prosecutors by failing to use evidence of which defense counsel is reasonably aware for, in such a case, the jury’s verdict of guilty may be said to arise from defense counsel’s stratagem, not the prosecution’s failure to disclose. In such a case, the prosecution’s failure to disclose Brady or Giglio evidence would not "deprive the defendant of a fair trial," Bagley, 473 U.S. at 675. [Slip. op. at 26]

The Court of Appeal’s requirement of due diligence would flip that obligation, and enable a prosecutor to excuse his failure by arguing that defense counsel could have found the information himself. The proposition is contrary to federal law as clearly established by the Supreme Court, see Early, 537 U.S. at 8, and unsound public policy. Especially in a period of strained public budgets, a prosecutor should not be excused from producing that which the law requires him to produce, by pointing to that which conceivably could have been discovered had defense counsel expended the time and money to enlarge his investigations. No Brady case discusses such a requirement, and none should be imposed. See Banks, 540 U.S. at 691 (setting forth the essential elements of a Brady claim). [Slip. op. at 29-30]

Amado v. Gonzalez, No. 11-56420 (9th Cir. Jul 11, 2014). Judge Rawlinson dissented.

Search Warrants. The officer committed "a serious breach of the duty [he]owed to the court by omitting the following information about the eyewitness from a search warrant application: (1) her prior sales of methamphetamine from the trailer where the shooting occurred; (2) her apparent dishonesty about the presence of drug-related paraphernalia in the trailer; (3) her interest in serving as a confidential informant in the future in exchange for consideration of her drug charges; (4) her statement to police that the trailer shooting was related to drugs and money. United States v. Ruiz, No. 13-30003 (9th Cir. July 11, 2014).

WEEKLY ROUNDUP FOR JUNE 27, 2014

United States Supreme Court

Cell Phones. The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Although the search incident to arrest exception does not apply to cell phones, the continued availability of the exigent circumstances exception may give law enforcement a justification for a warrantless search in particular cases. Riley v. California, No. 13-132 (Jun. 25, 2014).

Washington Supreme Court

Death Penalty. Death sentence upheld and PRP dismissed in a unanimous decision.

Miranda Violation. The admission of the defendant’s custodial statements to two officers violated the Fifth Amendment, but the error was harmless. The defendant’s statement that "I don't want to talk about it" was an unequivocal assertion of his right to remain silent. The officers to whom this statement was made did not abide by the defendant’s clear refusal to talk. Although they did not engage in express questioning, the officers subjected the defendant to the functional equivalent of questioning. The error was harmless because the error is harmless because the defendant’s quasi-confession– "I fucking had it. How can you feel good about doing something like this" - was not as prejudicial as his subsequent properly admissible outburst – "I don't give a fuck. The motherfuckers are all dead. I killed them. My life is over."

Ineffective Assistance of Counsel. The defendant’s claim that his attorneys were insufficiently experienced to represent him in a capital case is rejected because counsel met the requirements of SPRC 2 and additionally satisfied relevant ABA guidelines. The defendant’s claim that his trial counsel were prejudicially ineffective because no lead counsel was ever officially appointed fails because both attorneys were qualified and the division of labor between attorneys was reasonable. The defendant’s claim that counsel failed to conduct a thorough pretrial factual investigation fails as trial counsel utilized the services of a mitigation specialist and there is no evidence that hiring additional investigative help would have resulted in the discovery and admission of mitigating or exculpatory evidence.

Taped Statement. Trial counsel’s decision to concede the admissibility of the defendant’s tape-recorded statement was a legitimate trial tactic, as it provided defense counsel with evidence of the defendant’s (1) lack of planning, (2) remorse, and (3) prior incidents of domestic violence between the defendant and one of the defendant’s three victims.

Brain Injury. The defendant’s claim that counsel were ineffective for failing to inform the judge at the time of the defendant’s competency hearing that the defendant suffered a brain injury, fails because the judge was informed of the defendant’s medical conditions before finding him competent to stand trial, withdraw his not guilty by reason of insanity (NGI) plea, and enter his Alford plea.

Domestic Violence. Defense counsel were not ineffective in questioning some witnesses about the defendant’s prior acts of domestic violence. Once the judge ruled that these incidents were proper rebuttal to the defendant’s mitigation evidence, defense counsels’ decision to partially defuse the subject by bringing it up on direct examination is best characterized as a trial strategy.

Malingering. It was not deficient performance for defense counsel to not object or ask for a curative instruction when the prosecutor elicited opinions from mental health experts that the defendant might be malingering his psychotic symptoms. Because malingering is generally beyond the ordinary understanding of lay persons, it is a proper subject for expert opinion.

Jury Instructions. The defendant cannot show prejudice from his counsel’s failure to request certain jury instructions regarding premeditation, planning, or Alford pleas.

Prosecutor’s Closing Argument. The prosecutor’s "guilt trip" remarks –

"You can't let the defendant make you feel guilty for the decision he puts you in the position of making."

and

"[D]on't let the defense guilt trip you because of the immensity of the task .... [Y]ou should feel no guilt for being members of the community doing a civic duty. That was a play on your sympathy and emotion."

were not improper or prejudicial. Note, however, that the Court did find the prosecutors’ statements to be a "bit unpolished." They were, however, not "egregious misstatements."

While the suggestion that the defendant exchanged three human lives for life imprisonment might incite an emotional response on the part of the jury, it was limited to the circumstances of the crime and thus was not improper.

Constitutionality of the Death Penalty. Because the defendant cannot establish that chapter 10.95 RCW violates the Eighth Amendment, his claim that the statute violates article I, section 14 of the Washington State Constitution is also unavailing.

In re Personal Restraint of Cross, No. 79761-7 (Jun. 26, 2014).

"Public Servant." A Sound Transit fare enforcement officer (FEO) is not a "public servant" as defined in RCW 9A.04.110(23), because the FEOs are not government employees, are not officers of government, and do not perform a government function. State v. K.L.B., No. 88270-3 (Jun. 26, 2014). Justice Jim Johnson (ret.) authored the dissenting opinion. [Editor’s note: It does not appear that Laws of 2014, ch. 153 (effective June 12, 2014), would change the majority’s opinion in this case.]

Division One

Indecent Exposure. In an indecent exposure prosecution, the State must prove that the defendant intended the act that resulted in an open and obscene exposure and that the defendant intended the exposure to be "open and obscene." State v. Swanson, COA No. 69618-1-I (Jun. 23, 2014).

Special Inquiry Judge. A subpoena subjected to judicial review under RCW 10.27.170 can satisfy article I, section 7's authority of law requirement. RCW 10.27.170 requires showing a reasonable suspicion, a showing at least as great as that required to satisfy the requirements for a grand jury subpoena under the Fourth Amendment. Denying public access to special inquiry proceedings does not violate article I, section 10 of the Washington State Constitution. State v. Reeder, COA No. 69226-7-I (Jun. 23, 2014).

Defense Attorney Conflicts of Interest. The trial court properly denied the defendant’s request for new counsel that was based on a colleagues brief consultation with the defendant’s sister while the colleague was employed at another firm. The trial court’s creation of a "Chinese wall" between the defendant’s counsel and his colleague was sufficient to resolve any possible problem. State v. Reeder, COA No. 69226-7-I (Jun. 23, 2014).

Statute of Limitations. The statute of limitations (SOL) for securities fraud under The Securities Act of Washington, chapter 21.20 RCW, controls over the SOL contained in RCW 9A.04.080. State v. Reeder, COA No. 69226-7-I (Jun. 23, 2014).

Double Jeopardy. The unit of prosecution for securities fraud, RCW 21.20.010, is each transaction. The unit of prosecution for theft is each separate, unauthorized withdrawal. State v. Reeder, COA No. 69226-7-I (Jun. 23, 2014).

Refusal to Perform Field Sobriety Tests. The prosecution may introduce, as evidence of guilt, that a DUI suspect refused to perform a field sobriety test. FSTs are a brief and reasonable method for determining whether an individual is intoxicated. A request to perform FSTs is justified under the Terry stop exception to the warrant requirement. Because a defendant does not have a constitutional right to refuse to perform FSTs as part of a lawful Terry stop, the prosecution may comment on the defendant's refusal to perform the tests. State v. Mecham, COA No. 69613-1-I (Jun. 23, 2014 (replaces the Apr. 21, 2014, opinion).

Confrontation Clause. The certification of mailing on the license revocation order is not testimonial hearsay. The revocation order was admitted at trial to show that the defendant’s license was revoked on the date of the offense, it was not admitted to show the fact of mailing. State v. Mecham, COA No. 69613-1-I (Jun. 23, 2014 (replaces the Apr. 21, 2014, opinion).

Restitution and DWLS. Burial expenses for a woman, who died after the defendant ran into her with his car, were properly ordered under RCW 9A.20.030(1), upon the defendant’s conviction for DWLS. State v. Harris, COA No. 69729-3-I (Jun. 23, 2014).

Good Time. DOC did not wrongfully refuse to honor an inmate’s earned early release credit for time served in jail when it denied the inmate transfer to community custody. The inmate’s failure to satisfy other statutory prerequisites, such as the need to obtain an approved release plan, justified DOC’s actions. Blick v. State, COA No. 70403-6-I (Jun. 23, 2014).

Division Two

Corpus Delicti. A detective’s testimony about the lack of blood spatter on the victim’s left thumb, which indicated that the thumb was outside, not inside, the trigger guard, when the victim was shot and the pathologist’s testimony that the blood spatter evidence was consistent with the theory that someone other than the victim pulled the trigger, was sufficient independent evidence to admit the defendant’s statement that she had shot the victim. State v. Green, COA No. 43632-9-II (Jun. 24, 2014).

PTSD. The trial court erred in excluding the defendant’s expert’s testimony that the defendant’s PTSD and her battered person syndrome could explain why the defendant might have said that she shot the victim when she did not. The expert, however, could not present testimony on whether the defendant’s present claim that she did not shoot the victim is credible. Frye does not apply to this expert’s testimony. State v. Green, COA No. 43632-9-II (Jun. 24, 2014). Judge Robin Hunt dissented on this point.

Confrontation Rights. Officers’ testimony concerning statements the codefendants made concerning the planning and execution of the robbery, the number of participants, the weapons used, and the property taken violated the defendant’s Sixth Amendment right of confrontation. The statements were not exempt from Crawford’s limitations simply because they were not offered for the truth of the matter asserted. The trial court' s direction prohibiting the officers from explicitly stating that the codefendants identified the defendant as the fourth perpetrator does not prevent the constitutional violation. State v. Berniard, COA No. 42579-3-II (Jun. 24, 2014).

Jury Trial Rights. While the dismissal of a juror whose emotional response to the case imperiled her health or ability to deliberate may not threaten the defendant’s jury trial rights, a court commits constitutional error if the juror’s emotional state arises from the juror’s view of the merits. In the instant case, there was a reasonable probability that the dismissed juror’s distress arose from her "holdout status." The trial court’s failure to conduct a balanced investigation and apply the heightened evidentiary standard prior to dismissing the juror, requires a retrial. State v. Berniard, COA No. 42579-3-II (Jun. 24, 2014).

Division Three

Trafficking in Stolen Property. A person’s bringing unpurchased store merchandise to the customer service counter for a refund does not amount to trafficking in stolen property. The person’s actions only amount to theft, as the person’s intent is not to deprive the store of the merchandise, but only of the value of the merchandise. The defendant’s use of a gift card obtained by bringing unpurchased store merchandise to the customer service counter to purchase an item that is then subsequently returned for cash is also not trafficking in stolen property– the use of stolen property to obtain cash does not amount to trafficking in stolen property. State v. Graham, COA No. 31891-5-III (Jun. 26, 2014).

Double Jeopardy. The trial court violated double jeopardy when its sentencing order vacated the first degree assault conviction, which arose from the same facts as the first degree attempted murder conviction, but went on to state that the lesser charge would be reinstated if the attempted first degree murder charge is vacated on appeal. "[T]here was no need for the court to issue an order holding the first degree assault conviction open for reinstatement. The rule remains that ‘a lesser conviction previously vacated on double jeopardy grounds can be reinstated following the appellate reversal of a defendant's more serious conviction based on the same criminal conduct.’" State v. Howard, COA No. 32157-6-III (Jun. 24, 2014).

No Contact Order. The trial court’s entry of a lifetime no contact order with the defendant’s four biological children, who witnessed the attempted murder of their mother, cannot stand on the current record. While a no contact order is needed to protect the children’s emotional welfare while they remain young, the facts suggest that the scope of the order may be more than reasonably necessary to protect the children's long-term welfare. State v. Howard, COA No. 32157-6-III (Jun. 24, 2014).

County Tort Liability. Spokane County may be liable to a juror’s estate, where the County voluntarily promised to aid the elderly juror and the elderly juror’s daughter relied on the promise. The daughter, who reported her father as missing, was assured by a dispatcher that the sheriff’s department would immediately send a law enforcement officer to search for the missing juror and would contact the juror’s daughter when the officer found the juror. Mita v. Guardsmark, LLC, COA No. 31457-0-III (Jun. 24, 2014).

Massachusetts Supreme Court

Fifth Amendment and Computer Encryption. The Fifth Amendment does not prevent the defendant from being compelled to provide his key to seized encrypted digital evidence when the the defendant's act of decryption would not communicate facts of a testimonial nature to the government beyond what the defendant already has admitted to investigators. Compelling the decryption falls within the "foregone conclusion" exception to the Fifth Amendment privilege against self-incrimination where the facts conveyed already are known to the government, such that the individual "adds little or nothing to the sum total of the Government's information." Fisher v. United States, 425 U.S. 391, 411 (1976). For the exception to apply, the government must establish its knowledge of (1) the existence of the evidence demanded; (2) the possession or control of that evidence by the defendant; and (3) the authenticity of the evidence. Commonwealth v. Gelfgatt, No. SHC 11358 (Jun. 25, 2014).

WEEKLY ROUNDUP FOR JUNE 20, 2014

United States Supreme Court

First Amendment and Government Employees. A government employee’s sworn testimony outside the scope of the employee’s ordinary job duties is entitled to First Amendment protection. Lane v. Franks, No. 13-483 (Jun. 19, 2014).

Washington Supreme Court

Venue and Public Officers. RCW 4.12.020(2), which requires that suits against public officers for acts done "in virtue of his or her office," does not apply to a sexual harassment action against a deputy prosecuting attorney. "[A]n act done by a public officer in virtue of his or her public office is an act exercising or failing to exercise the authority of the office or performing the authority in an improper manner." "As a deputy prosecuting attorney, Brown has the authority to take all actions to prosecute citizens who have broken the law. He does not have the authority to harass, inflict emotional distress on, or create a hostile working environment for the other people in his office." Eubanks v. Brown, No. 88021-2 (Jun. 19, 2014).

Division One

Right of Confrontation. The admission of out-of-court testimonial statements of a child molestation victim violated the defendant’s constitutional right to confront adverse witnesses, where the prosecutor did not question the child directly about the alleged incident of molestation and the child’s prior statements about it. State v. Kinzle, COA No. 69451-1-I (Jun. 16, 2014).

Open Public Meetings. Members of the San Juan County Council (the Council) did not violate the Open Public Meetings Act (OPMA) by attending a series of closed meetings as part of a working group known as the San Juan County Critical Area Ordinance/Shoreline Master Program Implementation Committee (CAO Team). Because the Council had six members, a gathering that included three councilmembers does not constitute a "meeting" of the Council for OPMA purposes. A committee "acts on behalf of" a governing body when it exercises actual or de facto decision making authority. Advisory committees are not subject to the OPMA. Citizen Alliance for Property Rights Legal Fund v. San Juan County, COA No. 70606-3-I (Apr. 28, 2014, publication ordered Jun. 16, 2014).

Division Two

Burglary. As a matter of law, illegally possessing a firearm does not constitute a crime against property. Illegally possessing a firearm is an insufficient predicate crime for burglary. State v. Kindell, COA No. 44086-5-II (Jun. 17, 2014).

Division Three

Open Courts. As a general rule, a motion to disqualify a judge must be heard in open court proceedings. The public right to open justice does not extend, however, to the conveyance of information to a judge where there is not also a motion or request for recusal. State v. Rocha, COA No. 32064-3-III (Jun. 17, 2014).

Kidnapping. Actually threatening to kill the kidnap victim under circumstances where the victim believed she would die immediately can satisfy the element of "intent to cause extreme mental distress." The phrase "intent to inflict extreme emotional distress" does not render RCW 9AAO.020 unconstitutionally vague. State v. Harrington, COA No. 30834-1-III (Jun. 17, 2014). [Editor’s Note: This opinion is the perfect starting point for all future void for vagueness challenges.]

Constitutional Protections Against Self-Incrimination. The prosecutor erred by arguing that the jury should consider the defendant’s post-arrest silence as evidence of guilt. The issue is reviewable on appeal, despite he defendant’s failure to object on constitutional grounds to the juror’s question that elicited the information. This case highlights why jurors, in criminal cases, should not be encouraged to submit questions. State v. Terry, COA No. 31094-9-III (Jun. 19, 2014).

Law Enforcement Digest

The July 2014 edition of the Law Enforcement Digest is now available on line.

The 2014 Legislative Summary is now available on line.

Ninth Circuit

Prosecutorial Error. The prosecutor’s statements describing "reasonable doubt" as "something that makes you comfortable with your decision today," and suggesting that jurors would "be very uncomfortable" explaining to neighbors if "we walked him," were improper. Trillo v. Biter, No. 11-15463 (9th Cir. Jun. 16, 2014).

Living in Vehicles. Los Angeles Municipal Code section 85.02, which prohibits use of a vehicle "as living quarters either overnight, day-by-day, or otherwise" violates the Due Process Clause of the Fourteenth Amendment as an unconstitutionally vague statute. Cheyenne Desertrain v. City of Los Angeles, No. 11-56957 (9th Cir. Jun. 19, 2014).

WEEKLY ROUNDUP FOR JUNE 6, 2014

Washington Supreme Court

On June 3 and 5, 2014, the Court granted petitions for review in the following cases:

Probationer/Parolee Searches. State v. Cates, No. 89965-7. Snohomish County. Whether a community custody condition that requires the defendant to "consent" to searches by his CCO is lawful? COA opinion is unpublished. Briefs available on line: •89965-7 Appellants Brief89965-7 Petition for Review89965-7 Respondents Brief89965-7 Statement of Additional Grounds

Reasonable Doubt. State v. Kalebaugh, No. 89971-1. Lewis County. COA opinion reported at 179 Wn. App. 414 (2014). Whether the trial court’s preliminary instruction undermined the defendant’s presumption of innocence. Briefs available on line: •89971-1 Appellant's Brief89971-1 Petition for Review89971-1 Reply Brief89971-1 Respondents Brief89971-1 Statement of Additional Grounds Brief

Exceptional Sentences. State v. Volk, No. 90005-1. Kittitas County. "Grant petition for review and consolidate with Friedlund #89926-6." COA opinion is unpublished. Briefs available on line: •90005-1 Answer to Petition for ReviewRespondentAppellant ReplyAppellant The issue statement on the Court’s website for Friedlund is "Whether a trial court’s failure to enter written findings of fact and conclusions of law in support of an exceptional sentence requires remand for entry of findings and conclusions."

Term of Community Custody. State v. Bruch, No. 90021-3. Snohomish County. "Granted on sentencing issue only." Whether the judgment and sentence set out a sufficiently definite term of community custody. COA opinion is unpublished. Briefs available on line: •90021-3 Appellants Brief90021-3 Petition for Review90021-3 Respondents Brief

Exceptional Sentences. State v. Graham, No. 89869-3. Spokane County. Whether the "multiple offense policy" mitigating factor set forth in rcw 9.94a.535(1)(g) applies to multiple serious violent offenses which would otherwise be subject to RCW 9.94A.589(1)(b)? COA opinion reported at Briefs available on line: •89869-3 Appellants Brief89869-3 Petition for Review89869-3 Reply Brief89869-3 Respondents Brief

Prosecutor Error. State v. Mickelson, No. 89920-7. Thurston County. Whether the prosecutor’s comments deprived the defendant of his right to a fair trial. COA opinion is unpublished. Briefs available on line: •89920-7 Amended Petition for Review89920-7 Appellants Brief of Lewis89920-7 Appellants Brief of Mickelson89920-7 Respondents Brief89920-7 Statement of Additional Grounds of Mickelson

State Building Code. Iman v. Town of Springdale, No. 89927-4. "Grant Muslim America's motion for extension of time to file petition for review; grant Muslim America's petition for review; deny Iman and Hatem's petition for review; deny Town of Springdale's request for review of the Court of Appeals denial of its request for attorney fees; deny Respondent's request for attorney fees." Whether Muslim America was entitled to a writ of mandamus forcing the Town to enact an ordinance exempting the Muslim America property and building from the operation of the State Building Code under RCW 19.27.042? COA opinion reported at 178 Wn. App. 333 (2013). Briefs available on line: •89927-4 Appellants Brief of Iman and Hatem89927-4 Corrected Muslin Americas Opening Brief89927-4 Petition for Review Iman89927-4 Reply Brief of Iman and Hatem89927-4 Reply Brief oftlineof Muslim America89927-4 Town of Springdales Response to Opening Brief of Appellants Iman and Hatem89927-4 Town of Springdales Response to Opening Brief of Muslim America89927-4 Answer to Petition for Review89927-4 Notice of Errata89927-4 Answer to Iman and Hatems Petition for Review89927-4 Answer to Muslim Americas Petition for Review

Terry Stops. State v. Z. U. E., No. 89894-4. Pierce County/State’s Petition for Review. Whether the Court of Appeals by misapplied the totality of the circumstances test to determine whether there was reasonable suspicion to support the stop? COA opinion reported at 178 Wn. App. 769 (2014). Briefs available on line: •89894-4 Appellants Brief89894-4 Petition for Review89894-4 Respondents Brief

Division Two

Attorney Disqualification. A former deputy prosecuting attorney waived his right to disqualify plaintiffs’ counsel in a sexual harassment suit by excessive delay in bringing the motion to disqualify. "Delaying the filing of what is expected to be a contentious motion to disqualify based on a hope that the issue will resolve itself may be understandable in certain situations. . . .However, when the attorney subject to disqualification is actively involved in ongoing litigation, a party cannot continue on this course of action indefinitely. At a certain point before that attorney engages in extensive litigation work a party must decide whether to move forward with the motion to disqualify or to waive the right to disqualify." Eubanks v. Klickitat County, COA No. 44969-2-II (Jun. 3, 2014).

Division Three

HIV Testing. RCW 70.24.340(1 )(c), which authorizes a local health department to conduct human immunodeficiency virus (HIV) testing and counseling of a defendant found guilty of a drug offense if the court determines that the "related drug offense is one associated with the use of hypodermic needles," limits the trial court to ordering the test only in cases in which the trial court affirmatively finds that the defendant actually used a hypodermic needle at the time of the crime. State v. Mercado, COA No. 31180-5-III (Jun. 5, 2014).

Unlawful Possession of a Firearm. A California certificate of rehabilitation, which operates as a recommendation that the Governor issue a pardon but is not sufficient in itself to restore the right to possess firearms in California, qualifies for the exception provided by RCW 9,41.040(3). State v. Harrison, COA No. 31109-1-III (Jun. 3, 2014). Judge Brown dissented.

Post-Sentence Furloughs. Once a defendant is committed to the custody of the Department of Corrections, RCW RCW 72.66.012 vests DOC with the the sole authority to grant furloughs. Sentencing courts lack the power to grant furloughs to inmates in the custody of DOC. In re Post-Sentencing Review of Cage, COA No. 31848-6-III (Jun. 3, 2014).

Attorney General Opinions

Firearm Crimes. An individual who has been convicted in a foreign country of a crime that is comparable to a felony under Washington law is prohibited from possessing a firearm in Washington and, accordingly, is ineligible for a concealed pistol license. An issuing authority is prohibited from issuing a concealed pistol license to any applicant with a foreign conviction comparable to a Washington felony. AGO 2014 No. 6.

Ninth Circuit

42 U.S.C. § 1983 Liability. A former inmate’s unlawful imprisonment and conviction claims for the withholding of a confidential informant’s criminal history, did not accrue until the former inmate’s conviction was held invalid. Rosales-Martinez v. Palmer, No. 12-15077 (9th Cir. Jun. 3, 2014).

WEEKLY ROUNDUP FOR MAY 30, 2014

United States Supreme Court

Double Jeopardy. Once the jury is sworn in, jeopardy attaches. This rule holds true even if the State offers no evidence. The State may not appeal the denial of its motion for a continuance following the dismissal of charges under these circumstances. Martinez v. Illinois, No. 13-5967 (May 27, 2014).

Deadly Force. Officers did not violate the Fourth Amendment by shooting the driver of a fleeing vehicle to put an end to a dangerous car chase. Plumhoff v. Rickard, No. 12-1117 (May 27, 2014).

Mental Retardation and the Death Penalty. A threshold requirement that prohibits a murderer from presenting evidence of mental retardation or intellectual disability unless the murderer’s IQ score is below 70 violates the Eighth Amendment. Hall v. Florida, No. 12-10882 (May 27, 2014).

Division One

Fingerprint Identification. A Frye hearing is not required before admitting fingerprint identification. The ACE-V technique is generally accepted in the scientific community. State v. Pigott, COA No. 69003-5-I (Mar. 31, 2014, publication ordered May 21, 2014).

Law Enforcement Digest

The June 2014 edition of the Law Enforcement Digest is now available on line.

Ninth Circuit

Prosecutorial Error. A prosecutor commits error by phrasing cross-examination questions regarding a witnesses’ prior inconsistent statements as "but you told us" and "I asked you and you said." Such questions violate the advocate-witness rule. United States v. Rangel-Guzman, No. 13-50059 (9th Cir. May 28, 2014).

WEEKLY ROUNDUP FOR MAY 23, 2014

Washington Supreme Court

Religious Accommodation. Washington's Law Against Discrimination (the WLAD), chapter 49.60 RCW, requires employers to make reasonable accommodations for their employees' religious practices. Kumar v. Gate Gourmet, Inc., No. 88062-0 (May 22, 2014).

Division One

Residential Burglary. Sufficient evidence supports the "dwelling" element of residential burglary, where the defendant remove the lattice that hung down from the deck to the ground and crawled under an attached deck to reach the access door to the sewer pipe, which was set in the foundation of the building. State v. Moran, COA No. 69507-0-I (May 19, 2014).

Open Courts. Closing a courtroom to the public pursuant to RCW 26.33.060, without following the procedure under Seattle Times Co. v. Ishikawa, 97 Wn.2d 30 (1982), is error. Absent a showing of actual prejudice, this error cannot be raised for the first time on appeal. In re the Adoption of M.S.M.-P., COA No. 69222-4-I (May 19, 2014).

Division Two

Victim Polygraphs. CrR 4.7(d) only authorizes "reasonable" discovery. Ordering a rape victim to submit to a polygraph examination is unreasonable because: (1) polygraph examinations are inadmissible at trial absent a stipulation from both parties; (2) an adverse polygraph test will not result in the dismissal of charges; and (3) a polygraph test of a sex crime victim will produce highly unreliable information. State v. Finch, COA No. 44637-5-II (May 20, 2014).

SSODAs and Offender Victims of Sexual Assault. The juvenile offender’s SSODA did not authorize the administration of a polygraph examination to determine the veracity of the offender’s rape allegations. An individual charged with rape may not intervene in his accuser’s juvenile court matter, either to enforce the offender’s complaince with the SSODA disposition or as a "victim" of the offender’s "false reporting." State v. A.W., COA No. 45337-1-II (May 20, 2014).

Rape. The trial court did not err by instructing the jury, over the defendant’s objection, on the lesser-degree offense of rape in the third degree. State v. Corey, COA No. 43532-2-II (Apr. 1, 2014, publication ordered May 20, 2014).

Land Use. Repeal of an Urban Growth Area under the Growth Management Act (GMA) may not, in light of the urban development vested under it, remedy the expansion' s interference with GMA goals. The vested rights doctrine does not insulates the County from responsibility for its own shortcomings in the planning process. Miotke v. Spokane County, COA No. 44121-7-II (May 20, 2014).

Law Enforcement Digest

The June 2014 edition of the Law Enforcement Digest is now available on line.

WEEKLY ROUNDUP FOR MAY 9, 2014

United States Supreme Court

Excessive Force. In deciding the qualified immunity question on summary judgment, the court, if addressing the clearly established law question, must still draw all factual inferences in favor of the non-moving party. Tolan v. Cotton, No. 13-551 (May 5, 2014).

Washington Supreme Court

Sexually Violent Predators and Open Court. An SVP proceeding may proceed when the respondent is incompetent. Appointment of a guardian ad litem for a possibly incompetent respondent is a recommended safeguard. A pre-trial in-chambers conference regarding involuntary medication did not violate the respondent’s Const. art. I, § 10 right to a public trial. The proceeding as issue was akin to a status conference, which in common experience may take place in chambers rather than in open court. Detention of Morgan, No. 86234-6 (May 8, 2014). Justice Stephens dissented, asserting that an individual facing detention as an SVP should have a procedural due process right to be competent at trial. Justice Gordon McCloud concurred in Justice Stephens’ dissent, but also parted company with the majority on the public trial issue.

Ineffective Assistance of Counsel. The defendant’s attorney, who had represented the defendant’s husband during a dependency action, did not suffer from an actual conflict of interest– the alleged conflict of interest is merely theoretical, which is "insufficient to impugn a criminal conviction." The defendant has not met her burden of demonstrating deficient performance of counsel in the use of interpreters, investigation of lay and expert witnesses, in preparing the defendant for trial, and in presenting expert testimony. In re Personal Restraint of Gomez, No. 86711-9 (May 8, 2014). Justice Owens dissented in part, disagreeing with the majority’s decision regarding use of interpreters, investigation of experts, and preparation of the expert for trial. Justice Wiggins separately dissented, indicating that a reference hearing was necessary in order to resolve the issues raised in the personal restraint petition.

Other Suspect Evidence. The trial court erroneously excluded the defendant’s "other suspect" evidence that his live-in girlfriend sent the threatening e-mails to the victim of the offense. The trial court may not consider the strength or weakness of the State’s case in deciding whether to exclude defense-proffered other suspect evidence. A trial court’s erroneous exclusion of other suspect evidence is subject to constitutional harmless error analysis. State v. Franklin, No. 87253-8 (May 8, 2014). Justice Owens authored the dissenting opinion, in which she finds that the trial court did not abuse its discretion in making a "close call."

Attorneys Acting Poorly. Reversal of conviction is required in a case in which the prosecutor and the lawyer for one of the two defendants "engaged in unprofessional behavior, trading verbal jabs and snide remarks throughout over 90 volumes of proceedings in this case." Although the trial court attempted to maintain civility, the magnitude of the problem, which spilled into the prosecutor’s closing argument, requires reversal. "[T]he prosecutor is held to a higher standard than defense counsel . . . the prosecutor's behavior in this case is excused because [defense] counsel also acted unprofessionally."

Prosecutors may not refer to defense counsel’s closing argument as a "crock." Coupling the jigsaw puzzle analogy with a percentage of missing pieces is error. Comparing the reasonable doubt standard to the decision made at a cross-walk is error. "Telling the jury that its job is to ‘speak the truth,’ or some variation thereof, misstates the burden of proof and is improper." A prosecutor’s stating that a witnesses’ testimony is "the most ridiculous thing I've ever heard" is an improper expression of personal opinion as to credibility. A prosecutor’s behavior in whispering to the jury is improper, highly unprofessional and potentially damaging to the fairness of the proceedings. State v. Lindsay, No. 88437-4 (May 8, 2014).

Custodial Interrogation. The defendant did not unequivocally invoke his right to remain silent when he told police investigating a murder that, "I don't want to talk right now" but that he would "write it down." When a reasonable police officer would not understand a suspect’s statement to be an invocation of Miranda rights, the officer is not required to end the interrogation or ask questions to clarify whether the accused wants to invoke his or her Miranda rights. State v. Piatnitsky, No. 87904-4 (May 8, 2014). Justice Wiggins authored the dissenting opinion.

Miranda Meets the Canadian Charter of Rights and Freedoms. A suspect’s request for an attorney during an interrogation conducted outside the United States by foreign authorities regarding a foreign crime, does not bar an interrogation about domestic offenses by domestic authorities. Invocation of a right to counsel made to foreign officials based on a foreign legal source does not trigger the Edwards and Roberson rule to invalidate a subsequent waiver of Fifth Amendment rights. State v. Trochez-Jimenez, No. 88577-0 (May 8, 2014).

Division Two

Collateral Attacks. An indisputably inadequate personal restraint petition, which does not supports it allegations with facts or evidence, cannot be cured by a brief filed after the expiration of the RCW 10.73.090 time limit. In re the Personal Restraint of Griffin, COA No. 42012-1-II (May 6, 2014).

Ninth Circuit

Incompetency and Involuntary Medication. A trial court should not hold a Sells hearing to determine whether there is a basis for forcibly medicating a mentally ill defendant in order to restore competency until the court has determined that there is no other basis for forcibly administering medication. Harper, which allows for forcible medication to render a detainee "not dangerous", is an alternative basis that removes the need for a Sells hearing. In a Sell hearing, the court "must consider, on the one hand, the potential for and anticipated length of future civil commitment in the event the defendant is not medicated and the amount of time the defendant has already been confined, versus the period of confinement that could reasonably be expected if the defendant were restored to competency and convicted of the charged offense. . . . The district court should also consider . . . . the extent to which delaying the prosecution could jeopardize the government’s position at trial." United States v. Brooks, No. 12-30264 (9th Cir. May 7, 2014).

WEEKLY ROUNDUP FOR MAY 2, 2014

Washington Supreme Court

Unlawful Imprisonment. Charging documents need contain only the essential elements of a crime, not related definitions. The definition of "restrain" does not need to be included in an information charging the crime of unlawful imprisonment. State v. Johnson, No. 88683-1 (May 1, 2014).

Jury Instruction Defining "Reckless." It is not error to instruct the jury on the generic definition of "reckless", WPIC 10.03, as long as the jury is also give a "to convict" instruction that lists every element of the crime the State needs to prove in order to convict the defendant, including the charge-specific language for "reckless." State v. Johnson, No. 88683-1 (May 1, 2014). Justice Gordon McCloud dissented on this point.

On April 19, 2014, the Washington Supreme Court granted petitions for review in the following cases:

Offender Score Calculation. State v. Cobos, No. 89900-2. Grant County. COA opinion may be found at 178 Wn. App. 692 (2013). Whether the State is entitled to present new evidence of a defendant’s prior convictions after an appellate court finds that the defendant made a timely challenge at sentencing to the existence of the prior convictions? Briefs available on line: •89900-2 Appellants Brief89900-2 Petition for Review89900-2 Reply Brief89900-2 Respondents Brief89900-2 Petitioners Statement to the Court

Plea Agreements. State v. MacDonald, No. 89912-6. King County. Whether a plea agreement was breached when he lead detective argued for imposition of the statutory maximum term of imprisonment. COA opinion is unpublished. Briefs available on line: •89912-6 Appellants Brief89912-6 Petition for Review89912-6 Reply Brief89912-6 Respondents Brief

Fair Trial and Accomplice Liability for Sentencing Factors. State v. Allen, No. 89917-7. Pierce County. "Granted only on the issues of prosecutorial misconduct; exceptional sentence and spectator T-shirts" COA opinion reported at 178 Wn. App. 893. Whether prosecutors violated the defendant’s Due Process rights by arguing that the defendant was guilty so long as he "should have known" Clemmons intended to commit murder? Whether RCW 9A.08.020 applies to sentencing enhancements or factors? Whether the defendant’s right to a fair trial was violated by spectators who wore t-shirts memorializing the four officers murdered by Clemmons? Briefs available on line: •89917-7 Appellants Brief89917-7 Petition for Review89917-7 Reply Brief89917-7 Respondents Brief89917-7 Statement of Additional Grounds

Exceptional Sentences. State v. Friedlund, No. 89926-6. Stevens County. "Granted only on the exceptional sentence issue". COA opinion is unpublished. Whether an exceptional sentence may be upheld based upon a trial court’s oral ruling? Briefs available on line: •89926-6 Appellants Brief89926-6 Petition for Review89926-6 Respondents Brief

Privacy Act and Anti-SLAPP. Dillon v. Seattle Deposition Reporters, No. 89961-4. COA opinion reported at: 316 P.3d 1119 (2014). Whether the anti-SLAPP law, RCW 4.24.525, protects First Amendment rights or lawful conduct in furtherance of the right of petition for redress from a court? Whether the transcribed interviews were "private" conversations? Briefs available on line: •89961-4 Amicus Curiae Brief of Allied Daily Newspapers89961-4 Appellants Brief89961-4 Petition for Review89961-4 Reply Brief89961-4 Respondents Brief89961-4 Response to Amicus Brief89961-4 Answer to Petition forReview89961-4 Amicus Curiae of Allied Daily Newspapers89961-4 Amicus Curiae of Reporters Committee for Freedom of the Press

Medical Malpractice. Grove v. Peace Health St. Joseph Hosp., No. 89902-9. COA opinion is reported at 177 Wn. App. 370 (2013). Whether an injured patient must implicate a particular individual as liable for his injuries?

Service of Process. Scanlan v. Townsend, No. 89853-7. COA opinion is reported at 178 Wn. App. 609 (2013). Whether a summons and complaint that was given to the defendant’s father at a place other than the defendant’s usual abode, was properly served when the father gave the summons and complaint to his daughter?

Product Liability. Martin v. Dematic d/b/a Rapistan, Inc., No. 89924-0. COA opinion is reported at 178 Wn. App. 646 (2013). When the statute of limitations began to run? Whether service of the summons and complaint tolled the applicable limitations period as to all remaining defendants? Whether a nonpart amendment relates back to the date of the original complaint for purposes of the applicable statute of limitations?

Anti-SLAPP. Akrie v. Grant, No. 89820-1. COA opinion is reported at 178 Wn. App. 506 (2013). Whether the ,000 SLAPP penalty applies cumulatively to every party in the lawsuit? Whether the imposition of a cumulative SLAPP penalty violates the right to Petition under the Washington State Constitution? At what point does a cumulative award of statutory damages violate the Excessive Fine clause of the Eighth Amendment?

Division Two

Unlawful Display of a Weapon. RCW 9.41.270 is not unconstitutionally vague. The "place of abode" exception in RCW 9.41.270(3)(a) only applies to situations where a person is in his or her home or residence or on a structure that is attached to the residence. RCW 9.41.270 is not unconstitutional as-applied to a person who displays a rifle in his yard in a manner that placed police, who were responding to a report of domestic violence, in reasonable fear for their safety. State v. Owens, COA No. 43702-3 (Apr. 29, 2014).

Division Three

DOSA. A trial court may properly deny a defendant’s request for a DOSA sentence, when the defendant refused to take responsibility for his criminal conduct. "If a user does not take responsibility for his behavior, he is not likely to be receptive to change in the behavior." State v. Hender, COA No. 31356-5-III (May 1, 2014).

Law Enforcement Digest

The May edition of the Law Enforcement Digest is now available on line.

WEEKLY ROUNDUP FOR APRIL 14-25, 2014

United States Supreme Court

Terry Stops. An anonymous 911 tip from an eyewitness victim of reckless driving provides a sufficient basis for a Terry stop of a vehicle that matches the caller’s description, location, and direction of travel. The reported driving was sufficiently dangerous to merit an investigative stop without waiting for the officer to observe additional reckless driving himself. Navarette v. California, No. 12-9490 (Apr. 22, 2014). [Editor’s Note: While Washington generally follows Fourth Amendment Terry decisions, this case conflicts with the recent Division Two opinion in State v. Z.U.E., 178 Wn. App. 769 (2014), petition for review filed. In Z.U.E., Division Two held that an investigative stop could not be based solely on information provided by numerous named 911 callers. The Supreme Court, however, finds that a caller’s use of the 911 emergency system is an indicator of veracity as "[a] 911 call has some features that allow for identifying and tracing callers ... which provides victims with an opportunity to identify the false tipster’s voice and subject him to prosecution."]

Washington Supreme Court

Pretrial Release. A defendant, who was ordered to participate in two King County Community Center for Alternative Programs while awaiting retrial on charges of second degree murder, is not entitled to credit for time served in the alternative programs. State v. Medina, COA No. 89147-8 (2014).

Division One

Refusal To Perform FSTs. The prosecution may introduce, as evidence of guilt, that a DUI suspect refused to perform a field sobriety test. FSTs are a brief and reasonable method for determining whether an individual is intoxicated. A request to perform FSTs is justified under the Terry stop exception to the warrant requirement. Because a defendant does not have a constitutional right to refuse to perform FSTs as part of a lawful Terry stop, the prosecution may comment on the defendant’s refusal to perform the tests. State v. Mecham, COA No. 69613-1-I (Apr. 21, 2014).

Confrontation Clause and Evidence of Suspension. The certification of mailing that appears on an order of revocation is a business record. The fact of mailing is neither subject to the confrontation clause, nor an essential fact to be proven at a DWLS trial. The admission of the order through the testimony of a DOL record custodian, who had not completed the certificate of mailing, did not constitute a prejudicial violation of the defendant’s Sixth Amendment right of confrontation. State v. Mecham, COA No. 69613-1-I (Apr. 21, 2014).

Anti-SLAPP and Political Candidates. A party moving under Washington’s anti-SLAPP statute can satisfy the initial prima facie showing that the claimant’s suit arises from an act in furtherance of the right or petition or free speech in connection with a matter of public concern, when the lawsuit is based upon a candidate’s political campaign speech. Spratt v. Toft, COA No. 70505-9-I (Apr. 21, 2014).

Division Two

Custodial Interference. A parent is guilty of custodial interference in the first degree if the parent intentionally retains or conceals a child, with the intent to deprive the other parent from access to the child for a protracted period. A weekend may constitute a " protracted period" for a 14- month -old child within the meaning of RCW 9A.40. 060( 3). State v. Cline, COA No. 44026-1-II (Apr. 22, 2014).

Division Three

Defense Racially Motivated Peremptory Challenges. The trial court’s denial of two of four defense preemptory challenges to jurors of the same race as the victim, as not based upon a valid race-neutral explanation is affirmed on appeal as the appellate court may not overturn the trial court’s credibility determination and factual findings. State v. Bennett, COA No. 30815-4-III (Feb. 18, 2014, partial publication ordered April 22, 2014).

Law Enforcement Digest

The May edition of the Law Enforcement Digest is now available on line.

WEEKLY ROUNDUP FOR APRIL 11, 2014

Washington Supreme Court

Plea Withdrawals. A defendant, who is misinformed about the consequences of a guilty plea to a base offense and an accompanying sentencing enhancement, may not withdraw his agreement to the sentencing enhancement only. State v. Kinnaman, No. 89342-0 (Apr. 10, 2014).

"Compelled" Testimony. A defendant is not "compelled" to waive his constitutional right not to testify as a witness in his own criminal case by a trial court’s refusal to make a preliminary ruling on jury instructions at the close of the State’s case. State v. Mendes, No. 88945-7 (Apr. 10, 2014).

Land Use. Developers have a vested right to have their development proposals processed under land use plans and development regulations in effect at the time a complete permit application is filed, even when the regulations are later found to be noncompliant with the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Town of Woodway v. Snohomish County, No. 88405-6 (Apr. 10, 2014).

Division One

Anti-SLAPP Statute. The anti-SLAPP statute, RCW 4.24.525, is constitutional. To obtain discovery in a case once the defendant has filed a motion to strike pursuant to the anti-SLAPP statute, the plaintiff must make the same showing of "good cause" as is required for a CR 56(f) motion to continue a summary judgment hearing. Davis v. Cox, COA No. 71360-4-I (Apr. 7, 2014).

Division Two

Public Trial. A defendant’s right to a public trial is not violated when a court allows attorneys to exercise peremptory challenges during a side bar. State v. Dunn, COA No. 43855-1-II (Apr. 8, 2014).

Division Three

Accomplice Liability. A jury need not be instructed that it must unanimously determine whether the defendant acted as an accomplice or as a principle. RCW 9A.08.020 is not unconstitutionally overbroad. State v. Holcomb, COA No. 32155-0-III (Apr. 10, 2014).

Confrontation Clause and the School Bus Stop Special Finding. The admission of a map overlay showing the bus stops violates confrontation principles, as one of the purposes of generating the digital map is for potential use in a criminal proceeding. A school district official must testify to the bus stop locations on the alleged crime date. State v. Pearson, COA No. 31132-5-III (Apr. 10, 2014).

WEEKLY ROUNDUP FOR APRIL 4, 2014

Washington Supreme Court

Domestic Violence. RCW 9.94A.535(3)(h)(i), which allows a court to impose an exceptional sentence for someone who has exhibited an ongoing pattern of domestic violence, applies when the pattern of abuse was not perpetrated against the victim or victims of the currently charged offense. State v. Sweat, No. 88663-6 (Apr. 3, 2014).

On Tuesday, April 1, 2014, the Washington Supreme Court granted review of the following cases:

Accomplice Liability and Unanimity. State v. Walker, No. 89830-8. Pierce County. COA opinion may be found at 178 Wn. App. 478 (2013). Issues presented: (1) Whether an accomplice may be convicted of a crime greater than that committed by the principal; (2) Whether the jury needed to unanimously base its finding of premeditation upon the principal’s mental state or upon the accomplice’s mental state; (3) Whether the prosecutor’s closing argument violated the defendant’s right to due process; and (4) Whether defense counsel provided constitutionally deficient representation? Briefs available on line: •Appellants BriefPetition for ReviewReply Brief of Appellant Cross-RespondentReply Brief of Respondent Cross-AppellantRespondent Cross Appellants BriefStatement of Additional GroundsSupplemental Appellants BriefSupplemental Respondents Brief

Juvenile Court Jurisdiction and PreAccusatorial Delay. State v. Maynard, No. 89786-7. Cowlitz County. COA opinion may be found at 178 Wn. App. 413 (2013). Issues: Does the State's filing of charges just prior to the loss of juvenile court jurisdiction automatically preclude application of the three part test for determining preaccusatorial delay this court set out in State v. Oppelt? What is the appropriate remedy when a defendant is denied juvenile court jurisdiction because of ineffective assistance of counsel? Briefs available on line: • Appellants BriefPetition for ReviewReply BriefRespondents BriefAnswer to Petition for Review

Sheriff’s Sales. Sixty-01 Ass'n of Apartment Owners v. Pashniak, No. 89805-7. COA opinion may be found at 178 Wn. App. 228 (2013). "Granted except review of doctrine of comparative innocence is denied." Issues: Whether a trial court has discretion to vacate a sale for equitable reasons. Whether a successful bidder at a sheriff’s sale may withdraw his bid?

Trust Action. Anderson v. Dussault, No. 89788-3. COA opinion is reported at 177 Wn. App. 79 (2013). Issues presented: Whether the Trustees' Accounting Act (TAA), RCW ch. 11.106, bars a minor beneficiary's claims for breach of fiduciary duty 30 days after any trust accounting has been judicially approved, even when no guardian ad litem was appointed for the minor? Whether the various defendant’s breached any fiduciary duties owed to the beneficiary of the Trust? Whether attorney fee awards were proper?

Division One

Medical Marijuana and Probable Cause. The 2011 amendments to the Medical Use of Cannabis Act, chapter 69.51A RCW, do not require that a search warrant for violation of marijuana laws establish probable cause of a violation of medical marijuana laws. "Qualifying patients" and "designated providers" under the Act are able to assert only an affirmative defense at trial to a charge of a violation of marijuana laws. State v. Reis, COA No. 69911-3-I (Mar. 31, 2014).

Medical Marijuana and Collective Gardens. Neither the plain language of the statute nor the governor's intent as expressed in her veto message supports a reading of ESSSB 5073 (Laws of 2011, ch. 181) that legalizes collective gardens. The Kent city council acted within its authority by enacting the ordinance banning collective gardens. Cannabis Action Coalition v. City of Kent, COA No. 70396-0-I (Mar. 31, 2014).

SSOSA Revocation. Revocation of a defendant’s SSOSA on the grounds that the defendant could not afford to begin treatment and was unlikely to acquire the means to pay for treatment within a reasonable period of time, did not violate the equal protection or due process clauses of the constitution. The court inquired into the reasons why the defendant was not in sexual deviancy treatment, why he could not pay for this treatment, and whether there were adequate alternative measures that could protect the public safety. State v. Miller, COA No. 68826-0-I (Mar. 31, 2014). [Note: This opinion replaces the opinion that was filed on December 16, 2013).]

Ninth Circuit

Miranda and Children. Statements obtained from a 12-year-old child after the child’s mother signed a Parental Consent to Interview a Juvenile were inadmissible, as the child was never advised of his Miranda rights. While the mother agreed to a voluntary meeting with the detective, there is no evidence that the child ever agreed to an interview, understood it to be voluntary, or understood his mother’s role in making the necessary arrangements. The child was "in custody" at the time of the interview as: (1) the child and his mother were transported from their home to the police station by an armed detective in an unmarked patrol car: (2) the juvenile was brought to a small room where he remained for nearly an hour of questioning; (3) the child was not informed that the closed door was unlocked; (4) the child was instructed to knock on the door if he needed to use the restroom; (5) when the detective left the room, he directed the child to sit alone in the room until the detective returned; (6) the child’s mother left the room immediately prior to the start of questioning; and (7) the detective repeatedly confronted the child with fabricated evidence of guilt. United States v. IMM, No. (9th Cir. Mar. 31, 2104).

WEEKLY ROUNDUP FOR MARCH 28, 2014

Washington Supreme Court

Animal Cruelty. The trial court did not abuse its discretion by ordering the defendant not to possess, own, or live with dogs, livestock, and other animals during the entire 2-year probation period, that was imposed following the defendant’s conviction of misdemeanor animal cruelty involving dogs and the misdemeanor crime of confining animals in an unsafe manner that involved dogs. The trial court did not abuse its discretion by ordering over ,000 in restitution. The restitution, which reimbursed the State for caring for the animals that were removed from the defendant’s property, was supported by a personal statement from a senior official and bills presented by the senior official. State v. Deskins, No. 88140-5 (Mar. 27, 2014). Justice Gordon-McCloud authored a dissenting opinion regarding the restitution award.

Trafficking in Stolen Property. RCW 9A.82.050 describes only two alternative means of committing the crime of trafficking in stolen property: (1) the theft of property for sale to others; and (2) transferring possession of property known to be stolen. The defendant does not have to personally steal the property for sale to others. State v. Owens, No. 88905-8 (Mar. 27, 2014).

Division One

Conditional Release. A trial court’s order dismissing an NGI acquittee’s petition for conditional release is not appealable as a matter of right. Discretionary review of the order is not mandated in this case, as the NGI acquittee did not support her petition by expert testimony as to whether she presented a substantial danger to other persons or a substantial likelihood of committing criminal acts. State v. Howland, COA No. 68873-1-I (Mar. 24, 2014).

Division Two

Probation. RCW 9.95.210(1)(a) limits the length of probation to two years, regardless of the number of counts. State v. Rice, COA No. 43449-1-II (Mar. 25, 2014).

Fifth Amendment. The State’s cross-examination of the defendant about topics outside the scope of his direct examination violated the defendant’s right against self-incrimination. State v. Hart, COA No. 43108-4-II (Mar. 25, 2014).

Community Custody Conditions. The trial court lacked statutory authority to impose a condition of no access to the Internet without Court approval and a prohibition from joining or perusing any public social websites, as neither computer use, Internet access or social networking web site use contributed to the defendant’s offense. The "do not have any contact with physically or mentally vulnerable individuals" is unconstitutionally vague, absent a trial court clarification of the meaning of "vulnerable." State v. Johnson, COA No. 43582-9-II (Mar. 25, 2014).

Unfair Labor Practices. RCW 41. 56.030( 12) and RCW 41. 56. 160 show legislative intent to allow the Commission to impose liability on individuals for unfair labor practices. A complainant seeking to use the subordinate bias theory of liability must show that the subordinate's animus was a substantial factor in the decision resulting in the unfair labor practice. Notice of a subordinate’s anti-union animus is not a prerequisite to holding an employer liable for unfair labor practices. City of Vancouver v. Wa Public Employment Relations Commission, COA No. 43641-8-II (Mar. 25, 2014).

Division Three

LFOs. Because a sentencing court will seldom find that there is no likelihood that an offender will ever be able to pay LFOs and an offender has good strategic reasons for waiving the issue at the sentencing hearing, Division Three will not consider the issue for the first time on appeal. State v. Duncan, COA No. 29916-3-III (Mar. 25, 2014).

Law Enforcement Digest

The April 2014 edition of the Law Enforcement Digest is now available on line.

WEEKLY ROUNDUP FOR MARCH 21, 2014

Washington Supreme Court

Collateral Attack. A facial invalidity in the judgment and sentence allows a petitioner to seek correction of the error more than one-year after a conviction becomes final. A facial invalidity in the judgment and sentence does not allow a petitioner to challenge the underlying conviction more than one-year after the conviction becomes final unless the challenge falls within one or more of the RCW 10.73.100 exceptions. In re Personal Restraint of Snively, No. 84753-3 (Mar. 20, 2014).

Collateral Attack. A provision in the plea agreement which stated that the defendant breaches the agreement by filing a collateral attack, is not a waiver of the right to file a collateral attack. The State may, in response to the defendant’s filing of a personal restraint petition (PRP), attempt to refile the dismissed murder count. The defendant was not prejudiced by the trial court’s imposing a determinate sentence on the two pre-SRA murder convictions, rather then a sentence of life with a suggested minimum term. In re Personal Restraint of Yates, No. 87518-9. Argued: 09/04/2013. Justice Stephens authored a concurring opinion. Justice Gordon-McCloud was the lone dissenter. [Editor’s note: Application of the Court’s opinion in Snively to Yate’s claim should have limited his relief to an amendment of the sentences on the pre-SRA cases.]

Division One

Offender Score. The King County Superior Court’s incorrect determination in 2001 that the defendant’s 1996 and 1999 convictions were the "same criminal conduct," did not bind the Snohomish County Superior Court during its 2012 sentencing hearing. State v. Johnson, COA No. 69271-2-I (Mar. 17, 2014).

Division Two

Lesser Included Offenses. Both first degree manslaughter and second degree manslaughter satisfy Workman’s legal prong with respect to first degree murder with an extreme indifference to human life. The Washington Supreme Court’s decision in State v. Gamble, 154 Wn.2d 457, 114 P. 3d 646 ( 2005), brings manslaughter closer to first degree murder with extreme indifference such as to give a defendant a right to a first degree manslaughter instruction under the Workman test' s factual prong. Although the court assumes that criminal negligence for manslaughter would require the State to prove that a defendant failed to be aware of a substantial risk that a homicide (rather than a "wrongful act") may occur, this defendant, who shot indiscriminately into a group of rival gang members, cannot satisfy the factual prong of the Workman test. State v. Henderson, COA No. 42603-0-II (Mar. 19, 2014).

Public Duty Doctrine. A gambling business’s claims of negligence and negligent misrepresentation were all barred by the public duty doctrine, as the town’s actions in passing ordinances that taxed the activities of the business and that prohibited the activities of the business were governmental functions. The assurances of the mayor as to how future town councils would legislate did not create a "special relationship." The gambling business’s claim of intentional interference with business expectancy is barred by legislative immunity. Fabre v. Town of Ruston, COA No. 43459-8-II (Mar. 19, 2014).

Division Three

Double Jeopardy. The unit of prosecution for unlawful possession of a firearm is the particular firearm. An interruption in possession of a particular firearm, however, may result in different "possessions." State v. Mata, COA No. 30466-3-III (Mar. 18, 2014).

Public Records Act. A terminated teacher’s request for an order enjoining the school district from disclosing records pertaining to his termination was properly denied, as disclosure of the records does not violate his right to privacy, the employee personal information exemption of the PRA, or the investigative records exemption of the PRA. Martin v. Riverside School District No. 416, COA No. 31178-3-III (Jan. 30, 2014, publication ordered March 18, 2014).

Law Enforcement Digest

The April 2014 edition of the Law Enforcement Digest is now available on line.

Ninth Circuit

Arrestee DNA. California’s DNA collection scheme was constitutional as applied to anyone "arrested for, or charged with, a felony offense by California state or local officials. Haskell v. Harris, No. 10-15152 (9th Cir. Mar. 20, 2014).

WEEKLY ROUNDUP FOR MARCH 14, 2014

Washington Supreme Court

Confrontation Clause. The defendant forfeited his right to confront the victim when he chose to threaten her with violence for cooperating with the legal system. A defendant forfeits the Sixth Amendment right to confront a witness when clear, cogent, and convincing evidence shows that the witness has been made unavailable by the wrongdoing of the defendant, and that the defendant engaged in the wrongful conduct with the intention to prevent the witness from testifying. The State is not required to produce a direct statement from the witness who is intimidated into silence that the defendant’s actions are the reason for the witness refusing to testify. A defendant who procures a witness's absence waives his hearsay objections to that witness's out-of-court statements. State v. Dobbs, COA No. 87427-7 (Mar. 13, 2014). Justice Wiggins authored the dissenting opinion. Chief Justice Madsen and Justice Gordon-McCloud both signed the dissenting opinion.

Division One

Unemployment Compensation. When the record supports a finding that an employee was fired for failing to follow the employer's directions but the employer fails to show that the directions were reasonable and that the failure to follow them was deliberate, willful, or purposeful, the employee's conduct does not rise to the level of misconduct disqualifying the employee from receiving unemployment benefits. Kirby v. Department of Employment Security, COA No. 69807-9-I (Mar. 10, 2104).

Division Two

Ineffective Assistance of Counsel. Defense counsel’s performance was deficient because there was no conceivable strategic reason for counsel to fail to move to suppress evidence discovered during a warrantless search of the defendant’s purse. Defense counsel would not have an ethical problem allowing defendant to testify in a suppression hearing in a manner that was contrary to the defendant’s trial testimony, because if the defendant won the suppression motion she would not have needed to assert an inconsistent position at trial. The defendant did not abandon the unlocked purse when she disclaimed ownership over it, as the defendant had last left the purse on the counter in her house. State v. Hamilton, COA No. 43767-8-II (Mar. 11, 2014).

Public Records Act. WestNET —the West Sound Narcotics Enforcement Team, a regional task force created by an Interlocal Agreement to combat drug- related crime in western Washington, is not a separate legal entity subject to suit. If a person seeks records of WestNet, he must file PRA.requests with WestNET' s affiliate jurisdictions. Worthington v. WestNET, COA No. 43689-2-II (Jan. 28, 2014, publication ordered Mar. 11, 2014).

Ninth Circuit

Arrest Warrants. The Fourth Amendment is not violated by the issuance of a warrant that does not include a number corresponding to the true subject’s fingerprints. The warrant, which included the subject’s sex, race, hair color, eye color, approximate height and weight, and date of birth, is sufficiently particular to satisfy the Fourth Amendment. Even an arrest warrant that correctly names the person to be arrested is generally considered constitutionally sufficient. The erroneous detention of a person with the same name and DOB as the fugitive did not violate the Due Process Clause where the person was taken before the judge the very next day after the arrest. Rivera v. County of Los Angeles, No. 11-57037 (9th Cir. Mar. 12, 2014).

WEEKLY ROUNDUP FOR MARCH 7, 2014

Washington Supreme Court

On March 4, 2014, the Court accepted review of the following cases:

Public Records Act. City of Lakewood v. Koenig, No. 89648-8. City of Lakewood’s Petition for Review. COA opinion reported at 176 Wn. App. 397 (2013). Issues as stated in the Petition for Review: "1. Whether the Court of Appeals erred when it reversed the trial court and concluded that the City failed to comply with the duty to explain its exemptions to redactions of driver's license numbers under RCW 42.56.550(4) notwithstanding Mr. Koenig's representations in discovery that such a duty was not at issue in the case, and thus, the trial court decided an issue which was framed by the pleadings, discovery responses and an earlier decision from the Court of Appeals? 2. Whether the Court of Appeals erred when it reversed the trial court's grant of summary judgment in favor of the City and concluded that the failure to include an express PRA exemption protecting personal identifiers, such as driver's lie nse numbers, was an unfortunate oversight, and thus these identifiers are not exempt from disclosure under the Public Records Act, chapter 42.56 RCW?" Briefs available on line: Amicus Brief Answer to Amicus Brief Answer to Petition for Review Appellants Brief Petition for Review Reply Brief Respondents Brief Statement of Additional Authority Respondent's Second Statement of Additional Authority

Race and Jury Selection. State v. Benson, No. 89665-8. King County. COA opinion is unpublished. Issue as stated in the Petition for Review: Whether "a prosecutor's proffered race-neutral reasons for the peremptory excusal of the sole remaining African-American juror on the petit jury of an African-American criminal defendant [can] be accepted by the trial court performing the third step of the Batson Equal Protection analysis where the reasons for the strike are unsupported by the record, are "pretextual" because similar non-minority jurors were not excused from sitting, or mere "proxy" reasons for racially-motivated excusal." Briefs available on line: Petition for Review Appellants Brief Appellants Supplemental Brief Reply Brief Respondents Brief

Opinion Regarding HGN. State v. Quaale, No. 89666-6. Spokane County– State’s Petition for Review. COA opinion reported at 177 Wn. App/ 603 (2013). Issue as stated in the Petition for Review: "Did Division Three misapply the law such that the 0pinion in this case rejects existing case law, contradicts itself and improperly limits relevant opinion evidence? Did the defendant fail to properly object to the admission of the trooper's testimony?" Briefs available on line: Appellants Brief Petition for Review Reply Brief Respondents Brief

Municipal Liability. Crystal Ridge Homeowners Ass'n. v. City of Bothell, No. 89533-3. City of Bothell’s Petition for Review. COA Opinion is unpublished. Issues as stated in the Petition for Review: "Does the Crystal Ridge decision sanction the unconstitutional gifting of public funds for a private purpose in violation of the Washington State Constitution, Art. 8, sec. 7, by requiring the public to maintain a groundwater pipe that benefits only private parties? Is the Crystal Ridge decision in conflict with the Supreme Court's decision in numerous cases, including Citizens v. Yakima County, which prohibit the gifting of public funds for a private purpose under the Washington State Constitution, Art. 8, sec. 7? Does the dedication of a drainage easement for stormwater facilities on a plat necessarily include all drainage facilities located within the easement area, even those pipes not depicted on the plat map, and/or those pipes belonging to private parties that benefit only private parties; or does the dedication include only public stormwater facilities? Is the Crystal Ridge decision in conflict with the Supreme Court's decision in Spokane v. Catholic Bishop regarding common law dedications of an easement; and further in conflict with the Court of Appeals decision in Knudsen v. Patton on the same issue?" Briefs available on line: Amicus Brief of Wa State Assoc of Mun Attys Amicus Brief Answer to Amicus Brief Appellants Brief  Reply Brief Respondents Brief Answer to Amicus Curiae

Expert Testimony Regarding the Forces Involved in a Collission. Johnston-Forbes v. Matsunaga, No. 89625-9. COA opinion is reported at 177 Wn. App. 402 (2013). Issues as stated in the Petition for Review: "1. Whether a biomechanical engineer is qualified to provide an opinion on the cause of injury. 2. Whether a biomechanical engineer can base such an opinion on the amount of vehicle damage sustained in a collision without regard to the medical findings. 3. Whether a biormechanical's prediction as to how often similar collisions result in injury is relevant in a personal injury case, and if so, whether its probative value is outweighed by its misleading and overly prejudicial nature."

Anti-SLAPP. Henne v. City of Yakima, No. 89674-7. City’s Petition for Review. COA opinion is reported at 177 Wn. App. 583 (2013). Issues as stated in the Petition for Review: "Is the Court of Appeals' decision that a nonmoving party may avoid the effect of an anti-SLAPP motion by removing the offending allegations (thus rendering the motion moot) contrary to the provisions of RCW 4.24.525, which do not provide for avoidance by amendment? Is the Court of Appeals' decision that a nonmoving party may avoid the effect of anti-SLAPP motion (i.e., "mooting") by removing the offending allegations contrary to the intent of RCW 4.24.525, which protects covered entities from the moment when an offending pleading is served? Is the Court of Appeals' decision that a nonmoving party may avoid the effect of anti-SLAPP motion (i.e., ''mooting") by removing the offending allegations contrary to the provisions and intent of RCW 4.24.525 when attorney's fees have been incurred in bringing the motion before an amendment is sought? Is the Court of Appeals' decision that a party filing a motion under RCW 4.24.525 must give the nonmoving party notice of intent to file the motion and opportunity to remove the offending allegations (absent prejudice to he moving party) before such a motion may be filed contrary to the intent and provisions of the statute, which do not require such a notice procedure? As applied to municipal corporations such as the City, does the Court of Appeals' decision concerning "mooting" by amendment and giving notice/opportunity to the nonmoving party violate the separation of powers doctrine by usurping thee elusive right of the Legislature to adopt statutory conditions defining under what circumstances claims may proceed against municipalities under RCW 4.24.525?" Briefs available on line: Amicus Curiae Brief Answer to Petition for Review Reply to Answer to Petition for Review Amicus Curiae Brief of Association for Municipal Attorneys Appellants Brief Reply Brief Respondents Brief

Division Two

Public Records Act. A private party may assert the exemption contained in RCW 42. 56.270( 1), even though the public agency chooses not to. A private law firm was not entitled to an injunction that prohibited the Attorney General’s Office from disclosing information the law firm submitted to the AGO seeking eligibility to provide future securities litigation and related services to the Washington State Investment Board (WSIB). Because the AGO withheld the records in accordance with a court order, the requester did not prevail against the AGO, and thus the requester is not entitled to penalties, attorney fees, and costs. Robbins, Geller, Rudman & Dowd, LLP. v. Gresham, COA No. 44520-4-II (Mar. 4, 2014).

Law Enforcement Digest

The March 2014 edition of the Law Enforcement Digest is now available.

WEEKLY ROUNDUP FOR FEBRUARY 28, 2014

United States Supreme Court

Ineffective Assistance of Counsel. "An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland." "The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate." Hinton v. Alabama, No. 13-6440 (Feb. 24, 2014).

Consent Searches. Consent to search an apartment, that was provided by an abused woman an hour after her abusing partner had been removed from the home, pursuant to a lawful arrest, was valid under the Fourth Amendment. Evidence obtained during the consent search could be used against the absent abusive partner, even though he objected prior to his arrest, to officers entering the residence without a warrant. The subjective intent of the officers who remove the objecting resident is irrelevant– the only inquiry is whether the removal of the non-consenting resident was objectively reasonable. Fernandez v. California, No. 12-7822 (Feb. 25, 2014). [Editor’s note: Tread carefully here. In light of the greater protections afforded by Const. art. I, sec. 7, which include consideration of an officer’s subjective intent, the prudent officer will seek a search warrant prior to conducting an investigative search for evidence.]

Washington Supreme Court

Text Messages and the Privacy Act. Text messages are protected by Washington’s Privacy Act. Washington's privacy act is violated by an officer’s warrantless opening, reviewing, and responding to text messages sent to a suspect’s phone, before the suspect viewed the messages. State v. Roden, No. 87669-0 (Feb. 27, 2014). Justice Wiggins authored the dissenting opinion. The dissent was also signed by Justices Owens, Madsen, and Jim Johnson.

Confiscated Smart Phones and the Constitution. Article I, section 7 is violated by an officer’s warrantless reading of an incoming text message on an iPhone that was seized from an arrested drug dealer. The sender of a text message has standing to object to the warrantless reading of the message on a device that belongs to another. Justice Charles Johnson authored a concurring opinion in which he criticizes the dissent’s standing analysis. Justice Stephens signed Justice Johnson’s concurring opinion. Justice Jim Johnson authored the dissenting opinion. Justices Owens, Madsen and Wiggins all signed the dissent. State v. Hinton, No. 87663-1 (Feb. 27, 2014).

Search Incident to Arrest. Officers may search an arrestee's person and articles closely associated with his or her person at the time of arrest without a warrant. This includes a laptop bag the defendant was carrying and a duffel bag the defendant was pushing at the point of arrest. Because there was no significant delay between the arrest and the search of the bags, the fact that the defendant was already handcuffed and was separated from the bas by a car length does not remove the search from the rules applicable to a search incident to arrest of the person. State v. MacDicken, No. 88267-3 (Feb. 27, 2014). Justice Gordon McCloud authored the dissenting opinion. Justice Fairhurst joined Justice Gordon McCloud’s dissent.

Division One

Open Court. Under the "experience and logic" test, a witness’s assertion of the Fifth Amendment privilege against self-incrimination in an evidentiary hearing must occur on the witness stand in open court, unless the court has conducted a Bone-Club analysis and made suitable findings. State v. Rainey, COA No. 68846-4-I (Feb. 24, 2014).

Identity Theft. To prove the crime of second degree identity theft, the State must prove the defendant knew the means of identification he used belongs to another person. State v. Zeferino-Lopez, COA No. 69649-1-I (Feb. 24, 2014).

Involuntary Commitment. Washington's emergent detention statute, RCW 71.05.153, which allows for an initial 72-hour detention, without judicial review, when an investigation and evaluation indicates that the person presents an imminent likelihood of serious harm to herself or others or that the person is gravely disabled, does not violate the involuntarily detained person’s right to due process. State v. Johnson, COA No. COA No. 69322-1-I (Feb. 24, 2014).

Division Three

Public Record Act. Two teachers, who are the subject of allegations of misconduct that have not yet been substantiated, were entitled to have their names redacted from documents that the School District has identified as responsive to a PRA request. Predisik v. Spokane School District No. 81, COA No. 31176-7-III (Jan. 23, 2014, publication ordered Feb. 27, 2014).

Law Enforcement Digest

The March 2014 edition of the Law Enforcement Digest is now available.

Ninth Circuit

Public Trials. The defendants’ Sixth Amendment right to a public trial was violated when the district court closed the courtroom while the child victims were testifying. Closure was based upon the concern that an open courtroom would prevent the children from communicating effectively, and not on the concern that it would cause the children psychological. The trial court made proper findings and consider all of the required Waller factors. See Waller v. Georgia, 467 U.S. 39 (1984). United States v. Yazzie, No. 12-10165 (9th Cir. Feb. 27, 2014).

WEEKLY ROUNDUP FOR FEBRUARY 21, 2014

Division One

"Duty to Convict." The "to convict" instruction’s closing language that informs the jury that, if it finds each element proved beyond a reasonable doubt, it had the duty to convict, does not violate a defendant's constitutional right to jury trial. State v. Moore, COA No. 69766-8-I (Feb. 18, 2014).

Improper Graphics. Prejudicial error arises when a prosecuting attorney uses graphics during closing argument that show the defendant's face with the word "GUILTY" superimposed in red. State v. Hecht, COA No. 71059-1-I (Feb. 18, 2014).

Division Three

Terry Stops. An officer, who misreads a license plate number and stops a car based upon a report that the vehicle associated with the incorrectly entered license plate number was stolen, lacks reasonable suspicion to believe the a vehicle bearing a different license plate number was stolen. State v. Creed, COA No. 30893-6-III (Feb. 20, 2014). Judge Korsmo dissented, as the officer did not discover evidence through exploitation of the illegality. The officer simply observed evidence of a different crime when he walked to the car to tell the driver that he had erroneously stopped the vehicle.

Absence of Defendant. Although the trial court had a sufficient basis for initially finding that the defendant’s unexplained absence on the final day of trial was voluntary, it was an abuse of discretion to deny a new trial after the defendant established that his failure to appear was due to the need to accompany the defendant’s young son to the hospital. State v. Cobarruvias, COA No. 30665-8-III (Feb. 20, 2014).

Ninth Circuit

Emergency Aid, the Mentally Ill, and Americans with Disabilities Act. Officers were justified in entering a person’s home without a warrant under the emergency aid exception based upon the person’s social worker’s report of the person’s deteriorating condition which rendered the person "gravely disabled" and a danger to others. The officer’s second warrantless entry, which was made after they retreated when the person grabbed a knife and threatened to kill the officers because the person did not wish to be detained in a mental health facility and which provoked a near fatal confrontation, can support a claim under the Fourth Amendment. There are triable issues of fact as to whether the officers used excessive force by resorting to deadly force and shooting the person, as a jury could find the officers recklessly forced their way back into the person’s home in order to subdue her.

Finally, the Ninth Circuit holds that Title II of the Americans with Disabilities Act applies to arrests. The exigencies surrounding police officers’ decisions in the field must be taken into account when assessing the reasonableness of the officers’ actions. We hold that, on the facts presented here, there is a triable issue whether the officers failed to reasonably accommodate the person’s disability when they forced their way back into her room without taking her mental illness into account or employing generally accepted police practices for peaceably resolving a confrontation with a person with mental illness.

Sheehan v. City and County of San Francisco, No. 11-16401 (9th Cir. Feb. 21, 2014).

Massachusetts Supreme Court

Cell Phone Location Data. The Commonwealth may only obtain from a cellular telephone service provider (cellular service provider) historical cell site location information (CSLI) with a search warrant supported by probable cause. Commonwealth v. Augustine, No. SJC-11482 (Feb. 18, 2014).

WEEKLY ROUNDUP FOR FEBRUARY 14, 2014

Washington Supreme Court

Bench Trials. The presumption that judges in bench trials do not consider inadmissible evidence does not apply to evidence that is actually admissible and admitted under the law at the time of trial. State v. Gower, No. 88207-0 (Feb. 13, 2014). Justice Gonzбlez dissents on the grounds that the error here was harmless.

Kidnapping. Proof of first degree kidnapping under the hostage/shield means, RCW 9A.40.020(1)(a), requires proof that the defendant intended to use the victim as security for the performance of some action by another person or the prevention of some action by another person. It is not sufficient that the defendant intentionally abducts another person. The extreme mental distress prong, RCW 9A.40.020(1)(d), requires an intent to cause mental distress above that of "regular" abductions, meaning those falling under kidnapping in the second degree. When measuring the level of mental distress intended, the focus must be on the mental state of the defendant rather than the actual resulting distress. State v. Garcia, No. 88020-4 (Feb. 13, 2014).

Cross-examination. The trial court erroneously excluded cross-examination of the kidnapping victim as to statements made by the defendant during the course of the crime. The statements were offered to show state of mind and not for the truth of the matter asserted. State v. Garcia, No. 88020-4 (Feb. 13, 2014).

ER 609 and Burglary Convictions. A conviction for burglary can only be considered a per se crime of dishonesty when the information, probable cause statement, judgment and sentence, or statement on plea of guilty contain evidence that the defendant intended to commit theft. State v. Garcia, No. 88020-4 (Feb. 13, 2014).

Proposed Court Rules. On February 5, 2014, the Washington Supreme Court published the following proposed rules for comment. The comment period ends on April 30, 2014. All comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or . Comments submitted by e-mail may not exceed 1500 words.

GR 15 – Destruction, Sealing, and Redaction of Court Records . This proposed amendment purportedly incorporates Wash. Cont. art. I, § 10 case law.

GR 33 - Requests for Accommodation by Persons with Disabilities This proposed rule consists of technical amendments that are intended to more perfectly reflect the requirements of the Americans with Disabilities Act.

JuCR 1.6 - Physical Restraints in the Courtroom This proposed rule would prohibit routine shackling of juvenile offenders. This proposed rule largely tracks two failed bills: SB 6333 (2011) and HB 2298 (2011).

Division One

Motion to Withdraw Guilty Pleas. The trial court did not err by denying the defendant’s requested multi-month continuance of the evidentiary hearing on the defendant’s motion to withdraw his guilty pleas. The trial court did not err by denying the defendant’s request for extensive pre-evidentiary hearing discovery, as the defendant did not make a threshold showing that his pleas were not valid. State v. Nguyen, COA No. 68408-6-I (Dec. 23, 2014, publication ordered Feb. 10, 2014).

Election Challenges. A statute that denies a registered voter signing a petition multiple times the right to have one signature counted violates the First Amendment. Filo Foods, L.L.C. v. City of SeaTac, COA No. 70758-2-I (Feb. 10, 2014).

Division Two

Preliminary Oral Jury Instructions. Although the preliminary reasonable doubt instruction error - was - obvious because of the Washington Supreme Court' s directive in State v. Bennett, 161 Wn.2d 303, 318, 165 P. 3d 1241 ( 2007), to only use the 11 WPIC 4. 01 language, the defendant cannot show that the preliminary instruction had practical and identifiable trial consequences. Any possible error was cured by the trial court but it properly instructing the jury, orally and in writing, at the critical time —after the presentation of evidence. State v. Kalebaugh, COA No. 43218-8-II (Feb. 11, 2014).

Division Three

Stipulated Declination of Juvenile Court Jurisdiction. The defendant’s stipulated waiver of juvenile court jurisdiction was invalid due to an inadequate colloquy. While the court advised the defendant that he would have a "strike" on his record, the court failed to explain the legal significance of a "strike." State v. Bailey, COA No. 27489-6-III (Feb. 13, 2014). Judge Korsmo dissented.

Ninth Circuit

Second Amendment. A responsible, law-abiding citizen has a right under the Second Amendment to carry a firearm in public for self-defense. A law that "destroys" the right to carry a firearm must be struck down except where it can survive a strict scrutiny analysis. Peruta v. County of San Diego, No. 10-56971 (9th Cir. Feb. 13, 2014).

WEEKLY ROUNDUP FOR FEBRUARY 7, 2014

Washington Supreme Court

Sixth Amendment and Eavesdropping. "Eavesdropping [on an attorney/client private conversation] is presumed to cause prejudice to the defendant unless the State can prove beyond a reasonable doubt that the eavesdropping did not result in any such prejudice." [Emphasis in original.] State v. Pe a Fuentes, No. 88422-6 (Feb. 6, 2014).

Privacy Act. For purposes of the privacy act, when facts are undisputed, the question of whether a particular communication is private is a matter of law reviewed de novo. A conversation between the defendant and his brother-in-law, that was secretly recorded by the brother-in-law was a "private communication." The defendant’s subjective expectation of privacy was reasonable, where the conversation occurred in the kitchen of a private residence and the topic of the conversation was of a "sensitive" nature. State v. Kipp, No. 88083-2 (Feb. 6, 2014). Justice Fairhurst concurred, but argued that the "substantial evidence" standard of review should apply to Privacy Act claims.

SEPA Appeals. Kittitas was statutorily required to hold an "open record hearing" on the appeal of the SEPA DNS and that rock crushing was not a permissible conditional use under Kittitas's relevant zoning regulations. Rejecting the local government’s interpretation of its own zoning regulations, the Court holds that rock crushing is not a permitted conditional use on A-20 land. Ellensburg Cement Products, Inc. v. Kittitas County, No. 88165-1 (Feb. 6, 2014).

On February 4, 2014, the Washington Supreme Court accepted review of the following three cases:

Rendering Criminal Assistance and Unlawful Possession of a Firearm. State v. Davis, No.89448.5. Pierce County. COA opinion reported at 176 Wn. App. 849 (2013). Case stemming from the Lakewood police officer shooting. "Grant petitions for review of Nelson & Davis; deny State's cross-petition." Division Two briefs available on line: Respondent's Brief Statement of Additional Grounds Brief Appellant Douglas Davis's Brief Douglas Davis's Reply Brief Appellant Eddie Davis's Brief Appellant Letricia Nelson's Brief

Statute of Limitations. State v. Peltier, No. 89502-3. Snohomish County/ State’s petition for review. Whether the expiration of the statute of limitations bars prosecution when a defendant waives the SOL. COA Opinion reported at 176 Wn. App. 732 (2013). Division One briefs available on line: Appellant's Respondent's Appellant State of Washington's Reply

Washington’s Minimum Wage Act. Becerra. v. Expert Janitorial, No. 89534-1. Application of Washington’s Minimum Wage Act to a store and a janitorial contractor. COA opinion is reported at 176 Wn. App. 694 (2013). "Grant both petitions for review."

Division One

Public Records Act. An agency’s filing of a declaratory action for the limited purpose of determining the applicability of the privacy act's prohibitions against the release of certain requested records does not trigger the anti-SLAPP statute, as the requestor does not have a constitutional right to the requested records. City of Seattle v. Egan, COA No. 69129-5-I (Feb. 3, 2014).

Terry Stops. An anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. Here, there is no evidence that the 911 caller felt intimidated or alarmed when shown the gun, or that the person who was holding the gun discharged it or pointed the gun at anyone. State v. Cardenas-Muratalla, COA No. 68057-9-1 (Feb. 3, 2014).

Division Two

Comparability of Oregon Convictions.

  • Attempt Crimes. Because Oregon’s attempt statute, ORS 161. 405(1), does not include the intent mens rea of the Washington attempt statute, an Oregon conviction for an attempted offense will only count in a Washington offender score if the State can prove factual comparability based upon facts conceded in the guilty plea or proven beyond a reasonable doubt at trial.

  • Second Degree Asssault. Oregon’s definition of "serious physical injury" is broader than Washington’s definition of "substantial bodily harm", such that an Oregon second degree assault statute is not "legally" comparable to Washington’s second degree assault statute.

  • DUI. Oregon’s DUI statute’s "under the influence" prong is not legally comparable to Washington’s DUI statute’s "under the influence" prong.

  • Third Degree Rape. ORS 163. 355, which provides that a person commits third degree rape by having sexual intercourse with another person less than 16 years of age, is not legally comparable to Washington’s third degree rape of a child. The Court reject’s the State’s factual argument based upon Oregon’s marriage statute by stating that:

    • The State' s arguments do not show that it was impossible for Arndt and the victim to have been married. It is possible that a person would not know his spouse' s age. And in California there is no minimum age for marriage with a court order and written parental consent, Cal. Fam. Code 302, while in Washington, a superior court judge may waive the age requirements on a showing of necessity. RCW 26.04.010( 2).

State v. Arndt, COA No. 43717-1-II (Feb. 4, 2014).

Division Three

Identification. The trial court did not abuse its discretion by allowing a rape victim, who had been told that DNA recovered during the investigation matched the defendant, to make an in-court identification. State v. Kloepper, COA No. 30294-6-III (Feb. 4, 2014).

Jury Selection. The trial court properly denied a defense challenge for cause to a juror whose parents were friends with the rape victim. The challenged juror indicated that he did not have any social activities with the rape victim, would not know her by sight, and that it had been at least 40 years since he had seen her. State v. Kloepper, COA No. 30294-6-III (Feb. 4, 2014).

Consecutive Sentences. The trial court judge did not abuse his discretion in determining that the first degree assault and the first degree rape committed against the same victim were "separate and distinct conduct" for purposes of RCW 9.94A.589(1)(b). State v. Kloepper, COA No. 30294-6-III (Feb. 4, 2014). Judge Brown dissented solely as to this issue.

Ninth Circuit

Alford Pleas. A defendant’s Alford plea to a Washington crime in a Washington state court is insufficient in itself to warrant a finding of violation of the condition of federal supervised release prohibiting commission of a new state crime. United States v. Williams, No. 12-30353 (9th Cir. Feb. 3, 2014).

WEEKLY ROUNDUP FOR JANUARY 31, 2014

Washington Supreme Court

Recreational Use Immunity Statute. Recreational use immunity could not be determined as a matter of law when there are disputed facts as to whether a bike trail served a recreational purpose as opposed to a transportation purpose. "Extending the reach of RCW 4.24.210 to land that is open to the public for purposes other than recreation simply because some recreational use occurs not only undermines the statute's plain language and the legislature's intent but would also unjustly relieve the government of its common-law duty to maintain roadways in a condition reasonably safe for ordinary travel." Camicia v. Howard S. Wright Construction Co., No. 85583-8 (Jan. 30, 2014). Chief Justice Madsen authored the dissenting opinion.

Division One

Unpublished Non-Washington Cases. The failure to comply with GR 14.1(b)’s requirement that a copy of a cited unpublished opinion be served with the brief or other document in which the unpublished opinion is cited, can result in the court disregarding the unpublished opinion. GMAC v. Everett Chevrolet, COA No. 68374-8-I (Jan. 27, 2014).

Division Two

Defendant’s Demeanor. Allowing a jury to consider the defendant’s in-court demeanor as evidence does not violate the Fifth Amendment or article I, section 9. A defendant' s demeanor at

trial is not evidence and a jury should not be instructed that they may consider the defendant’s demeanor in deliberations. State v. Barry, COA No. 43438-5-II (Jan. 28, 2014).

Law Enforcement Digest

The February 2014 edition of the Law Enforcement Digest is now available.

Ninth Circuit

Work Product. Rule 26(b)(3) does not provide presumptive protection for all testifying expert materials as trial preparation materials. Republic of Ecuador v. Douglas Mackay, No. 12-15572 (9th Cir. Jan. 31, 2014).

Seventh Circuit

Prosecutor Immunity. While prosecutors may enjoy absolute immunity from an innocent criminal defendant’s claim based upon a prosecutor’s use of coerced testimony, a prosecutor, acting pre-prosecution as an investigator, may be held liable for falsified or fabricated evidence that the prosecutor later introduces at trial. Fields v. Wharrie, No. 13-1195 (7th Cir. Jan. 23, 2014).

Supreme Court of New York

Prosecutors and Contempt. Requiring a prosecutor to call witnesses at a suppression hearing to avoid being held in contempt exceeds the trial court's authority. A prosecutor's unopposed motion to dismiss can only be denied if motivated by bad faith, such as the prosecutor accepting a bribe, acting out of animus toward the victim or other conduct that is clearly contrary to manifest public interest. If such egregious conduct were implicated, a court could also seek to have the prosecutor removed by the Governor and replaced with the Attorney General. Matter of Soares, No. 517191, 2014 N.Y. App. Div. LEXIS 404, 2014 NY Slip Op 409 (Jan. 23, 2014). [Editor’s note: In an egregious case, the Governor of our state may also direct the Attorney General to replace the prosecutor. See generally RCW 43.06.010(7); RCW 43.10.090.]

WEEKLY ROUNDUP FOR JANUARY 24, 2014

United States Supreme Court

Cert. Granted. The Court has granted review of two cases to address whether a cell phone may be searched without a warrant incident to the arrest of a person. In United States v. Wurie, No. 13-212, the question presented is "Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested" In Riley v. California, No. 13-132, the question presented is "Whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights."

Washington Supreme Court

Death Penalty. State v. Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), which held that when a party shows prosecutorial misconduct based on racial bias, it is the State's burden to show harmlessness beyond a reasonable doubt, does not apply retroactively to cases that were final prior to the issuance of Monday. In re Personal Restraint of Gentry, No. 86585-0 (Jan. 23, 2014). Justice Wiggins dissented, "believ[ing] a reference hearing is necessary to examine pertinent statistics that would enable us to assess whether Washington's death penalty is imposed in a racially discriminatory manner."

Collateral Attacks. In a personal restraint petition (PRP), a petitioner must show actual and substantial prejudice in a challenge to a guilty plea based on a misstatement of the statutory maximum penalty. In re Personal Restraint of Stockwell No. 86001-7 (Jan. 23, 2014). Justice Gordon-McCloud wrote a concurring opinion.

Division One

Record of Conversations. Washington's anti-SLAPP statute does not protect an individual who, during the course of litigation, surreptitiously records a phone call from having to defend against a claim based upon this conduct. Dillon v. Seattle Deposition Reporters, LLC, COA No. 69300-0-I (Jan. 21, 2014). [Editor’s note: This opinion contains a detailed analysis as to whether the conversation was "private."].

Division Two

Public Trials. The trial court’s in-chambers pre-trial discussion of a statute and in-chambers end-of-trial discussion of jury instructions did not violate the public’s right to a fair trial. State v. Miller, COA No. 43215-3-II (Jan. 22, 2014).

False Statement in Application for Vehicle Title. The "Bonded Title or Three -Year Registration Without Title Affidavit" form in which the defendant made his false statement qualified under former RCW 46. 12.210 as an "application for a certificate of title.". State v. Miller, COA No. 43215-3-II (Jan. 22, 2014).

Abandoned Property. A judge does not violate the constitutional prohibition regarding commenting on the evidence by tendering, in a theft case in which the defendant claims ownership of the stolen property by virtue of the property being abandoned, a jury instruction based on RCW 63. 21. 010. State v. Miller, COA No. 43215-3-II (Jan. 22, 2014).

Public Employees. Chapter 41. 80 RCW does not protect public employees’ "concerted activities" from employer interference, restraint, or coercion. Teamsters Local Union No. 117 v. Department of Corrections, COA No. 43604-3-II (Jan. 22, 2014).

Division Three

Law Enforcement Digest

The February 2014 edition of the Law Enforcement Digest is now available.

Ninth Circuit

Jury Selection. Equal protection prohibits peremptory strikes based upon sexual orientation. Smithkline Beecham Corp. v. Abbott Laboratories, No. 11-17357 (9th Cir. Jan. 21, 2014).

WEEKLY ROUNDUP FOR JANUARY 17, 2014

Washington Supreme Court

Article I, Section 12. A medical malpractice statute of limitations case that sets out when article I, section 12 will be found to be more protective than the federal equal protection clause. The "privileges" prong of article I, section 12 requires a court to ask (1) whether a challenged law grants a "privilege" or "immunity" for purposes of our state, (2) if the answer to the first question is yes, whether there is a "reasonable ground" for granting that privilege or immunity. The article I, section 12 reasonable ground test is more exacting than rational basis review. Article I, section 12 will provide greater protection than the federal constitution to vulnerable persons, such as minors, who are not members of a "semisuspect class." Schroeder v. Weighall, No. 87207-4 (Jan. 16, 2014). Justice Jim Johnson authored the dissenting opinion.

Division Two

Rendering Criminal Assistance. Rendering criminal assistance is not a lesser included offense of first degree murder as an accomplice. State v. Allen, COA No. 42257-3 (Jan. 14, 2014).

Spectator Attire. The trial judge did not abuse her discretion by denying the defendant’s motion to bar spectators from wearing T-shirts that sported the phrase "You will not be forgotten, Lakewood Police" and listed the names of the victims. "Although [the T-shirts] did have writing on them, they did not convey a message of guilt or innocence; they were merely worn in remembrance of the victims[.]" State v. Allen, COA No. 42257-3 (Jan. 14, 2014).

Closing Argument. It is improper for a prosecutor, in closing argument, to use "should have known" as shorthand for knowledge. The error, however, will not automatically entitle a defendant to a reversal. In this case, the defendant was not prejudiced by the prosecutor’s argument. State v. Allen, COA No. 42257-3 (Jan. 14, 2014). Judge Maxa dissented on the resolution of this issue, finding that "the prosecutor’s repeated misstatements of the law regarding the level of knowledge the State must prove to convict [the defendant] as an accomplice" was prejudicial.

Accomplice Liability and Sentencing Enhancements. An enhancement that refers to the victims' statuses, such as RCW 9. 94A.535( 3)( v) (police officer victim), rather than the defendant' s acts, may be used to enhance an accomplice’s sentence. State v. Allen, COA No. 42257-3 (Jan. 14, 2014).

Vulnerable Adult Protection Orders. A petitioner' s standard of proof for a vulnerable adult protection order opposed by the alleged vulnerable adult is clear, cogent, and convincing evidence. In re Matter of Knight, COA No. 43687-6-II (Jan. 14, 2014).

Involuntary Commitments. A trial court lacks statutory authority under RCW 71. 05. 320(1) to civilly commit a mentally ill person, whose charges for reckless burning were dismissed without prejudice after the person was found incompetent, for 180 days rather than for 90 days based on a finding of grave disability. In re Detention of R.H., COA No. 44587-5-II (Jan. 14, 2014).

Division Three

Discovery Costs. In a case in which the prosecutor refused to make a free copy of a 911 tape for defense attorney, the court holds that neither CrR 4.7, RCW 10.01.160, nor Wash. Const. article I, section 22, impose upon the State the expense to copy records for a nonindigent defendant. State v. Brown, COA No. 31323-9-III (Jan. 16, 2014).

Attorney General Opinions

Prosecutor Vacancies. Addresses what happens when an individual, appointed by the county commissioners from the three person list provided by the relevant political party to fill a vacancy, declines the appointment. AGO 2014 No. 1 (Jan. 13, 2013).

Local Ordinances Regarding Marijuana Producers, Processors, And Retailers. Initiative I-501 does not preempt local authority to regulate marijuana producers, processors, and retailers within their jurisdictions. AGO 2014 No. 2 (Jan. 16, 2014).

WEEKLY ROUNDUP FOR JANUARY 10, 2014

Washington Supreme Court

DWLS. The plain meaning of former RCW 46.20.342(1 )( c )(iv) allows the State to convict a driver for DWLS 3rd where the underlying license suspension occurred for failure to pay a fine. Because the defendant is not constitutionally indigent, he lacks standing to challenge the license suspension on the grounds that the State failed to inquire into his ability to pay the fine prior to suspending his driver’s license. Because the defendant is statutorily indigent, he is entitled to the assistance state funded, totally or partially, counsel. State v. Johnson, No. 86885-9 (Jan. 9, 2013). Justice Wiggins dissented, claiming that a license may not be suspended for failing to pay a fine. Justices Charles Johnson, Jim Johnson and Gordon-McCloud concurred in the dissent. [Editor’s note: The majority’s discussion of constitutional indigency should apply to actions seeking to enforce legal financial obligations.]

On Tuesday, January 7, 2013, the Court accepted review of the following cases:

Resentencing Hearings. State v. Jones, No. 89302-1. Snohomish County– State’s Petition for Review. Whether, on a remand for resentencing, the State may submit evidence of the defendant's criminal history that it did not submit at the original sentencing hearing? Whether the trial court erred by denying the State’s request for a continuance to allow the State to obtain a certified copy of a California plea transcript? COA opinion is unpublished. Division One briefs available on line: Appellant's Respondent Cross-appellant's Appellant's Reply

Double Jeopardy. State v. Villanueva-Gonzalez, No. 89364-1. Clark County– State’s Petition for Review. COA opinion reported at 175 Wn. App. 1 (2013). Whether double jeopardy precludes conviction of multiple counts of assault based upon distinct acts (head-butting and strangulation) that are taken against the same victim in a short span of time. COA briefs not available on line.

New Trials and Time for Trial. State v. Hawkins, No. 89369-1. Douglas County. COA opinion is unpublished. Whether the trial court properly granted the defendant’s motion for new trial based upon "newly discovered evidence"? Whether the time for trial period expired when the defendant was not brought to trial within 60/90 days of the trial court’s order granting the defendant’s motion for new trial, when the court of appeals did not authorize the trial court to enter the order during the pendency of the defendant’s appeal from the conviction as required by RAP 7.2? Division Three briefs available on line: Appellant Cross Respondent Hawkins Respondent Cross Appellant Cross Appellant Reply

Securities. Futureselect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., No. 89303-9. COA opinion is reported at 175 Wn. App. 840 (2013). Whether the investors’ allegations were sufficient to state violations of The Securities Act of Washington, chapter 21.20 RCW, and negligent misrepresentations by the investment firm and auditor and to establish the liability of the corporate parent and grandparent to survive the motion to dismiss the claims under CR 12(b)(6).

Taxes. Cashmere Valley Bank v. Dep't of Revenue, No. 89367-5. COA opinion is reported at 175 Wn. App. 403 (2013). Whether interest income a bank had received on investments in real estate mortgage investment conduits and collateralized mortgage obligations was deductible under RCW 82.04.4292, when the bank's investments were not primarily secured by first mortgages or deeds of trust.

Age Discrimination. Scrivener v. Clark Coll., No. 89377-2. COA opinion reported at 176 Wn. App. 405 (2013). Whether summary judgment was properly granted to the College when the plaintiff could not demonstrate that the college president's justifications for hiring the other candidates were a pretext for age discrimination.

Division Two

Terry Stop. An informant' s report can provide reasonable justification for an officer' s investigative stop in two situations: ( 1) when the information available to the officer showed that the informant was reliable or (2) when the officer' s observations corroborate either the presence of criminal activity or that the informant' s report was obtained in a reliable fashion. A named, but otherwise unknown, citizen informant is not presumed to be reliable and a report from such an informant may not justify an investigative stop. A 911 caller’s provision of basic information – name, telephone number and location or address – is insufficient to support a finding of reliability. Cross corroboration of multiple 911 calls is insufficient to support a finding of reliability. Confirming a subject' s description or location or other innocuous facts does not satisfy the corroboration requirement. State v. Z.U.E., COA No. 43289-7-II (Jan. 7, 2014).

Division Three

Search Warrants and Marijuana. Because the Medical Use of Cannabis Act (MUCA) did not per se legalize marijuana or alter the established elements of the Controlled Substances Act, an affidavit supporting a search warrant presents probable cause to believe a suspect committed a Controlled Substantive Act violation where it sets forth enough details to reasonably infer the suspect is growing marijuana on his or her property. The affidavit need not also show the MUCA exception's inapplicability. "In so holding, we respectfully disagree with United States v. Kynaston, No. CR-12-0016WFN, slip op. at 2 (E.D. Wash. May 31,2012) (granting a suppression motion and concluding that under Washington law, an affidavit supporting a search warrant for evidence of a marijuana-based crime "must show probable cause that the criteria of the medical marijuana exception have not been met"), rev'd, No. 12-30208 (9th Cir. July 24, 2013)." State v. Ellis, COA No. 31280-1-III (Jan. 9, 2013).

Common Law Invasion of Privacy Action. To prevail on a common law invasion of privacy action, the plaintiff must establish that the officer "acted deliberately to achieve the result, with the certain belief that the result would happen." Where deputies were legitimately investigating the ex-wife’s report about a gun in the plaintiff’s home and the available information indicated that the ex-wife lived in the plaintiff’s home and could grant access to the home, no trier of fact could find the necessary intent element. Youker v. Douglas County, COA No. 30968-1-III (Jan. 9, 2013). Judge Siddoway dissented.

WEEKLY ROUNDUP FOR JANUARY 3, 2014

Washington Supreme Court

Confrontation Clause and Expert Witnesses. An expert comes within the scope of the confrontation clause if two conditions are satisfied: (1) the person must be a "witness" by virtue of making a statement of fact to the tribunal; and (2) the person must be a witness "against" the defendant by making a statement that tends to inculpate the accused.

The live testimony of a subordinate analyst may be desirable, but the confrontation clause does not require everyone who laid hands on evidence to appear in court.

Today's opinion does not allow laboratory reports to be admitted into evidence and used against a defendant without effective cross-examination. Nor does it allow a laboratory supervisor to parrot the conclusions of his or her subordinates. Instead, our test allows expert witnesses to rely upon technical data prepared by others when reaching their own conclusions, without requiring each laboratory technician to take the witness stand.

                           . . . .

If DNA evidence is used in trial, someone must be subject to cross-examination. The "someone" required by the confrontation clause is the person who has made the final comparison that is used against the defendant.

State v. Lui, No. 84045-8 (Jan. 2, 2014). Justice Stephens authored the dissent, which was joined by Justices Fairhurst, Owens and Chambers (ret.). [Editor’s note: While not foreclosing a different result in a different case, the Court did state that "[n]either the constitutional text, the historical treatment of the confrontation right, nor the current implications of adopting a broader confrontation right support an independent reading of article I, section 22."].

Division One

Statute of Limitations. The statute of limitations for rape did not begin to run until the suspect’s identity was conclusively identified when the defendant's DNA profile was matched with the suspect's DNA profile" in the CODIS database. A 10 year gap between entering the defendant’s DNA profile into CODIS using STR testing methods and resubmission of the rape suspect’s DNA profile into CODIS using STR testing methods(as opposed to the RFLP method originally used in 1998) - constitute an investigative delay that did not violate the defendant’s right to due process. State v. McConnell, COA No. 68852-9-I (Dec. 30, 2013).

Anti-SLAPP Statutory Damages. RCW4.24.525(6)(a) requires the trial court to award ,000 to all persons who prevail on an anti-SLAPP motion filed on their behalf. Akrie v. Grant, COA No. 68345-4-I (Dec. 23, 2013).

Division Three

Criminal History. A pro se defendant’s objection to his offender score supersedes the defendant’s former attorney’s stipulation that the offender score was accurate. The State is entitled to present new evidence at the resentencing hearing. State v. Cobos, COA No. 30658-5-III (Dec. 31, 2013).

Multiple Offense Policy. The multiple offense policy principles of RCW 9.94A.589(1 )(a), which allow for an exceptional sentence below the standard range, do not apply to consecutive sentences imposed for serious violent offenses pursuant to RCW 9.94A.589(1)(b). It is, however, possible to receive a mitigated exceptional sentence involving concurrent terms under RCW 9.94A.S89(1)(b). State v. Graham, COA No. 31020-5-III (Dec. 26, 2013).

Law Enforcement Digest

The January 2014 edition of the Law Enforcement Digest is now available.

Ninth Circuit

Double Jeopardy. Double jeopardy does not bar a trial after a defendant successfully rescinds a plea agreement that was entered into after the jury had been empaneled to hear the original charges. United States v. Mondragon, No. 12-30360 (9th Cir. Dec. 23, 2013).

Open Courts. The judge’s request that family members and spectators leave the courtroom during voir dire until seats became available was at most a trivial courtroom closure that did not implicate petitioner’s Sixth Amendment rights. United States v. Dharni, No. 11-16438 (9th Cir. Jan. 3, 2014).



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