Case Law

WEEKLY ROUNDUP FOR SEPTEMBER 10, 2021

Washington Supreme Court

Ineffective Assistance of Counsel A few or even several failures to object at trial is not usually cause for a finding that an attorney’s conduct has fallen below the objective standard of conduct.  But defense counsel’s failure to object to prior convictions, police profile testimony as it relates to a tactical vest, threats to witnesses, and hearsay statements regarding the defendant’s alleged drug sales, fell below the objective standard of reasonableness and resulted in prejudice to the defendant.   State v. Vasquez, No. 98928-1 (Sep. 9, 2021).  Justices González and Gordon McCloud dissented. The State was represented by Asotin County Special DPA Lindsey Grief (King Cty DPA).
 
The Supreme Court has accepted review in the following cases:
 
Firearm Storage.  City of Edmonds v. Bass, No. 99596-6.  City’s Petition.  Questions presented: 
 
1. Whether a court reviews a challenge to justiciability under the Uniform Declaratory Judgment Act (“UDJA”) using CR 12(b)(6)’s “hypothetical facts” standard, or whether CR 12(b)(1) applies and a plaintiff must allege (and then prove) “an actual, present and existing dispute,” and not a “hypothetical [or] speculative” injury. Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973).  
2. Whether the public importance exception to UDJA justiciability applies where no Plaintiff has shown that he has suffered or will suffer a concrete harm from the challenged law, and, if so, whether “public importance” requires something more than showing that a decision may have broader impact than the instant case, especially when other persons who have suffered a concrete harm would have standing.   
3.Whether Washington’s firearms preemption statute, RCW 9.41.290, preempts all local regulation related to firearms, or whether local regulation is preempted only when it falls within the enumerated topics defining the preempted “field” that are listed in the statute.   
 
COA opinion reported at 16 Wn. App. 2d 488 (2021).  Petition for review pleadings  available here.
 
Time for Trial.  State v. Walker, No. 99813-2.  Lewis County. “Petition for review and cross-petition for review both granted.”   Questions presented: Whether defense counsel’s objection to the trial date was timely under the plain language of the time for trial rule?  Are objections to the time for trial, pursuant to CrR 3.3(d)(3), required to be filed while there is still time to cure the speedy trial violation? COA opinion reported at 17 Wn. App. 2d 275 (2021).  Petition for review pleadings  available here.
 
Recidivist Offenses and Proof of Priors.  State v. Conaway, No. 99592-3.  Island County.  Questions presented: Is the prior conviction requirement of felony indecent exposure satisfied by a conviction that was dismissed after the defendant satisfied the terms of a deferred sentence?  Did the defendant preserve his challenge to the sufficiency of the evidence?   COA opinion is unpublished.   Petition for review pleadings  available here.
 
 

Division Two

Unlawful Possession of a Firearm.  The State provided sufficient evidence that an antique shotgun that was missing an easily obtained bolt action was a “firearm” as defined under former RCW 9.41.010(9).  The State’s burden was to establish that the shotgun was a real gun, not a toy gun.  The State was not required to prove that the firearm could be rendered operation with reasonable effort and within a reasonable period of time.  State v. Gouley, COA No. 54468-7-II (Sep. 7, 2021).  
 
Closing Argument.  A defendant’s burden of establishing prejudice in a prosecutorial error case is not altered where the challenge touches on the defendant’s constitutional right to remain silent, and such comments are not “per se incurable.”  A non-constitutional harmless error analysis is applied when analyzing prejudice.  Here, the prosecutor’s statement that the defendant did not deny owning the shotgun was not improper where the defendant stipulated to the admissibility of his custodial statements without need for a CrR 3.5 hearing and the defendant told his community corrections officer that the shotgun belonged to him.  The prosecutor’s statement that the defendant did not deny that the gun was operable may have been improper under the facts of this case, but this question need not be resolved as the defendant has not established incurable prejudice.  State v. Gouley, COA No. 54468-7-II (Sep. 7, 2021).  
 
LFO’s.  Before imposing LFO’s upon a defendant who was found to be indigent pursuant to RCW 10.101.010(3)(d), the trial court must make a sufficient inquiry into the defendant’s employment prospects, income, assets, and other matters so as to make the necessary “individualized inquiry into the defendant’s current and future ability to pay,” and whether the defendant is also indigent as defined in RCW 10.101.010(3)(a) through (c).  State v. Gouley, COA No. 54468-7-II (Sep. 7, 2021).  
 
Ex Parte Contacts and Judicial Recusal.  An entry in an electronic filing report stating that “Ex-Parte w/o Order Held,” is insufficient to raise even a mere suspicion of partiality .  The trial court properly denied the moving party’s motion to recuse where the attorney for the other party denied having any ex parte contact with the trial judge and the trial court found there was no ex parte contact between the judge and the non-moving party based on “objective and subjective evidence.” Tacoma South Hospitality, LLC v. National General Insurance Company, COA No. 55168-3-II (Sep. 7, 2021).  
 
Frivolous Appeals and Attorney Fees. Attorney fees were properly awarded to the respondent under RAP 18.9 where the appellant’s failure to perfect the record precluded the appellate court’s ability to address the respondent’s successful summary judgment motion and thereby foreclosed any possibility of reversal.  Tacoma South Hospitality, LLC v. National General Insurance Company, COA No. 55168-3-II (Sep. 7, 2021).  
 
  

Legal Update for Washington State Law Enforcement

The August 2021 edition  of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
 
Ninth Circuit
 
“May Not Patronize Any Place” Conditions.  A condition of supervised release that the defendant may not “patronize any place” where sexually explicit “materials or entertainment are the primary material or entertainment available” bars the defendant from visiting a free pornography website.  The condition is not limited to the direct purchase of goods or services from a physical location.  United States v. Green, No. 20-50257 (9th Cir. Sep. 8, 2021).  
WEEKLY ROUNDUP FOR AUGUST 27, 2021

Washington Supreme Court

Citizen Complaints. A citizen’s affidavit is insufficient to initiate criminal proceedings under the citizen complaint rule, CrRLJ 2.1(c).  The filing of such a document is insufficient to stop the running of the statute of limitations.  The document  In re Citizen Complaint by Stout v. Felix, No. 98613-4 (Aug. 26, 2021).  Justices Yu and Gordon McCloud concurred in the result.  They, however, would affirm the trial court on the grounds that the citizen complaint rule is facially unconstitutional, as it violates the separation of powers doctrine. Prosecutor Dorcy was represented by Mason County Special DPA Pam Loginsky.  The target of the citizen complaint was represented by Deputy Solicitor General Karl Smith.
 
New Formatting Rules for Appellate Court Filings.  On September 1, 2021, a new Rule of Appellate Procedure (RAP) will take effect. The new rule (RAP 18.17) will replace existing page limits with word count limits for appellate court filings. RAP 18.17 will also require the use of 14 point font. Please visit the following link for more information, https://www.courts.wa.gov/wordcount.

 

Division One

Statement of a Party Opponent.  Statements made by a deceased police officer prior to his death about his alleged perjury in a civil lawsuit were admissible in a CR 60(b)(4) motion hearings as a non hearsay statement of a party opponent (ER 801(d)(2)(i)).  Hor v. City of Seattle, COA No. 80835-4-I (Aug. 23, 2021).
 
Relief from Judgment–CR 60(b)(4).  Perjury is just one means by which “fraud, misrepresentation, or other misconduct,” necessary to vacate a judgment pursuant to CR 60(b)(4) might occur.  Hor v. City of Seattle, COA No. 80835-4-I (Aug. 23, 2021).
 

Division Two

Public Records Act.  The City’s 9-month delay between receiving two Public Records Act (“PRA”) request letters attached as exhibits to a complaint alleging a violation of the PRA, and its responding to the letters violated the PRA and merited an award of penalties and attorney fees.  The PRA request letters attached as exhibits to the complaint satisfied the “fair notice” test sufficient to trigger the City’s duty to promptly acknowledge their receipt and to begin responding to the request. The trial court, however, abused its discretion by awarding $2,607,940 in PRA penalties.  The application of a per record multiplier to a total of more than 700 records led to an extreme penalty amount that must ultimately be paid for by taxpayers.  The per resident cost of $12 was not supported in a case in which the trial court found no bad faith on the part of the City.  In addition, the time spent by the Ciry in processing its response should be excluded from the penalty calculation as the trial court never found that the City’s estimated completion date was unreasonable.  O’Dea v. City of Tacoma, COA No. 53613-7-II (Aug. 24, 2021).
 
Constitutional Right to Counsel.  A criminal defendant may only lose his constitutional right to counsel through forfeiture, waiver, or waiver by conduct.  A defendant only forfeits the right to counsel by engaging in “extremely dilatory” conduct.  “Extreme dilatory conduct” is established when a defendant completely fails to communicate with his/her attorney or the defendant is abusive or threatening to his/her attorney.  A defendant’s dissatisfaction with his appointed attorneys that results in several substitutions of counsel and multiple delays in trial does not constitute extremely dilatory conduct.  A criminal defendant does not waive his right to counsel by conduct without having been advised by the court of (1) the dangers of proceeding pro se as required for a voluntary waiver, and (2) that the defendant will lose the right to counsel if they engage in dilatory tactics or misconduct.  “Dilatory tactics or misconduct” is distinct from “extremely dilatory conduct” under forfeiture.  State v. Palmer, COA No. 52362-1-II (Aug. 19, 2021).  
 
Pro Se Criminal Defendants and Confrontation Clause.  A trial court violates a defendant’s right to self-representation, his right to the presumption of innocence, and his right of confrontation by requiring the defendant to question child witnesses through stand-by counsel, and by allowing the child witnesses to face away from the defendant while testifying without conducting the required analysis.  While a court’s order requiring stand-by counsel to question the complaining witness does not automatically violate a pro se defendant’s right of self-representation, the trial court must analyze why such changes are necessary and what impact they will have on the defendant’s rights before implementing them.   State v. Palmer, COA No. 52362-1-II (Aug. 19, 2021).  
 
Right Against Self-Incrimination.  The prosecution violated the defendant’s constitutional right to remain silent by unequivocally eliciting a comment from a detective about the defendant’s post-arrest decision to remain silent.   State v. Palmer, COA No. 52362-1-II (Aug. 19, 2021).  
 

Division Three

Waiver of Juvenile Court Jurisdiction.  RCW 13.40.110(1) permits a juvenile court to transfer a respondent to adult court for prosecution only if the charged offense is subject to a decline hearing. A juvenile cannot waive juvenile court jurisdiction beyond what the legislature has permitted to be declined to adult court for prosecution.  State v. P.M.E., COA No. 37642-7-III (Aug. 26, 2021).  
 
Felony Sentencing.  Defendant who was 28-years-old when he was convicted of first degree murder, attempted first degree murder, and six counts of first degree assault, all with firearm enhancements, had his original sentence of 138 years reduced to approximately 76 years during a resentencing that resulted from an offender score error.  At resentencing, the trial court properly determined that rehabilitation does not qualify as a mitigating factor under the Sentencing Reform Act, and firearm enhancements cannot run concurrently as an exceptional sentence for defendants who committed their crimes after their 18th birthday.  The defendant’s request for an even lower sentence can only be granted by the executive branch or the legislature.  State v. Wright, COA No. 37445-9-III (Aug. 24, 2021).
 
Unlawful Possession of a Stolen Vehicle.  A charging document for a violation of RCW 9A.56.068(1) must include both knowledge components of the crime: that the defendant knowingly possesses the motor vehicle and that the defendant acted with knowledge that the motor vehicle was stolen.  Knowledge cannot be inferred from the use of “unlawfully” in the context of a possession of stolen property charge.  A moped meets the statutory definition of a motor vehicle for purposes of RCW 9A.56.068(1).  State v. Level, COA No. 37463-7-III (Aug. 24, 2021).  
 
 

Washington Attorney General Opinions Requests for Comment

Potential Impeachment Information.  Opinion Docket No. 21-07-02 : Request by Gregory Banks, Prosecuting Attorney, Island County.  The Attorney General’s Office seeks public input on the following opinion request: “Where a prosecutor knows of information about a law enforcement officer that constitutes potential impeachment evidence, under what circumstances may the officer’s information or name be removed from any list of potential impeachment disclosures?”  If you are interested in commenting on this request, you should notify the Attorney General’s Office by September 3, 2021. 
 
E2SHB (Officer Use of Force).  Opinion Docket No. 21-08-02.  Request by Representatives Roger Goodman and Jesse Johnson.  The Attorney General’s Office seeks public input on the following questions:
 
1.         What constitutes “physical force” in the context of the standard in E2SHB 1310?
 
2.         Does the standard in E2SHB 1310 preclude an officer from using physical force in the context of an investigatory detention (based on reasonable suspicion and not probable cause) when it becomes apparent that an individual will not otherwise comply with the request to stop?
 
3.         In light of the standard in E2SHB 1310, are the provisions of Chapter 71.05 RCW, Chapter 13.34 RCW, Chapter 43.185C RCW, and other statutes and court orders (civil or criminal) authorizing or directing a law enforcement officer to take a person into custody to be interpreted as authorizing the officer to use physical force when necessary for that purpose?
 
4.         In light of the standard in E2SHB 1310, is a law enforcement officer authorized to use physical force pursuant to the emergency aid doctrine, where there is no “imminent threat of bodily injury to the officer, another person, or the person against whom force is being used”? Does using physical force in this manner breach a legal duty to leave the scene, and would an officer’s efforts constitute an exception to the Public Duty Doctrine under the rescue doctrine?
 
5.         Read together, does section 3(3) of E2SHB 1310 effectively authorize a law enforcement officer to use a chokehold or neck restraint “to protect against his or her life or the life of another person from an imminent threat” despite the specific prohibition of such tactics in section 2 of Engrossed Substitute House Bill 1054 (2021)?
 
6.         How should the terms “possible, “available,” and “appropriate” in section 3 of E2SHB 1310 be interpreted? Should those terms be interpreted according to their common definitions or according to the “reasonable officer” standard established under Graham v. Connor, 490 U.S. 386 (1989), which provides that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”?
 
Comments that address the interpretation of the law are welcomed. Although there is no deadline for submitting comments, comments are the most helpful if received by September 25, 2021. 
 
 

Ninth Circuit

Eviction Moratoria and the Contracts Clause.  A trade associations of landlords challenge to the city’s eviction moratorium, imposed, in response to the COVID-19 pandemic, are not entitled to a preliminary injuction enjoining key provisions or the moratorium as violating the Contracts Clause, due to the association’s failure to show the likelihood of success on the merits. Even if the eviction moratorium was a substantial impairment of contractual relations, the district court did not err in determining that the moratorium’s provisions were likely “reasonable” and “appropriate” given the circumstances of the COVID-19 pandemic.  Apartment Association of Los Angeles County, Inc. v. City of Los Angeles, No. 20-56251 (9th Cir. Aug. 25, 2021).
 

Sixth Circuit

Mask Mandates and Free Exercise of Religion.  A statewide indoor mask requirement that was imposed to control the spread of COVID-19, does not violate a Catholic Elementary School or the enrolled children’s free exercise of religion, equal protection, or substantive due process rights.  Resurrection School v. Hertel, No. 20-2256 (6th Cir. Aug. 23, 2021).  
 
Chalking Tires.  Chalking car tires to enforce parking regulations is a search under the Fourth Amendment that does not fall within the community caretaking exception, the motor vehicle exception, or the administrative search exception to the warrant requirement.  Taylor v. City of Saginaw, No. 20-1538 (6th Cir. Aug. 25, 2021).
WEEKLY ROUNDUP FOR AUGUST 20, 2021

Washington Supreme Court

 
The Washington Supreme Court has published a number of proposed new rules and amendments to existing rules for comment. All comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail. Comments should be received no later than the end of the comment period identified below. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words.  This word limit does not apply to letters sent to the court as an attachment to an e-mail.
 
 

Division Two

Persistent Offender Accountability Act.  The defendant’s collateral attack claiming that the Persistent Offender Accountability Act (POAA) violates the cruel punishment provision of article I, section 14 of the Washington Constitution because it requires a life without possibility of release sentence even when one of the predicate strike offenses was committed as a juvenile, is untimely under RCW 10.73.090.  The personal restraint petition does not fall within the exception to the one-year bar contained in RCW 10.73.100(2) because the defendant challenges only the constitutionality of the POAA, not the statute under which he was convicted.  The claim does not fall within the RCW 10.73.100(6) exception because the holding of State v. Bassett, 192 Wn.2d 67m 428 P.3d 343 (2018), is not material to the defendant’s POAA sentence which was imposed for an offense he committed when he was an adult.  In re Personal Restraint of Williams, COA No. 53879-2-II (Aug. 17, 2021).
 
 

Massachusetts Supreme Judicial Court Court

Jury Selection.  Sexual orientation is a protected class for purposes of a Batson challenge.   “[I]t is neither appropriate nor encouraged for judges or parties to ask prospective jurors their sexual orientation.”   Commonwealth v. Carter, No. SJC-11517 (Mass. Aug. 16, 2021).  
 
 

North Carolina Supreme Court

Personal Jurisdiction and Protection Orders. “Before the advent of mobile telephone technology and before call forwarding was available, a person making a telephone call would know the approximate physical location of anyone who answered the phone based on the area code and prefix of the telephone number they dialed. However, the number of landlines is rapidly dwindling, and a person’s phone number alone no longer provides a reliable indication of that person’s location.”  A telephone call to the cell phone of a victim who just relocated into a new state cannot allow a court to exercise personal jurisdiction over the caller with respect to a petition for a domestic violence protection order.  Mucha v. Wagner, 2021-NCSC-82 (N.C. Aug. 13, 2021).
 
 

California Lawyers Association

Ethical Screens.  This opinion addresses the elements of ethical screens that effectively comply with the Rules of Professional Conduct. California Rules of Professional Conduct, rule 1.0.1(k) provides a definition of a screen that, while helpful, does not provide a detailed roadmap for a law firm instituting an ethical screen. Whether a screen is effective at meeting these standards must be determined on a case-by-case basis. But four required elements are (1) timely imposition of the screen, (2) prohibitions of communications across the screen, (3) no fee-sharing with prohibited persons, and (4) notice to affected clients. Other factors that may be considered when evaluating the efficacy of a screen include the physical and operational separation of those on each side of the screen, limitation of prohibited individuals’ access to the screened matter’s file, the communication employed within the firm regarding its terms, negative internal consequences for violations of the terms, and the monitoring of the screen. This opinion does not consider the circumstances under which conflicts may be addressed through an ethical screen where a waiver is obtained. California Lawyers Association Ethics Committee, Formal Opinion No. 2021-1 (Feb. 11, 2021). [Editor’s Note: Washington RPC 1.0A(k) is substantially similar to California RPC 1.0.1(k).]
 
 
WEEKLY ROUNDUP FOR AUGUST 13, 2021

Washington Supreme Court

Homestead Act and Impoundment of Vehicles.  RCW 6.13.040(1) automatically protects occupied personal property, such as a vehicle being used as a person’s primary residence.  The homestead exemption protects such a vehicle up to the sum of fifteen thousand dollars. The homestead act does not prohibit the impoundment of an illegally parked vehicle, but it does apply to the attachment, execution, or forced sale of the vehicle to pay any costs related to the impoundment. “Homestead protections are resolved upon enforcement, not issuance, of a parking ticket or impoundment of a vehicle.”  Impoundment of a vehicle that has been unlawfully parked for a period of time pursuant to a statute that authorizes an impoundment is reasonable and lawful under article I, section 7 when the vehicle is inoperable. Impoundment of a vehicle and associated costs are subject to the federal excessive fines clause because both are partially punitive.  Critical to the proportionality analysis under the excessive fines clause is a person’s ability to pay.   The actual cost associated with the impoundment and storage of the vehicle will not insulate the charges from being excessive.   City of Seattle v. Long, No. 98824-2 (Aug. 12, 2021).  Justices González, Yu, and Whitner concurred in the result but would hold that the homestead act precludes the towing of the vehicle in the first instance. 
 
 

Division One

Offender Score: Out-Of-State Simple Possession Convictions.  An out-of-state conviction for drug possession may not be included in the calculation of an offender score as there is no longer a comparable Washington offense after Blake declared Washington’s strict liability simple possession statute to be unconstitutional. State v. Markovich, COA No. 81423-1-I (Aug. 2, 2021). [Editor’s Note: This opinion dealt only with convictions from other states.  A specific statute, RCW 9.94A.525(3) treats federal convictions for crimes for which there is no clearly comparable offense under Washington law as a class C felony equivalent in the offender score.  Federal simple drug possession felonies should, therefore, continue to be included in the offender score.]
 
Right to Present a Defense. The trial court did not violate the defendant’s right to present a defense by prohibiting the defendant’s expert from rendering an opinion that lacked a proper foundation.  Although the defendant stated he had suffered a head injury, he was not  diagnosed with a concussion at the booking intake.  State v. Markovich, COA No. 81423-1-I (Aug. 2, 2021).
 
Essential Elements: No Contact Order Violations. A charging document for a violation of an RCW 10.99.050 no contact order must allege both that the defendant knew about the order and that the defendant willfully/knowingly violated the order.  A charging document for an attempted violation of an RCW 10.99.050 no contact order must include both knowledge of the order and an intent to do a substantial step toward violating the order.   State v. Briggs, COA No. 81248-3-I (Aug. 2, 2021).
 
Involuntary Treatment. A less restrictive treatment  order (LRO)  may be revoked for failure to comply with a term and condition of the order.  The designated crisis responder (DCR) is not required to follow a specific process in deciding whether to file a motion to revoke the LRO.   In re Detention of B.M., COA No. 81518-1-I (Jun. 14, 2021, publication ordered Jul. 28, 2021).  
 
Discarded DNA.  The admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.  The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.  State v. Bass, COA No. 80156-2-1 (Aug., 2, 2021). [Editor’s Note: This opinion supersedes the opinion that was originally filed on June 1, 2021)].
 
Sufficiency of the Evidence.  Substantial circumstantial evidence was sufficient to prove that the defendant committed the predicate offenses of rape and kidnap, and that he caused the victims death in the course of either crime. Neither the absence of vaginal wounds, defensive wounds, foreign DNA, or physical restraints renders the evidence insufficient.  State v. Bass, COA No. 80156-2-1 (Aug., 2, 2021). [Editor’s Note: This opinion supersedes the opinion that was originally filed on June 1, 2021)].
 
Ex Post Facto and Due Process.  The trial court erred in applying a 1990 version of the felony murder statute to a 1989 crime.  The error, however, was harmless beyond a reasonable doubt.  While the 1990 amendment to the felony murder which only required that the death occurred “in the course of or in furtherance” of the predicate crime, was a material change from the 1989’s requirement that the death occurred “in the course of and in furtherance of the predicate crime, as the predicate crime of kidnapping is a continuing course of conduct crime.  State v. Bass, COA No. 80156-2-1 (Aug. 2, 2021).  [Editor’s note: This opinion supersedes the opinion that was originally filed on June 1, 2021).  When dealing with an older case it is strongly recommended that the prosecutor collect the version of the statutes, both sentencing and substantive law, that were in effect on the day the crime was committed.  These statutes will govern jury instructions, sentencing options, and a myriad of other factors.]  
 
Ineffective Assistance of Counsel.  Counsel’s failure to object to the admission of evidence at trial is presumed the product of legitimate trial strategy or tactics.  A defendant can only rebut this presumption by establishing the absence of any conceivable legitimate tactic explaining counsel’s performance.  Defendant did not satisfy this burden as to testimony from a State expert that mentioned opinions of a non-testifying expert, as the defense expert tendered similar testimony in an attempt to bolster her opinions.  As to testimony from two family members, defense counsel properly refrained from objecting as the challenged statements were not impermissible opinions on the defendant’s guilt. State v. Bass, COA No. 80156-2-1 (Aug., 2, 2021). [Editor’s Note: This opinion supersedes the opinion that was originally filed on June 1, 2021)]..
 
Right to Present a Defense.  The victim’s diary was properly excluded because the defendant’s theory that the entries supported his theory that the victim’s depression equates to either attempted suicide or sucide itself, lacked sufficient foundation was speculative.   State v. Bass, COA No. 80156-2-1 (Aug., 2, 2021). [Editor’s Note: This opinion supersedes the opinion that was originally filed on June 1, 2021)].
 
Judicial Comment on the Evidence.  The trial court did not violate art. IV, § 16 of the Washington Constitution when, in response to a prospective juror’s question, indicated that witnesses called to testify at trial have testimony that is relevant.  This statement, which was an explanation of ER 402 as it applied to witness testimony,  did not reveal the court’s attitudes toward the merits of the case.   State v. Bass, COA No. 80156-2-1 (Aug., 2, 2021). [Editor’s Note: This opinion supersedes the opinion that was originally filed on June 1, 2021)].
 
 

Division Two

Confrontation and Forfeiture By Wrongdoing Doctrine. A defendant’s veiled phone calls asking numerous people to “fix” the situation, his assurance that the victim would recant, his misdirected text message to the victim telling her to recant, his requests in another case involving the same victim that she recant, and his assurance to his supporters that the victim would not be found in order to testify, coupled with the State’s good faith efforts in the form of mailing a subpoena, attempting personal service, and issuing a material witness warrant, justified the application of the forfeiture by wrongdoing doctrine.  State v. Brownlee, COA No. 53753-2-II (Apr. 20, 2021, publication ordered Aug. 10, 2021).  
 
Time for Trial.  A brief trial continuance due to the assigned deputy prosecuting attorney was occupied in another trial did not violate the defendant’s time for trial right under CrR 3.3.  State v. Brownlee, COA No. 53753-2-II (Apr. 20, 2021, publication ordered Aug. 10, 2021).  
 
Public Records Act.  The one-year statute of limitations in RCW 42.56.550(6) begins to run on the day after the agency’s final action.   Bogen v. City of Bremerton, COA No. 54656-6-II (Aug. 10, 2021).  
 
Involuntary Commitments.  A detainee does not have a constitutional right to a jury trial on his 180-day recommitment order. A detainee may not assert the trial court’s failure to notify him of his statutory right to a jury trial and to obtain a waiver of the statutory right to a jury trial for the first time on appeal.  In re the Detention of M.S., COA No. 54665-5-II (Aug. 3, 2021).  
 
Involuntary Treatment With Antipsychotic Medications.  There is insufficient evidence in the record to satisfy the clear, cogent, and convincing standard to override the detainee’s right to refuse consent for antipsychotic medications.  While the detainee’s “acting out” including throwing his dinner at staff, screaming at staff, and swinging at a nurse, the testimony merely indicated that the detainee may benefit from the treatment– not that the treatment would prevent a substantially longer period of detention.    In re Detention of P.R., COA No. 54643-4-II (Aug. 3, 2021).  
 
 

Division Three

Restoration of Firearm Rights. An adult may file a petition for restoration of firearm rights in juvenile court, when the juvenile court revoked the rights at the time that the petition was a juvenile. A superior court clerk may not adopt a practice that binds a petitioner to file a motion to restore firearm rights under a new civil action cause number and to pay a filing fee.  An adult petition who files a petition for restoration of firearm rights in juvenile court may only have the petition filed if s/he can satisfy the Ishakawa requirements.  When entering the actual restoration order and when addressing the sealing of an application to restore firearm rights, the judge hearing the case should “sit in the superior’s court’s general jurisdiction.”  State v. B.B., COA No. 37820-9-III (Aug. 3, 2021).
 
Excessive Impact of the Multiple Offense Aggravator.  The trial court has the discretion to impose an exceptional sentence below the standard range when consecutive firearm sentences overstates the seriousness of the defendant’s conduct. Prior case law which focused upon whether the effect of additional crimes is “nonexistent, trivial, or trifling,” is no longer applicable.  Instead, whether operation of the multiple offense aggravator results in a clearly excessive sentence turns on analysis of the purposes of the SRA, as expressed in RCW 9.94A.010.  Operation of the multiple offense aggravator results in excessive punishment does not require finding that the prosecution engaged in misconduct, or whether the defendant’s sentence is excessive when compared to other individuals convicted or charged with similar crimes.    State v. McFarland, COA No. 37422-0-III (Jul. 29, 2021).
 
 

Legal Update for Washington State Law Enforcement

The July 2021 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
 
 

Ninth Circuit

Treaty Hunting Rights. The Snoqualmie Indian Tribe and the Samish Indian Nation are not  signatories to the Treaty of Point Elliott.  The Snoqualmie and the Samish have  no off-reservation hunting and gathering rights under the Treaty of Point Elliott.  Snoqualmie Indian Tribe v. State of Washington, No. 20-35346 (9th Cir. Aug. 6, 2021).  
 
Competency.  The trial court did not err in denying repeated motions for a competency hearing where the evidence revealed a consistent pattern of intentionally disrupting the proceedings and feigning incompetence to avoid trial and later, sentencing.  United States v. Telles, No. 19-10218 (9th Cir. Jul. 29, 2021).
 
 

Fifth Circuit

Deadlines and E-Filing.  No relief is available to an attorney who fails to respond to a motion because the electronic notification of the motion goes into a spam folder or a folder that is not regularly monitored. Rollins v. Home Depot, USA, Inc., No. 20-50736 (5th Cir. Aug. 9, 2021).  
WEEKLY ROUNDUP FOR JULY 30, 2021

Washington Supreme Court

Credit for Pre-Trial Detention. An offender is not entitled to credit for time held on a pending charge if they simultaneously were serving time on a sentence already imposed in another case. Nor are they entitled to credit on a charge for time they are also serving on a parole or probation violation.  An offender is, however, entitled to credit for time served for pre-trial detention in all pending cases up until the imposition of a sentence in the first case.  State v. Enriquez-Martinez, No. 99101-4 (Jul. 29, 2021).  The State was represented by Klickitat County Prosecuting Attorney David Quesnel and Klickitat County DPA Rebecca Cranston.
 

Division One

Consensual Seizures.  In a case in which the court assumes, without deciding, that a public transit passenger is subjected to a warrantless seizure  when a fare enforcement officer requests proof of fare payment, the court holds that consent is an exception to article I, § 7’s warrant requirement.  By boarding a public bus and accepting transportation, a passenger consents to a warrantless/suspicionless seizure consisting of a fare enforcement officer’s request, while the bus is in transit between stops, that the passenger provide proof of payment.   State v. Meredith, COA No. 81203-3-I (Jul. 26, 2021).
 
Alien in Possession of a Firearm.  “Knowing possession” is an implied element of the crime of alien in possession of a firearm, RCW 9.41.171.  This element must appear in the “to convict” instruction, and should be added to the charging document.  State v. Barrera Flores, COA No. 81149-5-I (Jul. 26, 2021).
 
Involuntary Commitments.  The due process rights of a detainee were not violated when the court allowed entries made in the detainee’s medical records during his initial 14-day commitment to be read into the record, and considered in deciding whether the detainee should be committed for an additional 90 days.  The medical records satisfied the hearsay business record exception and other existing procedural safeguards sufficient protected the detainee’s liberty interest. State v. L. H., COA No. 81523-7-I (Jul. 26, 2021).  
 
 

Washington Pattern Instructions

A Fifth Edition of the WPIC has been issued.  This edition includes new instructions for hate crimes and other significant changes.  A free edition of the Fifth Edition is available here.  You may find a summary of the changes here.
 
WEEKLY ROUNDUP FOR JULY 23, 2021

Division One

Trial Security.  Neither requiring jurors to go through secondary screening on the first day of trial nor posting the court’s order on courtroom security on the courtroom door was inherently prejudicial.  The secondary screening, which was ordered in a gang murder in which one of the State’s witnesses had been shot and another assaulted, was ordered to ensure no cameras or cell phones made it into the courtroom.  Placement of the secondary screening at the entrance of the hallway to four courtrooms, rather than outside the specific courtroom was an important factor in the analysis. State v. Bejar, COA No. 81166-5-I (Jul. 19, 2021).  
 
Public Duty Doctrine.  The public duty doctrine does not apply in the context of a local government’s alleged negligence in responding to a 911 call for emergency medical assistance.  Norg v. City of Seattle, COA No. 80836-2-I (Jul. 19, 2021).
 
Due Process and Videoconference Proceedings.  A parent’s due process rights were satisfied in a termination trial that was conducted remotely by videoconference and teleconference  where the parent was given the option of appearing in person, and the parent was able to consult with his attorney through the use of private breakout rooms.   In re the Dependency of J.D.E.C., COA No. 81795-7-I (Jul. 19, 2021).  
 

Court Form Update

The Administrative Office of the Courts has updated and removed court pattern forms on the Washington Court Forms homepage (https://www.courts.wa.gov/forms/). You may not be able to locate all the updated forms at the link provided above. However, we are working to improve those options over time. You may access a list of all forms at: https://www.courts.wa.gov/forms/?fa=forms.static&staticID=14
 
Most of the updated forms have an effective date of July 25, 2021, coinciding with the effective date of newly passed legislation. Please review the summary of changes for more details about the form changes and effective dates at https://www.courts.wa.gov/forms/?fa=forms.static&staticID=2. (Please note that the “mental proceedings” forms and summary of changes have been categorized under a new category titled “behavioral health.”)
 
The following form sets were updated, and the quick links to them are provided below:
 
Proposed changes to the CrR4.2(g) Statement of Defendant on Plea of Guilty are posted for comment. The proposed changes are located here.
 
To provide feedback about the court forms or the summary of changes, please complete AOC’s online form at: http://www.courts.wa.gov/forms/?fa=forms.formsComments.
 
 
WEEKLY ROUNDUP FOR JULY 16, 2021

Washington Supreme Court

 
Charter Counties and Inquests in Officer Use of Force Incidents.  The Executive’s authority to conduct coroner’s inquests includes the power to establish the procedures by which those inquests are conducted, as long as those procedures are consistent with applicable state and county law. An executive order may not prevent the issuance of a subpoena to the law enforcement officers involved in the deaths or to any other person who the coroner or any inquest juror believes has “any knowledge of the facts” relevant to the death being investigated. The inquest jury must be allowed to indicate whether the person was killed by criminal means.  The inquest process (and all coroner inquests)  may include prehearing discovery.  Subpoenas for the inquest must be requested from the superior court. In officer involved shooting, the inquest jury may render a verdict as to whether the officers complied with their training and departmental policies.  The inquest jury may hear testimony and evidence from outside expert witnesses as the coroner or inquest jury deem relevant.  The coroner may make the inquest proceedings accessible to the public, including by livestreaming. Law enforcement officers who are called to testify at an inquest may assert their Fifth Amendment privilege against self-incrimination on a question-by-question basis.  The Sixth Amendment right to counsel does not apply to investigatory proceedings like coroner’s inquests.    Family of Butts v. King County Exec. Constatine, No. 98985-1 (Jul. 15, 2021). 
 
Necessity Defense.  A defendant, who has attempted to challenge perceived harms through the political process without success, may present a necessity defense in a prosecution, if the defendant also establishes that (1) he reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm he sought to avoid was greater than the harm resulting from the violation of the law, and (3) the threatened harm was not brought about by the defendant.  State v. Spokane County Dist. Court, No. 98719-0 (Jul 15, 2021).  The State was represented by Spokane County DPA Stephanie Richards. 
 
Judicial Disqualification.   An RCW 4.12.050 notice of disqualification is untimely when filed after a superior court judge exercises his or her discretion to grant a writ of review pursuant to RCW 7.16.080.  This rule applies in cases in which the judge grants the writ in an ex parte proceeding.  State v. Spokane County Dist. Court, No. 98719-0 (Jul 15, 2021).  The State was represented by Spokane County DPA Stephanie Richards. Justices Gordon-McCloud and Whitener dissented on this point.
 

Ninth Circuit

 
Judicial Immunity. Judicial immunity shields a judge from liability under the Americans with Disabilities Act claim and for appointing a guardian ad litem on a questionable basis and without a prior hearing.  Lund v. Cowan, No. 20-55764 (9th Cir. Jul. 15, 2021).  
 
 

Fourth Circuit

Second Amendment.  Eighteen- to twenty-year-olds have Second Amendment rights, and laws that make 21 the minimum age to purchase handguns from federally licensed gun dealers impermissibly burden those rights.  Hirschfeld v. ATF, No. 19-2250 (4th Cir. Jul. 13, 2021).
WEEKLY ROUNDUP FOR JULY 9, 2021

Division One

Right to Be Present.  While a defendant has a constitutional right to be present when the court is responding to a declaration from a jury that they are “deadlocked,” a jury question of “if we are unable to reach a verdict on a count, what happens,” does not require the defendant’s presence to address.  State v. Wright, COA No. 80348-4-I (Jul. 6, 2021).
 
Second Degree Assault.  Strangulation and suffocation is one of the seven alternative means of committing assault in the second degree.  They are two facets of the same criminal conduct and are not themselves separate alternatives means of committing second degree assault.  Although the jury was instructed that strangulation and suffocation were alternative means, the error was harmless as thre was sufficient evidence to support a conviction for strangulation.  State v. Christian, COA No. 80045-1-I (Jul. 6, 2021) (this opinion replaces the June 1, 2021 opinion). 
 
Interfering With the Reporting of Domestic Violence. Interfering with the reporting of domestic violence is a strict liability crime.  A unanimity instruction is not required when the defendant’s acts form a continuous course of conduct.  Here, the defendant’s acts which all occurred on the same day, in the same apartment, and against the same victim – preventing the victim from calling 911 by taking the victim’s phone, pulling the victim off of the balcony while she screamed for help, and yelling “no” to the police’s request to open the door – all had the same objective – to interfere with the victim’s resporting of domestic violence. State v. Christian, COA No. 80045-1-I (Jul. 6, 2021) (this opinion replaces the June 1, 2021 opinion).  
 
Motion for Mistrial.  The prosecution’s failure to adequately inform a witness of the court’s pre-trial rulings limiting that witness’s testimony will weigh heavily in favor of granting a defense motion for a mistrial based upon that witness’s repeated violations of those limitations.  The trial court’s denial of the defendant’s motion for mistrial based upon the State’s expert witness’s three violations – references to defendant’s request for a lawyer, the defendant’s criminal history, and the defendant’s history of substance use – was error where the primary question for the jury was whether the defendant was able to form the requisite mental state for the charged crimes.  State v. Taylor, COA No. 80343-3-I (Jul. 6, 2021).
 
Jury Selection.  The trial court properly denied a defense for cause challenge to a prospective juror who was a volunteer with San Juan Emergency Medical Service and had sometimes worked together with a witness that the State expected to call in its case in chief, as the juror expressly indicated that he could put his own training and experience aside and give the expert opinions more weight than his knowledge and her further declared that he would “trust the facts.”  State v. Taylor, COA No. 80343-3-I (Jul. 6, 2021).
 
Diminished Capacity Jury Instruction.  Because the definition of “recklessness” includes the more serious mental state of “knowledge,” it is error to decline a defendant’s request to include the mental state of recklessness in the diminished capacity instruction.   State v. Taylor, COA No. 80343-3-I (Jul. 6, 2021). [Editor’s note: WPIC 10.03 defines states that “A person is reckless or acts recklessly when he or she knows of and disregards a substantial risk that [a wrongful act] [(fill in more particular description of act, if applicable)] may occur and this disregard is a gross deviation from conduct that a reasonable person would exercise in the same situation.”]
 
Sentencing of Defendants Who Commit Their Crimes Prior to Their 18th Birthday.   Article I, section 14 of the Washington Constitution confers on sentencing courts the discretion to impose a determinate sentence for a crime subject to an indeterminate sentence under RCW 9.94A.507.  Personal Restraint of Forcha-Williams, COA No. 79041-2-I (Jul. 6, 2021).
 
CrRLJ 4.7/CrR 4.7.  A defendant is not required to show materiality or prejudice in order to obtain the suppression of evidence for a violation by the prosecution of its CrRLJ 4.7 obligations.  The prosecution’s responsibility under CrRLJ 4.7(a)(3) and CrR 4.7(a)(3) to “disclose to defendant’s lawyer any material or information within his or her knowledge which tends to negate defendant’s guilt as to the offense charged,” is broader then the information that must be disclosed pursuant to Brady.  The prosecution’s responsibility extends to potential impeachment information about any witness the prosecution intends to call. City of Seattle v. Lange, COA No. 78071-9-I (Jul. 6, 2021). 
 
Unredacted Driving Records.  In a prosecution for driving without an Ignition Interlock Device (IID) the issue is whether there is an IID imprint or notation on the defendant’s Department of Licensing record, not the validity of the notation. The same principle applies to license suspensions under the Seattle Municipal Code.  The trial court, therefore, abused its discretion by refusing to redact the irrelevant and prejudicial portions of the defendant’s driving license unless the defendant entered into an Old Chief-like stipulation and/or be denying the defendant’s motion to sever the DWLS and IID counts from the DUI charge. City of Seattle v. Lange, COA No. 78071-9-I (Jul. 6, 2021). 
 
ER 404(b). Evidence that completes the story of the crime charged or provides immediate context for events close in both time and place to that crime is not subject to the requirements of ER 404(b).  The trial court properly denied the defendant’s motion to exclude evidence that he was involved in a shooting that occurred roughly 25 minutes after the robbery as the evidence was relevant to proving that the defendant was armed with a deadly weapon during the robbery.   State v. Sullivan, COA No. 81254-8-I (Jul. 6, 2021).  
 
Sufficiency of the Evidence.  The evidence was sufficient to establish that the defendant or his accomplice was armed with a deadly weapon during the robbery where (1) an enlarged image from a video captured by a bystander would allow a rational trier of fact to  infer that, during the robbery, the defendant had  a firearm located on the exterior of his shirt that was pressed against his stomach, (2) approximately 25 minutes later, at the time of the shooting, another video captured the defendant with his right arm extended forward, holding an object, which resembled a pistol in his right hand, (3) bullet cases were recovered from the scene of the shooting that did not match any of the firearms recovered at the scene of the shooting, and (4) five days after the shooting, police officers found, inside a garbage bag at an apartment inhabited by the defendant’s girlfriend, three .40 caliber Hornady bullets, an empty box of ammunition, and mail addressed to the defendant.  The evidence was sufficient to support the jury’s determination that the defendant was an accomplice to the robbery as he was armed with a deadly weapon during the robbery and video established that he moved to a position at the victim’s feet as his accomplice beat the victim while the victim laid on the ground. State v. Sullivan, COA No. 81254-8-I (Jul. 6, 2021).  
 
Appearance of Fairness.  The trial judge’s statements regarding the merits of defense counsel’s motion to exclude evidence did not violate the appearance of fairness doctrine because the judge did not express an opinion as to whether the defendant was guilty of any offense. State v. Sullivan, COA No. 81254-8-I (Jul. 6, 2021).  
 

Division Two

Practicing Massage Without Licenses.  RCW 18.130.190(7) (unlawful practice of a 
profession without a license) and RCW 18.108.035 (permitting an unlicensed employee to practice 
massage) are not concurrent statutes for purposes of the “general-specific” rule.  A person can violate RCW 18.108.035 without necessarily violating RCW 18.130.190(7).  The two statutes do not conflict as they address different conduct – the gross misdemeanor/felony statute criminalizes unlicensed massage by people who themselves give unlicensed massages or those who are so closely involved in the practice of unlicensed massage that they can be convicted as accomplices because they knowingly facilitated the offense, RCW 18.130.190(7) and RCW 9A.08.020(3), while the  misdemeanor applies to owners of massage businesses who merely knew or should have known their employees were unlicensed and allowed or permitted the employees to give massages. RCW 18.108.035  State v. Zheng, COA No. 54103-3-II (Jul. 7, 2021). 
 
 

Legal Update for Washington State Law Enforcement

The   June 2021 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
 
 

Washington Association of Sheriffs and Police Chiefs

The Crime in Washington 2020 Annual Report was released on July 7, 2021.  The entire report may be found here.  WASPC’s Executive Director Steven D. Strachan provided this information in a letter accompanying the release of the report:
 
The report shows that in 2020 murders were up almost 47% and have increased overall 67% since 2016. Manslaughter went up 100%, fraud increased by 131%, while drug and narcotic offenses, and reported hate crimes were down slightly. The total number of commissioned officers statewide was down from 1.24 per thousand to 1.19 per thousand people. Washington is ranked 51st out of the 50 states and District of Columbia for the number of officers per thousand people. Reported cases of officers assaulted was up 6% in 2020 and has increased 67% since 2016.
 
Facts at a Glance
 
•The total population for the State of Washington is 7,656,066. 
•There were 302 murders in 2020; this is an increase of 46.6% compared to 206 murders in 2019. Murders have increased overall 66.9% since 2016. 
•There were 59,134 fraud offenses in 2020; this is an increase of 131.3% compared to 25,562 fraud offenses in 2019. The significant increase in fraud activity in 2020 was due in part to fraudulent unemployment claims related to the pandemic. 
•A total of 468 hate crime incidents were reported, down slightly from 2019 (a decrease of 13.1%).
•A total of 22,070 persons were arrested for DUI, including 172 juveniles. 
•Drug and narcotic abuse incidents were lower in 2020 (a decrease of 22.7%). 
•There were 8,200 arrests for Drug/Narcotic violations; of that number 4.2% were persons under 18 years of age. 
•Possessing/concealing of heroin constituted 23.6% of the total drug abuse incidents; the distributing/selling of heroin accounted for 3.5% of incidents (type of criminal activity can be entered three times in each incident). 
•Full-time commissioned officers totaled 11,231.
•There was a total of 2,047 assaults on law enforcement officers, this is an increase of 6.2% compared to 1,927 assaults in 2019. 
•Two officers were killed in the line of duty, Washington State Trooper Justin Schaffer and Bothell Officer Jonathan Shoop. 
•There was a total of 59,289 domestic violence offenses reported; 13,909 of these offenses were Violations of Protection or No Contact Orders. 
•Domestic Violence offenses made up 49.7% of all Crimes Against Persons and 2.7% of all Crimes Against Property. 
•There were 5,432 sexual offenses (forcible and non-forcible) reported in 2020. There was a total of 5,432 victims in these incidents: with a total of 5,026 offenders.
 

Washington State Ethics Advisory Committee

Nepotism and Pro Tem Appointments.  The child of a GR 29 Presiding Judge may not appoint his or her child as a judge pro tem in the presiding judge’s court.  The child of a judge other than the presiding judge, may be appointed as a judge pro tem, provided the court uses objective selection protocols and objective supervisory protocols, and the parent judge abstains from any part of the process that recommends or confirms the appointment and the parent judge has no supervisory authority over the judge’s child. If, however, the judge parent is the court’s Assistant Presiding Judge, the judge’s child may not be appointed or act as a judge pro tem in the court while the judge parent is the Acting Presiding Judge.  Ethics Opinion 21-03 (July 2021). [Editor’s Note: These same rules apply to the appointment of commissioners, pro tem commissioners, and other judicial officers.  See CJC 2.13(A)(2)).

 

Ninth Circuit

Emergency COVID-19 Restrictions.  The governor had the lawful authority under RCW 43.06.010(12) to issue Proclamation 20-05, as the pandemic was both a public disorder and a disaster affecting live and health in Washington.  L&I acted within its scope of authority when it promulgated an emergency rule, WAC 296-800-14035, as part of the state’s efforts to curb the pandemic.  The executive branch’s actions did not violate the principle of separation of powers with regard to the legislative branch or the judicial branch.  The actions of the state-level entities did not unlawfully impinge on the authority of county health officials.  The substantive due process rights of the waterpark, its owners, and its employees were not violated by the governor’s and L&I’s actions. The right to pursue a common calling or use property as one wishes are not considered fundamental rights and the governor and L&I provided a rational basis for the proclamations and related rules. Slidewaters LLC v. Washington State Department of Labor and Industries, No. 20-35634 (9th Cir. Jul. 8, 2021).
WEEKLY ROUNDUP FOR JULY 2, 2021

Washington Supreme Court

Cell Site Location Information. There was a sufficient nexus between the defendant’s seized phone records and the suspected criminal activity to support the issuance of a search warrant where the defendant used the phones associated with the phone numbers with both his probation officers and various businesses, he had the phones around the time of the burglary based upon specific facts suggesting he used the phone days before and after the date in question, there was evidence that the defendant burgled the jewelry store, and the defendant trafficked distinctive pieces stolen from the store. Taken together, this is sufficient to raise a reasonable inference that evidence of burglary would be found in the cell site location information.  State v. Denham, No. 98591-0 (Jul. 1, 2021).  Justices Whitener, Johnson, Madsen, and Stephens  dissented on this point.  The State was represented by King County DPA Dennis McCurdy.  
 
Prior Bad Acts.  Prior bad act evidence is relevant if it makes a fact of consequence more likely.  This is not limited to specific elements of the crime.  State v. Denham, No. 98591-0 (Jul. 1, 2021).  The dissenting justices, Justices Whitener, Johnson, Madsen, and Stephens, do not address this point in their dissent. The State was represented by King County DPA Dennis McCurdy.  
 
The Court granted review of the following cases this week:
 
Domestic Violence.  State v. Abdi-Issa, No. 99581-8.  King County–State’s Petition.  Question presented: When a domestic violence abuser deliberately and brutally kills his girlfriend’s dog, is the girlfriend a “victim” of his crime for purposes of  domestic violence law under chapter 10.99 RCW as well as for purposes of imposing an aggravated sentence under chapter 9.94A RCW? COA opinion is unpublished.  Petition for review pleadings  available here.
 
Racial Covenants.  May v. County of Spokane & Vicky Dalton, No. 99598-2.  Spokane County.  Question presented: Whether the plain language of RCW 49.60.227 requires the superior court to enter an order requiring the removal of invalid racial covenants from the public record? COA opinion reported at 16 Wn. App. 2d 505 (2021).  Petition for review pleadings  available here.
 
 

Division One

Jury Selection.  Jurors who stated that they expected the defendant to testify at trial and/or expressed a preference in favor of police testimony are not subject to for cause challenges.  Actual bias requires a court to determine, from all the circumstances, that the juror cannot disreqgard such opinions and try the issue impartially. State v. Griepsma, COA No. 79806-5-I (May 24, 2021, publication ordered Jun. 24, 2021).
 
Third Degree Assault.  The State may charge an assault upon a correction officer under either the custodial assault statute, RCW 9A.36.100(1) or under the employee of a law enforcement agency alternative of assault in the third degree, RCW 031(1)(g).  State v. Griepsma, COA No. 79806-5-I (May 24, 2021, publication ordered Jun. 24, 2021).
 
Calculation of Offender Score.  A remand for resentencing is required where the defendant’s offender score calculation of 10 was based upon the inclusion of a crime that the State did not adequately prove.  Although the defendant’s corrected offender score of 9 results in the same sentencing range, the record does not allow the appellate court to determine that the trial court would impose the same sentence based upon the lower offender score.  State v. Griepsma, COA No. 79806-5-I (May 24, 2021, publication ordered Jun. 24, 2021).
 
 

Division Two

Collateral Attacks.  A statutory double jeopardy claim predicated upon RCW 10.43.040 must be brought within the 1-year time limit for collateral attacks. See RCW 10.73.090.  Only double jeopardy claims based upon Article I, section 9 of the Washington Constitution or the Fifth Amendment fall within RCW 10.73.100(3)’s exception to the 1-year time bar.  In re Personal Restraint of Gilbert, COA No. 54188-2-II (Jun. 29, 2021).

 

Division Three

Tax Immunity.  Under the doctrine of intergovernmental tax immunity a county may not collect taxes for a land sale to the United States Forest Service for recreational purposes, as the state provides a tax break for a substantially similar sale to the Washington State Parks and Recreation Commission.  Western Rivers Conservancy v. Stevens County, COA No. 37516-1-III (Jul. 1, 2021).  
 
 
WEEKLY ROUNDUP FOR JUNE 25, 2021

United States Supreme Court

Takings Clause.  A California regulation that permits union organizers to enter the property of agricultural businesses to talk with employees about supporting a union is unconstitutional.  The access regulation, which creates “a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year,” is a per se physical taking of property.  The regulation takes away the owners’ right to exclude others from the property which is one of the most important rights of owning property.  Cedar Point Nursery v. Hassid, No. 20-107 (Jun. 23, 2021). 
 
Hot Pursuit of Misdemeanor Suspect. Under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home. Whether a warrantless entry is permissible in such cases requires a case-specific determination as to whether the exigencies of the situation create a compelling need for official action and no time to secure a warrant.  Such exigencies may exist when an officer must act to prevent imminent injury, the destruction of evidence, or a suspect’s escape.   Lange v. California, No. 20-18 (Jun. 23, 2021). [Editor’s Note: The Lange opinion is consistent with Washington’s existing 11 factor test for determining whether exigent circumstances exist to justify a warrantless entry into a home for a non-felony fleeing suspect.  Compare City of Seattle v. Altschuler, 53 Wn. App. 317, 766 P.2d 518 (1989) (warrantless entry into motorist’s garage while pursuing suspect who drove through red light and failed to stop by driving at a non-reckless 30 mph for 12 blocks to his home’s garage was improper), with State v. Wolters, 133 Wn. App. 297, 135 P.3d 562 (2006) (officer lawfully entered defendant’s home without a warrant after defendant, who drove erratically and failed to stop when signaled, pulled into his own driveway, exited his truck, refused to remove his hands from his pockets or to remain in the driveway as ordered, and officer could not see whether the defendant had a weapon in his hands).] 
 

Division One

Involuntary Commitment.  An agreed less restrictive alternative (LRA) that does not include a stipulation from the respondent or her counsel or a court finding  that the respondent poses “a likelihood of serious harm,” or is “gravely disabled,” RCW 71.05.240(4)(1), cannot, upon revocation, result in the respondent’s detention.  The revocation of an LRA that was not accompanied by the required finding or stipulation merely returns the parties to the status qyo prior to the LRA.  State v. B.H., COA No. 81128-2-I (Jun. 21, 2021).
 

Spousal Testimonial Privilege.  A defendant who indicated that he consented to his wife’s testimony and would not invoke the spousal testimonial privilege, RCW 5.60.060(1), to keep her off the stand, could not rescind his consent after the State entered into a plea agreement with the defendant’s spouse in reliance on the defendant’s waiver.   The testimonial privilege is statutory, not constitutional, and the trial court has broad discretion with respect to evidentiary decisions. The exercise of discretion allows balancing the purposes of the privilege against the potential for trial  gamesmanship, the exclusion of otherwise relevant evidence, and potential damage to the truth-seeking function.   State v. Roach, COA No. 82053-2-I (Jun. 21, 2021).  Judge Coburn wrote “separately to urge our legislature to revisit the spousal confidential communications privilege and spousal testimonial privilege provided in RCW 5.60.060(1).”

Juror Bias. The trial court did not err by excusing for cause a prospective juror who indicated that she would be unable to convict in a sexual assault case based solely on the testimony of an underage victim .  State v. Roach, COA No. 82053-2-I (Jun. 21, 2021).

 
Exceptional Sentence Based on Youthfulness.  Trial counsel was not ineffective by failing to request an exceptional sentence below the standard range for his 18-year-old client where the State was seeking a sentence at the high end of the standard range and nothing in the presentencing report indicated that the defendant’s youth mitigated his culpability for the crime.  State v. Roach, COA No. 82053-2-I (Jun. 21, 2021)
 

Division Three

“Access Device.”  A paper check presented to a bank is excluded from the definition of an access device as “a transfer originated solely by paper instrument.” RCW 9A.56.010(1). Such a paper check will not support a conviction for second degree possession of stolen property. State v. Arno, COA No. 37268-5-III (Jun. 21, 2021).
 

Ninth Circuit

Improper Closing Argument.  The prosecutor’s comparison of the reasonable doubt standard to the confidence one needs to “hav[e] a meal” or “travel to . . . court”—without worrying about the “possib[ility]” that one will get sick or end up in an accident requires a reversal of the conviction.  This line of argument trivializes and diminishes the government’s burden of proof and is highly inappropriate and misleading.   United States v. Velazquez, No. 19-50099 (9th Cir. Jun. 23, 2021).  Circuit Judge Bade dissented.
WEEKLY ROUNDUP FOR JUNE 18, 2021

Division Three

GR 37.  Prosecutor’s peremptory challenge to a 23-year-old prospective juror with an Asian surname on the grounds that he was young and inexperienced in domestic matters, requires reversal of the conviction because the prospective juror was never asked any questions about his experiences in domestic matters or many questions at all.  Thus, it is conceivable that an objective observer could conclude race or ethnicity played some sort of role in the decision to strike the prospective juror from the venire.  State v. Lahman, COA No. 37092-5-III (Jun. 15, 2021). 
 
GR 37. GR 37 is inapplicable to a challenge for cause to a perspective juror for actual bias. State v. Teninty, COA No. 37253-7-III (May 11, 2021, publication ordered June 15, 2021).
 
Vehicular Homicide. Because “drunk driving is neither innocent nor passive,” State v. Blake, 197 Wn.2d 170 (2002), does not overrule or invalidate alter pre-existing case law which holds that vehicular homicide predicated upon the defendant operating the vehicle while under the influence of intoxicating liquor or drugs is a strict liability crime.  The trial court did not err in excluding evidence that the jaywalking decedent pedestrian was potentially impaired by drugs at the time of the incident as neither the decedent’s noncompliance with state law regarding cross-walks nor drug use was a “but-cause” factor in her death.   State v. Vanderburgh, COA No. 35868-2-III (Jun. 17, 2021).  Judge Siddoway authored a concurring opinion.
 
Jury Questions During Deliberations.  While a trial court has discretion to decline to answer a deliberating jury’s question about the law, “a trial court has a responsibility to ensure that the jury understands the law. We take this opportunity to strongly encourage our trial courts to fulfill this responsibility and directly answer a jury’s question of law even if it believes its instructions are correct and complete.”  In the instant case, the trial judge’s decision not to provide an additional instruction was not error because the jury’s question confirmed its understood its duty and the to-convict instruction was clear.  State v. Sutton, COA No. 36804-1-III (Jun. 17, 2021). 
WEEKLY ROUNDUP FOR JUNE 11, 2021

Washington Supreme Court

Sex Offenders and the Internet.  A condition of community custody that provided the defendant shall “not use or access the World Wide Web unless specifically authorized by [the defendant’s community custody officer] through approved filters,” is narrowly tailored to further the goals of the Sentencing Reform Act as to a defendant who used the Internet to solicit chidlren or commercial sexual activity.    The provision provides fair warning of what is forbidden and provides ascertainable standards sufficient to prevent arbitrary enforcement.  The provision does not require the defendant to seek permission every time he would use the Internet, it merely requires the defendant to use the Internet only through filters that have been approved by his community custody officer.  State v. Johnson, No. 98493-0 (Jun. 10, 2021).  Dissenters were Justices Madsen, Gordon McCloud, and Whitener. The State was represented in this case by Kitsap County DPA John Cross. 

 The Washington Supreme Court accepted review of the following matters last week:
 
Right to Present a Defense and Blake.  State v. Jennings, No. 99337-8. Pierce County.  Issues presented:  Whether in this prosecution for second degree felony murder, the trial court violated the defendant’s right to present a defense under the standard of review articulated in State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019), by excluding the victim’s toxicology report, which the defendant intended to use in support of his claim of self-defense.  Whether, in light of the court’s decision in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), where the court held unconstitutional Washington’s strict liability drug possession statute, the defendant in this case must be resentenced because his offender score included prior convictions for drug possession. COA opinion reported at 14 Wn. App. 2d 779 (2020).  Petition for review pleadings  available here.
 
Open View.  State v. Elwell, No. 99546-0. King County.  Issues presented:  Whether in this prosecution for residential burglary, defense counsel was ineffective in not moving to suppress the evidence seized in a warrantless search, and in stating on the record that the defendant’s pro se motion to suppress was not likely to succeed.  Whether in this prosecution for residential burglary, a stolen videogame machine seized without a warrant was admissible under the open view doctrine where the arresting officers claimed to be “virtually certain” that a blanket-covered item that the defendant was pushing on a cart in open view was the stolen machine. COA opinion is unpublished.  Petition for review pleadings  available here.
 
Guilty Pleas.  State v. Snider, No. 99310-6.  Pierce County.  Issue presented: Whether in this prosecution for failure to register as a sex offender in which the defendant pleaded guilty, the trial court failed to adequately inform the defendant of the elements of the offense the State had to prove, making the guilty plea not knowing, intelligent, and voluntary COA opinion is unpublished.  Petition for review pleadings  available here.


Division Three

Washington’s Privacy Act.  A self-authorization issued pursuant to RCW 9.73.230 that does not include the names of each and every officer authorized to intercept, transmit, and record the undercover communications, as required by RCW 9.73.230(2)(c), is invalid.  A report that identifies by name one authorized officer, along with a catchall phrase to include “any other” investigating officers is invalid.  State v. Ridgley, COA No. 37976-1-III (Jun. 8, 2021). 

 
Legal Update for Washington State Law Enforcement

The May 2021 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 

Tenth Circuit

Fabrication of Evidence and Prosecutorial Immunity. The plaintiff’s 42 U.S.C. § 1983 fabrication of evidence claim against prosecutors for knowingly falsifying measurements of the murder scene to rule out the possibility of suicide or self-inflicted accidental wound, was improperly dismissed pursuant to  Rule 12(b)(6) based on qualified immunity.  The allegations in the plaintiff’s complaint are sufficient to overcome the prosecutor’s claim of qualified immunity where they plausibly claim(1) the prosecutor’s actions violated his constitutional right not to be deprived of liberty as a result of the fabrication of evidence by a government officer and (2) the right was clearly established at the time of the prosecutor’s conduct.  Truman v. Orem City, No. 19-4133 (Jun. 4, 2021). 
WEEKLY ROUNDUP FOR JUNE 5, 2021

United States Supreme Court

Tribal Police Officers. Held: A tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law.  United States v. Cooley, No. 19-1414 (Jun. 1, 2021). [Editor’s Note: Neither the Washington nor the United States Constitution applies to tribes or tribal police officers.  See, e.g., Settler v. Lameer, 507 F.2d 231, 241-42 (9th Cir. 1974); Young v. Duenas, 164 Wn. App. 343, 356,262 P.3d 527 (2011).   Instead, their conduct is judged by the Indian Civil Rights Act (“ICRA”).  See 25 U.S.C. § 1302 (2) (“No Indian tribe in exercising powers of self-government shall … violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized”).  This standard is comparable to  Fourth Amendment, see United States v. Becerra-Garcia, 397 F.3d 1167 (9th Cir. 2005), but is not co-extensive with the requirements of Washington Const. art. I, § 7.]
 

Division One

Attempted First Degree Child Molestation.  Double jeopardy does not bar the defendant’s convictions for two counts of attempted child molestation.  While the defendant took only a single substantial step toward committing the crime, he tried to molest two separate young girls.  For sentencing purposes, the two crimes constitute separate criminal conduct because the defendant intended to inflict specific injury on two different victims.  State v. Canter, COA No. 80409-0-I (Jun. 1, 2021). 
 
Jury Selection.  A criminal defendant, who does not exhaust his peremptory challenges, does not waive his right to appeal the trial court’s denial of his challenge for cause. The trial court did not abuse its discretion in denying the defendant’s challenge for cause as to a prospective juror.  The prospective juror’s comments, which demonstrated he was aware of the possibility of unconscious bias, was worried about hearing evidence that might be upsetting, and was concerned about his ability to evaluate the evidence correctly, are not sufficient to establish actual bias.  State v. Peña Salvador, COA No. 81212-2-1 (Jun. 1, 2021).
 
Conditions of Community Custody.  A condition barring the defendant from “areas where
children’s activities regularly occur or are occurring” is not impermissibly vague.  Although the condition does not specify how often an activity must occur to qualify as a “regular” occurrence, a  commonsense reading makes clear that a child’s activity that occurred in a park in the distant past would not be sufficient to place the park off limit to the defendant at other times.  State v. Peña Salvador, COA No. 81212-2-1 (Jun. 1, 2021).
 
Interfering With the Reporting of Domestic Violence. Interfering with the reporting of domestic violence is a strict liability crime.   State v. Christian, COA No. 80045-1-I (Jun. 1, 2021).
 
Second Degree Assault.  Strangulation and suffocation is one of the seven alternative means of committing assault in the second degree.  They are two facets of the same criminal conduct and are not themselves separate alternatives means of committing second degree assault.  State v. Christian, COA No. 80045-1-I (Jun. 1, 2021).
 
Amendment of Information.  The trial court did not abuse its discretion when it allowed the State to amend the information, from child rape to child molestation, before formally resting its case.  The plurality decision in State v. Gehrke, 193 Wn.2d 1 (2019), does not compel a different outcome, as a majority of the justices rejected the “functionally rested” rule and the defendant has not demonstrated or attempted to demonstrate that the amendment prejudiced him.  State v. Martinez Platero, COA No. 79817-1-I (Jun. 1, 2021).
 
Discarded DNA.  The admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.  The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.  State v. Bass, COA No. 80156-2-1 (Jun. 1, 2021).
 
Ex Post Facto and Due Process.  The trial court erred in applying a 1990 version of the felony murder statute to a 1989 crime.  The error, however, was harmless beyond a reasonable doubt.  While the 1990 amendment to the felony murder which only required that the death occurred “in the course of or in furtherance” of the predicate crime, was a material change from the 1989’s requirement that the death occurred “in the course of and in furtherance of the predicate crime, as the predicate crime of kidnapping is a continuing course of conduct crime.  State v. Bass, COA No. 80156-2-1 (Jun. 1, 2021). [Editor’s note: When dealing with an older case it is strongly recommended that the prosecutor collect the version of the statutes, both sentencing and substantive law, that were in effect on the day the crime was committed.  These statutes will govern jury instructions, sentencing options, and a myriad of other factors.] 
 
Ineffective Assistance of Counsel.  Counsel’s failure to object to the admission of evidence at trial is presumed the product of legitimate trial strategy or tactics.  A defendant can only rebut this presumption by establishing the absence of any conceivable legitimate tactic explaining counsel’s performance.  Defendant did not satisfy this burden as to testimony from a State expert that mentioned opinions of a non-testifying expert, as the defense expert tendered similar testimony in an attempt to bolster her opinions.  As to testimony from two family members, defense counsel properly refrained from objecting as the challenged statements were not impermissible opinions on the defendant’s guilt. State v. Bass, COA No. 80156-2-1 (Jun. 1, 2021).
 
Right to Present a Defense.  The victim’s diary was properly excluded because the defendant’s theory that the entries supported his theory that the victim’s depression equates to either attempted suicide or sucide itself, lacked sufficient foundation was speculative.   State v. Bass, COA No. 80156-2-1 (Jun. 1, 2021).
 

Judicial Comment on the Evidence.  The trial court did not violate art. IV, § 16 of the Washington Constitution when, in response to a prospective juror’s question, indicated that witnesses called to testify at trial have testimony that is relevant.  This statement, which was an explanation of ER 402 as it applied to witness testimony,  did not reveal the court’s attitudes toward the merits of the case.   State v. Bass, COA No. 80156-2-1 (Jun. 1, 2021).

Division Two

Change of Venue. Defense counsel was not ineffective for failing to move for a change in venue to a forum that had a higher Black population.  While bias is a societal problem imbedded in our justice system, a defendant is not entitled to a venire that is composed in whole, or in part, of persons of his or her own race and “fair trial” in the context of CrR 5.1(b)(2) to the racial makeup of a given county.   State v. Clark, COA No. (Jun. 2, 2021).
 

Division Three

Open Public Meetings Act. The Open Public Meetings Act (OPMA) is violated when a governmental body conditions a person’s attendance at a meeting on her agreement not to make a video recording. A governing body may, however, exclude a member of the public who is recording a meeting in a disruptive manner. The lodestar methodology applies to attorney fee awards under the OPMA.  Attorney fees should not be reduced solely because of the monetary value of the award.   Zink v. City of Mesa, COA No. 36994-3-III (Jun. 1, 2021).  
 

Innovative Prosecution Solutions

Developed with support from the Bureau of Justice Assistance, the Prosecutors’ Guide for Reducing Violence and Building Safer Communities provides a systematic way for each prosecutor’s office to assess its strengths and weaknesses with respect to several critical elements. The Guide also suggests ways to enhance capabilities and provides examples of policies and practices that might be developed or improved.
WEEKLY ROUNDUP FOR MAY 28, 2021

Washington Supreme Court

Persistent Offender Accountability Act.  The 2019 amendment to the Persistent Offender Accountability Act, which removed second degree robbery from the list of most serious offenses, only applies to defendants who are sentenced as a persistent offender for crimes committed on or after July 28, 2019.  This result is compelled by both RCW 9.94A.345 and RCW 10.01.040.  State v. Jenks, No. 98496-4 (May 27, 2021). Justices Yu and Montoya-Lewis joined a concurring opinion “to emphasize that while the legislature commands the harsh result of affirming Jenks’ life sentence, the constitution and the ends of justice do not.” The lone dissenter was Justice Madsen.  State was represented by Spokane County DPAs Larry Steinmetz and Brett Pearce. [Editor’s Note: In Laws of 2021, ch. 141, the legislature has ordered all persistent offenders for whom robbery in the second degrees was treated as a “strike” to be resentenced.]

Public Records Act.  Certain records relating to public employment—including photographs and the month and year of birth of people who work in state criminal justice agencies—are exempt from public request. RCW 42.56.250(8). However, members of the “news media” are entitled to these exempt records. Id; RCW 5.68.010(5).   The statutory definition of “news media” requires an entity with a legal identity separate from the individual. The requestor bears the burden of establishing that s/he is a “news media.” The requestor’s intent in making the request has not bearing on whether a news media entity exists of what a person’s relationship is to that entity.    Green v. Pierce County, No. 98768-8 (May 27, 2021).  Justices Whitener and Gordon McCloud dissented. Pierce County was represented by Daniel Hamilton. 

Division Two

Involuntary Mental Health Commitment. Prong (b) of former RCW 71.05.020(22) provides that “”Gravely disabled’ means a condition in which a person, as a result of a mental disorder,. . . (b) manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over his or her actions and is not receiving such care as is essential for his or her health or safety.” A person’s recent criminal act, his health concerns that impacted his ability to feed himself, and his continuing agitated and angry state demonstrate deterioration in routine functioning.  The person’s lack of insight into his mental illness and non-compliance with medication provides ample support that he would not receive care that is essential for his health or safety and that if released, he would be incapable of making rational decisions about his health care needs.  In re Detention of A.M., COA No. 53965-9-II (Apr. 27, 2021, publication ordered May 25, 2021). 
 

Ninth Circuit

Emergency Exception to the Warrant Requirement. Officers, who arrived at a address listed on the registration of a blue Jaguar, in response to a report that a man was hitting a child in the backseat of a blue Jaguar, erroneously pushed an unlocked door open when no one immediately responded to their knocking.  The opening of the unlocked front door constituted a search that was not justified by the emergency exception as the officers had no reason to believe that the child victim was is the home at the address where the Jaguar was registered, there was no indication that the incident in the Jaguar had ended, and no blue Jaguar was at the address when the officers arrived.  United States v. Holiday, No. 20-50157 (9th Cir. May 27, 2021). 


Washington State Institute for Public Policy

Adult Sentencing.   The Washington State Criminal Sentencing Task Force (CSTF) was directed to review the state’s sentencing laws. To better understand the landscape of sentencing in Washington and the potential impacts of reforming the state’s sentencing laws, the CSTF contracted with WSIPP to examine felony sentencing in Washington State Superior Courts. The purpose of this report is to provide analytic data to assist with future policy discussions within the CSTF.  This report includes an examination of racial disproportionality in sentencing outcomes for standard sentences in the current and alternative guideline grids and for non-standard sentences including enhancements, exceptional sentences, and sentencing alternatives.  Examining Washington State’s Sentencing Guidelines: A Report for the Criminal Sentencing Task Force (May 2021). 
 

Arizona Supreme Court

Defense Attorney Conflict of Interest.  “In this case we hold that when a trial court is advised of a potential conflict arising from an attorney’s representation of a codefendant, it must conduct an independent inquiry to confirm that the defendant’s Sixth Amendment right to conflict-free counsel was waived knowingly and voluntarily. Critically, to satisfy its duty, the court must do more than simply credit the attorney’s assurances that the defendants had common defenses and waived any conflict.”  State v. Duffy, No. CR-19-0386-PR (May 17, 2021). [Editor’s Note: Washington case law requires the court to undertake an independent inquiry under similar circumstances.  See, e.g., State v. Graham, 78 Wn. App. 44, 53-57 (1995).  See also State v. Dhaliwal, 150 Wn.2d 559, (2003) (court’s inquiry is inadequate if it merely relies on a defendant’s simple affirmatives, rather than a probing inquiry).]


Ethics Opinions

Impaired Lawyers. This opinion addresses mental impairments that impede a lawyer’s fitness to competently and diligently engage in the practice of law in accordance with the rules and State Bar Act. A lawyer’s impairment does not excuse that lawyer’s compliance with the rules and the State Bar Act. An impaired lawyer’s conduct can also trigger obligations for the impaired lawyer’s subordinates, supervisors and other colleagues who know of the impaired lawyer’s conduct. These ethical obligations may include, but are not limited to, communicating significant developments related to the lawyer’s conduct to the client and promptly taking reasonable remedial action to prevent or mitigate any adverse consequences resulting from an impaired lawyer’s actions. The required scope of each lawyer’s action depends on the nature of the client’s representation, the severity of the impaired lawyer’s unethical conduct, whether the client has been harmed or will be harmed by the impaired lawyer’s conduct, the nature of the lawyer’s impairment, the size of the law firm and the resources available, and each lawyer’s position within the firm. The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2021-206 (May 2021). [Editor’s Note: Washington RPC 1.1, 1.2, 1.3, 1.4, 1.4.1, 1.6, 1.7, 1.10, 1.16, 5.1, 5.2 and 8.4 are comparable to the California Rules discussed in the Formal Opinion.]


Attorney Well Being Resources

Prosecutor Well-Being.  The National District Attorneys Association recently formed a well-being task force to provide resources and promote prosecutor well-being on a wide range of issues including secondary trauma, burnout, vicarious trauma, compassion fatigue, and more.  Find out about upcoming events on prosecutor well-being, read a monthly newsletter, and view short inspirational articles at the In Recess blog. Additional resources for prosecutors are in development.  

Looking for other resources regarding lawyer well-being– check out the Institute for Well-Being in Law , the WSBA Member Wellness Program, and the American Bar Association Mental Health Resources.
WEEKLY ROUNDUP FOR MAY 21, 2021

United States Supreme Court

Retroactivity of New Rules. A new rule of criminal procedure applies to cases on direct review, even if the defendant’s trial has already concluded.  In federal court system, new rules of criminal procedure only applied to cases on collateral review if the he new rule constitutes a “watershed” rule of criminal procedure. Teague v. Lane, 489 U. S. 288, 311 (plurality opinion).  In this case, the Court holds that the watershed exception is moribund and that no new rules  of criminal procedure can satisfy the purported exception for water shed rules.  Edwards v. Vannoy, No. 19-5807 (May 17, 2021). [Editor’s note: While states are not required to follow Teague and its progeny, the Washington Supreme Court decides whether a rule applies retroactively in collateral review under the framework of Teague. See, e.g., In re Personal Restraint of Colbert, 186 Wn.2d 614, 623, 380 P.3d 504 (2016).]
 
Cady v. Dombrowski and Homes.  In Cady v. Dombrowski, 413 U.S. 433 (1973 ), the United States Supreme Court recognized a “community caretaking” exception to the warrant requirement of the Fourth Amendment, that allowed officers to enter a disabled or impounded vehicle to secure firearms. In the instant case, the Court holds that the “caretaking” duties applicable to automobiles do not justify a warrantless entry into a home for the purpose of searching for and securing firearms.    Canigla v. Strom, No. 20-157 (2021). [Editor’s note: This opinion does not prevent officers from entering private property without a warrant to “‘render emergency assistance to an in jured occupant or to protect an occupant from imminent injury.’” Kentucky v. King, 563 U. S. 452, 460, 470 (2011); see also Brigham City v. Stuart, 547 U. S. 398, 403–404 (2006) (listing other examples of exigent circumstances).”  This opinion will have little to no impact in Washington, as our courts never fully adopted Cady.  See, e.g., State v. Duncan, 185 Wn.2d 430, 440-42 (2016) (limiting community caretaking searches to remove weapons from disabled vehicles).]
 

Washington Supreme Court

Original Actions.  Municipal court judges are not “state officers” within the meaning of article IV, section 4 of the Washington Constitution.  The Supreme Court, therefore, lacks jurisdiction to entertain an original jurisdiction action filed against municipal court judges. Ladenburg v. Henke, No. 98319-4 (May 20, 2021).  WAPA amicus brief authored by King County DPA Ann Summers and WAPA Staff Attorney Pam Loginsky.
 
Consciousness of Guilt and Severance.  Missing one court hearing does not rise to the level of flight evidence from which one can infer consciousness of guilt on the underlying crime.  The charge of bail jumping for missing the hearing and the underlying crime should have been severed for trial as the charges are not cross admissible under the facts of this case under an ER 404(b) and ER 403 analysis.  State v. Slater, No. 98795-5 (May 20, 2021).  The State was represented in this case by Snohomish County DPA J. Scott Halloran. [Editor’s Note: Although the Court acknowledged that the prosecutor’s closing argument was consistent with the trial court’s rulings re consciousness of guilt, the Court offers a ten paragraph critique that “highlight[s] the problematic commentary.”]
 

Division One

Sentences for People Who Commit Murder Prior to Their Eighteenth Birthday.  When youth is established as a mitigating factor and the sentencing court has imposed an exceptional sentence below the standard range, the length of the sentence will be reviewed by an appellate court under the abuse of discretion standard. To facilitate review under this standard, “ when sentencing judges determine that youth is a mitigating factor and exercise their broad discretion to fashion an appropriate sentence, such judges (1) must explain the reasons for their determination, and (2) those reasons must be rationally related to evidence adduced at trial or presented at sentencing.”  Here, the judge did not abuse his discretion by imposing a 106 month sentence (standard range of 321-407 months) on a person who was 16-years-old when his co-participant shot and killed another person in the course of a robbery due to the person’s ADHD, adverse childhood experiences, and immaturity as compared with a “typical” child of 16.  State v. Rogers, COA No 80404-9-I (May 17, 2021).
 
Terry Stop.  Officers exceeded the scope of a Terry stop when, with no observations or information from which to believe the suspect was carrying a weapon, they followed the suspect into a restaurant, tackled him to the ground, held him down by the neck and head, and handcuffed him.  While the officer’s knowledge of a month-old arrest warrant would support a properly limited Terry detention, it was insufficient to provide probable cause for the suspect’s actual custodial arrest.  The month gap between the officer learning of the arrest warrant and the arrest was too long – the suspect could have been arrested and posted bail during the 30-day interval.  State v. Pines, COA No. 80450-2-I (May 17, 2021). 

       
Division Two

Earned Release Time.  A sentencing court may only sentence a defendant whose standard range plus community custody exceeds that statutory maximum for the crime to community custody for any earned release time, if the defendant’s “risk assessment” classifies him as an offender “who is at high risk to reoffend,” RCW 9.94A.501(3), and the court sentences him to a fixed term of community custody.  State v. LaBounty, COA No. 53495-9-II (May 18, 2021).
 

Sentencing Reform Act Resources

 The Chronological Sentencing Reform Act.  The Sentencing Reform Act (SRA) has applied to crimes committed since July 1, 1984. The Legislature has amended the SRA frequently, often using emergency clauses to make amendments immediately effective. This makes it difficult to determine the version of the SRA in effect on any given date. In most situations, the applicable version of the SRA is that version in effect on the date of the crime.  This research tool is intended to make it easier to determine the version of the SRA in effect on any given date. This page lists date ranges since 1984. To go to the SRA in effect, go to the date range containing the date in question, click on the link, and you will be taken to the version of the SRA in effect during that date range, including all amendments effective at the beginning of that date range. Each version of the SRA has a table of contents and has internal links to make navigating easier. Each section in each version of the SRA is followed by a citation to the session law that amended that section for the applicable date range.  This tool is invaluable for cold cases and the Blake, Ali/DC, and other resentencing matters.
 
SRA Manuals.  The Caseload Forecast Council maintains copies of all SRA manuals on line.  You may download a free PDF version of each manual here.  This citation also has links to juvenile disposition manuals and other documents regarding recidivism, disproportionality and disparity, and statistical summaries.
 
Session Laws. The Office of the Code Reviser makes all of the session laws– from territorial days to present – available here.  There are two ways to navigate the documents.  Where available, clicking on the year in the left hand column will get you to a page that has links to each individual chapter.  Clicking on the volume links in the other columns will get you to all of the chapters in that volume.  The volumes are easily searchable, using ctrl F. 
 
Washington Practice.  Westlaw users can access Washington Practice on line, for the rest of us there is an old school book.  Either way 13B Fine, Washington Practice, Criminal Law and Sentencing (3rd ed. 2019), is well worth a read.  Section 42:13 identifies the major changes to the SRA.  Other sections guide you through offender score calculation, comparability analysis, the case law concerning the various special sentencing options, the various special sentencing options, and exceptional sentences.
WEEKLY ROUNDUP FOR MAY 14, 2021

Washington Supreme Court

Premises Liability. The reasonable foreseeability exception to the notice requirement applies to a slip and fall premises liability lawsuit brought by an injured business invitee. Johnson v. State of Wash. Liquor and Cannabis Board, No. 9872602 (May 13, 2021).
 
Comments re Court Rules.  Due date for comments on a number of proposed rules is rapidly approaching.  I know everyone is busy, but it is incredibly important for offices and individual attorneys to submit comments regarding proposed rules.  Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words.  The word limit does not apply to a letter that is attached to an e-mail.  Proposals that impact prosecutors are described below, all proposed rules that the Court ordered to be published for comment in April 2021, are available here. Please consider commenting on the following rule proposals:
 
Proposed Amendment to ER 413.  Changes to ER 413(a)(5) are intended to clarify that ER 413 does not exclude evidence related to immigration status in a criminal case if the exclusion of evidence would result in a constitutional violation.  New language would read: “Nothing in this section shall be construed to exclude evidence if (the exclusion of) that evidence would result in the violation of (violate) a defendant’s constitutional rights.”  Due date for comments is July 1, 2021.
 
Proposed Amendment to IRLJ 6.2.  Recommends reduced penalties for some fish and wildlife infractions and penalties for new infractions created in Laws of 2020, ch. 38, § 3.  Due date for comments is July 1, 2021.

Division One

Robbery in the First Degree. An information charging a defendant with robbery in the first degree within and against a financial institution, RCW 9A.56.200(1)(b), is not required to state that the defendant used force or fear either to obtain or retain possession of the property at issue or to prevent or overcome resistance to the taking. This language, which is part of the second sentence of RCW 9A.56.190 merely defines terms contained in the elements set out in the first sentence of RCW 9A.56.190.   State v. Derri, COA No. 80396-4-I (May 10, 2021). [Editor’s Note: This opinion deepens a split between Division One and Division Three.  See State v. Todd, 200 Wn. App. 879 (Div. III 2017).] 
 
Out-of-Court Identifications.  The trial court did not abuse its discretion in admitting out-of-court identifications made by the tellers who were on duty when the defendant robbed their banks, despite the fact that the defendant’s photo in the montage was the only one with a neck tattoo and two of the tellers were shown two montages that contained photos of the defendant.  Each of the tellers had an opportunity to observe the bank robber, each interacted with the robber, and one teller recalled meeting the defendant before the robbery.  All of the tellers described the defendant, his appearance and hid demeanor in sufficient detail to establish that they were paying attention to the robber and all of the descriptions were sufficiently consistent with the defendant’s attributes. Finally, the tellers’ out-of-court identifications were made shortly after the robberies and the tellers showed high levels of certainty in their identifications.  State v. Derri, COA No. 80396-4-I (May 10, 2021). Judge Coburn concurred in the result, but explains that the photo montage was impermissibly suggestive.
 
Late Disclosure of Evidence. The late disclosure of a surveillance video from a business located across the street from the victim bank that depicted the scene outside the bank both before and after the robbery, did not merit either a mistrial or dismissal of the robbery charge, as the relatively poor quality of the videos prevented the defendant from establishing actual prejudice from the delayed disclosure.  State v. Derri, COA No. 80396-4-I (May 10, 2021).
 
Missing Evidence Jury Instruction.  To be entitled to a missing evidence instruction, the “lost evidence” must be particularly available to the State.  This requirement is not met with respect to video footage that the detective merely did not request and that the bank, a non-state actor– deleted pursuant to it’s standard video-retention policy.  State v. Derri, COA No. 80396-4-I (May 10, 2021). 
 
Prior Convictions.  The State satisfied its burden of proving identity concerning the prior convictions that comprised the defendant’s offender score at sentencing.  The State produced certified copies of judgment and sentences that bore the same name(s) as those used by the defendant.  The State was not required to establish identity of birthdates in order to meet its burden of proof.  Absent a declaration under oath in which the defendant swears he is not the same person named in the prior convictions, the State was not required to submit further evidence.   State v. Derri, COA No. 80396-4-I (May 10, 2021).  
 
Terry Stop.  Officers exceeded the scope of a Terry stop when, with no observations or information from which to believe the suspect was carrying a weapon, they followed the suspect into a restaurant, tackled him to the ground, held him down by the neck and head, and handcuffed him.  While the officer’s knowledge of a month-old arrest warrant would support a properly limited Terry detention, it was insufficient to provide probable cause for the suspect’s actual custodial arrest.  The month gap between the officer learning of the arrest warrant and the arrest was too long – the suspect could have been arrested and posted bail during the 30-day interval.  State v. Pines, COA No. 80450-2-I (May 10, 2021). 
 
Citation to Blog Posts.   While litigants are entitled to cite blog posts, “[g]iven that  a blog post is neither subject to peer review nor to any other review processes akin to those applicable to scholarly work published in a law review or journal, . . .[a] blog post is entitled to similar weight as would have been assigned to a letter to the editor submitted by a learned individual in days gone by.” State v. Peters, COA No. 79348-9-I fn. 6 (May 10, 2021).
 
Promoting Prostitution.  RCW 9A.88.060(1) merely furnishes a definition of the element of “advances prosecution” of the crime of promoting prostitution in the second degree, and does not create additional essential elements. As such, the definition of the element “advances prosecution”  need not be alleged in the charging document. The definition of “advancing prostitution” and RCW 9A.88.080, are not unconstitutionally vague.   Sufficient evidence supports that the defendant’s actions went beyond those of a customer, where the defendant, in addition to his personal sex-purchasing behaviors, referred sex buyers to specific sex workers and agencies,  scheduled appointments for sex buyers, vouched for would-be customers, and gave them detailed instructions about how to get through screening processes, advised enterprise owners with regard to specific apartment complexes to use, connected individual sex workers with bookers and agencies, and ran a website on which agencies and individual sex workers could post advertisements. The defendant’s speech was not protected by the First Amendment as it was both intended to produce and likely to produce unlawful activity.   State v. Peters, COA No. 79348-9-I (May 10, 2021) (this opinion replaces the opinion originally issued on Feb. 22, 2021).
 

Division Two

Blake and Offender Scores. Convictions for violations of Washington’s strict liability drug possession statute cannot be considered in calculating a person’s offender score.  State v. Sprague, COA No. 53370-7-II (May 11, 2021). 
 

Division Three

Jury Selection and Challenges for Cause. When a juror is challenged for cause, the only issue before the court is whether the juror is laboring under actual bias.  A biased juror may be excluded regardless of race. State v. Teninty, COA No. 37253-7-III (May 11, 2021) (unpublished, but worth a read).

Legal Update for Washington State Law Enforcement

The April 2021 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 

Ninth Circuit

Terry Protective Searches.  The limited protective search authorized by Terry does not allow an officer to proceed directly to extract and examine an item in a suspect’s pocket.  An officer conducting a Terry protective search may only reach into a pocket after feeling a hard item that could be a weapon during the limited patting of the outer clothing.   United States v. Brown, No. 19-50250 (9th Cir. May 12, 2021).
 

Massachusetts Supreme Court

Zoom Evidentiary Hearings.  A virtual suppression hearing is not a per se violation of a defendant’s constitutional rights in the midst of the COVID-19 pandemic.  Nonetheless, a judge abuses his/her discretion in denying a defendant’s motion to continue a suppression hearing until it can be held in person where the defendant has waived his right to a speedy trial, there are no civilian victims or witnesses, the prosecution has present no evidence that the officers or the evidence in its custody will be unavailable if the hearing is continued, and the defendant is aware that when in-person proceedings resume, there will be a significant backlog and he may not be able to obtain a hearing as soon as he might wish.  Vasquez Diaz v. Commonwealth, No. SJC-13009 (May 5, 2021).

Pennsylvania Superior Court

COVID-19 Restrictions and Jury Selection. Masking and social distancing of  prospective jurors does “not interfere with the sole purpose of voir dire: the ‘empaneling of a competent, fair, impartial, and unprejudiced jury capable of following the instructions of the trial court.’”  Commonwealth v. Delmonico, No. 1080 MDA 2020 (Pa Super. May 4, 2021).
WEEKLY ROUNDUP FOR MAY 7, 2021

Washington Supreme Court

Second Degree Rape by Forcible Compulsion. Updated Washington Pattern Jury Instructions: Criminal (WPIC) 41.02, 45.03, and 18.25, given together, adequately instruct the jury on the State’s burden to disprove consent beyond a reasonable doubt in a second degree rape by forcible compulsion jury trial.  State v. W.R., 181 Wn.2d 757 (2014), does not require the State to prove  lack of consent separate and apart from forcible compulsion.  State v. Knapp, No. 98067-5 (May 6, 2021).  Justice Gordon McCloud wrote a concurring opinion.  The State was represented by Benton County DPA Terry Bloor.
 
Tribal Fishing Rights.  Recalls a mandate issued in 1916 and vacates a conviction by a Yakama Nation member who was fishing at the usual and accustomed fishing places of the Yakama Nation.  Order entered because the 1916 opinion “is an example of the racial injustice described in this court’s June 4, 202 letter, and it fundamentally misunderstood the nature of treaties and their guarantees, as well as the concept of tribal sovereignty.”   State v. Towessnute, No. 13083-3 (Apr. 26, 2021).
 

Division One

Immigration Status and ER 413.  The defendant’s Sixth Amendment right of confrontation was violated by the trial court’s prohibition upon inquiring into the key witnesses’ immigration status and that she was subject to removal under federal immigration law. This evidence was highly relevant to a potential motive to lie based on threats of deportation by law enforcement during the witness’s original interview with detectives.  State v. Carballo, COA No. 82054-1-I (May 3, 2021).
 
Ineffective Assistance of Counsel and Self-Defense.  Defense counsel did not render constitutionally deficient representation as the decision to not ask for a self-defense instruction was a legitimate trial tactic. A jury could reasonably find that the force used by the defendant was “more than necessary,” and the defendant’s credibility could be undercut by a claim of self-defense as the defendant testified that he initially thought it was funny when he was being chased by the victim. The decision to not seek a self-defense instruction did not negate the defendant’s autonomy by overriding his desired defense objective.   State v. Molina, COA No. 80346-8-I (Mar. 22, 2021, publication ordered Apr. 22, 2021).
 
Criminal Statute of Limitations.  A defendant may assert a statute of limitations claim for the first time in the appellate court under RAP 2.5(a)(2).  This defendant, however, waived his double jeopardy challenge to his conviction on the lesser degree crime of theft in the third degree by proposing the inferior degree jury instruction after the limitation period applicable to that crime had expired.  State v. Davis, COA No. 80956-3-I (Apr. 26, 2021).
 

Ineffective Assistance of Counsel and Failure to Object.  Defense counsel’s decision to not object to an answer to one of his/her questions that informed the jury that the defendant did not answer all of the officer’s questions was a purely tactical and entirely reasonable decision.  State v. Davis, COA No. 80956-3-I (Apr. 26, 2021).

Division Three

Collateral Attacks.  A defendant who seeks to overturn a conviction based on criminal activity by counsel or a judge may not rely on generalized allegations of unproven conduct.  A defendant who seeks post-conviction relief on the grounds that his attorney was not properly licensed in Washington at the time of representation, must establish that his attorney’s performance was adversely impacted by the attorney’s fear of what might happen if someone looked into the alleged state licensing violations.  A defendant who claims that his right to an impartial tribunal was violated when the judge who presided over the case was charged with crimes shortly after the defendant’s case was concluded, must establish that the judge was aware of the State’s investigation during the pendency of the defendant’s case and that this created a conflict of interest between the judge’s duties as a jurist and a desire to avoid criminal prosecution.  In re Personal Restraint of Ayerst, No. 36965-0-II (May 4, 2021).
 
Allowing an Unauthorized Person to Drive Your Vehicle.  A defendant may only be convicted of violating RCW 46.16A.520 if the defendant both knowingly permits another person to drive the vehicle and the defendant knows that the person was unauthorized to drive.  State v. Elwell, COA No. 37528-5-III (May 4, 2021). 
 
“Safely-Off-the-Roadway.” A defendant, who was asleep with the engine running and the lights on while parked inside a nearly empty five-acre parking lot at a gas station, was entitled to dismissal of the charge of felony physical control, as the evidence established the “safely-off-the roadway” defense by a preponderance of the evidence.  State v. Edgar, COA No. 37080-1-III (Mar. 9, 2021, publication ordered May 6, 2021).
WEEKLY ROUNDUP FOR APRIL 30, 2021

Washington Supreme Court

SVP and Appeals.  An order revoking a sexually violent predator’s conditional release to a less restrictive alternative placement pursuant to RCW 71.09.098 is not appealable as of right under the Rules of Appellate Procedure.  Such orders are subject to discretionary review in accordance with RAP 2.3(a).  In re Detention of McHatton, No. 98904-4 (Apr. 29, 2021). [Editor’s Note: This unanimous opinion once again notes that “the proper path to change the Rules of Appellate Procedure is through the normal rule making process, not through overruling precedent to accommodate the change.”]
 
On April 27, 2021, the Washington Supreme Court accepted review of
Entrapment and Attempted Rape of a Child.  State v. Arbogast, No. 99452-8.  State’s Petition– Benton County. Questions presented: “whether the defendant’s burden of proof for an entrapment instruction should be preponderance of evidence or ‘prima facie’ evidence; whether entrapment involves only one element and whether the trial court’s reference to a ‘normal’ amount of police persuasion was correct;  whether the defendant’s lack of predisposition to commit the crimes could be proven by his lack of criminal history; [and] whether any failure to give an entrapment instruction was harmless?”    COA opinion reported at 15 Wn. App. 2d 851 (2020). Petition for review pleadings  available here.

Division Two

Time for Trial.  Where a defense attorney knows of and fails to timely advise the trial court of a time for trial violation, the objection is waived.  Here, the defense attorney knew when the trial court set the trial date that it was outside of the CrR 3.3 time for trial period but waited until the violation became incurable to alert the court.  Consequently the dismissal of charges for a violation of the time for trial rule was erroneous. State v. Walker, COA No. 53646-3-II (Apr. 27, 2021). 
 
Venue in Civil Cases.  For purposes of RCW 36.01.050(1), an action by a county against a limited liability company (LLC) is the county where the LLC transacts business, not the county where its principal office is located.   Clark County v. Portland Vancouver Junction Railroad, LLC, COA No. 53799-1-II (Apr. 27, 2021). 
 
WEEKLY ROUNDUP FOR APRIL 23, 2021

United States Supreme Court

Eighth Amendment and Juveniles.  While a defendant who committed murder prior to his or her 18th birthday may not be subject to a mandatory sentence of life in prison without the possibility of parole (LWOP), the sentencing authority is not required to make a separate factual finding of permanent incorrigibility before exercising its discretion to impose a sentence of LWOP.  The sentencing authority is also not required to make an on-the-record explanation that the mitigating circumstances of youth were considered along with an implicit finding of permanent incorrigibility.  Neither Miller nor Montgomery require such an on the record explanation, nor do the cases impose a formal factfinding requirement.   Jones v. Mississippi, No. 18-1259 (Apr. 22, 2021).  Dissenting were Justices Sotomayor, Breyer, and Kagan.


Division One

Attempted First Degree Murder.  Premeditation is not an element that must be included in the  to-convict instruction for attempted first degree murder.  A to convict instruction based on WPIC 100.02 with a separate instruction that states “A person commits the crime of murder in the first degree when, with a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person,” and an instruction that defines premeditation is adequate.  State v. Burrus, No. 80849-4-I (Apr. 19, 2021).
 
Deliberate Cruelty.  The evidence was sufficient to support the jury’s finding that the defendant demonstrated deliberate cruelty to the victim when he poured gasoline on the victim and set the victim on fire.  The State is not required to provide the jury with examples of typical attempted first degree murders.  The jury may rely on their common sense and common experience to determine that the conduct was deliberately cruel.  The defendant cannot assert a vagueness challenge to the deliberate cruelty aggravator.  State v. Burrus, No. 80849-4-I (Apr. 19, 2021).
       

Division Three

Constitutional Right to Present a Defense.  The trial court erroneously excluded evidence pursuant to the Rape Shield Statute  that the victim flirted with the defendant and sat on his lap at the party where the unlawful sexual contact occurred.  The Rape Shield Statute does not apply to behavior that is contemporaneous with the alleged rape.  In addition the statute does not apply to evidence, which was offered to explain how the victim’s intoxication affected her behavior and memory of that night and that there may have been an innocent explanation for the DNA transfer.  The trial court also erred by sustaining an objection to a hypothetical question that defense posed to the State’s DNA expert during cross-examination; an expert witness may be cross-examined with hypotheticals yet unsupported by the evidence that go to the opponent’s theory of the case.  The trial court’s exclusion of reputation evidence on the particular character trait of sexual morality was based on untenable grounds and was an abuse of discretion.   State v. Cox, COA No. 37206-5-III (Apr. 20, 2021). 
 

Sixth Circuit

Confrontation Clause and Prior Testimony.  When the testimony of a witness from a first trial is used in lieu of live testimony because of the unavailability of the witness, the confrontation clause prohibits redacting portions of the cross-examination from the prior trial over the defendant’s objection.   Miller v. Genovese, No. 19-6214 (6th Cir.  Apr. 19, 2021). 
WEEKLY ROUNDUP FOR APRIL 16, 2021

Washington Supreme Court

Juvenile Upward Manifest Injustice Dispositions.  Manifest injustice dispositions cannot be based on facts that the juvenile did not have notice of at the time of plea. “This notice protection ensures that prosecutors will not purposefully withhold new facts that would support an extended sentence, only to introduce them later at trial or sentencing after a defendant has already made the decision whether to plead.” Facts arising after the plea, like the offender’s denial of responsibility and refusal of treatment, cannot be used to justify a manifest injustice disposition.  State v. D.L., No. 96143-3 (Apr. 15, 2021). Chief Justice González wrote separately to “reemphasize this court’s commitment to eliminating systemic race-based injustice and inequities from our legal system.”   Justice Montoya-Lewis signed Justice González’s concurring opinion which asserts that disparities occur because “judges rely on recommendations from probation officers that consistently and effectively impose higher sentences on children of color.”  Justices Stephens, Madsen, Yu, and Whitener disagree that due process precludes the court from considering circumstances that arise after the plea but before disposition.  They would require notice before entering a plea “(1) of any specific existing facts that could support a manifest injustice disposition and (2) that their actions after entering a plea could support a manifest injustice disposition.” State was represented by Whatom County DPA Hilary Thomas and Whatcom County Special DPA Phil Buri. 
 
Juvenile Upward Manifest Injustice Dispositions.  Juveniles must be given notice of the facts and aggravating factors used to support a manifest injustice disposition prior to a juvenile pleading guilty so that they have all available information to prepare to meet the allegations and properly assess their decision to proceed to trial or plead guilty. If the State fails to provide notice of aggravating factors prior to entry of the plea, manifest injustice findings are invalidated. While a juvenile must have notice of the factual basis of the plea and, thus, conduct occurring postplea may not be used to impose a manifest injustice disposition, any facts occurring after the plea and deferral may still cause a revocation of a deferred disposition.  The aggravating factors that may support a manifest injustice disposition is not limited to the aggravating factors identified in the statute.  State v. M.S., No. 96894-2 (Apr. 15, 2021).  Justices Stephens, Madsen, Yu, and Whitener dissented in part.  State was represented by King County DPAs Jim Whisman and Benjamin Carr.
 

Division Two

Residential Burglary.  Notwithstanding previous Court of Appeals cases, residential burglary is not an alternative means offense under the analytical framework of more recent Supreme Court alternative means cases. A jury need not be unanimous as to whether the defendant “unlawfully entered” or “unlawfully remained,” and a “to-convict instruction” which requires the State to prove that the defendant “entered or remained unlawfully in a dwelling” is proper.  The State, in this case, elected to proceed solely under the “unlawfully remain” language when it indicated during closing argument that the defendant entered the victim’s house lawfully, but failed to leave when the victim asked him to.   State v. Smith, COA No. 53443-6-II (Apr. 14, 2021). [Editor’s note: This opinion creates a split between Division II and the other two divisions of the Court of Appeals.]

Juvenile Court Sentences.  State v. Houston-Sconiers, 188 Wn.2d 1 (2017), does not apply to juvenile offenders sentenced in juvenile court, as the Juvenile Justice Act (JJA) already takes the offender’s youth into account.  The JJA’s requirement of clear and convincing evidence in support of a downward manifest statute, while the Sentencing Reform Act has the less burdensome standard of preponderance of the evidence,  does not violate the juvenile’s right to equal protection.  State v. S.D.H., COA No. 53841-5-II (Apr. 13, 2021). 
 
Prosecutor Conflicts. The trial court’s order disqualifying the entire Pierce County Prosecuting Attorney’s Office from prosecuting a sheriff’s deputy for a stabbing while off-duty was improper.  The elected prosecuting attorneys had no personal conflict of interest, the criminal DPAs were screened from the civil case files, and no DPA represented the defendant when he testified as an expert witness on behalf of the county.   State v. Carpenter, COA No. 53952-7-II (Apr. 14, 2021) (Unpublished).


Legal Update for Washington State Law Enforcement

The March 2021 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
WEEKLY ROUNDUP FOR APRIL 9, 2021

Washington Supreme Court

 Review Granted.  The Washington Supreme Court granted petitions for review in the following cases this week:
 
Labor Disputes and Tort Law.  Glacier NW., Inc. v. Intn’l Brotherhood of Teamsters, Local 174, No. 99319-0.  “Petition for review and cross-petition for review both granted.”  Questions presented: Does a trial court have jurisdiction to adjudicate tort claims arising from a peaceful walkout during a labor dispute?   Did the National Labor Relations Act remove state jurisdiction over an employer’s tort claims of intentional property damage related to a labor dispute?  COA opinion reported at 15 Wn. App. 2d 393 (2020).  Petition for review pleadings  available here.
 
DNA Collection and Deferred Dispositions.  State v. M.Y.G., No. 99374-2 (Spokane  County) and State v. L.A.S., No. 99379-3 (Spokane County) consolidated.  Questions presented: Does entry of a deferred disposition constitute a conviction requiring the collection of DNA under RCW 43.43.754(1)(a)?  COA opinion reported at 15 Wn. App. 2d 634 (2020) (I.A.S.) and 15 Wn. App. 2d 641 (2020) (M.Y.G.).  Petition for review pleadings  available here.
 
Bail Jumping.  State v. Bergstrom, No. 99347-5.  Spokane County–State’s Petition.  “Petition for review and cross-petition for review both granted.”   Questions presented: Whether the State must prove that the defendant knowingly failed to appear for a required hearing?  Whether the alleged error in the to-convict instruction was harmless beyond a reasonable doubt?  COA opinion reported at 15 Wn. App. 2d 92 (2020).  Petition for review pleadings  available here.
 
Prosecutor Errors in Closing Arguments and “Lustful Disposition”.  State v. Crossguns, No. 99396-3.  Spokane County– State’s Petition.  “Petition for review and cross-petition for review both granted.”   Questions presented: “Whether the prosecutor committed misconduct by inviting the jury to resolve conflicting testimony by determining who may have been lying and who may have been telling the truth in a child sexual abuse trial where credibility was a central issue?”  “Assuming the prosecutor’s brief comments were improper, was the error waived by the lack of objection, considering the heightened flagrant and ill intentioned standard of review?” Whether Washington should abandon the doctrine of “lustful disposition” because it is incompatible with ER 404(b)’s bar on propensity evidence? COA opinion is unpublished.   Petition for review pleadings  available here.
 
Early Release of “Juveniles.” Did the Independent Sentencing Review Board (ISRB) rely upon inappropriate factors when it denied release pursuant to RCW 9.94A.730 to an inmate who was 17-years-old when, while on escape status from a juvenile placement facility, he raped and murderd a 12-year-old girl, on the grounds that (1) he is a high-risk (level 3) sex offender, (2) psychological testing showed he has a high risk of violent recidivism, (3) his description of his crimes minimizes his behavior, raising doubt about his ability to understand his treatment needs and risk factors, and (4) his impulsivity, intimidating behavior, and inability to handle stress.  In re Personal Restraint of Dodge, No. 97973-1. 
 
Comments re Court Rules.  Due date for comments on a number of proposed rules is April 30, 2021.  I know everyone is busy, but it is incredibly important for offices and individual attorneys to submit comments regarding proposed rules.  Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words.  The word limit does not apply to a letter that is attached to an e-mail.  Please consider commenting on the rule proposals.
 

Division One

Excessive Use of Force.  The disciplinary review board’s (“DRB”) decision to reinstate a police officer who was terminated for violating the Seattle Police Department’s use of force policies by punching a handcuffed woman in the face hard enough to cause an orbital fracture, is so lenient it violates the explicit, well-defined, and dominant public policy against the excessive use of force in policing.  The DRB’s decision was properly vacated by the trial court as it cannot be squared with the public policy against the excessive use of force in policing, which imposes on the City an affirmative duty to sufficiently discipline officers.  City of Seattle v. Seattle Police Officers’ Guild, COA No. 80467-7-I (Apr. 5, 2021).
 
Swords and the Right to Bear Arms.  While a sword is constitutionally protected by article I, section 24 of the Washington Constitution and the Second Amendment as an “arm,” the defendant’s conviction for violating Seattle Municipal Code (SMC) 12A.14.080(b) for carrying a dangerous weapon, by wearing the sheathed sword hanging from his neck while walking around Green Lake Park, did not violate either the state or federal right to bear arms.  The ordinance is reasonably necessary to protect public safety and welfare and is substantially related to the goal of preventing sword-related injuries and violence.  The ordinance does not severely burden his constitutional rights as it allows the defendant to purchase a sword and, in a secure wrapper, carry it home, carry it to be repaired, and carry it to abodes or places of business.  Zaitzeff v. City of Seattle, COA No. 80436-7-I (Apr. 5, 2021).
 
Necessity Defense.  The court properly precluded a necessity defense tendered by a defendant who was cited for violating a Seattle ordinance that barred the carrying of a dangerous weapon.  The defendant, who wore a sheathed 24-inch long sword around his neck while walking around Green Lake Park, allegedly carried the sword because he had allegedly been assaulted in the past. The defendant’s concession, however, that “[t]here was no one imminently threatening me that particular day,” prevented the defendant from meeting his initial burden of showing that he would likely be able to submit a sufficient quantum of evidence on each element of necessity.   Zaitzeff v. City of Seattle, COA No. 80436-7-I (Apr. 5, 2021).
 

Division Three

Intercept Orders.  An intercept application that included specific facts of the case that showed potential risks to the CI’s safety that could be mitigated by the use of a body wire was sufficient to support the issued RCW 9.73.130 intercept orders. The intercept application did not simply contain standard, boilerplate information.  The application revealed that the CI reported seeing firearms in the home where the controlled buys were being made and that an intercept order would allow officers to “listen and be prepared to move in if necessary.”   State v. Gonzalez, COA No. 36412-7-III (Apr. 6, 2021). 
 
DOC Sanctions. The Department of Corrections (DOC) may not rehear a disciplinary matter whose outcome was favorable to the inmate because it believes that the first hearing officer got it wrong.  The inmate’s DOSA sentences were reinstated.  In re Personal Restraint of Wilson, COA No. 37237-5-III (Apr. 6, 2021). 
 
Juvenile Justice Act Dispositions. Because the Juvenile Justice Act of 1977 (JJA), chapter 13.40 RCW, already incorporates the offender’s youth into the act’s sentencing scheme, the disposition court may not use the offender’s youth as a basis for imposing a manifest injustice sentence.  State v. J.C. M-O, COA No. 37267-7-III (Apr. 6, 2021). 
 
Unfair Trial Due to Prosecutorial Errors.  Multiple errors by the trial prosecutor deprived the defendant of a fair trial.  Reversal of child molestation convictions required because the prosecutor asked both the detective and the child forensic examiner if they believed the children, asked the defendant if the children were lying, elicited that the defendant declined to speak with police officers about the allegation, argued his personal belief in the children’s testimony, and improperly characterized the role of defense counsel.  State v. Cook, COA No. 37274-0-III (Apr. 6, 2021). 
 
Double Jeopardy. Double jeopardy does not bar convictions of both first degree rape of a child (RCW 9A.44.073(1)), and first degree child molestation (RCW 9A.44.083(1)) for factually distinct acts committed within the same charging period.   State v. Hancock, COA No. 36978-1-III (Apr. 8, 2021). [Editor’s Note: This opinion by Judge Pennell contains a summary of multiple punishment law and merger that is a wonderful introduction to these doctrines as well as a great review for individuals already well versed in these concepts.]
 
Witness Competency.  The trial court did not abuse its discretion in finding the 7-year-old victim competent to testify.  While the child victim had memory problems regarding the identity of the abuser and the details of the abuse, she retained the ability to detail events occurring contemporaneously to the incidents of abuse.   State v. Hancock, COA No. 36978-1-III (Apr. 8, 2021). [Editor’s note: The confrontation clause is not violated when hearsay evidence is admitted from a testifying witness who is unable, whether from injury, medical condition, extreme youth or advanced age, from recalling the attack or the attacker.  The confrontation clause is satisfied by the defendant’s opportunity to question the witness at trial.  See generally United States v.Owens, 484 U.S. 554 (1988); State v. Clark, 139 Wn.2d 152 (1999).] 


New Jersey Supreme Court’s Advisory Committee on Professional Ethics

RPC 4.2 and E-mails.  “[L]awyers who include their clients in the ‘to’ or ‘cc’ line of a group email are deemed to have provided informed consent to a ‘reply all’ response from opposing counsel that will be received by the client.”  ACPE Opinion 739 (Mar. 10, 2021).  [Editor’s note:  Six other jurisdictions have reached the opposite result, See Pennsylvania (Opinion 2020-100, 1/22/20), Alaska (Opinion 2018-1, 1/18/18), Kentucky (Ethics Opinion KBA E-442, 11/17/17), New York (Opinion 1076, 12/8/15), North Carolina (2012 Formal Ethics Opinion 7, adopted 10/25/13), and New York City Bar Association (Formal Opinion 2009-01 1/2/09).  The prudent course if for an attorney to forward, rather than cc, the communication to the client to avoid inadvertent responsive communications by the client to opposing counsel.]
WEEKLY ROUNDUP FOR APRIL 2, 2021

United States Supreme Court

Fourth Amendment Seizure.  An officer seizes a person when s/he uses force to apprehend the person.  A seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting. The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.   Torres v. Madrid, No. 19-292 (Mar. 25, 2021). 
 

Washington Supreme Court

Recalls.  Despite her alleged ignorance of the law, an allegation that  Seattle Councilmember Sawant by providing picket signs and phone banking used public funds to support an unfiled ballot initiative is both factually and legally  factually sufficient to support a recall petition.  While Councilmember Sawant may not legally be recalled for encouraging citizens to protest and for encouraging protestors to gather in violation of COVID-19 restrictions, she may be recalled for opening city hall to protestors when it was closed to the public in response to the governor’s Stay Home-Stay Healthy order. Allegations that Councilmember Sawant allowed her party to have significant input into her employment decisions does not present a legally sufficient basis for a recall petition.  The charge that Councilmember Sawant disclosed Mayor Durkan’s home address, which is protected by RCW 40.24.030’s address confidentiality program, does not present a legally sufficient basis for a recall on the basis that she violated harassment statutes, but is legally sufficient under a Seattle Municipal Code provision that prohibits councilmembers from disclosing any “confidential information gained by reason of his or her official position for other than a City purpose.”.   In re Recall of Sawant, No. 99089-1 (Apr. 1, 2021). 

 

Division Three

No Contact Orders and Juvenile Dispositions.  A no contact order issued pursuant to chapter 9.46 RCW and sentencing condition that prohibited the juvenile offender from having contact with three crime victims must be vacated because the sentencing court acted beyond its authority.  The juvenile court may only order conditions of relief when the court has authority to impose community supervision.  Because a court may not order community supervision when an offender is committed to the Department of Children, Youth, and Families, the court lacks any authority to order the offender to not contact the crime victims.   State v. D.K.V., No. 37401-7-III (Apr. 1, 2021). 


Ninth Circuit

Service Dogs and the Americans With Disability Act.   The Americans With Disability Act (“ADA”) prohibits certification requirements for qualifying service dogs for three reasons: (1) the ADA defines a service dog functionally, without reference to specific training requirements; (2) Department of Justice regulations, rulemaking commentary, and guidance have consistently rejected a formal certification requirement; and (3) allowing a person with a disability to self-train a service
animal furthers the stated goals of the ADA, for other training could be prohibitively expensive.  A self-trained service dog may not automatically be excluded from “places of public accommodations.” C.L. C. Del Amo Hospital, No. 19-56074 (9th Cir. Mar. 30, 2021). 
 

Michigan Court of Appeals

Drones and the Fourth Amendment. Low-altitude (under 400 feet), unmanned, specifically-targeted drone surveillance of a private individual’s property intrudes into that person’s reasonable expectation of privacy.  Such surveillance implicates the Fourth Amendment and is illegal without a warrant of a traditional exception to the warrant requirement.  Long Lake Township v. Maxon, No. 349230 (Mich. App. Mar. 18, 2021). 
 

State of New York Court of Appeals

Special Prosecutors. A “well-intentioned” statute that created a special prosecutor, appointed by the Governor, empowered to investigate and prosecute crimes of abuse or neglect of vulnerable victims in facilities operated, licensed, or certified by the State, is unconstitutional on the grounds that it is an impermissible delegation of the county district attorney’s prosecutorial authority.   People v. Viviani, Nos. 15-17, 2021 WL 1177916  (N.Y. App. Mar. 30, 3031).
 
WEEKLY ROUNDUP FOR MARCH 26, 2021

Washington Supreme Court

Lesser Included and Lesser Degree Crimes. A defendant is entitled to a lesser included offense instruction under the Workman test when a jury could reasonably find, based on evidence submitted and the jury’s decision about whether it is credible or not, that the defendant committed only the lesser offense. A defendant, however, is not entitled to a lesser included instruction merely because a jury could ignore some of the evidence. “The type of evidence that ‘must be presented which affirmatively establishes the defendant’s theory on the lesser included offense’ is not limited to evidence elicited on direct examination; in particular cases, it might include evidence elicited on cross-examination, such as impeachment evidence, evidence of bias, or inability to recall.” Slip op. at 10.   State v. Coryell, No. 98256-2 (Mar. 25, 2021).  The State was represented by Thurston County DPA Joe Jackson.

Division One

Distribution of Marijuana to a Minor.  Evidence that a random sampling  of the substance seized from the defendant’s home, which found a THC concentration greater than 0.3 percent on a dry weight basis, coupled with testimony that a number of minors were repeat customers of the defendant and that substance of less than 0.3 percent THC would not be capable of producing the psychological effects the minors sought, provided sufficient evidence to support the defendant’s convictions for distributing marijuana to minors.   State v. Crocker, COA No. 82067-2-I (Mar. 1, 2021, publication ordered Mar. 19, 2021).
 

Division Three

Anti-Harassment Civil Protection Orders. A court only has jurisdiction to grant a parent’s petition for a civil protection order on behalf of their minor children that seeks to restrain another child, when the respondent child has been adjudicated or investigated for an offense against the child to be protected.  “Investigation” for an “offense” under the terms of the statute requires a criminal inquiry by law enforcement that extends beyond mere passive receipt of information.  In the absence of such an investigation, the superior court lacks authority for issuing a protection order against the respondent child.  In re Petition for an Order for Protection of K.G.T., COA No. 36988-9-III (Mar. 25, 2021).

Ethics Advisory Committee.

Sitting Judges and Judicial Opponents.  A sitting district court judge is not automatically disqualified from hearing matters in which the elected prosecuting attorney, who is running against the judge in a current election to be the superior court for the county, appears on behalf of the State.  The judge must recuse if s/he determines on a case by case basis that his/her impartiality might be reasonably questioned.  If the judge determines that his/her impartiality might not be reasonable questioned, the judge should disclose the nature of the relationship on the record and offer to refuse.  If a party accepts the judge’s offer to recuse under these circumstances, the judge must recuse.  Recusal will rarely be required when a deputy of the elected prosecuting attorney appears while the elected prosecuting attorney is a political opponent of the judge.  Opinion 21-01 (Mar. 19, 2021).

Ninth Circuit

Second Amendment and Open Carry.  A Hawaii firearm licensing law which requires that residents seeking a license to openly carry a firearm in public must demonstrate “the urgency or the need” to carry a firearm, must be of good moral character, and must be “engaged in the protection of life and property,” HRS § 134-9, regulate conduct that is outside the historical scope of the Second Amendment.  Because the Second Amendment does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense, HRS § 134-9 is lawful.  Young v. Hawaii, No. 12-17808 (9th Cir. Mar. 24, 2021). 
 
WEEKLY ROUNDUP FOR MARCH 19, 2021

Washington Supreme Court

Supreme Court’s Original Jurisdiction. The petitioner’s challenge to King County’s bail practices, which he brought as an original action for a writ of prohibition or mandamus against the Judges of the King County Superior Court and Prosecutor Satterberg is dismissed as moot.  The public interest exception to the mootness doctrine does not apply to actions where the act sought to be prohibited has already occurred.  The petitioner cannot be considered beneficially interested in the bail practice at this time and he had a number of adequate, alternative legal remedies to a mandamus action.  writ of mandamus.  The Court lacks jurisdiction to issue declaratory relief in an original action.   Pimentel v. Judges of King County Superior Court, No. 98154-0 (Mar. 18, 2021).  [Editor’s Note: Because the Court dismissed the petition as moot, it did not reach the question of whether a county prosecutor is a state officer for purposes of article IV, section 4 of the Washington Constitution.]  Prosecutor Satterberg was represented in this case by King County DPA Ann Summers.  The WAPA amicus curiae brief was authored by Pam Loginsky.
 
Cross-examination and Confidential Informant Agreements.   The trial court violated the defendant’s rights to confrontation and to present a complete defense when it barred him from cross-examining a witness on the nature and extent of that witness’s work as a confidential informant for the King Police Department.  The single question the defendant was allowed to ask, tended to obfuscate, rather than highlight, any potential bias. The error, however, was harmless.  State v. Orn, No. 98056-0 (Mar. 18, 2021).  The State was represented in this case by King County DPAs Jim Whisman and Jennifer Joseph.
 
Attempted First Degree Murder.  The to-convict jury instruction for attempted first-degree murder which was based on WPIC 100.2, was sufficient.  The trial court did not err by declining to add the word “premeditated” to element 2.  State v. Orn, No. 98056-0 (Mar. 18, 2021).  The State was represented in this case by King County DPAs Jim Whisman and Jennifer Joseph.
 
Standing to Bring a Tort Claim.  A brother has standing to bring an action for interference with his deceased brother’s body.  Fox v. City of Bellingham, No. 98514-6 (Mar. 18, 2021). 
 

Division Three

Animal Analogies.  “The use of animal analogies at trial is problematic. Many animal comparisons operate as racist code. Others are simply dehumanizing. But there is no hard and fast rule. Not all animal analogies are inherently improper. When a particular analogy does not clearly convey an improper message, an appellate court should not be quick to find offense.” The State’s analogy in closing argument, which compared the defendant to a hornet’s nest, was plausibly aimed at describing the defendant’s erratic behavior.  Given this possible interpretation, and the defendant’s lack of objection at trial, the defendant is not entitled to the relief he requests.  In re Personal Restraint of Richmond, COA No. 37057-7-III (Mar. 18, 2021).  Judge Fearing dissented.
 
Crime Victim Property. The mere fact that a crime is under investigation does not excuse law enforcement’s refusal to return crime victim property.  Law enforcement may retain crime victim property only if the item of property is needed as evidence and if a photograph cannot serve as a sufficient evidentiary substitute.  Burton v. City of Spokane, COA No. 37205-7-III (Mar. 18, 2021).
 
Showup Identification. The single suspect in the field showup identification did not violate the defendant’s due process rights.  The procedure, which was proceeded by the police telling the witness prior to the confrontation that “just because [you are] going to look at a female suspect, it doesn’t necessarily mean it [is your] suspect,” was not impermissibly suggestive. The police were not required to take a picture of the suspect, release her, and sometime later show the witness the suspect’s picture in a photomontage with other women.  The witness’s identification was reliable under the Biggers factors.  See Neil v. Biggers, 409 U.S. 188 (1972).   State v. Scabbyrobe, COA No. 37124-7-III (Mar. 18, 2021).  Judge Fearing dissented.
 

I Can’t Believe They Said That

 “Rules of Evidence” Argument.  It is reversible error for a prosecutor to imply that there is additional evidence of guilt that the jury will not hear because of the rules of evidence.  A prosecutor may not suggest to a jury that the State has evidence against a defendant beyond that presented at trial.  State v. Banks, No. SC S067549 (Oregon Feb. 25, 2021). 
 
False Narrative.  “Prosecutors are required to turn square corners because their overriding duty is to do justice.” A prosecutor may not exploit the suppression of evidence to present a false narrative.  In this case, the trial court erroneously suppressed a defense video of defendant family members attempting to give their accounts to police officers at the scene. The prosecutor’s summation, in direct conflict with this video, targeted the credibility of defendant’s family members, urging the jury to disbelieve their testimony because they did not come forward and give their accounts to the detective or the police officers at the scene.  The prosecutor’s conduct denied the defendant a fair trial.  State v. Garcia, No. 083568 (N.J. Mar. 10, 2021). 
 

Ethics Resources

Virtual Practice.  “The ABA Model Rules of Professional Conduct permit virtual practice, which is technologically enabled law practice beyond the traditional brick-and-mortar law firm. When practicing virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology. In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information. Additionally, the duty of supervision requires that lawyers make reasonable efforts to ensure compliance by subordinate lawyers and nonlawyer assistants with the Rules of Professional Conduct, specifically regarding virtual practice policies.” American Bar Association, Formal Opinion 498 (Mar. 10, 2021) (footnote omitted).
 
Working Remotely. “The basic responsibilities that a lawyer owes the client – competence, diligence, communication, and  confidentiality – lie at the core of lawyer’s professional obligations and remain unchanged irrespective of the lawyer’s physical location. What has changed is discharging these responsibilities effectively in a world increasingly dominated by technology and, more recently, in an environment where lawyers are isolated from their clients, their partners, their opponents and the courts in the face of the COVID-19 pandemic. The role of the partners, managers and supervising attorneys, whose responsibilities include insuring that both attorneys and non-attorneys in the firm, regardless of their location, comply with the requirements of SCR Chapter 20, is of increasing importance. Although certain current modifications in practice may diminish as the pandemic does, many are likely to continue as the profession and technology evolve. This opinion addresses several ways a lawyer’s responsibilities are affected.”  Wisconsin Formal Ethics Opinion EF-21-02 (Jan. 29, 2021). [Editor’s Note: The Wisconsin ethics rules cited in the opinion are identical to or substantially the same as Washington RPC 1.1, RPC 1.3, RPC 1.4, RPC 1.6, RPC  5.1, RPC 5.3, and RPC 5.5. ]

 
WEEKLY ROUNDUP FOR MARCH 12, 2021

Washington Supreme Court

Youthfulness, Aggravated First Degree Murder, and 19- and 20-Year-Olds. Wash. Const. art. I, § 14, requires a court to impose an individualized sentence as to defendants who were 19- or 20-year-old at the time they committed the crime of aggravated first degree murder.  A mandatory sentence of life imprisonment without parole (LWOP) cannot be imposed on such defendants, instead they are entitled to have the sentencing court consider the mitigating qualities of youthfulness.  Defendants in this group have a right to resentencing regardless of how long ago their convictions became final.   In re Personal Restraint of Monschke, No. 96772-5 (Mar. 11, 2021).  Plurality opinion– Lead opinion authored by Justice Gordon McCloud and joined by Justices Yu, Montaya-Lewis, and Whitener.  Concurring opinion – Justice González.  Dissenters – Justices Owens, Johnson, Madsen, and Stephens.  The State is represented in these consolidated cases by Pierce Cty DPA Teresa Chen. [Editor’s Note: The Court gives warning in its opinion that it will not necessarily defer to legislative bright-line drawing when determining what constitutes cruel punishment. Future determinations of whether to increase the age group will not be subject to either the Bassett categorical test or the Fain proportionality test.]
 

Division One

Cyberstalking.  Washington’s cyberstalking statute, RCW 9.61.260, is overbroad but its constitutionality can be preserved with a sufficiently limiting construction. The intent to harass, intimidate, or torment requirement sufficiently limits the statute’s reach to conduct, punishing not the content of speech, but rather the selection of a victim and directing the speech in such a way as to cause a specific harm to the victim.  Prosecutions cannot, however, be constitutionally pursued based upon an intent to embarrass.  State v. Mireles, COA No. 79923-1-I (Mar. 8, 2021).
 
Animal Cruelty.   RCW 16.52.205(2) is not an alternative means crime. The jury must unanimously find that the defendant deprived the animal of the necessities of life, but need not unanimously find that the defendant starved, dehydrated, suffocated, or exposed the the animal to excessive heat or cold. Jury instructions for first degree animal cruelty must include “as a result causes” language as the defendant’s mens rea must be linked to the harm suffered.  State v. Jallow, COA No. 79417-5-I (Mar. 8, 2021).
 

Division Two

Criminal Legal Malpractice.  An action alleging criminal legal malpractice is timely if filed within three years of an order granting post-conviction relief.  Flynn v. Pierce County, COA No. 53703-6-II (Mar. 9, 2021).


Division Three

Criminal Informants.  An arrested person’s statement in which she identified the person who was her drug dealer was insufficient to support an investigative stop of the person. While there was no question about the arrested person’s knowledge, there is not evidence that the arrested person (criminal informant) was credible.  Given that the criminal informant was caught red-handed, her willingness to admit to drug possession was not particularly impressive and the information as to the source of the drugs she possessed was not amenable to being either refuted or verified. Absent corroboration the confidential informant’s statement did not provide a sufficient basis for an investigative stop.  State v. Morrell, COA No. 37160-3-III (Mar. 9, 2021).

 
Legal Update for Washington State Law Enforcement

The  February 2021 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 
WEEKLY ROUNDUP FOR MARCH 5, 2021

Washington Supreme Court

 The Washington Supreme Court granted review this week of the following cases:

THC DUIs.  State v. Fraser, No. 98896-0.  Snohomish County.  Questions presented: Whether RCW 46.61.502(1)(b) (the per se THC DUI statute) is an unlawful exercise of the Legislature’s police powers?  Whether the statute is unconstitutional as applied to the defendant’s conduct as it fails to provide ascertainable standards of guilty to protect against arbitrary enforcement?  Whether the statute is facially unconstitutionally overbroad because of a lack of scientific evidence to support the per-se concentration of active THC standard?  Direct discretionary review so no COA opinion. 

Credit for Pre-Trial Detention.  State v. Enriquez-Martinez, No. 99101-4.  Klickitat County.  Question presented:  Whether a defendant is entitled to receive credit against his Washington sentence for presentence time he was in-custody in Oregon  waiting resolution of his Oregon criminal charges while simultaneously under arrest pursuant to a warrant issued by the Klickitat County Superior Court pending resolution of his Washington criminal charges?  COA opinion reported at 14 Wn. App. 2d 192 (2020).  Petition for review pleadings  available here.

 
Burglary.   State v. Moreno, No. 99147-2. Snohomish County.  Questions presented: “Granted only on the issue whether knowledge of unlawfulness of entry is an essential element of burglary.” COA opinion reported at 14 Wn. App. 2d 143 (2020).  Petition for review pleadings  available here.
 

Pre-SRA Minimum Terms.  In re Personal Restraint of Gallegos, No. 98917-6.  AG’s Office–Pierce County Conviction.  Questions presented:  “[W]hether the ISRB’s 720 month minimum term violated the ex post facto clauses and whether the Court should revisit the ex post facto clause holding of In re Personal Restraint of Powell, 117 Wn.2d 175, 814 P.2d 635 (1991).”  Direct discretionary review so no COA opinion.

Duty to Motorists and Roadside Trees.  Evans v. Spokane County, No. 99283-5. Spokane County’s Petition for Review.  Questions presented: Does the County’s duty to motorists includes a duty to inspect for and anticipate possible or probable dangers associated with a roadside tree being blown down in extreme winds?  Where evidence about the visibility of an alleged defect in a roadside tree is disputed in a negligence suit arising out of the tree’s failure in extreme winds, must a trial court instruct the jury that notice of an unsafe tree can only be imputed if a defect in the tree was patent and readily observable by a layperson? Where the County’s evidence showed that the winds that blew down a roadside tree were exceedingly rare in terms of both their frequency and strength and that the County could not predict where such winds would strike, is it entitled to jury instructions stating it cannot be liable if the winds were an act of God or an intervening cause of the accident that superseded any County negligence?   COA opinion is unpublished.   Petition for review pleadings  available here.

 
Contractor Liability.  Lake Hills Inv., LLC v. Rushforth Constr. Co., Inc., No. 99119-7.  “Petition for review granted. Review of the Respondent’s conditional harmless error issue denied.”  Questions presented: If the contractor is bound to build according to the plans and specifications prepared by the owner, what is the contractor’s responsibility for the consequences of defects in the plans and specifications?  COA opinion reported at 14 Wn. App. 2d 617 (2020). Petition for review pleadings  available here.

 
Division Two

Forfeiture. The property owner’s due process rights were violated when the Tacoma Police Department (TPD) did not attempt to provide her with notice after the first notice was returned as undeliverable.  The forfeiture default order violated RCW 34.05.461(3) by failing to inform the property owner of her right under the Administrative Procedures Act (APA), chapter 34.05 RCW,  to move to set aside the default order or to file a petition for judicial review of the default order.  The due process and statutory violations required that the property owner’s motion to set aside the default order be granted even though she did not file the motion within the statutory time frames.  Tacoma Police Department v. $51,657.39 United States Currency, COA No. 54510-1-II (Mar. 2, 2021). 
 

Division Three

Making or Possession Motor Vehicle Theft Tools.  A mens rea is an essential element of making or possessing motor vehicle theft tools under RCW 9A.56.063(1) that must be included in the charging document and element jury instruction. The mens rea may be either “intent to use or employ, or allow the [tool] to be used or employed in the commission of motor vehicle theft” or “knowing that the [tool] is intended to be so used.”  State v. Bacon, COA No. 37232-4-III (Mar. 2, 2021). 
WEEKLY ROUNDUP FOR FEBRUARY 26, 2021

Washington Supreme Court

Simple Possession of Drugs.  Washington’s strict liability drug possession statute, RCW 69.50.4013, makes possession of a controlled substance a felony exceeds the State’s police power and violates the due process clauses of the state and federal constitutions. Unintentional, unknowing possession of a controlled substance is the sort of innocent, passive nonconduct that falls beyond the State’s police power to criminalize. The affirmative defense of “unwitting possession,” is insufficient to save Washington’s strict liability drug possession statute.  The statute cannot be saved by a judicially added mens rea element.   State v. Blake, No. 96873-0 (Feb. 25, 2021).  Justices Stephens, concurred in part and dissented in part.  She would have added an implied mens rea.  Justices Johnson, Madsen, and Owens dissented. State represented by Spokane County DPA Brett Pearce. WAPA Amicus Brief Authored by Phil Buri.  
 
State’s Appellate Rights.  The State has a right to appeal a superior court order granting a CrR 7.8(b) motion for relief from judgment in a long-since final criminal case under RAP 2.2(b)(3).  An order that grants a defendant a resentencing hearing, necessarily vacates the old sentence until the defendant can be resentenced.  The State, therefore, may appeal as a matter of right from such an order.   State v. Waller, No. 98326-7 (Feb. 23, 2021).  State represented by King County DPA Jim Whisman.  
          


Division One

Promoting Prostitution.  RCW 9A.88.060(1) merely furnishes a definition of the element of “advances prosecution” of the crime of promoting prostitution in the second degree, and does not create additional essential elements. As such, the definition of the element “advances prosecution”  need not be alleged in the charging document. The definition of “advancing prostitution” and RCW 9A.88.080, are not unconstitutionally vague.   Sufficient evidence supports that the defendant’s actions went beyond those of a customer, where the defendant, in addition to his personal sex-purchasing behaviors, referred sex buyers to specific sex workers and agencies,  scheduled appointments for sex buyers, vouched for would-be customers, and gave them detailed instructions about how to get through screening processes, advised enterprise owners with regard to specific apartment complexes to use, connected individual sex workers with bookers and agencies, and ran a website on which agencies and individual sex workers could post advertisements. The defendant’s speech was not protected by the First Amendment as it was both intended to produce and likely to produce unlawful activity.   State v. Peters, COA No. 79348-9-I (Feb. 22, 2021).
 
Closing Argument and “Knowledge.” The defendant was not prejudiced by the prosecuting attorney’s misstatement of the law regarding “knowledge,” in his rebuttal argument, as the prosecutor correctly stated the law in his opening argument and defense counsel correctly stated the law in his closing argument.   State v. Peters, COA No. 79348-9-I (Feb. 22, 2021).
 
Firearm Storage.  The gun owners who brought this suit had standing under the Uniform Declaratory Judgment Act to bring a pre-enforcement challenge to Edmond’s ordinance which made it a civil infraction to store unlocked any firearm and to allow access to such a firearm by children or others not permitted by law to possess it.  The ordinance is preempted by RCW 9.41.290, as the sphere that the state “fully occupies” under that statute with respect to firearms regulation extends far beyond the enumerated activities due to the use of the term “including.”  City of Edmonds v. Bass, COA No. 80755-2-I (Feb. 22, 2021). 

       
Division Two

Guilty Pleas.  A guilty plea to an amended charge that is not supported by a factual basis  where there is a factual basis for the original charge pursuant to In re Personal Restraint of Barr, 102 Wn.2d 265 (1984), can be for a greater offense than the dismissed charges.  The defendant’s Barr guilty plea to identity theft was properly accepted even though the offense was greater than the original charges it replaced, as the plea benefitted the defendant by reducing the amount of prison time she was exposed to on the original charges and the defendant understood the consequences of the plea.   State v. Wilson, COA No. 53715-0-II (Feb. 23, 2021).  Judge Worswick dissented.
 
No Contact Order.  The sentencing court did not err by entering a 10-year no contact order prohibiting the defendant from having contact with the victim of unlawful imprisonment.  Although the statutory maximum sentence for unlawful imprisonment is five years, the victim was also a witness with relevant information about the burglary count which has a statutory maximum of 10-years.  A no contact order may be entered to protect a non-victim witness. State v. Duran, COA No. 53940-3-II (Feb. 23, 2021).
 

Division Three

Bail Jumping. The 2020 modifications to the crime of bail jumping do not apply to crimes committed before June 11, 2020.  A statute that changes the elements of a crime will only be given prospective effect.   State v. Hoffman, COA No. 36851-3-III (Feb. 23, 2021).
 

Racially Discriminatory Real Estate Covenants.  The granting of a petition to “strike” racially discriminatory provisions from real estate contracts pursuant to RCW 49.60.227, results in a court order that removes the language as a matter for law from the documents.  The offending language is not physically and permanently removed from existing records.  May v. Spokane County, COA No. 37179-4-III (Feb. 23, 2020).  Judge Fearing dissented.

WEEKLY ROUNDUP FOR FEBRUARY 19, 2021

Washington Supreme Court

Fair Campaign Practices Act.  A “citizen’s action” under former RCW 42.17.765(4)(a)(iii) challenging an alleged campaign practices violation is time-barred unless it is filed within 10 days after the citizen gives notice to the attorney general and the county prosecuting attorney of the citizen’s intent to file suit unless those agencies commence an enforcement action.  Freedom Found. v. Teamsters Local 117 Segregated Fund, No. 97109-9 (Feb. 18, 2021). Justice Gordon McCloud authored a dissent, which was joined by Justices González and Whitener.  Justice Madsen wrote a separate dissent.  [Editor’s note: This case contains another good discussion regarding jurisdiction of a court.  Case also discusses the differences between a statute of limitations and a prerequisite to filing an action.]
 

Division One

Animal Cruelty.  RCW 16.52.205(2) is not an alternative means crime. The jury must unanimously find that the defendant deprived the animal of the necessities of life, but need not unanimously find that the defendant starved, dehydrated, suffocated, or exposed the the animal to excessive heat or cold. Jury instructions for first degree animal cruelty must include “as a result causes” language as the defendant’s mens rea must be linked to the harm suffered.  State v. Jallow, COA No. 79417-5-I (Feb. 16, 2021).
 
CrR 3.2.1/CrRLJ 3.2.1. A defendant who is arrested pursuant to a warrant is not entitled to a preliminary appearance hearing pursuant to CrR 3.2.1(d)(1)/CrRLJ 3.2.1(d)(1).  CrR 3.2.1(d)(1)/CrRLJ 3.2.1(d)(1) only apply to warrantless arrests.   State v. Reisert, COA No. 80267-4-I (Feb. 16, 2021). 
 
Double Jeopardy and Violation of Protection Orders.  A defendant who contacted a person with three separate no-contact orders against him may only be punished for a single violation of RCW 26.50.110.   State v. Madden, COA No. 80302-6-I (Feb. 16, 2021). [Editor’s Note: Charging a single count under these circumstances is a reasonable course.  If, however, you list more than one order in the charging document and in the “to convict” instruction, you will need to submit special verdict forms to ensure that the jury was unanimous as to one or more of the orders.  It is also proper to charge one count per court order and to resolve the double jeopardy issues post verdict. See State v. Michielli, 132 Wn.2d 229, 238-39 (1997) (merger doctrine cannot be used to dismiss a charge prior to trial because the court cannot predict on which charges the defendant will be conficted).  A count of criminal contempt may also be filed per order as the unit of prosecution for criminal contempt is each court order violated.  See RCW 7.21.010(1)(b) and .040.  RCW 26.50.110(3) allows a defendant to be punished for both the violation of the no contact order and the contempt.]
 

Officer Use of Force. Officers owe a legal duty to exercise reasonable care when engaging in affirmative conduct toward others, whether they be crime victims or individuals suspected of committing crimes.  Whether the use of lethal force against a person who, after requesting the officers’ presence to investigate a burglary, purportedly assaulted the officers with a knife is a question for the trier of fact.  Washington’s felony defense statute, RCW 4.24.420, does not provide complete immunity to the officers as there is a question of fact as to whether the decedent, who suffered from a mental illness, formed the specific mens rea for assault.  The decendent’s expert’s “psychological autopsy” should have been admitted by the trial court and was sufficient to create a question of fact as to the decedent’s mens rea.  The officers are not entitled to queslified immunity as there are genuine questions of material fact as to whether the officers followed the proper procedures in responding to the knife attack and whether both officers acted reasonably in using lethal force against the decedent.  Genuine issues of material fact require the jury to decide whether the decedent assumed the risk that she would be shot when she attacked the officers with a knife.  Watness v. City of Seattle, COA No. 79480-9-I (Feb. 16, 2021).

Division Two

Felony-Based Civil Commitments.  The State need not prove that the mentally ill person intended to commit a crime therein in order to obtain a felony-based commitment pursuant to RCW 71.05.320  following the dismissal of the person’s burglary charge pursuant to RCW 10.77.086(4) due to the person being incompetent to stand trial.  While intent to commit a crime separates burglary from trespass, RCW 71.05.280(3)(a), which provides that “[i]n any proceeding pursuant to this subsection it shall not be necessary to show intent, willfulness, or state of mind as an element of the crime,” does not contain an exception for specific intent crimes like residential burglary.  Creating such an exception would be contrary to the legislature’s intent to provide treatment for an individuals whose acts present a danger and whose mental illness makes it highly likely that the individual will commit similar acts.  In re Detention of M.L.H., COA No. 53436-3-II (Feb. 17, 2021). 
 

Pennsylvania Superior Court

GPS Data. Computer generated GPS data cannot be deemed hearsay because it is an assertion made by a machine, not an assertion made by a person.  Commonwealth v. Wallace, 2021 Pa. Super. 4 (Pa. Super. Jan. 8, 2021). [Editor’s Note: Washington’s ER 801 is the same as the Pennsylvania rule and evidence rules relied upon in the collected federal and state cases.] 
WEEKLY ROUNDUP FOR FEBRUARY 12, 2021

Washington Supreme Court

Open Public Meetings Act and the WSBA.  The Open Public Meetings Act, chapter 42.30 RCW, does not apply to the Washington State Bar Association.  Beauregard v. Washington State Bar Association, No. 97249-4 (Feb. 11, 2021).   Justice Madsen was the lone dissenter.
 
Miller and Indeterminate Sentences. RCW 9.94A.730 applies to individuals who committed crimes prior to their eighteenth birthday before the Sentencing Reform Act was adopted. Parol hearings are not the function equivalent to an RCW 9.94A.730 hearing because an RCW 9.94A.730 includes a statutory presumption of early release and the parole statutes place the burden on the incarcerated person to demonstrate rehabilitation.    In re Personal Restraint of Brooks, No. 97689-9 (Feb. 11, 2021).
 
Recall Election.  A sheriff has discretion in how to enforce Governor Inslee’s mask order.  A sheriff who exercises that discretion to not criminally enforce the mask mandate, while encouraging everyone to comply with the mandate, is not subject to recall unless his exercise of discretion is “manifestly unreasonable.”  Sheriff Snaza’s exercise of discretion was not manifestly unreasonable as he did not announce a blanket refusal to enforce the order, nor did he denounce the mask mandate and encourage people to violate the order.    In re Recall of Snaza, No. 98918-4 (Feb. 11, 2021).  Thurston County DPA Donald Peters represented Sheriff Snaza.
 

Division One

Tolling of Misdemeanant Probation.  Probation of a sentence that has been deferred or suspended is only tolled when the defendant fails to appear for a hearing to address the defendant’s compliance.  The term of probation is not tolled by the issuance of a bench warrant for non-compliance with the sentence.   City of Seattle v. Makasini, COA No. 80745-5-1 (Feb. 8, 2021).  [Editor’s note: While this case deals with RCW 35.20.255, the relevant language is identical to that contained in RCW 3.66.067.  In order to toll probation, a summons must first be sent to the defendant that requires the defendant to appear for a hearing to address the violations.]
 

Opinion Evidence. Admission of an officer’s lay opinion identifying the defendant in a surveillance tape  was an abuse of discretion where the surveillance tape was of high quality and the officer only had limited prior contact with the defendant.  The admission of the lay opinion was not harmless as it was accompanied by the officer’s testimony of prior contacts with the defendant which led the jury to conclude that the defendant had committed prior criminal acts, and the judge’s denial of a requested limiting instruction.  State v. Sanjurjo-Bloom, COA No. 80367-1-I (Feb. 8, 2021).

Division Two

Collateral Attacks and Neurodevelopment of Late Adolescents.   Evidence related to the neurodevelopment of late adolescents is not newly discovered evidence that will allow a collateral attack to be filed beyond the one year period specified in RCW 10.73.090(1).  Research regarding the neurodevelopment of late adolescents existed in 2003, four years before the defendant’s 2007 sentencing hearing.  Court, furthermore, recognized the difference in late adolescents as early as the late 1990s.   In re Personal Restraint of Kennedy, COA No. 53360-0-II (Feb. 9, 2021).
 
Possession With Intent to Deliver and Corpus Delicti.  Defendant’s incriminating statements in which he admitted to selling small amounts of methamphetamine inside his apartment and in the alley behind his apartment should not have been admitted into evidence due to a lack of corpus delicti.  The 10 grams of methamphetamine, scale, plastic grocery store bags, and a pipe in the defendant’s living room only provide sufficient corroborating evidence for statements related to mere possession. This is because it is not uncommon for drug users or addicts to have a scale and intact grocery store bags.   State v. Sprague, COA No. 53370-7-II (Feb. 9, 2021).  Judge Melnick concurred in the result (an affirmation of the conviction), but believed that sufficient corroborating evidence supported admission of the defendant’s confession.
 
Trial Continuance.  The trial court did not abuse its discretion by denying a defense request for a continuance based upon the State’s disclosure the morning of trial that the officers testifying in the defendant’s case had completed a controlled buy from his prior to executing the search warrant underlying the present case.  This information was irrelevant to the trial as the State was not seeking to admit the fact of the prior competed delivery into the current trial and recesses were granted to allow the defendant to consider the State’s new plea offer.  State v. Sprague, COA No. 53370-7-II (Feb. 9, 2021).  Judge Melnick authored a concurring opinion that parted ways from the majority as to the existence of sufficient corroborating evidence to support admission of the defendant’s confession.
 
Removal from Office.  Recall is not the sole means of removing an elected officer from office.  The legislature has the absolute authority to enact statutes that provide for the removal of any officer who is liable to impeachment.  Laws that provide for the removal of elected officials include RCW 9.92.120 (forfeiture of office if convicted of a felony or malfeasance), RCW 42.12.010(3), (5)-(8), which states that an office becomes vacant upon  conviction of a felony, refusal to take his or her oath of office, or on the decision of a competent tribunal voiding the election or appointment, or a judgment determining the incumbent has breached the condition of his or her official bond, and the quo warranto statutes do not violate the Washington Constitution.  Johnson v. Washington State Conservation Commission, COA No. 54173-4-II (Feb. 9, 2021).


United States Department of Justice

Firearms and Tool Marks.  Statement refuting the President’s Council of Advisors on Science and Technology’s conclusions in the September 2016 report, Forensic Science in Criminal Courts: Ensuring Scientific Validiety of Feature-Comparison Methods.  Statement explains why certain statements are incorrect.
 

Montana Supreme Court

Real Time Two-Way Videoconference Testimony.  The defendant was denied his constitutional right to confront witnesses against him when the prosecution presented a foundational witness in real time by two-way videoconference.  Both prongs of the test announced in Maryland v. Craig, 497 U.S. 836 (1990), must be satisfied before physical face-to-face confrontation at trial may be dispensed with.  Neither judicial economy nor significant travel costs and inconvenience to the witness will satisfy the  first prong, “to further an important public policy,” of the Craig test.  State v. Mercier, 2021 MT 12 (Jan. 26, 2021). [Editor’s Note: This opinion contains a good survey of cases from numerous jurisdictions and explains why Crawford did not “declare the proverbial death knell to Craig.”]
 

American Bar Association

Conflicts of Interest. Rules 1.9(a) and 1.18(c) address conflicts involving representing a current client with interests that are “materially adverse” to the interests of a former client or prospective client on the same or a substantially related matter.  Neither rule, however specifies when the interests of a current client are “materially adverse” to those of a former client or prospective client. “‘Material adverseness’ under Rule 1.9(a) and Rule 1.18(c) exists where a lawyer is negotiating or litigating against a former or prospective client or attacking the work done for the former client on behalf of a current client in the same or a substantially related matter. It also exists in many but not all instances, where a lawyer is cross-examining a former or prospective client.”   American Bar Association, Conflicts Involving Materially Adverse Interests, Formal Opinion 497 (Feb. 10, 2021). [Editor’s Note: RPC 1.9(a) applies to a criminal defense attorney whose former client is being called as a prosecution witness.  These situations require the criminal defense attorney to withdraw unless the former client is willing to waive his/her duty of loyalty and confidentiality of secrets.  A wise prosecutor should always request a waiver from the defense attorney’s current client in addition to the waiver from the former client.  WAPA has colloquy/waiver forms for both the prior client and current client.]
WEEKLY ROUNDUP FOR FEBRUARY 5, 2021

Washington Supreme Court

General-Specific Rule. The general-specific rule does not preclude a charge of second degree manslaughter (general statute) filed against an employer for the workplace death of an employee, because not every violation of RCW 49.17.190(3), violation of labor safety regulation with death resulting (specific statute) will also violate the general statute.  The workplace safety statute only requires the State to prove a wilful and knowing violation of a safety or health standard that resulted in a death, while manslaughter requires proof that the defendant’s criminal negligence caused the death. A different conclusion that the difference in the object of the two statutes’ mens rea have different objects would violate the general rule that statutes should not be constructed in a manner that leads to absurd results.  State v. Numrich, No. 96365-7 (Feb. 4, 2021).  Chief Justice González filed a partial dissent in which he opined that the sanctions imposed against the State were unwarranted.  Justice Yu joined Chief Justice González’s partial dissent.  Justice Gordon McCloud dissented.  The State was represented in this case by King County DPAs Patrick Hinds and Eileen  Alexander.
 
Amended Information. The trial court did not abuse its discretion by granting the State’s motion to amend the information to add a count of first degree manslaughter so as to stop the running of the statute of limitations as to that crime.  Sanctions, however, were properly imposed upon the State as the amendment was not based upon additional facts or discovery or new legal theory, and was filed after the defendant sought discretionary review of the trial court’s denial of the defendant’s motion to dismiss a manslaughter in the second degree count under the general-specific rule.  State v. Numrich, No. 96365-7 (Feb. 4, 2021).  Chief Justice González filed a partial dissent in which he opined that the sanctions imposed against the State were unwarranted.  Justice Yu joined Chief Justice González’s partial dissent.  Justice Gordon McCloud dissented.  The State was represented in this case by King County DPAs Patrick Hinds and Eileen  Alexander.
 
Collateral Attacks and Equitable Tolling.  The Washington Supreme Court has “inherent authority” to extend the time bar in RCW 10.73.090 in response to a timely filed motion based on adequate grounds. A petitioner’s own attorney’s misconduct can give rise to cause for equitable tolling under the federal standard that the court adopts to supplement its own.  A petitioner seeking equitable tolling under the federal standard bears the burden of showing (1) that they diligently pursued their rights and (2) that an extraordinary circumstance prevented a timely filing. Neither bBad faith, deception, or false assurances by the State or the court is necessary to justify equitable tolling.  In re Personal Restraint of Fowler, No. 97456-0 (Feb. 4, 2021).  Justices Whitener, Owens and Stephens dissented.  The State was represented in this case by Kitsap County DPA Randall Sutton.
 

Division One

Felony Bar Statute.  A defense motion for summary judgment predicated on the felony bar statute, RCW 4.24.420, which creates a complete defense to any action for damages for personal injury or wrongful death if the person injured or killed was engaged in the commission of a felony at the time of the injury or death and the felony was a proximate cause of the injury or death, is improperly granted when there are questions of material fact over whether the person injured or killed had the ability to form the necessary mens rea to commit the  felony.  Neither a felony conviction nor an admission to felonious conduct is a predicate to the application of RCW 4.24.420. Davis v. King County, COA No. 79696-8-I (Feb. 1, 2021). [Editor’s note: This opinion replaces the unpublished opinion that was issued on August 31, 2020, that reached the opposite result.] 
 
Division Two
Community Custody Supervision Fees.  Community custody supervision fees are not “costs” as defined by RCW 10.01.160(2).  A sentencing court may order an indigent defendant to pay these fees. State v. Starr, COA No. 53147-0-II (Feb. 2, 2021).  Judge Worswick dissented in part.
 
Transportation Impact Fees.  The Nollan/Dolan test does not apply to traffic impact fees, because such fees are legislatively prescribed generally applicable fees outside the scope of Koontz v. St. Johns River Water Management District, 570 U.S. 595, 595 (2013).  A developer who wishes to challenge the amount of the traffic impact fees bears the burden of establishing that  the “proportionate share” formula in a local ordinance adopted under RCW 82.02.050 is clearly erroneous application of law to facts.  Douglas Properties II, LLC, v. City of Olympia, COA No. 53558-1-II (Feb. 2, 2021). 

Legal Update for Washington State Law Enforcement

The January 2021 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 

Sixth Circuit

Absolute Immunity.  Absolute immunity does not shield a prosecutor from a lawsuit brought by a plaintiff who served 41-years in prison before his murder conviction was reversed and the charges were dismissed without prejudice.  The plaintiff’s plausible allegations were that the prosecuting attorney, while inside or right outside an interrogation room and prior to a judicial determination of probable cause, allegedly threatened to charge a witness with two murders unless he falsely implicated the plaintiff.    Watkins v. Healy, No. 20-1074 (6th Cir. Jan. 28, 2021). [Editor’s Note: This case contains a good survey of the law regarding when a prosecutor is entitled to absolute immunity versus qualified immunity.]


North Carolina Supreme Court

Implicit Bias.  It is reversible error for a trial court to prohibit a defense attorney from questioning prospective jurors regarding implicit bias.  State v. Crump, No. 151PA18 (N.C. Dec. 18, 2020). [Editor’s Note: This problem should not arise in Washington.  Please ensure that your courts are using the October 2018 version of WPIC 1.01 which introduces the concept of implicit bias to jurors before questioning begins.]
WEEKLY ROUNDUP FOR JANUARY 29, 2021

Washington Supreme Court

Immigration Consequences and Guilty Pleas.  RCW 10.40.200 does not excuse a defendant from the need of establishing prejudice from his trial counsel’s failure to provide a defendant with information regarding the immigration consequences of a guilty plea that is  mandated by Padilla v. Kentucky, 559 U.S. 356 (2010).  In re Pers. Restraint of Garcia-Mendoza, No. 98026-8 (Jan. 28, 2021).  State represented by Snohomish County DPA Seth Fine.
 
SSOSA Eligibility. A defendant was not eligible for SSOSA under RCW 9.94A.670(2)(e), which requires offenders to have “an established relationship with, or connection to, the victim such that the sole connection with the victim was not the commission of the crime,” where he and the victim shared a family member in common, but did not have a direct relationship.   State v. Pratt, No. 98066-7 (Jan. 28, 2021).  Justice Gordon McCloud was the sole dissenter.  State represented by Clark County DPAs Rachel Rogers and Colin Hayes.
 
Execution of Search Warrants. Police executing a search warrant owe the same duty of reasonable care that they owe when discharging other duties.  Officers breached that duty when they executed a search warrant and found a well-kept home instead of the expected unkempt apartment, handcuffed the older nurse who lived there, and took her, without shoes and wearing only a nightgown, outside while they searched.  Neither sovereign immunity nor the public duty doctrine bar the nurse from recovering for negligent warrant execution in this case.  Mancini v. City of Tacoma, No. 97583-3 (Jan. 28, 2021).  Justice Madsen was the lone dissenter.  WAPA amicus brief prepared by Benton County DPA Ryan  Lukson and WAPA Staff Attorney Pam Loginsky.  WSAC, WSPC, and WSAMA’s amicus brief prepared by Kittitas County DPA Doug Mitchell, Pierce County DPA Daniel Hamilton, and City of Vancouver ACA Daniel Lloyd.
 

Immunity for Communications to Government Agencies.  RCW 4.24.510 provides immunity from retaliatory lawsuits for “persons” who communicate information to the government regarding a matter of reasonable concern to a federal, state, or local agency.  Lawyers hired as  government contractors to perform an independent investigation are a “person” entitled to the immunity conferred by the statute.   Leishman v. Ogden Murphy Wallace, PLLC, No. 97734-8 (Jan. 28, 2021).  Plurality opinion: Lead opinion signed by Justices Montoya-Lewis, Johnson, Owens and Yu.  Justice Gordon McCloud concurred.  Dissenters were Justices Madsen, González, Stephens and Whitner.

Court Rules Published for Comment.  The Washington Supreme Court has published a number of proposed rules for comment.  All comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or Internet e-mail. Comments should be received no later than the end of the comment period. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, WA 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail may not exceed 1500 words.  You may view all of the proposed rules here.  Links to the proposed rules of special interest to prosecutors appears here.

 

Division Two

Legal Financial Obligations.  The superior court has the authority under RCW 36.18.190 to order the court clerk to remove a defendant’s legal financial account from a private debt collection agency.  State v. Gaines, COA No. 53955-1-II (Jan. 26, 2021).  Judge Worswick authored a concurring opinion that expresses “concern over the practices and effects of court cost collection practices.” 
 

Ninth Circuit

Custodial Interrogation.  The defendant was in “custody” for Miranda purposes when three armed police officers met him in two marked vehicles with lights flashing, at a shopping mall, and separated the defendant from his 7-year-old son, before questionng.  Under the totality of the circumstances a reasonable person in the defendant’s position would not have felt free to end the questioning and leave the mall.  The Miranda violation alone, however, does not warrant the suppression of the physical fruits of the defendant’s inculpatory statements.  United States v. Mora-Alcaraz, No. 19-10323 (9th Cir. Jan. 21, 2021).

Ethics

Electronic Communication.  The Henry Latimer Center for Professionalism updates its Best Practices for Professional Electronic Communication  materials.  Every legal professional who texts, sends e-mails, uses a telephone, or has a social media presence should read this 25-page booklet.  I really appreciated the “Responding to an Angry Email” section. 
 
Prosecutor’s Offices and Unauthorized Practice of Law.  A prosecuting attorney or supervisory prosecuting attorney violates RPC 5.3(b), 5.5(a), 8.4(a) and (d) by allowing someone who is not validly licensed as a legal intern or is admitted to the state bar to represent the government in criminal prosecutions.   State ex rel. Oklahoma Bar Association v. Jack, 2021 Ok. 1 (Ok. Jan. 19, 2021).  (Hyperlinks to the ethics rules are to Washington’s RPC, which are comparable to Oklahoma’s rules)
 
RPC 3.8 Disclosure Responsibilities.  Six month suspension recommended for two prosecutors who failed to disclose potential impeachment information to defense counsel and whose ex parte motion to the court for a protective order was defective in that it did not include all of the impeachment information. Conduct found to violate RPC 3.8(d)   and RPC 8.4 (b) and (d).    In the Matters of Dobbie, No. 19-BD-018 (District of Columbia Court of Appeals Board on Professional Responsibility Jan. 13, 2021). [Editor’s Note: I believe the prosecutor’s conduct also violated RPC 3.3(f) which provides that “In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.”]   (Hyperlinks to the ethics rules are to Washington’s RPC, which are comparable to D.C.’s rules)
 

New Resources

The National Traffic Law Center (NTLC) just issued a 93-page monograph addressing Constitutional Law Issues in Impaired Driving Cases.  This monograph addresses issues most commonly faced in impaired driving cases involving the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Not intended to replace the thorough research necessary for the proper handling of these important cases, it serves as a quick reference guide for prosecutors and law enforcement.  Washington prosecutors and law enforcement must always check to see whether article I, section 7 of the Washington Constitution provides greater protection than the Fourth Amendment.  The January 2021 edition of NTLC’s “Between the Lines” publication contains a summary of research on impaired driving that is well worth reading.  
 
WEEKLY ROUNDUP FOR JANURY 15, 2021

Washington Supreme Court

Sexual Assault Nurses and Confrontation Clause.   Although SANE examinations have a forensic component, the primary purpose of statements made by a patient being treated for a sexual assault made statements to a sexual assault nurse examiner is to guide the provision of medical care.  Such statements are non-testimonial and may be admitted at trial under the hearsay exception for statements made for purposes of medical diagnosis or treatment in cases, ER 803(a)(4), in which the patient does not testify without violating the defendant’s Sixth Amendment right to confrontation. A patient’s statements that describe an assailant who is  not a “closely-related perpetrator” who might cause future injury,  however, are primarily for the purpose of investigation and the admission of such statements is improper in cases in which the patient is unavailable for cross-examination.  State v. Burke, No. 96783-1 (Jan. 14, 2021).  Justices Gordon McCloud, and Madsen, and J.P.T. Mann concurred in the result finding that the admission of the statements was harmless error.  State represented by Pierce County DPA Theodore Cropley.  WAPA amicus brief authored by Benton County Prosecuting Attorney Andy Miller and King County DPA Jim Whisman.
 
Recall of Sheriff. Charge that the sheriff incited members of the public to violate the governor’s Stay Home-Stay Healthy proclamation is legally and factually sufficient where the sheriff, using a professional Facebook account and the official page of the Snohomish County Sheriff’s Office made posts in which he unambiguously declared that the Stay Home-Stay Healthy proclamation was unconstitutional, that the governor’s judgment should be questioned, and he advocated that business owners should open up.  These statements, coupled with his repeated and public statements refusing to enforce Governor Inslee’s proclamation effectively nullified the law.
 
Charge that the sheriff exercised his discretion in a manifestly unreasonable way by rehiring three deputies previously terminated for misconduct is legally and factually sufficient.  The issue for recall is not whether the sheriff was permitted to reinstate the deputies; the issue is whether voters could find that the sheriff abused his discretion by doing so.
 
Charge that the sheriff failed to investigate an incident regarding a deputy’s use of force is factually insufficient.  The petitioners did not provide the complaint that the sheriff allegedly failed to investigate.  Without this complaint, there are no “identifiable facts” to support the allegations and to assess the sheriff’s actions.  In re Recall of Fortney, No. 98683-5 (Jan. 14, 2021). Justices Gordon McCloud, Owens and Montoya-Lewis dissented in part.
 
Recall of Sheriff.  Numerous counts of illegal conduct are both legally and factually sufficient to support recall:
 
In contrast with other elected officials, the elected sheriff possesses law enforcement duties that are inherently affected when he or she commits a crime. As the elected sheriff, Sheriff Hatcher took an oath to “support the laws of the State of Washington.” Id. at 49. Under RCW 36.28.010(1), the sheriff “[s]hall arrest and  commit to prison all persons who break the peace, or attempt to break it, and all persons guilty of public offenses.” Further, under RCW 36.28.011, “[i]n addition to the duties contained in RCW 36.28.010, it shall be the duty of all sheriffs to make complaint of all violations of the criminal law, which shall come to their knowledge, within their respective jurisdictions.” Therefore, the sheriff who violates the law puts himself in a position where he must choose between serving his constituents through his law enforcement duties or acting within his own self-interest. Accordingly, a sheriff’s actions in violation of [various criminal statutes], 36.28.010, and 36.28.011, clearly amount to both misfeasance and malfeasance under RCW 29A.56.110. 
 
Counts that sheriff  harassed and retaliated against employees, violated the county anti-discrimination policy, and created an intimidating and hostile work environment are also legally and factually sufficient to support a recall.
In re Recall of Hatcher, No. 98968-1 (Jan. 14, 2021).
 

Ninth Circuit

Search Warrants, Firearms, and Overbreadth.  A search warrant that authorized police in a felon in possession case to search for “any firearm” rather than just a particular revolver, was not overbroad as the search warrant application, which alerted the judge that the defendant took a particular revolver to hide it from law enforcement for a domestic-abuse suspect, raised the inference that the defendant possessed other firearms.  United States v. King, No. 20-10007 (9th Cir. Jan. 14, 2021).

Legal Update for Washington State Law Enforcement

The December 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR JANUARY 8, 2021

Washington Supreme Court

Petitions for Review.  The Washington Supreme Court granted review in the following cases this week:
Electronic Messages and Article I, Section 7.  State v. Bowman, No. 99062-0.  King County–State’s Petition.  Questions presented: Whether article I, section 7 of the Washington constitution creates a privacy interest in the intangible nature of another person’s identity? Whether a law enforcement officer’s sending uninvited and unwanted electronic messages to a person’s cell phone constitutes a “search.”  COA opinion reported at 14 Wn. App. 2d 562 (2020).  Petition for Review       Cross-Petition for Review
 
Capacity to Commit Crimes.  State v. A.X.K., No. 98999-1.  Clark County.  Where the State neither proved that the acts in question occurred after the offender’s 12th birthday nor rebutted the presumption of incapacity, does a remand for a capacity hearing violate procedural due process?  Questions presented: COA opinion reported at 12 Wn. App. 2d 287 (2020).  Petition for Review
 
New Court Rules.  The Washington Supreme Court has approved of a large number of new rules and amendments to current rules that will become effective this year.  The rules will require new motions (CrR/CrRLJ 3.4), modifications to current forms (word count limits, rather then page limits in the appellate courts), and policy decisions.  The new rules that impact government attorneys are described here.
 

Division One

Open Public Meetings Act (OPMA) and Land Use Petition Act (LUPA).  The challenger’s motion to revoke a conditional use permit (CUP) for a rooftop helistop was proper,y denied. The absence of helicopter landings did not establish an intent to abandon as the helistop was actively maintained and improved.  The test for abandonment for a CPU is the same as abandonment for a nonconforming use. The Bellevue City Council did not violate the OPMA, chapter 42.30 RCW, when it discussed the challenger’s appeal from the City’s land use decision in executive session because the Council was acing as a quasi-judicial body. See RCW 42.30.140(2).   Tateuchi v. City of Bellevue, COA No. 80712-9-I (Dec. 28, 2020).
 
Personal Presence of Defendants.  A bench warrant should not have issued for a defendant who failed to personally appear for a trial readiness hearing as the criminal rules do not mandate a defendant’s personal presence where that presence is not necessary for the case to proceed. State v. Gelinas, COA No. 81832-5-I (Nov. 16, 2020, publication ordered Dec. 30, 2020).
 

Division Two

Official Misconduct.  Under RCW 9A.80.010(1), a police officer may be convicted of official misconduct if the State proves that “with intent to obtain a benefit or to deprive another person of a lawful right or privilege: (a) [the officer] intentionally commits an unauthorized act under color of law; or (b) . . . intentionally refrains from performing a duty imposed upon [them] by law.”  Neither the phrase “unauthorized act” nor “to deprive another of a lawful right or privilege” renders the official misconduct statute unconstitutionally vague.  The statute is not overbroad as the First Amendment does not protect statements made by a public employee pursuant to their official duties.
State v. Birge, COA No. 53584-0-II (Jan. 5, 2021).
 
Accomplice Liability.  Police officers, who allegedly commanded a grandmother to strike her mentally ill nine year old grandson with a belt between 20 and 25 times, are properly charged as accomplices to Third Degree Assault of a Child, RCW 9A.36.140(1) and RCW 9A.36.031(1)(d) (“With criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm”).  The State is not required to prove that the officers had the same mental state as the grandmother.  The State is only required to prove that the officers have knowledge that their actions will promote or facilitate the particular crime at issue.  Reasonableness of the physical discipline, RCW 9A.16.100, is a question of fact for the jury–not a decision the judge could make in the context of a Knapstad motion.   State v. Birge, COA No. 53584-0-II (Jan. 5, 2021).
 

Division Three

Self-Defense Reimbursement Statute. The “lodestar” method for calculating legal fees applies to the self-defense reimbursement statute.  State v. Carey, COA No. 37385-1-III (Dec. 31, 2020).
 
Entrapment.  A criminal defendant is entitled to an entrapment instruction even if he does not present evidence sufficient to permit a reasonable juror to find by a preponderance of the evidence that law enforcement used of more than a “normal amount of persuasion” in their communications with the defendant.  A defendant’s right to jury and due process requires that the jury be instructed on entrapment whenever a defendant requests if there is prima facie evidence that law enforcement induced the defendant to to commit the crime and that the defendant was not predisposed to commit the crime.  A defendant can assert entrapment while at the same time denying criminal liability. Once entrapment is asserted, evidence that the defendant has not been suspected of, arrested for, or convicted of a crime is admissible to show lack of predisposition.   State v. Arbogast, COA No. 36250-7-III (Dec. 24, 2020).  Judge Korsmo dissented.
 

Ninth Circuit

Vehicle Searches and Supervised Release Conditions.  Before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or control the vehicle.  A Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, such as whether the defendant exercised control over the vehicle. United States v. Dixon, No. 19-10112 (9th Cir. Dec. 31, 2020).
 

Superior Court of New Jersey

COVID 19 and Mistrials.  Trial judge’s sua sponte order declaring a mistrial in a murder trial which had been interrupted for an extended period of time by the COVID-19 pandemic does not require dismissal of the charges.  Double jeopardy does not bar a subsequent trial as manifest necessity justified the mistrial, there were no viable alternatives to the mistrial, the State was not responsible for COVID-19, and the defendants and defense counsel were at high-risk for complications from COVID-19.   State v. Smith, No. A-0838-20T4 (Dec. 31, 2020).

Supreme Court of the State of New York

Prosecutor Discipline. Former deputy prosecuting attorney violated N.Y. RPC 3.8(b) (Washington’s RPC 3.8(d)), and N.Y. RPC 8.4(d) and (h) (Washington’s RPC 8.4(d) and (n)) by failing to disclose numerous items of potential exculpatory evidence in a homicide case.  Withheld information included information regarding an alternative suspect.  Former prosecutor’s conduct also violated Brady.  The former prosecutor’s failure to conduct any Brady review of analysis of the materials in his possession, his “deliberate pattern of avoidance, or will ful blindness, in his handling of the documents in the police file,” and his delegation of his duties under Brady to the detective merited a two year suspension from the practice of law.  In re Kurtzrock, No. D65317 (Dec. 30, 2020).
 
WEEKLY ROUNDUP FOR December 24, 2020

Washington Supreme Court

Sex Offender Registration.  RCW 9A.44.128(10)(h), which imposes a duty to register as a sex offender in Washington when an individual with a non-Washington conviction would be required to register in the state of conviction is constitutional. “Sex offense” is a definitional term  of RCW 9A.44.132, not an element.   State v. Batson, No. 97617-1 (Dec. 24, 2020).  Dissenting Justices were Owens, Gordon McCloud, and PT Wiggins. [Editor’s Note:  The Court remanded the defendant’s challenges to his conviction on ex post facto, double jeopardy, and equal protection grounds were remanded to the court of appeals.] State was represented by King County DPA Gavriel Jacobs.
 

Division One

Sex Offender Sentencing Alternative (SSOSA).  The defendant’s biological daughter was the only victim of his convictions for three counts of child molestation.  His biological daughter’s mother, who is the defendant’s wife, is not a “victim” under the SSOSA statute as the daughter was an adult at the time of sentencing.  The trial court, therefore, properly gave the daughter’s opinion regarding a SSOSA “great weight,” and no weight to the wife’s opinion.   State v. Pervez, COA No. 80246-0-I (Nov. 2, 2020, publication ordered Dec. 11, 2020)
 
Exoneration of Forfeited Bail. The trial court did not abuse its broad discretion in denying a bail bond company’s motion to exonerate a forfeited bail bond where the defendant was arrested 96 days after the State moved for forfeiture of the bail bond by police for a new crime.  The bail bond company offered no excuse for the defendant’s failure to appear for the court hearing and the company did not remain in contact with the defendant after he failed to appear.   State v. Adams, COA No. 80446-4-I (Sep. 21, 2020, publication ordered Dec. 9, 2020). 


Arkansas Supreme Court

Courthouse Campaigning.  Murderer’s conviction reversed due to prosecutor’s courthouse campaigning for a position in the Arkansas Court of Appeals.  Improper conduct included prosecutor’s family members asking perspective jurors to sign election petitions for the prosecutor and other judicial candidates as they walked through the courthouse.  Campaign material featuring the prosecutor’s photograph and her asserted credentials were placed on the bailiff’s security statution that the venire pool encountered each time they entered the courtroom.  Prosecutor’s conduct “created an appearance of impropriety that fatally undermined the integrity of the [the defendant’s] trial,” and was “an abuse and exploitation of the judicial system and the fundamental civic responsibility of jury service.”   Stanton v. State, 2020 Ark. 418 (Dec. 17, 2020).
WEEKLY ROUNDUP FOR DECEMBER 18, 2020

Division One

Hearsay Exceptions.  A police officer who was a defendant in a civil lawsuit made statements to various individuals, prior to committing suicide, that his trial testimony was dishonest.  These statements are admissible as non-hearsay under ER 801(d)92)(i) (statements of a party opponent) and under ER 804(b)(3) (statement against interest).  Because of the disclosures prosecutors must make pursuant to Brady, a law enforcement officer has a pecuniary interest in not having his or her credibility called into question in future cases sufficient to render an admission of prior lying be against his or her interest.    Hor v. City of Seattle, COA No. 80835-4-I (Dec. 14, 2020). [Editor’s Note: This opinion erroneously holds that being identified by prosecutors as an officer for whom potential impeachment evidence exists will result in adverse personnel actions.  RCW 10.93.150 does not allow a disciplinary action or other adverse personnel action to be based upon Brady disclosures.  Such actions can only be taken based upon the underlying acts or omissions.]
 
Sexual Exploitation/Patronizing a Prostitute. The First Amendment does not protect prostitution and statutes that criminalize the solicitation of another to engage in sexual conduct in return for a fee require neither an over act nor a scienter element to survive an overbreadth challenge.  Seattle’s ordinance is not unconstitutionally vague as the word “agreement” and the phrase “pursuant to an understanding” are understandable to an average person and can both be established by objective facts.  City of Seattle v. Rodriguez, COA No. 79353-5-I (Dec. 14, 2020). 
 
Attorney Phone Calls.  A jail inmate’s phone call with counsel that was recorded and was accessed by a deputy prosecuting attorney (DPA) did not establish a basis for dismissal of charges.  The DPA was the only person who accessed the 15-minute long call, and he stopped listening to the call after 8 seconds when he recognized defense counsel’s voice.   State v. Koeller, COA No. 799142-1-I (Nov. 2, 2020, publication ordered Dec. 10, 2020). 

Destruction of Evidence.  The destruction of a 2007 recorded interview in which the victim denied that the defendant sexually abused her did not provide grounds for dismissal of charges, where the interview was destroyed pursuant to routine procedures in 2012, five years before the victim disclosed being abused by the defendant.  State v. Koeller, COA No. 799142-1-I (Nov. 2, 2020, publication ordered Dec. 10, 2020).

Division Two

Crime Laboratory Analysis Fee.  The crime laboratory analysis fee is a mandatory fee that a sentencing court “shall levy.”  RCW 43.43.690(1).  The court may, however, suspend payment of all or part of the fee if it finds, based upon a “verified petition,” that the defendant does not have the ability to pay the fee. Id.  State v. Johns, COA No. 53428-2-II (Dec. 15, 2020). 
 

Ohio Supreme Court

COVID 19 and Judicial Disqualification.  A judge who failed to establish written protocols to protect the safety of individuals in the courtroom disqualified from two criminal cases.   In re Disqualification of Fleegle, 2020-Ohio-5636 (Dec. 10, 2020). 
 

Pennsylvania Supreme Court

Prosecutor Disqualification.  Widow of slain police officer’s motion to disqualify the district attorney’s office (DAO) in collateral attacks and other issues arising from Mumia Abu-Jamal’s 40-year-old murder conviction.  While the court found some of the claims “troubling,” it decided to monitor the matter rather than to grant the motion outright.  Although a special master report concluded that the decisions not to contest certain motions brought by Abu-Jamal rested on reasonable legal and strategic foundations and that no evidence was presented that the DA or his assistants did not intend to defend the conviction, concurring justices found that the widow identified a number of circumstances that strongly suggests a conflict of interest does in fact exist.  Particularly concerning was the DA’s media statements in which he suggested several former prosecutors who previously worked on Abu-Jamal’s case are “war criminals,” a racially charged tweet aimed at the widow and her supporters, and a failure to establish a formal policy to screen Abu-Jamal’s prior appellate attorney who now supervised the DAO’s appeals and collateral attack unit from the case.   In re Conflict of Interest of the Office of the Philadelphia District Attorney, No. 125 EM 2019 (Dec. 16, 2020).  Per curiam order.  Concurring Statement of Justice Dougherty.  Concurring Statement of Justice Wecht. Dissenting Statement of Justice Mundy.   
WEEKLY ROUNDUP FOR DECEMBER 11, 2020

Washington Supreme Court

Recall Petitions. Mayor Durkin is not subject to recall for failing to take steps to intervene and take control of the situation after the Seattle Police Department (SPD) allegedly violated their own policies and individuals’ constitutional rights by using chemical agents as a means of crowd control during the recent protests.  Mayor Durkin’s decision to not take charge of the police department was not manifestly unreasonable as she has no experience in running a police department or being a police officer.  Mayor Durkin, who had already issued one order that SPD comply with the federal TRO, could reasonably believe that another order to comply would not have resolved the issue.  Mediation was unlikely to be effective as the people involved in the property damage and physical violence were unaffiliated with the peaceful march.    In re Recall of Durkin, No. 98897-8 (Dec. 10, 2020).
 

Division One

Public Records and Antiharassment Protection Orders.  A protection order cannot be based solely upon a respondent’s constitutionally protected conduct of obtaining and publishing public records related to the petitioner. The provision in the protection order that bars the respondent from publishing public records about the petitioner in the future is an unconstitutional content-based restriction that is not narrowly tailored to promote a compelling governmental interest. The provision prohibiting future publication of public records is also an unconstitutional prior restraint on the respondent’s protected speech.  Catlett v. Teel, COA No. 80059-1-I (Dec. 7, 2020).
 

Pseudonyms. The trial court did not err by allowing the plaintiffs in this lawsuit to use pseudonyms to identify themselves.  The trial court considered the Ishikawa factors and its unchallenged findings support its decision to allow the plaintiffs to conceal their true identities.  A court is not required to repeat its Ishikawa analysis regarding the use of pseudonyms each time it enters an order granting relief independent of the anonymity issue.  Doe v. King County, COA No. 80321-2-I (Dec. 7, 2020).

Division Two

Comparability of Oregon Robbery Convictions.  Oregon’s first degree attempted robbery statutes in effect it 2005, former Or. Rev. Stat. § 161.405(1)(1971) and § 164.415(1)(1971), is not legally comparable to Washington’s attempted robbery statute.  The defendant’s plea statement in Oregon was insufficient to establish that his first degree attempted robbery conviction was factually comparable to a Washington felony.  Oregon’s third degree robbery statute, Or. Rev. Stat. § 164.395, is not legally comparable to former RCW 9A.56.190 because Washington’s statute requires an actual taking of property and Oregon’s statute encompasses both actual theft and attempted theft.  The defendant’s plea statement, however, establishes that the crimes are factually comparable in this case.    State v. Howard, COA No. 51822-8-II (Dec. 8, 2020). [Editor’s Note: This opinion conflicts with Division One’s holding in State v. McIntyre, 112 Wn. App. 478 (2002), which held that the Oregon crime of third degree robbery is legally comparable to the Washington crime of second degree theft.  Be cautious about relying on McIntyre as that case did not consider the attempted theft question.]
 
Bail Jumping.  The 2020 changes to the bail jumping statute do not apply to violations committed prior to the amendments.   State v. Brake, COA No. 52613-1-II (Dec. 8, 2020). 
 
Double Jeopardy.  Convictions for both child rape and child molestation based only on oral/genital contact violated double jeopardy where the jury was not instructed that its verdict must be based on separate and distinct incidents for each charge and the State did not make it “manifestly apparent” to the jury that it was not attempting to obtain multiple convictions for the same conduct.   State v. Sanford, COA No. 53132-1-II (Dec. 8, 2020).  Judge Lee dissented.

Legal Update for Washington State Law Enforcement

The November 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 

Sixth Circuit

Prosecutorial Immunity.  Absolute immunity does not protect a prosecuting attorney who sends e-mails to a police department in which she seeks to have a police officer terminated. The prosecutor’s reference to Giglio, which was made only after she took many personnel-driven actions, established that the e-mail was not intimately associated with the judicial phase of the criminal process.  Stockdale v. Helper, No. 20-5269 (6th Cir. Oct. 30, 2020). 
 
WEEKLY ROUNDUP FOR DECEMBER 4, 2020

Washington Supreme Court

The Supreme Court granted petitions for review in the following cases on December 1, 2020:
Ineffective Assistance of Counsel.  State v. Vazquez, No. 98928-1.  Asotin County.  “Granted only as to the issue of ineffective assistance of counsel on evidentiary issues.” Questions presented: Whether the Court of Appeals applied the wrong test to decide whether trial counsel’s failure to object to the admission of highly prejudicial evidence violated the defendant’s rights under the Sixth Amendment and article I, section 22.  COA opinion is unpublished.   Petition for review available here.
 
School Bus Stop.  State v. Anderson, No. 98973-7.  Kittitas County.  “Granted only on the school bus stop aggravator issue.”  Question presented: “The special verdict form asked the jury to decide if Mr. Anderson delivered a controlled substance within 1,000 feet of a “school bus route stop.” “School bus” was defined in the jury instructions as a vehicle with a seating capacity of more than 10 persons and a vehicle owned and operated by a school district as opposed to a municipality. No evidence was presented on seating capacity, ownership, or operation of the school buses. Does the definition of “school bus” in the jury instructions delineate the state’s burden of proof as to whether Mr. Anderson’s actions occurred within 1,000 feet of a “school bus route stop” under the law of the case and should review be granted given that the three separate court of appeals opinions could not decide this question?”  COA opinion is unpublished.   Petition for review pleadings  available here.
 
Sexually Violent Predators.  In the Matter of the Det. of McHatton, No. 98904-4.  “Granted only on the appealability issue.”  Questions presented: “Whether a court order revoking a less restrictive alternative placement under chapter 71.09 RCW is appealable as a matter of right?”  COA opinion reported at 13 Wn. App. 2d 830 (2020).  Petition for review pleadings  available here.
 
Impoundment of Vehicles that People Live In.  City of Seattle v. Long, No. 98824-2.  Questions presented: Whether the fines associated with towing a vehicle and storage costs violated article I, section 14’s excessive fine prohibition.  Whether petitioner’s “art. 1, §7 claim constitute manifest constitutional error because the unlawful withholding of his home for 21 days constituted practical and identifiable consequences resulting from an unreasonably long seizure.  Whether the Court of Appeals misinterpreted the Homestead Act with respect to vehicles that people live in.  COA opinion reported at 13 Wn. App. 2d 709 (2020).   Petition for review pleadings  available here.
 
Business Premises Liability.  Johnson v. State of Wash. Liquor & Cannabis Bd., No. 98726-2.  “Granted only on the issue of notice in relation to premises liability.”  Question presented: “Should this Court reinstate the jury’s verdict and apply the reasonably foreseeable standard for premises liability to business invitees, as urged by the 4-Justice plurality of the Court in Iwai?”   COA opinion is unpublished.   Petition for review pleadings  available here.


Division One

Failure to Inspect.  A county has a duty under RCW 64.44.020, to inspect a house for hazardous chemical contamination when the sheriff’s office becomes aware of possible methamphetamine use and manufacturing on the property.  Actual knowledge of contamination is not required in order to trigger the duty to notify the health department–just an awareness that methamphetamine contamination is likely to be present.  A negligence action brought for a failure to perform the duties contained in RCW 64.44.020 falls within the  “legislative intent exception” to the public duty doctrine. Perillo v. Island County, COA No. 80055-8-I (Nov. 30, 3030).

Division Two

COVID-19 and Article I, Section 14.  Although article I, section 14 of the Washington Constitution is more protective than the federal constitution, an older disabled and minority prisoner is not entitled to release due to the spread of COVID-19 in prisons.  The inmate’s incarceration does not violate the Washington Constitution because Washington’s approach to releasing inmates during the COVID-19 pandemic is consistent with that of other states, the Department of Corrections (DOC) is continuously updating and modifying its multifaceted response to COVID-19, and the ongoing confinement of the inmate ensures community safety.  Because DOC has not been deliberately indifferent to the risk of COVID-19, the inmate’s ongoing incarceration is not cruel and unusual under the Eighth Amendment.  In re Personal Restraint of Williams, COA No. 54629-9-II (Dec. 1, 2020).  Judge Cruser dissented in part.
 

Division Three

DNA Collection and Juvenile Offenders.  A juvenile offender who is granted a deferred disposition is required to submit to DNA collection upon conviction. “Conviction” for this purpose is defined as a finding of guilt.   State v. I.A.S., COA No. 37166-2-III (Dec. 1, 2020). 
 
DNA Collection and Juvenile Offenders.  A juvenile offender who receives a deferred felony disposition must provide a DNA sample upon a trial court’s finding of “guilty.”   State v. M.Y.G., COA No. 37240-5-III (Dec. 1, 2020). 
 
WEEKLY ROUNDUP FOR NOVEMBER 16-25, 2020

Washington Supreme Court

Fact of the Complaint. Under the fact of the complaint exception, the State may offer evidence that a victim of sexual violence told someone about it. Testimony under the doctrine is not admissible for the truth of the matter asserted, only to demonstrate that the victim reported to someone. Admission of this evidence falls within an important pre-codified hearsay rule exception that survives the adoption of Washington’s rules of evidence.  A victim’s complaint, made after the charging period has ended, but while the sexual abuse is ongoing is admissible under this doctrine.  State v. Martinez, No. 97496-9 (Nov. 19, 2020).  Justice Gordon McCloud was the lone dissenter.  The State was represented in this case by King County DPA Carla Carlstrom.
 

Division One

Closing Argument.   A prosecutor makes an improper closing argument by emphatically inviting jurors to rely on their emotions and moral sense as well as their intellect when reaching a verdict.  State v. Craven, COA No. 78849-3-I (Nov. 16, 2020).   
 
Mitigating Factors of Youth.  A “juvenile” who disagrees with how the court weighted the evidence regarding the mitigating factors of youth is not entitled to a new sentencing hearing if the trial court carefully and meaningfully considered the mitigating evidence presented, including the “juvenile’s” potential for rehabilitation.  An appellate court may not reweigh the evidence on review.   State v. Backstrom, COA No. 77134-5-I (Nov. 2, 2020, publication ordered Nov. 20, 2020).

Division Two

SSOSA. A defendant, whose pre-rape contact with the victim consisted of several e-mail messages on Facebook over a four day period, had a sufficient “established relationship with, or connection to, the victim,” RCW 9.94A.670(2)(e), to render him eligible for a Special Sex Offender Sentencing Alternative.  The trial court did not err in concluding that a defendant, who minimized his responsibility for the crime and did not acknowledge his actual behavior, was not amenable to treatment.  State v. Spaulding, COA No. 53253-1-II (Nov. 17, 2020). 
 
DOC Supervision Fees.  Supervision fees payable to DOC pursuant to RCW 9.94A.703(2)(d) are discretionary legal financial obligations that may be imposed on an indigent defendant as they are not a “cost” that falls within RCW 10.01.160(3).  State v. Spaulding, COA No. 53253-1-II (Nov. 17, 2020).
 

Ninth Circuit

Traffic Stops.  Police officers who have reasonable suspicion sufficient to justify a traffic stop – but who lack a reasonable belief that the driver poses a danger – may not open the door to a vehicle and lean inside.  Opening the car door and leaning into the car constitutes a search under the Fourth Amendment.  United States v. Ngumezi, No. 19-10243 (9th Cir. Nov. 20, 2020). 
WEEKLY ROUNDUP FOR NOVEMBER 13, 2020

Washington Supreme Court

Contempt Sanctions.  A court has discretion to impose remedial sanctions under RCW 7.21.030(3), which allows a court to require the contemptor to pay “for any losses suffered by the party as a result of the contempt and any costs incurred in connection with the contempt proceeding, including attorney’s fees,” in the absence of ongoing-continuing contempt. RCW 7.21.030(3), however, does not authorize recovery of the party’s costs and fees in bringing the contempt motion.  Gronquist v. Department of Corrections, No. 97277-0 (Nov. 12, 2020).  Justice González authored a concurring opinion “to emphasize that RCW 8.21.030 does not create a stand-alone cause of action for damages.” Justices Yu, Montaya-Lewis, and Pro Tem Wiggins also signed the concurring opinion.  Prosecutor Satterberg was represented in this matter by King County DPA David Hackett.

Division One

Vacation of Convictions.  RCW 9.94A.640 grants discretion to the trial court to grant or deny a motion to vacate a conviction, even if an offender satisfies the statutory criteria.  The trial court did not abuse its discretion in denying the defendant’s motion to vacate his conviction based upon the facts of the case as set out in the probable cause certification that the defendant stipulated to when pleading guilty.   State v. Kopp, COA No. 80958-0-I (Nov. 19, 2020).

Division Two

GR 37.  A persuasive race-neutral reason for justifying the use of a peremptory challenge will not render the challenge proper under GR 37, if an objective observer could view race or ethnicity as a factor.  The State’s peremptory challenge against the only member of a racially cognizable group who expressed discomfort, rather than an unwillingness to convict based upon a hypothetical law, and who indicated that he had personally known innocent individuals who have been found guilty, was improperly allowed by the trial judge. A juror’s expression of skepticism of the criminal justice system based on his own experience and the experiences of people he knows have historically been assocaited with discrimination and may generally not be relied upon as a reason to exclude someone from a jury.  State v. Listoe, COA No. 52893-2 (Nov. 10, 2020). Judge Melnick authored a concurring opinion that sets out his view of how GR 37 applies under these circumstances.  [Editor’s Note: If the juror had indicated an inability to follow a law that he considers “silly” or an inability to consider a matter impartially if he disagrees with the law, the prosecution could have challenged the juror for cause under RCW 4.44.170(2).] 
 
Constructive Possession.  Sufficient evidence existed to establish the defendant had constructive possession over the controlled substances discovered on the back floorboards of the car he was driving where the drugs were found in a grocery sack of perishable items, the defendant delayed in pulling over once signaled to do so by the police officer, and the defendant’s movements were sufficient to support an inference that he was hiding the controlled substances after seeing the police officer.  The fact that the controlled substances may have belonged to the absent owner of the car or to the defendant’s passenger is not fatal to a finding of constructive possession, as exclusive control is not required.  State v. Listoe, COA No. 52893-2 (Nov. 10, 2020)
 
Excessive Fines Clause.  A treble damages award of $18 million dollars for failing to comply with the Fair Campaign Practices Act (“FCPA”) does not violate the Eighth Amendment’s prohibition against excessive fines.  The gravity of the violations, which deprived voters of the knowledge that multiple companies were spending millions of dollars to defeat I-522 and the identity of those companies, infringed on the FCPA’s stated purposes. In addition, the penalty imposed fell far short of the $43 million maximum penalty authorized by the FCPA. State v. Grocery Manufacturers Association, No. 49768-9-II (Nov. 10, 2020).

Division Three

Unfair Labor Practices.  The recovery of overpaid wages from a union member’s future paychecks or accrued leave is a mandatory subject of bargaining.   A public employer must provide employees covered by a collective bargaining agreement the notice required by RCW 49.48.210(10) and then bargain with the union about how overpaid wages are to be repaid. The Public Employee Relations Commission (PERC) properly ordered the County to return the overpayments already collected along with 12 percent per annum interest, and then recover the overpaid wages using the correct procedure.  Teamsters Local 839 v. Benton County, COA No. 36974-9-III (Nov. 12, 2020).
WEEKLY ROUNDUP FOR NOVEMBER 6, 2020

Washington Supreme Court

Article I, Section 12 of the Washington Constitution.  Comprehensive discussion of when article I, section 12 is more protective than the federal equal protection clause.  An independent analysis  independent analysis applies only where a law implicates a “privilege or immunity” as defined in our early cases distinguishing the fundamental rights of state citizenship. Generally, rights left to the discretion of the legislature have not been considered fundamental.  Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., No. 96267-7 (Nov. 5, 2020).  Justices González, Gordon-McCloud, and Yu signed a concurring opinion.  Justices Stephens, Owens, Johnson, and Fairhurst signed dissenting opinions.
 
 The Supreme Court granted petitions for review in the following cases on November 3, 2020:
Consciousness of Guilt and Closing Argument.  State v. Slater, No. 98795-5. Snohomish County.  Questions presented in the petition for review:  “Should missing a court hearing be automatically admissible against a defendant as evidence of flight and consciousness of guilt? 2. Do repeated statements of the defendant’s guilt and improper propensity comments constitute prosecutorial misconduct?”  COA opinion is unpublished.  Petition for review pleadings  available here.
 
Necessity Defense.  State ex rel. Haskell v. Spokane County Dist. Court, No. 98719-0.  Spokane County.  May a defendant who intentionally violates constitutional laws when protests and petitions were unsuccessful assert a necessity defense?  Does a defendant lack reasonable alternatives to protest simply because his protests and petitions did not bring about legislative change?  COA opinion reported at 13 Wn. App. 2d 573 (2020). Petition for review pleadings  available here.
 
Zoning and Cannabis Businesses.  Seven Hills, LLC v. Chelan County, No. 98730-1.  Chelan County.  Issues presented in petition for review: “1. Did Petitioners establish nonconforming rights through their activities on the Property prior to the enactment of Resolution 2016-14? 2. Did the enactment of a moratorium act to extinguish the creation of Petitioners non-conforming rights? 3. May Resolution 2016-14 be applied retroactively to extinguish Petitioners’ established vested rights?”   COA opinion is unpublished.  Petition for review pleadings  available here.
 
Public Works Contracts.  City of Puyallup v. Conway Constr. Co., No. 98753-0.  Issues presented in petitions for review: “Where a public works contract specifies certain conditions of default justifying termination and requires that any cure of those conditions be completed to the satisfaction of the owner’s engineer, is the  engineer entitled to exercise his discretion in rejecting the contractor’s tendered cure? Where a contractor has installed defective or unauthorized work before being terminated, should the owner be allowed to set-off the cost of correcting the defective work against amounts otherwise due the contractor?” Is RCW 39.04.240 an exclusive remedy such that parties cannot contract for additional fee and cost remedies in public works contracts?  COA opinion reported at 13 Wn. App. 2d 112 (2020).  Petition for review pleadings  available here.
 
Covenant Agreement.  Wood v. Cincinnati Specialty Underwriters Ins. Co., No. 98791-2. Issue presented:  Whether the trial court’s finding that a covenant agreement entered into between its insured and the claimants was reasonable.  COA opinion is unpublished. Petition for review pleadings  available here.
 

Division Three

Collective Bargaining.  A public employer and a bargaining representative each commit an unfair labor practice (ULP) when they refuse to bargain on mandatory subjects of bargaining unless the other agrees to a procedure that it lacks the prerogative to unilaterally decide.  Whether collective bargaining will take place in public or private is a permissive subject of bargaining that neither party can imposed upon the other.  Status quo is not an appropriate remedy when parties are unable to agree on a permissive subject of bargaining. Lincoln County v. Public Employment Relations Commission, COA No. 37054-2-III (Nov. 3, 2020).  Judge Korsmo signed the majority opinion and wrote a concurring opinion.
 
Sexually Violent Predators.  A person civilly committed as a sexually violent predator pursuant to chapter 71.09 RCW is not required to identify, for the trial court, a distinct less restrictive alternative facility appropriate for his care in order to defeat the State’s prima facie case of continued confinement in the Special Commitment Center and in order to gain an evidentiary hearing for release from the Special Commitment Center to a less restrictive alternative.  In re the Detention of McHatton, COA No. 37423-8-III (Nov. 5, 2020).  Judge Korsmo dissented in part.

 
Legal Update for Washington State Law Enforcement

 The October 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 


Ethics Advisory Committee

District Court Pro Tem Judges. “[C]riminal defense attorneys that routinuely practice in a county’s superior court should not preside over criminal cases or proceedings in the same county’s district court as pro tempore judges as it would undermine public confidence in the impartiality of the judiciary.”  Opinion 20-07 (Oct. 29, 2020). 
 

Arizona Disciplinary Matter

Prosecutor Discipline and Brady. Prosecutor reprimanded and placed on probation for one year for failure to disclose a witnesses’ PBT/HGN results to defense counsel and for failing to correct the witnesses’ statement during cross-examination that the witness had not consumed any alcohol in the preceding 24 hours.  In re Rubin, No. PDJ 2020-9095 (Oct. 13, 2020). 
WEEKLY ROUNDUP FOR OCTOBER 19-30, 2020

Washington Supreme Court

Immunity. The trial court lacked the inherent authority to grant derivative use immunity over the prosecutor’s objection to a parent, who was under criminal investigation for the conduct that gave rise to the dependency matter, with respect to statements made during court-ordered evaluation or services.   In the Dependency of A.M.-S., No. 98094-2 (Oct. 22, 2020).  Justice Madsen authored a concurring opinion. [Editor’s note: This opinion contains a good summary of the various types of immunity.]  Snohomish County Prosecuting Attorney’s Office was represented by Seth Fine.
 
Recall Petitions and COVID-19.  A city council member is not subject to recall for expressing skepticism about the response to COVID-19 by our state and local governments or for his Facebook post in which he stated “I will not comply!” to a face covering requirement.   Nothing in the governor’s “Stay Home–Stay Healthy” proclamation demands the allegiance of local legislators, and such a requirement would raise immediate constitutional concerns.   The legislative branch does not have a general duty to enforce public health orders–that duty belongs to the executive branch.  In re Recall of White, No. 98663-1 (Oct. 29, 2020). [Editor’s note: The Court allowed a recall petition to go forward as to an executive branch sheriff who incited the public to violate Governor Inslee’s “Stay Home-Stay Healthy” proclamation.  The opinion supporting that decision has not yet issued.  See In re Recall of Fortney, No. 98683-5 (Sep. 10, 2020).]
 

Division One

Collateral Attacks. The invalidation of Washington’s death penalty statute in 2019 did not constitute a material change in the law for purposes of RCW 10.73.100(6)’s exception to the one-year time limit on collateral attacks, as to a defendant who claims he would not have accepted a plea deal if he had known he would not be at risk of execution. “Materiality” for purposes of RCW 10.73.100(6) is not on whether a particular legal issue was important to the petitioner, but whether the change in the law, had it occurred before the petitioner’s conviction, would have altered the crimes of which he was convicted or the sentences he received.   In re Personal Restraint of Zamora, COA No. 80806-1-I (Oct. 26, 2020). 
 
SSOSA.  A trial court’s consideration of earlier violations when it revokes a defendant’s special sex offender sentencing alternative sentence does not violate double jeopardy.  State v. Wheeler, No. 79574-1-I (Sep. 29, 2020, publication ordered Sep. 29, 2020).
 

Division Two

Capacity to Commit a Crime.  While the State is not required to prove that the child had actual knowledge of the legal consequences of her conduct, the State must demonstrate in a capacity hearing that the child was able to entertain criminal intent.  The State must establish that the child knew the act was wrong in a moral sense and in a legal sense. The juvenile’s trial counsel provided ineffective assistance of counsel as there was no strategic basis for failing to present the juvenile’s diminished capacity defense.  State v. K.A.B., COA No. 51051-1-II (Aug. 25, 2020, publication ordered Oct. 27, 2020).
 
Recreational Use Immunity Statute.  Bollards, the short posts used to stop vehicles from entering a trail, can prevent application of the recreational use immunity statute as a dangerous condition and/or as a latent condition  Schwartz v. King County, COA No. 53588-2-II (Oct. 27, 2020).  Judge Worswick dissented.
 

Division Three

Commercial Sexual Abuse of a Minor.  RCW 9.68A.100(1)(b) requires the State to prove that the defendant offered payment for sexual relations with a corporeal minor.  The completed crime cannot be established by an offer of payment to a law enforcement officer acting as a minor.  State v. Majeed, COA No. 36591-3-III (Oct. 27, 2020).
WEEKLY ROUNDUP FOR OCTOBER 16, 2020

Washington Supreme Court

I-976 Car Tabs. Initiative Measure 976 is unconstitutional  article II, section 19 of the Washington Constitution by containing more than one subject and carrying a title that does not accurately express the subject matter of the initiative.  It is improper to combine a requirement to retire, defease, or refinance existing bonds that secure a specific existing project with more general statutory changes.   Garfield County Transportation Authority v. State, No. 98320-8 (Oct. 15, 2020).  Justice Madsen authored a concurring opinion.   County DPAs involved in case include King Cty DPAs David Hackett, David Eldred, Erin Jackson and Jenifer Merkel and Pierce Cty DPAs Daniel Hamilton and Frank Cornelius.
 
Sewer District Annexations.  King County’s attempt in 1985 to transfer sewer service territory that  lies within the corporate boundaries of Snohomish County to a sewer annexation district was void because under the limited authority of former Title 56 RCW and former RCW 36.94.410-.440, the superior court lacked subject matter and personal jurisdiction to adjudicate such an annexation.  Service provided by a county by contract to properties located within other districts are not subject to annexation.  Ronald Wastewater District v. Olympic View Water & Sewer District, No. 97599-0 (Oct. 15, 2020).  County DPAs involved in case include King County DPAs Verna Bromley, Mark Stockdale, Jennifer Stacy, Darren Carnell and Ann Summers and Snohomish County DPA Brian Dorsey.
 
Covid-19 Emergency Orders.  No. 25700-B-648 (rescinds temporary suspension of the application of RAP 18.8(b) and (c)).  No. 25700-B-647 (extended and revised order re dependency and termination cases).  No. 25700-B-646 (time for trial, arrest warrants, juvenile court jurisdiction and much, much more). 

Division One

Firearm Enhancements. Trial courts do not have the discretion to impose an exceptional sentence downward for firearm enhancements when the offenders are not under the age of 18 years at the time they commit the crime.  State v. Mandefero, COA No. 80072-8-I (Oct. 12, 2020). 
 
Youth and Exceptional Sentences Below the Standard Range.  The sentencing judge properly considered the youth of the defendant at the time of the crime (almost 19-years-old) and did not abuse her discretion by imposing a standard range sentence on two of the courts.  The sentencing judge did not deprive the defendant of due process during the resentencing hearing.  State v. Mandefero, COA No. 80072-8-I (Oct. 12, 2020).
 

Jury Unanimity.  The defendant was deprived of his right to a unanimous verdict where the harassment information charged him with threatening to kill “Christopher R. Wilson and/or Rina Sue Tappan,” the State did not elect between the two victims on the harassment charge, no unanimity instruction was given, and the to-convict instruction listed the first and second elements of the crime as “(1) That on or between 3/1/2018 – 3/7/2018, the defendant knowingly threatened to kill Chris Wilson and/or Rina Tappan immediately or in the future; (2) That the words or conduct of the defendant placed Chris Wilson and/or Rina Tappan in reasonable fear that the threat to kill would
be carried out.”  State v. Espinoza, COA No. 79413-2-I (Oct. 12, 2020).

Division Three

Bail Jumping.  The pattern instructions (WPIC 120.41) tendered by the trial court failed to instruct the jury on every element of the three bail jumping charges.  The pattern instructions omitted a requirement that the State prove the defendant knew he was required to appear on the dates alleged in the particular counts through proof that the defendant was given notice of the required court date.  By so holding Division Three creates a split with Division Two’s opinion in State v. Hart, 195 Wn. App. 449 (2016). The erroneous jury instructions were harmless beyond a reasonable doubt in this case. State v. Bergstrom, COA No. 37023-2-III (Oct. 15, 2020).  Judge Korsmo concurred in the result but disagreed with the panel’s criticism of State v. Hart.

 

American Bar Association

Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel.  Provides guidance as to how three categories of personal relationships with opposing counsel: (i) intimate partner; (ii) friendship, and (iii) acquaintances, should be analyzed under Model Rule 1.7(a)(2), which  prohibits a lawyer from representing a client without informed consent if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer.   Formal Opinion 494 (Jul. 29, 2020). 
WEEKLY ROUNDUP FOR OCTOBER 9, 2020

Washington Supreme Court

Double Jeopardy and Merger.  “[T]he proper application of the merger doctrine is not confined to the jury instructions or the charging document–to the contrary,[ a court should] look to the entire trial court record, particularly the evidence presented to the witnesses, closing arguments and the jury instructions.”  Based upon the entire trial record, the defendant’s robbery and felony murder convictions do not merge because the defendant completed the first robbery before the second robbery began that led to the felony murder charges.  Convictions for both robbery and felony murder in furtherance of robbery against the same victim does not violate double jeopardy because the two convictions served independent purposes or effects.  The defendant is barred from relitigating her double jeopardy challenge to her robbery and assault convictions against the other victim because the claim was fully litigated on the merits and disposed of on direct appeal.   In re Personal Restraint of Knight, No. 97066-1 (Oct. 8, 2020).  Dissenting justices were Yu, González,  Gordon McCloud, and Montoya-Lewis.  The State was represented in this case by Pierce County DPAs Robin Sand and Anne Egeler.
 
 The Court granted petitions for review in the following cases this week:
Quiet Title.  Rinehold v. Renne, No. 98694-1.  Issue(s): Whether summary judgment was properly granted in a quiet title action when the defendants did not produce a survey to rebut the validity of the plaintiff’s survey.  COA opinion is unpublished.   Petition for review pleadings  available here.
 
Counsel for Dependent Children.   In re the Dependency of E.M., No. 98596-1. Questions presented: Whether the trial court erroneously struck the notice of appearance filed by an attorney retained by the child’s maternal grandmother to represent the dependent child. COA opinion reported at 12 Wn. App. 2d 510 (2020).  Petition for review pleadings  available here.


Division One

Assault of a Child. Fourth degree assault is neither an inferior degree or a lesser included offense to third degree assault of a child.  Evidence that the defendant repeatedly submerged a non-verbal, speech delayed 2 1/2-year-old in a river was insufficient to establish that the defendant’s actions caused the toddler in her care to experience substantial pain that endured for a period of time long enough to cause considerable suffering.   State v. Loos, COA No. 80016-7-I (Oct. 5, 2020).
 
Statute of Limitations.  A defendant who proceeds to trial waives a statute of limitations defense by failing to raise the claim in the trial court.  An express waiver of the statute of limitations is not required.  A defendant who did not assert a statute of limitations defense in the trial court is precluded from raising the argument for the first time on appeal.   State v. Loos, COA No. 80016-7-I (Oct. 5, 2020).


Division Two

Presence of Children Aggravating Circumstance.  RCW 9.94A.535(3)(h)(ii), which allows a trial court to impose an exceptional sentence based on a jury finding that the “offense occurred within sight or sound of the victim’s or the offender’s minor children under the age of eighteen years,” includes a single minor child witnessing or hearing the offense.  The jury’s finding of this aggravating circumstance was amply supported by the defendant killing his wife while she was holding their infant child.  State v. Marjama, COA No. 53141-1-II (Oct. 6, 2020).
 
Right to Present a Defense.  The exclusion of a toxicology report that indicated the victim had methamphetamine in his body at the time of his death did not violate the defendant’s constitutional right to present a defense.  Evidence that might impact a defendant’s assessment of danger in a self-defense case is admissible only if known to the defendant when the incident occurred and the laboratory report lacked relevance to the defendant’s belief at the time of the shooting that the victim was under the influence of methamphetamine.  If the trial court abused its discretion under ER 401 and 402 by excluding the toxicology report, the error was harmless under the  non-constitutional harmless error test.  State v. Jennings, COA No. 52275-6-II (Oct. 6, 2020).
 
Second Degree Felony Murder.  Sufficient evidence supported that the defendant’s shooting of the victim was in the course of and in furtherance of the bear spray assault where the spraying and shooting occurred within seconds of each other and the shooting was a probable consequence of the spraying.   State v. Jennings, COA No. 52275-6-II (Oct. 6, 2020).
 
Witness Comment on Guilt.  If the trial court abused its discretion by refusing to strike a witness’s statement during cross-examination, which was offered by the witness as an explanation for an inconsistency between the witness’s statement immediately after the incident and his trial testimony, that he “watched [his] closest friend get murdered,” the error was harmless beyond a reasonable doubt.  The State never mentioned the comment in redirect examination or in closing argument, defense counsel reiterated the comment during cross-examination to suggest that the witness’s anger and emotional response colored the memory of the events, the witness’s testimony was corroborated by others, and such a comment is less prejudicial when made by a person closely identified with the victim, then by an impartial observer or a police officer.   State v. Jennings, COA No. 52275-6-II (Oct. 6, 2020).
 
Public Records Act.  The Public Records Act (“PRA”) does not require an agency to prove to the requestor the adequacy of its search while the search is ongoing and records are still being produced in installments.  The duty to search does not continue after the requestor abandons the request by failing to pay for or claim an installment of records for more than 30 days.  Cortland v. Lewis County, COA No. 52739-1-II (Jul. 21, 2020, publication ordered Sep. 29, 2020).  
       

Washington State Attorney General

“Federally Licensed Gunsmith” and Washington’s Background Check Statute.  A person licensed as a “dealer” under 18 U.S.C. § 923(a) is a “federally licensed gunsmith” under RCW 9.41.113(4)(f) when engaged in the business of repairing or modifying firearms.  A person licensed as a “manufacturer” or an “importer” under 18 U.S.C. § 923(a) is a “federally licensed gunsmith” under RCW 9.41.113(4)(f)  when engaged in the business of repairing or modifying firearms of the type he or she manufactures or imports at the premises where he or she is licensed to manufacture or import them. AGO 2020 No. 3 (Oct. 5, 2020). 

Legal Update for Washington State Law Enforcement

The September 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 

Oregon Supreme Court

Prosecuting Attorneys.  ORS 8.630 which specifies that ““A person elected district attorney must, at the time of election,  have  been  admitted  to  practice  in  the  Supreme  Court of Oregon,” imposing a continuing requirement of admission to practice in the Supreme Court of Oregon as many of the duties assigned to district attorneys require the ability to practice law.  A district attorney who is suspended from the practice of law for a brief period of time (60 days) for a disciplinary violation does not cease to possess the qualifications for his/her job.  State ex rel. Rosenblum v. Nisley, No. SC S067690 (Sep. 24, 2020).  [Editor’s Note:  Washington law regarding eligibility to serve as a prosecuting attorney is similar to that of Oregon:  “No person shall be eligible to the office of prosecuting attorney in any county of this state, unless he or she is a qualified elector therein, and has been admitted as an attorney and counselor of the courts of this state.” RCW 36.27.010.  Other aspects of Oregon law vary greatly from Washington law, i.e. vacancy statute, prosecuting attorney’s status as a state or county officer.]
 
WEEKLY ROUNDUP FOR SEPTEMBER 6-24, 2020; with thanks to Guest Editor King County DPA Kristin Relyea

Washington Supreme Court

Offender Score Calculation.  Defendant whose convictions were affirmed as to some counts in the information and was sentenced upon those counts prior to retrial on the reversed counts, was entitled to have his offender scores calculated on the retried counts as if his sentencing on the retried counts occurred at the same time as his sentencing on the affirmed counts.  In Re Personal Restraint of Cranshaw, No. 97778-0 (Sep. 24, 2020).

Adult Court Sentences for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday.  State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), holding that trial courts must consider the mitigating qualities of youth at sentencing and have the discretion to impose any sentence below the standard range or sentence enhancements, is a significant and material change in the law.  Houston-Sconiers announced a new substantive constitutional rule that must be applied retroactively.  Consequently, the petitioner’s claim is not time-barred.   Here, the petitioner is entitled to resentencing for a series of robberies that he committed at age 16 in 2008 because it appears more likely than not that the judge would have imposed a lower sentence had she understood that the Eighth Amendment requires absolute discretion to impose any sentence below the standard range based on youthful diminished culpability.  “It is imperative for courts to consider youthfulness at sentencing and for courts to have absolute discretion to impose any sentence below the SRA, including as little as no prison time, for crimes committed by children.”  In re Personal Restraint of Ali, No. 95578-6 (Sep. 17, 2020).  Dissenters were Justices Johnson, Madsen and Chief Justice Stephens.

Adult Court Sentences for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday. State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), constitutes a significant and material change in the law that requires retroactive application on collateral review.  The petitioner is entitled to resentencing because he was actually and substantially prejudiced by the sentencing court’s failure to meaningfully consider youth and to appreciate its absolute discretion to impose a sentence below the adult standard sentencing range for crimes that he committed when he was between 15-17 years old.   In re Personal Restraint of Domingo-Cornelio, No. 97205-2 (Sep. 17, 2020).  Dissenters were Justices Johnson, Madsen and Chief Justice Stephens.

Adult Court Sentences for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday. RCW 9.94A.535(1), placing the burden on juvenile defendants sentenced in adult court to prove mitigating circumstances is constitutional under the Eighth Amendment and article I, section 14 of our state constitution.  State v. Gregg, No. 97517-5 (Sep. 17, 2020).  Dissenters were Justices González, Gordon McCloud, Yu, and Montaya-Lewis.

Community Custody and Right to Travel.  An individual’s right to travel is limited by a criminal conviction while in prison and on community custody.  Any community custody condition imposed by the Indeterminate Sentencing Review Board (ISRB) must bear a reasonable relation to the circumstances of the crime, the offender’s risk of reoffense, and public safety.  Here, the ISRB did not abuse its discretion by requiring the defendant child molester to obtain written approval before entering the county where his victims lived, worked, and attended school.  In re Personal Restraint of Winton, No. 97452-7 (Sep. 17, 2020).

Guilty Pleas and Firearm Registration.  Affirmative misinformation as to a four-year firearm registration requirement does not render a defendant’s plea involuntary because it is not punishment and is therefore a collateral consequence of the plea.  Further, the circumstances here do not rise to the level of a manifest injustice requiring the withdrawal of the plea.  State v. Gregg, No. 97517-5 (Sep. 17, 2020). 

Division One

Open Public Meetings Act. A quorum of city council members participated in a non-public meeting by engaging in a series or meetings, phone calls, and electronic communications over a three day period.   If a quorum of a legislative body, such as the city council, collectively commits or promises to each other to vote—as a group—in favor of or in opposition to a piece of pending legislation at a future public meeting, then such a commitment may be evidence that a majority of the body attended a “meeting” with the collective intent to take an “action” in violation of the OPMA.  Summary judgment was improperly granted to the City Council as there are genuine issues of material facts as to whether the seven council members, by agreeing to join the draft press release, collectively committed to vote to repeal the EHT and, thereby, took “action” in violation of the OPMA.  West v. Seattle City Council, COA No. 79920-7-I (Sep. 8, 2020). 

Privacy and Text Messages. An officer violates a defendant’s article I, section 7 protections by sending a text message to a defendant from an unfamiliar phone number while impersonating a known contact of the defendant.  Consent from the known contact for law enforcement to use his phone for investigatory purposes is not a substitute for a search warrant.  State v. Bowman, COA No. 79023-4-I (Sep. 8, 2020). 

Restitution.  An adult court sentencing a defendant who committed his offense prior to his 18th birthday has discretion to consider the defendant’s youthfulness when it determines the amount of restitution owed to an insurance company.  State v. D.L.W., COA No.  (Sep. 14, 2020).       


Division Two

Uncharged Alternative Means.  Instruction the jury on an uncharged alternative of witness tampering was reversible error where both the State and the defendant referred to the uncharged alternative during their respective closing arguments and the State injected a fact into the trial that supported the uncharged alternative. State v. Sanchez, COA No. 52916-5-II (Jul. 21, 2020, publication ordered Sep. 9, 2020).

Sexually Violent Predators. The management of the day-to-day administration of a less restrictive alternative (LRA) order may be delegated to a court appointed transition team. Transition team was properly tasked with determining what types of movies, printed materials and similar items that the detainee is allowed during the LRA.  The provisions restricting the detainee’s access to certain media is not unconstitutionally vague.  The detainee’s right to due process is honored as he may obtain judicial review of any decisions made by the transition team and his LRA can only be revoked following a hearing.  The “legitimate demands” of the LRA supervision process necessitate random searches, and the substantial interest in protecting the public from the detainee outweighs his reduced privacy interest.   In re Detention of Lee, COA No. 52717-1-II (Jul. 28, 2020, publication ordered Sep. 9, 2020). 

Washington Ethics Advisory Committee

Judicial Officers and Firearms.  A judicial officer may not accept an commission as a special deputy sheriff for the purpose of carrying a personal firearm onto the courthouse premises.  Opinion 20-05 (Sep. 9, 2020).

 
Legal Update for Washington State Law Enforcement

The August 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
WEEKLY ROUNDUP FOR SEPTEMBER 4, 2020

Division One

Restoration of Firearm Rights. RCW 9.41.040(4)(b) is not a jurisdictional limit on a superior court’s authority to restore a defendant’s firearm rights. The statute gives a petitioner two venue options, one of which is any superior court of conviction and the other is the superior court in the county of the petitioner’s residence. The petitioner, who was a Pierce County resident, could obtain an order in King County Superior Court that restored his firearm rights as to his King County Superior Court conviction, his Pierce County Superior Court convictions, and his Lakewood Municipal Court conviction. State v. Manuel, COA No. 80405-7-I (Aug. 31, 2020).

Attempted Unlawful Possession of a Firearm. Attempted unlawful possession of a firearm does not include an element that the defendant intended to unlawfully possess a firearm, rather than just possess a firearm. State v. Nielsen, COA No. 79792-1-I (Aug. 31, 2020).

Division Two

Collateral Attacks. Proclamation 20-47 which tolled the one-year time bar in RCW 10.73.090 for thirty days preserved existing rights and did not revive expired claims. In re Personal Restraint of Blanks, COA No. 54672-8-II (Sep. 1, 2020).

Involuntary Administration of Antipsychotic Medication. The State must attempt to obtain an involuntarily committed person’s informed consent to treatment with antipsychotic medication before obtaining an order authorizing the involuntary administration of antipsychotic medication. This requirement applies even when the treating physician determines that an attempt to obtain informed consent would be futile because the patient lacks the competency to give informed consent. A violation of this mandate invalidates the order authorizing the involuntary administration of antipsychotic medication. In re Detention of L.K., COA No. 53377-4-II (Sep. 1, 2020).

Child Abuse Investigations. The special relationship creating a duty to protect recognized in H.B.H. v. State, 192 Wn.2d 154 (2018), does not extend to law enforcement agencies investigating allegations of child abuse. M.E. v. City of Tacoma, COA No. 53011-2-II (Sep. 1, 2020).

Critical Areas Ordinance. WAC 365-190-130(4)(b) expressly establishes that the Department’s priority habitat and species information for candidate species is the “best available science” and the Department has established that any occurrence of the western toad should be designated as a critical area. The County misapplied the best available science by only designating the known upland occurrences of the western toad as critical areas. The precautionary approach requires that new upland occurrences must also be designated as critical areas and protected when they are discovered. The provision granting the planning director unrestrained discretion to waive the required biological site assessment is contrary to law. The 1,000-foot radius for requiring a biological assessment is neither arbitrary nor capricious. Whidbey Environmental Action Network v. Island County, COA No. 52923-8-II (Sep. 1, 2020).

Division Three

Accomplice Liability. The State’s request for an accomplice jury instruction was properly granted. The State was not bound by the testimony of its witness, who the defense argued was the primarily culpable actor. Other evidence submitted to the jury could lead the jury to conclude that the witness’s claim of innocent participation was not credible. State v. Miller, COA No. 37351-7-III (Sep. 1, 2020).

“Assumption of False Identity.” Sufficient evidence supported the defendant’s conviction for criminal impersonation in the first degree. The defendant’s phone call to the victim’s annuity company in which the defendant provided his true name while falsely claiming to be the victim’s nephew is the assumption of a false identity. Falsely asserting a family relationship to facilitate a fraud or advance some other unlawful purpose is consistent with the plain language of RCW 9A.60.040(1)(a). State v. Miller, COA No. 37351-7-III (Sep. 1, 2020).

WEEKLY ROUNDUP FOR AUGUST 28, 2020

Division One

Use of Initials. The use of a child’s initials in the to convict instruction does not constitute a judicial comment on the evidence, nor does it relieve the State of its burden of proof. The use of a child’s initials, instead of her full name, in court documents does not constitute a court closure and does not violate a defendant’s public trial right. State v. Mansour, COA No. 78708-0-I (Aug. 24, 2020).

Personal Restraint Petitions. The two year statute of limitations codified at RCW 4.16.130 applies to personal restraint petitions raising due process challenges to a serious infraction proceeding that occurred in the Department of Corrections. In re Personal Restraint of Heck, COA No. 79654-2-I (Aug. 24, 2020).

WEEKLY ROUNDUP FOR AUGUST 21, 2020

Washington Supreme Court

Closing Arguments. Framing a prosecution as representative of the war on drugs deprives a defendant of a fair trail and constitutes reversible error. The lack of an objection in the trial court to the prosecutor’s framing of the defendant’s prosecution as representing the war on drugs and reinforcing the theme throughout the case was flagrant and ill intentioned misconduct, such that the defendant’s failure to object does not preclude relief. State v. Loughbom, No. 97443-8 (Aug. 20, 2020). State was represented by Lincoln County DPA Adam Walser.

County Government. A statute that requires noncharter counties with populations of 400,000 or more to elect five county commissioners, one from each of the districts drawn by a redistricting committee, does not violate article XI, section 4 of of the Washington Constitution—mandating the legislature to establish a uniform system of county government—and article XI, section 5—requiring the legislature to provide for the election of county commissioners through general and uniform laws. The legislature may classify counties by population for any purpose that does not violate other constitutional provisions. State ex rel. Maulsby v. Fleming, 88 Wash. 583 (1915), a case that struck down a legislative scheme that removed the county coroner office in a certain class of counties is overruled. Spokane County v. State, No. 97739-9 (Aug. 20, 2020).

Division One

Burglary. Trespass is not a lesser included crime of burglary. This is because knowledge of the unlawfulness of one’s entry or remaining which is an essential element of trespass, is not an element of the crime of burglary. State v. Moreno, COA No. 78856-6-I (Aug. 17, 2020).

Discovery Obligations. The State did not violate its discovery obligations where it provided defense counsel with a copy of all of the defendant’s recorded jail calls and then used one of those calls to impeach the defendant’s trial court testimony. It was not until the defendant testified at trial that the used calls became relevant, so the trial court did not abuse its discretion in allowing the State to admit the recordings, despite the State’s pre-trial representation that it did not intend to use any of the jail calls. State v. Moreno, COA No. 78856-6-I (Aug. 17, 2020).

Offender Score Calculation. The defendant’s burglary and assault convictions encompass the same criminal conduct. Matter remanded for resentencing as the appellate court could not determine whether the trial court would imposed the same sentence based upon the burglary antimerger statute. State v. Moreno, COA No. 78856-6-I (Aug. 17, 2020).

Improper Opinion Evidence. “It is inappropriate in a criminal trial for a prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer. New trial required when the prosecutor, despite repeated sustained objections, continued to question the officer until he finally confirmed that he would not make an arrest if he did not have a credible witness–as this implied to the jury that the officer believed the victim over the defendant. State v. Hawkins, COA No. 79897-9-I (Aug. 17, 2020).

Division Two

Depictions of a Minor Engaged in Sexually Explicit Conduct. A person has no privacy interest under article I, section 7 in the images obtained by an internet cloud storage service provider who then provides the images to law enforcement. A detective does not require a search warrant before opening or viewing the images forwarded to him or her from the internet cloud storage service provider. State v. Harrier, COA No. 52544-5-II (Jun. 23, 2020, publication ordered Aug. 18, 2020).

Division Three

Retroactivity of McFarland. State v. McFarland, 189 Wn.2d 47 (2017), which held that exceptional sentences were available for unlawful possession of weapons offenses sentenced under RCW 9.94A.589(1)(c), does not constitute a significant change of law that justifies applying the case retroactively. In re Personal Restraint of Henriques, COA No. 36408-9-III (Aug. 18, 2020).

Governor’s Proclamation. Governor’s Proclamation 20-47 which waived the time bar of RCW 10.73.090 for a thirty day period did not waive RCW 10.73.140, the successive petition rule. In re Personal Restraint of Henriques, COA No. 36408-9-III, n. 2 (Aug. 18, 2020).

Credit for Time Served. The defendant was properly denied credit for time served in Oregon after service of the Washington arrest warrant and prior to the defendant’s return to Washington. Washington issued a “no bail” warrant, so the defendant’s wealth or poverty made no difference concerning his ability to achieve pre-trial release on the Washington offense. When the defendant was sentenced in Washington, he had not yet been sentenced in Oregon so Washington lacked the ability to order a concurrent sentence. Oregon, moreover, credited the defendant for every day spent in custody, including any time that overlapped with the Washington detention and the Washington sentence. State v. Enriquez-Martinez, COA No. 36190-0-III (Aug. 18, 2020).

Possession of a Controlled Substance. Splitting from Division One’s decision in State v. Clark-El, 196 Wn. App. 614 (2016), and a decision of another panel of Division Three judges in State v. Barbarosh, 10 Wn. App. 2d 4088 (2019), the court holds that a verdict form that directed the jurors to determine whether the defendant was guilty or not guilty “of the crime of Possession of a Controlled Substance–other than Marijuana,” was sufficient to place the defendant’s offense within the scope of the felony sentencing grid. State v. Gardner, COA No. 36660-0-III (Aug. 18, 2020).

Ninth Circuit

Second Amendment. California Government Code § 31310, which bans possession of large capacity magazines (“LCMs”) that hold more than ten rounds of ammunition, violates the Second Amendment. Firearm magazines are protected arms under the Second Amendment. LCMs are commonly owned and typically used for lawful purposes. LCM prohibitions are not longstanding regulations that enjoy a presumption of lawfulness. The statutes near-categorical ban of LCMs does not survive strict scrutiny. Duncan v. Becerra, No. 19-55376 (9th Cir. Aug. 14, 2020).

 

WEEKLY ROUNDUP FOR AUGUST 14, 2020

Division One

Court Rule and Constitutional Speedy Trial. Local custom is irrelevant to a determination of whether any provision of CrRLJ 3.3 was violated. This is because CrRLJ 3.3(a)(4) expressly prohibits dismissal for delays arising from circumstances that are not explicitly addressed in CrRLJ 4.14 or CrRLJ 3.3. Accord CrRLJ 3.3(h). A new commencement date following a defendant’s failure to appear at a mandatory hearing only begins with a defendant’s appearance in the specific case; an appearance on an unrelated charge in a municipal court will not satisfy the presence requirements of CrRLJ 3.3(a)(3)(iii). Mere indication that a warrant was returned is not sufficient to satisfy the second requirement of CrRLJ 3.3(a)(3)(iii). The lapse of 4 years, 10 months, and 27 days from the date the DUI charge was filed until the defendant was brought to trial does not violate the Sixth Amendment because the delay was due to the defendant’s refusal to receive the mailed summons at his home address or, if he had moved, failing to update his address with DOL as required by RCW 46.20.205, and all but 83 days of the delay was attributed to the defendant’s failure to appear at the scheduled arraignment. The defendant is not deemed to have asserted his right to a speedy trial as he only raised the issue in his motion to dismiss pursuant to CrRLJ 3.3 State v. Nov, COA No. 79466-3-I (Aug. 10, 2020).

Division Three

COVID-19 and RCW 10.73.090. Proclamation 20-47, which waived and suspended RCW 10.73.090, preserved only existing rights. The proclamation does not allow an individual to file a collateral attack that was already untimely under RCW 10.73.090, prior to April 14, 2020. In re Personal Restraint of Millspaugh, COA No. 37552-8-III (Aug. 11, 2020).

Legal Update for Washington State Law Enforcement

The July 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

 

WEEKLY ROUNDUP FOR AUGUST 7, 2020

Washington Supreme Court

On August 4, 2020, the Court granted review of the following case:

Lesser Included/Lesser Degree Offenses. State v. Coryell, No. 98256-2. Thurston County. Question presented: Whether the current standard for determining whether a lesser included offense instruction should be tendered to the jury is incorrect and harmful. COA opinion is unpublished. Petition for review pleadings available here.

Division One

Deferred Prosecution. The deferred prosecution statute does not prohibit a court from considering a defendant’s residency. The court neither abused its discretion nor denied the defendant’s equal protection rights in denying a deferred prosecution to a defendant who lives out of state due to the difficulty in ensuring compliance with the deferred prosecution program. Thornock v. Lambo, COA No. 80294-1-I (Aug. 3, 2020).

Division Three

Community Custody. Requirements that a defendant, who was convicted of second degree attempted rape of a child, inform the supervising CCO and sexual deviancy treatment provider of any dating relationship and that he disclose his sex offender status prior to any sexual contact are affirmative conduct requirements governed by RCW 9.94A.703(3)(d) that are reasonably related to the safety of the community. A requirement for treatment provider approval for sexual contact is a proper crime-related requirement when it does not require contact-by-contact approval and is read to require that he not have sexual contact until his treatment provider is satisfied that sexual contact does not put others at risk. The clause prohibiting the defendant from “prohibition upon from possessing, using, accessing, or viewing “any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4), is unconstitutionally vague as it includes conduct such as simulated sexual intercourse that – engage in by adults–appears in mainstream media. A condition of “No internet use of websites, including email, to contact minors, to gather information about minors, or access personal webpages of minors” is neither vague nor overbroad. In re Personal Restraint of Sickels, COA No. 36753-3-III (Aug. 4, 2020).

DOSA Revocation. A court that revokes a prison-based DOSA during the period of community custody may impose a top of the standard range sentence with credit for time served, rather than imposing the remainder of the original sentence. State v. Salazar, COA No. 36960-9-III (Jul. 28, 2020).

Ninth Circuit

Brady Violations. District court properly dismissed criminal prosecution with prejudice under its supervisory powers where federal agencies recklessly withheld/failed to make known exculpatory evidence that should have been disclosed well before trial, until after the trial started, and the prosecution made deliberate choices, not mere misjudgment, by withholding facially exculpatory evidence that directly negated the government’s theory of the case. Lesser sanctions would have given the government an opportunity to strengthen its case at the defendants’ expense and would not deter future prosecutors from engaging in the same misconduct as occurred here. The Court did not that in affirming the district court it did not intend “to cast aspersion on the professionalism of the members of the U.S. Attorney’s Office here [as] much of the ‘blame’ from the constitutional violations here falls on the prosecution only because actions and knowledge related to evidence by other government agencies are imputed to the prosecution.” United States v. Bundy, No. 18-10287 (9th Cir. Aug. 6, 2020).

Termination of Pro Se Status. While a defendant’s right to represent himself or herself may be terminated for outrageous conduct, such as threatening a juror or taunting the judge, the right by not be terminated by a single instance of disobedience that is unaccompanied by open defiance or disruption. The defendant’s right of self-representation was violated in this case when the court terminated it, without prior warning, after the defendant asked a single question that was prejudicial to government. United States v. Engel, No. 18-10293 (9th Cir. Aug. 6, 2020).

 

WEEKLY ROUNDUP FOR JULY 24, 2020

Washington Supreme Court

COVID-19 and Incarceration. The writ of mandamus to force Governor Inslee and Department of Corrections Secretary Stephen Sinclair (collectively “DOC”) to reduce the prison population by ordering the immediate release of three categories of offenders is denied on separation of powers grounds. The writ asks the judiciary to encroach on the executive branch and exceed the court’s authority based on policies the legislature never approved. The record before the Court, moreover, demonstrates that DOC has not acted with deliberate indifference to the extreme risk that COVID-19 creates for the incarcerated. Colvin v. Inslee, No. 98317-8 (Jul. 23, 2020). Dissenters were Justices González, Yu, Montoya-Lewis, and Gordon McCloud. Governor Inslee was represented by AAGs John Samson and Tim Lang. Pierce County DPA Teresa Chen authored WAPA’s amicus brief and Kitsap County DPA Jacquelyn Aufderheide and Skagit County DPAs Haley Sebens and Nathaniel Block authored WSAC’s amicus brief.

Ninth Circuit

Parking Fines. The Eighth Amendment’s Excessive Fines Clause applies to municipal parking fines. An initial fine of $63 for violating parking ordinance was not grossly disproportionate to the offense of overstaying the time at a parking space. The setting of a late fee at one hundred percent of the initial fine must be remanded for the City to justify. Pimentel v. City of Los Angeles, No. 18-56533 (9th Cir. Jul. 22, 2020).

Tennesee Court of Criminal Appeals

COVID-19 and Confrontation. Testimony via two-way video conferencing technology requires a case-specific and witness-specific determination of whether the denial of the defendant’s right to confront witnesses is necessary to further an important public interest. The trial court may consider the negative implications, including health issues, and/or trauma to the witness and the relative importance of the testimony. State v. Seale, No. M2019-01913-CCA-R9-CD (Tenn. Cr. App. Jul. 20, 2020).

 

WEEKLY ROUNDUP FOR JULY 17, 2020

Washington Supreme Court

Pre-trial Restraints. The shackling or handcuffing of a defendant at any stage of proceedings without an individualized inquiry into whether shackles or restraints are necessary violates the defendant’s constitutional rights. The burden is on the State to prove the harmlessness of the shackling or restraints beyond a reasonable doubt. This burden may be met where the State can prove that under the Hutchinson/Hartzog individualized shackling factors that the defendant would have been required to wear restraints. The State does not meet this burden by establishing that no jurors observed the restraints during trial. When the State does not meet its burden to prove that the use of restraints at trial was harmless beyond a reasonable doubt, satisfy this burden the defendant is entitled to a new trial and the defendant may only be restrained or shackled during any stage of the proceedings after the court makes an individualized inquiry into whether shackles or restraints are necessary. State v. Jackson, No. 97681-3 (July 16, 2020). The State was represented by Clallam County DPA Jesse Espinoza. WAPA Appellate Resource Attorney/Spokane County DPA Gretchen Verhoef filed an amicus brief on behalf of WAPA.

Division Three

True Threats. The State failed to establish that the 17-year-old girl’s texts to friends, sent in the midst of a mother-daughter fight, and which interspersed statements that she wanted to kill her mother with smiling emojis and “LOL” do not constitute true threats for purposes of the harassment statute as there is no indication the girl ever meant for her mother to see the texts of that she ever threatened her mother directly. In assessing whether a defendant’s speech constituted a true threat, the focus is the impact the language would have on the defendant’s intended audience. State v. D.R.C., COA No. 36821-1-III (Jul. 14, 2020).

Sexually Violent Predator. An order revoking a community-based less restrictive alternative (LRA)is not an appealable order. Detention of McHatton, COA No. 37356-8-III (Jul. 14, 2020).

American Bar Association

Harassment or Discrimination. This opinion offers guidance on the purpose, scope, and application of Model Rule 8.4(g). The Rule prohibits a lawyer from engaging in conduct related to the practice of law that the lawyer knows or reasonably should know is harassment or discrimination on the basis of various categories, including race, sex, religion, national origin, and sexual orientation. Whether conduct violates the Rule must be assessed using a standard of objective reasonableness, and only conduct that is found harmful will be grounds for discipline. Formal Opinion 493 (July 15, 2020). [Editor’s Note: Washington’s RPC 8.4(g) and (h) vary from the model rule in a number of ways. Nonetheless, this ethics opinion provides valuable guidance as to the interpretation of our rule.]

 

WEEKLY ROUNDUP FOR JULY 10, 2020

Washington Supreme Court

On July 7, 202, the Court granted petitions for review in the following cases:

Drug Sentencing. State v. Peterson, No. 98201-5. Lewis County– State’s Petition. Questions presented: Whether a person convicted of selling heroin for a profit, RCW 69.50.410(3)(a), is to be sentenced under the Sentencing Reform Act or to the mandatory two-year sentence found in RCW 69.50.410(3)(a)? COA opinion reported at 12 Wn. App. 195 (2020). Petition for review pleadings available here.

Appeal as a Matter of Right. State v. Waller, No. 98326-7. King County– State’s Petition. Questions presented: Whether a trial court’s grant of resentencing pursuant to a CrR 7.8(b)(5) motion is appealable as a matter of right by the State under RAP 2.2(b)(3)? COA opinion reported at 12 Wn. App. 2d 523 (2020). Petition for review pleadings available here.

Tort Liability. Meyers v. Ferndale School Dist., No. 98280-5. Questions presented: Whether a school district may be liable for the death of a student who was struck by a car while walking on a sidewalk during a physical education class – foreseeability or field or zone of danger? COA opinion reported at 12 Wn. App. 2d 254 (2020). Petition for review pleadings available here.

Tort Damages. Coogan v. Genuine Parts Co., No. 98296-1. County. “Petition for review granted as to all issues; issues raised in the answer granted.” Questions presented: Whether the jury’s damage awards was improperly reduced by the appellate court? Whether the trial court erred by excluding evidence of the deceased’s alcohol related condition under ER 403? Whether the plaintiff’s attorney’s misconduct during witness examination warrants a new trial on both liability and damages? Whether the trial court erred by denying the defendant’s motion for relief from judgment under CR 60(b)(3) and (b)(4) based upon the alleged misrepresentation of facts and hidden evidence? COA opinion is unpublished. Petition for review pleadings available here.

The Court also granted three motions for discretionary review:

ISRB Jurisdiction. In re Personal Restraint of Brooks, No. 97689-9. King County (AG matter). Issue: Whether RCW 9.94A.730 applies to offenders convicted pre-Sentencing Reform Act who are subject to the Indeterminate Sentencing Review Board’s jurisdiction under RCW 9.95. Brooks was convicted in King County in 1978 of murder, robbery rape, and other serious crimes. He argues he’s entitled to petition for early release under RCW 9.94A.730. The chief judge summarily dismissed his Personal Restraint Petition.

Early Release of “Juvenile” Offenders. 2. In re Personal Restraint of Betancourt, No. 97973-1. Grant County (AG matter). Issue: What factors may the Indeterminate Review Board consider when it considers the early release of “juvenile” under RCW 9.94A.730? Betancourt was convicted of two counts of murder in Grant County in 1997. The ISRB denied his application for release under RCW 9.94A.730 after conducting a hearing. The Court of Appeals certified the case to the Supreme Court.

Immigration Consequences. In re Personal Restraint of Garcia-Mendoza, No. 98026-8. Snohomish County. Issue: Whether Tsai and Sandoval created a significant change in the law with regard to the statutory notification requirement in RCW 10.40.200(2), such that a court’s failure to provide the statutory warning requires granting a motion to withdraw a guilty plea, regardless of evidence of prejudice.

Division Three

Self-Representation. Trial court properly revoked competent defendant’s pro se status and appointed counsel, as the defendant, who argued with the court and prospective jurors, berated the court, and asked unusual questions to the trial court, lacked the mental capacity to represent himself. State v. Smith, COA No. 36552-2-III (Jul. 9, 2020).

Legal Update for Washington State Law Enforcement

The June 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Reasonable Suspicion and 911 Calls. Factors that can demonstrate the reliability of a tip relayed by a third party to 911 requires a court to consider the reliability of both the caller himself and the third party whose tip the caller conveys. Factors include whether the caller provides a name and other identifying information, the caller dialed a recorded emergency line, the size of the likely class of informants, the number of individuals providing information to the caller, and whether the tipster relays fresh, eyewitness knowledge, rather than stale, second-hand knowledge, United States v. Vandergroen, No. 19-10075 (9th Cir. Jul. 7, 2020). [Editors note: A bare report that someone is in possession of a firearm in Washington does not provide reasonable suspicion for an investigative stop. This is because Washington is both an open carry state and liberally grants concealed weapons permits. See United States v. Brown, 925 F.3d 1150, 1154 (9th Cir. 2019). A stop may have been permissible in this case if the individual with the pistol had been in that portion of the lounge “classified by the state liquor and cannabis board as off-limits to persons under twenty-one years of age.” RCW 9.41.300(1)(d).]

WEEKLY ROUNDUP FOR JULY 3, 2020

Washington Supreme Court

Land Use Petition Act. Because the Yakima County Code requires a final land use decision, including a decision following review by the board of county commissioners, to be written “for the purposes of Chapter 36.70(c) RCW, the 21-day period for filing a LUPA petition in superior court begins on the day the BOCC’s proclamation is transmitted to the parties, not the day the proclamation is reduced to writing at a public meeting. Confederated Tribes & Bands of the Yakama Nation v. Yakima County, No. 97910-3 (Jul. 2, 2020).

Privileges. In a case involving the marital counseling privilege, the Court holds that an exception to the privilege in one subsection of RCW 5.60.050 does not apply to any other subsection of RCW 5.60.050. Magney v. Pham, No. 96669-9 (Jul. 2, 2020). Justices Gordon McCloud and González dissent as to the process the majority sets out for determining implied waiver.

Division One

Sexual Assault Protection Orders. Children under the age of eight may not be restrained by a Sexual Assault Protection Order (SAPO) because they lack the capacity to commit a sexual assault or other crime. A temporary SAPO is also unavailable to retrain a child under age twelve because the child is still presumed incapable of committing crime at that age. For children between eight and 12 years only, a permanent SAPO restraining their conduct may be available, but only after a hearing in which the presumption of incapacity is removed. In re Jones, COA No. 79767-1-I (Jun. 29, 2020).

Division Two

Warrantless Blood Draw. Exigent circumstances justified the warrantless blood draw done at the scene of a car collision. When law enforcement arrived at the scene of the collision, the defendant was trapped in her vehicle, a strong order of alcohol was emanating from her, her speech was slurred and repetitive, and she admitted to drinking at alcohol. At the time of the draw, paramedics had extracted the defendant from the car, were about to administer IV fluids and medications, whose effect on blood alcohol were not known to the officer, and were planning to immediately depart for the hospital. A telephonic search warrant, which takes between 20 and 45 minutes in the county where the accident occurred, could not be obtained prior to the administration of drugs. State v. Rawley, COA No. 52344-2-II (Mar. 23, 2020, publication ordered Jun. 30, 2020).

Organized Retail Theft. Theft by ordering items online from catalogs will not support a conviction for second degree organized retail theft, because the takings are not from a “mercantile establishment.” The undefined statutory phrase, “mercantile establishment,” only applies to a physical establishment. State v. Lake, COA No. 52204-7-II (Jun. 30, 2020).

Public Records Act. Paratransit, a private corporation whose operations are funded through its contacts with the state, is not the functional equivalent of a government agency to which the Public Records Act (PRA) applies. A clause in Paratransit’s contract with the state which provides that “The Contractor certifies that the Contractor is now, and shall remain, in compliance with Chapter 42.52 RCW, Ethics in Public Service, throughout the term of this Contract,” does not obligate Paratransit to comply with the PRA. McKee v. Paratransit Services, COA No. 51920-8-II (Apr. 7, 2020, publication ordered Jun. 30, 2020).

Ninth Circuit

Retrocession. The State of Washington may exercise criminal jurisdiction over members of the Confederated Tribes and Bands of the Yakama Nation who commit crimes against non-Indians on fee simple property located within the exterior boundaries of the Yakama reservation, and over non-Indians who commit crimes against Indians anywhere within the Yakama reservation. Confederated Tribes and Bands of the Yakama Nation v. Yakima County, No. 19-35199 (9th Cir. Jun. 29, 2020).

Maryland Court of Appeals

Defense Counsel Conduct. Criminal defense attorney disbarred, in part, for violations of RPC 4.3 (dealing with unrepresented person) and RPC 8.4 (a), (c), and (d) (misconduct). The improper conduct related to these rules arose in a child sex abuse case. The attorney met alone with the 16-year-old victim and advised her that he would cross-examine her at trial about her sexual history and drug and alcohol abuse, that the attorney did not believe the victim’s statement that she had been raped and that she was blaming the defendant because she regretted her decision about sex, encouraged the victim to “shed” all the shame and discrimination arising from gender and cultural issues, and took other actions to dissuade the victim from participating in the prosecution. The attorney also referred the victim to another lawyer who the attorney had a pre-existing professional relationship with and whose fee would be paid for by the father of the client, so that this lawyer could discuss the victim’s rights with her. Attorney Grievance Commission of Maryland v. Hoerauf, No. 468445V (Md. Jun. 26, 2020).

Forum of Hate E-mails. Two government attorneys were indefinitely suspended from the practice of law for membership in the “forum of hate.” The two attorneys, for approximately seven years, while working for the federal government, participated in an exchange of emails among a group of federal government employees, who were also lawyers, using their official government e-mail addresses during work hours to make disturbingly inappropriate and offensive statements about Hispanic, Asian, and African American people, and people whom they referred to as gay men, who were their colleagues. Their conduct violated RPC 8.4(d) (conduct that is prejudicial to the administration of justice), RPC 8.4(a) (violate the RPC), and 8.4(g) and/or (h) (bias of prejudice). Attorney Grievance Commission of Maryland v. Markey, No. 468469-V (Md. Jun. 26, 2020).

WEEKLY ROUNDUP FOR JUNE 26, 2020

Washington Supreme Court

Public Defense. The State of Washington is not liable for alleged systemic, structural deficiencies in a county’s delivery of indigent public defense. Davison v. State, No. 96766-1 (Jun. 25, 2020). Justices Gozález, Yu and Gordon McCloud concurred.

Division Two

Victim Recantation. The trial court abused its discretion in limiting the defendant’s cross-examination of his girlfriend’s testimony. Defendant was entitled to ask his girlfriend if she felt pressured or threatened regarding her testimony, which recanted the sworn statement she made shortly after the incident. Expert testimony that as a general matter it is somewhat common for survivors of domestic violence to later recant or minimize their allegations did not constitute an improper comment on the defendant’s girlfriend’s credibility. State v. Case, COA No. 52464-3 (Jun. 23, 2020)

Public Records Act. The City’s redactions to requested performance evaluations were proper under the PRA’s “personal information” exemption, and the City’s accompanying privilege log contained adequate explanations. Items redacted were performance ratings, specific examples, employee’s listed goals, steps toward achievement, progress, target dates, supervisor’s comments, and overall rating. Church of the Divine Earth v. City of Tacoma, COA No. 53804-1 (Apr. 14, 2020, publication ordered Jun. 23, 2020).

Fourth Circuit

Closing Argument. Allowing the prosecution to waive its initial closing argument while retaining the opportunity to rebut the defendant’s argument, improperly impairs a defendant’s ability to rebut the governments arguments. United States v. Smith, No. 19-4321 (4th Cir. Jun. 16, 2020). [Editor’s Note: CrR 6.15(d) provides for the same order or argument as prescribed in Rule 29.1 of the Federal Rules of Criminal Procedure.]

Ohio Board of Professional Conduct

Concurrent Representation of Clients– RPCs 1.7 and 1.10. A law firm must withdraw from the concurrent representation of multiple clients or seek their informed, written consent when the clients’ disparate interests as to the outcome of the same matter materially interferes with the firm’s lawyers’ independent professional judgment in representing either client. Ohio Board of Professional Conduct, Opinion 2020-04 (Jun. 12, 2020). [Editor’s note: Public defenders, unlike prosecuting attorneys, are subject to RPC 1.10. See Wash. RPC 1.10(d) (“The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. However, lawyers appointed or assigned to represent indigent members of the public (public defenders) are subject to this rule regardless of whether they are government employees.”)]

WEEKLY ROUNDUP FOR JUNE 19, 2020

United States Supreme Court

Federal Employment Discrimination Law. Title VII’s ban on discrimination protects gay, lesbian and transgender employees. Bostock v. Clayton County, Georgia, No. (Jun. 15, 2020). Justices Alito, Thomas, and Kavanaugh dissented.

Dissents from Denial of Certiorari. The Court declined review of cases involving the Second Amendment Right to Bear Arms and Qualified Immunity. Justices Thomas and Kavanaugh dissented with respect to the Second Amendment, while Justice Thomas was the lone dissenter in the qualified immunity case. Robers v. Grewal, No. 18-824 (Jun. 15, 2020) (Second Amendment case); Baxter v. Bracey, No. 18-1287 (Jun. 15, 2020) (qualified immunity).

Washington Supreme Court

Washington Law Against Discrimination. A school district may be subject to strict liability for discrimination in places of public accommodation by its employees in violation of the Washington Law Against Discrimination (“WLAD”). Under the WLAD, discrimination can encompass intentional sexual misconduct, including physical abuse and assault. W.H. v. Olympia School District, No. 97630-9 (Jun. 18, 2020).

Division One

Illegal Search. The fruits of a warrantless search of a sleeping individual in a Starbucks store should have been suppressed as the officer was not conducting a criminal trespass investigation when he removed a metal utensil that was sticking out of the defendant’s pocket. In addition, the officer removed the utensil prior to conducting a pat-down of the outside of the pocket. If the officer had done so, he would have discovered that the item was a spoon and not a sharp object. The removal of the utensil was not proper under the emergency aid function of the community caretaking exception as the record is insufficient to find that the officer was conducting a routine check on health and safety rather than a criminal investigation. State v. Martin, COA No. 78958-9-I (Jun. 15, 2020).

Division Two

Outrageous Police Misconduct and Online Sting Operations. Neither the Washington State Patrol Missing and Exploited Children Task Force’s “Net Nanny” operations receipt of funds from private citizens and organizations, such as Operation Underground Railroad, nor the nature of communications between the defendant and that law enforcement officer who identified himself/herself as “Hannah”, violates due process under the State v. Lively, 130 Wn.2d 1 (1996), test for outrageous police misconduct. State v. Glant, COA No. 52142-3-II (Apr. 14, 2020, publication ordered Jun. 16, 2020).

Washington State Privacy Act. The defendant impliedly consented to the recording of his messages to an undercover law enforcement officer who identified himself/herself as “Hannah” by choosing to communicate through e-mail and text messages that the defendant knew would be recorded. State v. Glant, COA No. 52142-3-II (Apr. 14, 2020, publication ordered Jun. 16, 2020).

Constitutional Right to Privacy. Article I, section 7 of the Washington Constitution is not violated when a person voluntarily communicates with a stranger and the stranger, an undercover police officer, views the sent e-mails and texts without a warrant. State v. Glant, COA No. 52142-3-II (Apr. 14, 2020, publication ordered Jun. 16, 2020).

Appeal of Sentence. The defendant cannot appeal his standard range sentence. The sentencing judge did not categorically refuse to consider an exceptional sentence downward based upon youthfulness, rather he did not find such a sentence appropriate in this case. State v. Glant, COA No. 52142-3-II (Apr. 14, 2020, publication ordered Jun. 16, 2020).

WEEKLY ROUNDUP FOR JUNE 12, 2020

Washington Supreme Court

The Washington Supreme Court has accepted review in the following case:

SSOSA. State v. Pratt, No. 98066-7. Clark County. Whether in this prosecution for first degree child molestation, the defendant had a sufficient connection to the victim to make him eligible for the special sex offender sentencing alternative pursuant to RCW 9.94A.670(2)(a), under which an offender is eligible only if the offender had a sufficient relationship with or connection to the victim such that the crime itself did not constitute the sole connection. COA opinion is reported at 11 Wn. App. 2d 450 (2019). Petition for review may be found here.

Division One

Firearm Enhancements. State v. Brown, 139 Wn.2d 20 (1999), requires firearm enhancements to be served consecutively in cases in which the defendant was 18-years or older when s/he committed the crimes. State v. Brown, COA No. 79954-1-I (May 18, 2020).

Motions for Immediate Release. A prison inmate is not entitled to release from confinement under either the Eighth Amendment or article I, section 14, as he has produced no evidence that the Department of Corrections has ignored the risk COVID-19 presents to Washington prison inmates. An inability to achieve meaningful social distancing in a jail or prison does not evince deliberate indifference to the COVID-19 risk. DOC has not violated its common law duty to protect inmates as it is exercising reasonable care in formulating and implementing screening, prevention, and treatment policies to mitigate COVID-19 risks. In re Personal Restraint of Pauley, COA No. 81370-6-I (May 18, 2020).

Division Three

Writs of Review. The superior court’s issuance of a writ of review is a discretionary ruling. It is unclear whether a respondent who was not provided notice prior to the issuance of the writ may file an RCW 4.12.050(1)(a) notice of disqualification. State v. Spokane County District Court (Taylor), COA No. 36506-9-III (Jun. 9, 2020).

Necessity Defense. A person engaged in civil disobedience may not assert a necessity defense when charged with violating constitutional laws. State v. Spokane County District Court (Taylor), COA No. 36506-9-III (Jun. 9, 2020). Judge Fearing dissented. [Editor’s Note: This decision conflicts with Division One’s opinion in State v. Ward, 8 Wn. App. 2d 365 (2019).]

Attempted Murder. The charging document for attempted first degree murder must include premeditation. State v. Murry, COA No. 35035-5-III (Jun. 4, 2020).

Frye Community. “[T]he relevant scientific community for purposes of a Frye analysis is not the ‘criminal forensics community,’ but, is instead the community of experts who are familiar with the use of the technique in question.” The examination of nanoparticles by a Transmission Electron Microscope is accepted in the scientific community familiar with the technology. State v. Murry, COA No. 35035-5-III (Jun. 4, 2020).

Privacy Act. A defendant’s request that the child who reported the inappropriate sexual touching state that he lied when making the disclosure does not fall within RCW 9.73.030(2)’s one-party exception to the Privacy Act for conversations “which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands.” This exception is limited to communications or conversations which convey threats of extortion, blackmail, bodily harm, or other unlawfulr requests or demands of a similar nature. The defendant’s statement was in “the nature of a request, or more aptly a plea, for a favor.” No witness may testify at trial regarding the contents of the conversation. State v. Gearhard, COA No. 36046-6-III (Jun. 4, 2020). Judge Korsmo dissented.

American Bar Association

RPC 1.18. “ A prospective client is a person who consults a lawyer about the possibility of forming a client-lawyer relationship. Model Rule 1.18 governs whether the consultation limits the lawyer or the lawyer’s firm from accepting a new client whose interests are materially adverse to the prospective client in a matter that is the same or substantially related to the subject of the consultation, even when no client-lawyer relationship results from the consultation. Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter. Whether information learned by the lawyer could be significantly harmful is a fact-based inquiry depending on a variety of circumstances including the length of the consultation and the nature of the topics discussed. The inquiry does not require the prior prospective client to reveal confidential information. Further, even if the lawyer learned information that could be significantly harmful to the prior prospective client in the new matter, the lawyer’s firm can accept the new matter if the lawyer is screened from the new matter or the prospective client provides informed consent, as set forth in Model Rule 1.18(d)(1) and (2).” Obligations to Prospective Clients: Confidentiality, Conflicts and “Significantly Harmful” Information, ABA Formal Opinion 492 (Jun. 9, 2020).

WEEKLY ROUNDUP FOR JUNE 5, 2020

United States Supreme Court

Emergency Powers and Free Exercise of Religion. California Governor Newsom’s Executive Order that restricts places of worship to 25 percent of building capacity or 100 occupants, whichever is less, is consistent with the Free Exercise Clause of the First Amendment and is entitled to deference during the pandemic. South Bay United Pentecostal Church v. Newsom, No. 19A1044 (May 29, 2020).

Washington Supreme Court

Open Letter to the Legal Community. Washington Supreme Court’s response to racial injustice.

Division Two

Public Records Act. A county cannot be liable under the Public Records Act (PRA) for not disclosing documents that are not responsive to the plaintiff’s request. The County’s letter which stated that “As you have received responsive documents, I am closing your request,” comprised a final, definitive response for purposes of RCW 42.56.550(6). The 1-year statute of limitations was not extended by the County’s post-letter release of additional records. Dotson v. Pierce County, COA No. 52561-5-II (Jun. 2, 2020).

Legal Update for Washington State Law Enforcement

The May 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR MAY 29, 2020

Washington Supreme Court

The Washington Supreme Court issued its Third Revised and Extended Order Regarding Court Operations. This order updates and supersedes the court’s April 29, 2020 order, but the changes do not impact any of the dates you have been relying on and planning around. In particular, note that provisions allowing for the continuance of certain matters until after June 1, 2020 have not been changed. Nor has the date on which courts may resume jury trials been changed – it remains July 6, 2020. This new order is based on the understanding that courts will move forward in hearing matters that have been postponed, understanding judicial discretion remains to grant continuances based on the needs of individual cases.

Division Two

Forgery. A bank account application is a “written instrument” under the forgery statute , as a bank account application initiates a contractual relationship between the bank and the depositor that, once accepted by the bank, create rights in and impose obligations on both parties. A person “falsely completes” a bank account application when s/he uses a social security number of someone else when opening the account. Legal efficacy of an instrument is a question of law for the trial court, and not a jury issue. State v. Smith, COA No. 51946-1-II (May 27, 2020).

Illinois State Bar Association

RPC 1.13. Opinion 20-02 relates to the duties of an in-house counsel when confronted with conduct that may be harmful to his or her employer. It discusses Illinois Rule of Professional Conduct 1.13 and the in-house counsel’s reporting obligations. It also covers the in-house counsel’s authority under Illinois Rule of Professional Conduct 1.13 and 1.6 to disclose confidential information outside of the entity in certain circumstances. [Editor’s note: Prosecuting attorneys have an entity as a client and are governed by RPC 1.13. Washington’s RPC 1.6, 1.9, and 1.13 are substantially the same as the Illinois rules discussed in the opinion.]

Threatening Criminal Prosecution. Opinion 20-03 addresses prohibition of a lawyer threatening criminal charges to gain an advantage in a civil matter. The opinion concludes by indicating that in a demand letter, a lawyer may accurately set forth the law, including the possibility of civil and criminal liability, as well as including a copy of the applicable statute. However, a lawyer would be prohibited from stating that criminal liability could be avoided by complying with the demand. [Editor’s note: While Washington does not have an equivalent rule to Illinois RPC 8.4(g), actions that would violate this ethics opinion would likely violate other Rules of Professional Conduct.]

WEEKLY ROUNDUP FOR MAY 22, 2020

Washington Supreme Court

RPC 1.9(a). For purposes of RPC 1.9(a) a matter is “substantially related” to another matter when there is a “substantial risk” that the attorney obtained “confidential factual information” while representing the former client that would “materially advance” a new client’s case. See RPC 1.9 cmt. 3. If the former and current representation are not factually related, they are not “substantially related” within the meaning of RPC 1.9(a). Even when a lawyer is not disqualified from representing a new client in a matter involving a former client, RPC 1.9(c) bars the attorney from using the former client’s confidences against it. Finally, the former client, who is seeking to disqualify an adverse party’s lawyer based upon RPC 1.9(a), bears the burden of establishing that the current matter is “substantially related.” Plein v. USAA Casualty Insurance Co., No. 97563-9 (May. 21, 2020).

Division Three

Mandatory Joinder. CrR 4.3.1(b)(3) was violated when the State added two additional charges that could have been filed before the first trial, following a remand for a new trial. The superior court had jurisdiction and venue over the original charges and the new charges and the new charges involved the same conduct as the original obstructing incident. State v. Canfield, COA No. 36314-7-III (May 21, 2020).

Obstructing a Public Servant. The law imposes a duty to cooperate with an arrest and makes it a crime to resist arrest. Actions that hinder an arrest short of resisting can constitute obstructing a public servant. Passive resistance to a lawful arrest can constitute obstructing by itself. The defendant’s feigning sleep when first contacted by police and his repeated refusals to obey commands provided ample support for his obstruction conviction. State v. Canfield, COA No. 36314-7-III (May 21, 2020).

Knowledge. Sufficient evidence supported the jury’s guilty verdict for possession of a stolen vehicle. The prosecutor’s closing argument, however, misstated the State’s burden to prove actual knowledge. Despite the objective definition of “knowing” under RCW 9A.08.010(1)(ii), Washington case law demands a subjective standard of knowledge when the State must prove the mens rea of “knowledge” in order to convict the accused of a crime. It is, thus, error for a prosecutor to argue that a jury can convict solely upon a “should have known” standard. State v. Jones, COA No. 36795-9-III (May 19, 2020).

Law Enforcement Digest

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The March 2020 edition of the Washington State Criminal Justice Training Commission’s Law Enforcement Digest is now available.

Arizona Supreme Court

RPC 8.4(d). A deputy prosecuting attorney’s comments to juries in capital murder cases that appealed to the fears and passions of the jury and were characterized as “prosecutorial misconduct,” violated RPC 8.4(d) even though they did not result in reversals. The prosecutor’s repeated disregard of sustained objections during closing argument also violated RPC 8.4(d). The court cautions, however, that “prosecutorial misconduct” does not always equate to ethical misconduct:

The term “prosecutorial misconduct” broadly encompasses any conduct that infringes a defendant’s constitutional rights. It sweeps in prosecutorial conduct ranging from inadvertent error or innocent mistake to intentional misconduct. . . When reviewing the conduct of prosecutors in the context of “prosecutorial misconduct” claims, courts should differentiate between “error,” which may not necessarily imply a concurrent ethical rules violation, and “misconduct,” which may suggest an ethical violation. For purposes of evaluating the merits of a “prosecutorial misconduct” claim, any finding of error or misconduct may entitle a defendant to relief, but courts should not conflate that inquiry with the collateral issue of a prosecutor’s ethical culpability.

In re Martinez, No. SB-17-0081-AP (Apr. 30, 2020).

WEEKLY ROUNDUP FOR MAY 15, 2020

Division One

Immigration Status and ER 413(a).  In a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial court erred in barring the defendant to inquire about the victim’s knowledge that a conviction would result in the defendant’s deportation.  This evidence was admissible under ER 413(a) to show bias or prejudice of the prosecution’s key witness who could avoid the expense of a dissolution and child custody battle if the defendant were deported.  The potential prejudice from this evidence could have been addressed through a limiting instruction.   State v. Bedada, COA No. 79036-6-I (May 11, 2020).

 

Division Two

Sentencing.  A defendant who received a standard range sentence may only obtain relief in a collateral attack by demonstrating that the alleged non-constitutional error is a fundamental defect resulting in a complete miscarriage of justice.  The sentencing court did not abuse its discretion by declining to consider a report regarding the drug Paxil that was prepared by a “mitigation specialist” who had no medical training or experience.  The trial court did not abuse its discretion by focusing on the objective facts rather than the competing expert positions regarding the effects of Paxil on the defendant.  In re Personal Restraint of Tricomo, COA No. 51741-8-II (May 12, 2020). 
 
Plea Agreements.  A defendant who was initially charged with first degree murder demonstrated neither deficient performance nor prejudice in a case in which defense counsel obtained a plea agreement to second degree murder that allowed the defendant to argue for a sentence below the top of the standard range.   In re Personal Restraint of Tricomo, COA No. 51741-8-II (May 12, 2020). 
 
Amendments to Collateral Attacks.  An amendment to a collateral attack that is filed after the time limitation contained in RCW 10.73.090 will not “relate back” to a timely filed collateral attack.  A new untimely claim will also not be reviewed as “part and parcel” of the timely filed claims if it rests on facts and legal theories distinct from the original claim.  Ineffective assistance of counsel claims that raise distinct complaints about the conduct of counsel that rely on distinct legal theories are not treated as a single claim.  A court does not have the inherent authority to waive the statutory time bar so as to address issues raised in untimely amendments.  In re Personal Restraint of Tricomo, COA No. 51741-8-II (May 12, 2020). 
 
WEEKLY ROUNDUP FOR MAY 8, 2020

Washington Supreme Court

“Final Judgments” and Timeliness of a Notice of Appeal. A summary judgment order resolving all substantive legal claims constitutes a “final judgment” pursuant to RAP 2.2(a)(1).  A notice of appeal, to be timely, must be filed within 30 days of such order even though the judgment reserves for future determination an award of attorney fees or costs.  See RAP 2.2(a)(1), 5.2(a). Denney v. City of Richland, No. 97494-2 (May 7, 2020).

Summary Judgment and Affirmative Defenses. A non-moving party need not create a genuine issue of material fact under CR 56(e) with respect to his or her affirmative defenses if the moving party did not move for summary judgment on the defenses.  Robbins  v. Mason County Title Insurance Co. & Retitle Ins. Co., No. 96726-1 (May 7, 2020).  Justices Madsen, Gordon McCloud, and Johnson dissented with respect to the insurance company’s duty to defend.

 

Division One

Homeless People and Their Vehicles.  The Eighth Amendment does not prohibit impounding a vehicle that serves as a home and requiring the owner to pay the associated costs.  The due process clause’s state-created danger doctrine does not create a defense to impoundment for parking violations.   An automobile that constitutes a person’s principal residence may be ticketed by a City and towed.  The person may also be required to pay for towing and storage costs and an administrative fee.  Washington’s Homestead Act, chapter 6.13 RCW, however, prohibits the City from withholding a vehicle/principle residence subject to auction unless the person pays the impoundment costs or agrees to a payment plan.  A person is not required to file a declaration of homestead for his or her vehicle/principle residence to be protected by the Act.  City of Seattle v. Long, COA No. 78230-4-I (May 4, 2020). 
 
Public Works Contracts.  The City improperly terminated the contract based upon the contractor’s violations of laws where the contractor cured the only safety breach within 15 days when it worked directly with L&I.  The City is not entitled to a set-off for allegedly defective work as the City’s termination did not give the contractor an opportunity to cure or investigate the defects.  The contractor is not entitled to an award of attorney fees because it did not make an offer of settlement.  Conway Construction Co. v. City of Puyallup, COA No. 80649-1-I (May 4, 2020).

     
Legal Update for Washington State Law Enforcement

The April 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 

Ninth Circuit

Automatic License Plate Recognition Technology.  The warrantless use of automatic license plate recognition technology to locate a rented GMC Yukon that the defendant was observed driving while stealing mail out of post office collection boxes did not violate the Fourth Amendment.  The defendant did not have a reasonable expectation of privacy in the historical state of the rental vehicle after he failed to return it by the contract due date as the rental company did not have a policy or practice of permitting lessees to keep cars beyond the rental period and simply charging them for the extra time. A concurring judge disagreed with the majority’s standing argument, but would still find no Fourth Amendment violation because the search of the database did not infringe on the defendant’s reasonable expectation of privacy because it did not reveal the whole of the defendant’s physical movements.    United States v. Yang, No. 18-10341 (9th Cir. May 4, 2020). 
 

New Jersey Appellate Division

Virtual Dating.  A “dating relationship” under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, can occur where parties never experienced a traditional, in-person “date.”  The proliferate (nearly 1300 highly personal text messages” and exceedingly intimate (i.e. sexually explicit) communications between the parties constituted a dating relationship within the meaning of the Act.  C.C. v. J.A.H., No. A-4425-18T3 (N.J. Sup. May 4, 2020). [Editor’s Note: The New Jersey Act does not define the term “dating relationship.”  Washington statutes define the term in a manner consistent with the factors that guided the New Jersey Court’s analysis.  See RCW 26.50.010(2) (“‘Dating relationship’ means a social relationship of a romantic nature. Factors that the court may consider in making this determination include: (a) The length of time the relationship has existed; (b) the nature of the relationship; and (c) the frequency of interaction between the parties.”).
WEEKLY ROUNDUP FOR MAY 1, 2020

Washington Supreme Court

Disruptive Defendants and the Right to Be Present. The trial judge did not abuse her discretion by finding that a pro se defendant, who had been warned that he would be removed from the courtroom if he continued to be disruptive, waived his right to be present when the defendant said “You can hold your trial without me,” and he refused to cease his outbursts.  Whether a disruptive defendant waives his or her right to be present will depend on the totality of the circumstances. When a disruptive defendant expresses a desire to leave the proceedings, the trial judge is not required to consider less restrictive alternatives to the defendant’s complete absence from trial.   State v. Davis, No. 96663-0 (Apr. 30, 2020).  Dissenters were Chief Justice Stephens, Justice Pro Tem Fairhurst and Justice Gordon McCloud.  The  State was represented by King County DPAs Jim Whisman, Ann Summers, and Raul Martinez.
 
Snowmobiles and Theft of a Motor Vehicle.  A snowmobile is a motor vehicle under the theft of a motor vehicle statute, RCW 9A.56.065.  Whether a device is a “motor vehicle” requires an analysis of “the device’s mechanics (is it self-propelled?) as well as the device’s function (is it capable of moving and transporting people or property on a public highway?” State v. Van Wolvelaere, No. 97283-4 (Apr. 30, 2020).  Dissenters were Justices Madsen, Johnson, Pro Tem Wiggins, and Chief Justice Stephens. The State was represented by Kittitas County DPA Carole Highland.
 
 The Washington Supreme Court recently accepted review in the following matters:
 
Consent Jury Instruction.   State v. Knapp, No. 98067-5. Benton County.  Issue: Whether a defendant who is charged with second degree rape by forcible compulsion is entitled to a jury instruction which requires the State to prove lack of consent beyond a reasonable doubt or is WPIC 18.25, which reads, “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse,” adequate.  COA opinion reported at 11 Wn. Ap. 2d 375 (2019).  The petition for review is available here
 
Derivative Use Immunity.  In re Dependency of A.M.-S., No. 98094-2.  Snohomish County.  Issue:  Does a court have the authority to grant a father in a dependency proceeding derivative use immunity for statements the father makes, or may make, during a psychological evaluation or any other court-ordered services.  COA opinion reported at 11 Wn. App. 2d 416 (2019).  The Supreme Court pleadings are available at these links:  Petition for Review   Snohomish County’s Answer to Petition for Review   AG’s Answer to Petition for Review   ACLU, et al. Amicus Curiae Brief   State – Answer to Brief of Amici Curiae
 
Bail Setting and Original Jurisdiction Over Prosecuting Attorneys.  Pimental v. The Judges of King County Superior Court, No. 98154-0.  King County.  Issues: (1) Whether in this criminal prosecution in which bail was originally set at a contested hearing at first appearance and the defendant thereafter did not violate the conditions of his release, the superior court improperly increased bail in a subsequent ex parte proceeding at the request of the prosecuting attorney, and if so, whether this court should issue a writ of prohibition prohibiting increasing bail in ex parte proceedings. (2) Whether the King County Prosecuting Attorney is a state officer for purposes of an original action for a writ of prohibition filed in the Washington Supreme Court pursuant to article IV, section 4, of the Washington State Constitution, thus permitting the exercise of jurisdiction over the prosecuting attorney.
 

Fifth Circuit

Prosecutorial Immunity.  Prosecutors are not entitled to absolute immunity for using fake “subpoenas” to pressure crime victims and witnesses to meet with them outside of court.  A prosecutors creation and use of the fake subpoenas to gather information from crime victims and witnesses outside of court is more analogous to investigative police work than advocatory conduct. When, as here, the use of fake subpoenas fall outside judicial process as their creation was an intentional means of avoiding the judicial process that state law requires for obtaining subpoenas.    Singleton v. Cannizzaro, No. 19-30197 (5th Cir. Apr. 21, 2020)
 

American Bar Association

Client Fraud.  “Model Rule 1.2(d) prohibits a lawyer from advising or assisting a client in conduct the lawyer ‘knows’ is criminal or fraudulent. That knowledge may be inferred from the circumstances, including a lawyer’s willful blindness to or conscious avoidance of facts. Accordingly, where facts known to the lawyer establish a high probability that a client seeks to use the lawyer’s services for criminal or fraudulent activity, the lawyer has a duty to inquire further to avoid advising or assisting such activity. Even if information learned in the course of a preliminary interview or during a representation is insufficient to establish ‘knowledge’ under Rule 1.2(d), other rules may require the lawyer to inquire further in order to help the client avoid crime or fraud, to avoid professional misconduct, and to advance the client’s legitimate interests. These include the duties of competence, diligence, communication, and honesty under Rules 1.1, 1.3, 1.4, 1.13, 1.16, and 8.4. If the client or prospective client refuses to provide information necessary to assess the legality of the proposed transaction, the lawyer must ordinarily decline the representation or withdraw under Rule 1.16. A lawyer’s reasonable evaluation after inquiry and based on information reasonably available at the time does not violate the rules.”  American Bar Association Standing Committee on Ethics and Professional Responsibility, Obligations Under Rule 1.2(d) to Avoid Counseling or Assisting in a Crime or Fraud in Non-Litigation Settings, Formal Opinion 491 (Apr. 29, 2020). 
 
National Lawyer Well-Being Week Begins May 4th!  “Well-being is an institution-wide responsibility. When our professional and organizational cultures support our well-being, we are better able to make good choices that allow us to thrive and be our best for our clients, colleagues, and organizations. It is up to all of us to cultivate new professional norms and cultures that enable and encourage well-being.”  An excellent collection of resources may be found at Ethical Grounds blog.
WEEKLY ROUNDUP FOR APRIL 24, 2020

Washington Supreme Court

Miranda. While a typical detention at a fixed border checkpoint will not render someone “in custody” for Miranda purposes, separating a person from the normal stream of traffic and routing them to a secondary inspection area at which the person was separated from all his belongings, had his documents confiscated, was subjected to a pat-down search, and was detained for five hours in a locked 11 x 14 foot lobby that was inaccessible to the public or other travelers will create the type of police-dominated environment that will require Miranda warnings. No bright line test, however, exists for when a person at a fixed border checkpoint is “in custody”; each case requires consideration of the totality of the circumstances. State v. Escalante, No. 97268-1 (Apr. 23, 2020). The State was represented by Stevens County Special DPA Will Ferguson.

Offender Score. A misdemeanor conviction that is dismissed pursuant to RCW 3.66.067 or RCW 3.50.320 constitutes a “conviction” under the Sentencing Reform Act. A dismissed, as opposed to a vacated misdemeanor offense, will interrupt the washout period for felony offenes. State v. Haggard, No. 97375-0 (Apr. 23, 2020). Dissenting were Justices Gordon McCloud, Yu, Montoya-Lewis, and González. State represented by King County DPA Gavriel Jacobs.

Division Two

Noxious Weed Assessment. A weed assessment is a special assessment. The County lacks the explicit authority to impose the weed assessments against the Department under chapters 17.04 RCW and 17.10 RCW. Kittitas County v. Wa. State Department of Transportation, COA No. 52329-9 (Apr. 21, 2020).

Division Three

Remote Testimony. Considerations of public policy and necessities of the case, in narrow circumstances, may preempt the right of a physical face-to-face encounter. Although two-way video testimony more closely resembles face-to-face confrontation than one-way video, two-way video is still not the equivalent of physical face-to-face confrontation. Two-way video may only be used when the trial court renders “a case-specific finding that (1) excusing the presence of the witness necessarily furthers an important public policy, and (2) the procedure otherwise assures the reliability of the testimony.”

Trial courts are encouraged to enter findings of fact when granting a request for video conference testimony. Trial courts are encouraged to require affidavits or even testimony on the phone under oath before ruling on the necessity to further an important public policy.

Outside the context of child witness cases, courts have permitted the use of video conference testimony when a witness is too ill to travel and when a witness resides outside the United States. Video conference testimony is not allowed for convenience to witness or witness’s employer, cost saving, security, or unwillingness to travel. The trial court did not satisfy the first prong because it did not explore whether someone else could care for the witness’s ill mother and/or whether the ill mother would have recovered in the near future or was terminally ill and would have died in the near future such that the court could have postponed the trial for the witness to later appear in Washington State.

When video conferencing is allowed, the trial court or the State, with the court’s concurrence, to verify on the record the structure and the mechanics of the video conference presentation. Such details should include the number and location of the video screens in the courtroom, the technology present at the location of the witness, the dimensions of the respective screens, and what sections of the witness’s body that the jury can see on the screen. The record should confirm that the jury and the defendant see the witness and the witness’s body language, and that they hear the witness. The record should also verify that the witness sees the jury and the defendant. Finally, at the conclusion of the testimony, the trial court or the State should substantiate that no errors in the transmission occurred.

State v. Sweidan, COA No. 36060-1-III (Apr. 21, 2020).

Law Enforcement Digest

The February 2020 edition of the Washington State Criminal Justice Training Commission’s Law Enforcement Digest is now available.

Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility

Working Remotely. An excellent opinion that discusses the ethics rules implicated while working at home and suggestions for satisfying the rules. “At a minimum, when working remotely, attorneys and their staff have an obligation under the Rules of Professional Conduct to take reasonable precautions to assure that: All communications, including telephone calls, text messages, email, and video conferencing are conducted in a manner that minimizes the risk of inadvertent disclosure of confidential information; Information transmitted through the Internet is done in a manner that ensures the confidentiality of client communications and other sensitive data; Their remote workspaces are designed to prevent the disclosure of confidential information in both paper and electronic form; Proper procedures are used to secure and backup confidential data stored on electronic devices and in the cloud; Any remotely working staff are educated about and have the resources to make their work compliant with the Rules of Professional Conduct; and Appropriate forms of data security are used.” Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, Ethical Obligations for Lawyers Working Remotely, Formal Opinion 2020-300 (April 10, 2020).

Board of Professional Responsibility of the Supreme Court of Tennessee

RPC 3.3 (h), 3.8(d), and 8.4(d). An assistant district attorney violated Rule 3.3(h) (candor to the tribunal, which requires an attorney to “promptly report the improper conduct to the tribunal;” and Rule 3.8(d) (special responsibilities of a prosecutor) in failing to inform opposing counsel that a sheriff investigator lied during the preliminary hearing until six months after the hearing. The delay also violated Rule 8.4(d) (prejudice to the administration of justice). In re Bryson, No. 56933-0-ES (Apr. 17, 2020). Editor’s Note: Tennessee’s RPC 3.3(h) provides that “(h) A lawyer who, prior to the conclusion of the proceeding, comes to know that a person other than the client has perpetrated a fraud upon the tribunal or otherwise committed an offense against the administration of justice in connection with the proceeding, and in which the lawyer’s client was not implicated, shall promptly report the improper conduct to the tribunal, even if so doing requires the disclosure of information otherwise protected by RPC 1.6.” Washington’s RPC has no direct counterpart, but RPC 3.3(c) would require a prosecutor to immediately notify the court and opposing counsel of such false testimony.]

WEEKLY ROUNDUP FOR APRIL 17, 2020

Washington Supreme Court

 Drug Sentencing.  If a defendant has a prior conviction for violating the Uniform Controlled Substances Act, ch. 69.50 RCW, “or under any statute of the United States or of any state relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs,” then his statutory maximum sentence is 120 months,  RCW 69.50.408(2), and the defendant must be sentenced within the standard range provided by the SRA.  Sentences for violation of RCW 69.50.410, selling heroin for profit, are controlled by the SRA.  State v. Cyr, No. 97323-7 (Apr. 16, 2020).  Lewis County DPA Sara Beigh represented the State.

 

Division Two

 Traffic Stop.  Reasonable suspicion of criminal activity or a traffic violation justified the trooper’s stop where the defendant made some jerking movements, swerved inside and outside of his lane, and crossed the left side fog line, and the defendant’s unsafe driving affected another driver, causing that driver to change lanes to avoid a possible collision.  State v. Tysyachuk, COA No. 52448-1-II (Apr. 14, 2020).
 
 Bifurcated Trials. The trial court properly denied the defendant’s motion to bifurcate the trial so the jury would only learn of his prior DUI offenses after it found him guilty of the charged offense.   Because the existence of the defendant’s prior offenses was an element of the charged crime, the trial court did not abuse its discretion in denying the motion to bifurcate and allowing the jury to hear evidence of prior offenses when deciding whether to convict him of felony DUI.  State v. Tysyachuk, COA No. 52448-1-II (Apr. 14, 2020).
 

Division Three

 Sex Offender Registration. A registered sex offender does not cease to have a “fixed residence” simply because the offender is temporarily gone from his residence for 7 to 12 days.  State v. Cathers, COA No. 36885-8-III (Apr. 14, 2020).
 

Supreme Court of Pennsylvania Middle District

 COVID-19 Emergency Orders.  Governor’s order that forced businesses to shut down as part of the state’s emergency response to COVID-19 are not entitled to compensation for the taking of property under with the Takings Clause of the Fifth Amendment or the similar provision in the Pennsyvania state constitution.  Executive Order’s restriction on holding physical meetings does not violate the First Amendment rights to free speech and assembly.  Equal protection is not violated by an Executive Order that shuts down political campaign headquarters but not legislative offices.  Failure to provide a hearing prior to entry of order that classifies various businesses as non-essential did not violate the Due Process clause.  Friend of Danny Devito v. Wolf, No. 68 MM 2020 (Apr. 13, 2020).  Partial dissent filed separately. [Editor’s note:   Detailed discussions of this opinion may be found at the Volokh Conspiracy blog – https://reason.com/volokh/ ].
WEEKLY ROUNDUP FOR APRIL 10, 2020

United State Supreme Court

Traffic Stops. When a police officer lacks information negating an inference that a person driving is the vehicle’s owner, an investigative traffic stop made after running the vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment. Kansas v. Glover, No. 18-556 (Apr. 6, 2020). [Editor’s note: This decision is consistent with existing Washington precedent.  A vehicle may be stopped based upon DOL records which indicate that the driver’s license of the  registered owner of the vehicle is suspended.  See, e.g., State v. McKinney, 148 Wn. 2d 20 (2002). The officer need not affirmatively verify that the driver’s appearance matches that of the registered owner before making the stop, but the Terry stop must end as soon as the  officer determines that the operator of the vehicle cannot be the registered owner.   See, e.g., State v. Phillips, 126 Wn. App.  584 (2005).]
 

Washington Supreme Court

Juror Compensation.  Jurors are not employees entitled to minimum wage for the purposes of the Minimum Wage Act because no employer-employee relationships exists statutorily under RCW 49.46.010(3)(d) or otherwise.  RCW 2.36.080(3), which provides that a “citizen shall not be excluded from jury service in this state on account of … economic status,” does not create an implied cause of action for disparate impact based on economic status, allowing jurors to seek increased reimbursement.  The solution for low juror pay rests with the legislature, not the courts.  Rocha v. King County, No. 96990-6 (Apr. 9, 2020).  Justices Yu and Madsen dissented in part on the grounds that “ a $10 per day reimbursement rate for juror pay systematically excludes individuals from jury service based on their economic status.”  They agree with the majority that RCW 2.36.080(3) does not create a private right of action for increased juror pay to remedy this exclusion.  Justice González dissented.   King County was represented in this case by Karen Norby, Janine Joly, Heidi  Jacobsen-Watts, and David Hackett.  Both the Washington Association of Counties and the Washington Association of County Clerks weighed in on King County’s side. 
 

Division One

Persistent Offenders.  Laws of 2019, ch. 187, § 1, which removed second degree robbery from the list of most serious offenses does not apply retroactively to defendants whose sentences were imposed for crimes committed prior to July 28, 2019, or prospectively to a case that is on appeal.  State v. Molia, COA No. 78981-3-I (Apr. 6, 2020).

Division Two

Superior Court Administrative Rule 2. Superior Court Administrative Rule (AR) 2 , which requires each new civil and domestic case filing to be accompanied by a Case Information Cover Sheet, is not jurisdictional.  A clerk’s discretionary decision under CR 5(e) to reject a pleading due to the lack of an AR 2 cover sheet cannot strip a superior court of jurisdiction.   National Parks Conservation Association v. Washington Department of Ecology, COA No. 53041-4-II (Apr. 7, 2020).
 
ER 611(c).  ER 611(c) allows a party to used leading questions on direct examination of a hostile witness, adverse party, or a witness identified with an adverse party.  ER 611(c) does not require that a party seeking to ask leading questions of an adverse party move to declare the witness hostile nor does it require a pretrial or preexamination motion to permit leading questions of an adverse party during direct examination.  A party has the unqualified right to ask leading questions of an adverse party on direct examination. Counsel cannot use leading questions during cross-examination of a party that counsel represents unless the trial court finds a specific reason to permit leading questions.  Frantom v. Hanson, COA No. 52007-9-II (Apr. 7, 2020). 
 
Restoration of Firearm Rights.  The juvenile courts, as a division of the superior court, is a “court of record” under RCW 9.41.040(4)(b).  RCW 9.41.040(4)(b) authorizes an individual who lost his or her rights to possess firearms due to a juvenile court adjudication to file a petition to restore his or her right to possess a firearm under the juvenile court cause numbers even though the individual is no longer a juvenile. Regardless of the limits of the juvenile court’s statutory jurisdiction, the superior court has jurisdiction to consider the petitions filed by such individuals under the juvenile court cause numbers.  State v. Burke, COA No. 51979-8-II (Apr. 7, 2020).
 
Entrapment and Attempted Sex Offenses.  Defendant whose convictions for (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes, that stemmed from his responding to a law enforcement created posting in the Craiglist casual encounters section was not entitled to an entrapment jury instruction.  Law enforcement merely afforded the defendant with an opportunity to commit a crime.  The State’s inability to show the defendant had a predisposition to commit crimes against children does not satisfy the defendant’s evidentiary burden for an entrapment jury instruction.  State v. Johnson, COA No. 51923-2-II (Jan. 28, 2020, publication ordered Apr. 7, 2020).
 
Same Criminal Conduct.  Attempted second degree rape of a child, attempted commercial sexual abuse of a minor, and communication with a minor for immoral purposes do not involve the same criminal intent.  All three convictions are counted as separate offenses when calculating the defendant’s offender score.  State v. Johnson, COA No. 51923-2-II (Jan. 28, 2020, publication ordered Apr. 7, 2020).
 
Community Custody Conditions.  The trial court’s order that the defendant “not use or access the World Wide Web unless specifically authorized by CCO through approved filters,” is constitutional in a case in which the defendant was convicted of attempting to entice a minor to engage in sexual acts through the internet.  State v. Johnson, COA No. 51923-2-II (Jan. 28, 2020, publication ordered Apr. 7, 2020).
 
Animal Cruelty.  RCW 16.52.207(2)(a), which provides that a person is guilty of second degree animal cruelty for “fail[ing] to provide the animal with necessary shelter, rest, sanitation, space, or medical attention” and causing unnecessary pain as a result, provides only a single means of committing the crime of second degree animal cruelty.  The five listed terms are merely different ways of committing that single means. State v. Roy, COA No. 52278-1-II (Apr. 7, 2020). 
 

Legal Update for Washington State Law Enforcement

The March 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR APRIL 3, 2020

Washington Supreme Court

Summary Judgment.  A trial court cannot grant summary judgment conditioned on the jury finding particular facts.  Summary judgment is appropriate only when there are no genuine issues of material fact.  Ehrhart v. King County, No. 96464-5 (Apr. 2, 2020). 
 
Public Duty Doctrine.  The public duty doctrine involves questions of duty, not discretion.  The public duty doctrine is separate and distinct from the discretionary immunity doctrine.   Ehrhart v. King County, No. 96464-5 (Apr. 2, 2020). [Editor’s Note: This case contains an extended discussion of the public duty doctrine and provides a roadmap for analyzing each of the exceptions to the doctrine.  A must read for all attorneys involved in tort litigation.] 
 
Health Advisories.  The regulation governing a county’s responsibility to issue health advisories, WAC 246-101-505, does not create a duty to individual persons as opposed to a nonactionable duty owed to the public as a whole.   Ehrhart v. King County, No. 96464-5 (Apr. 2, 2020).

 The Court accepted review of the following cases this week:
 
Indian Child Welfare Act.   In the Matter of the Dependency of Z.J.G. & M.E.J.G., No. 98003-9.  When must the petitioner in a dependency action provide notice to a tribe that the action may involve an Indian child?  Petition for review pleadings  available here.
 
Juveniles and Manifest Injustice Dispositions.  State v. D.L., No. 96143-3.  Whatcom County.  Whether “due process requires notice before entry of a juvenile guilty plea of the potential aggravating factors that could support a manifest injustice disposition?” 
 

Division One

Vulnerable Adult Protection Orders.  The trial court has discretion to deny a motion to vacate a Vulnerable Adult Protection Order (VAPO) that was obtained by DSHS when a vulnerable adult who has not been adjudicated fully incapacitated applies to the court for modification or vacation of the VAPO.  DSHS may participate in the hearing on the motion to vacate the VAPO even though the vulnerable adult withdrew his consent to receive Adult Protective Services.  When DSHS files a petition for a VAPO, the court may not order the respondent to pay the attorney fees of the vulnerable adult’s independent counsel.   In re Winter, COA No. 76465-9-I (Mar. 30, 2020).
 
Pro se Litigants.  Pro se litigants are held to the same standards as attorneys.  Clerk’s dismissal of a pro se litigant’s appeal for failing to timely file an opening brief was proper where the clerk provided the litigant with the notice required by RAP 18.9(b).   In re Winter, COA No. 76465-9-I (Mar. 30, 2020).  
 
Summary Contempt.  A criminal defendant who responded inappropriately to the judge when the judge chided him for making an inappropriate reference to the prosecutor’s personal appearance was properly found in contempt.  The 30-day sanction, however, must be vacated and the matter remanded for a new hearing on the appropriate sanction because the defendant was not provided with his statutory right to speak in mitigation.  State v. Dennington, COA No. 79160-5-I (Mar. 30, 2020). 
WEEKLY ROUNDUP FOR MARCH 27, 2020

United States Supreme Court

Insanity Defense.  The United States Constitution’s Due Process Clause does not require a state to wholly exonerate a defendant on the ground that his mental illness prevented him from recognizing his criminal act as morally wrong.  Kahler v. Kansas, No. 18-6135 (Mar. 23, 2020).  [Editor’s Note: Although the federal Due Process Clause has been held to be coextensive with article I, section 3 of the Washington Constitution this case is unlikely to have much effect in Washington as the 1910 case of State v. Strasburg, 60 Wash. 106 (1910), held that both the state dues process clause and the constitutional right to a jury bars the legislature from eliminating the defense of insanity.]
 

Washington Supreme Court

RAP 2.5(a).  While RAP 2.5(a) grants an appellate court may consider an issue not preserved for appellate review by the parties, the appellate court must discuss RAP 2.5 or provide an indication of why it is reaching the issue in its opinion.   Fireside Bank v. Askins, No. 96853-5 (Mar. 26, 2020).  
 

Division One

Restraints and Pre-Trial Detainees.  Jail transport officers do not have a mandatory duty to remove a defendant’s restraints during non-jury criminal hearings.  Transport officers only have a suty to remove restraints when ordered to do so by the court.   Trenary v. Gonsalves, COA No. 79426-4-I (Mar. 23, 2020). 
 

Writs of Mandamus.  Pretrial detainees who are unhappy with the sheriff’s restraint policy have a plain, speedy and adequate remedy in the ordinary course of law to challenge the policy.  Trial court, therefore, erred in granting a writ of mandamus.   Trenary v. Gonsalves, COA No. 79426-4-I (Mar. 23, 2020). 

GR 37 and Jury Selection.  An appellate court review a trial court’s denial of a peremptory challenge de novo.   Trial court properly rejected defendant’s peremptory challenge to a prospective juror who appeared to be of Asian descent, as none of the challenged juror’s responses were controversial or reflected bias one way or another and an objective observer could view race as a factor in the use of the peremptory challenge.  The defendant’s nebulous justifications for the peremptory strike that he “just didn’t like some of [Juror 16’s] responses” and that “he felt uncomfortable about the way she was responding” may serve to mask the defendant’s conscious or unconscious racism.  State v. Omar, COA No. 78751-9-I (Mar. 23, 2019).

 
Defendant’s Right to Testify.  A trial judge does not need to conduct a formal colloquy to inquire whether a defendant understands his right to testify under the United States Constitution and the Washington Constitution.  A trial judge is not required to obtain a personal on-the-record  affirmative waiver of the right to testify from the defendant.  State v. Lee, COA No. 79094-3-I (Feb. 18, 2020, publication ordered Mar. 23, 2020).

Unanimity Jury Instruction.  The trial court did not err by failing to instruct the jury that its verdict must be unanimous as to the acts constituting the charged offenses of assault and rape as the prosecutor made an election during closing argument as to the acts that constituted the assault charged in count 2 and in count 3, and the defendant’s various acts of forced sexual contact constituted a single continuous course of conduct.  State v. Lee, COA No. 79094-3-I (Feb. 18, 2020, publication ordered Mar. 23, 2020).
 
Double Jeopardy.  Convictions for rape and assault does not violate the constitutional prohibition against double jeopardy because the defendant did not establish that the offenses are the same “in fact.” Actions apart from the strangulation that supported the assault convictions could independently establish forcible compulsion for the rape conviction.   State v. Lee, COA No. 79094-3-I (Feb. 18, 2020, publication ordered Mar. 23, 2020).
 
Conditions of Community Custody.  Three community custody conditions imposed upon a defendant who was convicted of assaulting and raping a romantic partner are crime related and not overbroad or unnecessary.  The defendant is (1) required to disclose his offender status prior to any sexual contact, (2) prohibited from having “sexual contact in a relationship” until a treatment provider approves, and (3) required to complete a Moral Reconation Therapy (MRT) program to receive cognitive behavioral therapy.    State v. Lee, COA No. 79094-3-I (Feb. 18, 2020, publication ordered Mar. 23, 2020).
 
Judicial Recusal.  Due process clause requires a judge to recuse himself from a termination hearing where the judge previously served as the Assistant Attorney General for the department who sought termination of the parent’s rights as to her two older children.  In re Dependency of A.N.G., COA No. 80004-3-I (Mar. 23, 2020). 


Ninth Circuit

Prosecutor Ethics.  Defendant was not entitled to any relief based upon an Assistant United States Attorney’s (ASUA) “disregard of elementary prosecutorial ethics,” as evidenced by his involvement in the early stages of the investigation despite his personal and financial interest in the outcome of the case, and his continuing to express an interest even after his office recused itself from the matter, solely because as soon as the Department of Justice (DOJ) became aware of the impropriety, it took every necessary step to cure any resulting taint.  DOJ recused the rogue ASUA’s entire office and  reassigned the matter to another office that had no contact with the first office and that independently whether and how to charge the defendant.  The court also denied relief on a claim that the defendant was entitled to a new trial based upon a belatedly disclosed romantic relationship between the FBI special agent in charge of the investigation and an ASUA in the second office.   United States v. Miller, No. 17-50338 (9th Cir. Mar. 20, 2020).
 

American Bar Association

Collection of Legal Financial Obligations.  Formal Opinion 490 “addresses the ethical requirement of judges under the Model Code of Judicial Conduct, Rules 1.1 and 2.6, to undertake a meaningful inquiry into a litigant’s ability to pay court fines, fees, restitution, other charges, bail, or civil debt before using incarceration as punishment for failure to pay, as inducement to pay or appear, or as a method of purging a financial obligation whenever state or federal law so provides. Meaningful inquiry is also required by Rules 1.2, 2.2, and 2.5 as a fundamental element of procedural justice necessary to maintain the integrity, impartiality, and fairness of the administration of justice and the public’s faith in it. According to the same Rules, a judge may not set, impose, or collect legal financial obligations under circumstances that give the judge an improper incentive either to multiply legal financial obligations or to fail to inquire into a litigant’s ability to pay. The opinion also discusses innovative guidance on best practices for making ability to pay inquiries, including model bench cards, methods of notice, and techniques for efficiently eliciting relevant financial information from litigants.”  American Bar Association, Ethical Obligations of Judges in Collecting Legal Financial Obligations and Other Debts, Formal Opinion 490 (Mar. 24, 2020).
WEEKLY ROUNDUP FOR MARCH 20, 2020

Washington Supreme Court

Duress and Aggravated First Degree Murder.  A defendant who is charged with aggravated first degree murder based on the aggravating circumstance that the murder was committed in the course of a kidnapping, RCW 10.95.020(11)(d), is not entitled to assert a duress defense to the kidnapping aggravator.  State v. Whitaker, No. 9677706 (Mar. 19, 2020).  Justices Madsen, Wiggins and Gordon McCloud would hold that duress is available as a defense to the kidnapping aggravator but that the facts of this case did not warrant a duress instruction.  The State was represented by Snohomish County DPA Kathy Webber.
 
County Clerks.  When the county clerk is acting as the clerk of the superior court, i.e. performing in-court duties, s/he largely lacks autonomy and must follow the court’s rules.  When actins as county clerk, i.e. performing out-of-court duties, however, s/he is independent from the court and accountable to the people.  Judges of Benton & Franklin Counties Superior Court  v. Killian, No. 96821-7 (Mar. 19, 2020).  Clerk Killian was represented by Franklin County Special DPA Pam Loginsky.  WSAC amicus brief was authored by Kitsap County DPA Jacquelyn Aufderheide.   
 
Court Records.  While the county clerk may not refuse to provide court documents to judges upon request, the clerk, not superior court judges, get to determine the format in which court documents are maintained.  Judges of Benton & Franklin Counties Superior Court  v. Killian, No. 96821-7 (Mar. 19, 2020).  Clerk Killian was represented by Franklin County Special DPA Pam Loginsky.  WSAC amicus brief was authored by Kitsap County DPA Jacquelyn Aufderheide. 
Mandamus.  Judges who are in a dispute with someone should not use their rule making authority to resolve the dispute in their favor, and then seek a writ of mandamus to compel compliance with the rule.  Instead, the judges should seek a declaratory judgment to settle the dispute.  Judges of Benton & Franklin Counties Superior Court  v. Killian, No. 96821-7 (Mar. 19, 2020).    
 

Division One

DUI and Opinion Evidence. A police officer, who is not a DRE, may not opine that a driver was showing signs of being impaired by a stimulant or that the driver was impaired by drugs at the time of an accident.   City of Seattle v. Levesque, COA No. 78304-1-I (Mar. 16, 2020). 
 
Preservation of Evidentiary Error.  A party must object at trial to testimony that violates a motion in limine in order to preserve the error for appeal.   City of Seattle v. Levesque, COA No. 78304-1-I (Mar. 16, 2020).  
 

Division Three

Character Evidence and Specific Instances of Bad Conduct.  In a telephone harassment prosecution the trial court properly admitted pursuant to ER 404(b) prior act evidence of the defendant for the purpose of explaining why the victim reasonably feared that the defendant would carry out her telephone threats.  The trial court properly excluded defense witnesses who would have impeached the victim by testifying to misconduct that the victim allegedly engage in as such evidence is barred by ER 608(b). The defendant was welcome to cross-examine the victim regarding his character for truthfulness by referencing specific instances of misconduct, but if the victim denied the misconduct, the defendant is required to accept the victim’s answer. The trial court properly excluded defense witnesses who would have “rebutted” the ER 404(b) testimony as they were not present during the specific instances and they had not been together with the defendant and the victim with sufficient regularity that they likely would have been present during any alleged acts of violence.   State v. Riley, COA No. 36169-1-III (Mar. 17, 2020). Judge Fearing dissented.   [Editor’s note: Judge Pennell is creating a reputation for authoring opinions that clearly and comprehensively address evidentiary issues.   This is a must read opinion for every trial attorney!]

Ohio Supreme Court

Prosecutor Discipline.  Part-time prosecutor suspended from the practice of law for six months for misleading the court as to the reason for reducing charges in a DUI case and making a false notation in the case notes section of the prosecutor’s file regarding the reason for reducing the charge.  Rules violated were RPC 3.3(a), RPC 8.4(c), and RPC 8.4(d).  He also lost his job as a part-time prosecutor.  Disciplinary Counsel v. Spinazze, No. 2020-Ohio-957 (Mar. 17, 2020).
WEEKLY ROUNDUP FOR MARCH 13, 2020

Division Two
ER 609.  Unlawful possession of a firearm conviction has no probative value regarding a defendant’s truthfulness.  Admission of such a conviction for impeachment purposes are prejudicial because they indicate that there is a reason why the defendant was precluded from possessing a firearm and they suggest that the defendant is dangerous.  State v. Jones, COA No. 52251-9-II (Mar. 10, 2020).

 

Division Three

Instructional Error. A defendant does not invite an instructional error by failing to object to an instruction. A challenge to an instruction that omits an essential element of the crime may be asserted for the first time on appeal.  The proper remedy when a jury instruction omits an element of the greater charged crime, but includes every element of a lesser crime, is a reversal of the conviction and remand for a new trial.  State v. Richardson, COA No. 36035-1-III (Mar. 10, 2020).
 
Confrontation Clause.  Statements made by a non-testifying co-conspirator is non-testimonial hearsay when made in furtherance of a conspiracy, i.e. while planning a crime or committing the crime.  State v. Richardson, COA No. 36035-1-III (Mar. 10, 2020).
 

Contempt.  A person’s in-court admission of non-compliance with prior court orders does not authorize a judge to impose summary contempt sanctions pursuant to RCW 7.21.050.  Sanchez v. Rose, COA No. 36279-5-III (Mar. 10, 2020).

Legal Update for Washington State Law Enforcement
The February 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

 

Ninth Circuit

Firearms and Mentally Ill Persons.  As-applied Second Amendment challenge to 18 U.S.C. § 922(g)(4), which prohibits this defendant from possessing firearms due to his involuntary commitment in 1999 to a mental health institution for more than nine months after a Washington state court found the defendant to be both mentally ill and dangerous, fails despite the defendant’s alleged return to mental health and peaceableness and a state court order issued pursuant to RCW 9.41.047(3)(c), that restored the defendant’s rights under state law to possess a firearm. The prohibition on the possession of firearms by persons whom a state court has found to be both mentally ill and dangerous is a reasonable fit with the government’s indisputably important interest in preventing gun violence.  Scientific evidence, moreover, supports the congressional judgment that those who have been committed involuntarily to a mental institution still pose an increased risk of violence even years after their release from commitment. Mai v. United States, No. 18-36071 (9th Cir. Mar. 11, 2020).
WEEKLY ROUNDUP FOR MARCH 6, 2020

Washington Supreme Court

This week, the Supreme Court granted review of the following case:
 
LUPA.  Confederated Tribes & Bands of the Yakama Nation v. Yakima County, No.97910-3.  Yakima County.  Issue: “Where RCW 36.70C.040(4) provides three specific starting points for the 21-day statute of limitations, and where Yakima County codified one of those starting points to apply to all appeals of its land use decisions for purposes of Chapter 36.70C RCW, did the Court of Appeals err in overruling Yakima County Code and applying a different starting point for the statute of limitations to the Yakama Nation’s appeal of a Yakima County land use decision?” COA opinion is unpublished.  The petition for review is available on line.
 

Division One

Environmental Crimes: Hazardous Waste Management Act.  The prosecution is not required to prove that a defendant knew that his actions violated State law to prove a violation of environmental crimes.   The prosecution must, however, prove that the defendant knew there was an imminent danger of harm to the natural resources of the state at risk.  Evidence that the defendant knew he was storing various hazardous and dangerous wastes on his property in decrepit containers, without the necessary permits, and how water flows onto and off of the land is sufficient to support a conviction for violating RCW 70.105.085.  State v. Pillon, COA No. 78599-1-I (Jan. 27, 2020, publication ordered Mar. 2, 2020).
 
Constitutional Right to Present a Defense and Character Evidence.  The defendant’s right to present a defense is subject to the rules of evidence.  Testimony of defense witnesses regarding the defendant’s past efforts to abate criminal activity in the neighborhood was properly excluded as irrelevant to the determination of whether the defendant, in 2015 to 2016, knowingly engaged in conduct that placed the natural resources of the State in imminent harm.  State v. Pillon, COA No. 78599-1-I (Jan. 27, 2020, publication ordered Mar. 2, 2020).
 
Judicial Questioning in Criminal Cases.  While a judge has broad discretion to question witnesses in a bench trial, the judge cannot take charge of a party’s case or become a clear partisan.  The judge did not violate the defendant’s right to a fair trial by posing two clarifying questions to two expert witnesses.     State v. Pillon, COA No. 78599-1-I (Jan. 27, 2020, publication ordered Mar. 2, 2020).
 

Division Two

Persistent Offenders and Second Degree Robbery.  The 2019 amendment to RCW 9.94A.030(33) removing second degree robbery from the list of offenses that qualify as strike offenses under the Persistent Offender Accountability Act does not impact sentences for crimes committed prior to July 28, 2019.  Both RCW 9.94A.345 and RCW 10.01.040 require a defendant to be sentenced under the law in effect when he committed the offense.  State v. Jenks, COA No. 52450-3-II (Mar. 3, 2020).
 

Law Enforcement Digest

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests.  The online training sessions are of high quality and are applicable to prosecuting attorneys.   The December 2019 and January 2020 editions are now available on line.            


National Alliance on Mental Illness

Mental Illness or Intellectual and Developmental Disabilities. Individuals with intellectual and developmental disabilities (I/DD) or mental illness are overrepresented in the criminal justice system, as victims, witnesses, suspects, and defendants. In an effort to inform prosecutors’ strategies when working with these individuals, Prosecutors’ Center for Excellence (PCE), in collaboration with the Arc and NAMI, has developed a guide that includes the following information: (1) An overview of I/DD and mental illness and the legal obligations involved when interacting with people with I/ DD or mental illness; (2) Practical approaches for prosecutors to more effectively work with these populations, as victims, witnesses, or defendants; and (3) Examples of programs that prosecutors have either created or participated in that address the involvement of persons with I/DD or mental illness in the criminal justice system.   National Alliance on Mental Illness, Victims, Witnesses, and Defendants with Mental Illness or Intellectual and Developmental Disabilities: A Guide for Prosecutors (Feb. 2020).
 

Attorney Well-Being

The Illinois Supreme Court Commission on Professionalism has just released a 30-minute interactive eLearning that is designed to inform attorneys regarding the extent of the well-being crisis in the legal profession, identifying potential symptoms of stress, and provide strategies to help maintain well-being.  The Busy Lawyer’s Guide to Well-Being Course is available here.  The same committee offers other classes, including The Resilient Lawyer Course.
WEEKLY ROUNDUP FOR FEBRUARY 28, 2020

Washington Supreme Court

Collateral Attacks. A personal restraint petition (“PRP”) does not become final until the date upon which the certificate of finality is issued.  Phongmanivan v. Haynes,  No. 96980-9 (Feb. 27, 2020).  Justice Madsen authored a concurring opinion “to acknowledge the State’s commonsense argument concerning the finality of personal restraint petitions.”  State represented by AAGs Alex Kostin and Mandy Rose.
 
School Bus Route Stops.  A charging document alleging the statutory enhancement for delivering controlled substances within a protected zone under RCW 69.50.435(1)(c), that used the phrase “within one thousand feet of a school bus route,” instead of the statutory language of “within one thousand feet of a school bus route stop,” did not provide constitutionally adequate notice of the enhancement.  State v. Hugdahl, No. 97148-0 (Feb. 27, 2020).  Justices Stephens, Yu, and Madsen dissented. State represented by Kittitas County Prosecuting Attorney Greg Zempel.

Double Jeopardy and Jurisdiction. Jurisdiction is not an essential element of every crime but, rather, is the power of the court to hear and determine a case. When, however, the trial court substantively treats jurisdiction as an essential element of the crime, the dismissal for failure to prove jurisdiction was no different than if jurisdiction were actually an essential element. Here, the trial court judicially acquitted the defendant when it dismissed the case against him, and double jeopardy barred the State’s appeal from the district court and prohibits retrial of the defendant on these charges. State v. Karpov, No. 95080-6 (Feb. 27, 2020).  Justices Gordon McCloud, Yu, Owens, and Fairhurst concurred on the double jeopardy issue, while indicating that the discussion of jurisdiction is nonbinding dicta. State represented by Spokane County DPAs Brian O’Brien, Patrick Schaff, and Samuel Comi.

 

Division One

CrR 7.8(b)(5) New Sentencing Hearings.  The State does not have the right to appeal an order granting a CrR 7.8(b)(5) motion granting a new sentencing hearing to consider the characteristics of youth at the of the offense.  The State has the right to appeal only if following the hearing, the court decides to vacate and amend the judgment and sentence.  State v. Waller, COA No. 79793-0-I (Feb. 24, 2020).
 
Public Works. Case explains what actions by a government body starts the 30- or 45-day period for filing claims against the retainage fund and the performance bond. State Construction, Inc. v. Hartford Fire Insurance, COA No. 78753-5-I (Jan. 13, 2020, publication ordered Feb. 19, 2020).
 

Division Two

Shelter Care Hearings.  The juvenile court lacks the discretion to set a shelter care hearing beyond 72 hours of the child’s removal.  The court has an express duty to hold a shelter care hearing within the statutory time frame.  The hearing may be continued only when, for good cause, a parent is unable to attend the hearing, and even then, only on the parents’ request.   In re the Dependency of T.P., COA No. 52928-9-II (Feb. 25, 2020).
 

Second Circuit

DOJ Administered Grants.  The federal government may deny grants of money to State and local governments that would be eligible for such awards but for their refusal to comply with three immigration-related conditions imposed by the Attorney General of the United States.  Those conditions require grant applicants to certify that they will (1) comply with federal law prohibiting any restrictions on the communication of citizenship and alien status information with federal immigration authorities, see 8 U.S.C. § 1373; (2) provide federal authorities, upon request, with the release dates of incarcerated illegal aliens; and (3) afford federal immigration officers access to incarcerated illegal aliens. The district court mandate ordering DOJ to release withheld 2017 Byrne funds, as well as its injunction barring defendants from imposing the three challenged immigration-related conditions on such grants is vacated.  State of New York v. United States Dep’t of Justice, No. 19-267(L) (2nd Cir. Feb. 26, 2020). [Editor’s Note:  Washington state was a party to this case.  This opinion conflicts with opinions issued by three other circuits – City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019) (ruling as to Notice and Access Conditions); City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019) (ruling as to all three conditions); City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (ruling as to Notice and Access Conditions), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018
WL 4268817 (7th Cir. June 4, 2018) (vacating nation-wide injunction), reh’g grant vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018).]
 

New Jersey Appellate Division

Records Checks and Jurors.  The State’s performing of a criminal background check on the one Black juror it unsuccessfully sought to exclude for cause, followed by the juror’s arrest on an unverified municipal warrant that resulted in the juror’s exclusion, violated the spirit of Batson.  Murder conviction vacated and matter remanded for new trial, with court stating that “The compulsion to appear should not include the threat of arrest if we seek to convincingly assure the citizenry that jury service is an honor and a duty. Record checks run because of dissatisfaction with a judge’s ruling, as was done here, undermine the framework within which the trial proceeds and alters the court’s exclusive province in administration of the jury venire.”   State v. Andujar, No. A-0930-17T1 (Feb. 24, 2020).
 

Pennsylvania Supreme Court

Subpoenaing Defense Counsel.  Chief criminal prosecutor suspended from the practice of law for one year and one day for subpoenaing, without prior judicial approval, an attorney to appear before a grand jury investigating criminal activity so that the attorney/witness can be compelled to provide evidence concerning a person  who is or has been represented by the attorney/witness.  Office of Disciplinary Counsel v. Fina, No. 166 DB 2017 (Feb. 19, 2020). [Editor’s Note: Washington RPC 3.8(e)  places some, but not all of the restrictions upon prosecutors as present in Pennsylvania’s RPC 3.10 with respect to subpoenaing defense counsel.  Washington’s rule does not require prior judicial approval.  A prudent prosecutor, however, might choose to litigate issues regarding privilege prior to questioning the attorney/witness.]
WEEKLY ROUNDUP FOR FEBRUARY 21, 2020

Washington Supreme Court

First Aggressor Instructions.  First aggressor instructions are not broadly disfavored; they are disfavored only where they are not justified.  To determine whether first aggressor instructions are justified, appellate courts should apply ordinary standards of review, which require a case-by-case inquiry based on the specific evidence produced at trial.  When the defendant engages in a course of aggressive conduct, rather than a single aggressive act, the provoking act can be part of a single course of conduct.  State v. Grott, No. 97183-8 (Feb. 20, 2020).  State represented by Pierce County DPAs  Jesse Williams, Kristie Barham, and Theodore Cropley.
 
RAP 2.5 and First Aggressor Jury Instructions. Because first aggressor instructions do not actually relieve the State of its burden of proof, erroneously given first aggressor instructions are not necessarily errors of constitutional magnitude for puiposes of RAP 2.5(a)(3). When the first aggressor instruction holds the State to its burden of proof by requiring the jury to “find beyond a reasonable doubt that the defendant was the aggressor, and that defendant’s acts and conduct provoked or commenced the fight,” an error in tendering the instruction is not of constitutional magnitude.  Unless there is a basis to conclude that the trial court should have sua sponte rejected the State’s proposed first aggressor jury instruction, the giving of the instruction is not “manifest error.”  State v. Grott, No. 97183-8 (Feb. 20, 2020).  State represented by Pierce County DPAs Jesse Williams, Kristie Barham, and Theodore Cropley.
 

RAP 2.5 and Manifest Error. “Manifest constitutional error” is not the same as “harmless error.”  Harmless error analysis occurs after the court determines the error is a manifest constitutional error and is a separate inquiry.  The burden of establishing “manifest error” is borne by the defendant, who must make a plausible showing that the asserted error had practical and identifiable consequences in the trial of the case.   State v. Grott, No. 97183-8 (Feb. 20, 2020).  State represented by Pierce County DPAs Jesse Williams, Kristie Barham, and Theodore Cropley.

Division One

Declination.  Defendant, who was 15-years-old at the time of the crime and who pled guilty to murder in the second degree after the juvenile court granted a discretionary decline, is entitled to a new hearing on whether declination was appropriate due to the juvenile court’s failure to rule on the defendant’s claim that the decline proceeding was improperly influenced by implicit or explicit racial bias.   State v. Quijas, COA No. 7891-5-I (Feb. 18, 2020).
 
Stalking.  The phrase “under circumstances not amounting to a felony attempt of another crime,” RCW 9A.46.110(1), is not an essential element of stalking. That language merely signals that the legislature does not intend for circumstances amounting to both stalking and some other felony attempt to lead to punishment for both crimes.  A prosecutor, however, may still charge a defendant with both stalking and some other felony attempt.  The phrase “felony attempt” does not render the stalking statute unconstitutionally vague.  The trial court properly allowed the victim to testify about threats and concerns others communicated to her, to show their effect on the victim.  The testimony was relevant to whether the victim’s fear of injury was reasonable.  That the evidence is strong and unfavorable does not mean that it is unfair or unduly prejudicial.  A conviction for stalking does not require evidence that the defendant was actually violent or threatened actual violence.   State v. Heutink, COA No. 78033-6-I (Feb. 18, 2020).
 
Guardian Ad Litems.  A court’s failure to either appoint a guardian ad litem or to make a good cause finding that such an appointment is unnecessary in a dependency proceeding, will generally compel a remand for a hearing to determine whether the child was prejudiced.  In re Dependency of S.M.M., COA No. 79740-9-I (Feb. 18, 2020).
 

LUPA.  A City’s decision on how and when a builder may connect to its water system is a decision the city makes as an owner of public property.  As such, it is not a “land use decision” that falls within subsection (a) of RCW 36.70C.020(2).  Such a decision also falls outside of RCW 36.70C.020(2)(b)’s “interpretive decision” provision, which is limited to the question of whether a specific code applies or does not apply to a project.  The phrase “declaratory judgment” in subsection (b) is similarly limited to a determination that simply declares that certain city ordinances or rules are applicable to the property.  Pioneer Square Hotel Company v. City of Seattle, COA No. 80000-1-I (Feb. 18, 2020).

Division Three

Search Warrants and Cell Phones.  A search warrant that authorizes police to seize a cell phone is insufficient to allow police to search the cell phone. A search of a lawfully seized cell phone requires a second search warrant that identifies with particularity the types of data to be seized with sufficient detail to distinguish material for which there is probable cause from information that should remain private.  “For example, in addition to identifying the crime under investigation, the warrant might restrict the scope of the search to specific areas of the phone (e.g., applications pertaining to the phone, photos, or text messages), content (e.g., outgoing call numbers, photos of the target and suspected criminal associates, or text messages between the target and suspected associates) and time frame (e.g. materials created or received within 24 hours of the crime under investigation). It might also require compliance with a search protocol, designed to minimize intrusion into personal data irrelevant to the crime under investigation.”  State v. Fairley, COA No. 35616-7-III (Feb. 18, 2020).  Judge Korsmo dissented.
 
WEEKLY ROUNDUP FOR FEBRUARY 14, 2020

Washington Supreme Court

Article II, Section 37.  Article II, section 37 of the Washington provides that “[n]o act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.” Two questions must be answered when addressing a challenge under this provision: (1) whether the statute is a “complete act,” such that the rights or duties under the statute can be understood without referring to another statute; and (2) whether a straightforward determination of the scope of rights or duties under the existing statutes would be rendered erroneous by the new enactment. The MVET statute, RCW 81.104.160(1), is a complete statute that specifically  sets out which depreciation schedule, which are adopted by reference, applies to which time periods.  Reference statutes are not limited to referring to current statutes and may refer to external sources.  The MVET statute’s “notwithstanding” language reflects the impact the statute has on existing laws.  Black v. Central Puget Sound Regional Transit Authority, No.  97195-1 (Feb. 13, 2020). Justices Gordon McCloud and Stephens dissented.


Division One

Sufficiency of the Evidence and Indecent Exposure.  Substantial evidence supported the findings of fact in support of the “open and obscene exposure” element where the witness stated that she saw the defendant’s hand by his genitals, moving rapidly back and forth.  Witness did not have to actually see that the defendant’s penis was outside of his pants while the defendant was masturbating.   State v. Stewart, COA No. 78846-9-I (Feb. 10, 2020).  Judge Dwyer authored a concurring opinion in which he forcefully and correctly claims that the sufficiency of the evidence test set forth by the Washington Supreme Court in State v. Hoffman, 181 Wn.2d 102 (2014), conflicts with the test announced by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). 
 
CrRLJ 8.3(b) and Court Mismanagement.  A trial court judge may dismiss a criminal prosecution with prejudice due to the court’s failure to arrange for an interpreter for all scheduled court hearings.  State v. Jieta, COA No. 77800-5-I (Feb. 10, 2020).
 
CR 11 Sanctions.  Plaintiffs’ lawyers were properly sanctioned for filing a motion under RCW 9.72.090, which alleged that one of the police officers in the wrongful death action had committed perjury during a deposition and which requested that the trial court refer the matter to the appropriate prosecuting attorney’s office.  The motion, which the lawyers filed with the court and provided to the media prior to serving defendants on the one-year anniversary of the shooting, lacked good faith arguments and served no purpose other than to harass the defendant, generate media attention, inflame the public, and to interfere with the defendant’s right to a fair trial.  The trial court did not err in determining that plaintiffs’ lawyer’s interactions with the media violated RPC 3.6, and in considering this fact with respect to whether the motion was filed for an improper purpose.    Koehler v. City of Seattle, No. 78819-1-I (Dec. 30, 2019, publication ordered Feb. 10, 2020).
 
Perjury.  Plaintiffs’ expert’s opinion based upon a synchronized video is insufficient to support a perjury prosecution, particularly in the absence of evidence that the witness did not know his answers were not the truth. RCW 9.72.090, which authorizes a judge or other officer to act upon evidence presented at a hearing that a person has committed perjury or offered false evidence, does not extend to depositions or other sworn testimony that occurs outside of the judicial officer’s presence.   RCW 9.72.090 does not provide an avenue by which a party may bring a motion to exclude evidence.   Koehler v. City of Seattle, No. 78819-1-I (Dec. 30, 2019, publication ordered Feb. 10, 2020).
 
Synchronized Video.  Synchronization of videos is not a novel science that is subject to a Frye challenge.  A technician’s use of redacted or copies of videos rather than original footage goes to the weight of the evidence, not its admissibility.   Koehler v. City of Seattle, No. 78819-1-I (Dec. 30, 2019, publication ordered Feb. 10, 2020).

       
Division Two

Capacity.  When a juvenile court adjudicates a matter in which the evidence indicates that the offense occurred prior to the offender’s 12th birthday, the court must hold a capacity hearing before imposing a sentence.  If the court determines that the offender had the capacity to commit the charged crime, a judgment is entered.  If the court determines that the offender lacked the capacity to commit the charged offense, the adjudication must be dismissed.  State v. A.X.K., COA No. 52357-4-II (Feb. 11, 2020).
 
Attempted Rape of a Child.  The State is not required to prove that the defendant was aware of the age difference between himself and a non-fictitious victim in an attempted rape of a child prosecution.  State v. A.X.K., COA No. 52357-4-II (Feb. 11, 2020).
 
 
WEEKLY ROUNDUP – THE MISSING CASES EDITION
The Court experienced technical difficulties in posting some opinions issued between February 11th -20th.  This edition contains a summary of the published cases issued during that period that have not previously been reported. 
 

Division Three

Evidentiary Issues– Motions to Strike.  A trial judge who sustains an objection to testimony should also grant an accompanying motion to strike.  Striking evidence does not erase it from the record or hide it from the public; it properly eliminates the evidence from the jury’s consideration or from an appellate court’s subsequent assessment of evidentiary sufficiency.  State v. Rushworth, COA No. 36077-6-III (Feb. 20, 2020).
 
Evidentiary Issues– Open Door Doctrine. The “open door doctrine” is a theory of expanded relevance. It permits a court to admit evidence on a topic that would normally be excluded for reasons of policy or undue prejudice when raised by the party who would ordinarily benefit from exclusion. The open door doctrine recognizes that a party can waive protection from a forbidden topic by broaching the subject. Should this happen, the opposing party is entitled to respond. The The open door doctrine typically comes into play in the context of Title IV of the rules of evidence or when a defendant waives constitutional protections by eliciting  evidence pertaining to post-arrest silence.  The open door doctrine permits trial courts to admit evidence on a subject normally barred on policy or prejudice grounds, so long as the party who otherwise stands to benefit from exclusion has increased the subject’s relevance through actions at trial.  The doctrine does not, however, allow the State to introduce other clearly inadmissible evidence, such as hearsay.  State v. Rushworth, COA No. 36077-6-III (Feb. 20, 2020).
 
Evidentiary Issues– Curative Admissibility Doctrine. The “curative admissibility doctrine,” also aptly known as “fighting fire with fire,” the curative admissibility doctrine permits the introduction of evidence that is inadmissible for reasons other than relevance.  In a criminal case, this doctrine does not allow the State to introduce otherwise inadmissible evidence.  “When a defendant does not merely open the door to a newly relevant topic, but attempts to introduce incompetent evidence such as hearsay, the prosecutor’s recourse is to object. If the objection is successful, nothing more need be done to correct the record (other than a possible motion to strike). If unsuccessful, the prosecutor may either seek an interlocutory appeal or (more realistically) accept the trial court’s ruling as the law of the case and introduce responsive evidence within the terms of the court’s ruling.” State v. Rushworth, COA No. 36077-6-III (Feb. 20, 2020).
 
Evidentiary Issues– Invited Error Doctrine. Invited error is an appellate remedy that prohibits a party from setting up error in the trial court and then complaining of it on appeal. In the context of a criminal trial, the invited error doctrine provides the State redress for a defendant’s evidentiary errors without condoning misconduct.  This scenario contains an example of how the invited error doctrine applies when defense counsel obtains admission of illegal evidence in the trial court: “A defendant seeks to introduce a portion of a hearsay statement at trial. The State properly objects, but the defendant persists, arguing the statement is not hearsay. The trial court agrees with the defense and overrules the State’s objection. Under these circumstances, it would likely not be misconduct for the State to acquiesce in the trial court’s ruling and request introduction of the remaining portion of the statement in question, if relevant. Should the trial court admit the balance of the statement, the invited error doctrine would prohibit the defendant from reversing course on appeal and claiming error in the admission of the evidence.”  State v. Rushworth, COA No. 36077-6-III (Feb. 20, 2020).
 
Improper Opinion Evidence.  Regardless of whether a defendant’s recantation of his or her prior confession is “outrageous or even perjurious,” the prosecutor may not elicit testimony from a psychologist that the defendant is a diagnosed malingerer (i.e. a liar) and that he engaged in malingering on the stand.  Such evidence flouts the rules restricting opinion testimony and is “a flagrant error of constitutional proportions” that is not authorized under either the open door doctrine or the invited error doctrine.  State v. Lang, COA No. 36397-0-III (Feb. 20, 2020).
WEEKLY ROUNDUP FOR FEBRUARY 7, 2020

Washington Supreme Court

Unlawful Practice of Law.  The unlawful practice of law, RCW 2.48.180(2)(a), which makes it a crime for a nonlawyer to practice law, or hold himself or herself out as entitled to practice law, is a strict liability offense.  RCW 2.48.180(2)(a) is not unconstitutionally vague.  Separation of powers is not violated by the court defining “practice of law” in a court rule, rather than the legislature defining the phrase in a statute. A court does not err by using GR 24 to craft a jury instruction defining the “practice of law.”  State v. Yishmael, No. 96775-0 (Feb. 6, 2020).  Justices Wiggins, Madsen and Gordon McCloud dissented.  State was represented by King County DPAs Jennifer Joseph and Jennifer Atchison.
 

Division One

Unlawful Imprisonment.  In most prosecutions for unlawful imprisonment, the State must prove that the defendant “knowingly restrain[ed] another person,” RCW 9A.40.040, not that the defendant knowingly acted without legal authority. The State need only prove that the defendant acted without legal authority in those unique cases, such as ones involving bounty hunters, where the defendant had a good faith belief the s/he had legal authority to imprison a person. Although neither the State nor defense presented any evidence about whether the victim had a reasonable means of escape, the victim’s testimony is sufficient to find, beyond a reasonable doubt that the defendant restrained the victim’s movement in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.  State v. Dillon, COA No. 78592-3-I (Feb. 3, 2020). [Editor’s Note: The panel indicates that WPIC 39.16 (4th ed. 2016), contains an incorrect statement of law.  Be sure to use a corrected instruction to avoid taking on the burden of proving an unnecessary element.]
 

ER 404(b).  Evidence that the defendant, while being treated at a hospital for pre-existing injuries after his arrest for harassment, made threats and was aggressive was relevant and admissible under ER 404(b) to show his mental state and his level of intoxication. This evidence, however, should not have been characterized as “res gestae” evidence because the conduct occurred after the completion of the charged offense. State v. Dillon, COA No. 78592-3-I (Feb. 3, 2020).

Division Two

Selling Heroin for Profit.  A person convicted of selling heroin for profit, RCW 69.50.410(3)(a), shall be sentenced to the two years specified in that statute, rather than the standard range directed by the Sentencing Reform Act.  State v. Peterson, COA No. 52183-1-II (Feb. 5, 2020).

Sex Offender Registration.  RCW 9A.44.128(10)(h), to the extent it imposes a duty to register as a sex offender based on an out-of-state conviction for which there is no comparable Washington crime, is an unconstitutional delegation of the legislative function to another state.  State v. Reynolds, No. 51630-6-II (Feb. 4, 2020).  Judge Melnick dissented. [Editor’s Note: Division Two reached the same result that Division One did in State v. Batson, 9 Wn. App. 2d 546, 550-54 (2019).  The Supreme Court granted the State’s petition for review in Batson.  Oral argument is scheduled for March 12, 2020.]

Law Enforcement Digest

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests.  The online training sessions are of high quality and are applicable to prosecuting attorneys.  The November 2019 training is now posted.  

Legal Update for Washington State Law Enforcement

The January 2020 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 
WEEKLY ROUNDUP FOR JANUARY 31, 2020

Washington Supreme Court

Prosecutor Disqualification.  An elected county prosecutor’s prior involvement in a defendant’s case presumptively disqualifies the entire prosecutor’s office from prosecuting the defendant in the same case or other closely interwoven matters.  This rule is compelled by the “absolute” public right to confidence in the integrity and impartiality of the justice system.  While there might theoretically be an extraordinary case in which office-wide recusal will not be required, the Court declines to devise a test.   State v. Nickels, No. 96943-4 (Jan. 30, 2020) Lead opinion – authored by Justice Owens and signed by Justices Wiggins, Johnson and Madsen) and concurring opinion authored by Justice Gordon McCloud.    Justices Yu, González, Stephens and Pro Tem Maxa dissented.  Grant County Special DPA Pam Loginsky represented the State.
 
Miller-Fix Minimum Terms.  A defendant is entitled to a direct appeal from a minimum term set pursuant to RCW 10.95.035.  The trial court’s findings in support of its 48-year minimum term are not supported by the evidence, which contained only one incident, that took place 6 years before the evidentiary hearing, in the 20 years since the murders, in which the defendant displayed “predatory behavior.”  The trial court, moreover, erroneously relied upon the facts of the crime to find “irreparable corruption,” and oversimplified and disregarded the defendant’s mitigation evidence.  In the resentencing hearing, the court is directed to reorient its analysis to a forward-looking assessment of the defendant’s capacity for change or propensity for incorrigibility.  Neither the State nor the defendant bears the burden of proof in any RCW 10.95.035 proceeding to set a minimum term.  State v. Delbosque, No. 96709-1 (Jan. 30, 2020).  Mason County DPA Tim Higgs represented the State and King County DPA Jim Whisman represented WAPA.
 
Proposed Amendments to Court Rules.  On December 2019, the Washington Supreme Court published for comment proposed amendments to the following court rules:
 
 Admission and Practice Rules(APR)
•APR 26 – Insurance Disclosure 
 
 Superior Court Civil Rules(CR)
•CR 30 – Depositions Upon Oral Examination (WCRA Proposed Amendments)
•CR 30 – Deposition Upon Oral Examination
•CR 43 – Taking of Testimony 
 
 Rights of Defendants
•CrR 3.1 – Standards for Indigent Defense 
 
 Superior Court Criminal Rules(CrR)
•CrR 3.1 – Right to and Assignment of Lawyer
•CrR 3.4 – Presence of the Defendant
•CrR 8.2 – Motions 
 
 Rights of Defendants
•CrRLJ 3.1 – Standards for Indigent Defense 
 
 Criminal Rules for Courts of Limited Jurisdiction(CrRLJ)
•CrRLJ 1.3 – Effect
•CrRLJ 3.1 – Right to and Assignment of Lawyer
•CrRLJ 3.4 – Presence of the Defendant
•CrRLJ 8.2 – Motions 
 
 General Rules(GR)
•GR 29 – Presiding Judge in Superior Court District and Limited Jurisdiction Court District
•GR 31 – Access to Court Records
•GR 7 – Local Rules – Filing and Effective Date 
 
 Rights of Defendants
•JuCR 9.2 – Standards for Indigent Defense 
 
 Juvenile Court Rules(JuCR)
•JuCR9.3 – Right to Appointment of Experts in Juvenile Offense Proceedings 
 
 Rights of Defendants
•MPR 2.1 – Standards for Indigent Defense
 
The text of the proposed rules may be accessed here.  The comment period ends April 30, 2020.
 

Division One

Jury Void Dire. A defendant’s constitutional right to a fair and impartial jury is violated when a juror, who stated in a questionnaire that she could not be fair to both sides in a trial for sexual assault or abuse, is allowed to serve without further inquiry.  Seating such a juror without individual  inquiry by either defense counsel or the court into her ability to be fair can never be harmless and requires a new trial without a showing of prejudice. State v. Guevara Diaz, COA No. 77811-1-I (Jan. 27, 2020).

Division Two

No Contact Order.  A CrR 7.8 motion was properly brought to modify the 10-year domestic violence no contact order prohibiting all contact with the mother of their shared child, who was born after the no contact order was entered.  When a victim and a defendant potentially share an unborn child, the no contact order should provide that the prohibition on direct or third party contact with the victim does not prohibit the defendant from pursuing a paternity determination  or parenting plan in family court.   State v. McGuire, COA No. 52527-5-II (Jan. 28, 2020).
 

Public Records Act. The identity of the specific make and model of a police department’s cell site simulator (CSS) technology does not fall within RCW 42.56.240(1)’s specific intelligence information exemption.  The City did not conduct an adequate search for responsive documents, when in response to thir request for “Any records concerning any agreements, policies, procedures, or understandings related to the acquisition, use, or operation of stingray technology,” it did not search for e-mail communications based upon its interpretation of the request which was narrower than its actual language.   West v. City of Tacoma, COA No. 51487-7-II (Jan. 28, 2020).  Judge Lee dissented regarding the specific intelligence information exemption.

 

Division Three

Appellate Stays.  A trial court may find a party, who is seeking a stay of its order in the court of appeals court, in contempt for not complying with the trial court’s order while the court of appeals considers the motion to stay.  Cronin v. Central Valley School District, COA No. 36666-9-III (Jan. 30, 2020).
 
WEEKLY ROUNDUP FOR JANUARY 17 & 24, 2020

Washington Supreme Court

Date of the Offense.  The date of the offense is not an essential element of the crime.  A trial court has discretion to grant a State’s motion to expand the time period noted in the information after both the State and the defense rest if the substantial rights of the defendant are not prejudiced.  Amendment of the date should be allowed absent an alibi defense or a showing of other substantial prejudice to the defendant.  When the information provided notice to the defendant that the crime was committed “on or about” a specific date or time period, a defendant will generally not be able to demonstrate substantial prejudice.   State v. Brooks, No. 97150-1 (Jan. 23, 2020).   Justice Gordon McCloud authored a concurring opinion to emphasize her belief that the amended date time must be reasonably near to the date range in the original information.  She found that the expansion of the date range from one month to five months in this case satisfied this principle.  The State was represented in this case by Cowlitz County DPA Eric Bentson.

 

Division One

Plea Agreements. The court in a criminal case may enforce a plea agreement term even after the defendant served his sentence.  The court in the criminal case properly ordered specific performance barring the defendant, who avoided a new trial and obtained a significant reduction of charges in exchange for agreeing to permanent anti-harassment orders protecting each of the victims,  from seeking to vacate the anti-harassment orders.  State v. Wiatt, COA No. 79646-1-I (Oct. 21, 2019, publication ordered Jan. 8, 2020).
 
County Roads.  A Uniform Declaratory Judgment Action challenging the validity of a county legislative authority’s designation of a road must be brought within 20 days.  The County’s  1884 order created a road with a right of way 60 feet wide, as a contemporaneous statute provided that any road established after the enactment of chapter 229, section 2979 of the Code of 1881, would be 60 feet in width unless otherwise specified.   Yorkston v. Whatcom County, COA No. 78530-3-I (Jan. 21, 2020).
 

Division Two

No Contact Orders and Biological Children.  Before a trial court can issue a no contact order that bars a defendant who has been convicted of a sex offense from having contact with his or her biological children, the trial court must consider on the record whether less restrictive alternatives exist to achieve the State’s compelling state interest in protecting them from harm.  State v. DeLeon, COA No. 51934-8-II (Jan. 22, 2020).

 

Supreme Court of Virginia

RPC 4.2.  On January 9, 2020, the Supreme Court of Virginia approved a new formal ethics opinion to clarify the scope of Rule 4.2, which regulates the ability of lawyers to communicate directly with people who are represented by counsel.  Since Washington RPC 4.2 is identical to Virginia’s RPC 4.2, the opinion, which contains a detailed analysis of a large number of situations, is great reference tool for both criminal and civil practitioners.  Legal Ethics Opinion 1890.  Communications With Represented Persons (Compendium Opinion) (Va. 2020).
WEEKLY ROUNDUP FOR JANUARY 10, 2020

Washington Supreme Court

 
“Not a Death Penalty Case.”  State v. Townsend, 142 Wn.2d 838, 846 (2001), which bars a court from informing potential jurors that the death penalty is not being sought in a case, is overruled.  State v. Pierce, No. 96344-4 (Jan. 9, 2019). Plurality– Justices González,  Wiggins, Yu (lead opinion– overruled entirely as incorrect and harmful). Justices Madsen, Fairhurst, Owens, and Johnson (dissent)  believe that no Townsend error occurred in this case and that Townsend should not be overruled but need not be prospectively applied in light of State v. Gregory.   Justices Stephens and Gordon McCloud would reverse the defendant’s conviction based on the extensive death-qualification discussion that ensued during void dire.  The State was represented by King County DPAs Ann Summers and Jim Whisman. Spokane County DPA/WAPA Appellate Resource Attorney Gretchen Verhoef authored the WAPA amicus brief.
 
Death Qualification and Jury Selection.  Exercising a peremptory challenge to remove a juror who does not “qualify” under death-qualification questioning is a presumptively invalid basis for exercising a peremptory challenge. .  State v. Pierce, No. 96344-4 (Jan. 9, 2019). Plurality– supported by supported by Justices González,  Wiggins, Yu (lead).  Justices Stephens and Gordon McCloud (concurrence) did not address this issue as they would reverse solely due to the extensive death-qualification discussion the occurred during voir dire.   Justices Madsen, Fairhurst, Owens, and Johnson (dissent) do not address whether such a peremptory challenge is presumptively invalid as “that is not what happened here.”  These justices would uphold the State’s peremptory challenge because “no reasonable person informed by the record could conclude that race played any part in the State’s peremptory challenge.” The State was represented by King County DPAs Ann Summers and Jim Whisman. Spokane County DPA/WAPA Appellate Resource Attorney Gretchen Verhoef authored the WAPA amicus brief.
 
Jury Selection and Presumptively Invalid Peremptory Challenges. Exercising a peremptory challenge to remove a juror who had a brother who was convicted of attempted murder and who stated that the process of conviction and sentence “left a bad taste in her mouth” is presumptively invalid under GR 37(h)(i)-(iii).   State v. Pierce, No. 96344-4 (Jan. 9, 2019). Plurality– supported by supported by Justices González,  Wiggins, Yu (lead opinion), Justices Stephens and Justice Gordon McCloud (concurrence) would reverse on other grounds “mak[ing] it unnecessary to consider how to apply the analysis of GR 37 to this 2015 trial.”   Justices Madsen, Fairhurst, Owens, and Johnson (dissent) do not address whether such a peremptory challenge is presumptively invalid, viewing the State’s challenges to the two jurors being based upon the potential jurors’ acknowledged inability to act as jurors and further finding that “no reasonable person informed by the record could conclude that race played any part in the State’s peremptory challenge.”  The State was represented by King County DPAs Ann Summers and Jim Whisman. Spokane County DPA/WAPA Appellate Resource Attorney Gretchen Verhoef authored the WAPA amicus brief.
 
The Washington Supreme Court granted review in the following cases this week:
 
Pretrial Restraints.  State v. Jackson, No. 97681-3.  Clallam County. “Petition for review and cross-petition for review both granted.”   Questions presented: Whether the right to be free from restraint before the court in jury and sentencing proceedings applies to all pretrial proceedings.  Whether a defendant who is shackled during pretrial proceedings must prove a substantial injury to obtain relief.  COA opinion reported at 10 Wn. App. 2d 136 (2019).  Petition for review pleadings  available here.
 
Minimum Instream Flows.  Ctr. for Envtl. Law & Policy v. Dep’t of Ecology, No. 97684-8.  “Department of Ecology’s petition for review granted; Center for Environmental Law & Policy’s petition for review denied.” Questions presented: “1. Did Ecology properly exercise its authority in adopting the Rule when it based the Rule on the scientifically determined needs for fish, which also accounts for the base flow needs of other instream values protected by law? 2. Did the Court of Appeals wrongly conclude that the Rule is arbitrary and capricious when it is based on the scientifically determined needs of fish and also accounts for all the other instream values that must be protected by law?” COA opinion reported at 9 Wn. App. 2d 746 (2019).  Petition for review pleadings  available here.
 
Business and Occupation Taxes.  Peacehealth St. Joseph Med. Ctr. v. Dep’t of Revenue, No. 97557-4.  Questions presented: “Does the statutory language contained in RCW 82.04.4311
 limit the B&O tax deduction for Medicaid and Children’s Health receipts to receipts from the Washington state programs?  If so, does the statute unlawfully discriminate against interstate commerce in violation of the Commerce Clause of the U.S. Constitution by making it more expensive to provide hospital services to low-income persons from other states than low-income Washington residents?”  COA opinion reported at 9 Wn. App. 2d 775 (2019).  Petition for review pleadings  available here.
 
Insurance Coverage.  McLaughlin v. Travelers Commercial Ins. Co., No. 97652-0.  Questions presented: “1. Where an insurance policy did not define the term “pedestrian,” did the lower court err in failing to consider the definition of pedestrian found in applicable insurance laws that for insurance purposes a pedestrian includes anyone “not occupying a motor vehicle?” 2. Where multiple, reasonable definitions of the term “pedestrian” exist, did the lower court err in failing to construe that definition in favor of the insured and in favor of finding coverage in conflict with Washington law?” COA opinion reported at 9 Wn. App. 2d 675 (2019).  Petition for review pleadings  available here. 
 

Division One

Cannabis Retail Locations.  The Washington State Liquor and Cannabis Board properly measures from leased lot line to school to determine whether a cannabis business is located less than 1000 feet from a school.  Top Cat Enterprises v. City of Arlington, No. 79224-5-I (Jan. 6, 2020).


Legal Update for Washington State Law Enforcement

 The December 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available. 
 
WEEKLY ROUNDUP FOR DECEMBER 27, 2019 & JANUARY 3, 2020

Washington Supreme Court

Turn Indicators.  Drivers must use their signal every time they turn or change lanes on a roadway.  State v. Brown, No. 96884-5 (Dec. 26, 2019).  State was represented by Benton County Deputy Prosecuting Attorney Andrew Clark.
 

Division One

One-Party Consent Recordings.  A one-party consent recording was properly admitted against the defendant as the application established probable cause sufficient to authorize the recording of the defendant’s brother.  The defendant’s recorded statements were made as part of the intercepted communication and fall within the “incident to a lawfully recorded or intercepted communication or conversation” provision of RCW 9.73.090(2).  Under the privacy act, an order authorizing a one-party consent recording is not required to delineate the place where the recording is authorized.  An application for the order authorizing a one-party consent recording must include a statement regarding the character and location or the particular place where the oral communication is to be recorded to allow a judge to properly consider the risk of recording innocent conversations or to require appropriate safeguards when granting authorization.  An application which stated that the defendant and his brothers had been staying near/under a particular street in a homeless camp and that the recordings were “expected to occur somewhere in or around Seattle in one of the many homeless camps in the area” was minimally adequate to satisfy the requirements of RCW 9.73.130(3)(d).  State v. J.K.T., COA No. 78413-7-I (Dec. 30, 2019). 
 
Article I, § 22 Right of Confrontation.  The defendant, who solely challenged the admission of the recording of his brothers discussing the shooting as a violation of his Sixth Amendment right of confrontation in the trial court, forfeited his right to raise a Washington Constitution art. I, § 22, challenge in the appellate courts.  State v. J.K.T., COA No. 78413-7-I (Dec. 30, 2019). 
 
Statements Against Penal Interest and a Defendant’s Right to Present a Defense.  The trial court properly prohibited the defendant from eliciting testimony from a witness as to statements uttered by two others regarding the shooting.  The statements were unreliable under the nine-factor test established in State v. Roberts, 142 Wn.2d 471, 497-98 (2000), State v. Welchel, 115 Wn.2d 708, 722 (1990), and State v. Anderson, 107 Wn.2d 745, 750, 733 P.2d 517 (1987).   State v. J.K.T., COA No. 78413-7-I (Dec. 30, 2019). 
 
Intimidating a Public Servant.  The intimidating a public servant statute, RCW 9A.76.180, is unconstitutionally overbroad to the extent it applies to other than true threats.  A conviction under this statute must be supported by a serious expression of the intention to inflict bodily harm upon or to take the life of another.  State v. Dawley, No. 77982-6-I (Dec. 30, 2019).  Division One’s opinion is contrary to Division Two’s opinion in State v. Stephenson, 89 Wn. App. 794, 950 P.2d 38 (1998).

Division Three

Warrantless Courthouse Searches.  A warrantless courthouse area- entry search is valid under the Fourth Amendment’s special needs exception to the warrant requirement, so long as (1) the search was undertaken pursuant to a legitimate administrative search scheme; (2) the searcher’s actions are cabined to the scope of the permissible administrative search; and (3) there was no impermissible programmatic secondary motive for the search.  Suspicionless warrantless courthouse area-entry searches do not violate article I, section 7 of the Washington Constitution. When conducting a courthouse area-entry search, a screener may not remove a soft item that does not appear to be a weapon from a person’s coat pocket.  If, however, a soft item that contains contraband is removed along with a hard object that could be a weapon from the pocket at the same time as the hard object, the contraband will not be suppressed if the requirements of plain view are established.  State v. Griffith, COA No. 35848-8-III (Dec. 31, 2019).
 

Law Enforcement Digest

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests.  The online training sessions are of high quality and are applicable to prosecuting attorneys.  The July 2019, August 2019, September 2019, and October 2019, trainings are now posted.

Ninth Circuit

Union Dues.  Public sector employees are not entitled to a refund of agency fees that were allegedly unlawfully collected prior to the Supreme Court’s decision in Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018).  Danielson v. Inslee, No. 18-36087 (9th Cir. Dec. 26, 2019).
WEEKLY ROUNDUP FOR DECEMBER 20, 2019

Washington Supreme Court

Appellate Court Sanctions. A $200 fine imposed upon an attorney for seeking an extension of time to file an opening brief is an indigent criminal appeal must be set aside, because the attorney was fulfilling his duty of effective representation in asking for the extension of time.  State v. Graham, No. 97329-6 (Dec. 19, 2019).  State was represented by Lewis County DPA Sara Beigh.
 
Disqualification of Judge.  Rulings on pretrial stipulated orders relating to scheduling and deadlines fall within the exception in the “affidavit of prejudice” statute, former RCW 4.12.050, for “the arrangement of the calendar.”  An affidavit of prejudice filed subsequent to the entry of such an order, but before the judge makes a discretionary decision that is not exempted by former RCW 4.12.050 is timely and must be given effect. Godfrey v. Ste. Michelle Wine Estates LTD., No. 96952-3 (Dec. 19, 2019).
 
Public Records Act.  Individual legislators are “agencies” subject in full to the Public Records Act’s general public records disclosure mandate.  Institutional legislative bodies are not “agencies,” but they are subject to the PRA’s narrower public records disclosure mandate by and through each chambers’ respective administrative officer. Associated Press v. Washington State Legislature, No. 95441-1 (Dec. 19, 2019).  Plurality– Justices Owens, Fairhurst, Wiggins and Madsen signed lead opinion.  Justices Stephens, Yu, and Johnson, concurred in part and dissented in part in a decision which joined the lead opinion’s decision that individual legislators are “agencies,” but rejected the lead opinion’s position that institutional legislative bodies are not “agencies.”   Justices Gordon McCloud and Wiggins concurred in part and dissented in part in a decision that joined the lead opinion’s position that institutional legislative bodies are subject to narrow disclosure requirements, but rejected the lead’s opinion that individual members are subject to broader disclosure requirements.
 

Division One

Derivative Use Immunity.  Even though the use immunity authorized by RCW 26.44.053(2) for statements made by a parent during any psychological or other evaluation associated with a dependency action is insufficient to guarantee the parent’s constitutional right against self-incrimination, a trial court lacks the inherent authority to grant derivative use immunity to a parent in a dependency action.  “[T]he grant of use and derivative use immunity is solely a legislative, and not a judicial, prerogative. . . in the absence of a statute, trial courts do not have the inherent authority to confer derivative use immunity on a parent in a dependency proceeding over the objection of the prosecutor.”  Dependency of A.M.-S., COA No. 79364-1-I (Dec. 16, 2019).

     
Division Two

Sexsomnia.  Sexsomnia is an abnormal activity, similar to sleepwalking, that involves people engaging in sexual acts during sleep.  Exclusion of testimony regarding sexsomnia did not violate the defendant’s Sixth Amendment right to present a defense where no psychological evaluation could determine whether the defendant suffered from sexsomnia at the time of the offense or that the defendant had the disorder.  State v. Pratt, COA No. 51777-9-II (Dec. 17, 2019).
 
SSOSA.  Trial court erred by granting a SSOSA sentence where the defendant did not have an “established connection” with the child victim independent of the crime.  The defendant could not remember meeting or speaking to the victim before the incident and had nothing beyond a possible “hi-bye” acquaintance with her parents.  The victim’s familial relationship to the defendant is also tenuous– victim’s mother’s stepsister is married to the defendant’s uncle.  State v. Pratt, COA No. 51777-9-II (Dec. 17, 2019).  Judge Maxa dissented. 
 

Division Three

Protection Orders.  A trial court may only grant a domestic violence protection order prohibiting a parent from having contact with his or her spouse and minor children when the complained of physical discipline exceeds that allowed under RCW 9A.16.100.  Ugolini v. Ugolini, COA No. 36156-0-III (Dec. 17, 2019).

WEEKLY ROUNDUP FOR DECEMBER 13, 2019

Washington Supreme Court

Public Records Act.  Local governments may not create a layer of administrative review or require administrative exhaustion before a requester may seek judicial review related to a Public Records Act request.  Kilduff v. San Juan County, No. 95937-4 (Dec. 12, 2019).   San Juan County was represented at oral argument by Special Deputy Prosecuting Attorney Phillip Buri.
 
Quo Warranto. A private quo warranto action is available only where the petition can assert and prove a spcial interest in the office.  A special interest is one that is not an interest in common with other citizens.  A petitioner who files a private quo warranto action without standing may only be assessed costs pursuant to RCW 4.84.185 if the entire suit is frivolous.  Kilduff v. San Juan County, No. 95937-4 (Dec. 12, 2019).   San Juan County was represented at oral argument by Special Deputy Prosecuting Attorney Phillip Buri.
 
Offender Score. The defendant’s failure to object to the offender score does not prevent appellate review where the State only offered an unsupported summary of criminal history. A trial court may rely on prior convictions that are admitted, acknowledged, or proved in a trial at sentencing. State v. Cate, No. 97209-5 (Dec. 12, 2019).  State represented by Okanogan County Prosecuting Attorney Arian Noma.  [Editor’s Note: This opinion contains a significant error, stating on page 4  that the State bears the burden of proving prior criminal history beyond a reasonable doubt.  This statement is inconsistent with existing case law and with the first paragraph of the analysis. A motion for reconsideration has been filed.]
 
Felony DUI.  The essential elements of felony DUI are set forth in RCW 46.61.5055(14)(a).  Following a trial court’s determination of admissibility, a jury should determine whether the essential elements of felony DUI have been met based on proof beyond a reasonable doubt provided by the State.  Overruling State v. Mullen, 186 Wn. App. 321 (2015), the Court holds that the State is not required to prove that a conviction for reckless driving that is the result of a charge that was originally filed as a DUI involved alcohol or drugs.  State v. Wu, No. 96747-4 (Dec. 12, 2019).  Justices Johnson, Wiggins, and Gordon McCloud dissented.  State was represented by King County Deputy Prosecuting Attorney Gavriel Jacobs.
 
Preliminary Appearances.   A superior court may conduct preliminary appearance hearings for misdemeanors and gross misdemeanors originally filed in district court.  State v. Stevens County District Court Judge, No. 97071-8 (Dec. 12, 2019).  State was represented by Stevens County Special Deputy Prosecuting Attorney Will Ferguson.
 

Division Three

Rape by Forcible Compulsion.  WPIC 18.25 (4th ed. 2016), which states that “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse,”  is a correct statement of the law.  A defendant charged with rape by forcible compulsion is not entitled to a jury instruction that requires the State to prove the absence of consent beyond a reasonable doubt.  State v. Knapp, No. 35901-8-III (Dec. 10, 2019).

 

Legal Update for Washington State Law Enforcement

The November 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
WEEKLY ROUNDUP FOR DECEMBER 6, 2019

Washington Supreme Court

Right to Present a Defense. The limitations placed upon the defense arson expert’s testimony due to his failure to follow well established scientific methodology was not an abuse of discretion under ER 702, as unreliable testimony does not assist the trier of fact.  The trial court did not abuse its discretion by excluding demonstrative photographs involving experimental conditions that were not sufficiently similar to the case at hand as irrelevant.  The trial court’s evidentiary rulings did not violate the defendant’s constitutional rights as the defendant was still able to advance her defense theory, including testimony from his expert witness.  State v. Arndt, No. 95396-1 (Dec. 5, 2019).   Justices Madsen, Gordon McCloud, and Johnson dissented.  The State was represented by Kitsap County Deputy Prosecuting Attorney Randall Sutton.
 
Double Jeopardy.  The defendant’s convictions for both first degree aggravated murder and first degree arson do not violate double jeopardy protections, as the two crimes have separate purposes and effects. The aggravated first degree murder charge involved a single victim.  The first degree arson charge destroyed a home that belonged to someone other than the murder victim and that was manifestly dangerous to the other occupants.  State v. Arndt, No. 95396-1 (Dec. 5, 2019).   Justices Madsen, Gordon McCloud, and Johnson dissented.  The State was represented by Kitsap County Deputy Prosecuting Attorney Randall Sutton.
 
Utilities and County Right of Ways.  King County may charge franchise compensation generally.  The charge is in the nature of a rent and not a tax.   Water-sewer districts or private utilities have no general right to use King County’s rights-of-way without a franchise.  Whether an individual utility has some specific right to use the rights-of-way without a franchise must be resolved on a case-by-case basis.  King County v. King County Water Districts, No. 96360-6 (Dec. 5, 2019).  Justices Stephens and Lawrence-Berry, J.P.T., concurred, clarifying that the result extends to non home-charter counties.  King County was represented by Thomas Brown, David Hackett, Matthew Segal, Jessica Skelton, Donald Woodworth, and Kymberly Evanson.
 
 The Washington Supreme Court granted review in the following matters this week:
 
SANE and Testimonial Hearsay.  State v. Burke, No. 96783-1.  State’s Petition–Pierce County.  Issues: “1. Did the sexual assault examination in this case have dual purposes?  2. Was one of the purposes of the sexual assault examination in this case the provision of medical care to a rape victim? 3. Does the record in this case suggest that the medical purpose of assisting a rape victim was in any way secondary or subordinate to the purpose of gathering evidence of a rape? 4. Does every conversation, examination, and document have a primary purpose? 5. Does the Confrontation Clause require a finding that every multi-purpose conversation must have a primary purpose? 6. Did the Court of Appeals err when it concluded that the provision of evidence was the primary purpose of the sexual assault nurse examination in this case? 7. Did the Court of Appeals err in its Confrontation Clause “primary purpose” analysis by failing to consider the individual statements made in the course of K.E.H.’s sexual assault examination? 8. Did the Court of Appeals err when it applied an all-or-nothing primary purpose Confrontation Clause analysis to a mixed-purpose sexual assault examination, rather than conducting a statement-by-statement analysis? 9. Should this matter be remanded to the Court of Appeals to conduct a statement-by-statement analysis? 10. Did the Court of Appeals err when it concluded that Confrontation Clause error in this case was not harmless?” COA opinion reported at 6 Wn. App. 2d 950 (2018).  Petition for review pleadings available here.
 
Sex Offender Registration.  State v. Batson, No. 97617-1.  State’s Petition– King County.  “State’s petition for review granted; review of the issues raised in the answer to the petition for review also granted.”  State’s Issue: Washington’s registration statute requires a person, who was convicted of an out-of-state conviction that is not comparable to any Washington offense, to register while residing in this state if obligated to do so in their state of conviction.  “Is this statutory scheme constitutional when the Washington legislature has defined every element of failing to register, and Arizona law merely controls when the registration requirement becomes operative for some individuals?”  Defendant’s Issues:  Do the changes to Washington’s sex offender registration scheme raise a significant question of constitutional law requiring a reassessment of this Court’s ex post facto and double jeopardy precedent? Does requiring a defendant with a non-comparable out-of-state conviction violate equal protection?  COA opinion reported at 9 Wn. App. 2d 546 (2019). Petition for review pleadings available here.
 
Tort-Liability and Execution of Search Warrants.  Mancini v. City of Tacoma, No. 97583-3.  Issues: When might a police officer be liable under a tort-law duty of reasonable care when a lawfully issued search warrant mistakenly identified the plaintiff’s home as the site of the criminal activity? Do law-enforcement officers in Washington owe a tort-law duty to the individual resident of a private home, when executing a search warrant, to release that resident from handcuffs when the officers know or, in the exercise of reasonable care, should know that the warrant mistakenly identified the home as the site of criminal activity?  COA opinion is unpublished. Petition for review pleadings available here.
 
Sewer Districts.  Ronald Wastewater Dist. v. Olympic View Water & Sewer Dist., No. 97599-0.   King County Petition for Review/Snohomish County a Respondent.  Whether the superior court lacked subject matter jurisdiction to approve Ronald’s 1986 annexation of the Point Wells Service Area?  Whether the “absurd results” cannon of statutory construction was improperly applied in this case?  COA opinion unpublished.  Petition for review pleadings available here.
 
Attorney Disqualification.  Plein v. USAA Cas. Ins. Co., No. 97563-9. Issues: “1. Does Washington law disfavor tactical motions to disqualify opposing counsel and, accordingly, should the affirmative burden of proving the basis for disqualification be placed on the party seeking such disqualification? 2. Do this Court’s 2006 Comments to RPC 1.9 govern the interpretation of whether attorneys’ former representation is “substantially related” to the present representation under the rule, and is the determination of “substantially related” a factual analysis? 3. Where attorneys’ former representation of an insurer was not the same matter as the present representation, the former representation was factually unconnected to the present representation, and the former representation merely involved matters of a similar type to the present representation that only gave the attorney general knowledge of the insurer’s practices and procedures that would have been revealed in discovery, did the trial court correctly conclude on substantial evidence that the representation was not “substantially related” and the attorneys’ disqualification was not merited under RPC 1.9, as interpreted by this Court in Comments 2 and 3?”  COA opinion reported at 9 Wn. App. 2d 407 (2019). Petition for review pleadings available here.
 

Division One

Self-Defense.  New trial required because judge-altered WPIC 16.03, which replaced “felony” with “violent felony,” coupled with an additional instruction which stated that “Robbery is a felony,” suggested that a robbery may not satisfy the requirements of a justifiable homicide defense because it does not qualify as a violent felony.  Because the modified instruction  instructions diluted the State’s burden of proving the absence of self-defense beyond a reasonable doubt, the defendant could assert the error for the first time on appeal.  An additional modification to WPIC 16.03, which added a requirement to the pattern instruction that the “slayer reasonably believed that the violent felony threatens imminent danger of death or great personal injury,” is improper when he claim of self defense rests solely upon actual resistance to a felony, RCW 9A.16.050(2).  The addition failed to make the applicable legal standards apparent to the average juror.   State v. Ackerman, COA No. 77807-2-I (Dec. 2, 2019).
 

Ninth Circuit

State-Created Danger Doctrine and Domestic Violence Victims. The state-created danger doctrine under the Due Process Clause applies when an officer reveals a domestic violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity. Similarly, the state-created danger doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity. Going forward, the panel held that the law in this circuit will be clearly established that such conduct is unconstitutional.  Martinez v. City of Clovis, No. 17-17492 (9th Cir. Dec. 4, 2019).
 
WEEKLY ROUNDUP FOR NOVEMBER 29, 2019

Division One

Public Records Act.  The private nonprofit organization Child Advocacy Center of Snohomish County at Dawson Place is not the functional equivalent of a government agency.  It is, therefore, not subject to the Public Records Act.  Shavlik v. Dawson Place, COA No. 79656-9-I (Nov. 25, 2019).
 
Growth Management Act.  The City of Sammamish’s housing element satisfied the Growth Management Act.  Sammamish properly relied upon reasonable assumptions derived from the United States Census, Washington Office of Financial Management, the Comprehensive Housing Affordability Strategy, King County, the United States Department of Housing and Urban Development, A Regional Coalition for Housing and Puget Sound Regional Counsel.   Sammamish was not required to create distinct categories for high income units.  Stickney v. Central Puget Sound Growth Management Hearings Board, COA No. 78518-4-I (Nov. 25, 2019).
 

Division Two

Legal Financial Obligations.  An appeal from an order revoking a DOSA sentence does not  allow a defendant to appeal legal financial obligations that were included in the judgment and sentence in which the DOSA was imposed.  State v. Vandervort, COA No. 51973-9-II (Nov. 26, 2019). 
 
WEEKLY ROUNDUP FOR NOVEMBER 22, 2019

Washington Supreme Court

Rendering Criminal Assistance.  An information charging the offense of rendering criminal assistance must include one or more of the six specified actions listed in RCW 9A.76.050.  State v. Pry, No. 96599-4 (Nov. 21, 2019).  Dissenters were Justices Yu, Owens, and González.  State was represented by Kitsap County DPA Randall Sutton.
 
Adequacy of Charging Documents.  An inadequacy of an information cannot be cured by referring to an attached certificate of probable cause.  State v. Pry, No. 96599-4 (Nov. 21, 2019).  Dissenters were Justices Yu, Owens, and González.  State was represented by Kitsap County DPA Randall Sutton.
 
 

Division One

Search Warrants.  Police officers did not exceed the scope of a search warrant by digging into the ground on real property to exhume a body from a location where detectives found what they believed might be skin and dark hair. The search warrant for the .083-acre property extended to the fire pit located on the property; the fire pit did not need to be separately designated. The warrant, which authorized the seizure of trace evidence of the crimes of first degree and/or second degree murder was not overbroad.  State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 
Aggressor Instruction.  Although the court was under no obligation to give a first aggressor jury instruction, it was not error to give the instruction when there was conflicting evidence about whether the defendant initiated the altercation with the victim.  State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 
Same Criminal Conduct.  Unlawful possession of a firearm and possession of an unlawful firearm are the same criminal conduct as the victim of both crimes is the general public and his objective criminal intent in committing the two crimes was the same: to possess the firearm.  State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 
Preservation of Evidence.  The defendant did not establish a violation of his due process rights where he failed to prove that video evidence of the shooting existed.  Two witnesses testified that they believed the camera was not recording at the time of the shooting, and if a recording had been made, it would have been automatically overwritten.   State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 
Speedy Trial.  The defendant’s constitutional right to a speedy trial was not violated by 18-month delay between charges being filed and the beginning of trial, where defense counsel requested numerous continuances in order to adequately prepare for trial and the defendant did not establish any prejudice to his defense from the delay.   State v. Hatt, COA No. 77117-5-I (Nov. 18, 2019).
 


Division Three

Police Body Cameras.  Body camera evidence does not violate the Privacy Act, chapter 9.73 RCW, as police interaction with a suspect and witnesses or victims of the crime are not private conversations.   The requirements of RCW 9.73.090(1)(b) do not apply until the suspect is arrested.   State v. Clayton, COA No. 35884-4-III (Nov. 19, 2019).

 

Ninth Circuit

U-Visas.  Splitting from the other circuits that have considered the question, the Ninth Circuit holds that a U-Visa applicant has a right to judicial review of a United States Citizenship and Immigration Service’s denial of the requested visa.  Perez Perez v. Wolf, No. 18-35123 (9th Cir. Nov. 22, 2019).
WEEKLY ROUNDUP FOR NOVEMBER 15, 2019

Washington Supreme Court

Land Use Regulations and Substantive Due Process.  Unless and until the Washington Supreme Court adopts a heightened standard as a matter of independent state law, article I, section 3 substantive due process claims are subject to the same standards as federal substantive due process claims.  The standard applicable to a plaintiff’s state substantive due process challenge to land use regulations and other laws regulating the use of property is rational basis review.  A law that regulates the use of property violates substantive due process only if it “fails to serve any legitimate governmental objective,” making it “arbitrary or irrational.” Chevron U.S.A., 544 U.S. at 542.
 
The “unduly oppressive” test recited in many Washington Supreme Court cases can no longer be interpreted as requiring heightened scrutiny in substantive due process challenges to laws regulating the use of property.  An appendix to the opinion contains a nonexclusive list of 62 cases that may no longer be interpreted as requiring heightened scrutiny in article I, section 3 substantive due process challenges to laws regulating the use of property.   Yim v. City of Seattle, No. 96817-9 (Nov. 14, 2019).
 
Regulatory Takings. The definition of regulatory takings set forth by the United States Supreme Court in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), applies to all taking claims under Wash. Const. art. I, § 16. Pursuant to Chevron U.S.A., there are only two categories of per se regulatory takings: (1) “where government requires an owner to suffer a permanent physical invasion of her property” and (2) “regulations that completely deprive an owner of ‘all economically beneficial us[e]’ of her property.” 544 U.S. at 538 (alteration in original) (quoting Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992). If an alleged regulatory taking does not fit into either category, it must be considered on a case-by-case basis in accordance with the Penn Central factors. Id. at 538-39.  Seattle’s First in Time rule does not fit into either of the per se categories set forth in Chevron U.S.A.
 
The following precedent is disavowed to the extent that it defines regulatory takings in a manner that is inconsistent with Chevron U.S.A.: Orion Corp. v. State, 109 Wn.2d 621 (1987); Presbytery of Seattle v. King County, 114 Wn.2d 320 (1990); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1 (1992); Robinson v. City of Seattle, 119 Wn.2d 34 (a992); Guimont v. Clarke, 121 Wn.2d 586 (1993); Margola Associates v. City of Seattle, 121 Wn.2d 625; and Manufactured Housing Communities of Washington v. State, 142 Wn.2d 347 (2000) (plurality opinion).  Yim v. City of Seattle, No. 95813-1 (Nov. 14, 2019).
 

Division One

Identification of Defendant.  Detective’s testimony that he looked up the defendant’s Facebook page after another officer obtained the defendant’s name from him and that the person on the Facebook page was the person who sold drugs to the detective was proper law opinion testimony under ER 701. State v. Henson, COA No. 78361-1-I (Nov. 12, 2019).


Washington State Institute for Public Policy

“Dually Involved” Youth. Report to the State legislature regarding “dually involved” youth– those with a history of involvement in both the juvenile justice and child welfare systems.  WSIPP, Dually Involved Females in Washington State: Outcomes, Needs, and Survey of Approaches to Serve This Population (November 2019).
 
WEEKLY ROUNDUP FOR NOVEMBER 8, 2019

Washington Supreme Court

Unlawful Possession of a Firearm. Second degree unlawful possession of a firearm statute, RCW 9.41.040(2)(a), is not an alternative means statute.  Ownership, possession, and control all describe ways of accessing guns.  A jury need not be unanimous as to whether the defendant owned, possessed, or controlled the firearm.  State v. Barboza-Cortes, No. 96397-5 (Nov. 7, 2019).   Justices González and Owens concurred in the result, urging the Court to adopt the federal approach from Griffin v. United States, 502 U.S. 46, 56 (1991).  Under Griffin, on appellate review, a general jury verdict on an alternative means crime will not be vacated so long as sufficient evidence supports at least one of the means. [Editor’s Note: The rule announced in Griffin is consistent with Washington territorial case law.  See Leschi v. Wash. Terr., 1 Wash. Terr. 13, 26-27 (1857).] The State was represented by Chelan County DPAs Connor Johnson and Ryan Valaas.
 
Identity Theft.  Second degree identity theft statute, RCW 9.35.020(1), is not an alternative means statute.  Punishment for using a person’s personal information does not depend on whether the crime committed is a financial or other crime.  A jury need not be unanimous as to whether the defendant used a “means of identification” or “financial information.” State v. Barboza-Cortes, No. 96397-5 (Nov. 7, 2019).   Justices González and Owens concurred in the result, urging the Court to adopt the federal approach from Griffin v. United States, 502 U.S. 46, 56 (1991).  Under Griffin, on appellate review, a general jury verdict on an alternative means crime will not be vacated so long as sufficient evidence supports at least one of the means. [Editor’s Note: The rule announced in Griffin is consistent with Washington territorial case law.  See Leschi v. Wash. Terr., 1 Wash. Terr. 13, 26-27 (1857).] The State was represented by Chelan County DPAs Connor Johnson and Ryan Valaas.
 
Cellphone Data. A “ping” is a search under article I, § 7 and the Fourth Amendment.  A warrantless ping search is permissible when exigent circumstances exist.  In the instant case, officers used a ping to locate the defendant’s vehicle in order to execute a search warrant.  Since the defendant was aware of police interest in his car prior to obtaining the search warrant there was a valid concern that the defendant might destroy any evidence contained in the sedan. The facts also gave rise to a reasonable conclusion that the defendant had fled the area.  State v. Muhammad, No. 96090-9 (Nov. 7, 2019).  Lead opinion on these points authored by Justice Wiggins.  The State was represented by Asotin County Special DPA and WAPA Appellate Resource Attorney Jennifer Joseph.  Jennifer is a King County DPA.
 
Felony Murder and Double Jeopardy.  Imposing convictions for both felony murder predicated on rape and first degree rape violates double jeopardy.  State v. Muhammad, No. 96090-9 (Nov. 7, 2019). Opinions that state this rule are those authored by Justices Madsen and Gordon McCloud.  The State was represented by Asotin County Special DPA and WAPA Appellate Resource Attorney Jennifer Joseph.  Jennifer is a King County DPA.
 
The Washington Supreme Court agreed to hear the following cases on the merits this week:
 
 Drug Sentencing.  State v. Cyr, No. 97323-7.  Lewis County. Issue: “Did the Court of Appeals incorrectly hold that because Cyr had a previous conviction under RCW 69.50, the trial court erred when it exercised its discretion to sentence Cyr to five years for his current convictions under RCW 69.50.410 rather than applying the doubling provision in RCW 69.50.408(1)?”  COA opinion is reported at 8 Wn. App. 2d 834 (2019). The petition for review is available here.
 
Juveniles Sentenced as Adults and Felony Firearm Offender Registry.  State v. Gregg, No. 97517-5.  King County.  Questions presented: (1) Does it violate the federal or state constitutions to place the burden on a defendant who committed his or her crime prior to his or her 18th birthday to prove that his status as a child made him less culpable?  (2) Is the defendant entitled to withdraw his guilty plea when the prosecutor told him in the plea agreement and the plea hearing that the sentencing court would not be required to make the defendant register as a felony firearm offender upon release, when the court imposed a registration requirement.  COA opinion reported at  9 Wn. App. 2d 569 (2019).  Petition for review pleadings  available here.
 
Retroactivity of “Juvenile” Sentencing Cases.  In re Personal Restraint of Ali, No. 95578-6.  King County.  Whether the petitioner’s sentences, which were imposed in 2009, for crimes committed prior to his eighteenth birthday are unlawful because the sentencing court failed to consider imposition of a downward exceptional sentence based upon his youth and the trial court did not consider running firearm enhancements concurrently.  Whether the petition is not time barred because of changes in the law.
 
Retroactivity of Houston Sconiers.  In re Personal Restraint of Domingo-Cornelio, No. 97205-2.  Pierce County.  Did State v. Houston-Sconiers, 188 Wn.2d 1 (2017), announce a new rule that is applicable to cases that were final before Houston-Sconiers was issued?
 
Gift of Public FundsPeterson v. Port of Benton, No. 97410-1. Questions presented: “Where the Port of Benton (“Port”) allowed railroads to use its railroad track rent free and without paying for the impact to the track from the wear and tear occasioned by their trains’ track usage, was there at least a fact question as to whether the Port had the requisite donative intent or the consideration it derived from the railroads for their usage of its track was so grossly inadequate as to be tantamount to a gift so that the Port made an unconstitutional gift of public funds to the railroads under article VIII, § 7 of the Washington Constitution?”  COA opinion reported at 9 Wn. App. 2d 220 (2019).  Petition for review pleadings  available here.
 
Employment Law.  Burnett v. Pagliacci Pizza, Inc., No. 97429-2.  Questions presented: “1. Does providing an at-will employee with an employee handbook, and requiring him to read it at home and to comply with its terms, deny the employee a meaningful choice and thereby render a mandatory arbitration policy contained in the handbook procedurally unconscionable? 2. Does requiring an employee to engage in a non-binding dispute resolution process before commencing arbitration so shock the conscience as to render a mandatory arbitration policy substantively unconscionable? 3. Can an entire agreement be struck down as substantively unconscionable based upon a clause that could hypothetically lead to unfair outcome which did not occur? 4. If it is substantively unconscionable to require an employee to engage in a non-binding dispute resolution process before commencing an arbitration, should the strong public policy encouraging arbitration require severance of that provision from an arbitration agreement?”  COA opinion reported at 9 Wn. App. 2d 192 (2019). Petition for review pleadings  available here.
 
Intestate Succession.  In re Estate of Petelle, No. 97463-2.  Questions presented: “Whether a separation contract that converted the marital estate to separate property and was a ‘final settlement of all their marital and property rights and obligations’ but was neither a contract to legally separate or dissolve the marriage nor purported to expressly disclaim the statutory right to inherit if the other spouse died intestate nevertheless ‘impliedly waived’ the parties’ statutory right to intestate succession as a surviving spouse?”  COA opinion reported at 8 Wn. App. 2d 714 (2019).   Petition for review pleadings  available here.
 
Res Ipsa Loquitur.  Brugh v. Fun-Tastic Rides Co., No. 97503-5.  “Granted only as to the issue of the res ipsa loquitur analysis of ‘result.’”  Questions presented: “The first element of res ipsa loquitur requires that the accident or occurrence causing injury would not ordinarily happen in the absence of negligence. One condition for meeting this element is that the ‘general experience and observation of mankind teaches that the result would not be expected without negligence.’ Does ‘result’ mean the injury-causing event or the alleged injury?” COA opinion reported at 8 Wn. App. 2d 176 (2019).   Petition for review pleadings  available here.
 

Legal Update for Washington State Law Enforcement

 The October 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

 

WEEKLY ROUNDUP FOR NOVEMBER 1, 2019

Washington Supreme Court

Public Records Act.  A voter adopted initiative exempting names and addresses of individuals who provide subsidized childcare under Washington’s Working Connections Child Care program from Public Records Act (“PRA”) coverage and prohibiting agencies from releasing this information bars release of information pursuant to a pre-initiative PRA request.  Service Employees International Union Local 925 v. Department of Early Learning, No. 96578-1 (Oct. 31, 2019).
 

Division One

Involuntary Commitments.  The court’s failure to comply with its obligations under RCW 71.05.240 regarding notice to a detainee as to the loss of his constitutionally protected firearm rights requires  restoration of the detainee’s right to possess a firearm as if te commitment order never occurred.  In re Detention of T.C., COA No. 78222-3-I (Oct. 28, 2019).
 
Involuntary Commitments.  Supplemental findings of fact in support of a trial court’s 14-day involuntary commitment order will be struck when counsel for the State did not give notice to appellate counsel in addition to trial counsel and where the State failed to comply with RAP 7.2.  When general “boilerplate” findings in support of commitment are insufficient to permit meaningful review, the involuntary commitment order will be reversed.   In re Detention of G.D., COA No. 78585-1-I (Oct. 28, 2019).
 

Restoration of Firearm Rights.  The firearms statute, RCW 9.41.040, prohibits those with dismissed juvenile deferred dispositions from owning a firearm.  Such a juvenile’s firearm rights are not “automatically” restored  when his underlying conviction  is vacated.  State v. S.G., COA No. 78614-8-I (Oct. 28, 2019).

 

Division Two

Search Incident to Arrest.  A search of an arrestee’s person or articles in his or her possession extends to closed, but not locked containers found on their person and/or in articles (i.e. purses) in his or her custody at the time of arrest.   State v. Richards, COA No. 51700-1-II (Oct. 29, 2019).
 
WEEKLY ROUNDUP FOR OCTOBER 25, 2019

Washington Supreme Court

Public Records Act.  The Public Records Act (PRA), chapter 42.56 RCW, does not exempt these records from disclosure  public records containing state employees birth dates associated with their names.  Nor does Washington Constitution article I, section 7 preclude disclosure, given that names and birth dates are widely available in the public domain and that their disclosure here does not violate privacy rights.  Washington Public Employees Ass’n UFCW Local 365 v. Evergreen Freedom Foundation, No. 95262-1. Justices Wiggins, Owens, Gordon McCloud and González dissented.

 

Division One

Stalking and No Contact Orders.  The stalking statute, RCW 9A.46.110, is not constitutionally overbroad.  Stalking through harassment is not based on the content of pure speech.  The statute prohibits conduct, with speech incidently regulated.  The trial court did not abuse its discretion when it denied the defendant’s motion for separate trials on the no-contact order and stalking offenses.  The trial court properly admitted four prior convictions with associated guilty pleas to demonstrate the defendant’s knowledge that his current conduct was unlawful and to prove the victim’s reasonable fear. The trial court did not abuse its discretion by failing to redact the “warning” provisions of the court order which that that it is the defendant’s “sole responsibility” to abide by the terms of the no-contact orders.  State v. Nguyen, COA No. 77604-5-I (Oct. 21, 2019).

 

District of Columbia Bar Legal Ethics Committee

Impaired Lawyers.  The District of Columbia Legal Ethics Committee has examined the ethical duties of partners; other managerial or supervisory lawyers and subordinate lawyers; and non-lawyer employees to take appropriate measures when they reasonably believe another lawyer in the same law firm or government agency is suffering from a significant impairment that poses a risk to clients.  The comprehensive opinion addresses the applicable ethics rules and also discusses the need to encourage individuals who are suffering from a mental impairment to seek and obtain assistance and treatment.  Ethics Opinion 377: Duties When a Lawyer is Impaired (Oct. 2019).
WEEKLY ROUNDUP FOR OCTOBER 11 & 18, 2019

Washington Supreme Court

DUIs and Vehicle Impounds.  Hailey’s Law, RCW 46.55.360, which requires officers to impound a vehicle any time they arrest its driver for driving under the influence violates Const. art. I, § 7.  A vehicle may only be impounded on probable cause that it contains evidence of a crime or when there is reasonable justification for the impoundment.  Reasonable justification must be based upon the facts and circumstances in a particular case and requires an officer to consider reasonable alternatives to impound.  State v. Villela, No. 96183-2 (Oct. 17, 2019).  State represented by Grant County Deputy Prosecuting Attorneys Kevin McCrae and Katherine Mathews.
 
Vehicular Homicide and Assault.  When the jury is instructed on a defense that necessarily negates an element listed in the to-convict instruction, a definitional instruction adequately informs the jury of the State’s burden of proof. A trial court does not need to explicitly instruct the jury that the State has the burden to prove absence of superseding intervening cause because, proximate cause and presence of a superseding intervening cause are mutually exclusive. This means proof of proximate cause beyond a reasonable doubt necessarily proves absence of a superseding intervening cause.  State v. Imokawa, No. 96217-1 (Oct. 10, 2019).  Justices Madsen and Gordon McCloud dissented.  State represented by Clark County Deputy Prosecuting Attorneys Rachael Rogers and Lauren Boyd.
 
Offender Scores.  Time spent in jail as a sanction for failing to pay legal financial obligations ordered on a felony conviction does not reset the five-year washout period under RCW 9.94A.525(2)(c).  State v. Schwartz, No. 96643-5 (Oct. 10, 2019).  State represented by Klickitat County Prosecuting Attorney David Quesnel.
 
Public Records Act. Whether the “active and ongoing” employment investigations for “unfair practice .. or of a possible violation of other federal, state, or local laws, prohibiting discrimination” exemption, former RCW 42.56.250(5) (2014), applies to a Public Records Act (“PRA”) request is determined by the status of the investigation on the date the PRA request is received.  Installments produced after the exemption expire are still subject to the exemption.  “Should the exemption expire and the record come into ‘existence’ after the initial request and determination, the onus is on the requestor to make a ‘refresher request.’”  Gipson v. Snohomish County, No. 96164-6 (Oct. 10, 2019).  Justice Stephens dissented. Snohomish County represented by Deputy Prosecuting Attorney Alex Witenberg and former DPA Sara Di Vittorio.
 

Division One

Search Incident to Arrest.  Officers may not conduct a warrantless search of an arrestee’s backpack which is sitting behind her at the time of arrest under the search incident to arrest of an arrestee’s person doctrine.  Search incident to arrest of the backpack under the arrestee person’s doctrine is only proper when the arrestee is holding, wearing, or carrying the backpack at the time of her arrest or immediately preceding the time of arrest.  A search of a backpack that is not in the arrestee’s sole and exclusive possession at the time of arrest or immediately preceding the time of arrest may be searched under the arrestee’s immediate control or “grab area” search incident to arrest doctrine if there is some articulable concern that the arrestee can access the item in order to draw a weapon or destroy evidence.  State v. Alexander, COA No. 77513-8-I (Oct. 7, 2019).
 

Division Two

Animal Cruelty.  RCW 16.08.020, which states that it is lawful for a person to kill a dog seen chasing, biting, or injuring a domestic animal on real property that person owns, leases, or controls, does not require that the shooting of the animal be “reasonably necessary” to protect the shooter’s domestic animal.  A pet dog is a “domestic animal” for purposes of RCW 16.08.020.   A defendant who claims the protection of RCW 16.08.020 is entitled to a jury instruction that sets forth the three elements of the defense and that places the burden of disproving the defense beyond a reasonable doubt upon the State.  State v. Wilson, COA No. 50800-1-II (Oct. 8, 2019).
 
Portable Breath Tests. Where a custodial arrest is based on an offense unrelated to DUI or some other driving offense in which alcohol consumption is not an element, a search of an arrestee’s breath for alcohol concentration does not fall within the search incident to arrest rule.  When a PBT does not fall under the search incident to arrest exception the arrestee has a constitutional right to refuse the PBT and evidence of her exercise of her constitutional right to refuse the test is inadmissible at trial. It is improper for a police officer to opine that a person’s refusal to submit to field sobriety tests and/or to a breath test is evidence that the person is under the influence.  City of Vancouver v. Kaufman, COA No. 51202-5-II (Oct. 15, 2019).
 
Firearms. Expressly rejecting Division II’s prior decision in State v. Pierce,155 Wn. App. 701, 230 P.3d 237 (2010), the Court now holds that a  jury is not required to find that the gun the defendant possessed was operable for it to be considered a “firearm” under former RCW 9.41.010(9) (2015).   State v. Olsen, COA No. 51531-8-II (Oct. 8, 2019).
 

First Circuit

Authentication of Photographs from Facebook Pages.  When the question is the authenticity of photographs found on a social media page, rather than the authenticity of the Facebook page, the ordinary rules of authentication apply.  As noted by the Sixth Circuit, “it is not at all clear . . . why our rules of evidence would treat electronic photos that police stumble across on Facebook one way and physical photos that police stumble across lying on a sidewalk a different way.” United States v. Farrad, 895 F.3d 859, 879-80 (6th Cir. 2018).  State v. Vázquez-Soto, No. 17-1879 (1st Cir. Oct. 1, 2019).
 

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests.  The online training sessions are of high quality and are applicable to prosecuting attorneys.  The April 2019, May 2019, and June 2019 trainings are now posted.
 

Legal Update for Washington State Law Enforcement

The September 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.
 
WEEKLY ROUNDUP FOR OCTOBER 4, 2019

Washington Supreme Court

Juvenile Manifest Injustice Sentences.  A juvenile offender’s need for treatment is not an appropriate basis for imposing a manifest injustice disposition above the standard range. A juvenile’s need for services typically does not impose a serious, and clear danger to society.  State v. B.O.J., No. 95542-5 (Oct. 3, 2019).  Dissenters were Justices Madsen and Stephens.  Justice González wrote a concurring opinion that takes issue with language used in the juvenile probation counselor’s report.  State was represented by former King County DPA Samuel Dinning.
 
 The Supreme Court granted review of the following cases on October 2, 2019:
 

Offender Score.  State v. Haggard, No. 97375-0.  King County.  Issue: “In 2010, a court of limited jurisdiction entered judgment against petitioner for the misdemeanor crime of disorderly conduct. Pursuant to statute, said court deferred its sentence and subsequently allowed petitioner to withdraw his guilty plea before dismissing the charge later that year. At sentencing in the instant matter, the trial court included the dismissed charge in petitioner’s criminal history — thereby precluding the washout of three felonies — because he had not also moved to withdraw his misdemeanor plea and dismiss the charge pursuant to a separate statute. Did the Court of Appeals err in its construction of the Sentencing Reform Act’s “washout” statute thereby contravening this Court’s analysis of the identical issue as it pertained to an analogous felony deferred sentence statute in In re Carrier, 173 Wn.2d 791, 806-07, 272 P.3d 209 (2012)?”   COA opinion reported at 9 Wn. App. 2d 98 (2019).  Petition for review available here.

Contempt. Gronquist v. King Co. Pros. Daniel Satterburg, No. 97277-0.  King County– Prosecutor Satterberg’s petition for review.  May a court order a party to pay “for any losses suffered by the party as a result of the contempt and any costs incurred in connection with the contempt proceeding, including reasonable attorney’s fees,” when no remedial sanctions were ever available to the moving party under RCW 7.21.030(2) and criminal/punitive sanctions cannot be obtained by a private party?  COA opinion is unpublished.  Petition for review documents available here.

 
Intoxication Defense and Tort Cases.  Gerlach v. The Cove Apts., No. 97325-3. Issues: “In a civil case in which the defendant invokes RCW 5.40.060’s intoxication defense and the plaintiff admits she was intoxicated when she was injured, does a trial court have the discretion to exclude the result of a hospital blood draw that did not comply with the State toxicologist’s standards for a blood alcohol concentration test (“BAC”) under RCW 46.61.506, as well as expert testimony based on that unverified result? The defendant was able to and did argue that the plaintiffs admitted intoxication caused her injury when she fell over the rotten second-story balcony railing of defendant’s apartment complex. The jury, which was instructed to consider plaintiffs voluntary intoxication, necessarily did so in allocating fault to the plaintiff. Was the trial court’s exclusion of the unverified results of a hospital blood draw so prejudicial that defendant is entitled to a new trial based on this claimed evidentiary error?”  COA opinion is reported at 8 Wn. App. 2d 813 (2019).
 

Washington State Attorney General’s Office

Outside Counsel. The consent of the county prosecuting attorney is required for the appointment of outside counsel to represent the county under a joint self-insurance program. AGO 2019 No. 4 (Sep. 30, 2019).
 

National District Attorneys Association

The Role of the Prosecutor.  New video explains the role of a prosecutor and their work within the community.
WEEKLY ROUNDUP FOR SEPTEMBER 27, 2019

Washington Supreme Court

Public Records Act.  A trial court’s determination regarding agency bad faith in determining what penalty should be awarded in a Public Records Act case is reviewed for abuse of discretion.  The overall penalty assessment is also reviewed for abuse of discretion.  The low penalty imposed in the instant case “was commensurate with the County’s PRA violation and sufficient to deter future violations.”  Hoffman v. Kittitas County, No. 96286-3 (Sep. 26, 2019).  Kittitas County was represented by Kittitas County Prosecuting Attorney Greg Zempel.
 
Inventory Searches, Automatic Standing, and Stolen Vehicles.  Persons found in possession of a stolen vehicle  have automatic standing under article I, section 7 to challenge the search of that vehicle.  Closed containers, other than items that “possess the same aura of privacy as a purse, shaving kit, or personal luggage” and locked containers, may be opened  during an inventory search of a stolen vehicle .  The search, of course, must not be used as a pretext for an investigatory search.   State v. Peck, No. 96069-1 (Sep. 26, 2019). Justices Gordon McCloud, Madsen, Yu, and Chief Justice Fairhurst dissented.  The State was represented by Kittitas County DPA Carole Highland. 
 
Conditions of Community Custody.  A community custody condition which stated that “The defendant shall not loiter in nor frequent places where children congregate such as parks, video arcades, campgrounds, and shopping malls,” is not unconstitionally vague. The condition need not be accompanied by an exclusive list of specific prohibited places.  State v Wallmuller, No. 96313-4 (Sep. 26, 2019).  Justices Wiggins, Johnson, Gordon McCloud and Yu dissented. The State was represented by Mason County DPA Tim Higgs.


Division Two

Retroactivity of Houston-Sconiers. A collateral attack seeking resentencing on the grounds that the sentencing court failed to consider the mitigating qualities of youth as required by State v. Houston-Sconiers, 188 Wn.2d 1 (2017), is subject to the one-year time limit imposed by RCW 10.73.090.  Such a claim does not fall within RCW 10.73.100(6)’s significant change in the law that should be applied retroactively.   Personal Restraint of Marshall, COA No. 49302-1-II (Sep. 24, 2019).
WEEKLY ROUNDUP FOR SEPTEMBER 20, 2019

Washington Supreme Court

Development Permits and Damages.  A claim for damages under RCW 64.40.020 for an attempted exaction of land through an unlawful permit condition may be obtained when the municipality should reasonably have known the final decision imposing the unlawful condition was unlawful or in excess of lawful authority.  Only evidence or justifications that were tendered to the final decision maker may be considered when determining whether the municipality knew or should reasonably have known that the hearing examiner’s decision did not satisfy a Nollan and Dolan analysis.  Church of the Divine Earth v. City of Tacoma, No. 96613-3 (Sep. 19, 2019). Justice Yu and Chief Justice Fairhurst dissented.

Division Two

Public Records Act.  Former RCW 42.56.520(3) required an agency to provide an estimate of when it would provide the first installment of records, not when it would fully respond to the request.  An agency must also provide a time estimate for each subsequent installment. An agency’s response that states only a date by which the agency will give an estimate for when the first installment of records will be produced does not comply with former RCW 42.56.520(3).  Health Pros Northwest, Inc. v. State, COA No. 52135-1-II (Sep. 17, 2019). [Editor’s note: Current RCW 42.56.520(1)(c) is essentially the same as former RCW 42.56.520(3).]

Division Three

Conditions of Community Custody. For an objection to a community custody condition to be entitled to review for the first time on appeal, it must (1) be manifest constitutional error or a sentencing condition that is “illegal or erroneous” as a matter of law, and (2) it must be ripe.  Under this test the following claims will not be reviewed for the first time on appeal: (a) lifetime no-contact order; (b) delegation of authority to CCO to approve dating relationship; (c) crime relatedness of a condition; and (d) employer notification requirement.  The following terms and/or conditions are not unconstitutionally vauge: (a) “community protection zone” restriction as both “private school” and “public school” are defined by statute; (b) “minor” as relevant statutes define the term as “any person under eighteen years of age;” and (c) “sexually explicit.”  State v. Peters, COA No. 31755-2-III (Sep. 17, 2019).

 

Ninth Circuit

Cell Phones.  Law enforcement officers may validly seize cell phones found in a wrecked car during an inventory search where the inventory search was not conducted in bad faith or for the sole purpose of investigation.  The contents of such phones, however, may not be accessed without a lawfully issued search warrant.  United States v. Garay, No. 18-50054 (9th Cir. Sep. 17, 2019).
 Inventory Searches.  An officer’s failure to complete the inventory form does not invalidate an inventory search.   Administrative errors will only invalidate an inventory searches when there is  something to suggest the police raised the inventory-search banner in an after-the-fact attempt to justify a simple investigatory search for incriminating evidence.  United States v. Garay, No. 18-50054 (9th Cir. Sep. 17, 2019).
 
Inventory Searches.  An officer’s failure to complete the inventory form does not invalidate an inventory search.   Administrative errors will only invalidate an inventory searches when there is  something to suggest the police raised the inventory-search banner in an after-the-fact attempt to justify a simple investigatory search for incriminating evidence.  United States v. Garay, No. 18-50054 (9th Cir. Sep. 17, 2019).
WEEKLY ROUNDUP FOR SEPTEMBER 13, 2019

Washington Supreme Court

Self-Incrimination. The State may not admit into evidence a detention center inventory form that the defendant signed after invoking her Miranda rights. Admission of the form was prejudicial manifest constitutional error that could be asserted for the first time on appeal. State v. A.M., No. 96354-1 (May 28, 2019). Justices Gordon McCloud and González concurred in the result but expressed a belief that strict liability for simple drug possession violates due process. The State was represented by Snohomish County DPA J. Scott Halloran.

Community Caretaking. The test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search is multi-part:

      (1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.

      (2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.

      (2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.”

The officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 because their emergency aid function search was a pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit. When an officer makes a warrantless entry with suspicions that a crime has been committed, the entry must be tested under the “exigent circumstances exception to the warrant requirement.”

The Washington Supreme Court declined to adopt a new rule permitting law enforcement officers to make warrantless searches of homes under the community caretaking exception in order to recover decomposing bodies. [Editor’s note: If police have probable cause to believe a decomposing body or corpse is in a home the search warrant application may allege a violation of RCW 68.50.020 (failure to notify coroner of the existence and location of human remains). The warrant application will need to include a statement about contacting coroner or medical examiner’s office and that they had no record of a death reported at the address to be searched.].

State v. Boisselle, No. 95858-1 (Sep. 12, 2019). Justices Stephens, González, Johnson and Wiggins dissented. State represented by Pierce County DPA Mark Von Wahlde.

Gifts of Public Funds. Municipal officers did not violate the Washington State Constitution’s prohibition on gifts of public funds by paying well above the assessed value to acquire real property for conversion into a “pocket park.” The mayor’s use of town-owned lots to park his vehicles was insubstantial and thus legally insufficient to support a recall election where there was no evidence that the mayor sought to exclude others from using the town-owned lots and the lost was also avaialbe for use by local residents and visitors. Recall of Burnham, No. 96839-0 (Sep. 12, 2019). Justices González, Gorden McCloud, and Wiggins all dissented on the grounds that paying an inflated purchase price for real property out of a desire to give a gift of part of the sale price is a recallable allegation.

Division Three

Plea Agreements and Guilty Pleas. Under current statute and rules, a court must afford a defendant the opportunity to enter a guilty plea to an original charge regardless of the merits of the defendant’s plea agreement. A defendant, however, may not plead guilty post-arraignment in order to fend off an enhanced charge. Respect for constitutional separation of powers requires the trial court to defer to the State’s tenable position that its plea agreement was consistent with prosecutorial standards. State v. Westwood, COA No. 35792-9-III (Sep. 12, 2019). Judge Korsmo dissented.

American Bar Association

Judicial Relationships and Recusal. “Rule 2.11 of the Model Code of Judicial Conduct identifies situations in which judges must disqualify themselves in proceedings because their impartiality might reasonably be questioned—including cases implicating some familial and personal relationships—but it is silent with respect to obligations imposed by other relationships. This opinion identifies three categories of relationships between judges and lawyers or parties to assist judges in evaluating ethical obligations those relationships may create under Rule 2.11: (1) acquaintanceships; (2) friendships; and (3) close personal relationships. In short, judges need not disqualify themselves if a lawyer or party is an acquaintance, nor must they disclose acquaintanceships to the other lawyers or parties. Whether judges must disqualify themselves when a party or lawyer is a friend or shares a close personal relationship with the judge or should instead take the lesser step of disclosing the friendship or close personal relationship to the other lawyers and parties, depends on the circumstances. Judges’ disqualification in any of these situations may be waived in accordance and compliance with Rule 2.11(C) of the Model Code.” ABA Formal Opinion 488 (Sep. 5, 2019).

WEEKLY ROUNDUP FOR SEPTEMBER 6, 2019

Washington Supreme Court

Public Records Act. The “scope of employment” test from Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015), applies only to records created or stored on an employee’s personal device and does not extend to records on public agencies’ e-mail servers. But, an email is not a public record solely because it was sent through an agency account. Only e-mails that contain information relating to the conduct of government or the performance of any governmental or propriety function, even if not sent or received within the scope of employment, are subject to disclosure. Service Employees International Union Local 925 v. University of Washington, No. 96262-6 (Sep. 5, 2019).

This week the Court agreed to hear the following cases:

Self-Defense. State v. Grott, No. 97183-8. Pierce County – State’s Petition. “Petition for review granted; review of issue raised in answer also granted” Issues: May a defendant’s charged conduct be considered in assessing whether to give a first aggressor instruction? Is a trial court’s decision to give a first aggressor instruction a manifest error of constitutional magnitude that may be raised for the first time on appeal? Did the defendant’s trial counsel provide ineffective assistance of counsel by not objecting to the first aggressor instruction in the trial court? COA opinion is unpublished. Petition for review pleadings available here. (State represented by Kristie Barham).

County Clerks and Local Court Rules. The Judges of the Benton and Franklin Counties Superior Court v. Killian, No. 96821-7 Franklin County–Clerk’s Appeal. Issues: Do superior court judges exceed their authority by enacting a local rule that conflicts with both statutes and the rules of this Court? Do superior court judges unconstitutionally diminish the office of county clerk through the adoption of a local rule that strips the clerk of his authority to replace paper records with electronic reproductions? Must judges establish through clear, cogent, and convincing evidence that the superior court cannot fulfill its duties without duplicate paper files before compelling the county clerk to comply with a local rule for which no appropriation has been made? Must the writ of mandamus, which strips the county clerk of discretion and compels him to maintain paper records despite the absence of an appropriation to do so, be vacated?

Arbitration. Jeoung Lee v. Evergreen Hosp. Med. Ctr., No. 97201-0. “Petition for review granted; motion to withdraw denied without prejudice to renew in trial court.” Issue: Whether the hospital’s motion to compel arbitration in a putative class action suit was properly denied because, on its face, the collective bargaining agreement between the nurses’ union and the hospital did not waive union members’ abilities to enforce their statutory rights in a judicial forum. COA opinion reported at 7 Wn. App. 2d 566 (2019). Petition for review pleadings available here.

Legal Update for Washington State Law Enforcement

The August 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR AUGUST 30, 2019

Division One

CrR 8.3(b) Motions. The denial of a post-judgment CrR8.3(b) motion, moreover, is not appealable as a matter of right. CrR 8.3(b) does not authorize post-judgment motions to dismiss. A post-judgment motion filed under CrR 8.3(b) should be treated as a collateral attack pursuant to CrR 7.8. Such a challenge is subject to the time limit set forth in RCW 10.73.090. State v. Basra, COA No. 78282-7-I (Aug. 26, 2019).

Community Custody Violations. A defendant who is charged with a violation of community custody conditions for a crime committed prior to July 1, 2000, is not denied equal protection because he does not receive the same procedural benefits as offenders who committed their underlying crime after July 1, 2000. State v. McClinton, COA No. 78076-0-I (Aug. 26, 2019).

Workplace Injuries. The Industrial Insurance Act does not divest the superior court of subject matter jurisdiction over a worker’s tort claim against his or her employer. The question of employer immunity from actions for workplace injuries, therefore, may not be the basis for a CR 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Instead, the employer immunity claim must be brought pursuant to a CR 12(b)(6) motion for failure to state a claim upon which relief can be granted or via a motion for summary judgment. Boudreaux v. Weyerhaeuser Co., COA No. 78284-3-I (Aug. 26, 2019).

Division Two

Exceptional Sentences. The trial judge was precluded from imposing an exceptional sentence for on-going pattern of sexual abuse of a victim, RCW 9.94A.535(3)(g), where the charging document and jury instructions alleged the aggravator found at RCW 9.94A.535(3)(h)(i) and both omitted the statutory element that the offense(s) involved “domestic violence” as defined in RCW 10.99.020 or “stalking” as defined in RCW 9A.46.110. State v. Butterfield, COA No. 51519-9-II (Aug. 27, 2019).

Division Three

Controlled Substance Violations. The to-convict instruction’s failure to identify the specific controlled substance possessed by the defendant requires remand for imposition of a misdemeanor sentence. State v. Barbarosh, COA No. 36010-5-III (Aug. 29, 2019).

Closing Argument. The prosecutor’s unobjected to rebuttal argument, which included a review of the circumstantial evidence that concluded with the phrase “I’m satisfied,” did not constitute reversible error as any resulting prejudice from the brief comment could have been cured by a timely objection. Counsel’s failure to object to the comment, which did not incite the jury’s passion, did not prejudice the defendant to an extent that changed the result of the trial. State v. Barbarosh, COA No. 36010-5-III (Aug. 29, 2019).

Sentencing. Trial judge committed reversible error by denying the defendant’s request to continue the sentencing hearing from the day after return of verdict to provide the defendant with sufficient time to prepare her mitigation evidence. Trial judge erred by denying the defendant’s request for preparation of a presentence report, when the defendant was being sentenced in the superior court for an offense committed prior to her 18th birthday. State v. Alltus, COA No. 34677-3-III (Aug. 22, 2019) This partially published opinion replaces the unpublished opinion filed July 3, 2019.

Tennessee Supreme Court

RPC 3.8. Formal Ethics Opinion 2017-F-163 of the Board of Professional Responsibility is vacated. A prosecutor’s ethical duty under Rule 3.8(d) is coextensive in scope with a prosecutor’s legal obligations under Brady v. Maryland, 373 U.S. 83 (1963). A disclosure of material is “timely” under RPC 3.8(d) if the disclosure is made at a time that is consistent with a prosecutor’s constitutional obligations. In re Petition to Stay the Effectiveness of Formal Ethics Opinion 2017-F-163 (Aug. 23, 2019). [Editor’s note: This opinion reduces the split regarding the interpretation of RPC 3.8(d). The New York City Bar Ethics Committee issued an opinion holding that prosecutors’ duty to disclose is broader than the duty imposed by Brady v. Maryland. Courts or Ethics Committees have also decided the the duty under rules of professional conduct is broader in Utah, Texas, North Dakota, Massachusetts and the District of Columbia. Courts or Committees have decided otherwise in Ohio, Oklahoma, Colorado, Louisiana, and Wisconsin. The Washington State Bar Association has not issued an ethics opinion on this topic. The Washington Supreme Court, however, indicated in State v. Davila, 184 Wn.2d 55, 79 n. 9 (2015), that the ethics rule imposes a broader duty upon prosecutors then does the constitution.]

WEEKLY ROUNDUP FOR AUGUST 23, 2019

Division One

Vehicular Assault. Because vehicular assault committed by the alternative means of reckless manner and by the alternative means of disregard for the safety of others are alternative means of committing the same crime, not separate crimes, disregard for the safety of others is not a lesser-included offense of reckless manner. Defendant, who requested that the jury be instructed on the uncharged alternative means of disregard for the safety of others, cannot object that he did not receive notice of the charge. State v. Downey, COA No. 78004-2-I (Aug. 19, 2019).

Domestic Violence. Statements the non-testifying victim made to health care providers that were admitted pursuant to ER 803(a)(4), in conjunction with a certified copy of the defendant’s driver’s license, and a redacted certified copy of the no contact order, was sufficient to establish that the defendant committed the crime of misdemeanor violation of the no-contact order. Questions asked of the officer about what he did during the investigation did not violate the confrontation clause, as the officer did not make any reference to what the victim said in response to the questions the officer asked. Sufficient evidence, however, does not support the conviction for assault in the second degree in violation of RCW 9A.36.021(1)(a), as the State did not prove beyond a reasonable doubt that the defendant recklessly inflicted substantial bodily harm during an intentional assault. While the severity of the injury to the victim’s finger supports finding the infliction of substantial harm to the victim, it does not support finding that the defendant “acted recklessly in inflicting those injuries. The information charging the defendant with felony violation of a protection order provided notice to the defendant that he could be convicted of a misdemeanor violation of RCW 26.50.100, as misdemeanor violation of a no-contact order is a lesser included offense of felony violation of a no contact order. See RCW 10.61.006. State v. Melland, COA No. 76617-1-I (Aug. 19, 2019). This opinion replaces the May 6, 2019, opinion.

Involuntary Treatment Act. CR 43’s good cause standard for permitting video testimony of witnesses does not apply to 14-day Involuntary Treatment Act hearings. The ITA statute, RCW 71.05.020(24), only requires a showing of “good cause under compelling circumstances” before a witness is permitted to appear remotely by some means other than video. J.H. v. State, COA No. 78735-7-I (Jul. 15, 2019, publication ordered Aug. 14, 2019).

Code Enforcement. Code enforcement action taken against a property owner who systemically filled in and destroyed regulated wetlands on their property upheld against claims of due process violations, insufficient evidence, and vagueness. Miller v. City of Sammamish, COA No. 78528-1-I (Aug. 19, 2019).

Division Two

Prosecutorial Error. A defendant, who did not object at trial to a prosecutor’s statements in closing argument that alluded to the defendant’s constitutional rights, is only entitled to a new trial upon a showing that (1) no curative instruction would have obviated any prejudicial effect on the jury and (2) the misconduct resulted in prejudice that had a substantial likelihood of affecting the jury verdict. The defendant waived his claim that the prosecutor impermissibly commented on the defendant’s exercise of the right to testify when the prosecutor argued the defendant testified in order to explain the DNA evidence in the case. While the statement was improper, they were not so flagrant and ill intentioned that the resulting prejudice could not be cured with a jury instruction. It was not improper for the prosecutor to attack the defendant’s credibility by discussing the significant differences between the defendant’s testimony and his initial statements. Prosecutor’s 9/11 weapon argument was improper but not so flagrant and ill intentioned that the resulting prejudice could not have been cured with a jury instruction. A prosecuting attorney does not “argue facts not in evidence” by discussing evidence that the State in good faith anticipates presenting at trial that is ultimately unsupported by the evidence at trial. A prosecuting attorney does not state a personal belief as to the credibility of a witness by arguing that the victim’s story had been consistent from first report to courtroom testimony. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).

Consent Jury Instruction. The trial court properly rejected the defendant’s proposed consent instruction as the State was already required to prove lack of consent as part of its burden in proving forcible compulsion in a prosecution for first degree rape. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).

Persistent Offender. Defendant’s mandatory sentence of life without the possibility of release does not violate article I, section 14 of the Washington Constitution based upon his age when he committed his first sex offense. State v. Teas, COA No. 51098-7-II (Aug. 20, 2019).

Restraints. The trial court violated the defendant’s constitutional right to due process by failing to perform an individualized inquiry into the need to restraint the defendant at pretrial proceedings, instead adopting the jail’s policy until a video conferencing system could be adopted. The trial court also erred by requiring the defendant to wear a leg restraint during the jury trial without conducting an individual inquiry into the need to restrain him. Both errors, however, were harmless. State v. Jackson, COA No. 51177-1-II (Aug. 20, 2019).

Growth Management Act. Service of a petition for judicial review to the Growth Management Hearings Board by e-mail does not satisfy the service requirements of the Administrative Procedure Act (APA), chapter 34.05 RCW. Service on the Board requires actual delivery to the agency’s office. Delivery is not completed on the date the petition is placed in the United States mail. Annexation of land by a city prevents a county from taking actions regarding the annexed land to resolve the Board’s ruling of invalidity, thus the Board’s determination of invalidity cannot have any legal effect. Clark County v. Friends of Clark County, COA No. 50847-8-II (Aug. 20, 2019).

Truancy. A school district must perform the mandatory WARNS assessment and providing approved best practice or research-based intervention consistent with the WARNS profile for middle and high school students and before filing a truancy petition. Chimacum School District v. R.L.P., COA No. 51327-7-II (Aug. 20, 2019).

Division Three

Subject Matter Jurisdiction and Standing. This case contains an excellent discussion of subject matter jurisdiction of trial courts and standing. The case identifies the conflicting cases and provides a resolution that is sound. In re Estate of Reugh, COA No. 35737-6-III (Aug. 20, 2019).

Ninth Circuit

Regulatory Traffic Laws. A state cannot enforce its regulatory traffic laws against tribal members’ conduct inside a reservation. A member Indian who receives a citation for a violation of a regulatory traffic law may bring a 42 U.S.C. § 1983 action against state officers. The tribe, however, does not have a § 1983 claim. Chemehuevi Indian Tribe v. Bunim, No. 17-56791 (9th Cir. Aug. 19, 2019).

WEEKLY ROUNDUP FOR AUGUST 9, 2019 & AUGUST 16, 2019

Washington Supreme Court

Persistent Offenders. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison without the possibility of parole for fully developed adult offenders who committed one of their prior strikes as young adults. The sentences imposed on all three defendants are proportional under the Fain factors. State v. Moretti, No. 95263-9 (Aug. 15, 2019). State represented by Grays Harbor County DPA Erin Riley, King County DPA Donna Wise, and Spokane County DPA Brian O’Brien (ret.) and Larry Steinmetz. Justices Yu, Madsen, and González concurred in an opinion that expressed increasing discomfort with sentences of life without the possibility of parole.

Competency. The proper standard of review of a trial court’s failure to sua sponte order a competency evaluation of a defendant is abuse of discretion. The trial court did not abuse its discretion by not sua sponte ordering a third competency hearing after a jury determined that the defendant was competent and the defendant, despite some delusions, appeared coherent throughout trial, did not engage in irrational behavior or outbursts, and had the ability to recall facts, communicate with his attorney, and understand the ramifications and consequences of the crime. State v. McCarthy, No. 96653-2 (Aug. 8, 2019). State represented by Spokane County DPA Gretchen Verhoef.

Independent Prosecutors. A prosecuting attorney has no duty under RCW 36.27.020 to represent the plaintiff county official in a civil lawsuit against another county official. Superior court judges may not appoint an independent prosecutor pursuant to RCW 36.27.030 when a prosecuting attorney has no duty to represent the party in the given matter. Entry of an order appointing an independent prosecutor pursuant to RCW 36.27.030 must occur in open court. Prosecuting attorneys have a cognizable interest in protecting their responsibilities from usurpation to entitle them to notice and an opportunity to be heard before an independent prosecuting attorney is appointed pursuant to RCW 36.27.030. A prosecuting attorney may revoke an RCW 36.27.040 appointment of a special deputy prosecuting attorney at will. In re Appointment of Special Deputy Prosecuting Attorney, No. 95945-5 (Aug. 8, 2019).

Division One

Sex Offender Registration. RCW 9A.44.128(10)(h), to the extent it imposes a duty to register as a sex offender based on an out-of-state conviction for which there is no comparable Washington crime, is an unconstitutional delegation of the legislative function to another state. State v. Batson, COA No. 78341-6-I (Aug. 12, 2019).

Prior DUI Sentencing Enhancement. A jury must decide whether a defendant’s prior reckless driving conviction qualifies as a “prior offense” under RCW 46.61.5055, before a court may add an additional two years to the standard range pursuant to RCW 9.94A.533(7). The question for the jury on remand is not whether the prior offense involved drugs or alcohol. The only questions for the jury on remand is whether the reckless driving offense was originally charged as a DUI. The 2016 amendment to RCW 9.94A.533(7) regarding the imposition of consecutive prior DUI sentencing enhancements was a clarifying amendment that applies retroactively to defendants who committed his crime prior to the amendment’s effective date. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).

Warrantless Blood Draws. Exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault, where the driver sustained serious injuries that required treatment, multiple responders smelled alcohol on the driver, the driver told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).

Restitution. The defendant’s failure to challenge the restitution order in the trial court on the grounds that the record did not establish a causal connection between the vehicular assault victim’s medical expenses and the injuries caused by the crash, precludes appellate review as the defendant’s objection does not challenge the trial court’s jurisdiction to order restitution. The testimony at trial describing most of the vehicular assault victim’s injuries and treatments, which stated critical dates and which was augmented with a detailed claim summary and diagnoses sheet established a sufficient causal connection between the victim’s medical expenses and his injuries resulting from the collusion. State v. Anderson, COA No. 76672-4-I (Aug. 5, 2019).

Cell-Site Location Information. A person has an expectation of privacy in cell-site location information (CSLI) records. The State must utilize search warrants, not subpoenas, to obtain CSLI records from a wireless carrier. The State must connect the information it has legally obtained to the need for the suspect’s CSLI records. State v. Phillip, COA No. 77175-2-I (Aug. 5, 2019). [This opinion replaces the opinion previously issued in this case on July 1, 2019.]

Appearance of Fairness and Judicial Recusal. The appearance of fairness doctrine was violated by having members of the county superior court preside over a parental termination case after the parents asserted breaches of confidentiality, lying, and bias by the volunteer GAL, and the head superior court administrator and the civil DPA who was appointed to represent both the volunteer GAL program and the superior court meddled in the discovery process and threatened to take legal action against the parents for filing evidence in a termination case that was pending before a judge of the same court. Once a judge has recused, the judge may take no other action in the case except for the necessary ministerial acts to have the case transferred to another judge. A recused judge may not sign an order that conforms to the judge’s prior oral rulings. Dependency of A.E.T.H., COA No. 76964-2-I (Aug. 12, 2019).

Division Two

Courtroom Security. Before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, and (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant. The trial court cannot rely solely on the security officer’s preference. A court’s failure to engage in the required analysis will require reversal on direct appeal unless the State can show harmlessness beyond a reasonable doubt. State v. Gorman-Lykken, COA No. 5124-8-II (Aug. 13, 2019). Judge Melnick concurred finding that other errors, including several improper statements by the prosecutor in closing argument, also merited reversal.

Bail. CrR 3.2 does not require a court to make oral or written findings before imposing bail. It was an abuse of discretion to set bail at $60,000 for a defendant who had a prior escape conviction, several failures to appear in Oregon cases, no employment tying him to the community, no one who vouched for him, mental health issues, a prior assault conviction, was currently on probation for prior offenses, and had engaged in prior acts of domestic violence against the victim, without first considering less restrictive conditions of release and the defendant’s financial resources. State v. Ingram, COA No. 50577-1-II (Aug. 6, 2019).

Violation of Foreign Protection Orders. The validity of the foreign protection order is not an element of the offense of violation of a domestic violence court order under RCW 26.50.110(1)(a). The court, as part of its gate-keeping function, should determine as a threshold matter whether the order alleged to be violated is applicable and will support the crime charged. Orders that are not applicable to the crime should not be admitted. If no order is admissible, the charge should be dismissed. State v. Ingram, COA No. 50577-1-II (Aug. 6, 2019).

Public Records Act. A requester can seek judicial review of an agency’s estimate of the time needed to respond to a PRA request prior to the agency taking final action. Whether an estimate is reasonable must be based upon a forward-looking evaluation at the time of the estimate, not on a backward-looking evaluation after the fact. A 30-day estimate of the time needed to assemble requested records from multiple different offices was reasonable under former RCW 42.56.520, where the agency received over 50 PRA requests on the same day. An agency can produce records to an affected party before producing them to the original requester without violating the prohibition against distinguishing among persons requesting records. Freedom Foundation v. DSHS, COA No. 51498-2-II (Aug. 6, 2019).

Conditions of Community Custody. The trial court did not abuse its discretion by prohibition a defendant who was convicted of unlawful manufacture of a controlled substance and unlawful possession of a controlled substance with intent to deliver, from having contact with known drug users/sellers outside of a treatment setting and from possessing or consuming medical marijuana under the Medical Use of Cannabis Act, ch. 69.15A RCW. The condition that prohibits the defendant from “associating with ‘known drug users/sellers, except in treatment settings’” is not unconstitutionally vague. The term “known” limits the condition’s reach to people known by the defendant to be drug users/sellers. State v. Houk, COA No. 51201-7-II (Aug. 6, 2019).

DNA Collection Fee. A trial court may only impose a DNA collection fee upon a repeat offender where the State establishes that the offender’s DNA has not been previously collected. State v. Houk, COA No. 51201-7-II (Aug. 6, 2019).
Division Three

Wrongful Conviction Claims. Individuals who previously established their right to assert a claim under Washington’s “Wrongfully Convicted Persons Act” (WCPA), are not entitled to compensation after settling a federal lawsuit under 42 U.S.C. § 1983, arising from the same criminal prosecution. Remedies and compensation under the WCPA are exclusive. Larson v. State, COA No. 35649-3-III (Aug. 15, 2019).

Attorney General’s Office

Public Records Act. A request for access to an alphabetical listing of personal property owners constitutes a request for a list of individuals which must be denied under RCW 42.56.070(8) if the request is for a commercial purpose. In addition, RCW 42.56.080 requires a county assessor in appropriate circumstances to investigate whether a list of personal property owners is requested for a commercial purpose, which may include investigating whether a request for a list of real property is in fact a request for a list of individuals for a commercial purpose. AGO 2019 No. 3 (Aug. 1, 2019).

Legal Update for Washington State Law Enforcement

The July 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Missouri Supreme Court

Prosecutor Discipline. Assistant circuit attorneys’ law licenses were suspended for lengthy periods of time for for multiple violations of the rules of professional conduct in relation to their dishonesty about and concealment of a brutal assault of a suspect in custody by a police detective and the charges resulting therefrom filed by their friend and co-assistant circuit attorney. Rules violated include RPC 8.4(c), 8.4(d), 8.4(g), and 1.13. The RPC 1.13 violation is due to assistant circuit attorney’s failure to report another circuit attorney’s misconduct to a supervisor. In re Schuessler, No. SC97376 (Aug. 13, 2019).

WEEKLY ROUNDUP FOR AUGUST 2, 2019

Washington Supreme Court

Confrontation Clause. The primary purpose test governs a courts’ analysis of hearsay statements made to both governmental and nongovernmental witnesses. Shafer’s declarant-centric test, Sandoval’s three-factor test, and Hurtado’s synthesis of the two have all been superseded by the primary purpose test. A crime victim’s statements to his medical providers were nontestimonial because they were not made with the primary purpose of creating an out-of-court substitute for trial testimony. The fact that a victim signs waivers allowing the police to obtain his medical records does not alter the primary purpose of the interactions. State v. Scanlan, No. 95971-4 (Aug. 1, 2019). Justice Gordon McCloud authored a concurring opinion. King County DPA Ann Summers represented the State.

Division One

Juvenile Disposition Appeals. First-time juvenile offender’s manifest injustice sentence vacated and the matter remanded for entry of a standard disposition due to the prosecutor’s failure to obtain the proper entry of necessary findings of fact and conclusions of law. State v. I.N.A., COA No. 79587-2-I (Jul. 29, 2019).

Conflicts. In resolving conflict questions, the official comments to the Rules of Professional Conduct will prevail over pre-2006 appellate court decisions. Plein v. USAA Casualty Insurance Co., COA No. 78190-1-I (Jul. 29, 2019).

Administrative Office of the Courts

The Administrative Office of the Courts has published new and updated forms on the Washington Court Forms website. These forms are available at: Washington Court Forms Homepage: https://www.courts.wa.gov/forms/

List of All Forms: https://www.courts.wa.gov/forms/?fa=forms.static&staticID=14

The Washington Pattern Forms Committee and its subcommittees created new forms and updated existing forms to address changes in the law from the 2019 legislative session and the feedback provided by court form users. Some forms were also removed from the court form website because they were no longer supported by current law. A summary of changes to the forms may be found at: http://www.courts.wa.gov/forms/?fa=forms.static&staticID=2

Any feedback or questions about the forms can be provided to the Washington Pattern Forms Committee by submitting a Comment on Forms.

Ninth Circuit

Conditions of Supervised Release. A special condition that provided the sex offender “shall not frequent any place whose primary purpose is to sell, rent, show, display, or give other forms of access to, material depicting and/or describing sexually explicit conduct,” is not unconstitutionally over-broad or vague. This prohibition was accompanied by definitions for “sexually explicit conduct” and “sexually stimulating depictions”:

“any material depicting and/or describing sexually explicit conduct involving adults, defined as sexually stimulating depictions of adult sexual conduct that are deemed inappropriate by the defendant’s probation officer”. . . “sexually stimulating depictions” include “computer images, pictures, photographs, books, writings, drawings, videos, or video games depicting such conduct.”

Under dictionary definitions of “frequent,” a defendant does not violate this condition by visiting an adult-themed business only once. United States v. Ochoa, No. 18-10383 (9th Cir. Jul. 29, 2019).

U.S. Citizenship and Immigration Services (USCIS)

U Visas. The guide includes an overview of: (1) The U visa certification process; (2) Best practices for certifying agencies and officials; (3) Answers to frequently asked questions from judges, prosecutors, law enforcement agencies and other officials; (4) DHS contact information for certifying agencies on U visa issues; and (5) Training resources and opportunities. A separate T Visa guide will issue shortly. U.S. Department of Homeland Security, U Visa Law Enforcement Resource Guide: For Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors, Judges, and Other Government Agencies (2019).

WEEKLY ROUNDUP FOR JULY 26, 2019

Division One

Child Support Obligations. The Ontario, Canada child and spousal support order may be registered in Washington and enforced pursuant to the Uniform Interstate Family Support Act. The Canadian order, which does not automatically terminated spousal support upon the recipient’s remarriage, does not contravene Washington public policy. Brett v. Martin, COA No. 79076-5-I (May 20, 2019, publication ordered July 22, 2019).

Community Caretaking. Officers, who were aware of the opioid crisis and the large number of heroin overdoses in their community, improperly opened the doors of the defendant’s vehicle without first trying to rouse the sleeping occupants. Suspected unconsciousness alone, without any evidence inside the car suggesting drug use, does not support a reasonable, objective belief of a need for immediate assistance. State v. Harris, COA No. 77987-7-I (Jul. 22, 2019).

Ethics Advisory Committee

Judge’s Children. A judge may preside over matters in which an attorney, who is affiliated with the same public defender agency as the judge’s child, is attorney of record. “But the judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.” State of Washington Ethics Advisory Committee Ethics Opinion 19-05 (Jul. 2019).

Ninth Circuit

Warrantless Firearm Seizures. Police officers’ warrantless seizure of firearms from a residence after detaining the plaintiff’s husband for a mental health evaluation in response to a 911 call, did not violate the plaintiff wife’s Fourth Amendment rights. The seizure was justified under a community caretaking function framework under the facts of this case, as the urgency of a significant public safety interest was sufficient to outweigh the significant privacy interest in personal property kept in the home. The officers had probable cause to detain involuntarily an individual experiencing an acute mental health episode and to send the individual for evaluation, they expected the individual would have access to firearms and present a serious public safety threat if he returned to the home, and they did not know how quickly the individual might return. Issue preclusion bars relitigation of the plaintiff wife’s Second Amendment challenge to the forfeiture of the seized firearms. Rodriguez v. City of San Jose, No. 17-17144 (9th Cir. Jul. 23, 2019).

WEEKLY ROUNDUP FOR JULY 19, 2019

Washington Supreme Court

Allegations of Racial Bias During Jury Deliberations. As soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified. As soon as a court becomes aware of allegations that racial bias may have been a factor in the verdict, the court shall take affirmative steps to oversee further inquiry into the matter and instruct counsel not to have any further communications with the jurors unless it is on the record and supervised by the court. The court must tailor the on the record inquiry to the specific allegations presented. The ultimate question for the court is whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict. If there is a prima facie showing that the answer is yes, then the court must hold an evidentiary hearing. State v. Berhe, No. 95920-0 (Jul. 18, 2019). State represented by Dennis McCurdy and Ann Summers. Justice Gordon McCloud filed a concurring opinion in which she opines that defense counsel’s ability to investigate juror conduct is not limited by the majority’s opinion.

No Contact Orders. Old Chief v. United States, 519 U.S. 172 (1997), does not apply to a defendant’s offer to stipulate to a domestic violence no-contact order in a felony violation of a no-contact order prosecution. The probative value of a domestic violence no-contact order far outweighs any danger of unfair prejudice, a no-contact order provides the specific restrictions imposed on a defendant, is closely related to a felony violation of a no-contact order charge, and is evidence of multiple elements of that offense. A trial court may redact any portion of a no-contact
order that poses a risk of unfair prejudice. State v. Taylor, No. 96325-8 (Jul. 18, 2019). State represented by Pam Loginsky and Jodi Hammond.

Division One

Critical Area Regulations. The Growth Management Act does not mandate that local governments consider the protection, against geologically hazardous areas, of the public health and safety when developing critical area regulations. Futurewise v. Snohomish County, COA No. 79663-1-I (Jul. 15, 2019).

Growth Management Hearings Board. The Board has the power to deem arguments abandoned due to inadequate briefing. Citing the GMA in an argument heading is inadequate. The petitioner must explain how the law applies to the facts before the Board and how the local government has failed to comply with the GMA. Futurewise v. Snohomish County, COA No. 79663-1-I (Jul. 15, 2019).

Graduated Income Taxes. No statutory prohibition limits Seattle’s authority to levy a property tax on income because RCW 36.65.030 (Substitute Senate Bill (SSB) 413) is unconstitutional in its entirety for violating the Washington Constitution article II, section 19’s single subject rule. The Washington Constitution, however, bars any graduated income tax. Kunath v. City of Seattle, COA No. 79447-4-I (Jul 15, 2019).

First Circuit

Absolute Prosecutorial Immunity. Deputy prosecuting attorney is not entitled to absolute immunity in a § 1983 action for withholding information about a criminologist’s drug addiction and evidence tampering from the plaintiff, as her decision to withhold evidence lacked a “functional tie” to her prosecutorial role in that specific plaintiff’s criminal case. DPA not entitled to absolute governmental attorney immunity with respect to withholding exculpatory evidence in response to a subpoena duces tecum as she primarily functioned as a custodian of evidence, rather than as an advocate. Penate v. Kaczmarek, No. 18-2261 (Jun. 26, 2019).

New York State Bar Association

Social Media. First released in 2014, the Guidelines are one of the leading resources on a lawyer’s obligations under the rules of professional conduct with respect to social media. While based on New York’s rules, the Guidelines cite to advisory ethics opinions from across the country. Subject matter includes attorney competence, attorney advertising and communications concerning a lawyer’s services, furnishing of legal advice through social media, review and use of evidence from social media, communicating with clients, researching jurors and reporting juror misconduct, and using social media to communicate with a judicial officer. The document also includes an appendix that includes a list of some of the more popular social media platforms, as well as a glossary of social media’s more commonly used words & phrases. Social Media and New Communication Technologies Committee of the Commercial and Federal Litigation Section of the New York State Bar Association, Social Media Ethics Guidelines (Updated Apr. 29, 2019, Released June 20, 2019).

National Judicial College

Science Bench Book for Judges. “It has become ever more apparent that judges must have some understanding of science. This book is a helpful and necessary effort to provide judges with knowledge and techniques that will help them work with scientific subject matter.” U.S. Supreme Court Justice Stephen Breyer. The entire book is available here.

WEEKLY ROUNDUP FOR JULY 12, 2019

Washington Supreme Court

First Amendment and Public Financing of Elections. Seattle’s Democracy Voucher Program further’s a legitimate interest in the public financing of elections. The tax that supports the program “does not alter, abridge, restrict, censor, or burden speech.” The Program, moreover, does not force association between taxpayers and any message conveyed by the program. Elster v. Pynchon, No. 96660-5 (Jul 11, 2019).

Vehicular Homicide. The defendant’s action of striking a vehicle while intoxicated and fleeing the scene was the proximate cause of a Good Samaritan who was killed while helping the occupant of the vehicle the defendant struck. The tort-derived reasonable foreseeability standard is properly applied in vehicular homicide cases to delineate between a superseding cause and a mere intervening event. The question of foreseeability rests with the jury when reasonable minds can differ on this issue. State v. Frahm, No. 95947-1 (Jul. 11, 2019). Justices Madsen and Gordon McCloud dissent.

Washington Law Against Discrimination. Obesity always qualifies as an impairment under the plain language of RCW 49.60.040(7)(c)(i) because it is recognized by the medical community as a “physiological disorder, or condition” that affects multiple body systems listed in the statute. If an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates this section of the Washington Law Against Discrimination. Taylor v. Burlington Northern Railroad Holdings, Inc., No. 96335-5 (Jul. 11, 2019). Justices Yu and Gordon McCloud dissent.

The Court accepted review on July 9, 2019, of the following cases:

Jurisdiction of Courts. State v. Stevens County Dist. Court Judge, No. 97071-8. Stevens County. Issue: Whether the Superior Court can, in first appearances, exercise its concurrent jurisdiction over misdemeanor cases where the case was or is likely to be filed in the District Court. COA opinion reported at 7 Wn. App. 2d 927 (2019). Petition for review pleadings available here.

Jurors. Bednarczyk v. King County, No. 96990-6. King County. Issues presented: Does King County’s failure to compensate jurors for their service result in the unlawful exclusion of prospective jurors based on “economic status” in violation of the Juror Rights Statute, RCW 2.36.080(3)? Does there exist an implied cause of action under the Juror Rights Statute, RCW 2.36.080(3)? Are jurors “employees” for purposes of the Washington Minimum Wage Act, RCW 49.46.020, and therefore entitled to be paid at least the minimum wage for each hour of service? COA opinion reported at 7 Wn. App. 2d 647 (2019). Petition for review pleadings available here.

Division One

“Juvenile” Sentencing. Neither the Eighth Amendment nor article I, section 14 of the Washington Constitution require a presumption that a “juvenile’s” youthfulness is a mitigating circumstance that warrants a deviation from an SRA standard range. State v. Gregg, COA No. 77913-3-I (Jul. 8, 2019).

Guilty Pleas. Although the defendant was affirmatively misinformed about his duty to register as a felony firearm offender, he fails to establish manifest injustice sufficient to vacate his guilty plea. State v. Gregg, COA No. 77913-3-I (Jul. 8, 2019).

Legal Update for Washington State Law Enforcement

The June 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Federal Marijuana Prosecutions. A defendant may only enjoin his federal prosecution for violations of the Controlled Substances Act if he can prove that his actions were in strict compliance with the state’s medical marijuana law. United States v. Evans, No. 17-30185 (Jul. 9, 2019).

WEEKLY ROUNDUP FOR JULY 5, 2019

Washington Supreme Court

Restitution. “The sentencing hearing,” from which to calculate RCW 9.94A.753(1)’s 180 day period for determining restitution, when a defendant must be resentenced on remand, is the resentencing hearing. A trial court, therefore, does not exceed its statutory authority by entering a second restitution award following resentencing. State v. Barbee, No. 96490-4 (Jul. 3, 2019).

Division One

Cell-Site Location Information. A person has an expectation of privacy in cell-site location information (CSLI) records. The State must utilize search warrants, not subpoenas, to obtain CSLI records from a wireless carrier. State v. Phillips, COA No. 77175-2-I (Jul. 1, 2019).

Robbery. The use of force or fear to obtain or retain possession of the property at issue in a second degree robbery case is not an essential element that must be included in the information. A trial court is not required to instruct the jury on the good faith claim of title when neither the State nor defense request such an instruction. The good faith claim of title defense is surplusage and unnecessary in a robbery trial where the defendant claims that he selected the item, then paid for it at the checkout stand, and then was accosted as he was leaving the store, as if the jury believes the defendant there would be no theft and, hence, no robbery. State v. Phillips, COA No. 77562-6-I (Jul. 1, 2019).

Juvenile Sentencing. All deferred dispositions, including pending deferred dispositions, are excluded from a juvenile court’s calculation of an offender’s criminal history by RCW 13.40.020(8)(b). State v. S.M.G., COA No. 79039-1-I (Jul. 1, 2019).

Division Two

Search Warrants. The search warrant was sufficiently particular wherein it explained that (1) there was probable cause to search for “evidence of the crime(s) of: RCW 9.68.050 Dealing in depictions of a minor engaged in sexually explicit conduct and RCW 9.68A.070 Possession of depictions of a minor engaged in sexually explicit conduct,” (2) the warrant described the items to be seized, including a list of specific types of electronic devices and media “capable of being used to commit or further the crimes outlined above, or to create, access, or store the types of evidence, contraband, fruits, or instrumentalities of such crimes,”and (3) limited the records, documents and other information to be seized from the devices and data to that “related to the production, creation, collection, trade, sale, distribution, or retention of files depicting minors engaged in sexually explicit acts/child pornography.” State v. Vance, COA No. 50664-5-II (Jul. 2, 2019).

Division Three

Failure to Register as a Sex Offender. To convict a sex offender registrant without a fixed address of a violation of RCW 9A.44.130(6)(b) for failing to provide an accurate accounting of where he stayed during the week to the county sheriff at his weekly report to the sheriff’s office, the State must prove that the sheriff’s office made a clear and specific request for this accounting for the week in question. Sufficient evidence may be established through the use of a form that explicitly requests transients to list all places stayed that week. State v. Dollarhyde, COA No. 36047-4-III (Jul. 2, 2019).

Ninth Circuit

Bikini Baristas. The city’s lewd conduct ordinances are not unconstitutionally vague as the definition of “lewd act” would allow a person of ordinary intelligence to reasonably ascertain what is prohibited. The city’s dress code ordinance is also sufficiently clear. The act of wearing almost no clothing while serving coffee in a retail establishment does not constitute speech protected by the First Amendment. Edge v. City of Everett, No. 17-36038 (9th Cir. Jul. 3, 2019).

WEEKLY ROUNDUP FOR JUNE 28, 2019

United States Supreme Court

Blood Alcohol Testing. Plurality decision with Justices Alito, Roberts, Breyer and Kavanaugh concluding that when a drive is unconscious and cannot be given a breath test, the exigent circumstances doctrine generally permits a blood test without a warrant. An exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, as a driver’s unconsciousness does not just create pressing needs; it is itself a medical emergency. Justice Thomas concurred in the opening stating that he would apply a per se rule, under which the natural metabolization of alcohol in the blood stream “creates an exigency once police have probable cause to believe the driver is drunk,” regardless of whether the driver is conscious. Mitchell v. Wisconsin, No. 18-6210 (2019). Dissenters were Justices Sotomayor, Ginsburg, Kagan and Gorsuch.

WEEKLY ROUNDUP FOR JUNE 21, 2019

United States Supreme Court

Double Jeopardy. The District Court denied this motion, invoking the dual-sovereignty doctrine, according to which two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns” is reaffirmed. Gamble v. United States, No. 17-646 (Jun. 17, 2019). Justice Thomas filed a concurring opinion that favors curtailing the doctrine of stare decisis. Dissenters were Justices Ginsburg and Gorsuch.

Takings. A government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under §1983 at that time. Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), which held that property owners must seek just compensation under state law in state court before bringing a federal takings claim under §1983, is overruled. However, as long as post-taking compensation remedies are available, governments need not fear that federal courts will invalidate their regulations as unconstitutional. Knick v. Township of Scott, No. 17-647 (Jun. 21, 2019). Justice Thomas filed a concurring opinion. Dissenters were Justices Kagan, Ginsburg, Breyer, and Sotomayor.

Batson. The history of the State’s peremptory strikes in the defendant’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in the defendant’s sixth trial was motivated in substantial part by discriminatory intent. Disparate questioning can be probative of discriminatory intent – 145 questions asked of 5 black prospective jurors vs. 12 questions asked of 11 white seated jurors – when the two groups were not manifestly different. A comparison of the stuck jurors with those not struck revealed a series of factually inaccurate explanations for striking black prospective jurors, supporting a reversal of the verdict and remand for a seventh trial. Flowers v. Mississippi, No. 17-9572 (Jun. 21, 2019). Dissenters were Justices Thomas and Gorsuch.

Fabrication of Evidence Claims. The statute of limitations for a criminal defendant’s 42 U.S.C. § 1983 claim alleging the fabrication of evidence does not begin to run until the end of the criminal proceedings against him. McDonough v. Smith, No. 18-485 (Jun. 20, 2019). Dissenters were Justices Thomas, Kagan, and Gorsuch.

Division One

Involuntary Commitment. A person facing a trial for an involuntary 90-day commitment does not have a constitutional right to a jury trial. A person who is given notice of her statutory right to demand a jury and who does not do so, is not entitled to vacation of an order of commitment obtained in a bench trial. In re Detention of C.B., COA No. 77471-9-I (Jun. 17, 2019).

Gifts of Public Funds. The port did not violate Const. art. VIII, sec. 7 by allowing trains to utilize rails rent free pursuant to a 1947 contract, and without paying for the impact to the tracks from wear and tear. Donative intent not shown where legally sufficient consideration was recieved by the Port. Only when the consideration is “so gross as to shock the conscience,” and thus may suggest fraud or other wrongdoing will donative intent be found. Peterson v. Port of Benton, COA No. 79090-1-I (Jun. 17, 2019).

Division Two

Defense Attorney Conflict of Interest. Defense counsel who previously represented a principal in the gang which had been involved in back-and-forth shootings with the defendants’ gang had an actual conflict of interest that required his withdrawal. Although the former client was not a witness in the defendants’ trial, the attorney’s inability to use confidential information he learned during that prior representation in the defense of his current client represented an actual conflict of interest. State v. Kitt, COA No. 49534-1-II (Jun. 18, 2019).

WEEKLY ROUNDUP FOR JUNE 14, 2019

Washington Supreme Court

Police Officer Negligence Claims. Police officers owe a duty of reasonable care to avoid unreasonably escalating an encounter to the use of deadly force. A negligence claim is not barred by conduct that also supports an intentional tort, such as assault. The public duty doctrine does not prevent negligence lawsuits against police officers, though the legislature may limit liability by statute. Beltran-Serrano v. City of Tacoma, No. 95602-8 (Jun. 13, 2019). Justices Madsen, Johnson, Owens, and Wiggins dissented.

Division Two

Equitable Tolling and Collateral Attacks. Petitioner was not entitled to equitable tolling of the one year time limit contained in RCW 10.73.090. While the lawyer the defendant’s family retained to assist him with his personal restraint petition (PRP) resigned in lieu of discipline prior to the expiration of the one-year time limit, there was no bad faith, deception, or false assurances by the State. RAP 18.8(a) and (b) does not authorize extending the time limit for filing a PRP. In re Personal Restraint of Fowler, COA No. 51029-4-II (Jun. 11, 2019).

Division Three

Self-Defense Instruction. A defendant was entitled to a self defense instruction even though he did not testify that he feared his opponent would badly beat him. The defendant may establish his subjective fear by circumstantial evidence through the testimony of others. State v. Tullar, COA No. 35956-5-III (Jun. 11, 2019).

Legal Financial Obligations. The 2018 LFO amendments impact assessments for the cost of court-appointed counsel and the sheriff’s fee. The 2018 LFO amendments do not impact the domestic violence assessment under RCW 10.99.080(1) as it is a penalty, rather than a cost of prosecution under RCW 10.01.160. The domestic violence assessment may be imposed against indigent defendants. The 2018 LFO amendments do not impact recovery of medical expenses under RCW 70.48.130(5) for care provided in the jail while a defendant is in custody pending adjudication. While a court must find that the defendant has the ability to pay prior to ordering repayment of medical costs, the fact that the defendant meets the statutory definition of indigence under RCW 10.101.010(3)(c) does not preclude the trial court from requiring reimbursement. State v. Smith, COA No. 35708-2-III (Jun. 6, 2019).

LUPA. Parties to a land use petition act action may agree to accept service of process by e-mail. RST Partnership v. Chelan County, COA No. 35838-1-III (Jun. 13, 2019).

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The February 2019 and March 2019 trainings are now posted.

Legal Update for Washington State Law Enforcement

The May 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR JUNE 7, 2019

Washington Supreme Court

Adjudicatory Body, Selective Prosecution, and Religion. In a post-remand opinion that restates that the State of Washington bars discrimination in public accommodations on the basis of sexual orientation, and that enforcement of the Washington Law Against Discrimination does not violate a person’s right to religious free exercise and does not compel speech or association, the Court addresses the issues in the United States Supreme Court’s grant and reverse order. Members of an adjudicatory body may not disparage the religion of a party before it. Selective-enforcement claims premised on the free exercise clause are subject to the same demanding standard as all other selective enforcement claims, requiring the defendant to “introduce ‘clear evidence’ displacing the presumption that a prosecutor has acted lawfully.” State v. Arlene’s Flowers, Inc., No. 91615-2 (Jun. 6, 2019).

On Tuesday, June 4, 2019, the Supreme Court accepted review in the following cases:

Disqualification of Prosecuting Attorney’s Entire Office. State v. Nickels, No. 96943-4. Grant County – State’s Petition. Issues: “1. Does RPC 1.11(d) apply equally to elected prosecuting attorneys as it does to other government attorneys? 2. If arguendo, RPC 1. 11 ( d) does not apply to a timely and effectively screened elected prosecuting attorney, must the office wide disqualification abatement test take into account the complexity of the case, proximity to trial, and availability of substitute counsel?” COA opinion reported at 7 Wn. App. 2d 491 (2019). Petition for review pleadings available here.

Judicial Disqualification Statute. Godfrey v. Ste. Michelle Wine Estates, Ltd., No. 96952-3. Issues presented: “Is a Superior Court judge’s ruling granting a request to extend case management deadlines a ‘discretionary ruling’ for purposes of Washington’s notice of disqualification statute, RCW 4.12.050? If entering such an order is a discretionary ruling for purposes of the statute, then a party is foreclosed from using an affidavit of prejudice to unilaterally remove a judge from a case who has already granted such a request.” COA opinion is unpublished, though prior opinions in the case are published. Petition for review pleadings available here.

Division One

Offender Score Calculation. Dismissal of a misdemeanor conviction is not equivalent to vacation of that conviction. A misdemeanor that is dismissed pursuant to RCW 3.50.320 and RCW 3.66.067, following a deferred sentence, will interrupt the washout period for prior felonies. State v. Haggard, COA No. 77426-3-I (Jun. 3, 2019).

Search Warrants. Probable cause existed to issue the warrant as the affidavit set forth sufficient facts from which a reasonable person could conclude that the defendant was involved in criminal activity and existence of that activity could be found in the residence. Although the warrant contains generic classifications of the items to be searched and seized, it provided sufficient guidance to the officers to prevent them from making the search a general, exploratory rummaging in a person’s belongings. The complained of omission from the affidavit was merely negligent. No warrantless search occurred when the officers recorded the serial number that was in plain sight on a welder that may have been stolen. State v. Haggard, COA No. 77426-3-I (Jun. 3, 2019).

Division Two

Bail. The trial court is not required to make written or oral findings regarding its decision to deny release on personal recognizance pending trial. The record in this case supported a finding that conditions of release were necessary to reasonably assure the accused’s appearance – defendant had prior FTAs, an escape conviction, no employment or ties to the community, mental health issues, and the release unit considered the defendant to be a medium to high flight risk. The defendant’s prior convictions for firearm possession and assault, the absence of any person to vouch for him, mental health issues, past threats against the victim involving a deadly weapon, the instant offense was committed when the defendant was on probation, and the instant offense involved a violation of a protection order. The trial court, however, erred by failing to consider less restrictive conditions of release or the defendnat’s financial resources before imposing the $60,000 bond. State v. Ingram, COA No. 50577-1-II (Jun. 4, 2019).

Foreign Protection Orders. The validity of a foreign protection order is not an essential element of a violation of a protection order offense. The validity of the order is a legal question related to the admissibility of the order for the trial court to decide. State v. Ingram, COA No. 50577-1-II (Jun. 4, 2019).

Division Three

Felony Elude and Vagueness. The attempting to elude a police vehicle statute, RCW 46.61.024(1), is not unconstitutionally vague. The “as applied” standard for vagueness was not changed by Johnson v. United States, 135 S. Ct. 2551 (2015). State v. Schilling, COA No. 35719-8-III (Jun. 4, 2019).

Ninth Circuit

Terry Stops. An anonymous tip that a person saw someone with a gun does not provide reasonable suspicion to make a Terry stop in Washington, where possession of a firearm is presumptively lawful. Flight from police officer does not establish reasonable suspicion in all cases; flight is just one factor in the reasonable suspicion analysis. Where flight occurs before officers communicate with the person and the person is of color, racial dynamics along with a simple desire not to interact with police will provide an “innocent” explanation of flight that flight when considered alongside a tip that is entitled to little weight, will not provide reasonable suspicion for a stop. United States v. Brown, No. 17-30191 (9th Cir. Jun. 5, 2019).

WEEKLY ROUNDUP FOR MAY 31, 2019

United States Supreme Court

First Amendment Retaliatory Arrest Claims. A First Amendment retaliatory arrest claim will generally fail as a matter of law when there was probable cause to arrest the person. A person may succeed on a 42 U.S.C. § 1983 claim despite the existence of probable cause when the person presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Nieves v. Bartlett, No. 17-1174 (May 28, 2019).

Washington Supreme Court

Manifest Injustice Dispositions. A suspended manifest injustice disposition is immediately appealable. The standard of proof for imposition of a manifest injustice sentence is clear and convincing evidence, as no constitutionally protectable liberty interest is created by the juvenile dispositional guidelines. State v. T.J.S.-M., No. 96434-3 (May 30, 2019). Justice Yu concurred in the result. Dissenters included Justices González and Gordon McCloud.

Division Three

“In Uniform” and Felony Elude. “Uniform” for purposes of eluding a police officer requires the signaling or pursuing officer to wear a department-issued garment that clearly communicates the officer’s official status to members clothing. A vest issued by the police department that the officer wore over “normal clothes” was a uniform as it had a Spokane Police badge on front and clear block reflective letters across the back that said “police.” State v. Connors, COA No. 35718-0-III (May 30, 2019).

Ninth Circuit

Federal Criminal Jurisdiction in Indian Country. The Assimilative Crime Act (ACA), 18 U.S.C. § 13 applies to Indian Country. The ACA, when invoked in Indian Country, does not apply to (1) “offenses committed by one Indian against the person or property or property of another Indian,” (2) “any Indian committing any offense in the Indian country who has been punished by the local law of the tribe,” or (3) “any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.” See Indian Country Crimes Act, 18 U.S.C. § 1152. The Indian-on-Indian exception does not preclude application of the ACA to all “victimless” crimes. United States v. Smith, No. 17-30248 (9th Cir. May 28, 2019).

WEEKLY ROUNDUP FOR MAY 24, 2019

Division Two

Speedy Trial. A criminal defendant’s constitutional speedy trial rights were violated by a 38 year gap between charging and the defendant’s first appearance in the trial court on the murder charges. Most of the delay is attributable to the State which negligently allowed the defendant to be transferred to Canada to stand trial for murder and then made no formal efforts to extradite the defendant to the United States following his conviction in Canada. State v. Ross, COA No. 52570-4-II (May 21, 2019).

Public Funds and Ballot Propositions. RCW 42.17A.555, which prohibits the use of public facilities to support “a campaign for election of any person to any office or for the promotion of or opposition to any ballot proposition,” was violated when the Port filed a declaratory judgment action against two ballot propositions, seeking a judicial directive preventing the ballot propositions from being placed on the local ballot. The Port was required to disclose its pre-election declaratory judgment related legal expenditures as independent expenditures under RCW 42.17A.255. RCW 42.17A.255 does not violate the First Amendment and is not void for vagueness. State v. Economic Development Board for Tacoma-Pierce County, COA No. 49892-8-II (May 21, 2019).

Division Three

Cash Bail. If an accused has violated a condition of cash bail, a trial court has discretion to forfeit cash bail even after the accused reappears in court and even after entry of the judgment and sentence. State v. Jeglum, COA No. 35841-1-III (May 21, 2019).

DOSA. Eligibility for DOSA is offender-based, not offense-based. A defendant who is sentenced to serve concurrent sentences for multiple crimes is eligible for DOSA if at least one sentence has a standard range longer than one year. Postsentence Petition of Hardy, COA No. 36086-5-III (May 23, 2019).

Colorado Supreme Court

Drug Detection Dogs and Marijuana. A sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under the Colorado Constitution because that sniff can detect lawful activity, namely the legal possession of up to one ounce of marijuana by adults twenty-one and older. Law enorcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff. People v. McKnight, 2019 CO 36 (May 20, 2019).

WEEKLY ROUNDUP FOR MAY 17, 2019

Washington Supreme Court

Plain View. Inadvertence is not a separate element required under the plain view doctrine. Thus, a plain view seizure is legal when the police (1) have a valid justification to be in an otherwise protected area, provided that they are not there on a pretext, and (2) are immediately able to realize the evidence they see is associated with criminal activity. Law enforcement’s warrantless seizure of a defendant’s bloody clothing from the defendant’s hospital room was lawful where the officer’s presence in the hospital room was lawful and the police could reasonably conclude that the seized items had evidentiary value with respect to the current arson and assault investigation. State v. Morgan, No. 96017-8 (May 16, 2019). Justices Madsen and Gordon McCloud dissented. (Snohomish County – Seth Aaron Fine).

Impeachment Evidence and Harmless Error. The erroneous exclusion of impeachment evidence is harmless beyond a reasonable doubt if, in light of the entire record, the court is convinced that the jury would have reached the same verdict absent the error. There is no eyewitness prerequisite to a finding of harmless error. When the victim’s account is corroborated by numerous other witnesses and the defendant’s account was highly implausible and/or directly refuted by other witnesses, the erroneous exclusion of U Visa evidence is harmless beyond a reasonable doubt. State v. Romero-Ochoa, No. 95905-6 (May 16, 2019). (Pierce County.)

Division Two

Controlled Substances. When a defendant has a previous conviction under chapter 69.50 RCW, RCW 69.50.408 automatically doubles the maximum sentence and the trial court does not have discretion to treat 60 months as the maximum sentence. The standard range for such a defendant is that in the SRA grid. State v. Cyr, COA No. 50912-1-II (May 14, 2019).

Ninth Circuit

Pro Se Criminal Defendants. The defendant, who presented an unorthodox and ultimately unsuccessful defendant was properly found to be competent to represent himself. The trial court did not abuse its discretion when it found that the defendant knowingly and intelligently waived his right to counsel. Equivocal statements made early on in a Faretta hearing will not taint a defendant’s fina, unequivocal waiver of counsel. The trial court was not required to conduct a second Faretta hearing after the defendant filed a motion requesting “a new counsel advisor.” United States v. Audette, No. 17-10017 (9th Cir. May 14, 2019).

American Bar Association

Obligations of Prosecutors in Negotiating Plea Bargains for Misdemeanor Offenses. Model Rules 1.1, 1.3, 3.8(a), (b), and (c), 4.1, 4.3, 5.1, 5.3, and 8.4(a), (c) and (d) impose obligations on prosecutors when entering into plea bargains with persons accused of misdemeanors. These obligations include the duty to ensure that each charge incident to a plea has an adequate foundation in fact and law, to ensure that the accused is informed of the right to counsel and the procedure for securing counsel, to avoid plea negotiations that jeopardize the accused’s ability to secure counsel, and, irrespective of whether an unrepresented accused has invoked the right to counsel, to avoid offering pleas on terms that knowingly misrepresent the consequences of acceptance or otherwise pressure or improperly induce acceptance on the part of the accused. American Bar Association Formal Opinion 486 (May 9, 2019).

Virginia State Bar Disciplinary Board

Prosecutor Discipline. A commonwealth attorney received a public reprimand for listening to a jail phone call between a defendant and his attorney, which was recorded because the attorney had not registered his phone number with the jail. Although the attorney’s supervisors concluded that the attorney client privilege was waived as the defendant and the attorney were informed at the beginning of the call that it was being recorded, the disciplinary board found that the commonwealth attorney violated RPC 3.3, which states that “In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” In re Matter of Thacher, VSB Docket No. 18-053-111919 (May 7, 2019).

WEEKLY ROUNDUP FOR MAY 10,2019

Washington Supreme Court

Firearm Rights. The sheriff is not required to issue a concealed pistol licence to an individual whose sealed juvenile record includes adjudications for class A felonies. A sealed juvenile adjudication still exist as a matter of state law. A sealing order does not constitute an expungement of the juvenile offense. A sealed juvenile adjudication still exists, it is merely hidden from the view of the general public. A juvenile’s class A felony adjudication subjects him to federal law which makes it unlawful for him to “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g). Barr v. Snohomish County Sheriff, No. 96072-1 (May 9, 2019). [Editor’s Note: The Court expressly declined to decide whether state law prohibits a juvenile whose class A adjudications have been sealed is prohibited from possessing or carrying a firearm under state law.]. (Snoco Lyndsey Downs)

Adult Sentencing for Defendants Who Committed Their Crimes Prior to Their Eighteenth Birthday. A defendant whose sentence was imposed prior to the issuance of Houston-Sconiers, 188 Wn.2d 1 (2017), which grants to the trial court absolute discretion to depart from the standard sentencing ranges and mandatory sentence enhancements for defendants being sentenced under the SRA for offenses committed prior to their eighteenth birthday, is not entitled to collateral relief unless he can demonstrate by a preponderance of the evidence that his sentence would have been shorter if the trial court had absolute discretion to depart from the SRA at the time of sentencing. Because the judge sentenced this defendant to the top of the standard sentencing range, the Court declines to consider whether Houston-Sconiers is a significant material change in the law that applies retroactively to cases on collateral reivew. In re Personal Restraint of Meippen, No. 95394-5 (May 9, 2019). Justices Wiggins, González, Yu and Gordon McCloud dissented on the grounds that Houston-Sconiers is a significant thange of law that applies retroactively on collateral review and that would support a remand for a reference hearing. (King County Ann Summers and Amy Meckling)

Division One

Seizure. The defendant bears the burden of proving a seizure occurred in violation of article I, section 7. A seizure occurs for article I, section 7, when an officer’s words and action would have conveyed to an innocent person that his or movements are being restricted. Officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure. In the instant case, the defendant was seized when officers asked for proof of his identity under a totality of the circumstances analysis as (1) the defendant was seated in a parked car that was flanked by cars parked in each of the adjoining spaces when the two uniformed officers stood adjacent to the vehicle’s doors, such that neither the defendant nor his passenger would have been able to open the doors and walk away from the vehicle without the officers moving or giving way; (2) the defendant could not move his vehicle in reverse without risking his car making contact with one or both of the officers and a barrier prevented the vehicle from pulling forward, (3) the officers illuminated the interior of the vehicle with flashlights, and (4) the officers used a ruse to begin the contact, asking “Is this Taylor’s car?” The seizure was unlawful as the officers did not observe any defendant-specific conduct prior to approaching the vehicle. State v. Johnson, COA No. 77720-3-I (May 6, 2019).

Domestic Violence. Statements the non-testifying victim made to health care providers that were admitted pursuant to ER 803(a)(4), in conjunction with a certified copy of the defendant’s driver’s license, and a redacted certified copy of the no contact order, was sufficient to establish that the defendant committed the crime of misdemeanor violation of the no-contact order. Sufficient evidence, however, does not support the conviction for assault in the second degree in violation of RCW 9A.36.021(1)(a), as the State did not prove beyond a reasonable doubt that the defendant recklessly inflicted substantial bodily harm during an intentional assault. While the evidence showed the defendant fractured the victim’s finger, there was no evidence that the defendant knew of and disregarded a substantial risk that he would fracture the victim’s finger when he grabbed the phone from her hand. State v. Melland, COA No. 76617-1-I (May 6, 2019).

Legal Update for Washington State Law Enforcement

The April 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Florida Supreme Court

Judges in Romantic Relationships with Attorneys. A judge must recuse in any case handled by the attorney who is in a romantic relationship with the judge. The judge must disclose the relationship with the attorney in cases where one side is represented by the firm that has a relationship with the attorney. The judge need not automatically recuse from cases involving the firm with whom the attorney is associated so long as it is clearly established that the attorney derives no personal benefit from cases handled by other members of the firm and the judge is careful to observe strict objectivity in ruling on any motions to disqualify that may stem from revealing the relationship. Judicial Ethics Advisory Committee, Opinion No. 2019-16 (Apr. 25, 2019).

WEEKLY ROUNDUP FOR APRIL 26, 2019 & MAY 3, 2019

Washington Supreme Court

Exceptional Sentence. The trial court was not collaterally estopped from imposing an exceptional sentence at a resentencing hearing that was necessitated by the reversal of four of seven convictions, by its decision not to impose an exceptional sentence as the original sentencing hearing. The presumption of judicial vindictiveness does not apply when the overall length of the new sentence is lower than the original sentence. The presumption of prosecutorial vindictiveness does not prevent the State from recommending an exceptional sentence at a resentencing hearing after not requested one at the original hearing, as the prosecutor at each sentencing hearing must decide whether the length of a standard range sufficient given the facts of the case. State v. Brown, No. 95734-7 (May 2, 2019). Justice Gordon McCloud was the lone dissenter.

Clerk’s Bonds. RCW 36.23.020 allows a superior court to increase the amount of the clerk’s bond. The superior court’s authority is not capped by RCW 36.16.050, which limits the maximum bond that a clerk must post before assuming office at the amount set for the treasurer in the same county. Riddle v. Elofson, No. 95959-5 (Apr. 25, 2019). Plurality decision with Justices Yu, Madsen, and Fairhurst dissenting on the grounds that the judges exceeded their statutory authority by ordering the clerk to double the amount of her official bond without any prior notice or opportunity to be heard.

Writs of Prohibition. Whether a writ of prohibition will issue is a narrow inquiry that looks only to the question of power and jurisdiction of an inferior court. A writ will not issue when the petitioner may be able to obtain relief through a preliminary injunction and declaratory judgment. Riddle v. Elofson, No. 95959-5 (Apr. 25, 2019). Plurality decision with Justices Yu, Madsen, and Fairhurst dissenting on the grounds that the extraordinary circumstances presented support the extraordinary remedy of prohibition.

On April 30, 2019, the Washington Supreme Court accepted review in the following matters:

Aggravated First Degree Murder and “Juveniles.” State v. Delbosque, No. 96709-1. Mason County– State’s Petition for Review. Issues presented: (1) Whether the Court of Appeals improperly vacated the trial court’s minimum term for a “juvenile” convicted of aggravated first degree due to its misallocation of the burden of proof and persuasion, by treating age as a per se mitigating factor, and by misapplying the standard of review. (2) Whether the defendant has a constitutional right to appeal his minimum term. COA opinion reported at 6 Wn. App. 2d 407 (2018). Petition for review pleadings available here.

Duty to Investigate. Wrigley v. State of Wash., DSHS, No. 96830-6. Government’s Petition for Review. Issues presented: Whether RCW 26.44.010 and .050 require an investigation of allegations of possible future abuse or neglect. COA opinion reported at 5 Wn. App. 2d 909 (2018) Petition for review pleadings available here.

Single Subject Requirement. Am. Hotel & Lodging Ass’n. v. City of Seattle, No. 96781-4. Government’s Petition for Review. Issues: Whether Seattle’s I-124, violates the City’s single subject requirement? COA opinion reported at 6 Wn. App. 2d 928 (2018). Petition for review pleadings available here.

Garnishments. Fireside Bank v. Askins, No. 96853-5. Whether a trial court may enforce the regulatory protections of the Collection Agency Act (CAA), when a “collection agency” “collected and attempted to collect, through writs of garnishment,” inflated judgment balances. COA opinion reported at 6 Wn. App. 2d 431 (2018). Petition for review pleadings available here.

Division One

Double Jeopardy. State v. Zhao, 157 Wn.2d 188 (2006), which allows a person to plead guilty to a fictitious crime, does not provide a basis to avoid double jeopardy and convict a person for two crimes based on one criminal act. State v. Robinson, COA No. 76648-1-I (Apr. 22, 2019).

Division Three

Theft of a Motor Vehicle. A snowmobile is not a “motor vehicle” for purposes of RCW 9A.56.65, which makes it a class B felony to commit theft of a motor vehicle. State v. Tucker, COA No. 35530-6-III (May 2, 2019). Judge Korsmo dissented.

Seizure. A defendant was seized for purposes of the Fourth Amendment when two patrol cars blocked the defendant’s vehicles only exit from a dead end alley and two officers approached the passenger and driver side windows. Since the officers lacked reasonable suspicion of criminal activity, the seizure was unlawful. State v. Carriero, COA No. 35560-8-III (Apr. 25, 2019). Judge Korsmo dissented.

Ninth Circuit

Malicious Prosecution. The reversal of plaintiff’s conviction on basis of the exclusionary rule is not a favorable termination, for purposes of a malicious prosecution claim, because the reversal does not address plaintiff’s guilt or innocence. Mills v. City of Covina, No. 17-56343 (9th Cir. Apr. 24, 2019).

Sixth Circuit

Parking Enforcement. The common parking enforcement practice known as “chalking,” whereby parking enforcement officers use chalk to mark the tires of parked vehicles to track how long they have been parked, is a search that is subject to the Fourth Amendment. Neither the automobile exception nor the community caretaking exceptions to the warrant requirement supports chalking. Taylor v. City of Saginaw, No. 17-2126 (6th Cir. Apr. 22, 2019).

WEEKLY ROUNDUP FOR APRIL 19, 2019

Washington Supreme Court

Obstruction Conviction. RALJ court’s ruling upholding the obstruction conviction affirmed by an equally divided court. Justice Madsen recused herself and no pro tem justice replaced her. See State v. Beck, 56 Wn.2d 474 (1960) (when one justice has recused herself from participating in the decision and the remaining eight justices are equally divided in their decision, the judgment of the trial court stands).

Justices González, Fairhurst, Johnson and Gordon McCloud would hold that a person cannot be convicted of obstructing for refusing to open the door to officers who have a lawful right to make a warrantless entry pursuant to the community caretaking exception to the warrant requirement. These four justices do not agree that a person has a duty to comply with the police’s demand to open the door under these circumstances, and that conduct that amounts to passive delay will not sustain an obstruction charge.

Justices Stephens, would hold that a person’s refusal to obey lawful commands to take a specific action is conduct sufficient to support an obstruction conviction, and that the officers’ orders to open the door were lawful under the community caretaking exception to the warrant requirement. No constitutional or free speech rights allowed the defendant to refuse the polices’ demand to open the door under the facts of this case. City of Shoreline v. McLemore, No. 95707-0 (Apr. 18, 2019).

Waiver of Counsel. A trial court does not abuse its discretion by denying a competent defendant’s request to represent himself, where the defendant’s responses during the waiver of counsel colloquy indicates a lack of understanding of the consequences. In this case, the defendant indicated that the criminal charges did not pertain to him as he did not enter into a contract with the State and he was not a corporation. State v. Burns, No. 95528-0 (Apr. 18, 2019).

Confrontation Clause Violation. A defendant must raise an objection at trial or waive the right of confrontation. “[R]equiring an objection is in the interests of judicial efficiency and clarity, and provides a basis for appellate courts to review a trial judge’s decision. Where a defendant does not object at trial, ‘nothing the trial court does or fails to do is a denial of the right, and if there is no denial of a right, there is no error by the trial court, manifest or otherwise, that an appellate court can review.’” State v. Kronich, 160 Wn.2d 893 (2007), is abrogated to the extent its analysis is inconsistent with the waiver approach. State v. Burns, No. 95528-0 (Apr. 18, 2019). Justices Stephens, Madsen, Gordon McCloud and Wiggins concur with the result but disagree with the waiver rule.

Legal Financial Obligations. Social Security Act’s antiattachment statute, 42 U.S.C. § 407(a), does not prohibit the imposition of the mandatory crime victim fund assessment. The sentencing court, however, may not impose a payment schedule while the defendant’s only source of income is social security disability. The county clerk may require the defendant to provide proof that his only assets and income are derived from social security disability benefits. State v. Catling, No. 95794-1 (Apr. 18, 2019). Justice González authored the dissenting opinion which was joined by Justice Yu and Gordon McCloud.

Exclusionary Rule. The proper remedy following suppression of evidence by an appellate court is to vacate the convictions that depended upon the illegally collected evidence and to remand to the trial court for further proceedings. State v. McKee, No. 96035-6 (Apr. 18, 2019).

Ninth Circuit

Immigration Enforcement. United States is not entitled to a preliminary injunction suspending a California statute that limits the cooperation between state and local law enforcement and federal immigration authorities. The statute which prohibits California law enforcement agencies from (1) “‘[t]ransfer[ring] an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination,” (2) “[p]roviding information regarding a person’s release date or responding to requests for notification by providing release dates or other information unless that information is available to the public,” and (3) “[p]roviding personal information . . . about an individual, including, but not limited to, the individual’s home address or work address unless that information is available to the public,” is consistent with California’s prerogatives under the Tenth Amendment and the anti-commandeering rule. United States v. State of California, No. 18-16496 (9th Cir. 2019).

WEEKLY ROUNDUP FOR APRIL 12th, 2019

Washington Supreme Court

Landlord Liability. A property owner-landlord is liable for injuries that occur on its property when the lessee has exclusive possession at the time of the accident but only priority use under the lease and the landlord has contracted to maintain and repair the premises. Adamson v. Port of Bellingham, No. 96187-5 (Apr. 11, 2019).

Division One

Necessity Defense. A defendant who was charged with burglary in the second degree after he broke into a pipeline facility and turned off a valve, which stopped the flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties, was entitled to tender his common law necessity defense to the jury. The defendant contended that his commission of the crime was necessary to avoid harm to the climate, as governments had failed to meaningfully address the crisis of climate change. State v. Ward, COA No. 77044-6-I (Apr. 8, 2019).

Self-Defense. Although the lawfulness of the defendant’s first “warning shot” was not at issue, the giving of a first aggressor instruction without an accompanying lawful defense of another instruction prejudiced the defendant’s ability to argue his theory of the case. State v. Espinosa, COA No. 76894-8-I (Apr. 8, 2019).

Division Two

Mandatory Legal Financial Obligations. A trial court need not consider a defendant’s past, present, or future ability to pay when it imposes the mandatory victim penalty assessment. The trial court may not remit the mandatory LFOs. Imposition of the mandatory LFOs does not violate a defendant’s right to due process. A county clerk possesses the authority to require a defendant to annually verify her SSI status. Requiring a defendant to annually verify her SSI status is not an “enforcement action” that will trigger an inquiry into a defendant’s ability to pay. State v. Conway, COA No. 50032-9-II (Apr. 9, 2019).

Division Three

Cannabis and Zoning. Neither Washington’s Growth Management Act, chapter 36.70A RCW, nor the State’s marijuana licensing laws require the Washington State Liquor and Cannabis Board to defer to local zoning laws when making licensing decisions. While the Board may consider zoning restrictions in making licensing decisions, doing so is not required under current marijuana law. A license does not authorize the siting of a marijuana business, zoning laws remain in full force regardless of whether a license is issued. Kittitas County v. Washington State Liquor and Cannabis Board, COA No. 35874-7-III (Apr. 11, 2019).

“Profile Testimony.” Defense counsel provided constitutionally inadequate representation by failing to object to “profile testimony” at trial. While the State may admit evidence about the inability of a felon to lawfully obtain a gun, evidence of the high probability that any gun possessed by a felon is stolen or that one possessing a stolen firearm is likely to flee and discard the firearm when approached by a law enforcement officer constitutes improper “profile testimony” that implicates ER 402, 403, 404(b), and 702. State v. Crow, COA No. 35316-8-III (Apr. 9, 2019). Judge Korsmo dissented. [Editor’s note: The majority’s ruling conflicts with Division II’s opinion in State v. Avendano-Lopez, 79 Wn. App. 706 (1995).]

Offender Scores. The State must produce evidence to support the existence of prior convictions at sentencing. Pre-sentencing discussions of prior history and defense counsel’s acknowledgment of the State’s offender score will not substitute. State v. Crow, COA No. 35316-8-III (Apr. 9, 2019). Judge Korsmo dissented.

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The January 2019 Law Enforcement Digest is now available.

Articles of Interest

Locked Phones, Computers, or Files. How to resolve a defendant’s assertion of his Fifth Amendment rights when law enforcement seeks to compel the defendant to provide a password for a locked device collected pursuant to a search warrant. Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Texas L. R. 768 (2019)

WEEKLY ROUNDUP FOR APRIL 5, 2019

Washington Supreme Court

Aggravated First Degree Murder Sentences and “Juveniles.” A judge has discretion to restructure a defendant’s entire sentence when setting a new minimum term pursuant to RCW 10.95.035 for a defendant who was convicted of additional crimes.. Regardless of any limitations contained in the relevant statutes, the trial court may find an exceptional sentence is warranted and it may adjust the standard sentence to provide for a reduced term or years, for concurrent rather than consecutive sentences, or for both. State v. Gilbert, No. 95814-9 (Apr. 4, 2019).

This week the Court granted review in the following matters:

DUI “Prior Offenses.” State v. Wu, No. 96747-4. King County. Questions presented: Whether a prior conviction meets the definition in RCW 46.61.5055(14)(a)(xii) is a question for the jury or a threshold question for the court in a felony DUI prosecution? COA opinion reported at 6 Wn. App. 2d 679 (2018). Petition for review pleadings available here.

Double Jeopardy and Standard of Review for Constitutional Claims. State v. Arndt, No. 95396-1. Kitsap County. Questions presented: Does the double jeopardy clause apply to aggravating circumstances? Does double jeopardy prohibit conviction for both aggravated first degree murder and arson, where the aggravating circumstance and the arson conviction are based on the same evidence? Did the trial court violate the defendant’s constitutional right to present a defense by excluding some of her expert’s testimony and must this error be reviewed de novo? COA opinion is unpublished. Petition for review pleadings available here.

Unlawful Practice of Law. State v. Yishmael, No. 96775-0. King County. Questions presented: Is unlawful practice of law a strict liability crime. Is the term “practice of law” unconstitutionally vague? Is it improper to use a court rule as the basis of a jury instruction defining the practice of law? COA opinion reported at 6 Wn. App. 2d 203 (2018). Petition for review pleadings available here.

Campaign Finance Disclosure Laws. State v. Grocery Mfrs. Ass’n, No. 96604-4. Questions presented: Whether the Grocery Mfrs. Ass’n, is a “political committee” under the Fair Campaign Practices Act (“FCPA”). Whether enforcement of the FCPA violated the First Amendment in this case. Whether the penalty imposed for the violations of the FCPA should be trebled. COA opinion reported at 5 Wn. App. 2d 542 (2018). Petition for review pleadings available here.

Taxation. First Student, Inc. v. State of Wash. Dep’t of Revenue, No. 96694-0. County. Questions presented: Whether assessment of business and occupation taxes upon a company that provides transportation services for compensation to organizations including school districts, youth groups, summer camps, and churches is proper. COA opinion reported at 4 Wn. App. 2d 857 (2018). Petition for review pleadings available here.

Division Two

Access Device. An access device need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner. The jury instruction defining “can be used” which was based on State v. Schloredt, 97 Wn. App. 789 (1999), was not an improper comment on the evidence. State v. Sandoval, COA No. 50814-1-II (Apr. 2, 2019).

Water Rules. The Department of Ecology has the authority to promulgate administrative rules that establish minimum instream flows for a river, require mitigation and metering for all new water appropriations, including permit exempt wells, and closes the basin to new surface water withdrawals for part of the year. DOE was not required to consider the “cost” of lost legal rights for potential drillers of future permit exempt wells in its least-burdensome alternatives and cost-benefit analyses. Bassett v. Department of Ecology, COA No. 51221-1-II (Apr. 2, 2019).

SEPA. The City of Puyallup is an “agency with jurisdiction” that can assume lead agency status under WAC 197-11-948 over a development that is outside the City’s limits but within the City’s Growth Management Urban Growth Area, as the City has approval and permitting authority over roadwork and sewer and water services that are part of the proposal. The City may assume lead agency status following the County’s issuance of a mitigated determination of nonsignificance. City of Puyallup v. Pierce County, COA No. 51501-6-II (Apr. 3, 2019).

Division Three

Community Custody Conditions. A claim that conditions of community custody are not related to the circumstances of the crime will not be considered for the first time on appeal where the defendant informed the sentencing judge that he had no objection to the conditions. The phrase “dangerous weapon” is not unconstitutionally vague when it appears with an illustrative list: “dangerous weapons such as hunting knives or a bow and arrow.” The phrase “paraphernalia for the use of controlled substances” is not unconstitutionally vague. “Romantic” in the phrase “of any romantic or sexual relationship” is problematic; the better choice is “of any dating relationship or sexual relationship.” A condition that required the defendant to obtain approval from his corrections officer before engaging in volunteer, church, and travel activities must be modified to provide the corrections department with ascertainable standards to guide its enforcement of the provision. State v. Casimiro, COA No. 35680-9-III (Apr. 2, 2019).

Legal Update for Washington State Law Enforcement

The March 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Eighth Amendment and the Homeless. The Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter. Martin v. City of Boise, No. 15-35845 (9th Cir. Apr. 1, 2019) (amended opinion).

WEEKLY ROUNDUP FOR MARCH 29, 2019

Washington Supreme Court

RAP 3.1 “Aggrieved Party.” A party is not aggrieved by a favorable decision and cannot properly appeal from such a decision. A party may only appeal if one’s personal rights or pecuniary interests have been adversely affected. Inconvenience alone will not render someone an “aggrieved party.” Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.

Public Interest Exception to Mootness. Matters of statutory interpretation will likely satisfy the public interest exception to the mootness doctrine as the issues are likely to arise again and a definitive answer would be helpful to public officials. Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.

Stays in Unlawful Detainer Cases. A court may stay execution of a writ of restitution after a default judgment is entered in an unlawful detainer case while resolving whether good cause is shown for vacation of the default judgment. The superior court’s inherent equitable authority allows granting an ex parte stay of a default judgment issuing a writ of restitution. Reynolds & Associates, Inc. v. Harmon, No. 95575-1 (Mar. 28, 2019). Justices Stephens, Johnson, Fairhurst and Madsen concur in the result only.

Division One

Therapeutic Courts. RCW 2.30.030 does not allow a trial court to admit a defendant to a therapeutic court without the prosecuting attorney’s consent. Trial court judges, however, do have discretion to establish eligibility criteria and to decline to accept cases. State v. Daniels, COA No. 78154-5-I (Mar. 25, 2019).

Seizure. An officer does not seize a person by entering a home if a person with authority to consent to the entry does so, regardless of whether the officer advised the person of his right to refuse consent. A suspect who is free to ask the officer to leave or to move to a different room is not seized for purposes of article I, section 7. State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).
Miranda. The single officer’s failure to provide Miranda warnings until he said he was going to arrest the defendant does not provide grounds for suppressing the defendant’s confession, when the officer’s conduct did not create a “police dominated atmosphere” that would support a finding of “custody.” State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).

Interview of Allegedly Abused Children. Neither a violation of RCW 26.44.030 nor RCW 26.44.100, which establish guidelines for investigation of alleged abuse will support the suppression of evidence that might establish that abuse was occurring. State v. Ho, COA No. 76519-1-I (Mar. 25, 2019).

Division Two

Coercive Contempt. The trial court did not err by denying a sexually violent predator (SVP) detainee’s motion to lift the contempt sanction imposed for his failure to participate in evaluations with the State’s experts, as the contemnor still has the ability to comply. The contemnor’s ability to purge his contempt does not rest upon the actions of third parties, where the State’s experts will perform the evaluation as soon as the contemnor signs the required forms. To the extent the contemnor believes that complying with the superior court’s order infingers upon his rights, his remedy for that complaint is to ask the superior court to address the specific issues, not to aks that the contempt be lifted. In re Detention of Faga, COA No. 50077-9-II (Mar. 26, 2019).

Ninth Circuit

Tribal Police. The exclusionary rule applies in federal court prosecutions to evidence obtained in violation of the Indian Civil Rights Act’s (ICRA) Fourth Amendment counterpart. A tribal officer may rely on a detainee’s response when asking about Indian status in order to determine jurisdiction, but the officer “cannot presume for jurisdictional purposes that a person is a non-Indian – or an Indian– by making assumptions based on that person’s physical appearance.” A tribal officer, who fails to determine whether the person he stopped on a public, nontribal highway crossing a reservation without ascertaining whether the defendant is an Indian will violate the ICRA’s Fourth Amendment parallel if, under the law of a founding era, the tribal officer engages in actions that a private citizen could not lawfully take. In the instant case, the tribal officer’s two searches of the detained non-Indian defendant’s truck could not have been lawfully undertaken by a private citizen under the laws of the founding era. United States v. Cooley, No. 17-30022 (9th Cir. Mar. 21, 2019). [Editor’s Note: This opinion does not alter a tribal officer’s authority to detain a non-Indian who has apparently violated a state law for a reasonable time in order to turn him over to state authorities. See generally State v. Schmuck, 121 Wn.2d 373 (1993).]

WEEKLY ROUNDUP FOR MARCH 22, 2019

United States Supreme Court

Treaty Travel Rights. The Yakama Treaty’s provision guaranteeing “the right, in common with citizens of the United States, to ravel upon all public highways” does not exempt individual Yakama members from state laws designed to protect the Yakama’s ability to travel safely alongside non-Indians on the highways. Washington State Department of Licensing v. Cougar Den, Inc., No. 16-1498 (Mar. 19, 2019).

Washington Supreme Court

Frye and ER 702. Trial courts should admit evidence under Frye if the scientific community generally accepts the science underlying an expert’s conclusion. Frye does not require every deduction drawn from generally accepted theories to be generally accepted. It does not matter, for Frye purposes, that more investigation and research in the future will likely lead to even better results. A trial court’s decision to admit expert testimony is reviewed under the abuse of discretion standard which can result in exclusion of testimony in one case and its admission in another case. L.M. v. Hamilton, No. 95173-0 (Mar. 21, 2019). Justices González, Johnson and Stephens concurred in the result only.

Division One

Voluntary Intoxication Defense in Civil Cases. A trial court abuses its discretion by excluding evidence of the plaintiff’s blood alcohol level when the affirmative defendant of voluntary intoxication under RCW 5.40.060(1) has been pled. Gerlach v. The Cove Apartments, LLC, COA No. 77179-5-I (Mar. 18, 2019).

Division Two

Involuntary Treatment. RCW 71.05.050 authorizes a medical center to initially detain an individual until the hospital staff has the opportunity to evaluate the person only if it has some legitimate basis grounded in the requirements of RCW 71.05.050 to involuntarily detain the person at triage. Dalen v. St. John Medical Center, COA No. 50391-3-II (Mar. 19, 2019).

Hostile Work Environment Claims. A public defender’s claim against the Public Defender Association (PDA) under the Washington Law Against Discrimination (WLAD) for hostile work environment, based upon the actions of one of her clients, can proceed because an employer may be subject to liability for a hostile work environment claim based on a nonemployee’s harassment of an employee in the workplace when the employer does not take immediate and/or corrective actions when it knows about the harassing conduct. The Industrial Insurance Act (IIA) doe not bar the employee’s negligence claim because it is not clear that the employee’s PTSD and related injuries constitute a compensable “injury” under the IIA. LaRose v. King County, COA No. 50858-3-II (Mar. 19, 2019).

WEEKLY ROUNDUP FOR MARCH 15, 2019

Washington Supreme Court

Contempt. This case concerns contempt sanctions imposed against the Department of Social and Health Services (DSHS) for failing to timely complete competency evaluations for criminal defendants. A court’s oral ruling determining contempt and imposing remedial sanctions triggers the running of the contempt sanctions. The State is not required to pay interest on the accrued contempt sanctions. State v. Sims, No. 95479-8 (Mar. 14, 201. Argued Sept. 20, 2018. [Editor’s Note: The Court’s analysis re interest should apply equally to awards under the Public Records Act.]

Jail Medical Costs. In the absence of a prior interlocal agreement, a county is not entitled to seek reimbursement from cities for the cost of medical services provided to jail inmates who were (1) arrested by city officers and (2) held in the county jail on felony charges. Thurston County v. City of Olympia, No. 95586-7. Argued Feb. 21, 2019).

Division Two

Credit for Presentence Electronic Home Monitoring. The 2015 amendment to RCW 9.94A.505 precludes felons convicted of violent crimes from receiving credit for time served on electronic home monitoring (EHM) before sentencing. The denial of credit for presentence EHM does not violate the prohibition against double jeopardy and does not violate violent offenders’ equal protection rights. State v. Kim, COA No. 50951-2-II (Mar. 8, 2091).

Division Three

Marijuana and Necessity. A defendant in possession of more than 40 grams of marijuana (in this case 1800 grams) who asserts a necessity defense must present a medical expert witness to support the defense. The trial court d did not abuse its discretion by precluding the defendant’s expert from testifying where the proposed expert testimony was first disclosed after the State rested. State v. Ruelas, COA No. 35029-1-III (Mar. 12, 2019).

Preliminary Appearances. The superior court retains authority to hold a preliminary hearing and enter related orders, even after a district court case has been filed and the district court has assumed exclusive original jurisdiction over the trial process. A district court may not refuse to accept preliminary appearance hearing orders from the superior court. State v. Stevens County District Court Judge, COA No. 35966-2-III (Mar. 12, 2019).

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The December 2018 Law Enforcement Digest is now available.

New York City Bar

RPC 3.3(f). Rule 3.3(d) of the New York Rules of Professional Conduct, which is identical to Washington RPC 3.3(f), requires a lawyer to disclose to the tribunal material facts, including adverse facts, “that will enable the tribunal to make an informed decision.” While the disclosure obligation does not apply to proceedings in which an opposing party appearing pro se is absent by choice, the rule applies where the adverse party has not been provided with notice, an opportunity to be heard on the application and time to appear, as well as to proceedings, such as search warrant applications, in which interested parties are not permitted to receive notice and to participate. New York City Bar Professional Ethics Committee, Defining “Ex Parte Proceeding” Under Rule 3.3(d), Formal Opinion 2019-1 (Feb. 4, 2019).

WEEKLY ROUNDUP FOR MARCH 8, 2019

Washington Supreme Court

This week the Washington Supreme Court accepted review in the following matters:

Pro Se Defendants. State v. Davis, No. 96663-0. King County–State’s Petition. Issues: Under what circumstances does a pro se defendant voluntarily leave trial court proceedings? What is the standard of review on appeal when a pro se defendant claims his departure from the courtroom was not voluntary? Under what circumstances may a trial court remove a pro se defendant from the courtroom against his will, and what standard of review applies to such a removal? COA opinion reported at 6 Wn. App. 2d 43 (2018). Petition for review is available here.

Incompetency. State v. McCarthy, No. 96653-2. Spokane County–State’s Petition. Issues: Under what circumstances, if any, should the trial court order another competency evaluation of an accused after a jury finds the accused competent to stand trial? COA opinion is reported at 6 Wn. App. 2d 94 (2018). Petition for review pleadings available here.

Rendering Criminal Assistance. State v. Davis, No. 96599-4. State’s Petition – Kitsap County. “State’s petition for review granted; Pry’s petition for review denied; motion to consolidate denied.” Issues: Whether a charging document for first degree rendering criminal assistance must include language from definitional statutes to be constitutionally adequate. COA opinion is unreported. Petition for review pleadings available here.

Building Permits and 42 U.S.C. § 1983. Church of the Divine Earth v. City of Tacoma, No. 96613-3. “Granted only as to whether the city is liable for damages because it knew or should have known its action was unlawful.” COA opinion reported at 5 Wn. App. 2d 471 (2018). Petition for review pleadings available here.

State Recovery for Bridge Collapse. State Dep’t of Transp. v. Mullen Trucking 2005, LTD., No. 96538-2. Issues: Whether RCW 46.44.020 grants the State immunity from liability when a motorist strikes overhead structures with more than 14 feet of clearance. Does the statute prevent the State’s fault from being allocated for purposes of determining the comparative fault of the parties? COA opinion reported at 5 Wn. App. 2d 787 (2018). Petition for review pleadings available here.

Public Records Act. Serv. Emps Int’l Union Local 925 v. Dep’t of Early Learning, No. 96578-1. Issue Whether Initiative 1501 applies to public records act request that were still pending on the day the Initiative became effective or only to requests made after the effective date of the initiative. COA opinion is unpublished. Petition for review pleadings available here.

Division Three

Possession With Intent Jury Instructions. The identity of the controlled substance should appear in the elements instruction for the charge of possession with intent to deliver. When the jury’s verdict includes the identity of the controlled substance, its omission from the “to convict” instruction is harmless as to the defendant’s sentence. State v. Rivera-Zamora, COA No. 35184-0-III (Mar. 7, 2019).

Judge’s Comments Regarding Credibility Determinations. A veteran trial judge’s comments regarding her experience, as well as in the case law, that disclosure discrepancies by young children are not uncommon does not implicate ER 201. The judge did not treat this information as a “fact,” merely offering it to explain her reasoning for not being swayed by the defense argument that the child’s story was inconsistent. Judges are allowed to bring their knowledge and understanding of the world into the courtroom. State v. N.B., COA No. 35513-6-III (Mar. 7, 2019). [Editor’s Note: This opinion also includes a concise summary of the correct test to apply to a challenge to the sufficiency of the evidence in light of a defendant’s claim that a witness was not credible.]

Legal Update for Washington State Law Enforcement

The February 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR MARCH 1, 2019

United States Supreme Court

Federal Judges. “[F]ederal judges are appointed for life, not for eternity.” A federal court may not count the vote of a judge who dies before the decision is issued. Yovino v. Rizo, No. 18-272 (Feb. 25, 2019).

Ineffective Assistance of Counsel and Appeals. A presumption of prejudice applies when trial counsel fails to file an appeal as instructed in cases where a defendant signed an appeal waiver. The presumption is appropriate as no appeal waiver serves as an absolute bar to all appellate claims. Garza v. Idaho, No. 17-1026 (Feb. 27, 2019).

Division One

Traffic Stops. The passenger’s consent to a search of her purse was not vitiated by police conduct during the traffic stop. While an officer in a traffic stop may not request identification from a passenger for investigatory purposes absent an independent reason to justify the request, an officer may check the passenger’s identification to determine if the passenger has a valid driver’s license when considering whether to allow the passenger to drive the car from the scene. Once the arrested driver consented to a search of the vehicle, it was not unreasonable for the detective to ask the passenger if she consented to a search of the purse she left in the car. State v. Lee, COA No. 77038-1-I (Feb. 25, 2019).

Division Three

DOSA. A trial court exceeds its statutory sentencing authority by imposing an additional term of community custody to be served in the event that the defendant fails to complete his or her DOSA program. In re Postsentence Review of Milne, COA No. 36093-8-III (Jan. 17, 2019, publication ordered Feb. 28, 2019).

Ninth Circuit

First Amendment and Unions. Washington’s authorization of an exclusive bargaining representative for subsidized childcare providers did not infringe on the plaintiff childcare provider’s First Amendment rights. The State’s exclusive bargaining arrangement served the compelling—and enduring—state interest of labor peace. Miller v. Inslee, No. 16-35939 (9th Cir. Feb. 26, 2019).

WEEKLY ROUNDUP FOR FEBRUARY 22, 2019

United States Supreme Court

Excessive Fines Clause of the Eighth Amendment. The Excessive Fines Clause of the Eighth Amendment which guards against abuses of the government’s punitive or criminal law-enforcement authority is incorporated by the Due Process Clause of the Fourteenth Amendment and is binding on states. Timbs v. Indiana, No. 17-1091 (Feb. 20, 2019). [Editor’s note: This case is likely to have little impact in Washington. Article I, section 14 of the Washington Constitution already prohibits the imposition of excessive fines and the Washington Supreme Court assumed application of the Eighth Amendment clause to states in 1999. See State v. WWJ Corp., 138 Wn.2d 595, 604 (1999).]

Washington Supreme Court

Collateral Consequences of Convictions. Plurality decision. Lead opinion (Justices Yu, Stephens, Madsen and González): The Department of Early Learning’s (DEL)regulations prohibiting any individualized consideration of a previously convicted person’s qualifications at the administrative level violates a person’s federal right to procedural due process when the person’s conviction is many years old and was committed when the person was in her twenties. Concurring opinion (Justice Gordon McCloud): DEL did not violate the person’s federal right to procedural due process, but did violate her right to substantive due process. DEL may not permanently disqualify the petition based solely on her 1988 conviction. Dissent (Justices Fairhurst, Owens, Wiggins and Johnson): No violation of procedural due process and petitioner has not met the heavy burden of showing that the decision to permanently disqualify her from providing childcare services based on her conviction for the violent crime of attempted robbery is not rationally related to the legitimate government interest in protecting children. Fields v. State Dept. of Early Learning, No. 95024-5 (Feb. 21, 2019).

Statute of Limitations. The statute of limitations is not an essential element of a crime. Including facts related to the statute of limitations in the information may put a defendant on notice of a defense based on the statute of limitations, but their omission does not render an information constitutionally deficient. State v. Merritt, No. 95115-2 (Feb. 21, 2019). Justices Gordon McCloud, Fairhurst and González concurred in the result, but found that the State violated RCW 10.37.050, which requires the charging document to contain sufficient facts to establish that the offense was committed within the statute of limitations. A challenge on statutory grounds, however, must be brought prior to trial through a demurrer or a request for a bill of particulars.

Division One

Juror Compensation. The appellants have failed to show that the low statutory rate of pay for jurors gives rise to a disparate impact claim based on economic status under wither the Washington Law Against Discrimination or the constitution. The fact that jurors or lower economic status will be unable to serve due to the low juror pay does not give rise to an implied disparate impact claim under the amount jurors are paid under the “no juror exclusion” statute, RCW 2.36.080(3). The “no juror exclusion” statute which protects the opportunity to be considered for jury service and imposes the obligation to serve as a juror when summoned, does not guarantee the right to actually serve on a jury when summoned. If “the Appellants premise that economic hardship excusals should be characterized as exclusions that violate RCW 2.36.080(3), the appropriate remedy would be to prohibit economic hardship excusals—it would not be to increase the rate of juror pay.” Because jury service is a civic duty and not employment, jurors are not employees under the Washington Minimum Wage Act (MWA), chapter 49.46 RCW. Rocha v. King County, COA No. 51823-6-II (Feb. 21, 2019). Judge Bjorgen dissented.

Division Two

Inmate Visitation. The Department of Corrections denial of a sex offender’s request for visitation with his minor children did not violate the defendant’s due process rights, as the due process clause does not create a protected liberty interest in prison visitation between an inmate and his children. The sentencing court’s order amending and clarifying the inmate’s sentence is not binding on DOC because the sentencing court did not have personal jurisdiction to order DOC to provide supervised visitation. DOC’s denial of visitation was not arbitrary or capricious. In re Personal Restraint of Gossett, COA No. 49525-2-II (Feb. 20, 2019).

Sealing of Juvenile Record. The offender’s 1993 conviction of indecent liberties by forcible compulsion remains a class B felony that the superior court must seal under the plain language of RCW 13.50.260(4)(b), if the specified statutory conditions are met. Once the record for that conviction is sealed, the conviction is treated as if it never occurred, allowing the offender’s first degree child molestation conviction to be sealed under the plain language of RCW 13.50.260(4)(a). State v. P.M.P., COA No. 50821-4-II (Feb. 20, 2019).

Division Three

Warrantless Breath Tests. A warrantless breath test is allowed under article I, section 7 of the Washington Constitution under the search incident to arrest exception to the warrant requirement. State v. Nelson, COA No. 35273-1-III (Feb. 19, 2019). Judge Lawrence-Berrey dissented.

Pretrial Reform Task Force

Pretrial Reform. The final report of the Task Force lists 19 recommendations in three categories — pretrial services; risk assessment; and data collection. Final Recommendations Report.

Pennsylvania Supreme Court

Prosecutors and Facebook. Prosecuting attorney suspended from the practice of law for one year and one day for improper ex parte contacts and for creating a fictitious Facebook account for the purpose of “liking” establishments suspected of selling illegal bath salts, so that her office could be alerted to events where the establishments provided free “samples,” which could be obtained and tested. Attorney encouraged staff to send “friend” requests from the fictitous Facebook account to criminal defendants and their family members. Facebook conduct violated RPC 8.4(c), 4.3(a), 4.3(c), 5.3(b), 5.3(c)(1) and 5.3(c)(2). Office of Disciplinary County v. Miller, No. 32 DB 2017 (Feb. 8, 2019).

WEEKLY ROUNDUP FOR FEBRUARY 15, 2019

Washington Supreme Court

Amendment of Charges. Plurality opinion. The principles for which there were at least five votes are (1) the Pelkey rule (109 Wn.2d 484 (1987)) that prohibits the State from amending charges after it rests to anything other than a lesser degree or lesser included offense is a bright line rule that requires a formal announcement from the State that it “rests its case,” (concurring and dissenting justices) and (2) CrR 2.1(d) is violated as the defendant is actually prejudiced when the State amends the information prior to resting and the amendment adds a new element that the defendant could not address in his voir dire, opening statement, or cross-examination of any of the State’s witnesses. (concurring and lead justices). State v. Gehrke, No. 95635-9 (Feb. 14, 2019). Lead opinion authored by Justice Wiggins and joined by Justices Madsen, Stephens, and Gordon McCloud. Concurring opinion authored by Chief Justice Fairhurst and joined by Justice Owens. Dissenting opinion authored by Justice González and joined by Justices Johnson and Yu.

DOSA. While a trial court can waive imposition of a sentence within the standard range, the trial court may not “waive” sentence enhancements or portions of the base sentence to get to a range that is low enough to accommodate the residential-based DOSA’s sentence-length prerequisites. If the base sentence range plus enhancements results in a midpoint of the standard range sentence that exceeds 24 months, the court may impose only a prison-based DOSA. State v. Yancy, No. 95992-7 (Feb. 14, 2019).

Division Three

Prosecuting Attorney Conflicts. When an elected prosecutor has previously represented a criminally accused person in a case that is the same, or substantially the same, as the one currently pending prosecution, the entire prosecutor’s office should ordinarily be disqualified from further participation. A prosecutor’s office is not subject to bright-line recusal rules. While office-wide recusal under the Supreme Court’s test is the norm, an exception can exist in extraordinary circumstances. Extraordinary circumstances are informed not by the nature of the elected prosecutor’s current activities, but by his or her prior work as counsel, including (1) whether the prosecutor was privy to privileged information and (2) the nature of the case giving rise to the elected prosecutor’s conflict of interest. The elected prosecuting attorney’s recusal from the case and lack of participation at any time during tenure as the prosecuting attorney is insufficient to allow the office to remain on the case. State v. Nickels, COA No. 35369-9-III (Feb. 7, 2019). Judge Korsmo dissented.

Restitution and Possession of Stolen Property. Restitution in possession of stolen property cases is limited to damage that the State can prove was caused by the defendant’s conduct. The State is not relieved of this burden simply because the property possessed by the defendant was stolen recently. State v. Romish, COA No. 35643-4-III (Feb. 7, 2019). Judge Korsmo dissented.

Legal Update for Washington State Law Enforcement

The January 2019 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR FEBRUARY 8, 2019

Washington Supreme Court

Gunwall and Art. I, § 7. A Gunwall analysis is not required to justify an independent analysis of article I, section 7 in new contexts. It is not sufficient, however, “for parties to simply ‘mention our state constitution in their briefs’ and note that article I, section 7 is often more protective than the Fourth Amendment.” “Parties must provide argument and relevant authorities supporting the specific outcome they seek in light of ‘the constitutional text, the historical treatment of the interest at stake as reflected in relevant case law and statutes, and the current implications of recognizing or not recognizing an interest.’” State v. Mayfield, No. 95632-4 (Feb. 7, 2019).

Attenuation Doctrine. To comply with the heightened protections of article I, section 7, the attenuation doctrine must be narrow and apply only where intervening circumstances have genuinely severed the causal connection between official misconduct and the discovery of evidence.

We caution that the attenuation doctrine we adopt today must be narrowly and carefully applied. The State bears the burden of proving that the attenuation doctrine applies and that evidence is admissible despite a violation of article I, section 7. Armenia, 134 Wn.2d at 14. To meet its burden, the State must prove that unforeseen intervening circumstances genuinely severed the causal connection between official misconduct and the discovery of evidence. The State cannot meet its burden by merely showing that there are one or more additional proximate causes of the discovery of evidence. The question of whether intervening circumstances constitute a superseding cause is a highly fact-specific inquiry that must account for the totality of the circumstances, just as it is in the context of tort law. See Maltman v. Sauer, 84 Wn.2d 975, 982, 530 P.2d 254 (1975).

We also caution that the narrow attenuation doctrine we adopt today is entirely independent of the modem attenuation doctrine used by federal courts. As such, it is irrelevant to our state attenuation doctrine whether suppression in one case will deter similar misconduct in the future. It is also irrelevant whether the officer’s misconduct was merely negligent or was instead flagrant and purposeful. The only question is whether unforeseeable intervening actions genuinely severed the causal connection between official misconduct and the discovery of evidence.If not, then the attenuation doctrine does not apply, and the evidence must be excluded in accordance with article I, section 7 and our state exclusionary rule.

The newly adopted narrow state attenuation doctrine is not satisfied by an unlawfully detained suspect’s consent to search after Ferrier warnings. State v. Mayfield, No. 95632-4 (Feb. 7, 2019). Justice Johnson authored a concurring opinion.

This week the Court granted review in the following cases this week:

Persistent Offenders and Cruel Punishment. State v. Moretti, No. 95263-9. Grays Harbor County. “Granted on persistent offender sentence issue only.” Questions presented: (1) Does the Persistant Offender Accountability Act violate Article I, § 14, and the less-protective Eighth Amendment because it does not allow the sentencing court to consider the characteristics of the offender and his relative youth and culpability at the time of the commission of a predicate crime? (2) Should an additional factor be added to the Fain test: whether the sentence is proportional in light of the characteristics of the offender? (3) Whether automatic imposition of life without the possibility of parole based on a “strike” crime committed as a youthful offender violates the state and federal prohibitions against cruel and cruel and unusual punishment. COA opinion is unpublished. Petition for review pleadings available here.

Persistent Offenders and Cruel Punishment. State v. Nguyen, No. 95510-7. King County. “Granted only as to the issue of whether the persistent offender sentence is cruel & unusual punishment.” Question presented: “Where Nguyen was only 20 years old when he committed one of the predicate offenses, did imposition of a life sentence constitute cruel punishment in violation of the federal and Washington constitutions?” COA opinion is unpublished. Petition for review pleadings available here.

Persistent Offenders and Cruel Punishment. State v. Orr, No. 96061-5. Spokane County. “Granted only as to the persistent offender issue.” Question presented: Whether automatic imposition of life without the possibility of parole based on a predicate “strike” crime committed as a youthful offender violates the state and federal prohibitions against cruel and cruel and unusual punishment. COA opinion is unpublished. Petition for review pleadings available here.

Restitution. State v. Barbee, No. 96490-4. King County. “Granted only on the issue of whether the trial court had authority to enter a second restitution award.” Question presented: When an appellate court remands a case for resentencing may the court of appeals enter a new restitution order? COA opinion is unpublished. Petition for review pleadings available here.

Insurance Reimbursement. Group Health Cooperative v. Coon, No. 96516-1. COA opinion reported at 4 Wn. App. 2d 737 (2018). Petition for review pleadings available here.

Division One

Ex Post Facto and Community Custody. It violates the ex post facto clause to replace the variable term of community custody authorized by former RCW 9.94A.715(1) (2006), with the fixed term set by Laws of 2009, ch. 375, § 5. This is true even though the fixed term is the midpoint of the previously applicable variable range. In re Personal Restraint of Alston, COA No. 76497-7-I (Feb. 5, 2019).

WEEKLY ROUNDUP FOR FEBRUARY 1, 2019

Washington Supreme Court

Coroner Subpoena Power. A medical examiner or coroner (collectively “coroner”) must request a jury from the superior court before an inquest can begin. A coroner has the power to issue a subpoena only once he or she has requested a jury. who never begins an inquest does not have authority to issue a subpoena. Once an inquest is properly begun, the subpoena power granted by RCW 36.24.050 includes the power to bring a witness in to testify and the power to require a witness to bring physical items with him or her. A coroner may demand only that the witness bring the evidence to the inquest jury. The coroner is not entitled to summon the witness or the evidence to his or her office. BNSF Railway Company v. Clark, No. 95015-6 (Jan. 31, 2019).

Sexual Harassment and Employer Liability. Under the plain language of the Washington Law Against Discrimination, employers are directly liable for the sexual harassment of members of the public by their employees, just as they would be if their employees turned customers away because of their race, religion, or sexual orientation. Floeting v. Group Health Cooperative, No. 95205-1 (Jan. 31, 2019). Justices Madsen and Wiggins dissented.

Division Two

Early Release of “Juvenile Offenders.” Under RCW 9.94A.730(3), which allows an individual who has been sentenced under the Sentencing Reform Act for crimes committed prior to his/her eighteenth birthday to petition the Indeterminate Sentencing Review Board (ISRB) for release after 20 years of confinement, does not allow the ISRB to delay release and to impose pre-release conditions after it finds that an individual is not likely to reoffend. The offender in this case, however, is not now entitled to release because the ISRB subsequently found that he was likely to commit new criminal law violations based upon his subsequent conduct. In re Personal Restraint of Pugh, COA No. 50055-8-II (Jan. 29, 2019). Judge Lee dissented, contending that the offender was entitled to immediate release.

Division Three

Firearms and Terry Stops. The presence of a firearm in public is insufficient, standing alone, to support an investigatory stop. The presence of an individual openly carrying a handgun in a “high-risk setting,” is insufficient, standing alone, to support an investigatory stop. State v. Tarango, COA No. 35305-2-III (Jan. 31, 2019).

Police Department Policies and Local Initiatives. A local initiative may not be used to repeal an ordinance that codifies the city police department’s policy limiting questioning of individuals about immigration status and citizenship status. Global Neighborhood v. Respect Washington, COA No. 35528-4-III (Jan. 29, 2019).

Eleventh Circuit

Prosecutors and First Amendment Retaliation. A district attorney’s false statement made in retaliation for a former exonerated prisoner’s attempts to obtain legislative compensation for his wrongful convictions violated the prisoner’s First Amendment rights. The prisoner, however, is not entitled to compensation because the prisoner’s right to be free from retaliation under the First Amendment was not clearly established when the district attorney made the statement. Echols v. Lawton, No. 17-13843 (11th Cir. Jan. 25, 2019).

WEEKLY ROUNDUP FOR JANUARY 25, 2019

Division Two

“Free Crimes Aggravating Factor. The free crimes aggravator, RCW 9.94A.535(2)(c), applies when a defendant is charged with two current offenses and only one offense would go unpunished. State v. Smith, COA No. 50397-2-II (Jan. 23, 2019).

Public Records and Sex Offenders. Neither SSOSA or SSODA evaluations are exempt from disclosure. under the Uniform Health Care Information Act. Information in sex offender registration forms are not exempt under RCW 42.56.230(7)(a). RCW 42.56.230(7)(a) only exempts personal information that is actually submitted as part of an application for a driver’s license or identicard. RCW 4.24.550 is not an “other statute” that bars release of sex offender registration records. Juvenile records not found within the official juvenile court file are confidential under ch. 13.50 RCW and subject to the “other statute” exemption to the PRA. SSODA evaluations are exempt from disclosure under the “other statute” exemption as they are not part of the official juvenile court file. The Criminal Records Privacy Act does not mandate the release of juvenile SSODA records as the Act does not supplant ch. 13.50 RCW. Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).

Public Records Act. An agency is not required to first identify an exemption to disclosure before providing third-party notification of a PRA request pursuant to RCW 42.56.520(2). An agency does not “deny” access to records until it finishes producing all responsive documents. Accordingly, a requester may not initiate a lawsuit to compel compliance with the PRA until after the agency finishes producing all responsive documents. An agency is not required to provide records by e-mail or “the cloud.” Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).

Pseudonyms. The superior court erred by allowing sex offender registration complain level 1 sex offenders to proceed as Does in their action to prevent disclosure of records under the Public Records Act (PRA), without first conducting an Ishikawa analysis. Zink v. Pierce County, COA No. 48378-5-II (Aug. 21, 2018, amended and published Jan. 23, 2019).

Involuntary Commitment. A superior court is not required to consider voluntary treatment status when determining continued commitment under RCW 71.05.280. In re Detention of S.B., COA No. 50856-7-II (Jan. 23, 2019).

Ninth Circuit

Tribal Sovereign Immunity and Contracts. A tribe’s anticipatory defense of sovereign immunity to a state court lawsuit arising from a particular contract with the State of Washington, does not form a basis for federal question jurisdiction. Stillaguamish Tribe of Indians v. State of Washington, No. 17-35722 (9th Cir. Jan. 22, 2019).

WEEKLY ROUNDUP FOR JANUARY 18, 2019

Division Three

Signaling Turns. RCW 46.61.305(2) declares that a driver must, “when required,” continuously signal an intention to turn or cross lanes during at least the last one hundred feet traveled before turning or moving lanes. A driver, who moved left from a middle lane to a dedicated left turn lane while signaling his intention to change lanes, is not required to reactive his turn signal before turning left from the reserve lane unless public safety is implicated. Evidence discovered when a driver is stopped for failing to signal a turn when public safety is not implicated must be suppressed. State v. Brown, COA No. 35304-4-III (Jan. 17, 2018). Chief Judge Lawrence-Berrey dissented.

Public Records Act. A requester need not initiate legal action in order to be a prevailing
party entitled to fees under RCW 42.56.550(4). The requester substantially prevailed against the County’s request to withhold attorney invoices in their entirety and on his claim that the County must submit its proposed redactions to the court when requested in camera review. Asotin County v. Eggleston, COA No. 35720-1-III (Jan. 17, 2019).

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The most recent training is November 2018. Past trainings may be found here. Notices of future training sessions will appear in the weekly roundup as they are posted on the CJTC website.

Ninth Circuit

Vehicle Stops. Law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense. United States v. Landeros, No. 17-10217 (9th Cir. 2019).

WEEKLY ROUNDUP FOR JANUARY 11, 2019

United States Supreme Court

Qualified Immunity. The Ninth Circuit erred by applying a high level of generality to a question of qualified immunity. Rather than looking at the “right to be free of excessive force,” the court should have looked at whether clearly established law prohibited the officers from stopping and taking down a man in the specific circumstances presented in the case. Escondido v. Emmons, No. 17-1660 (Jan. 7, 2019).

Washington Supreme Court

Law of the Case Doctrine and Accomplice Liability. The State’s identification by name of the victim of the assault did not require the State to prove that the accomplice knew the names of all potential victims. All the State needed to prove was that the defendant had general knowledge of her coparticipant’s substantive crime. State v. Dreewes, No. 95551-4 (Jan. 10, 2019).

Sealing of Appellate Court Briefs. The defendant’s motion to seal those portions of the briefing that contained argument regarding her financial circumstances and ability to pay appellate costs was properly denied as the defendant did not establish that failure to seal would result in a “serious and imminent threat” to her interest. State v. Dreewes, No. 95551-4 (Jan. 10, 2019).

The Supreme Court granted review of the following cases this week:

Public Records. Hoffman v. Kittitas County, No. 96286-3. What impact should a finding of bad faith have upon the sanction imposed for a Public Records Act violation? COA decision reported at 4 Wn. App. 2d 489 (2018). Petition for review available here.

Identity Theft. State v. Cortes, No. 96397-5. Chelan County. In RCW 9.35.021(1), did the legislature intend the terms “means of identification” and “financial information” to create two alternative means of committing the crime of Identity Theft Second Degree? Are “owning,” “possessing,” and “control” alternative means of committing the crime of unlawful possession of a firearm? COA opinion reported at 5 Wn. App. 2d 86 (2018). Petition for review available here.

Community Custody. State v. Wallmuller, No. 96313-4. Mason County– State’s Petition. Whether a community custody condition prohibiting the defendant from loitering or frequenting “places where children congregate” is unconstitutionally vague. COA opinion reported at 4 Wn. App. 2d 698 (2018). Petition for review available here.

Jury Voir Dire and Murder Cases. State v. Pierce, No. 96344-4. King County– State’s Petition. “State’s petition for review granted; Pierce’s petition for review granted in part; consolidated with State of Washington v. Michael William Bienhoff, et al., Supreme Court number 96345-2″ Should State v. Townsend, 142 Wn.2d 838, 846 (2016), which prohibits a jury the the murder case they are being selected for does not involve the death penalty be overruled? COA opinion is unpublished. Petition for review available here.

Jury Voir Dire and Murder Cases. State v. Bienhoff, No. 96345-2. King County – State’s Petition. “Granted, consolidated with State of Washington v. Karl Emerson Pierce, et al., Supreme Court number 96344-4″ Should State v. Townsend, 142 Wn.2d 838, 846 (2016), which prohibits a jury the the murder case they are being selected for does not involve the death penalty be overruled? COA opinion is unpublished. Petition for review available here.

Timber Trespass and Agency. Porter & Zimmer v. Kirkendoll, No. 96214-6. COA opinion reported at 5 Wn. App. 2d 686 (2018). Petition for review available here.

Division Two

Civil Commitments and Involuntary Medication. A compelling state interest justified the involuntary administration of antipsychotics when doing so is likely to decrease the length of time a respondent will be detained for treatment. Sufficient evidence supported the order in this case as other alternatives would not address the symptoms of the respondent’s illness and would not enable to respondent to recover to the point where he could be discharged. In re Detention of B.M., COA No. 50699-8-II (Jan. 8, 2019). Judge Bjorgen dissented.

Legal Update for Washington State Law Enforcement

The December 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Second Amendment and Non-Citizens. A statute prohibiting the possession of firearms by an alien unlawfully present in the United States withstands constitutional scrutiny and is a valid exercise of Congress’s authority. United States v. Torres, No. 15-10492 (9th Cir. Jan. 9, 2019).

WEEKLY ROUNDUP FOR DECEMBER 28, 2018 & JANUARY 4, 2019

Washington Supreme Court

Ballot Title Challenges. Ballet title objections must be raised within 10 days of the public filing of that ballot title. A challenge asserting an alleged deficiency in the proposed levy lift language that was brought nearly 4 years after the ballot title at issue in this case is dismissed as untimely. End Prison Indus. Complex v. King County, No. 95307-4 (Dec. 27, 2018).

Reasonable Doubt Jury Instruction. The omission of the last sentence of WPIC 4.01, which states, “The defendant has no burden of proving that a reasonable doubt exists,” does not present a manifest constitutional error, which may be reviewed for the first time on appeal pursuant to RAP 2.5(a)(3). The Supreme Court mandated the use of WPIC 4.01 to promote uniformity and simplicity in defining a core concept of our justice system. The failure to instruct in the words of WPIC 4.01 is not a constitutional error. State v. Chacon, No. 95194-2 (Dec. 27, 2018). Justices González, Yu, Gordon McCloud and Fairhurst dissented.

Division One

County Liability and Oso Landslide. An action for damages predicated upon a county’s adoption of a flood control plan is barred by former RCW 86.12.037. An action for damages predicated upon a county’s involvement in the construction of a cribwall is barred by RCW 36.27.982, as a cribwall is a “fish enhancement project.” Slide victims cannot maintain a claim for damage to riparian rights where none of the slide victims own riparian rights. The county acted reasonably when it held a meeting to warn community members of the risk of future landslides and did not make promises that induced reliance on the part of the homeowners that caused them to refrain from seeking help elsewhere. The county’s act of distributing information at the community meeting did not expose the residents to the risk of the coming landslide. Regelbrugge v. Snohomish County, COA No. 76376-8-I (Dec. 31, 2018).

Division Two

Confrontation Clause and Data Extraction. The technician who performed the cell phone extraction was not a “witness” for purposes of the confrontation clause as this person made no comparison or conclusions from the extracted data. The Sixth Amendment right to confrontation was satisfied by the defendants’ ability to cross-examine the detective who drew conclusions from the extracted data. State v. Ramirez, COA No. 49245-8-II (Jan. 3, 2019).

Testimonial Hearsay and Sexual Assault Nurse Examiners. A deceased victim’s statements to a SANE nurse is testimonial hearsay under the primary purpose test. The admission of the statements at trial violated the confrontation clause. State v. Burke, COA No. 50053-1-II (Dec. 27, 2018).

Ineffective Assistance of Counsel and Plea Negotiations. Defense counsel’s provision of misinformation during the plea negotiation process of the potential sentence range the defendant faced if found guilty on all charges at trial amounted to ineffective assistance of counsel. The matter is remanded to the trial court with a requirement that the State reoffer the final 50-month plea offer, subject to the defendant’s and the court’s acceptance of a guilty plea. If either the court rejects the guilty plea or the defendant declines to plead guilty, the defendant’s trial conviction and sentence will stand. State v. Drath, COA No. 49403-5-II (Dec. 27, 2018). Judge Melnick dissented on the grounds that the defendant did not establish prejudice as she failed to show a reasonable probability that, but for counsel’s deficient representation, she would have accepted the State’s final plea offer.

Washington State Attorney General

Marijuana and Clean Air. Local clean air agencies have broad authority to enforce the Clean Air Act, even if the Department of Ecology has not set minimum standards. Local authorities may use state regulations as a minimum standard when regulating odors. A regional clean air agency must follow the procedures set forth in the Clean Air Act prior to any rulemaking or enforcement actions. No statute deprives local clean air agencies of their authority to enforce the Clean Air Act with respect to marijuana. AGO 2018 No. 10 (Dec. 26, 2018).

WEEKLY ROUNDUP FOR DECEMBER 21, 2018

Division One

Right to Impartial Jury. The trial court did not violate the represented defendant’s right to an impartial jury by not sua sponte dismissing a prospective juror for cause. While the juror admitted domestic violence was an emotional issue, the juror did not express unqualified statements expressing actual bias. The juror further assured both counsel that he could look at the case as instructed and based on the evidence despite his feelings that African American men are more prone to violence. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).

Smith Declarations. The victim’s sworn written statement to responding officers that the defendant choked her was properly admitted pursuant to ER 801(d)(1)(i). The victim’s testimony that she did not remember whether she was choked, kicked, or nearly thrown down the stairs was inconsistent with her prior statements. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).

No Contact Orders. The entry of a no contact order barring the defendant from any contact with the victim and his step-daughter did not make it impossible for the defendant to parent his own child. Although not having contact with the victim will make access to his child more difficult, the defendant can still have supervised visitation without the mother present. State v. Phillips, COA No. 76518-3-I (Dec. 17, 2018).

Adoptive Admissions. The proponent of adoptive admissions must submit and the court must give an instruction to the jury that informs the jury that it cannot consider proposed adoptive admissions as evidence unless it finds under the circumstances that the defendant heard, understood, and acquiesced in the statements. In the instant case it was error to admit text messages as adoptive admissions. While the defendant received and responded to the text messages sent by the victim, he did not affirmatively agree with the accusatory text message statements she made. The defendant’s deflection–moving the discussion in another direction – is insufficient for a jury to conclude that the defendant acquiesced or acceded in the truth of the statements. It was error, therefore, to admit the statements pursuant to ER 801(d)(2)(ii). State v. Hill, COA No. 75947-7-I (Dec. 17, 2018).

Offender Scores. A non-comparable out-of-state conviction will not prevent washout of prior offenses under RCW 9.94A.525(2)(c). State v. Marquette, COA No. 77197-3-I (Dec. 17, 2018).

Felony DUI and Qualifying Prior Offenses. The existence of four (now three) or more prior DUI offenses within 10 years is an essential element of felony DUI, and must be proven beyond a reasonable doubt. Whether a prior conviction meets the statutory definition of prior offense contained in RCW 46.61.5055 is a threshold question of law to be decided by the trial court. Whether a reckless driving conviction involved alcohol is a threshold question for the court, not a question for the jury. The State’s presentation of certified copies of the original criminal complaint and the district court’s judgment and sentence was sufficient to allow the judge to determine that the reckless driving convictions involved alcohol. State v. Wu, COA No. 77045-4-I (Dec. 17, 2018). Justice Becker dissented. [Editor’s note: This opinion creates a split with Division Two. See State v. Mullen, 186 Wn. App. 321, 227 (2005).]

Division Two

Involuntary Commitment. A respondent may be gravely disabled under former RCW 71.50.020(17)(b), despite the lack of prior hospitalizations or law enforcement interventions. A respondent does not have a constitutional or statutory right to a less restrictive alternative placement. Thus, a respondent’s due process rights are not violated when the State does not submit its recommendation for outpatient treatment. In re Detention of D.W., COA No. 50817-6-II (Oct. 16, 2018, publication ordered Dec. 18, 2018).

Felony Firearm Offender. When the evidence at trial was that either a knife or a firearm was used in the commission of the second degree assault, a defendant may only be ordered to register as a felony firearm offender when the jury renders a special verdict finding that the weapon used was a firearm. State v. Rios, COA No. 50035-3-II (Dec. 18, 2018).

First Aggressor Instruction. The first aggressor jury instruction, WPIC 16.04, must be modified to advise the jury that words alone are not sufficient to make a defendant the first aggressor in an altercation. State v. Kee, COA No. 50203-8-II (Dec. 18, 2018).

Division Three

Time for Trial. Release from custody pursuant to the prosecuting attorney’s oral motion extended the time for trial deadline by an additional 30 days. The lack of a written motion filed at least five days before the court hearing does not render the release order invalid. State v. Maling, COA No. 35272-2-III (Dec. 18, 2018). Judge Fearing dissented.

Law Enforcement Digest Online Training

The Washington State Criminal Justice Training Commission now offers online training instead of the previous written digests. The online training sessions are of high quality and are applicable to prosecuting attorneys. The most recent training is October 2018. Past trainings may be found here. Notices of future training sessions will appear in the weekly roundup as they are posted on the CJTC website.

Ninth Circuit

Vehicle Impounds. Impounding vehicles of drivers who have never been issued a driver’s license for a period of 30-days when the drivers attempted to have friends with valid licenses take possession of the vehicle was unreasonable under the Fourth Amendment. Although the state’s interest in keeping drivers off the road provided a “community caretaking” exception to the Fourth Amendment, the application of the exception turns on the facts and circumstances of each case. Continued impoundment of these vehicles was not justified as a deterrence or penalty. Sandoval v. City of Santa Rosa, No. 16-16122 (9th Cir. Dec. 21, 2018).

WEEKLY ROUNDUP FOR DECEMBER 7, 2018 & DECEMBER 14, 2018

Washington Supreme Court

Double Jeopardy. Facts that increase the mandatory minimum and are subject to the Sixth Amendment’s right to trial by jury will also be subject to the Fifth Amendment’s double jeopardy clause. If a jury unanimously acquits a jury of an RCW 10.9.020 aggravating circumstances, the prohibition on double jeopardy bars retrial on those aggravating circumstances. State v. Allen, No. 95454-2 (Dec. 13, 2018).

Hydraulic Projects. The Department of Fish and Wildlife’s permitting authority over hydraulic projects includes projects above the ordinary high-water line that affect state waters. Spokane County v. State Department of Fish and Wildlife, No. 95029-6 (Dec. 6, 2018). Justice Gordon McCloud authored a concurring opinion which was joined by Justice Gonzàlez.

Division One

Insanity Acquittees. An order granting or denying an individual who was found not guilty of a crime by reason of insanity’s petition for final release pursuant to RCW 10.77.200 is appealable as a matter of right under RAP 2.2(a)(13). The order denying final release is affirmed as continued supervision is required for public safety due to the nature of the petitioner’s mental illness. State v. Coleman, COA No. 76851-4-I (Dec. 10, 2018).

Preliminary Appearances. CrRLJ 3.2.1 requires an individual who is subjected to a warrantless arrest and held in jail, to be brought before a judicial officer for a preliminary hearing the next court day following the arrest. The filing of a notice of disqualification does not waive a defendant’s right to a timely preliminary appearance hearing. Khandelwal v. Seattle Municipal Court, COA No. 78058-1-I (Dec. 3, 2018).

Early Release of “Juveniles.” Early release is presumptive under RCW 9.94A.730(3) unless the ISRB determines that the petitioner is more likely than not to reoffend. The ISRB abused its discretion by denying release to a woman who committed murder at age 15, who had no infractions since 2008 and whose psychological evaluation indicated she was a low risk to reoffend. In re Personal Restraint of Brashear, COA No. 77047-1-I (Dec. 3, 2018).

School Searches. Drugs found in a 14-year-old child’s backpack in a search conducted by the vice principal were suppressed because the search was not reasonable when the child was not a student of the school, the vice principal knew nothing about the child’s history or school record, there was no record of a drug problem at the school, and there was no exigency to conduct the search as police officers were already on their way to the school. State v. A.S., COA No. 76823-9-I (Dec. 3, 2018).

Division Two

Involuntary Commitment of Persons Incompetent to Stand Trial. The law does not provide mentally ill persons found incompetent to stand trial for felony charges the legal opportunity to become good faith voluntary patients. In re the Detention of P.P., COA No. 50773-1-II (Dec. 11, 2018).

Exceptional Sentences. The “substantially exceeds” aggravating factor, RCW 9.94A.535(3)(y), applies to a conviction for the crime of hit and run (injury). The jury’s finding by special verdict alone provides a sufficient basis on which to justify a defendant’s exceptional sentence. A trial court errs by making additional findings of fact in support of the exceptional sentence. State v. Perry, COA No. 49913-4-II (Dec. 11, 2018).

Aggravated First Degree Murder Sentences for “Juveniles.” A minimum term of 48 years was not supported by substantial evidence of “irreparable corruption, permanent incorrigibility, and irretrievable deparvity,” where the defendant’s last prison infraction occurred six years prior to the hearing to set the minimum term and did not exhibit a pattern related to the murder he committed. The court failed to meaningfully consider juveniles” underdeveloped executive brain functioning and the greater prospects for reform from a crime committed prior to a defendant’s eighteenth birthday. State v. Delbosque, COA No. 49792-1-II (Dec. 4, 2018).

Division Three

Public Trial. The public trial right does not apply to rulings excluding witnesses under ER 615. The public trial right does apply to motions in limine that are raised before testimony. A new trial is ordered because the chambers conference on the motion to exclude a witnesses’ testimony was not a de minimis violation of the public’s right to open courts. State v. Karas, COA No. 34899-7-III (Dec. 13, 2018). Judge Fearing dissented on the grounds that the public trial right extends to an ER 615 motion.

Public Records Act and Polygraphs. An individual’s action to enjoin disclosure under the Public Records Act (PRA), which consisted of a six-page pleading containing an ex parte motion requesting a TRO and eventual permanent injunction, a declaration of facts, and a memorandum of authorities, “substantially complied” with RCW 4.28.020’s statutory requirement of filing a complaint to vest the superior court with jurisdiction over the case. A polygraph report taken by peace officers as part of a pre-employment screening qualifies as “other related materials submitted with respect to an applicant” which is exempt under RCW 42.56.250(2). The police officer, however, is not entitled to enjoin dissemination of the record that the agency elected to disseminate in response to a PRA request as the redacted polygraph report discloses numerous instances of theft and dishonesty and the public has an interest in knowing whether a particular officer is law abiding. Sheats v. City of East Wenatchee, COA No. 35555-1-III (Dec. 11, 2018). [Editor’s note: Both the Wenatchee City Attorney’s Office and the Douglas County Prosecuting Attorney’s Office should be commended for their handling of potential impeachment evidence.]

Traffic Stops. RCW 46.61.670, which makes it a traffic infraction to operate a vehicle with one or more wheels off a designated roadway, affords no room for error. Even a minor, momentary violation meets the terms of the statute and can provide a basis for a traffic stop and imposition of an infraction. RCW 46.61.140(1) only applies in circumstances where a vehicle momentarily crosses from one lane of travel into a neighboring lane traveling the same direction. State v. Alvarez, COA No. 34711-7-III (Dec. 4, 2018). Judge Lawrence-Berrey dissented.

Public Trial. Defendant forfeited appellate review by expressly declining to seek a new trial after being advised of the factual basis for a public trial violation. State v. Hernandez, COA No. 34816-4-III (Dec. 6, 2018).

Attorney Withdrawal. A defendant’s absence from a hearing on defense counsel’s motion to withdraw is not per se reversible error. A defendant who is seeking relief due to his absence bears the burden of demonstrating the reason for the withdrawal motion and why his input might impact the court’s ruling on the motion. State v. Hernandez, COA No. 34816-4-III (Dec. 6, 2018).

Credit for Time Served. A defendant may not receive credit for time served for a community custody violation in a prior unrelated felony case upon conviction of a new felony case. Post Sentencing Petition of Allery, COA No. 35284-6-III (Oct. 16, 2018, publication ordered Dec. 4, 2018).

Washington State Attorney General

Mandatory Sick Leave. Employees who fall within the definition of “employee” for minimum wage purposes are entitled to paid sick leave under RCW 49.46.200-.210. The definition of “employee” is that contained in RCW 49.46.010(3). “Employee” does not include “Any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature.” RCW 49.46.010(3)(l). Effective January 1, 2018, employees who had worked for the employer in question for at least 90 days became entitled to use sick leave. Under RCW 49.46.210 and WAC 296-128-620, employers are required to carry over up to 40 hours of unused paid sick leave during the following year, whether that leave is “front-loaded” or “accrued.” AGO 2018 No. 9 (Dec. 5, 2018).

Legal Update for Washington State Law Enforcement

The November 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR NOVEMBER 30, 2018

Washington Supreme Court

Retaliatory Discharge. An employee presents sufficient evidence to survive summary judgment in an action under the Washington Law Against Discrimination where by demonstrating that the employer “knew or suspected” the employee had previously been involved in a protected activity. An employer has actual knowledge that the employee engaged in an alleged protected action, i.e. filed a prior lawsuit, even though the employer does not know the substance of the prior lawsuit. The “knew or suspected” standard incorporates the actual knowledge standard and also encompasses cases in which the employer suspects that an employee engaged in protected action. This standard applies, for example, when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion. Cornwell v. Microsoft Corp., No. 94846-1 (Nov. 29, 2018). Justice Gordon McCloud was the lone dissenter.

Division One

Unlawful Practice of Law. RCW 2.48.180(2)(a), which states that the unlawful practice of law occurs when a “nonlawyer practices law, or holds himself or herself out as entitled to practice law, is not unconstitutionally vague. RCW 2.48.180(2)(a) is a strict liability offense. Using GR 24 to define the practice of law in a jury instruction is not error. State v. Yishmael, COA No. 76802-6-I (Nov. 26, 2018).

Community Custody. RCW 9.94A.701(9) precludes a court from imposing a exceptional period of incarceration below the standard range so as to accommodate a mandatory term of community custody. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).

Duty to Register as a Sex Offender. Notice in a judgment and sentence as to termination of the duty to register as a sex offender should be consistent with RCW 9A.44.140(3), which does not require a court order to affirmatively relieve some sex offenders of the duty to register. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).

DNA Fee. The DNA collection fee may only be stricken when a defendant with prior convictions establishes that the State has already collected his DNA. State v. Thibodeaux, COA No. 76818-2-I (Nov. 26, 2018).

14-Day Involuntary Treatment Commitment Order. Former RCW 71.05.154 (2013) did not create an affirmative obligation for a designated mental health professional to consult with an emergency room physician before making the decision to detain a person, when there was no examining emergency room physician present or involved in the person’s care. In re Detention of C.A.C., COA No. 77173-6-I (Nov. 26, 2018).

Community Custody Conditions. A condition that bars the defendant from “associat[ing] with known users or sellers of illegal drugs” is not unconstitutionally vague. The condition only applies to persons who are known to the defendant to be users or sellers of illegal drugs and who are currently engaging in the activity. The phrase “illegal drugs” includes Marijuana which is still prohibited by federal law. In re Personal Restraint of Brettell, COA No. 76384-9-I (Nov. 19, 2018).

Division Two

Residential Burglary. The fact that nobody had leaved in a house for 15 months prior to the burglary, that the windows had been boarded up and the broken front door had been secured, and there was no evidence of a plan for someone to resume living in the residence at the time of the burglary, did not prevent the house from being a “dwelling.” Other factors supported a finding that the house constituted a dwelling included that the house had been used for lodging for almost 30 years, the house had never been used for anything other than lodging, the house was fully furnished with furniture in every room and appliances, and the owner of the house left clothing and personal belongings in the house. Finally, the owner, who was forced to leave because of age-related health problems, continued to regard the house as her abode. State v. Hall, COA No. 50543-6-II (Nov. 27, 2018).

Washington Attorney General

LEOFF Plan 1 Members and Medical Marijuana. A city or county disability board may permissibly reimburse LEOFF Plan 1 members for their authorized use of medical marijuana, if that use is properly authorized and if the board determines use of marijuana is medically necessary. The potential effect, if any, of a board’s reimbursement decision on city or county eligibility for federal funding depends on federal policy and the conditions of specific federal grants. AGO 2018 No. 8 (Nov. 21, 2018).

Municipal Research and Services Center (MRSC)

Gifts. Quick primer on the law regarding the acceptance of gifts by county employees. Paul Sullivan, Oh Boy! A Gift! (Nov. 26, 2018).

WEEKLY ROUNDUP FOR NOVEMBER 23, 2018

Washington Supreme Court

Gross Negligence. “To survive summary judgment in a gross negligence case, a plaintiff must provide substantial evidence of serious negligence. In determining whether the plaintiff has provided substantial evidence, the court must look at all the evidence before it, evidence that includes both what the defendant failed to do and what the defendant did. If a review of all the evidence suggests that reasonable minds could differ on whether the defendant may have failed to exercise slight care, then the court must deny the motion for summary judgment. But if a review of all the evidence reveals that the defendant exercised slight care, and reasonable minds could not differ on this point, then the court must grant the motion.” Applying this test, summary judgement was properly granted to DOC in a failure to supervise case. DOC did not act with gross negligence in a case in which a defendant, who was subject to supervision, murdered his long-time girlfriend 15 days after he was released from prison. DOC reasonably relied upon the girlfriend’s explicit assurances that she was not in a relationship with the defendant, that she was moving to a place where he could not fine her, and that she would call the police if she saw them. The defendant’s mother had also verified in writing that the defendant was sleeping at her home. Harper v. State, No. 95511-5 (Nov. 21, 2018).

Division Two

Self-Incrimination. Article I, section 9 provides the same protection as the Fifth Amendment. Neither a corporation nor corporate officers acting on behalf of the corporation are protected by the constitutional privilege against self-incrimination. The same rule applies to a limited liability company. An individual must invoke the protections of the Fifth Amendment as to specific topics or on a question-by-question basis, blanket assertions of privilege are insufficient. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).

Civil Investigative Demand. A civil investigative demand (“CID”) issued and served pursuant to RCW 19.86.110 is not an unconstitutional intrusion into private affairs without authority of law. A corporation’s business records are not “private affairs” for purposes of article I, section 7. A CID is not an unreasonable search under the Fourth Amendment. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018). Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).

Article I, Section 7. The protections of article I, section 7 are not limited to Washington citizens. The constitutional guarantee extends to all persons within the state of Washington. Brelvis Consulting LLC v. State, COA No. 50235-6-II (Nov. 20, 2018).

Other

Controlled Substance Homicides. Newly created Drug-Induced Homicide Defense Toolkit is available to the public. Worth viewing when making charging decisions and other discretionary decisions in these cases. Health in Justice Action Lab, Northeastern University School of Law, Drug Induced Homicide Defense Toolkit (Preliminary Version Oct. 12, 2018). Most current version will be available here.

WEEKLY ROUNDUP FOR NOVEMBER 16, 2018

Division One

Felony Traffic Sentencing. While prior serious traffic offenses are excluded from calculation of the offender score for vehicular homicide, they are properly included in the offender score calculation for felony hit-and-run. The 24-month vehicular homicide enhancements are added to the standard sentence range for vehicular homicide, not to the standard sentence range for any other current offense. In re Personal Restraint of Raymundo, COA No. 73998-1-I (Nov. 13, 2018).

Division Two

Pre-Trial Restraint. A trial court’s failure to make an individualized determination on the necessity of pretrial restraints violates a defendant’s due process rights. State v. Lundstrom, COA No. 49709-3-II (Nov. 15, 2018).

Division Three

Competency to Stand Trial. A court must continue to monitor the mental health of the accused and must order another mental health evaluation if, subsequent to a jury finding that the accused is competent to stand trial, a substantial change in circumstances raises a reasonable doubt as to the accused’s competency. State v. McCarthy, COA No. 34859-8-III (Nov. 15, 2018). Judge Siddoway dissented.

“Wash-Out.” Incarceration for willfully failing to pay legal financial obligations will not prevent a prior offense from washing out for purposes of calculating the offender score. Such detention is not pursuant to a felony conviction. State v. Schwartz, COA No. 35171-8-III (Nov. 15, 2018). [Editor’s Note: Division Three’s decision is inconsistent with Division One’s holding in State v. Mehrabian, 175 Wn. App. 678, review denied, 178 Wn.2d 1022 (2013).]

Legal Update for Washington State Law Enforcement

The October 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Florida Supreme Court

Will You Be My Friend. An allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. Law Offices of Herssein and Herssein, P.A., v. United States Automobile Association, No. SC17-1848 (Fla. Nov. 15, 2018).

WEEKLY ROUNDUP FOR NOVEMBER 9, 2018

United States Supreme Court

Age Discrimination in Employment Act. The federal Age Discrimination in Employment Act applies to all state and local governments, regardless of how many employees they have. Mount Lemmon Fire Dist. v. Guido, No. 17-587 (Nov. 6, 2018).

Washington Supreme Court

Expiration of Prison Sentence. When a defendant receives consecutive SRA sentences, DOC has the authority to hold the defendant in custody up to the sum of the multiple terms– i.e. three consecutive, 114-month terms, allow DOC to hold a defendant in custody up to 342 months. Personal Restraint of Gronquist, No. 94971-9 (Nov. 8, 2018).

Competency Restoration. The defendant’s due process rights were violated when he was detained in the county jail for 76 days before his admission to Washington State Hospital for competency restoration treatment. Dismissal of charges with prejudice for this violation of the defendant’s due process rights is not warranted. State v. Hand, No. 94902-6 (Nov. 8, 2018). Justices Madsen and Stephens would, if timely asserted by the defendant, apply the Sixth Amendment speedy trial analysis to any delay in the start of competency restoration treatment.

Privacy Right to Medical Records. The Uniform Health Care Information Act, chapter 70.02 RCW, does not carve out a duty to non-health-care providers to protect the privacy of a patient’s health care information. The Department of Correction was not required to obtain authorization from an inmate before removing and reviewing medical records that were in the inmate’s cell. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Search Warrants. A search warrant must be supported by probable cause that evidence of the crime can be found at the place to be searched. “Evidence of the crime” is not limited to evidence proving a crime was committed. “Evidence of the crime” can relate to evidence that is relevant to sentencing and/or to a defendant’s ability to form the mens rea of the crime. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Particularity Requirement. A search warrant that authorized the search and seizure of the prison’s inmate property and storage room, the prison’s administration building, as well as any ant all records for an inmate, which was accompanied by the search warrant affidavit that was both physically attached and incorporated by reference, authorized the search of a medical records room located in the prison and adequately described the items to be seized. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

CrR 3.1. Statements made by a defendant prior to being charged with a crime were not subject to suppression for an alleged violation of CrR 3.1. Defendant was placed into contact with an attorney at 9:00 a.m., the morning following his 9:00 p.m. arrest for murdering a prison guard. The delay in putting the defendant into contact with an attorney was justified because (1) detectives
needed to obtain a search warrant, (2) there was a risk to prison security and the lockdown of other inmates, (3) there was concern for the safety of the defendant, and (4) restrictions were placed on the facility due to the lockdown. Any alleged violation, moreover, was harmless as the defendant provided a videotaped statement after he met with two attorneys who both advised him to not speak to the police. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Jail Detention. A defendant, who was detained at the Snohomish County Jail, following his arrest for the murder of a prison guard, in the absence of a contract between the Department of Corrections and Snohomish County in violation of RCW 72.68.050, is not entitled to the suppression of statements made while housed at the jail. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

CrR 3.2.1(d)(1). While CrR 3.2.1(d)(1) requires that a person be brought before a judge “as soon as practicable” following a warrantless arrest, does not support overruling State v. Hoffman, 64 Wn.2d 445 (1964), which makes any unnecessary delay in the preliminary appearance one factor to consider when determining whether a confession is involuntary, rather than an automatic basis for excluding statements. Custody for purposes of Miranda does not establish “detention” for purposes of CrR 3.2.1. The defendant, who was already in prison serving a life sentence for another crime, was not detained for purposes of CrR 3.2.1 until he was booked for the murder of Officer Biendl. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Voluntariness of Confessions. The defendant’s videotaped statements were not rendered involuntary by the harsh conditions of solitary confinement that the defendant was subjected to following the murder of prison Officer Biendl. The defendant was repeatedly advised of his Miranda rights, met with attorneys twice before his first interview with police, met with an attorney before his third interview, was calm and cooperative, selectively answered questions, and confessed because of the intolerable guilt arising from his actions. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

ER 403. An objection that evidence is not relevant is insufficient to preserve a claim that the trial court should have excluded the evidence on ER 403 grounds of unfair prejudice, confusion of issues, or misleading the jury. A trial court is only required to conduct an ER 401 analysis to a relevancy objection. A trial court is not also required to conduct an ER 403 analysis when a party asserts a relevancy objection. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Opinion as to Guilt. A detective’s out-of-court questions to the defendant and their answers were properly admitted at trial. Neither of the post-Miranda-waiver questions– what the defendant would say of Officer Biendl’s death if she could hear him now and whether the defendant was sorry that Officer Biendl was dead – went to the defendant’s state of mind and were not unduly prejudicial. The detective’s reference to “the murder” was also not substantially prejudicial. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Exercise of Constitutional Rights. While the State may not draw adverse inferences on a defendant’s exercise of his constitutional rights, statements of a defendant regarding his desire for a speedy resolution of murder charges were properly admitted to demonstrate the defendant’s reasoning for speaking with the police and that his statements were voluntary and credible. It was also not error to admit the defendant’s statements that he was disregarding his attorney’s advice by speaking with the detectives. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Jury Selection. The prosecuting attorney did not violate the prohibition upon private communications between prosecutors and jurors, when during voir dire, he smiled at the jurors, made eye contact with the jurors, and thanked the excused jurors for their service. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Premeditation. The trial court did not err by utilizing WPIC 26.01.01 instead of the deffendant’s proposed premeditation instruction. The prosecuting attorney did not conflate intent to kill with premeditation in his closing arguments. State v. Scherf, No. 88906-6 (Nov. 8, 2018).

Division One

Duress. Duress is not a defense to the aggravating factors of robbery and kidnapping when the charge is aggravated first degree murder. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).

Closing Argument. The prosecutor erred by inviting the jury to imagine what the victim was thinking and feeling in the hours before her murder. The prosecutor also erred by telling the jurors that duress is not a defense to murder and by defining duress for them after the trial court refused to instruct the jury on duress regarding the aggravating factors and because the defense did not argue that the defendant should be acquitted because he killed the victim out of fear of a co-participant. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).

Juror Issues. The bailiff did not violate CrR 6.15(f)(1) by separating a juror who communicated safety concerns from the other jurors and after discerning the nature of the juror’s distress, promptly notified the court and counsel of the juror’s concerns. The defendant’s right to a public trial was not violated by the bailiff’s initial out-of-court communications with the juror where the juror’s safety concerns were promptly referred to the court and all subsequent discussion of the juror’s safety concerns occurred in open court in the presence of the defendant. The dismissal of the juror, who suffered a heart attack and who could not return for deliberations did not violate the defendant’s right to a unanimous jury. A juror’s statement after hearing the medical examiner’s testimony and prior to the start of deliberations that “I hope they fry the fucking bastard,” inheres in the verdict and will not support a motion for a new trial. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).

Autopsy Photos. The trial court did not abuse its discretion by admitting 15 of 100 autopsy photographs over the objection of the defendant. The probative value of the photographs in helping to illustrate the medical examiner’s testimony outweighed their prejudicial effect. State v. Whitaker, COA No. 75924-8-I (Nov. 5, 2018).

Pro Se Defendants. The trial court did not abuse its discretion by denying the defendant’s multiple requests for standby counsel. A pro se defendant, who was removed from court following disruptive conduct and the defendant’s statement that “You can hold your trial without me,” did not voluntarily absent himself from the trial. Questioning witnesses after the defendant was removed from the courtroom violated the defendant’s right to representation. The trial court should have appointed counsel to question the witnesses’ in the defendant’s absence, recessed to give the defendant time to calm down, have the defendant attend trial via video conference or provide the defendant with a recording of the missed testimony and allow the defendant the opportunity to cross-examine the witness, or restrained the defendant in the courtroom. State v. Davis, COA No. 76806-9-I (Nov. 5, 2018).

Division Two

Community Custody. Attempted failure to register as a sex offender is not a sex offense for which community custody is authorized. In re Postsentence Review of Thompson, COA No. 50767-6-II (Nov. 6, 2018).

Ninth Circuit

Confrontation Clause and Physical Confrontation. Testimony from victim from her hospital bed in Minnesota via two-way video violated the defendant’s Sixth Amendment right to confrontation. The victim’s inability to travel to the trial location was due to a temporary pregnancy-related condition, so a continuance of the trial was a more appropriate solution. Testimony from a remote location requires proof that the witness is not being coached or influenced during testimony, that the witness is not improperly referring to documents, that the witness has an adequate view of the courtroom, and that the jury has an adequate view of the witness. United States v. Carter, No. 16-50271 (9th Cir. Nov. 2, 2018).

Fifth Amendment and Subpoenas. A record custodian for a collective entity, even a small, closely-held entity, may not invoke his Fifth Amendment privilege against self-incrimination to resist producing the collective entities’ documents. In re Twelve Grand Jury Subpoenas, No. 17-17213 (9th Cir. Nov. 8, 2018). [Editor’s note: This decision should apply equally to subpoenas issued in Chapter 10.27 and 10.29 RCW proceedings.]

WEEKLY ROUNDUP FOR NOVEMBER 2, 2018

Washington Supreme Court

Batson. The third step of a Batson challenge to a peremptory strike of a juror in Washington is modified. At the final step, the trial court must ask whether an objective observer could view race or ethnicity as a factor in the use of peremptory strike. If so, then the strike must be denied and the challenge to that strike must be accepted. The State’s use of a peremptory strike against the only remaining African-American jury based upon the juror’s statements that voir dire was a “waste of time”, his specific knowledge of the move 12 Angry Men, and his brining outside evidence into jury deliberations as a juror in a previous trial violates this new test as the juror’s statements were not that different from answers provided by jurors who were not subject to peremptory strikes. State v. Jefferson, No. 84853-4 (Nov. 1, 2018). Justices Yu and González concurred with the lead opinion but she “remain(s0) convinced that nothing short of complete abolishment of the peremptory challenge, coupled with further development of our “for cause” challenge jurisprudence, will get us on the right path toward finally eradicating racial bias in jury selection.” Justices Madsen, Johnson and Stephens objected on the grounds that GR 37 was never meant to be a constitutional rule backed by constitutional protections.

Certificate of Discharge. The effective date for the issuance of a certificate of discharge for an offender who is not under Department of Corrections custody is the date the offender completed all the terms of the sentence, rather than the date the court received notice that the offender completed all terms of the sentence. State v. Hubbard, No. 95012-1 (Nov. 1, 2018).

The Washington Supreme Court granted review of the following cases this week:

Concealed Pistol License. Barr v. Snohomish County Sheriff, No. 96072-1. Snohomish County–County’s Petition for Review. Questions presented: (1) May an individual convicted of a Class A felony as a juvenile use RCW 13.50.260 as an alternative mechanism to judicially restore his/her firearm rights, thereby avoiding the restoration prohibition stated in RCW 9.41.040? (2) Does RCW 9.41.070 require a law enforcement agency to issue a Concealed Pistol License to an individual with a Class A felony that has been sealed pursuant to RCW 13.50.260? COA opinion reported at 4 Wn. App. 2d 85 (2018). Appellate court pleadings available here.

Impound Inventories. State v. Peck, No. 96069-1 and State v. Tellvik, No. 96073-9. Kittitas County – State’s Petition for Review. Question presented: Whether the contents of a zippered CD case located in a stolen vehicle in the course of an inventory search were obtained in violation of article 1, section 7, when neither occupant of the stolen truck asserted any possessory interest in the CD case. COA opinions are unpublished – Peck and Tellvik . Appellate court pleadings available here.

Double Jeopardy and Cell Phone “Ping.” State v. Muhammad, No. 96090-9. Asotin County. Questions presented: Whether the warrantless search of transmissions between a cell phone and cell towers to obtain real-time location information was justified by exigent circumstances. Whether the exclusionary rule applies to the search of the vehicle, where the search of the car was independently authorized by a search warrant supported by probable cause and any connection between the “ping” and the search of the vehicle was sufficiently attenuated to dissipate any taint.. Whether entry of convictions and sentences for rape and felony murder predicated upon the same rape violates double jeopardy or merger. COA opinion reported at 4 Wn. App. 2d 31 (2018). Appellate court pleadings available here.

Home Financing. Wash. State Housing Fin. Comm’n v. Nat’l Homebuyers Fund, Inc., No. 96063-1. Questions presented: Whether the Washington State Housing Finance Commission has standing to bring a declaratory judgment action to prohibit a California non-profit from engaging in mortgage finance activities in Washington. Whether the California non-profit may lawfully engage in mortgage finance activities in Washington. COA opinion is unpublished. Appellate court pleadings available here.

Division One

Fellow Officer and Warrantless Arrests. Under the post-State v. Bravo Ortega, 177 Wn.2d 116 (2013), amendment to RCW 10.31.100, the fellow officer rule applies to arrests for non-felony offenses. The plain language or RCW 10.31.100(1), moreover, allows for application of the fellow officer rule to arrests for select non-felony offenses, including theft. State v. Perez, No. 76902-2-I (Oct. 29, 2018).

Ninth Circuit

“Ruse” Warrantless Entries. A “ruse” entry is when a known government agent misrepresents his purpose in seeking entry. An officer’s warrantless entry into a home via a ruse such as by asking the homeowner for assistance in a fictitious criminal investigation, violates the Fourth Amendment. Whalen v. McMullen, No. 17-35267 (9th Cir. Oct. 31, 2018).

WEEKLY ROUNDUP FOR OCTOBER 26, 2018

Division One

Involuntary Commitments. A court may dismiss a meritorious petition for involuntary commitment for a person who, as a result of a mental disorder, “presents a likelihood of serious harm, or is gravely disabled.” A nonlicensed facilities provision of treatment under a single bed certification that is not specific to the detained person and that fails to include a description of why the detained person being committed can receive appropriate mental health treatment as the facility will not require the reversal of a 14-day commitment order as it is not a total disregard of the involuntary treatment act requirements. In re Detention of C.V., COA No. 77057-8-I (Oct. 22, 2018).

Division Three

Eyewitness Identification. Defense counsel must assert an ER 403 objection that a witness’s identification of the defendant is more prejudicial than probative due to its unreliability to preserve the issue on appeal. RAP 2.5(a)(3) does not all the claim to be raised for the first time on appeal as the error is not manifest and the claims regarding suggestiveness rely upon empirical studies or law enforcement policies that were not offered in the trial court and law enforcement was never questioned about their reasoning for engaging in two pretrial identification interviews and for not using a double-blind procedure. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018, partial publication ordered Oct. 23, 2018).

Historic Cell Site Analysis. An FBI special agent’s cell site analysis was admissible under Frye and ER 702. The fact that the agent used propriety software to map out cell tower strengths did not cause her testimony to fall outside of Frye. The agent’s testimony was helpful to the jury as she made the jury aware of the imprecision of cell site information. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018, partial publication ordered Oct. 23, 2018).

Ineffective Assistance of Counsel. Defense counsel’s failure to ask the trial court to instruct the jury to review the self-defense instruction when the deliberating jury sent two questions to the judge which showed that the jury did not understand the law of self-defense, was prejudicially deficient performance that requires a reversal of the defendant’s first degree assault with a deadly weapon conviction. State v. Backemeyer, COA No. 35218-8-III (Oct. 23, 2018). Judge Korsmo dissented.

American Bar Association

Lawyers’ Obligations After and Electronic Data Breach or Cyberattack. “Model Rule 1.4 requires lawyers to keep clients “reasonably informed” about the status of a matter and to explain matters “to the extent reasonably necessary to permit a client to make an informed decision regarding the representation.” Model Rules 1.1, 1.6, 5.1 and 5.3, as amended in 2012, address the risks that accompany the benefits of the use of technology by lawyers. When a data breach occurs involving, or having a substantial likelihood of involving, material client information, lawyers have a duty to notify clients of the breach and to take other reasonable steps consistent with their obligations under these Model Rules.” Formal Opinion 483 (Oct. 17, 2018).

WEEKLY ROUNDUP FOR OCTOBER 19, 2018

Washington Supreme Court

Cruel Punishment. Adopting a new “categorical bar analysis” for sentencing challenges, the Court holds that sentencing an individual to life without parole or early release for aggravated first degree murders committed prior to their eighteenth birthday is unconstitutional under article I, section 14 of the Washington Constitution. State v. Bassett, No. 94556-0 (Oct. 18, 2018). Justice Stephens authored the dissenting opinion which was joined by Justices Johnson, Madsen and Chief Justice Fairhurst.

Division Three

Unlawful Redemption of Food Stamp Benefits. RCW 9.91.144, which makes it a class C felony to redeem food stamps in violation of 7 U.S.C. sec. 2024(c) or RCW 74.04.500, applies only to merchants and others who seek reimbursement by the government for food stamp benefits previously used by a consumer. A person who improperly uses another person’s benefits to purchase food at a grocery store does not fall within the statute’s ambit. State v. Gray, COA No. 35357-5-III (Oct. 16, 2018).

WEEKLY ROUNDUP FOR OCTOBER 12, 2018

Washington Supreme Court

Death Penalty. Washington’s death penalty is invalid because it is imposed in an arbitrary and racially biased manner. Because the use of the death penalty is unequally applied—sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant, the death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution. In reaching this conclusion, the Court did “not decide whether the prior cases [upholding the constitutionality of the death penalty] were incorrect and harmful at the time they were decided” because the scope of article I, section 14 “is not static.” The Court’s conclusion “that race has a meaningful impact on imposition of the death penalty” was made “by way of legal analysis, not pure science.” The Court leaves open the possibility that the legislature may enact a carefully drafted statute that will pass constitutional muster, stating that “[T]o hold that the death penalty is per se unconstitutional would be to substitute our moral judgment for that of the people of Washington.” State v. Gregory, No. 88086-7 (Oct. 11, 2018). Justices Johnson, Owens, Stephens and Madsen concurred, asserting that additional state constitutional principles compel the majority’s decision.

Law of the Case Doctrine. The law of the case doctrine prohibits reconsideration of alleged guilt phase errors where the remand following the first appeal was solely for the purpose of conducting a new penalty phase hearing. State v. Gregory, No. 88086-7 (Oct. 11, 2018).

LUPA and Building Permit Processing Fees. The imposition of a permit application fee falls under the statutory definition of a land use decision under chapter 36.70C RCW. Hence, LUPA applies when parties are challenging, as excessive, permit application fees assessed when a building or a land use permit application is submitted for processing. Community Treasures v. San Juan County, No. 94463-6 (Oct. 11, 2018).

Division One

DOSA. The provisions of RCW 9.94A.664(4), which allows imposition of total confinement equal to one-half the midpoint of the standard range of the underlying sentence as a sanction when the recipient of a residential drug offender sentencing alternative fails to comply with the terms of her judgment and sentence, does not apply to an offender who fails to report to residential treatment. A court may impose a term of incarceration anywhere within the standard range upon an offender who fails to report to residential treatment. State v. Church, COA No. 76573-6-I (Oct. 8, 2018).

Improper Court Filings. CR 11 sanctions were properly levied upon a lawyer who filed documents with the court to help facilitate the media’s access to them.

The court file is not a bulletin board for attorneys to post information for the press. Neither is it an archive for communications between lawyers. It exists so attorneys may provide the court with documents relevant to the proceedings pending before it so that the court can consider this information when resolving a request for relief. Attorneys may communicate with the press through a number of avenues. But the court file does not exist for the purpose of facilitating this communication.

Heckard v. Murray, COA No. 77019-5-I (Oct. 8, 2018).

Indeterminate Sentence Review Board. Under the plain language of RCW 9.95.115, the IRSB is not prohibited from releasing a person on parole unless the person is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. A prefiling forensic psychological evaluation does not mean a person is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. In re the Personal Restraint of Parejo, COA No. 76256-7-I (Oct. 8, 2018).

Division Two

Sexually Violent Predators. The trial court’s instructions on “adequately protect the community” which stated that “to establish that the respondent’s less restrictive alternative placement should not be granted, the State must prove one of the following beyond a reasonable doubt:. . .(2) That the proposed less restrictive alternative placement plan does not include conditions that will adequately protect the community” and that the community protection factor did not require “that all risk be removed,” were sufficient. In re Detention of Urlacher, COA No. 49781-6-II (July 3, 2018, publication ordered Oct. 9, 2018).

Ninth Circuit

Tribal Forfeiture of Non-Member’s Vehicle. Tribal jurisdiction is colorable, requiring the exhaustion of tribal remedies, where the non-member, immediately after leaving the casino was found with several containers of marijuana in his truck. Although the vehicle was stopped on a Washington state road, one can logically conclude that the forfeiture was a response to his unlawful possession of marijuana while on tribal land. Wilson v. Horton’s Towing, No. 16-35320 (9th Cir. Oct. 9, 2018). [Editor’s Note: Footnote 6 of the opinion questions tribal authority to issue a non-criminal/civil traffic infraction to nonmembers or events occurring on state roads located within reservation lands.]

WEEKLY ROUNDUP FOR SEPTEMBER 28, 2018 & OCTOBER 5, 2018

Washington Supreme Court

“Notice of Protest” Provisions. A contractor’s suit against the city for breach of implied covenant of good faith and fair dealing was barred by the contractor’s failure to file a written notice protecting the written orders on which the claim of breach was based. Mike M. Johnson, which held that such written notice is mandatory and that actual notice does not apply, applies to claims for expectancy and consequential damages. Nova Contracting, Inc. v. City of Olympia, No. 94711-2 (Sep. 27, 2018).

Dependencies. The Washington constitution does not require that all children be appointed counsel at all stages of the dependency proceedings. Confidential juvenile court records remain sealed and confidential on appeal. In re the Dependency of E.H., No. 94798-8 (Oct. 4, 2018). Lead opinion signed by Justices Owens, Fairhurst, Wiggins and Johnson. Justices Stephens and Gordon McCloud dissented as to the decision to seal the record. Justices Yu and González dissented on the counsel issue.

On October 2, 2018, the Court accepted review of the following cases:

DOSA. State v. Yancey, No. 95992-7. Government’s Petition, Franklin County, Teresa Chen. Questions presented: Who is eligible for a DOSA? May a sentencing enhancement be ignored in order to render someone eligible for a DOSA? COA opinion reported at 3 Wn. App. 2d 735 (2018). Appellate court pleadings available here.

Remedy for Illegal Search. State v. McKee, No. 96035-6. Government’s Petition, Skagit County, Erik Pedersen. Question presented: Whether dismissal of charges based upon an illegal search warrant is impermissible when there has been no finding that insufficient admissible evidence remains following suppression. COA opinion reported at 3 Wn. App. 2d 11 (2018). Appellate court pleadings available here.

Miller. State v. Gilbert, No. 95814-9. Klickitat County– David Quesnel. Questions presented: Whether imposition of consecutive sentences for multiple murder counts violate Miller and its progeny. Whether RCW 9.94A.730(1), which allows for early release of defendants who were sentenced for crimes committed prior to their eighteenth birthday violates a defendant’s due process and Eighth Amendment rights. Whether a sentencing court may consider RCW 9.94A.730(1) when imposing sentence. COA opinion is unpublished. Appellate court pleadings available here.

Division One

Sexually Violent Predator. In an unconditional release trial, a detainee’s antisocial personality disorder and alcohol abuse disorder are relevant risk factors that a jury may consider in determining whether it is likely the detainee will commit predatory acts of sexual violence unless confined to a secure facility. In re Detention of Harell, COA No. 76137-4-I (Aug. 6, 2018, publication ordered Sep. 18, 2018).

Division Two

Bail. While the trial court did not abuse its discretion by concluding that there was a substantial danger that the defendant would commit a violent crime if released on his own recognizance, the court erred by requiring $1,000 bail without making any findings that less restrictive conditions would assure the safety of the community. CrR 3.2(d)(6) requires the court to make oral or written findings that the imposition of other conditions, without bail, would be insufficient to reasonably assure the safety of the community. State v. Huckins, COA No. 50091-4-II (Sep. 25, 2018). [Editor’s Note: Because the court reversed based upon the court rule, it did not reach the defendant’s claim that it violates the constitution for a court to order bail he could not afford. The Washington Supreme Court rejected an article I, section 14 challenge to bail on this ground in 1910. See Ex Parte Rainey, 59 Wash. 529, 110 P. 7 (1910) (bail of $5000 imposed upon a laboring man accused of a common felony is not so unreasonable or excessive in amount as to require reduction). The $5000 bail set in Rainey, adjusted for inflation, would be more than $123,000. See Inflation Calculator available at http://www.usinflationcalculator.com/. ]

Jury Misconduct. The trial court did not abuse its discretion in denying a motion for new trial based upon a juror’s mid-deliberation research on the definition of “premeditation,” where the juror did not share the fruits of her research with the other members of the jury and the definitions the juror located where consistent with the law and the court’s own instruction. State v. Arndt, COA No. 50118-0-II (Sep. 25, 2018). Judge Maxa dissented.

Competency to Stand Trial. A trial court may not proceed with a trial when it becomes apparent that the defendant’s mental state has deteriorated to the point where the defendant is no longer competent. If a question arises regarding a defendant’s continued competency, the trial court must suspend the trial and order a competency evaluation. State v. Fedoruk, COA No. 49975-4-II (Jun. 26, 2018, publication ordered Sep. 25, 2018).

Division Three

Jurisdiction Over DUIs. A city’s adoption of RCW 46.61.502 does not deprive the county district court of jurisdiction over DUIs committed within the city. State v. Taylor, COA No. 35461-0-III (Oct. 2, 2018).

Capacity. RCW 9A.04.050, the capacity statute, does not deprive a court of jurisdictional authority to act. A 2017 CrR 7.8 motion to vacate a 1996 conviction for child molestation on the grounds that the court lacked jurisdiction because it did not first determine that the defendant had the capacity to commit the crime when he was 10-years-old was properly denied. State v. Kassner, COA No. 35628-1-III (Oct. 2, 2018).

Manifest Injustice Disposition. The trial court properly imposed a manifest injustice disposition of 27-36 weeks for theft in the third degree solely for the reason that it would benefit the juvenile to receive the services she needed. It was not error for the judge to consider the juvenile’s behavior during the dependency. State v. F.T., COA No. 35524-1-III (Sep. 25, 2018).

Public Records Act. RCW 70.48.100 shields disclosure of phone conversation recording of jail inmates and records relating to the recordings from Public Records Act requests. The exemption extends to jail records that have been forwarded to other government agencies, including the prosecuting attorney’s office. Zabala v. Okanogan County, COA No. 34961-6-III (Oct. 2, 2018) (replacing the April 3, 2018, opinion in this case).

Legal Update for Washington State Law Enforcement

The September 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

First Amendment and Bus Advertisements. The county’s bus advertising program is a nonpublic forum. A county may reject factually inaccurate ads because the First Amendment does not require it to display patently false content in a nonpublic forum. The county’s disparagement standard for rejecting ads impermissibly discriminates, on its face, on the basis of viewpoint. The county’s disruption standard is facially valid but was unreasonably applied in this case. American Freedom Defense Initiative v. King County, No. 17-35897 (9th Cir. Sep. 27, 2018).

United States District Court, Western District of Washington

Taxes in Indian Country. Both the State of Washington and Snohomish County may collect retail sales and use tax, business and occupation tax, and personal property tax from non-Indian owned businesses located at Quil Ceda Villate, a municipality located on Tulalip tribal land. The collection of such taxes does not impose on Tulalip’s tribal sovereignty and is not preempted by operation of federal law. Tulalip Tribes v. State of Washington, No. 15-CV-940 BJR (Oct. 4, 2018).

American Bar Association

Ethical Obligations Related to Disasters. “Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.” ABA Formal Opinion No. 482 (Sep. 19, 2018). [Editor’s note: The Vermont Bar Association offers a number of resources for disaster planning. I did not find comparable materials on the WSBA website.]

WEEKLY ROUNDUP FOR SEPTEMBER 21, 2018

Washington Supreme Court

Legal Financial Obligations. The court’s inquiry into ability to pay must include consideration of the mandatory factors set forth in Blazina, including the defendant’s incarceration and other debts, and the court rule GR 34 criteria for indigency. The trial court should also address what we described in Blazina as other “important factors” relating to the defendant’s financial circumstances, including employment history, income, assets and other financial resources, monthly living expenses, and other debts.

On review, the court applies the abuse of discretion standard to whether discretionary LFOs were validly imposed and conducts a de novo review as to whether the trial court made an adequate inquiry under Blazina.

House Bill 1783 (Laws of 2018, ch. 269), which amended two LFO statutes to prohibit trial courts from imposing discretionary LROs on defendant who are indigent at the time of sentencing, applies to cases on appeal on the effective date of the amendments.

State v. Ramirez, No. 95249-3 (Sep. 20, 2018).

Felony Violation of Protection Order. While assault is an essential element to RCW 26.50.110(4), a defense of property jury instruction is not available when there is a valid court order prohibiting the defendant from contacting the protected party. State v. Yelovich, No. 95192-6 (Sep. 20, 2018). Justices Wiggins, Gordon McCloud and Owens concurred in the result on the grounds that RCW 9A.16.020(3) does not justify the use of force to recover stolen property.

Division One

Assault in the Second Degree. Assault in the second degree is an alternative means crime. A jury is not required to unanimously agree as to which alternative means has been proved beyond a reasonable doubt, so long as sufficient evidence supports each of the charged alternative means to commit assault in the second degree. State v. Garcia Gomez, COA No. 75673-7-I (Sep. 17, 2018).

Division Two

Erotic Dance Studios. A local ordinance which allows the County to suspend or revoke the licenses issued to erotic dance studio operators, managers, and dancers if they violate or permit the violation of erotic dance studio regulations is not unconstitutional under article I, section 5 of the Washington Constitution because it does not allow the imposition of sanctions based on strict liability. The ordinance is not unconstitutional under a First Amendment analysis for time, place or manner restrictions. The ordinance does not violate due process because it does not allow the imposition of sanctions based on strict liability. Forbes v. Pierce County, COA No. 51548-2-II (Sep. 18, 2018).

WEEKLY ROUNDUP FOR SEPTEMBER 14, 2018

Washington Supreme Court

Dismissal of an Impaneled Juror. Dismissal of an impaneled juror for bias requires the same findings as dismissal of a potential juror for bias– proof that the juror has formed a biased opinion and, as a result, cannot try the case impartially. When an impaneled juror is erroneously excused midtrial, the defendant will be entitled to a new trial if there is any possibility that the erroneous dismissal stemmed from the juror’s views on the merits of the case. In this case, the trial judge erroneously dismissed an impaneled juror after multiple days of trial testimony because she had a minor connection to an important defense witness that did not give rise to any evidence that the juror was biased . Because there is a reasonable possibility that juror 12 was dismissed beacuse of her views of the merits of the case, the defendant is entitled to a new trial. State v. Van Elsloo, No. 94325-7 (Sep. 13, 2018). Lead opinion authored by Justice Wiggins and signed by no other justices. Justice Gordon McCloud authored a concurring opinion to address “the assumption that one tribal member is incapable of fairly evaluating the testimony of a witness associated with the same tribe.” Justices González, Yu, and Fairhurst signed the concurring opinion. Justice Stephens authored a dissenting opinion in which she argues that a new trial is not warranted. Justices Johnson, Owens and Madsen joined the dissent.

Firearm Enhancement. Sufficient evidence supported a firearm enhancement as there was a nexus between the defendant, the weapon and the crime. The defendant’s argument that the shotgun was too far away from him to qualify as easily accessible and readily available because he would have had to exit the car or move to the back seat to reach the shotgun is rejected. State v. Van Elsloo, No. 94325-7 (Sep. 13, 2018). The Court’s decision on this point was unanimous.

Community Custody and Sex Offenses. The sentencing condition prohibiting the defendant, who was convicted of first degree child molestation, first degree child rape, second degree child molestation, and second degree child rape, from possessing or viewing “sexually explicit material” was crime related and not unconstitutionally vague. The exact language of the community custody condition was

Do not possess, use, access or view any sexually explicit material as defined by RCW 9.68.130 or erotic materials as defined by RCW 9.68.050 or any material depicting any person engaged in sexually explicit conduct as defined by RCW 9.68A.011(4) unless given prior approval by your sexual deviancy provider.

The sentencing conditions requiring the defendant, who was convicted of three counts of second degree child molestation, to disclose to her community corrections officer any “dating relationship” is not unconstitutionally vague. The condition prohibiting this case defendant from entering any “sex-related business” is crime related. State v. Nguyen, No. 94883-6 (Sep. 13, 2018). 

Relocating Cremains. A cemetery violated RCW 68.50.140(4), a class C felony, by relocating cremains without giving prior notification of its actions to next of kin. A “place of interment” for RCW 68.50.140(4) means the particular place remains are buried, such as a plot, and not a cemetary in general. Southwick, Inc. v. State, No. 95237-0 (Sep. 13, 2018). Dissenters were Justices Gordon McCloud, Fairhurst and González.

Wrongful Discharge. The four-part Perritt analysis does not apply to a wrongful discharge suit based upon whistle-blowing. The four-part Perritt analysis does provide helpful guidance in resolving a claim of wrongful discharge based upon whistle blowing.

In a wrongful discharge suit based on whistle-blowing, the plaintiff must show that (1) his discharge may have been motivated by reasons that contravene a clear mandate of public policy and (2) the public-policy-linked conduct was a significant factor in the decision to discharge him. The clear mandate of public policy is a question of law that is not met in the instant case as the plaintiff cannot produce a court decision, statute, or regulation that requires wall padding in the basketball courts.

If the plaintiff succeeds in presenting a prima facie case, the burden shifts to the employer to articulate a legitimate nonpretextual nonretaliatory reason for discharge. An employer is not required to concede the existence of the first three elements of the Perritt test before asserting an overriding justification for the termination. The after-acquired-evidence doctrine does not apply to the overriding justification element of the Perritt test.

If the employer articulates such a reason, the burden shifts back to the plaintiff either to show that the reason is pretextual, or by showing that although the employer’s stated reason is legitimate, the public-policy-linked conduct was nevertheless a substantial factor motivating the employer to discharge the worker. Martin v. Gonzaga University, No. 95269-8 (Sep. 13, 2018).

Personnel Files. An employee’s claim that his employer violated RCW 49.12.250 by failing to provide him with a complete copy of his personnel file is not justiciable. An employee must first pursue an administrative request through the Department of Labor and Industries before turning to the courts. Martin v. Gonzaga University, No. 95269-8 (Sep. 13, 2018).

The Washington Supreme Court has accepted review of the following cases:

Clerk’s Bond. Riddle v. Elofson, No. 95959-5. Yakima County. Issue – Whether the Yakima County Clerk is entitled to a writ of prohibition barring the Yakima County Superior Court judges from requiring her to post a $200,000 supplemental bond pursuant to RCW 36.23.020. This is an original action filed against a state officer.

Special Deputy Prosecuting Attorneys. In re the Appointment of a Special Deputy Prosecuting Attorney, No. 95945-5. Franklin County. Whether Benton-Franklin County Superior Court judges had authority to appoint a special deputy prosecuting attorney to represent them in their mandamus action seeking to compel the Franklin County clerk to provide paper copies of court records as required by Franklin County Local General Rule 3.

Legal Update for Washington State Law Enforcement

The August 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

Ninth Circuit

Cyberstalking. Younger abstention doctrine does not bar a federal court from reaching the merits in an action seeking to enjoin enforcement of Washington’s cyberstalking law and to declare the law to be unconstitutional. Rynearson v. Ferguson, No. 17-35853 (9th Cir. Sep. 6, 2018).

WEEKLY ROUNDUP FOR SEPTEMBER 7, 2018

Washington Supreme Court

Forfeiture. A corporate shareholder who did not file any claim in the forfeiture case is not a claimant and therefore cannot recover attorney fees pursuant to RCW 69.50.505(6). A substantially prevailing claimant’s fee award is not strictly limited to fees incurred in the forfeiture proceeding itself. RCW 69.50.505(6) gives courts discretion to award the claimant attorney fees from a related criminal case if the fees were reasonably incurred for the primary purpose of resisting civil forfeiture. OPNET v. Real Property, No. 95013-0 (Sep. 6, 2018). Justice González dissented on the grounds that “The civil forfeiture statute does not authorize attorney fees incurred in a criminal case to be awarded in a forfeiture proceeding.” Justices Fairhurst and Johnson joined the dissent.

The Washington Supreme Court accepted review of the following cases this week:

Community Caretaking. State v. Boisselle, No. 95858-1. Pierce County. “Petition for review granted as to the issue of community caretaking exception only.” Issues: Whether the warrantless entry into the defendant’s home was justified under the emergency exception to the warrant requirement and whether the community caretaking exception requires the State to prove that the warrantless entry was totally divorced from a criminal investigation. COA opinion is reported at 3 Wn. App. 2d 266 (2018). Petition for review available here.

Harmless Error Standard. State v. Romero-Ochoa, No. 95905-6. Pierce County– State’s Petition. Issue: “Does the decision below conflict with decisions of the United States Supreme court, this court, and the courts of appeals concerning the harmless error standard applied to an evidentiary U-visa ruling, where the decision adds a requirement of eyewitness corroboration to the untainted evidence test, and where but for that requirement the error was shown to be harmless beyond a reasonable doubt?” COA opinion is unpublished. Petition for review is available here.

Work Product Protection. Barriga Figueroa v. Prieto Mariscal, No. 95827-1. “Petition for review granted; review of Diaz’s contingent issues denied” Issues: Whether an application for benefits qualified as work product even though it was not prepared in anticipation of litigation, and it contained no confidential information and was admittedly prepared in the normal course of business. Whether the admission of the application was harmless because the same evidence was admitted from other sources and plaintiff below did in fact present refuting evidence. COA opinion is reported at 3 Wn. App. 2d 139 (2018). Petition for review is available here.

Insurance Law. Keodalah v. Allstate Ins. Co., No. 95867-0. Issue: “Does an employee claims adjuster, despite lacking any legal relationship with an insured, owe an actionable, independent duty of good faith to the insured?” COA opinion is reported at 3 Wn. App. 2d 31 (2018). Petition for review pleadings are available here.

Division One

Terry Stops. An officer may check for outstanding warrants during a valid criminal investigatory stop, as long as the procedure does not unreasonably extend the initial valid stop. The officer did not exceed the scope of a valid Terry stop involving a report of a recent assault in order to investigate whether the woman with the suspect was the protected person. State v. Alexander, COA No. 76506-0-I (Sep. 4, 2018).

Manslaughter. A requested lesser degree jury instruction for manslaughter in the second degree was properly rejected when the evidence did not support a finding that the defendant only negligently caused the death of another. While the defendant was entitled to an instruction on manslaughter in the first degree, where the defendant claimed that he reasonably believed he was in imminent danger and needed to act in self-defense but used more force than necessary. No evidence support a finding that the defendant was unaware of the risk of death when he intentionally shot the victim 8 to 10 times at close range. State v. Fluker, COA No. 75060-7-I (Sep. 4, 2018).

Carry Permit. Evidence that the defendant had a permit to carry a firearm is irrelevant to whether the defendant intentionally murdered the victim. State v. Fluker, COA No. 75060-7-I (Sep. 4, 2018).

Division Two

Permit Applications. The City was not liable for damages under RCW 64.40.020(1) in a case in which the LUPA appeal resulted in a determination that the right-of-way dedication failed to satisfy the Nollan/Dolan nexus and proportionality requirements. The City’s decision to impose a right-of-way dedication was not arbitrary and capricious, ultra vires, or unlawful, as the City conducted a Nollan/Dolan analysis prior to imposing the condition, which was authorized by the City code. The LUPA decision alone, does not establish liability for monetary damages or compensation. Church of the Divine Earth v. City of Tacoma, COA No. 49854-5-II (Sep. 5, 2018).

Equitable Estoppel and Permitting. As a matter of law, equitable estoppel may not be alleged offensively as a cause of action by plaintiffs. In a county permitting case, equitable estoppel is a defense rather than a cause of action. Byrd v. Pierce County, COA No. 50513-4-II (Sep. 5, 2018).

Quiet Title and Permitting. Relief available in a quiet title action does not include an injunction prohibiting the County from enforcing an access restriction covenant on title. To the extent an action to quiet title depends upon equitable estoppel, the complaint fails to state a claim upon which relief may be granted. Byrd v. Pierce County, COA No. 50513-4-II (Sep. 5, 2018).

Division Three

Washington Attorney General

Voter Registration. A city, county, or school district lacks the authority to allow individuals who have reached the age of 17, but not yet reached the age of 18, to vote in elections for that jurisdiction. The legislature may not allow by statute individuals who have reached the age of 17, but not yet reached the age of 18, to vote in local elections nor allow a city, county, or school district to do so by local option. AGO 2018 No. 6 (Sep. 5, 2018).

Ninth Circuit

Confrontation Clause. The Sixth Amendment Confrontation Clause protections established in Bruton v. United States, 391 U.S. 123 (1968), concerning the introduction of statements by non-testifying codefendants, do not apply to statements that are nontestimonial. A tiny handwritten gang memo that detailed the attack was non-testimonial, as it was designed not to fall into the hands of government officials. Lucero v. Holland, No. 15-16111 (9th Cir. Aug. 31, 2018).

Judicial Notice. A defendant’s request that the court take judicial notice of “unproductive” stops made at the border patrol station, which the defendant contended showed that the agents were not properly applying the reasonable suspicion standard, was proerly rejected on the grounds that it is neither “generally known within the trial court’s territorial jurisdiction” nor “can [it] be accurately and readily determined from sources whose accuracy cannot be reasonably questioned” as required under Federal Rule of Evidence 201(b). United States v. Raygoza-Garcia, No. 16-50490 (9th Cir. Aug. 31, 2018).

Eighth Amendment and the Homeless. The Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter. Martin v. City of Boise, No. 15-35845 (9th Cir. Sep. 4, 2018).

Actual Bias. It was error to seat a juror, whose social security number had previously been stolen, in an aggravated identity theft and possession of unauthorized access devices case, where the victim was unable to explicitly state that she could put her personal biases aside. United States v. Kecheczian, No. 16-50326 (9th Cir. Sep. 4, 2018).

Indiana Supreme Court

RPC 3.8. Deputy prosecuting attorney suspended from the practice of law for 18 months for violating RPC 3.8(a), 3.8(d), and 8.4(d), by failing to notify the defense prior to trial that a child victim recanted the facts underlying one count and by proceeding to trial on that count, despite believing the child victim’s recantation to be truthful. In re the Hudson, No. 64S00-1705-DI-325 (Aug. 29, 2018).

Texas Center for Legal Ethics

On Line Discussion Groups. A lawyer may reveal a limited amount of unprivileged confidential information to lawyers outside the inquiring lawyer’s law firm, without the client’s express consent, when the inquiring lawyer reasonably believes that the revelation will further the representation by obtaining the responding lawyers’ experience or expertise for the benefit of the client, and when it is not reasonably foreseeable that revelation will prejudice the client. A responding lawyer does not enter into an attorney-client relationship with the inquiring lawyer’s client merely by virtue of an informal consultation. Responding lawyers should take reasonable steps to insure that consultation with an inquiring lawyer on a given subject will not adversely affect a present or former client in the subject of the present or former representation. Professional Ethics Committee for the State Bar of Texas Opinion No. 673 (Aug. 2018).

New York City Bar Association Committee on Professional Ethics

Joint Clients. When a joint representation does not involve a conflict of interest between the joint clients that would require the lawyer to obtain the clients’ “informed consent” to the joint representation, the lawyer must nevertheless explain the implications of the joint representation to the extent “reasonably necessary to permit the client[s] to make informed decisions regarding the representation.” This may require the lawyer to explain, for example, that information disclosed to the lawyer by one joint client cannot be withheld from the other joint client(s) if it is material to the representation, and that in the event of a dispute between the joint clients, information that would otherwise be protected by the attorney-client privilege as against third parties will not be protected as between the joint clients. The lawyer should ordinarily provide all such required explanations before commencing the joint representation. Formal Opinion 2017-7: Disclosures to Joint Clients When the Representation Does Not Involve a Conflict of Interest.

WEEKLY ROUNDUP FOR AUGUST 31, 2018

Washington Supreme Court

Use of Deadly Force Initiative. I-940 must appear on the November ballot. ESHB 3003, which purported to conditionally and prospectively amend I-940 before I-940 was enacted violates article II, section 1(a) of the state constitution, which prohibits the legislature from amending an initiative during the same session in which it was enacted. Eyman v. Wyman, No. 95749-5 (Aug. 28, 2018) (plurality opinion with lengthy discussions on the separation of powers doctrine).

Division One

Felony Murder Predicated Upon Robbery. There was sufficient evidence to support a reasonable inference that the defendant killed the victim with the intent to take her property where the defendant (1) used a phone application to make calls via the Internet rather than a regular cellular service, (2) created the account he used to communicate with the victim on the day of the murder, (3) contacted numerous medium-priced prostitutes who often carry large sums of money and who are less likely to report a robbery, (4) was in financial despair and looking to “make fast money,” (5) used force to take the property, (6) was seen on video leaving the victim’s ransacked apartment with a full bag, and (7) tried to sell a designer bag which was taken from the victim’s apartment the day after the murder. State v. Wang, COA No. 76369-5-I (Aug. 27, 2018).

WPIC 37.50. The final optional sentence of WPIC 37.50, which states that “The taking constitutes robbery, even if death precedes the taking, whenever the taking and a homicide are part of the same transaction,” is potentially misleading and is not supported by State v. Craig, 82 Wn.2d 777 (1973). The inclusion of this language will not, however, require reversal in all cases. State v. Wang, COA No. 76369-5-I (Aug. 27, 2018).

Washington Privacy Act. A defendant’s calls and text messages to the phone number listed in a Backpage.com advertisement were not private communications protected by the Washington Privacy Act. In re Personal Restraint of Hopper, COA No. 76509-4-I (Jul. 2, 2018, publication ordered Aug. 22, 2018).

Division Two

Domestic Violence/Ongoing Pattern of Psychological Abuse Aggravator. RCW 9.94A.535(3)(h)(i), which allows for an exceptional sentence based upon a finding that the defendant committed a domestic violence offense that was part of an ongoing pattern of psychological abuse of a victim manifested by multiple incidents over a prolonged period of time, is not unconstitutionally overbroad. This sentencing aggravator is not subject to a vagueness challenge. The trial court did not err in finding that the ongoing pattern or psychological abuse occurred over a prolonged period of time based on the defendant’s abuse of the victim over nearly seven weeks. The exceptional sentence of 1,060 months for first degree murder conviction was not clearly excessive. State v. Brush, COA No. 49760-3-II (Aug. 28, 2018).
Division Three

Felony DUI. Whether a prior conviction for vehicular assault will support a felony DUI conviction is a question of law to be decided by the court, upon a review of the court records relating to the prior conviction and assessing which of the alternative means to vehicular assault formed the basis of the conviction. The relevant documents are the charging document, a guilty plea statement, jury verdicts and judgment of conviction. Where a defendant is charged with all three alternative means of committing vehicular assault, his guilty plea includes the means necessary for a later felony DUI conviction. State v. Allen, COA No. 35214-5-III (Aug. 28, 2018).

Eyewitness Identification. A defendant’s failure to argue at trial that a witnesses’ identification testimony is unreliable limits appellate review to whether the introduction of the witnesses’ identification testimony amounted to a manifest constitutional error. RAP 2.5(a)(3). Factual questions regarding what policies governed the pretrial identification procedures, what steps may have been taken to protect against suggestiveness or misidentification, why a double-blind procedure was not used, and other issues prevents the defendant from establishing manifest constitutional error. In the absence of a viable constitutional challenge to unreliable eyewitness testimony, a criminal defendant may assert an objection under ER 602. Such a challenge, however, must first be asserted in the trial court. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018).

FBI Historical Cell Site Analysis. Cell site location testimony is widely accepted throughout the country, thus it is not subject to a Frye hearing. The use of proprietary software to map out cell tower strengths does not cause an FBI agent’s testimony to fall outside of Frye. It is not error under ER 702, to allow an FBI agent with sufficient training and experience to testify regarding historical cell site analysis. State v. Ramirez, COA No. 34872-5-III (Aug. 30, 2018).

Jury Unanimity. A defendant may assert a claim that the charged crime is an alternative means offense and that the jury instructions left open the possibility of an improper nonunanimous jury verdict for the first time on appeal. State v. Barboza-Cortes, COA No. 34356-1-III (Aug. 30, 2018). Judge dissented on this point.

Unlawful Possession of a Firearm. Although the firearm statute prohibits owning, possessing or controlling a firearm, these three descriptors are not alternate ways of violating the same statute. They are instead manners of proving the singular criminal act of unlawful possession. State v. Barboza-Cortes, COA No. 34356-1-III (Aug. 30, 2018). Judge Fearing dissented on this point.

Identity Theft. Washington’s identity theft statute prohibits contains two alternative means of committing the crime: (1) illegal activity involving “means of identification;” or (2) illegal activity involving “financial information.” Absent sufficient evidence in support of each alternative means, the jury must make an express unanimous finding as to which alternative means formed the basis of the conviction. State v. Barboza-Cortes, COA No. 34356-1-III (Aug. 30, 2018). Judge Korsmo dissented on this point.

Washington Attorney General

Foreign Protection Orders. Federal law requires that any protection order issued by the court of a state or Indian tribe be accorded full faith and credit and enforced by the court of another state or Indian tribe. Registration of the order in a state court is not a prerequisite to enforcement. AGO 2018 No. 5 (Aug. 28, 2018).

WEEKLY ROUNDUP FOR AUGUST 24, 2018

Washington Supreme Court

Washington Minimum Wage Act. Plaintiffs can recover both prejudgment interest under RCW 19.52.010 and double exemplary damages under RCW 49.52.070 for the same wage violation. Hill v. Garda CL Northwest, Inc., No. 94593-4 (Aug. 23, 2018). Justice Johnson authored a dissent which claims that the employer did not willfully withhold wages. Justices Owens and Fairhurst also signed the dissent.

Division One

GR 33. GR 33, which governs requests for accommodation by persons with disabilities, requires proof of disability as a prerequisite to accommodations at trial. A trial court’s decision as to the presence or absence of a disability will be reviewed under the substantial evidence test. GR 33 does not require that a request for accommodation be handled wholly ex parte. A court properly requires notice to all parties when a request for accommodation includes a motion for a continuance of the trial date. A court’s ruling regarding accommodation should be on the record and reduced to writing. When a request is denied, the trial court must “ensure that the person requesting the accommodation is informed of his or her right to file an ADA complaint with the United States Department of Justice Civil Rights Division.” GR 33(e). A party is entitled to challenge the application of GR 33 in an appeal of the same proceeding in which the GR 33 accommodation were sought. The party is not required to bring his/her GR 33 claim against the county, as the question in the appeal is whether the party was denied a fair trial, not whether the county should be sanctioned for failure to accommodate the party. In re the Marriage of McCann, COA No. 76113-7-I (Aug. 20, 2018).

Division Two

Electronic Service. When parties to an action mutually agree to accept service by e-mail, service through a court maintained system that automatically generates an e-mail which states that “The following documents are being electronically served upon you,” is sufficient. A party need not also serve the document by direct e-mail to opposing counsel. Tacoma Pierce County Small Business Incubator v. Jaguar Security, Inc., COA No. 50439-1-II (Aug. 21, 2018).

Division Three

Child Pornography. The information provided by Microsoft to police in compliance with 18 U.S.C. § 2258A, along with commonsense inferences about where and how long child pornography is likely to be retained, provided probable cause to issue the warrant. Overbreadth issues are properly avoided by the severability doctrine. State v. Friedrich, COA No. 35099-1-III (Aug. 23, 2018).

Defendant’s Post-Conviction Access to Discovery. Defendant’s post-sentencing motion to compel production of his client file and discovery materials is governed by CrR 4.7(h)(3) and RPC 1.6(d). These rules require some sort of disclosure when a criminal defendant requests copies of his or her file, without any showing of need. Disclosure is subject to redactions under CrR 4.7(h)(3). State v. Padgett, COA No. 35034-7-III (Jul. 17, 2018, publication ordered Aug. 23, 2018). [Editor’s Note: This case relates solely to the client record that is in the hands of the defendant’s attorney. There is no requirement that the prosecution reissue discovery to a defendant post-conviction.]

Ninth Circuit

No Contact Orders and Expectation of Privacy. A person who is prohibited from entering a residence by a court’s no-contact order lacks a legitimate expectation of privacy in that residence and may not challenge its search on Fourth Amendment grounds. United States v. Schram, No. 17-30055 (9th Cir. Aug. 21, 2018). [Editor’s note: This opinion is consistent with Washington law. See State v. Jacobs, 101 Wn. App. 80, 2 P.3d 974 (2000) (an individual who has been excluded from a particular building by a judicial domestic violence order will lack a reasonable expectation of privacy in the building).].

Indecent Exposure and Immigration Consequences. Convictions for indecent exposure pursuant to RCW 9A.88.010(1) or RCW 9A.88.010(2)(b) are not categorically crimes involving moral turpitude for immigration purposes. Both statutes are indivisible such that the modified categorical approach is inapplicable. Barrera-Lima v. Sessions, No. 13-73022 (9th Cir. Aug. 24, 2018).

WEEKLY ROUNDUP FOR AUGUST 17, 2018

Washington Supreme Court

Waiver of Counsel. Defendant’s request to represent himself, which was made out of a desire to avoid a trial delay, was unequivocal. An unequivocal request to proceed pro se requires a defendant to make an explicit choice between exercising the right to counsel and the right to self-representation so that a court may be reasonably certain that the defendant wishes to represent himself. The motivation or purpose behind the request for self-representation is not a factor in determining whether the request was unequivocal. State v. Curry, No. 94681-7 (Aug. 16, 2018). Justice Gordon McCloud authored a concurring opinion.

Auto-Adult. RCW 13.04.030(1), which automatically subjects some individuals who commit crimes prior to their eighteenth birthday to adult court jurisdiction, does not violate the individuals’ substantive or procedural due process rights. There is no constitutional right to be tried in juvenile court. Automatic adult jurisdiction does not implicate the Eighth Amendment’s prohibition on cruel and unusual punishment. State v. Watkins, No. 94973-5 (Aug. 16, 2018). Justice Yu authored the dissenting opinion which was also signed by Justices González and Gordon McCloud.

Leading Organized Crime. Only crimes listed in RCW 9A.82.010(4) as predicate offenses may be joined to a count of “leading organized crime,” Washington’s Criminal Profiteering Act (CPA), RCW 9A.82.060(1)(a). The “joinder bar” statute, RCW 9A.82.085, rather than CrR 4.4’s discretionary severance standard applies when leading organized crime is charged. Convictions affirmed as the record, which is devoid of defense counsel’s reasons (or lack of reasons) for choosing to defend against these crimes in one prosecution rather than several, does not establish ineffective assistance of counsel. State v. Linville, No. 94813-5 (Aug. 16, 2018). Justices González, Johnson and Yu concurred in the result only.

Frivolous Lawsuits. Eighteen month suspension of attorney for violating RPC 3.1, RPC 4.4(a), and RPC 8.4(d), by intentionally and knowingly filing frivolous pleadings, including a LUPA, with the intent to harass and annoy his neighbors, affirmed. Baseless litigation is not immunized by the First Amendment Right to Petition. In re Discipline Of: David Cottingham, No. 201,704-5 (Aug. 16, 2018).

Division One

Public Records Act. The PRA provides for a single cause of action arising from an alleged PRA denial, regardless of how many individuals were involved in making the request. An attorney, who makes a Public Records Act (PRA) request on behalf of a client, lacks standing to sue for a PRA violation; the cause of action belongs to the client. Creer Legal v. Monroe School District, COA No. 76814-0-I (Aug. 13, 2018).

Restoration of Firearm Rights. A sealed juvenile class A felony adjudication does not render a person ineligible for restoration of firearm rights. Woodward v. State, COA No. 76932-4-I (Aug. 13, 2018).

Ninth Circuit

Writs of Restitution. Plaintiff’s action for declaratory and injunctive relief against the sheriff, to prevent the sheriff from enforcing RCW 59.18.375, could proceed under the public interest exception to the mootness doctrine. Judicial immunity is not available to the sheriff in an action as the doctrine only bars suits seeking damages, and does not preclude a court from granting declaratory or injunctive relief. Whether RCW 59.18.375, which allows for the issuance of a writ of restitution in non-payment of rent situations without a court hearing is unconstitutional should be resolved on remand. Moore v. Urquhart, No. 16-36086 (9th Cir. Aug. 16, 2018).

Section 1983 and Brady. A detective, who withheld material impeachment evidence under Brady v. Maryland and Giglio v. United States during a 1997-98 investigation, is not protected by qualified immunity in a lawsuit brought by a woman who was wrongly imprison for seventeen years. Mellen v. Winn, No. 17-55116 (9th Cir. Aug. 17, 2018).

Ethics

Prosecutorial Misconduct. This article demonstrates that, contrary to expectations, prosecutorial misconduct occurs with reassuring infrequency. The article also proffers a few explanations for the persistence of the myth that prosecutorial misconduct is endemic, discusses various problems related to the criminal justice system that are improperly attributed to prosecutors, and evaluates a few well-intentioned but misguided proposals intended to remedy prosecutorial misconduct. Timothy Harker, Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct, Tennessee Law Review, Vol. 85, No. 4, 2018.

WEEKLY ROUNDUP FOR AUGUST 10, 2018

Washington Supreme Court

Employer Tort Liability. An action based on negligent training and supervision is applicable only when the employee is acting outside the scope of his employment. But if the employee is acting within the scope of his employment, then an employer is vicariously liable under the principles of agency. A duty of supervision claim requires evidence that the employer knew or should have known of the dangerous tendencies of the particular employee. Anderson v. Soap Lake School District, No. 93977-2 (Aug. 9, 2018). Justice Gordon McCloud authored a partial dissent, which was also signed by Justices Stephens, Yu and González.

Land Use, Monetary Damages, and Exhaustion of Administrative Remedies. The Land Use Petition Act’s administrative exhaustion requirement does not bar all tort claims. The evidence was sufficient to support the jury’s finding of a substantive due process violation under 42 U.S.C. § 1983 when the plaintiff had a permit to mine and two letters from the County which could be interpreted broadly as an agency determination that the property owner had complied with all of the permit’s premining conditions, and where two of the county’s board commissioners deliberately interfered with the impartiality of the department’s decision-making process. An aggrieved party cannot recover prelitigation, administrate fora attorney fees intentionally caused by the tortfeasor under a tortious interference claim. While RAP 18.1 applies to requests for appellate attorney fees under 42 U.S.C. § 1983, the separate argument requirement is satisfied by a brief (in this case 2 sentences) request in the body of the brief which cites the federal statute. Maytown Sand & Gravel, LLC v. Thurston County, No. 94452-1 (Aug. 9, 2018).

On August 7, 2018, the Washington Supreme Court granted review of the following case:

Legal Financial Obligations. State v. Catling, No. 95794-1. Spokane County. “Granted on the Social Security Act antiattachment issue only.” Issue presented: Whether the imposition of mandatory LFOs on a defendant how receives social security disability payments is valid as long as the court specifies that payments cannot come from the defendant’s social security disability income. The petition for review and an amicus from Disability Rights Washington in support of review are both available on the court’s website. The court of appeal’s opinion is reported at 2 Wn. App. 2d 819 (2018).

Division One

Public Records Act. Records associated with union organizing created by, received by, or in the possession of specifically named employees and specified e-mail addresses are not “public records” under the Public Records Act, because they were not prepared, owned, used or retained within the scope of employment. Service Employees International Union Local 925 v. University of Washington, COA No. 76630-9-1 (Jun. 11, 2018, publication ordered Aug. 8, 2018).

Division Two

Community Custody. A community custody condition that provided: “The defendant shall not loiter in nor frequent places where children congregate such as parks, video arcades, campgrounds, and shopping malls,” is unconstitutionally vague. State v. Wallmuller, COA No. 50250-0-II (Aug. 7, 2018). [Editor’s Note: This opinion creates a conflict with Division Three’s July 17, 2018, opinion in State v. Johnson, COA No. 34928-4-III. Division Three held that a condition that demands the defendant “[a]void places where children congregate to include, but not limited to: parks, libraries, playgrounds, schools, school yards, daycare centers, skating rinks, and video arcades,” is not unconstitutionally vague. The term “children,” however, must be limited to individuals under the age of 16.]

Waiver of Filing Fees and Inmates. RCW 4.24.430, which requires a court to deny an inmate’s request to waive filing fees in any civil action or appeal against the State where the inmate has brought at least three prior actions that were dismissed because they were “frivolous or malicious” and where the action would not affect the duration of confinement is not unconstitutionally vague and does not violate equal protection. Procedural due process requires the court clerk’s letter ruling to identify the prior actions that the clerk relies on in determining that RCW 4.24.430 applies to a particular inmate. In re Personal Restraint of Troupe, COA No. 50657-2-II (Aug. 7, 2018).

Legal Financial Obligations. The trial court’s inquiry into the defendant’s work history and whether there was any reason why the defendant could not work was inadequate to assess whether the defendant had the ability to pay discretionary LFOs. A court must also inquire into debts and assets. State v Glover, COA No. 49944-4-II (Aug. 7, 2018).

Legal Update for Washington State Law Enforcement

The July 2018 edition of the Legal Update for Washington State Law Enforcement, which is authored by John Wasberg and which is hosted on the Washington Association of Sheriffs and Police Chief’s web site is now available.

WEEKLY ROUNDUP FOR AUGUST 3, 2018

Washington Supreme Court

Time Bar and Petitions for Resentencing Based Youth. State v. O’Dell, 183 Wn.2d 680 (2015), which held that while “age is not a per se mitigating factor,” a sentencing court “must be allowed to consider youth as a mitigating factor when” relevant, does not provide an exception to RCW 10.73.090(1)’s one year time bar on collateral attacks. O’Dell was not a “significant and material change in the law.” RCW 10.73.100(6). In re Personal Restraint of Light-Roth, No. 94950-6 (Aug. 2, 2018). Justice González concurred in the result.

Possession of Stolen Property. Possession of a stolen vehicle is not an “alternative means” or “all means” crime. The inclusion of the definition of “possession” in the “to convict” jury instruction does not require the State to prove that the defendant “knowingly received, retained, possessed, concealed, and disposed of a stolen motor vehicle.” RCW 9A.56.140(1). The State’s failure to place an “or” between “concealed” and “disposed” in the “to convict” instruction does not require reversal where the definitional jury instruction contained the word “or.” State v. Tyler, No. 93770-2 (Aug. 2, 2018). Justice Gordon McCloud authored a concurring opinion which was signed by Justice Fairhurst.

Denial of a Peremptory Challenge. The erroneous denial of a peremptory challenge authorized by the criminal rules is not a structural error. In re Personal Restraint of Meredith, No. 94582-0 (Aug. 2, 2018). . Justice Yu concurred.

Ineffective Assistance of Appellate Counsel. Appellate counsel was not ineffective for failing to raise the denial of a non-constitutional denial or peremptory challenge in the direct review because, under RAP 2.5(a), the appellate court could have refused to hear the claim of error because it was not objected to at trial and it is not a type of structural error that requires automatic reversal. In re Personal Restraint of Meredith, No. 94582-0 (Aug. 2, 2018). Justice Yu concurred.

Time Bar and Double Jeopardy. Double jeopardy claims are exempt from the one-year time bar on collateral challenges. In re Personal Restraint of Schorr, No. 94951-8 (Aug. 2, 2018).

Guilty Pleas and Waivers of Appeals and Collateral Attacks. A defendant cannot waive his right to: (1) assert constitutional violations that arise after the entry of the plea,; (2) effective assistance of counsel in a plea agreement; (3) be sentenced free from constitutionally impermissible factors such as race; and (4) to challenge a sentence in a plea agreement that exceeds the court’s statutory authority. A defendant can waive the right to appeal or assert other challenges to his sentence or conviction. In re Personal Restraint of Schorr, No. 94951-8 (Aug. 2, 2018).

Double Jeopardy and Guilty Pleas. Criminal defendants cannot pick and choose the portions of the charges to which they will plead guilty. Where the defendant was charged with first degree murder by two alternative means: premeditated murder and felony murder predicated on first degree robbery, his first degree robbery conviction does not merge with the first degree premeditated murder conviction. In re Personal Restraint of Schorr, No. 94951-8 (Aug. 2, 2018).

Sexually Violent Predators. The admission of expert testimony on a diagnosis of “paraphilia not otherwise specified (NOS), persistent sexual interest in pubescent aged females, non-exclusive,” was not an abuse of discretion. “Paraphilia NOS” is a generally accepted diagnosis within the psychological community. In re Detention of Black, No. 94494-6 (Aug. 2, 2018). Justices Madsen, Wiggins, Gordon McCloud and Stephens dissented.

Division Two

Life Without the Possibility of Parole. Sentencing a defendant with age-related dementia to mandatory life imprisonment without the possibility of parole under RCW 10.95.030(1) is not categorically barred by article I, section 14’s prohibition against cruel punishment. State v. Moen, COA No. 49474-4-II (Jul. 31, 2018).

Midtrial Motion to Excuse Juror. The trial court did not abuse its discretion in denying the defendant’s midtrial motion to excuse a juror who did not disclose during voir dire that she met with members of the defendant’s family to discuss long-term care, where the juror did not deliberately conceal the fact during voir dire. The juror disclosed the potential conflict soon after hearing testimony regarding the defendant’s attempted suicide and resulting injuries, and she unequivocally stated that she would decide the case fairly, based on the facts and evidence presented. State v. Moen, COA No. 49474-4-II (Jul. 31, 2018).

Division Three

Reempaneling Jury. A discharged jury may be recalled to complete a corrected verdict when the time since discharge is short and external influences have not compromised the jury’s impartiality. State v. Clements, COA No. 35112-2-III (Aug. 2, 2018).

Ninth Circuit

Federal Grants. In the absence of congressional authorization, the Executive Branch may not withhold all federal grants from so-called “sanctuary” cities and counties. City and County of San Francisco v. Trump, No. 17-17478 (9th Cir. Aug. 1, 2018).

State Bar of Nevada Standing Committee on Ethics and Professional Responsibility

Ineffective Assistance of Counsel. A criminal defense lawyer facing allegations of ineffective assistance of counsel from a former client may disclose confidential information relating to representation of the client to the extent the lawyer reasonable believes necessary to defend against the allegations. Any disclosure must be narrowly tailored to the issues raised by the former client. Formal Opinion No. 55.

WEEKLY ROUNDUP FOR JULY 27, 2018

Washington Supreme Court

DOSA Revocations. A fact that necessarily results in DOSA revocation must be proved by a preponderance of the evidence. If the underlying infraction is not proved by a preponderance of the evidence, the Department of Corrections (DOC) may not terminate the defendant’s treatment. DOC must determine on a case-by-case basis whether an individual facing DOSA revocation should be appointed counsel. Personal Restraint of Schley, No. 94280-3 (Jul. 26, 2018) (plurality opinion). Lead opinion signed by Justices Owens, Wiggins, Yu and Gordon McCloud. Justice González wrote separately to indicate his concern by the very low burden of proof – “some evidence” – used in prison disciplinary cases. Justices Fairhurst, Madsen, Johnson and Stephens dissented.

Offender Scores. The defendant must allege a constitutional defect on the face of a prior conviction to challenge the conviction’s validity for purposes of offender score calculation in an otherwise unrelated proceeding. The court may not go behind the judgment and sentence and engage in statutory interpretation to determine the facial validity of a prior conviction for current sentencing purposes. State v. Blair, No. 93995-1 (Jul. 26, 2018). Justice Gordon McCloud authored a concurring opinion which was also signed by Justices Stephens and Madsen.

Restoration of Firearm Rights. RCW 9.41.040(4)(a)(ii)(A) doe not require a petitioner to be conviction-free for five consecutive years or more immediately preceding the filing of the petition. Any five-year conviction-free period will satisfy the terms of RCW 9.41.040(4)(a)(ii)(A). State v. Dennis, No. 95083-1 (Jul. 26, 2018). Justices González, Fairhurst and Yu dissented.

Public Works Contract and Employment Discrimination. A gender discrimination claim based upon the county making the performance of the work under an offered contract more difficult than if the contract had been awarded to a member of the opposite sex was improperly dismissed on summary judgment, where the official overseeing the bidding process commented upon the successful bidder’s attire during the scheduled walk-through, called to discourage her from bidding on the project, the male-owned business received an unscheduled private walk-through, only the contractor status of the female-owned company was checked prior to awarding the bid, the county continued to track the contractor status post-award of bid, and altered the contract to require a bond. Specialty Asphalt & Construction, LLC. v. County of Lincoln, No. 95085-7 (Jul. 26, 2018). Justices Gordon McCloud and Johnson dissented on this point.

Public Works Contract and Negligent Misrepresentation. Summary judgment was improperly granted on the negligent misrepresentation claim as the plaintiff had incurred expenses prior to performance basedupon the bid’s statement that no bond would be required. The public duty doctrine will not bar a company’s negligent misrepresentation claim against the county as once the contract was awarded there was a “special relationship” between the county and the plaintiff. Specialty Asphalt & Construction, LLC. v. County of Lincoln, No. 95085-7 (Jul. 26, 2018).

Public Works Contract and Breach of Contract. A company that was awarded a public works contract was not entitled to pursue monetary damages for its breach of contract claim. The only remedy available to the company, which did not perform under the contract, is injunctive relief. Specialty Asphalt & Construction, LLC. v. County of Lincoln, No. 95085-7 (Jul. 26, 2018).

Division Two

Waiver of Appeal. A written plea agreement provision that waived the defendant’s right to ““any and all other appellate rights [other than the right to appeal any sentence outside of his standard sentencing range] as part of this plea agreement in accordance with State v. Lee,” does not waive the defendant’s right to challenge the validity of his guilty plea. The waiver of appeal does, however, prevent the defendant from challenging the offender score calculation. State v. Harris, COA No. 49641-1-II (Jul. 24, 2018).

Voluntariness of Guilty Pleas. A defendant’s guilty plea to crimes he did not commit in order to take advantage of a plea offer pursuant to In re Barr, was valid where the record demonstrates that the defendant knew the “greater charge” he was seeking to avoid was premeditated first degree murder and the probable cause declaration detailed the evidence available to the State on the original charge. State v. Harris, COA No. 49641-1-II (Jul. 24, 2018).

DOSA Revocations. The Department of Corrections (DOC) must advise inmates serving DOSA sentences that they may request to be represented by counsel at a UA violation hearing and that their request will be considered on a case-by-case basis. DOC’s revocation of a DOSA under RCW 9.94A.662(3) does not violate separation of powers. Personal Restraint of Bufalini, COA No. 50785-4-II (May 10, 2018, publication ordered Jul. 24, 2018).

Kidnapping. Kidnapping is a continuing course of conduct that includes the act of abduction itself and the continued restraint of a victim’s liberty. Double jeopardy was not violated by convictions for first degree kidnapping and attempted first degree kidnapping where the victim regained her liberty by escaping the defendant’s initial restraint. Though the defendant immediately pursued the victim, she was no longer restrained when the defendant attempted to kidnap her again. State v. Classen, COA No. 49762-0-II (Jul. 24, 2018).

Vehicular Homicide and Vehicular Assault. When a defendant claims that a superseding cause negates proximate cause, the jury must be instructed that the State has the burden to prove the absence of a superseding cause. The absence of a superseding cause, however, is not an element that must be added to the “to convict” instruction. State v. Imokawa, COA No. 49995-9-II (Jul. 24, 2018).

Voluntary Intoxication. The defendant’s failure to provide competent evidence as to whether methamphetamine or heroin can affect his ability to form the requisite intent was fatal to a request for a voluntary intoxication instruction. Defense counsel was not ineffective in failing to assert a voluntary intoxication defense as a history and diagnosis of amphetamine use disorder will not support the defense absent expert testimony or some other evidence establishing that methamphetamine use affected the defendant’s ability to form the requisite intent. State v. Imokawa, COA No. 49995-9-II (Jul. 24, 2018).

Ineffective Assistance of Counsel and Inferior Degree Offenses. Defense counsel provided constitutionally deficient representation by not requesting an inferior degree offense where his closing argument demonstrated that the failure to request such an instruction was not a legitimate trial strategy. Counsel’s closing argument contained this statement: “[Classen] is guilty of assault. There is no question about that. What kind of assault is it? That’s the question.” State v. Imokawa, COA No. 49995-9-II (Jul. 24, 2018).

Local Initiatives. A superior court has the authority to conduct a pre-election review of a proposed initiative to determine whether the initiative is beyond the scope of the local initiative power and whether any of the provisions conflict with state law. An injunction preventing the initiative from appearing on the ballot does not violate the proponent’s right to free speech. Port of Tacoma v. Save Tacoma Water, COA No. 49263-6-II (Jul. 25, 2018).

Division Three

Public Records Act. Agency culpability is only one of a series of factors to be taken into account in assessing a PRA penalty. The trial court did not abuse its discretion in assessing a relatively low daily fine where the problems leading up to the PRA violation were attributable solely to one employee and, given that employee’s retirement, a large penalty would not be necessary to deter future PRA violations. Hoffman v. Kittitas County, COA No. 35091-6-III (Jul. 24, 2018). Judge Lawrence-Berrey concurred in a separate opinion.

Ninth Circuit

Judicial Bias. Capital defendant’s right to due process was violated where the judge who presided over the trial never informed the defendant that the FBI agent/murder victim had investigated the judge for possible criminal prosecution. This unrevealed connection created a constitutionally intolerable risk of judicial bias. Echavarria v. Filson, No. 15-99001 (9th Cir. Jul. 25, 2018).

Witness Exclusion Orders. Fed. R. Evid. 615 prohibits a sequestered witness from not only attending a hearing or trial, but reading transcripts from it. An appropriate sanction for violating a Rule 615 sequester order is to allow the defense to cross-examine the witness about his/her exposure to the transcripts. United States v. Robertson, No. 16-10385 (9th Cir. Jul. 20, 2018).

Tennessee Supreme Court Board of Professional Responsibility

Prosecutors and RPC 1.8 and 8.4(d). Prosecuting attorney censured for entering into an agreement to publish a book about the convictions of three people for murder, after he was successful in getting murder convictions as the lead prosecutor in the matter. The publication of the book prior to the conclusions of the appeals of two of the convictions violated RPC 1.8 (conflict of interest) and RPC 8.4(d) (prejudice to the administration of justice). In re Brooks, No. 44880-1-ES (July 13, 2018). Additional facts available here.

WEEKLY ROUNDUP FOR JULY 20, 2018

Division Three

Conditions of Community Custody. Conditions restricting the defendant’s access to nude images and images of children wearing only undergarments and/or swimsuits are invalid as overbroad and not crime related. Conditions prohibiting the possession or viewing of material that shows women, men, and/or children engaging in sexual acts with each other, themselves, with an object, or animal, and attendance at X-rated movies, peep shows, or adult book stores are overly broad and not sufficiently crime related. To the extent Alocer and Magana condoned such conditions, these decisions are “no longer good law after Padilla.” A condition that demands the defendant “[a]void places where children congregate to include, but not limited to: parks, libraries, playgrounds, schools, school yards, daycare centers, skating rinks, and video arcades,” is not unconstitutionally vague. The term “children,” however, must be limited to individuals under the age of 16. State v. Johnson, COA No. 34928-4-III (July 17, 2018). Judge Fearing dissented on the grounds that the “avoid places” condition should be reformed further.

“Old Chief” Stipulations and Post-Conviction No Contact Orders. Old Chief v. United States, 519 U.S. 172, 191-92 (1997), which holds that where the existence of a prior conviction is an element of an offense, the trial court must accept the accused’s offer to stipulate to the prior conviction, also applies to an accused’s offer to stipulate to a post-conviction no-contact order. State v. Taylor, COA No. 35172-6-III (Jul. 17, 2018). [Editor’s Note: Defense counsel may not stipulate to the existence of a prior predicate conviction or the existence of a post-conviction no-contact order over the defendant’s objection. State v. Humphries, 181 Wn.2d 708 (2014). Best practice is to obtain defendant’s agreement to the stipulation on the record in open court.]

Guilty Pleas. A defendant may assert that the trial court violated his due process rights by accepting a guilty plea for the first time on appeal when the challenge is based upon the defendant’s denial of an element of the charged crime at the plea hearing. When a defendant’s oral statement at a plea hearing conflicts with the defendant’s written statement, the court must inquire further and may only accept the guilty plea upon determining that the defendant actually understands the elements of the crime and is admitting to the prohibited conduct. State v. Taylor, COA No. 35172-6-III (Jul. 17, 2018).